United States v. 2007-02-28 | 06-10234 | USA VSADLER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 06-10234
Plaintiff-Appellee, D.C. No.
v. CR-04-01419-RCC/  HCEPHILIP MARTIN SADLER,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
December 7, 2006—San Francisco, California
Filed March 1, 2007
Before: Myron H. Bright,* Dorothy W. Nelson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Bright
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
2307

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COUNSEL
Harriette P. Levitt, Tucson, Arizona, for the appellant.
Celeste Corlett, Assistant United States Attorney, Tucson,
Arizona, for the appellee.
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OPINION
BERZON, Circuit Judge:
The question we address concerns the application of two
recent Supreme Court cases, Eberhart v. United States, 126
S. Ct. 403 (2005) (per curiam), and Kontrick v. Ryan, 540
U.S. 443 (2004), to Federal Rule of Appellate Procedure
(“FRAP”) 4(b). We have long assumed that FRAP 4 is, in
general, “mandatory and jurisdictional,” and therefore not for-
feitable1 or waivable. Kontrick and Eberhart, however, clari-
fied that procedural rules formerly referred to as “mandatory
and jurisdictional” may be, instead, simply “inflexible claim-
processing rule[s],” mandatory if invoked by a party but for-
feitable if not invoked. See Eberhart, 126 S. Ct. at 403, 407;
Kontrick, 540 U.S. at 456. Looking closely at Kontrick and
Eberhart to determine the proper boundary between the two
varieties of procedural standards, we conclude that Rule 4(b)
is not jurisdictional, but, instead, is forfeited if not invoked.
Here, however, the defendant’s arguments to the contrary not-
withstanding, the government properly objected to the
untimeliness of the appeal. Accordingly, we dismiss.
1Courts have generally not distinguished between the concepts of
“waiver” and “forfeiture” when referring to a party’s failure to timely
object to a late-filed appeal. See United States v. Moreno-Rivera, 472 F.3d
49, 50 n.2 (2d Cir. 2006) (per curiam) (using “forfeiture” and “waiver”
interchangeably); United States v. Carelock, 459 F.3d 437, 440 n.6 (3d
Cir. 2006) (referring to same practice as waiver); Bowles v. Russell, 432
F.3d 668, 671-72 n.1 (6th Cir. 2005) (referring to same practice as forfei-
ture); see also Kontrick, 540 U.S. at 458 n.13 (recognizing that “jurists
often use the words [forfeiture and waiver] interchangeably”). Kontrick,
however, recognized that forfeiture is the correct term in this context, as
it refers to “a failure to make the timely assertion of a right,” while waiver
concerns the “intentional relinquishment or abandonment of a known
right.” Id. (internal quotation marks omitted). We therefore refer to the
failure to state a timely objection to the late filing of a notice of appeal as
a forfeiture, and, for simplicity, discuss forfeiture rather than waiver in the
text, as that is what is here at issue. The same analysis, however, would
apply to affirmative waiver.
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BACKGROUND
On August 10, 2005, a jury found Philip Martin Sadler
guilty of one count of conspiracy to transport illegal aliens for
private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)
(A)(v)(i), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i); and two
counts of transporting illegal aliens for private financial gain
and placing in jeopardy the life of an alien, in violation of 8
U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). The district
court entered judgment against Sadler on December 5, 2005.
On December 1, 2005, Sadler’s trial attorney filed a motion
to withdraw as his attorney, indicating in the motion that he
had already filed a notice of appeal on behalf of Sadler. The
trial court granted the motion on December 16, 2005 and
appointed replacement counsel to “represent the Defendant in
all further proceeding[s], including but not limited to the
appeal now pending before the Ninth Circuit Court of
Appeals.”
Sometime thereafter, Sadler’s replacement counsel discov-
ered that Sadler’s trial attorney had never actually filed the
notice of appeal. On March 1, 2006, Sadler’s new counsel
filed with the district court a motion entitled “Motion to
Accept Delayed Notice of Appeal,” as well as a notice of
appeal based on an insufficiency of the evidence claim. The
district court granted Sadler’s motion “[t]o the extent [the dis-
trict court] has the ability to do so.”
On May 16, 2006, the Appellate Commissioner of this
Court issued an order indicating that Sadler’s notice of appeal
was not timely filed under Federal Rule of Appellate Proce-
dure 4(b) and ordering the parties to brief whether we have
jurisdiction to hear the appeal in light of Eberhart. We con-
sider that question next.
