Alva v. Teen Help

F IL E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
November 22, 2006
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

SERGIO ALVA; LUZ ALVA; SILVIO
A LV A ,

Plaintiff - Appellant ,
No. 04-4012
v.

TEEN HELP, a partnership;
W O RLD WID E A SSO CIA TIO N OF
SPECIA LTY PROGRAM S, a
corporation; RESOURCE
REA LIZA TIO NS, a corporation; R& B
BILLING, a corporation; DIXIE
CONTRACT SERVICES, a
corporation; TEEN ESCORT
SER VIC ES, a corporation; K EN KAY;
ROBERT B. LICHFIELD; KARR
FARNSWORTH; BRENT M . FACER ,

Defendants - Appellees .

A ppeal from the U nited States D istrict C ourt
for the D istrict of U tah
(D .C . N o. 00-C V -169-T C )

Submitted on the briefs:

Thomas M . Burton, Pleasanton, California, for Plaintiffs-Appellants.

Fred R. Silvester and Spencer C. Siebers of Silvester & Conroy, L.C., for
Defendants-Appellees.
Before M U R PH Y , SE Y M O U R and O ’B R IE N , Circuit Judges.

O ’B R IE N , Circuit Judge.

Plaintiffs Sergio Alva and his parents, Luz and Silvio Alva, appeal from the

district court’s grant of summary judgment to Defendants Teen Help, W orld W ide

Association of Speciality Programs, R& B Billing, Dixie Contract Services, Robert

Lichfield, Karr Farnsworth and Brent Facer (Defendants). 1 Because Plaintiffs’

notice of appeal is untimely, we dismiss this appeal for lack of jurisdiction.

On February 25, 2000, Plaintiffs initiated suit in the United States District

Court for the District of Utah against Defendants alleging various tort claims

arising from Luz and Silvio’s enrollment of Sergio at Paradise Cove, a behavioral

m odification program for troubled teenagers located in W estern Samoa. 2 On

August 5, 2003, Defendants filed a motion for summary judgment. On December

1
In their Amended Complaint, Plaintiffs also named Resource Realizations
as a defendant. However, Resource Realizations does not appear as a party on the
docket sheet and has never appeared in this case. They also named Teen Escort
Services as a defendant but it was never served. M oreover, Ken Kay was named
as a defendant. However, Kay had been previously dismissed with prejudice.
2
Sergio w as enrolled at Paradise Cove from April 1996 to A ugust 1997. In
1997, W estern Samoa dropped the “W estern” from its name and is now referred to
solely as Samoa. See Central Intelligence Agency’s W orld Factbook,
http://www.odci.gov/cia/publications/factbook/index.html.

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16, 2003, the district court heard argument on the motion. At the conclusion of

the hearing, the court orally granted Defendants’ motion. The next day, on

December 17, 2003, the court issued a written order granting the motion. It was

filed that day along with a separate judgment. 3 Plaintiffs did not file their notice

of appeal until January 17, 2004.

Defendants did not contest the timeliness of Plaintiffs’ notice of appeal.

Nevertheless, because it appeared to be untimely, we required Plaintiffs to show

cause w hy this appeal should not be dismissed for lack of jurisdiction and also

permitted Defendants to file a brief. W e specifically directed the parties to

discuss Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403 (2005), and

Kontrick v. Ryan, 540 U.S. 443 (2004), two recent Supreme Court cases

suggesting time prescription rules are sometimes mistakenly regarded as

jurisdictional. After reviewing Plaintiffs’ response to the order to show cause and

Defendants’ brief, we conclude the requirement for a timely notice of appeal in a

civil case is not a “claim-processing rule” subject to forfeiture under either

Eberhart or Kontrick but a jurisdictional prerequisite to our review. 4

3
In their opening brief, Plaintiffs state the district court “filed its judgment
against Plaintiffs on December 3, 2003, before the December 16 hearing even
though it w as not docketed until D ecember 17, 2003, the day after the hearing . . .
.” (Appellants’ Opening Br. at 8.) Plaintiffs are mistaken. The judgment was
filed and docketed on December 17, 2003.
4
In a summary and conclusory fashion Plaintiffs’ response does not discuss
Kontrick and merely contains an extended quote from Eberhart. It was neither

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 I. Discussion

A. Timeliness

“An appeal permitted by law as of right from a district court to a court of

appeals may be taken only by filing a notice of appeal with the district clerk

within the time allowed by Rule 4.” F ED . R. A PP . P. 3(a)(1). Both

28 U.S.C. § 2107(a) and Rule 4(a) of the Federal Rules of A ppellate Procedure

require a notice of appeal in a civil case to be filed with the district clerk within

thirty days after the judgment or order appealed from is entered. 5 A judgment is

deemed entered when the judgment is set forth on a separate document, see F ED .

R. C IV . P. 58(a), and entered in the civil docket. F ED . R. A PP . P. 4(a)(7)(A)(ii).

Here, the judgment, which was set forth on a separate document, was

entered in the civil docket on W ednesday, December 17, 2003. Pursuant to Rule

26(a) of the Federal Rules of Civil Appellate Procedure, Plaintiffs had until

thoughtful nor helpful. The thrust of Plaintiffs’ response and accompanying
affidavit of counsel is that their tardy filing is de minimis and should thus be
ignored. Six minutes seems trivial and unlikely to cause prejudice, but if six
minutes can be excused, why not six hours or six days? A s we discuss, there is a
safety valve, but it lies with the district court and requires a timely application,
which never materialized in this case. Ignoring established purposes and methods
for extensions of time, Plaintiffs argue for different or additional relief. They are
out of luck. Like statutes of limitation, statutes of repose, and other such time
bars, rights may be irretrievably lost due to delay.
5
There are exceptions to this rule when the United States or its officer or
agency is a party, when the party appealing timely files certain post-judgment
motions, and when the party appealing is an inmate confined in an institution.
F ED . R. A PP . P. 4(a)(1)(B), (a)(4), (c). None of these exceptions apply here.

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Friday, January 16, 2004, to file their notice of appeal. Although the notice of

appeal was dated January 16, 2004, it was not filed until 12:06 A.M . on January

17, 2004. 6 Thus, it is untimely. 7

6
Apparently, Plaintiffs filed the notice of appeal using the district court’s
twenty-four hour drop box. The court’s website provides the following guidelines
for filing pleadings via the drop box:

T w enty-four hour D rop B ox

• The drop box can be used throughout the day and also when the court is
closed.
• The box is emptied first thing in the morning and right before closing.
• Stamp the original pleading in the first slot of the box, attach the judge’s
courtesy copy or copies, and place them in the lower slot.
• You can stamp an additional copy to keep as your conformed copy.
• To ensure that your original and copies do not become separated, you can
place them in an envelope after you have stamped the original.
• If you have forgotten to time stamp your document, the document will be
stamped in the next day, when the clerk’s office empties the box.
• Documents that are extraordinarily thick will not fit in the slot in the box.
If you anticipate filing a large document after hours, call the clerk’s office
during business hours so that a special arrangement can be made.

See http://www.utd.uscourts.gov/documents/filepage.html.
7
The late filing is consistent with Plaintiffs’ cavalier approach to litigation.
On November 25, 2002, the district court issued a scheduling order setting July
15, 2003, as the factual discovery deadline. Plaintiffs did not conduct any
discovery. W hen Defendants filed their motion for summary judgment on A ugust
5, 2003, Plaintiffs sought a motion to stay the hearing on Defendants’ motion
until after they deposed the individual defendants and to compel the individual
defendants to appear for their noticed depositions. (Although Plaintiffs had
noticed the individual defendants’ depositions for August 20 and 21, 2003,
Defendants informed Plaintiffs they would not appear without a court order
because the depositions were scheduled after the discovery deadline.) The district
court denied the motion to stay and to compel, finding Plaintiffs had been
dilatory:

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 Nothing in Plaintiffs’ response to the order to show cause convinces us to

the contrary. In it, their attorney states he was aware January 16 was the last day

to file a notice of appeal and that he personally filed the appeal on January 16 just

before midnight but that when he withdrew the document from the time-stamp

slot, it indicated it was filed at 12:06 A.M . He does “not understand why it was

stamped 12:06 or know whether the stamp clock was precisely calibrated on that

day . . . . At the time, [he] regarded the stamped date as inaccurate and de

minimis, and so proceeded with the appeal.” (Appellants’ Response to Order to

Show Cause, Burton Declaration at 2.) He noted on the docketing statement that

“[he] had filed the N otice of A ppeal on time, but that the stamp date w as January

17.” (Id.) No further explanation was offered. In any event, he claims he made

every effort to meet the deadline and emphasizes no one, except this Court, has

ever objected to the late filing. Had someone objected, he states he would have

moved for an extension of time under Rule 4(a)(5) on the grounds of excusable

neglect. In summary, he claims “[i]t would be inequitable, after more than two

[Plaintiffs’] eleventh hour effort to depose the individual Defendants
was the sole discovery effort made by Plaintiffs since they brought
this action in February 2000. Indeed, Plaintiffs have not propounded
a single interrogatory, request for admission or request for
production. They have not issued a single subpoena or taken a single
deposition.

(R . Doc. 55 at 3 (quotations omitted).)

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years of waiting for a decision, and after all of [Plaintiffs’] briefing and

additional submissions . . ., to dismiss this case for lack of jurisdiction over a

barely tardy appeal, an issue that, if not apparent on the face of the Notice itself,

was plainly and forthrightly raised by the D ocketing Statement and Case Summary

within 60 days of the appeal[] being filed.” (Id. at 3-4.)

By his own admission, counsel knew the appeal was six minutes late

according to the court’s file stamp. That file stamp, not counsel’s watch or

memory, controls. Knowing the notice of appeal was late according to court

records, counsel could have and should have filed a motion for extension of time

with the district court. See 28 U.S.C. § 2107(c); F ED . R. A PP . P. 4(a)(5). M ost

probably such a request would have been granted if timely made.

Plaintiffs’ Docketing Statement (required by 10th Cir. R. 15) cannot serve

as a substitute for the strict requirements of the rules. The Docketing Statement

states: “N otice of A ppeal stamped January 17, 2004, but deposited in after hours

box on Friday, January 16, 2004.” (D ocketing Statement at 1.) Again, the file

stamp controls. M oreover, the D ocketing Statement cannot be construed as a

request for an extension of time. Even assuming it could be so construed, such

request would have to be directed to the district court. In any event an extension

was never granted. M ore importantly, the Docketing Statement was not filed until

M arch 1, 2004, well beyond the time limit for requesting an extension of time

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from the district court. See F ED . R. A PP . 4(a)(5)(A)(i), (ii) (a district court may

extend the time to file a notice of appeal if a party moves for such extension no

later than thirty days after the time for filing a notice of appeal expires and the

party shows excusable neglect or good cause).

To the extent Plaintiffs are asking this Court to find excusable neglect and

extend the time for filing their notice of appeal, we have no authority to do so.

See F ED . R. A PP . P. 26(b). Only the district court may do so and only under

limited circumstances and for a limited time. 28 U.S.C. § 2107(c); F ED . R. A PP .

P. 4(a)(5). Because that time has passed without a request from Plaintiffs or

action by the court, the bar fell, fatally.

As we explain, a timely notice of appeal in a civil case is jurisdictional, not

merely compliance with a “claim processing rule” subject to forfeiture for failure

to object. Therefore counsel’s failure to timely act cannot be excused for want of

an objection from opposing counsel. Nor can counsel’s failure be excused based

upon a good faith reliance on Eberhart or Kontrick. Eberhart was decided in

2005 and Kontrick was decided only days before counsel filed the notice of

appeal.

B. Jurisdiction

The subject-matter jurisdiction of lower federal courts is within the plenary

control of Congress. U.S. C ONST ., art. III, §1. In 28 U .S.C. § 1291, Congress

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provided:

The courts of appeals (other than the United States Court of Appeals
for the Federal Circuit) shall have jurisdiction of appeals from all
final decisions of the district courts of the United States, the United
States District Court for the District of the Canal Zone, the District
Court of Guam, and the District Court of the Virgin Islands, except
where a direct review may be had in the Supreme Court.

Congress also gave us jurisdiction over certain interlocutory appeals. See 28

U.S.C. § 1292. Additionally, Congress set a time limit on the filing of an appeal.

In civil actions, “no appeal shall bring any judgment, order or decree . . . before a

court of appeals for review unless notice of appeal is filed, within thirty days after

the entry of such judgment, order or decree.” 28 U.S.C. § 2107(a). 8 Rule 4(a)

8
28 U.S.C. § 2107 states in full:

T im e for appeal to court of appeals

(a) Except as otherwise provided in this section, no appeal shall bring
any judgment, order or decree in an action, suit or proceeding of a civil
nature before a court of appeals for review unless notice of appeal is
filed, within thirty days after the entry of such judgment, order or
decree.

(b) In any such action, suit or proceeding in which the United States or
an officer or agency thereof is a party, the time as to all parties shall be
sixty days from such entry.

(c) The district court may, upon motion filed not later than 30 days after
the expiration of the tim e otherwise set for bringing appeal, extend the
time for appeal upon a showing of excusable neglect or good cause. In
addition, if the district court finds--

(1) that a party entitled to notice of the entry of a judgment

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implements the statute.

For nearly sixty years we have treated the timely filing of a notice of appeal

in both criminal and civil actions as mandatory and jurisdictional. See, e.g.,

United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004); Dodge v. Cotter

Corp., 328 F.3d 1212, 1220 (10th Cir. 2003); Brumark Corp. v. Samson Res.

Corp., 57 F.3d 941, 949 (10th Cir. 1995); Swihart v. United States, 169 F.2d 808,

808 (10th Cir. 1948) (then F ED . R. C RIM . P. 37); Jensen v. United States, 160 F.2d

104, 104 (10th Cir. 1947) (same). Thus, a party’s failure to timely file a notice of

appeal w ould result in dismissal of the appeal for lack of jurisdiction. See, e.g.,

Torres, 372 F.3d at 1164; Swihart, 169 F.2d at 808. The Supreme Court seemed

to agree in United States v. Robinson, 361 U.S. 220, 224 (1960), and subsequent

cases. See, e.g., Hohn v. United States, 524 U.S. 236, 247 (1998); Budinich v.

Becton Dickinson & Co., 486 U.S. 196, 203 (1988); Browder v. Director, Dep’t of

or order did not receive such notice from the clerk or any
party within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180 days after entry of
the judgment or order or within 7 days after receipt of such notice,
whichever is earlier, reopen the time for appeal for a period of 14 days
from the date of entry of the order reopening the time for appeal.

(d) This section shall not apply to bankruptcy matters or other
proceedings under Title 11.

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Corrs. of Ill., 434 U.S. 257, 264 (1978).

However, two recent Supreme Court cases appear (at least at first blush) to

call into doubt this long line of precedent. 9 The first case, Kontrick, involved

Rules 4004(a), (b) and 9006(b)(3) of the Federal Rules of Bankruptcy. 1 0 There,

Kontrick filed a Chapter 7 bankruptcy petition. In an untimely amended

complaint, the creditor objected to the discharge, alleging with particularity

Kontrick had fraudulently transferred money to his wife, first by removing

Kontrick’s name from the family’s once-joint checking account and then by

continuing to deposit his salary checks in the account, from which his wife

routinely paid family expenses (the family account claim). Throughout the

litigation, Kontrick defended the family account claim on the merits. The

bankruptcy court eventually granted the creditor summary judgment on the family

account claim and denied discharge. In his motion for reconsideration, Kontrick

9
W e have yet to decide this issue. See Carpenter v. Boeing Co., 456 F.3d
1183, 1190 n.1 (10th Cir. 2006) (noting Eberhart “casts doubt on the notion that
the timeliness of notices of appeal generally is jurisdictional” but not deciding the
issue); In re Special Grand Jury 89-2, 450 F.3d 1159, 1166 n.2 (10th Cir. 2006)
(“Because we conclude that Appellants’ notices of appeal were timely, we do not
need to resolve today whether timeliness of a notice of appeal is jurisdictional.”).
10
Rule 4004(a) requires a party opposing a debtor’s discharge to file a
complaint no later than sixty days after the first date set for the meeting of the
creditors. Rule 4004(b) allows the court to extend this time period for cause if
the motion to extend is filed before the sixty days has expired. Rule 9006(b)(3)
allows enlargement of the time for filing a complaint under Rule 4004(a) “only to
the extent and under the conditions stated in [that rule].”

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argued for the first time that the court lacked jurisdiction over the family account

claim because the complaint raising it was untimely under Rules 4004(a), (b) and

9006(b)(3). The court denied the motion, holding these rules were not

jurisdictional and Kontrick had waived the right to assert the timeliness of the

amended complaint by failing to raise it prior to the court reaching the merits.

The Supreme Court agreed. It concluded Rules 4004(a),(b) and 9006(b)(3)

were not jurisdictional but rather “claim processing rules” which can be forfeited

if the party asserting them waits too long to raise them. Kontrick, 540 U.S. at

447, 454. In doing so, it explained:

Courts, including this Court, it is true, have been less than meticulous
in this regard; they have more than occasionally used the term
“jurisdictional” to describe emphatic time prescriptions in rules of
court. . . . [C]lassify[ing] time prescriptions, even rigid ones, under the
heading “subject matter jurisdiction” can be confounding. Clarity
would be facilitated if courts and litigants used the label
“jurisdictional” not for claim-processing rules, but only for
prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction) falling within a
court’s adjudicatory authority.

Id. at 454-55 (citations and quotations omitted).

The next case, Eberhart, addressed Rules 33 and 45(b)(2) of the Federal

Rules of Criminal Procedure. 1 1 There, Eberhart was convicted after a jury trial of

11
At the time Eberhart was decided, Rule 33(b) required a motion for new
trial based on any ground other than newly discovered evidence to be filed within
seven days of the verdict or finding of guilty or within some other time set by the
court in an order issued during that same seven-day period. Rule 45(b)(2)
provided this time period could not be extended except as stated in Rule 33. Both

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conspiring to distribute cocaine. On the last day available for the filing of post-

trial motions, he filed a motion for judgment of acquittal or, in the alternative, for

a new trial alleging one ground. Almost six months later, Eberhart filed a

supplemental memorandum supporting his motion, raising two new grounds. The

government opposed the motion on the merits. The district court granted a new

trial, citing all three grounds raised by Eberhart. The government appealed,

arguing for the first time that the supplemental memorandum was untimely under

Rule 33 and therefore the district court erred in considering the additional

arguments raised therein. The Seventh Circuit reversed. W hile it recognized that

Rules 33 and 45(b) were probably claim-processing rules subject to forfeiture if

not timely asserted under Kontrick, it felt bound by Supreme Court precedent

holding they were “mandatory and jurisdictional.” Because the supplemental

memorandum had been filed outside Rule 33’s seven-day time period, the Seventh

Circuit determined the district court had lacked jurisdiction to grant a new trial.

The Supreme Court disagreed. It concluded Rules 33 and 45(b), like bankruptcy

rules 4004 and 9006(b)(3), are not jurisdictional but merely inflexible “claim

processing rules” that will assure relief to a party who properly raises them but

not to one who forfeits them. Eberhart, 126 S.Ct. at 405, 407.

rules have since been amended. Rule 33(b) removed the requirement that the
court must act within seven days if it sets another time for filing a motion for new
trial and a conforming amendment was made to Rule 45. In addition, while the
defendant must still file a motion for new trial within seven days, a motion for
extension of time is permitted under Rule 45 and the court may consider an
untimely motion if it determines the defendant’s delay was due to excusable
neglect.

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 Neither Eberhart nor Kontrick affects the jurisdictional nature of the timely

filing of an civil appeal. 1 2 Kontrick involved bankruptcy rules 4004 and 9006;

Eberhart involved criminal procedural rules 33 and 45. None of these rules

derive expressly from a statute. Rule 4(a), on the other hand, implements 28

U.S.C. § 2107. And that statute is specifically mentioned in Kontrick as an

example of a jurisdictional provision containing a “built-in time constraint[].”

540 U.S. at 453 n.8. This is consistent with Barnhart v. Peabody, in which the

Supreme Court explained “that some time limits are jurisdictional even though

expressed in a separate statutory section from jurisdictional grants.” 537 U.S.

149, 159 n.6 (2003). The Court specifically cited 28 U.S.C. §§ 1291 and 2107 as

an example. 1 3 Id.

12
The Sixth Circuit has reached the same conclusion with regard to Rule
4(a)(6) of the Federal Rules of Appellate Procedure. See Bowles v. Russell, 432
F.3d 668, 671 n.1 (6th Cir. 2005).
13
There is no statute equivalent to § 2107 for criminal appeals. The time
limit for filing a criminal appeal is, and has always been, set by rule. In 1933,
Congress gave the Supreme Court authority to promulgate rules regulating the
time and manner for taking appeals in criminal cases. Robinson, 361 U.S. at 226.
Pursuant to that authority, the Supreme Court promulgated thirteen rules; Rule III
provided a five-day time limit for the taking of an appeal in a criminal case. Id.
Courts uniformly held this rule w as “mandatory and jurisdictional” and untimely
appeals were dismissed regardless of excuse. Id. at 226-27. This rule was later
moved to Rule 37 of the Federal Rules of Criminal Procedure and then to Rule
4(b) of the Federal Rules of Appellate Procedure. Under the current rule, a
defendant has ten days to file a notice of appeal and the government has thirty
days (if it is entitled to file an appeal). See F ED . R. A PP . P. 4(b)(1).

W e do not believe the absence of a statute affects the jurisdictional nature

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 Eberhart does not change Kontrick or Barnhart in that regard. W hile

Eberhart seems, superficially, to suggest in its discussion of United States v.

Robinson, 361 U.S. 220 (1960), that the timely filing of a notice of appeal is not

jurisdictional, a close reading of Eberhart, in conjunction with Robinson, reveals

it did nothing of the sort.

In Robinson, the defendants filed their notices of appeal eleven days late.

The government moved to dismiss the untimely appeals for lack of jurisdiction

pursuant to criminal rule 37(a)(2). 1 4 The defendants responded to the motion

alleging the late filings were due to a misunderstanding as to whether the notices

were to be filed by them or their counsel. The appellate court ruled the notices of

appeal, although untimely, were sufficient to confer jurisdiction on it if the

district court had found under criminal rule 45(b) that the failure to file the

appeals w ithin the ten day time limit was the result of excusable neglect. 1 5

of a timely notice of appeal in a criminal case. As we conclude, Robinson and the
jurisdictional nature of the timely filing of a notice of appeal, whether civil or
criminal, were not overruled by Eberhart or Kontrick. M oreover, the rule
establishing the time limit for filing a criminal appeal was authorized by
Congress. Nevertheless, the issue is not before us and we do not resolve it.
14
Rule 37(a)(2) is now codified at Rule 4(b) of the Federal Rules of
Appellate Procedure. See supra n.13.
15
At that time, Rule 45(b) provided:

Enlargement. When an act is required or allowed to be done at or within
a specified time, the court for cause shown may at any time in its
discretion (1) with or without motion or notice, order the period

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Because it was unable to determine from the record whether the district court had

so found, the appellate court remanded to the district court for such

determination. On remand, the district court found excusable neglect. Thus, the

appellate court denied the government’s motion to dismiss.

Before the Supreme Court, “the single question presented [was] whether the

filing of a notice of appeal in a criminal case after expiration of the time

prescribed in Rule 37(a)(2) confers jurisdiction of the appeal upon the Court of

Appeals if the District Court, proceeding under Rule 45(b), has found that the late

filing of the notice of appeal was the result of excusable neglect.” Robinson, 361

U.S. at 222. The Court determined resolution of the issue depended upon the

proper interpretation of Rule 45(b). Id. at 222-23. The appellate court had read

Rule 45(b) to allow the district court discretion to permit a late appeal if the

untimeliness was due to excusable neglect. In its view, such discretion was not

an “enlargement” of the time for taking an appeal but rather “would be only to

‘permit the act to be done’ after expiration of the specified period.” Id. at 223.

enlarged if application therefor is made before the expiration of the
period originally prescribed or as extended by a previous order or (2)
upon motion permit the act to be done after the expiration of the
specified period if the failure to act was the result of excusable neglect;
but the court may not enlarge the period for taking any action under
Rules 33, 34 and 35, except as otherwise provided in those rules, or the
period for taking an appeal.

Robinson, 361 U.S. at 223.

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The Supreme Court rejected this interpretation, concluding it was in direct

conflict with Rule 45(b)’s plain language, which prohibited a district court from

enlarging the period for taking an appeal, even upon a finding of excusable

neglect, and nothing in Rule 45(b)’s history supported such interpretation. Id. at

226, 229.

Relevant to our analysis here, in its discussion, the Supreme Court noted

“[t]he courts have uniformly held that the taking of an appeal within the

prescribed time is mandatory and jurisdictional.” Id. at 229. It also stated:

It is quite significant that Rule 45(b) not only prohibits the court from
enlarging the period for taking an appeal, but, by the same language in
the same sentence, also prohibits enlargement of the period for taking
any action under Rules 33, 34 and 35, except as provided in those
Rules. That language is: “* * * but the court may not enlarge the period
for taking any action under Rules 33, 34 and 35, except as otherwise
provided in those rules, or the period for taking an appeal.” If, as the
C ourt of Appeals has held, the delayed filing of a notice of appeal--
found to have resulted from “excusable neglect”--is sufficient to confer
jurisdiction of the appeal, it would consistently follow that a District
Court may, upon a like finding, perm it delayed filing of a motion for
new trial under Rule 33, of a motion in arrest of judgment under Rule
34, and the reduction of sentence under Rule 35, at any time-months or
even years-after expiration of the periods specifically prescribed in
those Rules.

This is not only contrary to the language of those Rules, but also
contrary to the decisions of this Court.

Id. at 224-25 (footnotes omitted).

Relying on Robinson, the Seventh Circuit in Eberhart concluded Rules 33

and 45(b), like the timely filing of a notice of appeal, were mandatory and

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jurisdictional. Eberhart, 126 S.Ct. at 404. The Supreme Court rejected the

Seventh Circuit’s reliance on Robinson, concluding it did not address the subject-

matter jurisdiction of the district court. Id. at 405-06. It found Robinson’s

holding was “narrow and unremarkable”: “district courts must observe the clear

limits of the Rules of Criminal Procedure when they are properly invoked.” Id. at

406. It then observed that Robinson and subsequent cases holding that the timely

filing of a notice of appeal is mandatory and jurisdictional have “created some

confusion.” In making this statement, the Court was not questioning the holding

of these cases. It was merely noting the confusion these cases have had on non-

jurisdictional time prescription rules, i.e., causing courts, like the Seventh Circuit

in Eberhart, to erroneously conclude other time prescription rules, apart from the

timely filing of a notice of appeal, are also “mandatory and jurisdictional.” In

sum, Eberhart did not disturb the jurisdictional nature of 28 U.S.C. § 2107 or

Rule 4(a); it merely clarified that the fact these time prescription rules are

jurisdictional does not mandate that all time prescription rules are jurisdictional.

Even assuming, arguendo, that Eberhart can be read as calling into

question the jurisdictional nature of 28 U.S.C. § 2107, as well as Rule 4(a), we

decline to upset past precedent without an express ruling to that effect. Agostini

v. Felton, 521 U.S. 203, 237 (1997) (“[W ]e do not hold, that other courts should

conclude our more recent cases have, by implication, overruled an earlier

precedent. We reaffirm that if a precedent of this Court has direct application in

a case, yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving to this

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Court the prerogative of overruling its own decisions.”) (quotations omitted); see

also Conover v. Aetna US Health Care, Inc., 320 F.3d 1076, 1079 n.2 (10th Cir.

2003) (applying Agostini), cert. denied, 542 U.S. 936 (2004). W hen a statute

unambiguously constrains our jurisdiction, rules implementing that constraint

have passed muster with Congress and sixty years of jurisprudence have cemented

the jurisdictional nature of a timely notice of appeal in civil cases, it is not the

place of a court of appeals to engage in a contrary flight of fancy. Excursions

into that rarified air are the exclusive province of the United States Supreme

Court. 1 6

Notwithstanding the jurisdictional nature of the timely filing of an appeal,

nothing in Kontrick or Eberhart upsets our ability to enforce our ow n rules. 1 7 In

both cases, a party sought to enforce a rule after the court had reached the merits.

In both cases, the Supreme Court held the party had forfeited its right to invoke

the rule. N either case involved a court enforcing a rule. Indeed, a holding that a

court may not enforce its own rules unless a party timely invokes them w ould be

nonsensical. Such a holding would place a court at the mercy of the parties. This

result was recently rejected in Day v. M cDonough, 126 S.Ct. 1675 (2006).

16
Based on our conclusion, we need not address our ability to sua sponte
enforce our own rules. C.f. Day v. M cDonough, 126 S.Ct. 1675 (2006)
(upholding magistrate judge’s sua sponte dismissal of untimely habeas petition
even though timeliness requirement was not jurisdictional and the State had
erroneously conceded the petition was timely).
17
Not only do we have the power and duty to enforce our rules, we have the
ability to suspend any non-jurisdictional maxim. See F ED . R. A PP . P. 2
(perm itting us to suspend the appellate rules, except Rule 26(b), on our own
motion “to expedite a case or for other good cause”).

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 In Day, the Court addressed whether a federal court may sua sponte dismiss

a habeas petition as untimely even after the State has conceded the petition was

timely. There, Day filed a habeas petition pursuant to 28 U.S.C. § 2254. In its

answer, the State conceded the petition was timely due to statutory tolling. See

28 U.S.C. § 2244(d)(1)(A). Nevertheless, upon his own inspection of the

pleadings, the magistrate judge determined the State had miscalculated the tolling

time and the petition was untimely. After affording Day an opportunity to show

cause why the petition should not be dismissed as untimely and finding his

responses inadequate, the magistrate recommended dismissal. The district court

adopted this recommendation.

The Supreme Court upheld the magistrate’s sua sponte dismissal of Day’s

petition. It concluded a court may, but is not obligated to, sua sponte dismiss an

untimely habeas petition even where the State has not contested the petition’s

timeliness or has erroneously conceded the petition was timely. 1 8 Id. at 1681,

1684. “[While judges] surely have no obligation to assist attorneys representing

the State[,] if a judge does detect a clear computation error, no Rule, statute, or

constitutional provision commands the judge to suppress that knowledge.” Id. at

1684. It reached this decision despite the fact the timeliness requirement was not

jurisdictional and despite D ay’s argument, which Justice Scalia adopted in

dissent, that the civil rules require a statute of limitations defense to be raised in

18
Before doing so, a court must provide the parties “fair notice and an
opportunity to present their positions.” Day, at 1684. W e did so with an order to
show cause.

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the answer or it is forfeited. Id. at 1681-83, 1685, 1689.

Similarly, even though Defendants may have forfeited their right to

challenge the timeliness of the appeal by not raising it in a timely fashion, nothing

precludes us from enforcing Rule 4(a)’s time limitation sua sponte. 1 9

D ISM ISSED .

19
W e recognize we could have alerted Defendants to the untimeliness of
the appeal and allowed them the opportunity to file a motion to dismiss. In Day,
both the M ajority and Justice Scalia recognized the controversy may have been
avoided had the magistrate, rather than acting sua sponte, informed the State of
its error and entertained an amendment to the answer. 126 S.Ct. at 1683, 1687-
88. Contrary to Justice Scalia’s view that such procedure ensures the federal
rules are followed, the M ajority saw “no dispositive difference” between that
route and the procedure the magistrate employed. Id. W e too find no dispositive
difference between prompting Defendants to file a motion to dismiss and our sua
sponte dismissal. Indeed, unlike in Day, our sua sponte dismissal for
untimeliness is consistent with the appellate rules, which do not require
Defendants to “raise it or lose it.” In any event, Defendants have argued in favor
of dismissal in their jurisdictional brief, submitted upon invitation.

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