Sonya D. Pettaway v. Department of Education

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999656743-2] Originating case number: 3:13-cv-00241-HEH,11-36507-DOT,11-03285-DOT Copies to all parties and the district court/agency. [999729674]. Mailed to: Sonya Pettaway. [15-1895]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1895

SONYA D. PETTAWAY,
Plaintiff - Appellant,
v.
DEPARTMENT OF EDUCATION,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:13-cv-00241-HEH)

Submitted:

December 22, 2015

Before MOTZ and
Circuit Judge.

THACKER,

Circuit

Decided:

Judges,

and

January 5, 2016

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Sonya D.
Assistant
Appellee.

Pettaway, Appellant Pro Se.
Robert P. McIntosh,
United States Attorney, Richmond, Virginia, for

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sonya

D.

Pettaway

seeks

to

appeal

the

district

court’s

order denying her motion to dismiss, which the district court
construed as a Fed. R. Civ. P. 60(b) motion.

We dismiss the

appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
When the United States or a federal officer or agency is a
party, the notice of appeal must be filed no more than 60 days
after the entry of the district court’s final judgment or order,
Fed. R. App. P. 4(a)(1)(B), unless the district court extends
the appeal period under Fed. R. App. P. 4(a)(5), or reopens the
appeal period under Fed. R. App. P. 4(a)(6).

“[T]he timely

filing of a notice of appeal in a civil case is a jurisdictional
requirement.”

Bowles v. Russell, 551 U.S. 205, 214 (2007).

The district court’s order was entered on the docket on
January 30, 2015.

Pettaway filed a motion for an extension of

time to file an appeal and a notice of appeal 189 days later on
August 7, 2015.
Although the district court granted Pettaway an extension
of

time

to

note

an

appeal,

we

find

that

the

court

lacked

authority to do so; nor was it authorized to reopen the appeal
period.

The plain language of Rule 4(a)(5) requires that a

motion for an extension of time be filed, at the latest, 30 days
after the expiration of the 60-day appeal period.
2

Fed. R. App.

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P. 4(a)(5)(C) (“No extension under this Rule 4(a)(5) may exceed
30 days after the prescribed time or 14 days after the date when
the order granting the motion is entered, whichever is later.”).
Additionally, Rule 4(a)(6) requires that a motion to reopen the
appeal period be filed “within 180 days after the judgment or
order

is

entered

or

within

14

days

after

the

moving

receives notice of the entry, whichever is earlier.”
App. P. 4(a)(6)(B) (emphasis added).

party

Fed. R.

As mentioned, Pettaway’s

motion for an extension of time to appeal was filed 189 days
after the entry of the district court’s order; accordingly, the
district court lacked authority to reopen the appeal period.
See Hensley v. Chesapeake & Ohio Ry., 651 F.2d 226, 228 (4th
Cir. 1981) (noting expiration of time limits in Rule 4 deprives
the court of jurisdiction).
For the reason stated above, we deny leave to proceed in
forma pauperis and dismiss the appeal as untimely filed.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3