On December 15, 2003, the district court entered a final judgment in this case denying petitioner habeas corpus relief from his conviction and sentence for capital murder. On January 5, 2004, petitioner filed a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e).1 The motion was untimely because petitioner failed to file it within ten days of the entry of final judgment as Rule 59(e) requires. On January 29, 2004, the district court entered a written order stating that the motion was "DENIED."2 On February 27, 2004, petitioner filed a notice of appeal in the district court; the notice stated that he was appealing the final judgment of December 15, 2003 and the order of January 29, 2004.

On April 7, 2004, this panel dismissed petitioner's appeal of the December 15, 2003 judgment in an order containing the following language:

Appellant's motion to alter or amend, made pursuant to Fed.R.Civ.P. 59(e) was not filed within ten business days of and did not toll the appeal period for the December 15, 2003, judgment. Fed. R.App. P. 4(a)(4)(A); Fed.R.Civ.P. 6(a), 58, 60(b). Therefore the appeal is DISMISSED as to that order.3

On April 20, 2004, petitioner moved this court to reconsider its April 7 order dismissing his appeal of the December 15, 2003 judgment.4 In his motion, petitioner conceded that the Rule 59(e) motion he filed in the district court on January 5, 2004 might be untimely. If untimely, he asks that we treat the motion as timely under the "unique circumstances" doctrine. He cites Willis v. Newsome, 747 F.2d 605 (11th Cir.1984), in which we granted relief under that doctrine, and states that the unique circumstances surrounding the filing of petitioner's Rule 59(e) motion "fall[ ] squarely within the situation compelling relief in Willis."

The "unique circumstances" petitioner relies on are set out in the affidavit of one of the attorneys who filed his Rule 59(e) motion, David R. Gemmer. In his affidavit, Gemmer states that "[o]ne of my tasks [in filing the Rule 59(e) motion] was to determine the deadline for filing the motion." To this end, he reviewed the Federal Rules of Civil Procedure and the district court's local rules. He

"understood from that review that the Motion had to be timely filed within ten days from the date of entry of the order in question. However, [he] also was aware of Fed. R. Civ. P[.] 6 and Local Rule 4.20, which provided for three additional days to file when there had been service of a notice or paper by mail.5 While the [December 15, 2003 judgment] had been mailed to [his office, he] was not sure whether the local rule applied to the Motion. [He] either had no knowledge or had no recollection of Cavaliere v. Allstate Insurance Co., 996 F.2d 1111 (11th Cir.1993)." [See infra part II.]

After reviewing the above rules, Gemmer telephoned "the office of the Clerk in the Federal District Court ... several days before December 31, 2003."6 During his conversation with the woman who answered the telephone, he mentioned Local Rule 4.20 and asked whether Local Rule 4.20 "applied. She affirmatively told [him] that Local Rule 4.20 applied to [his] situation." Responding to his statement that he was having "problems with counting the holidays," she said that "December 25 and 26th were official court holidays, the extra day being established by the President in a special order." He then "counted off the days accounting for the holidays and Rule 4.20 and determined that Monday, January 5, 2004, would be the deadline for filing the [m]otion." "Had the clerk expressed any doubt ... about the application of Rule 4.20, [he] would have conducted additional research, but her answer was clear, emphatic, and unreserved, as was her affirmation that, accounting for holidays, weekends, and Rule 4.20, January 5, 2004 was [his] deadline." Nonetheless, "[b]oth the clerk and [Gemmer] acknowledged that the clerk's representations were not binding."

Gemmer goes on to state that his confidence that the motion had passed muster as timely was increased when the state and the court addressed the Application for Certificate of Appealability substantively [i.e., for the purpose of identifying claims that satisfied the criterion of 28 U.S.C. § 2253(c)(3)], rather than dismissively as based on a void notice of appeal. This buttressed [his] belief that the denial of the Motion to Alter or Amend was based on the merits.

In the body of his motion for reconsideration, petitioner urges that, in determining whether the unique circumstances doctrine applies, we should take into account, in addition to what Gemmer says in his affidavit, the following factors.7 First, the State, in responding to his Rule 59(e) motion, did not contend that it was untimely. "Had it done so in a timely fashion ..., [petitioner] could have filed the Notice of Appeal in a timely fashion." Second,

[h]ad the trial judge denied the Motion for untimeliness January 27, 2004, [petitioner] would have had more than two weeks to seek relief for excusable neglect under Fed. R.App. P. 4(a)(5). Instead, the lack of any objection or notice of the issue in this case lulled counsel into proceeding on the schedule based on the assumption the Rule 59(e) motion was timely.

