1 Defendant/appellee/appellant Willie Wil liams died intestate on

October 19, 1998. Accordingly, Jo Ann Williams, administratrix of

Willie Williams’s estate, has been substituted as

defendant/appellee/appellant in this matter. Revised December 15, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 97-31325

__________________

MIDWEST EMPLOYERS CASUALTY CO.,

Plaintiff-Appellant/Appellee,

versus

JO ANN WILLIAMS, 1

Defendant-Appellee/Appellant.

______________________________________________

Appeals from the United States District Court for the

Western District of Louisiana

______________________________________________

November 24, 1998

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Midwest Employers Casualty Co. (“Midwest”) appeals the

district court’s supplemental memorandum ruling ordering it to

pay workers’ compensation benefits and medical expenses to Willie

Williams. We dismiss the appeal for lack of jurisdiction.2 By consent of the parties and a referral from the district court,

the case was decided by Magistrate Judge John Simon.

3 All dates are 1997.

4 Under Federal Rule of Ap pellate Procedure 4(a)(4), the timely

filing of a Rule 59 motion for a new trial extends the time

available for filing a notice of appeal. An untimely post-judgment

motion, however, does not affect the time for filing an appeal. See

Knapp v. Dow Corning Co. , 941 F.2d 1336, 1338 (5th Cir. 1991).

5 Federal Rule of Civil Procedure 6(e) states: “Whenever a party has

t he right or is required to do some act or take some proce edings

within a prescribed period after the service of a notice or other

2 The magistrate 2 set forth the supplemental memorandum ruling

on October 15, 1997. On November 3, 3 Midwest filed a motion for a

new trial. Williams opposed that motion, stating that under

Federal Rule of Civil Procedure 59, Midwest had only ten days

following the supplemental memorandum ruling in which to file its

motion. While Midwest’s motion for a new trial was pending,

Midwest’s time for filing a notice of appeal expired. On November

26, the magistrate denied Midwest’s motion for a new trial as

untimely. On December 9, Midwest filed a motion to extend the

time for filing an appeal, 4 which Williams opposed. On December

11, the magistrate extended Midwest’s time to appeal until

December 21. Under Federal Rule of Appellate Procedure 4(a)(5),

the district court may extend the time for filing a notice of

appeal if the party seeking to appeal demonstrates “excusable

neglect” or “good cause” for its earlier failure to file. The

magistrate found that Midwest’s counsel had misread Federal Rule

of Civil Procedure 6(e) 5 to apply to judgments served by mail andpaper upon the party and the notice or paper is served upon the

party by mail, 3 days shall be added to the prescribed period.”

3 mistakenly believed he had three extra days to file the motion

for a new trial. According to the magistrate, the misreading of

Rule 6(e) constituted “excusable neglect” for purposes of Rule

4(a)(5). The magistrate therefore extended Midwest’s time to file

an appeal because that time had lapsed while Midwest waited for a

ruling on a post-judgment motion that it believed was timely

filed. Williams appeals the magistrate’s decision to extend

Midwest’s time to appeal, contending that the magistrate abused

his discretion and this Court is without jurisdiction to hear

Midwest’s appeal.

We review the magistrate’s decision for abuse of discretion,

see Latham v. Wells Fargo Bank , 987 F.2d 1199 (5th Cir. 1993),

and we agree that the magistrate did abuse his discretion in

granting Midwest additional time to file its appeal.

This Court’s recent opinion in Halicki v. Louisiana Casino

Cruises, Inc. , 151 F.3d 465 (5th Cir. 1998) informs our decision.

In Halicki , an employment discrimination case, the district court

granted summary judgment for the defendants, after which the

plaintiff, Halicki, had 30 days to file a notice of appeal.

Mistakenly believing that he had extra time under Rule 6(e)

because the judgment was served by mail, Halicki’s counsel filed

a Rule 59(e) motion two days late. A timely Rule 59(e) motion4

would have suspended the 30-day period for filing an appeal.

Instead, the time for filing notice of appeal lapsed while

Halicki’s counsel waited for a ruling on the Rule 59(e) motion.

The district court refused to extend Halicki’s time to appeal,

holding that misreading Rule 6(e) to apply to judgments served by

mail did not constitute excusable neglect under Appellate Rule

4(a)(5). This Court affirmed:

Apparently unaware that the plain language of the

rules, well-settled hornbook law, and every other

circuit to address the issue had rejected the

applicability of rule 6(e) to Rule 59(e), [Halicki’s]

attorney waited until the tenth day to mail the rule

59(e) motion, causing it to arrive at the district

court two days late.

