stating that “our review of the order denying reconsideration is subject to a more deferential and circumscribed standard of review than would apply if we also were to have jurisdiction to consider the underlying dismissal order”
How later courts described this case
- stating that “our review of the order denying reconsideration is subject to a more deferential and circumscribed standard of review than would apply if we also were to have jurisdiction to consider the underlying dismissal order”
- stating that this Court has “jurisdiction to review a timely appealed order disposing of an untimely motion for reconsideration”
- holding that Heck barred a claim that “defendants conspired to obtain a capital murder conviction against [plaintiff]” including by committing perjury and fabricating evidence
- holding that Heck barred claims of conspiracy to obtain a conviction, including acts of fabricating evidence and perjury, because Long’s conviction had not been invalidated
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-4732
_____________
RONALD LONG,
Appellant
v.
ATLANTIC CITY POLICE DEPARTMENT;
JAMES SCOPPA; ERNEST JUBILEE;
NEW JERSEY STATE POLICE;
NANCY J. TAYLOR; LAURA A. BARBATO,
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cv-00785)
District Judge: Hon. Noel L. Hillman
_______________
Argued
November 9, 2011
Before: RENDELL, JORDAN, and GREENAWAY, JR.,
Circuit Judges.
(File: February 13, 2012)
_______________
Alexander Bilus [ARGUED]
Carolyn H. Feeney
Dechert
2929 Arch Street – 18th Fl.
Philadelphia, PA 19104
Counsel for Appellant
Matthew H. Duncan [ARGUED]
Fine, Kaplan & Black
1835 Market Street - #2800
Philadelphia, PA 19103
Amicus Curiae Counsel
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Ronald Long, a New Jersey state prisoner who
proceeded pro se before the United States District Court for
the District of New Jersey, appeals an order of that Court
denying his untimely motion for reconsideration of a prior
order dismissing his complaint. Long relies on Federal Rule
of Appellate Procedure 4(a)(4)(A), which provides that, if a
timely motion for reconsideration under Federal Rule of Civil
Procedure 59(e) is filed, the time to appeal begins to run from
the district court’s disposition of the motion. He reasons that,
here, we can review the underlying dismissal order because
his motion for reconsideration should be deemed timely since
2
mail delay within the prison caused him to file the motion
late.
For the reasons set forth below, we agree with Long
that, in cases where the record supports a finding of delay in
prison mail delivery, such delay may make an untimely Rule
59(e) motion timely so as to permit the exercise of appellate
jurisdiction over an order we would otherwise lack
jurisdiction to review. When the record is insufficient to
support a prisoner’s allegations of prison delay, we may
remand to the District Court for appropriate fact-finding.
Ultimately, however, we rule that the issue of delay need not
be resolved on remand because we have jurisdiction over the
District Court’s denial of reconsideration which, in this case,
proves sufficient.
I. Factual Background and Procedural History
On February 21, 2006, Long filed an in forma pauperis
complaint under 42 U.S.C. § 1983 against the Atlantic City
Police Department, the New Jersey State Police, two police
officers, and two forensic chemists. He alleged that the
defendants conspired to obtain a capital murder conviction
against him by knowingly presenting false evidence at his
trial, and deliberately preventing him from obtaining DNA
testing that would prove his innocence. 1 The complaint
1
In his own words, Long claimed that “the Defendants
violated [his] constitutional and civil rights … by committing
perjury and/or fabricating evidence and engaging in
conspiratorial acts to hide evidence to prevent DNA testing,
causing … [him] to be falsely convicted of capital murder.”
(Amicus App. at 133; see also id. at 137 (alleging a
3
sought monetary damages to compensate him for the
consequences of the alleged conspiracy.
On August 16, 2006, after screening the complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, 2 the District
Court issued a memorandum concluding that Long’s claims
were barred by Heck v. Humphrey, 512 U.S. 477 (1994),
unless and until Long could demonstrate that his state court
conviction was invalid. Accordingly, the District Court
dismissed the complaint sua sponte, even though the
defendants had not yet been served. The Court issued an
accompanying order closing the case that same day. On
August 21, 2006, the memorandum and the order were
entered on the District Court’s docket. Thus, under the rules
then in effect, 3 Long had until September 4, 2006 to file a
conspiracy to “hide the evidence to prevent it from being
DNA tested and to prevent … [Long] from being able to
establish his innocence”).) Citations to “Amicus App.” are to
the Appendix filed by court-appointed Amicus, Fine, Kaplan
& Black, R.P.C. (“Fine Kaplan”).
