                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



    ROBERT HICKEY
        Plaintiff,

                v.                                      Civil Action No. 07-1866 (JDB)
    CHARLENE SCOTT,

          Defendant.


                           MEMORANDUM OPINION & ORDER

        This action is on remand by order of the D.C. Circuit, which directed that this Court

determine an issue related to the scope and timeliness of plaintiff Robert Hickey’s appeal. The

case involves a long-running dispute between Hickey and defendant Charlene Scott, and its

details are extensively detailed in this Court’s previous decisions. The parties narrowed the

issues through pretrial motions practice, and the case was tried before a jury on the remaining

claims in 2011. The jury returned a verdict against Hickey on his breach of contract claim for

unpaid attorney’s fees against Scott, his former client, and effectively against Scott on her

counterclaims for attorney negligence (or malpractice) and breach of fiduciary duty.1 As a result,

the jury did not award either party any recovery.

                                        BACKGROUND

        Before he filed a notice of appeal, Hickey was hospitalized due to serious injuries

sustained in a car accident, which occurred during the time period after the jury returned its


1
      Even though the jury found for Scott on her breach of fiduciary duty counterclaim, it
awarded her no damages.
                                                1
verdict but before the clerk entered judgment on the jury’s verdict—Scott’s motion for attorney’s

fees was still pending. [ECF No. 87]. Two days after this Court issued an Order requiring Hickey

to pay Scott’s attorney’s fees, [ECF No. 184], the clerk entered judgment on the jury’s verdict,

pursuant to Federal Civil Rule 58(b)(1). [ECF No. 185]. While Hickey was in the hospital, and

more than a month after judgment on the jury’s verdict was entered, his counsel filed an

opposition to Scott’s bill of costs in this Court. About a month later, this Court denied the Bills

of Costs submitted by both parties because neither party was a prevailing party entitled to

recover costs. [ECF No. 189]. Hickey filed a notice of appeal thirty days after the entry of the

Order denying his bill of costs. In that notice, he purported to appeal from “Orders issued by the

District Court entered in this action including that issued on November 28, 2011 denying

Appellant’[s] Bill of Costs.” [ECF No. 190].

       Scott moved the D.C. Circuit to dismiss Hickey’s appeal as untimely. The D.C. Circuit

denied her motion without prejudice, finding that Hickey’s notice of appeal was timely as to the

denial of the bill of costs, and directing the parties to address in their briefs whether the notice of

appeal was timely as to the judgment entered on the jury’s verdict. Extensive—and apparently

unhelpful—briefing ensued. On October 17, 2013, the D.C. Circuit issued an Order requiring this

Court to resolve the issue of the timeliness of Hickey’s appeal. Specifically, the D.C. Circuit

directed this Court to determine

       whether the notice of appeal and/or any other pertinent filings should be treated as
       a motion for an extension of time to appeal the orders entered in this case prior to
       November 28, 2011 [the date of the Order denying the parties’ bills of costs]
       under Fed. R. App. P. 4(a)(5) or as a motion to reopen the appeal period as to
       these orders under Fed. R. App. P. 4(a)(6) and, if so, whether the motion should
       be granted.

Because the judgment on the jury’s verdict entered on September 28, 2011 was the last order

issued by the Court before the November 28, 2011 order denying the bills of costs, the Court will

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analyze the requirements of Rules 4(a)(5) and 4(a)(6) with reference to that September 28, 2011

judgment. Upon consideration of the D.C. Circuit’s order, Hickey’s notice of appeal, other

relevant filings, applicable law, and the entire record herein, the Court finds that Hickey did not

file anything capable of construction as either a motion for an extension of time to appeal or a

motion to reopen the appeal period, and hence there is no vehicle through which an extension or

reopening could be granted.

                                           ANALYSIS

       Under Federal Appellate Rule 4, a party ordinarily must file a notice of appeal within

thirty days of “the entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A).

Only under the limited circumstances provided in Rule 4(a) may a district court relax this

jurisdictional requirement in a civil case. Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257,

264 (1978) (deadline in Rule 4 is “mandatory and jurisdictional” (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”).

