Legal analysts are scratching their heads over the Justice Department's filing of its notice of intent to appeal in the Alaska Senate race case. Some experts said the DOJ may have messed up its case if it doesn't act quickly to fix it.
President Donald Trump's administration tried to interfere in the Alaska Senate race, arguing that if the candidates were close, the race shouldn't be certified because two Dan Sullivans were on the ballot. The case was dismissed, with the court saying the administration had no standing. The issue had already been litigated over the summer and decided by the Alaska Supreme Court with requirements for how the names would appear on the ballot to distinguish them.
Still, the administration appealed the case, or rather, it tried to tell the court it intended to appeal.
But the DOJ's filing Sunday left analysts confused because it identified itself as a "notice of appeal," but the body of the document didn't say what such a notice would say. So, the larger question is how the court would treat such a document. Does it start the clock on the appeals process? Experts don't think so.
"DOJ's notice of appeal, filed a few hours ago, in US v. Alaska is not worded as a Notice of Appeal is normally worded. It does not say the court to which the ruling is being appealed (the Ninth Circuit)," said Geidner, who runs the "Law Dork" Substack.
He explained that it isn't worded like a typical notice of appeal because it omits the court to which the case is being appealed. It should be the Ninth Circuit Court of Appeals.
He then flagged it as violating "Form 1 of the Federal Rules of Appellate Procedure," offering, "If you need help, DOJ..."
The DOJ skipped the specific language it must use.
"Another thing: It only says they're intending to appeal. What are you doing?" he asked, as he kept reading through the filing.
University of Minnesota Law School Professor Charlotte Garden cited Appellate Procedure Rule 3(c)(1). She added that she doesn't think a filing missing that requirement can actually "count as a 'notice of appeal.'"
It means that the clock isn't ticking on the appeals process. The DOJ would file a "notice of appeal" and then submit the full appeal. This DOJ filing doesn't appear to do either.
As Garden explained, "There are only 3 things the notice has to contain, and they missed one of them."
She recalled a major case Steve Goldblatt argued that set the case law on such filings. She commented it's "incredible that we're now talking about" the Justice Department filing such a notice that bungled the rules.
"Steve had collected various horror stories about people who messed up the notice of appeal — mostly by miscounting the days, or appealing from the wrong order. The lesson was always: if you mess this up and you don't fix it before the time to appeal runs, you're screwed," she added.
So, the DOJ can label it a "notice of appeal," but it isn't, and the filing doesn't do anything.
Semi-retired litigator John Allen commented, "Hopefully, the Ninth Circuit will sit on this case until it has grown an Alaskan beard, just the way the 11th Circuit Court has been sitting on the appeal of Judge Cannon's permanent sealing of Jack Smith's report on the stolen classified documents case."
