Petition — San Francisco Bay Area Rapid Transit District v. Salazar

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ED

SEP 16 1976

In the |} ecmaes RODAK, JR.,CL

Supreme Court of the Wnited States

Octoser TERM, 1976

No. ........-. 76 7 395

San Francisco Bay Area Rapm Transit District,

Petitioner,

VS.

Rose M. Saazar,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

James W. RosenQuist

800 Madison Street,

Oakland, Ca. 94607

Attorney for Petitioner

Of Counsel:

Matcotm M. Barrett,

General Counsel

THOMAS JACKSON,

Associate General Counsel

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

TABLE OF CONTENTS

Page

Opinions Below ......-.--.----sss-ssssssssssecssessessennsensnesenennnenstensnnns 1

JUTISAICCION .........-...-..-0-00--c-eceecceceeceesencesneneresseenssnnenessnenneenres 1

Question Presented ..........-.----------sc-csesceseserseestententenntentenns 2

Rule Involved ............--20:-----ccecccesseesseescecescesnnesnsesncesnnesnesnees 2

Statement of the Case ............-------:--c--ssssseeseeseenteetennneeneees 2

Reasons for Granting the Writ .........--.-..------------1-1 3

CIOMCIUSION .....------0e-----cceceececceseesenesncenencsoesnsersnsansnesnesersnsnsanenses 5

TABLE OF AUTHORITIES

CASES Pages

Files v. City of Rockford, 440 F.2d 811 ~................-....-..- 4

Karstetter v. Cardwell, 526 F.2d 1144 200... 3

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kurten-

I Te Ne SII setsemectenicncstnsintsinisninnninmmiianaesnncnin 3

STATUTES

Title 28, USC:

IIIT sinessacunsscestscincthiessiennsiinniatinnnisncninisilieniiainipainnmaetene 1

Title 42, USC:

TE sncesessiuntinneiannionmmnente asiiadaiebadsetadeapsleammemabeiendigiiaslanie 2

RULES

Federal Rules of Appellate Procedure

UE TEE = secmenisinnennssintiienibennidanisinlnbhiapemcceneninaniinmenne 2, 4,5

Federal Rules of Civil Procedure

SED FED ecctnnccsterensssstenssnnicinnranesuenmemmananannnannsine 4

In the

Supreme Court of the Wnited States

Ocroser Term, 1976

San Francisco Bay Area Rapip Transit District,

Petitioner,

Vs.

Rose M. Sa.azar,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

San Francisco Bay Area Rapid Transit District petitions

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit rendered

July 1, 1976.

OPINIONS BELOW

The opinion of the court of appeals, not yet reported, is

set forth as Appendix A. The May 19, 1975 order of the

district court, not reported, is set forth as Appendix B.

JURISDICTION

The opinion of the court of appeals was rendered July 1,

1976. Petitioner filed a timely Petition for Rehearing and

Suggestion for Rehearing en Banc which was denied on

August 17, 1976. Appendix C. This petition for certiorari

was filed within 90 days of that date. This Court’s jurisdic-

tion is invoked under 28 USC § 1254(1).

2

QUESTION PRESENTED

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

allows the filing of a notice of appeal for 30 days after entry

of judgment. The district court may extend the period for up

to 30 more days upon a showing of excusable neglect. The

showing of excusable neglect must be made on noticed mo-

tion if the extension is sought after the first 30 days have

expired.

The question presented is whether the district court has

jurisdiction to extend the time for filing a notice of appeal

when the required motion is not made until more than 60

days after entry of judgment.

RUE INVOLVED

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

is set forth in Appendix D.

STATEMENT OF THE CASE

Plaintiff commenced this action against Petitioner, her

former employer, under Title VII of the Civil Rights Act of

1964 (42 USC § 2000e). On January 24, 1975, after trial,

judgment was entered against the plaintiff. Plaintiff neg-

lected to file the notice of appeal from that judgment until

March 21, 1975, fifty-six days after its entry.

On May 1, 1975, ninety-seven days after entry of judg-

ment, plaintiff filed her motion, as required by F.R.A.P.

4(a), to extend the time to file the notice of appeal.

The district court denied the motion, ruling that it was

precluded from extending the time because the motion for

the extension was not timely filed (Appendix B). The dis-

trict court’s order further stated that plaintiff’s delay in

filing was due to economic hardship and, on that basis only,

there is sufficient ground for a finding of excusable neglect.

