Hogg v. United States, 18745.
| Decision Date | 28 May 1969 |
| Docket Number | No. 18745.,18745. |
| Citation | 411 F.2d 578 |
| Parties | James Steven HOGG, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard M. Roberts, Atty., Dept. of Justice, Washington, D. C., for appellant; Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Harry Marselli, Stuart A. Smith, Attys., Dept. of Justice, Cline, U. S. Atty., Lexington, Ky., of counsel.
S. Russell Smith, Louisville, Ky., for appellee; Kirby A. Scott, M. K. Gilbert, III, Louisville, Ky., on brief; Smith & Smith, Louisville, Ky., of counsel.
Before O'SULLIVAN, PHILLIPS and COMBS,* Circuit Judges.
This appeal presents the question of whether the District Court had jurisdiction to strike the notice of appeal of the United States in a tax case on the ground that it was not properly authorized. The notice was filed by the United States Attorney, who was one of the attorneys of record, at the direction of an attorney in the Tax Division of the Department of Justice who claims that he had been delegated the power to authorize such filings. The District Court struck the notice of appeal on the ground that at the time of its filing the Solicitor General had not authorized an appeal.
The action of the District Court which gives rise to this appeal occurred in post-trial proceedings in a civil tax refund suit. The jury returned a verdict in favor of the taxpayer on August 2, 1967. A judgment was rendered directing a refund of income taxes plus interest. On September 14, 1967, the United States moved for a new trial and requested that the hearing on its motion be deferred until not less than 30 days after it received a copy of the transcript of the trial proceedings. On November 15, 1967, the District Court conducted a hearing on the motion for a new trial and overruled it, rejecting the Government's request that the hearing be postponed until a transcript of the trial proceedings became available.
A timely notice of appeal in proper form was filed on behalf of the United States on January 8, 1968. It is this notice of appeal, filed pursuant to Rule 73 on the Fed.R.Civ.P.,1 which is the center of controversy on the present appeal.
A motion was made in the District Court for an extension of time for filing the record and docketing the appeal in this Court, on the ground that the trial transcript was not available from the court reporter and that, due to a backlog, the court reporter would not be able to complete the transcript until the spring of 1968.2 The transcript was necessary, the Government alleged, because:
"In order for the Solicitor General to direct the filing of a record with the Sixth Circuit Court of Appeals, he must examine a transcript of the trial proceedings well in advance of the deadline for filing such record."
The District Court granted the Government's motion and extended the time for filing the record and docketing the appeal until April 7, 1968.
After this extension had been granted, the taxpayer filed a motion in the District Court to strike and expunge from the record the notice of appeal, pursuant to Rule 11, Fed.R.Civ.P. This motion of the taxpayer was sustained by the District Court on March 19, 1968. The order from which the present appeal is taken provided that the notice of appeal "is hereby stricken and expunged from the record" and directed that the clerk of the District Court not prepare for transmittal or transmit the record to the Court of Appeals.
A timely notice of appeal was filed by the United States on May 13, 1968, from the order of the District Court striking the earlier notice of appeal. The taxpayer then filed a motion in this Court to dismiss this "purported appeal." On June 7, 1968, this Court entered an order...
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...* * * the Court of Appeals' appellate jurisdiction and is not within the jurisdiction of the District Court. * * *" Hogg v. United States, C.A.6th (1969), 411 F.2d 578, 580. 1 One month after the defendant filed its aforementioned motion, and subsequent to the preparation of this opinion, t......
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