2
Collectively, those provisions provide that district
courts should screen civil complaints in which a prisoner
seeks redress from a governmental entity or officer, and
dismiss the case if the action is (1) frivolous or malicious; (2)
fails to state a claim on which relief may be granted; or (3)
seeks monetary relief against a defendant who is immune
from such relief.
3
Currently, a “motion to alter or amend a judgment
[under Rule 59(e)] must be filed no later than 28 days after
the entry of the judgment,” Fed. R. Civ. P. 59(e), and “all
deadlines stated in days (no matter the length) are computed
4
motion for reconsideration under Rule 59(e). See Fed. R.
Civ. P. 59(e) (stating the deadline by reference to the “entry
of the judgment”).
He did not do so. Instead, on September 25, 2006,
Long filed 4 a motion for reconsideration along with a letter
brief explaining that he had not received the District Court’s
filings until September 22, 2006 – after the 30-day period to
file an appeal under Appellate Rule 4(a)(1) had lapsed. 5 The
motion for reconsideration claimed that the delay was caused,
in part, by Long’s transfer from one state prison to another.
Specifically, Long claimed that although he had informed the
in the same way,” Fed. R. Civ. P. 6 (Advisory Committee’s
Notes on 2009 Amendments). However, at the time Long’s
case was before the District Court, a 10-day deadline applied,
Fed. R. Civ. P. 59(e) (2006), and time periods involving less
than 11 days were calculated by excluding intermediate
Saturdays, Sundays, and legal holidays, Fed. R. Civ. P. 6(a)
(2006).
4
Long signed his motion on September 25, 2006, and
it was entered on the District Court’s docket on October 2,
2006. Heeding the Supreme Court’s instruction in Houston v.
Lack, 487 U.S. 266 (1988), we presume, for purposes of our
discussion, that Long filed his motion on the date he executed
it. See id. at 276 (“[T]he notice of appeal was filed at the
time petitioner delivered it to the prison authorities for
forwarding to the court clerk.”).
5
While we will make references to the Federal Rules
of Civil Procedure simply as “Rules,” we will use the short-
hand “Appellate Rule” when referring to the Federal Rules of
Appellate Procedure.
5
District Court of his transfer to a new prison, he received the
District Court’s memorandum and order only after they were
sent to his old prison and then forwarded to him. He also
attributed his delayed receipt of those documents to the fact
that officials at his new prison “open Legal Mail outside of
the inmate’s presence.” (Amicus App. at 149.)
On October 4, 2006, the District Court issued a
memorandum treating Long’s motion for reconsideration as
timely because he had “executed his motion on September 25,
2006, within three days of receipt” (Amicus App. at 155), but
rejecting Long’s motion for reconsideration on the merits,
based on Heck. The District Court’s memorandum, as well as
its accompanying order, were entered on the docket on
October 6, 2006. On October 31, 2006, Long signed a notice
of appeal that was therefore timely as measured from the
denial of reconsideration, see Fed. R. App. P. 4(a)(1)(A)
(providing that a notice of appeal must be filed within “30
days after entry of the judgment or order appealed from” in a
case in which the United States or its agent is not a party), but
untimely as measured from the August 16, 2006 order
dismissing the case.
We consolidated Long’s appeal with other cases
presenting similar issues implicating Appellate Rule 4(a) for
the purpose of determining whether, and to what extent, we
have appellate jurisdiction to consider it. 6
6
Those other cases are Baker v. United States, Nos.
08-2288 and 08-2365, Barner v. Williamson, No. 08-1025,
and Cycle Chem, Inc. v. Jackson, No. 09-1320. They are the
subject of separate dispositions.
6
II. Discussion 7
The parties agree that we have jurisdiction to review
the District Court’s order denying Long’s motion for
reconsideration. 8 Long contends that we also have
jurisdiction to review the underlying dismissal order because
his motion for reconsideration should, under Appellate Rule
4(a)(4)(A), toll his time to file an appeal. That Appellate
Rule 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). Although
Long acknowledges that his motion for reconsideration was
late, he asks us to treat it as timely, due to the mail handling
in prison that allegedly delayed his filing.
