MEMORANDUM OPINION
TANYA
S. CHUTKAN UNITED STATES DISTRICT JUDGE
Plaintiff
Carlos Arturo Patino-Restrepo, who is incarcerated and is
proceeding pro se in this Freedom of Information Act
case, seeks to appeal this court's March 30, 2017 order,
ECF No. 23, granting summary judgment to Defendants. Because
federal entities are parties to this litigation, the deadline
for filing a notice of appeal from the order was May 29,
2017. See Fed. R. App. P. 4(a)(1)(B)(ii) (allowing
sixty days to appeal an order involving a federal entity).
Plaintiff dated his Notice of Appeal May 25, 2017, and the
clerk's office stamped the document
“received” on June 12, 2017, eighteen days after
the appeal deadline had passed. See ECF No. 24. The
Court of Appeals subsequently ordered Plaintiff to show cause
why the appeal should not be dismissed as untimely.
See ECF No. 28.
Although
the case docket indicates that the summary judgment order was
mailed to Plaintiff the same day it was entered (March 30,
2017), Plaintiff responded to the Court of Appeals' show
cause order with a declaration asserting that he did not
receive the district court's order via mail. ECF No. 29,
Pls. Decl. n.1. Plaintiff attached to his declaration an
“Inmate Request to Staff” form, in which a prison
staff member verified that prison records indicated Plaintiff
had not received any legal mail between March 30 and April
26, 2017. Id. n.1; id. Attachment A.
Plaintiff explains that the dates on the form cover
“the period in which the judgment was entered and would
have been forwarded by the Clerk's Office.”
Id. n.1.
Plaintiff
does not recall the precise date on which he learned of the
March 30 order, and his declaration is confusing in that
regard. In one part of the declaration he states: “The
notice of appeal is dated May 25, 2017. It is Appellant's
belief that this is the date in which the [Electronic Law
Library (“ELL”)] system was updated during the
month of May.” Id. n.3. In another part of the
declaration, he states he is “certain that he received
notice” of the March 30 order between May 23 and May
30. Id. ¶ 2. Plaintiff claims that the prison
where he is located updates the ELL with cases from
Lexis during the final week of each month, but only
with cases published by the twenty-first day of the preceding
month. Id. n.2. Because this court issued its order
after March 21, it was not available on the ELL until the
last week of May. Id.
After
receiving Plaintiff's declaration, the Court of Appeals
remanded the case to this court to determine two questions:
1) Whether Plaintiff's notice of appeal and declaration,
when considered together, constitute either a Rule 4(a)(5)
motion for extension of time to appeal or a Rule 4(a)(6)
motion to reopen the time to file an appeal?
2) If so, whether the motion should be granted.
ECF No. 28.
Before
addressing these questions, the court notes that the issues
raised here may be moot. Applying the “mailbox”
rule set forth in Houston v. Lack, 487 U.S. 266
(1988), it is unclear whether Plaintiff's Notice of
Appeal was untimely. In Houston, the court stamped
an incarcerated pro se plaintiff's notice of
appeal “received” one day after the appeal
deadline had passed. Id. at 268. But prison mail
logs established that plaintiff had delivered the notice of
appeal to prison officials within the time-period for filing
an appeal. Id. at 268-69. Because the plaintiff had
no choice but to entrust the forwarding of mail to prison
authorities, the court adopted the “mailbox rule,
” holding that the “notice of appeal was filed at
the time [he] delivered it to the prison authorities for
forwarding to the court clerk.” Id. at 275-76
(citing Fed. R. App. P. 4(a)); cf. Loper v.
Reed, No. 93-5065, 1993 WL 318881, at *1 (D.C. Cir. Aug.
3, 1993) (dismissing appeal for lack of jurisdiction because
the notice of appeal was untimely and noting that there was
no “evidence that appellant complied with the
requirements of Houston v. Lack 487 U.S. 266
(1988)”).
Applying
the mailbox rule here, Plaintiff's Notice of Appeal was
timely if he delivered it to prison authorities for
forwarding to the court by May 29, 2017. But there is no
evidence in the record regarding whether he did so.
Accordingly, there is insufficient evidence in the record
that Plaintiff's Notice of Appeal was timely.
A.
Federal Rule of Appellate Procedure 4(a)(5): Motion for
Extension of Time
Rule
4(a)(5) allows the district court to extend the time for
filing an appeal, so long as the motion for the extension is
filed within thirty days after the deadline for filing the
notice of appeal.[1] Although Plaintiff's Notice of Appeal
was date stamped received within thirty days after the May 29
appeal deadline, Defendants argue that Plaintiff's
“notice” of appeal cannot substitute for a Rule
4(a)(5) “motion” seeking an extension of the
deadline to appeal.
“[T]his
Circuit has not considered the issue, ” but
“eleven circuits have considered whether a notice of
appeal can be treated as a motion for extension of time under
Rule 4(a)(5) and all have answered in the negative.”
Bradac v. Jewell, No. CV 13-455 (RBW), 2014 WL
12664800, at *1 n.1 (D.D.C. Aug. 20, 2014) (alterations and
internal quotation marks omitted) (citing Hickey v.
Scott, 987 F.Supp.2d 85, 89 (D.D.C. 2013)); see
United States ex rel. Green v. Serv. Contract Educ. &
Training Trust Fund, 863 F.Supp.2d 18, 20-21 (D.D.C.
2012). Rather than reach a decision on the Rule 4(a)(5) issue
here, this court will analyze the facts under Rule 4(a)(6).
B.
Federal Rule of Appellate Procedure 4(a)(6): Reopening the
...