. . . . . . . . The nature of Halicki’s mistake weighs

heavily against a finding of excusable neglect.

Although in Clark we left open the possibility

that some misinterpretations of the federal rules may

qualify as excusable neglect, such is the rare case

indeed. Where, as here, the rule at issue is

unambiguous, a district court’s determination that the

neglect was inexcusable is virtually unassailable. Were

it otherwise, “almost every appellant’s lawyer would

plead his own inability to understand the law when he

fails to comply with a deadline.”

Halicki , 151 F.3d at 467-70 (quoting Advanced Estimating Sys.,

Inc. v. Riney , 130 F.3d 996, 998 (11th Cir. 1997)).

One significant fact separates Halicki from the instant

case. In Halicki , we reviewed a district court’s decision not to

grant additional time to file the notice of appeal; here, we

review the magistrate’s decision to grant the additional time.

Courts of appeal often give more leeway to a district court’s6 Pioneer Investment discussed the meaning of “excusable neglect”

under Bankruptcy Rule 9006(b)(1). Relying on the consistent use of

“excusable neglect” in federal rules, this Court in United States

v. Clark

, 51 F.3d 42 (5th Cir. 1995), applied the Pioneer

Investment discussion to Appellate Rule 4(a)(5) in criminal cases.

See id. at 44. In Halicki

, we extended Pioneer Investment under the

Clark rationale to civil cases. See Halicki , 151 F.3d at 468.

5 decision to grant an extension than they give to a district

court’s refusal to do so. See Charles Alan Wright et al., Federal

Practice and Procedure § 3950.3 (2d ed. 1996). Such additional

leeway notwithstanding, however, the magistrate’s decision here

cannot survive. We remain mindful of the “excusable neglect”

standard set forth by Pioneer Investment Services Co. v.

Brunswick Associates Limited Partnership , 507 U.S. 380, 113 S.

Ct. 1489 (1993):

[T]he determination is at bottom an equitable one,

taking account all of the relevant circumstances

surrounding the party’s omission. These include . . .

the danger of prejudice . . ., the length of the delay

and its potential impact on judicial proceedings, the

reason for the delay, including whether it was within

the reasonable control of the movant, and whether the

movant acted in good faith.

Id. at 395, 113 S. Ct. 1489 (quoted in Halicki , 151 F.3d at

468). 6 Other than stating that Williams would not suffer undue

prejudice, the magistrate relied solely on “the different

application of the 3-day extension rule” being a “trap for the

unwary” when he found excusable neglect. As Halicki states, the

nature of this very mistake “weighs heavily against a finding of

excusable neglect.” We therefore find that the magistrate judge6

abused his discretion in granting Midwest additional time to file

notice of an appeal. Accord Prizevoits v. Indiana Bell Telephone

Co. , 76 F.3d 132 (7th Cir. 1996) (overturning a grant of

additional time to file notice of appeal where the plaintiff’s

attorney misapplied Federal Rule of Civil Procedure 6(b)); Kyle

v. Campbell Soup Co. , 28 F.3d 928 (9th Cir. 1994) (reversing an

order granting an enlargement of time under Rule 6(b) to file a

motion for attorney’s fees because an attorney’s mistake about

Rule 6(e) did not amount to excusable neglect). We continue to

leave open the possibility that some misinterpretations of the

federal rules could constitute excusable neglect, but we hold, as

in the Halicki opinion, that this is no such “rare case indeed.”