3

Plaintiff appealed from the district court’s order denying

the motion for an extension, and the court of appeals re-

versed the district court, holding that there was jurisdiction

to allow the motion.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals for the Ninth Cir-

cuit in this ease is in conflict with a decision of the Court of

Appeals for the Eighth Circuit. The question presented has

not been decided by this Court, and, as determined by the

court below, has a significant adverse impact on the finality

of judgments and the burdens on the federal court system.

The decision of the court of appeals in this case, and its

earlier decision in Karstetter v. Cardwell, 526 F.2d 1144

(9th Cir. 1975), are squarely in conflict with the holding in

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kurtenbach,

525 F.2d 1179 (8th Cir. 1975). The Court of Appeals for the

Eighth Cireuit held that, notwithstanding the filing of a

notice of appeal in the second thirty-day period, the motion

for the extension must be made within the second thirty-

day period.

The holding of the Court of Appeals for the Fighth

Cireuit is correct and supported by both a common-sense

reading of the rule and an examination of the ramifications

of the interpretation of the court below.

While the rule does not literally require the motion to be

filed within the second thirty-day period, it does require

that a request for an extension, if made after expiration of

the first thirtyv-day period, be “made by motion with such

notice” as is deemed appropriate. Read with the prohibition

against an extension for more than 30 davs, the proper con-

struction is that both the motion and the notice must be

filed within the second thirty-day period.

+

The expansive rule adopted in this case attributes sig-

nificance to the late filed notice of appeal. However, no

rule permitted its filing, and the notice itself does not comply

with the requirements for a motion. Rule 7(b)(1) of the

Federal Rules of Civil Procedure. In effect, Rule 4(a) is

being rewritten to permit a 60 day period for filing a notice

of appeal followed by an indefinite period to move to “vali-

date” the late notice.

The effect of such a procedure was well stated in Files v.

City of Rockford, 440. F.2d 811, 816 (7th Cir. 1971):

“Tf the court were to assume jurisdiction here on the

basis of the record before us, we would in effect be

amending Rule 4(a), Fed. R. App.P., so as to provide

an automatic sixty day period within which to file the

notice of appeal. This is not our province nor indeed

is it our ability to do so.

“Casting this substantial doubt of the finality of

judgments would increase the burdens of an already

overloaded federal judiciary. 9 Moore’s, supra, { 204.13

[2], at 978.” [Emphasis supplied}.

A judgment should become final at some easily determin-

able time. All jurisdictions attempt to set a limit on the

time for filing an appeal. In contrast, the unlimited time

for “validating” the notice of appeal results in complete

uncertainty as to finality. It could be months or even years

before a prospective appellant moved to show excusable

neglect. The successful litigant’s only recourse is to move

to strike the notice of appeal, another burden on the court

and a penalty for the adversary’s neglect.

A review is necessary to weigh the importance of these

policies and resolve the conflict between circuits.

Review at this time is appropriate to avoid the burdens

on the appellate court and the expense the parties which

would be involved in the appeal on the merits. The dis-

5

trict court’s order clearly indicates that on remand the

court will find that the late filing resulted from excusable

neglect. The question of the interpretation of Rule 4(a)

is presented clearly and is ripe for decision now.

CONCLUSION

The court below has decided an important question of

federal procedural law, interpreting a rule promulgated by

this Court, in a manner in conflict with the Court of Ap-

peals for the Eighth Circuit. The petition for a writ of

certiorari should be granted.

Dated: September 15, 1976

Respectfully submitted,

James W. RosENQUIST

Attorney for Petitioner

Of Counsel:

Matcotm M. Barrett,

General Counsel

THoMas JACKSON,

Associate General Counsel

(Appendices Follow)

Appendix A

United States Court of Appeals

Ni:th Circut

Filed—Jul 1 1976

Emil FE. Melfi, Jr. Clerk, U.S. Court of Appeals

Rose M. Salazar,

Appellant,

me No.

San Francisco Bay Area Rapid Transit 15-2561

District,

Appellee.

OPINION

Appeal from the United States District Court

Northern District of California

Before: KitKenny and Trask, Circuit Judges, and Carr,*

District Judge.

