[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 09, 2004
THOMAS K. KAHN
No. 04-10986 CLERK
D.C. Docket No. 94-00492-CV-J-20
ETHERIA VERDEL JACKSON,
Petitioner-Appellant,
versus
JAMES CROSBY, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(July 9, 2004)
Before TJOFLAT, BLACK and CARNES, Circuit Judges,
TJOFLAT, Circuit Judge:
I.
On December 15, 2003, the district court entered a final judgment in this
case denying petitioner habeas corpus relief from his conviction and sentence for
capital murder. On January 5, 2004, petitioner filed a motion to alter or amend
judgment pursuant to Federal Rule of Civil Procedure 59(e).1 The motion was
untimely because petitioner failed to file it within ten days of the entry of final
judgment as Rule 59(e) requires. On January 29, 2004, the district court entered a
1
Rule 59 authorizes motions for new trials and to alter or amend the judgment. Part (a)
of Rule 59 specifies the grounds for motions for a new trial. The portion of part (a) pertaining to
bench trials, such as evidentiary hearings in habeas corpus actions brought in the district courts,
states:
A new trial may be granted . . . in an action tried without a jury, for any of the reasons for
which rehearings have heretofore been granted in suits in equity in the courts of the
United States. On a motion for a new trial in an action tried without a jury, the court may
open the judgment if one has been entered, take additional testimony, amend findings of
fact and conclusions of law or make new findings and conclusions, and direct the entry of
a new judgment.
Part (e) of the rule, relating to motions to alter or amend judgment, states: “Any motion to alter
or amend a judgment shall be filed no later than 10 days after entry of the judgment.”
Attorneys Eric C. Pinkard and David R. Gemmer filed the Rule 59(e) motion on
petitioner’s behalf. In addition to requesting Rule 59(e) relief, the motion asked the district court
to hold the habeas proceeding in abeyance pending the Supreme Court's decision in Summerlin v.
Stewart, 341 F.3d 1082 (9th Cir. 2003), cert. granted sub nom Schriro v. Summerlin, 124 S. Ct.
833, 157 L. Ed. 2d 692 (Dec. 1, 2003), and to grant petitioner leave to amend his second
amended petition for a writ of habeas corpus so that he could present several substantive
constitutional claims (which the district court’s judgment had denied) as aspects of a new
ineffective assistance of counsel claim. According to petitioner, his attorney, in appealing his
conviction and sentence to the Florida Supreme Court, deprived him of his right to the effective
assistance of counsel when he failed to present these substantive constitutional claims in
petitioner’s brief. These issues are not before us because we are reviewing only the question of
our jurisdiction necessitated by the untimely filing of the motion. See infra, part II. For ease of
discussion, we refer to the motion in its entirety as petitioner’s “Rule 59(e)” motion.
2
written order stating that the motion was “DENIED.”2 On February 27, 2004,
petitioner filed a notice of appeal in the district court; the notice stated that he was
appealing the final judgment of December 15, 2003 and the order of January 29,
2004.
On April 7, 2004, this panel dismissed petitioner’s appeal of the December
15, 2003 judgment in an order containing the following language:
Appellant’s motion to alter or amend, made pursuant to Fed. R. Civ. P. 59(e)
was not filed within ten business days of and did not toll the appeal period
for the December 15, 2003, judgment. Fed. R. App. P. 4(a)(4)(A); Fed. R.
Civ. P. 6(a), 58, 60(b). Therefore the appeal is DISMISSED as to that
order.3
On April 20, 2004, petitioner moved this court to reconsider its April 7
order dismissing his appeal of the December 15, 2003 judgment.4 In his motion,
petitioner conceded that the Rule 59(e) motion he filed in the district court on
January 5, 2004 might be untimely. If untimely, he asks that we treat the motion
2
The order consisted of one sentence. The sentence contained no reason for the ruling.
3
Our April 7 order stated that petitioner’s notice of appeal was:
timely to appeal the district court’s January 29, 2004, order denying the Rule 59(e)
motion, construed as a motion under Fed. R. Civ. P. 60(b), for relief and the appeal MAY
PROCEED from that order. Rice v. Ford Motor Co., 88 F.3d 914 918-19 (11th Cir.