I.     Hickey did not file a Rule 4(a)(5) motion

       A party may file a motion for extension of time to file a notice of appeal under Rule

4(a)(5) in two circumstances: first, if the party moves within thirty days after the party’s initial

time to notice an appeal expires, or second, if the party shows “excusable neglect or good cause,”

regardless of when the motion is filed. Fed. R. App. P. 4(a)(5)(A)(i), (ii). The deputy clerk of the

Court entered judgment on the jury’s general verdict denying all relief on September 28, 2011.

That judgment finally adjudicated each of the parties’ remaining claims and counterclaims, and

as such was an appealable final order under 28 U.S.C. § 1291. See Fed. R. Civ. P. 54. Hickey did



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not file any motions following entry of the jury’s verdict on September 28, 2011. The only two

filings2 made on his behalf were [188] an opposition to Scott’s bill of costs, filed by Hickey’s

counsel on November 1, 2011, and [190] his notice of appeal, which he himself filed on

December 28, 2011.

       Because the deadline in Rule 4 is jurisdictional, the Supreme Court has cautioned that

federal courts have no authority “to create equitable exceptions” to the deadline. Bowles, 551

U.S. at 214. Construing a notice of appeal as a motion for extension of time under Rule 4(a)(5) is

one such equitable exception often pressed and equally as often rejected. “Eleven circuits have

considered whether a notice of appeal can be treated as a motion for extension of time under

Rule 4(a)(5) and all have answered in the negative.” United States ex rel. Green v. Serv. Contract

Educ. & Training Trust Fund, 863 F. Supp. 2d 18, 20-21 (D.D.C. 2012) (collecting cases).

Although the D.C. Circuit has not decided the issue, another judge in this district has followed

the “uniform guidance” of the other eleven circuits to hold that a notice of appeal cannot be

treated as a motion for extension of time. Id.

       The national uniformity of this holding stems from the 1979 amendments to the Federal

Rules of Appellate Procedure: those amendments revised Rule 4(a)(5) to require a motion “in

compliance with the F.R.C.P. and local rules of the district court.” Fed. R. App. P. 4 advisory

committee’s note. Under the old rule, there was a “possible implication that prior to the time the

initial appeal time has run, the district court may extend the time on the basis of an informal

application,” such as a late notice of appeal, but the amendment “would require that the

application must be made by motion.” Id. Indeed, before the amendments, “case law ‘[i]n



2
        Hickey also filed a notice regarding his attorney membership renewal fees for the D.C.
bar in mid-January. [ECF No. 192]. Because this filing is not capable of construction as a motion
of any kind, the Court omits it from the Rule 4(a)(5) analysis.
                                                 4
effect . . . treated the late-filed notice of appeal as’” a motion for extension of time. Brooks v.

Britton, 669 F.2d 665, 667 (11th Cir. 1982) (citing Sanchez v. Board of Regents, 625 F.2d 521,

523 (5th Cir. 1980)). But after the amendments, eleven circuits came to the same conclusion:

Rule 4(a)(5) requires an actual motion. This Court finds the holdings of eleven circuits and the

committee notes, as well as the holding of another judge in this district, to be persuasive.

Accordingly, the Court will not construe Hickey’s notice of appeal as a motion for extension of

time, under either Rule 4(a)(5)(A)(i) or (ii).

       That leaves Hickey’s opposition to Scott’s bill of costs, Docket No. 188, filed on

November 1, 2011. To begin with, nothing in the above analysis suggests that courts may now

construe “informal applications” other than notices of appeal as motions for extension of time.

See Sanders v. United States, 113 F.3d 184, 186 (11th Cir. 1997) (“a formal motion for extension

of time . . . must be filed in the district court”) (emphasis added); Campbell v. White, 721 F.2d

644, 646 (8th Cir. 1983) (“We are aware that before 1979 any kind of filing might be treated as a

motion for extension . . . .”) (emphasis added). But even assuming that courts may permissibly

construe filings like the opposition to costs as a motion for extension of time, this Court declines

to do so here.

