Elmer Gerard Pratt v. D.J. McCarthy Superintendent, 850 F.2d 590 (9th Cir. 1988). · Go Syfert
Elmer Gerard Pratt v. D.J. McCarthy Superintendent, 850 F.2d 590 (9th Cir. 1988). Cases Citing This Book View Copy Cite
61 citation events (10 in the last 25 years) across 12 distinct courts.
Strongest positive: Conecsus LLC v. Filter Technology LTD (ord, 2021-10-27)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 38 distinct citers. How cited ↗
cited Cited as authority (rule) Conecsus LLC v. Filter Technology LTD
D. Or. · 2021 · confidence medium
Nov. 19, 1996) (citing Pratt v. McCarthy, 850 F.2d 590, 592 (9th Cir. 1988)).
cited Cited as authority (rule) (PS) Stewart v. Property and Casualty Ins. Co. of Hartford
E.D. Cal. · 2021 · confidence medium
Marx, 87 F.3d at 1053 (citing Pratt v. 8 McCarthy, 850 F.2d at 590, 593 (9th Cir. 1988)) (emphasis in original); see also Sprout v. 9 Farmers Ins.
discussed Cited as authority (rule) (PS) Stewart v. American General Finance, Inc.
E.D. Cal. · 2020 · confidence medium
It is possible plaintiff intended to verify his pleading, but the court 28 declines to find his reply admissible on this basis. 1 (see Pratt v. McCarthy, 850 F. 2d 590, 592 (9th Cir. 1988); Alaska Limestone Corp. v. Hodel, 2 799 f. 2d 1409, 1411 (9th Cir. 1986)), the current more lenient standard is set forth in Pioneer Inv. 3 Servs.
cited Cited as authority (rule) United States v. Magana-Ayala
9th Cir. · 2005 · confidence medium
Marx v. Loral Corp., 87 F.3d 1049, 1053 (9th Cir. 1996) (citing Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988)).
examined Cited as authority (rule) Graves v. Rebel Rents, Inc. (In Re Rebel Rents, Inc.) (3×) also: Cited "see, e.g."
Bankr. C.D. Cal. · 2005 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 592 (9th Cir.1988); Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir.1986) (per curiam); Oregon v. Champion Int’l Corp., 680 F.2d 1300 , 1301 (9th Cir.1982).
discussed Cited as authority (rule) Laffit Pincay, Jr. Christopher J. McCarron v. Vincent S. Andrews Robert Andrews Vincent Andrews Management Corp. (2×)
9th Cir. · 2004 · confidence medium
As we explained in Marx , our "strict standard," which required both a showing of extraordinary circumstances that prevented timely filing and injustice resulting from denying an extension, id. at 1053 (citing Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988)), gave way to an equitable determination that involves consideration of the four Pioneer factors.
discussed Cited as authority (rule) Lehr v. Wilson (2×) also: Cited "see"
9th Cir. · 1997 · confidence medium
We review for an abuse of discretion the district court's denial of this motion, see Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), and we affirm. 3 In his motion for an extension of time to file a notice of appeal, Lehr provides no reason as to why he was unable to file a timely notice.
discussed Cited as authority (rule) Marx v. Loral Corp. (2×)
9th Cir. · 1996 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988).
discussed Cited as authority (rule) Enos v. Pacific Transfer & Warehouse, Inc.
Haw. · 1996 · confidence medium
Corp. v. McRae, 836 F.2d 764, 767 (CA2 1988); Pratt v. McCarthy, 850 F.2d 590, 592 (CA9 1988), while others have adopted a more flexible approach similar to that employed by the Court of Appeals in this case, see, e.g., Consolidated Freightways Corp. of Delaware v. Larson, 827 F.2d 916 (CA3 1987), cert. denied sub nom.
discussed Cited as authority (rule) Ras Adisa Gamba Oluwa v. G. Souza P. Ramacher
9th Cir. · 1995 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 592 (9th Cir.1988); Northern Alaska Environmental Center v. Lujan, 961 F.2d 886, 889 (9th Cir.1992). 3 Oluwa contends the district court abused its discretion in denying his motion for an extension of time to file a notice of appeal from the underlying judgment, because prison officials seized his legal documents and because he was seriously ill.
discussed Cited as authority (rule) Richard Berkey v. Texaco Inc.
9th Cir. · 1994 · confidence medium
Although Berkey's motion for an extension was filed within the time permitted by Rule 4(a)(5), the district court found that he failed to establish excusable neglect. 5 We review the district court's finding under 4(a)(5) for an abuse of discretion, Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), and we agree that he has not met the strict standard used to determine excusable neglect.
discussed Cited as authority (rule) James E. Caine v. Gordon R. Sullivan, Acting Secretary of the Army
9th Cir. · 1994 · signal: cf. · confidence medium
