                                      UNITED STATES DISTRICT COURT
                                      FOR THE DISTRICT OF COLUMBIA

 KATHRYN SACK,

                         Plaintiff,

                         v.                         Case No. 12-cv-00537 (CRC)

 CENTRAL INTELLIGENCE AGENCY,

                         Defendant.

                              MEMORANDUM OPINION AND ORDER

         On September 16, 2014, the Court issued an Order granting in part and denying in part the

Central Intelligence Agency’s (“CIA’s”) motion for summary judgment in this Freedom of

Information Act (“FOIA”) case. The question now before the Court is whether it was within the

Court’s power to grant the Plaintiff, Kathryn Sack, an extension of time to appeal its summary-

judgment order. The parties agree that the technical requirements for extending the deadline to

appeal were not met because Sack did not file her extension motion within the applicable deadline

and did not file a fee petition, which could have tolled that deadline. But Sack contends that the

appeal deadline should nonetheless be extended after the fact because the parties were in the

process of negotiating fees when the extension deadline passed. The Court cannot extend the

appeal deadline on this basis, however, because the filing of a timely motion to extend the appeal

deadline is a mandatory jurisdictional requirement. Accordingly, the Court will vacate its prior

Order.

         I.     Background

         The Court has detailed the factual background of this case in prior opinions and will focus

its attention on the procedural facts underlying this issue. Kathryn Sack brought this FOIA action

to compel the release of records withheld by the CIA in response to a series of requests for records
regarding the agency’s practice of administering polygraph tests to prospective employees. Sack

alleges she sought the records to demonstrate sources of inaccuracy and bias in the design and

implementation of the testing program. Compl. ¶ 13–37. On September 16, 2014, the Court

granted in part and denied in part the CIA’s renewed motion for summary judgment, finding the

bulk of the agency’s withholdings to be appropriate. However, the Court ordered the CIA to

disclose certain documents previously withheld under FOIA Exemption 3, and to either provide

additional justification for certain withholdings made pursuant to the National Security Act or

release those records to Sack.

       On December 2, 2014, after several extensions of the disclosure deadline, the parties filed,

and the Court granted, a Joint Motion to Vacate the Disclosure and Supplementation Deadline

(“Motion to Vacate”). In their joint motion, the parties agreed that the CIA would release certain of

the withheld documents in exchange for Sack’s withdrawal of her remaining challenge to

documents under Exemption 3, thereby “resolv[ing] all outstanding issues in this matter, with the

exception of the issue of attorneys’ fees.” Joint Mot. to Vacate ¶ 2. In the Minute Order granting

the Motion to Vacate, the Court further ordered the parties to submit a status report on or before

January 15, 2015 on the issue of attorneys’ fees. On January 21, 2015, the Court extended the time

to file the status report until February 16, 2015, per the parties’ request. The parties then filed the

report on February 26, 2015, informing the Court that they had reached an agreement in principle

on the attorneys’ fees issue. Subsequently, on March 11, 2015, the parties filed a Notice of

Settlement for Costs and Attorneys’ Fees.

       Up to this time neither party had filed a notice of appeal or requested an extension of time to

appeal. On May 1, 2015, however, Ms. Sack moved ex parte to extend the time to notice an appeal

pursuant to Federal Rule of Appellate Procedure (“FRAP”) 4(a)(5), citing a pending motion in a

related D.C. Circuit case which would have affected an appeal of this case. After the Court granted

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Sack’s motion on May 4, 2015, she moved to modify the Court’s January 21 Minute Order, which

granted her an extension of time to file a fee petition, into an extension of time to file an appeal on

the merits pursuant to Federal Rule of Civil Procedure (“FRCP”) 58(e). The CIA, meanwhile, has

moved for reconsideration of the Court’s May 4, 2015 Order granting an extension of the appeal

deadline.

       II.     Analysis

       Under FRAP 4(a)(1)(B), “a notice of appeal may be filed by any party within 60 days after

entry of the judgment or order appealed from.” This deadline may be modified only if “a party so

moves no later than 30 days after the time prescribed by this Rule 4(a) expires.” Fed. R. App. P.

4(a)(5). The period within which a notice of appeal must be filed begins to run upon entry of a

“final decision.” 28 U.S.C. § 1291. “A decision is not final unless it ‘ends the litigation on the

merits and leaves nothing for the court to do but execute the judgment.’” Blue v. D.C. Pub. Schs.,

764 F.3d 11, 15 (D.C. Cir. 2014) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521–22

(1988)). Here, Ms. Sack concedes that the Court’s December 2, 2014 Minute Order—which

vacated its order requiring the CIA to file a supplemental memorandum—“effectively clos[ed] the

case,” Pl.’s Mot. for Enlargement of Time [Dkt. No. 51] at 1, and was thus a “final decision” within

the meaning of 28 U.S.C. § 1291. At this point, the only remaining issue in the case was attorneys’

fees, and the appeal deadline began to run. See Budinich v. Becton Dickinson & Co., 486 U.S. 196,

199–203 (1988) (holding that a final decision is entered when all merits-related issues have been

resolved, without regard to any ancillary disputes regarding costs or attorneys’ fees); Elec. Privacy

Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 224 (D.D.C. 2011) (“If a court has

resolved the merits of a case through a final order and only a statutory request for attorney’s fees

remains, the merits of the case are no longer pending for appeal purposes and the judgment is

considered final and immediately appealable.”). Accordingly, the deadline to file an appeal

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regarding the merits of this case under FRAP 4(a)(5) was February 2, 2015, sixty days after the

December 2, 2014 Minute Order, and the time to seek an extension of the time to appeal expired on

March 4, 2015, as set forth in FRAP 4(a)(5).

