*3 SMITH, Cirсuit Judge drug crimes Lizardo convicted of various
Juan Francisco was for relief under He later of Islands. Virgin petitioned District sought he denied his and 2255. The District Court petition U.S.C. § were to Court.1 Three issues this appealability and received certificate under U.S.C. 1331. petition § jurisdiction § Court over Lizardo’s 2255 The District had certified but the first is whether Lizardo’s appeal, dispositive: untimely reconsideration, 59(e), motion for see FED. R. R Civ. tolled time for P. 4(a)(4)(A).2 App. notice see R. appeal, Fed. 59(e)3 is a rule. claim-processing timeliness Accordingly, ato motion under that rule if it objection brought may forfeited is not case, raised in the district court. In this untimely decided, motion was objection, by without District Court. The Government, therefore, forfeited it could have Court, made at that of the stage litigation. forfeiture in the District however, did not rеnder timely 4(a)(4)(A) of Federal Rules of Procedure.4 The Government is free challenge 4(a)(4)(A)’s to Lizardo’s reliance tolling — which that the provision underlying requires — filed, initiated the have been Fed. R. tolling App. P. such, in this Court. As the Government’s in this Court challenge 4(a)(4)(A)’s Lizardo’s invocation Rule tolling meritorious. provision Without the benefit of tolling, Lizardo’s notice of was and his must be dismissed for lack See FED. jurisdiction. R. 4(a)(1)(B). App.
I. Lizardo was convicted of conspiracy with intent to distribute possess cocaine, U.S.C. cocaine conspiracy import into United § States, distribute, id. 841(a)(1). intent possession id. § 16, 2002, On Lizardo moved vacate August his sentence under U.S.C. 2255. The District Court denied petition January 29, 2008, reconsideration, 2008. On February which sought *4 later, 7, 2008, denied on A March 2008. few weeks on April Lizardo filed of his notice the denial challenging of his motion for apрeal, 2 The appeal appeal other issues certified for were whether timely Lizardo’s notice of filed prison under the mailbox rule and whether applied the District Court the correct standard in evaluating right testify Lizardo’s claim that his trial counsel him of the to deprived on his own behalf. jurisdiction Lizardo concedes the former issue and lack we to address the latter issue. noted, Unless otherwise all references to “Rule refer to Rule the Federal 59” 59 of Rules of Civil as it Procedure existed in 2008. noted, Unless otherwise all to references “Rule 4” refer Rule 4 of the Federal Rules of as Procedure it existed in 2008. 16, 2008, sought May and his 2255 On petition. reconsideration § one on Court. We granted of this a certificate appealability 29, 2008.5 September States, be must the United notice
In a civil case involving from is entered. after or order appealed within days judgment filed App. circumstances, has party In some where 4(a)(1)(B). R. R Fed. court, district the deadline filed a motion in the timely post-judgment been tolled that motion has decided: a notice of until may filing a Notice (4) Effect of a Motion on of Appeal. of the following If court
(A) files party Procedure, the time to file an the Federal Rules of Civil motions under all from the order entry disposing runs for parties last motion: remaining such
(i) 50(b); under Rule for judgment 52(b),
(ii) or additional factual under findings to amend make not would alter the judgment; whether or granting under 54 if the district court extends (iii) for fees attorney’s 58; 59; under alter or (iv) judgment amend 59; (v) a new trial under no than 10 60 if the motion is filed later
(vi) for relief under Rule is entered. judgment after days App. 59(b) this re- time relevant to 4(a)(4). R. P. At the appeal,
Fed. its Rule mo- of an order file seeking reconsideration quired party P. 59(b). Fed. R. Civ. within ten that order. days tion case, of events unfolded: timeline following In Lizardo’s denied Lizardo’s The District Court petition. January a motion for reconsideration 2008 Deadline February 25,2008 order). 59(e) (ten from January er certify the District Court the issue whether appealability certificate of did that issue and Lizardo fails raise roneously motion for reconsideration denied Lizardo’s Varner, Therefore, 2253(c)(3); Villot v. address it. 28 U.S.C. appeal. need not in this App. Fed. R. 28(a)(5). 3d Cir. L.A.R. 327, 337 22.1(b); (3d 2004); see n.13 Cir. F.3d *5 831 29, 59(e). 2008 Lizardo moved for reconsideration under Rule
February 17, March 2008 The District Court denied Lizardo’s motion for re-
consideration. 25, March is no 4(a)(4)(A), If then the tolling .there filing (60
time for a notice appeal expires days 25, order). the January 7,2008 Lizardo filed a notice of to this Court. April appeal 16, 2008 If May 4(а)(4)(A), there then the time tolling filing (60 notice of appeal days from the expires 17, order).
