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Two Courts Interpret Provisions of Federal Appellate Rule 4; Prisoner Appeals Dismissed as Untimely

Two different federal circuit appeals courts have interpreted provisions of Federal Rule of Appellate Procedure 4, which relates to the filing of notices of appeal. Both courts held the prisoners failed to comply with the rule and dismissed the appeals.


First, Delaware state prisoner Samuel T. Poole filed a civil rights action alleging interference to access to his son by several public officials and private individuals. The Delaware federal district court dismissed, holding it had no personal jurisdiction over two defendants and the remaining claims were frivolous. That order was entered on March 26, 2002, and Poole deposited his notice of appeal in his prison's internal mail system 44 days later.


On appeal, Poole argued there was a delay in him receiving notice from the clerk regarding the order's entry due to his transfer to another prison, so his notice of appeal should be regarded as timely. Poole never formally advised the court or clerk of his address change. When the clerk's notice of the orders entry was returned due to the transfer, the clerk faxed the Department of Corrections an "address request." Poole finally received the court's order on May 6 and mailed his notice of appeal three days later.


The Third Circuit held that Poole could not obtain relief. His notice of appeal could not be treated as a motion to reopen the time to file a notice of appeal under Fed.R.App.P. 4(a)(6). That rule allows a district court to reopen, for 14 days, the time to appeal if it finds: (1) the motion was filed within 180 days after the judgment or order was entered or 7 days after the party receives notice of the entry, whichever is earlier; (2) the moving party was entitled to notice of the entry, but did not receive it from the court or a party within 21 days; and (3) no party would be prejudiced.


Fed.R.Civ.P 4(a)(1) requires a notice of appeal to be filed with the district clerk within 30 days after the judgment or order appealed from is entered. The court held that a notice of appeal could not be treated as a motion to reopen Rule 4(a)(6). The court acknowledged this holding conflicted with Sanders v. United States, 113 F.3d 184 (7th Cir. 1997). Nonetheless, the court concluded Rule 4(a)(6) demands a motion. As Poole failed to file a motion to reopen the time to appeal, his notice of appeal was untimely, and the appeal was dismissed. See: Poole v. Family Court of New Castle, 368 F.3d 263 (3rd Cir. 2004).


The second ruling resulted after the conviction of Kenneth Craig for being a felon in possession of a firearm in the Eastern District of Wisconsin federal court. At sentencing, Craig announced he did not want to appeal, but the Court advised him that his lawyer would continue to represent him through the period allowed for appeal and would file a notice at his request.


Craig's judgment was entered on March 12, 2003, and his time to appeal expired on March 26 under Fed.R.App.P. 4(6)(1)(A)(I), 26(a). On April 8, the district court received a notice of appeal personally signed by Craig. When the Court asked the parties to address the appeal's timeliness, Craig's attorney asked for an extension of 30 days under Rule 4(6)(4). That motion represented Craig changed his mind about an appeal and submitted the notice pro se because he thought his attorney would no longer represent him. The Court denied the motion on the basis that good cause was not demonstrated.


On appeal, Craig swore under oath that he deposited his notice of appeal in the prison mailbox on March 20. He argued he should receive benefit of the "mailbox rule" for prisoners. See: Fed.R.App.P. 4(c)(1). That rule requires two things by declaration in compliance with 28 U.S.C. § 1746 or notarized statement: (1) it set forth the date of deposit; and (2) state that first-class postage has been prepaid.


The Seventh Circuit found Craig only complied with 50% of rule. Specifically, he failed to verify he had prepaid first-class postage. The Court said this was important because "mail bearing a stamp gets going, but an unstamped document may linger." As Craig failed to fully comply with the mailbox rule, the Court held he could not receive its benefits, and his appeal was dismissed. See: United States v. Craig, 368 F.3d 738 (7th Cir. 2004).

