PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4771

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ADRIAN DEMOND HYMAN,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at 

Greensboro. Loretta C. Biggs, District Judge. (1:15-cr-00311-LCB-1)

Argued: October 24, 2017 Decided: January 22, 2018

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Motion to dismiss granted by published opinion. Judge Agee wrote the opinion, in which

Judge Wilkinson and Judge Duncan joined.

ARGUED: Sarah Marie Powell, DUKE UNIVERSITY SCHOOL OF LAW, Durham, 

North Carolina, for Appellant. Vijay Shanker, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Blanco, Acting 

Assistant Attorney General, Trevor N. McFadden, Deputy Assistant Attorney General, 

Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C.; Sandra J. Hairston, Acting United States Attorney, Kyle David 

Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Greensboro, North Carolina, for Appellee.
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AGEE, Circuit Judge:

Adrian Demond Hyman filed his notice of appeal late in violation of the Federal 

Rules of Appellate Procedure. In response, the Government filed a motion to dismiss the 

appeal due to his failure to meet the requirement for timely filing. Hyman contends the 

Government was tardy in filing the motion to dismiss and that delay effectively cures any 

failure to observe the requirements of the Rules on his part. For the reasons discussed 

below, we find Hyman’s argument to be without merit and grant the Government’s 

motion to dismiss the appeal.

I.

Hyman pleaded guilty in the United States District Court for the Middle District of 

North Carolina to one count of distribution of cocaine hydrochloride in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(C). In a judgment order filed June 27, 2016, the court 

sentenced Hyman to fifty-seven months’ imprisonment with three years of supervised 

release. On November 22, 2016, Hyman filed a pro se notice of appeal challenging his 

sentence.1 This Court appointed counsel and ordered briefing. Hyman filed his opening 

brief and joint appendix on February 13, 2017. 

On March 2, 2017, the Government filed a motion to dismiss the appeal and 

suspend briefing, and we suspended briefing pending our ruling on the motion to dismiss.

In its motion, the Government argued that Hyman had violated Federal Rule of Appellate 

 1 The notice of appeal was dated November 2, 2016, and the envelope was postmarked on 

November 15, 2016.
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Procedure 4(b)(1)(A) by failing to file a notice of appeal within fourteen days of the 

district court’s judgment order and that delinquency required dismissal of the appeal. 

Hyman responded that the Court should allow the untimely appeal because the 

Government unnecessarily delayed its filing of the motion to dismiss until after he had 

filed his opening brief. The Government did not reply. We calendared the appeal and 

motion to dismiss for oral argument and resumed the briefing schedule.

In its response brief on appeal, the Government specifically argued that it was 

permitted to file a motion to dismiss pursuant to our Local Rule 27(f). Hyman did not 

respond to this contention in his reply brief. We heard oral argument and now grant the 

Government’s motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 

18 U.S.C. § 3742(a).

II.

Rule 3(a)(1) of the Federal Rules of Appellate Procedure mandates the timely 

filing of a notice of appeal in accordance with Rule 4. In turn, Rule 4(b)(1)(A) requires a 

criminal defendant to file his notice of appeal within fourteen days of the entry of the 

district court’s judgment of conviction.2 Since Hyman’s final order of conviction was 

entered in the district court on June 27, 2016, he was required to file his notice of appeal 

no later than July 11, 2016. See Fed. R. App. P. 4(b)(1)(A). Consequently, Hyman’s 

 2 Rule 4(b)(3) extends the time to file to fourteen days from the resolution of certain posttrial motions, and Rule 4(b)(4) also permits the district court—upon motion or sua sponte—to 

extend the filing period by thirty days “[u]pon a finding of excusable neglect or good cause.” 

Neither rule applies in this case.
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notice of appeal filed November 22, 2016, and dated November 2, 2016, was over three

months late. 

The parties agree that the late filing of a notice of appeal does not deprive the

Court of subject matter jurisdiction, but Rule 4 is a mandatory claim-processing rule. See 

United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009) (holding that a violation of 

Rule 4(b) does not deprive the Court of jurisdiction); see also Manrique v. United States, 

581 U.S. __, 137 S. Ct. 1266, 1271 (2017) (refusing to determine whether Rule 4 is 

jurisdictional but stating that “[t]he requirement that a defendant file a timely notice of 

appeal . . . is at least a mandatory claim-processing rule”). A mandatory claim-processing 

rule—like Rule 4(b)(1)(A)—is inflexible “but ‘can nonetheless be forfeited if the party 

asserting the rule waits too long to raise the point.’” Eberhart v. United States, 546 U.S. 

12, 15 (2005) (per curiam) (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)).

In addition to the Federal Rules of Appellate Procedure, our Court has 

promulgated Local Rules that also apply to cases in this Circuit. See Fed. R. App. P.

47(a) (permitting each court of appeals to, “after giving appropriate public notice and 

opportunity for comment, make and amend rules governing its practice”). Local Rule 

27(f) states, “Motions to dismiss based upon the ground that the appeal is not within the 

jurisdiction of the Court or for other procedural grounds may be filed at any time.”

