IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-30508
_______________
MARY CAROLE HALICKI,
Plaintiff-Appellant,
VERSUS
LOUISIANA CASINO CRUISES, INC;
ARTHUR FRANK,
Defendants,
LOUISIANA CASINO CRUISES, INC.,
d/b/a Casino Rouge Carnival Corporation,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________
September 1, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Mary Halicki appeals adverse rulings in her lawsuit for
employment discrimination. We affirm.
I.
Halicki worked for defendant Louisiana Casino Cruises, Inc.,
doing business as Casino Rouge, and was terminated. She sued under
title VII, claiming that her termination was the result of sex
discrimination.
The district court granted Casino Rouge's motion for summary
judgment, and entered final judgment on March 5, 1997. Under FED.
R. APP. P. 4(a)(1), Halicki had thirty days therefrom in which to
file notice of appeal.1 She counted on filing a timely motion
under FED. R. CIV. P. 59(e), however, which would have the effect of
suspending the thirty-day period. See FED. R. APP. P. 4(a)(4)(C).
Halicki's counsel claims that because he received notice of
the final judgment by mail, he thought the three-day mail service
provisions of FED. R. CIV. P. 6(e) applied to enlarge the ten days
he otherwise would have from the entry of final judgment to file a
rule 59(e) motion. Apparently unaware that the plain language of
the rules, well-settled hornbook law, and every other circuit to
address the issue had rejected the applicability of rule 6(e) to
rule 59(e), the attorney waited until the tenth day to mail the
rule 59(e) motion, causing it to arrive at the district court two
days late.
Casino Rouge, in its opposition to the rule 59(e) motion,
objected to its untimeliness. Halicki moved for enlargement of
time for filing a notice of appeal under FED. R. APP. P. 4(a)(5)
1
“A timely notice of appeal is necessary to the exercise of appellate
jurisdiction.” United States v. Cooper, 135 F.3d 960, 961 (5th Cir. 1998)
(citing United States v. Robinson, 361 U.S. 220, 224 (1960)).
2
because of “excusable neglect” in misconstruing rule 6(e); for, if
her rule 59(e) motion was untimely, the thirty-day notice of appeal
clock did not toll, and her time to appeal had expired. See
Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir. Unit A 1980) (per
curiam); FED. R. APP. P. 4(a)(4). Halicki also argued that even if
the rule 59(e) motion was untimely, the court should construe it as
a FED. R. CIV. P. 60(b) motion for relief from judgment. The
district court denied, and Halicki timely appealed, the denial of
her rule 59(e), rule 4(a)(5), and rule 60(b) motions.
II.
Rule 6(e), FED. R. CIV. P., provides: “Whenever a party has the
right or is required to do some act or take some proceedings within
a prescribed period after the service of a notice or other paper
upon the party and the notice or paper is served upon the party by
mail, 3 days shall be added to the prescribed period.” (Emphasis
added.) “Mere quotation of Rule 6(e) shows why it is inapplicable
to Rule 59(e) motions. The period for filing a Rule 59(e) motion
does notSSin the words of Rule 6(e)SSbegin with 'service of a
notice.'” Derrington-Bey v. District of Columbia Dep't of
Corrections, 39 F.3d 1224, 1225 (D.C. Cir. 1994).2 Rather, rule
2
All other circuits to have addressed this issue have found that rule 6(e)
does not apply to rule 59(e) motions. See Parker v. Board of Pub. Utils.,
77 F.3d 1289, 1291 (10th Cir. 1996) (holding the same); Adams v. Trustees of N.J.
Brewery Employees' Pension Trust Fund, 29 F.3d 863, 870 (3d Cir. 1994) (same);
Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972) (per curiam) (on petition
(continued...)
3
59(e) provides that “[a] motion to alter or amend the judgment
shall be served not later than 10 days after entry of the
judgment.” (Emphasis added.)
“Rule 6(e) does not apply to time periods that begin with the
filing in court of a judgment or an order. Thus, Rule 6(e) does
not apply to the 10-day period that runs from entry of judgment for
moving to alter or amend judgment pursuant to Rule 59(e).” 1 JAMES
W. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 6.05[3], at 6-35 (3d ed.
1998) (citations omitted). Under the plain language of the rules,
therefore, the district court correctly found that Halicki's rule
59(e) motion was untimely filed two days after the tenth day from
entry of judgment.
III.
Halicki argues that even if she misapplied rule 6(e), her
construction of the rules in this instanceSSan issue of first
impression in this circuitSSshould constitute “excusable neglect”
under rule 4(a)(5). Thus, she argues, the district court should
have granted her an extension to file a notice of appeal on the
underlying summary judgment.