The dissent argues that United States v. Evbuomwan , No. 93-

1738 (5th Cir. 1994) (unpublished opinion) (reported at 38 F.3d

89 (table case)), and Lackey v. Atlantic Richfield Co. , 990 F.2d

202 (5th Cir. 1993), compel another result in this case. We find

those cases inapposite. In Evboumwan , a criminal case, counsel

misunderstood Federal Rule of Appellate Procedure 26(c), which

extends by three days the time to respond to papers served by

mail, to apply to notices of appeal. We noted that, under some

circumstances and particularly in criminal cases, Rule 4(b)’s

excusable-neglect provision could cover ignorance or neglect of

counsel in filing late notices of appeal. See Evbuomwan at 2

(citing United States v. Lewis , 522 F.2d 1367, 1369 (5th Cir.7

1975)). In the instant case, unlike in Evbuomwan , counsel did not

misinterpret a rule governing the time to appeal. Instead,

counsel allowed the appeal deadline to pass while he waited for a

ruling on the motion for a new trial, even while Williams’s

opposition to the motion had already indicated that the motion

may have been untimely. We cannot equate this with the good-faith

misinterpretation of an appeal deadline that led to an equitable

decision for the Evbuomwan criminal defendant. In Lackey , the

district court extended time for filing an amended notice of

appeal where the plaintiffs had used “et al.” instead of listing

all parties. The district court found that the original timely

filed notice of appeal, although insufficient to invoke appellate

jurisdiction, sufficed to put the parties on notice within the

prescribed period. See Lackey , 990 F.2d at 206. In the instant

case, Williams and Midwest both watched the deadline pass without

a notice of appeal, and Williams had no reason to think that an

appeal would come later. We find Halicki , which mirrored the

facts of the instant case, more persuasive than either Lackey or

Evbuomwan

.

Midwest’s notice of appeal was not timely filed, and there

was no excusable neglect. This Court will not assume

jurisdiction, and the appeal is DISMISSED.7 The parties agreed to proceed before a Magistrate Judge. S ee

28 U.S.C. § 636(c).

8 Because Willie Williams died during this appeal’s pendency, we

have substituted his administratrix, Jo Anne Williams, as

appellant. See F ED

. R. A PP

. P. 43(a).

9 Rule 59(b) requires that a motion for new trial “be filed no

later than 10 days after the entry of the judgment.” F E D

. R. C IV

. P. 59(b). EMILIO M. GARZA, Circuit Judge, dissenting:

The majority decides that the Magistrate Judge abused his

discretion in enlarging the period to file a notice of appeal.

Because our precedents establish that the Magistrate Judge

committed no reversible error, I dissent.

I

The Clerk of Court entered in the docket an amended judgment

rendered by the Magistrate Judge 7 in favor of Willie Will iams 8 on

October 16, 1997. A copy of the amended judgment was mailed to

each party. On November 3, 1997, Midwest Employers Casualty

Company (“Midwest”) filed a motion for new trial. Williams opposed

the request as untimely, arguing that it was filed more than ten

days after the entry of judgment, in contravention of Federal Rule

of Civil Procedure 59(b)'s plain language. 9 The Magistrate Judge

agreed and denied Midwest’s motion on November 26, 1997. In doing

so, he rejected the contention that Federal Rule of Civil Procedure

6(e) adds three days to the period for seeking new trial when a10 Rule 6(e) states the following:

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 by

mail, 3 days shall be added to the prescribed period.

F ED

. R. C IV

. P. 6(e).

-9- party, like Midwest, receives the judgment in the mail. 10 Rule 6(e),

he correctly observed, applies to periods triggered by service,

while the time to m ove for new trial commences with the entry of

judgment.

Because of its tardiness, Midwest’s motion for new trial

failed to postpone the start of the thirty-day period for filing a

notice of appeal. The Magistrate Judge denied the motion after the

last day of the thirty-day wind ow (November 16, 1997).

Consequently, on December 9, 1997, Mid west asked for additional

time to file a notice of appeal and for expedited consideration of

its request. The next day, the Magistrate Judge granted the motion

and gave Midwest ten days to appeal. This disposition rested on a

finding that Midwest’s failure to file a timely notice of appeal

was due to excusable neglect. The Magistrate Judge cited the

following circumstances in support of his excusable neglect

determination: (1) Midwest’s dereliction arose from the belief of

its attorney that the receipt of the amended judgment in the mail

had the effect of addin g three days to the period for filing a

motion for new trial and; (2) Williams suffered no undue prejudice-10-

from a grant of more time to appeal because an even longer delay

would have occurred if the merits of the motion for new trial had

required consideration. He also suggested that he considered the

mistake to have been in good faith. Specifically, he noted that

Midwest’s counsel had submitted a sworn declaration that explained

the reason for the failure to file a timely appeal and

characterized our opinion in United States v. Clark, 51 F.3d 42

(5th Cir. 1995), as “indicat[ing] that a good faith

misinterpretation of the three-day extension rule by counsel is

exactly the type of thing that constitutes ‘excusable neglect.’”

Midwest filed a notice of appeal before the new deadline.

II

Federal Rule of Appellate Procedure 4(a)(5) per mits the

district court to extend the deadline for filing a notice of appeal

“upon a showing of excusable neglect or good cause.” F E D

. R. A PP

.

R. 4(a)(5). When a party moves for more time after the deadline

for appealing has passed, it must show excusable neglect; good

cause does not suffice. S ee Allied Steel, Gen. Contractor v. City

of Abilene, 909 F.2d 139, 143 n.3 (5th Cir. 1990); see also F ED

. R.

