Maine Corporation v. Hampton

• Court: Court of Appeals for the First Circuit
• Decided: October 19, 1993
• Docket: 92-1832
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

________

          No. 92-1832

BOSTON AND MAINE CORPORATION,
                            BOSTON AND MAINE CORPORATION,
                                Plaintiff, Appellant,

                                          v.

                                   TOWN OF HAMPTON,
                                   TOWN OF HAMPTON,
                                 Defendant, Appellee.

                                        BEFORE
                                        BEFORE

                          Torruella and Cyr, Circuit Judges,
                                             ______________
                             and Keeton,* District Judge.
                                          ______________

                                       ________

                                    ORDER OF COURT
                                    ORDER OF COURT

                               Entered October 19, 1993
                               Entered October 19, 1993

On March 5, 1993, this court entered judgment affirming
          the judgment of the United States District Court for the District
          of  New Hampshire.   An  Order denying  appellant's petition  for
          rehearing was entered on April 9, 1993.

                    On  or about October 1,  1993, the Clerk  of this court
          received  from Appellant Boston and Maine Corporation ("B & M") a
          Motion  to Enlarge Time in  Which to File  a Renewed Petition for
          Rehearing,  a Petition  for  Rehearing, and  a  Motion to  Recall
          Mandate.    The Clerk  received  from  Appellee  Town of  Hampton
          ("Hampton"), on or about October 7, 1993, its Objection to Motion
          to  Enlarge Time, and on or  about October 12, 1993, received its
          revised Objection to Motion to Recall Mandate.   

* Of the District of Massachusetts, sitting by designation.
          * Of the District of Massachusetts, sitting by designation.

Calling attention  to the Opinion of  the Supreme Court
          of  New Hampshire in Schoff  v. City of  Somersworth, handed down
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          August 31, 1993 (explicitly declaring erroneous two parts of this
          court's  assessment  of  the  substantive law  of  New  Hampshire
          regarding  municipal liability),  B  & M  moves  that this  court
          recall  its mandate  and  enlarge the  time  for a  petition  for
          rehearing.  Citing Braniff Airways, Inc. v. Curtiss-Wright Corp.,
                             _____________________    ____________________
          424 F.2d 427 (2d Cir.), cert. denied, 400 U.S. 801 (1970), B &  M
                                  ____________
          asserts that, under Fed. R. App. P. 26(b) and 40, this court "has
          the  power  to accept  a petition  for  rehearing which  is filed
          beyond   the  stated  14  day  time  limit  for  filing  of  such
          pleadings."  B & M's Motion to Enlarge Time, p. 4.

                    Although  Rule  40  does  grant  the  appellate  courts
          authority to extend the time for filing a petition for rehearing,
          a  court can do so only while  it has jurisdiction over the case.
          We lack jurisdiction  here.   The mandate issued  in this case on
          April 20, 1993, and "[i]ssuance of the mandate formally marks the
          end of  appellate jurisdiction."   Johnson v.  Bechtel Associates
                                             _______     __________________
          Professional Corp., 801 F.2d 412, 415 (D.C. Cir. 1986).
          __________________

                    Braniff  Airways, the sole support  cited by B  & M for
                    ________________
          its  proposed enlargement of  time, is not  to the contrary.   In
          Braniff  Airways, the  Second  Circuit determined  that the  case
          ________________
          before  it was still "sub judice."   Braniff Airways, 424 F.2d at
                                               _______________
          429.  The court then based  its decision in part on Huddleston v.
                                                              __________
          Dwyer, 322 U.S. 232 (1944), in which the Supreme Court "indicated
          _____
          that so  long as the case  was 'sub judice' the  court of appeals
          should  have entertained  the petition  for rehearing based  on a
          change  in state law" after  its decision.   Braniff Airways, 424
                                                       _______________
          F.2d  at 429.    Mandate having  issued in  the  case before  us,
          however, it is  no longer  sub judice  and we  lack authority  to
          consider a petition for rehearing.

                    Other  circuits have similarly  declined to  consider a
          petition  for rehearing  when no  part of  the case  remained sub
          judice.   See, e.g., Johnson,  801 F.2d  at 415 (D.C.  Cir. 1986)
                    ___  ____  _______
          (court  did not  have  jurisdiction over  petition for  rehearing
          after  mandate  had  been  issued); Iverson  v.  Commissioner  of
                                              _______      ________________
          Internal Revenue, 257  F.d 408,  409 (3d. Cir.  1958) ("With  the
          ________________
          mandates  on  the  judgments  here involved  outstanding,  it  is
          doubtful whether this court would have jurisdiction to consider a
          petition for rehearing.").

                    Precedents  suggest,  however,  that  even   after  the
          judgment of a court of appeals has become final and  the court no
          longer has jurisdiction to consider a subsequently filed petition
          for  rehearing,  the  court   may  reestablish  jurisdiction   by
          recalling  its  mandate   (either  on  motion   or  on  its   own
          initiative).   See  Johnson,  801  F.2d at  416;  Greater  Boston
                         ___  _______                       _______________
          Television  Corp. v. FCC, 463 F.2d 268 (D.C. Cir. 1971); see also
          _________________    ___                                 ___ ____
          Powers v. Bethlehem Steel Corp., 483  F.2d 963 (1st Cir. 1973).  
          ______    _____________________

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B & M has moved for a recall of mandate in this case.