March If tolled for reconsideration the time for not, notice his notice If it timely. was did his notice appeal, and we jurisdiction. App. was lack Fed. R. Russell, 4(a)(1)(B); 2107(b); 28 U.S.C. see v. Bowles 551 U.S. 212-13, S. Ct. L. (2007) Ed. 2d 96 (explaining procedural rules in statutes are grounded jurisdictional).
Lizardo that the argues Government waived its right object to the of the notice of deadline it tolling because did not to his untimely Rule the District Court.6 The “question [of] whether notice of is a timely law over question [Lizardo]’s Res., which we exercise DL review.” Inc. v. plenary FirstEnergy Solutions 506 F.3d Corp., (3d 2007). rule, rule, ais not a claim-processing jurisdictional so on
objections based
the timeliness
of that rule
requirement
may
forfeited.
of a
But
forfeiture
in the district court
does not render an untimely motion
of Rule
alternative,
In the
argues
Lizardo
that Rule 4
process
denied him due
because it did not
enough
provide him
time to file a motion for
reconsideration. Because
issue was not
Villot,
appeal,
2253(c)(3);
certified for
we need not address it. 28
U.S.C.
A. for 59(e) He filed his motion untimely. Lizardo’s Rule motion 2255 a Court denied his over month after District reconsideration 59(b). ten R. Civ. P. well after the rule. Fed. days petition, provided did not to Lizardo’s motion as and untimely The Government on Court denied motion the merits. District a our substantive action court Under pre-Bowles precedent, “any t[ook] Smith v. nullity.” motion have been untimely [would deemed] Evans, 155, 1988) (internal marks (3d 853 quotation F.2d Thus, motion, omitted). even if acted the district upon untimely “[a]n court, id. We a notice of at 157. filing toll time appeal,” [could not] that “Rule understanding reached thеse conclusions based our ten because entry must be served within judgment” be extended in the jurisdictional, ten and cannot day period “[t]he omitted). (internal Id. marks of the district court.” quotation discretion to follow this we would dismiss Lizardo’s appeal Were we approach, limit, 59(e)’s as a because Rule ten time day applied lack of jurisdiction rule, rendered the motion for reconsideration would have jurisdictional 4(a)(4)(A)’s tolling able to invoke Rule Lizardo would not be nullity. While the result we and notice of would be untimely. his provision same, as a can treat Rule longer no today reach rule, nor view jurisdictional as a nullity.
reconsideration
rule has undergone significant
a jurisdictional
What constitutes
Bowles,
in
in
Court’s decisions
years.
Supreme
recent
change
States,
Ct.
L. Ed. 2d 14
U.S.
126 S.
v. United
Eberhart
443, 124 Ct.
curiam), and
v.
540 U.S.
S.
(2005)
Ryan,
Kontrick
(pеr
our
from
(2004),
depart
pre-Bowles
L. Ed. 2d 867
us
require
rule. The
jurisdictional
be deemed
longer
can no
approach.7
hold
generally
“overrul[ing]
bars us
Although
9.1
Operating
Internal
Procedure
reconsideration,”
ClR.
