Lizardo v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-2044

JUAN FRANCISCO LIZARDO,

Appellant

v.

UNITED STATES OF AMERICA

On Appeal from the District Court

of the Virgin Islands

(District Court No. 3-02-cv-00155)

District Judge: The Honorable Curtis V. Gomez

Submitted Under Third Circuit LAR 34.1(a)

May 3, 2010

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges

(Filed: August 10, 2010)

1

Nelson L. Jones

Office of United States Attorney

United States Courthouse

5500 Veterans Building, Suite 260

Charlotte Amalie, St. Thomas, Virgin Islands, 00802

Counsel for Appellee

Joseph A. DiRuzzo, III

Law Office of Marjorie Roberts

1 Hibiscus Alley

St. Thomas, Virgin Islands, 00802

Counsel for Appellant

OPINION

SMITH, Circuit Judge.

Juan Francisco Lizardo was convicted of various drug

crimes in the District of the Virgin Islands. He later petitioned

for relief under 28 U.S.C. § 2255. The District Court denied his

petition and he sought and received a certificate of appealability

to this Court.1 Three issues were certified for appeal, but the

first is dispositive: whether Lizardo’s untimely motion for

1

The District Court had jurisdiction over Lizardo’s §

2255 petition under 28 U.S.C. § 1331.

2

reconsideration, see Fed. R. Civ. P. 59(e), tolled the time for

filing a notice of appeal, see Fed. R. App. P. 4(a)(4)(A).2

Rule 59(e) 3 is a claim-processing rule. Accordingly, a

timeliness objection to a motion brought under that rule may be

forfeited if it is not raised in the district court. In this case,

Lizardo’s untimely Rule 59(e) motion was decided, without

objection, by the District Court. The Government, therefore,

forfeited any timeliness objection it could have made at that

stage of the litigation. The forfeiture in the District Court,

however, did not render the Rule 59(e) motion timely for

purposes of Rule 4(a)(4)(A) of the Federal Rules of Appellate

Procedure.4 The Government is free to challenge Lizardo’s

2

The other issues certified for appeal were whether

Lizardo’s notice of appeal was timely filed under the prison

mailbox rule and whether the District Court applied the correct

standard in evaluating Lizardo’s claim that his trial counsel

deprived him of the right to testify on his own behalf. Lizardo

concedes the former issue and we lack jurisdiction to address the

latter issue.

3

Unless otherwise noted, all references to “Rule 59”

refer to Rule 59 of the Federal Rules of Civil Procedure as it

existed in 2008.

4

Unless otherwise noted, all references to “Rule 4” refer

to Rule 4 of the Federal Rules of Appellate Procedure as it

existed in 2008.

3

reliance on Rule 4(a)(4)(A)’s tolling provision—which requires

that the underlying Rule 59(e) motion that initiated the tolling

have been timely filed, Fed. R. App. P. 4(a)(4)(A)—in this

Court. As such, the Government’s challenge in this Court to

Lizardo’s invocation of Rule 4(a)(4)(A)’s tolling provision is

meritorious. Without the benefit of tolling, Lizardo’s notice of

appeal was untimely and his appeal must be dismissed for lack

of jurisdiction. See Fed. R. App. P. 4(a)(1)(B).

I.

Lizardo was convicted of conspiracy to possess with

intent to distribute cocaine, 21 U.S.C. § 846, conspiracy to

import cocaine into the United States, id. § 963, and possession

with intent to distribute, id. § 841(a)(1). On August 16, 2002,

Lizardo moved to vacate his sentence under 28 U.S.C. § 2255.

The District Court denied the petition on January 25, 2008. On

February 29, 2008, Lizardo sought reconsideration, which was

denied on March 17, 2008. A few weeks later, on April 7, 2008,

Lizardo filed his notice of appeal, challenging the denial of his

motion for reconsideration and his § 2255 petition. On May 16,

2008, Lizardo sought a certificate of appealability from this

Court. We granted one on September 29, 2008.5

5

The certificate of appealability did not certify the issue

of whether the District Court erroneously denied Lizardo’s

motion for reconsideration and Lizardo fails to raise that issue

in this appeal. Therefore, we need not address it. 28 U.S.C. §

4

II.

In a civil case involving the United States, a notice of

appeal must be filed within 60 days after the judgment or order

appealed from is entered. Fed. R. App. P. 4(a)(1)(B). In some

circumstances, where a party has timely filed a post-judgment

motion in the district court, the deadline for filing a notice of

appeal may be tolled until that motion has been decided:

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any

of the following motions under the Federal Rules

of Civil Procedure, the time to file an appeal runs

for all parties from the entry of the order

disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional

factual findings under Rule 52(b),

whether or not granting the motion

would alter the judgment;

(iii) for attorney’s fees under Rule

54 if the district court extends the

2253(c)(3); Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir.

2004); 3d Cir. L.A.R. 22.1(b); see Fed. R. App. P. 28(a)(5).

5

time to appeal under Rule 58;

(iv) to alter or amend the judgment

under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the

motion is filed no later than 10 days

after the judgment is entered.

Fed. R. App. P. 4(a)(4). At the time relevant to this appeal, Rule

59(b) required a party seeking reconsideration of an order to file

its Rule 59(e) motion within ten days of that order. Fed. R. Civ.

P. 59(b).

In Lizardo’s case, the following timeline of events

unfolded:

January 25, 2008 The District Court denied Lizardo’s

§ 2255 petition.

February 8, 2008 Deadline for filing a motion for

reconsideration under Rule 59(e)

(ten days from the January 25, 2008

order).

February 29, 2008 Lizardo moved for reconsideration

under Rule 59(e).

6

March 17, 2008 The District Court denied Lizardo’s

motion for reconsideration.

March 25, 2008 If there is no tolling under Rule

4(a)(4)(A), then the time for filing

a notice of appeal expires (60 days

from the January 25, 2008 order).

