FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA ex rel.
PATRICIA HAIGHT and IN DEFENSE
OF ANIMALS,
Plaintiffs-Appellants, No. 07-16857
v. D.C. No.
CATHOLIC HEALTHCARE WEST; CV-01-02253-FJM
CATHOLIC HEALTHCARE WEST ORDER AND
ARIZONA; ST. JOSEPH’S AMENDED
HOSPITAL AND MEDICAL CENTER; OPINION
BARROW NEUROLOGICAL INSTITUTE;
and MICHAEL BERENS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
November 3, 2009—San Francisco, California
Filed February 4, 2010
Amended April 21, 2010
Before: Betty B. Fletcher, William C. Canby, Jr., and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
6007
6010 HAIGHT v. CATHOLIC HEALTHCARE WEST
COUNSEL
Jeremy L. Friedman, Law Office of Jeremy L. Friedman,
Oakland, California, for the plaintiffs-appellants.
Dale A. Danneman, Lawrence A. Kasten, and Brian J. Pol-
lock, Lewis and Roca LLP, Phoenix, Arizona, for defendants-
appellees.
ORDER
The opinion filed on February 4, 2010, slip opinion page
2057, and appearing at 594 F.3d 694, is amended as follows:
On slip opinion page 2063, line 2 of the last paragraph,
change the comma to a period after “ ‘inequitable.’ ”; on line
9, after “harsh consequences.’).” insert:
Notwithstanding the Supreme Court’s guidance,
Plaintiffs urge us to follow George v. Camacho, 119
F.3d 1393 (9th Cir. 1997) (en banc), in which we
refused to apply retroactively our decision to shorten
HAIGHT v. CATHOLIC HEALTHCARE WEST 6011
the time period for filing a notice of appeal from the
Northern Mariana Islands. But our premise in
George was that the Supreme Court’s admonition
that “ ‘a jurisdictional ruling may never be made
prospective only’ . . . has never been applied as
broadly and inflexibly as both its language and our
dissenting colleagues suggest.” Id. at 1397 (quoting
Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 379 (1981)). Eisenstein itself now represents
just such a broad and inflexible application of that
principle. We are bound, then, to follow the Supreme
Court’s clear directive to apply Eisenstein retroac-
tively, no matter how inequitable the result.
Also on line 9, start a new paragraph with “A claim that
this result violates due process is equally unavailing.”
On slip opinion page 2065, line 8 of the first full paragraph,
after “under Rule 4,” insert the following as a footnote:
When In re Hoag announced that Rule 4 did not
authorize such an action by the court of appeals,
Rule 26 did not contain the exception cross-
referencing Rule 4. In 1988, Rule 26(b) provided:
The court for good cause shown may
upon motion enlarge the time prescribed by
these rules or by its order for doing any act,
or may permit an act to be done after the
expiration of such time; but the court may
not enlarge the time for filing a notice of
appeal, a petition for allowance, or a peti-
tion for permission to appeal.
Rule 26 was amended in 1998. However, the 1998
amendments to Rule 26(b) were “intended to be sty-
listic only.” 28 U.S.C. app., Fed. R. App. P. 26 advi-
sory committee’s notes (1998 amendment); see also
6012 HAIGHT v. CATHOLIC HEALTHCARE WEST
Mitchell v. Burtvetterlein & Bushnell PC (In re
Stein), 197 F.3d 421, 424 n.7 (9th Cir. 2000) (noting
that the 1998 amendments to Federal Rule of Appel-
late Procedure 4(a)(5) were “strictly stylistic”). Thus,
the 1998 amendments did not abrogate In re Hoag.
Nor are the amendments irreconcilable with In re
Hoag. By its terms, Rule 26(b) still applies to “the
court.” The statement that “the court” may grant
extensions of time “as authorized by Rule 4” recog-
nizes the power of the district court to grant exten-
sions under Rule 4, but not beyond the limitations of
Rule 4. Thus, the phrase “as authorized by Rule 4”
is not surplusage, even though the court of appeals
has no power to grant extensions under Rule 4.
