Islamic Republic of Iran v. Boeing Co.

• Decision Date: 02 August 1984
• Docket Number: 84-3558,Nos. 84-3542,s. 84-3542
• Citation: 739 F.2d 464
• Parties: ISLAMIC REPUBLIC OF IRAN, Air Force of the Islamic Republic of Iran, Plaintiffs-Appellants Cross-Appellees, v. The BOEING COMPANY and Logistics Support Corporation, Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 464

739 F.2d 464

39 Fed.R.Serv.2d 912

ISLAMIC REPUBLIC OF IRAN, Air Force of the Islamic Republic of Iran, Plaintiffs-Appellants Cross-Appellees, v. The BOEING COMPANY and Logistics Support Corporation Defendants-Appellees Cross-Appellants.

Nos. 84-3542, 84-3558.

United States Court of Appeals Ninth Circuit.

Submitted May 1, 1984.

Decided Aug. 2, 1984.

John Dillow, Seattle, Wash., for defendants-appellees cross-appellants.

John R. Reese, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for plaintiffs-appellants cross-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before KENNEDY, PREGERSON, and NELSON, Circuit Judges.

PER CURIAM:

We grant the petition for rehearing, withdraw our prior order, and affirm the district court's order granting an extension of time in which to file an appeal.

Rule 4(a)(5) of the Federal Rules of Appellate Procedure permits the district court to extend the time for filing an appeal on a showing by the moving party that the failure to file a timely appeal was the result of "excusable neglect." Since the appellant here received notice of entry of judgment, the district court's finding of excusable neglect is sustainable only if there were extraordinary circumstances that prevented a timely filing and denying the appeal would result in injustice. See, e.g., Meza v. Washington State Department of Social and Health Services, 683 F.2d 314, 315 (9th Cir.1982); Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (9th Cir.1982) (per curiam); National Industries, Inc. v. Republic National Life Insurance Co., 677 F.2d 1258, 1264 (9th Cir.1982). We will reverse the district court's order only for an abuse of discretion. Meza, 683 F.2d at 315.

We have not previously addressed the question whether illness of counsel can amount to an extraordinary circumstance under Rule 4(a)(5). Cf. Meza, 683 F.2d at 316 n. 3 (reserving the question). We conclude that illness of counsel entrusted with the filing responsibility may amount to extraordinary circumstances when the illness is so physically and mentally disabling that counsel is unable to file the appeal and is not reasonably capable of communicating to co-counsel his inability to file.

Appellees do not dispute the factual accuracy of the district court's findings that the appeal would have been timely filed but for counsel's illness or that counsel's illness was of such a character and magnitude that counsel was both physically and mentally incapacitated during the crucial period of time. These conclusions are amply supported by counsel's sworn affidavit that his illness involved diarrhea, vomiting, and a five pound weight loss over 36 hours. During the same period of time, moreover, counsel's secretary was taken ill.

Further, we note that counsel was not simply one of many attorneys responsible for the administration of this case. Cf. Meza, 683 F.2d 315 (other attorneys in the Assistant Attorney General's office could have filed the appeal); Gooch v. Skelly Oil Co., 493 F.2d 366, 370 (10th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 270 (1974) (receipt of notice of entry of judgment by one of two counsel of record precludes finding of...