Shah v. Hutto

• Decision Date: 08 December 1983
• Docket Number: No. 81-6855,81-6855
• Parties: Abdul SHAH, Robert Jackson, Appellants, v. T.D. HUTTO, Gene Johnson, Major San Fillippio, Mrs. O.J. Garland, J.M. King, Members of the ICC, R.A. Bass, A.P. Grizzard, S.S. Taylor, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1167

722 F.2d 1167

Abdul SHAH, Robert Jackson, Appellants, v. T.D. HUTTO, Gene Johnson, Major San Fillippio, Mrs. O.J.

Garland, J.M. King, Members of the ICC, R.A. Bass,

A.P. Grizzard, S.S. Taylor, Appellees.

No. 81-6855.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 4, 1983.

Decided Dec. 8, 1983.

Martin J. Barrington, Richmond, Va. (Hunton & Williams, Richmond, Va., on brief), for appellants.

Alan Katz, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen., of Virginia, Richmond, Va., on brief), for appellees.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge, sitting en banc.

K.K. HALL, Circuit Judge:

Virginia prisoners, Abdul Shah and Robert Jackson, seek to appeal from the district court's dismissal of their complaint brought pursuant to 42 U.S.C. Sec. 1983. A panel majority of this Court held that the 1979 amendment to Federal Rule of Appellate Procedure 4(a) did not overrule our decision in Craig v. Garrison, 549 F.2d 306 (4th Cir.1977). Shah v. Hutto, 704 F.2d 717 (4th Cir.1983). Because of the exceptional importance of this issue, we granted rehearing en banc. We conclude that we have no appellate jurisdiction and dismiss the appeal.

On August 25, 1981, the district court entered summary judgment for defendants. Thirty-one days later, on September 25, 1981, plaintiffs' notice of appeal was filed. Plaintiffs have never filed a motion for an extension of time within which to file a notice of appeal due to excusable neglect.

Notice of appeal in a civil suit is required to be filed within thirty days of the entry of judgment. Fed.R.App.P. 4(a)(1). "This 30-day time limit is 'mandatory and jurisdictional.' " Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). In Craig v. Garrison, 549 F.2d 306 (4th Cir.1977), Craig filed his notice of appeal thirty-seven days after dismissal of his habeas petitions, but under former Fed.R.App.P. 4(a), ^* we held that [W]hen a pro se litigant's notice of appeal is filed within sufficient time to allow the district court to grant an extension of time upon a showing of excusable neglect, the court should not treat the notice as untimely until it has advised the litigant of the requirements of F.R.A.P. 4(a) and provided him an opportunity to establish excusable neglect to justify the extension of time authorized by that rule.

Id. at 307. In effect, we treated Craig's untimely notice of appeal as a motion for an extension of time.

Thereafter, in 1979, Congress amended Fed.R.App.P. 4(a) to read as follows:

The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

(Emphasis added). This language expressly requires the filing of a motion for an extension of time. The Notes of the Advisory Committee on Appellate Rules further explain that:

The proposed amendment would make it clear that a motion to extend the time must be filed no later than 30 days after the expiration of the original appeal time, and that if the motion is timely filed the district court may act upon the motion at a later date, and may extend the time not in excess of 10 days measured from the date on which the order granting the motion is entered.

Under the present rule there is a possible implication that prior to the time the initial appeal time has run, the district court may extend the time on the basis of an informal application. The amendment would require that the application must be made by motion, though the motion may be made ex parte. After the expiration of the initial time a motion for the extension of the time must be made in compliance with the F.R.C.P. [Federal Rules of Civil Procedure, this title] and local rules of the district court.

(Emphasis added).

Other Circuit Courts, which have reviewed the effect of the 1979 amendments to Rule 4(a) of the Federal Rules of Appellate Procedure under similar circumstances, have abandoned the rationale of Craig v. Garrison, and have held that a motion to extend the time must be filed no later than thirty days after the expiration of the original appeal period in order for a court of appeals to have jurisdiction over the appeal. Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983); Brooks v. Britton, 669 F.2d 665 (11th Cir.1982); Pettibone v. Cupp, 666 F.2d 333 (9th Cir.1981); Wyzik v. Employee Benefit Plan of Crane Co., 663 F.2d 348 (1st Cir.1981); Mayfield v. United States Parole Commission, 647 F.2d 1053 (10th Cir.1981); Sanchez v. Board of Regents, 625 F.2d 521 (5th Cir.1980). We agree with the reasoning of these cases and hold that the 1979 amendment to Fed.R.App.P. 4(a) overruled our decision in Craig v. Garrison.

The fact that plaintiffs are incarcerated and are proceeding pro se does not change the clear language of the Rule. Dismissal is required where the Rule has not been followed. Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983); Brooks v. Britton, 669 F.2d 665 (11th Cir.1982); Pettibone v. Cupp, 666 F.2d 333 (9th Cir.1981); Mayfield v. United States Parole Commission, 647 F.2d 1053 (10th Cir.1981); Meggett v. Wainwright, 642 F.2d 95 (5th Cir.1981), cert. denied, 454 U.S. 1090, 102 S.Ct. 653, 70 L.Ed.2d 628 (1981).

We are bound by the language of the 1979 amendment and its requirement of a "motion filed" within the second thirty-day period at the latest. A bare notice of appeal should not be construed as a motion for extension of time, where no request for additional time is manifest. No motion was timely filed in this case.

Accordingly, we dismiss the appeal for lack of jurisdiction, and we do not reach the merits.

DISMISSED.

HAYNSWORTH, Senior Circuit Judge, with whom HARRISON L. WINTER, Chief Judge, MURNAGHAN and ERVIN, Circuit Judges, join, dissenting:

For the reasons more fully stated in the majority panel opinion, Shah v. Hutto, 704 F.2d 717 (4th Cir.1983), we dissent.

A majority of this en banc court has the power to overrule Craig v. Garrison, 549 F.2d 306, 307 (4th Cir.1977), if it thinks that Craig was wrongly decided. However, we cannot accept the proposition that the 1979 amendment to Federal Rule of Appellate Procedure 4(a) overturned Craig and mandated the result reached by the majority.

The 1979 amendment effected three substantive changes in Rule 4(a)(5), none of which is relevant to the problem presented in this case.

The old rule permitted an extension of time within which to file a notice of appeal to be granted upon an informal application made before the expiration of the thirty-day appeal period. As amended in 1979, the rule requires any such application for an extension to be by motion, though it may be ex parte. Since there was no application for an extension of time made before expiration of the thirty-day appeal period, that change has no bearing upon this case.

We are concerned here...