Lizardo v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-2044

JUAN FRANCISCO LIZARDO,

Appellant

v.

UNITED STATES OF AMERICA

On Appeal from the District Court
of the Virgin Islands
(District Court No. 3-02-cv-00155)
District Judge: The Honorable Curtis V. Gomez

Submitted Under Third Circuit LAR 34.1(a)
May 3, 2010

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges

(Filed: August 10, 2010)

1
Nelson L. Jones
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas, Virgin Islands, 00802
Counsel for Appellee

Joseph A. DiRuzzo, III
Law Office of Marjorie Roberts
1 Hibiscus Alley
St. Thomas, Virgin Islands, 00802
Counsel for Appellant

OPINION

SMITH, Circuit Judge.

Juan Francisco Lizardo was convicted of various drug
crimes in the District of the Virgin Islands. He later petitioned
for relief under 28 U.S.C. § 2255. The District Court denied his
petition and he sought and received a certificate of appealability
to this Court.1 Three issues were certified for appeal, but the
first is dispositive: whether Lizardo’s untimely motion for

1
The District Court had jurisdiction over Lizardo’s §
2255 petition under 28 U.S.C. § 1331.

2
reconsideration, see Fed. R. Civ. P. 59(e), tolled the time for
filing a notice of appeal, see Fed. R. App. P. 4(a)(4)(A).2

Rule 59(e) 3 is a claim-processing rule. Accordingly, a
timeliness objection to a motion brought under that rule may be
forfeited if it is not raised in the district court. In this case,
Lizardo’s untimely Rule 59(e) motion was decided, without
objection, by the District Court. The Government, therefore,
forfeited any timeliness objection it could have made at that
stage of the litigation. The forfeiture in the District Court,
however, did not render the Rule 59(e) motion timely for
purposes of Rule 4(a)(4)(A) of the Federal Rules of Appellate
Procedure.4 The Government is free to challenge Lizardo’s

2
The other issues certified for appeal were whether
Lizardo’s notice of appeal was timely filed under the prison
mailbox rule and whether the District Court applied the correct
standard in evaluating Lizardo’s claim that his trial counsel
deprived him of the right to testify on his own behalf. Lizardo
concedes the former issue and we lack jurisdiction to address the
latter issue.
3
Unless otherwise noted, all references to “Rule 59”
refer to Rule 59 of the Federal Rules of Civil Procedure as it
existed in 2008.
4
Unless otherwise noted, all references to “Rule 4” refer
to Rule 4 of the Federal Rules of Appellate Procedure as it
existed in 2008.

3
reliance on Rule 4(a)(4)(A)’s tolling provision—which requires
that the underlying Rule 59(e) motion that initiated the tolling
have been timely filed, Fed. R. App. P. 4(a)(4)(A)—in this
Court. As such, the Government’s challenge in this Court to
Lizardo’s invocation of Rule 4(a)(4)(A)’s tolling provision is
meritorious. Without the benefit of tolling, Lizardo’s notice of
appeal was untimely and his appeal must be dismissed for lack
of jurisdiction. See Fed. R. App. P. 4(a)(1)(B).

I.

Lizardo was convicted of conspiracy to possess with
intent to distribute cocaine, 21 U.S.C. § 846, conspiracy to
import cocaine into the United States, id. § 963, and possession
with intent to distribute, id. § 841(a)(1). On August 16, 2002,
Lizardo moved to vacate his sentence under 28 U.S.C. § 2255.
The District Court denied the petition on January 25, 2008. On
February 29, 2008, Lizardo sought reconsideration, which was
denied on March 17, 2008. A few weeks later, on April 7, 2008,
Lizardo filed his notice of appeal, challenging the denial of his
motion for reconsideration and his § 2255 petition. On May 16,
2008, Lizardo sought a certificate of appealability from this
Court. We granted one on September 29, 2008.5

5
The certificate of appealability did not certify the issue
of whether the District Court erroneously denied Lizardo’s
motion for reconsideration and Lizardo fails to raise that issue
in this appeal. Therefore, we need not address it. 28 U.S.C. §

4
 II.

In a civil case involving the United States, a notice of
appeal must be filed within 60 days after the judgment or order
appealed from is entered. Fed. R. App. P. 4(a)(1)(B). In some
circumstances, where a party has timely filed a post-judgment
motion in the district court, the deadline for filing a notice of
appeal may be tolled until that motion has been decided:

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any
of the following motions under the Federal Rules
of Civil Procedure, the time to file an appeal runs
for all parties from the entry of the order
disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional
factual findings under Rule 52(b),
whether or not granting the motion
would alter the judgment;

(iii) for attorney’s fees under Rule
54 if the district court extends the

2253(c)(3); Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir.
2004); 3d Cir. L.A.R. 22.1(b); see Fed. R. App. P. 28(a)(5).

5
 time to appeal under Rule 58;

(iv) to alter or amend the judgment
under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the
motion is filed no later than 10 days
after the judgment is entered.

Fed. R. App. P. 4(a)(4). At the time relevant to this appeal, Rule
59(b) required a party seeking reconsideration of an order to file
its Rule 59(e) motion within ten days of that order. Fed. R. Civ.
P. 59(b).

In Lizardo’s case, the following timeline of events
unfolded:

January 25, 2008 The District Court denied Lizardo’s
§ 2255 petition.

February 8, 2008 Deadline for filing a motion for
reconsideration under Rule 59(e)
(ten days from the January 25, 2008
order).

February 29, 2008 Lizardo moved for reconsideration
under Rule 59(e).

6
March 17, 2008 The District Court denied Lizardo’s
motion for reconsideration.

March 25, 2008 If there is no tolling under Rule
4(a)(4)(A), then the time for filing
a notice of appeal expires (60 days
from the January 25, 2008 order).

April 7, 2008 Lizardo filed a notice of appeal to
this Court.

