In Re Sealed Case .

• Decision Date: 23 October 2009
• Docket Number: No. 07-5411.,07-5411.
• Citation: 624 F.3d 482
• Parties: In re SEALED CASE (BOWLES).
• Court: U.S. Court of Appeals — District of Columbia Circuit

624 F.3d 482

In re SEALED CASE (BOWLES).

No. 07-5411.

United States Court of Appeals,District of Columbia Circuit.

Argued Sept. 16, 2009.

Decided Oct. 23, 2009.

Reissued Oct. 22, 2010.

Stephen L. Snyder argued the cause for appellant. On the briefs was Frederick D. Cooke, Jr.

Kathleen V. Gunning argued the cause for appellee. With her on the brief were Colleen J. Boles and Lawrence H. Richmond.

Before: ROGERS and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), the Supreme Court held that 28 U.S.C. § 2107, ¹ as carried into practice by Appellate Rule 4(a)(6), ² is jurisdictional and that courts lack power to create equitable exceptions. The question presented in this appeal is whether Federal Rule of Civil Procedure 60(b) remains available to circumvent the 180-day deadline in the appellate rule for reopening the time to file an appeal. Appellant maintains there are unique circumstances explaining its failure to note a timely appeal: (1) the usual means of obtaining notice about the status of its case were unavailable because the case was sealed; (2) appellant's counsel was diligent in attempting to discover the status of the case, by filing a written inquiry about pending motions and making oral inquiries of the Clerk of the Court; and (3) neither party obtained notice of the dismissal of the case until after the 180-day deadline in Appellate Rule 4(a)(6) had passed. Reading Bowles narrowly, appellant contends that because the time limits in Rule 60(b) are not jurisdictional, the unique circumstances exception applies and the district court therefore abused its discretion in denying relief pursuant to Rule 60(b). The holding in Bowles, however, is broadly stated and appellant's view that the district court retained power to recognize an equitable exception to the 180-day deadline rests on precedent expressly overturned by Bowles. Moreover, concluding that Rule 60(b) is unavailable to allow appellant to file a timely appeal is in accord with the majority of circuits holding that with the 1991 amendment adding subsection (6), Appellate 4(a)(6) became the exclusive means of reopening the time to appeal. Accordingly, we affirm.

In affirming we are cognizant of the unfairness of denying relief to appellant in this sealed case where none of the usual means of learning the status of its case were available and, as the parties agree and we will assume, appellant made diligent efforts through counsel to discover the status of its case. A sealed case generally presents special circumstances. Neither the federal rules of civil procedure nor the district court's local rules specifically address how parties shall be notified in sealed cases. Not only is there no public docket in a sealed case, but the parties and their counsel also may not be able to access the sealed docket or receive electronic notification. The ad hoc procedures in appellant's case were inadequate to ensure notice. The sealed docket stated electronic notice would not be given and listed participants to be notified by other means. No other means were employed. Although counsel for the parties were also listed on page 1 of the sealed docket as “ATTORNEY[S] TO BE NOTICED,” neither parties' counsel received notice of the October 26, 2006 dismissal of the case. These circumstances explaining the parties' failure to receive timely notice of the dismissal of the case are unique, not to be found in precedent addressing reopening of the time to appeal. This may be because the district court and the parties have made special arrangements for receiving notice in other sealed cases and those arrangements have worked. When they do not, through no fault of the parties and despite the best efforts of the parties to obtain information about the status of the proceedings, the civil justice system has failed in light of the implicit assumption underlying the federal rule on notice, Fed.R.Civ.P. 77(d), that parties will have an easy way to determine the status of their case. The purpose of the civil rules set forth in Rule 1 contemplates a just as well as speedy resolution of disputes. Fed.R.Civ.P. 1. Given the mandatory 180-day deadline for reopening the time to file appeals in civil cases, it would be appropriate in light of Bowles for the district court to adopt procedures to ensure that parties and their counsel, if any, in sealed cases receive prompt notice of final orders and judgments.

I.

