American Civil Liberties Union v. Central Intelligence Agency ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CIVIL LIBERTIES UNION,
et al.,
Plaintiffs,
v. No. 16-cv-1256-EGS-ZMF
CENTRAL INTELLIGENCE AGENCY, et
al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion to Extend Time to File Notice of Appeal.
See Pls.’ Mot. to Extend Time for Filing Notice of Appeal (“Pls.’ Mot.”), ECF No. 73. Upon
consideration of the Motion, the response and reply thereto, it is ORDERED that the Plaintiffs’
Motion is DENIED.
I. BACKGROUND
This case arises out of Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests
Plaintiffs, the American Civil Liberties Union and American Civil Liberties Union Foundation
(collectively “Plaintiffs”), made to 19 federal agencies, including the Central Intelligence Agency
(“CIA”) (“Defendants”). See Compl. for Inj. Relief, ECF No. 1. After Plaintiffs stipulated to the
dismissal of 16 federal agencies, the only issue that remained was Defendants’ redaction of the
names of current and/or former CIA employees in documents they produced. See Mem. Op. 1,
ECF No. 66. On November 24, 2021, Judge Sullivan issued a memorandum opinion granting in
part Defendants’ motion for summary judgment. See Mem. Op., ECF No. 66.
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On December 9, 2021, Judge Sullivan entered a final judgment in favor of Defendants. See
Final J., ECF No. 71. Also on December 9, 2021, Judge Sullivan granted Plaintiffs’ motion for
extension of time to request attorney’s fees, giving Plaintiffs until February 21, 2022. See Min.
Order (Dec. 9, 2021).
On February 7, 2022, the deadline to file an appeal as of right passed. See Fed. R. App. P.
4(a)(1)(B)(ii); Pls.’ Mot. 1; Def. CIA’s Opp’n to Pl.’s Mot. to Extend Time for Filing Notice of
Appeal (“Def.’s Opp’n”) 2, ECF No. 74. On February 11, 2022, Plaintiffs filed the pending motion,
seeking an extension of time to appeal Judge Sullivan’s decision based on a forthcoming Motion
for Attorney Fees under Federal Rule of Civil Procedure Rule 58(e). See Pls.’ Mot. On February
14, 2022, Defendants filed a memorandum in opposition. See Def.’s Opp’n.
On February 22, 2022, Plaintiffs filed a timely Motion for Attorney’s Fees. See Pls.’ Mot.
for Att’y’s Fees and Costs, ECF No. 76. The parties later settled that dispute. See Notice of
Settlement of Pls.’ Mot. for Fees, ECF No. 78.
On March 1, 2022, Judge Sullivan referred Plaintiffs’ motion to extend the time to file a
notice of appeal to the undersigned for an order pursuant to Local Civil Rule 72.2(a).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 58(e) holds that the entry of judgment may not be delayed
except
if a timely motion for attorney’s fees is made under Rule 54(d)(2),
the court may act before a notice of appeal has been filed and
become effective to order that the motion have the same effect under
Federal Rule of Appellate Procedure 4(a)(4) as a timely motion
under Rule 59.
Fed. R. Civ. P. 58(e) (emphasis added). For a motion for attorney’s fees to be timely under Rule
54(d)(2), it must be filed no later than 14 days after the entry of judgment, in addition to meeting
several other procedural requirements. See Fed. R. Civ. P. 54(d)(2)(B)(i)–(iv).
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Federal Rule of Appellate Procedure 4(a)(4)(A)(iii) holds that if a party files in the district
court1 a motion for attorney’s fees under Rule 54, and if the district court extends the time to appeal
under Rule 58 “and does so within the time allowed by those rules,” then “the time to file an appeal
runs for all parties from the entry of the order disposing of the last such remaining motion.” Fed.
R. App. P. 4(a)(4)(A) (emphasis added). In other words, Appellate Rule 4(a)(4)(A)(iii) interacts
with Rules 54, 58, and 59 of the Rules of Civil Procedure to allow a timely motion for attorney’s
fees to delay the appeal deadline. See Fed. R. App. P. 4(a)(4)(A)(iii). Five of the six motions under
Rule 4(a)(4)(A) that extend the time to file a notice of appeal do so automatically. See Fed. R. App.
