UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1292

MICHAEL BRACEY,

Plaintiff - Appellant,

v.

LANCASTER FOODS LLC,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:17-cv-01826-RDB)

Argued: October 29, 2020 Decided: December 16, 2020

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed in part and dismissed in part by unpublished opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer and Judge Diaz joined.

ARGUED: Arinderjit (AJ) Dhali, DHALI PLLC, Washington, D.C., for Appellant. Julia Kim Whitelock, GORDON REES SCULLY MANSUKHANI, LLP, Alexandria, Virginia, for Appellee. ON BRIEF: Brian A. Scotti, GORDON REES SCULLY MANSUKHANI, LLP, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. QUATTLEBAUM, Circuit Judge:

Michael Bracey, a truck driver formerly employed by Lancaster Foods LLC,

contends that the district court erred in compelling arbitration of his employment claims

because he falls within an exception to the Federal Arbitration Act (“FAA”). Bracey,

however, failed to raise this issue to the district court in response to Lancaster’s motion to

dismiss and compel arbitration. Instead, he only argued that the arbitration agreement was

unconscionable. After the district court compelled arbitration, Bracey moved to reconsider,

raising the applicability of the FAA for the first time. After reviewing the arguments of the

parties, we agree with the district court that the arbitration agreement is not unconscionable.

However, for the reasons set forth below, we conclude that we lack jurisdiction to address

Bracey’s remaining arguments. Accordingly, we affirm in part and dismiss in part.

I.

Bracey began working as a truck driver for Lancaster in 2008. After Bracey suffered

an on-the-job injury, he and Lancaster disagreed about the restrictions on his work

activities. Ultimately, Lancaster interpreted Bracey’s position as a resignation, which it

documented in a letter sent to Bracey in July 2015. In December 2015, Bracey filed a claim

with the Equal Employment Opportunity Commission (“EEOC”). In February 2017, the

EEOC notified Bracey of his right to sue, as the agency concluded that there was not

reasonable cause to believe discrimination occurred.

Several months later, Bracey sued Lancaster in Maryland state court, asserting

various employment claims. After removing the case to federal court, Lancaster moved to

2 dismiss and compel arbitration based on the terms of an Alternative Dispute Resolution

Agreement (“ADRA”) that Bracey signed when he was hired. By signing the ADRA,

Bracey consented to arbitration of any employment-related claim and waived all rights he

may otherwise have had to a trial.

Bracey opposed the motion arguing that the ADRA was unconscionable because it

shortened all applicable statutes of limitation to one year. Several days later, although he

had not previously raised this issue, Bracey’s counsel emailed Lancaster’s counsel, asking

Lancaster to “withdraw [its] motion to compel arbitration on the grounds that Lancaster

Foods is not covered by Section 1 of the FAA.” J.A. 746. Bracey’s counsel explained that

Bracey fell within an exemption to the FAA because he was engaged in the movement of

goods in interstate commerce. Bracey’s counsel closed by stating that, if Lancaster refused

to withdraw its motion, he would “very likely file a motion for a surreply” when he returned

from a vacation. J.A. 746.

Lancaster’s reply addressed Bracey’s arguments on unconscionability, but not

Bracey’s counsel’s email or the issue of Section 1 of the FAA. Bracey did not request leave

to file a surreply or otherwise notify the district court of the argument that the FAA may

not apply to the ADRA.

On March 30, 2018, the district court granted Lancaster’s motion to dismiss and

compel arbitration. The court held that the ADRA “was a contract of adhesion and

procedurally unconscionable.” J.A. 74. However, relying on well-settled precedent of this

Court, it found that “the one year limitation is not substantively unconscionable . . . .” J.A.

80.

3 On April 26, 2018, Bracey moved to reconsider, raising for the first time with the

district court the issue of whether Bracey’s employment contract was exempt from the

FAA. Couched as a Rule 60 motion, Bracey claimed that he had newly discovered

evidence, which consisted of travel logs that demonstrated he traveled out of state while

employed as a truck driver for Lancaster. That evidence, he asserts, established that he was

a worker “engaged in foreign and interstate commerce,” and thus exempt from the FAA’s

provisions. See

. Additionally, Bracey argued that Lancaster deliberately

misrepresented the nature of Bracey’s job in its filings.

