Coleman v. Block
| Decision Date | 17 September 1984 |
| Docket Number | Civ. No. A1-83-47. |
| Parties | Dwight COLEMAN, Lester Crowsheart, Sharon Crowsheart, Russel Folmer, Anna Mae Folmer, George Hatfield, June Hatfield, Donald McCabe, Diane McCabe, Gary Barrett, Rosemary K. Barrett, Richard L. Harmon, Betty J. Harmon, Larry L. Robertson, Nancy K. Robertson, Ross Wade and Maureen Wade, on behalf of themselves and others similarly situated, Plaintiffs, v. John R. BLOCK, Secretary of Agriculture; Charles W. Shuman, Administrator of the Farmers Home Administration; Ralph W. Leet, State Director of the Farmers Home Administration; Harold T. Aasmundstad, Glen W. Binegar, Allen G. Drege, Dennis W. Larson, Odell O. Ottmar, and Joseph J. Schneider, as District Directors of the Farmers Home Administration for North Dakota; and Samuel Delvo, Lorace Hakanson, Larry Leier, Charles Schaefer and James Well, as County Supervisors of the Farmers Home Administration in North Dakota, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Sarah M. Vogel, Grand Forks, N.D., William R. King, Atlanta, Ga., Burt Neuborne, American Civil Liberties Union, New York City, Allan Kanner, Philadelphia, Pa., Williams, Reesman & Tate, Booneville, Mo., for plaintiffs.
Gary Annear, Asst. U.S. Atty., Fargo, N.D., Arthur R. Goldberg, Atty., Dept. of Justice, Civil Division, Washington, D.C., for defendants.
On June 15, 1984, this Court issued an order granting attorneys' fees in the above-entitled action. 589 F.Supp. 1411. Doc. No. 165. According to Rule 4(a)(1), Fed.R.App.P., the United States has sixty days after the entry of an order to file a notice of appeal. This time-period is jurisdictional, Browder v. Director of Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521, 531 (1978), and can be extended only "upon a showing of excusable neglect or good cause" by a motion filed not later than 30 days after the expiration of the time proscribed by the Rule. Fed.R.App.P. 4(a)(5). Defendants failed to file their notice of appeal within the sixty-day deadline, but have filed a motion for extension within the thirty-day limit delineated in Rule 4(a)(5).1 Thus, the only issue remaining is whether defendants can demonstrate sufficient "excusable neglect" to justify their failure to file a timely notice of appeal.
Defendants' reply brief (Doc. No. 174)2 describes the circumstances which resulted in the late filing:
The reasons why the Notice of Appeal was not filed until August 15, 1984 are quite straight-forward.... Defendants sic counsel were aware of the entry of the June 15 Order within a few days of its entry. On June 29, 1984, Mr. Goldberg told Mr. Annear that any appeal of this Order would be handled by Department of Justice attorneys in Washington, D.C. Mr. Goldberg was on leave between July 28 and August 20 and expected that the Notice of Appeal would be filed in his absence. When it was discovered that no Notice had been filed by the sixtieth day, a Motion for Extension of Time and a Notice were filed immediately. Defendants' Reply Brief (Doc. No. 174 at 2 (footnotes omitted)).
Initially the Rules of Appellate Procedure allowed for an extra thirty days for taking an appeal in the case of "excusable neglect based on the failure of a party to learn of the entry of judgment." Fed.R. Civ.P. 73(a) (1965). In 1966, the reference to a failure to learn of the judgment was omitted, thus empowering the district court "to extend the time for taking an appeal upon a showing of excusable neglect of any kind." 1966 Advisory Committee's Notes to Rule 73(a), reprinted in 39 F.R.D. 69, 130 (1966). Although the committee intended for the excusable neglect standard to remain a strict one (see Stern, Changes in the Federal Appellate Rules, 41 F.R.D. 297, 299 (1967)), it also opened the door for the application of a results oriented approach by its reference to the prevention of injustice:
In view of the ease with which an appeal may be perfected, no reason other than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result.
