John G. Roberts, Jr.: We'll hear argument next in Case 06-5306, Bowles versus Russell. Mr. Mancino.
Paul Mancino Jr.: Mr. Chief Justice, and may it please the Court: Petitioner is before this Court because he followed an order of the district court. He filed his notice of appeal within the time authorized by the district court. It was only when the matter came before the court of appeals was it raised that the district court apparently had no authority to grant a 17-day extension, although it specified a specific date rather than the 14 days in connection with the case.
Anthony M. Kennedy: Yes, it was authorized by the district court in the sense the district court put it on a piece of paper. It wasn't authorized because the district court had no authority to extend that.
Paul Mancino Jr.: The district court put it on there. When you look at the actual entry itself, it's a handwritten entry. There's no way of telling from the handwritten entry whether that entry was even entered on the docket on the same date because all you have is the handwritten entry, February 10, file your appeal by February 27, which is unusual in a civil case because normally in a civil case you get a judgment; you don't get a directive from the Court that you have 30 days to file a notice of appeal or anything in connection with this. So I don't think it's unreasonable to rely upon a directive from a court.
John G. Roberts, Jr.: But you knew that 14 days was the maximum because the motion asking for it cited and quoted from the rule.
Paul Mancino Jr.: Well, that... we did cite from the rule. That is correct. When the order came out... well, first of all, we were glad to get the order to allow time to appeal; but looking at the order, or just looking at the date, something had to be done. And Of course, we filed on one day before the end date--
John G. Roberts, Jr.: What if, what if the District Court gave you an extra month? Would your argument still be the same, that that... because the court set it, that trumps the limitation in the rule?
Paul Mancino Jr.: --Well, then you get into certain time limits, whether it's reasonable under the circumstances, would a reasonable attorney or litigant rely upon a, you know, expansive period of time that the court gave to it. But here certainly this order is not unreasonable. It's certainly within the confines. And you have a specific end date, do your notice of appeal by this date.
Ruth Bader Ginsburg: But wouldn't a reasonable lawyer have said see, I referred to the rule, when I made this motion for extension of time. The rule said 14 days; this judge obviously made a slip. He miscalculated. Wouldn't a lawyer faced with what the rule clearly says and an inconsistency scribbled on an order, say the judge probably made a mistake? So I better, if I want to protect my client, do what the rule says?
Paul Mancino Jr.: Well, looking back, that is probably correct. But looking at the order, and the way it came out, and the fact that you know, the... the rule allowed for a reopening of the appeal, just looking at the end date of the order, make sure the notice of appeal is filed by that date, it would seem to me that the party who is adversely affected by it may object on that basis, saying Judge, you have no authority to do this, what are you doing in connection with--
John G. Roberts, Jr.: Why isn't... this is just a notice of appeal. Why would you... why not file it the same day? In terms of looking at it from some equitable sense, I don't understand why you wait toward the end of the period assuming you hadn't focused on the difference between the 14 days and the days allowed. What... why, why would you delay filing the notice of appeal?
Paul Mancino Jr.: --Well, the only reason for delaying it is obviously workload. And you don't want to get all briefs due within a short period of time, once you get your notice of appeal filed in a particular case, because you have time limits for getting the record, your briefing, and you know, there's a number of appeals going out... not in this Court, but you know there were a number of appeals going on. And my normal practice is you know, file your notice of appeal near the end of the applicable appeals time.
John G. Roberts, Jr.: Does it make... does it a difference that we're dealing with the safety valve provision? In other words, you've got the 30 days to file; and then this rule allows you to... it's a safety valve, if you didn't get the notice or whatever, you've got a certain procedure that can give you the extra 14 days. And now it seems to me that you're asking for a safety valve on top of a safety valve. And I wonder if there's some point where you cut off the... allowing an out for missing the deadline.
Paul Mancino Jr.: Well, I suppose at some point, someone may say well, if the court gave you 180 days to do the act, someone may say well, that appears to be unreasonable in connection with that. I think the safer thing is just to put the order down, say application, reopen the appeal time, granted. And then it would cause someone to go you know, go back, look at the rule, see how much time is allotted under the rule in connection with the case. But I don't think it's unreasonable; in these circumstances we're only talking about three days to do an act. The act was done in two days.
John G. Roberts, Jr.: Well, but as soon as you start talking about an exception from the provision in the rules, then you're going to get a lot of applications and there are going to be a lot of different reasons for why it wasn't filed on the last day. Once that... it seems to me, you open it up for an indeterminate ruling.
Paul Mancino Jr.: Well, this is an equitable rule in itself. Because it allows something where an appeal time has expired, can you come in and show the circumstances, one, you were not notified, which obviously the court did. The other side's prejudiced--
Anthony M. Kennedy: Well it is an equitable rule conditioned upon compliance with time limits.
Paul Mancino Jr.: --Well, that's... that's once it's granted. It's not, the time limit is 180 days or the seven day after you received or became aware actual notice--
John G. Roberts, Jr.: No, but Justice Kennedy's point I think is critical. In other words, the drafters of the rule obviously wanted to provide a safety valve. But they also appreciated that you can't have it open-ended. So they did impose limits on the... if you want to call it equitable exception to the 30-day rule. And it seems to me that you sort of restrike the balance the drafters of the rule struck if you allow further equitable departures from their, their rule.
Paul Mancino Jr.: --Well, I think in past cases the Court has always recognized there are deadlines but there are exceptions to deadlines. And the most compelling exemption is where a court says do the act at this particular time. And you know, it's coming from a judicial officer, it's not coming from someone miscalculating on the calendar, calculating the time when it's 30 days run, when is 14 days run, when it's 10 days run in connection with the case. Because in civil litigation you are not given any specific time to do an act. Criminal cases are a little bit different. You are told about an appeal, when an appeal has to be filed in connection with a case. You do not have in civil, when you get your final order... you know you have 30 days to do it.
Antonin Scalia: Mr. Mancino, your position here is that this rule is not jurisdictional. Now, what... what are the consequences of that? I take it that that would mean that the court of appeals has no obligation to inquire on its own whether the matter has been filed too late?
Paul Mancino Jr.: Well, I believe--
Antonin Scalia: Right? If the parties don't make anything of it, the court of appeals can... can take a late, a late filing?
