Green v. Drug Enforcement Admin.

• Decision Date: 19 May 2010
• Docket Number: No. 07-15334.,07-15334.
• Citation: 606 F.3d 1296
• Parties: Michael Joe GREEN, Johnny James Brown, Aletha Johnson, Plaintiffs-Appellants,v.DRUG ENFORCEMENT ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

606 F.3d 1296

Michael Joe GREEN, Johnny James Brown, Aletha Johnson, Plaintiffs-Appellants,v.DRUG ENFORCEMENT ADMINISTRATION, Defendant-Appellee.

No. 07-15334.

United States Court of Appeals Eleventh Circuit.

May 19, 2010.

COPYRIGHT MATERIAL OMITTED

Christopher Ashley Ford, Tuskagee, AL, Joe Morgan Reed, Montgomery, AL, for Plaintiffs-Appellants.

Tommie Brown Hardwick, John T. Harmon, Montgomery, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT, EDMONDSON and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

Michael Green, Johnny Brown, and Aletha Johnson (collectively “Green”) appeal the district court's order granting the Drug Enforcement Administration's (the “DEA”) motion to dismiss their claim that the DEA lacked jurisdiction over property the DEA seized and then forfeited to the United States in a civil administrative forfeiture proceeding. We dismiss the appeal for lack of jurisdiction, as it was untimely filed.

I.

During a traffic stop on December 6, 2006 in Montgomery, Alabama, Montgomery Police Department officers seized $32,353 from the stopped car based on probable cause that the money was furnished or intended to be furnished for the purchase of illegal drugs.¹ On December 29, 2006, Green brought suit against the City of Montgomery in the Circuit Court of Montgomery County, claiming ownership of the seized money and seeking its return. Meanwhile, DEA commenced an in rem civil administrative forfeiture proceeding, and gave Green notice of the proceeding and of his right to file a claim to the money.

Green chose not to file a claim; instead, he sued the DEA in the United States District Court for the Middle District of Alabama, seeking an order staying the forfeiture proceeding and returning the money on the ground that the DEA lacked jurisdiction over the money due to the lawsuit pending in the Montgomery County Circuit Court. The DEA moved the court to dismiss Green's complaint on the ground that challenging the agency's jurisdiction over the money was a challenge to the merits of the administrative proceeding, which federal courts lacked jurisdiction to review. The district court granted the DEA's motion and entered judgment for the DEA the same day, August 17, 2007.

Ten days later, on August 27, Green moved the district court for a seven-day extension of time to file a motion for reconsideration. The court granted the motion on August 29. Green filed his motion for reconsideration on September 6, and the district court denied it in an order entered on September 10. Green filed his notice of appeal on November 7, 2007.

II.

Green's post-judgment motions created the jurisdictional defect that prevents us from reaching the merits of this case: Green filed his motion for reconsideration out of time; thus, the motion failed to toll the time for filing a notice of appeal. Consequently, the notice of appeal was untimely.

A.

Before we can properly address the jurisdictional issue in this case, we must resolve two ambiguities created by inartful drafting in Green's motion for reconsideration and notice of appeal. First, the document Green filed in the district court on September 6 was styled a “Motion to Reconsider,” but did not specify the Federal Rule of Civil Procedure pursuant to which it was made. “The reports are filled with cases in which litigants filed post-judgment motions to ‘reconsider’.... The lower courts have almost without exception treated these as [Federal] Rule [of Civil Procedure] 59 motions regardless of their label.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 68, 103 S.Ct. 400, 407, 74 L.Ed.2d 225 (1982) (per curiam) (Marshall, J., dissenting). The commentators agree: “Rule 59(e) ... include[s] motions for reconsideration.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed.1995). In addition, both parties analyzed the motion to reconsider as a Rule 59(e) motion in their responses to a jurisdictional question posed by this court. Accordingly, the “Motion to Reconsider” filed on September 6 is best construed as a Rule 59(e) motion to alter or amend judgment.

Second, Green's notice of appeal indicated that he was appealing “the order ... granting the defendant's motion to dismiss for lack of jurisdiction, on September 10, 2007,” but no such order issued on that date. The order granting the DEA's motion to dismiss was entered on August 17. The September 10 motion merely denied Green's motion for reconsideration. When it is abundantly clear that the party intended to appeal an order not explicitly referenced in the notice of appeal, we will consider that order. See KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir.2006). Here, both parties' briefs on appeal focus almost exclusively on the merits of the motion to dismiss granted in the August 17 order, not the September 10 order denying reconsideration. Furthermore, in response to our jurisdictional question, both parties asserted that the notice of appeal was actually appealing the August 17 order. We construe the notice of appeal accordingly. Having clarified Green's filings, we turn to the jurisdictional problem.

