Dillon v. U.S.

• Decision Date: 09 June 1999
• Docket Number: PETITIONER-APPELLANT,RESPONDENT-APPELLEE,No. 97-3138,97-3138
• Citation: 184 F.3d 556
• Parties: (6th Cir. 1999) THOMAS J. DILLON,, v. UNITED STATES OF AMERICA, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 556

184 F.3d 556 (6th Cir. 1999)

THOMAS J. DILLON, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

No. 97-3138

U.S. Court of Appeals, Sixth Circuit

Argued: June 9, 1999

July 21, 1999

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 96-00354--John D. Holschuh, District Judge.

Brian Wolfman (briefed), Alan B. Morrison (briefed), Public Citizen Litigation Group, Washington, D.C., for Amici Curiae.

Douglas A. Trant (argued and briefed), Knoxville, Tennessee, for Petitioner-Appellant.

Louis M. Fischer (argued and briefed), Department of Justice, Criminal Division, Appellate Section, Washington, D.C.; James E. Rattan, Asst. U.S. Atty., Office of the U.S. Attorney, Columbus, OH, for Respondent-Appellee.

Galen J. White, Jr. (argued and briefed), Louisville, Kentucky, for Amici Curiae.

Norris, J., delivered the opinion of the court, in which Martin, C. J., Merritt, Kennedy, Nelson, Boggs, Siler, Daughtrey, Moore, and Cole, JJ., joined. Ryan, J., (pp. 6-8), delivered a separate Dissenting opinion, in which Suhrheinrich and Batchelder, JJ., joined. Clay, J. (pp. 9-21), delivered a separate Dissenting opinion, in which Gilman, J., joined except for Part I, with Gilman, J. (p. 22), also delivering a separate Dissenting opinion.

Before: Martin, Chief Judge; Merritt, Kennedy, Nelson, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, and Gilman, Circuit Judges.

OPINION

Alan E. Norris, Circuit Judge.

Pursuant to Fed. R. App. P. 35(a), a majority of the active Judges of this court voted to rehear en banc Dillon v. United States, No. 97-3138, (6th Cir. Nov. 10, 1998) (unpublished), in an attempt to set forth the precise requirements imposed by Fed. R. App. P. 3(c) (contents of the notice of appeal). Relying upon another recent decision of this court, United States v. Webb, 157 F.3d 451 (6th Cir. 1998) (per curiam), cert. denied, 119 S. Ct. 2019 (1999), the Dillon panel had dismissed petitioner's appeal for lack of jurisdiction because the notice of appeal failed, as specified by Rule 3(c)(1)(C), to "name the court to which the appeal is taken." We now hold that, while the requirements of Rule 3(c) are jurisdictional, see Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16 (1988), in the sense that a notice of appeal must explicitly name the court to which an appeal is taken when there is more than one potential appellate forum, where only one avenue of appeal exists, Rule 3(c)(1)(C) is satisfied even if the notice of appeal does not name the appellate court. Under the latter circumstances, filing the notice of appeal with the clerk of the district court from whose judgment the appeal is taken has the practical effect of designating the appropriate court of appeals and thereby eliminating any possible confusion with respect to the appellate forum.

In the case now before us, the Sixth Circuit represented the only appellate court available to petitioner. See 28 U.S.C. § 2253(a) (in a proceeding under section 2255 before a district Judge, the appeal shall lie in the court of appeals for the circuit in which the proceeding is held). Under our holding today, therefore, the notice of appeal was not defective because petitioner did not have a choice of forum and filed his notice of appeal in the district court that rendered judgment. Accordingly we remand to the original panel for further proceedings.

In 1993, Rule 3(c) was amended in order to "reduce the amount of satellite litigation spawned by the Supreme Court's decision in Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988)." Advisory Committee Notes to 1993 Amendments. While Torres specifically concerned the proper construction of Rule 3(c)(1)(A), it made clear that the entire rule was jurisdictional in nature. Id. at 315-16. The 1993 amendments were implemented in an attempt to soften the practical effect of this holding. Rule 3(c)(4) now reads:

"An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice."

As the Advisory Committee Notes to the 1993 amendments observe, "if a court determines it is objectively clear that a party intended to appeal, there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward." See also Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction 3d § 3949.4 ("These new provisions should... reduce substantially the number of appeals aborted for no reason.").

