                    Revised December 15, 1998

                 UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                          __________________

                             No. 97-31325
                          __________________



     MIDWEST EMPLOYERS CASUALTY CO.,

                                 Plaintiff-Appellant/Appellee,

                                versus

     JO ANN WILLIAMS,1

                                 Defendant-Appellee/Appellant.

         ______________________________________________

      Appeals from the United States District Court for the
                   Western District of Louisiana
          ______________________________________________
                         November 24, 1998

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

     Midwest Employers Casualty Co. (“Midwest”) appeals the

district court’s supplemental memorandum ruling ordering it to

pay workers’ compensation benefits and medical expenses to Willie

Williams. We dismiss the appeal for lack of jurisdiction.




1
 Defendant/appellee/appellant Willie Williams died intestate on
October 19, 1998. Accordingly, Jo Ann Williams, administratrix of
Willie    Williams’s    estate,   has    been   substituted    as
defendant/appellee/appellant in this matter.
     The magistrate2 set forth the supplemental memorandum ruling

on October 15, 1997. On November 3,3 Midwest filed a motion for a

new trial. Williams opposed that motion, stating that under

Federal Rule of Civil Procedure 59, Midwest had only ten days

following the supplemental memorandum ruling in which to file its

motion. While Midwest’s motion for a new trial was pending,

Midwest’s time for filing a notice of appeal expired. On November

26, the magistrate denied Midwest’s motion for a new trial as

untimely. On December 9, Midwest filed a motion to extend the

time for filing an appeal,4 which Williams opposed. On December

11, the magistrate extended Midwest’s time to appeal until

December 21. Under Federal Rule of Appellate Procedure 4(a)(5),

the district court may extend the time for filing a notice of

appeal if the party seeking to appeal demonstrates “excusable

neglect” or “good cause” for its earlier failure to file. The

magistrate found that Midwest’s counsel had misread Federal Rule

of Civil Procedure 6(e)5 to apply to judgments served by mail and

2
 By consent of the parties and a referral from the district court,
the case was decided by Magistrate Judge John Simon.
3
 All dates are 1997.
4
 Under Federal Rule of Appellate Procedure 4(a)(4), the timely
filing of a Rule 59 motion for a new trial extends the time
available for filing a notice of appeal. An untimely post-judgment
motion, however, does not affect the time for filing an appeal. See
Knapp v. Dow Corning Co., 941 F.2d 1336, 1338 (5th Cir. 1991).
5
 Federal Rule of Civil Procedure 6(e) states: “Whenever a party has
the right or is required to do some act or take some proceedings
within a prescribed period after the service of a notice or other

                                2
mistakenly believed he had three extra days to file the motion

for a new trial. According to the magistrate, the misreading of

Rule 6(e) constituted “excusable neglect” for purposes of Rule

4(a)(5). The magistrate therefore extended Midwest’s time to file

an appeal because that time had lapsed while Midwest waited for a

ruling on a post-judgment motion that it believed was timely

filed. Williams appeals the magistrate’s decision to extend

Midwest’s time to appeal, contending that the magistrate abused

his discretion and this Court is without jurisdiction to hear

Midwest’s appeal.

     We review the magistrate’s decision for abuse of discretion,

see Latham v. Wells Fargo Bank, 987 F.2d 1199 (5th Cir. 1993),

and we agree that the magistrate did abuse his discretion in

granting Midwest additional time to file its appeal.

     This Court’s recent opinion in Halicki v. Louisiana Casino

Cruises, Inc., 151 F.3d 465 (5th Cir. 1998) informs our decision.

In Halicki, an employment discrimination case, the district court

granted summary judgment for the defendants, after which the

plaintiff, Halicki, had 30 days to file a notice of appeal.

Mistakenly believing that he had extra time under Rule 6(e)

because the judgment was served by mail, Halicki’s counsel filed

a Rule 59(e) motion two days late. A timely Rule 59(e) motion



paper upon the party and the notice or paper is served upon the
party by mail, 3 days shall be added to the prescribed period.”

                                3
would have suspended the 30-day period for filing an appeal.

Instead, the time for filing notice of appeal lapsed while

Halicki’s counsel waited for a ruling on the Rule 59(e) motion.

