United States Ex Rel. Green v. Service Contract Education & Training Trust Fund , 863 F. Supp. 2d 18 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
UNITED STATES OF AMERICA, )
ex rel. GORDON GREEN, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-738 (RWR)
)
SERVICE CONTRACT EDUCATION )
AND TRAINING TRUST FUND, et al., )
)
Defendants. )
________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Gordon Green has filed a motion nunc pro tunc for
extension of time to file notice of appeal of the February 13,
2012 Order that dismissed his complaint against the Service
Contract Education and Training Trust Fund (“SCETTF”), the
Laborers’ International Union of North America (“LIUNA”), and
five government contractors.1 Green brought his action as a
relator under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33,
alleging that the defendants engaged in a scheme to defraud the
United States. The United States declined to intervene in the
action. Green filed a notice of appeal of the dismissal on
April 11, 2012, 58 days after entry of the final order. On
May 1, 2012, 78 days after the final order, and following an
order by the Court of Appeals for the District of Columbia
1
Green seeks to appeal the final order with regard to only
SCETTF and LIUNA. (Pl.’s Notice of Appeal at 1 & n.1.)
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Circuit directing Green to show cause why his appeal should not
dismissed as untimely, Green filed the present motion to extend
time to appeal.
The deadline to file a notice of appeal is “mandatory and
jurisdictional.” Browder v. Dir., Dep’t of Corr. of Illinois,
434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361
U.S. 220, 229 (1960)); see also Bowles v. Russell, 551 U.S. 205,
214 (2007) (emphasizing that “the timely filing of a notice of
appeal in a civil case is a jurisdictional requirement”). Under
Federal Rule of Appellate Procedure 4 and 28 U.S.C. § 2107, a
party in a civil case must file a notice of appeal within 30 days
of entry of an appealable order. Fed. R. App. P. 4(a)(1)(A); 28
U.S.C. § 2107(a). If, however, the United States or an officer
or agency of the United States is a party to the action, the time
to file notice of appeal is 60 days. Fed. R. App. P. 4(a)(1)(B);
28 U.S.C. § 2107(b). In United States ex rel. Eisenstein v. City
of New York, 556 U.S. 928, 937 (2009), the Supreme Court held
that where, as here, “the United States has declined to intervene
in a privately initiated FCA action, it is not a ‘party’ to the
litigation for purposes of either § 2107 or Federal Rule of
Appellate Procedure 4.” Accordingly, the 30-day time limit
governs the filing of a notice of appeal in a privately initiated
FCA action, id., and Green’s notice, filed 58 days after entry of
the final order, is untimely.
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In his motion for extension, Green’s counsel concedes that
the notice of appeal was untimely, but states that he was
“unaware of the holding in Eisenstein when deciding when to file
Mr. Green’s notice of appeal” and that the Memorandum Opinion
setting forth the reasons for dismissing the case was “detailed
and complex, requiring careful analysis to determine the
appropriateness of an appeal.” (Pl.’s Mot. Nunc Pro Tunc for
Extension of Time to File Notice of Appeal (“Pl.’s Mot.”) at 3.)
Green’s counsel contends that these factors warrant a finding of
“excusable neglect” entitling Green to an extension. (Id. at 2-
3.) Defendants SCETTF and LIUNA oppose Green’s motion.
Fed. R. App. P. 4(a)(5)(A) provides:
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) regardless of whether its motion is filed
before or during the 30 days after the time
prescribed by this Rule 4(a) expires, that party
shows excusable neglect or good cause.
Fed. R. App. P. 4(a)(5)(A) (emphasis added). As the text of the
rule makes clear, regardless of a showing of good cause or
excusable neglect, a district court is empowered to grant an
extension only when a party files a motion seeking such relief no
later than 30 days after the time for appeal expires. Green’s
deadline to appeal was March 14, 2012 and, accordingly, his
deadline to move for an extension of time to appeal was April 13,
2012. Because Green did not move for an extension until May 1,
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his motion is untimely and no rule or statute empowers a district
court to provide him relief. See Bowles, 551 U.S. at 214-15(finding “no authority to create equitable exceptions to
jurisdictional requirements” and accordingly affirming the
dismissal of an appeal brought after a district court purported
to extend a party’s time for filing the appeal beyond the period
allowed by Rule 4 and 28 U.S.C. § 2107).
Green contends in his reply that a district court possesses
the authority to grant his untimely motion under the D.C.
