FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 09, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 04-10986

 

D.C. Docket No. 94-00492-CV-J-20

ETHERIA VERDEL JACKSON, 

Petitioner-Appellant,

versus

JAMES CROSBY, Secretary,

Florida Department of Corrections,

 

Respondent-Appellee.

 

Appeal from the United States District Court

for the Middle District of Florida

 

(July 9, 2004)

Before TJOFLAT, BLACK and CARNES, Circuit Judges,

TJOFLAT, Circuit Judge:
 Rule 59 authorizes motions for new trials and to alter or amend the judgment. Part (a) 1

of Rule 59 specifies the grounds for motions for a new trial. The portion of part (a) pertaining to

bench trials, such as evidentiary hearings in habeas corpus actions brought in the district courts,

states:

A new trial may be granted . . . in an action tried without a jury, for any of the reasons for

which rehearings have heretofore been granted in suits in equity in the courts of the

United States. On a motion for a new trial in an action tried without a jury, the court may

open the judgment if one has been entered, take additional testimony, amend findings of

fact and conclusions of law or make new findings and conclusions, and direct the entry of

a new judgment. 

Part (e) of the rule, relating to motions to alter or amend judgment, states: “Any motion to alter

or amend a judgment shall be filed no later than 10 days after entry of the judgment.”

Attorneys Eric C. Pinkard and David R. Gemmer filed the Rule 59(e) motion on

petitioner’s behalf. In addition to requesting Rule 59(e) relief, the motion asked the district court

to hold the habeas proceeding in abeyance pending the Supreme Court's decision in Summerlin v.

Stewart, 341 F.3d 1082 (9th Cir. 2003), cert. granted sub nom Schriro v. Summerlin, 124 S. Ct.

833, 157 L. Ed. 2d 692 (Dec. 1, 2003), and to grant petitioner leave to amend his second

amended petition for a writ of habeas corpus so that he could present several substantive

constitutional claims (which the district court’s judgment had denied) as aspects of a new

ineffective assistance of counsel claim. According to petitioner, his attorney, in appealing his

conviction and sentence to the Florida Supreme Court, deprived him of his right to the effective

assistance of counsel when he failed to present these substantive constitutional claims in

petitioner’s brief. These issues are not before us because we are reviewing only the question of

our jurisdiction necessitated by the untimely filing of the motion. See infra, part II. For ease of

discussion, we refer to the motion in its entirety as petitioner’s “Rule 59(e)” motion.

2

I.

On December 15, 2003, the district court entered a final judgment in this

case denying petitioner habeas corpus relief from his conviction and sentence for

capital murder. On January 5, 2004, petitioner filed a motion to alter or amend

judgment pursuant to Federal Rule of Civil Procedure 59(e). The motion was

1

untimely because petitioner failed to file it within ten days of the entry of final

judgment as Rule 59(e) requires. On January 29, 2004, the district court entered a
 The order consisted of one sentence. The sentence contained no reason for the ruling.

2

 Our April 7 order stated that petitioner’s notice of appeal was: 

3

timely to appeal the district court’s January 29, 2004, order denying the Rule 59(e)

motion, construed as a motion under Fed. R. Civ. P. 60(b), for relief and the appeal MAY

PROCEED from that order. Rice v. Ford Motor Co., 88 F.3d 914 918-19 (11th Cir.

1996); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). The appeal

shall be limited to a determination of whether the district court abused its discretion in

denying the motion for relief and to set aside the judgment, and shall not extend to the

validity of the underlying order per se.

 Eric C. Pinkard, one of the lawyers who filed petitioner’s Rule 59(e) motion in the 4

district court, filed petitioner’s motion for reconsideration.

3

written order stating that the motion was “DENIED.” On February 27, 2004, 2

petitioner filed a notice of appeal in the district court; the notice stated that he was

appealing the final judgment of December 15, 2003 and the order of January 29,

2004.

On April 7, 2004, this panel dismissed petitioner’s appeal of the December

15, 2003 judgment in an order containing the following language: 

Appellant’s motion to alter or amend, made pursuant to Fed. R. Civ. P. 59(e)

was not filed within ten business days of and did not toll the appeal period

for the December 15, 2003, judgment. Fed. R. App. P. 4(a)(4)(A); Fed. R.