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DISCUSSION
A. Determining What is “Jurisdictional” after
Kontrick and Eberhart
[1] With respect to the timing for filing a notice of appeal,
FRAP 4 provides, in relevant part:
Rule 4. Appeal as of Right — When Taken
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules
4(a)(1)(B), 4(a)(4), and 4(c), the notice of
appeal required by Rule 3 must be filed with the
district clerk within 30 days after the judgment
or order appealed from is entered.
. . .
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant’s notice of
appeal must be filed in the district court within
10 days after the later of:
(i) the entry of either the judgment or the
order being appealed; or
(ii) the filing of the government’s notice of
appeal. . . .
Fed. R. App. P. 4. Until recently, our caselaw was clear that
compliance with the provisions of Rule 4 regarding the time
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for filing a notice of appeal was both mandatory and jurisdic-
tional. See, e.g., United States v. Arevalo, 408 F.3d 1233,
1236 (9th Cir. 2005) (describing Rule 4(b)’s time requirement
as “mandatory and jurisdictional”); George v. Camacho, 119
F.3d 1393, 1396 (9th Cir. 1997) (en banc) (“It is a well-settled
principle that this court cannot hear an appeal that was not
timely filed, as we have no jurisdiction to do so.”); Smith v.
United States, 425 F.2d 173, 174 (9th Cir. 1970) (“[I]t is set-
tled that compliance [with Rule 4(b)’s timing requirements] is
both mandatory and jurisdictional.”); see also 15A CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 3901 (2d ed. 1992) (“The rule is well settled that failure to
file a timely notice of appeal defeats the jurisdiction of a court
of appeals.”). The Supreme Court’s recent decisions in Kon-
trick and Eberhart, however, have called that long-standing
assumption into question.
[2] In Kontrick, 540 U.S. at 454, the Supreme Court
expressed displeasure with the too-prevalent practice of
applying the label “jurisdictional” loosely. Specifically, the
Court explained that courts have tended to “classify[ ] time
prescriptions . . . under the heading ‘subject matter jurisdic-
tion,’ ” a practice which “can be confounding.” Id. at 455
(internal quotation marks and alterations omitted). Admitting
culpability for being “less than meticulous in this regard”
itself, the Court went on to declare that
[c]larity would be facilitated if courts and litigants
used the label “jurisdictional” not for claim-
processing rules, but only for prescriptions delineat-
ing the classes of cases (subject-matter jurisdiction)
and the persons (personal jurisdiction) falling within
a court’s adjudicatory authority.
Id.
Applying the distinction it had drawn, the Court held that
Federal Rules of Bankruptcy 4004(a), (b) and 9006(b)(3),
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which together govern the timing for the filing of a complaint
opposing a debtor’s discharge, did not affect the subject mat-
ter jurisdiction of the bankruptcy courts. Id. at 448, 453-54.
Accordingly, under the more careful construction of the term
“jurisdictional,” the Court determined the rules in question to
be nonjurisdictional but mandatory claim-processing rules —
that is, subject to forfeiture but obligatory if not forfeited.
The Court came to this conclusion by comparing different
sections of the statutory code governing the bankruptcy
courts. Noting that under Article III of the Constitution
“[o]nly Congress may determine a lower federal court’s
subject-matter jurisdiction,” id. at 452, the Court distin-
guished between bankruptcy statutory provisions that contain
“built-in time constraints” and those that do not, id. at 453. It
then noted that because “[t]he provision conferring jurisdic-
tion over objections to discharge . . . contains no timeliness
condition,” such filings were governed by the time constraints
contained in the Bankruptcy Rules, promulgated by the Court
itself. Id. Because “it is axiomatic that such rules do not create
or withdraw federal jurisdiction,” id. (internal quotation
marks and alteration omitted), the Court concluded that the
timeliness provisions in question did not affect subject matter
jurisdiction and were, instead, forfeitable claim-processing
rules, id. at 454.
