Amicus Curiae Brief — Bowles v. Russell

OG i

No. 06-5306

In the Supreme Court of the United States

KEITH BOWLES, PETITIONER

Vv.

HARRY RUSSELL, WARDEN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

ERIc D. MILLER

Assistant to the Solicitor

General

DOUGLAS N. LETTER

LOWELL V. STURGILL, JR.

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a court of appeals may excuse the untimely

filing of a notice of appeal in a civil case, where the

district court has reopened the filing period for 17 days

under Federal Rule of Appellate Procedure 4(a)(6),

rather than the 14 days permitted by the rule, and the

appellant filed his notice within the time set by the

district court but not within the time allowed by the

rule.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ......................20200- 1

PL cn cecG Cau dektieseeds subénncedseckedeaeukeucs 2

INNIS, o vo ccacdccncvacedsednudienneneces 6

Argument:

The court of appeals correctly dismissed this case

because petitioner’s notice of appeal was untimely ....... 8

A. The filing of a timely notice of appeal in a civil case

is a jurisdictional requirement ..................... 8

1. Historically, deadlines set by Congress for no-

tices of appeal have been regarded as jurisdic-

Cs eh cnndduedecds.4ctidekebdsbecnietinese 10

2. Recent decisions treating certain deadlines

as “claim-processing rules” do not apply to

Ds chk edccnveresdausehCenthceneus eas 11

3. The deadlines in Rule 4(a) are jurisdictional ..... 16

B. Even if Federal Rule of Appellate Procedure 4 is

not jurisdictional, it is a mandatory rule that must

be enforced when properly asserted .............. 17

1. Respondent properly objected to the untime-

liness of petitioner’s notice of appeal ........... 18

2. The time limit set out in Federal Rule of Appel-

late Procedure 4(a)(6) is not subject to equitable

ID bv nd cncudcubnsccccccivaneedciuss 20

3. The district court may not enter a second order

reopening the time to file a notice of appeal ... . . 26

SN Sco bc cc Che aaGLoatine hase ARR ORKE MEER een 28

(IIT)

IV

TABLE OF AUTHORITIES

Page

Cases:

Alva v. Teen Help, 469 F.3d 946 (10th Cir. 2006) ..... 9,17

Arnold v. Wood, 238 F.3d 992 (8th Cir.), cert. denied,

er eau saheee 9

Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S.

I i te Be 11

Bailey v. Sharp, 782 F.2d 1366 (7th Cir. 1986) ......... 24

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) ..... 17

Becker v. Montgomery, 523 U.S. 757 (2001) ......... 9, 21

Browder v. Director, Dep’t of Corr., 434 U.S. 257

BND et in te ee a ig oss ees hl 7, 9, 22, 23

Budinich v. Beckton Dickinson & Co., 486 U.S. 196

DD cvccedauideienGadcveuwiles acabGnakeweadhs 640 9

Cannon v. University of Chicago, 441 U.S. 677 (1979) ... 11

Cellular Telecomms. & Internet Ass’n v. FCC, 330

ae ee Cn. COP. TED ccc cccccccctevvcccccces 16

Connecticut Fire Ins. Co. v. Oldendorff, 73 F. 88 (9th

DU cciecvkee Jivueadutdvecdvendesegkns cess 10

Deal v. Cincinnati Bd. of Educ., 402 U.S. 962 (1971)... 15

Department of Banking v. Pink, 317 U.S. 264 (1942) ...14

Eberhart v. United States, 546 U.S. 12

PEE pOGdaduabaieckcewssietoxsier 4, 6, 11, 13, 18, 22

FEC vy. NRA Political Victory Fund, 513 U.S. 88

EE pe Eee dete ns eka chadeenesiees 14

Florilli Corp. v. Pena, 118 F.3d 1212 (8th Cir. 1997) .... 16

Ford Motor Co. v. Department of Treasury, 323 U.S.

I aN ae ot a le ee as i ga oe 23

Cases—Continued: Page

Fuesting v. Zimmer, Inc., 448 F.3d 936 (7th Cir.

2006), cert. denied, No. 06-685 (Jan. 22,2007) ....... 19

Gochis v. Allstate Ins. Co., 16 F.3d 12 (1st Cir. 1994) ....9

Green v. City of Lynn, 87 F. 839 (1st Cir. 1898) ........ 11

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56

GOURD ov vcccccceesceuheneekesaess anna 10

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) .... 20

Harris Truck Lines, Inc. v. Cherry Meat Packers,

Fuec., 73 UB. TER GD oo vcs vcsesctsssvesess 5, 7, 22

Hohn v. United States, 524 U.S. 236 (1998) ............. 9

Houston v. Lack, 487 U.S. 266 (1988) .............. 17, 23

Jackson v. Crosby, 437 F.3d 1290 (11th Cir.), cert.

denied, 127 S. Ct. 240 (2006) ........... cece eee eee 9

Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004) ......... 15

Kontrick v. Ryan, 540 U.S. 443 (2004) ..2........ passim

Lapides v. Board of Regents of Univ. Sys., 535

FG | rer ee ey 23

Lawrence v. Florida, No. 05-8820 (Feb. 20, 2007) ...... 25

Maksymchuk v. Frank, 987 F.2d 1072 (4th Cir. 1993) .... 9

Mathias v. WorldCom Techs., Inc., 535 U.S. 682

GUID sins vousnscauascuueeceian nee a

Northwest Airlines, Inc. v. Spirit Airlines, Inc.,

of fee | er re ee 15

Osterneck v. Ernst & Whinney, 489 U.S. 169

CORRES » o uuuveecesceeesosasnenaeeee 5, 8, 24

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365

CRPUEP cvncecocveceteteuceecue seperate 14

Panhorst v. United States, 241 F.3d 367 (4th Cir.

BEE) vocntcvdcosscveceesebecuceede eee 23

VI

Cases—Continued: Page

Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d

ee ie ie lcaseues ede eared 23

Rodgers v. Watt, 722 F.2d 456 (9th Cir. 1983) ........... 9

Rotella v. Wood, 528 U.S. 549 (2000) .............646. 20

Scarborough v. Pargoud, 108 U.S. 567 (1883) .......... ll

Schacht v. United States, 398 U.S. 58 (1970) ........... 14

Sibbach v. Wilson & Co., 312 U.S. 1(1941) ............ 14

Smith v. Evans, 853 F.2d 155 (3d Cir. 1988) ......... 9, 23

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

i hit cbteesh ete teddeded ces edvenrereceess¢ 12

Stevens v. Clark, 62 F. 321 (7th Cir. 1894) ............. 10

Stone v. INS, 514 U.S. 386 (1995) ............2--20 eee 15

Teague v. Regional Comm’r of Customs, 394 U.S. 977

ee ee eee ce deb peneedeosees 15

Terket v. Lund, 623 F.2d 29 (7th Cir. 1980) ............. y

Thompson v. INS, 375 U.S. 384 (1964)... 2.2... 00.. 8, 22

Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) .... 9

United States v. Baxter, 51 F. 624 (8th Cir. 1892) ...... 10

United States v. Beggerly, 524 U.S. 38 (1998) ....... 20, 21

United States v. Brockamp, 519 U.S. 347 (1997)... . 20, 22

United States v. Curry, 47 U.S. (6 How.) 106 (1848) .... 11

United States v. Leijano-Cruz, 473 F.3d 571 (5th Cir.

a esenest 16

United States v. Locke, 471 U.S. 84 (1985) ............ 22

United States v. Robinson, 361 U.S. 220 (1960) ......... x

United States v. Singletary, 471 F.3d 193 (D.C. Cir.

el SEEN REE 2 oe 19

Vil

Cases—Continued: Page

United States v. Vanness, 85 F 3d 661 (D.C. Cir.

