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holding Flood Control Act immunizes United States from injury sustained by plaintiff on Lake Havasu in Arizona
Summary of this case from In re Katrina Canal Breaches Consolidated LitigationOpinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted July 10, 1997.
MEMORANDUM
Appeal from the United States District Court for the Central District of California, No. CV-91-00395-GLT, Gary L. Taylor, District Judge, Presiding.
Before: CANBY and THOMAS, Circuit Judges, and KING, Senior U.S. District Judge.
Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation.
We consider in this appeal whether an attorney's confusion about the "good cause" and "excusable neglect" standards constitutes "excusable neglect" sufficient to extend the time for filing a notice of appeal. We conclude that a mistake of law does not constitute excusable neglect and dismiss the appeal for lack of jurisdiction.
I
For the purposes of this appeal, only a portion of the procedural history is consequential. The district court entered summary judgment in favor of Defendants Wagner and Simon on September 1, 1993. Neither Reynolds nor the Eckert Estate filed timely notices of appeal within the thirty-day limit provided by Rule 4(a)(1) of the Federal Rules of Appellate Procedure. Instead, on October 4, 1993, three days after the time to appeal had expired, the Eckert Estate filed a Motion for Extension of Time for Filing Notice of Appeal pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Reynolds did not file any motion. The district court granted the motion for an extension without explanation on October 28, 1993, giving Reynolds and the Eckert Estate until November 15, 1993 to file their notices of appeal. The Eckert Estate filed a notice of appeal on November 15, 1993. Reynolds did not file a separate notice of appeal.
At oral argument, counsel for Reynolds and the Eckert Estate properly conceded that because Reynolds did not file a notice of appeal, his appeal was not before the Court. This concession makes it unnecessary for us to decide whether Reynolds' listing in the caption of the Eckert Estate's notice of appeal was sufficient to constitute an independent notice of appeal. See All Pacific Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1430-31 (9th Cir.1993); Allen Archery, Inc. v. Precision Shooting Equip., Inc., 857 F.2d 1176, 1176 (7th Cir.1988).
We remanded this cause to the district court to determine whether Reynolds and the Eckert Estate had satisfied the "excusable neglect" standard enunciated in Pioneer v. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993) to permit them to file an untimely notice of appeal. Reynolds v. Wagner, 55 F.3d 1426, 1429 (9th Cir.1995). The district court on remand determined that there was excusable neglect sufficient to extend the time for filing a notice of appeal. Wagner and Simon each appealed this ruling. Upon stipulation of the parties, we recalled the mandate in the previous appeal and all pending appeals were consolidated.
II
The filing of a timely notice of appeal is mandatory and jurisdictional. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). Filing a notice of appeal in compliance with the Federal Rules of Appellate Procedure is therefore of the "utmost importance." 16A Charles A. Wright et al.,Federal Practice and Procedure § 3950.1 (2d ed.1996). An appeal by a party other than the United States from a final order or judgment of a district court is timely if filed within thirty days of the entry of the order or judgment from which the appeal is taken. Fed. R.App. P. 4(a)(1).
Rule 4(a) (5) of the Federal Rules of Appellate Procedure permits the district court, "upon a showing of excusable neglect or good cause, [to] extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time" to appeal. In Oregon v. Champion Int'l Corp., 680 F.2d 1300, 1301 (9th Cir.1982), we adopted the Advisory Committee Notes to Rule 4(a)(5) and held that a motion for extension filed within the initial thirty-day appeal period is judged by the "good cause" standard. A motion filed after the time to appeal has expired is to be granted only for "excusable neglect." Id. "The Supreme Court concluded in Pioneer Inv. that the determination of whether neglect is 'excusable' is ultimately an equitable one, taking into account all the relevant circumstances surrounding the party's omission." Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir.1996) (citing Pioneer Inv. Servs., 507 U.S. at 395). These circumstances include the danger of prejudice to the non-movant, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was in the reasonable control of the movant, and whether the movant acted in good faith. Id.; Pioneer Inv. Servs., 507 U.S. at 395.
