964 F.3d 1190
D.C. Cir.2020Background
- Plaintiffs (parents of three U.S. servicemembers killed in a 2011 helicopter shootdown) sued foreign actors including Iran and former Afghan President Hamid Karzai; service on Karzai proved difficult.
- Plaintiffs attempted multiple service methods: FSIA methods for states, Rule 4(f) mail, service on a Palace official (Kakar), publication, and an unsolicited Twitter mention that linked to the summons.
- The district court denied service by Twitter (and declined to allow Twitter-only service) as not reasonably calculated to give Karzai notice and also denied previous informal attempts to perfect service.
- Plaintiffs asked the district court to certify the Twitter-service order for interlocutory appeal under 28 U.S.C. § 1292(b); the court certified the order but plaintiffs missed the statute’s ten-day petition period.
- The district court then recertified the same order; plaintiffs filed a petition for permission to appeal and a notice of appeal within ten days of the recertification.
- The D.C. Circuit held that a district court may not use recertification to restart § 1292(b)’s jurisdictional ten-day filing period and dismissed the petition and related appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district court may restart § 1292(b)’s ten-day filing period by recertifying an order | Recertification effectively restarts the clock; Baldwin County supports allowing recertification to revive appealability | § 1292(b)’s ten-day limit is jurisdictional; Congress did not authorize extensions or revival by recertification | A district court cannot restart § 1292(b)’s ten-day filing period by recertifying; untimely petition requires dismissal |
| Whether Baldwin County permits revival of interlocutory jurisdiction post-deadline | Baldwin County implicitly approves recertification to permit otherwise time-barred interlocutory appeals | Baldwin County is not controlling; its majority opinion is silent on recertification and the dissent is not binding | Baldwin County’s silence/dissent does not control; the court declines to treat it as authorizing recertification |
| Whether equitable relief (tolling/excusable neglect) can justify accepting a tardy § 1292(b) petition | Equity should allow relief for brief delays and inadvertence | Bowles and subsequent precedent prohibit equitable exceptions to jurisdictional filing limits | Equitable doctrines cannot be used to circumvent a jurisdictional statutory deadline post-Bowles |
| Whether a materially revised or substantively changed reissued order could restart the clock | (Plaintiffs suggested recertification might suffice) | Court: only substantive revisions might justify a new filing period; mere recertification that leaves status quo unchanged does not | Court dismisses the appeal here and reserves whether a materially revised order could restart the clock; recertification that does not change substance does not restart time |
Key Cases Cited
- Bowles v. Russell, 551 U.S. 205 (2007) (statutory filing deadlines for appeals are jurisdictional and not subject to equitable extension)
- Groves v. United States, 941 F.3d 315 (7th Cir. 2019) (post-Bowles decision holding recertification cannot restart § 1292(b) clock; persuasive authority)
- Carr Park, Inc. v. Tesfaye, 229 F.3d 1192 (D.C. Cir. 2000) (§ 1292(b) ten-day filing period is jurisdictional)
- Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984) (Supreme Court decision whose majority opinion is silent on recertification; dissent argued for revival but is not binding)
- Minneapolis-Honeywell Regulator Co. v. United States, 344 U.S. 206 (1952) (reentry or immaterial revision of a judgment does not toll or revive appellate filing periods)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (jurisdiction cannot be assumed sub silentio; courts should not rely on assumed jurisdictional rulings)
- In re DC Water & Sewer Auth., 561 F.3d 494 (D.C. Cir. 2009) (analogy that later non-substantive orders do not revive interlocutory filing deadlines)
- Marisol A. ex rel. Forbes v. Giuliani, 104 F.3d 524 (2d Cir. 1996) (cautioning against treating Baldwin County as squarely resolving recertification issue)