Williams v. Washington Convention Center Authority

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided April 6, 2007

No. 05-7170

ENOCH J. WILLIAMS,

APPELLANT

v.

WASHINGTON CONVENTION CENTER AUTHORITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01806)

Enoch J. Williams, appearing pro se, was on the brief for

appellant.

David B. Stratton and Deborah M. Whelihan were on the

brief for appellee.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

PER CURIAM: Enoch J. Williams, acting pro se, seeks to

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appeal a decision by the district court. However, a series of

errors in the district court led him to file his notice of appeal

outside the deadlines prescribed by the federal rules,

jeopardizing his quest to pursue the merits of his age

discrimination and retaliation claims in this court. Under

Moore v. South Carolina Labor Board, 100 F.3d 162 (D.C. Cir.

1996) (per curiam), a misreading of the federal rules of appellate

procedure by the district court can ensnare even a pro se

appellant who follows the district court’s instructions diligently

if the result is an untimely notice of appeal. Accordingly, we

must dismiss Williams’ appeal.

I.

On August 28, 2003, Enoch J. Williams filed a complaint,

through counsel, alleging that the Washington Convention

Center Authority had engaged in age discrimination and

retaliation in violation of Title VII, the Age Discrimination in

Employment Act, and the D.C. Human Rights Act. In late 2004,

Williams’ counsel, a solo practitioner, died. On November 10

of that year, Williams filed a “Notice to Court” that reads in full:

I, Enoch J. Williams am requesting that the United

States District Court For The District of Columbia send

all correspondence in the above case to me until further

notice. This motion is requested due to the death of my

attorney, Janet Cooper.

Although this notice was docketed and filed, the address on the

first page of the case file was not changed. Consequently, when

summary judgment was entered in favor of the Convention

Center on March 15, 2005, and an order issued that same day

dismissing the case with prejudice, Williams was not notified by

the district court.

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According to Williams, he learned of the dismissal of his

case more than two months later, on May 23, 2005. In the

course of searching for new counsel, a legal assistant to a private

attorney checked the latest docket sheet and found the final

judgment order. A courtesy copy of the district court’s

memorandum opinion was forwarded to him by “the interested

attorneys.” The next day, Williams went to the district court and

was directed to a member of the clerk’s office. On appeal,

Williams claims that he spoke to a clerk’s office employee, who

updated the docket so that future communications would be sent

to Williams, and that after going upstairs to consult a judge, the

clerk’s office employee told Williams that he had thirty days to

file a motion in the district court to pursue an appeal.

Twenty-eight days later, on June 21, 2005, Williams filed

a Motion to File an Appeal Out of Time and Notice of Appeal.

Over the Convention Center’s opposition, the district court

granted the motion in part, ordering Williams to “file a Notice

of Appeal within thirty days of the date of this order.” The order

was dated October 31, 2005, and Williams filed his notice of

appeal on November 29, 2005.

II.

Under ordinary circumstances, an appeal must be noticed no

more than thirty days after judgment is entered. FED. R. APP. P.

4(a)(1); see FED. R. CIV. P. 58(a). The district court may extend

this deadline upon a showing of good cause, but only for an

additional thirty days. FED. R. APP. P. 4(a)(5). Even this

extended period had expired by the time Williams learned of the

dismissal of his case.

For cases where the prospective appellant is not notified of

the judgment, the federal rules provide that the district court

may reopen the time to appeal for fourteen days when a party

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entitled to notice, who did not receive the notice within twenty-

one days after entry, files a motion within 180 days or seven

days after receiving notice, whichever is earlier, so long as no

party will be prejudiced. FED. R. APP. P. 4(a)(6) (2005)

(amended Dec. 1, 2005). What constitutes “notice” has since

been clarified by an amendment to Rule 4(a)(6). But under the

rule as it stood during the times relevant to this appeal, Williams

received notice, at the latest, on May 24, 2005, when the district

court clerk’s office confirmed the dismissal of his case with

prejudice. See Benavides v. Bureau of Prisons, 79 F.3d 1211,

1214-15 (D.C. Cir. 1996). Thus, Williams was required to file

a motion by June 3, 2005; by waiting eighteen more days, he

was too late.

