my name is alexander by lists that start may please the court yes my name is alexander by les and i represent the appellant's brian barnard darrell baker and ronald long if possible i would like to reserve three minutes for a bottle all right but we're we're happy to help in what order are you going to address the jurisdictional issues in terms of the cases well the issues sort of blend over the three cases so i was going to first address the prison mailbox rule applies or could apply to all  finally i was going to address whether or not mr barr and mr long's post judgment motions should be considered timely so that they told their time to appeal  all three of these appellants have some striking similarities your honor all three are pro se prisoner litigants all three did their best to compile the rules and all three are now facing the prospect of being shut out of court for f controlling opinion is there anyway is there any way to distinguish cool without just saying oops our bad it's difficult it did not mention fear early it's also the basis for this distinction that it drew between the case in pool and the case in granite which was also a prior decision where this tort squarely held the the courts to exclude is really no longer good law no because balls didn't actually change anything it just reaffirmed that twenty one of seven was jurisdictional houston the original supreme court case that promulgated the prison mailbox jurisdictional and yet even in the face of jurisdictional statutes they said that the prison mailbox rule would apply well in pool the the kind of delay was it really a prison mailbox kind of issue there was nothing about internal prison operations that was going on in pool he it was he moved in there was is a sort of male de lay that could happen to somebody in prison or out of prison right  ayers i'm not necessarily prison delay here isn't well him in two of the three case it's very definitely that there's prison the way involve because the prisoners were being transferred to prisons and the prisons didn't forward the mail to them in a timely fashion aker was definitely was sent to the prison and then let me just double check my notes in haiti is be different from one thousand nine hundred three actions i mean i don't think so i the similar rules there's no there might not be a life based on the prison but here we do have prison well i'm just asking like if if we did say something like that and it were a credible basis for distinguishing pool then you would be just as happy are your clients the sheets and or the because yes we would be then in a position to to kind of set that to the side in and look at fear reall about it is it's not actually extending the jurisdictional time instead it's defining when that time starts and stops and that is something that is claims processing and and left to the courts to probably going to was about although in houston the the way it was reasoned it was the the word filed right man when delivered to prison officials right ok that's one thing but then that then that kind of fits you can you can say we're still talking about when something's file right well when you say incoming mail that is delayed by prison right then you're getting beyond the rule well unless you construe what you're saying basically defining what entered names for purposes of twenty one to seven and wet weather when the core issues its judgment for a pro se prisoner who alleges that there was present the way the court would be saying that basically the his friends long and baker it's unclear and as we said in our brief mr barr is in a slightly different position and whether or not there was presently in his case it's not clear and for that reason we recommend if the court finds that this is the only reason that it might have jurisdiction over mr barnes appeal it should remand for a fact finding in his case i think mr baker mr wrong it's pretty clear that prison the way was involved here and  fact finding determination is probably not necessary for their cases but there is an allegation that the president may have delayed mr barak's receipt of the order   i'll have to find it for but if there's a letter that he filed with the district court it was sort of construed as a motion where he makes now jason that sounds like it might have been the fault of the pris it also he might have just said and then talking about the mail being slow and in that case it's not the person's fault and that his motion his post definition would be late but if it was the person's fault i think that time should be excluded art well that's a so i think that's a slightly separate issue i think that what we've proposed are independent grounds for relief the prison mailbox rule if it applied to mr barak's case would make his post judgment motion timely it's it's all fours right yes however mr bonner also has a second reason why you might be able to hear his saying his first he had it he filed an earlier notice of appeal and it was dismissed for failure to pay the filing fee well it's unclear why it was dismissed the clerk's warder said that it was dismissed for failure prosecute but it cited two different rules one which talks about paying filing fees and one which talks about how you have to file a brief but that first appeal his notice of appeal was filed while a post judgment motion was pending in the district court and under appellate rule for a for the a notice of  appeal that is filed while a post judge a motion is pending the district court is not effective and becomes effective when the district court rules on the post judgment motion and while that notice of appeal is ineffective this court and the clerk did not have the power to take any action on his nose appeal well but even before it would have been held to be effective later it was a threshold issue it's even a clerk's office to do i think it i think it's it's it's supposed to let it sit there and it's not allowed to take any action on it i e if you think about it he tried to do everything he could to appeal his decision he filed the but then you go and get the