PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA PANHORST; JOANNE JONES; JOHN 

M. JONES,

Plaintiffs-Appellants,  No. 99-2300

v.

UNITED STATES OF AMERICA,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CA-96-1730-JFM)

Argued: November 2, 2000

Decided: February 20, 2001

Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.

Dismissed by published opinion. Judge Luttig wrote the opinion, in

which Judge Niemeyer and Judge Traxler joined. 

COUNSEL

ARGUED: Marc Simon Moller, KREINDLER & KREINDLER,

New York, New York, for Appellants. Mary McElroy Leach, Senior

Trial Counsel, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee. ON BRIEF: Henry Gluckstern, Special Counsel, KREINDLER & KREINDLER, New York, New York;

Stanley P. Kops, Philadelphia, Pennsylvania, for Appellants. David
W. Ogden, Acting Assistant Attorney General, Lynne A. Battaglia,

United States Attorney, Jeffrey Axelrad, Director, Torts Branch, Civil

Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 

OPINION

LUTTIG, Circuit Judge: 

The appellants, Lisa Jones Panhorst and her parents, appeal the district court’s grant of summary judgment to the United States in an

action brought under the Federal Tort Claims Act. We hold that

appellants’ notice of appeal was untimely and that the limited "unique

circumstances" exception to the jurisdictional requirement of a timely

notice of appeal does not apply. Accordingly, we dismiss this appeal

for lack of jurisdiction. 

I.

Lisa Jones Panhorst is paralyzed in both legs. Panhorst and her parents sued American Cyanamid Company ("Cyanamid") in the District

of South Carolina, claiming that Panhorst contracted polio through

contact with an unknown child who had recently been administered

a defective dose of Orimune, a polio vaccine manufactured by American Cyanamid. While that action was pending, appellants filed the

present action against the United States under the Federal Tort Claims

Act in the District of Maryland. Appellants claim that the United

States negligently licensed and released a defective vaccine that was

thereafter administered to a child from whom Panhorst contracted

polio. 

In Cyanamid, the district court granted summary judgment to the

defendant on the issue of causation, holding that Panhorst failed to

present sufficient evidence that she contracted Type III polio from

American Cyanamid’s vaccine.1 App. 259. Subsequently, the district

1This court affirmed the district court’s judgment in Jones v. American

Cyanamid Co., 139 F.3d 890 (4th Cir. 1998) (unpublished). 

2 PANHORST v. UNITED STATES
court in the present lawsuit granted summary judgment to the United

States based on the collateral estoppel effect of Cyanamid. App. 172-

79. 

The district court entered the order granting summary judgment to

the United States on March 3, 1998. On March 20, 1998, appellants

filed a motion for rehearing and reconsideration under Fed. R. Civ.

P. 59, citing newly discovered evidence of alleged improprieties in

the licensing of Orimune.2 Because appellants knew that the period

permitted by the Federal Rules of Civil Procedure for filing a Rule 59

motion had elapsed, they also filed a motion to consider the Rule 59

motion out of time, along with an order for the court’s signature that

granted appellants permission to file an untimely Rule 59 motion. 

The district court signed the order submitted by appellants and held

a hearing on the Rule 59 motion, which it subsequently denied on

July 30, 1999. On September 21, 1999 — within sixty days of the

denial of the untimely Rule 59 motion, but more than sixty days after

entry of the original summary judgment order — appellants noted this

appeal. 

II.

The United States argues that we have no jurisdiction over this

appeal because the notice of appeal was filed out of time. We agree.

Because appellants’ Rule 59 motion was untimely, it did not defer the

sixty-day period for filing a notice of appeal, which continued to run

from the entry of the summary judgment order. Accordingly, appellants’ notice of appeal — filed more than sixty days after the summary judgment order — was untimely as well. We would thus have

jurisdiction over this appeal only if the "unique circumstances" doctrine cured the jurisdictional defect caused by appellants’ tardy notice

of appeal. We conclude that the unique circumstances doctrine does

not apply to the facts of this case, and we therefore dismiss for lack

of jurisdiction. 

2Although appellants did not specify the section of Rule 59 on which

they relied, the district court considered the motion under Rule 59(e)

("Motion to Alter or Amend Judgment"). J.A. 242. 

PANHORST v. UNITED STATES 3
A.

The Supreme Court has repeatedly emphasized that the requirement of a timely notice of appeal is "mandatory and jurisdictional."

Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264 (1978).

See also Alston v. MCI Communications Corp., 84 F.3d 705, 706 (4th

Cir. 1996). Under the Federal Rules of Appellate Procedure, a party

to a lawsuit involving the United States must file a notice of appeal

within sixty days after entry of the judgment or order appealed from.

