Selph v. Council of City of Los Angeles

• Citation: 593 F.2d 881
• Decision Date: 22 March 1979
• Docket Number: No. 75-2757,75-2757
• Parties: Jacqueline SELPH, Plaintiff-Appellant, v. COUNCIL OF the CITY OF LOS ANGELES et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 881

593 F.2d 881

Jacqueline SELPH, Plaintiff-Appellant, v. COUNCIL OF the CITY OF LOS ANGELES et al., Defendants-Appellees.

No. 75-2757.

United States Court of Appeals Ninth Circuit.

March 22, 1979.

Mason H. Rose (argued), of Nichols & Rose, Beverly Hills, Cal., for plaintiff-appellant.

Daniel U. Smith (argued), Asst. City Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, ELY and WALLACE, Circuit Judges.

CHAMBERS, Circuit Judge:

The issue before us, and we raise it sua sponte, is whether we have jurisdiction. More specifically, was the district court's order permitting the filing of an untimely notice of appeal valid?

Under Rule 4(a), F.R.A.P., the notice of appeal in this civil case (not involving the United States or its officers or agencies) was required to be filed within 30 days of the entry of judgment. Judgment was entered on April 30, 1975; the notice of appeal was due on or before May 30, 1975. Appellants filed a motion for an extension of time on June 10, 1975, seeking relief under the portion of Rule 4(a) that states:

"Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate."

The motion was filed within the 30-day extension period and was timely. However, the hearing was noticed for July 7, several days after the expiration of the 30-day extension period. The motion was heard on July 7 and the relief granted. The notice of appeal was filed on July 10, 1975, or 71 days after entry of judgment and 11 days after the expiration of the extension period.

The language of the rule is not ambiguous. The notice of appeal should have been filed within 30 days of the entry of judgment or within 60 days of entry of judgment if the court granted an extension of time within the terms of Rule 4(a).

The provisions of Rule 4(a) are mandatory and jurisdictional, Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Saunders v. Cabinet Makers and Millmen, 549 F.2d 1216 (9th Cir. 1977).

The district court had no authority to grant an extension of time beyond the provisions of that rule. Smith v. United States, 425 F.2d 173 (9th Cir. 1970). Specific rules for the finality of judgments are essential to maintain order in the judicial process. Rule 4(a) is construed to protect this value; any other construction would defeat its purpose. Browder v. Director, Illinois Department of Corrections, supra.

We must distinguish this case from those in which a notice of appeal is submitted within the extension period of Rule 4(a) and later rendered timely by an order of the district court (made after the extension period had expired) to file it nunc pro tunc. Stirling v. Chemical Bank, 511 F.2d 1030 (2nd Cir. 1975); Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084 (3rd Cir. 1972); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2nd Cir. 1968); Karstetter v. Cardwell, 399 F.Supp. 1298 (D.Ariz.), aff'd. 526 F.2d 1144 (9th Cir. 1975). In this case appellants did not file the notice of appeal until after the expiration of the extension. There was, as a result, no notice of appeal before the district court that could be rendered timely by the order granting the extension of time. United States v. Stolarz, 547 F.2d 108, 112 (9th Cir. 1976). Smith v. United States, supra; Dyotherm Corp. v. Turbo Machine Co., 434 F.2d 65 (3rd Cir. 1970).

Appellants argue that even though no notice of appeal was filed until after the expiration of the extension period provided by Rule 4(a), their notice of motion for relief from untimely filing (filed within the extension period) should be deemed by us to be a notice of appeal. But this Court has no authority under Rule 4(a) to extend the time for filing a notice of appeal. Moreover, this case simply cannot be equated with those few criminal appeals or collateral attacks on criminal convictions, presenting different factual situations, in which extraordinary relief has been granted. See e. g. United States v. Stolarz, supra, at 111-112; United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977). We therefore reject appellants' suggestion that their motion for extension of time should be construed as a notice of appeal.

Our difficulties with the district court's order granting relief and permitting the filing of a notice of appeal do not end here. Under Rule 4(a), an extension of time is permissible only on a showing of "excusable neglect." The standard for determining what is excusable, and what is not, is a "strict" one, according to the Advisory Committee on Appellate Rules of the Judicial Conference of the United States. ¹

The order of the district court in this case makes no finding of excusable neglect. It recites only that the motion has been heard and is granted, "provided the notice of appeal is filed prior to 4 p. m. on July 11, 1975." Had the district court order found that excusable neglect existed, we might have afforded that finding "great deference". Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). But even granting it such deference, we would have had to conclude that the neglect in this case was Not excusable.

Counsel's affidavit, offered in support of the motion for relief, admits that notice of entry of judgment was received immediately. A month later, having discovered that the 30-day period for appeal had already expired, he asked his law clerk to investigate obtaining relief from the default. The law clerk called the office of the clerk of the district court and was told that the trial judge was out of town. ² Ten days later on June 10, 1975, the attorney submitted his motion, noticing it for hearing on July 7, 1975. Even at this late date in June, the motion could have been noticed for the minimum time specified by Rules of the Central District of California and it could have been heard and determined before the 30-day extension of time permitted by Rule 4...