KEITH BOWLES, Petitioner-Appellant, v. HARRY RUSSELL, Warden, Respondent-Appellee.
No. 04-3262
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Submitted: October 25, 2005; Decided and Filed: December 28, 2005
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 05a0487p.06. Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 02-01520—Donald C. Nugent, District Judge.
Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; and ROSE, District Judge.*
COUNSEL
OPINION
BOGGS, Chief Judge. This is a case about missed deadlines. At times, they go unnoticed, but sometimes the lapse is fatal. This case presents one of the fatal variety. Petitioner Keith Bowles failed to receive timely notice of the district court‘s ruling that triggered his appeal period. When he did receive notice, he correctly sought relief under
I
On August 22, 1998, Keith Bowles, Richard Hayden, Damon Anderson, and Jamal Russell drove from Cleveland to Fairport Harbor, Ohio to see a performance at a bar called Hellbusters. The group left the bar early in the morning and drove to nearby Painesville to attend an after-hours party at the Argonne Arms apartment complex. On their way to the party, they passed a bar called Nino‘s, outside of which they saw Hayden‘s cousin, Marcus Moore, in some physical distress. Later, after rendezvousing with Moore, they learned from him that he had been jumped and beaten by a group of men from Painesville including Antonio Rymmer.
Bowles, Hayden, Anderson, and Russell agreed to search for Rymmer at the Argonne Arms and extract their revenge. When they found Rymmer, and he was armed, the group decided to delay their plan. Soon after, the group happened upon the victim, Ollie Gipson. Gipson appeared as if he might be armed and, when it became clear that he was not, Bowles, Hayden, and Anderson beat him. The final, deadly, blows were administered by Hayden after Bowles had returned to the car. Gipson died the next day as a result of his injuries. Bowles was indicted on September 4, 1998, for his part in the beating on a charge of felonious assault in violation of
In the trial court, Bowles moved for dismissal, arguing that Ohio‘s Revised Code had created two categories of murder in contravention of the Fourteenth Amendment. See
Bowles appealed his case to both the Court of Appeals and Supreme Court of Ohio. Both denied him relief. See Ohio v. Bowles, No. 99-L-075, 2001 WL 502042 (Ohio Ct. App. May 11, 2001). The one-year statue of limitations for federal habeas began running when the ninety-day certiorari period ended. See Abela v. Martin, 348 F.3d 164, 172 (6th Cir. 2003);
On September 5, 2002, Bowles filed his federal petition for a writ of habeas corpus. The case was referred to a magistrate judge, who, on May 23, 2003, issued a report and recommendation that the petition be denied. Bowles filed a lengthy objection to the magistrate judge‘s report, but United States District Judge Nugent, on July 10, 2003, adopted the findings in a short memorandum opinion, additionally denying the petitioner a certificate of appealability pursuant to
On August 6, 2003, Bowles moved for a new trial under Rule 59 or to amend the judgment under Rule 52, objecting to the adoption of the magistrate judge‘s report without, he argued, de novo review of the findings. See
On December 12, 2003, Bowles moved to reopen the appeal period pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Bowles claimed that the order of September 9, in contravention of the Rules, was never served by the court and that he was unaware of the order until December 3, 2003, when he obtained a docket sheet. See
On March 10, 2004, this court issued a show-cause order, questioning the late filing of the appeal. Bowles filed a response and on April 26, 2004, a motions panel of this court discharged the show-cause order and dismissed the appeal for lack of jurisdiction “as it applies to the July 28, 2004 judgment and the September 9, 2003, order.” But, the order continued, “[t]he appeal was timely filed as it applies to the February 10, 2004 ruling.” On September 8, 2004, construing the appeal as an application for a certificate of appealability under
[W]e grant a certificate of appealability on the following issues: whether Bowles was denied a fair trial and his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments by the prosecution‘s questions to him on cross-examination about the fact that he did not make a statement to the police and by the prosecutor‘s comments regarding his failure to volunteer a statement to the police.