statute changed you're right your honor but or get the earlier word changed to later it might help to have assessed actually changed but i don't think it's necessary i  find out what's going on with their case i don't want to be up to sell the way i can sell them help myself what's let's go back to barter for a second does it make a difference when he filed that post isn't that the rules requirement no it's not the case last requirement no that's not the case law is requirement the rule for a for b itself does not have a timeliness requirement in it what they're trying to do is it what for a for b does have is it before he'd be well besides the timeliness word not being in for a for be there are good reasons not to put a timeliness requirement into that rule first it would undermine the purpose of the war which is  when post judge or motion is filed that there's a chance that the rights of the parties should be modified and while that there's a chance of that the circuit court shouldn't start acting on the appeal that's that's been filed because everything could change even if the motion is untimely because if for instance if a district court finds that there was present the way and decides that the motion was actually timely something that might have on its face looked untimely could then be considered by the district court and it might alter the rights of the parties it really would kind of be unworkable in practice the circuit court would know whether or not a post judge a motion is timely or not for purposes of determining whether it can proceed on the notice of appeal will seems like it w you have appealed then your appeal runs from a later date so you've and what you're if you look at if in this actual case what he did was file a timely notice of appeal and then he fought and he also had filed what might be an untime post judgment day the court probably should have gotten rid of that first appeal because by getting rid of it and then holding his post judge motion to be untimely he then has no way of appealing his the original decision  this should be got rid of that first appeal i mean if he doesn't follow the rules to have an appeal why should it hold on to well it's very well you know what you did are they the fees but i don't believe that mr well first of all he wasn't required to file follow the rules other than to file his nose appeal because it was ineffective until the district court decided the post just a motion second he didn't mean to go back on yes because it seems that feels like you're put the rabbit in the hat there if you're if what you're saying is you really don't have to file you don't have to you can file the most out of order notice of appeal in the world and and and have that preserve everything that follows if only you have post judgment motion in the district court including an untimely post as for emotion i mean does not just start to make a hash out of the rules  compliant or perhaps they know they're trying they're trying to do a piece for appeal that's what happened in a seventh circuit case it's possible that this court would have the power to dismiss the appeal as a sanction on the appellant and because this court's it makes sense that it should have sanction ability even if it doesn't have the ability to dismiss is appeal for on the merits so i mean that would be one way around that problem right on so i mean they answer to your question is if he files a proper appeal then yes it's wrong to dismiss a part if it's if the fish an appeal there's nothing in error in bhootnath right now i think that perhaps not but i think that it is within this court's power to reinstate that first appeal and give him the chance to cure a problem different question so it this court has no power to do anything to it that's that's that's what our reading of the state of the rule is and that's our reading of the cases notice and you know it's lying dormant basically in limbo yes indefinitely until the district court issues a ruling on the post judge a motion his nose appeal is dormant or unripe and at that when the district court issues its decision it's sort of springs into life and becomes effective at active and he should have been filing things but i mean if he had been started going ahead and trying to make his appeal effective and filed a brief perhaps then the court would be starting to rule on the merits of his case w letter of november third and what your number one is to september fourth two thousand and eight order a final judgment and i have to answer no and yes when it was  the facts of this case we were more like what we stood on the petard of our complaint but when it happened that's when the decision became final in january six zero nine how do we alternative but to stand on our initial complaint and it was dismissed with prejudice that's how we know the case of a plaintiff but say i stand on my complaint here we were stood on our complain it became final when denied not earlier and dismissed with prejudice yes and the appeal was february to zero nine clearly timely clearly within thirty days now  perhaps i'm wrong saw go to question number two as well if you are it will permit me if the september fourth two thousand and eight order is not a final how does that affect the court's jurisdiction in this case now my ste i'm not so sure it's at the cent in the full was a sense of the word since there was no disagreement with judge jordan's analysis of the real argument issue because the majority said it had not been preserved but on the merits of the real argument issued there was no disagreement but not necessarily in the worst but i submit that here under judge  lawyer this was the intentional relinquishment of a known right there's nothing wrong with the state of new jersey allowing its citizens to a certain appeal one day late they should have that right there's clear waiver there's no forfeiture the law hordes of corporate sure this was an intentional relinquishment of a no right by the state of new jersey and they should be allowed to do it so that if if the appeal from the other line judgement