Gilda Industries, Inc. v. U.S.

• Decision Date: 04 January 2008
• Docket Number: No. 2007-1172.,2007-1172.
• Citation: 511 F.3d 1348
• Parties: GILDA INDUSTRIES, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

511 F.3d 1348

GILDA INDUSTRIES, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 2007-1172.

United States Court of Appeals, Federal Circuit.

January 4, 2008.

Peter S. Herrick, of Miami, FL, argued for plaintiff-appellant.

Maame A.F. Ewusi-Mensah, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and David S. Silverbrand, Attorney.

Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

BRYSON, Circuit Judge.

Gilda Industries, Inc., imports toasted breads from Spain. Gilda began this action as a challenge to decisions of the United States Trade Representative regarding the compilation and maintenance of a "retaliation list" of imported products that includes toasted breads. The retaliation list comprises products for which the Trade Representative decided to suspend tariff concessions as a means of retaliating against the European Community for its ban on the importation of hormone-treated animals and meat. The Trade Representative placed toasted breads on the list in 1999 and has not removed that product from the list since that time. Gilda brought suit in the Court of International Trade, seeking to force the Trade Representative to remove toasted breads from the retaliation list and seeking to recover duties that Gilda has paid on imported toasted breads for the period that the retaliation list has been in effect.

The Court of International Trade dismissed Gilda's complaint for failure to state a claim upon which relief can be granted. On appeal, we affirmed the judgment of the trial court in substantial part, but we vacated and remanded for further proceedings to determine whether the Trade Representative had acted lawfully in exercising statutory responsibilities. Gilda Indus., Inc. v. United States, 446 F.3d 1271 (Fed.Cir.2006). On remand, the trial court concluded that the Trade Representative had acted lawfully in concluding that it was not necessary to revise the retaliation list. Gilda Indus., Inc. v. United States, No. 03-00203, 2006 WL 2884452 (Ct. Int'l Trade Oct. 10, 2006). The court entered final judgment in the case, again dismissing the complaint, on October 10, 2006.

Gilda thereafter sought to appeal the trial court's judgment by filing a notice of appeal, but the circumstances under which the appeal was noticed and events subsequent to the filing have given rise to the dispute that is the subject of this appeal. This appeal therefore does not deal with the merits of the underlying case, but with issues related to the timeliness of the appeal and in particular whether the trial court had jurisdiction to issue an order permitting the filing of an untimely notice of appeal.

I

After the trial court entered its order granting the government's motion to dismiss on October 10, 2006, Gilda had 60 days within which to file a notice of appeal. Gilda's counsel asserts that on December 11, 2006, the last day of that 60-day period, he logged on to the electronic filing website maintained by the Court of International Trade. He entered the information that Gilda was taking an appeal from the trial court's judgment and entered the required information to effect payment of the filing fee. However, he apparently logged off the website before reaching the final confirmation page. As a result, Gilda's notice of appeal was not recorded as having been filed on that day. The following day, when counsel realized he had not received the standard email notification that a filing had been received, counsel again logged on to the electronic filing website. Upon discovering that the notice of appeal had not been recorded as filed, counsel once again completed the electronic form to file the notice and made the required payment. This time, the filing was received and recorded as docketed by the Court of International Trade.

On December 19, 2006, this court docketed Gilda's appeal. That same day, Gilda filed in the Court of International Trade a motion under Rule 4(a)(5) of the Federal Rules of Appellate Procedure to extend the filing deadline for the notice of appeal to December 12, 2006, the date on which Gilda's notice of appeal was successfully filed and received by the trial court. The Court of International Trade, however, denied the motion, holding that it lacked jurisdiction over the case in light of the filing of the notice of appeal on December 12, 2006. On February 1, 2007, this court held that Gilda's December 12, 2006, notice of appeal was untimely filed and therefore dismissed the appeal. Gilda Indus., Inc. v. United States, 216 Fed.Appx. 973 (Fed. Cir.2007). After its appeal of the judgment was dismissed, Gilda appealed the trial court's order denying the motion to extend the filing deadline.

II

Ordinarily, the act of filing a notice of appeal confers jurisdiction on an appellate court and divests the trial court of jurisdiction over matters related to the appeal. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982); 20 James Wm. Moore, Moore's Federal Practice § 303.32[1] (3d ed.1997). That rule, however, does not extend to deficient notices of appeal. To the contrary, "[w]here the deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-appealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction." Ruby v. Sec'y of U.S. Navy, 365 F.2d 385, 389 (9th Cir.1966) (en banc); see also Rucker v. Dep't of Labor, 798 F.2d 891, 892 (6th Cir.1986) ("As a general rule, a district court loses jurisdiction over an action when a party perfects an appeal unless that appeal is untimely, is an appeal from a non-appealable non-final order, or raises only issues that were previously ruled upon in that case by the appellate court."); In re Grand Jury Proceedings, 795 F.2d 226, 231 (1st Cir.1986) (same); Arthur Andersen & Co. v. Finesilver, 546 F.2d 338, 340-41 (10th Cir.1976) (same). Professor Moore's treatise summarizes the point as follows:

A notice of appeal that is deficient because it is untimely or because it lacks the essential recitals does not transfer jurisdiction to the circuit court. If it is clear to the district court that the notice of appeal is deficient, it may disregard the purported notice and proceed with the case. Thus, if an appeal is filed after the filing deadline has passed and no extension is granted, the case may proceed in the district court.

20 Moore, supra, § 303.32[2][b][iv][A] (footnotes omitted); see also 16A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3950.1 (3d ed. 1999) ("The timeliness of the filing of the notice of appeal, as indicated, has come to be of critical importance in jurisdictional terms.").¹ The Supreme Court has recently emphasized the critical importance of a timely notice of appeal in conferring jurisdiction on an appellate court, stating in Bowles v. Russell, ___ U.S. ___, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007), "Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Because Gilda's notice of appeal was filed a day late, the notice of appeal was untimely. As such, it neither conferred jurisdiction on this court nor divested the trial court of jurisdiction to entertain...