by Rose Kent*

In all fed­er­al cas­es, a lit­i­gant who wish­es to appeal the deci­sion of a dis­trict court must file a notice of appeal with that dis­trict court.1 The dead­lines for fil­ing a notice of appeal are pre­scribed by Fed­er­al Rule of Appel­late Pro­ce­dure 4 (“Rule 4”), and the Supreme Court has held that these dead­lines are “manda­to­ry and juris­dic­tion­al” in nature.2 Any lit­i­gant who fails to file a time­ly notice thus los­es their oppor­tu­ni­ty to pur­sue an appeal. As such, while the notice of appeal is a “sim­ple, one-page doc­u­ment,”3 its time­ly or untime­ly fil­ing has sub­stan­tial con­se­quences for the litigant.

Incar­cer­at­ed lit­i­gants who per­son­al­ly file notices of appeal from prison face sig­nif­i­cant obsta­cles to ensur­ing the time­li­ness of their fil­ings.4 These lit­i­gants can­not per­son­al­ly deliv­er a notice to the dis­trict court or call the court to ver­i­fy its receipt.5 They must rely instead on the prison mail sys­tem, which may expe­ri­ence delays in the pro­cess­ing of inmate mail.[6] As a result, a notice of appeal that is deposit­ed in a prison mail sys­tem well before the fil­ing dead­line may not be received by the dis­trict court until after the dead­line has passed. This was the sit­u­a­tion faced by a pro se pris­on­er in Hous­ton v. Lack.[7] While incar­cer­at­ed in a Ten­nessee prison, Pren­tiss Hous­ton draft­ed a notice of appeal and deliv­ered it to prison mail­ing author­i­ties three days before the fil­ing dead­line.8 How­ev­er, his notice was not marked “filed” by the dis­trict court until one day after the dead­line passed.9 Rec­og­niz­ing both the prisoner’s rea­son­able efforts to effect a time­ly fil­ing and the harsh con­se­quences of find­ing a notice of appeal untime­ly, the Court cre­at­ed the “prison mail­box rule” and held that the notice was time­ly filed.10 Under this rule, an incar­cer­at­ed person’s notice of appeal is con­sid­ered “filed” on the date that it is deposit­ed in the prison mail sys­tem, rather than the date it is actu­al­ly received by the dis­trict court.11

Fol­low­ing the Hous­ton deci­sion, the Advi­so­ry Com­mit­tee cod­i­fied the prison mail­box rule in Fed­er­al Rule of Appel­late Pro­ce­dure 4(c).12 While Rule 4(c) has been amend­ed mul­ti­ple times over the near­ly three decades since its pro­mul­ga­tion, the exact scope of the Rule remains unclear. Specif­i­cal­ly, cir­cuit courts remain divid­ed about whether the Rule is exclu­sive to pro se pris­on­ers – such as the lit­i­gant in Hous­ton – or whether its ben­e­fit may be afford­ed to all pris­on­ers who per­son­al­ly file their notices of appeal through the prison mail sys­tem.13 Ulti­mate­ly, this Con­tri­bu­tion will argue that Rule 4(c) applies to all incar­cer­at­ed lit­i­gants, regard­less of whether they are pro se or rep­re­sent­ed by counsel.


Rule 4(c) states that “[i]f 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 . . . .”14 Absent from this text is any ref­er­ence to whether the Rule applies to inmates who are rep­re­sent­ed by coun­sel, or only to those who are pro­ceed­ing pro se. This absence is note­wor­thy because Rule 4(c) was enact­ed as a direct response to the Court’s deci­sion in Hous­ton v. Lack, and was intend­ed to reflect the hold­ing of that case.15 Even though the advi­so­ry committee’s note to the 1993 amend­ment to Rule 4 says Houston’s hold­ing applied to pro se pris­on­ers, the committee’s meet­ing min­utes also clear­ly indi­cate that the com­mit­tee did not believe Rule 4(c) was lim­it­ed only to pro se appel­lants.16 In Hous­ton, the Court exten­sive­ly dis­cussed the unique­ly dis­ad­van­taged nature of the pro se pris­on­er as one of its moti­va­tions for cre­at­ing the prison mail­box rule.17 The opin­ion made no men­tion of pris­on­ers who are rep­re­sent­ed by coun­sel but nonethe­less file their notices them­selves, and it did not address whether the prison mail­box rule may apply to that group of lit­i­gants. The broad lan­guage of Rule 4(c) in cod­i­fy­ing a rule which ini­tial­ly seemed much more lim­it­ed in scope has thus cre­at­ed a divide among the cir­cuit courts.

