Donovan v. Potter , 356 F. App'x 634 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1275
EDWARD G. DONOVAN,
Plaintiff – Appellant,
v.
JOHN E. POTTER, Postmaster General,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cv-00001-BO)
Submitted: November 5, 2009 Decided: December 3, 2009
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Philip Wayne Barton, BARTON & ASSOCIATES, Fayetteville, North
Carolina, for Appellant. Neal Fowler, Steve R. Matheny,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward G. Donovan seeks to appeal the district court’s
order granting John E. Potter summary judgment on Donovan’s
claims brought pursuant to Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006), and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 to 797
(2006), and a subsequent order denying his motion for extension
of time to file an appeal. We affirm in part and dismiss in
part.
When the United States or its officer or agency is a
party to an action, a notice of appeal must be filed no more
than sixty days after the entry of the district court’s final
judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the
district court extends the appeal period under Fed. R. App. P.
4(a)(5), or reopens the appeal period under Fed. R. App. P.
4(a)(6). “[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.” See Bowles v. Russell,
551 U.S. 205, 214 (2007).
The district court’s order granting Potter summary
judgment was entered on the docket on December 10, 2008.
Donovan’s notice of appeal was filed on March 11, 2009, well
beyond the sixty-day appeal period. Although Donovan timely
moved for an extension of time to file an appeal, the district
court denied the motion, finding that Donovan failed to
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establish good cause or excusable neglect as required by Rule
4(a)(5). Upon review, we conclude that the district court did
not abuse its discretion in denying Donovan’s motion. Moreover,
Donovan is not entitled to a reopening of the appellate time
period. See Fed. R. App. P. 4(a)(6). We thus affirm the
district court’s order denying Donovan’s motion for extension of
time to file an appeal, see Diamond v. United States Dist.
Court, 661 F.2d 1198, 1198 (9th Cir. 1981) (recognizing that the
denial of a motion for extension of time to file an appeal
period is an appealable order), and dismiss the remainder of
Donovan’s appeal for lack of jurisdiction. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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