               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


THEODORE WASHINGTON,                    No. 05-99009
          Petitioner-Appellant,
                                         D.C. No.
               v.                    CV-95-02460-JAT

CHARLES L. RYAN,
           Respondent-Appellee.



THEODORE WASHINGTON,                    No. 07-15536
          Petitioner-Appellant,
                                         D.C. No.
               v.                    CV-95-02460-JAT

CHARLES L. RYAN,
           Respondent-Appellee.          OPINION


     Appeal from the United States District Court
              for the District of Arizona
  James A. Teilborg, Senior District Judge, Presiding

    Argued and Submitted En Banc March 22, 2016
              San Francisco, California

                Filed August 15, 2016
2                WASHINGTON V. RYAN

 Before: Sidney R. Thomas, Chief Judge and William A.
Fletcher, Johnnie B. Rawlinson, Richard R. Clifton, Jay S.
 Bybee, Consuelo M. Callahan, Carlos T. Bea, Milan D.
 Smith, Jr., Sandra S. Ikuta, Morgan Christen and Paul J.
                 Watford, Circuit Judges.

               Opinion by Judge Christen;
                Dissent by Judge Bybee;
               Dissent by Judge Watford
                      WASHINGTON V. RYAN                              3

                           SUMMARY*


           Habeas Corpus / Fed. R. App. P. 4(a) /
                   Fed. R. Civ P. 60(b)

    In appeal No. 07-15536, the en banc court reversed the
district court’s order denying Arizona death row inmate
Theodore Washington’s motion under Fed. Civ. P. 60(b) to
vacate and renter its judgment denying his 28 U.S.C. § 2254
habeas corpus petition so that his appeal could be timely, and
remanded for the district court to vacate and reenter its
judgment nunc pro tunc as of June 9, 2005, in a case in which
Washington filed a notice of appeal one day beyond the 30-
day window set forth in Fed. R. App. P. 4(a)(1) and did not
request an extension until well after the grace period expired.

    The en banc court rejected the State of Arizona’s
argument that the district court lacked authority to vacate its
judgment and that this court is without jurisdiction to hear the
appeal. Having considered the interests of finality, the danger
of prejudice to the State, that Washington missed the filing
deadline by just one day, and the absence of any indication of
bad faith by his lawyers, the en banc court concluded that
relief was required under Rule 60(b)(1) or, alternatively, Rule
60(b)(6).

    The en banc court wrote that after the district court
reenters its judgment, Washington’s appeal from the denial of
his § 2254 petition may proceed in appeal No. 05-99009.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                  WASHINGTON V. RYAN

    Judge Bybee, joined by Judges Callahan, Bea, Ikuta, and
Watford, dissented. He wrote that the majority ignores the
holding in Bowles v. Russell, 551 U.S. 205 (2007), that the
FRAP timely filing requirements are mandatory and
jurisdictional, by shoehorning an essentially equitable
exception to the jurisdictional requirements of Fed. R. App.
P. 4(a) into Rule 60(b).

    Judge Watford also dissented because Bowles held that
the filing deadline for civil appeals is jurisdictional and thus
not subject to equitable exceptions. He offered thoughts as to
why the Bowles holding is worth revisiting, should the
Supreme Court decide to take up the issue.


                         COUNSEL

Gilbert H. Levy (argued), Law Offices of Gilbert H. Levy,
Seattle, Washington, for Petitioner-Appellant.

Laura Chiasson (argued), Assistant Attorney General; Terry
Goddard, Attorney General; Office of the Arizona Attorney
General, Tucson, Arizona; for Respondent-Appellee.

Nathaniel C. Love (argued), Sidley Austin LLP, Chicago,
Illinois; Mark E. Haddad, Sidley Austin LLP, Los Angeles,
California; David M. Porter, Co-Chair, NACDL Amicus
Committee; for Amicus Curiae National Association of
Criminal Defense Lawyers.
                   WASHINGTON V. RYAN                        5

                         OPINION

CHRISTEN, Circuit Judge:

     Theodore Washington, an Arizona death row inmate, filed
a notice of appeal (“NOA”) thirty-one days after the district
court denied his petition for writ of habeas corpus. Federal
Rule of Appellate Procedure 4(a)(1) limited the window for
filing this notice to just thirty days, but the rules also
provided a grace period for requesting an extension of time.
Due to a combination of circumstances—including an error
by the court—Washington did not request an extension
because he did not learn that his NOA was one business day
late until well after the grace period expired. Washington
filed a motion under Federal Rule of Civil Procedure 60(b)
asking the district court to vacate and reenter its judgment so
that his appeal could be deemed timely. The district court
denied his request, and he appeals.

    The State argues that the district court lacked the
authority to vacate and reenter its judgment, and that our
court is without jurisdiction to consider Washington’s appeal.
We disagree.

    The filing deadline in Rule 4(a)(1) is mandatory and
jurisdictional, but from their inception, the rules have also
given district courts authority to grant relief from judgment.
This is a death penalty case and we are mindful that both of
Washington’s co-defendants received relief from their death
sentences. Dismissal of Washington’s appeal would prevent
any appellate review of the denial of his potentially
meritorious habeas petition, yet it was a court error that
prevented Washington from seeking an extension of time
expressly allowed by the Rules.             Therefore, having
6                  WASHINGTON V. RYAN

considered the interests of finality, the danger of prejudice to
the State, that Washington missed the filing deadline by just
one day, and the absence of any indication of bad faith by his
lawyers, we conclude that relief was required under Rule
60(b)(1) or, alternatively, 60(b)(6). We reverse the district
court’s order and remand for the district court to vacate and
reenter its judgment nunc pro tunc as of June 9, 2005. Once
judgment is reentered, Washington’s appeal from the denial
of his petition for writ of habeas corpus will be timely and
may be considered on its merits.

                      BACKGROUND

    Washington is one of three co-defendants who were
convicted in 1987 of first degree murder and other offenses
after two of them entered a home and robbed and shot its
occupants. State v. Robinson, 796 P.2d 853, 856–58 (Ariz.
1990). All three defendants were sentenced to death. One of
them, James Mathers, prevailed on direct appeal when the
Arizona Supreme Court ruled that there was insufficient
evidence to support his conviction. See State v. Mathers,
796 P.2d 866, 873 (Ariz. 1990) (In Banc). The second co-
defendant, Fred Robinson, argued in his federal habeas
petition that the state trial court’s application of a “cruel,
heinous, and depraved” sentencing enhancement was
arbitrary and capricious, and that counsel was ineffective at
the penalty phase of the defendants’ joint trial. See Robinson
v. Schriro, 595 F.3d 1086, 1110–12 (9th Cir. 2010).
Robinson was granted relief on habeas review, see id. at
1113, and on remand the state trial court resentenced him to
sixty-seven years to life, see Judgment and Sentence, Case
No. S1400CR87-14064 (Yuma Cty., Ariz., Oct. 25, 2011).
                   WASHINGTON V. RYAN                          7

     Washington’s case initially took the same procedural path
as Robinson’s. The Arizona Supreme Court affirmed
Washington’s conviction on direct appeal. State v. Robinson,
796 P.2d at 856. Washington filed a petition for post-
conviction relief in the state trial court, which remarked that
it had “a great deal of difficulty finding a basis to hold this
defendant culpable which does not apply, at least equally or
in a greater manner, to James Mathers [the co-defendant
whose conviction the Arizona Supreme Court overturned for
insufficient evidence]. If Mathers, who was present at all
times before the entry into the . . . [victim’s] residence, was
not guilty of conspiring to rob and kill, no greater evidence
seems to place this defendant at the scene.” Nevertheless, the
court denied Washington’s petition, and the Arizona Supreme
Court summarily denied his petition for review. Washington
then filed a federal habeas corpus petition in the District of
Arizona. Like Robinson, Washington argued that the state
trial court erred by imposing a “cruel, heinous, and depraved”
sentencing enhancement, and that he received constitutionally
ineffective assistance of counsel during the penalty phase of
his trial. Despite these similarities, the course of these cases
sharply diverged on federal habeas review.

    The district court’s denial of Washington’s federal habeas
petition became final on June 8, 2005, but the court did not
indicate whether it would grant a certificate of appealability
(“COA”). Washington had thirty days to file a NOA, see
Fed. R. App. P. 4(a)(1), and the thirtieth day after the district
court entered its judgment was Friday, July 8, 2005. Due to
a calendaring error by Washington’s lawyers, his NOA and
motion for a COA were filed on Monday, July 11, 2005, one
business day after Rule 4(a)(1)’s filing deadline. The Federal
Rules anticipate late filings: Rule 4(a)(5) provides a thirty-
day grace period within which parties may request more time
8                  WASHINGTON V. RYAN

to file a NOA upon a showing of good cause or excusable
neglect. See Fed. R. App. P. 4(a)(5). Washington had plenty
of time to file a motion seeking additional time under Rule
4(a)(5), but due to a court error, he did not receive notice that
his NOA was late, so he did not know that he needed an
extension of time.

    Two circumstances aligned to prevent Washington from
learning that his NOA was late within the thirty-day period
allowed to seek an extension. First, there were no filings in
the district court case, and no entries on the district court
docket, for over two and a half months after the NOA was
filed. Nothing happened that would have prompted
Washington’s lawyers to recalculate the Rule 4(a)(1)
deadline, so nothing short of spontaneously recalculating its
due date would have put Washington’s lawyers on notice of
their calendaring error. Second, the district court clerk’s
office did not promptly send Washington’s late-filed NOA to
the appellate clerk, despite an express directive that it do so.
In 2005, Federal Rule of Appellate Procedure 3(d) required
the district clerk to “promptly send a copy of the notice of
appeal” to the appellate clerk. Fed. R. App. P. 3(d). For
reasons not apparent from the record, the district clerk did not
comply with this rule. Rather, the clerk waited for the district
court to rule on Washington’s motion for a COA before
sending the NOA to the appellate court. The district court
ruled on the motion for a COA on September 30, over two
and a half months after it was filed; the clerk then sent the
NOA on to the appellate court; and a week after receiving it,
the appellate clerk issued an order to show cause why
Washington’s appeal should not be dismissed as untimely.
By then it was too late to seek an extension of time under
Rule 4(a)(5), but within six days Washington filed a motion
under Rule 60(b) asking the district court to vacate and
                   WASHINGTON V. RYAN                        9

reenter its judgment so that his appeal could be decided on
the merits.

    Washington’s motion was premised on Federal Rule of
Civil Procedure 60(b)(1) or, alternatively, Rule 60(b)(6). He
asked the district court to vacate and reenter its judgment
denying his habeas petition either: (1) as of June 9, 2005,
thereby rendering his original appeal timely; or
(2) immediately, thereby triggering a new thirty-day filing
window pursuant to Rule 4(a)(1). The district court
concluded that it did not have authority to grant the requested
relief, and it denied the motion. The court also reasoned that
Washington’s case did not qualify for relief under Rule
60(b)(1) or 60(b)(6).

    Washington separately appealed the district court’s order
denying his Rule 60(b) motion. A three-judge panel of our
court considered Washington’s appeal from the denial of his
habeas petition (appeal No. 05-99009) and his appeal from
the denial of his Rule 60(b) motion (appeal No. 07-15536).
The panel concluded that it lacked jurisdiction to consider
Washington’s appeal from the denial of his habeas petition
because his NOA was filed one day late. Washington v.
Ryan, 789 F.3d 1041, 1045 (9th Cir. 2015). The panel also
affirmed the district court’s denial of Washington’s Rule
60(b) motion. Id. at 1046.

    Our court granted rehearing en banc. Washington v.
Ryan, 811 F.3d 299 (9th Cir. 2015) (mem.). We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and
we reverse the district court’s denial of Washington’s Rule
60(b) motion.
10                 WASHINGTON V. RYAN

                STANDARD OF REVIEW

    We review for an abuse of discretion a district court’s
ruling on a motion for relief from judgment pursuant to Rule
60(b). Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th
Cir. 2004). We review de novo any question of law
underlying the district court’s ruling. Lal v. California,
610 F.3d 518, 523 (9th Cir. 2010).

                       DISCUSSION

    Washington argues that there are three ways this court can
reach the merits of his habeas appeal: (1) decide that the
district court abused its discretion by denying relief from
judgment under Rule 60(b)(1) or 60(b)(6); (2) construe his
motion for a COA as a Rule 4(a)(5) motion for an extension
of time to file a NOA; or (3) deem his NOA premature, not
untimely, because he filed it before the district court issued a
COA. The State argues that Rule 4(a)’s time limits, which
have a statutory basis in 28 U.S.C. § 2107, are mandatory and
jurisdictional, and that Washington’s failure to comply with
those limits precludes this court from exercising jurisdiction
over his habeas appeal.

    Rule 60(b) permits the district court to vacate and reenter
judgment to restore the right to appeal in limited
circumstances. This conclusion is consistent with 28 U.S.C.
§ 2107, Rule 4(a), and case law from the Supreme Court, our
own circuit, and the Sixth and Seventh Circuits. The district
court misperceived the extent of its authority to grant
Washington’s Rule 60(b) motion. Washington’s case is in the
narrow band of cases for which relief from judgment is
appropriate. We therefore reverse the district court’s order
denying relief. Because we conclude that well-established
                       WASHINGTON V. RYAN                                11

authority entitles Washington to relief under Rule 60(b), we
do not reach his arguments that we should construe his
motion for a COA as a Rule 4(a)(5) motion, or that his NOA
was premature.

