United States v. Eric Kalb

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 17-1333
_______________
UNITED STATES OF AMERICA,
Appellant
v.
ERIC KALB
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-16-cr-00012-001)
District Judge: Honorable Gerald A. McHugh
_______________
Argued: November 6, 2017
Before: JORDAN, HARDIMAN, and
SCIRICA, Circuit Judges.
(Opinion Filed: May 31, 2018)
Louis D. Lappen
Acting United States Attorney
Robert A. Zauzmer [ARGUED]
Denise S. Wolf
Office of the United States Attorney
for the Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellant
Brett G. Sweitzer [ARGUED]
Leigh M. Skipper
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
SCIRICA, Circuit Judge
In this government appeal under 18 U.S.C. § 3731, we
must decide if a motion for reconsideration, filed after the
statutory appeal period elapsed but considered on the merits,
nonetheless keeps the appeal period from expiring. Section
3731 imposes a thirty-day filing requirement, which can be
stopped by a timely filed motion for reconsideration. In this
case, the government filed a motion for reconsideration more
2
than thirty days after the District Court entered an order
granting defendant-appellee Eric Kalb’s motion to suppress.
The District Court denied the motion for reconsideration on
the merits, and the government appealed both orders.
Based on the statute’s text and structure, recent
clarifying opinions from the Supreme Court, and legislative
history, we believe the thirty-day period for appeal in § 3731
is jurisdictional. As to the timeliness of the government’s
motion, we conclude that a timely motion for reconsideration
under § 3731, for the purpose of rendering the order non-
final, is one made within the thirty-day appeal period. To
hold otherwise would rejuvenate an extinguished appeal
period. Accordingly, we will dismiss for lack of jurisdiction
the government’s appeal of the order granting Kalb’s
suppression motion. We will affirm the denial of the
government’s motion for reconsideration.
I.
Eric Kalb was stopped by Upper Merion Township
police in the early morning hours of September 13, 2014.
Prior to that stop, around 4:00 a.m., an unidentified caller to
the Upper Montgomery County 911 Call Center reported that
a man had been electrocuted near Valley Forge Park. He also
stated the man “may have been scrapping.”1 App. 289.
When asked for details, the caller was elusive. He claimed he
was calling from a store but that the store was closing. He
also refused to give his name and professed ignorance of the
1
“Scrapping” refers to the removal and sale of salvageable
scrap metals. “Scrapping” can be criminal if the metals are
removed from private property.
3
model of vehicle he was driving. Police were sent to the
scene of the electrocution and to the unidentified caller’s
location, which police identified as a fast food restaurant. At
Valley Forge Park, officers found a deceased man next to an
electrical box.
At the restaurant, the responding officer spoke with a
security guard who said a white male driving a small Ford
pickup truck had recently used the phone and driven away
onto Markley Street. The identifying information was
broadcast over the police radio. Approximately four minutes
later and only four blocks from the unidentified caller’s
location, an officer spotted a vehicle matching the broadcast
description—driven by Kalb—and stopped it. Kalb
immediately admitted he was the caller and his friend had
been electrocuted. He was taken to the Upper Merion
Township police station to give a statement. Kalb admitted to
driving his friend to the scrapping location, seeing his friend
“sitting in front of an electrical box” while it “was sparking,”
and driving to use a payphone to call 911. App. 85.
Kalb was indicted by a grand jury on charges of
depredation against United States property, 18 U.S.C. § 1361;
destruction of property on United States land, 18 U.S.C.
§ 1363; and aiding and abetting, 18 U.S.C. § 2.2Subsequently, Kalb filed a pretrial motion to suppress
2
The District Court dismissed the § 1361 count for failure to
state an offense. The government did not appeal the
dismissal.
4
evidence obtained after police stopped his vehicle.3 After
conducting a suppression hearing, the court entered an order
granting the motion on October 21, 2016, followed by a
written opinion three days later.
The District Court held a conference call with counsel
and scheduled a status conference for November 29. During
the conference call, the government “sought leave to review
the transcript of the suppression hearing before proceeding.”
App. 13. On November 29, the government filed a motion to
reconsider the suppression order, and Kalb objected to its
filing as untimely. The District Court denied the motion to
reconsider its suppression order, thereby confirming its
suppression of the challenged evidence, on January 13, 2017.
