Gerringer v. United States

• Decision Date: 15 March 1954
• Docket Number: Misc. No. 357.
• Parties: GERRINGER v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 403, 213 F.2d 346 (1954)

GERRINGER v. UNITED STATES.

Misc. No. 357.

United States Court of Appeals District of Columbia Circuit.

Decided March 15, 1954.

Petition for Reconsideration Denied July 1, 1954.

Mr. Kingdon Gould, Jr., Washington, D. C. (appointed by this Court) for petitioner.

Mr. William R. Glendon, Asst. U. S. Atty. at the time of argument, with whom appeared Messrs. Charles M. Irelan, U. S. Atty. at the time of argument, and William E. Kirk, Jr., Asst. U. S. Atty. at the time the petition was filed, for respondent. Mr. Leo A. Rover, U. S. Atty., also entered appearance for respondent.

Before STEPHENS, Chief Judge, and PROCTOR^* and BAZELON, Circuit Judges.

STEPHENS, C. J.

This case is before the court upon a "Motion for Permission to Appeal in Forma Pauperis" and upon an additional "Motion for Leave to Apply to District Court for Permission to Appeal, in Forma Pauperis." Both motions were filed by Kenneth Gerringer who is presently imprisoned in Lorton Reformatory, Virginia. An understanding of the questions presented requires an account of relevant proceedings in the United States District Court for the District of Columbia and in this Court of Appeals.

Gerringer was convicted in the District Court of assault with a dangerous weapon, and, on June 24, 1949, was sentenced to a term of three to nine years imprisonment. On September 18, 1952,¹ he filed a motion in the District Court, under 28 U.S.C. § 2255 (Supp.1952), to set aside the conviction and vacate the sentence. On October 13, 1952, the District Court denied that motion. On or about December 6, 1952, the Clerk of this Court of Appeals received through the mail Gerringer's motion, dated December 3, 1952, for permission to appeal in forma pauperis from the order of October 13. On December 24, 1952, that motion was returned by the Clerk to Gerringer for the reasons, as stated in an accompanying letter from the Clerk, that an insufficient number of copies of the motion had been submitted in view of the requirements of the General Rules of this Court² and that the form of proof of service of the motion was not in conformity with Rule 31(h) of those Rules.³ On January 16, 1953, the Clerk, again through the mail, received the motion with the required copies and a proper affidavit of service. Authority to file the motion without prepayment of costs was given to the Clerk by the Chief Judge on February 11, 1953. On February 13, 1953, the Government filed with the court an opposition to Gerringer's motion for permission to appeal in forma pauperis, contending therein that the motion should be denied for the reason that Gerringer had failed to show (1) that a request for leave to appeal in forma pauperis had been made in the District Court and (2) the action of the District Court on such a request, if any. In support of its opposition, the Government cited Waterman v. McMillan, 1943, 77 U.S.App.D.C. 310, 135 F.2d 807, certiorari denied, 1944, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1599. In that case, in interpreting the then applicable statute⁴ and outlining the procedures to be followed under it, the court stated:

On February 19, 1953, this court appointed counsel to represent Gerringer.⁵ On March 24, 1953, Gerringer, by his appointed attorney, filed with this court his motion for leave to apply to the District Court for permission to appeal in forma pauperis. In an appended statement of points and authorities, Gerringer admitted that he had not followed the procedure for seeking leave to appeal in forma pauperis required by 28 U.S.C. § 1915 (Supp.1952) and described in Waterman v. McMillan, supra. He contended, however, that extenuating circumstances existed which were sufficient to warrant the granting by this court of his motion for leave to apply to the District Court for permission to appeal in forma pauperis, to wit: at the time he mailed to this court his motion for permission to appeal in forma pauperis, he had no counsel and was personally unfamiliar with the proper procedure; also, the delay by the Clerk of this court in returning to him, Gerringer, his motion for permission to appeal in forma pauperis had "prevented him from learning the proper procedure until the time for making use of it had lapsed." On March 31, 1953, the Government filed an opposition to the motion for leave to apply to the District Court for permission to appeal in forma pauperis. The Government urged that the Court of Appeals lacked jurisdiction to entertain the motion because Gerringer had not, within the time prescribed by law,⁶ "in any wise indicated to the District Court his intention to appeal." In support of that contention the Government cited Spengler v. Hughes Tool Co., 10 Cir., 1948, 169 F.2d 166, Lamb v. Shasta Oil Co., 5 Cir., 1945, 149 F.2d 729, and Tinkoff v. West Pub. Co., 7 Cir., 1943, 138 F.2d 607, certiorari denied 322 U.S. 740, 64 S.Ct. 1054, 88 L.Ed. 1574, rehearing denied, 1944, 322 U.S. 773, 64 S.Ct. 1282, 88 L. Ed. 1597.

