Deloatch v. Sessoms-Deloatch, No. 20-FM-2

• Decision Date: 18 June 2020
• Docket Number: No. 20-FM-2, No. 20-CO-119
• Citation: 229 A.3d 486
• Parties: Dwight G. DELOATCH, Appellant, v. Robin SESSOMS-DELOATCH, Appellee, Marcelo F. Perez, Appellant, v. United States, Appellee.
• Court: D.C. Court of Appeals

229 A.3d 486

Dwight G. DELOATCH, Appellant,

v.Robin SESSOMS-DELOATCH, Appellee,Marcelo F. Perez, Appellant,

v.United States, Appellee.

No. 20-FM-2

No. 20-CO-119

District of Columbia Court of Appeals.

Decided June 18, 2020

Deahl, Associate Judge:

We have consolidated these appeals because they share dispositive issues. In each case, a notice of appeal was filed several years late, forcing us to confront whether the time prescriptions for noting appeals in D.C. App. R. 4 (" Rule 4") are jurisdictional. Because we hold that Rule 4 ’s time limits are non-jurisdictional, we must further address if and when it is appropriate for us to proactively dismiss an appeal as untimely where the appellees have raised no such objection.

The Supreme Court has made clear in recent years that time limits codified only in court-made rules—such as Rule 4(a) (governing civil appeals, like the appeal filed by Dwight Deloatch) and Rule 4(b) (governing criminal appeals, like the appeal filed by Marcelo Perez)—are non-jurisdictional "claim-processing" prescriptions. Kontrick v. Ryan , 540 U.S. 443, 454, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ; Hamer v. Neighborhood Hous. Servs. of Chi. , ––– U.S. ––––, 138 S. Ct. 13, 17, 199 L.Ed.2d 249 (2017). This straightforward rule, that courts cannot divest themselves of statutorily conferred jurisdiction, compels the conclusion that Rule 4(a) and 4(b) ’s time limitations are non-jurisdictional so that they may be "subject to forfeiture if not properly raised by the appellee." Hamer , 138 S. Ct. at 16. Our past precedents to the contrary—e.g. , Frain v. District of Columbia , 572 A.2d 447, 449 (D.C. 1990) ( Rule 4(a) "time limit is mandatory and jurisdictional"); McKnight v. United States , 764 A.2d 240, 241 (D.C. 2000) ( Rule 4(b) time limits "are both mandatory and jurisdictional")—are irreconcilable with intervening Supreme Court precedent and are no longer good law.

It follows that in the normal case, it falls first to appellees to raise any argument that a notice of appeal is untimely under Rule 4. The present appeals are not normal cases, however, as each appellant filed a notice of appeal several years out of time. This court retains some discretion to enforce claim-processing rules sua sponte. Given the substantial delays here, we exercise that discretion and dismiss both of these appeals as untimely. See, e.g. , United States v. Gaytan-Garza , 652 F.3d 680, 681 (6th Cir. 2011) (sua sponte dismissing untimely appeal because, while defect was non-jurisdictional, dismissal was "appropriate" where notice of appeal was "over four years late"); United States v. Oliver , 878 F.3d 120, 122 (4th Cir. 2017) ("We conclude that this Court has the authority to dismiss untimely criminal appeals sua sponte but that it should exercise that authority only in extraordinary circumstances."); United States v. Mitchell , 518 F.3d 740, 751 (10th Cir. 2008) (declining to dismiss sua sponte appeal that was filed one day late).

I.

In the first consolidated case, the trial court issued a judgment of absolute divorce settling various claims between Dwight G. Deloatch and his former wife, Robin Sessoms-Deloatch, in May 2015. It then denied Mr. Deloatch's motion to vacate the judgment on March 30, 2016. In January 2020, Mr. Deloatch noted an appeal from the underlying judgment. This court issued an order directing him to show cause why the appeal should not be dismissed as untimely where it was filed nearly four years after the time permitted by Rules 4(a)(1) and 4(a)(4)(A)(iii). See Rule 4(a)(1) ("The notice of appeal in a civil case must be filed ... within 30 days after entry of the judgment or order from which the appeal is taken ...."); Rule 4(a)(4)(A)(iii) ("the time to file an appeal runs" from denial of motion "to vacate" the judgment). Mr. Deloatch failed to respond.

In the second case, Mr. Perez pled guilty to first-degree child sexual abuse, and a judgment was entered in November 2011. He moved to withdraw his guilty plea, but on August 31, 2012, the trial court denied that motion because Mr. Perez expressly abandoned it. Mr. Perez noted an appeal from that decision in February 2020, making his appeal more than seven years out-of-time under the applicable Rule 4(b). See Rule 4(b)(1) ("A notice of appeal in a criminal case must be filed with the Clerk of the Superior Court within 30 days after entry of the judgment or order from which the appeal is taken ...."). This court issued an order to show cause why the appeal should not be dismissed as untimely. Mr. Perez responded but, suffice it to say, he offered no adequate explanation for waiting seven-plus years to raise a challenge to the August 2012 denial of his motion to withdraw his guilty plea.¹

II.