I. Washington is Entitled to Relief Under Rule 60(b).

    The district court premised its denial of Washington’s
Rule 60(b) motion on two separate grounds. First, it
concluded that Washington sought to use Rule 60(b) to
“circumvent the ‘mandatory and jurisdictional’ provisions of
[the 30-day deadline for filing an appeal provided in Rule
4(a)(1)].” Second, the court concluded that, even if Rule
60(b) gave the court authority to reenter judgment for
purposes of rendering Washington’s appeal timely,
Washington would not be entitled to relief under Rule
60(b)(1) or 60(b)(6). We respectfully disagree with both
conclusions. Several circuit courts, including our own, have
recognized that the ability to vacate and reenter judgment
pursuant to Rule 60(b) is consistent with the jurisdictional
nature of Rule 4(a)’s deadlines, and the circumstances of
Washington’s case compel relief under Rule 60(b)(1) or,
alternatively, Rule 60(b)(6).1


  1
    The dissent mischaracterizes this decision, and its implications. Our
opinion does not rely on the district court’s equitable authority or purport
to extend the Rule 4(a)(5) deadline to conclude Washington is entitled to
relief. It relies on the court’s express authority under Rule 60(b).
Recognizing this narrow authority does not “put[] a hole right through”
the Rule 4(a) appeal deadlines, as the dissent fears. Courts have used this
authority, sparingly, for decades to restore the thirty-day window to file
an appeal; a handful of cases have been found to warrant this type of
relief. To reach its extravagant conclusions, the dissent repeats a few key
errors: it misconstrues our own circuit’s case law, see In re Stein, 197 F.3d
421 (9th Cir. 1999), misstates case law from our sister circuits, and
12                    WASHINGTON V. RYAN

     A. In Exceptional Cases, Rule 60(b) Authorizes
        District Courts to Vacate and Reenter Judgments
        to Reset the Time to Appeal.

    The Supreme Court “has long held that the taking of an
appeal within the prescribed time is ‘mandatory and
jurisdictional.’” Bowles v. Russell, 551 U.S. 205, 209 (2007)
(quoting Griggs v. Provident Consumer Disc. Co., 459 U.S.
56, 61 (1982) (per curiam)). But the Supreme Court has also
recognized that a district court’s authority to provide relief
from judgment includes the authority, in certain
circumstances, to vacate and reenter a judgment to restore the
opportunity to appeal. See Hill v. Hawes, 320 U.S. 520
(1944). The Federal Rules have been amended since Hill,
and some of those amendments limit the relief available to
parties who fail to timely appeal due to lack of notice that
judgment was entered. But Washington’s case is not a lack-
of-notice case, and Congress has neither amended the rules
nor enacted a statute to abrogate the district court’s authority
to vacate and reenter judgment where other grounds support
a Rule 60(b) motion.2


erroneously asserts that the majority relies solely on a missed filing
deadline. The dissent also relies heavily on Bowles v. Russell, 551 U.S.
205 (2007), though Bowles says nothing about Rule 60(b). In fact, Bowles
relies on another Supreme Court case that strongly supports our decision.
  2
    The Federal Rules and its amendments were authorized by the Rules
Enabling Act, see ch. 651, 48 Stat. 1064 (1934) (codified as amended at
28 U.S.C. §§ 2071–2077 (2012)), under which Congress delegated to the
Supreme Court its rule-making authority over the “practice and
procedure” of federal courts, United States v. Jacobo Castillo, 496 F.3d
947, 954 (9th Cir. 2007) (en banc) (quoting 28 U.S.C. § 2072(a)). The
Rules Enabling Act also established a committee to evaluate and propose
amendments to the Rules. See 28 U.S.C. § 2073. The Supreme Court
transmits proposed amendments to Congress no later than May 1 of the
                       WASHINGTON V. RYAN                               13

    In Hill, the Supreme Court recognized that district court
authority to vacate and reenter judgment includes the
authority to do so for the purpose of restoring the opportunity
to appeal. See id. at 523–24. Hill missed the original
deadline to file his appeal because he did not receive timely
notice of the district court’s judgment. Id. at 521. The
Supreme Court affirmed the district court’s order vacating
and reentering its judgment in order to trigger a new filing
deadline. Id. at 523–24. In doing so, the Court confirmed
that the district court’s reentry of judgment was consistent
with the general authority it retained over its cases. See id.

    The dissent reads Hill as a narrow decision limited to
parties who do not receive notice of judgment, and to filing
deadlines established by rule, not statute. But Hill is not so
limited. Hill did not question that the district court lacked
authority to extend the appeal deadline, id. at 523, yet it
approved the district court’s decision to reenter judgment to
restore the opportunity to appeal. The Hill dissent argued that
the majority’s decision would allow federal judges “to make
a dead letter of the statutory limit of the period for appeal.”
Id. at 526 (Stone, C.J., dissenting) (emphasis added). And,
contrary to the dissent’s interpretation, the Rules Committee
also read Hill as creating a broad form of relief. It warned


year in which the amendments are to take effect and the amendments are
deemed adopted on December 1 of the same year unless Congress rejects
them. See 28 U.S.C. § 2074(a). The dissent suggests Rule 4(a) rests on
different authority because it “codifies” and “implement[s]” 28 U.S.C.
§ 2107, but Congress has amended § 2107 to track Rule 4(a), not the other
way around. See 16A Charles Alan Wright et al., Federal Practice and
Procedure § 3950.3 (4th ed. 2016) (describing history of § 2107). The
dissent offers no authority for its implied assertion that the Federal Rules
of Appellate Procedure have a superior statutory foundation than that of
the Federal Rules of Civil Procedure.
14                   WASHINGTON V. RYAN

that the decision “g[a]ve the district court power, in its
discretion and without time limit . . . to vacate a judgment and
reenter it for the purpose of reviving the right of appeal.”
Fed. R. Civ. P. 77 advisory committee’s note to 1946
amendment. In the aftermath of this decision, the Committee
responded by trimming, not eliminating, the authority Hill
recognized.

     By 1991, the Committee had amended the Federal Rules
in three ways significant to Washington’s case.3 First, the
Committee added Federal Rule of Appellate Procedure
4(a)(5), which provided a thirty-day grace period to allow a
litigant who missed Rule 4(a)(1)’s filing deadline an
opportunity to move for an extension of time to file an appeal.
See Fed. R. App. P. 4(a)(5). Parties may be entitled to an
extension under Rule 4(a)(5) if they show excusable neglect
or good cause. Fed. R. App. P. 4(a)(5)(A)(ii).

    Second, the Committee added Rule 4(a)(6), which is
specific to cases in which parties miss Rule 4(a)(1)’s deadline
due to lack of notice of the district court’s judgment. See
Fed. R. App. P. 4(a)(6). This rule authorizes an “outer time
limit” of 180 days to move for an extension of time to file an
appeal. Fed. R. App. P. 4(a)(6) advisory committee’s note to
1991 amendment. A district court may not otherwise relieve
parties from failing to file a timely appeal due solely to lack
of notice of judgment. See Fed. R. Civ. P. 77(d) (“Lack of
notice of the entry [of judgment] does not . . . authorize the



     3
      During the same time period, Congress enacted § 2107 and
periodically amended it to track these rule amendments. See 16A Charles
Alan Wright et al., Federal Practice and Procedure § 3950.3 (4th ed.
2016).
                       WASHINGTON V. RYAN                               15

court to relieve . . . a party for failing to appeal within the
time allowed, except as allowed by [Rule] 4(a).”).

    Third, the Committee expanded the grounds for relief
under Rule 60(b) to encompass the “various kinds of relief
from judgments which were permitted in the federal courts
prior to the adoption” of the rules. Fed. R. Civ. P. 60
advisory committee’s note to 1946 amendment; see also
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 235 (1995)
(recognizing that Rule 60(b) “codified judicial practice that
pre-existed”). As Hill demonstrates, these “various kinds of
relief” included the district court’s ability to grant relief from
judgment for the purpose of restoring the right to appeal.
Many courts recognized the validity of using Rule 60(b) for
this very purpose.4 See also Klapprott v. United States,
335 U.S. 601, 615 (1949) (recognizing that Rule 60(b) “vests
power in courts adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice”).

    After the addition of Rule 4(a)(6), we held that Rule 60(b)
is not available to restore appeal rights in lack-of-notice
cases. In re Stein, 197 F.3d 421, 423, 426 (9th Cir. 1999)
(explaining that our case law allowing Rule 60(b) relief to
retrigger appeal rights was rendered “obsolete and
inapplicable” to lack-of-notice cases “by the 1991 addition of


  4
    See, e.g., Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983); Burkett
v. Cunningham, 826 F.2d 1208, 1217 (3d Cir. 1987), abrogated on other
grounds by Betterman v. Montana, 136 S. Ct. 1609 (2016); Wallace v.
McManus, 776 F.2d 915, 917 (10th Cir. 1985), superseded by rule, Fed.
R. App. P. 4(a)(6), as recognized in Clark v. Lavallie, 204 F.3d 1038,
1040 (10th Cir. 2000); Wilson v. Atwood Grp., 725 F.2d 255, 258 (5th Cir.
1984) (en banc); Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226,
227 (4th Cir. 1981); Mizell v. Attorney Gen. of State of N.Y., 586 F.2d 942,
944 n.2 (2d Cir. 1978).
16                     WASHINGTON V. RYAN

Rule 4(a)(6)”). Our sister circuits agreed. See Zimmer St.
Louis, Inc. v. Zimmer Co., 32 F.3d 357, 361 (8th Cir. 1994)
(“[T]he plain language of both Fed. R. App. P. 4(a)(6) and
Fed. R. Civ. P. 77(d) addresses specifically the problem of
lack of notice of a final judgment.”); see also Vencor Hosps.,
Inc. v. Standard Life & Accident Ins. Co., 279 F.3d 1306,
1311 (11th Cir. 2002) (same); Clark v. Lavallie, 204 F.3d
1038, 1041 (10th Cir. 2000) (same).

    This history shows that Congress acted in the years since
Hill to narrow the circumstances under which late-filed
appeals may be accepted, but despite several sets of
amendments, changes to § 2107 and the Federal Rules have
not abrogated district courts’ traditional authority to grant
relief from judgment in cases—like Washington’s—where “a
notice of appeal is filed late for reasons other than lack of
notice.” Tanner v. Yukins, 776 F.3d 434, 441 (6th Cir. 2015).
Indeed, after the 1991 amendments, several courts have had
occasion to explicitly recognize that Rule 60(b) may be used,
sparingly, to restore the right to appeal in extraordinary cases
when parties rely on grounds other than lack of notice.

    One such case was Mackey v. Hoffman, where our own
court followed the Supreme Court’s reasoning in Maples v.
Thomas, 132 S. Ct. 912 (2012), and identified attorney
abandonment as an extraordinary circumstance that justified
relief under Rule 60(b).5 682 F.3d 1247, 1253 (9th Cir.
2012); see also Lal, 610 F.3d at 524 (recognizing attorney’s


     5
      In Maples, the Court held that petitioner’s state post-conviction
attorneys’ abandonment, which caused petitioner to miss a state filing
deadline, constituted an “extraordinary circumstance[] beyond his control”
that lifted the state procedural bar to his federal petition. Maples, 132 S.
Ct. at 924 (quoting Holland v. Florida, 560 U.S. 631, 659 (2010)).
                       WASHINGTON V. RYAN                                 17

gross negligence as extraordinary circumstance justifying
relief from judgment where counsel failed to prosecute a
wrongful death action). Mackey was a federal habeas
petitioner who learned of the judgment entered against him
after Rule 4(a)(6)’s 180-day period had passed because his
attorney abandoned him and never informed him of the status
of his case. Mackey, 682 F.3d at 1249–50. Citing In re Stein,
the district court concluded that it lacked discretion to provide
relief from judgment under Rule 60(b). Id. at 1250. We
reversed, and explained that the limitations on district court
authority identified in In re Stein apply only to Rule 77(d)
lack-of-notice cases. See id. at 1252. Mackey and In re Stein
are consistent with the conclusion that Rule 60(b) relief
remains available for extraordinary cases outside of the lack-
of-notice context.6

    The Seventh Circuit reached a similar conclusion in
Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015), where
a federal habeas petitioner missed the deadline to file a NOA
after his counsel abandoned him. Id. at 849. The Seventh
Circuit saw “no reason to distinguish between actions at the
state level that result in procedural default and the consequent
loss of a chance for federal review”—describing the posture
in Maples—“and actions at the federal level that similarly



  6
    The dissent accuses us of sub silentio overruling In re Stein, but this is
plainly wrong. We simply recognize, as our court previously recognized
in Mackey and as we did in In re Stein itself, that In re Stein’s holding is
limited to lack-of-notice cases. See Mackey, 682 F.3d at 1252 (“Unlike
the appellants in In re Stein, Mackey is not seeking to utilize Rule 60(b)(6)
to cure a Rule 77(d) ‘lack of notice’ problem.”); In re Stein, 197 F.3d at
426 (distinguishing prior Ninth Circuit case law that permitted Rule 60(b)
relief to restore appeal rights as “rendered obsolete and inapplicable to this
type of [lack-of-notice] case”) (emphasis added).
18                 WASHINGTON V. RYAN

lead to a procedural default that forfeits appellate
review”—as was the posture in Mackey. Id. at 854.

    Finally, notwithstanding Rule 4(a)(1)’s jurisdictional time
limit, the Sixth Circuit held in Tanner that the district court
had authority to vacate and reinstate its denial of a habeas
petition pursuant to Rule 60(b). 776 F.3d at 441. This
afforded a new thirty-day window to file an appeal. Tanner
was nearly illiterate but she managed to prepare an appeal
from the denial of her habeas petition with the assistance of
a prison writ-writer. Id. at 436. She wound up filing it one
day late because her prison unit was placed on lockdown, and
prison guards threatened to put her in solitary confinement if
she left her cell to meet her filing deadline. See id. The
district clerk’s office processed the appeal, not realizing that
it was late. Id. at 436–37. By the time the circuit court
received the NOA, the thirty-day period for requesting an
extension had expired, and Tanner’s appeal was dismissed for
lack of jurisdiction. Id. at 437. Tanner responded by filing
a successful 42 U.S.C. § 1983 lawsuit against the guards who
interfered with her constitutionally guaranteed access to the
court. Id. Armed with a judgment recognizing the
unconstitutional nature of the guards’ actions, Tanner sought
relief in her habeas case under Rule 60(b)(6). Id. As the
district court did in Washington’s case, the district court in
Tanner denied relief because it concluded that Rule 4(a)(1)’s
time limit is jurisdictional and that granting relief under Rule
60(b) would impermissibly circumvent the rule’s
jurisdictional limits. See id. at 437–38.