In doing so, it rejected the defense’s untimeliness argument:
Preliminarily, the defense argues that the
Motion should be rejected as untimely. I
disagree. In a conference call with the Court on
October 29, 2016, the Government made clear
that it sought leave to review the transcript of
the suppression hearing before proceeding, and
the Court scheduled a status conference for
November 29. At a minimum, it would be
understandable if the Government interpreted
the Court’s actions as granting it a 30-day
extension. The transcript became available on
November 14, and the Government’s Motion
was filed on November 29, after providing
3
Kalb sought suppression of his statements to police and
physical evidence, specifically window panes found in the
bed of his pickup truck.
5
notice to the Court that it would be slightly
delayed because of a competing trial listing.
Rigid enforcement of the Local Rule[4]
governing timeliness of motions for
reconsideration would be inconsistent with the
collegial manner in which counsel have dealt
with each other, and dealt with the Court.
App. 13. On February 10, the government filed a notice of
appeal from the orders granting suppression and denying
reconsideration.
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231. Our jurisdiction over the government’s appeal of the
suppression order is contested but would arise under 18
U.S.C. § 3731. We exercise plenary review over the question
of whether a notice of appeal was timely filed. State Nat’l
Ins. Co. v. County of Camden, 824 F.3d 399, 404 (3d Cir.
2016).
We have jurisdiction under § 3731 to review the
District Court’s order denying the government’s motion for
reconsideration. “We review the denial of a motion for
reconsideration for abuse of discretion.” United States v.
4
Local Criminal Rule for the United States District Court for
the Eastern District of Pennsylvania 1.2 adopts Local Civil
Rule 7.1(g) covering motions for reconsideration. Per Local
Civil Rule 7.1(g), motions for reconsideration must be served
and filed within fourteen days after entry of the order
concerned.
6
Dupree, 617 F.3d 724, 732 (3d Cir. 2010).
III.
Under § 3731, the government is permitted to file
interlocutory appeals of district court orders suppressing or
excluding evidence:
An appeal by the United States shall lie to a
court of appeals from a decision or order of a
district court suppressing or excluding evidence
or requiring the return of seized property in a
criminal proceeding, not made after the
defendant has been put in jeopardy and before
the verdict or finding on an indictment or
information, if the United States attorney
certifies to the district court that the appeal is
not taken for purpose of delay and that the
evidence is a substantial proof of a fact material
in the proceeding. . . .
The appeal in all such cases shall be taken
within thirty days after the decision, judgment
or order has been rendered and shall be
diligently prosecuted.
18 U.S.C. § 3731 (emphasis added).
A.
We must first determine whether the thirty-day
limitation in § 3731 is a jurisdictional or a claim-processing
rule before addressing the timeliness of the government’s
7
motion for reconsideration. The parties agree the appeal
period is jurisdictional. Appellee’s Response Br. at 16;
Appellant’s Reply Br. at 1. We likewise conclude it is.
The distinction between a jurisdictional rule and a
claim-processing rule is significant. Objections based on a
tribunal’s lack of jurisdiction may be raised at any time, see
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153
(2013), and courts are obligated to raise jurisdictional issues
sua sponte if not raised by the parties, see Hamer v.
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017).
Further, courts may not extend jurisdictional deadlines for
equitable reasons. See United States v. Wong, 135 S. Ct.
1625, 1631 (2015). By contrast, a claim-processing rule
serves “to promote the orderly progress of litigation by
requiring that the parties take certain procedural steps at
certain specified times.” Hamer, 138 S. Ct. at 17 (quoting
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435
(2011)). “[P]roperly invoked,” such rules “must be enforced,
but they may be waived or forfeited” if not raised. See id.(citing Manrique v. United States, 137 S. Ct. 1266, 1271–72)
(2017)). If not barred by Congress, the failure to comply with
claim-processing rules may be excused by courts. See Wong,
135 S. Ct. at 1631; see also Rubel v. Comm’r of Internal
Revenue, 856 F.3d 301, 304 (3d Cir. 2017).
To determine if a statutory deadline is jurisdictional,
we evaluate the “text, context, and relevant historical
treatment.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,
166 (2010) (citing Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393–95 (1982)). The analysis is not always
straightforward. As the Supreme Court has observed,
“[w]hile perhaps clear in theory, the distinction between
8
jurisdictional conditions and claim-processing rules can be
confusing in practice. Courts—including this Court—have
sometimes mischaracterized claim-processing rules or
elements of a cause of action as jurisdictional limitations.”