or the re argument or allowed or both the result should be the same since even though there's an abuse of discretion standard on t both claims are claims of error of the wall feel the standard would be the same under either appeal or both peels and so that word conclude my it wasn't it wasn't at issue there was not that it's very strong but it's certainly distinguishable that's right and ultimately in the end i think all three cases can be reconciled but it's a bit messy but i think it can be done  yeah we're all here and you know i think it also ties in if the starting point really is section twenty one of seventh self and the language of the statute and if you look carefully at it it actually guides the way to reconciling all of this stuff including the prison you know box rule in the houston case the basic question what's wrong with houston the mailbox rule itself the court supreme court in that case was looking at the definition of the word  file it was it's when is for for prisoner purposes when is a pleading filed and the court said we will exclude prison to lay in that context and one of prisoners admits outgoing mail to the prison that will we will be filed under the statute here obviously we're looking in the other direction we're looking at outgoing mail but if this were a situation involving file been handed to then you'd say if it's under twenty one of seven because we construe filed i would i would but in this case we're looking at different words in the words entry and i think it's very difficult to come up with any interpretation of the entry of judgment other than the day of the clerk enters the judgment in the docket there's a federal strictly no exceptions no matter what we might think is a reasonable or a fair rule the statute itself says entry entry is under one hundred years of case law and a federal rule defined as when the something other than file entry can mean something then i it's a fair question your honor but that's that's my reading the statute and the rule and the upshot of that is that my view is requires the clock to start ticking at the entry of judgment and when you do that if that's the starting point feel rally kinston remain on the books as allowing an extension of time but not a norm an open ended one in other words in the statute itself put an outer limit on fear rally which is actually the way the court phrased the question in the original issues i was asked to brief does bowles put an outer limit on  ellie and my answer is yes and the outer limit is either thirty days in an ordinary civil case were sixty days in the case in which the government as a party when that statutory deadline has run and neither attorney motion nor notice of appeal has been filed my view of the statute is the court has to enforce that statute by its terms that's bowles what was the timing in fear ali well the timing of pirelli was if i'm not mistaken it's a good question and i don't want ninety three suit against prison not not at all and it's actually one of the things i think the court can really clarify in its opinion in these matters is that there is an approach for that prisoner and there is a remedy for that prisoner and the remedy is an existing rule the existing federal rules rule for a five rule for a six which in substance allow a party any party not just a prisoner that does not receive notice of judgment for legitimate reasons to come to the court and say look i didn't get notice judgment i there's a good cause for me needing more time to appeal file a motion for it's well it has to be done within the deadlines prescribed by the rule once ever a case where the facts called for some flexibility in the interpretation of twenty one of seven it was bowles the court did not decide the court said five four but that's that's not how we're going to turn the statute it's going to be done rigorously recall if you will you remedy nothing whether there might be a stand alone one thousand nine hundred three claim in that instance but that that's a different that's a different idea so you get the images but you stay in jail i mean that's a pretty bad tradeoff for somebody who's got he's petition that they can't proceed on appeal right yeah know and i'll make two points on it your honor one is and this is just something for the court to weigh i'm not sure there's cases out there about it but the extent to which it's reasonable to expect that a prisoner or any other party for that matter with a pending litigation on a docket you haven't heard anything for six months you don't know what's going on what is your duty in that situation to at least check in on the docket now appellants have made a point in their papers which is well taken that we don't necessarily want to encourage prisoners or other litigants to be calling the clerk's office all the time to check up on the status of their case but having heard nothing for one hundred eighty days is there some measure of responsibility to call the court and check in on your  as if of a fairly a not uncommon situation of prison transfer in this situation led to someone not getting notice within one hundred eighty days and it seems equitable that there should be a way around that i just don't know how to get there given bowles and the in the language doesn't talk about you know how we interpret something it talks about limited authority really talks about the authority of the courts to do something anything other than what's what's in the statute so you or your view is that this is not claims processing this is clearly jurisdictional so falls within polls well in are you saying it's wrong in  jurisdictional yeah i think that's right so whether you and i think that's right so i mean there's some play and for a for the the question is whether the claims processing label applies and really claims processing that's certainly what judge jordan said in a separate opinion in the case i think i think the majority opinion leans strongly that way while dropping a footnote to say we're not going to decide and i think the court should just be mindful that  jurisdictional