1996); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). The appeal
shall be limited to a determination of whether the district court abused its discretion in
denying the motion for relief and to set aside the judgment, and shall not extend to the
validity of the underlying order per se.
4
Eric C. Pinkard, one of the lawyers who filed petitioner’s Rule 59(e) motion in the
district court, filed petitioner’s motion for reconsideration.
3
as timely under the “unique circumstances” doctrine. He cites Willis v. Newsome,
747 F.2d 605 (11th Cir. 1984), in which we granted relief under that doctrine, and
states that the unique circumstances surrounding the filing of petitioner’s Rule
59(e) motion “fall[] squarely within the situation compelling relief in Willis.”
The “unique circumstances” petitioner relies on are set out in the affidavit of
one of the attorneys who filed his Rule 59(e) motion, David R. Gemmer. In his
affidavit, Gemmer states that “[o]ne of my tasks [in filing the Rule 59(e) motion]
was to determine the deadline for filing the motion.” To this end, he reviewed the
Federal Rules of Civil Procedure and the district court’s local rules. He
understood from that review that the Motion had to be timely filed within
ten days from the date of entry of the order in question. However, [he] also
was aware of Fed. R. Civ. P[.] 6 and Local Rule 4.20, which provided for
three additional days to file when there had been service of a notice or paper
by mail.[5] While the
5
In referring to Rule 6, Gemmer was apparently focusing on the provisions of part (e) of
the rule, which states:
Whenever a party has the right or is required to do some act or take some proceedings
within a prescribed period after the service of a notice or other paper upon the party and
the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days
shall be added to the prescribed period.
Rule 5 governs “Serving and Filing Pleadings and Other Papers.” Part (a), speaks, in pertinent
part, to “Service: When Required.”
Except as otherwise provided in these rules, every order required by its terms to be
served, every pleading subsequent to the original complaint unless the court otherwise
orders because of numerous defendants, every paper relating to discovery required to be
served upon a party unless the court otherwise orders, every written motion other than
one which may be heard ex parte, and every written notice, appearance, demand, offer of
judgment, designation of record on appeal, and similar paper shall be served upon each of
the parties. No service need be made on parties in default for failure to appear except that
4
pleadings asserting new or additional claims for relief against them shall be served upon
them in the manner provided for service of summons in Rule 4.
(emphasis added). Subparts (b)(2)(B), (C), and (D), respectively, authorize service [under part
(a)], by mail, by leaving a copy with the clerk of the court “if the person served has no known
address,” and by “other means, including electronic means.”
The district court’s order denying petitioner habeas corpus relief did not require “by its
terms” that it be “served” on the parties. The final judgment entered pursuant to that order on
December 15, 2003 was “set forth on a separate document,” as required by Federal Rule of Civil
Procedure 58. The clerk thereafter served copies of the order and final judgment on the parties as
required by Rule 77(d). It is important to note that the clerk’s failure to notify a party of the
issuance of an order or the entry of final judgment “does not affect the time to appeal or relieve
or authorize the court to relieve a party for 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). By
the same token, the fact that the clerk serves the parties by mail with notice of the entry of
judgment does not extend the time for filing a notice of appeal by three days pursuant to Rule
6(e).
For purposes of Rule 59(b) and (e)’s ten-day limitations periods, we focus on when the
judgment is entered, not when it is served. Fed. R. Civ. P. 59(b), (e) (stating that such motions
“shall be filed no later than 10 days after entry of the judgment” (emphasis added)). Rule 58
governs entry of judgment. Part (a)(1) requires, “Every judgment and amended judgment must
be set forth on a separate document . . . .” Part (a)(1) then lists exceptions to the separate
document requirement that are not applicable here. Part (b) states, in pertinent part:
Judgment is entered for purposes of these rules: . . .
(2) if Rule 58(a)(1) requires a separate document, when it is entered in the civil docket
under Rule 79(a) and when the earlier of these events occurs:
(A) when it is set forth on a separate document, or
(B) when 150 days have run from the entry in the civil docket under Rule 79(a).
In this case, Rule 58(a)(1) required a separate document for the December 15, 2003 judgment.
