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Consolidated Freightways Corp. v. Larson

filed: August 28, 1987.

CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, A DELAWARE CORP., APPELLEE
v.
LARSON, THOMAS D., INDIVIDUALLY AND IN HIS CAPACITY AS SECRETARY OF TRANS., DEPT. OF TRANSP. COMM. OF PENNA.; COCHRAN, JAY JR., INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER OF THE PENNA. STATE POLICE; ZIMMERMAN, LEROY S., INDIVIDUALLY AND IN HIS CAPACITY AS ATTORNEY GENERAL OF THE COMM. OF PENN.; THORNBURGH, RICHARD, INDIVIDUALLY AND IN HIS CAPACITY AS GOVERNOR OF THE COMM. OF PENNA., APPELLANTS



On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. No. 84-0222.

Author: Sarokin

BEFORE: WEIS and STAPLETON, Circuit Judges and SAROKIN, District Judge.

Opinion OF THE COURT

SAROKIN, District Judge

Appellants, the Pennsylvania Secretary of Transportation et al., represented by the Pennsylvania Office of the Attorney General, sought to appeal from a November 19, 1986 order of the district court enjoining enforcement of certain provisions of Pennsylvania law held to be inconsistent with, and preempted by, the federal Surface Transportation Assistance Act of 1982, 49, U.S.C. ยง 2301 et. seq.

Pursuant to Federal Rule of Appellate Procedure 4(a)(1), notice of appeal was due to be filed on or before December 19, 1986. On December 18, 1986, one day before the 30 day limit for filing expired, counsel prepared a notice of appeal. The notice properly identified the case, docket number and district judge but erroneously listed the district as Eastern rather than Middle District of Pennsylvania. As a result of this error, the notice was mailed to the Eastern District rather than being hand delivered that day to the Middle District Clerk's Office in Harrisburg, adjacent to the Attorney General's Office.*fn1

Notice arrived at the Eastern District on December 22, 1986. Upon detection of the error, the notice was immediately forwarded to the Middle District where it arrived on December 24, 1986, five days after the December 19, 1986 deadline.*fn2 The appeal was promptly docketed as No. 87-5018.

As the timely filing of an appeal is an issue of jurisdictional import, on January 14, 1987, the Clerk of this court notified counsel of the possible procedural defect resulting from the delay. It is undisputed that counsel for defendants was not aware of the error until this time. Seeking to cure the defect, counsel immediately applied to the district court for a five day extension of time in which to appeal so that the Notice, filed on December 24, 1986, could be deemed timely filed. Pursuant to Federal Rule of Appellate Procedure 4(a)(5), a party who files for an extension of the 30 day appeal period after that period has expired must demonstrate "excusable neglect" in order to receive an extension.

The district court denied plaintiff's application reasoning that a clerical error made by counsel or someone under counsel's control can never constitute "excusable neglect" within the meaning of 4(a)(5). Plaintiff filed this timely appeal, No. 87-5122, from the denial of its application. Proceedings in this appeal were expedited and proceedings in No. 87-5018 were stayed pending a decision here.

As set forth in Pedereaux v. Doe, 767 F.2d 50, 51 (3d Cir. 1985), our standard of review is mixed. Review of the district court's interpretation and application of Rule 4(a)(5) is plenary. The court's denial of the requested extension is limited to an abuse of discretion review. Finding that the district court erred as a matter of law in its rigid application of 4(a)(5), we now reverse.

II.

The issue before this court is whether the inadvertent misdirection of a notice of appeal, which results in untimely filing, constitutes excusable neglect within the meaning of Federal Rule of Appellate Procedure 4(a)(5).*fn3

The district court concluded that conduct under the control of counsel cannot come within the excusable neglect exception. The court began its analysis by recognizing, correctly, that the standard for determining excusable neglect is "a 'strict' one," and that excusable neglect applies only to "extraordinary cases where injustice would otherwise result." See Advisory Committee Notes to 1966 amendment to Federal Rule of Civil Procedure 73, the predecessor of Fed. R. App. P. 4(a). Believing that counsel's inadvertent misdirection could not constitute an "extraordinary circumstance" sufficient to establish excusable neglect, the district court denied the requested extension.

Relying heavily on the Ninth Circuit's opinion in State of Oregon v. Champion International Corp., 680 F.2d 1300 (9th Cir. 1982), the district court reasoned that "extending the excusable neglect exception to clerical errors of counsel or counsel's staff would be inconsistent with the Advisory Committee's intent to limit the exception to extraordinary cases and would thwart the Rule's purpose of promoting finality of judgments." Id. at 1301. In State of Oregon, appellant inadvertently mailed the notice of appeal to the state rather than the federal district court. The error caused the notice to arrive in federal court one day after the filing period. A two judge majority held ...


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