Two cir­cuits – the Fourth and Sev­enth – have explic­it­ly held that Rule 4(c) applies to all incar­cer­at­ed lit­i­gants, regard­less of rep­re­sen­ta­tion sta­tus.18 These cir­cuits rea­son that the Rule’s plain text does not lim­it its appli­ca­tion to pro se pris­on­ers, so it should not be inter­pret­ed in an arti­fi­cial­ly nar­row man­ner where its mean­ing is clear.19 By con­trast, the Eighth Cir­cuit has held that the prison mail­box rule may not be applied to a notice of appeal filed by a rep­re­sent­ed pris­on­er, because the hold­ing of Hous­ton only reach­es pro se appel­lants.20 The remain­ing cir­cuits have not addressed this ques­tion in the con­text of Rule 4(c) and notices of appeal, but a gen­er­al con­sen­sus has emerged that the prison mail­box rule does not apply to rep­re­sent­ed pris­on­ers who use the prison mail sys­tem to make oth­er types of fil­ings.21 In Cre­tac­ci v. Call, the most recent of these deci­sions, the Sixth Cir­cuit held that a rep­re­sent­ed pris­on­er who filed a civ­il com­plaint from prison was not enti­tled to the ben­e­fit of the mail­box rule.22 Although the pris­on­er made the fil­ing him­self, his rep­re­sent­ed sta­tus led the court to con­clude that he “[did] not need to use the prison mail sys­tem, and instead relie[d] on coun­sel . . . .”23 How­ev­er, Judge Readler sug­gest­ed in a con­cur­ring opin­ion that the deci­sion may have been dif­fer­ent if the fil­ing at issue was a notice of appeal, as Rule 4(c) “[b]y its plain terms” applies to all inmates, regard­less of rep­re­sen­ta­tion.24

Evi­dent­ly, uncer­tain­ty exists around the appli­ca­tion of the prison mail­box rule to pris­on­ers who are rep­re­sent­ed by coun­sel. In the con­text of notices of appeal, the rule should be applied to all incar­cer­at­ed lit­i­gants. This inter­pre­ta­tion finds sup­port in the plain text of Rule 4(c), the intent of the Rule’s drafters, and the under­ly­ing pur­pose of the prison mail­box rule.


As dis­cussed above, the plain text of Rule 4(c) sup­ports its appli­ca­tion to all pris­on­ers because it makes no dis­tinc­tion between rep­re­sent­ed and pro se lit­i­gants. The Rule’s text refers only to “an inmate con­fined in an insti­tu­tion.”25 When it draft­ed Rule 4(c), the Advi­so­ry Com­mit­tee con­sult­ed with a vari­ety of stake­hold­ers, includ­ing the fed­er­al Bureau of Pris­ons, oth­er fed­er­al agen­cies, state prison offi­cials, and cir­cuit court clerks.26 The Rule that result­ed from this exten­sive process of research and delib­er­a­tion thus reflects the syn­the­sized knowl­edge and judge­ment of many rel­e­vant experts. As such, courts tasked with inter­pret­ing Rule 4(c) should adhere as close­ly as pos­si­ble to the text of the Rule.27 This adher­ence coun­sels in favor of apply­ing the Rule to all inmates, rather than insert­ing a pro se lim­i­ta­tion where none exists in the text.

Fur­ther, the draft­ing and amend­ment his­to­ry of Rule 4(c) indi­cates that the Advi­so­ry Com­mit­tee did not intend for the Rule to exclude rep­re­sent­ed pris­on­ers.28 When Rule 4(c) was pro­mul­gat­ed, the Com­mit­tee not­ed that its lan­guage was sim­i­lar to Supreme Court Rule 29.2, which does not con­tain a pro se lim­i­ta­tion.29 The min­utes of the com­mit­tee meet­ing at which Rule 4(c) was approved reveal that a pri­or draft of the Rule would have lim­it­ed its appli­ca­tion to “per­sons not rep­re­sent­ed by an attor­ney.”30 That lan­guage was omit­ted from the final draft of the Rule in favor of main­tain­ing con­sis­ten­cy with Supreme Court Rule 29.2.31 Because the Com­mit­tee specif­i­cal­ly con­sid­ered and reject­ed a ver­sion of Rule 4(c) that would have applied exclu­sive­ly to pro se pris­on­ers, it is clear that the Rule was intend­ed to apply more broad­ly. Rule 4(c) has also been altered mul­ti­ple times since its cre­ation in 1993, and yet the Advi­so­ry Com­mit­tee has nev­er adopt­ed an amend­ment that would insert the term “pro se” or a syn­onym into its text.32 Because the Com­mit­tee is clear­ly capa­ble of impos­ing lim­its on the scope of the Rule, its fail­ure to intro­duce a pro se lim­i­ta­tion should be tak­en as fur­ther evi­dence that such a lim­i­ta­tion is not intend­ed to be read into the Rule’s text.33

