concurring and dissenting:
The Federal Rules of Appellate Procedure in Rule 4(a)(5) provide:
The district court, upon a showing of excusable neglect or good cause, may extend 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.
Viewed as a whole, the Rule evidently contemplates that, so far as a would-be appellant’s own behavior is concerned,1 he, to perfect an appeal, must in the ordinary course act timely, i.e., within the initial thirty days prescribed by FRAP 4(a)(1). Rule 4(a)(5) goes on, however, to create an exception in cases of excusable neglect or good cause. In such a case the Rule provides that, assuming the appellant has been diligent enough to file a motion for an extension of time within the ensuing thirty days, the district court may excuse the failure to comply with the requirement that the appeal be filed within the initial thirty days.
First, as an aside, it may be pointed out that technically there probably was no excusable neglect presented in the present case. Myers, the would-be appellant, was not neglectful at all. The prison and post office officials or court clerk responsible for the dilatory course followed with respect to Myers’ mailing in all likelihood are chargeable with inexcusable neglect. Nevertheless, the tale unfolding here beyond peradventure of doubt reveals “good cause”, insofar as Myers was concerned, why his filing was delayed beyond the initial thirty days. One acting pro se, incarcerated in prison, mailing a notice of appeal no less than six and quite possibly ten days before the last day for filing, has allowed reasonable, indeed ample, time. Deprived of his freedom, he is in no position to monitor the timely progress of his mailing from point of origin to point of destination. Even were he free to monitor, still he would not be at liberty, as other would-be appellants are, should the post office fail to perform as Myers might reasonably expect, to substitute personal delivery.
A prison official who allows mail entrusted to him to lie fallow four days, a postman who is dilatory, or a clerk of court who neglects promptly to record receipt immediately upon a letter’s arrival each responds to a superior other than Myers.
It is considerations like these which make me discontent with the Court’s recent en banc decision in Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983). Still, I am bound by Shah v. Hutto, and would apply it if it governed decision here. However, I am satisfied that it does not for a readily ap*207parent reason. Had the district judge here, on learning of the situation prior to expiration of the second thirty day period, simply done nothing, leaving Myers in control of his own fate, while chanting “Am I my brother’s keeper?”, upon expiration of the period without a Rule 4(a)(5) motion, Shah v. Hutto would have applied.2
However, the district court took a much more commendable alternate course, granting sua sponte the extension permitted by Rule 4(a)(5).3 The Federal Rules of Appellate Procedure cannot be read as foreclosing so sensible a step by the judiciary. The purpose of the Rules is to enhance, not to curtail, the efficiency of judges.4 The action fully complied with the time strictures of Rule 4(a)(5). That step purely and simply equated to a holding that “if a motion were filed, I should surely grant it.” 5 In such circumstances, the law does not exalt the ridiculous. Instead it traditionally treats as done what should have been done.6
In the arcane language often employed by the legal profession, it is no stretch to say that, for Rule 4(a)(5) purposes, the motion in effect had to have been filed on or before it could have been “granted” and so it must have been filed on or before the expiration of sixty days from the date of entry of the order appealed from.
The whole purpose of Rule 4(a)(5) is to attack staleness, to require a matter to be brought to the court’s attention within sixty days of the entry of the order which is the subject of the appeal. Here, not only is it indisputable that it was brought to the district judge’s attention within sixty days; furthermore, the court had already acted *208and granted the relief before the time expired. The written motion, required by the Rule to have been initiated by appellant Myers was, in the circumstances, patently superfluous. The law does not customarily command performance of a useless act. The purpose of the rule having been fully met, it should be recognized as having been substantially complied with.
By not filing a written motion, Myers, consciously or unconsciously (surely the latter), ran the risk of losing his appeal on procedural grounds at an early stage. However, not all risk taking results in losses. Here, through the intervention of fate in the guise of a sensitive and humanitarian district judge, the risk cast upon Myers by the vagaries of the prison system, the post office, or the office of the clerk of court, was avoided.7
Of course, the remand ordered by the majority may fortuitously demonstrate that there was a timely appeal filed within the initial thirty days. However, I protest the needless delay, and the squandering of Myers’ meagre resources in time, effort and money occasioned by the delay. His appeal was timely, and he should be afforded expeditious recourse to resolution on the merits — a matter for which all his assets should be preserved.
. It is important to note that the Rule, focusing on what a party — a would-be appellant — must do, does not by any of its language foreclose sua sponte activity of the district judge.