The district court refused to extend Halicki’s time to appeal,

holding that misreading Rule 6(e) to apply to judgments served by

mail did not constitute excusable neglect under Appellate Rule

4(a)(5). This Court affirmed:

     Apparently unaware that the plain language of the
     rules, well-settled hornbook law, and every other
     circuit to address the issue had rejected the
     applicability of rule 6(e) to Rule 59(e), [Halicki’s]
     attorney waited until the tenth day to mail the rule
     59(e) motion, causing it to arrive at the district
     court two days late.
          . . . .
          . . . . The nature of Halicki’s mistake weighs
     heavily against a finding of excusable neglect.
          Although in Clark we left open the possibility
     that some misinterpretations of the federal rules may
     qualify as excusable neglect, such is the rare case
     indeed. Where, as here, the rule at issue is
     unambiguous, a district court’s determination that the
     neglect was inexcusable is virtually unassailable. Were
     it otherwise, “almost every appellant’s lawyer would
     plead his own inability to understand the law when he
     fails to comply with a deadline.”

Halicki, 151 F.3d at 467-70 (quoting Advanced Estimating Sys.,

Inc. v. Riney, 130 F.3d 996, 998 (11th Cir. 1997)).

     One significant fact separates Halicki from the instant

case. In Halicki, we reviewed a district court’s decision not to

grant additional time to file the notice of appeal; here, we

review the magistrate’s decision to grant the additional time.

Courts of appeal often give more leeway to a district court’s


                                4
decision to grant an extension than they give to a district

court’s refusal to do so. See Charles Alan Wright et al., Federal

Practice and Procedure § 3950.3 (2d ed. 1996). Such additional

leeway notwithstanding, however, the magistrate’s decision here

cannot survive. We remain mindful of the “excusable neglect”

standard set forth by Pioneer Investment Services Co. v.

Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.

Ct. 1489 (1993):

     [T]he determination is at bottom an equitable one,
     taking account all of the relevant circumstances
     surrounding the party’s omission. These include . . .
     the danger of prejudice . . ., the length of the delay
     and its potential impact on judicial proceedings, the
     reason for the delay, including whether it was within
     the reasonable control of the movant, and whether the
     movant acted in good faith.

Id. at 395, 113 S. Ct. 1489 (quoted in Halicki, 151 F.3d at

468).6 Other than stating that Williams would not suffer undue

prejudice, the magistrate relied solely on “the different

application of the 3-day extension rule” being a “trap for the

unwary” when he found excusable neglect. As Halicki states, the

nature of this very mistake “weighs heavily against a finding of

excusable neglect.” We therefore find that the magistrate judge


6
 Pioneer Investment discussed the meaning of “excusable neglect”
under Bankruptcy Rule 9006(b)(1). Relying on the consistent use of
“excusable neglect” in federal rules, this Court in United States
v. Clark, 51 F.3d 42 (5th Cir. 1995), applied the Pioneer
Investment discussion to Appellate Rule 4(a)(5) in criminal cases.
See id. at 44. In Halicki, we extended Pioneer Investment under the
Clark rationale to civil cases. See Halicki, 151 F.3d at 468.

                                5
abused his discretion in granting Midwest additional time to file

notice of an appeal. Accord Prizevoits v. Indiana Bell Telephone

Co., 76 F.3d 132 (7th Cir. 1996) (overturning a grant of

additional time to file notice of appeal where the plaintiff’s

attorney misapplied Federal Rule of Civil Procedure 6(b)); Kyle

v. Campbell Soup Co., 28 F.3d 928 (9th Cir. 1994) (reversing an

order granting an enlargement of time under Rule 6(b) to file a

motion for attorney’s fees because an attorney’s mistake about

Rule 6(e) did not amount to excusable neglect). We continue to

leave open the possibility that some misinterpretations of the

federal rules could constitute excusable neglect, but we hold, as

in the Halicki opinion, that this is no such “rare case indeed.”

     The dissent argues that United States v. Evbuomwan, No. 93-

1738 (5th Cir. 1994) (unpublished opinion) (reported at 38 F.3d

89 (table case)), and Lackey v. Atlantic Richfield Co., 990 F.2d

202 (5th Cir. 1993), compel another result in this case. We find

those cases inapposite. In Evboumwan, a criminal case, counsel

misunderstood Federal Rule of Appellate Procedure 26(c), which

extends by three days the time to respond to papers served by

mail, to apply to notices of appeal. We noted that, under some

circumstances and particularly in criminal cases, Rule 4(b)’s

excusable-neglect provision could cover ignorance or neglect of

counsel in filing late notices of appeal. See Evbuomwan at 2

(citing United States v. Lewis, 522 F.2d 1367, 1369 (5th Cir.