A PP

. P. 4(a)(5) advisory committee’s note (1979). The determination

of whether or not a party’s neglect is excusable “is at bottom an

equitable one, t a king into account all relevant circumstances

surrounding the party’s omission.” P ioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S. Ct.11 Because excusable neglect has the same meaning across

procedural contexts, I look not only to decisions regarding Rule

4(a)(5) but also to ones regarding other rules that include an

excusable neglect requirement. See Prizevoits v. Indiana Bell Tel.

Co., 76 F.3d 132, 134 (7th Cir. 1996); United States v. Clark, 51

F.3d 42, 44 (5th Cir. 1995).

-11- 1489, 1498, 123 L. Ed. 2d 74, __ (1993).

These include

. . . the danger of prejudice to the

[nonmovant]

. . ., the length of the delay and its

potential impact on judicial proceedings, the reason for

delay, including whether it was within the reas onable

control of the movant, and whether the movant acted in

good faith.

Id. A misinterpretation of unambiguous procedural rules usually

goes against finding excusable neglect. S ee id. at 392, 113 S. Ct.

at 1496, 123 L. Ed. 2d at ___. However, in some instances, other

consid erations may outweigh this negative factor and tip the

balance in favor of allowing additional time. 11 S ee id. at 398-99,

113 S. Ct. at 1499-1500, 123 L. Ed. 2d at

___ (applying the

excusable neglect standard).

We review a ruling on a moti on to enlarge the period for

filing a notice of appeal for abuse of discretion. See Clark, 51

F .3d at 43. An abuse of discretion occurs when we “ha[ve] a

definite and firm conviction that the lower court committed a clear

error of judgment in the conclusion it reached upon weighing the

relevant factors.” M arx v. Loral Corp., 87 F.3 d 1049, 1054 (9th

Cir. 1996) (reviewing grant of a motion under Rule 4(a)(5)); accord

United States v. Walker, 772 F.2d 1172, 1176 (5th Cir. 1985)

(def ining abuse of discretion); s ee 16A C HARLES A LAN W RIGHT ET AL

.,12 Rule 59(e) (like Rule 59(b)) requires that a motion to alter

o r amend judgment be “filed no later than 10 days after en try of

the judgment.” F ED

. R. C IV

. P. 59(e).

-12- F EDERAL P RACTICE A ND P ROCEDURE § 3950.3 (2d ed. 1996) (stating that a

grant of more time to appeal “rests largely in the discretion” of

the district court and recommending that appe llate courts “not

second-guess” such a ruling). If we conclude that the district

court abused its discretion in enlarging the period to file a

notice of appeal, then we must dismiss for lack of jurisdiction.

See N elson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983) (“a time l y

notice of appeal is a mandatory precondition to the exercise of our

jurisdiction”).

III

Our opinion in Halicki v. Louisiana Casino Cruises, Inc., 151

F.3d 465 (5th Cir. 1998), which involved facts identical to those

und erlying this appeal, informs the majority. In that case,

Halicki’s attorney filed a motion to alter or ame nd judgment

pursuant to Federal Rule of Civil Procedure 59(e) two days late as

a result of his erroneous belief tha t Rule 6(e) applied to Rule

59(e). 12 S ee id. at 467. When Louisiana Casino Cruises, Inc.

(“Casino Rouge”), objected to the motion as belated, Halicki’s

attorney, realizing his error, sought an extension of the deadline

for appealing. I d. The district court concluded that the mistake

of counsel failed to constitute excusable neglect and rejected the

request. Id. We found no abuse of discretion in this denial and13 Al though unpublished, Evbuomwan binds us. S ee 5th Cir. R.

47.5.3 (“Unpublished opinions issued before January 1, 1996, are

precedent.”); see also C la rk, 51 F.3d at 44 (following one of

Evbuomwan’s holdings).

-13- affirmed. Id. at 470, 471. We observed:

Where, as here, the rule at issue [i.e., Rule 59(e)] is

unambiguous, a district court’s determination that the

neglect was inexcusable is virtually unassailable. Were

it otherwise, “almost every appellant’s lawyer would

plead his own inability to understand the law when he

fails to comply with a deadline.”

Id. at 470. In reaching this conclusion, we were unpersuaded that

a lack of prejudice to Casino Rouge offset the seriousness of

counsel’s mistake and shifted the balance in favor of finding

excusable neglect. See id. at 469-70 n.4.