    The Sixth Circuit reversed. In doing so, the court
recognized that Rule 60(b) dates back to the earliest
promulgation of the Federal Rules, that the rule “is simply the
recitation of pre-existing judicial power,” id. at 438 (quoting
                    WASHINGTON V. RYAN                         19

Plaut, 514 U.S. at 234–35), and that the amendments to the
Federal Rules have limited this authority only where the
reason for a late filing is lack of notice of judgment, see id. at
441–43. The Sixth Circuit remanded Tanner’s case with
instructions to vacate and reenter judgment. Id. at 444. Its
decision is consistent with the mandatory nature of the filing
deadline in Rule 4(a)(1) and the relief we grant Washington
today.

     The dissent incorrectly states that only the Sixth Circuit
is in accord with our decision. This misstates the law of other
circuits. For example, the dissent relegates the Seventh
Circuit’s recent Ramirez decision to a footnote, selecting
instead the Seventh Circuit’s earlier case, Bell v. Eastman
Kodak Co., 214 F.3d 798 (7th Cir. 2000). Bell did not
categorically hold that Rule 60(b) may not be used to restore
appeal rights in non lack-of-notice cases. It simply decided
that the basis for the Rule 60(b) motion in that case—one that
should have been argued on direct appeal because it
challenged the trial judge’s interpretation of evidence—did
not warrant Rule 60(b) relief, and that an appeal from the
denial of such a motion is functionally an appeal from the
underlying judgment itself. See id. at 800.

    The dissent also relies on the Third Circuit’s decision in
West v. Keve, 721 F.2d 91 (3d Cir. 1983). But West does not
stand for the broad proposition that using Rule 60(b) to
restore appeal rights is inconsistent with § 2107. Indeed,
when the Third Circuit later “reaffirm[ed] West,” it
acknowledged “exceptional circumstances that justify relief
under Rule 60(b) outside the time constraints of Rule 4(a)(5)”
for the purpose of preserving appeal rights. Burkett v.
Cunningham, 826 F.2d 1208, 1217 (3d Cir. 1987), abrogated
on other grounds by Betterman v. Montana, 136 S. Ct. 1609
20                 WASHINGTON V. RYAN

(2016). By pointing to factually distinguishable cases from
other circuits, the dissent misses the broader point that there
is a solid line of case law recognizing that district courts have
the ability to restore appeal rights, in limited circumstances,
by vacating and reentering judgment.

    The only circuits we are aware of to suggest such relief is
never available are the Fifth and Eleventh Circuits. See Perez
v. Stephens, 745 F.3d 174, 176 (5th Cir. 2014); Jackson v.
Crosby, 437 F.3d 1290, 1296 (11th Cir. 2006). Perez is
nothing like Washington’s case because it addressed a
situation in which counsel affirmatively decided not to file an
appeal, rather than a situation in which external
circumstances prevented an appeal from being filed.
745 F.3d at 176. And in Jackson, the Eleventh Circuit had
previously dismissed an appeal as untimely and viewed a
later-filed Rule 60(b) motion as a request that the district
court circumvent its earlier decision. 437 F.3d at 1296. The
result we reach today is consistent with our own case law and
case law from the Sixth and Seventh Circuits—decisions
recognizing that this use of Rule 60(b) is not new, that it has
been rarely but consistently used for decades, and that
Congress did not eliminate it when it imposed other
limitations in the years since the Supreme Court’s decision in
Hill.

    The State argues that Rule 60(b) is unavailable to assist
Washington because its plain language authorizes relief from
“judgment,” there is no infirmity in the judgment entered
against Washington, and the problems in this case arose only
after the judgment was entered. But Rule 60(b) does not
require that the asserted grounds for relief exist before
judgment is entered, and Rule 60(b)’s history and use make
clear that it is not so limited. See, e.g., Fed. R. Civ. P. 60
                      WASHINGTON V. RYAN                             21

advisory committee’s note to 1946 amendment (noting Rule
60(b) encompasses grounds for relief that existed before the
rule’s adoption); see also Tanner, 776 F.3d at 444
(recognizing Rule 60(b) relief may be appropriate for grounds
arising after judgment was entered); Mackey, 682 F.3d at
1254 (same); Burkett, 826 F.2d at 1217 (same); Wilson,
725 F.2d at 258 (same); Rodgers, 722 F.2d at 460 (same);
Hensley, 651 F.2d at 227 (same); Mizell, 586 F.2d at 944 n.2
(same).

    The State also argues that we lack jurisdiction to hear
Washington’s appeal because, in 28 U.S.C. § 2107(c),
Congress specifically limited the amount of time by which
district courts can extend the period for filing NOAs. The
State and the dissent rely heavily on Bowles v. Russell,
551 U.S. 205. There, the district court granted a Rule 4(a)(6)
motion to reopen the time to file an appeal, but it inexplicably
authorized three more days than the rule allows. Id. at 207.
The Supreme Court noted the “mandatory and jurisdictional”
nature of Rule 4(a) deadlines and concluded that the court of
appeals lacked jurisdiction to hear an appeal filed before the
expiration of the court-imposed deadline, but after the
expiration of the period allowed by the rule. Id. at 209–10,
213–15. The Court reiterated that federal courts have “no
authority to create equitable exceptions to jurisdictional
requirements.” Id. at 214.7


  7
     The D.C. Circuit cited Bowles when it ruled that the district court
lacked authority to provide Rule 60(b) relief “to circumvent the 180-day
deadline of Appellate Rule 4(a)(6),” even in particularly compelling
circumstances. See In re Sealed Case, 624 F.3d 482, 489 (D.C. Cir. 2010)
(affirming denial of Rule 60(b) motion in a lack-of-notice case where
appellant was not allowed to review a sealed docket despite written and
oral inquiries to the clerk of the court). In re Sealed Case was a
22                     WASHINGTON V. RYAN

    We are not persuaded that Bowles dictates the outcome of
Washington’s appeal. Bowles did not address Rule 60(b) and
did not purport to announce a new principle of law. Bowles
described as “long held” the principle that appeal deadlines
are mandatory and jurisdictional, id. at 209, and it did nothing
to call into question the similarly “long held” district court
authority under Rule 60(b).8 Id. at 205. In fact, Bowles relied
on Browder v. Director, Department of Corrections, 434 U.S.
257 (1978), a case that supports our decision. Bowles,
551 U.S. at 209–10 (citing Browder for the proposition that
Rule 4(a) is jurisdictional). Browder was a habeas case in
which the state respondent filed an untimely motion for an
evidentiary hearing after the district court granted habeas
relief. See 434 U.S. at 260–61. The Supreme Court
concluded that the circuit court lacked jurisdiction because
the untimely motion for an evidentiary hearing did not toll
Rule 4(a)’s limit on the time to appeal. See id. at 264–65,
271–72. Critically, the State argued that the motion it filed in
the district court was not based on Rule 60(b). Id. at 263.



particularly harsh result, but as we recognized in In re Stein, there does not
appear to be any other avenue of relief in pure lack-of-notice cases.
     8
      The dissent argues that by relying on Rule 60(b), the majority
impermissibly circumvents the § 2107 time limits governing appeals. But
under the dissent’s view, many other types of Rule 60(b) motions would
also “circumvent” those statutory limits. For example, a party may appeal
a district court’s judgment after the court rules on a timely post-judgment
motion, such as a Rule 60(b) motion, even if the court waits months before
ruling, and even if the court denies the motion. Such an appeal would be
filed more than “30 days after entry of the judgment or order appealed
from,” Fed. R. App. P. 4(a)(1)(A), and it would not be subject to an
extension under Rule 4(a)(5) or 4(a)(6). Of course, Rule 4(a)(4) tolls the
time to appeal in such cases, but Rule 4(a)(4) has the same statutory
footing as Rule 60(b).
                   WASHINGTON V. RYAN                        23

    Justice Blackmun wrote separately to concur in the
judgment, joined by Justice Rehnquist. The concurrence
explained that if the state had not “disavowed any reliance on
Rule 60(b),” its motion likely could have been considered a
motion under Rule 60(b)(1) or 60(b)(6). See id. at 274
(Blackmun, J., concurring). The concurrence observed that,
had this been the case, an order from the district court
reinstating its judgment would have started a new appeal
period and respondent’s NOA would have been timely. Id. at
272. Justice Blackmun saw “no obligation on [the] Court’s
part to attempt to rescue respondent’s case on a Rule 60(b)
basis” because the respondent insisted that it had not relied on
Rule 60(b) in the trial court. Id. at 274.

    The core principle from Bowles and Browder—that
federal courts lack equitable authority to extend Rule 4(a)’s
jurisdictional deadlines—is the same principle recognized in
Hill. See Hill, 320 U.S. at 523 (“It goes without saying that
the District Court could not extend the period [to appeal]
fixed by Rule . . . .”). But Hill identified a second principle
that does no violence to the first: federal court authority to
relieve parties from judgment, now vested in Rule 60(b),
includes the authority to vacate and reenter the judgment in
extraordinary circumstances to restore the thirty-day
opportunity to appeal. See id. at 523–24.

     For decades, courts have sparingly but consistently
exercised their authority under Rule 60(b) to restore appeal
rights. Neither Congress nor the Supreme Court has seen fit
to limit this authority except in lack-of-notice cases.
24                WASHINGTON V. RYAN

     B. Washington is entitled to relief under Rule
        60(b)(1).

    The district court ruled that Washington’s case did not
warrant relief under Rule 60(b)(1) because he did “not
demonstrate[] that he acted diligently in discovering the
untimely filing” and because Washington failed to make “any
effort to confirm the timeliness of his NOA until notified by
the Ninth Circuit.”

    Rule 60(b)(1) authorizes relief from judgment for
“mistake, inadvertence, surprise, or excusable neglect.” On
appeal, Washington relies on mistake and excusable neglect.
In Pioneer Investment Services Co. v. Brunswick Associates
Ltd. Partnership, 507 U.S. 380 (1993), the Supreme Court
explained that excusable neglect under Rule 60(b)(1) applies
when a party’s failure to file on time is within “his or her
control.” Id. at 394. Motions for relief from judgment under
Rule 60(b)(1) must be filed within one year from the entry of
judgment and they must satisfy the four-factor test the
Supreme Court established in Pioneer. The test considers:
(1) the danger of prejudice to the non-moving party; (2) the
length of the filing delay and its potential impact on the
proceedings; (3) the reason for the filing delay; and
(4) whether the moving party acted in good faith. Id. at 395;
see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
1261 (9th Cir. 2010); Briones v. Riviera Hotel & Casino, 116
F.3d 379, 381–82 (9th Cir. 1997). A district court must fully
consider these factors in every case; we have explicitly
rejected per se rules for determining whether a mistake is
excusable. See Pincay v. Andrews, 389 F.3d 853, 860 (9th
Cir. 2004) (en banc).
                   WASHINGTON V. RYAN                       25

    In cases decided before Rule 4(a)(6) was adopted, we
required parties to show diligence before invoking Rule
60(b)(1) for the purpose of restoring the opportunity to
appeal. See Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.
1983). Rodgers was a lack-of-notice case, but we see no
reason to remove this requirement for parties like Washington
who seek relief for reasons other than lack of notice. See
Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993)
(applying Rodgers to a non lack-of-notice case). In
addition—consistent with the Supreme Court’s emphasis in
Pioneer that “all relevant circumstances surrounding” the
parties’ failure to make a timely filing must be considered,
507 U.S. at 395—we consider the stakes at issue. Here, the
stakes are extraordinarily high because Washington faces a
death sentence.

    Before applying the Pioneer test, we note that while
Washington’s initial calendaring error deprived him of the
right to appeal within Rule 4(a)(1)’s time limit, it was the
separate failure to realize that his appeal was late—and that
he needed to seek a Rule 4(a)(5) extension—that ultimately
caused Washington’s appeal to be dismissed. The district
court recognized this; its order denying Washington’s motion
for Rule 60(b) relief focused on Washington’s failure to
discover his calendaring error. The court implicitly ruled that
the failure to catch the first error in time to seek a Rule
4(a)(5) extension was not excusable neglect. Under the
circumstances of this case, application of the Pioneer test
compels a different outcome.

    The first Pioneer factor favors relief. The State has not
argued that it would be prejudiced if Washington’s habeas
appeal is heard on the merits. Nor could it; the State has been
on notice of Washington’s intent to appeal since one business
26                     WASHINGTON V. RYAN

day after the initial Rule 4(a)(5) deadline. Second, the length
of the delay and its potential impact on the proceedings also
favors granting relief: even considering the time required to
resolve the Rule 60(b) motion, reentering judgment so that
Washington’s appeal could move forward would have added
only an insignificant amount of time in the context of this
case. Third, the reason for the initial late filing is
uncontested. Washington’s lawyers simply miscalculated the
date the NOA was due and calendared it one day too late.9
Washington’s lawyers did not catch their initial filing error
because, after the NOA was filed, nothing prompted them to
recalculate the due date. There were no filings before the
appellate court’s order to show cause that should have
prompted Washington or his lawyers to recalculate Rule
4(a)(1)’s filing deadline, and the State does not point to any
event or other communication from the court or between the
parties that should have put Washington on notice of the
error. The final Pioneer factor is whether the moving party
acted in good faith. Here, there is no suggestion that
Washington’s lawyers missed the 4(a)(5) window in bad faith
or to gain advantage, and we have said that where other
factors counsel relief, a calendaring mistake and related
failure to catch that mistake is no bar to Rule 60(b)(1) relief.
See Ahanchian, 624 F.3d at 1262.




  9
    We have affirmed orders granting Rule 4(a)(5) relief for negligent
calendaring errors. See, e.g., Pincay, 389 F.3d at 860 (paralegal read Rule
4(a)(1) as permitting 60 days to appeal, the time allowed when the
government is a party to the case, even though the government was not a
party); Marx v. Loral Corp., 87 F.3d 1049, 1053–54 (9th Cir. 1996)
(appeal deadline docketed a day late because of failure to realize August
contains thirty-one days), overruled on other grounds by Lacey v.
Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (en banc).
                   WASHINGTON V. RYAN                        27

    As for the district court’s concern that Washington’s
lawyers were not diligent in recognizing their mistake, even
daily monitoring of the docket would not have revealed that
Washington’s NOA was late. Washington filed his NOA and
request for a COA on July 11, 2005. No other entries
appeared on the district court docket until the district court’s
September 30 ruling on Washington’s motion for a COA.
We do not require lawyers to spontaneously recalculate Rule
4(a)’s filing deadlines after they file a NOA when there is no
suggestion from the court or the docket that the NOA was
late. Rule 4 itself does not demand perfection—its drafters
created a grace period in Rule 4(a)(5) precisely because
mistakes happen. Washington’s lawyers are responsible for
the initial late filing, but we cannot say they lacked diligence
for failing to detect their late filing in time to seek an
extension. The district court abused its discretion in
concluding otherwise.

