Wilkens v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 99-41180

________________________

JAMES JOSEPH WILKENS, JR.,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

____________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

____________________________________________

January 4, 2001

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge.

“Rule 4(a)(1) of the Federal Rules of Appellate Procedure

provides that a party who wants to appeal a judgment or order

entered in a civil case must file a notice of appeal with the clerk

of the district court within 30 days after the date of entry of the

judgment or order from which the appeal will be taken. Rules

4(a)(5) and (6) provide that the district court may, upon motion,

extend [or reopen] the time for filing a notice of appeal. Rule

4(a)(5) is available to a party who shows excusable neglect or good

cause for failing to file within the 30 days provided; Rule 4(a)(6)

may be applied where the court finds that the moving party did not

receive notice of the entry of a judgment or order ‘from the

[district court] or any party within 21 days of its entry’and that

no other party would be prejudiced by allowing the filing of a late

notice of appeal. Relief under 4(a)(6) is available only ‘upon

motion filed within 180 days of entry of the judgment or order or

within 7 days of receipt of such notice, whichever is earlier.’

“This case raises the question whether the seven-day filing

window of Rule 4(a)(6) is opened when a party receives [fax] notice

of the entry of a judgment or order from [the district court].”1

For the reasons hereafter set forth, we answer that question in the

affirmative and dismiss this appeal.

I.

FACTS AND PROCEEDINGS

Petitioner-Appellant James Joseph Wilkens, Jr. is currently on

death row in Texas awaiting execution after being convicted and

sentenced to death by a state court jury in Texas. Presumably

having exhausted his direct and collateral appeals under state law,

Wilkens sought habeas relief in federal district court. On June

18, 1999, the district court entered judgment denying Wilkens’s

petition. Although an entry in the district court’s docket sheet

for this case reflects that the clerk mailed copies of the Final

1

Benavides v. Bureau of Prisons, 79 F.3d 1211, 1213 (D.C. Cir. 1996).

2

Judgment and Denial of Motions (the “judgment”) to the attorneys of

record that same day,2 counsel for Wilkens avers that he never

received a copy until, at the request of the staff attorney for the

district court, a copy was “faxed” to him by the court on September

7, 1999.3

A subsequent docket entry, this one dated October 7, 1999,

confirms that Wilkens filed a Motion for Leave to File Late Notice

of Appeal on October 4, 1999. Docket entries dated October 13,

1999 reflect three filings on October 12, 1999: (1) The district

court’s order granting Wilkens’s October 4 motion, (2) Wilkens’s

notice of appeal (“NOA”), and (3) Wilkens’s motion to proceed in

forma pauperis (“IFP”) on appeal. In November, the court granted

Wilkens’s motion to proceed IFP on appeal and issued a certificate

of appealability (“COA”).

II.

ANALYSIS

A threshold question implicit in every case that comes before

us is whether we have appellate jurisdiction. Respondent-Appellee

2

A June 18, 1999 docket entry in the district court record of this case

states: “Final Judgment that this petition for writ of habeas corpus is DENIED.

All motions by either party not previously ruled on are hereby DENIED. (Signed

by Judge Paul Brown) cc: Attys. 6/18/99 (baf).” Fed. R. Civ. P. 77(d) directs

the clerk to “serve a notice of the entry [of judgment] by mail in the manner

provided for in Rule 5,” which specifies mailing to the party or his attorney at

the attorney’s last known address. Rule 5 also provides that “[s]ervice by mail

is complete upon mailing.” (Emphasis added).

3

This docket entry indicates that the deputy clerk who made the docket

entry, “(tm)” (initials of Toya McEwen), “[f]axed Memorandum Order and Final

Judgment to M. Breding per request of staff atty.” Then as now, counsel of

record for Wilkens was Mark W. Breding, Esq., Tyler, Texas.

3

Johnson has not questioned our jurisdiction; on the contrary, he

has filed a “Non-Opposition to Petitioner’s Out-of-Time Appeal”

declining, “in the interest of justice,” to oppose appellate review

of the district court’s judgment. Even absent a challenge by a

litigant, however, we must examine the basis of our jurisdiction

sua sponte4: A party cannot waive a defect in appellate

jurisdiction;5 neither can jurisdiction be created by mutual

consent of the parties.6 The timely filing of a valid NOA is a

mandatory precondition to the exercise of appellate jurisdiction.7

Consequently, we must determine whether Wilkens’s NOA is somehow

sufficient to satisfy this mandatory prerequisite to our hearing

his case on appeal even though his NOA was not filed until almost

four months after entry of judgment. Central to this inquiry is

whether the district court’s October 12, 1999 order granting

Wilkens’s October 4 motion for leave to file his NOA out of time is

valid; if it is not, then neither is Wilkens’s NOA or the district

court’s subsequently granted COA.

