Opinion
01 Civ. 3548 (DFE), 01 Civ. 11492 (DFE)
August 27, 2003
Andrew D. O'Toole, Esq., New York, N.Y.
OPINION AND ORDER
Pro se plaintiff Stephanie Bethea brought these two lawsuits, alleging that her employer, the U.S. Postal Service, subjected her to unequal terms and conditions of employment and retaliation, on the basis of her psychiatric disability. On May 8, 2003, I issued an opinion dismissing Ms. Bethea's complaints with prejudice because of her failure to prosecute, and because of her failure to comply with Court orders.
In each of these two lawsuits, the Clerk of Court prepared and signed the Judgment, dated May 15 and stamped with a notation that "This document was entered on the docket on 5-16-[0]3." On May 16, the Clerk of Court mailed, to Ms. Bethea, (a) a copy of the Judgment, (b) a cover letter explaining the deadline for filing a notice of appeal, (c) a form for a notice of appeal, and (d) a form for a motion for an extension of time to file a notice of appeal. The Clerk's cover letter stated, in part:
Your attention is directed to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, which requires that if you wish to appeal the judgment in your case, you must file a notice of appeal within '30 days of the date of entry of the judgment (60 days if the United States or an officer or agency of the United States is a party).
If you wish to appeal the judgment but for any reason you are unable to file your notice of appeal within the required time, you may make a motion for an extension of time in accordance with provision of Fed.R.App.P. 4(a)(5). That rule requires you to show "excusable neglect" or "good cause" for your failure to file your notice of appeal within the time allowed. Any such motion must first be served upon the other parties and then filed with the Pro Se Office no later than 60 days from the date of entry of the judgment (90 days if the United States or an officer or agency of the United States is a party).
The Clerk enclosed a form for a motion for an extension; the form warned Ms. Bethea (with emphasis in the original):
. . . if you follow this procedure, these forms must be received in the office of the Clerk of the District Court no later than 60 days of the date [on] which the judgment was entered (90 days if the United States or an officer or agency of the United States is a party).
The stamp on the bottom of the one-page Judgment clearly showed Ms. Bethea that the Judgment had been entered on May 16. The deadline to file a motion for extension expired 90 days later, on August 14.
On Saturday, August 16, 2003, Ms. Bethea mailed four documents to me, by certified mail. The first two, completed on the forms provided by the Clerk's office, were a "Motion for an Extension of Time to File a Notice of Appeal" and a "Notice of Appeal." Also enclosed was a Disability Certificate signed by Louis P. Re, M.D. on August 14, stating that Ms. Bethea sustained a lumbar sprain "at work on 6-24-03," and was "totally disabled," at least in the sense that she "is unable to return to work." Finally, Ms. Bethea enclosed a one-page typewritten statement dated August 15.
My Chambers received these four documents on August 19. There was no indication that she served them on the Government, even though the May 16 package from the Clerk's office included a form for affirmation of service.
For the reasons discussed below, I deny Ms. Bethea's motion.
DISCUSSION
Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure provides that:
When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.
I issued my opinion dismissing Ms. Bethea's lawsuits on May 8, 2003. In both lawsuits, the Clerk of Court issued the Judgment dated May 15 and entered it on the docket on May 16, 2003. The deadline for a notice of appeal was 60 days after May 16, namely July 15.
Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure gave her an additional 30 days to move for an extension (which might or might not be granted). This Rule has two requirements:
(A) 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.
The extra 30-day grace period ran from July 15, and hence it expired on August 14.
The deadline for filing a Notice of Appeal is "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir. 2003); Rezzonico v. H R Block, Inc., 182 F.3d 144, 150 (2d Cir. 1999). "If no notice of appeal is filed before the deadline provided by Rule 4(a)(1) (or a new deadline set pursuant to Rule 4(a)(5) or (6)), [the Court of Appeals] lacks jurisdiction to hear the appeal." Silivanch, 333 F.3d at 363. Here, Ms. Bethea mailed the notice of appeal to me on August 16 — two days after the expiration of the 30-day grace period allowed by Rule 4(a)(5)(A). Hence, she failed to meet the first requirement of that Rule. Thus, we do not even reach the second requirement (excusable neglect or good cause).
If I could reach the second requirement, I would find that Ms. Bethea has not shown excusable neglect or good cause, singly or in combination. Her typewritten explanation shows that she was working from May 16 to June 12, and also returned to work on June 24. She writes:
As [a] result of the ongoing harassment which highly contributed to the initiation of this case, I was unable to focus and concentrate on the needed material. It appears my mental state was discussed with my co-workers who constantly made innuendo and reference to my state of mind. The on-going psych jokes were a bit too much. On 6/12/03, I was finally taken out [of] work and put on medical leave. I subsequently returned to work on 6/24/03, and as [a] result of a job related injury, have been placed on medical disability until such time that a MRI can be had.
The June 24 injury was merely a lumbar sprain. It appears that she was able to travel from her home on West 117th Street to Dr. Re on West 60th Street on July 8 and on August 14. I see nothing that prevented her from reading the materials sent to her on May 16, filling out the enclosed forms, and getting them mailed.
It may be that Ms. Bethea neglected to note that May has 31 days and therefore the 60-day deadline expired on July 15, and neglected to note that July has 31 days and therefore the 90-day deadline expired on August 14. If she did make such a miscalculation, that would not constitute excusable neglect. The same mistake was made earlier this year by a pro se plaintiff in an employment discrimination case, Dix v. Saks, Inc. 2003 WL 194210 (S.D.N.Y., Jan. 19, 2003) (Eaton, M.J.). Ms. Dix received, on June 19, 2002, a right-to-sue letter from the U.S. Equal Employment Opportunity Commission, which warned her: "Your lawsuit must be filed WITHIN 90 DAYS from your receipt of this Notice." Id. at *1. She neglected to note that July and August have 31 days, and that her deadline was therefore September 17. She filed her complaint on September 19. Adopting my recommendation, Judge Kaplan dismissed her complaint because it was not timely filed and there was no basis for equitable tolling. Dix v. Saks, Inc., 2003 WL 21538443 (S.D.N.Y., July 8, 2003) (Kaplan, D.J.).
In Worthy v. General Longshoremen's Workers Int'l, 2003 WL 260520 (E.D.La., Feb. 4, 2003), the Notice of Appeal was one day late because counsel erroneously excluded legal holidays when computing the 30-day period. Judge Vance ruled that this was "a garden variety mistake," and she denied a timely motion for extension. Id. at *2. In Villa v. Village of ElMore, 252 F. Supp.2d 492 (N.D. Ohio 2003), the judgment was entered on December 3, 2002, and the Notice of Appeal was filed on January 3, 2003, one day late. Judge Carr denied a timely motion for a retroactive extension, and he wrote: "Miscalculation of the time period does not rise . . . to the standard of excusable neglect." Id. at 494.
On June 25, 2003, the Second Circuit stated:
We operate in an environment, however, in which substantial rights may be, and often are, forfeited if they are not asserted within time limits established by law. . . . But the legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced — where every missed deadline was the occasion for the embarkation on extensive trial and appellate litigation to determine the equities of enforcing the [time] bar.Silivanch v. Celebrity Cruises, Inc., 333 F.3d at 367-68.
CONCLUSION
For the reasons stated above, I deny Ms. Bethea's motion for an extension of time to file a Notice of Appeal.