Federal Rule of Appellate Procedure 4(a)(2) provides that a
"notice of appeal filed after the announcement of a decision or
order but before the entry of the judgment or order shall be
treated as filed after such entry and on the day thereof."
On January 26, 1989, the District Court announced from the bench
that it intended to grant a motion for summary judgment filed by
respondent Investors Mortgage Insurance Co. (IMI) in a suit brought
by petitioner FirsTier Mortgage Co. against IMI, requested that the
parties file proposed findings of fact and conclusions of law to
support that ruling, and clarified that its ruling extinguished all
of FirsTier's claims. FirsTier filed a notice of appeal on February
8, identifying the January 26 ruling as the decision from which it
was appealing, but the District Court did not enter judgment until
March 3. The Court of Appeals dismissed the appeal on the ground
that the January 26 decision was not a final decision appealable
under 28 U.S.C. § 1291.
Held: Rule 4(a)(2) permits a notice of appeal filed
from a nonfinal decision to serve as an effective notice of appeal
from a subsequently entered final judgment when a district court
announces a decision that would be appealable if immediately
followed by the entry of judgment. In such an instance, it would be
reasonable for a litigant to believe that the decision is final,
and permitting a notice of appeal to become effective when judgment
is entered would not catch the appellee by surprise. This
interpretation of the Rule best comports with its drafters' intent.
And it does not contravene Rule 1(b)'s prohibition on construing
the appellate rules to extend or limit courts' jurisdiction as
established by law. Even if a bench ruling were not final under
§ 1291, Rule 4(a)(2) would not render that ruling appealable
in contravention of § 1291. Rather, it treats the premature
notice as a notice filed from the subsequently entered judgment.
The instant bench ruling is a "decision" under the Rule. It
purported to dispose of all of FirsTier's claims, and would have
been final under § 1291 had the judge set forth his judgment
immediately and the clerk entered the judgment on the docket.
FirsTier's confusion as to the litigation's status was
understandable, and no unfairness to IMI results from allowing the
appeal to go forward. Pp.
498 U. S.
272-277.
Reversed and remanded.
Page 498 U. S. 270
MARSHALL, J., delivered the opinion for a unanimous Court.
KENNEDY, J., filed a concurring opinion.
Justice MARSHALL delivered the opinion of the Court.
Federal Rule of Appellate Procedure 4(a)(2) provides that a
"notice of appeal filed after the announcement of a decision or
order but before the entry of the judgment or order shall be
treated as filed after such entry and on the day thereof."
In this case, petitioner filed its notice of appeal after the
District Court announced from the bench that it intended to grant
summary judgment for respondent, but before entry of judgment and
before the parties had, at the court's request, submitted proposed
findings of fact and conclusions of law. The question presented is
whether the bench ruling is a "decision" under Rule 4(a)(2). We
hold that it is.
I
Respondent, Investors Mortgage Insurance Co. (IMI), issued eight
insurance policies to petitioner, FirsTier Mortgage Co. (FirsTier).
The parties intended these policies to insure FirsTier for the risk
of borrower default on eight real estate loans that FirsTier had
made. After the eight borrowers defaulted, FirsTier submitted
claims on the policies, which IMI refused to pay. Invoking the
District Court's diversity jurisdiction under 28 U.S.C. §
1332, FirsTier filed suit, seeking damages for IMI's alleged breach
of contract and breach of its duty of good faith and fair
dealing.
On January 26, 1989, the District Court held a hearing on IMI's
motion for summary judgment. After hearing argument from counsel,
the District Court announced from the bench that it was granting
IMI's motion. The judge stated
Page 498 U. S. 271
that FirsTier's eight policies had been secured from IMI through
fraud or bad faith, and therefore were void:
"I find that the policies should be, and are, cancelled as void
for want of [
sic] fraud, bad faith. The Court has heard no
evidence in the matter of this hearing to change its mind from
holding that the policies are void."
"Of course, in a case of this kind, the losing party has a right
to appeal. If the Court happens to be wrong, I don't think I am,
but if the Court happens to be wrong, it could be righted by the
Circuit."
"The Court does find that [IMI] relied on the package [of
information furnished by FirsTier] in each of these loans, and the
package was not honest. In fact, it was dishonest. The dishonesty
should and does void the policy."
App. 27. The District Court then requested that IMI submit
proposed findings of fact and conclusions of law to support the
ruling, adding that FirsTier would thereafter be permitted to
submit any objections it might have to IMI's proposed findings:
"The Court will then look at what you submit as your suggestion,
and it is your suggestion only. The Court then will modify, add to
it, delete, and write its own findings of fact and conclusions of
law and judgment in each of these eight policies that we have
talked about."
