368 F.3d 263 | 3rd Cir. | 2004
ALITO, Circuit Judge: II.
This is an appeal from an order of A. the District Court dismissing all of the Before reaching the merits of this claims asserted in the pro se complaint appeal, we are required to consider filed by Samuel T. Poole (“Poole”), an whether we have appellate jurisdiction. inmate. Poole’s notice of appeal was not Bender v. Williamsport Area School Dist., filed on time, apparently because of delay 475 U.S. 534, 541 (1986). The timeliness in receiving notice of the entry of the order of an appeal is a mandatory jurisdictional dismissing his claims. Instead of moving prerequisite. United States v. Robinson, to reopen the time to file an appeal under 361 U.S. 220, 224 (1960). In a civil case, Rule 4(a)(6) of the Federal Rules of Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Poole filed a notice Appellate Procedure generally requires a of appeal shortly after finally receiving notice of appeal to be “filed with the notice. We hold that we lack jurisdiction district clerk within 30 days after the to entertain this appeal. judgment or order appealed from is I. entered.” In this case, the order dismissing Poole’s complaint was entered on March This case concerns the paternity of 26, 2002, and Poole deposited his notice of a minor who Samuel T. Poole claims is his appeal in his prison’s internal mail system son. In 2001, Poole filed what he called a 44 days later. Under Appellate Rule “Petition for a Writ of Habeas Corpus” 4(c)(1), Poole’s notice of appeal is against several public officials and private regarded as having been filed upon individuals, alleging that a series of actions mailing, but because he did not mail the taken in connection with two family law notice of appeal within 30 days after the proceedings – one in Delaware and the relevant order was entered, he did not other in Pennsylvania – violated his Fifth comply with Rule 4(a)(1). and Fourteenth Amendment rights by interfering with his access to his son. The B. District Court treated the case as an action
Poole argues that his notice of filed under 42 U.S.C. § 1983 and appeal should be regarded as having been permitted Poole to proceed in forma filed on time because there was a delay in pauperis . The District Court then his receipt of notice from the district court dismissed the claims ag ainst tw o clerk’s office regarding the entry of the defendants sua sponte for lack of personal order of dismissal. This delay resulted jurisdiction, and the Court dismissed the from Poole’s transfer from on e claims against the remaining defendants as correctional institution to another shortly frivolous pursuant to 28 U.S.C. §§ before the order of dismissal was entered. 1915(e)(2)(B)-1915A(b)(1). When Poole made his initial filing and until some time in late March 2002, he was
incarcerated in the Delaware Correctional Samuel T. Poole BN 5599 Center in Smyrna, Delaware. When the Box 244 District Court entered the order dismissing Graterford Pa 19426-0244 Poole’s claims, the clerk of the court
To: Clerk apparently sent notice to Poole and all of the other parties on that same day. The It will take me a couple of notice to Poole was mailed to the facility weeks to get a pen or to in Delaware, but by the time it arrived, make a phone call or to get Poo le h a d b e e n t ra n s f e r re d to some paper this is the only Pen nsylvan ia’s State C orrecti onal way I can contact you with a Institution at Graterford. The Postal pencil Service returned the notice to the clerk on
Thank you April 24, 2002, at which time the clerk faxed an “address request” to the Delaware Samuel T. Poole Department of Corrections. The clerk
By the time this letter was sent and received Poole’s new address on April 29 received, the clerk had already mailed and then mailed a copy of the order to the notice to Poole’s Delaware address, and correct address. Poole received the order apparently because this letter did not state on May 6 and mailed his notice of appeal expressly that Poole’s address had changed three days later. and did not request that the clerk change Poole argues that handwritten the address listed on the docket, the letter letters that he sent to the District Court and did not alert the clerk’s office that the that were received on March 22 and April notice sent a few days earlier had been 1 should have alerted the clerk to his mailed to a facility where Poole was no transfer. The first letter was described on longer housed. the docket sheets as “Letter to Clerk of the