April 7, 2008 Lizardo filed a notice of appeal to

this Court.

May 16, 2008 If there is tolling under Rule

4(a)(4)(A), then the time for filing

a notice of appeal expires (60 days

from the March 17, 2008 order).

If Lizardo’s motion for reconsideration tolled the time for filing

a notice of appeal, his notice of appeal was timely. If it did not,

his notice of appeal was untimely and we lack jurisdiction. Fed.

R. App. P. 4(a)(1)(B); 28 U.S.C. § 2107(b); see Bowles v.

Russell, 551 U.S. 205, 212-13 (2007) (explaining that

procedural rules grounded in statutes are jurisdictional).

Lizardo argues that the Government waived its right to

object to the tolling of the notice of appeal deadline because it

did not object to his untimely Rule 59(e) motion in the District

7

Court.6 The “question [of] whether [Lizardo]’s notice of appeal

was timely is a question of law over which we exercise plenary

review.” DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d

209, 213 (3d Cir. 2007).

Rule 59(e) is a claim-processing rule, not a jurisdictional

rule, so objections based on the timeliness requirement of that

rule may be forfeited. But the forfeiture of a timeliness

objection in the district court does not render an untimely

motion timely for purposes of Rule 4(a)(4)(A) in this Court. As

6

In the alternative, Lizardo argues that Rule 4 denied

him due process because it did not provide him enough time to

file a motion for reconsideration. Because that issue was not

certified for appeal, we need not address it. 28 U.S.C. §

2253(c)(3); Villot, 373 F.3d at 337 n.13; 3d Cir. L.A.R. 22.1(b);

see Fed. R. App. P. 28(a)(5). We also note that Lizardo’s

alleged due process violation is based on assumptions that he

concedes are unsupported by the record. Lizardo assumes that

(1) the January 25, 2008 order was not mailed to him until

January 28, 2008, (2) it would take five to seven business days

for the January 25, 2008 order to reach an address in the Virgin

Islands, and (3) delivery to a prison inmate would take

additional time. Based on these assumptions, he argues that it

would not be unreasonable to find that the January 25, 2008

order did not arrive until after February 11, 2008. We decline

to engage in such speculation. Moreover, even if we credited

these assumptions and evaluated his claim on the merits, Lizardo

does not cite any supporting legal authority for his claim.

8

such, the Government’s failure to object to Lizardo’s untimely

Rule 59(e) motion in the District Court did not foreclose its

ability to challenge the timeliness of that motion for the

purposes of tolling under Rule 4(a)(4)(A).

A.

Lizardo’s Rule 59(e) motion was untimely. He filed his

motion for reconsideration over a month after the District Court

denied his § 2255 petition, well after the ten days provided by

the rule. Fed. R. Civ. P. 59(b). The Government did not object

to Lizardo’s motion as untimely and the District Court denied

the motion on the merits.

Under our pre-Bowles precedent, “any substantive action

a court t[ook] on an untimely motion [would have been deemed]

a nullity.” Smith v. Evans, 853 F.2d 155, 159 (3d Cir. 1988)

(internal quotation marks omitted). Thus, “[a]n untimely

motion, even if acted upon by the district court, [could not] toll

the time for filing a notice of appeal,” id. at 157. We reached

these conclusions based on our understanding that a “Rule 59(e)

motion must be served within ten days of entry of judgment”

because “[t]he ten day period is jurisdictional, and cannot be

extended in the discretion of the district court.” Id. (internal

quotation marks omitted). Were we to follow this approach, we

would dismiss Lizardo’s appeal for lack of jurisdiction because

Rule 59(e)’s ten day time limit, applied as a jurisdictional rule,

would have rendered the motion for reconsideration a nullity.

9

Lizardo would not be able to invoke Rule 4(a)(4)(A)’s tolling

provision and his notice of appeal would be untimely. While the

result we reach today is the same, we can no longer treat Rule

59(e) as a jurisdictional rule, nor view Lizardo’s untimely

motion for reconsideration as a nullity.

What constitutes a jurisdictional rule has undergone

significant change in recent years. The Supreme Court’s

decisions in Bowles, Eberhart v. United States, 546 U.S. 12

(2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443 (2004),

require us to depart from our pre-Bowles approach.7 Rule 59(e)

can no longer be deemed a jurisdictional rule. The Bowles

Court explained that time limits that are not based on a statute,

such as the one governing Rule 59(e), are not jurisdictional

rules, but claim-processing rules. See Bowles, 551 U.S. at

210-11. “[S]tatute-based filing period[s],” on the other hand,

are jurisdictional. Id. at 212. Compare id. at 213 (holding that

failure to file notice of appeal in accordance with 28 U.S.C. §

2107(c) and Rule 4(a)(6) resulted in an error of “jurisdictional

7

Although Internal Operating Procedure 9.1 generally

bars us from “overrul[ing] the holding in a precedential opinion

of a previous panel” without “en banc reconsideration,” 3d Cir.

IOP § 9.1, “a panel of our Court may decline to follow a prior

decision of our Court without the necessity of an en banc

decision when the prior decision conflicts with a Supreme Court

decision.” United States v. Tann, 577 F.3d 533, 541 (3d Cir.

2009).

10

magnitude”), with Kontrick, 540 U.S. at 452-56 (holding that

Rule 4004 of the Federal Rules of Bankruptcy Procedure was

not jurisdictional in part because it was not grounded in a

statute).

According to Bowles, “court-promulgated rules,” 551

U.S. at 211-12, are distinct from “limits enacted by Congress,”

and should not be treated as jurisdictional rules, id. at 212. For

example, “the rule-based time limit for criminal cases,” a court-

promulgated rule, “may be waived because ‘ . . . procedural

rules adopted by the Court for the orderly transaction of its

business are not jurisdictional and can be relaxed by the Court

in the exercise of its discretion . . . .’” Id. (quoting Schacht v.

