Griggs v. Provident Consumer Discount Co.

Per Curiam.

The petition for certiorari questions the validity of a notice of appeal filed after the entry of the District Court’s judgment but while the appellant’s motion to alter or amend that judgment remained pending in the District Court.

*57 The petitioners brought this civil action in the United States District Court for the Eastern District of Pennsylvania, seeking statutory damages for an alleged violation of the Truth in Lending Act, 82 Stat. 146, as amended, 15 U. S. C. § 1601 et seq., and Regulation Z of the Federal Reserve Board, 12 CFR §226.1 et seq. (1982). On December 24, 1980, the District Court granted the petitioners’ motion for summary judgment, finding that the respondent’s disclosure of its security interests in after-acquired property had been inaccurate and misleading. 503 F. Supp. 246. On November 5, 1981, the District Court entered an order pursuant to Federal Rule of Civil Procedure 54(b) directing that a final judgment be entered. On November 12, the respondent filed a timely motion to alter or amend the judgment, pursuant to Federal Rule of Civil Procedure 59. On November 19, while that motion was still pending, the respondent filed a notice of appeal. On November 23, the District Court denied the motion to alter or amend the judgment. Neither the opinion below nor the response to the petition for a writ of certiorari indicates that any further notice of appeal was filed.

The United States Court of Appeals for the Third Circuit accepted jurisdiction of the appeal and reversed the District Court’s judgment. 680 F. 2d 927 (1982). The Court of Appeals explained its decision to take jurisdiction as follows:

“The Griggses urge that this matter is not appealable because Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that ‘[a] notice of appeal filed before the disposition of any of the above motions shall have no effect.’ Appellant did fail to satisfy Rule 4(a)(4) but though a premature notice of appeal is subject to dismissal, we have generally allowed appellant to proceed unless the appellee can show prejudice resulting from the premature filing of the notice. Tose v. First Pennsylvania Bank, N.A., 648 F. 2d 879, 882 n. 2 (3d Cir.), *58 cert. denied, [454] U. S. [893] . . . (1981); Hodge v. Hodge, 507 F. 2d 87, 89 (3d Cir. 1975); accord Williams v. Town of Okoboji, 599 F. 2d 238 (8th Cir. 1979). See also 9 Moore’s Federal Practice ¶ 204.14 (2d ed. 1982). In our case, the Griggses have shown no prejudice by the premature filing of a notice of appeal.” Id., at 929, n. 2.

Because this analysis of Rule 4(a)(4) conflicts with the decisions of other Courts of Appeals1 and is contrary to the language and purposes of the 1979 amendments to the Federal Rules of Appellate Procedure, we grant the petitioners’ request for leave to proceed informa pauperis and their petition for a writ of certiorari, and we reverse.

Even before 1979, it was generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. See, e. g., United States v. Hitchmon, 587 F. 2d 1357 (CA5 1979). Cf. Ruby v. Secretary of United States Navy, 365 F. 2d 385, 389 (CA9 1966) (en banc) (notice of appeal from unappealable order does not divest district court of jurisdiction), cert. denied, 386 U. S. 1011 (1967). Under pre-1979 procedures, a district court lacked jurisdiction to entertain a motion to vacate, alter, or amend a judgment after a notice of appeal was filed. See Hattersley v. Bollt, 512 F. 2d 209 (CA3 1975); Edmond v. *59 Moore-McCormack Lines, 253 F. 2d 143 (CA2 1958). However, if the timing was reversed — if the notice of appeal was filed after the motion to vacate, alter, or amend the judgment — two seemingly inconsistent conclusions were generally held to follow: the district court retained jurisdiction to decide the motion, but the notice of appeal was nonetheless considered adequate for purposes of beginning the appeals process. E. g., Yaretsky v. Blum, 592 F. 2d 65, 66 (CA2 1979), cert. denied, 450 U. S. 925 (1981); Williams v. Town of Okoboji, 599 F. 2d 238 (CA8 1979); Alexander v. Aero Lodge No. 735, 565 F. 2d 1364, 1371 (CA6 1977), cert. denied, 436 U. S. 946 (1978); Dougherty v. Harper’s Magazine Co., 537 F. 2d 758, 762 (CA3 1976); Stokes v. Peyton’s Inc., 508 F. 2d 1287 (CA5 1975); Song Jook Suh v. Rosenberg, 437 F. 2d 1098 (CA9 1971). Cf. Foman v. Davis, 371 U. S. 178 (1962). But see Century Laminating, Ltd. v. Montgomery, 595 F. 2d 563 (CA10), cert. dism’d, 444 U. S. 987 (1979). The reason this theoretical inconsistency was tolerable in practice was that the district courts did not automatically inform the courts of appeals when a notice of appeal had been filed, and there was therefore little danger a district court and a court of appeals would be simultaneously analyzing the same judgment.

