United States v. Rainbow

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

UNITED STATES OF AMERICA             
                                         RE:  96-3501
           v.                           Civil Action  Case Number 96- 183 

THE RAINBOW FAMILY, et al.

APPELLANT'S POSITION REGARDING JURISDICTIONAL QUESTION
POSED BY THE CLERK OF COURT

INTRODUCTION

In a Memorandum, dated November 13, 1996, Miquel J. Cortez, Clerk of this Court, noted, "it appears that this court may lack jurisdiction over this appeal." Mr. Cortez further advised that "(t)he parties are requested to simultaneously advise the court in writing within fourteen (14) days from the date of this letter of their position regarding the jurisdictional question set forth on the attached page." [1]

Specifically the jurisdictional question presented by Mr. Cortez's letter is:

"Whether the notice of appeal was untimely because it was filed more than 60 days after entry of the district court's order dismissing the case? Fed.R.App.P. 4(a)(l).

"Order entered on docket: August 21, 1996
"Notice of appeal filed in the district court: October 25, 1996."

As the Record appears to indicate that the Notice of Appeal in this case was made outside the 60 day limit established by Fed.R.App.P. 4(a)(l), it is understandable that Mr. Cortez, might question whether this Court is deprived of jurisdiction.

[1 Additionally, Mr. Cortez's letter required that, "(t)he responses must include a Certificate of Interested Persons and Corporate Disclosure Statement as described in Fed.R.App.P. 26.1 and the corresponding circuit rules." Appellant also files a Corporate Disclosure Statement on this date]

1

However, as explained below, the Notice of Appeal in this case was actually submitted in a timely fashion, and, therefore, this Court should exercise jurisdiction.

DISCUSSION

Given that the district court's order dismissing the case was entered on August 21, 1996, it appears that, pursuant to the provisions of Fed.R.App.P. 4(a)(1), to be timely an appeal must have been noted no later than October 21, 1996. [2]

In fact, appellant served Notice of Appeal on October 20, 1996, by certified U.S. mail, return receipt requested. Exhibit 1, hereto.

In pertenient part Fed.R.App.P 25(c) provides:

"MANNER OF SERVICE. Service may be personal or by mail..... Service by mail is complete on mailing." Emphasis added. [3]

Although the clerk of the district court may not have filed the Notice of Appeal until October 25, 1996, this Court should nonetheless recognize that Notice of Appeal was actually made on October 20, 1996, when the Notice was committed to the United States Postal Service. See, Exhibit 1, hereto.

[2 In perteninet part Fed.R.App.P. 26(a) provides,
"In computing any period of time prescrbed or allowed by these rules ... the day of the act event, or default from which the designated period of time begins to run shall not be included. The last day of the period so cumputed shall be included, unless it is a Saturday, Sunday or a legal holiday ... in which event the period runs until the end of the next day whhich is not one of the aforementioned days."

Although 60 days from August 21st seems to fall on October 20, 1996, since October 20th fell on a Sunday, the period for filing a timely appeal would not have expried until the following day, Monday, October 21st. ]

[3 As appellant resides in the District of Columbia, it would have been extremely inconvenient for him to have made personal service of his Notice of Appeal to the district court in Jacksonville, Florida. Therefore, appellant noted his appeal by mail.]

2

CONCLUSION

Because the Notice of Appeal was not due until October 21, 1996, "(s)ervice by mail is complete on mailing" (Fed.R.App.P 25(c)), and service of the Notice of Appeal was completed by mail on October 20, 1996, and it is clear that this Court should assume jurisdiction of this appeal.

Respectfully submitted this 21st day of November, 1996,

____________________
William Thomas, pro se
P.O. Box 27217
Washington, D.C. 20038
202-462-0757

CERTIFICATE OF SERVICE

I hereby state that, on November 21, 1996, I served copies of the foregoing Appellant's Position Regarding Jurisdictional Question Posed by the Clerk of Court, by first class U.S. mail, postage prepaid, upon the offices of
REGINALD LUSTER
Assistant United States Attorney
200 West Forsythe Street, Suite 700
Jacksonville, Florida 32201
Florida Bar No. 075 0069

THOMAS W. MILLET
ANJALI A. ASHLEY
U.S. Department of Justice
Civil Division
801 E Street, N.W.. Room 1016

Leslie Lagmarcino
Officer of the General Counsel
U.S. Department of Agriculture
13th & Constitution, S.W.
Washington, D.C.

Case Contents | Rainbow Cases | Rainbow Regulation Page
Rainbow Home Page