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United States v. Conner

United States Court of Appeals, Fifth Circuit

October 22, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
RONALD CONNER, Defendant-Appellant

          Appeal from the United States District Court for the Northern District of Texas

          Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.


         The United States petitioned the district court to enforce a summons of Ronald Conner by the Internal Revenue Service. The district court twice found Conner in contempt of court for failure to fully comply with the summons. He appealed from the district court's denial of his motion to vacate the second contempt order, one granted on motion of the government.

         Conner seeks en banc rehearing of our decision to dismiss his appeal as time-barred. He argues that because the United States is a party to the suit, he had 60, not 30, days to file his notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(B). Treating Conner's petition for en banc rehearing as a motion for panel reconsideration, we grant the motion for reconsideration and withdraw our prior order dismissing Conner's appeal.


         Rule 4(a)(1) provides a 30-day time limit to file a notice of appeal in the Court of Appeals from a district court, but extends that limit to 60 days when the United States is a party. Conner filed his notice of appeal 43 days after the entry of the district court's order denying his motion, and on the government's motion we dismissed his appeal as time-barred. Conner acknowledges that under this Court's decision in United States v. Brumfield, [1] the United States is not a party to a civil contempt proceeding for the purposes of the 60-day rule-even if it is a party to the litigation that prompted the contempt order. He urges that Brumfield no longer controls the deadline to appeal from civil contempt orders, citing prior and intervening caselaw and statutory changes.

         Conner here asks the court to reconsider Brumfield given its tensions with decisions of this court, an intervening decision by the Supreme Court, and changes in the applicable federal rules of procedure. We agree and, with fealty to our rule of orderliness, revisit Rule 4(a)(1)(B) in light of its current wording and Brumfield's inconsistency with prior caselaw from this circuit. We conclude that the 60-day limit applies to appeals from civil contempt orders where the United States was a party to the underlying lawsuit.

         Noting that the issue was "apparently an issue of first impression in this circuit, "[2] Brumfield followed the Sixth Circuit's United States v. Hallahan and, in a single paragraph of a lengthy opinion addressing many issues, held that "this is not a situation in which the United States' participation in a contempt holding is in the traditional posture required for that sixty day provision to apply."[3]

         When Brumfield turned to the Sixth Circuit, it fell in tension with prior panel decisions from this circuit. In Montelongo v. Meese, we held that where the United States was a party to the underlying suit but there were also other parties involved, all parties would have sixty days to appeal, even if "the government [was] not a party or . . . not interested in the appeal that [was] actually taken."[4] The panel observed that it saw "no reason to complicate the already difficult task of attempting to determine the timeliness of appeals by requiring that timeliness be determined separately on the basis of which party is concerned with which issue."[5] By Montelongo, the determinant is whether the government was a party in the district court proceeding-regardless of whether the actual issue being appealed is one to which the government stands in an appropriate posture.

         Montelongo distinguished Virginia Land Co. v. Miami Shipbuilding Corp.'s application of the 30-day limit to an interlocutory appeal from a case in which the United States, though it had been a party, no longer had ongoing concern with any of the issues in the case.[6] Virginia Land noted that "as to the only controversy asserted by the United States, the suit was in effect determined and brought to an end; and . . . the United States was not, and could not have been, a party at interest in the appeal."[7]

         Read together, Montelongo and Virginia Land index the trigger for the 60-day deadline to United States presence in the underlying case. In Montelongo, government presence in the case at trial meant that all parties were entitled to the 60-day limit, even though the ultimate appeal did not concern the United States. In Virginia Land, the only controversy involving the United States had been resolved.[8] Neither case suggests that the United States need stand in the "traditional posture" to the appeal. Indeed, Montelongo's language suggests the opposite: that as long as the United States is a party to the case, it does not matter "which party is concerned with which issue" in the appeal. The Brumfield opinion, relying on the Sixth Circuit opinion in Hallahan, made no mention of these cases.


         Conner further points to an intervening Supreme Court decision and changes wrought in statute and rule. The tension between Brumfield and earlier cases of this court aside, statutory developments require our turn to the United States' presence in the case-sans its "posture" relative to the appeal.


         As an initial matter, Conner argues that United States ex rel. Eisenstein v. City of New York overruled Brumfield.[9] Eisenstein was a qui tam suit under the False Claims Act.[10] While the FCA allows the United States to intervene in such suits, it declined to do so in Eisenstein's suit.[11] The district court dismissed Eisenstein's complaint. He filed a notice of appeal within the 60-day limit but outside the 30-day limit.[12] The Supreme Court concluded that based on Black's Law Dictionary definitions of "party" and "intervention" and prior caselaw on the nature of intervention, the United States was not a "party" for the purposes of the 60-day deadline when it had declined to intervene, had not brought the litigation, and was not being sued as a defendant-despite its significant economic interest in the case.[13]

         Conner argues that this holding steps on Brumfield's treatment of the United States' "posture" in the appeal as a trigger for the 60-day time limit- hence Brumfield's grant of only 30 days to notice appeal in a contempt proceeding.[14] Eisenstein held at a minimum that the government's presence as a party was required; that its "interest" alone was not enough, even though by definition it had a plain economic interest in the qui tam suit at issue.[15] Conner urges us to read this to further hold that the 60-day deadline is exclusively indexed to whether the United States was a party to the underlying litigation.

         We do not read Eisenstein as overruling Brumfield. Brumfield held that even though the United States was a party, it did not trigger the 60-day period as the government was not in the "traditional posture" relative to the appeal. Eisenstein only held that a government interest in a case to which it was not a party does not trigger the 60-day period. The decision resolved a circuit split as to whether the 60-day limit applied where the United States had a distinct interest, but was not a party.[16] It did not answer whether the United States' party status is always sufficient to trigger the 60-day deadline.


         Even though Eisenstein did not resolve the issue, we conclude that by a fair reading of the 2011 amendments to Federal Rule of Appellate Procedure 4 and 28 U.S.C. section 2107, Brumfield's holding cannot stand.

         In 1999, the year Brumfield was decided, the relevant portion of ...

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