United States District Court, D. Colorado
KARL J. PUTNAM, Plaintiff,
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.
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).
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.
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.)
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.)
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.)
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.)
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.)
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.
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).
JURISDICTION OF THE COURTS UPON THE FILING OF ...