Louis Perez v. William Stephens, Director , 784 F.3d 276 ( 2015 )

Case: 14-70039 Document: 00513016146 Page: 1 Date Filed: 04/22/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-70039 United States Court of Appeals
Fifth Circuit
FILED
LOUIS CASTRO PEREZ, April 22, 2015
Lyle W. Cayce
Petitioner - Appellant Clerk
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:
In this 28 U.S.C. § 2254 death penalty case, Perez appeals the March 27,
2012, dismissal (“March 2012 Judgment”) of his habeas petition and
application for a Certificate of Appealability (“COA”). Although Perez failed to
file a notice of appeal within 30 days of the judgment as required by Federal
Rule of Appellate Procedure (“FRAP”) 4(a)(1), in its most recent ruling in this
case, the district court reopened the time to appeal pursuant to FRAP 4(a)(6),
and Perez filed an appeal of the March 2012 Judgment following that order.
In Perez’s previous appeal of the same ruling, we held, in part, that FRAP
4(a)(6) relief was not viable and dismissed Perez’s appeal without remanding
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to the district court. Perez v. Stephens, 745 F.3d 174 (5th Cir.) [hereinafter
“Perez I”], 1 cert. denied, 135 S. Ct. 401 (2014). The district court’s order
reopening the time to appeal thus conflicts with this court’s earlier opinion and
is barred by the mandate rule. Additionally, it reflects a misapplication of
FRAP 4(a)(6). Accordingly, we DISMISS this appeal for lack of jurisdiction.
I. Background
A Texas jury convicted Perez of capital murder and sentenced him to
death. Perez I, 745 F.3d at 175. The Texas Court of Criminal Appeals affirmed
his sentence on direct appeal and denied his habeas petition. Id. at 176. After
exhausting his state court remedies, Perez filed a habeas petition in federal
court pursuant to 28 U.S.C. § 2254. The district court denied Perez habeas
relief and declined to grant a COA. The judgment denying the writ of habeas
corpus and a COA was entered on March 27, 2012, meaning Perez had until
April 26, 2012, to file his appeal. See FRAP 4(a)(1)(A).
Perez’s attorney, Sadaf Khan, received notice of the judgment, but
decided not to appeal after concluding that an appeal was not in her client’s
best interest. Khan informed neither Perez nor the consulting attorney,
Richard Burr, of the judgment, nor did she consult Perez on whether to file an
appeal. Burr only learned of Khan’s failure to appeal after the deadline to
timely appeal had passed. After Burr informed Khan that death penalty
litigants should exhaust all appeals as a matter of course, Khan filed a motion
on June 25, 2012, to reopen the time to appeal pursuant to FRAP 4(a)(6). The
district court entered an order denying Khan’s motion on July 3, 2012, (the
“July 2012 Order”) reasoning that Khan had received notice of the judgment
when it was entered. See FRAP 4(a)(6) (providing that the court may only
1 “Perez” refers to the petitioner, while “Perez I” will denote this court’s previous
decision.
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reopen the time to appeal if, inter alia, the moving party did not receive notice
under Federal Rule of Civil Procedure 77(d)). The district court also noted that
Khan missed the deadline to file a FRAP 4(a)(5) motion. Khan did not appeal
the district court’s order.
Perez then obtained new counsel who filed FRAP 4(a)(5) and 4(a)(6)
motions, as well as a motion under Federal Rule of Civil Procedure (“Civil
Rule”) 60(b)(6), on August 29, 2012 (collectively, “August 29 Motions”). The
district court concluded that Khan had abandoned Perez and granted his Civil
Rule 60(b) motion. The court directed the clerk to reenter the March 2012
Judgment denying habeas relief so that Perez could timely appeal. The March
2012 Judgment was reentered on December 18, 2012 (“December 2012 Order”).
While the district court dismissed Perez’s FRAP 4(a)(5) and FRAP 4(a)(6)
motions, it held in the alternative that it would have granted relief under
FRAP 4(a)(6) if it had not entered judgment under Civil Rule 60(b). Perez filed
an appeal that would be timely as to the reentered March 2012 Judgment, and
the Director timely appealed the grant of Perez’s August 29 Motion for Civil
Rule 60(b) relief. In that appeal, the Director also filed a motion to dismiss for
want of jurisdiction with this court on the grounds that Perez could not render
his appeal timely through either Civil Rule 60(b) or FRAP 4(a)(6).