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United States v. Craig

United States v. Craig, 368 F.3d 738 (7th Cir. 05/13/2004)

[1] In the United States Court of Appeals For the Seventh Circuit


[2] No. 03-2424


[3] 368 F.3d 738, 2004, 58 Fed.R.Serv.3d 309


[4] May 13, 2004


[5] UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KENNETH N. CRAIG, DEFENDANT-APPELLANT.


[6] Appeal from the United States District Court for the Eastern District of Wisconsin. No. 02-CR-179 -- Charles N. Clevert, Jr., Judge.


[7] Before Easterbrook, Evans, and Williams, Circuit Judges.


[8] The opinion of the court was delivered by: Easterbrook, Circuit Judge.


[9] ARGUED APRIL 20, 2004


[10] Charged with possessing a firearm despite being a convicted felon, see 18 U.S.C. §922(g), Kenneth Craig pleaded guilty and was sentenced to 57 months' imprisonment. At the conclusion of sentencing, Craig announced that he did not want to appeal. Just in case, however, the judge told Craig that his lawyer would continue to represent him through the period allowed for appeal and would file a notice at his request. Craig said that he understood.


[11] The judgment was entered on March 12, 2003, so the time for appeal expired on March 26. See Fed. R. App. P. 4(b)(1)(A)(i), 26(a). On April 8 a notice of appeal, signed by Craig personally, arrived at the district court. When we directed the parties to address the question whether the appeal is timely, Craig's lawyer asked the district judge for a 30-day extension under Rule 4(b)(4). The application represented that Craig had changed his mind while in prison and then prepared and mailed a notice on his own because he thought that his lawyer would no longer represent him. The district court denied this motion, ruling that changing one's mind after the time for appeal has expired is not "good cause" for an extension, and that Craig is in no position to plead ignorance in light of the information furnished in open court.


[12] Despite this ruling, Craig has bombarded us with additional statements and affidavits in an effort to show an entitlement to an appellate decision. The latest asserts that he put the notice of appeal in the prison mail system on March 20, while time remained, and that he acted pro se not because of any misunderstanding but because he feared that he would not be able to reach counsel by phone before the time for appeal expired. We directed the parties to brief the jurisdictional question along with the merits -- which we need not reach.


[13] Having told the district judge that he changed his mind and mailed his notice after the time for appeal expired, Craig now tells us that he appealed in time after all -- if he really did deposit the notice on March 20 and if he is entitled to the benefit of the "mailbox rule" for prisoners. See Fed. R. App. P. 4(c). We doubt that a litigant who says one thing to the district judge in an effort to get an extension of time should be allowed to advance an inconsistent view of the facts after the district judge says no. Perhaps these seemingly divergent assertions could be reconciled on the ground that Craig wrongly thought that the time expired before March 20 because he does not understand how the federal rules calculate time. Sentencing took place on March 6, but the clock does not start until a judgment is entered on the docket, and when the time is 10 days or fewer intermediate weekends and holidays are excluded. Thus "10 days" ran from March 6 to March 26, while a layperson might have supposed that the time expired on March 16. It does not matter. We may suppose that things happened exactly as Craig now says -- notice deposited in the prison mail system on March 20 but delayed in transit to the district court. That is not enough to make the appeal timely.


[14] The United States contends that the appeal is late because the mailbox rule applies only if the prisoner is unrepresented. As we said in United States v. Kimberlin, 898 F.2d 1262, 1265 (7th Cir. 1990), a prisoner who has the assistance of counsel need only pick up the phone. Craig did not try that route, and the United States contends that he therefore cannot take advantage of the mailbox rule. Yet Kimberlin addressed the status of the mailbox rule when it was a matter of common law, having been invented in Houston v. Lack, 487 U.S. 266 (1988). Rule 4 was rewritten in 1993 (and revised in 1998) not only to make the mailbox rule official but also to impose some limits. Rule 4(c)(1) requires a prisoner to use a legal-mail system if the prison has one. (This provides verification of the date on which the notice was dispatched.) If the prison lacks such a system: "Timely filing may be shown by a declaration in compliance with 28 U.S.C. §1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. " Ibid.


