781 F.3d 342
6th Cir.2015Background
- Raymond Burch’s supervised-release revocation (Aug 21, 2014) gave him the right to appeal; Rule 4(b) sets a 14-day notice-of-appeal deadline and allows a district court to extend that deadline up to 30 days.
- Burch filed a notice of appeal and requested an extension on Sept 26, after the 14-day period had passed.
- The district court granted the extension on Oct 9, making the Sept 26 notice timely under circuit precedent.
- The government did not file an appeal or cross-appeal of the district court’s Oct 9 extension order.
- The government moved to dismiss Burch’s appeal in the Sixth Circuit, arguing the district court abused its discretion in granting the extension and therefore the appeal was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appellee may seek dismissal in the court of appeals of an appeal that was rendered timely by a district court’s postjudgment extension without having filed a cross-appeal from that extension order | Burch: district-court extension rendered his notice timely; the government’s motion to dismiss is procedurally improper because it failed to appeal the extension order | Government: may move to dismiss the appeal as untimely on the ground the district court abused its discretion in granting the extension; no cross-appeal required | Court: Government must file an appeal/cross-appeal to challenge the district court’s extension order; motion to dismiss is improper here |
Key Cases Cited
- United States v. Wrice, 954 F.2d 406 (6th Cir. 1992) (treats postjudgment district-court extension as rendering a late notice timely)
- Amatangelo v. Borough of Donora, 212 F.3d 776 (3d Cir. 2000) (appellee must appeal extension order; cannot obtain dismissal without cross-appeal)
- United States v. Madrid, 633 F.3d 1222 (10th Cir. 2011) (permitted motion to dismiss challenging extension order without cross-appeal)
- Greenlaw v. United States, 554 U.S. 237 (2008) (cross-appeal required to obtain affirmative relief for appellee)
- Jennings v. Stephens, 135 S. Ct. 793 (2015) (explains cross-appeal required when appellee seeks to lessen adversary’s rights)
- El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999) (Supreme Court has consistently enforced the cross-appeal requirement)