Baker v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 08-2288 and 08-2365

_____________

DARRYL ORRIN BAKER,

Appellant

v.

UNITED STATES OF AMERICA;

GOVERNMENT OFFICIALS, at F.C.I. MCKEAN;

ELLEN MCNINCHS; MR. MERRILLO;

WARDEN JAMES SHERMAN;

KATHLEEN HAWK SAWYER; MR. RAYOME

_____________

Appeals from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 1-05-cv-00146)

District Judge: Honorable Sean J. McLaughlin

_____________

Argued November 9, 2011

Before: RENDELL, JORDAN and GREENAWAY, JR.,

Circuit Judges

(Opinion Filed: February 13, 2012)

_____________

Alexander Bilus, Esq. [ARGUED]

Carolyn H. Feeney, Esq.

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Counsel for Appellant

Nicholas J. Bagley, Esq.

Thomas M. Bondy, Esq.

Michael E. Robinson, Esq. [ARGUED]

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Robert L. Eberhardt, Esq.

Megan E. Farrell, Esq.

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellees

Matthew H. Duncan, Esq. [ARGUED]

Fine, Kaplan & Black

1835 Market Street, Suite 2800

Philadelphia, PA 19103

Counsel for Court Appointed Amicus Curiae

_____________

OPINION OF THE COURT

_____________

2

RENDELL, Circuit Judge.

In 2005, Darryl Orrin Baker, proceeding pro se, filed a

federal lawsuit against the United States and various officials

of the McKean Federal Correctional Institution (“FCI-

McKean”), alleging personal injuries caused by their

exposing him to second-hand smoke while he was

incarcerated at that facility in 2004, in violation of the Federal

Tort Claims Act, 28 U.S.C. § 2671. The District Court

dismissed his case, but, as is discussed at length below, news

of the dismissal did not reach Baker for quite some time. His

efforts to rectify the situation created by the late notice were,

as a result, untimely.

Baker appeals the District Court‟s orders denying his

untimely motions to reopen the time to take an appeal and his

untimely motions for reconsideration of the prior order

dismissing his complaint. He contends that his motions were

untimely because prison officials delayed in transmitting to

him the District Court‟s dismissal order. He urges that

because of the delay, we should either rule that the District

Court can consider reopening the time to take an appeal, or

should deem his motion for reconsideration timely, which

would enable us to review the underlying dismissal order.

For the reasons set forth below, we hold that we cannot

relax the timing requirements for filing a motion to reopen the

time to take an appeal under Federal Rule of Appellate

Procedure 4(a)(6), even for prison delay, because those

timing requirements are governed by a statute and are

jurisdictional in nature. Furthermore, while prison delay may

make an untimely motion for reconsideration timely so as to

permit us to exercise appellate jurisdiction over an order we

3

would otherwise lack jurisdiction to review, the delays Baker

complains of were not caused by prison officials, and

therefore, his untimely motions for reconsideration do not

permit us to review the underlying dismissal order.

I. Background and Procedural History

When Baker filed his complaint in the United States

District Court for the Western District of Pennsylvania, he

was incarcerated at the Federal Correctional Institution in

Lisbon, Ohio (“FCI-Lisbon”). While his case was proceeding

in the District Court in 2005, Baker was transferred from FCI-

Lisbon to the Lewisburg United States Penitentiary (“USP-

Lewisburg”).

The District Court entered an order on July 11, 2006

granting the defendants‟ motion to dismiss (the “Dismissal

Order”), and sent notice of the dismissal to Baker and the

defendants. Unfortunately, the District Court clerk‟s office

sent the Dismissal Order to Baker‟s address at FCI-Lisbon,

the address then listed on the docket sheet, instead of USP-

Lewisburg.1 (Amicus App. at 273.) An internal docket entry

dated July 24, 2006 confirms that Baker did not receive a

copy of the order. The entry states, “***Staff notes; Order

dated 7/11/06 returned from Darryl Orrin Baker; envelope

marked „Not at this address; Return to Sender.‟” (Id. at 274.)

It appears that the clerk‟s office did not make any effort to

1

Although the docket sheet refers to Baker‟s place of

incarceration as “FCI-Lisbon,” the only federal prison in

Lisbon, Ohio is actually called “FCI-Elkton.” There is no

federal prison that is called “FCI-Lisbon.” We refer to the

prison as such, however, in order to be consistent with the

record.

4

locate Baker after the copy of the order was returned.

Unfortunately for Baker, this was just the beginning of a

series of missteps that gave rise to the procedural puzzle

presented in this appeal.

The next docket activity occurred nearly seven months

later, in February 2007. The first docket entry dated February

9, 2007 is a change-of-address notice from Baker. Baker had

written a letter to the District Court dated December 28, 2005,

notifying the clerk‟s office of his move from FCI-Lisbon to

USP-Lewisburg and providing a new mailing address.

However, the clerk‟s office did not docket the letter or enter

his address change on the docket until February 9, 2007, more

than a year after Baker had sent his notice. The second

docket entry on February 9, 2007 reflects that Baker sent a

letter to the District Court dated January 31, 2007, in which

he explained that he had obtained a copy of the docket sheet

in his case and learned from it that the District Court issued

the Dismissal Order. Baker asserted that he never received a

copy of the Dismissal Order, and as a result, had been unable

to file a motion for reconsideration or a notice of appeal.

Baker asked the clerk‟s office to provide him with a copy of

the Dismissal Order. The clerk‟s office did so, but not until

eleven months later, on January 7, 2008.