"
* * * *"
"And if [FirsTier] cares to do so, within five days, you may
file with the Court your objection or suggestion wherein you find
that the suggestions of [IMI] are in error, if you care to do
so."
Ibid. Finally, the District Court clarified that its
ruling extinguished both FirsTier's claim for breach of contract
and FirsTier's claim for breach of the duty of good faith and fair
dealing.
Id. at 28.
Page 498 U. S. 272
FirsTier filed its notice of appeal on February 8, 1989,
identifying the January 26 bench ruling as the decision from which
it was appealing. On March 3, 1989, the District Court issued its
findings of fact and conclusions of law in support of its ruling
that IMI was entitled to summary judgment. In a separate document,
also dated March 3, 1989, the District Court entered judgment.
See Fed.Rule Civ.Proc. 58 (requiring that "[e]very
judgment shall be set forth on a separate document").
After notifying the parties that it was considering dismissing
FirsTier's appeal for lack of jurisdiction, the Court of Appeals
requested that the parties brief two issues: first, whether the
February 8 notice of appeal was filed prematurely, and second,
whether the January 26 bench ruling was a final decision appealable
under 28 U.S.C. § 1291.
See App. to Pet. for Cert.
B-2. The Court of Appeals dismissed the appeal on the ground that
the January 26 decision was not final under § 1291. The court
did not address whether FirsTier's notice of appeal could be
effective as a notice of appeal from the March 3 final judgment
despite the fact that it identified the January 26 ruling as the
ruling appealed from.
See id. at A-2. We granted
certiorari, 494 U.S. 1003 (1990), and now reverse.
II
The issue before us is whether FirsTier's February 8 notice of
appeal is fatally premature. Federal Rule of Appellate Procedure
4(a)(1) requires an appellant to file its notice of appeal "within
30 days after the date of entry of the judgment or order appealed
from."
See also 28 U.S.C. § 2107. In this case,
FirsTier filed its notice of appeal close to a month before entry
of judgment. However, under Federal Rule of Appellate Procedure
4(a)(2), a notice of appeal
"filed after the announcement of a decision or order but before
the entry of the judgment or order shall be treated as filed
after
Page 498 U. S. 273
such entry and on the day thereof. [
Footnote 1]"
Added to the Federal Rules in 1979, Rule 4(a)(2) was intended to
codify a general practice in the courts of appeals of deeming
certain premature notices of appeal effective.
See
Advisory Committee's Note on Fed.Rule App.Proc. 4(a)(2), 28
U.S.C.App., p. 516. The Rule recognizes that, unlike a tardy notice
of appeal, certain premature notices do not prejudice the appellee,
and that the technical defect of prematurity therefore should not
be allowed to extinguish an otherwise proper appeal.
See In re
Grand Jury Impaneled Jan. 21, 1975, 541 F.2d 373, 377 (CA3
1976) (cited with approval in Advisory Committee's Note on Fed.Rule
App.Proc. 4(a)(2),
supra, at 516);
Hodge v.
Hodge, 507 F.2d 87, 89 (CA3 1975) (same).
IMI maintains that the relation forward provision of Rule
4(a)(2) rescues a premature notice of appeal only if such notice is
filed after the announcement of a decision that is "final" within
the meaning of 28 U.S.C. § 1291. [
Footnote 2] IMI further contends that the January 26 bench
ruling did not constitute a final decision. For a ruling to be
final, it must "en[d] the litigation on the merits,"
Catlin v.
United States, 324 U. S. 229,
Page 498 U. S. 274
324 U. S. 233
(1945) (citation omitted), [
Footnote 3] and the judge must "clearly declar[e] his
intention in this respect,"
United States v. F. & M.
Schaefer Brewing Co., 356 U. S. 227,
356 U. S. 232
(1958). IMI contends that the judge did not clearly intend to
terminate the litigation on the merits. Although the judge stated
from the bench his legal conclusions about the case, he also stated
his intention to set forth his rationale in a more detailed and
disciplined fashion at a later date. Moreover, the judge did not
explicitly exclude the possibility that he might change his mind in
the interim.
We find it unnecessary to resolve this question whether the
bench ruling was final. For we believe the Court of Appeals erred
in its threshold determination that a notice of appeal filed from a
bench ruling can only be effective if the bench ruling is itself a
final decision. Rather, we conclude that Rule 4(a)(2) permits a
notice of appeal filed from certain nonfinal decisions to serve as
an effective notice from a subsequently entered final judgment.
