USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 1 of 21

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6778

MELODIE SHULER,

Plaintiff - Appellant,

v.

ORANGEBURG COUNTY SHERIFF’S DEPARTMENT; SHERIFF LEROY RAVENELL, in his individual and official capacity; CAPTAIN ANTONIA TURKVANT, in her individual and official capacity; CHIEF KENNETH KINSEY, in his individual and official capacity; CAPTAIN LACREA JENKINS, in his individual and official capacity; LIEUTENANT COYLER, in his individual and official capacity; SERGEANT ALLEN HUNTER, in his individual and official capacity; FRANKLIN ASHLEY WILLIAMS, in his individual and official capacity as a deputy sheriff of Orangeburg Sheriff’s Office; MICHAEL LAWRENCE, in his individual and official capacity as a deputy sheriff of Orangeburg Sheriff’s Office; JOHN STUKE, in his individual and official capacity as a deputy sheriff of Orangeburg Sheriff’s Office; DEREK HOWELL, in his individual and official capacity as a deputy sheriff of Orangeburg Sheriff’s Office; ANDRE BRISBON, in his individual and official capacity as a deputy sheriff of Orangeburg Sheriff’s Office; CHRIS POWELL, in his individual and official capacity as a deputy sheriff of Orangeburg Sheriff’s Office,

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Mary G. Lewis, District Judge. (5:19-cv-00088-MGL)

Argued: March 7, 2023 Decided: June 23, 2023

Before GREGORY, Chief Judge, WYNN, and DIAZ, Circuit Judges. USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 2 of 21

Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Diaz joined.

ARGUED: David Mitchell Parker, HUNTON ANDREWS KURTH, LLP, Richmond, Virginia, for Appellant. Andrew Lindemann, LINDEMANN LAW FIRM, P.A., Columbia, South Carolina, for Appellees. ON BRIEF: Norma A.T. Jeff, NESS & JEFF, LLC, Bamberg, South Carolina, for Appellees.

2 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 3 of 21

GREGORY, Chief Judge:

Melodie Shuler, an attorney, filed a civil rights action against two Orangeburg

County, South Carolina sheriff’s deputies (collectively, the “defendants”). As a pro se

plaintiff, Shuler received repeated notice of the requirement to immediately inform the

court of any change in her address. After Shuler failed to provide an updated address, she

did not receive the magistrate judge’s Report and Recommendation filed in her case, or the

district court’s order adopting the Report and Recommendation and dismissing her case on

summary judgment. Accordingly, she missed deadlines to file objections to the Report and

Recommendation and to note an appeal of the district court’s summary judgment order.

After the defendants moved to dismiss Shuler’s appeal to this Court as untimely, the

district court granted Shuler’s motion to reopen the time to note an appeal to this Court,

giving her fourteen days to do so. Yet, by the time Shuler re-filed her notice of appeal as

permitted by the district court below, her appeal was already pending in this Court. To

ensure that we have jurisdiction to consider Shuler’s appeal, we asked the parties to address

“[w]hether [Shuler] received notice of the entry of the judgment under Fed. R. Civ. P. 77(d)

more than 21 days after entry such that the district court had the authority to reopen the

appeal period under Fed. R. App. P. 4(a)(6).” ECF No. 22 at 2. Accordingly, in this appeal,

we address what it means to “receive notice” for purposes of a Federal Rule of Appellate

Procedure 4(a)(6) motion to reopen the time to note an appeal to this Court.

For the reasons that follow, we find that because Shuler did not receive actual notice

of the entry of judgment in her case, the first of Rule 4(a)(6)’s three statutory requirements

for reopening the time for appeal has been met. We find that the remaining requirements

3 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 4 of 21

of Rule 4(a)(6) have been satisfied as well, but vacate the decision below and remand the

case to the district court to consider whether the circumstances presented here warrant the

exercise of discretion to reopen the time for Shuler’s appeal.

I.