A notice of appeal challenging the final judgment in a civil action must be filed no later than thirty days after the judgment is entered on the district court's docket. Fed. R.App. P. 4(a)(1)(A). A timely Rule 59(e) motion to alter or amend the judgment automatically tolls this thirty-day period, so that it begins to run from the date of the order denying the motion. Fed. R.App. P. 4(a)(4)(A).8 The motion to alter or amend the judgment is timely if filed "no later than 10 days after entry of judgment." Fed.R.Civ.P. 59(e); see Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11th Cir.1996) ("Untimely motions under Rule[ ] 59 ... will not toll the time for filing an appeal.").

Because the time period for filing a motion to alter or amend the judgment is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are not included in the computation. Fed.R.Civ.P. 6(a). Legal holidays include, inter alia, Christmas Day, New Year's Day, and "any other day appointed as a holiday by the President or the Congress of the United States...." Id.

In this case, the judgment was entered on Monday, December 15, 2003. To toll the time for filing an appeal, petitioner's motion to alter or amend the judgment had to have been filed by Tuesday, December 30, which was ten days later, not counting two weekends and Christmas Day. The motion was actually filed on January 5, 2004.9 The motion was therefore untimely and did not toll the time for filing a notice of appeal from the December 15 judgment. Accordingly, the notice of appeal was due, as prescribed by Federal Rule of Appellate Procedure 4(a)(4)(A), on January 14, 2004, which was thirty days after the entry of the December 15 judgment. The notice of appeal petitioner filed on February 27, 2004 was therefore untimely.

According to his affidavit, Gemmer believed that "Fed. R. Civ. P[.] 6 and Local Rule 4.20 ... provided for three additional days to file when there had been service of a notice or paper by mail." He had received the December 15, 2003 judgment by mail; nevertheless, he was "not sure whether the local rule applied to [his Rule 59(e)] Motion."

The Rule 6 provision Gemmer was referring to is part (e), which we quote in the margin. See supra note 5. Gemmer was unfamiliar with our decision in Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th Cir. 1993). Had he read it, he would have discovered that the appellant there, Cavaliere, made the same argument about Rule 6(e) that he and his co-counsel advance here. Cavaliere argued that because the final judgment was "served" by the clerk of the court by mail,10 Rule 6(e) provided him with three extra days to file his Rule 50(b) motion for new trial. We rejected Caviliere's argument. We held that Rule 6(b), which bars the district court from "extend[ing] the time for taking any action under Rules 50(b) ... and [59](e)," renders Rule 6(e) ineffective with respect to the time for filing Rule 59 motions. Given this holding, is petitioner's argument that Local Rule 4.20 provided him with three extra days for filing his Rule 59(e) motion valid? The answer has to be no.

The district court promulgated Local Rule 4.20 under the authority provided by 28 U.S.C. § 2071(a), which states:

The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under [28 U.S.C. § 2072].

(emphasis added.). Federal Rule of Civil Procedure 6 (and each of its subparts) was prescribed under § 2072. Rule 83 states in part (a) that "[a] local rule shall be consistent with — but not duplicative of — Acts of Congress and rules adopted under 28 U.S.C. § 2072. . . ." Local Rule 4.20, to the extent it is inconsistent with Rule 6(e), is therefore invalid. Local Rule 4.20's allowance of three extra days for filing Rule 59 motions is inconsistent with Rule 6(b)'s ban on extending the rule's ten-day limitations period and is therefore a nullity. In sum, petitioner's Rule 59(e) motion was untimely.

Petitioner asks that we treat his motion as timely under the "unique circumstances" doctrine. The unique circumstances doctrine excuses a litigant's failure to abide by the jurisdictional time limitations established by the rules, such as the ten-day limitations period prescribed by Rule 59, when the failure is caused by the litigant's reasonable reliance on a specific assurance by a judicial officer. Hollins v. Dep't of Corr., 191 F.3d 1324, 1327 (11th Cir.1999). In determining whether the doctrine should be invoked, we focus on "the reasonableness of the appellant's reliance on the action of the district court." Pinion v. Dow Chem., U.S.A., 928 F.2d 1522, 1532 (11th Cir.1991). "[A]ny judicial action prior to the expiration of the relevant time period for appeal that could have lulled the appellant into inactivity may permit our application of the doctrine." Hollins, 191 F.3d at 1327 (citing Pinion, 928 F.2d at 1529) (marks and citations omitted).