Civ. P. 6(a), 58, 60(b). Therefore the appeal is DISMISSED as to that

order.3

On April 20, 2004, petitioner moved this court to reconsider its April 7

order dismissing his appeal of the December 15, 2003 judgment. In his motion, 4

petitioner conceded that the Rule 59(e) motion he filed in the district court on

January 5, 2004 might be untimely. If untimely, he asks that we treat the motion
 In referring to Rule 6, Gemmer was apparently focusing on the provisions of part (e) of 5

the rule, which states:

Whenever a party has the right or is required to do some act or take some proceedings

within a prescribed period after the service of a notice or other paper upon the party and

the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days

shall be added to the prescribed period.

Rule 5 governs “Serving and Filing Pleadings and Other Papers.” Part (a), speaks, in pertinent

part, to “Service: When Required.”

Except as otherwise provided in these rules, every order required by its terms to be

served, every pleading subsequent to the original complaint unless the court otherwise

orders because of numerous defendants, every paper relating to discovery required to be

served upon a party unless the court otherwise orders, every written motion other than

one which may be heard ex parte, and every written notice, appearance, demand, offer of

judgment, designation of record on appeal, and similar paper shall be served upon each of

the parties. No service need be made on parties in default for failure to appear except that

4

as timely under the “unique circumstances” doctrine. He cites Willis v. Newsome,

747 F.2d 605 (11th Cir. 1984), in which we granted relief under that doctrine, and

states that the unique circumstances surrounding the filing of petitioner’s Rule

59(e) motion “fall[] squarely within the situation compelling relief in Willis.” 

The “unique circumstances” petitioner relies on are set out in the affidavit of

one of the attorneys who filed his Rule 59(e) motion, David R. Gemmer. In his

affidavit, Gemmer states that “[o]ne of my tasks [in filing the Rule 59(e) motion]

was to determine the deadline for filing the motion.” To this end, he reviewed the

Federal Rules of Civil Procedure and the district court’s local rules. He

understood from that review that the Motion had to be timely filed within

ten days from the date of entry of the order in question. However, [he] also

was aware of Fed. R. Civ. P[.] 6 and Local Rule 4.20, which provided for

three additional days to file when there had been service of a notice or paper

by mail.[ ] While the 5
pleadings asserting new or additional claims for relief against them shall be served upon

them in the manner provided for service of summons in Rule 4.

(emphasis added). Subparts (b)(2)(B), (C), and (D), respectively, authorize service [under part

(a)], by mail, by leaving a copy with the clerk of the court “if the person served has no known

address,” and by “other means, including electronic means.”

The district court’s order denying petitioner habeas corpus relief did not require “by its

terms” that it be “served” on the parties. The final judgment entered pursuant to that order on

December 15, 2003 was “set forth on a separate document,” as required by Federal Rule of Civil

Procedure 58. The clerk thereafter served copies of the order and final judgment on the parties as

required by Rule 77(d). It is important to note that the clerk’s failure to notify a party of the

issuance of an order or the entry of final judgment “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.” Fed. R. Civ. P. 77(d). By

the same token, the fact that the clerk serves the parties by mail with notice of the entry of

judgment does not extend the time for filing a notice of appeal by three days pursuant to Rule

6(e). 

For purposes of Rule 59(b) and (e)’s ten-day limitations periods, we focus on when the

judgment is entered, not when it is served. Fed. R. Civ. P. 59(b), (e) (stating that such motions

“shall be filed no later than 10 days after entry of the judgment” (emphasis added)). Rule 58

governs entry of judgment. Part (a)(1) requires, “Every judgment and amended judgment must

be set forth on a separate document . . . .” Part (a)(1) then lists exceptions to the separate

document requirement that are not applicable here. Part (b) states, in pertinent part:

Judgment is entered for purposes of these rules: . . . 

(2) if Rule 58(a)(1) requires a separate document, when it is entered in the civil docket

under Rule 79(a) and when the earlier of these events occurs:

(A) when it is set forth on a separate document, or

(B) when 150 days have run from the entry in the civil docket under Rule 79(a).

In this case, Rule 58(a)(1) required a separate document for the December 15, 2003 judgment. 

