Is FRAP 4(b) Appeal Deadline Jurisdictional? Maybe, Maybe Not.

United States v. Leijano-Cruz, No. 05-50280 (5th Cir. Dec. 20, 2006) (Jones, Smith, Stewart)

Is the notice-of-appeal deadline in Fed. R. App. P. 4(b) jurisdictional, or is it just a claim-processing rule? If it's the former, then an untimely notice bars the appeal. If it's the latter, then the Government could waive or forfeit any objection to an untimely notice of appeal, thus allowing the appeal to proceed. Leijano-Cruz doesn't actually decide the issue one way or the other. Instead, it holds that a district court does not err in enforcing the deadline against a defendant, even if the Government doesn't respond to the defendant's motion to extend the appeal deadline.

How did this come up? Leijano filed a notice of appeal (and a motion to extend the appeal deadline) after the 10-day deadline and 30-day extention period in FRAP 4(b) had already expired. The Government did not respond to Leijano's motion. The district court denied the motion on the grounds that it lacked the statutory authority to do so, and that, in any event, Leijano failed to demonstrate good cause or excusable neglect.

"Leijano-Cruz appeal[ed] the denial, arguing that rule 4(b) is a non-jurisdictional claim-processing rule that the government forfeited by failing to object to his motion for extension." Slip op. at 2. The court notes that it "has traditionally held that rule 4(b) is jurisdictional and thus cannot be forfeited or waived[,]" but allows as how the Supreme Court's recent decision in Eberhart v. United States, 126 S. Ct. 403 (2005) (per curiam) "casts doubt on [the Fifth Circuit's] traditional view." Id.

Eberhart involved the Fed. R. Crim. P. 33 deadline for filing a motion for new trial. Eberhart had filed a memorandum in support of his motion for new trial after the deadline had already passed. The Government opposed Eberhart's motion on the merits, but did not challenge its timeliness. The district court granted the motion, and the court of appeals reversed on the ground that the deadline was jurisdictional. The Supreme Court held that the Rule 33 deadline is simply a claim-processing rule rather than a jurisdictional requirement, and that the Government had therefore forfeited its right to raise a timeliness defense.

Leijano-Cruz reviews Eberhart's discussion of an earlier Supreme Court case which held that the notice-of-appeal deadline in Rule 4(b)'s predecessor was jurisdictional, and concedes that "one might conclude [from that discussion] that rule 4(b) is nonjurisdictional[.]" Slip op. at 3. Nevertheless, the court goes on to point out that "no court of appeals has yet done so[,]" and concludes that it is "unnecessary to take that step here." Id. at 3-4.

This is because, even if Eberhart applies to notices of appeal in criminal cases, the Supreme Court there held only that a district court’s decision to permit an untimely document to be considered could not be reversed in the absence of an objection by the government in the district court. Eberhart does not hold that a defendant, as appellant from a decision that forbade his pursuing an untimely noticed appeal, has a right to have the untimeliness disregarded.

In other words, the district court does not err, after Eberhart, if it enforces an inflexible claim processing rule, and we may not reverse its decision to do so. Irrespective of whether the government noted the untimeliness in the district court, it is the defendant’s burden on appeal to show that the court erred in enforcing the rule.

Id. at 4.

What this means is that there's still room to argue, in light of Eberhart, that FRAP 4(b)'s deadline is not jurisdictional. On the down side, this opinion limits the range of procedural scenarios in which a defendant will be in a position to do so.