United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted April 7, 2020 Decided July 10, 2020

No. 19-7083

CHARLES STRANGE, ON BEHALF OF MICHAEL STRANGE, THEIR 

SON AND STEPSON, ET AL.,

APPELLANTS

v.

ISLAMIC REPUBLIC OF IRAN, INTEREST SECTION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00435)

No. 19-8004

IN RE: CHARLES STRANGE, ON BEHALF OF MICHAEL STRANGE,

THEIR SON AND STEPSON, ET AL.,

PETITIONERS

Petition for Permission to Appeal Under 28 U.S.C. § 1292(b)

from an Interlocutory Order of the United States District

Court for the District of Columbia

(No. 1:14-cv-00435)
2

Larry Klayman was on the briefs for 

petitioners/appellants.

Erica Hashimoto, Director, and Marcella Coburn, 

Supervising Attorney, Georgetown University Law Center, 

both appointed by the court, were on the brief as amicus curiae 

in support of the District Court’s June 4, 2019 order. With them 

on the brief were Emily Clarke and John Donnelly, Student 

Counsel.

Before: HENDERSON, GRIFFITH and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: 

Interlocutory review is an exception to the final judgment rule 

and our jurisdiction of such appeals is therefore limited. Before 

an aggrieved litigant can invoke our interlocutory jurisdiction 

under 28 U.S.C. § 1292(b), the district court must certify its 

order for appeal. We may then, in our discretion, permit an 

appeal only if the litigant files a petition “within ten days after 

the entry of the [certified] order.” Id. We have long recognized 

that section 1292(b)’s filing period is jurisdictional and thus the 

failure to file timely the required petition precludes us from

exercising jurisdiction of the appeal.

Here, the district court certified an order for interlocutory 

appeal but no petition was filed by section 1292(b)’s deadline. 

The district court thereafter granted a motion to recertify its 

order and the litigants filed both a petition for permission to 

appeal and a notice of appeal within ten days after 

recertification. We conclude in this consolidated opinion that a 

district court cannot restart the jurisdictional clock in this 
3

manner. Accordingly, and for the reasons that follow, we

dismiss the petition and related appeal for lack of jurisdiction.1

I

On August 6, 2011, a helicopter carrying thirty United 

States servicemembers was shot down by insurgents in 

Afghanistan, leaving no survivors. Navy Petty Officers First 

Class John Douangdara and Michael Strange and Army Staff 

Sergeant Patrick Hamburger were among the Americans killed.

Nearly three years later, their parents and stepparents 

(collectively, Parents) brought this suit against those 

individuals, governments and state entities (collectively, 

Foreign Defendants) the Parents hold responsible. Specifically,

the Parents allege that the Foreign Defendants engaged in 

racketeering, see 18 U.S.C. §§ 1961 et seq., violated multiple

federal anti-terrorism statutes, see id. §§ 2333, 2339, 2339A, 

and committed numerous common law torts in connection with 

the helicopter attack.

Most of the Foreign Defendants are no longer parties to 

this action. The district court concluded that, under the Foreign 

Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq., 

it lacked subject-matter jurisdiction of the claims against the 

Islamic Republic of Afghanistan and three of its state entities, 

see Strange v. Islamic Republic of Iran, 320 F. Supp. 3d 92, 99 

(D.D.C. 2018), and the Parents voluntarily dismissed Ayatollah 

Sayyid Ali Hoseyni Khamenei, former President of Iran 

Mahmoud Ahmadinejad and the Army of the Guardians of the 

Islamic Revolution, see Suppl. App. (S.A.) 61. Four 

defendants—the Islamic Republic of Iran, Al Qaeda, the 

1

 These cases were considered on the record from the United 

States District Court for the District of Columbia and on the briefs 

filed by the parties and amicus curiae. See FED. R. APP. P. 34(a)(2); 

D.C. CIR. R. 34(j).
4

Taliban, and former President of Afghanistan Hamid Karzai2—

now remain. Iran was properly served pursuant to the FSIA, 

see 28 U.S.C. § 1608(a)(4) (authorizing service “through 

diplomatic channels”), and Al Qaeda and the Taliban were 

served by publication, see S.A. 63–64. The Parents’ efforts to 

serve Karzai, however, have been less fruitful.

First, they argued that Karzai was served under

section 1608(b)(3) of the FSIA by his name being included in

documentation delivered to Afghanistan and its state entities. 

But the suit against Karzai is not governed by the FSIA. 

Although “it may be the case that some actions against an 

official in his official capacity should be treated as actions 

against the foreign state itself,” Samantar v. Yousuf, 560 U.S. 