May 16, 2008 If there is tolling under Rule
4(a)(4)(A), then the time for filing
a notice of appeal expires (60 days
from the March 17, 2008 order).

If Lizardo’s motion for reconsideration tolled the time for filing
a notice of appeal, his notice of appeal was timely. If it did not,
his notice of appeal was untimely and we lack jurisdiction. Fed.
R. App. P. 4(a)(1)(B); 28 U.S.C. § 2107(b); see Bowles v.
Russell, 551 U.S. 205, 212-13 (2007) (explaining that
procedural rules grounded in statutes are jurisdictional).

Lizardo argues that the Government waived its right to
object to the tolling of the notice of appeal deadline because it
did not object to his untimely Rule 59(e) motion in the District

7
Court.6 The “question [of] whether [Lizardo]’s notice of appeal
was timely is a question of law over which we exercise plenary
review.” DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d
209, 213 (3d Cir. 2007).

Rule 59(e) is a claim-processing rule, not a jurisdictional
rule, so objections based on the timeliness requirement of that
rule may be forfeited. But the forfeiture of a timeliness
objection in the district court does not render an untimely
motion timely for purposes of Rule 4(a)(4)(A) in this Court. As

6
In the alternative, Lizardo argues that Rule 4 denied
him due process because it did not provide him enough time to
file a motion for reconsideration. Because that issue was not
certified for appeal, we need not address it. 28 U.S.C. §
2253(c)(3); Villot, 373 F.3d at 337 n.13; 3d Cir. L.A.R. 22.1(b);
see Fed. R. App. P. 28(a)(5). We also note that Lizardo’s
alleged due process violation is based on assumptions that he
concedes are unsupported by the record. Lizardo assumes that
(1) the January 25, 2008 order was not mailed to him until
January 28, 2008, (2) it would take five to seven business days
for the January 25, 2008 order to reach an address in the Virgin
Islands, and (3) delivery to a prison inmate would take
additional time. Based on these assumptions, he argues that it
would not be unreasonable to find that the January 25, 2008
order did not arrive until after February 11, 2008. We decline
to engage in such speculation. Moreover, even if we credited
these assumptions and evaluated his claim on the merits, Lizardo
does not cite any supporting legal authority for his claim.

8
such, the Government’s failure to object to Lizardo’s untimely
Rule 59(e) motion in the District Court did not foreclose its
ability to challenge the timeliness of that motion for the
purposes of tolling under Rule 4(a)(4)(A).

A.

Lizardo’s Rule 59(e) motion was untimely. He filed his
motion for reconsideration over a month after the District Court
denied his § 2255 petition, well after the ten days provided by
the rule. Fed. R. Civ. P. 59(b). The Government did not object
to Lizardo’s motion as untimely and the District Court denied
the motion on the merits.

Under our pre-Bowles precedent, “any substantive action
a court t[ook] on an untimely motion [would have been deemed]
a nullity.” Smith v. Evans, 853 F.2d 155, 159 (3d Cir. 1988)
(internal quotation marks omitted). Thus, “[a]n untimely
motion, even if acted upon by the district court, [could not] toll
the time for filing a notice of appeal,” id. at 157. We reached
these conclusions based on our understanding that a “Rule 59(e)
motion must be served within ten days of entry of judgment”
because “[t]he ten day period is jurisdictional, and cannot be
extended in the discretion of the district court.” Id. (internal
quotation marks omitted). Were we to follow this approach, we
would dismiss Lizardo’s appeal for lack of jurisdiction because
Rule 59(e)’s ten day time limit, applied as a jurisdictional rule,
would have rendered the motion for reconsideration a nullity.

9
Lizardo would not be able to invoke Rule 4(a)(4)(A)’s tolling
provision and his notice of appeal would be untimely. While the
result we reach today is the same, we can no longer treat Rule
59(e) as a jurisdictional rule, nor view Lizardo’s untimely
motion for reconsideration as a nullity.

What constitutes a jurisdictional rule has undergone
significant change in recent years. The Supreme Court’s
decisions in Bowles, Eberhart v. United States, 546 U.S. 12
(2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443 (2004),
require us to depart from our pre-Bowles approach.7 Rule 59(e)
can no longer be deemed a jurisdictional rule. The Bowles
Court explained that time limits that are not based on a statute,
such as the one governing Rule 59(e), are not jurisdictional
rules, but claim-processing rules. See Bowles, 551 U.S. at
210-11. “[S]tatute-based filing period[s],” on the other hand,
are jurisdictional. Id. at 212. Compare id. at 213 (holding that
failure to file notice of appeal in accordance with 28 U.S.C. §
2107(c) and Rule 4(a)(6) resulted in an error of “jurisdictional

7
Although Internal Operating Procedure 9.1 generally
bars us from “overrul[ing] the holding in a precedential opinion
of a previous panel” without “en banc reconsideration,” 3d Cir.
IOP § 9.1, “a panel of our Court may decline to follow a prior
decision of our Court without the necessity of an en banc
decision when the prior decision conflicts with a Supreme Court
decision.” United States v. Tann, 577 F.3d 533, 541 (3d Cir.
2009).

10
magnitude”), with Kontrick, 540 U.S. at 452-56 (holding that
Rule 4004 of the Federal Rules of Bankruptcy Procedure was
not jurisdictional in part because it was not grounded in a
statute).

According to Bowles, “court-promulgated rules,” 551
U.S. at 211-12, are distinct from “limits enacted by Congress,”
and should not be treated as jurisdictional rules, id. at 212. For
example, “the rule-based time limit for criminal cases,” a court-
promulgated rule, “may be waived because ‘ . . . procedural
rules adopted by the Court for the orderly transaction of its
business are not jurisdictional and can be relaxed by the Court
in the exercise of its discretion . . . .’” Id. (quoting Schacht v.
United States, 398 U.S. 58, 64 (1970)). Similarly, Rule 4004 of
the Federal Rules of Bankruptcy Procedure, a rule that sets a
deadline for objecting to a debtor’s discharge, Fed. R. Bankr. P.
4004, was deemed a claim-processing rule, and did not affect a
court’s jurisdiction. Kontrick, 540 U.S. at 452-56.

