Shah v. Hutto
| Decision Date | 04 April 1983 |
| Docket Number | No. 81-6855,81-6855 |
| Citation | 704 F.2d 717 |
| 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 |
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 HALL and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
The question for decision is whether the 1979 amendment to Federal Rule of Appellate Procedure 4(a) has overruled this court's decision in Craig v. Garrison, 549 F.2d 306 (4th Cir.1977). In that case we held that when a pro se litigant files a notice of appeal that is untimely but within the period during which an extension of time might be granted pursuant to Rule 4(a), the litigant must be informed of the rule and provided an opportunity to establish excusable neglect.
Because of the 1979 amendment of the rule, several courts of appeals which had earlier applied the rule so as to reach results similar to that which we reached in Craig have held that they are now required to apply the rule rigidly and inflexibly even to incarcerated litigants proceeding pro se. 1 Because we find nothing in the text of the amended Rule 4(a)(5) or in the notes of the Advisory Committee to indicate that the 1979 amendment was intended to overturn the result reached by this court in Craig, we are unable to disturb that decision.
In their action brought pursuant to 42 U.S.C.A. Sec. 1983, summary judgment went against these two Virginia prisoners. The judgment was filed on August 25, 1981, and the plaintiffs were notified that if they wished to appeal the notice must be filed in the office of the clerk of the district court within thirty days after August 25, 1981. Their joint notice of appeal was mailed on September 22 from the Virginia State Penitentiary in Richmond, but it took the Postal Service three days to get it to the clerk of the district court also in Richmond. The letter languished in the Richmond, Virginia post office for three days, or was misdelivered and remailed. It was received and marked "filed" by the clerk on September 25, one day after expiration of the thirty-day appeal period.
The plaintiffs filed no motion for an extension of time within which to file the notice of appeal, but then no one told them there had been an unexpected delay in the mail, that the notice had been received one day late and that a motion for extension of time was necessary or appropriate.
FRAP 4(a)(5) as amended in 1979 provides:
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 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.
The defendants emphasize the requirement of the amended rule that a motion for an extension of time be filed before expiration of the thirty-day extension period. But the requirement of a motion was not new with the 1979 amendment. The earlier version of the rule permitted informal application for an extension of time if made within the thirty-day appeal period, but required that it be made by motion thereafter. As the Advisory Committee observed in its note to the 1979 amended rule, "A literal reading [of the earlier version] would require that the extension be ordered and the notice of appeal filed within the 30 day [extension] period ...." But, in general, the courts did not apply it inflexibly, for it would have tortured sensibility to hold that judicial delay in granting the requested extension could deny the right of appeal. So, at least in the cases of indigent prisoners, the rule was applied with considerable elasticity. 2
One of the obvious reasons for recasting the rule was the problem the court faced in In re Orbitec, 520 F.2d 358 (2d Cir.1975). In that case, a motion for an extension of time within which to file a notice of appeal had been made within the thirty-day extension period, but no notice of appeal had been filed. The district judge denied the motion for an extension of time, and there was a timely appeal of that order to the Court of Appeals for the Second Circuit. The court held that it was fruitless to review the order denying the motion for an extension of time since the absence of a notice of appeal from the judgment on the merits foreclosed review of that judgment, notwithstanding that a timely motion for an extension of time within which to file it had not been granted. The amended rule makes it clear that if there is a motion for an extension of time, the district court may act upon it after expiration of the thirty-day extension period, and that if the motion is then granted, a notice of appeal may be filed within ten days thereafter. The amendment to the rule would reverse the result in In re Orbitec.
The Advisory Committee in its note stated that the amendment would make it clear that a motion for extension of time must be filed within the thirty-day extension period. Indeed, what was implicit in the earlier version is made explicit by the amended rule, but there is every indication that the Committee's attention was focused upon the problem in In re Orbitec, which it cited in its preceding breath. Surely it was not intended to authorize the district judge to permit the filing of a notice of appeal after long delay and inaction. The requirement of a timely motion for an extension was the only thing upon which could be hung the new provision giving the appellant ten days after the order granting an extension during which he might file a notice of appeal.
Significantly, the Advisory Committee made no reference to Craig v. Garrison or the other cases wrestling with the problems presented when indigent prisoners, undertaking to represent themselves, do less than might be expected of experienced lawyers or, in particular, with the specific problem we face when the pro se plaintiffs have never been informed that there had been a delay in the mail and the notice of appeal had arrived one day late.
The explicit language of the amended rule would foreclose treatment of a response to a motion to dismiss in a court of appeals as a motion for an extension of time within which to file the notice. But the notice of appeal itself, in the circumstances of this case, implicitly contained an application for the extension necessary to permit its filing. One cannot discern any specific intention on the part of the plaintiffs to file a motion or to request an extension, but then they knew neither of the delay in the mail nor the need of a motion. There is no doubt, however, that the notice was a clear indication of their intention to appeal, and implicit in that is a wish to do and have done whatever was necessary to preserve and protect their rights. If someone in the clerk's office had informed them of the delay and of the appropriateness of a motion for an extension of time, there is little doubt but that they would have embraced the suggestion. Unless the notice of appeal is given such a construction, the rule becomes a trap for the unwary. 3
We are admonished to be liberal and flexible in our application and interpretation of Rules 3 and 4. In a general note to Rules 3 and 4 the Advisory Committee stated:
[T]he proposed rules merely restate, in modified form, provisions now found in the civil and criminal rules (FRCP 5(e), 73; FRCrP 37), and decisions under the present rules which dispense with literal compliance in cases in which it cannot fairly be exacted should control interpretation of these rules. Illustrative decisions are: Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964) (); Richey v. Wilkins, 335 F.2d 1 (2d Cir.1964) (); Halfen v. United States, 324 F.2d 52 (10th Cir.1963) (); Riffle v. United States, 299 F.2d 802 (5th Cir.1962) (). Earlier cases evidencing "a liberal view of papers filed by indigent and incarcerated defendants" are listed in Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917 [919 n. 5], 8 L.Ed.2d 21 (1962).
We approach our task of application and interpretation of Rule 4(a)(5) in that spirit. The rules have been greatly simplified and clarified, but there is still an occasion when liberality and flexibility in their application are necessary to avoid unjust and unwarranted exclusion of litigants from judicial relief intended by the rules to be available to them.
Of course, the Supreme Court itself has directed such a flexible approach. In Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), a notice of appeal mailed by a federal prisoner from his place of confinement in Atlanta, Georgia on the eighth day after the imposition of his...
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