Local Rule 27(f) is a broad rule that allows a party to move to dismiss (1) on 

procedural grounds, and (2) at any time. We apply the rule in accordance with its plain 

language. See United States v. Shank, 395 F.3d 466, 469 (4th Cir. 2005) (first rejecting 

the appellant’s arguments due to “the plain language of the rule”). Local Rule 27(f)
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clearly and unambiguously allows a party to file a motion to dismiss on procedural 

grounds at any time.

Because we are required to strictly apply claim-processing rules if they are timely 

raised, and because our Local Rules permit a party to raise the timeliness issue at any 

time, we grant the Government’s motion to dismiss. Eberhart, 546 U.S. at 18 

(recognizing that “when the Government objected to a filing untimely under [Federal 

Rule of Criminal Procedure 37, the predecessor to Federal Rule of Appellate Procedure 

4(b)], the court’s duty to dismiss the appeal was mandatory”). In fact, if we were to deny 

its motion to dismiss, we would in effect be sanctioning the Government for following 

our own Rule. Under the Federal Rules of Appellate Procedure, we cannot do so. See

Fed. R. App. P. 47(b) (“No sanction or other disadvantage may be imposed for 

noncompliance with any requirement not in federal law, federal rules, or the local circuit 

rules unless the alleged violator has been furnished in the particular case with actual 

notice of the requirement.”).

In his response to the Government’s motion to dismiss, Hyman cites to our 

precedent for the proposition that a party must raise the timeliness issue as early as 

possible. See Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 710 F.3d 527, 534 (4th 

Cir. 2013); Peterson v. Air Line Pilots Ass’n, Int’l, 759 F.2d 1161, 1164 (4th Cir. 1985).

These cases, however, address affirmative defenses at trial, not appellate 

counterarguments. Hyman also relies on cases from the Seventh and D.C. Circuits to 

argue that the Government should have filed its motion before Hyman filed his opening 

brief. See Ramos v. Ashcroft, 371 F.3d 948, 950 (7th Cir. 2004); Miss. River 
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Transmission Corp. v. FERC, 969 F.2d 1215, 1217 n.2 (D.C. Cir. 1992). However, the 

rules of those circuits regarding motions to dismiss differ from our own and have no 

application to cases in this Circuit, which are subject to the Local Rules of the Fourth 

Circuit.

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Hyman did not address the application of Local Rule 27(f) in his briefs, even after 

the Government cited to the Rule in its brief as the basis for granting the motion to 

dismiss the appeal. When asked at oral argument to articulate a standard for establishing 

the point at which a motion to dismiss would be untimely and deemed waived, Hyman 

stated only that the Government was simply too late in this case. Hyman’s difficulty in 

articulating a standard reflects the frailty of attempting to insert a nebulous equity 

argument in the face of a clear, mandatory claim-processing rule. Moreover, Hyman 

never identified any prejudice he suffered by virtue of the timing of the Government’s 

motion to dismiss.

Finally, our recent decision in United States v. Oliver, __ F.3d __, 2017 WL 

6505851 (4th Cir. Dec. 20, 2017), is not inapposite. In that case, the Court determined the 

conditions necessary to warrant the exercise of its inherent power sua sponte under Local 

Rule 27(f), which states in pertinent part, “The Court may also sua sponte summarily 

dispose of any appeal at any time.” Within its analysis, the Court addressed when a party 

 3 The D.C. Circuit requires a party to file a motion to dismiss within forty-five days of the 

docketing of the appeal, and that deadline is mentioned in the Mississippi River Transmission 

Corp. case. See D.C. Cir. R. 27(g)(1). The Seventh Circuit has no rule regarding motions to 

dismiss and is therefore free to fashion case-specific rules. By contrast, we are constrained by 

our Local Rule 27(f).
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may file a motion to dismiss, stating, “[I]f the [respondent] fails to object promptly to an 

appeal’s untimeliness in either its merits brief or an earlier motion to dismiss, it generally 

forfeits the right to do so.” Oliver, 2017 WL 6505851, at *2. The Court, however, 

recognized the broad language of Local Rule 27(f) in allowing a party to file a motion to 

dismiss “at any time” and declined to decide the limits of that part of the Rule, although it 

did determine that the Government had forfeited its right to move for dismissal because it 

did not object to the untimely appeal “until well after the merits briefing.” Id. at *2 & n.2. 

As in Oliver, we decline to determine the boundaries of Local Rule 27(f). Regardless, 

under whatever limitations may cabin the Rule, the Government here filed its motion to 

dismiss for untimeliness well within any limits recognized in Oliver because the 

Government raised the dismissal argument before filing its response brief and within that 

brief. Other than his argument that the Government waived the right to file the motion to 

dismiss by virtue of the time of its filing, Hyman raises no other arguments as to the 

motion to dismiss.

For all these reasons, we conclude that the Government’s motion to dismiss was 

timely: “The court of appeals may, in its discretion, overlook defects in a notice of appeal 

other than the failure to timely file a notice.” Manrique, 137 S. Ct. at 1274 (second 

emphasis added). Therefore, the Government’s motion to dismiss Hyman’s untimely 

appeal is granted. The appeal is dismissed.

DISMISSED