[3] Building on Kontrick, the Court in Eberhart, 126 S. Ct.
at 405, addressed once again the distinction between rules
prescribing the adjudicatory authority of the courts and “non-
jurisdictional claim-processing rules,” this time outside the
bankruptcy context. Eberhart concerned whether a new trial
motion that fails to comply with the timing requirements of
Federal Rules of Criminal Procedure 33 and 45(b)(2) must be
dismissed for lack of jurisdiction, even though the govern-
ment did not assert the motion’s untimeliness in the district
court. The Court compared Rules 33 and 45(b)(2) with the
bankruptcy provisions at issue in Kontrick and concluded that
“[i]t is implausible that the Rules considered in Kontrick can
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be nonjurisdictional claim-processing rules, while virtually
identical provisions of the Rules of Criminal Procedure can
deprive federal courts of subject-matter jurisdiction.” Id. at
405. Eberhart therefore declared that Rules 33 and 45 were
nonjurisdictional and thus forfeitable. Id. at 407.
B. Jurisdictional Nature of Rule 4
[4] Whether Rule 4’s time limitations all remain jurisdic-
tional after Kontrick and Eberhart is a question of first
impression in this circuit. The courts of appeals that have
acknowledged the possible impact of Kontrick and Eberhart
on Rule 4 have largely avoided reaching any jurisdiction ques-
tion.2 See Moreno-Rivera, 472 F.3d at 50 n.2; United States
v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006); Burnley
v. City of San Antonio, 470 F.3d 189, 192 & n.1 (5th Cir.
2006); Carelock, 459 F.3d at 439-41 & n.6; Bowles, 432 F.3d
at 671-72 n.1;3 cf. United States v. Smith, 438 F.3d 796, 801
(7th Cir. 2006) (acknowledging issue but declining to address
it because both parties characterized appeal as pertaining to
post-judgment order, for which appeal was timely). A careful
review of the reasoning of Eberhart and Kontrick, however,
makes clear that while Rule 4(a), pertaining to civil appeals,
is jurisdictional, Rule 4(b), covering only criminal appeals
and here applicable, is not.
[5] The distinction between jurisdictional rules and inflexi-
ble but not jurisdictional timeliness rules drawn by Eberhart
and Kontrick turns largely on whether the timeliness require-
ment is or is not grounded in a statute. Kontrick placed signif-
2The one case to address the issue squarely, Alva v. Teen Help, 469 F.3d
946 (10th Cir. 2006), is discussed below.
3The Supreme Court has granted certiorari in Bowles v. Russell. See 127
S. Ct. 763 (2006). The jurisdictional status of Rule 4 is not directly raised
in the question presented, but may be implicated. See Supreme Court
Docket: Questions Presented in Bowles v. Russell, http://www.supreme
courtus.gov/qp/06-05306qp.p df (last visited Feb. 21, 2007).
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icant emphasis on the fact that “[c]ertain statutory provisions
governing bankruptcy courts contain built-in time con-
straints,” while others, including the provisions at issue there,
do not. 540 U.S. at 453. The former, statutory limitations
implicate Congress’s power under Article III to determine the
subject matter jurisdiction of the lower federal courts, while
the latter, rule-based time limitations derive only from Court-
prescribed rules of practice and procedure. Id. at 452-54. Pro-
cedural rules created by the judiciary cannot shrink or expand
the scope of federal jurisdiction. See id. at 453 (“ ‘[I]t is axi-
omatic’ that such rules ‘do not create or withdraw federal
jurisdiction.’ ” (alteration in original) (quoting Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 370 (1978))); see
also 28 U.S.C. § 2072(b); Snyder v. Harris, 394 U.S. 332,
337-38 (1969) (recognizing that judicial “rulemaking author-
ity [is] limited by ‘the inability of a court, by rule, to extend
or restrict the jurisdiction conferred by a statute.’ ” (quoting
Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941))). Rules pro-
visions governing timeliness that do not implement congres-
sionally mandated “built-in time constraints” are therefore
properly considered nonjurisdictional limitations, subject to
forfeiture. Kontrick, 540 U.S. at 453.
[6] Applying this distinction, it is apparent that Rule 4(a),
applying to civil appeals, is both mandatory and jurisdictional.
Congress has specifically limited our jurisdiction to hear civil
appeals at 28 U.S.C. § 2107(a),4 which codifies the same time
constraints on the filing of civil appeals (but only civil
appeals) that exist in Rule 4(a).5 Significantly, Kontrick iden-
4Section 2107(a) provides:
(a) Except as otherwise provided in this section, no appeal shall
bring any judgment, order or decree in an action, suit or proceed-
ing of a civil nature before a court of appeals for review unless
notice of appeal is filed, within thirty days after the entry of such
judgment, order or decree.
