MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
The
Court is in receipt of the October 11, 2019 Order to this
Court from the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”).
ECF No. 34; McIntyre v. WMATA, 19-7061, Oct. 11,
2019 Order. On June 21, 2019, the D.C. Circuit ordered
Plaintiff to show cause as to why her appeal should not be
dismissed as untimely. Id. at June 21, 2019 Order.
Plaintiff filed a response to that order to show cause.
Following Plaintiff's response, on October 11, 2019, the
D.C. Circuit, “remanded to the district court to
determine whether appellant's response to the order to
show cause, together with the notice of appeal, should be
construed as a motion for extension of time to file a notice
of appeal under Federal Rule of Appellate Procedure 4(a)(5)
and, if so, whether the motion should be granted.”
Id. at Oct. 11, 2019 Order. On careful review of
both questions presented by the D.C. Circuit, the Court
concludes that Plaintiff's response to the order to show
cause, together with her notice of appeal, should not be
construed as a motion for an extension of time to file a
notice of appeal under Rule 4(a)(5). However, even if the
Court were to construe these documents as a motion for an
extension of time to file a notice of appeal, the Court
concludes that such a motion should not be granted.
On May
15, 2019, this Court issued a Memorandum Opinion and Order
granting Defendant's Motion for Summary Judgment.
See ECF Nos. 26, 27. On June 17, 2019, Plaintiff
filed her notice of appeal of the Court's May 15, 2019
Order. Pursuant to Federal Rule of Appellate Procedure 4(a),
“the notice of appeal … must be filed with the
district clerk within 30 days after the entry of the judgment
or order appealed from.” Fed. R. App. P. 4(a)(1)(A).
Here, it is undisputed that Plaintiff's notice of appeal
was filed outside the prescribed 30-day time limit.
Pursuant
to Federal Rule of Appellate Procedure 4(a)(5), “[t]he
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). In this case, Plaintiff failed to file a
motion requesting that the Court extend the time to file a
notice of appeal. Instead, Plaintiff simply filed her appeal
outside the time limit prescribed by Rule 4(a). In response
to this late notice of appeal, the D.C. Circuit ordered that
Plaintiff show cause as to why her appeal should not be
dismissed as untimely. McIntyre v. WMATA, 19-7061,
June 21, 2019 Order. On July 22, 2019, Plaintiff filed her
response to the D.C. Circuit's show cause order. The D.C.
Circuit remanded to this Court the issue of whether or not
Plaintiff's appeal can be construed as timely.
I.
Should Plaintiff's response to the D.C. Circuit's
order to show cause, together with the
notice of appeal, be construed as a motion for an extension
of time to file a notice of appeal?
The
first question before the Court is whether or not
Plaintiff's late notice of appeal, together with her
response to the D.C. Circuit's show cause order, should
be construed as a motion for an extension of time to file a
notice of appeal under Federal Rule of Appellate Procedure
4(a)(5). The Court determines that the answer is no.
In
answering this question, the Court is guided by Judge Rudolph
Contreras's excellent reasoning in Alemu v.
Department of For Hire Vehicles, No. 17-1904, 2019 WL
2745067 (D.D.C. July 1, 2019). In Alemu, as in this
case, the D.C. Circuit directed the court to consider whether
to construe the plaintiff's response to the D.C.
Circuit's order to show cause, combined with his untimely
notice of appeal, as a motion for an extension of time to
file a notice of appeal. 2019 WL 2745067, at *1. Judge
Contreras ultimately found that Plaintiff's filings could
not combine to constitute a motion for an extension of time
to file a notice of appeal under Rule 4(a)(5). Id.
at *1-3.
First,
as in Alemu, the Court concludes that
Plaintiff's late notice of appeal, together with her
response to the D.C. Circuit's show cause order, cannot
be construed as a motion for an extension of time to file a
notice of appeal because Plaintiff failed to file a motion
seeking such relief. Id. at *2. Pursuant to Federal
Rule of Appellate Procedure 4(a)(5), a district court may
grant an extension of time to file a notice of appeal if
“the party so moves.” Fed. R. App. P.
4(a)(5)(A)(i) (emphasis added). A prior incarnation of this
Rule implied that informal pleadings could be used to infer
that a request for an extension had been made. In the
Advisory Committee's Notes to the 1979 Amendment, the
Committee explained that “[u]nder the [pre-1979
amendment] rule there is a possible implication that prior to
the time the initial appeal time has run, the district court
may extend the time on the basis of an informal
application.” Fed. R. App. P. 4(a)(5) Advisory
Committee's Note to the 1979 Amendment. However, the 1979
amendment, which has not been changed in relevant part,
“require[s] that the application must be made by
motion.” Id.