Our Amicus, Fine Kaplan, takes a contrary view
regarding Long’s attempt to appeal the underlying order of
dismissal. According to Amicus’s view of the law, when
7
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343(a)(3). We have appellate jurisdiction, if at
all, pursuant to 28 U.S.C. § 1291.
8
Because none of the defendants named in Long’s
complaint were served before his complaint was dismissed,
those parties were not present to take a position on the
jurisdictional questions presented in this appeal. To facilitate
our inquiry, we appointed Fine Kaplan to file an amicus brief
on behalf of the Court, and Dechert LLP to file a brief on
behalf of Long. The Court is grateful for the superb
assistance provided by those firms.
7
Long did not receive a copy of the District Court’s dismissal
order until after the 30-day time limit for filing a notice of
appeal had lapsed, his only recourse was to file a motion
under Appellate Rule 4(a)(5) for an extension of time to
appeal, 9 or a motion under Appellate Rule 4(a)(6) to reopen
the time to file an appeal. 10 Because Long filed neither of
those motions and instead filed a motion for reconsideration
under Rule 59(e), Amicus argues that we lack jurisdiction to
review the District Court’s underlying dismissal order.
9
Appellate Rule 4(a)(5) provides, in relevant part, that
the district court “may extend the time to file a notice of
appeal if” a party seeks an extension (1) no later than 30 days
after the otherwise applicable appellate deadline; and (2)
“shows excusable neglect or good cause.” Fed. R. App. P.
4(a)(5)(A)(i)-(ii).
10
Appellate Rule 4(a)(6) provides, in relevant part,
that the district court “may reopen the time to file an appeal
for a period of 14 days” if (1) the court determines the
movant did not receive notice of the entry of the appealable
order within 21 days of its entry; (2) the motion is filed in the
earlier period of 180 days of the appealable order’s entry or
14 days after the moving party receives notice; and (3) the
court determines that no party would be prejudiced by
reopening the time to appeal. Fed. R. App. P. 4(a)(6)(A)-(C).
8
A. Our Jurisdiction to Review the District Court’s
Initial Dismissal Order
We therefore begin our analysis by evaluating whether
we have jurisdiction to review the District Court’s order
dismissing Long’s complaint. That inquiry leads us to
examine two distinct questions.
First, we address whether allegations of prison delay
can excuse the untimeliness of a motion to reconsider under
Rule 59(e) so as to permit us to exercise jurisdiction under
Appellate Rule 4(a)(4)(A) to review the underlying dismissal.
If an untimely Rule 59(e) motion can be considered “timely”
as a result of prison delay, Appellate Rule 4(a)(4)(A) permits
“the time to file an appeal [to] run[] … from the entry of the
order disposing of … [that] motion.” Fed. R. App. P.
4(a)(4)(A). Second, assuming Appellate Rule 4(a)(4)(A) does
provide an avenue for us to reach the underlying dismissal
order, we consider whether there is a temporal limitation on
the operation of that rule that would prevent its application in
circumstances where a Rule 59(e) motion is filed after the
otherwise applicable time period for filing a notice of appeal,
see Fed. R. App. P. 4(a)(1), has lapsed.
We address those questions in turn.
1. Whether Prison Delay Can Render an
Untimely Rule 59(e) Motion Timely
The idea that prison delay may serve to toll the time to
appeal stems from our holding in United States v. Grana, 864
F.2d 312 (3d Cir. 1989), abrogated on other grounds by
Virgin Islands v. Martinez, 620 F.3d 321 (3d Cir. 2010).
9
There, we held that delay by prison authorities in delivering
mail to a prisoner should be excluded in calculating the time
for filing a notice of appeal in a criminal case. See id. at 313.
Although the prisoner in Grana filed a pro se appeal “fifteen
days out of time” under Appellate Rule 4(b), Grana alleged
that the prison had “negligently handled his incoming mail,
and as a result he did not receive the district court’s final
order until May 5, 1988, after the expiration of the appeal
period.” Id. at 314. He consequently argued that, for
purposes of jurisdiction, his appeal should be treated as
having been filed on time. We agreed.
Pointing to the Supreme Court’s adoption of the prison
mailbox rule, 11 we observed that “prison delay beyond the
litigant’s control cannot fairly be used in computing time for
appeal” and 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. We therefore held that, “in
computing the timeliness of pro se prisoners’ appeals, any
prison delay in transmitting to the prisoner notice of the
district court’s final order or judgment shall be excluded from
the computation of an appellant’s time for taking an appeal.”