Perez I consolidated both appeals and held that the district court may
not allow an otherwise untimely appeal by using Civil Rule 60(b) to reenter a
judgment solely to make the appeal timely. 745 F.3d at 181. Because the
December 2012 Order reopening the time to appeal was invalid, Perez’s appeal
of the March 2012 Judgment was untimely. Id.
Similarly, we held that FRAP 4(a)(6) did not provide Perez with an
alternative avenue for filing a timely notice of appeal. Id. at 177 n.4. Perez
did not appeal the district court’s July 2012 Order or December 2012 Order
denying his FRAP 4(a)(6) motions. Nevertheless, the December 2012 Order
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held in the alternative that FRAP 4(a)(6) was a viable means of relief, while
William Stephens, the Director of the Texas Department of Criminal Justice
(“the Director”), argued in his motion to dismiss for want of jurisdiction that it
was not. In light of this dispute Perez I explained:
The district court ruled in the alternative that it would have
granted the Appellate Rule 4(a)(6) motion, despite its earlier
conclusion that this rule did not apply because Khan received
timely notice. Perez does not argue that Appellate Rule 4(a)(6)
would provide an alternate basis to find his appeal timely. This
rule does not cover an attorney’s decisions that lead to an untimely
appeal. See Resendiz v. Dretke, 452 F.3d 356 (5th Cir. 2006). Even
if Appellate Rule 4(a)(6) were an available source of relief in a case
such as this one, as suggested by the dissenting opinion, it permits
only a fourteen-day reopening of the time for appeal. This appeal
was filed twenty-eight days after the district court’s Civil Rule
60(b)(6) order. Thus, Appellate Rule 4(a)(6) does not aid Perez
here.
745 F.3d at 177 n.4. The court vacated the December 2012 Order granting
Civil Rule 60(b) relief, “leaving the March 2012 judgment as the ‘live’ judgment
as to which Perez’s appeal is, admittedly, untimely.” Id. at 181. Because
neither Civil Rule 60(b) nor FRAP 4(a)(6) rendered Perez’s appeal timely, the
court “GRANT[ED] the Director’s motion to dismiss . . . Perez’s appeal, for want
of jurisdiction.” Id. Perez I did not remand to the district court, nor did it
purport to vacate or reverse the district court’s dismissal of Perez’s August 29
Motions for FRAP 4(a)(5) and 4(a)(6) relief.
After this court’s disposition of Perez and the Director’s appeals and the
Supreme Court’s denial of certiorari, Perez filed a letter with the district court
“Re-urging . . . Pending Motions to Reopen or Extend the Time to File Notice
of Appeal.” The letter requested that the court grant Perez’s August 29
Motions for relief under FRAP 4(a)(5) and 4(a)(6), the two alternative bases the
district court had previously considered and dismissed in its December 2012
Order. Perez reasoned that this court’s vacatur of the district court’s Civil Rule
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60(b) judgment also vacated the district court’s dismissal of both motions.
Therefore, he argued that both motions remained pending before the district
court. The district court seemingly agreed with this contention, and reopened
the time to appeal pursuant to FRAP 4(a)(6) on the grounds that Khan, who
had received notice of the denial of habeas relief, had abandoned Perez and
thus Perez was not on notice of the March 2012 Judgment. The district court’s
order was entered on December 11, 2014 (the “December 2014 Order”), and
Perez then appealed the March 2012 Judgment denying habeas relief and
denying a COA, as well as all other adverse orders. In this second round of
appeals, the Director did not appeal the district court’s reopening of the time
to appeal under FRAP 4(a)(6).
The court requested letter briefs from each party addressing this court’s
jurisdiction to consider this appeal. In response, the parties filed letters
addressing whether the district court’s December 2014 Order violated the
mandate rule and whether the district court lacked the power to grant an
extension of the time to appeal the March 2012 Judgment.
II. Discussion
Before addressing why the district court’s December 2014 Order
reopening the time to appeal under FRAP 4(a)(6) violated Perez I’s mandate,
we must dispense with Perez’s argument that the Director’s failure to appeal
the district court’s FRAP 4(a)(6) Order renders it unreviewable on appeal.
Relying on Amantangelo v. Borough of Donora, 212 F.3d 776, 778–80 (3d Cir.