“en
3D
panel”
without
banc
ing
precedential opinion
previous
in a
statute,
that are
Bowles Court
limits
not based on a
explained
rules,
59(e),
such as the one
are not jurisdictional
but
governing
Bowles,
“[Sjtatute-based
rules. See
Procedure. Both rules were Court promulgated by under the Supreme Act. Enabling (Rule Rules 28 Compare 59), U.S.C. 2071-2072 with §§ 4004). 28 (Rule U.S.C. 2075 Neither rule extends limits the Kontrick, of the jurisdiction courts. U.S. at (noting 540 453 that “it is axiomatic that under the Rules promulgated Enabling do not [rules Act] create (internal or withdraw jurisdiction”) federal marks quotation omitted). (“The[] FED. R. BANKR. Compare P. 9030 Rules [Federal shall not be Bankruptcy construed to extend or limit the Procedure] of the jurisdiction therein.”), courts or venue of any matters Fed. P. (“The[] R. Civ. 82 Rules of Civil do not [Federal Procedure] extend or limit of the venue jurisdiction district courts or the of actions Therefore, 4004, courts.”). in those like Bankruptcy 59(e)’s 9.1, may panel prior IOP “a of our decline Court to follow decision of our Court without necessity an en banc prior decision when the decision a Supreme conflicts with Court Tann, 533, (3d 2009). decision.” United States v. F.3d Cir. 541 what that not delineate deadline is a “claim-processing rule[] do[es] 454;8 Kontrick, at 540 U.S. adjudicate.” ... courts are competent сases Found, Alexander, (6th Cir. F.3d 475-76 v. Ecological Nat'l rule); W. First Ave. 2007) 59(e) that Rule is claims (holding processing Media, (9th Inc.), re F.3d (In LLC v. Onecast James Bldg., Co., 2006) Dill Am. Ins. F.3d (same); Cir. see v. Gen. Life 50(b) (8th Fed. R. is a 2008) claim-processing that Civ. (holding rule). rule, an based 59(e) objection is a claim-processing
Because See of a Rule be forfeited. may on the untimeliness Eberhart, raise a the Government U.S. 19. fail[s] “[W]here after the District Court reached defense of untimeliness until ha[s] case, merits, denied that Id. In this the District Court defense.” forfeits] Thus, the after its merits. considering the motion for reconsideration its Lizardo’s motion ability challenge forfeited Government Court. reconsideration as District untimely rule and claim-processing established Having forfeited, to a we turn may a timeliness objection failure to of whether the Government’s question Court forfeited that motion for reconsideration in District of Rule *8 B. in the district timely that files 4(a)(4)(A)(iv) states party “[i]f 59], the time motion to alter or amend the under judgment
court [a
the
entry
an
runs for all
from the
of
order disposing
file
parties
App. 4(a)(4)(A)
Fed. R.
remaining
(emphasis
of the last such
motion[.]”
the time
filing
motion does not toll
for
added).
An
if
the
4(a)(4)(A). This is true even the party opposing
the
court
district
did not
the motion’s untimeliness
object
Corr.,
Dep’t
on merits.
Browder v. Ill.
the motion
the
See
considered
264-65,
556,
257,
(1978);
L.
2d
S. Ct.
Ed.
521
U.S.
Carribean,
6,
(1st
Frito
358 F.3d
10-11
v.
Snacks
Lay
Garcia-Velazquez
States,
2001);
(4th
2004);
241 F.3d
Cir.
Panhorst v. United
Cir.
rule
See
Wight Corp., (2d 2000); v. BankAmerica 219 F.3d cf. Johnson, (3d 2008) (“[T]he v.Johnson & 523 F.3d Gutierrez fact that motion for timely the of the District Court’s purposеs [a] schedule make necessarily does for an timely this Court.”). Circuit, us the urges to follow Sixth which held that “where a to the forfeits untimeliness of a Rule
party
motion [in
court],
the
that forfeiture
for
‘timely’
makes
Found.,
Rule 4(a)(4)(A)(iv).”
Nat’l
purpose
Ecological
First, it creates a in treatment between the first five disparity types motions and last listed under post-judgment 4(a)(4)(A), type form, 4(a)(4)(A)(vi), 60 motions. Under Rule in its current this Court, court, not the district to determine required whether Rule 60 filed motion was “no later than 28 after judgment entered.” [wa]s Thus, Fed. R. R 4(a)(4)(A)(vi) (2010). APP. the circumstances of the litigation in the district are court irrelevant to whether a Rule 60 motion timely Under purposes the Sixth Circuit’s however, the approach, timeliness of the other post-judgment motions would be determined on the based in the district court. proceedings Whether those motions were filed would part depend upon of the quality party motion’s counsel at the district opposing court. If motion, counsel failed to the party’s timeliness of the would be forced deem the to file a notice of tolled. There is no reasoned Rule 60 explanation treating motions differently the other motions listed under Rule 4(a)(4)(A). fact, In frustrate 4(a)(4)(A)’s would one Rule disparity