On slip opinion page 2066, last line, after the citation to
Pettibone, insert the following as a footnote:
Like In re Hoag, Pettibone survives the 1998
amendments to Rule 26(b).
With these amendments, the panel has voted to deny the
petition for rehearing. Judge Graber has voted to deny the
petition for rehearing en banc, and Judges B. Fletcher and
Canby have so recommended.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.
The petition for rehearing and petition for rehearing en
banc are DENIED. No further petitions for rehearing will be
entertained.
OPINION
GRABER, Circuit Judge:
Plaintiffs filed a notice of appeal in this qui tam action 51
days after the district court granted summary judgment in
HAIGHT v. CATHOLIC HEALTHCARE WEST 6013
favor of Defendants. We must dismiss this appeal for lack of
jurisdiction because Plaintiffs filed the notice of appeal more
than 30 days after the entry of judgment. Fed. R. App. P.
4(a)(1)(A). When the notice of appeal was filed, this appeal
was timely under then-controlling circuit law that gave Plain-
tiffs 60 days to file an appeal, but dismissal is now required
by an intervening Supreme Court decision ruling that the
allowable time is 30 days.
FACTUAL AND PROCEDURAL HISTORY
Defendant Michael Berens is a scientist who applied for
and received funding from the National Institutes of Health to
research brain cancer using beagle dogs. Plaintiffs Patricia
Haight and In Defense of Animals assert that Berens made
false and misleading statements in his grant application. They
allege that he failed to disclose data showing a high rate of
failure in preliminary trials, made false statements about the
extent of his success with the research, stated a goal for the
grant project that he did not believe could actually be accom-
plished, and misrepresented another researcher’s involvement
with the project. Consequently, Plaintiffs brought this qui tam
action against Defendants Berens, Barrow Neurological Insti-
tute, St. Joseph’s Hospital and Medical Center, Catholic
Healthcare West Arizona, and Catholic Healthcare West
under the False Claims Act, 31 U.S.C. § 3729. The United
States has a statutory right to intervene in such a suit, id.
§ 3730(b)(2), but declined to intervene in this one.
The first issue arising in this litigation was whether the
False Claims Act’s “public disclosure” jurisdictional bar, id.
§ 3703(e)(4), precluded the suit. In an earlier appeal, we held
that the suit was not barred by the fact that Plaintiffs had
obtained Berens’ grant application pursuant to a Freedom of
Information Act request. United States ex rel. Haight v. Cath-
olic Healthcare W., 445 F.3d 1147, 1152 (9th Cir. 2006). On
remand, the district court granted summary judgment in favor
6014 HAIGHT v. CATHOLIC HEALTHCARE WEST
of Defendants, ruling that Plaintiffs had failed to produce evi-
dence that the statements at issue were objectively false.
The district court entered judgment for Defendants on
August 14, 2007. Plaintiffs filed a notice of appeal 51 days
later, on October 4, 2007. We stayed the appeal pending
Supreme Court review of United States ex rel. Eisenstein v.
City of New York, 540 F.3d 94 (2d Cir. 2008). The Supreme
Court has issued its decision, 129 S. Ct. 2230 (2009), and we
now consider Defendants’ motion to dismiss this appeal as
untimely. We review de novo the existence of jurisdiction
over an appeal. Perez-Martin v. Ashcroft, 394 F.3d 752, 756
(9th Cir. 2005).
DISCUSSION
A. Untimely Notice of Appeal
[1] Under Federal Rule of Appellate Procedure 4(a)(1), a
party in a civil suit has 30 days from the entry of judgment
within which to file a notice of appeal, unless “the United
States or its officer or agency is a party.” If the United States
is a party, Rule 4(a)(1)(B) allows a 60-day period within
which to take an appeal. For purposes of Rule 4(a), we previ-
ously held that the United States is a “party” to a qui tam
action even if it declines to intervene. United States ex rel.
Haycock v. Hughes Aircraft Co., 98 F.3d 1100, 1102 (9th Cir.
1996). Thus, when the district court entered judgment for
Defendants, our circuit precedent gave the plaintiffs in a case
such as this one 60 days to file a notice of appeal.