DEED cvdacbecensteeendtebaneeeeusRéeceeadereset 12

United States ex rel. McAllan v. City of New York,

248 F.3d 48 (2d Cir. 2001), cert. denied, 535 U.S.

PED cccbandubchon danddbusddsbaeenuhesseedns vy)

Wilkens v. Johnson, 238 F.3d 328 (5th Cir.), cert.

denied, 533 U.S. 956 (2001) ............ cece eesceees i)

Wolfsohn v. Hankin, 376 U.S. 203 (1964) ............. 23

Constitution, statutes and rules:

PG RAPD necccnsdsdwenndeedescvceceuec 13

Administrative Orders Review Act of 1950

(Hobbs Act), Pub. L. No. 101-474, 104 Stat. 1097 ..... 15

Circuit Court of Appeals (Evarts) Act, ch. 517,

DED Hividabnasascénbabnovnnticosenesawens 10

CIT 14: 6p dncatianesedesdeceneubece 10

DET, <cichtgbbesbuneddaccvedén net 10

Rules Enabling Act, 28 U.S.C. 2072 ...............-. 6,13

DRG cvs ccudhacteenndnasaseavelsusenseake 17

LD Scdniccecotadvasnieeeeheceunwenter 27

ee oak eases nent 14

DUE. 6oveddsccedesisensovesssecssave passim

LD ocadacntdciavennavendescepadanbuns 16

EE RE pe ee OL erie 16

I a ts rd 27

ND 6b Sn ccvecdnntvbuessdeotsadoans 5, 16

I oo gg ale dtd sik ered ee cae ahaa 4

BP ED 6 occcedcceddeccaccescscodscdedeues 25

Vill

Statutes and rules—Continued: Page

EE i cdakidcaadddpuceundssduedesekeesees 16

Fed. R. App. P

Rule 1:

Advisory committee’s note (1979) ............... 21

DEY cdc ckacecdedeeuehbendbhaeneodetel 21

Dy di attenebbaanseution dsedeodeetndbeatesbedbes 9

Advisory committee’s note (1967) ................ 9

i <12)deiinduachtGnulnonnneedie cabunadedta 25

DE ccidgishovanstsdetinbedusesededtabnsens 9, 21

Advisory committee’s note (1991) ............... 27

DD Wither denmitnsdgnkeaessbasaneee 6, 16, 17, 21

DE 54 c4c¢ednbhadecdsctadndcnsenekdeuet 7, 21

DED accncddecuuabastatetonshtwuees 2,16

Eo ad i ine endhehieaniel 21, 22

DE i ducdspduadeakhesneensanecnees passim

ED “sci und iu ieewnegeneneekeianaenel 27

DD Side cue dceudband shenestuunbesdanedanel 16

Dt ttciscagaebendakedsobbaeenekanheckien 27

Se i i ek dated ee a ele 21

DICED kcpeneckeccsdeucncencsvedcncensesde 25

PL PO GIPEED scccccncncvescenceweseccesa 12

Fed. R. Civ. P.:

SD chu bieidend eed heen eeneendekine halal 21

a da ee i ie aad 22

Fed. R. Crim. P.:

SRN EW Ae Ne MRE rete RSD tay MEA 13

IX

Rules—Continued: Page

DT: cidestccddesgeabhinutedetuckedebeens 13

Sup. Ct. R.:

Dt ncicctelpbushtiagacuebadakescnaanaddehes 14

DEEN Sesubeudsenaciduues vieWabedessedaiixad 14

Dt .tsctadddbisebsctnhbns biedsaadeddennt 14

In the Supreme Court of the Gnited States

No. 06-5306

KEITH BOWLES, PETITIONER

v.

HARRY RUSSELL, WARDEN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a court of

appeals may excuse an appellant’s untimely filing of a

notice of appeal, where the district court has purported

to extend the time for filing for longer than permitted

by Federal Rule of Appellate Procedure 4(a)(6). The

United States and its agencies are the Nation’s most

frequent litigants. Because this Court’s resolution of

the question presented can be expected to affect the

conduct of litigation in which the government is in-

volved, the United States has a significant interest in

the disposition of this case. More generally, as a fre-

quent litigant, the United States has a vital interest in

the consistent and predictable application of established

rules of procedure. The United States has previously

(1)

2

participated as amicus curiae in cases raising similar

issues. See, e.g., Kontrick v. Ryan, 540 U.S. 443 (2004).

STATEMENT

1. Petitioner was convicted of murder in an Ohio

court and sentenced to imprisonment for 15 years to life.

J.A.14. After his conviction was affirmed on direct re-

view, petitioner, who was represented by counsel,

sought habeas relief in federal district court. J.A. 14-22.

The district court referred the case to a magistrate

judge, who recommended that the petition be denied.

J.A. 89-104. The district court adopted the magistrate’s

findings and denied the petition. J.A. 140-141.

Petitioner then moved for a new trial or to amend

the judgment. J.A. 143-144. The district court denied

both motions in an order entered on September 9, 2003.

J.A. 145. Under Federal Rule of Appellate Procedure

4(a)(1)(A), the time for filing a notice of appeal expired

30 days later, on October 9. See Fed. R. App. P.

4(a)(1)(A) (“In a civil case, * * * the notice of appeal re-

quired by Rule 3 must be filed with the district clerk

within 30 days after the judgment or order appealed

from is entered.”).

On December 12, 2003, petitioner moved to reopen

the time for filing a notice of appeal on the ground that

he had not received timely notice of the district court’s

order. J.A. 147. He relied on Rule 4(a)(6), which he

quoted in its entirety:

Reopening the Time to File an Appeal. The district

court may reopen the time to file an appeal for a pe-

riod of 14 days after the date when its order to re-

open is entered, but only if all the following condi-

tions are satisfied:

3

(A) the motion is filed within 180 days after the judg-

ment or order is entered or within 7 days after the

moving party receives notice of the entry, whichever

is earlier; and

(B) the court finds that the moving party was enti-

tled to notice of the entry of the judgment or order

sought to be appealed but did not receive the notice

from the district court or any party within 21 days

after entry, and;

(C) the court finds that no party would be preju-

diced.

J.A. 148."

On February 10, 2004, the district court granted the

motion to reopen. J.A. 151. Under Rule 4(a)(6), the

notice of appeal was unambiguously due 14 days later,

on Tuesday, February 24. In its order, however, the

district court erroneously stated that petitioner had

until February 27 to file. /bid. (“Appeal to be filed by

2/27/04.”). Petitioner filed a notice of appeal on Febru-

ary 26. J.A. 153.

