dissenting:
I cannot agree with the majority’s conclusion that the 1979 amendment of Rule 4(a)(5) did not overrule our decision in Craig v. Garrison, 549 F.2d 306 (4th Cir.1977). I dissent.
On August 25, 1981, the district court entered summary judgment for defendants and dismissed plaintiffs’ complaint. Thirty-one days later, on September 25, 1981, plaintiffs’ notice of appeal was filed. Plaintiffs have never filed a motion for an extension of time within which to file a notice of appeal due to excusable neglect.
*722The courts of our land are bound by Acts of Congress except when in conflict with the Constitution or other rare exceptions. Notice of appeal in a civil suit is generally required to be filed within thirty days of the entry of judgment. F.R.A.P. 4(a)(1). In Craig v. Garrison, supra, Craig filed his notice of appeal thirty-seven days after dismissal of his habeas petitions. Under former F.R.A.P. 4(a),1 we in effect treated Craig’s untimely notice of appeal as a motion for an extension of time and remanded the case to permit Craig an opportunity to establish excusable neglect.
Thereafter, in 1979, Congress amended F.R.A.P. 4(a) to read as follows:
The district court, upon a showing of excusable neglect or good cause, may ex-' tend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.
(Emphasis added). This language expressly requires the filing of a motion for an extension of time. As if the rule itself were not clear, the Notes of the Advisory Committee on Appellate Rules provide that:
... The proposed amendment would make it clear that a motion to extend the time must be filed no later than 30 days after the expiration of the original appeal time, and that if the motion is timely filed the district court may act upon the motion at a later date, and may extend the time not in excess of 10 days measured from the date on which the order granting the motion is entered.
Under the present rule there is a possible implication that prior to the time the initial appeal time has run, the district court may extend the time on the basis of an informal application. The amendment would require that the application must be made by motion, though the motion may be made ex parte. After the expiration of the initial time a motion for the extension of the time must be made in compliance with the F.R.C.P. [Federal Rules of Civil Procedure, this title] and local rules of the district court.
(Emphasis added).
Other Circuit Courts which have reviewed the effect of the 1979 amendments to Rule 4(a) of the Federal Rules of Appellate Procedure under similar circumstances have abandoned the reasoning of Craig v. Garrison, supra, and have held that a motion to extend the time must be filed no later than thirty days after the expiration of the original appeal period in order for a court of appeals to have jurisdiction over the appeal. Brooks v. Britton, 669 F.2d 665 (11th Cir.1982); Pettibone v. Cupp, 666 F.2d 333 (9th Cir.1981); Wyzik v. Employee Benefit Plans of Crane Co., 663 F.2d 348 (1st Cir.1981); Mayfield v. United States Parole Commission, 647 F.2d 1053 (10th Cir.1981); Sanchez v. Board of Regents, 625 F.2d 521 (5th Cir.1980).2
*723The fact that the litigant is incarcerated and is proceeding pro se does not change the clear language of the Rule and necessitates a dismissal where the Rule has not been followed. Brooks v. Britton, 669 F.2d 665 (11th Cir.1982); Pettibone v. Cupp, 666 F.2d 333 (9th Cir.1981); Mayfield v. United States Parole Commission, 647 F.2d 1053 (10th Cir.1981); Meggett v. Wainwright, 642 F.2d 95 (5th Cir.), cert. denied, 454 U.S. 1090, 102 S.Ct. 653, 70 L.Ed.2d 628 (1981). To alleviate the possible harshness of the rule in the context of pro se appeals, the district courts may inform the pro se litigant in the final order of the requirements of Rule 4(a)(5) and the consequences of failure to comply therewith. Cf. Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) (summary judgment procedure). Also, as suggested by footnote 3 of the majority opinion, all district court clerks’ offices might screen notices of appeal for timeliness and advise the pro se litigant of the appropriateness of a motion for an extension of time.
When courts treat letters and other various papers' filed by pro se litigants as the equivalents of notices of appeal, they are merely effectuating the manifest intent of litigants unversed in the law. E.g., Riffle v. United States, 299 F.2d 802 (5th Cir. 1962). However, in my view, a bare notice of appeal should not be construed as a motion for extension where no request for additional time is manifest. We are bound by the language of the 1979 amendment and its requirement of a “motion filed” within the second thirty-day period at the latest.
We judges do not sit as legislators. It is not our function to rewrite the rules. We must take the rules as we find them and apply them according to their plain import. The 1979 amendment clearly requires the timely filing of a formal motion, and no motion was timely filed in this ease.
Accordingly, I would dismiss this appeal for lack of jurisdiction.
. The last paragraph of former F.R.A.P. 4(a) provided in part that:
Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), cited by the majority in support of its “flexible approach,” is distinguishable. It involved an appeal in a criminal case. Furthermore, the then applicable rule and the current rule provide in part that:
Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of *723appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
F.R.A.P. 4(b) (emphasis added).