Rule 4(a)(5) provides: “The district court, upon a showing of
excusable neglect or good cause, may extend the time for filing a
2
(...continued)
for rehearing); cf. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1113-14 (11th
Cir. 1993) (rejecting the application of rule 6(e) to a motion filed under
rule 59(b)).
4
notice of appeal upon motion filed not later than 30 days after the
expiration of the time prescribed by this Rule 4(a).” Accordingly,
we face three issues: (1) what the correct standard is for the
evaluation of “excusable neglect”; (2) whether the court employed
the correct standard in evaluating “excusable neglect”; and
(3) whether, if the court used the correct standard, it reached a
tenable result.
In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 507 U.S. 380, 395-97 (1993), the Court interpreted
“excusable neglect” in the context of the bankruptcy rules. It
stated:
Because Congress has provided no other guideposts for
determining what sorts of neglect will be considered
“excusable,” we conclude that the determination is at
bottom an equitable one, taking account all of the
relevant circumstances surrounding the party's omission.
These include . . . the danger of prejudice to the [non-
moving party], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.
Id. at 395.
We have adopted the Pioneer standard of “excusable neglect”
for purposes of FED. R. APP. P. 4(b), which governs criminal
matters. See United States v. Clark, 51 F.3d 42, 43-44 (5th Cir.
1995). Like rule 4(a)(5), rule 4(b) provides that “[u]pon a
showing of excusable neglect, the district court may . . . extend
the time for filing a notice of appeal for a period not to exceed
5
30 days from the expiration of the time otherwise prescribed by
this subdivision.”
In Clark, defense counsel, not unlike Halicki's attorney,
misconstrued the federal criminal rules and their applicability to
the amount of time the defendant had to file his notice of appeal.
See Clark, 51 F.3d at 42-43. The district court found that our
caselaw interpreting FED. R. APP. P. 4 prohibited such conduct from
ever constituting “excusable neglect.” See id. at 43. On appeal,
we disagreed, holding that the intervening decision in Pioneer
abrogated our previous caselaw stringently construing “excusable
neglect” in rule 4(b). We noted that under the new, more liberal
Pioneer standard, the district court couldSSin its discretionSSfind
that Clark's attorney's misreading of the rule constituted
“excusable neglect.” See id. at 44.
We specifically declined, however, to order the district
court, on remand, to find that counsel's conduct must constitute
“excusable neglect.” See id. (“[W]e do not hold that it would be
an abuse of discretion for the district court, on remand, to find
no excusable neglect on these facts.”). Indeed, we noted, from
Pioneer, that a misconstruction of the rulesSSespecially when their
language is plainSSwill rarely satisfy the “excusable neglect”
standard. See Pioneer, 507 U.S. at 392 (“[I]gnorance of the rules
[and] mistakes construing the rules do not usually constitute
'excusable' neglect.”); see also Clark, 51 F.3d at 44 (noting the
6
same in the context of that case).
We first must determine whether the reasoning in Clark
applies, as well, to rule 4(a)(5)SSthat is, to civil cases.
Although we could make distinctions between the civil and criminal
spheres, the argument for applying the Pioneer interpretation to
the civil context is fairly conclusive.
First, both rule 4(a)(5) and rule 4(b) use “excusable neglect”
as the standard for an extension of the time for filing a notice of
appeal. We are mindful of the “basic canon of statutory
construction that identical terms within an Act bear the same
meaning.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,
479 (1992) (citations omitted).
Second, the Pioneer Court's construction of “excusable
neglect” was apparently generally applicable, as the Court claimed
to be adopting “the commonly accepted meaning of the phrase.”
Pioneer, 507 U.S. at 391. For this reason, courts of appeals have
readily found the standard applicable to rule 4(a)(5), see, e.g.,
Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th
Cir. 1996), as well as to rule 4(b), see Clark, 51 F.3d at 43-44.
Finally, Pioneer was a civil bankruptcy proceeding, in which
the Court noted that the circuits “similarly have divided” over the
term of “excusable neglect” in the context of rule 4(a)(5). See
Pioneer, 507 U.S. at 387 n.3. We therefore read the Court's
7
opinion, by its own terms, to cover this issue.3
Proceeding under the Pioneer standard, we face the harder
question of how the district court made its “excusable neglect”
inquiry. That is, we must decide whether it used the Pioneer
standard, or instead employed the older, more stringent metric in
making its “excusable neglect” determination. If we conclude that
the court used the Pioneer standard, we must then decide whether it
did so correctly.
Halicki does not appear to have proffered any standard of
“excusable neglect” to the district court. Instead, she argued
there, as here, that Pioneer and Clark hold that misconstruction of
procedural rules necessarily should result in a finding of
“excusable neglect” where no prejudice results to the opposing
party. The court correctly disagreed with this proposition, see
Pioneer, 507 U.S. at 392, and without discussing its reasoning
further, denied the motion for extension of time to file notice of
appeal.