In the meantime, on May 31, 2007, Baker filed2

several motions: a post-judgment motion under Federal Rule

2

Baker signed these motions on May 31, 2007, and they were

entered on the District Court docket on June 8, 2007. We

presume here that Baker filed all of his motions on the date

that he executed them. See Houston v. Lack, 487 U.S. 266,

276 (1988) (deeming a notice of appeal filed “at the time

5

of Civil Procedure 60(b); a motion to file a notice of appeal

under Federal Rule of Appellate Procedure 4(a)(1);3 a motion

to toll the time to take an appeal under Appellate Rule

4(a)(4); and a motion to reopen the time to take an appeal

under Appellate Rule 4(a)(6). Then, as noted above, on

January 7, 2008, nearly a year after Baker requested it, Baker

was served with a copy of the Dismissal Order. Baker then

supplemented his May 31, 2007 motions on January 16, 2008

by filing a motion to alter or amend the judgment under Rule

59(e). In all of these motions, Baker alleged that the prison

was responsible for his not receiving a copy of the Dismissal

Order, averring generally that staff at USP-Lewisburg

mishandled his mail by returning a copy of the Dismissal

Order to the District Court. This error, Baker contended,

prevented him from filing timely post-judgment motions and

a timely notice of appeal from the Dismissal Order.

On January 31, 2008, the District Court denied all of

Baker‟s motions. First, the District Court construed all of

Baker‟s motions under Appellate Rule 4 as motions to reopen

the time to take an appeal, pursuant to Appellate Rule 4(a)(6).

The District Court explained that it was barred from

reopening Baker‟s time to file a notice of appeal because

Baker‟s motion was not filed within the earlier of 180 days

after the judgment was entered or within seven days of his

receiving notice of the entry, as then-required by Appellate

petitioner delivered it to the prison authorities for forwarding

to the court clerk”).

3

We will refer to the Federal Rules of Civil Procedure as

“Rules,” and use the short-hand “Appellate Rule” when

referring to the Federal Rules of Appellate Procedure.

6

Rule 4(a)(6)(B).4 Next, the District Court denied Baker‟s

motion for reconsideration under Rule 59(e) as untimely

because Baker failed to file that motion within ten days of the

Dismissal Order, as then required under Rule 59(e).5 The

District Court also denied Baker‟s Rule 60(b) motion, but that

is not at issue on appeal.

On February 9, 2008, Baker filed another motion for

reconsideration under Rule 59(e). In that motion, Baker

asserted that the District Court erred in denying his first

motion for reconsideration because it failed to consider in that

denial order that prison authorities mishandled the delivery of

the Dismissal Order. At the same time, Baker also filed

another motion to reopen the time to take an appeal. The

District Court denied these motions on April 10, 2008. As to

Baker‟s attempts to reopen the time to take an appeal, the

4

Currently, a motion to reopen the time to take an appeal

must be filed within the earlier of 180 days after the judgment

was entered or fourteen days of receiving notice of the entry.

Fed. R. App. P. 4(a)(6)(B). However, at the time Baker‟s

case was before the District Court, a litigant had to file his

motion to reopen within the earlier of 180 days after the

judgment was entered or seven days of receiving notice of the

entry. Fed. R. App. P. 4(a)(6)(B) (2007). Amendments in

2009 to Appellate Rule 4(a)(6) changed the seven-day time

limit to fourteen days.

5

Currently, a motion for reconsideration under Rule 59(e)

must filed no later than twenty-eight days after the entry of

the judgment. Fed. R. Civ. P. 59(e). However, at the time

Baker‟s case was before the District Court, a ten-day deadline

applied. Fed. R. Civ. P. 59(e) (2007).

7

District Court reaffirmed its previous ruling that Appellate

Rule 4(a)(6) sets a 180-day outer limit on such an attempt.

As to Baker‟s Rule 59(e) motion, the District Court rejected

Baker‟s argument that it needed to hold an evidentiary

hearing to determine whether prison officials actually

interfered with the delivery of his mail, believing that our

opinion in Poole v. Family Court of New Castle County, 368

F.3d 263, 265-66 (3d Cir. 2004), barred exclusion of delay

caused by prison officials from time limits for filing an appeal

in civil cases.6

Baker timely appealed the District Court‟s January 31,

2008 and April 10, 2008 orders. We consolidated Baker‟s

appeals with three other cases — Barner v. Williamson, et al.,

No. 08-1025, Long v. Atlantic City Police Department, et al.,

No. 06-4732, and Cycle Chem, Inc. v. Jackson, et al., No. 09-

1320 — that also concern the timeliness of appeals under

Appellate Rule 4(a).7

6

As we discuss below and in a companion case filed today,

Long v. Atlantic City Police Department, No. 06-4732, some

of our reasoning in Poole, upon which the District Court

relied, was mistaken. However, our ultimate ruling was

correct.

7

We appointed Fine, Kaplan and Black, R.P.C. as amicus on

behalf of the Court to brief the jurisdictional issues in the

cases. Because Baker, Barner, and Long are all appearing pro

se, we also appointed Dechert LLP as pro bono counsel to

represent them solely on the jurisdictional issues presented in

the appeals. The Court greatly appreciates the assistance

provided by amicus and pro bono counsel in these cases. We

are issuing separate opinions in each of the cases.

8

II. Discussion

Baker‟s appeals raise two issues, each of which

concerns a separate rule of appellate procedure. The first

rule, Appellate Rule 4(a)(6), concerns a district court‟s ability

to reopen the time to file an appeal. It states:

The 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, but only if

all the following conditions are satisfied:

(A) the court finds that the moving party did not

receive notice under Federal Rule of Civil

Procedure 77 (d) of the entry of the judgment or

order sought to be appealed within 21 days after

entry;

(B) the motion is filed within 180 days after the

judgment or order is entered or within 14 days

after the moving party receives notice under

Federal Rule of Civil Procedure 77 (d) of the

entry, whichever is earlier; and

(C) the court finds that no party would be

prejudiced.