Paul Mancino Jr.: --Well, I think when the court of appeals does that, I think in all fairness, they should advise the parties in advance that they we're considering this on our own, that the appeal was out of time, and would you like to--
Antonin Scalia: No, no, but I'm asking whether a court of appeals has to even worry about that? If the parties don't make anything of it, the court of appeals can just assume it's okay and go ahead, right?
Paul Mancino Jr.: --Correct. Because I think they've waived any... the other side obviously has waived or forfeited any right to object to the... you know, to the--
Antonin Scalia: And you need an objection or else it's, it will be okay?
Paul Mancino Jr.: --I'm sorry?
Antonin Scalia: And you need an objection or else it will be all right?
Paul Mancino Jr.: Yes. The objection in this case came... you know, in the--
Ruth Bader Ginsburg: That means that a rule... that... 14 days is really a rule left to the discretion of the district judge. If the district judge feels like giving a little more, this would be no control, unless the opposing side objects; is that right?
Paul Mancino Jr.: --Well, I... I believe it does call for a timely objection by somebody to say something, rather than to just sit back and let it expire, knowing that someone did something that they should not do in connection with--
Antonin Scalia: Suppose you have problems at home. I don't know, you have an illness at home. And you ask counsel for the other side, you know, I know it's a 14-day limit, but would you give me 20 days? Right? And opposing counsel being as friendly as they are nowadays-- [Laughter] --the other, the other side would say sure, take 20 days. Okay? So you prepare a paper for signature by the judge and he signs off on it, gives you 20 days. That's okay then, right?
Paul Mancino Jr.: --Well I--
Antonin Scalia: Because the other side's agreed. He won't object on the court of appeals. And suddenly, suddenly, you've got 20 days even though the rule says 14.
Paul Mancino Jr.: --Well, there you have somewhat advance knowledge that you're doing something possibly contrary to a rule. But then you have the issue of once you do it, are you forfeiting your right to object and claim a deficiency in the process. Here you're only... what you're doing--
Anthony M. Kennedy: Well, I mean, that... that may, that may be true of this stage; but Justice Scalia's question points up the problem of what do we do if we write this case? How do we formulate this rule? And if we say that it's not jurisdictional, not binding, then going forward, it seems to me to allow the hypothetical that he puts to you.
Paul Mancino Jr.: --Well, I believe you can come up with all sorts of scenarios. What I think is the thing--
Anthony M. Kennedy: That's why we're wondering how to write the opinion. [Laughter]
Paul Mancino Jr.: --And where did the litigant reasonably rely upon an order of the court, which apparently the court had authority to issue, regardless of the court making a mistake or doing something intentionally--
John Paul Stevens: And the person who did the reliance was you, I guess?
Paul Mancino Jr.: --Yes, that's correct.
John Paul Stevens: And is it correct that... who... was this litigant represented by counsel during the period when he didn't get the notice of the September 9 order?
Paul Mancino Jr.: Yes. I filed the habeas petition. I did anything in connection with the case.
John Paul Stevens: So neither the, neither the prisoner nor you received any notice of the first goof up?
Paul Mancino Jr.: Well, the first... well, we received notice of the judgment on the merits. Then we filed a motion to alter judgment or for a new trial. It was not, the order overruling the motion to alter or amend judgment or the motion for a new trial date was not received. And the clerk's docket showed it wasn't mailed out.
John Paul Stevens: I see.
Paul Mancino Jr.: But in the, in that court, there was a transitioning to this electronic filing, which not everybody was set up at that particular time; so apparently the order may have only gone to... on the electronic filing system to those who were set up, and we were not set up on that thing. But the court still had the obligation to send it out. The court found that the clerk did not send it out. The clerk found that, or the court found that we did not have notification. And the court found that the other side is not prejudiced by any application.
John G. Roberts, Jr.: Would your... would your proposed exception, does it work the other way? I mean, let's say the district court entered this order and set a date certain for you to file the notice of appeal, and only gave you seven days on his count rather than 14, and you filed it on the ninth day, in other words within the 14 days given under the rule. Would you be out of luck because of what the district court set out in its order as what's binding, as opposed to what the rule says? Or could you rely on the fact the rule says you get 14 days?
Paul Mancino Jr.: Well I would believe you could then argue that the rule says that, the judge was wrong in... you know... in truncating your appeal time to file the appeal.
John G. Roberts, Jr.: Why wouldn't the same approach work the other way? The rule says 14 and the judge was wrong to give you more?
Paul Mancino Jr.: Well, because the exceptions to all of these time deadlines, you have cases from this Court where people untimely file a motion for a new trial. A new trial motion by rule has to be timely filed in order to toll your time. And there have been cases where the motion for new trial has been untimely filed. The other side didn't say anything. And then when the ruling is made, the appeal is filed within the appropriate time. And this Court has sanctioned that procedure in connection. I see no difference here, where a litigant before a court, the court issues an order, you look at the order. And you abide by the order in connection with the case. They do have a reasonable reliance in the case. And in looking back later on, in connection with the... the issue, in connection with the case.
Antonin Scalia: You know sometimes, sometimes district courts take jurisdiction over a case that they... that they shouldn't have jurisdiction over.
Paul Mancino Jr.: Well--
Antonin Scalia: And sometimes in reliance on that, you go through a whole trial and it comes up to the court of appeals and we say huh, there was no jurisdiction here; too bad.
Paul Mancino Jr.: --Well--
Antonin Scalia: Even though the court said it and you went through a whole trial in reliance on the district judge. District judges make mistakes.
Paul Mancino Jr.: --Well, that's a whole... I believe that's a whole different scenario than presented here. That goes to the subject matter--
Antonin Scalia: It's even worse, it seems to me. I mean, you've wasted weeks, you know, in trial and so forth.
Paul Mancino Jr.: --Right.
Antonin Scalia: But if it's jurisdictional, we have to say, you know, too bad. Yes, you were misled by the judge. In reliance on the district judge, you expended a lot of time and money, but there was no jurisdiction. And that's the end of the matter.
Paul Mancino Jr.: Well, the rule I always remember from law school is that parties cannot voluntarily confer jurisdiction on a court that does not have it. And the court, at any point, if they do not have subject matter jurisdiction, is free to dismiss the case whether it's at trial level, the appeal level, or whatever. This is not that situation. Obviously, the court by the rule could look into this matter. The court by the rule could grant relief in connection with this matter. It's a question whether the three days--
John Paul Stevens: I know I could find this out by looking at a calendar. Do you remember what day of the week February 24th was, or 26th?