Circuit’s decision in Anderson v. District of Columbia, 72 F.3d
166 (D.C. Cir. 1995) (per curiam), which held that a timely
notice of appeal was valid, even though the notice mistakenly
stated that appeal was being taken to the United States Supreme
Court rather than the United States Court of Appeals. The
Anderson decision noted that the district court had denied the
plaintiff’s motion under Rule 4 to correct his error on the
grounds that a motion for extension of time to file notice of
appeal must be filed no later than 30 days after the time for
noting an appeal has passed.2 Id. at 167. However, in holding
that the notice of appeal was valid, the Anderson court did not
endorse the view, advanced by Green, that a district court could
grant a motion for extension outside the statutory period
2
The plaintiff had filed his Rule 4 motion 137 days after
expiration of the appeal deadline. Anderson, 72 F.3d at 167.
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prescribed by Rule 4. Rather, the court’s decision rested on its
interpretation of a separate provision, Rule 3(c), which requires
that a notice of appeal designate the name of the court to which
appeal is taken, and with which the court found the plaintiff’s
notice sufficiently complied “because it was obvious in which
court his appeal properly lay.” Id. at 168. Anderson therefore
does not provide authority for the proposition that a district
court may consider a motion for extension of time to appeal filed
outside the statutorily prescribed period. Neither do the other
cases that Green cites without elaboration favor his position.
See, e.g., Farmhand, Inc. v. Anel Eng’g Indus., Inc., 693 F.2d
1140, 1145-46 (5th Cir. 1982) (noting that, following notice of
appeal, district courts maintain jurisdiction as to unrelated
matters and may take action in aid of the appeal such as making
clerical corrections); Athridge v. Iglesias, 464 F. Supp. 2d 19,
22-23 (D.D.C. 2006) (same).
Green emphasizes that his notice of appeal was filed within
60 days of entry of the final order, seeming to suggest that his
untimely motion for extension somehow relates back to the notice
of appeal or that the filing of the notice itself functioned as a
request for an extension. (See Pl.’s Reply at 2 (“Mr. Green’s
notice was filed within the sixty-day time period, and the motion
to allow the already-filed notice to be effective may be
considered.”) (emphasis in original).) Eleven circuits have
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considered whether a notice of appeal can be treated as a motion
for extension of time to appeal under Rule 4(a)(5) and all have
answered in the negative. Wyzik v. Emp. Benefit Plan of Crane
Co., 663 F.2d 348, 348 (1st Cir. 1981) (per curiam)3; Campos v.
LeFevre, 825 F.2d 671, 675-76 (2d Cir. 1987); Herman v. Guardian
Life Ins. Co. of Am., 762 F.2d 288, 289-90 (3rd Cir. 1985) (per
curiam); Myers v. Stephenson, 748 F.2d 202, 204 (4th Cir. 1984);
Bond v. W. Auto Supply Co., 654 F.2d 302, 303-04 (5th Cir. 1981);
Pryor v. Marshall, 711 F.2d 63, 64-65 (6th Cir. 1983); United
States ex rel. Leonard v. O’Leary, 788 F.2d 1238, 1239-40 (7th
Cir. 1986) (per curiam); Campbell v. White, 721 F.2d 644, 645-46
(8th Cir. 1983); United States ex rel. Haight v. Catholic
Healthcare W., 602 F.3d 949, 956 (9th Cir. 2010); Mayfield v.
U.S. Parole Comm’n, 647 F.2d 1053, 1055 (10th Cir. 1981) (per
curiam); Brooks v. Britton, 669 F.2d 665, 667 (11th Cir. 1982).
The D.C. Circuit has not passed on the issue. Nonetheless, the
Supreme Court’s exhortation in Bowles, 551 U.S. at 214-15, that
federal courts not fashion equitable exceptions to the
3
The First Circuit reserved the question “[w]hether or not
in truly extraordinary circumstances beyond the ability of
counsel to foresee or guard against, a court would have any
flexibility in applying this rule.” Wyzik, 663 F.2d at 348.
That Green’s counsel was unaware of Eisenstein, a Supreme Court
case decided three years ago, does not constitute “truly
extraordinary circumstances,” despite counsel’s contention that
the case is in apparent contradiction with prior holdings and
that therefore it was “not obvious” that the 60-day deadline for
appeal of actions in which the United States is a party did not
govern this case (Pl.’s Reply at 3; see also Pl.’s Mot. at 2-3).
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jurisdictional requirement of a timely appeal counsels strongly
in favor of following the considered, uniform guidance of sister
circuits. The same result, moreover, is compelled by the Supreme
Court’s unanimous decision in Eisenstein. There, the Court chose
to affirm the dismissal of a relator’s appeal rather than to
remand for the district court to consider whether to construe as
a motion for extension the untimely notice of appeal that the
relator filed, as Green did here, in reliance on the 60-day
deadline, or to provide some other relief. Eisenstein, 556 U.S.
at 937. Accordingly, it is hereby
ORDERED that the plaintiff’s motion [91] nunc pro tunc for
an extension of time to file a notice of appeal be, and hereby
is, DENIED.
SIGNED this 31st day of May, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge