IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 99-41180
________________________
JAMES JOSEPH WILKENS, JR.,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
____________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
____________________________________________
January 4, 2001
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge.
“Rule 4(a)(1) of the Federal Rules of Appellate Procedure
provides that a party who wants to appeal a judgment or order
entered in a civil case must file a notice of appeal with the clerk
of the district court within 30 days after the date of entry of the
judgment or order from which the appeal will be taken. Rules
4(a)(5) and (6) provide that the district court may, upon motion,
extend [or reopen] the time for filing a notice of appeal. Rule
4(a)(5) is available to a party who shows excusable neglect or good
cause for failing to file within the 30 days provided; Rule 4(a)(6)
may be applied where the court finds that the moving party did not
receive notice of the entry of a judgment or order ‘from the
[district court] or any party within 21 days of its entry’and that
no other party would be prejudiced by allowing the filing of a late
notice of appeal. Relief under 4(a)(6) is available only ‘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.’
“This case raises the question whether the seven-day filing
window of Rule 4(a)(6) is opened when a party receives [fax] notice
of the entry of a judgment or order from [the district court].”1
For the reasons hereafter set forth, we answer that question in the
affirmative and dismiss this appeal.
I.
FACTS AND PROCEEDINGS
Petitioner-Appellant James Joseph Wilkens, Jr. is currently on
death row in Texas awaiting execution after being convicted and
sentenced to death by a state court jury in Texas. Presumably
having exhausted his direct and collateral appeals under state law,
Wilkens sought habeas relief in federal district court. On June
18, 1999, the district court entered judgment denying Wilkens’s
petition. Although an entry in the district court’s docket sheet
for this case reflects that the clerk mailed copies of the Final
1
Benavides v. Bureau of Prisons, 79 F.3d 1211, 1213 (D.C. Cir. 1996).
2
Judgment and Denial of Motions (the “judgment”) to the attorneys of
record that same day,2 counsel for Wilkens avers that he never
received a copy until, at the request of the staff attorney for the
district court, a copy was “faxed” to him by the court on September
7, 1999.3
A subsequent docket entry, this one dated October 7, 1999,
confirms that Wilkens filed a Motion for Leave to File Late Notice
of Appeal on October 4, 1999. Docket entries dated October 13,
1999 reflect three filings on October 12, 1999: (1) The district
court’s order granting Wilkens’s October 4 motion, (2) Wilkens’s
notice of appeal (“NOA”), and (3) Wilkens’s motion to proceed in
forma pauperis (“IFP”) on appeal. In November, the court granted
Wilkens’s motion to proceed IFP on appeal and issued a certificate
of appealability (“COA”).
II.
ANALYSIS
A threshold question implicit in every case that comes before
us is whether we have appellate jurisdiction. Respondent-Appellee
2
A June 18, 1999 docket entry in the district court record of this case
states: “Final Judgment that this petition for writ of habeas corpus is DENIED.
All motions by either party not previously ruled on are hereby DENIED. (Signed
by Judge Paul Brown) cc: Attys. 6/18/99 (baf).” Fed. R. Civ. P. 77(d) directs
the clerk to “serve a notice of the entry [of judgment] by mail in the manner
provided for in Rule 5,” which specifies mailing to the party or his attorney at
the attorney’s last known address. Rule 5 also provides that “[s]ervice by mail
is complete upon mailing.” (Emphasis added).
3
This docket entry indicates that the deputy clerk who made the docket
entry, “(tm)” (initials of Toya McEwen), “[f]axed Memorandum Order and Final
Judgment to M. Breding per request of staff atty.” Then as now, counsel of
record for Wilkens was Mark W. Breding, Esq., Tyler, Texas.
3
Johnson has not questioned our jurisdiction; on the contrary, he
has filed a “Non-Opposition to Petitioner’s Out-of-Time Appeal”
declining, “in the interest of justice,” to oppose appellate review
of the district court’s judgment. Even absent a challenge by a
litigant, however, we must examine the basis of our jurisdiction
sua sponte4: A party cannot waive a defect in appellate
jurisdiction;5 neither can jurisdiction be created by mutual
consent of the parties.6 The timely filing of a valid NOA is a
mandatory precondition to the exercise of appellate jurisdiction.7
Consequently, we must determine whether Wilkens’s NOA is somehow
sufficient to satisfy this mandatory prerequisite to our hearing
his case on appeal even though his NOA was not filed until almost
four months after entry of judgment. Central to this inquiry is
whether the district court’s October 12, 1999 order granting
Wilkens’s October 4 motion for leave to file his NOA out of time is
valid; if it is not, then neither is Wilkens’s NOA or the district
court’s subsequently granted COA.
Notwithstanding the reason for a petitioner’s being in custody
—— here, his conviction of a crime punishable by death —— a
4
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Mosley v. Cozby,
813 F.2d 659, 660 (5th Cir. 1987).
5
Vincent v. Consol-Operating Co., 17 F.3d 782, 785 (5th Cir. 1994).
