United States v. Eric Kalb

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 17-1333

_______________

UNITED STATES OF AMERICA,

Appellant

v.

ERIC KALB

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-16-cr-00012-001)

District Judge: Honorable Gerald A. McHugh

_______________

Argued: November 6, 2017

Before: JORDAN, HARDIMAN, and

SCIRICA, Circuit Judges.

(Opinion Filed: May 31, 2018)

Louis D. Lappen

Acting United States Attorney

Robert A. Zauzmer [ARGUED]

Denise S. Wolf

Office of the United States Attorney

for the Eastern District of Pennsylvania

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellant

Brett G. Sweitzer [ARGUED]

Leigh M. Skipper

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street

Philadelphia, PA 19106

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

SCIRICA, Circuit Judge

In this government appeal under 18 U.S.C. § 3731, we

must decide if a motion for reconsideration, filed after the

statutory appeal period elapsed but considered on the merits,

nonetheless keeps the appeal period from expiring. Section

3731 imposes a thirty-day filing requirement, which can be

stopped by a timely filed motion for reconsideration. In this

case, the government filed a motion for reconsideration more

2

than thirty days after the District Court entered an order

granting defendant-appellee Eric Kalb’s motion to suppress.

The District Court denied the motion for reconsideration on

the merits, and the government appealed both orders.

Based on the statute’s text and structure, recent

clarifying opinions from the Supreme Court, and legislative

history, we believe the thirty-day period for appeal in § 3731

is jurisdictional. As to the timeliness of the government’s

motion, we conclude that a timely motion for reconsideration

under § 3731, for the purpose of rendering the order non-

final, is one made within the thirty-day appeal period. To

hold otherwise would rejuvenate an extinguished appeal

period. Accordingly, we will dismiss for lack of jurisdiction

the government’s appeal of the order granting Kalb’s

suppression motion. We will affirm the denial of the

government’s motion for reconsideration.

I.

Eric Kalb was stopped by Upper Merion Township

police in the early morning hours of September 13, 2014.

Prior to that stop, around 4:00 a.m., an unidentified caller to

the Upper Montgomery County 911 Call Center reported that

a man had been electrocuted near Valley Forge Park. He also

stated the man “may have been scrapping.”1 App. 289.

When asked for details, the caller was elusive. He claimed he

was calling from a store but that the store was closing. He

also refused to give his name and professed ignorance of the

1

“Scrapping” refers to the removal and sale of salvageable

scrap metals. “Scrapping” can be criminal if the metals are

removed from private property.

3

model of vehicle he was driving. Police were sent to the

scene of the electrocution and to the unidentified caller’s

location, which police identified as a fast food restaurant. At

Valley Forge Park, officers found a deceased man next to an

electrical box.

At the restaurant, the responding officer spoke with a

security guard who said a white male driving a small Ford

pickup truck had recently used the phone and driven away

onto Markley Street. The identifying information was

broadcast over the police radio. Approximately four minutes

later and only four blocks from the unidentified caller’s

location, an officer spotted a vehicle matching the broadcast

description—driven by Kalb—and stopped it. Kalb

immediately admitted he was the caller and his friend had

been electrocuted. He was taken to the Upper Merion

Township police station to give a statement. Kalb admitted to

driving his friend to the scrapping location, seeing his friend

“sitting in front of an electrical box” while it “was sparking,”

and driving to use a payphone to call 911. App. 85.

Kalb was indicted by a grand jury on charges of

depredation against United States property, 18 U.S.C. § 1361;

destruction of property on United States land, 18 U.S.C.

§ 1363; and aiding and abetting, 18 U.S.C. § 2.2

Subsequently, Kalb filed a pretrial motion to suppress

2

The District Court dismissed the § 1361 count for failure to

state an offense. The government did not appeal the

dismissal.

4

evidence obtained after police stopped his vehicle.3 After

conducting a suppression hearing, the court entered an order

granting the motion on October 21, 2016, followed by a

written opinion three days later.

The District Court held a conference call with counsel

and scheduled a status conference for November 29. During

the conference call, the government “sought leave to review

the transcript of the suppression hearing before proceeding.”

App. 13. On November 29, the government filed a motion to

reconsider the suppression order, and Kalb objected to its

filing as untimely. The District Court denied the motion to

reconsider its suppression order, thereby confirming its

suppression of the challenged evidence, on January 13, 2017.

In doing so, it rejected the defense’s untimeliness argument:

Preliminarily, the defense argues that the

Motion should be rejected as untimely. I

disagree. In a conference call with the Court on

October 29, 2016, the Government made clear

that it sought leave to review the transcript of

the suppression hearing before proceeding, and

the Court scheduled a status conference for

November 29. At a minimum, it would be

understandable if the Government interpreted

the Court’s actions as granting it a 30-day

extension. The transcript became available on

November 14, and the Government’s Motion

was filed on November 29, after providing

3

Kalb sought suppression of his statements to police and

physical evidence, specifically window panes found in the

bed of his pickup truck.

5

notice to the Court that it would be slightly

delayed because of a competing trial listing.

Rigid enforcement of the Local Rule[4]

governing timeliness of motions for

reconsideration would be inconsistent with the

collegial manner in which counsel have dealt

with each other, and dealt with the Court.

App. 13. On February 10, the government filed a notice of

appeal from the orders granting suppression and denying

reconsideration.

II.

The District Court had jurisdiction under 18 U.S.C.

§ 3231. Our jurisdiction over the government’s appeal of the

suppression order is contested but would arise under 18

U.S.C. § 3731. We exercise plenary review over the question

of whether a notice of appeal was timely filed. State Nat’l

Ins. Co. v. County of Camden, 824 F.3d 399, 404 (3d Cir.

2016).

We have jurisdiction under § 3731 to review the

District Court’s order denying the government’s motion for

reconsideration. “We review the denial of a motion for

reconsideration for abuse of discretion.” United States v.

4

Local Criminal Rule for the United States District Court for

the Eastern District of Pennsylvania 1.2 adopts Local Civil

Rule 7.1(g) covering motions for reconsideration. Per Local

Civil Rule 7.1(g), motions for reconsideration must be served

and filed within fourteen days after entry of the order

concerned.

6

Dupree, 617 F.3d 724, 732 (3d Cir. 2010).

III.

Under § 3731, the government is permitted to file

interlocutory appeals of district court orders suppressing or

excluding evidence:

An appeal by the United States shall lie to a

court of appeals from a decision or order of a

district court suppressing or excluding evidence

or requiring the return of seized property in a

criminal proceeding, not made after the

defendant has been put in jeopardy and before

the verdict or finding on an indictment or

information, if the United States attorney

certifies to the district court that the appeal is

not taken for purpose of delay and that the

evidence is a substantial proof of a fact material

in the proceeding. . . .

The appeal in all such cases shall be taken

within thirty days after the decision, judgment

or order has been rendered and shall be

diligently prosecuted.

18 U.S.C. § 3731 (emphasis added).

A.

We must first determine whether the thirty-day

limitation in § 3731 is a jurisdictional or a claim-processing

rule before addressing the timeliness of the government’s

7

motion for reconsideration. The parties agree the appeal

period is jurisdictional. Appellee’s Response Br. at 16;

Appellant’s Reply Br. at 1. We likewise conclude it is.

The distinction between a jurisdictional rule and a

claim-processing rule is significant. Objections based on a

tribunal’s lack of jurisdiction may be raised at any time, see

Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153

(2013), and courts are obligated to raise jurisdictional issues

sua sponte if not raised by the parties, see Hamer v.

Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017).

Further, courts may not extend jurisdictional deadlines for

equitable reasons. See United States v. Wong, 135 S. Ct.

1625, 1631 (2015). By contrast, a claim-processing rule

serves “to promote the orderly progress of litigation by

requiring that the parties take certain procedural steps at

certain specified times.” Hamer, 138 S. Ct. at 17 (quoting

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435

(2011)). “[P]roperly invoked,” such rules “must be enforced,

but they may be waived or forfeited” if not raised. See id.

(citing Manrique v. United States, 137 S. Ct. 1266, 1271–72)

(2017)). If not barred by Congress, the failure to comply with

claim-processing rules may be excused by courts. See Wong,

135 S. Ct. at 1631; see also Rubel v. Comm’r of Internal

Revenue, 856 F.3d 301, 304 (3d Cir. 2017).

