Opposition Brief — Northwest Commercial Fishermen's Federal Recovery Ass'n v. United States

“Wice-Stiprems Court, U.S.

FILED

Oo

| MAY 8 1985

i

ALEXANDER L STEVAS,

TLERK

Iu the Supreme Court of the Hnited States

OcTOBER TERM, 1984

No. 84-1397

NORTHWEST COMMERCIAL FISHERMEN’S FEDERAL

RECOVERY ASSOCIATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

F. Henry Hasicut II

Assistant Attorney General

DAvip C. SHILTON

THOMAS H. PACHECO

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the United States Claims Court abused its dis-

cretion by denying petitioner’s motion for leave to file

notice of appeal outside of the time limit fixed by Fed. R.

App. P. 4(a)(1) where the Claims Court determined that

failure to allow sufficient time for mail delivery of the notice

of appeal did not constitute “excusable neglect” within the

meaning of the Rule 4(a)(5).

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Airline Pilots in Service of Executive

Airlines, Inc. v. Executive Airlines,

EE acd eth eenseeneceeses 6

Aldabe v. Aldabe, 616 F.2d 1089 .............. 6

Allen v. Schnuckle, 253 F.2d 195 .............. 4

Benoist v. Brotherhood of Locomotive

I PETE Soc cksccccaseveseces 5

Browder v. Director, Ill. Dep't of

I OU BE con nccccccssccocecs 4

Dugan v. Missouri Neon & Plastic Advertising

SE caved an cb6nsecéncssscdevess 5

Fallen v. United States, 378 U.S. 139 .......... 7

Fase v. Seafarers Welfare & Pension Plan,

ee hin ain ohn 6.0.0004 8042 ccc ecceens 6

Meza v. Washington State Dep't of Socia!

and Health Services, 683 F.2d 314 ............ 6

(IIT)

IV

Page

Cases—-Continued:

Pryor v. Marshall, 711 F.2d 63 ............005. 4

Sanchez v. Board of Regents of Texas

Southern University, 625 F.2d 521 ......... 4,7

United States v. Myers, 692 F.2d 861 .......... 5

United States v. Robinson, 361 U.S.

| RS re ere ee ee ee 4-5, 7

United States v. Washington, 384 F. Supp.

312, aff'd, 520 F.2d 676, cert. denied,

EE. GaaVGAchbGS0R658Kn50t0060 2-3, 8

Statutes and rules:

Assignment of Claims Act, 31 U.S.C.

PE SEE ONES’ yh eeeddeaseccdadeece 3,9

es ED Bnd 6 ek. ccdcccadascccacstesens 3

ery ere Tet er 1-2, 5

Fed. R. App. P

SE SEG C6 Kish We deicci decesadtscaceses 2

EE Shab k ne kn bdeb0decewewen 2, 3, 4,5

advisory committee notes -- 1979

Amendment (28 U.S.C. App., at

ED AGS MEN ESA CE b GU CoA Gace ebconse 5

EE GU ch GWab eden beh e 665008 2, 3, 4,5

Appendix of Forms (28 U.S.C. App.,

ee eee TPCT OTE TERETE 6

Miscellaneous:

16 Wright & Miller, Federal Practice and

PE cee bei ela ceeeeekcenteseue 5

Inu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1397

NORTHWEST COMMERCIAL FISHERMEN’S FEDERAL

RECOVERY ASSOCIATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (App., infra,

la) is unreported. The opinion of the Claims Court (Pet.

App. 37-40) is reported at 5 Cl. Ct. 745 (1984).

JURISDICTION

The judgment of the court of appeals was entered on

December 12, 1984. The petition for a writ of certiorari was

filed on March 4, 1985. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

RULES INVOLVED

1. Claims Court Rule 72 provides:

Review of a decision of this court shall be obtained

by filing a notice of appeal with the clerk within the

time and manner prescribed for appeals to United

(1)

2

States courts of appeals from United States district

courts.

2. Rule 4, Fed. R. App. P., provides in pertinent part:

(a) Appeals in Civil Cases.