Kiikenny, Circuit Judge:

This is an appeal from an order of the district court deny-

ing appellant’s motion under Rule 40 (a), FRAP, for addi-

tional time in which to file a notice of appeal.

FACTS

There is no material dispute in the facts. Appellant filed

a Title VII action against the Bay Area Rapid Transit Dis-

trict (Bart) alleging job discrimination on the basis of sex

*The Honorable Charles H. Carr, Senior United States District

Judge for the Central District of California, sitting by designation.

Judge Carr, a member of the division, became ill just prior to

argument and died March 13, 1976.

2 Appendix

and national origin. On January 24, 1975, after trial, judg-

ment was entered against appellant. On March 4th, the dis-

trict court permitted appellant’s counsel to withdraw as

attorney. He later filed an affidavit stating that he had pre-

pared and delivered to appellant for her use a notice of

appeal in propria persona, Appellant did not file this notice

until March 21, 1975—some fifty-six days after entry of the

judgment. The motion to extend the time for filing the notice

of appeal for an additional thirty days was not filed until

May 1, 1975 some ninety-seven days after entry of the judg-

ment.

Although the district court found that the delay in filing

the notice was due to economic hardship and that this was

a showing of excusable neglect, it held it had no jurisdic-

tion to proceed under Rule 4(a), FRAP, and on May 19,

1975, denied the appellant’s motion for additional time in

which to file the notice of appeai.

ISSUE

Did the district court, having held that there was a show-

ing of excusable neglect, have jurisdiction to grant the mo-

tion for an extension of time?

DISCUSSION

On May 29, 1975, following the entry of the mentioned

order, the United States District Court for the District of

Arizona decided Karstetter v. Cardwell, 399 F. Supp. 1298.

On facts almost identical to those before us, it entertained

jurisdiction to enter a nunc pro tunc order approving the

late filing of a notice of appeal, even though the motion to

permit the filing was not itself filed until after the expira-

tion of the sixty day period mentioned in Rule 4, FRAP.

On appeal to this court in Karstetter v. Cardwell, 526 F.2d

Appendix 3

1144 (1975), we disposed of the jurisdictional issue as fol-

lows: “Having considered the State’s contentions regarding

the timeliness of the appeal, we conclude it is properly be-

fore us; we deny the motion to dismiss and turn to the

merits.” Jd. at 1144. Strange as it may seem, this language,

bearing no meaning of its own, has, without fanfare, de-

clared the law of the cireuit. The Karstetter court could

not have spoken on the merits, as it did, without first hold-

ing that the district court had jurisdiction under the order

permitting the late filing of the notice of appeal.

For a variety of reasons, a number of other circuits would

seem to support the Karstetter approach. See, Stirling v.

Chemical Bank, 511 F.2d 1030, 1032 (CA2 1975); Alley v.

Dodge Hotel, 501 F.2d 880, 886 (D.C. Cir. 1974) ; Cramer v.

Wise, 494 F.2d 1185, 1186 (CA5 1974) ; Torockio v. Cham-

berlain Mfg. Co., 456 F.2d 1084, 1086-1087 (CA3 1972);

Reed v. People of the State of Michigan, 398 F.2d 800, 801

(CA6 1968). At least two circuits have left the question

open on similar facts. See, Brainerd v. Beal, 498 F.2d 901,

903, n. 3 (CAT 1974); Pasquale v. Finch, 418 F.2d 627, 629,

n. 1 (CA1 1969). Supporting the opposite view that there

is no jurisdiction is Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Kurtenbach, 525 F.2d 1179, 1183 (CAS 1975).

With great reluctance we bow to the hidden result in

Karstetter and withdraw our opinion dated April 22, 1976.

We hold that the district court had jurisdiction to allow

the motion.

The judgment of the district court is vaeated and the

eause is remanded for further proceedings.

Tr Is So OrpDERED.

Appendix B

GREENE, KELLEY AND HALLORAN

Sheldon L. Greene

345 Franklin Street

San Francisco, Cal. 94102

Telephone: (415) 626-9301

Attorneys for Plaintiff/Appellant

Filed May 19 1975

William L, Whittaker, Clerk

United States District Court

Northern District of California

Rose M., Salazar,

Plaintiff/Appellant,

v. No.