The unique circumstances petitioner cites are set out in Gemmer's affidavit and the body of petitioner's motion for reconsideration. Reduced to their essentials, they are: (1) that Gemmer obtained the assistance of someone in the clerk's office to calculate the number of days he had in which to file petitioner's Rule 59(e) motion; specifically, the holidays that were to be counted and whether, under Rule 6(e) and Local Rule 4.20, he had three extra days, in addition to the ten days provided by the rule, to file the motion; (2) that the State did not object to the motion as untimely; and (3) that the district court, in denying the motion, did not do so on the ground that it was untimely filed.

The facts petitioner relies upon to satisfy the unique circumstances inquiry mirror those relied upon by appellant Dow Chemical in Pinion. If anything, Dow Chemical presented a stronger case for the application of the doctrine than petitioner has. In Pinion, the district court, giving effect to the jury's verdict, entered a $2,450,000 judgment against Dow Chemical. 928 F.2d at 1524. Two days later, Dow Chemical presented the court with a consent order (signed by counsel for Dow Chemical and the plaintiffs) purporting to give Dow Chemical a thirty-day extension to file post-trial motions. Id. The court signed that consent order and another consent order several weeks later. Id. Within the time provided by the second extension, Dow Chemical filed a motion for judgment notwithstanding the verdict pursuant to Rule 50(b) of the Federal Rules of Civil Procedure and, alternatively, a motion for new trial pursuant to Rule 59. Id. The court denied both motions, and Dow Chemical appealed. Id.

Dow Chemical filed its notice of appeal ninety-six days after the entry of final judgment, long after the thirty-day appeal period Rule 4(a) of the Federal Rules of Appellate Procedure provides.11 Although the plaintiffs did not question our jurisdiction to entertain the appeal, we did so own our own initiative. Id.

After concluding that Dow Chemical's post-trial motions were untimely and thus did not toll the time for taking an appeal under Rule 4(a), we launched into the unique circumstances inquiry, assessing the "reasonableness of [Dow Chemical's] reliance on the action of the district court." Id. at 1532. Specifically, "[w]as it reasonable for Dow to rely upon the district court's improper extension of the time for filing post-trial motions, in spite of the explicit language of Rule 6(b) prohibiting the district court from granting such an extension?" Id. Our answer was clear: "When the problem is framed in this manner, we must answer `No.'" Id. "[T]he more apparent it becomes that the party's filing error stems as much from the party's own negligence in simply not reading or inquiring about the Rules, as it does from actual reliance on some action by the district court, the circumstances become far less `unique.'" Id. at 1533.

In Pinion, counsel admitted that they "`inadvertently overlooked the Rule 6(b) prohibition.'" Id. In the case at hand, petitioner's counsel was similarly neglectful, overlooking Rule(6)(b)'s prohibition and our decision in Cavaliere. In Pinion, we cited the Third Circuit's comments in a case presenting a similar scenario:

The unique circumstances doctrine has never been extended to an attorney's miscalculation of the applicable time limits, and we see no reason to do so here even if the trial judge also shared that incorrect assumption.

Id. (quoting Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1365-66 (3d Cir. 1990)). We also cited a Tenth Circuit case for the proposition that an attorney cannot reasonably rely on an improper enlargement of the time to file a notice of appeal "in light of his `duty to familiarize himself with the appellate rules.'" See id. (quoting Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255, 1257-58 (10th Cir.1990)). In rejecting the argument that counsel were justified in relying on the district court's unlawful ruling, the Certain Underwriters court said: counsel either "knew or should have known" that the district court had exceeded the maximum allowable extension under App. Rule 4(a)(5). 896 F.2d at 1258. So, too, in Pinion: counsel were not entitled to rely on the district court entry of an order extending the ten-day period for filing post-trial motions under Rules 50(b) and 59. To this effect we cited a Seventh Circuit observation in "United States v. Hill, 826 F.2d 507, 508 (7th Cir.1987) (`The Supreme Court has not held or even hinted that a defendant's own neglect, or that of his lawyer, extends a jurisdictional time limit.')." Pinion, 928 F.2d at 1533.

