PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 06

- 4732

_____________

RONALD LONG, Appellant

v.

ATLANTIC CITY POLICE DEPARTMENT; JAMES SCOPPA; ERNEST JUBILEE; NEW JERSEY STATE POLICE;
NANCY J. TAYLOR; LAURA A. BARBATO

,

_______________
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 06

- cv

- 00 785)
District Judge: Hon. Noel L. Hillman

_______________

Argued
November 9 , 2011

Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges

.2 (File : February 13, 2012 )

_______________

Alexander Bilus [ARGUED] Carolyn H. Feeney
Dechert
2929 Arch Street

– 18 th Fl. Philadelphia, PA 19104 Counsel for Appellan t

Matthew H. Duncan [ARGUED] Fine, Kaplan & Black
1835 Market Street

- #2800 Philadelphia, PA 19103
Amicus Curiae Counsel

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

.

Ronald Long, a New Jersey state prisoner who proceeded pro se before the United States District Court for the District of New Jersey , appeals an order of that Court denying his untimely motion for reconsideration of a prior
order dismissing his complaint. Long relies on Federal Rule of Appellate Procedure 4(a)(4)(A), which provides that

, if a timely motion for reconsideration under Federal Rule of Civil Procedure 59(e) is filed

, the time to appeal begins to run from
the district court ’ s disposition of the motion . He reasons that

, here, we can re view the underlying dismissal order because
his motion for reconsideration should be deemed timely since3 mail delay within the prison caused him to file the motion
late.

For the reasons set forth below, w e agree with Long that, in cases where the record supports a finding of delay in prison mail delivery, such delay may make an untimely Rule 59(e) motion timely so as to permit the exercise of appellate jurisdiction over an order we would otherwise lack jurisdiction to review

. Whe n the record is insuffic ient to
support a prisoner’s allegations of prison delay, we may remand to the District Court for appropriate fact

- finding. Ultimately, however, we rule that the issue of delay need not
be resolved on remand because we have jurisdiction over the
District Court’s d enial of reconsideration which, in this case, proves sufficient.

I. Factual Background and Procedural History

On February 21, 2006, Long filed a n in forma pauperis complaint under 42 U.S.C. § 1983 against the Atlantic City Police Department, the New Jersey State Police, two police officers, and two forensic chemists. He alleged that the defendants conspired to obtain a capital murder conviction against him by knowingly presenting false evidence at his trial, and deliberately preventing him from obtaining DNA testing that would prove his innocence. 1

1 In his own words, Long claimed that “the Defendants violated [his] constitutional and civil rights ... by committin g perjury and/or fabricating evidence and engaging in conspiratorial acts to hide evidence to prevent DNA testing, causing ... [him] to be falsely convicted of capital murder.” (Amicus App. at 133; see also id. at 137 (alleging a The complaint4 s ought monetary damage s to compensate him for the consequences of the alleged conspiracy.

On August 16, 2006, after screen ing the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A

, 2 the District
Court issued a memorandum concluding that Long’s claims
were barred by Heck v. Humphrey , 512 U.S. 477 (1994)

, unless and until Long could demonstrate that his state court conviction was invalid. Accordingly, the District Court
dismissed th e complaint sua sponte

, even though the defendants had not yet been served. The Court issued an accompanying order closing the case that same day

. On August 21, 2006, the memorandum and the order were
entered on the District Court’s docket. Thus, under the rules
then in effect

, 3

conspiracy to “hide the evi dence to prevent it from being DNA tested and to prevent ... [Long] from being able to establish his innocence”).) Citations to “Amicus App.” are to the Appendix filed by court

- appointed Amicus, Fine, Kaplan & Black, R.P.C. (“Fine Kaplan”). Long had until September 4, 2006 to file a

2 Collective l y, th o se provisions provide that district
courts should sc reen civil complaints in which a prisoner seeks redress from a governmental entity or officer, and dismiss the case if the action is (1) frivolous or malicious; (2)
fails to state a claim on which reli ef may be granted; or (3) seeks monetary relief against a defendant who is immune
from such relief.

3 Currently , a “ motion to alter or amend a judgment [under Rule 59(e)] must be filed no later than 28 days after the entry of the judgment, ” Fed. R. Civ. P. 59(e) , and “all deadlines stated in days (no matter the lengt h) are computed5 motion for reconsideration under Rule 59(e)

. See Fed. R. Civ. P. 59(e) (stating the deadline by reference to the “entry of the judgment”).