On January 9, 2016, Shuler was arrested for third-degree assault and battery by two

Orangeburg, South Carolina sheriff’s deputies. She was tried in absentia and found guilty

on April 5, 2016. On January 11, 2019, Shuler filed a pro se civil rights action 1 against the

Orangeburg deputies who arrested her and several others, 2 alleging federal and state causes

of action arising out of her arrest. Although Shuler filed her complaint pro se, she informed

the court that she was a lawyer, but not a member of the South Carolina Bar. The district

court treated her as any other pro se plaintiff, and as such, she received the required notices

and detailed guidance on how to proceed with her case typically provided to pro se

1 The magistrate judge deciphered a jumbled and lengthy complaint that included several claims against multiple groups of defendants. The magistrate judge divided Shuler’s claims into six distinct complaints, assigning each complaint a separate case number. The present case was assigned the case number under which her complaint was initially filed. See generally Shuler v. Orangeburg Cnty. Sheriff’s Dep’t., No. 5:19-cv-88- MGL (D.S.C.). 2 The magistrate judge issued a separate Report and Recommendation on July 8, 2019 (the “July 2019 Report”) recommending that the Orangeburg Sheriff’s Department and ten other individual defendants named in Shuler’s complaint be summarily dismissed from the matter. J.A. 112. Shuler filed objections to the Report on July 29, 2019. The July 2019 Report was still pending when the magistrate judge issued the March 2020 Report, which pertained only to the deputies who arrested Shuler—the only defendants the magistrate judge recommended remain in the action. 4 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 5 of 21

plaintiffs. Relevant here, several orders entered by the court directed Shuler’s attention to

the following notice:

You are ordered to always keep the Clerk of Court advised in writing . . . if your address changes for any reason, so as to assure that orders and other matters that specify deadlines for you to meet will be received by you. If, as a result of your failure to comply with this order, you fail to meet a deadline set by this court, your case may be dismissed for violating this order. Therefore, if you have a change of address before this case is ended, you must comply with this order by immediately advising the Clerk of Court in writing of such change of address and providing the court with the docket number of all pending cases you have filed with the court. Your failure to do so will not be excused by the court.

J.A. 70, 77, 81, 84–85, 89 (emphasis in original).

Shuler’s case was referred to a federal magistrate judge who, on March 11, 2020,

filed a Report and Recommendation (the “March 2020 Report”) on a motion for summary

judgment filed by the defendants and a cross-motion for summary judgment filed by

Shuler. The magistrate judge recommended that the district court grant the defendants’

motion and deny Shuler’s because her federal claims were either barred by the applicable

statute of limitations or failed as a matter of law. The magistrate judge separately denied

Shuler’s motion to amend her complaint as both untimely and futile.

The March 2020 Report included notice of Shuler’s right to file specific written

objections with the district court within “fourteen (14) days of the date of service,” and

warned that “[i]n the absence of a timely filed objection, a district court need not conduct

a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face

of the record in order to accept the recommendation.’” J.A. 120 (quoting Diamond v.

Colonial Life & Acc. Ins. Co.,

(4th Cir. 2005)). Further, in bold print,

5 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 6 of 21

the notice stated that “[f]ailure to timely file specific written objections to this Report and

Recommendation will result in waiver of the right to appeal from a judgment of the District

Court based upon such Recommendation.” J.A. 120.

The clerk’s office mailed a copy of the March 2020 Report to Shuler’s address on

file with the court on March 12, 2020. On March 24, 2020, the post office returned Shuler’s

copy to the court marked “RETURN TO SENDER[.] ATTEMPTED – NOT KNOWN[.]

UNABLE TO FORWARD[.]” J.A. 10, 130. Shuler filed no objections to the March 2020

Report, and on April 22, 2020, the district court issued a final order adopting the Report

and the magistrate judge’s recommendation to grant summary judgment in favor of the

defendants. 3 The clerk mailed copies of the final order and judgment to Shuler on April

23, 2020, and they too were returned to the clerk’s office as undeliverable.

In its order granting summary judgment, the court acknowledged that Schuler’s

copy of the March 2020 Report was returned to the clerk’s office in the mail and, “[a]s

such, Shuler ha[d] neglected to file any objections” to it. J.A. 130. Thus the court,

consistent with its prior warning to Shuler, did not conduct a de novo review of the March

2020 Report. Rather, after a “thorough review of the Report and the record” pursuant to

the clear error standard, the court adopted it and granted the defendants’ motion for

summary judgment.