Pinion makes clear that it was unreasonable for petitioner's counsel to rely on the State's failure to oppose petitioner's Rule 59(e) motion as time-barred or to read the district court's denial of the motion as a ruling on its merits. And, if counsel in Pinion could not rely on the district court's extension orders, certainly counsel in this case could not rely on an unknown clerk's office employee's statement that Local Rule 4.20 gave counsel three extra days to file petitioner's motion, especially after the employee told counsel, in Gemmer's words, that her "representations were not binding."12

Precedent requires that we deny petitioner's motion for reconsideration. It is, accordingly,

DENIED.

Because this is a capital case, I find the result reached today very troubling. Ultimately, however, the facts in this case do not permit us to apply the "unique circumstances" doctrine.

There was no reliance upon a representation or order from the district court. See Butler v. Coral Volkswagen, Inc., 804 F.2d 612, 613 (11th Cir.1986) (discussing petitioner's reliance on the district court's extension of the time in which a new trial motion could be amended); Inglese v. Warden, U.S. Penitentiary, 687 F.2d 362, 362-63 (11th Cir.1982) (discussing petitioner's reliance on the district court's order extending the time in which a Rule 59(e) motion could be filed). Nor was there reliance on assurances received from the clerk's office pertaining to the administrative functions of the clerk's office, about which attorney familiarity could not be presumed. See Hollins v. Department of Corrections, 191 F.3d 1324, 1326 (11th Cir. 1999) (observing that the district court's PACER system failed to show the district court's entry of a final order); Willis v. Newsome, 747 F.2d 605, 606 (11th Cir. 1984) (noting that the clerk's office gave assurances regarding "local custom" and practice for stamping notices of appeal).

Here, Petitioner's counsel called and asked the clerk for legal advice — specifically, how to interpret the procedural rules regarding the time for filing a Rule 59(e) motion. Petitioner thus did not rely on either representations made by the district court or assurances from the clerk's office pertaining to an administrative function.

The "unique circumstances" doctrine does not permit us to reassign the lawyer's obligation to read the relevant rules and case law. In other words, it is not the responsibility of the clerk's office to inform the lawyer of the law. See Rezzonico v. H & R Block, Inc., 182 F.3d 144, 152 (2d Cir.1999) (finding no unique circumstances where appellants relied on representations from the clerk's office involving legal matters). As we have previously noted, even in a case as grave as this, an equitable remedy such as the "unique circumstances" doctrine does "not exist merely to rehabilitate attorney oversight or inadvertence." Pinion v. Dow Chemical, U.S.A., 928 F.2d 1522, 1534 (11th Cir.1991). Therefore, I must very reluctantly join in the opinion.

Like Judge Black, I'm not fond of the result in this case but recognize that the law and the facts with which we are presented require it.

This would-be appellant has an experienced attorney who serves as Assistant Capital Collateral Regional Counsel-Middle Region of Florida. Experienced as this counsel is, he screwed up. If one credits his affidavit, which given the present posture of the case we must, he unjustifiably sought and relied upon the advice of an unidentified person in the local clerk's office when he could and should have found the answer to his legal question himself. Not only that, but his affidavit discloses that both the person in the clerk's office and counsel acknowledged during their telephone conversation "that the clerk's representations were not binding."

In these circumstances, reliance upon that advice was unreasonable to say the least, and more to the point, it is outside our unique circumstances doctrine. See Pinion v. Dow Chem. U.S.A., 928 F.2d 1522 (11th Cir.1991); Willis v. Newsome, 747 F.2d 605, 606 (11th Cir.1984). If counsel had sufficiently researched the matter about which he had a question, as he should have, he would have turned up our decision in Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th Cir.1993), and Fed. R.Civ.P. 83(a)(1). Instead, he put at risk his client's right to appeal the judgment against him in return for the prospect of gaining a few days extra time for filing a Rule 59(e) motion.

If this were a case involving two corporations, we would apply the established rules, which require that we dismiss the appeal, and would do that with little or no discussion. What has brought forth more in response to the motion for reconsideration in this case is the fact that the party whose appeal is being dismissed is on death row, and the judgment he is seeking to appeal is one denying him federal habeas relief. That makes us as judges want to hear and decide the appeal instead of dismiss it for lack of jurisdiction because of an untimely notice of appeal. However, the rules relating to timeliness of filing and appellate court jurisdiction apply without respect to the identity of the parties or the nature of the case. We do not have one set of rules for petitioners and their attorneys in capital cases and another set for everyone else.

As judges we are obligated to follow the law, regardless of whether we personally like the result of doing so. We have done that.