Joe Diruzzo of Fuerst Ittleman petitions United States Supreme Court for Writ of Certiorari

Jan 12, 2011   

Joe Diruzzo of Fuerst Ittleman petitions United States Supreme Court for Writ of Certiorari [PDF]

On January 10, 2010, Joseph A. DiRuzzo, III, Esq., CPA, an associate at Fuerst Ittleman filed a Petition for a Writ of Certiorari in the United States Supreme Court inLizardo v. United States, available [here].  The Petition seeks to review the decision of the Third Circuit Court of Appeals, where the Third Circuit held, inter alia, that it lack jurisdiction to hear Lizardo’s appeal under Federal Rule of Appellate Procedure 4, available [here]. The Third Circuit expressly noted a split in opinion from the decision of the Sixth Circuit Court of Appeals in the case of National Ecological Foundation v. Alexander, 496 F.3d 466 (6th Cir. 2007).

The background of the case is as follows.  Lizardo sought to vacate his sentence via collateral attack pursuant to 28 USC sec. 2255.  The District Court of the Virgin Islands denied Lizardo’s sec. 2255 petition.  Lizardo then filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e), commonly referred to as a motion for reconsideration. At the time of the litigation before the District Court a motion for reconsideration had to be file within 10 days of the final judgment to be timely (currently the time for a motion for reconsideration is 28 days). The Defendant, the  United States, did not object to the motion for reconsideration on timeliness grounds.  The District Court then denied the motion for reconsideration on the merits.

Lizardo then filed a notice of appeal with the Third Circuit.  The United States, at that point, first objected to the notice of appeal as being untimely as defined in Federal Rule of Appellate Procedure 4 and claimed that the Third Circuit lacked jurisdiction to hear Lizardo’s appeal.  In coming to its conclusion that it lacked jurisdiction to hear Lizardo’s appeal, the Third Circuit noted that notwithstanding that motion may be "timely" for district court litigation, it is not necessarily "timely" for circuit court litigation.  The reason that Lizardo’s motion for reconsideration was "timely" at the district court level was that motions for reconsideration, and the then 10 day time limitation, were not founded in statute and hence not jurisdiction.  Rather, motions for reconsideration were based on the rules enabling provisions, and objections based on lack of timeliness are subject to forfeiture by the opposing party is not properly raised.  In 2004 the U.S. Supreme Court issued its decision in Kontrick v. Ryan, 540 U.S. 443 (2004), announced the new "claims-processing" jurisprudence.  Subsequently in 2005 and 2007 the Supreme Court further expounded on the "claims-processing" rules in Eberhart v. United States, 546 U.S. 12 (2005) and Bowel v. Russell, 551 U.S. 205 (2007).

However, the Third Circuit in its decision ruled, in direct conflict with the Sixth Circuit in National Ecological Foundation, that a party could raise a timeliness objection in the first instance at the Courts of Appeals.  The Third Circuit then described its rationale why it departed from the Sixth Circuit.  The Third Circuit took exception to the Sixth Circuit’s approach claiming that there would be a disparity in treatment in the six types of post-judgment motions addressed in Federal Rule of Appellate Procedure 4(a)(4)(A), and the recent amendments to the Rules of Appellate procedure sought to standardize the time in which post-judgment motions must be made.  Additionally, the Third Circuit noted that the Sixth Circuit’s approach produced uncertainty in the appellate timeline.  Finally the Third Circuit quoted to its prior decision in Guitierrez v. Johnson & Johnson, 523 F. 3d 187 (3d Cir. 2008), for the proposition that "the fact that [a] motion was timely for the purposes of the District Court’s schedule does not necessarily made it timely for an appeal to the Court."

Interestingly, Judge Jordan authored both a concurrence and a dissent, concurring that the Court lacked jurisdiction over the appeal of the denial of the 28 USC sec. 2255 petition, but not over the appeal of the denial of the motion for reconsideration.  In Judge Jordan’s dissent, he reaches the same conclusion regarding jurisdiction that the Sixth Circuit reached.

In Lizardo’s Petition for a Writ of Certiorari filed with the U.S.Supreme Court the following highly technical questions were presented for the Court’s consideration:

1.         Whether, in light of this Courts holding in Kontrick v. Ryan, 540 U.S. 443 (2004), and its progeny, the Court of Appeals erred in concluding that when a party forfeits an objection to the untimeliness of a motion at the trial level, that forfeiture does not operate as a bar to a subsequent untimeliness objection at the appellate level, operating to cause the notice of appeal to be “untimely” for the purpose of Fed. R. App. 4, which is also contrary to a decision of another circuit.

2.         Whether, in light of this Courts holding in Kontrick, supra, and its progeny, the Court of Appeals erred in failing to adopt the position of the dissenting opinion which concluded that the Court of Appeals had jurisdiction over Petitioners appeal from the trial courts denial of Petitioners deemed timely motion for reconsideration, which is also contrary to a decision of another circuit.

It remains to be seen if the U.S. Supreme Court will accept jurisdiction, but the Petition ended with the following passage that demonstrates the importance of this issue:

"[T]he determination of a “timely” appeal for Rule 4 purposes is a recurring issue; an issue that potentially affects every appeal before the Circuit Courts, and in turn affecting the number of cases [the U.S. Supreme] could potentially review on the merits.  [The U.S. Supreme Court] should grant the instant Petition to address this extremely important issue of federal procedural law."

The attorneys at Fuerst Ittleman handle complex issues of federal litigation at the District Court, Circuit Court, and if necessary in the U.S. Supreme Court.