    Granting Washington relief would have had only a
negligible effect on the proceedings, but denying relief
eliminated any federal appellate review of the habeas petition
in this capital case.      This tremendous disparity, in
combination with consideration of the Pioneer factors, amply
justified relief from judgment under Rule 60(b)(1).

   C. In the Alternative, Washington is entitled to relief
      under Rule 60(b)(6).

    If relief from judgment is not available under Rule
60(b)(1)–(5), Rule 60(b)(6) authorizes the district court to
grant relief from judgment for “any other reason that justifies
relief.” To justify relief under Rule 60(b)(6), a party must
show external “‘extraordinary circumstances’ suggesting that
the party is faultless in the delay.” Pioneer, 507 U.S. at 393.
28                     WASHINGTON V. RYAN

The district court denied Washington’s Rule 60(b)(6) motion
because it concluded that the motion was “not grounded in
external, extraordinary circumstances not otherwise addressed
by Rule 60(b)(1)–(5).”

     Our review of the record in this case persuades us that
external circumstances did prevent Washington from
discovering that his appeal was late, and from seeking an
extension of time before Rule 4(a)(5)’s grace period expired.
The dissent does not acknowledge it, but the record is unique
in its clarity on this point.10

    When Washington filed his NOA in 2005, Federal Rule
of Appellate Procedure 3(d) required the district court clerk
to “promptly send a copy of the notice of appeal” to the
appellate clerk. The district clerk’s office did not comply
with this rule. Instead, the clerk waited over two and a half
months, until the district court issued the COA, before
sending Washington’s NOA to the appellate court. The
dissent protests that Rule 3(d) “does not specify a time within
which the district court must act,” but the rule did require that
the NOA be forwarded promptly, and we cannot conceive of
a definition in which a nearly three-month delay qualifies as
“prompt.” Nor can the few courts that have considered the
question. See, e.g., Yadav v. Charles Schwab & Co., Inc.,
935 F.2d 540, 541 (2d Cir. 1991) (district court clerk violated

 10
    The State argues that the only external circumstances that are relevant
to Rule 60(b)(6) are those that prevent the initial filing of an appeal in
compliance with Rule 4(a)(1), not those that prevent a petitioner from
realizing that the appeal was untimely in time to seek a Rule 4(a)(5)
extension. We see nothing to support this distinction. The principle from
Hill that district court authority to provide relief from judgment includes
the authority to vacate and reenter judgment to restore appeal rights
applies equally to Rule 4(a)(5) and Rule 4(a)(1).
                   WASHINGTON V. RYAN                         29

Rule 3(d) by failing to forward NOA to the court of appeals
for nearly three months). The record does not reveal why the
district court did not comply with Rule 3(d). The clerk may
have thought that it was sufficient to comply with Federal
Rule of Appellate Procedure 22(b)(1), which at the time
required the clerk to “send the certificate [of appealability]
. . . to the court of appeals with the notice of appeal.” Fed. R.
App. P. 22(b)(1) (1999) (emphasis added). Whatever the
clerk’s reason, Rule 22(b)(1) did not render Rule 3(d) a
nullity; the clerk was required to comply with Rule 3(d) and
also with Rule 22(b)(1).

    These two rules served different functions in a
coordinated scheme: Rule 22(b) facilitated the administrative
transfer of habeas cases from the district court to the appellate
court. Forwarded together, the NOA and COA gave the
appellate clerk notice of the transfer of jurisdiction and of the
issues presented for appeal. See generally 28 U.S.C. § 2253;
Fed. R. App. P. 4. Rule 3(d) served an entirely different
purpose. It was intended to give the court of appeals
“increased practical control over the early steps in the
appeal.” Fed. R. App. P. 3(d) advisory committee’s note to
1979 amendment.

    The dissent questions how it could be that the rules may
have required the district clerk to forward the NOA twice in
situations like this one, where there was a delay between the
entry of judgment and a ruling on the motion for a COA.
This requirement, the dissent claims, “makes no sense.” But
it makes perfect sense. It was the district court’s entry of
judgment, not its ruling on a COA, that started the clock on
Rule 4(a)’s deadlines. See Fed. R. App. P. 4(a)(1)(A). Once
the clock began ticking, Rule 3(d)’s “prompt” requirement
ensured the appellate clerk received the NOA in time to
30                 WASHINGTON V. RYAN

identify, and permit the parties to cure, jurisdictional defects
before Rule 4(a)(5)’s grace period expired.

    The Second Circuit recognized as much in Yadav, one of
the few published opinions addressing Rule 3(d). See
935 F.2d at 541. The plaintiffs in Yadav filed a premature
NOA and failed to renew their filing after the district court
ruled on their motion for reconsideration. This rendered their
appeal untimely under Griggs v. Provident Consumer
Discount Co., 459 U.S. 56 (1982), superseded in part by Fed.
R. App. P. 4(a)(4)(B)(i), 1993 amendments. The Second
Circuit excused the failure to refile because the district clerk
failed to promptly forward the premature NOA to the
appellate clerk, and therefore “omitted an important step in
the appellate process.” Yadav, 935 F.2d at 541–42. There,
like here, “if . . . the notice had been promptly forwarded to
this Court, we could have promptly dismissed the appeal at a
time when the appellants would still have had 30 days” to
cure their jurisdictional defect. Id. at 542. The answer to the
dissent’s question is apparent when it is remembered that any
defects in a NOA affect the jurisdiction of the appellate court,
not the district court, hence Rule 3(d)’s sensible requirement
that the NOA be forwarded to the appellate clerk promptly.
See id. at 541–42.

    Washington’s appeal, like the Yadavs’, illustrates why
Rule 3(d) directs that NOAs must be forwarded promptly.
One week after receiving the NOA, the appellate clerk issued
an order to show cause why Washington’s appeal should not
be dismissed as untimely. Six days after that, Washington
filed his Rule 60(b) motion. The record does not require that
we speculate about what would have happened if
Washington’s NOA had been forwarded without delay: if the
NOA had been forwarded promptly, Washington would have
                       WASHINGTON V. RYAN                                31

received notice with two weeks remaining in Rule 4(a)(5)’s
grace period, he would have had ample time to request an
extension, and it cannot be doubted that he would have done
so. We know this because it took just six days for
Washington’s lawyers to respond once they received the
order to show cause. The district court abused its discretion
by not crediting the combination of the court’s failure to
promptly forward the NOA to the appellate clerk and the time
it took to rule on the COA as external factors that foreclosed
Washington’s opportunity to seek an extension of time.11

II. We Do Not Reach Washington’s Alternative
    Arguments.

    Washington’s NOA and COA were docketed just after
Rule 4(a)(5)’s thirty-day grace period began. Washington
argues on appeal that his motion for a COA may be construed
as a request for an extension of time under Rule 4(a)(5); if
granted, this request would render his appeal timely. Well-
reasoned case law supports the proposition that “[a]ny
submission signed by a party that may fairly be read as a
request to the district court to . . . permit a late appeal should


 11
     The sequence of events that thwarted Washington’s appeal cannot be
repeated. The Committee amended Rule 22 in 2009 and the current rule
directs that NOAs be forwarded even if no COA has issued: “[w]hen an
applicant has filed a notice of appeal, the district clerk must transmit the
record to the court of appeals; if the district judge has issued a [COA], the
district clerk must include in this transmission the certificate.” Fed. R.
App. P. 22 advisory committee’s note to 2009 amendment (emphasis
added). Thus, even if court staff mistakenly consult Rule 22 in isolation,
it is plain that the NOA must be forwarded without waiting for the COA.
Also in 2009, the Committee added a new rule that requires a district court
to “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a), Rules Governing § 2254 Cases.
32                    WASHINGTON V. RYAN

suffice” as a motion for additional time under Rule 4(a)(5).
Campos v. LeFevre, 825 F.2d 671, 676 (2d Cir. 1987). This
is consistent with the Supreme Court’s recent statements that
it is “a good thing . . . that courts sometimes construe one
kind of filing as another” to “identify[] a route to relief.” See
Mata v. Lynch, 135 S. Ct. 2150, 2156 (2015). But
Washington never raised this argument before the district
court despite his opportunity to do so.12

    Washington also adopts an argument advanced by amicus,
that the order denying his § 2254 habeas petition did not
become final and appealable until the district court ruled on
his motion for a COA. See 28 U.S.C. § 2253(c) (a COA is a
prerequisite to appeal of an order denying a § 2254 petition).
As far as we are aware, this argument is one of first
impression. Because we conclude that the circumstances of
Washington’s case entitle him to relief under well-established
authority applying Rule 60(b)(1) or, alternatively, 60(b)(6),
we do not reach Washington’s alternative arguments.

                          CONCLUSION

    Having traced the history and interpretation of Rule 60(b),
we conclude that when Congress adopted the Federal Rules,
it entrusted the courts with the essential task of identifying
the rare cases that warrant reentry of judgment for purposes
of restoring the right to appeal. Subsequent amendments

 12
    Washington filed two Rule 60(b) motions with the district court after
he learned his NOA was late. A three-judge panel of our court vacated the
district court’s order denying Washington’s first 60(b) motion because the
case had not been remanded and the district court lacked jurisdiction. The
panel then issued a limited remand to permit Washington to file a second
Rule 60(b) motion. Neither motion argued that his motion for a COA
should be construed as a motion for a Rule 4(a)(5) extension.
                   WASHINGTON V. RYAN                      33

have not abrogated that authority and district courts have
discharged this obligation with care. Of the thousands of
judgments entered by district courts each year, only a handful
have been found to warrant this type of relief. We conclude
that Washington’s is one of them.

    We reverse the district court’s denial of Washington’s
motion for relief from judgment pursuant to Rule 60(b) in
appeal No. 07-15536. On limited remand, the district court
shall vacate and reenter its judgment denying Washington’s
petition for writ of habeas corpus, nunc pro tunc, June 9,
2005. After the district court reenters its judgment,
Washington’s appeal from the denial of his § 2254 petition
may proceed in appeal No. 05-99009. We do not reach the
remainder of Washington’s arguments. No new briefing is
authorized by this decision.

   REVERSED AND REMANDED.



BYBEE, Circuit Judge, with whom CALLAHAN, BEA,
IKUTA, and WATFORD, Circuit Judges, join, dissenting:

    I take no pleasure in writing this dissent. Washington’s
counsel filed his notice of appeal one day late. The office of
the Arizona Public Defender is well known to this court and
enjoys an outstanding reputation. Washington’s lead counsel
has earned the respect of this court; he is an experienced and
conscientious attorney, an expert in death penalty appeals and
habeas petitions. For anyone who has litigated and has
known the anxiety of counting and then recounting the days
towards deadlines, this is a nightmare.
34                 WASHINGTON V. RYAN

     For at least the last fourteen years, the Supreme Court has
been telling us that we have failed to appreciate the difference
between jurisdictional rules and claim-processing rules. See,
e.g., Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
434–36 (2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S.
154, 160–63 (2010); Union Pac. R.R. Co. v. Locomotive
Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region,
558 U.S. 67, 81–82 (2009); Arbaugh v. Y & H Corp.,
546 U.S. 500, 510–12 (2006); Eberhart v. United States,
546 U.S. 12, 15–16 (2005) (per curiam); Kontrick v. Ryan,
540 U.S. 443, 452–56 (2004); United States v. Cotton,
535 U.S. 625, 630–31 (2002). The Court has chided itself
that, “Courts—including this Court—have sometimes
mischaracterized claim-processing rules . . . as jurisdictional
limitations.” Reed Elsevier, 559 U.S. at 161. Accordingly,
“[i]n light of the important distinctions between jurisdictional
prescriptions and claim-processing rules,” the Court has
“encouraged federal courts and litigants to ‘facilitat[e] clarity
by using the term “jurisdictional” only when it is apposite.’”
Id. (quoting Kontrick, 540 U.S. at 455). We have responded
to the Court’s prompting by carefully considering whether
cases must be dismissed for jurisdictional reasons or for
other, non-jurisdictional reasons. See, e.g., Kwai Fun Wong
v. Beebe, 732 F.3d 1030, 1051 (9th Cir. 2013) (en banc);
Irigoyen-Briones v. Holder, 644 F.3d 943, 947–49 (9th Cir.
2011); United States v. Jacobo Castillo, 496 F.3d 947,
951–54 (9th Cir. 2007) (en banc); United States v. Sadler,
480 F.3d 932, 939–40 (9th Cir. 2007).

    Rules that are part of the process of adjudicating claims
and rules that constrain our jurisdiction are very different
kinds of rules. From the perspective of the parties, it may not
make much difference if the result is an adverse judgment;
after all, a party doesn’t usually care if the case is dismissed
                   WASHINGTON V. RYAN                       35

under Federal Rule of Civil Procedure 12(b)(1) or Rule
12(b)(6), because the effective result is the same. But the
application of jurisdictional rules versus claim-processing
rules is of great consequence to the federal courts. Claim-
processing rules go to the way in which we will conduct our
ordinary business. Congress has granted us power, through
the Rules Enabling Act, to promulgate rules of procedure in
our courts. See 28 U.S.C. § 2072(a). Such rules bring order
to the process by which we resolve disputes. Such rules must
be respected and enforced, but these rules, after all, are our
rules and we feel a freer hand in the flexible application of
those rules. Such rules may be waived or forfeited. See
Union Pac. R.R. Co., 558 U.S. at 81–82; Kontrick, 540 U.S.
at 456.