Final­ly, Rule 4(c) was enact­ed to reflect the orig­i­nal prison mail­box rule as artic­u­lat­ed in Hous­ton v. Lack.34 Although some cir­cuits read Hous­ton’s hold­ing as lim­it­ed to pro se pris­on­ers,35 the fun­da­men­tal pur­pose of the prison mail­box rule is best served by apply­ing it to all incar­cer­at­ed peo­ple. The rule’s core pur­pose is to ensure that incar­cer­at­ed lit­i­gants have equal access to the courts.36 While pro se pris­on­ers undoubt­ed­ly face severe obsta­cles in access­ing the courts, rep­re­sent­ed pris­on­ers can have their access sim­i­lar­ly cur­tailed when they are unable to com­mu­ni­cate with their attor­neys, and when their attor­neys make inad­ver­tent mis­takes that pre­vent a time­ly fil­ing.37 There­fore, the inter­est in equal access coun­sels in favor of apply­ing the prison mail­box rule to rep­re­sent­ed pris­on­ers, as well as to those who are pro se.

Addi­tion­al­ly, while the broad inter­pre­ta­tion of Rule 4(c) strength­ens the rep­re­sent­ed prisoner’s access to courts, it does not in any way dimin­ish the access of the pro se pris­on­er. This is because all lit­i­gants who make use of the Rule must deposit their notices of appeal with­in the time­lines pro­vid­ed by Rule 4(a) and 4(b).38 There­fore, just as Rule 4(c) does not give incar­cer­at­ed lit­i­gants an unfair advan­tage over non-incar­cer­at­ed lit­i­gants,39 it also does not give rep­re­sent­ed pris­on­ers an unfair advan­tage over pro se pris­on­ers. Every lit­i­gant must com­plete their notice of appeal with­in the statu­to­ry dead­line; the broad appli­ca­tion of the prison mail­box rule sim­ply ensures that no incar­cer­at­ed per­son who does so is nev­er­the­less barred from appeal for rea­sons beyond their control.


In Hous­ton, the Court rea­soned that an incar­cer­at­ed per­son should not deprived of an appeal where he had done all he rea­son­ably could do under the cir­cum­stances to time­ly file a notice of appeal.40 While the pris­on­er in Hous­ton was act­ing pro se, this prin­ci­ple applies in equal force to rep­re­sent­ed pris­on­ers who file their notices them­selves through the prison mail sys­tem. Because the plain text of Rule 4(c) includes all incar­cer­at­ed lit­i­gants, the Rule’s amend­ment his­to­ry evinces the Advi­so­ry Committee’s inten­tion for it to apply broad­ly, and a broad appli­ca­tion best serves the prison mail­box rule’s core pur­pose of ensur­ing pris­on­ers’ equal access to courts, Rule 4(c) is best inter­pret­ed as apply­ing to all incar­cer­at­ed lit­i­gants, regard­less of whether they are rep­re­sent­ed by counsel.

* Rose Kent is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece arose from the prob­lem pre­sent­ed at the New York City Bar’s 72nd Annu­al Nation­al Moot Court Com­pe­ti­tion. The first ques­tion pre­sent­ed asked in part whether an incar­cer­at­ed per­son who is rep­re­sent­ed by coun­sel is per­mit­ted to ben­e­fit from the prison mail­box rule, as cod­i­fied in Fed­er­al Rule of Appel­late Pro­ce­dure 4(c), when sub­mit­ting a notice of appeal from prison. This Con­tri­bu­tion presents a dis­til­la­tion of argu­ments made by the author on behalf of the incar­cer­at­ed person.

