United States v. Bowen

• Decision Date: 14 November 1962
• Docket Number: No. 19862.,19862.
• Citation: 310 F.2d 45
• Parties: UNITED STATES of America, Appellant, v. Robert E. BOWEN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

310 F.2d 45 (1962)

UNITED STATES of America, Appellant, v. Robert E. BOWEN, Appellee.

No. 19862.

United States Court of Appeals Fifth Circuit.

November 14, 1962.

Morton Hollander, David L. Rose, Attys., Dept. of Justice, Washington, D. C., John D. Guilfoyle, Asst. Atty. Gen., Edward F. Boardman, U. S. Atty., for appellant.

Before JONES and BELL, Circuit Judges, and ESTES, District Judge.

JONES, Circuit Judge.

In this action the United States sought a money judgment in the United States District Court for the Southern District of Florida, against the appellee, Robert E. Bowen. A judgment was entered dismissing the action for failure to state a claim upon which relief could be granted. This Court reversed. United States v. Bowen, 5th Cir.1961, 290 F.2d 40. A trial resulted in a judgment for Bowen. Notice of appeal was filed on May 25, 1962, by the United States. The last day for filing the record and docketing the appeal was July 5, 1962.¹ On July 3, 1962, at the telegraphed direction of the Chief of the Appellate Section of the Department of Justice, a motion for a fifty-day extension of the time for filing the record and docketing the appeal was prepared in the office of the United States Attorney in Miami, Florida, and on that day was delivered to the law clerk of the district judge who had presided at the trial. The law clerk was told that the order must be entered on or before July 5th and he assured the Assistant District Attorney that the matter would be brought to the judge's attention for timely consideration. July 5th came and went, and the Assistant District Attorney assumed that the order had been entered but made no inquiry. On July 6th the judge signed an order denying the extension of time.

On July 14th the United States filed with this Court its motion for a fifty-day extension from July 5th. The reason given for the requested extension was

"That the Solicitor General of the United States has not as yet determined whether or not an appeal in this cause should be prosecuted, among the reasons therefor being that it was necessary for the appellant to take some 34 oral depositions and 2 written interrogatories in this cause, many of which were taken in Europe; that the evidence obtained thereby could not be presented at the final hearing in this case on March 21, 1962; that all evidence is presently in the possession of the appellant and is being evaluated by the Solicitor General of the United States."

The motion was denied and the appeal was dismissed on August 3, 1962. United States v. Bowen, 5th Cir., 1962, 306 F.2d 620. The United States then filed its motion for rehearing and reconsideration of the August 3rd order, for reinstatement of the appeal and for leave to file the record out of time. The motion was referred to a panel of the Court which could hear oral argument, one judge being different from those comprising the Court which entered the order of August 3rd. In this motion of the United States it is recited that each decision in a civil case by a district court, adverse to the Government, is analyzed by an attorney in the Appellate Section of the Civil Division of the Department of Justice. This analysis forms the basis of a recommendation to the Solicitor General as to whether an appeal should be prosecuted. The attorney to whom the Bowen case was referred had other cases before him which were regarded by him or by his superiors as more important than the Bowen case and hence no determination was made as to whether or not to appeal until after the time for filing and docketing had expired. The motion was supplemented by an affidavit of the Appellate Section attorney to whom the case was referred for review, and by the affidavit of the Assistant District Attorney who had prepared the motion in the district court. In the latter affidavit it is recited that the "Affiant assumed that the order would be signed, filed with the Clerk of the Court, and that we would receive a copy in the mail in the usual manner." And again in the affidavit it is said that "Affiant is unable to recall any instances in which the Court has failed to grant the extension." The affidavit then repeated that "Affiant assumed that the extension would be granted in this case pro forma." It was not...