United States Court of Appeals

For the First Circuit

Nos. 00-2127

00-2521 

GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 12-N AND

GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 239-M,

Plaintiffs, Appellants,

v.

QUEBECOR PRINTING PROVIDENCE, INC. AND QUEBECOR PRINTING (USA)

CORP.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

 Selya, Circuit Judge,

Gibson,* Senior Circuit Judge,

and Lipez, Circuit Judge.

Peter J. Leff, with whom O'Donnell, Schwartz & Anderson,

P.C. were on brief, for appellants.

Russell F. Morris, Jr., with whom Michael S. Moschel and

Bass, Berry & Sims PLC were on brief, for appellees.

October 25, 2001
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* Hon. John R. Gibson, of the Eighth Circuit, sitting by 

 designation.

LIPEZ, Circuit Judge. On December 16, 1998, Quebecor

Printing Providence, Inc. and Quebecor Printing (USA) Corp.

(collectively, "Quebecor") announced the permanent closure of their

gravure printing plant in Providence, Rhode Island, effective that same

day. Graphic Communications International Union, Local 12-N and

Graphic Communications International Union, Local 239-M ("the Unions")

filed a lawsuit in the United States District Court for the District of

Rhode Island, claiming that Quebecor had violated the Worker

Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. §

2102(a), which requires that employers provide 60 days notice of a

plant closing. On July 21, 2000, the district court entered judgment

pursuant to a memorandum and order granting Quebecor's motion for

summary judgment and denying the Unions' cross-motion for summary

judgment. The Unions filed a notice of appeal with the district court

on August 22, 2000, one day after the 30-day period for filing the

notice of appeal had expired. The Unions then moved for an extension

of time to file the notice of appeal due to excusable neglect, and the

district court denied their motion. The Unions appeal both the denial

of that motion and the district court's disposition of the crossmotions for summary judgment. Because the district court acted within

its discretion in rejecting the Unions' motion for an extension of time
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to file the notice of appeal, we affirm that decision, and do not reach

the merits of the Unions' WARN Act claim. 

I.

The district court decided the summary judgment motions in

favor of Quebecor on the merits of the Unions' WARN Act claims in a

memorandum and order issued on July 20, 2000, and the clerk entered

judgment the next day. Pursuant to Fed. R. App. P. 4(a)(1)(A), the

Unions had until August 21, 2000 to file the notice of appeal. 

On Thursday, August 17, Peter J. Leff, the Unions' Washington

counsel, sent a notice of appeal and a check for the cost via Express

Mail to Marc Gursky, the Unions' Providence counsel. Leff telephoned

Gursky, either on August 17 or the day before, to alert him to expect

the package. Although it was guaranteed to arrive at its destination

the morning of Friday, August 18, the Postal Service did not attempt to

deliver the package to Gursky's firm until 7:00 a.m. on Saturday,

August 19, when no one was there to sign for it. A second delivery

attempt was made at 2:14 p.m. on Monday, August 21, and was successful.

The apparent reason for the Postal Services' failure to

deliver the package on Friday, August 18 was an incorrect address on

the package. In March of 2000, Gursky's firm had relocated within

Providence. In preparing the Express Mail package, however, Leff's
1 It is unclear whether Gursky returned to the office on the

afternoon of August 21. He offered the following account to the

district court:

THE COURT: What happened on Monday the 21st? Apparently, this

package arrived, and you weren't there?

MR. GURSKY: That's right.

THE COURT: Which is understandable.

MR. GURSKY: I don't know what happened on Monday the 21st because

I wasn't there. I only know what happened on Tuesday which would

have been -

THE COURT: Did you go back to the office on the 21st?

MR. GURSKY: Judge, I don't know. I'm sure I must have been back

at the office at some point on the 21st.

Leff indicated to the district court that he "believe[d]" Gursky's

secretary had said in the declaration that he had returned to the

office that afternoon, but the declaration contains no such statement.

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office copied the old address off a letter Gursky's firm had written

before the move. 

When the package did arrive at 2:14 p.m. on Monday, August

21, there was still time (until the end of the day) to file the notice

of appeal. A secretary at Gursky's firm, Cheryl Dichiara, received

the package, and placed it on her desk with the intention of giving it

to Gursky when he returned to the office. Dichiara, who was preparing

an arbitration brief for another client that was due the next day, lost

track of the package under other documents on her desk, and did not

give it to Gursky until August 22.1 The Unions filed the notice of

appeal that same day, and informed Quebecor of the error and of their

intention to file a motion for extension of time to file the notice of

appeal on the ground of excusable neglect, pursuant to Fed. R. App. P.