Id. at 161 (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 511–
12 (2006)).
We are guided in our inquiry by the Supreme Court’s
ruling in Bowles v. Russell, 551 U.S. 205 (2007).5 In Bowles,
the Supreme Court addressed the ability of a district court to
reopen the period for appeal in civil cases. See id. at 207,
5
Bowles followed two cases, Kontrick v. Ryan, 540 U.S. 443(2004), and Eberhart v. United States, 546 U.S. 12 (2005)
(per curiam), in which the Supreme Court attempted to clarify
its previous, “less than meticulous” use of the term
“jurisdictional.” Kontrick, 540 U.S. at 454. In Kontrick, the
Court held that the Federal Rules of Bankruptcy Procedure’s
time constraints for objections to discharge are not
jurisdictional. See id. The time limits at issue were
“prescribed by [the Supreme Court] for ‘the practice and
procedure in cases under title 11.’” Id. at 453 (quoting 28
U.S.C. § 2075). By contrast, the statutory provision granting
jurisdiction did not include a time limitation. Id. The
Supreme Court built on that reasoning in Eberhart. It held
that the time limitation on motions for a new trial under
Federal Rule of Criminal Procedure 33 is not jurisdictional,
see Eberhart, 546 U.S. at 19, because it “closely parallel[ed]”
the rule in Kontrick, which was not derived from a statute, id.
at 15. In doing so, it referenced the “imprecision” of the use
of “the term ‘jurisdictional’ to describe emphatic time
prescriptions in rules of court.” Id. at 18 (quoting Kontrick,
540 U.S. at 454).
9
209. By statute, implemented through Federal Rule of
Appellate Procedure 4(a)(6), a “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.” Bowles, 551 U.S. at
208; see also 28 U.S.C. § 2107(c). But, by order, the district
court in Bowles reopened the appeal period for seventeen
days. 551 U.S. at 207. The appeal was filed within that
seventeen-day window but outside of the statutorily set period
of fourteen days. Id. The Supreme Court concluded the
fourteen-day period was jurisdictional and the appeal was
untimely filed. See id. at 213–14.
In reaching that conclusion, the Court emphasized the
source of the period for appeal and the Court’s prior treatment
of appeal periods. First, the fourteen-day period was
grounded in a statute rather than in a procedural rule. The
Court noted the “jurisdictional distinction between court-
promulgated rules and limits enacted by Congress.” Id. at
211–12. It reasoned, “[b]ecause Congress specifically limited
the amount of time by which district courts can extend the
notice-of-appeal period in § 2107(c), that limitation is more
than a simple ‘claim-processing rule.’” Id. at 213. Second,
the Court drew on its historic treatment of periods for appeal
stating, “[t]his Court has long held that the taking of an
appeal within the prescribed time is ‘mandatory and
jurisdictional.’” Id. at 209 (quoting Griggs v. Provident
Consumer Disc. Co., 459 U.S. 56, 61 (1982) (per curiam)).
The longstanding-treatment of statutorily prescribed appeal
periods as jurisdictional reflects Congress’s ability to
“prohibit[ ] federal courts from adjudicating an otherwise
legitimate ‘class of cases’ after a certain period has elapsed
from final judgment.” Id. at 213. The Supreme Court
recently clarified in Hamer that “[i]f a time prescription
10
governing the transfer of adjudicatory authority from one
Article III court to another appears in a statute, the limitation
is jurisdictional.” 138 S. Ct. at 20.
Following the decision in Bowles, we have treated time
limits set by statutes as jurisdictional in several cases. See
Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 322–23
(3d Cir. 2012) (concluding thirty-day limit in Federal Rule of
Appellate Procedure 4(a)(1)(A) is jurisdictional because it
originates in 28 U.S.C. § 2107(a)); Baker v. United States,
670 F.3d 448, 453–60 (3d Cir. 2012) (holding that the 180-
day limit in Federal Rule of Appellate Procedure 4(a)(6) and
derived from 28 U.S.C. § 2107 is jurisdictional based on
Bowles); In re Caterbone, 640 F.3d 108, 111–12 (3d Cir.
