                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                                      )
TREVOR BURT,                                          )
                                                      )
               Plaintiff,                             )
                                                      )
               v.                                     )        Civil Action No. 10-1911 (ESH)
                                                      )
NATIONAL REPUBLICAN CLUB OF                           )
CAPITOL HILL, et al.,                                 )
                                                      )
               Defendants.                            )
                                                      )

                                  MEMORANDUM OPINION

       On December 8, 2011, this Court granted summary judgment to defendants on plaintiff’s

employment discrimination suit. Federal Rule of Appellate Procedure 4(a)(1)(A) requires a

notice of appeal to be filed within thirty days of entry of judgment. Plaintiff missed the deadline

by two days, so he now moves this Court to extend his time to file a notice of appeal. For the

reasons set forth below, the Court will grant plaintiff’s motion.

                                        BACKGROUND

       This matter arises from plaintiff’s employment discrimination suit alleging that

defendants discriminated against him on the basis of race in violation of the Civil Rights Act of

1866, 42 U.S.C. § 1981, and the District of Columbia Human Rights Act, D.C. Code § 2-1401 et

seq. The Court granted defendants’ motion for summary judgment on December 8, 2011. See

Burt v. Nat’l Republican Club of Capitol Hill, No. 10-cv-1911, 2011 WL 6097981 (D.D.C. Dec.

8, 2011).1 Plaintiff’s previous counsel sent plaintiff an e-mail on December 12, 2011, relaying



1
 Both parties contend that judgment in this case was never entered under Federal Rule of Civil
Procedure 58. (See Pl.’s Mot. at 3; Defs.’ Bill of Costs Ex. 1, at 1 n. 1 [Dkt. No. 26].) This
contention is erroneous. See Kidd v. District of Columbia, 206 F.3d 35, 38-41 (D.C. Cir. 2000)
the Court’s decision, excerpting the Court’s opinion, informing plaintiff of the thirty-day filing

period, and notifying plaintiff that their representation agreement did not cover “post judgment

litigation” and that plaintiff would “need to seek other counsel to advise and/or represent you in

your appeal.” (Pl.’s Mot. Ex. 1; see also Pl.’s Reply at 1 n.1.) Plaintiff contacted current

counsel, Hnin Khaing, via e-mail on January 4, 2012, but due to scheduling conflicts, Khaing

could not meet with plaintiff until January 10, and at that time, she agreed to represent him.

(Pl.’s Mot. at 2-3.) On January 9, 2012, the period to file a notice of appeal lapsed. See Fed. R.

App. P. 4(a)(1)(A). On January 11, 2012, plaintiff, through an associate of Khaing’s, filed a

notice of appeal. (Notice of Appeal [Dkt. No. 24].)

       On February 6, 2012, plaintiff timely filed a motion requesting that this Court extend the

deadline to file a notice of appeal to January 11, 2012. See Fed. R. App. P. 4(a)(5)(A)(i).

Plaintiff alleges that the following circumstances amount to both “good cause” and “excusable

neglect” justifying the Court’s granting of such extension under Rule 4(a)(5): “(1) termination of

representation of previous counsel; (2) improper advice by previous counsel; (3) lack of timely

knowledge of this Court’s entry of summary judgment; (4) lack of sufficient time to seek new

counsel; and (5) lack of financial ability to secure new counsel.” (Pl.’s Mot. at 1-2.) Plaintiff’s

motion, defendants’ opposition, and plaintiff’s reply are now before the Court.

                                            ANALYSIS

I.     LEGAL STANDARD

       The filing of a timely notice of appeal is both mandatory and jurisdictional. Moore v. S.C.

Labor Bd., 100 F.3d 162, 163 (D.C. Cir. 1996) (per curiam) (citing Browder v. Dir., Dep't of


(district court order stating “Motion for Summary Judgment . . . is GRANTED” constitutes “a
judgment under Rule 58”). The December 8, 2011 Order in this case states that “Motion for
Summary Judgment . . . is GRANTED” and thus beyond any question qualifies as a “judgment”
under Rule 58.
                                                      2
Corr., 434 U.S. 257, 264 (1978)). Parties must file a notice of appeal within thirty days after

judgment or the order appealed from is entered. Fed. R. App. P. 4(a)(1)(A). However, a district

court retains discretion to determine whether plaintiff has shown “excusable neglect” or “good

cause” sufficient to warrant the filing of a notice of appeal after the prescribed deadline has

passed. See Fed. R. App. P. 4(a)(5)(A) (“The district court may extend the time to file a notice of

appeal . . . .”); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 n.5 (D.C.

Cir. 2001) (“We review [Rule 4(a)(5)] orders on an abuse of discretion standard, see Johnson v.

Lehman, 679 F.2d 918, 919-20 (D.C. Cir. 1982)[.]”).