The majority, invoking Halicki, holds that the Magistrate

Judge abused his discretion in g ranting Midwest further time to

file a notice of appeal. I disagree. The Magistrate Judge’s

ruling, in my view, wa s a proper exercise of discretion. My

conclusion finds support in our precedent.

IV

Two of our cases, United States v. Evbuomwan, No. 93-1738 (5th

Cir. 1994) (unpublished opinion) (reported a t 38 F.3d 89 (table

case)), 13 and La ckey v. Atlantic Richfield Company, 990 F.2d 202,

205 (5th Cir. 1993), establish that the Magistrate Judge did not

err in extending the time to appeal. In Evbuomwan, Evbuomwan’s

attorney filed a notice of appeal two days late because of a

failure to appreciate the apparent inapplicability of Federal Rule14 Rule 26 (c) mirrors Rule 6(e). C ompare F ED

. R. A PP

. P. 26(c)

with F ED

. R. C IV

. P. 6(e).

-14- of Appell ate Procedure 26(c), which lengthens by three days any

prescribed period beginning upon service by mail, 14 to Federal Rule

of Appellate Procedure 4(b), which requires the filing of a notice

of appeal in a criminal case within ten days after the entry of

judgment. S ee Evbuomwan at 2 (citing Welsh v. Elevating Boats,

Inc., 698 F.2d 230, 231-32 (5th Cir. 1983)). The district court

lengthened the period for appealing because “the notice of appeal

was filed two days late as a result of counsel’s good faith

misinterpretation of the rules, rather than from his simply

miscalculating the date on which the notice was due.” I d. We

affirmed, concluding:

There is no indication that the government [i.e., the

nonmovant] was at all prejudiced by the delay or that it

a ffected judicial proceedings. On the facts of this

case, the district court did not abuse its discretion by

accepting a notice of appeal filed in good faith, two

days late.

Id. at 3. Our analysis reflected a determination that the district

court had acted within its discretion in deeming the absence of

prejudice, lack of adverse impact on judicial proceeding s, and

movant’s good faith to trump counsel’s misconstruction of the

rules’ plain language. See id. at 2-3.

Evbuomwan harkens back to Lackey. Lackey’s attorney filed a

notice of appeal using the phrase “et al.” to identify parties, in

violation of Federal Rule of Appellate Procedure 3(c), and failed15 Under the current Federal Rules of Appellate Procedure, the

use of the phrase “et al.” to identify parties is permissible. S ee

F ED

. R. A PP

. P. 3(c) advisory committee’s note (1993).

-15- to specify the parties in the notice’s body. 15 S ee Lackey, 990 F.2d

at 205, 206. He finally realized his mistake and moved for more

time to appeal nine days after the deadline for filing a notice.

See id

. at 205. Despite the egregiousness of the error ) ) the

Supreme Court, looking to the language of Rule 3(c), previously had

held reliance on “et al.” inadequate to identify parties to an

appeal, see Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108

S. Ct. 2405, 2407, 101 L. Ed. 2d 285,

___ (1988), and “ extensive

authority exist[ed] for the proposition that naming ‘plaintiffs’ in

the body of the notice of appeal [was]

. . . insufficient,” Lackey,

990 F.2d at 206 )) the d istrict court found excusable neglect and

reset the deadline for appealing. Id. at 205, 206. We affirmed,

offering the following explanation:

The defendants argue that the district court abused its

discretion because the p laintiffs do not point to any

excusable neglect, other than inadvertence, and the case

law requires something more. The plaintiffs did timely

file a notice of appeal in this case. Although, the

original notice of appeal was insufficient to invoke

appellate jurisdiction, they sought to remedy that defect

via a Rule 4(a)(5) motion. The district judge could have

properly found that the defendants were not prejudiced by

the extension because they were already on notice, within

the prescribed time per iod, that the plaintiffs were

waging an appeal. Furthermore, the Rule 4(a)(5) motion

was made not long after the original defective notice of

appeal was filed. We cannot conclude that the district

judge abused his discretion and, thus, all of the16 Lackey, in contrast t o E vbuomwan, made no mention of the

s eminal explication of excusable neglect ) ) the Supreme Court’s

opinion in Pi oneer Investment Services Company v. Brunswick

Associates Limited Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123

L. Ed. 2d 74 (1993). But its discussion echoes the application of

the excusable neglect standard in Pioneer. S ee id. at 397, 398-99,

113 S. Ct. 1499, 1500, 123 L. Ed. 2d at

___. As we decided L ackey

about a month after Pioneer was announced, the similarity between

t he analyses in L ackey and Pioneer cannot be viewed as

coincidental. Compare id. at 380, 113 S. Ct. at 1489, 123 L. Ed.

