The opinion of the court was delivered by: Douglas Eaton, Magistrate Judge
Pro se plaintiff Stephanie Bethea brought these two lawsuits, alleging that her employer, the U.S. Postal Service, subjected her to unequal terms and conditions of employment and retaliation, on the basis of her psychiatric disability. On May 8, 2003, I issued an opinion dismissing Ms. Bethea's complaints with prejudice because of her failure to prosecute, and because of her failure to comply with Court orders.
In each of these two lawsuits, the Clerk of Court prepared and signed the Judgment, dated May 15 and stamped with a notation that "This document was entered on the docket on 5-16-3." On May 16, the Clerk of Court mailed, to Ms. Bethea, (a) a copy of the Judgment, (b) a cover letter explaining the deadline for filing a notice of appeal, (c) a form for a notice of appeal, and (d) a form for a motion for an extension of time to file a notice of appeal. The Clerk's cover letter stated, in part:
Your attention is directed to Rule 4(a)(1) of the
Federal Rules of Appellate Procedure, which requires
that if you wish to appeal the judgment in your case,
you must file a notice of appeal within '30 days of
the date of entry of the judgment (60 days if the
United States or an officer or agency of the United
States is a party).
If you wish to appeal the judgment but for any
reason you are unable to file your notice of appeal
within the required time, you may make a motion for an
extension of time in accordance with provision of
Fed.R.App.P. 4(a)(5). That rule requires you to show
"excusable neglect" or "good cause" for your failure
to file your notice of appeal within the time
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Any such motion must first be served upon the other
parties and then filed with the Pro Se Office no later
than 60 days from the date of entry of the judgment
(90 days if the United States or an officer or agency
of the United States is a party).
The Clerk enclosed a form for a motion for an extension; the form warned Ms. Bethea (with emphasis in the original):
. . . if you follow this procedure, these forms must
be received in the office of the Clerk of the District
Court no later than 60 days of the date [on] which the
judgment was entered (90 days if the United States or
an officer or agency of the United States is a
The stamp on the bottom of the one-page Judgment clearly showed Ms. Bethea that the Judgment had been entered on May 16. The deadline to file a motion for extension expired 90 days later, on August 14.
On Saturday, August 16, 2003, Ms. Bethea mailed four documents to me, by certified mail. The first two, completed on the forms provided by the Clerk's office, were a "Motion for an Extension of Time to File a Notice of Appeal" and a "Notice of Appeal." Also enclosed was a Disability Certificate signed by Louis P. Re, M.D. on August 14, stating that Ms. Bethea sustained a lumbar sprain "at work on 6-24-03," and was "totally disabled," at least in the sense that she "is unable to return to work." Finally, Ms. Bethea enclosed a one-page typewritten statement dated August 15.
My Chambers received these four documents on August 19. There was no indication that she served them on the Government, even though the May 16 package from the Clerk's office included a form for affirmation of service.
For the reasons discussed below, I deny Ms. Bethea's motion.
Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure provides that:
When the United States or its officer or agency
is a party, the notice of appeal may be filed by
any party within 60 days after the judgment or
order appealed from is entered.
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I issued my opinion dismissing Ms. Bethea's lawsuits on May 8, 2003. In both lawsuits, the Clerk of Court issued the Judgment dated May 15 and entered it on the docket on May 16, 2003. The deadline for a notice of appeal was 60 days after May 16, namely July 15.
Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure gave her an additional 30 days to move for an extension (which might or might not be granted). This Rule has two requirements:
(A) 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.
The extra 30-day grace period ran from July 15, and hence it expired on August 14.
The deadline for filing a Notice of Appeal is "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir. 2003); Rezzonico v. H & R Block, Inc., 182 F.3d 144, 150 (2d Cir. 1999). "If no notice of appeal is filed before the deadline provided by Rule 4(a)(1) (or a new deadline set pursuant to Rule 4(a)(5) or (6)), [the Court of Appeals] lacks jurisdiction to hear the appeal." Silivanch, 333 F.3d at 363. Here, Ms. Bethea mailed the notice of appeal to me on August 16 — two days after the expiration of the 30-day grace period ...