Fair Notice to Pro Se Litigants: Eastern District of Virginia Set to Modify Roseboro Warnings

Almost 50 years ago, the U.S. Court of Appeals for the Fourth Circuit, in a short, six paragraph opinion, ruled that pro se parties, those without lawyers, are entitle to “notice sufficiently understandable to [the pro se litigant]” what the requirements are of the summary judgment rule in civil practice. The ruling came in Roseboro v. Garrison and it required that pro se litigants be notified that they have the right to file a response to a summary judgment motion and that if they don’t respond, that their case might be dismissed.

How those warnings are provided in the Eastern District of Virginia is about to change.

First, some background. In light of the decision in Roseboro, the Local Rules for the Eastern District of Virginia were updated to include Local Rule 7(K) which requires counsel filing a dispositive motion to include a very specific footnote “at the foot of the motion.” The footnote must state:

1. The pro se party is entitled to file a response opposing the motion and that any such response must be filed within twenty-one (21) days of the date on which the dispositive or partially dispositive motion is filed; and
2. The Court could dismiss the action on the basis of the moving party's papers if the pro se party does not file a response; and
3. The pro se party must identify all facts stated by the moving party with which the pro se party disagrees and must set forth the pro se party's version of the facts by offering affidavits (written statements signed before a notary public and under oath) or by filing sworn statements (bearing a certificate that it is signed under penalty of perjury); and
4. The pro se party is also entitled to file a legal brief in opposition to the one filed by the moving party.

This warning that counsel must provide to their unrepresented pro se adversaries became colloquially known as a Roseboro warning. Significantly, Rule 7(K) required that the warning to the pro se litigant should come from the lawyer filing the dispositive motion.

In the Eastern District of Virginia that practice appears to be on the cusp of changing in light of a July 19, 2024 opinion from the US Court of Appeals for the Fourth Circuit. In Milla v. Brown, the Court of Appeals reversed summary judgment against a pro se plaintiff who had filed a civil rights claim challenging his temporary detention by police. The Court ruled that the detention, as alleged by Milla, was unlawful and that the officers were not entitled to qualified immunity. One might have expected the opinion to have more or less end there followed by standard language remanding the case and ordering it to proceed to trial.

But on appeal, Milla did not argue solely about the merits of his civil rights claim. He also complained, on appeal, that the District Court did not itself provide him Roseboro warnings. While there was no dispute that defense counsel gave the required Rule 7(K) warnings in their motion for summary judgment, the District Court did not provide, from the Court itself, similar warnings. 

So, was the District Court required to give Roseboro warnings in addition to the warnings given by defense counsel? Milla doesn’t really answer the question. Instead, the Fourth Circuit noted that the cases explaining who must give Roseboro warnings often use the passive voice, leaving it at least a little unclear who specifically must give the warnings. But then the Court noted that Milla did not raise the Roseboro issue until he was on appeal. The Court observed that it might have considered the issue, notwithstanding Milla’s failure to object below, as a “fundamental error,” if Milla had raised the issue in his informal opening brief. But Milla didn’t raise the issue, so the Fourth Circuit didn’t decide whether the District Court’s failure to give Roseboro warnings of its own was a fundamental error that could require reversal. 

While the Fourth Circuit didn’t decide the question, it sure gave a hint. After all, having ruled in favor of Milla on the merits of his appeal, the Fourth Circuit didn’t have to address the Roseboro question at all.  And, once the Court determined the issue was not properly preserved for appeal, it could have simply said that. Instead, the Court gave over about three pages of discussion to the issue (more than the original Roseboro opinion itself) before saying “[w]e therefore reserve the question of whether EDVA’s local rule complies with Roseboro for another case in which that issue is properly preserved.”

After the Fourth Circuit dropped that pretty clear hint, the Eastern District of Virginia promptly picked it up. In a Notice of Change to Roseboro Practice, posted on the Court’s website on September 3, 2024 (just 44 days after Milla was decided), the Court advised: “Consistent with the Fourth Circuit’s recent opinion in Milla v. Brown, 109 F.4th 222, 233-34 (4th Cir. 2024), the Court will now issue a Roseboro notice to the pro se party. In light of this new procedure, Local Civil Rule 7(K) will likely be amended in the near future; however, it remains in effect for the time being.  As the Court’s Roseboro notice will often post-date the counsel notice required by Rule 7(K), the response time for the pro se party will be governed by the Court’s notice. The Court will provide notice of any further developments on this issue.” 

Practitioners should take away a couple of insights from this unusual dialogue between the Fourth Circuit and the District Courts:

• First, an appellate court can make its views about a procedural practice pretty clear even in cases that aren’t, strictly speaking, ripe for consideration.
• Second, District Courts read the Court of Appeals opinions closely and will pick up on guidance when it’s offered. 
• Third, we should continue to provide Roseboro notices in accordance with Rule 7(K). For now, the rule still requires those notices from counsel plus it’s a good practice as a hedge against later challenges to judgments.

If you have any questions about this post or other litigation issues, please contact Cullen at (804)783-7235 or CSeltzer@sandsanderson.com.