                                6
1975)). In the instant case, unlike in Evbuomwan, counsel did not

misinterpret a rule governing the time to appeal. Instead,

counsel allowed the appeal deadline to pass while he waited for a

ruling on the motion for a new trial, even while Williams’s

opposition to the motion had already indicated that the motion

may have been untimely. We cannot equate this with the good-faith

misinterpretation of an appeal deadline that led to an equitable

decision for the Evbuomwan criminal defendant. In Lackey, the

district court extended time for filing an amended notice of

appeal where the plaintiffs had used “et al.” instead of listing

all parties. The district court found that the original timely

filed notice of appeal, although insufficient to invoke appellate

jurisdiction, sufficed to put the parties on notice within the

prescribed period. See Lackey, 990 F.2d at 206. In the instant

case, Williams and Midwest both watched the deadline pass without

a notice of appeal, and Williams had no reason to think that an

appeal would come later. We find Halicki, which mirrored the

facts of the instant case, more persuasive than either Lackey or

Evbuomwan.

     Midwest’s notice of appeal was not timely filed, and there

was no excusable neglect. This Court will not assume

jurisdiction, and the appeal is DISMISSED.




                                7
EMILIO M. GARZA, Circuit Judge, dissenting:



     The majority decides that the Magistrate Judge abused his

discretion in enlarging the period to file a notice of appeal.

Because our precedents establish that the Magistrate Judge

committed no reversible error, I dissent.

                                I

     The Clerk of Court entered in the docket an amended judgment

rendered by the Magistrate Judge7 in favor of Willie Williams8 on

October 16, 1997.   A copy of the amended judgment was mailed to

each party.    On November 3, 1997, Midwest Employers Casualty

Company (“Midwest”) filed a motion for new trial. Williams opposed

the request as untimely, arguing that it was filed more than ten

days after the entry of judgment, in contravention of Federal Rule

of Civil Procedure 59(b)'s plain language.9   The Magistrate Judge

agreed and denied Midwest’s motion on November 26, 1997.   In doing

so, he rejected the contention that Federal Rule of Civil Procedure

6(e) adds three days to the period for seeking new trial when a




7
     The parties agreed to proceed before a Magistrate Judge.    See
28 U.S.C. § 636(c).
8
     Because Willie Williams died during this appeal’s pendency, we
have substituted his administratrix, Jo Anne Williams, as
appellant. See FED. R. APP. P. 43(a).
9
     Rule 59(b) requires that a motion for new trial “be filed no
later than 10 days after the entry of the judgment.” FED. R. CIV.
P. 59(b).
party, like Midwest, receives the judgment in the mail.10 Rule 6(e),

he correctly observed, applies to periods triggered by service,

while the time to move for new trial commences with the entry of

judgment.

       Because of its tardiness, Midwest’s motion for new trial

failed to postpone the start of the thirty-day period for filing a

notice of appeal. The Magistrate Judge denied the motion after the

last    day   of   the   thirty-day    window      (November   16,    1997).

Consequently, on December 9, 1997, Midwest asked for additional

time to file a notice of appeal and for expedited consideration of

its request. The next day, the Magistrate Judge granted the motion

and gave Midwest ten days to appeal.         This disposition rested on a

finding that Midwest’s failure to file a timely notice of appeal

was due to excusable neglect.         The Magistrate Judge cited the

following     circumstances   in   support    of   his   excusable   neglect

determination: (1) Midwest’s dereliction arose from the belief of

its attorney that the receipt of the amended judgment in the mail

had the effect of adding three days to the period for filing a

motion for new trial and; (2) Williams suffered no undue prejudice


10
       Rule 6(e) states the following:

       Whenever a party has the right or is required to do some
       act or take some proceedings within a prescribed period
       after the service of a notice or other paper upon the
       party and the notice or paper is served upon the party by
       mail, 3 days shall be added to the prescribed period.

FED. R. CIV. P. 6(e).

                                    -9-
from a grant of more time to appeal because an even longer delay

would have occurred if the merits of the motion for new trial had

required consideration.            He also suggested that he considered the

mistake to have been in good faith.               Specifically, he noted that

Midwest’s counsel had submitted a sworn declaration that explained

the    reason    for    the    failure     to    file   a    timely   appeal     and

characterized our opinion in United States v. Clark, 51 F.3d 42

(5th    Cir.     1995),       as     “indicat[ing]      that    a     good     faith

misinterpretation of the three-day extension rule by counsel is

exactly the type of thing that constitutes ‘excusable neglect.’”

Midwest filed a notice of appeal before the new deadline.

                                          II

       Federal   Rule    of   Appellate        Procedure    4(a)(5)   permits   the

district court to extend the deadline for filing a notice of appeal

“upon a showing of excusable neglect or good cause.”                  FED. R. APP.

