Reed v. Kroger Co., 7-6.

• Citation: 478 F.2d 1268
• Decision Date: 30 May 1973
• Docket Number: No. 7-6.,7-6.
• Parties: Lois REED, and all others similarly situated, Plaintiff-Appellant, v. KROGER CO., Defendant-Appellee.
• Court: U.S. Temporary Emergency Court of Appeals

478 F.2d 1268 (1973)

Lois REED, and all others similarly situated, Plaintiff-Appellant, v. KROGER CO., Defendant-Appellee.

No. 7-6.

Temporary Emergency Court of Appeals.

May 30, 1973.

M. Daniel Friedland, Indianapolis, Ind. (Yockey & Yockey, Indianapolis, Ind., on the brief), for appellant.

Alexander E. Bennett, Lanny J. Davis, Washington, D. C. (Arnold & Porter, Washington, D. C., on the brief), for appellee.

Before TAMM, Chief Judge, and ANDERSON and HASTINGS, Judges.

PER CURIAM:

Appellant brought suit in the United States district court at Indianapolis in November of 1971 purporting to represent all persons similarly situated in an action for damages against Kroger Company. She alleged that appellee, operator of a chain of supermarkets in Indiana, had illegally increased food prices during the "freeze period" commonly referred to as "Phase One." Appellee quickly moved to dismiss. After the relevant pleadings were filed, the district judge, on October 17, 1972, granted appellee's motion for reasons enumerated in his Memorandum of Decision. More than 100 days later, on January 29, 1973, appellant filed a notice of appeal with this court. He now seeks to justify that untimely filing.

I

Appellant filed a motion urging that his notice of appeal be accepted nunc pro tunc since the time to file the appeal concededly expired by November 18, 1972. The chain of events constituting his excuse for filing tardily began on or about November 15, 1972, when he prepared a notice of appeal to the Temporary Emergency Court of Appeals and personally delivered it for filing to the District Court for the Southern District of Indiana. This was clearly incorrect. Section 211(b)(2) of the Economic Stabilization Act, as amended,¹ which is aptly entitled "Judicial Review," provides in relevant part:

The Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder. Such appeals shall be taken by the filing of a notice of appeal with the Temporary Emergency Court of Appeals within thirty days of the entry of judgment by the district court. (Emphasis added.)

This statute had been in effect for nearly a year prior to the incorrect filing. It further provides, in § 211(h):

The provisions of this section apply to any actions or suits pending in any court, Federal or State, on the date of enactment of this section in which no final order or judgment has been rendered. Any affected party seeking relief shall be required to follow the procedures of this title. (Emphasis added.)

Pursuant to the power vested in it under § 211(b)(1)² the court shortly thereafter prescribed rules governing its procedure.³ Rule 16 accurately and succinctly reflected the Congressional mandate concerning time and place for filing a notice of appeal:

(a) A notice of appeal in any civil or criminal case arising under the Economic Stabilization Act of 1970 as amended by the Economic Stabilization Act Amendments of 1971 . . . shall be filed with the clerk of this court within 30 days of the entry of judgment by the district court. This time limitation shall be binding upon both government appeals and private appeals. . . . (Emphasis added.)⁴

In an attempt to justify his error, counsel for appellant filed an affidavit, the substance of which follows. Arriving on November 15, 1972, at the District Court for the Southern District of Indiana with notice of appeal in hand, he "conversed with the clerk and was told that he the clerk saw no reason why normal appellate rules would not apply and that a bond was necessary," which counsel posted. "The Clerk indicated that he had a set of rules from the United States Temporary Court of Appeals sic and that he would comply with those rules and process the appeal into court and send up the document sic entries for review." The affidavit continues: "I asked that individual the clerk at the time of filing whether I was following the proper procedure in the Rule 27, general rules of this Court. I made certain that the individual understood that an appeal is sic being taken to this Court, not to the 7th Circuit Court of Appeal." Sixty days later the district court clerk discovered the error, notified counsel for appellant, and the present motion resulted.⁵

II

Our first consideration must be whether any excuse may justify untimely filing in these circumstances. T.E.C. A. Rule 1 provides:

These Rules govern the procedure in the Temporary Emergency Court of Appeals of the United States. Except as to matters specifically covered by these rules, the Federal Rules of Appellate Procedure shall govern the procedure in all cases or proceedings in this court. The Rules shall be construed to secure the just, speedy and inexpensive determination of every action.

Since there is nothing in either the Economic Stabilization Act or the T.E.C.A. Rules which addresses an extension of time by this court for the filing of a notice of appeal, we must consult the Federal Rules of Appellate Procedure. The answer is readily available in Fed.R. App.P. 26(b), which provides, inter alia:

Enlargement of Time. The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal.

We are thus empowered to grant an extension only within the confines of the extremely limited concept of "unique circumstances" established by the Supreme Court. See Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962).

III

Initially we note that we are concerned not with an insignificant procedural rule, but rather with one "the courts have uniformly held . . . to be mandatory and jurisdictional." United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960); Files v. Rockford, 440 F.2d 811, 814 (7th Cir. 1971); Winchell v. Lortscher, 377 F.2d 247, 251 (8th Cir. 1967); and Howard v. Local 74, 208 F.2d 930, 932 (7th Cir. 1953). We also note that the enabling legislation, the legislative history and the Rules are replete with references to the primary role of expediency in appeals to the Temporary Emergency Court.⁶ Finally, we must measure the action of counsel for appellant in recognition of "the ease with which an appeal may be perfected." Files v. Rockford, supra, 440 F.2d at 814.

The only ground for extending the prescribed time for filing a notice of appeal which this court will consider is "a showing of unique circumstances." Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., supra, 371 U.S. at 217, 83 S.Ct. 283. In Harris, during the initial thirty day limit for appeal the district judge granted petitioner's motion for an extension based upon a showing of "excusable neglect." The court of appeals reversed this holding and consequently found that the appeal was untimely filed and dismissed for lack of appellate jurisdiction. The Supreme Court first noted 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 the finding, it should be given great deference by the reviewing court." 371 U.S. at 217, 83 S.Ct. at 285. Reversing and remanding for appellate hearing on the merits, the Court held that "whatever the proper result as an initial matter . . . the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge's ruling." Id.

Several years later, in Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), the Court reached a similar result. Although the notice of appeal was filed four days late, appellant had been incarcerated and ill, had not been assigned appellate counsel, and had in fact delivered the notice to the proper prison authorities for mailing to the court in time for filing. The Court concluded "that petitioner had done all that could reasonably be expected." 378 U.S. at 144, 84 S.Ct. at 1692. Both cases involved very "unique" and severe circumstances and it is therefore not unusual that courts more frequently arrive at the opposite conclusion. For example, the illness of an attorney, Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964), "a misunderstanding among appellant's lawyers," Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co., 385 U.S. 32, 33, 87 S.Ct. 195, 17 L.Ed.2d 31 (1966), and the difficulty of coordinating attorneys from several states, Files v. Rockford, supra, have all been held insufficient to justify such special treatment.

In the present case the district court entered its judgment on October 18, 1972. Appellant's notice of appeal, accompanied by counsel's affidavit and motion, were received in the clerk's office of this court on January 29, 1973. More than 100 days had elapsed between the final judgment and the belated filing. In an effort to justify the complete absence of professional care, counsel...