2000), Perez argues that the Director’s failure to appeal the district court’s
FRAP 4(a)(6) Order effectively forfeits any jurisdictional concerns stemming
from the Order.
It is axiomatic that we must consider the basis of our own jurisdiction,
sua sponte if necessary. Wilkens v. Johnson, 238 F.3d 328, 329–30 (5th Cir.
2001). Jurisdiction cannot be waived or created by consent of the parties, id.
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at 330, and “[a] timely filed notice of appeal is a jurisdictional prerequisite to
[appellate] review,” Dison v. Whitey, 20 F.3d 185, 187 (5th Cir. 1994). Perez
filed his notice of appeal pursuant to the December 2014 Order reopening the
time to appeal under FRAP 4(a)(6). In such circumstances, this court considers
it necessary to review the propriety of the underlying order to ascertain
whether we have jurisdiction. See Wilkens, 238 F.3d at 330 (holding that an
improperly granted FRAP 4(a)(6) motion did not provide appellate jurisdiction
even though the nonmoving party attempted to concede jurisdiction). Thus,
Perez’s argument to the contrary is unavailing.
The question, then, is whether we have jurisdiction to consider Perez’s
appeal of the March 2012 Order. Because we find that the district court’s
December 2014 Order reopening the time to appeal violates this court’s
mandate in Perez I, we must dismiss this appeal for want of jurisdiction.
Under law-of-the-case doctrine, “the district court on remand, or the
appellate court on a subsequent appeal, abstains from reexamining an issue of
fact or law that has already been decided on appeal.” United States v. Teel,
691 F.3d 578, 582 (5th Cir. 2012). A corollary of the law-of-the-case doctrine is
the mandate rule, which “requires a district court on remand to effect [the
court’s] mandate and to do nothing else.” Gen Universal Sys., Inc. v. HAL, Inc.,
500 F.3d 444, 453 (5th Cir. 2004) (citation and internal quotation marks
omitted). “A district court on remand ‘must implement both the letter and the
spirit of the appellate court’s mandate and may not disregard the explicit
directives of that court.’” United States v. McCrimmon, 443 F.3d 454, 459 (5th
Cir. 2006) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002)). “Whether the law of the case doctrine foreclose[s] the district court’s
exercise of discretion on remand and the interpretation of the scope of this
court’s remand order present questions of law that this court reviews de novo.”
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United States v. Hamilton, 440 F.3d 693, 697 (5th Cir. 2006) (citation and
internal quotation marks omitted).
To determine whether the December 2014 Order violated the mandate
rule, we must assess the scope of Perez I’s mandate. As stated above, this court
has a duty to examine the basis of its own jurisdiction. See Wilkens, 238 F.3d
at 329–30. In Perez I, we fulfilled that responsibility primarily by addressing
whether the district court’s grant of Civil Rule 60(b) relief afforded Perez with
the opportunity to timely appeal the March 2012 Order dismissing his habeas
petition. However, an alternative method of procuring jurisdiction was also
presented to the court. The December 2012 Order held, in the alternative, that
FRAP 4(a)(6) was a viable method of allowing Perez to timely appeal. The
Director disagreed and filed a motion to dismiss for want of jurisdiction with
this court, arguing that neither Civil Rule 60(b) nor FRAP 4(a)(6) were
permissible bases of establishing jurisdiction. As required, we evaluated
whether either motion provided Perez with a timely basis for appealing.
Both our holding in Perez I and our instructions to the district court
unambiguously rejected the December 2012 Order’s alternate holding that
FRAP 4(a)(6) was a permissible method of attaining jurisdiction. 745 F.3d at
177 n.4. Perez I stated that Perez could not reopen the time to appeal under
FRAP 4(a)(6) because the “rule does not cover an attorney’s decisions that lead
to an untimely appeal,” and that “Appellate Rule 4(a)(6) does not aid Perez
here.” 745 F.3d at 177 n.4 (citing Resendiz, 452 F.3d at 356). The district court
exceeded its authority when it subsequently issued its December 2014 Order
coming to the opposite conclusion. See McCrimmon, 443 F.3d at 459 (the
district court “may not disregard the explicit directives of [this] court”).
