480 F.3d 932 (9th Cir. 2007), 06-10234, United States v. Sadler

Docket Nº:06-10234.
Citation:480 F.3d 932
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Philip Martin SADLER, Defendant-Appellant.
Case Date:March 01, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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480 F.3d 932 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Philip Martin SADLER, Defendant-Appellant.

No. 06-10234.

United States Court of Appeals, Ninth Circuit

March 1, 2007

Argued and Submitted Dec. 7, 2006.

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Harriette P. Levitt, Tucson, AZ, for the appellant.

Celeste Corlett, Assistant United States Attorney, Tucson, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-04-01419-RCC/HCE.

Before: BRIGHT, [*] D.W. NELSON, and BERZON, Circuit Judges.


BERZON, Circuit Judge:

The question we address concerns the application of two recent Supreme Court cases, Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), to Federal Rule of Appellate Procedure ("FRAP") 4(b). We have long assumed that FRAP 4 is, in general, "mandatory and jurisdictional," and therefore not forfeitable 1 or waivable. Kontrick and

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Eberhart, however, clarified that procedural rules formerly referred to as "mandatory and jurisdictional" may be, instead, simply "inflexible claim-processing rule[s]," mandatory if invoked by a party but forfeitable if not invoked. See Eberhart, 126 S.Ct. at 403, 407; Kontrick, 540 U.S. at 456, 124 S.Ct. 906. Looking closely at Kontrick and Eberhart to determine the proper boundary between the two varieties of procedural standards, we conclude that Rule 4(b) is not jurisdictional, but, instead, is forfeited if not invoked. Here, however, the defendant's arguments to the contrary notwithstanding, the government properly objected to the untimeliness of the appeal. Accordingly, we dismiss.


On August 10, 2005, a jury found Philip Martin Sadler guilty of one count of conspiracy to transport illegal aliens for private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(i), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i); and two counts of transporting illegal aliens for private financial gain and placing in jeopardy the life of an alien, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). The district court entered judgment against Sadler on December 5, 2005.

On December 1, 2005, Sadler's trial attorney filed a motion to withdraw as his attorney, indicating in the motion that he had already filed a notice of appeal on behalf of Sadler. The trial court granted the motion on December 16, 2005 and appointed replacement counsel to "represent the Defendant in all further proceeding[s], including but not limited to the appeal now pending before the Ninth Circuit Court of Appeals."

Sometime thereafter, Sadler's replacement counsel discovered that Sadler's trial attorney had never actually filed the notice of appeal. On March 1, 2006, Sadler's new counsel filed with the district court a motion entitled "Motion to Accept Delayed Notice of Appeal," as well as a notice of appeal based on an insufficiency of the evidence claim. The district court granted Sadler's motion "[t]o the extent [the district court] has the ability to do so."

On May 16, 2006, the Appellate Commissioner of this Court issued an order indicating that Sadler's notice of appeal was not timely filed under Federal Rule of Appellate Procedure 4(b) and ordering the parties to brief whether we have jurisdiction to hear the appeal in light of Eberhart. We consider that question next.


A. Determining What is "Jurisdictional" after Kontrick and Eberhart

With respect to the timing for filing a notice of appeal, FRAP 4 provides, in relevant part:

Rule 4. Appeal as of Right--When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30

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days after the judgment or order appealed from is entered.


(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government's notice of appeal....

Fed. R.App. P. 4. Until recently, our caselaw was clear that compliance with the provisions of Rule 4 regarding the time for filing a notice of appeal was both mandatory and jurisdictional. See, e.g., United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir.2005) (describing Rule 4(b)'s time requirement as "mandatory and jurisdictional"); George v. Camacho, 119 F.3d 1393, 1396 (9th Cir.1997) (en banc) ("It is a well-settled principle that this court cannot hear an appeal that was not timely filed, as we have no jurisdiction to do so."); Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) ("[I]t is settled that compliance [with Rule 4(b)'s timing requirements] is both mandatory and jurisdictional."); see also 15A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3901 (2d ed. 1992) ("The rule is well settled that failure to file a timely notice of appeal defeats the jurisdiction of a court of appeals."). The Supreme Court's recent decisions in Kontrick and Eberhart, however, have called that long-standing assumption into question.