305, 325 (2010), the Parents allege that Karzai “was acting in 

his unofficial capacity,” S.A. 54, and, as a result, they cannot 

“rely on the [FSIA]’s service of process and jurisdictional 

provisions,” Samantar, 560 U.S. at 324 n.20. Accordingly, the 

district court held that Karzai must be served pursuant to 

Federal Rule of Civil Procedure 4(f), which governs service of 

process on individuals in foreign countries. S.A. 55.

Second, Karzai was purportedly served by publication

pursuant to Rule 4(f)(3), which authorizes service “by other 

means not prohibited by international agreement, as the court 

orders.” FED. R. CIV. P. 4(f)(3) (emphasis added). Despite 

permitting the Parents to serve Al Qaeda and the Taliban by 

publication, however, the district court “never ordered such 

service on . . . Karzai.” S.A. 55. Moreover, it found the

published notice insufficient to inform Karzai that a lawsuit 

2

 The Parents allege that Karzai “sold the coordinates of [their] 

sons’ location and other classified information,” Parents’ Br. 5, based 

on his reported contacts with the Taliban and a history of Afghan 

soldiers firing on coalition forces, see id. at 6.
5

had been filed against him in his individual capacity. See S.A. 

56–57.

The Parents next attempted to serve Karzai under Rule 

4(f)(2), which provides, in relevant part, that “unless prohibited 

by the foreign country’s law,” service may be effected “using 

any form of mail that the clerk addresses and sends to the 

individual and that requires a signed receipt.” FED. R. CIV. P.

4(f)(2)(C)(ii). After the United States Embassy in Afghanistan 

indicated that documents for Karzai should be delivered to the 

Presidential Palace in Kabul, the Parents contacted the 

Embassy of Afghanistan in Washington, D.C. for further 

guidance. Because many government officials work in the 

Palace, the Afghan Embassy, attempting to discern the 

package’s intended recipient, asked the Parents to identify the 

specific individual or office they desired to reach. The Parents 

declined to answer, however, and were thus provided with the 

names and telephone numbers of three individuals available for 

contact, including a “Mr. Kakar.”

3 The summons and 

complaint were subsequently delivered to the Palace and 

signed for by Kakar. The district court ruled that service had 

still not been perfected, considering the summons and 

complaint were not delivered to Karzai personally and the 

Parents presented no evidence that Kakar was authorized to 

accept service on Karzai’s behalf. S.A. 64–65.

Finally, the Parents requested to serve Karzai by Twitter.

The district court exercised its discretion and denied their 

original motion for leave because, among other things, the 

Parents had made no attempt to obtain the information 

necessary to determine whether service by mail had in fact been 

effective. S.A. 78; cf. Freedom Watch, Inc. v. Org. of the 

3

 “Mr. Kakar” is apparently Muhammad Suleman Kakar, then 

First Deputy National Security Advisor of Afghanistan. See Parents’ 

Br. 23.
6

Petroleum Exporting Countries, 766 F.3d 74, 81 (D.C. Cir. 

2014) (“[W]hether to allow alternative methods of serving 

process under Rule 4(f)(3) is committed to the sound discretion 

of the district court.” (citation and internal quotation marks 

omitted)). But the court pledged to reconsider the motion if 

Kakar was not authorized to accept service and the Parents 

could not otherwise ascertain Karzai’s agent. Ex post attempts 

to resolve the open questions around Kakar fell flat, however, 

as neither the Afghan Embassy nor Kakar responded to the 

Parents’ inquiries. 

Then, on December 21, 2018, without the district court’s 

approval, the Parents’ counsel attempted to contact Karzai on 

Twitter. The body of the tweet simply stated: “Strange v. 

Islamic Republic of Iran, et al. @KarzaiH.” App. 62. By 

“mentioning” Karzai’s username, the Parents ensured that his 

Twitter account would receive a notification of the message. 

The tweet also contained a partial screenshot of the summons 

but the picture was cropped in such a way that only one 

sentence—“A lawsuit has been filed against you”—was fully 

visible. App. 62. Only by clicking on the image, which was in 

fact an embedded link to the Parents’ counsel’s website, could 

Karzai view the summons and complaint in their entirety. 

Nearly five months later, the Parents renewed their request 

to serve Karzai by Twitter. The district court denied the motion 

without prejudice. S.A. 101. Ultimately, “the [c]ourt [wa]s not 

convinced that Twitter would be reasonably likely to give . . . 

Karzai notice of this lawsuit.” S.A. 97–98 (citing Mullane v. 