Poole argues that his notice of Court dated 3/21/02 by Samuel Poole RE: appeal should be regarded as having been questions regarding Habeas Corpus.” This filed on time under the reasoning of United letter bore Poole’s address at the Delaware States v. Grana, 864 F.2d 312 (3d Cir. facility, and in the midst of a discussion of 1989). In Grana, a criminal case, we held other matters, the letter stated: “I will be that, “in computing the timeliness of returning to P.A. 3-24-02 is my Max out filings which are jurisdictional in nature, date and then my detainer come up . . . .” any delay by prison officials in The second letter was described in transmitting notice of a final order or the docket sheets as “Letter by Plaintiff, judgment to an incarcerated pro se litigant received 4/1/02, advising the Court he has s h o u l d b e e x c l u d e d f r o m t h e no pen, paper, or ability to make telephone computation.” Id. at 313. In the present calls.” This handwritten note in its entirety case, Poole complains about delay states: attributable to the clerk’s office, not prison viable [2] in criminal cases because the officials, but Poole argues that Grana stands for the broad proposition that Federal Rules of Criminal Procedure do “when official delay . . . interferes with not contain any provision analogous to receipt of the notice of appeal, that delay Civil Rule 77(d) and because Appellate ‘must be subtracted from calculation of Rule 4(b), which deals with appeals in time for appeal.’” Appellant’s Br. at 1 criminal cases, does not contain any (quoting Grana, 864 F.2d at 316). provision analogous to Appellate Rule
4(a)(6). [3] However, the Grana approach Poole’s argument overlooks the cannot be used to extend the time for filing significance of the fact that Grana was a criminal case. Because the present case is civil, the approach that we took in Grana is foreclosed by Federal Rule of Civil Procedure 77(d) and Federal Rule of [2] Grana was decided before Appellate Procedure 4(a). Under Civil Appellate Rule 4(a)(6) was added and Rule 77(d), a district court clerk must corresponding changes were made in notify all parties not in default Civil Rule 77(d). However, because “[i]mmediately upon the entry of an order these changes do not apply to criminal or judgment.” The Rule goes on to state, cases, Grana was not affected. however, that “[l]ack of notice of the entry [3] The absence of criminal analogs by the clerk does not affect the time to appeal or relieve or authorize the court to to F ED . R. C IV . P. 77(d) and F ED . R. A PP . P. 4(a)(6) is probably due to the fact that relieve a party for failure to appeal within the time allowed, except as permitted in the the vast majority of orders in criminal Rule 4(a) of the Federal Rules of cases from which a defendant may take an appeal are judgments of conviction Appellate Procedure.” Appellate Rule 4(a), in turn, provides a procedure for and sentence. A criminal defendant must reopening the time to file a notice of be present when sentenced, and appeal when the party desiring to appeal consequently there is no need for the does not receive notice of the entry of the district court clerk to notify the defendant judgment or order. In a civil case, by mail regarding this occurrence. For therefore, the only way in which a party the same reason, there are not many may obtain relief based on a clerk’s failure instances in which a criminal defendant runs the risk of failing to file a timely to serve notice of the entry of a judgment or order is via Appellate Rule 4(a), not via notice of appeal due to lack of notice the Grana approach. regarding the entry of the order from
which the appeal is taken. Grana was The Grana approach remains one of the relatively unusual criminal cases in which a defendant took an appeal from an order other than a judgment of conviction and sentence.
a notice of appeal in a civil case. [4] or order is entered or within 7 days after the moving
C.
