Boston and Maine Corporation, Plaintiff, Appellant, v. Town of Hampton, Defendant, Appellee, 7 F.3d 281 (1st Cir. 1993)

Before TORRUELLA and CYR, Circuit Judges, and KEETON,^*  District Judge.

On March 5, 1993, this court entered judgment affirming the judgment of the United States District Court for the District of New Hampshire. 987 F.2d 855. 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.

Calling attention to the Opinion of the Supreme Court of New Hampshire in Schoff v. City of Somersworth, 630 A.2d 783 (N.H.1993), handed down 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. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (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, 64 S. Ct. 1015, 88 L. Ed. 1246 (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.2d 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). B & M has moved for a recall of mandate in this case.

We are troubled by the "intricate maze of relationships," Goncalves v. INS, 6 F.3d 830, 834-35 (1st Cir. 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 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:

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