2011) (stating, because 28 U.S.C. § 158 requires that an
appeal be taken in the time provided by Federal Rule of
Bankruptcy Procedure 8002, the time period in Rule 8002 is
jurisdictional); cf. Mathias v. Superintendent Frackville SCI,
876 F.3d 462, 470–72 (3d Cir. 2017) (concluding the period
for filing a cross-appeal under Federal Rule of Appellate
Procedure 4(a)(3) is not jurisdictional because it is not
derived from a statute).6
6
Courts of Appeals have split on this issue. Compare, e.g.,
Stephanie–Cardona LLC v. Smith’s Food & Drug Ctrs., Inc.,
476 F.3d 701, 705 (9th Cir. 2007) (finding Rule 4(a)(3)
nonjurisdictional); Clubside, Inc. v. Valentin, 468 F.3d 144,
162 (2d Cir. 2006) (same); Spann v. Colonial Vill., Inc., 899
F.2d 24, 33 (D.C. Cir. 1990) (same), with, e.g., Jackson v.
Humphrey, 776 F.3d 1232, 1238 n.6 (11th Cir. 2015) (finding
Rule 4(a)(3) jurisdictional); Art Midwest Inc. v. Atl. Ltd.
P’ship XII, 742 F.3d 206, 213 (5th Cir. 2014) (same);
11
As in Bowles, the thirty-day appeal period here is
derived from a statute. See § 3731. Moreover, the appeal
period is included in the same statutory section as the grant of
jurisdiction to courts of appeals. In Wong, the Supreme Court
reiterated the “separation of a filing deadline from a
jurisdictional grant indicates that the time bar is not
jurisdictional,” 135 S. Ct. at 1633, when analyzing the time
limits contained in the Federal Tort Claims Act (FTCA), id. at
1629. The FTCA provides a tort claim against the United
States must be brought “within two years after such claim
accrues” and presented to a federal court “within six months”
following the agency’s adjudication. See 28 U.S.C.
§ 2401(b). While the time limitations are contained in
§ 2401(b), the grant of jurisdiction to federal district courts to
hear FTCA claims is included in a different section of Title
28. See 28 U.S.C. § 1346(b)(1); Wong, 135 S. Ct. at 1633.
Recognizing “the structural divide built into the statute,” the
Court concluded that “[n]othing conditions the jurisdictional
grant on the limitations periods, or otherwise links those
separate provisions.” Wong, 135 S. Ct. at 1633; see also Reed
Elsevier, 559 U.S. at 161–65 (concluding that the location of
a registration requirement in a different section than the grant
of jurisdiction suggested the requirement was not
jurisdictional).
In contrast to the timing requirements at issue in both
Wong and Reed Elsevier, the thirty-day appeal period here is
embedded in the same statutory section that grants
jurisdiction to the court of appeals. From the Criminal
Sullivan v. City of Augusta, 511 F.3d 16, 32 n.7 (1st Cir.
2007) (same).
12
Appeals Act’s passage in 1907, the appeal period has
remained in the same section as the jurisdictional grant.
Compare Criminal Appeals Act, ch. 2564, 34 Stat. 1246(1907), with 18 U.S.C. § 3731. Thus, treating the appeal
period as jurisdictional does not disregard any “structural
divide built into the statute.” Wong, 135 S. Ct. at 1633.
Further, the provision utilizes mandatory, rather than
permissive, terms. While the word “jurisdiction” is not
included in the appeal-period provision, Congress is not
required to “incant magic words in order to speak clearly.”
Auburn Regional, 568 U.S. at 153. The provision provides
“[t]he appeal in all such cases shall be taken within thirty
days after the decision.” § 3731 (emphasis added). Although
not determinative, the “mandatory word ‘shall’ . . . [is a]
word[ ] with jurisdictional import.” Auburn Regional, 568
U.S. at 154. The nature of the prescribed time period in
§ 3731 persuades us that the thirty-day limit is jurisdictional.
That conclusion comports with the Supreme Court’s
“longstanding treatment of statutory time limits for taking an
appeal as jurisdictional.” Bowles, 551 U.S. at 210.7
7
In Henderson, the Supreme Court concluded the period for
appeal from the Board of Veterans’ Appeals to Veterans
Court is not jurisdictional. 562 U.S. at 441. But Henderson
involved an appeal from an agency to an Article I tribunal—
not from a district court to a court of appeals. Id. at 437–38.