Id. We remanded the case to the district court to determine
whether the appeal was timely under that standard because
“the record d[id] not show the date the prison received notice
of the district court’s final order or conclusively establish the
11
As mentioned supra note 4, the Supreme Court has
held that a prisoner’s notice of appeal is deemed filed upon
delivery to the prison mail system. See Houston, 487 U.S. at
276. A variation of that rule is currently embodied in
Appellate Rule 4(c).
10
date the prison transmitted the notice to [the] appellant.” Id.
We instructed that, on remand, the prison would have “the
burden … of establishing the relevant dates” because the
prison was best equipped to provide that information. Id.
In United States v. Fiorelli, 337 F.3d 282 (3d Cir.
2003), we extended the Grana rule to permit an untimely
motion for reconsideration to be made timely so that it would,
in turn, toll the time to appeal under Appellate Rule
4(a)(4)(A). Fiorelli filed a civil case under 28 U.S.C.
§ 2255, 12 mounting a collateral attack on his criminal
conviction. Id. at 284. His claim for relief was denied by the
district court on April 9, 2001. Id. at 285. On April 30, 2001,
outside of the then-applicable 10-day period for filing a
motion for reconsideration but within the 60-day period for
filing a notice of appeal, see Fed. R. App. P. 4(a)(1)(B)
(providing that a notice of appeal must be filed within “60
12
After first observing that the time to appeal an order
entered on a § 2255 motion is governed by Appellate Rule
4(a), we began our tolling discussion in Fiorelli by evaluating
“the applicability of the Federal Rules of Civil Procedure to
[Fiorelli’s] § 2255 motion.” Fiorelli, 337 F.3d at 285. We
stated that we were considering “the requirement under Civil
Rule 58 that judgments be set forth on a separate document
and entered in the docket of the district clerk, and the time
limitations accompanying motions for reconsideration under
Civil Rules 59 and 60,” id. at 286; we concluded that those
civil rules applied in the § 2255 context, see id. at 286-87;
and we proceeded to evaluate whether Fiorelli’s untimely
motion under Rule 59(e) could permit his appeal to be
properly filed under Appellate Rule 4(a)(4)(A), see id. at 287-
88.
11
days after entry of the judgment or order appealed from” in a
case in which the United States or its agent is a party), he
filed what the Fiorelli court ultimately construed as a Rule
59(e) motion for reconsideration, Fiorelli, 337 F.3d at 285,
288. The district court denied that motion on May 18, 2001,
and Fiorelli filed a notice of appeal on July 17, 2001. Id.
Thus, as in this case, Fiorelli’s notice of appeal was
timely as measured from the denial of the untimely motion
for reconsideration, but was otherwise untimely. Fiorelli
alleged, however, that he received the district court’s original
order “during the normal mail distribution at the federal
prison where he [was] confined,” 13 days after the district
court issued the order denying his § 2255 claim. Id. at 288
(internal quotation marks omitted). The question, therefore,
was whether Fiorelli’s delayed receipt of the original order,
which delay was allegedly caused by prison officials, should
result in his untimely motion for reconsideration being
viewed as timely, thereby rendering his appeal of the original
order denying his § 2255 claim timely under the provisions of
Appellate Rule 4(a)(4)(A). See id. (“Fiorelli’s appeal may be
properly filed if his motion for reconsideration is deemed
timely, thus invoking the tolling provision of Appellate Rule
4(a)(4)(A).”).
We answered that there was “no reason why Grana’s
exclusion of prison delays from the time limits of
jurisdictionally sensitive filings should not apply to motions
for reconsideration,” inasmuch as such deadlines are “critical
to appellate jurisdiction.” Id. at 289. It followed 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
12
se inmates.” Id. at 289-90. While we emphasized that the
tolling rule requires a prisoner to allege that actual delay or
interference in mail delivery was caused by the prison, we
were satisfied that Fiorelli’s “statement that he received the
District Court’s order during the normal mail distribution”
could refer to such interference and remanded for the district
court to determine whether the tolling rule could be properly
invoked. Id. at 290 (internal quotation marks omitted). As
we did in Grana, we instructed the district court to undertake
factual findings as to “the relevant dates of the prison’s
receipt and delivery of the District Court’s order” so that, on
review, we could make a “determination of our jurisdiction.”
Id.
