United States v. Rainbow
UNITED STATES COURT OF APPEALS
UNITED STATES OF AMERICA
v. Civil Action Case Number 96- 183
THE RAINBOW FAMILY, et al.
APPELLANT'S POSITION REGARDING JURISDICTIONAL QUESTION
POSED BY THE CLERK OF COURT
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." 
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.
"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]
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.
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. 
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. 
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,
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. ]
"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
[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.]
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,
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
William Thomas, pro se
P.O. Box 27217
Washington, D.C. 20038
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
801 E Street, N.W.. Room 1016
Officer of the General Counsel
U.S. Department of Agriculture
13th & Constitution, S.W.
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