                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 13 2002
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    MIGUEL M. RIOS and CORINA
    RIOS, husband and wife, and as
    parents and next friends of Ami and
    Roxanne Rios, minor children,
                                                       No. 02-2032
                Plaintiffs,                  (D.C. No. CIV-00-68 KBM/LCS)
                                                        (D. N.M.)
    v.

    UNITED STATES DEPARTMENT
    OF JUSTICE, ex rel United States;
    UNITED STATES DEPARTMENT
    OF IMMIGRATION AND
    NATURALIZATION SERVICE;
    UNITED STATES BORDER
    PATROL,

                Defendants-Appellees.


    JOSE L. ARRIETA,

                Movant-Appellant.


                              ORDER AND JUDGMENT        *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.


*
      This order and judgment is not binding precedent, except under the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
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Jose L. Arrieta appeals from the magistrate judge’s denial of his motion for

an extension of time to file an appeal.    1
                                               Exercising jurisdiction pursuant to

28 U.S.C. § 636(c)(3) and § 1291,     2
                                          we conclude that the magistrate judge failed to

apply the appropriate legal standard and accordingly reverse.

       Attorney Arrieta was disbarred in the state of New Mexico and

subsequently placed on supervisory probation for one year, during which time he

was prohibited from practicing law as a sole practitioner. Nonetheless, during

this probationary period, Arrieta entered his appearance as counsel for plaintiffs

in the underlying civil rights suit. He then applied for admission to the district

court bar. Rejecting the application, the clerk advised Arrieta that he could apply

for admission only after his probationary period with the state bar ended. In

response to Arrieta’s subsequent challenge to that decision, the clerk informed

him that the district court judges unanimously voted to uphold Arietta’s

suspension until the probationary period ended.




1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
      The parties in the underlying case consented to proceed before the
magistrate judge, pursuant to 28 U.S.C. § 636(c). Jenkins v. City of Topeka , 136
F.3d 1274, 1275 n.1 (10th Cir. 1998).

                                               -2-
       Consequently, in an order dated March 14, 2001 (March Order), the

magistrate judge presiding over the underlying civil rights suit removed Arrieta

from the case. This order made findings regarding not only Arrieta’s

representation in the underlying case, but also his involvement in other pending

federal district court cases.   In addition, the magistrate judge directed that a copy

of the March Order be sent to the state disciplinary board.

       Arrieta sought an interlocutory appeal from the March Order in this Court.

Expressing doubts regarding appellate jurisdiction, we requested that the parties

file supplemental briefs in June of 2001. In his supplemental brief, Arrieta cited

Cohen v. Beneficial Industrial Loan Corp.      , 337 U.S. 541 (1949), to argue that his

appeal fell within the collateral order doctrine. We dismissed the appeal on

November 13, 2001, concluding that Arrieta had to wait until the district court

issued a final order before he could appeal the March Order.      Arrieta claims that

he received a copy of this dismissal order on November 20, 2001.

       While the interlocutory appeal was pending, the magistrate judge issued a

final order in the underlying case on September 18, 2001. Arrieta failed to file

his notice of appeal within sixty days of this date as required under Federal Rule

of Appellate Procedure 4(a)(1)(B).    3
                                          On November 30, 2001, ten days after he


3
      Counsel erroneously states that the time for taking an appeal was thirty
days under Federal Rule of Appellate Procedure 4(a)(1)(A). Because the United
                                                                     (continued...)

                                             -3-
allegedly received notice of the dismissal of his interlocutory appeal, Arietta filed

a motion for an extension of time on the basis of excusable neglect pursuant to

Federal Rule of Appellate Procedure 4(a)(5). The magistrate judge’s denial of

this motion constitutes the subject of the present appeal.

       We review the district court’s determination of a Rule 4(a)(5) motion for

abuse of discretion.   Romero v. Peterson , 930 F.2d 1502, 1505 (10th Cir. 1991).

Failure to apply the correct legal standard in ruling on a motion constitutes an

abuse of discretion.   Ohlander v. Larson , 114 F.3d 1531, 1537 (10th Cir. 1997)

(“A clear example of an abuse of discretion exists where the trial court fails to

consider the applicable legal standard . . . .”).

       Federal Rule of Appellate Procedure 4(a)(5) provides that the district court

may extend the time for taking an appeal if the party seeking to appeal (1) moves

for an extension no later than thirty days after the time for taking an appeal has

expired, and (2) demonstrates either excusable neglect or good cause for failing to

appeal in a timely manner. Fed. R. App. P. 4(a)(5);    City of Chanute v. Williams


3
 (...continued)
States was a party to the underlying action, however, Federal Rule of Appellate
Procedure 4(a)(1)(B) applies and Arrieta had sixty days to file, even though the
government was not a party to the appeal.       In re O’Bryan , 399 F.2d 916, 918 (10th
Cir. 1968) (“The test as to the application of the 60 day period is not whether the
United States might be concerned or interested in the final judgment, but whether
it is a party to the action in which the judgment was entered.”);    see also Lonberg
v. Sanborn Theaters Inc. , 259 F.3d 1029, 1031 (9th Cir. 2001) (“It is of no
moment that the United States is not a party to the appeal in question.”).

                                           -4-
Natural Gas Co. , 31 F.3d 1041, 1045 (10th Cir. 1994). Despite the clear language

of this provision, however, the magistrate judge did not render a determination on

the issues of excusable neglect or good cause. During the hearing, Arrieta

presented the chronology of events set out above to argue that his failure to file a

timely appeal was excusable. In the oral ruling, the magistrate judge’s only

response to this argument suggests that in fact, she was inclined to find that

excusable neglect existed. (Appellant’s App. at 32 (“I’ll tell you, I mean, he

makes a good point with regard to — as far as neglect in making a timely

appeal.”).) Nevertheless, focusing on the relationship between the appeal and the

underlying suit, the magistrate judge denied the motion, finding that “[t]he

jurisdictional basis that really served as the premise for [Arietta’s] case no longer

exists.” Id. at 37. Thus, the decision was based not on the absence of excusable

neglect (for which we intend no opinion on the merits), but rather on the

magistrate judge’s conclusion that appellate jurisdiction was lacking, a matter

reserved to the appellate court to determine.      Fed. R. App. P. 3(a)(2) (“An

appellant’s failure to take any step other than the timely filing of a notice of

appeal does not affect the validity of the appeal, but is ground only for the court

of appeals to act as it considers appropriate, including dismissing the appeal.”).

       Because the magistrate judge failed to apply the excusable neglect standard,

her ruling constituted an abuse of discretion.     Accordingly, the denial of Arrieta’s


                                             -5-
motion for an extension of time is REVERSED, and this case is REMANDED for

a proper determination of excusable neglect under the applicable standard. The

mandate shall issue forthwith.


                                             Entered for the Court



                                             Carlos F. Lucero
                                             Circuit Judge




                                       -6-