Matter of Jones, 970 F.2d 36, 39 (5th Cir.1992); cf. Pratt v. McCarthy, 850 F.2d 590, 594 (9th Cir.1988) (abuse of discretion standard of review for grant of extension of time for filing notice of appeal due to excusable neglect under Fed.R.App.P. 4(a)(5)). 4 The 1991 amendment to Fed.R.App.P. 4(a)(6) provides in relevant part that: 5 The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion ... reopen the …
cited Cited as authority (rule) United States v. Mitchum L. Pastor
9th Cir. · 1994 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988).
examined Cited as authority (rule) Attorneys Title Co. v. Tara Partners, L.P. (4×) also: Cited "see"
9th Cir. · 1993 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988).
cited Cited as authority (rule) Concepcion S. Wabol v. Victorino U. Villacrusis Philippine Goods, Inc. Transamerica Corp.
9th Cir. · 1993 · confidence medium
United States v. Frank, 956 F.2d 872, 882 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 363 , 121 L.Ed.2d 276 (1992); Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Fernando Nino Andrade
9th Cir. · 1993 · confidence medium
The appeal is untimely, see Fed.R.App.P. 4(b), and no unique circumstances exist to warrant the exercise of jurisdiction over this appeal. ** See United States v. Prairie Pharmacy, Inc., 921 F.2d 211, 213-14 (9th Cir.1990); Pratt v. McCarthy, 850 F.2d 590, 592 (9th Cir.1988), reh'g denied, 878 F.2d 331 (1989). 2 Accordingly, this appeal is DISMISSED as untimely.
discussed Cited as authority (rule) Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership (2×)
SCOTUS · 1993 · confidence medium
Corp. v. McRae, 836 F. 2d 764, 767 (CA2 1988); Pratt v. McCarthy, 850 F. 2d 590, 592 (CA9 1988), while others have adopted a more flexible approach similar to that employed by the Court of Appeals in this case, see, e. g., Consolidated Freightways Corp. of Delaware v. Larson, 827 F. 2d 916 (CA3 1987), cert. denied sub nom.
discussed Cited as authority (rule) United States of America Sandra Emrich, Revenue Officer, Internal Revenue Service v. John Theakston, United States of America Sandra Emrich, Revenue Officer, Internal Revenue Service, Jill Brunberg v. John Theakston, and James Joseph Lynch, Jr.
9th Cir. · 1992 · confidence medium
United States v. Frank, 933 F.2d 1491, 1500 (9th Cir.), superseded on other grounds, 956 F.2d 872 (9th Cir.1991), cert. denied, 61 U.S.L.W. 3283 (U.S. Oct. 13, 1992) (No. 91-8230); Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988).
cited Cited as authority (rule) Abraham Stein v. Roger Crist, Warden Robert Corbin
9th Cir. · 1992 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988).
discussed Cited as authority (rule) Wilbur Brown v. Secretary of the Department of the Treasury
9th Cir. · 1992 · confidence medium
United States v. Frank, 933 F.2d 1491, 1500 (9th Cir.), superseded on other grounds, 956 F.2d 872 (9th Cir.1991), cert. denied, 61 U.S.L.W. 3283 (U.S. Oct. 13, 1992) (No. 91-8230); Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988).
cited Cited as authority (rule) David Agosto v. William J. Rifley and Lola K. Rifley
9th Cir. · 1992 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Jude Somerset Hardesty (2×)
9th Cir. · 1992 · confidence medium
See Atonio v. Wards Cove Packing Co., 810 F.2d at 1478-79 ; Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988); United States v. Mount, 438 F.2d 1072, 1074 (9th Cir.1970).
discussed Cited as authority (rule) Dawn v. Margolis (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988).
cited Cited as authority (rule) Elder v. Holloway
9th Cir. · 1991 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988) (only en banc court has power to reject circuit precedent). 12 Finally, in this case we cannot say that injustice has occurred.
cited Cited as authority (rule) Elder v. Holloway
9th Cir. · 1991 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988) (only en banc court has power to reject circuit precedent).
cited Cited as authority (rule) Alaska Housing Finance Corporation v. Mary Lou Love
9th Cir. · 1991 · confidence medium
Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988); LeVick v. Skaggs Co., 701 F.2d 777, 778 (9th Cir.1983).
discussed Cited as authority (rule) Cleek Aviation v. United States
Ct. Cl. · 1991 · confidence medium
Finding excusable neglect under the circumstances of this case “would frustrate and circumvent Rule 4(a)’s purpose of insuring finality of judgment.” Cleek, 20 Cl.Ct. at 770 (quoting Diliberti, 4 Cl.Ct. at 507 ; citing Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.), reh’g denied, 878 F.2d 331 (9th Cir.1989); In re O.P.M.
