                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           OCT 5 2001
                          FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk
    WYOMING OUTFITTERS
    ASSOCIATION, doing business as
    Wyoming Outfitters and Guides
    Association; JIM ALLEN; TIM
    TREFREN; JOHN WINTER;
    BOBBI WADE; VINCE VAN
    ROEGEN; KIM R. CARRARA;
    WALTER LEE JONES; CRAIG
    ARTMAN; CRAIG LARSEN,

              Plaintiffs-Appellants,

    v.                                            Nos. 00-8066 & 00-8078
                                                  (D.C. No. 98-CV-1027-J)
    WYOMING GAME AND FISH                                (D. Wyo.)
    COMMISSION; HAL CORBELT;
    LEE HENDERSON; TRACY
    HUNT; L. GARY LUNDUALL;
    J. MICHAEL POWERS; MIKE
    HUNZIE; JOHN BAUGHMAN,

              Defendants-Appellees,


    WYOMING WILDLIFE
    FEDERATION,

              Intervenor-Appellee.


                           ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
                                                                       (continued...)
Before HENRY , PORFILIO , and MURPHY , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Plaintiffs challenge Wyoming’s hunting licensing system under various

provisions of the federal constitution. On July 5, 2000, the district court entered

summary judgment in favor of the state. Under Fed. R. App. P. 4(a)(1)(A),

plaintiffs had until August 5, 2000 to file a notice of appeal. By the close of

business on August 5, no such notice had been filed.

       More than two weeks later, on August 22, 2000, plaintiffs filed a notice

of appeal accompanied by a motion for an extension of time. After a hearing

on the motion, the district court denied the request for an extension, finding

that plaintiffs did not make a showing of “excusable neglect” as required by

Fed. R. App. P. 4(a)(5) (allowing a district court to extend the time to file a notice




*
 (...continued)
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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of appeal, provided the party so moves within thirty days after the notice was due

and shows excusable neglect or good cause). Plaintiffs appeal. We affirm.   1



      The Supreme Court has directed that in determining what constitutes

excusable neglect, a court must “tak[e] account of all relevant circumstances

surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. Partnership, 507 U.S. 380, 395 (1993). The Court has pointed to four

factors that are relevant in determining whether to find excusable neglect: 1) the

danger of unfair prejudice to the nonmoving party; 2) the length of the delay and

its potential impact on judicial proceedings; 3) the reason for the delay, including

whether it was within the reasonable control of the movant; and 4) whether the

movant acted in good faith. Id.; see City of Chanute v. Williams Natural Gas

Co., 31 F.3d 1041, 1046 (10th Cir. 1994).

      We review the district court’s determination of the presence or absence of

excusable neglect based on an abuse of discretion. City of Chanute, 31 F.3d at

1046. “The real question here is not whether we would have found . . . excusable

neglect but rather whether we should second-guess the trial judge’s




1
      The notice of appeal stemming from the underlying appeal is docketed as
No. 00-8066. Plaintiffs’ appeal from the district court’s denial of the motion for
an extension of time is docketed at No. 00-8078. This court consolidated the
appeals for purposes of briefing.

                                          -3-
decision . . . .” Varhol v. Nat’l R.R. Passenger Corp., 909 F.2d 1557, 1564

(7th Cir. 1990) (per curiam) (en banc).

      Based on the record before us, we find nothing to suggest that the district

court abused its discretion. Renewing the arguments he pressed in his motion for

an extension of time, plaintiffs’ counsel first states that in the month following

the district court’s grant of summary judgment, counsel was in the midst of a

rigorous treatment of physical therapy. The treatment was necessary as a result

of injuries counsel sustained in a 1999 car accident. We have no doubt that the

treatment was painful and time-consuming, but we agree with the district court

that counsel was not so physically or mentally disabled that he was unable to file

the notice of appeal. We note in particular that counsel was apparently able to

perform various duties related to his extensive pro bono practice, yet was unable,

he says, to file a notice of appeal in this case.

      Similarly, we reject counsel’s invitation to excuse his untimely notice of

appeal in recognition of his impressive pro bono commitment. While it is no

doubt important for lawyers to engage in public service, we have never intimated

that a deadline, especially one as significant as that contained in Fed. R. App. P.

4(a), can be excused merely because the offending lawyer has a laudable pro

bono practice. Finally, we agree with the district court that the difficulties

related to counsel’s inability to secure competent secretarial service, the upheaval


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caused by his withdrawal from his former law firm, and the communication

problems posed by his clients’ treks into the wilderness do not provide, either

alone or in the aggregate, a basis for a finding of excusable neglect.

      Because we conclude that the district court did not abuse its discretion in

denying plaintiffs’ request for an extension of time, we lack appellate jurisdiction

to reach the merits of the underlying appeal. We therefore DISMISS appeal No.

00-8066; with respect to appeal No. 00-8078, we AFFIRM the order of the

district court denying plaintiffs’ motion for an extension of time.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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