USA v. Raymond Burch, Jr.

Filing

PUBLISHED ORDER filed: The government's motion to dismiss the appeal [5229161-2] is DENIED. Decision for publication. Julia Smith Gibbons, Jeffrey S. Sutton (AUTHORING), and Raymond M. Kethledge, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0050p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

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No. 14-6232

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RAYMOND EARL BURCH, JR.,
Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 1:08-cr-00052-1—Thomas B. Russell, District Judge.
Decided and Filed: March 20, 2015
Before: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.
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COUNSEL
ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati,
Ohio, for Appellant.
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ORDER
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SUTTON, Circuit Judge. With a district court’s permission, Raymond Earl Burch, Jr.,
appealed the revocation of his term of supervised release after the fourteen-day deadline for
filing a notice of appeal. The government moves to dismiss the appeal, claiming that the district
court abused its discretion in excusing the notice’s untimeliness. What looks like a simple
extension motion (and a simple objection to it) raises a not-so-simple question: Must the United

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States file a cross-appeal to challenge the order on appeal or may it challenge the order through a
motion to dismiss?
Before answering the question, it is worth filling in a few more details about what
happened below. On August 21, 2014, the district court revoked Burch’s term of supervised
release. See 18 U.S.C. § 3583(e). Burch had the right to challenge the revocation on appeal, see
id. §§ 3557, 3742(a), though the statute does not specify the time within which he must appeal,
id. § 3742(a). The relevant rules of procedure provide the deadline. Rule 4 of the Federal Rules
of Appellate Procedure gives a criminal defendant fourteen days to file a notice of appeal, Fed.
R. App. P. 4(b)(1)(A), and permits a district court to extend the time to file a notice for up to
thirty additional days, id. 4(b)(4). On September 26, after the fourteen-day deadline had come
and gone, Burch filed a notice of appeal and a request for an extension of time. The district court
granted the requested extension on October 9, rendering his September 26 notice of appeal
timely. See id.; United States v. Wrice, 954 F.2d 406, 409−10 (6th Cir. 1992). The government
did not file an appeal (or cross-appeal) of the district court’s October 9 order. It now moves to
dismiss Burch’s appeal as untimely, alleging that the district court abused its discretion in
granting the extension.
In the normal course, when an appellant files a notice of appeal after the deadlines
specified by Appellate Rule 4, the appellee may file a motion to dismiss the untimely appeal with
this court. Fed. R. App. P. 27; see, e.g., Hobbs v. Cnty. of Summit, 552 F. App’x 517, 519 (6th
Cir. 2014) (per curiam); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 267 (6th Cir. 1998).
But what happens when the target of the appellee’s argument is a prior order of the district
court—in this instance its decision to grant an extension of time to the appellant to file his notice
of appeal?
Two circuits have considered the situation and have come to different views. In a brief
opinion, the Third Circuit rejected the motion to dismiss (in a civil case) and concluded that the
appellee must “appeal from the order granting the extension of time to appeal.” Amatangelo v.
Borough of Donora, 212 F.3d 776, 780 (3d Cir. 2000). That is to say, in the absence of a
separate appeal (or cross-appeal) challenging the granting of the extension motion, the court
concluded that it lacked authority to dismiss the appeal.

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The Tenth Circuit took the opposite position (in a criminal case) and permitted a motion
to dismiss. “The office of a cross-appeal,” it observed, “is to give the appellee more than it
obtained by the lower-court judgment.” United States v. Madrid, 633 F.3d 1222, 1225 (10th Cir.
2011). But in the context of a granted extension, the court reasoned, no cross-appeal was needed
because “the government was not seeking alteration of the judgment below in its favor.” Id.
We agree with the Third Circuit and offer a few more reasons for taking this path. The
starting point is that litigants dissatisfied with a district court’s judgment or order normally must
file an appeal challenging the decision. Neither the relevant federal statute nor Appellate Rules 3
or 4 refer to cross-appeals by name. They refer to appeals, and a party dissatisfied with a district
court’s order is well-served to file one, whether labeled an appeal or cross-appeal, within the
relevant timelines. Nor is there anything unusual about time-extension orders that suggests a
different rule should apply to them. It may be unusual for parties to challenge time-extension
orders (and still more unusual for the government to do so, see 18 U.S.C. § 3742(b)). But there
is nothing awkward about treating the order like anything else that the district court did and thus
something that must be challenged through a notice of appeal. Whether a time-extension order
happens at the beginning of the case or at the end, it remains an order readily challengeable
through a notice of appeal.
In this instance, the district court issued an order granting Burch more time to file his
notice of appeal from the judgment. Although the government remained satisfied with the rest of
the judgment, it did not agree with the district court’s exercise of discretion in the ancillary order.
When a party wants an appellate court to reverse a trial court’s postjudgment order, it
customarily files an appeal with respect to that order. See, e.g., Decker v. GE Healthcare Inc.,
770 F.3d 378, 388 (6th Cir. 2014); Scott v. Metro. Health Corp., 531 F. App’x 647, 647 (6th Cir.
2013). So too here: The government should have appealed from the district court’s order if it
thought the court abused its discretion in granting Burch’s motion for an extension of time to file
an appeal.
This approach also respects the Supreme Court’s directives about when a (largely)
prevailing party should file an appeal or cross-appeal. “[F]rom its earliest years,” the Court “has
recognized that it takes a cross-appeal to justify a remedy in favor of an appellee,” Greenlaw v.