Notwithstanding Fiorelli’s extension of the Grana
tolling principle to a case governed by the Federal Rules of
Civil Procedure and Appellate Rule 4(a), we seemed to reject
that approach in Poole v. Family Court of New Castle County,
368 F.3d 263 (3d Cir. 2004). In Poole, a pro se prisoner filed
an untimely notice of appeal, “apparently because of delay in
receiving notice of the entry of the order dismissing his
claims.” Id. at 264. Citing Grana, Poole argued that “his
[otherwise untimely] notice of appeal should be regarded as
having been filed on time because there was a delay in his
receipt of notice from the district court clerk’s office
regarding the entry of the order of dismissal.” Id. That delay
was allegedly the result of “Poole’s transfer from one
correctional institution to another shortly before the order of
dismissal was entered.” 13 Id. at 264-65. Without mentioning
13
More specifically, the delay in Poole occurred
because the clerk’s office mailed the notice to a prison where,
by the time the letter arrived, Poole was no longer
13
Fiorelli, we concluded that the Grana tolling rule did not
apply, distinguishing Poole’s appeal because it – unlike the
appeal in Grana – occurred in a civil case, id. at 265-66, and
because “the delay was not primarily due to Poole’s status as
an inmate but to the simple fact that he was moved,” id. at
266 n.4. Poole’s proper remedy, we explained, would have
been to file a motion to reopen in accordance with Appellate
Rule 4(a)(6). See id. at 266-67.
While Poole is plainly in tension with Fiorelli, 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. In Fiorelli, the delay in the prisoner’s
receipt of the order was allegedly the result of the prison’s
handling of the mail. It was, in other words a classic prison
delay case, after the manner of Grana. In Poole, by contrast,
the delay allegedly was caused by the clerk’s office and did
not stem from actions or omissions by prison officials. Cf.
Fiorelli, 337 F.3d at 289 (“Grana makes clear that only
incarcerated. Poole, 368 F.3d at 265. Poole had sent two
letters to the district court concerning his change in address.
The first, received just before the order was mailed to him,
stated that Poole would be “returning to P.A. 3-24-02 is my
Max out date and then my detainer come up.” Id. It did not
contain any Pennsylvania address or request a change in
address. The second letter, received just after the order was
sent, contained Poole’s new address but “did not state
expressly that Poole’s address had changed and did not
request that the clerk change the address listed on the docket.”
Id. As a result, it did not alert the clerk’s office that the order
“sent a few days earlier had been mailed to a facility where
Poole was no longer housed.” Id.
14
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)).
We therefore read Fiorelli to articulate a still-
controlling rule that applies when delay is allegedly caused by
actions or omissions of prison officials in the delivery of mail
to a prisoner litigating pro se. 14 We reaffirm that we can view
a Rule 59(e) motion as timely in such situations, allowing us
to exercise jurisdiction pursuant to Appellate Rule 4(a)(4)(A)
over an appeal of the underlying case-dispositive order, if the
delay in filing the Rule 59(e) motion is caused by “a prison’s
actual delay or interference in the delivery of a final order of
the district court.” 15 Id. at 289. Thus, when a pro se prisoner
14
We note that in Fiorelli the pro se prisoner
attempted to toll the deadline for filing a motion for
reconsideration under Rule 59(e) so as to permit an appeal in
accordance with Appellate Rule 4(a)(4)(A). In Poole, by
contrast, the pro se prisoner attempted to toll the deadline for
filing a notice of appeal under Appellate Rule 4(a)(1). Given
recent Supreme Court precedent, see Bowles v. Russell, 551
U.S. 205 (2007), that distinction may be a significant one.
However, as discussed infra in Part II.A.2, the question of
whether prison delay tolling principles are applicable to
deadlines that are jurisdictional in character, such as
Appellate Rule 4(a)(1), is not implicated in this case because
Long seeks only to have us deem his Rule 59(e) motion
timely.
