Laoye v. United States Department of Homeland Security ( 2010 )

BLD-287 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-3400
AMANDA C. LAOYE; AKINTOYE O. LAOYE,
Appellants
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
ASSISTANT SECRETARY, UNITED STATES OF HOMELAND SECURITY,
IMMIGRATION AND CUSTOMS ENFORCEMENT;
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S.
DEPARTMENT OF HOMELAND SECURITY; JOHN DOE 1-2
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3-09-cv-01990)
District Judge: Honorable Mary L. Cooper
Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 10, 2010
Before: RENDELL, CHAGARES and VANASKIE, Circuit Judges
(Opinion filed: October 4, 2010)
OPINION
PER CURIAM
Pro se appellants, Amanda and Akintoye Laoye, are husband and wife. On April
28, 2009, appellants filed a complaint in the United States District Court of the District of
New Jersey, followed by an amended complaint a week later. In their complaint, the
Laoyes asserted that the defendants violated their constitutional rights during an
immigration investigation and that Amanda Laoye was assaulted during Akintoye’s
apprehension on February 11, 2004. The defendants responded to the Laoyes’ complaint
by filing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). Defendants
argued that the Laoyes’ complaint was barred by the statute of limitations and insufficient
to state a claim.
The District Court construed the Laoyes’ complaint as one filed pursuant to Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and, in a Memorandum
Opinion and Order entered on March 16, 2010, it granted defendants’ motion and
dismissed the amended complaint. The District Court concluded that the Laoyes’ Bivens
complaint was filed beyond New Jersey’s two year personal injury statute of limitations.
The District Court also concluded that, even if the Laoyes’ claim were considered a tort
claim against the federal government under the Federal Torts Claims Act, 28 U.S.C. §
1346(b), such a claim would be time barred under 28 U.S.C. § 2401(b), because they did
not file an administrative claim within the two year statute of limitations. The District
Court further denied Laoyes’ request for a Cease and Desist Order seeking to preclude
adverse immigration action from being taken against Akintoye Laoye during the
pendency of their civil proceeding.
The Laoyes did not immediately seek review of the District Court’s decision.
Rather, they waited more than three months and then sought leave to have the appeal
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period reopened in a motion filed on June 28, 2010. In that motion, the Laoyes asserted
that their notice of appeal was delayed due to “severe health issues” which were beyond
their control – namely, an assault upon Akintoye which occurred on January 31, 2010.
The District Court denied the Laoyes’ motion in an order entered on July 7, 2010. The
District Court concluded that the assault on Akintoye and resulting injury did not
constitute a showing of “excusable neglect or good cause” as required by Fed. R. App. P.
4(a)(5)(A)(ii), in light of the Laoyes’ participation in the underlying civil action post-
dating the assault. Of particular relevance to the court’s determination was the filing of
appellants’ response to the defendants’ motion to dismiss on March 4, 2010, and the fact
that appellants successfully sought an extension of time to file that response by
submitting a motion on February 9, 2010. The District Court further noted that the
Laoyes’ reopen motion was filed beyond the period permitted by Rule 4(a)(5)(A)(i) in
any event. The Laoyes thereafter filed a notice of appeal on August 10, 2010.
We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291. The
scope of the appeal, however, is limited to review of the District Court’s order denying
the Laoyes’ Rule 4(a)(5) motion insofar as their notice of appeal was not filed within
sixty days of the entry of the District Court’s order dismissing their amended complaint.
See Fed. R. App. P. 4(a)(1)(B); Bowles v. Russell, 551 U.S. 205, 214 (2007). Having
carefully reviewed the record in this case, we do not hesitate to conclude that the District
Court committed no abuse of discretion in denying appellants’ motion. See Pedereaux v.
Doe, 767 F.2d 50, 52 (3d Cir. 1985).
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As the District Court correctly determined, it was without authority to grant the
Laoyes’ reopen request insofar as the motion had been filed beyond the period permitted
by Rule 4(a)(5)(A)(i). The Laoyes’ reopen motion was filed on June 28, 2010. However,
to be timely, their motion had to have been filed on or before June 14, 2010. While it
appears that the Laoyes believe they had 180 days to file a timely motion, that provision
of Rule 4(a) is simply not applicable to their situation as there has been no claim that they
did not receive notice of the District Court’s dismissal order. See Fed. R. App. P. 4(a)(6).
Moreover, even if the Laoyes’ Rule 4(a)(5) motion had been timely filed, the District
Court certainly cannot be faulted for determining that they failed to demonstrate
excusable neglect or good cause for not filing a timely notice of appeal when they were
capable of submitting at least two other timely filings during the same period.
Accordingly, because the District Court did not abuse its discretion and no
substantial question is presented by this appeal, we will summarily affirm that court’s
order denying the Laoyes’ Rule 4(a)(5) motion. See Third Circuit LAR 27.4 and I.O.P.
10.6. Finally, because a request to reopen the appeal period is not an appropriate one to
ask of an appellate court, see Fed. R. App. P. 26(b), we will deny the Laoyes’ motion
filed in this Court.
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