Brief — Donte Parrish, Petitioner v. United States

Supreme Court briefMar 28, 2025

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No. 24-275

In the Supreme Court of the United States

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DONTE PARRISH,

Petitioner,

UNITED STATES,

Respondent

___________________

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

___________________

BRIEF OF COURT-APPOINTED AMICUS CURIAE

IN SUPPORT OF THE J UDGMENT BELOW

___________________

Jacob J. Taber

PERKINS COIE LLP

1155 Avenue of the

Americas

22nd Floor

New York, NY 10036-2711

Michael R. Huston

Counsel of Record

Karl J. Worsham

Addison W. Bennett

Jordan M. Buckwald

Victoria L. Romine

PERKINS COIE LLP

2525 E. Camelback Road

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

QUESTION PRESENTED

When a party wishing to appeal a final judgment fails

to file a notice of appeal by the statutory deadline, a district court may grant a motion to “reopen the time for

appeal for a period of 14 days from the date of entry of the

order reopening the time for appeal.” 28 U.S.C. § 2107(c).

The question presented is whether, during that reopened

period, the would-be appellant must file a timely notice of

appeal.

TABLE OF CONTENTS

Introduction ......................................................................... 2

Statement ............................................................................. 3

A. Legal framework ..................................................... 3

B. The present controversy ........................................ 7

Summary of Argument ....................................................... 9

Argument ........................................................................... 12

A. The court of appeals correctly determined that

it lacked jurisdiction.............................................. 13

1. Section 2107(c) requires a notice of appeal

to be filed after reopening. ............................. 13

2. Rule 4(a)(6) reinforces that a timely notice

of appeal is required........................................ 16

3. Section 2107(c) and Rule 4(a)(6) do not

allow “ripening,” unlike other provisions

that do. .............................................................. 18

4. Requiring a timely notice of appeal

after reopening is granted is consistent

with precedent and respects Congress’s

choices............................................................... 21

B. Petitioner’s arguments are unavailing. ............... 24

1. Petitioner advances an extra-broad

“ripening” principle that lacks historical

support.............................................................. 24

2. Petitioner’s vision of ripening cannot be

reconciled with the text or structure of

Section 2107. .................................................... 28

iii

3. Petitioner draws the wrong inferences

about Congress’s intent for reopened

appeal periods. ................................................. 30

4. Petitioner fails to account for the textual

difference between “extension” and

“reopening.” ..................................................... 34

5. Jurisdictional rules should be applied

uniformly to all litigants. ................................ 38

C. At minimum, the court of appeals was not

compelled to exercise discretion in petitioner’s

favor. ....................................................................... 42

Conclusion .......................................................................... 46

Statutory and Rule Provisions Appendix

28 U.S.C. § 2107 ................................................................. 1a

Federal Rule of Appellate Procedure 4 .......................... 3a

TABLE OF AUTHORITIES

Pages

CASES

Aetna Ins. Co. v. Boon,

95 U.S. 117 (1877) ......................................................... 22

Alaska Limestone Corp. v. Hodel,

799 F.2d 1409 (9th Cir. 1986) ...................................... 23

Artis v. District of Columbia,

583 U.S. 71 (2018) ......................................................... 15

Averhart v. Arrendondo,

773 F.2d 919 (7th Cir. 1985) .................................. 39, 41

Becker v. Montgomery,

532 U.S. 757 (2001) ............................... 13, 16, 27, 33, 41

Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs,

162 F.3d 653 (11th Cir. 1998) ...................................... 28

Bouarfa v. Mayorkas,

604 U.S. 6 (2024) ........................................................... 43

Bowles v. Russell,

551 U.S. 205 (2007)

................................... 2, 3, 13, 15-16, 23, 31, 35-36, 38-39

Brown v. Columbia Sussex Corp.,

664 F.3d 182 (7th Cir. 2011) ........................................ 19

City of San Antonio v. Hotels.com, L. P.,

593 U.S. 330 (2021) ....................................................... 17

Clausen v. Sea-3, Inc.,

21 F.3d 1181 (1st Cir. 1994) ......................................... 19

Corley v. United States,

556 U.S. 303 (2009) ....................................................... 15

Dickerson v. United States,

530 U.S. 428 (2000) ....................................................... 41

Duma v. C.I.R.,

534 F. App’x 4 (D.C. Cir. 2013) ................................... 44

Eason v. Dickson,

390 F.2d 585 (9th Cir. 1968) ............................ 25, 26, 44

Erickson v. Pardus,

551 U.S. 89 (2007) ......................................................... 41

Evans v. Jones,

366 F.2d 772 (4th Cir. 1966) .......................................... 8

Firchau v. Diamond Nat’l Corp.,

345 F.2d 269 (9th Cir. 1965) ........................................ 18

FirsTier Mortg. Co. v. Investors Mortg. Ins. Co.,

498 U.S. 269 (1991) ............... 10, 18-19, 24, 26, 30-31, 38

Gonzalez v. Thaler,

565 U.S. 134 (2012) ....................................................... 39

Gray v. Brignardello,

68 U.S. 627 (1863) ......................................................... 22

Griggs v. Provident Consumer Discount Co.,

459 U.S. 56 (1982) ....................3, 9, 13, 20, 23, 27, 32, 43

Hamer v. Neighborhood Hous. Servs. of Chicago,

583 U.S. 17 (2017) ................................................... 16, 36

Harnish v. Manatee County,

783 F.2d 1535 (11th Cir. 1986) ...................................... 5

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ....................................................... 16

Hensley v. Chesapeake & Ohio Ry. Co.,

651 F.2d 226 (4th Cir. 1981) ........................................ 23

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) ......................................................... 30

Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc.,

572 U.S. 559 (2014) ....................................................... 44

HollyFrontier Cheyenne Refining, LLC v.

Renewable Fuels Association,

594 U.S. 382 (2021) ........................................... 35, 36, 37

Houston v. Lack,

487 U.S. 266 (1988) ....................................................... 42

In re Bryson,

406 F.3d 284 (4th Cir. 2005) ........................................ 19

Interstate Commerce Comm’n v.

Brotherhood of Locomotive Eng’rs,

482 U.S. 270 (1987) ....................................................... 14

Jetco Elec. Indus. v. Gardiner,

473 F.2d 1228 (5th Cir. 1973) ...................................... 25

King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991) ....................................................... 28

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013) ....................................................... 18

Lemke v. United States,

346 U.S. 325 (1953) ....................................................... 25

Lewis v. B.F. Goodrich Co.,

850 F.2d 641 (10th Cir. 1988) ...................................... 19

Manrique v. United States,

581 U.S. 116 (2017) ....................................... 4, 25, 28, 32

Marcangelo v. Boardwalk Regency,

47 F.3d 88 (3d Cir. 1995) .......................................... 5, 23

Markham v. Holt,

369 F.2d 940 (5th Cir. 1966) ........................................ 25

vii

Marshall v. Comm’r Pa. Dep’t of Corrs.,

840 F.3d 92 (3d Cir. 2016) ............................................ 28

McNeil v. United States,

508 U.S. 106 (1993) ................................................. 39, 40

Merchants & Planters Bank of Newport, Ark. v. Smith,

516 F.2d 355 (8th Cir. 1975) .................................. 25, 43

Miller v. French,

530 U.S. 327 (2000) ....................................................... 14

Milner v. Department of the Navy,

562 U.S. 562 (2011) ....................................................... 12

Missouri v. Jenkins,

495 U.S. 33 (1990) ......................................................... 22

Mitchell v. Overman,

103 U.S. 62 (1880) ......................................................... 22

Mohasco Corp. v. Silver,

447 U.S. 807 (1980) ....................................................... 21

Monasky v. Taglieri,

589 U.S. 68 (2020) ......................................................... 45

Morris v. Uhl & Lopez Eng’rs, Inc.,

442 F.2d 1247 (10th Cir. 1971) .............................. 25, 44

National Ass’n of Mfrs. v. Department of Defense,

583 U.S. 109 (2018) ....................................................... 14

Outlaw v. Airtech Air Conditioning & Heating, Inc.,

412 F.3d 156 (D.C. Cir. 2005) .............. 19, 20, 27, 35, 38

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ....................................................... 14

Pulsifer v. United States,

601 U.S. 124 (2024) ....................................................... 20

viii

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639 (2012) ....................................................... 19

Richerson v. Jones,

551 F.2d 918 (3d Cir. 1977) .................................... 25, 44

Roman Catholic Archdiocese of San Juan,

Puerto Rico v. Acevedo Feliciano,

589 U.S. 57 (2020) ................................................... 22, 23

Sacks v. Reynolds Secs., Inc.,

593 F.2d 1234 (D.C. Cir. 1978) .................................... 43

Sheppard v. Wilson,

47 U.S. 260 (1848) ......................................................... 22

Smith v. Barry,

502 U.S. 244 (1992) ................................................. 27, 43

Thompson v. I.N.S.,

375 U.S. 384 (1964) ....................................................... 42

Tilden Fin. Corp. v. Palo Tire Serv.,

596 F.2d 604 (3rd Cir. 1979) ........................................ 25

Torres v. Oakland Scavenger Co.,

487 U.S. 312 (1988) ................................................. 33, 39

United States ex rel. Eisenstein v. City of New York,

556 U.S. 928 (2009) ....................................................... 14

United States v. Boyle,

469 U.S. 241 (1985) ....................................................... 21

United States v. Curry,

47 U.S. 106 (1848) ................................................... 21, 39

United States v. Locke,

471 U.S. 84 (1985) ......................................................... 21

United States v. Valdosta-Lowndes Cnty.

Hosp. Auth.,

668 F.2d 1177 (11th Cir. 1982) .................................... 25

Wall Guy, Inc. v. F.D.I.C.,

95 F.4th 862 (4th Cir. 2024) ......................................... 28

Zuni Pub. Sch. Dist. No. 89 v. Department of Educ.,

550 U.S. 81 (2007) ......................................................... 17

STATUTES

8 U.S.C. § 1229a(5)(C) ........................................................ 37

11 U.S.C. § 350 .................................................................... 37

11 U.S.C. § 1121(e) ............................................................. 15

26 U.S.C. § 7481(c)(1) ......................................................... 37

28 U.S.C. § 1367 .................................................................. 15

28 U.S.C. § 2107 .................... 3, 5, 6, 13, 15-17, 24, 27-28, 37

28 U.S.C. § 2107(a) .................................. 3, 14, 28-30, 35, 38

28 U.S.C. § 2107(b) ............................................................... 3

28 U.S.C. § 2107(c) ..................... 2-7, 9-10, 12-13, 15-18, 21,

23-24, 28-32, 34-40, 42-44

28 U.S.C. § 2263(b)(3) ........................................................ 15

42 U.S.C. § 7545(o)(9)(B)(i) ............................................... 36

Pub. L. No. 102-198, sec. 12, § 2107, 105

Stat. 1623 (1991) ............................................................. 6

RULES

Fed. R. App P. 3 .............................. 13, 16, 27-28, 32, 39, 41

Fed. R. App. P. 3(c) ...................................................... 28, 43

Fed. R. App. P. 3(e) ............................................................ 33

Fed. R. App. P. 4 ................................. 5-7, 10, 13, 16-17, 23,

27-28, 32, 39-41, 43

Fed. R. App. P. 4(a) .................................................... 5, 6, 18

Fed. R. App. P. 4(a)(1) ........................................... 18, 26, 27

Fed. R. App. P. 4(a)(2) ..........18-20, 24-27, 29, 31-33, 35, 38

Fed. R. App. P. 4(a)(4) ................18-20, 27, 31-32, 35, 38-40

Fed. R. App. P. 4(a)(5) .................................... 4, 8, 34-36, 38

Fed. R. App. P. 4(a)(6) .............2-8, 10, 12, 16-18, 20, 23-24,

29, 31-32, 34-35, 38-40, 43, 45

Fed. R. App. P. 4(b)(2) ................................................. 25, 28

Fed. R. App. P. 4(c) ............................................................ 41

