NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS C. HOY, No. 15-35819
Plaintiff-Appellant, D.C. No. 3:13-cv-01098-HZ
v.
YAMHILL COUNTY, a public MEMORANDUM*
municipality; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernández, District Judge, Presiding
Submitted July 10, 2017**
Portland, Oregon
Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,*** District
Judge.
1. The district court did not abuse its discretion in finding that Hoy lacked
“good cause” for the delay in filing his notice of appeal. Fed. R. App. P.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
4(a)(5)(A). To establish good cause, Hoy was required to show that the delay was
not his fault. See United States v. Navarro, 800 F.3d 1104, 1109 (9th Cir. 2015);
Fed. R. App. P. 4 Advisory Committee’s Note to 2002 Amendments. His
counsel’s failures are attributable to him for this purpose. Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396–97 (1993). Hoy’s counsel,
Samantha Copeland, waited until the day the notice of appeal was due before
allegedly attempting to file it. In her declaration, Copeland asserted that at 11:00
p.m., an hour before the deadline, she tried to file the notice of appeal but had
difficulty logging on to the CM/ECF system. Copeland said she was able to log on
the next day, but she still did not file the notice. Copeland claimed that she
believed the local rules gave her three extra days to file the notice. But she later
acknowledged she was wrong about that, and, as the district court noted, her
purported belief that she had three extra days is in tension with her effort to file the
notice at 11:00 p.m. on the day it was actually due. In light of Copeland’s account
of what happened, the district court’s conclusion that the delay was Copeland’s
fault (and therefore Hoy’s fault) was not an abuse of discretion.
2. Nor did the district court abuse its discretion in refusing to find that
Hoy’s delay was the product of “excusable neglect.” Fed. R. App. P. 4(a)(5)(A).
The district court considered all four aspects of the excusable neglect inquiry and
found that three of the four cut in Hoy’s favor. Pioneer, 507 U.S. at 395; Lemoge
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v. United States, 587 F.3d 1188, 1193–94 (9th Cir. 2009). But the remaining factor
(namely, the reasons for the delay, which are discussed in the preceding
paragraph), combined with the litany of errors and missed deadlines by Copeland
throughout the district court proceedings, supported the finding that Hoy’s neglect
was not “excusable.” Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004) (en
banc); Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000).
AFFIRMED.
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