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) 

(service must be “reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their 

objections”)). To prove that “Karzai has a strong presence on 

Twitter and tweets almost daily to communicate with his 
7

audience,” Parents’ Br. 21, the Parents catalogued his Twitter 

activity over a ten-day period in December 2018. But they 

failed to reconcile their premise—that Karzai saw the 

December 21 tweet and received notice of the pending 

lawsuit—with the fact that Karzai, like many public figures, 

does not manage his own Twitter account. Although Karzai’s 

account makes plain this distinction, advising that “[p]ersonal 

tweets are signed – HK,” Hamid Karzai (@KarzaiH), TWITTER, 

www.twitter.com/KarzaiH (last visited July 1, 2020), the 

Parents never identified which, if any, of the tweets they 

offered as evidence were sent by Karzai personally. The district 

court conducted its own review and concluded that Karzai had

a “limited personal presence on Twitter,” having discovered 

only one of the twenty-two tweets sent from his account in May 

2019 was signed “HK.” S.A. 98.

The district court noted additional shortcomings of the 

proposed means of service. First, as a public figure, Karzai was

often mentioned by other Twitter users and was therefore 

unlikely to notice a single tweet sent from an unfamiliar 

account.4 The substance of the tweet was also “somewhat 

confusing.” S.A. 99. The partial screenshot made clear that the 

summons was addressed to Karzai at the Afghan Embassy in 

Washington, D.C. but, as Karzai had no presence at the 

embassy, it was not obvious that the notice was directed to him 

in a personal capacity. And although this confusion could have 

been remedied by following the link to the Parents’ counsel’s 

website, basic principles of cybersecurity advise that no one, 

let alone a world leader, should click links sent by strangers.

See S.A. 99. Finally, the court distinguished the Parents’ 

claimed legal support. In the nonbinding cases they cited, 

“social media platforms were used, if at all, only as a 

4

 In May 2019, for example, Karzai’s account received 

approximately 165 tweets within a seven-day period. S.A. 98.
8

supplement to service by email or other means,” whereas the 

Parents proposed to serve Karzai “by Twitter alone.” S.A. 99. 

The district court therefore declined, at that time, to allow the 

Parents to serve Karzai by Twitter. S.A. 96.

The Parents moved to amend the court’s order by

certifying the Twitter-service issue for interlocutory appeal 

pursuant to 28 U.S.C. § 1292(b). Notwithstanding “the general 

rule that appellate review must await final judgment,” 

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 716 (2019), if 

a district court determines that one of its orders “involves a 

controlling question of law as to which there is substantial 

ground for difference of opinion and that an immediate appeal 

from the order may materially advance the ultimate termination 

of the litigation,” and it says so in the order, the adversely 

affected litigant can seek immediate review, 28 U.S.C. 

§ 1292(b). Access to an appellate tribunal is not guaranteed, 

however. Rather, the court of appeals with jurisdiction of a 

direct appeal may, “in its discretion, permit an appeal . . . if 

application is made to it within ten days after the entry of the 

order.” Id. Federal Rule of Appellate Procedure 5, which 

implements section 1292(b), clarifies that, if the certification is 

not included in the original order and is thereafter added by 

amendment, “the time to petition runs from entry of the 

amended order.” FED. R. APP. P. 5(a)(3).

The district court found the statutory preconditions

satisfied and granted the Parents’ motion on July 12, 2019. See 

S.A. 111. The Parents thus had until July 22, 2019—ten days 

after the court amended its Twitter order to add the requested 

certification—to petition for review. They failed to do so by the 

deadline. Instead, on July 23, the Parents moved for an 

extension of time to petition and, in the alternative, 

recertification of the order. Although the district court 

recognized that it could not extend section 1292(b)’s 
9

jurisdictional filing deadline, it nevertheless granted 

recertification on July 30, 2019, after concluding that the 

“original justifications for granting a certification of appeal

remain valid.” S.A. 121.

Six days later, on August 5, the Parents filed a notice of 

appeal in district court. The notice was transmitted to this Court 

on August 9, the same day the Parents petitioned for permission 

to appeal. Two cases were thus opened: No. 19-7083 involves 

the notice of appeal and No. 19-8004 covers the petition for 

permission to appeal. Notwithstanding this docketing 

treatment, the two cases are one and the same. Because the 

Parents invoke only our interlocutory jurisdiction, we have 

jurisdiction of the appeal in No. 19-7083 only if we grant the 

petition for permission to appeal in No. 19-8004. In other 

words, our jurisdiction of the related cases turns on whether 

recertification of the district court’s order cured the Parents’

failure to timely file a petition within ten days of the initial

certification order. The Court thus referred the petition in 

No. 19-8004 to the same merits panel as the appeal in No. 19-

7083, appointed counsel as amicus curiae in support of the 

district court’s Twitter order and directed the parties to address 

the jurisdictional question in their briefs.5

II

The Parents neither challenge the jurisdictional nature of

section 1292(b)’s filing period nor argue that they applied to 

this Court “within ten days after the entry of” the district court’s 

original certification order. 28 U.S.C. § 1292(b). Ordinarily, 

“[f]ailure to file the petition for permission to appeal within the 

[ten]-day period . . . deprives us of jurisdiction over the 

appeal.” Carr Park, Inc. v. Tesfaye, 229 F.3d 1192, 1194 (D.C. 