Perez implicitly argues that his failure to appeal the district court’s
denial of FRAP 4(a)(6) relief renders our statement in Perez I dictum and
therefore not law of the case. See Pegues v. Morehouse Parish Sch. Bd., 706
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F.2d 735, 738 (5th Cir. 1983). Obiter dictum is defined as “[a] judicial comment
. . . that is unnecessary to the decision in the case and therefore not
precedential.” BLACK’S LAW DICTIONARY 1240 (10th ed. 2014). In light of this
court’s obligation to assess its jurisdiction, an evaluation of whether FRAP
4(a)(6) provided such jurisdiction is anything but “unnecessary.” Both the
district court’s December 2012 Order, which asserted that FRAP 4(a)(6) relief
was available, and the motion to dismiss filed with this court contemplated
that FRAP 4(a)(6) might be a basis to establish jurisdiction. Perez I necessarily
assessed and dismissed this argument and then granted the Director’s motion
to dismiss for want of jurisdiction. 745 F.3d at 177 n.4, 181. Instead of being
dictum, the disputed language from Perez I is more accurately characterized
as ruling upon an alternative basis for appellate jurisdiction. See generally
Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) (“This circuit
follows the rule that alternative holdings are binding precedent and not obiter
dictum.”).
That the district court exceeded the scope of Perez I’s mandate is
bolstered by our disposition of the case. We addressed all avenues of potential
relief Perez possessed and rejected each in turn. Perez I vacated the district
court’s December 2012 Order, reinstated the March 27 Judgment from which
a FRAP 4(a)(6) motion would have been untimely, dismissed Perez’s appeal as
untimely, and did not remand to the district court. Moreover, Perez I did not
purport to vacate either the district court’s December 2012 Order or July 2012
Order denying FRAP 4(a)(6) relief. See id. at 181 (“VACAT[ING] the order
granting Civil Rule 60(b)(6) relief.” (emphasis added)). The totality of these
actions clearly manifested an intent to dispense with the case. Quite simply,
there was nothing left for the district court to do. While one could argue that
the failure to remand likely does not deprive the district court of jurisdiction,
see United States v. Dozier, 707 F.2d 862, 864 (5th Cir. 1983), the district
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court’s December 2014 Order still failed to heed Perez I. See McCrimmon, 443
F.3d at 459 (“A district court on remand must implement both the letter and
the spirit of the appellate court’s mandate . . . .”) (citation and internal
quotation marks omitted)). 2
Finally, Perez’s repeated failure to raise the FRAP 4(a)(6) issue is also
dispositive. The mandate rule “bars litigation of issues decided by the district
court but foregone on appeal or otherwise waived.” United States v. Lee, 358
F.3d 315, 321 (5th Cir. 2004) (quotation marks omitted). Indeed, it is well-
established that the failure to timely raise an issue forfeits that argument. See
United States v. Olano, 507 U.S. 725, 733 (1993).
This appeal is not the second, but the third attempt by Perez to extend
the time to appeal under FRAP 4(a)(6). Despite raising this issue twice before
the district court, Perez did not appeal or address either the July 2012 Order
denying the relief or the December 2012 Order dismissing FRAP 4(a)(6) relief,
including the fact that the latter Order stated that the Rule might provide an
alternative method of filing a timely notice of appeal, except to assert that he
was not relying on FRAP 4(a)(6). Perez had yet another opportunity to address
this issue in Perez I in response to the Director’s motion to dismiss for want of
jurisdiction, but again failed to do so. See 745 F.3d at 177 n.4 (“Perez does not
argue that Appellate Rule 4(a)(6) would provide an alternate basis to find his
appeal timely.”). This neglect is particularly unjustifiable given that the
2 We typically hold that a district court exceeds the “spirit” of a mandate when we
have remanded for a limited purpose but the district court proceeds to consider extraneous
issues. See United States v. Matthews, 312 F.3d 652, 658 (5th Cir. 2002). This same principle
applies by analogy here. Perez I took a multitude of actions that are inconsistent with the
district court’s subsequent decision to reopen the time to appeal under FRAP 4(a)(6). If
remanding with limited instructions precludes a district court from considering extraneous
issues on remand, then logic suggests that this court addressing the availability of FRAP
4(a)(6) relief and not remanding at all similarly deprives the district court.