II
A
Respondent Warden argues that lack of subject matter jurisdiction prevents us from hearing the merits of this appeal and that the jurisdictional scope of this appeal should be limited to the marginal order of February 10, 2004, reopening the time for filing an appeal. Petitioner does not offer any argument relating to the jurisdictional problem presented. However, even if the respondent had overlooked this issue, the Federal Rules of Civil Procedure make it incumbent upon this court to dismiss any action when it appears that the court lacks jurisdiction.
B
The Federal Rules of Appellate Procedure define the applicable deadlines in the courts of appeals.
(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;
(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and
(C) the court finds that no party would be prejudiced.
Petitioner moved to reopen pursuant to Rule 4(a)(6) on December 12, 2003. In accordance with the Rules, the motion was filed within seven days of December 5, the date on which petitioner received notice of the final judgment. This is also earlier than 180 days after the judgment, March 7, 2004. Finally, December 5 is not within 21 days of the entry of judgment, September 9. On February 10, 2004, the motion was granted and a marginal order reopened the period for appeal, extending it
III
A
Rule 4(a) has been interpreted as both mandatory and jurisdictional by the Supreme Court and this Circuit. See Browder v. Dir., Dept. of Corrs. of Illinois, 434 U.S. 257, 264 (1978); In re Sulzer Orthopedics & Knee Prosthesis Prods. Liab. Litig., 399 F.3d 816, 817 (6th Cir. 2005); Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016, 1018 (6th Cir. 1983); Oja v. Dep‘t of Army, 405 F.3d 1349, 1358 (Fed. Cir. 2005) (noting that it is “beyond cavil” that 4(a)(6) is mandatory and jurisdictional).
Other circuits have described Rule 4(a)(6)‘s limited opportunity to reopen the time for appeal as one that “balances the inequity of foreclosing appeals by parties who do not receive actual notice of a dispositive order against the need to protect the finality of judgments.” See Vencor Hosp., Inc. v. Standard Life and Acc. Ins. Co., 279 F.3d 1306, 1309 (11th Cir. 2002) (describing the Rule as limited and exclusive).
According to the Notes of the Advisory Committee on Appellate Rules, the purpose of the 1991 amendment was to provide “a limited opportunity for relief in circumstances where the notice of entry of a judgment or order, required to be mailed by the clerk pursuant to [
Fed. R. Civ. P. 77(d) ], is either not received by a party or is received so late as to impair the opportunity to file a timely notice of appeal”
Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 360 (8th Cir. 1994). See also In re Stein, 197 F.3d 421, 425 (9th Cir. 1999) (quoting identical language). The Tenth Circuit has found that “the essence” of the Rule is “finality of judgment.” Clark v. Lavallie, 204 F.3d 1038, 1041 (10th Cir. 2000). The Clark court, like the other circuits to have considered the issue, found the 180-day limitation in the Rule to be “specific and unequivocal” Id. at 1040. See Vencor, 279 F.3d at 1311; Servants of the Paraclete v. Does I-XVI, 204 F.3d 1005, 1010 (10th Cir. 2000); see also 16A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3950.6 at 228 (1999) (“Rule 4(a)(6) provides the exclusive means for extending appeal time for failure to learn that judgment has been entered. Once the 180-day period has expired, a district court cannot rely on the one-time practice of vacating the judgment and reentering the same judgment in order to create a new appeal period“). “While application of that concept infrequently may work misfortune, it is an overriding principle which demands enforcement.” Clark, 204 F.3d at 1041. “Moreover, nothing within Rule 4(a)(6) indicates it is permissive or that its limitations may be waived for equitable reasons.” Id. at 1040 (referring specifically to the 180-day limit).
