and Submitted En Banc March 22, 2016 San Francisco,
from the United States District Court No. CV-95-02460-JAT for
the District of Arizona James A. Teilborg, Senior District
Gilbert H. Levy (argued), Law Offices of Gilbert H. Levy,
Seattle, Washington, for Petitioner-Appellant.
Chiasson (argued), Assistant Attorney General; Terry Goddard,
Attorney General; Office of the Arizona Attorney General,
Tucson, Arizona; for Respondent-Appellee.
Nathaniel C. Love (argued), Sidley Austin LLP, Chicago,
Illinois; Mark E. Haddad, Sidley Austin LLP, Los Angeles,
California; David M. Porter, Co-Chair, NACDL Amicus
Committee; for Amicus Curiae National Association of Criminal
Before: Sidney R. Thomas, Chief Judge and William A.
Fletcher, Johnnie B. Rawlinson, Richard R. Clifton, Jay S.
Bybee, Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith,
Jr., Sandra S. Ikuta, Morgan Christen and Paul J. Watford,
Corpus / Fed. R. App. P. 4(a) / Fed. R. Civ P. 60(b)
appeal No. 07-15536, the en banc court reversed the district
court's order denying Arizona death row inmate Theodore
Washington's motion under Fed. Civ. P. 60(b) to vacate
and renter its judgment denying his 28 U.S.C. § 2254
habeas corpus petition so that his appeal could be timely,
and remanded for the district court to vacate and reenter its
judgment nunc pro tunc as of June 9, 2005, in a case
in which Washington filed a notice of appeal one day beyond
the 30-day window set forth in Fed. R. App. P. 4(a)(1) and
did not request an extension until well after the grace
banc court rejected the State of Arizona's argument that
the district court lacked authority to vacate its judgment
and that this court is without jurisdiction to hear the
appeal. Having considered the interests of finality, the
danger of prejudice to the State, that Washington missed the
filing deadline by just one day, and the absence of any
indication of bad faith by his lawyers, the en banc court
concluded that relief was required under Rule 60(b)(1) or,
alternatively, Rule 60(b)(6).
banc court wrote that after the district court reenters its
judgment, Washington's appeal from the denial of his
§ 2254 petition may proceed in appeal No. 05-99009.
Bybee, joined by Judges Callahan, Bea, Ikuta, and Watford,
dissented. He wrote that the majority ignores the holding in
Bowles v. Russell, 551 U.S. 205 (2007), that the
FRAP timely filing requirements are mandatory and
jurisdictional, by shoehorning an essentially equitable
exception to the jurisdictional requirements of Fed. R. App.
P. 4(a) into Rule 60(b).
Watford also dissented because Bowles held that the
filing deadline for civil appeals is jurisdictional and thus
not subject to equitable exceptions. He offered thoughts as
to why the Bowles holding is worth revisiting,
should the Supreme Court decide to take up the issue.
CHRISTEN, Circuit Judge:
Washington, an Arizona death row inmate, filed a notice of
appeal ("NOA") thirty-one days after the district
court denied his petition for writ of habeas corpus. Federal
Rule of Appellate Procedure 4(a)(1) limited the window for
filing this notice to just thirty days, but the rules also
provided a grace period for requesting an extension of time.
Due to a combination of circumstances-including an error by
the court-Washington did not request an extension because he
did not learn that his NOA was one business day late until
well after the grace period expired. Washington filed a
motion under Federal Rule of Civil Procedure 60(b) asking the
district court to vacate and reenter its judgment so that his
appeal could be deemed timely. The district court denied his
request, and he appeals.
