Weisberg v. U.S. Department of Justice

D.C. Circuit

Weisberg v. U.S. Department of Justice

763 F.2d 1436, 246 U.S. App. D.C. 175

CourtCourt of Appeals for the D.C. Circuit

DecidedJune 4, 1985

DocketNos. 82-1229, 82-1274, 83-1722 and 83-1764

StatusPublished

Cited by3 cases

This text of 763 F.2d 1436 (Weisberg v. U.S. Department of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Weisberg v. U.S. Department of Justice, 763 F.2d 1436, 246 U.S. App. D.C. 175 (D.C. Cir. 1985).

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Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge BORK.

PER CURIAM:

This motion for rehearing grows out of what was, at bottom, a FOIA case that also contained a less substantial contract claim against the Department of Justice. We decided all issues on appeal in favor of the Department of Justice, see Weisberg v. Department of Justice, 745 F.2d 1476 (D.C. Cir.1984), whereupon Mr. Weisberg peti[176]*176tioned for rehearing. After the petition was filed, we ordered, sua sponte, briefing on the question of the effects, if any, of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25 (1982) (“1982 Act”), on this court’s jurisdiction over this case. The 1982 Act established the United States Court of Appeals for the Federal Circuit and conferred upon that court exclusive jurisdiction over appeals of several categories of cases including those involving patents and government contract claims. Specific reference was made in our order to section 403(e) of the 1982 Act, which provides: “Any case in which a notice of appeal has been filed in a district court of the United States prior to the effective date of this Act shall be decided by the court of appeals to which the appeal was taken.” Id. at 58.

The jurisdictional issue has now been fully briefed. In its submission, the Department of Justice maintains that, since a notice of appeal was filed prior to the effective date of the 1982 Act, this court’s jurisdiction is not affected by that statute. Mr. Weisberg demurs, arguing that that notice of appeal was with regard to issues over which this court had no jurisdiction. He maintains that only a later filing of notices of appeal, after the effective date of the 1982 Act and after the District Court had vacated its earlier orders and changed its position on Mr. Weisberg's contract claim, was effective to grant jurisdiction; thus, he concludes, this court’s jurisdiction is divested by the 1982 Act.

We need not determine whether we would have had jurisdiction had we heard this case at the time of the first filing. We ground our decision instead on the literal language of the 1982 Act. That statute by its terms simply does not apply to “[a]ny case where a notice of appeal had been filed” prior to the measure's effective date. A notice of appeal was filed before that date, which is all that is required.

* Whatever the jurisdictional status at the time the original notice was filed, we did, under any analysis not involving the Federal Courts Improvement Act, have jurisdiction at the time of our decision, and by virtue of section 403(e), the 1982 Act does not destroy that jurisdiction.

Congress provided a rather detailed scheme for the orderly transition of jurisdiction over the appeals of certain claims to the United States Court of Appeals for the Federal Circuit. See id. at 57-58. One [177]*177part of that scheme depended on the existence of a notice of appeal. We cannot conclude that Congress intended to require that such notice be valid in the sense that the issue appealed be within the proper jurisdiction of the court to which the appeal was taken. Such a conclusion would replace the bright-line test of the existence of a notice of appeal, a test which provides clear guidance in the transfer of jurisdiction, with a murky test requiring a legal determination of the validity of the notice of appeal.

For the foregoing reasons, the petition . for rehearing is

Denied.

The dissent relies on Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982), for the proposition that the early notice of appeal on which we base our conclusion cannot carry that burden. Griggs does state that a notice of appeal, filed while there is a pending motion under Fed.R.Civ.P. 59, has no effect to transfer jurisdiction from the district court to the court of appeals; "it is as if no notice of appeal were filed at all." Id. at 61, 103 S.Ct. at 403. However, we do not believe that the Griggs holding controls our decision here. We are not faced with the spectre of a United States District Court and a Court of Appeals asserting jurisdiction over a case simultaneously, which was of course the concern informing the 1979 amendments to the Federal Rules of Appellate Procedure and the situation specifically before the Court in Griggs. Rather, we confront the much different issue of the channeling mechanism in the Federal Courts Improvement Act of 1982 as to whether an appeal will be heard by the traditional appellate forum or by the newly created Court of Appeals for the Federal Circuit. We also note in this respect that Griggs was decided after the passage of the Federal Courts Improvement Act, and thus Congress could not, of course, be charged with an awareness of Griggs’ teaching in fashioning its bright line notice-of-appeal test in section 403. Section 403(e) of that Act requires merely that a notice of appeal have been filed. It simply does not require an effective notice of appeal, and we see no reason to read Griggs' teaching into this entirely disparate setting. We note in this regard that Griggs does not state that the filing of a premature notice of appeal is not a filing of a notice of appeal at all but merely that it is "as if' no notice had been filed. The use of "as if’ clearly recognizes that it was a notice of appeal that was filed, while indicating that it is to be given no jurisdictional effect. To carry the timing requirements of Griggs over to the case at hand would read more into the requirements of section 403(e) than is in fact there.

