District of Columbia

Court of Appeals

No. 15-CV-1015

MARK HAWKINS,

Appellant,

v. CAB-1618-11

HOWARD UNIVERSITY HOSPITAL,

Appellee.

On Appeal from the Superior Court of the District of Columbia

Civil Division

BEFORE: GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.

J U D G M E N T 

This case was submitted to the court on the transcript of record and the 

briefs filed, and without presentation of oral argument. On consideration whereof, and 

for the reasons set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that appellant was entitled to an extension of 

time, as a matter of law. Accordingly, the Clerk of this court is directed to issue a 

briefing order, so that the appeal may be considered on the merits.

For the Court:

 

Dated: January 12, 2017.

Opinion by Associate Judge Roy W. McLeese.

JAN 12 2017
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CV-1015

MARK HAWKINS, APPELLANT,

V.

HOWARD UNIVERSITY HOSPITAL, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CAB-1618-11)

(Hon. Erik P. Christian, Trial Judge)

(Submitted October 5, 2016 Decided January 12, 2017)

Denise M. Clark was on the brief for appellant.

Ariana Wright Arnold, of the bar of the State of Maryland, pro hac vice, by 

special leave of court, and Adonna Bannister Green were on the brief for appellee.

Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.

MCLEESE, Associate Judge: Appellant Mark Hawkins seeks review of an 

order denying his motion for an extension of time within which to note an appeal

from an order granting summary judgment to appellee Howard University 

Hospital. We conclude as a matter of law that Mr. Hawkins was entitled to an 

extension of time. 

1/12/17
2

I.

Mr. Hawkins filed a complaint against Howard alleging unlawful 

harassment and discrimination. After the trial court granted summary judgment 

against Mr. Hawkins on September 9, 2013, Mr. Hawkins filed a timely motion for 

relief from judgment, pursuant to Super. Ct. Civ. R. 59 (e). Mr. Hawkins also filed 

a notice of appeal on October 9, 2013, within the time ordinarily required by D.C. 

App. R. 4 (a)(1). Because a timely motion for relief from judgment was pending in 

the trial court, this court issued an order requiring Mr. Hawkins to show cause why 

the appeal should not be dismissed as prematurely filed. In December 2013,

having received no response, a motions division of this court issued an unpublished 

order dismissing Mr. Hawkins’s appeal as having been prematurely filed. Counsel 

for Mr. Hawkins represented in the trial court that she did not receive notice of the 

order to show cause or of the dismissal of his appeal. 

The trial court issued an order on March 24, 2015, denying Mr. Hawkins’s 

motion for relief from judgment. Counsel for Mr. Hawkins represented in the trial 

court that her staff contacted this court shortly thereafter and was assured that the 

2013 notice of appeal had been filed. Counsel for Mr. Hawkins further alleges that 
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after contacting this court on May 19, 2015, to inquire about the status of the 

appeal, she learned that this court had dismissed the appeal in December 2013. On 

May 22, 2015, Mr. Hawkins filed a motion in the Superior Court for an extension 

of time to file a notice of appeal under D.C. App. R. 4 (a)(5)(A), which requires a 

showing of excusable neglect or good cause. Mr. Hawkins attached a notice of 

appeal to his motion for extension of time. The trial court denied the motion.

II.

Under D.C. App. R. 4 (a)(1), a notice of appeal in a civil case generally must 

be filed within thirty days after entry of the judgment or order from which the 

appeal is taken. If a party timely files any of the post-trial motions listed in D.C. 

App. R. 4 (a)(4)(A), including a timely motion for relief from judgment under Rule 

59 (e), the time to file a notice of appeal is tolled and begins to run “from the entry

of the order disposing of the last such remaining motion.” D.C. App. R. 

4 (a)(4)(A). A party may, however, file a notice of appeal after the trial court 

announces or enters a judgment, but before the trial court disposes of a tolling posttrial motion. In that instance, the notice “becomes effective . . . when the order 

disposing of the last such remaining motion is entered.” D.C. App. R. 

4 (a)(4)(B)(ii). 
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By their plain language, these provisions indicate that an otherwise timely 

notice of appeal should not be dismissed as premature simply because a tolling

post-judgment motion has been timely filed. Rather, such a notice of appeal in 

effect lies dormant until the post-judgment motion has been decided. If the postjudgment motion is denied, then no further action is required to permit an appeal 

from the underlying judgment to go forward. If, on the other hand, the postjudgment motion is granted in whole or in part, and the original judgment thus is 

altered or amended, a new notice of appeal must be filed, even if the party seeks 

only to challenge a part of the original judgment that was not altered or amended. 

D.C. App. R. 4 (a)(4)(B)(iii). In addition, if the party wishes to appeal the postjudgment ruling itself, then a separate notice of appeal must be filed. Id. 

D.C. App. R. 4 (a)(4)(B)(ii) and (iii) are identical in pertinent respects to 

corresponding provisions in the Federal Rules of Appellate Procedure. See Fed. R. 

App. P. 4(a)(4)(B)(i)-(ii). Those federal provisions were amended in 1993. Fed. 

