Fourth Circuit holds that it can dismiss an untimely criminal appeal sua sponte, but should do so only in very limited circumstances.
In United States v. Oliver, the Fourth Circuit recently held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As a general rule, the Court said, it will not use that authority; instead, it will rely on the government to raise an objection based on untimeliness. In rare cases, however, an untimely appeal can implicate judicial interests to such an extent that not intervening would harm the court as an institution. Only in such circumstances will the Fourth Circuit exercise its authority to dismiss a criminal appeal where the government has forfeited or waived its objection.
Background on Oliver and how the Fourth Circuit came to review its sua sponte authority to dismiss untimely criminal appeals
In 2011, Leonard Oliver pled guilty in the District of South Carolina to a drug charge and was sentenced to 10 years in prison. The district court entered its judgment on September 30, 2011. Under Rule 4(b) of the Federal Rules of Appellate Procedure, in order to obtain direct review of his conviction and/or sentence, Oliver was required to file a notice of appeal in the district court within 14 days of the entry of judgment, which was October 14, 2011. He did not do so. Instead, Oliver filed a timely petition for collateral review under 28 U.S.C. § 2255 in 2012. The district court took several years to rule on that petition, finally denying it in March 2015.
On June 18, 2015, Oliver filed a very belated notice of appeal in the district court, seeking to directly appeal his conviction and sentence from September 2011. After the Fourth Circuit assigned counsel to Oliver, his attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), meaning that counsel was unable to identify any issues that she considered meritorious. Instead of filing a motion to dismiss the appeal as untimely, the government followed its usual practice in cases where a defendant’s appellate counsel files an Anders brief in a timely appeal: it informed the Court via letter that it would not file a response brief unless asked to do so by the Court. It’s possible the prosecutor did not give any thought to the untimeliness of the appeal; if he had, there seems to be no reason why he would have foregone promptly filing a short, boilerplate motion to dismiss that would have been a surefire winner. Another possibility is that he didn’t feel the need to raise the issue of untimeliness, because he was confident that, in due course, the Fourth Circuit would agree with Oliver’s counsel that there were no meritorious appellate issues and would therefore affirm the conviction and sentence.
But the Fourth Circuit had other plans for this otherwise run-of-the-mill case. It ordered supplemental briefing on these two questions: “Whether this court has authority to sua sponte dismiss a criminal appeal as untimely and, if so, under what circumstances this court may exercise that authority.”
The defendant’s appellate counsel then filed a brief arguing that the Court does not have the power to dismiss an untimely appeal sua sponte; alternatively, if the Court does have that power, she argued, the Court should not exercise it in Oliver’s case.
An interesting procedural note: the government responded to the filing of the defendant’s supplemental brief by filing another letter with the Court notifying the Court that it was declining to file a supplemental response brief. Where I come from, we call this chutzpah. The Court apparently was not pleased. It then entered a terse order: “The government is directed, not invited, to file a brief” addressing the issues the Court had identified regarding the untimeliness of appeal.
Having finally gotten the message that filing a substantive response was not merely optional, the government filed a supplemental response brief arguing that the Court of Appeals does have the authority sua sponte to dismiss an untimely criminal appeal, and that it should do so in this case.
The reason the Court had to consider whether it has the authority to dismiss an untimely criminal appeal sua sponte is because Rule 4(b), as a judicially created deadline, is not a jurisdictional provision. This is in contrast to Rule 4(a) – the rule that provides the time for noting an appeal in a federal civil case – which is based on a federal statutory deadline. Because the various deadlines in Rule 4(a) are statutorily prescribed, they constitute jurisdictional bars that must be invoked sua sponte by the Court of Appeals. In contrast to a jurisdictional provision such as Rule 4(a), Rule 4(b) is an “inflexible claim-processing rule.” As such, the case law is clear that, when the government promptly invokes Rule 4(b) in response to a late-filed criminal appeal, the Court of Appeals must dismiss. Oliver, Slip Op. at 4. But where, as in Oliver’s case, the government “fails to object promptly to an appeal’s untimeliness in either its merits brief or an earlier motion to dismiss, it generally forfeits the right to do so.” Id.