Fed. R. App. P. 4(a)(1)(B). However, if a party files a timely motion

in the district court to alter or amend the judgment under Rule 59(e),

the time to file a notice of appeal runs from the entry of the order disposing of the Rule 59(e) motion. Fed. R. App. P. 4(a)(4). An untimely

Rule 59(e) motion does not defer the time for filing an appeal, which

continues to run from the entry of the initial judgment or order.

Browder, 434 U.S. at 264. 

The timeliness of appellants’ notice of appeal thus depends entirely

upon whether their Rule 59 motion was timely. A motion to alter or

amend the judgment under Rule 59(e) is timely only if filed within

ten days after entry of the judgment, not including Saturdays, Sundays, or legal holidays. Fed. R. Civ. P. 59(e) (A motion under Rule

59(e) "shall be filed no later than 10 days after entry of the judgment.") (emphasis added); Fed. R. Civ. P. 6(a) (computation of time

where a prescribed period is less than eleven days). The district court

"may not extend the time for taking any action under Rules . . . 59(b),

(d) and (e), except to the extent and under the conditions stated in

them." Fed. R. Civ. P. 6(b). Rule 59(e), in turn, simply does not provide any mechanism for extending the prescribed ten-day filing deadline. Thus, the Federal Rules clearly prescribe that a motion under

Rule 59(e) must be filed within ten days after entry of the judgment,

and the Rules just as clearly provide the district court with no authority to extend the filing period. 

Here, the district court entered the summary judgment order in

favor of the United States on March 3, 1998. Appellants had until

March 17, 1998 — ten days after the entry of the summary judgment

order, excluding Saturdays, Sundays, and legal holidays — to file

their Rule 59 motion. Instead, they filed their Rule 59 motion on

March 20, 1998. Because an untimely Rule 59 motion cannot defer

4 PANHORST v. UNITED STATES
the time for filing a notice of appeal, appellants were required to note

their appeal by May 4, 1998, sixty days from the entry of summary

judgment. The notice of appeal filed on September 21, 1999 — over

180 days from the entry of judgment — was therefore tardy. Unless

there is an applicable exception to the rule that a timely notice of

appeal is mandatory and jurisdictional, we lack jurisdiction over this

appeal. 

B.

Appellants seek refuge from the mandatory filing requirements of

the Rules by invoking the limited "unique circumstances" doctrine

recognized by the Supreme Court in a trio of cases in the early 1960s.

See Wolfsohn v. Hankin, 376 U.S. 203 (1964); Thompson v. INS, 375

U.S. 384 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers,

Inc., 371 U.S. 215 (1962). In Harris, the district court granted a

motion to extend the time for filing a notice of appeal, as then provided by Rule 73(a), for "excusable neglect or good cause." The Seventh Circuit dismissed the appeal because, in its view, the

circumstances on which the district court relied did not satisfy Rule

73(a), rendering the appeal untimely. The Supreme Court reversed,

holding that: 

In view of the obvious great hardship to a party who relies

upon the trial judge’s finding of "excusable neglect" prior to

the expiration of the 30-day period and then suffers reversal

of that finding, it should be given great deference by the

reviewing court. 

Harris, 371 U.S. at 217. 

In Thompson, the Court again applied the Harris doctrine, over the

vigorous dissent of four Justices. The petitioner in Thompson filed a

motion for a new trial twelve days after final judgment. The district

court assured him that the motion was actually filed "‘in ample time’"

and went on to decide it on its merits. Thompson, 375 U.S. at 387.

Based on this assurance, the petitioner filed a notice of appeal after

the post-trial motion was ruled upon, which was more than sixty days

after the original entry of judgment. The court of appeals dismissed

the appeal for lack of jurisdiction, holding that the motion for a new

PANHORST v. UNITED STATES 5
trial filed in the district court was untimely and hence did not defer

the time for filing a notice of appeal. The Supreme Court vacated the

judgment and held that the court of appeals had jurisdiction in light

of the "unique circumstances" of the case, which fit within the Harris

exception. Id. 

Finally, in Wolfsohn, the Supreme Court summarily reversed, in a

one-sentence memorandum opinion, the dismissal of another untimely

appeal where the district court had extended the ten-day period for filing a motion under Rule 59(b). Wolfsohn, 376 U.S. at 203. The Court

did not state its reasoning or the facts of the case, citing only the

lower court opinion, Harris, and Thompson.

3

 Again, four Justices dissented, arguing that Thompson and Wolfsohn represented an unwarranted extension of Harris, which "should be confined to its peculiar

facts, i.e., a finding of ‘excusable neglect’ under Rule 73(a)."

Wolfsohn, 376 U.S. at 203. 