2d at 74 (decided Mar. 24, 1993) with Lackey, 990 F.2d at 202

(decided Apr. 26, 1993).

17 The majority says that t he failure of Midwest’s attorney to

file a notice of appeal after Williams, in his respons e to the

motion for new trial, directed attention to Rule 59's language

distinguishes this case from Evbuomwan and Lackey. I disagree.

Williams’ response merely quoted Rules 6(e) and 59(b). It did not

apprise Midwest’s attorney of something that he did not know.

-16- plaintiffs are properly before us. 16

Id. at 206. Like Evbuomwan, we held that th e district court had

committed no abuse of discretion in deciding that, despite the

attorney’s obvious error, other factors )) an absence of prejudice to

the nonmovant and the shortness of the delay caused )) mitigated this

circumstance enough to render the neglect excusable. Id.

Evboumwan and Lackey lead me to conclude that the Magistrate

Judge’s enlargement of the period for filing a notice of appeal in

this case was a proper exercise of discretion. The Magistrate

Judge confronted a failure by counsel to construe correctly

unambiguous proc edural rules ) ) a mistake he apparently viewed as

being made in good faith ) ) that caused neither prejudice to the

nonmovant nor a significant delay in the judicial proceedings. 1 7

He concluded that counsel’s good faith, the absence of meaningful18 Although the Magistrate Judge did not note it, Midwest’s

effort to alleviate the delay by seeking and securing expedited

consideration of its motion for additional time also is a factor in

support of finding excusable neglect.

19 I focus on the parts of Prizevoits and Kyle assessing the

facts under P ioneer ’s excusable neglect standard, not tho s e

applying pre- Pioneer precedents. See 16A W RIGHT ET AL

. , supra §

3950.3 (“It is plain that Rule 4(a)(5) must no w be read in the

light of what Pioneer Investment held about ‘excusable neglect’ and

that earlier decisions taking a different view of the concept are

no longer authoritative.”); see also Prizevoits, 76 F.3d at 135-36

(Eschbach, J., dissenting) (“The majority, however, chooses not to

address the impact of Pio neer on our past decisions. Given the

difference in tone between P ioneer and our past decisions, this

choice is a dubious one.”); Mayberry v. Said, No. 94-2416-JWL, 1996

WL 442046, at *2 (D. Kan. July 3, 1996) (questioning Kyle’s

authoritativeness because of its emphasis on pre- Pioneer holdings);

16A W RIGHT & M ILLER

, supra (arguably considering Prizevoits to be

among the cases that “seem to reflect extremely strict notions of

when an extension is permissible, notions that cannot have survived

-17- prejudice, and the short length of the delay outweighed the

unacceptableness of the reason for the delay and tipped the balance

in favor of finding excusable neglect. 18 In Evbuomwan and Lackey,

we found similar determinations based on nearly the same facts to

be proper exercises of discretion. We, therefore, must hold that

the Magistrate Judge in this case committed no abuse of discretion

in finding excusable neglect and authorizing additional time to

appeal.

V

The opinions to which the majority points, Prizevoits v.

Indiana Bell Telephone Company, 76 F.3d 132 (7th Cir. 1996), and

Kyle v. Campbell Soup Company, 28 F.3d 928 (9th Cir. 1994), fail to

dissuade me. 19 In P rizevoits, Prizevoits’ lawyer sought more time,the Supreme Court’s decision in the Pioneer Investment case”).

20 Rule 6(b) provides that “[t]he district court] may not extend

the time for taking any action under Rule[]

. . . 59(b) , (d) and

(e).” See F ED

. R. C IV

. P. 6(b).

-18- pursuant to Federal Rule of Civil Procedure 6(b), to file a Rule

59(e) motion. See Prizevoits, 76 F.3d at 133. After the thirtyday period for appealing had passed, the district court denied the

motion for a deadline extension as unsupported by Rule 6(b)’s plain

l anguage. 2 0 S ee id. Prizevoits’ lawyer then filed a motion to

enlarg e the time for appealing. S ee id. He asserted that his

recent retention, which resulted in ten days being too little time

to prepare the Rule 59(e) motion, and the delay (nearly a month) in

the district court’s ruling justifie d a deadline extension. S ee

id. The district court granted the motion, finding excusable

neglect. S ee id. The Seventh Circuit disagreed and held the

following:

Here the rule is crystal clear, the error egregious, the

excuses so thin as to leave the lapse not only unexcused

but inexplicable. If there was “excusable” neglect here,

we hav e difficulty imagining a case of inexcusable

neglect. We do not think it can make a difference that

no harm to the appellee has been shown. There is

unlikely ever to be harm in th e Rule 4(a)(5) setting,

because the neglectful appellant has only 30 days after

the expiration of his time for appealing in which to

request relief. The word “excusable” would be read out

of the rule if inexcusable neglect were transmuted into

excusable neglect by a mere absence of harm.

