We'll hear argument first this morning case 171094, Neutraceutical Corporation versus Lampert. Mr. Houston. Mr. Chief Justice, and may it please the Court. In the proceedings below, respondent filed his Rule 23F petition, months late, and Neutraceutical timely objected. Although this Court has held that mandatory claim processing rules are unalterable when properly invoked, the Ninth Circuit in this case created broad and unprecedented equitable exceptions to excuse Lambert's late filing. Critically, in this case, this Court has twice considered language in a federal rule that is virtually identical to the federal rules at issue in this case. And in both those cases, in the Carlisle and the Robinson cases, this Court rejected equitable exceptions even when faced with facts far more empathetic than those presented here. The Counselor, I thought that both sides agreed that if the motion for reconsideration is filed within 14 days, within that period, then there is tolling until the motion is decided. Is that so? That is correct, Justice Ginsburg. It is in that form of equitable tolling. It is not a form of equitable tolling, Your Honor. Instead, as held by this Court in U.S.V. Deeter, it's based on a traditional and virtually unquestioned practice that is premised upon three main policy points to prevent premature appeals, to develop and strengthen the record, and to respect the authority of the District Court. It's important to realize that this doctrine could not open the door to equitable exceptions for claim processing rules, because in the Ibarra, Deeter, and Healy cases, those dealt with a statute, 3731, establishing the deadline in a criminal case, and thus it was a jurisdictional case. So the application of that rule in the context of a criminal case with jurisdictional rules, in fact, told those jurisdictional deadlines. And so therefore, pursuant to the Court's holdings in Hamer and elsewhere, that is not an equitable exception. Kagan, Mr. Houston, given the reasons that you just stated for that rule, why is the rule limited to emotion for reconsideration that's filed during the 14-day window? Another word, supposed emotion for reconsideration, was filed in a timely manner for such emotion, but after the 14-day period, why wouldn't the same reasons apply? Because, Your Honor, if that reasoning apply, in this instance, for instance, there was actually no deadline for filing of emotion for reconsideration in the Central District of California
. But let's assume for purposes of your question we had a 30-day deadline. If that 30-day deadline were imposed in this case, and one could file on the 30th day and begin tolling, that would render the 14-day deliberately small window that the advisory committee drafters created in order to minimize the disruption and delay in the context of class action cases, a nullity. Because in any instance where you would have a longer deadline for emotion for reconsideration, you could wait out that period and avoid the window that was intentionally created by the drafters. And I would like to direct the Court's attention specifically to the advisory committee notes the 1998 amendment to rule 23F, where they specifically stated the importance of the short window to deliberately keep the time as short as possible. Kagan. It just seems as though the exception that you admit, which is the exception for filing a motion for reconsideration within the 14-day period, also effectively renders that 14-day period a nullity, right? Because it stops it in its tracks. And then once the motion for reconsideration has been dealt with, as I understand the agreement between the parties, the clock goes all the way back to the beginning. So given that what you, the exception you admit renders the 14-day period a nullity, again, I just wonder why the exact same reasons, practices, traditions don't suggest that, for example, as in, as what the example you gave, if the motion for reconsideration is timely filed within 30 days, that as long as you do that, it should have the same effect. Kagan, there is no doubt that if the motion for reconsideration is filed, for instance, on the 14th day, there would then be a longer period of time. But we must presume that the advisory committee considered that. And as I have thought about the timing, the 14 days creates a shorter window at which then is hooked, the potentially later motion for reconsideration period. If we apply Lambert's rule and extend that out to 30 days or potentially longer, and in the central district, no deadline at all, it truly renders the 14-day period a nullity in that instance. Your honours, I would like to direct your attention particularly to the Carlyle case. That case involved very similar language in former criminal rule 45b. And in that instance, the trial court was faced in a situation where there was a motion for judgment of acquittal, and the trial judge found legal innocence. And the judge granted additional time that petition was filed just one day late. The trial judge found that it was appropriate to grant an extension for just a single day because a grave injustice would occur. And yet faced with legal innocence and excusable neglect, this court looked at the language of former Federal Criminal Rule 45b, which has virtually identical language to appellate rule 26b, which is applicable in this case. Namely, quote, the court may not extend the time for the filing. On that, I hope. What happens if Hurricane Katrina comes along and no one can reach the courthouse? Your Honor, Hurricane Katrina
. So the answer is, Your Honor, the situation in Carlyle was far more grave than Hurricane Katrina. In that instance. The hurricane Katrina comes along and all the courthouses are shot. Nobody can get there. Everybody loses their motion. Your Honor, in this instance, when you have with Rule 26f, the infatic language, without the harsh consequences at issue that you do in Carlyle and others, then if the deadline cannot be abide abide within the 14 days, then the opportunity to pursue the petition for permission for into a locusary appeal is lost. Now, that may seem like a harsh consequence. I don't think you are just to say on Carlyle that it wasn't utterly exceptionalist. So maybe the hurricane Katrina would fall into that category. Well, Your Honor, the language and the plurality opinion is that it was plain and unambiguous, and there was simply no room in the text for even legal innocence to justify a single days delay. But your answer, what I missed just to get into her question, I couldn't hear it. What was it, what, but I think it was the same line. What, what, what happens in all these things where the courthouse burns down, lightning strikes, Hurricane Katrina, you see the point. In your opinion, does everybody in the, you know, there are dozens of motions pending that are in the same way some fall within these, some don't? Anyone with a motion falls into this language, bad luck, you lose. Is that what it is? Even though it isn't a jurisdictional rule, is that, is that your position? It is our position within this context of a mandatory claim processing rule in the emphatic language that is present here, more so than even in the Carlyle and Robinson case. This is there, I may be misremembering this, but isn't there provision that extends the filing period when the courthouse is closed? Your Honor, there is an exception for accessibility of the courthouse that would apply in that situation. Now, that doesn't help you with intervening periods. I gather that would not toll in that sense, but if the due date is a date on which the court is inaccessible or formally closed, that, you get at least that relief. Yes, Your Honor. And the key point here, I believe, is that it is properly within the province of the rule drafters to consider when and in what circumstances the court should have discretion. And here, it both rule 26b, and then to distinguish this as an even stronger example of emphatic language in rule 2