6
Beers v. North American Van Lines, Inc., 836 F.2d 910, 912 (5th Cir.
1988).
7
Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994).
4
petition for a writ of habeas corpus filed in federal court is a
civil proceeding.8 Thus the Federal Rules of Civil Procedure
(“Fed. R. Civ. P.”) govern habeas proceedings in the district
court, and the civil provisions of the Federal Rules of Appellate
Procedure (“Fed. R. App. P.”) govern habeas proceedings on appeal.
The judgment of the district court in this case was entered on
June 18, 1999; Wilkens’s NOA was not filed until October 12, 1999,
considerably more than the specified maximum of 30 days after entry
of judgment.9 We are without jurisdiction to hear Wilkens’s
appeal, then, unless his late-filed NOA is somehow rescued by
proceedings that comply with Rule 4(a)'s provisions for extending10
11
or reopening the time within which to file an NOA. A non-federal
party to civil litigation in federal district court who fails to
file an NOA within Rule 4(a)(1)’s 30-day period following entry of
the order or judgment from which an appeal is sought still has
available two lifelines for rescuing his appeal through a late-
filed notice of appeal. One is the extension lifeline specified in
Rule 4(a)(5) (“section (5)”), and the other is the reopening
lifeline specified in Rule 4(a)(6) (“section (6)”).
8
Fisher v. Baker, 203 U.S. 174, 181 (1906).
9
Fed. R. App. P. 4(a)(1)(A).
10
Fed. R. App. P. 4(a)(5).
11
Fed. R. App. P. 4(a)(6).
5
Section (5) makes clear that the only time the district court
is empowered to toss the extension lifeline to a putative appellant
is when a motion seeking extension is filed no later than 30 days
after expiration of the original 30 days specified in Rule
4(a)(1)(A), i.e., no later than 60 days after entry of the order or
judgment from which appeal is sought. Only then can the district
court even consider whether either of section (5)’s two exclusive
grounds for granting such an extension —— excusable neglect or good
cause —— has been demonstrated. As Wilkens did not file a motion
for extension of time to file his NOA within 60 days following the
June 18, 1999 entry of judgment, section (5)’s lifeline for
extending the time for filing an NOA had ceased to be available to
Wilkens or to the district court long before October, 1999.
That said, only section (6)’s reopening lifeline remains as a
possibility for rescuing Wilkens’s late-filed NOA.12 Section (6)
is the exclusive authority for the district court to order the
reopening of an otherwise expired and no longer extendable time for
12
Rule 4. APPEAL AS OF RIGHT ——
(a) Appeal in a Civil Case
. . . .
(6) Reopening the Time to File an Appeal. The district court may
reopen the time to file an appeal for a period of 14 days after the date when its
order to reopen is entered, but only if all the following conditions are
satisfied:
(A) the motion if filed within 180 days after the judgment or order
is entered or within 7 days after the moving party receives notice of the entry,
whichever is earlier;
(B) the court finds that the moving party was entitled to notice of
the entry of the judgment or order sought to be appealed but did not receive the
notice from the district court or any party within 21 days after entry; and
(C) the court finds that no party would be prejudiced.
6
filing an NOA. A district court has authority to toss the
reopening lifeline to a putative appellant only after a motion to
reopen is filed by a party who is eligible to do so under the
provisions of section (6); the district court cannot reopen sua
sponte.13 And, a party’s eligibility to file a motion to reopen is
governed exclusively by the three subparts of section (6), i.e.,
Rule 4(a)(6)(A) (“subpart (A)”),(B) (“subpart (B)”), and (C)
(“subpart (C)”).
Subpart (B) is the gatekeeper provision of section (6). It
specifies that only a party who (1) was entitled to notice of entry
of judgment,14 but (2) did not receive notice from either (a) the
district court or (b) any party (3) within 21 days after entry of
judgment, is eligible to file a motion to reopen. None contest
that Wilkens was entitled to notice of entry of judgment under Rule
77(d) or that he did not actually receive notice from the court or
any party within 21 days after entry, so he meets subpart (B)’s
threshold requirements for eligibility to seek reopening. This
leaves only subpart (A) for us to consider.
Under subpart (A), a party such as Wilkens who meets the
criteria of subpart (B) is eligible to file a section (6) motion to
reopen and attempt to demonstrate the absence of prejudice as
13
Id.
14
Referring to Rule 4(a)(1)’s 30-day period for filing a notice of appeal
and the party’s entitlement of mail service of notice of entry of judgment from
the clerk of the district court pursuant to Fed. R. Civ. P. 77(d).