[15] Today the mailbox rule depends on Rule 4(c), not on how Kimberlin understood Houston. Rule 4(c) applies to "an inmate confined in an institution". Craig meets that description. A court ought not pencil "unrepresented" or any extra word into the text of Rule 4(c), which as written is neither incoherent nor absurd. Craig therefore is entitled to use the mailbox rule. Accord, United States v. Moore, 24 F.3d 624, 626 n.3 (4th Cir. 1994).


[16] Still, to get its benefit he had to comply with it, and he did not -- not when he filed the appeal, and not in the ensuing year. His affidavit states that he deposited the notice in the prison mail system on March 20, 2003, but not that he prepaid first-class postage. Rule 4(c)(1) requires the declaration to state only two things; 50% is not enough. The postage requirement is important: mail bearing a stamp gets going, but an unstamped document may linger. Perhaps that is exactly what happened: Craig may have dropped an unstamped notice of appeal into the prison mail system, and it took a while to get him to add an envelope and stamp (or to debit his prison trust account for one). The mailbox rule countenances some delay, but not the additional delay that is inevitable if prisoners try to save 37ó plus the cost of an envelope. Rule 4(c)(1) is clearly written; any literate prisoner can understand it (and Craig is literate). Respect for the text of Rule 4(c) means that represented prisoners can use the opportunity it creates; respect for the text equally means that prisoners must use that opportunity in the way the rule specifies. If we were authorized to revise the rule (which we are not), we would be more likely to interpolate "unrepresented" in front of "inmate" than to delete the phrase "and state that first-class postage has been prepaid."


[17] Craig's notice of appeal was untimely, and his appeal is dismissed.

Poole v. Family Court of Newcastle

Poole v. Family COurt of New Castle County, 368 F.3d 263 (3d Cir. 05/13/2004)

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


[2] No. 02-2364


[3] 368 F.3d 263, 2004, 58 Fed.R.Serv.3d 487


[4] May 13, 2004


[5] SAMUEL T. POOLE, APPELLANT
v.
FAMILY COURT OF NEW CASTLE COUNTY; JOHN DOE EMMA HAYES; FLORENCE F. WRIGHT, ESQ.; JOHN W. NAILS, ESQ.; EDWARD J. ZETUSKY, JR.; WALTER T. REDAVID, ESQ., JUDGE; DELAWARE COUNTY BAR ASSOCIATION; ROBERT SNYDER; WARDEN; ATTORNEY GENERAL OF THE STATE OF DELAWARE; LORETTA M. YOUNG


[6] ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (Dist. Court No. 01-cv-00297) District Court Judge: Hon. Joseph J. Farnan, Jr.


[7] Charles R.A. Morse (argued) Jones Day 51 Louisiana Avenue, N.W. Washington, D.C. 20001-2113 Counsel for Appellant


[8] Kathleen M. Miller (argued) Smith, Katzenstein & Furlow 800 Delaware Avenue, 7th Floor Wilmington, DE 19899 Counsel for Appellee - John W. Nails, Esq.


[9] Stuart B. Drowos (argued) Delaware Department of Justice 820 North French Street Wilmington, DE 19801-3509 Counsel for Appellees - Loretta Young and the Family Court of Delaware in and for the County of New Castle


[10] Before: Sloviter, Alito, and FRIEDMAN,*fn1 Circuit Judges


[11] The opinion of the court was delivered by: Alito, Circuit Judge


[12] PRECEDENTIAL


[13] Argued: December 2, 2003


[14] OPINION OF THE COURT


[15] This is an appeal from an order of the District Court dismissing all of the claims asserted in the pro se complaint filed by Samuel T. Poole ("Poole"), an inmate. Poole's notice of appeal was not filed on time, apparently because of delay in receiving notice of the entry of the order dismissing his claims. Instead of moving to reopen the time to file an appeal under Rule 4(a)(6) of the Federal Rules of Appellate Procedure, Poole filed a notice of appeal shortly after finally receiving notice. We hold that we lack jurisdiction to entertain this appeal.