. Before we leave 26b, there is a bit of a complication, right? It says that we can extend the time or permit an act to be done after the time expires. And then after having given that authority to the court, it then takes away the authority to extend the time to file. It doesn't take away both of those things, and they're disjunctive. So what do we do about that? You're Honor, that very issue was addressed in the Robinson case, and that is, with that other issue, can an act to be allowed later. The Robinson case found that to allow an act or a filing later would effectively enlarge or extend the period of time. And so therefore, that would be prohibited. The problem with Carlisle and Robinson is that they were well before our explanation of there being a difference between jurisdiction and non-juristician claim processing rules. And we're a little bit loose back then in terms of our textual approach to things. Justice Gorsuch's question, though, is a fair one because it's the practice of the Supreme Court with respect to filing of amicus briefs that we don't grant extensions, but we take late amicus. And so why can't we look at the exact words of 26b and say, no, you can't extend the time, but a court has, as it always has, equitable discretion to take something that's filed late because assuming that the facts qualify as equitable, and that's open to question, I know in this case, but assuming, why don't we read the provision as its state? A court can permit an act to be done after that time expires. Justice Sotomayor, let me address there were several parts to your question. Let me try to address each in turn. Undoubtedly, and as this court has stated repeatedly in recent decisions that there was a sort of loose use of the term jurisdictional. However, and in fact, that loose use of the word jurisdictional was, in fact, improperly used in the Robinson case, and that has been pointed out. But the court and more recent decisions, particularly the contract decision and the Eberhardt decision, specifically Sites Robinson as still good law, acknowledging, though the term jurisdictional was misused, that in fact Robinson stands for, as Eberhard said, observing clear limits of the rules. So going back to the second part of your question, the Robinson case specifically addressed the issue that, well, if the court has not addressed that second portion an act that could be allowed, if we allowed a late filing, that would, in fact, eviscerate the first prescription and render, in fact, that portion of rule 26B annulity. So what work does that language then do to permit an act to be done after the deadline? Why isn't your interpretation itself render that language annulity? And Justice Gorsuch, I've been giving thought to that. I had hoped you might. Thank you. So have I. And Your Honor, I believe what that may open the door to are other acts that do not effectively enlarge or extend the period of time
. So there could be other categories of actions that the court might consider and allow. Give me an example, though, because 26B is a titled extension, extending time. So I would have thought that it would have had to do something about time. And I'm just struggling to come up with an example of what work that language does under your interpretation. Your Honor, it might, for instance, countenance some other related proceeding or action other than an extension of time on the actual motion for petition for permission to appeal that would be filed. That might be an instance where that would apply. But I. I'm not following you. Your Honor, I think the language in 26B is construed by Robinson in this instance would preclude an enlargement of the time to file. But what another act that might be allowed could be an act that relates to another motion that might be filed in the proceeding or something collateral, but not the actual motion itself. If, in fact, we read it to include the motion itself, the court and, of course, the Court can revisit the thinking in Robinson. The Court would be moving right into the facts of Robinson and writing out the prescription on the extension of time. The problem is that we really would, yes, you're right, we would be revisiting Robinson. But we would be saying that the words of a statute have meaning. And Robinson read out of that permission, the equitable considerations that the very statute permitted. Your Honor, this case is actually a stronger case with more emphatic language considered collectively than Robinson and Carlyle, because we not only have the equivalent of Rule 45B in 26B, we also have a Pellet Rule II where there is, of course, the notion of equity and suspending the rules. And the drafters specifically accepted the application of 262. That's a circle with no out, because two refers to 26B. And if we read 26B the way I suggest, that already builds in the equitable exception. But in terms of the purpose of the rule, we have previously said that 26B gives, 26F gives the Court, the trial court, almost unfettered discretion whether to grant the motion to appeal. And if that's the case, wouldn't the natural reading of this be that the Court should have unfettered discretion to decide if a late filing makes it think that the issue is more important than it might otherwise have thought? The discretion of the Court of Appeals, not the district court, if you permission to appeal
. Just to so to my or her, to answer your question, the Court of Appeals has discretion to accept a timely petition, but does not have the discretion to accept an untimely petition because the rulemaker specifically removed that discretion in the language of 26B and two, and there's one other rule that's applicable. And that is a Pellet Rule 5A2, which further reinforces that the petition must be filed within 14 days. And Rule 26B, it says generally the Court made grant an extension of time, but there's a category of cases in which it can't. And that is for permission to appeal. The time to appeal or the time to seek permission to appeal. Yes, yes, Justice Ginsburg, but that supports our point. Because in that instance, we can clearly see the intent of the rulemakers in providing for a broad range of equitable discretion, and then withdrawing it in the particular instance of 26B. What do you think, and I think it was Justice Ginsburg's concurrence of Carlyle, where she said that the Court had recognized one, quote, sharply honed equitable exception. It doesn't have the word equitable, but it means it. To mandatory claim processing rules, the unique circumstances exception. You want to agree with that? But I agree that Justice Ginsburg filed a concurring opinion and described the unique circumstances doctrine as, indeed, a sharply honed exception that covers cases in which the trial judge misled a party who could have and probably would have taken timely action had the trial judge conveyed correct rather than incorrect information. The example was the trial judge you have until X State to file, and the really good file done X State, but in fact the judge was wrong, and it should have been in early a date. That's right. When there is a specific assurance by the trial judge and a mistaken one that the party reasonably relies on to its detriment, factually that simply does not apply here, and this Court need not reach the applicability of the circumstances doctrine. I mean, if you agree, I take it you agree that there is one sharply honed exception, whatever that might be, called unique circumstances. You know, I can make up weird examples probably you can, too. But is there such an exception? I take it to answer is yes, or no. Is it yes or no? Your Honor, there has, yes, there has been an exception. Generally, in several cases that has been described, the unique circumstances doctrine. However, we have not been presented squarely with the question of whether when you have mandatory claim processing rules with infatic language, whether that might preclude even the unique circumstances. Well, I would not wonder, because I can see would you agree or not agree? Holding one, this is not jurisdiction
. Holding two, it is very limited. Holding three, there is a unique circumstances exception. Holding four, this doesn't fall within it. Yes, Your Honor. If I understand holding two, we are addressing not the facts here, but claim processing rules that would be other than this sort of impact. I am addressing in general with claim processing rules, there are equitable exceptions. Yes, Your Honor. At least for unique circumstances. And then this is not one. That's what you are not. You could argue that, or you could say never. And I'm not sure what you think is correct. Your Honor, I am arguing in this case that the Court need not reach the application of the unique circumstances doctrine, and factually, if we attempt to apply it, it does not apply here. Well, are we slicing the baloney pretty thinly? I mean, what's unique, all right? A judge misinforming a party about the time remaining to appeal sounds pretty terrible. But I can imagine a lot more terrible things than that. Hurricanes, lightning, all of Justice Breyer's wonderful parade of horribles, all right? Why are those all unique circumstances, too? Don't you really have to argue that Thompson's wrong and that, in fact, the rules here preclude any equitable tolling and unique circumstances as a species of equitable tolling? Doesn't that have to be your argument? Your Honor, doc, trinally, that is our argument, that when you have language as we do it, at issue here, in Fatic and Mandatory, it precludes the reading of all equitable exceptions. Mr. Houston, you can't please everyone here. Try my best, Your Honor. I think you're going to have to juice between nothing, no time, never, and, uh, sure, you can reserve some, the possibility of an equitable exception in circumstances that are different from the ones here. So which is it? Your Honor, again, we don't believe the Court needs to reach the application of the unique circumstances, doc, trin, and if that's the only one, this one sharply hunt exception recognized to apply within the context of claim processing rules, and it factually does not apply, then the decision below must be reversed
