Joseph Michael Ladeairous v. Merrick B. Garland, U.s. Attorney General

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2022 Decided August 5, 2022
No. 21-5119
JOSEPH MICHAEL LADEAIROUS,
APPELLANT
v.
MERRICK B. GARLAND, U.S. ATTORNEY GENERAL AND
MICHAEL E. HOROWITZ, U.S. INSPECTOR GENERAL,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00954)
Odunayo Durojaye, Student Counsel, argued the cause as
amicus curiae in support of appellant. With her on the briefs
were Erica Hashimoto, appointed by the court, and Richard
Rosen, Student Counsel.
Joseph Michael Ladeairous, pro se, filed the briefs for
appellant.
Douglas C. Dreier, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were R. Craig
Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.

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2
Brenda A. Gonzalez Horowitz, Assistant U.S. Attorney,
entered an appearance.
Before: ROGERS, KATSAS and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge Walker.
WALKER, Circuit Judge: Joseph Michael Ladeairous filed
a late notice of appeal. He also failed to move to extend the
time to file it or to reopen that time. We therefore dismiss his
appeal.
I
Ladeairous believes that officials in the Department of
Justice (and elsewhere) have persecuted him for supporting
“the Irish republican cause.” Ladeairous v. Sessions, 884 F.3d
1172, 1173 (D.C. Cir. 2018). So he sued the United States
Attorney General and the Department of Justice Inspector
General. On February 24, 2021, the district court dismissed his
suit.
At least seventy-five days later, Ladeairous filed a notice
of appeal in the district court that read: “Notice is hereby given
that Joseph Michael Ladeairous, plaintiff in the above said
matter, will appeal to the U.S. Court of Appeals for the District
of Columbia for the judgment of this Court filed February 24,
2021.” JA 41.1
1 Ladeairous is currently in prison, so his notice of appeal was
deemed “filed” when he gave it to the prison authorities to be mailed.
See Houston v. Lack, 487 U.S. 266, 276 (1988). The record does not
show when prison authorities received Ladeairous’s notice, so we do
not know that exact date. But his notice was notarized on May 10,
2021 — seventy-five days after the district court’s judgment — so
that is the earliest day he could have given it to the prison officials.

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3
This Court noted that Ladeairous had filed his notice of
appeal after the sixty-day deadline imposed by Congress in 28
U.S.C. § 2107(b). We therefore ordered him to show cause as
to why his appeal should not be dismissed as untimely. In
response, Ladeairous wrote that he had not received the district
court’s order until May 4, sixty-nine days after the judgment,
because of delays in the mail system at the prison where he is
currently held.
II
We must decide whether Ladeairous’s response to this
Court’s show-cause order can be combined with his notice of
appeal in the district court to serve as a substitute for a motion
to extend or reopen the time to file a notice of appeal. It
cannot.2
Losing parties in suits that involve the United States or its
officers have sixty days from the district court’s entry of
judgment to file an appeal. 28 U.S.C. § 2107(b). That time
limit is jurisdictional. See Bowles v. Russell, 551 U.S. 205, 214
(2007). So when parties do not meet it, we have no power to
hear their appeals, no matter how compelling their reasons. Id.;
see also id. at 212 n.4 (noting that the Supreme Court rejected
a petition for certiorari in a death penalty case that had been
filed one day late, so that the petitioner was executed “without
any Member of this Court having even seen his petition”).
2 Because this issue was unresolved in this circuit at the time of
Ladeairous’s response, we appointed Erica Hashimoto and the
Georgetown Appellate Litigation Program as amicus counsel to
address that question. They have ably performed that task, and we
thank them for their assistance.

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Instead, the only source of relief for parties that miss the
appeal deadline is the pair of paths that Congress provided in
28 U.S.C. § 2107, which are now set out in Federal Rules of
Appellate Procedure 4(a)(5) and 4(a)(6). Rule 4(a)(5) allows
the district court to extend the time to file a notice of appeal if
a “party shows excusable neglect or good cause.” Rule 4(a)(6)
allows the district court to reopen the time to file if it finds that
the party did not receive notice of the judgment within 21 days
and no party will be prejudiced. Like the sixty-day time limit
itself, those statutorily prescribed components of Rules 4(a)(5)
and 4(a)(6) are jurisdictional. See Bowles, 551 U.S. at 213;
Hamer v. Neighborhood Housing Services of Chicago, 138 S.
Ct. 13, 20 (2017) (limiting Bowles to the statutorily prescribed
components of those rules).
In Kidd v. District of Columbia, this Court held that Rules
4(a)(5) and 4(a)(6) require “a motion asking the district court”
for relief. 206 F.3d 35, 38 (D.C. Cir. 2000). The amicus
supporting Ladeairous argues that we should proceed in three
steps to determine that Ladeairous satisfied that requirement:
(1) Treat his response to our show-cause order as part of the
notice of appeal that he filed in the district court; (2) decide that
the combination of those two documents is functionally a Rule
4(a)(5) or 4(a)(6) motion; and (3) order the district court to
grant that “motion.”
That argument fails at step one.
According to the amicus, step one requires us to extend the
contemporaneous-filing rule from its traditional context to this
“analogous context.” Amicus Br. at 26 (citing Sinclair
Broadcast Group, Inc. v. FCC, 284 F.3d 148, 158 (D.C. Cir.
2002)); id. at 28 (“Sinclair is important here.”). That rule
applies to Federal Rule of Appellate Procedure 15, which
requires petitions for direct review of agency action to “specify

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the order or part thereof to be reviewed.” Fed. R. App. P.
15(a)(2)(C). Under the contemporaneous-filing rule, “the court
considers not only the contents of the petition for review but
also any documents affixed thereto or filed contemporaneously
therewith” when deciding whether a petitioner has satisfied
Rule 15. Small Business in Telecommunications v. FCC, 251
F.3d 1015, 1021 (D.C. Cir. 2001). If we can fairly infer from
those documents and the petition an intent to seek review of a
particular agency order, and the respondent is not misled by the
mistake, we deem Rule 15’s requirements satisfied. Id. at
1019.
The difference between that context and this case’s context
is stark. In the Rule 15 context, a single court with the power
to exercise jurisdiction receives all the necessary information.
The contemporaneous-filing rule merely ensures that a party
does not face harsh consequences for a slight imperfection of
form. But here, the issue is not a problem of form. Ladeairous
did not indicate in any form that he wants the district court to
extend or reopen the time to file a notice of appeal. And only
the district court — not this Court — has the power to provide
that relief and thereby make Ladeairous’s appeal timely.3
We therefore cannot extend the contemporaneous-filing
rule to cover Ladeairous’s separate filings in two different
courts. And absent that extension, Ladeairous cannot forge a
3 Because Ladeairous’s notice of appeal did not explain that he
received the district court’s judgment after the appeal deadline, this
case does not raise the question whether a notice of appeal with that
explanation can be construed as a motion for relief under Rule
4(a)(6). Compare Sanders v. United States, 113 F.3d 184, 187 (11th
Cir. 1997) (holding that it can); United States v. Withers, 638 F.3d
1055, 1061 (9th Cir. 2011) (same) with Poole v. Family Court of New
Castle County, 368 F.3d 263, 269 (3d Cir. 2004) (holding that it
can’t).

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Rule 4(a)(5) or 4(a)(6) motion from the combination of his
notice of appeal (in the district court) and his response to the
show-cause order (in this Court).
Instead, Ladeairous’s response to this Court’s show-cause
order was nothing more than a request to this Court for an
equitable exemption from the jurisdictional deadline. We have
no power to grant that equitable relief. See Bowles, 551 U.S.
at 214. Nor can we accept the amicus’s invitation to “forward”
Ladeairous’s response to our show-cause order “to the district
court for consideration” — courts are not post offices. Amicus
Br. at 31.
Finally, we briefly address an argument raised by
Ladeairous (and not by the amicus). He says that the sixty-day
clock should have started when he received the district court’s
judgment. But 28 U.S.C. § 2107(a) specifies that the time for
review runs from “the entry of” a “judgment, order or decree.”
And Federal Rule of Civil Procedure 77(d)(2) says that “[l]ack
of notice of the entry does not affect the time for appeal.”
* * *
Ladeairous’s appeal is untimely. We therefore dismiss it.
So ordered.

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