State argues that the district court lacked the authority to
vacate and reenter its judgment, and that our court is
without jurisdiction to consider Washington's appeal. We
filing deadline in Rule 4(a)(1) is mandatory and
jurisdictional, but from their inception, the rules have also
given district courts authority to grant relief from
judgment. This is a death penalty case and we are mindful
that both of Washington's co-defendants received relief
from their death sentences. Dismissal of Washington's
appeal would prevent any appellate review of the denial of
his potentially meritorious habeas petition, yet it was a
court error that prevented Washington from seeking an
extension of time expressly allowed by the Rules. Therefore,
having considered the interests of finality, the danger of
prejudice to the State, that Washington missed the filing
deadline by just one day, and the absence of any indication
of bad faith by his lawyers, we conclude that relief was
required under Rule 60(b)(1) or, alternatively, 60(b)(6). We
reverse the district court's order and remand for the
district court to vacate and reenter its judgment nunc
pro tunc as of June 9, 2005. Once judgment is reentered,
Washington's appeal from the denial of his petition for
writ of habeas corpus will be timely and may be considered on
is one of three co-defendants who were convicted in 1987 of
first degree murder and other offenses after two of them
entered a home and robbed and shot its occupants. State
v. Robinson, 796 P.2d 853, 856-58 (Ariz. 1990). All
three defendants were sentenced to death. One of them, James
Mathers, prevailed on direct appeal when the Arizona Supreme
Court ruled that there was insufficient evidence to support
his conviction. See State v. Mathers, 796 P.2d 866,
873 (Ariz. 1990) (In Banc). The second co-defendant, Fred
Robinson, argued in his federal habeas petition that the
state trial court's application of a "cruel,
heinous, and depraved" sentencing enhancement was
arbitrary and capricious, and that counsel was ineffective at
the penalty phase of the defendants' joint trial. See
Robinson v. Schriro, 595 F.3d 1086, 1110-12 (9th Cir.
2010). Robinson was granted relief on habeas review, see
id. at 1113, and on remand the state trial court
resentenced him to sixty-seven years to life, see
Judgment and Sentence, Case No. S1400CR87-14064 (Yuma Cty.,
Ariz., Oct. 25, 2011).
case initially took the same procedural path as
Robinson's. The Arizona Supreme Court affirmed
Washington's conviction on direct appeal. State v.
Robinson, 796 P.2d at 856. Washington filed a petition
for post-conviction relief in the state trial court, which
remarked that it had "a great deal of difficulty finding
a basis to hold this defendant culpable which does not apply,
at least equally or in a greater manner, to James Mathers
[the co-defendant whose conviction the Arizona Supreme Court
overturned for insufficient evidence]. If Mathers, who was
present at all times before the entry into the . . .
[victim's] residence, was not guilty of conspiring to rob
and kill, no greater evidence seems to place this defendant
at the scene." Nevertheless, the court denied
Washington's petition, and the Arizona Supreme Court
summarily denied his petition for review. Washington then
filed a federal habeas corpus petition in the District of
Arizona. Like Robinson, Washington argued that the state
trial court erred by imposing a "cruel, heinous, and
depraved" sentencing enhancement, and that he received
constitutionally ineffective assistance of counsel during the
penalty phase of his trial. Despite these similarities, the
course of these cases sharply diverged on federal habeas
district court's denial of Washington's federal
habeas petition became final on June 8, 2005, but the court
did not indicate whether it would grant a certificate of
appealability ("COA"). Washington had thirty days
to file a NOA, see Fed. R. App. P. 4(a)(1), and the
thirtieth day after the district court entered its judgment
was Friday, July 8, 2005. Due to a calendaring error by
Washington's lawyers, his NOA and motion for a COA were
filed on Monday, July 11, 2005, one business day after Rule
4(a)(1)'s filing deadline. The Federal Rules anticipate
late filings: Rule 4(a)(5) provides a thirty-day grace period
within which parties may request more time to file a NOA upon
a showing of good cause or excusable neglect. See
Fed. R. App. P. 4(a)(5). Washington had plenty of time to
file a motion seeking additional time under Rule 4(a)(5), but
due to a court error, he did not receive notice that his NOA
was late, so he did not know that he needed an extension of
circumstances aligned to prevent Washington from learning
that his NOA was late within the thirty-day period allowed to
seek an extension. First, there were no filings in the
district court case, and no entries on the district court
docket, for over two and a half months after the NOA was
filed. Nothing happened that would have prompted
Washington's lawyers to recalculate the Rule 4(a)(1)
deadline, so nothing short of spontaneously recalculating its
due date would have put Washington's lawyers on notice of
their calendaring error. Second, the district court
clerk's office did not promptly send Washington's
late-filed NOA to the appellate clerk, despite an express
directive that it do so. In 2005, Federal Rule of Appellate
Procedure 3(d) required the district clerk to "promptly
send a copy of the notice of appeal" to the appellate
clerk. Fed. R. App. P. 3(d). For reasons not apparent from
the record, the district clerk did not comply with this rule.
