Lead Opinion
Dissent by Judge BYBEE; Dissent by Judge WATFORD
OPINION
Theodore Washington, an Arizona death row inmate, filed a notice of appeal (“NOA”) thirty-one days after the district court denied his petition for writ of habeas corpus. Federal Rule of Appellate Procedure 4(a)(1) limited the window for filing this notice to just thirty days, but the rules also provided a grace period for requesting an extension of time. Due to a combination of circumstances — including an error by the court — Washington did not request an extension because he did not learn that his NOA was one business day late until well after the grace period expired. Washington filed a motion under Federal Rule of Civil Procedure 60(b) asking the district court to vacate and reenter its judgment so that his appeal could be deemed timely. The district court denied his request, and he appeals.
The State argues that the district court lacked the authority to vacate and reenter its judgment, and that our court is without jurisdiction to consider Washington’s appeal. We disagree.
BACKGROUND
Washington is one of three co-defendants who were convicted in 1987 of first degree murder and other offenses after two of them entered a home and robbed and shot its occupants. State v. Robinson,
Washington’s case initially took the same procedural path as Robinson’s. The Arizona Supreme Court affirmed Washington’s conviction on direct appeal. State v. Robinson,
The district court’s denial of Washington’s federal habeas petition became final on June 8, 2005, but the court did not
Two circumstances aligned to prevent Washington from learning that his NOA was late within the thirty-day period allowed to seek an extension. First, there were no filings in the district court case, and no entries on the district court docket, for over two and a half months after the NOA was filed. Nothing happened that would have prompted Washington’s lawyers to recalculate the Rule 4(a)(1) deadline, so nothing short of spontaneously recalculating its due date would have put Washington’s lawyers on notice of their calendaring error. Second, the district court clerk’s office did not promptly send Washington’s late-filed NOA to the appellate clerk, despite an express directive that it do so. In 2005, Federal Rule of Appellate Procedure 3(d) required the district clerk to “promptly send a copy of the notice of appeal” to the appellate clerk. Fed. R. App. P. 3(d). For reasons not apparent from the record, the district clerk did not comply with this rule. Rather, the clerk waited for the district court to rule on Washington’s motion for a COA before sending the NOA to the appellate court. The district court ruled on the motion for a COA on September 30, over two and a half months after it was filed; the clerk then sent the NOA on to the appellate court; and a week after receiving it, the appellate clerk issued an order to show cause why Washington’s appeal should not be dismissed as untimely. By then it was too late to seek an extension of time under Rule 4(a)(5), but within six days Washington filed a motion under Rule 60(b) asking the district court to vacate and reenter its judgment so that his appeal could be decided on the merits.
Washington’s motion was premised on Federal Rule of Civil Procedure 60(b)(1) or, alternatively, Rule 60(b)(6). He asked the district court to vacate and reenter its judgment denying his habeas petition either: (1) as of June 9, 2005, thereby rendering his original appeal timely; or (2) immediately, thereby triggering a new thirty-day filing window pursuant to Rule 4(a)(1). The district court concluded that it did not have authority to grant the requested relief, and it denied the motion. The court also reasoned that Washington’s case did not qualify for relief under Rule 60(b)(1) or 60(b)(6).
Washington separately appealed the district court’s order denying his Rule 60(b) motion. A three-judge panel of our court considered Washington’s appeal from the denial of his habeas petition (appeal No. 05-99009) and his appeal from the denial of his Rule 60(b) motion (appeal No. 07-15536). The panel concluded that it lacked jurisdiction to consider Washington’s appeal from the denial of his habeas petition because his NOA was filed one day late. Washington v. Ryan,
Our court granted rehearing en banc. Washington v. Ryan,
STANDARD OF REVIEW
We review for an abuse of discretion a district court’s ruling on a motion for relief from judgment pursuant to Rule 60(b). Casey v. Albertson’s Inc.,
DISCUSSION
Washington argues that there are three ways this court can reach the merits of his habeas appeal: (1) decide that the district court abused its discretion by denying relief from judgment under Rule 60(b)(1) or 60(b)(6); (2) construe his motion for a COA as a Rule 4(a)(5) motion for an extension of time to file a NOA; or (3) deem his NOA premature, not untimely, because he filed it before the district court issued a COA. The State argues that Rule 4(a)’s time limits, which have a statutory basis in 28 U.S.C. § 2107, are mandatory and jurisdictional, and that Washington’s failure to comply with those limits precludes this court from exercising jurisdiction over his habeas appeal.
Rule 60(b) permits the district court to vacate and reenter judgment to restore the right to appeal in limited circumstances. This conclusion is consistent with 28 U.S.C. § 2107, Rule 4(a), and case law from the Supreme Court, our own circuit, and the Sixth and Seventh Circuits. The district court misperceived the extent of its authority to grant Washington’s Rule 60(b) motion. Washington’s case is in the narrow band of cases for which relief from judgment is appropriate. We therefore reverse the district court’s order denying relief. Because we conclude that well-established authority entitles Washington to relief under Rule 60(b), we do not reach his arguments that we should construe his motion for a COA as a Rule 4(a)(5) motion, or that his NOA was premature.
I. Washington is Entitled to Relief Under Rule 60(b).
The district court premised its denial of Washington’s Rule 60(b) motion on two separate grounds. First, it concluded that Washington sought to use Rule 60(b) to “circumvent the ‘mandatory and jurisdictional’ provisions of [the 30-day deadline for filing an appeal provided in Rule 4(a)(1) ].” Second, the court concluded that, even if Rule 60(b) gave the court authority to reenter judgment for purposes of rendering Washington’s appeal timely, Washington would not be entitled to relief under Rule 60(b)(1) or 60(b)(6). We respectfully disagree with both conclusions. Several circuit courts, including our own, have recognized that the ability to vacate and reenter judgment pursuant to Rule 60(b) is consistent with the jurisdictional nature of Rule 4(a)’s deadlines, and the circumstances of Washington’s case compel relief under Rule 60(b)(1) or, alternatively, Rule 60(b)(6).
