Counsel in the instant matter signed the notice of appeal only twenty days after judgment, and thus had ample opportunity to learn that it had not been filed. This case differs markedly from Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975) (per curiam), overruled on other grounds in Campos v. LeFevre, 825 F.2d 671 (2d Cir. 1987). In Stirling, a case in which we held that an appellant had made a prima facie showing of excusable neglect, we confronted the following situation:
"Because the timely filing of a notice of appeal is `mandatory and jurisdictional,' United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), compliance with the provisions of [Rules 3 and 4] is of the utmost importance." Advisory Committee Note to Fed.R.App.P. 3; see Stirling v. Chemical Bank, 511 F.2d 1030, 1031 (2d Cir. 1975); Edwards v. Doctors Hospital, Inc., 242 F.2d 888, 891 (2d Cir. 1957), cert. denied, 356 U.S. 930, 78 S.Ct. 770, 2 L.Ed.2d 761 (1958). This schedule for the filing of notice of appeal is not, however, without a certain degree of flexibility.
Rule 4(a), F.R.A.P. Although the record in this case does not disclose the making of such a motion, the notice of appeal, which was filed within the extension period, permits the district court to entertain a request for an extension at a later date. Stirling v. Chemical Bank, 2 Cir., 1975, 511 F.2d 1030, 1032; see note 4 infra; cf. Alley v. Dodge Hotel, 1974, 163 U.S.App.D.C. 320, 501 F.2d 880, 886. Appellant contends that the July 19 attempted filing was timely, within the rule.
Under the old Rule 4(a), some courts held that where a notice of appeal was filed within 60 days of the district court's order and was coupled with a prima facie showing of excusable neglect for the filing beyond the initial 30-day period, the district court was not precluded from exercising its discretion to treat the notice of appeal as the substantial equivalent of a motion to extend the time on the ground of excusable neglect. See, e. g., Stirling v. Chemical Bank, 511 F.2d 1030, 1031, 1032 (2d Cir. 1975); Evans v. Jones, 366 F.2d 772 (4th Cir. 1966). Prior to amendment, Rule 4(a) provided in relevant part:
We write here to address the issue of our jurisdiction over this appeal in view of the fact that Campos's appeal was plainly untimely as not having been filed within the thirty days initially allowed by Fed.R.App.P. 4(a)(1), though it was filed within an additional thirty days thereafter. Under Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975), where we took what has been referred to as the "permissive" view of Fed.R.App.P. 4(a) as it then read, Campos's notice of appeal could be treated as a motion for an extension of time if coupled with a prima facie showing of excusable neglect. We said in Stirling that "the filing of the notice of appeal within 60 days, coupled with a prima facie showing of excusable neglect, and the timely service of the notice of appeal on the opposing parties, constituted a sufficient manifestation on the part of the appellants to permit the district court, in the exercise of its discretion, to treat the notice of appeal as the substantial equivalent of a motion to extend the time because of excusable neglect."
None of the cases relied upon by appellants holds to the contrary. In Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975), and Evans v. Jones, 366 F.2d 772, 773 (4th Cir. 1966), the Second and Fourth Circuits remanded to the respective district court for a determination whether excusable neglect was shown. In Doctor v. Seaboard Coast Line Railroad, 540 F.2d 699, 704 (4th Cir. 1976), the Fourth Circuit expressly refused to consider the issue of timeliness of the notice of appeal.
This circuit, and others, permitted the request to be made thereafter. See, e. g., Lashley v. Ford Motor Co., 518 F.2d 749 (5th Cir. 1975); Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975); Reed v. Michigan, 398 F.2d 800 (6th Cir. 1968); Evans v. Jones, 366 F.2d 772 (4th Cir. 1966). But see, Merrill Lynch, Pierce, Fenner Smith v. Kurtenback, 525 F.2d 1179 (8th Cir. 1975).
Id.Credit Co. Ltd. v. Arkansas Cent. Ry., 128 U.S. 258, 9 S.Ct. 107, 32 L.Ed. 448 (1888); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975); Smith v. United States, 425 F.2d 173 (9th Cir. 1970). The Supreme Court in Credit Co. Ltd. stated,
Thus, under certain circumstances, a party may make a motion to extend the time for appeal on the basis of excusable neglect after the expiration of the maximum extension period if the appellant filed a notice of appeal during that period. Id. So, for example, in Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975), appellant's representatives were instructed to file notices of appeal on a specific date and failed to do so. Appellants learned of this only after the period to appeal had run; thus, they filed their notices of appeal forty-one days after entry of the orders appealed from.
Id. In Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975), the court of appeals concluded that a district court has in appropriate circumstances the power to grant an extension nunc pro tunc. The district court dismissed complaints in two actions on September 30, 1974.