Important rule for the filing of notices of appeal in federal court

The rules of appellate procedure may not be exciting, but they are important. You have to follow them. Not following them can have important consequences. Consider this case.

The case is Hampton v. McDonough, a summary order issued on May 7. Plaintiff sued the Department of Veterans Affairs for employment discrimination. The jury ruled against him and entered a verdict for the Department. Judgment entered on February 2, 2023. Plaintiff then did two things. First, he timely filed a post-trial motion on February 27, 2023. Then, on March 7, 2023, he pro se filed a notice of appeal from the judgment entered on February 2. The district court ruled on -- and rejected plaintiff's post-trial motion -- on April 28, 2023. But plaintiff never filed a notice of appeal from the April 28, 2023 order. 

Without a notice of appeal from the April 28, 2023 order, what issues are legitimately before the Court of Appeals? Was it enough for plaintiff to file a notice of appeal on March 7, 2023? Does that filing give the Second Circuit jurisdiction to rule upon the trial court's April 28, 2023 decision denying the post-trial motions? The issue is crystalized by this fact: plaintiff only wants to appeal from the April 28, 2023 order, not the verdict itself, which the only notice of appeal in this case makes reference to.

The Court of Appeals has no jurisdiction to resolve this appeal because plaintiff did not file a notice of appeal from the April 28, 2023 ruling. Under the Federal Rules of Appellate Procedure, plaintiff had to file another notice of of appeal -- or an amended notice of appeal -- after the trial court issued the April 28, 2023 decision. That's Fed. R. App. P 4(a)(4)(A), if you care enough to look it up, but you probably won't.

Plaintiff seeks equitable relief in asking the Court of Appeals (Jacobs, Menashi and Nardini) to resolve the appeal anyway, in part because he was pro se during the initial stage of the appellate process. But, the Second Circuit says, there are no equitable reasons here. The Court writes:

Although Hampton was pro se when he filed his March 7 notice of appeal of the February 2 judgment, he had retained appellate counsel as of May 6. His counsel had until late June 2023 (60 days after the entry of the April 28 order denying his post-trial motions, see Fed. R. App. P. 4(a)(1)(B)) either to file a new notice of appeal of the April 28 order or to amend his existing notice of appeal. But Hampton’s appellate counsel did neither, and counsel’s failure to comply with the Rules cannot be attributed to, or excused by, Hampton’s earlier pro se status.

This is unpleasant to read. The Court of Appeals is saying that plaintiff's appellate lawyer failed to file the notice of appeal from the April 28, 2023 order. No lawyer wants to read something like this, be it the lawyer who failed to make the proper filing, or the lawyers who are reading the decision. The moral of the story is: when in doubt, file an amended notice of appeal. It will not cost you anything if the first notice of appeal has already been validly filed.