The judgment satisfied both prongs of Rule 58(a)(2) on December 15, 2003, when it was both
entered on the docket and set forth in a separate document. December 15 was therefore the date
the judgment was entered under Rule 58, and the date from which the Rule 59(e) limitations
period ran. Because Rule 6(e) only applies when a party “has the right or is required to do some
act or take some proceedings within a prescribed period after the service” (emphasis added),
while Rule 59(b) and (e) require action to be taken within “10 days after entry of the judgment,”
(emphasis added) Rule 6(e) can never extend the time for filing a Rule 59(b) or (e) motion.
Local Rule 4.20 provides:
(a) Pursuant to Fed.R.Civ.P. 6(a) and (e), whenever a period of time prescribed or
allowed by the Federal Rules of Civil Procedure or the Rules of the District Court of the
United States for the Middle District of Florida, or by any applicable statute is less than
eleven (11) days and there has been service of a notice or other paper upon a party by
mail, then the period of time which that party has to act shall be computed as follows:
(1) By first calculating the original prescribed period pursuant to Fed.R.Civ.P. 6(a); and
5
[December 15, 2003 judgment] had been mailed to [his office, he] was not
sure whether the local rule applied to the Motion. [He] either had no
knowledge or had no recollection of Cavaliere v. Allstate Insurance Co.,
996 F.2d 1111 (11th Cir. 1993).” [See infra part II.]
After reviewing the above rules, Gemmer telephoned “the office of the
Clerk in the Federal District Court . . . several days before December 31, 2003.”6
During his conversation with the woman who answered the telephone, he
mentioned Local Rule 4.20 and asked whether Local Rule 4.20 “applied. She
affirmatively told [him] that Local Rule 4.20 applied to [his] situation.”
Responding to his statement that he was having “problems with counting the
holidays,” she said that “December 25 and 26th were official court holidays, the
extra day being established by the President in a special order.” He then “counted
off the days accounting for the holidays and Rule 4.20 and determined that
Monday, January 5, 2004, would be the deadline for filing the [m]otion.” “Had
the clerk expressed any doubt . . . about the application of Rule 4.20, [he] would
(2) By then adding three (3) days to the original prescribed period pursuant to
Fed.R.Civ.P. 6(e). The three (3) days shall be calculated beginning with the day following
the last day of the original prescribed period, and shall be counted consecutively
regardless of whether any day of this three (3) day period is a Saturday, Sunday, or legal
holiday as defined in Fed.R.Civ.P. 6(a). The third day shall be treated as the last day of
the period unless it is a Saturday, Sunday, or legal holiday in which event the period runs
until the end of the next day which is not a Saturday, Sunday, or legal holiday.
M.D. Fla. Local R. 4.20.
6
Gemmer “did not obtain or recall the name of the clerk [he] spoke with.”
6
have conducted additional research, but her answer was clear, emphatic, and
unreserved, as was her affirmation that, accounting for holidays, weekends, and
Rule 4.20, January 5, 2004 was [his] deadline.” Nonetheless, “[b]oth the clerk and
[Gemmer] acknowledged that the clerk’s representations were not binding.”
Gemmer goes on to state that his
confidence that the motion had passed muster as timely was increased when
the state and the court addressed the Application for Certificate of
Appealability substantively [i.e., for the purpose of identifying claims that
satisfied the criterion of 28 U.S.C. § 2253(c)(3)] , rather than dismissively
as based on a void notice of appeal. This buttressed [his] belief that the
denial of the Motion to Alter or Amend was based on the merits.
In the body of his motion for reconsideration, petitioner urges that, in
determining whether the unique circumstances doctrine applies, we should take
into account, in addition to what Gemmer says in his affidavit, the following
factors.7 First, the State, in responding to his Rule 59(e) motion, did not contend
that it was untimely. “Had it done so in a timely fashion . . . , [petitioner] could
have filed the Notice of Appeal in a timely fashion.” Second,
[h]ad the trial judge denied the Motion for untimeliness January 27, 2004,
[petitioner] would have had more than two weeks to seek relief for
excusable neglect under Fed. R. App. P. 4(a)(5). Instead, the lack of any
objection or notice of the issue in this case lulled counsel into proceeding on
7
If petitioner is correct that under Local Rule 4.20, his Rule 59(e) motion was timely,
application of the unique circumstances doctrine is unnecessary. He invokes the doctrine as a
cautionary measure, realizing that Local Rule 4.20’s application is problematic.