R. 4(a)(5).      When a party moves for more time after the deadline

for appealing has passed, it must show excusable neglect; good

cause does not suffice.            See Allied Steel, Gen. Contractor v. City

of Abilene, 909 F.2d 139, 143 n.3 (5th Cir. 1990); see also FED. R.

APP. P. 4(a)(5) advisory committee’s note (1979). The determination

of whether or not a party’s neglect is excusable “is at bottom an

equitable one, taking into account all relevant circumstances

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

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S. Ct.


                                         -10-
1489, 1498, 123 L. Ed. 2d 74, __ (1993).

      These include . . . the danger of prejudice to the
      [nonmovant] . . ., the length of the delay and its
      potential impact on judicial proceedings, the reason for
      delay, including whether it was within the reasonable
      control of the movant, and whether the movant acted in
      good faith.

Id.   A misinterpretation of unambiguous procedural rules usually

goes against finding excusable neglect.    See id. at 392, 113 S. Ct.

at 1496, 123 L. Ed. 2d at ___.    However, in some instances, other

considerations may outweigh this negative factor and tip the

balance in favor of allowing additional time.11   See id. at 398-99,

113 S. Ct. at 1499-1500, 123 L. Ed. 2d at ___ (applying the

excusable neglect standard).

      We review a ruling on a motion to enlarge the period for

filing a notice of appeal for abuse of discretion.     See Clark, 51

F.3d at 43.    An abuse of discretion occurs when we “ha[ve] a

definite and firm conviction that the lower court committed a clear

error of judgment in the conclusion it reached upon weighing the

relevant factors.”   Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th

Cir. 1996) (reviewing grant of a motion under Rule 4(a)(5)); accord

United States v. Walker, 772 F.2d 1172, 1176 (5th Cir. 1985)

(defining abuse of discretion); see 16A CHARLES ALAN WRIGHT   ET AL.,


11
     Because excusable neglect has the same meaning across
procedural contexts, I look not only to decisions regarding Rule
4(a)(5) but also to ones regarding other rules that include an
excusable neglect requirement. See Prizevoits v. Indiana Bell Tel.
Co., 76 F.3d 132, 134 (7th Cir. 1996); United States v. Clark, 51
F.3d 42, 44 (5th Cir. 1995).

                                 -11-
FEDERAL PRACTICE   AND   PROCEDURE § 3950.3 (2d ed. 1996) (stating that a

grant of more time to appeal “rests largely in the discretion” of

the district court and recommending that appellate courts “not

second-guess” such a ruling).          If we conclude that the district

court abused its discretion in enlarging the period to file a

notice of appeal, then we must dismiss for lack of jurisdiction.

See Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983) (“a timely

notice of appeal is a mandatory precondition to the exercise of our

jurisdiction”).

                                      III

      Our opinion in Halicki v. Louisiana Casino Cruises, Inc., 151

F.3d 465 (5th Cir. 1998), which involved facts identical to those

underlying this appeal, informs the majority.             In that case,

Halicki’s attorney filed a motion to alter or amend judgment

pursuant to Federal Rule of Civil Procedure 59(e) two days late as

a result of his erroneous belief that Rule 6(e) applied to Rule

59(e).12   See id. at 467.          When Louisiana Casino Cruises, Inc.

(“Casino Rouge”), objected to the motion as belated, Halicki’s

attorney, realizing his error, sought an extension of the deadline

for appealing.      Id.    The district court concluded that the mistake

of counsel failed to constitute excusable neglect and rejected the

request.    Id.    We found no abuse of discretion in this denial and


12
     Rule 59(e) (like Rule 59(b)) requires that a motion to alter
or amend judgment be “filed no later than 10 days after entry of
the judgment.” FED. R. CIV. P. 59(e).

                                      -12-
affirmed.     Id. at 470, 471.   We observed:

     Where, as here, the rule at issue [i.e., Rule 59(e)] is
     unambiguous, a district court’s determination that the
     neglect was inexcusable is virtually unassailable. Were
     it otherwise, “almost every appellant’s lawyer would
     plead his own inability to understand the law when he
     fails to comply with a deadline.”

Id. at 470.    In reaching this conclusion, we were unpersuaded that

a lack of prejudice to Casino Rouge offset the seriousness of

counsel’s mistake and shifted the balance in favor of finding

excusable neglect.     See id. at 469-70 n.4.

     The majority, invoking Halicki, holds that the Magistrate

Judge abused his discretion in granting Midwest further time to

file a notice of appeal.         I disagree.     The Magistrate Judge’s

ruling, in my view, was a proper exercise of discretion.              My

conclusion finds support in our precedent.

