Oregon v. Champion International Corp.

PER CURIAM:

The State of Oregon appeals the district court’s denial of its motion for extension of time in which to file a notice of appeal under Fed.R.App.P. 4(a)(5). The district court entered final judgment dismissing Oregon’s claims on May 15,1980. On June 10, counsel for the State of Oregon prepared and mailed a notice of appeal, but through inadvertence or clerical error addressed the envelope to a state court. The notice of appeal arrived at the district court on June 17, one day after the thirty-day time limit *1301for filing a notice of appeal. Appellees received a copy of the notice within the thirty-day period. The district court denied Oregon’s timely motion pursuant to Fed.R. App.P. 4(a)(5) to extend the period for filing a notice of appeal.

The issue presented is whether the district court abused its discretion in determining that the circumstances of this case did not justify a finding of “excusable neglect” under Rule 4(a)(5). Although the Rule allows an extension of time upon a showing of excusable neglect or “good cause,” the latter is applicable only where a motion is filed before the extension of the thirty-day period. The good cause language was added to the Rule by a 1979 amendment because the excusable neglect standard “never fit exactly the situation in which the appellant seeks an extension before the expiration of the initial time.” Advisory Committee Notes to 1979 amendment to Fed.R. App.P. 4(a)(5); see 9 Moore’s Federal Practice ¶ 204.13[1. — 1] (2d ed. 1980). Since Oregon’s motion was filed after the initial time had expired, an extension was permissible only upon a showing of excusable neglect.

The standard for determining excusable neglect is “a ‘strict’ one.” Selph v. Council of Los Angeles, 593 F.2d 881, 883 (9th Cir. 1979) (quoting Advisory Committee Notes to 1966 amendment to Fed.R. Civ.P. 73, the predecessor of Fed.R.App.P. 4(a)). It was intended to apply only to “extraordinary cases where injustice would otherwise result.” In re Estate of Butler’s Tire & Battery Co., 592 F.2d 1028,1034 (9th Cir. 1979) (quoting Advisory Committee Notes to 1966 amendment to Fed.R.Civ.P. 73). Inadvertence or mistake of counsel does not constitute excusable neglect. Sprout v. Farmers Insurance Exchange, 681 F.2d 587 (9th Cir. 1982); Butler’s Tire, 592 F.2d at 1034. See In re Donnell, 639 F.2d 535, 539 (9th Cir. 1981). Nor does clerical error by counsel’s staff. Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir. 1978) (per curiam). See Selph, 593 F.2d at 883. Compare Marshall v. Laucarte, 632 F.2d 1196, 1197 (5th Cir. 1980). Extending the excusable neglect exception to clerical errors of counsel or counsel’s staff would be inconsistent with the Advisory Committee’s intent to limit the exception to extraordinary cases and would thwart the Rule’s purpose of promoting finality of judgments. See Selph,. 593 F.2d at 882; Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir. 1976); Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).

None of the cases relied upon by appellants holds to the contrary. In Stirling v. Chemical Bank, 511 F.2d 1030,1032 (2d Cir. 1975), and Evans v. Jones, 366 F.2d 772, 773 (4th Cir. 1966), the Second and Fourth Circuits remanded to the respective district court for a determination whether excusable neglect was shown. In Doctor v. Seaboard Coast Line Railroad, 540 F.2d 699, 704 (4th Cir. 1976), the Fourth Circuit expressly refused to consider the issue of timeliness of the notice of appeal.

The district court did not abuse its discretion in finding the inadvertent mistake in addressing the notice of appeal was not excusable neglect under Fed.R.App.P. 4(a)(5).

AFFIRMED.