United States, 398 U.S. 58, 64 (1970)). Similarly, Rule 4004 of

the Federal Rules of Bankruptcy Procedure, a rule that sets a

deadline for objecting to a debtor’s discharge, Fed. R. Bankr. P.

4004, was deemed a claim-processing rule, and did not affect a

court’s jurisdiction. Kontrick, 540 U.S. at 452-56.

Rule 59(e) is akin to Rule 4004 of the Federal Rules of

Bankruptcy Procedure. Both rules were promulgated by the

Supreme Court under the Rules Enabling Act. Compare 28

U.S.C. §§ 2071-2072 (Rule 59), with 28 U.S.C. § 2075 (Rule

4004). Neither rule extends or limits the jurisdiction of the

courts. Kontrick, 540 U.S. at 453 (noting that “it is axiomatic

that [rules promulgated under the Rules Enabling Act] do not

create or withdraw federal jurisdiction”) (internal quotation

marks omitted). Compare Fed. R. Bankr. P. 9030 (“The[]

11

[Federal Rules of Bankruptcy Procedure] shall not be construed

to extend or limit the jurisdiction of the courts or the venue of

any matters therein.”), with Fed. R. Civ. P. 82 (“The[] [Federal

Rules of Civil Procedure] do not extend or limit the jurisdiction

of the district courts or the venue of actions in those courts.”).

Therefore, like Bankruptcy Rule 4004, Rule 59(e)’s filing

deadline is a “claim-processing rule[] that do[es] not delineate

what cases . . . courts are competent to adjudicate.” Kontrick,

540 U.S. at 454;8 Nat’l Ecological Found. v. Alexander, 496

F.3d 466, 475-76 (6th Cir. 2007) (holding that Rule 59(e) is a

claims processing rule); First Ave. W. Bldg., LLC v. James (In

re Onecast Media, Inc.), 439 F.3d 558, 562 (9th Cir. 2006)

(same); see Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 618

(8th Cir. 2008) (holding that Fed. R. Civ. P. 50(b) is a claim-

processing rule).

Because Rule 59(e) is a claim-processing rule, an

objection based on the untimeliness of a Rule 59(e) motion may

be forfeited. See Eberhart, 546 U.S. at 19. “[W]here the

Government fail[s] to raise a defense of untimeliness until after

the District Court ha[s] reached the merits, it forfeit[s] that

defense.” Id. In this case, the District Court denied the motion

for reconsideration after considering its merits. Thus, the

8

A similar comparison can be made to the rule at issue

in Eberhart. See 546 U.S. at 15-20. There, the Supreme Court

held that Rule 33 of the Federal Rules of Criminal Procedure is

a claim-processing rule. Id. at 13.

12

Government forfeited its ability to challenge Lizardo’s motion

for reconsideration as untimely in the District Court.

Having established that Rule 59(e) is a claim-processing

rule and that a timeliness objection to a Rule 59(e) motion may

be forfeited, we turn to the question of whether the

Government’s failure to object to Lizardo’s untimely motion for

reconsideration in the District Court forfeited that objection for

purposes of Rule 4(a)(4)(A).

B.

Rule 4(a)(4)(A)(iv) states that “[i]f a party timely files in

the district court [a motion to alter or amend the judgment under

Rule 59], the time to file an appeal runs for all parties from the

entry of the order disposing of the last such remaining

motion[.]” Fed. R. App. P. 4(a)(4)(A) (emphasis added). An

untimely Rule 59(e) motion does not toll the time for filing an

appeal under Rule 4(a)(4)(A). This is true even if the party

opposing the motion did not object to the motion’s untimeliness

and the district court considered the motion on the merits. See

Browder v. Ill. Dep’t of Corr., 434 U.S. 257, 264-65 (1978);

Garcia-Velazquez v. Frito Lay Snacks Carribean, 358 F.3d 6,

10-11 (1st Cir. 2004); Panhorst v. United States, 241 F.3d 367,

370 (4th Cir. 2001); Wight v. BankAmerica Corp., 219 F.3d 79,

84 (2d Cir. 2000); cf. Gutierrez v. Johnson & Johnson, 523 F.3d

187, 194 (3d Cir. 2008) (“[T]he fact that [a] motion was timely

for the purposes of the District Court’s schedule does not

13

necessarily make it timely for an appeal to this Court.”).

Lizardo urges us to follow the Sixth Circuit, which held

that “where a party forfeits an objection to the untimeliness of

a Rule 59(e) motion [in the district court], that forfeiture makes

the motion ‘timely’ for the purpose of Rule 4(a)(4)(A)(iv).”

Nat’l Ecological Found., 496 F.3d at 476. That Court could

“discern no reason for holding that an otherwise properly filed

motion that was considered by the district court would fail to toll

the time for filing a notice of appeal.” Id. There are several

reasons why we depart from the Sixth Circuit’s approach.

First, it creates a disparity in treatment between the first

five types of post-judgment motions and the last type listed

under Rule 4(a)(4)(A), Rule 60 motions. Under Rule

4(a)(4)(A)(vi), in its current form, this Court, not the district

court, is required to determine whether the Rule 60 motion was

filed “no later than 28 days after the judgment [wa]s entered.”

Fed. R. App. P. 4(a)(4)(A)(vi) (2010). Thus, the circumstances

of the litigation in the district court are irrelevant to whether a

Rule 60 motion is timely for purposes of Rule 4(a)(4)(A).

Under the Sixth Circuit’s approach, however, the timeliness of

the other post-judgment motions would be determined based on

the proceedings in the district court. Whether those motions

were timely filed would depend in part upon the quality of the

party opposing the motion’s counsel at the district court. If that

party’s counsel failed to object to the timeliness of the motion,

we would be forced to deem the time to file a notice of appeal

14

tolled. There is no reasoned explanation for treating Rule 60

motions differently from the other motions listed under Rule

4(a)(4)(A).

