Portnov v. U.S. Department of Justice

Opinion

FILED 3/12/2021 Clerk, U.S. District & Bankruptcy UNITED STATES DISTRICT COURT Court for the District of Columbia FOR THE DISTRICT OF COLUMBIA

ABRAHAM PORTNOV, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:20-cv-01611 (UNA) ) U.S. DEPARTMENT OF JUSTICE, et al., ) ) Defendants. )

MEMORANDUM OPINION

This matter is currently remanded to this Court from the United States Court of Appeals

for the District of Columbia Circuit (“D.C. Circuit”), see Ord. (D.C. Cir. Feb. 8, 2021), ECF No.

8, on a limited basis. Specifically, this Court shall render findings as to (1) whether the District

Court received Plaintiff’s mailed Notice of Appeal before the August 28, 2020 deadline, see Fed.

R. App. P. 4(a)(B)(ii)–(iv), and (2) if the Court determines that the Notice of Appeal was not

received before the deadline, whether Plaintiff’s responses to the D.C. Circuit’s Order to Show

Cause, together with the Notice of Appeal, should be construed as a motion for extension of time

to file a notice of appeal under Fed. R. App. P. 4(a)(5) and, (3) if so, whether the motion should

be granted. Ord. at 1 (emphasis added). The Court need only address the first question, as it finds

Plaintiff’s evidence persuasive that his Notice of Appeal was received prior to the August 28, 2020

deadline.

This matter was dismissed by Memorandum Opinion, ECF No. 4, and Order, ECF No. 5,

on June 29, 2020, and copies of those documents were mailed to the pro se Plaintiff at his address

of record on the same date, see id. On September 10, 2020, the Clerk of Court docketed Plaintiff’s

Notice of Appeal, ECF No. 6. The Notice of Appeal consists collectively of four total documents:

1 (1) a single-sheet template form notice of appeal (“Form Notice”), directed to the District Court

(signed and dated August 5, 2020), id. at 1; (2) an appeal “complaint” directed to the D.C. Circuit

(“Appeal Complaint”) (signed and dated August 5, 2020), id. at 2; (3) an untitled supplemental

pleading (“Untitled Pleading”), directed to the D.C. Circuit (signed and dated August 17, 2020),

id. at 3, and; (4) a single undated envelope, id. at 4. These documents are jointly filed as a single

docket entry. See generally, ECF No. 6. The Form Notice and Appeal Complaint are

concomitantly date-stamped as received by the Clerk on September 3, 2020, id. at 1, and the

Untitled Pleading contains its own date-stamp of September 3, 2020, id. at 3.

On September 11, 2020, the D.C. Circuit issued an Order to Show Cause why the appeal,

seemingly filed beyond the 60-day period provided by see Fed. R. App. P. 4(a)(B)(ii)–(iv), should

not be dismissed as untimely. See Dkt. No. 20-5278 at Show Cause Ord., (D.C. Cir. Sept. 11,

2020). On September 15, 2020, Plaintiff filed a timely Initial Response, see id. at Response

(“Response”), which he then supplemented on September 28, see id. at Response (“Supp. I”), and

October 5, 2020, see id. at Supplement (“Supp. II”).

In these submissions, Plaintiff argues that he mailed the Form Notice and Appeal

Complaint together on August 5, 2020 and then later, on August 17, 2020, he mailed the Untitled

Pleading. See Response at 1; Supp. I at 1; Supp. II at 2. As proof, he attaches receipts from the

Canadian Postal Service, which corroborate this contention. See Supp. I at 2. He deduces that the

August 5th mailing must have been timely received by the District Court but, for some reason,

remained undocketed, and once the Court received the August 17th supplement, the Clerk must

have docketed both sets of submissions all together, and mistakenly attributed the latter receipt

date to all of the submissions. See id. at 1; Response at 1; Supp. II at 2. He also contends that

there should exist somewhere in the courthouse a second envelope, which would prove that he

2 submitted his Form Notice and Appeal Complaint both separately and earlier than the latter

submission. See Supp. I at 1; Supp. II at 2.

The Court currently has no record of this second envelope and, at this juncture, cannot

determine with absolute certainty that the Form Notice and Appeal Complaint were received in

advance of the Untitled Pleading. Notwithstanding, because Plaintiff has undoubtedly shown that

he did, in fact, mail his submissions on different dates, and most importantly, that he mailed the

Form Notice on August 5, 2020, see Response I at 1; Supp. I at 1–2; Supp. II at 2, well in advance

of his appeal deadline, all which is substantially convincing. The Court also finds that there was

most likely some confusion regarding the Clerk’s dates of receipt, inadvertently caused by

Plaintiff’s successive filings, and his apparent attempts to also submit scanned copies of myriad

submissions to the Clerk by email, see Response I at 1; Supp. I at 1.

For all of these reasons, the Court concludes that Plaintiff’s Notice of Appeal, or his Form

Notice (and Appeal Complaint), was timely received before the August 28, 2020 deadline, and it

recommends that it be construed accordingly.

__________/s/_____________ Date: March 12, 2021 AMIT P. MEHTA United States District Judge