Vogelsang v. Patterson Dental Co.

• Decision Date: 29 May 1990
• Docket Number: No. 89-5424,89-5424
• Citation: 904 F.2d 427
• Parties: 53 Empl. Prac. Dec. P 40,008, 16 Fed.R.Serv.3d 1007 Donald A. VOGELSANG, Appellant, v. PATTERSON DENTAL COMPANY, a Delaware corporation, PDA, Inc., a Minnesota corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 427

904 F.2d 427

53 Empl. Prac. Dec. P 40,008, 16 Fed.R.Serv.3d 1007

Donald A. VOGELSANG, Appellant, v. PATTERSON DENTAL COMPANY, a Delaware corporation, PDA, Inc.,

a Minnesota corporation, Appellees.

No. 89-5424.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1990.

Decided May 29, 1990.

Steve G. Heikens, Minneapolis, Minn., for appellant.

R. Ann Huntrods, St. Paul, Minn., for appellees.

Before JOHN R. GIBSON, WOLLMAN and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Donald Vogelsang appeals from a district court ¹ order denying his motion for an extension of time to file a notice of appeal. Following an adverse judgment on Vogelsang's age discrimination claim, Vogelsang's attorney deposited a notice of appeal in the mail. This notice was not received by the district court clerk within the thirty days required by Federal Rule of Appellate Procedure 4(a)(1). When the attorney learned that the notice had not been received, some fifty-six days after the adverse judgment was entered, he filed a motion with the court requesting an extension of time in which to file a notice of appeal. The district court determined that the mailing was insufficient to constitute a filing under the rule, that there was no excusable neglect justifying a late filing, and that there was insufficient evidence presented to establish that the notice was entitled to a presumption of delivery. Accordingly, the court denied the motion. We affirm the judgment of the district court.

The district court entered an order granting summary judgment for the defendants in Vogelsang's age discrimination suit on February 17, 1989. The order was mailed to the parties and Vogelsang's counsel received a copy on February 22, 1989. In an affidavit later filed with the district court, Vogelsang's counsel stated that on February 22, prior to departing on a trip, he drafted, signed, and dated a notice of appeal. He also stated that when he returned from his trip, March 13, six days before the notice of appeal was due, he discovered that the notice had not yet been filed. He then altered the date on the notice from February 22 to March 13, and deposited the notice in the United States mail. The clerk's office, however, did not receive the notice.

On April 14, Vogelsang's attorney realized that the clerk's office had not received the notice of appeal and therefore filed a motion requesting a time extension in which to file a notice of appeal. The district court, in a carefully researched opinion, ruled that a notice of appeal is filed when received by the clerk, not when deposited in the mail; that Vogelsang had failed to establish excusable neglect; and that, since Vogelsang's attorney had not proven that the notice was timely mailed, he was not entitled to a presumption that the notice had been delivered. Vogelsang v. Patterson Dental Co., 716 F.Supp. 1215 (D.Minn.1989).

Under Rule 4(a)(1) and 28 U.S.C. Sec. 2107 (1982), "a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). The purpose of this rule is

to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant's demands. Any other construction of the statute would defeat its purpose.

Id. (quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483 (1943)). Moreover, it is well-established that this time limit is mandatory and jurisdictional, id., and if notice is not filed in a timely fashion, an appellate court is without authority to exercise its jurisdiction. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988).

I.

Vogelsang first argues that the district court erred in finding that an affidavit stating that his attorney mailed the notice of appeal was insufficient to establish filing with the clerk of the district court under Rule 4(a)(1). We review this determination concerning Rule 4(a)(1) de novo. West v. Keve, 721 F.2d 91, 96 (3d Cir.1983) (Aldisert, J.). In essence, Vogelsang advocates a rule that notices of appeal are filed under Rule 4(a)(1) when placed in the mail. Under such a rule, a notice would be considered filed with the clerk of the district court when it was mailed, if the attorney mailing the notice provided an affidavit establishing that the notice had been properly addressed, had proper postage, and had been sent within the proper time period.

