                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

THOMAS C. HOY,                                  No.    15-35819

                Plaintiff-Appellant,            D.C. No. 3:13-cv-01098-HZ

 v.

YAMHILL COUNTY, a public                        MEMORANDUM*
municipality; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernández, District Judge, Presiding

                             Submitted July 10, 2017**
                                Portland, Oregon

Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,*** District
Judge.

      1. The district court did not abuse its discretion in finding that Hoy lacked

“good cause” for the delay in filing his notice of appeal. Fed. R. App. P.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
4(a)(5)(A). To establish good cause, Hoy was required to show that the delay was

not his fault. See United States v. Navarro, 800 F.3d 1104, 1109 (9th Cir. 2015);

Fed. R. App. P. 4 Advisory Committee’s Note to 2002 Amendments. His

counsel’s failures are attributable to him for this purpose. Pioneer Inv. Servs. Co.

v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396–97 (1993). Hoy’s counsel,

Samantha Copeland, waited until the day the notice of appeal was due before

allegedly attempting to file it. In her declaration, Copeland asserted that at 11:00

p.m., an hour before the deadline, she tried to file the notice of appeal but had

difficulty logging on to the CM/ECF system. Copeland said she was able to log on

the next day, but she still did not file the notice. Copeland claimed that she

believed the local rules gave her three extra days to file the notice. But she later

acknowledged she was wrong about that, and, as the district court noted, her

purported belief that she had three extra days is in tension with her effort to file the

notice at 11:00 p.m. on the day it was actually due. In light of Copeland’s account

of what happened, the district court’s conclusion that the delay was Copeland’s

fault (and therefore Hoy’s fault) was not an abuse of discretion.

      2. Nor did the district court abuse its discretion in refusing to find that

Hoy’s delay was the product of “excusable neglect.” Fed. R. App. P. 4(a)(5)(A).

The district court considered all four aspects of the excusable neglect inquiry and

found that three of the four cut in Hoy’s favor. Pioneer, 507 U.S. at 395; Lemoge


                                           2
v. United States, 587 F.3d 1188, 1193–94 (9th Cir. 2009). But the remaining factor

(namely, the reasons for the delay, which are discussed in the preceding

paragraph), combined with the litany of errors and missed deadlines by Copeland

throughout the district court proceedings, supported the finding that Hoy’s neglect

was not “excusable.” Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004) (en

banc); Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000).

      AFFIRMED.




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