The judgment satisfied both prongs of Rule 58(a)(2) on December 15, 2003, when it was both

entered on the docket and set forth in a separate document. December 15 was therefore the date

the judgment was entered under Rule 58, and the date from which the Rule 59(e) limitations

period ran. Because Rule 6(e) only applies when a party “has the right or is required to do some

act or take some proceedings within a prescribed period after the service” (emphasis added),

while Rule 59(b) and (e) require action to be taken within “10 days after entry of the judgment,”

(emphasis added) Rule 6(e) can never extend the time for filing a Rule 59(b) or (e) motion.

Local Rule 4.20 provides:

(a) Pursuant to Fed.R.Civ.P. 6(a) and (e), whenever a period of time prescribed or

allowed by the Federal Rules of Civil Procedure or the Rules of the District Court of the

United States for the Middle District of Florida, or by any applicable statute is less than

eleven (11) days and there has been service of a notice or other paper upon a party by

mail, then the period of time which that party has to act shall be computed as follows:

(1) By first calculating the original prescribed period pursuant to Fed.R.Civ.P. 6(a); and

5
(2) By then adding three (3) days to the original prescribed period pursuant to

Fed.R.Civ.P. 6(e). The three (3) days shall be calculated beginning with the day following

the last day of the original prescribed period, and shall be counted consecutively

regardless of whether any day of this three (3) day period is a Saturday, Sunday, or legal

holiday as defined in Fed.R.Civ.P. 6(a). The third day shall be treated as the last day of

the period unless it is a Saturday, Sunday, or legal holiday in which event the period runs

until the end of the next day which is not a Saturday, Sunday, or legal holiday.

M.D. Fla. Local R. 4.20.

 Gemmer “did not obtain or recall the name of the clerk [he] spoke with.” 6

6

[December 15, 2003 judgment] had been mailed to [his office, he] was not

sure whether the local rule applied to the Motion. [He] either had no

knowledge or had no recollection of Cavaliere v. Allstate Insurance Co.,

996 F.2d 1111 (11th Cir. 1993).” [See infra part II.]

After reviewing the above rules, Gemmer telephoned “the office of the

Clerk in the Federal District Court . . . several days before December 31, 2003.”6

During his conversation with the woman who answered the telephone, he

mentioned Local Rule 4.20 and asked whether Local Rule 4.20 “applied. She

affirmatively told [him] that Local Rule 4.20 applied to [his] situation.” 

Responding to his statement that he was having “problems with counting the

holidays,” she said that “December 25 and 26th were official court holidays, the

extra day being established by the President in a special order.” He then “counted

off the days accounting for the holidays and Rule 4.20 and determined that

Monday, January 5, 2004, would be the deadline for filing the [m]otion.” “Had

the clerk expressed any doubt . . . about the application of Rule 4.20, [he] would
 If petitioner is correct that under Local Rule 4.20, his Rule 59(e) motion was timely,

7

application of the unique circumstances doctrine is unnecessary. He invokes the doctrine as a

cautionary measure, realizing that Local Rule 4.20’s application is problematic. 

7

have conducted additional research, but her answer was clear, emphatic, and

unreserved, as was her affirmation that, accounting for holidays, weekends, and

Rule 4.20, January 5, 2004 was [his] deadline.” Nonetheless, “[b]oth the clerk and

[Gemmer] acknowledged that the clerk’s representations were not binding.” 

Gemmer goes on to state that his 

confidence that the motion had passed muster as timely was increased when

the state and the court addressed the Application for Certificate of

Appealability substantively [i.e., for the purpose of identifying claims that

satisfied the criterion of 28 U.S.C. § 2253(c)(3)] , rather than dismissively

as based on a void notice of appeal. This buttressed [his] belief that the

denial of the Motion to Alter or Amend was based on the merits.

In the body of his motion for reconsideration, petitioner urges that, in

determining whether the unique circumstances doctrine applies, we should take

into account, in addition to what Gemmer says in his affidavit, the following

factors. First, the State, in responding to his Rule 59(e) motion, did not contend

7

that it was untimely. “Had it done so in a timely fashion . . . , [petitioner] could

have filed the Notice of Appeal in a timely fashion.” Second, 

[h]ad the trial judge denied the Motion for untimeliness January 27, 2004,

[petitioner] would have had more than two weeks to seek relief for

excusable neglect under Fed. R. App. P. 4(a)(5). Instead, the lack of any

objection or notice of the issue in this case lulled counsel into proceeding on
 Federal Rule of Appellate Procedure 4(a)(4)(A) also tolls the time for filing a notice of 8

appeal when the appellant moves the district court for the entry of judgment under Rule 50(b), to

amend or make additional factual findings under Rule 52(b), for attorney’s fees under Rule 54,

for a new trial under Rule 59, or for relief under Rule 60 “if the motion is filed no later than 10

days after the judgment is entered.” When one of these motions is filed, the time for filing an

appeal challenging the final judgment runs “from the entry of the order disposing of the last such

remaining motion.” Fed. R. App. P. 4(a)(4)(A).