                                    IV

     Two of our cases, United States v. Evbuomwan, No. 93-1738 (5th

Cir. 1994) (unpublished opinion) (reported at 38 F.3d 89 (table

case)),13 and Lackey v. Atlantic Richfield Company, 990 F.2d 202,

205 (5th Cir. 1993), establish that the Magistrate Judge did not

err in extending the time to appeal.           In Evbuomwan, Evbuomwan’s

attorney filed a notice of appeal two days late because of a

failure to appreciate the apparent inapplicability of Federal Rule

13
     Although unpublished, Evbuomwan binds us. See 5th Cir. R.
47.5.3 (“Unpublished opinions issued before January 1, 1996, are
precedent.”); see also   Clark, 51 F.3d at 44 (following one of
Evbuomwan’s holdings).

                                   -13-
of Appellate Procedure 26(c), which lengthens by three days any

prescribed period beginning upon service by mail,14 to Federal Rule

of Appellate Procedure 4(b), which requires the filing of a notice

of appeal in a criminal case within ten days after the entry of

judgment.   See Evbuomwan at 2 (citing Welsh v. Elevating Boats,

Inc., 698 F.2d 230, 231-32 (5th Cir. 1983)).             The district court

lengthened the period for appealing because “the notice of appeal

was filed two days late as a result of counsel’s good faith

misinterpretation   of   the   rules,    rather   than    from   his    simply

miscalculating the date on which the notice was due.”                  Id.   We

affirmed, concluding:

     There is no indication that the government [i.e., the
     nonmovant] was at all prejudiced by the delay or that it
     affected judicial proceedings.    On the facts of this
     case, the district court did not abuse its discretion by
     accepting a notice of appeal filed in good faith, two
     days late.

Id. at 3. Our analysis reflected a determination that the district

court had acted within its discretion in deeming the absence of

prejudice, lack of adverse impact on judicial proceedings, and

movant’s good faith to trump counsel’s            misconstruction of the

rules’ plain language.    See id. at 2-3.

     Evbuomwan harkens back to Lackey.        Lackey’s attorney filed a

notice of appeal using the phrase “et al.” to identify parties, in

violation of Federal Rule of Appellate Procedure 3(c), and failed


14
     Rule 26(c) mirrors Rule 6(e).        Compare FED. R. APP. P. 26(c)
with FED. R. CIV. P. 6(e).

                                  -14-
to specify the parties in the notice’s body.15 See Lackey, 990 F.2d

at 205, 206.   He finally realized his mistake and moved for more

time to appeal nine days after the deadline for filing a notice.

See id. at 205.     Despite the egregiousness of the error))the

Supreme Court, looking to the language of Rule 3(c), previously had

held reliance on “et al.” inadequate to identify parties to an

appeal, see Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108

S. Ct. 2405, 2407, 101 L. Ed. 2d 285, ___ (1988), and “extensive

authority exist[ed] for the proposition that naming ‘plaintiffs’ in

the body of the notice of appeal [was] . . . insufficient,” Lackey,

990 F.2d at 206))the district court found excusable neglect and

reset the deadline for appealing.     Id. at 205, 206.   We affirmed,

offering the following explanation:

     The defendants argue that the district court abused its
     discretion because the plaintiffs do not point to any
     excusable neglect, other than inadvertence, and the case
     law requires something more. The plaintiffs did timely
     file a notice of appeal in this case.      Although, the
     original notice of appeal was insufficient to invoke
     appellate jurisdiction, they sought to remedy that defect
     via a Rule 4(a)(5) motion. The district judge could have
     properly found that the defendants were not prejudiced by
     the extension because they were already on notice, within
     the prescribed time period, that the plaintiffs were
     waging an appeal. Furthermore, the Rule 4(a)(5) motion
     was made not long after the original defective notice of
     appeal was filed. We cannot conclude that the district
     judge abused his discretion and, thus, all of the




15
      Under the current Federal Rules of Appellate Procedure, the
use of the phrase “et al.” to identify parties is permissible. See
FED. R. APP. P. 3(c) advisory committee’s note (1993).

                               -15-
     plaintiffs are properly before us.16

Id. at 206.   Like Evbuomwan, we held that the district court had

committed no abuse of discretion in deciding that, despite the

attorney’s obvious error, other factors))an absence of prejudice to

the nonmovant and the shortness of the delay caused))mitigated this

circumstance enough to render the neglect excusable.          Id.

