In re: Charles Strange ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted April 7, 2020 Decided July 10, 2020
No. 19-7083
CHARLES STRANGE, ON BEHALF OF MICHAEL STRANGE, THEIR
SON AND STEPSON, ET AL.,
APPELLANTS
v.
ISLAMIC REPUBLIC OF IRAN, INTEREST SECTION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00435)
No. 19-8004
IN RE: CHARLES STRANGE, ON BEHALF OF MICHAEL STRANGE,
THEIR SON AND STEPSON, ET AL.,
PETITIONERS
Petition for Permission to Appeal Under 28 U.S.C. § 1292(b)
from an Interlocutory Order of the United States District
Court for the District of Columbia
(No. 1:14-cv-00435)
2
Larry Klayman was on the briefs for
petitioners/appellants.
Erica Hashimoto, Director, and Marcella Coburn,
Supervising Attorney, Georgetown University Law Center,
both appointed by the court, were on the brief as amicus curiae
in support of the District Court’s June 4, 2019 order. With them
on the brief were Emily Clarke and John Donnelly, Student
Counsel.
Before: HENDERSON, GRIFFITH and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
Interlocutory review is an exception to the final judgment rule
and our jurisdiction of such appeals is therefore limited. Before
an aggrieved litigant can invoke our interlocutory jurisdiction
under 28 U.S.C. § 1292(b), the district court must certify its
order for appeal. We may then, in our discretion, permit an
appeal only if the litigant files a petition “within ten days after
the entry of the [certified] order.” Id. We have long recognized
that section 1292(b)’s filing period is jurisdictional and thus the
failure to file timely the required petition precludes us from
exercising jurisdiction of the appeal.
Here, the district court certified an order for interlocutory
appeal but no petition was filed by section 1292(b)’s deadline.
The district court thereafter granted a motion to recertify its
order and the litigants filed both a petition for permission to
appeal and a notice of appeal within ten days after
recertification. We conclude in this consolidated opinion that a
district court cannot restart the jurisdictional clock in this
3
manner. Accordingly, and for the reasons that follow, we
dismiss the petition and related appeal for lack of jurisdiction.1
I
On August 6, 2011, a helicopter carrying thirty United
States servicemembers was shot down by insurgents in
Afghanistan, leaving no survivors. Navy Petty Officers First
Class John Douangdara and Michael Strange and Army Staff
Sergeant Patrick Hamburger were among the Americans killed.
Nearly three years later, their parents and stepparents
(collectively, Parents) brought this suit against those
individuals, governments and state entities (collectively,
Foreign Defendants) the Parents hold responsible. Specifically,
the Parents allege that the Foreign Defendants engaged in
racketeering, see 18 U.S.C. §§ 1961 et seq., violated multiple
federal anti-terrorism statutes, see id. §§ 2333, 2339, 2339A,
and committed numerous common law torts in connection with
the helicopter attack.
Most of the Foreign Defendants are no longer parties to
this action. The district court concluded that, under the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq.,
it lacked subject-matter jurisdiction of the claims against the
Islamic Republic of Afghanistan and three of its state entities,
see Strange v. Islamic Republic of Iran, 320 F. Supp. 3d 92, 99
(D.D.C. 2018), and the Parents voluntarily dismissed Ayatollah
Sayyid Ali Hoseyni Khamenei, former President of Iran
Mahmoud Ahmadinejad and the Army of the Guardians of the
Islamic Revolution, see Suppl. App. (S.A.) 61. Four
defendants—the Islamic Republic of Iran, Al Qaeda, the
1
These cases were considered on the record from the United
States District Court for the District of Columbia and on the briefs
filed by the parties and amicus curiae. See FED. R. APP. P. 34(a)(2);
D.C. CIR. R. 34(j).
4
Taliban, and former President of Afghanistan Hamid Karzai2—
now remain. Iran was properly served pursuant to the FSIA,
see 28 U.S.C. § 1608(a)(4) (authorizing service “through
diplomatic channels”), and Al Qaeda and the Taliban were
served by publication, see S.A. 63–64. The Parents’ efforts to
serve Karzai, however, have been less fruitful.
First, they argued that Karzai was served under
section 1608(b)(3) of the FSIA by his name being included in
documentation delivered to Afghanistan and its state entities.
But the suit against Karzai is not governed by the FSIA.
Although “it may be the case that some actions against an
official in his official capacity should be treated as actions
against the foreign state itself,” Samantar v. Yousuf, 560 U.S.