7
the schedule based on the assumption the Rule 59(e) motion was timely.
II.
A notice of appeal challenging the final judgment in a civil action must be
filed no later than thirty days after the judgment is entered on the district court’s
docket. Fed. R. App. P. 4(a)(1)(A). A timely Rule 59(e) motion to alter or amend
the judgment automatically tolls this thirty-day period, so that it begins to run from
the date of the order denying the motion. Fed. R. App. P. 4(a)(4)(A).8 The
motion to alter or amend the judgment is timely if filed “no later than 10 days after
entry of judgment.” Fed. R. Civ. P. 59(e); see Advanced Estimating Sys., Inc. v.
Riney, 77 F.3d 1322, 1323 (11th Cir. 1996) (“Untimely motions under Rule[] 59
. . . will not toll the time for filing an appeal.”).
Because the time period for filing a motion to alter or amend the judgment
is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are
not included in the computation. Fed. R. Civ. P. 6(a). Legal holidays include,
inter alia, Christmas Day, New Year’s Day, and “any other day appointed as a
8
Federal Rule of Appellate Procedure 4(a)(4)(A) also tolls the time for filing a notice of
appeal when the appellant moves the district court for the entry of judgment under Rule 50(b), to
amend or make additional factual findings under Rule 52(b), for attorney’s fees under Rule 54,
for a new trial under Rule 59, or for relief under Rule 60 “if the motion is filed no later than 10
days after the judgment is entered.” When one of these motions is filed, the time for filing an
appeal challenging the final judgment runs “from the entry of the order disposing of the last such
remaining motion.” Fed. R. App. P. 4(a)(4)(A).
8
holiday by the President or the Congress of the United States . . . .” Id.
In this case, the judgment was entered on Monday, December 15, 2003. To
toll the time for filing an appeal, petitioner’s motion to alter or amend the
judgment had to have been filed by Tuesday, December 30, which was ten days
later, not counting two weekends and Christmas Day. The motion was actually
filed on January 5, 2004.9 The motion was therefore untimely and did not toll the
time for filing a notice of appeal from the December 15 judgment. Accordingly,
the notice of appeal was due, as prescribed by Federal Rule of Appellate
Procedure 4(a)(4)(A), on January 14, 2004, which was thirty days after the entry of
the December 15 judgment. The notice of appeal petitioner filed on February 27,
2004 was therefore untimely.
According to his affidavit, Gemmer believed that “Fed. R. Civ. P[.] 6 and
Local Rule 4.20 . . . provided for three additional days to file when there had been
service of a notice or paper by mail.” He had received the December 15, 2003
9
According to petitioner, the motion was timely if one takes into account three days
under Local Rule 4.20 and December 26 as a “day appointed as a holiday by the President.” See
Fed. R. Civ. P. 6(a). In his affidavit, Gemmer states that the clerk’s office employee with whom
he spoke over the telephone told him that the President had appointed December 26 a holiday.
The record does not indicate whether December 26 was in fact such a holiday, and we decline to
take judicial notice of the matter on our own initiative. Whether December 26 was a declared
holiday is of no moment, however. Petitioner fails to convince us that Local Rule 4.20 provided
him three extra days to file his Rule 59(e) motion. In short, even if December 26 was a holiday
ordered by the President, petitioner had to file his motion no later than Wednesday, December
31, 2003.
9
judgment by mail; nevertheless, he was “not sure whether the local rule applied to
[his Rule 59(e)] Motion.”
The Rule 6 provision Gemmer was referring to is part (e), which we quote
in the margin. See supra note 5. Gemmer was unfamiliar with our decision in
Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th Cir. 1993). Had he read it, he
would have discovered that the appellant there, Cavaliere, made the same
argument about Rule 6(e) that he and his co-counsel advance here. Cavaliere
argued that because the final judgment was “served” by the clerk of the court by
mail,10 Rule 6(e) provided him with three extra days to file his Rule 50(b) motion
for new trial. We rejected Caviliere’s argument. We held that Rule 6(b), which
bars the district court from “extend[ing] the time for taking any action under Rules
50(b) . . . and [59](e),” renders Rule 6(e) ineffective with respect to the time for
filing Rule 59 motions. Given this holding, is petitioner’s argument that Local
Rule 4.20 provided him with three extra days for filing his Rule 59(e) motion
valid? The answer has to be no.