        “The excusable neglect standard applies in situations in which there is fault; in such

situations, the need for an extension is usually occasioned by something within the control of the

movant.” Fed. R. App. P. 4(a)(5)(A)(ii), Advisory Committee Notes to 2002 Amendments. In

contrast, the “good cause” standard applies where the motion for extension is “occasioned by

something that is not within the control of the movant . . . . If, for example, the Postal Service

fails to deliver a notice of appeal . . . .” Id. Because the reasons given for delay were largely

within plaintiff’s control, the question before the Court is whether plaintiff has demonstrated

“excusable neglect” to justify an extension of time to file his notice of appeal.

II.    EXCUSABLE NEGLECT

       The Supreme Court established, in Pioneer Investment Services, Inc. v. Brunswick

Associates, Ltd., 507 U.S. 380, 392-94 (1993), that excusable neglect is an “elastic concept”

encompassing “situations in which the failure to comply with a filing deadline is attributable to

negligence.”2 A determination of whether neglect is “excusable” is “at bottom an equitable one,



2
  “Although Pioneer interpreted excusable neglect in the context of a bankruptcy rule, every
circuit court that has considered the question has extended Pioneer to determinations of
excusable neglect under Rule 4 . . . . While not explicitly extending Pioneer to such
                                                      3
taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395. The

relevant factors include: (1) the danger of prejudice to the other party; (2) the length of the delay

and potential impact on judicial proceedings; (3) the reason for the delay, including whether it

was within the reasonable control of the movant; and (4) whether the movant acted in good faith.

See id. Considering all the relevant facts, the Court finds that plaintiff has shown that his delay

in filing a notice of appeal was due to excusable neglect.

       Defendants argue that they will be “heavily prejudiced by having to spend the time, effort

and expense to oppose this frivolous motion and oppose the appeal if Plaintiff’s Motion is

ultimately granted . . . .” (Defs.’ Opp’n at 6.) This argument is unpersuasive, for if accepted, it

would eviscerate the very concept of “excusable” neglect. No neglect would ever be excusable if

the prejudice of “having to spend the time, effort and expense” to oppose a motion for extension

or to litigate an appeal were dispositive in this context. (See id.) Furthermore, courts in this

district have determined that the first two Pioneer Investment Services factors “are of minimal

relevance when applied to Rule 4(a)(5)(A)(ii) considering that a related motion can only be

considered when it is brought within 30 days after the Rule 4(a)(1) filing deadline.”

Anyanwutaku v. Wilson, No. 00-cv-2296, 2006 WL 1663407, at *3 (D.D.C. June 12, 2006)

(citing Webster, 270 F. Supp. 2d at 14).

       Defendants also point out that plaintiff received written notice from his former counsel

that he had thirty days from December 8, 2012, to file a notice of appeal under Rule 4. (See

Defs.’ Opp’n at 1-2; Pl.’s Mot. Ex. 1, at 2; see also Pl.’s Reply at 1 n.1.) Plaintiff was thus on

notice, bringing the reason for delay further within his control and weighing against a finding of


determinations, this Circuit has cited Pioneer in reviewing motions for extensions of time to file
a notice of appeal.” Webster v. Pacesetter, Inc., 270 F. Supp. 2d 9, 12 n. 6 (D.D.C. 2003)
(citations omitted); see also Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir. 1996).

                                                      4
excusable neglect. See Pioneer, 507 U.S. at 395. Furthermore, courts have declined to find

excusable neglect in cases factually similar to this one—albeit with the notable distinction that in

those cases, the plaintiffs had a past history of either knowing about or missing filing deadlines.

See Slovinec v. Amer. Univ., 552 F. Supp. 2d 12, 14 (D.D.C. 2008) (no excusable neglect where

pro se litigant alleged “pressurized job search” and limited resources as reasons for delay, as

litigant’s court filings demonstrated thorough knowledge of deadlines); Anyanwutaku, 2006 WL

1663407, at *2 (no excusable neglect where plaintiff claimed “emotional disorganization” and

other medical reasons caused delay, as plaintiff retained same counsel throughout filing period

and had a “nearly unfailing pattern of untimely filing of documents over the course of his

litigious history”).

        The fact that plaintiff had notice of the deadline certainly establishes that he was at fault

for the delayed filing, but mere fault does not alone defeat a claim of excusable neglect. See

Pioneer Inv. Servs., 507 U.S. at 387; see also Webster, 270 F. Supp. 2d at 14 (Pioneer holds that

“fault on the part of a late filer does not extinguish a claim of excusable neglect”). In fact, courts

have found excusable neglect where, as here, plaintiff’s counsel abruptly withdrew and plaintiff

was left without representation for the pendency of the Rule 4 filing period. See Griffin v.

George B. Buck Consulting Actuaries, Inc., 573 F. Supp. 1134, 1135 (S.D.N.Y. 1983); Ecoban

Capital Ltd. v. Ratkowsky, No. 88-cv-5848, 1990 WL 3929 (S.D.N.Y. Jan. 16, 1990).

        In Griffin, the court entered judgment, plaintiff’s attorney withdrew, the Rule 4 filing

period lapsed, and plaintiff filed a pro se late notice of appeal. 573 F. Supp. at 1134-35. The

court, treating plaintiff’s notice as a motion for extension of time, held:

        [T]he withdrawal of Griffin’s attorney following entry of judgment and Griffin’s
        unfamiliarity with appellate procedure provide good cause to permit an extension of time
        for filing the notice of appeal, and . . . the strong policy favoring disposition of legal



                                                      5
          claims on their merits justifies the resolution of any doubts on the subject in favor of
          permitting the appeal.