Rather, the clerk waited for the district court to rule on
Washington's motion for a COA before sending the NOA to
the appellate court. The district court ruled on the motion
for a COA on September 30, over two and a half months after
it was filed; the clerk then sent the NOA on to the appellate
court; and a week after receiving it, the appellate clerk
issued an order to show cause why Washington's appeal
should not be dismissed as untimely. By then it was too late
to seek an extension of time under Rule 4(a)(5), but within
six days Washington filed a motion under Rule 60(b) asking
the district court to vacate and reenter its judgment so that
his appeal could be decided on the merits.
motion was premised on Federal Rule of Civil Procedure
60(b)(1) or, alternatively, Rule 60(b)(6). He asked the
district court to vacate and reenter its judgment denying his
habeas petition either: (1) as of June 9, 2005, thereby
rendering his original appeal timely; or (2) immediately,
thereby triggering a new thirty-day filing window pursuant to
Rule 4(a)(1). The district court concluded that it did not
have authority to grant the requested relief, and it denied
the motion. The court also reasoned that Washington's
case did not qualify for relief under Rule 60(b)(1) or
separately appealed the district court's order denying
his Rule 60(b) motion. A three-judge panel of our court
considered Washington's appeal from the denial of his
habeas petition (appeal No. 05-99009) and his appeal from the
denial of his Rule 60(b) motion (appeal No. 07-15536). The
panel concluded that it lacked jurisdiction to consider
Washington's appeal from the denial of his habeas
petition because his NOA was filed one day late.
Washington v. Ryan, 789 F.3d 1041, 1045 (9th Cir.
2015). The panel also affirmed the district court's
denial of Washington's Rule 60(b) motion. Id. at
court granted rehearing en banc. Washington v. Ryan,
811 F.3d 299 (9th Cir. 2015) (mem.). We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we
reverse the district court's denial of Washington's
Rule 60(b) motion.
review for an abuse of discretion a district court's
ruling on a motion for relief from judgment pursuant to Rule
60(b). Casey v. Albertson's Inc., 362 F.3d 1254,
1257 (9th Cir. 2004). We review de novo any question of law
underlying the district court's ruling. Lal v.
California, 610 F.3d 518, 523 (9th Cir. 2010).
argues that there are three ways this court can reach the
merits of his habeas appeal: (1) decide that the district
court abused its discretion by denying relief from judgment
under Rule 60(b)(1) or 60(b)(6); (2) construe his motion for
a COA as a Rule 4(a)(5) motion for an extension of time to
file a NOA; or (3) deem his NOA premature, not untimely,
because he filed it before the district court issued a COA.
The State argues that Rule 4(a)'s time limits, which have
a statutory basis in 28 U.S.C. § 2107, are mandatory and
jurisdictional, and that Washington's failure to comply
with those limits precludes this court from exercising
jurisdiction over his habeas appeal.
60(b) permits the district court to vacate and reenter
judgment to restore the right to appeal in limited
circumstances. This conclusion is consistent with 28 U.S.C.
§ 2107, Rule 4(a), and case law from the Supreme Court,
our own circuit, and the Sixth and Seventh Circuits. The
district court misperceived the extent of its authority to
grant Washington's Rule 60(b) motion. Washington's
case is in the narrow band of cases for which relief from
judgment is appropriate. We therefore reverse the district
court's order denying relief. Because we conclude that
well-established authority entitles Washington to relief
under Rule 60(b), we do not reach his arguments that we
should construe his motion for a COA as a Rule 4(a)(5)
motion, or that his NOA was premature.
Washington is Entitled to Relief Under Rule 60(b).
district court premised its denial of Washington's Rule
60(b) motion on two separate grounds. First, it concluded
that Washington sought to use Rule 60(b) to "circumvent
the 'mandatory and jurisdictional' provisions of [the
30-day deadline for filing an appeal provided in Rule
4(a)(1)]." Second, the court concluded that, even if
Rule 60(b) gave the court authority to reenter judgment for
purposes of rendering Washington's appeal timely,
Washington would not be entitled to relief under Rule
60(b)(1) or 60(b)(6). We respectfully disagree with both
conclusions. Several circuit courts, including our own, have
recognized that the ability to vacate and reenter judgment
pursuant to Rule 60(b) is consistent with the jurisdictional
nature of Rule 4(a)'s deadlines, and the circumstances of
Washington's case compel relief under Rule 60(b)(1) or,
alternatively, Rule 60(b)(6).