15
That is not to say, of course, that a pro se prisoner
who experiences mail delay does not have other avenues that
15
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 be reconsidered, the district court
should engage in the fact-finding necessary to a jurisdictional
analysis under Appellate Rule 4(a)(4)(A). See id. (“The
timeliness of a motion under … Civil Rule 59 … is critical to
appellate jurisdiction.”). In some instances, such as when the
prisoner’s allegations are uncontested, the district court may
of course choose to credit what the prisoner says. There
ought, however, also be some effort to confirm that the order
was sent to the prisoner’s correct prison address and an
explicit determination that the prisoner’s allegations as to the
date of receipt are accepted as being true. 16 We then, in turn,
can serve to preserve his or her appellate rights. Appellate
Rules 4(a)(5) and 4(a)(6), see supra notes 9-10, both provide
means to do so, and are undoubtedly a more direct route to
securing access to an appellate courtroom. Cf. Poole, 368
F.3d at 266-67 (discussing requirements for relief under
Appellate Rules 4(a)(5) and 4(a)(6)). Indeed, when
confronted with his delayed receipt of the District Court’s
memorandum and order in this case, Long would have been
far better served by filing one of those motions rather than the
motion for reconsideration he instead filed, as our ability to
review the District Court’s initial order of dismissal turns on
whether his allegations of prison delay can be credited.
16
Because the timeliness of a motion for
reconsideration implicates our power to hear an appeal under
Appellate Rule 4(a)(4)(A), a bare statement that the prisoner’s
allegations are assumed to be true will not do. Some kind of
fact-finding is essential. We note, moreover, that making
assumptions about timeliness could be viewed as an extension
16
would accept any such fact-finding as long as it was not
clearly erroneous. Even when the district court determines it
needs further information to decide whether the prison
actually delayed or interfered with a prisoner’s receipt of an
order, we are not suggesting that a hearing will be necessary;
we are instead directing only that, in such a case, the prison
has the burden of providing evidence of the date it received
the district court’s final order and the date on which it was
transmitted to the appellant. See Grana, 864 F.2d at 316. As
a practical matter, this should add no burden to prison record-
keeping because prison officials have, at least since Grana,
been on notice that they should maintain “clear and accurate
mail logs.” Id.
In the present case, Long certified 17 that his delayed
receipt of the District Court’s memorandum and order was a
result of two things: first, that those documents were
incorrectly mailed to his old prison, and second, that his new
of time to file a motion for reconsideration. That would be
inappropriate, given the explicit instruction in Rule 6 that
time extensions for certain motions, including motions
pursuant to Rule 59(e), are forbidden. See Fed. R. Civ. P.
6(b)(2) (“A court must not extend the time to act under Rules
50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).”). District
courts should of course heed that direction and hew strictly to
the stated time limits, unless there is prison delay that serves
as a basis for treating an untimely motion as timely.
17
Long supported his allegations with a certification
that stated his view of the facts and contained an averment
that “a willfully false statement [would] subject [him] to
punishment.” (Amicus App. at 150.)
17
prison opened legal mail before delivering it to prisoners.
Thus, although some portion of the delay was allegedly
caused by the District Court’s clerk’s office and any such
time lost would not count towards making Long’s untimely
motion for reconsideration timely, some of the delay was also
allegedly a consequence of prison delay, as Long complains
of his new prison’s practice of opening legal mail before
sending it to inmates. We cannot sort out these alleged
sources of delay, however, because the District Court made
no express finding as to whether the prison actually delayed
or interfered with Long’s receipt of its order, and the record
before us does not indicate when the prison where Long
currently resides received the District Court’s memorandum
and order or when it transmitted those documents to Long.
We would therefore ordinarily remand to the District Court to
find those facts.
2. Whether There is a Temporal Limitation
on Fiorelli’s Tolling Rule
Our Amicus, however, indicates that remand would be
fruitless here since there is a 30-day outer time limit (or 60-
day, when the United States or its agent is a party) on
Fiorelli’s tolling rule because Appellate Rule 4(a)(1) imposes
that jurisdictional time limit on the filing of a notice of
appeal. Amicus’s argument is based on the Supreme Court’s
decision in Bowles v. Russell, 551 U.S. 205 (2007). In that
case, the Supreme Court held that timing requirements for
filing notices of appeal, as set forth in 28 U.S.C. § 2107 and
from which Appellate Rule 4(a)(1) is derived, are mandatory
and jurisdictional, and, as such, a court has no power to create
equitable exceptions to them. 551 U.S. at 214. As we discuss
more fully in the companion case filed today, Baker v. United
18
States, Nos. 08-2288 and 08-2365, there is no doubt after
Bowles that the rules listed in 28 U.S.C. § 2107, one of which
is restated in Appellate Rule 4(a)(1), are jurisdictional.18
18
Though the subject of discussion at oral argument,
we need not consider whether Appellate Rule 4(a)(4)(A) is
likewise jurisdictional, or instead, a claims-processing rule.