P. 4(a)(4)(A)(i)–(vi); Pls.’ Reply in Supp. of Mot. to Extend Time for Filing Notice of Appeal
(“Pls.’ Reply”) 2, ECF No. 75. The one that does not—a Rule 54 motion for attorney’s fees—
extends the deadline subject to the discretion of the court under Rule 58. See Fed. R. App. P.
4(a)(4)(A)(iii).
III. ANALYSIS
Plaintiffs ask if a motion under Rule 58(e) to extend the time for filing a notice of appeal
is timely if it is made after the expiration of the default appeal period but before the deadline for
filing a motion for attorney’s fees. See Pls.’ Reply 1. It is not for three reasons.
First, the plain text of Rule 58(e) forecloses Plaintiffs’ request. In addition to requiring a
timely motion for attorney’s fees under Rule 54(d)(2), Rule 58(e) requires that the court act “before
a notice of appeal has been filed and become effective.” Fed. R. Civ. P. 58(e). Thus, there must
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A district court may enter an order tolling the appeal period based on an anticipated motion for
attorney’s fees. Heck v. Triche, 775 F.3d 265, 275 (5th Cir. 2014). The court may only do so,
however, “before a party has filed a notice of appeal and before the time to notice an appeal has
expired.” Id. (citing Burnley v. City of San Antonio, 470 F.3d 189, 200 (5th Cir. 2006)). Because
the Plaintiffs did not file their Rule 58(e) motion prior to the expiration of the default appeal period
on February 7, 2022, the Court may not grant the pending motion.
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exist the possibility “that a notice of appeal from the judgment could become effective.” Mendes
Junior Int’l Co. v. Banco de Brasil, S.A., 215 F.3d 306, 313 (2d Cir. 2000). As the Second Circuit
concluded, the text of Rule 58(e) plainly implies that it must be possible for the event the order “is
required to precede” to “validly occur.” Id. If the appeal deadline has expired, then it is
“impossible” for a court to issue the extension order prior to the notice of appeal becoming
effective as required by Rule 58(e). Robinson v. City of Harvey, 489 F.3d 864, 869 (7th Cir. 2007)
(citing Mendes, 215 F.3d at 313). Therefore, “while Rule 58(e) authorizes a court to delay the
clock for filing the notice of appeal, a court can only delay the clock when there is time left on it.”
Del Amo v. Baccash, 2008 WL 5179022, at *2 (C.D. Cal. Dec. 9, 2008). Indeed, multiple courts
have followed Mendes and come to this conclusion. See, e.g., Burnley, 470 F.3d at 199 (“[W]hen
the merits judgment has already become final and unappealable, a mere delay of that judgment is
no longer possible, and the court lacks any authority under FRAP 4(a)(4)(iii) and FRCP 58(c)(2)
[predecessor to Rule 58(e)] to modify the finality or the effect of the merits judgment.”); Nutrition
Distribution LLC v. IronMag Labs, LLC, 978 F.3d 1068, 1074 (9th Cir. 2020) (rejecting an
extension of the appeal deadline when appellant “did not file a motion under Rule 58(e)” within
the default appeal period); Nasser v. WhitePages, Inc., 2014 WL 3058570, at *10 (W.D. Va. 2014)
(“[N]othing in the rules suggests that a district court may use a Rule 58(e) order to give a second
chance to a party who missed the time to appeal under Appellate Rule 4(a)(1).”); Elec. Priv. Info.
Ctr. v. U.S. Dep't of Homeland Sec., 811 F. Supp. 2d 216, 225 n.2 (D.D.C. 2011) (noting that “Rule
58(e) cannot be invoked to extend the appeal period once the appeal period has run”). Plaintiffs
have provided no authority to the contrary. See Pls.’ Reply 4.
Second, the portion of Rule 58(e) giving district courts discretion to delay the appeal
deadline was intended “to increase judicial efficiency by allowing an appeal from a decision on
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attorneys’ fees to be coordinated with the appeal from the judgment.” Mendes, 215 F.3d at 313;
see also Burnley, 470 F.3d at 199. And the goal of judicial efficiency “would be undermined if
58(e) could be used to ‘resuscitate an expired right to appeal.’” Donut Joe’s, Inc. v. Interveston
Food Services, LLC, 131 F. Supp. 3d 1277, 1280 (N.D. Ala. 2015) (quoting Mendes, 215 F.3d at313¬14). “Therefore, when [] a delay cannot help attain th[e] purpose [of allowing appeals from
both the merits judgment and the fee judgment to be taken at the same time], the court has no
reason or authority to issue such an order.” Burnley, 470 F.3d at 199. Again, Plaintiffs’ contention
to the contrary lacks support. See Pls.’ Reply 5.