The court also noted that by failing to object, Shuler had waived

her right to appellate review.

3 At the same time, the district court adopted the recommendations of the July 2019 Report, finding that Shuler’s objections to that Report lacked merit, and dismissing the Sheriff’s Department and the other defendants from the action. J.A. 123–28. 6 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 7 of 21

Shuler had thirty days to note an appeal of the district court’s April 22, 2020

judgment. She mailed a notice of appeal, along with a change of address form, to the

clerk’s office on May 21, 2020, but it was not received and filed by the court until May 26,

2020. On June 4, 2020, the defendants moved this Court to dismiss Shuler’s appeal as

untimely on the ground that she failed to note her appeal “within thirty (30) days ‘after

entry of the judgment or order appealed from’ as required by [Federal] Rule [of Appellate

Procedure] 4(a)(1)(A).” ECF No. 7 at 2. Because the timely filing of a notice of appeal is

a jurisdictional requirement, see Bowles v. Russell,

(2007), the

defendants argued that Shuler’s failure to file until four days after the thirty-day deadline

deprived this Court of jurisdiction to review the district court’s order.

On June 16, 2020, Shuler attempted to file in the district court a motion seeking

additional time to note her appeal. But Shuler miscaptioned the motion with a case number

corresponding to one of her other pending cases. As a result, the motion was docketed in

Case No. 2:19-cv-01013-MGL, Shuler v. North Charleston Police Department, et al.,

where the defendants’ counsel was not counsel of record. The district court did not address

the erroneous captioning and misfiling of the motion until November 12, 2020, when it

entered a text order in Case No. 2:19-cv-01013-MGL, stating:

Pending before the court is Plaintiff’s motion for an extension of time to file an appeal. Although Plaintiff listed the number for this case in the caption of her motion, she listed different defendants than the ones listed in this matter. In fact, from the Court’s review of the motion, it appears Plaintiff meant for it to be filed in another of her cases: 5:19-cv-88-MGL, Shuler v. Orangeburg County Sheriff’s Department et al. Therefore, not later than November 23, 2020, Plaintiff shall file a notice with the Court indicating in which of her cases the motion should have been filed. The Court will construe her failure to do so

7 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 8 of 21

as her agreement that the motion should be filed in 5:19-cv-88-MGL, Shuler v. Orangeburg County Sheriff's Department et al.

J.A. 20. When Shuler failed to respond, her motion was filed on the docket for this case

on November 24, 2020—but backdated to June 16, 2020, the date of its original filing. The

docket entry included the note, “Response to Motion due by 6/30/2020”—a date that had

long since passed. J.A. 162. Notably, a similar text order regarding the misfiling of the

motion was not entered in this case, which by this time was already on appeal to this Court.

The district court nonetheless granted Shuler’s motion as “unopposed” without referencing

these procedural irregularities.

In her motion, Shuler moved the district court to extend the time to note an appeal

under Federal Rule of Appellate Procedure 4(a)(5), for relief from judgment under Federal

Rule of Civil Procedure 60(b)(6), or for relief from Federal Rule of Appellate Procedure

4(a)(6)’s requirements under Federal Rule of Civil Procedure 77(d). Relevant here, she

argued that “the final documents were not mailed [to her] until April 23, 2020,” so she “had

an additional three days added to the deadline, which ma[de] her Notice of Appeal timely”

under Federal Rule of Civil Procedure 6(d) and Federal Rule of Appellate Procedure 26. J.A.

149. She also explained that she had “discovered on or about May 18, 2020 through a

[G]oogle search” that the district court had dismissed her case, and upon that revelation she

“decided to send a change of address with the Notice of Appeal.” J.A. 156. She claimed

that she missed the deadline due to “extraneous independent acts” outside of her control and

“despite her negligence she diligently attempted to timely file her notice of appeal which was

properly mailed but for some unknown reason did not reach the court building on time.” J.A.