Fed. R. App. P. 4(a)(6). The second rule at issue is Appellate

Rule 4(a)(4). That rule states, in pertinent part:

(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

9

order disposing of the last such remaining

motion:

...

(iv) to alter or amend the judgment under Rule

59;

....

Fed. R. App. P. 4(a)(4). Thus, the timely filing of a Rule 59

motion tolls the time to appeal the underlying order until the

district court rules on the Rule 59 motion.

The first issue before us is whether the District Court

erred in denying Baker‟s various attempts to reopen the time

to take an appeal under Appellate Rule 4(a)(6). Baker argues

that his motions to reopen should have been granted because,

in calculating the time during which one may move to reopen,

courts should exclude any delay attributable to prison

authorities. Under Baker‟s view of the rule, the District Court

should have started counting his time to reopen from January

7, 2008, the date he received a copy of the Dismissal Order.

If the District Court thus erred in denying Baker‟s motions to

reopen, we would reverse and remand with instructions to the

District Court to evaluate whether Baker‟s allegation of

prison delay may be credited such that his motion to reopen

could be granted, which might ultimately provide Baker the

opportunity to file a timely notice of appeal that would bring

up the Dismissal Order for appellate review. However, if the

District Court was correct in denying Baker‟s motions, then

the appeal from the Dismissal Order would be barred unless

his motion for reconsideration was timely.

10

Thus, the second question presented is whether we

may deem his motions for reconsideration timely due to his

allegations of delay caused by prison officials in delivering

the Dismissal Order to him; doing so would toll Baker‟s time

to take an appeal under Appellate Rule 4(a)(4)(A). If the

answer to that question is yes, then we would have

jurisdiction over the appeal from the Dismissal Order, as well

as from the January 31, 2008 and April 10, 2008 orders

denying the various post-judgment motions. If the answer to

that question is no, then we would have jurisdiction only over

the appeals from the January 31, 2008 and April 10, 2008

orders denying his motions for reconsideration.

A. Reopening the Time to File an Appeal Under

Appellate Rule 4(a)(6)

As noted above, after learning in February 2007 that

the District Court had entered the Dismissal Order, Baker

filed various motions, all of which the District Court

construed as motions to reopen the time to take an appeal

under Appellate Rule 4(a)(6), and which the District Court

denied because they were filed after the 180-day outer limit

imposed by Appellate Rule 4(a)(6). Baker asserts that his

motions to reopen should be considered timely, however,

because he could not have complied with the 180-day

requirement as he did not receive the Dismissal Order, and,

because he moved to reopen within the 180-day window of

Appellate Rule 4(a)(6), provided that time lost due to delay

caused by prison officials is excluded and his time to file his

motion to reopen runs from the date he received the order.

We first consider whether we can recognize equitable

exceptions to Appellate Rule 4(a)(6) in light of Baker‟s lack

of notice, and, if not, then we consider whether we may

exclude time lost to prison delay under Houston v. Lack in

11

determining whether Baker complied with that Rule‟s

requirements.

1. Requirements to Reopen the Time to Take an

Appeal

Appellate Rule 4(a)(1) provides that a notice of appeal

must be filed within thirty days after the entry of the

judgment or order appealed from, or within sixty days, when

one of the parties to the case is the United States. Fed R.

App. P. 4(a)(1). If a party fails to file his notice of appeal

within the thirty- or sixty-day time limit, Appellate Rule

4(a)(6) provides a limited opportunity to reopen the time to

file an appeal when certain conditions are met. First, the

district court must find that the party moving to reopen the

time to file an appeal did not receive notice of the entry of the

judgment or order sought to be appealed within twenty-one

days after its entry on the district court docket. Second, the

motion to reopen must be “filed within 180 days after the

judgment or order is entered or within 14 days after the

moving party receives notice under Federal Rule of Civil

Procedure 77(d) of the entry, whichever is earlier.” Third, the

district court must find that no party would be prejudiced. If

all of these conditions are met, the district court may reopen

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

the date when its order to reopen is entered. Fed. R. App. P.

4(a)(6)(A)-(C). Appellate Rule 4(a)(6) adopts these

conditions directly from a statute, 28 U.S.C. § 2107.8 While

8

Section 2107(c) provides, in pertinent part:

In addition, if the district court finds—

(1) that a party entitled to notice of the

entry of a judgment or order did not

12

according to its plain terms, the rule imposes specific time

limits within which one may move to reopen the time to file

an appeal, the question is whether those limits are subject to

any exceptions, equitable or otherwise, that would allow us to

relax the rule‟s time limits.

The Supreme Court answered this question in Bowles

v. Russell, 551 U.S. 205 (2007). Bowles missed Appellate

Rule 4(a)(1)‟s thirty-day deadline to file a notice of appeal

after being denied federal habeas relief by the district court.

Id. at 207. When Bowles moved to reopen the time to take an

appeal under Appellate Rule 4(a)(6), the district court granted

it and gave Bowles seventeen days, rather than the fourteen

days specified by Appellate Rule 4(a)(6) and § 2107(c), to file

his notice of appeal. Bowles filed his appeal within the

seventeen days allowed by the district court‟s order, but after

the fourteen-day period allowed by Appellate Rule 4(a)(6)

receive such notice from the clerk or any

party within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within

180 days after entry of the judgment or order or

within 14 days after receipt of such notice,

whichever is earlier, reopen the time for appeal

for a period of 14 days from the date of entry of

the order reopening the time for appeal.