(1) In acivil case 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 after

the date of 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 after such entry. * * *

an >? 4s

(5) The district court, upon a showing of excusable

neglect or good cause, may extend the time for filing a

notice of appeal upon motion filed not later than 30

days after the expiration of the time prescribed by this

Rule 4(a). Any such motion which is filed before expi-

ration of the prescribed time may be ex parte unless the

court otherwise requires. Notice of any such motion

which is filed after expiration of the prescribed time

shall be given to the other parties in accordance with

local rules. No such extension shall exceed 30 days past

such prescribed time or 10 days from the date of entry

of the order granting the motion, whichever occurs

later.

STATEMENT

1. Petitioner filed an action in the United States District

Court for the Western District of Washington, claiming,

inter alia, that its members’ fishing rights had been taken

without just compensation as a result of the decision in

United States v. Washington, 384 F. Supp. 312 (W.D.

Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert.

3

denied, 423 U.S. 1086 (1976). The district court entered

summary judgment in the government's favor on all of

petitioner's claims. Pet. App. 57-66. The United States

Court of Appeals for the Ninth Circuit affirmed as to all

claims except the taking claim (Pet. App. 50-56). Because

petitioner sought monetary damages in excess of $10,000 on

the taking claim, the court of appeals “reluctantly” con-

cluded that exclusive jurisdiction over the claim was in the

Claims Court and that it was required to remand that count

to the district court for possible transfer to the Claims Court

pursuant to 28 U.S.C. 1406(c) (Pet. App. 52-54). The dis-

trict court subsequently transferred the taking claim to the

Claims Court (Pet. App. 48-49), where, on the govern-

ment’s motion, the claim was dismissed by judgment

entered on May 3, 1984 (Pet. App. 41-47). Although the

Claims Court dismissed on the basis of the statute of limita-

tions and the Assignment of Claims Act, 31 U.S.C. 3727(a)

(Pet. App. 41-46), it noted its view that the taking claim was

wholly nonmeritorious (id. at 46).

2. Petitioner's notice of appeal to the United States

Court of Appeals for the Federal Circuit from the May 3,

1984 judgment of the Claims Court was received by the

clerk of the Claims Court on July 3, 1984, 61 days after

entry of the judgment and one day after the 60-day period

for filing provided by Fed. R. App. P. 4(a)(1). Petitioner

mailed the notice from Anacortes, Washington, to Wash-

ington, D.C., on June 28, 1984, five days before it was due

to be received by the Claims Court clerk’s office, using

regular United States mail service (Pet. App. 39). Because

the notice was untimely filed, it was reyected by the clerk and

returned to petitioner.

Petitioner thereupon sought a nunc pro tunc extension of

time for filing a notice of appeal under Fed. R. App. P.

4(a)(5) so as to validate its prior tardy filing. The Claims

Court denied the motion for an extension, on the ground

4

that petitioner had not made the showing of “excusable

neglect” required by Fed. R. App. P. 4(a)(5) (Pet. App.

37-40). © ctitioner noticed a timely appeal to the Federal

Circuit from the denial of the extension motion, and filed

briefs in the court of appeals challenging both the denial of

the extension and the Claim Court's adverse ruling on the

taking claim. The government filed a motion to dismiss

petitioner's appeal, citing the untimeliness of his notice of

appeal from the Claims Court’s May 3, 1984 judgmenit and

the subsequent denial of petitioner's motion for extension of

time to file that notice of appeal. The Federal Circuit

granted the United States’ motion and dismissed the appeal

by judgment order (App., infra, la).

ARGUMENT

The denial of petitioner's motion to file a notice of appeal

out of time was not an abuse of discretion and plainly does

not raise any question meriting this Court's review.

1. a. Rule 4(a)(1) of the Federal Rules of Appellate

Procedure provides that a notice of appeal in a civil case to

which the United States or a federal officer or agency is a

party must be filed within 60 days of entry of judgment. A

notice of appeal is filed when received by the clerk of the

court, and is not deemed filed upon mailing. See, e.g., Pryor

v. Marshall, 711 F.2d 63, 65 (6th Cir. 1983); Sanchez v.

Board of Regents of Texas Southern University, 625 F.2d

521, 522 (Sth Cir. 1980); Allen v. Schnuckle, 253 F.2d 195,

197 (9th Cir. 1958).' The time limit established by Fed. R.