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United States, 554 U.S. 237, 245–46 (2008), or to “attack” a district-court “decree with a view to
. . . lessening the rights of [its] adversary,” Jennings v. Stephens, 135 S. Ct. 793, 798 (2015)
(quoting United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)). In this case, where
the district court extended Burch’s time to file a notice of appeal, the government’s motion
“attack[s]” the district court’s order as an abuse of discretion with a view to lessening Burch’s
rights—indeed his right to appeal at all. Id.; cf. Turi v. Main St. Adoption Servs., LLP, 633 F.3d
496, 505 (6th Cir. 2011). As the government’s goal is to restrict Burch’s right to appeal and not
to “support” the rest of the district court’s judgment, see Jennings, 135 S. Ct. at 798, the
government should have appealed the district court’s order beforehand.
This approach also respects the settings where we do dismiss appeals by motion. One
such setting is when we lack subject-matter jurisdiction to hear the appeal. There, however, the
defect—whether a missed notice-of-appeal deadline in a civil case or some criminal cases, an
absence of jurisdiction at the trial level, or some other such problem—is not forfeitable.
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). There, indeed, we do not even need a
motion to dismiss, much less a cross-appeal, to notice the error; a mere whisper at oral argument
will do the trick, as will a court’s identification of the problem on its own. Id. We also permit
motions to dismiss (as opposed to appeals or cross-appeals) that seek to enforce a district court’s
order, as when a trial court has approved a plea agreement that waives the defendant’s right to
appeal. See, e.g., United States v. Toth, 668 F.3d 374, 378 (6th Cir. 2012). And we permit
motions to dismiss where a criminal defendant has filed an untimely notice of appeal without
district court authorization. See, e.g., United States v. White, 876 F.2d 104 (6th Cir. 1989)
(table). But in none of those settings is the moving party seeking to reverse a district court order.
That, however, is just what we have here: a request to reverse the district court’s decision to
extend the time for filing a notice of appeal.
No doubt this approach differs from the approach of the Tenth Circuit, which reviewed a
district court’s time-extension order through the government’s motion to dismiss and did not
require an appeal or cross-appeal from that order. Madrid, 633 F.3d at 1225. But the Tenth
Circuit may have misread Supreme Court precedent in determining when an appellee must file
an appeal or cross-appeal. Under the Tenth Circuit’s reading, a cross-appeal is required only

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when the appellee wants “more than it obtained by the lower-court judgment.” Id. The court
thus considered the government’s attack on the district court’s time-extension order uncovered
by the cross-appeal rule because “the government was not seeking alteration of the judgment
below in its favor.” Id. But Jennings makes clear that a cross-appeal is required when an
appellee attacks an order with a view toward “enlarging his own rights thereunder or of lessening
the rights of his adversary.” 135 S. Ct. at 798 (emphasis added). The latter possibility is this
case.
That leaves the question whether we may overlook the government’s failure to file a
cross-appeal and address the merits of its motion anyway. We think not, as the requirement is
mandatory and consistently followed. “[I]n more than two centuries of repeatedly endorsing the
cross-appeal requirement, not a single [Supreme Court case] has ever recognized an exception to
the rule.” El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 480 (1999). The government
offers no reason to forge a new exception here.
For these reasons, we deny the government’s motion to dismiss the appeal.
ENTERED BY ORDER OF THE COURT

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Deborah S. Hunt, Clerk