Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THEODORE WASHINGTON, No. 05-99009 Petitioner-Appellant, D.C. No. v. CV-95-02460-JAT

CHARLES L. RYAN,

Respondent-Appellee.

THEODORE WASHINGTON, No. 07-15536 Petitioner-Appellant, D.C. No. v. CV-95-02460-JAT

CHARLES L. RYAN,

Respondent-Appellee. OPINION

Appeal from the United States District Court for the District of Arizona James A. Teilborg, Senior District Judge, Presiding

Argued and Submitted En Banc March 22, 2016 San Francisco, California

Filed August 15, 2016 Before: Sidney R. Thomas, Chief Judge and William A. Fletcher, Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan Christen and Paul J. Watford, Circuit Judges.

Opinion by Judge Christen; Dissent by Judge Bybee; Dissent by Judge Watford

WASHINGTON V. RYAN

SUMMARY*

Habeas Corpus / Fed. R. App. P. 4(a) / Fed. R. Civ P. 60(b)

In appeal No. 07-15536, the en banc court reversed the district court’s order denying Arizona death row inmate…

Dissent by Judge BYBEE; Dissent by Judge WATFORD

OPINION

Theodore Washington, an Arizona death row inmate, filed a notice of appeal (“NOA”) thirty-one days after the district court denied his petition for writ of habeas corpus. Federal Rule of Appellate Procedure 4(a)(1) limited the window for filing this notice to just thirty days, but the rules also provided a grace period for requesting an extension of time. Due to a combination of circumstances — including an error by the court — Washington did not request an extension because he did not learn that his NOA was one business day late until well after the grace period expired. Washington filed a motion under Federal Rule of Civil Procedure 60(b) asking the district court to vacate and reenter its judgment so that his appeal could be deemed timely. The district court denied his request, and he appeals.

The State argues that the district court lacked the authority to vacate and reenter its judgment, and that our court is without jurisdiction to consider Washington’s appeal. We disagree.

*1089 The filing deadline in Rule 4(a)(1) is mandatory and jurisdictional, but from their inception, the rules have also given district courts…

with whom CALLAHAN, BEA, IKUTA, and WATFORD, Circuit Judges, join, dissenting:

I take no pleasure in writing this dissent. Washington’s counsel filed his notice of appeal one day late. The office of the Arizona Public Defender is well known to this court and enjoys an outstanding reputation. Washington’s lead counsel has earned the respect of this court; he is an experienced and conscientious attorney, an expert in death penalty appeals and habe-as petitions. For anyone who has litigated and has known the anxiety of counting and then recounting the days towards deadlines, this is a nightmare.

For at least the last fourteen years, the Supreme Court has been telling us that we have failed to appreciate the difference between jurisdictional rules and claim-processing rules. See, e.g., Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434-36 , 131 S.Ct. 1197 , 179 L.Ed.2d 159 (2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-63 , 130 S.Ct. 1237 , 176 L.Ed.2d 18 (2010); Union Pac. R.R. Co. v. Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81-82 , 130 S.Ct. 584 , 175 L.Ed.2d 428 (2009); Arbaugh v. Y & H Corp., 546 U.S. 500, 510-12 , 126…

dissenting:

I join Judge Bybee’s dissent, but like him I take no pleasure in voting to dismiss Theodore Washington’s appeal. Dismissing the appeal because his lawyer' filed the notice one day late strikes me as a grave injustice in the circumstances of this case. We are nonetheless compelled to take that action because Bowles v. Russell, 551 U.S. 205 , 127 S.Ct. 2360 , 168 L.Ed.2d 96 (2007), held that the filing deadline for civil appeals is jurisdictional and thus not subject to equitable exceptions. Id. at 214 , 127 S.Ct. 2360 . I offer a few thoughts below as to why that holding is worth revisiting, should the Supreme Court decide to take up the issue.

To begin with, neither of the rationales offered by the Court to support the decision in Bowles is sound. The Court relied in part on the fact that Congress itself set the filing deadline for civil appeals in a statute, 28 U.S.C. § 2107 , rather than delegating authority to the courts to set the deadline by court rule. 551 U.S. at 210-13 , 127 S.Ct. 2360 . But that fact proves nothing, really, about what Congress intended. Just because Congress can limit the jurisdiction of federal courts by statute does not mean that it…