7
required by subpart (C).15 For the moving party to be eligible to
obtain a valid reopening order from the district court, however, he
must have filed his motion seeking to reopen by the earlier of (1)
180 days after entry of judgment or (2) seven days after he
“receive[d] notice of entry” of judgment. Absent the timely filing
of such a motion, the court is powerless to reopen the time for
filing an NOA. It is not disputed that Wilkens’s October 4, 1999
motion for permission to file an NOA out of time was filed (1) well
before the expiration of the 180-day period after the entry of
judgment on June 18, 1999, but (2) well after the expiration of the
seven-day period following his counsel’s actual receipt of the
facsimile copy of the judgment on September 7, 1999.
In light of these undisputed facts, our final question —— one
of law, not fact —— is whether the copy of the court’s judgment
that was faxed by the district clerk’s office on September 7, 1999
and received in hand by counsel for Wilkens that same day,
qualified as “notice of the entry [of the judgment]” for the
purpose of opening subsection (A)’s alternative seven-day motion
filing window. If the faxed copy did not qualify, then (1) the
15
Absence of prejudice is the only substantive requirement for the
district court to have authority to grant a reopening order. Such an order
differs from an extension order under section (5), which requires the movant to
demonstrate either good cause or excusable neglect —— standards clearly more
onerous than absence of prejudice and just as clearly inapplicable to section
(6). We assume that Wilkens met subpart (C)’s prejudice test. This assumption
is strengthened by, inter alia, the district court’s grant of Wilkens’s motion
and the Respondent’s filing of a Notice to Court of Non-Opposition to
Petitioner’s Out of Time Appeal on March 6, 2000, in response to our show cause
order of January 27, 2000.
8
180-day period applied, (2) the reopening lifeline remained
available, and (3) Wilkens’s October 4, 1999 motion, the court’s
October 12 order granting that motion, and Wilkens’s October 12
NOA, were all timely filed; and we would have jurisdiction to hear
this appeal. If, however, the fax copy of the judgment did qualify
as notice for purposes of subpart (A), then (1) the seven-day
provision applied, (2) it trumped the 180-day provision by being
the earlier of those two alternatives, and (3) Wilkens’s motion,
the court’s order, and Wilkens’s NOA are absolute nullities and we
would have no jurisdiction to consider this appeal. It’s as simple
as that.
Unlike Rule 4(a)(1) and subpart (B) of section (6), nothing in
subpart (A) of section (6) purports to ascribe any particular
qualities or formalities to the words “receive” or “notice”:
There’s nothing about the physical attributes of the notice (oral
or written; electrostatic, carbon, or certified copy, etc.);
nothing about who must furnish the notice (the court, the clerk,
the party opposite, an interested or disinterested third party,
etc.); nothing whatsoever about delivery of the notice, much less
specification of a particular method of delivery (service of
process, ordinary mail, registered mail, certified mail, e-mail,
hand delivery, facsimile delivery, etc.); and nothing about who
other than the moving party is authorized to receive the notice
(counsel for moving party, responsible party in home or office,
9
etc.). When we read the plain language of subpart (A), we can
reach no conclusion but that the fax copy of the judgment —— sent
by the clerk of the district court and received in hand by counsel
of record for Wilkens, more than 21 days but less than 180 days
after entry of judgment —— was sufficient to open subpart (A)’s
seven-day window of opportunity within which Wilkens could have and
must have filed a motion to reopen or forever be precluded from
seeking to reopen.
In sum, irrespective of whether the plain words of subpart (A)
are read in a vacuum or in pari materia with the plain words of
Rule 4(a) in its entirety, the message of subpart (A) is pellucid:
16
Any written notice of entry received by the potential appellant
or his counsel (or conceivably by some other person), regardless of
how or by whom sent, is sufficient to open subpart (A)’s seven-day
window.17 This conclusion is also consistent with relevant
jurisprudence from other circuits, which we now examine briefly.18
16
See Bass v. U. S. Dep’t of Agric., 211 F.3d 959, 963 (5th Cir. 2000)
(holding that oral notice of the judgment is insufficient under Rule 4(a)(6)).
17
The Second Circuit, in Ryan v. First Unum Life Ins. Co., 174 F.3d 302
(2nd Cir. 1999), has read into subpart (A) the additional requirement that, when
a party is represented by counsel, notice must be received by counsel. Although
we perceive no such requirement, that issue is not before us, as the fax copy of
the judgment at issue here was received in hand by counsel of record for Wilkens;
so anything we might say on that subject would be dicta. We therefore leave that
point for another day.