The Supreme Court drew on that difference when
distinguishing Bowles and concluding that the limitation at
issue in Henderson was not jurisdictional. Id. at 436(“Bowles concerned an appeal from one court to another
court. The ‘century’s worth of precedent and practice in
13
Our conclusion is bolstered by the legislative history
of § 3731. Prior to passage of the first Criminal Appeals Act
in 1907, the Supreme Court held the government was not
permitted to appeal in a criminal case absent express statutory
authority to do so. See United States v. Sanges, 144 U.S. 310,
321–23 (1892). With the Criminal Appeals Act of 1907,
Congress expressly provided the government with the right to
appeal to the Supreme Court or the circuit courts of appeals in
specified circumstances and stated that “the writ of error in all
such cases shall be taken within thirty days after the decision
or judgment has been rendered and shall be diligently
prosecuted and shall have precedence over all other cases.”
Criminal Appeals Act, ch. 2564, 34 Stat. 1246 (1907)
(emphasis added). In particular, the Act allowed the
government to appeal from dismissal of an indictment, if the
underlying challenge was based on “the invalidity, or
construction of the statute upon which the indictment is
founded.” Id. The House of Representatives initially passed
a version of the bill granting the government the “same right
of review by writ of error that is given to the defendant.”
H.R. Res. 15434, 59th Cong., 40 Cong. Rec. 5408 (1906).
Following amendment by the Senate, the Act was
narrowed to not extend the same appeal rights to the
government and to provide that government appeals should
be taken within thirty days. H.R. Rep. 59-8113, at 2 (1907)
(Conf. Rep.). In United States v. Hark, 320 U.S. 531 (1944),
the Supreme Court interpreted the thirty-day appeal period,
explaining that “[n]either the District Court nor this court has
American courts’ on which Bowles relied involved appeals of
that type.” (quoting Bowles, 551 U.S. at 209–210 & 209 n.2)).
14
power to extend the period.” Id. at 533.
The first Act proved to be unworkable in practice, with
the Supreme Court commenting that it “reflect[ed] no
coherent allocation of appellate responsibility” and was “a
most unruly child that has not improved with age.” United
States v. Sisson, 399 U.S. 267, 307 (1970). In 1970, Congress
significantly amended the Act as part of the Omnibus Crime
Control Act of 1970, Pub. L. 91-644, 84 Stat. 1880. In so
doing, it brought the language of the Act into accordance with
common usage, expanded the government’s ability to appeal,
provided for review by the courts of appeals over orders
previously designated for Supreme Court review, and added
that the Act should be liberally construed. See S. Rep. No.
91-1296, at 2 (1970). However, Congress did not alter the
requirement that such an appeal be diligently prosecuted.
H.R. Res. 17825, 91st Cong. § 42 (1970).
While Congress overhauled the statute in other
respects, it left the thirty-day appeal period intact, despite
prior treatment of that appeal period as jurisdictional by the
Supreme Court. Its only amendment to the thirty-day
provision was changing the phrase “decision or judgment” to
“decision, judgment or order.” Id. Congress’s retention of
the thirty-day period without alteration provides additional
support for the conclusion that the period is jurisdictional.
See Henderson, 562 U.S. at 436 (“When a long line of this
Court’s decisions left undisturbed by Congress has treated a
similar requirement as jurisdictional, we will presume that
Congress intended to follow that course.” (internal quotation
marks and citations omitted)); see also Lorillard v. Pons, 434
U.S. 575, 580 (1978) (“Congress is presumed to be aware of
an administrative or judicial interpretation of a statute and to
15
adopt that interpretation when it re-enacts a statute without
change.”). Based on the statute’s text and structure, recent
case law, and legislative history, we conclude that the thirty-
day period in § 3731 is jurisdictional.8
B.
Typically, the thirty-day appeal period under § 3731
begins when a covered order is entered on the docket. See
United States v. Mallory, 765 F.3d 373, 379–80 (3d Cir.
2014). But if the government timely seeks reconsideration of
the order, it is rendered nonfinal until the court decides the
motion for reconsideration, and the thirty-day appeal period
runs from an order denying the motion. See United States v.
Ibarra, 502 U.S. 1, 6–7 (1991) (per curiam); cf. United States
v. Healy, 376 U.S. 75, 77–78 (1964). Both parties in this case
accept those two propositions.