Rule 59(e) is akin to Rule 4004 of the Federal Rules of
Bankruptcy Procedure. Both rules were promulgated by the
Supreme Court under the Rules Enabling Act. Compare 28
U.S.C. §§ 2071-2072 (Rule 59), with 28 U.S.C. § 2075 (Rule
4004). Neither rule extends or limits the jurisdiction of the
courts. Kontrick, 540 U.S. at 453 (noting that “it is axiomatic
that [rules promulgated under the Rules Enabling Act] do not
create or withdraw federal jurisdiction”) (internal quotation
marks omitted). Compare Fed. R. Bankr. P. 9030 (“The[]

11
[Federal Rules of Bankruptcy Procedure] shall not be construed
to extend or limit the jurisdiction of the courts or the venue of
any matters therein.”), with Fed. R. Civ. P. 82 (“The[] [Federal
Rules of Civil Procedure] do not extend or limit the jurisdiction
of the district courts or the venue of actions in those courts.”).
Therefore, like Bankruptcy Rule 4004, Rule 59(e)’s filing
deadline is a “claim-processing rule[] that do[es] not delineate
what cases . . . courts are competent to adjudicate.” Kontrick,
540 U.S. at 454;8 Nat’l Ecological Found. v. Alexander, 496
F.3d 466, 475-76 (6th Cir. 2007) (holding that Rule 59(e) is a
claims processing rule); First Ave. W. Bldg., LLC v. James (In
re Onecast Media, Inc.), 439 F.3d 558, 562 (9th Cir. 2006)
(same); see Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 618
(8th Cir. 2008) (holding that Fed. R. Civ. P. 50(b) is a claim-
processing rule).

Because Rule 59(e) is a claim-processing rule, an
objection based on the untimeliness of a Rule 59(e) motion may
be forfeited. See Eberhart, 546 U.S. at 19. “[W]here the
Government fail[s] to raise a defense of untimeliness until after
the District Court ha[s] reached the merits, it forfeit[s] that
defense.” Id. In this case, the District Court denied the motion
for reconsideration after considering its merits. Thus, the

8
A similar comparison can be made to the rule at issue
in Eberhart. See 546 U.S. at 15-20. There, the Supreme Court
held that Rule 33 of the Federal Rules of Criminal Procedure is
a claim-processing rule. Id. at 13.

12
Government forfeited its ability to challenge Lizardo’s motion
for reconsideration as untimely in the District Court.

Having established that Rule 59(e) is a claim-processing
rule and that a timeliness objection to a Rule 59(e) motion may
be forfeited, we turn to the question of whether the
Government’s failure to object to Lizardo’s untimely motion for
reconsideration in the District Court forfeited that objection for
purposes of Rule 4(a)(4)(A).

B.

Rule 4(a)(4)(A)(iv) states that “[i]f a party timely files in
the district court [a motion to alter or amend the judgment under
Rule 59], the time to file an appeal runs for all parties from the
entry of the order disposing of the last such remaining
motion[.]” Fed. R. App. P. 4(a)(4)(A) (emphasis added). An
untimely Rule 59(e) motion does not toll the time for filing an
appeal under Rule 4(a)(4)(A). This is true even if the party
opposing the motion did not object to the motion’s untimeliness
and the district court considered the motion on the merits. See
Browder v. Ill. Dep’t of Corr., 434 U.S. 257, 264-65 (1978);
Garcia-Velazquez v. Frito Lay Snacks Carribean, 358 F.3d 6,
10-11 (1st Cir. 2004); Panhorst v. United States, 241 F.3d 367,
370 (4th Cir. 2001); Wight v. BankAmerica Corp., 219 F.3d 79,
84 (2d Cir. 2000); cf. Gutierrez v. Johnson & Johnson, 523 F.3d
187, 194 (3d Cir. 2008) (“[T]he fact that [a] motion was timely
for the purposes of the District Court’s schedule does not

13
necessarily make it timely for an appeal to this Court.”).

Lizardo urges us to follow the Sixth Circuit, which held
that “where a party forfeits an objection to the untimeliness of
a Rule 59(e) motion [in the district court], that forfeiture makes
the motion ‘timely’ for the purpose of Rule 4(a)(4)(A)(iv).”
Nat’l Ecological Found., 496 F.3d at 476. That Court could
“discern no reason for holding that an otherwise properly filed
motion that was considered by the district court would fail to toll
the time for filing a notice of appeal.” Id. There are several
reasons why we depart from the Sixth Circuit’s approach.

First, it creates a disparity in treatment between the first
five types of post-judgment motions and the last type listed
under Rule 4(a)(4)(A), Rule 60 motions. Under Rule
4(a)(4)(A)(vi), in its current form, this Court, not the district
court, is required to determine whether the Rule 60 motion was
filed “no later than 28 days after the judgment [wa]s entered.”
Fed. R. App. P. 4(a)(4)(A)(vi) (2010). Thus, the circumstances
of the litigation in the district court are irrelevant to whether a
Rule 60 motion is timely for purposes of Rule 4(a)(4)(A).
Under the Sixth Circuit’s approach, however, the timeliness of
the other post-judgment motions would be determined based on
the proceedings in the district court. Whether those motions
were timely filed would depend in part upon the quality of the
party opposing the motion’s counsel at the district court. If that
party’s counsel failed to object to the timeliness of the motion,
we would be forced to deem the time to file a notice of appeal

14
tolled. There is no reasoned explanation for treating Rule 60
motions differently from the other motions listed under Rule
4(a)(4)(A).

