On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
The petition for writ of certiorari is denied.
Justice REHNQUIST, dissenting.
Because I believe that the Court of Appeals, CA7,
639 F.2d
394, in this case misapplied the Federal Rules of Appellate
Procedure and this Court's decision in Thompson v. INS,
375 U.S. 384d 404 (1964),
I dissent from the denial of certiorari.
In 1952, petitioner's mother took dienestrol, a synthetic
estrogen, during her pregnancy with petitioner. In early
Page 454 U.S.
927 , 928
1974, petitioner's physician informed her that she had a vaginal
cancer. Alleging that her mother's use of dienestrol was the
proximate cause of her cancer, petitioner brought this diversity
suit under Illinois tort law . After trial, the jury returned a
verdict and awarded petitioner $800, 000 in damages.
Within 10 days of this judgment, respondent filed a motion for
judgment notwithstanding the verdict pursuant to Federal Rule of
Civil Procedure 50(b). The timely filing of this post-trial motion
tolled the 30-day period in which to file a notice of appeal under
Federal Rule of Appellate Procedure 4(a)(4). The District Court
denied the motion on January 14, 1980. Thus, the 30-day period
began to run anew, terminating on February 14, 1980. On February 4,
1980, respondent filed a motion styled as a "motion for
reconsideration" of the January 14 order denying its motion for
judgment notwithstanding the verdict. At a subsequent hearing, the
District Court erroneously informed counsel that respondent's "
motion to reconsider" tolled the time for appeal. Respondent did
not move for, and the District Court did not grant, an extension of
time within which to appeal under Federal Rule of Appellate
Procedure 4(a)(5). The District Court denied the "motion to
reconsider" on March 20, 1980. Respondent filed notice of appeal on
April 21, 1980, 99 days subsequent to the order of January 14
denying respondent's motion for judgment notwithstanding the
verdict.
A divided Court of Appeals held that it had jurisdiction to hear
the appeal. Needham v. White Laboratories, Inc.,
639 F.2d
394 (CA7 1981). After conceding that respondent's "motion to
reconsider" did not toll the 30-day period that began to run when
the Rule 50(b) motion was denied, the court held that this case
fell within "the narrow exception recognized" in Thompson v. INS,
supra. The court held that Thompson applied because respondent
"should not be penalized for relying on the district court
assurance that notice of appeal filed within thirty days of its
Page 454 U.S.
927 , 929
disposition of the motion to reconsider would be timely." 639
F.2d, at 398.
Chief Judge Fairchild dissented. Following entry of an order
denying respondent's Rule 50(b) motion, he argued, an extension of
time under Federal Rule of Appellate Procedure 4(a)(5) was the sole
method by which the running of the time for appeal could be
extended. Moreover, the Thompson exception was "too narrow" to fit
the situation in the instant case. "In Thompson, the Court
predicated its holding not only on reliance on the district court's
conclusion that a motion had been properly filed, but also upon
appellant's performing 'an act which, if properly done, postponed
the deadline for the filing of his appeal.' " 639 F.2d, at 404 (
emphasis added). In Thompson, the appellant filed an untimely but
unchallenged post-trial motion. In contrast, respondent's filing of
the " motion to reconsider" was not an act which, if properly done,
would postpone the deadline for appeal. The Court of Appeals for
the Seventh Circuit denied rehearing with three judges
dissenting.
The Federal Rules of Appellate Procedure, promulgated in 1967,
are quite simple and explicit in setting forth the procedures with
which a litigant must comply in order to invoke the jurisdiction of
the Court of Appeals. An appeal is taken by filing a timely notice
of appeal with the District Court. Fed.Rule App.Proc. 3. Notice
must be filed within 30 days after the date of entry of the
judgment or order appealed from. Fed. Rule App.Proc. 4(a)(1). Four,
and only four, timely post-trial motions will toll the running of
the 30-day period until disposition by the District Court: (1) a
motion for judgment notwithstanding the verdict under Federal Rule
of Civil Procedure 50(b); (2) a motion under Rule 52(b) to amend or
make additional findings of fact; (3) a motion to alter or amend
the judgment under Rule 59(e); (4) a motion for a new trial under
Rule 59(a). Fed.Rule App.Proc. 4(a)(4). Compliance with Rule 4 is
mandatory and jurisdictional. Brow-
Page 454 U.S.