[
Footnote 4]
To support its contention that Rule 4(a)(2) cannot permit a
premature notice of appeal from a nonfinal decision, IMI relies on
Federal Rule of Appellate Procedure 1(b). Rule 1(b) provides that
the appellate rules "shall not be construed to extend or limit the
jurisdiction of the courts of appeals as established by law."
According to IMI, construing Rule
Page 498 U. S. 275
4(a)(2) to cure premature notices of appeal from nonfinal
decisions would contravene Rule 1(b) by enlarging appellate
jurisdiction beyond that conferred by 28 U.S.C. § 1291, the
relevant jurisdictional statute.
IMI misinterprets Rule 4(a)(2). Under Rule 4(a)(2), a premature
notice of appeal does not ripen until judgment is entered. Once
judgment is entered, the Rule treats the premature notice of appeal
"as filed after such entry." Thus, even if a bench ruling in a
given case were not "final" within the meaning of § 1291, Rule
4(a)(2) would not render that ruling appealable in contravention of
§ 1291. Rather, it permits a premature notice of appeal from
that bench ruling to relate forward to judgment and serve as an
effective notice of appeal
from the final judgment.
In our view, this interpretation of Rule 4(a)(2) best comports
with its drafters' intent, as cases cited in the Advisory
Committee's Note to Rule 4(a)(2) confirm. For example, in
Ruby
v. Secretary of Navy, 365 F.2d 385 (CA9 1966),
cert.
denied, 386 U.S. 1011 (1967), the appellant filed his notice
of appeal from an order of the District Court that dismissed the
complaint without dismissing the action. The Court of Appeals
determined that the ruling was not a final decision under §
1291, because the ruling left open an opportunity for the appellant
to save his cause of action by amending his complaint. 365 F.2d at
387. Nonetheless, the court ruled that the notice of appeal from
the nonfinal ruling could serve as a notice of appeal from the
subsequently filed final order dismissing the action.
Id.
at 387-389.
The Advisory Committee's Note also cites
Firchau v. Diamond
National Corp., 345 F.2d 269 (CA9 1965), a case relied on by
Ruby. In
Firchau, the District Court dismissed
the appellant's complaint without dismissing the action. The
appellant then filed a notice seeking to appeal from the District
Court's ruling with respect to one of the claims in the complaint.
The Court of Appeals noted that the ruling dismissing the complaint
might not have been appealable, but nonetheless
Page 498 U. S. 276
held that the notice of appeal could be regarded as a notice
from the subsequent final judgment dismissing the case.
See 345 F.2d at 270-271.
Ruby, Firchau, and the
other cases cited by the Advisory Committee [
Footnote 5] suggest that Rule 4(a)(2) was intended
to protect the unskilled litigant who files a notice of appeal from
a decision that he reasonably but mistakenly believes to be a final
judgment, while failing to file a notice of appeal from the actual
final judgment.
This is not to say that Rule 4(a)(2) permits a notice of appeal
from a clearly interlocutory decision -- such as a discovery ruling
or a sanction order under Rule 11 of the Federal Rules of Civil
Procedure -- to serve as a notice of appeal from the final
judgment. A belief that such a decision is a final judgment would
not be reasonable. In our view, Rule 4(a)(2) permits a notice of
appeal from a nonfinal decision to operate as a notice of appeal
from the final judgment only when a district court announces a
decision that would be appealable if immediately followed by the
entry of judgment. In these instances, a litigant's confusion is
understandable, and permitting the notice of appeal to become
effective when judgment is entered does not catch the appellee by
surprise. Little would be accomplished by prohibiting the court of
appeals from reaching the merits of such an appeal.
See
Hodge, 507 F.2d at 89. [
Footnote 6]
Page 498 U. S. 277
Applying this principle to the case at hand, we conclude that
the District Court's January 26 bench ruling was a "decision" for
purposes of Rule 4(a)(2). Even assuming that the January 26 bench
ruling was not final because the District Court could have changed
its mind prior to entry of judgment, the fact remains that the
bench ruling did announce a decision purporting to dispose of all
of FirsTier's claims. Had the judge set forth the judgment
immediately following the bench ruling, and had the clerk entered
the judgment on the docket,
see Fed.Rules Civ.Proc. 58 and
79(a), there is no question that the bench ruling would have been
"final" under § 1291. Under such circumstances, FirsTier's
belief in the finality of the January 26 bench ruling was
reasonable, and its premature February 8 notice therefore should be
treated as an effective notice of appeal from the judgment entered
on March 3. [
Footnote 7]
In reaching our conclusion, we observe that this case presents
precisely the situation contemplated by Rule 4(a)(2)'s drafters.
