John Ferguson, Plaintiff-appellant, v. Giant Foods, Inc., Defendant-appellee, 914 F.2d 1490 (4th Cir. 1990)

John Ferguson brought this action in state court challenging his termination from employment with Giant Foods, Inc. (Giant). Giant removed the case to the district court and moved for summary judgment. The district court granted the motion for summary judgment on April 10, 1990. Ferguson noted an appeal on May 14, 1990, beyond the 30-day appeal period set forth in Fed. R. App. P. 4(a) (1). Ferguson moved for an extension of time to appeal on June 13, 1990, two days beyond the excusable neglect period prescribed by Fed. R. App. P. 4(a) (5). The district court granted the motion in a marginal order.

Because the notice of appeal was late and the motion for extension of time was not filed within the period prescribed by Fed. R. App. P. 4(a) (5), the district court was without jurisdiction to grant the extension. Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226 (4th Cir. 1981); United States v. Avendano-Camacho, 786 F.2d 1392 (9th Cir. 1986); United States v. Cheek, 761 F.2d 461 (8th Cir. 1985); United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977). Therefore, the appeal was untimely and this court does not have jurisdiction to consider it. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). We grant the appellee's motion to dismiss the appeal as untimely.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid in the decisional process.

DISMISSED