The following day, Bracey filed a notice of appeal of the March 30, 2018 order.

On March 12, 2019, the district court denied Bracey’s motion to reconsider. Because

it was filed within twenty-eight days of the order granting Lancaster’s motion to dismiss,

the district court analyzed the motion to reconsider under Rule 59(e). The court held that

Bracey’s travel logs were not newly discovered evidence and that Lancaster and its counsel

did not engage in misconduct.

Bracey did not file a new notice of appeal or amend his prior notice of appeal after

the district court denied his motion to reconsider.

II.

Bracey raises three issues on appeal. First, he claims that the ADRA is

unconscionable because it shortens the statute of limitations for any employment related

claims to one year. Second, he contends that he is an interstate truck driver who is exempt

4 from arbitration under the FAA. Finally, he argues that Lancaster Foods engaged in

misconduct in defense of this action.

Prior to addressing the merits of Bracey’s appeal, however, we must satisfy

ourselves that we have jurisdiction over these issues. There is no question about our

jurisdiction to review the district court’s decision concerning the unconscionability of the

ADRA. Bracey filed a timely notice of appeal as to the order dismissing the complaint and

finding the ADRA was not unconscionable. But after the district court denied his motion

to reconsider, Bracey did not file a new notice of appeal or amend his prior notice. And

because Bracey’s second and third issues arise from the denial of his motion to reconsider,

Lancaster contends we do not have jurisdiction over those issues.

A.

“If a party files a notice of appeal after the court announces or enters a judgment”

but before the district court disposes of a timely motion to reconsider, the notice of appeal

becomes effective “when the order disposing of the last [motion to reconsider] is entered.”

Fed. R. App. P. 4(a)(4)(B)(i). However, if a party intends also to challenge the district

court’s ruling on the Rule 59 or Rule 60 motion, he must file a new notice of appeal or

amend the prior notice of appeal. Fed. R. App. P. 4(a)(4)(B)(ii). Our question is whether

Bracey’s failure to do either is a jurisdictional bar to our reaching the merits of the denial

of the motion to reconsider.

Bracey offers three arguments in favor of jurisdiction. First, Bracey contends that

the docketing statement that he submitted is the “functional equivalent” of a new or

amended notice of appeal. In Smith v. Barry, the Supreme Court of the United States

5 instructed courts to liberally construe the requirements of Federal Rule of Appellate

Procedure 3, which outlines the process for filing and serving a notice of appeal as well as

the required contents of a notice of appeal.

(1992). Smith also provides

that a filing—not directly captioned as a notice of appeal—can serve as the “functional

equivalent” of a notice of appeal if it is filed within the applicable time period (i.e., 30 days

from judgment in most cases).

Following that guidance, we have, in prior cases mostly

involving pro se litigants, construed informal briefs or docketing statements as the

“functional equivalent” of a new or amended notice of appeal. See, e.g., Young v. Butler,

(4th Cir. 1996).

The problem with Bracey’s argument is that his docketing statement did not identify

the order denying his motion to reconsider as the order being appealed. More specifically,

he did not include that order where he was to indicate the “[d]ate of entry of order or

judgment appealed.” He did include the date of the ruling on his motion to reconsider—

March 12, 2019—as the “[d]ate order entered disposing of any post-judgment motion.”

But Bracey failed to reference the date of that ruling as an order or judgment being

appealed. Even liberally construing this document, we conclude that it does not adequately

designate the order denying Bracey’s motion to reconsider as “the judgment, order, or part

thereof being appealed.” See Fed. R. App. P. 3(c)(1)(B). Therefore, we cannot construe the

docketing statement as the “functional equivalent” of a new or amended notice of appeal.

Second, Bracey argues that the deadline imposed by Federal Rule of Appellate

Procedure 4(a)(4)(B)(ii) is a mandatory claims-processing rule and not a jurisdictional

requirement. Therefore, Bracey contends that Lancaster forfeited the argument by not

6 objecting to the lack of a second or amended notice of appeal. In Hamer v. Neighborhood

Housing Services of Chicago, the Supreme Court distinguished between jurisdictional

requirements and mandatory claim-processing rules.

