Friday, March 04, 2005

Some Nuts and Bolts of Appellate Practice

United States v. Mario Howard Lloyd, Case No. 03-3334 (03/01/2005): The Court stated its strong disapproval of a litigation strategy that has become too common. Instead of filing its appellee brief, the government filed a motion to dismiss the appeal for lack of appellate jurisdiction.

If an appellee has genuine doubts as to appellate jurisdiction, it should, pursuant to Circuit Rule 3(c)(1), file a counter docketing statement within 14 days after the appellant files the initial docketing statement. In addition, the appellee’s responsive brief must, if warranted, challenge the appellant’s jurisdictional statement, and the appellee may file a motion to dismiss along with its responsive brief. But a motion to dismiss should not be used as a substitute for the responsive brief. When so used, it creates extra work for the Court and delays the briefing of the merits, which is especially troublesome if the jurisdictional objection is found not well taken.

As it turned out, the government’s jurisdictional argument was not well taken. Nonetheless, the Court viewed Lloyd’s filing in the district court as a transparent attempt to circumvent the requirement that he receive permission from the Court of Appeals before filing a second motion under 28 U.S.C. sec. 2255. The Seventh Circuit held that it had jurisdiction to hear the appeal, but the district court had no subject matter jurisdiction and should have dismissed the filing on that basis.

Defense counsel are rarely in the appellee position. But this case should be a good reminder to scrutinize the initial docketing statement and file a counter statement if necessary. Although the Court does not comment on the practice once a counter statement is filed, one can expect that filing a counter statement will elicit an order from the Court asking the appellant to clarify the jurisdictional issue.