Philip Groves v. United States ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2937
PHILIP G. GROVES,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16‐cv‐2485 — Gary Feinerman, Judge.
____________________
ARGUED DECEMBER 3, 2018 — DECIDED OCTOBER 25, 2019
____________________
Before SYKES, BARRETT, and ST. EVE, Circuit Judges.
BARRETT, Circuit Judge. When a district court certifies an
order for review before final judgment, parties have only ten
days to petition us to hear the interlocutory appeal. Decades
ago, we provided a way to circumvent that deadline: district
courts could reenter or recertify their orders, restarting the
clock, whenever doing so would further the purpose of the
interlocutory review statute. But more recent Supreme Court
cases call that workaround into question. The Court has
2 No. 17‐2937
emphasized—as recently as a few months ago—that federal
courts have no authority to read equitable exceptions into
fixed filing deadlines. In light of the Court’s precedent, we
conclude that we were wrong to hold that district courts can
extend the ten‐day window by simply reentering or recertify‐
ing their orders. We therefore dismiss this appeal for lack of
jurisdiction.
I.
Philip Groves is an accountant who allegedly organized,
sold, and promoted abusive tax shelters related to distressed
Chinese debts in 2005. Ten years later, the IRS assessed a tax
penalty against him for this behavior. Groves sued the gov‐
ernment, arguing (among other things) that the catch‐all five‐
year statute of limitations for civil penalties, found in 28
U.S.C. § 2462, applied to the assessment against him—and
thus that the IRS acted too late.
The district court concluded that § 2462 didn’t apply, so in
May 2017 it granted the government’s motion to strike
Groves’s statute‐of‐limitations defense; in July, it denied
Groves’s motion for judgment on the pleadings for the same
reasons. But because it believed that the orders satisfied the
standard for immediate appeal provided in 28 U.S.C.
§ 1292(b), the court certified the orders for interlocutory re‐
view on August 8th.
Groves had the district court’s permission to appeal, but
§ 1292(b) also required him to seek permission from this court
within ten days of the district court’s certification. He at‐
tempted to obtain our permission on August 18th, the tenth
day after the district court’s certification order, by emailing an
application to appeal to the Seventh Circuit Clerk’s Office. But
No. 17‐2937 3
a paralegal mistyped the email address, so the email was not
delivered. An automated message noting the failure, sent to
the paralegal within minutes, landed in a spam folder. The
paralegal discovered that notification on Sunday, August
20th, and emailed the application to the correct address that
day. On August 21st, Groves informed the district court of the
mix‐up and asked it to recertify its orders to restart the ten‐
day clock. The court complied, entering an otherwise identi‐
cal second order certifying its May and July orders for inter‐
locutory appeal. Groves refiled his application the next day,
and we provisionally granted it.
Both parties argue that we have jurisdiction to hear this
appeal even though Groves missed the initial deadline. The
government, consistent with the position we took in Nuclear
Engineering Co. v. Scott, maintains that § 1292(b)’s deadline is
jurisdictional but that the statute allows a district court to
recertify an order in order to reset the clock. See 660 F.2d 241(7th Cir. 1981). Groves likewise urges us to adhere to Nuclear
Engineering, but he also advances an alternative argument: he
maintains that § 1292(b)’s ten‐day deadline is not jurisdic‐
tional, but rather a claim‐processing rule that the government
has waived here.
II.
The general rule is that “appellate review must await final
judgment.” Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 716
(2019). But when a district court determines that one of its or‐
ders “involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an im‐
mediate appeal from the order may materially advance the
ultimate termination of the litigation,” it can say so in the or‐
der, enabling the disappointed litigant to ask the court of
4 No. 17‐2937
appeals to review the order immediately. 28 U.S.C. § 1292(b).
The court of appeals has discretion to permit the appeal “if
application is made to it within ten days after the entry of the
order.” Id. A district court can include the certification in the
original order or add it afterward by amendment; in the latter
circumstance, “the time to petition runs from entry of the
amended order.” FED. R. APP. P. 5(a)(3). In other words, the
clock does not start until the litigant is actually authorized to
file a petition.