In fact, the disparity would frustrate one of Rule

4(a)(4)(A)’s purposes—to provide the same deadline for all

post-judgment motions listed under that rule. The Advisory

Committee’s notes on the 2009 amendments to Rule 4 state that

section (a)(4)(A)(vi) was amended to match the timeline of the

other post-judgment motions that provide for tolling:

Formerly, the time limit under subdivision

(a)(4)(A)(vi) was 10 days, reflecting the 10-day

limits for making motions under Civil Rules

50(b), 52(b), and 59. Subdivision (a)(4)(A)(vi)

now contains a 28-day limit to match the revisions

to the time limits in the Civil Rules.

Fed. R. App. P. 4 (2010) (Notes of Advisory Committee on

2009 Amendments). Dating back to at least 1995, the

amendments to Rule 4 have repeatedly sought to “standardize

the time in which postjudgment motions must be made” under

Rule 4(a)(4)(A). 16A Charles A. Wright, Arthur R. Miller,

Edward H. Cooper & Catherine T. Struve, Federal Practice and

Procedure: Jurisdiction and Related Matters § 3950.4 at 330

(4th ed. 2008). This interest in a uniform deadline would be

defeated by an approach to tolling that is largely dependent on

what occurred in the district court for Rule 4(a)(4)(A)(i) through

(v), but is based solely on our own timing calculation for Rule

15

4(a)(4)(A)(vi).

In addition, the Sixth Circuit’s approach creates

uncertainty in the appeal timeline. The 2009 amendments to the

Federal Rules of Civil Procedure, which, inter alia, extended the

time for filing a Rule 59(e) motion from ten to twenty-eight

days, show that Rule 4 is intended to enforce the deadlines

provided in the Federal Rules of Civil Procedure, not vary them

based on the happenstance of a particular litigation. In

discussing the extension of time for filing a Rule 59(e) motion,

the Advisory Committee Notes explain that the time period to

file such a motion is “particularly sensitive because Appellate

Rule 4 integrates the time to appeal with a timely motion under

[Rule 59].” Fed. R. Civ. P. 59 (2010) (Notes of Advisory

Committee on 2009 Amendments). Indeed, Rule 4’s main

purpose is “to set a definite point of time when litigation shall

be at an end[.]” Browder, 434 U.S. at 264 (internal quotation

marks omitted). In furtherance of this purpose, the 2009

amendment extending the filing deadline for a Rule 59(e)

motion from ten to twenty-eight days was partially motivated by

the desire to provide additional time to file the motion while not

injecting uncertainty into the appeal timeline by granting the

district court discretion to set any deadline for the motion’s

filing. “Rather than introduce the prospect of uncertainty in

appeal time by amending Rule 6(b) to permit additional time,”

Fed. R. Civ. P. 59 (2010) (Notes of Advisory Committee on

2009 Amendments)—by, say, permitting an extension of time to

file a Rule 59(e) motion for “good cause,” as district courts are

16

permitted to do for some other motions, Fed. R. Civ. P.

6(b)(1)—Rule 6(b)’s prohibition on the extension of time to file

a Rule 59(e) motion was specifically preserved, Fed. R. Civ. P.

59 (2010) (Notes of Advisory Committee on 2009

Amendments). Fed. R. Civ. P. 6(b)(2) (“A court must not

extend the time to act under Rule[] . . . 59[(e).]”). Holding that

an untimely Rule 59(e) motion is timely for purposes of Rule

4(a)(4)(A) by virtue of the opposing party’s failure to object to

that untimeliness in the district court would accomplish the

opposite result of that intended by the 2009 amendments. The

“uncertainty in appeal time,” Fed. R. Civ. P. 59 (2010) (Notes

of Advisory Committee on 2009 Amendments), would be

embedded in the litigation process. Accordingly, we reject

Lizardo’s request that we follow the Sixth Circuit’s approach.

III.

We hold that an untimely Rule 59(e) motion, even one

that was not objected to in the district court, does not toll the

time to file a notice of appeal under Rule 4(a)(4)(A). The

Government’s forfeiture of the timeliness objection to Lizardo’s

Rule 59(e) motion in the District Court did not forfeit its

timeliness challenge based on Rule 4(a)(4)(A) made before this

Court. Because Lizardo’s untimely Rule 59(e) motion did not

toll the time to file a notice of appeal, his notice of appeal was

untimely and we must dismiss his appeal for lack of

17

jurisdiction.9

9

We express no opinion on whether Rule 4(a)(4)(A) is

a claim-processing or jurisdictional rule. Indeed, any such

expression would be dicta because it is undisputed that the

Government properly raised the timeliness challenge based on

Rule 4(a)(4)(A) before this Court.

18

Lizardo v. USA, No. 08-2044

JORDAN, Circuit Judge, Concurrence and Dissent

While I agree with my colleagues that Lizardo’s untimely

motion for reconsideration – even though it was not objected to

in the district court – does not toll the time for filing an appeal

under Appellate Rule 4(a)(4)(A), and that therefore his appeal

from the District Court’s denial of his 28 U.S.C. § 2255 petition

is untimely, I believe that the Supreme Court’s decision in

Bowles v. Russell, 551 U.S. 205, 209 (2007), compels the

conclusion that Appellate Rule 4(a)(4)(A) is a claims-processing

rule and that defenses under that rule can, in certain instances,

be waived. Thus, I believe that waiver of a timeliness objection

can indeed be made under Appellate Rule 4(a)(4)(A), and so

write separately. Nevertheless, because the government’s

timeliness objection was not effectively waived in this case, I

respectfully concur in the portion of the Majority’s opinion

holding that there is no jurisdiction over Lizardo’s appeal from

the District Court’s denial of his § 2255 petition. To the extent

that the Majority holds that we do not have jurisdiction over

Lizardo’s appeal from the District Court’s denial of his motion

for reconsideration, however, I respectfully dissent.