App. P. 4(a)(1) for filing of a notice of appeal is generally

“mandatory and jurisdictional” and must therefore be

strictly observed. Browder v. Direcior, Ill. Dep't of Correc-

tions, 434 U.S. 257, 264(1978); United States v. Robinson,

‘Petitioner does not dispute this proposition. See Pet. 25.

5

361 U.S. 220, 229 (1960); 16 Wright & Miller, Federal

Practice and Procedure § 3950, at 361 (1977).

Pursuant to Fed. R. App. P. 4(a)(5), however, the Claims

Court has authority to extend the time for filing the notice

upon a showing of “excusable neglect."* The Claims Court

properly determined (Pet. App. 37-40), however, that peti-

tioner’s failure to file a tim -ly notice was not due to excusa-

ble neglect. This exercise of the Claims Court's discretion is

not open to “second guessing™ at the appellate level, and

thus must be sustained absent a “clear abuse of discretion.”

Benoist v. Brotherhood of Locomotive Engineers, 55S

F.2d 671, 672 n.1 (8th Cir. 1977); see, e.g., United States v.

Myers, 692 F.2d 861 (2d Cir. 1982).

A party's failure to learn of the entry of judgment gener-

ally provides the basis for a finding of excusable neglect. See

16 Wright & Miller, supra, at 366-367; Dugan v. Missouri

Neon & Plastic Advertising Co., 472 F.2d 944, 948 (8th Cir.

1973). Petitioner does not claim that it failed to receive

timely notice of the judgment, however, and no cther cir-

cumstance supports a finding of excusable neglect in this

case. Contrary to petitioner's assertion (Pet. 27), petition-

er’s counsel did not do “everything within their power™ to

assure timely filing of the notice. Although petitioner was

allowed 60 days from the date of judgment in which to

appeal, it waited until five days before the notice was due to

*Claims Court Rule 72 confirms that the time limits of Fed. R. App.

P. 4(a)\(1) govern appeals from the Claims Court to the Federal Circuit.

3As amended in 1979 Rule, 4(a)(5) also permits the Claims Court to

grant an extension if “good cause” is demonstrated. Petitioner relies

solely upon the excusable neglect branch of the Rule, however. In any

event, the advisory committee notes accompanying in the 1979

Amendment make clear that the good cause standard is intended to be

applied only when the motion is filed before expiration of the time

period prescribed by Rule 4(a\1). 28 U.S.C. App., at 469-470.

6

be received in Washington, D.C. to mail its notice of appeal.

The preparation of a one-page notice of appeal could not

have required much time.‘ There accordingly was no suffi-

cient justification for petitioner’s failure to act more

promptly. Moreover, petitioner admits mailing the notice

from its offices in the State of Washington to Washington,

D.C., by regular mail, even though it is commonly known

that next-day and express delivery services are available for

just such situations, and petitioner does not allege that such

services were unavailable to it. As the Claims Court found

(Pet. App. 39), petitioner simply took the risk that its mail-

ing would be received on the other side of the continent too

late for filing.

This is not a case where the untimeliness of the filing was

attributable to factors outside of counsel’s control, such as

Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir. 1980),

where the notice was timely received by the clerk, but was

not formally filed for another two weeks. Rather, this case ts

similar to other instances in which appeals have been held

barred because of avoidable failures to file timely notices.

See, e.g., Meza v. Washington State Dep’t of Social and

Health Services, 683 F.2d 314 (9th Cir. 1982) (counsel’s wife

was hospitalized two days before notice was due, but no

explanation was given as to why the notice had not been

filed sooner, or why other attorneys in the same office could

not have attended to the filing); Airline Pilots in Service of

Executive Airlines, Inc. v. Executive Airlines, Inc., 569

F.2d 1174 (Ist Cir. 1978) (counsel’s secretary mistakenly

noted due date for filing notice); Fase v. Seafarers Welfare

‘A simple form for a notice of appeal is included in the Appendix of

Forms to the Rules of Appellate Procedure. 28 U.S.C. App., at 497.