R. App. P. 4(a) advisory committee note to 1993 amendments (“A notice filed 

before the filing of one of the specified [post-trial] motions or after the filing of a 

motion but before disposition of the motion is, in effect, suspended until the 

motion is disposed of, whereupon, the previously filed notice effectively places 
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jurisdiction in the court of appeals.”). The 1993 amendments were intended to 

address a “trap for . . . unsuspecting litigant[s]” created under the prior version of 

the rules, because “[m]any litigants, especially pro se litigants, fail to file the 

second notice of appeal” after the disposition of a post-trial motion. Id. 

Federal courts applying the post-1993 version of Fed. R. App. P. 4(a)(4)(B)

have consistently held that if a party files a notice of appeal after judgment but 

before disposition of a tolling post-trial motion, the notice of appeal is treated as

dormant but then becomes effective once the post-trial motion has been decided. 

See, e.g., Malloy v. WM Specialty Mortg. LLC, 512 F.3d 23, 26 (1st Cir. 2008) (per 

curiam) (although notice of appeal filed before ruling on post-trial motion to vacate 

judgment was premature, “notice became effective to appeal the . . . judgment 

when the court denied the motion to vacate”); Ross v. Marshall, 426 F.3d 745, 

751-52 (5th Cir. 2005) (“Our court has found that the timely filing of a motion 

listed in Rule 4(a)(4)(A) suspends or renders dormant a notice of appeal until all 

such motions are disposed of by the trial court. This holds true regardless of 

whether the motion was filed before or after the notice of appeal.”) (footnote 

omitted; citing cases); Hertzner v. Henderson, 292 F.3d 302, 303 (2d Cir. 2002)

(notice of appeal filed before district court ruled on tolling post-judgment motion 

“became effective” once trial court denied motion); 16A Charles Alan Wright et 
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al., Federal Practice and Procedure § 3950.4, at 393-94 (4th ed. 2008) 

(“[B]etween 1979 and 1993 Rule 4(a)(4) provided that a notice of appeal filed 

before the disposition of a Rule 4(a)(4) tolling motion had no effect. This 

draconian approach was discarded in 1993, and . . . an earlier-filed notice of appeal 

no longer loses its effect. . . . [W]hen a notice of appeal is filed before or after a 

party files a timely post-judgment motion that tolls the time to appeal under Rule 

4(a)(4)(A)[,] . . . the notice of appeal becomes temporarily ineffective, but later 

springs to life when the order disposing of the last such remaining tolling motion is 

entered. Until then the appeal is suspended—dormant—unripe.”) (brackets, 

footnotes, and internal quotation marks omitted).

This court adopted the current version of D.C. App. R. 4 (a)(4)(B) in 2004. 

Compare D.C. App. R. 4 (a) (Lexis 2004 ed.) with D.C. App. R. 4 (a) (Lexis 2003 

ed.). Under the prior version of our rules, notices of appeal filed after judgment 

but before disposition of a pending post-trial motion were “deemed premature,” 

depriving this court of jurisdiction to hear the appeal unless a new notice of appeal 

was filed after the post-trial motion’s disposition. Dyer v. William S. Bergman & 

Assocs., Inc., 635 A.2d 1285, 1287 (D.C. 1993). If the trial court denied the posttrial motion before this court dismissed the notice of appeal, however, this court in 
7

certain circumstances overlooked the prematurity of the notice of appeal. Carter v. 

Cathedral Ave. Coop., Inc., 532 A.2d 681, 683 (D.C. 1987).

No published decision of this court has addressed the proper interpretation of 

amended D.C. App. R. 4 (a)(4)(B)(ii)-(iii). We are aware, however, that in a 

number of unpublished decisions issued since 2004, motions divisions of this court 

dismissed, as premature, notices of appeal filed after judgment but before the trial 

court ruled on tolling post-trial motions. E.g., District of Columbia v. Fraternal 

Order of Police, Metro. Police Dep’t Labor Comm., 75 A.3d 259, 263 (D.C. 2013) 

(noting prior unpublished decision dismissing appeal as premature because posttrial motion was pending). Such unpublished decisions are not binding on us. See, 

e.g., O’Rourke v. District of Columbia Police & Firefighters’ Ret. & Relief Bd., 46 

A.3d 378, 383 n.9 (D.C. 2012) (“As the opinion in Hart was unpublished, it is not 

binding precedent.”). Relatedly, given the clarity of Rule 4 (a)(4)(B)’s language, 

we do not view ourselves as obliged to treat the ruling of the motions division in 

this case as binding under the law-of-the-case doctrine. See, e.g., Nunnally v. 

Graham, 56 A.3d 130, 142 (D.C. 2012) (law-of-case doctrine is discretionary); 

Lynn v. Lynn, 617 A.2d 963, 970 (D.C. 1992) (law-of-case doctrine does not 

prevent court from revisiting decision that was clearly erroneous and would work 
8

substantial injustice); Kennedy v. Barry, 516 A.2d 176, 178 n.3 (D.C. 1986) 

(declining to treat jurisdictional ruling of motions division as law of case).