. But to answer your question, I do believe that the language here is sufficiently infatic and clear that it does not admit to anyone's exception. The Court is clear that you face this binary choice. The problem with unique circumstances, the potential problem, is that every lawyer who is in trouble thinks that the circumstances of that lawyer's case are unique in every judge who wants to get to a particular result can characterize the facts of the case before the judge is unique, but maybe there's such a thing as the catastrophic exception, or the apocalyptic exception. So if there's a Martian invasion, there would be an exception for that, but something short of that, you know, like the attorney is sick, wouldn't work. That's right, Your Honor. It's rather hard to what is the answer to what Justice Alito says. We have the answer as the Chief Justice points out where the courthouse is closed, but one can think of epidemics or fires in the North. And, you know, that's exactly right. And what do we write about that? What, in your opinion, do we write? Forest fire keeps the lawyer from the courthouse, which is open. What do we write? All right. So in that instance, within the context of this case, rule 23F, the Court, in fact, would not be allowed to admit an equitable exception in that circumstance that appears harsh, but it is not, and the drafters, I submit, had this in mind, a rule 23F petition for permission to seek interlocatory appeal. If that cannot proceed, they have their full right of appeal at the end of the case. No catastrophic or harsh consequence ensues. And so- It would be too late in the real world of how the litigation transpires, though. You would admit too late as a practical matter. Well, in the Justice Kavanaugh, in the context of class action cases, typically, and of course the rules allow this, you can continue to challenge the class certification or desertification order. So practically, there is no catastrophic lost ability, and having that fully retained appellate right puts the petition in a far better circumstance than the party in Carlyle, who was faced with a plain error review on appeal, or a habeas route, one of the most difficult pathways in the law. Would it be fair to say that your position is not necessarily never, but not more than hardly ever? You feed the question, you are more than hardly, I miss the last. Yes, in other words, we can say never, and that's one answer. Another is equitable discretion without any tight boundaries. And another is what my opinion, Kavanaugh referred to as sharply honed, not utterly exceptionist, so it's not never, but hardly ever
. That could be the pathway, obviously the court does take, and one sharply honed exception as your honor described in your concurrence was the hardly ever one exception that the court was describing here, if actually does not apply. Picking up on Justice Kagan's question at the beginning, is the exception for a motion for reconsideration that's filed within 14 days, is that equitable, or what is that exception? No, it is not an equitable exception, your honor. What's not written in the rules? It is based according to USB-D, it is not written in the rules, but it is in the standard. If it's not written in the rules, it doesn't have to be characterized as equitable. Still not understanding where that comes from, and I'm also not understanding what sense that makes really, because if you filed a timely motion for reconsideration, you have filed a timely motion for reconsideration. It shouldn't be circumscribed based on some other rule that has nothing to do with motions for reconsideration. What's wrong with that? Thank you. What's wrong with that, your honor, is that it departs, and the court can revisit the teaching of Healy that to keep the appellate right alive, the motion for reconsideration has to be filed within the applicable time, in this case, 14 days. And that has been the rule that has applied here, and motions for reconsideration have not been described as equitable exceptions. And again, the point I made earlier that they have been applied to delay in the context of the application of jurisdictional rules shows that they are not regarded by this court historically as equitable in nature. And Mr. Chief Justice, if I could reserve the remaining time for a vote. Thank you, counsel. Mr. Herstoff? Mr. Chief Justice, in May it please the Court. For three main reasons, the Court of Appeals properly decided to consider this appeal on the merits. First, the appeal is timely within the plain language of the Federal Rules. Second, the Court of Appeals properly determined that Rule 23F is subject to equitable tolling. And third, the appeal is properly considered based upon this Court's decisions and Harris truck lines in Thompson. And I'd like to start with Timelineus under the Federal Rules
. Rule 59E provides that a motion to alter or amend the judgment may be filed within 28 days. The Court of Appeals deals with final judgments at the end of the case, the final judgment on the merits. It doesn't deal with interlocutory rulings. We can't turn every ruling in the case into a judgment covered by Rule 59. 59 is at the end of the case, the final judgment. Well, I submit that the, the language of Rule 59E refers to judgments which are defined as orders from which an appeal lies under the rule. Yes, but those words, in order from which an appeal lies, means an appeal as a right. And the one thing I think we can all agree on here is permission to appeal the Grand Award denial of class action is not an appeal of right. I agree with that. It is an permissive appeal. But once the Court of Appeals grants permission to appeal, the appeal does on the lie from that certification on the order. But even if the Court finds that the underprivileged. You read Rule 54 to apply to appeals not just as a right. And that's right, Justice Cavanaugh. And I do, and the, in the yellow brief, the, I'm not a petitioner said that an appeal does not lie because it is not an appeal as a right. But in a black slaughter dictionary, defines lie as to exist or to reside. And once the one. Well, within the context of 59a, 54a, it is an appeal of right. If you segment out one party and then judgment is final at to that party or a particular claim, the judgment can be made final as to that claim, even though other claims are pending. I thought that's what 54 deals with. To rule a Rule 54b does permit a district Court to enter final judgment with respect to certain claims
. And for that, that, that is a final judgment as a right. Once the district Court on this certifies that for appeal. But even if this were not a Rule 59 emotion, the, the appeal still was timely for several reasons. Can I just ask on the Rule 59 question? Again, suppose a local rule gave you 45 days for a motion for reconsideration, but Rule 59 has the 28 day. What's your position on that? If, if Rule 59 were determined to apply here, then that would not work because Rule 59 has a non-extendable 28 day period. If it is not a Rule 59 motion, though, I think in your example, there would be a local rule that gives, I think it's at 45 days, that would be a timely reconsideration. Why would that be, why would that even be permitted? Why would it be permitted to? Why would that, why would the filing of the motion for reconsideration, which is nowhere mentioned in the Rules of Civil Procedure, toll the time for filing an appeal? Because the, the Court has long held that a timely reconsideration motion will suspend the time to appeal. And indeed, Deeder, Healy and Ibarra line of cases, those dealt with the criminal rules where there was no specific provision for reconsideration motions. Well, it might be that, that filing it within the period allowed under the particular rule at issue here would toll the time to appeal, but I don't see where anything. I'm not sure the basis for the idea that filing a motion, forget about Rule 23 for the moment, filing a motion for reconsideration, so called tolls the time to appeal as I said, there's no mention of that in the Rules of Civil Procedure. And the Rules of a Peloprocedure set out quite clearly the particular motions that toll the time for filing a notice of appeal. And there is no mention there of a motion for reconsideration. There's a motion, they mentioned a motion to alter or amend the judgment. Well, I think the, this Court's decision in Ibarra, I'm going to explain this well, and the Court explained that the reason that reconsideration motions toll the time to appeal is to give the district court an opportunity to correct their own alleged errors and to prevent unnecessary burdens from being placed on the court of appeals. And I think that's shown here where you have a record on the class certification, the district's court is familiar with the record. The district's court here specifically said only 10 days after the desertification order that it was going to entertain the reconsideration briefing. And during that time, the Court agreed to suspend summary judgment proceedings, other pre-trial