                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        August 30, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ROBERT J. HARPER, JR.,

      Plaintiff - Appellant,

v.                                                        No. 15-8125
                                                 (D.C. No. 1:15-CV-00082-ABJ)
SCOTT M. GUTHRIE; MARK M.                                   (D. Wyo.)
GIFFORD, individually, and in his official
capacity as Wyoming State Bar
Association Counsel; SHANNON
HOWSHAR, individually, and in her
official capacity as Wyoming State Bar
Association Assistant; JENNIFER
CALKINS-SCOGGINS; DONNA CAY
HEINZ, individually, and in her official
capacity on Wyoming’s Commission on
Judicial Conduct and Ethics; MATTHEW
H. MEAD, individually, and in his official
capacity as Wyoming State Governor,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Robert J. Harper, Jr., a Wyoming prisoner proceeding pro se, appeals the

district court’s dismissal of his civil rights complaint and its denial of his motion for

an extension of time to file a notice of appeal. Because the notice of appeal was

untimely and no motion for an extension was granted, we lack jurisdiction to reach

the merits of the dismissal order at this time. However, we can and do address the

district court’s denial of Mr. Harper’s motion for an extension of time. We vacate

that order and remand the case for further proceedings.

I. Dismissal Order

      The district court entered its dismissal order on October 20, 2015. Under Fed.

R. App. P. 4(a)(1)(A), Mr. Harper had thirty days to file a notice of appeal. His

notice of appeal was not filed until November 25, 2015, and he concedes it was

untimely. “This court has jurisdiction only to review district court judgments from

which a timely notice of appeal has been filed.” Lebahn v. Owens, 813 F.3d 1300,

1304 (10th Cir. 2016) (citing Bowles v. Russell, 551 U.S. 205, 214 (2007)). In the

absence of a timely notice of appeal or a valid order extending the time to file notice

of appeal, we lack jurisdiction to consider this portion of his appeal.1




      1
        If, on remand, the district court determines that excusable neglect or good
cause warrants an extension of time, it may grant one, thereby validating
Mr. Harper’s previously filed notice of appeal. See N. Am. Specialty Ins. Co. v. Corr.
Med. Servs., Inc., 527 F.3d 1033, 1039 (10th Cir. 2008) (“[S]o long as the order
appealed from remains unchanged in both its form and its content, a premature notice
of appeal retains its validity [once a motion to extend the time to file a notice of
appeal is granted].” (brackets and internal quotation marks omitted)).
                                            2
II. Denial of Motion for an Extension of Time

       Under Fed. R. App. P. 4(a)(5), however, Mr. Harper had an additional thirty

days to file (in the district court) a motion for an extension of time to file a notice of

appeal. See Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004). The district

court may grant such a motion upon a showing of excusable neglect or good cause.

Id.; see also United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979) (noting that

“a district court retains limited jurisdiction beyond the running of the total appeal

period” to address a timely filed motion for an extension of time). Mr. Harper timely

filed a motion for an extension of time, citing the limited number of staff at the

prison and the unavailability of legal materials and services as factors contributing to

his inability to timely file his notice of appeal.

       The district court denied Mr. Harper’s motion as moot, noting that this Court

had already assigned a case number to his appeal: “Plaintiff . . . filed a Notice of

Appeal on November 25, 2015, which the Tenth Circuit Court of Appeals assigned

Appeal Number 15-8125 on November 27, 2015. His request is therefore moot.”

R., Vol. 2 at 343 (citations omitted). The district court made no findings as to

whether Mr. Harper’s motion demonstrated excusable neglect or good cause.

       Meanwhile, this Court tolled briefing on the merits and issued an order

directing Mr. Harper to address why, given the late notice of appeal, the appeal

should not be dismissed for lack of jurisdiction. In response, Mr. Harper filed a

revised motion for an extension of time, a memo and affidavit in support of the

motion, and a motion to proceed on appeal in forma pauperis. After the appellees

                                             3
filed an opposition to the revised motion for an extension, Mr. Harper filed a reply.2

The jurisdictional issue was then referred to this merits panel, and briefing on the

merits proceeded.

