JURISDICTION ON APPEAL

Two recent Ninth Circuit decisions illustrate that some kinds of jurisdiction on appeal are more jurisdictional than others. One decision involved the failure to file an appeal on time. The other decision involved an appeal addressed to a court that had no jurisdiction to hear the appeal. Each decision involved an honest mistake by the appellant’s counsel. In one case, the Ninth Circuit saved the appeal. In the other, the Ninth Circuit dismissed the appeal, with potentially disastrous consequences for the appellant.

The case involving the jurisdictional time to file a notice of appeal concerned a death sentence. Washington v. Ryan ___ F.3d ___, (9th Cir. June 17, 2015) 2015 WL 3756463. The appellant, Washington was tried, convicted of murder and sentenced to death along with a co-defendant. The co-defendant filed a habeas corpus petition. The district court denied the petition, but on appeal the Ninth Circuit granted the co-defendant a new penalty-phase trial. Meanwhile, Washington filed his own habeas corpus petition on similar grounds, which the district court also denied. Under Fed. R. App. P. 4(a)(1)(A), Washington had thirty days to file his notice of appeal. Unfortunately, Washington's counsel made a calendaring error and filed the notice of appeal one day late.

The Ninth Circuit dismissed Washington's appeal on the ground that an appellate court has no jurisdiction to hear an untimely appeal. The court acknowledged that Washington was thus foreclosed by his lawyer’s negligence from likely obtaining the same relief from a death penalty verdict that a similarly-situated co-defendant had obtained, but concluded that lack of jurisdiction is fatal even in meritorious cases.

The Ninth Circuit also rejected Washington's argument that the district court should have granted his post-judgment motion to vacate and then reenter the judgment to enable him to file a timely notice of appeal. The Court explained while a district court might have discretion to grant such post-judgment relief to enable an untimely appeal, the district court could do so only in “extraordinary circumstances.” Counsel’s abandonment of the client might be such a circumstance, but mere negligence by counsel does not qualify as an extraordinary circumstance. Ironically, Washington might have been better off if his counsel had never bothered to file an appeal than if counsel tried and failed to file a timely appeal.

In a case where a life did not hang in the balance, Amity Rubberized Pen Company v. Market Quest Group, ___ F.3d ___ (9th Cir. July 13, 2015) 2015 WL 4174085, the lack of appellate jurisdiction did not prove fatal to the appeal. In that case, the district court held that the plaintiff’s patent claim was barred by res judicata. Fed. R. App. Proc. 3(c)(1)(C) requires that a notice of appeal “must name the court to which the appeal is taken.” The plaintiff filed notice of appeal naming the Ninth Circuit as the court to which the appeal was taken. But the Ninth Circuit had no jurisdiction to hear the appeal because 28 U.S.C. § 1295(a)(1) specifies that only the Federal Circuit has jurisdiction to hear appeals in patent cases. By the time the error was noticed, it was too late for the plaintiff to file a timely appeal addressed to the Federal Circuit, the only court with jurisdiction to hear the appeal.

Yet, rather than terminating the appeal for lack of jurisdiction, the Ninth Circuit found a way out. Because the misfiling was an honest mistake of counsel, the appellate court exercised its discretion under 28 U.S.C. § 1631---which allows a court to transfer a case from the wrong court to the right court “in the interest of justice”---and transferred the appeal to the Federal Circuit as if the appeal had been timely filed in that court to start with.

The Ninth Circuit explained that such a transfer would be in the interest of justice unless it was apparent that the appeal was frivolous or filed in bad faith. The Court distanced itself from the approach taken in some other circuits, in which the appellate court first “peeks at the merits” of the case to determine whether it is sufficiently meritorious to justify saving the appeal.

Thus, in these two cases the Ninth Circuit addressed two “jurisdictional” errors caused by honest mistakes by counsel. Yet the outcomes were different. One mistake foreclosed an apparently meritorious appeal involving a death penalty verdict, while the other permitted a patent case to proceed “in the interest of justice” without even “peeking at the merits” of the appeal.

In short, some types of appellate jurisdiction are more jurisdictional than others. Some jurisdictional mistakes can be corrected; others cannot. Of course, counsel should never take chances with notices of appeal: Always file on time and, in federal court, name the right court of appeal. Someone’s life may be at stake.