Id. at 134.

Kyle also arose from the failure to understand a rule. Kyle’s21 A provision similar to the local rule was added to the Federal Rules of

Civil Procedure subsequent to the events underlying Kyle. S ee F ED

. R. C IV

. P. 54

advisory committee’s note (1993) (adding subdivision on attorneys’ fees, which

includes the requirement that motions for attorney’s fees be filed no later than

fourteen days after the entry of judgment).

-19- lawyer decided that he had, pursuant to Rule 6(e), three extra days

t o file a motion for attorney’s fees since he had received the

judgment in the mail. S ee Kyle, 28 F.3d at 929. However, Rule

6(e) was inapplicable because the pertinent local rule required the

filing of motions for attorney’s fees within thirty days of the

entry of judgment. 21 S ee id. The lawyer’s mistake resulted in the

motion for attorney’s fees being two days late. See id. Kyle

consequently asked for an enlargement of the filing period. S ee

id. Deeming counsel’s error excusable neglect under Rule 6(b), the

district court granted the motion. S ee id. The Ninth Circuit

determined that this disposition was an abuse of discretion. See

id. at 929-31. In doing so, it stated:

[C]ounsel in this matter committed a mist ake in

interpreting and applying the Local Rules and Rule 6(e)

of the Federal Rules of Civil Procedure, which were not

ambiguous. This form of neglect was not excusable.

Although the Court in Pioneer recognized that “excusable

neglect” is a flexible, equitable concept, the Court also

reminded us that “inadvertence, ignorance of rules, or

mistakes constructing the rules do not usually constitute

‘excusable neglect.’” In this case, counsel has not

presented a persuasive justification for his

misconstruction of nonambiguous rules. Accordingly,

there is no basis for deviating from the gene ral rule

that a mistake of law does not constitute excusable

neglect.

Id. at 9 31-32. The good faith of Kyle’s counsel, the conclusion22 The Ninth Circuit’s appraisal of other factors appeared as a response to

Kyle’s argument that the excusable neglect standard set out in Dominic v. Hess

Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988), supported the district court’s

ruling. S ee Kyle, 28 F.3d at 931. This discussion is informative because

Pioneer endorsed Dominic’s understanding of excusable neglect, see Pioneer, 507

U.S. at 387 n.3, 113 S. Ct. at 1494 n.3, 123 L. Ed. 2d at ___ n.3 (citing the

Third Circuit as among the appellate courts “adopt[ing] a more flexible approach”

to excusable neglect).

23 Kyle’s facts are virtually indistinguishable from those in this case. The

same, however, cannot so readily be said of the facts in P rizevoits. While

Prizevoits’ attorney failed to comprehend an ex plicit exception found in Rule

6(b), Midwest’s attorney made the arguably less egregious error in not inferring

from the unambiguous language of Rule 6(e) and Rule 59(e) the inapplicability of

the former rule to the latter one.

-20- that the mistake did not reflect professional incompetence, and the

lack of prejudice to the nonmovant failed to sway the Ninth Circuit

to affirm. 22 See id. at 931.

The majority presumably considers the likeness of the

circumstances in Prizevoits and Kyle to those in this case to

dictate deeming the Magistrate Judge’s finding of excusable neglect

inappropriate. 23 However, even if the Magistrate Judge’s decision

fails to square with Prizevoits and Kyle, we still cannot reverse.

Evbuomwan and Lackey, which also concerned circumstances similar to

those here )) certainly the facts in them are as similar to those in

this case as are the ones underlying Prizevoits and Kyle )) call for

us to conclude otherwise. We must follow them, our precedents,

rather than the decisions from other circuits that the majority

favors, and hold that the Magistrate Judge committed no error.