7

& Pension Plan, 574 F.2d 72 (2d Cir. 1978) (counsel mistak-

enly relied on practice of other district courts of sending

notice of entry of judgment to counsel, and court did not

send notice).°

b. Without explanation, petitioner cites (Pet. 28) this

Court’s decision in Fallen v. United States, 378 U.S. 139

(1964). Fallen provides no support for petitioner’s conten-

tions. In Fallen the Court held timely a prisoner’s appeal

from a criminal conviction received out of time by the

district court clerk where the government conceded that the

notice of appeal had been timely delivered to prison author-

ities for mailing, and where absent irregular collection of

mail from the penitentiary, Fallen’s notice of appeal would

have been timely received by the clerk of the court. The

Cour: concluded that the “record facts” established that

Fallen had “done all that could reasonably be expected” to

notice his appeal in a timely fashion. 378 U.S. at 144.

This case bears no resemblance to Fallen. First, there was

no issue in that case as to whether time for filing an appeal

should have been extended. Indeed, at the time Fallen was

decided no authority existed for such an extension in a

criminal case. See United States v. Robinson, supra.

Second, the circumstances that dictated relaxation of the

jurisdictional character of the filing requirement are absent

here. As explained above, petitioner here did not take the

steps that reasonably could be expected, especially of a

party represented by counsel, to assure timely receipt of his

notice of appeal. Moreover, petitioner has presented no

information that suggests that unforeseeable delays in the

transmission of the mail occurred in this case.®

5Indeed, in each of the three cases cited in the text, the court of

appeals found that the district court had abused its discretion in finding

excusable neglect and permitting the late filing of a notice of appeal.

®Petitioner’s reliance (Pet. 27-28) on language in Sanchez v. Board of

Regents, 625 F.2d at 522, accordingly is unwarranted.

8

2. Petitioner argues (Pet. 28-32) further that the “inter-

ests of justice” require that its failure to file a timely notice

of appeal be excused and that its claim be considered on its

merits. However, because of the mandatory and jurisdic-

tional character of the time limit for taking the appeal, the

merits of petitioner’s claim are essentially irrelevant to

whether the Claims Court abused its discretion in denying

the motion to extend. In any event, the interests of justice

plainly are not disserved by the dismissal of petitioner’s

appeal. Petitioner claims that the decision in United States

v. Washington, supra, deprived its members of “valuable

property rights,” because those decisions held that the Indi-

ans in Washington had a treaty right to take up to 50% of all

harvestable fish at their “usual and accustomed” grounds

and stations, and as a result petitioner’s members were

limited in their fishing activities. To date, the three federal

courts which have been corfronted with petitioner’s taking

claim in this case have made clear that it is wholly without

merit (see Pet. App. 46-47, 52-53, 60-61). As the Claims

Court succinctly stated (Pet. App. 47), the judicial deci-

sions of which petitioner complains

did not result in the taking of any property of [petition-

er’s members] in favor of the Indians; they merely

refined the interpretation of the treaties which had long

been foretold. See Washington v. Washington State

Commercial Passenger Fishing Vessel Association,

443 U.S. [658,] at 679, 685 [(1979)]. If the non-Indian

commercial fishermen earlier had larger harvests of

fish, it was because they had enjoyed a share of the

catch belonging to the Indians by treaties. The reorder-

ing of entitlement between Indian and non-Indian

commercial fishermen in accordance with the treaties

9

cannot be considered a taking from the non-Indians,

but a righting of the balance the treaties required.{7]

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

F. HENRY HABIcut II

Assistant Attorney General

DAvID C. SHILTON

THOMAS H. PACHECO

Attorneys

May 1985

7We note, as well, that petitioner does not identify any error in the

Claims Court’s conclusion (Pet. App. 41-46) that petitioner’s taking

claim is barred by the statute of limitations and the Assignment of

Claims Act, 31 U.S.C. 3727(a).

DOJ-1985-05

APPENDIX

United States Court of Appeals for

the Federal Circuit

No. 84-1778

51-83C

NORTHWEST COMMERICAL FISHERMAN’S

FEDERAL RECOVERY ASSOCIATION, ETC.,

Appellant,

Vv.

THE UNITED STATES, Appellee.

Judgment

ON APPEAL from the U.S. Claims Court

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED: DISMISSED, on Appel-

lee’s Motion to Dismiss.

DATED December 12, 1984 ENTERED BY ORDER OF

THE COURT

George E. Hutchinson, Clerk

Clerk

ISSUED AS A MANDATE: February 4, 1985

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