In Exceptional Cases, Rule 60(b) Authorizes District Courts
to Vacate and Reenter Judgments to Reset the Time to
Supreme Court "has long held that the taking of an
appeal within the prescribed time is 'mandatory and
jurisdictional.'" Bowles v. Russell, 551
U.S. 205, 209 (2007) (quoting Griggs v. Provident
Consumer Disc. Co., 459 U.S. 56, 61 (1982) (per
curiam)). But the Supreme Court has also recognized that a
district court's authority to provide relief from
judgment includes the authority, in certain circumstances, to
vacate and reenter a judgment to restore the opportunity to
appeal. See Hill v. Hawes, 320 U.S. 520 (1944). The
Federal Rules have been amended since Hill, and some
of those amendments limit the relief available to parties who
fail to timely appeal due to lack of notice that judgment was
entered. But Washington's case is not a lack-of-notice
case, and Congress has neither amended the rules nor enacted
a statute to abrogate the district court's authority to
vacate and reenter judgment where other grounds support a
Rule 60(b) motion.
Hill, the Supreme Court recognized that district
court authority to vacate and reenter judgment includes the
authority to do so for the purpose of restoring the
opportunity to appeal. See id. at 523-24. Hill
missed the original deadline to file his appeal because he
did not receive timely notice of the district court's
judgment. Id. at 521. The Supreme Court affirmed the
district court's order vacating and reentering its
judgment in order to trigger a new filing deadline.
Id. at 523-24. In doing so, the Court confirmed that
the district court's reentry of judgment was consistent
with the general authority it retained over its cases.
dissent reads Hill as a narrow decision limited to
parties who do not receive notice of judgment, and to filing
deadlines established by rule, not statute. But Hill
is not so limited. Hill did not question that the
district court lacked authority to extend the appeal
deadline, id. at 523, yet it approved the district
court's decision to reenter judgment to restore the
opportunity to appeal. The Hill dissent argued that
the majority's decision would allow federal judges
"to make a dead letter of the statutory limit
of the period for appeal." Id. at 526 (Stone,
C.J., dissenting) (emphasis added). And, contrary to the
dissent's interpretation, the Rules Committee also read
Hill as creating a broad form of relief. It warned
that the decision "g[a]ve the district court power, in
its discretion and without time limit . . . to vacate a
judgment and reenter it for the purpose of reviving the right
of appeal." Fed.R.Civ.P. 77 advisory committee's
note to 1946 amendment. In the aftermath of this decision,
the Committee responded by trimming, not eliminating, the
authority Hill recognized.
1991, the Committee had amended the Federal Rules in three
ways significant to Washington's case. First, the
Committee added Federal Rule of Appellate Procedure 4(a)(5),
which provided a thirty-day grace period to allow a litigant
who missed Rule 4(a)(1)'s filing deadline an opportunity
to move for an extension of time to file an appeal.
See Fed. R. App. P. 4(a)(5). Parties may be entitled
to an extension under Rule 4(a)(5) if they show excusable
neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(ii).
the Committee added Rule 4(a)(6), which is specific to cases
in which parties miss Rule 4(a)(1)'s deadline due to lack
of notice of the district court's judgment. See
Fed. R. App. P. 4(a)(6). This rule authorizes an "outer
time limit" of 180 days to move for an extension of time
to file an appeal. Fed. R. App. P. 4(a)(6) advisory
committee's note to 1991 amendment. A district court may
not otherwise relieve parties from failing to file a timely
appeal due solely to lack of notice of judgment. See
Fed. R. Civ. P. 77(d) ("Lack of notice of the entry [of
judgment] does not . . . authorize the court to relieve . . .
a party for failing to appeal within the time allowed, except
as allowed by [Rule] 4(a).").
the Committee expanded the grounds for relief under Rule
60(b) to encompass the "various kinds of relief from
judgments which were permitted in the federal courts prior to
the adoption" of the rules. Fed.R.Civ.P. 60 advisory
committee's note to 1946 amendment; see also Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 235 (1995)
(recognizing that Rule 60(b) "codified judicial practice
that pre-existed"). As Hill demonstrates, these
"various kinds of relief" included the district
court's ability to grant relief from judgment for the
purpose of restoring the right to appeal. Many courts
recognized the validity of using Rule 60(b) for this very
purpose. See also Klapprott v. United
States, 335 U.S. 601, 615 (1949) (recognizing that Rule
60(b) "vests power in courts adequate to enable them to
vacate judgments whenever such action is appropriate to
the addition of Rule 4(a)(6), we held that Rule 60(b) is not
available to restore appeal rights in lack-of-notice cases.