[16] II.


[17] A.


[18] Before reaching the merits of this appeal, we are required to consider whether we have appellate jurisdiction. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). The timeliness of an appeal is a mandatory jurisdictional prerequisite. United States v. Robinson, 361 U.S. 220, 224 (1960). In a civil case, Rule 4(a)(1) of the Federal Rules of Appellate Procedure generally requires a notice of appeal to be "filed with the district clerk within 30 days after the judgment or order appealed from is entered." In this case, the order dismissing Poole's complaint was entered on March 26, 2002, and Poole deposited his notice of appeal in his prison's internal mail system 44 days later. Under Appellate Rule 4(c)(1), Poole's notice of appeal is regarded as having been filed upon mailing, but because he did not mail the notice of appeal within 30 days after the relevant order was entered, he did not comply with Rule 4(a)(1).


[19] I.


[20] This case concerns the paternity of a minor who Samuel T. Poole claims is his son. In 2001, Poole filed what he called a "Petition for a Writ of Habeas Corpus" against several public officials and private individuals, alleging that a series of actions taken in connection with two family law proceedings one in Delaware and the other in Pennsylvania violated his Fifth and Fourteenth Amendment rights by interfering with his access to his son. The District Court treated the case as an action filed under 42 U.S.C. § 1983 and permitted Poole to proceed in forma pauperis. The District Court then dismissed the claims against two defendants sua sponte for lack of personal jurisdiction, and the Court dismissed the claims against the remaining defendants as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).


[21] B.


[22] Poole argues that his notice of appeal should be regarded as having been filed on time because there was a delay in his receipt of notice from the district court clerk's office regarding the entry of the order of dismissal. This delay resulted from Poole's transfer from one correctional institution to another shortly before the order of dismissal was entered. When Poole made his initial filing and until some time in late March 2002, he was incarcerated in the Delaware Correctional Center in Smyrna, Delaware. When the District Court entered the order dismissing Poole's claims, the clerk of the court apparently sent notice to Poole and all of the other parties on that same day. The notice to Poole was mailed to the facility in Delaware, but by the time it arrived, Poole had been transferred to Pennsylvania's State Correctional Institution at Graterford. The Postal Service returned the notice to the clerk on April 24, 2002, at which time the clerk faxed an "address request" to the Delaware Department of Corrections. The clerk received Poole's new address on April 29 and then mailed a copy of the order to the correct address. Poole received the order on May 6 and mailed his notice of appeal three days later.


[23] Poole argues that handwritten letters that he sent to the District Court and that were received on March 22 and April 1 should have alerted the clerk to his transfer. The first letter was described on the docket sheets as "Letter to Clerk of the Court dated 3/21/02 by Samuel Poole RE: questions regarding Habeas Corpus." This letter bore Poole's address at the Delaware facility, and in the midst of a discussion of other matters, the letter stated: "I will be returning to P.A. 3-24-02 is my Max out date and then my detainer come up...."


[24] The second letter was described in the docket sheets as "Letter by Plaintiff, received 4/1/02, advising the Court he has no pen, paper, or ability to make telephone calls." This handwritten note in its entirety states:


[25] Samuel T. Poole BN 5599 Box 244 Graterford Pa 19426-0244


[26] To: Clerk


[27] It will take me a couple of weeks to get a pen or to make a phone call or to get some paper this is the only way I can contact you with a pencil


[28] Thank you


[29] Samuel T. Poole


[30] By the time this letter was sent and received, the clerk had already mailed notice to Poole's Delaware address, and apparently because this letter did not state expressly that Poole's address had changed and did not request that the clerk change the address listed on the docket, the letter did not alert the clerk's office that the notice sent a few days earlier had been mailed to a facility where Poole was no longer housed.


