Hensley v. Chesapeake & O. Ry. Co.

• Decision Date: 08 June 1981
• Docket Number: 80-1458,Nos. 80-1457,s. 80-1457
• Citation: 651 F.2d 226
• Parties: Robert M. HENSLEY, Appellant, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, a Corporation, Appellee. Robert M. HENSLEY, Appellee, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, a Corporation, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 226

651 F.2d 226

Robert M. HENSLEY, Appellant, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, a Corporation, Appellee.

Robert M. HENSLEY, Appellee, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, a Corporation, Appellant.

Nos. 80-1457, 80-1458.

United States Court of Appeals Fourth Circuit.

Submitted Oct. 23, 1980.

Decided June 8, 1981.

Fred Adkins, Barbara Lee Ayres, Huntington, W. Va. (Huddleston, Bolen, Beatty, Porter & Copen, Huntington, W. Va., on brief), for appellant.

Raymond H. Strople, Willard J. Moody, Portsmouth, Va. (Moody, McMurran & Miller, Ltd., Portsmouth, Va., on brief), for appellee.

Before PHILLIPS, SPROUSE and ERVIN, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

In this case, 86 F.R.D. 555, the district court was confronted with the dilemma of a litigant who did not receive notice of the court's original order until well after the time for giving notice of appeal had expired. Sympathetic to the plight of the litigant, the district court granted plaintiff Hensley's motion under Fed.R.Civ.P. 60(b)(6) for relief from its original order and then reentered that order so that Hensley might take a timely appeal from that reentered order. We hold that, except upon a showing of exceptional or unique circumstances, Fed.R.Civ.P. 60(b) may not be used to avoid the mandate of Fed.R.Civ.P. 77(d) that lack of notice of entry of judgment does not affect the time to appeal prescribed in Fed.R.App.P. 4(a), reverse the district court's decision to set aside its original order under Fed.R.Civ.P. 60(b)(6); and accordingly dismiss Hensley's substantive appeal from the reentered order.

I

A brief description of the course of proceedings is essential to an understanding of our disposition of the appeals arising from it. A jury awarded Hensley $40,000 on his FELA claim against the Chesapeake & Ohio Railway (C&O). The district court entered judgment on the jury verdict, to which Hensley, apparently dissatisfied with the amount of the verdict, responded, on March 23, 1979, with a motion for new trial. By an order dated June 1, 1979, C&O was permitted to pay the amount of the jury verdict into the court to stop the running of interest. This order also reflected that were Hensley's motion for a new trial denied, he intended to appeal that denial.

On June 12, 1979, the district court denied Hensley's motion for a new trial and directed the clerk to mail certified copies of its order to all counsel. The docket sheet carries a notation that the clerk did comply with the directive and counsel for C&O received notice of the court's order on June 14. For some unexplained reason, however, counsel for Hensley never received notice of the court's order.

In a letter dated September 25, 1979, counsel for Hensley did request the benefit of the district court's decision on Hensley's motion for a new trial. In response to this letter, Hensley's counsel was informed by the clerk's office that an order had been entered on Hensley's motion on June 12, and a copy of this order was received by counsel for Hensley on October 1.

Hensley responded on October 18, 1979 with a "Motion to Reconsider the Court's Order of June 18, 1979 (sic), or in the Alternative to Vacate Said Order and Reenter it to Allow Plaintiff the Opportunity to Appeal." In support of this motion, affidavits were filed by several members of the office of Hensley's counsel affirming that that office had not received notice of the June 12 order at the time of its entry.

On June 5, 1980, the district court entered two orders in response to Hensley's motion. In the first, the court granted Hensley's Rule 60(b) motion to vacate the June 12, 1979 order denying a new trial. In the second, the court reentered the June 12, 1979 denial of a new trial as of June 5, 1980. In support of these orders, the district court also filed a memorandum opinion in which it based its disposition of Hensley's motion primarily on cases in which a similar procedure had been utilized upon a showing of "unique circumstances." Hensley v. Chesapeake & Ohio Railway, 86 F.R.D. 555 (S.D.W.Va.1980).

Hensley immediately filed an appeal No. 80-1457 substantively challenging the reentered order denying a new trial. The following day, C&O filed an appeal No. 80-1458 challenging the district court's order granting Hensley's Rule 60(b) motion.

