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Wright v. Barnhart, 01-30913 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 01-30913 Visitors: 19
Filed: Apr. 29, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-30913 Summary Calendar CURTIS L. WRIGHT, Plaintiff-Appellant, versus JO ANNE B. BARNHART, Commissioner of Social Security, Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Louisiana (No. 99-CV-2178) _ April 26, 2002 Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges. PER CURIAM:* Plaintiff Curtis L. Wright appeals the denial of his application for disability insurance benefits and su
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                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT




                              No. 01-30913
                            Summary Calendar



CURTIS L. WRIGHT,
                                                    Plaintiff-Appellant,

versus

JO ANNE B. BARNHART,
Commissioner of Social Security,
                                                    Defendant-Appellee.


         __________________________________________________

            Appeal from the United States District Court
                for the Western District of Louisiana
                           (No. 99-CV-2178)
          ________________________________________________
                            April 26, 2002


Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiff     Curtis   L.   Wright   appeals   the   denial   of   his

application for disability insurance benefits and supplemental

security income.     Because Wright did not file a motion to reopen

the time for filing his appeal within seven days of receiving




     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
notice   of   the   district   court’s   judgment,   we   lack   appellate

jurisdiction and dismiss his appeal.

                                    I.

     The district court entered its judgment against Wright on

April 19, 2001.     Wright filed a notice of appeal on June 19, 2001,

which we dismissed as untimely. On July 19, 2001, Wright submitted

to the district court a motion to reopen the time to file an appeal

pursuant to Federal Rule of Appellate Procedure 4(a)(6).           Wright

claimed that he did not receive a copy of the district court’s

judgment and did not learn of its entry until June 19, 2001, when

he logged onto PACER to check the status of his case.1                 The

district court granted Wright’s motion, and he filed his second

notice of appeal on July 26, 2001.

                                   II.

     Federal Rule of Appellate Procedure 4(a)(6) allows a district

court to reopen the time to file an appeal if, among other

requirements, “the motion is filed within 180 days after the

judgment or order is entered or within 7 days after the moving

party receives notice of the entry, whichever is earlier.”         FED. R.

APP. P. 4(a)(6)(A).    Wright first learned of the entry of judgment

when he reviewed the docket sheet on PACER on June 19, 2001.           The

government contends that Wright violated the seven-day deadline


     1
       PACER, or the Public Access to Court Electronic Records
System, is used by many federal courts to offer public access to
docket information over the internet.

                                    2
imposed by Rule 4(a)(6) because he filed his motion to reopen a

month after noticing the entry of judgment on the court’s docket.

Wright submits that the seven-day period is inapplicable because

viewing an electronic docket entry does not constitute notice under

the rule.   We agree with the government and find that Wright’s July

19 motion is untimely.

      In Wilkens v. Johnson, 
238 F.3d 328
, 332 (5th Cir. 2001), we

held that Rule 4(a)(6) does not “ascribe any particular qualities

or formalities to the words ‘receive’ or ‘notice’” and that “[a]ny

written notice of entry received by the potential appellant or his

counsel (or conceivably by some other person), regardless of how or

by   whom sent,   is   sufficient   to   open   subpart   (A)’s   seven-day

window.” Specifically, we found that an electronically transmitted

facsimile triggered the seven-day deadline for filing a motion to

reopen.   Wilkens also favorably cites the Ninth Circuit’s decision

in Nunley v. City of Los Angeles, 
52 F.3d 792
, 794 (9th Cir. 1995),

which held that Rule 4(a)(6)’s seven-day period began to run when

the appellant’s attorney spotted the entry of judgment in the

court’s docket records, despite the lack of formal service or of a

hard copy of the notice.

      We are unable to discern any distinguishing differences among

the notices in Wilkens, Nunley and the instant case.          We approved

of the electronically transmitted facsimile notice in Wilkens and

of the notice given by the docket sheet in Nunley.           Likewise, we

find that an electronic docket on PACER provides written, reliable

                                    3
notice.   Since Wright failed to file his motion to reopen within

seven days of viewing the entry of judgment on PACER, we are

without jurisdiction to hear his appeal.   Accordingly, the appeal

is DISMISSED.




                                4

Source:  CourtListener

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