treatment of that rule does raise some other questions that sooner or later are going to have to get resolved what's the extent to which parties can consent their way around tolling motion deadlines in the district court i think that's a question that will need to get answered that that could be you know there's a the tenth circuit's decision michel particularly this talks about adopting a practice something you could be handled administratively right you know these are claims processing but we're not going to exercise or discretion to hear and when it's untimely absent extraordinary circumstances  and so we've got a we've got an administrative mechanism in place to boot these when they're not timely let's you come up with some really good reason why we should i mean does not i think that approach has much to commend that and ultimately thinking through that a little bit i don't presume to know how the court is structuring administrative processes like that but thinking about something like that is what ultimately persuaded me that you know it can be workable to have rules for via a claim processing rule not call it strictly a jurisdictional rule that's consistent with lazard most of the other circuits circuits except for the ninth have gone that way and and so alternately i reversed course for some of those reasons i think the mitchell approach is sensible i think if this court were to have an administrative procedure like that that screened appeals that appear to be untimely and essential he said you know give us a good reason that that seems like a sensible way of handling these while still having an appropriate measure of flexibility in cases where there really is good cause again i think it's a narrow band of cases because if this court is clear that the ordinary approach in these circumstances should not be done to file an untimely tolling motion is to file a motion under rule for a fiver for a six to reopen the appeal period and proceed that way that's what the rules say is the right approach i think this court would should consider at least making that clear for parties going forward well those are to talked about the reason for the consistency in the uniformity and the intent of the two thousand and nine amendments i think i mean our court has said th whatever we do there ought to be some uniformity and consistency that that point isn't absolutely correct and there's no way to look at the history of the rule making in this area and i you know i would if the court is interested at all in that direct you the miller the right treatise on rule four which gets way into this and this is can very compelling that the history about the history of the rules and the need for uniformity and i think the court was art i was correct about that i see my light is yellow really quickly i wanted to address the title can issue and start with a quick apology for not myself noticing that the order of dismissal and cycle pam did include thirty days allowing psychopaths to file a motion to amend its complaint that i should have caught at the beginning it clearly rendered that a non final appeal to the order making in my view this whole tolling motion go away in that case i think the appeal is timely unless unless the court has any questions about that i think it's pretty straightforward and cycle and that's because you agree with what we've heard from excusing histories i'm not sure i agree with all of what i heard from mr hazen but i think i think that the the the original order of dismissal was not final and the cases are pretty clear that the order such as that are non final and so i am having then litigated as the district court expected them to  the motions to reconsider in the motions to amend their being extensive practice beyond that from which a timely if appeal is filed i think the whole tolling motion issue goes away and with that said i two final points on this position before my time runs i think the first this just a basic point which the court appreciates which is that in these cases the district court actually entered an order on the post judgment motions so this court's going to have jurisdiction to review those orders whatever is the status of the underlying judgments which is important at least in the long case the d n a case because the post judgment order got deep into the not at least so i thought that's a point that i think that's point worth considering in terms of at least getting to the facts of some of these cases the last point i want to fly with the court's indulgence among r is a question that was that was first apparent to me in reading the last set of briefing from the appellants and that is the extent to which the district court has the authority to construe untimely post whatever reason i had a good cause for filing an untimely motion for reconsideration does the district court in that situation have the authority should it even take a motion like that particular in a pro se person or case and construe it as in fact a request to reopen the time in which to appeal that's that's a that's an important question i think going forward especially if the court were to write an opinion saying look for a five for a six is the right of course any further questions thank you very much thank you controlling it's on all fours and it's conclusive in that in this and that burghardt i would also want to address the issue of the first appeal and the filing the failure to pay the filing  that filing fee is just a precondition to the appeal it has nothing to do with a decision on the merits and therefore whether or not there was a it would be preclusion of deciding an appeal on the merits the  fee is insufficient is not this is not what's precluded and that that's a precondition to the filing of the appeal and it's not satisfied in this case but even even if we had the rule if even if the rule did apply with with regard to time we filed fifty nine emotions actually suspending the jurisdiction of the court of appeals to address these issues it has to be a timely  motion could not tell the time the running time for an appeal