I. Lizardo’s Appeal from the District Court’s Denial of

his § 2255 Petition and Tolling 1

1

Because this case centers so significantly on timing, I

note the following timeline as background for the discussion

that follows:

1

August 16, 2002: Lizardo moves to vacate his sentence

under § 2255.

January 25, 2008: The District Court denies his § 2255

petition.

February 8, 2008: This is the deadline for Lizardo to file his

Rule 59(e) motion for reconsideration.

(Note: the timeline contained in Rule 59(e)

was 10 days from entry of judgment at the

time of Lizardo’s case; today, it is 28

days).

February 29, 2008: Lizardo files a pro se Rule 59(e) motion

for reconsideration.

March 17, 2008: The District Court denies Lizardo’s Rule

59(e) motion.

March 25, 2008: This is the deadline for Lizardo to file an

appeal from the January 25 denial of his

§ 2255 petition, assuming there is not

tolling based on his Rule 59(e) motion.

April 7, 2008: Lizardo files a pro se notice of appeal

from (1) the District Court’s January 25

denial of his §2255 petition AND (2) the

District Court’s March 17 denial of his

Rule 59(e) motion.

2

In Bowles, the Supreme Court held that the time for filing

a notice of appeal in civil cases, set forth in Appellate Rule

4(a)(6), is “mandatory and jurisdictional” and thus not waivable.

551 U.S. at 209 (quotations omitted). The Supreme Court

grounded its holding in the fact that the time limitation in

Appellate Rule 4(a)(6) “is set forth in a statute, 28 U.S.C.

§ 2107.” Id. at 213. The Court expressly noted “the

jurisdictional distinction between court-promulgated rules,”

which are not statute-driven, and “limits enacted by Congress,”

such as Appellate Rule 4(a)(6). Id. at 211-12. The Court

referred to the court-promulgated rules as “claims-processing”

or “nonjurisdictional” rules and it concluded that those rules

“may be waived.” Id. at 212, 216. On the other hand, the Court

held that a litigant subject to a time frame set by statute “cannot

May 16, 2008: This is the deadline for Lizardo to file an

appeal if there is tolling based on his Rule

59(e) motion.

May 16, 2008: Lizardo seeks a certificate of appealability

(“COA”) from our court.

Sept. 29, 2008: We grant the COA.

3

rely on forfeiture or waiver 2 to excuse his lack of compliance

with the statute’s time limitations.” Id. at 213.

Although 28 U.S.C. § 2107 sets forth the time for taking

an appeal, it does not contain the tolling provision found in

Appellate Rule 4(a)(4)(A),3 nor does it embody in any way the

2

The Supreme Court did not distinguish between the

terms “waiver” and “forfeiture,” and used them together to

describe what can occur under a claims-processing rule. For

purposes of simplicity, I use the term “waiver,” although, in

certain instances, the difference between a knowing and

deliberate waiver versus an inadvertent forfeiture may be

significant.

3

Appellate Rule 4(a)(4)(A) provides that:

If a party timely files in the district court any of the following

motions under the Federal Rules of Civil Procedure, the time to

file an appeal runs for all parties from the entry of the order

disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under

Rule 52(b), whether or not granting the motion would

alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court

extends the time to appeal under Rule 58;

4

rules of civil procedure listed in Appellate Rule 4(a)(4)(A), such

as Federal Rule of Civil Procedure 59(e), the rule at issue in the

present matter.4 As an initial matter, then, I believe that Bowles

requires us to conclude that, because the time periods noted in

Appellate Rule 4(a)(4)(A) are not set forth in a statute, the rule

must be classified as claims-processing rather than

jurisdictional. My colleagues in the Majority recognize that

Rule 59(e) is a “claim[s]-processing rule,” and that therefore,

“an objection based on the untimeliness of a Rule 59(e) motion

may be forfeited.” Maj. Op. at 9. Yet, they “express no opinion

on whether Rule 4(a)(4)(A) is a claim-processing or

jurisdictional rule.” Id. at 9 n. 9. In other words, the Majority

declines to state explicitly that Appellate Rule 4(a)(4)(A) is a

claims-processing rule that allows a party to waive a timeliness

objection. Given the “jurisdictional” versus “claims-processing”

divide delineated in Bowles, however, there is no basis to draw

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later

than 28 days after the judgment is entered.

4

Federal Rule of Civil Procedure 59(e) addresses what are

sometimes called motions for reconsideration, and provides that

“[a] motion to alter or amend a judgment must be filed no later

than 28 days after the entry of the judgment.” At the time that

Lizardo filed his motion for reconsideration, the timeframe set

by the rule was 10 days rather than 28 days.

5

a distinction between Rule 59(e), a rule not dictated by statute,

and Appellate Rule 4(a)(4)(A), another rule not dictated by

statute. Accordingly, I see no way to avoid the conclusion that

Appellate Rule 4(a)(4)(A), like Rule 59(e), is a claims-

processing rule. And, if one accepts that 4(a)(4)(A) is a claims-

processing rule, it follows that a defense under that rule “may be

waived.” Bowles, 551 U.S. at 212; see also Eberhart v. United

States, 546 U.S. 12, 15 (2005) (describing how

“claim-processing rules ... may be unalterable on a party’s

application but can nonetheless be forfeited if the party asserting

the rule waits too long to raise the point.” (internal quotations

omitted)).

In the present case, the government did not object to the

timeliness of Lizardo’s motion for reconsideration in the District

Court. Thus, the government waived its affirmative defense of

untimeliness as to the Rule 59(e) motion in the District Court.

The Majority recognizes as much, Maj. Op. at 3; 12-13, but

nevertheless holds that “an untimely Rule 59(e) motion, even

one that was not objected to in the district court, does not toll the

time to file an appeal under Rule 4(a)(4).” Maj. Op. at 17.