Notwithstanding the reason for a petitioner’s being in custody

—— here, his conviction of a crime punishable by death —— a

4

United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Mosley v. Cozby,

813 F.2d 659, 660 (5th Cir. 1987).

5

Vincent v. Consol-Operating Co., 17 F.3d 782, 785 (5th Cir. 1994).

6

Beers v. North American Van Lines, Inc., 836 F.2d 910, 912 (5th Cir.

1988).

7

Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994).

4

petition for a writ of habeas corpus filed in federal court is a

civil proceeding.8 Thus the Federal Rules of Civil Procedure

(“Fed. R. Civ. P.”) govern habeas proceedings in the district

court, and the civil provisions of the Federal Rules of Appellate

Procedure (“Fed. R. App. P.”) govern habeas proceedings on appeal.

The judgment of the district court in this case was entered on

June 18, 1999; Wilkens’s NOA was not filed until October 12, 1999,

considerably more than the specified maximum of 30 days after entry

of judgment.9 We are without jurisdiction to hear Wilkens’s

appeal, then, unless his late-filed NOA is somehow rescued by

proceedings that comply with Rule 4(a)'s provisions for extending10

11

or reopening the time within which to file an NOA. A non-federal

party to civil litigation in federal district court who fails to

file an NOA within Rule 4(a)(1)’s 30-day period following entry of

the order or judgment from which an appeal is sought still has

available two lifelines for rescuing his appeal through a late-

filed notice of appeal. One is the extension lifeline specified in

Rule 4(a)(5) (“section (5)”), and the other is the reopening

lifeline specified in Rule 4(a)(6) (“section (6)”).

8

Fisher v. Baker, 203 U.S. 174, 181 (1906).

9

Fed. R. App. P. 4(a)(1)(A).

10

Fed. R. App. P. 4(a)(5).

11

Fed. R. App. P. 4(a)(6).

5

Section (5) makes clear that the only time the district court

is empowered to toss the extension lifeline to a putative appellant

is when a motion seeking extension is filed no later than 30 days

after expiration of the original 30 days specified in Rule

4(a)(1)(A), i.e., no later than 60 days after entry of the order or

judgment from which appeal is sought. Only then can the district

court even consider whether either of section (5)’s two exclusive

grounds for granting such an extension —— excusable neglect or good

cause —— has been demonstrated. As Wilkens did not file a motion

for extension of time to file his NOA within 60 days following the

June 18, 1999 entry of judgment, section (5)’s lifeline for

extending the time for filing an NOA had ceased to be available to

Wilkens or to the district court long before October, 1999.

That said, only section (6)’s reopening lifeline remains as a

possibility for rescuing Wilkens’s late-filed NOA.12 Section (6)

is the exclusive authority for the district court to order the

reopening of an otherwise expired and no longer extendable time for

12

Rule 4. APPEAL AS OF RIGHT ——

(a) Appeal in a Civil Case

. . . .

(6) Reopening the Time to File an Appeal. The district court may

reopen the time to file an appeal for a period of 14 days after the date when its

order to reopen is entered, but only if all the following conditions are

satisfied:

(A) the motion if 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;

(B) the court finds that the moving party was entitled to notice of

the entry of the judgment or order sought to be appealed but did not receive the

notice from the district court or any party within 21 days after entry; and

(C) the court finds that no party would be prejudiced.

6

filing an NOA. A district court has authority to toss the

reopening lifeline to a putative appellant only after a motion to

reopen is filed by a party who is eligible to do so under the

provisions of section (6); the district court cannot reopen sua

sponte.13 And, a party’s eligibility to file a motion to reopen is

governed exclusively by the three subparts of section (6), i.e.,

Rule 4(a)(6)(A) (“subpart (A)”),(B) (“subpart (B)”), and (C)

(“subpart (C)”).

Subpart (B) is the gatekeeper provision of section (6). It

specifies that only a party who (1) was entitled to notice of entry

of judgment,14 but (2) did not receive notice from either (a) the

district court or (b) any party (3) within 21 days after entry of

judgment, is eligible to file a motion to reopen. None contest

that Wilkens was entitled to notice of entry of judgment under Rule

77(d) or that he did not actually receive notice from the court or

any party within 21 days after entry, so he meets subpart (B)’s

threshold requirements for eligibility to seek reopening. This

leaves only subpart (A) for us to consider.

Under subpart (A), a party such as Wilkens who meets the

criteria of subpart (B) is eligible to file a section (6) motion to

reopen and attempt to demonstrate the absence of prejudice as

13

Id.