     Evboumwan and Lackey lead me to conclude that the Magistrate

Judge’s enlargement of the period for filing a notice of appeal in

this case was a proper exercise of discretion.             The Magistrate

Judge   confronted   a   failure   by   counsel   to   construe   correctly

unambiguous procedural rules))a mistake he apparently viewed as

being   made in good faith))that caused neither prejudice to the

nonmovant nor a significant delay in the judicial proceedings.17

He concluded that counsel’s good faith, the absence of meaningful


16
     Lackey, in contrast to Evbuomwan, made no mention of the
seminal explication of excusable neglect))the Supreme Court’s
opinion in Pioneer Investment Services Company v. Brunswick
Associates Limited Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123
L. Ed. 2d 74 (1993). But its discussion echoes the application of
the excusable neglect standard in Pioneer. See id. at 397, 398-99,
113 S. Ct. 1499, 1500, 123 L. Ed. 2d at ___. As we decided Lackey
about a month after Pioneer was announced, the similarity between
the analyses in Lackey and Pioneer cannot be viewed as
coincidental. Compare id. at 380, 113 S. Ct. at 1489, 123 L. Ed.
2d at 74 (decided Mar. 24, 1993) with Lackey, 990 F.2d at 202
(decided Apr. 26, 1993).
17
     The majority says that the failure of Midwest’s attorney to
file a notice of appeal after Williams, in his response to the
motion for new trial, directed attention to Rule 59's language
distinguishes this case from Evbuomwan and Lackey. I disagree.
Williams’ response merely quoted Rules 6(e) and 59(b). It did not
apprise Midwest’s attorney of something that he did not know.

                                   -16-
prejudice,   and    the   short   length   of   the   delay   outweighed   the

unacceptableness of the reason for the delay and tipped the balance

in favor of finding excusable neglect.18          In Evbuomwan and Lackey,

we found similar determinations based on nearly the same facts to

be proper exercises of discretion.         We, therefore, must hold that

the Magistrate Judge in this case committed no abuse of discretion

in finding excusable neglect and authorizing additional time to

appeal.

                                      V

     The opinions to which the majority points, Prizevoits v.

Indiana Bell Telephone Company, 76 F.3d 132 (7th Cir. 1996), and

Kyle v. Campbell Soup Company, 28 F.3d 928 (9th Cir. 1994), fail to

dissuade me.19     In Prizevoits, Prizevoits’ lawyer sought more time,

18
     Although the Magistrate Judge did not note it, Midwest’s
effort to alleviate the delay by seeking and securing expedited
consideration of its motion for additional time also is a factor in
support of finding excusable neglect.
19
     I focus on the parts of Prizevoits and Kyle assessing the
facts under Pioneer’s excusable neglect standard, not those
applying pre-Pioneer precedents.    See 16A WRIGHT ET AL., supra §
3950.3 (“It is plain that Rule 4(a)(5) must now be read in the
light of what Pioneer Investment held about ‘excusable neglect’ and
that earlier decisions taking a different view of the concept are
no longer authoritative.”); see also Prizevoits, 76 F.3d at 135-36
(Eschbach, J., dissenting) (“The majority, however, chooses not to
address the impact of Pioneer on our past decisions. Given the
difference in tone between Pioneer and our past decisions, this
choice is a dubious one.”); Mayberry v. Said, No. 94-2416-JWL, 1996
WL 442046, at *2 (D. Kan. July 3, 1996) (questioning Kyle’s
authoritativeness because of its emphasis on pre-Pioneer holdings);
16A WRIGHT & MILLER, supra (arguably considering Prizevoits to be
among the cases that “seem to reflect extremely strict notions of
when an extension is permissible, notions that cannot have survived

                                    -17-
pursuant to Federal Rule of Civil Procedure 6(b), to file a Rule

59(e) motion.     See Prizevoits, 76 F.3d at 133.      After the thirty-

day period for appealing had passed, the district court denied the

motion for a deadline extension as unsupported by Rule 6(b)’s plain

language.20     See id.    Prizevoits’ lawyer then filed a motion to

enlarge the time for appealing.           See id.   He asserted that his

recent retention, which resulted in ten days being too little time

to prepare the Rule 59(e) motion, and the delay (nearly a month) in

the district court’s ruling justified a deadline extension.          See

id.   The district court granted the motion, finding excusable

neglect.      See id.     The Seventh Circuit disagreed and held the

following:

      Here the rule is crystal clear, the error egregious, the
      excuses so thin as to leave the lapse not only unexcused
      but inexplicable. If there was “excusable” neglect here,
      we have difficulty imagining a case of inexcusable
      neglect. We do not think it can make a difference that
      no harm to the appellee has been shown.        There is
      unlikely ever to be harm in the Rule 4(a)(5) setting,
      because the neglectful appellant has only 30 days after
      the expiration of his time for appealing in which to
      request relief. The word “excusable” would be read out
      of the rule if inexcusable neglect were transmuted into
      excusable neglect by a mere absence of harm.

