Loza v. D.C. Office of Human Rights ( 2022 )

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District of Columbia
Court of Appeals
No. 22-CV-712
CHRISTOPHER PHILIP LOZA,
Appellant,
v. 2021 CAP 4839
DISTRICT OF COLUMBIA
OFFICE OF HUMAN RIGHTS, et al.,
Appellees.
BEFORE: Glickman and Deahl, Associate Judges, and Washington, Senior Judge.
PUBLISHED ORDER
(FILED—November 23, 2022)
Appellee, the Berkeley Research Group, has filed a motion to dismiss this
appeal as untimely filed under D.C. App. R. 4(a). That rule generally requires an
aggrieved party to file their notice of appeal “within 30 days after entry of the
judgment” complained of, id., and in this case, appellant Christopher Loza did not
note his appeal from an August 15, 2022, order until September 15, 2022, which was
31 days after entry of the judgment. The Berkeley Research Group therefore argues
that the appeal was noted one day late and should be dismissed because, as we have
held, Rule 4 is a “mandatory claim-processing rule” which “must be enforced” when
“properly invoked.” Deloatch v. Sessoms-Deloatch, 229 A.3d 486, 491 (D.C. 2020)
(quoting Hamer v. Neighborhood Hous. Servs. of Chi., 138 S.Ct. 13, 17 (2017)).
Because Berkeley Research Group is mistaken to assert that this appeal was
untimely, we deny its motion to dismiss. We further publish this order to provide
guidance on D.C. App. Rule 4(a)(6), which extended Loza’s right to file his notice
of appeal by five days, and he therefore had 35 days to file his notice of appeal, and
he did so within that applicable timeframe.
No. 22-CV-712
Rule 4(a)(6) states that “[w]hen a judgment or final order is signed or decided
outside the presence of the parties and counsel, such judgment or order will not be
considered as having been entered, for the purpose of calculating the time for filing
a notice of appeal, until the fifth day after the Clerk of the Superior Court has made
an entry on the docket reflecting service of notice by that Clerk.” D.C. App. R.
4(a)(6) (emphasis added). Here, the August 15, 2022, order appealed was a written
order that indicated it was “Signed in Chambers” and outside the presence of parties
and counsel. There was no contemporaneous hearing that day and no oral
pronouncement of the order in the presence of the parties or counsel. In short, Rule
4(a)(6) applies by its plain terms so that the 30 days to file a notice of appeal did not
begin to run until the fifth day after August 15—that is, no earlier than August 20,
2022—and Loza’s September 15 notice of appeal was therefore within the 30 days
allotted and timely. Cf. In re Harrington, 283 A.3d 714, 718 n.7 (D.C. 2022) (taking
no position on whether the five days in the current version of Rule 4(a)(6) are
business or calendar days because the appeal would be timely either way).
It could certainly be argued, as a policy matter, that Rule 4(a)(6) should not
apply to orders that are electronically served on the parties on the day they are issued,
as this one appears to have been. The purpose of the rule seems to be to provide
several days for a party to receive notice of an adverse order announced outside their
presence before the 30-day deadline begins to run, though that rationale may be
outdated in an era of e-service and near-simultaneous notice of orders. But
regardless of whether one might second-guess the wisdom of the rule’s application
here, that policy consideration has no bearing because the terms of Rule 4(a)(6) are
clear, and the rule applies to all orders signed or decided outside the presence of
parties or counsel, however they are ultimately served, including when service is
electronic and immediate. It is therefore
ORDERED that the motion to dismiss is denied. It is
FURTHER ORDERED that appellant’s brief and the appendix including the
documents required by D.C. App. R. 30(a)(1), shall be filed within 40 days of the
date of this order, and appellees’ briefs shall be filed within 30 days thereafter. See
D.C. App. R. 31.
PER CURIAM