119 F.3d 1393 (9th Cir. 1997), 95-17195, George v. Camacho

Docket Nº:95-17195, 96-15012.
Citation:119 F.3d 1393
Party Name:Op. Serv. 5629, 97 Daily Journal D.A.R. 9122 Kathleen A. GEORGE, Plaintiff-Appellant, v. Luis S. CAMACHO, personally and in his capacity as Acting Director and Director of the CNMI Office of Personnel Management; Agnes M. McPheters, personally and in her capacity as President of Northern Marianas College; Eugene A. Santos, personally and in his cap
Case Date:July 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1393

119 F.3d 1393 (9th Cir. 1997)

Op. Serv. 5629,

97 Daily Journal D.A.R. 9122

Kathleen A. GEORGE, Plaintiff-Appellant,


Luis S. CAMACHO, personally and in his capacity as Acting

Director and Director of the CNMI Office of Personnel

Management; Agnes M. McPheters, personally and in her

capacity as President of Northern Marianas College; Eugene

A. Santos, personally and in his capacity as Chairman of the

CNMI Civil Service Commission of the Commonwealth of the

Northern Mariana Islands, Defendants-Appellees.

Nos. 95-17195, 96-15012.

United States Court of Appeals, Ninth Circuit

July 16, 1997

Submitted Jan. 24, 1997.[*]

Page 1394

Pamela Brown, Long & Brown, Oleai, Saipan, MP, for Plaintiff-Appellant.

Robert B. Dunlap II, Assistant Attorney General, Saipan, MP; Kenneth L. Govendo,

Page 1395

Saipan, MP; and Linda M. Wingenbach, Eason and Halsell, Saipan, MP, for Defendants-Appellees.

Appeal from the United States District Court for the Northern Mariana Islands; Alex R. Munson, Chief Judge, Presiding. D.C. No. CV-94-00026-ARM.


REINHARDT, Circuit Judge:

Kathleen A. George appeals from a grant of summary judgment in favor of appellees on her claims of discrimination, breach of fiduciary duty, and intentional or negligent infliction of emotional distress. We took the case en banc to reconsider our rule announced in Commonwealth of Northern Mariana Islands v. Mendiola, 976 F.2d 475 (9th Cir.1992), that litigants in the Northern Mariana Islands are afforded a seven-day extension for filing notices of appeal. We overrule that holding and now hold that all litigants must file their notices of appeal within the time allotted in Federal Rule of Appellate Procedure 4 and Ninth Circuit Rule 26-1. Because we apply our ruling prospectively, we also hold that George's appeal is timely.


Appellant George, a white female, filed suit against the President of Northern Mariana College as well as several members of the Civil Service Commission and the Commonwealth of the Northern Mariana Islands. The suit alleged intentional race discrimination in contravention of 42 U.S.C. §§ 1981 and 1985(3) as well as the violation of George's rights to freedom of association under the First Amendment and due process under the Fourteenth Amendment. George contended, in part, that she was discriminated against because she is white. 1 The district court granted defendants' motion for summary judgment and entered its final order on September 13, 1995. Although Federal Rule of Appellate Procedure 4(a) provides that notices of appeal in civil cases must be filed within 30 days of the date of the entry of judgment, George filed her notice on October 16, 1995, 33 days after that date. 2

In her opening brief to this court, George asserts that her appeal was timely filed pursuant to this court's ruling in Mendiola. There, we held that an appeal from the Northern Mariana Islands that was filed seven days after the generally applicable time limit was timely filed because "[u]nder 9th Cir. R. 26-1, the deadline for filing appeals from the Northern Mariana Islands is extended by seven days." Id. at 480 n. 4. The three-judge panel assigned to hear George's appeal called for review by the en banc court and asked that we overrule the Mendiola holding.

Both the majority and the dissent agree that Mendiola was wrongly decided but that it remains the law of this circuit nevertheless, until it is overruled by this court sitting en banc or by the Supreme Court. We diverge only on whether when we overrule Mendiola, as we now do, we must apply our ruling retroactively, so as to render appeals that under the law of this circuit were timely when filed, untimely; if so, we must forfeit George's right to appeal and her interests in her underlying claims without prior notice to her or similarly situated litigants of our change to the rules, or any opportunity to comply with the revised rule. 3 We conclude

Page 1396

that we are not compelled to act in so arbitrary and unfair a manner and that we may apply our new ruling prospectively. 4


Ninth Circuit Rule 26-1 extends the filing deadlines for the districts of Guam and the Northern Mariana Islands "[e]xcept as provided by the order of the court, or by FRAP 26(b) ...." 9th Cir. R. 26-1.

Federal Rule of Appellate Procedure 26(b) states that:

The Court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal....

Fed. R.App. P. 26(b). The panel in Mendiola failed to properly read Ninth Circuit Rule 26-1 and Federal Rule of Appellate Procedure 26(b) together. When they are so read, it is clear that we erred in holding that the deadline for filing appeals in cases arising in the Northern Marianas is extended by a period of seven days. The rule announced in Mendiola that provides for such an extension is therefore overruled. 5



It is a well-settled principle that this court cannot hear an appeal that was not timely filed, as we have no jurisdiction to do so. See Browder v. Director, Dep't. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.E.2d 521 (1978). George's appeal, however, was timely filed at the time she filed it. The issue before us, therefore, is whether this en banc decision that shortens the time period for filing notices of appeal from the Northern Mariana Islands shall be applied retroactively so as to render an appeal that was timely filed when filed, untimely.

Applying our decision retroactively would be contrary to fundamental principles of fairness and due process of law, and would call into question the very integrity of this court's processes. Announcing a rule that allows litigants a specific period of time within which to appeal and then several years later declaring that we've changed our minds and will not recognize appeals that were filed within the proscribed period would be carrying the "gotcha" principle beyond all previous limits. It would also be wholly unprecedented.

We must examine the question before us in context. The Supreme Court has noted that, "[r]etroactivity is not favored in the law." Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). Therefore, there is a strong presumption against retroactive application. See, Landgraf v. USI Film Products, 511 U.S. 244, 264, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994). As the Court has forcefully stated, "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Id. This principle is of particular importance when time limits are involved and litigants have been advised of the time by which they must decide upon their course of action. When George filed her notice of appeal she did so within the time period afforded her by this circuit. Whether the rule announced in Mendiola was correct or not, history cannot be retroactively reversed so as to change that fundamental fact.

Considerations of fairness that presumptively prohibit retroactive application of the law are essential "[i]n a free, dynamic society

Page 1397

[where] creativity ... is fostered by a rule of law that gives people confidence about the consequences of their legal actions." Id. For that reason, among others, courts are reluctant to "sweep away settled expectations suddenly...." Id. It would be difficult to imagine a more compelling circumstance for abiding by established legal rules than is presented in the case before us--a case in which we are asked to hold that time limits established by court decisions construing the Federal Rules of Appellate Procedure may be shortened without prior notice to litigants, and that the new time limits may be applied retroactively to pending appeals that were timely filed under our court-announced rule. The consequence of such a holding would be that litigants who complied with our rules by timely filing their appeals in accordance with our instructions would lose their rights to appeal, thereby forfeiting whatever underlying interests may have been affected by adverse district court decisions. Moreover, we are asked to hold that we are compelled to reach that result--a result that would appear to be unconscionable to most reasoning persons whether learned in the law or not.

The dissent asserts that because rules governing the time for appeal are jurisdictional we are required to forfeit the rights of any individual who may have filed an appeal during the extended time period we held applicable in Mendiola. 6 The dissent does not argue that such a result would be fair or wise, but rather that our hands are tied by a global sentence in Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981), subsequently reiterated in Budinich v. Becton Dickinson and Company, 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988).

In Firestone, the Supreme Court was faced with the question of whether an order denying a motion to disqualify counsel was final within the meaning of 28 U.S.C. § 1291. The Court held that the order was "not appealable under § 1291 prior to final judgment in the underlying litigation." Id. at 449 U.S. at 379, 101 S.Ct. at 676. Because the "finality requirement of § 1291 is jurisdictional in nature," the Court applied its holding to the case before it. The practical...

To continue reading