Lois Patterson, Administratrix of the Estate of Gracie Altizer, Deceased Allyne Muncey v. United States

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Lois PATTERSON, Administratrix of the Estate of Gracie Altizer, deceased; Allyne Muncey, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 88-3902

United States Court of Appeals, Fourth Circuit

Decided Aug. 3, 1989

881 F.2d 127

Argued April 10, 1989.

Every court of appeals which has considered the effect of a late filing of a petition to appeal has held that a failure to file within the prescribed ten day period deprives the appellate court of jurisdiction to consider the appeal. See, e.g.,

Milbert v. Bison Laboratories, Inc., 260 F.2d 431 (3d Cir.1958);

Alabama Labor Council, AFL-CIO Public Employees Union, Local No. 1279 v. Alabama, 453 F.2d 922, 925 (5th Cir.1972);

Nuclear Engineering Co. v. Scott, supra, 660 F.2d at 241;

Hanson v. Hunt Oil Co., 488 F.2d 70 (8th Cir.1973);

Hellerstein v. Mr. Steak, Inc., 531 F.2d 470, 471-72 (10th Cir.1976), cert. denied,

429 U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 85 (1976);

General Television Arts, Inc. v. Southern Railway, 725 F.2d 1327, 1330 (11th Cir.1984). The commentators also recognize the rule. See 9 J. Moore, B. Ward & J. Lucas, Moore‘s Federal Practice ¶ 205.03[2] (2d ed. 1988); 16 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3929 (1977). Such a holding is consistent with the general interpretation that § 1292(b) should be used sparingly and thus that its requirements must be strictly construed. See

Milbert v. Bison Laboratories, Inc., supra, 260 F.2d 431 (petition was filed 10 days late).

Defendants attempt to argue that their untimeliness was due to excusable neglect.³ There is no provision for waiver, however, in the applicable statute or rule. See

Braden v. University of Pittsburgh, supra;

Nakhleh v. Chemical Construction Corp., 366 F.Supp. 1221 (S.D.N.Y.1973). Cf. Fed.R.App.P. 4(a).

In sum, the defendants’ failure to comply with 28 U.S.C. § 1292 and Fed.R.App.P. 5(a) precludes, as of the present time, appellate review of their diversity jurisdiction claim. Accordingly, their appeal is DISMISSED.

Michael Fielding Gibson (Johnston, Holroyd & Gibson, Princeton, W.Va., on brief), for plaintiffs-appellants.

Phyllis Jackson Pyles (Jeffrey Axelrad, Civ. Div., U.S. Dept. of Justice, John R. Bolton, Asst. Atty. Gen., Washington, D.C., Michael W. Carey, U.S. Atty., on brief), for defendant-appellee.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc.*

MURNAGHAN, Circuit Judge:

The panel decision in this case,

Patterson v. United States, 856 F.2d 670 (4th Cir.1988), has now been vacated by the grant of en banc rehearing. We on the panel wrestled with the question of what would constitute a discretionary function excepting from the thrust of the Federal Tort Claims Act

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

We reversed a dismissal for lack of jurisdiction under the discretionary function exception, remanding for further proceedings to determine whether the action complained of was indeed or was not discretionary. However, in the en banc reconsideration of the case, the evidence presented on re-examination, convinced us that the record, taken as a whole, required affirmance of the decision by the district court. Even taking into account that what the Office of Surface Mining (“OSM“) inspector did may have amounted to a forbidden recommendation, nevertheless, it is clear that the OSM, when taking final action in determining that no emergency situation existed which warranted the expenditure of funds for emergency abatement of dangerous conditions, was acting in a discretionary manner. Therefore, the opinion of the district court is

AFFIRMED.

SPROUSE, Circuit Judge, dissenting:

Judge Murnaghan authored the original panel opinion, which I joined. I respectfully dissent from this one written for the en banc majority based on the reasoning he expressed in his first opinion.

* Judge Winter did not participate in en banc review.

Notes

3

Counsel for the defendants maintain that they deposited the appropriate filing papers with their internal mail room with sufficient alacrity to permit timely service by Federal Express. They insist that any culpability for the late delivery must be ascribed to neglect by the mail room personnel or Federal Express.

Case Details

Case Name: Lois Patterson, Administratrix of the Estate of Gracie Altizer, Deceased Allyne Muncey v. United States

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 3, 1989

Citation: 881 F.2d 127

Docket Number: 88-3902

Court Abbreviation: 4th Cir.