Although the 1993 amendments were aimed at ameliorating the effect of Rule 3(c)(1)(A), we see no reason why their underlying rationale does not apply with equal force to Rule 3(c)(1)(C). When there is only one appellate forum available to a litigant, "there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward" if, through inadvertence, an appellant has failed to name the court to which the appeal is taken.

In reaching this Conclusion, we are mindful that the Court in Torres cautioned, "although a court may construe the Rules liberally in determining whether they have been complied with, it may not waive the jurisdictional requirements of Rules 3 and 4, even for 'good cause shown' under Rule 2, if it finds that they have not been met." Torres, 487 U.S. at 317. It is not our intention in any way to "waive" the jurisdictional requirement that a notice of appeal designate the court to which the appeal is taken. However, when there is only one possible appellate forum, and no information or action contrary to the proper forum appears on the face of the papers, the filing of a notice of appeal has the practical effect of "naming" that forum. In contrast, when an appeal may be taken to more than one appellate court, failure to designate the court of appeal will result in dismissal of the appeal for lack of jurisdiction.¹

Petitioner's appeal is re-instated and this cause is remanded for further proceedings to the panel of this court that originally considered it.

NOTE:

RYAN, Circuit Judge, Dissenting.

I respectfully Dissent from the majority opinion, although I must do so separately because my fellow Dissenters have said some things with which I cannot agree.

Federal Rule of Appellate Procedure 3(c)(1)(C) explicitly and unambiguously requires that a notice of appeal "name the court to which the appeal is taken." And, it is incontrovertibly settled that the rule is jurisdictional. See Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988). So, if the rule announced in Torres means anything, it means that the failure to "name the court to which the appeal is taken" in the notice of appeal deprives the appellate court in which the appeal is filed of jurisdiction in the case.

Dillon did not, in his claim of appeal, state the name of the court to which the appeal was taken. Therefore, this court is without jurisdiction to entertain the appeal. In syllogism form, the proposition would go something like this:

Major premise: No appellate court has jurisdiction of an appeal in which the notice of appeal fails to name the court to which the appeal is taken.

Minor premise: But Dillon's notice of appeal fails to name the court to which the appeal is taken.

Conclusion: Therefore, no appellate court has jurisdiction of Dillon's appeal.

But the members of the majority dislike the idea that subrule (C), like (A) and (B), should be jurisdictional; some think the rule is unnecessarily harsh, unjustly restrictive, and ill-considered; others think we ought to ignore failure to comply with the rule because many lawyers have been ignoring it. And so the majority has today suspended the requirement of (C) that the notice of appeal must "name the court to which the appeal is taken" if it turns out that the flawed appeal is filed in the only court to which a proper appeal could properly have been taken. If the United States Supreme Court had not declared in Torres that compliance with all of Rule 3(c)(1) is jurisdictional, the majority's strained effort to substitute its own rule for the plain English requirements of Congress's rule might be defensible. But the Supreme Court has said that compliance with the rule is jurisdictional and, therefore, noncompliance with it must necessarily defeat jurisdiction.

This is not rocket science; it is plain English. We do not "apply" a rule that establishes a condition precedent to our exercise of jurisdiction by exercising jurisdiction despite noncompliance with the rule when in our judgment the condition precedent is burdensome, unwise, and ignored by some members of the bar. In doing that, we "misapply" the rule.

To the credit of the signors of the majority opinion, they do not claim that there was "substantial compliance" with the rule in this case or that Dillon's notice of appeal contained some language somewhere that is the "functional equivalent" of naming the court to which his appeal was to be taken. My colleagues simply hold in a remarkable ipse dixit that compliance with subrule (C), albeit jurisdictional, may hereafter be ignored and excused in the vast majority of all appeals in this circuit; that is, appeals in which the defective appeal is taken to the proper court. That kind of "reasoning" is known in forums less august than this United States Court of Appeals as an "800-pound gorilla rule." That is to say, even though this court has no authority whatever to excuse compliance with Rule 3(c)(1)(C), it nevertheless has the "power" to do so because more active Judges on this court are willing to excuse noncompliance with the rule than are unwilling to do so.

This is not an attractive thing that the court does today. Not only does it make a hash of the venerable principle of judicial self-restraint, it also sends an unmistakable signal to the bench and bar that it is open season in Cincinnati on the...