United States of America v. Smith

Filing 83

ORDER that Plaintiff Robert F. Smith's request for a Certificate of Appealability is moot, re: 12-16801, as to 80 Notice of Appeal. Signed by Judge David G Campbell on 9/7/12. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff,

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No. CV-10-2358-PHX-DGC
ORDER

v.
Robert F. Smith,
Defendant.

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Defendant Robert F. Smith filed a request for a certificate of appealability of the

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Court’s order of June 18, 2012, which granted summary judgment to the United States on

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its action to reduce Mr. Smith’s federal tax assessments to judgment. Doc. 80; see

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Doc. 77.

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petitioner in a habeas corpus proceeding receive a certificate of appealability before

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appealing (Fed. R. App. P. 22(b)), but Mr. Smith appeals from a civil judgment. Federal

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Rule of Appellate Procedure 4(a) governs the filing of his appeal. Fed. R. App. P. 4(a);

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see U.S. v. Plechner, 577 F.2d 596 (9th Cir. 1978) (finding that Rule 4(a) governing the

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filing of appeals in civil cases applied to enforcement of a bond even when appealed from

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as part of a criminal proceeding).

Rule 22(b) of the Federal Rules of Appellate Procedure requires that a

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Under Rule 4(a)(1)(A), a notice of appeal must be filed with the district clerk

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within 30 days after the judgment or the order appealed from is entered. Fed. R. App. P.

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4(a)(1)(A). When, as here, the United States is a party, the notice of appeal may be filed

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within 60 days. Fed. R. App. P. 4(a)(1)(B). Mr. Smith filed his request on August 15,

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2012, less than 60 after the order he appeals from was entered, and the Clerk’s Office and

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the Ninth Circuit Court of Appeals have construed Mr. Smith’s request as a notice of

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appeal. Docs. 81, 82. The Court need take no further action. See United Nat=l Ins. Co. v.

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R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (“Once a notice of appeal takes

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effect, the district court loses jurisdiction over the matter placed before the appellate

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court.”).

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IT IS ORDERED:

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Plaintiff Robert F. Smith’s request for a Certificate of Appealability is

moot.
Dated this 7th day of September, 2012.

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