Airline Pilots in the Serv. of Exec. Airlines, Inc., Couns. No. 2, Union of Prof'l Airmen v. Exec. Airlines, Inc., Airline Pilots in the Serv. of Exec. Airlines, Inc., Couns. No. 2, Union of Prof'l Airmen v. Exec. Airlines, Inc., Air New England, 569 F.2d 1174 (1st Cir. 1978). · Go Syfert
Search
Airline Pilots in the Serv. of Exec. Airlines, Inc., Couns. No. 2, Union of Prof'l Airmen v. Exec. Airlines, Inc., Airline Pilots in the Serv. of Exec. Airlines, Inc., Couns. No. 2, Union of Prof'l Airmen v. Exec. Airlines, Inc., Air New England, 569 F.2d 1174 (1st Cir. 1978). Cases Citing This Book View Copy Cite
95 citation events (11 in the last 25 years) across 34 distinct courts.
Strongest positive: Villa v. Village of Elmore (ohnd, 2003-03-03)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
cited Cited as authority (rule) Villa v. Village of Elmore
N.D. Ohio · 2003 · confidence medium
Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978)).
discussed Cited as authority (rule) Graphic Communications International Union v. Quebecor Printing Providence, Inc.
1st Cir. · 2001 · confidence medium
Co., 921 F.2d 393, 396 (1st Cir.1990) (attorney’s failure to list all plaintiffs on notice of appeal “does not constitute excusable neglect for purposes of Rule 4(a)(5) except in unusual or extraordinary circumstances”); Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (“A mistake made by an attorney or his staff [secretary wrote down incorrect deadline for notice of appeal] is not, except in unusual or extraordinary circumstances ... excusable neglect_”); Spound v. Mohasco Indus., Inc., 534 F.2d 404, 411 (1st C…
discussed Cited as authority (rule) United States v. Fraya, S.E.
D.P.R. · 1997 · confidence medium
Airline Pilots in the Serv. of Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (fact that attorney’s secretary noted incorrect deadline for appeal did not excuse attorney’s failure to file timely notice of appeal).
discussed Cited as authority (rule) Auto Specialties Manufacturing Co. v. Sachs (In Re Auto Specialties Manufacturing Co.)
Bankr. W.D. Mich. · 1991 · confidence medium
Quoting from Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir.), cert. denied, 429 U.S. 886 , 97 S.Ct. 238 , 50 L.Ed.2d 167 (1976), the court remarked that Excusable neglect calls for “circumstances that are unique or extraordinary.” (citations omitted.) If this includes a mere palpable mistake by experienced counsel, the requirement would be meaningless. 569 F.2d at 1175.
discussed Cited as authority (rule) Trooper Alvin T. Pontarelli v. Walter E. Stone, Trooper Alvin T. Pontarelli v. Walter E. Stone, Trooper Alvin T. Pontarelli v. Walter E. Stone, State of Rhode Island
1st Cir. · 1991 · confidence medium
The notice of appeal in Rivera seems indistinguishable from the notice of appeal sub judice; hence, as in Rivera, we conclude that the would-be appellants' inadvertent noncompliance with the FRAP 3(c) requirement does not, without more, "constitute excusable neglect for purposes of Rule 4(a)(5)." Id. (citing Airplane Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (reversing grant of extension where failure to file timely notice of appeal was due to secretarial error). 26 Under some circumstances, of course, a would-be appellant…
discussed Cited as authority (rule) Pontarelli v. Stone
1st Cir. · 1991 · confidence medium
The notice of appeal in Rivera seems indistinguishable from the notice of appeal sub judice; hence, as in Rivera , we conclude that the would-be appellants’ inadvertent noncompliance with the FRAP 3(c) requirement does not, without more, “constitute excusable neglect for purposes of Rule 4(a)(5).” Id. (citing Airplane Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (reversing grant of extension where failure to file timely notice of appeal was due to secretarial error).
cited Cited as authority (rule) Elias Rivera v. Puerto Rico Telephone Company
1st Cir. · 1990 · confidence medium
Airline Pilots in the Service of Executive Airlines, Inc., Counsel Number 2, Union of Professional Airmen v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978).
discussed Cited as authority (rule) Douglas E. Baker v. Larry Raulie
6th Cir. · 1989 · confidence medium
Moreover, as the First Circuit observed in identical circumstances, “[t]he issue here is date of filing of the [njotice, not progress of the mails.” Airline Pilots etc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (per curiam).
discussed Cited as authority (rule) Clarissa Marsh v. Gloria Richardson
6th Cir. · 1989 · confidence medium
Reinsurance, 808 F.2d at 1251 ; Oregon, 680 F.2d at 1302; Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (construing predecessor to current rule); Levisa Stone Corp. v. Elkhorn Stone Co., 411 F.2d 1208 (6th Cir.1969) (construing predecessor).