He did not do so. Instead, on September 25 , 2006, Long filed 4 a motion for reconsideration along with a letter brief explaining that he had not received the District Court’s filings until September 22, 2006

– after the 30

- day period to
file an appeal under Appellate Rule 4(a) (1) had lapsed. 5

in the same way, ” Fed. R. Civ. P. 6 (Advisory Committee ’s

Notes on 2009 Amendments). However, at the time Long’s case was before the District Court, a 10

- day deadline a pplied

, Fed. R. Civ. P. 59(e) (2006), and time periods involving less than 11 days were calculated by excluding intermediate
Saturda ys, Sundays, and legal holidays, Fed. R. Civ. P. 6(a) (200 6). The motion for reconsideration claimed that the delay was caused, in part, by Long’s transfer from one state prison to another. Specifically, Long claimed that although he had informed the

4 Long signed his motion on September 25, 2006, and
it was entered o n the District Court’s docket on October 2, 2006. Heeding the Supreme Court’s instruction in Houston v.
Lack , 487 U.S. 266 (1988), we presume, for purposes of our discussion, that Long filed his motion on the date he executed
it. See id. at 276 (“[T]he n otice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.”).

5 While we will make references to the Federal Rules of Civil Procedure simply as “Rules,” we will use the short

hand “Appellate R ule” when referring to the Federal Rules of Appellate Procedure.6 District Court of his transfer to a new prison, he received the
Distri ct Court’s memorandum and order only after they w ere

sent to his old prison and then forwarded to him

. He also attributed his delayed receipt of those documents to the fact that officials at his new prison “open Legal Mail outside of the inmate’s presence

. ” (Amicus App. at 149.)

On Oct ober 4, 2006, the District Court issued a
memorandum treating Long’s motion for reconsideration as timely because he had “executed his motion on September 25,
200 6, within three days of receipt ” (Amicus App. at 155), but

r ejecting Long’s motion for reconsideration on the merits

, based on Heck . The District Court’s memorandum, as well as
its accompanying order, were entered on the docket on October 6, 2006. On October 31, 2006, Long signed a notice of appeal that was there fore timely as measured from the denial of reconsideration, see Fed. R. App. P. 4(a)(1) (A) ( providing that a notice of appeal must be filed within “30 days after entry of the judgment or order appealed from” in a
case in which the United States or its agen t is not a party)

, but untimely as measured from the August 16 , 2006 order dismissing the case

.

We consolidated Long’s appeal with other cases presenting similar issues implicating Appellate Rule 4(a) for the purpose of determining whether, and to what extent, we have appellate jurisdiction to consider it

. 6

6 Those other cases are Baker v. United States , Nos.
08

- 2288 and 08

- 2365, Barner v. Williamson , No. 08

- 1025,
and Cycle Chem, Inc. v. Jackson , No. 09

- 1320. They are the subject of separate di spositions.7 II. Discussion 7

The parties agree that we have jurisdiction to review
the District Court’s order denying Long’s motion for
reconsideration

. 8 Long contends that we also have jurisdiction to review th e underlying dismissal order because
his motion for reconsideration should , under Appellate Rule 4(a)(4)(A), toll his time to file a n appeal. That Appellate
Rule provides, in pertinent part, that certain “timely file[d]”
post

- judgment motions, including m otions to reconsider under Rule 59(e), serve to postpone “the time to file an appeal

... [until] the entry of the order disposing of the last ... remaining motion.” Fed. R. App. P. 4(a)(4)(A). Although Long acknowledges that his motion for reconsideration wa s late, he asks us to treat it as timely, due to the mail handling in prison that allegedly delayed his filing.

O ur A micus, Fine Kaplan, takes a contrary view regarding Long’s attempt to appeal the underlying order of
dismissal . According to Amicus’s v iew of the law

, when

7 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). We have appellate jurisdiction, if at all, pursuant to 28 U.S.C. § 1291.

8 Because none of the defendants named in Long’s complaint were served before his complain t was dismissed, those parties were not present to take a position on the jurisdictional questions presented in this appeal. To facilitate our inquiry, we appointed Fine Kaplan to file an amicus brief on behalf of the Court, and Dechert LLP to file a brie f on behalf of Long. The Court is grateful for the superb assistance provided by those firms.8 Long did not receive a copy of the District Court’s dismissal
order until after the 30

- day time limit for filing a notice of appeal had lapsed, his only recourse was to file a motion under Appellate Rule 4(a)(5) for an extension of tim e to appeal, 9 or a motion under Appellate Rule 4(a)(6) to reopen the time to file an appeal. 10 Because Long filed neither of
those motions and instead filed a motion for reconsideration under Rule 59(e), Amicus argues that we lack jurisdiction to
review th e District Court’s underlying dismissal order

.