1966 Advisory Committee's Notes to Rule 73(a), supra, at 130. Based on this reference in the committee's notes to the effect of the denial of an extension, several courts, including the Eighth Circuit, have construed the excusable neglect standard as allowing an extension either upon a showing of excusable neglect or "in extraordinary cases where injustice would otherwise result." See, e.g., Benoist v. Brotherhood of Locomotive Engineers, 555 F.2d 671, 672 (8th Cir.1977), citing, Dugan v. Missouri Neon & Plastic Advertising Co., 472 F.2d 944 (8th Cir.1973) and Winchell v. Lortscher, 377 F.2d 247 (8th Cir.1967). If the government is able to demonstrate that it falls under either of these categories, its motion to extend the time-period for filing its notice of appeal must be granted.3
The government's legal arguments for the granting of the extension are exclusively directed to the "prevention of injustice" standard. This is understandable since the traditional excusable neglect standard clearly does not apply to the facts in this case.4 There is no excuse for the government's failure to make a timely appeal. As Chief Justice Burger stated in Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971), "the staff lawyers in a prosecutor's office have the burden of `letting the left hand know what the right hand is doing' or has done." The same is true for the Department of Justice.
There is even less excuse for an attorney in charge of a case to leave on vacation without making unmistakable arrangements for someone to perform this basic function in his absence. See Meza v. Washington State Department of Social & Health Services, 683 F.2d 314, 315-16 (9th Cir.1982); United States v. Virginia, 508 F.Supp. 187, 188, 190-92 (E.D.Va. 1981).5
Defendants claim in their reply brief (at 3-4) that "this is clearly an extraordinary situation in which substantial injustice may result" if their appeal is not allowed:
This Court has conducted substantial research in an attempt to find instances where a court allowed an appeal due to "an extraordinary situation in which substantial injustice would otherwise result." Generally speaking, such situations have been found when an appellant relies, to his or her disadvantage, on a district court's improper order extending time for appeal,6 or where notice of judgment was not received due to an error in the clerk's office.7 In most of these instances, the courts have merely applied the excusable neglect standard and do not refer to the avoidance of substantial injustice language.
Aside from these two categories, which do not apply to the case at hand, this Court has found only three decisions in which a prevention of injustice standard was employed. In United States v. Ming Sen Shiue, 508 F.Supp. 460 (D.Minn.1981), Judge Devitt allowed the motion to extend the time to appeal nunc pro tunc for a criminal action because the transcript had already been prepared and filed, counsel who tried the case and knew the issues well were preparing their briefs, and, significantly, the defendant "could probably at some time obtain review of the alleged errors in his trial by writ of coram nobis ... or under 28 U.S.C. § 2255." Id. at 462. Given these facts, Judge Devitt ruled that "it would better serve the efficient administration of justice to afford the review now, on direct appeal, when the issues are fresh and knowledgeable counsel are prepared to present them."8 Id.
The second case that applies the prevention of injustice standard is Islamic Republic of Iran v. Boeing Co., 739 F.2d 464 (9th Cir.1984), which involves an appeal from a default judgment of nearly $100 million. The attorney in this case, who had become physically and mentally incapacitated, failed to file the notice of appeal. Instead of applying the traditional excusable neglect standard,9 the Ninth Circuit applied a prevention of injustice rationale and concluded that an appeal should be allowed, stating that "it would be unjust" to do otherwise. Id. at 466. Although this case would be more properly analyzed as an excusable neglect case, it is clear that the Ninth Circuit considered both the reason for the failure to file as well as the potential injustice that would be caused as a result of a denial of the request for an extension.
The third decision applying the prevention of injustice standard is discussed in Doctor v. Seaboard Coast Line R.R., 540 F.2d 699 (4th Cir.1976). The lower court in this case had granted the ...
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