To determine if a statutory deadline is jurisdictional,

we evaluate the “text, context, and relevant historical

treatment.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,

166 (2010) (citing Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 393–95 (1982)). The analysis is not always

straightforward. As the Supreme Court has observed,

“[w]hile perhaps clear in theory, the distinction between

8

jurisdictional conditions and claim-processing rules can be

confusing in practice. Courts—including this Court—have

sometimes mischaracterized claim-processing rules or

elements of a cause of action as jurisdictional limitations.”

Id. at 161 (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 511–

12 (2006)).

We are guided in our inquiry by the Supreme Court’s

ruling in Bowles v. Russell, 551 U.S. 205 (2007).5 In Bowles,

the Supreme Court addressed the ability of a district court to

reopen the period for appeal in civil cases. See id. at 207,

5

Bowles followed two cases, Kontrick v. Ryan, 540 U.S. 443

(2004), and Eberhart v. United States, 546 U.S. 12 (2005)

(per curiam), in which the Supreme Court attempted to clarify

its previous, “less than meticulous” use of the term

“jurisdictional.” Kontrick, 540 U.S. at 454. In Kontrick, the

Court held that the Federal Rules of Bankruptcy Procedure’s

time constraints for objections to discharge are not

jurisdictional. See id. The time limits at issue were

“prescribed by [the Supreme Court] for ‘the practice and

procedure in cases under title 11.’” Id. at 453 (quoting 28

U.S.C. § 2075). By contrast, the statutory provision granting

jurisdiction did not include a time limitation. Id. The

Supreme Court built on that reasoning in Eberhart. It held

that the time limitation on motions for a new trial under

Federal Rule of Criminal Procedure 33 is not jurisdictional,

see Eberhart, 546 U.S. at 19, because it “closely parallel[ed]”

the rule in Kontrick, which was not derived from a statute, id.

at 15. In doing so, it referenced the “imprecision” of the use

of “the term ‘jurisdictional’ to describe emphatic time

prescriptions in rules of court.” Id. at 18 (quoting Kontrick,

540 U.S. at 454).

9

209. By statute, implemented through Federal Rule of

Appellate Procedure 4(a)(6), a “district court may reopen the

time to file an appeal for a period of 14 days after the date

when its order to reopen is entered.” Bowles, 551 U.S. at

208; see also 28 U.S.C. § 2107(c). But, by order, the district

court in Bowles reopened the appeal period for seventeen

days. 551 U.S. at 207. The appeal was filed within that

seventeen-day window but outside of the statutorily set period

of fourteen days. Id. The Supreme Court concluded the

fourteen-day period was jurisdictional and the appeal was

untimely filed. See id. at 213–14.

In reaching that conclusion, the Court emphasized the

source of the period for appeal and the Court’s prior treatment

of appeal periods. First, the fourteen-day period was

grounded in a statute rather than in a procedural rule. The

Court noted the “jurisdictional distinction between court-

promulgated rules and limits enacted by Congress.” Id. at

211–12. It reasoned, “[b]ecause Congress specifically limited

the amount of time by which district courts can extend the

notice-of-appeal period in § 2107(c), that limitation is more

than a simple ‘claim-processing rule.’” Id. at 213. Second,

the Court drew on its historic treatment of periods for appeal

stating, “[t]his Court has long held that the taking of an

appeal within the prescribed time is ‘mandatory and

jurisdictional.’” Id. at 209 (quoting Griggs v. Provident

Consumer Disc. Co., 459 U.S. 56, 61 (1982) (per curiam)).

The longstanding-treatment of statutorily prescribed appeal

periods as jurisdictional reflects Congress’s ability to

“prohibit[ ] federal courts from adjudicating an otherwise

legitimate ‘class of cases’ after a certain period has elapsed

from final judgment.” Id. at 213. The Supreme Court

recently clarified in Hamer that “[i]f a time prescription

10

governing the transfer of adjudicatory authority from one

Article III court to another appears in a statute, the limitation

is jurisdictional.” 138 S. Ct. at 20.

Following the decision in Bowles, we have treated time

limits set by statutes as jurisdictional in several cases. See

Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 322–23

(3d Cir. 2012) (concluding thirty-day limit in Federal Rule of

Appellate Procedure 4(a)(1)(A) is jurisdictional because it

originates in 28 U.S.C. § 2107(a)); Baker v. United States,

670 F.3d 448, 453–60 (3d Cir. 2012) (holding that the 180-

day limit in Federal Rule of Appellate Procedure 4(a)(6) and

derived from 28 U.S.C. § 2107 is jurisdictional based on

Bowles); In re Caterbone, 640 F.3d 108, 111–12 (3d Cir.

