dissenting.
I respectfully dissent both from the en banc order and from the majority’s disposition.
Taking this case en banc in order to overrule Michaels v. Chappell, 279 F.2d 600 (9th Cir. 1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961), seems to me plainly unnecessary.
Michaels held that a pleader who intentionally tailors his complaint so as to charge a governmental official with engaging in tortious conduct in his individual, not official, capacity is not charging him officially; that is, the complaint does not charge “the United States or an officer or agency thereof,” within the meaning of Rule 4(a) of the Federal Rules of Appellate Procedure; and that if such a plaintiff appeals from an adverse decision of a district court, he must file his notice of appeal within 30, not 60, days. That seems to me a clear, understandable and entirely workable rule of procedure.
The Michaels court reasoned that, given plain English language meaning, allegations that federal agents “were acting completely without authority throughout,” Id. at 601, means that they were doing things as individuals. When the appellant there *1349lost after engineering his way into federal court and then further neglected to file a timely notice of appeal within 30 days, he tried to invoke the enlarged period of 60 days (which is reserved for cases where people sue or are sued by the government). He said that his allegations really ought to be read as if he had charged the agents as “officers of the United States, * * * because [ajcting ‘in excess of authority,’ * * * is different than acting ‘outside of authority.’ ” Id. at 602. That panel 20 years ago, remarkably unpersuaded by “such a hot and cold change of position,” simply rejected it. Id. Today’s en banc majority, however, scanning quite analogous language, sees it differently. The district court found that plaintiffs had fashioned their language specifically so as to charge individual, not official, conduct for the simple reason that plaintiffs foresaw the adverse consequences of suing their superiors as officials. Nonetheless, the majority in a feat of true Delphic skill has uncovered inferences and nuances of meaning which signify that official action is truly at issue.
I do not think Michaels can be as easily distinguished as does the majority; but if they are right in thinking so, there was a simple way of avoiding taking this case en banc. The original panel declined to construe Michaels differently and asked for en banc review. The majority here finds the difference which the panel could not see. If so, this appeal is not untimely and Michaels is not a bar. But instead of pursuing the route of avoiding the precise obstacle which its rationale had just circumvented, the court yields to the temptation to decree new meaning to FRAP 4(a)(1), a labor most uncompelled.
By failing to distinguish Michaels, the majority of course must deal with an untimely notice of appeal. But this does not call for revising the rule of overruling precedent because there exists otherwise a ready basis of appellate jurisdiction. A district court has power under Rule 60(b) of the Federal Rules of Civil Procedure to extend the time for filing notice of appeal upon a showing of excusable neglect or good cause.1 In the form in which the rule existed when this appeal, was noticed, we have routinely disposed of untimely issues by way of dismissal without prejudice to an appellant’s right to renew upon a proper showing, by remanding to the district court for a determination whether the tardiness was deliberate or excusable. Such a practice protects respect for the appellate process and gives appropriate deference to the trial court’s better opportunity of weighing the nature of the delay. It is common practice in this and other circuits.2 Moreover, even where an appellate court dismisses outright on account of untimeliness, the party may move to the district court for an extension, again upon a good cause showing. See United States v. McKnight, 593 F.2d 230, 233 (3d Cir. 1979); id. at 233, 234 (Adams, J., dissenting); cf. Salazar v. San Francisco Bay Area Rapid Transit District, supra, 538 F.2d at 270.
We did not follow that practice here. The majority explains instead that we took this case en banc because “The Michaels decision has fostered confusion of the jurisdictional and substantive issues by making the time for appeal turn upon the form of pleading.” At 1347. Much could be spoken of justification for determining jurisdiction, timeliness and other important aspects of the court process, on the basis of the pleadings but it is unnecessary so to speak. My research indicates that Michaels *1350has been cited only twice since it came down in 1960. See NeSmith v. Fulton, 615 F.2d 196, 198 (5th Cir. 1980); In re O’Bryan, 399 F.2d 916, 918 (10th Cir. 1968). Neither of these cases has intimated disapproval of the holding which the majority now overrules. Thus, it is difficult to identify the source of the confusion which is said to have been fostered and which calls for departure from a settled and workable practice. If Michaels has ever confused anyone other than the appellants here, it has most certainly not been objectively indicated.
It was of course as certain as yesterday that once the decision was made to restructure (for this circuit) FRAP 4(a), the lack of merit of the appeal itself would become fairly obvious for reasons already stated by the district judge. It is therefore a matter of some curiosity that, instead of finishing the job, the majority has remanded the case to the original panel which must now reconvene to pronounce the indicated last rites. Thus, two panels have on three occasions had to devote the collective energies of a majority of the active judges of this court on an appeal which could long ago have been terminated.
This overlong dissent, itself of questionable economy, has been prompted by concern that our court, with its formidable backlog, has expended its energies on judicial rule-making of dubious priority. Although the temptation is strong to gussy up3 our creaking system, part of whose judicial administration is, albeit briefly, let to us, this effort was simply not that urgent. Rather than detouring , to overrule old precedents deemed faded in the new light of hindsight, I think our resources were better deployed against the important challenges with which in abundance this court is already confronted.
. See e. g., Selph v. Council of the City of Los Angeles, 593 F.2d 880, 882-83 (9th Cir. 1979); United States v. Stolarz, 547 F.2d 108, 111 (9th Cir. 1976) (applied to Rule 4(b)); Salazar v. San Francisco Bay Area Rapid Transit District, 538 F.2d 269, 270 (9th Cir.) cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).
. See, e. g., Craig v. Garrison, 549 F.2d 306 (4th Cir. 1977) (mem.); United States v. Stolarz, supra, 547 F.2d at 111; Seshachalam v. Creighton University School of Medicine, 545 F.2d 1147 (8th Cir. 1976); Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975) (per curiam); Alley v. Dodge Hotel, 501 F.2d 880 (D.C.Cir. 1974); Brainerd v. Beal, 498 F.2d 901 (7th Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 664 (1974); Tuley v. Heyd, 492 F.2d 788 (5th Cir. 1974) (per curiam); Reed v. Michigan, 398 F.2d 800 (6th Cir. 1968) (per curiam) (Rule 73(a), predecessor to Rule 4(a).
. According to The Random House College Dictionary, First Edition, 1980: 1. To dress in one’s best clothes (usually fol. by up).