SUPPLEMENTAL REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This habeas corpus case is before the Court on Petitioner's Objections (Doc., No. 25) to the Magistrate Judge's Report and Recommendations (Doc. No. 23) recommending denial of Petitioner's Motion to Extend Time for Filing Notice of Appeal (Doc. No. 21). Judge Spiegel has recommitted the Motion for reconsideration in light of the Objections (Doc. No. 26).

Final judgment was entered in this case on November 27, 2012. The instant Motion was filed January 30, 2014, making an extension of time under Fed. R. App. P. 4(a)(5)(A)(i) or 4(a)(6) unavailable to Petitioner. Instead, he relied on the "unique circumstances" doctrine recognized in United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1267-70 (9th Cir. 1985).

The original Report recommended denying the extension, concluding both the Ninth Circuit and the Supreme Court had rejected the "unique circumstances" doctrine. (Report, Doc. No. 23, PageID 1484, citing Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1461 (9th Cir. 1992), and Bowles v. Russell, 551 U.S. 205, 214 (2007). Petitioner objects that both the Supreme Court in Bowles and the Magistrate Judge have ignored the impact of the Rules Enabling Act on this case (Objections, Doc. No. 25, PageID 1488). The Act, after empowering the Supreme Court to adopt rules of practice, provides in 28 U.S.C. § 2072(b) "Such rules shall not abridge, enlarge or modify any substantive right." Based on this provision, Petitioner argues:

As best the Magistrate Judge can make sense of this argument, it is that the right to an appeal on the merits is a substantive right somehow abridged by the Supreme Court's decision in Bowles in unjustified deference to Congress.

First of all, Bowles is in no way an attempt by the Supreme Court to exercise its rulemaking power under the Rules Enabling Act. Thus the limitation in 28 U.S.C. § 2072(b) has no application here.

Instead, Bowles interpreted a different statute, 28 U.S.C. § 2107(c), as imposing a jurisdictional limit on the courts of appeals. That statute provides that no appeal shall be heard unless a notice of appeal is filed within thirty days of judgment with exceptions for certain parties and with authority in the district courts to grant extensions under limited circumstances. The Supreme Court held that its own prior jurisprudence which had recognized the "unique circumstances" doctrine as an exception to the thirty-day rule was "illegitimate" and it expressly overruled Harris Truck Lines, Inc., v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962), and Thompson v. INS, 375 U.S. 384 (1964). Bowles at 214.

Petitioner Smith seems to be arguing that the Supreme Court, which created the "unique circumstances" doctrine, did not have authority to abrogate it. That is equivalent, it seems to the Magistrate Judge, to arguing that Congress, which created the right to appeal to the circuit courts of appeals (and indeed created those courts), cannot regulate when appeals can be taken. Somehow, Smith seems to be arguing, the "unique circumstances" doctrine has constitutional status which the Supreme Court must respect.

Congress has the "undoubted power to regulate the practice and procedure of federal courts" Sibbach v. Wilson, 312 U.S. 1, 10 (1940). § 2107(c), entitled Time for Appeal to Court of Appeals, is undoubtedly an exercise of that power. In Bowles the Supreme Court determined that that statute created a jurisdictional line that district courts, even in habeas corpus cases, were not empowered to cross.1 A respectable argument can be made and was made in dissent in Bowles that the statute should not be interpreted to be jurisdictional. But this Court must follow the decision in Bowles; it is not free to follow the logic of the dissent.

An argument could also be made that2, because the Rules of Appellate Procedure are adopted by the Supreme Court under the Rules Enabling Act, they are not subject to the sort of rigid application which the Supreme Court commands for jurisdictional statutes in Bowles. The difficulty with this argument is that the Bowles Court interpreted Fed. R. App. P. 4(a)(6) and 28 U.S.C. § 2107 in tandem and held that both of them were jurisdictional in nature.

Conclusion

Based on the foregoing analysis, the Magistrate Judge again respectfully recommends that the Motion to Extension be denied.