Comments on: A move to salvage a big antitrust case

By: Richard Samp

Richard Samp — Wed, 02 Aug 2006 17:13:39 +0000

28 U.S.C. Sec. 2101(c) provides that a writ of certiorari “shall be . . . applied for within ninety days after the entry of such judgment or decree. A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days.” That language makes reasonably clear that the Court possesses the raw power (i.e., the jurisdiction) to accept late-filed petitions, and that its power is not dependent on whether the motion for an extension is filed before or after the 90-day period has expired.

By: Kent Scheidegger

Kent Scheidegger — Tue, 01 Aug 2006 18:43:36 +0000

“Clearly correct,” Richard? The guru does not agree. See again, R. Stern, et al., Supreme Court Practice § 6.1(d), pp. 348-349 (8th ed. 2002).

BTW, Stern et al. give a more definitive answer to Marc’s question. “No such motion has yet been granted.” Ibid.

I do agree with Richard, though, that the fact this is not a final judgment means that the court would not exercise its discretion to grant relief if this case if it had such discretion.

By: Richard Samp

Richard Samp — Tue, 01 Aug 2006 18:24:35 +0000

I am unaware of any instances in which the Court has allowed a petition to be filed out of time. But I am aware of a number of instances in which the Court granted motions to file briefs out of time. Northwest is clearly correct that the filing deadline for petitions is not in any way “jurisdictional”; accordingly, I can’t think of any good reason to apply different standards to the two situations. Obviously, the Court will never adopt a practice of allowing late-filed petitions as a matter of course. But why not permit late filings when the excuse is sufficiently strong and the respondent cannot demonstrate prejudice? A showing a prejudice (by either party) would be particularly difficult in this case, given that Northwest can always file another petition if and when the Sixth Circuit affirms a final judgment entered against Northwest.

By: Kent Scheidegger

Kent Scheidegger — Tue, 01 Aug 2006 18:20:18 +0000

When I was a corporate lawyer in the mid-1980s, one of my opponents blew the deadline by FedEx-ing the petition instead of mailing it. (The rule has since been amended.) He made a motion similar to the one made by Northwest in this case. The clerk told me he had not seen such a motion granted in his 15 years at the Court. To the best of my knowledge, none has been granted since.

So, I believe the answer to Marc’s question is at least 35 years and maybe never.

By: Marc Shepherd

Marc Shepherd — Tue, 01 Aug 2006 17:29:24 +0000

When was the last time the Court granted a motion to file out-of-time? I can’t recall an instance.

By: Snowball007

Snowball007 — Tue, 01 Aug 2006 05:09:39 +0000

Wow. There but for the grace of God go I.

Kent S. is right. The Court never allows late petitions in civil cases. If they won’t make an exception for the timeliness rules in capital habeas cases, I doubt they’ll do so for Northwest.

By: federalist

federalist — Tue, 01 Aug 2006 01:45:36 +0000

While we’re on the subject of Coleman, one word comes to mind: “Guilty”.

By: Peter G

Peter G — Tue, 01 Aug 2006 01:09:51 +0000

Indeed they do, Kent, as do the phrases “malpractice insurance” and “how much.” As do the words “Coleman” and “Thompson” — as in post-conviction petition filed one day out of time resulted in procedural default blocking issues in capital case from review in federal habeas. 501 US 478 (1991)

By: Kent Scheidegger

Kent Scheidegger — Mon, 31 Jul 2006 23:39:13 +0000

The words “snowball” and “hell” come to mind. See generally, R. Stern, et al., Supreme Court Practice § 6.1 (8th ed. 2002).