In re Stein, 197 F.3d 421, 423, 426 (9th Cir. 1999)
(explaining that our case law allowing Rule 60(b) relief to
retrigger appeal rights was rendered "obsolete and
inapplicable" to lack-of-notice cases "by the 1991
addition of Rule 4(a)(6)"). Our sister circuits agreed.
See Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d
357, 361 (8th Cir. 1994) ("[T]he plain language of both
Fed. R. App. P. 4(a)(6) and Fed.R.Civ.P. 77(d) addresses
specifically the problem of lack of notice of a final
judgment."); see also Vencor Hosps., Inc. v.
Standard Life & Accident Ins. Co., 279 F.3d 1306,
1311 (11th Cir. 2002) (same); Clark v. Lavallie, 204
F.3d 1038, 1041 (10th Cir. 2000) (same).
history shows that Congress acted in the years since
Hill to narrow the circumstances under which
late-filed appeals may be accepted, but despite several sets
of amendments, changes to § 2107 and the Federal Rules
have not abrogated district courts' traditional authority
to grant relief from judgment in cases-like
Washington's-where "a notice of appeal is filed late
for reasons other than lack of notice." Tanner v.
Yukins, 776 F.3d 434, 441 (6th Cir. 2015). Indeed, after
the 1991 amendments, several courts have had occasion to
explicitly recognize that Rule 60(b) may be used, sparingly,
to restore the right to appeal in extraordinary cases when
parties rely on grounds other than lack of notice.
such case was Mackey v. Hoffman, where our own court
followed the Supreme Court's reasoning in Maples v.
Thomas, 132 S.Ct. 912 (2012), and identified attorney
abandonment as an extraordinary circumstance that justified
relief under Rule 60(b). 682 F.3d 1247, 1253 (9th Cir. 2012);
see also Lal, 610 F.3d at 524 (recognizing
attorney's gross negligence as extraordinary circumstance
justifying relief from judgment where counsel failed to
prosecute a wrongful death action). Mackey was a federal
habeas petitioner who learned of the judgment entered against
him after Rule 4(a)(6)'s 180-day period had passed
because his attorney abandoned him and never informed him of
the status of his case. Mackey, 682 F.3d at 1249-50.
Citing In re Stein, the district court concluded
that it lacked discretion to provide relief from judgment
under Rule 60(b). Id. at 1250. We reversed, and
explained that the limitations on district court authority
identified in In re Stein apply only to Rule 77(d)
lack-of-notice cases. See id. at 1252.
Mackey and In re Stein are consistent with
the conclusion that Rule 60(b) relief remains available for
extraordinary cases outside of the lack-of-notice
Seventh Circuit reached a similar conclusion in Ramirez
v. United States, 799 F.3d 845 (7th Cir. 2015), where a
federal habeas petitioner missed the deadline to file a NOA
after his counsel abandoned him. Id. at 849. The
Seventh Circuit saw "no reason to distinguish between
actions at the state level that result in procedural default
and the consequent loss of a chance for federal
review"-describing the posture in
Maples-"and actions at the federal level that
similarly lead to a procedural default that forfeits
appellate review"-as was the posture in Mackey.
Id. at 854.
notwithstanding Rule 4(a)(1)'s jurisdictional time limit,
the Sixth Circuit held in Tanner that the district
court had authority to vacate and reinstate its denial of a
habeas petition pursuant to Rule 60(b). 776 F.3d at 441. This
afforded a new thirty-day window to file an appeal. Tanner
was nearly illiterate but she managed to prepare an appeal
from the denial of her habeas petition with the assistance of
a prison writ-writer. Id. at 436. She wound up
filing it one day late because her prison unit was placed on
lockdown, and prison guards threatened to put her in solitary
confinement if she left her cell to meet her filing deadline.