Like Appellate Rule 4(a)(6), § 2107(c) was amended in 2009

to change the seven-day requirement to fourteen days. See

supra n.4 (noting that at the time Baker filed his motions to

reopen, the rule required a litigant to so move within the

earlier of 180 days after the entry of judgment, or seven days

after the litigant received notice of the judgment).

13

and § 2107(c) had passed. Id. Bowles argued that he should

be permitted to appeal because he had filed his notice of

appeal in accordance with the district court‟s order permitting

him to do so. See id. at 214.

The Supreme Court held that the court of appeals

lacked jurisdiction over Bowles‟s appeal because it was filed

outside the fourteen-day window allowed by Appellate Rule

4(a)(6) and § 2107(c). The Court observed that “the limit on

how long a district court may reopen th[e] period [for filing

an appeal under Appellate Rule 4(a)(6)] is set forth in a

statute,” and concluded that Appellate Rule 4(a)(6) was a

jurisdictional rule, not a “simple „claim-processing rule.‟” Id.

at 213 (citing 28 U.S.C. § 2107(c)). In so holding, the

Supreme Court reaffirmed the basic principle that “the taking

of an appeal within the prescribed time is „mandatory and

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

Consumer Discount Co., 459 U.S. 56, 61 (1982)). If a party

fails to comply with the prescribed time limits, a court of

appeals lacks jurisdiction over his case.

Continuing its efforts to clarify the difference between

jurisdictional rules—those which are strictly enforced

because they control a court‟s subject-matter jurisdiction over

a case—and claims-processing rules—those which are subject

to waiver, forfeiture, and equitable exceptions because they

do not set mandatory rules regarding a court‟s subject-matter

jurisdiction—the Court distinguished Bowles‟s case from

other cases involving claims-processing rules. For example,

in Kontrick v. Ryan, 540 U.S. 443, 448 (2004), the Supreme

Court held that a party‟s failure to comply with the timing

requirement of Federal Rule of Bankruptcy Procedure 4004

did not deprive a court of subject-matter jurisdiction because,

in part, that rule did not derive its timing requirement from a

14

statute. Rather, Rule 4004 was a procedural claims-

processing rule, which, while important for the orderly

transaction of business and administration of cases before a

court, may be subject to waiver or forfeiture if a party waits

too long to raise the timeliness issue before the court issues a

decision on the merits. Id. at 456; see also Eberhart v. United

States, 546 U.S. 12 (2005) (holding that Federal Rule of

Criminal Procedure 33(a), which parallels Bankruptcy Rule

4004, is a claims-processing rule subject to waiver or

forfeiture).

The Supreme Court in Bowles was explicit in stating

that neither Kontrick nor Eberhart “calls into question our

longstanding treatment of statutory time limits for taking an

appeal as jurisdictional” such that any failure to comply with

them would divest a court of subject-matter jurisdiction. 551

U.S. at 210.9 As it explained, § 2107 “contains the type of

9

The Supreme Court‟s suggestion that some time limits have

jurisdictional force because they are derived from statute has

led lower courts to emphasize that point in assessing whether

other rules impose jurisdictional limits or merely give claims-

processing guidance. See, e.g., United States v.

Comprehensive Drug Testing, Inc., 513 F.3d 1085, 1099 (9th

Cir. 2008) (“Whether a federal rule establishing a time

limitation imposes a jurisdictional rule depends on whether

the rule derives from a statute.” (citing Kontrick, 540 U.S. at

452)). Yet, such a narrow focus is inappropriate, as some

rules based in statute are not jurisdictional. See Reed

Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1241 (2010)

(concluding that statutory rule requiring copyright holders to

register works before suing was not jurisdictional); Dolan v.

United States, 130 S. Ct. 2533, 2536 (2010) (holding that the

15

statutory time constraints that would limit a court‟s

jurisdiction.” Id. at 211. Furthermore, it found this reasoning

to make “good sense” because Congress possesses the

authority to decide what cases lower federal courts have the

power—or jurisdiction—to consider. Id. at 212. And

“[b]ecause Congress decides whether federal courts can hear

cases at all, it can also determine when, and under what

conditions, federal courts can hear them.” Id. at 212-13.

Based on this reasoning, the Supreme Court concluded

that § 2107(c), and, thus, Appellate Rule 4(a)(6), set forth

specific limitations imposed by Congress on a district court‟s

authority to reopen the time to file an appeal. Failure to

comply with those limitations operates to deprive a court of

appeals of jurisdiction over an appellant‟s appeal. Id. at 213.

The district court‟s order permitting Bowles seventeen days

to file his notice of appeal did not effectively alter the time

limits because the district court had no authority to create

equitable exceptions to them. Id. at 214; see also In re Sealed

Case (Bowles), 624 F.3d 482, 487 (D.C. Cir. 2010) (declining

to override the requirements of Appellate Rule 4(a)(6)

because that rule is mandatory and jurisdictional).

Accordingly, there is no doubt after Bowles that those rules

district court was able to enter a restitution order even though

it missed the statutory deadline to do so). Indeed, the Bowles

Court did not “hold that all statutory conditions imposing a

time limit should be considered jurisdictional,” but instead

looked to context and history to determine “whether a statute

ranks a requirement as jurisdictional.” Reed Elsevier, 130 S.

Ct. at 1247-48. That said, the Bowles Court expressly stated

that statutory time limits for taking an appeal are

jurisdictional.

16

listed in 28 U.S.C. § 2107, which are also embodied in

Appellate Rules 4(a)(1) and 4(a)(6), are jurisdictional, and are

not subject to equitable modification.

