UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
May 31, 2012
UNITED STATES OF AMERICA, EX REL. GORDON GREEN, PLAINTIFF,
SERVICE CONTRACT EDUCATION AND TRAINING TRUST FUND, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Gordon Green has filed a motion nunc pro tunc for extension
of time to file notice of appeal of the February 13, 2012 Order that
dismissed his complaint against the Service Contract Education and
Training Trust Fund ("SCETTF"), the Laborers' International Union of
North America ("LIUNA"), and five government contractors.*fn1
Green brought his action as a relator under the False Claims
Act ("FCA"), 31 U.S.C. §§ 3729-33, alleging that the defendants
engaged in a scheme to defraud the United States. The United States
declined to intervene in the action. Green filed a notice of appeal of
the dismissal on April 11, 2012, 58 days after entry of the final
order. On May 1, 2012, 78 days after the final order, and following an
order by the Court of Appeals for the District of Columbia
Circuit directing Green to show cause why his appeal should not dismissed as untimely, Green filed the present motion to extend time to appeal.
The deadline to file a notice of appeal is "mandatory and jurisdictional." Browder v. Dir., Dep't of Corr. of Illinois, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)); see also Bowles v. Russell, 551 U.S. 205, 214 (2007) (emphasizing that "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement"). Under Federal Rule of Appellate Procedure 4 and 28 U.S.C. § 2107, a party in a civil case must file a notice of appeal within 30 days of entry of an appealable order. Fed. R. App. P. 4(a)(1)(A); 28 U.S.C. § 2107(a). If, however, the United States or an officer or agency of the United States is a party to the action, the time to file notice of appeal is 60 days. Fed. R. App. P. 4(a)(1)(B); 28 U.S.C. § 2107(b). In United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 937 (2009), the Supreme Court held that where, as here, "the United States has declined to intervene in a privately initiated FCA action, it is not a 'party' to the litigation for purposes of either § 2107 or Federal Rule of Appellate Procedure 4." Accordingly, the 30-day time limit governs the filing of a notice of appeal in a privately initiated FCA action, id., and Green's notice, filed 58 days after entry of the final order, is untimely.
In his motion for extension, Green's counsel concedes that the notice of appeal was untimely, but states that he was "unaware of the holding in Eisenstein when deciding when to file Mr. Green's notice of appeal" and that the Memorandum Opinion setting forth the reasons for dismissing the case was "detailed and complex, requiring careful analysis to determine the appropriateness of an appeal." (Pl.'s Mot. Nunc Pro Tunc for Extension of Time to File Notice of Appeal ("Pl.'s Mot.") at 3.) Green's counsel contends that these factors warrant a finding of "excusable neglect" entitling Green to an extension. (Id. at 2-3.) Defendants SCETTF and LIUNA oppose Green's motion.
Fed. R. App. P. 4(a)(5)(A) provides: The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
Fed. R. App. P. 4(a)(5)(A) (emphasis added). As the text of the rule makes clear, regardless of a showing of good cause or excusable neglect, a district court is empowered to grant an extension only when a party files a motion seeking such relief no later than 30 days after the time for appeal expires. Green's deadline to appeal was March 14, 2012 and, accordingly, his deadline to move for an extension of time to appeal was April 13, 2012. Because Green did not move for an extension until May 1,his motion is untimely and no rule or statute empowers a district court to provide him relief. See Bowles, 551 U.S. at 214-15 (finding "no authority to create equitable exceptions to jurisdictional requirements" and accordingly affirming the dismissal of an appeal brought after a district court purported to extend a party's time for filing the appeal beyond the period allowed by Rule 4 and 28 U.S.C. § 2107).
Green contends in his reply that a district court possesses the
authority to grant his untimely motion under the D.C. Circuit's
decision in Anderson v. District of Columbia, 72 F.3d 166 (D.C. Cir.