305, 325 (2010), the Parents allege that Karzai “was acting in
his unofficial capacity,” S.A. 54, and, as a result, they cannot
“rely on the [FSIA]’s service of process and jurisdictional
provisions,” Samantar, 560 U.S. at 324 n.20. Accordingly, the
district court held that Karzai must be served pursuant to
Federal Rule of Civil Procedure 4(f), which governs service of
process on individuals in foreign countries. S.A. 55.
Second, Karzai was purportedly served by publication
pursuant to Rule 4(f)(3), which authorizes service “by other
means not prohibited by international agreement, as the court
orders.” FED. R. CIV. P. 4(f)(3) (emphasis added). Despite
permitting the Parents to serve Al Qaeda and the Taliban by
publication, however, the district court “never ordered such
service on . . . Karzai.” S.A. 55. Moreover, it found the
published notice insufficient to inform Karzai that a lawsuit
2
The Parents allege that Karzai “sold the coordinates of [their]
sons’ location and other classified information,” Parents’ Br. 5, based
on his reported contacts with the Taliban and a history of Afghan
soldiers firing on coalition forces, see id. at 6.
 5
had been filed against him in his individual capacity. See S.A.
56–57.
The Parents next attempted to serve Karzai under Rule
4(f)(2), which provides, in relevant part, that “unless prohibited
by the foreign country’s law,” service may be effected “using
any form of mail that the clerk addresses and sends to the
individual and that requires a signed receipt.” FED. R. CIV. P.
4(f)(2)(C)(ii). After the United States Embassy in Afghanistan
indicated that documents for Karzai should be delivered to the
Presidential Palace in Kabul, the Parents contacted the
Embassy of Afghanistan in Washington, D.C. for further
guidance. Because many government officials work in the
Palace, the Afghan Embassy, attempting to discern the
package’s intended recipient, asked the Parents to identify the
specific individual or office they desired to reach. The Parents
declined to answer, however, and were thus provided with the
names and telephone numbers of three individuals available for
contact, including a “Mr. Kakar.”3 The summons and
complaint were subsequently delivered to the Palace and
signed for by Kakar. The district court ruled that service had
still not been perfected, considering the summons and
complaint were not delivered to Karzai personally and the
Parents presented no evidence that Kakar was authorized to
accept service on Karzai’s behalf. S.A. 64–65.
Finally, the Parents requested to serve Karzai by Twitter.
The district court exercised its discretion and denied their
original motion for leave because, among other things, the
Parents had made no attempt to obtain the information
necessary to determine whether service by mail had in fact been
effective. S.A. 78; cf. Freedom Watch, Inc. v. Org. of the
3
“Mr. Kakar” is apparently Muhammad Suleman Kakar, then
First Deputy National Security Advisor of Afghanistan. See Parents’
Br. 23.
6
Petroleum Exporting Countries, 766 F.3d 74, 81 (D.C. Cir.
2014) (“[W]hether to allow alternative methods of serving
process under Rule 4(f)(3) is committed to the sound discretion
of the district court.” (citation and internal quotation marks
omitted)). But the court pledged to reconsider the motion if
Kakar was not authorized to accept service and the Parents
could not otherwise ascertain Karzai’s agent. Ex post attempts
to resolve the open questions around Kakar fell flat, however,
as neither the Afghan Embassy nor Kakar responded to the
Parents’ inquiries.
Then, on December 21, 2018, without the district court’s
approval, the Parents’ counsel attempted to contact Karzai on
Twitter. The body of the tweet simply stated: “Strange v.
Islamic Republic of Iran, et al. @KarzaiH.” App. 62. By
“mentioning” Karzai’s username, the Parents ensured that his
Twitter account would receive a notification of the message.
The tweet also contained a partial screenshot of the summons
but the picture was cropped in such a way that only one
sentence—“A lawsuit has been filed against you”—was fully
visible. App. 62. Only by clicking on the image, which was in
fact an embedded link to the Parents’ counsel’s website, could
Karzai view the summons and complaint in their entirety.
Nearly five months later, the Parents renewed their request
to serve Karzai by Twitter. The district court denied the motion
without prejudice. S.A. 101. Ultimately, “the [c]ourt [wa]s not
convinced that Twitter would be reasonably likely to give . . .