Here, the District Court correctly concluded that

Baker‟s failure to comply with the requirement that his

motion to reopen be filed within the earlier of 180 days after

the judgment or order is entered, or within seven days after

his receipt of notice of the Dismissal Order, was fatal. Baker

filed his motion to reopen on May 31, 2007, which was 323

days after the entry of the Dismissal Order and well beyond

the 180-day outer limit imposed by Appellate Rule 4(a)(6).10

See 2005 Advisory Committee Notes to Appellate Rule

4(a)(6) (“[A]n appeal cannot be brought more than 180 days

after entry, no matter what the circumstances.”); 1991

Advisory Committee Notes to Appellate Rule 4(a)(6)

(explaining that the rule “establishes an outer time limit of

180 days for a party who fails to receive timely notice of

entry of judgment to seek additional time to take appeal”).

Given Bowles, we cannot extend the 180-day outer limit of

Appellate Rule 4(a)(6).

2. Excluding Time Lost Due to Prison Delay

Under Appellate Rule 4(a)(6)

10

If a litigant has not heard from a district court, he would do

well to check on the status of his case a few months after the

filing of a dispositive motion to ensure that the district court

has not rendered a decision of which the litigant is unaware,

given the 180-day outer limit for filing a motion to reopen the

time to file an appeal. Unfortunately, Baker did not ask for a

copy of the Dismissal Order until 206 days after it was

entered, by which time it was already too late to seek to

reopen the time to file an appeal.

17

Nevertheless, Baker urges that if we cannot extend the

time, we should instead exclude time allegedly attributable to

delays caused by prison officials in transmitting the Dismissal

Order. Under his approach, we would begin counting the 7-

day/180-day requirement from January 7, 2008, the date

Baker finally received a copy of the Dismissal Order. In

order to exclude the time allegedly lost to delay caused by

prison officials, we would have to read the terms “entry” in §

2107(c) and “entered” in Appellate Rule 4(a)(6)(B) to mean

when the prisoner receives the entered order, as opposed to

when the order or judgment is actually entered by the clerk on

the docket. Baker asserts that reading the statute and the rule

in this way is not only permissible, but is required by the

Supreme Court‟s decision in Houston v. Lack, as well as our

decisions in United States v. Grana, 864 F.2d 312 (3d Cir.

1989) and United States v. Fiorelli, 337 F.3d 282 (3d Cir.

2003), all cases in which the courts have fashioned ways to

take into account the potential delays caused by prison

officials that pro se prisoners may confront, while also

enforcing the time limits of Appellate Rule 4(a). If we were

to read the Appellate Rule and the statute in this way, and

agree that the delay was caused by prison officials, Baker‟s

motion to reopen would have complied with the conditions of

Appellate Rule 4(a)(6).

Houston teaches that we can, in some instances, read a

statute to take into account delays that pro se prisoners face.

But any such reading must not run contrary to the other terms

of the statute. The statute involved in that case, 28 U.S.C. §

2107(a), provides:

[N]o appeal shall bring any judgment, order, or

decree in an action, suit or proceeding of a civil

nature before a court of appeals for review

18

unless notice of appeal is filed, within thirty

days after the entry of such judgment, order or

decree.

(emphasis added). Appellate Rule 4(a)(1)(A), which requires

a party to file a notice of appeal within thirty days of the entry

of the judgment or order appealed from, derives from §

2107(a). The Supreme Court held that a pro se prisoner‟s

notice of appeal should be deemed filed, under § 2107(a) and

the Appellate Rule, when he delivers it to prison authorities

for forwarding to the district court. 487 U.S. at 270. This

prison mailbox rule, the Court reasoned, was necessary in

order to accommodate the unique circumstances pro se

prisoners face in having to entrust the forwarding of their

filings to prison authorities and in being unable to guard

against any delays caused by prison officials in transmitting

their filings to the relevant court. Id. at 271. The rule of

Houston thus excludes from the time to file a notice of appeal

any time lost to delays caused by prison authorities in

transmitting the pro se prisoner‟s notice of appeal to the

district court.

In so holding, the Court expressly considered whether

the language of § 2107 permitted it to deem a notice of appeal

filed when the pro se prisoner hands it over to prison

authorities. The Court noted that the statute:

does not define when a notice of appeal has

been “filed” or designate the person with whom

it must be filed, and nothing in the statute

suggests that, in the unique circumstances of a

pro se prisoner, it would be inappropriate to

conclude that a notice of appeal is “filed” within

the meaning of § 2107 at the moment it is

19

delivered to prison officials for forwarding to

the clerk of the district court.

487 U.S. at 272. Thus, the Supreme Court fashioned a way to

take into account “the unique circumstances of a pro se

prisoner,” while also preserving the mandatory and

jurisdictional nature of the timing requirements to file a notice

of appeal. Id.

However, unlike Houston‟s reading of § 2107(a) to

allow “filed” to be interpreted expansively, we conclude that

we cannot read “entry” within the meaning of § 2107(c) in a

way that both takes into account potential delays caused by

prison officials while also preserving the mandatory and

jurisdictional nature of the statute as Bowles requires. First,

the Appellate Rules provide that an order is “entered” when it

is actually added to the civil docket. See Fed. R. App. P.

4(a)(7). If we were to read “entry” expansively to mean the

date Baker received the Dismissal Order, we would be

redefining the meaning of entry, contrary to the definition

provided in Appellate Rule 4(a)(7). In contrast, in Houston,

the Court noted that the Appellate Rules did not foreclose its

reading of “filed,” for they were silent on the question of

when a notice of appeal is actually filed. 487 U.S. at 273.

More significantly, § 2107(c) provides that if the

district court finds that a party did not receive notice of the

entry of a judgment within twenty-one days of its entry, and

that no party would be prejudiced, it:

may, upon motion filed within 180 days after

the entry of the judgment or order or within 14

days after receipt of such notice, whichever is

earlier, reopen the time for appeal for a period

20

of 14 days from the date of entry of the order

reopening the time for appeal.