                    We   are   troubled   by   the   "intricate   maze   of
          relationships," Goncalves v. INS,  Nos. 92-1122 and 92-2272, slip
                          _________    ___
          op. at 15 (1st Cir. Sept.  28, 1993), that would be created, were
          we  to assert  this suggested  "inherent  authority" to  recall a
          mandate.   What, for example, would be the effect on jurisdiction
          in  the  district court,  after a  mandate  is recalled  and then
          reissued?    And  what  reasoned explanation  would  justify  the
          divergence  between fixed  time  limits on  the district  court's
          ability to  amend a  judgment under  Fed. R. Civ.  P. 60  and the
          absence of like  time limits on the  suggested inherent authority
          of the  appellate courts to recall  a mandate, even  if acting on
          precisely the same grounds?  Would vesting such exceptional power
          solely  in  courts  of  appeal  create  an  area  of  essentially
          original, rather than appellate, jurisdiction in courts of appeal
          over closed cases?

                    Another troubling thought about this procedural maze is
          that  the precedents for recalling a mandate may have been rooted
          in practices developed  before adoption of the  Federal Rules (of
          Civil  Procedure and Appellate Procedure),  and at a  time when a
          court retained jurisdiction over cases decided in a term of court
          until that  term ended.  To continue this practice of recalling a
          mandate  now,   when  an   appellate  court's  "term"   has  less
          significance, risks extending  indefinitely the authority of  the
          court over closed cases.  Neither the courts  nor the parties who
          rely upon the finality  of their judgments would welcome  such an
          extension.

                    We conclude,  however, that  we need not  resolve these
          concerns to  decide this  case.   Instead, we assume  in B  & M's
          favor,  without so deciding, that a court of appeals may reassert
          jurisdiction over  a case  by recalling  its mandate, and,  after
          jurisdiction is  thus  reestablished, may  consider an  otherwise
          untimely petition for rehearing.   See Johnson, 801 F.2d  at 416;
                                             ___ _______
          Greater Boston Television  Corp., 463  F.2d at 275-80.   Even  if
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          this  authority to recall a  mandate still exists,  it "should be
          exercised  sparingly,  and only  upon  a  showing of  exceptional
          circumstances."  Dilley  v. Alexander,  627 F.2d  407, 411  (D.C.
                           ______     _________
          Cir.  1980) (internal  citations omitted);  see also  Powers, 483
                                                      ___ ____  ______
          F.2d at 964.  Resort to  recall power is an "extraordinary step,"
          and "should not  be used  simply as  a device  for granting  late
          rehearing."  Johnson, 801 F.2d at 416.
                       _______

                    In  denying a  motion to recall  mandate in  a previous
          case  (before  the  Federal  Rules of  Appellate  Procedure  were
          adopted),  this court emphasized the need to bring an orderly end
          to litigation:

                    If  we were in error [in this case], of which
                    we are not presently persuaded, we believe it

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would   be  far   greater  error   to  permit
                    reconsideration now after denial of petitions
                    for rehearing and certiorari.   There must be
                    an  end to  dispute.   If a  situation arose,
                    such as a subsequent decision  by the Supreme
                    Court,   which   showed  that   our  original
                    judgment  was demonstrably wrong, a motion to
                    recall  mandate might  be  entertained.   The
                    present case is far from that.

          Legate v. Maloney, 348 F.2d 164, 166 (1st Cir. 1965).
          ______    _______

                    This earlier declaration retains its full force today. 
          The judgment in  the case  before us is  not demonstrably  wrong.
          Indeed,  as  Hampton  correctly  argues, the  precise  issues  of
          substantive law  presented  by  this case  were  not  before  the
          Supreme Court of New Hampshire in either of the two  recent cases
          brought to  our attention by B  & M.  Thus,  although the Supreme
          Court  of  New Hampshire  has  explicitly declared  parts  of our
          reasoning in  this case  erroneous, we  would  only compound  our
          _________
          error  by reopening  a  dispute in  which  our judgment  was  not
                                                         ________
          demonstrably wrong.  

                    Moreover, as  Hampton observes, all parties  were aware
          that  the Schoff case was pending when  this case was filed, and 
                    ______
          plaintiff

                    was  free  to  file  this  action   in  state
                    court...,  to seek  to  certify the  question
                    presented in  this case to  the New Hampshire
                    Supreme  Court while this case remained open,
                    to move to have this court stay consideration
                    of  this  matter  until  the   New  Hampshire
                    Supreme Court  decided Schoff,  or to seek  a
                                           ______
                    writ  of  certiorari  to  the  United  States
                    Supreme Court following this Court's March 5,
                    1993  decision.  Instead, the plaintiff chose
                    not  to  pursue  these  alternatives  and  no
                    manifest injustice would result  in requiring
                    the plaintiff  to be  bound by the  ruling of
                    the forum it did select.

          Hampton's (revised) Objection  to Motion to  Enlarge Time, p.  7.
          In these circumstances,  we conclude  that it would  be not  only
          unwarranted but unjust to recall the mandate in this case. 

                     Appellant's motion  to enlarge time to  file a renewed
          petition for  rehearing and appellant's motion  to recall mandate
          are denied.

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