Karzai notice of this lawsuit.” S.A. 97–98 (citing Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)
(service must be “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections”)). To prove that “Karzai has a strong presence on
Twitter and tweets almost daily to communicate with his
7
audience,” Parents’ Br. 21, the Parents catalogued his Twitter
activity over a ten-day period in December 2018. But they
failed to reconcile their premise—that Karzai saw the
December 21 tweet and received notice of the pending
lawsuit—with the fact that Karzai, like many public figures,
does not manage his own Twitter account. Although Karzai’s
account makes plain this distinction, advising that “[p]ersonal
tweets are signed – HK,” Hamid Karzai (@KarzaiH), TWITTER,
www.twitter.com/KarzaiH (last visited July 1, 2020), the
Parents never identified which, if any, of the tweets they
offered as evidence were sent by Karzai personally. The district
court conducted its own review and concluded that Karzai had
a “limited personal presence on Twitter,” having discovered
only one of the twenty-two tweets sent from his account in May
2019 was signed “HK.” S.A. 98.
The district court noted additional shortcomings of the
proposed means of service. First, as a public figure, Karzai was
often mentioned by other Twitter users and was therefore
unlikely to notice a single tweet sent from an unfamiliar
account.4 The substance of the tweet was also “somewhat
confusing.” S.A. 99. The partial screenshot made clear that the
summons was addressed to Karzai at the Afghan Embassy in
Washington, D.C. but, as Karzai had no presence at the
embassy, it was not obvious that the notice was directed to him
in a personal capacity. And although this confusion could have
been remedied by following the link to the Parents’ counsel’s
website, basic principles of cybersecurity advise that no one,
let alone a world leader, should click links sent by strangers.
See S.A. 99. Finally, the court distinguished the Parents’
claimed legal support. In the nonbinding cases they cited,
“social media platforms were used, if at all, only as a
4
In May 2019, for example, Karzai’s account received
approximately 165 tweets within a seven-day period. S.A. 98.
8
supplement to service by email or other means,” whereas the
Parents proposed to serve Karzai “by Twitter alone.” S.A. 99.
The district court therefore declined, at that time, to allow the
Parents to serve Karzai by Twitter. S.A. 96.
The Parents moved to amend the court’s order by
certifying the Twitter-service issue for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b). Notwithstanding “the general
rule that appellate review must await final judgment,”
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 716 (2019), if
a district court determines that one of its orders “involves a
controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination
of the litigation,” and it says so in the order, the adversely
affected litigant can seek immediate review, 28 U.S.C.
§ 1292(b). Access to an appellate tribunal is not guaranteed,
however. Rather, the court of appeals with jurisdiction of a
direct appeal may, “in its discretion, permit an appeal . . . if
application is made to it within ten days after the entry of the
order.” Id. Federal Rule of Appellate Procedure 5, which
implements section 1292(b), clarifies that, if the certification is
not included in the original order and is thereafter added by
amendment, “the time to petition runs from entry of the
amended order.” FED. R. APP. P. 5(a)(3).
The district court found the statutory preconditions
satisfied and granted the Parents’ motion on July 12, 2019. See
S.A. 111. The Parents thus had until July 22, 2019—ten days
after the court amended its Twitter order to add the requested
certification—to petition for review. They failed to do so by the
deadline. Instead, on July 23, the Parents moved for an
extension of time to petition and, in the alternative,
recertification of the order. Although the district court
recognized that it could not extend section 1292(b)’s
9
jurisdictional filing deadline, it nevertheless granted
recertification on July 30, 2019, after concluding that the
“original justifications for granting a certification of appeal
remain valid.” S.A. 121.
Six days later, on August 5, the Parents filed a notice of
appeal in district court. The notice was transmitted to this Court
on August 9, the same day the Parents petitioned for permission
to appeal. Two cases were thus opened: No. 19-7083 involves
the notice of appeal and No. 19-8004 covers the petition for
permission to appeal. Notwithstanding this docketing
treatment, the two cases are one and the same. Because the
Parents invoke only our interlocutory jurisdiction, we have
jurisdiction of the appeal in No. 19-7083 only if we grant the
petition for permission to appeal in No. 19-8004. In other
words, our jurisdiction of the related cases turns on whether
recertification of the district court’s order cured the Parents’
failure to timely file a petition within ten days of the initial
certification order. The Court thus referred the petition in
No. 19-8004 to the same merits panel as the appeal in No. 19-
7083, appointed counsel as amicus curiae in support of the
district court’s Twitter order and directed the parties to address
the jurisdictional question in their briefs.5
II
The Parents neither challenge the jurisdictional nature of
section 1292(b)’s filing period nor argue that they applied to
this Court “within ten days after the entry of” the district court’s
original certification order. 28 U.S.C. § 1292(b). Ordinarily,
“[f]ailure to file the petition for permission to appeal within the
[ten]-day period . . . deprives us of jurisdiction over the
appeal.” Carr Park, Inc. v. Tesfaye, 229 F.3d 1192, 1194 (D.C.