(emphasis added).11 Under its plain language, a party may

move to reopen the time to file an appeal within the earlier of:

(1) 180 days after the entry of judgment, or (2) 14 days after

receiving notice of the entry of the judgment. If we were to

read “entry” expansively to mean the date Baker received the

Dismissal Order, we would then be modifying § 2107(c) so as

to instead provide that “the district court may, upon motion

filed within 180 days after the receipt of the judgment or

order (substituted for “entry”) or within 14 days after receipt

of such notice, whichever is earlier . . . .”12 This reading is

unworkable because it sets forth two different time limits

from the notice of the order and would eviscerate the 180-day

outer time limit. No pro se prisoner would ever run up

against that limit because the earlier of the two situations

listed above would always be fourteen days after receipt of

notice of the order, and no pro se prisoner would ever reach

11

Similarly, Appellate Rule 4(a)(6)(B) provides that in order

to reopen the time to take an appeal, “the motion [must be]

filed within 180 days after the judgment or order is entered or

within 14 days after the moving party receives notice under

Federal Rule of Civil Procedure 77(d) of the entry, whichever

is earlier.” (emphasis added).

12

Likewise, if we read “entered” in Appellate Rule 4(a)(6)(B)

to mean when Baker received the Dismissal Order, the rule

would then read “the motion [must be] filed within 180 days

after notice of the judgment or order is received or within 14

days after the moving party receives notice under Federal

Rule of Civil Procedure 77(d) of the entry, whichever is

earlier.”

21

180 days before the 14-day period expired. Thus, as to pro se

prisoners, this reading would completely eliminate an entire

clause of § 2107(c), namely, “within 180 days after the entry

of the judgment or order,” and would place no outer limit

whatsoever on the filing of motions to reopen. In light of

Bowles‟s reminder that Congress has the authority to

determine under what circumstances a federal court may hear

a case, see 551 U.S. at 212-13, we cannot endorse a reading

of § 2107(c) that completely nullifies the 180-day outer limit

on the time for a litigant—whether a pro se prisoner or not—

to take an appeal; doing so would run contrary to Congress‟s

plain intent, apparent in § 2107(c), to set a 180-day outer limit

on when a litigant may move to reopen the time to file a

notice of appeal. See also 2005 Advisory Committee Notes

to Appellate Rule 4(a)(6) (“[A]n appeal cannot be brought

more than 180 days after entry, no matter what the

circumstances.”).

Thus, unlike in Houston, where nothing in § 2107(a) or

the Appellate Rules foreclosed the reading of “filed” that the

Supreme Court adopted, here, the plain language and clear

intent of § 2107(c) forecloses the reading Baker suggests.

Indeed, § 2107(c) concerns itself with the potential for delay

in receiving notice of the entry; the point of the 180-day outer

limit is because there could be delayed notice. This limit is

there for a reason and is not superfluous. We cannot endorse

an interpretation that effectively deletes it from the statute.

Nothing in our previous decisions in Grana or Fiorelli

requires us to read § 2107(c) as Baker suggests. In Grana,

we held that delay by prison authorities in delivering mail to a

prisoner should be excluded when calculating the time for

filing a notice of appeal under Appellate Rule 4(b) in a

criminal case. 864 F.2d at 313. Relying on the Supreme

22

Court‟s holding in Houston, we “perceive[d] no difference

between delay in transmitting the prisoner‟s papers to the

court and transmitting the court‟s final judgment to him so

that he may prepare his appeal.” Id. at 316. This conclusion

is supportable in Grana in part because Appellate Rule 4(b) is

not based on a statute.13 There was no controlling statute in

Grana, but § 2107(c) is controlling here.

Fiorelli speaks to when tolling a litigant‟s time to file a

notice of appeal under Appellate Rule 4(a)(4)(A) is

appropriate, not whether requirements in moving to reopen

the time to take an appeal under Appellate Rule 4(a)(6) are

met. As we discuss further below, Appellate Rule 4(a)(4)(A)

provides that a litigant‟s time to take an appeal is tolled by the

filing of certain timely post-judgment motions, including

motions for reconsideration. In Fiorelli, we held that “a

prison‟s actual delay or interference in the delivery of a final

order of the district court is excluded from the calculation of

the timeliness of motions for reconsideration . . . filed by pro

se inmates.” 337 F.3d at 289-90. The effect of this holding is

that when a motion for reconsideration is, after excluding

time lost due to prison delay, timely, a pro se prisoner‟s time

to file a notice of appeal is tolled under Appellate Rule

13

When Grana was decided, it was generally understood that

“the failure to file a timely notice of appeal in a criminal case

deprives [the court] of appellate jurisdiction.” Virgin Islands

v. Martinez, 620 F.3d 321, 326 (3d Cir. 2010); see id. at 326-

27 (collecting authority and citing Grana in support of the

“prior jurisdictional view of [Appellate] Rule 4(b)”). Now,

however, Appellate Rule 4(b)‟s deadline for filing a notice of

appeal in a criminal case is considered a “rigid” claims-

processing rule. Id. at 329.

23

4(a)(4)(A). Reading “timely” in Appellate Rule 4(a)(4)(A) to

exclude time that is actually attributable to delays caused by

prison officials for purposes of tolling is permissible, because

nothing in a statute or the Appellate Rules forecloses it.

Indeed, unlike Appellate Rule 4(a)(6), which is based in a

statute, Appellate Rule 4(a)(4)(A) is not.14 Notably, in the

companion case of Long v. Atlantic City Police Department,

filed today, we have held that Fiorelli is still controlling

precedent. See --- F.3d ---, No. 06-4732, slip op. at 15 (3d

Cir. Feb. 10, 2012).