Fed. R. App. P. 10(b) ......................................................... 33

Fed. R. App. P. 26(b)(1) ..................................................... 13

Fed. R. Civ. P. 54(b) ..................................................... 19, 25

Fed. R. Civ. P. 77.................................................................. 5

OTHER AUTHORITIES

Black’s Law Dictionary

(11th ed. 2019) ............................................................... 22

16A Charles Alan Wright & Arthur Miller,

FEDERAL PRACTICE AND PROCEDURE

(5th ed. 2019) ............................................................. 6, 28

Federal Judicial Caseload Statistics 2024,

Administrative Office of the United States

Courts, https://www.uscourts.gov/ datanews/reports/statistical-reports/federal-judicialcaseload- statistics/federal-judicial-caseloadstatistics-2024 (last visited Mar. 26, 2025) ................. 34

H.R. Doc. No. 102-79 (May 1, 1991) ............................... 5, 6

H.R. Rep. 102-322 (1991), reprinted in 1991

U.S.C.C.A.N. 1303 ........................................................ 17

Merrit McAlister, Aldaberto Jordan, and

Kimberly J. Mueller,

What Can Be Done About Backlogs?,

JUDICATURE, Vol. 107, No. 2 (2023) ........................... 34

The Oxford English Dictionary

(2d ed. 1989) ...................................................... 14, 15, 26

Webster’s Third New International Dictionary of

The English Language (1986) ..................................... 14

In the Supreme Court of the United States

_______________

No. 24-275

DONTE PARRISH,

Petitioner,

UNITED STATES,

Respondent

___________________

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

___________________

BRIEF OF COURT-APPOINTED AMICUS CURIAE

IN SUPPORT OF THE J UDGMENT BELOW

____________

INTEREST OF AMICUS CURIAE

By order dated January 28, 2025, this Court invited

Michael R. Huston to brief and argue this case as amicus

curiae in support of the judgment below.

STATUTORY AND RULE PROVISIONS INVOLVED

The pertinent statutory and rule provisions are

reprinted in the appendix to this brief. App.1a-10a, infra.

INTRODUCTION

Appellate jurisdiction in a court of appeals depends on

a timely filed notice of appeal. Petitioner never filed a

timely notice of appeal. The “notice of appeal” that he did

file was both out-of-time and procedurally defective. And

when the district court then gave petitioner a reopened

window “to file his appeal,” he did not file anything. The

court of appeals thus correctly dismissed petitioner’s

appeal for lack of jurisdiction.

That judgment should be affirmed. Although petitioner does not attempt to argue that he ever filed a notice

of appeal during a timely window, he asks for the same

benefits as if he had. Petitioner bases that argument not

on the text of the controlling statute (28 U.S.C. § 2107(c))

or Federal Rule of Appellate Procedure (Rule 4(a)(6)), but

instead on his proposal for this Court to adopt an implicit

“ripening principle” grounded on functional considerations. That argument has multiple fatal flaws. For one,

petitioner vastly overstates the ripening principle, which

both Congress and this Court have confined to situations

fundamentally unlike this one: premature notices filed

before entry of judgment. Even more important, this

Court has squarely held that it has “no authority to create

equitable exceptions to jurisdictional requirements.”

Bowles v. Russell, 551 U.S. 205, 214 (2007). The Court

should not depart from that settled holding now to excuse

petitioner’s unexplained failure to comply with straightforward jurisdictional rules even after the district court

gave him a second chance.

Enforcing Section 2107(c) and Rule 4(a)(6) according

to their terms can produce harsh results in some cases.

But as Bowles and other cases show, that is the inevitable

consequence of Congress’s choice to adopt jurisdictional

rules. And the important benefits of clear jurisdictional

rules should not be overlooked: They support the finality

of judgments, and they create certainty and predictability

for all litigants. It may seem unfair to a party who filed 10

minutes past the deadline that he is treated the same as

one who filed 10 days late, but Congress accepted that

tradeoff in exchange for clear and consistent jurisdictional

instructions. Any further changes to those rules can come

only from Congress or the rules committee.

No statute or rule permits treating petitioner’s tardy

notice of appeal—a legal nullity when filed—as if it were

filed during the specifically defined window that the district court reopened. But even if the text could be

stretched to permit ripening of a tardy notice of appeal in

certain cases, it certainly does not compel ripening. Petitioner has not shown that the court of appeals abused its

discretion by simply insisting on compliance with Section

2107(c) and Rule 4(a)(6) according to their letter. The

judgment below can be affirmed on that basis as well.

STATEMENT

A. Legal framework

1. Section 2107 prescribes the time limits for filing

appeals in civil actions. 28 U.S.C. § 2107. Parties must file

a notice of appeal “within thirty days” after entry of the

“judgment, order or decree” being appealed, id. § 2107(a),

or 60 days if the United States is a party, id. § 2107(b).

Congress has chosen to make those deadlines “mandatory

and jurisdictional.” Bowles, 551 U.S. at 209 (quoting

Griggs v. Provident Consumer Discount Co., 459 U.S. 56,

61 (1982) (per curiam)). A party’s failure to scrupulously

adhere to the statutory requirements for filing a timely

notice of appeal can thus have harsh consequences. See,

e.g., id. at 214 (no jurisdiction where notice of appeal was

filed too late even if result is “thought to be inequitable”

because appellant received faulty instructions from the

court); Manrique v. United States, 581 U.S. 116, 120-121

(2017) (too-early notice of appeal challenging decision the

court had not yet made “failed to properly appeal under

the statute”).

Congress has established two exceptions to the default

appeal deadlines. The first allows the district court to “extend the time for appeal upon a showing of excusable

neglect or good cause” if a motion is brought “not later

than 30 days after the expiration of the time otherwise set

for bringing appeal.” 28 U.S.C. § 2107(c). Federal Rule of

Appellate Procedure 4(a)(5) implements that exception

and provides that no extension “may exceed 30 days after

the prescribed time or 14 days after the date when the

order granting the motion is entered, whichever is later.”

The second exception—at issue here—applies if a

would-be appellant does not receive notice of the order or

judgment with sufficient time to timely notice an appeal.

It provides that the district court may “reopen the time

for appeal” only if a party did not receive notice of the

judgment “within 21 days of its entry,” and “no party

would be prejudiced” by an appeal. 28 U.S.C. § 2107(c).

The district court may reopen the appeal period only

“upon motion filed within 180 days after entry of the judgment” or “within 14 days after” the party receives notice

of the judgment, “whichever is earlier.” Ibid. If the district court grants that motion, it “reopen[s] the time for

appeal for a” specifically described “period”: “14 days

from the date of entry of the order reopening the time for

appeal.” Ibid.

Rule 4(a)(6) implements that exception and provides

that a 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.” Fed. R. App. P. 4(a)(6).

2. Section 2107(c)’s reopening provision did not exist

as a separate exception until 1991. Before that, a district

court could “extend the time for appeal not exceeding

thirty days from the expiration of the original time herein

prescribed, upon a showing of excusible neglect based on

failure of a party to learn of the entry of the judgment,

order or decree.” 28 U.S.C. § 2107 (1948). When the Federal Rules of Appellate Procedure were adopted in 1967,

they authorized an extension “[u]pon a showing of excusable neglect” without referencing a failure to receive

notice of the judgment. Fed. R. App. P. 4(a) (1967).

In 1991, this Court amended Rule 4 to create a new

exception to the appeal deadlines for a party that did not

receive timely notice of the judgment but subsequently

learned of it within 180 days. See H.R. Doc. No. 102-79, at

2, 18-20 (May 1, 1991). Previously, courts had sometimes

sought to evade harsh results from the 30-day appeal

deadline by vacating and reentering judgments in order

to re-start the appellate clock. See, e.g., Harnish v. Manatee County, 783 F.2d 1535, 1538 (11th Cir. 1986).

The new Rule 4(a)(6) sought to “mitigate [the] harsh

result” of a party being “unfairly deprived of an appeal

because of the failure of a court clerk,” but the Rule

reflected a “careful balancing of interests” because “it was

designed not to unduly affect the time when judgments

became final.” Marcangelo v. Boardwalk Regency, 47

F.3d 88, 90 (3d Cir. 1995). This balance was achieved by

requiring that a motion to reopen be filed “within 7 days

of receipt of such notice” and by permitting the prevailing

party to start the appellate clock by serving notice of the

judgment. H.R. Doc. No. 102-79, at 18; see Fed. R. Civ. P.

77, advisory committee’s note (1991 Amendment). The

Committee Note stated that “[i]f the motion is granted,

the district court may reopen the time for filing a notice of

appeal only for a period of 14 days from the date of entry

of the order reopening the time for appeal.” Fed. R. App.

P. 4, advisory committee’s note (1991 Amendment).

The Advisory Committee also recommended that Congress amend 28 U.S.C. § 2107 “in light of this proposed

rule.” H.R. Doc. No. 102-79, at 13, 20. Congress agreed.

Eight days after the new rules became effective, Congress

amended Section 2107(c) to ratify new Rule 4(a)(6). See

Pub. L. No. 102-198, sec. 12, § 2107, 105 Stat. 1623 (1991)

(“Conformity with Rules of Appellate Procedure”); 16A

Charles Alan Wright & Arthur Miller, FEDERAL

PRACTICE AND PROCEDURE § 3950.6 (5th ed. 2019).

In 1998, the Rules Committee clarified the language—

but not the substance—of Rule 4(a)(6) to make clear that

the grant of reopening created a new time “to file” an

appeal. Adding the words “to file” in the Rule’s phrase

“reopen the time to file an appeal for a period of 14 days”

was part of a years-long project to “rewrite all of the Federal Rules of Appellate Procedure … in ‘plain English.’”

Fed. R. App. P. 4, advisory committee’s report 1 (Nov.

1997 Amendment) (emphasis added). The relevant

amendments were “stylistic only” and did not alter the

substantive requirement—long recognized by the Advisory Committee—that Rule 4 and Section 2107(c)

required a filing. See Fed. R. App. 4, advisory committee’s

minutes 15-16 (1989 Amendment) (suggesting adding “a

new subparagraph (6) to Appellate Rule 4(a)” that “would

provide a new period of 14 days in which to file a notice of

appeal”) (emphasis added); Fed. R. App. 4, advisory committee’s note (1991 Amendment) (allowing reopening of

“the time for filing a notice of appeal”). 1 The Advisory

Committee did not recommend that Section 2107(c) be

amended. Fed. R. App. 4, advisory committee’s note (1998

Amendment).

B. The present controversy

1. Petitioner Donte Parrish was serving a 180-month

sentence in federal prison when he was accused of murdering another inmate. C.A. Doc. 25 at 152. Prison officials

placed him in administrative segregation, but federal

prosecutors did not pursue charges. Id. at 63, 82. In 2017,

petitioner filed a pro se complaint challenging his segregation under the Federal Tort Claims Act. Id. at 30. The

district court granted the government’s motion to dismiss

on March 23, 2020, Pet.App.55a, and entered judgment

the next day, C.A. Doc. 25 at 329.

Petitioner did not file a notice of appeal before the

60-day deadline passed on May 26, 2020. Nor did he file

before the deadline to extend the appeal period passed 30

days later. Instead, two weeks after the extension period

expired, petitioner mailed a document titled “Notice of

Appeal” to the district court. Pet.App.71a. He stated that

he had not received timely notice of the judgment because

he had been transferred from federal to state custody.

Ibid. Petitioner did not ask for reopening, and he did not

cite Rule 4(a)(6). Ibid.