Although we similarly did not resolve that issue in Lizardo v.
United States, 619 F.3d 273 (3d Cir. 2010), that decision
implies that Appellate Rule 4(a)(4)(A) is a claims-processing
rule because it – much like Rule 59(e) (and unlike Appellate
Rule 4(a)(1)) – does not appear in a statute and was
promulgated under the Rules Enabling Act. See Lizardo, 619
F.3d at 277 (“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.”). We do note, however, 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). See United States v.
Mitchell, 518 F.3d 740, 750 (10th Cir. 2008) (recognizing
that, where “a rule implicates judicial interests beyond those
of the parties, it may be appropriate for a court to invoke the
rule sua sponte in order to protect those interests,” and
holding that the court had the power to enforce claims-
processing rules by way of a sua sponte dismissal). In fact,
given the administrative and institutional interests in
enforcing appellate deadlines notwithstanding the parties’
actions before us, a persuasive argument can be made that sua
sponte dismissal should be the rule rather than the exception.
See id. at 754 (Lucero, J., dissenting) (“I would dismiss
almost all untimely appeals, regardless of whether an appellee
forfeits its objection by not properly raising it.”).
19
Because of that, and because Fiorelli tolling can permit a
litigant entitled to its application to file a notice of appeal
from the original order after Appellate Rule 4(a)(1)’s
jurisdictional deadline has lapsed, our Amicus has taken the
position that Fiorelli cannot allow an untimely motion for
reconsideration to be deemed timely for purposes of
Appellate Rule 4(a)(4)(A) if that motion is filed after the
expiration of the 30- or 60-day jurisdictional period for filing
a notice of appeal under Appellate Rule 4(a)(1). Were we to
hold otherwise, Amicus warns, we would be allowing, and
perhaps encouraging, an end-run around Appellate Rule
4(a)(1)’s jurisdictional deadline.
But Amicus’s argument is misplaced. Properly
viewed, the Fiorelli tolling rule does not extend any of the
deadlines set forth in 28 U.S.C. § 2107 and Appellate Rule
4(a)(1). Rather, it concerns the “timeliness” of a motion for
reconsideration, which then determines, under Appellate Rule
4(a)(4)(A), the orders over which we can exercise
jurisdiction. When facts are found that demonstrate prison
delay, all that Fiorelli does is allow us to, by excluding the
time lost due to prison delay, deem as timely what would
otherwise be an untimely motion for reconsideration. After
subtracting such time, the prisoner must still file his appeal
within 30 (or 60) days of the district court’s disposition of his
motion. If he does so, he will be considered to have properly
filed his appeal in accordance with Appellate Rule 4(a)(4)(A).
Fiorelli’s tolling rule is nothing more than an application of
the principle from Houston v. Lack, 487 U.S. 266 (1988) that
time lost due to prison delay “cannot fairly be used in
computing time for appeal.” Grana, 864 F.2d at 316.
20
It is quite possible, then, that, after fact-finding by the
District Court, we could conclude that we do have jurisdiction
to consider the District Court’s underlying order that
dismissed Long’s complaint. Our usual practice would
therefore be to remand for the District Court to find the facts
that “are essential for a determination of our jurisdiction”
over that order. Fiorelli, 337 F.3d at 290. That step is
unnecessary in this case, however, since we agree with the
parties that we have jurisdiction to consider Long’s appeal to
the extent he challenges the District Court’s denial of his
motion for reconsideration, 19 which proves sufficient in this
case.
B. The District Court’s Denial of Reconsideration
We acknowledge that our review of the order denying
reconsideration is subject to a more deferential and
circumscribed standard of review than would apply if we also
19
Earlier precedent considered any “sub[s]tantive
action a court takes on an untimely motion … a nullity.”
Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858, 861
(3d Cir. 1970). More recent authority, however, establishes
that we “can no longer treat Rule 59(e) as a jurisdictional
rule, nor view … [an] untimely motion for reconsideration as
a nullity.” Lizardo, 619 F.3d at 277. It logically follows that
a district court’s action on such a motion can, likewise, not be
deemed a nullity, and we therefore have jurisdiction to review
a timely appealed order disposing of an untimely motion for
reconsideration. However, because any such order is
appealable in its own right, the filing fee waiver provided for
in Appellate Rule 4(a)(4)(B)(iii) does not apply to a notice of
appeal challenging the disposition of the untimely motion.