Id. at 134.

      Kyle also arose from the failure to understand a rule.      Kyle’s



the Supreme Court’s decision in the Pioneer Investment case”).
20
     Rule 6(b) provides that “[t]he district court] may not extend
the time for taking any action under Rule[] . . . 59(b), (d) and
(e).” See FED. R. CIV. P. 6(b).

                                   -18-
lawyer decided that he had, pursuant to Rule 6(e), three extra days

to file a motion for attorney’s fees since he had received the

judgment in the mail.        See Kyle, 28 F.3d at 929.         However, Rule

6(e) was inapplicable because the pertinent local rule required the

filing of motions for attorney’s fees within thirty days of the

entry of judgment.21     See id.    The lawyer’s mistake resulted in the

motion for attorney’s fees being two days late.               See id.      Kyle

consequently asked for an enlargement of the filing period.                 See

id. Deeming counsel’s error excusable neglect under Rule 6(b), the

district court granted the motion.            See id.     The Ninth Circuit

determined that this disposition was an abuse of discretion.                See

id. at 929-31.     In doing so, it stated:

      [C]ounsel in this matter committed a mistake in
      interpreting and applying the Local Rules and Rule 6(e)
      of the Federal Rules of Civil Procedure, which were not
      ambiguous.    This form of neglect was not excusable.
      Although the Court in Pioneer recognized that “excusable
      neglect” is a flexible, equitable concept, the Court also
      reminded us that “inadvertence, ignorance of rules, or
      mistakes constructing the rules do not usually constitute
      ‘excusable neglect.’”    In this case, counsel has not
      presented    a   persuasive    justification    for   his
      misconstruction of nonambiguous rules.       Accordingly,
      there is no basis for deviating from the general rule
      that a mistake of law does not constitute excusable
      neglect.

Id. at 931-32.      The good faith of Kyle’s counsel, the conclusion



21
      A provision similar to the local rule was added to the Federal Rules of
Civil Procedure subsequent to the events underlying Kyle. See FED. R. CIV. P. 54
advisory committee’s note (1993) (adding subdivision on attorneys’ fees, which
includes the requirement that motions for attorney’s fees be filed no later than
fourteen days after the entry of judgment).

                                     -19-
that the mistake did not reflect professional incompetence, and the

lack of prejudice to the nonmovant failed to sway the Ninth Circuit

to affirm.22    See id. at 931.

      The   majority    presumably     considers     the   likeness     of   the

circumstances in Prizevoits and Kyle to those in this case to

dictate deeming the Magistrate Judge’s finding of excusable neglect

inappropriate.23     However, even if the Magistrate Judge’s decision

fails to square with Prizevoits and Kyle, we still cannot reverse.

Evbuomwan and Lackey, which also concerned circumstances similar to

those here))certainly the facts in them are as similar to those in

this case as are the ones underlying Prizevoits and Kyle))call for

us to conclude otherwise.         We must follow them, our         precedents,

rather than the decisions from other circuits that the majority

favors, and hold that the Magistrate Judge committed no error.

                                       VI

      The majority seems to think that “[i]f misconstruction of a

nonambiguous rule cannot, under [Fifth] . . . Circuit precedent


22
      The Ninth Circuit’s appraisal of other factors appeared as a response to
Kyle’s argument that the excusable neglect standard set out in Dominic v. Hess
Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988), supported the district court’s
ruling.   See Kyle, 28 F.3d at 931.     This discussion is informative because
Pioneer endorsed Dominic’s understanding of excusable neglect, see Pioneer, 507
U.S. at 387 n.3, 113 S. Ct. at 1494 n.3, 123 L. Ed. 2d at ___ n.3 (citing the
Third Circuit as among the appellate courts “adopt[ing] a more flexible approach”
to excusable neglect).
23
      Kyle’s facts are virtually indistinguishable from those in this case. The
same, however, cannot so readily be said of the facts in Prizevoits. While
Prizevoits’ attorney failed to comprehend an explicit exception found in Rule
6(b), Midwest’s attorney made the arguably less egregious error in not inferring
from the unambiguous language of Rule 6(e) and Rule 59(e) the inapplicability of
the former rule to the latter one.