9 Appellate Rule 4(a)(5) provides, in relevant part, that the district court “may extend the time to file a notice of appeal if” a party seeks an extension (1) n o later than 30 days after the otherwise applicable appellate deadline; and (2) “shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(i)

- (ii).

10 Appellate Rule 4(a)(6) provides, in relevant part, that the district court “may reopen the time to file an appeal for a period of 14 days ” if (1) the court determines the movant did not receive notice of the entry of the appealable order within 21 days of its entry; (2) the motion is filed in the earlier period of 180 days of the appealable order’s e ntry or 14 days after the moving party receiv es notice; and (3) the court determines that no party would be prejudiced by reopening the time to appeal. Fed. R. App. P. 4(a)(6)(A)

- (C).9 A. Our Jurisdiction to Review the District Court’s
Initial Dismissal Order

We therefore begin our analysis by evaluating whether we have jurisdiction to review the District Court’s order dismissing Long’s co mplaint. That inquiry leads us to examine two distinct questions.

First, we address whether allegations of prison delay

can excuse the untimeliness of a motion to reconsider under Rule 59(e) so as to permit us to exercise jurisdiction under Appellate R ule 4(a)(4)(A) to review the underlying dismissal

. I f an untimely Rule 59(e) motion can be considered “timely” as a result of prison delay, Appellate Rule 4(a)(4)(A) permits “the time to file an appeal [to] run[]

... from the entry of the order disposing of

... [that] motion.” Fed. R. App. P. 4(a)(4)(A). Second, assuming Appellate Rule 4(a)(4)(A) does provide an avenue for us to reach the underlying dismissal order, we consider whether there is a temporal limitation on the operation of that rule that would p revent its application in
circumstances where a Rule 59(e) motion is filed after the otherwise applicable time period for filing a notice of appeal

,

s ee Fed. R. App. P. 4(a)(1), has lapsed.

We address those questions in turn.

1. Whether Prison Delay Can Render an Untimely Rule 59(e) Motion Timely

The idea that prison delay may serve to toll the time to appeal stems from our holding i n United States v. Grana , 864 F.2d 312 (3d Cir. 1989)

, abrogated on other grounds by Virgin Islands v. Martinez , 620 F.3d 32 1 (3d Cir. 2010)

.10 There, w e held that delay by prison authorities in delivering mail to a prisoner should be excluded in calculating the time for filing a notice of appeal in a criminal case. See id. at 313. Although t he prisoner in Grana filed a pro se appeal “fifteen days out of time” under Appellate Rule 4(b), Grana alleged that the prison had “negligently handled his incoming mail,
and as a result he did not receive the district court’s final order until May 5, 1988, after the expiration of the appea l period.” Id. at 314. He consequently argued that, for purposes of jurisdiction, his appeal should be treated as having been filed on time. We agreed.

Pointing to the Supreme Court’s adoption of the prison
mail box rule, 11

11 As mentioned supra note we observed that “prison delay beyond the litigant’s control cannot fairly be used in computing time for appeal” and we “perceive[d] no difference between delay in transmitting the prisoner’s papers to the court and transmitting the court’s final judgment to him so that he may

prepare his appeal.” Id. at 316. W e therefore held that

, “in computing the timeliness of pro se prisoners’ appeals, any prison delay in transmitting to the prisoner notice of the district court’s final order or judgment shall be excluded from the computation of an appellant’s time for taking an appeal.”
Id. We remanded the case to the district court to determine whether the appeal was timely under th at standard because “the record d[id] not show the date the prison received notice
of the district court’s final order or conclusively establish the

4 , t he Supreme Court has held that a prisoner’s notice of appeal is deemed filed upon delivery to the prison mail system. See Houston , 487 U.S. at
276. A variation of th at rule is currently embodied in Appellate Rule 4(c).11 date the prison transmitted the notice to [the] appellant.” Id.

We instructed that , on remand, the prison would have “the
burden ... of establishing the relevant dates” because the prison was best equipped to provide tha t information

. Id.