. It may be noted that the thrust of FRAP Rule 4(a)(5) is simply to insure that a claim of excusable neglect or good cause as an excuse for failure to file the notice of appeal be brought to the attention of the district court within the second thirty day period. The court may then act to allow the appeal at a time more than sixty days after entry of the order appealed from. We need not inquire, however, as to the effectiveness of the appeal, if, having learned of Myers’ predicament in 56 days, the district judge had only acted to allow the belated appeal on the 61st day or thereafter. Here the allowance of the appeal occurred well within the first sixty days.
. The district judge simply waived, as redundant and serving no purpose, the requirement that a motion be filed, its entire raison d’etre, the prompt bringing of the matter to the court’s attention, having otherwise been accomplished.
See National State Bank of Newark v. Terminal Const. Corp., 217 F.Supp. 341, 354-355 (D.N. J.1963), aff’d, 328 F.2d 315 (3rd Cir.1964):
[T]he bonds [for work and labor] require that "such notice shall be served by registered mail, postage prepaid.” ... In general, the notice provisions must be strictly construed, as they are conditions precedent to the right to sue . . . . Although the bonds require that the notice be sent by registered mail, this is not necessary if the claimant can show that the notice was actually received.
Absence of registration was not allowed to void the effective giving of notice. Registration, in the circumstances of the case, would have been a needless superfluity.
Similarly, in the instant case, Rule 4’s filing and extension provisions, where a would-be appellant’s acts alone are under scrutiny, are strictly construed and operate as a condition precedent to the right to take an appeal. Yet, even though Rule 4(a)(5) requires a would-be appellant to request a filing extension by motion, Myers’ appeal, albeit untimely, rendered a motion unnecessary since, once it came to the attention of the district judge, it provided sufficient notice to the district court that he sought the 30 day grace period. A motion would have been entirely redundant.
. The action by the district judge did not conflict with the evident purpose of FRAP Rule 4(a)(5). Rather it served to effectuate the objective of the rule. Cf. Fed.R.Civ.P. 83: “In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.” See also FRAP Rule 47.
. Cf. King v. Laborers International Union of North America, Union Local No. 818, 443 F.2d 273, 277 (6th Cir.1971):
Had the Appellant requested an extension of time for the disposition of his motion to obtain a transcript at Government expense,- we would have granted such an extension of time. In view of the Appellant’s obvious inexperience with the judicial procedure and his good faith pursuit of his remedies, we believe it would be improper and unjust to dismiss his appeal for a simple failure to make a request for an extension of time.
. “Equity regards and treats that as done which in good conscience ought to be done.” 2 J.N. Pomeroy, Equity Jurisprudence § 364, at 10 (5th ed. 1941).
. It should be noted that several courts have attempted to soften the blow of Rule 4’s strict filing deadlines on pro se litigants. In particular United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979), stressed that "[i]t would be most helpful if the district court would advise a would-be appellant, and particularly one who is pro se, that his notice of appeal is untimely, thereby putting him on notice that some immediate action is yet required to secure appellate jurisdiction." Pryor v. Marshall, 711 F.2d 63, 65 n. 4 (6th Cir.1983) specifically cited the quoted passage in Lucas with approval. See also May-field v. United States Parole Comm'n, 647 F.2d 1053, 1055 n. 5 (10th Cir.1981) ("We reiterate the suggestion made in Lucas” that the District Court notify a pro se litigant of an untimely appeal.)
Ironically, Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983), relied upon Pryor v. Marshall for the proposition that simply because “plaintiffs are incarcerated and are proceeding pro se does not change the clear language of [Rule 4]. Dismissal is required where the Rule has not been followed." Id. at 1168. But Pryor specifically recommended a "helping hand” to pro se litigants who have filed an untimely appeal. That is exactly what the district judge provided here.
Nothing in the record suggests that Myers was warned in time of his untimely appeal. Instead, the rendering, to him of notice became altogether unnecessary since the district court sua sponte had remedied the delinquent filing of Myers’ appeal. Given the general predisposition of courts to alert pro se litigants of a failure to comply with Rule 4(a)’s thirty day deadline, coupled with Myers’ good faith and diligence in initially filing his appeal, he should not be prejudiced simply because the district court eliminated all need for notice in the instant case. At the very least, there should have to be a remand to allow the district court to notify Myers of the necessity that a motion be filed, coupled with a warning that filing in four days was necessitated to comply with the sixty day limit on filing. Obviously, such an approach would constitute a great deal of unnecessary “made work". Much more sensibly, the district court’s action in allowing the appeal should be considered tantamount to notice and a subsequent timely motion for an extension on the part of Myers.