14

Whether Appellate Rule 4(a)(4)(A) is a claims-processing

rule is a question we need not answer here. Even though our

holding in Lizardo v. United States, 619 F.3d 273, 277 (3d

Cir. 2010), implies that Appellate Rule 4(a)(4)(A) is a claims-

processing rule because its provisions do not appear in a

statute and it was promulgated under the Rules Enabling Act,

that does not mean that it is not binding or lacks force. But

see Gonzalez v. Thaler, 565 U.S. ---, slip op. at 12 (2012)

(noting that Appellate Rule 4 is treated “„as a single

jurisdictional threshold‟” (quoting Torres v. Oakland

Scavenger Co., 487 U.S. 312, 315 (1988))). To the contrary,

we stated in Long that “a conclusion that Appellate Rule

4(a)(4)(A) is a claims-processing rule would not prevent us

from dismissing, sua sponte, untimely appeals filed under

Appellate Rule 4(a)(4)(A).” Long, slip op. at 19 n.18.

Indeed, although a rule may be claims-processing in nature, a

court can still strictly enforce timing requirements contained

in that rule. See, e.g., Gonzalez, slip op. at 10 (“[C]alling a

rule nonjurisdictional does not mean that it is not mandatory .

. . .”); United States v. Mitchell, 518 F.3d 750 (10th Cir.

2008) (holding that the court had the power to enforce claims-

processing rules by way of a sua sponte dismissal).

24

Therefore, while there are certain instances in which

we can exclude time lost due to prison delay in calculating the

timeliness of appeals, the situation presented by Baker‟s case

is not one of them. If we were to read “entry” expansively so

as to permit the exclusion of time lost due to prison delay, we

would completely eviscerate the plain language of § 2107(c)

and Appellate Rule 4(a)(6)(B), both of which set a clear 180-

day outer limit on a motion to reopen. Therefore, the District

Court was correct in denying Baker‟s motions to reopen the

time to take an appeal.

B. Tolling the Time to File an Appeal Under

Appellate Rule 4(a)(4)

As an alternative to reopening, Baker urges that the

Dismissal Order is actually before us because his Rule 59(e)

motion should be deemed timely, such that it would toll his

time to take an appeal under Appellate Rule 4(a)(4)(A). As

we noted above, Appellate Rule 4(a)(4)(A) provides, in

pertinent part, that certain “timely file[d]” post-judgment

motions, including motions to reconsider under Rule 59(e),

serve to postpone “the time to file an appeal . . . until the

entry of the order disposing of the last . . . remaining motion.”

Fed. R. App. P. 4(a)(4)(A).15

15

Our amicus has argued that giving Appellate Rule

4(a)(4)(A) that effect in this case would run afoul of

Appellate Rule 4(a)(6), because Baker filed his Rule 59(e)

motion after the 180-day period for file a motion to reopen

had lapsed. Based on the facts presented here, however, we

need not, and do not, consider or decide how Appellate Rules

4(a)(4) and 4(a)(6) may interact.

25

Although Baker acknowledges that his Rule 59(e)

motion was untimely, he asks us to treat it as timely by

excluding the time lost allegedly due to prison delay, as was

permitted by Fiorelli and reinforced today in Long v. Atlantic

City Police Department. Relying on our decisions in Grana

and Fiorelli, we concluded in Long that a Rule 59(e) motion

may be deemed timely when a pro se prisoner alleges, and the

record shows, that prison officials actually delayed or

interfered with the delivery of a final order of the district

court. See Long, slip op. at 15. As we further explained in

Long,

when a pro se prisoner makes allegations in

connection with a motion for reconsideration

that could reasonably be construed as a non-

frivolous assertion that the prison delayed

delivering the court order that he is asking to be

reconsidered, the district court should engage in

fact-finding necessary to a jurisdictional

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

Id. at 15-16. This fact-finding by a district court is critical,

for it determines the scope of our jurisdiction.16

16

Though critical, the kind of fact-finding that a district court

must undertake need not be extensive. As we explained in

Long, “when the prisoner‟s allegations are uncontested, the

district court may of course choose to credit what the prisoner

says . . . We then, in turn, would accept any fact-finding as

long as it was not clearly erroneous.” Long, slip op. at 16-17.

Even if the district court cannot conclude on the basis of the

facts before it “whether the prison actually delayed or

interfered with a prisoner‟s receipt of an order,” a hearing

may not be necessary. Id. at 17.

26

In Baker‟s case, the District Court did not explicitly

find any facts that indicate whether Baker‟s allegation that

prison officials mishandled the delivery of his mail was true.

In accord with our holding in Fiorelli and as affirmed in our

holding in Long, therefore, we would ordinarily remand to the

District Court to find those facts. See id. at 18. However, as

our opinion in Poole suggested and in Long makes clear,

where the delay is caused not by prison officials but by the

clerk‟s office, we cannot exclude that time when calculating

the timeliness of a pro se prisoner‟s filing.

In Poole, a civil case, we noted that the delay that

Poole complained of was “not primarily due to Poole‟s status

as an inmate but to the simple fact that he was moved.” 368

F.3d at 266 n.4. Poole was transferred from one prison

facility to another shortly before the order that he sought to

appeal was issued. The clerk‟s office sent a copy of that

order to his first prison, but when it arrived, Poole had already

been transferred to the second prison. Id. at 264. By the time

Poole received a copy of the order, his time to appeal had run.

We reasoned in Long that the cause of the complained-of

delay matters and may determine whether we exclude the

time lost as a result of that delay when calculating a litigant‟s

compliance with timing requirements. Long, slip op. at 14.17

17

In Poole, we based our reasoning that prison delay was

cognizable in criminal but not civil cases in part on the fact

that there was no criminal analogue to Rule 77(d), which

provides that “„lack of notice of the entry by the clerk does

not affect the time to appeal.‟” Poole, 368 F.3d at 266

(quoting Fed. R. Civ. P. 77(d)). That is incorrect. See Fed. R.