2. The court of appeals issued an order to show

cause why the appeal should not be dismissed on the

' In 2005, paragraphs (A) and (B) were amended “to specify more

clearly what type of ‘notice’ of the entry of a judgment or order

precludes a party from later moving to reopen the time to appeal” or

“triggers the 7-day period to bring a motion to reopen,” and “to set

forth more logically the conditions that must be met before a district

court may reopen the time to appeal.” Fed. R. App. P. 4(a)(6) advisory

committee's note (2005). The 2005 amendment did not alter the first

clause of the rule, which gives the district court authority to reopen the

filing time “for a period of 14 days.” Therefore, the changes are not

relevant to this case.

4

ground that the notice of appeal was untimely. J.A. 154-

155. After receiving petitioner’s response, a motions

panel dismissed the appeal for lack of jurisdiction “as it

applies to” the district court’s judgment and denial of

petitioner’s motions for new trial or to amend the judg-

ment, but held that “[t|]he appeal is timely filed as it ap-

plies to the February 10, 2004 ruling.” J.A. 161.

Thereafter, construing the appeal as an application

for a certificate of appealability, see 28 U.S.C. 2253(c),

the court denied a certificate. J.A. 162-163. Petitioner

sought rehearing, and a motions panel granted a certifi-

cate of appealability. J.A. 174. The appeal was then

briefed and submitted to a merits panel.

3. The court of appeals determined that the appeal

was untimely, and it dismissed for lack of jurisdiction.

J.A. 192.

The court stated that Rule 4(a) is “both mandatory

and jurisdictional.” J.A. 184. It acknowledged recent

decisions of this Court “distinguish[ing] between rules

that govern subject-matter jurisdiction and those that

are ‘inflexible claim-processing’ rules.” J.A. 181 n.1 (cit-

ing Eberhart v. United States, 546 U.S. 12 (2005) (per

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

But it concluded that the Court’s decisions to treat the

rules in those cases as not implicating subject-matter

jurisdiction were not controlling, for two reasons. First,

while the timeliness issues in Eberhart and Kontrick

had not been raised by the parties, here the respondent

had objected that the appeal was untimely and therefore

had “never forfeited his right to strict adherence to

Rule 4.” J.A. 182 n.1. Second, while Eberhart and

Koutrick involved deadlines set only by rule, the time

limit in Rule 4(a)(6) was set by Congress. See 28 U.S.C.

5

2107(c)(2) (“[T}he district court may * * * reopen the

time for appeal for a period of 14 days.”).

The court of appeals then addressed “a line of Su-

preme Court cases employing an equitable interpreta-

tion of appeals time limits.” J.A. 185 (citing Harris

Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371

U.S. 215 (1962) (per curiam)). The court held that those

cases are relevant “only where a party has performed an

act which, if properly done, would postpone the deadline

for filing his appeal and has received specific assurance

by a judicial officer that this act has been properly

done.” J.A. 188 (quoting Osterneck v. Ernst &

Whinney, 489 U.S. 169, 179 (1989)). In the court’s view,

this was not such a case. First, petitioner “did not at-

tempt to postpone a deadline for filing his appeal”; in-

stead, he sought “a reopening of the appeal period so

that he might file his untimely notice of appeal.” /bid.

Second, it was the district court, not a party, that per-

formed the relevant act “and purported to extend the

filing date beyond what was permitted by the Rule.”

Ibid. Third, the court observed that “petitioner re-

eeived no assurances from the district court that his

notice of appeal was timely.” /bid.

Finally, the court explained that the earlier motions-

panel order was not conclusive under the law-of-the-

ease doctrine. J.A. 190. That order was “almost en-

tirely devoid of any language even suggesting a decision

of this court that jurisdiction for this appeal should be

sustained.” J.A. 191. While it “[q]uizically” stated that

petitioner could appeal the district court’s February 10,

2004 order, there would have been no reason for him to

do so, since “its outcome was favorable to him.” J.A.

192. The court concluded that that portion of the motion

panel’s order “was surplusage * * * and, therefore, it

6

cannot be construed as a decision of this court.” /bid.

For this reason, the law-of-the-case doctrine posed no

barrier to dismissing the appeal.

SUMMARY OF ARGUMENT

The court of appeals correctly determined that peti-

tioner’s failure to file a notice of appeal within the time

specified in Federal Rule of Appellate Procedure 4(a)

deprived the court of jurisdiction. The time limits for

notices of appeal in civil cases—including those for re-

opening the filing period under Rule 4(a)(6)—have been

specified by Congress, see 28 U.S.C. 2107, and this

Court has repeatedly held that statutory time limits on

the initiation of appeals are jurisdictional.

A statute regulating the timing of an appeal identi-

fies the point at which the lower court’s jurisdiction

ends and the appellate court’s jurisdiction begins. Ac-

cordingly, courts have long treated such statutes as ju-

risdictional. For example, when Congress created the

courts of appeals in 1891, the time limit Congress im-

posed for filing appeals was immediately recognized to

be jurisdictional. In light of this history, when Congress

enacts a statute, such as Section 2107, that imposes

deadlines on appeals, the statute should be presumed to

be jurisdictional.

This Court’s decisions in Kontrick v. Ryan, 540 U.S.

443 (2004), and Eberhart v. United States, 546 U.S. 12

(2005) (per curiam), are not to the contrary. While

those cases held that two procedural rules governing

timing were not jurisdictional, the rules at issue differed

in two crucial respects from Rule 4(a)(6). First, they

were prescribed by this Court under the Rules Enabling

Act, 28 U.S.C. 2072, rather than being set forth in an act

of Congress. That is a distinction that this Court has

7

also recognized to be significant in its treatment of the

time limits governing petitions for certiorari. While the

Court has, on occasion, waived the non-statutory limit

applicable to petitions in criminal cases, it has treated

the statutory limit in civil cases as jurisdictional and

strictly enforced it. Second, the rules in Kontrick and

Eberhart governed the processing of a case by one

court, not the timing of the transition from one court to

a higher court. Transitional rules can be more readily

characterized as jurisdictional because they define a

class of cases that can be brought before a particular

court.

Even if Section 2107 and Rule 4(a)(6) are not juris-

dictional, they still create a mandatory procedural rule

that must be enforced when properly invoked. Here,

the court of appeals correctly determined that respon-

dent had objected to the untimeliness of petitioner’s

notice of appeal by raising the issue in its brief. Accord-

ingly, this is not a case in which the jurisdictional label

is necessary to rescue an argument from forfeiture.

Whether construed as a jurisdictional rule or a truly

mandatory and inflexible rule, the result in this case

should be the same.

The time limits in Rule 4(a)(6) are not subject to eq-

uitable tolling. Rule 4(a)(1) creates rigid time limits

that this Court has held to be “mandatory.” Browder v.

Director, Dep’t of Corr., 434 U.S. 257, 264 (1978). The

drafters of the rule recognized that there might be cases

in which strict enforcement of those limits could be ineq-

uitable, so they provided for carefully defined excep-

tions, of which Rule 4(a)(6) is one. There is no basis for

the creation of an additional exception.