As noted, Kalb contends the government’s failure to
file a motion for reconsideration within thirty days of the
suppression order’s entry strips us of jurisdiction over the
government’s appeal of the suppression order. In response,
the government argues that the District Court deemed the
motion for reconsideration “timely,” thus satisfying the
prerequisites for stopping the appeal period. As stated, we
conclude that the government must file a motion for
reconsideration within § 3731’s thirty-day period for the
8
In so holding, we join the United States Courts of Appeals
for the Ninth and Tenth Circuits. See United States v. Kim,
298 F.3d 746, 749 (9th Cir. 2002), amended by 317 F.3d 917(9th Cir. 2003); United States v. Cook, 599 F.3d 1208, 1212
(10th Cir. 2010).
16
motion to keep that thirty-day period from expiring.9
Motions for reconsideration or petitions for rehearing
filed within the appeal window are distinguishable from those
that are not because the latter amount to “an attempt to
rejuvenate an extinguished right to appeal.” Healy, 376 U.S.
at 77. In Healy, the Supreme Court addressed whether a
petition for rehearing “renders the judgment not final for
purposes of appeal” under then-Supreme Court Rule 11(2),
which required that an appeal be filed within thirty days. Id.at 77–78. Holding that it did, id. at 80, the Court stated,
“[s]ince the petition for rehearing was filed within 30 days of
the judgment, we are not faced with an attempt to rejuvenate
an extinguished right to appeal,” id. at 77 (emphasis added).
While that statement guides our inquiry, it does not—as Kalb
argues—fully decide the issue because the Supreme Court
considered a petition that was filed within the thirty-day
appeal period. Accordingly, we turn to a survey of our sister
Circuits’ treatment of this issue.
The United States Court of Appeals for the Tenth
Circuit addressed an analogous scenario to this one in United
States v. Martinez, 681 F.2d 1248 (10th Cir. 1982) (per
curiam). In that case, the government attempted to appeal
under § 3731. Id. at 1251. It claimed that its motion for
reconsideration, which was filed more than thirty days after
the appealed order, tolled the appeal period. See id. at 1252.
The Tenth Circuit rejected the argument, stating that § 3731 is
jurisdictional and “a motion for reconsideration does not
9
Because the government has the full thirty days to appeal
following the entry of judgment on a motion for
reconsideration, we will refer to the motion for
reconsideration as preventing the appeal period’s expiration.
17
bring new life to an order unless it is filed within the thirty
day period for taking the appeal running from the date of the
entry of the judgment or order appealed from.” Id. at 1253.
The government attempts to distinguish this case from
Martinez, arguing that the Tenth Circuit’s holding only
applies to motions deemed untimely by the district court. See
Appellant’s Reply Br. at 9. But, in so doing, the government
overlooks two aspects of Martinez. First, the district court
considered the government’s motion for reconsideration and
denied it on the merits, as in this case, despite later
commenting that it was “untimely.” Martinez, 681 F.2d at
1251. Second, the Tenth Circuit did not qualify its statements
by reference to a district court’s determinations of timeliness:
As we have seen from United States v. Healy,
the motion for reconsideration has to be filed
within thirty days following entry of the order
or judgment. The motion for reconsideration
did not breathe new life into the order which
was entered more than thirty days before the
filing of the motion for reconsideration.
Id. at 1253. Accordingly, Martinez is not so easily
distinguished and provides support for Kalb’s position.
When assessing the timeliness of a motion for
reconsideration under § 3731, several of our sister Circuits
have relied on the thirty-day period rather than the district
court’s characterization of the motion, although none
involved a motion filed after the thirty-day appeal period.
See, e.g., United States v. Cook, 599 F.3d 1208, 1212 (10th
Cir. 2010) (“In a criminal case, a timely motion for
reconsideration, defined as one filed within the time to appeal,
18
postpones the time to appeal until the court disposes of the
motion.” (emphasis added)); Canale v. United States, 969
F.2d 13, 15 (2d Cir. 1992) (“While we are unaware of any
rule of criminal or appellate procedure which addresses the
subject of timeliness of a motion for reconsideration,
[n]umerous decisions have found the government’s
interlocutory appeal to be timely . . . when a motion
for . . . reconsideration was filed within thirty days following
the order appealed from.” (internal quotation marks and
citation omitted)); United States v. Vicaria, 963 F.2d 1412,
1414 (11th Cir. 1992) (“A motion for reconsideration in a
criminal case must be filed within the period of time allotted
for filing a notice of appeal in order to extend the time for
filing the notice of appeal. Therefore, in a criminal case, the
government has thirty days in which to seek reconsideration
of a final judgment or other appealable order.” (citation
omitted)).