Third, allowing for indeterminate filing periods, as would be the result urged by Plaintiffs,
“would subvert the ‘certainty and stability which have hitherto been considered of first importance
in the appellate practice of the federal courts.’” Mendes, 215 F.3d at 314 (quoting Hill v. Hawes,
320 U.S. 520, 524 (1944) (Stone, C.J., dissenting)). “If a district court entertaining a fee motion
could revive an expired right to appeal with a Rule 58(e) order at any time, ‘the prevailing party
would have no assurance, no matter how long its fee motion remained pending, that the losing
party’s failure to file a notice of appeal within the time allowed made the judgment impervious to
appeal.’” Nasser, 2014 WL 3058570, at *9 (quoting Mendes, 215 F.3d at 314¬15). “Moreover,
because district courts have authority to extend the time to file a timely attorney fee motion under
Rule 54(d)(2)(B), a fee motion filed months after an un-appealed final judgment could threaten the
finality of that judgment.” Id. (citing Mendes, 215 F.3d at 315).
Plaintiffs’ appeals to judicial efficiency, finality, and lack of prejudice ignore that the rules
preclude their appeal. See Pls.’ Mot. 2; Pls.’ Reply 5¬7. Filing a timely notice of appeal is
“mandatory and jurisdictional.” Browder v. Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting
United States v. Robinson, 361 U.S. 220, 229 (1960); Bowles v. Russell, 551 U.S. 205, 214 (2007)
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(“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement” without
“equitable exceptions[.]”). “[T]he power of the federal courts to extend the time limits on the
invocation of appellate jurisdiction is severely circumscribed” by the Federal Rules of Civil
Procedure and the Federal Rules of Appellate Procedure. Del Amo, 2008 WL 5179022, at *1
(quoting Mendes, 215 F.3d at 312). Plaintiffs’ contentions for ignoring such rules “are policy
arguments for rewriting the Federal Rules, something the Court is in no position to do.” Sack v.
Cent. Intel. Agency, 2015 WL 5063268, at *3 (D.D.C. Aug. 26, 2015). Moreover, Plaintiffs’ policy
arguments are unavailing. Allowing for the result urged by Plaintiffs would harm judicial
efficiency and finality for the above-described reasons. Id. at *2. Moreover, “[e]xtending the time
for appeal under Rule 4(a)(4)(A)(iii) after a party had failed to notice an appeal or request an
extension of time during the initial thirty day period would effectively permit an end-run around
Rule 4(a)(5)’s requirement that the party seeking the extension show good cause or excusable
neglect.” Nasser, 2014 WL 3058570, at *8.
IV. CONCLUSION
February 7, 2022 was a fixed point in time—a moment “in the space-time continuum at
which events were set in stone and could never, ever be changed, no matter what, with dire
consequences if such a thing happened.” See Fixed Point in Time, TARDIS DATA CORE: THE
DOCTOR WHO WIKI, https://tardis.fandom.com/wiki/Fixed_point_in_time (last updated Sept. 23,
2022). How does the Court know this was fixed point? “I know when I can [change deadlines], I
know when I can’t.” Doctor Who: Dark Water (BBC One television broadcast Nov. 1, 2014). This
Court lost the ability—either jurisdictionally or in its discretion—to allow an appeal to persist after
the fixed point.
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V. REVIEW BY THE DISTRICT COURT
This is a final order issued pursuant to Local Rule 72.2. See LCvR 72.2. The parties are
hereby advised that, under the provisions of Local Rule 72.2(b) of the United States District Court
for the District of Columbia, any party who objects to this Order must file a written objection
thereto with the Clerk of this Court within 14 days of the party's receipt of this Order. See LCvR
72.2(b). When considering an objection, the District Judge will determine whether this Order is
clearly erroneous or contrary to law. See LCvR 72.2(c).
Zia M. Faruqui
2022.09.28
Date: September 28, 2022 15:16:07 -04'00'
___________________________________
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE
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