       The filing of a timely notice of appeal is both “mandatory and jurisdictional.” Browder v.

Dep’t of Corr., 434 U.S. 257, 264 (1978). Neither a district court nor a court of appeals may grant a

further extension of time after the expiration of the thirty-day extension period provided for in

FRAP 4(a)(5). E.g., Ali v. Lyles, 769 F.2d 204, 205 (4th Cir. 1985) (citing Felix v. Cardwell, 545

F.2d 92 (9th Cir. 1976)). If a district court granted such an extension, the court of appeals would be

required to dismiss the case for lack of jurisdiction. Bowles v. Russell, 551 U.S. 205, 209–13

(2007). Here, under FRAP 4, Ms. Sack had until March 4, 2015 to move to extend the deadline to

file a notice of appeal. Her May 1, 2015 request for an extension was therefore untimely. The

Court must adhere to the mandatory Federal Rules and cannot extend Sack’s appeal deadline.

       Ms. Sack’s arguments to the contrary are unconvincing. She first contends that FRCP 58(e)

allows the Court to convert her motion for an extension of time to file a fee petition into a FRCP

59(e) motion to alter a judgment, thereby tolling the appeal deadline. FRCP 58(e) provides:

       Ordinarily, the entry of judgment may not be delayed, nor the time for appeal
       extended, in order to tax costs or award fees. But if a timely motion for attorney’s
       fees is made under Rule 54(d)(2), the court may act before a notice of appeal has
       been filed and become effective to order that the motion have the same effect under
       Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59.

Fed. R. Civ. P. 58(e). For Rule 58 to have the tolling effect explained above, two conditions must

be met: (1) a timely motion for attorneys’ fees must be made under Rule 54(d)(2), and (2) the court

must exercise its discretion to order that the motion have a tolling effect before a notice of appeal

has been filed and become effective. Fed. R. Civ. P. 58(e). As to the first requirement, Sack never

filed a motion for attorneys’ fees. And neither her request for an extension nor the parties’

settlement of attorneys’ fees can be treated as a motion for attorneys’ fees. The Federal Rules

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contain no ambiguity warranting such a magical transformation, and Sack’s argument that policy

considerations favor settlement cannot trump the mandatory, and jurisdictional, rules that apply to

appeal deadlines. Therefore, the first requirement of Rule 58(e) is not satisfied.

       As to the second requirement, Sack maintains that the Court should modify its order

extending the time to file a joint status report to reflect what she claims was the Court’s intention to

extend the appeal deadline. Under this view, her request to extend the deadline to file a status

report impliedly requested an extension of the appeal deadline. But Sack never asked that the

appeal deadline be extended; rather, she requested an extension of time to inform the Court

regarding settlement negotiations because her attorney was suffering from a “persistent illness.”

Consent Mot. for Extension of Time to File Joint Status Report (Jan 14, 2015). By granting this

request, the Court never expressly or impliedly exercised its discretion to extend the appeal

deadline. In sum, Sack’s argument that the appeal deadline should be tolled lacks merit. 1

       Ms. Sack next suggests that FRCP 58(e) is designed to allow courts of appeals to hear all

controversies at the same time and to discourage satellite litigation over fees. She argues that FRCP

58(e) should apply notwithstanding her failure to file a motion for attorneys’ fees because it would

be judicially efficient and because a contrary holding would force litigators to file motions for

appeal prematurely, while settlement negotiations are ongoing. Pl.’s Reply at 2–3. But these are

policy arguments for rewriting the Federal Rules, something the Court is in no position to do. And

Sack has not considered that an appeals court may consolidate the two appeals at any time, thereby

serving judicial economy while still adhering to the Federal Rules of Appellate Procedure.



1
  Another member of this Court recently confronted precisely the same issue in another FOIA case
brought by Ms. Sack and, for the same reasons, found that the Court lacked jurisdiction to grant an
extension of time to appeal after the deadlines set forth in FRAP 4 had expired. See Sack v. Central
Intelligence Agency, Order Denying Motion for Extension of Time, Civ. No. 12-244 (EGS), at 9
(D.D.C. July 1, 2015).

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        Nothing prevented Ms. Sack from filing for both an extension of time to submit a joint

status report as well as an extension of time to file a notice of appeal. In the end, Ms. Sack missed

her deadline to file a motion to appeal, and her motion requesting an extension of time to appeal

was untimely. Based on the Court’s December 2, 2014 Minute Order, the deadline to notice an

appeal was February 2, 2015, and the time to move to extend the deadline expired on March 4,

2015. Sack missed both deadlines. Accordingly, the Court’s May 4, 2015 Order granting Plaintiff

an extension to file her appeal was issued in error and will be vacated.

        III.   Conclusion

        For the foregoing reasons, it is hereby

        ORDERED that [58] Plaintiff’s Motion to Modify 1/21/15 Minute Order is DENIED as

moot. It is further

        ORDERED that [60] Defendant’s Motion for Reconsideration is GRANTED. It is further

        ORDERED that [63] Plaintiff’s Motion to Stay Case is DENIED as moot. And it is further

        ORDERED that the Court’s May 4, 2015 Order Granting Plaintiff’s Motion for Extension

of Time to File Notice of Appeal is VACATED.

        SO ORDERED.




                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge

Date:    August 26, 2015




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