Supreme Court Vacates Tenth's Decision that Attorney Workload Can Never Be Excusable Neglect Justifying Late Filing of Appeal Notice

Mitchell v. U.S., 2007 WL 555804 (6/18/07) - The Supreme Court granted the petition for certiorari filed in U.S. v. Mitchell, 464 F.3d 1149 (10th Cir. 2006), vacated the Tenth's decision and remanded for reconsideration in light of its decision last week in Bowles v. Russell, 2007 WL 1702870 (June 14, 2007). In Mitchell, the Notice of Appeal was filed one day after the ten-day time limit for filing in FRAP 4(b). Defendant filed an unopposed motion for an extension of time in which to file the notice, citing workload issues as the reason for the neglectful failure to file. The district court granted the motion. Sua sponte, the Tenth Circuit decided that the district court had abused its discretion in granting the unopposed motion and held that it lacked jurisdiction to consider the merits of the defendant's appeal because attorney workload could never be "excusable neglect" within the meaning of the rule. Apparently, the S.Ct. may be thinking its indication in Bowles that court-rule time limits are not jurisdictional means the government can forfeit a complaint about the timeliness of a criminal defendant's notice of appeal and the Tenth Circuit should not sua sponte revisit the district court's granting of an unopposed motion for an extension of time that is granted within the time limits of FRAP 4(b).