UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40630
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOE REN MOON,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-95-CV-99)
October 8, 1997
Before GARWOOD, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:*
Joe Ren Moon appeals the district court’s denial of his Motion
Requesting Reentering of Judgment. Finding no abuse of discretion
in the trial court’s denial of that motion, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
In September 1993, Moon was convicted of being a felon in
possession of a firearm, and was sentenced to a period of seventy
months incarceration. Moon did not appeal his conviction or his
sentence.
Seventeen months later, in February 1995, Moon secured new
counsel, and filed a post-conviction motion seeking relief under 28
U.S.C. § 2255. The government responded to Moon’s motion, and the
motion was referred to a magistrate judge. On July 12, 1995, the
magistrate judge filed a report and recommendation that Moon’s
post-conviction motion be denied. Moon responded with timely
objections.
On March 14, 1996, Moon filed a Request for Clarification of
Record, which asked the district court to update him with regard to
the status of the case. Shortly thereafter, on March 19, 1996, the
district court entered an order denying Moon’s § 2255 motion for
relief from the criminal judgment against him. The docket sheet
reflects that copies of the March 19 order and judgment denying
Moon’s § 2255 motion were mailed to both Moon and his counsel.
Moon’s personal copy was later returned undelivered. In addition,
Moon’s counsel maintains that he did not receive the copy mailed to
him at that time.
On May 16, 1996, Moon filed a Motion to Expedite and a
separate Motion for Medical Furlough. The basis of those motions
2
was that Moon needed to be released so that he could provide solace
to his fiancé, who had become suicidal in his absence.
On May 20, 1996, having received Moon’s undelivered copy of
the March 19 judgment from the post office, the district court sent
duplicate copies of the March 19 order and judgment to Moon and his
counsel. Moon contends that this notice was first received by his
counsel on May 24, 1996. On May 28, 1996, Moon filed a Motion
Requesting Reentering of Judgment, claiming that he did not receive
notice of the March 19 judgment until after the time allowed for
appeal. This motion to reenter judgment is not verified and there
is nothing in the record which supports his allegation that his
counsel did not receive notice.
Moon filed an untimely appeal from the March 19 judgment on
June 6, 1996. This Court dismissed that appeal in August 1996.
United States v. Moon, No. 96-40578 (5th Cir. Aug. 6, 1996). The
disposition of Moon’s June 6 appeal was made expressly without
prejudice, however, as to this separate appeal from the district
court’s denial of Moon’s Motion Requesting Reentering of Judgment.
On June 11, 1996, the district court entered an order
summarily denying Moon’s Motion Requesting Reentering of Judgment
as being “without good cause.” Moon filed a timely notice of
appeal from the June 11 order, and this appeal ensued.
DISCUSSION
3
Moon’s appeal from the district court’s March 19 judgment
needed to be filed no later than May 19, 1996. FED. R. APP. P.
4(a). Moon’s request that the district court reenter the identical
judgment with a later date would have allowed Moon an additional
sixty days to appeal. Moon’s sole argument in favor of his motion
was that the clerk did not serve notice of the March 19 judgment
until May 24, 1997, which was seven days after the time allowed for
the filing of an appeal.
Avoiding the Judgment - Rule 60(b)
Moon’s Motion Requesting Reentering of Judgment did not
provide any citations and did not direct the district court to any
rules of civil or appellate procedure that would authorize the
relief requested. Because Moon’s motion sought to completely avoid
the district court’s March 19 judgment, it is most fairly
characterized as requesting relief under Federal Rule of Civil
Procedure 60(b). The law of our Circuit is well-settled that
Rule 60(b) does not vest unfettered discretion in the district
court to extend the time for filing an appeal. See Lancaster v.
Presley, 35 F.3d 229, 231-32 (5th Cir. 1994); Jones v. W.J. Servs.
Inc., 970 F.2d 36, 37-38 (5th Cir. 1992); Wilson v. Atwood Group,
725 F.2d 255 (5th Cir. 1984). Specifically, neither Rule 60(b) nor
Moon’s representation that he did not receive timely notice of the
judgment authorized the district court to restart the appellate
4
time clock, thereby affording Moon an additional sixty days to
appeal the March 19 judgment.