The “unique circumstances” decisions of Harris

Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371

8

U.S. 215, 217 (1962) (per curiam), and Thompson v. INS,

375 U.S. 384 (1964) (per curiam), do not support peti-

tioner’s claim of entitlement to tolling. To the extent

that those decisions survive Browder, the Court has

made clear that they apply only in the narrow category

of cases in which “a party has performed an act which,

if properly done, would postpone the deadline for filing

his appeal and has received specific assurance by a judi-

cial officer that this act has been properly done.”

Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989).

This is not such a case. Petitioner sought a reopening of

the time to file a notice of appeal; under Rule 4(a)(6),;-

such a reopening is limited to 14 days. The district

court purported to give petitioner 17 days in which to

file, but there was no act petitioner could have per-

formed that would properly have given him 17 days.

For the same reason, even if equitable tolling were

available, it would not benefit petitioner, since it was

unreasonable for him to rely on an order of the district

court that plainly contradicted the clear text of the rule

that petitioner himself had cited and quoted in seeking

relief.

ARGUMENT

THE COURT OF APPEALS CORRECTLY DISMISSED

THIS CASE BECAUSE PETITIONER’S NOTICE OF AP-

PEAL WAS UNTIMELY

A. The Filing Of A Timely Notice Of Appeal In A Civil Case

Is A Jurisdictional Requirement

This Court has repeatedly held that “the taking of an

appeal within the prescribed time is mandatory and ju-

risdictional.” United States v. Robinson, 361 U.S. 220,

229 (1960): accord Hohn v. United States, 524 U.S. 236,

9

247 (1998); Torres v. Oakland Scavenger Co., 487 U.S.

312, 314-315 (1988); Budinich v. Beckton Dickinson &

Co., 486 U.S. 196, 203 (1988); Browder v. Director, Dept

of Corr., 434 U.S. 257, 264 (1978); see also Fed. R. App.

P. 3 advisory committee’s note (1967); Becker v..Mont-

gomery, 532 U.S. 757, 765 (2001) (describing Federal

Rules of Appellate Procedure 3 and 4 as “linked juris-

dictional provisions”).” Adhering to those holdings, the

uniform practice of the courts of appeals has been to

dismiss untimely appeals for lack of jurisdiction.

In civil cases, the time limits for filing a notice of

appeal—and the limits on reopening the filing time un-

der Federal Rule of Appellate Procedure 4(a)(6)—are

prescribed by statute. See 28 U.S.C. 2107. This Court

should reaffirm the settled understanding that those

statutory limits are jurisdictional.’

* These cases include both civil and criminal cases, and this Court’s

subsequent decisions in Kontrick and Eberhart cast some doubt on the

accuracy of this statement in the context of non-statutory deadlines that

govern criminal appeals. See note 4, infra. With regard to cases like

this one where the relevant time limit is prescribed by statute, however,

the quoted statement remains accurate.

* Because the issue is jurisdictional, courts of appeals routinely

consider the timeliness of appeals swa sponte. See, e.g., Gochis v.

Allstate Ins. Co., 16 F.3d 12, 14 n. 6 (st Cir. 1994); United States ex rel.

McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001), cert.

denied, 535 U.S. 929 (2002); Smith v. Evans, 853 F.2d 155, 157-158 (3d

Cir. 1988); Maksymchuk v. Frank, 987 F.2d 1072, 1075 (4th Cir. 1993);

Wilkens v. Johnson, 238 F.3d 328, 330 (5th Cir.), cert. denied, 533 U.S.

956 (2001); Terket v. Lund, 623 F.2d 29, 32 (7th Cir. 1980); Arnold v.

Wood, 238 F.3d 992, 994-995 (8th Cir.), cert. denied, 534 U.S. 975 (2001);

Rodgers v. Watt, 722 F.2d 456, 457 (9th Cir. 1983) (en bane); Alva v.

Teen Help, 469 F.3d 946, 948 (10th Cir. 2006); Jackson v. Crosby, 437

F.3d 1290, 1292 (11th Cir.), cert. denied, 127 S. Ct. 240 (2006).

10

1. Historically, deadlines set by Congress for notices of

appeal have heen regarded as jurisdictional

Statutory time limits governing the transfer of a case

from one tribunal to another—whether by appeal, by

petition for review, or by certioriari—have traditionally

been considered to be jurisdictional. They should con-

tinue to be so regarded unless Congress has provided

otherwise.

A statute governing the timing of an appeal is juris-

dictional because it identifies the point at which the

subject-matter jurisdiction of the lower court ends and

that of the appellate court begins. It therefore defines

the class of cases that the appellate tribunal is compe-

tent to hear. Cf. Kontrick v. Ryan, 540 U.S. 443, 455

(2004). As this Court has recognized, “|tlhe filing of a

notice of appeal is an event of jurisdictional signifi-

cance” because “it confers jurisdiction on the court of

appeals and divests the district court of its control over

those aspects of the case involved in the appeal.” Griggs

v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)

(per curiam).

For that reason, courts have long treated statutes

imposing time limits on the initiation of appeals as juris-

dictional. For example, when Congress created circuit

courts of appeals and gave them jurisdiction to review

certain judgments of the district and circuit courts, see

Circuit Court of Appeals (Evarts) Act, ch. 517, § 6, 26

Stat. 828 (1891), it imposed a six-month time limit on

such appeals, see id. § 11, 26 Stat. 829. That limit was

immediately recognized to be jurisdictional. See, e.g.,

United States v. Baxter, 51 F. 624 (8th Cir. 1892);

Stevens v. Clark, 62 F. 321 (7th Cir. 1894); Connecticut

Fire Ins. Co. v. Oldendorff, 73 F. 88 (9th Cir. 1896);

11

Green v. City of Lynn, 87 F. 839 (1st Cir. 1898). Like-

wise, before the creation of the circuit courts of appeals,

this Court had regarded statutory limitations on the

timing of appeals as limitations on its own jurisdiction.

See Scarborough v. Pargoud, 108 U.S. 567, 568 (1883)

(“(T]he writ of error in this case was not brought within

the time limited by law, and we have consequently no

jurisdiction.”); United States v. Curry, 47 U.S. (6 How.)

106, 113 (1848) (“[A]s this appeal has not been prose-

cuted in the manner directed, within the time limited by

the acts of Congress, it must be dismissed for want of

jurisdiction.”).

Congress is presumed to be aware of the background

legal principles against which it legislates. See

Cannon v. University of Chicago, 441 U.S. 677, 696-698

(1979); ef. Astoria Fed. Sav. & Loan Ass'n v. Solimino,

501 U.S. 104, 108 (1991). When it enacts a statute im-

posing a deadline on the initiation of an appeal, it should

be presumed to intend that the deadline will be con-

strued as jurisdictional. Of course, Congress can spec-

ify that a particular deadline is not jurisdictional. When

it has not so specified, however, the deadline should be

interpreted as a limitation on the court’s appellate juris-

diction.