[2] Relying on Haycock, Plaintiffs filed their notice of
appeal 51 days after the entry of judgment. At that time, we
would have deemed their appeal timely. But while this appeal
was pending, the Supreme Court held that, for the purposes of
the filing deadlines of Rule 4(a), the United States is not a
party to a qui tam action under the False Claims Act in which
it declines to intervene and plaintiffs in such cases have only
HAIGHT v. CATHOLIC HEALTHCARE WEST 6015
30 days to appeal. Eisenstein, 129 S. Ct. at 2236-37. We
therefore recognize that Eisenstein overruled our holding to
the contrary in Haycock.
[3] Under Eisenstein, Plaintiffs’ notice of appeal was
untimely when filed. The Supreme Court knew that Eisenstein
could affect pending appeals. Indeed, Plaintiffs in this case
filed an amicus brief with the Supreme Court asking that it
prohibit retroactive application of its decision in Eisenstein.
Brief for Patricia Haight and In Defense of Animals as Amici
Curiae Supporting Respondents, United States ex rel. Eisen-
stein v. City of New York, 129 S. Ct. 2230 (2009) (No. 08-
660). Despite acknowledging that its decision would have
“harsh consequences” for some plaintiffs and “unfairly punish
those who relied on the holdings of courts adopting the 60-
day limit in cases in which the United States was not a party,”
the Court expressly refused to limit its decision to prospective
application. Eisenstein, 129 S. Ct. at 2236 n.4. Those harsh
consequences are now concretely before us: Plaintiffs’ appeal
is untimely and must be dismissed.
[4] A timely notice of appeal is a jurisdictional prerequi-
site. Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264
(1978). Congress has set a statutory limit of 30 days on
appeals in cases to which the United States is not a party. 28
U.S.C. § 2107(a). A would-be appellant’s “failure to file his
notice of appeal in accordance with the statute therefore
deprive[s] the Court of Appeals of jurisdiction.” Bowles v.
Russell, 551 U.S. 205, 213 (2007). Because the notice of
appeal in this case was filed after the 30-day deadline, we lack
jurisdiction and this appeal must be dismissed. Id.; United
States v. Curry, 47 U.S. (6 How.) 106, 113 (1848).
[5] It is a serious understatement to call this result “inequi-
table.” Bowles, 551 U.S. at 214. Plaintiffs reasonably relied
on Ninth Circuit precedent that gave them 60 days to file a
notice of appeal. But the Supreme Court has instructed us that
concerns of equity must give way before the “rigorous rules”
6016 HAIGHT v. CATHOLIC HEALTHCARE WEST
of statutory jurisdiction. Id.; see also Eisenstein, 129 S. Ct. at
2236 n.4 (“[T]he Court must nonetheless decide the jurisdic-
tional question before it irrespective of the possibility of harsh
consequences.”). Notwithstanding the Supreme Court’s guid-
ance, Plaintiffs urge us to follow George v. Camacho, 119
F.3d 1393 (9th Cir. 1997) (en banc), in which we refused to
apply retroactively our decision to shorten the time period for
filing a notice of appeal from the Northern Mariana Islands.
But our premise in George was that the Supreme Court’s
admonition that “ ‘a jurisdictional ruling may never be made
prospective only’ . . . has never been applied as broadly and
inflexibly as both its language and our dissenting colleagues
suggest.” Id. at 1397 (quoting Firestone Tire & Rubber Co.
v. Risjord, 449 U.S. 368, 379 (1981)). Eisenstein itself now
represents just such a broad and inflexible application of that
principle. We are bound, then, to follow the Supreme Court’s
clear directive to apply Eisenstein retroactively, no matter
how inequitable the result.
A claim that this result violates due process is equally
unavailing. “As [the Supreme Court’s] decisions have empha-
sized time and again, the Due Process Clause grants the
aggrieved party the opportunity to present his case . . . .”
Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982)
(emphasis added). Plaintiffs do not have a due process right
to a late appeal, even if they effectively had our court’s per-
mission under Haycock to file after Rule 4’s deadline, any
more than Mr. Bowles had the right to a late appeal when he
had the district court’s express permission to do likewise.
Bowles, 551 U.S. at 207.