(2017). There, the Court

held that a “jurisdictional defect is not subject to waiver or forfeiture and may be raised at

any time in the court of first instance and on direct appeal.” Id. at 17 (internal footnote

omitted). Mandatory claim-processing rules, however, are subject to the doctrines of

waiver and forfeiture. Id. And importantly, the Court clarified that the distinction between

jurisdictional rules and claim-processing rules lies in whether the relevant time prescription

is found in a statute or simply in court rules. Id. at 21 (“Because Rule 4(a)(5)(C), not

§ 2107, limits the length of the extension granted here, the time prescription is not

jurisdictional.”).

Applying Hamer, the new or amended notice of appeal requirement in Federal Rule

of Appellate Procedure 4(a)(4)(B)(ii) is grounded in a jurisdictional statute.

(a) provides, “[e]xcept as otherwise provided in this section, no appeal shall bring

any judgment, order or decree in an action, suit or proceeding of a civil nature before a

court of appeals for review unless notice of appeal is filed, within thirty days after entry of

such judgment, order or decree.” Accordingly, we conclude that the requirement that a new

or amended notice of appeal be filed within thirty days of an order disposing of a motion

to reconsider is jurisdictional. While that requirement is found in Federal Rule of Appellate

Procedure 4(a)(4)(B)(ii), that Rule merely carries § 2107 into practice. See Rochell v. City

of Springdale Police Dep’t,

, 590 (8th Cir. 2019) (concluding that an

issue was not properly before the court because the appellant “did not file a new or amended

7 notice of appeal after the district court denied [a motion to reconsider]” (citing

(a); Fed. R. App. P. 4(a)(4)(B)(ii); Hamer, 138 S. Ct. at 16–17)).

Bracey’s final argument, that “once a federal claim is proper[l]y before this Court,

[he] can raise any argument, at any time, in support of that claim,” Appellant’s Supp. Br.

at 5 (Oct. 6, 2020), lacks merit. Essentially, Bracey argues that because he has contested

the ADRA from the beginning of the case—albeit only on unconscionability grounds—he

can make any argument against the enforceability of the ADRA at any time, including on

appeal. That, of course, would upend our well-established rules of issue preservation,

which we decline to do.

For these reasons, we lack jurisdiction to reach Bracey’s second and third issues on

appeal. Thus, the only issue properly before the Court is Bracey’s argument that the ADRA

is unconscionable.

B.

We now turn to the issue over which we do have jurisdiction: Bracey’s argument

that the ADRA is unconscionable. Based primarily on the provision of the ADRA

shortening the statute of limitations period to one year, Bracey contends the district court

erred in concluding the ADRA was not unconscionable. However, we addressed this issue

in In re Cotton Yarn Antitrust Litigation,

(4th Cir. 2007). There, we upheld

an arbitration agreement with a one-year statute of limitations for a Sherman Act claim,

which generally has a four-year limitations period.

. We held “[a]s a general rule,

statutory limitations periods may be shortened by agreement, so long as the limitations

period is not unreasonably short” and the statute at issue does not prohibit a shortened

8 limitations period.

. In reaching this decision, we explained that “[c]ourts have

frequently found contractual limitations periods of one year (or less) to be reasonable.”

We see nothing in this record that would lead us to a different conclusion. While

Bracey argues that it would be difficult to exhaust his claims before the EEOC prior to

making a demand for arbitration, it is not entirely clear that administrative exhaustion

would even be required when the parties contractually agree to resolve employment

disputes in arbitration. See Fort Bend Cty. v. Davis,

, 1846 (2019) (holding

that “Title VII’s charge-filing instruction is not jurisdictional”). And Bracey has offered no

authority that supports his argument that any difficulty here renders the ADRA

substantively unconscionable. Accordingly, we agree with the district court that the ADRA

is not unconscionable.

III.

For the foregoing reasons, we dismiss this appeal in part and otherwise affirm the

district court’s order granting Lancaster’s motion to dismiss and compel arbitration.

AFFIRMED IN PART AND DISMISSED IN PART

9