B
Counseling a contrary and more liberal interpretation of the Rule is a line of Supreme Court cases employing an equitable interpretation of appeals time limits, starting with Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962) (per curiam). In Harris, the judgment of the trial court became final while the lead
Harris was soon followed by Thompson v. INS, 375 U.S. 384 (1964) (per curiam). In Thompson, the trial court explicitly accepted, and the government did not object to, the timeliness of a motion for a new trial that was actually two days late. Id. at 386. The motion was denied and a notice of appeal was filed that was timely with respect to the most recent motion, but not as to the original judgment. Ibid. The court of appeals dismissed the notice as untimely. Thompson v. INS, 318 F.2d 681, 684 (7th Cir. 1963); 375 U.S. at 385. The Supreme Court, however, relying on Harris, supra, reversed:
The instant cause fits squarely within the letter and spirit of Harris. Here, as there, petitioner did an act which, if properly done, postponed the deadline for the filing of his appeal. Here, as there, the District Court concluded that the act had been properly done. Here, as there, the petitioner relied on the statement of the District Court and filed the appeal within the assumedly new deadline but beyond the old deadline. And here, as there, the Court of Appeals concluded that the District Court had erred and dismissed the appeal. Accordingly, in view of these “unique circumstances,” we . . . remand the case to . . . be heard on the merits.
Thompson, 375 U.S. at 387 (quoting Harris, 371 U.S. at 217) (emphasis added, citation omitted). Four justices dissented in Thompson, finding that it was not analogous to Harris. Speaking through Justice Clark, they noted that the court in Thompson, unlike the court in Harris “had no jurisdiction to pass upon the untimely motions,” ten days having already elapsed. Id. at 389. Further, they accused the majority of extending Harris into a context where “excusable neglect” is neither mentioned nor alleged, making the standard of “unique circumstances” meaningless. Ibid. Accord, Wolfsohn v. Hankin, 376 U.S. 203 (1964) (per curiam) (extending time to move for a rehearing where extension was granted within the statutory deadline).
This court has recognized the “unique circumstances” doctrine of Thompson. See, e.g., Lawrence v. The Teamsters, 320 F.3d 590, 593 (6th Cir. 2003) (excluding court clerks and limiting reliance to statements by judges); Birrell v. Brown, 867 F.2d 956, 957 (6th Cir. 1989) (allowing extension of appeal period before 1991 amendment to
C
In comparing this case to the available precedents, we note that the circumstances here fall outside of the test formulated in Osterneck, that Thompson applies “only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done.” Osterneck, 489 U.S. at 170. As in Osterneck, “that is not the case here.” Ibid. First, petitioner‘s act did not attempt to postpone a deadline for filing his appeal; it was to move for a reopening of the appeal period so that he might file his untimely notice of appeal. Second, it was, in fact, the district court here that performed the improper act and purported to extend the filing date beyond what was permitted by the Rule. Clearly the district court is not a party. Additionally, the chronological order of the actions is distinct from those in Osterneck. The rule in that case requires that judicial assurances follow the actions of the party. Here, in contrast, the judicial assurance precedes the party‘s act. Finally, petitioner received no assurances from the district court that his notice of appeal was timely. Nor, as we explain below, did this court provide any meaningful assurance that the notice, with regard to any of the merits in the case, was timely. We believe that Osterneck‘s language to limit the reach of Thompson is applicable in this case. If Thompson is, in fact, a doctrine of “unique circumstances,” then it does not apply to the case at bar.
Additionally, considering policy, the Harris line of cases operates to excuse neglect on the part of the litigant, not on the part of the court. They are concerned with the unfairness and “obvious great hardship” of an appeals court reversing a trial court‘s decision to accept the negligent acts of a litigant, not with the negligent acts of the court itself. Harris, 371 U.S. at 217. They are therefore distinguishable through both their facts and the policies they promote. All these cases predate the 1991 amendments to the Rules of Appellate Procedure which, we believe, further undermine any argument for their liberal application in this
The amendment provides a limited opportunity for relief in circumstances where the notice of entry of a judgment or order, required to be mailed by the clerk of the district court . . . is either not received by a party or is received so late as to impair the opportunity to file a timely notice of appeal. The amendment adds a new subdivision (6) allowing a district court to reopen for a brief period the time for appeal upon a finding that notice of entry of a judgment or order was not received from the clerk or a party within 21 days of its entry and that no party would be prejudiced.