2. Recent decisions treating certain deadlines as

“claim-processing rules” do not apply to Rule 4(a)

Petitioner relies (Pet. Br. 11-12) on recent decisions

of this Court cautioning that there is “a critical differ-

ence between a rule governing subject-matter jurisdic-

tion and an inflexible claim-processing rule.” Kontrick,

540 U.S. at 456; see Eberhart v. United States, 546 U.S.

12, 13 (2005) (per curiam) (quoting Kontrick, 540 U.S. at

456). As the Court has observed, “[j]Jurisdiction * * * is

12

a word of many, too many, meanings.” Steel Co. v. Citi-

zens for a Better Env't, 523 U.S. 83, 90 (1998) (quoting

United States v. Vanness, 85 F.3d 661, 662 n.2 (D.C. Cir.

1996)). “Clarity would be facilitated,” the Court has

said, if the word “jurisdictional” were used “not for

claim-processing rules, but only for prescriptions delin-

eating the classes of cases (subject-matter jurisdiction)

and the persons (personal jurisdiction) falling within a

court’s adjudicatory authority.” Kontrick, 540 U.S. at

455.

Petitioner’s reliance on the decisions in Kontrick and

Eberhart is misplaced. Those cases in no way under-

mine the jurisdictional nature of statutes governing the

initiation of appeals. Such statutes impose jurisdic-

tional limits worthy of the name.

Kontrick involved Federal Rule of Bankruptcy Pro-

cedure 4004(a), which provides that an objection to a

debtor’s discharge “shall be filed no later than 60 days

after the first date set for the meeting of creditors.” A

creditor filed a timely objection, but he subsequently

amended his filing (outside the time limit) to add a new

objection. See 540 U.S. at 448-449. The debtor re-

sponded on the merits without noting the untimeliness

of the new objection; only later did he raise the issue,

arguing that the timing rule was “jurisdictional” and

therefore a claim of untimeliness could not be forfeited.

See id. at 450-451. This Court rejected that argument,

holding that because Rule 4004 concededly did not affect

the bankruptcy court’s subject-matter jurisdiction, see

id. at 454, it was merely an “inflexible claim-processing

rule” that could “be forfeited if the party asserting the

rule waits too long to raise the point,” id. at 456.

Eberhart involved Federal Rule of Criminal! Proce-

dure 33, which allows district courts to grant new trials

13

but requires that “[aJny motion for a new trial * * *

must be filed within 7 days after the verdict or finding

of guilty.” Fed. R. Crim. P. 33(b)(2). Eberhart filed an

untimely new-trial motion, and the government re-

sponded on the merits without addressing the issue of

timing. See 546 U.S. at 13-14. This Court held that the

government had forfeited its objection to the untimeli-

ness of the motion. See id. at 19. In so holding, it con-

cluded that Rule 33 is not jurisdictional: “It is implausi-

ble that the Rules considered in Kontrick can be

nonjurisdictional claim-processing rules, while virtually

identical provisions of the Rules of Criminal Procedure

can deprive federal courts of subject-matter jurisdic-

tion.” /d. at 16.

The decisions in Kontrick and Eberhart turned on

two key features of the time limits at issue. First, those

limits were set out in rules adopted by this Court under

the Rules Enabling Act, 28 U.S.C. 2072, rather than in

a statute enacted by Congress. Second, they regulated

the conduct of proceedings within a court, rather than

the transfer of proceedings from one court to another.

a. Both Kontrick and Eberhart involved

non-statutory rules. While Eberhart did not discuss this

feature of the rules explicitly (but did emphasize the

similarity of the rules in that case to those at issue in

Kontrick, see 546 U.S. at 16), this fact was central to the

Yourt’s analysis in Kontrick. The Kontrick Court began

its discussion of jurisdiction by emphasizing that “[o}nly

Congress may determine a lower federal court’s sub-

ject-matter jurisdiction.” 540 U.S. at 452; see U.S.

Const. Art. III, § 1. The Court noted that “[clertain

statutory provisions governing bankruptcy courts con-

tain built-in time constraints,” and it distinguished such

provisions from “the time constraints applicable to ob-

14

jections to discharge,” which were “contained in Bank-

ruptcy Rules prescribed by this Court.” 540 U.S. at 453.

Rules prescribed by the Court, it explained, “do not cre-

ate or withdraw federal jurisdiction.” /bid. (quoting

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,

370 (1978)); see Sibbach v. Wilson & Co., 312 U.S. 1, 10

(1941).

The distinction between time limits prescribed by

statute and those prescribed only by rule is also re-

flected in this Court’s approach to its certiorari jurisdic-

tion. Supreme Court Rule 13 provides that a petition

for a writ of certiorari must be filed within 90 days of

the entry of the judgment sought to be reviewed, unless

a Justice grants an extension (which may not exceed 60

days). See Sup. Ct. R. 13.1, 13.5. On its face, the rule

applies to all cases, whether civil or criminal. But for

civil cases, the time limits are also set out in a statute.

See 28 U.S.C. 2101(e).

This Court has treated the non-statutory criminal

time limit very differently from the statutory civil time

limit. In criminal cases, the Court has held that the

time limit may be waived: “The procedural rules

adopted by this Court for the orderly transaction of its

business are not jurisdictional and can be relaxed by the

Court in the exercise of its discretion when the ends of

justice so require.” Schacht v. United States, 398 U.S.

58, 64 (1970). In civil cases, on the other hand, the

Court has repeatedly held the limit to be jurisdictional,

see, ¢.g., FEC v. NRA Political Victory Fund, 513 U.S.

88, 90 (1994); Department of Banking v. Pink, 317 U.S.

264, 268 (1942), and Supreme Court Rule 13.2 cites Sec-

tion 2101(c) in directing the clerk not to file any petition

“that is jurisdictionally out of time.” (emphasis added).

The Court has refused to accept untimely petitions even

15

in cases presenting extraordinary extenuating circum-

stances. See, e.g., Deal v. Cincinnati Bd. of Educ., 402

U.S. 962 (1971) (petition lost by airline); Teague v. Re-

gional Comm ’r of Customs, 394 U.S. 977 (1969) (petition

delayed by severe snowstorm); see also Northwest Air-

lines, Inc. v. Spirit Airlines, Tne., 1278. Ct. 340 (2006)

(No. 06M7) (denying a motion to direct the clerk to file

an untimely petition for a writ of certiorari).

b. A second feature of the rules at issue in Kontrick

and Eberhart is that they involved the processing of

claims by one court, not the transfer of a case from one

court to a higher court. When prescribed by statute, the

latter type of deadline may more readily be character-

ized as a jurisdictional rule than the rules at issue in

Kontrick and Eberhart, since the deadline delineates a

category of cases that can be brought before a court. As

Judge Posner has observed, “[t/he emergent distinction,

so far as classification of deadlines as jurisdictional or

not jurisdictional is concerned, is between those dead-

lines that govern the transition from one court (or other

tribunal) to another, which are jurisdictional, and other

deadlines, which are not.” Joshi v. Ashcroft, 389 F.3d

732, 734 (7th Cir. 2004).