14

Referring to Rule 4(a)(1)’s 30-day period for filing a notice of appeal

and the party’s entitlement of mail service of notice of entry of judgment from

the clerk of the district court pursuant to Fed. R. Civ. P. 77(d).

7

required by subpart (C).15 For the moving party to be eligible to

obtain a valid reopening order from the district court, however, he

must have filed his motion seeking to reopen by the earlier of (1)

180 days after entry of judgment or (2) seven days after he

“receive[d] notice of entry” of judgment. Absent the timely filing

of such a motion, the court is powerless to reopen the time for

filing an NOA. It is not disputed that Wilkens’s October 4, 1999

motion for permission to file an NOA out of time was filed (1) well

before the expiration of the 180-day period after the entry of

judgment on June 18, 1999, but (2) well after the expiration of the

seven-day period following his counsel’s actual receipt of the

facsimile copy of the judgment on September 7, 1999.

In light of these undisputed facts, our final question —— one

of law, not fact —— is whether the copy of the court’s judgment

that was faxed by the district clerk’s office on September 7, 1999

and received in hand by counsel for Wilkens that same day,

qualified as “notice of the entry [of the judgment]” for the

purpose of opening subsection (A)’s alternative seven-day motion

filing window. If the faxed copy did not qualify, then (1) the

15

Absence of prejudice is the only substantive requirement for the

district court to have authority to grant a reopening order. Such an order

differs from an extension order under section (5), which requires the movant to

demonstrate either good cause or excusable neglect —— standards clearly more

onerous than absence of prejudice and just as clearly inapplicable to section

(6). We assume that Wilkens met subpart (C)’s prejudice test. This assumption

is strengthened by, inter alia, the district court’s grant of Wilkens’s motion

and the Respondent’s filing of a Notice to Court of Non-Opposition to

Petitioner’s Out of Time Appeal on March 6, 2000, in response to our show cause

order of January 27, 2000.

8

180-day period applied, (2) the reopening lifeline remained

available, and (3) Wilkens’s October 4, 1999 motion, the court’s

October 12 order granting that motion, and Wilkens’s October 12

NOA, were all timely filed; and we would have jurisdiction to hear

this appeal. If, however, the fax copy of the judgment did qualify

as notice for purposes of subpart (A), then (1) the seven-day

provision applied, (2) it trumped the 180-day provision by being

the earlier of those two alternatives, and (3) Wilkens’s motion,

the court’s order, and Wilkens’s NOA are absolute nullities and we

would have no jurisdiction to consider this appeal. It’s as simple

as that.

Unlike Rule 4(a)(1) and subpart (B) of section (6), nothing in

subpart (A) of section (6) purports to ascribe any particular

qualities or formalities to the words “receive” or “notice”:

There’s nothing about the physical attributes of the notice (oral

or written; electrostatic, carbon, or certified copy, etc.);

nothing about who must furnish the notice (the court, the clerk,

the party opposite, an interested or disinterested third party,

etc.); nothing whatsoever about delivery of the notice, much less

specification of a particular method of delivery (service of

process, ordinary mail, registered mail, certified mail, e-mail,

hand delivery, facsimile delivery, etc.); and nothing about who

other than the moving party is authorized to receive the notice

(counsel for moving party, responsible party in home or office,

9

etc.). When we read the plain language of subpart (A), we can

reach no conclusion but that the fax copy of the judgment —— sent

by the clerk of the district court and received in hand by counsel

of record for Wilkens, more than 21 days but less than 180 days

after entry of judgment —— was sufficient to open subpart (A)’s

seven-day window of opportunity within which Wilkens could have and

must have filed a motion to reopen or forever be precluded from

seeking to reopen.

In sum, irrespective of whether the plain words of subpart (A)

are read in a vacuum or in pari materia with the plain words of

Rule 4(a) in its entirety, the message of subpart (A) is pellucid:

16

Any written notice of entry received by the potential appellant

or his counsel (or conceivably by some other person), regardless of

how or by whom sent, is sufficient to open subpart (A)’s seven-day

window.17 This conclusion is also consistent with relevant

jurisprudence from other circuits, which we now examine briefly.18

16

See Bass v. U. S. Dep’t of Agric., 211 F.3d 959, 963 (5th Cir. 2000)

(holding that oral notice of the judgment is insufficient under Rule 4(a)(6)).

17

The Second Circuit, in Ryan v. First Unum Life Ins. Co., 174 F.3d 302

(2nd Cir. 1999), has read into subpart (A) the additional requirement that, when

a party is represented by counsel, notice must be received by counsel. Although

we perceive no such requirement, that issue is not before us, as the fax copy of

the judgment at issue here was received in hand by counsel of record for Wilkens;

so anything we might say on that subject would be dicta. We therefore leave that

point for another day.