5
We thank amicus for the outstanding briefing and have found
it to be of great assistance.
10
Cir. 2000) (per curiam). This straightforward conclusion is
complicated, however, by the fact that the district court
recertified its order for interlocutory appeal and the Parents
thereafter filed a petition within ten days. We have not
previously addressed whether a district court can “restart[] the
§ 1292(b) clock” in this manner. See Kennedy v. Bowser, 843
F.3d 529, 538 (D.C. Cir. 2016) (Griffith, J., concurring)
(citation omitted). The Parents contend that “[t]he
jurisdictional nature of [section 1292(b)’s] time limitation . . .
is circumvented when a district court recertifies its prior
certification order,” Parents’ Br. 12, and that we therefore have
jurisdiction of their interlocutory appeal. We disagree.
The Parents primarily rely on Baldwin County Welcome
Center v. Brown, 466 U.S. 147 (1984) (per curiam), but, simply
put, “Baldwin County is a puzzling case,” Groves v. United
States, 941 F.3d 315, 322 n.3 (7th Cir. 2019). In Baldwin
County, the district court had recertified its order nine months
after section 1292(b)’s filing period had expired, thereby
“permitting what would otherwise be a time-barred
interlocutory appeal.” 466 U.S. at 162 (Stevens, J., dissenting).
Yet this jurisdictional question was addressed only by Justice
Stevens in his dissenting opinion, joined by Justices Brennan
and Marshall. Despite recognizing that the “[ten]-day time
limit . . . is mandatory and jurisdictional,” id. at 161, Justice
Stevens concluded with little explanation “that interlocutory
appeals in these circumstances should be permitted,” id. at
162.6 This was so, he continued, “notwithstanding the fact that
this view essentially renders the [ten]-day time limitation, if not
6
Justice Stevens was “persuaded by the view, supported by the
commentators,” that section 1292(b)’s filing deadline begins anew
after recertification. 466 U.S. at 162 (Stevens, J., dissenting). But he
nowhere details why his view is correct.
11
a nullity, essentially within the discretion of a district court to
extend at will.” Id.
Contrary to the Parents’ suggestion, “a dissenting Supreme
Court opinion is not binding precedent” because it “does not
tell us how a majority of the Court would decide” the question.
Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th
Cir. 1996). And in Baldwin County, “[t]he majority didn’t
address the question at all, so it is unclear whether it viewed
the procedural posture differently or thought that interlocutory
jurisdiction was proper.” Groves, 941 F.3d at 322 n.3. Indeed,
not only is the per curiam opinion silent on the effect of
recertification, it does not even mention section 1292(b).
Inasmuch as the majority responded to other arguments raised
by Justice Stevens, see, e.g., 466 U.S. at 150 n.4 (majority
opinion), the complete lack of discussion on this point is
unusual, especially given the “conflict in the Circuits on this
jurisdictional question,” id. at 161 (Stevens, J., dissenting).
The Parents nevertheless maintain that Baldwin County
“implicitly addressed recertification by taking the appeal.”
Parents’ Reply Br. 3. Assuming arguendo that the Parents are
correct, the majority’s silence does not transform the dissent’s
conclusion into a binding holding. That is, “[e]ven if the
majority approved recertification sub silentio, . . . its
assumption would be a ‘drive-by jurisdictional ruling[]’
lacking precedential effect.” Groves, 941 F.3d at 322 n.3
(alteration in original) (quoting Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 91 (1998)). In Steel Co., the Supreme Court
disclaimed reliance on the supposed jurisdictional ruling in
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,
Inc., 484 U.S. 49 (1987), because, among other things, the
Gwaltney Court was apparently unaware “that anything turned
upon whether the existence of” the cause of action at issue “was
technically jurisdictional” and, instead, its “jurisdictional
12
character . . . was assumed without discussion by the Court,”
Steel Co., 523 U.S. at 91. Likewise, in Baldwin County, section
1292(b)’s “jurisdictional limitation . . . simply escape[d] the
attention of the Court.” 466 U.S. at 152–53 (Stevens, J.,
dissenting); see also Marisol A. ex rel. Forbes v. Giuliani, 104
F.3d 524, 527 (2d Cir. 1996) (Baldwin County did not
“squarely address[] . . . whether a circuit court has jurisdiction
to consider a § 1292(b) petition in this situation”).