8 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 9 of 21

157 (quotations omitted). She maintained that consistent with Rule 4(a)(6)’s requirements,

(1) she did not receive notice under Rule 77(d) of entry of the judgment or order appealed

from within 21 days after entry; (2) her motion was filed within 180 days after the judgment;

and (3) granting the motion would not prejudice the opposing parties.

In a March 11, 2021 order, the district court construed Shuler’s motion as an

unopposed Rule 4(a)(6) motion to reopen the time to appeal the court’s orders adopting the

magistrate judge’s March 2020 and July 2019 Reports. J.A. 10, 164–65. The court then

summarily granted the Rule 4(a)(6) motion without explanation, finding that Shuler had

met its requirements, and gave her fourteen days from the date of the order to refile her

notice of appeal. J.A. 165.

Turning to Shuler’s unopposed Rule 60(b)(6) motion, which it construed as “a

request for additional time to submit objections to” the March 2020 Report, the court stated

it was “inclined to grant” the request. J.A. 165. The court directed Shuler to “file a motion

with the Fourth Circuit Court of Appeals for a limited remand within ten days of the date

of this Order so the Court may allow her to file her objections as to [the March 2020

Report]” in the district court. J.A. 165.

Per the district court’s order, Shuler filed a subsequent notice of appeal with the

district court on March 22, 2021, which addressed both the March 2020 and July 2019

Reports. In a “Request for Remand” filed with this Court on March 19, 2021, Shuler

9 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 10 of 21

requested a limited remand so that the district court could allow her to file objections to the

March 2020 Report. See ECF No. 17 at 1. 4

At the time Shuler re-filed her notice of appeal, her appeal had already been pending

in this Court for several months. On August 2, 2021, “to ensure that [this Court had]

jurisdiction to consider Shuler’s appeal,” we ordered the parties to brief the following issue:

“Whether [Shuler] received notice of the entry of the judgment under Fed. R. Civ. P. 77(d)

more than 21 days after entry such that the district court had the authority to reopen the

appeal period under Fed. R. App. P. 4(a)(6).” ECF No. 22 at 2.

II.

This Court reviews a district court’s grant of a Rule 4(a)(6) motion to reopen the

time for appeal for abuse of discretion. Herman v. Lackey,

(4th Cir.

2009); Graham v. Maryland Dep’t of Corr.,

(4th Cir. 2008).

III.

A.

As a general matter, this Court has jurisdiction over this appeal from a final order

pursuant to

. The defendants, however, contend this Court lacks appellate

jurisdiction because Shuler’s notice of appeal was untimely, and the district court abused

its discretion in granting her motion to reopen the time to note an appeal.

4 This Court has deferred ruling on the motion to remand, see ECF No. 22 at 2, and it is currently pending. 10 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 11 of 21

The record before us reflects that the district court granted summary judgment to

the defendants on April 22, 2020, and that Shuler filed a notice of appeal on May 26, 2020.

Shuler admits that she mailed her notice of appeal “with one day to spare” but due to

“transit and processing time,” the notice was not docketed for several days, rendering it

untimely. Opening Br. at 1. Typically, our inquiry would end here, as the untimeliness of

the notice of appeal would deprive this Court of jurisdiction. See Bowles,

.

But Shuler maintains that she has met the Rule 4(a)(6) requirements for reopening the time

for appeal, and that the district court did not abuse its discretion in granting her motion.

She asserts that although the clerk’s mailing to her last known address effected service

under Civil Rule 77(d), she did not receive actual notice of the entry of the summary

judgment, thereby satisfying the requirement under Rule 4(a)(6)(A). And because she

claims the remaining requirements of Rule 4(a)(6) have been satisfied as well, the district

court properly reopened the appeal period.

B.

Federal Rule of Appellate Procedure 4(a)(6) provides that “[t]he district court may

reopen the time to file an appeal for a period of 14 days after the date when its order to

reopen is entered,” but only if its three conditions are satisfied. Fed. R. App. P. 4(a)(6).

