In U.S. v. Jenkins, the U.S. Court of Appeals for the Fourth Circuit handed down an opinion with an interesting wrinkle for appellate practitioners. It took up the question of when an appellate record that’s incomplete, on account of a clerical error, can be fixed.
Ordinarily, when an appellant files a notice of appeal, the District Court loses jurisdiction over the case. In Jenkins, though, a written opinion from the trial judge got left off the docket until after the appellant noted his appeal.
The late-filed opinion was important to the case. It was in that opinion that the District Court explained its ruling denying Jenkins’s request for compassionate release from incarceration. Without the opinion, the appellate court would not have been able to assess whether the District Court properly considered Jenkins’s request or whether the District Court had sufficient reasons for denying it.
On appeal, Jenkins asked the Fourth Circuit to refuse to consider the District Court’s opinion. He argued he filed his notice of appeal on time, the opinion from the District Court was late, and late means late. Jenkins, no doubt, figured that without the District Court’s opinion to consider, he stood a better chance of winning his appeal.
The Fourth Circuit disagreed.
Jenkins was right that the opinion wasn’t filed on time. The reason for the late filing, though, made the difference in the case. The Court of Appeals found the only reason the opinion was filed late was because of a clerical error. When the District Court ruled on Jenkins’s request, that Court issued a form order denying it. At the same time, it issued a written opinion explaining the reasons for the short form order. Although the order got docketed on November 10, 2020, the opinion didn’t get docketed until twenty days later. In the interim, Jenkins filed his notice of appeal.
The appellate court first noted that a clerical error – in this case, the late docketing of the opinion by the clerk – can be corrected by a district court at any time. Note that the ability to correct a clerical error “at any time” is because Federal Rule of Criminal Procedure 36 says just that. Civil practice in the federal courts is different. Federal Rule of Civil Procedure 60 permits correction of clerical errors by the clerk or the court “[b]ut after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.”
In Jenkins’s case, the Court of Appeals noted that the error was just that – a mistake. Importantly, the late docketing of the opinion wasn’t an after-the-fact attempt by the trial court to rationalize its short order. Also, Jenkins suffered no real prejudice. The opinion was available to him a week after he filed his notice of appeal and for many months before he filed his opening brief in the Court of Appeals.
The Fourth Circuit noted, too, that docketing the opinion after the notice of appeal was filed was not an exercise of the District Court’s “jurisdiction” in the case. It was just a correction of the clerical error. The case, no doubt, would have been decided differently if the District Court had written an explanatory opinion after the notice of appeal was filed.
There’s a good argument, because the criminal and civil rules are different, that if this case had been a civil case in federal court, correcting the clerical error after the notice of appeal was filed probably would have required leave of the appellate court. Virginia state court practitioners should be mindful, too, that Virginia’s Rule 1:1 sets a hard and fast divestment of a trial court’s jurisdiction after just 21 days after a final judgment. That rule contains no explicit exception for correcting clerical or any other kind of errors. Virginia Code Section 8.01-428 , however, generally permits correction of clerical errors at any time except when an appeal in the case is pending, and then with leave of the appellate court.
Everyone makes mistakes. That’s an occupational hazard of being human. Our appellate rules provide a mechanism for fixing them. Practitioners should pay close attention, though, to the rules governing the fixes to make sure the things that went wrong get undone properly.