8

the schedule based on the assumption the Rule 59(e) motion was timely. 

II.

A notice of appeal challenging the final judgment in a civil action must be

filed no later than thirty days after the judgment is entered on the district court’s 

docket. Fed. R. App. P. 4(a)(1)(A). A timely Rule 59(e) motion to alter or amend

the judgment automatically tolls this thirty-day period, so that it begins to run from

the date of the order denying the motion. Fed. R. App. P. 4(a)(4)(A). The 8

motion to alter or amend the judgment is timely if filed “no later than 10 days after

entry of judgment.” Fed. R. Civ. P. 59(e); see Advanced Estimating Sys., Inc. v.

Riney, 77 F.3d 1322, 1323 (11th Cir. 1996) (“Untimely motions under Rule[] 59

. . . will not toll the time for filing an appeal.”). 

Because the time period for filing a motion to alter or amend the judgment

is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are

not included in the computation. Fed. R. Civ. P. 6(a). Legal holidays include,

inter alia, Christmas Day, New Year’s Day, and “any other day appointed as a
 According to petitioner, the motion was timely if one takes into account three days

9

under Local Rule 4.20 and December 26 as a “day appointed as a holiday by the President.” See

Fed. R. Civ. P. 6(a). In his affidavit, Gemmer states that the clerk’s office employee with whom

he spoke over the telephone told him that the President had appointed December 26 a holiday. 

The record does not indicate whether December 26 was in fact such a holiday, and we decline to

take judicial notice of the matter on our own initiative. Whether December 26 was a declared

holiday is of no moment, however. Petitioner fails to convince us that Local Rule 4.20 provided

him three extra days to file his Rule 59(e) motion. In short, even if December 26 was a holiday

ordered by the President, petitioner had to file his motion no later than Wednesday, December

31, 2003.

9

holiday by the President or the Congress of the United States . . . .” Id.

In this case, the judgment was entered on Monday, December 15, 2003. To

toll the time for filing an appeal, petitioner’s motion to alter or amend the

judgment had to have been filed by Tuesday, December 30, which was ten days

later, not counting two weekends and Christmas Day. The motion was actually

filed on January 5, 2004. The motion was therefore untimely and did not toll the 9

time for filing a notice of appeal from the December 15 judgment. Accordingly,

the notice of appeal was due, as prescribed by Federal Rule of Appellate

Procedure 4(a)(4)(A), on January 14, 2004, which was thirty days after the entry of

the December 15 judgment. The notice of appeal petitioner filed on February 27,

2004 was therefore untimely.

According to his affidavit, Gemmer believed that “Fed. R. Civ. P[.] 6 and

Local Rule 4.20 . . . provided for three additional days to file when there had been

service of a notice or paper by mail.” He had received the December 15, 2003
 The panel’s opinion in Cavaliere does not indicate whether Cavaliere contended that 10

he received the final judgment by mail. According to the opinion, his argument was “as follows:

Under Rule 77(d), the court clerk was required to serve the judgment on Cavaliere by mail;

Cavaliere had the ‘right’ to file his motion for a new trial ‘within a prescribed period’; therefore,

Cavaliere was entitled to three extra days.” 996 F.2d at 1113. The fact that Rule 77(d) requires

the clerk to notify the parties of the entry of final judgment does not extend the time for filing a

notice of appeal and, thus, the time for filing a Rule 59 motion. See supra note 5. 

10

judgment by mail; nevertheless, he was “not sure whether the local rule applied to

[his Rule 59(e)] Motion.” 