To the extent that the Majority’s opinion may be read as

implying that a party can never waive an objection under

Appellate Rule 4(a)(4)(A), I cannot agree. The waiver available

to the government under Appellate Rule 4(a)(4)(A) could have

been exercised had the government chosen not to assert its

affirmative defense of untimeliness in our Court. However, I do

agree with the Majority in its holding that what suffices as

waiver for purposes of Rule 59(e) does not necessarily suffice

as a waiver under Rule 4(a)(4)(A). In other words, as the

6

Majority states, even when an opposing party fails to object to

the timeliness of a Rule 59(e) motion in the district court, and

the district court rules on that motion on the merits, the opposing

party can still raise the issue of timeliness with regard to

Appellate Rule 4(a)(4)(A).

Here, the government evidently chose not to object to the

timeliness of Lizardo’s motion for reconsideration in the District

Court, though it could have raised the 10-day time bar then in

place under Rule 59(e). Given the different purpose of

Appellate Rule 4(a)(4)(A), however, the government was free to

assert the untimeliness of Lizardo’s notice of appeal from the

District Court’s denial of his § 2255 petition, and it did so in its

briefing after we issued a certificate of appealability (“COA”)

in this case.

Appellate Rule 4(a)(4)(A) should not be treated as

waived unless there has been an explicit assertion of waiver, or

the waiving party has briefed the merits of an appeal without

raising the affirmative defense of untimeliness.5 Here, the

5

The idea that, if an opposing party briefs the merits of an

appeal without raising the affirmative defense of untimeliness,

it should be treated as, in effect, a specific assertion of waiver,

is consistent with the District of Columbia Circuit’s reasoning

in Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007).

In Wilburn, as in the instant case, the opposing party did

not challenge the timeliness of Wilburn’s post-judgment motion

in the district court, which was in fact untimely. 480 F.3d 1144.

Nor did the opposing party raise the affirmative defense of

7

government never made an explicit assertion of waiver, nor did

it brief the merits of the appeal before we issued a COA.

Rather, the government was simply silent as to untimeliness

under Appellate Rule 4(a)(4)(A). While silence is enough to

effectuate waiver under Rule 59(e), there are good reasons to

untimeliness when Wilburn filed his notice of appeal. Id.

However, unlike the instant case, the opposing party in Wilburn

briefed the merits of the appeal without addressing the issue of

untimeliness. Id. at 1147.

In analyzing the issue of tolling, the Wilburn court began

by explicitly noting that “[t]he tolling language of Rule

4(a)(4)(A)(vi) fits the Court’s description of a claim-processing

rule.” Id. at 1145. The court then noted that the opposing party

“did not challenge the timeliness of Wilburn’s appeal in his

initial brief to this court ... [but i]nstead, he addressed only the

merits of the appeal.” Id. at 1147. The court then held that,

“[a]lthough [the opposing party eventually] raised the timeliness

issue in response to our order to the parties to consider the effect

of [tolling] on this appeal ... the argument comes too late.” Id.

Accordingly, the Wilburn court held that, “[b]ecause [the

opposing party] failed to timely assert the timeliness defense

afforded by Rule 4(a)(4)(A)(vi) [in its merits briefing], ...

Wilburn’s [post-judgment motion] to have tolled the period to

appeal ... .” Id.

Unlike in Wilburn, here, the government never briefed

the merits of the appeal without raising its timeliness objection.

Therefore, the government has not waived its objection under

Appellate Rule 4(a)(4)(A).

8

say it is not enough to effectuate waiver under Appellate Rule

4(a)(4)(A).

First, those two rules are aimed at different objectives.

The time limit contained in Rule 59(e) establishes a check on a

district court’s ability to revisit its final judgment.

Considerations under that rule are made on a specific, case-by-

case basis. Appellate Rule 4(a)(4)(A), on the other hand, goes

to the manner in which appeals are processed from all district

court cases. Appellate Rule 4(a)(4)(A) is thus a systemic and

organizational rule. Its goals are to ensure that appeals are

treated in an equitable manner and to bring certainty to the

appeals process. That is something broader than the aim of Rule

59(e), which allows a limited opportunity for a district court to

correct a specific error in a specific case. Accordingly, waiver

under Appellate Rule 4(a)(4)(A) is rightly subject to more

stringent requirements than waiver under Rule 59(e). That a

party waived by silence its defense to the district court’s ability

to reconsider its final judgment should not dictate the

consideration we give to whether a party has timely filed an

appeal in our court. Indeed, even an explicit waiver of a 59(e)

timeliness objection ought not be sufficient to overcome the

systemic and institutional concerns that warrant giving

Appellate Rule 4(a)(4)(A) more rigid application.

Second, if we were to hold that an opposing party’s

failure to object to the timeliness of a Rule 59(e) motion in the

district court prevents that party from challenging on appeal the

timeliness of that motion for purposes of tolling – the Sixth

Circuit’s approach in National Ecological Foundation v.

Alexander, 496 F.3d 466 (6th Cir. 2007) – we must assume the

9

existence of an opposing party. There are, however, certain

contexts in which no opposing party is present. For example, in

the context of habeas corpus and in Prison Litigation Reform

Act cases, district courts can and frequently do dismiss a

plaintiff’s or petitioner’s initial pleading as frivolous before that

pleading has been served on the government. See 28 U.S.C.

§ 2243; 42 U.S.C. § 1997e. In those cases, a plaintiff or

petitioner may file an untimely motion for reconsideration of the

district court’s dismissal, and, even if the district court rules on

that motion on the merits, we may still dismiss an appeal based

on the untimeliness of the underlying motion.6 So, unlike

plaintiffs in other civil cases, who would benefit under the Sixth

Circuit’s approach from an opposing party’s waiver of a

timeliness objection, the plaintiff or petitioner without an

opposing party cannot have the benefit of such a waiver. That

approach thus creates two classes of defendants: those with an

opposing party who can grant them the benefit of waiver, and

those without any opportunity for grace because there is no one

to grant it. We should not assume that Congress intended to

create two classes of appellants, those with access to a

possibility of waiver and those without. Prisoners and habeas

petitioners already face – by Congress’s considered choice –

carefully placed screens to filter the claims they wish to bring.