18
Id. As the notice received by counsel for Wilkens was written (fax)
and was furnished by the district court, this case is distinguishable from
Benavides, 79 F.3d 1211 (D.C. Circuit 1996), in which the notice was neither
written nor furnished by the court or a party —— both factors relied on by the
D.C. Circuit in concluding that oral notice from a third party is insufficient
for purposes of subpart (A). With all due respect, we disagree with the portion
10
The Ninth Circuit in Nunley v. City of Los Angeles embraced
the concept of actual notice for starting the seven-day period.19
The Nunley court ruled that the seven-day period began to run when
the potential appellant’s attorney happened to spot the entry of
the order adverse to his client while simply perusing the clerk’s
docket records. No formal service; no sending of notice
whatsoever; no “hard copy” of the notice in hand; yet, in the Ninth
Circuit’s view, still the receipt of notice of entry sufficient to
trigger the seven-day clock. The court so held because counsel
“received” actual notice, and subpart (A) specifies nothing more
formal than that. Similarly, in Zimmer St. Louis, Inc. v. Zimmer
Co., the Eighth Circuit indicated in dicta that the seven-day
period was triggered when counsel received oral notice from the
judge’s clerk that the adverse order had been entered.20 And the
First Circuit in Scott-Harris v. City of Fall River,21 despite
concluding that written notice is required to trigger the seven-day
of the Benavides opinion that would require subpart (A)’s notice to come from the
clerk (now, the court) or a party. Although the crediting of oral notice under
subpart (A) is foreclosed in this Circuit by Bass, supra n. 16 —— and is not
presented to us today —— we see the question of the identity of the furnishers
of notice as inapposite to subpart (A). The Benavides court, at 1214, obviously
—— and, we believe, erroneously —— lifted the phrase, “from the [court],” from
subpart (B) and its 21-day requirement, engrafted that phrase onto subpart (A),
and applied it to the seven-day provision, all without any statutory basis to do
so. As we have demonstrated in detail, the statutory language of subpart (A) is
not, in our opinion, susceptible of such construction, whether read alone or in
context of 4(a) as a whole.
19
52 F.3d 792, 794 (9th Cir. 1995).
20
32 F.3d 357, 359 (8th Cir. 1994). But cf. Bass, supra n.16.
21
134 F.3d 427 (1st Cir. 1997), cert. denied 523 U.S. 1003 (1998).
11
time period under subpart (A),22 recently held that counsel’s
receipt of a written “demand for satisfaction of judgment” ——
distinct from notice of entry or the judgment itself—— was
sufficient to open subpart (A)’s seven-day filing window.23
More directly on point is a case from the Second Circuit which
supports our conclusion today that actual receipt in hand by
Wilkens’s counsel of a facsimile copy of the judgment sent to him
by the district court on September 7, 1999 and received by him that
day, was sufficient to trigger the running of the seven-day period
here at issue. In Ryan v. First Unum Life Ins. Co.,24 the Second
Circuit squarely addressed the issue whether a notice that was not
formally served pursuant to Fed. R. Civ. P. 77(d) and 5(b) was
sufficient to start the seven-day clock under subpart (A). In that
case, counsel obtained a copy of the judgment from the clerk’s
office on the day after an investigator affiliated with counsel’s
law office had ventured to the clerk’s office, been informed orally
that judgment had been entered, and so advised counsel, who then
obtained a copy from the clerk’s office. The section (6) reopening
motion in Ryan was filed within 180 days after entry of judgment
but not within seven days after counsel had obtained in-hand a copy
of the judgment. Rejecting the contention that subpart (A)
22
Id. at 434.
23
Id. at 435.
24
174 F.3d 302 (2d Cir. 1999).
12
requires formal Fed. R. Civ. P. 77(d) and 5(b) mail service of a
copy of the judgment, the Ryan court held that when “a party’s
attorney receives from the Clerk in-hand, written notice indicating
that judgment was entered, a motion to re-open must be filed within
the subsequent seven days.”25 In so holding, the Ryan court
rejected counsel’s argument that receipt from the clerk in-hand
rather than by mail pursuant to Rule 77(d) was not “proper notice,”
precisely the argument advanced by counsel for Wilkens which, like
the Second Circuit, we reject today.
Given the plain wording of Rule 4(a), our reasoning in Bass,26
and the reasoning of those other circuits that have addressed the
issue, we are unable to discern a distinguishing difference between
counsels’ receipt of copies of the judgments following their
requests in Bass and Ryan, on the one hand, and the receipt of the
written facsimile copy of the judgment by Wilkens’s counsel, on the
other hand. All circuits that have addressed this aspect of the
rule have concluded that receipt of written notice by counsel for
the potential appellant starts the seven-day clock of subpart (A)
on the day of receipt, even though not served by mail from the
district court in strict compliance with Fed. R. Civ. P. 77(d) and
5(b). Any contention that such notice must emanate from the court
or a party, or that it must be served by mail pursuant to Rule
25
Id. at 305.
26
211 F.3d 959 (5th Cir. 2000).
13
5(b), runs counter to the plain wording of Rule 4(a) and section
(6) in general, and counter to the plain wording of subpart (A) and
the teachings of our opinion in Bass27 and the cases from other
circuits in particular. Counsel’s argument that his receipt of
notice by fax from the clerk of the district court was not “proper
notice” or “formal notice,” implying that subpart (A) specifies
some sort of formal requirements, widely misses the mark. It has
no foundation in the words of the applicable rules or case law.