Paul Mancino Jr.: --I believe--
John Paul Stevens: We don't have a weekend problem, do we?
Paul Mancino Jr.: --I believe it was not... I don't believe it was a weekend, no.
Anthony M. Kennedy: I looked at this. There's a time stamp. And I think it might be the time stamp when this document was entered on the ultimate appeal. But... but something you said at the outset prompts this question, that... Did you think that... the time runs from 14 days after the date when the district court's order is entered.
Paul Mancino Jr.: When it's entered. That's correct.
Anthony M. Kennedy: And was there a submission or an implication in your remarks that you thought that the order was not entered until three days later?
Paul Mancino Jr.: No.
Anthony M. Kennedy: Is there an entry... is there a time entry on the dock... on court's order?
Paul Mancino Jr.: No. It's a handwritten one that doesn't say anything--
Anthony M. Kennedy: I know that it's a handwritten one. But that that... that shows how long he has to appeal. is there a date when the order was put on the docket? Does that show on this sheet?
Paul Mancino Jr.: --No. There's nothing from the clerk indicating... on the docket there is, but nothing on the document that was sent, because the document only was sent... it was just handwritten over the... on top of the motion, so there was no way of telling when it was entered. Because you look back at the history of this case, when the court dismissed the original petition, the court had a date on it. It was only 18 days later that it was actually entered by the clerk, and of course that triggered the time for asking for reconsideration. So... but--
Stephen G. Breyer: What about the weekends? I mean, maybe the judge... I... it looks from my calendar... I wondered what day of the week it was. You don't remember. 2/10, February 10, 2004, what day of the week was it?
Paul Mancino Jr.: --That I cannot answer.
Stephen G. Breyer: It looks like it was the middle of the week. So maybe there were one or two weekends. So maybe what the judge's mistake was, he didn't know how to count the weekend rule.
Paul Mancino Jr.: Well, what I think was done--
Stephen G. Breyer: Which may not be jurisdictional, the weekend rule.
Paul Mancino Jr.: --What I believe is that this was sent out by mail. So they had, you know, the three-day mail rule, and that's how you came to the 14 days in connection with the... put in the 17-day limit on--
Antonin Scalia: Maybe Arabic numerals aren't jurisdictional either.
Stephen G. Breyer: They're not. A numeral is not jurisdictional. What's... what's... what's the three-day mail rule?
Paul Mancino Jr.: --Well, normally if you are allowed to do an act by mail, you have three days, you can serve a party and then you have three days to file with the court as part of the Civil Rules. I sort of think that's what the judge... because this was going out by mail... he probably didn't get... I wish I would have saved the envelope, but I don't have the envelope, but it probably didn't get to my office for three days anyway.
Stephen G. Breyer: Speaking of the three-day mail rule, maybe the judge's intent when he signed this was that it actually was entered, took effect as of three days later.
Paul Mancino Jr.: Well, there's really no... looking at the document, there's no way of telling that. That is correct. There's no way of telling that, and I believe that was probably the reasoning of the court that, you know, it took three days to get mail because you didn't get... it wasn't sent out last time, obviously you did not get the mail the last time, so he added the three days, and then you have the 14 days to, you know, perfect or file your notice of appeal to get it to the court in this case. So--
John G. Roberts, Jr.: All of that might have... all those things might have been going on in the judge's mind, but you don't contest that the 14-day period was not complied with? You don't have an argument that you complied with the 14-day period?
Paul Mancino Jr.: --No, I do not. We're relying to the exceptions, and there's a number exceptions on deadlines that have come out. We have the equitable tolling, we have the waiver, forfeiture issue. And, you know, in this case, specific assurance by a court which in a past opinion seemed to control the date, where a judge gave you a specific assurance that you could do something in connection with the case. The old Harris Truck case is where the lawyer was on vacation. The judge said well, I'll give you some extra time. Even though they knew of the judgment, they knew the time would run, he said I'll give you extra time to file the appeal because you want to contact the lawyer who was on vacation. The court of appeals then said well, the rule didn't apply because you knew of the order, so... but that was overlooked even though by time calculation, everybody was out of time. The Eberhart case, they were out of time because the motion for new trial was filed untimely, which under the rule required a timely filing of a motion for a new trial in order to toll your appeal time. So this, obviously the motion to reopen was timely filed, was filed within the 180 days required by the rule. The other side was served. The other side had no objection to it and didn't oppose it. The real issue when you look at an equitable... sort of an equitable rule like this, is the other side prejudiced, and obviously they are not prejudiced.
John G. Roberts, Jr.: One of the things I think the drafters of the rule wanted to assure is that there would be a point at which the prevailing party in the district court could know with certainty there wasn't going to be further proceedings in the case, and that's the purpose of the 180-day period and all that. It's not open-ended. Under your rule where the actual time for filing could be at some indefinite point, they'd never really quite have that assurance, would they?
Paul Mancino Jr.: Well, unless the court specifically granted to the litigant a specific period of time, and you know, normally litigants and lawyers do not ignore what the court says. At least I think as, you know, anyone... if this court said that, you have a right to reasonably rely on what the court said. And it certainly wasn't an unreasonable period of time that the court was giving in the case. It wasn't--
John G. Roberts, Jr.: Well, what would be an unreasonable period of time if the two or three days is not? Would another 10 days?
Paul Mancino Jr.: --Well, if you go back to the rules, you're going into the six months, 180 days, and then, you know, you would say something. Or if the court, you know, gave you a year or something by mistake, you know, it would... you know, that something does not sound right here. And then you would look at it. At least if that were the case, you could probably go in and get the court to reconsider, bring it to the attention of the court. Your Honor, we did not have all of this time. Did you make a mistake? You can always correct mistakes. But that was not done here, it was not done by the respondent in this case because they didn't... the respondent did not object to the application to reopen the appeal, did not say anything--
Ruth Bader Ginsburg: But the respondent said he had no reason at that time to believe that you wouldn't follow the rule and file within the 14 days. So if they made an objection, the moment the judge put down a date that's 17 days later, the judge might say that's premature.