Analogously, this Court has held that the time limit

on filing a petition for review of a deportation order—a

petition that transfers a case from the Board of Immi-

gration Appeals to the court of appeals—is jurisdic-

tional. See Stone v. NS, 514 U.S. 386, 406 (1995) (hold-

ing that “the Court of Appeals lacked jurisdiction to re-

view” a deportation order because the petition for re-

view was untimely). And in other cases governed by the

Administrative Orders Review Act of 1950 (Hobbs Act),

the courts of appeals have uniformly held that the 60-

day time limit on petitions for review is jurisdictional

16

and may not be waived even by consent of the parties.

See 28 U.S.C. 2344; Cellular Telecomms. & Internet

Ass'n vy. FCC, 330 F.3d 502, 508 (D.C. Cir. 2003); Florilli

Corp. v. Pena, 118 F.3d 1212, 1214 (8th Cir. 1997).

3. The deadlines in Rule 4(a) are jurisdictional

Applying these principles, the time limits in Rule

4(a)—including the reopening provision of Rule

4(a)(6)—should be regarded as jurisdictional. Critically,

the time limits in Rule 4(a) are prescribed by statute.

And Rule 4(a) governs a step that must be taken to

bring a case from the district court to the court of ap-

peals, rather than a step in the processing of a case by

one court.’

The basic time limit for appeals in civil cases is set

by 28 U.S.C. 2107(a), which states that “no 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 unless notice of appeal is filed, within thirty days

after the entry of such judgment, order or decree.”

Subsection (¢c)(2), in turn, provides that “the district

court may * * * reopen the time for appeal for a period

* Criminal appeals are different. Because no statute governs the

timing of a defendant’s notice of appeal in criminal cases, the United

States has argued that the time limits in Federal Rule of Appellate

Procedure 4(b) are not jurisdictional. See Gov't Br. at 14-21, United

States v. Leijano-Cruz, 473 F.3d 571 (5th Cir. 2006) (No. 05-50280).

Nevertheless, while the difference between the statutory deadline for

civil appeals and the rule-based deadline for criminal appeals may be

relevant in cases in which an objection is not timely raised, Rule 4(b) is

a rigid, inflexible claim-processing rule that must be strictly enforced

when properly invoked. See Leijano-Cruz, 473 F.3d at 574.

* Subsection (b) provides for a 60-day limit in cases where “the

United States or an officer or agency thereof is a party.” 28 U.S.C.

2107(b); see Fed. R. App. P. 4(a(1)(B).

17

of 14 days from the date of entry of the order reopening

the time for appeal,” if certain conditions—i.e., those

identified in Rule 4(a)(6)—are satisfied.

It is true that the time limit for notices of appeal ap-

pears in a separate statutory section from the general

grant of jurisdiction to courts of appeals. See 28 U.S.C.

1291, 2107. But this Court has observed—identifying

Section 2107 as an example—that “some time limits are

jurisdictional even though expressed in a separate stat-

utory section from jurisdictional grants.” Barnhart v.

Peabody Coal Co., 537 U.S. 149, 160 n.6 (2003). Signifi-

cantly, the Court in Kontrick offered Section 2107 as an

example of a congressional determination of “a lower

federal court’s subject-matter jurisdiction.” 540 U.S. at

452, 453 n.8; ef. Houston v. Lack, 487 U.S. 266, 281

(1988) (Sealia, J., dissenting) (“The bar erected by §2107

in civil cases is jurisdictional.”).

Because compliance with Rule 4(a) is jurisdictional,

the court of appeals correctly determined that it lacked

jurisdiction over petitioner's untimely appeal. The dis-

trict court’s error, though unfortunate, could not confer

jurisdiction where it did not exist.”

B. Even If Federal Rule Of Appellate Procedure 4 Is Not

Jurisdictional, It ls A Mandatory Rule That Must Be

Enforced When Properly Asserted

Even if Rule 4(a)(6) is not jurisdictional, the judg-

ment of the court of appeals should be affirmed on the

" The one court of appeals, other than the court below, that has

squarely confronted the question whether Rule 4(a) is jurisdictional in

light of Aowtrick and Eberhart has concluded, in accord with the

decision below, that “Injeither Eherhart nor Auntrick affects the

jurisdictional nature of the timely filing of [a] civil appeal.” Alva v. Teen

Help, 469 F 3d 946, 952-953 (10th Cir. 2006).

18

ground that the rule is mandatory and must be enforced

when it is invoked by a party. The non-jurisdictional

status of the rules in Kontrick and Eberhart was critical

because the timeliness objection had been forfeited, and

only a jurisdictional objection would survive. Here, by

contrast, respondent properly objected to the untimeli-

ness of petitioner’s notice of appeal. Even if Rule

4(a)(6) is not strictly jurisdictional, it is clearly the type

of mandatory and inflexible rule that must be strictly

enforced when a timely objection is raised. Rule 4(a)(6)

contains no equitable exception that would excuse an

untimely filing in the circumstances presented here.

Nor may petitioner circumvent the time limits of Rule

4(a)(6) by asking the district court to enter a second

order reopening the time for filing a notice of appeal.

1. Respondent properly objected to the untimeliness of

petitioner's notice of appeal

Kontrick and Eberhart make clear that even

non-jurisdictional timing rules “assure relief to a party

properly raising them.” Eberhart, 546 U.S. at 19; see

Kontrick, 540 U.S. at 456 (a “claim-processing rule” can

be forfeited if not raised but may also be “unalterable on

a party’s application”). Here, the court of appeals cor-

rectly determined that respondent had properly raised

the issue of petitioner’s untimely notice of appeal by

addressing it in its brief. See J.A. 181 n.1; Resp. C.A.

Br. 2-3 (noting that the “district court was only permit-

ted to reopen the appeal period for a period of fourteen

(14) days,” and that its order had “erroneously” allowed

additional time); id. at 4 (“This Court lacks jurisdiction

to hear an appeal from any judgment denying |peti-

tioner’s] claims on the merits.”).

19

Petitioner suggests (Pet. Br. 11-12) that respondent

should have objected sooner. But respondent had no

basis to object to petitioner’s motion to reopen, which

did not seek more than the 14 days permitted by the

rule. J.A. 148. Nor did it have occasion to object when

the district court entered an order granting petitioner

17 days to file. An objection at that point would have

been premature, since there was no way to know

whether petitioner would actually take more than 14

days. In any event, the burden was not on respondent

to be attentive to petitioner’s notice-of-appeal deadline.

Some litigants may choose to assist opposing parties in

keeping track of filing deadlines, but there is no re-

quirement that they do so. Petitioner cites no authority

for the proposition that respondent was obliged to seek

reconsideration of the district court’s order. Cf.

Fuesting v. Zimmer, Inc., 448 F.3d 936, 940-941 (7th

Cir. 2006) (post-judgment motion is not required to pre-

serve an issue for appeal), cert. denied, No. 06-685 (Jan.

22, 2007).

Respondent could have filed a motion to dismiss as

soon as the case reached the court of appeals. It had no

duty to do so, however. See United States v. Singletary,

471 F.3d 193, 196 (D.C. Cir. 2006) (“There is no provi-

sion in the * * * Federal Rules of Appellate Procedure

iat requires a party to address the untimeliness of an

appeal by filing a motion to dismiss.”). Instead, raising

the issue in its brief, its first appellate filing, was an

appropriate way to preserve its rights.

