United States Court of Appeals

For the First Circuit

No. 02-1889

GLORIA GARCÍA-VELÁZQUEZ;

JUAN CARLOS SIFRE-RIVERA; C/P SIFRE-GARCÍA,

Plaintiffs, Appellants,

v.

FRITO LAY SNACKS CARIBBEAN, a Division of

Pepsico Puerto Rico, Inc., JOSE LUIS PRADO, JANE DOE;

CONJUGAL PARTNERSHIP PRADO-DOE; ENRIQUE NIÑO, JOHANNE DOE;

CONJUGAL PARTNERSHIP NIÑO-DOE, A TO Z INSURANCE, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Harry Anduze Montaño with whom Noelma Colon-Cordoves was on

brief, for appellants.

Jose Luis González Castañer with whom Roberto Ariel Fernández,

González Castañer & Morales Cordero, Angel Muñoz Noya and Lespier,

Muñoz Noya & Rivera were on brief, for appellees.

February 2, 2004
1 The complaint also alleged several claims under Puerto Rico

statutory and constitutional law. 

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HOWARD, Circuit Judge. Plaintiffs-appellants Gloria

García and Juan Sifre appeal from a judgment dismissing their

employment discrimination lawsuit. Questioning our jurisdiction,

we asked the parties to brief the timeliness of this appeal. After

reviewing the parties' submissions, we conclude that we lack

jurisdiction because the notice of appeal was untimely.

I.

On March 6, 1997, appellants brought this lawsuit

alleging that García was constructively terminated from her

employment. The complaint alleged that García’s employer, Frito

Lay Snacks Caribbean, and her supervisors, Jose Luis Prado and

Enrique Niño, discriminated against her in violation of the Age

Discrimination in Employment Act, see 29 U.S.C. § 621 et seq.; the

Equal Pay Act, see 29 U.S.C. § 206(d)(1); and the Americans with

Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq.1 On

September 4, 1997, the district court entered a partial judgment

dismissing the suit against the supervisors because the federal

anti-discrimination statutes do not provide for individual

liability. On March 24, 2000, after the conclusion of discovery,

the court entered a second partial judgment dismissing all of the

federal claims against Frito Lay except for appellants' ADA claim.
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On July 12, 2001, Frito Lay filed a memorandum of law

alerting the court that, in its view, two recent appellate

decisions compelled the dismissal of appellants' ADA claim. On

August 22, 2001, the court instructed Frito Lay and appellants to

brief the effect of these new decisions on the pending ADA claim.

The court treated this briefing as another motion for summary

judgment. See García v. Frito Lay Caribbean, Inc., 181 F. Supp. 2d

38, 40 n.1 (D.P.R. 2001). On December 28, 2001, the court granted

Frito Lay’s motion and entered a final judgment dismissing the ADA

claim and declining to exercise supplemental jurisdiction over the

Puerto Rico law claims. Id. at 48. On January 16, 2002,

appellants filed a motion to alter or amend the judgment, see Fed.

R. Civ. P. 59(e), which the court denied on June 26, 2002. The

next day, June 27, 2002, appellants filed a notice of appeal, which

we shall assume was sufficiently specific to challenge the December

28, 2001 judgment and the June 26, 2002 order denying the Rule

59(e) motion. See In re Spookyworld, 346 F.3d 1, 6 (1st Cir.

2003).

II.

In every case, we are required to satisfy ourselves of

jurisdiction. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d

576, 580 (1st Cir. 1994). As we shall explain, the jurisdictional

question here is whether appellants' June 27, 2002 notice of appeal

was timely as to the December 28, 2001 judgment. 
2 Under Rule 6(a), a "legal holiday" is defined as:

New Year's Day, Birthday of Martin Luther King,

Jr., Washington's Birthday, Memorial Day,

Independence Day, Labor Day, Columbus Day,

Veteran's Day, Thanksgiving Day, Christmas Day,

and any other day appointed as a holiday by the

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A private party in a civil case generally must file his

or her notice of appeal within thirty days after entry of the order

or judgment from which he or she appeals. See Fed. R. App. P.

4(a). Compliance with this rule is "mandatory and jurisdictional."

Browder v. Ill. Dep't of Corr., 434 U.S. 257, 264 (1978) (internal

quotations and citations omitted). However, Fed. R. App. P.

