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Alemu v. Department of For Hire Vehicles

United States District Court, District of Columbia

July 1, 2019

MISGANAW ALEMU, et al., Plaintiff,
v.
DEPARTMENT OF FOR HIRE VEHICLES, FORMERLY KNOWN AS DC TAXICAB COMMISSION, et al., Defendants.

          MEMORANDUM OPINION RE DOCUMENT NO. 25

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         Declining to Construe Plaintiff's Late Notice of Appeal and Response to Order to Show Cause as a Motion for and Extension of Time

         I. INTRODUCTION

         Plaintiff Gashaw Birbo (“Mr. Birbo”) attempts to appeal from a dismissal of his case in the United States District Court for the District of Columbia against Defendants Department of For Hire Vehicles and Jeffrey Schaeffer. Mr. Birbo filed his notice of appeal one day after the thirty-day deadline prescribed by Federal Rule of Appellate Procedure 4(a)(1)(A). The United States Court of Appeals for the D.C. Circuit (“Circuit Court”) issued an order to show cause (“OSC”) directing Mr. Birbo to explain why it should not dismiss his appeal as untimely. Mr. Birbo filed a response. The Circuit Court has now directed this Court to consider whether to construe Mr. Birbo's response to the OSC, combined with his untimely notice of appeal, as a motion for an extension of time to file a notice of appeal (“Motion for Extension”), and if so construed, whether to grant the motion. For the reasons set forth below, this Court declines to construe Mr. Birbo's late notice of appeal and OSC response as a Motion for Extension and would deny such a motion on the merits regardless.

         II. BACKGROUND

         This Court dismissed Mr. Birbo's initial case against Defendants on August 21, 2018. Order, ECF No. 23. Mr. Birbo appealed that dismissal on September 21, 2018, one day after his thirty-day deadline prescribed by Federal Rule of Appellate Procedure 4(a)(1)(A). Notice of Appeal, ECF No. 25.

         The Circuit Court issued an OSC directing Mr. Birbo to explain why it should not dismiss his appeal as untimely. USCA Case 18-7145, Order, February 1, 2019. Mr. Birbo filed a response to the OSC on March 4, 2019 alleging that he arrived at the Court to file a notice of appeal on September 20, 2018, the last day of his thirty-day deadline. Fed. R. App. P. 4(a)(1)(A); USCA Case 18-7145, Order Resp., March 4, 2019. At the courthouse, Mr. Birbo alleges that a clerk's office employee incorrectly advised him that the deadline for the notice of appeal was not until the following day, September 21, 2018. Id. Even though there is no downside to filing an appeal one day early, Mr. Birbo nevertheless implausibly alleges that instead of filing the notice of appeal during his first visit to the courthouse, he came to the courthouse again the following day and filed the appeal one day late. Id. This Court will now decide whether to construe Mr. Birbo's late notice of appeal and OSC response together as a Motion for Extension, and if so construed, whether to grant the motion.

         III. ANALYSIS

         This Court will not construe Mr. Birbo's late appeal and OSC response as a Motion for Extension. Requests for additional time to file an appeal must be made by motion and must be timely. See Fed. R. App. P. 4(a)(5)(A). Mr. Birbo failed to meet either of those requirements. But even if this Court did construe Mr. Birbo's late appeal and OSC response as a Motion for Extension, it would deny the motion because Mr. Birbo has failed to establish the requisite excusable neglect or good cause. See id.

         A. Mr. Birbo's late notice of appeal and OSC response cannot be construed as a Motion for Extension.

         This Court declines to construe Mr. Birbo's late appeal and OSC response as a Motion for Extension because 1) he did not formally move for an extension of time and 2) his OSC response was filed too late.

         1. Motion Requirement

         This Court will first consider whether Mr. Birbo can obtain an extension of time to file an appeal without making a formal motion for such relief. It concludes that he cannot. Rule 4(a)(5)(A) allows a court to grant a party an extension of time to file an appeal “if a party so moves… after the time prescribed by this Rule 4(a) expires[.]” Fed. R. App. P. 4(a)(5)(A) (emphasis added). The old version of Rule 4(a)(5)(A) implied that a district court could grant an extension based on an informal application. See Fed. R. App. P. 4 Advisory Committee's Note to the 1979 Amendment. The new version of Rule 4(a)(5)(A) requires that an extension of time be sought by motion. See Id. (“[t]he [rule requires] that the application must be made by motion”); see also Hickey, 987 F.Supp.2d at 89. The Plaintiff in Hickey was denied an extension of time to file an appeal because this Court concluded that his untimely appeal and subsequent pleadings would not suffice in the absence of a formal Motion for Extension. See id.

         Here, it is unclear whether this Court can construe Mr. Birbo's untimely notice of appeal and OSC response together as a Motion for Extension.[1] However, the text of the relevant rule, together with its advisory committee's note, suggests that a court may only grant an extension of time to file an appeal when a party files a motion seeking such relief. See Fed. R. App. P. 4(a)(5)(A); see also Fed. R. App. P. 4 Advisory Committee's Note to the 1979 Amendment. Like the Plaintiff in Hickey, Mr. Birbo ...


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