In sum, we are not bound by a jurisdictional ruling that the
High Court majority declined to hint at, even in passing. See In
re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008) (“It is
a well-established rule that ‘cases in which jurisdiction is
assumed sub silentio are not binding authority for the
proposition that jurisdiction exists.’” (quoting John Doe, Inc.
v. DEA, 484 F.3d 561, 569 n.5 (D.C. Cir. 2007))). Thus,
although the Parents cite Baldwin County “as implicit support
for the district court’s power to recertify an order, the issue
bears further exploration in view of the majority’s silence.”
Marisol A., 104 F.3d at 527.
The Parents correctly note that most circuits to consider
the issue have held that recertification resets the jurisdictional
clock. See Groves, 941 F.3d at 321–22 (compiling cases). This
“precedent, while not binding, is ‘persuasive authority that
should not be completely ignored.’” Schnitzer v. Harvey, 389
F.3d 200, 203 (D.C. Cir. 2004) (quoting Kreuzer v. Am. Acad.
of Periodontology, 735 F.2d 1479, 1490 n.17 (D.C. Cir. 1984)).
Despite reaching the same outcome, these courts approach the
jurisdictional question in myriad ways. For example, the
weight afforded Baldwin County varies considerably. Like the
Parents, the Fourth Circuit views Baldwin County as endorsing
recertification. See Safety-Kleen, Inc. (Pinewood) v. Wyche,
274 F.3d 846, 866–67 (4th Cir. 2001). Others are more
skeptical, see Marisol A., 104 F.3d at 527, and some do not
13
reference Baldwin County at all, see generally In re Benny, 812
F.2d 1133 (9th Cir. 1987).
Our sister circuits have also articulated different criteria
for determining when it is appropriate to accept a recertified
order for interlocutory appeal. The Fifth Circuit permits the
district court to “reenter the interlocutory order and thus trigger
a new ten-day period” if “the previous justification for a
certification continues to exist.” Aparicio v. Swan Lake, 643
F.2d 1109, 1112 (5th Cir. 1981). Most, however, employ some
form of equitable balancing. See, e.g., In re City of Memphis,
293 F.3d 345, 350 (6th Cir. 2002) (recertification is proper “to
avoid an injustice to a party caused by the inadvertent acts of
the district court”); Safety-Kleen, 274 F.3d at 867 (“[T]he
district court should consider whether the appellant can show
excusable neglect” and, if so, “whether the appellee can show
sufficient prejudice to warrant a denial of recertification.”);
Marisol A., 104 F.3d at 528 (appellate court should consider
“the length of the delay,” “the reasons given for failing to
timely file,” “and any prejudice to the appellee from the
delay”); In re Benny, 812 F.2d at 1137 (“[T]he court of appeals
may exercise jurisdiction over the appeal if it determines that
jurisdiction . . . would serve judicial efficiency.”).
Although these out-of-circuit cases take divergent paths,
they have one thing in common—all predate Bowles v. Russell,
551 U.S. 205 (2007), which “introduced the [Supreme] Court’s
renewed emphasis on the federal courts’ lack of authority to
read equitable exceptions into fixed statutory deadlines,”
Groves, 941 F.3d at 321. In Bowles, a criminal defendant failed
to timely file a notice of appeal and moved to reopen the filing
period pursuant to Federal Rule of Appellate Procedure 4(a)(6)
and 28 U.S.C. § 2107(c), both of which, under certain
conditions, authorize the district court to extend the deadline
for a period of fourteen days. See 551 U.S. at 207. The district
14
court granted the motion but “inexplicably” provided
seventeen days to file; the defendant thereafter filed his notice
of appeal outside the fourteen-day statutory period. Id. The
Supreme Court affirmed that “time limits for filing a notice of
appeal are jurisdictional in nature” and, accordingly, the
“untimely notice—even though filed in reliance upon a District
Court’s order—deprived the Court of Appeals of jurisdiction.”
Id. at 206–07.
Only one circuit court has addressed the recertification
question post-Bowles. The Seventh Circuit had previously held
that interlocutory jurisdiction of a recertified order is proper if
equitable considerations favor an appeal even after the
statutory deadline has expired. See Nuclear Eng’g Co. v. Scott,
660 F.2d 241, 246–47 (7th Cir. 1981). In Groves, however, the
court expressly overruled Nuclear Engineering Co. as
“inconsistent with the [Supreme] Court’s approach to fixed
filing deadlines.” 941 F.3d at 322. We find the reasoning in
Groves persuasive and join the Seventh Circuit in holding that
a district court may not utilize recertification to extend section
1292(b)’s ten-day deadline.