1. Fed. R. App. P. 3(a)(1).

2. Bowles v. Rus­sell, 551 U.S. 205, 209 (2007) (quot­ing Grig­gs v. Prov­i­dent Con­sumer Dis­count Co., 459 U.S. 56, 61 (1982) (per curi­am)) (inter­nal quo­ta­tion marks omitted).

3. Meza v. Wash­ing­ton State Dep’t of Soc. & Health Servs., 683 F.2d 314, 315 (9th Cir. 1982).

4. See Hous­ton v. Lack, 487 U.S. 266, 271 (1988) (dis­cussing obsta­cles faced by pro se pris­on­ers try­ing to time­ly file an appeal).

5. Id.

6. Id.

7. Id. at 268–69.

8. Id. at 268.

9. Id. at 269.

10. Id. at 275–76 (hold­ing that a notice of appeal is filed at the time it is deliv­ered to prison author­i­ties for for­ward­ing to the court clerk).

11. Id.

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

13. Com­pare Unit­ed States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004) (hold­ing that Rule 4(c) applies to all inmates, not just those who are unrep­re­sent­ed), and Unit­ed States v. Moore, 24 F.3d 624, 626 (4th Cir. 1994) (con­clud­ing that Hous­ton gov­erns all notices of appeal filed by pris­on­ers in crim­i­nal cas­es), with Burgs v. John­son Coun­ty, 79 F.3d 701, 702 (8th Cir. 1996) (declin­ing to apply the prison mail­box rule to a notice of appeal filed by a rep­re­sent­ed pris­on­er), and Unit­ed States v. Rodriguez-Aguirre, 30 Fed. Appx. 803, 805 (10th Cir. 2002) (stat­ing that Houston’s hold­ing is lim­it­ed to pro se prisoners).

14. Fed. R. App. P. 4(c)(1).

15. See Fed. R. App. P. 4 advi­so­ry committee’s note to 1993 amendment.

16. Min­utes of the April 17, 1991, Meet­ing of the Advi­so­ry Com­mit­tee on Fed­er­al Rules of Appel­late Pro­ce­dure 26 (1991), [here­inafter Advi­so­ry Com­mit­tee Min­utes] (stat­ing that the rule is not lim­it­ed to pro se appel­lants because the Supreme Court’s rule is also not lim­it­ed in that way).

17. Hous­ton, 487 U.S. at 271 (explain­ing that only pro se pris­on­ers are forced to entrust their notices of appeal to the prison mail sys­tem because they do not have lawyers who can make fil­ings on their behalf).

18. See Craig, 368 F.3d at 740; Moore, 24 F.3d at 626.

19. See, e.g., Craig, 368 F.3d at 740 (“A court ought not pen­cil ‘unrep­re­sent­ed’ or any oth­er word into the text of Rule 4(c), which as writ­ten is nei­ther inco­her­ent nor absurd.”).

20. Burgs, 79 F.3d at 702. Note that the prece­den­tial val­ue of this case may be lim­it­ed. Burgs fails to cite Rule 4(c), which went into effect rough­ly three years before the case was decid­ed. Instead, the opin­ion relies pri­mar­i­ly on Unit­ed States v. Kim­ber­lin, 898 F.2d 1262 (7th Cir. 1990), which held that the prison mail­box rule did not apply to a rep­re­sent­ed pris­on­er. This deci­sion has since been super­seded by Craig, where the Sev­enth Cir­cuit decid­ed that Rule 4(c) applies to all incar­cer­at­ed litigants.

21. See, e.g., Cre­tac­ci v. Call, 988 F.3d 860, 867 (6th Cir. 2021) (prison mail­box rule does not apply to a rep­re­sent­ed pris­on­er fil­ing a civ­il com­plaint); Unit­ed States v. Cami­lo, 686 Fed. Appx. 645, 646 (11th Cir. 2017) (hold­ing same for rep­re­sent­ed pris­on­er fil­ing sen­tenc­ing doc­u­ments); Still­man v. LaMar­que, 319 F.3d 1199, 1201 (9th Cir. 2003) (hold­ing same for a habeas peti­tion); Cousin v. Lens­ing, 310 F.3d 843, 847 (5th Cir. 2002) (same).