Paul Mancino Jr.: --Well then, the judge may have said well, I don't... look at the rule. I don't have it. I'm going to redraft the order, vacate my order and put a proper order on in connection with the case. It would seem to me that at some point in the appellate process, because when you look at the history that the Sixth Circuit in this case... at least when the court then granted a certificate of appealability, you would think the respondent would... what are... why are you granting a certificate of appealability when you told us we have no jurisdiction over this case, or at least from the two orders anyway, they said they had jurisdiction over the February 10th order that... on the appeal. And the... then the certificate of appealability was denied, and normally that would end the case. The court granted the... my motion for reconsideration, and then granted certain issues that could be briefed on the merits. But once the court granted the certificate of appealability, it seemed to me that the other side, well, what is happening here?
David H. Souter: Mr. Mancino, I take it that what you are really proposing is sort of a rule that if... if counsel could reasonably be misled to overlook the mistake by the court, that your reliance upon the court's mistake should... should, in fact, be respected. It's kind of a rule of reasonably misleading; is that about right?
Paul Mancino Jr.: I believe so.
David H. Souter: I mean, that's how we distinguish your case on your view from the case in which you get 180 days instead of 14?
Paul Mancino Jr.: Right. Sort of, you know, reasonably reliant, is it fair.
John G. Roberts, Jr.: You think we should have a rule of reason rather than a per se rule. [Laughter]
Paul Mancino Jr.: That's the prior case, because they made that.
John Paul Stevens: Let me ask this question: Is the order on page 151 of the joint appendix, just those three lines, that's the entire order that the judge entered? It just says granted, and motion--
Paul Mancino Jr.: That is what's handwritten on the original documents. That's it.
John Paul Stevens: --He did not make the findings that the rule requires?
Paul Mancino Jr.: No. But presumably you would assume that those findings are subsumed within the rule because the judge found in our favor. The judge denied the motion to vacate part of it but granted the reopening to vacate, and of course on the--
John Paul Stevens: Because the motion requires--
Paul Mancino Jr.: --motion to vacate, you have 30 days to appeal.
John Paul Stevens: --The rule requires that he make three specific findings which he did not make.
Paul Mancino Jr.: He did not make it, but you assume that the judge did by granting the motion, and nobody else said anything about it anyway. I reserve the time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Marshall?
William P. Marshall: Mr. Chief Justice, and may it please the Court: The petitioner's failure to meet the 14-day statutory deadline for filing his notice of appeal is fatal to his case for three reasons. First, the 14-day period is mandatory and jurisdictional, and Federal district courts do not have the power to enlarge this time period. Second, the 14-day rule was not forfeited by the state of Ohio and may be raised by the court sua sponte in any event. Third, even if there could be some sort of limited equitable exception to the 14-day time requirement, the petitioner here falls far short of demonstrating why he is entitled to such extraordinary relief. Let me explain why. The petitioner's claim that notice of appeal time requirements are not jurisdictional contradicts 150 years of practice, countless lower court decisions, settled congressional understanding as to the meaning of its governing--
Ruth Bader Ginsburg: What type of jurisdiction are you speaking of? It's certainly not Federal jurisdiction in the sense of subject matter jurisdiction, like a specific case arising under Federal law. What kind of jurisdiction do you have in mind?
William P. Marshall: --Your Honor, I think it is its own form of subject matter jurisdiction in the same way that final judgments on appeals are subject matter jurisdiction. And the reason why is that notice of appeals are classically jurisdictional in that sense, in that they transfer the locus of the case from one court to another. In the appellate system, there's actually a changing of the jurisdiction, and the notice of appeal is that triggering mechanism. And in that sense, it is classically jurisdictional and different from the other kinds of time limits that this Court addressed in Kontrick, in versus Eberhart because those took place within a particular court system, the district court system, where here there was a transfer of jurisdiction triggered by the notice of appeal from one court to the other.
Samuel A. Alito, Jr.: Isn't that just a word game? It's jurisdictional because it transfers jurisdiction from one court to the other. Why should that be... why does that make it jurisdictional?
William P. Marshall: Well, I think, Your Honor, the same way that final judgments are. I mean, final judgments are a jurisdictional prerequisite to transfer from one case to another. The second reason, Your Honor, by the way, is congressional, is the congressional reenactment of the notice of appeal time deadlines, which also indicates that Congress treats these--
Samuel A. Alito, Jr.: Can you think of anything that's enacted by Congress as jurisdictional?
William P. Marshall: --No, Your Honor, but when there is a background, as there is in this case, of 150 years of practice where Congress has enacted against that background, it is presumed to be jurisdictional. And I'd also point out that with respect to this Court's jurisdiction, the Court has treated petitions for certiorari as jurisdictional in civil cases because there is a statutory underpinning, but has not treated them as jurisdictional in criminal cases in part because there is not a statutory underpinning.
Samuel A. Alito, Jr.: Doesn't the latter suggest that a rule that concerns the transfer of a case from one court to another is not necessarily jurisdictional?
William P. Marshall: Your Honor, I think the latter recognizes the fact that it doesn't necessarily have to be. That is correct. However, that Congress and this Court can treat such a thing because it is in a... because it is a... because it does transfer the case from one to another. I think that the criminal... that in the certiorari case, with respect to criminal, it might be an indication there that there might be some relation. But I would also suggest that with respect to certiorari practice, you've already... you're already in the appellate mode and you're not dividing the jurisdiction between trial courts and appellate courts. But the quick answer is yes, Your Honor, I don't think it has to be jurisdictional, but certainly it can be jurisdictional. And for 150 years, this Court and Congress has treated this particular division as jurisdictional.
Samuel A. Alito, Jr.: Well, it seems to me that's what we're back to, that it's long been treated as jurisdictional. But you just said that it's not sufficient that it's been enacted by Congress and it's not sufficient that it transfers the case from one court to another. So we're back just to history, right?
William P. Marshall: Well, Your Honor, it's more than just history, because I think Congress reenacting 2107 against this background for 150 years, that this issue has been treated as jurisdictional, puts Congress behind this as well. But here it's also, 150 years is not a matter of--
Ruth Bader Ginsburg: The provision of, is it 2107?
William P. Marshall: --Yes, Your Honor.
Ruth Bader Ginsburg: Where does that appear in the judicial code? Does it appear under the provisions concerning jurisdiction?
William P. Marshall: No, Your Honor. 2107 does not itself mention jurisdiction. However, that is also true with 2101 in respect to this Court's certiorari jurisdiction in civil cases. The word jurisdiction is not mentioned specifically but it--
Ruth Bader Ginsburg: But it is under the heading procedure, court procedure, right?
