In re: Eugen E A. Fisch Er

This opinion is being released initially in typescript form .*
In the
United States Court of Appeals
For the Seventh Circuit
N o. 09-1099
IN RE: EUGEN E A. FISCH ER,
Petitioner.
___________________
Petition for Writ of Mand amus
from the Southern District of Illinois.
N o. 4:87-cr-40070-JPG-4--J. Phil Gilbert, Judge.
___________________
SUBMITTED JAN UARY 15, 2009—DECIDED JAN UARY 23, 2009*
___________________
Before RIPPLE, MAN ION and ROVN ER, Circuit Judges.

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N o. 09-1099 Page 2
RIPPLE, Circuit Judge. Eugene Fischer has filed a p etition for
w rit of mand amus asking this court to allow him to file a late notice
of appeal from the d istrict court’s ord er granting the Government’s
m otion to renew a monetary forfeiture jud gment against him . The
d istrict court entered its ord er granting the Government’s motion to
renew the forfeiture jud gment on N ovem ber 5, 2008. In his papers,
Mr. Fischer says that he d id not receive a cop y of the N ovember 5
ord er and only learned that an ord er had been issued w hen he
received a copy of the d istrict court’s d ocket sheet in prison. H e d oes
not say exactly w hen he received the d ocket sheet, but ind icates that
it w as just before mailing his petition on January 9, 2009. Mr. Fischer
w as required to file a notice of appeal w ith the d istrict court clerk
w ithin 30 d ays after the ord er appealed from w as entered , see Fed . R.
App. P. 4(a)(1)(A), bu t was unable to d o so because he d id not learn
of the ord er until the 30-d ay time period had exp ired . As a result,
Mr. Fischer now asks this court to allow him to file a notice of appeal
from the N ovem ber 5 ord er. We d eny Mr. Fischer’s petition because
mand amus is not the proper method for obtaining permission to file
a late notice of appeal. We issue this opinion to p rovid e him w ith
guid ance as to the proper steps to take.
Fed eral Rule of Appellate Procedure 4(a)(6) explains the proper
method for requesting leave to file a late notice of appeal w hen a
party d oes not receive notice of entry of an ord er or jud gment. Rule
4(a)(6) provid es as follow s:
The d istrict court m ay reopen the time to file an ap p eal for a
period of 14 d ays after the d ate w hen its ord er to reopen is
entered , but only if all the follow ing cond itions are satisfied :
(A) the court find s that the moving party d id not receive
notice und er Fed eral Ru le of Appellate Proced ure 77(d )
of the entry of the jud gment or ord er sought to be
appealed w ithin 21 d ays after entry;
(B) the motion is filed w ithin 180 d ays after the
jud gment or ord er is entered or w ithin 7 d ays after the

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N o. 09-1099 Page 3
A review of the d istrict court d ocket ind icates that Mr. Fischer has1
not filed a m otion to reopen the tim e for filing a notice of appeal in that
court. If Mr. Fischer’s representations to this court are accurate, he d id not
receive notice of the entry of the ord er from the d istrict court or the
opposing party, as required by Fed eral Rule of Civil Proced ure 77(d ), w ithin
21 d ays after entry of th e ord er, and he learned of the ord er’s entry by
requ esting the d ocket sheet, and not from the court or the opposing party,
so the seven-d ay d ead line in Rule 4(a)(6)(B) w ould not apply. As a result,
Mr. Fischer w ou ld have 180 d ays from the d ate the ord er w as entered ,
N ovem ber 5, 2008, to file his m otion w ith the d istrict court.
moving p arty receives notice und er Fed eral Rule of
Appellate Proced ure 77(d ) of the entry, w hichever is
earlier; and
(C) the court find s that no party w ould be prejud iced .
See Firmansjah v. A shcroft, 347 F.3d 625, 626 (7th Cir. 2003). Rule 4(a)(6)
specifically gives the authority to reop en the time for filing an appeal
to the d istrict court; appellate courts cannot extend the time to file a
notice of appeal. See Bhd. of Ry. Carmen Div. of Transp. Communications
Intern. Union v. Chicago & N orth W estern Transp. Co., 964 F.2d 684, 686
n.2 (7th Cir. 1992).1
Becau se Mr. Fischer has requested relief from the w rong court,
w e must d eny his petition for a w rit of mand am u s. Mr. Fischer
should file a timely motion to reopen the time for filing a notice of
appeal w ith the d istrict cou rt. The motion should explain the
circumstances by w hich Mr. Fischer learned that the d istrict court
entered the ord er granting the Government’s motion to renew the
forfeiture jud gment and should explain w hether any party w ould be
prejud iced by reopening the time to appeal. See Fed . R. App. P.
4(a)(6).
PETITION for WRIT of MAN DAMUS DEN IED

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