2. Petitioner’s notice of appeal was clearly untimely,

so the court of appeals lacked jurisdiction unless the district court granted reopening under Rule 4(a)(6). The

court of appeals exercised its discretion to construe peti-

Rule 4(a)(6) was also substantively amended at the same time

to provide that notice from the district court (not just notice from the

clerk) would bar reopening.

tioner’s untimely “notice of appeal” as a motion to reopen

and remanded to the district court. Pet.App.56a-58a.

The district court granted reopening on January 8,

2021, and “REOPEN[ED] the time for [petitioner] to file

his appeal for fourteen (14) days.” Pet.App.61a-62a. The

court ordered the Clerk “to transmit this Order to the pro

se plaintiff, certified mail, return receipt requested.” Ibid.

Petitioner has never claimed that he did not receive

notice of the district court’s reopening order within 14

days. But petitioner did not file a notice of appeal—or

anything else—during the 14-day period following that

order.

3. Petitioner’s appeal languished on the court of

appeals’ docket for nine months without action. C.A. Doc.

13-16. The court eventually appointed counsel for petitioner. C.A. Doc. 16. Although the government conceded

appellate jurisdiction, C.A. Doc. 39 at 11, the court dismissed the appeal for lack of jurisdiction, Pet.App.1a-13a.

The majority explained that petitioner had not complied

with the unambiguous requirement of Rule 4(a)(6) and the

district court’s reopening order: he did not file anything

within the 14-day period that had been “reopened” for

him “to file an appeal.” Fed. R. App. P. 4(a)(6); see

Pet.App.10a.

Petitioner had based his argument for appellate jurisdiction on Fourth Circuit precedent holding that, under

Rule 4(a)(5), an “extension” of the time to appeal enlarges

one continuous appeal period that may permit the “ripening” of a premature notice of appeal into a timely notice.

See Pet.App.6a (referencing Evans v. Jones, 366 F.2d 772

(4th Cir. 1966) (per curiam)). But the court of appeals

explained that, even accepting that precedent, the text of

Rule 4(a)(6) is different: a “reopening” under Rule 4(a)(6)

creates a distinct 14-day period during which a notice of

appeal must be filed. Pet.App.9a-11a. Petitioner’s earlier

notice of appeal was not filed during that period and was

therefore ineffective.

The court of appeals also rejected petitioner’s contention that his untimely filing could function as both a notice

of appeal and a motion to reopen. Pet.App.3a-4a.

Judge Gregory dissented. Pet.App.14a-22a. He

argued that circuit precedent regarding extensions

should control because there is no significant difference

between “extend” and “reopen.” Id. at 19a.

The court of appeals denied rehearing. Pet.App.63a70a. Judge Niemeyer’s statement in support explained

that Section 2107(c) requires a notice of appeal to be filed

during the 14-day reopened period. Id. at 65a-66a. Judge

Niemeyer observed that, whatever harsh results that

requirement may sometimes create, the court of appeals

lacked the power to fashion an equitable exception to the

jurisdictional limits set by Congress. Ibid. Judge Gregory

dissented. Pet.App.67a-69a.

SUMMARY OF ARGUMENT

A. Only a timely notice of appeal “confers jurisdiction

on the court of appeals.” Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 58 (1982) (per curiam). Petitioner’s notice of appeal was not timely; it was indisputably filed late. Thus, his only path to an appeal was through

reopening under 28 U.S.C. § 2107(c). But the statutory

text requires a would-be appellant to act during the

“period of 14 days from the date of the entry of the order”

granting reopening. 28 U.S.C. § 2107(c). Congress’s creation of a defined 14-day period plainly requires action during that period—specifically, filing a notice of appeal.

The Rules of Appellate Procedure confirm this conclusion by providing for the ripening of premature notices of

appeal in certain situations, but not others. In this situation, the notice of appeal was not “premature” but tardy:

it was filed after petitioner’s deadline to appeal had

expired, and before the district court later reopened his

“time for appeal.” Requiring action during that “period of

14 days” is consistent with precedent recognizing that the

ripening principle extends no further than the text of Congress’s enacted rules. FirsTier Mortg. Co. v. Investors

Mortg. Ins. Co., 498 U.S. 269, 273 (1991).

In enacting Section 2107(c) and adopting Rule 4(a)(6),

Congress made a choice that would-be appellants must act

during their reopened, 14-day “time for appeal.” Respecting that policy choice advances much-needed clarity in the

interpretation of jurisdictional statutes, while leaving it to

Congress to adjust those rules if it so chooses.

B. Petitioner’s contrary arguments fail because he

vastly overstates the supposed “background ripening

principle” and relies on extra-textual policy arguments.

To prevail, petitioner must be correct that “ripening is

always warranted upon reopening.” Pet.Br.33.

That was never the law. Before the enactment of Rule

4 and Section 2107(c)’s reopening provisions, judges

sometimes allowed a premature notice of appeal to

“ripen,” but not in the circumstances of this case. Moreover, in codifying that common-law practice, Congress

placed limits on ripening that petitioner now asks this

Court to ignore. Petitioner has no answer to the text or

structure of Section 2107(c) or the appellate rules, which

cannot be read to embrace his policy-based notion that

any notice of appeal must be effective if it provides adequate notice of intent to appeal. It is not sufficient that a

would-be appellant’s filing gives notice; Congress’s chosen jurisdictional procedures must also be followed.

Petitioner also asks this Court to take two statutory

provisions—involving “extension” and “reopening”—and

give them the same meaning. That contradicts this

Court’s interpretive presumption against Congress using

different words to describe the same jurisdictional

requirements.

Petitioner falls back on policy arguments and asks this

Court to create exceptions for sympathetic litigants. But

this Court has long observed that proper application of

jurisdictional rules can have harsh consequences. Congress is entitled to draw jurisdictional lines, and the judiciary must enforce them according to their terms.

C. In the alternative, even if the statute and rule could

be read to permit ripening in a circumstance like this one,

the text certainly does not compel a court of appeals in all

circumstances to treat a time-barred notice of appeal like

petitioner’s as if it were timely filed. Courts retain discretion to insist on compliance with the statute and rule

according to their terms. Petitioner has not shown that

the court of appeals abused its discretion by declining to

extend him further grace after his admitted (and unexplained) failure to file anything during the window that

the district court reopened for him.

ARGUMENT

Section 2107(c) and Rule 4(a)(6) offer a straightforward second-chance procedure to would-be appellants

who missed their time to appeal an adverse judgment. The

disappointed party may file a motion that, if granted,

“reopen[s]” the time “to file an appeal” for a specifically

described “period of 14 days.” The ordinary meaning of

that text is obvious: by creating a defined 14-day period,

the statute and rule require action during that period.

The court of appeals correctly determined that petitioner’s appeal was defective because he took no action

during the period that was reopened for him, even though

the district court took care to ensure that petitioner

received notice of the reopening and an instruction “to file

his appeal.”

Petitioner’s argument depends on replacing clear textual instructions with an amorphous “background ripening principle” informed by functional notions of adequate

notice. Pet.Br.9. But there is no warrant for such a “textlight approach to the statute.” Milner v. Department of

the Navy, 562 U.S. 562, 573 (2011). Where the statute and

appellate rules permit ripening of earlier-filed notices of

appeal, they say so expressly. That they do not provide for

ripening here is no license to create new, atextual exceptions for arguably sympathetic litigants.

Petitioner further contends that his ripening principle

is mandatory; he says courts of appeals lack discretion to

require a notice of appeal to be filed during the reopened

14-day period. See Pet.Br.33 (“ripening is always warranted upon reopening”). But at a minimum, a court does

not abuse its discretion by requiring a party like petitioner who has already received a second chance to simply

adhere to the plain-text filing requirement.

This Court should affirm the judgment below.

A. The court of appeals correctly determined that it

lacked jurisdiction.

The time to appeal set forth in Section 2107 is “mandatory and jurisdictional.” Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 61 (1982) (per curiam). Only a

timely notice of appeal “confers jurisdiction on the court

of appeals.” Id. at 58. A party who wishes to appeal must

comply with both Section 2107 and the “linked jurisdictional provisions” of Appellate Rules 3 and 4. Becker v.

Montgomery, 532 U.S. 757, 765 (2001). These provisions

are strictly construed and may not be extended or altered

except as specifically permitted by statute. See Bowles v.

Russell, 551 U.S. 205, 213 (2007); Fed. R. App. P. 26(b)(1).

1. Section 2107(c) requires a notice of appeal to be

filed after reopening.

a. Where, as here, a would-be appellant misses both

the standard appeal period and the 30-day window to

extend it, his only option is to seek to “reopen” his “time

for appeal” under 28 U.S.C. § 2107(c). See Bowles, 551

U.S. at 208. A district court “may” (but need not) grant

reopening upon “motion” if the court “finds” that the

would-be appellant did not receive notice of the judgment

“within 21 days of its entry” and that “no party would be

prejudiced” by reopening. 28 U.S.C. § 2107(c). The motion

must be made within 180 days after the judgment or 14

days after the party receives notice of the judgment,

“whichever is earlier.” Ibid.

If the district court grants the motion, then a “period

of 14 days” begins running “from the date of entry of the

order reopening the time to appeal.” 28 U.S.C. § 2107(c).

That new “period” is the would-be appellant’s only “time

for appeal.” Ibid.

b. That statutory text admits of only one fair construction: the movant must file a notice of appeal during

the reopened “period of 14 days.” Only that reading gives

meaningful “effect to all of ” Congress’s provisions. United

States ex rel. Eisenstein v. City of New York, 556 U.S. 928,

933 (2009); see National Ass’n of Mfrs. v. Department of

Defense, 583 U.S. 109, 128-129 (2018) (“the Court is

obliged to give effect, if possible, to every word Congress

used”) (citation omitted).

First, the use of the word “reopen” presumes that the

period to appeal has already closed before the motion is

filed. This Court has routinely construed “reopen” that

way. See Miller v. French, 530 U.S. 327, 344 (2000) (discussing power of federal courts to “reopen final judgments”); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

238 (1995) (discussing courts’ power to “reopen” an “otherwise closed court judgment”) (quotation omitted);

Interstate Commerce Comm’n v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 277 (1987) (statutory power to

“reopen” refers to a “prior decision” subject to reconsideration). That usage is consistent with the ordinary meaning of “reopen,” which refers to a period that has closed

and requires specific action “to begin again.” Reopen,

Webster’s Third New International Dictionary of The

English Language 1923 (1986); Reopen, The Oxford English Dictionary 624 (2d ed. 1989) (“to open again”).

The statute’s description of the reopening window as a

“time for appeal” reinforces the conclusion. The “time for

appeal” is the only time during which an appeal can be

commenced. And taking or commencing an appeal always

requires an action—specifically, filing a notice of appeal.

Section 2107(a) limits federal appellate jurisdiction by

prohibiting any “appeal” from “bring[ing] any judgment

… before a court of appeals for review unless notice of

appeal is filed.” 28 U.S.C. § 2107(a). Here, petitioner did

nothing to bring his appeal during the “time for appeal.”

28 U.S.C. § 2107(c).

Congress’s creation of a specific “period of 14 days”

during which the time for appeal is reopened forcefully

confirms that the would-be appellant must file during that

period. A “period” in the context of a procedural statute

means a time during which a litigant must act. See, e.g.,

Artis v. District of Columbia, 583 U.S. 71, 75 (2018) (28

U.S.C. § 1367 sets a “period for refiling” in state court

after dismissal of claims); 28 U.S.C. § 2263(b)(3) (permitting extension of “period” to “file[ ]” application for writ of

habeas corpus); 11 U.S.C. § 1121(e) (in certain bankruptcies, “only the debtor may file a plan” during a “period” of

“180 days”). That the reopened appeal period runs “from”

the “date of entry” strengthens the same point, because

the word “from” is used to “indicat[e] a starting-point in

time, or the beginning of a period.” From, The Oxford

English Dictionary 211 (2d ed. 1989). Simply put: It is

implausible that Congress would have created a strictly

delimited 14-day period setting the bounds for the reopened “time for appeal” unless some action were required

during that period.

