Hager v. Underwood

Filing 25

MEMORANDUM OPINION AND ORDER GRANTING CONSTRUED MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL. The Court GRANTS Petitioner Marion David Hager's construed motion under Federal Rule of Appellate Procedure 4(a)(5) to extend the time to file a notice of appeal and RETURNS this case to the United States Court of Appeals for the Fifth Circuit. (Ordered by Magistrate Judge David L. Horan on 9/5/2019) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARION DAVID HAGER
(BOP Register No. 54182-380),
Petitioner,
V.
UNDERWOOD, Warden,
Respondent.

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No. 3:18-cv-355-D
(Fifth Circuit No. 18-10913)

MEMORANDUM OPINION AND ORDER GRANTING CONSTRUED
MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL
Petitioner Marion David Hager, a federal prisoner convicted in the Western
District of Texas but incarcerated at a BOP facility in this district, filed a pro se 28
U.S.C. § 2241 habeas petition challenging the relevant conduct used to determine his
sentence under 28 U.S.C. § 2255(e), the “savings clause” of Section 2255. See Dkt. Nos.
3, 4, & 5. The Court summarily dismissed his petition for lack of subject matter
jurisdiction, see Dkt. Nos. 6, 11, & 12, and denied Hager’s request for reconsideration,
see Dkt. Nos. 14 & 15. Hager then appealed. See Dkt. No. 16.
On July 15, 2019, the United States Court of Appeals for the Fifth Circuit
remanded this action to allow the district court to rule on Hager’s construed motion
under Federal Rule of Appellate Procedure 4(a)(5)(A) to extend the time to file a notice
of appeal. See Dkt. No. 21. And Senior United States District Judge Sidney A.
Fitzwater referred the motion to the undersigned United States magistrate judge
under 28 U.S.C. § 636(b) for, as may be appropriate, disposition or findings and

recommendation. See Dkt. No. 22.
Legal Standards and Analysis
The Fifth Circuit’s remand order sets up the issue now before the Court:
The district court entered its final judgment on May 1, 2018. Any notice
of appeal had to be filed within 60 days. See 28 U.S.C. § 2107(b); FED. R.
APP. P. 4(a)(1)(B). Hager’s “petition to reconsider” did not extend this time
because it was filed more than 28 days after the district court issued its
judgment. See FED. R. APP. P. 4(a)(4)(A); FED. R. CIV. P. 59(d)-(e). Because
the 60-day “appeal filing deadline [is] prescribed by statute,” it affects
[appellate] jurisdiction. Hamer v. Neighborhood Hous. Servs. of Chi., 138
S. Ct. 13, 16 (2017) (citing Bowles v. Russell, 551 U.S. 205, 210-13 (2007)).
Hager’s notice of appeal was dated July 9, 2018, and filed July 13,
2018. It was therefore untimely. But “[w]e construe [Hager’s] notice of
appeal, which asserted reasons for his untimely filing, as a motion under
Federal Rule of Appellate Procedure 4(a)(5)(A)” to extend the time to file
a notice of appeal. Kramer v. Castaneda, 599 F. App’x 174, 174 (5th Cir.
2015).
Dkt. No. 21 at 2 (footnote omitted).
“The 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)
... that party shows excusable neglect or good cause.” FED. R. APP. P. 4(a)(5)(A).
“The good cause and excusable neglect standards have ‘different domains.’ They
are not interchangeable, and one is not inclusive of the other.” FED. R. APP. P. 4
advisory committee’s note, 2002 Amendments, Subdivision (a)(5)(A)(ii) (quoting
Lorenzen v. Employees Ret. Plan, 896 F.2d 228, 232 (7th Cir. 1990)). “A more
structured and exacting analysis is appropriate where a party seeks protection from
his own negligence; where a litigant is the victim of unforeseeable circumstances,
however, justice permits greater discretion.” Price v. General Cable Indus., Inc., 466
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F. Supp. 2d 610, 613 (W.D. Penn. 2006). And the Rule’s subsequent addition of a goodcause option “‘expand[ed] to some extent the standard for the grant of an extension of
time,’ showing that excusable neglect should not be equated with ‘good cause,’ much
less with the broader concept of ‘cause.’” In re Heartland Steel, Inc., No. 1:03-CV-802DFH, 2003 WL 23100035, at *3 n.1 (S.D. Ind. Dec. 16, 2003) (citation omitted).
“The good cause standard” “is applicable ‘in situations in which there is no fault
– excusable or otherwise.’ In those situations, an extension of time is necessary because
of something that was entirely beyond the control of the moving party, such as where
‘the Postal Service fails to deliver a notice of appeal.’” Tuesno v. Jackson, No. 5:08-cv302(DCB)(JMR), 2013 WL 685928, at *4 (S.D. Miss. Feb. 25, 2013) (quoting FED. R.
APP. P. 4 advisory committee’s note, 2002 Amendments, Subdivision (a)(5)(A)(ii)).
And a court’s determination as to excusable neglect
is at bottom an equitable one, taking account all of the relevant
circumstances surrounding the party’s omission. These include ... the
danger of prejudice ..., the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant
acted in good faith.
Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 820 (5th Cir. 2007) (quoting
Midwest Employers Cas. Co. v. Williams, 161 F.3d 877, 879 (5th Cir. 1998) (quoting,
in turn, Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993)); internal quotation marks omitted).
Regardless which standard applies, the rules now “require only a ‘finding’ of
excusable neglect or good cause and not a ‘showing’ of them.” Krepps v. Gov’t of the V.I.,
-3-

No. CRIM.A.1999/0047, 2009 WL 1117297, at *2 n.5 (D.V.I. Apr. 22, 2009) (quoting and
citing FED. R. APP. P. 4 advisory committee’s note, 1998 Amendments, Subdivision (b)).
Hager cites his “non-delivered Legal Mail” as a basis for showing good cause or
excusable neglect. Dkt. No. 16 at 2; see also id. at 1 (stating that a district court order
“was returned as ‘undeliverable’”). The Court’s docket also reflects that numerous
orders sent to Hager were returned to the Court as undeliverable. See Dkt. Nos. 9, 13,
24. Considering that, here, there is no evidence of bad faith; the delay was minimal;
and prejudice to Hager would be substantial (the dismissal of his appeal), the
documented difficulties with notifying Hager of the Court’s decisions through the mail
amount to a showing of excusable neglect that is sufficient to grant his construed
motion to extend the time to file a notice of appeal. Cf. Stotter, 508 F.3d at 820 (noting
that “more leeway” is given “to a district court’s determination of excusable neglect
when the district court grants the motion for an extension of time” (citation omitted)).
Conclusion
The Court GRANTS Petitioner Marion David Hager’s construed motion under
Federal Rule of Appellate Procedure 4(a)(5) to extend the time to file a notice of appeal
and RETURNS this case to the United States Court of Appeals for the Fifth Circuit.
SO ORDERED.
DATED: September 5, 2019
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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