U.S. v. Heller

• Decision Date: 19 February 1992
• Docket Number: No. 91-1811,91-1811
• Citation: 957 F.2d 26
• Parties: Energy Mgt. P 26,666 UNITED STATES of America, Plaintiff, Appellee, v. Glenn Martin HELLER, d/b/a Beacon Hill Gulf, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 26

957 F.2d 26

Energy Mgt. P 26,666

UNITED STATES of America, Plaintiff, Appellee, v. Glenn Martin HELLER, d/b/a Beacon Hill Gulf, Defendant, Appellant.

No. 91-1811.

United States Court of Appeals, First Circuit.

Submitted Jan. 21, 1992.

Decided Feb. 19, 1992.

Glenn Martin Heller on Motion to Transfer Appeal to the Temporary Emergency Court of Appeal and on Opposition to Appellee's Motion for Summary Dismissal, for defendant, appellant.

Wayne A. Budd, U.S. Atty., and Countess C. Williams, Asst. U.S. Atty., Boston, Mass., on Motion for Summary Dismissal, for plaintiff, appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and SELYA, Circuit Judge.

PER CURIAM.

Plaintiff-appellee the United States has moved for summary dismissal of this appeal on the ground that this court lacks appellate jurisdiction. Defendant-appellant Glenn Heller, proceeding pro se, has moved to transfer the appeal to the Temporary Emergency Court of Appeals ("TECA").

This appeal is from a district court judgment enforcing a remedial order issued by the Department of Energy and ordering Heller, a gasoline retailer, to pay $159,689.95 in civil penalties and in restitution for customer overcharges. Heller does not dispute the government's assertion that this case arises under the Economic Stabilization Act, 12 U.S.C. § 1904 note, and the Emergency Petroleum Allocation Act, 15 U.S.C. § 751 et seq. Accordingly, TECA has exclusive jurisdiction over this appeal. 12 U.S.C. § 1904 note, § 211(b)(2); 15 U.S.C. § 754(a)(1). This court has no jurisdiction.

Under 28 U.S.C. § 1631, "[w]henever ... an appeal ... is ... filed with ... a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such ... appeal to any other such court in which the ... appeal could have been brought at the time it was filed...." (Emphasis added).

This statutory language makes it clear that in order for the transferor court to decide whether the statutory requirements for transfer are met, the transferor court must first decide whether the appeal could have been brought in the transferee court at the time it was filed. Thus, for the purpose of deciding whether we should transfer the case, we must inquire whether TECA would have jurisdiction. See, e.g., Keller v. Petsock, 849 F.2d 839, 843 (3d Cir.1988); Commonwealth of Massachusetts v. Departmental Grant Appeals Board, 815 F.2d 778, 784 (1st Cir.1987); Billops v. Dep't of the Air Force, 725 F.2d 1160, 1163 (8th Cir.1984). In doing so, of course, we must apply TECA's rules and precedents as we believe TECA would apply them.

Absent some extension of the time for appeal, this appeal could not have been brought in TECA at the time it was filed. Heller filed the notice of appeal on July 22, 1991, over thirty days after the district court's judgment entered on May 30, 1991. Rule 15(a) of TECA's General Rules requires that "[a] notice of appeal ... shall be filed with the clerk of this court within 30 days of the entry of judgment by the district court." Heller's notice of appeal was late. Accordingly, unless the time for appeal were somehow extended, we would not have any statutory basis under 28 U.S.C. § 1631 for transferring the appeal to TECA.

TECA has made it clear that "[t]he 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, 285, 9 L.Ed.2d 261 (1962) ]...." Reed v. Kroger Co., 478 F.2d 1268, 1271 (Temp.Emer.Ct.App.1973). Thus, Heller's only hope to avoid dismissal of his appeal for lack of jurisdiction is to make a showing of "unique circumstances."

This court on November 8, 1991 issued an order in which, in recognition of Heller's pro se status, this court deferred ruling on the pending motions in order to give Heller an opportunity to raise any claim of unique circumstances he might have. Our order directed Heller to show cause why, on account of unique circumstances, this appeal should not be dismissed on grounds of untimeliness.

Heller responded to the show cause order by asserting that he had relied upon the incorrect assurances of employees in the district court clerk's office that he had sixty days in which to appeal. Heller stated as follows:

Appellant relied upon the assurances of District Court personnel and upon the accuracy of specific information provided by those same personnel in determining the amount of time available in which Appellant might properly file his timely appeal. Unfortunately, the District Court personnel proved to be mistaken in the information and assurances which they provided to the Appellant.

