
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                               ______     ____________________          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).            ______    _____________________                                          2          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          ________________________________          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                                          3                    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.                                          4
