* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 18, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-20850

Summary Calendar

 

LORETTA HODGE, ET AL, Plaintiffs.

LORETTA HODGE,

Plaintiff-Appellant.

versus

HARRIS COUNTY HOSPITAL DISTRICT,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

(01-CV-H-98-0662)

--------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Loretta R. Hodge appeals the district

court’s denial of her Rule 4(a)(6) Motion to Reopen Time for Appeal

Due to Unique Circumstances. For the reasons stated below, we

affirm the district court’s decision.

I. FACTS AND PROCEEDINGS

On June 14, 2000, Hodge filed a Rule 60(b) Motion for Relief

from Judgment and Memorandum of Law against Defendant-Appellee
2

Harris County Hospital District (“Harris”). Harris filed its

response on June 30, 2000, and Hodge submitted a reply on July 3,

2000. On July 13, 2000, the district court entered its Memorandum

and Order denying Hodge’s Rule 60(b) motion; however, Joseph

Willie, the attorney who filed the Rule 60(b) motion on behalf of

Hodge, never received notice from the district court that it had

relied on the motion. 

On March 12, 2001, 242 days after the district court entered

judgment, Hodge filed a Request for Oral Hearing on the Rule 60(b)

motion. On June 4, 2002, after more than a year had elapsed since

the request for an oral hearing, and almost two years had elapsed

since the district court had issued its decision, Willie wrote a

letter inquiring as to the status of the Rule 60(b) motion. On

June 6, 2002, a case manager for the district court judge

responsible for this case sent an e-mail to Willie informing him

that the memorandum and opinion on the Rule 60(b) motion had been

issued in July, 2000. She also stated that “[t]he docket sheet has

Glenn W. Patterson, Jr. [Hodge’s trial attorney] listed as the

attorney in charge for the plaintiffs. Your name and address is

not listed on the Docket Sheet.”

On June 10, 2002, Willie, on behalf of Hodge, filed a Rule

4(a)(6) Motion to Reopen Time for Appeal Due to Unique

Circumstances; and on June 19, 2002, the district court denied the

motion. Hodge timely filed a notice of appeal to contest this

denial.
1Jones v. W.J. Serv., Inc., 970 F.2d 36, 39 (5th Cir. 1992).

3

II. ANALYSIS

A. Standard of Review

Rule 4(a)(6) grants the district court discretion to reopen

the time to file an appeal. We therefore review the court’s

decision for an abuse of that discretion.1

B. Re-opening Time to Appeal

Hodge asserts that the district court abused its discretion by

not granting her motion to reopen the time within which to file an

appeal. She contends that her counsel, Joseph Willie, became the

attorney of record when he submitted the Rule 60(b) motion, and

that the district court denied her due process by failing to

inform either her or her counsel that her Rule 60(b) motion had

been denied. As a result, she argues, we should apply the uniquecircumstances doctrine to her situation and relax the strict

jurisdictional requirements of Rule 4(a)(6) for filing an appeal.

Notwithstanding Hodge’s contention that the factual

circumstances of this case present an issue of first impression in

this court, we have addressed both Rule 4(a)(6) and the doctrine of

unique circumstances previously. Rule 4(a)(6) of the Federal Rules

of Appellate Procedure provides: 

The district court may reopen the time to file

an appeal for a period of 14 days after the

date when its order to reopen is entered, but

only if all the following conditions are

satisfied:

(A) the motion is filed within 180 days after

the judgment or order is entered or within 7

days after the moving party receives notice of

the entry, whichever is earlier;
2Fed. R. App. P. 4(a)(6). 

3Wilkens v. Johnson, 238 F.3d 328, 331 (5th Cir. 2001)

(emphasis in original).

4Id.

5Prudential-Bache Sec., Inc. v. Fitch, 966 F.2d 981, 985

(5th Cir. 1992).

4

(B) the court finds that the moving party was

entitled to notice of the entry of the

judgment or order sought to be appealed but

did not receive the notice from the district

court or any party within 21 days after entry;

and

(c) the court finds that no party would be

prejudiced.2

We have found that a party who meets the criteria of subpart (B)

must then show that he has “filed his motion seeking to reopen by

the earlier of (1) 180 days after entry of judgment or (2) seven

days after he ‘receive[d] notice of entry’ of judgment.”3 Going

further, we concluded, “[a]bsent the timely filing of such a

motion, the court is powerless to reopen the time for filing an NOA

[notice of appeal].”4 Our prior interpretation of this rule

strongly suggests that Hodge’s argument must fail, simply because

her counsel did not file the Rule 4(a)(6) motion until almost two

years after the district court’s entry of judgment on the Rule

60(b) motion, well beyond the 180 day limit.