VI

The majority seem s to think that “[i]f misconstruction of a

nonambiguous rule cannot, under [F ifth] . . . Circuit precedent-21-

[i.e., Halicki ], constitute excusable neglect to jus tify an

extension of time, it clearly would [be an] . . . abuse of

discretion for the district court in this case to h old that [a

misconstruction of a nonambiguous rule]

. . . could constitute

e xcusable neglect.” C ommittee for Idaho’s High Desert, Inc. v.

Yost, 92 F.3d 814, 825 (9th Cir. 1996). This logic runs counter to

the “equitable and discretionary nature of the trial judge’s

‘excusable neglect’ determination.” R obb v. Norfolk & W. Ry., 122

F.3d 354, 362 (7th Cir. 1997).

The majority’s rationale suggests that an attorney’s

misinterpretation of a n unambiguous rule never can be excusable

neglect, regardless of the circ umstances. Such a perspective,

however, is untenable, for it contravenes the contextual nature of

the excusable neglect determination. S ee Pioneer, 507 U.S. at 395,

113 S. Ct. at 1498, 123 L. Ed. 2d at ___; see also United States v.

Brown, 133 F.3d 993, 997 (7th Cir. 1998) (“But Pioneer made clear

that the standard is a balancing test, meaning that a delay might

be excused even where the reasons for the delay are not

particularly compelling.”), cert. denied,

___ U.S.

___, 118 S. Ct.

1824, 140 L. Ed. 2d 960 (1998). But cf. Advanced Estimating Sys.

v. Riney, 130 F.3d 996, 998 (11th Cir. 1997) (holding, “as a matter

of law, that an attorney’s misunderstanding of the plain language

of a rule cannot constitute excusable neglect such that a party is

relieved of the consequences of failing to comply with a statutory-22-

deadline” and providing no discussion of circumstances other than

the attorney’s error); Yost, 92 F.3d at 825 (finding that counsel’s

ignorance, “under this court’s interpretation of Pioneer in Kyle,

[removed the] . . . need for the court to consider expressly the

equitable factors listed in Pioneer” ).

The majority’s concern with parity of reasoning, moreover,

gives short shrift to the discretion of lower courts. When

reviewing rulings on motions for more time to appeal for abuse of

discretion, we envision a range of acceptable outcomes, rather than

a single correct disposition. S ee Brown, 133 F.3d at 996 (“We can

disagree with the dist rict court’s decision, but we can reverse

only if we find that granting the extension was an abuse of his

discretion.”); 1 S TEVEN A LAN C HILDRESS & M ARTHA S. D AVIS

, F EDERAL S TANDARDS

OF R EVIEW § 4.21 (2d ed. 1992 & Supp. 1997) (“many courts des cribe

the point of abuse of discretion review as one permitting the judge

to choose from several satisfactory options”); cf. Koon v. United

States, 518 U.S. 81, 99, 116 S. Ct. 2035, 2047, 135 L. Ed. 2d 392,

___ (1996) (observing that abuse of discretion is the appropriate

standa rd for reviewing highly contextual matters). H alicki,

Evb uomwan and Lackey, taken together, exemplify what we

contemplate. Given what they have held, a lower court may conclude

that circumstances like those in this case either constitute

excusable n eglect or do not; both decisions are acceptable ) ) that

is, neither one leaves a firm conviction that a clear error in24 We have long appreciated how abuse of discretion necessitates that we give

appropriate deference to lower court findings of excusable neglect. Years ago,

in Wansor v. George Hantscho Co., 570 F.2d 1202 (5th Cir. 1978), we commented:

We do not hold that a bona fide misunderstanding or mistake as to

the law by counsel will constitute excusable neglect. We recognize

that such a proposition would make the requirement of timely filing

al most undeterminable. All we decide here is that, viewing the

facts and circumstances as whole, the District Judge did not abuse

his discretion in granting an extended time for appeal.

Id. at 1205-06.

-23- judgment was committed. C f. Brown, 133 F.3d at 997 (affirming

grant of additional time to appeal but noting that, “[i]n a close

case like this one, we might affirm a district court that refused

to exercise lenity”). Therefore, affirming in this case creates no

inconsi stency in our jurisprudence on excusable neglect and

extensions of time to appeal. 24

V

The majority fails to recognize and apply precedents that

require us to uphold the Magistrate Judge’s finding of excusable

neglect and enlargement of the period for filing a notice of

appeal. Its oversight most likely will throw into disarray the law

on when negle ct is excusable so as to justify extension of the

deadline for appealing. Ironically, this consequence will defeat

the apparent goal of the majority’s disposition )) conformity in our

decisions.

Accordingly, I dissent.