(D.C. No. 5:20-CV-00226-G) (W.D. Okla.)
Before TYMKOVICH, MATHESON, and FEDERICO, Circuit Judges.
ORDER
This appeal is before us sua sponte to consider the court's jurisdiction over this appeal. See Hill v. Vanderbilt Cap. Advisors, LLC, 702 F.3d 1220, 1223 (10th Cir. 2012) (this court has "an independent duty to examine [its] own jurisdiction").
The district court entered judgment against appellant James Ezell, III on March 4, 2024. Mr. Ezell did not file his notice of appeal until April 29, 2024, after the 30-day filing deadline had expired.
We entered a show cause order that required Mr. Ezell to explain why appellate jurisdiction was present in this appeal. We have before us Mr. Ezell's response to that show cause order. Upon consideration of Mr. Ezell's response, the district court docket, and the applicable law, we conclude we lack jurisdiction for the reasons articulated below.
"A timely notice of appeal is both mandatory and jurisdictional." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006) (quotation omitted). In a civil case that does not include a federal actor as a party, a notice of appeal "must be filed with the district clerk within 30 days after entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). In his response to the show cause order, Mr. Ezell argued that the court should excuse his late filing for "good cause," apparently because his attorney encountered a delay in transmitting the district court's judgment to him. However, the court does not have the authority to extend the time for Mr. Ezell to file his notice of appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007) (no authority to create equitable exceptions to jurisdictional time limit applicable to notice of appeal in a civil case); see also Alva v. Teen Help, 469 F.3d 946, 950 (10th Cir. 2006) (only the district court can extend the time to file a notice of appeal, and only under limited circumstances).
Here, the district court's final judgment was entered March 4, 2024. To be timely, the notice of appeal had to be filed in the district court by April 3, 2024. Mr. Ezell did not file the notice of appeal until April 29, 2024, after the deadline to appeal the judgment passed. This court has no authority to ignore the jurisdictional requirement to file a timely notice of appeal. Bowles, 551 U.S. at 214. So, "[t]he time limit has run[,] and we are without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.3d 460, 464 (10th Cir. 1995).
We note that under the prison mailbox rule, see Fed. R. App. P. 4(c), Mr. Ezell's notice of appeal perhaps could be considered filed as early as April 17, 2024. However, even assuming we should consider Mr. Ezell's notice of appeal filed on April 17, 2024, it would not change the conclusion that Mr. Ezell did not file his notice of appeal within the jurisdictional time limit to do so.
APPEAL DISMISSED.