Cheryl McCants v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11308
Non-Argument Calendar
____________________
CHERYL MCCANTS,
on behalf of the Estate of Pettis Nix in her
capacity as Personal Representative/Executor
of the Estate of Pettis Nix,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
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2 Opinion of the Court 23-11308
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:21-cv-01327-LCB
____________________
Before R OSENBAUM , J ILL PRYOR , and L UCK , Circuit Judges.
PER CURIAM:
Cheryl McCants, proceeding pro se, appeals from the district
court’s April 4, 2022 order dismissing her civil complaint as an im-
permissible pro se filing and March 2, 2023 order denying her Fed-
eral Rule of Appellate Procedure 4(a)(6) motion to reopen the time
to file an appeal. On May 30, 2023, to aid our review, we directed
the parties to submit letter briefs addressing McCants’s challenge
to the district court’s order denying her Rule 4(a)(6) motion. Upon
review of the record and the parties’ letter briefs, we conclude that
the district court abused its discretion by denying McCants’s Rule
4(a)(6) motion.
I.
We review the denial of a motion to reopen under Rule
4(a)(6) for abuse of discretion. McDaniel v. Moore, 292 F.3d 1304,
1305 (11th Cir. 2002). As a result, we will not reverse a decision of
the district court unless we determine that, at a minimum, that
court made a clear error in judgment or applied an incorrect legal
standard. Weatherly v. Ala. State Univ., 728 F.3d 1263, 1270 (11th
Cir. 2013). “A court, by definition, abuses its discretion when it
bases a decision on an erroneous legal premise,” United States v.
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23-11308 Opinion of the Court 3
Hill, 643 F.3d 807, 874 (11th Cir. 2011), or “on an erroneous inter-
pretation of applicable law,” Jackson v. Crosby, 437 F.3d 1290, 1295
(11th Cir. 2006).
The timely filing of a notice of appeal in a civil case is a juris-
dictional requirement, and we cannot entertain an appeal that is
out of time. Hamer v. Neighborhood Hous. Servs. Of Chi., 138 S.
Ct. 13, 21 (2017); Green v. Drug Enf’t Admin., 606 F.3d 1296,
1300 (11th Cir. 2010). A notice of appeal in a civil case must be filed
within 60 days after the judgment or order appealed from is en-
tered if one of the parties to the action is the United States, as here.
28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B).
“Every judgment and amended judgment must be set out in
a separate document,” except orders disposing of certain motions.
Fed. R. Civ. P. 58(a). A judgment “includes a decree and any order
from which an appeal lies.” Id. R. 54(a). When a separate docu-
ment is required by Rule 58(a), a judgment or order is deemed en-
tered under Federal Rule of Procedure 4(a) when the judgment is
set forth on a separate document or 150 days have passed from en-
try of the judgment on the civil docket, whichever is earlier.
Fed. R. App. P. 4(a)(7)(A).
A party may move the district court to reopen the time pe-
riod to appeal. Id. R. 4(a)(6); 28 U.S.C. § 2107(c). Under Rule
4(a)(6), a district court may reopen the time to appeal for a period
of 14 days if: (1) the court finds that the moving party did not re-
ceive notice under Federal Rule of Civil Procedure 77(d) of the en-
try of the judgment or order to be appealed within 21 days after
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4 Opinion of the Court 23-11308
entry; (2) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party receives
notice under Rule 77(d) of the entry, whichever is earlier; and
(3) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6); 28 U.S.C. § 2107(c).
Rule 77(d) requires the clerk to serve notice, as provided in
Federal Rule of Civil Procedure 5(b), on each party not in default,
immediately after entering an order or judgment.
Fed. R. Civ. P. 77(d)(1). The clerk is also required to record the ser-
vice on the docket. Id. Rule 5(b) provides that an unrepresented
party may be served by mailing a paper to the party’s last known
address “in which event service is complete upon mailing . . . .” Id.
R. 5(b)(2)(C).
Rule 4 was amended in 1991 to provide for the current pro-
cess under Rule 4(a)(6) that allows the district court to reopen the
appeal period if certain conditions are met. Fed. R. App. P. 4(a)(6)
(1991). The Advisory Committee Notes to the 1991 amendments
to Rule 4 state that:
The amendment provides a limited opportunity for
relief in circumstances where the notice of entry of a
judgment or order, required to be mailed by the clerk
of the district court pursuant to Rule 77(d) of the Fed-
eral Rules of Civil Procedure, is either not received by
a party or is received so late as to impair the oppor-
tunity to file a timely notice of appeal.
Fed. R. App. P. 4 adv. comm. notes (1991).
