Appellate Practice and Procedure - K. Todd Butler

• Publication year: 2007

Appellate Practice and Procedureby K. Todd Butler^*

This Article reviews federal appellate procedure decisions in the Eleventh Circuit during the 2006 calendar year. Questions considered this year include the role of the notice of appeal in federal appellate jurisdiction, which is addressed in the first section below. The second section addresses the necessity of a final order for appeal, with emphasis on conditional final orders and when they are subject to appeal. The third section addresses the necessity of raising issues before the district court in order to preserve them for appeal.

I. Appellate Jurisdiction: The Notice of Appeal

The decision in United States v. Machado¹ left Gregorio Machado in a conundrum that would have made Joseph Heller proud. indicted on thirteen counts of conspiracy to launder drug money in March 1997, Machado entered a plea of guilty to Count I in May 1997.² The written plea agreement provided that eleven counts would be dropped and that Machado would "'fully and unreservedly cooperate and assist the United States in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located.'"³ According to Machado, the value of the items subject to forfeiture was approximately $12 million.⁴

The district court sentenced Machado to fifty-one months imprisonment on July 28, 1997 and entered judgment on July 30, 1997. The judgment stated which counts of money laundering had been dropped, stated that Machado had pleaded guilty to Count i, stated his sentence on Count I, and stated that a separate forfeiture order would be entered. The judgment entered on July 30 did not include an order identifying the property to be forfeited.⁵

Approximately seven months later, on March 11,1998, the government filed a motion for the forfeiture order, pursuant to which the district court entered a preliminary order on March 12, 1998. The district court entered a subsequent order for forfeiture of additional property on April 24, 1998 and the final forfeiture order on July 14, 1998.⁶

Machado appealed none of the forfeiture orders, but on September 4, 1998, he filed a pro se motion pursuant to Federal Rule of Criminal Procedure 41(e)⁷ for the return of documents that he believed would show that some of his property had been improperly forfeited. On January 20, 1999, the district court ordered the documents returned, but the government could not fully comply because some of the documents had been destroyed.⁸

On August 22, 2002, the Eleventh Circuit entered an order in United States v. Petrie,⁹ in which the court discussed the detailed procedure for forfeiture provided by Federal Rule of Criminal Procedure 32.2.¹⁰ included in this detailed rule is a requirement that the forfeiture order be entered at the time of sentencing.¹¹

On April 23, 2003, Machado filed a motion pursuant to Federal Rule of Civil Procedure 60(b)¹² requesting that the final order of forfeiture be vacated; again, the district court denied and the Eleventh Circuit upheld.¹³ Again on May 17, 2004, Machado filed a motion pursuant to Rule 60(b), which the district court denied and the Eleventh Circuit upheld, holding that Federal Rule of Civil Procedure 60(b) cannot be used to challenge civil forfeiture orders.¹⁴ Finally, on December 17, 2004, Machado filed a second motion pursuant to Federal Rule of Criminal Procedure 41(g)¹⁵ and the All Writs Act,¹⁶ demanding return of the forfeited property.¹⁷ The district court denied the last motion on February 7, 2005.¹⁸

As the Eleventh Circuit stated, the heart of Machado's argument was that the district court did not have jurisdiction to enter the forfeiture order on July 14, 1998 because the court lost jurisdiction to do so when it entered the order sentencing Machado on July 28, 1997 (or July 30, 1997, when the order was actually entered).¹⁹ Machado appealed to the axiom of United States federal court jurisprudence emphasizing that federal courts are courts of limited subject matter jurisdiction and are required to sit in review of their own subject matter jurisdiction at all times.²⁰ Federal subject matter jurisdiction can never be forfeited or waived, and defects in subject matter jurisdiction must be corrected regardless of whether the issue was raised in the district court or on appeal.²¹ The issue of federal subject matter jurisdiction may be raised by a party or by the court on its own initiative and the issue may be raised "'at any stage in the litigation, even after trial and the entry of judgment.'"²²