In Kontrick, 540 U.S. at 454, 124 S.Ct. 906, the Supreme Court expressed displeasure with the too-prevalent practice of applying the label "jurisdictional" loosely. Specifically, the Court explained that courts have tended to "classify[] time prescriptions ... under the heading 'subject matter jurisdiction,' " a practice which "can be confounding." Id. at 455, 124 S.Ct. 906 (internal quotation marks and alterations omitted). Admitting culpability for being "less than meticulous in this regard" itself, the Court went on to declare that

[c]larity would be facilitated if courts and litigants used the label "jurisdictional" not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority.


Applying the distinction it had drawn, the Court held that Federal Rules of Bankruptcy 4004(a), (b) and 9006(b)(3), which together govern the timing for the filing of a complaint opposing a debtor's discharge, did not affect the subject matter jurisdiction of the bankruptcy courts. Id. at 448, 453-54, 124 S.Ct. 906. Accordingly, under the more careful construction of the term "jurisdictional," the Court determined the rules in question to be nonjurisdictional but mandatory claim-processing rules--that is, subject to forfeiture but obligatory if not forfeited.

The Court came to this conclusion by comparing different sections of the statutory code governing the bankruptcy courts. Noting that under Article III of the Constitution "[o]nly Congress may determine a lower federal court's subject-matter jurisdiction," id. at 452, 124 S.Ct. 906, the Court distinguished between bankruptcy statutory provisions that contain "built-in time constraints" and those that do not, id. at 453, 124 S.Ct. 906. It then noted that because "[t]he provision conferring jurisdiction over objections to discharge ... contains no timeliness condition," such filings were governed by the time constraints

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contained in the Bankruptcy Rules, promulgated by the Court itself. Id. Because "it is axiomatic that such rules do not create or withdraw federal jurisdiction," id. (internal quotation marks and alteration omitted), the Court concluded that the timeliness provisions in question did not affect subject matter jurisdiction and were, instead, forfeitable claim-processing rules, id. at 454, 124 S.Ct. 906.

Building on Kontrick, the Court in Eberhart, 126 S.Ct. at 405, addressed once again the distinction between rules prescribing the adjudicatory authority of the courts and "non-jurisdictional claim-processing rules," this time outside the bankruptcy context. Eberhart concerned whether a new trial motion that fails to comply with the timing requirements of Federal Rules of Criminal Procedure 33 and 45(b)(2) must be dismissed for lack of jurisdiction, even though the government did not assert the motion's untimeliness in the district court. The Court compared Rules 33 and 45(b)(2) with the bankruptcy provisions at issue in Kontrick and concluded that "[i]t is implausible that the Rules considered in Kontrick can be nonjurisdictional claim-processing rules, while virtually identical provisions of the Rules of Criminal Procedure can deprive federal courts of subject-matter jurisdiction." Id. at 405. Eberhart therefore declared that Rules 33 and 45 were nonjurisdictional and thus forfeitable. Id. at 407.

B. Jurisdictional Nature of Rule 4

Whether Rule 4's time limitations all remain jurisdictional after Kontrick and Eberhart is a question of first impression in this circuit. The courts of appeals that have acknowledged the possible impact of Kontrick and Eberhart on Rule 4 have largely avoided reaching any jurisdiction question. 2 See Moreno-Rivera, 472 F.3d at 50 n. 2; United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir.2006); Burnley v. City of San Antonio, 470 F.3d 189, 192 & n. 1 (5th Cir.2006 ); Carelock, 459 F.3d at 439-41 & n. 6; Bowles, 432 F.3d at 671-72 n. 1; 3 cf. United States v. Smith, 438 F.3d 796, 801 (7th Cir.2006) (acknowledging issue but declining to address it because both parties characterized appeal as pertaining to post-judgment order, for which appeal was timely). A careful review of the reasoning of Eberhart and Kontrick, however, makes clear that while Rule 4(a), pertaining to civil appeals, is jurisdictional, Rule 4(b), covering only criminal appeals and here applicable, is not.

The distinction...

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