927 , 930
der v. Director, Ill. Dept. of Corrections,
434 U.S.
257, 264, 560 (1978) (citing cases). The clear purpose of Rule
4(a) is to set a definite point in time when litigation shall be at
an end, so that the prospective appellee will know that he is freed
of the appellant's demands. Ibid. The purposes behind the 30-day
rule are so important that a Court of Appeals is barred from
extending the time period . Fed.Rule App.Proc. 26(b). The barrier
of the 30-day rule is not impenetrable, however, for the Rules
provide that the District Court may, " upon a showing of excusable
neglect or good cause," extend the time for filing a notice of
appeal. Fed.Rule App.Proc. 4(a)(5). But even then, a District Court
may grant such a motion only up to 30 days after the expiration of
the time period. Ibid.
It is thus clear that respondent could not extend its time for
filing a notice of appeal by its "motion to reconsider" the
District Court's order denying respondent's previous motion for
judgment notwithstanding the verdict. A "motion to reconsider" is
not recognized by Rule 4(a)(4) as one that will extend the filing
period. [
Footnote 1] The Court
of Appeals correctly recognized this fact, as has this Court.
Browder v. Director, Ill. Dept. of Corrections, supra, at
264-265-561.
The Court of Appeals' reliance on Thompson v. INS, supra,
however, is misplaced. In that case, the appellant filed an
untimely but otherwise proper post-trial motion with the District
Court. The appellee raised no objection to the timeliness of the
motion and the District Court erroneously determined that the
post-trial motion was filed "in ample time ." Appellant filed his
notice of appeal within 60 days 2 of
Page 454 U.S.
927 , 931
the denial of the post-trial motion, but not within 60 days of
the original entry of judgment by the District Court. Appellee
moved to dismiss the appeal because the untimely motion could not
serve to toll the running of the time for appeal. Over four
dissents, this Court reversed the Court of Appeals' dismissal of
the appeal. "Here . . . petitioner did an act which, if properly
done, postponed the deadline for the filing of his appeal. Here . .
. the District Court concluded that the act had been properly done.
Here . . . the petitioner relied on the statement of the District
Court and filed the appeal within the assumedly new deadline beyond
the old deadline." 375 U.S., at 387.
Thus, in order to invoke the Thompson exception, the appellant
must satisfy two prerequisites: (1) he must rely on a statement by
the District Court and (2) he must perform an act which, if timely
done, would toll the time period. Even if the first element has
been met in this case, it is clear that respondent's "motion to
reconsider" could not, under any circumstances, toll the 30-day
period. In contrast to the expressly authorized but untimely motion
in Thompson, respondent's "motion to reconsider" in this case is
not recognized by the Rules as one which, if timely filed, would
toll the period for appeal. Rule 4(a)(4) clearly contemplates that
only the initial motion of the type specified will toll the time
for appeal until the motion is disposed of by the District Court.
Wansor v. George Hantscho Co.,
570 F.2d
1202, 1206 (CA5 1978), cert. denied, 439 U.S. 953 (1979). 9 J.
Moore, B. Ward, & J. Lucas, Moore's Federal Practice 204.12
Page 454
U.S. 927 , 1
(2d ed. 1980). Thus, respondent's reliance on an erroneous
assertion by the District Court is insufficient to invoke an
implied exception to Rule 4's explicit and simple commands.
Under the 1979 amendments to the Federal Rules of Appellate
Procedure, respondent had a means by which it could
Page 454 U.S.
927 , 932
extend the filing period so that the District Court could
"reconsider" the initial post-trial motion without depriving
respondent of an appeal. Rule 4(a)(5) authorizes the District Court
to grant an extension of time in which to file notice of appeal.
Respondent could have made such a request up to 60 days after the
District Court had initially denied respondent's post-trial motion.
Since the Rules provide one means by which respondent could
preserve its time to appeal, there was no justification for the
Court of Appeals to imply a different one in this situation.
Although it is unfortunate that respondent may have been misled
by the District Court, a litigant is bound by the rules of
procedure, just as he is by the rules of substantive law. A
litigant is no more entitled to conclusively rely on a District
Court's view of a rule of procedure than he is as to its view on
matters of substantive law.
I would therefore grant a writ of certiorari in this case and
reverse the Court of Appeals' decision. The Federal Rules of
Appellate Procedure govern all cases on appeal in the federal
system, and patchwork exceptions to them will do far greater harm
to the system than an occasional random departure on a point of
substantive law.
Footnotes
Footnote 1 Such a motion is
not recognized by any of the Federal Rules of Civil Procedure.
Footnote 2 At the time,
appeals to the court of appeals were governed by Federal Rule of
Civil Procedure 73, the predecessor to Federal Rule of Appellate
Procedure 4. That Rule allowed for a 60-day period in which to file
a notice of appeal with the district court.
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