3
In extending Pioneer to rule 4(a)(5), we follow each of our sister
circuits to have addressed the issue. See Advanced Estimating Sys., Inc. v.
Riney, 77 F.3d 1322, 1323 (11th Cir. 1996) (per curiam); Thompson, 76 F.3d at 533
(“While in Pioneer the Court interpreted the phrase 'excusable neglect' as used
in a rule of bankruptcy procedure, it is evident that the Court intended its
definition of 'excusable neglect' to be equally applicable to Federal Rule of
Appellate Procedure 4(a)(5), as every appellate court to consider the
applicability of Pioneer to Rule 4(a)(5) and Rule 4(b) (criminal appeals) has
concluded.”); Fink v. Union Cent. Life Ins. Co., 65 F.3d 722, 724 (8th Cir.
1995); Reynolds v. Wagner, 55 F.3d 1426, 1429 (9th Cir. 1995); Virella-Nieves v.
Briggs & Stratton Corp., 53 F.3d 451, 454 n.3 (1st Cir. 1995); City of Chanute
v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994); Weinstock v.
Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir. 1994).
8
It appears, however, that the court considered all evidence
Halicki proffered in support of her claim and made an equitable
determination that an extension was unwarranted. Under Pioneer and
Clark, no more is required.4
Turning to the district court’s application of the Pioneer
standard to the facts of this case, we detect no error. The nature
of Halicki’s mistake weighs heavily against a finding of excusable
neglect.5
Although in Clark we left open the possibility that some
misinterpretations of the federal rules may qualify as excusable
neglect, such is the rare case indeed. Where, as here, the rule at
issue is unambiguous, a district court’s determination that the
neglect was inexcusable is virtually unassailable. Were it
otherwise, “almost every appellant’s lawyer would plead his own
inability to understand the law when he fails to comply with a
deadline.” Riney, 130 F.3d at 998. Accordingly, we cannot say
that the court abused its discretion in denying Halicki's motion to
4
Halicki argues that granting an extension would cause no prejudice to
Casino Rouge. Given this showing alone, however, the district court was
justified in finding that counsel's misconstruction of the rules was not
“excusable” neglect: “The word 'excusable' would be read out of the rule if
inexcusable neglect were transmuted into excusable neglect by a mere absence of
harm.” Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996).
5
See Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir.
1997) (mistaken interpretation or ignorance of FED. R. APP. P. 4(a)(4)(F));
Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996) (mistaken
interpretation or ignorance of FED. R. CIV. P. 6(b)); Kyle v. Campbell Soup Co.,
28 F.3d 928, 931-32 (9th Cir.) (mistaken interpretation of FED. R. CIV. P. 6(e)),
cert. denied, 513 U.S. 867 (1994); Weinstock v. Cleary, Gottlieb, Steen &
Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) (mistaken interpretation of FED. R.
APP. P. 4(a)(4)).
9
extend the notice of appeal clock under rule 4(a)(5).
IV.
The only issue before us, therefore, is whether the district
court properly disposed of Halicki's motion under rule 60(b) for
relief from judgment because of her newly “discovered” (or
proffered) evidence and because of the district court's alleged
mistake of law at summary judgment. “A 'timely' appeal from a
'ruling on a Rule 60(b) motion' may be taken under FED. R. APP.
P. 4(a)(5), although the court of appeals 'may review the ruling
only for abuse of discretion' and although the appeal 'does not
bring up the underlying judgment for review.'” Derrington-Bey,
39 F.3d at 1226 (quoting Browder v. Director, Dep't of Corrections,
434 U.S. 257, 263 n.7 (1978)).
“[T]he decision to grant or deny relief under Rule 60(b) lies
within the sound discretion of the district court and will be
reversed only for abuse of that discretion.” Edwards v. City of
Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc). “Furthermore,
we have repeatedly held that in order to prevail on a motion under
FED. R. CIV. P. 60(b)(2) based upon newly presented evidence, the
movant must demonstrate among other things that it exercised due
diligence in obtaining the information.” Williams v. Chater,
87 F.3d 702, 705 n.2 (5th Cir. 1996) (citing Government Fin. Servs.
One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767, 771 (5th
10
Cir. 1995); New Hampshire Ins. Co. v. Martech USA, Inc., 993 F.2d
1195, 1199 (5th Cir. 1993)).
Casino Rouge initially opposed Halicki's rule 60(b) motion
because it was originally filed as an untimely rule 59(e) motion.
Casino Rouge argues that Halicki was required to file a separate
rule 60(b) motion for the lower court to consider it as such; that
is, Casino Rouge argues that Halicki could not use her untimely
rule 59(e) motion as a motion under rule 60(b).