5

 We thank amicus for the outstanding briefing and have found 

it to be of great assistance.
10

Cir. 2000) (per curiam). This straightforward conclusion is 

complicated, however, by the fact that the district court 

recertified its order for interlocutory appeal and the Parents 

thereafter filed a petition within ten days. We have not 

previously addressed whether a district court can “restart[] the 

§ 1292(b) clock” in this manner. See Kennedy v. Bowser, 843 

F.3d 529, 538 (D.C. Cir. 2016) (Griffith, J., concurring)

(citation omitted). The Parents contend that “[t]he 

jurisdictional nature of [section 1292(b)’s] time limitation . . . 

is circumvented when a district court recertifies its prior 

certification order,” Parents’ Br. 12, and that we therefore have

jurisdiction of their interlocutory appeal. We disagree.

The Parents primarily rely on Baldwin County Welcome 

Center v. Brown, 466 U.S. 147 (1984) (per curiam), but, simply 

put, “Baldwin County is a puzzling case,” Groves v. United 

States, 941 F.3d 315, 322 n.3 (7th Cir. 2019). In Baldwin 

County, the district court had recertified its order nine months 

after section 1292(b)’s filing period had expired, thereby

“permitting what would otherwise be a time-barred 

interlocutory appeal.” 466 U.S. at 162 (Stevens, J., dissenting). 

Yet this jurisdictional question was addressed only by Justice 

Stevens in his dissenting opinion, joined by Justices Brennan 

and Marshall. Despite recognizing that the “[ten]-day time 

limit . . . is mandatory and jurisdictional,” id. at 161, Justice 

Stevens concluded with little explanation “that interlocutory 

appeals in these circumstances should be permitted,” id. at 

162.6 This was so, he continued, “notwithstanding the fact that 

this view essentially renders the [ten]-day time limitation, if not 

6

 Justice Stevens was “persuaded by the view, supported by the 

commentators,” that section 1292(b)’s filing deadline begins anew 

after recertification. 466 U.S. at 162 (Stevens, J., dissenting). But he 

nowhere details why his view is correct.
11

a nullity, essentially within the discretion of a district court to 

extend at will.” Id. 

Contrary to the Parents’ suggestion, “a dissenting Supreme 

Court opinion is not binding precedent” because it “does not 

tell us how a majority of the Court would decide” the question. 

Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th 

Cir. 1996). And in Baldwin County, “[t]he majority didn’t 

address the question at all, so it is unclear whether it viewed 

the procedural posture differently or thought that interlocutory 

jurisdiction was proper.” Groves, 941 F.3d at 322 n.3. Indeed, 

not only is the per curiam opinion silent on the effect of 

recertification, it does not even mention section 1292(b). 

Inasmuch as the majority responded to other arguments raised 

by Justice Stevens, see, e.g., 466 U.S. at 150 n.4 (majority 

opinion), the complete lack of discussion on this point is 

unusual, especially given the “conflict in the Circuits on this 

jurisdictional question,” id. at 161 (Stevens, J., dissenting).

The Parents nevertheless maintain that Baldwin County 

“implicitly addressed recertification by taking the appeal.” 

Parents’ Reply Br. 3. Assuming arguendo that the Parents are 

correct, the majority’s silence does not transform the dissent’s 

conclusion into a binding holding. That is, “[e]ven if the 

majority approved recertification sub silentio, . . . its 

assumption would be a ‘drive-by jurisdictional ruling[]’ 

lacking precedential effect.” Groves, 941 F.3d at 322 n.3 

(alteration in original) (quoting Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 91 (1998)). In Steel Co., the Supreme Court 

disclaimed reliance on the supposed jurisdictional ruling in 

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 

Inc., 484 U.S. 49 (1987), because, among other things, the 

Gwaltney Court was apparently unaware “that anything turned 

upon whether the existence of” the cause of action at issue “was 

technically jurisdictional” and, instead, its “jurisdictional 
12

character . . . was assumed without discussion by the Court,” 

Steel Co., 523 U.S. at 91. Likewise, in Baldwin County, section 

1292(b)’s “jurisdictional limitation . . . simply escape[d] the 

attention of the Court.” 466 U.S. at 152–53 (Stevens, J., 

dissenting); see also Marisol A. ex rel. Forbes v. Giuliani, 104 

F.3d 524, 527 (2d Cir. 1996) (Baldwin County did not 

“squarely address[] . . . whether a circuit court has jurisdiction 

to consider a § 1292(b) petition in this situation”).