under the rule for a it seems to me that that answers that question if it's untimely it cannot it cannot told the running time be at least squared with polls i'm not sure that in fact it can fully be squared with bowles and one of the i think all says that for civil cases the language of twenty one of seven really must control with regard to all of its limitations and one of the things that the supreme court said in the bowles decision was at the end of the day it was also asked to apply as a sort of similar equitable ruling supposed it was asked if it could apply the sort of unique circumstances rule and the court responded this court is has no authority to create equitable exceptions to jurisdictional requirements and i believe that we run into a due process problem we run into a problem if if the rules that stark where somebody like that again go back to the hypothetical  the prison official that says fine we put this in the six love box and and then you're done this interpret in the rule that way then runs right up against the constitution because can it really be the case that a prisoner's opportunity to pursue the great writ depends on the kindness of people in the prison mailroom you know i think  several people suggested one answer to that is that this person then has a due process claim that he might be able to bring against the against the prison officials but under under bowls the  in civil cases that the rule is that you you have some mechanisms already in twenty one of the seven for for alleviating the problem of not r cases there is an obligation on the part of the litigant to shoot keep track of of the docket and even prisoners would have the responsibility polls but polls is inconsistent we go balls i can see the supreme court saying wait a minute you're hating us does go bye bye civil rules but you know hey b s isn't just you know unique circumstance havey us is and the rule that event judge alito came up with was in that context and still said that really the the grana rule cannot be applied in a civil context even though it was a issue as basically a right a right raising the same problems that would happen when you have a prisoner seeking redress through the courts under under the civil  houston if i recall was a question about was going in the other direction and it was suggesting that the thigh laying that when the prisoner hands a document to the government is that's if and there was no other way that he can get that document to court except through the with the representative of the government that that's sufficient for filing i think that that's a slightly different context and therefore is not completely and bowles has given us how the answer to what is the proper procedure in in civil cases and it says that those limitations are ju case he said in the present case not only is plaintiff relying upon mail service this mail service is affected on him by the federal bureau of prisons b o p employees and this court need not be briefed on the numerous pitfalls in quotes that can become part of th smell process and in fact as happened in the present case plaintiff did not even receive the district court's order within three days for service i think that's enough to send it back down for fact finding if that's the only reason mr bonner subpool can be heard  second as far as his first appeal goes nothing was deficient on the face of his notice of appeal and no one has suggested that for that reason i don't think the clerk had the power to take any action  for a are timely filed motion well if you think we're not necessary it's not that they're not necessarily timely and i also as i mentioned earlier i think it would be unworkable to import  time in this requirement into for a for b because it would be too difficult for the circuit court to tell without a district court ruling on the timeliness issue whether or not the post just in motion is timely i also think that's true i suppose whether fear only is still good law i think it is as i said earlier it bears didn't actually change anything when feel rally was written and when grania and houston were written the courts were dealing with a backdrop where every time limit was considered jurisdictional why don't you respond to the to make his argument that it's one thing to talk about five lng it's another thing to talk about the entry of judgment and that that really doesn't lend itself to any judicial massaging to get to what many feel like a more equitable result just is what it is congress folk and so is every word well i think this i think this court's decision if you're only for close is that analysis first of all because it was dealing with what it consider to be a jurisdictional time limit and it had no problem with massaging and calling entry something other than entry in the docket at secular even if then and other parts of the rule for i guess what i'm asking i'm trying to understand what it is you're to you're you're saying that there's twenty one of seven doesn't a strict reading of twenty one o seven wouldn't allow for forty four to exist yes he's certain yes and no one i don't think has suggested that or would think that makes sense under the statute i think that the courts have the ability to control the time when the time starts and stops and that's what the court did in fear rally if that's true then how do you explain bowles if courts have the power to control in th think that that is a recognized exception to the time limits and an in a glossy on the statute and with balls there was no gloss that the supreme court was dealing with it was just the district court allowing the parties to file a late filing  but isn't the real answer that twenty one of seven can vary the times that are set forth in twenty one of seven but to the stand for a for merely says from which time that time will run it's something that's not in compas within twenty one well well different from that and that's and that's why that i agree it is different i think it gets outside the jurisdictional status nature of the statute but for the same reason the prison mailbox  the