Arguments in behalf of both parties on Gerringer's motion for leave to apply to the District Court for permission to appeal in forma pauperis and on the Government's opposition thereto were heard by this court on April 2, 1953. Thereafter Gerringer filed in this court a "Memorandum in Support of Oral Argument." Therein, relying principally upon statements quoted from the opinion in Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 2 Cir., 1946, 159 F.2d 163 (which statements are quoted infra in this opinion), he for the first time contended that by reason of the receipt by the Clerk of this court and by the United States Attorney, within 60 days of the entry of the order with respect to which permission to appeal in forma pauperis was sought, of his, Gerringer's, motion to appeal in forma pauperis, this court had acquired jurisdiction to entertain his motion for leave to apply to the District Court for permission to appeal in forma pauperis.

Although the Spengler, Lamb and Tinkoff decisions cited by the Government rule that the filing of a notice of appeal within the time prescribed by law is essential to the jurisdiction of the Court of Appeals, those decisions are not decisive of the question now before this court. In each of those cases the appellant had filed a notice of appeal in the proper court, i. e., the District Court, and the only question to be determined by the appellate court was whether or not a late filing of the notice of appeal in the District Court invested the Court of Appeals with jurisdiction to hear and determine the appeal. But in the instant case, Gerringer's motion for permission to appeal in forma pauperis from the order of October 13, 1953, was received by the Clerk of this court on or about December 6, 1952, thus well within the time (i. e., 60 days from the entry of the order) within which an appeal must be taken. That motion was properly not stamped "filed" by the Clerk of this court on the date of its receipt because it did not conform, for the reasons above stated, with the rules of the court. But we think that Gerringer's lay unfamiliarity with the Rules of this court and the delay of the Clerk in returning the motion to Gerringer until after the time for taking an appeal had expired are circumstances sufficiently extenuating to warrant this court's treatment of the motion as if it had been filed on the date of its original receipt by the Clerk and thus within the time for taking an appeal. Cf. Williams v. United States, 1951, 88 U.S.App.D.C. 212, 188 F.2d 41; Boykin v. Huff, 1941, 73 App. D.C. 378, 121 F.2d 865. If within that time Gerringer's motion for permission to appeal in forma pauperis had been filed with the District Court it would have adequately served as a notice of appeal. Shannon v. United States, D.C. Cir., 1953, 206 F.2d 479; Randolph v. Randolph, 1952, 91 U.S.App.D.C. 170, 171, fn. 4, 198 F.2d 956, 957, fn. 4.

The critical question before this court in the instant case is, therefore, whether or not the mere filing with this court within the time for taking an appeal, of a motion for permission to appeal in forma pauperis — which, if it had been filed within that time with the District Court, would have constituted an adequate notice of appeal — can, under the circumstances of this case, serve as a notice of appeal sufficient to invest this court with jurisdiction to entertain a motion for leave to apply to the District Court for permission to appeal in forma pauperis. That is to say, while in each of the cases cited by the Government the Court of Appeals made a ruling with respect to the effect on its jurisdiction of the late filing of a notice of appeal with the right court, this court must now consider the effect on its jurisdiction of a timely filing of a notice of appeal, or its legal equivalent, with the wrong court.

The following decisions are pertinent: In Reconstruction Finance Corporation v. Prudence Securities Advisory Group, 1941, 311 U.S. 579, 61 S.Ct. 331, 85 L. Ed. 364, the petitioners endeavored to take appeals from certain compensation orders entered by the District Court under former Section 77B of the Bankruptcy Act, 48 Stat. 912 (1934), 11 U.S.C.A. § 207, by filing notices of appeal in that court within the appeal period provided for by Section 25, sub. a, of that Act, 11 U.S.C.A. § 48, sub. a. In so doing, the petitioners relied upon the decision in London v. O'Dougherty, 2 Cir., 1939, 102 F.2d 524, ruling that appeals from such orders could be taken as a matter of right by filing notices of appeal in the District Court. While the appeals thus attempted were under advisement in the Court of Appeals, the Supreme Court decided Dickinson Industrial Site v. Cowan, 1940, 309 U.S. 382, 60 S.Ct. 595, 84 L.Ed. 819, which ruled that appeals from all orders making or refusing to make allowances of compensation or reimbursement under Chapter X of the Chandler Act, 52 Stat. 840 (1938), 11 U.S.C.A. § 501 et seq., may be had only at...