Most practitioners are likely happy to have limited familiarity with Rule 4(a)(6) of the Federal Rules of Appellate Procedure. The Rule allows the district court, in its discretion, to reopen for 14 days a party’s time to file a notice of appeal to the circuit court when that party has missed its original 30-day deadline to notice an appeal. The district court can do this only if three 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

(C) the court finds that no party would be prejudiced.

Last month, the Fourth Circuit in Shuler v. Orangeburg County Sheriff’s Department, held that “receive notice” under subsection (A) means that the party must have received “actual notice.” Despite the Rule’s reference to Federal Rule of Civil Procedure 77(d), which addresses requirements for service of an order, the Court ruled that a party who did not have actual notice of the order could still satisfy that first condition for a successful Rule 4(a)(6) motion even if the order had been properly served under Federal Rule of Civil Procedure 77(d). Thus, in Shuler, the pro se plaintiff (who was also apparently a lawyer) met the requirement of having not received notice when the order had been served correctly under Federal Rule of Civil Procedure 77(d), but was returned to the court as undeliverable because the plaintiff had not kept the district court apprised of her current address. The Fourth Circuit now joins the Second, Seventh, and Ninth Circuits in this interpretation of Rule 4(a)(6)(A) of the Federal Rules of Appellate Procedure.

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