Finally, counsel for Wilkens suggests, in the alternative,
that “pursuant to [Fed. R. App. P.] 2, [this court] should suspend
the requirements of Rule 4(a)(5) or (6)...so that justice may be
done.”28 But even if we were inclined to do so because, inter alia,
Wilkens is in custody awaiting execution, we could not take the
action that is suggested by counsel. Although, as a general
proposition, Rule 2 authorizes us to suspend the Federal Rules of
27
Id.
28
Counsel for Wilkens purports not to know whether the district court
proceeded under subsection (5) or subsection (6) of Rule 4(a) but, despite the
fact that neither his motion nor the court’s order identifies the source rule,
we must assume that the court was reopening the time to file. As we have shown,
extending the time to appeal under subsection (5) had long since ceased to be a
viable option by the time, on October 4, 1999, Wilkens filed his motion for leave
to file his NOA out of time, as well as by the time, on October 12, 1999, the
court granted the motion and Wilkens filed his NOA. Not only does Rule 4(a)(5)
say nothing about a party’s receipt of notice of entry of judgment, subpart
(5)(C) specifies in mandatory terms that no extension may exceed 30 days after
the prescribed 30-day time for appeal, i.e., 60 days after entry of judgment, or
10 days after the date on which the order granting the motion for extension is
entered, whichever is later. As it is undisputed that no motion was filed within
the 30+30 period of 60 days, there could have been no order granting a motion to
extend the time for filing a notice of appeal, only one reopening the time. So,
despite the absence of an identifying label in either the motion or the order,
counsel for Wilkens has to know that the court’s order was a “reopening” under
Rule 4(a)(6) if it were anything at all.
14
Appellate Procedure for “good cause” in a particular case, Rule 2
is not an unconditional, roving warrant for us quixotically to “do
justice.” We cannot ignore the express caveat of Rule 2's final
phrase, “except as otherwise provided in [Fed. R. App. P.] 26(b).”
And, even though Rule 26(b) authorizes us to “extend the time
prescribed by these Rules” or to “permit an act to be done after
the prescribed time has expired,” this same rule expressly forbids
us to do so when the prescribed or expired time in question is the
time for filing an NOA!29 Indeed, Rule 26(b) states unequivocally
that we “may not extend the time to file:
(1) a notice of appeal (except as authorized
in Rule 4)....”
Today’s entire self-examination of our appellate jurisdiction turns
on the extension and reopening provisions of Rule 4(a). And,
together, Rules 2 and 26(b) bring us right back to Rule 4(a),
precisely where we were when we detoured to consider Wilkens’s
alternative invitation to do justice by (mis)applying Rule 2. On
this alternative entreaty, our hands are tied.
III.
Conclusion
29
See Fed. R. App. P. 2, Advisory Committee Notes, 1967 Adoption (“This
rule contains a general authorization to the courts to relieve litigants of the
consequences of default where manifest injustice would otherwise result. Rule
26(b) prohibits a court of appeals from extending the time for taking appeal or
seeking review.”)(emphasis added).
15
To recap, the district court’s judgment denying habeas relief
in this case was entered on June 18, 1999. The clerk of the
district court appears to have served notice of the entry of
judgment that day by mail to counsel for each party, in compliance
with Fed. R. Civ. P. 77(d) and 5(b).30 That neither Wilkens nor his
counsel ever received this notice, however, is not contested.
Also uncontested is the fact that the first notice of entry of
judgment ever received by counsel for Wilkens was oral, via
telephone, from staff counsel for the district court on September
7, 1999; neither is it contested that the oral notice was followed
immediately by the court’s faxing of a copy of the judgment, or
that the fax was received by counsel for Wilkens at his law office
later that day. Counsel never received notice of entry of judgment
within 60 days after entry, so that extension under Rule 4(a)(5)
was unavailable to Wilkens.
Additional undisputed facts demonstrate that, even though
Wilkens was entitled to service of the notice of entry of judgment,
and even though notice appears to have been served, neither Wilkens
nor his attorney received notice of entry of judgment from the
court or any party within 21 days after entry. Wilkens thus
cleared the first hurdle to entitlement to reopening under Rule
4(a)(6): Subpart (B)’s 21 days provision was not an impediment to
30
See Fed. R. Civ. P. 5(b)(“Service by mail is complete upon mailing”).
16
his filing a motion for reopening, and he did in fact file such a
motion within the 180-day outer limit for doing so.