5Both Rule 4(a) and 28 U.S.C. § 2107 provide for exceptions to the gen-
eral rule that a notice of appeal in a civil case must be filed within thirty
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tified Section 2107(a) as “a provision of a similar order” to
the bankruptcy provisions, containing the sort of “built-in
time constraints” the Court deemed jurisdictional. 540 U.S. at
453 n.8; see also Barnhart v. Peabody Coal Co., 537 U.S.
149, 159 n.6 (2003) (recognizing that “some time limits are
jurisdictional even though expressed in a separate statutory
section from jurisdictional grants,” and citing 28 U.S.C.
§ 2107 as an example). Thus, because the time constraints
outlined in Rule 4(a) implement the limitations Congress
imposed on this Court by statute, we must dismiss civil
appeals that are untimely for lack of jurisdiction, whether or
not the parties raise the issue.
In the only case to directly address the proper categoriza-
tion of Rule 4 since Kontrick and Eberhart changed the land-
scape, the Tenth Circuit reached the same conclusion we do
regarding Rule 4(a). The court held recently that “[n]either
days. The exceptions are, for the most part, substantively the same. Com-
pare 28 U.S.C. § 2107(b) (providing sixty days for appeal where the
United States or its officer or agency is a party), with Fed. R. App. P.
4(a)(1)(B) (same), and 28 U.S.C. § 2107(c) (permitting district court,
“upon motion filed within 180 days after entry of the judgment or order
or within 7 days after receipt of such notice,” to reopen time for appeal
for 14 days where the party did not receive notice of entry of the appeal-
able judgment or order within 21 days of its filing), with Fed. R. App. P.
4(a)(5) (same).
The exceptions, however, are not entirely coextensive. The rule and
statute each permit a district court, upon a party’s motion filed no more
than 30 days after the normal period for appeal has expired, to extend the
time for a civil appeal upon a showing of “excusable neglect or good
cause.” Compare 28 U.S.C. § 2107(c), with Fed. R. App. P. 4(a)(5)(A).
Section 2107 does not place a cap on the length of this extension. See 28
U.S.C. § 2107(c). FRAP 4(a)(5)(C), however, specifies that “[n]o exten-
sion under this Rule 4(a)(5) may exceed 30 days after the prescribed time
or 10 days after the date when the order granting the motion is entered,
whichever is later.” We do not decide, because the issue is not here perti-
nent, whether the cap on the length of extension permitted by the district
court is subject to forfeiture when an objection is not properly raised.
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Eberhart nor Kontrick affects the jurisdictional nature of the
timely filing of an [sic] civil appeal.” Alva v. Teen Help, 469
F.3d 946, 952-53 (10th Cir. 2006). The Alva court applied the
logic outlined above in reaching its conclusion.
Alva involved an untimely civil appeal, so the court’s hold-
ing was limited to Rule 4(a). However, the Tenth Circuit went
on to state in dicta that, although there is no corollary to Sec-
tion 2071 creating congressionally mandated time constraints
for criminal appeals, it “did not believe the absence of a stat-
ute affects the jurisdictional nature of a timely notice of
appeal in a criminal case.” Id. at 953 n.13. The court identi-
fied two bases for this conclusion: (1) that United States v.
Robinson, 361 U.S. 220 (1960), remains good law after Kon-
trick and Eberhart; and (2) that “the rule establishing the time
limit for filing a criminal appeal was authorized by Con-
gress.” Id. Because we believe that neither ground supports
the conclusion that Rule 4(b) is jurisdictional, we decline to
follow Alva’s dicta and instead hold the Rule’s timing limita-
tions for criminal appeals, applicable here, are subject to for-
feiture.
[7] Critical to our conclusion is that there is no statute
imposing Rule 4(b)’s time restrictions — or any other — on
would-be criminal appellants.6 Congress’s general authoriza-
tion of federal court procedural rules7 cannot fill the statutory
gap. Kontrick clearly states that only timeliness standards
6The only statutory reference to the timing of criminal appeals we
uncovered is at 18 U.S.C. § 3732. Entitled “Taking of appeal; notice; time
— (Rule),” the provision lacks any substantive content. It merely directs
readers to “SEE FEDERAL RULES OF CRIMINAL PROCEDURE” and
continues, “Taking appeal; notice, contents, signing; time, Rule 37(a).” Id.