II

The procedure used by the district court was clearly designed to avoid the time limits imposed on taking an appeal by Fed.R.App.P. 4(a). Under Rule 4(a) (1), an aggrieved litigant in a civil case not involving the United States must file notice of appeal with the clerk of the district court within 30 days from the date of entry of the judgment or order appealed from. Under Rule 4(a)(5), the district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon a motion filed not later than 30 days after the expiration of the 30-day period prescribed by Rule 4(a) (1). ¹ Moreover, the time limits imposed by Rule 4(a) are buttressed by Fed.R.App.P. 26(b), which bars even a court of appeals from enlarging the time for appeal.

The time requirements of Rule 4(a) are both mandatory and jurisdictional. Timely filing of a notice of appeal deprives a district court of jurisdiction over a case, and so does expiration of the time to file. See, e. g., Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir. 1974); Winchell v. Lortscher, 377 F.2d 247, 251 (8th Cir. 1967); Evans v. Jones, 366 F.2d 772, 773 (4th Cir. 1966). The policy behind this rigorous application of the rules concerning timeliness of appeals is the important one of defining some ascertainable end to litigation so that litigants may order their affairs accordingly. As the Third Circuit commented in passing on the application of Rule 4(a), "(a)ny requirement of compliance with barren technical formalities is to be avoided. But it cannot be denied that certain formalities are indispensable if litigation is to be just, speedy and inexpensive." Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275, 278 (3d Cir. 1962).

The 60 days following the entry of its June 12, 1979 order having elapsed with no notice of appeal forthcoming from Hensley, the district court recognized that it was "powerless to grant any relief under Rule 4." Hensley v. Chesapeake & Ohio Railway 86 F.R.D. at 558. The court sought to avoid this result by finding that the failure of Hensley's counsel to receive notice of the order denying a new trial in time to appeal that order was a "reason justifying relief from the operation of the (order)" under Fed.R.Civ.P. 60(b) (6). Id. at 561. Since a trial court's decision on a Rule 60(b) motion can only be reviewed for an abuse of discretion, Fackelman v. Bell, 564 F.2d 734 (5th Cir. 1977), the district court's decision would appear, at least at first blush, to be unassailable because Hensley's plight would certainly seem to be one meriting Rule 60(b) relief. Application of Fed.R.Civ.P. 77(d), however, mandates a different result.

Rule 77(d) originally established merely that the clerk had a duty to serve by mail a notice of the entry of judgment upon all parties appearing in the case. No statement was made about the effect of a failure by the clerk to perform this duty. In Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944), however, the Supreme Court was confronted with precisely this problem. Relying on the failure of the clerk to perform his duty, the Court held that it was permissible for the trial court to vacate its original order and reenter the same order to allow the taking of a timely appeal. Id. at 524, 64 S.Ct. at 336.

The Advisory Committee on Rules responded to Hill in 1946 by amending Rule 77(d) to add a final sentence 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) of the Federal Rules of Appellate Procedure." The Advisory Committee made it clear that the purpose of this amendment was, in effect, to overrule Hill v. Hawes :

Notification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal .... It would, therefore, be entirely unsafe for a party to rely on absence of notice from the clerk of the entry of a judgment, or to rely on the adverse party's failure to serve notice of the entry of judgment.

Fed.R.Civ.P. 77(d), Notes of Advisory Committee on Rules.

The courts have uniformly held that Rule 77(d) bars Rule 60(b) relief when the sole reason asserted for that relief is the failure of a litigant to receive notice of the entry of an order or judgment. See, e. g., Hodgson v. United Mine Workers, 473 F.2d 118 (D.C.Cir.1972); Weedon v. Gaden, 419 F.2d 303 (D.C.Cir.1969); Wagner v. United States, 316 F.2d 871 (2d Cir. 1963). Finding that that reasoning is faithful to the clearly expressed intent underlying Rule 77(d), we now adopt it as the rule of this circuit. ²

The district court, however, relied on a group of cases in which, upon a showing of "unique circumstances," Fed.R.App.P. 4(a) has been avoided and Fed.R.Civ.P. 60(b) has been used, in effect, to extend the time for taking an appeal. For example, in Klapport v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949), the Supreme Court considered a case involving the cancellation of naturalization certificates of a German-born, naturalized citizen during World War II. The petitioner's undenied allegation was that while he was held in federal prison on unsupported sedition charges, the Government caused a district court to revoke his citizenship on the ground that he failed to appear and defend, although he was without funds to hire an attorney and the F.B.I. had confiscated his letter seeking legal counsel from the Civil Liberties Union. The Supreme Court held that under these outrageous...