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Director’s motion to dismiss explicitly placed this issue before the court. See
Lee, 358 F.3d at 324 (noting that an issue may be waived if there was a reason
to raise it in the initial appeal). 3
The dissenting opinion argues that Perez, as the appellee in Perez I, is
subject to a more lenient standard and as such his neglect is excusable. See
Tex. Midstream Gas Servs., LLC v. City of Grand Prairie, 608 F.3d 200, 206
(5th Cir. 2010). The argument is predicated on the premise that “avoiding
piecemeal litigation and conserving judicial resources are less implicated when
the party against whom waiver is asserted is the appellee.” Shell Offshore, Inc.
v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 122 F.3d 312,
317 (5th Cir. 1997) (citation, alterations, and internal quotation marks
omitted). While an appellee’s failure to brief an issue may not always raise
concerns about judicial economy, Perez’s repeated neglect—and the district
court’s willingness to revive issues that have already been resolved—
demonstrate why such concerns are relevant here.
Moreover, the basis for the policy choice applying a more lenient
standard to appellees is that, by definition, appellees are unable to choose
which issues will be appealed and are unable to file reply briefs. See Laitram
Corp. v. NEC Corp., 115 F.3d 947, 954 (Fed. Cir. 1997) (relied upon by this
court in Shell Offshore, Inc., 122 F.3d at 317). Those concerns are inapposite
here. Questions of appellate jurisdiction are always assessed by this court, so
Perez was on notice of this court’s inquiry and was not disadvantaged by being
the appellee. Furthermore, the Director raised the propriety of the FRAP
3 The dissenting opinion suggests there would be no reason to appeal the Rule 4(a)(6)
determination, given that the district court stated it would grant this relief and granted Perez
Rule 60(b) relief. This argument would not explain Perez’s lack of response to the motion to
dismiss or his affirmative statement that he was not relying on 4(a)(6). Additionally, it
supports our conclusion that this alternative basis for relief was before us in Perez I and
decided against Perez.
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4(a)(6) motion in his motion to dismiss for want of jurisdiction—which means
Perez had an additional opportunity, usually unavailable to appellees, to
address appellant’s arguments.
Finally, even if we were to determine that the FRAP 4(a)(6) issue was
not precluded by the ruling and events of Perez I, we conclude that FRAP
4(a)(6) relief is unavailable in a situation such as this one. FRAP 4(a)(6)
provides that “a 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 (1) a
party did not receive notice of the entry of the judgment under Federal Rule of
Civil Procedure 77(d) within 21 days after entry, 4 and (2) the FRAP 4(a)(6)
motion “is filed within 180 days after the judgment or order is entered or within
14 days after the moving party receives notice . . . whichever is earlier.” Civil
Rule 77(d), in turn, requires notice of judgment to be given under Federal Rule
of Civil Procedure 5(b), which mandates service on a party’s attorney if the
party is represented by counsel. It is undisputed that the clerk complied with
Civil Rule 77(d) and that Khan, Perez’s attorney, received notice. Thus, FRAP
4(a)(6) is unavailable here, as the district court originally ruled.
While this fact would ordinarily foreclose the availability of relief under
FRAP 4(a)(6), Perez and the dissenting opinion maintain that an exception to
this rule is warranted because Khan “abandoned” him. Although notice
received by an attorney is imputed to the client, see Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993), Perez argues that this
principle should not apply when an attorney has abandoned his client. See
Maples v. Thomas, 132 S. Ct. 912, 917 (2012). This argument has several
defects. First, we have previously held that the failure by an attorney to tell
4 On December 1, 2005, FRAP 4(a)(6) was amended such that “only formal service
pursuant to Federal Rules of Civil Procedure 77(d) and 5(b) constitutes notice.” Resendiz,
452 F.3d at 358 n.3.
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her client of a civil judgment in time to file an appeal is not “abandonment.”
Resendiz, 452 F.3d at 362 (declining to “reach the question of whether notice
may be imputed to a party who . . . is abandoned by counsel” because attorney
negligence does not constitute abandonment).
In Resendiz, 452 F.3d at 358, a habeas petitioner’s counsel received
notice of the entry of judgment against his client but failed to inform his client
of the judgment for two months, at which point the client sought to appeal.
After the district court denied his appeal as untimely, the petitioner appealed
to this court, arguing that notice of the judgment should not be imputed to him
“because counsel abandoned him, failing to either timely inform him of the
judgment or to file a notice of appeal.” Id. at 358–59. The court concluded that
counsel’s actions amounted to mere negligence and not attorney abandonment.