In United States v. Fiorelli , 337 F.3d 282 (3d Cir. 2003), we extended the Grana rule to permit an untimely motion for reconsideration to be made timely so that it would

, in turn, toll the time to appeal under Appellate Rule 4(a)(4)(A)

. Fiorelli filed a civil case under 28 U.S.C. § 2255

, 12

12 After first observing that t he time to appeal an order
entered on a § 225 5 motion is governed by Appellate Rule 4(a), we began our tolling discussion in Fiorelli by evaluating

“ the applicability of the F ederal Rules of Civil Procedure to [ Fiorelli’s ] § 225 5 motion.” Fiorelli , 337 F. 3d at 285. We stated that we were considering “the requirement under Civil Rule 58 that judgments be set forth on a separate document and entered in the docket of the district clerk, and the time limitations accompanying motions for reconsideration under Civil Rules 59 and 60,” id. at 286; we concluded that those civil rules applied in the § 225 5 context, see id. at 286

- 87; and we proceeded to evaluate whether Fiorelli’s untimely motion under Rule 59(e) could permit his appeal to be properly filed under Ap pellate Rule 4(a)(4)(A), see id. at 287

- 88. mounting a collateral attack on his criminal
conviction. Id. at 284. His claim for relief was denied by the district court on April 9, 2001. Id. at 285. On April 30, 2001,
outside of the then

- appl icable 10

- day period for filing a
motion for reconsi deration but within the 60

- day period for

fil ing a notice of appeal, see Fed. R. App. P. 4(a)(1)(B) (providing that a notice of appeal must be filed within “6012 days after entry of the judgment or order ap pealed from” in a case in which the United States or its agent is a party), he
filed what the Fiorelli court ultimately construed as a Rule
5 9(e) motion for reconsideration, Fiorelli , 337 F.3d at 285

, 288

. The district court denied that motion on May 18, 2001, and Fiorelli filed a notice of appeal on July 17, 2001. Id.

Thus, as in this case , Fiorelli’s notice of appeal was timely as measured from the denial of the untimely motion for reconsideration, but was otherwise untimely. Fiorelli alleged, howev er, that he received the district court’s original order “during the normal mail distribution at the feder al prison where he [was] confined

, ” 13 days after the district court issued the order denying his § 2255 claim

. Id. at 288 (internal quotation marks omitted). The question, therefore,
was whether Fiorelli’s delayed receipt of the original order

, which delay was allegedly caused by prison officials

, should
result in his untimely motion for reconsideration being
viewed as timely

, thereby render ing his a ppeal of the original order denying his § 2255 claim timely under the provisions of Appellate Rule 4(a)(4)(A). See id. (“Fiorelli’s appeal may be properly filed if his motion for reconsideration is deemed timely, thus invoking the tolling provision of App ellate Rule 4(a)(4)(A).”).

We answered that there was “no reason why Grana ’s exclusion of prison delays from the time limits of jurisdictionally sensitive filings should not apply to motions
for reconsideration

, ” inasmuch as such deadlines are “critical to appellate jurisdiction

. ” I d. at 289 . It followed that “a prison’s actual delay or interference in the delivery of a final
order of the district court is excluded from the calculation of
the timeliness of motions for reconsideration

... filed by pro13 se inmates.” Id. at 289

- 90. While we emphasized that th e tolling rule requires a prisoner to allege that actual delay or
interference in mail delivery was caused by the prison, we were satisfied that Fiorelli’s “statement that he recei ved the
District Court ’s order duri ng the normal mail distribution ”
could refer to such interference and remanded for the district court to determine whether the tolling rule could be properly
invoked. Id. at 290 (internal quotation marks omitted)

. As
we did in Grana

, we inst ructed the district court to undertake factual findings as to “the relevant dates of the prison’s receipt and delivery of the District Court’s order” so that, on review, we could make a “determination of our jurisdiction.”
Id.

Notwithstanding Fiorelli ’s extension of the Grana tolling principle to a case governed by the Federal Rules of Civil Procedure and Appellate Rule 4(a) , we seemed to reject that approach in Poole v. Family Court of New Castle County

, 368 F.3d 263 (3d Cir. 2004). In Poole , a pro se p risoner filed an untimely notice of appeal, “apparently because of delay in receiving notice of the entry of the order dismissing his
claims.” Id. at 264. Citing Grana , Poole argued that “his [otherwise untimely] notice of appeal should be regarded as
ha ving been filed on time because there was a delay in his receipt of notice from the district court clerk’s office regarding the entry of the order of dismissal.” Id. That delay

was allegedly the result of “Poole’s transfer from one
correctional instituti on to another shortly before the order of
dismissal was entered.” 13

13 More specifically, the delay in Poole occurred because the clerk’s office mailed the notice to a prison where

, by the time the letter arrived, Poole was no longer Id. at 264

- 65. Without mentioning14 Fiorelli

, we concluded that the Grana tolling rule did not apply, distinguishing Poole’s appeal because it

– unlike the appeal in Grana

– occurred in a c ivil case

, id. at 265

- 66, and because “the delay was not primarily due to Poole’s status as
an inmate but to th e simple fact that he was moved, ” i d. at 266 n.4. Poole’s proper remedy, we explained , would have been to file a motion to reopen in accordance with Appellate Rule 4(a)(6). See id. at 266

- 67.

While Poole is plainly in tension with Fiorelli

, we view the holding in Poole as turn ing not on its distinction
between criminal and civil cases but rather on the nature of the alleged delay. In Fiorelli

, the delay in the prisoner’s receipt of the order was allegedly the result of the prison’s handling of the mail. It was, in other words a classic prison delay case, after the manner of Grana . In Poole , by contrast, the delay allegedly was caused by the cl erk’s office and did
not stem from actions or omissions by prison officials. Cf.
Fiorelli , 337 F.3d at 289 (“ Grana makes clear that only

incarcerated. Poole , 368 F.3d at 265. Poole h ad sent two
letters to the d istrict c ourt concerning his change in address. The first, received just before the order was mailed to him, stated that Poole would be “returning to P.A. 3

- 24

- 02 is my Max out date and then my detainer come up.” Id. It did n ot contain any Pennsylvania address or request a change in address. The second letter, received just after the order was

sent

, contained Poole’s new address but “did not state expressly that Poole’s address had changed and did not request that the clerk c hange the address listed on the docket.”
Id. As a result, it did not alert the clerk’s office that the order “sent a few days earlier had been mailed to a facility where Poole was no longer housed.” Id.15 delays caused by the prison warrant tolling of the filing deadlines, and ‘[t]o the extent that the delay represents s low mail, there is nothing that this Court can do to preserve an appellant’s right to appellate review.’” (emphasis added) (quoting Grana , 864 F.2d at 316)).

We therefore read Fiorelli to articulate a still

controlling rule that applies when delay is al legedly caused by
actions or omissions of prison officials in the delivery of mail to a prisoner litigating pro se. 14 We reaffirm that we can view a Rule 59(e) motion as timely in such situations, allowing us

to exercise jurisdiction pursuant to Appellate Rule 4(a)(4)(A) over an appeal of the underlying case

- dispositive order

, if the delay in filing the Rule 59(e) motion is caused by “a prison’s actual delay or interference in the delivery of a final order of
the district court

. ” 15

14 We note that in Fiorelli the pro se prisoner

att empted to toll the deadline for filing a motion for reconsideration under Rule 59(e) so as to permit an appeal in accordance with Appellate Rule 4(a)(4)(A). In Poole , by contrast, the pro se prisoner attempted to toll the deadline for filing a notice of a ppeal under Appellate Rule 4(a)(1). Given recent Supreme Court precedent, see Bowles v. Russell , 551 U.S. 205 (2007), that distinction may be a significant one. However, as discussed infra in Part II.A.2, the question of whether prison delay tolling prin ciples are applicable to deadlines that are jurisdictional in character, such as Appellate Rule 4(a)(1), is not implicated in this case because Long seeks only to have us deem his Rule 59(e) motion timely. Id. at 289. Thus, whe n a pro se prisoner

15 That is not to say, of course, that a pro se pri soner who experiences mail delay does not have other avenues that16 makes allegations in connection with a motion for
reconsideration that could reasonably be construed as a non

frivolous assertion that the prison delay ed delivering the court
order that he is asking be reconsidered

, the district court
shou ld engage in the fact

- finding necessary to a jurisdictional analysis under Appellate Rule 4(a)(4)(A)

. See id. (“The
timeliness of a motion under ... Civil Rule 59 ... is critical to appellate jurisdiction.”)

. In some instances, such as whe n the prisoner’s al legations are uncontested, the d istrict c ourt may of course choose to credit what the prisoner says . There ought, however, also be some effort to confirm that the order was sent to the prisoner ’ s correct prison address and an explicit determination that t he prisoner ’ s allegations as to the date of receipt are accepted as being true

. 16

can serve to preserve his or her appellate rights. Appellate Rules 4(a)(5) and 4(a)(6), see supra notes W e then, in turn

,

9

- 10 , both provide means to do so, and are undoubtedly a more direct route to securing access to an appellate courtroom. Cf. Poole , 368
F.3d at 266

- 67 (discussing requirements for relief under Appel late Rules 4(a)(5) and 4(a)(6)) . Indeed, when

con fronted with his delayed receipt of the District Court’s memorandum and order in this case, Long would have been far better served by filing one of those motions rather than the motion for reconsideration he instead filed, as our ability to
review the Dist rict Court’s initial order of dismissal turns on whether his allegations of prison delay can be credited.