20

2. The time limit set out in Federal Rule of Appellate

Procedure 4(a)(6) is not subject to equitable excep-

tions

Petitioner argues (Pet. Br. 14-19) that the time limit

for filing a notice of appeal is subject to equitable toll-

ing, and that tolling is appropriate in the “unique cir-

cumstances” of this case. But simply because a rule is

non-jurisdictional, it does not follow that it is subject to

equitable tolling. Here, the structure of the rules sug-

gests that equitable tolling is not available. And even if

tolling were available, it would not be warranted by the

facts of this case.

a. Petitioner is correct that a time limit may be

phrased in seemingly categorical terms but still be sub-

ject to equitable tolling. Thus, this Court has recog-

nized the settled “understanding that federal statutes of

limitations are generally subject to equitable principles

of tolling.” Rotella v. Wood, 528 U.S. 549, 560 (2000);

see Hallstrom v. Tillamook County, 493 U.S. 20, 27

(1989) (“The running of such statutes is ti iditionally

subject to equitable tolling.”). Tolling does not apply,

however, when it would be inconsistent with the text or

structure of the statute. See United States v.

Brockamp, 519 U.S. 347, 350-352 (1997). For example,

tolling is inappropriate when a statute already provides

for equitable exceptions. See l/nited States v. Beggerly,

524 U.S. 38, 48-49 (1998).

The text and structure of the Rules of Appellate Pro-

cedure suggest that it would be inappropriate to recog-

nize an equitable exception to the time limit in Rule

4(a)(6). The drafters of the rules—and of Section

2107— were aware that there might be circumstances in

which strict application of the time limits could be ineq-

21

uitable. That is why Rule 26(b) allows the court, for

“good cause,” to “extend the time prescribed by these

rules.” But Rule 26(b) contains an important exception:

“(T]he court may not extend the time to file * * * a no-

tice of appeal (except as authorized in Rule 4).” Rule 4,

in turn, contains two specific ways in which the district

court may extend the time: by 30 days on a showing of

“excusable neglect or good cause” under Rule

4(a)(5)(A)(ii), or by 14 days under Rule 4(a)(6). Since

these provisions are themselves exceptions to the rigid

time limits of Rule 4(a)(1), designed to eliminate inequi-

ties, there is no warrant for the creation of an additional

exception. Cf. Beggerly, 524 U.S. at 48-49.’

In sum, Federal Rule of Appellate Procedure 4(a) is

drafted in such emphatic” terms as to negate the “pre-

sumption” that equitable tolling is available to remedy

“unfairness in individual cases” by extending the filing

* Petitioner argues (Pet. Br. 22) that the district court has authority

to extend the notice-of-appeal deadline beyond the limits set out in Rule

4. He relies on Federal Rule of Appellate Procedure i(a)(2), which

states that when a “motion or other document” must be filed in the

district court, “the procedure must comply with the practice of the

district court,” and on Federal Rule of Civil Procedure 6(b), which

allows the district court to extend various time limits. Petitioner's

interpretation of these rules is incorrect. Appellate Rule 1(a)(2) simply

means that filings in the district court must be submitted “in the form

and manner prescribed by” the rules governing “the form and presen-

tation of motions.” Fed. R. App. P. 1 advisory committee’s note (1979);

see Becker, 532 U.S. at 763. Petitioner cites no authority—and we are

aware of none—suggesting that Rule 1(a)2) displaces the explicit,

carefully tailored limitations of Rules 4(a) and 26(b), thereby giving the

district court unlimited authority to enlarge the time for filing a notice

of appeal. Nor does Rule 6(b), which applies to deadlines set by the

civil rules or a court order, give authority to a district court to override

express deadlines in the appellate rules, particularly rules that reflect

statutory deadlines.

22

deadline. Brockamp, 519 U.S. at 350, 353. The rule is

“mandatory,” Browder, 434 U.S. at 264, “rigid,”

Eberhart, 546 U.S. at 13, and “inflexible,” Kontrick, 540

U.S. at 456. That character is only reinforced by the

role of the rule in the boundaries—whether or not

strictly jurisdictional—between the trial and appellate

courts. See p. 16, supra. To be sure, the application of

Rule 4(a) may sometimes produce harsh results, but

that is true of any deadline. See United States v. Locke,

471 U.S. 84, 101 (1985).

b. Petitioner errs in relying (Pet. Br. 16) on the

“unique circumstances” decisions of Harris Truck

Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215

(1962) (per curiam), and Thompson v. INS, 375 U.S. 384

(1964) (per curiam). In Harris, the district court

granted an extension of the notice-of-appeal deadline for

“excusable neglect,” under what was then Federal Rule

of Civil Procedure 73(a). See 371 U.S. at 216; see also

Fed. R. App. P. 4(a)(5)(A)(ii).. The court of appeals de-

termined that the standard for excusable neglect had

not been met, and it dismissed the appeal. See 371 U.S.

at 216. This Court reversed, noting “the obvious great

hardship to a party who relies upon the trial judge’s

finding of ‘excusable neglect.” Jd. at 217. In Thomp-

son, the appellant filed an untimely new-trial motion

that the district court erroneously declared to be timely;

he then filed a notice of appeal within 60 days of the de-

nial of his motion but not within 60 days of the original

judgment. See 375 U.S. at 585-386. Relying on Harris,

this Court held that the appeal could proceed because

the appellant “did an act which, if properly done, post-

poned the deadline for the filing of his appeal,” and “the

District Court concluded that the act had been properly

done.” /d. at 387.

23

This Court has not actually applied either Harris or

Thompson since its one-sentence order in Wolfsohn v.

Hankin, 376 U.S. 203 (1964) (per curiam). Significantly,

the Court declined to apply Thompson in Browder, de-

spite facts that were virtually identical: the appellant

filed an untimely new-trial motion; the district court

considered the motion on the merits, and the appellant

delayed filing his notice of appeal while the motion was

pending. See 434 U.S. at 260-263. This Court held that

the court of appeals lacked jurisdiction over the un-

timely appeal. See zd. at 264-265. As several courts of

appeals have recognized, Browder “casts considerable

doubt on the continued viability of the unique circum-

stances doctrine.” Panhorst v. United States, 241 F.3d

367, 371 (4th Cir. 2001); see Parke-Chapley Constr. Co.

v. Cherrington, 865 F.2d 907, 913 n.6 (7th Cir. 1989);

Smith v. Evans, 853 F.2d 155, 160-161 (3d Cir. 1988);

see also Lack, 487 U.S. at 282 (Scalia, J., dissenting)

(“Our later cases * * * effectively repudiate the Harris

Truck Lines approach.”).

The Court need not determine whether the “unique

circumstances” cases have any continuing vitality, be-

cause those cases are inapplicable here. But ef. Lapides

v. Board of Regents of Univ. Sys., 535 U.S. 613, 622-623

(2002) (overruling Ford Motor Co. v. Department of

Treasury, 323 U.S. 459 (1945), as inconsistent with

other Supreme Court decisions despite acknowledging

that Ford could be distinguished). The result in Harris

can be explained—and Harris can be distinguished from

this case—on grounds of practicality and sound judicial

administration. The rules give the district court discre-

tion to determine whether there has been a showing of

“excusable neglect” that would justify an extension. But

an extension issued before the notice-of-appeal deadline

24

has passed would be of little value if parties had to

worry that “an appellate court |might| second-guess the

wisdom of the exercise of discretion under Rule 4.”