To start, we emphasize that “section 1292(b)’s filing
period is jurisdictional,” as “all of the circuits to address the
issue have concluded.” Carr Park, 229 F.3d at 1194; see also
Bowles, 551 U.S. at 209 (“[The Supreme] Court has long held
that the taking of an appeal within the prescribed time is
‘mandatory and jurisdictional.’” (quoting Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam)).7
7
Bowles’s holding that statutory time limits are jurisdictional
implicates statutes like 28 U.S.C. § 1292, which “concern[] an appeal
from one court to another court.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 436 (2011). “The ‘century’s worth of
precedent and practice in American courts’ on which Bowles relied
involved appeals of that type” and, thus, the Supreme Court “did not
15
“Jurisdictional treatment of statutory time limits makes good
sense. . . . Because Congress decides whether federal courts
can hear cases at all, it can also determine when, and under
what conditions, federal courts can hear them.” Bowles, 551
U.S. at 212–13.
The Congress expressly delineated the “conditions” under
which we may accept a petition for permission to appeal. Under
section 1292(b), the ten-day clock begins to run when the
district court first certifies its order for interlocutory appeal.8
And because a “filing deadline prescribed by statute” is
jurisdictional, if ten days elapse and no petition has been filed,
“that . . . necessitates dismissal of the appeal.” Hamer v.
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017);
see Groves, 941 F.3d at 324 (“If the application is not made
within ten days, the order is no longer appealable.”). We are
without power “to create for ourselves otherwise nonexistent
jurisdiction, in a fashion that cannot be grounded in the
statutory text,” Nat’l Black Media Coal. v. FCC, 760 F.2d
1297, 1299 (D.C. Cir. 1985) (emphasis omitted), and, here,
“[t]he statute does not contemplate that the order’s
appealability can be revived by a new certification,” Groves,
941 F.3d at 324.
Indeed, “no exception to the time for filing is set out in the
statute,” Carr Park, 229 F.3d at 1194, even though the
Congress plainly knows how to authorize filing extensions and
has done so elsewhere. A district court may, for example,
hold categorically that every deadline for seeking judicial review in
civil litigation is jurisdictional.” Id. (quoting Bowles, 551 U.S. at 209
n.2).
8
This is true whether the certification is included in the original
order or added by amendment. Either way, “the clock does not start
until the litigant is actually authorized to file a petition.” Groves, 941
F.3d at 319.
16
extend the time for filing a notice of appeal “upon a showing
of excusable neglect or good cause.” 28 U.S.C. § 2107(c). Yet
“no statute gives [it] similar authority to extend the time for
filing a petition for permission to appeal.” Groves, 941 F.3d at
324 (emphasis omitted). Likewise, “the plain language of the
Federal Rules precludes us from enlarging the statutory time
for filing.” Carr Park, 229 F.3d at 1194; see Groves, 941 F.3d
at 323 (“If a litigant asked us to toll the clock, there is no
question that we would have to refuse.”). Federal Rule of
Appellate Procedure 5 makes clear that “[t]he petition must be
filed within the time specified by the statute,” FED. R. APP. P.
5(a)(2), “[a]nd Rule 26(b)(1) reinforces that limit by expressly
prohibiting courts of appeals from extending the time to
petition for permission to appeal,” Groves, 941 F.3d at 323.9
Simply put, the Congress “d[id] not authorize either district
courts or the courts of appeals to extend § 1292(b)’s deadline
for any reason,” Groves, 941 F.3d at 321; see also In re City of
Memphis, 293 F.3d at 348 (“Neither the district court nor the
court of appeals can extend the [ten]-day period.”).
Many of our sister circuits nevertheless allow a district
court to “effectively extend the time for filing a petition . . . by
recertifying its order.” In re Benny, 812 F.2d at 1136 (emphasis
added). In accepting otherwise untimely interlocutory appeals,
these circuits consider various equitable factors, such as the
length of the delay, see Marisol A., 104 F.3d at 528, excusable
neglect and unfair prejudice, see Safety-Kleen, Inc., 274 F.3d
at 867, and judicial efficiency, see In re Benny, 812 F.2d at
1137. But regardless whether these approaches were correct
9
The Parents’ reliance on Rule 4(a)(5), which authorizes the
district court to extend the time to file a notice of appeal in appeals
as of right, is therefore misplaced. Rule 26(b)(1) plainly states that
“the court may not extend the time to file . . . a petition for permission
to appeal.” It is clear, then, that Rule 4 does not apply to a
discretionary appeal like this one.
