                     United States Court of Appeals,

                            Eleventh Circuit.

                                 No. 95-4834

                         Non-Argument Calendar.

    ADVANCED ESTIMATING SYSTEM, INC., a Florida Corporation,
Plaintiff-Counter-Defendant-Appellee,

                                      v.

Timothy J. RINEY, Damon, Inc., a Florida Corporation, Defendants-
Counter-Claimants-Appellants,

                Leon V. Cursons, Counter-Defendant,

  John Wagner Associates, Inc., a California Corporation d/b/a
Grabber d/b/a Mike Anderson, Third-Party-Plaintiff.

                               March 19, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 91-8378-CIV-KLR), Kelleth L. Ryskamp,
Judge.

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

     PER CURIAM:

     This   appeal    arises   from   a    final   judgment   in   a   software

infringement case entered in favor of the appellee, Advanced

Estimating Systems, Inc., against the appellants, Timothy Riney and

Damon, Inc.    The appellants appeal from the district court's

decision denying their Rule 4(a)(5) motion for an extension of time

to file notice of appeal.

                                      I.

     The district court, following a jury trial, entered final

judgment against the appellants, who were the defendants in that

court.    Following the entry of final judgment in favor of the

plaintiff, the appellants had thirty days to file a notice of

appeal.   Fed.R.App.P. 4(a)(4);        Campbell v. Wainwright, 726 F.2d
702, 703 (11th Cir.1984).    The appellants failed to file their

notice of appeal within the allotted 30 days;   instead they filed

an untimely notice of appeal over three weeks late. Upon realizing

the notice was late, the appellants moved the district court for a

Rule 4(a)(5) extension of time to file notice of appeal.    Before

the district court ruled on the appellants' motion for extension,

this Court held that the appellants' notice of appeal had been

untimely and remanded the case for the district court to determine

whether "excusable neglect" was present, within the meaning of

Federal Rule of Appellate Procedure 4(a)(5).

     After holding a hearing, following remand, the district court

decided that the appellants' failure to file a timely notice of

appeal was not the result of excusable neglect, and for that reason

denied their motion for extension of time to file the appeal.   In

making that decision, the district court applied the "unique

circumstances" standard for determining excusable neglect, see,

e.g., Borio v. Coastal Marine Const. Co., 881 F.2d 1053, 1055 (11th

Cir.1989).   The appellants filed a timely appeal of the order

denying their motion for extension of time to file an appeal.

Their principal contention is that the district court erred in not

applying the excusable neglect standard and analysis that was

announced in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

We agree.

                               II.

      The Supreme Court has emphasized that the timely filing of a

notice of appeal is "mandatory and jurisdictional."      Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400,

403, 74 L.Ed.2d 225 (1982).       If the notice is not timely filed, the

appellate court is without jurisdiction to hear the appeal. Pinion

v. Dow Chem., U.S.A., 928 F.2d 1522, 1525 (11th Cir.), cert.

denied, 502 U.S. 968, 112 S.Ct. 438, 116 L.Ed.2d 457 (1991).

However, a district court is permitted to extend the time for

filing   an   appeal   if   the   party   seeking   the   extension   shows

"excusable neglect." Fed.R.App.P. 4(a)(5). The appellants contend

that there was excusable neglect in this case because appellants'

counsel erroneously believed that the period for filing an appeal

had been tolled.

      Appellants' counsel believed that his filing of Rule 59 and

60 motions had tolled the time for filing the notice of appeal.

Despite the thirty-day time restriction mandated by Rule 4, the

running of the appeal period may be tolled by filing one of the

motions listed in Rule 4, including a Rule 59 or 60 motion.            Only

if such a motion is filed timely, however, will it successfully

suspend the appeal period. Fed.R.App.P. 4(a)(4). Untimely motions

under Rules 59 and 60 will not toll the time for filing an appeal.

Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.1980).         Rule 59 and

60 motions are timely if filed within 10 days of entry of final

judgment.     Fed.R.Civ.P. 59(b) (a motion for new trial shall be

served not later than ten days after the entry of judgment);

Fed.R.App.P. 4(a)(4)(F) (a Rule 60 motion will suspend the period

of appeal if the motion is served within ten days after the entry

of judgment).    The appellants filed their Rule 59 and 60 motions
twelve business days after entry of judgment.1                           Accordingly, as

appellants' concede, their Rule 59 and 60 motions were untimely and

thus did not extend the time for filing a notice of appeal.

      Although it is clear that appellants' Rule 59 and 60 motions

were untimely and thus do not change the late status of appellants'

notice of appeal, it is not clear that appellants' counsel's belief

to the contrary does not constitute excusable neglect under Rule

4(a)(5).      The      Supreme   Court       recently    established            a   flexible

analysis of excusable neglect.                In     Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489,

123   L.Ed.2d     74    (1993),    the       Court    held        that    an    attorney's

inadvertent     failure     to   file    a    proof     of    claim       can   constitute

excusable neglect under Bankruptcy Rule 9006(b)(1). Id. at 382-84,

113 S.Ct. at 1492.         Interpreting the plain meaning of the phrase

"excusable      neglect,"    the    Court       concluded,          "Congress       plainly

contemplated      that     the     courts      would         be    permitted,         [when]

appropriate,     to     accept    late    filings       caused       by    inadvertence,

mistake, or carelessness, as well as by intervening circumstances

beyond the party's control."             Id. at 388, 113 S.Ct. at 1495.

      In clarifying the meaning of excusable neglect as that term is

used in Bankruptcy Rule 9006(b)(1), the Supreme Court reviewed the

meaning of the term in the context of non-Bankruptcy Rules that

      1
      Appellants' counsel filed these motions late because he
erroneously calendared his deadline for filing the motions based
on the date counsel received the court's order, instead of the
date the order was actually entered on the docket. See
Fed.R.Civ.P. 59(b) (motion for new trial shall be served not
later than ten days after the entry of judgment); Fed.R.App.P.
4(a)(4)(F) (Rule 60 motion must be filed within ten days of entry
of judgment in order to affect time for filing a notice of
appeal).
allow for late filings.       Id. at 391-94 & 392 n. 9, 113 S.Ct. at

1496-97 & 1496 n. 9 (discussing Federal Rules of Civil Procedure

6(b), 13(f), and 60(b)(1) and (6) and Federal Rule of Criminal

Procedure   45(b)).     The   Court's   analysis   of   what   constitutes

excusable neglect for purposes of Rule 9006(b)(1) rested on the

plain meaning of the term, and consideration of the same term in

the context of both the Bankruptcy Rules and the Federal Rules of

Civil Procedure.      There is no reason that the meaning would be

different in the context of Federal Rule of Appellate Procedure

4(a)(5), and one of our recent decisions indicates that it is not.

      In Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th

Cir.1996), we applied Pioneer to the meaning of excusable neglect

as used in Federal Rule of Civil Procedure 60(b).              There is no

reason why Pioneer's excusable neglect analysis would apply to the

term as used in Rule 60(b) but not as used in Federal Rule of

Appellate Procedure 4(a)(5).      We hold that Pioneer does apply to

determinations of excusable neglect within the meaning of Rule

4(a)(5).    Our holding is consistent with that of every other

circuit to consider this precise issue or the same issue involving

the excusable neglect provision of Federal Rule of Appellate

Procedure 4(b) (which applies to appeals in criminal cases).           See

United States v. Clark, 51 F.3d 42, 44 (5th Cir.1995) ("We agree

... that Pioneer controls determinations of excusable neglect under

Rule 4(b).");   Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d

451, 454 n. 3 (1st Cir.1995) ("We agree with the Tenth Circuit that

Pioneer's exposition of excusable neglect, though made in the

context of late bankruptcy filings, applies equally to Fed.R.App.P.
4(a)(5)."); Reynolds v. Wagner, 55 F.3d 1426, 1429 (9th Cir.) ("We

