# Thompson v. Immigration and Naturalization Service/Dissent Clark

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
375 U.S. 384
Thompson v. Immigration and Naturalization Service
Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
I agree with the Court of Appeals that it did not have jurisdiction to hear this appeal on the merits.
Petitioner's motions 'to amend certain findings of fact pursuant to Rule 52 F.R.C.P. and for a new trial pursuant to Rule 59 F.R.C.P.' were not timely filed, as they were not served until the 12th day after entry of judgment and not filed until the 14th day. The rules are phrased in mandatory terms:
'Rule 52(b): 'Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings * * *.'
'Rule 59(b): 'A motion for a new trial shall be served not later than 10 days after the entry of the judgment.'
Rule 59(e): 'A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.' (Emphasis supplied.)
Rule 6(b) specifically says that the court 'may not extend the time for taking any action under rules * * * 52(b), 59(b), (d) and (e) * * * and 73(a) * * * except to the extent and under the conditions stated in them.' These requirements are mandatory and cannot be enlarged by the court or by the parties. None of these rules provides for any extension of time except 73(a), which authorizes, 'upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment,' an extension of the time for appeal 'not exceeding 30 days from the expiration of the original time herein prescribed.' Petitioner has made no claim under this provision of Rule 73(a) in the District Court, the Court of Appeals or in the 'questions presented' here. The running of the time for appeal is terminated by the filing of a timely motion under Rule 52 or Rule 59. But here petitioner contends that the trial court's statement that the motions were 'in ample time,' considered together with the Government's acquiescence, was sufficient to effect such termination. Whether the trial judge's statement was spontaneous or made by agreement is not shown by the record and is of no legal significance. The rules specifically say that motions to amend the findings and for new trial must be made within 10 days and that this time shall not be extended.
In the light of these facts I cannot say that this case 'fits squarely within the letter and spirit' of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). As I read the facts in the two cases, Harris Lines does not touch the problem here. In that case the District Court, after denying a timely motion for a new trial, granted an application under Rule 73(a) based on 'excusable neglect' to enlarge the time for appeal. The trial court had jurisdiction and 'properly entertained the motion * * * before the initial 30 days allowed for docketing the appeal had elapsed.' 371 U.S. at 216, 83 S.Ct. at 285, 9 L.Ed.2d 261. We said that a finding of 'excusable neglect' by a motions judge was entitled to 'great deference by the reviewing court' in the light of the 'obvious great hardship to a party who relies upon the trial judge's finding.' 371 U.S. at 217, 83 S.Ct. at 285, 9 L.Ed.2d 261. Finally, we said that the showing of 'excusable neglect' was of 'unique circumstances sufficient that the Court of ppeals ought not to have disturbed the motion judge's ruling.' Ibid. That is a far cry from this case where the trial court had no jurisdiction to pass upon the untimely motions to amend the findings and for a new trial. To escape this, the Court either reads into the rules, contrary to the specific prohibition of 6(b), authorization for the District Court to enlarge the time for filing such motions, or treats the motions as being within the provisions of Rule 73(a), despite failure to allege any 'excusable neglect.' By thus authorizing the trial judge to entertain the motions it thereby extends the time for appeal. And, as I have said, the error of the trial judge in entertaining the motions could not be validated by the acquiescence of the Government. It is elementary that the parties cannot confer jurisdiction on the court.
We have said that untimely motions to amend the findings and for new trial are of no legal significance whatsoever because the limiting language of Rule 6(b) is 'mandatory and jurisdictional and (can)not be extended regardless of excuse.' United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960). In my view we should abide by these rules or amend them, rather than emasculate them.
Rules of procedure are a necessary part of an orderly system of justice. Their efficacy, however, depends upon the willingness of the courts to enforce them according to their terms. Changes in rules whose inflexibility has turned out to work hardship should be effected by the process of amendment, not by ad hoc relaxations by this Court in particular cases. Such dispensations in the long run actually produce mischievous results, undermining the certainty of the rules and causing confusion among the lower courts and the bar. Cf. Lieberman v. Gulf Oil Corp., 2 Cir., 315 F.2d 403, 406, 407.
Accordingly, I would have denied certiorari in the present case, but now that it is here I would affirm the judgment of the Court of Appeals.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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