— to the same deadline for all provide post-judgment motions listed rule. The Advisory Committee’s notes on the 2009 to Rule 4 (a)(4)(A)(vi) amendments state that section was amended to *9 match thе timeline of the other post-judgment motions that provide tolling: the time under
Formerly, limit subdivision (a)(4)(A)(vi) was 10 days, reflecting the for making limits motions under Civil 10-day Rules
836 (a)(4)(A)(vi) now contains a 50(b), 52(b), 28-day Subdivision 59. time in the Civil Rules. limit the revisions to the limits to match App. (2010) (Notes Committee on 2009 Amend- Advisory Fed. R. P. re- ments). back at least the amendments to Rule have Dating the time in which motions postjudgment to “standardize peatedly sought under 16A CHARLES A. WRIGHT, AR- must be made” Cooper Struve, R. H. & Catherine T. Federal Miller, THUR Edward at 330 and Related Matters 3950.4 Practice and Procedure: Jurisdiction uniform (4th 2008). ed. This interest in a deadline would be defeated by in the on what occurred district tolling largely is dependent approach (v), but based on our own tim- 4(a)(4)(A)(i) through solely court for Rule is 4(a)(4)(A)(vi). calculation for Rule ing addition, creates
In Circuit’s approach uncertainty Sixth to the Federal Rules of Civil timeline. 2009 amеndments Procedure, which, alia, 59(e) a Rule inter extended time filing intended to ten to show that Rule twenty-eight days, motion from Procedure, Rules of Civil enforce deadlines in the Federal provided a In litigation. them based on vary particular happenstance motion, 59(e) the extension of time for discussing filing to file such a *10 (2010) (Notes Amendments). Advisory Committee Fed. R. 6(b)(2) (“A Civ. P. court extend the must not act under . . Rule[]. 59[(e).]”). that an Holding untimely 59(e) motion is 4(a)(4)(A) of Rule virtue of the failure opposing party’s to that in untimeliness the district court would accomplish result of that intended 2009 amendments. The opposite time,” (Notes in R. Civ. “uncertainty (2010) appeal Advisory Fed. Amendments), Committee on would be embedded in the litigation Lizardo’s that we reject follow the Sixth process. Accordingly, request Circuit’s approach.
III. motion, We hold that an even one untimely that was not court, to in the objected does not toll the time to file notice of appeal The Government’s forfeiture of the timeliness objection Lizardo’s Rule District Court did forfeit not its timeliness challenge 4(a)(4)(A) based on made before this Court. Because Lizardo’s untimely motion did not toll the time to file notice his notice of appeal, appeal untimely and we must his dismiss for lack of jurisdiction.9
JORDAN, Circuit and Judge, Concurrence Dissent IWhile that agree my Lizardo’s colleagues — though reconsideration even it was not to in the objected district court — does not toll the time for Appellate 4(a)(4)(A), and that therefore his from the District Court’s denial his U.S.C. 2255 petition untimely, is I believe that the Supreme Russell, 205, 209, Court’s decision in Bowles v. 551 U.S. 127 S. Ct. Ed. 2d (2007), 168 L. conclusion that compels Appellate 4(a)(4)(A) is a rule and that claims-proсessing defenses under that rule can, instances, Thus, in certain be waived. I believe that waiver of a timeliness can indeed be made under Rule 4(a)(4)(A), Nevertheless, write so separately. because the government’s case, objection was waived this effectively I respectfully opinion 4(a)(4)(A) We no express on whether Rule a claim-processing jurisdictional is Indeed, any rule. such dicta expression undisputed would be because it Govern ment raised properly challenge the timeliness based on Rule this before Court. there no holding of the Majority’s opinion concur the portion Court’s denial of his from District over Lizardo’s appeal jurisdiction do not have that the holds that we Majority To the extent petition. Court’s denial of his District over jurisdiction *11 reconsideration, however, I dissent. respectfully the District Court’s Denial of his 2255 Appeal I. Lizardo’s from § Tolling1 Petition and Bowles, that the time for notice
In the Court held Supreme cases, 4(a)(6), is “mandatory in civil forth in Appellate set not U.S. at and thus waivable. 551 209 (quotations and jurisdictional” in the that the time omitted). Court its fact grounded holding The Supreme statute, 28 4(a)(6) “is set U.S.C. limitation in forth Appellate 2107.” Id. at 213. The Court “the jurisdictional noted expressly § rules,” not which are statute- distinction between court-promulgated driven, 4(a)(6). such as and “limits enacted by Congress,” Appellate the rules as Id. at referred to court-promulgated 211-12. Court concluded that rules it “nonjurisdictional” or “claims-processing” hand, 212,216. be waived.” Id. at the the Court rules On other “may those on that a time frame set statute “cannot litigant rely held subject 1 timing, significantly following centers on I note the timeline as back Becausе this case so ground for discussion follows: the 16, his under 2255. August 2002: Lizardo moves to vacate sentence § 25,
January petition. denies his 2255 § 2008: The District Court 8,2008: 59(e) February his motion for re- is the deadline for Lizardo to file This (Note: 59(e) the timeline contained in Rule consideration. case; entry today, it judgment from at the time Lizardo’s days). is 28 29,2008: 59(e) February proa motion for reconsideration. Lizardo files se Rule 17, 59(e) The District denies Lizardo’s Rule motion. March 2008: Court 25,2008: January the for Lizardo to file an March This is deadline tolling assuming there petition, of his is not based denial 59(e) his Rule motion. 7, (1) pro files a se notice from the District Court’s April 2008: (2) AND the District Court’s January petition 25 denial of his § 59(e) 17 denial of his Rule motion. March tolling if there May for Lizardo to file 2008: This is deadline on his Rule motion. based (“COA”) court. May from our appealability 2008: Lizardo seeks certificate Sept. grant We the COA. 2008: forfeiture waiver2 to excuse his lack of statute’s compliance time limitations.” Id. at 213. U.S.C. sets forth the time for
Although taking appeal, does contain the tolling found in provision Appellate Rule 4(a)(4)(A),3 nor way does it rules of civil embody procedure listed in 4(a)(4)(A), such as Federal Rule of Appellate Civil 59(e), Procedure at rule issue in the matter.4 As an present initial then, matter, I believe that Bowles that, us to conclude requires because 4(a)(4)(A) noted in are not set forth in a periods statute, rule must be classified as rather than claims-processing jurisdictional. My colleagues recognize that Rule Majority rule,” therefore, and that “an based “claim[s]-processing untimeliness of a Rule bemay forfeited.” Maj. Op. 9. Yet, no on whether Rule they “express is a claim- opinion words, rule.” Id. at n.9. In or jurisdictional processing other Majority *12 declines state that to Rule a explicitly 4(a)(4)(A) is claims- Appellate rule that a allows a processing party objection. waive timeliness Given the “jurisdictional” versus divide delineated in “claims-processing” Bowles, however, there no basis to draw a distinction between Rule 2 distinguish “forfeiture,” The Supreme Court did not between the terms “waiver” and and together used them to describe what can claims-processing occur under a rule. For “waiver,” instances, I simplicity, although, use the term in certain the difference between knowing a 3 deliberate significant. and waiver versus an may inadvertent forfeiture be 4(a)(4)(A)
Appellate provides Rule that: party If a files in district court following the of the under the motions Federal Procedure, Rules of to file Civil the time for parties entry runs all from the of the disposing remaining order of the last such motion: (i) 50(b); judgment under Rule (ii) or findings 52(b), to amend make additional factual grant- under Rule or whether not
ing
judgment;
the
would
motion
alter the
(iii)
attorney’s
fees under Rule 54 if the
district court extends the
under
58;
Rule
59;
(iv)
judgment
to alter or amend the
under Rule
59;
(v) for a new trial under Rule
(vi) for relief under Rule
the
days
60 if motion is filed no later than
the judgment
after
is entered.
59(e)
Federal Rule of Civil Procedure
addresses what are sometimes called motions for
reconsideration,
provides
and
judgment
that
motion to alter or amend a
“[a]
must be filed no
days
later than
after the
the
entry
judgment.”
the time
At
that Lizardo filed his motion
reconsideration,
by
timeframe set
days.
rule was 10
rather
than
statute,
4(a)(4)(A),
not
and
Rule
59(e), a rule
dictated Appellate
no
avoid
not
I see
Accordingly,
way
another rule
dictаted
statute.
59(e),
like
a
4(a)(4)(A),
claims-
conclusion that Appellate
And,
4(a)(4)(A)
if one
that
is claims-processing
rule.
accepts
processing
rule,
Bowles,
under that rule
be waived.”
“may
follows that defense
212;
States,
v.
at
see also Eberhart United
U.S.
U.S.
(2005) (describing
Ct.