4(a)(5) (the motion was filed on August 24). At a hearing before the
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district court the next month, Gursky indicated that, as of August 21,

the deadline for filing the notice of appeal, he believed the period

for filing the notice of appeal was 60 days, rather than 30.

II.

Under the Federal Rules of Appellate Procedure, with

exceptions not relevant here, the notice of appeal "must be filed with

the district clerk within 30 days after the judgment or order appealed

from is entered." Fed. R. App. P. 4(a)(1)(A). "The district court may

extend the time to file a notice of appeal if: (i) a party so moves no

later than 30 days after the time prescribed by this Rule . . .

expires; and (ii) that party shows excusable neglect or good cause."

Fed. R. App. P. 4(a)(5)(A). The Unions argue that while the late

filing was not due to forces beyond their control, any neglect on their

part was excusable, and that the district court should therefore have

granted an extension.

Our review of the district court's interpretation of Fed. R.

App. P. 4(a)(5) is de novo, "but otherwise [we] defer to its denial of

the requested extension in the absence of an abuse of discretion."

Pontarelli v. Stone, 930 F.2d 104, 109 (1st Cir. 1991) (citations

omitted). 

 Before the Supreme Court's decision in Pioneer Investment

Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380

(1993), the rule in this circuit was that "[n]eglect is excusable
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within the meaning of FRAP 4(a)(5) only in unique or extraordinary

circumstances." Pontarelli, 930 F.2d at 111 (finding no excusable

neglect where notice of appeal failed to specify each party taking

appeal, as required under Fed. R. App. P. (3)(c) (internal quotation

marks omitted)); see also Rivera v. Puerto Rico Tel. Co., 921 F.2d 393,

396 (1st Cir. 1990) (attorney's failure to list all plaintiffs on

notice of appeal "does not constitute excusable neglect for purposes of

Rule 4(a)(5) except in unusual or extraordinary circumstances");

Airline Pilots in the Service of Executive Airlines, Inc. v. Executive

Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir. 1978) ("A mistake made by

an attorney or his staff [secretary wrote down incorrect deadline for

notice of appeal] is not, except in unusual or extraordinary

circumstances . . . excusable neglect. . . ."); Spound v. Mohasco

Indus., Inc., 534 F.2d 404, 411 (1st Cir. 1976) ("Excusable neglect

calls for circumstances that are unique or extraordinary." (internal

quotation marks omitted)). We did find excusable neglect in In Re San

Juan Dupont Plaza Hotel Fire Litigation, 888 F.2d 940, 941-42 (1st Cir.

1989), but there the circumstances were extraordinary: the failure to

name each plaintiff on a notice of appeal stating that "all plaintiffs,

through the Plaintiffs' Steering Committee he[re]by appeal," was deemed

excusable on the grounds of "the extraordinary size [over 2,000] of the

plaintiff group," the representative status of the Plaintiffs' Steering
2 In Pioneer, the bankruptcy court had refused to permit

creditors' late filing of their proofs of claim against a debtor in a

Chapter 11 proceeding. The Sixth Circuit reversed and the Supreme

Court affirmed, emphasizing, in addition to the creditors' good faith

and the absence of prejudice either to the debtor or to the judicial

system, the bankruptcy court's unorthodox method of notifying the

creditors of the deadline (the "bar date"). Ordinarily the bar date

"should be prominently announced and accompanied by an explanation of

its significance," but here the "peculiar and inconspicuous placement

of the bar date in a notice regarding a creditors['] meeting, without

any indication of the significance of the bar date, left a dramatic

ambiguity in the notification," which made the creditors' neglect

excusable. Pioneer, 507 U.S. at 398 (alternation in original)

(internal quotation marks omitted). Counsel for the creditors, "an

experienced bankruptcy attorney," was unaware of the bar date until

after it had passed. Id. at 384. The Sixth Circuit had concluded that

the "'dramatic ambiguity'" in the notice of the bar date could have

confused "'[e]ven persons experienced in bankruptcy.'" Id. at 387

(quoting In re Pioneer Inv. Servs. Co., 943 F.2d 673, 678 (6th Cir.

1991) (alteration in original)).