The Eckert Estate's notice of appeal was filed after the initial thirty-day period, so it must demonstrate excusable neglect. In its motion for extension, counsel for the Eckert Estate stated only that he had not yet met with his client to decide whether or not to pursue the appeal. The district court found counsel's neglect excusable because "the extension request filing was only one business day after the normal time expiration, there is no prejudice to the other side, there is no effect on the judicial proceedings, there is no indication of bad faith, and the reason for the delay is not unreasonable." We find that the district court abused its discretion in finding "excusable neglect" under the circumstances of this case.
Counsel simply failed to confer with his clients within the thirty-day period. Nothing prevented him from doing so, nor from filing either a timely notice of appeal or motion for extension of time. This is crucial when considering the "relevant circumstances surrounding the ... omission" in this case. Pioneer Inv. Servs., 507 U.S. at 395. Although Reynolds' and the Eckert Estate's reason for the delay in pursuing the appeal may have been sufficient "good cause" if the motion had been filed within the initial thirty-day period, it was insufficient to establish "excusable neglect"--as the Eckert Estate properly conceded on appeal. That the extension request was filed only one business day after expiration of the initial appeal period is irrelevant. What is relevant is the length of delay in the filing of the notice of appeal. Id. Here, the notice of appeal was not prepared even by the time of the hearing on the extension motion on October 28, 1993, twenty-six days after the initial appeal period expired. Further, the lack of prejudice to the appellee is of relatively little importance: "There is unlikely ever to be harm in the Rule 4(a)(5) setting, because the neglectful appellant has only 30 days after the expiration of his time for appealing in which to request relief." Prizevoits v. Indiana Bell Tel. Co., 76 F.2d 132, 134 (7th Cir.1996). "The word 'excusable' would be read out of the rule if inexcusable neglect were transmuted into excusable neglect by a mere absence of harm." Id.
This case is distinguishable from Marx, wherein we held that a district court did not abuse its discretion in finding excusable neglect upon counsel's proper showing of inability to confer with the plaintiffs in a class action suit within the initial thirty-day period. Marx, 87 F.3d at 1053. There was no explanation tendered here except essentially that the two clients and one attorney were busy. If this explanation were held to satisfy the "excusable neglect" standard, the difference between "good cause" and "excusable neglect" would be emasculated.
III
Counsel for the Eckert Estate also argues that he made a mistake of law in believing that the "good cause" standard applied to motions filed after the initial thirty-day period. He contends this mistake of law constitutes "excusable neglect" sufficient to satisfy the Pioneer Inv. Servs. standard. It does not. It is well settled that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect." Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir.1994) (quoting Pioneer Inv. Servs., 507 U.S. at 392, 113 S.Ct. at 1496). See also Prizevoits, 76 F.2d at 134 (error in interpreting court rules inexcusable unless the error is a "plausible misinterpretation"); United States v. Hooper, 43 F.3d 26, 29 (2d Cir.1994) (same).
Here, counsel's proffered explanation is that he only looked to the text of Rule 4(a)(5) and did not consider either the Advisory Committee Notes or any case law. Although the text of Rule 4(a)(5) is not a model of clarity, the Advisory Committee Notes and decisions construing the Rule could hardly be clearer. Oregon v. Champion Int'l Corp. has been the law of this Circuit for fifteen years and virtually every other circuit court considering the rule has construed it the same way. See Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 532-33 (4th Cir.1996) (collecting cases). The words of our decision in Kyle, 28 F.3d at 931-32, apply with equal force here:
In this case, counsel has not presented a persuasive justification for his misconstruction of nonambiguous rules. Accordingly, there is no basis for deviating from the general rule that a mistake of law does not constitute excusable neglect.
Because Reynolds and the Eckert Estate failed to file a timely notice of appeal, we lack jurisdiction to consider their appeal. We find the Wagner and Simon appeals to be well-taken and reverse the district court's finding of excusable neglect.
Nos. 96-55303 and 96-55304 are REVERSED and No. 93-56629 is DISMISSED. Wagner and Simon are awarded their costs on appeal.