are persuaded that "excusable neglect' in the context of Rule

4(a)(5)    has   the   same   meaning    as   the   Supreme   Court   recently

determined in the Bankruptcy Rules context."), cert. denied, ---

U.S. ----, 116 S.Ct. 339, 133 L.Ed.2d 237 (1995);              Fink v. Union

Central Life Ins. Co., 65 F.3d 722, 724 (8th Cir.1995) ("We believe

the   Pioneer    interpretation     of     excusable    neglect    under   the

Bankruptcy Rules also applies when interpreting excusable neglect

under Federal Rule of Appellate Procedure 4(a)(5).");                  Candela

Laser Corp. v. Cynosure, Inc., 43 F.3d 1485, 1994 WL 702194, *2

(Fed.Cir.1994) (unpublished opinion) (applying Pioneer excusable

neglect analysis to Rule 4(a)(5) excusable neglect);                  City of

Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th

Cir.1994)   ("Because     the   Court's    analysis    of   what   constitutes

"excusable neglect' in the bankruptcy context rested on the plain

meaning of the terms, there is no reason that the meaning would be

different in the context of Fed.R.App.P. 4(a)(5)."), cert. denied,

--- U.S. ----, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995);                 United

States v. Hooper, 9 F.3d 257, 259 (2d Cir.1993) ("Pioneer thus

controls the resolution ... of "excusable neglect' under Rule

4(b).");    cf. Jackson v. Hoylman, 12 F.3d 212, 1993 WL 501591, *5

(6th Cir.1993) (unpublished opinion) (applying Pioneer excusable

neglect analysis to Rule 6(b)).

                                    III.

      In Pioneer, the Supreme Court held that when analyzing a claim

of excusable neglect, courts should "tak[e] account of all relevant

circumstances surrounding the party's omission," including "the
danger of prejudice to the [nonmovant], the length of the delay and

its potential impact on judicial proceedings, the reason for the

delay, including whether it was within the reasonable control of

the movant, and whether the movant acted in good faith."       Id. at

395, 113 S.Ct. at 1498.     Primary importance should be accorded to

the absence of prejudice to the nonmoving party and to the interest

of efficient judicial administration.    Cheney, 71 F.3d at 850.     To

the extent that our past decisions interpreting excusable neglect

apply an unduly strict standard in conflict with Pioneer, they are

no longer controlling precedent.

       Although we review excusable neglect decisions only for an

abuse of discretion, application of an incorrect legal standard is

an abuse of discretion.    Cheney, 71 F.3d at 849 n. 2.   By applying

the "unique circumstances" standard of excusable neglect, which it

construed as not being satisfied by "mere palpable mistake or

administrative failure of counsel or counsel's staff," instead of

the more forgiving Pioneer standard, the district court erred.

       The appellants urge us to apply the Pioneer standard in the

first instance, and Cheney establishes that we can do so, at least

in   some cases.   However, nothing about      Pioneer    changed   the

excusable neglect decision into a mechanical one devoid of any room

for the exercise of discretionary judgment.    See Pioneer, 507 U.S.

at 392, 113 S.Ct. at 1496 (" "excusable neglect' ... is a somewhat

"elastic concept' ").     Accordingly, the district court will often

have some range of choice in deciding excusable neglect issues.

See United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989) ("the

abuse of discretion standard allows "a range of choice for the
district court, so long as that choice does not constitute a clear

error of judgment").   In view of that, and under the circumstances

of this case, we prefer to remand this case to the district court

in order to give it the first opportunity to decide the excusable

neglect issue, under the legal standard of Pioneer, as applied in

Cheney.   See Macklin v. Singletary,    24 F.3d 1307, 1311 (11th

Cir.1994) ("We should be more reluctant to address initially an

issue that is subject to an abuse of discretion standard of review

than an issue subject to a de novo standard of review."), cert.

denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).

                                IV.

     We VACATE the district court's order denying the appellants'

Rule 4(a)(5) motion and REMAND the case to the district court for

further proceedings consistent with this opinion.
