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Trevor Burt v. National Republican Club of Capitol Hill

April 3, 2012


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


On December 8, 2011, this Court granted summary judgment to defendants on plaintiff's employment discrimination suit. Federal Rule of Appellate Procedure 4(a)(1)(A) requires a notice of appeal to be filed within thirty days of entry of judgment. Plaintiff missed the deadline by two days, so he now moves this Court to extend his time to file a notice of appeal. For the reasons set forth below, the Court will grant plaintiff's motion.


This matter arises from plaintiff's employment discrimination suit alleging that defendants discriminated against him on the basis of race in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the District of Columbia Human Rights Act, D.C. Code § 2-1401 et seq. The Court granted defendants' motion for summary judgment on December 8, 2011. See Burt v. Nat'l Republican Club of Capitol Hill, No. 10-cv-1911, 2011 WL 6097981 (D.D.C. Dec. 8, 2011).*fn1 Plaintiff's previous counsel sent plaintiff an e-mail on December 12, 2011, relaying the Court's decision, excerpting the Court's opinion, informing plaintiff of the thirty-day filing period, and notifying plaintiff that their representation agreement did not cover "post judgment litigation" and that plaintiff would "need to seek other counsel to advise and/or represent you in your appeal." (Pl.'s Mot. Ex. 1; see also Pl.'s Reply at 1 n.1.) Plaintiff contacted current counsel, Hnin Khaing, via e-mail on January 4, 2012, but due to scheduling conflicts, Khaing could not meet with plaintiff until January 10, and at that time, she agreed to represent him. (Pl.'s Mot. at 2-3.) On January 9, 2012, the period to file a notice of appeal lapsed. See Fed. R. App. P. 4(a)(1)(A). On January 11, 2012, plaintiff, through an associate of Khaing's, filed a notice of appeal. (Notice of Appeal [Dkt. No. 24].)

On February 6, 2012, plaintiff timely filed a motion requesting that this Court extend the deadline to file a notice of appeal to January 11, 2012. See Fed. R. App. P. 4(a)(5)(A)(i). Plaintiff alleges that the following circumstances amount to both "good cause" and "excusable neglect" justifying the Court's granting of such extension under Rule 4(a)(5): "(1) termination of representation of previous counsel; (2) improper advice by previous counsel; (3) lack of timely knowledge of this Court's entry of summary judgment; (4) lack of sufficient time to seek new counsel; and (5) lack of financial ability to secure new counsel." (Pl.'s Mot. at 1-2.) Plaintiff's motion, defendants' opposition, and plaintiff's reply are now before the Court.



The filing of a timely notice of appeal is both mandatory and jurisdictional. Moore v. S.C. Labor Bd., 100 F.3d 162, 163 (D.C. Cir. 1996) (per curiam) (citing Browder v. Dir., Dep't of (district court order stating "Motion for Summary Judgment . . . is GRANTED" constitutes "a judgment under Rule 58"). The December 8, 2011 Order in this case states that "Motion for Summary Judgment . . . is GRANTED" and thus beyond any question qualifies as a "judgment" under Rule 58.

Corr., 434 U.S. 257, 264 (1978)). Parties must file a notice of appeal within thirty days after judgment or the order appealed from is entered. Fed. R. App. P. 4(a)(1)(A). However, a district court retains discretion to determine whether plaintiff has shown "excusable neglect" or "good cause" sufficient to warrant the filing of a notice of appeal after the prescribed deadline has passed. See Fed. R. App. P. 4(a)(5)(A) ("The district court may extend the time to file a notice of appeal . . . ."); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 n.5 (D.C. Cir. 2001) ("We review [Rule 4(a)(5)] orders on an abuse of discretion standard, see Johnson v. Lehman, 679 F.2d 918, 919-20 (D.C. Cir. 1982)[.]").

"The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant." Fed. R. App. P. 4(a)(5)(A)(ii), Advisory Committee Notes to 2002 Amendments. In contrast, the "good cause" standard applies where the motion for extension is "occasioned by something that is not within the control of the movant . . . . If, for example, the Postal Service fails to deliver a notice of appeal . . . ." Id. Because the reasons given for delay were largely within plaintiff's control, the question before the Court is whether plaintiff has demonstrated "excusable neglect" to justify an extension of time to file his notice of appeal.


The Supreme Court established, in Pioneer Investment Services, Inc. v. Brunswick Associates, Ltd., 507 U.S. 380, 392-94 (1993),that excusable neglect is an "elastic concept" encompassing "situations in which the failure to comply with a filing deadline is attributable to negligence."*fn2 A determination of whether neglect is "excusable" is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395. The relevant factors include: (1) the danger of prejudice to the other party; (2) the length of the delay and potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. See id. Considering all the relevant facts, the Court finds that plaintiff has shown that his delay in filing a notice of appeal was due to excusable neglect.

Defendants argue that they will be "heavily prejudiced by having to spend the time, effort and expense to oppose this frivolous motion and oppose the appeal if Plaintiff's Motion is ultimately granted . . . ." (Defs.' Opp'n at 6.) This argument is unpersuasive, for if accepted, it would eviscerate the very concept of "excusable" neglect. No neglect would ever be excusable if the prejudice of "having to spend the time, effort and expense" to oppose a motion for extension or to litigate an appeal were dispositive in this context. (See id.) Furthermore, courts in this district have determined that the first two Pioneer Investment Services factors "are of minimal relevance when applied to Rule 4(a)(5)(A)(ii) considering that a related motion can only be considered when it is brought within 30 days after the Rule 4(a)(1) filing deadline." Anyanwutaku v. Wilson, No. 00-cv-2296, 2006 WL 1663407, at *3 (D.D.C. June 12, 2006) (citing Webster, 270 F. Supp. 2d at 14).

Defendants also point out that plaintiff received written notice from his former counsel that he had thirty days from December 8, 2012, to file a notice of appeal under Rule 4. (See Defs.' Opp'n at 1-2; Pl.'s Mot. Ex. 1, at 2; see also Pl.'s Reply at 1 n.1.) Plaintiff was thus on notice, bringing the reason for delay further within his control and weighing against a finding of excusable neglect. See Pioneer, 507 U.S. at 395. Furthermore, courts have declined to find excusable neglect in cases factually similar to this one-albeit with the notable distinction that in those cases, the plaintiffs had a past history of either knowing about or missing filing deadlines. See Slovinec v. Amer. Univ., 552 F. Supp. 2d 12, 14 (D.D.C. 2008) (no excusable neglect where pro se litigant alleged "pressurized job search" and limited resources as reasons for delay, as litigant's court filings demonstrated thorough knowledge of deadlines); Anyanwutaku, 2006 WL 1663407, at *2 (no excusable neglect where ...

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