17
when first articulated, the Supreme Court made clear in Bowles
that federal courts “ha[ve] no authority to create equitable
exceptions to jurisdictional requirements.” 551 U.S. at 214.10
Put differently, a fixed filing period “cannot be enlarged just
because . . . [a] court in its discretion thinks it should be
enlarged,” FTC v. Minneapolis-Honeywell Regulator Co., 344
U.S. 206, 211 (1952), notwithstanding the equitable balance
tips in favor of accepting a tardy petition, cf. Nat’l Black Media
Coal., 760 F.2d at 1299 (“[W]e are bound by the terms of our
jurisdictional grant.”).
The Parents’ remaining arguments are unavailing. First,
they maintain that the question before us “is not about
enlarging time, reopening a filing period, . . . or whether a
district court judge has the authority to extend time to file an
appeal” but, rather, is about whether recertification “moot[s]”
section 1292(b)’s ten-day deadline. Parents’ Reply Br. 1.
Granted, the act of recertifying an order—or vacating and
reentering it—is distinct from expressly providing more time
than the statute allows, as was the case in Bowles. But courts
cannot “moot” a jurisdictional requirement any more than they
can extend or excuse it. If the Parents had moved for an
extension of time within the ten-day period, the district court
would have been powerless to extend the deadline or excuse
compliance on equitable grounds. But the Parents have
achieved the same result by letting the deadline expire and then
obtaining a recertified order, rendering section 1292(b)’s
nondiscretionary time limitation “a nullity” or, at the very least,
10
The Supreme Court consequently overruled the “unique
circumstances” doctrine—an equitable doctrine the Court had
“applied . . . only once in the last half century”—“to the extent [it]
purport[s] to authorize an exception to a jurisdictional rule.” Bowles,
551 U.S. at 214.
18
“within the discretion of a district court.” Baldwin Cty., 466
U.S. at 162 (Stevens, J., dissenting).
“[W]hen a jurisdictional statute sets a firm deadline,”
however, “courts have no authority to extend it.” Groves, 941
F.3d at 323 (citing Bowles, 551 U.S. at 209). Accepting the
Parents’ position would elevate form over function by
endorsing “the fiction that recertifying an order isn’t the same
thing as granting more time.” Id. at 324. In fact, it is evident
from the Parents’ briefs that the line they draw between a
recertified order and an order granting more time is illusory.
They concededly “sought an extension” from the district court,
Parents’ Br. 15, but persist in arguing that the recertified order
“did not extend the time . . . to file,” Parents’ Reply Br. 6. Their
attempt to characterize the order any differently is simply a
veneer, incapable of obscuring the fact that the recertified order
plainly extends the filing period beyond ten days. Substance,
not name or label, is what matters here. Cf. GERTRUDE STEIN,
Sacred Emily, in GEOGRAPHY AND PLAYS 178, 187 (Univ. of
Wis. Press 1993) (1922) (“Rose is a rose is a rose is a rose.”).
We therefore decline their invitation to “permit[] district courts
to do indirectly what they cannot do directly: give litigants
more time to file a petition in the court of appeals.” Groves,
941 F.3d at 321; cf. Milbert v. Bison Labs., Inc., 260 F.2d 431,
435 (3d Cir. 1958) (“[T]he conditions precedent to the granting
. . . of permission to appeal . . . are to be strictly construed and
applied.”).
Our conclusion is consistent with the treatment of filing
periods in analogous contexts. “[T]he mere fact that a judgment
previously entered has been reentered or revised in an
immaterial way does not toll the time within which review must
be sought.” Minneapolis-Honeywell Regulator Co., 344 U.S. at
211. And for interlocutory appeals under Rule 23(f), the filing
period “runs from the order granting or denying class
19
certification” and “[a] later order that does not change the status
quo will not revive the . . . time limit.” In re DC Water & Sewer
Auth., 561 F.3d 494, 496 (D.C. Cir. 2009) (quoting Gutierrez
v. Johnson & Johnson, 523 F.3d 187, 193 (3d Cir. 2008)).11
Section 1292(b) requires the filing of a petition for permission
to appeal within ten days and a court cannot give litigants more
time merely by recertifying or reentering its original
certification order.12
The Parents also point out that they sought recertification
only one day after the filing period expired. But a prompt
attempt to rectify the mistake does not negate the fact that
“timely filing . . . is a jurisdictional requirement.” Bowles, 551
U.S. at 214. “Deadlines are by nature arbitrary, which can make
dismissal for failure to comply with them seem particularly
harsh.” Groves, 941 F.3d at 323. The filing period at issue in
11
Although Rule 23(f) is a “nonjurisdictional claim-processing
rule,” Nutraceutical Corp., 139 S. Ct. at 714, its deadline “may not
be extended[,] . . . even where good cause for equitable tolling might
otherwise exist,” id. at 715.