2011) (stating, because 28 U.S.C. § 158 requires that an

appeal be taken in the time provided by Federal Rule of

Bankruptcy Procedure 8002, the time period in Rule 8002 is

jurisdictional); cf. Mathias v. Superintendent Frackville SCI,

876 F.3d 462, 470–72 (3d Cir. 2017) (concluding the period

for filing a cross-appeal under Federal Rule of Appellate

Procedure 4(a)(3) is not jurisdictional because it is not

derived from a statute).6

6

Courts of Appeals have split on this issue. Compare, e.g.,

Stephanie–Cardona LLC v. Smith’s Food & Drug Ctrs., Inc.,

476 F.3d 701, 705 (9th Cir. 2007) (finding Rule 4(a)(3)

nonjurisdictional); Clubside, Inc. v. Valentin, 468 F.3d 144,

162 (2d Cir. 2006) (same); Spann v. Colonial Vill., Inc., 899

F.2d 24, 33 (D.C. Cir. 1990) (same), with, e.g., Jackson v.

Humphrey, 776 F.3d 1232, 1238 n.6 (11th Cir. 2015) (finding

Rule 4(a)(3) jurisdictional); Art Midwest Inc. v. Atl. Ltd.

P’ship XII, 742 F.3d 206, 213 (5th Cir. 2014) (same);

11

As in Bowles, the thirty-day appeal period here is

derived from a statute. See § 3731. Moreover, the appeal

period is included in the same statutory section as the grant of

jurisdiction to courts of appeals. In Wong, the Supreme Court

reiterated the “separation of a filing deadline from a

jurisdictional grant indicates that the time bar is not

jurisdictional,” 135 S. Ct. at 1633, when analyzing the time

limits contained in the Federal Tort Claims Act (FTCA), id. at

1629. The FTCA provides a tort claim against the United

States must be brought “within two years after such claim

accrues” and presented to a federal court “within six months”

following the agency’s adjudication. See 28 U.S.C.

§ 2401(b). While the time limitations are contained in

§ 2401(b), the grant of jurisdiction to federal district courts to

hear FTCA claims is included in a different section of Title

28. See 28 U.S.C. § 1346(b)(1); Wong, 135 S. Ct. at 1633.

Recognizing “the structural divide built into the statute,” the

Court concluded that “[n]othing conditions the jurisdictional

grant on the limitations periods, or otherwise links those

separate provisions.” Wong, 135 S. Ct. at 1633; see also Reed

Elsevier, 559 U.S. at 161–65 (concluding that the location of

a registration requirement in a different section than the grant

of jurisdiction suggested the requirement was not

jurisdictional).

In contrast to the timing requirements at issue in both

Wong and Reed Elsevier, the thirty-day appeal period here is

embedded in the same statutory section that grants

jurisdiction to the court of appeals. From the Criminal

Sullivan v. City of Augusta, 511 F.3d 16, 32 n.7 (1st Cir.

2007) (same).

12

Appeals Act’s passage in 1907, the appeal period has

remained in the same section as the jurisdictional grant.

Compare Criminal Appeals Act, ch. 2564, 34 Stat. 1246

(1907), with 18 U.S.C. § 3731. Thus, treating the appeal

period as jurisdictional does not disregard any “structural

divide built into the statute.” Wong, 135 S. Ct. at 1633.

Further, the provision utilizes mandatory, rather than

permissive, terms. While the word “jurisdiction” is not

included in the appeal-period provision, Congress is not

required to “incant magic words in order to speak clearly.”

Auburn Regional, 568 U.S. at 153. The provision provides

“[t]he appeal in all such cases shall be taken within thirty

days after the decision.” § 3731 (emphasis added). Although

not determinative, the “mandatory word ‘shall’ . . . [is a]

word[ ] with jurisdictional import.” Auburn Regional, 568

U.S. at 154. The nature of the prescribed time period in

§ 3731 persuades us that the thirty-day limit is jurisdictional.

That conclusion comports with the Supreme Court’s

“longstanding treatment of statutory time limits for taking an

appeal as jurisdictional.” Bowles, 551 U.S. at 210.7

7

In Henderson, the Supreme Court concluded the period for

appeal from the Board of Veterans’ Appeals to Veterans

Court is not jurisdictional. 562 U.S. at 441. But Henderson

involved an appeal from an agency to an Article I tribunal—

not from a district court to a court of appeals. Id. at 437–38.