The Rule 6 provision Gemmer was referring to is part (e), which we quote

in the margin. See supra note 5. Gemmer was unfamiliar with our decision in

Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th Cir. 1993). Had he read it, he

would have discovered that the appellant there, Cavaliere, made the same

argument about Rule 6(e) that he and his co-counsel advance here. Cavaliere

argued that because the final judgment was “served” by the clerk of the court by

mail, Rule 6(e) provided him with three extra days to file his Rule 50(b) motion 10

for new trial. We rejected Caviliere’s argument. We held that Rule 6(b), which

bars the district court from “extend[ing] the time for taking any action under Rules

50(b) . . . and [59](e),” renders Rule 6(e) ineffective with respect to the time for

filing Rule 59 motions. Given this holding, is petitioner’s argument that Local

Rule 4.20 provided him with three extra days for filing his Rule 59(e) motion

valid? The answer has to be no. 
11

The district court promulgated Local Rule 4.20 under the authority provided

by 28 U.S.C. § 2071(a), which states:

The Supreme Court and all courts established by Act of Congress

may from time to time prescribe rules for the conduct of their

business. Such rules shall be consistent with Acts of Congress and

rules of practice and procedure prescribed under [28 U.S.C. § 2072].

(emphasis added.). Federal Rule of Civil Procedure 6 (and each of its subparts)

was prescribed under § 2072. Rule 83 states in part (a) that “[a] local rule shall be

consistent with—but not duplicative of—Acts of Congress and rules adopted

under 28 U.S.C. §2072 . . . .” Local Rule 4.20, to the extent it is inconsistent with

Rule 6(e), is therefore invalid. Local Rule 4.20’s allowance of three extra days for

filing Rule 59 motions is inconsistent with Rule 6(b)’s ban on extending the rule’s

ten-day limitations period and is therefore a nullity. In sum, petitioner’s Rule

59(e) motion was untimely.

III.

Petitioner asks that we treat his motion as timely under the “unique

circumstances” doctrine. The unique circumstances doctrine excuses a litigant’s

failure to abide by the jurisdictional time limitations established by the rules, such

as the ten-day limitations period prescribed by Rule 59, when the failure is caused

by the litigant’s reasonable reliance on a specific assurance by a judicial officer. 
12

Hollins v. Dep’t of Corr., 191 F.3d 1324, 1327 (11th Cir. 1999). In determining

whether the doctrine should be invoked, we focus on “the reasonableness of the

appellant’s reliance on the action of the district court.” Pinion v. Dow Chem.,

U.S.A., 928 F.2d 1522, 1532 (11th Cir. 1991). “[A]ny judicial action prior to the

expiration of the relevant time period for appeal that could have lulled the

appellant into inactivity may permit our application of the doctrine.” Hollins, 191

F.3d at 1327 (citing Pinion, 928 F.2d at 1529) (marks and citations omitted). 

The unique circumstances petitioner cites are set out in Gemmer’s affidavit

and the body of petitioner’s motion for reconsideration. Reduced to their

essentials, they are: (1) that Gemmer obtained the assistance of someone in the

clerk’s office to calculate the number of days he had in which to file petitioner’s

Rule 59(e) motion; specifically, the holidays that were to be counted and whether,

under Rule 6(e) and Local Rule 4.20, he had three extra days, in addition to the ten

days provided by the rule, to file the motion; (2) that the State did not object to the

motion as untimely; and (3) that the district court, in denying the motion, did not

do so on the ground that it was untimely filed. 

The facts petitioner relies upon to satisfy the unique circumstances inquiry

mirror those relied upon by appellant Dow Chemical in Pinion. If anything, Dow

Chemical presented a stronger case for the application of the doctrine than
 The notice of appeal was so late that any extension Federal Rule of Appellate 11

Procedure 4(a)(5) may have provided was unavailable. 

13

petitioner has. In Pinion, the district court, giving effect to the jury’s verdict,

entered a $2,450,000 judgment against Dow Chemical. 928 F.2d at 1524. Two

days later, Dow Chemical presented the court with a consent order (signed by

counsel for Dow Chemical and the plaintiffs) purporting to give Dow Chemical a

thirty-day extension to file post-trial motions. Id. The court signed that consent

order and another consent order several weeks later. Id. Within the time provided

by the second extension, Dow Chemical filed a motion for judgment

notwithstanding the verdict pursuant to Rule 50(b) of the Federal Rules of Civil

Procedure and, alternatively, a motion for new trial pursuant to Rule 59. Id. The

court denied both motions, and Dow Chemical appealed. Id.