Requiring a would-be appellant to act during Congress’s 14-day reopened appeal period gives meaning to

all of Section 2107’s “provisions, so that no part will be

inoperative or superfluous, void or insignificant.” Corley

v. United States, 556 U.S. 303, 314 (2009) (cleaned up).

Any construction of Section 2107(c) that made the filing of

a notice of appeal optional during Congress’s window

would depart from that foundational interpretive rule.

c. This Court has already analyzed Section 2107(c)

and reached the same conclusion. In Bowles, the Court

described Section 2107(c)’s 14-day period as a “filing

period” and a “time for filing a notice of appeal.” 551 U.S.

at 208. Those observations reflect the most natural meaning of the text: It sets out an inalterable, jurisdictional

period during which a would-be appellant must act.

In Bowles, a prisoner was denied habeas relief and

missed the time to appeal. 551 U.S. at 207. The district

court granted Bowles’s motion to reopen and advised that

he had 17 days to appeal (rather than the statutory 14

days). Bowles filed after the statutory period had elapsed,

but within the deadline incorrectly set by the district

court. This Court held that, notwithstanding the obvious

prejudice to Bowles, his appeal was untimely for failure to

comply with Section 2107(c)’s “mandatory and jurisdictional” 14-day window. Id. at 207-208.

This Court’s subsequent discussions of Bowles provide

yet-more evidence of the ordinary meaning of the textual

instruction: when the district court reopens the time to

appeal for a 14-day period, a would-be appellant must file

an appeal during that period to establish appellate jurisdiction. See Henderson ex rel. Henderson v. Shinseki, 562

U.S. 428, 433 (2011) (“In Bowles, we held that the statutory limitation on the length of an extension of the time to

file a notice of appeal … is ‘jurisdictional.’ ”) (citations

omitted) (emphasis added); Hamer v. Neighborhood

Hous. Servs. of Chicago, 583 U.S. 17, 18-19 (2017) (Bowles

addressed the “time to file a notice of appeal”).

2. Rule 4(a)(6) reinforces that a timely notice of

appeal is required.

Federal Rule of Appellate Procedure 4, which (together with Rule 3) operationalizes Section 2107’s jurisdictional mandate, Becker, 532 U.S. at 765, confirms that

a notice of appeal must be filed during the 14-day period

following a grant of reopening. Rule 4(a)(6) specifies that

the district court may “reopen the time to file an appeal”

for a 14-day period. (Emphasis added). Petitioner failed to

establish jurisdiction because he did not “file an appeal”

during the period that the district court reopened for him.

When the Advisory Committee added that “to file”

language to Rule 4(a)(6) in 1998, it explained that it was

not changing what the rule has meant since its adoption.

The 1998 amendment was “intended to be stylistic only”

“to make the rule more easily understood.” Fed. R. App.

P. 4, advisory committee’s note (1998 Amendment). Cf.

City of San Antonio v. Hotels.com, L. P., 593 U.S. 330, 339

(2021). The Advisory Committee has insisted since 1991

on the movant making a filing during the 14-day period:

“If the motion is granted, the district court may reopen

the time for filing a notice of appeal only for a period of 14

days from the date of entry of the order reopening the

time for appeal.” Fed. R. App. P. 4, advisory committee’s

note (1991 Amendment).

This also “happens to be a case in which the legislative

history” makes it “pellucidly clear” that the Rule accurately reflects the meaning of the statutory text. Zuni

Pub. Sch. Dist. No. 89 v. Department of Educ., 550 U.S.

81, 106 (2007) (Stevens, J. concurring). As described

above, p.6, supra, the Advisory Committee asked Congress to amend Section 2107 to match the newly adopted

Rule 4(a)(6), and Congress obliged just eight days later

with a bill implementing these “technical corrections,”

H.R. Rep. 102-322 at 4 (1991), reprinted in 1991

U.S.C.C.A.N. 1303, 1304. The House Judiciary Committee reported that the amendments to Section 2107 were

“[d]ue to recent changes in the Rules of Appellate Procedure.” Id. at 1309.

“Those who find legislative history useful will find confirmation in” these unanimous sources of contemporary

interpretation—all of which suggest that Rule 4(a)(6) and

Section 2107(c) were intended to have the same meaning,

and to require a filing during the 14-day appeal period

upon reopening. Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519, 535 (2013).

3. Section 2107(c) and Rule 4(a)(6) do not allow

“ripening,” unlike other provisions that do.

The judgment below is further supported by what the

text relevant here does not say: Unlike other provisions

“deeming certain premature notices of appeal effective,”

FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S.

269, 273 (1991), neither Section 2107(c) nor Rule 4(a)(6)

contemplates deeming a tardy notice of appeal timely following reopening.

Other parts of Rule 4(a) embrace a narrow ripening

principle for notices of appeal filed within one of two

defined windows: “after the court announces a decision or

order,” and either “before the entry of the judgment or

order,” Rule 4(a)(2), or else “before [the district court] disposes of any motion listed in Rule 4(a)(4)(A),” Rule

4(a)(4)(B)(i). See FirsTier, 498 U.S. at 272-273. Those are

the limited, enumerated exceptions to the general rule

that a notice of appeal must be filed after entry of a final

order, and before 30 (or 60) days have elapsed. Fed. R.

App. P. 4(a)(1). This Court in FirsTier explained that the

judicially created exception codified by Rule 4(a)(2) “was

intended to protect the unskilled litigant who files a notice

of appeal from a decision that he reasonably but mistakenly believes to be a final judgment[.]” 498 U.S. at 276;

see, e.g., Firchau v. Diamond Nat’l Corp., 345 F.2d 269,

270-271 (9th Cir. 1965).

But FirsTier also indicated that, to the extent the ripening principle ever had a broader scope, it was cabined

by the enacted text of Rules 4(a)(2) and 4(a)(4)(B)(i). See

498 U.S. at 276. As this Court has elsewhere explained,

when Congress codifies what was once an unwritten judi-

cial “practice[ ],” it was “for the consideration of Congress,

not the courts,” to decide what to codify and what to omit.

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639, 649 (2012).

After FirsTier, any “broader notion of when a notice

of appeal filed before entry of judgment may be effective”

cannot “survive the Supreme Court’s narrower construction of the specific appellate rule governing such notices

of appeal without rendering the rule largely if not entirely

superfluous.” Outlaw v. Airtech Air Conditioning &

Heating, Inc., 412 F.3d 156, 160 n.2 (D.C. Cir. 2005) (Roberts, J.). There would be no reason for Rules 4(a)(2) and

4(a)(4)(B) to specify ripening in these limited situations if

ripening naturally applied to every filing submitted

before a period to file has expired.

Petitioner (Pet.Br.26) and the Solicitor General

(U.S.Br.18) assert that ripening is not confined to only

those rules expressly embracing it. They point to courts’

acceptance of notices of appeal filed after a district court

order but before the order is certified for interlocutory

appeal under Federal Rule of Civil Procedure 54(b). But

as several courts have noted, that acceptance is merely a

straightforward application of Rule 4(a)(2). See, e.g.,

Clausen v. Sea-3, Inc., 21 F.3d 1181, 1187 (1st Cir. 1994)

(“[B]y virtue of Fed.R.App.P. 4(a)(2), [appellant’s] premature notice of appeal ripened when the district court certified its … judgment pursuant to Fed.R.Civ.P. 54(b).”);

Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir.

1988); In re Bryson, 406 F.3d 284, 289 (4th Cir. 2005);

Brown v. Columbia Sussex Corp., 664 F.3d 182, 189 (7th

Cir. 2011). An interlocutory order is “announced” for purposes of Rule 4(a)(2) when it is issued, and “its judgment

[is] entered” when the Rule 54(b) certification renders it

final and appealable. Brown, 664 F.3d at 187.

The text of Rule 4(a)(6) is also meaningfully different

from those rules that allow ripening. Rules 4(a)(2) and

4(a)(4)(B)(i) both specify the date on which a “ripened”

notice of appeal should be deemed to have been filed: A

premature notice of appeal susceptible to ripening under

Rule 4(a)(2) “is treated as filed on the date of and after the

entry” of judgment. Fed. R. App. P. 4(a)(2). And a notice

of appeal filed while the time to appeal is tolled pending

disposition of a post-judgment motion under Rule

4(a)(4)(A) “becomes effective … when the order disposing

of the last such remaining [post-judgment] motion is

entered.” Fed. R. App. P. 4(a)(4)(B)(i). Rule 4(a)(6), by

contrast, does not identify any point during the 14-day

reopening window that a premature notice of appeal

should be “treated as filed” or “become effective.” It is

unlikely the Rules would fail to specify when an “event of

jurisdictional significance” occurs. Griggs, 459 U.S. at 58.

In sum, the various rules permitting, limiting, and

rejecting “ripening” of notices of appeal filed at the wrong

time would all be surplusage if, as the dissent argued

below, the rules embrace some universal principle that an

order granting extension or reopening “retroactively validates an earlier, untimely notice of appeal.” Pet.App.16a.

That construction would “render … entire” rules and

“subparagraph[s] meaningless.” Pulsifer v. United

States, 601 U.S. 124, 143 (2024) (citation omitted). As the

Chief Justice once wrote for the D.C. Circuit: “The fact

that there is a rule governing pre-judgment premature

notices of appeal and another rule governing post-judgment premature notices of appeal hardly means that

courts are at liberty to fashion additional doctrines saving

premature notices of appeal that are not saved under the

rules[.]” Outlaw, 412 F.3d at 160 n.2.

4. Requiring a timely notice of appeal after reopening

is granted is consistent with precedent and respects

Congress’s choices.

a. Faithful application of the text of Section 2107(c) is

consistent with centuries of precedent demanding strict

compliance with jurisdictional rules. When an “appeal has

not been prosecuted in the manner directed, within the

time limited by the acts of Congress, it must be dismissed

for want of jurisdiction.” United States v. Curry, 47 U.S.

106, 113 (1848). And “if the mode prescribed for … appeal

be too strict and technical, and likely to produce inconvenience or injustice, it is for Congress to provide a remedy

by altering the existing laws; not for the court.” Ibid.

Clear rules inform all parties of the importance of

compliance, with the understanding that the court will

lack the power to adjust those rules for special circumstances. That is why this Court has long held that “strict

adherence to the procedural requirements specified by

the legislature is the best guarantee of evenhanded

administration of the law.” Mohasco Corp. v. Silver, 447

U.S. 807, 826 (1980). True, application of jurisdictional

statutes can lead to harsh results in individual cases; “[f]iling deadlines, like statutes of limitations, necessarily

operate harshly and arbitrarily with respect to individuals

who fall just on the other side of them, but if the concept

of a filing deadline is to have any content, the deadline

must be enforced.” United States v. Locke, 471 U.S. 84,

101 (1985). “Any less rigid standard would risk encouraging a lax attitude toward filing dates.” United States v.

Boyle, 469 U.S. 241, 249 (1985).

b. Contrary to petitioner’s suggestion (Pet.Br.24), no

equitable doctrine permitted the court of appeals to

simply “deem” his improper notice of appeal timely. A

court’s power to deem a document as having been filed at

a time other than when it was entered on the docket comes

from the common-law doctrine of nunc pro tunc, meaning

“now for then.” Roman Catholic Archdiocese of San

Juan, Puerto Rico v. Acevedo Feliciano, 589 U.S. 57, 65

(2020) (citing Black’s Law Dictionary 1287 (11th ed.

2019)). That doctrine permits federal courts to deem filings effective as of an earlier date to “ ‘reflect[ ] the reality’

of what has already occurred.” Ibid. (quoting Missouri v.

Jenkins, 495 U.S. 33, 39 (1990)).