Enlarging the Time for Appeal - Rule 4(a)(6)
Moon argues on appeal that the district court could have
enlarged the time for appeal by applying Federal Rule of Appellate
Procedure 4(a)(6). Federal Rule of Civil Procedure 77(d) and
Federal Rule of Appellate Procedure 4(a) define the scope of relief
available to a party who claims he did not receive notice of the
judgment.2 Federal Rule of Civil Procedure 77(d) requires the
clerk of the district court to mail notice of the entry of any
order or judgment to all parties, and to make a note of the mailing
on the docket sheet. Rule 77(d) further provides:
Lack of notice of the entry by the clerk does not
affect the time to appeal or relieve or authorize
the court to relieve a party for failure to appeal
within the time allowed, except as permitted in
Rule 4(a) of the Federal Rules of Appellate
Procedure.
Federal Rule of Appellate Procedure 4(a)(6) provides:
The district court, if it finds (a) that a party
entitled to notice of the entry of a judgment or
order did not receive such notice from the clerk or
2
Federal Rule of Civil Procedure 77(d) is substantively
identical for all purposes raised by this appeal to Federal Rule of
Criminal Procedure 49(c). Rule 12 of the Rules Governing § 2255
Proceedings authorizes the Court, in its discretion, to follow the
Federal Rules of Civil Procedure in the adjudication of § 2255
matters. See Lancaster v. Presley, 35 F.3d 229, 232 n.2 (5th Cir.
1994) (noting effect of amendments to FED. R. CIV. P. 77(d) and FED.
R. APP. P. 4(a) in § 2254 appeal).
5
any party within 21 days of its entry and (b) that
no party would be prejudiced, may, upon motion
filed within 180 days of entry of the judgment or
order or within 7 days of 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.
Rule 4(a)(6) requires findings by the district court (1) that
Moon did not receive notice of the judgment within 21 days of
entry, and (2) that no party would be prejudiced by enlargement of
the time for appeal. We are deprived of those findings in this
case because neither Moon’s motion nor the relief requested therein
were framed in the terms contemplated by Rule 4(a)(6).
What we have instead is the contested assertion of Moon’s
counsel that notice was not received. That some notice was mailed
on March 19 is evidenced by the docket entry stating that the
parties were notified as well as the subsequent return of Moon’s
personal copy by the Post Office. Moreover, Moon’s counsel does
not dispute that he successfully received notice of other docket
entries from the district clerk.
Moon is not before this Court pro se. Rather, he is
represented, and was represented in the district court by counsel
who is admitted to practice in many of our federal district and
circuit courts. We are not, therefore, constrained to liberally
construe Moon’s motion to request relief under any unnamed avenue
that might allow him additional time to perfect an appeal.
Moreover, this case does not present the tangible logistics
problems associated with serving notice upon an incarcerated
6
prisoner.
Assuming that we were willing to construe Moon’s pleadings
liberally, and assuming that we are free to overlook the absence of
required findings, and assuming further that the district court
would find that Moon did not receive notice of the March 19
judgment until May 24, 1996, Moon’s May 28 Motion Requesting
Reentering of Judgment, which was filed only four days later, would
be timely as defined by Rule 4(a)(6). Nevertheless, our inquiry
does not end there.
The provisions of Federal Rule of Civil Procedure 77(d) and
Federal Rule of Appellate Procedure 4(a)(6) are permissive. That
is, compliance with the time requirements of Federal Rule of
Appellate Procedure 4(a)(6) permits, but does not require, the
district court to enlarge the time allowed for appeal. Jones, 970
F.2d at 39. Moreover, the district court’s denial of a Rule
4(a)(6) motion to enlarge the time for appeal is reviewed for abuse
of discretion only. Id. at 36, 39. “It is not enough that the
granting of relief might have been permissible, or even warranted
-- denial must have been so unwarranted as to constitute an abuse
of discretion.” Id. at 39 (internal quotations omitted).
Based upon the facts of this case, we cannot conclude that an
abuse of discretion occurred. Our Court has generally held that
the clerk’s failure to mail notice of the judgment, without more,
does not require the district court to enlarge the time for appeal.
7
Lancaster, 35 F.3d at 231-32; Wilson, 725 F.2d at 257.
