                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                  )
UNITED STATES OF AMERICA,        )
ex rel. GORDON GREEN,            )
                                  )
     Plaintiff,                   )
                                  )
     v.                           ) Civil Action No. 09-738 (RWR)
                                  )
SERVICE CONTRACT EDUCATION       )
AND TRAINING TRUST FUND, et al., )
                                  )
     Defendants.                  )
________________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Gordon Green has filed a motion nunc pro tunc for

extension of time to file notice of appeal of the February 13,

2012 Order that dismissed his complaint against the Service

Contract Education and Training Trust Fund (“SCETTF”), the

Laborers’ International Union of North America (“LIUNA”), and

five government contractors.1   Green brought his action as a

relator under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33,

alleging that the defendants engaged in a scheme to defraud the

United States.   The United States declined to intervene in the

action.   Green filed a notice of appeal of the dismissal on

April 11, 2012, 58 days after entry of the final order.   On

May 1, 2012, 78 days after the final order, and following an

order by the Court of Appeals for the District of Columbia



     1
       Green seeks to appeal the final order with regard to only
SCETTF and LIUNA. (Pl.’s Notice of Appeal at 1 & n.1.)
                                - 2 -

Circuit directing Green to show cause why his appeal should not

dismissed as untimely, Green filed the present motion to extend

time to appeal.

     The deadline to file a notice of appeal is “mandatory and

jurisdictional.”    Browder v. Dir., Dep’t of Corr. of Illinois,

434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361

U.S. 220, 229 (1960)); see also Bowles v. Russell, 551 U.S. 205,

214 (2007) (emphasizing that “the timely filing of a notice of

appeal in a civil case is a jurisdictional requirement”).   Under

Federal Rule of Appellate Procedure 4 and 28 U.S.C. § 2107, a

party in a civil case must file a notice of appeal within 30 days

of entry of an appealable order.   Fed. R. App. P. 4(a)(1)(A); 28

U.S.C. § 2107(a).   If, however, the United States or an officer

or agency of the United States is a party to the action, the time

to file notice of appeal is 60 days.    Fed. R. App. P. 4(a)(1)(B);

28 U.S.C. § 2107(b).   In United States ex rel. Eisenstein v. City

of New York, 556 U.S. 928, 937 (2009), the Supreme Court held

that where, as here, “the United States has declined to intervene

in a privately initiated FCA action, it is not a ‘party’ to the

litigation for purposes of either § 2107 or Federal Rule of

Appellate Procedure 4.”   Accordingly, the 30-day time limit

governs the filing of a notice of appeal in a privately initiated

FCA action, id., and Green’s notice, filed 58 days after entry of

the final order, is untimely.
                                 - 3 -

        In his motion for extension, Green’s counsel concedes that

the notice of appeal was untimely, but states that he was

“unaware of the holding in Eisenstein when deciding when to file

Mr. Green’s notice of appeal” and that the Memorandum Opinion

setting forth the reasons for dismissing the case was “detailed

and complex, requiring careful analysis to determine the

appropriateness of an appeal.”    (Pl.’s Mot. Nunc Pro Tunc for

Extension of Time to File Notice of Appeal (“Pl.’s Mot.”) at 3.)

Green’s counsel contends that these factors warrant a finding of

“excusable neglect” entitling Green to an extension.    (Id. at 2-

3.)   Defendants SCETTF and LIUNA oppose Green’s motion.

        Fed. R. App. P. 4(a)(5)(A) provides:

        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.

Fed. R. App. P. 4(a)(5)(A) (emphasis added).    As the text of the

rule makes clear, regardless of a showing of good cause or

excusable neglect, a district court is empowered to grant an

extension only when a party files a motion seeking such relief no

later than 30 days after the time for appeal expires.    Green’s

deadline to appeal was March 14, 2012 and, accordingly, his

deadline to move for an extension of time to appeal was April 13,

2012.    Because Green did not move for an extension until May 1,
                                - 4 -

his motion is untimely and no rule or statute empowers a district

court to provide him relief.    See Bowles, 551 U.S. at 214-15

(finding “no authority to create equitable exceptions to

jurisdictional requirements” and accordingly affirming the

dismissal of an appeal brought after a district court purported

to extend a party’s time for filing the appeal beyond the period

allowed by Rule 4 and 28 U.S.C. § 2107).

     Green contends in his reply that a district court possesses

the authority to grant his untimely motion under the D.C.

