Albert Morton, Appellant, v. E. Jenkins, D.c. School Superintendent, 957 F.2d 912 (D.C. Cir. 1992)

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U.S. Court of Appeals for the District of Columbia Circuit - 957 F.2d 912 (D.C. Cir. 1992) Feb. 28, 1992. Rehearing Denied April 9, 1992

Before MIKVA, Chief Judge and RUTH B. GINSBURG and D.H. GINSBURG, Circuit Judges.



Upon consideration of the motion to dismiss, or in the alternative, for summary affirmance, and the response thereto, it is

ORDERED that the motion to dismiss be granted. Appellant filed his motion to appeal more than thirty days after the district court entered judgment. The district court construed the motion as one to extend the time to file a notice of appeal. Because the motion had not been served on the appellee, as required by Fed. R. App. P. 4(a) (5), however, the district court lacked authority to order a time extension. See Malone v. Avenenti, 850 F.2d 569, 572-73 (9th Cir. 1988); Truett v. Johns-Manville Sales Corp., 725 F.2d 1301, 1302 (11th Cir. 1984) (per curiam); Oda v. Transcon Lines Corp., 650 F.2d 231, 232 (10th Cir. 1981) (per curiam). In the absence of a notice of appeal filed within thirty days, or within an extended time properly allowed by the district court, this court may not entertain the appeal. We note that appellant has misread Fed. R. App. P. 26(a) as excluding all weekends and holidays from the computation of the thirty-day period. The only weekends or holidays that are excluded, however, are those that fall on the last day of the thirty-day period.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.