Donovan v. Potter , 356 F. App'x 634 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-1275
    EDWARD G. DONOVAN,
    Plaintiff – Appellant,
    v.
    JOHN E. POTTER, Postmaster General,
    Defendant – Appellee.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   Terrence W. Boyle,
    District Judge. (5:07-cv-00001-BO)
    Submitted:    November 5, 2009              Decided:   December 3, 2009
    Before NIEMEYER, KING, and GREGORY, Circuit Judges.
    Affirmed in part; dismissed in part by unpublished per curiam
    opinion.
    Philip Wayne Barton, BARTON & ASSOCIATES, Fayetteville, North
    Carolina, for Appellant.      Neal Fowler, Steve R. Matheny,
    Assistant United States Attorneys, Raleigh, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Edward G. Donovan seeks to appeal the district court’s
    order   granting    John     E.    Potter       summary    judgment     on    Donovan’s
    claims brought pursuant to Title VII of the Civil Rights Act of
    1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006), and the
    Rehabilitation Act of 1973, as amended, 
    29 U.S.C. §§ 701
     to 797
    (2006), and a subsequent order denying his motion for extension
    of time to file an appeal.               We affirm in part and dismiss in
    part.
    When the United States or its officer or agency is a
    party to an action, a notice of appeal must be filed no more
    than sixty 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.”                     See Bowles v. Russell,
    
    551 U.S. 205
    , 214 (2007).
    The     district       court’s       order    granting   Potter      summary
    judgment   was     entered    on     the    docket        on   December      10,   2008.
    Donovan’s notice of appeal was filed on March 11, 2009, well
    beyond the sixty-day appeal period.                      Although Donovan timely
    moved for an extension of time to file an appeal, the district
    court   denied     the     motion,       finding        that   Donovan       failed   to
    2
    establish good cause or excusable neglect as required by Rule
    4(a)(5).     Upon review, we conclude that the district court did
    not abuse its discretion in denying Donovan’s motion.                           Moreover,
    Donovan is not entitled to a reopening of the appellate time
    period.      See   Fed.   R.    App.       P.       4(a)(6).      We    thus   affirm   the
    district court’s order denying Donovan’s motion for extension of
    time   to   file   an   appeal,       see       Diamond      v.   United   States     Dist.
    Court, 
    661 F.2d 1198
    , 1198 (9th Cir. 1981) (recognizing that the
    denial of a motion for extension of time to file an appeal
    period is an appealable order), and dismiss the remainder of
    Donovan’s appeal for lack of jurisdiction.                             We dispense with
    oral   argument    because          the    facts       and     legal    contentions     are
    adequately    presented        in    the    materials          before    the   court    and
    argument would not aid the decisional process.
    AFFIRMED IN PART;
    DISMISSED IN PART
    3
    

Document Info

Docket Number: 09-1275

Citation Numbers: 356 F. App'x 634

Judges: Gregory, King, Niemeyer, Per Curiam

Filed Date: 12/3/2009

Precedential Status: Non-Precedential

Modified Date: 8/7/2023