18

Id. As the notice received by counsel for Wilkens was written (fax)

and was furnished by the district court, this case is distinguishable from

Benavides, 79 F.3d 1211 (D.C. Circuit 1996), in which the notice was neither

written nor furnished by the court or a party —— both factors relied on by the

D.C. Circuit in concluding that oral notice from a third party is insufficient

for purposes of subpart (A). With all due respect, we disagree with the portion

10

The Ninth Circuit in Nunley v. City of Los Angeles embraced

the concept of actual notice for starting the seven-day period.19

The Nunley court ruled that the seven-day period began to run when

the potential appellant’s attorney happened to spot the entry of

the order adverse to his client while simply perusing the clerk’s

docket records. No formal service; no sending of notice

whatsoever; no “hard copy” of the notice in hand; yet, in the Ninth

Circuit’s view, still the receipt of notice of entry sufficient to

trigger the seven-day clock. The court so held because counsel

“received” actual notice, and subpart (A) specifies nothing more

formal than that. Similarly, in Zimmer St. Louis, Inc. v. Zimmer

Co., the Eighth Circuit indicated in dicta that the seven-day

period was triggered when counsel received oral notice from the

judge’s clerk that the adverse order had been entered.20 And the

First Circuit in Scott-Harris v. City of Fall River,21 despite

concluding that written notice is required to trigger the seven-day

of the Benavides opinion that would require subpart (A)’s notice to come from the

clerk (now, the court) or a party. Although the crediting of oral notice under

subpart (A) is foreclosed in this Circuit by Bass, supra n. 16 —— and is not

presented to us today —— we see the question of the identity of the furnishers

of notice as inapposite to subpart (A). The Benavides court, at 1214, obviously

—— and, we believe, erroneously —— lifted the phrase, “from the [court],” from

subpart (B) and its 21-day requirement, engrafted that phrase onto subpart (A),

and applied it to the seven-day provision, all without any statutory basis to do

so. As we have demonstrated in detail, the statutory language of subpart (A) is

not, in our opinion, susceptible of such construction, whether read alone or in

context of 4(a) as a whole.

19

52 F.3d 792, 794 (9th Cir. 1995).

20

32 F.3d 357, 359 (8th Cir. 1994). But cf. Bass, supra n.16.

21

134 F.3d 427 (1st Cir. 1997), cert. denied 523 U.S. 1003 (1998).

11

time period under subpart (A),22 recently held that counsel’s

receipt of a written “demand for satisfaction of judgment” ——

distinct from notice of entry or the judgment itself—— was

sufficient to open subpart (A)’s seven-day filing window.23

More directly on point is a case from the Second Circuit which

supports our conclusion today that actual receipt in hand by

Wilkens’s counsel of a facsimile copy of the judgment sent to him

by the district court on September 7, 1999 and received by him that

day, was sufficient to trigger the running of the seven-day period

here at issue. In Ryan v. First Unum Life Ins. Co.,24 the Second

Circuit squarely addressed the issue whether a notice that was not

formally served pursuant to Fed. R. Civ. P. 77(d) and 5(b) was

sufficient to start the seven-day clock under subpart (A). In that

case, counsel obtained a copy of the judgment from the clerk’s

office on the day after an investigator affiliated with counsel’s

law office had ventured to the clerk’s office, been informed orally

that judgment had been entered, and so advised counsel, who then

obtained a copy from the clerk’s office. The section (6) reopening

motion in Ryan was filed within 180 days after entry of judgment

but not within seven days after counsel had obtained in-hand a copy

of the judgment. Rejecting the contention that subpart (A)

22

Id. at 434.

23

Id. at 435.

24

174 F.3d 302 (2d Cir. 1999).

12

requires formal Fed. R. Civ. P. 77(d) and 5(b) mail service of a

copy of the judgment, the Ryan court held that when “a party’s

attorney receives from the Clerk in-hand, written notice indicating

that judgment was entered, a motion to re-open must be filed within

the subsequent seven days.”25 In so holding, the Ryan court

rejected counsel’s argument that receipt from the clerk in-hand

rather than by mail pursuant to Rule 77(d) was not “proper notice,”

precisely the argument advanced by counsel for Wilkens which, like

the Second Circuit, we reject today.

Given the plain wording of Rule 4(a), our reasoning in Bass,26

and the reasoning of those other circuits that have addressed the

issue, we are unable to discern a distinguishing difference between

counsels’ receipt of copies of the judgments following their

requests in Bass and Ryan, on the one hand, and the receipt of the

written facsimile copy of the judgment by Wilkens’s counsel, on the

other hand. All circuits that have addressed this aspect of the

rule have concluded that receipt of written notice by counsel for

the potential appellant starts the seven-day clock of subpart (A)

on the day of receipt, even though not served by mail from the

district court in strict compliance with Fed. R. Civ. P. 77(d) and

5(b). Any contention that such notice must emanate from the court

or a party, or that it must be served by mail pursuant to Rule

25

Id. at 305.

