# Amicus Curiae Brief — Bowles v. Russell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0365%3A8

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 205

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0365%3A8. Public record. Not legal advice.