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Committee, and the reasonableness of the plaintiffs' filing (which, we

suggested, may in fact have complied with Rule (3)(c)). Id. at 942.

In Pioneer the Supreme Court endorsed a more generous reading of

the phrase "excusable neglect." T he Court interpreted the "excusable

neglect" provision in Rule 9006(b)(1) of the Federal Rules of

Bankruptcy Procedure, which "empowers a bankruptcy court to permit a

late filing if the movant's failure to comply with an earlier deadline

'was the result of excusable neglect.'"2 507 U.S. at 382. Rejecting

what it termed a "narrow view of 'excusable neglect,'" under which the

failure to meet a deadline had to be "caused by circumstances beyond

the movant's control," the Court advanced "a more flexible analysis."

Id. at 387 n.3. The Court observed that the ordinary meaning of the
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word "neglect" encompasses not just unavoidable omissions, but also

negligent ones, and concluded that "Congress plainly contemplated that

the courts would be permitted, where appropriate, to accept late

filings caused by inadvertence, mistake, or carelessness, as well as by

intervening circumstances beyond the party's control." Id. at 388. 

The Court then identified factors to be weighed in evaluating a

claim of excusable neglect:

we conclude that the determination is at bottom an equitable

one, taking account of all relevant circumstances

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

danger of prejudice to the [non-moving party], 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. Although the excusable neglect provision interpreted in

Pioneer was located in the Bankruptcy Rules, the Court cited a

disagreement among the circuits on the meaning of "excusable neglect"

in Fed. R. App. P. 4(a)(5) as a reason for granting certiorari. See

id. at 387 & n.3. In Virella-Nieves v. Briggs & Stratton Corp., 53

F.3d 451 (1st Cir. 1995), we concluded that " Pioneer's exposition of

excusable neglect, though made in the context of late bankruptcy

filings, applies equally to Fed. R. App. P. 4(a)(5)." Id. at 454 n.3;

see also Pratt v. Philbrook, 109 F.3d 18, 19 (1st Cir. 1997) ("Pioneer

must be understood to provide guidance outside the bankruptcy

context.").
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We have recognized that Pioneer marked a shift in the

understanding of excusable neglect. In Pratt, we vacated the district

court's denial of the plaintiff's motion to reopen a case under Fed R.

Civ. P. 60(b)(1), and remanded for reconsideration under the

"latitudinarian standards" for excusable neglect announced in Pioneer.

109 F.3d at 19. We noted that the Supreme Court had "adopted a

forgiving attitude toward instances of 'excusable neglect,' a term

Pioneer suggests will be given a broad reading." Id. at 22. In

Hospital Del Maestro v. National Labor Relations Board, 263 F.3d 173,

174 (1st Cir. 2001) (per curiam), we observed that excusable neglect

after Pioneer is "a somewhat elastic concept" (internal quotation marks

omitted). Other circuits have come to the same conclusion. See Robb

v. Norfolk & W. Ry. Co., 122 F.3d 354, 359 (7th Cir. 1997) ("Pioneer

broadened the definition of 'excusable neglect.'"); United States v.

Thompson, 82 F.3d 700, 702 (6th Cir. 1996) (Pioneer establishes "a more

liberal definition of what constitutes excusable neglect when an

individual seeks a motion for an extension of time in the district

court under Fed. R. App. P. 4"); Fink v. Union Cent. Life Ins. Co., 65

F.3d 722, 724 (8th Cir. 1995) ( Pioneer "established a more flexible

analysis of the excusable neglect standard"); United States v. Hooper,

9 F.3d 257, 258 (2nd Cir. 1993) ( Pioneer advances "a more lenient

interpretation" of excusable neglect). 
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Although the Pioneer standard is more forgiving than the standard

in our prior case law, there still must be a satisfactory explanation

for the late filing. We have observed that "'[t]he four Pioneer

factors do not carry equal weight; the excuse given for the late filing

must have the greatest import. While prejudice, length of delay, and

good faith might have more relevance in a closer case, the reason-fordelay factor will always be critical to the inquiry. . . .'" Hosp. Del

Maestro, 263 F.3d at 175 (quoting Lowry v. McDonnell Douglas Corp., 211

F.3d 457, 463 (8th Cir. 2000)). This focus comports with the Pioneer

Court's recognition that "inadvertence, ignorance of the rules, or

mistakes construing the rules do not usually constitute 'excusable'

neglect." 507 U.S. at 392. 