The Supreme Court has not applied the unique circumstances doctrine since Wolfsohn, and subsequent caselaw effectively calls the

validity of the doctrine into doubt. Since 1964, when Wolfsohn was

decided, the Supreme Court has repeatedly emphasized that the time

limits imposed by the Federal Rules are "mandatory and jurisdictional." See, e.g., Griggs v. Provident Consumer Discount Co., 459

U.S. 56, 58 (1982); Browder, 434 U.S. at 257. In particular, we find

great significance in Browder, where the Court did not apply the

unique circumstances doctrine despite facts that were virtually on all

fours with Thompson and Wolfsohn. As in Thompson and Wolfsohn,

the petitioner in Browder delayed filing a notice of appeal in reliance

on the district court’s consideration of an untimely Rule 59 motion.

Nonetheless, the Supreme Court in Browder held that the court of

appeals lacked jurisdiction over an untimely appeal because the petitioner’s motion in the district court for a stay and an evidentiary hearing (essentially a motion for rehearing or reconsideration) was

untimely under Rule 52(b) or 59, and hence could not toll the running

of the "mandatory and jurisdictional" thirty-day time limit for filing

an appeal. Browder, 434 U.S. at 264, 271-72. Thus, on facts that

3A summary disposition does not enjoy the same precedential value as

a full opinion of the Court on the merits. Edelman v. Jordan, 415 U.S.

651, 671 (1974). 

6 PANHORST v. UNITED STATES
would appear to fall within the unique circumstances exception,

Browder’s unequivocal holding that the timely filing of a notice of

appeal is "mandatory and jurisdictional" casts considerable doubt on

the continued viability of the unique circumstances doctrine. 

Indeed, our sister circuits have also questioned the vitality of the

unique circumstances doctrine in the wake of Browder and other

cases that stress the mandatory and jurisdictional nature of filing

requirements. See, e.g., Pinion v. Dow Chemical, U.S.A., 928 F.2d

1522, 1529 (11th Cir. 1991), cert. denied, 502 U.S. 968 (1991); Kraus

v. Consolidated Rail Corp., 899 F.2d 1360, 1362-63 (3d Cir. 1990);

Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 913 n.6

(7th Cir. 1989). Furthermore, four Supreme Court Justices have

apparently rejected the unique circumstances exception outright: 

Petitioner asserts that [Harris, Thompson, and Wolfsohn]

establish an equitable doctrine that sometimes permits the

late filing of notices of appeal. Our later cases, however,

effectively repudiate the Harris Truck Lines approach,

affirming that the timely filing of a notice of appeal is "mandatory and jurisdictional."

Houston v. Lack, 487 U.S. 266, 282 (1988) (Scalia, J., dissenting,

joined by Rehnquist, C.J., O’Connor, J., and Kennedy, J.). We seriously doubt whether the Court would apply the doctrine if given the

chance today. Nevertheless, "only the [Supreme] Court may overrule

one of its precedents," Thurston Motor Lines, Inc., v. Jordan K. Rand,

Ltd., 460 U.S. 533, 535 (1983), and we must assume that the unique

circumstances doctrine remains good law unless it is overruled by the

Court. Cognizant, however, of the waning support for the doctrine, we

read its requirements strictly, as our sister circuits have done. Consistent with our view that the unique circumstances doctrine has fallen

into disuse, we have never before applied the doctrine to assert jurisdiction over an untimely appeal,4

 and we conclude today that it does

not apply in this case. 

4We have cited the unique circumstances doctrine in only three cases.

In Myers v. Stephenson, 748 F.2d 202 (4th Cir. 1984), we reserved decision on whether the unique circumstances doctrine would apply, pending

PANHORST v. UNITED STATES 7
C.

In Osterneck v. Ernst & Whitney, 489 U.S. 169 (1989), the

Supreme Court stated the unique circumstances doctrine as follows:5

[The unique circumstances doctrine] applies only where a

party has performed an act which, if properly done, would

postpone the deadline for filing his appeal and has received

specific assurance by a judicial officer that this act has been

properly done. 

Osterneck, 489 U.S. at 179. The doctrine, by its terms, does not apply

here. First, the act that appellants performed in the district court —

filing an untimely Rule 59 motion accompanied by a motion to file

out of time — can never be "properly done." An untimely Rule 59

motion is never proper because the Rules expressly forbid an extension of time for such a motion. Thus, this case is unlike Harris, where

the district court had authority under the Rules to extend the time for

filing a notice of appeal and assured the moving party that the requirements for an extension had been properly satisfied. In strictly construing the unique circumstances doctrine, we decline to apply it to the

present case, where the Rules bar an extension of time. 