We find additional support for our conclusion in the
legislative history of § 3731. In April 1967, Representative
Thomas Railsback introduced a bill, H.R. Res. 8654, 90th
Cong., 1st Sess. (1967), to add appeals from suppression
orders to § 3731. In his statements concerning the bill,
Representative Railsback stated that such appeals “must of
necessity be limited by the sixth amendment right to a speedy
trial and the fifth amendment protection against double
jeopardy.” Anti-Crime Program: Hearings Before Subcomm.
No. 5 of the Comm. on the Judiciary, 90th Cong., 1530, 1531
(1967). Representative Railsback emphasized the safeguards
included in the bill, particularly the thirty-day requirement:
It seems also that any action by the Congress to
provide for additional grounds for appeal by the
19
Government in criminal trials must be tightly
drawn and must preserve all of the
constitutional rights of the defendant.
Therefore, I believe certain safeguards in such
appeals are necessary. To make sure that such
appeal does not bring about unnecessary delay,
such appeals must be made within 30 days.
This is already in section 3731 of title 18 and
would apply equally to this new provision.
Id. at 1532 (emphasis added).
The government asserts the Supreme Court has
established “what matters in this situation is not whether a
motion for reconsideration is timely in relation to the original
time for appeal, but whether the motion for reconsideration is
timely under any rule pertinent to such a motion.”
Appellant’s Reply Br. at 5. In support, the government cites
Browder v. Director, Department of Corrections of Illinois,
434 U.S. 257 (1978). In that case, the Supreme Court
addressed whether a motion for reconsideration filed by the
state in habeas proceedings, beyond the ten days allowed by
the Federal Rules of Civil Procedure, tolled “[t]he running of
time for filing a notice of appeal.” Id. at 264. The Court held
that it did not because the motion was “untimely under the
Civil Rules, and therefore did not toll the time for appeal
under Appellate Rule 4(a).” Id. at 267.
Rejecting the state’s contention that the thirty-day
period from Healy and United States v. Dieter, 429 U.S. 6(1976) (per curiam), controlled, the Browder Court stated that
“absent a rule specifying a different time limit, a petition for
rehearing in a criminal case would be considered timely when
20
filed within the original period for review. In a civil case,
however, the timeliness of a motion for rehearing or
reconsideration is governed by Rule 52(b) or Rule 59, each of
which allows only 10 days.” 434 U.S. at 268 (internal
quotation marks and citations omitted). From that statement,
the government extrapolates that the thirty-day appeal period
under § 3731 is only a default presumption that can be
overcome when any other rule, which would make the motion
timely, applies or the district court treats the motion as timely.
But such a reading of Browder turns the logic of the
decision on its head. First, the Browder Court stated that an
untimely motion under the applicable Federal Rule of Civil
Procedure cannot render an order nonfinal:
The rationale behind the tolling principle of
[Rule 4(a)] is the same as in traditional practice:
“A timely petition for rehearing tolls the
running of the [appeal] period because it
operates to suspend the finality of the
. . . court’s judgment, pending the court’s
further determination whether the judgment
should be modified so as to alter its
adjudication of the rights of the parties.” An
untimely request for rehearing does not have the
same effect.
Id. at 267 (emphasis removed and second alteration in
original) (quoting Dep’t of Banking v. Pink, 317 U.S. 264,
266 (1942)). That holding does not prove the converse—that
any motion deemed timely by a district court, even if filed
outside of the thirty-day appeal period, reopens the appeal
window.
21
Second, in Browder, the appeal period was shortened.