16 Because the timeliness of a motion for reconsideration implicates our power to hear an appeal under Appellate Rule 4(a)(4)(A), a bare statement th at the prisoner’s allegations are assumed to be true will not do. Some kind of
fact

- finding is essential. We note, moreover, that making assumptions about timeliness could be viewed as an extension17 would accept any such fact

- finding as long as it was not clearly erroneous. Even whe n the d istrict c ourt determines it
needs further information to decide whether the prison actually delayed or interfered with a prisoner’s receipt of an order, w e are not suggesting that a hearing will be necessary; we are instead directing only that

, in such a case, the prison
has the burden of providing evidence of the date it received
the district court’s final order and the date on which it was transmitted to the appellant. See Grana , 864 F.2d at 316. A s a practical matter, this should add no burden to prison record

keeping because prison officials have, at least since G rana , been on notice that they should maintain “clear and accurate mail logs.” Id.

In the present case

, Long certified 17

of time to file a motion for reconsideration. That woul d be inappropriate, given the explicit instruction in Rule 6 that time extensions for certain motions, including motions pursuant to Rule 59(e), are forbidden. See Fed. R. Civ. P. 6(b)(2) (“A court must not extend the time to act under Rules 50(b) and (d) , 52(b), 59(b), (d), and (e), and 60(b).”). District

courts should of course heed that direction and hew strictly to the stated time limits, unless there is prison delay that serves as a basis for treating an untimely motion as timely. that his delay ed receipt of the District Court’s memorandum and order was a
result of t wo things: first, that those documents w ere inc orrectly mailed to his old prison, and second, that his new

17 Long supported hi s allegations with a certification
that stated his view of the facts and contained an averment that “a willfully false statement [would] subject [him] to punishment.” (Amicus App. at 150.)18 prison open ed legal mail before delivering it to prisoners

. Thus, a lthough some portion of the delay was allegedly caused by the District Court’s clerk’s office and any such
time lost would not c ount towards making Long’s untimely
motion for reconsideration timely, some of the delay was also allegedly a consequence of prison delay , as Long complains
of his new prison’s practice of opening legal mail before sending it to inmates

. We cannot sort ou t these alleged sources of delay, however, because the District Court made no express finding as to whether the prison actually delayed or interfered with Long’s receipt of its order, and the record
before us does not indicate when the prison where Long

cu rrently resides received the D istrict C ourt’s memorandum
and order or when it transmitted those documents to Long.

We would therefore ordinarily remand to the District Court to
find those facts.

2. Whether There is a Temporal Limitation

on Fiorelli ’s Tol ling Rule

Our Amicus, however, indicates that remand would be
fruitless here since there is a 30

- day outer time limit (or 60

- day, when the United States or its agent is a party ) on
Fiorelli’s tolling rule because Appellate Rule 4(a)(1) imposes that jurisdi ctional time limit on the filing of a notice of appeal. Amicus’s argument is based on the Supreme Court’s
decision in Bowles v. Russell , 551 U.S. 205 (2007). In that case, the Supreme Court held that timing requirements for filing notices of appeal, a s s et forth in 28 U.S.C. § 2107 and from which Appellate Rule 4(a)(1) is derived, are mandatory and jurisdictional, and, as such, a court has no power to create equitable exceptions to them. 551 U.S. at 214. As we discuss more fully in the companion case fi led today, Baker v. United19 States , Nos. 08

- 2288 and 08

- 2365, there is no doubt after
Bowles that the rules listed in 28 U.S.C. § 2107, one of which
is restated in Appellate Rule 4(a)(1), are jurisdictional. 18

18 Though the subject of discussion at oral argument,
we need no t consider whether Appellate Rule 4(a)(4)(A) is likewise jurisdictional, or instead, a claims

- processing rule

. Although we similarly did not resolve that issue in Lizardo v.
United States , 619 F.3d 273 (3d Cir. 2010), that decision implies that Appellate Rule 4(a)(4)(A) is a claims

- processing
rule because it

– much like Rule 59(e) (and unlike Appellate Rule 4(a)(1))

– does not appear in a statute and was promulgated under the Rules Enabling Act

. S ee Lizardo , 619 F.3d at 277 (“Rule 59(e) is akin to Rule 40 04 of the Federal Rules of Bankruptcy Procedure. Both rules were promulgated by the Supreme Court under the Rules Enabling Act.”). We do note, however, that, a conclusion that Appellate Rule 4(a)(4)(A) is a claims

