from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:17-cv-10815-Denise
Page Hood, District Judge.
Before: KEITH, COOK, and THAPAR, Circuit Judges.
Martin, proceeding pro se, filed a late notice of appeal. In
response to a show cause order, he claims that he did not
receive timely notice of the underlying judgment. But Federal
Rule of Appellate Procedure 4(a)(6) requires Martin to seek
relief in the district court. He did not. We therefore lack
jurisdiction over his appeal.
losing party in a civil case has a right to appeal, but the
right does not last forever. Federal Rule of Appellate
Procedure 4(a) and its statutory counterpart, 28 U.S.C.
§ 2107, set out a strict timetable. Bowles v.
Russell, 551 U.S. 205, 214 (2007) ("[T]he timely
filing of a notice of appeal in a civil case is a
jurisdictional requirement."). As a baseline, the losing
party has thirty days to file a notice of appeal after entry
of an adverse judgment. Fed. R. App. P. 4(a)(1)(A);
accord 28 U.S.C. § 2107(a). There are only two
circumstances in which the party can move the district court
for more time. First, it can move for an extension under Rule
4(a)(5) based on "excludable neglect or good
cause." Fed. R. App. P. 4(a)(5); accord 28
U.S.C. § 2107(c). Or alternatively, it can move to
reopen the time to file an appeal under Rule 4(a)(6) if it
did not receive proper notice of the underlying judgment.
Fed. R. App. 4(a)(6); accord 28 U.S.C. §
options for extending the time to file an appeal require a
"motion" in which the losing party asks the
district court for more time. Fed. R. App. P. 4(a)(5)(A)(ii),
4(a)(6)(B); accord 28 U.S.C. § 2107(c). This
"motion" is not the same thing as the
"notice" a party must file to appeal.
Compare Fed. R. App. P. 4(a)(1)(A), and 28
U.S.C. § 2107(a), with Fed R. App. P.
4(a)(5)(A)(ii), 4(a)(6)(B), and 28 U.S.C. §
2107(c). And the rulemakers did not vest the district court
with power to extend time without a motion in civil cases,
despite empowering it to do so in criminal appeals. Fed. R.
App. P. 4(b)(4) (permitting extension of time to file an
appeal in a criminal case "with or without motion and
notice"). Thus, both the text and structure of Rule 4(a)
and 28 U.S.C. § 2107 provide that if a losing party
wants more time to file an appeal, it must file a motion in
the district court asking for more time.
notice of appeal and a motion are two different things. So,
it follows that merely filing a notice of appeal does not
amount to a motion for more time to file an appeal. This
court has held as much with regard to Rule 4(a)(5). Pryor
v. Marshall, 711 F.2d 63, 64-65 (6th Cir. 1983). In
fact, every circuit to have considered the issue has held
that a notice of appeal does not serve as a
"motion" for purposes of Rule 4(a)(5). 16A Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3950.3 n.54 (4th ed. 2017) (collecting
case presents the question whether there is any reason to
treat Rule 4(a)(6) differently. And we see none. Like Rule
4(a)(5), the text of the rule requires a motion, and that
text controls. Here, Martin did not move the district court
to reopen the time to file an appeal. Instead, he simply
filed a notice of appeal. Under Rule 4(a)(6), we cannot
construe his notice of appeal as a motion to reopen his time
to appeal. His appeal must therefore be dismissed.
holding, we join with the well-reasoned decision of the Third
Circuit in Poole v. Family Court of New Castle
County, 368 F.3d 263 (3d Cir. 2004). There, the court
concluded that it was without power to construe a notice of
appeal as a motion to reopen the time to file an appeal, even
though, as here, a pro se litigant had filed the notice.
Id. at 269. In reaching this conclusion, the Third
Circuit properly rejected the reasoning of circuits that have
held otherwise. See Sanders v. United States, 113
F.3d 184, 186-87 (11th Cir. 1997); see also United States
v. Withers, 638 F.3d 1055, 1061 (9th Cir. 2011);
Ogden v. San Juan Cty., 32 F.3d 452, 454 (10th Cir.
1994). As the Third Circuit explained, the text's
instructions to file motions apply equally in both
circumstances. Poole, 368 F.3d at 267-68. Nor is
there any meaningful difference between the groups of
potential appellants that might seek relief under Rules
4(a)(5) and 4(a)(6), especially in light of the rules'
similar language. Id. at 268. Moreover, the fact
that Martin is pro se does not excuse him from Rule
4(a)(6)'s plain instructions, particularly where there is
no exception for pro se litigants under Rule 4(a)(5).
Id. at 268-69; see McNeil v. United States,
508 U.S. 106, 113 (1993) ("[W]e have never suggested
that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel."). And finally, Martin has not
attributed his delay in appealing to any misconduct by
officials at the institution where he is incarcerated.
See Poole, 368 F.3d at 269. Were such circumstances
to exist, we are confident that, as the Third Circuit
recognized, "we have the tools to ensure that the right
to appeal is not defeated." Id.
these reasons, we hold that Rule 4(a)(6) requires that a
party file a motion before the district court to reopen the
time to file an appeal.
the appeal is DISMISSED for lack ...