discussed Cited as authority (rule) Buzick v. United States
Ct. Cl. · 1988 · confidence medium
Meza v. Washington State Dep’t of Social and Health Servs., 683 F.2d 314, 315 (9th Cir.1982); Pellegrino v. Marathon Bank, 640 F.2d 696, 698 (5th Cir.1981) (Pro se Appellant); Fase v. Seafarers Welfare and Pension Plan, 574 F.2d 72, 76, 77 (2d Cir. 1978); Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir. 1978); Gooch v. Skelly Oil Co., 493 F.2d 366, 370 (10th Cir.), cert. denied, 419 U.S. 997 , 95 S.Ct. 311 , 42 L.Ed.2d 270 (1974); Grantham v. Morgan Linen Serv., 426 F.2d 237, 238 (7th Cir.1970); Winchell v. Lortscher, 377 F.2d 247, 253 (8th Cir.1967).
discussed Cited as authority (rule) 650 Park Avenue Corporation v. Maria McRae
2d Cir. · 1988 · confidence medium
See also Oregon v. Champion Int’l Corp., 680 F.2d 1300 , 1300-01 (9th Cir.1982) (per curiam) (no excusable neglect where notice of appeal arrived one day late because envelope was addressed to state court); Selph v. Council of the City of Los Angeles, 593 F.2d 881, 883 (9th Cir.1979) (no excusable neglect where “confusion of moving [counsel’s] office disrupted normal calendaring practices”); Airline Pilots in the Serv. of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1174-75 (1st Cir.1978) (per curiam) (no excusable neglect where secretary mistakenly recorded end…
discussed Cited as authority (rule) Redfield v. Continental Casualty
7th Cir. · 1987 · confidence medium
The First Circuit has required "circumstances that are unique or extraordinary." Airline Pilots in Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (notice of appeal was mailed late because of mistake by attorney's secretary as to when the appeal period expired; held not to be unusual or extraordinary circumstances warranting a finding of excusable neglect).
discussed Cited as authority (rule) Redfield v. Continental Casualty Corp.
7th Cir. · 1987 · confidence medium
The First Circuit has required “circumstances that are unique or extraordinary.” Airline Pilots in Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (notice of appeal was mailed late because of mistake by attorney’s secretary as to when the appeal period expired; held not to be unusual or extraordinary circumstances warranting a finding of excusable neglect).
cited Cited as authority (rule) Arcadia Valley Hosp. v. Bowen
E.D. Mo. · 1986 · confidence medium
Airline Pilots v. Executive Airlines, Inc., et al., 569 F.2d 1174, 1175 (5th Cir.1978).
discussed Cited as authority (rule) Harris Baking Co. v. S.B. Thomas, Inc.
D. Me. · 1984 · confidence medium
Just as “a mere palpable mistake by counsel or by counsel’s staff” does not constitute excusable neglect sufficient to relieve from the consequences of counsel’s mistake in other circumstances, Spound v. Mohasco Industries, Inc., 534 F.2d 404, 410 (1st Cir.1976), cert. den. 429 U.S. 886 , 97 S.Ct. 238 , 50 L.Ed.2d 167 (interpreting Fed.R.App.P. 4(a); Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (per curiam), it is not sufficient basis to overturn a fully effective waiver of jury trial.
discussed Cited as authority (rule) Chipperfield v. Posi-Seal International
D.R.I. · 1982 · confidence medium
The application of the standard in civil appeals has been limited to “unique and extraordinary circumstances” and it is made clear that circumstances of oversight or neglect of counsel do not meet the standard. *1324 In Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) the court stated: “A mistake made by an attorney or his staff is not, except in unusual or extraordinary circumstances not present here, such excusable neglect as to invoke the rule.” Although there can be no doubt that Plaintiff’s counsel’s personal problems were sufficient to cause him …
cited Cited as authority (rule) Begin v. Jerry's Sunoco, Inc.
Me. · 1981 · confidence medium
Spound, 534 F.2d at 411 (counsel); Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir. 1978) (staff) (per cu-riam).
discussed Cited as authority (rule) United States v. Luis Ramirez Ferrer
1st Cir. · 1980 · confidence medium
See, e. g., USM Corp. v. GKN Fasteners Ltd., 578 F.2d 21, 22 (1st Cir. 1978); Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir. 1978); Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir.), cert. denied, 429 U.S. 886 , 97 S.Ct. 238 , 50 L.Ed.2d 167 (1976); Pasquale v. Finch, 418 F.2d 627, 629-30 (1st Cir. 1969). *1191 While the present facts would not warrant a finding of excusable neglect in a civil case under Rule 4(a), we are not persuaded that the district court here abused its discretion under Rule 4(b), where the criminal defendant’s special interest …