In fact, the disparity would frustrate one of Rule
4(a)(4)(A)’s purposes—to provide the same deadline for all
post-judgment motions listed under that rule. The Advisory
Committee’s notes on the 2009 amendments to Rule 4 state that
section (a)(4)(A)(vi) was amended to match the timeline of the
other post-judgment motions that provide for tolling:

Formerly, the time limit under subdivision
(a)(4)(A)(vi) was 10 days, reflecting the 10-day
limits for making motions under Civil Rules
50(b), 52(b), and 59. Subdivision (a)(4)(A)(vi)
now contains a 28-day limit to match the revisions
to the time limits in the Civil Rules.

Fed. R. App. P. 4 (2010) (Notes of Advisory Committee on
2009 Amendments). Dating back to at least 1995, the
amendments to Rule 4 have repeatedly sought to “standardize
the time in which postjudgment motions must be made” under
Rule 4(a)(4)(A). 16A Charles A. Wright, Arthur R. Miller,
Edward H. Cooper & Catherine T. Struve, Federal Practice and
Procedure: Jurisdiction and Related Matters § 3950.4 at 330
(4th ed. 2008). This interest in a uniform deadline would be
defeated by an approach to tolling that is largely dependent on
what occurred in the district court for Rule 4(a)(4)(A)(i) through
(v), but is based solely on our own timing calculation for Rule

15
4(a)(4)(A)(vi).

In addition, the Sixth Circuit’s approach creates
uncertainty in the appeal timeline. The 2009 amendments to the
Federal Rules of Civil Procedure, which, inter alia, extended the
time for filing a Rule 59(e) motion from ten to twenty-eight
days, show that Rule 4 is intended to enforce the deadlines
provided in the Federal Rules of Civil Procedure, not vary them
based on the happenstance of a particular litigation. In
discussing the extension of time for filing a Rule 59(e) motion,
the Advisory Committee Notes explain that the time period to
file such a motion is “particularly sensitive because Appellate
Rule 4 integrates the time to appeal with a timely motion under
[Rule 59].” Fed. R. Civ. P. 59 (2010) (Notes of Advisory
Committee on 2009 Amendments). Indeed, Rule 4’s main
purpose is “to set a definite point of time when litigation shall
be at an end[.]” Browder, 434 U.S. at 264 (internal quotation
marks omitted). In furtherance of this purpose, the 2009
amendment extending the filing deadline for a Rule 59(e)
motion from ten to twenty-eight days was partially motivated by
the desire to provide additional time to file the motion while not
injecting uncertainty into the appeal timeline by granting the
district court discretion to set any deadline for the motion’s
filing. “Rather than introduce the prospect of uncertainty in
appeal time by amending Rule 6(b) to permit additional time,”
Fed. R. Civ. P. 59 (2010) (Notes of Advisory Committee on
2009 Amendments)—by, say, permitting an extension of time to
file a Rule 59(e) motion for “good cause,” as district courts are

16
permitted to do for some other motions, Fed. R. Civ. P.
6(b)(1)—Rule 6(b)’s prohibition on the extension of time to file
a Rule 59(e) motion was specifically preserved, Fed. R. Civ. P.
59 (2010) (Notes of Advisory Committee on 2009
Amendments). Fed. R. Civ. P. 6(b)(2) (“A court must not
extend the time to act under Rule[] . . . 59[(e).]”). Holding that
an untimely Rule 59(e) motion is timely for purposes of Rule
4(a)(4)(A) by virtue of the opposing party’s failure to object to
that untimeliness in the district court would accomplish the
opposite result of that intended by the 2009 amendments. The
“uncertainty in appeal time,” Fed. R. Civ. P. 59 (2010) (Notes
of Advisory Committee on 2009 Amendments), would be
embedded in the litigation process. Accordingly, we reject
Lizardo’s request that we follow the Sixth Circuit’s approach.

III.

We hold that an untimely Rule 59(e) motion, even one
that was not objected to in the district court, does not toll the
time to file a notice of appeal under Rule 4(a)(4)(A). The
Government’s forfeiture of the timeliness objection to Lizardo’s
Rule 59(e) motion in the District Court did not forfeit its
timeliness challenge based on Rule 4(a)(4)(A) made before this
Court. Because Lizardo’s untimely Rule 59(e) motion did not
toll the time to file a notice of appeal, his notice of appeal was
untimely and we must dismiss his appeal for lack of

17
jurisdiction.9

9
We express no opinion on whether Rule 4(a)(4)(A) is
a claim-processing or jurisdictional rule. Indeed, any such
expression would be dicta because it is undisputed that the
Government properly raised the timeliness challenge based on
Rule 4(a)(4)(A) before this Court.

18
Lizardo v. USA, No. 08-2044
JORDAN, Circuit Judge, Concurrence and Dissent

While I agree with my colleagues that Lizardo’s untimely
motion for reconsideration – even though it was not objected to
in the district court – does not toll the time for filing an appeal
under Appellate Rule 4(a)(4)(A), and that therefore his appeal
from the District Court’s denial of his 28 U.S.C. § 2255 petition
is untimely, I believe that the Supreme Court’s decision in
Bowles v. Russell, 551 U.S. 205, 209 (2007), compels the
conclusion that Appellate Rule 4(a)(4)(A) is a claims-processing
rule and that defenses under that rule can, in certain instances,
be waived. Thus, I believe that waiver of a timeliness objection
can indeed be made under Appellate Rule 4(a)(4)(A), and so
write separately. Nevertheless, because the government’s
timeliness objection was not effectively waived in this case, I
respectfully concur in the portion of the Majority’s opinion
holding that there is no jurisdiction over Lizardo’s appeal from
the District Court’s denial of his § 2255 petition. To the extent
that the Majority holds that we do not have jurisdiction over
Lizardo’s appeal from the District Court’s denial of his motion
for reconsideration, however, I respectfully dissent.

I. Lizardo’s Appeal from the District Court’s Denial of
his § 2255 Petition and Tolling 1

1
Because this case centers so significantly on timing, I
note the following timeline as background for the discussion
that follows:

1
August 16, 2002: Lizardo moves to vacate his sentence
under § 2255.

January 25, 2008: The District Court denies his § 2255
petition.

February 8, 2008: This is the deadline for Lizardo to file his
Rule 59(e) motion for reconsideration.
(Note: the timeline contained in Rule 59(e)
was 10 days from entry of judgment at the
time of Lizardo’s case; today, it is 28
days).

February 29, 2008: Lizardo files a pro se Rule 59(e) motion
for reconsideration.

March 17, 2008: The District Court denies Lizardo’s Rule
59(e) motion.

March 25, 2008: This is the deadline for Lizardo to file an
appeal from the January 25 denial of his
§ 2255 petition, assuming there is not
tolling based on his Rule 59(e) motion.

April 7, 2008: Lizardo files a pro se notice of appeal
from (1) the District Court’s January 25
denial of his §2255 petition AND (2) the
District Court’s March 17 denial of his
Rule 59(e) motion.

2
 In Bowles, the Supreme Court held that the time for filing
a notice of appeal in civil cases, set forth in Appellate Rule
4(a)(6), is “mandatory and jurisdictional” and thus not waivable.
551 U.S. at 209 (quotations omitted). The Supreme Court
grounded its holding in the fact that the time limitation in
Appellate Rule 4(a)(6) “is set forth in a statute, 28 U.S.C.
§ 2107.” Id. at 213. The Court expressly noted “the
jurisdictional distinction between court-promulgated rules,”
which are not statute-driven, and “limits enacted by Congress,”
such as Appellate Rule 4(a)(6). Id. at 211-12. The Court
referred to the court-promulgated rules as “claims-processing”
or “nonjurisdictional” rules and it concluded that those rules
“may be waived.” Id. at 212, 216. On the other hand, the Court
held that a litigant subject to a time frame set by statute “cannot

May 16, 2008: This is the deadline for Lizardo to file an
appeal if there is tolling based on his Rule
59(e) motion.

May 16, 2008: Lizardo seeks a certificate of appealability
(“COA”) from our court.

Sept. 29, 2008: We grant the COA.

3
rely on forfeiture or waiver 2 to excuse his lack of compliance
with the statute’s time limitations.” Id. at 213.

Although 28 U.S.C. § 2107 sets forth the time for taking
an appeal, it does not contain the tolling provision found in
Appellate Rule 4(a)(4)(A),3 nor does it embody in any way the

2
The Supreme Court did not distinguish between the
terms “waiver” and “forfeiture,” and used them together to
describe what can occur under a claims-processing rule. For
purposes of simplicity, I use the term “waiver,” although, in
certain instances, the difference between a knowing and
deliberate waiver versus an inadvertent forfeiture may be
significant.
3
Appellate Rule 4(a)(4)(A) provides that:

If a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time to
file an appeal runs for all parties from the entry of the order
disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under
Rule 52(b), whether or not granting the motion would
alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court
extends the time to appeal under Rule 58;

4
rules of civil procedure listed in Appellate Rule 4(a)(4)(A), such
as Federal Rule of Civil Procedure 59(e), the rule at issue in the
present matter.4 As an initial matter, then, I believe that Bowles
requires us to conclude that, because the time periods noted in
Appellate Rule 4(a)(4)(A) are not set forth in a statute, the rule
must be classified as claims-processing rather than
jurisdictional. My colleagues in the Majority recognize that
Rule 59(e) is a “claim[s]-processing rule,” and that therefore,
“an objection based on the untimeliness of a Rule 59(e) motion
may be forfeited.” Maj. Op. at 9. Yet, they “express no opinion
on whether Rule 4(a)(4)(A) is a claim-processing or
jurisdictional rule.” Id. at 9 n. 9. In other words, the Majority
declines to state explicitly that Appellate Rule 4(a)(4)(A) is a
claims-processing rule that allows a party to waive a timeliness
objection. Given the “jurisdictional” versus “claims-processing”
divide delineated in Bowles, however, there is no basis to draw

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later
than 28 days after the judgment is entered.
4
Federal Rule of Civil Procedure 59(e) addresses what are
sometimes called motions for reconsideration, and provides that
“[a] motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.” At the time that
Lizardo filed his motion for reconsideration, the timeframe set
by the rule was 10 days rather than 28 days.

5
a distinction between Rule 59(e), a rule not dictated by statute,
and Appellate Rule 4(a)(4)(A), another rule not dictated by
statute. Accordingly, I see no way to avoid the conclusion that
Appellate Rule 4(a)(4)(A), like Rule 59(e), is a claims-
processing rule. And, if one accepts that 4(a)(4)(A) is a claims-
processing rule, it follows that a defense under that rule “may be
waived.” Bowles, 551 U.S. at 212; see also Eberhart v. United
States, 546 U.S. 12, 15 (2005) (describing how
“claim-processing rules ... may be unalterable on a party’s
application but can nonetheless be forfeited if the party asserting
the rule waits too long to raise the point.” (internal quotations
omitted)).

In the present case, the government did not object to the
timeliness of Lizardo’s motion for reconsideration in the District
Court. Thus, the government waived its affirmative defense of
untimeliness as to the Rule 59(e) motion in the District Court.
The Majority recognizes as much, Maj. Op. at 3; 12-13, but
nevertheless holds that “an untimely Rule 59(e) motion, even
one that was not objected to in the district court, does not toll the
time to file an appeal under Rule 4(a)(4).” Maj. Op. at 17.