12
Here, the district court’s recertified order—which simply
affirmed “that the original justifications for granting a certification
of appeal remain valid,” S.A. 121—did not “revise[]” its original
order in a “[]material way,” Minneapolis-Honeywell Regulator Co.,
344 U.S. at 211, or “change the status quo,” In re DC Water & Sewer
Auth., 561 F.3d at 496. We therefore “do[] not address whether or to
what extent substantive reconsideration of a previously certified
order might allow recertification to restart the clock.” Groves, 941
F.3d at 325 n.6; see Minneapolis-Honeywell Regulator Co., 344 U.S.
at 211–12 (“Only when the lower court changes matters of substance,
or resolves a genuine ambiguity, in a judgment previously rendered
should the period within which an appeal must be taken . . . begin to
run anew.” (footnotes omitted)); cf. Consarc Corp. v. Iraqi Ministry,
27 F.3d 695, 700 (D.C. Cir. 1994) (“A later order that revises an
earlier one only in part preserves the finality of the unrevised
portions.”).
20
Bowles, for example, was not subject to equitable modification
even though the district court’s error caused the defendant to
file a mere two days late. 551 U.S. at 207. Noting the “severe
consequences” of its approach to jurisdictional limitations, the
Supreme Court acknowledged that a few months earlier the
Clerk of Court “refused to accept a petition for certiorari . . .
because it had been filed one day late” and, as a result, the
petitioner “was executed . . . without any Member of th[e]
Court having even seen his petition.” Id. at 212 n.4. If
jurisdictional boundaries do not yield under the weight of a life-
or-death decision, “no result justifies our intervening where we
have not been granted the power to do so.” Groves, 941 F.3d at
323 (citing Steel Co., 523 U.S. at 101–02).
This principle is especially pertinent to an interlocutory
appeal, which constitutes an exception to “the general rule that
a party is entitled to a single appeal, to be deferred until final
judgment has been entered.” Dig. Equip. Corp. v. Desktop Dir.,
Inc., 511 U.S. 863, 868 (1994) (citation omitted). In view of
“the usual benefits of deferring appeal until litigation
concludes,” Mohawk Indus. v. Carpenter, 558 U.S. 100, 107
(2009), the limitations on interlocutory appeals are
“purposefully unforgiving,” Nutraceutical Corp., 139 S. Ct. at
716. Strictly policing interlocutory jurisdiction in this manner
is unlikely to penalize late-filing litigants permanently.
Whereas “a litigant who loses the opportunity to appeal a final
judgment forever loses the ability to appeal, . . . a litigant who
loses the opportunity to file an interlocutory appeal has another
chance later.” Groves, 941 U.S. at 324; see Consarc Corp., 27
F.3d at 700 (“[T]he question is simply whether the order will
be considered then or now.”).
Indeed, our decision does not leave the Parents without
options. They recognize that “many of the[] issues” raised in
this appeal could “be reviewed . . . after final judgment,”
21
notwithstanding “it would be much more difficult” if Karzai is
“dismissed from this case.” Parents’ Br. 12. And the failure to
perfect service by Twitter does not ensure Karzai’s dismissal.
The Parents can still “seek leave to serve [Karzai] via
publication,” S.A. 106, or can resort to another service method
with the district court’s approval.
“If rigorous rules like the one applied today are thought to
be inequitable, Congress may authorize courts to promulgate
rules that excuse compliance with the statutory time limits.”
Bowles, 551 U.S. at 214. Until then, filing a petition for
permission to appeal outside section 1292(b)’s ten-day filing
period is an “error . . . of jurisdictional magnitude,” Bowles,
551 U.S. at 213, that mandates dismissal, see id. (“[W]hen an
‘appeal has not been prosecuted in the manner directed, within
the time limited by the acts of Congress, it must be dismissed
for want of jurisdiction.’” (quoting United States v. Curry, 47
U.S. 106, 113 (1848))). A litigant cannot elude the strictures of
section 1292(b) and “make an end-run around this limit,”
Groves, 941 F.3d at 324, simply by obtaining recertification of
an order for interlocutory appeal.
For the foregoing reasons, we dismiss the petition for
permission to appeal in No. 19-8004 and the related appeal in
No. 19-7083.
So ordered.