[31] Poole argues that his notice of appeal should be regarded as having been filed on time under the reasoning of United States v. Grana, 864 F.2d 312 (3d Cir. 1989). In Grana, a criminal case, we held that, "in computing the timeliness of filings which are jurisdictional in nature, any delay by prison officials in transmitting notice of a final order or judgment to an incarcerated pro se litigant shou ld be excluded from th e computation." Id. at 313. In the present case, Poole complains about delay attributable to the clerk's office, not prison officials, but Poole argues that Grana stands for the broad proposition that "when official delay... interferes with receipt of the notice of appeal, that delay 'must be subtracted from calculation of time for appeal.'" Appellant's Br. at 1 (quoting Grana, 864 F.2d at 316).


[32] Poole's argument overlooks the significance of the fact that Grana was a criminal case. Because the present case is civil, the approach that we took in Grana is foreclosed by Federal Rule of Civil Procedure 77(d) and Federal Rule of Appellate Procedure 4(a). Under Civil Rule 77(d), a district court clerk must notify all parties not in default "[i]mmediately upon the entry of an order or judgment." The Rule goes on to state, however, that "[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure." Appellate Rule 4(a), in turn, provides a procedure for reopening the time to file a notice of appeal when the party desiring to appeal does not receive notice of the entry of the judgment or order. In a civil case, therefore, the only way in which a party may obtain relief based on a clerk's failure to serve notice of the entry of a judgment or order is via Appellate Rule 4(a), not via the Grana approach.


[33] The Grana approach remains viable*fn2 in criminal cases because the Federal Rules of Criminal Procedure do not contain any provision analogous to Civil Rule 77(d) and because Appellate Rule 4(b), which deals with appeals in criminal cases, does not contain any provision analogous to Appellate Rule 4(a)(6).*fn3 However, the Grana approach cannot be used to extend the time for filing a notice of appeal in a civil case.*fn4


[34] C.


[35] 1.


[36] The remaining question that we must consider is whether there is any way in which Poole can obtain relief under Appellate Rule 4(a)(6). That Rule states:


[37] The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied: (A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier; (B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and (C) the court finds that no party would be prejudiced.


[38] The terms of Appellate Rule 4(a)(6) thus contemplate the filing of a motion to reopen within seven days after notice is received. Here, Poole concedes that he received notice on May 6, 2002. He thus had until May 13 to move to reopen, but instead of filing a motion to reopen, he simply filed a notice of appeal on May 9. Unless we can construe his notice of appeal as a motion to reopen, he cannot qualify for relief under Appellate Rule 4(a)(6).


[39] 2.


[40] Our court has not decided whether a pro se notice of appeal may be construed as a motion to reopen under Appellate Rule 4(a)(6), but we have held that a notice of appeal cannot be construed as a motion to extend the time to appeal in a civil case under Appellate Rule 4(a)(5). Herman v. Guardian Life Insurance Co., 762 F.2d 288 (3d Cir. 1985) (per curiam). In Herman, we noted that before Appellate Rule 4(a)(5) was amended in 1979, we had been "'generally willing to treat a tardy notice of appeal as the substantial equivalent of a motion to extend the time for filing on the ground of excusable neglect.'" Id. at 289 (citation omitted). We held, however, that the 1979 amendment prevented us from continuing that practice. We noted that the first sentence of Fed. R. App. P. 4(a)(5) permits a district court to extend the time to file a notice of appeal "upon motion," and we observed: "Thus, the filing of a motion is expressly required to obtain an extension of time." Id. We also noted that the Committee Notes on the 1979 amendment to this provision stated that "'[t]he proposed amendment would make it clear that a motion to extend the time must be filed no later than 30 days after the expiration of the original appeal time.'" Id. at 289-90 (quoting Appellate Rule 4(a)(5), C committee Notes, 1979 Amendments). We therefore held that an extension may not be granted under Appellate Rule 4(a)(5) unless a motion is filed.