In sum, we are not bound by a jurisdictional ruling that the 

High Court majority declined to hint at, even in passing. See In 

re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008) (“It is 

a well-established rule that ‘cases in which jurisdiction is 

assumed sub silentio are not binding authority for the 

proposition that jurisdiction exists.’” (quoting John Doe, Inc. 

v. DEA, 484 F.3d 561, 569 n.5 (D.C. Cir. 2007))). Thus, 

although the Parents cite Baldwin County “as implicit support 

for the district court’s power to recertify an order, the issue 

bears further exploration in view of the majority’s silence.” 

Marisol A., 104 F.3d at 527.

The Parents correctly note that most circuits to consider 

the issue have held that recertification resets the jurisdictional 

clock. See Groves, 941 F.3d at 321–22 (compiling cases). This 

“precedent, while not binding, is ‘persuasive authority that 

should not be completely ignored.’” Schnitzer v. Harvey, 389 

F.3d 200, 203 (D.C. Cir. 2004) (quoting Kreuzer v. Am. Acad. 

of Periodontology, 735 F.2d 1479, 1490 n.17 (D.C. Cir. 1984)). 

Despite reaching the same outcome, these courts approach the 

jurisdictional question in myriad ways. For example, the 

weight afforded Baldwin County varies considerably. Like the 

Parents, the Fourth Circuit views Baldwin County as endorsing 

recertification. See Safety-Kleen, Inc. (Pinewood) v. Wyche, 

274 F.3d 846, 866–67 (4th Cir. 2001). Others are more 

skeptical, see Marisol A., 104 F.3d at 527, and some do not 
13

reference Baldwin County at all, see generally In re Benny, 812 

F.2d 1133 (9th Cir. 1987).

Our sister circuits have also articulated different criteria 

for determining when it is appropriate to accept a recertified 

order for interlocutory appeal. The Fifth Circuit permits the 

district court to “reenter the interlocutory order and thus trigger 

a new ten-day period” if “the previous justification for a 

certification continues to exist.” Aparicio v. Swan Lake, 643 

F.2d 1109, 1112 (5th Cir. 1981). Most, however, employ some 

form of equitable balancing. See, e.g., In re City of Memphis, 

293 F.3d 345, 350 (6th Cir. 2002) (recertification is proper “to 

avoid an injustice to a party caused by the inadvertent acts of 

the district court”); Safety-Kleen, 274 F.3d at 867 (“[T]he 

district court should consider whether the appellant can show 

excusable neglect” and, if so, “whether the appellee can show 

sufficient prejudice to warrant a denial of recertification.”);

Marisol A., 104 F.3d at 528 (appellate court should consider 

“the length of the delay,” “the reasons given for failing to 

timely file,” “and any prejudice to the appellee from the 

delay”); In re Benny, 812 F.2d at 1137 (“[T]he court of appeals 

may exercise jurisdiction over the appeal if it determines that 

jurisdiction . . . would serve judicial efficiency.”).

Although these out-of-circuit cases take divergent paths, 

they have one thing in common—all predate Bowles v. Russell, 

551 U.S. 205 (2007), which “introduced the [Supreme] Court’s 

renewed emphasis on the federal courts’ lack of authority to 

read equitable exceptions into fixed statutory deadlines,” 

Groves, 941 F.3d at 321. In Bowles, a criminal defendant failed 

to timely file a notice of appeal and moved to reopen the filing 

period pursuant to Federal Rule of Appellate Procedure 4(a)(6) 

and 28 U.S.C. § 2107(c), both of which, under certain 

conditions, authorize the district court to extend the deadline

for a period of fourteen days. See 551 U.S. at 207. The district 
14

court granted the motion but “inexplicably” provided

seventeen days to file; the defendant thereafter filed his notice 

of appeal outside the fourteen-day statutory period. Id. The 

Supreme Court affirmed that “time limits for filing a notice of 

appeal are jurisdictional in nature” and, accordingly, the 

“untimely notice—even though filed in reliance upon a District 

Court’s order—deprived the Court of Appeals of jurisdiction.”

Id. at 206–07.

Only one circuit court has addressed the recertification 

question post-Bowles. The Seventh Circuit had previously held 

that interlocutory jurisdiction of a recertified order is proper if 

equitable considerations favor an appeal even after the 

statutory deadline has expired. See Nuclear Eng’g Co. v. Scott, 

660 F.2d 241, 246–47 (7th Cir. 1981). In Groves, however, the 

court expressly overruled Nuclear Engineering Co. as 

“inconsistent with the [Supreme] Court’s approach to fixed 

filing deadlines.” 941 F.3d at 322. We find the reasoning in 

Groves persuasive and join the Seventh Circuit in holding that 

a district court may not utilize recertification to extend section 

1292(b)’s ten-day deadline.