My own experience with the timeliness of moving to dismiss an untimely criminal appeal
At this point, allow me to pause for a moment and recount a previous effort of the Fourth Circuit to address this question in a case that I ended up arguing on behalf of the government. In 2010, when I was the Appellate Chief of the U.S. Attorney’s Office for the District of Maryland, the parties received an Order from the Fourth Circuit for supplemental briefing similar to the one that the parties received in Oliver. Our case was United States v. Lee, No. 09-4516. Lee had filed his appeal only about 45 days late. He then filed an Informal Opening Brief pro se. Under Fourth Circuit Local Rule 34(b), no response brief was required of the government at that point, and the USAO did not file a response brief after receiving Lee’s pro se Informal Opening Brief. The Fourth Circuit then sat on the appeal for about nine months. Then, seemingly out of nowhere, the Court appointed Lee counsel, directed counsel to address the sua sponte/untimeliness issue, and issued a Briefing Order. Three months later, and following the filing of Lee’s supplemental brief, the government filed a motion to dismiss Lee’s appeal on the ground of untimeliness. The government did so prior to the due date of the government’s response brief. The Court deferred action on the government’s motion to dismiss, so we prepared and filed a response brief, which included an argument addressing the merits of Lee’s appeal. In the government’s response brief, we also reiterated our request that the defendant’s appeal be dismissed as untimely. By moving to dismiss Lee’s appeal, we essentially mooted the question of whether the Court had authority to dismiss an untimely criminal appeal sua sponte, because it would no longer be a sua sponte dismissal if the Court granted our motion to dismiss. In an unpublished opinion, the Court decided to reach the merits of Lee’s appeal and affirmed his conviction. The Court in Lee said that the government had waited too long to move to dismiss, notwithstanding the fact that the government did so in its first responsive pleading filed in the appeal. If Lee were decided now, presumably the panel would grant the government’s motion to dismiss, because, as the Court indicated in Oliver, an objection based on untimeliness is well taken if it is raised in the government’s merits brief or in an earlier motion to dismiss.
But I digress.
Back to Oliver – Does the Court have sua sponte authority and if so, when should it exercise that authority?
Finally able to issue a published opinion on the question of the Court’s sua sponte authority regarding Rule 4(b), the Court joined the Sixth and Tenth Circuits and held that the Court of Appeals does have the authority to dismiss a late-filed criminal appeal sua sponte. The Fourth Circuit relied on its inherent authority to manage its own affairs so as to achieve the orderly and expeditious disposition of cases. This exercise of the Court’s inherent authority was appropriate, according to the Fourth Circuit, because “late-filed criminal appeals can implicate significant judicial interests. Most notably, they disrupt the finality of criminal judgments.” Slip Op. at 6. Reviewing the merits of an untimely appeal “reopens the appellate process and thereby makes what was a final judgment no longer final.” Id. at 7. The Court therefore held that, “[g]iven the potential consequences of adjudicating untimely criminal appeals, we conclude that the power to dismiss such appeals is necessary to protect the finality of criminal judgments and the efficiency and fairness of our justice system.” Id. at 8.
The Court then turned to the question of whether it should exercise its power to dismiss Oliver’s appeal sua sponte. The Court prefaced this part of its opinion by noting that the existence of an inherent authority to act “does not mean that it is appropriate to use that power in every case.” Id. at 9 (internal quotation marks and citation omitted). The Court observed that “[t]his is particularly true where, as here, the exercise of inherent power involves raising an issue that the parties have forfeited or waived and dismissing the case on that ground.” Id. This is so because, “[i]n our adversarial system, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. The importance of preserving this system and its benefits weighs heavily against considering Rule 4(b) sua sponte.” Id. (internal quotation marks and citation omitted). The Court further explained: “When the court raises a forfeited issue sua sponte, it undermines the principle of party presentation and risks becoming a third advocate. Habitual sua sponte consideration of a forfeited issue disincentivizes vigorous advocacy and thereby chips away at the foundation of our justice system.” Id. at 10-11 (citation omitted). Thus, the Court said, “[i]f the Government neglects to object to a late-filed criminal appeal, we must not rush to its aid. Indeed, we should assume that the Government wishes the court to decide the case on the merits.” Id. at 12. As a general rule, therefore, the Court held that it “should not invoke Rule 4(b)(1)(A) to dismiss an untimely criminal appeal when the Government has forfeited or waived its objection.” Id. at 15.
However, the Court explained that there are “some circumstances in which this Court’s interests in dismissing an untimely criminal appeal supersede the interests of the parties and the principle of party presentation…. [I]n those instances, and only those instances, this Court should exercise its inherent authority to consider Rule 4(b)’s filing deadline sua sponte.” Id. at 12-13. The Court identified
two circumstances in particular [that] threaten the judiciary’s institutional interests to such an extent that intervening in the adversarial process by raising a forfeited or waived Rule 4(b) defense is necessary. The first is an appeal from a final judgment filed so late that in the interim, a court has issued a subsequent judgment, such as a sentence enhancement, in reliance on the judgment appealed…. [A]djudication of such an appeal on the merits has a domino effect—it disrupts not only the judgment appealed, but also the subsequent judgment. And disrupting the latter judgment would create new grounds to challenge that judgment, grounds that would not exist but for the defendant’s untimely appeal.