B.

“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007). When a United States agency is a party to a suit, the notice of appeal must be filed within sixty days after the entry of the judgment or order being appealed. Fed. R.App. P. 4(a)(1)(B).² This period begins running the day after the order being appealed is entered and includes weekends and holidays. See Fed. R.App. P. 26(a)(1). A timely filed Rule 59(e) motion to alter or amend a judgment (among other motions) tolls the time limit in which to appeal. Fed. R.App. P. 4(a)(4)(A).

A party must file a motion to alter or amend a judgment no later than ten days after the judgment at issue is entered. Fed.R.Civ.P. 59(e) (2007). Because this period is less than eleven days, it begins running the day after the judgment is entered and does not include Saturdays, Sundays, or holidays. Fed.R.Civ.P. 6(a)(1) (2007). To help preserve the finality of judgments, a court may not extend the time to file a Rule 59(e) motion. Fed.R.Civ.P. 6(b)(2).

Because Rule 6(b)(2) prohibits extending the time to file a Rule 59(e) motion, the district court's grant of Green's motion for extension of time to file his motion for reconsideration did nothing to toll the time in which he had to file his Rule 59(e) motion. Accordingly, Green had ten days (not including weekends or holidays) from the entry of the August 17 judgment-that is, until August 31-in which to file his motion for reconsideration. He actually filed his motion for reconsideration on September 6, which was untimely. “Untimely motions under Rules 59 and 60 will not toll the time for filing an appeal.” Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11th Cir.1996) (per curiam). Therefore, Green's sixty-day window in which to appeal began to run on August 18, the day after the August 17 judgment was entered. That window closed on October 16, but Green did not file his notice of appeal until November 7, eighty-one days after the window to appeal opened.

The Supreme Court's recent decisions in Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), and Bowles do not alter our disposition. In Kontrick, which involved a Chapter 7 bankruptcy proceeding, a creditor filed a complaint objecting to the debtor's discharge. The complaint was filed beyond the sixty-day window provided for in Bankruptcy Rule 4004(a) and without receiving an extension of time as provided in Bankruptcy Rule 9006(b). Kontrick, 540 U.S. at 446-48, 124 S.Ct. at 910-11. The Supreme Court observed that “[o]nly Congress may determine a lower federal court's subject-matter jurisdiction.” Id. at 452, 124 S.Ct. at 914. The bankruptcy time limit was judicially created; it was not based on a corresponding statutory time limit. Thus, it was merely a claim-processing rule and could not be jurisdictional in nature. Id. at 453-54, 124 S.Ct. at 914-15. Moreover, because claim-processing rules are not jurisdictional, such rules, “even if unalterable on a party's application, can nonetheless be forfeited if the party asserting the rule waits too long to raise the point.” Id. at 456, 124 S.Ct. at 916.

In Eberhart, the Supreme Court applied the same reasoning to a criminal defendant's untimely but unobjected-to motion for a new trial under Federal Rule of Criminal Procedure 33, holding that the time limit to file a Criminal Rule 33 motion-and the corresponding limit on a district court's ability to extend that time limit found in Federal Rule of Criminal Procedure 45-were not jurisdictional, but rather were claim-processing rules. Eberhart, 546 U.S. at 15-16, 126 S.Ct. at 405-06. The Court noted that “Federal Rule of Criminal Procedure 45(b) and Bankruptcy Rule 9006(b) are both ‘modeled on Federal Rule of Civil Procedure 6(b).’ ” Id. at 19, 126 S.Ct. at 407 (quoting Kontrick, 540 U.S. at 456 n. 10, 124 S.Ct. at 916 n. 10).

In Bowles, though, the Supreme Court reconfirmed the jurisdictional nature of the thirty- and sixty-day time windows for filing a notice of appeal in a civil case, found in Appellate Rule 4(a). The time limits in Appellate Rule 4(a) are based on the statutory time limits for filing a notice of appeal found in 28 U.S.C. § 2107, distinguishing them from the claim-processing rules at issue in Kontrick and Eberhart. See Bowles, 551 U.S. at 208, 127 S.Ct. at 2363. And because the time limit for filing a notice of appeal is jurisdictional, a party “cannot rely on forfeiture or waiver to excuse his lack of compliance with the statute's time limitations.” Id. at 213, 127 S.Ct. at 2366....