proceedings, and trial. So this was a considerable pause in the proceedings so that the district's court would have a chance to reconsider before the case went up on appeal. And to that man, I think that makes a lot of sense. And I think the courts should not be discouraged from reconsidering before it goes up to the Court of Appeals. But is there anything inconsistent with the 14-day limit of seeking permission to appeal and making a motion to reconsider? I mean, you could do both. It's true they either could do, you could do both, but then you'd have the district's court and the Court of Appeals considering the exact same order at the same time. And this Court has long held that the district's courts and the courts of appeals should not be. No, the Court of Appeals says, well, wait, we'll wait on the district court's decision on the motion for reconsideration. And the Court of Appeals would have the discretion to stay their proceedings, just like district's courts have discretion to stay their proceedings, but still, you'd have the same on the order that's up at both the Court of Appeals and at the district's court. And I think it makes more sense to say that when the reconsideration motion is pending at the district's court, there should be no need to file a petition for permission to appeal. Well, what did you understand the district court to be saying when it set the motion for reconsideration? What was the, what's the, what did it tell you about timing deadlines? Well, the district court said. And what did you infer from what it said? So I infer from that that the district court was indeed going to reconsider this desertification order, and indeed they suspended, the district court suspended further proceeding. So the case was effectively stayed while this was. The district court, though, didn't say anything about a time for appeal. Is that correct? That is true. They do not specifically say that. And why doesn't that matter? Thank you. I'm not, it doesn't matter in the same, in the same way that in Thompson, there is no mention of anything about an appeal. The district court said that the post trial motion was filed in ample time, and the court held that that representation meant that the appeal was required to be considered on the merits, even though post trial motion was not filed in ample time. I don't think that the fact that the district court did not specifically mention appeal really makes a difference here, especially in the Department of Justice. Well, but in Thompson, I'm sorry, please. What did you understand us to be saying when we describe these types of provisions as mandatory claims processing rules? I think in general, it is strict. It is, however, subject to forfeiture and waiver, and the court has held open several times whether it is subject to equitable exceptions. And- But in the case- I'm sorry. In the cases that said mandatory, contract, abehart, it said strictly applied, but the party who would benefit from the rule can waive the rule or forfeit it. But both cases said if it is properly raised, as it was here, and it applies
. It's true they either could do, you could do both, but then you'd have the district's court and the Court of Appeals considering the exact same order at the same time. And this Court has long held that the district's courts and the courts of appeals should not be. No, the Court of Appeals says, well, wait, we'll wait on the district court's decision on the motion for reconsideration. And the Court of Appeals would have the discretion to stay their proceedings, just like district's courts have discretion to stay their proceedings, but still, you'd have the same on the order that's up at both the Court of Appeals and at the district's court. And I think it makes more sense to say that when the reconsideration motion is pending at the district's court, there should be no need to file a petition for permission to appeal. Well, what did you understand the district court to be saying when it set the motion for reconsideration? What was the, what's the, what did it tell you about timing deadlines? Well, the district court said. And what did you infer from what it said? So I infer from that that the district court was indeed going to reconsider this desertification order, and indeed they suspended, the district court suspended further proceeding. So the case was effectively stayed while this was. The district court, though, didn't say anything about a time for appeal. Is that correct? That is true. They do not specifically say that. And why doesn't that matter? Thank you. I'm not, it doesn't matter in the same, in the same way that in Thompson, there is no mention of anything about an appeal. The district court said that the post trial motion was filed in ample time, and the court held that that representation meant that the appeal was required to be considered on the merits, even though post trial motion was not filed in ample time. I don't think that the fact that the district court did not specifically mention appeal really makes a difference here, especially in the Department of Justice. Well, but in Thompson, I'm sorry, please. What did you understand us to be saying when we describe these types of provisions as mandatory claims processing rules? I think in general, it is strict. It is, however, subject to forfeiture and waiver, and the court has held open several times whether it is subject to equitable exceptions. And- But in the case- I'm sorry. In the cases that said mandatory, contract, abehart, it said strictly applied, but the party who would benefit from the rule can waive the rule or forfeit it. But both cases said if it is properly raised, as it was here, and it applies. That's true, but contract also left open the possibility that these rules could be softened on equitable grounds, I think, was the language that was used in contract. And it makes sense, and this is- I'm sorry. I'm just trying to figure out, I mean, when we did sort of tighten up the loose use of the term jurisdiction, we said that these are nonetheless mandatory. And for some of us, at least, that made sense. But if the alternative to a stricter application of the jurisdictional term was that equitable claims are going to be available across the board, I mean, I would for one would want to reconsider our loosening of the use of jurisdiction because there ought to be some area, I thought, where the claims, where the claim procedures were mandatory, in the sense that Justice Ginsburg has just talked about. So I don't think the claim processing rules are necessarily subject to any equitable exception. It's not necessarily subject to good cause exceptions or excusable neglects, like most softer deadlines would be. Equitable toll in this different, though. Equitable toll has been a part of American jurisprudence since they began, and even in England prior to that. Well, yes, at a time where jurisdiction meant what we used to think it meant. In other words, yes, there was equitable tolling, but not across the board. And the areas in which it did not apply were much more expansive than they are now today. I think back then, when equitable toll did not apply, those were in circumstances from my understanding where the time limit is what the Court today would refer to as jurisdictional. Now, here we have a non-Jurisdictional provision. Is the up-shut of your argument, though, counsel, that as long as it's a non-Jurisdictional rule, equitable toll must always apply? Congress couldn't authorize a truly mandatory statutory deadline? No, no, that is not our position. We do not go that far. Okay. So if there is room for what the Chief Justice suggests remains, why isn't this the paradigm case? I mean, how clear could Congress through the rulemaking committee have been? In multiple places, in multiple ways, making clear through language-like must and expressly excluding times for appeal? I mean, gosh, if this isn't good enough, what is? Well, I think that, as your Honor referred to, and would may, with my co-concilled, rule 26b specifically draws a distinction between extending the time on the one hand, and on the other hand, permitting a late filing, and here, if anything, I think. Well, we have Robinson that takes care of that problem, he says. So we have precedent there. So again, how much clear could the rules have been, but maybe that one example, the precedent, plugs that whole? Well, I think the rules committee actually was a lot clearer in another example, where I think the rule would not be subject to equitable exceptions, and that's an appellate rule for a for specifically the 2016 amendment to for a for