To the extent that the Majority’s opinion may be read as
implying that a party can never waive an objection under
Appellate Rule 4(a)(4)(A), I cannot agree. The waiver available
to the government under Appellate Rule 4(a)(4)(A) could have
been exercised had the government chosen not to assert its
affirmative defense of untimeliness in our Court. However, I do
agree with the Majority in its holding that what suffices as
waiver for purposes of Rule 59(e) does not necessarily suffice
as a waiver under Rule 4(a)(4)(A). In other words, as the

6
Majority states, even when an opposing party fails to object to
the timeliness of a Rule 59(e) motion in the district court, and
the district court rules on that motion on the merits, the opposing
party can still raise the issue of timeliness with regard to
Appellate Rule 4(a)(4)(A).

Here, the government evidently chose not to object to the
timeliness of Lizardo’s motion for reconsideration in the District
Court, though it could have raised the 10-day time bar then in
place under Rule 59(e). Given the different purpose of
Appellate Rule 4(a)(4)(A), however, the government was free to
assert the untimeliness of Lizardo’s notice of appeal from the
District Court’s denial of his § 2255 petition, and it did so in its
briefing after we issued a certificate of appealability (“COA”)
in this case.

Appellate Rule 4(a)(4)(A) should not be treated as
waived unless there has been an explicit assertion of waiver, or
the waiving party has briefed the merits of an appeal without
raising the affirmative defense of untimeliness.5 Here, the

5
The idea that, if an opposing party briefs the merits of an
appeal without raising the affirmative defense of untimeliness,
it should be treated as, in effect, a specific assertion of waiver,
is consistent with the District of Columbia Circuit’s reasoning
in Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007).
In Wilburn, as in the instant case, the opposing party did
not challenge the timeliness of Wilburn’s post-judgment motion
in the district court, which was in fact untimely. 480 F.3d 1144.
Nor did the opposing party raise the affirmative defense of

7
government never made an explicit assertion of waiver, nor did
it brief the merits of the appeal before we issued a COA.
Rather, the government was simply silent as to untimeliness
under Appellate Rule 4(a)(4)(A). While silence is enough to
effectuate waiver under Rule 59(e), there are good reasons to

untimeliness when Wilburn filed his notice of appeal. Id.
However, unlike the instant case, the opposing party in Wilburn
briefed the merits of the appeal without addressing the issue of
untimeliness. Id. at 1147.
In analyzing the issue of tolling, the Wilburn court began
by explicitly noting that “[t]he tolling language of Rule
4(a)(4)(A)(vi) fits the Court’s description of a claim-processing
rule.” Id. at 1145. The court then noted that the opposing party
“did not challenge the timeliness of Wilburn’s appeal in his
initial brief to this court ... [but i]nstead, he addressed only the
merits of the appeal.” Id. at 1147. The court then held that,
“[a]lthough [the opposing party eventually] raised the timeliness
issue in response to our order to the parties to consider the effect
of [tolling] on this appeal ... the argument comes too late.” Id.
Accordingly, the Wilburn court held that, “[b]ecause [the
opposing party] failed to timely assert the timeliness defense
afforded by Rule 4(a)(4)(A)(vi) [in its merits briefing], ...
Wilburn’s [post-judgment motion] to have tolled the period to
appeal ... .” Id.
Unlike in Wilburn, here, the government never briefed
the merits of the appeal without raising its timeliness objection.
Therefore, the government has not waived its objection under
Appellate Rule 4(a)(4)(A).

8
say it is not enough to effectuate waiver under Appellate Rule
4(a)(4)(A).

First, those two rules are aimed at different objectives.
The time limit contained in Rule 59(e) establishes a check on a
district court’s ability to revisit its final judgment.
Considerations under that rule are made on a specific, case-by-
case basis. Appellate Rule 4(a)(4)(A), on the other hand, goes
to the manner in which appeals are processed from all district
court cases. Appellate Rule 4(a)(4)(A) is thus a systemic and
organizational rule. Its goals are to ensure that appeals are
treated in an equitable manner and to bring certainty to the
appeals process. That is something broader than the aim of Rule
59(e), which allows a limited opportunity for a district court to
correct a specific error in a specific case. Accordingly, waiver
under Appellate Rule 4(a)(4)(A) is rightly subject to more
stringent requirements than waiver under Rule 59(e). That a
party waived by silence its defense to the district court’s ability
to reconsider its final judgment should not dictate the
consideration we give to whether a party has timely filed an
appeal in our court. Indeed, even an explicit waiver of a 59(e)
timeliness objection ought not be sufficient to overcome the
systemic and institutional concerns that warrant giving
Appellate Rule 4(a)(4)(A) more rigid application.

Second, if we were to hold that an opposing party’s
failure to object to the timeliness of a Rule 59(e) motion in the
district court prevents that party from challenging on appeal the
timeliness of that motion for purposes of tolling – the Sixth
Circuit’s approach in National Ecological Foundation v.
Alexander, 496 F.3d 466 (6th Cir. 2007) – we must assume the

9
existence of an opposing party. There are, however, certain
contexts in which no opposing party is present. For example, in
the context of habeas corpus and in Prison Litigation Reform
Act cases, district courts can and frequently do dismiss a
plaintiff’s or petitioner’s initial pleading as frivolous before that
pleading has been served on the government. See 28 U.S.C.
§ 2243; 42 U.S.C. § 1997e. In those cases, a plaintiff or
petitioner may file an untimely motion for reconsideration of the
district court’s dismissal, and, even if the district court rules on
that motion on the merits, we may still dismiss an appeal based
on the untimeliness of the underlying motion.6 So, unlike
plaintiffs in other civil cases, who would benefit under the Sixth
Circuit’s approach from an opposing party’s waiver of a
timeliness objection, the plaintiff or petitioner without an
opposing party cannot have the benefit of such a waiver. That
approach thus creates two classes of defendants: those with an
opposing party who can grant them the benefit of waiver, and
those without any opportunity for grace because there is no one
to grant it. We should not assume that Congress intended to
create two classes of appellants, those with access to a
possibility of waiver and those without. Prisoners and habeas
petitioners already face – by Congress’s considered choice –
carefully placed screens to filter the claims they wish to bring.