discussed Cited "see" Brian Atwood Wansor v. George Hantscho Co., Inc. v. W. R. Bean & Son, Inc., Third-Party
3rd Cir. · 1978 · signal: see · confidence high
See Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 1 Cir., 1978, 569 F.2d 1174, 1175 ; 9 Moore’s Federal Practice, ¶ 204.13[1], at 967-74, for explanations of the excusable neglect requirement and examples of the most frequently accepted excuses.
discussed Cited "see, e.g." Borio v. Coastal Marine Construction Co.
11th Cir. · 1989 · signal: see also · confidence low
Chipser, 600 F.2d at 1063 (citing Spound, 534 F.2d at 411 ); see also McRae, 836 F.2d at 767 . 22 The First Circuit in Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.1978) (per curiam) addressed the issue of excusable neglect in a factually similar case.
discussed Cited "see, e.g." In Re Leasing Services, Inc.
2d Cir. · 1985 · signal: see also · confidence medium
See also Airline Pilots in Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1174-75 (1 Cir.1978) (per curiam) (quoting Spound and reversing an order allowing a one-day extension of time to file a notice of appeal where the reason for the late filing was that counsel's secretary had diaried the date by which an appeal had to be taken as September 11 rather than September 1); Selph v. Council of City of Los Angeles, supra, 593 F.2d at 883-84 (failure to file timely appeal because counsel was moving offices, which disrupted normal calendaring practices, "does not co…
discussed Cited "see, e.g." Hassett v. Far West Federal Savings & Loan Ass'n
2d Cir. · 1985 · signal: see also · confidence medium
See also Airline Pilots in Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1174-75 (1 Cir.1978) (per curiam) (quoting Spound and reversing an order allowing a one-day extension of time to file a notice of appeal where the reason for the late filing was that counsel’s secretary had diaried the date by which an appeal had to be taken as September 11 rather than September 1); Selph v. Council of City of Los Angeles, supra, 593 F.2d at 883-84 (failure to file timely appeal because counsel was moving offices, which disrupted normal calendaring practices, “does no…
discussed Cited "see, e.g." Greene v. Union Mutual Life Insurance
D. Me. · 1984 · signal: see also · confidence low
See also Airline Pilots in the Service of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.1978) and Pinero Schroeder v. Federal National Mortgage Association, 574 F.2d 1117 (1st Cir.1978).
discussed Cited "see, e.g." Northwest Commercial Fishermen's Federal Recovery Ass'n v. United States
Ct. Cl. · 1984 · signal: see also · confidence medium
The requirements for establishing excusable neglect are strict, see Sprout v. Farmers Insurance Exchange, 681 F.2d 587, 588 (9th Cir.1982); Prestex, Inc. v. United States, 4 Cl.Ct. at 17 , and are satisfied only in “extraordinary cases where injustice would otherwise result.” See Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (9th Cir.1982); see also Airline Pilots in the Service of Executive Airlines, Inc., Counsel No. 2 v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978).
discussed Cited "see, e.g." Estate Butler's Tire & Battery Co., Inc. v. Ferrous Financial Services
9th Cir. · 1979 · signal: see, e.g. · confidence low
See, e. g., Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir. 1978) (secretary to appellant's attorney made mistake in entering date on which period for appeal expired); Gooch v. Skelly Oil Co., 493 F.2d 366 (10th Cir. 1974) (one of appellant's attorneys received copy of trial court's order but the other did not) 12 The district court also cited Alley v. Dodge Hotel, 163 U.S.App.D.C. 320 , 501 F.2d 880 (1974), which is also distinguishable.
discussed Cited "see, e.g." Headlee v. Ferrous Financial Services
9th Cir. · 1979 · signal: see, e.g. · confidence low
See, e. g., Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir. 1978) (secretary to appellant’s attorney made mistake in entering date on which period for appeal expired); Gooch v. Skelly Oil Co., 493 F.2d 366 (10th Cir. 1974) (one of appellant’s attorneys received copy of trial court’s order but the other did not). .
Retrieving the full opinion text from the archive…
Airline Pilots in the Service of Executive Airlines, Inc., Counsel Number 2, Union of Professional Airmen
v.
Executive Airlines, Inc., Airline Pilots in the Service of Executive Airlines, Inc., Counsel Number 2, Union of Professional Airmen v. Executive Airlines, Inc., Air New England
77-1448.
Court of Appeals for the First Circuit.
Feb 2, 1978.
569 F.2d 1174
Cited by 32 opinions  |  Published