The Supreme Court “has long held that the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’” Bowles v. Russell,
In Hill, the Supreme Court recognized that district court authority to vacate and reenter judgment includes the authority to do so for the purpose of restoring the opportunity to appeal. See id. at 523-24,
The dissent reads Hill as a narrow decision limited to parties who do not receive notice of judgment, and to filing deadlines established by rule, not statute. But Hill is not so limited. Hill did not question that the district court lacked authority to extend the appeal deadline, id. at 523,
By 1991, the Committee had amended the Federal Rules in three ways significant to Washington’s case.
Second, the Committee added Rule 4(a)(6), which is specific to cases in which parties miss Rule 4(a)(l)’s deadline due to lack of notice of the district court’s judgment. See Fed. R. App. P. 4(a)(6). This rule authorizes an “outer time limit” of 180 days to move for an extension of time to file an appeal. Fed. R. App. P. 4(a)(6) advisory committee’s note to 1991 amendment. A district court may not otherwise relieve parties from failing to file a timely appeal due solely to lack of notice of judgment. See Fed. R. Civ. P. 77(d) (“Lack of notice of the entry [of judgment] does not ... authorize the court to relieve ... a party for failing to appeal within the time allowed, except as allowed by [Rule] 4(a).”).
Third, the Committee expanded the grounds for relief under Rule 60(b) to encompass the “various kinds of relief from judgments which were permitted in the federal courts prior to the adoption” of the rules. Fed. R. Civ. P. 60 advisory committee’s note to 1946 amendment; see also Plaut v. Spendthrift Farm, Inc.,
After the addition of Rule 4(a)(6), we held that Rule 60(b) is not available to restore appeal rights in lack-of-notice cases. In re Stein,
This history shows that Congress acted in the years since Hill to narrow the circumstances under which late-filed appeals may be accepted, but despite several sets of amendments, changes to § 2107 and the Federal Rules have not abrogated district courts’ traditional authority to grant relief from judgment in cases — like Washington’s — where “a notice of appeal is filed late for reasons other than lack of notice.” Tanner v. Yukins,
One such case was Mackey v. Hoffman, where our own court followed the Supreme Court’s reasoning in Maples v. Thomas, — U.S. -,
The Seventh Circuit reached a similar conclusion in Ramirez v. United States,
Finally, notwithstanding Rule 4(a)(l)’s jurisdictional time limit, the Sixth Circuit held in Tanner that the district court had authority to vacate and reinstate its denial of a habeas petition pursuant to Rule 60(b).
The Sixth Circuit reversed. In doing so, the court recognized that Rule 60(b) dates back to the earliest promulgation of the Federal Rules, that the rule “is simply the recitation of pre-existing judicial power,” id. at 438 (quoting Plaut,
The dissent incorrectly states that only the Sixth Circuit is in accord with our decision. This misstates the law of other circuits. For example, the dissent relegates the Seventh Circuit’s recent Ramirez decision to a footnote, selecting instead the Seventh Circuit’s earlier case, Bell v. Eastman Kodak Co.,
The dissent also relies on the Third Circuit’s decision in West v. Keve,
The only circuits we are aware of to suggest such relief is never available are the Fifth and Eleventh Circuits. See Perez v. Stephens,
The State argues that Rule 60(b) is unavailable to assist Washington because its plain language authorizes relief from “judgment,” there is no infirmity in the judgment entered against Washington, and the problems in this case arose only after the judgment was entered. But Rule 60(b) does not require that the asserted grounds for relief exist before judgment is entered, and Rule 60(b)’s history and use make clear that it is not so limited. See, e.g., Fed. R. Civ. P. 60 advisory committee’s note to 1946 amendment (noting Rule 60(b) encompasses grounds for relief that existed before the rule’s adoption); see also Tanner,
The State also argues that we lack jurisdiction to hear Washington’s appeal because, in 28 U.S.C. § 2107(c), Congress specifically limited the amount of time by which district courts can extend the period for filing NOAs. The State and the dissent rely heavily on Bowles v. Russell,
We, are not persuaded that Bowles dictates the outcome of Washington’s appeal. Bowles did not address Rule 60(b) and did
Justice Blackmun wrote separately to concur in the judgment, joined by Justice Rehnquist. The concurrence explained that if the state had not “disavowed any reliance on Rule 60(b),” its motion likely could have been considered a motion under Rule 60(b)(1) or 60(b)(6). See id. at 274,
The core principle from Bowles and Browder — that federal courts lack equitable authority to extend Rule 4(a)’s jurisdictional deadlines — is the same principle recognized in Hill. See Hill,
For decades, courts have sparingly but consistently exercised their authority under Rule 60(b) to restore appeal rights. Neither Congress nor the Supreme Court has seen fit to limit this authority except in lack-of-notice cases.