    Jurisdictional rules, by contrast, go to our “power to hear
a case” and “can never be forfeited or waived.” Arbaugh,
546 U.S. at 514 (quoting Cotton, 535 U.S. at 630). They are
grounded in Article III of the Constitution, the organic
provision that creates the federal courts and locates those
courts within a system of separated powers. Article III vests
the “judicial Power of the United States” in “one Supreme
Court, and such inferior courts as the Congress may from
time to time ordain and establish.” U.S. Const. art. III, § 1.
The “judicial Power” is not a self-defining term, but

       shall extend to all Cases, in Law and Equity,
       arising under this Constitution, the Laws
       of the United States, and Treaties made,
       or which shall be made, under
       their Authority;—to all Cases affecting
       Ambassadors, other public Ministers and
       Consuls;—to all Cases of admiralty and
       maritime Jurisdiction; —to Controversies to
36                 WASHINGTON V. RYAN

       which the United States shall be Party; —to
       Controversies between two or more States;
       —between Citizens of different states,—
       [and] between Citizens of the same State
       claiming Land under Grants of different
       States.

U.S. Const. art. III, § 2, cl. 1, as amended by amend. XI. This
section contains the outer limits of our jurisdiction. See Ex
Parte McCardle, 74 U.S. 506, 513 (1868) (“The principle that
the affirmation of appellate jurisdiction implies the negation
of all such jurisdiction not affirmed having been thus
established, it was an almost necessary consequence that acts
of Congress, providing for the exercise of jurisdiction, should
come to be spoken of as acts granting jurisdiction, and not as
acts making exceptions to the constitutional grant of it.”);
Durousseau v. United States, 10 U.S. 307, 313–14 (1810)
(“Had the judicial act created the supreme court, without
defining or limiting its jurisdiction, it must have been
considered as possessing all the jurisdiction which the
constitution assigns to it. . . . [The appellate powers of this
Court] are limited and regulated by the judicial and by such
other acts as have been passed on the subject.”). Other than
cases affecting ambassadors, ministers, and consuls, Congress
controls the Supreme Court’s jurisdiction. U.S. Const. art.
III, § 2, cl. 2 (“[T]he supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make.”).
Because Congress has the power to create lower federal
courts under Article III, Section 1, Congress also has the
power to regulate the jurisdiction of the lower courts,
including this one. U.S. const. art. III, § 1; Sheldon v. Sill,
49 U.S. 441, 448–49 (1850). We possess only such
jurisdiction as Congress has granted by statute, and no more.
                   WASHINGTON V. RYAN                       37

Sheldon, 49 U.S. at 449 (“Courts created by statute can have
no jurisdiction but such as the statute confers.”); United
States v. Hudson, 11 U.S. 32, 33 (1812) (“All other Courts
created by the general Government possess no jurisdiction but
what is given them by the power that creates them, and can be
vested with none but what the power ceded to the general
Government will authorize them to confer.”); Veterans for
Common Sense v. Shinseki, 678 F.3d 1013, 1019 (9th Cir.
2012). These jurisdictional limitations may not be waived but
must be observed with exactness, lest we seize power we
have no right to exercise. Because we are a “government of
laws and not of men,” Mass. Const. pt. I, art. XXX,
sometimes, as judges in hard cases, we must decline to
exercise power even when it is contrary to our best
inclinations as people. But it is the nature of a government of
laws that we must resist our inclinations especially when it
contravenes the power entrusted to us.

   This is one of those hard cases.

                               I

    Petitioner Theodore Washington’s petition for a writ of
habeas corpus was denied by the district court. He sought to
appeal, but his notice of appeal was filed one business day
late due to a paralegal’s error in calculating the filing
deadline. By the time this court issued an order to show
cause as to why the appeal should not be dismissed as
untimely, Washington had missed the thirty-day grace period
provided under Federal Rule of Appellate Procedure (FRAP)
4(a)(5) in which to file a motion for extension of time to file
an appeal. Rule 4(a) codifies the jurisdictional time limits on
the right to appeal imposed by Congress in 28 U.S.C. § 2107.
The statute provides:
38                     WASHINGTON V. RYAN

          Except as otherwise provided in this section,
          no appeal shall bring any judgment, order or
          decree in an action, suit or proceeding of a
          civil nature before a court of appeals for
          review unless notice of appeal is filed, within
          thirty days after the entry of such judgment,
          order or decree.

28 U.S.C. § 2107(a). In turn, the federal courts implemented
this statute in FRAP 4(a): “In a civil case, except as provided
in [this Rule], the notice of appeal required by Rule 3 must be
filed with the district clerk within 30 days after entry of the
judgment or order appealed from.” Fed. R. App. P. 4(a).

    Congress provided an exception to § 2107(a) in
§ 2107(c): “The district court may, upon motion filed not
later than 30 days after the expiration of the time otherwise
set for bringing appeal, extend the time for appeal upon a
showing of excusable neglect or good cause.” 28 U.S.C.
§ 2107(c).1 Again, the federal courts have implemented this



 1
     Section 2107(c) also provides as follows:

          In addition, if the district court finds—

          (1) 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

          (2) that no party would be prejudiced,

          the district court may, upon motion filed within 180
          days after entry of the judgment or order or within 14
          days after receipt of such notice, whichever is earlier,
          reopen the time for appeal for a period of 14 days from
                        WASHINGTON V. RYAN                            39

provision in FRAP 4(a)(5) and (6).2 See Obaydullah v.



          the date of entry of the order reopening the time for
          appeal.

28 U.S.C. § 2107(c).
 2
     Those rules provide, in relevant part:

          (5) Motion for Extension of Time.

          (A) The district court may extend the time to file a
          notice of appeal if:

          (i) a party so moves no later than 30 days after the time
          prescribed by this Rule 4(a) expires; and

          (ii) regardless of whether its motion if filed before or
          during the 30 days after the time prescribed by this
          Rule 4(a) expires, that party shows excusable neglect or
          good cause

          ....

          (C) No extension under this Rule 4(a)(5) may exceed
          30 days after the prescribed time or 14 days after the
          date when the order granting the motion is entered,
          whichever is later.

          (6) Reopening the Time to File an Appeal. The district
          court may reopen the time to file an appeal for a period
          of 14 days after the date when its order to reopen is
          entered, but only if all the following conditions are
          satisfied:

          (A) the court finds that the moving party did not receive
          notice under Federal Rule of Civil Procedure 77(d) of
          the entry of the judgment or order sought to be appealed
          within 21 days after entry;
40                    WASHINGTON V. RYAN

Obama, 688 F.3d 784, 789 (D.C. Cir. 2012) (per curiam).
The rule provides that a party must file a notice of appeal
within thirty days after the entry of judgment, with only two
narrow exceptions: (1) where a party can demonstrate
“excusable neglect,” the party may file a motion for an
extension of time up to thirty days after the date to timely
appeal, Fed. R. App. P. 4(a)(5); and (2) where a party fails to
receive notice of the judgment, the party may move to reopen
the time to file within 180 days after the entry of judgment,
or within fourteen days after receiving notice of the judgment,
whichever is earlier, Fed. R. App. P. 4(a)(6).

    Had Washington’s attorney realized his error earlier, he
could have sought an extension of time from the district court
under Rule 4(a)(5) and rectified the untimely filing.
However, having missed the time in which to seek an
extension, Washington filed a motion in the district court
under Federal Rule of Civil Procedure 60(b), asking the
district court to vacate and reenter its original judgment
denying his habeas petition. The intended effect of this
procedure was to restart the thirty-day period in which to
timely file an appeal—Washington was not, in fact, seeking
to amend or suspend any substantive part of the district
court’s order denying his petition. The district court denied
the motion, finding that Rule 60(b) could not be used solely
for the purpose of restarting the time to file an appeal. I
agree, and conclude that this court therefore lacks jurisdiction


         (B) the motion is filed within 180 days after the
         judgment or order is entered or within 14 days after the
         moving party receives notice under Federal Rule of
         Civil Procedure 77(d) of the entry, whichever is earlier;
         ....

Fed. R. App. P. 4(a)(5), (6).
                   WASHINGTON V. RYAN                      41

to entertain Washington’s untimely appeal. The U.S.
Supreme Court was clear in Bowles v. Russell, 551 U.S. 205
(2007), that the FRAP timely filing requirements are
“mandatory and jurisdictional,” id. at 209 (quotations
omitted), barring courts from creating equitable exceptions
that would allow an appeal where a party fails to comply with
these requirements, however “extraordinary” the
circumstances that precipitated the missed deadline. Today,
the majority chooses to ignore that holding by shoehorning an
essentially equitable exception to the jurisdictional
requirements of Rule 4(a) into Rule 60(b). Our jurisdiction
extends no farther than Congress has granted by statute,
Sheldon, 49 U.S. at 449, which in this case means the outer
limits of § 2107. That statute does not admit the exception
created by the majority.

                              A

    In Bowles, the Supreme Court held that the “timely filing
of a notice of appeal in a civil case is a jurisdictional
requirement,” because the Rule 4(a) filing requirements are
statutorily based in 28 U.S.C. § 2107. Bowles, 551 U.S. at
214. Likewise, the exceptions to the Rule 4(a) timely filing
requirements—Rules 4(a)(5) and 4(a)(6)—are based in
28 U.S.C. § 2107(c). Bowles dealt specifically with Rule
4(a)(6) and an equitable exception known as the “unique
circumstances” doctrine. Id. at 213. Bowles failed to file a
timely appeal from the district court’s denial of his petition
for a writ of habeas corpus. He sought, as permitted by Rule
4(a)(6), to reopen the period for filing his appeal, which
would have given him an additional fourteen days.
Inexplicably, the district court gave him seventeen days, and
he filed within that period, but after the fourteen-day period
had expired. Id. at 207. The Court held that Bowles’ appeal
42                 WASHINGTON V. RYAN

was late and must be dismissed because courts “[have] no
authority to create equitable exceptions to jurisdictional
requirements” in order to excuse an untimely filing. Id. at
214.

    The result in Bowles seemed particularly harsh given that
the untimely filing period was expressly authorized by district
court order. The Supreme Court still denied relief, noting that
“[i]f rigorous rules like the one applied today are thought to
be inequitable, Congress may authorize courts to promulgate
rules that excuse compliance with the statutory time limits.”
Id. But in the end, the Supreme Court “lack[ed] present
authority to make the exception petitioner seeks.” Id. at 215.
The issue was one of judicial power, not judicial will.

    Unlike Bowles, the case before us today deals with the
thirty-day grace period under Rule 4(a)(5) rather than the
180-day time limit in Rule 4(a)(6). The reasoning of Bowles,
however, clearly applies, because the thirty-day grace period
provided in Rule 4(a)(5) also derives from
28 U.S.C.§ 2107(c). If equitable exceptions cannot be made
to Rule 4(a)(6) because Rule 4(a)(6) is based in statute and
therefore jurisdictional, I see no principled basis for
distinguishing Rule 4(a)(5), and the majority offers none.
Moreover, the Court in Bowles spoke broadly about the Rule
4(a) timing requirements and exceptions—it did not base its
reasoning off any particular distinguishing feature of Rule
4(a)(6) such that the decision should not be read to apply to
Rule 4(a)(5) as well. The lesson to be drawn from Bowles is
that when Congress provides timely filing requirements,
courts are meant to stick to them, even where the resulting
consequences are harsh, as they admittedly are here.
                      WASHINGTON V. RYAN                              43

                                   B

    The majority argues that its decision today does no
violence to the principle announced in Bowles because its
decision here rests on Federal Rule of Civil Procedure 60(b),
and Rule 60(b) gives district courts the authority to relieve
parties from judgment. Here, the majority concludes that this
rule may be used not to amend or seek relief from a district
court judgment, as the rule is intended to be used, but to seek
relief only from the date of that judgment. Maj. Op. at 23.
Allowing the district court to vacate and reenter the exact
same judgment in order to enlarge the time to file an appeal
constitutes a misuse of Rule 60(b) and violates Bowles by
circumventing the statutory time frame governing appeals.3

    Unlike Rules 4(a)(5) and 4(a)(6), which are based in
statute, Rule 60(b) is a court-promulgated rule that gives
district courts the authority to provide relief from a final
judgment if a motion is filed “within a reasonable time” and
“not more than a year after the entry of the judgment.” Fed.
R. Civ. P. 60(c)(1). Relief may be afforded, among other
reasons, for mistake, excusable neglect, or extraordinary


  3
    The majority notes that Rule 4(a)(4) tolls the time to appeal where a
Rule 60(b) motion has been filed, and suggests that Rule 60(b) is an
embarrassment to my theory. Maj. Op. at 22 n.8. Where a Rule 60(b)
motion is used properly, it seeks to substantively amend the judgment,
thus rendering the original judgment un-final. In that case, there is no
longer anything to appeal from until the amended judgment is entered.
Rule 4(a)(4) simply recognizes this, and thus presents no conflict with
Rule 4(a)(5) or § 2107. This is also why a Rule 60(b) motion may be filed
up to a year after the entry of judgment without running afoul of the time
to appeal. But as I noted above, Washington in this case was not actually
seeking to alter or amend the judgment. He just wanted more time to file
an appeal.
44                     WASHINGTON V. RYAN

circumstances that justify relief. Fed. R. Civ. P. 60(b)(1), (6);
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 393 (1993) (holding that relief under Rule
60(b)(6) requires a party to show “‘extraordinary
circumstances’ suggesting that the party is faultless in the
delay”); Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168
(9th Cir. 2002). Under the majority’s reading, Rule 60(b)
subsumes Rule 4(a): if Rule 60(b) provides an avenue of
relief from an untimely appeal, then parties actually have up
to a year in which to seek an appeal, not thirty days as
provided by Rule 4(a)(5). Such a reading not only contradicts
Rule 4(a), but, more importantly, 28 U.S.C. § 2107, and the
contradiction is not easily resolved: Rule 60(b) is a claim-
processing rule, while Rule 4(a) is largely jurisdictional. But
rather than interpret these rules to avoid such a conflict, i.e.,
by concluding that Rule 60(b) simply does not provide relief
from an untimely filing of a notice of appeal, the majority
seeks to avoid what it perceives as an unfair result and
ignores the fact that its holding allows Rule 60(b) to be used
to circumvent the jurisdictional time limits of Rule 4(a).4


