UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60366
J.C. BASS; CHARLENE B. BASS,
Plaintiffs-Appellants,
VERSUS
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
Defendants.
UNITED STATES DEPARTMENT OF AGRICULTURE; DANIEL GLICKMAN, Secretary
of the U.S. Department of Agriculture; NATIONAL APPEALS DIVISION,
formerly known as National Appeals Staff of the U.S. Department of
Agriculture; FARM SERVICE AGENCY, formerly known as Farmers Home
Administration of the U.S. Department of Agriculture; KEITH KELLY,
Administrator of the Farm Service Agency of the U.S. Department of
Agriculture; NORMAN G. COOPER, Director of the National Appeals
Division of the U.S. Department of Agriculture,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Mississippi
May 23, 2000
Before WIENER, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:
Appellants, J.C. and Charlene Bass (collectively “Bass”),
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appeal a summary judgment for the defendants in this Administrative
Procedures Act suit challenging the Farm Service Agency’s (“FSA”)
appraisal of farm property. We affirm.
I. FACTS AND PROCEDURAL HISTORY
This case involves a dispute over the way in which the FSA
established the repurchase price for farm land that Bass conveyed
to the FSA when he became unable to repay FSA-financed loans.1 The
property at issue consists of 531 acres located in Amite County,
Mississippi. Bass farmed the land beginning in 1966. In 1977,
Bass financed the land through the FSA. Because of financial
reverses in 1990, Bass entered into an agreement to deed the farm
to FSA in exchange for forgiveness of the debt. The parties agreed
that FSA would lease the farm back to Bass with an option to
repurchase, pursuant to the FSA’s “leaseback/buyback” program,
authorized by the Consolidated Farm and Rural Development Act
(“CONACT”), 7 U.S.C. § 1921-2009 (1994).
In 1996, Bass notified FSA that he intended to exercise the
repurchase option. A dispute arose concerning the value of the
farm. After extensive administrative proceedings, Bass sought
judicial review of the valuation ruling by the Director of the
USDA’s National Appeals Division (“Director”). The district court
1
The FSA was formerly known as the Farmers Home Administration
(FmHA), an agency of the U.S. Department of Agriculture (USDA).
For simplicity, the agency is referred to as FSA throughout this
opinion.
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entered summary judgment for defendants and this appeal followed.
II. TIMELINESS OF MOTION TO REOPEN APPEAL PERIOD
The district court entered judgment on November 10, 1998. On
November 19, Bass retained new counsel who moved for
reconsideration. On November 20, Bass’s new counsel filed a notice
of appearance, giving as his address “300 West Claiborne, Avenue,
Greenwood, Mississippi.” Defendants opposed the motion for
reconsideration and on December 28, 1998, Bass’s counsel moved for
an enlargement of time to file a rebuttal to defendants’
opposition. The district court granted this motion, but the clerk
mailed a copy of the order to Bass’s counsel at “P.O. Box 1350,
Greenwood, Mississippi.” The order was returned to the clerk’s
office “not deliverable as addressed.”
On January 20, 1999, the district court entered an order
denying Bass’s motion for reconsideration. The docket sheet
indicates that copies of the order were mailed, and there is no
“undeliverable” notation in the docket with respect to service of
the order on Bass’s counsel. On May 27, 1999, Bass’s counsel filed
a notice of appeal. Counsel also filed an affidavit averring that
on the morning of May 26, 1999, he received a telephone call from
Mr. Bass advising him that the court had entered an order denying
the motion for reconsideration. Counsel contacted the district
court clerk’s office on May 26, and was advised by the docketing
clerk that the order had been entered on January 20, 1999, and a
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copy mailed to him at “P.O. Box 1350.” Counsel averred that he had
not received the order, had not used that address since 1997, and
that he had provided the clerk with his correct address.
On June 3, 1999, counsel for Bass filed a motion to reopen the
time for appeal, pursuant to FED. R. APP. P. 4(a)(6). The motion
was accompanied by counsel’s affidavit, in which he stated that he
received a copy of the order denying reconsideration in the mail on
May 28, 1999. On June 22, 1999, counsel for Bass filed a second
notice of appeal.