It observed that:
counsel filed a federal habeas petition on [petitioner’s] behalf and,
after meeting with [petitioner], moved, albeit untimely, to reopen
the period for filing a notice of appeal. If counsel’s failure to file a
timely notice of appeal constitutes abandonment, then
[petitioner’s] argument would allow an end run around the
requirements set forth in Rule 4(a)(6). Stated another way, the
proposed exception would swallow the rule.
Id. at 362.
Khan’s actions do not materially differ from the actions of the negligent
counsel in Resendiz. Like the attorney in Resendiz, Khan received notice of an
adverse judgment, failed to inform her client, and consequently failed to timely
appeal (although in her case, she made the decision not to appeal based upon
strategic considerations, which seems even less likely to be “abandonment,” see
Perez I, 745 F.3d at 177 n.5). Perez, like the petitioner in Resendiz, cannot use
his attorney’s failure to inform him as a basis to reopen the time to appeal
under FRAP 4(a)(6). Perez I, 745 F.3d at 177 n.4.
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Further, this argument runs squarely against Supreme Court precedent
holding that we are not at liberty to grant exceptions pursuant to 28 U.S.C. §
2107, which is “carrie[d] into practice” by FRAP 4. See Bowles v. Russell, 551
U.S. 205, 208, 214 (2007) (specifically noting that FRAP 4(a)(6) is grounded in
§ 2107(c)). “[T]he timely filing of a notice of a notice of appeal is a jurisdictional
requirement” and “this Court has no authority to create equitable exceptions
to jurisdictional requirements.” Id. Bowles expressly addressed FRAP 4(a)(6).
By contrast, the “equitable exceptions” crafted by the Court in other cases were
directed to non-jurisdictional rules. See Maples, 132 S. Ct. at 920–22 (2012)
(concerning whether default on a state procedural rule necessarily bars the
bringing of a habeas claim to federal court); Holland v. Florida, 560 U.S. 631,
645 (2010) (concerning AEDPA’s statute of limitations). Thus, even if we
concluded that Khan abandoned Perez, which we do not, under Bowles, the
jurisdictional nature of these statutory requirements precludes us from
reopening the time to appeal under FRAP 4(a)(6) because its terms are not met
here, i.e., notice of the judgment was properly given by the clerk and received
by Perez’s lawyer.
III. Conclusion
There are multiple avenues that arrive at the same conclusion—this
appeal should be dismissed. The mandate rule barred relitigation of Perez’s
FRAP 4(a)(6) claim. The district court erred by exceeding the scope of Perez I’s
mandate, and Perez erred by not raising his FRAP 4(a)(6) argument in a timely
fashion. Under any of these circumstances, the district court’s December 2014
Order reopening the time to appeal was invalid. Even if the mandate rule did
not bar relitigation of Perez’s 4(a)(6) claim, the Rule’s terms were not met, so
no such relief is available here. Accordingly, we again DISMISS Perez’s appeal
for want of jurisdiction.
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JAMES L. DENNIS, Circuit Judge, dissenting:
The majority correctly notes that obiter dictum is not the law of the case,
but incorrectly concludes that the Perez I majority’s discussion of FRAP 4(a)(6)
was not dictum. Next, the majority mistakenly concludes that Perez waived
the FRAP 4(a)(6) issue by failing to raise it in the prior appeal. Lastly, the
majority erroneously holds that the district court’s grant of FRAP 4(a)(6) relief
was improper on the merits. Because I would hold that the district court did
not abuse its discretion by granting Perez’s FRAP 4(a)(6) motion, I respectfully
dissent.