       As a threshold matter, if the opposition to costs was a motion for extension of time, it was

timely filed under Rule 4(a)(5)(A)(i), which requires that the motion be filed within thirty days

after the time to file a notice of appeal expires. It was filed just over a month after the clerk

entered judgment, or a few days after the time to notice an appeal expired. Yet the two-page

opposition, a memorandum solely about costs, is appropriately styled as Hickey’s response to

Scott’s amended bill of costs and not as a motion for extension of time. The only material

relevant to any appeal is in a footnote, where Hickey’s counsel explains that Hickey was



                                                 5
hospitalized following the car accident, and that Hickey informed his counsel that “he believe[d]

no final order ha[d] been issued (or received by him) which would start the appeal process.”3

[ECF No. 188] 1 n.1. Hickey also informed his counsel that “if a final order is issued (or ha[d]

been issued, unknown to him), he would seek an extension of any briefing schedule until at least

March 1, 2012.” Id. An indication to counsel, repeated to the Court, that Hickey “would seek an

extension of any briefing schedule,” conditioned on his awareness of a final order, is far too

speculative to be construed as a motion for an extension of time. Id. Burying an indication of a

conditional desire to file an extension motion in a footnote to an opposition filed on a costs issue

does not meet Rule 4(a)(5)(A)(i)’s simple requirement of filing a motion for extension of time

within a certain time period—particularly when district courts are not to extend the time to

appeal based on informal applications.

       The opposition to costs also fails to meet Rule 4(a)(5)(A)(ii)’s requirements. Under that

provision, a party may move for an extension of time if that party shows excusable neglect or

good cause, regardless of when the motion is filed. But again, Hickey filed no motion, only the

opposition on the costs issue. Even construing the opposition as a motion—which the Court

declines to do—the Court would also have to construe the footnote in the opposition as a

showing of excusable neglect or good cause. This Court is not blind to the fact that the blown

deadline to notice an appeal may have been attributable to Hickey’s car accident and resulting

hospitalization. Nevertheless, Hickey’s counsel represented that Hickey advised her of his

hospitalization two days before the deadline to file a notice of appeal expired. Even if scrambling

to meet that deadline was not possible under the circumstances, Hickey’s counsel would have

been well within the deadline to file a motion for extension of time under Rule 4(a)(5)(A)(i). Put

3
        A footnote in Hickey’s notice of appeal is consistent with the view that he was unaware
of any final orders preceding the order of November 28, 2011, which addressed costs.
                                                 6
another way, Hickey’s hospitalization did not prevent his counsel from filing the opposition to

costs, so why should it excuse filing a motion for extension of time to appeal when counsel

discussed the very issue with him? And had counsel missed the Rule 4(a)(5)(A)(i) deadline, it

was still possible to file a motion under Rule 4(a)(5)(A)(ii) citing the car accident and

hospitalization as excusable neglect or good cause. Neither Hickey nor his counsel ever filed any

such motion. To recap: for the opposition to costs to satisfy Rule 4(a)(5)(A)(ii), this Court would

have to construe it as a motion for extension of time that demonstrated excusable neglect or good

cause. But the footnote itself shows that any neglect was not excusable; that any cause was not

good. After all, it shows that Hickey communicated with counsel about the appeals deadline—

specifically noting that if an order had been issued unknown to Hickey (yet knowable to counsel,

as it had been docketed for more than a month) that he would seek to delay the briefing schedule

on appeal. The opposition to costs thus does not explain the failure to file an extension motion.

As a result, the Court will not construe the opposition to costs as a motion for extension of time

to appeal the final judgment under Rule 4(a)(5)(A)(ii).