The second circumstance that warrants sua sponte invocation of Rule 4(b) is a direct appeal filed after the defendant has completed collateral review of the same judgment. Such appeals circumvent the established process that our criminal justice system prescribes for resolving cases. A defendant can seek collateral review of a criminal judgment—i.e., file a petition for habeas corpus—only after that judgment has become final. Thus, in collaterally reviewing a criminal judgment, a district court relies on the fact that the defendant has exhausted all opportunities for direct review. Reviewing an appeal post-collateral review not only nullifies the district court’s efforts in adjudicating the habeas petition, but also restarts the process such that the defendant gains a second opportunity for collateral review. As important as the principle of party presentation is, we cannot allow litigants to turn the review process on its head and obtain additional judicial review by disregarding Rule 4(b)’s mandate.
Id. at 13-14.
Because Oliver filed his notice of appeal of the district court’s judgment after completing collateral review of that judgment, his case fell into one of the two rare circumstances identified by the Court as justifying sua sponte invocation of Rule 4(b). Accordingly, the Court dismissed Oliver’s appeal.
Takeaways from Oliver
A couple of takeaways from this case: First, in those cases where a defendant files a notice of appeal a little late (or quite late, but where neither of the rare circumstances referred to by the Court as justifying sua sponte dismissal has occurred), the government’s inaction will likely mean that the Court of Appeals won’t exercise its inherent authority to dismiss sua sponte. Thus, if you’re a federal prosecutor who doesn’t want to have to brief the merits of an appeal unnecessarily, you’d be well advised to check the date of filing of the notice of appeal and promptly file a motion to dismiss if the appeal was filed late.
Second, a defendant who has blown both the Rule 4(b) deadline for a direct appeal and the one-year statute of limitations for a section 2255 petition for collateral review, may want to consider in the first instance not filing a late 2255 petition, but instead first filing a notice of direct appeal. Although the government (especially after Oliver) probably will promptly move to dismiss the late-filed appeal, you might get lucky and catch the government napping, or perhaps the government for some reason will want to allow the Court to reach the merits of your appeal, in which case the government will not file a motion to dismiss. All other things being equal, it is almost always better for the defendant to be arguing points on direct appeal, rather than on collateral review where there are additional procedural barriers to overcome. And, a defendant who has missed the one-year statute of limitations for filing a 2255 petition will usually have a difficult time establishing equitable tolling of the limitations period. If a defendant decides to file a late notice of direct of appeal, instead of a late 2255 petition, while the Fourth Circuit after Oliver will have the authority to dismiss the direct appeal sua sponte, if the government for whatever reason forfeits or waives an objection based on untimeliness, there won’t yet be a decided 2255 petition presenting the extraordinary reason to invoke that authority.
One last question to think about: in most cases, the appellee in a federal criminal case is the government, and the party who has filed an untimely notice of appeal is a criminal defendant. The Court in Oliver discussed its power and whether to exercise it in the context of the government’s waiver or forfeiture of an objection based on untimeliness. But what happens if the government for some reason files a belated notice of appeal of an adverse decision (such as suppression of evidence or a sentence that it finds to be substantively unreasonable) and the defendant then neglects to move to dismiss the untimely government appeal? Will the Court of Appeals be more inclined or less inclined to exercise its inherent authority to dismiss the government’s belated appeal sua sponte? On the one hand, a government appeal usually presents a substantial issue, given that the USAO has to obtain approval from the Solicitor General’s Office to pursue the appeal before it may file an Opening Brief. Perhaps the Court will be reluctant to squelch the opportunity to reverse an arguably incorrect decision that benefitted a criminal defendant. On the other hand, the Court of Appeals usually has little patience for errors by the government, and dismissing a government appeal sua sponte would certainly get the message across to the government loud and clear that the government needs to file a notice of appeal in a timely manner or suffer the consequences, even where the defendant has slept on his or her right to obtain dismissal of the appeal. The government in my experience is good at filing its notices of appeal within the 30-day period that applies to the government under Fed. R. App. 4(b)(1)(B). But government lawyers are human too. It will be interesting to see how Oliver is applied to an untimely government appeal if/when the defendant fails to promptly object.
P.S. Yesterday, the Fourth Circuit issued another published opinion on the timeliness of moving to dismiss an untimely-noted criminal appeal, United States v. Hyman. A short follow-up post on Hyman is forthcoming, and expected next week.