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Case number 21-519, Joseph Michael LaGarris at Belant versus Merrick B. Garland, U.S.

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Attorney General, and Michael E. Horowitz, U.S.

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Inspector General.

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Mr. Ojaie Amicus-Garayi at Belant, Mr. Dreier at Belize.

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Council for Appellant.

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Thank you, Your Honor.

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Erica Hashimoto has court-appointed amicus.

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In this case, with the court's permission, Odunayo Derojaye, a third-year law student at Georgetown Law Center, will be presenting argument on behalf of amicus.

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May it please the court.

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was promulgated for situations like this.

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Mr. Ladaris did not receive the district court's order until 69 days after it was entered.

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Shortly after he received the order, he sought to appeal it, but filed an incomplete Rule 4A6 motion to reopen.

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Once he was on notice that his motion to reopen was incomplete, he supplemented it with additional information as to why he qualified for Rule 4A6.

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This court should ensure his documents

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as a timely file of rule 486 motion to reopen.

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Because when applying the doctrine of contemporaneous filings, Ms.

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Ildaris' motion to reopen was timely.

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When you say an incomplete motion to reopen, you're referring to the notice of appeal.

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Correct, Your Honor.

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It's a pretty expansive notion, what a motion to reopen.

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No, Your Honor, because the reason it's an incomplete motion to reopen is because it did not specify that Mr. Ladaris did not receive the district court's order within 21 days of it being entered.

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In the 9th and the 11th circuits, when a notice of appeal included those reasons, they were construed as a timely and complete motion to reopen.

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And so, too, are they

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Mr. Lideres' notice of appeal with the response to the order to show cause are timely and complete for a 4A6 motion to reopen.

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And this court should consider the information that he provided in his response to the order to show cause because of the Supreme Court's longstanding history of considering contemporaneous documents to her imperfections of war.

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In Foeman, the Supreme Court allowed an untimely notice of appeal and a timely notice of appeal to determine that the appellant had sought relief

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of both underlying motion for the underlying denial of the motion to vacate, as well as the motion, the order that the appellant had talked review of.

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And this court should do the same here and consider the untimely, the timely notice of appeal with the response to the order to show cause that was filed outside

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And this court should apply the doctrine of contemporaneous filings to Rule 4A6, because when this court applied the doctrine to Rule 15, Rule 15 did not have a provision in it that stated an appeal should not be dismissed for informality of form.

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Nonetheless, this court applied the doctrine to Rule 15 and allowed for variety of contemporaneous documents.

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This case falls comfortably within the precedent set in Sinclair.

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In Sinclair, experienced counsel

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failed to satisfy the requirements of Rule 15A, which are jurisdictional, but this were allowed a contemporaneous document to satisfy those requirements.

[00:03:44] Speaker 04:
Why is a document filed 39 days late, contemporaneous, in the context of a rule whose entire time horizon is 14 days?

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The document is contemporaneous because in this court, in small business and telecoms, this court defines contemporaneous as at or near the same time.

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And in Sinclair, 34 days was contemporaneous.

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But 39 versus 34 is helpful to you.

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But I mean, neither of those sounds hugely contemporaneous to me.

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We're talking about at least a month.

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And one difference between Sinclair and here is the underlying time period in Sinclair was 60 days.

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You're 34 days late relative to a 60 day period.

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Here you're 39 days late relative to, even if everything goes perfectly, you only get 14 extra days.

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Yes, Your Honor.

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However, in Sinclair, that document was still filed outside the time limitations for the petition for review.

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And in this case, when you apply the doctrine of contemporaneous filings to Rule 4A6, the incomplete motion to reopen was still filed within 14 days of receiving the district court's order.

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And so when the doctrine of contemporaneous filings is applied, May 17th is the governing date of the motion to reopen because the information in the response to the order to show clause is only meant to supplement the information in the incomplete motion to reopen.

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Sorry, walk me through that.

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How do you get 14 days on this timeline?

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Mr. Ladaris received the district court's order on May 4th, 2021, and he submitted his notice of appeal, which was an incomplete Rule 46 motion to reopen on May 7th, 2021.

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And so because that was filed within the time limitations of Rule 4A6, even though it was incomplete, when the doctrine of contemporaneous filings is applied, May 17th is the governing date of the motion to reopen.

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And the governing location of the motion to reopen is the district court.

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But it's the document that cures the defects that has to be contemporaneously filed, right?

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That's the response to the order to show cause.

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And this court should consider the information in the response of the order to show cause, because when this court applied the doctrine to Rule 15, the provision in it did not state that an appeal should not be dismissed for informality of court.

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Nonetheless, this court applied it, and so too should they do the same in the context of Rule 486.

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And we look at the substance of the documents that were contemporary of the motion to reopen.

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They are satisfied with the requirements of Rule 4A6 because they allege and they assert that he did not receive the district court's order within 21 days.

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And he also provides proof of not receiving it with the stamp of the district court's order being set for May 4th, 2021.

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And the Supreme Court has emphasized an elevation of substance over

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And so because these documents together are the functional equivalent of a Rule 4A6 motion to reopen, that substance should be elevated over the form that the documents came from.