First, the majority opinion in Perez I did not include a holding as to FRAP
4(a)(6)—any mention of FRAP 4(a)(6) was dictum and therefore not the law of
the case. See Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 351
n.12 (2005) (“Dictum settles nothing, even in the court that utters it.”); Pegues
v. Morehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (stating that
obiter dictum is not law of the case). The district court’s December 2012 Order,
which was the subject of the prior appeal in Perez I, dismissed 1 Perez’s FRAP
4(a)(5) motion for extension of time and his 4(a)(6) motion to reopen the time
to file an appeal, but granted Perez’s Civil Rule 60(b)(6) motion for relief from
judgment. The district court then vacated and reentered its earlier judgment
denying Perez habeas relief. In a footnote, the district court stated that if it
had not granted Perez’s Civil Rule 60(b)(6) motion, it would have granted his
FRAP 4(a)(6) motion. The Director appealed the district court’s Civil Rule
60(b)(6) ruling and Perez, as appellee, argued that the court’s ruling was
correct. Perez did not argue in the alternative that the time to file an appeal
1 In the district court’s place, I would have termed these motions “denied as moot,”
rather than “dismissed,” but I do not believe that this difference in nomenclature is
dispositive.
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should have been reopened under FRAP 4(a)(6). The Perez I majority
concluded that Perez’s Civil Rule 60(b)(6) motion was improperly granted and
also mentioned in a footnote that FRAP 4(a)(6) would not have aided Perez.
Perez v. Stephens, 745 F.3d 174, 177 n.4 (5th Cir. 2014). In the instant appeal,
the majority concludes that that footnote was a holding and therefore binding
on the district court. In my view, it was not.
Obiter dictum is “[a] judicial comment made while delivering a judicial
opinion, but one that is unnecessary to the decision in the case and therefore
not precedential.” BLACK’S LAW DICTIONARY 1240 (10th ed. 2014); see also
Bohannan v. Doe, 527 F. App’x 283, 300 (5th Cir. 2013) (“[D]icta involves the
consideration of abstract and hypothetical situations not before the court.”
(internal quotation marks and alterations omitted)). The issue before the
Perez I panel was whether the district court had properly vacated its own
earlier judgment of March 2012 under Civil Rule 60(b)(6). See 745 F.3d at 177.
Perez did not challenge the district court’s dismissal of his FRAP 4(a)(6) motion
on appeal, so that issue was not before the panel. See id. at 177 n.4. Any
comments the Perez I panel made as to the merits of a hypothetical FRAP
4(a)(6) argument were nonbinding and not the law of the case. See Pegues, 706
F.2d at 738.
To arrive at its conclusion that the FRAP 4(a)(6) issue was properly
before the Perez I panel, the majority concludes that the district court’s
December 2012 Order included an “alternate holding” that Perez was entitled
to FRAP 4(a)(6) relief. The district court’s holding as to FRAP 4(a)(6), however,
was to dismiss Perez’s motion for relief under FRAP 4(a)(6). The majority,
therefore, reaches the paradoxical conclusion that the district court’s
December 2012 Order both held that Perez was entitled to FRAP 4(a)(6) relief
and denied him such relief. The district court did not maintain these
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contradictory holdings. Instead, the district court granted Perez’s motion to
vacate judgment under Civil Rule 60(b)(6), dismissed Perez’s alternative
motions under FRAP 4(a)(5) and 4(a)(6), vacated the March 2012 Judgment,
and entered a new judgment. Perez did not challenge the dismissal of his
FRAP 4(a) motions. 2 Only the vacatur of the March 2012 Judgment was before
the Perez I panel on appeal. The Perez I majority’s superfluous discussion of
FRAP 4(a)(6) therefore did not tie the district court’s hands. 3 See Pegues, 706
F.2d at 738.
Second, the majority concludes that Perez forfeited his FRAP 4(a)(6)
argument by failing to raise it before the Perez I panel and, because of the
forfeiture, the district court could not grant FRAP 4(a)(6) relief now. For
purposes of the FRAP 4(a)(6) issue, Perez was the appellee in Perez I. “[W]hen
the derelict party is the appellee, who may rely on a favorable ruling by the
trial court, it makes sense to construe the ‘rule’ of forfeiture more leniently.”
Tex. Midstream Gas Servs., LLC v. City of Grand Prairie, 608 F.3d 200, 206
(5th Cir. 2010); see also Shell Offshore, Inc. v. Dir., Office of Workers’ Comp.
Programs, U.S. Dep’t of Labor, 122 F.3d 312, 317 (5th Cir. 1997) (concluding
2 I do not suggest that Perez had no reason to appeal the dismissal of his FRAP 4(a)(6)
motion merely because the district court stated that it would have granted that motion. Perez
had no need to appeal the FRAP 4(a)(6) dismissal because he had succeeded under Civil Rule
60(b)(6).