We first determine whether we have jurisdiction to entertain these appeals. See Murphy v. McCloud , 650 A.2d 202, 203 n.4 (D.C. 1994) ("[W]here a substantial question exists as to this court's subject matter jurisdiction, it is our obligation to raise it, sua sponte ...."). Under Rule 4(a), an appeal in a civil case must generally be filed within thirty days of the challenged judgment's entry. The same thirty-day deadline applies to appeals from criminal cases under Rule 4(b).² The appeal is thus nearly four years late in Mr. Deloatch's case, and more than seven years late in Mr. Perez's case.

We have previously held that failing to satisfy Rule 4 ’s time limits divests this court of jurisdiction, as we have stated that the time requirements in both Rule 4(a) and Rule 4(b) are "mandatory and jurisdictional." See Frain , 572 A.2d at 449 ( Rule 4(a) civil appeal); McKnight , 764 A.2d at 241 ( Rule 4(b) criminal appeal). Those holdings hewed closely to how the Supreme Court had, at one point in time, described various rule-based filing deadlines. For instance, in Frain , we relied primarily upon Browder v. Director, Department of Corrections , 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), which described federal Rule 4 as "mandatory and jurisdictional."³ Frain , 572 A.2d at 449 (citing Browder , 434 U.S. at 264, 98 S.Ct. 556 ). Likewise in McKnight , we relied on authority that traces back to the Supreme Court's opinion in United States v. Robinson ,⁴ which proclaimed that "the filing of a notice of appeal within the 10-day period prescribed by Rule 37(a)(2) is mandatory and jurisdictional." 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960).

That would normally be the end of the matter. See M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971) (explaining that "no division of this court will overrule a prior decision of this court," reserving such reconsideration for the "court en banc") (footnote omitted). We as a division would usually be bound by Frain and McKnight , which held (respectively) that Rule 4(a) and Rule 4(b) ’s time limits are jurisdictional. But in the years following those opinions, the Supreme Court has taken direct aim at their underpinnings and offered a course correction. It has acknowledged its own "less than meticulous" use of the word jurisdictional in cases like Robinson and Browder . See Kontrick , 540 U.S. at 454, 124 S.Ct. 906 (citing Robinson as exemplifying the Supreme Court's own past imprecisions); Hamer , 138 S. Ct. at 21 n.11 (noting that Robinson "mistakenly suggested that a claim-processing rule was ‘mandatory and jurisdictional’ "); Arbaugh , 546 U.S. at 510, 126 S.Ct. 1235 (admitting the Supreme Court has "sometimes been profligate" in its use of the word "jurisdictional," and highlighting Robinson as an example). It has clarified, repeatedly and in no uncertain terms, that "a time limit prescribed only in a court-made rule ... is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee." Hamer , 138 S. Ct. at 16 ; see also Kontrick , 540 U.S. at 454, 124 S.Ct. 906 (diagnosing its own mistakes of "describ[ing] emphatic time prescriptions in rules of court" as "jurisdictional"). The reason for that, the Court explained, is that only the legislature can alter a court's basic jurisdiction. Kontrick , 540 U.S. at 452, 124 S.Ct. 906 ("Only Congress may determine a lower federal court's subject-matter jurisdiction."); Hamer , 138 S. Ct. at 17 ("A time limit not prescribed by Congress ranks as a mandatory claim-processing rule ...."). While a court might constrain itself via court-made rules, it can also free itself of its self-imposed constraints so that they are, by their nature, non-jurisdictional restrictions.

This is not the first time that we have reversed course to acknowledge that time limits in court-made rules are non-jurisdictional. In Smith v. United States , we held that Superior Court Criminal Rule 35(b) ’s 120-day time limit for seeking a reduction of a sentence is non-jurisdictional. 984 A.2d 196, 200 (D.C. 2009). While we had previously held to the contrary,⁵ Smith acknowledged that intervening Supreme Court precedents substantially undermined those prior holdings and established the clear tenet that "court-promulgated rules" are "not jurisdictional and can be relaxed by the Court in the exercise of its discretion." Id. (quoting Bowles v. Russell , 551 U.S. 205, 211–12, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ).

Likewise in Mathis v. District of Columbia Housing Authority , we held that D.C. App. R. 15 ’s deadline for filing a petition for review of an agency order is non-jurisdictional and noted that the rationale behind prior precedent to the contrary had been debunked. 124 A.3d 1089, 1102–03 (D.C. 2015) (abrogating Capitol Hill Restoration Soc'y v. District of Columbia Mayor's Agent for Historic Pres. , 44 A.3d 271 (D.C. 2012) ). That was true even though Rule 15 had some statutory backing:⁶ D.C. Code § 2-510(a) (2016 Repl.) states that petitions for agency review "shall be filed ... within such time as" prescribed by court rule. No matter, we held, because that statutory prescription evinces "no position on issues of timeliness and...