The court must find that (1) “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;” (2) “the motion is filed within 180 days after the judgment 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 (3) “no party would be

11 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 12 of 21

prejudiced,” Fed. R. App. P. 4(a)(6)(A)–(C). The moving party bears the burden of

demonstrating compliance with Appellate Rule 4(a)(6). See Portly-El v. Milyard,

(10th Cir. 2010). More specifically, “Rule 4(a)(6) puts the burden on the

moving party to demonstrate non-receipt” of notice. Nunley v. City of Los Angeles,

(9th Cir. 1995); see also Moment v. Mortel, No. PWG-16-3966,

, at *1 (D. Md. Oct. 18, 2018) (quoting McDaniel v. Moore,

(11th Cir. 2002) (“The burden of proving non-receipt . . . of notice is on the party seeking

to reopen the time for appeal under Rule 4(a)(6).”)). We find that Shuler satisfies each of

Rule 4(a)(6)’s requirements.

1.

By its own terms, Rule 4(a)(6) must be read in conjunction with Federal Rule of

Civil Procedure 77(d), which governs “serving notice” of an order or judgment.

“Immediately after entering an order or judgment, the clerk must serve notice of the entry,

as provided in Rule 5(b).” Fed. R. Civ. P. 77(d)(1). Relevant here, Federal Rule of Civil

Procedure 5(b)(2)(C) provides that “[a] paper is served under this rule by: . . . mailing it to

the person’s last known address—in which event service is complete under mailing.” Fed.

R. Civ. P. 5(b)(2)(C). Rule 77(d) further provides that “[l]ack of notice of the entry does

not affect the time for appeal or relieve—or authorize the court to relieve—a party for

failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate

Procedure (4)(a).” Fed. R. Civ. P. 77(d)(2).

We asked the parties to address the first requirement of Rule 4(a)(6)—whether

Shuler received “notice under Federal Rule of Civil Procedure 77(d) of the entry of the

12 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 13 of 21

judgment or order sought to be appealed within 21 days after entry.” Fed. R. App. P.

4(a)(6)(A). Shuler makes several factual admissions that are relevant to our analysis. In

addition to her admission that her notice of appeal was untimely, she acknowledges that

she did not learn of the court’s judgment from the clerk’s office mailing because she

neglected to inform the court of her new address. Instead, she discovered the district court

had entered summary judgment dismissing her claims via an internet search—with only a

few days remaining to note an appeal. Shuler finally mailed a change-of-address form to

the court along with her untimely notice of appeal. Notwithstanding these admissions,

Shuler maintains that the circumstances here could not have provided “notice” for purposes

of Appellate Rule 4(a)(6)(A) and thus do not prevent her from satisfying the requirements

of the Rule. 5 Specifically, Shuler contends that while the Clerk’s unsuccessful mailing of

the judgment to her prior address effected service under Civil Rule 77(d), it was not receipt

of notice for purposes of Appellate Rule 4(a)(6). We agree.

5 We note that Shuler admits that she first learned of the court’s judgment by conducting an internet search. Although Rule 5(b) lists several ways that “service” of a “paper” may be made, none of them involves a party being served in this manner. Federal Rule of Civil Procedure 5(b)(2)(E) provides that service may be made by

sending [a paper] to a registered user by filing it with the court’s electronic filing system or sending it by other electronic means that the person consented to in writing—in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served. (emphasis added).

There is no allegation that Shuler discovered the judgment because it was sent to her electronically. 13 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 14 of 21

Civil Rule 77(d) authorizes the clerk to “serve notice” of the entry of a judgment or

order as provided in Civil Rule 5(b), which in turn allows service by mail to the party’s last

known address. See Fed. R. Civ. P. 5(b)(2)(C) (“A paper is served under this rule by . . .

mailing it to the person’s last known address—in which event service is complete upon

mailing.”) (emphasis added)). Despite having been served in accordance with Civil Rule

5(b), Shuler claims she did not receive “notice because the mailing was returned as

undeliverable,” and “Rule 4(6)(A) requires ‘actual receipt, not simply effective service.’” 6

Opening Br. at 9 (quoting In re WorldCom, Inc.,

(2d Cir. 2013)); see

also Khor Chin Lim v. Courtcall, Inc.,

(7th Cir. 2012) (“[A] document

is not ‘received’ under Rule 4(a)(6) until it arrives at the litigant’s address.”).

