United States District Court, N.D. Texas, Dallas Division
MARION DAVID HAGER BOP Register No. 54182-380, Petitioner,
UNDERWOOD, Warden, Respondent.
MEMORANDUM OPINION AND ORDER GRANTING CONSTRUED
MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL
L. HORAN UNITED STATES MAGISTRATE JUDGE
Marion David Hager, a federal prisoner convicted in the
Western District of Texas but incarcerated at a BOP facility
in this district, filed a pro se 28 U.S.C. §
2241 habeas petition challenging the relevant conduct used to
determine his sentence under 28 U.S.C. § 2255(e), the
“savings clause” of Section 2255. See
Dkt. Nos. 3, 4, & 5. The Court summarily dismissed his
petition for lack of subject matter jurisdiction,
see Dkt. Nos. 6, 11, & 12, and denied
Hager's request for reconsideration, see Dkt.
Nos. 14 & 15. Hager then appealed. See Dkt. No.
15, 2019, the United States Court of Appeals for the Fifth
Circuit remanded this action to allow the district court to
rule on Hager's construed motion under Federal Rule of
Appellate Procedure 4(a)(5)(A) to extend the time to file a
notice of appeal. See Dkt. No. 21. And Senior United
States District Judge Sidney A. Fitzwater referred the motion
to the undersigned United States magistrate judge under 28
U.S.C. § 636(b) for, as may be appropriate, disposition
or findings and recommendation. See Dkt. No. 22.
Standards and Analysis
Fifth Circuit's remand order sets up the issue now before
district court entered its final judgment on May 1, 2018. Any
notice of appeal had to be filed within 60 days. See
28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B).
Hager's “petition to reconsider” did not
extend this time because it was filed more than 28 days after
the district court issued its judgment. See Fed. R.
App. P. 4(a)(4)(A); Fed.R.Civ.P. 59(d)-(e). Because the
60-day “appeal filing deadline [is] prescribed by
statute, ” it affects [appellate] jurisdiction.
Hamer v. Neighborhood Hous. Servs. of Chi., 138
S.Ct. 13, 16 (2017) (citing Bowles v. Russell, 551
U.S. 205, 210-13 (2007)).
notice of appeal was dated July 9, 2018, and filed July 13,
2018. It was therefore untimely. But “[w]e construe
[Hager's] notice of appeal, which asserted reasons for
his untimely filing, as a motion under Federal Rule of
Appellate Procedure 4(a)(5)(A)” to extend the time to
file a notice of appeal. Kramer v. Castaneda, 599
Fed.Appx. 174, 174 (5th Cir. 2015).
Dkt. No. 21 at 2 (footnote omitted).
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) ... that party
shows excusable neglect or good cause.” Fed. R. App. P.
good cause and excusable neglect standards have
‘different domains.' They are not interchangeable,
and one is not inclusive of the other.” Fed. R. App. P.
4 advisory committee's note, 2002 Amendments, Subdivision
(a)(5)(A)(ii) (quoting Lorenzen v. Employees Ret.
Plan, 896 F.2d 228, 232 (7th Cir. 1990)). “A more
structured and exacting analysis is appropriate where a party
seeks protection from his own negligence; where a litigant is
the victim of unforeseeable circumstances, however, justice
permits greater discretion.” Price v. General Cable
Indus., Inc., 466 F.Supp.2d 610, 613 (W.D. Penn. 2006).
And the Rule's subsequent addition of a good-cause option
“‘expand[ed] to some extent the standard for the
grant of an extension of time,' showing that excusable
neglect should not be equated with ‘good cause,'
much less with the broader concept of
‘cause.'” In re Heartland Steel,
Inc., No. 1:03-CV-802-DFH, 2003 WL 23100035, at *3 n.1
(S.D. Ind. Dec. 16, 2003) (citation omitted).
good cause standard” “is applicable ‘in
situations in which there is no fault - excusable or
otherwise.' In those situations, an extension of time is
necessary because of something that was entirely beyond the
control of the moving party, such as where ‘the Postal
Service fails to deliver a notice of appeal.'”
Tuesno v. Jackson, No. 5:08-cv-302(DCB)(JMR), 2013
WL 685928, at *4 (S.D.Miss. Feb. 25, 2013) (quoting Fed. R.
App. P. 4 advisory committee's note, 2002 Amendments,
court's determination as to excusable neglect
is at bottom an equitable one, taking account all of the
relevant circumstances surrounding the party's omission.
These include ... the danger of prejudice ..., the length of
the delay and its potential impact on judicial proceedings,
the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant
acted in good faith.
Stotter v. Univ. of Tex. at San Antonio, 508 F.3d
812, 820 (5th Cir. 2007) (quoting Midwest Employers Cas.
Co. v. Williams, 161 F.3d 877, 879 (5th Cir. 1998)
(quoting, in turn, Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. ...