6
A similar distinction can be found in the in forma
pauperis context, 28 U.S.C. § 1915(e), in which the court has
authority to dismiss frivolous complaints before they are served
on a defendant. Here too, there may be no opposing party in a
situation where the Court dismisses a claim and then the party
moves for reconsideration.

10
We should be leery of creating new impediments for them on
our own.

Third, I agree with the Majority that an approach like that
taken by the Sixth Circuit in National Ecological Foundation
would result in an unacceptable uncertainty in the appellate
process. There is an obvious uncertainty that would ensue
should the timeliness of an appeal be predicated on the
idiosyncratic motions practice of litigants before the district
court. Likely for that reason, Appellate Rule 4(a)(4)(A) states
that, “[i]f a party timely files” any of the motions listed in the
rule, “the time to file an appeal runs for all parties from the entry
of the order disposing of the last such remaining motion[.]”
(emphasis added). A simple textual approach, then, would
dictate that, as a general matter, a Rule 59(e) motion should only
be able to toll the time for filing an appeal if it is “timely,” i.e.,
filed within the timeframe dictated by Rule 59(e). Unless there
is a specific assertion of waiver (see supra note 5), parties
should be able to rely on that “timely” caveat in Appellate Rule
4(a)(4)(A). The rule itself thus lends further support to the
conclusion that a waiver in the Rule 59(e) context does not

11
translate into a waiver in the Appellate Rule 4(a)(4)(A) context.7

Finally, I also agree that embracing the National
Ecological Foundation approach would create an internal
inconsistency within Appellate Rule 4(a)(4)(A). Appellate Rule
4(a)(4)(A) lists six types of post-judgment motions that can toll
the time for filing an appeal, but only one of the six is

7
I recognize that an element of uncertainty results from
our approach as well. A reason frequently given for forcing
litigants to live with the positions they took in the district court
is that allowing a new position to be taken for the first time in
our Court works an unfairness to the party filing the motion who
proceeds in good faith reliance on what the opposing party did
or did not do in the district court. Here, we have a circumstance
where both parties and the District Court treated Lizardo’s
motion for reconsideration as valid, and addressed it on the
merits. See App. at 32 (“Having considered the premises, it is
hereby ORDERED that Lizardo’s motion for reconsideration is
denied.”). Allowing a timeliness objection to be raised now, for
the first time on appeal, means that, even though the parties and
the Court proceeded with the motion for reconsideration,
deciding it as if it were timely, and even though they were all
free to do that, Lizardo should nevertheless have known to file
a notice of appeal before the motion to reconsider was decided.
However, this uncertainty results from a party’s – in this case,
Lizardo’s – failure to file a Rule 59(e) motion in a timely
manner, and, importantly, this kind of uncertainty exists on a
case-by-case basis. If we have a clear rule, we are likely to have
fewer cases like this one.

12
accompanied by a time limit. Specifically, Appellate Rule
4(a)(4)(A)(vi) provides that a Rule 60 motion can toll the time
for filing an appeal, but only if it is “filed no later than 28 days
after the judgment is entered.” Based on that language, our
Court, not the district court, is required to determine whether the
Rule 60 motion was filed within that 28-day time frame. On the
other hand, were we to adopt the Sixth Circuit’s approach, the
timeliness of the other five post-judgment motions – or at least
the Rule 59(e) motions – would be determined based on the
proceedings of the district court. Thus, an internal inconsistency
would result because a Rule 60 motion can only toll the time for
filing an appeal if that motion was filed within 28 days of the
entry of judgment, whether or not the opposing party fails to
object to untimeliness before the district court, whereas the
failure to object to a Rule 59(e) motion would render that
motion timely for the purposes of tolling.8

8
I do concede, however, that a Rule 60 motion is, by its
nature, a different type of post-judgment relief than the other
motions listed in Appellate Rule 4(a)(4)(A). The filing of a
Rule 60 motion is not tied to a litigation event, but to events that
occurred outside the litigation context. Thus, while other post-
judgment motions are accompanied in the Federal Rules of Civil
Procedure by specified time limits that begin to run when the
district court enters final judgment or grants or denies a discrete
motion, certain types of motions under Rule 60(b) must simply
be made “within a reasonable time” after the entry of judgment.
F ED. R. C IV. P. 60(c)(1). As a result, it was likely necessary for
the drafters of the Federal Rules of Appellate Procedure to
incorporate into the Appellate Rules a separate time period

13
 In sum, I would hold that an untimely motion for
reconsideration – even when not objected to in the district court
– does not toll the time for filing an appeal under Appellate
Rule 4(a)(4)(A), unless there has been a clear assertion of
waiver, either by an explicit statement of waiver or by merits
briefing that fails to address the issue of timeliness. Appellate
Rule 4(a)(4)(A) is a claims-processing rule,9 but, in this

within which the filing of a Rule 60(b) motion will toll the
period of filing a notice of appeal with respect to the final
judgment. Otherwise, as a technical matter, a party could file a
Rule 60(b) motion years after entry of a final judgment, and then
argue upon disposition of that motion that they had a right to
appeal the original judgment.
9
The Majority says that a statement that Appellate Rule
4(a)(4)(A) is a claims-processing rule would be dicta, because
here, the Government raised the issue of timeliness under Rule
4(a)(4)(A). Maj. Op. at189 n.9. Perhaps this is so, if the basis
for the Majority’s holding is that the Government made a proper
timeliness objection under Appellate Rule 4(a)(4)(A). However,
I write separately to make clear that, in my view, there are
circumstances in which such an objection could in fact be
waived. I write to ensure that we do not leave the impression
that Appellate Rule 4(a)(4)(A) is jurisdictional, which one might
understand from the Majority’s opinion.
Further, while the Majority recognizes that its approach
departs from the Sixth Circuit’s approach, the Majority also
departs from the approaches embraced by the District of
Columbia Circuit in Wilburn, 480 F.3d at 1140, and the Eighth

14
instance, a timeliness defense under that claims-processing rule
was not waived. For these reasons, I respectfully concur.

