ALEMU et al v. DEPARTMENT OF FOR HIRE VEHICLES et al
Filing
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MEMORANDUM OPINION declining to Construe Plaintiff's Late Notice of Appeal and Response to Order to Show Cause as a Motion for and Extension of Time. See document for details. Signed by Judge Rudolph Contreras on July 1, 2019. (lcrc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MISGANAW ALEMU, et al.,
Plaintiff,
v.
DEPARTMENT OF FOR HIRE VEHICLES,
FORMERLY KNOWN AS DC TAXICAB
COMMISSION, et al.,
Defendants.
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Civil Action No.:
17-1904 (RC)
Re Document No.:
25
MEMORANDUM OPINION
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 thirtyday 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
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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,
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Although the D.C. Circuit has not considered whether an untimely notice of appeal can
be treated as an implicit Motion for Extension under Rule 4(a)(5)(A), all eleven other circuits to
have considered the issue have rejected such a notion. United States ex rel. Green v. Serv.
Contract Educ. & Training Tr. Fund, 863 F. Supp.2d 18, 20–21 (D.D.C. 2012) (collecting
cases). So have judges in this district. Hickey v. Scott, 987 F. Supp. 2d 85, 89 (D.D.C. 2013);
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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 made no Motion for Extension. Therefore, this Court will
not construe Mr. Birbo’s late appeal and OSC response as a Motion for Extension.
2. Timeliness Requirement
Moreover, this Court declines to construe Mr. Birbo’s late appeal and OSC response as a
Motion for Extension because his OSC response was filed too late. A party may move for an
extension of time to file an appeal if the party does so no later than thirty days after the
expiration of the thirty-day appeal deadline prescribed in Rule 4(a)(1)(A). Fed. R. App. P.
4(a)(5)(A); see also United States ex rel. Green, 863 F. Supp. 2d at 20.
Additionally, the Supreme Court has held that court deadlines prescribed by Congress are
jurisdictional and that courts may not provide equitable exceptions to jurisdictional deadlines.
Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21–22 (2017). The relevant
deadline in this case, Rule 4(a)(5)(A), is prescribed by Congress. See 28 U.S.C. § 2107(c). After
Hamer, several Circuits have held the Rule 4(a)(5)(A) deadline is jurisdictional. 2 United States
v. Kalb, 891 F.3d 455, 460 (3d Cir. 2018); Evans v. Greentree Servicing, LLC, No. 17-6479,
United States ex rel. Green, 863 F. Supp. 2d at 20–21. There is, however, no authority on
whether a court can construe a late notice of appeal and an OSC response together as a Motion
for Extension.
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The D.C. Circuit and Supreme Court have not considered the jurisdictional nature of
Rule 4(a)(5)(A) specifically but have each held that deadlines in other subsections of Rule 4(a)
are jurisdictional because they were imposed by Congress. See Bowles v. Russell, 551 U.S. 205,
213 (2007) (holding that the Rule 4(a)(6) deadline is jurisdictional because Congress imposed it
in 28 U.S.C. § 2107(c)); see also Mobley v. C.I.A., 806 F.3d 568, 578 (D.C. Cir. 2015) (holding
that the Rule 4(a)(1)(B) deadline is jurisdictional because Congress imposed it in 28 U.S.C. §
2107(b)).
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2018 WL 1326651, at *1 (6th Cir. Feb. 8, 2018); Nestorovic v. Metro. Water Reclamation Dist.
of Greater Chi., No. 18-2562, 2019 WL 2428706, at *3 (7th Cir. June 11, 2019); Athens
Cellular, Inc. v. Oconee Cty., Ga., 886 F.3d 1094, 1114 (11th Cir. 2018).
Here, even taking as true Mr. Birbo’s implausible story regarding the errant instruction
by the clerk’s office employee, this Court is still unable to construe his late appeal and OSC
response as a Motion for Extension because Mr. Birbo did not file his OSC response within
thirty days of the appeal deadline in Rule 4(a)(1)(A). In this case, that deadline would fall on
October 20, 2018. Mr. Birbo did not file his OSC response until May 1, 2019.
