holding that a mailing delay constituted excusable neglect
How later courts described this case
- holding that a mailing delay constituted excusable neglect
Written by the judges who cited it.
The opinion
MURNAGHAN, Circuit Judge,
concurring.
Agreeing with the conclusion reached by Judge Hall and with much of what he has written, nevertheless I write specially to concur because I regard the decision in Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, — U.S.-, 104 S.Ct. 2354 , 80 L.Ed.2d 827 (1984) an unfortunate example of a nod by Homer. While I am certainly bound by it unless or until modified or overruled, I see a potentially harmful effect of dragging Shah v. Hutto which was governed by F.R.App.P. 4(a) concerning civil cases into resolution of a criminal controversy controlled by the significantly different F.R.App.P. 4(b).
Accordingly, I disassociate myself from the language in the majority opinion beginning “In Shah v. Hutto, ...” appearing on page 353. Instead of that language, I, for purposes of my concurrence, substitute the following:
“The language quoted from Rule 4(b) is substantially different from the wording of Rule 4(a), which governs appeals in civil cases. Reyes contends that excusable neglect inescapably applies to explain and justify the two day delay occasioned by failure of the post office to effect, in three days time, prompt delivery to the district court from a mail drop in the very building containing the dis-
*355 trict court to whom the notice of appeal was addressed.
No motion was required by Rule 4(b), so Reyes was entitled to resolution of the question of whether there was excusable neglect. An affirmative holding would establish that the appeal was timely filed.”