As the historical notes indicate, Federal Rule of Criminal Procedure 37 is
now at Federal Rules of Appellate Procedure 3 and 4. Id. references and
text.
7See 28 U.S.C. § 2072(a) (“The Supreme Court shall have the power to
prescribe general rules of practice and procedure and rules of evidence for
cases in the United States district courts . . . and courts of appeals.”).
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affecting our adjudicatory authority are jurisdictional, and that
“[o]nly Congress may determine a lower court’s subject-
matter jurisdiction.” 540 U.S. at 452. While Congress autho-
rized the Supreme Court to create rules governing the practice
and procedure of both bankruptcy cases, see 28 U.S.C.
§ 2075, and the lower federal courts, see id. § 2072, Kontrick
expressly declared that time constraints arising only from
Court-prescribed, albeit congressionally authorized, proce-
dural rules are not jurisdictional. 540 U.S. at 453.
Eberhart did explicitly distinguish Robinson,8 an earlier
Supreme Court case concerning the timeliness of appeals, so
Robinson’s holding remains good law. See Eberhart, 126
S. Ct. at 405 (“We need not overrule Robinson . . . to charac-
terize Rules 33 and 45 as claim-processing rules.”). But that
circumstance supports rather than detracts from our conclu-
sion that Rule 4(b) is not jurisdictional.
In Robinson, the criminal defendants filed their notices of
appeal eleven days late.9 361 U.S. at 221. Rather than address-
ing the merits of the appeals, the government moved the Sev-
enth Circuit to dismiss the untimely appeals for lack of
8The Kontrick Court did not discuss Robinson in any depth, but did cite
it as an example of a case in which the label “jurisdictional” was applied
too loosely. See 540 U.S. at 454.
9Federal Rule of Criminal Procedure 37 governed the timing of criminal
appeals at the time Robinson was decided. Rule 37(a)(2) provided, in rele-
vant part:
Time for Taking Appeal. An appeal by a defendant may be taken
within 10 days after entry of the judgment or order appealed
from, but if a motion for a new trial or in arrest of judgment has
been made within the 10-day period an appeal from a judgment
of conviction may be taken within 10 days after entry of the order
denying the motion. . . .
Robinson, 361 U.S. at 222 n.3. Rule 37(a)(2) is now codified at Rule 4(b)
of the Federal Rules of Appellate Procedure. See Fed. R. App. P. 4 advi-
sory committee’s note (1967 adoption) (“Subdivision (b). This subdivision
is derived from FRCrP 37(a)(2) without change of substance.”).
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jurisdiction. Id. The Seventh Circuit concluded that jurisdic-
tion was possible, reasoning that Federal Rule of Criminal
Procedure 45(b) could expand the time to appeal if the district
court found the tardiness was due to “excusable neglect,” id.
at 222, and remanded for clarification on that point; the dis-
trict court then found excusable neglect. Id. The court of
appeals consequently accepted the appeal. Id. The Supreme
Court reversed, finding that Rule 45(b) did not expand the
time for appeal prescribed in Rule 37. Id. at 229. In doing so,
the Court repeatedly characterized the timely filing of a notice
of appeal as “mandatory and jurisdictional.” Id. at 224, 229.
A close reading of Eberhart makes clear that Robinson is
referred to as a prime example of the Court’s earlier inaccu-
rate use of the word “jurisdictional.” Pinpointing Robinson as
an early and oft-relied upon source for the incorrect notion
that inflexible timing rules are “mandatory and jurisdictional,”
the Eberhart Court clarified that Robinson did not need to be
overruled because it “d[id] not hold the limits of the Rules to
be jurisdictional in the proper sense that Kontrick describes.”
126 S. Ct. at 405.
In other words, as explained in Eberhart, Robinson dis-
missed the untimely appeal because it was mandatory to do
so once lack of timeliness was invoked, not because it was
jurisdictionally required. As Eberhart describes it, Robin-
son’s “narrow and unremarkable holding” is simply that
“when the Government object[s] to a filing untimely under
Rule 37 [now FRAP 4(b)], the court’s duty to dismiss the
appeal [is] mandatory.” Id. at 406. Robinson’s holding is
therefore unaffected by Kontrick’s clarification that the label
“jurisdictional” only applies to rules that circumscribe the
subject-matter or personal jurisdiction of the courts. Finding
that courts must apply a timeliness rule when a party properly
invokes it, as in Robinson, is not the same as finding that
“limits like those in Rule 33 are not forfeitable when they are
not properly invoked,” as was the case in Eberhart. Id.; see
also id. (“Robinson is correct not because the District Court
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lacked subject-matter jurisdiction, but because district courts
must observe the clear limits of the Rules of Criminal Proce-
dure when they are properly invoked.”). The latter holding
implicates jurisdiction, and consequently Kontrick’s rule,
while the former does not.