See id. The district clerk's office processed
the appeal, not realizing that it was late. Id. at
436-37. By the time the circuit court received the NOA, the
thirty-day period for requesting an extension had expired,
and Tanner's appeal was dismissed for lack of
jurisdiction. Id. at 437. Tanner responded by filing
a successful 42 U.S.C. § 1983 lawsuit against the guards
who interfered with her constitutionally guaranteed access to
the court. Id. Armed with a judgment recognizing the
unconstitutional nature of the guards' actions, Tanner
sought relief in her habeas case under Rule 60(b)(6).
Id. As the district court did in Washington's
case, the district court in Tanner denied relief
because it concluded that Rule 4(a)(1)'s time limit is
jurisdictional and that granting relief under Rule 60(b)
would impermissibly circumvent the rule's jurisdictional
limits. See id. at 437-38.
Sixth Circuit reversed. In doing so, the court recognized
that Rule 60(b) dates back to the earliest promulgation of
the Federal Rules, that the rule "is simply the
recitation of pre-existing judicial power, "
id. at 438 (quoting Plaut, 514 U.S. at
234-35), and that the amendments to the Federal Rules have
limited this authority only where the reason for a late
filing is lack of notice of judgment, see id. at
441-43. The Sixth Circuit remanded Tanner's case with
instructions to vacate and reenter judgment. Id. at
444. Its decision is consistent with the mandatory nature of
the filing deadline in Rule 4(a)(1) and the relief we grant
dissent incorrectly states that only the Sixth Circuit is in
accord with our decision. This misstates the law of other
circuits. For example, the dissent relegates the Seventh
Circuit's recent Ramirez decision to a footnote,
selecting instead the Seventh Circuit's earlier case,
Bell v. Eastman Kodak Co., 214 F.3d 798 (7th Cir.
2000). Bell did not categorically hold that Rule
60(b) may not be used to restore appeal rights in non
lack-of-notice cases. It simply decided that the basis for
the Rule 60(b) motion in that case-one that should have been
argued on direct appeal because it challenged the trial
judge's interpretation of evidence-did not warrant Rule
60(b) relief, and that an appeal from the denial of such a
motion is functionally an appeal from the underlying judgment
itself. See id. at 800.
dissent also relies on the Third Circuit's decision in
West v. Keve, 721 F.2d 91 (3d Cir. 1983). But
West does not stand for the broad proposition that
using Rule 60(b) to restore appeal rights is inconsistent
with § 2107. Indeed, when the Third Circuit later
"reaffirm[ed] West, " it acknowledged
"exceptional circumstances that justify relief under
Rule 60(b) outside the time constraints of Rule 4(a)(5)"
for the purpose of preserving appeal rights. Burkett v.
Cunningham, 826 F.2d 1208, 1217 (3d Cir. 1987),
abrogated on other grounds by Betterman v. Montana,
136 S.Ct. 1609 (2016). By pointing to factually
distinguishable cases from other circuits, the dissent misses
the broader point that there is a solid line of case law
recognizing that district courts have the ability to restore
appeal rights, in limited circumstances, by vacating and
only circuits we are aware of to suggest such relief is never
available are the Fifth and Eleventh Circuits. See Perez
v. Stephens, 745 F.3d 174, 176 (5th Cir. 2014);
Jackson v. Crosby, 437 F.3d 1290, 1296 (11th Cir.
2006). Perez is nothing like Washington's case
because it addressed a situation in which counsel
affirmatively decided not to file an appeal, rather
than a situation in which external circumstances prevented an
appeal from being filed. 745 F.3d at 176. And in
Jackson, the Eleventh Circuit had previously
dismissed an appeal as untimely and viewed a later-filed Rule
60(b) motion as a request that the district court circumvent
its earlier decision. 437 F.3d at 1296. The result we reach
today is consistent with our own case law and case law from
the Sixth and Seventh Circuits-decisions recognizing that
this use of Rule 60(b) is not new, that it has been rarely
but consistently used for decades, and that Congress did not
eliminate it when it imposed other limitations in the years
since the Supreme Court's decision in Hill.