Even in the wake of Pioneer, therefore, when a party's or

counsel's misunderstanding of clear law or misreading of an unambiguous

judicial decree is the reason for the delay in filing the notice of

appeal, we have continued to uphold findings of "no excusable neglect"

where the court cited the absence of unique or extraordinary

circumstances. In Mirpuri v. ACT Manufacturing, Inc., 212 F.3d 624,

631 (1st Cir. 2000), counsel misread a clear statement in the district

court's memorandum decision dismissing plaintiff's complaint "with

finality," id. at 627, as leaving open the possibility of subsequent

amendment, see id. at 630. We indicated that the memorandum decision

had "explained in the most transparent of terms the court's intention
3 In Gochis v. Allstate Insurance Co., 16 F.3d 12, 14 (1st Cir.

1994) (per curiam), the appellants offered as an excuse for an untimely

notice of appeal their (allegedly) "plausible misconstruction" of the

requirement of Fed. R. App. P. 3(c) that a notice of appeal name each

of the parties taking the appeal. The original notice of appeal had

listed "William Gochis, et. al." as appellants, rather than naming each

of the 79 parties taking the appeal. See id. at 13. We concluded that

this misconstruction of the rule was not plausible, but rather "was due

to nothing more than counsel's ignorance of the law." Id. at 15. We

held that the district court had abused its discretion in excusing the

appellants' neglect: "in order to show excusable neglect, appellant

must demonstrate unique or extraordinary circumstances." Id. at 14.

This statement seems to require a showing of unique or extraordinary

circumstances to establish excusable neglect when there has been a

misunderstanding of clear law. That was the pre-Pioneer view, and it

indicates that Gochis, although decided ten months after Pioneer,

should be regarded as part of our pre-Pioneer precedent. Such a

conclusion becomes virtually irresistible when one considers that (a)

insofar as we can tell, neither side cited Pioneer to the Gochis panel;

(b) the opinion in Gochis makes no reference to Pioneer; and (c) the

panel decided Gochis before Virella-Nieves, in which we held for the

first time that Pioneer's exposition of excusable neglect applied

outside the bankruptcy context to Fed. R. App. P. 4(a)(5). 53 F.3d at

454 n.3.

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to act with 'finality in this case,'" and concluded that "[a]

misunderstanding that occurs because a party (or his counsel) elects to

read the clear, unambiguous terms of a judicial decree through rosecolored glasses cannot constitute excusable neglect." Id. at 631. We

held that "[b]ecause the plaintiffs' failure to file a timely notice of

appeal was not excused by any extraordinary circumstances, the district

court did not abuse its discretion in denying their motion for an

extension of time."3 Id. 

Most recently, in Hospital Del Maestro, we affirmed the denial of

an excusable neglect claim where appellant had filed exceptions to the
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decision of an administrative law judge with the National Labor

Relations Board one day late. 263 F.3d at 175. Appellant had

misunderstood the Board's rule requiring that mailings be postmarked

before, not on, the due date. Id. at 174. We held that "[w]e have no

basis for finding [appellant's] neglect 'excusable' when there is no

proffered reason that would justify, or even plausibly explain, its

misreading of the rules," the meaning of which we described as "plain"

and "unambiguous." Id. at 175. We concluded: [t]he favorable

juxtaposition of the other Pioneer factors does not, therefore, excuse

[appellant's] oversight." Id.

Viewed together, Mirpuri and Hospital Del Maestro illustrate that

a trial judge has wide discretion in dealing with a litigant whose

predicament results from blatant ignorance of clear or easily

ascertainable rules, and, if the trial judge decides that such neglect

is not excusable in the particular case, we will not meddle unless we

are persuaded that some exceptional justification exists. See Mirpuri,

212 F.3d at 631; Hospital Del Maestro, 263 F.3d at 175.

 Other circuits have been even harder on excusable neglect claims

involving ignorance of the rules. In Advanced Estimating System, Inc.

v. Riney, 130 F.3d 996, 997 (11th Cir. 1997), the Eleventh Circuit held

that "as a matter of law, the lawyer's failure to understand clear law

cannot constitute excusable neglect." The court explained that

"[n]othing in Pioneer indicates otherwise, and we believe that the law
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in this area remains as it was before Pioneer." Id. at 998; see also

Midwest Employers Cas. Co. v. Williams, 161 F.3d 877, 880 (5th Cir.