In addition, the structure of the federal rules, and our

interpretation of them, supports this conclusion. Rule 77(d) of

the Federal Rules of Civil Procedure “contemplate[s] that the clerk

will notify litigants of the entry of the district court’s

orders,”5 but states that “[l]ack of notice of the entry by the
6Fed. R. Civ. P. 77(d) (2003). In full, it provides:

Immediately upon the entry of an order or

judgment the clerk shall serve a notice of

the entry in the manner provided for in Rule

5(b) upon each party who is not in default

for failure to appear, and shall make note in

the docket of the service. Any party may in

addition service a notice of such entry in

the manner provided in Rule 5(b) for the

service of papers. Lack of notice of the

entry by the clerk does not affect the time

to appeal or relieve or authorize the court

to relieve a party for failure to appeal

within the time allowed, except as permitted

in Rule 4(a) of the Federal Rules of

Appellate Procedure. Id.

7Fed. R. Civ. P. 77(d), Advisory Committee Notes, 1991

Amendment.

8Fed. R. App. P. 4(a)(6), Advisory Committee Notes, 1991

Amendment.

5

clerk does not affect the time to appeal or relieve or authorize

the court to relieve a party for failure to appeal within the time

allowed, except as permitted in Rule 4(a) of the Federal Rules of

Appellate Procedure.”6 In 1991, both Rule 77(d) and Rule 4(a) were

revised to “permit district courts to ease strict sanctions []

imposed on appellants whose notices of appeal are filed late

because of their failure to receive notice of entry of a

judgment.”7 Part of the relaxation was the addition of Rule

4(a)(6) which established “an outer time limit of 180 days for a

party who fails to receive timely notice of entry of a judgment to

seek additional time to appeal....”8 Thus, the heretofore strict

rules on appeal time limits were eased, but only slightly, to

provide “an outer limit of 180 days.” Furthermore, despite such

revisions, we have since reiterated our position that “[p]arties
9Prudential-Bache Sec., Inc., 966 F.2d at 985 (citing Wilson

v. Atwood Group, 725 F.2d 255, 258 (5th Cir. 1984) (en banc). 

10Id. (citation and internal quotation marks omitted).

11Id.

12191 F.3d 1324 (11th Cir. 1999).

6

may not rely on the clerk to send them notice and absence of notice

is no excuse for not filing a timely notice of appeal.”9 And, to

the extent the 1991 amendments force us to relax our strict, noexcuse stance, these amendments would only provide a potential

reprieve for untimely appeals for up to 180 days after entry of

judgment. 

Hodge argues, nonetheless, that her case presents “unique

circumstances” that merit the court’s relief for time in which to

file a notice of appeal. We have recognized that “[t]he unique

circumstances remedy applies where counsel fails to file a notice

of appeal within the prescribed time based on its good faith

reliance on a mistaken assurance or statement of the district

court.”10 Thus, we have concluded that “the rule applies only where

the district court makes an ‘affirmative representation’ or

‘specific assurance’ that a party’s notice of appeal was proper.”11

Hodge relies on, and urges use to adopt the reasoning of, Hollins

v. Department of Corrections, a recent decision by another

circuit.12 In Hollins, the Eleventh Circuit held that a district

court’s failure to enter a final order on its electronic docket

sheet, in conjunction with court encouragement to rely on this

system, was enough to establish the aggrieved litigant’s reasonable
13Id. at 1328.

7

reliance on the specific assurance of the court that a final order

had not been issued.13 

To resolve the case before us, however, we need not attempt to

divine the outer bounds of the type of conduct that amounts to an

affirmative representation or specific assurance in this circuit,

because in this case, there was no word, written or oral, from the

district court, on which Hodge could have relied. And, unlike

Hollins, there is no evidence before us that the Southern District

of Texas had a policy that could have lulled Hodge into inaction.

Neither was Hodge’s reliance on the court’s silence reasonable,

because, as we have indicated, absence of notice is no excuse for

failure timely to appeal. 

Other facts surrounding Hodge’s Rule 4(a)(6) motion further

convince us that these circumstances are not so extreme as to

warrant our granting relief. Although Hodge’s Rule 60(b) motion

was filed by Willie with his name on the pleading, he nonetheless

waited 242 days even to contact the court in reference to this

case; and, when he did so, he only requested an oral hearing. It

was not until almost two years after he had submitted his last

brief on the Rule 60(b) motion that Willie actually requested a

status update on the case. Even if we assume arguendo that the

district court mistakenly failed to record Willie’s name and

address as the new attorney in charge, he is not completely

relieved of all responsibility for his case. Indeed, by making 180

days from entry of judgment the outer limit for filing a motion to
14See Latham v. Wells Fargo Bank, 987 F.2d 1199, 1201 (5th

Cir. 1993) (finding “the notion that parties have a duty to

inquire periodically into the status of their litigation”

implicit in Rule 77(d)’s requirement of timely appeal regardless

of whether notice of judgment entry was received).

8

reopen the time in which to appeal, Rule 4(a)(6) sends a message

that the lawyer has the minimal duty to check on the status of a

pending case at least once within six months of submission of the

briefs.14 Thus, waiting almost three-quarters of a year to check

in on a case is simply not reasonable behavior.

We are satisfied that the district court did not abuse its

discretion in denying Hodge’s Rule 4(a)(6) motion.

AFFIRMED.