. That's true, but contract also left open the possibility that these rules could be softened on equitable grounds, I think, was the language that was used in contract. And it makes sense, and this is- I'm sorry. I'm just trying to figure out, I mean, when we did sort of tighten up the loose use of the term jurisdiction, we said that these are nonetheless mandatory. And for some of us, at least, that made sense. But if the alternative to a stricter application of the jurisdictional term was that equitable claims are going to be available across the board, I mean, I would for one would want to reconsider our loosening of the use of jurisdiction because there ought to be some area, I thought, where the claims, where the claim procedures were mandatory, in the sense that Justice Ginsburg has just talked about. So I don't think the claim processing rules are necessarily subject to any equitable exception. It's not necessarily subject to good cause exceptions or excusable neglects, like most softer deadlines would be. Equitable toll in this different, though. Equitable toll has been a part of American jurisprudence since they began, and even in England prior to that. Well, yes, at a time where jurisdiction meant what we used to think it meant. In other words, yes, there was equitable tolling, but not across the board. And the areas in which it did not apply were much more expansive than they are now today. I think back then, when equitable toll did not apply, those were in circumstances from my understanding where the time limit is what the Court today would refer to as jurisdictional. Now, here we have a non-Jurisdictional provision. Is the up-shut of your argument, though, counsel, that as long as it's a non-Jurisdictional rule, equitable toll must always apply? Congress couldn't authorize a truly mandatory statutory deadline? No, no, that is not our position. We do not go that far. Okay. So if there is room for what the Chief Justice suggests remains, why isn't this the paradigm case? I mean, how clear could Congress through the rulemaking committee have been? In multiple places, in multiple ways, making clear through language-like must and expressly excluding times for appeal? I mean, gosh, if this isn't good enough, what is? Well, I think that, as your Honor referred to, and would may, with my co-concilled, rule 26b specifically draws a distinction between extending the time on the one hand, and on the other hand, permitting a late filing, and here, if anything, I think. Well, we have Robinson that takes care of that problem, he says. So we have precedent there. So again, how much clear could the rules have been, but maybe that one example, the precedent, plugs that whole? Well, I think the rules committee actually was a lot clearer in another example, where I think the rule would not be subject to equitable exceptions, and that's an appellate rule for a for specifically the 2016 amendment to for a for. There, the Court changed the rule to make clear that only a timely rule 50 or rule 59 motion, and it's not an untimely rule 50 or rule 59 motion, would suspend the time to appeal regardless of what the district's Court. Well, what do you think, as a standard, we should use, that is to say, if it's a jurisdictional rule, I guess that's a pretty unwaivable and no-nothing. If it's a non-jurisdictional rule, then equitable grounds, but certainly Congress can stop that or the rules committee, and the way it stopped it was it said, normally you can extend the time for good cause. Now, that's quite broad, but there's an exception for our case, which says you can't extend it for good cause. So here we have for good cause, here we have zero, and I thought perhaps that Justice Ginsburg proposed a narrow exception that would, in fact, make it not for good cause, but not zero, and that's the unique circumstances sharply honed, which I guess covers Justice Alito's Mars attack, and various others that are unusual, but cry out, okay? Now, what about that? I'm not advocating it? I want to know your opinion. I agree completely, Justice Breyer, with what you're saying. It is true that a good cause extension is not permitted for petitions for permission to appeal. Rule 26 does not say anything about equitable tolling. Equitable tolling requires much more than simple good cause. In fact, we are at sharply honed, special, unique circumstances. How do you win this case? Because what seemed to happen here is it was, I don't know if it was you, but whatever lawyer went in for your side, within the 14 days did not even ask the judge to extend the time, at least not in writing. And so it's pretty hard to say you are from an equitable point of view in a unique circumstance. Well, I do think that the Thomson rule applies here, because ten days after the desertification order, the District Court held a status conference during which we asked for permission to file a motion for reconsideration in writing and to add that. So on what ground would we overrule the circuit's rejection of that argument? You raised it below. It explicitly didn't rule on that basis. It held that you had filed the motion after the 14 days. What ground do we have to disagree with the circuit court on that? With the same that you are talking about with the night circuit, Sam, saying that in less than exception applies, the petition would be barred. Exactly. So when the night circuit said that, it included within that language a reconsideration motion that's filed within the 14 days. So what the Court of Appeals said was that the desertification order was made on February 20th. There was no rule 23th petition filed within that 14-day period
. There, the Court changed the rule to make clear that only a timely rule 50 or rule 59 motion, and it's not an untimely rule 50 or rule 59 motion, would suspend the time to appeal regardless of what the district's Court. Well, what do you think, as a standard, we should use, that is to say, if it's a jurisdictional rule, I guess that's a pretty unwaivable and no-nothing. If it's a non-jurisdictional rule, then equitable grounds, but certainly Congress can stop that or the rules committee, and the way it stopped it was it said, normally you can extend the time for good cause. Now, that's quite broad, but there's an exception for our case, which says you can't extend it for good cause. So here we have for good cause, here we have zero, and I thought perhaps that Justice Ginsburg proposed a narrow exception that would, in fact, make it not for good cause, but not zero, and that's the unique circumstances sharply honed, which I guess covers Justice Alito's Mars attack, and various others that are unusual, but cry out, okay? Now, what about that? I'm not advocating it? I want to know your opinion. I agree completely, Justice Breyer, with what you're saying. It is true that a good cause extension is not permitted for petitions for permission to appeal. Rule 26 does not say anything about equitable tolling. Equitable tolling requires much more than simple good cause. In fact, we are at sharply honed, special, unique circumstances. How do you win this case? Because what seemed to happen here is it was, I don't know if it was you, but whatever lawyer went in for your side, within the 14 days did not even ask the judge to extend the time, at least not in writing. And so it's pretty hard to say you are from an equitable point of view in a unique circumstance. Well, I do think that the Thomson rule applies here, because ten days after the desertification order, the District Court held a status conference during which we asked for permission to file a motion for reconsideration in writing and to add that. So on what ground would we overrule the circuit's rejection of that argument? You raised it below. It explicitly didn't rule on that basis. It held that you had filed the motion after the 14 days. What ground do we have to disagree with the circuit court on that? With the same that you are talking about with the night circuit, Sam, saying that in less than exception applies, the petition would be barred. Exactly. So when the night circuit said that, it included within that language a reconsideration motion that's filed within the 14 days. So what the Court of Appeals said was that the desertification order was made on February 20th. There was no rule 23th petition filed within that 14-day period. And therefore, unless an exception applies, it would be untimely. So the Court was saying, even if a motion for reconsideration was filed within the 14-day period, it would be untimely. So they considered that an exception as well. So. We've talked about unique circumstances. Unique is defined as the only one. There have been many hurricanes, there have been many fires, there hasn't been a Martian invasion yet. But what do you think it is? Unique is not unusual, right? So if you're going to create an exception for unique circumstance, it can't mean the situation where judges misadvised litigants about how much time they have. That doesn't happen all the time, but we've certainly seen more than one case of that. So if you're going to say unique circumstances, what exactly does it mean if it doesn't mean with the dictionary, says? Well, think it out, it is a unique circumstance and on where the district's court misadvises the party on. I mean, I've seen dozens of cases where that has happened. In some, if it's an equitable tolling situation, it's typical that equitable tolling is appropriate, although not always. So that's not unique. Now, if you're going to say it's an unusual circumstance, then I think you've opened the barn door. If you're going to say it's a circumstance where the judge is the main villain in the missing of the deadline, well, then that's something else, and maybe that's better or worse than unusual. But it just seems to me that if you're using unique, perhaps the court has used unique, it's kind of a legal word that shouldn't have any legal in it. Well, I think that applying the doctrine is consistent with the Federal rules, for instance, on rule one, and the rules are derived from the old equity rules, so it makes sense that there is some flexibility there when a district's court misinforms the litigants about the time that they have to file, especially in the context of the non-geuristicional rule, like we have. Well, then I think you do have to say the exception is when the district's court misadvises the litigants rather than saying unique, but not really meaning unique, because then you get in a situation that Justice Alita was talking about. Most lawyers consider their case unique when they run into something like this, and the judges gives them a lot more flexibility than perhaps the rules committee wanted as well. I agree. I think this term unique circumstances doctrine does refer specifically to the district's court misinforming it
