Panhorst v. USA.

• Decision Date: 02 November 2000
• Docket Number: No. 99-2300,99-2300
• Citation: 241 F.3d 367
• Parties: (4th Cir. 2001) LISA PANHORST; JOANNE JONES; JOHN M. JONES, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 367

241 F.3d 367 (4th Cir. 2001)

LISA PANHORST; JOANNE JONES; JOHN M. JONES, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee.

No. 99-2300.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: November 2, 2000.

Decided: February 20, 2001.

Appeal from the United States District Court for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge. (CA-96-1730-JFM) COUNSEL: ARGUED: Marc Simon Moller, KREINDLER & KREINDLER, New York, New York, for Appellants. Mary McElroy Leach, Senior Trial Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Henry Gluckstern, Special Counsel, KREINDLER & KREINDLER, New York, New York; Stanley P. Kops, Philadelphia, Pennsylvania, for Appellants. David W. Ogden, Acting Assistant Attorney General, Lynne A. Battaglia, United States Attorney, Jeffrey Axelrad, Director, Torts Branch, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.

Dismissed by published opinion. Judge Luttig wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.

OPINION

LUTTIG, Circuit Judge:

The appellants, Lisa Jones Panhorst and her parents, appeal the district court's grant of summary judgment to the United States in an action brought under the Federal Tort Claims Act. We hold that appellants' notice of appeal was untimely and that the limited "unique circumstances" exception to the jurisdictional requirement of a timely notice of appeal does not apply. Accordingly, we dismiss this appeal for lack of jurisdiction.

I.

Lisa Jones Panhorst is paralyzed in both legs. Panhorst and her parents sued American Cyanamid Company ("Cyanamid") in the District of South Carolina, claiming that Panhorst contracted polio through contact with an unknown child who had recently been administered a defective dose of Orimune, a polio vaccine manufactured by American Cyanamid. While that action was pending, appellants filed the present action against the United States under the Federal Tort Claims Act in the District of Maryland. Appellants claim that the United States negligently licensed and released a defective vaccine that was thereafter administered to a child from whom Panhorst contracted polio.

In Cyanamid, the district court granted summary judgment to the defendant on the issue of causation, holding that Panhorst failed to present sufficient evidence that she contracted Type III polio from American Cyanamid's vaccine.¹ App. 259. Subsequently, the district court in the present lawsuit granted summary judgment to the United States based on the collateral estoppel effect of Cyanamid. App. 17279.

The district court entered the order granting summary judgment to the United States on March 3, 1998. On March 20, 1998, appellants filed a motion for rehearing and reconsideration under Fed. R. Civ. P. 59, citing newly discovered evidence of alleged improprieties in the licensing of Orimune.² Because appellants knew that the period permitted by the Federal Rules of Civil Procedure for filing a Rule 59 motion had elapsed, they also filed a motion to consider the Rule 59 motion out of time, along with an order for the court's signature that granted appellants permission to file an untimely Rule 59 motion.

The district court signed the order submitted by appellants and held a hearing on the Rule 59 motion, which it subsequently denied on July 30, 1999. On September 21, 1999 -within sixty days of the denial of the untimely Rule 59 motion, but more than sixty days after entry of the original summary judgment order -appellants noted this appeal.

II.

The United States argues that we have no jurisdiction over this appeal because the notice of appeal was filed out of time. We agree. Because appellants' Rule 59 motion was untimely, it did not defer the sixty-day period for filing a notice of appeal, which continued to run from the entry of the summary judgment order. Accordingly, appellants' notice of appeal -filed more than sixty days after the summary judgment order -was untimely as well. We would thus have jurisdiction over this appeal only if the "unique circumstances" doctrine cured the jurisdictional defect caused by appellants' tardy notice of appeal. We conclude that the unique circumstances doctrine does not apply to the facts of this case, and we therefore dismiss for lack of jurisdiction.

A.

The Supreme Court has repeatedly emphasized that the requirement of a timely notice of appeal is "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). See also Alston v. MCI Communications Corp. , 84 F.3d 705, 706 (4th Cir. 1996). Under the Federal Rules of Appellate Procedure, a party to a lawsuit involving the United States must file a notice of appeal within sixty days after entry of the judgment or order appealed from. Fed. R. App. P. 4(a)(1)(B). However, if a party files a timely motion in the district court to alter or amend the judgment under Rule 59(e), the time to file a notice of appeal runs from the entry of the order disposing of the Rule 59(e) motion. Fed. R. App. P. 4(a)(4). An untimely Rule 59(e) motion does not defer the time for filing an appeal, which continues to run from the entry of the initial judgment or order. Browder, 434 U.S. at 264.