The defendants interpret Rules 4(a)(6), 77(d), and 5(b) differently. They concede

that Shuler did not receive a copy of the court’s judgment by mail, but contend that Rule

4(a)(6) does not require actual receipt. They argue that Rule 4(a)(6) would not have

referenced Rule 77(d)—and in turn Rule 5(b)—if the intent was to require actual receipt as

opposed to constructive receipt based on proof of service by the clerk to the last known

address. Because the rule does not state that actual receipt is required but instead references

Rule 77(d), the defendants equate “receipt” with proper service under Rule 5(b). In other

6 Non-receipt of a court’s mailing is sometimes “difficult to prove conclusively.” See Nunley,

. Yet, we do not face that challenge here, as the record contains “[a] returned envelope”—an “indication of failed delivery,” see

as well as docket entries indicating the court’s mailing was returned by the Postal Service. Indeed, the defendants do not dispute that despite proper service of a copy of the judgment to Shuler pursuant to the method authorized under Civil Rule 5(b)(2)(C), it was returned to the Clerk as undeliverable, and thus Shuler did not receive actual notice of the judgment via service by mail. 14 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 15 of 21

words, they make no distinction between the “recei[pt] [of] notice” under Rule 4(a)(6),

“service of notice” under Rule 77(d), and the completion of “service” of a “paper” by mail

to a person’s last known address authorized in Rule 5(b)(2)(C). Following their reasoning,

the defendants contend that the requirements of Rule 5(b)(2)(C) and Rule 77(d)—and thus

Rule 4(a)(6)(A)—were met on April 23, 2020, when the clerk mailed the judgment to

Shuler at her last known address—regardless of whether it was actually received. Because

that occurred within twenty-one days of the entry of the judgment, the defendants ask us

to conclude that Shuler has not met the precondition in Rule 4(a)(6)(A) and we lack

jurisdiction to consider her appeal.

Notably, this Court has yet to address what constitutes “notice” for purposes of

Appellate Rule 4(a)(6). For guidance in our analysis of the applicable procedural rules, we

turn to, and find persuasive, authority from our sister circuits.

As the Seventh Circuit has noted, “Appellate Rule 4(a)(6) does not mesh perfectly

with Civil Rules 5(b) and 77(d). Rule 4(a)(6) talks of ‘receipt’ of a document under Rule

77(d); but Rules 77(d) and 5(b) concern ‘service’ rather than receipt.” Khor Chin Lim,

. So, while Rule 5(b)(2)(C) describes “what it means to ‘serve’ a document,” it

“does not tell us that service equals receipt.” Id.; see also Nunley,

(“When

a movant specifically denies receipt of notice, a district judge must . . . make a considered

factual determination concerning receipt, rather than denying the motion out of hand based

upon proof of mailing.”).

The Second Circuit adopted this view in WorldCom, expressly concluding that

“Rule 4(a)(6) refers to actual receipt, not simply effective service,”

, and

15 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 16 of 21

thus, effective service under Rule 77(d) does not itself satisfy Rule 4(a)(6)(A). The court

recognized that this interpretation of the text of Rule 4(a)(6)(A) is consistent with the

Advisory Committee’s Notes to the Rule.

The drafters of Rule 4(a)(6) were concerned with situations in which notice “either [is] not received by a party or is received so late as to impair the opportunity to file a timely notice of appeal” and cited not only cases in which notice was not mailed at all, but also cases in which notice was mailed but never actually received by the party. Moreover, the committee clearly contemplated a distinction between service and receipt when it said that “[w]inning parties are encouraged to send their own notice in order to lessen the chance that a judge will accept a claim of non-receipt in the face of evidence that notices were sent by both the clerk and the winning party.”

(alteration in original) (internal citations omitted) (quoting Fed. R. App. P.

