1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 12-55 (CKK)

MEMORANDUM OPINION (September 16, 2012) For nearly six years, Appellant Green Miller, Jr., has pursued a variety of claims against the District of Columbia c oncerning four properties Appell ant owned during the 1990s. Miller v. District of Columbia , No. 06-1935, Mem. Opin. at 1-3 (D.D.C. June 18, 2007) (“ Miller I ”). The Court, (per Judge John D. Bates) , dismissed Appellant’s claims ch allenging the tax sales of two of Appellant’s properties for lack of subject matter jurisdiction, and remanded Appellant’s claims as to the remaining two properties allegi ng violations of the automatic stay triggered by Appellant’s bankruptcy filing. Id. at 5-9. In the adversarial bankruptcy proceeding, Judge S. Martin Teel, Jr., grante d summary judgment in fa vor of the District. Miller v. District of Columbia , No. 08-10028, J. (Bankr. D.D.C. Aug. 11, 2010) (“ Miller II ”). Presently before the Court is the Appellant’s appeal from the bankrupt cy court’s grant of summary judgment and subsequent denial of Appellant’s post-j udgment motions to reconsider. 1 Also before the Court is the District’s [10] Motion to Dismiss for Lack of Jurisdiction. 2 Both

1 Br. for Appellant , ECF No. [9].

2 Appellee’s Mot. to Dismiss Appeal, ECF No . [10] ; Appellant’s Opp’n, ECF No. [12]; GREEN MILLER, JR., Plaintiff/Appellant,

v. DISTRICT OF COLUMBIA, Defendant/Appellee.2 parties have filed motions for leave to file surreplies regarding the District’s motion to dismiss, 3 and the Appellant has submitted several miscellaneous motions. For the reasons stated below, the Court finds Appellant’s notice of appeal is un timely as to all but the final order issued by the bankruptcy court denying Appellant’s motion for exte nsion of time to file a notice of appeal. The Court finds the bankruptcy court did not abus e his discretion in denying Appellant’s motion for extension of time. Acco rdingly, Appellant’s miscellaneous motions are DENIED, the parties’ respective motions for leave to file su rreplies are GRANTED, the District of Columbia’s motion to dismiss is GRANTED IN PART and DENIED IN PART. The bankruptcy court’s September 21, 2011 Order is AFFIRMED, a nd the appeal is DISMISSED. I. BACKGROUND The factual dispute between the parties has b een detailed at length in prior opinions. E.g. , Miller II , ECF Nos. [1], [96], [124]. On D ecember 3, 2009, Judge Teel granted summary judgment in favor of the District as to Appe llant’s claim for compensatory damages, and dismissed Appellant’s claim for punitive damages. Miller II , 12/3/09 Mem. Decision, ECF No. [96]. Upon consideration of the District ’s renewed motion for summary judgment, the bankruptcy court dismissed the A ppellant’s remaining claims, and entered judgment in favor of the District. Miller II , 8/11/10 Mem. Decision & J ., ECF Nos. [124, 125]. Although previously represented by couns el during the adversarial proceeding, on September 9, 2010, the Appellant filed a pro se motion to reconsider. The Appellant did not