 4
    The majority states that I am “implied[ly] asserti[ng] that the Federal
Rules of Appellate Procedure have a superior statutory foundation than
that of the Federal Rules of Civil Procedure.” Maj. Op. at 12–13 n.2. No.
What I have said, and it bears repeating, is that the time limits in FRAP
4(a)(5) have a specific statutory basis, 28 U.S.C. § 2107, while Rule 60(b)
has no such statutory corollary. The majority seems to suggest that
because both the FRAP and the Rules of Civil Procedure were
promulgated under the Rules Enabling Act, see 28 U.S.C. § 2072, the two
rules have the same statutory basis, and therefore Rule 60(b) can be used
to circumvent Rule 4(a). Maj. Op. at 12–13 n.2. The problem that the
majority refuses to acknowledge is that its proposed use of Rule 60(b)
circumvents not only Rule 4(a)(5), but § 2107, a separate statute. No
court has ever held that the Rules Enabling Act gives courts the power to
promulgate rules to overturn other acts of Congress and expand the
jurisdictional limits that Congress has set.
                   WASHINGTON V. RYAN                         45

    The majority writes that, “[f]or decades, courts have
sparingly but consistently exercised their authority under
Rule 60(b) to restore appeal rights.” Maj. Op. at 23. It
appears to base its entire decision on the principle that Rule
60(b) gives district courts the general authority, based on
historical practice, to revive lost appeal rights. The
majority’s historical account of this use of Rule 60(b),
however, leaves a great deal to be desired. There was indeed
an historical practice of using Rule 60(b) to restart the time to
file an appeal in a very specific context: cases in which a
party never received notice of the district court’s final
judgment, and so missed the time to file an appeal because
the party was not aware that an appeal had become possible.
In Hill v. Hawes, 320 U.S. 520 (1944), the Supreme Court
appeared to depart from longstanding precedent when it held
that the district court in that case had the authority to vacate
and reenter its original judgment to restart the time to file an
appeal where the clerk of the court had failed to serve notice
of the judgment on the parties as required by Federal Rule of
Civil Procedure 77(d). Id. at 523–24; see also id. at 525–26
(Stone, C.J., dissenting) (listing cases in which the Court had
prohibited an extension of the time to file an appeal). The
Court reasoned that, while Rule 60 did “not in terms apply to
the situation,” it was acceptable for the trial judge to provide
relief “in the view that the petitioner relied upon the
provisions of Rule 77(d) with respect to notice.” Id. at 524.

    The majority interprets Hill to stand for the much broader
proposition that courts may use Rule 60(b) in any
circumstance that a court deems “extraordinary” in order to
46                     WASHINGTON V. RYAN

restart the time to file an appeal. Maj. Op. at 23.5 I see no
such broad proposition in that case; rather, as I have said, the
Court appeared to create a specific exception to the rule
against extending the time to file an appeal where a party
failed to receive notice of the judgment. It is also worth
noting that the Hill Court dealt with a court-promulgated rule
setting the time to file an appeal, not a statute that
conditioned jurisdiction on timely filing. Hill, 320 U.S. at
521–23. See generally Wright, Miller, et al., 16A Fed. Prac.
& Proc. Juris. § 3950.3 (4th ed. 2016) (discussing the history
of FRAP Rule 4). There was, in fact, a statute setting a three-
month statutory deadline for appeals at the time that case was

     5
      The majority concludes that this case involves “extraordinary”
circumstances and assures us that this is one of a “narrow band of cases,”
that our power will be used “sparingly,” and that it is a “rare case[],” one
of a “handful” of the thousands of cases decided each year. Maj. Op. 10,
16, 23, 32–33. There is really nothing extraordinary about attorneys
miscalculating filing deadlines—even by one day. It happens all the time.
See, e.g., Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007); Pincay v.
Andrews, 389 F.3d 853 (9th Cir. 2004) (en banc); Rouse v. Lee, 339 F.3d
238 (4th Cir. 2003) (en banc) (death penalty case); Hallgren v. U.S. Dep’t
of Energy, 331 F.3d 588 (8th Cir. 2003); Lattimore v. Dubois, 311 F.3d 46
(1st Cir. 2002); United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000);
Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d
552 (6th Cir. 2000). And there is no limiting principle if we allow this
exception.

         If 1-day late filings are acceptable, 10-day late filings
         might be equally acceptable, and so on in a cascade of
         exceptions that would engulf the rule erected by the
         filing deadline . . . Filing deadlines, like statutes of
         limitations, necessarily operate harshly and arbitrarily
         with respect to individuals who fall just on the other
         side of them, but if the concept of a filing deadline is to
         have any content, the deadline must be enforced.

United States v. Locke, 471 U.S. 84, 100–01 (1985).
                       WASHINGTON V. RYAN                                47

decided. See 43 Stat. 936, 940. But the three-month
statutory deadline was irrelevant in Hill, because the appeal,
although late under the D.C. Circuit’s twenty-day
rule—which the Court concluded the circuit had the authority
to set—had still been filed within the three-month deadline
set by Congress. Hill, 320 U.S. at 521–22 (noting that the
judgment was entered on May 7, 1940 and that the appeal
was filed on June 14, 1940). The Court therefore had no need
to address either the statute or any jurisdictional questions its
circumvention might have raised. Furthermore, in examining
the statutory deadline, the Court observed that the three-
month provision did not even apply to the D.C. Circuit,
because that court was governed by a separate statute. Hill,
320 U.S. at 522–23 (“[T]he statute conferring power on the
[D.C.] Court of Appeals to set the time for appeal was not
superseded by the legislation creating and defining the
jurisdiction of circuit courts of appeals.”).6 Either way, the

  6
    A bit of historical background is helpful in understanding the context
here. At the time Hill was decided in 1944, the Court of Appeals of the
District of Columbia—which would indeed become what we know as the
D.C. Circuit—was not yet considered one of the federal circuit courts of
appeal. In the Evarts Act of 1891, Congress separated the trial and
appellate functions for most of the federal courts in the United States,
creating our present system of federal district courts and the circuit courts
of appeal. See Act of Mar. 3, 1891, ch. 517, 26 Stat. 826. It did not adopt
this change for the courts in the District of Columbia, however, until two
years later. With the Act of February 9, 1893, Congress kept the Supreme
Court of the District of Columbia as a trial court, and created a new, three-
member Court of Appeals of the District of Columbia to exercise appellate
jurisdiction over the trial court. Act of Feb. 9, 1893, ch.74, § 7, 27 Stat.
434, 435–36. It did not become clear until 1933, however, that this trial
court and the new three-judge Court of Appeals were even Article III
courts, as opposed to Article I “legislative” courts. See O’Donoghue v.
United States, 289 U.S. 516, 549, 551 (1933). And it was not until
1948—four years after Hill—that Congress designated D.C. as one of the
eleven judicial circuits of the United States, and re-named the Court of
48                     WASHINGTON V. RYAN

problem identified in Bowles with circumventing a
congressionally mandated time frame was not an issue in
Hill.

    Hill is irrelevant for another reason: A similar exception
has now been codified in § 2107. See 28 U.S.C. § 2107(c)(1)
(providing relief for “a party entitled to notice of the entry of
a judgment or order [who] did not receive such notice”).
Section 2107 then limits the time within which relief can be
granted to the party. If Hill once stood for anything relevant
to this case, it has been superceded by statute. Indeed, Hill
has also been superceded by rule. Federal Rule of Civil
Procedure 77(d)(2) provides that “[l]ack of notice of the entry
does not affect the time for appeal or relieve—or authorize
the court to relieve—a party for failing to appeal within the
time allowed, except as allowed by Federal Rule of Appellate
Procedure 4(a).” This rule, which binds the district court,
prohibits the powers exercised by the Court in Hill. The 1946
Advisory Notes to Rule 77 state that

         Rule 77(d) has been amended to avoid such
         situations as the one arising in Hill v.
         Hawes. . . . [T]he effect of the decision in Hill
         v. Hawes is to give the district court power, in
         its discretion and without time limit, . . . to
         vacate a judgment and reenter it for the



Appeals for the District of Columbia the United States Court of Appeals
for the District of Columbia Circuit. Act of June 25, 1948, ch. 646, §§ 41,
45, 62 Stat. 869, 870–71; see also Susan Low Bloch & Ruth Bader
Ginsburg, Celebrating the 200th Anniversary of the Federal Courts of the
District of Columbia, 90 Geo. L.J. 549, 559–61 (2002); see generally,
John G. Roberts, Jr., What Makes the D.C. Circuit Different? A Historical
View, 92 Va. L. Rev. 375 (2006).
                   WASHINGTON V. RYAN                         49

        purpose of reviving the right of appeal. This
        seriously affects the finality of judgments.

Fed. R. Civ. P. 77 Advisory Committee Notes.

    What the majority has done is take Hill’s narrow
exception and make it limitless. It takes the holding of
Hill—which Congress has superceded by statute and which
the federal courts have addressed by rule—and finds
additional authority in that decision. In the process, it ignores
§ 2107, upends Rules 4 and 77, and overrules, sub silentio,
our own prior, considered decisions. See In re Stein,
197 F.3d 421, 426 (9th Cir. 1997) (“Rule 4(a) and Rule 77(d)
now form a tessellated scheme; they leave no gaps for Rule
60(b) to fill.”). It is a daring and brazen move.

    Nor have the lower courts, in the years since Hill was
decided, interpreted that case as broadly as the majority does
today. The majority cites few cases in support of the
proposition that Rule 60(b) may be used to circumvent
appellate filing periods that do not involve situations in which
a party failed to receive notice of judgment, save two from
the Sixth Circuit, see Tanner v. Yukins, 776 F.3d 434 (6th Cir.
2015); Lewis v. Alexander, 987 F.2d 392 (6th Cir. 1993), and
two involving “attorney abandonment,” which is not at issue
here, see Ramirez v. United States, 799 F.3d 845 (7th Cir.
2015); Mackey v. Hoffman, 682 F.3d 1247 (9th Cir. 2012).
Maj. Op. at 16–19. Indeed, I have found no other cases in
which courts have held that Rule 60(b) may be used to
circumvent the time for filing an appeal where a party missed
the filing deadline for reasons other than lack of notice of the
lower court judgment or attorney abandonment—whether
those reasons are mistake, neglect, or some other
“extraordinary circumstance.”
50                    WASHINGTON V. RYAN

    Several courts, in fact, held before Bowles that Rule 60(b)
may not be used to circumvent timely filing deadlines in non-
lack-of-notice cases. The Third, Fifth, Seventh, and Eleventh
Circuits have all discussed at length why relief is not
available under any provision of Rule 60(b) in order to restart
the time to file an appeal. See, e.g., Jackson v. Crosby, 437
F.3d 1290, 1296 (11th Cir. 2006) (per curiam); Saudi Basic
Indus. Corp. v. Exxon Corp., 364 F.3d 106, 111–12 (3d Cir.
2004) (citing West v. Keve, 721 F.2d 91 (3d Cir. 1983));
Dunn v. Cockrell, 302 F.3d 491, 492–94 (5th Cir. 2002) (per
curiam); Bell v. Eastman Kodak Co., 214 F.3d 798, 800–02
(7th Cir. 2000).

    As the Third Circuit pointed out in West, 721 F.2d at
96–97, Rule 4(a) is a specific rule of appellate procedure, one
that is based on a statute which governs the time in which
appeals must be taken, see 28 U.S.C. § 2107. Rule 60(b), on
the other hand, is a court-promulgated general procedural rule
that applies to the district courts, providing for relief from
judgments. The Third Circuit concluded that under the
general/specific canon of construction, Rule 4(a), not Rule
60(b), controls the time to appeal, because Rule 4(a) is
specific to the timing of appeals. Id. The court concluded
that this was so despite the “inequitable results that may flow
from a strict application of the harsh time constraints in Rule
4(a).” Id. at 96. The court also pointed out that “to allow a
party to rely on Rule 60(b) as an alternative to the time
constraints of Rule 4(a) would have the substantive effect of
nullifying the provisions of Rule 4(a)(5).” Id.7


     7
     The majority cites the Third Circuit’s decision in Burkett v.
Cunningham, 826 F.2d 1208, 1217 (3d Cir. 1987), abrogated on other
grounds by Betterman v. Montana, 136 S. Ct. 1609 (2016), for the
proposition that “exceptional circumstances” may justify relief under Rule
                       WASHINGTON V. RYAN                               51

    The Fifth and Eleventh Circuits agreed for similar
reasons. See Dunn, 302 F.3d at 492–93; Jackson, 437 F.3d at
1296.8 The Fifth Circuit additionally noted that relief is
limited under Rule 4(a)(5) to protect the finality of
judgments, and that this is particularly important where, as
here, “the movant neither complains of any denial of a full
and fair hearing before the district court nor seeks by the
ruling to have the district court alter its ruling, but rather asks
only that the order be vacated and reentered.” Dunn,
302 F.3d at 493 (quoting United States v. O’Neil, 709 F.2d
361, 373 (5th Cir. 1983)). In such a situation, where the Rule
60(b) motion “is avowedly being used only to extend the time
for appeal,” it “squarely collides with Rule 4(a)(5),” and
therefore is impermissible. Id.




60(b) despite failure to comply with the Rule 4(a) timing requirements.
Maj. Op. at 19–20. What the majority leaves out is that the “exceptional
circumstances” to which the court referred is the fact that Burkett never
received notice of the entry of the final order he was attempting to appeal
from; the notice was sent to an incorrect address. Burkett, 826 F.2d at
1216–17. In other words, this is simply another lack-of-notice case. At
the time, the exception in Rule 4(a)(6) specifically addressing lack-of-
notice situations had not yet been added to Rule 4(a); hence, the Third
Circuit was relying on the historical lack-of-notice exception discussed
above.
   8
     Dunn and Jackson were both capital habeas cases. Dunn’s attorney
filed his notice of appeal four days late. Dunn, 302 F.3d at 492. Jackson’s
attorney filed an untimely Rule 59(e) motion, which meant that it was
inoperative to toll the filing period for a notice of appeal of the district
court’s denial of his habeas petition. Jackson didn’t realize this until the
Eleventh Circuit dismissed his initial appeal, at which point he sought
relief in the district court under Rule 60(b) to restart the filing period.
Jackson, 437 F.3d at 1292. Thus, we are not the only court that has had
to address this issue in this freighted context.
52                     WASHINGTON V. RYAN

    The Eleventh and Seventh Circuits likewise touched on a
similar issue, noting that the purpose of Rule 60(b) is to
challenge an error made by the district court; therefore, using
Rule 60(b) as a substitute for a timely appeal goes “outside
the scope of the rule.” Bell, 214 F.3d at 801–02; see also
Jackson, 437 F.3d at 1296 (“Petitioner was not asking for
relief from any order of the district court, but was instead
attempting to resuscitate the time to file an appeal by asking
the district court to circumvent an order from this court
dismissing the appeal as untimely.”).