Casino Rouge's argument in this regard cuts against the grain
of the liberal Federal Rules of Civil Procedure. “As with untimely
Rule 52(b) motions, and untimely Rule 59(a) motions, a court may
treat an untimely Rule 59(e) motion to alter or amend the judgment
as if it were a Rule 60(b) motion if the grounds asserted in
support the Rule 59(e) motion would also support Rule 60(b)
relief.” 12 MOORE ET AL., supra, § 60.03[4], at 60-24.6 Here, the
grounds Halicki asserted in her rule 59(e) motionSSnew evidence and
mistakeSSwould also support a rule 60(b) motion.
Halicki contends that having properly considered the rule
60(b) motion, the district court was required to pay special
solicitude to her claim because she never had an “examination of
the full merits of the cause,” which, in her view, means a trial.
Indeed, “where denial of relief [under rule 60(b)] precludes
6
See Damiano v. FDIC, 104 F.3d 328, 332 n.4 (11th Cir. 1997) (noting the
same); Edwards, 78 F.3d at 995 (same); Helm v. Resolution Trust Corp., 43 F.3d 1163,
1166-67 (7th Cir. 1995) (same).
11
examination of the full merits of the cause, even a slight abuse of
discretion may justify reversal.” Seven Elves, Inc. v. Eskenazi,
635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981) (citation omitted).
Our caselaw allows for more leniency in opening up default
judgments, not those in which the court has had a chance to
evaluate the merits. See, e.g., Harrell v. DCS Equip. Leasing
Corp., 951 F.2d 1453, 1459 (5th Cir. 1991); see also 12 MOORE ET AL.,
supra, § 60.22[3][a], at 60-69 to 60-70. “Summary judgment is a
judgment on the merits; it has the same effect as if the case had
been tried by the party against whom judgment is rendered and
decided against him.” Daigle v. Opelousas Health Care, Inc.,
774 F.2d 1344, 1348 (5th Cir. 1985). Accordingly, we reject
Halicki's invitation to conduct a more searching review and instead
give our usual deference to the district court's denial of
rule 60(b) relief. See Crutcher v. Aetna Life Ins. Co., 746 F.2d
1076, 1082 (5th Cir. 1984) (reviewing a denial of a rule 60(b)
motion for abuse of discretion).
To the extent that the “newly discovered” evidence is grounds
for Halicki's rule 60(b) motion, Halicki has made no showing that
the evidence in the newly proffered affidavits was “newly
discovered,” in that it was not obtainable prior to summary
judgment had she exercised “due diligence.” Indeed, all but one of
the supplemental affidavits proffered with the rule 60(b) motion
were from the same witnesses who had offered affidavits before
12
summary judgment. The refusal to grant rule 60(b) relief on this
paltry showing of “newly discovered” evidence was certainly not an
abuse of the court's equitable powers to reopen the judgment.
Halicki's second theory for rule 60(b) reliefSSthat the
district court applied the wrong legal standard at summary
judgmentSSis not one that readily fits within one of the enumerated
grounds for relief outlined in the rule. Although it arguably
could fall within the scope of rule 60(b)(1), mistake,7 or
rule 60(b)(6), the “catch-all” provision, it should not, in this
case, because the groundSSthe district court's error of lawSSappears
to be no more than a mask for Halicki's forfeited appeal of the
court's summary judgment ruling.8
“Rule 60(b) is not a substitute for a timely appeal. Courts
should not grant relief when the moving party has not been diligent
in protecting its own rights by filing an appeal from an adverse
judgment.” 12 MOORE ET AL., supra, § 60.22[2], at 60-67.9 Even
assuming arguendo that the district court made an error of law at
7
A rule 60(b) challenge on this ground is usually thought to encompass “an
obvious error of law.” Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir.
1987). The alleged error in this case is not such a mistake.
8
See, e.g., Travelers Indem. Co. v. United States, 728 F.2d 699, 703 (5th
Cir. 1984) (“Although Travelers uses the war-weary rhetorical epithet of
‘manifest’ or ‘beyond question’ in depicting the claimed error, the briefs
demonstrate at best only that the question is arguable.”).
9
See Pryor v. United States Postal Serv., 769 F.2d 281, 288-89 (5th Cir.
1985) (noting that “[w]ere this Court to make an exception to finality of
judgment each time a hardship was visited upon the unfortunate client of a
negligent or inadvertent attorney, even though the result be disproportionate to
the deficiency, courts would be unable to ever adequately redraw that line again,
and meaningful finality of judgment would largely disappear”).
13
summary judgment, it had the discretion to deny Halicki's
rule 60(b) motion to prevent her end-run of the normal appellate
process for correcting legal error.
AFFIRMED.
14