William P. Marshall: --It's time for appeal to court to proceed.
Ruth Bader Ginsburg: Yes, but that's under a chapter that deals with procedures, as opposed to jurisdiction.
William P. Marshall: Yes, Your Honor. But this Court in Barnhart suggested that in determining whether something is jurisdictional or not, one looks at the context of the particular location. Here this Rule 21... excuse me. Here this statute, 2107, has been enacted and reenacted against the background of this Court consistently saying it's jurisdictional and treating this rule as jurisdictional, and that's since cases as far along as Edmondson.
Ruth Bader Ginsburg: You know there have been a spate of cases that said the word "jurisdiction" has been vastly overused, it's a word of many meanings. And you are telling me that the meaning of these statutes is subject matter jurisdiction, just like it's diversity, is there a federal question?
William P. Marshall: Yes, Your Honor, in the same way that amount in controversies are also subject matter.
Ruth Bader Ginsburg: But amount in controversy is in 1332. Congress putting it right there together. It says diversity of citizenship plus amount in controversy, all in 1332. Here the limit appears in a statute that deals with procedure, not jurisdiction.
William P. Marshall: Yes, Your Honor. But that statute has been enacted against, as I keep reemphasizing, 150 years of practice, including the Edmondson case in 1869, where the Court on its own motion raised the matter as being jurisdictional and because the time period had not been complied with dismissed the appeal. The question essentially isn't whether we're going to call it jurisdictional or not. The question is the effect of the particular rule. Some of the lower courts call its indications of jurisdiction or a prerequisite to jurisdiction. The question is what the treatment of this particular requirement is and the treatment of this particular requirement consistently for over 150 years has been that it is mandatory, jurisdictional, non-forfeitable, it can be raised by the court sua sponte.
Antonin Scalia: What characteristics are you asserting follow from calling it jurisdictional in this case?
William P. Marshall: Your Honor, the--
Antonin Scalia: Number one, it can't be waived, right?
William P. Marshall: --That's correct.
Antonin Scalia: Number two--
William P. Marshall: It's non-forfeitable.
Antonin Scalia: --The court of appeals has to inquire on its own, right?
William P. Marshall: Yes, Your Honor.
Antonin Scalia: Anything else?
William P. Marshall: Yes, Your Honor. There's no equitable exception to it. There is no equitable exception to it as well if it's jurisdictional. So all of those three attach to the term "jurisdictional". But I also think they could equally attach to the notion that, even if we don't want to call it jurisdictional, if we don't view it as fitting easily within this category of subject matter jurisdiction.
Antonin Scalia: Except at least as to the second, at least as to the second, I don't know of any matter that a court has to inquire into sua sponte which is not jurisdictional. That's the one of the three characteristics that I think we have always attached the word "jurisdictional" to, I think.
William P. Marshall: Well, Your Honor, in Day versus McDonough in dealing with a habeas, with a habeas statute of limitations, this Court approved the court of appeals raising that issue sua sponte, although they... although in that case the Court--
Antonin Scalia: It may.
William P. Marshall: --It may.
Antonin Scalia: But not must.
William P. Marshall: Yes, Your Honor.
Antonin Scalia: Not must. And truly with things we have called jurisdictional, you must, right?
William P. Marshall: Yes, Your Honor. However, if the lower courts wanted to play with the language a little bit and call it necessary for the invocation of jurisdiction or a prerequisite--
Antonin Scalia: We could call it "quasi-jurisdictional". You wouldn't object to that?
William P. Marshall: --No, Your Honor. As Shakespeare might say, it's not the name. We are interested in the effect, and the effect here has been traditionally enforced over 150 years of court practice.
David H. Souter: Well, what do you think is the--
Ruth Bader Ginsburg: How far do you take it? Suppose this slip is not noticed in the court of appeals, and then there's a petition for cert, and some clever law clerk notices that the notice of appeal was filed in 16 days instead of in 14 days. Would the court then have to dismiss for want of jurisdiction?
William P. Marshall: Yes, Your Honor. I think it applies in the same way that lack of diversity would apply or lack of a Federal question could apply, as in the Mottley case. Even if it was in front of this Court, if it was recognized in front of this Court, at that time it would... it must be dismissed.
David H. Souter: Let's take it a step further. Let's assume it isn't recognized. Assume he gets his habeas relief, and three years later some eager beaver is culling through the records and says, this guy never should have been in court. Do they rearrest him and put him into prison?
William P. Marshall: Your Honor, collateral attacks for lack of subject matter jurisdiction are not normally sustained, if that's what the... if I understand your question correctly. So that, for example, in a diversity case, if two years or three years after it proceeds to final judgment somebody realizes that both parties were from the same State, the collateral attack would normally not allow to change that, to change that result. And I would think that the same thing would happen here. If the case had proceeded to final judgment, if there were an error of this type, as with other types of errors in subject matter jurisdiction, there would not be an opening for collateral attack.
Stephen G. Breyer: What about something here I hadn't run across, called the unique circumstances doctrine. This Court in Osterneck said this: Where a party has performed a act which if properly done would postpone the deadline for filing his appeal... and indeed that's what happened here; he postponed the deadline for filing his appeal... and has received specific assurance by a judicial officer that this act has been properly done... and here he did receive specific assurance by a judicial officer that the act was properly done... in those circumstances, you can make a little exception in the interests of justice.
William P. Marshall: Well, Your Honor, the unique circumstances doctrine doesn't apply here because there wasn't an act which if requested could have been properly done.
Stephen G. Breyer: Yes, yes, the act was that he filed a motion to reopen, which motion to reopen postponed the time of appeal. And two things have to happen with that act. One is you have to get the district judge to agree; and second, you have to file the paper. So that's the act which if properly done would, in fact, have led to the appeal.
William P. Marshall: Your Honor, I think that--
Stephen G. Breyer: I agree there were two parts to it or two acts, if you want.
William P. Marshall: --But, Justice Breyer, in this case I think that what would have had to happen is that the Petitioner would have had to move for 17 days in order for the act to be properly done. He moved for 14 days.
Ruth Bader Ginsburg: I thought what we were talking about was that if the order had said 14 days instead of 17, then the act would have been properly done. That is, the only reason that... the 16 days, according to Mr. Mancino the only reason he took 16 days was the judge authorized that. If the judge hadn't authorized that, the rule wouldn't have been discarded and he would have filed in 14 days.
