DEAL v. CINCINNATI BOARD OF EDUCATION
Annotate this Case
402 U.S. 962 (1971)
U.S. Supreme Court
DEAL v. CINCINNATI BOARD OF EDUCATION , 402 U.S. 962 (1971)
402 U.S. 962
CINCINNATI BOARD OF EDUCATION.
Supreme Court of the United States
May 3, 1971
On petition for writ of certiorari to the United States Court of Appeals of the Sixth Circuit. The petition for a writ of certiorari is denied since it was untimely filed.
Mr. Justice DOUGLAS, dissenting.
The court below held in this school segregation case that the 'district court correctly excluded evidence of alleged racial discrimination in the public and private housing markets.' I would remand this case so that that evidence can be made part of the record and the lower courts can rule on the issues of de jure and de facto segregation of the races that are presented. It is true that this petition arrived one working day after a time extension granted by Mr. Justice White expired. Unlike some types of cases where the time for filing is prescribed by our rules,1 Congress has stated that 'any writ of certiorari intended to bring any judgment or decree in a civil action, suit or proceeding before the Supreme Court for review shall be taken or applied for within ninety days after the entry of such judgment or decree. A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days.' 28 U.S.C. 2101(c). (Italics added.) The question here is whether a petition arriving at the Clerk's Office one day after the statutory period expires is jurisdictionally barred from a determination on the merits. Mr. Justice BLACK has pointed out that early cases under the predecessor sections to 2101 (c) 'made clear that this Court had power to waive the time requirement of these provisions under appropriate circumstances.' Teague v. Regional Commissioner of Customs, 394 U.S. 977, 982 ( dissenting opinion). And in Ray v.
Pierson (No. 94, October Term, 1966), 386 U.S. 547d 288, we decided on the merits a cross-petition for certiorari that was substantially out of time under 2101(c).2 We offered no explanation. [Footnote 3] Even under the companion sections to 2101(c) our practice has not been consistent. We have dismissed for failure to file appeals in the time set by Congress, e. g., Ward v. Winstead, 400 U.S. 1019d 630, while not always dismissing for untimely docketing under our rules even though the time limitations were also set by Congress, e. g., United Public Workers v. Mitchell, 330 U.S. 75, 84-86.
Naturally, past inconsistencies are no justification for overturning a congressional bar if one exists. But one does not exist in this case. The statute states a petition 'for review shall be taken or applied for' within certain specified times. That phrase is not free from ambiguity. What constitutes applying for review? A majority of the Court apparently feel it is receipt of the petition for certiorari by the Clerk's Office. Teague, supra. Yet I can see no reason why mailing or other transmission to this Court shall not be construed as an application for relief [402 U.S. 962 , 964]