26

211 F.3d 959 (5th Cir. 2000).

13

5(b), runs counter to the plain wording of Rule 4(a) and section

(6) in general, and counter to the plain wording of subpart (A) and

the teachings of our opinion in Bass27 and the cases from other

circuits in particular. Counsel’s argument that his receipt of

notice by fax from the clerk of the district court was not “proper

notice” or “formal notice,” implying that subpart (A) specifies

some sort of formal requirements, widely misses the mark. It has

no foundation in the words of the applicable rules or case law.

Finally, counsel for Wilkens suggests, in the alternative,

that “pursuant to [Fed. R. App. P.] 2, [this court] should suspend

the requirements of Rule 4(a)(5) or (6)...so that justice may be

done.”28 But even if we were inclined to do so because, inter alia,

Wilkens is in custody awaiting execution, we could not take the

action that is suggested by counsel. Although, as a general

proposition, Rule 2 authorizes us to suspend the Federal Rules of

27

Id.

28

Counsel for Wilkens purports not to know whether the district court

proceeded under subsection (5) or subsection (6) of Rule 4(a) but, despite the

fact that neither his motion nor the court’s order identifies the source rule,

we must assume that the court was reopening the time to file. As we have shown,

extending the time to appeal under subsection (5) had long since ceased to be a

viable option by the time, on October 4, 1999, Wilkens filed his motion for leave

to file his NOA out of time, as well as by the time, on October 12, 1999, the

court granted the motion and Wilkens filed his NOA. Not only does Rule 4(a)(5)

say nothing about a party’s receipt of notice of entry of judgment, subpart

(5)(C) specifies in mandatory terms that no extension may exceed 30 days after

the prescribed 30-day time for appeal, i.e., 60 days after entry of judgment, or

10 days after the date on which the order granting the motion for extension is

entered, whichever is later. As it is undisputed that no motion was filed within

the 30+30 period of 60 days, there could have been no order granting a motion to

extend the time for filing a notice of appeal, only one reopening the time. So,

despite the absence of an identifying label in either the motion or the order,

counsel for Wilkens has to know that the court’s order was a “reopening” under

Rule 4(a)(6) if it were anything at all.

14

Appellate Procedure for “good cause” in a particular case, Rule 2

is not an unconditional, roving warrant for us quixotically to “do

justice.” We cannot ignore the express caveat of Rule 2's final

phrase, “except as otherwise provided in [Fed. R. App. P.] 26(b).”

And, even though Rule 26(b) authorizes us to “extend the time

prescribed by these Rules” or to “permit an act to be done after

the prescribed time has expired,” this same rule expressly forbids

us to do so when the prescribed or expired time in question is the

time for filing an NOA!29 Indeed, Rule 26(b) states unequivocally

that we “may not extend the time to file:

(1) a notice of appeal (except as authorized

in Rule 4)....”

Today’s entire self-examination of our appellate jurisdiction turns

on the extension and reopening provisions of Rule 4(a). And,

together, Rules 2 and 26(b) bring us right back to Rule 4(a),

precisely where we were when we detoured to consider Wilkens’s

alternative invitation to do justice by (mis)applying Rule 2. On

this alternative entreaty, our hands are tied.

III.

Conclusion

29

See Fed. R. App. P. 2, Advisory Committee Notes, 1967 Adoption (“This

rule contains a general authorization to the courts to relieve litigants of the

consequences of default where manifest injustice would otherwise result. Rule

26(b) prohibits a court of appeals from extending the time for taking appeal or

seeking review.”)(emphasis added).

15

To recap, the district court’s judgment denying habeas relief

in this case was entered on June 18, 1999. The clerk of the

district court appears to have served notice of the entry of

judgment that day by mail to counsel for each party, in compliance

with Fed. R. Civ. P. 77(d) and 5(b).30 That neither Wilkens nor his

counsel ever received this notice, however, is not contested.

Also uncontested is the fact that the first notice of entry of

judgment ever received by counsel for Wilkens was oral, via

telephone, from staff counsel for the district court on September

7, 1999; neither is it contested that the oral notice was followed

immediately by the court’s faxing of a copy of the judgment, or

that the fax was received by counsel for Wilkens at his law office

later that day. Counsel never received notice of entry of judgment

within 60 days after entry, so that extension under Rule 4(a)(5)

was unavailable to Wilkens.