     Based on these cases alone, I would be reluctant to
conclude that Rule 60(b) provides an avenue for relief in the
situation we face here: not a lack-of-notice case, but a case in
which the petitioner’s attorney negligently failed to timely
file. The weight of pre-Bowles case law does not appear to
support such an extension of this practice. In fact it suggests
the opposite: that, contrary to the majority’s opinion, Rule
60(b) cannot be, and has not been, used in the manner the
majority uses it in this case.9


   9
     The majority argues briefly that the Supreme Court’s decision in
Browder v. Director, Dep’t of Corrections, 434 U.S. 257 (1978), on which
Bowles relied for the proposition that Rule 4(a) time limits are
jurisdictional, see Bowles, 551 U.S. at 209–10, supports its decision today.
Maj. Op. at 22. It does not. Browder reached the unremarkable
conclusion that a post-judgment motion for a new evidentiary hearing in
a habeas proceeding, which the Court construed as an untimely Rule 59
motion, could not be used to toll the time to file an appeal. Id. at 264–65,
271–72. The original judgment granting habeas was issued in October,
and the district court agreed to hold the post-judgment evidentiary hearing
in a December 8 order, but ultimately denied the state relief after holding
the hearing in January, a decision from which the state then appealed. The
Court found that the appeal was untimely because the untimely motion had
not tolled the time to appeal. The concurrence, on which the majority
relies, Maj. Op. at 23, merely pointed out that if the state’s motion for the
                        WASHINGTON V. RYAN                                 53

    But in light of Bowles, I fail to see how a claim-
processing rule like Rule 60(b) can legitimately be used to
avoid a jurisdictional, statutory filing requirement, and the
majority has offered no explanation on this point. Post-
Bowles, two circuits have addressed the interaction between
the Supreme Court’s decision and Rule 60(b). In In re Sealed
Case (Bowles) (a different Bowles), the D.C. Circuit rejected
the argument that Rule 60(b) could be used to circumvent the
time limits of Rule 4(a)(6), which provides for a 180-day
extension of the time to file an appeal where a party never
received notice of the lower court judgment. 624 F.3d 482,
486–88 (D.C. Cir. 2010). The appellant in that case argued
that Rule 60(b) is a “court-promulgated rule” in which time
limits are not jurisdictional, and that it could be used to afford
relief from the time limit imposed by Rule 4(a). The D.C.
Circuit disagreed. It observed that “the [Supreme] Court has
never held that a party could use a court-promulgated rule to
circumvent the jurisdictional bar on limits for reopening the
time to appeal enacted by Congress,” and that allowing relief
under Rule 60(b) would do just that. Id. at 486. Because
“[t]he Court [in Bowles] spoke in unequivocal and
uncompromising terms in stating that courts lacked power to



post-judgment evidentiary hearing were construed as a Rule 60(b) motion,
the district court’s December 8 order could have been construed as
granting Rule 60(b) relief setting aside the original October judgment,
because the district court clearly intended to reopen the judgment by
holding the evidentiary hearing. Browder, 434 U.S. at 272–73 (Blackmun,
J., concurring). Had the Court instead construed the district court’s order
in such a way, the state’s appeal would then have been timely as an appeal
from the reentry of judgment after the evidentiary hearing was held. Id.
at 273. Nothing in this case suggests that the state could have moved
under Rule 60(b) to vacate and reenter the judgment solely for the purpose
of restarting the time to file an appeal, without seeking to alter the original
judgment.
54                 WASHINGTON V. RYAN

carve out equitable exceptions to jurisdictional statutory
requirements. . . . it would be difficult to imagine that the
Court would not also view the use of Rule 60(b)” to
circumvent the Rule 4(a) filing requirements as
“illegitimate.” Id. at 486–87 (quoting Bowles, 551 U.S. at
214).

    The Fifth Circuit agrees. In Perez v. Stephens, 745 F.3d
174, 178–81 (5th Cir. 2014), the court revisited its decision
in Dunn in light of Bowles, and concluded that Bowles
provided even stronger support for the conclusion that Rule
60(b) could not be used to circumvent the timely filing
requirements of Rule 4(a)(5). In Perez, the court dealt
specifically with whether relief from an untimely appeal was
available under Rule 60(b)(6), the “extraordinary
circumstances” exception. The court recognized that
§ 2107—the statute on which Rule 4(a) is based—contains no
“extraordinary circumstances” exception, or any exception
other than the two implemented in Rule 4(a)(5) and Rule
4(a)(6). Id. at 179. Hence, the court reasoned that “Congress
does not intend for any exceptions, other than the ones
already codified, to be used by parties to avoid strict
compliance with appellate deadlines.” Id. Accordingly, the
use of Rule 60(b) would contravene the clear rule in Bowles
that courts cannot create exceptions to statutorily-based
jurisdictional requirements. Id. The court cited several
unpublished dispositions from other circuits in light of
Bowles, as well as the D.C. Circuit’s published decision in the
In re Sealed case, that reached the same conclusion. Id. at
180 (citing cases).

    The only circuit to agree with the majority’s position
today is the divided decision of the Sixth Circuit in Tanner v.
Yukins, 776 F.3d 434 (6th Cir. 2015). Tanner reaffirmed the
                   WASHINGTON V. RYAN                         55

Sixth Circuit’s pre-Bowles decision in Lewis v. Alexander, in
which the court held that Rule 60(b) could be used to restart
the time to file an appeal where a party’s attorney had
inadvertently untimely filed and did not realize this until after
the thirty-day grace period in Rule 4(a)(5) had expired. See
Tanner, 776 F.3d at 443–44; Lewis, 987 F.2d at 394–96. In
Tanner, prison guards prevented a habeas petitioner from
getting to the library to sign her notice of appeal during a
prison lockdown. Tanner, 776 F.3d at 436. She signed it and
sent it the next day, but the notice was already untimely. Of
course, she failed to realize this during the thirty-day grace
period provided by Rule 4(a)(5). Id. at 437. Tanner brought
a 1983 suit against the prison guards for causing the untimely
filing of her notice of appeal, and won. She then sought relief
from the untimely filing under Rule 60(b), and the Sixth
Circuit concluded that she had shown “extraordinary
circumstances” because of the guards’ conduct. But the court
distinguished Bowles along the same superficial lines that the
majority does here, noting only that Bowles dealt with the
exception under Rule 4(a)(6) and said nothing about Rule
60(b), and without discussing the nearly identical statutory
basis for Rule 4(a)(5). Id. at 438–41. Ironically, the court
might have shown its hand when it remarked that the
petitioner in Tanner was “deserving of an equitable
outcome.” Id. at 443. In short, Tanner offers no reasoned
argument that would support the majority’s position here.

    The majority’s reliance on our decision in Mackey v.
Hoffman is equally unpersuasive. Mackey is, at best,
irrelevant to the circumstances of this case, and at worst, a
deeply flawed decision that conflicts with the Supreme
Court’s decision in Bowles. Mackey held that “attorney
abandonment” constitutes an extraordinary circumstance
under Rule 60(b)(6) justifying relief from judgment in order
56                 WASHINGTON V. RYAN

to extend the time to file an appeal. Mackey, 682 F.3d at
1253–54. Mackey’s attorney stopped pursuing his case
without informing him after Mackey’s parents stopped paying
his legal fees, and as a result, Mackey missed the deadline to
file a notice of appeal from the district court’s denial of his
habeas petition. Id. at 1248–50.

    In finding that Rule 60(b) could be used to extend the
time to file an appeal due to the attorney’s misconduct, the
panel relied on the Supreme Court’s decision in Maples v.
Thomas, which held that attorney abandonment could
constitute sufficient cause to lift a state procedural bar to
federal habeas review. 132 S. Ct. 912, 927 (2012). State
procedural bars may be excused where a petitioner can
demonstrate cause for the procedural default that was beyond
his control, and actual prejudice from the violation of federal
law. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In Maples, the petitioner’s attorneys changed jobs and
stopped pursuing the case, without ever informing the
petitioner, and as a result, the petitioner missed a state filing
deadline. 132 S. Ct. at 919–20. The Supreme Court noted
that generally, attorney negligence does not excuse a
petitioner’s default, but that the situation was different where
“an attorney abandons his client without notice, and thereby
occasions the default.” Id. at 922. Accordingly, the Court
found that the petitioner had demonstrated sufficient cause to
excuse the state procedural bar. Note, however, that Maples
dealt with an equitable exception to the judge-created, i.e.,
non-jurisdictional, procedural bar doctrine. Id. at 922. It had
nothing to do with jurisdictional time limits, Bowles, or Rule
60(b), and therefore presents a rather uncertain basis on
which to justify what the panel did in Mackey: bypass a
jurisdictional time limit using Rule 60(b).
                       WASHINGTON V. RYAN                               57

    Mackey, unlike Maples, implicated the jurisdictional
problem addressed in Bowles, and that we face here today.
Like the Sixth Circuit and like the majority here, the Mackey
panel dealt with Bowles in the same facile manner, dismissing
Bowles because Bowles dealt with the notice of judgment
problem addressed by Rule 4(a)(6), again without considering
the identical statutory basis behind Rule 4(a)(5). Mackey,
682 F.3d at 1253. I am therefore deeply skeptical that
Mackey was correctly decided in the wake of Bowles.10

    Even assuming, however, that Mackey is correct, there
was no attorney abandonment in Washington’s case, making
Mackey inapplicable here. Even Washington does not argue
that his attorney “abandoned” him by miscalculating a filing
deadline and filing the notice of appeal one business day
late.11 As I noted in footnote 5, supra, this kind of mistake is
far from “extraordinary”—it is simple negligence that is,
unfortunately, all too common. There is nothing exceptional
about this case that warrants an extension of Mackey.




 10
   The Seventh Circuit recently followed the Mackey decision in Ramirez
v. United States, 799 F.3d 845, 854 (7th Cir. 2015), a similar attorney
abandonment case. The reasoning in Ramirez is, in some ways, even more
puzzling than that in Mackey. Ramirez likewise relies on a number of
Supreme Court cases dealing with the procedural bar doctrine, as well as
cases regarding AEDPA’s prohibition on successive habeas petitions, to
justify using Rule 60(b) to restart the time to file an appeal. Ramirez does
not even mention Bowles.
  11
     In fact, the panel in this case remanded the case to the district court
after Mackey was decided to determine whether Washington had suffered
attorney abandonment. The district court concluded that he had not.
Washington has not challenged this finding in the current en banc
proceedings.
58                 WASHINGTON V. RYAN

                              C

    The majority concludes that Bowles has no bearing on this
case because Bowles did not disturb the historical practice of
using Rule 60(b) to extend the time to file an appeal. But the
historical practice on which the majority relies is dubious at
best; there is a slew of case law that weighs against the
extension of this practice to the situation before us in this
case. However, even if the majority is correct as to how Rule
60(b) was once used, Bowles makes crystal clear that such a
practice is no longer an option. There is no difference
between creating an “equitable exception” to the time limits
in Rule 4(a) and using Rule 60(b) to “restore the opportunity
to appeal,” Maj. Op. at 12: both mechanisms extend the time
to file an appeal past the time limit that has been set by
Congress, time limits which the Supreme Court has
concluded are jurisdictional. The majority’s attempt to
suggest otherwise is utterly unconvincing. I am persuaded
that Rule 60(b) simply does not provide relief from the
untimely filing of a notice of appeal.

                              II

    Lastly, I wish to remark on the argument made by the
majority regarding an “error” made by the district court in
this case in failing to promptly notify the circuit that
Washington had filed a notice of appeal. At the time
Washington filed his notice of appeal, Rule 3(d) of the FRAP
required the district court to “promptly send a copy of the
notice of appeal” to the circuit court. Fed. R. App. P. 3(d).
However, Rule 3(d) did not specify a time within which the
district court must act. The rule did not even identify from
which point the district court’s “promptness” is to be
measured—whether the notice must be “promptly” forwarded
                   WASHINGTON V. RYAN                         59

upon the district court’s receipt of it, or “promptly” upon
occurrence of some other event. FRAP 22(b)(1), which has
since been amended, required the district court to “send the
certificate [of appealability] or statement [why a certificate
should not issue] to the court of appeals with the notice of
appeal and the file of the district court proceedings.” Fed. R.
App. P. 22(b)(1) (1998). The district court clerk in this case
waited until the district court had ruled on Washington’s
certificate of appealability—a prerequisite to our
jurisdiction—before sending the certificate of appealability,
together with the notice of appeal and the district court
record, to this court, as Rule 22(b) required.

    The majority concludes that this was error, because the
district court clerk did not “promptly” send the notice of
appeal to the circuit as soon as the notice of appeal was filed,
but rather waited until the certificate of appealability had
issued. Moreover, the majority argues, this error prejudiced
Washington: if the district court clerk had sent the notice of
appeal to the circuit as soon as it was filed, our clerk’s office
would have issued an order to show cause earlier, and
Washington’s attorney might have realized the appeal was
late in time to request an extension of time to file an appeal
within the thirty-day grace period provided by Rule 4(a)(5).
Maj. Op. at 30–31.          In other words, Washington’s
negligence—or that of his attorney—was all the district
court’s fault, because the district court clerk “prevent[ed]”
Washington from being able to timely file. Maj. Op. at 5, 8,
20, 28, 28 n.10.

