Albert Ray Steward, III v. H & R Block Financial

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2917
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Albert Ray Steward, III, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
H & R Block Financial Advisors, Inc., * [UNPUBLISHED]
*
Appellee. *
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Submitted: March 18, 2010
Filed: April 6, 2010
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Before RILEY,1 Chief Judge, BYE and SHEPHERD, Circuit Judges.
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PER CURIAM.
Appearing pro se, Albert Steward appeals the district court’s dismissal of his
petition to vacate an arbitration award. As a preliminary matter, this court has an
obligation to consider it own jurisdiction. See Thomas v. Basham, 931 F.2d 521, 522-
23 (8th Cir. 1991). We conclude that we lack jurisdiction to review the dismissal
order because Steward’s notice of appeal was not timely filed under the Federal Rules
of Appellate Procedure. See Bowles v. Russell, 551 U.S. 205, 214 (2007) (timely
filing of notice of appeal in civil case is jurisdictional requirement).
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
The district court entered judgment on May 28, 2009, and the prescribed
deadline for filing a notice of appeal was June 27, 2009. See Fed. R. App. P.
4(a)(1)(A) (in civil case, notice of appeal must be filed with district court clerk within
30 days after judgment appealed from is entered). On June 26, 2009, Steward timely
filed a motion under Federal Rule of Appellate Procedure 4(a)(5) for an extension of
time to file a notice of appeal. On July 1, 2009, the district court entered an order
stating that Steward’s notice of appeal was due by August 3, 2009. Steward filed his
notice of appeal on August 3, 2009.
However, under the Federal Rules of Appellate Procedure, the deadline for
filing the notice of appeal could not be extended beyond the later date between thirty
days after the prescribed June 27 filing deadline and fourteen days after the July 1
order. See Fed. R. App. P. 4(a)(5)(C) (no extension under Rule 4(a)(5) may exceed
30 days after prescribed time to file notice of appeal or 14 days after date when order
granting motion is entered, whichever is later), 26(b)(1) (court may not extend time
to file notice of appeal except as authorized by Rule 4).
We therefore hold that the district court exceeded its authority when it extended
the deadline to August 3; that Steward’s notice of appeal, although filed in compliance
with the district court’s order, was nevertheless untimely under the federal rules; and
that this court lacks appellate jurisdiction to review his appeal. Cf. Bowles, 551 U.S.
at 206-08 (14-day limit for extending state prisoner’s time to file notice of appeal was
mandatory and jurisdictional; affirming appellate court’s dismissal of appeal for lack
of jurisdiction where district court had granted extension of notice of appeal filing
deadline beyond time allowed by statute and appellant had filed notice of appeal in
compliance with district court’s order). Accordingly, we dismiss Steward’s appeal for
lack of jurisdiction.
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BYE, Circuit Judge, concurring.
In Arnold v. Wood, this court recognized we may toll the notice of appeal
period “where a party has performed an act which, if properly done, would postpone
the deadline for filing his appeal and has received specific assurance by a judicial
officer that this act has been properly done.” 238 F.3d 992, 996 (8th Cir. 2001) (citing
Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989)). Such would appear to be
the case here, where Albert Steward, by no fault of his own, relied on the district
court’s order granting him until August 3, 2009, to file his notice of appeal.
However, in Bowles v. Russell, a sharply divided Supreme Court held courts
of appeals lack jurisdiction to hear an untimely appeal, even in cases where the district
court erroneously extends a would-be appellant’s time to file a notice of appeal
beyond the time prescribed in the Rules of Appellate Procedure. 551 U.S. 205, 206-
07 (2007). Although Bowles compels this panel to dismiss Steward’s appeal, I write
separately simply to echo Justice Souter’s observation that “[i]t is intolerable for the
judicial system to treat people this way.” Id. at 215 (Souter, J., dissenting).
I concur in the court’s judgment.
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