In short, while Kontrick and Eberhart do not overrule Rob-
inson, they make clear that it is not properly understood as a
jurisdictional case. Moreover, Eberhart gives us an additional
reason to conclude that Rule 4(b) is nonjurisdictional. The
Court characterizes the “net effect” of Robinson, when
“viewed through the clarifying lens of Kontrick,” as
to admonish the Government that failure to object to
untimely submissions entails forfeiture of the objec-
tion, and to admonish defendants that timeliness is of
the essence, since the Government is unlikely to
miss timeliness defects very often.
Id. at 406-07. The clear implication of this statement is that
the timeliness dictates of Rule 4(b) are forfeitable, because
Rule 4(b) is a nonjurisdictional claim-processing rule.
[8] Accordingly, we hold that the timeliness dictates of
Rule 4(b), governing criminal appeals like the one at bar, are
subject to forfeiture by unvigilant parties. The government,
after having originally contested this issue in its brief, ulti-
mately conceded it shortly before oral argument. The govern-
ment still asserts, however, that the instant appeal must be
dismissed because it properly objected to Sadler’s late-filed
notice of appeal. We consider that issue next.
C. Propriety of the Government’s Objection
[9] Of course, to invoke an inflexible claim-processing rule
effectively, the timeliness objection must itself be proper.
Absent a timely and otherwise appropriate invocation of an
inflexible but not jurisdictional claim-processing rule, we are
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not obliged to enforce the rule.10 See Eberhart, 126 S. Ct. at
407. Sadler asserts that the government forfeited its right to
object to this appeal on untimeliness grounds in either of two
ways. First, Sadler argues that the government’s failure to
raise the untimeliness defense before the district court consti-
tutes a forfeiture. Second, Sadler maintains that the govern-
ment forfeited the untimeliness defense by failing to file a
motion to dismiss in this Court, waiting instead to raise the
issue in its opposition brief. We disagree with both conten-
tions and conclude that the objection was properly raised.
[10] As to the first contention: We, not the district court,
are the ultimate arbiters of compliance with the rules govern-
ing the appellate process. Robinson so recognized, holding
that the government’s filing of a motion to dismiss for
untimeliness with the circuit court was sufficient to invoke the
jurisdictional bar. See 361 U.S. at 221. This determination is
also in line with caselaw from other circuits addressing com-
pliance with Rule 4 in light of Eberhart. See, e.g., Burnley,
470 F.3d at 192 & n.1 (finding Eberhart inapplicable where
appellee raised Rule 4 violation at circuit court level); Car-
elock, 459 F.3d at 439-40 & n.6 (same); Bowles, 432 F.3d at
10We are sympathetic to Judge Bright’s belief that courts ought to be
able to consider fairness and equity when deciding whether to enforce
Rule 4(b)’s timeliness dictates. Indeed, this case is an example of one in
which we would consider declining to do so if given the choice. As the
district court recognized, the substitute counsel was misled by the former
counsel’s papers into believing the notice of appeal had been filed when
it had not been, and there is no indication of prejudice to the government.
While Eberhart and Kontrick have clarified that Rule 4(b) is not jurisdic-
tional, however, those cases do not upset our long-standing precedent that
the timely filing of a notice of appeal is mandatory, meaning we must
enforce the rule when it is properly invoked. See United States v. Eccles,
850 F.2d 1357, 1363 (9th Cir. 1988) (describing compliance with Rule
4(b) as both mandatory and jurisdictional); Smith, 425 F.2d at 174 (same);
see also In re John-Manville Corp., No. 06-2320-bk, ___ F.3d ___, 2007
WL 106516, at *4 (2d Cir. Jan. 17, 2007) (finding “excusable neglect”
irrelevant to Rule 4(a) determination because, under Eberhart, “a court
must strictly enforce the time limit if an adverse party invokes it”).