    This is an extraordinary statement by the majority. I have
no interest in opining on a version of the FRAP that no longer
exists, but the majority’s argument on this issue is so strained
that I am compelled to briefly address it. At the time, the
60                  WASHINGTON V. RYAN

district court was not required, as it is now, to issue or deny
a certificate of appealability at the same time it issued its final
order regarding the merits of the habeas petition. See Fed. R.
App. P. 11(a). It was apparently common practice for our
district courts to issue an order addressing the petition on the
merits, and then separately address the certificate of
appealability, sometimes weeks or months later. Under the
majority’s new reading of FRAP 3, the district court clerk
was required to forward the notice of appeal to the circuit
court twice: first, when the notice of appeal was initially
filed, in order to comply with Rule 3(d), and second, after the
certificate of appealability was issued, in order to comply
with Rule 22(b)(1). This makes no sense. As the majority
acknowledges, the notice of appeal and the certificate of
appealability, when forwarded together, give the circuit court
clerk notice of the transfer of jurisdiction of the case. Maj.
Op. at 29; Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir.
1992). But without the certificate of appealability, the circuit
has no jurisdiction. What, then, would be the purpose of
forwarding the notice of appeal before the certificate of
appealability issues? To inform the circuit that jurisdiction
may transfer in the future? The majority cites no relevant
case law from any court in support of this novel reading of
the rules. The one case the majority cites in support of its
proposition is Yadav v. Charles Schwab & Co., 935 F.2d 540
(2d Cir. 1991), a non-habeas civil case, meaning that Rule
22(b) was not implicated there as it is here. Certainly I do not
disagree with the holding of Yadav that when only Rule 3 is
in play, Rule 3 requires the district court clerk to forward the
notice of appeal to the circuit court sooner rather than later.
But the issue here is how Rule 22(b)’s requirement of a
certificate of appealability—including the certificate of
appealability’s attendant effect upon our jurisdiction—
                    WASHINGTON V. RYAN                          61

informs the operation of Rule 3 in the specific context of
habeas cases.

    Although the rules may have been inartfully drafted, an
alternative, more logical reading of the rules—one the
majority does not even consider—is that the rules required
the district court clerk to “promptly” forward the notice of
appeal once the certificate of appealability issued, not once
the notice of appeal was filed. Such a reading harmonizes the
two seemingly contradictory directions provided in the
FRAP. Rule 22 is specific to the habeas context, while Rule
3 applies generally to notices of appeal in all cases.
Presumably, in non-habeas cases—in cases where no
certificate of appealability is required—the district court
would “promptly” forward the notice of appeal to the circuit
court as soon as the notice was filed. But in the habeas
context, Rule 22 appears to give more specific
instructions—to forward the notice of appeal with the
certificate of appealability—thus requiring the court clerk to
wait until the certificate of appealability actually issued.
Once the certificate of appealability issued, the clerk could
then “promptly” forward the notice of appeal together with
the certificate of appealability and the record to the circuit
court, as Rule 22(b) required. That is exactly what the district
court clerk did here, and I see no reason to accuse the district
court of error in an underdeveloped argument based on a
reading of the FRAP with no support in logic or case law.

     Even assuming, however, that the district court clerk did
err in its reading of the rules, Bowles tells us that this does not
matter. In Bowles, the late filing really was the district
court’s fault, as the district court gave the petitioner an extra
three days past the permitted extension period, and the
petitioner relied on this extension. The Supreme Court held
62                     WASHINGTON V. RYAN

that this was irrelevant, given the jurisdictional nature of the
time limits at issue. Bowles, 551 U.S. at 207, 214. The
situation in this case is no different. If anything, it is less
sympathetic. In Bowles, the defendant followed what the
district court told him he should do. Here, counsel made his
own mistake and might have been alerted to his error if the
district court had forwarded the notice of appeal to this court
and if we issued a prompt order to show cause within the
thirty day grace period.12 Neither counsel’s error nor the
timing of the district court’s forwarding of the notice of
appeal can avoid the time for filing an appeal.

                                    III

     In short, the majority has offered no reasoned explanation
for its decision to ignore the Supreme Court’s dictate in
Bowles, the text of Rule 60(b) and Rule 4(a), or the reasoning
of our sister circuits. It has utterly failed to explain how a
claim-processing rule like Rule 60(b) can be used to
undermine a jurisdictional, statutory filing requirement
promulgated by Congress. And it ignores the consequences
of its decision today: that in allowing relief under Rule 60(b)
from an untimely appeal, the court puts a hole right through
the Rule 4(a) timing requirements, now giving parties up to
a year to attempt to pursue an appeal. That cannot be correct.
And while I am sympathetic to the petitioner’s particular
plight in this case, I note that federal courts regularly and

 12
    The majority, however, has identified no statute or rule requiring this
court to provide notice—in the form of an order to show cause why the
appeal should not be dismissed—that an appeal is untimely. Even if the
majority’s reading of FRAP 3 and 22 were correct, the district court’s
timing in forwarding the notice of appeal did not deprive Washington of
any notice to which he was entitled. Nothing in the district court’s actions
“prevented” Washington’s counsel from filing a timely notice of appeal.
                       WASHINGTON V. RYAN                               63

completely preclude review in federal habeas cases—even
capital cases—where a would-be habeas petitioner fails to
timely file within the one-year statute of limitations. See,
e.g., Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)
(declining to apply equitable tolling to a habeas petition in a
death penalty case where the petitioner’s attorney
miscalculated the statute of limitations)13; Pace v.
DiGuglielmo, 544 U.S. 408, 418–19 (2005) (declining to
apply equitable tolling to a petitioner sentenced to life
without parole); Damren v. Florida, 776 F.3d 816, 821–22
(11th Cir. 2015) (per curiam) (declining to apply equitable
tolling to a habeas petition in a capital case); Rouse v. Lee,
339 F.3d 238, 243 (4th Cir. 2003). I would affirm the
judgment of the district court.14 As I said at the outset, I take
no pleasure in that judgment, but it is the judgment required
by law.

      I respectfully dissent.




   13
       See Lawrence, 549 U.S. at 336–37: “Lawrence argues that his
counsel’s mistake in miscalculating the limitations period entitles him to
equitable tolling. If credited, this argument would essentially equitably
toll limitations periods for every person whose attorney missed a deadline.
Attorney miscalculation is simply not sufficient to warrant equitable
tolling, particularly in the post-conviction context where prisoners have
no constitutional right to counsel.”
 14
     I note as well, that although the majority concludes the district court
was wrong when it found that it did not have the power to use Rule 60(b)
to reopen the time to file an appeal, rather than remanding to the district
court to reconsider whether Rule 60(b) relief is warranted in light of our
new holding, the majority just concludes that it is. Thus we engage in a
bit of self-help, expanding our own jurisdiction by concluding that the
district court simply abused its discretion by not affording relief.
64                 WASHINGTON V. RYAN

WATFORD, Circuit Judge, dissenting:

     I join Judge Bybee’s dissent, but like him I take no
pleasure in voting to dismiss Theodore Washington’s appeal.
Dismissing the appeal because his lawyer filed the notice one
day late strikes me as a grave injustice in the circumstances
of this case. We are nonetheless compelled to take that action
because Bowles v. Russell, 551 U.S. 205 (2007), held that the
filing deadline for civil appeals is jurisdictional and thus not
subject to equitable exceptions. Id. at 214. I offer a few
thoughts below as to why that holding is worth revisiting,
should the Supreme Court decide to take up the issue.

     To begin with, neither of the rationales offered by the
Court to support the decision in Bowles is sound. The Court
relied in part on the fact that Congress itself set the filing
deadline for civil appeals in a statute, 28 U.S.C. § 2107,
rather than delegating authority to the courts to set the
deadline by court rule. 551 U.S. at 210–13. But that fact
proves nothing, really, about what Congress intended. Just
because Congress can limit the jurisdiction of federal courts
by statute does not mean that it intends every filing deadline
fixed by statute to be of jurisdictional stature. We know that
to be true because most of the filing deadlines set by
Congress in federal statutes of limitations (a close analog
here) have been held to be non-jurisdictional. See, e.g.,
United States v. Wong, 135 S. Ct. 1625, 1632–33 (2015);
Holland v. Florida, 560 U.S. 631, 645 (2010); Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 93–96 (1990).
Thus, as the Supreme Court has explained, we would need
some clear indication from Congress that it meant a particular
filing deadline to be treated as jurisdictional beyond the fact
that the deadline appears in a statute. Wong, 135 S. Ct. at
                   WASHINGTON V. RYAN                       65

1632. As I will explain shortly, no such indication appears
with respect to the time limits set by § 2107.

     The other rationale for Bowles’ holding cannot support
the decision standing alone. The Court relied on its long
historical practice, reflected in cases dating back more than a
century, of treating deadlines for filing appeals from one
court to another as jurisdictional. 551 U.S. at 209–10. The
precedents the Court cited, including United States v.
Robinson, 361 U.S. 220 (1960), do indeed refer to appellate
filing deadlines as “jurisdictional.” Id. at 224. But each of
those cases was decided before 2004, the year the Court
began to correct what had been, in past cases, its “less than
meticulous” use of the term “jurisdictional.” Kontrick v.
Ryan, 540 U.S. 443, 454 (2004). Beginning with Kontrick,
the Court articulated a more precise definition of the term,
one limited to requirements that describe the classes of cases
a court is competent to adjudicate. Id. at 455; Scarborough
v. Principi, 541 U.S. 401, 413–14 (2004). Just two years
before Bowles was decided, the Court identified Robinson as
a chief source of the prior confusion and explicitly disavowed
Robinson’s flawed conception of the meaning of
“jurisdictional.” Eberhart v. United States, 546 U.S. 12, 16
(2005) (per curiam).

    While Bowles left the Court’s law “incoherent” the day it
was decided, 551 U.S. at 220 (Souter, J., dissenting), Bowles
has become even more of an outlier since then. With one
exception, the Court’s post-Bowles cases have routinely held
statutory filing deadlines to be non-jurisdictional. See, e.g.,
Wong, 135 S. Ct. at 1632–33; Sebelius v. Auburn Regional
Medical Center, 133 S. Ct. 817, 824–26 (2013); Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 441 (2011);
Holland, 560 U.S. at 645. (The one exception is John R.
66                 WASHINGTON V. RYAN

Sand & Gravel Co. v. United States, 552 U.S. 130 (2008),
which, much like Bowles, rested entirely on stare decisis
grounds, not on an analysis of the statute under the Court’s
current framework for determining whether a requirement is
of jurisdictional stature. See Wong, 135 S. Ct. at 1636.)
Bowles sticks out as an unprincipled exception to this trend,
and it has justifiably been the subject of academic criticism
for that reason. See, e.g., Scott Dodson, The Failure of
Bowles v. Russell, 43 Tulsa L. Rev. 631, 634–43 (2008); Erin
Morrow Hawley, The Supreme Court’s Quiet Revolution:
Redefining the Meaning of Jurisdiction, 56 Wm. & Mary L.
Rev. 2027, 2051–59 (2015); Howard M. Wasserman, The
Demise of “Drive-By Jurisdictional Rulings,” 105 Nw. U. L.
Rev. 947, 964–66 (2011).

    Bowles’ holding cannot be reconciled with the Court’s
current view of what it means for a requirement to be
jurisdictional. An appellate filing deadline does not define
the classes of cases federal courts of appeals are competent to
adjudicate; it merely sets a time limit on a procedural step
necessary to move the litigation forward. The Court has
observed on more than one occasion that “time prescriptions,
however emphatic, are not properly typed ‘jurisdictional.’”
Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006) (internal
quotation marks omitted).

    If the time limits set by § 2107 were analyzed under the
approach employed in the Court’s most recent cases, they
would undoubtedly be ranked as non-jurisdictional.
Section 2107 contains no clear statement of Congress’
intention to make the filing deadline for civil appeals
jurisdictional; the statute’s language is no more emphatic, and
no more jurisdictional in tone, than any of the other filing
deadlines that the Court has held to be non-jurisdictional. See
                   WASHINGTON V. RYAN                         67

Wong, 135 S. Ct. at 1632–33; Auburn Regional, 133 S. Ct. at
824. The fact that Congress left undisturbed a long line of the
Court’s cases that (erroneously) ranked appellate filing
deadlines as jurisdictional cannot transform the plainly non-
jurisdictional language of § 2107 into a clear statement that
the time limits specified there were intended to be
jurisdictional. I cannot think of any other area in which the
Court, having imposed a clear statement rule, has then been
willing to accept congressional silence or inaction as adequate
to satisfy the rule.

    Nor does § 2107’s placement within the broader statutory
scheme reflect an intention to make the time limits
jurisdictional. Section 2107 appears in a part of Title 28
entitled “Procedure,” not in the part entitled “Jurisdiction and
Venue” that contains the provisions governing appellate
jurisdiction (such as §§ 1291 and 1292). The Court has relied
on precisely this sort of placement decision when holding
other filing deadlines to be non-jurisdictional. Wong, 135 S.
Ct. at 1633; Henderson, 562 U.S. at 439.

    Legislative history, another tool that the Court has used in
this area, see Wong, 135 S. Ct. at 1633, also offers no clear
indication that Congress intended the time limits in § 2107 to
be treated as jurisdictional, rather than as run-of-the-mill time
prescriptions. In fact, § 2107’s legislative history reveals that
Congress fixed the section’s particular time limits based on
a pre-existing court rule, to which Congress merely sought to
conform the statutory provision. See 16A Charles Alan
Wright et al., Federal Practice and Procedure § 3950.1, at
186–88 (4th ed. 2008).

    Finally, appellate filing deadlines fit precisely within the
definition of what the Court has called “claim-processing
68                 WASHINGTON V. RYAN

rules,” that is, “rules that seek to promote the orderly progress
of litigation by requiring that the parties take certain
procedural steps at certain specified times.” Henderson,
562 U.S. at 435. As the Court’s recent cases make clear,
claim-processing rules are “[a]mong the types of rules that
should not be described as jurisdictional.” Id.

    In sum, Bowles stands on shaky ground and merits
reconsideration. Nevertheless, it controls here and, if
faithfully applied, requires us to dismiss Washington’s appeal
as untimely, even at the cost of ending Washington’s bid to
obtain habeas relief from his death sentence on grounds
similar to those that spared his co-defendant’s life.