[41] Every other court of appeals to consider the question has reached the same conclusion. See 16A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARDH. COOPER, AND PATRICK J. SCHILTZ, FEDERAL PRACTICE AND PROCEDURE § 3950.3 at 139 & n.11 (1999 & 2003 Supp.) (citing cases). Not only are these decisions supported by the language of Appellate Rules 4(a)(5) and 4(a)(6) and their Committee Notes, but the contrast with the provision of the Appellate Rules governing an extension of time to file a notice of appeal in a criminal case is striking. Appellate Rule 4(b)(4) expressly states that in criminal cases an extension may be granted "with or without motion."


[42] 3.


[43] The reasoning of Herman and like cases from other circuits militates in favor of a similar interpretation of Appellate Rule 4(a)(6). The critical language in the two rules is not materially distinguishable. Appellate Rule 4(a)(5) states in relevant part:


[44] The district court may extend the time to file a notice of appeal if... a party so moves no later than 30 days after the time proscribed by this Rule 4(a) expires....


[45] (emphasis added). Appellate Rule 4(a)(6) contains similar language:


[46] The district court may reopen the time to file an appeal... if... the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry....


[47] (emphasis added). Likewise, the Committee Notes for the two provisions are hard to distinguish in the respect relevant here. The Notes on the 1979 amendments to Rule 4(a)(5) state:


[48] The proposed amendment would make it clear that a motion to extend the time must be filed no later than 30 days after the expiration of the original appeal time....


[49] (emphasis added).


[50] The Notes on the 1991 amendments to Rule 4(a)(6) state:


[51] Reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier.


[52] (emphasis added).


[53] Because the decision in Herman was based on language in Appellate Rule 4(a)(5) and its Committee Note that is not significantly different from language in Appellate Rule 4(a)(6) and its Committee Note, we conclude that we should apply Herman in the present context as well. We therefore hold that Appellate Rule 4(a)(6) requires a motion to reopen. While "no particular form of words is necessary to render a filing a 'motion,'" Campos v. LeFebvre, 825 F.2d 671, 676 (2d Cir. 1987), a simple notice of appeal does not suffice.


[54] We are aware that the Eleventh Circuit reached a contrary result in Sanders v. United States, 113 F.3d 184 (11th Cir. 1997) (per curiam). While acknowledging the similarity between the language of Appellate Rules 4(a)(5) and (6), see id. at 187 n.5, the Sanders panel gave several reasons for interpreting the rules differently, but we do not find these reasons persuasive.


[55] In part, the Sanders panel seems to have been influenced by a belief that parties who move for an extension under Rule 4(a)(5) are (as a group) less blameless than those (as a group) who move to reopen the time to appeal under Rule 4(a)(6).*fn5 This assessment of the relative blamelessness of the two groups is hardly clear cut. Parties who seek extensions under Rule 4(a)(5) are sometimes entirely blameless for example, those who fail to file on time because of "an act of God or unforeseen human intervention." Pioneer Inv. Serv. Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380, 388-89 (1993) (discussing "excusable neglect" under a bankruptcy rule). And parties who fail to file a timely notice of appeal because they have not received notice of the relevant judgment or order may not be entirely blameless*fn6 for example, the party who is informed by the court that a dispositive order is expected within a week but does not thereafter make any effort to find out whether the order has been issued. In any event, assuming that there is some difference in the relative blamelessness of the two groups, the difference is far too slight to justify divergent interpretations of the very similar language of Rules 4(a)(5) and 4(a)(6).


[56] The remaining reasons given in Sanders are likewise unconvincing. The Sanders Court stated that it had "a duty to liberally construe" a pro se litigant's submission, 113 F.3d at 187 (internal quotation and citation omitted), but this duty cannot justify taking a fundamentally different approach in interpreting filings under Rules 4(a)(5) and 4(a)(6).