In the did object present Thus, for reconsideration in the District Court. Lizardo’s motion waived its affirmative defense of untimeliness as to government much, 59(e) in the District Court. The as Majority recognizes Maj. 12-13, 3; that at but nevertheless holds “an Op. court,
motion, does even one that was not to in the district not objected 17. 4(a)(4).” toll the time to file an under Rule Maj. Op. as may To extent that the be read opinion implying Majority’s I 4(a)(4)(A), can waive an under Appellate never party cannot The waiver to the government available agree. have been exercised had the chosen government could of untimeliness in our Court. assert its affirmative defense
However, as agree I do with the in its what suffices Majority holding waiver of Rule does not suffice as waiver necessarily for purposes words, states, In other as the even when Majority to the timeliness of a Rule fails opposing party court, district court rules on that motion merits, can still raise the issue of timeliness with *13 the opposing party 4(a)(4)(A). Rule regard to Appellate
Here, to of not to the timeliness evidently the chose government Court, it could though reconsideration in the District 59(e). the the time then in under Rule Given 10-day have raised bar plаce ever, 4(a)(4)(A), Rule how the government different of purpose Appellate of of from the was free to assert the untimeliness Lizardo’s notice appeal did so its briefing of and it in District Court’s denial his petition, (“COA”) in case. this after issued a certificate of appealability treated as waived unless there 4(a)(4)(A) Rule should not be Appellate waiver, the has briefed waiving assertion of party has been explicit the merits of an without the affirmative defense raising of appeal Here, untimeliness.5 the never made an assertion government of explicit waiver, nor did it brief the the before merits of we issued COA. appeal Rather, the silent as to untimeliness under government simply 4(a)(4)(A). While silence is to enough effectuate waiver Appellate 59(e), there are reasons to it is good say enough not waiver Rule 4(a)(4)(A). effectuate under Appellate First, those two rules are aimed at different objectives. The limit contained in Rule a check district establishes on a court’s ability final revisit its Considerations under that rule are made on judgment. hand, 4(a)(4)(A), basis. specific, case-by-case on the other Appellate goes to the manner in which are from all processed district court appeals 4(a)(4)(A) cases. thus is Appellate systemic organizational rule. Its are to ensure that are treated in an goals manner appeals equitable and to to the bring certainty That broader appeals process. something 59(e), aim than the of Rule which allows limited for a opportunity district court to correct a error in a case. specific specific Accоrdingly, waiver under rightly more subject 59(e). than under stringent requirements waiver That a waived party that, party raising The idea if an opposing briefs the merits of an without the affir untimeliness, as, effect, waiver, mative of specific defense should be treated in assertion Robinson, Wilburn v. reasoning is consistent with the in District Columbia Circuit’s (D.C. 2007). F.3d 375 U.S. D.C. App. Wilburn, case, In opposing party challenge as in the instant the not did the timeliness of court, post-judgment untimely. Wilburn’s motion in the was in which fact 480 F.3d opposing 1144. Nor did the the party raise affirmative defense when untimeliness Wilburn However, case, Id. appeal. filed his party Wilburn opposing notice unlike the instant the in Id. at addressing briefed the merits of the appeal without the issue of untimeliness. 1147. analyzing Wilburn court tolling, noting In the the began explicitly issue of that “[t]he tolling language 4(a)(4)(A)(vi) the description fits Court’s claim-procеssing of a rule.” Id. at 1145. The court then noted opposing challenge party “did not the time- ijnstead, liness his only of Wilburn’s initial brief this court... he addressed [but that, Id. 1147.The court then held appeal.” “[ajlthough merits of opposing party [the eventually] raised the response parties timeliness issue in to our order to the to consider the [tolling] argument late.” Id. effect of on this ... too Accordingly, comes that, Wilburn court held opposing party] failed to [the assert “[b]ecause 4(a)(4)(A)(vi) briefing],... defense afforded Rule its merits [post-judgment Wilburn’s [in Id. tolled period appeal....” to have motion] Wilburn, here, government Unlike never briefed the merits of the without Therefore, raising government objection. its timeliness has waived its Appellate Rule *14 its defense the district court’s reconsider final ability silence its we not dictate the consideration to whether give party should judgment Indeed, an waiver filed an in our court. even has explicit be sufficient to overcome the ought timeliness and concerns that warrant systemic giving institutional more rigid application. Second, an if we were to hold that failure to party’s opposing of a Rule motion in the district court timeliness prevents the timeliness of motion for from party challenging — in Ecological the Sixth Circuit’s National tolling approach — Alexander, (6th 2007) F.3d we must Foundation v. are, however, There assume the existence of an certain opposing party. which in the contexts in no For opposing party present. example, cases, habeas and in Act context of Prison Reform Litigation corpus do district courts can and dismiss or plaintiff’s petitioner’s frequently has initial as frivolous before that been served pleading pleading 2243; cases, See U.S.C. U.S.C. 1997e. In those government. an or file reconsideration of plaintiff petitioner may and, dismissal, rules on that district court’s even if the court merits, still an on the motion on dismiss based may So, unlike in other civil untimeliness of motion.6 underlying plaintiffs cases, who would benefit under Sixth Circuit’s approach of a objection, waiver opposing party’s plaintiff have the of such a without an cannot benefit party opposing petitioner those That thus creates two classes of defendants: waiver. approach waiver, and those can them the benefit grant who opposing party no it. We without because there is one to grace grant opportunity classes of should not assume that intended create two Congress to a of waiver and those without. those with access appellants, possibility — Congress’s face already Prisoners habeas petitioners — claims choice screens filter the carefully placed they considered new for them leery creating impediments wish to We should be bring. on our own. context, 1915(e), pauperis 28 U.S.C. § A similar distinction can be found informa complaints they are served on a authority the court has to dismiss frivolous before which too, party a situation where the Court dismisses may opposing Here there be no defendant. party claim and then moves reconsideration.
