Appeals: To What Extent Is Fed. R. Civ. P. 60(b)(6) Available As a Means of Providing Relief to Someone Who Missed the Appellate Deadlines in Rules 4(a)(1) and 4(a)(5) — I.e., As an End Around Bowles? Circuit Split

Tanner v. Yukins, 2015 U.S. App. LEXIS 837 (6th Cir. Jan. 20, 2015):

The Federal Rules of Appellate Procedure establish the deadlines that govern filings in this court. See Fed R. App. P. 1(a)(1). When a party is properly notified of a judgment, Rule 4(a)(1)(A) provides the party with 30 days to appeal. Fed. R. App. P. 4(a)(1)(A). Pursuant to Rule 4(a)(5), a movant may request a filing extension of up to 30 days upon a showing of "excusable neglect or good cause," Fed. R. App. P. 4(a)(5)(A)(ii), but must do so within the 30 days following the initial 30-day appeal period. Fed. R. App. P. 4(a)(5)(A)(i).

Notwithstanding Rule 4(a)(1)'s time limits for filing a notice of appeal, we conclude that, in this case, the district court had the authority to vacate and reinstate its denial of Tanner's habeas petition pursuant to Rule 60(b). That rule permits the court to grant relief from a final judgment, order, or proceeding for several [*9]  enumerated reasons, as well as "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). Rule 60(b), which dates back to the earliest promulgation of the federal rules, "reflects and confirms the courts' own inherent and discretionary power, 'firmly established in English practice long before the foundation of our Republic,' to set aside a judgment whose enforcement would work inequity." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 233-34 (1995) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944)); see also id. at 234-35 (explaining that Rule 60(b) "is simply the recitation of pre-existing judicial power"); Johnson v. Bell, 605 F.3d 333, 336 (6th Cir. 2010) (stating that Rule 60(b) "is inherently equitable in nature," and "empowers district courts to revise judgments when necessary to ensure their integrity"); Fed. R. Civ. P 60(b), advisory committee notes (explaining that the committee "endeavored . . . to amend the rules to permit . . . the granting of various kinds of relief from judgments which were permitted in the federal courts prior to the adoption of these rules").

In this case, the district court concluded that this familiar mechanism was unavailable because granting Tanner's Rule 60(b)(6) motion would violate the congressionally-enacted "statutory limitations on the timing of appeals," Bowles, 551 U.S. at 210, limitations that the Supreme Court has recognized as "mandatory and jurisdictional." [*10]  Id. at 209 (internal quotation marks and citation omitted). In Bounds v. Smith, 430 U.S. 817 (1977), however, the Supreme Court held that prison inmates possess a "fundamental constitutional right of access to the courts" that "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries. . . ." Id. at 828. Thus, if the district court were correct, this constitutional right would be meaningless: federal courts would be required to acquiesce in the unconstitutional conduct of prison guards who delay an inmate's ability to file an appeal until it is too late to meet the Rule 4 deadlines. In an extreme case, for example, the district court's decision might permit a prison guard to extort sexual favors from a prisoner with a looming filing deadline, in exchange for access to the law library, or prevent an inmate from use of the law library to prepare a timely action against that guard or his colleagues, and at the same time preclude a judicial remedy for the untimely filing that results. We reject the notion that Rule 4(a)(1) can be used to empower prison guards to deprive inmates of their right to appeal, while simultaneously disempowering federal courts from using [*11]  Rule 60(b) to remedy the violation.

By the time Tanner filed her Rule 60(b)(6) motion for relief from judgment in this case, she had established a violation of her constitutional right of access by means of a jury's verdict--certainly a rare example of success for an inmate litigant. Given the § 1983 decision, we conclude that Rules 4(a)(1) and 4(a)(5) do not deprive the district court of jurisdiction to vacate and reinstate its denial of Tanner's habeas petition pursuant to Rule 60(b)(6). Furthermore, as explained below, we further conclude that the Supreme Court's decision in Bowles is distinguishable from the situation presented here and does not change the analysis set out in Lewis.