Plaintiffs correctly note that the Supreme Court’s holding
in Eisenstein does not foreclose the theoretical possibility that
other parts of the Federal Rules of Appellate Procedure could
provide an avenue of relief. We consider their suggestions
below, but conclude that none is viable.
HAIGHT v. CATHOLIC HEALTHCARE WEST 6017
B. Motion for Extension of Time
[6] On February 6, 2009, Plaintiffs filed a motion with us
for extension of time within which to file a notice of appeal.
Plaintiffs ask us to grant this motion under Federal Rule of
Appellate Procedure 4(a)(5). That rule authorizes a district
court to grant an extension of time under certain circum-
stances, but is silent as to the authority of a court of appeals.
We have held that Rule 4(a)(5) grants no power to a court of
appeals. Hoag Ranches v. Stockton Prod. Credit Ass’n (In re
Hoag Ranches), 846 F.2d 1225, 1229 (9th Cir. 1988) (order).1
[7] Furthermore, Rule 4(a)(5)(A)(i) requires that a party
move for extension of time “no later than 30 days after” the
expiration of the time allotted for an appeal. Plaintiffs’ motion
for an extension of time is itself almost four months late. Rule
4 does not authorize late motions. Thus, even if we had the
power to grant motions for extensions of time under Rule
4(a)(5), we would still have to deny Plaintiffs’ motion
because the motion itself is untimely.
[8] Nor may we, under Rule 26, grant an extension of time
to file the notice of appeal. Rule 26 generally gives us the
power to extend any of the deadlines prescribed by the Fed-
eral Rules of Appellate Procedure. However, that rule specifi-
cally provides that “the court may not extend the time to file
. . . a notice of appeal (except as authorized in Rule 4).” As
already explained, courts of appeals are not authorized to
1
Plaintiffs direct our attention to United States v. Arevalo, 408 F.3d
1233, 1239 (9th Cir. 2005), in which we “express[ed] no opinion . . .
whether Rule 4’s silence precludes an appellate court from granting an
extension.” As a threshold matter, declining to reach an issue that we have
already decided in an earlier case does not invalidate the earlier decision.
But in any event, Arevalo was a criminal case under Rule 4(b), not a civil
case under Rule 4(a). Thus, the fact that Arevalo treated the court of
appeals’ authority under Rule 4(b) as an open question does not undercut
the holding of In re Hoag or its application to Plaintiffs’ appeal.
6018 HAIGHT v. CATHOLIC HEALTHCARE WEST
grant extensions under Rule 42 and, even if we were, Plain-
tiffs’ motion cannot be granted because it is untimely. There-
fore, Rule 26 does not allow us to extend the time for
Plaintiffs to file their notice of appeal.
[9] Similarly, we may not, under Rule 26(b), extend the
time to file the motion seeking an extension. Rule
4(a)(5)(A)(i) requires a motion “no later than 30 days after”
the deadline for a notice of appeal. If we were to extend the
time for Plaintiffs to file their motion by four months—and if
we had the power to then grant the requested extension—the
resulting extension would violate Rule 26(b)(1) because it
would not be an extension “as authorized in Rule 4.”
[10] Plaintiffs also argue that, under Rule 2, we could sus-
pend the requirement that a would-be appellant file a timely
motion before a court may grant an extension. Again, even if
2
When In re Hoag announced that Rule 4 did not authorize such an
action by the court of appeals, Rule 26 did not contain the exception cross-
referencing Rule 4. In 1988, Rule 26(b) provided:
The court for good cause shown may upon motion enlarge the
time prescribed by these rules or by its order for doing any act,
or may permit an act to be done after the expiration of such time;
but the court may not enlarge the time for filing a notice of
appeal, a petition for allowance, or a petition for permission to
appeal.
Rule 26 was amended in 1998. However, the 1998 amendments to Rule
26(b) were “intended to be stylistic only.” 28 U.S.C. app., Fed. R. App.
P. 26 advisory committee’s notes (1998 amendment); see also Mitchell v.
Burtvetterlein & Bushnell PC (In re Stein), 197 F.3d 421, 424 n.7 (9th Cir.