To start, we emphasize that “section 1292(b)’s filing 

period is jurisdictional,” as “all of the circuits to address the 

issue have concluded.” Carr Park, 229 F.3d at 1194; see also

Bowles, 551 U.S. at 209 (“[The Supreme] Court has long held 

that the taking of an appeal within the prescribed time is 

‘mandatory and jurisdictional.’” (quoting Griggs v. Provident 

Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam)).7

7

 Bowles’s holding that statutory time limits are jurisdictional 

implicates statutes like 28 U.S.C. § 1292, which “concern[] an appeal 

from one court to another court.” Henderson ex rel. Henderson v. 

Shinseki, 562 U.S. 428, 436 (2011). “The ‘century’s worth of 

precedent and practice in American courts’ on which Bowles relied 

involved appeals of that type” and, thus, the Supreme Court “did not 
15

“Jurisdictional treatment of statutory time limits makes good 

sense. . . . Because Congress decides whether federal courts 

can hear cases at all, it can also determine when, and under 

what conditions, federal courts can hear them.” Bowles, 551 

U.S. at 212–13. 

The Congress expressly delineated the “conditions” under 

which we may accept a petition for permission to appeal. Under 

section 1292(b), the ten-day clock begins to run when the 

district court first certifies its order for interlocutory appeal.

8

And because a “filing deadline prescribed by statute” is 

jurisdictional, if ten days elapse and no petition has been filed, 

“that . . . necessitates dismissal of the appeal.” Hamer v. 

Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017); 

see Groves, 941 F.3d at 324 (“If the application is not made 

within ten days, the order is no longer appealable.”). We are 

without power “to create for ourselves otherwise nonexistent 

jurisdiction, in a fashion that cannot be grounded in the 

statutory text,” Nat’l Black Media Coal. v. FCC, 760 F.2d 

1297, 1299 (D.C. Cir. 1985) (emphasis omitted), and, here, 

“[t]he statute does not contemplate that the order’s 

appealability can be revived by a new certification,” Groves, 

941 F.3d at 324.

Indeed, “no exception to the time for filing is set out in the 

statute,” Carr Park, 229 F.3d at 1194, even though the

Congress plainly knows how to authorize filing extensions and 

has done so elsewhere. A district court may, for example, 

hold categorically that every deadline for seeking judicial review in 

civil litigation is jurisdictional.” Id. (quoting Bowles, 551 U.S. at 209 

n.2).

8

 This is true whether the certification is included in the original 

order or added by amendment. Either way, “the clock does not start 

until the litigant is actually authorized to file a petition.” Groves, 941 

F.3d at 319.
16

extend the time for filing a notice of appeal “upon a showing 

of excusable neglect or good cause.” 28 U.S.C. § 2107(c). Yet 

“no statute gives [it] similar authority to extend the time for 

filing a petition for permission to appeal.” Groves, 941 F.3d at 

324 (emphasis omitted). Likewise, “the plain language of the 

Federal Rules precludes us from enlarging the statutory time 

for filing.” Carr Park, 229 F.3d at 1194; see Groves, 941 F.3d 

at 323 (“If a litigant asked us to toll the clock, there is no 

question that we would have to refuse.”). Federal Rule of 

Appellate Procedure 5 makes clear that “[t]he petition must be 

filed within the time specified by the statute,” FED. R. APP. P.

5(a)(2), “[a]nd Rule 26(b)(1) reinforces that limit by expressly 

prohibiting courts of appeals from extending the time to 

petition for permission to appeal,” Groves, 941 F.3d at 323.9

Simply put, the Congress “d[id] not authorize either district 

courts or the courts of appeals to extend § 1292(b)’s deadline 

for any reason,” Groves, 941 F.3d at 321; see also In re City of 

Memphis, 293 F.3d at 348 (“Neither the district court nor the 

court of appeals can extend the [ten]-day period.”).