Not until almost a month after receiving the fax copy of the
judgment from the court on September 7, 1999, however, did
Wilkens’s lawyer file a motion in the district court for leave to
file a late NOA, which we construe as a Rule 4(a)(6) motion to
reopen. About one week after that, the district court granted
Wilkens’s motion and counsel filed Wilkens’s late NOA. This all
took place well before the expiration of subpart (A)’s 180-day
period following entry of judgment, but well after the expiration
of subpart (A)’s seven day period following receipt of notice of
entry, the earlier of the times within which Wilkens had to file
his motion to reopen.
Subpart (A) of Rule 4(a)(6) speaks only of receipt of notice:
It says nothing at all about who must send the notice; nothing at
all about how the notice must be sent, delivered, or received;
nothing at all about the physical qualities of the notice —— just
plain, unadulterated “receives notice of the entry.” Here, a
written copy of the judgment was (1) sent by the court (2) via fax
(3) to counsel’s law office where it was printed out by his office
fax machine and from there received in hand by counsel of record.
Yet Wilkens’s counsel filed no motion to reopen the time for filing
an NOA, or any other pleading for that matter, during the ensuing
period of seven days allowed by subpart (A). Thus the motion he
17
finally did file, several weeks after receiving the written notice
via fax —— and the order that the district court signed and entered
another eight days after that, purporting to grant that motion ——
were without any legal effect whatsoever.
Moreover, even if, in the alternative, we were inclined to
rescue Wilkens’s otherwise void NOA by invoking Rule 2 “to prevent
manifest injustice,” we could not. As recognized by the Advisory
Committee Notes, Rule 26(b) expressly proscribes using Rule 2 to
extend the time for filing an NOA.31
Because Wilkens’s motion of October 4, 1999 is an absolute
nullity, the court’s order of October 12 purporting to reopen the
time for filing is an absolute nullity, in turn making Wilkens’s
October 12 NOA an absolute nullity. As Wilkens never timely filed
a notice of appeal, we have no jurisdiction to hear his complaint
that the district court erred in denying habeas relief.
APPEAL DISMISSED.
ENDRECORD
31
See supra n. 26.
18
DENNIS, Circuit Judge, dissenting:
The issue in this case is whether the facsimile (“fax”)
transmission of a copy of the court’s judgment to the fax number of
Wilkens’s counsel by the clerk’s office at the behest of a staff
attorney constitutes receipt of notice of the entry of judgment by
Wilkens as required by Federal Rule of Appellate Procedure
4(a)(6)(A). Because I believe that receipt by fax transmission
fails to suffice as receipt of “notice of the entry” of judgment
under Rule 4(a)(6)(A), I respectfully dissent.
Since Rule 4(a)(6)(A) requires that an appellant file a motion
to reopen the time to file an appeal within 180 days after the
judgment or “within 7 days after the moving party receives notice
of the entry,” we must look to Federal Rule of Civil Procedure
77(d) as it provides the rule that directs the clerk to serve the
notice. Rule 77(d) states:
Immediately upon the entry of an order or judgment the
clerk shall serve a notice of the entry by mail in the
manner provided for in Rule 5 upon each party who is not
in default for failure to appear, and shall make a note
in the docket of the mailing. Any party may in addition
serve a notice of such entry in the manner provided in
Rule 5 for the service of papers. 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
19
failure to appeal within the time allowed, except as
permitted in Rule 4(a) of the Federal Rules of Appellate
Procedure.
Fed. R. Civ. P. 77(d). Rule 5(b) provides, “Service upon the
attorney or upon a party shall be made by delivering a copy to the
attorney or party or by mailing it to the attorney or party at the
attorney’s or party’s last known address or, if no address is
known, by leaving it with the clerk of the court.” Fed. R. Civ. P.
5(b)(in pertinent part).
The Advisory Committee Notes to these two rules compel the
conclusion that Rule 4(a)(6) contemplates receipt of notice only as
authorized by Rules 77(d) and 5(b). Rule 4(a)(6)(A) “provides a
limited opportunity for relief in circumstances where the notice of
entry of a judgment or order, required to be mailed by the clerk of
the district court pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure, is either not received by a party or is received
so late as to impair the opportunity to file a timely notice of
appeal.” Fed. R. App. P. 4 advisory committee notes (1991
Amendment). “This provision . . . enables any winning party to
shorten the 180-day period by sending (and establishing proof of
receipt of) its own notice of entry of a judgment, as authorized by
Fed.R.Civ.P. 77(d).” Fed. R. App. P. 4(a)(6) advisory committee
notes (1991 Amendment) (emphasis added). In 1991, Rule 77 was also
amended as “a companion to the concurrent amendment to Rule 4 of
20
the Federal Rules of Appellate Procedure.” Fed. R. Civ. P. 77
advisory committee notes (1991 Amendment). The amendment
maintained the provision that the clerk shall serve notice of the
entry of the judgment, but also invited the prevailing party to
serve notice in order to ensure “certainty that the time for appeal
is running.” Id. Most important, the Advisory Committee Notes
state, “An appropriate procedure for such notice is provided in
Rule 5.” Id.