6

A similar distinction can be found in the in forma

pauperis context, 28 U.S.C. § 1915(e), in which the court has

authority to dismiss frivolous complaints before they are served

on a defendant. Here too, there may be no opposing party in a

situation where the Court dismisses a claim and then the party

moves for reconsideration.

10

We should be leery of creating new impediments for them on

our own.

Third, I agree with the Majority that an approach like that

taken by the Sixth Circuit in National Ecological Foundation

would result in an unacceptable uncertainty in the appellate

process. There is an obvious uncertainty that would ensue

should the timeliness of an appeal be predicated on the

idiosyncratic motions practice of litigants before the district

court. Likely for that reason, Appellate Rule 4(a)(4)(A) states

that, “[i]f a party timely files” any of the motions listed in the

rule, “the time to file an appeal runs for all parties from the entry

of the order disposing of the last such remaining motion[.]”

(emphasis added). A simple textual approach, then, would

dictate that, as a general matter, a Rule 59(e) motion should only

be able to toll the time for filing an appeal if it is “timely,” i.e.,

filed within the timeframe dictated by Rule 59(e). Unless there

is a specific assertion of waiver (see supra note 5), parties

should be able to rely on that “timely” caveat in Appellate Rule

4(a)(4)(A). The rule itself thus lends further support to the

conclusion that a waiver in the Rule 59(e) context does not

11

translate into a waiver in the Appellate Rule 4(a)(4)(A) context.7

Finally, I also agree that embracing the National

Ecological Foundation approach would create an internal

inconsistency within Appellate Rule 4(a)(4)(A). Appellate Rule

4(a)(4)(A) lists six types of post-judgment motions that can toll

the time for filing an appeal, but only one of the six is

7

I recognize that an element of uncertainty results from

our approach as well. A reason frequently given for forcing

litigants to live with the positions they took in the district court

is that allowing a new position to be taken for the first time in

our Court works an unfairness to the party filing the motion who

proceeds in good faith reliance on what the opposing party did

or did not do in the district court. Here, we have a circumstance

where both parties and the District Court treated Lizardo’s

motion for reconsideration as valid, and addressed it on the

merits. See App. at 32 (“Having considered the premises, it is

hereby ORDERED that Lizardo’s motion for reconsideration is

denied.”). Allowing a timeliness objection to be raised now, for

the first time on appeal, means that, even though the parties and

the Court proceeded with the motion for reconsideration,

deciding it as if it were timely, and even though they were all

free to do that, Lizardo should nevertheless have known to file

a notice of appeal before the motion to reconsider was decided.

However, this uncertainty results from a party’s – in this case,

Lizardo’s – failure to file a Rule 59(e) motion in a timely

manner, and, importantly, this kind of uncertainty exists on a

case-by-case basis. If we have a clear rule, we are likely to have

fewer cases like this one.

12

accompanied by a time limit. Specifically, Appellate Rule

4(a)(4)(A)(vi) provides that a Rule 60 motion can toll the time

for filing an appeal, but only if it is “filed no later than 28 days

after the judgment is entered.” Based on that language, our

Court, not the district court, is required to determine whether the

Rule 60 motion was filed within that 28-day time frame. On the

other hand, were we to adopt the Sixth Circuit’s approach, the

timeliness of the other five post-judgment motions – or at least

the Rule 59(e) motions – would be determined based on the

proceedings of the district court. Thus, an internal inconsistency

would result because a Rule 60 motion can only toll the time for

filing an appeal if that motion was filed within 28 days of the

entry of judgment, whether or not the opposing party fails to

object to untimeliness before the district court, whereas the

failure to object to a Rule 59(e) motion would render that

motion timely for the purposes of tolling.8

8

I do concede, however, that a Rule 60 motion is, by its

nature, a different type of post-judgment relief than the other

motions listed in Appellate Rule 4(a)(4)(A). The filing of a

Rule 60 motion is not tied to a litigation event, but to events that

occurred outside the litigation context. Thus, while other post-

judgment motions are accompanied in the Federal Rules of Civil

Procedure by specified time limits that begin to run when the

district court enters final judgment or grants or denies a discrete

motion, certain types of motions under Rule 60(b) must simply

be made “within a reasonable time” after the entry of judgment.

F ED. R. C IV. P. 60(c)(1). As a result, it was likely necessary for

the drafters of the Federal Rules of Appellate Procedure to

incorporate into the Appellate Rules a separate time period

13

In sum, I would hold that an untimely motion for

reconsideration – even when not objected to in the district court

– does not toll the time for filing an appeal under Appellate

Rule 4(a)(4)(A), unless there has been a clear assertion of

waiver, either by an explicit statement of waiver or by merits

briefing that fails to address the issue of timeliness. Appellate

Rule 4(a)(4)(A) is a claims-processing rule,9 but, in this

within which the filing of a Rule 60(b) motion will toll the

period of filing a notice of appeal with respect to the final

judgment. Otherwise, as a technical matter, a party could file a

Rule 60(b) motion years after entry of a final judgment, and then

argue upon disposition of that motion that they had a right to

appeal the original judgment.

9

The Majority says that a statement that Appellate Rule

4(a)(4)(A) is a claims-processing rule would be dicta, because

here, the Government raised the issue of timeliness under Rule

4(a)(4)(A). Maj. Op. at189 n.9. Perhaps this is so, if the basis

for the Majority’s holding is that the Government made a proper

timeliness objection under Appellate Rule 4(a)(4)(A). However,

I write separately to make clear that, in my view, there are

circumstances in which such an objection could in fact be

waived. I write to ensure that we do not leave the impression

that Appellate Rule 4(a)(4)(A) is jurisdictional, which one might

understand from the Majority’s opinion.