21
were to have jurisdiction to consider the underlying dismissal
order, as we review only whether the District Court’s denial
of reconsideration constitutes an abuse of discretion. 20 See,
20
If we had jurisdiction to consider the underlying
order, we would exercise plenary review to determine
whether the District Court properly dismissed Long’s
complaint. See Tourscher v. McCullough, 184 F.3d 236, 240
(3d Cir. 1999). Some cases intimate that our review of an
order denying reconsideration is, likewise, plenary to the
extent that “the denial of reconsideration is predicated on an
issue of law.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); see N. River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1203 (3d Cir.
1995) (“Where a district court’s denial of a motion to
reconsider is based upon the interpretation of legal precepts,
however, our review of the lower court’s decision is
plenary.”). That idea, however, stems from the understanding
that “an appeal from a denial of a Motion for Reconsideration
brings up the underlying judgment for review,” McAlister v.
Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992) (citing
Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348-49 (3d
Cir. 1986)), which is only true to the extent that Appellate
Rule 4(a)(4)(A) allows “the time to file an appeal [to] run[]
for all parties from the entry of the order disposing of” a
timely filed Rule 59 motion, Fed. R. App. P. 4(a)(4)(A)(v);
see Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675
F.2d 77, 78 (3d Cir. 1982) (“A timely appeal from an order
denying a Rule 59 motion to alter or amend brings up the
underlying judgment for review.” (citing Fed. R. App. P.
4(a)(4))). Thus, when there is no timely filed post-judgment
motion to trigger Appellate Rule 4(a)(4)(A)’s tolling
provisions and when an appeal is untimely as measured from
22
e.g., Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)
(“[T]he appropriate standard of review [of an appeal from the
district court’s denial of a Rule 59 motion] is for an abuse of
discretion.”). Consequently, in the ordinary case, we would
not assume that reviewing a denial of reconsideration would
be functionally the same as reviewing the underlying order,
even if the former covered all of the same issues as the latter.
However, though we are bound by an abuse of
discretion standard in reviewing the denial of reconsideration,
it would indeed be an abuse of discretion in this case if the
District Court were wrong in saying that Heck required
dismissal of Long’s complaint. See Planned Parenthood of
Cent. N.J. v. Att’y Gen. of the State of N.J., 297 F.3d 253, 265
(3d Cir. 2002) (“[A] court abuses its discretion when its
ruling is founded on an error of law or a misapplication of
law to the facts.” (internal citation omitted)). Thus, even
though we cannot conclude on this record whether we have
jurisdiction to exercise plenary review to consider whether
the District Court erred in dismissing Long’s complaint, the
legal question presented is essentially the same under either
plenary or abuse-of-discretion review: whether the District
Court correctly found Long’s complaint to be barred by Heck.
In Heck, the Supreme Court held that a § 1983 suit
should be dismissed when a “judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence … unless the plaintiff can demonstrate
that the conviction or sentence has already been invalidated.”
512 U.S. at 487. Here, Long’s complaint seeks the sort of
the underlying judgment, we cannot exercise plenary review
over an order disposing of a motion for reconsideration.
23
relief that is plainly barred by Heck because he seeks § 1983
relief on the ground that the defendants conspired to obtain a
capital murder conviction against him, but he has not
demonstrated that his conviction has already been invalidated.
(See Amicus App. at 133 (alleging that “the Defendants
violated [Long’s] constitutional and civil rights … by
committing perjury and/or fabricating evidence and engaging
in conspiratorial acts to hide evidence to prevent DNA
testing, causing … [Long] to be falsely convicted of capital
murder”).) Although the Supreme Court has clarified that
Heck does not bar a litigant from seeking access to DNA
evidence through § 1983, see Skinner v. Switzer, 131 S. Ct.
1289, 1298 (2011), the conspiracy described in Long’s
complaint does not, even liberally construed, seek such relief.
Therefore, we hold that the District Court committed
no legal error in denying Long’s motion for reconsideration,
and so did not abuse its discretion in declining to change its
order dismissing Long’s complaint. And because the same
result would obtain were we to ultimately determine that we
have jurisdiction to review the District Court’s dismissal
order, we need not remand for Fiorelli fact-finding.
III. Conclusion
For the foregoing reasons, we will affirm the judgment
of the District Court.
24