UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
October 14, 1980
LOUIS H. AIKENS, APPELLANT
U.S. POSTAL SERVICE BOARD OF GOVERNORS, ET. AL. PETITION FOR REHEARING DENIED NOVEMBER 20, 1980
Before: WILKEY, WALD AND EDWARDS, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1980.CDC.246
Upon consideration of the motions of both the appellant and the appellees to further extend the time within which to file petitions for rehearing and/or to suggest rehearing en banc, it is
ORDERED, by the Court, that the motions of both the appellant and the appellees are granted and the time within which parties may petition for rehearing and/or suggest rehearing en banc is granted to, and including, October 23, 1980.
PER CURIAM DECISION
Dissenting opinion filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge, dissenting: A majority of the panel in this case has voted to grant the appellee, the U.S. Postal Service, two extensions of time in which to file a petition for rehearing and a suggestion for rehearing en banc. Because I find these actions unjustified, I dissent from the orders granting the requested extensions.
I recognize that it is not commonplace for a member of this court to issue an opinion in response to a request for an extension of time. Nevertheless, because I believe that the instant case presents such an egregious example of a misuse of the judicial process, I am constrained to set forth my views. I am also concerned that, by granting extensions of the sort here considered, the court may inadvertently encourage future misuses of the judicial process.
In order to explain my position, it is necessary to set out in detail the sequence of events in this case. The majority opinion, reversing the District Court and remanding the case for further proceedings, was issued on July 31, 1980. Judge Wilkey, concurring in part and dissenting in part, issued a separate opinion on September 9, 1980.1
On August 14, 1980, the appellee filed two motions. The first was for leave from this court to file a motion for an extension of time. This first motion was necessary because, as it acknowledged, the Postal Service failed to comply with the "ten-day rule."2 The second motion filed on August 14 was for a thirty day extension of time in which to file a petition for rehearing and a suggestion for rehearing en banc. A majority of the panel granted both of these motions on August 18, 1980, and gave the Postal Service until fourteen days after the dissenting opinion was filed (i.e. until September 23) to file its petition and suggestion.
The Postal Service indicated that it failed to make a timely request for an extension "because of vacation schedules and because the delay caused by the need for coordination between the Department of Justice, the United States Attorney, and the United States Postal Service." The Postal Service also indicated that the extension of time was needed for consultation among the appropriate counsel at the Department of Justice, the Postal Service, and the U.S. Attorney's office to determine whether a petition and suggestion should be filed.
On September 22, 1980, one day before the Postal Service's petition and suggestion were due, the Postal Service again requested an extension of time to file the petition and suggestion for rehearing, this time until October 20. The reason given for this second extension was to "conclude" consultation with the U.S. Attorney and the Department of Justice on whether a petition should be filed.
On September 23, 1980, the appellant, who was successful in his appeal to this court, also filed for, and was granted, a thirty day extension of time in which to file a petition for rehearing and suggestion for rehearing en banc.3
As a result of these extensions, the Postal Service will have had from July 31 until October 23, 1980, a total of twelve weeks, to file a petition for rehearing and a suggestion for rehearing en banc. Not only has the Postal Service required ten weeks of extensions to determine whether to file a petition, but it has repeatedly waited until the last minute to file the motions for extensions of time.
The parties' reasons for the requested extensions of time -- vacation schedules, travel plans, and consultation -- do not, in my mind, justify a ten-week extension. Unwarranted extensions of time, particularly in cases such as this one,4 simply delay justice for the successful party without benefitting the party seeking a rehearing. The public, as well as litigants, often complain of the slowness of the judicial process. Post-judgment delays must be all the more frustrating to the parties affected by the litigation and bewildering to the public at large.
The lawyers, it seems, are no less busy six weeks after the judgment is handed down than two weeks after. If this court would decline to grant extensions of time, except for truly good cause shown, lawyers will meet filing deadlines, and this court can expeditiously dispose of its cases. Thus, because I believe the Postal Service has shown no good cause for this second extension of time, I dissent from the panel's decision to grant it.
1 Judge Wilkey agreed that the case should be remanded because the trial judge misapplied the legal standard.
2 The Postal Service was apparently referring to Rule 8(h) of the General Rules of the D.C. Circuit Court of Appeals. That rule requires that "[all] motions requesting permission... to extend the time for filing briefs must be filed not less than 10 days before the main briefs are due to be filed." Thus, assuming that Rule 8(h) applies, the request for extension must be filed 10 days before the petition and suggestion for hearing are due.
Petitions for rehearing and suggestions for rehearing en banc must be filed "within 14 days after entry of judgment." Federal Rules of Appellate Procedure 40(a). See F.R.A.P. 35(c) (setting the time for filing a suggestion for rehearing en banc as the time set in Rule 40 for filing a petition for rehearing).
3 Appellant attributed his delay in filing to "travelling by appellant's attorney and the demands of his new job." Of course, it is not clear why appellant, who was successful on appeal, is filing for an extension.
4 In this case, all three judges on the panel voted to remand the case because the trial judge misapplied the law. Although he disagreed with certain of the holdings in the majority opinion, even Judge Wilkey, in his separate opinion, agreed that "the district court applied an inappropriate legal standard," and he concurred "with the majority insofar as they vacate the district court's grant of summary judgment on this erroneous legal basis."
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