                                      -20-
[i.e.,   Halicki],    constitute    excusable    neglect     to   justify   an

extension of time, it clearly would [be an] . . . abuse of

discretion for the district court in this case to hold that [a

misconstruction of a nonambiguous rule] . . . could constitute

excusable neglect.”      Committee for Idaho’s High Desert, Inc. v.

Yost, 92 F.3d 814, 825 (9th Cir. 1996).         This logic runs counter to

the “equitable and discretionary nature of the trial judge’s

‘excusable neglect’ determination.”        Robb v. Norfolk & W. Ry., 122

F.3d 354, 362 (7th Cir. 1997).

      The   majority’s    rationale    suggests       that   an      attorney’s

misinterpretation of an unambiguous rule never can be excusable

neglect, regardless of the circumstances.             Such a perspective,

however, is untenable, for it contravenes the contextual nature of

the excusable neglect determination. See Pioneer, 507 U.S. at 395,

113 S. Ct. at 1498, 123 L. Ed. 2d at ___; see also United States v.

Brown, 133 F.3d 993, 997 (7th Cir. 1998) (“But Pioneer made clear

that the standard is a balancing test, meaning that a delay might

be   excused   even   where   the   reasons     for   the    delay    are   not

particularly compelling.”), cert. denied, ___ U.S. ___, 118 S. Ct.

1824, 140 L. Ed. 2d 960 (1998).       But cf. Advanced Estimating Sys.

v. Riney, 130 F.3d 996, 998 (11th Cir. 1997) (holding, “as a matter

of law, that an attorney’s misunderstanding of the plain language

of a rule cannot constitute excusable neglect such that a party is

relieved of the consequences of failing to comply with a statutory

                                    -21-
deadline” and providing no discussion of circumstances other than

the attorney’s error); Yost, 92 F.3d at 825 (finding that counsel’s

ignorance, “under this court’s interpretation of Pioneer in Kyle,

[removed the] . . . need for the court to consider expressly the

equitable factors listed in Pioneer”).

       The majority’s concern with parity of reasoning, moreover,

gives short shrift to the discretion of lower courts.                   When

reviewing rulings on motions for more time to appeal for abuse of

discretion, we envision a range of acceptable outcomes, rather than

a single correct disposition.      See Brown, 133 F.3d at 996 (“We can

disagree with the district court’s decision, but we can reverse

only if we find that granting the extension was an abuse of his

discretion.”); 1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS

OF   REVIEW § 4.21 (2d ed. 1992 & Supp. 1997) (“many courts describe

the point of abuse of discretion review as one permitting the judge

to choose from several satisfactory options”); cf. Koon v. United

States, 518 U.S. 81, 99, 116 S. Ct. 2035, 2047, 135 L. Ed. 2d 392,

___ (1996) (observing that abuse of discretion is the appropriate

standard    for   reviewing   highly   contextual   matters).    Halicki,

Evbuomwan     and   Lackey,    taken   together,    exemplify    what    we

contemplate. Given what they have held, a lower court may conclude

that circumstances like those in this case either constitute

excusable neglect or do not; both decisions are acceptable))that

is, neither one leaves a firm conviction that a clear error in


                                   -22-
judgment was committed.         Cf. Brown, 133 F.3d at 997 (affirming

grant of additional time to appeal but noting that, “[i]n a close

case like this one, we might affirm a district court that refused

to exercise lenity”). Therefore, affirming in this case creates no

inconsistency     in   our   jurisprudence     on   excusable    neglect    and

extensions of time to appeal.24

                                       V

      The majority fails to recognize and apply precedents that

require us to uphold the Magistrate Judge’s finding of excusable

neglect and enlargement of the period for filing a notice of

appeal. Its oversight most likely will throw into disarray the law

on when neglect is excusable so as to justify extension of the

deadline for appealing.       Ironically, this consequence will defeat

the apparent goal of the majority’s disposition))conformity in our

decisions.

      Accordingly, I dissent.




24
      We have long appreciated how abuse of discretion necessitates that we give
appropriate deference to lower court findings of excusable neglect. Years ago,
in Wansor v. George Hantscho Co., 570 F.2d 1202 (5th Cir. 1978), we commented:

      We do not hold that a bona fide misunderstanding or mistake as to
      the law by counsel will constitute excusable neglect. We recognize
      that such a proposition would make the requirement of timely filing
      almost undeterminable.   All we decide here is that, viewing the
      facts and circumstances as whole, the District Judge did not abuse
      his discretion in granting an extended time for appeal.

Id. at 1205-06.

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