Third, I the that an taken like that the agree Majority approach Sixth Circuit in National Foundation would result in an Ecological There an uncertainty is obvious unacceptable appellate process. that ensue uncertainty wоuld should timeliness of an be appeal on the motions of before the predicated idiosyncratic litigants practice reason, that, 4(a)(4)(A) district court. for that Rule states Likely Appellate rule, files” of the motions listed in the “the timely party “[i]f to file for all from the of entry an runs the order parties disposing of such remaining added). the last A (emphasis simple textual motion[.]” then, that, matter, would dictate as a approach, general 59(e) motion able should be to toll time for an if it only filing i.e., 59(e). filed within the timeframe dictated Rule “timely,” Unless (see there 5), is a assertion of waiver note should specific supra be parties able to on that in rely “timely” 4(a)(4)(A). caveat Appellate rule itself thus lends further that in to the conclusion a waiver the Rule support 59(e) in context does not translate into wаiver Appellate 4(a)(4)(A) context.7 I also that agree the National
Finally, embracing Ecological Foundation would create an approach internal within inconsistency Appellate lists six types motions that can toll the time post-judgment filing an but only appeal, one of six is a time limit. accompanied by Specifically,Appellate 4(a)(4)(A)(vi) that a Rule 60 motion can toll the time for provides filing an but if is “filed no later than appeal, only days after the judgment Court, court, is entered.” Based on that our not the district language, recognize uncertainty 7 1 that an approach element results from our A as well. reason litigants frequently given forcing positions they to live with the took in the district court allowing is that a new to be position taken for first time our Court works unfairness filing good to the party рroceeds the motion who opposing party faith reliance what the Here, did or did not do in the court. parties we have a circumstance where both valid, the District Court treated Lizardo’s motion as for reconsideration and addressed it on merits. See App. (“Having premises, hereby considered the it is ORDERED that denied.”). Allowing Lizardo’s motion for reconsideration is a timeliness to be now, that, appeal, though raised for the parties first time means even and the Court reconsideration, proceeded with the deciding timely, motion it as if it were and even that, though were they all free to do should nevertheless have known to file a notice However, before the uncertainty reconsider was decided. this results - - case, manner, party’s from a in this timely failure to file a Rule motion in a and, importаntly, uncertainty case-by-case this kind of exists on a basis. If we have a clear rule, likely we are to have fewer cases like this one. filed whether the Rule 60 motion was within determine required hand, On other were we to the Sixth adopt time frame. 28-day of the other five motions post-judgment Circuit’s approach, — — on the at least the Rule motions would determined based Thus, would the district court. an internal inconsistency proceedings can toll the time for because a Rule 60 motion only result entry if that motion filed within 28 of the whether judgment, untimeliness before the district object or not the fails opposing party court, render whereas the failure to a Rule motion would for the of tolling.8 *16 — sum, I hold an motion for reconsideration
In would that — toll for when not to in the district court does not the time even objected there been a 4(a)(4)(A), under Rule unless has filing Appellate waiver, of or by assertion of statement waiver by clear either explicit to the that fails address issue of timeliness. Appellate merits briefing rule,9 but, instance, this a is a in timeliness 4(a)(4)(A) claims-processing concede, is, nature, however, type post- that a its a different of 8 1do Rule 60 motion 4(a)(4)(A). aRule judgment filing relief the other listed in The of Appellate than motions event, litigation litigation is not to a but events that occurred outside the 60 motion tied Thus, accompanied the Federal Rules of post-judgment while other motions are context. begin that run when the district court enters final by specified Civil Procedure time limits motion, 60(b) judgment grants types or denies a certain of motions under Rule discrete Civ. entry judgment. be “within a time” after the Fed. R. simply must made reasonable result, likely 60(c)(1). necessary Appellate a for drаfters of the Federal Rules of As it was the the separate period into a within which incorporate Appellate the Rules Procedure 60(b) period respect the a notice of filing of a Rule motion will toll Otherwise, matter, 60(b) a Rule motion judgment. party a technical a could file the final as they that that years entry judgment, argue upon disposition and then after of a final right original judgment. to appeal had a 4(a)(4)(A) Appellate claims-processing that Majority says that statement The here, dicta, the Government raised issue of timeliness rule would because so, Majority’s holding is 4(a)(4)(A). Maj. this is if the basis for the Op. Perhaps at 189 n.9. 