II.    Hickey did not file a Rule 4(a)(6) motion

       The next question is whether the notice of appeal or the opposition to costs should be

construed as a motion under Rule 4(a)(6), under which a district court may briefly enlarge the

time to notice an appeal. To begin with, the lack of a formal motion under Rule 4(a)(6) may be

just as fatal as the absence of a formal motion under Rule 4(a)(5). See Poole v. Family Ct. of

New Castle Cnty., 368 F.3d 263, 267-68 (3d Cir. 2004) (comparing Rules and holding that Rule

4(a)(6) also requires a motion). Nevertheless, the Court need not so hold to find that Hickey did

not satisfy the terms of Rule 4(a)(6). A motion under that Rule must be filed within fourteen days

after “the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry”



                                                7
of the judgment or order sought to be appealed, but not later than 180 days after the judgment or

order is entered. In addition, the Court must find “that the moving party did not receive notice

under [Rule 77(d)] of the entry of the judgment or order sought to be appealed within 21 days

after entry,” and that no party would be prejudiced by an order granting the motion.

       A.      Hickey received notice of the judgment within twenty-one days of its entry

       The clerk entered the judgment on the jury’s verdict on September 28, 2011. Under

Federal Civil Rule 77(d), “the clerk must serve notice of the entry, as provided in Rule 5(b), on

each party who is not in default for failing to appear . . . [and] [t]he clerk must record the service

on the docket.” Rule 5(b), in relevant part, permits service by “sending it by electronic means if

the person consented in writing—in which event service is complete upon transmission . . . .”

Local Rule 5.4(d)(1), effective as of March 2010 and updated July 2011, provides that

“[e]lectronic filing of any document operates to effect service of the document on counsel . . .

who have obtained CM/ECF passwords,” and Local Rule 5.4(b)(6) provides that “[a]n attorney

or pro se party who obtains a CM/ECF password consents to electronic service of all documents,

subsequent to the original complaint, that are filed by electronic means . . . .” Brief perusal of the

docket reveals that both Hickey and his counsel were capable of filing documents and receiving

notice via CM/ECF. The entry for Docket No. 185, the judgment on the jury verdict, states that

“[n]otice has been electronically mailed to” Hickey at an e-mail address different from the one

currently listed on the docket. But other items on the docket indicate that Hickey was indeed

using the e-mail address to which the notice was sent at that time. For example, Docket No. 180,

filed on Hickey’s behalf just before the judgment, and Docket No. 192, filed by Hickey himself

months after the judgment, both list the e-mail address to which the notice of the judgment was

sent. Pro se parties who obtain a CM/ECF password “are responsible for monitoring their e-mail



                                                  8
accounts, and, upon receipt of notice of an electronic filing, for retrieving the noticed filing.”

Local Rule 5.4(b)(6). Under Federal Civil Rule 5(b)(2)(E), notice is deemed “complete upon

transmission, but is not effective if the serving party learns that it did not reach the person to be

served.” In light of the CM/ECF receipt, Hickey’s continued use of the CM/ECF system to file

case documents, and his continued use of his e-mail address in case filings, Hickey’s statements

in his notice of appeal and relayed by counsel in the opposition to costs are insufficient to put the

Court on notice under Civil Rule (5)(b) and Appellate Rule 4(a)(6)(A) that service did not reach

him. Thus, the Court concludes that Hickey received timely notice of the judgment, complete on

transmission, for the purposes of Rule 4(a)(6)(A).

       B.      Hickey did not file a motion within fourteen days of receiving notice of the
               judgment

       Hickey was hospitalized when the judgment was entered, and may be forgiven for not

checking his email at that time. But even if he files a sworn affidavit that he did not check his

email address within twenty-one days after its entry, and even if the Court accordingly finds

under Rule 4(a)(6) that he did not timely receive notice, he cannot satisfy the second requirement

of Rule 4(a)(6). To satisfy Rule 4(a)(6)(B), the Court must find that he filed a motion within

fourteen days after he received notice, but not later than 180 days after the entry of judgment.

Two filings on Hickey’s behalf were made in the 180 days following entry of the judgment: the

notice of appeal and the opposition to costs. The opposition to costs was filed on November 1,

2011, just over a month after the judgment was entered, and the notice of appeal was filed on

December 28, 2011. [ECF Nos. 188, 190]. But the opposition to costs contains a statement from

counsel that Hickey was unaware of any final appealable order, as well as a statement that

Hickey communicated with counsel by telefax, not e-mail. [ECF No. 188] 1 n.1 (“[H]e believes

no final order has been issued (or received by him) which would start the appeal process.”).