party receives notice of the 1. entry, whichever is earlier; (B) the court finds that the The remaining question that we moving party was entitled to must consider is whether there is any way notice of the entry of the in which Poole can obtain relief under judgment or order sought to Appellate Rule 4(a)(6). That Rule states: be appealed but did not The district court may receive the notice from the reopen the time to file an district court or any party appeal for a period of 14 within 21 days after entry; days after the date when its and (C) the court finds that order to reopen is entered, n o p a r ty w o u l d b e but only if all the following prejudiced. conditions are satisfied: (A)
The terms of Appellate Rule 4(a)(6) the motion is filed within thus contemplate the filing of a motion to 180 days after the judgment reopen within seven days after notice is received. Here, Poole concedes that he received notice on May 6, 2002. He thus [4] Moreover, even if Civil Rule had until May 13 to move to reopen, but 77(d) and Appellate Rule 4(a) did not instead of filing a motion to reopen, he preclude us from applying Grana in the simply filed a notice of appeal on May 9. civil context, we would be reluctant to Unless we can construe his notice of extend Grana to a case such as the appeal as a motion to reopen, he cannot present one, where the delay was not qualify for relief under Appellate Rule primarily due to Poole’s status as an 4(a)(6). inmate but to the simple fact that he was
2. moved. Although Poole argues that his letter of April 1 should have alerted the Our court has not decided whether district court clerk that he had been a pro se notice of appeal may be construed transferred, neither of his letters as a motion to reopen under Appellate expressly informed the clerk of that fact Rule 4(a)(6), but we have held that a or requested that his address be changed notice of appeal cannot be construed as a in the court’s records. It is simply asking motion to extend the time to appeal in a too much of the district court clerk to civil case under Appellate Rule 4(a)(5). note that the address listed on the April 1 Herman v. Guardian Life Insurance Co., letter was different from the address that 762 F.2d 288 (3d Cir. 1985) (per curiam). Poole had previously provided. In Herman, we noted that before Appellate Rule 4(a)(5) was amended in 1979, we had an extension of time to file a notice of been “‘generally willing to treat a tardy appeal in a criminal case is striking. notice of appeal as the substantial Appellate Rule 4(b)(4) expressly states equivalent of a motion to extend the time that in criminal cases an extension may be for filing on the ground of excusable granted “with or without motion.” neglect.’” Id. at 289 (citation omitted).
3. We held, however, that the 1979 amendment prevented us from continuing The reasoning of Herman and like that practice. We noted that the first cases from other circuits militates in favor of a similar interpretation of Appellate sentence of Fed. R. App. P. 4(a)(5) permits a district court to extend the time to file a Rule 4(a)(6). The critical language in the notice of appeal “upon motion,” and we two rules is not materially distinguishable. Appellate Rule 4(a)(5) states in relevant observed: “Thus, the filing of a motion is expressly required to obtain an extension part: of time.” Id. We also noted that the
The district court may Committee Notes on the 1979 amendment extend the time to file a to this provision stated that “‘[t]he notice of appeal if . . . a proposed amendment would make it clear party so moves no later than that a motion to extend the time must be 30 days after the time filed no later than 30 days after the proscribed by this Rule 4(a) expiration of the original appeal time.’” expires . . . . Id. at 289-90 (quoting Appellate Rule 4(a)(5), C ommi ttee N otes, 19 79 (emphasis added). Appellate Rule 4(a)(6) contains similar language: Amendments). We therefore held that an extension may not be granted under
The district court may Appellate Rule 4(a)(5) unless a motion is reopen the time to file an filed. appeal . . . if . . . the motion Every other court of appeals to is filed within 180 days after consider the question has reached the same the judgment or order is conclusion. See 16A C HARLES A LAN entered or within 7 days W RIGHT , A RTHUR R. M ILLER , E DWARD H. after the moving party C OOPER , AND P ATRICK J. S CHILTZ , receives notice of the entry . . . . F EDERAL P RACTICE AND P ROCEDURE § 3950.3 at 139 & n.11 (1999 & 2003 Supp.)
(emphasis added). Likewise, the (citing cases). Not only are these decisions Committee Notes for the two provisions supported by the language of Appellate are hard to distinguish in the respect Rules 4(a)(5) and 4(a)(6) and their relevant here. The Notes on the 1979 Committee Notes, but the contrast with the amendments to Rule 4(a)(5) state: provision of the Appellate Rules governing The proposed amendment Appellate Rules 4(a)(5) and (6), see id. at would make it clear that a 187 n.5, the Sanders panel gave several motion to extend the time reasons for interpreting the rules must be filed no later than differently, but we do not find these 30 days after the expiration reasons persuasive. of the original appeal time .