3 The majority also suggests that the FRAP 4(a)(6) issue was properly before the Perez
I panel because this court has an obligation to assess its own jurisdiction. See United States
v. Key, 205 F.3d 773, 774 (5th Cir. 2000). FRAP 4(a)(6) could not have been an alternative
source of appellate jurisdiction, however, because the district court vacated the March 2012
Judgment. FRAP 4(a)(6) can extend the time to file a notice of appeal from a judgment, but
the March 2012 Judgment—the predicate judgment to which FRAP 4(a)(6) would have
applied—had already been vacated. The district court could not simultaneously vacate a
judgment and also extend the time to file a notice of appeal from that vacated judgment. As
a result, irrespective of all merits arguments, FRAP 4(a)(6) could not have supplied an
alternative source of jurisdiction (and Perez did not argue that it did).
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that issue was not forfeited despite appellee’s failure to address it in its brief).
Moreover, the forfeiture rule is not an absolute or jurisdictional bar to
considering issues that were not briefed; it is “a prudential construct that
requires the exercise of discretion.” United States v. Miranda, 248 F.3d 434,
443 (5th Cir. 2001). We should not conclude that Perez forfeited his FRAP
4(a)(6) argument.
Last, the majority holds that the district court was wrong to grant
Perez’s FRAP 4(a)(6) motion, even if the Perez I mandate did not otherwise
settle the issue. FRAP 4(a)(6) allows a district court to reopen the time to file
a notice of appeal if the court finds that the moving party did not receive notice
of entry of judgment. The district court determined that although Khan,
Perez’s trial attorney, had received notice of the entry of judgment, that notice
could not be imputed to Perez because Khan had abandoned him. See Maples
v. Thomas, 132 S. Ct. 912, 924 (2012) (“[U]nder agency principles, a client
cannot be charged with the acts or omissions of an attorney who has abandoned
him.”). The district court’s conclusion was not an abuse of discretion. See In
re Jones, 970 F.2d 36, 39 (5th Cir. 1992) (noting that a district court’s denial of
a FRAP 4(a)(6) motion is reviewed for abuse of discretion).
The majority relies heavily on Resendiz v. Dretke, 452 F.3d 356 (5th Cir.
2006), in which we stated that an attorney’s failure to file a timely notice of
appeal did not constitute abandonment. Id. at 362. Because we determined
that Resendiz had not been abandoned by counsel, we did “not reach the
question of whether notice may be imputed to a party who, though technically
represented, is abandoned by counsel.” Id. Resendiz, however, was decided
before the Supreme Court’s decision in Maples, which is indispensable to our
current understanding of attorney abandonment. See Maples, 132 S. Ct. at
922-28. More importantly, Perez’s attorney did more than just negligently
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miss a filing deadline. As I said in my dissent in Perez I, “Khan’s unilateral
decision not to notify Burr or Perez of the district court’s judgment and not to
pursue an appeal therefrom was an egregious breach of the duties an attorney
owes her client and thus constitutes abandonment, not mere negligence for
which Perez would ordinarily be responsible.” 745 F.3d at 187. Khan’s
misconduct was so significant that it rose to the level of constructive
abandonment. See Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012)
(“[G]ross negligence by an attorney, defined as neglect so gross that it is
inexcusable, vitiates the agency relationship that underlies our general policy
of attributing to the client the acts of his attorney.” (internal quotation marks
and alterations omitted)). The district court thus did not abuse its discretion
when it concluded that Khan had abandoned Perez and that the abandonment
justified reopening Perez’s window to file a notice of appeal under FRAP
4(a)(6). 4
Because the district court did not abuse its discretion in granting Perez’s
motion to reopen the time to file an appeal, and because Perez timely filed his
notice of appeal within the window that the district court created, we have
jurisdiction to hear this appeal. I therefore respectfully dissent from the
majority’s opinion.
4The district court’s decision does not run afoul of the rule that a court may not “create
equitable exceptions to jurisdictional requirements.” See Bowles v. Russell, 551 U.S. 205, 214
(2007). In Bowles, the Supreme Court held that a party could not use the equitable “unique
circumstances” doctrine to avoid the time limits prescribed by FRAP 4(a)(6). Id. Here, far
from creating an equitable exception, the district court merely applied agency principles to
conclude that notice could not be imputed to Perez because his counsel had abandoned him.
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