4(a)(4)(A). objection Appellate under proper that the Government made that, view, However, which my there are circumstances in separately I write to make clear impression leave fact be waived. I write ensure that we do not such an could in might Ma one understand from the jurisdictional, which Appellate jority’s opinion. Further, Majority recognizes approach departs from Sixth Circuit’s while the its of Co- Majority departs approaches also from embraced District approach, Wilburn, Eighth Dill v. General Ameri- and the Circuit in lumbia Circuit in F.3d Co., certainly (8th 2008), While two decisions are 525 F.3d those can Insurance Life here), rightly (for they explicit are about distinguishable that need not be addressed reasons
defense under that rule was not waived. these For claims-processing reasons, I concur. respectfully from Appeal
II.Lizardo’s the District Court’s Denial of his for Motion Reconsideration from both the District Court’s January appealed
denial of his 2255 motion and District March Court’s denial his Rule motion. must ask whether We therefore his motion reconsideration is if measured from motion, District Court’s denial of that tolling separate apart holds, must, as it that Rule 59(e) is Majority claims-processing rule. It therefore can concludes that “we no treat Rule as a longer rule, nor jurisdictional view Lizardo’s untimely motion reconsideration as at 10. If cannot nullity.” Maj. Op. we view Lizardo’s (i.e., motion for reconsideration we nullity as a must view it as cannot legitimate), also view the District Court’s denial of that motion words, as a for reconsideration In other nullity. the District Court’s denial of Lizardo’s reconsideration is an order from which an appeal can be taken.
Because the District
denial
Court’s
of Lizardo’s motion for
*17
order,
reconsideration
final
Lizardo’s
as measured
that
denial is
and we have
timеly,
over those issues he
jurisdiction
raised in his
motion for reconsideration.10 The District Court denied
Lizardo’s
rule,
4(a)(4)(A) being
Appellate
claims-processing
they
principle
and
embrace the
Wilburn,
4(a)(4)(A)
may
that defense under
See
Appellate
accordingly
waived.
be
n
that,
(stating
4(a)(4)(A)(vi)
F.3d
we conclude that the time limit of Rule
“[b]ecause
rule,
constitutes
claim-processing
opposing party]
the issue becomes whether
forfeited
[the
Dill,
(“[B]ecause
right
it”);
to assert
I would therefore construe the COA to encompass issue of whether the District Court erred in denying reconsideration, Lizardo’s motion for and thus would say that Lizardo’s from the District Court’s denial of his motion for reason, reconsideration is For timely. I respectfully dissent to the extent that the holds Majority that we do not have jurisdiction over Lizardo’s the District Court’s denial of his motion for reconsideration. Notes that the time Advisory explain period Committee Rule 4 integrates motion is sensitive because Appellate “particularly FED. R. Crv. P. 59 time to motion [Rule 59].” Indeed, Amendments). (Notes (2010) Committee Advisory “to set definite of time when litigation Rule 4’s main point purpose Browder, (internal at marks 434 U.S. quotation shall end[.]” omitted). extending of this amendment In furtherance purpose, ten to for a Rule motion from twenty-eight deadline time file the additional motivated desire provide was partially into the timeline uncertainty while not injecting the motion’s discretion to set deadline for the district court granting time uncertainty “Rather than introduce the filing. prospect time,” Fed. R. Civ. P. 59 6(b) to additional by amending permit — Amendments) say, (Notes by, Committee (2010) Advisory motion for “good of time to file Rule an extension permitting motions, cause,” to do for some other as courts are permitted — Fed. R. Crv. on the extension of 6(b)(1) 6(b)’s prohibition R. Civ. P. 59 specifically preserved, to file Rule Fed.