Appeal from the United States District Court for the District of Columbia (95cv00837)
Before: Wald, Williams, and Rogers, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ON MOTION FOR RECONSIDERATION
Opinion for the Court filed Per Curiam.
This case raises the question whether the "unique circumstances" doctrine may be invoked to excuse a party's failure to file a timely notice of appeal, where the party missed the applicable deadline by relying on erroneous information received from clerk's office staff.
Because we conclude that the unique circumstances exception applies only where a party who could have filed a timely notice of appeal is lulled into missing the deadline by a formal court order or ruling, containing specific assurances that action which extends or postpones the deadline has properly been taken, we are obliged to dismiss this appeal for lack of jurisdiction.
Howard Moore, proceeding pro se, filed suit in the district court against his employer, a Greenwood, South Carolina packing plant, and several South Carolina governmental agencies. The district court dismissed the complaint for lack of subject matter jurisdiction. Thirty-nine days after the order dismissing Moore's complaint had been entered on the district court's docket, Moore filed a notice of appeal. Because no federal agency or officer had been a party to the action, the notice of appeal should have been filed within thirty days after entry of the district court's order. See Fed. R. App. P. 4(a)(1).
Unaware that his notice of appeal was untimely, Moore did not move the district court for an extension of the notice deadline, as is permitted by Fed. R. App. P. 4(a)(5). *fn1 Shortly after the time for seeking an extension of the notice period had passed, this court ordered Moore to show cause why his appeal should not be dismissed for lack of jurisdiction.
Moore claims in response that he failed to file his notice of appeal within thirty days after entry of the district court's order, because a staff person in the district court clerk's office told him he had sixty days within which to file his notice, based on the fact that a government agency was among the parties to the suit. Taking Moore's allegations as true, they nonetheless are insufficient to permit this appeal to proceed.
In general, the time limit established by Federal Rule of Appellate Procedure 4(a) for noting an appeal of an order of the district court is mandatory and jurisdictional. See Browder v. Director, Dep't of Corrections of Illinois, 434 U.S. 257, 264 (1978). The Supreme Court has recognized a narrow exception, however, known as the unique circumstances doctrine, under which appellate courts will excuse an untimely notice of appeal where the appellant could have filed a timely notice but was misled to delay filing by a court order or ruling which purportedly extended or tolled the appeal deadline. See, e.g., Wolfsohn v. Hankin, 376 U.S. 203 (1964); Thompson v. INS, 375 U.S. 384 ...