2000) (noting that the 1998 amendments to Federal Rule of Appellate Pro-
cedure 4(a)(5) were “strictly stylistic”). Thus, the 1998 amendments did
not abrogate In re Hoag. Nor are the amendments irreconcilable with In
re Hoag. By its terms, Rule 26(b) still applies to “the court.” The state-
ment that “the court” may grant extensions of time “as authorized by Rule
4” recognizes the power of the district court to grant extensions under
Rule 4, but not beyond the limitations of Rule 4. Thus, the phrase “as
authorized by Rule 4” is not surplusage, even though the court of appeals
has no power to grant extensions under Rule 4.
HAIGHT v. CATHOLIC HEALTHCARE WEST 6019
we were to waive that requirement, we have no power to grant
an extension of time. In re Hoag, 846 F.2d at 1229. But Rule
2 does not permit us to suspend the requirement that a timely
motion be filed in the first place. By its own terms, Rule 2
allows the court of appeals to “suspend any provision . . .
except as otherwise provided in Rule 26(b).” Rule 26(b), as
noted above, provides that a court may not extend the time to
file a notice of appeal except as authorized by Rule 4. Rule
4 does not authorize an extension of time to appeal except
upon a timely motion. Thus, Rule 26(b) forbids an extension
of time to file the motion, and Rule 2 prohibits suspending the
requirement of a timely motion. Rule 2 and Rule 26(b) do not
assist a party who has failed to file a timely motion for exten-
sion of time.
[11] We are not alone in reading the rules this way. The
Fifth Circuit similarly has held that Rule 2 and its cross-
reference to Rule 26(b) prevent a court of appeals from sus-
pending the requirements of Rule 4(a)(6), which—like Rule
4(a)(5)—demands filing a timely motion in order to enlarge
the time to file an appeal. Wilkens v. Johnson, 238 F.3d 328,
334-35 (5th Cir. 2001), superseded by rule on other grounds
as recognized by Resendiz v. Dretke, 452 F.3d 356, 358 n.3
(5th Cir. 2006).
Our conclusion as to Rule 2 is reinforced by the Supreme
Court’s admonition that a court “may not waive the jurisdic-
tional requirements of Rules 3 and 4, even for ‘good cause
shown’ under Rule 2, if it finds that they have not been met.”
Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988).
And the requirement of a timely motion under Rule 4(a)(5) is
a jurisdictional one. We so held, in Alaska Limestone Corp.
v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986) (per curiam),
even before Bowles instructed us that timeliness limitations
enacted by statute are jurisdictional, 551 U.S. at 212-13. Con-
gress specified in 28 U.S.C. § 2107(c) that a court may grant
an extension “upon motion filed not later than 30 days after
the expiration of the time otherwise set for bringing appeal.”
6020 HAIGHT v. CATHOLIC HEALTHCARE WEST
The requirement of a motion within 30 days is, thus, created
by statute. It could not be waived under Rule 2, even if Rule
2 purported to authorize such action. Torres, 487 U.S. at 317.
Plaintiffs also request that we construe their notice of
appeal as a motion for extension of time. If we were to do so,
the motion would be timely, but we still would lack the power
to grant it. In re Hoag, 846 F.2d at 1229. More importantly,
though, we have held that we cannot construe a notice of
appeal as a motion for extension of time under Rule 4(a)(5).
Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir. 1981).3
Blausey v. U.S. Trustee, 552 F.3d 1124 (9th Cir. 2009) (per
curiam), and Amalgamated Transit Union Local 1309 v.
Laidlaw Transit Services, Inc., 435 F.3d 1140 (9th Cir. 2006)
(order), are not to the contrary. Blausey and Amalgamated
Transit arose under Rule 5, governing permissive appeals,
rather than under Rule 4. Pettibone controls here. Indeed, in
refusing to treat a notice of appeal as a motion for extension
of time under Rule 4(a)(5), we agree with all the other circuits
that have ruled on the issue. Campos v. Le Fevre, 825 F.2d
671, 675-76 (2d Cir. 1987); United States ex rel. Leonard v.
