In light of Matt’s post from yesterday, does anyone perceive an uptick in dismissals of appeals for notice of appeal problems? Are North Carolina lawyers unique in their propensity to screw up notices of appeal? Are dismissals for notice of appeal violations common in other appellate systems? Let’s say, for instance, the federal appellate courts? If not, why? Matt and I have been discussing and debating these questions for a few months. Yesterday’s Business Court dismissal prompted me to finally put some of my thoughts on the blogosphere.
A few months ago, the Maryland Appellate Practice Blog issued a fascinating post on an untimely criminal appeal in the Fourth Circuit. In United States v. Oliver, the Fourth Circuit addressed whether the appellate court had the authority to sua sponte dismiss an untimely criminal appeal.
For people who practice primarily in our state appellate courts, this question likely seems bizarre. Engrained in our psyche is the principle that an appellate court has an independent duty to assess whether a notice of appeal was timely filed. That opinion got me thinking: Are all jurisdictional labels created equal?
In federal civil appeals, this general rule is that an untimely notice of appeal is a jurisdictional defect. However, a different rule applies to federal criminal appeals. Moreover, even in civil appeals, the federal courts have historically exercised appellate review over a defective, but timely, notice of appeal that has not misled the other party. Why the differences?
Over the past few years, the United States Supreme Court has engaged in a significant course correction concerning the federal courts’ misuse of jurisdictional labels. For decades, the federal appellate courts (including the Supreme Court) had a bad habit of mischaracterizing rules of appellate procedure, elements of causes of actions, and various claim-processing requirements as “jurisdictional limitations.” Recognizing (1) the problems and temptations associated with indiscriminately labeling both rule and statutory requirements as jurisdictional, and (2) the separation-of-power concerns that arise when jurisdictional labels are attached to court-prescribed rules of procedure, the United States Supreme Court said, “mea culpa” (sort of). See Hamer v. Neighborhood Housing Servs. of Chicago, — U.S. — (2017) (acknowledging Supreme Court’s history of “mischaracteriz[ing] claim-processing rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central to the case, and thus did not require close analysis” (emphasis added)). To clear up the confusion, a unanimous Supreme Court in Hamer announced a “clear and easy to apply” rule of decision for determining what constitutes a true jurisdictional requirement:
If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category.
In federal criminal appeals, the deadline for filing a notice of appeal is set by Fed. R. App. P. 4(b)—and not by statute. Therefore, the time for filing a criminal notice of appeal is not a jurisdictional requirement under Hamer.
In United States v. Oliver, the distinction between rule-based and statutory notice of appeal deadlines precipitated an inquiry as to whether an Appellate Rule 4(b) timing defect could be forfeited by the government or if the Fourth Circuit could sua sponte dismiss the appeal. The government in Oliver did not raise the timing problem with the notice of appeal until well after the merits of the case had been briefed. The Fourth Circuit concluded in Oliver that it had the power to dismiss the untimely criminal appeals sua sponte, but that it would do so only under extraordinary circumstances. [H/T to the Maryland Appellate Practice Blog for its in-depth analysis of Oliver and a follow-up case.]. Thus, for federal criminal appeals, an untimely notice of appeal may support dismissal of an appeal (particularly when the issue is timely raised by the non-appealing party), but it does not require dismissal of the appeal because it is not a true jurisdictional limitation.
The case included a bit of “I cannot truly believe I’m writing this” news. Before the opinion in Oliver issued, the Fourth Circuit requested supplemental briefing on the issues surrounding the untimely notice of appeal. The government basically said, “Thanks, but no thanks.” The Fourth Circuit then entered an order stating, “The government is directed, not invited, to file a brief.” Awakened by the second order, the government’s attorneys filed supplemental briefing.
Common Sense Tip: When a Fourth Circuit judge says (ever so nicely), “you may want to consider …,” it really means, “you must do. . . .” Former and current Fourth Circuit law clerks can vouch for me on this bit of advice.
In summary, if you are handed a defective federal notice of appeal, “you may want to consider” whether it violates a rule-based or statutory requirement for noticing appeal.
P.S. Tomorrow I will post a follow-up “State Edition” post on this same topic.