4(b) and After
The ten-day time for filing a notice of appeal in a criminal case under Fed.R.Ap.Proc. 4(b) is not jurisdictional, which means that the court can consider an untimely appeal if the government forfeits a claim of untimeliness failing to raising it.
For many years, both the Second Circuit and the Supreme Court were somewhat careless in using the term “jurisdictional” in the context of time limits and filing deadlines, collectively known as “claim processing rules.” However, a string of Supreme Court cases in the past few years has clarified the terminology: since only Congress can determine a lower federal court’s subject matter jurisdiction, only those claim processing rules that have statutory origins are truly “jurisdictional.” Thus, for example, the seven-day deadline for filing a motion for a new trial under Fed.R.Crim.P. 33(a) is not jurisdictional because it does not derive from a statute. But the thirty-day time within which to file a civil notice of appeal under Fed.R.Ap.Proc. 4(a) is jurisdictional because the rule is merely a codification of 28 U.S.C. 2107(a).
Unlike Rule 4(a), the rule at issue here, Rule 4(b), is not based on a statutory prescription, thus the untimely filing of a criminal notice of appeal does not “withdraw federal jurisdiction over criminal appeals.” Thus, if the government does not raise a Rule 4(b) claim in responding to a criminal appeal, then the appellate court can, but does not have to, consider the merits. If the government properly objects to the untimeliness of a defendant’s appeal, however, then the “mandatory and inflexible” rule must be honored and the appeal will be dismissed, even though the court has not been deprived of subject matter jurisdiction.
The decision leaves open whether a court can, in its discretion, sua sponte, dismiss an untimely appeal.