To support this position, Vogelsang argues that the court erred by: (1) finding that Vogelsang's attorney had not offered sufficient proof of timely mailing to establish a presumption of delivery; (2) not applying the rationale behind Supreme Court Rule 28.2, which recognizes the affidavit of counsel as a factor for establishing delivery for filing, to Rule 4(a)(1); ² (3) failing to take into account the extensive discovery, including subpoenaing and deposing court clerks and postal authorities, which would be necessary to prove receipt under the court's holding; and (4) not recognizing the importance of the fact that the defendants in Vogelsang's suit had notice that he intended to appeal. In essence, Vogelsang asks that we rewrite the plain language of the rules. We have carefully considered these arguments and have found them unpersuasive; we need not discuss them in detail.

We must consider, however, whether placing a notice of appeal in the mail is a filing that satisfies Rule 3(a) and Rule 4(a)(1) of the Federal Rules of Appellate Procedure. Both Rule 3(a) and Rule 4(a)(1) use essentially the same language for describing what constitutes filing. Rule 3(a) states that an appeal may be taken "by filing a notice of appeal with the clerk of the district court" and Rule 4(a)(1) states "notice of appeal required by Rule 3 [of the Federal Rules of Appellate Procedure] shall be filed with the clerk of the district court." Under Rule 25(a) of the Federal Rules of Appellate Procedure, "[f]iling may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing...." Fed.R.App.P 25(a) (emphasis added). This general rule has one exception: "briefs and appendices shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized." Id. As a notice of appeal does not fit within the exception created by Rule 25(a), it is evident that the Federal Rules of Appellate Procedure do not equate simply placing a notice in the mail with the filing required by the rules.

The majority of circuits considering this question under Rule 4(a)(1) and Bankruptcy Rule 8002(a) ³ have held that the notice must be received by the district court to be considered filed. See Haney v. Mizell Memorial Hosp., 744 F.2d 1467, 1472 (11th Cir.1984) (applying Rule 4(a)(1)); Pryor v. Marshall, 711 F.2d 63, 65 (6th Cir.1983) (applying Rule 4(a)(1)); Sanchez v. Board of Regents, 625 F.2d 521, 522 (5th Cir.1980) (per curiam) (applying Rule 4(a)(1)); In re Bad Bubba Racing Products, 609 F.2d 815, 816 (5th Cir.1980) (applying Bankruptcy Rule 802(a), now Rule 8002(a), and discussing Rule 4(a)(1)); Allen v. Schnuckle, 253 F.2d 195, 196-97 (9th Cir.1958) (discussing 28 U.S.C. Sec. 2107). Cf. Monark Boat Co. v. NLRB, 708 F.2d 1322, 1329 (8th Cir.1983) (holding that an application was not filed with the NLRB until it was received, noting that "[t]his interpretation is consistent with cases holding that a document is filed in a court only when it is received, not when it is mailed"). But see In re Pigge, 539 F.2d 369, 371 (4th Cir.1976) (applying Bankruptcy Rule 802(a), now Rule 8002(a), and holding that a notice of appeal was filed upon mailing).

The Supreme Court has recognized an exception to the rule that a notice is filed when received by the clerk with respect to pro se prisoners. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 2384, 101 L.Ed.2d 245 (1988). In this most limited category of cases, the pro se prisoner filings are considered filed when "delivered to prison authorities for forwarding to the court clerk." Id. at 2385 (footnote omitted). The Court reasoned that:

the rationale for concluding that receipt constitutes filing in the ordinary civil case is that the appellant has no control over delays between the court clerk's receipt and formal filing of the notice. This rationale suggests a far different conclusion here, since, as we discussed above, the lack of control of pro se prisoners over delays extends much further than that of the typical civil litigant: pro se prisoners have no control over delays between the prison authorities' receipt of the notice and its filing, and their lack of freedom bars them from delivering the notice to the court clerk personally.

Id. at 2384 (citations omitted).

The Supreme Court also recognized that many jurisdictions had rejected the proposition that mailing a notice equates to filing it, and stated that, "[t]o the extent these cases state the general rule in civil appeals, we do not disturb them." Id. Accordingly, except as to pro se prisoners under Houston v. Lack, we hold that a notice of appeal is filed under Rule 4(a)(1) when it is received by the clerk of the district court. See Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam). Therefore, we agree with the district court's conclusion that placing a notice in the mail is not a filing under the Federal Rules of Appellate Procedure.

II.

Vogelsang also argues that the district court abused its discretion by finding that his attorney's failure to ensure that the mailed notice of appeal was filed with the court was excusable neglect, and therefore, that the...