Unpublished Disposition, 862 F.2d 318 (9th Cir. 1987)

MEMORANDUM^** 

Michael J. Provan, a Chapter 7 debtor, appeals the Bankruptcy Appellate Panel's (BAP) order affirming the bankruptcy court's denial of Provan's ex parte application for an order deeming his untimely notice of appeal to be timely filed. Provan contends that his notice of appeal should be deemed timely filed under the "unique circumstances" doctrine. We affirm.

Provan scheduled his interest in a pension fund as an exempt asset. Several creditors objected to the claim of exemption. The bankruptcy court denied Provan's claim of exemption. Provan timely filed a motion for reconsideration, which the bankruptcy court denied on May 13, 1986. Provan allegedly prepared and mailed a notice of appeal to the bankruptcy court on May 19, 1986; however, there is no record that a notice of appeal was ever received or filed by the bankruptcy court. Provan mailed a designation of record to the court on May 28, 1986. On June 10, 1986, the court mailed Provan a file-stamped copy of his designation of record by return mail. Appellees served Provan on June 4, 1986, with their designation of additional items to be included in the record on appeal. On June 16, 1986, the bankruptcy court clerk's office informed Provan that a notice of appeal had not been filed.

On June 24, 1986, Provan filed an ex-parte application in the bankruptcy court for an order deeming notice of appeal to be timely filed.¹  On July 8, 1986, the bankruptcy court denied the application because Provan had failed to file the notice of appeal within ten days of the bankruptcy court's May 13, 1986 order and therefore the court lacked jurisdiction.

Provan timely appealed the bankruptcy court's order to the BAP, arguing that his untimely filing of the notice of appeal was excusable under the "unique circumstances" doctrine. On June 15, 1987, the BAP affirmed the bankruptcy court's order, finding that no "unique circumstances" justified Provan's untimely filing of his notice of appeal.²  Provan timely appeals.

Provan contends that "unique circumstances" justify his untimely notice of appeal. Specifically, he contends that he was "lured" into believing the notice of appeal was timely filed because the bankruptcy clerk mailed him a file-stamped copy of his designation of record on appeal, opposing counsel served him with its designation of additional items, and the bankruptcy court's clerk did not warn him that he had not filed a notice of appeal. This contention lacks merit.

Pursuant to Bankruptcy Rule 8002(a), a notice of appeal must be filed "within 10 days of the date of the entry of the judgment or order, or decree appealed from." "Timely filing requirements for appeals are ordinarily mandatory and jurisdictional." United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1267 (9th Cir. 1985). Under the "unique circumstances" doctrine, however, an appellate tribunal may have jurisdiction to hear an appeal that was not filed within the prescribed time limits. See Barry v. Bowen, 825 F.2d 1324, 1329 (9th Cir. 1987) ("unique circumstances" doctrine applied to an appeal from the district court). In re McAuley (McAuley v. Orange Coast Thrift & Loan Ass'n), 66 B.R. 696, 700 (9th Cir. BAP 1986) (BAP applied the "unique circumstances" doctrine to an appeal from the bankruptcy court).

The "unique circumstances" doctrine applies where the "court itself suggests that the time for appeal has been extended or tolled, and a party acts in reasonable reliance upon that suggestion." Barry v. Bowen, 825 F.2d at 1329 (emphasis added). To establish reasonable reliance, the period for timely filing must not have expired at the time of the district court's action. Id.

Here, the unique circumstances doctrine does not apply. A party has an independent duty to keep informed of the progress of his case. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1412 (9th Cir. 1986). The mere fact that the bankruptcy clerk filed documents submitted by the parties and failed to timely warn him that he had failed to file a notice of appeal does not constitute affirmative judicial action suggesting that the time to file an appeal has been extended or tolled. Cf. Alaska, 799 F.2d at 1411 (no unique circumstances warranting an extension of time to file notice of appeal where clerk fails to inform counsel of the entry of final judgment). In addition, Provan's counsel admitted in a declaration he submitted to the bankruptcy court that he may have been responsible for the untimely filing of the notice of appeal.

Because Provan's notice of appeal was untimely and there were no "unique circumstances," the BAP properly affirmed the bankruptcy court's denial of Provan's ex parte application for an order deeming notice of appeal to be timely filed.

The judgment is AFFIRMED.