Jeffers v. Clinton

796 F. Supp. 1202, 1992 WL 200548

• Court: District Court, E.D. Arkansas
• Decided: August 13, 1992
• Docket: No. H-C-89-004
• Status: Published

Opinions

RICHARD S. ARNOLD, Chief Judge.

We have before us the defendants’ motion for an extension of time within which to file an amended notice of appeal. For the reasons given below, the motion is denied.

We filed our opinion and order awarding the plaintiffs their attorneys’ fees and expenses on October 24, 1991. 776 F.Supp. 465 (E.D.Ark.). The defendants incorrectly appealed from that order to the Supreme Court of the United States. On March 23, 1992, the Supreme Court vacated the judgment and remanded the case to us “with instructions to enter a fresh judgment from which an appeal may be taken to the United States Court of Appeals for the Eighth Circuit.” — U.S.-, 112 S.Ct. 1462, 117 L.Ed.2d 609. Pursuant to the Supreme Court’s order, we entered a new judgment on April 7, 1992.

On May 6, 1992, the defendants filed their timely notice of appeal. The notice of appeal identified the appellants as “Bill Clinton, et al.” After the Clerk’s office for the Court of Appeals received the notice of appeal, it contacted the defendant’s attorney and advised him that the notice was inadequate to perfect the appeal on behalf of all the defendants. In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the Supreme Court held that Federal Rule of Appellate Procedure 3(c) requires that each appellant be specifically named in the notice of appeal. Consequently, the designation “et al.” may be¹ inadequate to perfect an appeal on behalf of those parties whose names are not specifically listed on the notice of appeal.

The defendants’ possibly defective notice of appeal was timely filed. The time in which to file a notice of appeal, however, expired before the defendants realized that their notice might be defective. Consequently, pursuant to Federal Rule of Appellate Procedure 4(a)(5) and Local Rule 20, they filed a motion on June 5, 1992, asking us for a ten-day extension of time in which to file an amended notice of appeal which clearly complies with Torres.

Rule 4(a)(5) provides, in part, that “[t]he district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).” The defendants’ motion for an extension of time under Rule 4(a)(5) is timely because they filed it within sixty days of the entry of judgment. The issue, then, is whether they can demonstrate “good cause” or “excusable neglect” for their failure to file a timely and clearly proper notice of appeal.

The defendants argue that they are entitled to the lenient standard of “good cause.” The Notes of the Advisory Committee accompanying the 1979 amendment to the Rules indicate, however, that the “good cause” standard does not apply to requests for extensions of time filed after the initial thirty-day period has expired. The Notes state that

[w]hile [excusable neglect] was an appropriate standard in cases in which the motion is made after the time for filing the notice of appeal has run, and remains so, it has never fit exactly the situation in which the appellant seeks an extension before the expiration of the initial time. In such a ease, “good cause,” which is the standard that is applied in the granting of other extensions of time under Rule 26(b), seems more appropriate.

The Court of Appeals explicitly adopted this view in Bartunek v. Bubak, 941 F.2d 726 (8th Cir.1991). It held that “[t]he ‘good cause’ standard applies only to the first thirty-day period, during which a timely notice of appeal could still be filed; the more stringent ‘excusable neglect’ standard applies during the second thirty days.” Id. at 728 (citations omitted).

Defendants must demonstrate “excusable neglect” in order for the Court to grant the extension. They have not done so. The only reason defendants give for their failure to file a proper and timely notice of appeal is that “[p]rior to the Court Clerk’s call, defendants’ counsel was not aware of the Torres court’s procedural modification____” In Bartunek the Court indicated, in dictum, that excusable neglect includes “plausible misconstructions of the rules of procedure or applicable law, though not mere ignorance of them.” 941 F.2d at 730 n. 3 (citations omitted). Defendants’ counsel has done nothing more than allege ignorance of the law, though it is the kind of ignorance, and on a highly technical point at that, that any lawyer could have been guilty of.

An earlier opinion, Vogelsang v. Patterson Dental Co., 904 F.2d 427 (8th Cir. 1990), further defines excusable neglect.

In general, excusable neglect may be found where a party has failed to learn of an entry of judgment, or in extraordinary cases where injustice would otherwise result. The burden of demonstrating excusability lies with the party seeking the extension and excusability will not be found when the failure to timely file an appeal is caused by palpable oversight, administrative or clerical errors by the attorney or the attorney’s staff, [or] an attorney’s busy schedule____

904 F.2d at 431 (citations and quotations omitted). The defendants here have not presented facts indicating the kind of "extraordinary circumstances” envisioned by the Vogelsang Court. Again, they have alleged nothing more than “palpable oversight.”

The defendants have not demonstrated excusable neglect for their failure to file a timely and clearly proper notice of appeal. Their motion for an extension of time within which to file an amended notice of appeal is denied. Plaintiffs ask us to dismiss the appeal. This is not within our jurisdiction. Whether the initial notice was defective, and the legal effect of any insufficiency in it, are questions for the Court of Appeals to decide.

It is so ordered.

1 . We say "may be” because the sufficiency of the notice of appeal is a question for the Court of appeals, not us.