                                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                                        Pursuant to Sixth Circuit Rule 206
                                                File Name: 05a0487p.06

                           UNITED STATES COURT OF APPEALS
                                           FOR THE SIXTH CIRCUIT
                                             _________________


                                                         X
                                 Petitioner-Appellant, -
 KEITH BOWLES,
                                                          -
                                                          -
                                                          -
                                                              No. 04-3262
         v.
                                                          ,
                                                           >
 HARRY RUSSELL, Warden,                                   -
                                Respondent-Appellee. -
                                                        N
                         Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                      No. 02-01520—Donald C. Nugent, District Judge.
                                           Submitted: October 25, 2005
                                    Decided and Filed: December 28, 2005
          Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; and ROSE, District Judge.*
                                                _________________
                                                     COUNSEL
ON BRIEF: Paul Mancino, Jr., MANCINO, MANCINO & MANCINO, Cleveland, Ohio, for Appellant.
Bruce D. Horrigan, CORRECTIONS LITIGATION SECTION, Cleveland, Ohio, for Appellee.
                                                _________________
                                                    OPINION
                                                _________________
        BOGGS, Chief Judge. This is a case about missed deadlines. At times, they go unnoticed, but
sometimes the lapse is fatal. This case presents one of the fatal variety. Petitioner Keith Bowles failed to
receive timely notice of the district court’s ruling that triggered his appeal period. When he did receive
notice, he correctly sought relief under Fed. R. App. P. 4(a). When the district court granted his requested
relief but mistakenly offered an erroneous deadline, Bowles chose it and failed to comply with the deadline
of February 24, 2004. This court on motion declined to dismiss his appeal. Today, we correct that error
and hold that the fourteen-day period of Rule 4(a)(6) of the Federal Rules of Appellate Procedure is not
susceptible to extension through mistake, courtesy, or grace.
                                                            I
       On August 22, 1998, Keith Bowles, Richard Hayden, Damon Anderson, and Jamal Russell drove
from Cleveland to Fairport Harbor, Ohio to see a performance at a bar called Hellbusters. The group left

   *
    The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by designation.


                                                            1
No. 04-3262            Bowles v. Russell                                                             Page 2


the bar early in the morning and drove to nearby Painesville to attend an after-hours party at the Argonne
Arms apartment complex. On their way to the party, they passed a bar called Nino’s, outside of which they
saw Hayden’s cousin, Marcus Moore, in some physical distress. Later, after rendezvousing with Moore,
they learned from him that he had been jumped and beaten by a group of men from Painesville including
Antonio Rymmer.
        Bowles, Hayden, Anderson, and Russell agreed to search for Rymmer at the Argonne Arms and
extract their revenge. When they found Rymmer, and he was armed, the group decided to delay their plan.
Soon after, the group happened upon the victim, Ollie Gipson. Gipson appeared as if he might be armed
and, when it became clear that he was not, Bowles, Hayden, and Anderson beat him. The final, deadly,
blows were administered by Hayden after Bowles had returned to the car. Gipson died the next day as a
result of his injuries. Bowles was indicted on September 4, 1998, for his part in the beating on a charge of
felonious assault in violation of Ohio Revised Code § 2903.11, and murder in violation of § 2903.02(B).
        In the trial court, Bowles moved for dismissal, arguing that Ohio’s Revised Code had created two
categories of murder in contravention of the Fourteenth Amendment. See U.S. Const. amend. XIV. The
court denied the motion and held that the Supreme Court has never held unconstitutional the individual
states’ ability to enact felony-murder statutes. See Lockett v. Ohio, 438 U.S. 586, 602 (1978) (holding
“[t]hat states have authority to make aiders and abettors equally responsible, as a matter of law, with
principals, or to enact felony-murder statutes is beyond constitutional challenge”). On March 3, 1999, an
Ohio jury entered a verdict of guilty on a single count of murder and sentenced Bowles to serve an indefinite
term of imprisonment of fifteen years to life in an Ohio correctional facility.
        Bowles appealed his case to both the Court of Appeals and Supreme Court of Ohio. Both denied
him relief. See Ohio v. Bowles, No. 99-L-075, 2001 WL 502042 (Ohio Ct. App. May 11, 2001). The one-
year statue of limitations for federal habeas began running when the ninety-day certiorari period ended. See
Abela v. Martin, 348 F.3d 164, 172 (6th Cir. 2003); 28 U.S.C. § 2244(d)(1) (allowing a one-year statute of
limitations on filing from the day a state conviction becomes final).
        On September 5, 2002, Bowles filed his federal petition for a writ of habeas corpus. The case was
referred to a magistrate judge, who, on May 23, 2003, issued a report and recommendation that the petition
be denied. Bowles filed a lengthy objection to the magistrate judge’s report, but United States District
Judge Nugent, on July 10, 2003, adopted the findings in a short memorandum opinion, additionally denying
the petitioner a certificate of appealability pursuant to 28 U.S.C. § 2253(c). The order was docketed on July
28, 2003.
        On August 6, 2003, Bowles moved for a new trial under Rule 59 or to amend the judgment under
Rule 52, objecting to the adoption of the magistrate judge’s report without, he argued, de novo review of
the findings. See Fed. R. Civ. P. 52, 59. The motion was denied on September 9, 2003, the date of the final,
appealable order in this case. Accordingly, a timely notice of appeal would have been entered, at the latest,
by October 9. See Fed. R. App. P. 4(a)(1)(A) (giving thirty days to appeal a final judgment). However,
instead of filing his notice, Bowles, remained silent for ninety-four days. All possible avenues of appeal
closed during this period, save one. Only Fed. R. App. P. 4(a)(6) allows a party to timely file a notice of
appeal ninety-four days after judgment. See Fed. R. App. P. 4(a)(1) (requiring a notice of appeal to be filed
within thirty days of judgment); Fed. R. App. P. 4(a)(4) (granting thirty days for appeal after the disposal
of some motions including those under Fed. R. Civ. P. 59); Fed R. App. P. 4(a)(5) (extending time an
additional thirty days for “excusable neglect or good cause”).
        On December 12, 2003, Bowles moved to reopen the appeal period pursuant to Rule 4(a)(6) of the
Federal Rules of Appellate Procedure. Bowles claimed that the order of September 9, in contravention of
the Rules, was never served by the court and that he was unaware of the order until December 3, 2003, when
he obtained a docket sheet. See Fed. R. Civ. P. 77(d) (directing that “[i]mmediately upon the entry of an
order or judgment the clerk shall serve a notice”). The parties do not dispute the lack of notice, but Bowles
No. 04-3262             Bowles v. Russell                                                               Page 3