. And therefore, unless an exception applies, it would be untimely. So the Court was saying, even if a motion for reconsideration was filed within the 14-day period, it would be untimely. So they considered that an exception as well. So. We've talked about unique circumstances. Unique is defined as the only one. There have been many hurricanes, there have been many fires, there hasn't been a Martian invasion yet. But what do you think it is? Unique is not unusual, right? So if you're going to create an exception for unique circumstance, it can't mean the situation where judges misadvised litigants about how much time they have. That doesn't happen all the time, but we've certainly seen more than one case of that. So if you're going to say unique circumstances, what exactly does it mean if it doesn't mean with the dictionary, says? Well, think it out, it is a unique circumstance and on where the district's court misadvises the party on. I mean, I've seen dozens of cases where that has happened. In some, if it's an equitable tolling situation, it's typical that equitable tolling is appropriate, although not always. So that's not unique. Now, if you're going to say it's an unusual circumstance, then I think you've opened the barn door. If you're going to say it's a circumstance where the judge is the main villain in the missing of the deadline, well, then that's something else, and maybe that's better or worse than unusual. But it just seems to me that if you're using unique, perhaps the court has used unique, it's kind of a legal word that shouldn't have any legal in it. Well, I think that applying the doctrine is consistent with the Federal rules, for instance, on rule one, and the rules are derived from the old equity rules, so it makes sense that there is some flexibility there when a district's court misinforms the litigants about the time that they have to file, especially in the context of the non-geuristicional rule, like we have. Well, then I think you do have to say the exception is when the district's court misadvises the litigants rather than saying unique, but not really meaning unique, because then you get in a situation that Justice Alita was talking about. Most lawyers consider their case unique when they run into something like this, and the judges gives them a lot more flexibility than perhaps the rules committee wanted as well. I agree. I think this term unique circumstances doctrine does refer specifically to the district's court misinforming it. Yeah, Mr. Herstov, I don't think this is your fault, right? This is the court's fault in putting a bad label on something that it actually meant when it meant something else, but my understanding of what the court has meant when it's done this is not the attack from Morris or Hurricane Katrina. My understanding is that it was meant to label a category of cases where the court had misled the party into doing something, into missing some kind of deadline. Is that your understanding? Yes, I agree, Justice Kagan. So, but I don't see where that is here. Where that is, well, the district's court paused the proceedings and specifically said that a reconsideration motion could be filed by March 12 of 2015. Yes, so he said a reconsideration motion could be filed. He was right about that. The reconsideration motion could have been filed. What he didn't say anything about was what that meant for your appeal right. That's true, but I think there is a basic understanding that when a reconsideration motion is pending, a party does not need to seek a pellet review on top of that. I mean, that's really what happened in Thompson. The district's court did not say anything about an appeal. It simply said that the motion was filed in ample time. And the court held that that was sufficiently misleading, such that the appeal was required to be considered on the merits. Even though- Is this court cast any doubt on Thompson? In the context of jurisdictional rules, yes, the court overruled Thompson for jurisdictional deadlines in the court's decision in balls, but left to intact for non- jurisdictional rules. And I think we have a good reason because non- jurisdictional rules that presumably should be subject, at least presumptively subject to equitable considerations, such as toll lines, such as what the court has referred to as the unique circumstances doctrine, which I think is a subspecies of tolling or a stop-all. Well, the court has said in the counter-line of cases, mandatory means inflexible. And if they, I mean, generally, is inflexible. I mean, we're not advocating for a good cause standard here. There has to be something more than that
. Yeah, Mr. Herstov, I don't think this is your fault, right? This is the court's fault in putting a bad label on something that it actually meant when it meant something else, but my understanding of what the court has meant when it's done this is not the attack from Morris or Hurricane Katrina. My understanding is that it was meant to label a category of cases where the court had misled the party into doing something, into missing some kind of deadline. Is that your understanding? Yes, I agree, Justice Kagan. So, but I don't see where that is here. Where that is, well, the district's court paused the proceedings and specifically said that a reconsideration motion could be filed by March 12 of 2015. Yes, so he said a reconsideration motion could be filed. He was right about that. The reconsideration motion could have been filed. What he didn't say anything about was what that meant for your appeal right. That's true, but I think there is a basic understanding that when a reconsideration motion is pending, a party does not need to seek a pellet review on top of that. I mean, that's really what happened in Thompson. The district's court did not say anything about an appeal. It simply said that the motion was filed in ample time. And the court held that that was sufficiently misleading, such that the appeal was required to be considered on the merits. Even though- Is this court cast any doubt on Thompson? In the context of jurisdictional rules, yes, the court overruled Thompson for jurisdictional deadlines in the court's decision in balls, but left to intact for non- jurisdictional rules. And I think we have a good reason because non- jurisdictional rules that presumably should be subject, at least presumptively subject to equitable considerations, such as toll lines, such as what the court has referred to as the unique circumstances doctrine, which I think is a subspecies of tolling or a stop-all. Well, the court has said in the counter-line of cases, mandatory means inflexible. And if they, I mean, generally, is inflexible. I mean, we're not advocating for a good cause standard here. There has to be something more than that. I think that a district's court misleading party is more than simple, excusable, neglects or good cause. Equitable tolling is, as well. I mean, in this court's decision in Irwin, the court said that statutes of limitations are presumptively entitled to equitable tolling and then went on to hold the, in the facts of that case, equitable tolling was not established because the party established at most a garden variety claim of excusable neglect. So tolling is on a different level. I think you have two possible lines of response to Justice Ginsburg's question. I'm curious which you choose. So if Thompson doesn't apply to jurisdictional statutes, one could say it does apply to mandatory but inflexible claims processing rules because it's not a species of equitable tolling at all. It is, in fact, a rule of judicial administration that when it's our fault, shame on us. Or one could say, let's be honest, it's a form of equitable tolling. And therefore, it shouldn't apply, just as it doesn't to jurisdictional