10
The panel’s opinion in Cavaliere does not indicate whether Cavaliere contended that
he received the final judgment by mail. According to the opinion, his argument was “as follows:
Under Rule 77(d), the court clerk was required to serve the judgment on Cavaliere by mail;
Cavaliere had the ‘right’ to file his motion for a new trial ‘within a prescribed period’; therefore,
Cavaliere was entitled to three extra days.” 996 F.2d at 1113. The fact that Rule 77(d) requires
the clerk to notify the parties of the entry of final judgment does not extend the time for filing a
notice of appeal and, thus, the time for filing a Rule 59 motion. See supra note 5.
10
The district court promulgated Local Rule 4.20 under the authority provided
by 28 U.S.C. § 2071(a), which states:
The Supreme Court and all courts established by Act of Congress
may from time to time prescribe rules for the conduct of their
business. Such rules shall be consistent with Acts of Congress and
rules of practice and procedure prescribed under [28 U.S.C. § 2072].
(emphasis added.). Federal Rule of Civil Procedure 6 (and each of its subparts)
was prescribed under § 2072. Rule 83 states in part (a) that “[a] local rule shall be
consistent with—but not duplicative of—Acts of Congress and rules adopted
under 28 U.S.C. §2072 . . . .” Local Rule 4.20, to the extent it is inconsistent with
Rule 6(e), is therefore invalid. Local Rule 4.20’s allowance of three extra days for
filing Rule 59 motions is inconsistent with Rule 6(b)’s ban on extending the rule’s
ten-day limitations period and is therefore a nullity. In sum, petitioner’s Rule
59(e) motion was untimely.
III.
Petitioner asks that we treat his motion as timely under the “unique
circumstances” doctrine. The unique circumstances doctrine excuses a litigant’s
failure to abide by the jurisdictional time limitations established by the rules, such
as the ten-day limitations period prescribed by Rule 59, when the failure is caused
by the litigant’s reasonable reliance on a specific assurance by a judicial officer.
11
Hollins v. Dep’t of Corr., 191 F.3d 1324, 1327 (11th Cir. 1999). In determining
whether the doctrine should be invoked, we focus on “the reasonableness of the
appellant’s reliance on the action of the district court.” Pinion v. Dow Chem.,
U.S.A., 928 F.2d 1522, 1532 (11th Cir. 1991). “[A]ny judicial action prior to the
expiration of the relevant time period for appeal that could have lulled the
appellant into inactivity may permit our application of the doctrine.” Hollins, 191
F.3d at 1327 (citing Pinion, 928 F.2d at 1529) (marks and citations omitted).
The unique circumstances petitioner cites are set out in Gemmer’s affidavit
and the body of petitioner’s motion for reconsideration. Reduced to their
essentials, they are: (1) that Gemmer obtained the assistance of someone in the
clerk’s office to calculate the number of days he had in which to file petitioner’s
Rule 59(e) motion; specifically, the holidays that were to be counted and whether,
under Rule 6(e) and Local Rule 4.20, he had three extra days, in addition to the ten
days provided by the rule, to file the motion; (2) that the State did not object to the
motion as untimely; and (3) that the district court, in denying the motion, did not
do so on the ground that it was untimely filed.
The facts petitioner relies upon to satisfy the unique circumstances inquiry
mirror those relied upon by appellant Dow Chemical in Pinion. If anything, Dow
Chemical presented a stronger case for the application of the doctrine than
12
petitioner has. In Pinion, the district court, giving effect to the jury’s verdict,
entered a $2,450,000 judgment against Dow Chemical. 928 F.2d at 1524. Two
days later, Dow Chemical presented the court with a consent order (signed by
counsel for Dow Chemical and the plaintiffs) purporting to give Dow Chemical a
thirty-day extension to file post-trial motions. Id. The court signed that consent
order and another consent order several weeks later. Id. Within the time provided
by the second extension, Dow Chemical filed a motion for judgment
notwithstanding the verdict pursuant to Rule 50(b) of the Federal Rules of Civil
Procedure and, alternatively, a motion for new trial pursuant to Rule 59. Id. The
court denied both motions, and Dow Chemical appealed. Id.