Dow Chemical filed its notice of appeal ninety-six days after the entry of

final judgment, long after the thirty-day appeal period Rule 4(a) of the Federal

Rules of Appellate Procedure provides. Although the plaintiffs did not question 11

our jurisdiction to entertain the appeal, we did so own our own initiative. Id.

After concluding that Dow Chemical’s post-trial motions were untimely and

thus did not toll the time for taking an appeal under Rule 4(a), we launched into

the unique circumstances inquiry, assessing the “reasonableness of [Dow
14

Chemical’s] reliance on the action of the district court.” Id. at 1532. Specifically,

“[w]as it reasonable for Dow to rely upon the district court’s improper extension

of the time for filing post-trial motions, in spite of the explicit language of Rule

6(b) prohibiting the district court from granting such an extension?” Id. Our

answer was clear: “When the problem is framed in this manner, we must answer

‘No.’” Id. “[T]he more apparent it becomes that the party’s filing error stems as

much from the party’s own negligence in simply not reading or inquiring about the

Rules, as it does from actual reliance on some action by the district court, the

circumstances become far less ‘unique.’” Id. at 1533. 

In Pinion, counsel admitted that they “‘inadvertently overlooked the Rule

6(b) prohibition.’” Id. In the case at hand, petitioner’s counsel was similarly

neglectful, overlooking Rule(6)(b)’s prohibition and our decision in Cavaliere. In

Pinion, we cited the Third Circuit’s comments in a case presenting a similar

scenario:

The unique circumstances doctrine has never been extended to an

attorney’s miscalculation of the applicable time limits, and we see no

reason to do so here even if the trial judge also shared that incorrect

assumption.

Id. (quoting Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1365-66 (3d Cir.

1990)). We also cited a Tenth Circuit case for the proposition that an attorney
15

cannot reasonably rely on an improper enlargement of the time to file a notice of

appeal “in light of his ‘duty to familiarize himself with the appellate rules.’” See

id. (quoting Certain Underwriters at Lloyds of London v. Evans, 895 F.2d 1255,

1257-58 (10th Cir. 1990)). In rejecting the argument that counsel were justified in

relying on the district court’s unlawful ruling, the Certain Underwriters court said:

counsel either “knew or should have known” that the district court had exceeded

the maximum allowable extension under App. Rule 4(a)(5). 896 F.2d at 1258. So,

too, in Pinion: counsel were not entitled to rely on the district court entry of an

order extending the ten-day period for filing post-trial motions under Rules 50(b)

and 59. To this effect we cited a Seventh Circuit observation in “United States v.

Hill, 826 F.2d 507, 508 (7th Cir. 1987) (‘The Supreme Court has not held or even

hinted that a defendant’s own neglect, or that of his lawyer, extends a

jurisdictional time limit.’).” Pinion, 928 F.2d at 1533. 

Pinion makes clear that it was unreasonable for petitioner’s counsel to rely 

on the State’s failure to oppose petitioner’s Rule 59(e) motion as time-barred or to

read the district court’s denial of the motion as a ruling on its merits. And, if

counsel in Pinion could not rely on the district court’s extension orders, certainly

counsel in this case could not rely on an unknown clerk’s office employee’s

statement that Local Rule 4.20 gave counsel three extra days to file petitioner’s
 Petitioner argues that Willis v. Newsome, 747 F.2d 605 (11th Cir. 1984), in which we 12

provided relief under the unique circumstances doctrine, dictates our decision. We disagree. The

circumstances in that case and the circumstances here cannot reasonably be considered

analogous. There, “the district court’s filing clerk” told appellant’s attorney that appellant’s

notice of appeal would be stamped filed on the date he placed the notice in the United States

mails. Id. at 606. In essence, what the filing clerk told counsel was that the post office was a

repository of the clerk’s office, a representation that counsel could neither affirm nor refute by

consulting the Federal Rules of Procedure or the case law.

16

motion, especially after the employee told counsel, in Gemmer’s words, that her

“representations were not binding.”12

Precedent requires that we deny petitioner’s motion for reconsideration. It

is, accordingly,

DENIED.
17

BLACK, Circuit Judge, specially concurring:

Because this is a capital case, I find the result reached today very troubling. 