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And the form is also not dispositive because the courts of appeal agree that a Rule 4A6 motion does not need to be formal.

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And so because Mr. Ladares included the information, this court can consider the documents as a timely and complete Rule 4A6 motion to reopen.

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And the documents together satisfy the requirements of federal rules of Civil Procedure 71.

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Because they are in writing, they state the grounds for relief, and they ask this court to not dismiss for his appeal, or not dismiss his appeal.

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And this court also has a discretion to forward his documents.

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And so this court should, because it is unjust when an appellant who did not receive the district court's order filed a subsequent document in the wrong court, it would be unjust not for this court to forward that motion when Mr. Ladaris

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asserts that he did not receive the district court's order within 21 days of entry and includes that information.

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Would you define an incomplete motion as a general?

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An incomplete motion to reopen would not include that the appellant did not receive the district court's order within 21 days of entry.

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What about just even more generally, not even in the context of the appeal?

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Is an incomplete motion

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firm that you're using in eyes.

[00:08:46] Speaker 00:
Oh your honor for a rule for a six motion in order for it to be it would need to have been submitted within or um it would need to have been submitted and include the information he did not receive the district court's order and within 21 days and so because that information is missing that is what would make the motion to reopen is incomplete.

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And in conclusion, this court should construe his documents as a timely file rule for a six motion to reopen.

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There are no further questions.

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Thank you.

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I would like to reserve the rest of my time for.

[00:09:22] Speaker 03:
Thank you.

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So council floor app, please.

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Good morning.

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May it please the court.

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Douglas Dreier on behalf of the attorney general and inspector general.

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The heart of this case is that Mr. Lideres filed an appeal more than six days after entry of judgment and did not timely file either a rule 4A5 motion for extension or a rule 4A6 motion to reopen.

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Mr. Lideres admits as much on page 17 of his opening brief and on page four of his reply brief.

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Now we are here on an abuse of discretion standard asking whether the district court abuse its discretion and failing to rule on a motion never filed.

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As Mr. Lideres failed to comply with the rules and with 28 USC 2107, the court should dismiss this untimely appeal for lack of jurisdiction.

[00:10:16] Speaker 04:
Well, I mean, we're here on a legal question, whether the original filing, the notice of appeal is close enough to a 4A6 and whether the

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curing document of response to the order show cause is good enough and was filed soon enough, right?

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Those are legal questions.

[00:10:44] Speaker 06:
Yes, but if there was a rule 485 or 486 motion, then the district court's order would have been ruled on based on abuse of discretion.

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Uh, and here there is no dispute.

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My friend agrees.

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Sure.

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But I mean, that's, we haven't reached that point.

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Correct.

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But there's no dispute that a bear notice of appeal is insufficient to constitute a rule for a six motion to reopen or a rule for a five motion for extension.

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And the sole question is whether a response to a show cause order that was filed in a different court on June 23rd, well after his deadline to file either such motion could be treated as a motion to the district court when it was a response.

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There are no further questions.

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I thank the court and I ask for dismissal.

[00:11:52] Speaker 00:
Thank you, Your Honor.

[00:11:55] Speaker 00:
The government wrongly says that this is a bearer notice of appeal.

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This does not fall within any of the cases that are bearer notice of appeal, which would be in not a motion to reopen.

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This is the situation in which the notice of appeal was supplemented with additional information as to why he qualified for Rule 486.

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As any precedent that was set on a bearer notice of appeal does not apply here, especially because a notice of appeal does not need to be

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All that it has to do is allege, sorry, a motion to reopen does not need to be formal.

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All that it has to do is allege that the appellant did not receive the district court's order, and that is what Ms.

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Solideri said.

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He told this court that he did not receive the district court's order.

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I mean, it has to ask the district court for more, ask the district court for more time.

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And it has to show lack of prejudice.

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on the other side.

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I mean, there are elements to this rule and there is a court in which it has to be filed.

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And the order to show cause response doesn't doesn't tick off those elements, doesn't tick off any of that.

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Just asks for an equitable extension of the 60 day period, which you might like to do, but you know, from bowls that we can't.

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Your honor, this is not an equitable exception because when this court applied the doctrine of contemporaneous.

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The order to show cause opposition says.

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You consider my appeal timely because I didn't get notice in time.

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Yes, your honor, but he also states that he did not receive the district court's order and that is enough for a

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six motion to reopen because he did not receive it.

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And no particular words are necessary for a motion under rule four a six, but alleging that is sufficient.

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And although Mr. Lideres did not include that the government did not, would not be prejudiced.

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The government has yet to offer a reason as to why they would be prejudiced and having to appeal the case or to go through the motion, go through the case would not be a reason to alleged prejudice.

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And on your note of

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the district court.

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This court has a discretion to forward it to the district court to put the district court on notice, and it should exercise this discretion.

[00:14:26] Speaker 03:
Could I ask you whether or not you're familiar or not with the district court's pro se procedures?

[00:14:36] Speaker 00:
No, Your Honor, I'm not familiar.

[00:14:39] Speaker 03:
Thank you.