Moreover, in Bass v. United States Dep’t of Agric., 211 F.3d
959 (5th Cir. 2000), this court necessarily relied on an in pari
materia reading of Rule 4(a)(6) and Rule 77(d).32 To quote,
First, Appellate Rule 4(a)(6) and Civil Rule 77(d) must
be read in pari materia. Rule 77(d) requires the clerk
to serve the notice of entry of an order or judgment ‘by
mail.’ Because a mailed notice is necessarily a written
notice, it is logical to conclude that when reference is
made later in Rule 77(d) to ‘lack of notice of the
entry,’ not relieving a party ‘from failure to appeal
within the time allowed except as permitted in Rule
32
Other courts have also read Appellate Rule 4(a)(6) and Civil Procedure
Rule 77(d) together. See, e.g., Nunley v. City of Los Angeles, 52 F.3d 792, 795
(9th Cir. 1995) (“[Rule 4(a)(6)] is to be read in conjunction with Fed.R.Civ.P.
77(d).”); Benevento v. United States, No. 96-7311, 2000 WL 890381, *1 (S.D.N.Y.
July 5, 2000) (finding that receipt by a party’s attorney of an order mailed by
the clerk “necessarily constitutes such notice to the party” as contemplated by
Rule 4(a)(6)).
21
4(a),’ Fed. R. Civ. P. 77(d)(emphasis added), that
reference contemplates lack of written notice.
Thus, we must look to Rules 77(d) and 5(b) in order to
determine what constitutes receipt of notice under Rule 4(a)(6)(A).
The only alternative method of service contemplated by Rule 77(d)
is expressly limited to service of the notice by a party who may do
so “in the manner provided in Rule 5 for the service of papers.”
Fed. R. Civ. P. 77(d). Rule 5 requires service by mail or by one
of the enumerated methods of delivery. Thus, the two rules in pari
materia provide that either the clerk must serve notice of the
entry of judgment by mail, or a party must serve such notice either
by mail or by delivery as prescribed by Rule 5(b). See 16A WRIGHT,
MILLER, & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 3D § 3950.6 (3d
ed. 1999) (“A winning party who desires certainty that the appeal
time is running and who cannot know whether the other side has
received notice from the clerk can themselves serve notice of the
entry.”).
In the instant matter, Wilkens’s attorney was not served
notice of the entry of judgment in any manner authorized by either
Rule 77(d) or Rule 5(b). Because the clerk attempted service by
fax rather than by mail and the opposing attorney did not even try
to serve notice, I believe that valid service of notice of entry of
judgment was not made.
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Under Rule 5, a party may serve notice of entry of judgment
only by mail or by delivery. Delivery means: “handing it to the
attorney or to the party; or leaving it at the attorney’s or
party’s office with a clerk or other person in charge thereof; or,
if there is no one in charge, leaving it in a conspicuous place
therein; or, if the office is closed or the person to be served has
no office, leaving it at the person’s dwelling house or usual place
of abode with some person of suitable age and discretion then
residing therein.” Fed. R. Civ. P. 5(b). Electronic transmission
of a fax of the notice to an attorney’s fax number does not
constitute “delivery” under that definition. The fax obviously was
not “hand[ed] . . . to the attorney,” nor was it left “at the
attorney’s or party’s office with a clerk or other party in charge”
because there was no hand delivery. Also, delivery was not
accomplished by the third method, “leaving it in a conspicuous
place.”
What is most telling about Rule 5(b) is not what it says, but
what it does not: nowhere in Rule 5(b) is there mention of fax or
any other electronic transmissions. However, in section (e), Rule
5 was specifically amended to include filing by fax. Fed. R. Civ.
P. 5(e) (“A court may by local rule permit papers to be filed,
signed, or verified by electronic means that are consistent with
technical standards, if any, that the Judicial Conference of the
United States establishes.”). The Advisory Committee Notes for the
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1991 amendment state: “The revision also accommodates the
development of the use of facsimile transmission for filing.” The
Notes for the 1996 amendment likewise authorize filing by fax or
other electronic means. The Committee expressed concern about
developing standards: “Judicial Conference adoption of technical
standards should prove superior to specification in these rules,”
and “standards must be established to assure proper maintenance and
integrity of the record and to provide appropriate access and
retrieval mechanisms.” Notably, section (b), however, has never
been amended to include electronic transmissions.
The well-reasoned opinion of Salley v. Board of Governors,
Univ. of North Carolina, Chapel Hill, 136 F.R.D. 417, 420 (M.D.
N.C. 1991), succinctly rejected the plaintiff’s arguments that a
fax constituted personal delivery under Rule 5(b) or else, delivery
by “leaving it in a conspicuous place.” Recognizing that including
fax as a method of delivery specified in Rule 5(b) is better left
to “the collegial process of a rules committee,” the court then set
out an excellent explanation of why faxes should not qualify as a
method of delivery under Rule 5(b).