Furthermore, given that Mr. Birbo filed his OSC response after the Rule 4(a)(5)(A)
deadline, construing his late appeal and OSC response as a request for additional time to file an
appeal would be tantamount to accepting a late Motion for Extension. Because the Rule
4(a)(5)(A) deadline is prescribed by Congress in 28 U.S.C. § 2107(c), accepting a late Motion
for Extension would be an equitable exception to a jurisdictional deadline prohibited by the
Supreme Court in Hamer. See 138 S. Ct. at 21–22. Accordingly, this Court will not construe his
late notice of appeal and OSC response as a Motion for Extension.
B. Even if Mr. Birbo’s late appeal and OSC response were construed as a motion, this
Court would deny that motion on the merits.
Even if Mr. Birbo’s late appeal and OSC response were construed as a timely Motion for
Extension of time pursuant to Rule 4(a)(5)(A), this Court would deny the Motion. A party
moving for an extension of time to file an appeal cannot obtain relief unless he shows “excusable
neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). Mr. Birbo has failed to meet that standard.
“The good cause standard applies in situations in which there is no fault—excusable or
otherwise.” Fed. R. App P. 4 Advisory Committee’s Note to the 2002 Amendment. Courts
generally do not find good cause in situations where the need for an extension is occasioned by
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something within the movant’s control. Id.; see also Burt v. Nat’l Republican Club of Capitol
Hill, 828 F. Supp. 2d 115, 127 (D.D.C. 2011), aff’d, 509 F. App’x 1 (D.C. Cir. 2013). “If, for
example, the Postal Service fails to deliver a notice of appeal, a movant might have good cause
to seek a post-expiration extension.” Fed. R. App. P. 4 Advisory Committee’s Note to the 2002
Amendment.
Courts generally find excusable neglect in situations where there is fault, and something
within the control of the movant occasions the need for an extension. Fed. R. App. P. 4,
Advisory Committee’s Note to 2002 Amendment. However, courts typically do not find
excusable neglect where the tardiness of appeal results from a party’s free, calculated, and
deliberate choice. Ackermann v. United States, 340 U.S. 193, 198, (1950). “[I]nadvertence,
ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’
neglect.” Webster v. Pacesetter, Inc., 270 F. Supp. 2d 9, 11 (D.D.C. 2003) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 392 (1993)). Courts have rejected
excusable neglect arguments where a plaintiff files a late motion based on errant advice from a
law clerk regarding the deadline. See id. at 10; see also Williams v. Washington Convention Ctr.
Auth., 481 F.3d 856, 859 (D.C. Cir. 2007); see also Moore v. S.C. Labor Bd., 100 F.3d 162, 164
(D.C. Cir. 1996).
Here, Mr. Birbo has not shown good cause or excusable neglect as required by Rule
4(a)(5)(A). To establish good cause, Mr. Birbo would have to show that his need for an
extension was occasioned by something out of his control, such as a post office mistake. His
response to the OSC alleges nothing of the sort. See USCA 18-7145, Order Resp., March 4,
2019. He instead appears to rely on the theory of excusable neglect based on the alleged errant
advice given by the clerk’s office employee. Id. That argument was already rejected by this
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Court in Webster. See 270 F. Supp. at 11. Further, even if Mr. Birbo was errantly led to believe
that his appeal was due September 21, it defies logic that he would leave the courthouse and not
file his notice of appeal until the next day. Because there is no downside to filing the notice of
appeal one day early, it appears his decision to leave and return the next day to file the appeal
was the result of his free, calculated and deliberate choice. Accordingly, this Court does not find
that Plaintiff has established the excusable neglect or good cause necessary for an extension of
time, even if he had moved for one.
IV. CONCLUSION
For the foregoing reasons, this Court declines to construe Mr. Birbo’s late appeal and
OSC response as a timely Motion for Extension and would deny such a motion on the merits
regardless.
Dated: July 1, 2019
RUDOLPH CONTRERAS
United States District Judge
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