William P. Marshall: Well, Your Honor, the judge... our argument is in part that the judge had no power to authorize it. If I understand your question, with respect to the unique circumstances doctrine, this doesn't fit in because in the unique circumstances doctrine the litigant actually has to seek a particular type of relief and get granted that relief. The Petitioner here did not seek leave to file his motion of appeal within 17 days. The Petitioner here sought, which is the only thing he could do under the rules, is seek to reopen for 14 days.
John G. Roberts, Jr.: So he hasn't received, just quoting from Osterneck, he hasn't received assurance that the act has been properly done?
William P. Marshall: That's right.
John G. Roberts, Jr.: In other words, if he came back and said, was my notice of appeal timely or something, and the judge at that point ruled, then it might come under that provision. But this is just... prospectively, he could have filed this timely even after the judge issued the order. In other words, he could have filed it on the 14th day. He didn't have to wait until the 17th day.
William P. Marshall: That's correct, Your Honor.
Stephen G. Breyer: Why does that matter? I mean, also Osterneck I happened to guess involved a case that took place on Tuesday. This case took place on Thursday. I mean, I grant you the language literally you could say doesn't quite fit it, but so what? The purpose of this Osterneck I take it is to have a very narrow exception where a judge tells you basically what to do, and you follow what the judge said, and then, lo and behold, they hit you with this jurisdictional thing and you didn't get it right. Now, that seems to be its purpose, and the language is very close, so why not follow it?
William P. Marshall: Your Honor, the purpose of the unique circumstances doctrine is not to give a license to litigants to rely on district court errors.
John G. Roberts, Jr.: That would be the very narrow circumstances doctrine, not the unique circumstances doctrine. [Laughter]
Stephen G. Breyer: I notice the court applied it twice, so it couldn't quite be the unique circumstances.
William P. Marshall: That's right, Your Honor.
John Paul Stevens: May I ask this question. Supposing there was a dispute as to whether the order had been entered on February 10 or February 12. Say his handwriting was illegible. Would that be a dispute that would remain open throughout the appellate process?
William P. Marshall: Your Honor, the question is when the clerk of court would have entered for the entry of judgment.
John Paul Stevens: If he'd entered this order on February 12 or 13... I forget which day it was... the appeal would have been timely?
William P. Marshall: That's correct, Your Honor.
John Paul Stevens: And I'm just... and the order was defective because it didn't make findings required by the rule. And I'm just wondering, supposing it was ambiguous as to the date it was actually entered. Would the party then be entitled to rely on the date, February 27th, set in the order, or would he have a duty to investigate and find out exactly when the judge signed the order?
William P. Marshall: I think the key question, Your Honor, I think is when the... when the order is entered into the docket, which is done by the clerk of court. I think that is the triggering time.
John Paul Stevens: My question is what if that's somewhat ambiguous? A busy court, he handed it to the clerk and the clerk didn't enter it into the docket. You're not sure, there's a fact dispute about that.
William P. Marshall: Your Honor, that's a different case. The beginning time period is a beginning case, if there was some ambiguity there.
John Paul Stevens: I understand. I'm just wondering what your view is, how should courts resolve that kind of dispute? Should that be a dispute that remains open throughout the appellate process/There's a factual dispute as to when the judge signed order.
William P. Marshall: Yes, Your Honor. Again, the factual dispute is when the--
John Paul Stevens: If he had written here, instead of 2-10> ["], he had written down 2-12> ["], then the prosecutor 3 days later realized he had written down the wrong date, would that have made the appeal untimely?
William P. Marshall: --Your Honor, I think the question at that point is what is the time period entered into the formal docket, and what is the actual judgment.
John Paul Stevens: And that's ambiguous, I'm saying. That's ambiguous.
William P. Marshall: If for some reason the court records are jumbled for some reason or another and nobody can determine when that entry of order is, that's a different case.
John Paul Stevens: In that case, you then rely on the February 27 date in the order? Then it must be permissible to rely on appeal to be filed by 2-27? In such a case it would be okay.
William P. Marshall: Again, Your Honor, the critical thing with the rule period is the time period from the entry of judgment.
John Paul Stevens: I know, and I say it's hard to figure out when the order was actually written down in the docket.
William P. Marshall: I think that the question that would be required then was for whoever was filing the notice of appeal to determine when the entry of the docket is. If that's ambiguous, I think it's obligatory on the litigant to err on the side of caution, Your Honor.
John Paul Stevens: And not rely on the 2-27 date.
William P. Marshall: I would certainly suggest that a litigant argue on... err on the side of caution if at all.
Ruth Bader Ginsburg: Justice Breyer quoted from the Osterneck case. There was another statement of the rule which goes like this: There is a sharply honed exception covering cases in which the trial judge has misled a party who could have and probably would have taken timely action as a trial judge conveyed correct rather than incorrect information. This case fits right into that description, doesn't it?
William P. Marshall: No, Your Honor. The case that they're citing to is Thompson, and in Thompson what occurred in that case is that the litigant in that case--
Ruth Bader Ginsburg: --The case that I'm reading from is the concurring opinion in Carlisle against United States. It does cite Thompson.
William P. Marshall: Thompson is the case, Thompson... this Court has not relied on the unique circumstances doctrine in 40 years. Buy in Thompson what occurred was the Petitioner requested a new trial untimely, but was told by the court that they had timely requested a new trial. Because they were informed that they were entitled to a new trial, they did not do something else, which was file the notice of appeal. So the court basically sent them down the wrong avenue. Here there was no wrong avenue that the court... that the litigant was being sent down.
Ruth Bader Ginsburg: But they would have filed that notice of appeal earlier if the judge had said, your motion for a new trial is untimely. It seems to me the same as in this case. The judge said: Your motion is timely, so you're going to have the trigger so much later. Fine. If the judge had said, your motion is untimely and you know you've got to get your notice of appeal in sooner rather than later. Similarly, here the judge said, well, you've got until 17 days later. If the judge had done right and said the 14-day period, then surely Mr. Mancino would have filed within that period.
William P. Marshall: But, Your Honor, there is nothing that the court did that prevented the litigant here from filing on time. There was nothing that would have prevented the litigation here from filing within the 14-day period. And when--
Ruth Bader Ginsburg: There was nothing in Thompson that prevented filing the notice of appeal.