Further, while the Majority recognizes that its approach

departs from the Sixth Circuit’s approach, the Majority also

departs from the approaches embraced by the District of

Columbia Circuit in Wilburn, 480 F.3d at 1140, and the Eighth

14

instance, a timeliness defense under that claims-processing rule

was not waived. For these reasons, I respectfully concur.

Circuit in Dill v. General American Life Insurance Co., 525

F.3d 612 (8th Cir. 2008). While those two decisions are

certainly distinguishable (for reasons that need not be addressed

here), they are rightly explicit about Appellate Rule 4(a)(4)(A)

being a claims-processing rule, and they embrace the principle

that a defense under Appellate Rule 4(a)(4)(A) may accordingly

be waived. See Wilburn, 480 F.3d at 1146 (stating that,

“[b]ecause we conclude that the time limit of Rule

4(a)(4)(A)(vi) constitutes a claim-processing rule, the issue

becomes whether [the opposing party] forfeited the right to

assert it); Dill, 525 F.3d at 618-19 (“[B]ecause the rules

[contained in Appellate Rule 4(a)(4)(A)] are nonjurisdictional,

these timeliness requirements may be forfeited if they are not

timely raised. Therefore, we must decide whether Dill timely

raised the untimeliness of ... [the opposing party’s post-

judgment] motion. If he did, he is assured relief ... [but if he]

wait[ed] too long to raise the point ... the defense was

forfeited.”) (citations omitted) (fifth alteration in original).

I agree with those courts’ explicit discussions about

Appellate Rule 4(a)(4)(A) as a claims-processing rule, and their

recognition that waiver is indeed possible, and I believe we

should clearly adopt that position.

15

II. Lizardo’s Appeal from the District Court’s Denial of

his Motion for Reconsideration

Lizardo appealed from both the District Court’s January

25, 2008 denial of his § 2255 motion and the District Court’s

March 17, 2008 denial of his Rule 59(e) motion. We must

therefore ask whether Lizardo’s appeal of his motion for

reconsideration is timely if measured from the District Court’s

denial of that motion, separate and apart from tolling under

Appellate Rule 4(a)(4)(A).

The Majority holds, as it must, that Rule 59(e) is a

claims-processing rule. It therefore concludes that “we can no

longer treat Rule 59(e) as a jurisdictional rule, nor view

Lizardo’s untimely motion for reconsideration as a nullity.”

Maj. Op. at 10. If we cannot view Lizardo’s motion for

reconsideration as a nullity (i.e., we must view it as legitimate),

we also cannot view the District Court’s denial of that motion

for reconsideration as a nullity. In other words, the District

Court’s denial of Lizardo’s motion for reconsideration is an

order from which an appeal can be taken.

Because the District Court’s denial of Lizardo’s motion

for reconsideration is a final order, Lizardo’s appeal as

measured from that denial is timely, and we have jurisdiction

over those issues he raised in his motion for reconsideration.10

10

Lizardo’s motion for reconsideration raised the same

underlying issue as his § 2255 petition, namely, that his counsel

deprived him of the right to testify. However, the standard of

16

The District Court denied Lizardo’s Rule 59(e) motion on

March 17, 2008 and Lizardo filed his pro se notice of appeal on

April 7, 2008, within the 60-day time period prescribed by

Appellate Rule 4.

The Majority does not address this issue explicitly, but in

a footnote states that “[t]he certificate of appealability did not

certify the issue of whether the District Court erroneously

denied Lizardo’s motion for reconsideration and Lizardo failed

to raise that issue on appeal.” Maj. Op. at 4-5 n.5. Therefore,

says the Majority, “we need not address it.” Id. Perhaps that

footnote can be read to mean that Lizardo’s appeal from the

denial of his motion for reconsideration is timely but that the

issue of whether the District Court erred in denying that motion

does not fall within the scope of our COA. If so, I disagree.

We granted the COA with regard to three specific

questions: (1) “whether the District Court applied the correct

standard in evaluating Lizardo’s claim that trial counsel

deprived him of his constitutional right to testify on his own

behalf”; (2) “whether Lizardo’s motion for reconsideration

affected the time for filing a notice of appeal”; and, (3) “whether

Lizardo’s notice of appeal was timely filed under the prison

mailbox rule.” App. at 13. The second and third of those

questions can and should be read to encompass the question of

whether Lizardo’s appeal, as measured from his motion for

review for denial of a motion for reconsideration is different

than that which would apply to an appeal from the denial of the

§ 2255 petition itself.

17

reconsideration, is timely. Particularly in the case of a pro se

appeal such as this,11 we should construe the COA to protect

Lizardo’s appellate rights. Cf. Ghana v. Holland, 226 F.3d 175,

180 (3d Cir. 2000) (discussing our willingness to “construe [a

litigant’s] pro se notice of appeal liberally to cover unspecified

prior orders that are related to the specified order that was

appealed from” (internal quotations and alterations omitted)).

Moreover, Lizardo did argue in his appellate brief that

the District Court erred in denying his motion for

reconsideration. See Appellant’s Op. Br. at 7-8 (“Further, the

District Court erred in concluding that [Lizardo’s] declaration

in support of his motion for reconsideration filed in response to

the District Court’s Order denying [Lizardo’s] § 2255 petition

did not allege sufficient prejudice under Strickland [] ... .”). In

fact, a section of his brief is devoted to why the District Court

allegedly erred in denying his motion for reconsideration.

I would therefore construe the COA to encompass the

issue of whether the District Court erred in denying Lizardo’s

motion for reconsideration, and thus would say that Lizardo’s

appeal from the District Court’s denial of his motion for

reconsideration is timely. For that reason, I respectfully dissent

to the extent that the Majority holds that we do not have

11

Lizardo was pro se when he filed his supplemental

memorandum in support of his § 2255 petition, when he filed

his motion for reconsideration, and when he filed his notice of

appeal. He was, however, counseled in his briefing following

our issuance of the COA.

18

jurisdiction over Lizardo’s appeal from the District Court’s

denial of his motion for reconsideration.

19