blames the error on the court while the Warden claims that Bowles was at fault for failing to comply with
the requirements imposed by electronic filing. Regardless, Bowles’s contention apparently had merit—the
district court granted his motion on February 10, 2004. At this point, the district court inexplicably erred
in miscalculating and then stating the cut-off date for the notice of appeal. In its marginal order, citing Rule
4(a)(6), the court denied the motion to vacate but granted the motion to reopen, giving Bowles until
February 27 to file his notice of appeal. By its explicit terms, the Rule allows for only a fourteen-day
extension. A timely appeal thus was required to have been filed by February 24. However, Bowles filed
his notice of appeal on February 26, timely under the judge’s order, but clearly not in compliance with the
Rule.
        On March 10, 2004, this court issued a show-cause order, questioning the late filing of the appeal.
Bowles filed a response and on April 26, 2004, a motions panel of this court discharged the show-cause
order and dismissed the appeal for lack of jurisdiction “as it applies to the July 28, 2004 judgment and the
September 9, 2003, order.” But, the order continued, “[t]he appeal was timely filed as it applies to the
February 10, 2004 ruling.” On September 8, 2004, construing the appeal as an application for a certificate
of appealability under Fed. R. App. P. 22(b), this court denied a certificate of appealability and Bowles
promptly petitioned for a rehearing. His motion for reconsideration was entirely concerned with the merits
of his habeas petition denied by the district court. On December 28, 2004, perhaps unaware of the
procedural disposition of the appeal, a different motions panel of this court granted Bowles’s motion for
reconsideration and granted in part and denied in part a certificate of appealability on some of the
constitutional issues of the case. The order, which makes no mention of timeliness, states:
       [W]e grant a certificate of appealability on the following issues: whether Bowles was denied
       a fair trial and his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments
       by the prosecution’s questions to him on cross-examination about the fact that he did not
       make a statement to the police and by the prosecutor’s comments regarding his failure to
       volunteer a statement to the police.
                                                      II
                                                       A
        Respondent Warden argues that lack of subject matter jurisdiction prevents us from hearing the
merits of this appeal and that the jurisdictional scope of this appeal should be limited to the marginal order
of February 10, 2004, reopening the time for filing an appeal. Petitioner does not offer any argument
relating to the jurisdictional problem presented. However, even if the respondent had overlooked this issue,
the Federal Rules of Civil Procedure make it incumbent upon this court to dismiss any action when it
appears that the court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); Janis v. Ashcroft, 348 F.3d 491, 493 (6th
No. 04-3262                  Bowles v. Russell                                                                               Page 4