569 F.2d 1174

AIRLINE PILOTS IN the SERVICE OF EXECUTIVE AIRLINES, INC.,
COUNSEL NUMBER 2, UNION OF PROFESSIONAL AIRMEN,
Plaintiff, Appellant,
v.
EXECUTIVE AIRLINES, INC., et al., Defendants, Appellees.
AIRLINE PILOTS IN the SERVICE OF EXECUTIVE AIRLINES, INC.,
COUNSEL NUMBER 2, UNION OF PROFESSIONAL AIRMEN,
Plaintiff, Appellee,
v.
EXECUTIVE AIRLINES, INC., et al., Defendants, Appellees,
Air New England, Defendant, Appellant.

Nos. 77-1448, 77-1471.

United States Court of Appeals,
First Circuit.

Argued Jan. 3, 1978.
Decided Feb. 2, 1978.

Loyd M. Starrett, Boston, Mass., with whom Arthur G. Telegen and Foley, Hoag & Eliot, Boston, Mass., were on brief, for plaintiff, appellant, Air New England.

Richard E. Davis, Barre, Vt., with whom David L. Cleary and Richard E. Davis Associates, Inc., Barre, Vt., were on brief, for defendants, appellees, Airline Pilots in the Service of Executive Airlines, Inc., Counsel No. 2, Union of Professional Airmen.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

PER CURIAM.

1

The sole issue in this case is whether the district court erred as a matter of law in allowing Airline Pilots Union, plaintiff-appellee, to file its Notice of Appeal late pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure. The pertinent portion of the rule reads:

2

Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

3

The undisputed facts are these. The Notice of Appeal was dated and mailed on September 2, 1977. It should have been filed in the clerk's office on September 1. The reason given by appellee for the late mailing is that:

4

Through inadvertence or mistake, a secretary in the employ of plaintiff's attorney diaried the date upon which the appeal period expired as September 11th instead of September 1st. As a result, plaintiff's attorney believed the period expired on September 11th and that mailing the Notice of Appeal on September 2nd would result in the same being received by the office of the Clerk prior to September 11th.

5

We regard as completely immaterial appellee's argument that the Labor Day weekend resulted in a five day delay for receipt by the clerk of the Notice. The issue here is date of filing of the Notice, not progress of the mails.

6

Cases from this and other circuits make it clear that a mistake such as this is not excusable neglect within the meaning of the rule. In Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir.), cert. denied, 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976), we stated:

7

Excusable neglect calls for "circumstances that are unique or extraordinary." (Citations omitted.) If this includes a mere palpable mistake by experienced counsel, the requirement would be meaningless.

8

In Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969), we held that a mistake in the handling of the mail within the Justice Department did not come within the provisions of the rule. See also Flint v. Howard, 464 F.2d 1084 (1st Cir. 1972), and 9 Moore's Federal Practice § 204.13(1).

9

A mistake made by an attorney or his staff is not, except in unusual or extraordinary circumstances not present here, such excusable neglect as to invoke the rule.

10

The order of the district court in 77-1471 allowing appellee an extension of time for filing a Notice of Appeal is reversed. Since Rule 4(a) is jurisdictional, the appeal tardily noticed by appellee in 77-1448 is dismissed.