Additional undisputed facts demonstrate that, even though

Wilkens was entitled to service of the notice of entry of judgment,

and even though notice appears to have been served, neither Wilkens

nor his attorney received notice of entry of judgment from the

court or any party within 21 days after entry. Wilkens thus

cleared the first hurdle to entitlement to reopening under Rule

4(a)(6): Subpart (B)’s 21 days provision was not an impediment to

30

See Fed. R. Civ. P. 5(b)(“Service by mail is complete upon mailing”).

16

his filing a motion for reopening, and he did in fact file such a

motion within the 180-day outer limit for doing so.

Not until almost a month after receiving the fax copy of the

judgment from the court on September 7, 1999, however, did

Wilkens’s lawyer file a motion in the district court for leave to

file a late NOA, which we construe as a Rule 4(a)(6) motion to

reopen. About one week after that, the district court granted

Wilkens’s motion and counsel filed Wilkens’s late NOA. This all

took place well before the expiration of subpart (A)’s 180-day

period following entry of judgment, but well after the expiration

of subpart (A)’s seven day period following receipt of notice of

entry, the earlier of the times within which Wilkens had to file

his motion to reopen.

Subpart (A) of Rule 4(a)(6) speaks only of receipt of notice:

It says nothing at all about who must send the notice; nothing at

all about how the notice must be sent, delivered, or received;

nothing at all about the physical qualities of the notice —— just

plain, unadulterated “receives notice of the entry.” Here, a

written copy of the judgment was (1) sent by the court (2) via fax

(3) to counsel’s law office where it was printed out by his office

fax machine and from there received in hand by counsel of record.

Yet Wilkens’s counsel filed no motion to reopen the time for filing

an NOA, or any other pleading for that matter, during the ensuing

period of seven days allowed by subpart (A). Thus the motion he

17

finally did file, several weeks after receiving the written notice

via fax —— and the order that the district court signed and entered

another eight days after that, purporting to grant that motion ——

were without any legal effect whatsoever.

Moreover, even if, in the alternative, we were inclined to

rescue Wilkens’s otherwise void NOA by invoking Rule 2 “to prevent

manifest injustice,” we could not. As recognized by the Advisory

Committee Notes, Rule 26(b) expressly proscribes using Rule 2 to

extend the time for filing an NOA.31

Because Wilkens’s motion of October 4, 1999 is an absolute

nullity, the court’s order of October 12 purporting to reopen the

time for filing is an absolute nullity, in turn making Wilkens’s

October 12 NOA an absolute nullity. As Wilkens never timely filed

a notice of appeal, we have no jurisdiction to hear his complaint

that the district court erred in denying habeas relief.

APPEAL DISMISSED.

ENDRECORD

31

See supra n. 26.

18

DENNIS, Circuit Judge, dissenting:

The issue in this case is whether the facsimile (“fax”)

transmission of a copy of the court’s judgment to the fax number of

Wilkens’s counsel by the clerk’s office at the behest of a staff

attorney constitutes receipt of notice of the entry of judgment by

Wilkens as required by Federal Rule of Appellate Procedure

4(a)(6)(A). Because I believe that receipt by fax transmission

fails to suffice as receipt of “notice of the entry” of judgment

under Rule 4(a)(6)(A), I respectfully dissent.

Since Rule 4(a)(6)(A) requires that an appellant file a motion

to reopen the time to file an appeal within 180 days after the

judgment or “within 7 days after the moving party receives notice

of the entry,” we must look to Federal Rule of Civil Procedure

77(d) as it provides the rule that directs the clerk to serve the

notice. Rule 77(d) states:

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

19

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). Rule 5(b) provides, “Service upon the

attorney or upon a party shall be made by delivering a copy to the

attorney or party or by mailing it to the attorney or party at the

attorney’s or party’s last known address or, if no address is

known, by leaving it with the clerk of the court.” Fed. R. Civ. P.

5(b)(in pertinent part).

The Advisory Committee Notes to these two rules compel the

conclusion that Rule 4(a)(6) contemplates receipt of notice only as

authorized by Rules 77(d) and 5(b). Rule 4(a)(6)(A) “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) of the Federal Rules of

Civil Procedure, 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 advisory committee notes (1991

Amendment). “This provision . . . enables any winning party to

shorten the 180-day period by sending (and establishing proof of

receipt of) its own notice of entry of a judgment, as authorized by

Fed.R.Civ.P. 77(d).” Fed. R. App. P. 4(a)(6) advisory committee

notes (1991 Amendment) (emphasis added). In 1991, Rule 77 was also

amended as “a companion to the concurrent amendment to Rule 4 of

20

the Federal Rules of Appellate Procedure.” Fed. R. Civ. P. 77

advisory committee notes (1991 Amendment). The amendment

maintained the provision that the clerk shall serve notice of the

entry of the judgment, but also invited the prevailing party to

serve notice in order to ensure “certainty that the time for appeal

is running.” Id. Most important, the Advisory Committee Notes

state, “An appropriate procedure for such notice is provided in

Rule 5.” Id.