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672 n.1 (“The government did not, nor did it need to, oppose
Bowles’s Rule 4(a)(6) motion in the district court. Instead, it
objected to the timeliness of the appeal in its brief [to the
appellate court].” (emphasis added)).
The facts in Eberhart are distinguishable on this point. The
Eberhart Court was addressing forfeiture in the context of a
Federal Rule of Criminal Procedure 33 motion for a new trial.
The government had ignored the timeliness issue in its oppo-
sition to the new trial motion filed with the district court,
addressing only the merits. Eberhart, 126 S. Ct. at 404. The
district court was the appropriate arbiter of the issue, as it
retained jurisdiction over the case until it disposed of the
motion for a new trial. See Fed. R. App. P. 4(b)(3)(B); see
also 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE § 3950.10 (3d ed. 1999) (“[A] notice of
appeal filed before the disposition of any of the posttrial toll-
ing motions [including a motion for new trial under Federal
Rule of Criminal Procedure 33] becomes effective upon dis-
position of those motions.”); cf. United States v. Villapudua-
Perada, 896 F.2d 1154, 1156 (9th Cir. 1990) (“The district
court has inherent jurisdiction within the time allowed for
appeal to modify its judgment for errors of fact or law or even
to revoke a judgment.”). Thus, Eberhart held, the govern-
ment’s objection at the circuit level was too late, as the gov-
ernment had forfeited the untimeliness defense by not raising
it in the district court when it had the chance. 126 S. Ct. at
403-04, 407.
[11] The instant case, however, involves the timing of the
filing of a notice of appeal, rather than a motion within the
purview of the district court. Once a notice of appeal is filed,
the district court loses jurisdiction over a case. Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
(per curiam) (“The filing of a notice of appeal is an event of
jurisdictional significance — it confers jurisdiction on the
court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.”). The
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government therefore acted correctly by asserting its objec-
tion in our court rather than the district court.
[12] As to the second contention — that the objection
should have been made in a motion to dismiss in this Court:
We do entertain objections to the timeliness of appeals on
motions to dismiss filed before briefing. Filing such motions
can provide both the litigants and this Court with an expedi-
tious way to determine the viability of an appeal, saving fees
for the clients and enabling the Court to decide a case summa-
rily if the objection is well taken. No rule exists in this circuit,
however, requiring an appellee to raise any objection to the
timeliness of the appeal prior to briefing. Moreover, the
Appellate Commissioner’s order, issued shortly after Sadler’s
replacement counsel filed the notice of appeal, specifically
directed both parties to brief the timeliness issue, indicating
that the inclusion of the argument in the normal course of
appellate briefing was appropriate. We note that courts in
other circuits considering this issue have also found that rais-
ing the untimeliness argument in briefing, as opposed to in a
motion to dismiss, was sufficient to invoke Rule 4’s protec-
tions. Compare Moreno-Rivera, 472 F.3d at 50 n.2 (finding
no forfeiture because the government “properly raised the
untimely nature of Moreno-Rivera’s notice of appeal in its
motion to dismiss”), with Carelock, 459 F.3d at 439-40 & n.6
(finding Rule 4 objection proper when raised in briefing
responding to circuit clerk’s order to show cause), and
Bowles, 432 F.3d at 672 n.1 (finding respondent “never for-
feited his right to strict adherence to Rule 4” because the gov-
ernment “objected to the timeliness of the appeal in its brief”
to the circuit court).
CONCLUSION
[13] In sum, we hold that FRAP 4(b), unlike FRAP 4(a), is
a nonjurisdictional claim-processing rule subject to forfeiture.
Because the government properly raised the untimeliness
argument in the instant case, however, we are required to dis-
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miss Sadler’s appeal. See Eberhart, 126 S. Ct. at 406 (holding
Robinson stands for the still-valid proposition that “when the
Government object[s] to a filing untimely under Rule 37 [now
FRAP 4(b)], the court’s duty to dismiss the appeal [is] manda-
tory”).
DISMISSED.
BRIGHT, concurring separately:
I concur in the result reached by the majority. In this case,
I agree that Sadler’s untimely notice of appeal, see Federal
Rule of Appellate Procedure 4(b), should be dismissed on the
government’s objection, which was first raised in its opening
brief.
I add a caveat. I believe circumstances could arise in a
criminal appeal in which a federal court could properly reject
the government’s Rule 4(b) objection, made to the late filed
appeal of a defendant.
However, such a case is not before us at this time.
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