B. Washington is entitled to relief under Rule 60(b)(1).
The district court ruled that Washington’s case did not warrant relief under Rule 60(b)(1) because he did “not demonstrate[ ] that he acted diligently in diseov-
Rule 60(b)(1) authorizes relief from judgment for “mistake, inadvertence, surprise, or excusable neglect.” On appeal, Washington relies on mistake and excusable neglect. In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership,
In cases decided before Rule 4(a)(6) was adopted, we required parties to show diligence before invoking Rule 60(b)(1) for the purpose of restoring the opportunity to appeal. See Rodgers v. Watt,
Before applying the Pioneer test, we note that while Washington’s initial calendaring error deprived him of the right to appeal within Rule 4(a)(l)’s time limit, it was the separate failure to realize that his appeal was late — and that he needed to seek a Rule 4(a)(5) extension — that ultimately caused Washington’s appeal to be dismissed. The district court recognized this; its order denying Washington’s motion for Rule 60(b) relief focused on Washington’s failure to discover his calendaring error. The court implicitly ruled that the failure to catch the first error in time to seek a Rule 4(a)(5) extension was not excusable neglect. Under the circumstances of this case, application of the Pioneer test compels a different outcome.
The first Pioneer factor favors relief. The State has not argued that it would be prejudiced if Washington’s habeas appeal is heard on the merits. Nor could it; the State has been on notice of Washington’s intent to appeal since one business day after the initial Rule 4(a)(5) deadline. Second, the length of the delay and its potential impact on the proceedings also favors granting relief: even considering the time required to resolve the Rule 60(b) motion, reentering judgment so that Washington’s appeal could move forward would have added only an insignificant amount of time in the context of this case. Third, the reason for the initial late filing is uncontested. Washington’s lawyers simply miscalculated the date the NOA was due and calendared
As for the district court’s concern that Washington’s lawyers were not diligent in recognizing their mistake, even daily monitoring of the docket would not have revealed that Washington’s NOA was late. Washington filed his NOA and request for a COA on July 11, 2005. No other entries appeared on the district court docket until the district court’s September 30 ruling on Washington’s motion for a COA. We do not require lawyers to spontaneously recalculate Rule 4(a)’s filing deadlines after they file a NOA when there is no suggestion from the court or the docket that the NOA was late. Rule 4 itself does not demand perfection — its drafters created a grace period in Rule 4(a)(5) precisely because mistakes happen. Washington’s lawyers are responsible for the initial late filing, but we cannot say they lacked diligence for failing to detect their late filing in time to seek an extension. The district court abused its discretion in concluding otherwise.
Granting Washington relief would have had only a negligible effect on the proceedings, but denying relief eliminated any federal appellate review of the habeas petition in this capital case. This tremendous disparity, in combination with consideration of the Pioneer factors, amply justified relief from judgment under Rule 60(b)(1).
C. In the Alternative, Washington is entitled to relief under Rule 60(b)(6).
If relief from judgment is not available under Rule 60(b)(1) — (5), Rule 60(b)(6) authorizes the district court to grant relief from judgment for “any other reason that justifies relief.” To justify relief under Rule 60(b)(6), a party must show external “ ‘extraordinary circumstances’ suggesting that the party is faultless in the delay.” Pioneer,
Our review of the record in this case persuades us that external circumstances did prevent Washington from discovering that his appeal was late, and from seeking an extension of time before Rule 4(a)(5)’s grace period expired. The dissent does not acknowledge it, but the record is unique in its clarity on this point.
These two rules served different functions in a coordinated scheme: Rule 22(b) facilitated the administrative transfer of habeas cases from the district court to the appellate court. Forwarded together, the NOA and COA gave the appellate clerk notice of the transfer of jurisdiction and of the issues presented for appeal. See generally 28 U.S.C. § 2253; Fed. R. App. P. 4. Rule 3(d) served an entirely different purpose. It was intended to give the court of appeals “increased practical control over the early steps in the appeal.” Fed. R. App. P. 3(d) advisory committee’s note to 1979 amendment.
The dissent questions how it could be that the rules may have required the district clerk to forward the NOA twice in situations like this one, where there was a delay between the entry of judgment and a ruling on the motion for a COA. This requirement, the dissent claims, “makes no sense.” But it makes perfect sense. It was the district court’s entry of judgment, not its ruling on a COA, that started the clock on Rule 4(a)’s deadlines. See Fed. R. App.. P. 4(a)(1)(A). Once the clock began ticking, Rule 3(d)’s “prompt” requirement ensured the appellate clerk received the NOA in time to identify, and permit the parties to cure, jurisdictional defects before Rule 4(a)(5)’s grace period expired.
The Second Circuit recognized as much in Yadav, one of the few published opinions addressing Rule 3(d). See
Washington’s appeal, like the Yadavs’, illustrates why Rule 3(d) directs that NOAs must be forwarded promptly. One week after receiving the NOA, the appellate clerk issued an order to show cause why Washington’s appeal should not be dismissed as untimely. Six days after that, Washington filed his Rule 60(b) motion. The record does not require that we speculate about what would have happened if Washington’s NOA had been forwarded without delay: if the NOA had been forwarded promptly, Washington would have received notice with two weeks remaining in Rule 4(a)(5)’s grace period, he would have had ample time to request an extension, and it cannot be doubted that he would have done so. We know this because it took just six days for Washington’s lawyers to respond once they received the order to show cause. The district court abused its discretion by not crediting the combination of the court’s failure to promptly forward the NOA to the appellate clerk and the time it took to rule on the COA as external factors that foreclosed Washington’s opportunity to seek an extension of time.
11. We Do Not Reach Washington’s Alternative Arguments.
Washington’s NOA and COA were docketed just after Rule 4(a)(5)’s thirty-day grace period began. Washington argues on appeal that his motion for a COA may be construed as a request for an extension of time under Rule 4(a)(5); if granted, this request would render his appeal timely. Well-reasoned case law supports the proposition that “[a]ny submission signed by a party that may fairly be read as a request to the district court to ... permit a late appeal should suffice” as a motion for additional time under Rule 4(a)(5). Campos v. LeFevre,
CONCLUSION
Having traced the history and interpretation of Rule 60(b), we conclude that when Congress adopted the Federal Rules, it entrusted the courts with the essential task of identifying the rare cases that warrant reentry of judgment for purposes of restoring the right to appeal. Subsequent amendments have not abrogated that authority and district courts have discharged this obligation with care. Of the thousands of judgments entered by district courts each year, only a handful have been found to warrant this type of relief. We conclude that Washington’s is one of them.
