Opinion · Court of Appeals for the Ninth Circuit
Earl C. Diamond v. United States District Court for the Central District of California, and United States of America, Real Party in Interest
661 F.2d 1198
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1981-11-02
- Topic
- general
How later courts describe this case
- recognizing that the denial of a motion for extension of time to file an appeal is an appealable order
- dicta suggesting that considerations of fairness would allow a court to construe a mandamus petition as a notice of appeal
- denial of motion for extension of appeal period is itself appealable
Citator
UpLaw has not yet analyzed Earl C. Diamond v. United States District Court for the Central District of California, and United States of America, Real Party in Interest. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 28 opinions
DIAMOND v. U.S. DIST. CT. FOR CENT., CALIF,661 F.2d 1198(9th Cir. 1981)
EARL C. DIAMOND, PETITIONER, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA, RESPONDENT,
AND
UNITED STATES OF AMERICA, REAL PARTY IN INTEREST.
No. 81-7691.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 28, 1981.
Decided November 2, 1981.
Laurie L. Levenson, Asst. U.S. Atty., Los Angeles, Cal., for respondent.
[1] ORDER
Before NELSON and REINHARDT, Circuit Judges.
[3] We may not accept mandamus jurisdiction over a matter subject to direct appeal.See Helstoski v. Meanor,442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). Thus, the initial question is whether the September 29, 1981 order is subject to direct appeal or to review by mandamus only.
[4] This Court has not previously addressed the issue whether an order denying a motion to file a late notice of appeal is itself appealable. However, we have little difficulty in concluding that such an order is appealable under28 U.S.C. § 1291.See Matterof Orbitec Corporation,520 F.2d 358, 360 (2d Cir. 1975). Such orders are appealable whether the motion seeks leave to file a late appeal from a final judgment or from an order which falls within the collateral order exception,see Cohen v. BeneficialIndustrial Loan Corp.,337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) andAbney v. United States,431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Here, the latter type of order is involved. Consequently, we hold that direct appeal, and not mandamus, is the proper means of obtaining review of the district court's order.
[5] We could, of course, construe petitioner's mandamus petition as a notice of appeal, and would, under the circumstances, ordinarily do so. However, a notice of appeal must be filed within ten days,United States v. Ajimura,598 F.2d 510(9th Cir. 1979), unless the district court extends the time for filing the notice,SeeFed.R.App.P.Page 11994(b). Petitioner did not file his mandamus petition until fifteen days after the order was entered. Since he elected to pursue mandamus, he did not seek leave from the district court to file a late appeal. Accordingly, were we to construe the mandamus petition as a notice of appeal, the notice would not now be timely. For that reason, we decline to do so.
[6] We express no view as to the district court's refusal to permit petitioner to file a late notice of appeal from its order denying his motion to dismiss the indictment. We note, however, that petitioner's argument that the district court abused its discretion in denying him that permission raises serious and troublesome questions.
[7] The petition for a writ of mandamus is denied. The stay previously entered by this Court is dissolved.