discussed Cited as authority (rule) Medicare&medicaid Gu 38,961 United States of America v. Prairie Pharmacy, Inc. (2×) also: Cited "see"
9th Cir. · 1990 · confidence medium
“A court abuses its discretion when it bases its decision on an erroneous conclusion of law or when the record contains no evidence on which it could rationally base its decision." Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), reh’g denied, 878 F.2d 331 (9th Cir.1989) (quoting Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir.1986)).
discussed Cited as authority (rule) Cleek Aviation v. United States
Ct. Cl. · 1990 · confidence medium
Finding excusable neglect under the circumstances of this case “would frustrate and circumvent Rule 4(a)’s purpose of insuring finality of judgment.” Diliberti, 4 Cl.Ct. at 507 ; Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988), reh’g denied, 878 F.2d 331 (9th Cir.1989); In re O.P.M.
cited Cited "see" Calderon v. United States District Court
9th Cir. · 1998 · signal: see · confidence high
See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv.
cited Cited "see" 98 Cal. Daily Op. Serv. 1704, 98 Daily Journal D.A.R. 2393 Arthur Calderon, Warden, of the California State Prison, San Quentin v. United States District Court for the Central District of California
9th Cir. · 1998 · signal: see · confidence high
See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv.
cited Cited "see" Leslie Arthur Whaley v. Oregon Board of Parole
9th Cir. · 1996 · signal: see · confidence high
See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), reh'g denied, 878 F.2d 331 (1989) (time limit to file notice of appeal is mandatory and jurisdictional)
discussed Cited "see" United States v. Fabian Ezquiel Gonzalez
9th Cir. · 1992 · signal: see · confidence high
See Prairie Pharmacy, Inc., 921 F.2d at 213 (citing Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988)). 7 Here, in his declaration in support of the request for a 30-day extension to file an appeal, Gonzalez' counsel stated that (1) Gonzalez informed him that he wished to appeal after expiration of the 10-day period for filing an appeal; (2) an appeal was not filed within the 10-day period because Gonzalez had waived his right to appeal as part of a plea agreement; (3) Gonzalez was unable to properly assist in the appeal because of "organic brain disfunction;" and (4) the failure to timely f…
discussed Cited "see" Donald A. Vogelsang v. Patterson Dental Company, a Delaware Corporation, Pda, Inc., a Minnesota Corporation
8th Cir. · 1990 · signal: see · confidence high
As the district court observed, its conclusion was consistent with recent decisions from other circuits; see Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988); 650 Park Avenue Corp. v. McRae, 836 F.2d 764, 766 (2d Cir.1988); Oregon v. Champion Int’l Corp., 680 F.2d 1300 , 1301 (9th Cir.1982) (per curiam), and is easily distinguished from cases involving excusable neglect based on mail delivery.
discussed Cited "see" Vogelsang v. Patterson Dental Co. (2×) also: Cited "see, e.g."
D. Minnesota · 1989 · signal: accord · confidence high
The court concluded that even had counsel provided a sworn statement that he indeed transmitted the completed notice to his clerical service, “a finding of excusable neglect would not be justified [because counsel] had ample opportunity to learn that it had not been filed.” Id.; accord Pratt v. McCarthy, 850 F.2d 590, 592 (9th Cir.1988) (Finding no excusable neglect where attorneys for habeas petitioner failed to check “to ensure that a notice of appeal was filed when the deadline approached.
discussed Cited "see, e.g." In re: The Yucca Group, LLC
9th Cir. BAP · 2012 · signal: see, e.g. · confidence medium
See, e.g., Pratt v. 13 McCarthy, 850 F.2d 590, 593 (9th Cir. 1988) (strict standard 14 required both a showing of extraordinary circumstances that 15 prevented timely filing and injustice resulting from denying an 16 extension of time).
cited Cited "see, e.g." Advance America Services, Inc. v. United States
Fed. Cl. · 1995 · signal: see also · confidence medium
See also Pratt v. McCarthy, 850 F.2d 590, 593 (9th Cir.1988), reh’g denied, 878 F.2d 331 (9th Cir.1989).
Retrieving the full opinion text from the archive…
Elmer Gerard PRATT, Petitioner-Appellant,
v.
D.J. McCARTHY, Superintendent, Respondent-Appellee
87-5540.
Court of Appeals for the Ninth Circuit.
Jun 29, 1988.
850 F.2d 590
Paul N. McCloskey, Jr., Brobeck, Phleger & Harrison, Palo Alto, Cal., for petitioner-appellant., Richard B. Cullather, State of Cal., Attorney General’s Office, Los Angeles, Cal., for respondent-appellee.
Wallace, Beezer, Leavy.
Cited by 41 opinions  |  Published
WALLACE, Circuit Judge:

The district court granted Pratt’s motion, pursuant to Fed.R.App.P. 4(a), for an extension of time in which to file a notice of appeal. The district court concluded that a misunderstanding among Pratt’s counsel concerning who would file the notice of appeal constituted excusable neglect for purposes of Rule 4(a)(5). Because we conclude that the district court abused its discretion in finding excusable neglect, we dismiss the appeal for lack of jurisdiction.

I

On August 12, 1986, the district court dismissed Pratt’s application for a writ of habeas corpus. On August 15, 1986, the district court entered its judgment, and mailed a copy of the judgment to Pratt’s pro bono lead attorney, Stuart Hanlon. Hanlon distributed a copy of the judgment to Pratt’s other four pro bono attorneys of record.

After the district court’s decision, Paul McCloskey, one of Hanlon’s co-counsel, agreed to prepare Pratt’s appellate brief. McCloskey, however, assumed that Hanlon would file the notice of appeal while Han-lon assumed that McCloskey would do so. The record does not reflect the understanding of Pratt's other attorneys. Both McCloskey and Hanlon left for vacation on August 28, 1986. McCloskey returned on September 15, 1986. Hanlon returned on September 26, 1986. Hanlon was ill until October 3,1986, at which time both Hanlon and McCloskey learned that no one had filed a notice of appeal.

On October 7,1986, Hanlon filed a notice of appeal and a motion for an extension of time to file a notice of appeal pursuant to Fed.R.App.P. 4(a)(1), (5). On November 10, 1986, the district court held a hearing on the motion, and on December 8, 1986, issued an order granting Pratt’s motion to extend time for filing a notice of appeal and deemed that the appeal was filed on October 7,1986. In granting the motion to extend time, the district court found “that under the totality of circumstances there are extraordinary facts [warranting an extension]” and “that the delay in filing a Notice was due to misunderstanding between counsel rather than lack of diligence, therefore not justifying denial of an appeal concerning a Petition for Habeas Corpus.”

We review the district court’s order granting a motion for an extension to file a notice of appeal for abuse of discretion. See Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir.1986) (per curiam) (Alaska Limestone). “A court abuses its discretion when it bases its decision on an erroneous conclusion of law or when the record contains no evidence on which it could rationally have based its decision.” Id. If the district court abused its discretion in finding excusable neglect, the notice of appeal is untimely, and we lack jurisdiction. See Meza v. Washington State Department of Social and Health Services, 683 F.2d 314, 315-16 (9th Cir.1982) (Meza).

