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. 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. 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).
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).
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), https://www.uscourts.gov/rules-policies/archives/meeting-minutes/advisory-committee-rules-appellate-procedure-april-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.
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), https://www.uscourts.gov/rules-policies/archives/meeting-minutes/advisory-committee-rules-appellate-procedure-april-1991.
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).