We reverse the district court’s denial of Washington’s motion for relief from judgment pursuant to Rule 60(b) in appeal No. 07-15536. On limited remand, the district court shall vacate and reenter its judgment denying Washington’s petition for writ of habeas corpus, nunc pro tunc, June 9, 2005. After the district court reenters its judgment, Washington’s appeal from the denial of his § 2254 petition may proceed in appeal No. 05-99009. We do not reach the remainder of Washington’s arguments. No new briefing is authorized by this decision.
REVERSED AND REMANDED.
Notes
. The dissent mischaracterizes this decision, and its implications. Our opinion does not rely on the district court's equitable authority or purport to extend the Rule 4(a)(5) deadline to conclude Washington is entitled to relief. It relies on the court’s express authority under Rule 60(b). Recognizing this narrow authority does not "put[] a hole right through” the Rule 4(a) appeal deadlines, as the dissent fears. Courts have used this authority, sparingly, for decades to restore the thirty-day window to file an appeal; a handful of cases have been found to warrant this type of relief. To reach its extravagant conclusions, the dissent repeats a few key errors: it misconstrues our own circuit’s case law, see In re Stein, 197 F.3d 421 (9th Cir. 1999), misstates case law from our sister circuits, and erroneously asserts that the majority relies solely on a missed filing deadline. The dissent also relies heavily on Bowles v. Russell,
. The Federal Rules and its amendments were authorized by the Rules Enabling Act, see ch. 651, 48 Stat. 1064 (1934) (codified as amended at 28 U.S.C. §§ 2071-2077 (2012)), under which Congress delegated to the Supreme Court its rule-making authority over the “practice and procedure” of federal courts, United States v. Jacobo Castillo,
. During the same time period, Congress enacted § 2107 and periodically amended it to track these rule amendments. See 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.3 (4th ed. 2016).
. See, e.g., Rodgers v. Watt,
. In Maples, the Court held that petitioner's state post-conviction attorneys’ abandonment, which caused petitioner to miss a state filing deadline, constituted an “extraordinary circumstance!] beyond his control” that lifted the state procedural bar to his federal petition. Maples,
. The dissent accuses us of sub silentio overruling In re Stein, but this is plainly wrong. We simply recognize, as our court previously recognized in Mackey and as we did in In re Stein itself, that In re Stein's holding is limited to lack-of-notice cases. See Mackey,
. The D.C. Circuit cited Bowles when it ruled that the district court lacked authority to provide Rule 60(b) relief "to circumvent the 180-day deadline of Appellate Rule 4(a)(6),” even in particularly compelling circumstances. See In re Sealed Case,
. The dissent argues that by relying on Rule 60(b), the majority impermissibly circumvents the § 2107 time limits governing appeals. But under the dissent’s view, many other types of Rule 60(b) motions would also “circumvent” those statutory limits. For example, a party may appeal a district court's judgment after the court rules on a timely post-judgment motion, such as a Rule 60(b) motion, even if the court waits months before ruling, and even if the court denies the motion. Such an appeal would be filed more than "30 days after entry of the judgment or order appealed from,” Fed. R. App. P. 4(a)(1)(A), and it would not be subject to an extension under Rule 4(a)(5) or 4(a)(6). Of course, Rule 4(a)(4) tolls the time to appeal in such cases, but Rule 4(a)(4) has the same statutory footing as Rule 60(b).
. We have affirmed orders granting Rule 4(a)(5) relief for negligent calendaring errors. See, e.g., Pincay,
. The State argues that the only external circumstances that are relevant to Rule
. The sequence of events that thwarted Washington's appeal cannot be repeated. The Committee amended Rule 22 in 2009 and the current rule directs that NOAs be forwarded even if no COA has issued: "[w]hen an applicant has filed a notice of appeal, the district clerk must transmit the record to the court of appeals; if the district judge has issued a [COA], the district clerk must include in this transmission the certificate.” Fed. R. App. P. 22 advisory committee's note to 2009 amendment (emphasis added). Thus, even if court staff mistakenly consult Rule 22 in isolation, it is plain that the NOA must be forwarded without waiting for the COA. Also in 2009, the Committee added a new rule that requires a district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254 Cases.
. Washington filed two Rule 60(b) motions with the district court after he learned his NOA was late. A three-judge panel of our court vacated the district court’s order denying Washington's first 60(b) motion because the case had not been remanded and the district court lacked jurisdiction. The panel then issued a limited remand to permit Washington to file a second Rule 60(b) motion. Neither motion argued that his motion for a
Dissenting Opinion
with whom CALLAHAN, BEA, IKUTA, and WATFORD, Circuit Judges, join, dissenting:
I take no pleasure in writing this dissent. Washington’s counsel filed his notice of appeal one day late. The office of the Arizona Public Defender is well known to this court and enjoys an outstanding reputation. Washington’s lead counsel has earned the respect of this court; he is an experienced and conscientious attorney, an expert in death penalty appeals and habe-as petitions. For anyone who has litigated and has known the anxiety of counting and then recounting the days towards deadlines, this is a nightmare.