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Indeed, counsel indicated that Hickey “would” seek to extend the appeals briefing schedule if he

became aware of such an order. Id. The Court concludes from this that Hickey still had not

“received notice” of the judgment via e-mail at the time the opposition was filed. Hence, the

opposition could not be construed as seeking to reopen the period to appeal from a judgment of

which Hickey purports to have been unaware. But even if the opposition to costs could be

construed as a motion to reopen the appeal period, based on Hickey’s own statement it was not

filed within fourteen days after Hickey received notice of the entry of the judgment.

       Hickey’s notice of appeal also contains a statement that he was unaware of any final

appealable order. [ECF No. 190] 1 (“Hickey is unaware of any Final Order issued in the case

which will start the running of the [appeals] period.”). Hickey entered this notice on the docket

himself, indicating his ability to access the proceedings in the case. Moreover, the notice of

appeal necessarily indicates Hickey’s awareness of a later-filed order in the case—the very order

he was appealing, which denied his bill of costs and was filed two months after the judgment was

entered. In these circumstances, the Court must conclude that, by this time, Hickey had received

notice of the entry of judgment against him, despite his statement to the contrary. But his

statement to the contrary also precludes this Court from construing his notice of appeal as a

motion to reopen the time to appeal—proclaiming unawareness of any final order cannot be

reconciled with moving to reopen the appeal period for that final order.

       C.      Reopening the appeal period would prejudice Scott

       Finally, even if (1) the opposition to costs or notice of appeal could constitute a formal

motion under Rule 4(a)(6); (2) either filing could be fairly construed as a motion to reopen the

time to appeal; (3) Hickey did not receive notice of the judgment within twenty-one days after it

was entered; and (4) the construed motion was filed within fourteen days after Hickey received



                                                10
notice of the judgment, the Court would not find that any filing satisfied Rule 4(a)(6). For along

with the previously discussed requirements, the Court must also find that no party would be

prejudiced by the reopening of the time to file an appeal. Fed. R. App. P. 4(a)(6)(C). Scott would

be prejudiced if the Court were to now permit Hickey to file a new notice of appeal

encompassing the entire case, rather than just the bills of costs. This action was filed in 2007 and

was tried in 2011, but it stems from a dispute that began in 1998. The jury sagely resolved “this

unseemly and protracted squabble,” [ECF No. 189], by awarding both parties no monetary

recovery. Hickey failed to appeal that resolution timely or properly. Although Hickey is

proceeding pro se, he was represented by counsel when the judgment was entered, and he

himself continued to maintain his law license for at least several months after the judgment was

entered, as evidenced by the payment of his bar dues in December 2011. [ECF No. 192]. He

should not now be permitted to rectify his mistake almost two years later. Scott would have been

well within her rights to interpret the Federal Rules to conclude, following the absence of a

notice of appeal relating to the judgment and, after 180 days, no filing styled as a motion to

extend time or to reopen the appeal time, that Hickey was not appealing the judgment. To now

reverse that settled expectation in this ancient case would unfairly prejudice Scott, and the Court

declines to do so. Accordingly, the Court finds that Hickey did not file anything capable of

construction as motion to reopen the appeal time under Rule 4(a)(6).

                                         CONCLUSION

       For all these reasons, the Court finds that Hickey did not file anything that should be

treated as a motion for an extension of time to appeal under Rule 4(a)(5) or as a motion to reopen

the appeal period under Rule 4(a)(6) for the orders entered in this case prior to November 28,




                                                11
2011. Hence, it is unnecessary to determine whether any such motion should be granted. It is

hereby

         ORDERED that the Clerk of the Court shall promptly transmit a copy of this

Memorandum Opinion and Order to the D.C. Circuit.

         SO ORDERED.



                                                                          /s/
                                                                      JOHN D. BATES
                                                                 United States District Judge
Dated: October 29, 2013




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