[57] Finally, we are not moved by the Sanders panel's argument that its interpretation of Rule 4(a)(6) is needed so that prison officials will not prevent inmates from taking timely appeals by ensuring that they do not receive notice of adverse decisions until after the time to appeal has expired. This argument is based on a hypothetical situation that is unlikely to arise with any frequency, if at all namely, a case in which (a) prison officials risk the consequences of obstructing court mail in order to prevent a prisoner from appealing a district court decision that the prisoner has lost, (b) the prisoner learns of the decision within 180 days, but (c) instead of moving to reopen the time to appeal, the prisoner simply files a notice of appeal. We will not permit our interpretation of Rule 4(a)(6) to be governed by such an extreme hypothetical. If at some time in the future we are presented with such an outrageous case, we are confident that we have the tools to ensure that the right to appeal is not defeated.


[58] In conclusion, we hold that relief under both Appellate Rules 4(a)(5) and 4(a)(6) requires the filing of a motion, not just a notice of appeal. We understand that this interpretation may lead to harsh results under both rules, and it may be that it would be preferable to treat a pro se notice of appeal as a motion under both rules. But we believe that Appellate Rules 4(a)(5) and 4(a)(6) must be read consistently, and thus we conclude that Rule 4(a)(6) demands a motion.


[59] III.


[60] Because Poole's Notice of Appeal was not timely filed and Poole failed to move to reopen the time to file an appeal, we lack jurisdiction to decide the merits of his appeal. Therefore, for the reasons set out above, this appeal is dismissed.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[61] *fn1 The Honorable Daniel M. Friedman, Senior Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation.


[62] *fn2 Grana was decided before Appellate Rule 4(a)(6) was added and corresponding changes were made in Civil Rule 77(d). However, because these changes do not apply to criminal cases, Grana was not affected.


[63] *fn3 The absence of criminal analogs to FED. R. CIV. P. 77(d) and FED. R. APP. P. 4(a)(6) is probably due to the fact that the the vast majority of orders in criminal cases from which a defendant may take an appeal are judgments of conviction and sentence. A criminal defendant must be present when sentenced, and consequently there is no need for the district court clerk to notify the defendant by mail regarding this occurrence. For the same reason, there are not many instances in which a criminal defendant runs the risk of failing to file a timely notice of appeal due to lack of notice regarding the entry of the order from which the appeal is taken. Grana was one of the relatively unusual criminal cases in which a defendant took an appeal from an order other than a judgment of conviction and sentence.


[64] *fn4 Moreover, even if Civil Rule 77(d) and Appellate Rule 4(a) did not preclude us from applying Grana in the civil context, we would be reluctant to extend Grana to a case such as the present one, where the delay was not primarily due to Poole's status as an inmate but to the simple fact that he was moved. Although Poole argues that his letter of April 1 should have alerted the district court clerk that he had been transferred, neither of his letters expressly informed the clerk of that fact or requested that his address be changed in the court's records. It is simply asking too much of the district court clerk to note that the address listed on the April 1 letter was different from the address that Poole had previously provided.


[65] *fn5 The Court stated that "when through no fault of his own, a pro se litigant does not receive notice of the order from which he seeks to appeal, it would be unjust to deprive him of the opportunity to present his claim to this court." 113 F.3d at 187. The Court added that a "notice of appeal filed late because the appellant did not receive notice of the judgment should be treated differently (and more favorably) than those filed late for other reasons (i.e., those governed by Rule 4(a)(5)'s excusable neglect standard)." Id.


[66] *fn6 Courts have faulted such parties for failing to make due inquiry about adverse judgments or orders. See, e.g., O.P.M. Leasing Services Inc., 769 F.2d 911 (2d Cir. 1985) (party who was not served with notice under Civil Rule 77(d) faulted for not looking for notice of order in legal periodical).