Appellant’s Suppl. Opp’n, ECF No . [15]; Appellee’s Reply, ECF No. [16]; Appellee’s Surreply, ECF No. [26]; Appellant’s Su rreply, ECF No. [27]. 3 Appellee’s [26] Request for Leave to File Surreply to Appellant’s Reply to Appellee’s Documents, Docket Entry Nos. 10, 16, 20, & 21; A ppellant’s [27] Motion fo r Leave to File an Opp’n to Def./Appellee’s “Request for Leave to File Surreply.”3 state any basis for reconsidera tion, but requested “to and including October 4, 2010 within which to supplement his motion.” Miller II , 9/9/10 Mot. to Reconsider, ECF No. [128], at 1. Judge Teel denied the motion, but permitted the Appellan t to file a motion under Federal Rule of Civil Procedure 60, advising Appellant that the motion “must be made within a reasonable time and, in certain instances, no more than a year after the entry of the judgment.” Miller II , 9/14/10 Order, ECF No. [129], at 2-3. On Augus t 10, 2011, exactly one day shy of one year from the entry of final judgment, Appellant filed a re newed motion for reconsideration. Miller II , 8/10/11 Mot. for Reconsideration, ECF No. [132]. As characterized by the cour t below, Appellant’s motion simply re-argued the merits of the court’s prio r decisions, and offered no basis under Rule 60(b) for the court to provide relief from the judgment. Miller II , 9/1/11 Mem. Decision, ECF No. [135], at 2. Judge Teel denied the Appellant’s mo tion, finding the issues should have been raised in a timely Rule 59 motion to ame nd the judgment, or on appeal. Id. Fourteen days later, Appellant filed a “motion for extension of tim e,” seeking until October 14, 2011 to “retain another attorney or file [sic] responsive pleadings,” Miller II , 9/15/11 Mot. for Ext. of Time, ECF No. [139], which the court de nied on September 21, 2011, Miller II , 9/21/11 Order, ECF No. [140], at 2. The Appellant file d a notice of appeal on October 3, 2011, seeking review of the bankruptcy court’s December 3, 2009, Augus t 12, 2010, September 14, 2010, September 1, 2011, and September 21, 2011 orders. Miller II , 10/3/11 Notice of Appeal , ECF No. [142]. II. DISCUSSION Section 158(a) of Title 28 of the United States Code confer s on federal district courts jurisdiction to hear ap peals from final judgments, orders, and decrees “entered in cases and proceedings referred to the bankruptcy judges u nder section 157.” Section 158(c)(2) indicates that appeals under section 158(a) “shall be taken in the same manner as appeals in civil4 proceedings generally are taken to the courts of a ppeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules.” Incorporating this directive, Federal Rule of Bankruptcy Procedure 8001( a) states that appeals from a ba nkruptcy court’s judgment are to be carried out by filing a notice of appeal with the clerk “within the time allowed by Rule 8002.” Bankruptcy Rule 8002(a), in turn, pr ovides that “[t]he no tice of appeal shall be filed with the clerk within 14 days of the date of entry of the judgment, or der, or decree appealed from.” Appellants may toll the fourteen -day deadline set forth in Bankruptcy Rule 8002(a) by timely filing one of four motions: (1) a motion to amen d pursuant to Bankruptcy Rule 7052; (2) alter or amend the judgment under Bankruptcy Rule 9023; (3) for a new trial under Bankruptcy Rule 9023; or (4) a motion for relief under Bankruptc y Rule 9024—that is, Fe deral Rule of Civil Procedure 60(b)—if filed no later than 14 days after the entry of judg ment. Fed. R. Bank. P. 8002(b). Finally, a judge may extend the deadlin e to file a notice of appeal from certain judgments so long as the request for an extensio n is filed (1) “before th e time for filing a notice of appeal has expired,” or (2) “not later than 21 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect.” Fed. R. Bank. P. 8002(c)(2). Within this framew ork, the Court examines the A ppellant’s notice of appeal as applied to the five orders iden tified by the Appellant.
A. Appeal from Final Judgment The bankruptcy court entered final judgment in favor of the District on August 11, 2010. Pursuant to Rule 8002(a), the A ppellant had up to and including August 25, 2010 to f ile a notice of appeal. Appellant did not file a notice of appeal, but rather filed a “motion to reconsider” on September 9, 2010, twenty-nine days after the entry of final judgment. Re gardless of how the bankruptcy court could have cons trued Appellant’s motion, the mo tion did not toll the deadline5 for filing a notice of appeal under Bankruptcy Rule 8002(b). See Fed. R. Bank. P. 7052 (indicating a motion to amend findings must be filed within fourteen days of entry of the judgment); Fed. R. Bank. P. 9023 (providing a moti on for a new trial or to amend the judgment must be filed within fourteen days of the entr y of judgment); Fed. R. Bank. P. 8002(b)(4) (noting a motion for relief under Rule 9024 must be filed with in fourteen days of the entry of judgment to toll the deadline to file a notice of appeal); accord Personal Elec. Trans ports, Inc. v. Office of
U.S. Trustee , 313 F. App’x 51, 52 (9th Cir. 2009). Nor did the Appellant seek an extension of time in which to file a notice of appeal. Ac cordingly, the Appellant’s notice of appeal was untimely as to the final judgment. 4

B. Appeal from September 14, 2010 Deni al of Motion to Reconsider The Appellant’s notice of app eal was filed more than one year after the September 14, 2010 Order denying Appellant’s initi al motion to reconsider a nd is therefore untimely.
C. Appeal from September 1, 2011 Deni al of Motion to Reconsider The bankruptcy court denied Appellant’s s econd motion to reconsider on September 1, 2011, meaning Appellant needed to file his notice of appeal on or before September 15, 2011. In lieu of a notice of appeal, the Appellant file d a motion for extension of time on September 15, 2011, which the court denied on September 21, 2011. Since the bankruptcy court declined to allow Appellant additional time to file a notice of appeal of the court’s September 1, 2011 order, the Appellant’s October 3, 2011 notice of appeal wa s untimely as to the denial of Appellant’s second motion to reconsider.