Despite Groves’s argument to the contrary, the ten‐day
deadline is not a claim‐processing rule. The Supreme Court
has drawn a bright line: “If a time prescription governing the
transfer of adjudicatory authority from one Article III court to
another appears in a statute, the limitation is jurisdictional;
otherwise the time specification fits within the claim‐pro‐
cessing category.” Hamer v. Neighborhood Hous. Servs. of Chi.,
138 S. Ct. 13, 20 (2017) (citations omitted). Section 1292(b) is
jurisdictional because it “govern[s] the transfer of adjudica‐
tory authority” from the district court, which issued the order,
to the court of appeals, which reviews it. Id. Under a straight‐
forward application of Hamer, § 1292(b)’s time bar is jurisdic‐
tional.
Groves resists this conclusion by arguing that no statutory
deadline is jurisdictional unless Congress clearly says so. And
he maintains that “Congress did [nothing] ‘special’ to suffuse
the ten‐day deadline to petition for permission to file an inter‐
locutory appeal with jurisdictional significance.” Groves
Supp. Br. at 12. But Groves’s premise—that the jurisdictional
status of a deadline always depends on a clear‐statement
rule—is mistaken. The clear‐statement rule applies only when
a time limit appears in a statute that does not govern an
No. 17‐2937 5
Article III court’s adjudicatory authority. See id. at n.9 (“In
cases not involving the timebound transfer of adjudicatory author‐
ity from one Article III court to another, we have additionally ap‐
plied a clear‐statement rule ….” (emphasis added)).1 In that
circumstance, the clear‐statement rule helps the court deter‐
mine whether Congress has exercised its power “to attach the
conditions that go with the jurisdictional label to a rule that
we would prefer to call a claim‐processing rule.” Henderson,
562 U.S. at 435; see also Hamer, 138 S. Ct. at 20 n.9. But when a
time limit appears in a statute that addresses an Article III
court’s adjudicatory authority, as § 1292(b) does, the default
runs the other way—the limit is presumptively jurisdictional.
That presumption is consistent with the “longstanding treat‐
ment of statutory time limits for taking an appeal as jurisdic‐
tional”—a principle that the Court emphasized in Bowles v.
Russell, 551 U.S. 205, 210 (2007). See also Hamer, 138 S. Ct. at 20.
Groves has a backup argument. Even if the clear‐state‐
ment rule is narrower in scope, he says, it applies here because
§ 1292(b) does not really “govern[] the transfer of adjudica‐
tory authority” from the district court to the court of appeals.
See Hamer, 138 S. Ct. at 20. A petition for permissive appeal
does not stay the proceedings in the district court, and the dis‐
trict court retains jurisdiction over the case even if the petition
1 Consistent with this principle, the cases on which Groves relies ap‐
ply the clear‐statement rule to statutes that do not address the adjudica‐
tory authority of an Article III court. See, e.g., United States v. Kwai Fun
Wong, 135 S. Ct. 1625 (2015) (the FTCA’s statute of limitations); Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145 (2013) (a deadline for healthcare pro‐
viders to file an administrative appeal for Medicare reimbursement); Hen‐
derson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (a time limit for a
veteran to appeal the administrative denial of benefits). These cases there‐
fore do not help Groves.
6 No. 17‐2937
is granted. See § 1292(b); United States v. City of Chicago, 534
F.2d 708, 711 (7th Cir. 1976) (“An appeal from an interlocutory
order does not divest the trial court of jurisdiction.”). Thus,
Groves says, the statute does not actually “transfer” jurisdic‐
tion to the court of appeals. And without such a transfer, he
contends, the statute’s deadline falls in the “claim processing”
category unless Congress expressly says otherwise.
This argument is meritless. For one thing, § 1292(b) does
govern the transfer of adjudicatory authority to the courts of
appeals; it empowers the court of appeals to review a district‐
court order, and once that order is on appeal, the district court
can no longer modify it. See Aljabri v. Holder, 745 F.3d 816, 820
(7th Cir. 2014) (“The retained jurisdiction [under § 1292(b)] al‐
lows the district court to proceed with other aspects of the
case; it does not mean that the district court can continue to
modify the same order that is up on interlocutory appeal.”).
But in any event, Groves puts far too much weight on Hamer’s
use of the word “transfer.” Hamer does not suggest that the
jurisdictional status of a deadline (or other limitation) turns
on the details of a transfer—for example, whether the trans‐
ferred authority encompasses the whole case or a single order.
Hamer, synthesizing a line of precedent, makes clear that the
relevant inquiry is whether the time limit appears in a juris‐
dictional statute—one that “speak[s] to the power of the court
rather than to the rights or obligations of the parties.” See Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 (2010) (citations
omitted). If the limit appears in a statute that speaks to the
power of the court, it is a limitation on the power of the court.
See In re Sobczak‐Slomczewski, 826 F.3d 429, 432 (7th Cir. 2016)
(explaining that a timeliness condition located in a jurisdic‐
tion‐granting statute is jurisdictional); see also Hamer, 138 S. Ct.
at 20; Bowles, 551 U.S. at 210. If it appears in a statute that
No. 17‐2937 7
speaks to the rights or obligations of parties, it is a claim‐pro‐
cessing rule unless Congress says otherwise. See Kwai Fun
Wong, 135 S. Ct. at 1633 (“This Court has often explained that
Congress’s separation of a filing deadline from a jurisdic‐
tional grant indicates that the time bar is not jurisdictional.”);
Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006) (concluding
that a statutory threshold that “appears in a separate provi‐
sion and does not speak in jurisdictional terms or refer in any
way to the jurisdiction of the district courts” was not jurisdic‐
tional in nature (citation omitted)).
There can be no doubt that § 1292(b) “speak[s] to the
power of the court rather than to the rights or obligations of
the parties.” See Reed Elsevier, 559 U.S. at 160; see also Tidewater
Oil Co. v. United States, 409 U.S. 151, 168 (1972) (“[Section]
1292(b) was intended to establish jurisdiction in the courts of
appeals to review interlocutory orders ….”); Yamaha Motor
Corp. v. Calhoun, 516 U.S. 199, 205 (1996) (“As the text of
§ 1292(b) indicates, appellate jurisdiction applies to the order
certified to the court of appeals …. But the appellate court
may address any issue fairly included within the certified or‐
der ….” (emphasis removed)). That means that § 1292(b)’s
deadline is jurisdictional. See Hamer, 138 S. Ct. at 20. And in‐
deed, neither we nor any other circuit has questioned the ju‐
risdictional status of the ten‐day limit. See Nuclear Engineering,
660 F.2d at 245 (“Appeals brought pursuant to § 1292(b) must
be filed within 10 days of the entry of the certification order,
and that requirement is jurisdictional.”); see also, e.g., In re City
of Memphis, 293 F.3d 345, 348 (6th Cir. 2002) (“Failure to file an
appeal within the 10‐day period is a jurisdictional defect that
deprives this court of the power to entertain an appeal.”);
Safety‐Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 866 (4th
Cir. 2001) (“The ten‐day filing requirement is jurisdictional
8 No. 17‐2937
and therefore may not be waived.”). The question with which
we and other circuits have struggled is whether this jurisdic‐
tional deadline can be extended. We now turn to that issue.
III.
The statute does not authorize either district courts or the
courts of appeals to extend § 1292(b)’s deadline for any rea‐
son. Yet we have permitted district courts to do indirectly
what they cannot do directly: give litigants more time to file a
petition in the court of appeals. In Nuclear Engineering Co., we
held that if there are equitable reasons to permit an appeal
even after the statutory deadline has passed, a district court
may restart the ten‐day clock by either vacating and reenter‐
ing or simply by recertifying its order. 660 F.2d at 246–47. We
reasoned that a district court should not be driven by “rigid”
adherence to the statutory deadline but should instead con‐
sider the value of an immediate appeal, along with the liti‐
gant’s culpability for the delay and whether recertification
would prejudice the opposing party. Id. at 247. Other circuits
have approved this sort of indirect extension as well, alt‐
hough there is disagreement about the factors that a district
court should apply in deciding whether to grant it. All of
these cases were decided before Bowles v. Russell, 551 U.S. 205,
214 (2007), introduced the Court’s renewed emphasis on the
federal courts’ lack of authority to read equitable exceptions
into fixed statutory deadlines. See In re City of Memphis, 293
F.3d at 350;2 Safety‐Kleen, Inc. (Pinewood), 274 F.3d at 866–67;
2 The Sixth Circuit originally held that district courts could not restart
the clock by recertification. See Woods v. Balt. & Ohio R.R. Co., 441 F.2d 407,
408 (6th Cir. 1971). It reversed course in In re City of Memphis, ending the
circuit split that had developed in the years following Woods.
No. 17‐2937 9
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1291 n.9 (11th
Cir. 1998); English v. Cody, 146 F.3d 1257, 1259 n.1 (10th Cir.
1998); Marisol A. ex rel. Forbes v. Giuliani, 104 F.3d 524, 528–29
(2d Cir. 1996); In re Benny, 812 F.2d 1133, 1137 (9th Cir. 1987);
Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir. 1981);
Braden v. Univ. of Pittsburgh, 552 F.2d 948, 954–55 (3d Cir. 1977)
(en banc); In re La Providencia Dev. Corp., 515 F.2d 94, 95 n.1
(1st Cir. 1975).3
We acknowledged in Nuclear Engineering Co. that this is a
“rather thorny question” given the ostensibly clear language
of the statute, 660 F.2d at 245, and while we have never revis‐
ited the case, we have never exercised § 1292(b) jurisdiction in
reliance on it either.4 Nuclear Engineering Co., however, has
3 As Justice Stevens has noted, “this view essentially renders the 10‐
day time limitation, if not a nullity, essentially within the discretion of a
district court to extend at will.” See Baldwin Cty. Welcome Ctr. v. Brown, 466
U.S. 147, 162 (1984) (Stevens, J., dissenting). Baldwin County is a puzzling
case. After describing the jurisdictional issue as a “close one” subject to a
circuit split, the dissent concluded with little explanation that recertifica‐
tion is effective to extend the jurisdictional deadline. Id. The majority
didn’t address the question at all, so it is unclear whether it viewed the
procedural posture differently or thought that interlocutory jurisdiction
was proper. Even if the majority approved recertification sub silentio,
however, its assumption would be a “drive‐by jurisdictional ruling[]”
lacking precedential effect. Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 91 (1998). Moreover, as we explain in the text, more recent Supreme
Court decisions have severely undermined the proposition that a federal
court can extend a fixed jurisdictional deadline, whether directly or indi‐
rectly.
4 We have only cited Nuclear Engineering Co. eight times in the inter‐
locutory‐appeal context, and none of those cases relies on its holding that
a recertification can restart the clock for an appeal under § 1292(b). Seven
of these cases cite it for a different proposition. See In re Hamilton, 122 F.3d
13, 14 (7th Cir. 1997); Hillman v. Resolution Tr. Corp., 66 F.3d 141, 143–44
10 No. 17‐2937
become more than a debatable one‐off; intervening Supreme
Court precedent has undermined it. Just a few months ago,
the Court emphasized the rigidity of filing deadlines for in‐
terlocutory appeals even when they appear in claim‐processing
rules. See Nutraceutical Corp., 139 S. Ct. at 714–15. Nuclear En‐
gineering Co. permits a district court to make an end‐run
around a jurisdictional deadline—and jurisdictional deadlines
are even more immoveable because they cannot be waived or
forfeited. See Nestorovic v. Metro. Water Reclamation Dist. of
Greater Chi., 926 F.3d 427, 430 (7th Cir. 2019). Because Nuclear
Engineering Co. is inconsistent with the Court’s approach to
fixed filing deadlines, we overrule it.5
In doing so, we begin with the basic principle that when a
jurisdictional statute sets a firm deadline, courts have no au‐
thority to extend it. Bowles, 551 U.S. at 209 (“[T]he taking of an
appeal within the [statutorily] prescribed time is ‘mandatory
and jurisdictional.’” (citation omitted)). This can lead to harsh
results, especially when there are strong equitable reasons to
give a litigant more time. In Bowles, for example, a criminal
defendant—seeking to appeal his fifteen‐year‐to‐life
(7th Cir. 1995); Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990); Edwardsville
Nat’l Bank & Tr. Co. v. Marion Labs., Inc., 808 F.2d 648, 650 (7th Cir. 1987);
Tamari v. Bache & Co. (Leb.) S.A.L., 730 F.2d 1103, 1104 n.2 (7th Cir. 1984);
Hewitt v. Joyce Beverages of Wis., Inc., 721 F.2d 625, 626 (7th Cir. 1983); In re
Oil Spill by the “Amoco Cadiz” off the Coast of France Mar. 16, 1978, 659 F.2d
789, 793 n.5 (7th Cir. 1981). The eighth, an unpublished decision, cites it
approvingly for this proposition but does not exercise interlocutory juris‐
diction in reliance on it. See Coleman v. Davis, 28 F. App’x 541, 542 (7th Cir.
2002).
5 Because this opinion overrules our precedent and creates a circuit
split, it has been circulated among all judges of this court in regular active
service. See 7TH CIR. R. 40(e). No judge voted to rehear the case en banc.
No. 17‐2937 11
sentence—filed his notice of appeal three days after the statu‐
tory deadline because the district court told him the wrong
due date. 551 U.S. at 207. Still, the Court concluded that it had
“no authority to create equitable exceptions to jurisdictional
requirements.” Id. at 214. And in In re Sobczak‐Slomczewski, we
held that a district court lacked jurisdiction over a bankruptcy
appeal filed one day after the fourteen‐day deadline, even
though the appellant didn’t receive the order in the mail until
the fourteenth day. 826 F.3d at 432. Deadlines are by nature
arbitrary, which can make dismissal for failure to comply
with them seem particularly harsh. But the Court has been
unwavering in its insistence that our adjudicatory authority
is limited by the Constitution and Congress, and no result jus‐
tifies our intervening where we have not been granted the
power to do so. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 101–02 (1998) (“For a court to pronounce upon the
meaning or the constitutionality of a state or federal law when
it has no jurisdiction to do so is, by very definition, for a court
to act ultra vires.”).
Indeed, the Court has emphasized that even non‐jurisdic‐
tional time limits may require bright‐line application. See
Nutraceutical Corp., 139 S. Ct. at 714 (explaining that “some
claim‐processing rules are ‘mandatory’—that is, they are ‘un‐
alterable’ if properly raised by an opposing party” (citation
omitted)). In Nutraceutical Corp., the Court concluded that the
fourteen‐day deadline to petition to appeal a class‐certifica‐
tion decision—an interlocutory order—could not be extended
by a court of appeals. Id. at 715. The Court based that conclu‐
sion on the “plain import” of the time limit, Federal Rule of
Appellate Procedure 26(b)(1)’s prohibition on courts of ap‐
peals extending the deadline for petitions for permission to
appeal, and the lack of any provision allowing for equitable
12 No. 17‐2937
override of those rules. Id. Altogether, the relevant rules “ex‐
press[ed] a clear intent to compel rigorous enforcement of [the
fourteen‐day] deadline, even where good cause for equitable
tolling might otherwise exist.” Id. And “[w]here the pertinent
rule or rules invoked show a clear intent to preclude tolling,
courts are without authority to make exceptions merely be‐
cause a litigant appears to have been diligent, reasonably mis‐
taken, or otherwise deserving.” Id. at 714.
Section 1292(b) indisputably bars the courts of appeals
from granting litigants more time—even Nuclear Engineering
Co. recognized that. See 660 F.2d at 246. The statute authorizes
a court of appeals to grant a petition to appeal only “if appli‐
cation is made to it within ten days after entry of the order.”
28 U.S.C. § 1292(b). And Rule 26(b)(1) reinforces that limit by
expressly prohibiting courts of appeals from extending the
time to petition for permission to appeal. See also FED. R.
APP. P. 5(a)(2) (“The petition [for permission to appeal] must
be filed within the time specified by the statute or rule author‐
izing the appeal.” (emphasis added)). If a litigant asked us to
toll the clock, there is no question that we would have to re‐
fuse.
It is similarly indisputable that § 1292 prohibits district
courts from granting litigants extensions outright. An order
purporting to allow a litigant fifteen days in which to file a
§ 1292(b) petition would be flatly inconsistent with the stat‐
ute’s ten‐day limit. Cf. Bowles, 551 U.S. at 207–08 (holding that
a district court lacks authority to grant a litigant a seventeen‐
day extension to file a notice of appeal when the statute set a
fourteen‐day limit). And while district courts can extend the
time for filing a notice of appeal on grounds of excusable ne‐
glect, 28 U.S.C. § 2107(c), no statute gives them similar
No. 17‐2937 13
authority to extend the time for filing a petition for permission
to appeal. Cf. FED. R. APP. P. 26(b)(1) (treating notices of appeal
and petitions for permission to appeal differently). That dis‐
tinction makes sense: a litigant who loses the opportunity to
appeal a final judgment forever loses the ability to appeal, but
a litigant who loses the opportunity to file an interlocutory
appeal has another chance later. Interlocutory appeals are ex‐
ceptional, so their limitations are “purposefully unforgiving.”
Nutraceutical Corp., 139 S. Ct. at 716.