The distinction arises from the recent history of Rule 4. Until 1991, Rule 4(a)(5) was the only provision in the Rules of Appellate Procedure that provided a means for seeking an extension of the appeal period on any basis. See In re Stein, 197 F.3d 421, 424 (9th Cir. 1999); In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir. 1985); Silvia v. Laurie, 594 F.2d 892, 893 (1st Cir. 1979). The drafters of the Rules of Appellate Procedure, however, were aware of the long-standing "problem of litigants who fail to receive notice of entry of judgment before the appeal time runs out," and realized that Rule 4(a)(5) "would not aid a litigant who first learned of the entry of judgment more than 30 days after the original appeal time ran out." Wright & Miller, [*12]  16A Fed. Prac. & Proc. Juris. § 3950.6. The committee thus amended Rule 4 in 1991 to address "the plight of this litigant" by adding subdivision (6) to Rule 4(a). Id. This provision was the one at issue in Bowles.

Subdivision (6) of Rule 4(a) provides an avenue for relaxing the time period for appeal in cases in which the litigant failed to receive notice of entry of judgment. In its current form, which is "very similar" to the original text of the amendment, id., Rule 4(a)(6) permits a district court to reopen the time to appeal for a maximum of 14 days if the moving party did not receive notice of judgment pursuant to Federal Rule of Civil Procedure 77(d) within 21 days of the entry of that judgment.1 Fed. R. App. P. 4(a)(6). Rule 4(a)(6) also provides, however, that the district court may entertain a Rule 4(a)(6) motion only if it is filed within 180 days of the entry of the judgment, or within 14 days after receiving notice, whichever is earlier. Fed R. App. P. 4(a)(6)(B).

1   Federal Rule of Civil Procedure 77(d) works in tandem with Appellate Rule 4(a)(6) and was revised in 1991 to reflect that year's changes to Rule 4. See Fed. R. Civ. P. 77(d), advisory committee notes (stating that Rule 77(d) was "a companion to the concurrent amendment to Rule 4 of the Federal Rules of Appellate Procedure"). Rule 77(d) provides that a litigant's failure to receive notice of an entry of judgment "does not affect the time for appeal or relieve--or authorize the court to relieve--a party for failing to appeal within the time [*13]  allowed, except as allowed by Federal Rule of Appellate Procedure 4(a)." Fed. R. Civ. P. 77(d)(2). The committee explained that, with the increase in clerk-office caseloads, the incidents of litigants failing to receive notice had increased, and the revisions were intended "to permit district courts to ease strict sanctions now imposed on appellants whose notices of appeal are filed late because of their failure to receive notice of entry of a judgment." Id. The revisions also incentivize (and provide a means for) a prevailing party to notify the losing party of a judgment in order to ensure that the appeals clock starts running. Id. One federal appeals court has characterized Rule 4(a)(6) and Rule 77(d) as "form[ing] a tessellated scheme." Stein, 197 F.3d at 426.

The new provision thus established "an outer time limit of 180 days for a party who fails to receive timely notice of entry of a judgment to seek additional time to appeal," id., advisory committee notes, and reflected the drafters' attempt to "balance[] the inequity of foreclosing appeals by parties who do not receive actual notice of a dispositive order against the need to protect the finality of judgments." Bowles v. Russell, 432 F.3d 668, 673 (6th Cir. 2005), aff'd, 551 U.S. 205 (2007) (quoting Vencor Hosps., Inc. v. Standard Life & Accident Ins. Co., 279 F.3d 1306, 1309 (11th Cir. 2002) (internal quotation marks and citation omitted)). We have recognized that although the application of Rule 4(a)(6) "may work [*14]  misfortune" in some cases, id. (quoting Clark v. Lavallie, 204 F.3d 1038, 1041 (10th Cir. 2000) (internal quotation marks omitted)), its "essence" is "finality of judgment." Id. (quoting Clark, 204 F.3d at 1041 (internal quotation marks omitted)).