Moon contends that we should deviate from that rule because he
made diligent efforts to monitor the case. On March 14, 1996, Moon
filed a Request for Clarification of Record. Having expedited a
ruling in the case, however, counsel did not follow up with any
independent attempt to discern the status of the case until fifty-
eight days later, when he filed a Motion to Expedite. That motion,
which was premised upon Moon’s need to be with his ailing fiancé,
merely encouraged prompt action by the district court, and likewise
cannot substitute for counsel’s own inquiry into the status of the
case. We cannot say that counsel’s single abandoned attempt to
discern the status of the case prior to judgment compels the
conclusion that the district court abused its discretion by
refusing to reenter its judgment or to enlarge the time for appeal.
We have reviewed the briefs and record on appeal and can find
no basis for holding that the district court abused its discretion
by not applying Rule 4(a)(6) to expand the time allowed for appeal.
Although Moon may have satisfied the technical time requirements of
Rule 4(a)(6), that proposition does not transform the district
court’s denial of permissive relief that was never requested into
an abuse of discretion.
Enlarging the Time for Appeal - Rule 4(a)(5)
Moon also contends that the district court’s denial of his
8
Motion Requesting Reentering of Judgment was an abuse of discretion
because he demonstrated excusable neglect for his failure to file
a timely appeal. Rule 4(a)(5) provides, in relevant part:
The 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). . . . No such
extension shall exceed 30 days past such prescribed
time or 10 days from the date of entry of the order
granting the motion, whichever occurs later.
Our opinions have repeatedly emphasized that the excusable
neglect standard in Rule 4(a)(5) must be strictly interpreted to
erect a high threshold. Latham v. Wells Fargo Bank, N.A., 987 F.2d
1199 (5th Cir. 1993) (“the excusable neglect standard is a strict
one”); Allied Steel v. City of Abilene, 909 F.2d 139 (5th Cir.
1990) (“A strict construction of Rule 4(a)(1) necessarily and
logically compels us to erect a high threshold in our determination
of `excusable neglect’ under Rule 4(a)(5).") (internal quotations
omitted)). To hold otherwise would extend, as a matter of the
district court’s discretion, the jurisdictional time limits allowed
for appeal by Rule 4(a). It is true that more recent decisions
have suggested a certain loosening of the standard for excusable
neglect. E.g., United States v. Montes, 65 F.3d 42 (5th Cir.
1995); United States v. Clark, 51 F.3d 42 (5th Cir. 1995) (both
relying upon Supreme Court’s adoption of a more permissive standard
in Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 113 S. Ct. 1489 (1993)). Those cases afford no relief
9
in this case, where Moon’s counsel offers no excuse for his failure
to monitor the course of this litigation and no excuse for his
failure to properly seek relief from that failure in the district
court under Rule 4(a)(5). See Latham, 987 F.2d at 1202-03
(rejecting party’s claim that the clerk’s failure to provide notice
justified a finding of excusable neglect under Rule 4(a)(5) and
holding that the party’s failure to rely instead upon Rule 4(a)(6)
was fatal to her claim for relief under Rule 4(a)(5)); see also
Pioneer, 113 S. Ct. at 1499-1500 (atypical placement of bar date in
notice of creditor’s meeting created “drastic ambiguity” that
excused counsel’s failure to file timely claim).
CONCLUSION
Moon’s Motion Requesting Reentering of Judgment petitioned the
district court to reenter the March 19 judgment, which would have
had the effect of allowing Moon an additional sixty days to appeal.
Neither Rule 60(b) nor Moon’s assertion that he did not receive
timely notice of the judgment authorized the district court to
grant that relief. To the extent that Moon’s Motion Requesting
Reentering of the Judgment can be liberally construed as requesting
relief within the parameters of Rule 4(a)(5) or 4(a)(6), the
district court’s denial of that relief in the particular
circumstances of this case was not an abuse of discretion. Our
conclusion that the district court did not abuse its discretion is
10
driven in large part by Moon’s failure to frame his motion and
request for relief in a manner consistent with that rule. Moon’s
failure to present that argument to the district court deprives
this Court of the fact findings made predicate to the enlargement
of time under Federal Rule of Appellate Procedure 4(a). Similarly,
affording relief in this case would require the illogical
conclusion that district court abused its discretion by denying
permissive relief that was never requested in the district court.
For the foregoing reasons, the district court’s denial of
Moon’s Motion Requesting Reentering of Judgment is AFFIRMED.
11