The plain language of our current rules indicates that a notice of appeal filed 

after judgment but before disposition of a tolling post-trial motion should not be 

dismissed as premature, but rather should be treated as dormant until the post-trial 

motion has been decided. Moreover, we give substantial weight to federal 

decisions interpreting the identical language of the federal rules. See, e.g., TRG 

Constr., Inc. v. District of Columbia Water & Sewer Auth., 70 A.3d 1164, 1167 

(D.C. 2013) (“Interpretations of federal rules identical to our rules are accepted as 

persuasive authority.”) (internal quotation marks omitted). We therefore conclude 

that Mr. Hawkins’s original notice of appeal should not have been dismissed but 

rather should have been treated as dormant during the period after Mr. Hawkins 

filed the notice of appeal and before the trial court denied the motion for relief for 

judgment. 

In concluding that Mr. Hawkins failed to show excusable neglect for failing 

to file a timely second notice of appeal, the trial court relied heavily on the premise 

that Mr. Hawkins could not reasonably have believed that his initial notice of 

appeal was valid. For the reasons we have explained, we conclude to the contrary. 
9

We see no other basis upon which to uphold the trial court’s ruling. Counsel 

for Mr. Hawkins represented in the trial court that she did not learn until May 19, 

2015, that the initial notice of appeal had been dismissed. Mr. Hawkins filed his 

motion for extension of time three days later. Howard did not oppose that motion 

in the trial court, and the trial court appears to have assumed the truth of counsel’s 

representations. Although Howard has defended the trial court’s ruling in this 

court, Howard has not asked in the alternative for a remand for the trial court to 

assess the truthfulness of counsel’s representations. Under the circumstances, we 

think it appropriate to accept the truth of those representations for current purposes. 

Cf. Wynn v. United States, 386 A.2d 695, 698 n.10 (D.C. 1978) (declining to 

remand for further factual findings where United States did not present evidence at

hearing in trial court and did not seek remand on appeal). On that basis, we 

conclude as a matter of law that counsel for Mr. Hawkins showed adequate 

diligence in seeking an extension of time within which to file a second notice of 

appeal from the initial judgment.

Howard argues, however, that Mr. Hawkins’s motion for an extension of 

time must be denied for a different reason: D.C. App. R. 4 (a)(5)(i) required Mr. 

Hawkins to file a second notice of appeal within sixty days of the order denying 
10

the post-trial motion, which Howard claims Mr. Hawkins failed to do. In fact, Mr. 

Hawkins attached a second notice of appeal to his motion for extension of time, 

which was filed within sixty days of the order denying the post-trial motion. Mr. 

Hawkins thus complied with D.C. App. R. 4 (a)(5)(i).1

Under the reasoning that we adopt today, the initial notice of appeal should 

properly have been treated as dormant rather than dismissed as premature. In 

theory, the court could therefore reinstate the initial notice of appeal. We do not 

take that course, however, because Mr. Hawkins has not sought such relief and 

because taking that course would raise a variety of unsettled procedural questions, 

such as what division of the court should appropriately decide whether to recall the 

mandate dismissing the initial appeal. Rather, we simply conclude that, as a matter 

of law, Mr. Hawkins showed excusable neglect, thus rendering timely the notice of 

appeal attached to his May 22, 2015, motion for an extension of time. 

“Accordingly, we think it appropriate to treat this appeal as though [appellant]

 

1 We note one potential limitation. If Mr. Hawkins wanted to raise a 

separate challenge to the trial court’s denial of the Rule 59 (e) motion, then he was 

required to file a timely notice of appeal from that denial even if his original notice 

of appeal was sufficient to obtain review of the underlying judgment. D.C. App. 

R. 4 (a)(4)(B)(iii). Mr. Hawkins did not timely file such a notice, and he has not 

attempted to show good cause or excusable neglect for that failure. It is not clear, 

however, whether Mr. Hawkins seeks to raise a separate challenge to the Rule 

59 (e) motion, or whether instead all of the claims he wishes to raise may be raised 

in an appeal from the underlying judgment.
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obtained the necessary extension from the trial court . . . .” Clark v. Bridges, 75 

A.3d 149, 153 (D.C. 2013); see also, e.g., Gibbs v. Frisco City, Ala. Police Dep’t, 

626 F.2d 1218, 1221 (5th Cir. 1980) (“We therefore reverse on the finding of no 

excusable neglect and hold the notice of appeal was timely filed and proceed to a 

review of the case on the merits.”); cf. United States v. Andrews, 790 F.2d 803, 807 

(10th Cir. 1986) (“[W]e conclude as a matter of law that Andrews has established 

excusable neglect. We therefore have jurisdiction to consider the merits of his 

appeal.”) (citation omitted).

In sum, we deem Mr. Hawkins’s May 22, 2015, filing to be a timely notice 

of appeal from the underlying judgment. The Clerk of this court is directed to 

issue a briefing order, so that the appeal may be “consider[ed] on the merits.” 

Clark, 75 A.3d at 153-54.

So ordered.