Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1987)

Jean ELLIOTT; Brenda J. Poole; Diane G. Warner; Larry A.Pierce; Julia Forsberg, Plaintiffs-Appellees,v.PIERCE COUNTY DISTRICT COURT PROBATION OFFICE; a Washingtoncorporation; Rudolph J. Tollefson, Judge, Presiding Judgein Pierce County District Court No. One; Elaine M. McNally,Director of Pierce County District Court Probation Office,in her official capacity and as an individual, and as partof the marital community with Terry Schmid; et al.,Defendants-Appellants,

Nos. 88-3523, 88-3524.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 1989.Decided Feb. 16, 1990.

Before CANBY, WIGGINS and FERNANDEZ, Circuit Judges.


Appellants appeal the order of the district court denying an extension of time to file an appeal pursuant to Fed. R. App. P. 4(a) (5). Appellants seek reversal of that order and leave to appeal a judgment against them for money damages and equitable relief.

Appellee probation officers sued appellant Pierce County District Court Probation Office; Elaine McNally, Supervisor of that office; and Judge Rudolph J. Tollefson, a judge of the Pierce County District Court, pursuant to 42 U.S.C. § 1983 for unfair disciplinary practices and wrongful termination. The district court ruled in favor of appellee probation officers and entered a damage judgment in the amount of $460,436 on December 15, 1986.

On December 24, 1986, appellants filed a notice of appeal from the December 15, 1986 judgment. On December 26, 1986, appellees filed a motion for equitable relief requesting reinstatement for two of the probation officers.

On March 19, 1987, a court of appeals conference attorney held a telephone prebriefing conference with both parties. During the telephone conference, the conference attorney questioned whether the motion for equitable relief made the appeals premature, citing two cases. Nevertheless, on March 24, 1987 the conference attorney ordered appellants to file a status report in 60 days, and on May 13, 1987 ordered the appellants' trial counsel to complete the trial transcript.

On September 10, 1987, the district court continued to exercise its jurisdiction by granting in part appellees' motion for equitable relief. On November 9, 1987, appellants filed a timely motion seeking an extension of time to file a second notice of appeal under Fed. R. App. P. 4(a) (5). The district court denied that motion on December 4, 1987. Appellants timely filed notices of appeal from that order.

This court reviews a grant or denial of an extension of time to file a notice of appeal under the abuse of discretion standard. National Industries v. Republic National Life Ins. Co., 677 F.2d 1258, 1264 (9th Cir. 1982).

Appellants failed to file a timely notice of appeal pursuant to Rule 4(a) (4). Appellants' December 24, 1986 notice of appeal would have satisfied Rule 4(a) (1) but for appellees' December 26, 1986 motion for equitable relief. When appellees filed that motion, Rule 4(a) (4) operated to require appellants to file a new notice of appeal to preserve the timeliness of their appeal.

Appellants contend that the district court abused its discretion in denying them an extension of time to file a new notice of appeal. In order for the district court to have abused its discretion in denying an extension of time to file, appellants must first establish "excusable neglect" or "good cause." Fed. R. App. P. 4(a) (5).

Appellants have failed to do so. Appellants have alleged that the district court abused its discretion in denying an extension of time because: 1) Rule 4(a) (4) is unclear; 2) the appellees' motion for, and memorandum in support of, equitable relief failed to identify itself as a Rule 59(e) motion and thereby misled them; 3) the district court's grant of the motion for equitable relief misled them; and 4) this court failed to dismiss the untimely appeal on its own motion and thereby misled them.

Scrutiny of appellants' contentions reveal that appellants have only established their own inattention, mistakes and ignorance of the relevant law. The Supreme Court has explicitly explained the effect of a Rule 59(e) motion on Rule 4(a) (4). See Browder v. Director of the Illinois Department of Corrections, 434 U.S. 257, 264-65 (1978). Most significantly, appellants should have recognized the notice of appeal problem at several junctures. Contrary to appellants' contentions, the memorandum in support of appellees' motion for equitable relief clearly states that the court may consider it as a motion to amend or alter the judgment. Likewise, the district court's order granting the motion for equitable relief states that it may be considered as a Rule 59(e) motion. Lastly, although appellants are correct that this court did not originally dismiss the appellants appeal as untimely, a conference attorney of this court explicitly brought to appellants' attention the possibility of a defect in their notice of appeal, citing two cases. Failure of the court of appeals to give notice is not a ground, by itself, for finding excusable neglect. Zurich Ins. Co. v. Wheeler, 838 F.2d 338, 340 (9th Cir. 1988).

Nor does the request by the court of appeals conference attorney to file a status report or complete the trial transcript bring this case within the narrow "unique circumstances" doctrine which also excuses a late-filed notice of appeal. See United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1268 (9th Cir. 1985). To come within the "unique circumstances" doctrine, appellants must show that during the time appellants were required to have filed a notice of appeal, appellants reasonably relied on some judicial action that indicated that appellants' appeal would be timely. Id. We reject appellants' claim that they reasonably relied on judicial action of this court for failure to file a timely notice of appeal when this court explicitly indicated a notice of appeal problem to them.

The judgment of the district court is AFFIRMED.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3