4 advisory committee’s note to the 1991 amendment; Fed. R. Civ. P. 77 advisory

committee’s note to the 1991 amendment); see also Khor Chin Lim,

(Rule

4(a)(6) “is designed to allow a district judge to reopen the time for appeal if notice of the

judgment does not arrive—whether the fault lies with the clerk or the Postal Service.”).

Both Khor Chin Lim and WorldCom rejected the same argument the defendants make

here—that a document is received for purposes of Rule 4(a)(6) when it is served under

Rules 77(d) and 5(b)—on the ground that it “would prevent the rule from serving [its]

function.” WorldCom,

(quoting Khor Chin Lim,

).

Further, in Nunley v. City of Los Angeles, the Ninth Circuit held that “a specific

factual denial of receipt of notice rebuts the presumption of receipt, which is to be given

no further weight.”

. As that court observed, “[w]hile Rule 4(a)(6) puts the

burden on the moving party to demonstrate non-receipt, the rule does not mandate a strong

presumption of receipt.”

. Thus, any presumption of receipt of notice based on

16 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 17 of 21

proper service is certainly rebuttable where, as here, the undisputed evidence shows an

appellant did not in fact receive notice.

In support of their interpretation of Rule 4(a)(6), the defendants cite an unpublished

district court case from our Circuit. See Moment,

at *1. In Moment v.

Mortel, a pro se incarcerated appellant filed an untimely notice of appeal after the district

court issued an order dismissing his case.

at *1–2. The district court, in denying the

appellant’s Rule 4(a)(6) motion, concluded that the appellant received notice of the entry

of a final dismissal order when the clerk mailed it to him at the correctional facility that

was his last known address.

. The court acknowledged that it was “clear from the

record that the Clerk’s . . . attempt to serve notice on Moment did not have its desired

effect” because its mailing was returned as undeliverable.

Yet the court still held that

“[u]nder Rule 5(b), service was ‘complete’ the moment the Clerk mailed the order” to his

last known address, “no matter that it never reached its intended recipient.”

The defendants’ reliance on this unpublished district court opinion is unsustainable

given that we now hold that service pursuant to Rule 5(b)(2)(C) is not the functional

equivalent of notice for purposes of Rule 4(a)(6) in a case where the return of mail as

undeliverable establishes that notice of a judgment or order was in fact not received. 7

7 The defendants cite to additional unpublished, out-of-circuit cases to support their position. None, however, offer any thoughtful analysis as to the intersecting application of Rules 4(a)(6), 77(d) and 5(b). See generally Heidelberg v. City of Erie Police Dep’t.,

(3d Cir. 2017); Acosta v. Colorado, No. 18-CV-00684-LTB,

(D. Colo. July 10, 2019); Greene v. Logisticare Sols., LLC, No. 2:16-CV-755- BSJ,

(D. Utah May 4, 2017), aff’d sub nom. Greene v. Logisticare Sols., Inc.,

(10th Cir. 2017). 17 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 18 of 21

Therefore, we conclude that even where service has been made in accordance with

Rule 5(b)(2)(C), when the record establishes that the moving party did not receive notice

by mail or any other method described in Rule 5(b)(2), Rule 4(a)(6)’s first condition has

been satisfied. Applied here, Shuler has satisfied Rule 4(a)(6)(A) because the unrefuted

evidence establishes that the clerk’s mailing sent in accordance with Rule 5(b)(2)(C) was

returned as undeliverable.

2.

The second precondition under Rule 4(a)(6) requires a finding that Shuler moved to

reopen the time for appeal within the earlier of “180 days after the judgment” or “within

14 days after [she] receive[d] notice under Federal Rule of Civil Procedure 77(d) of the

entry.” Fed. R. App. P. 4(a)(6)(B). Given that Shuler did not receive notice of the entry

of judgment because it was returned as undeliverable, we agree with Shuler that this

precondition was met when she filed her motion to reopen on June 16, 2020—55 days after

the entry of judgment on April 22, 2020.

3.

