Two former U.S. solicitors general, Harvard law professor Charles Fried and Washington attorney Seth P. Waxman, have urged the Supreme Court to settle a long-standing issue: the nature of the Court’s authority to give lawyers more time to file appeals. In a motion filed Aug. 17, the two advocates requested “a clear and authoritative ruling” on the exact scope of the 90-day filing deadline following a final lower court decision. As regular litigants at the Court, they said it was in their interest “and the interest of all those who practice in this Court” to get a decisive answer.

They submitted their plea to support lawyers for Northwest Airlines, who are seeking to revive a petition for review that was filed five days after the 90-day deadline had passed. (The Northwest lawyers’ filing is discussed in an earlier post, here That motion is docketed as 06-M-7, and the underlying petition was 06-77, Northwest Airlines v. Spirit Airlines) The Fried-Waxman effort could help get the Court’s attention by signaling that more is at stake than the fate of a single case.

When the Court takes up the Northwest plea, now scheduled for the Conference on Sept. 25, it will be considering these separate issues:
1. The relationship between the 90-day filing deadline, spelled out in a federal law, and the 60-day extension period that another statute allows a Justice to grant.
2. Whether any request for an extension of time must be filed within the 90-day period, or is valid as long as it is filed before the full 150-day period — original filing period plus maximum extension.
3. Will the full Court decide this issue by interpreting the statutes and its own rules, or will it defer to a single Circuit Justice — in this instance, Justice John Paul Stevens — to consider whether to allow the late-filed case to proceed.
4. Will the Court accept the Fried-Waxman amici brief, although the Court’s rules do not specify whether such a brief may be filed to support a motion.

Fried and Waxman, like the attorneys for Northwest, do not argue that the 90-day filing period for a certiorari petition is not jurisdictional. That is not the issue, they suggested: “The question presented by the [Northwest] motion is rather what is the correct interpretation of those provisions, however strictly they are to be applied….The Court’s case law has not come close to addressing this question.”

The text of the Fried-Waxman motion can be found here.

The two former solicitors argue that Congress by statute has set only two limits on the Court’s power to extend the deadline to file: the 90-day filing period, and the 60-day extension that a Justice may permit. The fact that Congress has set only two limitations, they contend, “implies that no other limitations apply to that power.”

They acknowledge that the Court has a rule (13.5) that requires that a request to extend the 90-day limit must be filed no later than ten days before that period lapses. But, they go on, “the fact that it is rules of this Court and not the statute itself that addresses the question…would further argue that the statute does not provide the definitive answer.” They add that the Court rule does allow for exceptions in extraordinary cases.

“The Court may choose to exercise its discretion differently in different circumstances, but it is incorrect to suppose that no discretion exists,” they argue. While attorneys must turn square corners, they said, “it is crucial that they know where those corners are.”

They recommend that the Court itself decide the issues, since they are jurisdictional, but also said that at least the Circuit Justice should do so.

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