1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0050p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

R

AYMOND E ARL B URCH , J R ., Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-6232

Appeal from the United St ates District Court for the Western District of Kentucky at Bowling Green. No. 1:08-cr-00052-1—Thomas B. Russell, District Judge. Decided and Filed: March 20, 2015 Before: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Kevin M. Schad, OFFICE OF THE FE DERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.

_________________ ORDER

_________________ SUTTON, Circuit Judge. With a district court’s permission, Raymond Earl Burch, Jr., appealed the revocation of his term of supervis ed release after the fourteen-day deadline for filing a notice of appeal. The government moves to dismiss the appeal, clai ming that the district court abused its discretion in excusing the noti ce’s untimeliness. What looks like a simple extension motion (and a simple objec tion to it) raises a not-so-simp le question: Must the United 

### >No. 14-6232 United States v. Burch Page 2

States file a cross-appeal to ch allenge the order on appeal or may it challenge the order through a
motion to dismiss?
Before answering the question, it is worth filling in a few more details about what happened below. On August 21, 2014, the district court revoked Burch’s term of supervised
release. See 18 U.S.C. § 3583(e). Burch had the right to challenge the re vocation on appeal, see id. §§ 3557, 3742(a), though the statute does not specify the time within which he must appeal,
id. § 3742(a). The relevant rules of proce dure provide the deadline. Ru le 4 of the Federal Rules of Appellate Procedure gives a cr iminal defendant fourteen days to file a notice of appeal, Fed. R. App. P. 4(b)(1)(A), and permits a district court to extend the time to file a notice for up to thirty additional days, id. 4(b)(4). On September 26, after the four teen-day deadline had come and gone, Burch filed a notice of appeal and a request for an extension of time. The district court granted the requested extension on October 9, rendering his September 26 notice of appeal timely. See id. ; United States v. Wrice , 954 F.2d 406, 409

− 10 (6th Cir. 1992). The government did not file an appeal (or cross- appeal) of the district court’s October 9 orde r. It now moves to dismiss Burch’s appeal as untimely, alleging that the district court a bused its discretion in granting the extension.
In the normal course, when an appellant files a notice of appeal after the deadlines specified by Appellate Rule 4, the appellee may file a motion to dismiss the untimely appeal with this court. Fed. R. App. P. 27; see, e.g. , Hobbs v. Cnty. of Summit , 552 F. App’x 517, 519 (6th Cir. 2014) (per curiam); Feathers v. Chevron U.S.A., Inc. , 141 F.3d 264, 267 (6th Cir. 1998). But what happens when the target of the appelle e’s argument is a prior order of the district court—in this instance its decision to grant an exte nsion of time to the appella nt to file his notice of appeal?

Two circuits have considered the situation and have come to different views. In a brief opinion, the Third Circuit rejected the motion to dismiss (in a civi l case) and concluded that the appellee must “appeal from the order granti ng the extension of time to appeal.” Amatangelo v. Borough of Donora , 212 F.3d 776, 780 (3d Cir. 2000). That is to say, in the absence of a separate appeal (or cross-appe al) challenging the granting of the extension motion, the court
concluded that it lacked aut hority to dismiss the appeal.No. 14-6232 United States v. Burch Page 3

The Tenth Circuit took the opposite position (in a criminal case) and permitted a motion
to dismiss. “The office of a cross-appeal,” it observed, “is to give the appelle e more than it obtained by the lower-court judgment.” United States v. Madrid , 633 F.3d 1222, 1225 (10th Cir. 2011). But in the context of a granted extensi on, the court reasoned, no cr oss-appeal was needed because “the government was not seeking altera tion of the judgment below in its favor.” Id.
We agree with the Third Circuit and offer a few more reasons for taking this path. The starting point is that litigants di ssatisfied with a district court’ s judgment or order normally must file an appeal challenging the decision. Neither the relevant federal statute nor Appellate Rules 3 or 4 refer to cross-appeals by name. They refer to appeals, and a party dissa tisfied with a district
court’s order is well-served to file one, whether labele d an appeal or cross-appeal, within the relevant timelines. Nor is there anything unusua l about time-extension orders that suggests a different rule should apply to them. It may be unusual for parties to ch allenge time-extension orders (and still more unusual for the government to do so, see 18 U.S.C. § 3742(b)). But there is nothing awkward about treating the order like anyt hing else that the distri ct court did and thus something that must be challenged through a noti ce of appeal. Whether a time-extension order happens at the beginning of the case or at th e end, it remains an orde r readily challengeable through a notice of appeal.
In this instance, the district court issued an order granting Burch more time to file his notice of appeal from the judgmen t. Although the government remained satisfied with the rest of the judgment, it did not agree with th e district court’s exercise of di scretion in the ancillary order. When a party wants an appell ate court to reverse a trial court’s postjudgment order, it customarily files an appeal with respect to that order. See, e.g. , Decker v. GE Healthcare Inc. , 770 F.3d 378, 388 (6th Cir. 2014); Scott v. Metro. Health Corp. , 531 F. App’x 647, 647 (6th Cir. 2013). So too here: The government should have a ppealed from the district court’s order if it thought the court abused its discre tion in granting Burch’s motion fo r an extension of time to file an appeal.
This approach also respects the Supreme Co urt’s directives about when a (largely) prevailing party should file an appeal or cross-ap peal. “[F]rom its earlies t years,” the Court “has recognized that it takes a cross-appeal to justify a remedy in favor of an appellee,” Greenlaw v.No. 14-6232 United States v. Burch Page 4