Circuit in Dill v. General American Life Insurance Co., 525
F.3d 612 (8th Cir. 2008). While those two decisions are
certainly distinguishable (for reasons that need not be addressed
here), they are rightly explicit about Appellate Rule 4(a)(4)(A)
being a claims-processing rule, and they embrace the principle
that a defense under Appellate Rule 4(a)(4)(A) may accordingly
be waived. See Wilburn, 480 F.3d at 1146 (stating that,
“[b]ecause we conclude that the time limit of Rule
4(a)(4)(A)(vi) constitutes a claim-processing rule, the issue
becomes whether [the opposing party] forfeited the right to
assert it); Dill, 525 F.3d at 618-19 (“[B]ecause the rules
[contained in Appellate Rule 4(a)(4)(A)] are nonjurisdictional,
these timeliness requirements may be forfeited if they are not
timely raised. Therefore, we must decide whether Dill timely
raised the untimeliness of ... [the opposing party’s post-
judgment] motion. If he did, he is assured relief ... [but if he]
wait[ed] too long to raise the point ... the defense was
forfeited.”) (citations omitted) (fifth alteration in original).
I agree with those courts’ explicit discussions about
Appellate Rule 4(a)(4)(A) as a claims-processing rule, and their
recognition that waiver is indeed possible, and I believe we
should clearly adopt that position.

15
II. Lizardo’s Appeal from the District Court’s Denial of
his Motion for Reconsideration

Lizardo appealed from both the District Court’s January
25, 2008 denial of his § 2255 motion and the District Court’s
March 17, 2008 denial of his Rule 59(e) motion. We must
therefore ask whether Lizardo’s appeal of his motion for
reconsideration is timely if measured from the District Court’s
denial of that motion, separate and apart from tolling under
Appellate Rule 4(a)(4)(A).

The Majority holds, as it must, that Rule 59(e) is a
claims-processing rule. It therefore concludes that “we can no
longer treat Rule 59(e) as a jurisdictional rule, nor view
Lizardo’s untimely motion for reconsideration as a nullity.”
Maj. Op. at 10. If we cannot view Lizardo’s motion for
reconsideration as a nullity (i.e., we must view it as legitimate),
we also cannot view the District Court’s denial of that motion
for reconsideration as a nullity. In other words, the District
Court’s denial of Lizardo’s motion for reconsideration is an
order from which an appeal can be taken.

Because the District Court’s denial of Lizardo’s motion
for reconsideration is a final order, Lizardo’s appeal as
measured from that denial is timely, and we have jurisdiction
over those issues he raised in his motion for reconsideration.10

10
Lizardo’s motion for reconsideration raised the same
underlying issue as his § 2255 petition, namely, that his counsel
deprived him of the right to testify. However, the standard of

16
The District Court denied Lizardo’s Rule 59(e) motion on
March 17, 2008 and Lizardo filed his pro se notice of appeal on
April 7, 2008, within the 60-day time period prescribed by
Appellate Rule 4.

The Majority does not address this issue explicitly, but in
a footnote states that “[t]he certificate of appealability did not
certify the issue of whether the District Court erroneously
denied Lizardo’s motion for reconsideration and Lizardo failed
to raise that issue on appeal.” Maj. Op. at 4-5 n.5. Therefore,
says the Majority, “we need not address it.” Id. Perhaps that
footnote can be read to mean that Lizardo’s appeal from the
denial of his motion for reconsideration is timely but that the
issue of whether the District Court erred in denying that motion
does not fall within the scope of our COA. If so, I disagree.

We granted the COA with regard to three specific
questions: (1) “whether the District Court applied the correct
standard in evaluating Lizardo’s claim that trial counsel
deprived him of his constitutional right to testify on his own
behalf”; (2) “whether Lizardo’s motion for reconsideration
affected the time for filing a notice of appeal”; and, (3) “whether
Lizardo’s notice of appeal was timely filed under the prison
mailbox rule.” App. at 13. The second and third of those
questions can and should be read to encompass the question of
whether Lizardo’s appeal, as measured from his motion for

review for denial of a motion for reconsideration is different
than that which would apply to an appeal from the denial of the
§ 2255 petition itself.

17
reconsideration, is timely. Particularly in the case of a pro se
appeal such as this,11 we should construe the COA to protect
Lizardo’s appellate rights. Cf. Ghana v. Holland, 226 F.3d 175,
180 (3d Cir. 2000) (discussing our willingness to “construe [a
litigant’s] pro se notice of appeal liberally to cover unspecified
prior orders that are related to the specified order that was
appealed from” (internal quotations and alterations omitted)).

Moreover, Lizardo did argue in his appellate brief that
the District Court erred in denying his motion for
reconsideration. See Appellant’s Op. Br. at 7-8 (“Further, the
District Court erred in concluding that [Lizardo’s] declaration
in support of his motion for reconsideration filed in response to
the District Court’s Order denying [Lizardo’s] § 2255 petition
did not allege sufficient prejudice under Strickland [] ... .”). In
fact, a section of his brief is devoted to why the District Court
allegedly erred in denying his motion for reconsideration.

I would therefore construe the COA to encompass the
issue of whether the District Court erred in denying Lizardo’s
motion for reconsideration, and thus would say that Lizardo’s
appeal from the District Court’s denial of his motion for
reconsideration is timely. For that reason, I respectfully dissent
to the extent that the Majority holds that we do not have

11
Lizardo was pro se when he filed his supplemental
memorandum in support of his § 2255 petition, when he filed
his motion for reconsideration, and when he filed his notice of
appeal. He was, however, counseled in his briefing following
our issuance of the COA.

18
jurisdiction over Lizardo’s appeal from the District Court’s
denial of his motion for reconsideration.

19