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You Call That a Notice of Appeal?
Special to Law.com
August 20, 2007
Howard J. Bashman
Related: Bashman Archive
By far the most common way that a case reaches appeal is via the filing of a notice of appeal -- one of the easiest court filings to prepare in the federal judicial system, sometimes consisting of as little as a single sentence of text.Federal Rule of Appellate Procedure 3(c)(1) provides that a notice of appeal must specify: (a) the party or parties taking appeal; (b) the judgment or order being appealed from; and (c) the court to which the appeal is being taken. In theory, satisfying those requirements sounds simple enough, although there are some cases where deciding which parties are seeking to appeal, and the level of specificity with which to identify the decisions being appealed from, can prove challenging.
Despite the relative simplicity of drafting and filing a notice of appeal, sometimes pro se litigants and even licensed attorneys manage to foul up the process. In some important but limited respects, federal appellate courts tend to be forgiving of such mistakes so long as at least the functional equivalent of a notice of appeal is filed within the time provided. For example, if a pro se litigant fails to file a notice of appeal within the time provided but, within that same period, files an appellate brief that identifies who is appealing, from what they are appealing from, and the court that they are appealing to, the brief can be treated as a notice of appeal.
Yet when it comes to forgiving deficient notices of appeal, federal appellate courts have their limits, as two recent rulings vividly demonstrate. Just over one year ago, the 3rd U.S. Circuit Court of Appeals considered a case in which a criminal defendant sought to appeal from his judgment of conviction and sentence. Unfortunately for that defendant, the defense lawyer made the mistake of electronically filing in that case a notice of appeal pertaining to another client, who previously appealed to the 3rd Circuit in a separate case. Of course, that means the notice of appeal failed to correctly identify who was appealing, or from what they were appealing.
The 3rd Circuit -- confronted with a notice of appeal that bore the caption of a different case, identified an appellant who was not even a party to the case in which the notice of appeal was filed, and identified orders being appealed from that had not been entered in the case actually being appealed -- held that the notice of appeal was ineffective to accomplish an appeal in the case in which it was electronically filed by mistake.The conclusion to the 3rd Circuit's opinion in that case began with a quote from the Farmers' Almanac: "To err is human, but to really foul things up requires a computer."
The 1st U.S. Circuit Court of Appeals confronted some of these same concerns in a decision released just last month. At issue was whether the payment of the appellate filing fee within the time provided for appeal could substitute for the timely filing of a notice of appeal in the absence of any notice of appeal actually having been filed. Notwithstanding the cliché that "money talks," the 1st Circuit didn't buy this particular argument.
According to the 1st Circuit's opinion, the check used to pay the appellate filing fee "carried the notation 'Notice of Appeal re: Berenice Sueiro.'" Thus, the check itself evidenced the intent to appeal, although it did not name any of the parties who were seeking to appeal, because Sueiro was lead plaintiff while the filing fee payment was made on behalf of the defendants.
The 1st Circuit ruled that the check was insufficient to accomplish an appeal on behalf of the defendants. According to the court, "the submission of a check to the clerk in the amount of the filing fee, even with a legend on the check, is not the functional equivalent of a notice of appeal." The 1st Circuit also refused to overturn the district court's rejection of defendants' argument that the district court's electronic filing system had somehow "eaten" their notice of appeal, perhaps in the same manner that a dog eats one's homework.
CONCLUSION
Drafting an effective notice of appeal may seem deceptively easy, but unfortunately the consequence of failing to file an adequate notice of appeal within the applicable deadline is harsh: the unavailability of appellate review. And even the most meritorious appeal cannot succeed if appellate review is not available due to the failure to file an effective notice of appeal.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