court should tell the district court to construe some of these post other motions as actually motions to reopen the time to appeal we did actually raise that and in our reply brief in response to that his argument on page fifteen and sixteen of our reply brief we asked the court to remand to determine whether or not to pursue it to the district court to determine whether or not these should be construed as forty five or forty six motions and finally i think judge jordan raised a very good point about whether due process is implicated here  e that's a constitutional standard that that's not just statutory and due process requires notice and an opportunity to be here or to and if you allow prisoners to be shut out of court for something that because they never received notice i think it would violate their due process what about the the response which is all litigants have a burden to pay attention to what's going on and even when you're in prison if there are if months go by with no action you're you've been here a personal responsibility to start looking into it ask questions pushing on find out what's going on you can't sit back and say no one told me you've got to require i think i think that the danger is for the two things first some prisoners have no ability to contact the court even whether through writing or not and they might be in solitary they might have some other sort of  restrictions imposed on them that they have no ability to actually contact the court and that's something that the court i think should recognize second even with that would be a problem regardless of whether we were talking about the procedural  niceties we're trying to address today right i mean like the soon that everything worked fine in the prison delivered notice and all that stuff it was if your assertion is they just can't contact me that's that's a completely separate problem right well not entirely these guys are in prison so even if they have the ability to write that's the only way they have to contact the court and as judge greenaway recognized we don't impose that requirement on any other litigant to contact the court and doing so to proceed prisoners would invite them to contact the court on a daily basis because they could always be be wondering when something is issued we do impose i mean it wouldn't be precisely the same would we be would we be any more a prisoners would encourage them to write constantly asking about the status of their case if only so that they don't miss an order being issued and then miss their deadline would matter i mean if you you think they have to read every day would it be would it be enough if they were you know they waited three months or four months and then contact the court somehow and said i haven't heard anything and i'm concerned about miss deadlines let me know what's going on you know when you say this is an unusual burden to put on them you know the rules that it isn't it isn't it the same burden that everybody's got who's working in the system i think that they are particularly at a disadvantage when it comes to contacting the court and that's what houston recognizes they are at the mercy of the jailers and the prison mail system and they do not have the freedom that most people have to contact the court and i think if you asked the cop to write every three or four months you'd be first they could they could miss the thirty or sixty day window to file the notice of appeal if it's every three or four months and secondly it could come up against one hundred eighty day time limit as well for which amaka says there's no nothing can come  beyond that when you're writing every three or four months it might take the time to get there what happens if the mail doesn't get to court and comes back i mean we're not bulan i'm just saying it was just i mean it doesn't mean hell it's going to get there more than  baker's case and i think you should recognize that he mailed a notice of change of address to the court he mailed a letter stating that he had gotten his hands on the docket asking what's i see something on the docket what is this please send it to me and that was you know of more than a year before he ever actually got the the order and it sounds like he never actually was even served with an official copy of the order so i mean mr baker was trying to to find out what was going on with this case thank you more layers of the onion so the issue as i understand it is that appellant's argument is that the strict interpretation of of the statute that i've put forward would somehow call into question the timely filing rule for a while the roof all the toll in motion really they say that if you are force it strictly you can't have tolling motions that's over writing the statute i think there are two responses to that one is just to understand the history of rule practice which was and always has been that post judgment tolling motions would told the time to appeal now the statute is not as clear as we would like on that point but that is in fact the history against which it was an act point is that congress has explicitly said making as authorized the separate statutory provision but congress has passed another provision saying that the court is authorized to promulgated rules that define the finale of judgments and i think that the telling motion rules are easily encompassed by that explicit grant of authority such that any towing motion room making is is not at all inconsistent with the with the statutory deadlines to appeal how do you respond to the to the argument that we just heard from surrealist that to the extent that you could say oh the statute was written against the understanding that there are circumstances about when you start start and stop the clock that are not dictated strictly by statute but by interpretation from the court and that applies to the mailbox rule to just the way it would with with the forty four motions i think i think of from understanding with the quotes getting ready correctly though the problem with that is taking that extra step to say in effect that the court