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Putnam v. Berryhill

United States District Court, D. Colorado

October 29, 2018

KARL J. PUTNAM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER VACATING THIS COURT'S OCTOBER 15, 2018 ORDER AND GRANTING PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO FILE NOTICE OF APPEAL

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on review of Plaintiff Karl J. Putnam's Second Motion for an Extension of Time to File a Notice of Appeal. (Doc. # 36.) The Court also sua sponte addresses its October 15, 2018 Order Denying Plaintiff's First Motion for an Extension of Time to File a Notice of Appeal. (Doc. # 34.) For the following reasons, the Court vacates its October 15, 2018 Order (Doc. # 34), grants Plaintiff's First Motion for an Extension of Time to File a Notice of Appeal (Doc. # 33), and denies as moot Plaintiff's Second Motion for an Extension of Time to File a Notice of Appeal (Doc. # 36).

         I. PROCEDURAL HISTORY

         On July 16, 2018, this Court affirmed the Social Security Commissioner's decision denying Plaintiff's application for disability insurance benefits. (Doc. # 25.) On the same day, the Clerk of the Court entered Final Judgment in favor of Defendant, the Acting Commissioner of Social Security, and against Plaintiff. (Doc. # 26.) The merits of Plaintiff's action against Defendant are immaterial to the matter currently before the Court.

         On September 16, 2018, 62 days after this Court issued its Order and Final Judgment, Plaintiff filed a Notice of Appeal, indicating that he was appealing to the Court of Appeals for the Tenth Circuit this Court's Order affirming the denial of benefits. (Doc. # 27.) Plaintiff's appeal to the Tenth Circuit is encaptioned Case Number 18-1379, Putnam v. Commissioner, SSA. (Doc. # 29.)

         On October 2, 2018, the Clerk for the Tenth Circuit issued an Order that pursuant to Federal Rule of Appellate Procedure 4(a)(1)(B) and 28 U.S.C. § 2107(a), Plaintiff's Notice of Appeal was not timely filed. (Doc. # 32.) The Clerk explained that Rule 4(a)(1)(B) and Section 2107(a) require that in a civil case against a United States officer or employee in her official capacity, like this case, a notice of appeal must be filed within 60 days after the entry of a final judgment, order, or decree. (Id. at 1.) Because this Court's Order and Final Judgment were entered on July 16, 2018, the Clerk stated that the last day to file a notice of appeal was September 14, 2018. (Id. at 2.) The Clerk continued:

The notice of appeal was not filed on the district court docket until September 16, 2018, two days after the deadline to file expired (and on a Sunday, which would push the actual filing date to September 17, 2018, the first business day following). No. motion for extension of time to appeal has been filed in or granted by the district court. 28 U.S.C. § 2107(c) (district court may extend time to appeal under certain circumstances); Fed. R. App. P. 4(a)(5) (same). Thus, the notice of appeal was filed out of time, and this court [the Tenth Circuit] appears to be without jurisdiction to consider the appeal.

(Id. at 2.) The Clerk ordered Plaintiff (there, the appellant) to “file a memorandum brief addressing whether he can establish timely filing of the notice of appeal” within 14 days of her Order (on or before October 16, 2018). (Id.)

         On October 13, 2018, Plaintiff filed with this Court his First Motion for an Extension of Time to File a Notice of Appeal. (Doc. # 33.) Pursuant to Rule 4(a)(5)(A), Plaintiff asserted “excusable neglect and/or good cause for filing out of time.” (Id. at 1.) He claimed “several mitigating factors, ” such as his counsel being “a novice in filing appeals” and “a solo practitioner with no supporting staff” and her having “miscalculated the date, ” as contributing to missing the filing date. (Id. at 1-2.) Plaintiff argued that these factors amounted to inadvertent, negligent omissions that did not prejudice Defendant. (Id. at 2.) He therefore requested that the Court “grant [his] Motion to Extend the Time to File Notice of Appeal.” (Id. at 3.)

         On October 15, 2018, this Court denied Plaintiff's First Motion for an Extension of Time to File a Notice of Appeal in a brief text order for lack of jurisdiction. (Doc. # 34.)

         The following day, October 16, 2018, the Clerk for the Tenth Circuit entered an order regarding Plaintiff's response to the Tenth Circuit's October 2, 2018 Order to Show Cause. (Doc. # 35.) The Clerk stated that the Tenth Circuit “has no authority to excuse [Plaintiff's] late filing, regardless of the reasons.” (Id. at 1-2.) Plaintiff's “only option, ” according to the Clerk, “is to seek relief from the untimely filing of notice of appeal in the district court.” (Id. at 2) (citing 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)). The Clerk directed Plaintiff to file with the Tenth Circuit “a status report advising what steps he has taken to gain relief from the untimely appeal in the district court” by October 31, 2018. (Id.)

         Also on October 16, 2018, Plaintiff filed with this Court his Second Motion for an Extension of Time to File a Notice of Appeal (Doc. # 36), which is now before the Court.

         II. APPLICABLE LAW

         Federal Rule of Appellate Procedure 3 provides that “[a]n appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4.” Fed. R. App. P. 3(a)(1). Pursuant to Federal Rule of Appellate Procedure 4, a party in a civil action in which one of the parties is a federal officer or employee sued in an official capacity may file a notice of appeal “within 60 days after entry of judgment or order appealed.” Fed. R. App. P. 4(a)(1)(B); see also 28 U.S.C. § 2107(b).

         A. JURISDICTION OF THE COURTS UPON THE FILING OF ...


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