United States v. Stoerr, No. 11-2787; Third Circuit; opinion by Vanaskie, U.S.C.J.; filed August 28, 2012. Before Judges Ambro, Vanaskie and Aldisert. On appeal from the District of New Jersey. [Sat below: Judge Wigenton.] DDS No. 14-8-xxxx [22 pp.]

Norman Stoerr was convicted of participating in an illegal bid-rigging and kickback scheme in connection with his employment at Sevenson Environmental Services Inc. Sevenson, a nonparty to the underlying criminal proceeding, voluntarily compensated one of Stoerr’s victims, Tierra Solutions Inc. At Stoerr’s sentencing, Sevenson sought restitution under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A et seq., for the amount that it paid Tierra. The district court denied Sevenson’s request, instead ordering that Stoerr pay restitution to Tierra.

Although Sevenson acknowledges that it is not a party to Stoerr’s criminal proceedings, it asserts that it has a right to appeal the district court’s restitution order as a nonparty payer of compensation to a victim under the MVRA.

Held: Sevenson’s appeal is dismissed because, as a nonparty, it lacks standing to appeal. The MVRA does not imply a right of appeal by nonparty payers and no recognized exception permitting interested nonparties to appeal is applicable.

The court says that to have standing to appeal, an appellant must be aggrieved by the order from which it seeks to appeal. Ordinarily, only parties to a proceeding adversely affected by the judgment entered in that proceeding are aggrieved by the judgment. Accordingly, as a general matter, only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.

Courts have recognized that notwithstanding the rights reflected in the restitution statutes, crime victims are not parties to a criminal sentencing proceeding. If victims are nonparties to criminal proceedings, then Sevenson, who is a degree removed from victim status, is likewise a nonparty. The presumptive rule, therefore, is that Sevenson cannot appeal.

The court finds no reason to disturb the presumptive rule here. A restitution order is part of a defendant’s sentence. Permitting a nonparty to appeal a restitution order would reopen a criminal defendant’s sentence for the benefit of a private party. All courts of appeals that have addressed this issue have concluded that nonparties cannot directly appeal a restitution order entered against a criminal defendant.

The court agrees that a nonparty lacks standing to appeal a restitution order because it lacks a judicially cognizable interest in a criminal defendant’s sentence, and is thus not aggrieved by the defendant’s sentence. Although a restitution order may resemble a civil judgment in that it compensates a private party, it remains criminal in nature. Criminal punishment operates for the benefit of society as a whole. Therefore, restitution is largely for the benefit of the state rather than for a private party.

The court rejects Sevenson’s argument that the MVRA implies a right of appeal by nonparty payers, even though conferring nonparty payers with appellate rights may encourage third parties to compensate victims voluntarily. First, the MVRA gives no indication that it disturbs the default rule that only the government and the defendant can appeal a defendant’s sentence. Its omission of any language recognizing nonparty appellate rights counsels against permitting nonparty appeals.

Second, the court says it is especially hesitant to find an implied right of appeal by nonparty payers under the MVRA because Congress explicitly granted victims the right to petition the court of appeals for a writ of mandamus under the CVRA, but did not grant nonparty payers an analogous means to obtain court of appeals review under the MVRA. This suggests that Congress did not intend to permit appeals by nonparty payers.

Third, the MVRA’s statutory scheme indicates that Congress intended the government, rather than payers and victims, to be primarily responsible for ensuring proper restitution payments. Because the MVRA assigns the primary responsibility for ensuring proper restitution orders to the government, the court cannot infer from the MVRA that Congress intended to permit nonparty payers to appeal restitution orders.

The court also rejects Sevenson’s argument that because courts have recognized exceptions permitting interested nonparties to appeal, such an exception should be made here. It says courts have allowed interested nonparties to appeal in primarily civil, rather than criminal, matters. Sevenson cites to no precedent in which the U.S. Supreme Court or Third Circuit has allowed an exception to the rule against nonparty appeals in the context of a final criminal judgment.

Further, assuming that the exceptions permitting certain interested nonparties to appeal apply in the criminal context, none of the recognized exceptions permits Sevenson’s appeal. The Binker exception, the primary exception, permits nonparty appeals when, inter alia, the nonparty has a stake in the outcome of the proceedings that is discernible from the record. Since a nonparty does not have a judicially cognizable stake in a criminal defendant’s sentence, Sevenson cannot satisfy this criterion and cannot establish entitlement to appeal as an interested nonparty.

For appellant Sevenson — Lawrence S. Lustberg (Gibbons) and Minryu Kim and Alan J. Bozer, of the N.Y. bar (Phillips Lytle). For appellee Unites States — Mark E. Coyne, Chief, Appeals Division, U.S. Attorney’s Office, and Sharis A. Pozen, Acting Assistant Attorney General (did not enter an appearance), Scott D. Hammond, Deputy Assistant Attorney General (did not enter an appearance), John P. Fonte, John J. Powers III and Finnuala K. Tessier, of the D.C. bar, U.S. Department of Justice, Antitrust Division.