Many of our sister circuits nevertheless allow a district 

court to “effectively extend the time for filing a petition . . . by 

recertifying its order.” In re Benny, 812 F.2d at 1136 (emphasis 

added). In accepting otherwise untimely interlocutory appeals, 

these circuits consider various equitable factors, such as the 

length of the delay, see Marisol A., 104 F.3d at 528, excusable 

neglect and unfair prejudice, see Safety-Kleen, Inc., 274 F.3d 

at 867, and judicial efficiency, see In re Benny, 812 F.2d at 

1137. But regardless whether these approaches were correct

9

 The Parents’ reliance on Rule 4(a)(5), which authorizes the 

district court to extend the time to file a notice of appeal in appeals 

as of right, is therefore misplaced. Rule 26(b)(1) plainly states that 

“the court may not extend the time to file . . . a petition for permission 

to appeal.” It is clear, then, that Rule 4 does not apply to a 

discretionary appeal like this one.
17

when first articulated, the Supreme Court made clear in Bowles 

that federal courts “ha[ve] no authority to create equitable 

exceptions to jurisdictional requirements.” 551 U.S. at 214.10

Put differently, a fixed filing period “cannot be enlarged just 

because . . . [a] court in its discretion thinks it should be 

enlarged,” FTC v. Minneapolis-Honeywell Regulator Co., 344 

U.S. 206, 211 (1952), notwithstanding the equitable balance 

tips in favor of accepting a tardy petition, cf. Nat’l Black Media 

Coal., 760 F.2d at 1299 (“[W]e are bound by the terms of our 

jurisdictional grant.”).

The Parents’ remaining arguments are unavailing. First, 

they maintain that the question before us “is not about 

enlarging time, reopening a filing period, . . . or whether a 

district court judge has the authority to extend time to file an 

appeal” but, rather, is about whether recertification “moot[s]”

section 1292(b)’s ten-day deadline. Parents’ Reply Br. 1. 

Granted, the act of recertifying an order—or vacating and 

reentering it—is distinct from expressly providing more time 

than the statute allows, as was the case in Bowles. But courts 

cannot “moot” a jurisdictional requirement any more than they 

can extend or excuse it. If the Parents had moved for an 

extension of time within the ten-day period, the district court 

would have been powerless to extend the deadline or excuse 

compliance on equitable grounds. But the Parents have 

achieved the same result by letting the deadline expire and then 

obtaining a recertified order, rendering section 1292(b)’s 

nondiscretionary time limitation “a nullity” or, at the very least, 

10

 The Supreme Court consequently overruled the “unique 

circumstances” doctrine—an equitable doctrine the Court had

“applied . . . only once in the last half century”—“to the extent [it] 

purport[s] to authorize an exception to a jurisdictional rule.” Bowles, 

551 U.S. at 214. 
18

“within the discretion of a district court.” Baldwin Cty., 466 

U.S. at 162 (Stevens, J., dissenting).

“[W]hen a jurisdictional statute sets a firm deadline,” 

however, “courts have no authority to extend it.” Groves, 941 

F.3d at 323 (citing Bowles, 551 U.S. at 209). Accepting the 

Parents’ position would elevate form over function by 

endorsing “the fiction that recertifying an order isn’t the same 

thing as granting more time.” Id. at 324. In fact, it is evident 

from the Parents’ briefs that the line they draw between a 

recertified order and an order granting more time is illusory. 

They concededly “sought an extension” from the district court, 

Parents’ Br. 15, but persist in arguing that the recertified order 

“did not extend the time . . . to file,” Parents’ Reply Br. 6. Their 

attempt to characterize the order any differently is simply a 

veneer, incapable of obscuring the fact that the recertified order 

plainly extends the filing period beyond ten days. Substance, 

not name or label, is what matters here. Cf. GERTRUDE STEIN, 

Sacred Emily, in GEOGRAPHY AND PLAYS 178, 187 (Univ. of 

Wis. Press 1993) (1922) (“Rose is a rose is a rose is a rose.”).

We therefore decline their invitation to “permit[] district courts 

to do indirectly what they cannot do directly: give litigants 

more time to file a petition in the court of appeals.” Groves, 

941 F.3d at 321; cf. Milbert v. Bison Labs., Inc., 260 F.2d 431, 

435 (3d Cir. 1958) (“[T]he conditions precedent to the granting 

. . . of permission to appeal . . . are to be strictly construed and 

applied.”).

Our conclusion is consistent with the treatment of filing 

periods in analogous contexts. “[T]he mere fact that a judgment 

previously entered has been reentered or revised in an 

immaterial way does not toll the time within which review must 

be sought.” Minneapolis-Honeywell Regulator Co., 344 U.S. at 

211. And for interlocutory appeals under Rule 23(f), the filing 

period “runs from the order granting or denying class 
19

certification” and “[a] later order that does not change the status 

quo will not revive the . . . time limit.” In re DC Water & Sewer 

Auth., 561 F.3d 494, 496 (D.C. Cir. 2009) (quoting Gutierrez 

v. Johnson & Johnson, 523 F.3d 187, 193 (3d Cir. 2008)).11

Section 1292(b) requires the filing of a petition for permission 

to appeal within ten days and a court cannot give litigants more 

time merely by recertifying or reentering its original 

certification order.12

The Parents also point out that they sought recertification 

only one day after the filing period expired. But a prompt 

attempt to rectify the mistake does not negate the fact that 

“timely filing . . . is a jurisdictional requirement.” Bowles, 551 

U.S. at 214. “Deadlines are by nature arbitrary, which can make 

dismissal for failure to comply with them seem particularly 

harsh.” Groves, 941 F.3d at 323. The filing period at issue in 

11

 Although Rule 23(f) is a “nonjurisdictional claim-processing 

rule,” Nutraceutical Corp., 139 S. Ct. at 714, its deadline “may not 

be extended[,] . . . even where good cause for equitable tolling might 

otherwise exist,” id. at 715.