      Mr. Harper is a pro se litigant, so we view his filings liberally. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to

be construed liberally and held to a less stringent standard than formal pleadings

drafted by lawyers.”). Fed. R. App. P. 3(c)(4) provides that “[a]n appeal must not be

dismissed for informality of form or title of the notice of appeal, or for failure to

name a party whose intent to appeal is otherwise clear from the notice.” We liberally

construe the requirements of this rule, and even “when papers are technically at

variance with the letter of Rule 3, a court may nonetheless find that the litigant has

complied with the rule if the litigant's action is the functional equivalent of what the

rule requires.” Smith v. Barry, 502 U.S. 244, 248 (1992) (brackets and internal

quotation marks omitted). “Even if a notice fails to properly designate the order from

which the appeal is taken, this Court has jurisdiction if the appellant's intention was

clear.” Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007); see also Sines v.

Wilner, 609 F.3d 1070, 1074 (10th Cir. 2010) (“[W]e should not be hypertechnical in

ruling that a notice of appeal does not challenge a judgment or order that the

appellant clearly wished to appeal.”).



      2
        Although the parties apparently assumed this Court has the authority to
extend the time for filing a notice of appeal, we do not. See Fed. R. App. P.
4(a)(5)(A) (vesting such authority in the district court).
                                            4
         In light of these considerations, we construe Mr. Harper’s filings in response

to this Court’s order as the functional equivalent of a formal notice of appeal that was

timely filed insofar as he seeks to challenge the district court’s denial of his motion

for an extension of time. Taken together, these filings—all of which were filed

within the appeal period following the order denying the motion for an extension—

show that Mr. Harper clearly intended to appeal that order. In particular, his reply in

support of the revised motion for an extension refers to both the district court’s denial

of his earlier motion for an extension and his filings in response to this Court’s order

tolling briefing on the merits, which included the revised motion for an extension

along with a supporting memo and affidavit. Having determined that we have

jurisdiction over this portion of Mr. Harper’s appeal, we now turn to the underlying

order.

         “A district court's order refusing to extend the time for filing a notice of appeal

is itself an appealable final judgment . . . which this court reviews only for abuse of

discretion.” Bishop, 371 F.3d at 1206 (internal quotation marks omitted). Failure to

apply the correct legal standard in ruling on a motion constitutes an abuse of

discretion. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997) (“A clear

example of an abuse of discretion exists where the trial court fails to consider the

applicable legal standard or the facts upon which the exercise of its discretionary

judgment is based.”). As stated above, the decision of whether to grant or deny a

motion for an extension of time to file an appeal depends on whether the movant has

shown either excusable neglect or good cause. Bishop, 371 F.3d at 1206.

                                              5
      We conclude the district court abused its discretion by denying Mr. Harper’s

motion without addressing whether he had shown excusable neglect or good cause.

Instead, the court determined that the motion was moot because his appeal had

already been assigned a case number by this court. However, “the mere acceptance

and filing of a notice of appeal by a district court is [not] tantamount to the granting

of the requisite extension of time.” Lucas, 597 F.2d at 245 (“[T]he acceptance of a

notice of appeal for filing is a mere clerical function.”). We have an independent

duty to examine our own jurisdiction. Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d

1271, 1274 (10th Cir. 2001). As this appeal reveals, the acceptance of a notice of

appeal does not guarantee that we have jurisdiction over the appeal. The district

court did not apply the relevant standards for determining whether there was

excusable neglect or good cause, and therefore it abused its discretion by denying

Mr. Harper’s motion for an extension.

III. Conclusion

      The order denying Mr. Harper’s motion for an extension of time to file a

notice of appeal is vacated, and the case is remanded for further proceedings thereon.

This court lacks jurisdiction to consider any other issues at this time, and all pending

motions are denied as moot.


                                             Entered for the Court


                                             Bobby R. Baldock
                                             Circuit Judge


                                            6