But the nunc pro tunc doctrine has strict limits and

cannot save petitioner’s untimely filing here. It has always

been understood to extend a court’s power to correct a

“delay [that] has arisen from the act of the court,” Gray v.

Brignardello, 68 U.S. 627, 636 (1863), and is not “attributable to the laches of the parties,” Mitchell v. Overman,

103 U.S. 62, 63-65 (1880). Issuing an order nunc pro tunc

is appropriate only to conform the record to the historical

facts, not as an “Orwellian vehicle for revisionist history—

creating ‘facts’ that never occurred in fact.” Roman Catholic Archdiocese, 589 U.S. at 65 (citation omitted).

The nunc pro tunc doctrine was historically used to

rescue an otherwise untimely appeal only when the

untimeliness was caused by the court’s failure to take a

required action. To take an appeal in the Nineteenth Century, a party had to submit a “bill of exceptions” to be

signed by a judge during a “term” of court. Aetna Ins. Co.

v. Boon, 95 U.S. 117, 118 (1877). Often a bill of exceptions

was timely “tendered to the judge,” yet not timely signed.

Sheppard v. Wilson, 47 U.S. 260, 274 (1848). So judges

would “sign bills of exception after the trial, nunc pro

tunc, the bills being dated as if taken on the trial.” Id. at

275. In all cases, it was the delay of the court to act on the

party’s timely filing—not a delay by the party—that permitted the order to be made effective as of an earlier date.

That traditional equitable authority could not support

resurrecting petitioner’s untimely appeal, where his failure to file a timely notice of appeal was not attributable to

the court. Petitioner does not dispute that he filed his purported “notice of appeal” after his time to appeal expired.

His filing was therefore “not merely defective” but “a nullity,” having the same effect as “if no notice of appeal were

filed at all.” Griggs, 459 U.S. at 61. Equity cannot alter

that “reality.” Roman Catholic Archdiocese, 589 U.S. at

65 (citation omitted); see Bowles, 551 U.S. at 214.

c. Attempting to equitably enlarge the reopening

period would also upset the balance that Congress struck

when it expanded the 30-day appeal period to 180 days for

parties who did not receive notice of a judgment. Before

Section 2107(c), a party who received notice of a judgment

for the first time more than 30 days after the close of the

appeal period had no recourse. E.g., Alaska Limestone

Corp. v. Hodel, 799 F.2d 1409, 1412 (9th Cir. 1986); Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226, 228 (4th

Cir. 1981). The Advisory Committee note to Rule 4(a)(6)

explains that reopening is a “limited opportunity for

relief ” for such parties. Fed. R. App. P. 4, advisory committee’s note (1991 Amendment) (emphasis added). Without limits, reopening could “unduly affect the time when

judgments become final.” Marcangelo, 47 F.3d at 90.

Section 2107(c) thus “careful[ly] balance[es the] interests” in a fair opportunity for appeal against the interests

of all parties and the courts in finality. Marcangelo, 47

F.3d at 90. The reopening that Congress created is only

available for a limited time after a party receives notice;

is never available more than 180 days after judgment is

entered; creates a limited jurisdictional window in which

the party must file a notice of appeal or else forfeit the

appeal for good; and is not available if the prevailing party

would be prejudiced by the judgment loser’s apparent

failure to appeal. Fed. R. App. P. 4(a)(6); see also advisory

committee’s note (1991 Amendment). Those limits mean

that not every party that fails to receive timely notice of a

judgment will succeed in reopening his appeal. Congress

put petitioner’s situation in that category.

The statutory text and corresponding rule reflect a

compromise that is fair to all litigants and that supports

efficient judicial administration: A party that did not

receive notice of the original judgment can receive a second chance through a motion to reopen. But a party whose

motion is granted—whose window “to file an appeal” is

reopened—must actually file a timely notice of appeal to

create appellate jurisdiction. Petitioner did not, so his

appeal was properly dismissed.

B. Petitioner’s arguments are unavailing.

Petitioner doesn’t really dispute that Section 2107

required him to file a notice of appeal, that his notice of

appeal was ineffective when filed, or that the statute and

rule plainly contemplate a notice of appeal filed during the

reopened window. Petitioner’s argument instead depends

on the contention that Section 2107(c) implicitly adopts a

“background ripening principle” that purportedly permits a court to “deem … effective” his premature notice

of appeal. Pet.Br.9 (quoting FirsTier, 498 U.S. at 273).

That argument is flawed in multiple respects.

1. Petitioner advances an extra-broad “ripening”

principle that lacks historical support.

a. For one thing, petitioner vastly overstates the

“ripening principle” that existed before Rule 4(a)(2).

Petitioner cites (Pet.Br.22-23) a laundry list of pre1979 decisions supposedly embracing a broad ripening

principle. But those decisions largely concern the situation addressed by Rule 4(a)(2)—a premature notice of

appeal filed before entry of judgment—that is not at issue

here. Two cases squarely presented that situation. See

Richerson v. Jones, 551 F.2d 918, 922-923 (3d Cir. 1977);

Markham v. Holt, 369 F.2d 940, 942 (5th Cir. 1966). 2 Two

more cases concerned the closely analogous circumstance

of a notice of appeal filed after an interlocutory order but

before the Rule 54(b) certification making that order

appealable. See Tilden Fin. Corp. v. Palo Tire Serv., 596

F.2d 604, 606-607 (3rd Cir. 1979); Merchants & Planters

Bank of Newport, Ark. v. Smith, 516 F.2d 355, 356 n.3 (8th

Cir. 1975) (per curiam). Three other cases applied the

cumulative finality doctrine to treat two non-final orders

that together dispose of the case as, functionally, a single

appealable order. See Jetco Elec. Indus. v. Gardiner, 473

F.2d 1228, 1231 (5th Cir. 1973); Morris v. Uhl & Lopez

Eng’rs, Inc., 442 F.2d 1247, 1250 (10th Cir. 1971); Eason

v. Dickson, 390 F.2d 585, 588 (9th Cir. 1968). 3

None of petitioner’s cases suggests that a notice of

appeal filed too late after the order appealed from can

ever be effective. The cases instead concerned notices of

appeal that were timely in relation to the order appealed

from, but that were filed before the order became final.

The same is true of Lemke v. United States, 346 U.S. 325 (1953)

(per curiam), invoked by the Solicitor General (U.S.Br.19). As this

Court observed in Manrique v. United States, 581 U.S. 116 (2017),

the “Lemke petitioner’s notice of appeal would now be timely under

Rule 4(b)(2).” Id. at 125.

Petitioner’s last cited decision does not involve prematurity at

all. It held that an untimely JNOV motion was a legal nullity that did

not toll the time for appeal under then-Rule 4(a)(4), so the government’s timely notice of appeal was effective. United States v.

Valdosta-Lowndes Cnty. Hosp. Auth., 668 F.2d 1177 (11th Cir. 1982).

Those cases do not support the existence of an evenbroader ripening principle that would be necessary for

petitioner here, where a late notice of appeal was filed for

the first time after entry of an appealable order.

b. In any event, FirsTier clarified that any ripening

is now confined to the terms of the Rules. This Court held

that “Rule 4(a)(2) was intended to codify a general practice in the courts of appeals of deeming certain”—not all—

“premature notices of appeal effective.” FirsTier, 498

U.S. at 273. “Premature” has a precise meaning in this

context—it is not just a synonym for “before.” Rather, an

action is “premature” when it is “done before the usual,

proper, or appointed time.” Premature, The Oxford English Dictionary 362 (2d ed. 1989) (emphasis added). The

proper time for petitioner to appeal was within 60 days

after the judgment, per Rule 4(a)(1)(B). He filed his only

notice of appeal after that window closed. That was not

premature. It is what FirsTier called a “tardy notice of

appeal” that cannot benefit from ripening. 498 U.S. at 273.

Importantly, FirsTier refused to extend ripening

beyond the terms of Rule 4(a)(2). A “notice of appeal from

a clearly interlocutory decision,” like “a discovery ruling,”

will not subsequently ripen because “[a] belief that such a

decision is a final judgment would not be reasonable.” 498

U.S. at 276. The Rule, as construed in FirsTier, is thus

narrower than the broad ripening principle that petitioner

espouses. For example, the pre-1979 Eason decision

relied on by petitioner (Pet.Br.23) permitted ripening of a

notice from a clearly interlocutory order—the denial of a

motion for appointment of a three-judge court. See 390

F.2d at 587-588. But under Rule 4(a)(2) and FirsTier, that

filing would have been ineffective to bring up the subsequent judgment for appeal. 498 U.S. at 276. As then-Judge

Roberts explained, FirsTier repudiated any “broader

notion” of ripening, which would necessarily render the

rule’s text “superfluous.” Outlaw, 412 F.3d at 160 n.2.

c. Petitioner’s description of the ripening principle

(Pet.Br.35) as depending merely on “provid[ing] adequate

notice before the jurisdictional deadline” cannot be

squared with Rule 4. Notice alone is not sufficient; a

would-be appellant must comply with Section 2107 and

Rules 3 and 4.

As discussed above, Rules 4(a)(2) and 4(a)(4)(B)

delimit the period during which ripening can occur with

not only a fixed end point but also a fixed starting point:

“after the court announces a decision or order.” Fed. R.

App. P. 4(a)(2); accord Fed. R. App. P. 4(a)(4)(B) (“after

the court announces or enters a judgment”). A putative

notice of appeal filed either before the starting point or

after the end point is not timely and has no legal effect,

regardless of what notice it might provide. See Griggs, 459

U.S. at 61.

This Court has never applied petitioner’s atextual

“functional approach” to ripening. Contra Pet.Br.21. To

the contrary, the Court held that it is not enough for a

putative notice of appeal to “give[ ] the notice required by

Rule 3” regarding a non-prevailing party’s intent to

appeal; such a filing is ineffective unless it is also “filed

within the time specified by Rule 4.” Smith v. Barry, 502

U.S. 244, 249 (1992); see also Becker, 532 U.S. at 765.

If notice alone were sufficient, then the ripening

exception would swallow the deadlines in Rule 4(a)(1).

Parties could annex a “notice of appeal” of any future

adverse judgment to any pleading or motion and thereby

“provide[ ] adequate notice before the jurisdictional deadline”—which is all that petitioner claims is required.

Pet.Br.35. Courts consistently reject that view. Rule

4(a)(2) “does not afford relation forward for a notice of

appeal that is filed before the court announces the decision

that the would-be appellant later seeks to challenge.”

FEDERAL PRACTICE & PROCEDURE § 3950.5; see, e.g.,

Wall Guy, Inc. v. F.D.I.C., 95 F.4th 862, 869 (4th Cir.

2024); Marshall v. Comm’r Pa. Dep’t of Corrs., 840 F.3d

92, 95 (3d Cir. 2016); Bogle v. Orange Cnty. Bd. of Cnty.

Comm’rs, 162 F.3d 653, 656 (11th Cir. 1998). 4

Section 2107(c)’s text takes the same approach. A

motion for leave to reopen will virtually always afford the

notice required by Rule 3(c)(1), but the statute nevertheless requires a notice of appeal within 14 days after reopening is granted. Functional notice has never been

enough to satisfy Rules 3 and 4.

2. Petitioner’s vision of ripening cannot be reconciled

with the text or structure of Section 2107.

Petitioner’s reading of Section 2107(c) (Pet.Br.27-34)

would run roughshod over its textual instructions. Nothing in the text, structure, or history of Section 2107 supports allowing a tardy notice of appeal to “ripen” during

the reopened period for an appeal.

a. Petitioner asserts (Pet.Br.28) that an appeal can be

commenced without filing a notice of appeal after reopening is granted because “Section 2107(c) does not even

mention notices of appeal” and “does [not] say anything

about what appellants must do during the 14-day reopening period.” No court has embraced that argument, which

ignores the “cardinal rule that a statute is to be read as a

whole.” King v. St. Vincent’s Hosp., 502 U.S. 215, 221

(1991). Section 2107(a) sets out the general rule that,

This Court has held, applying the analogous provision governing criminal appeals (Rule 4(b)(2)), that “[i]f the court has not yet

decided the issue the appellant seeks to appeal, then the [ripening]

Rule does not come into play.” Manrique, 581 U.S. at 124.