22. Cre­tac­ci, 988 F.3d at 867.

23. Id.

24. Id. at 873 (Readler, J., concurring).

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

26. Cather­ine T. Struve, The Fed­er­al Rules of Inmate Appeals, 50 Ariz. St. L.J.247, 278–79 (2018).

27. Cf. Hous­ton, 487 U.S. at 283 (Scalia, J., dis­sent­ing) (“Changes in rules . . . should be effect­ed by the process of amend­ment, not by ad hoc relax­ations by this Court in par­tic­u­lar cas­es.” (quot­ing Thomp­son v. INS, 375 U.S. 384, 390 (1964) (Clark, J., dis­sent­ing))); Cre­tac­ci, 988 F.3d at 872 (Readler, J., con­cur­ring) (“Unlike a pan­el of appel­late judges, the Stand­ing Com­mit­tee may study a pro­posed rule’s impact, hear from inter­est­ed con­stituen­cies, con­sult experts, and then debate whether a rule amend­ment ulti­mate­ly should be adopted.”).

28. See Advi­so­ry Com­mit­tee Min­utes. The inten­tions of the Advi­so­ry Com­mit­tee on Appel­late Rules are of par­tic­u­lar sig­nif­i­cance when eval­u­at­ing the mean­ing of a Rule. This is because it is the Advi­so­ry Com­mit­tee which pri­mar­i­ly con­ducts the work of draft­ing and debat­ing pro­posed rule amend­ments, while the role of the Court is thought to be “essen­tial­ly super­vi­so­ry.” Karen Nel­son Moore, The Supreme Court’s Role in Inter­pret­ing the Fed­er­al Rules of Civ­il Pro­ce­dure, 44 Hast­ings L.J. 1039, 1065 (1993).

29. See Fed. R. App. P. 4 advi­so­ry committee’s note to 1993 amendment.

30. Min­utes of the April 17, 1991, Meet­ing of the Advi­so­ry Com­mit­tee on Fed­er­al Rules of Appel­late Pro­ce­dure 26 (1991),

31. Id.

32. For exam­ple, Rule 4(c) was amend­ed in 1998 to require that incar­cer­at­ed fil­ers use the sys­tem for legal mail, if their insti­tu­tion has one, to be eli­gi­ble for the Rule. See Fed. R. App. P. 4 advi­so­ry committee’s note to 1998 amendment.

33. See Courte­nay Canedy, The Prison Mail­box Rule and Pas­sive­ly Rep­re­sent­ed Pris­on­ers, 16 Geo. Mason L. Rev. 773, 780 (2009) (“[I]t would be improp­er to read a lim­i­ta­tion into a rule that express­ly con­tem­plates restric­tions to its use.”).

34. Fed. R. App. P. 4 advi­so­ry committee’s note to 1993 amendment.

35. See, e.g., Unit­ed States v. Cami­lo, 686 Fed. Appx. 645, 646 (11th Cir. 2017) (“The mail­box rule was not intend­ed to help pris­on­ers with counsel . . .”).

36. See Gar­vey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993) (stat­ing that the prison mail­box rule ensures “time lim­i­ta­tions for fil­ing do not pre­clude the incar­cer­at­ed petitioner’s equal access to the courts”); Lewis v. Rich­mond City Police Dep’t, 947 F.2d 733, 735 (4th Cir. 1991) (not­ing that the rule is “[f]undamentally . . . a rule of equal treat­ment; it seeks to ensure that impris­oned lit­i­gants are not dis­ad­van­taged by delays which oth­er lit­i­gants might read­i­ly overcome.”).

37. See Cre­tac­ci v. Call, 988 F.3d 860, 864–67 (6th Cir. 2021) (deny­ing appli­ca­tion of the prison mail­box rule to an inmate whose attor­ney real­ized he was not admit­ted to prac­tice law in the rel­e­vant dis­trict one day before the statute of lim­i­ta­tions expired).

38. See Fed. R. App. P. 4(a)-(b) (estab­lish­ing fil­ing dead­lines for notices of appeal in civ­il and crim­i­nal cases).

39. See Unit­ed States v. Moore, 24 F.3d 624, 625 (4th Cir. 1994) (find­ing that the prison mail­box rule “in no way abridges the rights of non-incar­cer­at­ed appellants.”).

40. Hous­ton v. Lack, 487 U.S. 266, 270 (1988) (not­ing that peti­tion­er deliv­ered his notice of appeal to prison author­i­ties for for­ward­ing to the dis­trict court three days before the fil­ing deadline).