We wish to emphasize the narrow scope of our holding. Our decision should not be read in any fashion as an interpretation of Fed.R. App.P. 4 or as disagreeing with any of the cases interpreting that rule. That issue and the accompanying body of law are simply not before us. We limit ourselves narrowly and solely to an interpretation of the specific, channeling requirements of section 403(e) of the Federal Courts Improvement Act.

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Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge BORK.

PER CURIAM:

This motion for rehearing grows out of what was, at bottom, a FOIA case that also contained a less substantial contract claim against the Department of Justice. We decided all issues on appeal in favor of the Department of Justice, see Weisberg v. Department of Justice, 745 F.2d 1476 (D.C. Cir.1984), whereupon Mr. Weisberg peti[176]*176tioned for rehearing. After the petition was filed, we ordered, sua sponte, briefing on the question of the effects, if any, of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25 (1982) (“1982 Act”), on this court’s jurisdiction over this case. The 1982 Act established the United States Court of Appeals for the Federal Circuit and conferred upon that court exclusive jurisdiction over appeals of several categories of cases including those involving patents and government contract claims. Specific reference was made in our order to section 403(e) of the 1982 Act, which provides: “Any case in which a notice of appeal has been filed in a district court of the United States prior to the effective date of this Act shall be decided by the court of appeals to which the appeal was taken.” Id. at 58.

The jurisdictional issue has now been fully briefed. In its submission, the Department of Justice maintains that, since a notice of appeal was filed prior to the effective date of the 1982 Act, this court’s jurisdiction is not affected by that statute. Mr. Weisberg demurs, arguing that that notice of appeal was with regard to issues over which this court had no jurisdiction. He maintains that only a later filing of notices of appeal, after the effective date of the 1982 Act and after the District Court had vacated its earlier orders and changed its position on Mr. Weisberg's contract claim, was effective to grant jurisdiction; thus, he concludes, this court’s jurisdiction is divested by the 1982 Act.

We need not determine whether we would have had jurisdiction had we heard this case at the time of the first filing. We ground our decision instead on the literal language of the 1982 Act. That statute by its terms simply does not apply to “[a]ny case where a notice of appeal had been filed” prior to the measure's effective date. A notice of appeal was filed before that date, which is all that is required.

* Whatever the jurisdictional status at the time the original notice was filed, we did, under any analysis not involving the Federal Courts Improvement Act, have jurisdiction at the time of our decision, and by virtue of section 403(e), the 1982 Act does not destroy that jurisdiction.

Congress provided a rather detailed scheme for the orderly transition of jurisdiction over the appeals of certain claims to the United States Court of Appeals for the Federal Circuit. See id. at 57-58. One [177]*177part of that scheme depended on the existence of a notice of appeal. We cannot conclude that Congress intended to require that such notice be valid in the sense that the issue appealed be within the proper jurisdiction of the court to which the appeal was taken. Such a conclusion would replace the bright-line test of the existence of a notice of appeal, a test which provides clear guidance in the transfer of jurisdiction, with a murky test requiring a legal determination of the validity of the notice of appeal.

For the foregoing reasons, the petition . for rehearing is

Denied.

The dissent relies on Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982), for the proposition that the early notice of appeal on which we base our conclusion cannot carry that burden. Griggs does state that a notice of appeal, filed while there is a pending motion under Fed.R.Civ.P. 59, has no effect to transfer jurisdiction from the district court to the court of appeals; "it is as if no notice of appeal were filed at all." Id. at 61, 103 S.Ct. at 403. However, we do not believe that the Griggs holding controls our decision here. We are not faced with the spectre of a United States District Court and a Court of Appeals asserting jurisdiction over a case simultaneously, which was of course the concern informing the 1979 amendments to the Federal Rules of Appellate Procedure and the situation specifically before the Court in Griggs. Rather, we confront the much different issue of the channeling mechanism in the Federal Courts Improvement Act of 1982 as to whether an appeal will be heard by the traditional appellate forum or by the newly created Court of Appeals for the Federal Circuit. We also note in this respect that Griggs was decided after the passage of the Federal Courts Improvement Act, and thus Congress could not, of course, be charged with an awareness of Griggs’ teaching in fashioning its bright line notice-of-appeal test in section 403. Section 403(e) of that Act requires merely that a notice of appeal have been filed. It simply does not require an effective notice of appeal, and we see no reason to read Griggs' teaching into this entirely disparate setting. We note in this regard that Griggs does not state that the filing of a premature notice of appeal is not a filing of a notice of appeal at all but merely that it is "as if' no notice had been filed. The use of "as if’ clearly recognizes that it was a notice of appeal that was filed, while indicating that it is to be given no jurisdictional effect. To carry the timing requirements of Griggs over to the case at hand would read more into the requirements of section 403(e) than is in fact there.

We wish to emphasize the narrow scope of our holding. Our decision should not be read in any fashion as an interpretation of Fed.R. App.P. 4 or as disagreeing with any of the cases interpreting that rule. That issue and the accompanying body of law are simply not before us. We limit ourselves narrowly and solely to an interpretation of the specific, channeling requirements of section 403(e) of the Federal Courts Improvement Act.

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