4(a)(4)(A) tolls the running of this thirty-day period until after

the disposition of certain "timely filed" post-judgment motions,

including a motion under Fed. R. Civ. P. 59(e). Id. (emphasis

supplied). An untimely motion for reconsideration under Rule 59(e)

will not toll the running of the notice of appeal period.

See Feinstein v. Moses, 951 F.2d 16, 18 (1st Cir. 1991). Because

appellants filed their notice of appeal approximately six months

after the December 28, 2001 judgment, appellate jurisdiction exists

only if the notice of appeal period was tolled by the Rule 59(e)

motion. 

Rule 59(e) provides an aggrieved party with ten days

after the entry of judgment to file a motion to alter or amend the

judgment. This ten-day period does not include intermediate

weekends and "legal holidays." See Fed. R. Civ. P. 6(a).2 As
President or the Congress of the United States or

by the state in which the district court is held.

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noted above, the district court entered judgment on December 28,

2001. Excluding the weekends and holidays mentioned in Rule 6(a)

that occurred during this period results in the motion being due on

January 15, 2002, the day before appellants filed their Rule 59(e)

motion. The motion was therefore untimely.

Appellants do not dispute this line of analysis but

contend that New Year's Eve also should be counted as a "legal

holiday" under Rule 6(a) because the clerk's office was closed for

business by order of the Chief Judge. We disagree. New Year's Eve

is not listed in Rule 6(a), see supra at 4 n.2, and there is no

record evidence that it was appointed a holiday by the President or

Congress, or by the Governor or Legislature of Puerto Rico. See 5

U.S.C. § 6103; 1 L.P.R.A. § 71.

Appellants urge us to read Rule 6(a) to encompass days in

which the clerk's office is closed for business by order of the

Chief Judge. But the plain language of the Rule precludes such a

reading. The Rule, on its face, refers to a "legal holiday" as a

day appointed by the President, Congress, or the relevant state.

It does not grant this power to the federal judiciary. 

Our view of the matter is supported by the case law. The

Tenth Circuit has interpreted the identical "legal holiday"

definition in Fed. R. App. P. 26 not to encompass the day after
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Thanksgiving because, even though the Kansas state courts were

closed pursuant to an order issued by the Chief Justice of Kansas,

it was not a "legal holiday" in Kansas. See In re Cascade Oil Co.,

848 F.2d 1062, 1064 (10th Cir. 1988) (per curiam); see also Kirby

v. Gen. Elec. Co., 2000 WL 33917974, at *2 (W.D.N.C. Feb. 9, 2000),

aff'd, 2001 WL 1187957 (4th Cir. Oct. 9, 2001) (holding that

Christmas Eve and New Year's Eve were not "legal holidays" under

Rule 6(a) even though the district court was closed pursuant to

administrative order on both days); cf. Reyes-Cardona v. J.C. Penny

Co., 690 F.2d 1 (1st Cir. 1982) (holding that day honoring Eugenio

María de Hostos is "legal holiday" under Rule 6(a) because it is

declared a holiday under the statutes of Puerto Rico) (per curiam).

Our conclusion is also supported by the fact that jurisdictions

wishing to count the days on which the clerk's office is closed as

legal holidays have enacted local rules to this effect. For

example, instead of relying on the "legal holiday" definition

contained in the Federal Rules, the Federal Circuit has adopted a

local rule stating that "[l]egal holiday also means a day on which

the clerk's office is closed by order of the court or the chief

judge." See Fed. Cir. L.R. 26(a) (emphasis supplied). 

Appellants make two additional arguments in an attempt to

save their appeal. First, they claim that their Rule 59(e) motion

should be treated as timely because they spoke with an unnamed

individual in the clerk's office who told them that New Year's Eve
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was a holiday. Second, they contend that we should ignore the late

notice of appeal because the district court addressed the Rule

59(e) motion on its merits. We are not persuaded by either

argument.

In making their first argument, appellants invoke the

doctrine of "unique circumstances." This judge-made doctrine

permits the court to entertain a late-filed appeal in certain

cases. See Air Line Pilots Ass'n v. Precision Valley Aviation,

Inc., 26 F.3d 220, 225 (1st Cir. 1994). The doctrine was first

recognized by the Supreme Court in Thompson v. INS, 375 U.S. 384

(1964) (per curiam), but its continuing vitality has been

questioned, see Davignon v. Clemmey, 322 F.3d 1, 10 (1st Cir.

2003) (citing cases). In any event, this Circuit continues to

apply the doctrine, but only in rare situations. See Scola v.