Moreover, in Bass v. United States Dep’t of Agric., 211 F.3d

959 (5th Cir. 2000), this court necessarily relied on an in pari

materia reading of Rule 4(a)(6) and Rule 77(d).32 To quote,

First, Appellate Rule 4(a)(6) and Civil Rule 77(d) must

be read in pari materia. 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 except as permitted in Rule

32

Other courts have also read Appellate Rule 4(a)(6) and Civil Procedure

Rule 77(d) together. See, e.g., Nunley v. City of Los Angeles, 52 F.3d 792, 795

(9th Cir. 1995) (“[Rule 4(a)(6)] is to be read in conjunction with Fed.R.Civ.P.

77(d).”); Benevento v. United States, No. 96-7311, 2000 WL 890381, *1 (S.D.N.Y.

July 5, 2000) (finding that receipt by a party’s attorney of an order mailed by

the clerk “necessarily constitutes such notice to the party” as contemplated by

Rule 4(a)(6)).

21

4(a),’ Fed. R. Civ. P. 77(d)(emphasis added), that

reference contemplates lack of written notice.

Thus, we must look to Rules 77(d) and 5(b) in order to

determine what constitutes receipt of notice under Rule 4(a)(6)(A).

The only alternative method of service contemplated by Rule 77(d)

is expressly limited to service of the notice by a party who may do

so “in the manner provided in Rule 5 for the service of papers.”

Fed. R. Civ. P. 77(d). Rule 5 requires service by mail or by one

of the enumerated methods of delivery. Thus, the two rules in pari

materia provide that either the clerk must serve notice of the

entry of judgment by mail, or a party must serve such notice either

by mail or by delivery as prescribed by Rule 5(b). See 16A WRIGHT,

MILLER, & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 3D § 3950.6 (3d

ed. 1999) (“A winning party who desires certainty that the appeal

time is running and who cannot know whether the other side has

received notice from the clerk can themselves serve notice of the

entry.”).

In the instant matter, Wilkens’s attorney was not served

notice of the entry of judgment in any manner authorized by either

Rule 77(d) or Rule 5(b). Because the clerk attempted service by

fax rather than by mail and the opposing attorney did not even try

to serve notice, I believe that valid service of notice of entry of

judgment was not made.

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Under Rule 5, a party may serve notice of entry of judgment

only by mail or by delivery. Delivery means: “handing it to the

attorney or to the party; or leaving it at the attorney’s or

party’s office with a clerk or other person in charge thereof; or,

if there is no one in charge, leaving it in a conspicuous place

therein; or, if the office is closed or the person to be served has

no office, leaving it at the person’s dwelling house or usual place

of abode with some person of suitable age and discretion then

residing therein.” Fed. R. Civ. P. 5(b). Electronic transmission

of a fax of the notice to an attorney’s fax number does not

constitute “delivery” under that definition. The fax obviously was

not “hand[ed] . . . to the attorney,” nor was it left “at the

attorney’s or party’s office with a clerk or other party in charge”

because there was no hand delivery. Also, delivery was not

accomplished by the third method, “leaving it in a conspicuous

place.”

What is most telling about Rule 5(b) is not what it says, but

what it does not: nowhere in Rule 5(b) is there mention of fax or

any other electronic transmissions. However, in section (e), Rule

5 was specifically amended to include filing by fax. Fed. R. Civ.

P. 5(e) (“A court may by local rule permit papers to be filed,

signed, or verified by electronic means that are consistent with

technical standards, if any, that the Judicial Conference of the

United States establishes.”). The Advisory Committee Notes for the

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1991 amendment state: “The revision also accommodates the

development of the use of facsimile transmission for filing.” The

Notes for the 1996 amendment likewise authorize filing by fax or

other electronic means. The Committee expressed concern about

developing standards: “Judicial Conference adoption of technical

standards should prove superior to specification in these rules,”

and “standards must be established to assure proper maintenance and

integrity of the record and to provide appropriate access and

retrieval mechanisms.” Notably, section (b), however, has never

been amended to include electronic transmissions.

The well-reasoned opinion of Salley v. Board of Governors,

Univ. of North Carolina, Chapel Hill, 136 F.R.D. 417, 420 (M.D.

N.C. 1991), succinctly rejected the plaintiff’s arguments that a

fax constituted personal delivery under Rule 5(b) or else, delivery

by “leaving it in a conspicuous place.” Recognizing that including

fax as a method of delivery specified in Rule 5(b) is better left

to “the collegial process of a rules committee,” the court then set

out an excellent explanation of why faxes should not qualify as a

method of delivery under Rule 5(b).