Advisory Committee Note to 1991 Amendment to
We believe that the truly relevant cases are those like Clark and Zimmer—and that the fourteen-day period in Rule 4(a)(6) should be treated as strictly as the 180-day period in that same Rule. The “limited opportunity for relief” contemplated by the Rule includes both enumerated periods. Our concerns for finality and economy and the Rule‘s historical function of relieving unfairness in a single factual situation by providing a set method of relief support this holding. As outer limits, the fourteen-day and 180-day periods are analogous. As one commentator noted, “The new paragraph (6) is explicit on the [14-day] point.” David D. Siegel, The Recent (Dec. 1, 1991) Changes in the Federal Rules of Civil Procedure, 142 F.R.D. 359, 379 (1992).
IV
As a final matter, we must determine whether the doctrine of the law of the case and the history of this litigation prevent us from recognizing the jurisdictional defect and thus require us to consider the merits. As the history above makes clear, there has been a substantial amount of activity in the court of appeals that could support the petitioner‘s view that the merits are properly before us. However, as we discuss below, this court has never held that jurisdiction is proper in this case. Rather, when the issue of jurisdiction has been properly before us, we have consistently found it to be lacking.
The law of the case, like issue preclusion, or collateral estoppel, prevents the relitigation of an issue once there has been a judgment on the merits. Later disputes concerning that issue are considered foreclosed in any subsequent suit.
The doctrine of the law of the case is similar in that it limits relitigation of an issue once it has been decided, but the law of the case doctrine is concerned with the extent to which the law applied in decisions at various stages of the same litigation becomes the governing principle in later stages.
18 Moore‘s Federal Practice, § 134.20 (Matthew Bender 3d ed.). “The gist of the [law of the case] doctrine is that once an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same case.” Int‘l Union of Operating Eng‘rs, Local Union 103 v. Indiana Const. Corp., 13 F.3d 253, 256 (7th Cir. 1994) (quoting Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991)); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). “The law of the case doctrine generally discourages courts from reconsidering determinations that the court made in an earlier stage of the proceedings.” United States v. Graham, 327 F.3d 460, 464 (6th Cir. 2003)
Further, the doctrine applies only to issues that have been decided explicitly (or by necessary implication) by a
Accordingly, we look to the prior decisions and orders of this court to determine if the issue of jurisdiction was actually decided in a final judgment. Only the order of April 26, 2004, addresses the issue of petitioner‘s untimely notice of appeal. That order is almost entirely devoid of any language even suggesting a decision of this court that jurisdiction for this appeal should be sustained. Only the last sentence, discussed below, could support a positive outcome for the petitioner. The entire discussion of the order supports its conclusion that the appeal be dismissed. Specifically, the appeal is dismissed as it relates to the judgment of July 28 and the order of September 9, 2003. Quizzically, however, the order continues to state, in its last sentence, that the appeal is timely as to the February 10, 2004, ruling.
However, the only appealable issues decided in the court below were the judgment to deny the granting of the writ, and the denial of petitioner‘s motion to reconsider that judgment. The April 26, 2004, order of our court explicitly states that there is no jurisdiction with respect to those issues. It isolates the February 10 ruling extending time to appeal as the sole appealable issue that this court can hear. Yet, when the merits adjudication is removed from the set of appealable issues, a complete absence of subject matter remains. Additionally, why would, or could, the petitioner appeal the February order when its outcome was favorable to him? We leave this question unanswered. We hold that the final sentence in the April 26 order was surplusage, that it added no meaning to the order and, therefore, it cannot be construed as a decision of this court. Because this court has not made any decision that is contrary to our ruling today, and because the doctrine of the law of the case is prudential and not jurisdictional, we hold that since the April order is, where explicable, consistent with our reasoning today, the doctrine of the law of the case is not upset in any cognizable way.
V
We therefore hold that this court is without jurisdiction to consider Bowles‘s appeal. Accordingly, this appeal is DISMISSED.