THOMPSON v. IMMIGRATION AND NATURALIZATION SERVICE.
No. 496.
Decided January 6, 1964.
Hal Witt for petitioner.
Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Julia P. Cooper for respondent.
Per Curiam.
Petitioner, a native and national of Canada, filed a petition for naturalization under the provisions of § 310 (b) of the Nationality Act of 1940, 8 U. S. C. (1946 ed.) § 710 (b), now 8 U. S. C. § 1430. On April 18, 1962, the United States District Court for the Northern District of Illinois entered a final order denying the petition on the ground that petitioner had failed to establish his attachment to the United States Constitution. Twelve days later, on April 30, 1962, petitioner served notice on the Immigration and Naturalization Service that he would appear before the trial judge on May 2, 1962, with post-trial motions “to amend certain findings of fact pursuant to Rule 52 F. R. C. P. and for a new trial pursuant to Rule 59 F. R. C. P.” The Government raised no objection as to the timeliness of these motions, and the trial court specifically declared that the “motion for a new trial” was made “in ample time.” On October 16, 1962, these motions were denied. On December 6, 1962, within 60 days of the denial of the post-trial motions but not within 60 days of the original entry of judgment by the District Court, petitioner filed a notice of appeal. The Government then moved in the Court of Appeals to dismiss the appeal on the ground that notice of appeal had not been filed within the 60-day period prescribed by Rule 73 (a) of the Federal Rules of Civil Procedure and that petitioner’s post-trial motions were untimely and hence did not toll the running of the time for appeal. The Court of Appeals granted the motions. Petitioner now seeks review by certiorari of the dismissal of his appeal.
Rule 73 (a) of the Federal Rules of Civil Procedure designates “the time within which an appeal may be taken” in this type of case as “60 days” from “the entry of the judgment appealed from . . . .” The Rule also declares that:
“the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: . . . granting or denying a motion under Rule 52 (b) to amend or make additional findings of fact ... ; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial-under Rule 59.” (Emphasis added.)
It is clear that if petitioner’s post-trial motions were “timely,” then the appeal, which was filed within 60 days of the disposition of the motions, was timely. The Government alleges, however, that the post-trial motions were not timely since the applicable rules provide that they must be “served not later than 10 days after the entry of the judgment,” and these motions were served 12 days after the entry of judgment. The Government concludes, therefore, that since there was no “timely motion” under the rules designated in Rule 73 (a), the appeal must be, but was not, filed within 60 days of the entry of the original judgment.
Although petitioner admits that the post-trial motions were not served until 12 days after the entry of judgment, he claims that they should be deemed timely since they were served 10 days “from receipt of notice of entry of the judgment” by his lawyers who were not in court on the day the judgment was entered. He claims, moreover, that he relied on the Government’s failure to raise a claim of untimeliness when the motions were filed and on the District Court’s explicit statement that the motion for a new trial was made “in ample time”; for if any question had been raised about the timeliness of the motions at that juncture, petitioner could have, and presumably would have, filed the appeal within 60 days of the entry of the original judgment, rather than waiting, as he did, until after the trial court had disposed of the post-trial motions.
In a recent case involving a closely related issue, we recognized “the obvious great hardship to a party who relies upon the trial judge’s finding of ‘excusable neglect’ prior to the expiration of the [applicable period for filing an appeal] and then suffers reversal of the finding . . .” after the time for filing the appeal has expired. Harris Truck Lines, Inc., v. Cherry Meat Packers, Inc., 371 U. S. 215, 217. In that case petitioner had, within the applicable period for filing his appeal, received from the trial court a 30-day extension on the time for filing his appeal on the ground of “excusable neglect based on a failure of a party to learn of the entry of the judgment.” Fed. Rules Civ. Proc., 73 (a). Petitioner then filed his appeal within the period of the extension but beyond the original period. The Court of Appeals, concluding that there had been no “excusable neglect” within the meaning of Rule 73 (a), held that the District Court had erred in granting the extension and dismissed the appeal. We reversed the dismissal and remanded the case to the Court of Appeals “so that petitioner’s appeal may be heard on its merits.” Ibid. See also Lieberman v. Gulf Oil Corp., 315 F. 2d 403, cert. denied, 375 U. S. 823.
The instant cause fits squarely within the letter and spirit of Harris. Here, as there, petitioner did an act which, if properly done, postponed the deadline for the filing of his appeal. Here, as there, the District Court concluded that the act had been properly done. Here, as there, the petitioner relied on the statement of the District Court and filed the appeal within the assumedly new deadline but beyond the old deadline. And here, as there, the Court of Appeals concluded that the District Court had erred and dismissed the appeal. Accordingly, in view of these “unique circumstances,” Harris Truck Lines, Inc., v. Cherry Meat Packers, Inc., supra, at 217, we grant the writ of certiorari, vacate the judgment, and remand the case to the Court of Appeals so that petitioner’s appeal may be heard on the merits.
It is so ordered.
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