“[e]xcept as otherwise provided in this section, no appeal”

shall commence “unless notice of appeal is filed, within

thirty days after the entry of such judgment, order or

decree.” Section 2107(c) then affords a district court discretion to reopen the time to appeal beyond the 30-day

window, but it does not modify the clear requirement in

Section 2107(a) that every appeal be commenced by filing

a timely notice of appeal.

b. Petitioner’s structural argument (Pet.Br.28-31)

asks the Court to extrapolate the rules’ limited and enumerated “ripening” exceptions into a wide-ranging standard for all notices of appeal filed at the wrong time. See

Pet.Br.19 (arguing that “premature notices of appeal generally take effect when an appeal period opens”). He

claims that, because some premature notices of appeal can

ripen consistent with Section 2107(a), the same must be

true under Section 2107(c) because (c) incorporates the

notice-of-appeal requirement found in (a).

Petitioner’s argument cannot account for the important textual differences between subsections (c) and

(a). Section 2107(a)—the provision for ordinary, timely

appeals—uses the word “within,” which petitioner argues

can also mean “before,” such that a notice of appeal filed

before a final judgment can ripen upon entry of final judgment. Pet.Br.29. But that argument is merely a statutory

justification for Rule 4(a)(2) ripening, which is no help to

petitioner here. See p.18, supra. There is no comparable

ripening instruction in Rule 4(a)(6), and the differing text

of Section 2107(c) confirms that no ripening was permitted in reopening cases. Section 2107(c), unlike subsection

(a), does not use the word “within.” It says that, once reopened, a notice of appeal must be filed during a “period of

14 days from the date of entry of the order reopening the

time for appeal.”

This Court presumes that “differences in language

like this convey differences in meaning.” Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86 (2017). Unlike

Section 2107(a), Section 2107(c) defines both the beginning and the end of the “period” during which a would-be

appellant must act. It commences “from the date of entry

of the order” and continues for “14 days.” Ibid. (emphasis

added).

Petitioner also misunderstands the role of Section

2107(c) in the statute. The premise of petitioner’s argument is that a premature notice of appeal can sometimes

ripen upon “the entry of such judgment, order or

decree”—that is, the moment when an order becomes

final. See 28 U.S.C. § 2107(a). But Section 2107(c) applies

only to a party who failed to timely appeal a final order. It

therefore does not logically incorporate the limited ripening principle for premature notices of appeal filed before

an order became final.

3. Petitioner draws the wrong inferences about

Congress’s intent for reopened appeal periods.

a. Petitioner’s legislative history argument (Pet.Br.

31-34) is actually an argument about the absence of legislative history: Because Section 2107(c) was enacted after

FirsTier, and the legislative history does not expressly

reject ripening following a granted motion to reopen,

petitioner claims Congress “would have understood” that

ripening would apply. But for the reasons explained

above, any Member of Congress who studied FirsTier

would have drawn exactly the opposite conclusion. See

pp.17-18, supra. To the extent Congress acquiesced to

FirsTier, that decision plainly provides that ripening does

not apply to “tardy notices of appeal” like petitioner’s. 498

U.S. at 273. FirsTier would have instructed Congress

that, for a notice of appeal to ripen, an express provision

was needed akin to Rule 4(a)(2).

The history also shows that, in 1991, the Advisory

Committee and Congress understood and expected that

parties would sometimes need to file more than one notice

of appeal in connection with the same judgment. As petitioner notes (Pet.Br.25), at the time Section 2107(c) was

enacted and Rule 4(a)(6) was promulgated, the thenoperative Rule 4(a)(4) required a party that filed a premature notice of appeal after judgment but before disposition of a post-judgment motion tolling the time to appeal

to file a “second notice of appeal” after disposition of the

post-judgment motion. Fed. R. App. P. 4, advisory committee’s note (1993 Amendment). The Advisory Committee subsequently eliminated that second-notice-of-appeal

requirement. Ibid. But the Committee has made no similar change to Rule 4(a)(6), which was adopted against both

the formalist backdrop of Rule 4(a)(4)’s second-notice-ofappeal requirement and FirsTier’s proscription on the

ripening of “tardy notice[s] of appeal,” 498 U.S. at 273.

b. Petitioner next argues (Pet.Br.32-34) that Section

2107(c)’s provision conditioning reopening on a lack of

prejudice shows that Congress intended to authorize ripening. See also U.S.Br.19 (analogizing to “harmless

errors”). But while a lack of prejudice is necessary to

authorize ripening, it has never been sufficient. The

appellee in Bowles was not even arguably prejudiced

when the appellant filed his notice of appeal “within the 17

days [erroneously] allowed by the District Court’s order.”

551 U.S. at 207; see id. at 221 (Souter, J., dissenting). Nevertheless, the Court construed Rule 4(a)(6) to mean what

it said and dismissed the untimely appeal. Id. at 213.

If petitioner were correct that “ripening is always warranted upon reopening” in light of the “ ‘no prejudice’

standard,” (Pet.Br.33), then Section 2107(c) and Rule

4(a)(6) would not establish a 14-day window in which a

notice of appeal must be filed. They would simply provide

that a granted motion to reopen commences the appeal.

c. Proper application of these jurisdictional rules is

hardly a “hollow ritual of empty paper shuffling.” Contra

Pet.Br.41 (cleaned up). The timely filing of a notice of

appeal does more than merely provide notice that a party

wishes to appeal; it carries significant practical consequences. In addition to “transfer[ring] adjudicatory

authority from the district court to the court of appeals,”

Manrique, 581 U.S. at 120, a notice of appeal begins an

administrative process that often encompasses ordering

transcripts, setting a briefing schedule, and compiling the

record. Parties and courts need to know when deadlines

begin to run and when they will end. Requiring a timely

post-reopening notice of appeal provides that certainty.

A notice of appeal that complies with Rules 3 and 4

provides an appellee with notice (i) that appellant has

appealed the judgment; (ii) that jurisdiction has transferred; and (iii) that the clock has started running on appellant’s opportunity to be heard. Both a timely and a

premature notice of appeal (within the scope of Rules

4(a)(2) and 4(a)(4)) provide that notice. But a tardy notice

of appeal, like petitioner’s, does not. See Griggs, 459 U.S.

at 61. Neither does the filing of a motion to reopen, or even

the order granting it. These events communicate that the

judgment loser might appeal, but not that he definitely

will appeal. It is thus reasonable for a putative appellee to

ignore a tardy notice of appeal.

What’s more, the notice function of Rules 3 and 4 has

an undeniably formalist dimension. A document that

leaves “genuine doubt … about who is appealing, from

what judgment, [or] to which appellate court” does not

suffice. Becker, 532 U.S. at 767; see also Torres v. Oakland

Scavenger Co., 487 U.S. 312, 314-318 (1988) (a putative appellee not named in the notice of appeal will not be “bound

by an adverse judgment”). These elements—the parties

to the case, the judgment at issue, and the circuit to which

the appeal is taken—must be stated in the notice of appeal

even though they are already well-known to all parties.

Unless the formalities are complied with, this Court has

long held there is no appellate jurisdiction. On petitioner’s

functional approach, those cases would make no sense.

Beyond the litigants, courts and their administrative

staff are among the primary beneficiaries of jurisdictional

rules that provide not just notice but certainty. When the

rules allow for ripening, they specify precisely when a

notice of appeal becomes effective. See Fed. R. App. P.

4(a)(2) (“notice of appeal … treated as filed on the date of

and after the entry” of final judgment); Fed. R. App. P.

4(a)(4)(B)(i) (specifying when notice of appeal “becomes

effective”). Those clarifying instructions enable courts to

set key deadlines or assess a party’s compliance with

appeal obligations such as paying fees, Fed. R. App. P.

3(e), or ordering transcripts, Fed. R. App. P. 10(b)—both

of which must be completed within specified days from the

filing of a notice of appeal. But if this Court accepted

petitioner’s atextual “ripening” following a grant of reopening, then there would be no similar clarity about when

the notice of appeal is effective. Under petitioner’s “ripening principle,” there is no way for a court clerk to objectively calculate deadlines keyed to the filing date of a

notice of appeal that was never filed—and thus no way to

objectively resolve a dispute between the parties over

compliance with their obligations or deadlines.

Petitioner’s proposed rule would thus compound the

workload of judicial administrative staff who are already

stretched thin. In 2024, civil case filings in district courts

“increased 22 percent” to 347,991 cases nationwide. 5 Federal district and circuit court judges alike have for years

expressed concern about their overloaded dockets, including the impact of that workload on court staff. 6 Under

petitioner’s view, a court clerk responsible for processing

thousands of documents would be forced to go sleuthing

to determine whether, when, and how an untimely and

procedurally improper document should be deemed a

timely notice of appeal, and if so what impact it would have

on various deadlines and appeal requirements. In this

case, confusion about petitioner’s non-filing during the

reopening window probably contributed to his appeal sitting for months with no progress. See p.8, supra.

In short, because Section 2107(c) and Rule 4(a)(6) create a new specific window to file an appeal, both a reasonable prevailing party and a court clerk would expect the

losing party to either file his notice of appeal during that

window or else give up the appeal. The close of the 14-day

window provides certainty, at last, regarding the finality

of the judgment.

4. Petitioner fails to account for the textual

difference between “extension” and “reopening.”

Petitioner next attacks the court of appeals’ holding

that, even if “extensions” of the time to appeal under Rule

See Federal Judicial Caseload Statistics 2024, Administrative

Office of the United States Courts, https://www.uscourts.gov/

data-news/reports/statistical-reports/federal-judicial-caseloadstatistics/federal-judicial-caseload-statistics-2024 (last visited Mar.

26, 2025).

See Merrit McAlister, Aldaberto Jordan, and Kimberly J.

Mueller, What Can Be Done About Backlogs?, JUDICATURE, Vol. 107,

No. 2 (2023), https://judicature.duke.edu/wp-content/uploads/sites/

3/2023/10/MCALISTERetal_Vol107No2.pdf.

4(a)(5) can accommodate ripening (according to Fourth

Circuit precedent), the different text of Rule 4(a)(6) reopening requires a different outcome. The court of appeals

was right. Petitioner does not persuasively argue

(Pet.Br.42-48) that the words “extend” and “reopen” in

Section 2107(c) and Rules 4(a)(5) and 4(a)(6) mean the

same thing. Indeed, petitioner concedes (Pet.Br.44) that

the extension and reopening provisions in Section 2107(c)

“create two different mechanisms that address two different sets of circumstances.” Whatever the correct ultimate

interpretation of Rule 4(a)(5), petitioner cannot demonstrate that a ripening principle can be squared with the

distinct text and circumstances involved in a reopened

window “to file an appeal” under Rule 4(a)(6). 7

Petitioner makes much of HollyFrontier Cheyenne

Refining, LLC v. Renewable Fuels Association, 594 U.S.