The Eleventh Circuit refused to consider Machado's objection to the district court's jurisdiction to enter a forfeiture order subsequent to sentencing.²³ The Eleventh Circuit's refusal was based on the fact that Machado had not filed a timely notice of appeal following the district court's entry of the forfeiture order.²⁴ A timely notice of appeal is itself "'mandatory and jurisdictional,'" and when the appellant fails to file a timely notice of appeal, the appellate court is "'without jurisdiction to review the decision on the merits.'"²⁵

The Eleventh Circuit's decision in Machado emphasizes that, on appeal, jurisdictional issues have a two-layered character. Federal jurisdiction must be satisfied, however, before an appellate court may address the subject matter jurisdiction of a district court. The appellate court must itself have federal appellate jurisdiction.²⁶

Nevertheless, Machado's conundrum is probably not the inescapably double-binding Catch-22 that Joseph Heller made popular. Because subject matter jurisdiction is always an issue, Machado could probably raise the issue today in the district court. If the district court rejected Machado's objection to its subject matter jurisdiction to enter the order forfeiting his property, then upon timely notice of appeal, the Eleventh Circuit would have appellate jurisdiction to review his case.

The issue of appellate jurisdiction was also discussed in Holloman v. Mail-Well Corp.²⁷ Holloman is an ERISA case in which the plaintiff, Otis Holloman, had elected the "Last Survivor Option" on his retirement plans. This option provided that he would accept a reduced monthly pension payment, and in return his spouse would continue to receive his pension payment until her death if she outlived him. After his retirement, Mr. Holloman was widowed and subsequently remarried. There was evidence that Mr. Holloman confirmed with his plan administrator that his new wife would be entitled to the same benefits to which his late wife would have been entitled.²⁸

On July 7, 2000, the defendant acquired Mr. Holloman's prior employer and decided to accelerate payment of benefits to retirees of the acquired entity. After application of the actuarial assumptions provided in the plan, a lump sum payment to Mr. Holloman was determined. The lump sum, however, included no payment for benefits that the same actuarial assumptions should have provided for Mr. Holloman's second wife. Mr. Holloman retained counsel, filed suit, and after a hard-fought legal battle, lost in the district court on summary judgment.²⁹ In the course of the legal battle, the district court imposed sanctions on Mr. Holloman's attorney under 28 U.S.C. Sec. 1927³⁰ for having filed motions to compel discovery that the district court believed were filed in bad faith and lacked merit.³¹

On appeal of the district court's final summary judgment order and the district court's order denying the plaintiff's motions to compel discovery,³² the Eleventh Circuit affirmed summary judgment and the orders on the motions to compel.³³ Furthermore, it dismissed the appeal of the attorney fees sanctions.³⁴

The Eleventh Circuit dismissed the appeal of attorney fees sanctions because the notice of appeal was defective on that issue.³⁵ The court emphasized the principle that notice of appeal is mandatory and jurisdictional, stating that the "rule is absolute and inflexible."³⁶ Nevertheless, the court also noted that it would apply the rules in a lenient manner and determined that the notice of appeal had been properly filed where certain minimum elements were met.³⁷ Those elements are as follows: (1) the notice of appeal must state the name or names of the persons taking the appeal; (2) the notice of appeal must identify the judgment or the order being appealed; (3) the notice of appeal must identify the court to which the appellant is taking the appeal.³⁸

Where these minimum standards are timely met, the requirement of a notice of appeal will be satisfied and appellate jurisdiction will exist.³⁹ Practitioners should note that the court dismissed the appeal of the attorney fees sanctions because the sanctions had been ordered against Mr. Holloman's attorney and not against Mr. Holloman as the plaintiff.⁴⁰ Because the attorney fees sanctions were against the plaintiff's attorney, the attorney was required to state his own name as one of the persons taking the appeal.⁴¹

In KH Outdoor, LLC v. City of Trussville ("KH Outdoor II'),⁴² the Eleventh Circuit's leniency was more evident in recognizing the effectiveness of a notice of appeal with respect to appellate subject matter jurisdiction. This...