In Bowles, the petitioner failed to receive timely notice of the denial of his habeas petition. Bowles, 432 F.3d at 669. Once Bowles did receive notice, he sought relief pursuant to Rule 4(a)(6) from the time period in Rule 4(a)(1). Id. at 670. His motion to reopen was filed properly within the 180-day period set out in the rule. Id. The district court granted the motion but, inexplicably, directed Bowles to file his notice of appeal by February 27, 2003, which gave him 17 days to appeal, longer than the outer limit of 14 days prescribed by Rule 4(a)(6). Id. Bowles filed on February 26, "timely under the judge's order, but clearly not in compliance with the Rule." Id. at 670-71. We held that the 14-day period in Rule 4(a)(6) "is not susceptible to extension through mistake, courtesy, or grace." Id. at 669. The Supreme Court affirmed, holding that a federal appeals court lacks jurisdiction to decide the merits of a habeas appeal if the notice of appeal was filed with the district court more than 14 days after a Rule 4(a)(6) motion was filed. 551 U.S. at 206-07.

The decision in Bowles--that we lack jurisdiction to hear an appeal filed outside the [*15]  14-day period in Rule 4(a)(6), even where weighty equitable considerations exist--is understandable in light of the drafting history of Rule 4(a)(6), which demonstrates that the time periods in Rule 4(a)(6) are themselves an accommodation of equitable considerations. See Vencor Hosps., 279 F.3d at 1310. Unlike Bowles, however, the case before us does not involve a Rule 4(a)(6) notice problem. Here, as in Lewis, Tanner has asked the district court to grant her relief from judgment, pursuant to Rule 60(b)(6), not to solve a problem related to a failure to receive notice, but to restore her right to appeal, a right she lost due to the unconstitutional conduct of the guards at her prison. Even if Rule 4(a)(6) represents a mandatory and jurisdictional balancing of the interests of fairness and finality in cases in which there has been a notice problem, nothing in the drafting history of Rule 4 suggests that the drafters intended Rule 4(a)(6) to be the sole means of accommodating all equitable considerations that arise due to the Appellate Rules' strict filing deadlines. Our decision in Lewis thus controls this situation and, as Lewis demonstrates, Rule 60(b) is an appropriate means of considering equitable interests when a notice of appeal is filed late for reasons other than lack of notice.

As here, Lewis [*16]  involved a habeas petitioner's Rule 60(b) motion in which Lewis asked the district court to vacate and reinstate its judgment denying his petition. 987 F.2d at 394. Lewis had received timely notice of the entry of judgment against him, and Lewis's attorney had mailed the notice of appeal within the 30-day period prescribed by Rule 4(a)(1). The notice, however, was docketed four days after the expiration of the 30-day period. Id. Lewis's attorney was unaware that the notice of appeal had not been timely docketed and therefore failed to move within the 30-day period in Rule 4(a)(5) for an extension of time. Id. When Lewis's attorney finally did realize that entry of the notice of appeal had been delayed, he filed a Rule 60(b)(1) motion for relief from judgment, asking the district court to vacate and reinstate its denial of Lewis's habeas petition, thereby reviving the time for appeal under Rule 4(a)(1)(A). Id. We concluded that this court "has no jurisdiction to review the lower court's decision on the merits if the notice of appeal is filed in an untimely manner," but that a "district court retains jurisdiction to proceed with matters that are in aid of the appeal." Id. (citation and internal quotation marks omitted). Hence, we held that the district court [*17]  retained jurisdiction to utilize Rule 60(b) "to revive a lost right of appeal," id. at 396 (emphasis added), and that, upon granting a Rule 60(b) motion, the district court should vacate and reinstate the unfavorable decision. Id. at 395. Rule 60(b) thus differs from Rule 4(a)(6) because it provides the district court with a mechanism for accommodating equitable considerations other than the notice problems at the heart of Rule 4(a)(6); it "confers upon the district court a broad equitable power to 'do justice.'" Johnson, 605 F.3d at 336. Accordingly, we conclude that Bowles did not invalidate our reasoning in Lewis.