For at least the last fourteen years, the Supreme Court has been telling us that we have failed to appreciate the difference between jurisdictional rules and claim-processing rules. See, e.g., Henderson ex rel. Henderson v. Shinseki,
Rules that are part of the process of adjudicating claims and rules that constrain our jurisdiction are very different kinds of rules. From the perspective of the parties, it may not make much difference if the result is an adverse judgment; after all, a party doesn’t usually care if the case is dismissed under Federal Rule of Civil Procedure 12(b)(1) or Rule 12(b)(6), because the effective result is the same. But the application of jurisdictional rules versus claim-processing rules is of great consequence to the federal courts. Claim-processing rules go to the way in which we will conduct our ordinary business. Congress has granted us power, through the Rules Enabling Act, to promulgate rules of procedure in our courts. See 28 U.S.C. § 2072(a). Such rules bring order to the process by which we resolve disputes. Such rules must be respected and enforced, but these rules, after all, are our rules and we feel a freer hand in the flexible application of those rules. Such rules may be waived or forfeited. See Union Pac. R.R. Co.,
Jurisdictional rules, by contrast, go to our “power to hear a case” and “can never be forfeited or waived.” Arbaugh,
shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be Party; — to Controversies between two or more States; — between Citizens of different states, — [and] between Citizens of the same State claiming Land under Grants of different States.
U.S. Const, art. Ill, § 2, cl. 1, as amended by amend. XI. This section contains the outer limits of our jurisdiction. See Ex Parte McCardle,
This is one of those hard cases.
I
. Petitioner Theodore Washington’s petition for a writ of habeas corpus was denied by the district court. He sought to appeal, but his notice of appeal was filed one business day late due to a paralegal’s error in calculating the filing deadline. By the time this court issued an order to show cause as to why the appeal should not be dismissed as untimely, Washington had missed the thirty-day grace period provided under Federal Rule of Appellate Procedure (FRAP) 4(a)(5) in which to file a motion for extension of time to file an appeal. Rule 4(a) codifies the jurisdictional time limits on the right to appeal imposed by Congress in 28 U.S.C. § 2107. The statute provides:
Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.
28 U.S.C. § 2107(a). In turn, the federal courts implemented this statute in FRAP 4(a): “In a civil case, except as provided in [this Rule], the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a).
Congress provided an exception to § 2107(a) in § 2107(c): “The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause.” 28 U.S.C.
Had Washington’s attorney realized his error earlier, he could have sought an extension of time from the district court under Rule 4(a)(5) and rectified the untimely filing. However, having missed the time in which to seek an extension, Washington filed a motion in the district court under Federal Rule of Civil Procedure 60(b), asking the district court to vacate and reenter its original judgment denying his habeas petition. The intended effect of this procedure was to restart the thirty-day period in which to timely file an appeal — Washington was not, in fact, seeking to amend or suspend any substantive part of the district court’s order denying his petition. The district court denied the motion, finding that Rule 60(b) could not be used solely for the purpose of restarting the time to file an appeal. I agree, and conclude that this court therefore lacks jurisdiction to entertain Washington’s untimely appeal. The U.S. Supreme Court was clear in Bowles v. Russell,
A
In Bowles, the Supreme Court held that the “timely filing of a notice of appeal in a civil case is a jurisdictional requirement,” because the Rule 4(a) filing requirements are statutorily based in 28 U.S.C. § 2107. Bowles,
The result in Bowles seemed particularly harsh given that the untimely filing period was expressly authorized by district court order. The Supreme Court still denied relief, noting that “[i]f rigorous rules like the one applied today are thought to be inequitable, Congress may authorize courts to promulgate rules that excuse compliance with the statutory time limits.” Id. But in the end, the Supreme Court “lack[ed] present authority to make the exception petitioner seeks.” Id. at 215,
Unlike Bowles, the case before us today deals with the thirty-day grace period under Rule 4(a)(5) rather than the 180-day time limit in Rule 4(a)(6). The reasoning of Bowles, however, clearly applies, because the thirty-day grace period provided in Rule 4(a)(5) also derives from 28 U.S.C.§ 2107(c). If equitable exceptions cannot be made to Rule 4(a)(6) because Rule 4(a)(6) is based in statute and therefore jurisdictional, I see no principled basis for distinguishing Rule 4(a)(5), and the majority offers none. Moreover, the Court in Bowles spoke broadly about the Rule 4(a) timing requirements and exceptions— it did not base its reasoning off any particular distinguishing feature of Rule 4(a)(6) such that the decision should not be read to apply to Rule 4(a)(5) as well. The lesson to be drawn from Bowles is that when Congress provides timely filing requirements, courts are meant to stick to them, even where the resulting consequences are harsh, as they admittedly are here.
B
The majority argues that its decision today does no violence to the principle announced in Bowles because its decision here rests on Federal Rule of Civil Procedure 60(b), and Rule 60(b) gives district courts the authority to relieve parties from judgment. Here, the majority concludes that this rule may be used not to amend or seek relief from a district court judgment, as the rule is intended to be used, but to seek relief only from the date of that judg
Unlike Rules 4(a)(5) and 4(a)(6), which are based in statute, Rule 60(b) is a court-promulgated rule that gives district courts the authority to provide relief from a final judgment if a motion is filed “within a reasonable time” and “not more than a year after the entry of the judgment.” Fed. R. Civ. P. 60(c)(1). Relief may be afforded, among other reasons, for mistake, excusable neglect, or extraordinary circumstances that justify relief. Fed. R. Civ. P. 60(b)(1), (6); Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship,
The majority writes that, “[f]or decades, courts have sparingly but consistently exercised their authority under Rule 60(b) to restore appeal rights.” Maj. Op. at 1097. It appears to base its entire decision on the principle that Rule 60(b) .gives district courts the general authority, based on historical practice, to revive lost appeal rights. The majority’s historical account of this use of Rule 60(b), however, leaves a
The majority interprets Hill to stand for the much broader proposition that courts may use Rule 60(b) in any circumstance that a court deems “extraordinary” in order to restart the time to file an appeal. Maj. Op. at 1097.