In part, the Sanders panel seems to . . . have been influenced by a belief that (emphasis added). parties who move for an extension under Rule 4(a)(5) are (as a group) less The Notes on the 1991 amendments blameless than those (as a group) who to Rule 4(a)(6) state: move to reopen the time to appeal under Rule 4(a)(6). [5] This assessment of the Reopening may be ordered only upon a motion filed relative blamelessness of the two groups is within 180 days of the entry hardly clear cut. Parties who seek of a judgment or order or extensions under Rule 4(a)(5) are within 7 days of receipt of sometimes entirely blameless – for notice of such entry, example, those who fail to file on time whichever is earlier. because of “an act of God or unforeseen
human intervention.” Pioneer Inv. Serv. (emphasis added). Co. v. Brunswick Associates Ltd. P’ship, Because the decision in Herman 507 U.S. 380, 388-89 (1993) (discussing was based on language in Appellate Rule “excusable neglect” under a bankruptcy 4(a)(5) and its Committee Note that is not rule). And parties who fail to file a timely significantly different from language in notice of appeal because they have not Appellate Rule 4(a)(6) and its Committee Note, we conclude that we should apply received notice of the relevant judgment or appeal has expired. This argument is order may not be entirely blameless [6] – for
based on a hypothetical situation that is example, the party who is informed by the unlikely to arise with any frequency, if at court that a dispositive order is expected all – namely, a case in which (a) prison within a week but does not thereafter make officials risk the consequences of any effort to find out whether the order has obstructing court mail in order to prevent been issued. In any event, assuming that a prisoner from appealing a district court there is some difference in the relative decision that the prisoner has lost, (b) the blamelessness of the two groups, the prisoner learns of the decision within 180 difference is far too slight to justify days, but (c) instead of moving to reopen divergent interpretations of the very the time to appeal, the prisoner simply files similar language of Rules 4(a)(5) and a notice of appeal. We will not permit our 4(a)(6). interpretation of Rule 4(a)(6) to be
governed by such an extreme hypothetical. The remaining reasons given in If at some time in the future we are Sanders are likewise unconvincing. The presented with such an outrageous case, Sanders Court stated that it had “a duty to we are confident that we have the tools to liberally construe” a pro se litigant’s ensure that the right to appeal is not submission, 113 F.3d at 187 (internal defeated. quotation and citation omitted), but this duty cannot justify taking a fundamentally In conclusion, we hold that relief different approach in interpreting filings under both Appellate Rules 4(a)(5) and under Rules 4(a)(5) and 4(a)(6). 4(a)(6) requires the filing of a motion, not
just a notice of appeal. We understand that Finally, we are not moved by the this interpretation may lead to harsh results Sanders panel’s argument that its under both rules, and it may be that it interpretation of Rule 4(a)(6) is needed so would be preferable to treat a pro se notice that prison officials will not prevent of appeal as a motion under both rules. inmates from taking timely appeals by But we believe that Appellate Rules ensuring that they do not receive notice of 4(a)(5) and 4(a)(6) must be read adverse decisions until after the time to consistently, and thus we conclude that Rule 4(a)(6) demands a motion.
III.
[6] Courts have faulted such parties for failing to make due inquiry about Because Poole’s Notice of Appeal adverse judgments or orders. See, e.g., was not timely filed and Poole failed to O.P.M. Leasing Services Inc., 769 F.2d move to reopen the time to file an appeal, 911 (2d Cir. 1985) (party who was not we lack jurisdiction to decide the merits of served with notice under Civil Rule 77(d) his appeal. Therefore, for the reasons set faulted for not looking for notice of order out above, this appeal is dismissed. in legal periodical).
NOTES
[5] The Court stated that “when Herman in the present context as well. We therefore hold that Appellate Rule 4(a)(6) through no fault of his own, a pro se requires a motion to reopen. While “no litigant does not receive notice of the particular form of words is necessary to order from which he seeks to appeal, it render a filing a ‘motion,’” Campos v. would be unjust to deprive him of the LeFebvre, 825 F.2d 671, 676 (2d Cir. opportunity to present his claim to this court.” 113 F.3d at 187. The Court 1987), a simple notice of appeal does not suffice. added that a “notice of appeal filed late because the appellant did not receive We are aware that the Eleventh notice of the judgment should be treated Circuit reached a contrary result in Sanders differently (and more favorably) than v. United States, 113 F.3d 184 (11th Cir. those filed late for other reasons (i.e., 1997) (per curiam). While acknowledging those governed by Rule 4(a)(5)’s the similarity between the language of excusable neglect standard).” Id.