Upon Appellant's receipt in June of the District Court's Judgment dated May 29th, 1991, Appellant telephoned the Clerk's Office at the District Court to inquire about filing an appeal. Appellant plainly stated that he was proceeding pro se and that he wished to file an appeal. Appellant then inquired as to the specific rules governing time limitations for filing his appeal. He was told at that time by Court personnel in authority that since the United States Government is a party to the case, Appellant had sixty (60) days from the date of the District Court's Judgment in which to file his appeal. Appellant contacted the Clerk's Office on at least one subsequent occasion and was again reassured as to this filing deadline by other knowledgeable personnel within the Office.

As a direct result of these specific telephone conversations, Appellant felt certain that the information he was given was complete and accurate, and that the assurances by these knowledgeable personnel within the Clerk's Office could, in good faith, be safely and wholly relied upon by Appellant in calculating the maximum time available to properly file his appeal. Appellant never made (and had no reason to make) any prior assumptions concerning such filing time limitations since he is not an attorney.

According to Heller's response, the assurances by the clerk's office were given him within the 30-day period, so had he instead been given correct advice, he would have had plenty of time to file a timely appeal.

We now entertain Heller's allegations because an appellate court is the proper forum to determine whether the doctrine of unique circumstances should apply in a given case (although the appellate court may choose to remand the matter to the trial court for factual determinations, if necessary). Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1365 (3d Cir.1990); In re Provan, 74 B.R. 717, 720 (9th Cir.B.A.P.1987), aff'd, 862 F.2d 318 (9th Cir.1988). We see no need for a remand here because we conclude that even if Heller could demonstrate all of the factual assertions contained in his response to our show cause order, the unique circumstances doctrine would not apply.

The doctrine permitting a late appeal in cases of "unique circumstances" is a judge-made doctrine created by the Supreme Court. See Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964) (per curiam); Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam). The doctrine may be on shaky ground. Four Justices have rejected the doctrine in a dissent. Houston v. Lack, 487 U.S. 266, 282, 108 S.Ct. 2379, 2388, 101 L.Ed.2d 245 (1988) (Scalia, J., dissenting). Many courts have questioned its continuing vitality. See, e.g., Pinion v. Dow Chemical, 928 F.2d 1522, 1529 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 438, 116 L.Ed.2d 457 (1991), and cases cited therein; Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1562 (7th Cir.1990). The Supreme Court, however, passed up an opportunity to repudiate it in Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 993, 103 L.Ed.2d 146 (1989). In the absence of express overruling by the Supreme Court, courts of appeals generally have continued to assume that the doctrine remains viable. See, e.g., Feinstein v. Moses, 951 F.2d 16 (1st Cir.1991); Pinion, supra, 928 F.2d at 1530; Varhol, supra, 909 F.2d at 1562. TECA has not to date expressed any doubt on that point.

The Supreme Court in Osterneck stated that the unique circumstances exception, as articulated in Thompson, supra, 375 U.S. 384, 84 S.Ct. 397, "applies only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done." Osterneck, supra, 489 U.S. at 179, 109 S.Ct. at 993. TECA has indicated that it views the exception to be a "limited concept" with "narrow confines." United States v. Beacon Bay Enterprises, Inc., 840 F.2d 921, 923 (Temp.Emer.Ct.App.1988). The court has restated the doctrine as follows:

"[I]f at a time when a party might take a timely appeal, he receives assurances from the district court that he need not appeal ..., or that time for appeal is extended ..., then he should not lose his right to appeal where the district court was in fact mistaken."

United States v. Wickland, 619 F.2d 75, 79-80 (Temp.Emer.Ct.App.1980) (quoting United States v. Cooper, 482 F.2d 1393, 1399 (Temp.Emer.Ct.App.1973)). TECA also has stated that an attorney's ignorance of TECA's 30-day limit, assuming in error that the 60-day limit of Fed.R.App.P. 4(a)(1) would apply, did not constitute "unique circumstances" that would permit the granting of a motion for extension of time to file a notice of appeal. Beacon Bay Enterprises, Inc., supra, 840 F.2d at 924.

There has been some disagreement among the circuits about the scope of the doctrine, specifically about the extent to which misleading actions or statements by a judicial officer that fall short of an...