Nuclear Engineering Co. permits a district court to make an
end‐run around this limit with the fiction that recertifying an
order isn’t the same thing as granting more time. But we have
foreclosed that tactic in analogous contexts. The reentry of a
collateral order does not restart the time to appeal. See People
Who Care v. Rockford Bd. of Educ. Dist. No. 205, 921 F.2d 132,
135 (7th Cir. 1991). Nor does mere reentry of a judgment. See
FTC v. Minneapolis‐Honeywell Regulator Co., 344 U.S. 206, 211
(1952) (“[T]he mere fact that a judgment previously entered
has been reentered or revised in an immaterial way does not
toll the time within which review must be sought.”); Wilson v.
United States, 413 F.3d 685, 687 (7th Cir. 2005) (noting that dis‐
trict courts cannot simply restart the clock “by vacating and
reentering a judgment”). And we have made clear that mo‐
tions for post‐judgment relief, FED. R. CIV. P. 60(b), may not be
used to make “an end run around the deadline for filing an
appeal” either. See Mendez v. Republic Bank, 725 F.3d 651, 661
(7th Cir. 2013). Treating reentry of an order or judgment as a
mechanism for restarting the clock renders a deadline subject
to tolling, even when tolling is otherwise prohibited.
That’s what Nuclear Engineering Co. does to § 1292(b). The
statute sets a ten‐day limit that district courts can’t toll, yet
14 No. 17‐2937
Nuclear Engineering Co. permits them to toll it anyway. This
tactic is inconsistent with the statute’s imposition of a fixed
jurisdictional deadline, and its text underscores that. The stat‐
ute provides that when a district court enters “an order not
otherwise appealable” and concludes that it meets the statu‐
tory standards for interlocutory appeal, it “shall so state in
writing in such order.” 28 U.S.C. § 1292(b) (emphasis added).
That statement may appear in the merits order when it issues
or be added by amendment. FED. R. APP. P. 5(a)(3). But once it
is certified, it becomes “the order” from which the clock runs,
and accordingly “the order” from which a court of appeals
may permit an appeal—so long as it receives the application
within ten days of the order’s entry. See 28 U.S.C. § 1292(b)
(the court of appeals may “permit an appeal to be taken from
such order, if application is made to it within ten days after en‐
try of the order” (emphasis added)). If the application is not
made within ten days, the order is no longer appealable. The
statute does not contemplate that the order’s appealability
can be revived by a new certification; rather, the course has
run for “such order” once the statutory period lapses.
Where, as here, a deadline for appeal is fixed, it “cannot
be enlarged just because [a] court in its discretion thinks it
should be enlarged.” See Minneapolis‐Honeywell Regulator Co.,
344 U.S. at 211. Accordingly, we overrule the portion of Nu‐
clear Engineering Co. holding that mere recertification (or va‐
catur and reentry) of an order for interlocutory appeal may
extend the jurisdictional deadline.6 This will not work a sea
6 Today’s decision does not address whether or to what extent sub‐
stantive reconsideration of a previously certified order might allow recer‐
tification to restart the clock. Cf. Minneapolis‐Honeywell Regulator Co., 344
U.S. at 211–12 (“Only when the lower court changes matters of substance,
No. 17‐2937 15
change in our case law. Interlocutory appeals under § 1292(b)
are rare, and, as we noted earlier, we have never relied on Nu‐
clear Engineering Co. to exercise jurisdiction in this circum‐
stance. Cf. Bowles, 551 U.S. at 214 (overruling the “unique cir‐
cumstances” doctrine, which permitted a district court to ex‐
cuse compliance with a jurisdictional requirement, when the
Court had relied on it “only once in the last half century”).
Nor are we disturbing the reliance interests of litigants, who
have minimal reliance interests in procedural and jurisdic‐
tional rules. See Hohn v. United States, 524 U.S. 236, 251 (1998)
(“The role of stare decisis [] is ‘somewhat reduced in the case
of a procedural rule which does not serve as a guide to lawful
behavior.’” (citation and alterations omitted)). Most im‐
portant, though, is that the Court’s intervening precedent, not
to mention our own, has rendered Nuclear Engineering Co. an
aberration.
***
Because Groves failed to file his petition for permission to
appeal within ten days of the district court’s initial certifica‐
tion order, we lack jurisdiction to consider it and DISMISS his
appeal.
or resolves a genuine ambiguity, in a judgment previously rendered
should the period within which an appeal must be taken … begin to run
anew.” (footnotes omitted)); see also Gary v. Sheahan, 188 F.3d 891, 893 (7th
Cir. 1999).