C-73-0188

San Francisco Bay Area Rapid Transit LHB

District,

Defendant/Appellee.

ORDER

Plaintiff’s motion for an order extending time for filing a

notice of appeal came regularly on for noticed hearing,

pursuant to stipulation of counsel, on May 9, 1975. Both

parties were represented by counsel. Counsel having made

argument and the Court having given due weight to memo-

randa and affidavits submitted prior to the hearing, the

Court finds:

That FRAP Rule 4(a) precludes the Court from extend-

ing the time for filing a notice of appeal for an additional

Appendix 5

30 days after final judgment when, as in this case, although

the notice of appeal was filed within the second 30-day

period, the motion to extend the time for filing was filed

more than 60 days after entry of judgment.

It is further found that the plaintiff/appellant’s delay in

filing the notice of appeal was attributable to economic

hardship and that, on that basis only, there is sufficient

ground for a finding of excusable neglect.

Tuererore, It Is Oxperep that plaintiff/appellant’s mo-

tion to extend time for filing notice of appeal an additional

30 days beyond the date of entry of final judgment, thereby

validating the previously-filed notice of appeal, is denied for

the reasons stated herein.

Datep: May 16, 1975

Lloyd H. Burke, Judge of

the United States District

Court

Appendix C

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Filed Aug 17 1976

Emil E. Melfi, Jr.

Clerk, U.S. Court of Appeals

Rose M. Salazar,

Appellant,

” No.

San Francisco Bay Area Rapid Transit 19-2961

District, tail

ppellee. )

ORDER

Appeal from the United States District Court

Northern District of California

Brerore: KiLKENNY and Trask, Circuit Judges, and Carr,*

District Judge.

The panel as constituted in the above case has voted to

deny the petition for rehearing. Circuit Judge Trask has

voted to reject the suggestion a rehearing in bane. Circuit

*The Honorable Charles H. Carr, Senior United States District

Judge for the Central District of California, sitting by designation.

Judge Carr, a member of the panel, became ill just prior to

argument and died March 13, 1976.

Appendiz 7

Judge Kilkenny has voted to recommend a rejection of the

suggestion for a rehearing in banc. The full court has been

advised of the suggestion for an in bane hearing and no

judge of the court has requested a vote on the suggestion

for rehearing in bane. FRAP 35 (b).

The petition for rehearing is denied and the suggestion

for a rehearing in banc is rejected.

Appendix D

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 4.

APPEAL AS OF RIGHT—WHEN TAKEN

(a) Appeals in Ciwil Cases. In a civil case (including a

civil action which involves an admiralty or maritime claim

and a proceeding in bankruptcy or a controversy arising

therein) in which an appeal is permitted by law as of right

from a district court to a court of appeals the notice of

appeal required by Rule 3 shall be filed with the clerk of the

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

judgment or order appealed from; but if the United States

or an officer or agency thereof is a party, the notice of

appeal may be filed by any party within 60 days of such

entry. If a timely notice of appeal is filed by a party, any

other party may file a notice of appeal within 14 days of

the date on which the first notice of appeal was filed, or

within the time otherwise prescribed by this subdivision,

whichever period last expires.

The running of the time for filing a notice of appeal is

terminated as to all parties by a timely motion filed in the

district court by any party pursuant to the Federal Rules

of Civil Procedure hereafter enumerated in this sentence,

and the full time for appeal fixed by this subdivision com-

mences to run and is to be computed from the entry of any

of the following orders made upon a timely motion under

such rules: (1) granting or denying a motion for judgment

under Rule 50(b); (2) granting or denving a motion under

Rule 52(b) to amend or make additional findings of fact,

whether or not an alteration of the judgment would be re-

quired if the motion is granted; (3) granting or denving a

motion under Rule 59 to alter or amend the judgment: (4)

Appendiz 9

denying a motion for a new trial under Rule 59. A judgment

or order is entered within the meaning of this subdivision

when it is entered in the civil docket.

Upon a showing of excusable neglect, the district court

may extend the time tor filing the notice of appeal by any

party for a period not to exceed 30 days from the expiration

of the time otherwise prescribed by this subdivision. Such

an extension may be granted before or after the time other-

wise prescribed by this subdivision has expired; but if a

request for an extension is made after such time has ex-

pired, it shail be made by motion with such notice as the

court shall deem appropriate.