Ultimately, however, the facts in this case do not permit us to apply the “unique

circumstances” doctrine. 

There was no reliance upon a representation or order from the district court. 

See Butler v. Coral Volkswagen, Inc., 804 F.2d 612, 613 (11th Cir. 1986)

(discussing petitioner’s reliance on the district court’s extension of the time in

which a new trial motion could be amended); Inglese v. Warden, U.S.

Penitentiary, 687 F.2d 362, 362–63 (11th Cir. 1982) (discussing petitioner’s

reliance on the district court’s order extending the time in which a Rule 59(e)

motion could be filed). Nor was there reliance on assurances received from the

clerk’s office pertaining to the administrative functions of the clerk’s office, about

which attorney familiarity could not be presumed. See Hollins v. Department of

Corrections, 191 F.3d 1324, 1326 (11th Cir. 1999) (observing that the district

court’s PACER system failed to show the district court’s entry of a final order);

Willis v. Newsome, 747 F.2d 605, 606 (11th Cir. 1984) (noting that the clerk’s

office gave assurances regarding “local custom” and practice for stamping notices

of appeal). 

Here, Petitioner’s counsel called and asked the clerk for legal
18

advice—specifically, how to interpret the procedural rules regarding the time for

filing a Rule 59(e) motion. Petitioner thus did not rely on either representations

made by the district court or assurances from the clerk’s office pertaining to an

administrative function.

The “unique circumstances” doctrine does not permit us to reassign the

lawyer’s obligation to read the relevant rules and case law. In other words, it is

not the responsibility of the clerk’s office to inform the lawyer of the law. See 

Rezzonico v. H & R Block, Inc., 182 F.3d 144, 152 (2d Cir. 1999) (finding no

unique circumstances where appellants relied on representations from the clerk’s

office involving legal matters). As we have previously noted, even in a case as

grave as this, an equitable remedy such as the “unique circumstances” doctrine

does “not exist merely to rehabilitate attorney oversight or inadvertence.” Pinion

v. Dow Chemical, U.S.A., 928 F.2d 1522, 1534 (11th Cir. 1991). Therefore, I must

very reluctantly join in the opinion.
19

CARNES, Circuit Judge, specially concurring:

Like Judge Black, I’m not fond of the result in this case but recognize that

the law and the facts with which we are presented require it. 

This would-be appellant has an experienced attorney who serves as

Assistant Capital Collateral Regional Counsel-Middle Region of Florida. 

Experienced as this counsel is, he screwed up. If one credits his affidavit, which

given the present posture of the case we must, he unjustifiably sought and relied

upon the advice of an unidentified person in the local clerk’s office when he could

and should have found the answer to his legal question himself. Not only that, but

his affidavit discloses that both the person in the clerk’s office and counsel

acknowledged during their telephone conversation “that the clerk’s representations

were not binding.” 

In these circumstances, reliance upon that advice was unreasonable to say

the least, and more to the point, it is outside our unique circumstances doctrine.

See Pinion v. Dow Chem. U.S.A., 928 F.2d 1522 (11th Cir. 1991); Willis v.

Newsome, 747 F.2d 605, 606 (11th Cir. 1984). If counsel had sufficiently

researched the matter about which he had a question, as he should have, he would

have turned up our decision in Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th

Cir. 1993), and Fed.R.Civ.P. 83(a)(1). Instead, he put at risk his client’s right to
20

appeal the judgment against him in return for the prospect of gaining a few days 

extra time for filing a Rule 59(e) motion. 

If this were a case involving two corporations, we would apply the

established rules, which require that we dismiss the appeal, and would do that with

little or no discussion. What has brought forth more in response to the motion for

reconsideration in this case is the fact that the party whose appeal is being

dismissed is on death row, and the judgment he is seeking to appeal is one denying

him federal habeas relief. That makes us as judges want to hear and decide the

appeal instead of dismiss it for lack of jurisdiction because of an untimely notice

of appeal. However, the rules relating to timeliness of filing and appellate court

jurisdiction apply without respect to the identity of the parties or the nature of the

case. We do not have one set of rules for petitioners and their attorneys in capital

cases and another set for everyone else. 

As judges we are obligated to follow the law, regardless of whether we

personally like the result of doing so. We have done that.