The
D.C. Circuit has never considered whether or not an untimely
notice of appeal can be treated as an implied motion for an
extension of time under Rule 4(a)(5). Alemu, 2019 WL
2745067, at *2 n.1. However, eleven circuits which have
considered the issue have found that an untimely notice of
appeal cannot be treated as a motion for an extension of time
to file an appeal. Wyzik v. Emp. Benefit Plan of Crane
Co., 663 F.2d 348, 348 (1st Cir. 1981) (per curiam);
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).
Additionally, other district courts within this Circuit have
refused to treat an untimely notice of appeal as a motion for
an extension of time to file an appeal. See U.S. ex rel.
Green v. Service Contract Educ. and Training Trust Fund,
863 F.Supp.2d 18, 20-21 (D.D.C. 2012); Hickey v.
Scott, 987 F.Supp.2d 85, 89 (D.D.C. 2013);
Alemu, 2019 WL 2745067, at *2. The cited cases-with
the exception of Alemu- involved only a notice of
appeal and not a response to a circuit court's order to
show cause. However, the Court finds that Plaintiff's
response does not change Rule 4(a)(5)'s requirement that
requests for an extension of time be made by motion. As such,
in accord with the bulk of authority, the Court finds that
Plaintiff's late notice of appeal, together with her
response to the D.C. Circuit's show cause order, cannot
be construed as a motion for an extension of time to file a
notice of appeal under Rule 4(a)(5).
Moreover,
even if the Court were to ignore Rule 4(a)(5)'s motion
requirement, Plaintiff's response to the D.C.
Circuit's order to show cause was filed too late.
Alemu, 2019 WL 2745067, at *2-3. Pursuant to Rule
4(a)(5), a party may move for an extension of time to file an
appeal if the party “so moves no later than 30 days
after the time prescribed by this Rule 4(a) expires.”
Fed. R. App. P. 4(a)(5)(A)(i). Plaintiff did not file her
response to the D.C. Circuit's order to show cause until
July 22, 2019, which is later than 30 days after the time
prescribed by Rule 4(a) expired. As such, even if the Court
were to construe Plaintiff's untimely notice of appeal
and response as a motion for an extension of time, that
motion for an extension of time would be untimely.
The
United States Supreme Court has held that time prescriptions
imposed by Congress are jurisdictional. Hamer v.
Neighborhood Housing Serv. of Chicago, 138 S.Ct. 13, 21
(2017). The applicable time prescription here, Federal Rule
of Appellate Procedure 4(a)(5)(A) is prescribed by Congress.
28 U.S.C. § 2107(c). Accordingly, this Court follows the
decision in Alemu and finds that the Rule
4(a)(5)(A)'s time limit is jurisdictional. 2019 WL
2745067, at *2-3; see also United States v. Kalb,
891 F.3d 455, 460 (3d Cir. 2018); Nestorovic v. Metro.
Reclamation District of Greater Chicago, 926 F.3d 427,
431 (7th Cir. 2019); Evans v. Greentree Servicing,
LLC, No. 17-6479, 2018 WL 1326651, at *1 (6th Cir. Feb.
8, 2018). Because the time limit for filing a motion for an
extension of time is jurisdictional, and because construing
Plaintiff's untimely notice of appeal, together with her
response to the D.C. Circuit's order to show cause, would
be equivalent to accepting an untimely motion for an
extension, the Court does not consider Plaintiff's
filings to be a proper Rule 4(a)(5) motion. See
Alemu, 2019 WL 2745067, at *2-3.
II.
Should a motion for an extension of time to file a notice of
appeal be granted?
For the
reasons explained above, the Court concludes that
Plaintiff's untimely notice of appeal, together with her
response to the D.C. Circuit's order to show cause,
should not be construed as a timely motion for an extension
of time to file a notice of appeal under Federal Rule of
Appellate Procedure 4(a)(5). However, even if the Court were
to construe Plaintiff's filings as such a motion, the
Court would not grant that motion because Plaintiff has not
shown “excusable neglect or good cause.” Fed. R.
App. P. 4(a)(5)(A)(ii).
In her
response to the D.C. Circuit's order to show cause,
Plaintiff stated that she was not represented by counsel when
she filed her notice of appeal. McIntyre v. WMATA,
19-7061, Plaintiff's July 22, 2019 Response. She
contended that she filed her notice of appeal in good faith
believing that the date that she submitted her notice was
within the 30-day time limit. Plaintiff explained, “I
was under the impression that June 15, 2019 would meet the
30-day mark. Considering June 15th was on a Saturday, I
submitted my appeal in good faith on the following business
day which was June 17th, 2019.” Id. The
remainder of Plaintiff's response argues the merits of
her appeal but provides no further justification for filing
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