Dow Chemical filed its notice of appeal ninety-six days after the entry of
final judgment, long after the thirty-day appeal period Rule 4(a) of the Federal
Rules of Appellate Procedure provides.11 Although the plaintiffs did not question
our jurisdiction to entertain the appeal, we did so own our own initiative. Id.
After concluding that Dow Chemical’s post-trial motions were untimely and
thus did not toll the time for taking an appeal under Rule 4(a), we launched into
the unique circumstances inquiry, assessing the “reasonableness of [Dow
11
The notice of appeal was so late that any extension Federal Rule of Appellate
Procedure 4(a)(5) may have provided was unavailable.
13
Chemical’s] reliance on the action of the district court.” Id. at 1532. Specifically,
“[w]as it reasonable for Dow to rely upon the district court’s improper extension
of the time for filing post-trial motions, in spite of the explicit language of Rule
6(b) prohibiting the district court from granting such an extension?” Id. Our
answer was clear: “When the problem is framed in this manner, we must answer
‘No.’” Id. “[T]he more apparent it becomes that the party’s filing error stems as
much from the party’s own negligence in simply not reading or inquiring about the
Rules, as it does from actual reliance on some action by the district court, the
circumstances become far less ‘unique.’” Id. at 1533.
In Pinion, counsel admitted that they “‘inadvertently overlooked the Rule
6(b) prohibition.’” Id. In the case at hand, petitioner’s counsel was similarly
neglectful, overlooking Rule(6)(b)’s prohibition and our decision in Cavaliere. In
Pinion, we cited the Third Circuit’s comments in a case presenting a similar
scenario:
The unique circumstances doctrine has never been extended to an
attorney’s miscalculation of the applicable time limits, and we see no
reason to do so here even if the trial judge also shared that incorrect
assumption.
Id. (quoting Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1365-66 (3d Cir.
1990)). We also cited a Tenth Circuit case for the proposition that an attorney
14
cannot reasonably rely on an improper enlargement of the time to file a notice of
appeal “in light of his ‘duty to familiarize himself with the appellate rules.’” See
id. (quoting Certain Underwriters at Lloyds of London v. Evans, 895 F.2d 1255,
1257-58 (10th Cir. 1990)). In rejecting the argument that counsel were justified in
relying on the district court’s unlawful ruling, the Certain Underwriters court said:
counsel either “knew or should have known” that the district court had exceeded
the maximum allowable extension under App. Rule 4(a)(5). 896 F.2d at 1258. So,
too, in Pinion: counsel were not entitled to rely on the district court entry of an
order extending the ten-day period for filing post-trial motions under Rules 50(b)
and 59. To this effect we cited a Seventh Circuit observation in “United States v.
Hill, 826 F.2d 507, 508 (7th Cir. 1987) (‘The Supreme Court has not held or even
hinted that a defendant’s own neglect, or that of his lawyer, extends a
jurisdictional time limit.’).” Pinion, 928 F.2d at 1533.
Pinion makes clear that it was unreasonable for petitioner’s counsel to rely
on the State’s failure to oppose petitioner’s Rule 59(e) motion as time-barred or to
read the district court’s denial of the motion as a ruling on its merits. And, if
counsel in Pinion could not rely on the district court’s extension orders, certainly
counsel in this case could not rely on an unknown clerk’s office employee’s
statement that Local Rule 4.20 gave counsel three extra days to file petitioner’s
15
motion, especially after the employee told counsel, in Gemmer’s words, that her
“representations were not binding.”12
Precedent requires that we deny petitioner’s motion for reconsideration. It
is, accordingly,
DENIED.
12
Petitioner argues that Willis v. Newsome, 747 F.2d 605 (11th Cir. 1984), in which we
provided relief under the unique circumstances doctrine, dictates our decision. We disagree. The
circumstances in that case and the circumstances here cannot reasonably be considered
analogous. There, “the district court’s filing clerk” told appellant’s attorney that appellant’s
notice of appeal would be stamped filed on the date he placed the notice in the United States
mails. Id. at 606. In essence, what the filing clerk told counsel was that the post office was a
repository of the clerk’s office, a representation that counsel could neither affirm nor refute by
consulting the Federal Rules of Procedure or the case law.
16
BLACK, Circuit Judge, specially concurring:
Because this is a capital case, I find the result reached today very troubling.