rules, it shouldn't apply to mandatory claims processing rules, but should remain a viable option otherwise. And that would harmonize bowls with this line of cases. Which of those choices should we make and why? And I do think that these rules, presumably, should be subject to an equitable tolling and not necessarily just further the district's court misleading the parties. However, either way, the judgment should be affirmed because here, in fact, the court did mislead Mr. Lambert into thinking that- How did the court didn't say one word about permission to appear? The court didn't, but I think this is just like Thompson where the court said you had this amount of time to seek reconsideration. Don't the local rules of many courts then miss also mislead counsel because the local rules of many courts would have motions for reconsideration that could be filed within periods longer than 14 days? What then, I think that- Under your position, all the district court did here was identify a date that was longer than 14 days. The local rule for motion for reconsideration, the local rules of many courts, similarly, identify a date that's longer than 14 days for motions for reconsideration. Would that- Would you distinguish what happened here from a local rule that's longer than 14 days? I think I hear the district court did set this specific deadline. I think it does- How would you distinguish a local rule that has a date longer than 14 days, a period longer than 14 days, in which you can file a motion for reconsideration? I do think that- That really, on Rule 59 comes into play here, which says 28 days, but I think it is very- very unreasonable to interpret Rule 59 to apply here, but even if the court concludes that it does not, it's at least a reasonable interpretation. In the Rule 59, are you meant just to reiterate, depends on your Rule 54 interpretation, correct? That's right. Yes. So I do think that at the very least, if a local rule gives up to a 28-day period, seek reconsideration? You could have the same confusion of a local rule that gives longer than 28 days, for example, the local rule here, for motion for reconsideration, but then you're not within the 28 days of Rule 59, right? I think that's true
. I think that a district's court misleading party is more than simple, excusable, neglects or good cause. Equitable tolling is, as well. I mean, in this court's decision in Irwin, the court said that statutes of limitations are presumptively entitled to equitable tolling and then went on to hold the, in the facts of that case, equitable tolling was not established because the party established at most a garden variety claim of excusable neglect. So tolling is on a different level. I think you have two possible lines of response to Justice Ginsburg's question. I'm curious which you choose. So if Thompson doesn't apply to jurisdictional statutes, one could say it does apply to mandatory but inflexible claims processing rules because it's not a species of equitable tolling at all. It is, in fact, a rule of judicial administration that when it's our fault, shame on us. Or one could say, let's be honest, it's a form of equitable tolling. And therefore, it shouldn't apply, just as it doesn't to jurisdictional rules, it shouldn't apply to mandatory claims processing rules, but should remain a viable option otherwise. And that would harmonize bowls with this line of cases. Which of those choices should we make and why? And I do think that these rules, presumably, should be subject to an equitable tolling and not necessarily just further the district's court misleading the parties. However, either way, the judgment should be affirmed because here, in fact, the court did mislead Mr. Lambert into thinking that- How did the court didn't say one word about permission to appear? The court didn't, but I think this is just like Thompson where the court said you had this amount of time to seek reconsideration. Don't the local rules of many courts then miss also mislead counsel because the local rules of many courts would have motions for reconsideration that could be filed within periods longer than 14 days? What then, I think that- Under your position, all the district court did here was identify a date that was longer than 14 days. The local rule for motion for reconsideration, the local rules of many courts, similarly, identify a date that's longer than 14 days for motions for reconsideration. Would that- Would you distinguish what happened here from a local rule that's longer than 14 days? I think I hear the district court did set this specific deadline. I think it does- How would you distinguish a local rule that has a date longer than 14 days, a period longer than 14 days, in which you can file a motion for reconsideration? I do think that- That really, on Rule 59 comes into play here, which says 28 days, but I think it is very- very unreasonable to interpret Rule 59 to apply here, but even if the court concludes that it does not, it's at least a reasonable interpretation. In the Rule 59, are you meant just to reiterate, depends on your Rule 54 interpretation, correct? That's right. Yes. So I do think that at the very least, if a local rule gives up to a 28-day period, seek reconsideration? You could have the same confusion of a local rule that gives longer than 28 days, for example, the local rule here, for motion for reconsideration, but then you're not within the 28 days of Rule 59, right? I think that's true. The Court has not really had occasion to address the precise contours of when our motion for reconsideration is going to suspend the time to appeal. The Court's cases that have decided that have been in the context where the reconsideration motion was filed within the time to appeal, so it hasn't had occasion to consider it when it's been filed outside, say, this 14-day, on the time period. So then the clarification is important here, to consider that. What do you do with a local rule that has no time limit as the one here in a motion for reconsideration motions is filed a year later, or something like that? I think under those circumstances, it becomes a question of reasonableness. Now, if the litigation goes on and a year later, you're asking the Court to reconsider its decision based upon the exact same evidence that was before the Court a year earlier. I think that as an initial matter, the Rule 23F petition is very unlikely to be granted, because the Court of Appeals is going to see that as causing an unreasonable delay. And as was discussed earlier in this argument, the Court's of Appeals has have absolute discretion whether to consider this appeal or not. You know, sometimes in the unique circumstances situation if you're focusing on judicial conduct, what we find we look into it, it's a lot more ambiguous than you may think. And I do think we have to be careful about what we're requiring of the District Court judges. If somebody stands up in the situation like this and says, Your Honor, I'd like to file a motion to reconsider next week, is that okay? Does he say sure, fine with me? I don't think he should have to stop and say, well, let me research it and see if the time is expired by then. And then if he says, well, if you're going to file it next week, file it on Friday. And it turns out Thursday's the deadline. I mean, the judges misled you, the lawyer would say, because he said, I could file it on Friday. It turns out the Rule says I couldn't. So I'm not as comfortable with an exception for cases where the Court misleads the parties, because I'm not sure that's as clear a case as you might think of where the blame is justifiably placed on the judge. No, I'm not even sure I'm calling it on the blame. I think it's just the party's reasonable expectations when a Court, when a District Court has said that they're willing to reconsider. There's nothing misleading about that, I guess is the point here, because the local rule had no time correct for a motion for reconsideration. The District Court set a time for motion for reconsideration. There's nothing misleading at all about that. Well, then, well, what's the? What's misleading, I guess, is in context when you roll in Rule 23F, which the District Court said nothing about, correct? The District Court didn't say anything