Hill is irrelevant for another reason: a similar exception has now been codified in § 2107. See 28 U.S.C. § 2107(c)(1) (providing relief for “a party entitled to notice of the entry of a judgment or order [who] did not receive such notice”). Section 2107 then limits the time within which relief can be granted to the party. If Hill once stood for anything relevant to this case, it has been superceded by statute. Indeed, Hill has also been superceded by rule. Federal Rule of Civil Procedure 77(d)(2) provides that “[l]aek of notice of the entry does not affect the time for appeal or relieve — or authorize the court to relieve — a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure 4(a).” This rule, which binds the district court, prohibits the powers exercised by the Court in Hill. The 1946 Advisory Notes to Rule 77 state that
Rule 77(d) has been amended to avoid such situations as the one arising in Hill v. Hawes.... [T]he effect of the decision in Hill v. Hawes is to give the district court power, in its discretion and without time limit, ... to vacate a judgment and reenter it for the purpose of reviving the right of appeal. This seriously affects the finality of judgments.
Fed. R. Civ. P. 77 Advisory Committee Notes.
What the majority has done is take Hill’s narrow exception and make it limitless. It takes the holding of Hill — which Congress has superceded by statute and which the federal courts have addressed by rule — and finds additional authority in that decision. In the process, it ignores § 2107, upends Rules 4 and 77, and overrules, sub silentio, our own prior, considered decisions. See In re Stein,
Nor have the lower courts, in the years since Hill was decided, interpreted that ease as broadly as the majority does today. The majority cites few cases in support of the proposition that Rule 60(b) may be used to circumvent appellate filing periods that do not involve situations in which a party failed to receive notice of judgment, save two from the Sixth Circuit, see Tanner v. Yukins,
Several courts, in fact, held before Bowles that Rule 60(b) may not be used to circumvent timely filing deadlines in non-lack-of-notice cases. The Third, Fifth, Seventh, and Eleventh Circuits have all discussed at length why relief is not available under any provision of Rule 60(b) in order to restart the time to file an appeal. See, e.g., Jackson v. Crosby,
As the Third Circuit pointed out in West,
The Fifth and Eleventh Circuits agreed for similar reasons. See Dunn,
The Eleventh and Seventh Circuits likewise touched on a similar issue, noting that the purpose of Rule 60(b) is to challenge an error made by the district court; therefore, using Rule 60(b) as a substitute for a timely appeal goes “outside the scope of the rule.” Bell,
Based on these cases alone, I would be reluctant to conclude that Rule 60(b) provides an avenue for relief in the situation we face here: not a lack-of-notice case, but a case in which the petitioner’s attorney negligently failed to timely file. The weight of pre-Bowles case law does not appear to support such an extension of this practice. In fact it suggests the opposite: that, contrary to the majority’s opinion, Rule 60(b) cannot be, and has not been, used in the manner the majority uses it in this case.
But in light of Bowles, I fail to see how a claim-processing rule like Rule 60(b) can legitimately be used to avoid a jurisdictional, statutory filing requirement, and the
The Fifth Circuit agrees. In Perez v. Stephens,
The only circuit to agree with the majority’s position today is the divided decision of the Sixth Circuit in Tanner v. Yukins,
The majority’s reliance on our decision in Mackey v. Hoffman is equally unpersuasive. Mackey is, at best, irrelevant to the circumstances of this case, and at worst, a deeply flawed decision that conflicts with the Supreme Court’s decision in Bowles. Mackey held that “attorney abandonment” constitutes an extraordinary circumstance under Rule 60(b)(6) justifying relief from judgment in order to extend the time to file an appeal. Mackey,
In finding that Rule 60(b) could be used to extend the time to file an appeal due to the attorney’s misconduct, the panel relied on the Supreme Court’s decision in Maples v. Thomas, which held that attorney abandonment could constitute sufficient cause to lift a state procedural bar to federal habeas review. — U.S. -,
Mackey, unlike Maples, implicated the jurisdictional problem addressed in Bowles, and that we face here today. Like the Sixth Circuit and like the majority here, the Mackey panel dealt with Bowles in the same facile manner, dismissing Bowles because Bowles dealt with the notice of judgment problem addressed by Rule 4(a)(6), again without considering the identical statutory basis behind Rule 4(a)(5). Mackey,
C
The majority concludes that Bowles has no bearing on this case because Bowles did not disturb the historical practice of using Rule 60(b) to extend the time to file an appeal. But the historical practice on which the majority relies is dubious at best; there is a slew of case law that weighs against the extension of this practice to the situation before us in this case. However, even if the majority is correct as to how Rule 60(b) was once used, Bowles makes crystal clear that such a practice is no longer an option. There is no difference between creating an “equitable exception” to the time limits in Rule 4(a) and using Rule 60(b) to “restore the opportunity to appeal,” Maj. Op. at 1092: both mechanisms extend the time to file an appeal past the time limit that has been set by Congress, time limits which the Supreme Court has concluded are jurisdictional. The majority’s attempt to suggest otherwise is utterly unconvincing. I am persuaded that Rule 60(b) simply does not provide relief from the untimely filing of a notice of appeal.