On May 11, 2005 appellant filed an application under the Federal Arbitration Act, 9 U.S.C. § 10, to vacate an arbitration award rejecting its claim to additional attorneys fees under a written contingency fee agreement with the Federal Deposit Insurance Corporation (“FDIC”) in connection with recovering the subrogated claims of a failed bank against an accounting firm. The FDIC moved on June 14, 2005 to seal its pleadings because matters in the arbitration were confidential, and also moved on June 21, 2005 to dismiss the application to vacate. Appellant filed an opposition on July 7, 2005, and the FDIC filed a reply on July 25, 2005. On August 22, 2005 appellant filed a motion for a hearing on its application to vacate the arbitration award and a supplemental memorandum on its application. Appellant also filed on August 29, 2005 a request for the district court to take judicial notice of a district court opinion decided August 23, 2005 in a different case involving the FDIC. The FDIC filed an opposition to that request on September 9, 2005, and appellant filed a reply on September 19, 2005.

Meanwhile, on June 21, 2005, the district court sealed the case upon joint consent motion of the parties. Thereafter neither the district court's sealed docket nor electronic notification were available to inform the parties of the status of pending and later filed motions. As it turns out, despite the filing by appellant's counsel of a Notice of Inquiry on February 28, 2007, shortly after new counsel entered his appearance, inquiring about the pending motions, the parties represent that neither party or their counsel received notice of the district court's October 26, 2006 dismissal of the case until May 30, 2007. See Appellant's Br. 7-9, 15-16; Appellee's Br. 5 n. 5, 13. On May 30, upon a call to the district court judge's chambers, a law clerk advised appellant's counsel of the dismissal on the merits.

Appellant moved on June 8, 2007, within 7 days of receiving notice of the dismissal, to reopen the time to appeal pursuant to Appellate Rule 4(a)(6). The district court denied the motion as untimely on July 26, 2007. Appellant also moved on August 31, 2007 for relief from the judgment or order of dismissal pursuant to Rule 60(b). The motion recounted, among other things, the events leading to appellant's late notice of the dismissal of its case and its late motion to reopen pursuant to Appellate Rule 4(a)(6), and requested either a status conference or the grant of its pending motion to reopen the time to appeal. The FDIC filed an opposition on September 12, 2007, citing Bowles. The district court summarily denied the Rule 60(b) motion on November 26, 2007. Appellant filed a notice of appeal on December 18, 2007.

II.

Pursuant to Rule 60(b)(6), a party may seek relief from a judgment or order for “any other reason that justifies relief,” Fed.R.Civ.P. 60, upon a showing of “extraordinary circumstances,” Kramer v. Gates, 481 F.3d 788, 791 (D.C.Cir.2007) (quoting Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950)). The unique circumstances doctrine recognized in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), and Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), arose in view of the inequity of foreclosing appeals by parties whose failure to file timely notices of appeal results from reliance on the court. ³ As later clarified in Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989), the doctrine applied only where a party performed an act, which if properly done, would postpone the filing deadline and had received specific assurance by a judicial officer that the act has properly been done. When the doctrine originated, the Federal Rules of Civil and Appellate Procedure did not contain a more specific avenue of relief. It was not until 1991 that the Rules were amended to add subsection (6) to Appellate Rule 4(a), setting forth a 180-day extension of the time to reopen the time to file an appeal when “the moving party did not receive notice under Federal Rule of Civil Procedure 77(d).” See 16A Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Catherine T. Struve, Federal Practice And Procedure §§ 3950.3, 3950.6 (4th ed. 2008) (“16A Wright & Miller”).

In Bowles, a prisoner filed a motion pursuant to Appellate Rule 4(a)(6) to reopen the time to appeal the denial of his petition for a writ of habeas corpus. 551 U.S. at 207, 127 S.Ct. 2360. The district court judge granted the motion and extended the deadline by 17 days rather than the 14 days allowed by the rule and the statute that tracks the rule, 28 U.S.C. § 2107(c). Id. Bowles relied on the judge's ruling and filed his motion 16 days after the order. Id. The Supreme Court held that § 2107, as carried into practice by Appellate Rule 4(a)(6), was a jurisdictional grant and limitation, and the court of appeals could not hear Bowles' appeal regardless of the circumstances. Id. at 213, 127 S.Ct. 2360. Of significance here, the Supreme Court also stated:

Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the “unique circumstances” doctrine is illegitimate.

Id. at 214...