The Supreme Court drew on that difference when

distinguishing Bowles and concluding that the limitation at

issue in Henderson was not jurisdictional. Id. at 436

(“Bowles concerned an appeal from one court to another

court. The ‘century’s worth of precedent and practice in

13

Our conclusion is bolstered by the legislative history

of § 3731. Prior to passage of the first Criminal Appeals Act

in 1907, the Supreme Court held the government was not

permitted to appeal in a criminal case absent express statutory

authority to do so. See United States v. Sanges, 144 U.S. 310,

321–23 (1892). With the Criminal Appeals Act of 1907,

Congress expressly provided the government with the right to

appeal to the Supreme Court or the circuit courts of appeals in

specified circumstances and stated that “the writ of error in all

such cases shall be taken within thirty days after the decision

or judgment has been rendered and shall be diligently

prosecuted and shall have precedence over all other cases.”

Criminal Appeals Act, ch. 2564, 34 Stat. 1246 (1907)

(emphasis added). In particular, the Act allowed the

government to appeal from dismissal of an indictment, if the

underlying challenge was based on “the invalidity, or

construction of the statute upon which the indictment is

founded.” Id. The House of Representatives initially passed

a version of the bill granting the government the “same right

of review by writ of error that is given to the defendant.”

H.R. Res. 15434, 59th Cong., 40 Cong. Rec. 5408 (1906).

Following amendment by the Senate, the Act was

narrowed to not extend the same appeal rights to the

government and to provide that government appeals should

be taken within thirty days. H.R. Rep. 59-8113, at 2 (1907)

(Conf. Rep.). In United States v. Hark, 320 U.S. 531 (1944),

the Supreme Court interpreted the thirty-day appeal period,

explaining that “[n]either the District Court nor this court has

American courts’ on which Bowles relied involved appeals of

that type.” (quoting Bowles, 551 U.S. at 209–210 & 209 n.2)).

14

power to extend the period.” Id. at 533.

The first Act proved to be unworkable in practice, with

the Supreme Court commenting that it “reflect[ed] no

coherent allocation of appellate responsibility” and was “a

most unruly child that has not improved with age.” United

States v. Sisson, 399 U.S. 267, 307 (1970). In 1970, Congress

significantly amended the Act as part of the Omnibus Crime

Control Act of 1970, Pub. L. 91-644, 84 Stat. 1880. In so

doing, it brought the language of the Act into accordance with

common usage, expanded the government’s ability to appeal,

provided for review by the courts of appeals over orders

previously designated for Supreme Court review, and added

that the Act should be liberally construed. See S. Rep. No.

91-1296, at 2 (1970). However, Congress did not alter the

requirement that such an appeal be diligently prosecuted.

H.R. Res. 17825, 91st Cong. § 42 (1970).

While Congress overhauled the statute in other

respects, it left the thirty-day appeal period intact, despite

prior treatment of that appeal period as jurisdictional by the

Supreme Court. Its only amendment to the thirty-day

provision was changing the phrase “decision or judgment” to

“decision, judgment or order.” Id. Congress’s retention of

the thirty-day period without alteration provides additional

support for the conclusion that the period is jurisdictional.

See Henderson, 562 U.S. at 436 (“When a long line of this

Court’s decisions left undisturbed by Congress has treated a

similar requirement as jurisdictional, we will presume that

Congress intended to follow that course.” (internal quotation

marks and citations omitted)); see also Lorillard v. Pons, 434

U.S. 575, 580 (1978) (“Congress is presumed to be aware of

an administrative or judicial interpretation of a statute and to

15

adopt that interpretation when it re-enacts a statute without

change.”). Based on the statute’s text and structure, recent

case law, and legislative history, we conclude that the thirty-

day period in § 3731 is jurisdictional.8

B.

Typically, the thirty-day appeal period under § 3731

begins when a covered order is entered on the docket. See

United States v. Mallory, 765 F.3d 373, 379–80 (3d Cir.

2014). But if the government timely seeks reconsideration of

the order, it is rendered nonfinal until the court decides the

motion for reconsideration, and the thirty-day appeal period

runs from an order denying the motion. See United States v.

