UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7224
STUART WAYNE TOMPKINS,
Plaintiff - Appellant,
v.
DAVID MITCHELL, Superintendent,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:08-cv-00322-GCM)
Submitted: February 17, 2010 Decided: March 4, 2010
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Stuart Wayne Tompkins, Appellant Pro Se. Yvonne Bulluck Ricci,
Assistant Attorney General, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stuart Wayne Tompkins seeks to appeal the district
court’s order denying relief in his 42 U.S.C. § 1983 (2006)
action. The district court entered its order on April 14, 2009.
Tompkins filed his notice of appeal on June 23, 2009. Attached
to his notice of appeal, Tompkins provided a sworn statement
that he did not receive notice of the district court’s order
until June 21, 2009.
Parties are accorded thirty days after the entry of
the district court’s final judgment or order to note an appeal,
Fed. R. App. P. 4(a)(1)(A), unless the district court extends
the appeal period under Fed. R. App. P. 4(a)(5), or reopens the
appeal period under Fed. R. App. P. 4(a)(6). This appeal period
is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of
Corr., 434 U.S. 257, 264 (1978) (internal quotation marks and
citation omitted); see Bowles v. Russell, 551 U.S. 205, 214
(2007).
Tompkins’ notice of appeal is clearly untimely.
However, we construe Tompkins’ notice of appeal as a motion to
reopen the time to appeal. See United States v. Feuver, 236
F.3d 725, 729 n.7 (D.C. Cir. 2001). Accordingly, we remand the
case to the district court for the limited purpose of permitting
that court to determine whether Tompkins can satisfy the
requirements for reopening the appeal period set forth in Rule
2
4(a)(6). See Ogden v. San Juan County, 32 F.3d 452, 454 (10th
Cir. 1994). The record, as supplemented, will then be returned
to this court for further consideration.
REMANDED
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