In 1979, the Rules were amended to clarify both the litigants’ timetable and the courts’ respective jurisdictions. The new requirement that a district court “transmit forthwith” any valid notice of appeal to the court of appeals advanced the time when that court could begin processing an appeal. Fed. Rule App. Proc. 3(d). At the same time, in order to prevent unnecessary appellate review, the district court was given express authority to entertain a timely motion to alter or amend the judgment under Rule 59, even after a notice of appeal had been filed. Fed. Rule App. Proc. 4(a)(4). If these had been the only changes, the theoretical inconsistency noted above would have suddenly taken on practical significance. A broad class of situations would *60 have been created in which district courts and courts of appeals would both have had the power to modify the same judgment. The 1979 amendments avoided that potential conflict by depriving the courts of appeals of jurisdiction in such situations.

New Rule 4(a)(4) states:2 *61 Professor Moore has aptly described the post-1979 effect of a Rule 59 motion on a previously filed notice of appeal: “The appeal simply self-destructs.” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶204.12[1], p. 4-65, n. 17 (1982). Moreover, a subsequent notice of appeal is also ineffective if it is filed while a timely Rule 59 motion is still pending. See 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure §3950 (1982 Supp.).

*60 “If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party . . . under Rule 59 ... , the time for appeal for all parties shall run from the entry of the order denying . . . such motion. A notice of appeal filed before the disposition of [such motion] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.”

*61 The United States Court of Appeals for the Third Circuit has taken the position that, notwithstanding the 1979 amendments, it retains discretion under Federal Rule of Appellate Procedure 2 to waive the conceded defects in a premature notice of appeal. Tose v. First Pennsylvania Bank, N.A., 648 F. 2d 879, 882, n. 2, cert. denied, 454 U. S. 893 (1981). We disagree. The notice of appeal filed in this case on November 19, 1980, was not merely defective; it was a nullity. Under the plain language of the current Rule, a premature notice of appeal “shall have no effect”; a new notice of appeal “must be filed.” In short, it is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act. It is well settled that the requirement of a timely notice of appeal is “ ‘mandatory and jurisdictional.’” Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257, 264 (1978).3

The motion of petitioners for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

See United States v. Valdosta-Lowndes County Hospital Authority, 668 F. 2d 1177, 1178, n. 2 (CA11 1982); Beam v. Youens, 664 F. 2d 1275 (CA5 1982); Williams v. Bolger, 633 F. 2d 410 (CA5 1980); Century Laminating, Ltd. v. Montgomery, 595 F. 2d 563 (CA10), cert. dism’d, 444 U. S. 987 (1979). Cf. United States v. Jones, 669 F. 2d 559, 561 (CA8 1982) (dictum); Calhoun v. United States, 647 F. 2d 6, 10 (CA9 1981); United States v. Moore, 616 F. 2d 1030, 1032, n. 2 (CA7) (dictum), cert. denied, 446 U. S. 987 (1980). But cf. Laser Alignment, Inc. v. Warlick, 32 Fed. Rules Serv. 2d 776 (CA4 1981).

The Advisory Committee on Appellate Rules explained the modification as follows:

“The proposed amendment would make it clear that after the filing of the specified post trial motions, a notice of appeal should await disposition of the motion. . . . [I]t would be undesirable to proceed with the appeal while the district court has before it a motion the granting of which would vacate or alter the judgment appealed from. . . . Under the present rule, since docketing may not take place until the record is transmitted, premature filing is much less likely to involve waste effort. See, e. g., Stokes v. Peyton’s Inc., 508 F. 2d 1287 (5th Cir. 1975). Further, since a notice of appeal filed before the disposition of a post trial motion, even if it were treated as valid for purposes of jurisdiction, would not embrace objections to the denial of the motion, it is obviously preferable to postpone the notice of appeal until after the motion is disposed of.

“The present rule [pre-1979], since it provides for the ‘termination’ of the ‘running’ of the appeal time, is ambiguous in its application to a notice of appeal filed prior to a post trial motion filed within the 10 day limit. The amendment would make it clear that in such circumstances the appellant should not proceed with the appeal during pendency of the motion but should file a new notice of appeal after the motion is disposed of.” Notes of Advisory Committee on Appellate Rules, 28 U. S. C. App., p. 146 (1976 ed., Supp V).

Rule 2 does not purport to vest unlimited discretion in the court of appeals. That Rule explicitly states that the discretion it authorizes is limited by Rule 26(b), which prohibits courts of appeals from enlarging the time for filing a notice of appeal.