. The Court has not really had occasion to address the precise contours of when our motion for reconsideration is going to suspend the time to appeal. The Court's cases that have decided that have been in the context where the reconsideration motion was filed within the time to appeal, so it hasn't had occasion to consider it when it's been filed outside, say, this 14-day, on the time period. So then the clarification is important here, to consider that. What do you do with a local rule that has no time limit as the one here in a motion for reconsideration motions is filed a year later, or something like that? I think under those circumstances, it becomes a question of reasonableness. Now, if the litigation goes on and a year later, you're asking the Court to reconsider its decision based upon the exact same evidence that was before the Court a year earlier. I think that as an initial matter, the Rule 23F petition is very unlikely to be granted, because the Court of Appeals is going to see that as causing an unreasonable delay. And as was discussed earlier in this argument, the Court's of Appeals has have absolute discretion whether to consider this appeal or not. You know, sometimes in the unique circumstances situation if you're focusing on judicial conduct, what we find we look into it, it's a lot more ambiguous than you may think. And I do think we have to be careful about what we're requiring of the District Court judges. If somebody stands up in the situation like this and says, Your Honor, I'd like to file a motion to reconsider next week, is that okay? Does he say sure, fine with me? I don't think he should have to stop and say, well, let me research it and see if the time is expired by then. And then if he says, well, if you're going to file it next week, file it on Friday. And it turns out Thursday's the deadline. I mean, the judges misled you, the lawyer would say, because he said, I could file it on Friday. It turns out the Rule says I couldn't. So I'm not as comfortable with an exception for cases where the Court misleads the parties, because I'm not sure that's as clear a case as you might think of where the blame is justifiably placed on the judge. No, I'm not even sure I'm calling it on the blame. I think it's just the party's reasonable expectations when a Court, when a District Court has said that they're willing to reconsider. There's nothing misleading about that, I guess is the point here, because the local rule had no time correct for a motion for reconsideration. The District Court set a time for motion for reconsideration. There's nothing misleading at all about that. Well, then, well, what's the? What's misleading, I guess, is in context when you roll in Rule 23F, which the District Court said nothing about, correct? The District Court didn't say anything. Now, I just don't think it's fair to say that District Court misled here. I don't even think it falls into that box necessarily. The ‑‑ the ‑‑ the ‑‑ the motion for leave to file an appeal, you didn't tell the judge you were intending to do that, did you? The Rule 23F was not brought up at the status conference. So, how was the judge supposed to play lawyer? He's supposed to tell you you ask him, let me file a motion for reconsideration. He's supposed to protect you and be your lawyer until you know if you file it next week, you're going to lose your time to appeal. I don't know of any case we've ever held where a judge has to tell you something when you don't ask the judge about that. And it's really not our position that we're placing any kind of blame on the district judge. It is our position, though, that when a District Court says that it's going to reconsider an order, that essentially renders the order non-final for purposes of appeal. And why would one file a petition for permission to appeal when the District Court said we're going to take another look at this order and perhaps change it. It's something that's- It is a non-final order. This motion granting or denying class actions that is the most non-final, because the rules tell us it can be changed anytime up to the entry of final judgment. And let me clarify. When I say non-final, I mean, it renders it not the District Court's last word on desertification based upon the evidence in front of the district court. The district court is going to reconsider this order and it's our position that under those circumstances, it doesn't make sense to seek a palette review when the order might be changing based upon dependency of that reconsideration motion. I suppose I'm with you that it makes more sense to do the motion for reconsideration before the appeal and that that is true even when the appeal is interlocutory. But, you know, not every rule we have makes perfect sense. And it just doesn't seem as though you're off the hook from actually looking up the rules and saying, well, look, this says 14 days. I better file this appeal within 14 days or at least ask some further questions about it just because it sort of seems to make sense to do a motion for reconsideration before an appeal. Well, the rules actually do not specifically address reconsideration motions. And then it has long been understood that a timely reconsideration motion will suspend the time to appeal. Now, I think it would be a different situation if, for instance, we were in a bankruptcy appeal, which specifically says that the time to appeal stops running, or if you file within 14 days under the bankruptcy rules, and there it was clear
. Now, I just don't think it's fair to say that District Court misled here. I don't even think it falls into that box necessarily. The ‑‑ the ‑‑ the ‑‑ the motion for leave to file an appeal, you didn't tell the judge you were intending to do that, did you? The Rule 23F was not brought up at the status conference. So, how was the judge supposed to play lawyer? He's supposed to tell you you ask him, let me file a motion for reconsideration. He's supposed to protect you and be your lawyer until you know if you file it next week, you're going to lose your time to appeal. I don't know of any case we've ever held where a judge has to tell you something when you don't ask the judge about that. And it's really not our position that we're placing any kind of blame on the district judge. It is our position, though, that when a District Court says that it's going to reconsider an order, that essentially renders the order non-final for purposes of appeal. And why would one file a petition for permission to appeal when the District Court said we're going to take another look at this order and perhaps change it. It's something that's- It is a non-final order. This motion granting or denying class actions that is the most non-final, because the rules tell us it can be changed anytime up to the entry of final judgment. And let me clarify. When I say non-final, I mean, it renders it not the District Court's last word on desertification based upon the evidence in front of the district court. The district court is going to reconsider this order and it's our position that under those circumstances, it doesn't make sense to seek a palette review when the order might be changing based upon dependency of that reconsideration motion. I suppose I'm with you that it makes more sense to do the motion for reconsideration before the appeal and that that is true even when the appeal is interlocutory. But, you know, not every rule we have makes perfect sense. And it just doesn't seem as though you're off the hook from actually looking up the rules and saying, well, look, this says 14 days. I better file this appeal within 14 days or at least ask some further questions about it just because it sort of seems to make sense to do a motion for reconsideration before an appeal. Well, the rules actually do not specifically address reconsideration motions. And then it has long been understood that a timely reconsideration motion will suspend the time to appeal. Now, I think it would be a different situation if, for instance, we were in a bankruptcy appeal, which specifically says that the time to appeal stops running, or if you file within 14 days under the bankruptcy rules, and there it was clear. I mean, here you have rules that are silent with respect to reconsideration motions. So I think we go by the Healy-Dee-Dee-Dee-Ree Bar-Aline of cases, which say that a timely reconsideration motion suspends the time to appeal. And here the reconsideration motion was indeed timely. And for that reason, the time to appeal should be suspended and therefore runs from June 24th of 2015. The rule 23th petition was filed 14 days later, and the appeal, therefore, was properly deemed timely. If we reject that, do you lose? If you reject that you didn't file a motion within the time. Within the 14 days. I'm not mad at my answer to the question. No, because we still have equitable tolling and the Harris-Truck lines, Thompson, on line of cases, so neither circumstance, the judgment should be affirmed. Thank you. Thank you, Council. Mr. Huesni, you have a minute left. Your Honor, in this remaining minute, let me emphasize and direct the Court's attention to PA 69-77, where the short status conference took place. And in that status conference, it is notable that not only did the Court not mention rule 23F, not mention any sort of a pellet right, but council did not even mention 23F, nor even say the word appeal. And in fact, no mistake at all was made by the judge in that case. To have the rule that Lambert is urging today, would have a judge effectively need to conduct a rule 11 criminal colloquy with council, asking if they're aware of all sorts of potential related rights. That is asking an impossible task for a district court judge and an unfair one, and goes well beyond the acknowledged sharply honed exception, which does not apply factually in this case. Thank you. Thank you, Council. The case is submitted