William P. Marshall: --Except in Thompson, Your Honor, he was told that he had the right to proceed on a motion for new trial. If he had... Your Honor, I see that my time is up.
John G. Roberts, Jr.: You can finish your answer.
William P. Marshall: In Thompson, Your Honor, the difference is that... that the litigant was sent down a different road which was inconsistent with his filing a notice of appeal. Here there is nothing inconsistent about filing a notice within 14 days as opposed to 17 days.
John G. Roberts, Jr.: Thank you, Mr. Marshall.
William P. Marshall: Thank you, Your Honor.
John G. Roberts, Jr.: We'll hear from Mr. Stewart.
Malcolm L. Stewart: Thank you Mr. Chief Justice and may it please the Court. For four basic reasons the deadline for filing a notice of appeal in a civil case should be treated as jurisdictional and therefore as nonwaivable. First, the time limit sent forth in Section 2107 directly implicates the concerns that underlie the special treatment of jurisdictional issues. It's a fundamental precept of our legal system that Federal courts should take special care to avoid adjudicating cases where Congress has not authorized them to do so. Or to put it another way, our legal system has presupposed that the unauthorized exercise of jurisdiction is an error different in kind from the misapplication of law in cases that a court is authorized to adjudicate.
Ruth Bader Ginsburg: Mr. Stewart, do you think this is subject... that question is subject matter jurisdiction?
Malcolm L. Stewart: We would... we would characterize it as a species of appellate jurisdiction. That is, this Court has often said that it's the fundamental duty of this Court when doubt is... when doubt is apparent, to inquire into its own jurisdiction and that of the court from which the record comes. And that division presupposes that there are cases over which the lower court had subject matter jurisdiction, over which this Court would not have appellate jurisdiction. For example, situations sometimes arise, particularly in cases that are adjudicated by three-judge district courts, in which there is a dispute as to whether a particular district court order is directly appealable to this Court or should go instead to the court of appeals. And if somebody comes to this Court and this Court determines that the appeal should have gone to the court of appeals instead, the error is characterized as one of appellate jurisdiction. This Court lacks jurisdiction to review the ruling even though there's nothing to suggest that the case as a whole fell outside the subject matter jurisdiction of the district court.
John Paul Stevens: Mr. Stewart, that's one those interesting examples. We lack jurisdiction of the case but we have power to order it refiled, to vacate the order and have it refiled, don't we?
Malcolm L. Stewart: That is an anomaly. The Court has said on occasion that because it lacks appellate jurisdiction it has no power to do anything with the case except to vacate the order. And I think that's a court that I'm not going to try to explain. [Laughter] But I think Mr. Marshall has identified the second example, namely the final decision requirement of 28 U.S.C. 1291. That is, that's universally conceded to be a jurisdictional rule, even though it has nothing to do with whether the district court had subject matter jurisdiction over the case. It is simply whether this particular decision over... for which review is sought falls within the appellate jurisdiction of the court of appeals. And our point--
David H. Souter: Mr. Stewart, should we repudiate the unique circumstances doctrine?
Malcolm L. Stewart: --I don't think you need to... I think you should repudiate any conception that Federal courts have freewheeling authority to excuse noncompliance with statutory time limits for taking appeals.
David H. Souter: Well, the unique circumstances doctrine is one circumstance in which courts, say yeah, you can excuse it.
Malcolm L. Stewart: Well, I... I think actually both Harris and Thompson are explicable on other grounds. And may even be correct in more limited ways. For example, Harris--
David H. Souter: But on the grounds for which they have been taken as authority, is it your view that we should repudiate those grounds?
Malcolm L. Stewart: --Yes. With respect to civil cases for which the time for taking an appeal is specified by statute, it's our view to the extent that Harris and Thompson would otherwise support the proposition that district courts may excuse noncompliance with the time limits, those cases should be repudiated.
Stephen G. Breyer: Well... in criminal.
Malcolm L. Stewart: In criminal cases the time for taking an appeal is not specified by statute. It's imposed by Federal Rule of Appellate Procedure 4(b). But there's no statutory basis for it. There was up until 1988 a provision of Title 18 of the U.S. Code, Section 3772, that specifically authorized this Court to promulgate rules that would establish the time for filing a notice of appeal--
Stephen G. Breyer: But in... though of course, you'd have to confine it very narrowly, I take that doctrine, if there weren't a statute, you read it into the rule. So there is a statute and you read the statute as saying well there could be very some very narrow circumstances that Congress would have been willing to make an exception. For example it is a couple of days and the judge tells you, "do it" or lets you do it. It's roughly the same thing, isn't it?
Malcolm L. Stewart: --Well I think it makes a fundamental difference that there is a statute in place. And certainly with respect to circuit certiorari petitions coming from the court of appeals to this Court, this Court has recognized that distinction to be fundamental.
John G. Roberts, Jr.: You're sure habeas cases are classified for this purpose as civil rather than criminal?
Malcolm L. Stewart: Yes, there's no... no dispute about that. And indeed if the... if this case were classified as civil for purposes of... I mean, as criminal for purposes of the time limit for taking an appeal, it would have been far out of time under Federal Rule of Appellate Procedure 4(b). Indeed the authority of the district court to have granted the reopening period 180 days later wouldn't have been present in the criminal context.
John G. Roberts, Jr.: Looking at the rule, it does require these findings. Has that been interpreted to require that they be written on the record or is that simply something that's supposed to guide the district court?