Circuit’s decision in Anderson v. District of Columbia, 72 F.3d

166 (D.C. Cir. 1995) (per curiam), which held that a timely

notice of appeal was valid, even though the notice mistakenly

stated that appeal was being taken to the United States Supreme

Court rather than the United States Court of Appeals.    The

Anderson decision noted that the district court had denied the

plaintiff’s motion under Rule 4 to correct his error on the

grounds that a motion for extension of time to file notice of

appeal must be filed no later than 30 days after the time for

noting an appeal has passed.2   Id. at 167.   However, in holding

that the notice of appeal was valid, the Anderson court did not

endorse the view, advanced by Green, that a district court could

grant a motion for extension outside the statutory period



     2
       The plaintiff had filed his Rule 4 motion 137 days after
expiration of the appeal deadline. Anderson, 72 F.3d at 167.
                               - 5 -

prescribed by Rule 4.   Rather, the court’s decision rested on its

interpretation of a separate provision, Rule 3(c), which requires

that a notice of appeal designate the name of the court to which

appeal is taken, and with which the court found the plaintiff’s

notice sufficiently complied “because it was obvious in which

court his appeal properly lay.”   Id. at 168.   Anderson therefore

does not provide authority for the proposition that a district

court may consider a motion for extension of time to appeal filed

outside the statutorily prescribed period.   Neither do the other

cases that Green cites without elaboration favor his position.

See, e.g., Farmhand, Inc. v. Anel Eng’g Indus., Inc., 693 F.2d

1140, 1145-46 (5th Cir. 1982) (noting that, following notice of

appeal, district courts maintain jurisdiction as to unrelated

matters and may take action in aid of the appeal such as making

clerical corrections); Athridge v. Iglesias, 464 F. Supp. 2d 19,

22-23 (D.D.C. 2006) (same).

     Green emphasizes that his notice of appeal was filed within

60 days of entry of the final order, seeming to suggest that his

untimely motion for extension somehow relates back to the notice

of appeal or that the filing of the notice itself functioned as a

request for an extension.   (See Pl.’s Reply at 2 (“Mr. Green’s

notice was filed within the sixty-day time period, and the motion

to allow the already-filed notice to be effective may be

considered.”) (emphasis in original).)   Eleven circuits have
                               - 6 -

considered whether a notice of appeal can be treated as a motion

for extension of time to appeal under Rule 4(a)(5) and all have

answered in the negative.   Wyzik v. Emp. Benefit Plan of Crane

Co., 663 F.2d 348, 348 (1st Cir. 1981) (per curiam)3; Campos v.

LeFevre, 825 F.2d 671, 675-76 (2d Cir. 1987); Herman v. Guardian

Life Ins. Co. of Am., 762 F.2d 288, 289-90 (3rd Cir. 1985) (per

curiam); Myers v. Stephenson, 748 F.2d 202, 204 (4th Cir. 1984);

Bond v. W. Auto Supply Co., 654 F.2d 302, 303-04 (5th Cir. 1981);

Pryor v. Marshall, 711 F.2d 63, 64-65 (6th Cir. 1983); United

States ex rel. Leonard v. O’Leary, 788 F.2d 1238, 1239-40 (7th

Cir. 1986) (per curiam); Campbell v. White, 721 F.2d 644, 645-46

(8th Cir. 1983); United States ex rel. Haight v. Catholic

Healthcare W., 602 F.3d 949, 956 (9th Cir. 2010); Mayfield v.

U.S. Parole Comm’n, 647 F.2d 1053, 1055 (10th Cir. 1981) (per

curiam); Brooks v. Britton, 669 F.2d 665, 667 (11th Cir. 1982).

The D.C. Circuit has not passed on the issue.   Nonetheless, the

Supreme Court’s exhortation in Bowles, 551 U.S. at 214-15, that

federal courts not fashion equitable exceptions to the


     3
       The First Circuit reserved the question “[w]hether or not
in truly extraordinary circumstances beyond the ability of
counsel to foresee or guard against, a court would have any
flexibility in applying this rule.” Wyzik, 663 F.2d at 348.
That Green’s counsel was unaware of Eisenstein, a Supreme Court
case decided three years ago, does not constitute “truly
extraordinary circumstances,” despite counsel’s contention that
the case is in apparent contradiction with prior holdings and
that therefore it was “not obvious” that the 60-day deadline for
appeal of actions in which the United States is a party did not
govern this case (Pl.’s Reply at 3; see also Pl.’s Mot. at 2-3).
                                - 7 -

jurisdictional requirement of a timely appeal counsels strongly

in favor of following the considered, uniform guidance of sister

circuits.    The same result, moreover, is compelled by the Supreme

Court’s unanimous decision in Eisenstein.       There, the Court chose

to affirm the dismissal of a relator’s appeal rather than to

remand for the district court to consider whether to construe as

a motion for extension the untimely notice of appeal that the

relator filed, as Green did here, in reliance on the 60-day

deadline, or to provide some other relief.       Eisenstein, 556 U.S.

at 937.   Accordingly, it is hereby

     ORDERED that the plaintiff’s motion [91] nunc pro tunc for

an extension of time to file a notice of appeal be, and hereby

is, DENIED.

            SIGNED this 31st day of May, 2012.


                                                  /s/
                                        RICHARD W. ROBERTS
                                        United States District Judge
