Another Court Says No Restarting the § 1292(b) Clock

In Strange v. Islamic Republic of Iran, the D.C. Circuit held that district courts cannot “recertify” an order and thereby restart the ten-day window for seeking permission to appeal under 28 U.S.C. § 1292(b). The district court in Strange had rejected the plaintiffs’ efforts to serve process on former President of Afghanistan Hamid Karzai via Twitter. The district court also certified that decision for an immediate appeal. But the plaintiffs missed the deadline for filing their petition to appeal. So the district court recertified its decision and the plaintiffs filed a timely petition. The D.C. Circuit held that this practice of recertifying orders was nothing more than an improper attempt to extend the deadline for seeking permission to appeal under § 1292(b). That deadline is jurisdictional, and courts cannot extend it. So the recertification was ineffective, and the petition to appeal was late.

The D.C. Circuit thus joined the Seventh Circuit in rejecting the tactic of restarting the § 1292(b) clock by recertifying an order. Until recently, several other courts (and Federal Practice & Procedure) have sanctioned this tactic. But courts have had to reexamine the issue in light of the Supreme Court’s recent efforts to delineate which rules are (and aren’t) jurisdictional. For now, a circuit split exists. But other circuits will probably have to wrestle with this issue soon.

The Strange Litigation

Strange involved a suit by the survivors of American servicemembers whose helicopter was shot down in Afghanistan. The survivors sued (among others) former President of Afghanistan Hamid Karzai, alleging that he sold the servicemembers’ location and other classified information. Serving Karzai, however, proved difficult. The plaintiffs eventually sought permission from the district court to serve him via Twitter. The district court denied that request without prejudice, concluding that Twitter was unlikely to give Karzai notice of the lawsuit.

At the plaintiffs’ request, the district court certified its decision for an immediate appeal under § 1292. The plaintiffs then had ten days to file a petition to appeal with the D.C. Circuit. But they didn’t do so. Instead, a day after their petition to appeal was due, the plaintiffs asked the district court to recertify its order, thereby restarting the ten-day clock. The district court abided, “concluding that the original justifications for granting a certification of appeal remain valid.” (Quotation marks omitted.) The plaintiffs then petitioned the D.C. Circuit for permission to appeal.

The D.C. Circuit Says No Recertifying to Restart § 1292(b)

The D.C. Circuit held that the district court could not restart the § 1292(b) clock by recertifying its order. So the plaintiffs’ petition for permission to appeal was late.

Baldwin County

As a preliminary matter, the D.C. Circuit rejected the argument that the Supreme Court’s decision in Baldwin County Welcome Center v. Brown implicitly endorsed the recertification tactic. In his Baldwin County dissent, Justice Stephens pointed out that the district court had recertified the order under review nine months after initially certifying it. And he said that he “concur[red] in the majority’s holding that there is jurisdiction”:

I am presently persuaded by the view, supported by the commentators, that interlocutory appeals in these circumstances should be permitted, notwithstanding the fact that this view essentially renders the 10-day time limitation, if not a nullity, essentially within the discretion of a district court to extend at will.

Some courts have relied on Baldwin County in holding that recertification restarts the § 1292(b) clock.

The problem with Baldwin County, the D.C. Circuit pointed out, is that the majority never addressed § 1292(b) or appellate jurisdiction. Even if the Court implicitly addressed the issue by reviewing the merits, its silence did not create binding precedent. In other words, Baldwin County was at most a “drive-by jurisdictional ruling lacking precedential effect.”

The Jurisdictional Nature of § 1292(b)

Turning to § 1292(b), the D.C. Circuit recognized that other courts of appeals have allowed district courts to recertify orders and restart the § 1292(b) clock. But, the court pointed out, all of those decisions predate Bowles v. Russell and the Supreme Court’s efforts to clean up the law on which rules are jurisdictional.

Bowles emphasized that federal courts lack the power to create exceptions to jurisdictional deadlines. Section 1292(b)‘s deadline is jurisdictional. That means courts cannot excuse noncompliance with the deadline or create equitable exceptions to it. Recertifying to restart the § 1292(b) clock is effectively extending the filing deadline. The D.C. Circuit rejected the plaintiffs’ efforts to recharacterize the recertification as doing something other than extending the filing deadline. Whatever you call it, recertification is effectively an extension. And district courts cannot extend the time for filing a § 1292(b) petition.

A Deepened Split on Restarting via Recertification

So now two courts of appeals—the Seventh and D.C. Circuits—hold that district courts cannot recertify their decisions to restart the § 1292(b) clock. As Strange noted, other courts’ decisions to the contrary predate Bowles. So for now, there appears to be a circuit split; other circuits still have law on the books that sanctions recertification. But those circuits will likely have to reexamine the issue once it comes up. And the courts of appeals might clean up this split on their own. After all, the Seventh Circuit overruled its pre-Bowles decisions on this issue. Perhaps we will see the same in other circuits.

Thanks to Howard Bashman for sending this case my way.

Strange v. Islamic Republic of Iran, 2020 WL 3886202 (D.C. Cir. July 10, 2020), available at the D.C. Circuit and Westlaw.