Second, the act of filing an untimely Rule 59 motion is not one that

can "postpone the deadline for filing [an] appeal." Osterneck, 489

U.S. at 179. As the Federal Rules and Browder make clear, only a

timely motion under Rule 59 (among other specified rules) defers the

time for filing a notice of appeal. Fed. R. App. P. 4(a)(1); Browder,

464 U.S. at 264. 

a determination of whether the appellants’ notice of appeal was untimely

and an evidentiary hearing on the circumstances surrounding the filing

of the notice of appeal. In Alston v. MCI Communications Corp., 84 F.3d

705 (4th Cir. 1996), and Jones v. AT&T Technologies, Inc., 943 F.2d 49

(4th Cir. 1991) (unpublished), we considered the unique circumstances

doctrine and declined to apply it. 

5

In Osterneck, the Supreme Court refused to apply Thompson where

a party had mistakenly viewed its initial notice of appeal as effective

despite the pendency of a motion that made that notice a nullity. Osterneck, 489 U.S. at 178. 

8 PANHORST v. UNITED STATES
Third, not only can an untimely Rule 59 motion never be "properly

done," but the district court in this case did not provide "specific

assurance" that "this act [was] properly done." Osterneck, 489 U.S. at

179. At most, the "assurance" given by the court was that it would

excuse the improper filing of an untimely Rule 59 motion and consider the motion on its merits out of time. See Green v. Bisby, 869

F.2d 1070, 1072 (7th Cir. 1989) (entry of an order granting a litigant’s

request for an extension of time to file a Rule 59(e) motion "is not an

act of affirmative representation by a judicial officer as contemplated

by Osterneck."). Unlike the Court in Thompson, the district court in

this case never assured appellants that the Rule 59 motion was actually proper and filed "‘in ample time.’" Thompson, 375 U.S. at 387.

Indeed, the submission of an order for the court’s signature granting

appellants permission to file a Rule 59 motion out of time shows that

appellants themselves recognized that the motion was not properly

done because it was untimely. 

Moreover, even if the district court’s order could be characterized

as an assurance within the meaning of Osterneck, appellants did not

reasonably rely on that assurance, as numerous courts of appeal have

interpreted the unique circumstances doctrine to require. See, e.g.,

Pinion, 928 F.2d at 1532 (requiring that reliance be reasonable

because of the equitable nature of the unique circumstances doctrine).

See also, e.g., In re: Home & Family, Inc., 85 F.3d 478, 480 (10th

Cir. 1996); Feinstein v. Moses, 951 F.2d 16, 20 (1st Cir. 1991);

Kraus, 899 F.2d at 1365. We agree with the Second, Third, Tenth,

and Eleventh Circuits that a party cannot reasonably rely on a district

court’s improper extension of time where the party requests relief

that, as a plain reading of the Rules would show, is beyond the court’s

authority. See Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397 (2d

Cir. 2000); Home & Family, Inc., 85 F.3d at 480; Pinion, 928 F.2d

at 1532-34; Kraus, 899 F.2d at 1365. Appellants’ counsel could have

avoided the filing error in this case by reading Rules 59(e) and 6(b),

which clearly state that a Rule 59(e) motion must be filed within ten

days of the entry of judgment. Because a litigant "has a duty to familiarize himself with the [Federal] Rules," which clearly prohibit an

extension of time in which to file a Rule 59 motion, we cannot say

that appellants’ reliance on the district court’s acceptance of the submitted order was reasonable. See Certain Underwriters at Lloyds of

London v. Evans, 896 F.2d 1255, 1258 (10th Cir. 1990) (holding that

PANHORST v. UNITED STATES 9
appellants "either knew or should have known" that an extension of

time to file a notice of appeal exceeded the authority of the district

court, and that reliance on the district court’s extension was therefore

unreasonable). 

We therefore hold that the limited unique circumstances doctrine

does not apply to the facts of this case. The filing of an untimely Rule

59(e) motion is not an act that can be "properly done" or that can

"postpone the deadline for filing [an] appeal," nor did appellants

receive or reasonably rely on "specific assurance by a judicial officer

that this act [was] properly done." Osterneck, 489 U.S. at 179. Consequently, we have no jurisdiction over this untimely appeal. As the

Supreme Court has stated: 

Filing deadlines, like statutes of limitations, necessarily

operate harshly and arbitrarily with respect to individuals

who fall just on the other side of them, but if the concept of

a filing deadline is to have any content, the deadline must

be enforced.

United States v. Locke, 471 U.S. 84, 101 (1985). To assert jurisdiction

over this appeal would be to nullify the plain, mandatory filing

requirements of the Federal Rules.

CONCLUSION

For the foregoing reasons, we dismiss this appeal for lack of jurisdiction. 

DISMISSED

10 PANHORST v. UNITED STATES