Rodgers v. Watt

• Decision Date: 16 December 1983
• Docket Number: No. 80-3482,80-3482
• Citation: 722 F.2d 456
• Parties: R.E. RODGERS and Barbara Rodgers, Plaintiffs-Appellants, v. James G. WATT, Secretary of the Interior of the United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 456

722 F.2d 456

R.E. RODGERS and Barbara Rodgers, Plaintiffs-Appellants, v. James G. WATT, Secretary of the Interior of the United States of America, Defendant-Appellee.

No. 80-3482.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1983.

Decided Dec. 16, 1983.

William B. Murray, Portland, Or., for plaintiffs-appellants.

Maria A. Iizuka, Dept. of Justice, Washington, D.C., Thomas C. Lee, Asst. U.S. Atty., Portland, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, Chief Judge, CHOY, SNEED, TANG, FLETCHER, POOLE, FERGUSON, CANBY, BOOCHEVER, NORRIS and REINHARDT.

BOOCHEVER, Circuit Judge.

This case has been referred to an en banc panel for the purpose of determining the requirements for relief from judgment, when the time for appeal has expired before the appellant has notice of the entry of judgment. We hold that the trial court did not abuse its discretion in granting relief under Fed.R.Civ.P. 60(b)(1) based on excusable neglect.

Facts

The facts have been well set forth in the panel's opinion and may be summarized as follows. Both sides filed motions for summary judgment in the district court where the plaintiffs sought review of an administrative decision holding certain unpatented mining claims void. The matter was taken under advisement. Two days later, on March 26, 1980, the district court filed an order granting defendant's motion for summary judgment and entered judgment dismissing the action.

The clerk of the district court failed to notify the parties of the entry of the judgment.

In April, May, and again in June, plaintiffs' counsel sent his secretary to check the docket sheet. She reported that the last entry read: "March 24, Record of hearing on Pltf's Obj to Magistrate's F/R(30) Ord taking under advise." Plaintiffs' counsel concluded the matter was still under advisement and took no further action.

Unfortunately, the entries on the docket sheet were out of sequence. Although the last entry recorded the March 24 hearing on objections to the magistrate's report, the preceding entry was dated March 26 and recited the granting of the motion for summary judgment and the entry of judgment dismissing the action. The March 24 date of the last entry was bracketed and the entry had a lower number than the preceding entry.

On July 21, 1980, the clerk's office advised counsel for the parties that judgment had been entered on March 26. Plaintiffs immediately filed a motion for relief under Rule 60(b)(1) of the Federal Rules of Civil Procedure. Defendants did not oppose the motion. On October 2, 1980, the district court vacated the judgment of March 26 and ordered judgment reentered as of October 2, 1980. Plaintiffs filed a notice of appeal from the new judgment on November 12, 1980. Because the United States is a party, the appeal is timely if the district court's order of October 2, 1980 is valid, but not otherwise. Fed.R.App.P. 4(a).

I Sua Sponte Consideration of Timeliness of Appeal

This panel ordered the parties to address the question of timeliness of the appeal. In its response to the order, the Government argued for the first time that the appeal was untimely.

We are required to consider the timeliness of the appeal even though it was not raised by the parties. The limitations on the time within which an appeal may be taken are mandatory and jurisdictional. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); Wallace v. Chappell, 637 F.2d 1345, 1346 (9th Cir.1981) (per curiam, en banc). If the district court abused its discretion in extending the appeal period by vacating and reentering judgment, we are without jurisdiction. Kramer v. American Postal Workers Union, AFL-CIO, 556 F.2d 929, 931 (9th Cir.1977) (per curiam); In re Morrow, 502 F.2d 520, 523 (5th Cir.1974). Error in extending the time for appeal under Rule 4(a)(5) is reviewable sua sponte, Selph v. Council of the City of Los Angeles, 593 F.2d 881, 882 (9th Cir.1979), and we see no escape from that conclusion when the extension is granted under Fed.R.Civ.P. 60(b). But see Mizell v. Attorney General of State of N.Y., 586 F.2d 942, 944-45 n. 2 (2d Cir.1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979).

We, therefore, proceed to determine whether we have jurisdiction in this case.

II

Relationship of Federal Rule of Appellate Procedure 4 and

Federal Rule of Civil Procedure 60

Our jurisdiction is dependent on the interworking and construction of various rules of civil and appellate procedure.

