Thomas J. Dillon v. United States

184 F.3d 556, 44 Fed. R. Serv. 3d 626, 1999 U.S. App. LEXIS 16724, 1999 WL 511697

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 21, 1999
• Docket: 97-3138
• Status: Published

Opinions

NORRIS, J., delivered the opinion of the court, in which MARTIN, C. J., MERRITT, KENNEDY, NELSON, BOGGS, SILER, DAUGHTREY, MOORE, and COLE, JJ., joined. RYAN, J., (pp. 558-59), delivered a separate dissenting opinion, in which SUHRHEINRICH and BATCHELDER, JJ., joined. CLAY, J. (pp. 559-66), delivered a separate dissenting opinion, in which GILMAN, J., joined except for Part I, with GILMAN, J. (p. 566), also delivering a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

Pursuant to Fed. R. App. P. 35(a), a majority of the active judges of this court voted to rehear en banc Dillon v. United States, No. 97-3138, (6th Cir. Nov. 10, 1998) (unpublished), in an attempt to set forth the precise requirements imposed by Fed. R.App. P. 3(c) (contents of the notice of appeal). Relying upon another recent decision of this court, United States v. Webb, 157 F.3d 451 (6th Cir.1998) (per curiam), cert. denied, — U.S. —, 119 S.Ct. 2019, 143 L.Ed.2d 1031 (1999), the Dillon panel had dismissed petitioner’s appeal for lack of jurisdiction because the notice of appeal failed, as specified by Rule 3(c)(1)(C), to “name the court to which the appeal is taken.” We now hold that, while the requirements of Rule 3(c) are jurisdictional, see Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), in the sense that a notice of appeal must explicitly name the court to which an appeal is taken when there is more than one potential appellate forum, where only one avenue of appeal exists, Rule 3(c)(1)(C) is satisfied even if the notice of appeal does not name the appellate court. Under the latter circumstances, filing the notice of appeal with the clerk of the district court from whose judgment the appeal is taken has the practical effect of designating the appropriate court of appeals and thereby eliminating any possible confusion with respect to the appellate forum.

In the case now before us, the Sixth Circuit represented the only appellate court available to petitioner. See 28 U.S.C. § 2253(a) (in a proceeding under section 2255 before a district judge, the appeal shall lie in the court of appeals for the circuit in which the proceeding is held). Under our holding today, therefore, the notice of appeal was not defective because petitioner did not have a choice of forum and filed his notice of appeal in the district court that rendered judgment. Accordingly, we remand to the original panel for further proceedings.

In 1993, Rule 3(c) was amended in order to “reduce the amount of satellite litigation spawned by the Supreme Court’s decision in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).” Advisory Committee Notes to 1993 Amendments. While Torres specifically concerned the proper construction of Rule 3(c)(1)(A), it made clear that the entire rule was jurisdictional in nature. Id. at 315-16, 108 S.Ct. 2405. The 1993 amendments were implemented in an attempt to soften the practical effect of this holding. Rule 3(c)(4) now reads:

An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.

As the Advisory Committee Notes to the 1993 amendments observe, “if a court determines it is objectively clear that a party intended to appeal, there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward.” See also 16A Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction 3d § 3949.4 (“These new provisions should ... reduce substantially the number of appeals aborted for no reason.”).

Although the 1993 amendments were aimed at ameliorating the effect of Rule 3(c)(1)(A), we see no reason why their underlying rationale does not apply with equal force to Rule 3(c)(1)(C). When there is only one appellate forum available to a litigant, “there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward” if, through inadvertence, an appellant has failed to name the court to which the appeal is taken.

In reaching this conclusion, we are mindful that the Court in Torres cautioned, “although a court may construe the Rules liberally in determining whether they have been complied with, it may not waive the jurisdictional requirements of Rules 3 and 4, even for ‘good cause shown’ under Rule 2, if it finds that they have not been met.” Torres, 487 U.S. at 317, 108 S.Ct. 2405. It is not our intention in any way to “waive” the jurisdictional requirement that a notice of appeal designate the court to which the appeal is taken. However, when there is only one possible appellate forum, and no information or action contrary to the proper forum appears on the face of the papers, the filing of a notice of appeal has the practical effect of “naming” that forum. In contrast, when an appeal may be taken to more than one appellate court, failure to designate the court of appeal will result in dismissal of the appeal for lack of jurisdiction.¹

Petitioner’s appeal is re-instated and this cause is remanded for further proceedings to the panel of this court that originally considered it.

1 . For instance, some circuits have held that a claimant for black lung benefits may appeal in any circuit in which he or she worked and was exposed to danger. See, e.g., Hon v. O.W.C.P., 699 F.2d 441, 444 (8th Cir.1983). Similarly, 26 U.S.C. § 7482(a) vests jurisdiction over appeals from the Tax Court in all federal courts of appeal except for the federal circuit. See also 29 U.S.C. § 160(1) (permitting appeals from NLRB actions in various circuit courts). In other words, while relatively small as a percentage of appeals to this court, there are a significant number of cases that require explicit designation of the court of appeals in order to comply with Rule 3(c)(1)(C).