American Civil Liberties Union v. Central Intelligence Agency

Opinion

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.

1 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). 2 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

1 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. 3 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

4 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 at

313¬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)

5 (“[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.

6 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