UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL O. DEVAUGHN, a/k/a 

Michael DeVaughn,

Plaintiff-Appellant,

v.  No. 03-6407 ISAAC JOHNSON, JR., Assistant United

States Attorney; J. WESLEY

HOLBROOK, Assistant United States

Attorney,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Margaret B. Seymour, District Judge.

(CA-01-2657-4-24)

Submitted: September 15, 2003

Decided: October 17, 2003

Before WILLIAMS, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion. 

COUNSEL

Michael O. DeVaughn, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Michael DeVaughn seeks to appeal the district court’s order adopting the magistrate judge’s recommendation to dismiss without prejudice DeVaughn’s Bivens1

 action. We dismiss the appeal for lack of

jurisdiction because the notice of appeal was not timely filed. 

When the United States or its officer or agency is a party, the

notice of appeal must be filed no more than sixty days after the entry

of the district court’s final judgment or order, Fed. R. App. P.

4(a)(1)(B), 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. Director, Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). 

The district court’s order dismissing DeVaughn’s Bivens action

was entered on the docket on July 3, 2002, and its order denying his

motion for reconsideration under Fed. R. Civ. P. 59(e) was entered on

August 16, 2002. On February 14, 2003, DeVaughn filed his notice

of appeal and a motion to reopen the appeal period under Fed. R.

App. P. 4(a)(6).2 Although the district court granted DeVaughn’s

motion to reopen the appeal period, we find DeVaughn is not entitled

to that relief. DeVaughn’s motion of December 19, 2002 demonstrates that he learned of the district court’s order denying reconsideration by that date. The plain language of Rule 4(a)(6) requires a

motion to reopen be 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" (emphasis added). Because

1Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971). 

2

See Houston v. Lack, 487 U.S. 266, 276 (1988). 

2 DEVAUGHN v. JOHNSON
DeVaughn’s motion to reopen was filed more than seven days after

he received notice of the order denying reconsideration, the district

court lacked authority to reopen the appeal period. See Hensley v.

Chesapeake & Ohio Ry. Co., 651 F.2d 226, 228 (4th Cir. 1981) (noting expiration of the time limits in Rule 4 deprives the court of jurisdiction). 

Accordingly, we dismiss this appeal as untimely.3 We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

DISMISSED

3

See also Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91 (3d Cir.

1995) ("The time limits provided by [Rule] 4(a)(6) . . . are ‘mandatory

and jurisdictional,’ and the courts are required to dismiss untimely

appeals sua sponte."). 

DEVAUGHN v. JOHNSON 3