FirsTier's confusion as to the status of the litigation at the time
it filed its notice of appeal was understandable. By its February 8
notice of appeal, FirsTier clearly sought, albeit inartfully, to
appeal from the judgment that in fact was entered on March 3. No
unfairness to IMI results from allowing the appeal to go
forward.
III
Because the District Court rendered a final judgment on March 3,
and because, by virtue of Rule 4(a)(2), FirsTier's February 8
notice of appeal constituted a timely notice of appeal from that
judgment, the Court of Appeals erred in dismissing FirsTier's
appeal. Accordingly, the judgment of
Page 498 U. S. 278
the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
So ordered.
[
Footnote 1]
Rule 4(a)(2) applies "[e]xcept as provided in (a)(4) of this
Rule." Rule 4(a)(4) states, in pertinent part:
"If a timely motion under the Federal Rules of Civil Procedure
is filed in the district court by any party: (i) for judgment under
Rule SO(b); (ii) under Rule 52(b) to amend or make additional
findings of fact, whether or not an alteration of the judgment
would be required if the motion is granted; (iii) under Rule 59 to
alter or amend the judgment; or (iv) under Rule 59 for a new trial,
the time for appeal for all parties shall run from the entry of the
order denying a new trial or granting or denying any other such
motion. A notice of appeal filed before the disposition of any of
the above motions 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."
[
Footnote 2]
Section 1291 provides that "[t]he courts of appeals . . . shall
have jurisdiction of appeals from all final decisions of the
district courts of the United States."
[
Footnote 3]
An exception to this general principle, not applicable here, is
the "collateral order doctrine," which permits appeals under §
1291 from a small class of rulings that do not end the litigation
on the merits.
See Cohen v. Beneficial Industrial Loan
Corp., 337 U. S. 541,
337 U. S.
545-547 (1949).
[
Footnote 4]
Rule 4(a)(2) refers to a notice of appeal filed "after the
announcement of
a decision or order but before the entry
of
the judgment or order" (emphasis added). Thus, under
the Rule, a premature notice of appeal relates forward to the date
of entry of a final "judgment" only when the ruling designated in
the notice is a "decision" for purposes of the Rule. We define
"decision" with this situation in mind. We offer no view on the
meaning of the term "order" in Rule 4(a)(2) or on the operation of
the Rule when the jurisdiction of the court of appeals is founded
on a statute other than § 1291.
[
Footnote 5]
See In re Grand Jury Impaneled Jan. 21, 1975, 541 F.2d
373 (CA3 1976);
Hodge v. Hodge, 507 F.2d 87 (CA3 1975);
Song Jook Suh v. Rosenberg, 437 F.2d 1098 (CA9 1971).
[
Footnote 6]
Federal Rule of Appellate Procedure 3(c) requires that the
appellant "designate the judgment, order or part thereof appealed
from." As we have recognized, however, Rule 3(c)'s
judgment-designation requirement is to be construed "in light of
all the circumstances."
Torres v. Oakland Scavenger Co.,
487 U. S. 312,
487 U. S. 316
(1988),
see Foman v. Davis, 371 U.
S. 178 (1962). In
Foman, we established that a
notice of appeal that designates a postjudgment motion should be
treated as noting an appeal from the final judgment when the
appellant's intention to appeal the final judgment is sufficiently
"manifest" that the appellee is not misled.
See id. at
371 U. S. 181.
In our view, a notice of appeal from a Rule 4(a)(2) "decision" --
that is, a decision that would be appealable if immediately
followed by the entry of judgment -- sufficiently manifests an
intent to appeal from the final judgment for purposes of Rule
3(c).
[
Footnote 7]
Because FirsTier did not file any of the motions enumerated
under Federal Rule of Appellate Procedure 4(a)(4),
see n.
1,
supra, Rule 4(a)(4) does not render its premature
notice of appeal ineffective.
Justice KENNEDY, concurring.
I concur in the Court's opinion. The Court determines that the
announcement by the trial court, though not necessarily a final
decision within the meaning of 28 U.S.C. § 1291, had
sufficient attributes of finality to be a "decision" under the
saving provision of Rule 4(a)(2) of the Federal Rules of Appellate
Procedure. It is appropriate to talk in terms of finality in the
case before us because "the bench ruling did announce a decision
purporting to dispose of all of FirsTier's claims."
Ante
at ___-___. I would add, however, that the saving provision of Rule
4(a)(2) applies as well to the announcement of an "order," and that
some orders are appealable even though they do not possess
attributes of finality.
See 28 U.S.C. § 1292(a). In
such cases, operation of the saving provision would not be
controlled by whether or not the trial court's announcement was in
the nature of a final judgment.