Judge Posner on pre-briefing dismissal motions

The government may move to dismiss a criminal appeal in advance of full briefing under Federal Rule of Appellate Procedure 27. The government did so in this appeal, contending that the defendant waived his right to appeal when he pleaded guilty.

In a brief opinion, Judge Posner expressed his view that such filings should be, “though not forbidden, discouraged.” According to Judge Posner, the early filing of a motion to dismiss makes sense if the basis is absence of appellate jurisdiction. In that event, there is no point to full briefing. However, where the issue is something short of a jurisdictional challenge, the appellee ought to be allowed to respond to the argument for dismissal within the brief on the merits. Judge Posner observes: “I think it’s better for the government’s motion to be decided when the case is presented to a merits panel for decision, and by that panel.” And so it shall be in this case, on Judge’s Posner’s order.

United States v. Manning, 2014 WL 2566843 (7th Cir. June 9, 2014).