Subsection 1 of Rule 4(a), Fed.R.App.P., fixes a period of thirty days after entry of judgment for filing a notice of appeal in a civil case and sixty days if the United States or its agent or officer is a party. Subsection 5 of the rule allows the district court to extend the time for filing the notice of appeal "upon a showing of excusable neglect or good cause." A motion seeking an extension must be filed "not later than 30 days" after the expiration of the appeal period prescribed by the rule. No extension shall exceed thirty days past the prescribed time or ten days from the entry of the order.

Plaintiffs could obtain no relief under Rule 4 because they did not discover that the judgment had been entered until the maximum time for an extension under the rule had expired. Plaintiffs, therefore, sought relief under Fed.R.Civ.P. 60(b)(1). Rule 60(b) provides for relief from a final judgment in a number of circumstances, and subsection (1) is for "mistake, inadvertence, surprise or excusable neglect."

In this case the clerk failed to comply with Fed.R.Civ.P. 77(d) requiring that immediate notice of entry of judgment be mailed to the parties. Construing an earlier version of the rule under similar circumstances, the United States Supreme Court held that a party failing to receive notice of the entry of judgment was entitled to a late appeal. Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944). The Court countenanced vacation of the original judgment and reinstatement. Because of Hill's adverse impact on the finality of judgments, Rule 77(d) was amended to provide that "[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) ...."

At the same time, Fed.R.Civ.P. 73(a), later incorporated into Fed.R.App.P. 4(a)(5), was amended to furnish an escape hatch from the rigidity of amended rule 77(d). As we have previously indicated, Rule 4(a)(5) now permits the district court, upon a showing of excusable neglect, to extend the time for filing a notice of appeal upon a motion filed not later than thirty days after the expiration of the time otherwise provided. Thus, upon a showing of excusable neglect, the relief provided by Hill was allowed if a motion was filed within thirty days. See 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 203.25 (2d ed. 1983). Generally a finding of excusable neglect requires lack of notice plus additional equitable factors such as attempts to learn the anticipated date of the decision. See Calkins, The Emerging Due Diligence Standard for Filing Delayed Notice of Appeal in Federal Courts, 19 Willamette L.Rev. 609, 614 (1983).

Rule 4(a)(5) by its terms is inapplicable to situations when notice of the entry of judgment is not received until after the thirty day period authorized for the motion. Fed.R.Civ.P. 60(b), however, does provide for relief from a final judgment for a variety of reasons. The motion must be made within a reasonable time not to exceed one year in certain categories, including that of 60(b)(1), "excusable neglect."

When relief from judgment is sought after the thirty day period allowed by Rule 4(a)(5), the applicability of the Rule 60(b)(1) excusable neglect standard may be questioned as being counter to the policy indicated by Rule 4(a)(5)'s time limitation. A motion for relief, however, cannot be filed within sixty days if a party has no knowledge of entry of judgment. Rule 4(a) is applicable in many situations where a party has timely notice of the judgment, ¹ as well as in cases where notice is received within the next thirty days. In such cases it is possible to file a motion within the period provided by Rule 4(a). We hold that Rule 60(b) is available in situations where the excusable neglect does not arise until after the sixty day period.

III The Standard for Rule 60(b)(1) Relief

In determining whether Rule 60(b) applies, courts should be mindful that the rules are to be construed to achieve the just determination of every action. Fed.R.Civ.P. 1. "It is well settled that the Federal Rules of Civil Procedure are to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits and to dispense with technical procedural problems." Staren v. American Nat'l Bank & Trust Co. of Chicago, 529 F.2d 1257, 1263 (7th Cir.1976). "[S]peaking generally, [the considerable body of federal decisions has] been in marked harmony with the proposition that 60(b) is a remedial rule to be liberally construed." 7 J. Moore & J. Lucas, Moore's Federal Practice p 60.22 at 247 (2d ed. 1982) (footnote omitted). See also id. p 60.18 at 216.1; p 60.19 at 237.

Recently, in In re Magouirk, 693 F.2d 948, 951 (9th Cir.1982) we stated:

Under Rule 60(b), "excusable neglect" is liberally construed, especially in those instances where the order or judgment forecloses trial on the merits of a claim. Schwab v. Bullock's, Inc., 508 F.2d 353, 355 (9th Cir.1974); Patapoff v. Vollstedt's, Inc., 267 F.2d 863, 865 (9th Cir.1959).

On the other hand there is a compelling interest in the finality of judgments which should not lightly be disregarded. See Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483...