Here, the government asks us to expand its statutory period
for appeal. But the thirty-day period in § 3731 is
jurisdictional. See supra Section III.A. To conclude that any
motion for reconsideration, if deemed timely by a district
court, extends the thirty-day period would be an
impermissible extension of our jurisdiction. Furthermore,
that conclusion does not comport with the rationale behind
motions for reconsideration tolling the appeal period under
§ 3731. As the Supreme Court stated in Dieter, “the
consistent practice in civil and criminal cases alike has been
to treat timely petitions for rehearing as rendering the original
judgment nonfinal for purposes of appeal for as long as the
petition is pending.” 429 U.S. at 8.10
But, in this case, the motion for reconsideration was
not filed until the thirty-day appeal period had elapsed. Thus,
for the entire thirty-day appeal period under § 3731, the
suppression order remained final—including the day that
period expired. Contrary to the government’s assertions, this
10
The District Court’s consideration on the merits of the
motion for reconsideration does not affect our conclusion.
Such consideration “cannot override the application of
jurisdictional rules, as both this Court and the Supreme Court
have held.” State Nat’l Ins. Co. v. County of Camden, 824
F.3d 399, 409 (3d Cir. 2016); see also Lizardo v. United
States, 619 F.3d 273, 278 (3d Cir. 2010) (concluding that an
untimely Rule 59(e) motion did not toll the time for filing an
appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)
even if the opposing party did not object and the district court
considered the motion on the merits).
22
scenario equates to “an attempt to rejuvenate an extinguished
right to appeal,” Healy, 376 U.S. at 77, an action we are not
permitted to take.11 Accordingly, we conclude that a motion
for reconsideration must be filed within the thirty-day appeal
period specified in § 3731 in order to keep the appeal period
from expiring.12 Because the government filed its motion for
reconsideration more than thirty days after the suppression
order was entered on the docket, the motion did not prevent
11
As now-Justice Gorsuch stated when addressing whether
the government may file successive motions for
reconsideration under § 3731:
[T]he Supreme Court has unequivocally
directed that jurisdictional filing deadlines are
not susceptible to alteration based on precisely
the sort of equitable considerations that the
government urges on us, explaining that “this
Court has no authority to create equitable
exceptions to jurisdictional requirements.”
Bowles, 127 S. Ct. at 2366. And whatever else
one might think about this command, it surely
must be susceptible to the Rule of the Goose
and Gander and thus apply no less forcefully to
the government than the habeas petitioner.
United States v. Cos, 498 F.3d 1115, 1137 (10th Cir. 2007)
(Gorsuch, J., dissenting).
12
We need not address the potential effect of a motion for
extension of time under Federal Rule of Appellate Procedure
4(b)(4) in this case.
23
the appeal period from elapsing, and we must dismiss the
appeal of that order for lack of jurisdiction.13
IV.
Although we lack jurisdiction to consider the
government’s appeal of the District Court’s order granting
Kalb’s suppression motion, we do have jurisdiction over the
government’s appeal of the District Court order denying its
motion for reconsideration because the government filed its
appeal within thirty days of the issuance of that order. “The
purpose of such a motion is to correct a clear error of law or
to prevent a manifest injustice in the District Court’s original
ruling.” Dupree, 617 F.3d at 732. “Though ‘[m]otions to
reconsider empower the court to change course when a
mistake has been made, they do not empower litigants . . . to
raise their arguments, piece by piece.’” Id. at 732–33
(alteration in original) (quoting Solis v. Current Dev. Corp.,
557 F.3d 772, 780 (7th Cir. 2009)).
We conclude the District Court did not abuse its
discretion in denying the government’s motion. At the
motion to suppress stage, the government contended that
Kalb’s stop was lawful as an investigatory stop under Terry v.
Ohio, 392 U.S. 1 (1968). In its motion for reconsideration,
the government presented two new arguments that were not
previously raised based on Kalb’s use of the word
“scrapping” and an attenuation argument. The government
also advanced a new theory, which it did not previously
13
We recognize that our result may appear to undermine the
collegial nature of the proceedings fostered by the parties and
District Court. But we are barred from evaluating equitable
considerations. See Wong, 135 S. Ct. at 1631.
24
present to the Court, that Kalb was properly stopped as a
witness under Illinois v. Lidster, 540 U.S. 419 (2004). In
denying the motion for reconsideration, the District Court
determined the government’s arguments “could as well have
been made earlier” and were accordingly “not a proper basis
for reconsideration.” App. 14. We agree and find no abuse
of discretion in the District Court’s denial of the motion.
V.
For the foregoing reasons, we will dismiss for lack of
jurisdiction the government’s appeal of the order granting
Kalb’s suppression motion. We will affirm the order denying
the government’s motion for reconsideration.
25