Bailey v. Sharp, 782 F.2d 1366, 1369 (7th Cir. 1986)

(Easterbrook, J., concurring). For this reason, it might

make some sense to say, in effect, that the district

court’s determination should be conclusive. That ratio-

nale does not apply here, where the district court lacked

discretion over the length of the period during which it

could reopen the time for filing an appeal. That period

was fixed by statute at 14 days.

Thompson is similarly unhelpful to petitioner. While

a broad reading of Thompson might suggest the general

proposition that parties should not suffer for relying on

the district court’s statements about deadlines, the

Court has made clear that Thompson is not to be read

broadly. Instead, it “applies only where a party has

performed an act which, if properly done, would post-

pone the deadline for filing his appeal and has received

specific assurance by a judicial officer that this act has

been properly done.” Osterneck v. Ernst & Whinney,

489 U.S. 169, 179 (1989). This is not such a case. Peti-

tioner performed an act—filing a motion under Rule

4(a)(6)—which, if properly done, could have given him

no more than 14 days in which to file a notice of appeal.

There was no act petitioner could have performed that

would have given him 17 days. Thompson is therefore

inapplicable here. Moreover, Thompson involved a situ-

ation in which the district court’s ruling primarily af-

fected proceedings in that court, with only an incidental

effect on the deadline for filing an appeal. Here, by con-

trast, the district court’s erroneous ruling addressed a

motion to extend the time for filing an appeal, and so

directly implicated the interest in ensuring strict com-

25

pliance with the rules for transferring cases from one

court to another.

ec. Finally, even if there were an equitable exception

to the 14-day limit of Rule 4(a)(6), it should, at a mini-

mum, require that a party have reasonably relied on the

statements of the district court. Cf. Lawrence v.

Florida, No. 05-8820 (Feb. 20, 2007), slip op. 8 (assum-

ing the availability of equitable tolling under 28 U.S.C.

2254(d), and stating that it would require the defendant

to show “(1) that he has been pursuing his rights dili-

gently, and (2) that some extraordinary circumstance

stood in his way and prevented timely filing”) (citation

and internal quotation marks omitted). Here, peti-

tioner’s reliance was unreasonable.

Petitioner had just filed a motion seeking an exten-

sion under Rule 4(a)(6), and the motion quoted the en-

tire text of the rule. J.A. 148. Petitioner was therefore

well aware that the rule allows the district court to “re-

open the time to file an appeal for a period of 14 days,”

not to reopen the time for a period of 17 days. Fed. R.

App. P. 4(a)(6). It would have been easy for petitioner

to calculate that a 14-day period from the entry of the

district court’s February 10 order would expire on Feb-

ruary 24, not February 27. Petitioner had no basis for

relying on the February 27 date, which was plainly erro-

neous. Certainly, nothing that the district court did

“prevented timely filing.” Lawrence, slip op. 8.

The unreasonableness of petitioner’s conduct is com-

pounded by the fact that the notice of appeal is a one-

sentence document that is easy to prepare. See Fed. R.

App. P. 3(¢). Indeed, the rules provide a simple form for

appellants to follow. See Fed. R. App. P. Form 1. By

the time he filed his Rule 4(a)(6) motion, petitioner ap-

parently had already determined that he wished to ap-

26

peal. See J.A. 148 (explaining that petitioner sought

reopening so “that [he] may timely file a notice of ap-

peal”). Petitioner makes no effort to explain why the 14-

day period provided by the rule was insufficient for him

to prepare and file a notice of appeal.

3. The district court may not enter a second order re-

opening the time to file a notice of appeal

Petitioner suggests (Pet. Br. 21) that the case should

be remanded to the district court with instructions to

enter an order reopening his time for filing an appeal

for 14 days, calculated from the date of that new order.

This is so, he alleges, because that court of appeals mo-

tions panel stated that petitioner’s appeal was “timely

filed as it applies to the [district court’s] February 10,

2004 ruling.” J.A. 161. But as the court of appeals mer-

its panel correctly observed, J.A. 192, that ruling was

not adverse to petitioner, since it granted his motion to

reopen his appeal time. As a result, petitioner could not

appeal the February 10 ruling, see Mathias v.

WorldCom Techs., Inc., 535 U.S. 682, 684 (2002) (per

curiam), and consistent with the reality that the Febru-

ary 10 order was favorable to petitioner, his notice of

appeal did not identify that ruling as an order to be ap-

pealed, see J.A. 153. The February 10 ruling therefore

provides no basis upon which this Court could remand

the case to the district court for the issuance of a new

order reopening petitioner's time for appeal.

The district court no longer has authority to reopen

petitioner’s time for filing a notice of appeal. Rule

4(a)(6) requires that the motion to reopen be filed within

180 days of the entry of judgment. That time has long

since passed. Amicus National Association of Criminal

Defense Lawyers suggests (Amicus Br. 25) that the rule

27

permits the district court to enter a second reopening

order based on petitioner’s original motion. This read-

ing of the rule would allow petitioner to cireumvent Con-

gress’s decision that a court may reopen a party’s ap-

peal time under Rule 4(a)(6) for only 14 days. See 28

U.S.C. 2107. Indeed, under this argument, a court could

extend the time for filing a notice of appeal under Rule

4(a)(6) indefinitely, merely by issuing new orders grant-

ing successive 14-day extensions based on a party’s orig-

inal motion. That would negate a core feature of the

limited relief Congress authorized. It also would defeat

the purpose of requiring that a motion to reopen be filed

within 180 days after entry of the judgment or order

being appealed. See Fed. R. App. P. 4(a)(6)(B). That

limitation is intended to provide an “outer time limit” to

ensure that the relief provided under Rule 4(a)(6) does

not suspend the finality of a judgment or order indefi-

nitely. See Fed. R. App. P. 4 advisory committee’s note

(1991).

* Amicus also relies (Amicus Br. 26) on decisions holding that a

district court may recertify an order for interlocutory appeal under 28

U.S.C. 1292(b) if a party fails to ask the court of appeals to permit such

an appeal within 10 days of the district court’s first certification order.

Those decisions are inapposite. Seetion 1292(b) allows interlocutory

appeal of district court orders at any time during the course of the

litigation, so long as the district court makes the requisite findings.

There is no requirement that the certification order be sought or

entered within a specific period of time after the order sought to be

appealed. See 28 U.S.C. 1292(b); Fed. R. App. P. 5(a)(3). In contrast,

28 U.S.C. 2107(c) and Federal Rule of Appellate Procedure 4(a)(6)

pertain to appeals from final judgments, and their strict time limits

promote important finality interests that are not present in the context

of Section 1292(b).

28

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

MICHAFL R. DREEBEN

Deputy Solicitor General

Eric D. MILLER

Assistant to the Solicitor

General

DOUGLAS N. LETTER

LOWELL V. STURGILL, JR.

Attorneys

FEBRUARY 2007