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23-11308 Opinion of the Court 5
Rule 4(a)(6) was amended again in 1998 to require, as a con-
dition to reopening the appeal period, the district court to find that
the movant did not receive notice “‘from the district court or any
party within 21 days after entry.’” Id. (1998). Rule 4(a)(6) was then
amended again in 2005 “to specify more clearly what type of ‘no-
tice’ of the entry of a judgment or order precludes a party from
later moving to reopen the time to appeal.” Id. (2005). The 2005
Advisory Committee noted that a circuit split had emerged regard-
ing what type of notice was sufficient to trigger the beginning of
the period to move to reopen the time to appeal, and, thus, the
2005 amendment reintroduced the reference to Rule 77(d) to clar-
ify that the type of notice required under Rule 4 was notice con-
sistent with Rule 77(d). Id.
We have recognized that Rule 4(a)(6) provides the exclusive
method for extending a party’s time to appeal “for failure to receive
actual notice that a judgment or order has been entered.” Vencor
Hosps., Inc. v. Standard Life & Accident Ins. Co., 279 F.3d 1306, 1311
(11th Cir. 2002) (emphasis added).
II.
Here, McCants’s March 31, 2023 notice of appeal is untimely
to challenge the district court’s April 4, 2022 dismissal order. Be-
cause the district court did not enter judgment on a document sep-
arate from its April 4 order, which was an appealable order, the
statutory time limit required McCants to file a notice of appeal on
or before October 31, 2022, which was 60 days after the date that
judgment was deemed entered. See Fed. R. Civ. P. 58(a);
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6 Opinion of the Court 23-11308
Fed. R. App. P. 4(a)(1)(B), (7)(A); see also Justice v. United States, 6
F.3d 1474, 1481 (11th Cir. 1993) (“A plaintiff may appeal from an
involuntary dismissal without prejudice.”). McCants did not file
her notice of appeal until March 31, 2023.
McCants’s March 31, 2023 notice of appeal was timely to ap-
peal from the district court’s March 2, 2023 denial of her Rule
4(a)(6) motion because it was filed within 60 days of that order. See
Fed. R. App. P. 4(a)(1)(B). Thus, we lack jurisdiction over the April
4, 2022 dismissal order, unless we determine that the district court
abused its discretion in denying McCants’s Rule 4(a)(6) motion and
the district court concludes that McCants is entitled to relief under
Rule 4(a)(6) following remand.
We conclude that the district court abused its discretion
when it denied McCants’s Rule 4(a)(6) motion because it based that
denial on an erroneous interpretation of Rule 4(a)(6). The district
court concluded that Rule 4(a)(6) required the court clerk to pro-
vide notice of the entry of the district court’s April 4 dismissal order
within 21 days and that, when the clerk did so, Rule 4(a)(6) relief
was foreclosed. However, Rule 4(a)(6) specifies that the district
court may reopen the time to appeal if the court finds that a party
did not receive notice of the entry of an order or judgment within
21 days of its entry. See Fed. R. App. P. 4(a)(6); 28 U.S.C. § 2107(c).
Thus, the proper inquiry under the first prong of Rule 4(a)(6) is
whether McCants received notice of the April 4 dismissal order by
September 22, 2022, which was 21 days after the April 4 order was
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23-11308 Opinion of the Court 7
deemed entered on September 1, 2022. See Fed. R. App. P.
4(a)(1)(B), (6), (7)(A); 28 U.S.C. § 2107(c); Fed. R. Civ. P. 58(a).
The text of Rule 4(a)(6) and the Advisory Committee notes
reflect that the Rule is concerned with whether a party actually re-
ceives notice of a district court’s order or judgment, not when a
party is served with notice. See Fed. R. App. P. 4(a)(6) (stating that
a party may move the district court to reopen the appeal period if,
inter alia, the court finds that the moving party did not “receive”
notice under Rule 77(d) of the entry of judgment or order to be
appealed within 21 days after entry). The 2005 Advisory Commit-
tee Notes state that the reference to Rule 77(d) was added to Rule
4(a)(6) to clarify that notice must be consistent with Rule 77(d) to
qualify as notice for Rule 4(a)(6) purposes, i.e., the analysis of
whether the appellant timely received notice applies only to notice
made in accordance with Rule 77(d). See Fed. R. App. P. 4 adv.
comm. notes (2005). That change to Rule 4(a)(6) did not, however,
remove the requirement that the court determine whether the
moving party received notice. See id.
The district court based its decision solely on the civil rules
regarding service of the notice of its dismissal order and not Rule
4(a)(6)’s clear focus on receipt of that notice. It thus did not make
any findings regarding when, if ever, McCants received notice of
the dismissal order. By relying on that erroneous interpretation of
Rule 4(a)(6) and not considering receipt, the court abused its dis-
cretion.
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8 Opinion of the Court 23-11308
Accordingly, we VACATE the district court’s March 2, 2023
order denying McCants’s Rule 4(a)(6) motion and REMAND the
case for further proceedings consistent with this opinion.
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