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
...