Griffin, 573 F. Supp. at 1135. While the court in Griffin cited “good cause” as the reason for its

decision, its reasoning more accurately supports a finding of “excusable neglect,” since plaintiff

had control over the reason for delay—his own unfamiliarity with appellate procedure. See Fed.

R. App. P. 4(a)(5)(A)(ii), Advisory Committee Notes to 2002 Amendments.

          In Griffin, as in this case, original counsel for plaintiff withdrew soon after the case was

dismissed; but in Griffin, plaintiff filed his untimely notice of appeal pro se and never hired new

lawyers after original counsel withdrew. See 573 F. Supp. at 1135. Plaintiff here was effectively

a pro se litigant from the time his counsel withdrew on December 8, 2011, until Khaing’s

acceptance3 of his case on January 10, 2012 —one day after the filing deadline. (See Pl.’s Mot.

at 2-3; Defs.’ Opp’n at 2-3.) This factual difference between the cases would have been relevant

had plaintiff retained Khaing prior to the filing deadline and Khaing had then negligently failed

to file a timely notice of appeal. See Webster, 270 F. Supp. 2d at 14 (attorney error does not

constitute “excusable neglect” for purposes of Rule 4(a)(5)(A)(ii)). But that is not what happened

here. 4




3
  The fact that plaintiff contacted Khaing on January 4, but that Khaing’s professional
obligations prevented them from scheduling an initial consultation until January 10 (Pl.’s Mot. at
2-3; Defs. Opp’n at 2) does not counsel against a finding of excusable neglect. Attempts to
contact counsel before the running of the deadline would, if anything, indicate good faith by
plaintiff. Though a movant’s good faith does not always support a finding of excusable neglect,
it is one of the four Pioneer Investment Services factors that favor extending the filing deadline.
4
 That Khaing erroneously believed judgment had not been entered and that the Rule 4 filing
deadline had therefore not lapsed is of no moment—Khaing’s involvement in the case only
began the night of January 10, one day after the filing period had run. (See Pl.’s Mot. at 3.) The
notice of appeal was filed the next morning, which was, in the Court’s determination, as soon as
practicably possible. (See id.) Moreover, Khaing’s inability to accept plaintiff’s case until six
days after he initially called her is not the kind of inexcusable attorney error contemplated by the
                                                        6
        Plaintiff should not be denied the protections afforded to pro se litigants because he

eventually filed his untimely notice of appeal through counsel. He was effectively a pro se

litigant for almost the entirety of the thirty-day filing period, subject during that period to the

same handicap—unfamiliarity with appellate procedure following withdrawal of original

counsel—that the Griffin court found sufficient to excuse neglect. While plaintiff in this case,

unlike plaintiff in Griffin, technically had notice of the thirty-day filing deadline, plaintiff’s

confusion engendered by former counsel’s statement that the “case is now over” (Pl.’s Mot. Ex.

1, at 2; see also Pl.’s Mot. at 2) is understandable in light plaintiff’s lack of legal sophistication

and the sudden absence of counsel who could have explained the appellate process and the

significance of the filing deadline.

        Ecoban Capital was another case involving termination of a relationship with previous

counsel following entry of summary judgment. 1990 WL 3929, at *1. There, “[d]espite their

efforts, [movants] were unable to obtain new counsel until after the time to appeal permitted

under Rule 4(a)(1) had expired,” and only filed their notice of appeal once they had obtained

new counsel and after the thirty-day period had lapsed. Id., at *2. Ecoban Capital distinguished

“administrative failure by the appellant's attorney” from situations in which the moving party is

“abruptly left without legal representation shortly after judgment was entered against them” in

holding that the filing delay was caused by plaintiff’s excusable neglect. Id., at *2. In finding

excusable neglect, the court noted that the moving party’s inability to find counsel was

“exacerbated by the number of defendant-investors involved in these proceedings, the fact that

they are geographically spread across the country, and, most significantly, by the complexity of

the numerous proceedings in question to which most are parties.” Id. Plaintiff’s inability to find


case law. See, e.g., Webster, 270 F. Supp. 2d at 14 (delay caused by attorney misinterpretation
of legal rules is not excusable).
                                                       7
counsel here was likewise exacerbated by his limited personal understanding of the significance

of the judgment against him, his modest financial means, and the difficulty of finding an attorney

on short notice during the holiday season. Although any one of these listed exacerbating factors

might alone be insufficient to find excusable neglect, they are, when considered in the aggregate,

enough to tip the balance in plaintiff’s favor.

                                          CONCLUSION

       Because this Court finds that plaintiff’s has shown excusable neglect, plaintiff’s motion

nunc pro tunc for extension of time to file notice of appeal is granted, and the Court will treat

plaintiff’s January 11, 2012 notice of appeal as having been timely filed.




                                                                /s/
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge

Date: April 3, 2012




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