Sonya Pettaway v. Department of Education , 627 F. App'x 259 ( 2016 )

UNPUBLISHED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 Decided: January 5, 2016
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Sonya D. Pettaway, Appellant Pro Se. Robert P. McIntosh,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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. Fed. R. App.
2
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 party
receives notice of the entry, whichever is earlier.” Fed. R.
App. P. 4(a)(6)(B) (emphasis added). 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. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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