Time Waits for No Man—But Is Tolled for Certain Post-Judgment Motions: Federal Rule of Appellate Procedure 4(A)(4) and the Fate of Withdrawn Post-Judgment Motions

By: Lena Husani Hughes


In 2007, the Supreme Court, in Bowles v. Russell, determined that Federal Rule of Appellate Procedure 4(a)(6)’s appeal deadline is a jurisdictional requirement. Failure to meet the deadline cannot be excused, as it divests the court of appeals of jurisdiction over the case. In reaching its conclusion, the Court invalidated the unique circumstances doctrine, an equitable doctrine that judges and justices had previously applied in order to excuse untimely filings of notices of appeal in special cases. As to why this particular deadline amounted to a jurisdictional requirement, the Court laid emphasis on the fact that the deadline had been set forth, by Congress, in a statute. The decision led to the natural conclusion that other appeal deadlines in Rule 4 that have been codified are likewise jurisdictional, and cannot be relaxed in response to equitable considerations. This Note focuses on the appeal deadlines in Rule 4(a), and in particular the provision in Rule4(a)(4) that tolls these deadlines when certain post-judgment motions are filed in the district court. A qualified post-judgment motion traditionally tolls the appeal deadline until the district court has entered judgment on the motion. However, when a post-judgment motion is voluntarily withdrawn, rather than decided by the district court, a question arises as to whether the appeal deadline was effectively tolled. The language of Rule 4(a)(4) on the matter is unsatisfying and unclear, leading courts to reach different conclusions about the effectiveness of a withdrawn post-judgment motion and the timeliness of an appellant’s notice of appeal. A determination that a withdrawal nullifies the tolling effect of the post-judgment motion can render a notice untimely, and given the Supreme Court’s decision in Bowles v. Russell, courts of appeals are now clearly without equitable power to excuse such untimeliness. With the right to appeal in the balance, this Note considers how Rule 4(a)(4) ought to be read in light of the text of the rule, the jurisdictionality of the appeal deadlines, and the history of Rule 4.


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