- processing rule would not prevent us fro m dismissing

, sua sponte

, untimely appeals filed under Appellate Rule 4(a)(4)(A). See United States v.
Mitchell , 518 F.3d 740, 7 50 (10th Cir. 2008) (recognizing that, where “a rule implicates judicial interests beyond those of the parties, it may be appro priate for a court to invoke the
rule sua sponte in order to protect those interests,” and holding that the court had the power to enforce claims

processing rules by way of a sua sponte dismissal). In fact, given the administrative and institutional inter ests in enforcing appellate deadlines notwithstanding the parties’ actions before us, a persuasive argument can be made that sua sponte dismissal should be the rule rather than the exception.

See id. at 754 (Lucero, J., dissenting) (“I would dismiss
almos t all untimely appeals, regardless of whether an appellee forfeits its objection by not properly raising it.”).20 Because of that, and because Fiorelli tolling c an permit a litigant entitled to its application to file a notice of appeal from the original order after Appellate Rule 4(a)(1)’s jurisdictional deadline has lapsed, our Amicus has taken the position that Fiorelli cannot allow an untimely motion for

recon sideration to be deemed timely for purposes of Appellate Rule 4(a)(4)(A) if that motion is filed after the expiration of the 30

- or 60

- day jurisdictional period for filing a notice of appeal under Appellate Rule 4(a)(1). We re we to hold otherwise, Amicus warns, we would be allowing, and perhaps encouraging, an end

- run around Appellate Rule 4(a)(1)’s jurisdictional deadline.

But Amicus’s argument is misplaced. Properly viewed, the Fiorelli tolling rule does not extend any of the
deadlines set forth in 28 U.S.C. § 2107 and Appellate Rule 4(a)(1) . Rather, it concerns the “ timeliness ” of a motion for
reconsideration , which then determines

, under Appellate Rule 4(a)(4)(A) , the order s over which we can exercis e jurisdiction. When facts are found that demonst rate prison delay, all that Fiorelli does is allow us to , by excluding the time lost due to prison delay, deem as timely what would otherwise be an untimely motion for reconsideration. After subtracting such time, the prisoner must still file his appeal

w ithin 30 (or 60) days of the district court’s disposition of his motion. If he does so, he will be considered to have properly
filed his appeal in accordance with Appellate Rule 4(a)(4)(A)

. Fiorelli’s tolling rule is nothing more than an application of

t he principle from Houston v. Lack , 487 U.S. 266 (1988 ) that time lost due to prison delay “cannot fairly be used in computing time for appeal.” Grana , 864 F.2d at 316.21 It is quite possible, then, that, after fact

- finding by the
District Court , we could c onclude that we do have jurisdiction to consider the District Court’s underlying order that dismissed Long’s complaint. Our usual practice would
therefore be to remand for the District Court to find the facts
that “are essential for a determination of our jurisdiction”
over that order. Fiorelli , 337 F.3d at 290. That step is unnecessary in this case, however, since we agree with the parties that we have jurisdiction to consider Long’s appeal to the extent he challenges the District Court’s denial of his motion for reconsideration, 19 which proves sufficient in this

case

.

B. The District Court’s Denial of Reconsideration

W e acknowledge that our review of th e order denying
reconsideration is subject to a more deferential and
circumscribed standard of revi ew than would apply if we also

19 Earlier precedent considered any “sub[s]tantive action a court takes on an untimely motion ... a nullity.”
Sonnenblick

- Goldman Corp. v. Nowal k , 420 F.2d 858, 861 (3d Cir. 1970). More recent authority, however, establishes that we “can no longer treat Rule 59(e) as a jurisdictional rule, nor view ... [an] untimely motion for reconsideration as a nullity.” Lizardo , 619 F.3d at 277. It logically follows that a district court’s action on such a motion can, likewise, not be deemed a nullity, and we therefore have jurisdiction to review a timely appealed order disposing of an untimely motion for reconsideration. However, because any such order is

ap pealable in its own right, the filing fee waiver provided for in Appellate Rule 4(a)(4)(B)(iii) does not apply to a notice of appeal challenging the disposition of the untimely motion.22 were to have jurisdiction to consider the underlying dismissal
order , as we review only whether the District Court’s denial
of reconsideration constitutes an abuse of discretion

. 20

20 If we had jurisdiction to consider the underlying order, we would exe rcise plenary review to determine whether the District Court properly dismissed Long’s complaint. See Tourscher v . McCullough , 184 F.3d 236, 240 (3d Cir. 1999). Some cases intimate that our review of an order denying reconsideration is, likewise, plenary to the extent that “the denial of reconsideration is predicated on an
issue of law.” Max’s Seafood Cafe ex rel. Lou

