A Festivus mystery

This case drew my attention because one of the defendants is "Festivus for the Rest of Us, Inc." Unfortunately, the case does not deal with misanthropic endeavors or Christmas-time family arguments. It addresses deadlines for filing a notice of appeal in criminal cases. It also addresses whether certain criminal proceedings in which third parties claim an interest in forfeited property are civil or criminal.

The case is United States v. Bradley, issued on February 16. This is a wire fraud and tax evasion case.. The Second Circuit (Leval, Calabresi and Cabranes) holds the Court has no jurisdiction over the appeal because the notice of appeal is untimely. This holding grows out of the finding that a section of the US Code dealing with the third-party's interest in forfeited property is a civil provision, which carries a strict deadline for notices of appeal, 60 days when the US government is a party. While these cases proceed as criminal matters, the forfeiture section is conducted separately from the criminal prong, allowing third parties to stake their claim to forfeited property. The civil appellate rules therefore apply, as other Circuits have held.

Lurching further into the weeds, the Court of Appeals notes that appellants are appealing from a Rule 60 motion that issued on December 30, 2015. Yet the clock for the notice of appeal actually started to run on August 20, 2015, when the district court initially issued its opinion in the case. "The fact that the district court reserved the right to explain its August 20th decision until later, and gave that explanation on December 30, 2015, does nothing to prevent the clock from running." The August 20 order denied the Rule 60 motion. While the extended December 30 ruling explained the August 20 ruling, December 30 did not trigger the deadline, as that ruling did not change matters of substance or resolve an ambiguity from the earlier ruling. The December ruling merely reaffirmed the August ruling. The notice of appeal had to be filed 60 days from the August ruling.

So what about Festivus? It  appears in the caption but there is nothing about Festivus in the opinion. I poked around the docket sheets and find nothing. This is not a Festivus miracle but a Festivus mystery. As conceived by George Costanza's father, Festivus involved the airing of grievances. This case highlights a practice that would be appropriate for any Festivus gathering, at least one involving lawyers. Some judges will issue a brief ruling on a motion simply stating a motion was granted or denied before then issuing a written decision at a later date. So the parties know if they won or lost but they have no idea why. This is a frustrating practice for the lawyers, but it's particularly frustrating for the clients who want to know what happened. They may find out months later, when the judge issues a ruling that details the reasons. That is what took place here. The clients waited four months for the written decision. What this ruling from the Second Circuit means if the interested parties had to file a notice of appeal from the August 2015 ruling that contained no explanation for the adverse ruling. Yet, they (or their lawyers) might not think an appeal is worthwhile until they see the court's reasoning on the motion. But when that time comes, it is too late to take an appeal.

The lesson here in federal practice is to file the notice of appeal once that order rolls in. You can always withdraw the appeal later on if you decide you cannot get around the trial court's reasoning. Sometimes we anticipate what the trial court will say when it dismisses the case, but you don't know for sure, as the court may dismiss the case on grounds that no one argued, and it may do so on some point that you now realize you cannot get around.