Roberts v. Social Security Administration, Commissioner

Filing 29

MEMORANDUM OF OPINION AND ORDER re 25 MOTION for Extension of Time for Appeal filed by Donna Roberts and 26 memorandum brief in support thereof and the 26 Commissioner's response in opposition to the motion. For the reasons stated herein, Plaintiff's motion to extend the appeal deadline pursuant to Rule 4(a)(5) 25 is hereby DENIED. Signed by Judge L Scott Coogler on 12/12/14. (CTS, )

FILED
2014 Dec-12 PM 04:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DONNA ROBERTS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.

]
]
]
]
] 4:13-CV-0359-LSC
]
]
]
]
]
]

MEMORANDUM OF OPINION AND ORDER
I.

Introduction
Before the Court is Plaintiff’s “Motion to Extend Time for Appeal” due to

excusable neglect pursuant to Federal Rule of Appellate Procedure 4(a)(5) (doc. 25)
and memorandum brief in support thereof (doc. 26.) The Commissioner has
responded in opposition to the motion. (Doc. 28.) For the reasons set forth herein,
the motion is DENIED.
II.

Background
This Court issued its Memorandum of Opinion and Order affirming the

Commissioner’s decision on March 24, 2014. (Docs. 16 & 17.) Plaintiff filed a timely
motion under Fed. R. Civ. P. 59(e) (doc. 18), which tolled the time limit for filing an

appeal. See Fed. R. App. P. 4(a)(4)(A)(iv). The Court denied Plaintiff’s Rule 59(e)
motion on August 8, 2014. (Doc. 21.) Plaintiff was required to file her notice of
appeal within 60 days of the entry of the district court’s ruling. See 28 U.S.C. §
2107(b); Fed R. App. P. 4(a)(1)(B) (providing for a 60-day filing period when one of
the parties is a United States agency). Accordingly, Plaintiff was required to file her
notice of appeal by October 7, 2014. See Fed. R. Civ. P. 6; Fed. R. App. P. 4(a)(1);
Fed. R. App. P. 26. Plaintiff filed her notice of appeal on October 8, 2014. (Doc. 22.)
Thus, Plaintiff’s notice of appeal was untimely.
III.

Discussion
Plaintiff now seeks an extension of time to file a notice of appeal pursuant to

Fed. R. App. P. 4(a)(5), which provides that the district court may extend the time to
file a notice of appeal when two conditions are met: 1) the party moves no later than
30 days after the applicable original appeal deadline expires; and 2) the party shows
excusable neglect or good cause. Therefore, any motion filed pursuant to Rule 4(a)(5)
had to be filed on or before November 6, 2014, which was 30 days after the original
appeal deadline expired. Plaintiff did not file her motion until December 2, 2014; thus
her motion is untimely.
A party is ineligible for relief under Rule 4(a)(5) when she files a request for an

Page 2 of 4

extension more than 30 days after the expiration of the deadline for filing a notice of
appeal. See Jackson v. Crosby, 375 F.3d 1291, 1297 & n.11 (11th Cir. 2004) (“Dow
Chemical filed its notice of appeal ninety-six days after the entry of final judgment,
long after the thirty-day appeal period Rule 4(a) of the Federal Rules of Appellate
Procedure provides. The notice of appeal was so late that any extension Federal Rule
of Appellate Procedure 4(a)(5) may have provided was unavailable.”); Lopez v.
Ammons, 336 F. App’x 873, 874-75 (11th Cir. 2009) (“[T]o be eligible for an extension
under Rule 4(a)(5), the party seeking to take advantage of the rule must file the
pertinent motion no later than thirty days after the original appeal period expired.”)
(citing Fed. R. App. P. 5(a)(5)(A)(I)); see also Advisory Committee Notes, Fed. R. App.
P. 4(a)(5) (“Rule 4(a)(5)(A) permits the district court to extend the time to file a
notice of appeal if two conditions are met. First, the party seeking the extension must
file its motion no later than 30 days after the expiration of the time originally
prescribed by Rule 4(a). Second, the party seeking the extension must show either
excusable neglect or good cause.”); Brooks v. Britton, 669 F.2d 665, 667 (11th Cir.
1982) (explaining that Rule 4(a)’s amendment in 1979 to require an actual motion for
an extension of time to file a late appeal was to remove the possibility of an “informal
application for extension of time” to appeal).

Page 3 of 4

Accordingly, the motion for an extension of time to appeal is due to be denied
because the motion was not filed within the time period set forth in Rule 4(a)(5). As
Plaintiff’s motion is untimely, her excusable neglect argument is moot.
IV.

Conclusion
For the reasons stated herein, Plaintiff’s motion to extend the appeal deadline

pursuant to Rule 4(a)(5) (doc. 25) is hereby DENIED.
Done this 12th day of December 2014.

L. Scott Coogler
United States District Judge
[160704]

Page 4 of 4