Ibarra, 502 U.S. 1, 6–7 (1991) (per curiam); cf. United States

v. Healy, 376 U.S. 75, 77–78 (1964). Both parties in this case

accept those two propositions.

As noted, Kalb contends the government’s failure to

file a motion for reconsideration within thirty days of the

suppression order’s entry strips us of jurisdiction over the

government’s appeal of the suppression order. In response,

the government argues that the District Court deemed the

motion for reconsideration “timely,” thus satisfying the

prerequisites for stopping the appeal period. As stated, we

conclude that the government must file a motion for

reconsideration within § 3731’s thirty-day period for the

8

In so holding, we join the United States Courts of Appeals

for the Ninth and Tenth Circuits. See United States v. Kim,

298 F.3d 746, 749 (9th Cir. 2002), amended by 317 F.3d 917

(9th Cir. 2003); United States v. Cook, 599 F.3d 1208, 1212

(10th Cir. 2010).

16

motion to keep that thirty-day period from expiring.9

Motions for reconsideration or petitions for rehearing

filed within the appeal window are distinguishable from those

that are not because the latter amount to “an attempt to

rejuvenate an extinguished right to appeal.” Healy, 376 U.S.

at 77. In Healy, the Supreme Court addressed whether a

petition for rehearing “renders the judgment not final for

purposes of appeal” under then-Supreme Court Rule 11(2),

which required that an appeal be filed within thirty days. Id.

at 77–78. Holding that it did, id. at 80, the Court stated,

“[s]ince the petition for rehearing was filed within 30 days of

the judgment, we are not faced with an attempt to rejuvenate

an extinguished right to appeal,” id. at 77 (emphasis added).

While that statement guides our inquiry, it does not—as Kalb

argues—fully decide the issue because the Supreme Court

considered a petition that was filed within the thirty-day

appeal period. Accordingly, we turn to a survey of our sister

Circuits’ treatment of this issue.

The United States Court of Appeals for the Tenth

Circuit addressed an analogous scenario to this one in United

States v. Martinez, 681 F.2d 1248 (10th Cir. 1982) (per

curiam). In that case, the government attempted to appeal

under § 3731. Id. at 1251. It claimed that its motion for

reconsideration, which was filed more than thirty days after

the appealed order, tolled the appeal period. See id. at 1252.

The Tenth Circuit rejected the argument, stating that § 3731 is

jurisdictional and “a motion for reconsideration does not

9

Because the government has the full thirty days to appeal

following the entry of judgment on a motion for

reconsideration, we will refer to the motion for

reconsideration as preventing the appeal period’s expiration.

17

bring new life to an order unless it is filed within the thirty

day period for taking the appeal running from the date of the

entry of the judgment or order appealed from.” Id. at 1253.

The government attempts to distinguish this case from

Martinez, arguing that the Tenth Circuit’s holding only

applies to motions deemed untimely by the district court. See

Appellant’s Reply Br. at 9. But, in so doing, the government

overlooks two aspects of Martinez. First, the district court

considered the government’s motion for reconsideration and

denied it on the merits, as in this case, despite later

commenting that it was “untimely.” Martinez, 681 F.2d at

1251. Second, the Tenth Circuit did not qualify its statements

by reference to a district court’s determinations of timeliness:

As we have seen from United States v. Healy,

the motion for reconsideration has to be filed

within thirty days following entry of the order

or judgment. The motion for reconsideration

did not breathe new life into the order which

was entered more than thirty days before the

filing of the motion for reconsideration.

Id. at 1253. Accordingly, Martinez is not so easily

distinguished and provides support for Kalb’s position.

When assessing the timeliness of a motion for

reconsideration under § 3731, several of our sister Circuits

have relied on the thirty-day period rather than the district

court’s characterization of the motion, although none

involved a motion filed after the thirty-day appeal period.

See, e.g., United States v. Cook, 599 F.3d 1208, 1212 (10th

Cir. 2010) (“In a criminal case, a timely motion for

reconsideration, defined as one filed within the time to appeal,

18

postpones the time to appeal until the court disposes of the

motion.” (emphasis added)); Canale v. United States, 969

F.2d 13, 15 (2d Cir. 1992) (“While we are unaware of any

rule of criminal or appellate procedure which addresses the

subject of timeliness of a motion for reconsideration,

[n]umerous decisions have found the government’s

interlocutory appeal to be timely . . . when a motion

for . . . reconsideration was filed within thirty days following

the order appealed from.” (internal quotation marks and

citation omitted)); United States v. Vicaria, 963 F.2d 1412,

1414 (11th Cir. 1992) (“A motion for reconsideration in a

criminal case must be filed within the period of time allotted

for filing a notice of appeal in order to extend the time for

filing the notice of appeal. Therefore, in a criminal case, the

government has thirty days in which to seek reconsideration

of a final judgment or other appealable order.” (citation

omitted)).