II

Rule 4(a) of the Federal Rules of Appellate Procedure governs the district court’s consideration of a motion to extend time to file a notice of appeal. In a civil case, a notice of appeal must be filed within 30 days of entry of judgment, unless the United States is a party. Fed.R.App.P. 4(a)(1). “This 30-day time limit is ‘mandatory and jurisdictional.’ ” Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978), quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960) (Robinson). A habeas corpus proceeding is a civil action subject to the time require[*592] ments of Rule 4(a). Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir.1981) (Pettibone). The district court may extend the appropriate time period set out in Rule 4(a)(1) “if two requirements are met: (1) the motion for the extension of time is filed no later than 30 days after the expiration of the original appeal period; and (2) the moving party makes a sufficient showing of ‘excusable neglect or good cause’ for not meeting the original deadline. Fed.R. App.P. 4(a)(5).” Alaska Limestone, 799 F.2d at 1411.

In the case before us, the district court correctly determined that Pratt met the first requirement. Hanlon filed the notice of appeal and the motion for an extension of time within 30 days after the expiration of the original appeal period. Thus, the issue we face is whether the district court abused its discretion in concluding that Pratt established “excusable neglect” for not meeting the original deadline.

In this circuit, the standard for determining excusable neglect is a strict one. Alaska Limestone, 799 F.2d at 1411; Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (9th Cir.1982) (per curiam) (Champion International). The standard only allows an extension of time in “ ‘extraordinary cases where injustice would otherwise result.’ ” Alaska Limestone, 799 F.2d at 1411, quoting Champion International, 680 F.2d at 1301; see also Islamic Republic of Iran v. Boeing Co., 739 F.2d 464, 465 (9th Cir.1984) (per curiam) (Islamic Republic) (“Since the appellant here received notice of entry of judgment, the district court’s finding of excusable neglect is sustainable only if there were extraordinary circumstances that prevented a timely filing and denying the appeal would result in injustice.”), cert. denied, 470 U.S. 1053, 105 S.Ct. 1755, 84 L.Ed.2d 819 (1985); Meza, 683 F.2d at 315 (“ ‘Extensions of time for appeal should not be granted absent ... extraordinary circumstances where injustice would otherwise result.’ ” (citation omitted)). “Inadvertence or mistake of counsel ... does not constitute excusable neglect under this standard.” Alaska Limestone, 799 F.2d at 1411, citing Champion International, 680 F.2d at 1301. Indeed, Pratt concedes on appeal that our precedents “unequivocally” hold that inadvertence or mistake of counsel does not constitute excusable neglect under our strict standard. Extending the excusable neglect exception to the mistake of counsel would be inconsistent with the intent of the Advisory Committee on Appellate Rules to limit the exception to extraordinary cases and thwart the rule’s purpose of promoting finality of judgments. See Champion International, 680 F.2d at 1301 (refusing to extend the excusable neglect exception to the clerical errors of counsel or counsel’s staff). For a district court to do so would be an abuse of discretion.

The mistake among all of Pratt’s counsel cannot be characterized as unique or extraordinary. Instead of expressly clarifying the responsibility of each attorney, each of Pratt’s five attorneys apparently assumed that one of the other four would file a timely notice of appeal. No one checked to ensure that a notice of appeal was filed when the deadline approached. To find excusable neglect on these facts would be to run roughshod over our existing precedent and the purpose of Rule 4(a). We refuse to do that and therefore hold that the district court abused its discretion in determining there was excusable neglect.

In reaching this conclusion, we expressly reject Pratt’s arguments that this case falls outside the general principles governing excusable neglect. First, Pratt argues that the excusable neglect standard has two prongs requiring the court to “consider both (1) whether the neglect is excusable and (2) whether a denial of an extension of time to file a notice of appeal would create injustice.” Conceding, as he must, that his counsel’s neglect is not “excusable” under this test, Pratt focuses on the “injustice” of refusing to consider the merits of his collateral attack on his murder, robbery, and assault convictions.