12

 Here, the district court’s recertified order—which simply 

affirmed “that the original justifications for granting a certification 

of appeal remain valid,” S.A. 121—did not “revise[]” its original 

order in a “[]material way,” Minneapolis-Honeywell Regulator Co., 

344 U.S. at 211, or “change the status quo,” In re DC Water & Sewer 

Auth., 561 F.3d at 496. We therefore “do[] not address whether or to 

what extent substantive reconsideration of a previously certified 

order might allow recertification to restart the clock.” Groves, 941 

F.3d at 325 n.6; see Minneapolis-Honeywell Regulator Co., 344 U.S. 

at 211–12 (“Only when the lower court changes matters of substance, 

or resolves a genuine ambiguity, in a judgment previously rendered 

should the period within which an appeal must be taken . . . begin to 

run anew.” (footnotes omitted)); cf. Consarc Corp. v. Iraqi Ministry, 

27 F.3d 695, 700 (D.C. Cir. 1994) (“A later order that revises an 

earlier one only in part preserves the finality of the unrevised 

portions.”).
20

Bowles, for example, was not subject to equitable modification 

even though the district court’s error caused the defendant to 

file a mere two days late. 551 U.S. at 207. Noting the “severe 

consequences” of its approach to jurisdictional limitations, the 

Supreme Court acknowledged that a few months earlier the 

Clerk of Court “refused to accept a petition for certiorari . . . 

because it had been filed one day late” and, as a result, the 

petitioner “was executed . . . without any Member of th[e] 

Court having even seen his petition.” Id. at 212 n.4. If 

jurisdictional boundaries do not yield under the weight of a lifeor-death decision, “no result justifies our intervening where we 

have not been granted the power to do so.” Groves, 941 F.3d at 

323 (citing Steel Co., 523 U.S. at 101–02).

This principle is especially pertinent to an interlocutory 

appeal, which constitutes an exception to “the general rule that 

a party is entitled to a single appeal, to be deferred until final 

judgment has been entered.” Dig. Equip. Corp. v. Desktop Dir., 

Inc., 511 U.S. 863, 868 (1994) (citation omitted). In view of 

“the usual benefits of deferring appeal until litigation 

concludes,” Mohawk Indus. v. Carpenter, 558 U.S. 100, 107 

(2009), the limitations on interlocutory appeals are 

“purposefully unforgiving,” Nutraceutical Corp., 139 S. Ct. at 

716. Strictly policing interlocutory jurisdiction in this manner 

is unlikely to penalize late-filing litigants permanently. 

Whereas “a litigant who loses the opportunity to appeal a final 

judgment forever loses the ability to appeal, . . . a litigant who 

loses the opportunity to file an interlocutory appeal has another 

chance later.” Groves, 941 U.S. at 324; see Consarc Corp., 27 

F.3d at 700 (“[T]he question is simply whether the order will 

be considered then or now.”).

Indeed, our decision does not leave the Parents without 

options. They recognize that “many of the[] issues” raised in 

this appeal could “be reviewed . . . after final judgment,”
21

notwithstanding “it would be much more difficult” if Karzai is 

“dismissed from this case.” Parents’ Br. 12. And the failure to 

perfect service by Twitter does not ensure Karzai’s dismissal. 

The Parents can still “seek leave to serve [Karzai] via 

publication,” S.A. 106, or can resort to another service method 

with the district court’s approval.

“If rigorous rules like the one applied today are thought to 

be inequitable, Congress may authorize courts to promulgate 

rules that excuse compliance with the statutory time limits.” 

Bowles, 551 U.S. at 214. Until then, filing a petition for 

permission to appeal outside section 1292(b)’s ten-day filing 

period is an “error . . . of jurisdictional magnitude,” Bowles, 

551 U.S. at 213, that mandates dismissal, see id. (“[W]hen an 

‘appeal has not been prosecuted in the manner directed, within 

the time limited by the acts of Congress, it must be dismissed 

for want of jurisdiction.’” (quoting United States v. Curry, 47 

U.S. 106, 113 (1848))). A litigant cannot elude the strictures of 

section 1292(b) and “make an end-run around this limit,” 

Groves, 941 F.3d at 324, simply by obtaining recertification of 

an order for interlocutory appeal.

For the foregoing reasons, we dismiss the petition for 

permission to appeal in No. 19-8004 and the related appeal in 

No. 19-7083.

So ordered.