United States , 554 U.S. 237, 245–46 (2008), or to “attack” a di strict-court “decre e with a view to . . . lessening the right s of [its] adversary,” Jennings v. Stephens , 135 S. Ct. 793, 798 (2015) (quoting United States v. Am. Ry. Express Co. , 265 U.S. 425, 435 (1924)). In this case, where
the district court extended Burch’s time to fi le a notice of appeal, the government’s motion “attack[s]” the district court’s order as an abus e of discretion with a view to lessening Burch’s rights—indeed his right to appeal at all. Id. ; cf. Turi v. Main St. Adoption Servs., LLP , 633 F.3d 496, 505 (6th Cir. 2011). As the go vernment’s goal is to restrict Burch’s right to appeal and not to “support” the rest of the district court’s judgment, see Jennings , 135 S. Ct. at 798, the government should have appealed the di strict court’s order beforehand.
This approach also respects the settings where we do dismiss appeals by motion. One such setting is when we lack subject-matter jurisd iction to hear the appeal. There, however, the defect—whether a missed notice-of-appeal deadline in a civil case or some criminal cases, an absence of jurisdiction at the trial level, or some other such problem—is not forfeitable. Arbaugh v. Y & H Corp. , 546 U.S. 500, 514 (2006). There, indeed, we do not even need a motion to dismiss, much less a cr oss-appeal, to notice the error; a mere whisper at oral argument will do the trick, as will a court’s iden tification of the problem on its own. Id. We also permit motions to dismiss (as opposed to appeals or cross- appeals) that seek to en force a district court’s order, as when a trial court has approved a plea agreement that waives the defendant’s right to appeal. See, e.g. , United States v. Toth , 668 F.3d 374, 378 (6th Cir. 2012). And we permit
motions to dismiss where a criminal defendant has filed an untimely no tice of appeal without
district court authorization. See, e.g. , United States v. White , 876 F.2d 104 (6th Cir. 1989) (table). But in none of those sett ings is the moving party seeking to reverse a district court order. That, however, is just what we have here: a re quest to reverse the district court’s decision to extend the time for filing a notice of appeal.
No doubt this approach differs from the approach of the Tenth Circuit, which reviewed a
district court’s time-extensi on order through the gove rnment’s motion to dismiss and did not require an appeal or cross- appeal from that order. Madrid , 633 F.3d at 1225. But the Tenth Circuit may have misread Supreme Court preceden t in determining when an appellee must file an appeal or cross-appeal. Under the Tenth Ci rcuit’s reading, a cross-appeal is required onlyNo. 14-6232 United States v. Burch Page 5

when the appellee wants “more than it obtained by the lower-c ourt judgment.” Id. The court thus considered the government’s attack on the district court’s time-ex tension order uncovered by the cross-appeal rule because “the governme nt was not seeking alteration of the judgment
below in its favor.” Id. But Jennings makes clear that a cross-a ppeal is required when an appellee attacks an order w ith a view toward “enlargin g his own rights thereunder or of lessening the rights of his adversary.” 135 S. Ct. at 798 (em phasis added). The latter possibility is this

case.
That leaves the question wh ether we may overlook the government’s failure to file a cross-appeal and address the merits of its motion anyway. We think not, as the requirement is mandatory and consistently followed. “[I]n more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single [Supreme Court case] has ev er recognized an exception to
the rule.” El Paso Natural Gas Co. v. Neztsosie , 526 U.S. 473, 480 (1999). The government offers no reason to forge a new exception here.
For these reasons, we deny the governme nt’s motion to dismiss the appeal.

ENTERED BY ORDER OF THE COURT

________________________________ Deborah S. Hunt, Clerk