4 The Court need not reach the District’s contention that Rule 8002 is jurisdictional in nature. Even if considered a claim-pro cessing rule, the require ments of Rule 8002 are unalterable in light of the District’s timely objection. Cf. Youkelsone v. Fed. Deposit Ins. Co. , 660 F.3d 473, 476 (D.C. Cir. 2011).6 D. Appeal from September 21, 2011 Denial of Motion for Extension of Time Appellant filed his notice of appeal twelve days after th e court denied his motion for extension of time to file a notice of appeal, therefore this Court has jurisdiction to review Judge Teel’s September 21, 2011 Order. The D.C. Circui t has not directly addressed the standard of review concerning a bankruptcy co urt’s denial of a motion for extension of time to file a notice of appeal. Several other Circuits employ the “abuse of discretion” standard, which is utilized by this Court in reviewing other discretionary actions taken by the bankruptcy court. In re Douglas , No. 10-492, 2012 WL 2367141, at *2 (D.D.C. June 22, 2012) (citing cases). Accordingly, the Court shall review the bankruptcy court’s order for abuse of discretion. The party seeking reversal must show the bankruptcy court “based its ruling on an erroneous view of the law or a clearly erroneous assess ment of the facts.” Johnson v. McDow ( In re Johnson ), 236 B.R. 510, 518 (D.D.C. 1999) (quoting Cooter & Gell v. Hartmax Corp. , 496 U.S. 384, 405 (1990)). Appellant filed his motion for extension of time before the fourteen-day deadline for filing a notice of appeal lapsed. Denial of such timely motions may be considered unusual, but “committed to the sound discretion of the bankruptcy court.” In re Reeves , 463 B.R. 143, 2011 WL 5909202, at *7 (B.A.P. 10th Cir. Nov. 28, 2011) (Table). The Appellant argues that “[t]he fact that Appellant’s attorney had remove [sic ] from the case, the Court should have granted Appellant additional time to retain another attorn ey or obtain legal advice to file responsive pleadings.” Appellant’s Br. at 18. In deny ing Appellant’s motion, the bankruptcy court explained that Now, more than one year after the cour t entered judgment agai nst the plaintiff, one month after the plaintiff filed a moti on to strike his attorney, and two weeks after the court denied the plaintiff’s mo tion for reconsideration, the plaintiff has filed a motion for an extension of time to retain new counsel or file responsive pleadings. Given that the plaintiff has know n he was unrepresented as of no later7 than August 10, 2011, the court believes it is inappropriate to alter any deadlines to accommodate Mr. Green’s desire to obtain counsel. Miller II , 9/21/11 Order, ECF No. [140], at 1-2. In f act, Appellant’s Brief i ndicates that he knew in advance of his August 10, 2011 motion to r econsider that his attorney was no longer performing work on the case, which led Appellan t to prepare the second motion to reconsider

pro se . Appellant’s Br. at 14. Ultimately, “[t]he bankruptcy court is in the best position to determine whether a losing party should be afford ed more time in which to file an appeal. In re
Reeves , 2011 WL 5909202, at *7. In light of the factual and procedural history of this case, the Court cannot conclude that the bankruptcy court’ s assessment of the facts was clearly erroneous, and therefore finds the court did not abuse its discretion in denying Appellant’s motion for an extension of time. III. MISCELLANEOUS MOTIONS The Court briefly addresses th e numerous miscellaneous mo tions filed by the Appellant, specifically:

 Appellant’s Mot. to Recons. this Ct.’s Mar. 19, 2012 Order a& [sic] Impose Sanctions Against Appellee’s Atty Nancy L. Alper, ECF No. [18]; Appellee’s Opp’n, ECF No. [21]; Appellant’s Re ply, ECF No. [24].

 Appellant’s Mot. for the Ct. to Appoint a Special Atty to Investigate Appellee’s Violations of the Law, Fraud & Abuse of th e Ct.’s Processes, ECF No. [19]; Appellee’s Opp’n, ECF No. [21]; Appella nt’s Reply, ECF No. [24]. First, in his motion to reconsider, Appellant takes issue with the District’s opposition to Appellant’s [6] Motion for Extension of Time to File His Brief, alleging the District made “unfounded, fraudulent [sic] misrep resentations,” and “induced th is court to impose special conditions upon Appellant based upon fraud.” Appellant’s mo tion is DENIED. The Court granted Appellant’s underlying mo tion for an extension of time, while advising the Appellant that it was his obligation to ensure the Cour t received his filings in a timely manner, an8 obligation shared by all litigan ts. Third, Appellant’s motion re garding the appointment of a special attorney is DENIED. This motion simply re-states Appellant’s allegations that the District’s conduct regarding the Appellant’s pr operty was unlawful. The Appellant did not timely appeal the bankruptcy c ourt’s decision regarding the mer its of the Appellant’s claims, therefore the allegations in Appellant’s moti on are not properly before this Court. IV. CONCLUSION For the reasons stated above, the Court finds Appellant’s notice of appeal was untimely as to all orders except for the bankruptcy court’s September 21, 2011 de nial of Appellant’s motion for an extension of time. With regards to that order, the Court finds the bankruptcy court did not abuse its discretion in denying Appellant additional ti me to seek new counsel. Accordingly, the parties’ respective motions for leave to file surreplies are GRANTED, the District of Columbia’s [10] Motion to Dismiss for Lack of Jurisdiction is GRANTED IN PART and DENIED IN PART. Appellant’s appeal of the bankruptcy Court’s December 3, 2009, August 12, 2010, September 14, 2010, and Septem ber 1, 2011 Orders is DISMISSED as untimely. The bankruptcy court’s September 21, 2011 Order denying Appellant’s motion for extension of time is AFFIRMED. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE