FRAP Rule 4(a)(6) Provides the Only Method For Reopening the Time to File a Notice of Appeal
IN RE: FISCHER (January 23, 2009)
Eugene Fischer is in prison. In a proceeding in the district court, the Government moved to renew a forfeiture judgment against him. The court granted the Government’s request by an order entered on November 5, 2008. Fischer asserts that he never was served with a copy of the order and only discovered its existence when he received a copy of the docket sheet in January 2009. His time for appeal having long ago run, Fischer filed a petition for mandamus seeking permission to file a notice of appeal from the November order.
In their opinion, Judges Ripple, Manion and Rovner denied his petition (but provided the road map for Fischer to follow). The Court cited to FRAP 4(a)(6). That rule provides that a district court can reopen the time to file a notice of appeal if: a) the party did not receive notice of the entry of the order being appealed, b) the party seeks leave within the earlier of 180 days after the entry of the order or 7 days after receiving proper notice, and c) no party would be prejudiced. The Court directed Fischer to file the proper motion in the district court with an explanation of his receipt of the order and a statement commenting on any prejudice to a party.