Federal Rule of Appellate Procedure 4(a)(1)(B) requires that
the notice of appeal in a civil action in which the United States
is a party be filed within 60 days of entry of the judgment or
order from which appeal is taken. A timely motion to alter or
amend a judgment under FED. R. CIV. P. 59(e) suspends the time for
filing a notice of appeal until entry of an order disposing of the
motion. FED. R. APP. R. 4(a)(4).
There is no motion for “reconsideration” in the Federal Rules
of Civil Procedure. See Hamilton Plaintiffs v. Williams
Plaintiffs, 147 F.3d 367, 371 n.10 (5th Cir. 1998). However, a
motion for reconsideration filed within ten days of the district
court’s judgment is construed as a Rule 59(e) motion that suspends
the time for filing a notice of appeal. See id. Because Bass’s
motion was filed on November 19, within ten days of the November 10
judgment, we construe it as a Rule 59(e) motion, which suspended
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the time for filing an appeal from the underlying judgment. See
id; see also Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc.,
784 F.2d 665, 667 (5th Cir. 1986). Bass’s notice of appeal was
therefore due sixty days from the date the court entered its order
denying the motion for reconsideration, or sixty days from January
20, 1999. Bass’s notice of appeal, filed May 27, 1999, was
therefore untimely.
We must next determine whether the district court abused its
discretion in granting Bass’s motion to extend the period for
filing his notice of appeal. See United States v. Clark, 51 F.3d
42, 43 (5th Cir. 1995). Under Rule(4)(a)(6), a district court may
reopen the time to file an appeal for 14 days after the order to
reopen is entered, if “the motion is 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,” the
moving party did not receive notice of the entry of judgment sought
to be appealed within 21 days after entry, and no party would be
prejudiced. Bass’s motion was filed within 180 days after entry of
the January 20, 1999 order. However, because the time to reopen
runs from the earlier of the two dates, the issue becomes whether
Bass’s motion to reopen the appeal period was filed within 7 days
after Bass’s counsel “received notice” of entry of the order
denying his motion for reconsideration.
In order to determine whether the motion was timely it is
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necessary to determine whether counsel received notice on May 26,
when he learned of the order over the telephone and orally
confirmed entry with the district court clerk, or whether he is
deemed to have received notice on May 28, when he received a
written copy of the order in the mail. The appellate computation-
of-time rules provide that “in computing any period of time
specified in these rules . . . [e]xclude intermediate Saturdays,
Sundays, and legal holidays when the period is less than 7 days .
. . .” FED. R. APP. P. 26(a). If the seven-day filing period was
triggered on May 26, then in accordance with Rules 4(a)(6) and
26(a) the motion was due to be filed June 2, and the motion filed
on June 3 was untimely. If the seven-day period was triggered on
May 28 when Bass’s counsel received a written copy of the order,
the motion was timely.
This circuit has not expressly held whether “receives notice”
under Rule 4(a)(6) means acquiring knowledge of facts through oral
communication which would lead a prudent person to make inquiry or
the receipt of written notice. Some circuits have expressly held
that the seven-day period is triggered only by receipt of written
notice. See, e.g., Scott-Harris v. City of Fall River, 134 F.3d
427, 433 (1st Cir. 1997), rev’d on other grounds, Bogan v. Scott
Harris, 523 U.S. 44 (1998); Benavides v. Bureau of Prisons, 79 F.3d
1211, 1215 (D.C. Cir. 1996); Avolio v. County of Suffock, 29 F.3d
50, 53 (2d Cir. 1994). On the other hand, the Eighth and Ninth
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Circuits speak in terms of “actual notice,” without expressly
taking a position on whether oral notice is enough. See Nunley v.
City of Los Angeles, 52 F.3d 792, 794 (9th Cir. 1995)(actual notice
consisted of attorney reviewing a docket sheet in the clerk’s
office); see also Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357
(8th Cir. 1994).
We are convinced that “the better perception is that the rule
requires written notice.” 16A WRIGHT, MILLER, & COOPER, FEDERAL PRACTICE
& PROCEDURE: JURISDICTION 3D § 3950.6 (West 1999). Both the rule itself
and policy concerns support this conclusion.