382 (2021), where this Court held that a statute’s use of

the word “extend” does not require “a break in continuity,” such that a period may be “extended” even after it

The D.C. Circuit explained persuasively in Outlaw that courts

are not “at liberty to fashion additional [ripening] doctrines” beyond

Rules 4(a)(2) and 4(a)(4). 412 F.3d at 160 n.2 (Roberts, J.); accord

Bowles, 551 U.S. at 214 (“[T]his Court has no authority to create

equitable exceptions to jurisdictional requirements[.]”). Although this

appeal does not present an opportunity to consider ripening under

Rule 4(a)(5), the circuit court decisions embracing it may well be

incorrect for some of the same reasons discussed above. Section

2107(c) requires a motion for extension to be filed “not later than 30

days after the expiration of the time otherwise set for bringing

appeal,” not “within thirty days” as in Section 2107(a) (which petitioner contends sometimes means “before”). And Rule 4(a)(5), like

Rule 4(a)(6), does not provide for ripening and does not state a date

on which an earlier-filed notice of appeal would become effective. At

the very least, this Court should not decide the meaning of Rule

4(a)(6) by taking as a given the ripening approach that some lower

courts have accepted under Rule 4(a)(5).

has lapsed. Id. at 392. According to petitioner (Pet.Br.47),

it must follow that a “premature” notice of appeal can be

deemed timely upon a reopening of the time to appeal

because reopenings and “extensions are no different.”

But that hardly follows. HollyFrontier interpreted the

word “extension” in a specific context—an administrative

agency’s denial of a small-refinery hardship exemption

under the Clean Air Act. See 594 U.S. at 386; 42 U.S.C.

§ 7545(o)(9)(B)(i). The Court was careful not to “suggest

that every use of the word ‘extension’ must be read the

same way.” HollyFrontier, 594 U.S. at 392.

Even accepting petitioner’s definition of “extend,” he

primarily argues that because HollyFrontier took “extension” to permit an agency to reach back and extend eligibility periods after they had closed, “reopening” must

permit courts to do the same thing. But if extend and reopen were interchangeable, then Congress could have

simply retained the statutory language that already permitted the district court to “extend the time for appeal …

based on failure of a party to learn of the entry of the judgment.” 28 U.S.C. § 2107(c) (1948) (emphasis added). Congress instead chose to enact an entirely different process

for “reopening” the time to appeal.

Extension and reopening also differ in another important way: Whereas Section 2107(c) creates a 14-day

window for reopening, Congress did “not say how long an

extension may run.” Hamer, 583 U.S. at 23-24. Section

2107(c) therefore affords courts some discretion. See id.

at 27 (limitation on length of extension in Rule 4(a)(5)(C)

is a non-jurisdictional claim-processing rule). By sharp

contrast, the statute prescribes, as a jurisdictional

requirement, a clear 14-day window for filing a postreopening notice of appeal. See Bowles, 551 U.S. at 213.

In all events, HollyFrontier did not construe the term

“reopen” and it does not support petitioner’s atextual

position that Congress used “extend” and “reopen” in

Section 2107(c) to mean the same thing. Multiple statutes

consistently use the term “reopen” to refer to a discontinuity in which proceedings that have been closed require

some action taken to open them. See, e.g., 8 U.S.C.

§ 1229a(5)(C) (order of removal may be rescinded and removal proceedings restarted “upon a motion to reopen”);

11 U.S.C. § 350 (“After [a bankruptcy] estate is fully administered …, the court shall close the case,” but “[a] case

may be reopened … to administer assets, to accord relief

to the debtor, or for other cause.”); 26 U.S.C. § 7481(c)(1)

(after a “decision of the Tax Court becomes final,” “the

Tax Court may reopen the case solely to determine

whether the taxpayer has made an overpayment of …

interest”). Petitioner does not explain why Congress

would use the term “reopen” if it intended the new and

expressly marked 14-day time to appeal to be continuous

with the original period. That argument is irreconcilable

with the text and structure of Section 2107. 8

Petitioner argues (Pet.Br.43) that reopening can also be continuous because a motion to reopen can technically be filed on day 22

after the judgment, before the original appeal period closed. That’s

technically correct, but petitioner misses the point of that provision.

Reopening is available to parties who receive notice toward the end

of their initial time to appeal, without enough time to file a timely

notice. This is especially important for parties who file by mail, which

was universal in 1991. If reopening were available only when notice is

received after the full 30 days, then a would-be appellant who received

notice on day 29 would have to choose between two bad options: either

attempt to file a notice of appeal and risk missing the deadline, or

move to extend and be required to prove excusable neglect or good

cause. 28 U.S.C. § 2107(c).

The Fourth Circuit below thus construed Section

2107(c) and Rule 4(a)(5) (in accordance with precedent) as

extending “the period for filing a notice of appeal,” such

that “a notice of appeal filed at any time within the original

time for appeal or the approved extension period would

be timely.” Pet.App.9a (emphasis added). Petitioner argues (Pet.Br.44) that this explanation of extension is conceptually flawed because ripening in other contexts does

not depend on a “time traveler’s fiction” that a premature

notice of appeal was actually timely. But that is precisely

how Rules 4(a)(2) and 4(a)(4) operate. A notice of appeal

that was reasonably but erroneously filed before final

judgment is permitted “to become effective when judgment is entered”—in other words, it is deemed to have

been filed not on the actual date of filing but rather on

some future date (as if by a time traveler). See FirsTier,

498 U.S. at 276; see also Outlaw, 412 F.3d at 160-161.

But the court of appeals also correctly recognized that,

unlike an extension, “reopening” necessarily creates a

discontinuity that bars any attempt to relate forward a

tardy notice of appeal. Pet.App.10a. Gone is the first

appeal period under Section 2107(a), including its permissive “within” language. See Pet.Br.30. The new, jurisdictional 14-day reopening period runs “for a period of 14

days from the date of entry of the order reopening the

time for appeal”—a fixed start and end. 28 U.S.C.

§ 2107(c); see Bowles, 551 U.S. at 213. Under the specific

terms of Section 2107(c) and Rule 4(a)(6), that period was

petitioner’s second (and last) chance “to file his appeal.”

His appeal failed because he did not take it.

5. Jurisdictional rules should be applied uniformly to

all litigants.

a. Petitioner and his amici argue that this Court

should liberally construe Section 2107(c) to make special

accommodations for pro se and incarcerated filers. But

Bowles is powerful testimony that this Court cannot craft

exceptions to jurisdictional rules for sympathetic litigants. See 551 U.S. at 214. Even when correct application

of a jurisdictional rule may be described as “too strict and

technical, and likely to produce inconvenience or injustice,

it is for Congress to provide a remedy by altering the

existing laws; not for the court.” Gonzalez v. Thaler, 565

U.S. 134, 166 (2012) (Scalia, J., dissenting) (quoting

Curry, 47 U.S. at 113).

For that reason, when the Seventh Circuit recognized

that the former Rule 4(a)(4) posed a “trap for the unwary

into which many appellants, especially those not represented by counsel … have fallen,” it still was powerless to

create a special exception for pro se litigants and could

only recommend that the Rules be amended (and that district courts provide prophylactic guidance to pro se litigants). Averhart v. Arrendondo, 773 F.2d 919, 920 (7th

Cir. 1985). The text and structure of Section 2107(c) and

Rule 4(a)(6) cannot yield to petitioner’s concerns about

how those rules might apply to the detriment of some

hypothetical pro se appellants.

Even if this Court could reconstrue Rule 4(a)(6) to

address petitioner’s policy arguments, it should not

replace an administrable bright-line rule with an uncertain ripening principle. “By definition all rules of procedure are technicalities,” but their uniform application is

beneficial “on the theory that securing a fair and orderly

process enables more justice to be done in the totality of

cases.” Torres, 487 U.S. at 319 (1988) (Scalia, J., concurring in the judgment). The requirement to commence an

appeal by filing a timely notice of appeal under Rules 3

and 4 is easily understood by lawyers. See McNeil v.

United States, 508 U.S. 106, 113 (1993) (“Our rules of pro-

cedure are based on the assumption that litigation is normally conducted by lawyers.”).

b. Petitioner argues (Pet.Br.39) that it is “not intuitive” to pro se appellants that they must file a “second

notice of appeal” upon a grant of reopening. But this

Court has “never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse

mistakes by those who proceed without counsel.” McNeil,

508 U.S. at 113. In any event, petitioner quotes inapposite

precedent regarding the former Rule 4(a)(4), which provided that the filing of a post-judgment motion nullified a

timely filed notice of appeal from the final judgment and

required that a second notice of appeal be filed following

disposition of the post-judgment motion. Fed. R. App. P.

4(a)(4) (1979). In this case, unlike under former Rule

4(a)(4), no timely notice of appeal was ever filed. So a “second notice of appeal” is not at issue. Section 2107(c) and

Rule 4(a)(6) required that petitioner file a single, timely

notice of appeal within the reopened period.

Petitioner’s “second notice of appeal” argument also

rests on a flawed assumption: that other litigants in his

position will file a tardy notice of appeal instead of the

motion to extend or reopen that is unambiguously

required by Rule 4. In construing the rules, this Court

should not take as a starting point that litigants will ignore

them.

c. Petitioner further argues that requiring a notice of

appeal to be filed within the 14-day reopening window is

unfair because “[t]he same litigants who do not learn of an

adverse judgment within 21 days may not learn of a reopening order within 14 days.” Pet.Br.40. That is not what

happened here. The district court ordered that petitioner

be notified of its order granting reopening. See pp.7-8,

supra. And there is no evidence that petitioner did not

timely receive that order.

What’s more, any harshness associated with this rule

has already been softened by Rule 4(c), which codifies the

prison mailbox rule: To timely file a notice of appeal, an

incarcerated appellant need only deposit the pleading in

the prison’s “internal mail system” by the deadline. Fed.

R. App. P. 4(c)(1). Beyond that, it is Congress that created

a 14-day jurisdictional window that necessarily applies

only to people who did not timely receive notice of the

judgment. Congress did so as a means of balancing the

creation of a second chance with the need for finality. See

pp.5-6, supra. The judiciary must enforce that balance—

whatever its wisdom.

d. Finally, petitioner finds no refuge in the liberal

construction of pro se pleadings. Pet.Br.21 (citing Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam)). This case

does not turn on the labeling of a document or contents of

a notice of appeal under Rule 3, see, e.g., Becker, 532 U.S.

at 766, but rather timeliness under Rule 4. There is nothing in the untimely notice of appeal for this Court to liberally construe—the filing deadline cannot be “construed.”

That doesn’t mean this Court is powerless. The Court

can use its supervisory authority over the lower federal

courts, see Dickerson v. United States, 530 U.S. 428, 437

(2000), to diminish the likelihood (Pet.Br.41) of the hypothetical litigant who does “not learn of a reopening order

within 14 days” by instructing district courts to do just

what the court did here: include in every order granting a

motion to reopen a clear direction to file a timely notice of

appeal within 14 days. See Averhart, 773 F.2d at 920.

“Rules of procedure are a necessary part of an orderly

system of justice. Their efficacy, however, depends upon

the willingness of the courts to enforce them according to

their terms. Changes in rules whose inflexibility has

turned out to work hardship should be effected by the process of amendment, not by ad hoc relaxations by this

Court in particular cases. Such dispensations in the long

run actually produce mischievous results, undermining

the certainty of the rules and causing confusion among the

lower courts and the bar.” Houston v. Lack, 487 U.S. 266,

283 (1988) (Scalia, J., dissenting) (quoting Thompson v.

I.N.S., 375 U.S. 384, 390 (1964) (Clark, J., dissenting)).

Petitioner offers no sound basis for this Court to “shortcircuit the orderly process of rule amendment in order to

provide immediate relief in the present case.” Ibid.

C. At minimum, the court of appeals was not compelled

to exercise discretion in petitioner’s favor.

The judgment below could also be affirmed on the

ground that, even if Section 2107(c) could be read to permit a late-filed notice of appeal to “ripen” after reopening

is granted, the court of appeals was not required to deem

petitioner’s untimely notice of appeal effective upon reopening. Petitioner acknowledges that, to obtain reversal,

he needs this Court to establish a requirement that “ripening is always warranted upon reopening.” Pet.Br.33

(emphasis added). But the statute and Rule do not displace courts’ inherent discretion to insist on scrupulous

adherence to textual requirements. Especially in a case

like this one where petitioner had received multiple prior

accommodations.