The timeliness of appellants' notice of appeal thus depends entirely upon whether their Rule 59 motion was timely. A motion to alter or amend the judgment under Rule 59(e) is timely only if filed within ten days after entry of the judgment, not including Saturdays, Sundays, or legal holidays. Fed. R. Civ. P. 59(e) (A motion under Rule 59(e) "shall be filed no later than 10 days after entry of the judgment.") (emphasis added); Fed. R. Civ. P. 6(a) (computation of time where a prescribed period is less than eleven days). The district court "may not extend the time for taking any action under Rules . . . 59(b), (d) and (e), except to the extent and under the conditions stated in them." Fed. R. Civ. P. 6(b). Rule 59(e), in turn, simply does not provide any mechanism for extending the prescribed ten-day filing deadline. Thus, the Federal Rules clearly prescribe that a motion under Rule 59(e) must be filed within ten days after entry of the judgment, and the Rules just as clearly provide the district court with no authority to extend the filing period.

Here, the district court entered the summary judgment order in favor of the United States on March 3, 1998. Appellants had until March 17, 1998 -ten days after the entry of the summary judgment order, excluding Saturdays, Sundays, and legal holidays -to file their Rule 59 motion. Instead, they filed their Rule 59 motion on March 20, 1998. Because an untimely Rule 59 motion cannot defer the time for filing a notice of appeal, appellants were required to note their appeal by May 4, 1998, sixty days from the entry of summary judgment. The notice of appeal filed on September 21, 1999 -over 180 days from the entry of judgment -was therefore tardy. Unless there is an applicable exception to the rule that a timely notice of appeal is mandatory and jurisdictional, we lack jurisdiction over this appeal.

B.

Appellants seek refuge from the mandatory filing requirements of the Rules by invoking the limited "unique circumstances" doctrine recognized by the Supreme Court in a trio of cases in the early 1960s. See Wolfsohn v. Hankin, 376 U.S. 203 (1964); Thompson v. INS, 375 U.S. 384 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962). In Harris, the district court granted a motion to extend the time for filing a notice of appeal, as then provided by Rule 73(a), for "excusable neglect or good cause." The Seventh Circuit dismissed the appeal because, in its view, the circumstances on which the district court relied did not satisfy Rule 73(a), rendering the appeal untimely. The Supreme Court reversed, holding that:

In view of the obvious great hardship to a party who relies upon the trial judge's finding of "excusable neglect" prior to the expiration of the 30-day period and then suffers reversal of that finding, it should be given great deference by the reviewing court.

Harris, 371 U.S. at 217.

In Thompson, the Court again applied the Harris doctrine, over the vigorous dissent of four Justices. The petitioner in Thompson filed a motion for a new trial twelve days after final judgment. The district court assured him that the motion was actually filed"`in ample time'" and went on to decide it on its merits. Thompson , 375 U.S. at 387. Based on this assurance, the petitioner filed a notice of appeal after the post-trial motion was ruled upon, which was more than sixty days after the original entry of judgment. The court of appeals dismissed the appeal for lack of jurisdiction, holding that the motion for a new trial filed in the district court was untimely and hence did not defer the time for filing a notice of appeal. The Supreme Court vacated the judgment and held that the court of appeals had jurisdiction in light of the "unique circumstances" of the case, which fit within the Harris exception. Id.

Finally, in Wolfsohn, the Supreme Court summarily reversed, in a one-sentence memorandum opinion, the dismissal of another untimely appeal where the district court had extended the ten-day period for filing a motion under Rule 59(b). Wolfsohn, 376 U.S. at 203. The Court did not state its reasoning or the facts of the case, citing only the lower court opinion, Harris, and Thompson.³ Again, four Justices dissented, arguing that Thompson and Wolfsohn represented an unwarranted extension of Harris, which "should be confined to its peculiar facts, i.e., a finding of `excusable neglect' under Rule 73(a)." Wolfsohn, 376 U.S. at 203.

The Supreme Court has not applied the unique circumstances doctrine since Wolfsohn, and subsequent case law effectively calls the validity of the...