1995) (per curiam), which held that a timely notice of appeal was
valid, even though the notice mistakenly stated that appeal was being
taken to the United States Supreme Court rather than the United States
Court of Appeals. The Anderson decision noted that the district court
had denied the plaintiff's motion under Rule 4 to correct his error on
the grounds that a motion for extension of time to file notice of
appeal must be filed no later than 30 days after the time for noting
an appeal has passed.*fn2 Id. at 167. However, in
holding that the notice of appeal was valid, the Anderson court did
not endorse the view, advanced by Green, that a district court could
grant a motion for extension outside the statutory period
prescribed by Rule 4. Rather, the court's decision rested on its
interpretation of a separate provision, Rule 3(c), which requires that
a notice of appeal designate the name of the court to which appeal is
taken, and with which the court found the plaintiff's notice
sufficiently complied "because it was obvious in which court his
appeal properly lay." Id. at 168. Anderson therefore does not provide
authority for the proposition that a district court may consider a
motion for extension of time to appeal filed outside the statutorily
prescribed period. Neither do the other cases that Green cites without
elaboration favor his position. See, e.g., Farmhand, Inc. v. Anel
Eng'g Indus., Inc., 693 F.2d 1140, 1145-46 (5th Cir. 1982) (noting
that, following notice of appeal, district courts maintain
jurisdiction as to unrelated matters and may take action in aid of the
appeal such as making clerical corrections); Athridge v. Iglesias, 464
F. Supp. 2d 19, 22-23 (D.D.C. 2006) (same).
Green emphasizes that his notice of appeal was filed within 60 days of entry of the final order, seeming to suggest that his untimely motion for extension somehow relates back to the notice of appeal or that the filing of the notice itself functioned as a request for an extension. (See Pl.'s Reply at 2 ("Mr. Green's notice was filed within the sixty-day time period, and the motion to allow the already-filed notice to be effective may be considered.") (emphasis in original).) Eleven circuits have considered whether a notice of appeal can be treated as a motion for extension of time to appeal under Rule 4(a)(5) and all have answered in the negative. Wyzik v. Emp. Benefit Plan of Crane Co., 663 F.2d 348, 348 (1st Cir. 1981) (per curiam)*fn3 ; Campos v. LeFevre, 825 F.2d 671, 675-76 (2d Cir. 1987); Herman v. Guardian Life Ins. Co. of Am., 762 F.2d 288, 289-90 (3rd Cir. 1985) (per curiam); Myers v. Stephenson, 748 F.2d 202, 204 (4th Cir. 1984); Bond v. W. Auto Supply Co., 654 F.2d 302, 303-04 (5th Cir. 1981); Pryor v. Marshall, 711 F.2d 63, 64-65 (6th Cir. 1983); United States ex rel. Leonard v. O'Leary, 788 F.2d 1238, 1239-40 (7th Cir. 1986) (per curiam); Campbell v. White, 721 F.2d 644, 645-46 (8th Cir. 1983); United States ex rel. Haight v. Catholic Healthcare W., 602 F.3d 949, 956 (9th Cir. 2010); Mayfield v. U.S. Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir. 1981) (per curiam); Brooks v. Britton, 669 F.2d 665, 667 (11th Cir. 1982). The D.C. Circuit has not passed on the issue. Nonetheless, the Supreme Court's exhortation in Bowles, 551 U.S. at 214-15, that federal courts not fashion equitable exceptions to the jurisdictional requirement of a timely appeal counsels strongly in favor of following the considered, uniform guidance of sister circuits. The same result, moreover, is compelled by the Supreme Court's unanimous decision in Eisenstein. There, the Court chose to affirm the dismissal of a relator's appeal rather than to remand for the district court to consider whether to construe as a motion for extension the untimely notice of appeal that the relator filed, as Green did here, in reliance on the 60-day deadline, or to provide some other relief. Eisenstein, 556 U.S. at 937. Accordingly, it is hereby
ORDERED that the plaintiff's motion  nunc pro tunc for an extension of time to file a notice of appeal be, and hereby is, DENIED.