Ultimately, however, the facts in this case do not permit us to apply the “unique
circumstances” doctrine.
There was no reliance upon a representation or order from the district court.
See Butler v. Coral Volkswagen, Inc., 804 F.2d 612, 613 (11th Cir. 1986)
(discussing petitioner’s reliance on the district court’s extension of the time in
which a new trial motion could be amended); Inglese v. Warden, U.S.
Penitentiary, 687 F.2d 362, 362–63 (11th Cir. 1982) (discussing petitioner’s
reliance on the district court’s order extending the time in which a Rule 59(e)
motion could be filed). Nor was there reliance on assurances received from the
clerk’s office pertaining to the administrative functions of the clerk’s office, about
which attorney familiarity could not be presumed. See Hollins v. Department of
Corrections, 191 F.3d 1324, 1326 (11th Cir. 1999) (observing that the district
court’s PACER system failed to show the district court’s entry of a final order);
Willis v. Newsome, 747 F.2d 605, 606 (11th Cir. 1984) (noting that the clerk’s
office gave assurances regarding “local custom” and practice for stamping notices
of appeal).
Here, Petitioner’s counsel called and asked the clerk for legal
17
advice—specifically, how to interpret the procedural rules regarding the time for
filing a Rule 59(e) motion. Petitioner thus did not rely on either representations
made by the district court or assurances from the clerk’s office pertaining to an
administrative function.
The “unique circumstances” doctrine does not permit us to reassign the
lawyer’s obligation to read the relevant rules and case law. In other words, it is
not the responsibility of the clerk’s office to inform the lawyer of the law. See
Rezzonico v. H & R Block, Inc., 182 F.3d 144, 152 (2d Cir. 1999) (finding no
unique circumstances where appellants relied on representations from the clerk’s
office involving legal matters). As we have previously noted, even in a case as
grave as this, an equitable remedy such as the “unique circumstances” doctrine
does “not exist merely to rehabilitate attorney oversight or inadvertence.” Pinion
v. Dow Chemical, U.S.A., 928 F.2d 1522, 1534 (11th Cir. 1991). Therefore, I must
very reluctantly join in the opinion.
18
CARNES, Circuit Judge, specially concurring:
Like Judge Black, I’m not fond of the result in this case but recognize that
the law and the facts with which we are presented require it.
This would-be appellant has an experienced attorney who serves as
Assistant Capital Collateral Regional Counsel-Middle Region of Florida.
Experienced as this counsel is, he screwed up. If one credits his affidavit, which
given the present posture of the case we must, he unjustifiably sought and relied
upon the advice of an unidentified person in the local clerk’s office when he could
and should have found the answer to his legal question himself. Not only that, but
his affidavit discloses that both the person in the clerk’s office and counsel
acknowledged during their telephone conversation “that the clerk’s representations
were not binding.”
In these circumstances, reliance upon that advice was unreasonable to say
the least, and more to the point, it is outside our unique circumstances doctrine.
See Pinion v. Dow Chem. U.S.A., 928 F.2d 1522 (11th Cir. 1991); Willis v.
Newsome, 747 F.2d 605, 606 (11th Cir. 1984). If counsel had sufficiently
researched the matter about which he had a question, as he should have, he would
have turned up our decision in Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th
Cir. 1993), and Fed.R.Civ.P. 83(a)(1). Instead, he put at risk his client’s right to
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appeal the judgment against him in return for the prospect of gaining a few days
extra time for filing a Rule 59(e) motion.
If this were a case involving two corporations, we would apply the
established rules, which require that we dismiss the appeal, and would do that with
little or no discussion. What has brought forth more in response to the motion for
reconsideration in this case is the fact that the party whose appeal is being
dismissed is on death row, and the judgment he is seeking to appeal is one denying
him federal habeas relief. That makes us as judges want to hear and decide the
appeal instead of dismiss it for lack of jurisdiction because of an untimely notice
of appeal. However, the rules relating to timeliness of filing and appellate court
jurisdiction apply without respect to the identity of the parties or the nature of the
case. We do not have one set of rules for petitioners and their attorneys in capital
cases and another set for everyone else.
As judges we are obligated to follow the law, regardless of whether we
personally like the result of doing so. We have done that.
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