State argues that Rule 60(b) is unavailable to assist
Washington because its plain language authorizes relief from
"judgment, " there is no infirmity in the judgment
entered against Washington, and the problems in this case
arose only after the judgment was entered. But Rule 60(b)
does not require that the asserted grounds for relief exist
before judgment is entered, and Rule 60(b)'s history and
use make clear that it is not so limited. See, e.g.,
Fed.R.Civ.P. 60 advisory committee's note to 1946
amendment (noting Rule 60(b) encompasses grounds for relief
that existed before the rule's adoption); see also
Tanner, 776 F.3d at 444 (recognizing Rule 60(b) relief
may be appropriate for grounds arising after judgment was
entered); Mackey, 682 F.3d at 1254 (same);
Burkett, 826 F.2d at 1217 (same); Wilson,
725 F.2d at 258 (same); Rodgers, 722 F.2d at 460
(same); Hensley, 651 F.2d at 227 (same);
Mizell, 586 F.2d at 944 n.2 (same).
State also argues that we lack jurisdiction to hear
Washington's appeal because, in 28 U.S.C. § 2107(c),
Congress specifically limited the amount of time by which
district courts can extend the period for filing NOAs. The
State and the dissent rely heavily on Bowles v.
Russell, 551 U.S. 205. There, the district court granted
a Rule 4(a)(6) motion to reopen the time to file an appeal,
but it inexplicably authorized three more days than the rule
allows. Id. at 207. The Supreme Court noted the
"mandatory and jurisdictional" nature of Rule 4(a)
deadlines and concluded that the court of appeals lacked
jurisdiction to hear an appeal filed before the expiration of
the court-imposed deadline, but after the expiration of the
period allowed by the rule. Id. at 209-10, 213-15.
The Court reiterated that federal courts have "no
authority to create equitable exceptions to jurisdictional
requirements." Id. at 214.
not persuaded that Bowles dictates the outcome of
Washington's appeal. Bowles did not address Rule
60(b) and did not purport to announce a new principle of law.
Bowles described as "long held" the
principle that appeal deadlines are mandatory and
jurisdictional, id. at 209, and it did nothing to
call into question the similarly "long held"
district court authority under Rule 60(b). Id. at
205. In fact, Bowles relied on Browder v.
Director, Department of Corrections, 434 U.S. 257
(1978), a case that supports our decision. Bowles,
551 U.S. at 209-10 (citing Browder for the
proposition that Rule 4(a) is jurisdictional).
Browder was a habeas case in which the state
respondent filed an untimely motion for an evidentiary
hearing after the district court granted habeas
relief. See 434 U.S. at 260-61. The Supreme Court
concluded that the circuit court lacked jurisdiction because
the untimely motion for an evidentiary hearing did not toll
Rule 4(a)'s limit on the time to appeal. See id.
at 264-65, 271-72. Critically, the State argued that the
motion it filed in the district court was not based on Rule
60(b). Id. at 263.
Blackmun wrote separately to concur in the judgment, joined
by Justice Rehnquist. The concurrence explained that if the
state had not "disavowed any reliance on Rule 60(b),
" its motion likely could have been considered a motion
under Rule 60(b)(1) or 60(b)(6). See id. at 274
(Blackmun, J., concurring). The concurrence observed that,
had this been the case, an order from the district court
reinstating its judgment would have started a new appeal
period and respondent's NOA would have been timely.
Id. at 272. Justice Blackmun saw "no obligation
on [the] Court's part to attempt to rescue
respondent's case on a Rule 60(b) basis" because the
respondent insisted that it had not relied on Rule 60(b) in
the trial court. Id. at 274.
core principle from Bowles and Browder-that
federal courts lack equitable authority to extend Rule
4(a)'s jurisdictional deadlines-is the same principle
recognized in Hill. See Hill, 320 U.S. at
523 ("It goes without saying that the District Court
could not extend the period [to appeal] fixed by Rule . . .
."). But Hill identified a second principle
that does no violence to the first: federal court authority
to relieve parties from judgment, now vested in Rule 60(b),
includes the authority to vacate and reenter the judgment in
extraordinary circumstances to restore the thirty-day
opportunity to appeal. See id. at 523-24.
decades, courts have sparingly but consistently exercised
their authority under Rule 60(b) to restore appeal rights.
Neither Congress nor the Supreme Court has seen fit to limit
this authority except in lack-of-notice cases.
Washington is entitled to relief ...