Crim. P. 49(c). However, the remainder of Poole‟s reasoning

27

Thus, where, as in Poole, the delay is caused by the clerk‟s

office, the rule of Fiorelli and Grana does not apply. Cf.

Fiorelli, 337 F.3d at 289 (“Grana makes clear that only

delays caused by the prison warrant tolling of the filing

deadlines, and „[t]o the extent that the delay represents slow

mail, there is nothing that this Court can do to preserve an

appellant‟s right to appellate review.‟” (emphasis added)

(quoting Grana, 864 F.2d at 316)).

Accordingly, we will not remand to the District Court

here because we can conclude from facts already contained in

the record that the delay of which Baker complains was not

due to prison officials, but rather, due to error in the clerk‟s

office. Baker contends that the prison officials at USP-

Lewisburg erroneously returned the Dismissal Order to the

District Court, rather than giving it to him. He supported this

assertion by pointing to the staff notes on the docket sheet

indicating “Order dated 7/11/06 returned from Darryl Orrin

Baker; envelope marked „Not at this address; Return to

Sender.” But Baker is incorrect in asserting that the clerk‟s

office sent the Dismissal Order to USP-Lewisburg. Rather, it

is evident that the clerk‟s office erred by sending the order to

FCI-Lisbon when he was no longer there, and by failing to

docket Baker‟s change-of-address letter and forwarding the

Dismissal Order to USP-Lewisburg where he was then

housed.

Baker‟s belief that prison officials at USP-Lewisburg

erroneously returned the order to the District Court was

is sound, because as we noted in Long, “we view the holding

in Poole as turning not on its distinction between criminal and

civil cases but rather on the nature of the alleged delay.”

Long, slip op. at 14.

28

reasonable. After all, Baker had sent his change-of-address

letter seven months before the District Court issued the

Dismissal Order. Baker lodged a complaint with the prison

mailroom staff at USP-Lewisburg in February 2007, claiming

that they returned his mail to the District Court. A prison

mailroom staff member responded to his complaint in writing.

He explained that the mail Baker alleged was returned could

not have been returned by USP-Lewisburg staff because

mailroom staff do not use a stamp stating “Not at this address;

Return to Sender.”

However, from this response, coupled with the docket

sheet, we know that the Dismissal Order was sent to FCI-

Lisbon, not to USP-Lewisburg. At the time the Dismissal

Order was issued, the docket incorrectly listed Baker‟s

current address to be at FCI-Lisbon. Taken together, it is

clear that the clerk‟s office erred by mailing the Dismissal

Order to FCI-Lisbon instead of USP-Lewisburg. Indeed,

Baker conceded as much in another federal case that he

brought against prison officials.18 It also erred by failing to

docket Baker‟s change-of-address letter and forwarding the

Dismissal Order to him there.

18

In that case, Baker sought relief based on USP-Lewisburg‟s

alleged interference with Baker‟s appeal rights in this case,

and conceded that the clerk mailed the Dismissal Order to

FCI-Lisbon. See Baker v. Williamson, No. 07-2220, 2010

WL 1816656, at *2 (M.D. Pa. May 5, 2010). The District

Court rejected Baker‟s claim that USP-Lewisburg interfered

with delivery of the Dismissal Order, and we affirmed. See

Baker v. Williamson, No. 11-1824, 2011 WL 6016931 (3d

Cir. Dec. 5, 2011).

29

Because Baker‟s motion for reconsideration was

untimely, and that untimeliness cannot be attributed to delays

caused by prison officials, we cannot deem his motion for

reconsideration to have been timely filed for purposes of

tolling under Appellate Rule 4(a)(4)(A). We recognize that

this conclusion works an unfortunate result for Baker. The

result is distressing, given that the clerk‟s office seriously

erred in failing to update Baker‟s address of record until more

than a year had passed from when he notified the District

Court of his move. But as the record before us shows, the

delay in receiving notice of the Dismissal Order is not due to

prison delay, but rather, due to clerk error, which does not

trigger the rule of Fiorelli and Long.19

Although we do not have jurisdiction over the

Dismissal Order, we do have jurisdiction over the District

Court‟s orders denying Baker‟s motions for reconsideration

because Baker filed a timely notice of appeal as to those

orders. The District Court properly denied Baker‟s motions

for reconsideration because as the District Court concluded

and we agree, they were untimely; the District Court was

19

In the mine run of cases, either Appellate Rule 4(a)(6) will

be available to allow reopening the time to file an appeal or

Appellate Rule 4(a)(5) will be available to allow an extension

of time to file an appeal when a litigant—whether a pro se

prisoner or not—has not received notice of the appealable

order in a timely fashion. Indeed, these Rules should be

available regardless of whether the delay is attributable to

clerk‟s office error or prison official error, because in the

normal case, notice will be received, even if somewhat

delayed, less than 180 days after the entry of the order sought

to be appealed.

30

clearly entitled to enforce the timing requirements of Rule 59.

See supra note 14. Also, the District Court did not err in

concluding that it need not hold an evidentiary hearing to

determine whether prison delay caused Baker to receive the

Dismissal Order late. Although the District Court based its

decision on the reasoning of Poole that we have found to be

incorrect, see supra note 17, the ultimate ruling was correct

because the available evidence conclusively shows that the

delay was not caused by prison officials. Accordingly, fact-

finding under Fiorelli is unnecessary.

III. Conclusion

For the foregoing reasons, we will affirm the judgment

of the District Court.

31