- Ann, Inc. v. Quinteros , 176 F.3d 669, 673 (3d Cir. 1999); see N. River Ins.
Co. v. CIGNA Reinsurance Co. , 52 F.3d 1194, 1203 (3d Cir.
1995 ) (“Where a district court’s denial of a motion to reconsider is based upon the interpretation of legal precepts, however, our review of the lower court’s decision is plenary.”). That idea, however, stems from the understanding that “an appeal from a deni al of a Motion for Reconsideration brings up the underlying judgment for review,” McAlister v. Sentry Ins. Co. , 958 F.2d 550, 552

- 53 (3d Cir. 1992) (citing Fed. Kemper Ins. Co. v. Rauscher , 807 F.2d 345, 348

- 49 (3d Cir. 1986)), which is only true to the ex tent that Appellate Rule 4(a)(4)(A) allows “the time to file an appeal [to] run[] for all parties from the entry of the order disposing of” a timely filed Rule 59 motion, Fed. R. App. P. 4(a)(4)(A)(v); see Quality Prefabrication, Inc. v. Daniel J. Keating Co. , 675 F.2d 77, 78 (3d Cir. 1982) (“A timely appeal from an order denying a Rule 59 motion to alter or amend brings up the underlying judgment for review.” (citing Fed. R. App. P. 4(a)(4))). Thus, when there is no timely filed post

- judgment
motion to tr igger Appellate Rule 4(a)(4)(A)’s tolling provisions and when an appeal is untimely as measured from See,23 e.g. , Lazaridis v. Wehmer , 591 F.3d 666 , 669 (3d Cir. 2010) (“[T]he appropriate standard of review [of an appeal from the district court’s denial of a Rule 59 motion] is for an abuse of discretion.”). Consequently, in the ordinary case, we would not assume that reviewing a denial of reconsider ation would be functionally the same as reviewing the underlying order,
even if the former covered all of the same issues as the latter.

However, though we are bound by an abuse of discretion standard in reviewing the denial of reconsideration,
it would indeed be an abuse of discretion in this case if the
District Court were wrong in saying that Heck required dismissal of Long’s complaint

. See Planned Parenthood of

Cent. N.J. v. Att ’ y Gen. of the State of N.J. , 297 F.3d 253, 265 (3d Cir. 2002) (“[A] cou rt abuses its discretion when its ruling is founded on an error of law or a mis application of
law to the facts .” (internal citation omitted) )

. Thus, even though we cannot conclude on this record whether we have jurisdiction to exercise plenary review to c onsi der whether
the District Court erred in dismissing Long’s complaint , the legal question presented is essentially the same under either plenary or abuse

- of

- discretion review: whether the District Court correctly found Long’s complaint to be barred by He ck

.

In Heck

, the Supreme Court held that a § 1983 suit
should be dismissed when a “ judgment in favor of the plaintiff would necessarily imply the invalidity of h is
conviction or sentence ... unless the plaintiff can demonstrate
that the conviction or senten ce has already been invalidated.”
512 U.S. at 487. Here, Long’s complaint seeks the sort of

the underlying judgment, we cannot exercise plenary review over an order disposing of a motion for reconsideration.24 relief that is plainly barred by Heck because he seeks § 1983 relief on the ground that the defendants conspired to obtain a capital murder con viction against him

, but he has not
demonstrate d that his conviction has already been invalidated

. ( See Amicus App. at 133 (alleging that “the Defendants violated [Long’s] constitutional and civil rights ... by committing perjury and/or fabricating evidence and engaging
in co nspiratorial acts to hide evidence to prevent DNA testing, causing ... [Long] to be falsely convicted of capital murder”).) Although the Supreme Court has clarified that
Heck does not bar a litigant from seeking access to DNA evidence through § 1983

, see Sk inner v. Switzer , 131 S. Ct. 1289, 1298 (2011), the conspiracy described in Long’s complaint does not , even liberally construed, seek such relief.

Therefore, we hold that the District Court committed no legal error in denying Long’s motion for reconside ration,
and so did not abuse its discretion in declining to change its order dismissing Long’s complaint . And because the same
result would obtain were we to ultimately determine that we have jurisdiction to review the District Court’s dismissal order, we need not remand for Fiorelli fact

- finding

.

III. Conclusion

For the foregoing reasons, we will affirm the judgment
of the District Court.