When a document is personally delivered, a person can

verify and certify that an intact and complete copy was

left in the attorney’s office. With a fax transmission,

the person sending the document can only certify that he

or she attempted to, and apparently did, transmit the

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document electronically over telephone lines to the other

office. That person cannot certify that the copy was in

fact received in that office. Also, since fax machines

can operate 24 hours a day and during holidays when the

lawyer’s office is closed, this presents a problem of

determining the time of service . . . . Therefore, should

faxed documents be deemed served from the time of

transmission? Or, if they are transmitted outside of

regular office hours, should service only be deemed to

have occurred when the office is next opened? For these

reasons and unresolved questions, the Court finds that

fax transmission are not a form of delivery as that term

is used in Rule 5(b).

136 F.R.D. at 420.

The Salley decision is in accord with numerous other cases

holding that fax is an insufficient form of delivery under Rule

5(b). See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1429 (9th

Cir. 1996) (“Service by fax does not satisfy Fed. R. Civ. P. 5(b)).

See also United States v. Galiczynski, 44 F.Supp. 2d 707, 713 (E.D.

Pa. 1999) (“The result reached here, that the Federal Rules of

Civil Procedure do not authorize service by fax, is consistent with

the unanimous decisions rendered by courts that have considered the

issue.” (citing, inter alia, Switzer v. Sullivan, No. 95-3793, 1996

WL 52911, *1 (N.D. Ill. Feb. 5, 1996); Mushroom Assocs. v. Montery

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Mushrooms, Inc., No. 91-1092, 1992 WL 442898, *4 (N.D. Cal. Aug.

21, 1992))); Erbacci, Cerone, & Moriarty, Ltd. v. United States,

166 F.R.D. 298, 303 (S.D.N.Y. 1996) (attempting to serve motion to

reconsider by facsimile violated Rule 5(b)).

Cases cited by the majority do not support the contention that

Rule 4(a)(6) is not read in conjunction with Rule 77(d). Nunley v.

City of Los Angeles, 52 F.3d at 794, did seem to embrace the

concept of actual notice triggering the 7-day time period of Rule

4(a)(6), in dicta; however, the court’s actual holding was simply

that the presumption of receipt established by mailing is

rebuttable and could be overcome by evidence of non-receipt at a

contradictory hearing on remand. The First Circuit in Scott-Harris

v. City of Fall River, 134 F.3d 427, 434-35 (1st Cir. 1997), rev’d

on other grounds, 520 U.S. 1263 (1997), held that a demand letter

written by opposing counsel sufficed to trigger Rule 4(a)(6);

however, presumably this letter was mailed and qualified as service

under Rule 5(b) as contemplated by Rule 77(d). Finally, in Ryan v.

First Unum Life Ins. Co., 174 F.3d 302, 305 (2nd Cir. 1999), the

Second Circuit rejected Ryan’s contention that “notice of the

entry” in Rule 4(a)(6) contemplates only notice by mail. Although

Ryan’s rationale is problematic, its result is consistent with a

reading of Rules 4(a)(6), 5(b), and 77(d) that authorize service

upon a party’s attorney by delivery as well as by mail. Ryan’s

attorney received the copy of the judgment marked to indicate the

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date of entry in-hand from the clerk of court rather than by mail.

Id. at 305. The Second Circuit rejected Ryan’s argument that such

notice must have been mailed and must have been sent at the

prompting of the clerk or the adverse party. Id. Thus, Ryan is

readily distinguishable from the present case, as a personal

delivery to a party’s attorney is markedly different from a fax

transmission to an attorney’s fax phone number.

Additionally, although it is not relevant to my analysis of

this case, I disagree with the majority’s characterization of the

facts of this case. The majority repeatedly emphasizes that

Wilkens’s counsel received “in-hand” the faxed copy of the judgment

on the day of its transmission. However, as I read the record,

there is no conclusive evidence of such same-day, in-hand receipt.

Wilkens’s counsel avers in his affidavit only that “Toya McEwen of

the District Clerk’s office sent me a fax containing the Court’s

Memorandum Order, and Final Judgment.”

Accordingly, I conclude that (1) Wilkens did not receive

notice of the entry of judgment as required by Federal Rules of

Civil Procedure 77(d) and 5(b) so as to trigger Rule 4(a)(6)(A)’s

7-day period; (2) Wilkens’s motion for leave to file late notice of

appeal (construed as a motion to reopen the time to file an appeal)

was timely under Rule 4(a)(6)(A)’s 180-day period; (3) Wilkens’s

notice of appeal was timely filed within the 14-day window under

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Rule 4(a)(6); and, (4) we have appellate jurisdiction of this

appeal.

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