ELR Citation: ELR 20571
No(s). 84-5570 (D.C. Cir. Jan 21, 1986)

The court holds that appellants failed to file a timely notice of appeal to the district court's dismissal of their suit challenging the Nuclear Regulatory Commission's (NRC's) refusal to hold a hearing prior to the effective date of proposed amendments to a nuclear power plant's operating license. The court first holds that appellants' notice of appeal, which was not filed within 60 days of the district court judgment, was thus untimely under Federal Rule of Appellate Procedure (FRAP) 4(a). The district court's judgment was entered on the day that its order dismissing the case was entered on the docket, not eight days later when the court issued a memorandum opinion supporting its order. The court then holds that the NRC's motion requesting the district court to clarify its opinion did not toll the 60-day appeal period granted by FRAP 4(a)(4). This is true whether the NRC's motion is characterized as a Federal Rule of Civil Procedure (FRCP) 59(e) motion to amend the judgment or an FRCP 60(b)(1) motion to correct a legal error in the judgment. Rule 59(e) requires that a motion to amend or alter a judgment be filed within 10 days of entry of the final judgment, and the NRC's motion was filed 17 days after the dismissal order. Rule 60(b)(1) also does not apply because it does not toll the appeal period.

The court holds that appellants were not entitled to conclude that the motion was a timely 59(e) motion, even though the district court considered the NRC's motion on the merits instead of dismissing it as not within the 10-day period following entry of judgment. Even if appellants could reasonably have concluded that the motion was a 59(e) motion, it was filed outside the 10-day window and thus would be untimely. Although courts have given special latitude to pro se litigants filing 59(e) motions after the 10-day deadline, appellants' counsel had a professional obligation to be aware of these rules and should not be allowed to circumvent them.

A dissent would have reached the merits by treating the case as if it had been transferred to the court under 28 U.S.C. §1631 (Federal Courts Improvement Act §301(a)), which requires a federal court that finds that it lacks jurisdiction to transfer the case to the proper federal court if such transfer is in the "interest of justice." Since appellants were understandably confused about the proper forum to challenge the NRC's action, the district court should have transferred the case under §1631 to the Court of Appeals. Because the case would have been properly before the court had the district court correctly applied §1631, the court should reach the merits. Although the parties failed to raise the §631 issue, the district court was still required to consider this issue of subject matter jurisdiction.

Counsel for Appellants
Martin H. Hodder
1131 Northeast 86th St., Miami FL 33138
(305) 751-8706

Counsel for Appellees
Michael B. Blume
United States Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20555
(202) 492-7000

Before WRIGHT, WALD, and GINSBURG, Circuit Judges.