We find additional support for our conclusion in the

legislative history of § 3731. In April 1967, Representative

Thomas Railsback introduced a bill, H.R. Res. 8654, 90th

Cong., 1st Sess. (1967), to add appeals from suppression

orders to § 3731. In his statements concerning the bill,

Representative Railsback stated that such appeals “must of

necessity be limited by the sixth amendment right to a speedy

trial and the fifth amendment protection against double

jeopardy.” Anti-Crime Program: Hearings Before Subcomm.

No. 5 of the Comm. on the Judiciary, 90th Cong., 1530, 1531

(1967). Representative Railsback emphasized the safeguards

included in the bill, particularly the thirty-day requirement:

It seems also that any action by the Congress to

provide for additional grounds for appeal by the

19

Government in criminal trials must be tightly

drawn and must preserve all of the

constitutional rights of the defendant.

Therefore, I believe certain safeguards in such

appeals are necessary. To make sure that such

appeal does not bring about unnecessary delay,

such appeals must be made within 30 days.

This is already in section 3731 of title 18 and

would apply equally to this new provision.

Id. at 1532 (emphasis added).

The government asserts the Supreme Court has

established “what matters in this situation is not whether a

motion for reconsideration is timely in relation to the original

time for appeal, but whether the motion for reconsideration is

timely under any rule pertinent to such a motion.”

Appellant’s Reply Br. at 5. In support, the government cites

Browder v. Director, Department of Corrections of Illinois,

434 U.S. 257 (1978). In that case, the Supreme Court

addressed whether a motion for reconsideration filed by the

state in habeas proceedings, beyond the ten days allowed by

the Federal Rules of Civil Procedure, tolled “[t]he running of

time for filing a notice of appeal.” Id. at 264. The Court held

that it did not because the motion was “untimely under the

Civil Rules, and therefore did not toll the time for appeal

under Appellate Rule 4(a).” Id. at 267.

Rejecting the state’s contention that the thirty-day

period from Healy and United States v. Dieter, 429 U.S. 6

(1976) (per curiam), controlled, the Browder Court stated that

“absent a rule specifying a different time limit, a petition for

rehearing in a criminal case would be considered timely when

20

filed within the original period for review. In a civil case,

however, the timeliness of a motion for rehearing or

reconsideration is governed by Rule 52(b) or Rule 59, each of

which allows only 10 days.” 434 U.S. at 268 (internal

quotation marks and citations omitted). From that statement,

the government extrapolates that the thirty-day appeal period

under § 3731 is only a default presumption that can be

overcome when any other rule, which would make the motion

timely, applies or the district court treats the motion as timely.

But such a reading of Browder turns the logic of the

decision on its head. First, the Browder Court stated that an

untimely motion under the applicable Federal Rule of Civil

Procedure cannot render an order nonfinal:

The rationale behind the tolling principle of

[Rule 4(a)] is the same as in traditional practice:

“A timely petition for rehearing tolls the

running of the [appeal] period because it

operates to suspend the finality of the

. . . court’s judgment, pending the court’s

further determination whether the judgment

should be modified so as to alter its

adjudication of the rights of the parties.” An

untimely request for rehearing does not have the

same effect.

Id. at 267 (emphasis removed and second alteration in

original) (quoting Dep’t of Banking v. Pink, 317 U.S. 264,

266 (1942)). That holding does not prove the converse—that

any motion deemed timely by a district court, even if filed

outside of the thirty-day appeal period, reopens the appeal

window.

21

Second, in Browder, the appeal period was shortened.