Pratt’s argument, however, miscasts our interpretation of “excusable neglect.” As previously discussed, the standard only allows an extension of time in[*593] extraordinary circumstances where injustice would otherwise result. Alaska Limestone, 799 F.2d at 1411; Islamic Republic, 739 F.2d at 465; Meza, 683 F.2d at 315; Champion International, 680 F.2d at 1301. Thus, we require both extraordinary circumstances preventing a timely filing and injustice resulting from denying the appeal. See Islamic Republic, 739 F.2d at 465. Even illness of counsel does not amount to an “extraordinary circumstance” preventing a timely filing of appeal unless “the illness is so physically and mentally disabling that counsel is unable to file the appeal and is not reasonably capable of communicating to co-counsel his inability to file.” Id. In the present case, Pratt does not allege any extraordinary circumstances that prevented the timely filing of his notice of appeal. Prattfs “injustice” argument does not and cannot overcome this absence of extraordinary circumstances.

Second, Pratt argues that we should not strictly construe “excusable neglect” in habeas corpus cases. Pratt cites no authority for this proposition, and we reject Pratt’s suggestion that we modify our interpretation of excusable neglect under Rule 4(a)(5). We have, in fact, strictly construed the requirements of Rule 4 even in habeas corpus cases filed by pro se prisoners. Malone v. Avenenti, 850 F.2d 569, 571 (9th Cir.1988); Pettibone, 666 F.2d at 335. Our strict interpretation of excusable neglect promotes Rule 4(a)’s purpose of setting a definite point of time when litigation shall end, while recognizing certain extraordinary situations that prevent a late filing of a notice of appeal. A habeas corpus petition does not, per se, create an extraordinary situation. Any exception for habeas corpus cases must be made through amendment of the rule, not by judicial decision. Cf. Robinson, 361 U.S. at 229, 80 S.Ct. at 288 (recognizing that relaxing the period for taking a criminal appeal must be achieved “through the rule-making process and not by judicial decision”).

Third, Pratt argues that we should find excusable neglect in his case because his habeas corpus petition alleges “extraordinary federal government involvement” in violation of the Constitution. In support of this argument, Pratt’s attorney Hanlon has filed an affidavit stating that Pratt’s case has received attention on television and in newspapers and thus, “[wjhether or not this Court or the public believes that Mr. Pratt was denied a fair trial, it is mandatory that a public case such as Mr. Pratt’s be decided on the merits and not on the technical error of counsel.”

We are unpersuaded. By definition, nearly every prisoner’s habeas corpus petition will allege governmental involvement in violation of the Constitution or federal law. We conclude it would be inappropriate to predicate a theory of excuse based on the extent of alleged governmental involvement.

Pratt’s suggestion that our decision should be influenced by the extent of publicity surrounding a given case is troublesome. It is a startling contention that we should compromise our judicial integrity by deciding a case over which we have no jurisdiction merely because it has received extensive media coverage. Pratt’s argument that a court should violate its duty to decide cases dispassionately and in accordance with the law merely because of heightened public curiosity is rejected.

Finally, Pratt argues that we should deviate from our court’s precedent mandating strict interpretation of excusable neglect. To support this argument, he cites Consolidated Freightways Corp. v. Larson, 827 F.2d 916 (3d Cir.1987) (Consolidated Freightways), and observes that the Third Circuit criticized our analysis of excusable neglect that we announced in Champion International and Alaska Limestone. Id. at 918-19.

Clearly, this argument must be rejected. Only an en banc court has the power to reject our precedent. Moreover, we do not believe that Consolidated Freightways assists Pratt. In Consolidated Freightways, the notice of appeal was not timely filed because counsel addressed the notice to the wrong court. The Third Circuit found this excusable, thereby disagreeing with our conclusion in Champion [*594] International. Id. at 919. We seriously doubt, however, that the Third Circuit would find excusable neglect on the facts before us. See id. (counsel’s failure to arrange coverage during an attorney’s vacation which encompassed the end of the appeal period is not excusable).

Ill

Simply put, under the mandate of our cases, counsels’ conduct here was inexcusable. Because the district court abused its discretion in concluding that Pratt demonstrated excusable neglect for his failure to file a timely notice of appeal, Pratt’s notice of appeal was untimely. Thus, we lack jurisdiction to decide the merits and dismiss the appeal.

APPEAL DISMISSED.