Opinion
24-4020
03-29-2024
EDSON G. GARDNER, Plaintiff - Appellant, v. WENDI LONG, in her official capacity as Treasurer for Uintah County, Utah, Defendant-Appellee.
(D.C. No. 2:18-CV-00509-RJS) (D. Utah)
Before BACHARACH, MORITZ, and EID, Circuit Judges.
ORDER
For more than 30 years, pro se plaintiff-appellant Edson G. Gardner has filed lawsuits contending that he is an Indian entitled to the protections afforded to members of Indian tribes under federal law, and therefore immune from the state and local laws to tax him and his property. He continues to pursue these lawsuits despite the fact that this Court held in 1994 that he is not a member of an Indian tribe. See Gardner v. United States, No. 93-4102, 1994 WL 170780, at *3-5 (10th Cir. May 5, 1994) (unpublished).
In the case underlying this appeal, Mr. Gardner sought to enjoin the Treasurer of Uintah County, Utah from enforcing tax liens against property in which he claimed to have an ownership interest. The district court dismissed the action when Mr. Gardner failed to take any steps to advance the case on the merits. This court affirmed. See Gardner v. Long, No. 21-4101, 2022 WL 1494425 (10th Cir. May 12, 2022) (unpublished).
The district court subsequently sanctioned Mr. Gardner with an award of attorney fees on the ground that Mr. Gardner had acted in bad faith in filing the lawsuit. This court affirmed both the fee award and its amount and held that Mr. Gardner had presented no "reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal." See Gardner v. Long, No. 22-4071, 2023 WL 2641479, at *2 (10th Cir. March 27, 2023) (unpublished).
Mr. Gardner has also initiated four other appeals from the underlying action that this court dismissed for lack of a final or appealable order and thus of jurisdiction. See Gardner v. Long, Nos. 21-4147 (10th Cir. Jan. 24, 2022); 21-4012 (10th Cir. March 4, 2021); 20-4128 (10th Cir. Feb. 2, 2021); 20-4047 (10th Cir. May 27, 2020).
Mr. Gardner seeks now to appeal the district court's December 29, 2023 order denying the post-judgment motion he captioned as "Plaintiff File Leave to File Remand Statement Regarding Related Case." [See ECF Nos. 213, 214]. Upon opening this latest appeal, the court issued a jurisdictional show cause order, directing Mr. Gardner to address the timeliness of his notice of appeal. Mr. Gardner filed a timely response. Upon consideration of these filings, the district court docket, and the applicable law, the court dismisses Mr. Gardner's appeal as untimely filed for the reasons discussed below.
"A timely notice of appeal is both mandatory and jurisdictional." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006) (quotation omitted). Thus, although Mr. Gardner is proceeding pro se, he must still comply with the time requirements in the procedural rules. See Mayfield v. U.S. Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir. 1981) (dismissing pro se appeal filed three days late).
The district court entered the order Mr. Gardner seeks to appeal on December 29, 2023. To appeal, Mr. Gardner was required to file his notice of appeal on or before January 29, 2024. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal in a civil case "must be filed with the district clerk within 30 days after entry of the judgment or order appealed from"); Fed. R. App. P. 26(a)(1)(C) (if last day of prescribed time period falls on a Saturday, Sunday or legal holiday, the period continues to run until the end of the next business day). However, Mr. Gardner did not sign his notice of appeal until February 23, 2024, and the district court did not receive it until February 26, 2024, nearly a month after it was due.
Accordingly, "[t]he time limit has run and we are without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.2d 460, 464 (10th Cir. 1995).
APPEAL DISMISSED.