1. Petitioner’s case made it this far only because he

benefitted from multiple acts of judicial discretion. Most

important, the Fourth Circuit exercised discretion to con-

strue his untimely notice of appeal as a motion to reopen.

Pet.App.56a-58a; Pet.Br.8. The Rules of Civil Procedure

afford courts discretion to reconstrue improperly styled

pleadings because “erroneous nomenclature does not prevent the court from recognizing the true nature of a motion.” Sacks v. Reynolds Secs., Inc., 593 F.2d 1234, 1239

(D.C. Cir. 1978) (citation omitted). But no written rule

demands reconstruals in every case. The court of appeals

might have reasonably informed petitioner that his “notice of appeal” was ineffective and directed him to file a

motion to reopen in accord with Section 2107(c) and Rule

4(a)(6). 9

Petitioner also benefited from the district court’s decision to grant his (reconstrued) motion to reopen. Section

2107(c) vests discretion in the district court to grant or

deny reopening using the word “may.” 28 U.S.C.

§ 2107(c). “The word ‘may’ clearly connotes discretion.”

Bouarfa v. Mayorkas, 604 U.S. 6, 13 (2024) (cleaned up).

Despite receiving those benefits, petitioner declined to

take advantage of the 14-day reopening period provided

by the district court. And he has never offered any excuse

for not doing so. Yet petitioner now asks this Court for a

Petitioner (Pet.Br.50-51) and the United States (U.S.Br.28-30)

argue that the Fourth Circuit erred in suggesting that its reconstrual

of petitioner’s untimely notice of appeal as a motion to reopen precluded that document from also serving as a notice of appeal. Amicus

agrees in part. Under Smith v. Barry, courts of appeals may “treat[ ]

a filing styled as a brief as a notice of appeal … if the filing is timely

under Rule 4 and conveys the information required by Rule 3(c).” 502

U.S. at 249. That decision implies that a court of appeals can construe

a document to serve more than one purpose. But the Fourth Circuit

correctly determined that petitioner’s filing could not be treated as a

notice of appeal because it was not “timely under Rule 4.” See ibid.;

accord Griggs, 459 U.S. at 60.

third exercise of discretion: to treat his objectively untimely notice of appeal as if it had been timely filed.

2. Petitioner relies on cases (Pet.Br.22-23) where a

court of appeals exercised discretion to treat prematurely

filed notices of appeal as timely filed. But those cases have

no relevance to the tardy notice of appeal at issue here.

And even if this Court were persuaded by petitioner’s

argument that his notice of appeal should be deemed

“premature,” then his cases (and others) confirm that the

decision whether to treat a prematurely filed notice of

appeal as timely is committed to courts’ discretion.

In Richerson, the Third Circuit held that a premature

notice of appeal “may be regarded as an appeal from the

final order in the absence of a showing of prejudice to the

other party.” 551 F.2d at 922 (emphasis added). The Ninth

Circuit has similarly held that a premature notice of

appeal “may fairly be regarded as a manifestation … of

[the appellant’s] intention to appeal.” Eason, 390 F.2d at

588 (emphasis added). And the Tenth Circuit held that it

“properly could refuse … to dismiss the appeal on the

notice that was filed,” and “that it had the right … to

retain jurisdiction of the appeal.” Morris, 442 F.2d at

1250-1251 (emphasis added). The D.C. Circuit agrees. See

Duma v. C.I.R., 534 F. App’x 4, 5 (D.C. Cir. 2013) (“[E]ven

if we had the discretion to recognize premature notices of

appeal, we would not exercise it here[.]”).

3. Assuming the text of Section 2107(c) could be

stretched to permit a court of appeals to recognize a tardy

notice of appeal as having been filed during the 14-day

reopening period, the judgment here should still be

affirmed because the Fourth Circuit did not abuse its discretion by declining to do so on this record. “Traditionally, … decisions on matters of discretion are reviewable

for abuse of discretion.” Highmark, Inc. v. Allcare Health

Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014) (cleaned up).

Abuse-of-discretion review affords “great deference … to

the [lower court’s] determination.” Monasky v. Taglieri,

589 U.S. 68, 92 (2020) (Alito, J., concurring in part).

The Fourth Circuit reasonably declined to cure petitioner’s failure to file a notice of appeal during the 14-day

reopening period because petitioner offered no explanation for not following Rule 4(a)(6) and the district court’s

order. Unlike a hypothetical petitioner who does not

receive notice of the reopening or is confused by the order,

the district court here specifically allowed petitioner “to

refile his appeal” and “REOPEN[ED] the time for [petitioner] to file his appeal for fourteen (14) days following

the entry of this Order.” Pet.App.61a. The district court

also took steps to ensure that petitioner received notice of

that reopening order: sending it by certified mail and

requesting a return receipt. Id. at 62a. There was no evidence that petitioner received the district court’s reopening order too late. The court of appeals’ reliance on these

facts (Pet.App.10a) in deciding not to exercise discretion

to permit ripening was reasonable.

Petitioner’s inability to overcome the abuse-of-discretion standard of review provides an alternative ground for

affirming the judgment.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Jacob J. Taber

PERKINS COIE LLP

1155 Avenue of the

Americas

22nd Floor

New York, NY 10036-2711

March 28, 2025

Michael R. Huston

Counsel of Record

Karl J. Worsham

Addison W. Bennett

Jordan M. Buckwald

Victoria L. Romine

PERKINS COIE LLP

2525 E. Camelback Road

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

Statutory and Rule Provisions Appendix

TABLE OF CONTENTS

28 U.S.C. § 2107 ................................................................. 1a

Federal Rule of Appellate Procedure 4 .......................... 3a

28 U.S.C. § 2107

Time for appeal to court of appeals

…

(a) Except as otherwise provided in this section, no appeal

shall bring any judgment, order or decree in an

action, suit or proceeding of a civil nature before a court

of appeals for review unless notice of appeal is filed,

within thirty days after the entry of such judgment, order or decree.

(b) In any such action, suit, or proceeding, the time as to all

parties shall be 60 days from such entry if one of the parties is-(1) the United States;

(2) a United States agency;

(3) a United States officer or employee sued in an offi-

cial capacity; or

(4) a current or former United States officer or em-

ployee sued in an individual capacity for an act or

omission occurring in connection with duties performed on behalf of the United States, including all

instances in which the United States represents that

officer or employee when the judgment, order, or

decree is entered or files the appeal for that officer

or employee.

30 days after the expiration of the time otherwise set for

bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the

district court finds--

(1) that a party entitled to notice of the entry of a judg-

ment or order did not receive such notice from the

clerk or any party within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180 days

after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the

time for appeal for a period of 14 days from the date of

entry of the order reopening the time for appeal.

(d) This section shall not apply to bankruptcy matters

or other proceedings under Title 11.

***

Federal Rule of Appellate Procedure 4

Appeal as of Right—When Taken

…

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules

4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk

within 30 days after entry of the judgment or order

appealed from.

(B) The notice of appeal may be filed by any party

within 60 days after entry of the judgment or order

appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an

official capacity; or

(iv) a current or former United States officer or employee sued in an individual capacity for an act or

omission occurring in connection with duties performed on the United States’ behalf—including all

instances in which the United States represents that

person when the judgment or order is entered or

files the appeal for that person.

application for a writ of error coram nobis is an appeal

in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal

filed after the court announces a decision or order—but

before the entry of the judgment or order—is treated as

filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of

appeal, any other party may file a notice of appeal within

14 days after the date when the first notice was filed, or

within the time otherwise prescribed by this Rule 4(a),

whichever period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those

rules—the time to file an appeal runs for all parties

from the entry of the order disposing of the last such

remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion

would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district

court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed

within the time allowed for filing a motion under

Rule 59.

(B)(i) If a party files a notice of appeal after the court

announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order,

in whole or in part, when the order disposing of the last

such remaining motion is entered.

(ii) A party intending to challenge an order disposing

of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion,

must file a notice of appeal, or an amended notice of

appeal—in compliance with Rule 3(c)—within the

time prescribed by this Rule measured from the entry of the order disposing of the last such remaining

motion.

(iii) No additional fee is required to file an amended

notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the

time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or

during the 30 days after the time prescribed by this

Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time

prescribed in Rule 4(a)(1) or (3) may be ex parte unless

the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must

be given to the other parties in accordance with local

rules.

30 days after the prescribed time or 14 days after the

date when the order granting the motion is entered,

whichever is later.

(6) Reopening the Time to File an Appeal. 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 court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77

(d) of the entry of the judgment or order sought to be

appealed within 21 days after entry;

(B) 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 Federal Rule of

Civil Procedure 77 (d) of the entry, whichever is earlier; and

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this

Rule 4(a):

(i) if Federal Rule of Civil Procedure 58 (a) does not

require a separate document, when the judgment or

order is entered in the civil docket under Federal

Rule of Civil Procedure 79 (a); or

(ii) if Federal Rule of Civil Procedure 58 (a) requires

a separate document, when the judgment or order is

entered in the civil docket under Federal Rule of

Civil Procedure 79(a) and when the earlier of these

events occurs:

• the judgment or order is set forth on a separate

document, or

• 150 days have run from entry of the judgment or

order in the civil docket under Federal Rule of

Civil Procedure 79 (a).

(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of

Civil Procedure 58 (a) does not affect the validity of an

appeal from that judgment or order.

(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant’s notice of appeal

must be filed in the district court within 14 days after

the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government’s notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within

30 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any defendant.

(2) Filing Before Entry of Judgment. A notice of appeal

filed after the court announces a decision, sentence, or

order—but before the entry of the judgment or order—

is treated as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal.

(A) If a defendant timely makes any of the following

motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the

order disposing of the last such remaining motion, or

within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:

(i) for judgment of acquittal under Rule 29;

(ii) for a new trial under Rule 33, but if based on

newly discovered evidence, only if the motion is

made no later than 14 days after the entry of the

judgment; or

(iii) for arrest of judgment under Rule 34.

(B) A notice of appeal filed after the court announces

a decision, sentence, or order—but before it disposes

of any of the motions referred to in Rule 4(b)(3)(A)—

becomes effective upon the later of the following:

(i) the entry of the order disposing of the last such

remaining motion; or

(ii) the entry of the judgment of conviction.

amendment—to appeal from an order disposing of any

of the motions referred to in Rule 4(b)(3)(A).

(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may—

before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal

for a period not to exceed 30 days from the expiration of

the time otherwise prescribed by this Rule 4(b).

(5) Jurisdiction. The filing of a notice of appeal under

this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion

under 35(a) affect the validity of a notice of appeal filed

before entry of the order disposing of the motion. The

filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice

of appeal from a judgment of conviction.

(6) Entry Defined. A judgment or order is entered for

purposes of this Rule 4(b) when it is entered on the criminal docket.

(1) If an institution has a system designed for legal mail,

an inmate confined there must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a

notice of appeal in either a civil or a criminal case, the

notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and:

(A) it is accompanied by:

10a

(i) a declaration in compliance with 28 U.S.C. § 1746

—or a notarized statement—setting out the date of

deposit and stating that first-class postage is being

prepaid; or

(ii) evidence (such as a postmark or date stamp)

showing that the notice was so deposited and that

postage was prepaid; or

(B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).

(2) If an inmate files the first notice of appeal in a civil

case under this Rule 4(c), the 14-day period provided in

Rule 4(a)(3) for another party to file a notice of appeal

runs from the date when the district court dockets the

first notice.

(3) When a defendant in a criminal case files a notice of

appeal under this Rule 4(c), the 30-day period for the

government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the

district court’s docketing of the defendant’s notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a notice of

appeal in either a civil or a criminal case is mistakenly filed

in the court of appeals, the clerk of that court must note

on the notice the date when it was received and send it to

the district clerk. The notice is then considered filed in the

district court on the date so noted.

***

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.