II
Lastly, I wish to remark on the argument made by the majority regarding an “error” made by the district court in this case in failing to promptly notify the circuit that Washington had filed a notice of appeal. At the time Washington filed his notice of appeal, Rule 3(d) of the FRAP required the district court to “promptly send a copy of the notice of appeal” to the circuit court. Fed. R. App. P. 3(d). However, Rule 3(d) did not specify a time within which the district court must act. The rule did not even identify from which point the district court’s “promptness” is to be measured — whether the notice must be “promptly” forwarded upon the district court’s receipt of it, or “promptly” upon occurrence of some other event. FRAP 22(b)(1), which has since been amended, required the district court to “send the certificate [of appealability] or statement [why a certificate should not issue] to the court of appeals with the notice of appeal and the file of the district court proceedings.” Fed. R. App. P. 22(b)(1) (1998). The district court clerk in this case waited until the district court had ruled on Washington’s certificate of appealability — a prerequisite to our jurisdiction — before sending the certificate of appealability, together with the notice of appeal and the district court record, to this court, as Rule 22(b) required.
The majority concludes that this was error, because the district court clerk did not “promptly” send the notice of appeal to the circuit as soon as the notice of appeal was filed, but rather waited until the certificate of appealability had issued. Moreover, the majority argues, this error preju
This is an extraordinary statement by the majority. I have no interest in opining on a version of the FRAP that no longer exists, but the majority’s argument on this issue is so strained that I am compelled to briefly address it. At the time, the district court was not required, as it is now, to issue or deny a certificate of appealability at the same time it issued its final order regarding the merits of the habeas petition. See Fed. R. App. P. 11(a). It was apparently common practice for our district courts to issue an order addressing the petition on the merits, and then separately address the certificate of appealability, sometimes weeks or months later. Under the majority’s new reading of FRAP 3, the district court clerk was required to forward the notice of appeal to the circuit court twice: first, when the notice of appeal was initially filed, in order to comply with Rule 3(d), and second, after the certificate pf appealability was issued, in order to comply with Rule 22(b)(1). This makes no sense. As the majority acknowledges, the notice of appeal and the certificate of ap-pealability, when forwarded together, give the circuit court clerk notice of the transfer of jurisdiction of the case. Maj. Op. at 1100; see Ortberg v. Moody,
Although the rules may have been inart-fully drafted, an alternative, more logical reading of the rules — one the majority does not even consider — is that the rules required the district court clerk to “promptly” forward the notice of appeal once the certificate of appealability issued, not once the notice of appeal was filed. Such a reading harmonizes the two seemingly contradictory directions provided in the FRAP. Rule 22 is specific to the habe-as context, while Rule 3 applies generally to notices of appeal in all cases. Presumably, in non-habeas cases — in cases where no certificate of appealability is required— the district court would “promptly” forward the notice of appeal to the circuit court as soon as the notice was filed. But in the habeas context, Rule 22 appears to give more specific instructions — to forward the notice of appeal with the certificate of appealability — thus requiring the court clerk to wait until the certificate of appeal-ability actually issued. Once the certificate
Even assuming, however, that the district court clerk did err in its reading of the rules, Bowles tells us that this does not matter. In Bowles, the late filing really was the district court’s fault, as the district court gave the petitioner an extra three days past the permitted extension period, and the petitioner relied on this extension. The Supreme Court held that this was irrelevant, given the jurisdictional nature of the time limits at issue. Bowles,
Ill
In short, the majority has offered no reasoned explanation for its decision to ignore the Supreme Court’s dictate in Bowles, the text of Rule 60(b) and Rule 4(a), or the reasoning of our sister circuits. It has utterly failed to explain how a claim-processing rule like Rule 60(b) can be used to undermine a jurisdictional, statutory filing requirement promulgated by Congress. And it ignores the consequences of its decision today: that in allowing relief under Rule 60(b) from an untimely appeal, the court puts a hole right through the Rule 4(a) timing requirements, now giving parties up to a year to attempt to pursue an appeal. That cannot be correct. And while I am sympathetic to the petitioner’s particular plight in this case, I note that federal courts regularly and completely preclude review in federal habeas cases— even capital cases — where a would-be ha-beas petitioner fails to timely file within the one-year statute of limitations. See, e.g., Lawrence v. Florida,
I respectfully dissent.
. Section 2107(c) also provides as follows:
In addition, if the district court finds—
(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and
(2) that no party would be prejudiced,
the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice,' whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.
28 U.S.C. § 2107(c).
. Those rules provide, in relevant part:
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion if filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.
(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, bút only if all the following conditions are satisfied: '
(A) the court finds that the moving party did not receive notice finder Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; ....
Fed. R. App. P. 4(a)(5), (6).
. The majority notes that Rule 4(a)(4) tolls the time to appeal where a Rule 60(b) motion has been filed, and suggests that Rule 60(b) is an embarrassment to my theory. Maj. Op. at 1099 n.8. Where a Rule 60(b) motion is used properly, it seeks to substantively amend the judgment, thus rendering the original judgment un-final. In that case, there is no longer anything to appeal from until the amended judgment is entered. Rule 4(a)(4) simply recognizes this, and thus presents no conflict with Rule 4(a)(5) or § 2107. This is also why a Rule 60(b) motion may be filed up to a year after the entry of judgment without running afoul of the time to appeal. But as I noted above, Washington in this case was not actually seeking to alter or amend the judgment. He just wanted more time to file an appeal.