Malcolm L. Stewart: I think the courts of appeals have not required that they be written on the record but have required that there be a basis appearing in the record for those findings. So, for instance, if Petitioner's counsel had filed a document asking to reopen in the time, but had not represented that he had not been informed of the judgment, then I think that if the court had granted the reopening, that could be set aside on appeal on the ground that there was no support in the record for such a finding. But I don't believe the courts of appeals have required there be explicit findings as opposed to findings that are implicit in the grant of the reopening. The point I was going to make about the certiorari petitions is that this Court's Rule 13.1 imposes a 90-day limit for filing a cert petition in all cases. It is not divided between civil and criminal. But this Court has recognized that the 90-day limit has a very different status is criminal cases than in civil cases. That is Rule 13.2 of the rules of this Court states that when a cert petition is jurisdictionally out of time, the clerk is directed not to file it. And Rule 13.2 cites 28 U.S.C. 21.01(c). So the clear implication is that the Court recognizes the time limit imposed by statute in civil cases to be a jurisdictional limit. And the crucial point of Rule 13.2 is not simply that it uses the word jurisdictionally. It's that it gives an instruction to the clerk not to file the petition regardless of whether any other party objects. It's the very type of thing that a court will do as to matters of its jurisdiction, as to matters over which it has an obligation to take cognizance, regardless of the other party's objection. In criminal cases by contrast the 90-day rule applies under the rules, but the Court has recognized that it retains the authority to grant petitions that are untimely filed even in cases where the other party objects. The other thing I would say about 2107(a) and it's... part of it is reprinted at page 16 of the Government's brief. In the last full paragraph of page 16, it says, the basic time limit for appeals in civil cases is set by 28 U.S.C. 2107(a), which states that... and then the part we haven't reproduced says except as otherwise provided in this section. And then it goes on to say no appeal shall bring any judgment order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed within 30 days. And the significance of this provision, this language, is it doesn't simply say a notice of appeal must be filed within 30 days. Language like that would conceivably leave open the question of what happens if the notice of appeal is untimely filed. This language actually says if a notice of appeal is not filed within 30 days, the appeal will not bring the judgment--
John Paul Stevens: But it begins with the exception as provided in subparagraph (c).
Malcolm L. Stewart: --That's correct. So we're not saying that the 30-day limit is absolute--
John Paul Stevens: Yeah.
Malcolm L. Stewart: --but we're saying that the rule specifies that if the various time restrictions are not complied with, the appeal will not bring... I'm sorry, the appeal shall not bring the judgment, order, or decree before the court of appeals. This is specifically framed as a limitation on the authority of the reviewing court.
Stephen G. Breyer: What do you think, if we did go to Thompson and looked at that, this would be a fortiori from Thompson, as described in Osterneck, was a case in which the judge simply said from the bench look, your... your... the new trial motion is timely, though it wasn't; it was out of by two days. While here, we have a formal court order, it is a formal order entered with a... you know, stamp of the judge, and it says you have till the 27th to file.
Malcolm L. Stewart: Well, are two things we would say about Thompson. The first is that as this Court explained in its recent decision in Hibbs versus Winn, it's long been recognized that a timely motion for reconsideration will suspend the finality of the judgment and toll the time for taking an appeal. And the Court in Hibbs versus Winn further explained that under certain circumstances, even an untimely motion for reconsideration will have that effect, if the judge appropriately considers it on the merits. And Thompson can be explained as holding simply that where the Government does not object and the district court evinces an intent to treat the motion as timely and consider it on the merits, it will suspend the finality of the judgment I don't think Thompson has to read... has to be read to stand for a broader equitable principle. The other thing I'd say about Thompson is that for better or for worse, the Government's brief in opposition in Thompson, and the case was decided on the cert papers, didn't cite 28 U.S.C. 2107; it relied exclusively on the time limit that was stated in the Federal Rule of Appellate Procedure. Therefore the Court in Thompson was not required to grapple with congressionally imposed limits.
John G. Roberts, Jr.: Thank you, Mr. Stewart. Mr. Mancino, you have four minutes remaining.
Paul Mancino Jr.: If this were a case where someone just missed the 30-day deadline, I don't think we would be talking. We are talking about a case where a judge properly found, properly ruled that notice was not given and had the authority to reopen the case. And we talk about mandatory and jurisdiction of the case. All that were involved in this case is how is the case moved from one court to another. And the... was it moved properly in this case? The unique circumstances, I think you cannot find a more compelling case for unique circumstances. Did the party rely upon the court? Here you have a handwritten notation from the court, signed by the judge--
John Paul Stevens: Mr. Mancino, does the record tell us how you got notice of that order?
Paul Mancino Jr.: --No, it doesn't. But I mean, I did get notice of it. It came in the mail, but it doesn't--
John Paul Stevens: You, you got that order in the mail?
Paul Mancino Jr.: --In the mail, correct. And that's why I believe the three days was added, thinking of the mail rule that we have three additional days to do it in connection with the case. And that's how I believe the, how the 17 days came up.
Anthony M. Kennedy: And I asked this once before: Did the document you received show the dates that it was entered on the docket, so you knew when the 14 days was running from?
Paul Mancino Jr.: No, the only information it had was the printed... the printed date by the judge. Did not show it was entered that same day.
Stephen G. Breyer: Yeah, but in the... in this thing, it says entered on February 10.
Paul Mancino Jr.: Yeah, that's correct. The docket does show that.
John Paul Stevens: But how did you find out it had been entered on February 10? Because you did know that at the time you filed your notice of appeal.
Paul Mancino Jr.: Well, I just went off what the date on the... the handwritten date on the pleading we received from the court. It said February 10, so we just put it in there. Didn't go to the actual docket to see if, in fact, it was entered. As you can see, orders were not... in this case were not entered on date that the judge signified anyway.
Ruth Bader Ginsburg: This is, this is all at the top of page 151 of the joint appendix, right? That's the that entire thing.
Paul Mancino Jr.: That is the... well, it is printed on that. But I mean, if you look at the original document--
Ruth Bader Ginsburg: Yes. It was handwritten--
Paul Mancino Jr.: --It's a handwritten... handwritten by the judge in, in the case. So--
Anthony M. Kennedy: But it says when it was signed by the judge. It doesn't say when it was entered on the docket, when it was entered by the clerk.
Paul Mancino Jr.: --No. It says when the judge signed it. That's correct.
Stephen G. Breyer: But it says it in the index, it says... it says docket entries. 2-10, it says entered 2-10, on page 11. On page 11.
Paul Mancino Jr.: Yeah, that's correct. But that's from the docket--
Stephen G. Breyer: Received. So--
Paul Mancino Jr.: --But the document we received from the Court just has... you know... the handwritten notation on it, file your appeal by--
Samuel A. Alito, Jr.: What would you, what would you have had to have done to find out when it was entered on the docket? Could you have accessed that electronically? Or would you have to go to the court, to--
Paul Mancino Jr.: --Well, probably I could not have... at that time, I mean I could do it now, but at that time you'd have to go over to the courthouse, just like we walked on orders of appeal over to the courthouse, had it stamped by the clerk there, and figured that was the end of it and we were on our way to the Sixth Circuit in Cincinnati. Thanks.
John G. Roberts, Jr.: Thank you, Mr. Mancino. The case is submitted.