The difficulty lies in the fact that Williams claims to have

acted in accordance with guidance he received from the district

court. First, after Williams learned that the district court had

failed to notify him of the judgment dismissing his case, he

alleges that an employee in the clerk’s office, who claimed to be

relaying a message from a district court judge, informed him

that he had thirty days to file his appeal. A reasonable litigant,

especially one who is proceeding pro se after notifying the

district court of the death of his attorney, would assume that the

district court itself should be able to correct its own error in

failing to notify him of the dismissal of his case by assuring the

litigant that he had thirty days to appeal. Williams would not

reasonably have second-guessed this assurance. Second, when

the district court granted his motion to late-file his notice of

appeal, he was again informed by the district court that he had

thirty days to act. Neither the clerk’s office employee nor the

district court gave Williams advice that comports with the

federal rules, as Rule 4 limits the reopening to fourteen days.

The Supreme Court has recognized a narrow exception to

the strict deadlines of Rule 4. The “unique circumstances”

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doctrine was introduced in Harris Truck Lines, Inc. v. Cherry

Meat Packers, Inc., 371 U.S. 215 (1962) (per curiam), where the

Court held that a litigant does not forfeit his appeal when the

district court errantly grants a motion for an extension of time

before the original deadline and the appellant relies upon that

extension to his detriment, see id. at 217; see also Thompson v.

INS, 375 U.S. 384, 398-99 (1964). The courts of appeals,

including this court, see, e.g., Aviation Enters. v. Orr, 716 F.2d

1403, 1406 n.25 (D.C. Cir. 1983); Webb v. Dep’t of Health &

Hum. Servs., 696 F.2d 101, 106 (D.C. Cir. 1982), gradually

widened this exception to encompass other errors in the district

court. Then, in 1989, the Supreme Court held in Osterneck v.

Ernst & Whinney, 489 U.S. 169 (1989), that the unique

circumstances doctrine did not apply where the court had merely

accepted and processed an untimely notice of appeal. The

Supreme Court instructed that the doctrine extends “only where

a party has performed an act which, if properly done, would

postpone the deadline for filing his appeal and has received

specific assurance by a judicial officer that this act has been

properly done.” Id. at 164.

In 1996, this court interpreted Osterneck. In Moore, a pro

se litigant contended that he did not file his appeal within thirty

days because a staff person in the district court clerk’s office had

informed him that he had sixty days to file his appeal. 100 F.3d

at 163. Taking this allegation as true, the court determined that

the unique circumstances exception “turns on a party’s reliance

on a formal court order or ruling” and that the clerk’s assurances

could not “fairly be characterized as official judicial action.” Id.

at 164. The court stated: “[W]e conclude that the unique

circumstances exception applies only where a party who could

have filed a timely notice of appeal is lulled into missing the

deadline by a formal court order or ruling, containing specific

assurances that action which extends or postpones the deadline

has properly been taken . . . .” Id. at 162.

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Even taking Williams’ allegations as true, notwithstanding

his good-faith attempt to appeal, none of his communications

with the district court within the seven days allowed by Rule

4(a)(6) can be construed as official judicial action. See Moore,

100 F.3d at 164; see also United States v. Marquez, 291 F.3d 23,

28 (D.C. Cir. 2002). Nor can he succeed on the basis of the

district court’s order of October 31, 2005, which purported to

grant Williams’ pro se motion to reopen the time to notice his

appeal. That order came after the appeal had already been

forfeited, and a court may not enlarge the time limits for filing

the notice of appeal except as authorized by the rules. See

Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-15 (1988);

FED. R. APP. P. 26(b)(1). As such, following Moore, we must

dismiss the appeal.

This court acknowledged in Moore that “[i]t is in the nature

of jurisdictional limits on appeals that occasionally a meritorious

appeal will be lost through inadvertence or from the would-be

appellant’s being misinformed.” Id. For better or for worse, this

is not such a case. Even were we able to construe the unique

circumstances doctrine to encompass Williams’ case, this court

would be unable to offer relief on the merits to Williams.

Williams has offered nothing to demonstrate error by the district

court, which ruled that he failed to create an inference of age

discrimination or to allege facts that could either rebut or show

pretext in the Convention Center’s proffer of a legitimate, non-

retaliatory explanation for its actions. See Broderick v.

Donaldson, 437 F.3d 1226, 1231-32 (D.C. Cir. 2006); Brown v.

Brody, 199 F.3d 446, 452 (D.C. Cir. 1999).

Accordingly, we dismiss the appeal for lack of jurisdiction.