UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BARRY K. MCCLAMROCK,
Plaintiff-Appellant,

and

CARLTON M. DEVORE,
Plaintiff,
                                                                    No. 97-1930
v.

CONCORD, NORTH CAROLINA CITY, a
North Carolina Municipal
Corporation; WILLIAM MORRISON,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Russell A. Eliason, Magistrate Judge.
(CA-95-223-4)

Submitted: February 10, 1998

Decided: February 26, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Barry K. McClamrock, Appellant Pro Se. Jackson N. Steele, Anne E.
Essaye, William Mark Griffith, KILPATRICK STOCKTON, L.L.P.,
Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Barry McClamrock appeals from the magistrate judge's order*
denying his motion for reconsideration of the court's earlier order
denying reconsideration of the court's underlying judgment order. We
previously dismissed as untimely McClamrock's appeal from the
underlying judgment and from the magistrate judge's order denying
his first motion for reconsideration. See McClamrock v. City of
Concord, No. 97-1608 (4th Cir., Aug. 29, 1997). The order that
McClamrock now appeals issued on April 30, 1997.

The applicable time period for appealing this order was 30 days.
See Fed. R. App. P. 4(a); Wilder v. Chairman of the Cent. Classifica-
tion Bd., 926 F.2d 367, 370 (4th Cir. 1991). Thus, absent an autho-
rized grant of an extension of time to appeal, the appeal period would
have expired on Friday, May 30, 1997. The magistrate judge, how-
ever, granted an extension of time in this case based on McClam-
rock's May 12, 1997, motion for stay in which he requested that the
court stay the action on the ground that the weight of the evidence did
not support the jury's verdict in favor of the Appellees. The court
construed the motion as a request for an extension of time to appeal
and granted McClamrock ten days from the date of its order granting
the extension (June 26, 1997) to appeal the April order. McClamrock
then filed this appeal on July 3, 1997, within the ten day period.

District courts are authorized to grant an extension of time for fil-
ing a notice of appeal, within certain time frames, based upon an
appellant's showing of good cause or excusable neglect. Fed. R. App.
P. 4(a)(5); See Myers v. Stephenson, 781 F.2d 1036, 1038 n.3 (4th
Cir. 1986). In this case, the magistrate judge provided no explanation
_________________________________________________________________
*The parties consented to the jurisdiction of the magistrate judge pur-
suant to 28 U.S.C. § 636(c) (1994).

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for his decision to grant an extension other than that McClamrock, in
the court's view, requested one. Because this action is not authorized
by the Rules, we must vacate the magistrate judge's grant of an exten-
sion of time and remand for appropriate findings. We note that,
because McClamrock requested the extension prior to the expiration
of the appeal period, excusable neglect analysis is inappropriate. See
Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d 451, 453 (1st Cir.
1995). On remand, therefore, the magistrate judge's analysis should
be limited to whether McClamrock can show good cause for granting
an extension.

We are mindful of the fact that the Appellees have not objected to
the magistrate judge's grant of an extension in this case. Because,
however, the issue bears on the subject matter jurisdiction of the
court, such objection is unnecessary. See Prizevoits v. Indiana Bell
Tel. Co., 76 F.3d 132, 134-35 (7th Cir. 1996) (J. Eschbach, dissent-
ing). This is particularly true where the magistrate judge has not
addressed the issue of good cause, as opposed to the situation in
Prizevoits, where no party objected to the district court's finding of
good cause, but the court, on its own initiative, reversed because it
found the determination unsupportable. See id.

Accordingly, the magistrate judge's order granting authorization to
file an untimely appeal is vacated, and the case is remanded for fur-
ther proceedings consistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

VACATED AND REMANDED

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