United States v. William McKnight

ADAMS, Circuit Judge,

dissenting.

I agree with the majority that this Court does not have jurisdiction to consider the merits of this appeal at this time. My only disagreement is whether this Court has the power to remand the case to the district court so that that court may determine whether appellant’s failure to file his appeal within the sixty-day period allowed by Rule 4(a) may be explained as excusable neglect and the appeal validated in accordance with that rule. In my view, a remand is both within our power and, on the facts here, appropriate.

Appellant William McKnight is presently serving a thirty year sentence after pleading guilty to certain narcotics charges. He sought relief from the district court by filing a 28 U.S.C. § 2255 petition, but such relief was denied on December 21, 1977. McKnight, who has a sixth-grade education and is pursuing this collateral attack without the benefit of an attorney, has alleged in a letter to this Court, dated March 13, 1978, that he did not receive a copy of the district court order denying him relief until that date. He thereupon immediately informed this Court that he wished to appeal, but the regular sixty-day period for filing such an appeal had passed even before he had been notified of the district court order. If these statements are true, excusable neglect might well be demonstrated and, given the pro se status of this appellant, the record would seem clearly to raise this possibility. Of course, this Court is not obliged to remand every case in which a notice of appeal is filed after the regular period for appeal but within the thirty-day extension within which an appeal may be validated upon a finding of excusable neglect. But where, as here, an allegation of excusable neglect appears on the record, such a remand to ascertain facts upon which jurisdiction might rest would appear to be in order.

If excusable neglect is found, then we have jurisdiction; if, on the other hand, excusable neglect cannot be shown, then we do not have jurisdiction. Because Rule 4(a) assigns the task of determining excusable neglect to the district court, our jurisdiction over this appeal is uncertain until the district court makes the necessary finding. But we do have jurisdiction, meanwhile, for the limited purpose of determining whether jurisdiction exists, and this limited jurisdiction would support a remand here to permit such a finding to be made. 1

The majority, in dismissing the appeal rather than remanding to the district court, concludes that remand is beyond our authority because, if the district court were to *234 find that excusable neglect had not been shown, this Court would have been at all times without jurisdiction over the appeal and thus would not have had the power to remand. 2 This conclusion, however, ignores the limited nature of our power to establish whether or not we have jurisdiction. If the district court determines that excusable néglect cannot be shown, such a finding answers the question of appellate jurisdiction and this Court’s authority over the appeal would be at an end. On the other hand, a finding by the district court that excusable neglect has been shown would establish this Court’s jurisdiction, and we could then proceed to consider the merits of the appeal.

A remand for the limited purpose of ascertaining facts upon which the question of jurisdiction turns is not a novel exercise of authority by a federal appellate tribunal. As the majority concedes, it is a practice that has been followed at one time or another by nearly every federal court of appeals. 3 More importantly, until today it was a procedure employed by this Court. Torockio v. Chamberlain Manufacturing Co., 456 F.2d 1084 (3d Cir. 1972) (en banc); see Rothman v. United States, 508 F.2d 648 (3d Cir. 1975). 4

In the present case the decision to dismiss, rather than remand, may or may not have great significance to this appellant. As the majority observes, McKnight may still make an application to the district court for a ruling upon the question of excusable neglect even after this appeal is dismissed. Then, if successful before the district court, he may appeal to this Court and have his appellate hearing on the merits of his petition.

Whether this opportunity will be available in practice to all future appellants, however, is open to question. In view of the custom of this and other courts of frequently dismissing appeals with one sentence orders it may be that some pro se litigants will not adequately be put on notice of their possible remedy in the district court. In such event, the practice adopted today may in some future cases hamper us in adequately assuring pro se appellants the fullest opportunity to present their appeals — an opportunity which, I believe, we should be at pains to preserve.

. United States v. United Mine Workers, 330 U.S. 258 , 292 n. 57, 67 S.Ct. 677 , 91 L.Ed. 884 (1947); Des Moines Navigation and Railroad Co. v. Iowa Homestead Co., 123 U.S. 552, 559 , 8 S.Ct. 217 , 31 L.Ed. 202 (1887).

. Majority opinion at n. 6.

. Majority opinion at n. 5.

. The majority suggests that we remanded in Torockio because that case overruled prior case law in this Circuit. Although it is true that Torockio overruled a prior case, that was not the basis for the remand there, and there appears to be no reason for distinguishing the procedure employed by the Court en banc there from the majority’s disposition here. Indeed, if the district court in Torockio were to have concluded that excusable neglect was not present, the limited jurisdiction of this Court would have ended just as it would end here upon such a finding. This possibility was recognized by this Court in Torockio : “This is not to suggest that a belated notice of appeal which has not been so validated by the district court will qualify the appeal for consideration by this Court.” 456 F.2d at 1087 . There, as here, the remand was justifiable only in order to determine whether there was jurisdiction over the merits.