Lewis thus remains good law in this circuit, and the district court in this case erred in concluding otherwise. A review of the court's analysis shows why. In its opinion, the district court cited two Sixth Circuit cases in which we discussed, but did not overturn, Lewis: Brown v. United States, No. 11-5293, 2011 WL 3555630 (6th Cir. Aug. 3, 2011), and FHC Equities, L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678 (6th Cir. 1999). Brown is an unpublished decision, which addressed whether a Rule 60(b)(6) motion can provide a basis for extending the period set out in Appellate Rule 4(a)(6). It lacks precedential value and, in any event, did not address the provisions of Rule 4 that are at issue in this case. FHC Equities, if anything, supports an outcome contrary to that for which the district court cited it. See 188 F.3d at 683-87. In that case, we analyzed [*18]  in detail whether an attorney's "misinterpretation of rules constitutes 'mistake' justifying the setting aside of a judgment under Rule 60(b)." Id. at 687. Although we concluded that "[t]he district court did not abuse its discretion in refusing to rule that the attorney's misinterpretation of the rules was a 'mistake' within Rule 60(b)," our analysis actually presumed the availability of Rule 60(b) as a basis on which to provide a party with relief from Rule 4(a) in some circumstances. Id. We held only that the attorney error in FHC Equities was insufficient to grant that relief. Id. Thus, FHC Equities did not overrule Lewis; in fact, it followed Lewis.

The district court also briefly alluded to "several courts" that have "criticized" Lewis, but cited only to Brown and FHC Equities, which, as noted, are Sixth Circuit cases. Brown itself cited no cases from other circuits, and FHC Equities cited a single Eighth Circuit case that disavowed Lewis. See FHC Equities, 188 F.3d at 684 (citing Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 361 (8th Cir. 1994)). Zimmer, however, addressed whether Rule 60(b)(6) can provide a basis for extending the time period set out in Appellate Rule 4(a)(6). Zimmer, 32 F.3d at 361. By failing to acknowledge the distinction between notice and non-notice cases under Rule 60(b)(6), the district court failed to substantiate its determination that Lewis is invalid. [*19]

Moreover, we have found no cases decided by our sister circuits post-Bowles that provide support for the district court's decision. Since Bowles, only the Fifth Circuit has concluded that Rule 60(b)(6) is unavailable as a means of providing relief to an individual who missed the appellate deadlines in Rules 4(a)(1) and 4(a)(5).2 See Perez v. Stephens, 745 F.3d 174, 177 (5th Cir. 2014). Perez, however, involved a habeas petitioner who lost his right to appeal the denial of his habeas petition due to his attorney's unilateral decision to waive his client's right to appeal. Id. at 176. Although the attorney's conduct may have been egregious, Perez did not involve the type of unconstitutional conduct by a state actor that is at issue in this case. It is therefore unpersuasive. Moreover, the Perez opinion created a circuit split. The Ninth Circuit had previously held in Mackey v. Hoffman, 682 F.3d 1247 (9th Cir. 2012), that Bowles did not bar a district court from granting relief pursuant to Rule 60(b)(6) from the time limits in Rule 4(a)(1) and Rule 4(a)(5) because "Mackey [sought] relief pursuant to Rule 60(b)(6) to cure a problem caused by attorney abandonment and not by a failure to receive Rule 77(d) notice." Id. at 1253.

2   In Perez, the Fifth Circuit cited several cases that it believed supported its conclusion that Rule 60(b)(6) is unavailable as a means of providing relief from the time limits in Rule 4(a)(1) and [*20]  Rule 4(a)(5). See Perez, 745 F.3d at 180 (citing cases). These cases, however, are either unpublished and therefore of limited persuasive value, or are distinguishable because they involve requests for extensions from the time period in Rule 4(a)(6).

For all of the foregoing reasons, we conclude that the district court improperly determined that it lacked jurisdiction to rule on Tanner's Rule 60(b)(6) motion and erred in failing to recognize that Lewis remains binding precedent post-Bowles.

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