When a document is personally delivered, a person can
verify and certify that an intact and complete copy was
left in the attorney’s office. With a fax transmission,
the person sending the document can only certify that he
or she attempted to, and apparently did, transmit the
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document electronically over telephone lines to the other
office. That person cannot certify that the copy was in
fact received in that office. Also, since fax machines
can operate 24 hours a day and during holidays when the
lawyer’s office is closed, this presents a problem of
determining the time of service . . . . Therefore, should
faxed documents be deemed served from the time of
transmission? Or, if they are transmitted outside of
regular office hours, should service only be deemed to
have occurred when the office is next opened? For these
reasons and unresolved questions, the Court finds that
fax transmission are not a form of delivery as that term
is used in Rule 5(b).
136 F.R.D. at 420.
The Salley decision is in accord with numerous other cases
holding that fax is an insufficient form of delivery under Rule
5(b). See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1429 (9th
Cir. 1996) (“Service by fax does not satisfy Fed. R. Civ. P. 5(b)).
See also United States v. Galiczynski, 44 F.Supp. 2d 707, 713 (E.D.
Pa. 1999) (“The result reached here, that the Federal Rules of
Civil Procedure do not authorize service by fax, is consistent with
the unanimous decisions rendered by courts that have considered the
issue.” (citing, inter alia, Switzer v. Sullivan, No. 95-3793, 1996
WL 52911, *1 (N.D. Ill. Feb. 5, 1996); Mushroom Assocs. v. Montery
S:\OPINIONS\PUB\99\99-41180.CV0 25
Mushrooms, Inc., No. 91-1092, 1992 WL 442898, *4 (N.D. Cal. Aug.
21, 1992))); Erbacci, Cerone, & Moriarty, Ltd. v. United States,
166 F.R.D. 298, 303 (S.D.N.Y. 1996) (attempting to serve motion to
reconsider by facsimile violated Rule 5(b)).
Cases cited by the majority do not support the contention that
Rule 4(a)(6) is not read in conjunction with Rule 77(d). Nunley v.
City of Los Angeles, 52 F.3d at 794, did seem to embrace the
concept of actual notice triggering the 7-day time period of Rule
4(a)(6), in dicta; however, the court’s actual holding was simply
that the presumption of receipt established by mailing is
rebuttable and could be overcome by evidence of non-receipt at a
contradictory hearing on remand. The First Circuit in Scott-Harris
v. City of Fall River, 134 F.3d 427, 434-35 (1st Cir. 1997), rev’d
on other grounds, 520 U.S. 1263 (1997), held that a demand letter
written by opposing counsel sufficed to trigger Rule 4(a)(6);
however, presumably this letter was mailed and qualified as service
under Rule 5(b) as contemplated by Rule 77(d). Finally, in Ryan v.
First Unum Life Ins. Co., 174 F.3d 302, 305 (2nd Cir. 1999), the
Second Circuit rejected Ryan’s contention that “notice of the
entry” in Rule 4(a)(6) contemplates only notice by mail. Although
Ryan’s rationale is problematic, its result is consistent with a
reading of Rules 4(a)(6), 5(b), and 77(d) that authorize service
upon a party’s attorney by delivery as well as by mail. Ryan’s
attorney received the copy of the judgment marked to indicate the
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date of entry in-hand from the clerk of court rather than by mail.
Id. at 305. The Second Circuit rejected Ryan’s argument that such
notice must have been mailed and must have been sent at the
prompting of the clerk or the adverse party. Id. Thus, Ryan is
readily distinguishable from the present case, as a personal
delivery to a party’s attorney is markedly different from a fax
transmission to an attorney’s fax phone number.
Additionally, although it is not relevant to my analysis of
this case, I disagree with the majority’s characterization of the
facts of this case. The majority repeatedly emphasizes that
Wilkens’s counsel received “in-hand” the faxed copy of the judgment
on the day of its transmission. However, as I read the record,
there is no conclusive evidence of such same-day, in-hand receipt.
Wilkens’s counsel avers in his affidavit only that “Toya McEwen of
the District Clerk’s office sent me a fax containing the Court’s
Memorandum Order, and Final Judgment.”
Accordingly, I conclude that (1) Wilkens did not receive
notice of the entry of judgment as required by Federal Rules of
Civil Procedure 77(d) and 5(b) so as to trigger Rule 4(a)(6)(A)’s
7-day period; (2) Wilkens’s motion for leave to file late notice of
appeal (construed as a motion to reopen the time to file an appeal)
was timely under Rule 4(a)(6)(A)’s 180-day period; (3) Wilkens’s
notice of appeal was timely filed within the 14-day window under
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Rule 4(a)(6); and, (4) we have appellate jurisdiction of this
appeal.
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