Fourth Circuit adds to its line of cases on untimely criminal appeals.

By Jonathan Biran

Last week, I posted about United States v. Oliver, in which the Fourth Circuit held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As that post was about to go live, the Fourth Circuit added to its limited jurisprudence in this area in United States v. Hyman, holding that the Government did not forfeit its objection to an untimely criminal appeal by waiting to file a motion to dismiss until after the defendant filed his opening brief. 

Hyman pled guilty to a drug charge in the Middle District of North Carolina. The district court entered judgment on June 27, 2016. Hyman’s notice of appeal was due for filing no later than July 11, 2016. However, Hyman did not note an appeal until November 2016, when he filed a notice pro se. The Court appointed counsel for Hyman and ordered briefing. Hyman filed his opening brief and joint appendix on February 13, 2017.

On March 2, 2017, the government filed a motion to dismiss the appeal on the ground of untimeliness. Hyman responded that the Court should allow his untimely appeal to proceed because the government unnecessarily delayed its filing of the motion to dismiss until after Hyman had filed his opening brief. The government subsequently argued in its brief that it was permitted to file a motion to dismiss when it did under Fourth Circuit Local Rule 27(f), which says: “Motions to dismiss based upon the ground that the appeal is not within the jurisdiction of the Court or for other procedural grounds may be filed at any time” (emphasis added). Hyman didn’t offer any argument in his reply brief about Local Rule 27(f).

The Court held that “[b]ecause we are required to strictly apply any claim-processing rules if they are timely raised, and because our Local Rules permit a party to raise the timeliness issue at any time,” it was appropriate to grant the government’s motion to dismiss. Slip Op. at 5. Indeed, the Court reasoned, “if we were to deny its motion to dismiss, we would in effect be sanctioning the Government for following our own Rule.” Id. At oral argument, Hyman was unable to articulate a standard for establishing the point at which a motion to dismiss should be found untimely and deemed forfeited. The Court said that Hyman’s difficulty in this regard was telling: it “reflects the frailty of attempting to insert a nebulous equity argument in the face of a clear, mandatory claim-processing rule.” Id. at 6. And, the Court added, Hyman never pointed to any prejudice he suffered by virtue of the timing of the government’s motion to dismiss.

(The Court didn’t say it, but it was only the taxpayers who were arguably prejudiced by the government’s delay, given that an earlier motion to dismiss could have obviated the need for the appointment of counsel to represent Hyman; for the government to use its resources to undertake more briefing and travel to Richmond for oral argument; and for the Court to devote its resources to deciding the case. The beneficiaries of the government’s delay were Hyman, who was able to file a merits brief (even if the Court ultimately didn’t address the merits of his appeal) and criminal appellate enthusiasts, who were able to take in a second opinion on the issue of untimeliness of criminal appeals within a matter of weeks.)

The Court discussed Oliver toward the end of its opinion, noting the Oliver panel’s statement that, if the appellee in a criminal appeal “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.” The Oliver panel recognized the broad language of Local Rule 27(f) in allowing a party to file a motion to dismiss “at any time,” but nevertheless found that the government had forfeited its right to move for dismissal because it had not objected based on timeliness grounds “until well after the merits briefing.”

This raises the question of the meaning of the phrase “at any time.” The plain language of “at any time” would seem to mean that the appellee could raise the issue of untimeliness after all merits briefing had been completed and even after oral argument, and it would not be considered an untimely objection to untimeliness. The panel in Hyman did not try to clean up that bit of messiness left over from Oliver: “As in Oliver, we decline to determine the boundaries of Local Rule 27(f). Regardless, under whatever limitations may cabin the Rule, the Government here filed its motion to dismiss for untimeliness well within any limits recognized in Oliver because the Government raised the dismissal argument before filing its response brief and within that brief.” Slip Op. at 7.  Thus, the Court granted the government’s motion to dismiss.