O’Leary, 788 F.2d 1238, 1239-40 (7th Cir. 1986) (per
curiam); Herman v. Guardian Life Ins. Co. of Am., 762 F.2d
288, 289-90 (3d Cir. 1985) (per curiam); Myers v. Stephen-
son, 748 F.2d 202, 204 (4th Cir. 1984); Campbell v. White,
721 F.2d 644, 645-46 (8th Cir. 1983); Pryor v. Marshall, 711
F.2d 63, 64-65 (6th Cir. 1983); Brooks v. Britton, 669 F.2d
665, 667 (11th Cir. 1982); Bond v. W. Auto Supply Co., 654
F.2d 302, 303-04 (5th Cir. 1981); Mayfield v. U.S. Parole
Comm’n, 647 F.2d 1053, 1055 (10th Cir. 1981) (per curiam);
see also Wyzik v. Employee Benefit Plan of Crane Co., 663
F.2d 348, 348 (1st Cir. 1981) (per curiam) (declining to treat
a notice of appeal as a motion for extension, but reserving
question of “[w]hether or not in truly extraordinary circum-
3
Like In re Hoag, Pettibone survives the 1998 amendments to Rule
26(b).
HAIGHT v. CATHOLIC HEALTHCARE WEST 6021
stances beyond the ability of counsel to foresee or guard
against, a court would have any flexibility”).
We cannot extend the time to file a motion for an exten-
sion, waive the requirement of a timely motion, construe
Plaintiffs’ notice of appeal as such a motion, or grant such a
motion—timely or not. Plaintiffs cannot obtain an extension
of time from us.
C. Unique Circumstances Doctrine
[12] Plaintiffs also wish us to permit their untimely appeal
under the “unique circumstances” doctrine. Plaintiffs recog-
nize that Bowles described the equitable doctrine as “illegiti-
mate” insofar as it “purport[s] to authorize an exception to a
jurisdictional rule.” 551 U.S. at 214 (emphasis added). They
argue, however, that the doctrine could still be applied to non-
jurisdictional rules. But no non-jurisdictional rules bar Plain-
tiffs’ appeal. The requirement of a timely notice of appeal is
jurisdictional, id. at 209, as is the requirement that a would-be
appellant file a timely motion for an extension of time before
such an extension may be granted, 28 U.S.C. § 2107(c);
Alaska Limestone, 799 F.2d at 1411. Thus, we cannot hear
their appeal under the unique circumstances doctrine.
D. Dismissal of Stay
Plaintiffs also ask that we reconsider our order to stay the
appeal, dismiss the stay as improvidently granted, and enter
judgment on the appeal nunc pro tunc. Plaintiffs cite no legal
authority—and we are aware of none—for the proposition
that we may decide a pending case under precedent that the
Supreme Court has overruled retroactively. Because Eisen-
stein means that Plaintiffs’ notice of appeal is, and always
was, untimely, we have always lacked jurisdiction to address
the merits of their appeal. We therefore will not dismiss the
stay.
6022 HAIGHT v. CATHOLIC HEALTHCARE WEST
E. Remand
[13] Plaintiffs also ask us for a limited remand to the dis-
trict court so that it may determine whether they are entitled
to a nunc pro tunc extension under Rule 4(a)(5). Such a
remand would be futile, because the district court would be
prohibited from granting an extension in the absence of a
timely motion. Alaska Limestone, 799 F.2d at 1411. No such
motion was filed in this case, and it is now too late to file one.
Moreover, Rule 4 “precludes us from remanding . . . on the
theory that the untimely notice of appeal itself might be con-
sidered by the district judge as a motion for extension of
time.” Pettibone, 666 F.2d at 335. Accordingly, we decline to
remand the case.4
Conclusion
We sympathize with Plaintiffs, who complied with our pre-
cedent in filing their notice of appeal 51 days after the entry
of judgment. Nevertheless, we conclude that we lack jurisdic-
tion over Plaintiffs’ late appeal and may not act under the
Federal Rules of Appellate Procedure to enable Plaintiffs to
appeal.
Appeal DISMISSED. The motion to dismiss, filed January
22, 2009, is DISMISSED as moot.
4
We need not and do not decide whether any other avenue for action by
the district court remains open in this case.