Finally, Rule 4(a)(6) requires us to consider whether reopening the time for an

appeal would cause prejudice to other parties. See Fed. R. App. P. 4(a)(6)(C). The

Advisory Committee Note defines prejudice as “some adverse consequence other than the

cost of having to oppose the appeal and encounter the risk of reversal, consequences that

are present in every appeal. . .[,] for example, if the appellee had taken some action in

reliance on the expiration of the normal time period.” Fed. R. App. P. 4 advisory committee

notes to 1991 amendment.

18 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 19 of 21

Shuler contends that “Rule 4(a)(6)(C) is satisfied because [the d]efendants were not

prejudiced by the brief delay in [her] appeal,” that “the burden of opposing the appeal” is

not enough to establish prejudice, and the defendants have not identified any other

prejudice they would suffer if the district court reopened the time to file an appeal. Opening

Br. at 12.

“A response from the appellee provides the most informed method for a district

judge to assess the possible prejudice.” Nunley,

. Unfortunately, the

defendants did not respond to Shuler’s motion to reopen. They assert that they were not

afforded the opportunity to do so below. Yet given the opportunity here to refute Shuler’s

assertion that they would not suffer any prejudice, they have elected to focus their response

on the rule’s first two requirements, stating affirmatively that this Court lacks appellate

jurisdiction because Shuler “has not demonstrated compliance with the first or second

preconditions under Rule 4(a)(6).” Response Br. at 11. The defendants have not argued

that they were prejudiced by the reopening of the time to file a notice of appeal. 8

Accordingly, we conclude that Shuler has met the requirement of Rule 4(a)(6)(C) as well.

8 The defendants do assert that “[t]he district court did not consider the procedural history” of the case and “thus unfairly described [Shuler’s Rule 4(a)(6) and Rule 60(b)] motions as ‘unopposed’” before reopening the time to note an appeal, Response Br. at 3, but they do not argue that they have been prejudiced on this ground. They instead claim the district court’s “[in]accurate” and “grossly unfair” characterization of Shuler’s motions was an abuse of discretion because they “should have been given the opportunity to be heard on the mis-filed [Rule 4(b)(6)] motion before the district court granted it.” Id. at 15; see also id. at 12. 19 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 20 of 21

IV.

Notwithstanding that Shuler has met all three of Rule 4(a)(6)’s conditions, we note

that “Rule 4(a)(6) . . . is permissive and allows a district court to deny a motion to reopen

even if the movant meets the rule’s three requirements.” Woods v. Att’y Gen. of Maryland,

(4th Cir. 2013) (citing In re Jones,

(5th Cir. 1992))

(noting that “Rule 4(a)(6) allows the district court to grant relief if the specified

requirements are satisfied, but the rule does not require the district court to grant relief,

even if the requirements are met.”). With this guidance in mind, we address the clerical

missteps involved in the district court’s consideration of Shuler’s motion.

Shuler’s captioning of her Rule 4(a)(6) motion with an incorrect case number

resulted in its misfiling for several months. When the misfiling was discovered and

corrected, the district court did not inform the defendants, but instead summarily granted

Shuler’s Rule 4(a)(6) motion without affording them the opportunity to respond. In its

order, the court noted that the Rule 4(a)(6) motion was “unopposed,” but it is unclear what

impact, if any, the absence of any objection by the defendants may have had on the court’s

decision to grant the motion because the court did not articulate its reasons for doing so.

In light of our holding that Shuler has met the three requirements of Rule 4(a)(6) permitting

the district court to reopen the time for appeal, we remand this case solely to give the

defendants the opportunity to present argument as to what, if any, other factual or

procedural circumstances in this case support their contention that the motion should not

be granted. We take no position here on the merits of such an argument. Rather the intent

of our remand is only to afford the defendants an opportunity be heard on what is,

20 USCA4 Appeal: 20-6778 Doc: 44 Filed: 06/23/2023 Pg: 21 of 21

ultimately, a jurisdictional question, and the district court an opportunity to state its

reasoning for its decision.

V.

For the foregoing reasons, we vacate the district court’s decision and remand the

case to the district court for further proceedings consistent with this opinion.

VACATED AND REMANDED

21