First, Appellate Rule 4(a)(6) and Civil Rule 77(d)2 must be
read in pari materia. See Scott-Harris, 134 F.3d at 433. 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
2
Federal Rule of Civil Procedure 77(d) provides:
Notice of Orders or Judgements.
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 failure to appeal within the time allowed,
except as permitted in Rule 4(a) of the Federal Rules of
Appellate Procedure.
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except as permitted in Rule 4(a),” FED. R. CIV. P. 77(d)(emphasis
added), that reference contemplates lack of written notice. See
Scott-Harris, 134 F.3d at 433. Second, the Advisory Committee’s
Notes tell us that Rule 4(a)(6)
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)], 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(a)(6) Advisory Committee’s Notes. The statement
“required to be mailed” refers to “notice of entry of a judgment or
order,” again suggesting that the notice must be in writing. See
Scott-Harris, 134 F.3d at 434. When a procedural rule uses the
precise phrase employed by the Advisory Committee, it can
reasonably be inferred that the phrase means the same thing in both
contexts. See id. Finally, policy concerns support reading Rule
4(a)(6) as requiring written notice. Written notice is more
readily susceptible to proof than are oral communications, taking
an element of guesswork out of the equation. See id. Also,
because Rule 77(d) provides that parties who do not wish to rely
upon the clerk to transmit the requisite written notice may do so
themselves, the scheme “confers certitude without leaving a
victorious litigant at the mercy of a slipshod clerk.” Id.
Bass’s motion to extend the time for filing a notice of
appeal, filed within seven days of the date he received written
notice of the court’s order, was timely. There appearing on this
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record no other impediment to the district court’s exercise of
discretion, we hold that the district court did not err in granting
the motion.
III. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Bass argues that 7 C.F.R. 1955.107(c), rather than 7 C.F.R.
§ 1922.201, governs how the purchase price for his farm should be
determined. “As a general rule, in considering a petition for
review from a final agency order, the courts will not consider
questions of law which were neither presented to nor passed on by
the agency.” Myron v. Martin, 670 F.2d 49, 51 (5th Cir. 1982).
Although Bass argues that he “inartfully” alluded to this argument
in a letter to the agency, he did not subsequently challenge the
agency’s conclusion that the Part 1922 regulations applied in
determining the farm’s value. In fact, the argument raised by Bass
before the district court and in his appeal is at odds with the
position that Bass took during the administrative proceedings. We
therefore conclude that the district court did not err in
determining that Bass failed to preserve this issue for judicial
review because it was not presented to the agency. See id. at 51.
IV. APPLICATION OF 7 C.F.R. § 1951.909(I)(3)
The district court held that the Director’s citation to 7
C.F.R. § 1951.909(I)(3) governing the method for determining the
repurchase price of the farm was erroneous, but because the error
went only to the weight the Director accorded Bass’s evidence, it
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did not render the decision arbitrary, capricious, or an abuse of
discretion.
The regulation at issue provides that “[b]orrowers appealing
the current market appraisal may obtain an appraisal by an
independent appraiser selected from a list of at least three names
provided by the servicing official.” 7 C.F.R. § 1951.909(I)(3)(I).
This language does not mandate that Bass produce an independent
appraisal in order to challenge the FSA appraisal. See id. Bass
was required to show only that the FSA’s determination of value was
erroneous “by a preponderance of the evidence.” 7 U.S.C. §
6997(c)(4). FSA properly applied this standard in rejecting Bass’s
appeal. The record does not support Bass’s allegation that the
Director totally disregarded Bass’s appraisal. Although the
Director accorded Bass’s appraisal little weight, the Director’s
determination adequately articulates a relationship between the
facts found and its decision to accept the FSA’s appraisal over the
opinion submitted by Bass’s appraiser. We therefore conclude that
the district court’s summary judgment for defendants must be
affirmed.
IV. CONCLUSION
Based on the foregoing, we hold that we have jurisdiction to
consider the merits of this appeal and that the district court’s
summary judgment for defendants is affirmed.
AFFIRMED.
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