. The majority states that I am "implied[ly] asserting] that the Federal Rules of Appellate Procedure have a superior statutory foundation than that of the Federal Rules of Civil Procedure.” Maj. Op. at 1105 n.2. No. What I have said, and it bears repeating, is that the time limits in FRAP 4(a)(5) have a specific statutory basis, 28 U.S.C. § 2107, while Rule 60(b) has no such statutory corollary. The majority seems to suggest that because both the FRAP and the Rules of Civil Procedure were promulgated under the Rules Enabling Act, see 28 U.S.C. § 2072, the two rules have the same statutory basis, and therefore Rule 60(b) can be used to circumvent Rule 4(a). Maj. Op. at 1105 n.2. The problem that the majority refuses to acknowledge is that its proposed use of Rule 60(b) circumvents not only Rule 4(a)(5), but § 2107, a separate statute. No court has ever held that the Rules Enabling Act gives courts the power to' promulgate rules to overturn other acts of Congress and expand the jurisdictional limits that Congress has set. •
. The majority concludes that this case involves “extraordinary” circumstances and assures us that this is one of a "narrow band of cases,” that our power will be used “sparingly,” and that it is a "rare case[],” one of a "handful” of the thousands of cases decided each year. Maj. Op. 1091, 1094, 1097, 1101— 02. There is really nothing extraordinary about attorneys miscalculating filing deadlines — even by one day. It happens all the time. See, e.g., Wilburn v. Robinson,
If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline. ... Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.
United States v. Locke,
. A bit of historical background is helpful in understanding the context here. At the time Hill was decided in 1944, the Court of Appeals of the District of Columbia — which would indeed become what we know as the D.C. Circuit — was not yet considered one of the federal circuit courts of appeal. In the Evarts Act of 1891, Congress separated the trial and appellate functions for most of the federal courts in the United States, creating our present system of federal district courts and the circuit courts of appeal. See Act of Mar. 3, 1891, ch. 517, 26 Stat. 826.’ It did not adopt this change for the courts in the District of Columbia, however, until two years later. With the Act of February 9, 1893, Congress kept the Supreme Court of the District of Columbia as a trial court, and created a new, three-member Court of Appeals of the District of Columbia to exercise appellate jurisdiction over the trial court. Act of Feb. 9, 1893, ch. 74, § 7, 27 Stat. 434, 435-36. It did not become clear until 1933, however, that this trial court and the new three-judge Court of Appeals were even Article III courts, as opposed to Article I "legislative” courts. See O'Donoghue v. United States,
. The majority cites the Third Circuit's decision in Burkett v. Cunningham,
. Dunn and Jacl<son were both capital habeas cases. Dunn’s attorney filed his notice of appeal four days late. Dunn,
. The majority argues briefly that the Supreme Court’s decision in Browder v. Director, Department of Corrections,
. The Seventh Circuit recently followed the Mackey decision in Ramirez v. United States,
. In fact, the panel in this case remanded the case to the district court after Mackey was decided. to determine whether Washington had suffered attorney abandonment. The district court concluded that he had not. Washington has not challenged this finding in the current en banc proceedings.
. The majority, however, has identified no statute or rule requiring this court to provide notice — in the form of an order to show cause why the appeal should not be dismissed — that an appeal is untimely. Even if the majority’s reading of FRAP 3 and 22 were correct, the district court’s timing in forwarding the notice of appeal did not deprive Washington of any notice to which he was entitled. Nothing in the district court's actions "prevented” Washington’s counsel from filing a timely notice of appeal.
. See Lawrence,
. I note as well, that although the majority concludes the district court was wrong when it found that it did not have the power to use Rule 60(b) to reopen the time to file an appeal, rather than remanding to the district court to reconsider whether Rule 60(b) relief ís warranted in light of our new holding, the majority just concludes that it is. Thus we engage in a bit of self-help, expanding our own jurisdiction by concluding that the district court simply abused its discretion by not affording relief.
Dissenting Opinion
dissenting:
I join Judge Bybee’s dissent, but like him I take no pleasure in voting to dismiss Theodore Washington’s appeal. Dismissing the appeal because his lawyer' filed the notice one day late strikes me as a grave injustice in the circumstances of this case. We are nonetheless compelled to take that action because Bowles v. Russell,
To begin with, neither of the rationales offered by the Court to support the decision in Bowles is sound. The Court relied in part on the fact that Congress itself set the filing deadline for civil appeals in a statute, 28 U.S.C. § 2107, rather than delegating authority to the courts to set the deadline by court rule.
The other rationale for Bowles’ holding cannot support the decision standing alone. The Court relied on its long historical practice, reflected in cases dating back more than a century, of treating deadlines for filing appeals from one court to another as jurisdictional.
While Bowles left the Court’s law “incoherent” the day it was decided,
Bowles’ holding cannot be reconciled with the Court’s current view of what it means for a requirement to be jurisdictional. An appellate filing deadline does not define the classes of cases federal courts of appeals are competent to adjudicate; it merely sets a time limit on a procedural step necessary to move the litigation forward. The Court has observed on more •than one occasion that “time prescriptions, however emphatic, are not properly typed ‘jurisdictional.’” Arbaugh v. Y & H Corp.,
If the time limits set by § 2107 were analyzed under the approach employed in the Court’s most recent cases, they would undoubtedly be ranked as non-jurisdictional. Section 2107 contains no clear statement of Congress’ intention to make the filing deadline for civil appeals jurisdictional; the statute’s language is no more emphatic, and no more jurisdictional in tone, than any of the other filing deadlines that the Court has held to be non-jurisdictional. See Wong,
Nor does § 2107’s placement within the broader statutory scheme reflect an intention to make the time limits jurisdictional. Section 2107 appears in a part of Title 28 entitled “Procedure,” not in the part entitled “Jurisdiction and Venue” that contains
Legislative history, another tool that the Court has used in this area, see Wong,
Finally, appellate filing deadlines fit precisely within the definition of what the Court has called “claim-processing rules,” that is, “rules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson,
In sum, Bowles stands on shaky ground and merits reconsideration. Nevertheless, it controls here and, if faithfully applied, requires us to dismiss Washington’s appeal as untimely, even at the cost of ending Washington’s bid to obtain habeas relief from his death sentence on grounds similar to those that spared his co-defendant’s life.