Here, the government asks us to expand its statutory period

for appeal. But the thirty-day period in § 3731 is

jurisdictional. See supra Section III.A. To conclude that any

motion for reconsideration, if deemed timely by a district

court, extends the thirty-day period would be an

impermissible extension of our jurisdiction. Furthermore,

that conclusion does not comport with the rationale behind

motions for reconsideration tolling the appeal period under

§ 3731. As the Supreme Court stated in Dieter, “the

consistent practice in civil and criminal cases alike has been

to treat timely petitions for rehearing as rendering the original

judgment nonfinal for purposes of appeal for as long as the

petition is pending.” 429 U.S. at 8.10

But, in this case, the motion for reconsideration was

not filed until the thirty-day appeal period had elapsed. Thus,

for the entire thirty-day appeal period under § 3731, the

suppression order remained final—including the day that

period expired. Contrary to the government’s assertions, this

10

The District Court’s consideration on the merits of the

motion for reconsideration does not affect our conclusion.

Such consideration “cannot override the application of

jurisdictional rules, as both this Court and the Supreme Court

have held.” State Nat’l Ins. Co. v. County of Camden, 824

F.3d 399, 409 (3d Cir. 2016); see also Lizardo v. United

States, 619 F.3d 273, 278 (3d Cir. 2010) (concluding that an

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

appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)

even if the opposing party did not object and the district court

considered the motion on the merits).

22

scenario equates to “an attempt to rejuvenate an extinguished

right to appeal,” Healy, 376 U.S. at 77, an action we are not

permitted to take.11 Accordingly, we conclude that a motion

for reconsideration must be filed within the thirty-day appeal

period specified in § 3731 in order to keep the appeal period

from expiring.12 Because the government filed its motion for

reconsideration more than thirty days after the suppression

order was entered on the docket, the motion did not prevent

11

As now-Justice Gorsuch stated when addressing whether

the government may file successive motions for

reconsideration under § 3731:

[T]he Supreme Court has unequivocally

directed that jurisdictional filing deadlines are

not susceptible to alteration based on precisely

the sort of equitable considerations that the

government urges on us, explaining that “this

Court has no authority to create equitable

exceptions to jurisdictional requirements.”

Bowles, 127 S. Ct. at 2366. And whatever else

one might think about this command, it surely

must be susceptible to the Rule of the Goose

and Gander and thus apply no less forcefully to

the government than the habeas petitioner.

United States v. Cos, 498 F.3d 1115, 1137 (10th Cir. 2007)

(Gorsuch, J., dissenting).

12

We need not address the potential effect of a motion for

extension of time under Federal Rule of Appellate Procedure

4(b)(4) in this case.

23

the appeal period from elapsing, and we must dismiss the

appeal of that order for lack of jurisdiction.13

IV.

Although we lack jurisdiction to consider the

government’s appeal of the District Court’s order granting

Kalb’s suppression motion, we do have jurisdiction over the

government’s appeal of the District Court order denying its

motion for reconsideration because the government filed its

appeal within thirty days of the issuance of that order. “The

purpose of such a motion is to correct a clear error of law or

to prevent a manifest injustice in the District Court’s original

ruling.” Dupree, 617 F.3d at 732. “Though ‘[m]otions to

reconsider empower the court to change course when a

mistake has been made, they do not empower litigants . . . to

raise their arguments, piece by piece.’” Id. at 732–33

(alteration in original) (quoting Solis v. Current Dev. Corp.,

557 F.3d 772, 780 (7th Cir. 2009)).

We conclude the District Court did not abuse its

discretion in denying the government’s motion. At the

motion to suppress stage, the government contended that

Kalb’s stop was lawful as an investigatory stop under Terry v.

Ohio, 392 U.S. 1 (1968). In its motion for reconsideration,

the government presented two new arguments that were not

previously raised based on Kalb’s use of the word

“scrapping” and an attenuation argument. The government

also advanced a new theory, which it did not previously

13

We recognize that our result may appear to undermine the

collegial nature of the proceedings fostered by the parties and

District Court. But we are barred from evaluating equitable

considerations. See Wong, 135 S. Ct. at 1631.

24

present to the Court, that Kalb was properly stopped as a

witness under Illinois v. Lidster, 540 U.S. 419 (2004). In

denying the motion for reconsideration, the District Court

determined the government’s arguments “could as well have

been made earlier” and were accordingly “not a proper basis

for reconsideration.” App. 14. We agree and find no abuse

of discretion in the District Court’s denial of the motion.

V.

For the foregoing reasons, we will dismiss for lack of

jurisdiction the government’s appeal of the order granting

Kalb’s suppression motion. We will affirm the order denying

the government’s motion for reconsideration.

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