1998) (noting that it would be a "rare case indeed" in which

"misinterpretations of the federal rules could constitute excusable

neglect"); Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132, 133 (7th Cir.

1996) (notwithstanding Pioneer, "[t]he excusable neglect standard can

never be met by a showing of inability or refusal to read and

comprehend the plain language of the federal rules." (internal

quotation marks omitted)); Weinstock v. Cleary, Gottlieb, Steen &

Hamilton, 16 F.3d 501, 503 (2nd Cir. 1994) (same). These cases confirm

that our post-Pioneer precedents do not conflict with Pioneer in

refusing lightly to excuse an untimely notice of appeal caused by

ignorance of the rules.

III.

The district court found that one of the salient reasons for the

untimely notice of appeal was local counsel's ignorance of the Federal

Rules of Appellate Procedure. That finding was based on an exchange

between the court and local counsel that began with the court asking

counsel if he had known, on August 21, that the notice of appeal was

due that day:

MR. GURSKY: Well, by the math, obviously, when you add 60 days to

the -

THE COURT: How many days?

MR. GURSKY: Well, at this point, it's more than 60 because you -

THE COURT: Thirty.
4The Unions reject the district court's conclusion that Gursky was

mistaken about the period of time in which a notice of appeal could be

filed, arguing that his actions, in their totality, suggest that he

knew the deadline was 30 days. The Unions assert that once he realized

on August 22 that the notice of appeal had not been filed on time, 

Mr. Gursky immediately called lead counsel, Peter Leff, in

Washington, D.C. to inform him of the mishap and seek

counsel on remedying the situation. . . . Additionally, on

August 22, 2000, Mr. Gursky filed the Notice of Appeal with

the district court. . . . Obviously, if Mr. Gursky believed

that the Appellants had 60 days to file the Notice of

Appeal, he would not have taken such action on August 22nd.

The inference the Unions would have us draw, that Gursky's actions on

August 22 indicate that he knew the deadline had passed, is tenuous.

It could be that Gursky believed the deadline was 60 days, and only

discovered that it was 30 when he opened the package from Leff, which

presumably indicated the date the notice of appeal was due. In any

event, the court's factual finding is not clearly erroneous. 

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MR. GURSKY: Okay. Thirty. . . .

This factual finding4 informed the court's application of the four

Pioneer factors to its excusable neglect determination. See 507 U.S.

at 395. The district court observed that there would be "little danger

of prejudice" to Quebecor if the court granted the motion for extra

time; that "the length of the delay was minimal (one day), and . . .

would not have a serious impact on judicial proceedings"; and that

there was no evidence the Unions had acted in bad faith. Nevertheless,

it held that the "reason for the delay" was insufficient to justify an

extension of time: 

While the delay here was brief and Defendants have suffered

no prejudice, the fact remains that counsel's failure to

comply with a rule that is "mandatory and jurisdictional"

was the result of ignorance of the law and inattention to
5 To be sure, the district court cited Gochis, which stands for

the pre-Pioneer rule. See supra note 3. But the court’s reasoning is

fully consistent with Mirpuri, 212 F.3d at 631, and with other postPioneer case law. It thus commands our respect.

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detail. Gochis, 16 F.3d at 15 (citing [ United States] v.

Robinson, 361 U.S. 220, 229 (1960)). There were no "unique

or extraordinary circumstances" at play here. Id. at 14.

This Court therefore concludes that Plaintiffs' motion must

be denied. To find this neglect to be "excusable" would

only serve to condone and encourage carelessness and

inattention in practice before the federal courts, and

render the filing deadline set in Fed. R. App. P. 4(a)(1) a

nullity. For these reasons, Plaintiffs' Motion for

Extension of Time to File Notice of Appeal is DENIED. 

The Unions argue that the district court erred in its application

of the Pioneer standard when it rested its finding that their neglect

was not excusable on the absence of "unique or extraordinary

circumstances." We read the district court’s decision differently.

Having found that the reason for the delay was, in addition to

“inattention to detail,” counsel’s ignorance of a simple procedural

rule, the court cited the absence of “unique or extraordinary

circumstances” not as a talisman, but as a check on its conclusion that

this degree of carelessness and inattention warranted no relief. In

taking this approach, the court acted within its discretion and in

conformity with our post-Pioneer precedents in declining to excuse the

Unions' neglect.5 See Mirpuri, 212 F.3d at 631. 

Denial of the Motion for Extension of Time to File Notice of

Appeal is Affirmed.