Beaulieu, 131 F.3d 1073, 1074-75 (1st Cir. 1997); Air Line Pilots,

26 F.3d at 225; United States v. Heller, 957 F.2d 26, 28-29 (1st

Cir. 1992). 

To the extent it remains viable, the doctrine "applies

only where a party has performed an act which, if properly done,

would postpone the deadline for filing [the] appeal and has

received specific assurance by a judicial officer that this act has

been properly done." Osterneck v. Ernst & Whitney, 489 U.S. 169,
3 The court's actions or statements also must have occurred at

a point when, had the party not been led astray, it would have been

able to file a timely notice of appeal. See Airline Pilots, 26

F.3d at 225; Feinstein, 951 F.2d at 20.

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179 (1989).3 Under this standard, appellants' contention that we

could entertain their appeal because "the person who answered the

phone [in the clerk's office] advised that December 31, 2001 would

be a holiday” fails for two reasons. 

First, appellants were never told that, because December

31, 2001, was a holiday, the time for filing their Rule 59(e)

motion would be extended. They were told only that the clerk's

office was closed for New Year's Eve. Thus, appellants never

received the required "specific assurance" that their motion would

be timely if filed on January 16, 2002. See Osterneck, 489 U.S. at

178-79 (rejecting unique circumstances claim where court never

affirmatively represented to plaintiffs that their appeal was

timely filed); Heller, 957 F.2d at 29 (stating that courts apply

unique circumstances doctrine "only where a court has affirmatively

assured a party that [its motion] will be timely"). Second,

appellants did not receive any "assurance" from a judicial officer.

See Heller, 957 F.2d at 29 (the unique circumstances doctrine

requires that the assurance be made by "a judge, not an employee in

the office of the clerk”). Thus, the unique circumstances doctrine

simply does not apply. Id. at 31. 

 In presenting their second argument, appellants ask
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that we follow City of Hartford v. Chase, 942 F.2d 130, 134 (2d

Cir. 1991) ("[B]ecause the district court entertained the [Rule

59(e)] motion and ruled on its merits, the time for appeal may

begin to run anew from the date on which the court disposed of the

untimely application.") (internal quotations marks omitted). We

decline to follow Chase for several reasons. 

First is the Supreme Court's decision in Browder. There,

the Court held that a late-filed motion under Rule 59(e) did not

toll the running of the notice of appeal period even though the

district court adjudicated the motion on its merits. See Browder,

434 U.S. at 262. Second, Chase is inconsistent with our precedent.

We have held that "an untimely motion for reconsideration . . .

[is] a nullity and [will] not toll the time in which to appeal even

though the court considered and denied the motion on its merits."

Feinstein, 951 F.2d at 18 (quoting Flint v. Howard, 464 F.2d 1084,

1086 (1st Cir. 1972)). Third, Chase has been criticized by a

leading treatise as representing "an unusually casual view" of the

rule that notices of appeal must be timely filed. Charles A.

Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and

Procedure § 3950.4 at 177 n.11 (1999). Finally, the Second Circuit

has disavowed the broad language in Chase and has declined to

extend it beyond its particular facts. See Camacho v. City of

Yonkers, 236 F.3d 112, 116-17 (2d Cir. 2000). 
4 We are, of course, free to affirm the district court’s order

on any reason supported by the record. Feinstein, 951 F.2d at 21

n.6 (citing Rodriguez-Antuna, 871 F.2d at 3).

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III.

 While we lack jurisdiction over the appeal from the

December 28, 2001, judgment, we have jurisdiction over the appeal

from the June 26, 2002 order denying appellants' Rule 59(e) motion.

See Feinstein, 951 F.2d at 21. But, as we have just explained,

that motion was untimely. Because the district court lacked the

power to grant this motion, see Vargas v. Gonzalez, 975 F.2d 916,

917 (1st Cir. 1992), appellants' challenge to the denial of the

motion is doomed. See, e.g., Acevedo-Villalobos v. Hernandez, 22

F.3d 384, 390 (1st Cir. 1994); Feinstein, 951 F.2d at 21; RodriguezAntuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.

1989).4 

IV.

For the reasons set forth above, we dismiss appellants'

appeal from the district court’s December 28, 2001, judgment and

affirm the district court's June 26, 2002, order denying

appellants’ Fed. R. Civ. P. 59(e) motion.

So ordered.