Cir. 2003).1 See also Friends of Crystal River v. EPA, 35 F.3d 1073, 1077-78 (6th Cir. 1994) (applying de
novo review to questions of subject matter jurisdiction).
                                                                 B
        The Federal Rules of Appellate Procedure define the applicable deadlines in the courts of appeals.
Fed. R. App. P. 1(a)(1); see 28 U.S.C. § 2071 (rules are consistent with acts of Congress). See also 28
U.S.C. § 2072(b) (“rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with
such rules shall be of no further force or effect after such rules have taken effect.”). When properly
informed of the judgment, a party has thirty days to file a notice of appeal. Fed. R. App. P. 4(a)(1)(A). A
limited extension of the time to file may also be granted upon a party’s motion under Rule 4(a)(5). See Zack
v. United States,133 F.3d 451, 453 (6th Cir. 1998). Where, as in this case, a party claims that he failed to
receive notice of a judgment, Rule 4(a)(6) allows the district court to extend the time afforded to file a notice
of appeal:
         (6) Reopening the Time to File an Appeal. The district court may reopen the time to file an
         appeal for a period of 14 days after the date when its order to reopen is entered, but only if
         all the following conditions are satisfied:
                  (A) the motion is filed within 180 days after the judgment or order is entered or
                  within 7 days after the moving party receives notice of the entry, whichever is
                  earlier;
                  (B) the court finds that the moving party was entitled to notice of the entry of the
                  judgment or order sought to be appealed but did not receive the notice from the
                  district court or any party within 21 days after entry; and
                  (C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6) (emphasis added)2; 28 U.S.C. § 2107. The Appellate Rules underscore the
exclusivity of the 4(a)(6) remedy by explicitly excluding it from the blanket Rule regarding extension of
other appellate time prescriptions, “For good cause, the court may extend the time prescribed by these
rules. . . .[b]ut the court may not extend the time to file a notice of appeal (except as authorized in Rule 4).”
Fed. R. App. P. 26(b); see Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998).

    1
      The Supreme Court has recently distinguished between rules that govern subject-matter jurisdiction and those that are
“inflexible claim-processing” rules. See Eberhart v. United States, 126 S. Ct. 403 (2005) (per curiam); Kontrick v. Ryan, 540
U.S. 443, 456 (2004). For two reasons, we believe this distinction is not applicable to the case at bar. First, in Kontrick, the Court
found that “[n]o statute, however, specifies a time limit for filing a complaint objecting to the debtor’s discharge. Instead, the
controlling time prescriptions are contained in the Federal Rules of Bankruptcy Procedure, specifically, Rules 4004(a) and (b)
and 9006(b)(3).” 540 U.S. at 448. Second, the petitioner in Kontrick, in answering the untimely complaint, never addressed the
issue of untimeliness, and thus forfeited the right to rely on the time limits in the Federal Rules of Bankruptcy Procedure. Id. at
459–60 (“No reasonable construction of complaint-processing rules, in sum, would allow a litigant situated as Kontrick is to defeat
a claim, as filed too late, after the party has litigated and lost the case on the merits”).
     Similarly, in Eberhart, the government opposed the defendant’s motion on the merits, ignoring the timeliness problem. Thus,
“where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited
that defense.” 126 S. Ct. at 407. Nor does the court in Eberhart identify a specific statute from which Rule 33 could be said to
contain an element of subject-matter jurisdiction. See Kontrick, 540 U.S. at 453 (“Only Congress may determine a lower federal
court’s subject-matter jurisdiction.”).
     In both these ways, the case at bar is distinguishable. The government, did not, nor did it need to, oppose Bowles’s Rule
4(a)(6) motion in the district court. Instead, it objected to the timeliness of the appeal in its brief. See Br. of Resp’t at 1 (“This
Court lacks jurisdiction to hear this appeal”). And, in contrast to the situation in Kontrick, Congress has limited our jurisdiction
in the Act of December 9, 1991, Pub. L. 102-198, § 12, 105 Stat. 1623, 1627 (codified at 28 U.S.C. § 2107) (“the district court
may . . . reopen the time for appeal for a period of 14 days . . . .”). For these reasons, we think that Rule 4(a)(6) is, in fact, “a
prescription[] delineating the classes of cases” that we may hear. 540 U.S. at 455. In addition, the respondent, by objecting in
his brief to this court, never forfeited his right to strict adherence to Rule 4.
    2
      The rule was amended, effective December 1, 2005. The change requires that notice be pursuant to Fed. R. Civ. P. 77(d)
but otherwise the substance of the rule remains the same.
No. 04-3262             Bowles v. Russell                                                              Page 5


        Petitioner moved to reopen pursuant to Rule 4(a)(6) on December 12, 2003. In accordance with the
Rules, the motion was filed within seven days of December 5, the date on which petitioner received notice
of the final judgment. This is also earlier than 180 days after the judgment, March 7, 2004. Finally,
December 5 is not within 21 days of the entry of judgment, September 9. On February 10, 2004, the motion
was granted and a marginal order reopened the period for appeal, extending it until February 27, 2004.
However, according to the Rule, the new appeal period can only extend fourteen days after the date when
the order is entered. Since the order was entered on the 10th, the Rule’s outermost deadline would have
been February 24. See Fed. R. App. P. 26(a) (computing time). Petitioner filed his notice of appeal on
February 26, 2004, inside of the deadline stated in the order, but outside of the Rule’s deadline.
                                                     III
                                                      A
        Rule 4(a) has been interpreted as both mandatory and jurisdictional by the Supreme Court and this
Circuit. See Browder v. Dir., Dept. of Corrs. of Illinois, 434 U.S. 257, 264 (1978); In re Sulzer Orthopedics
& Knee Prosthesis Prods. Liab. Litig., 399 F.3d 816, 817 (6th Cir. 2005); Peake v. First Nat. Bank and
Trust Co. of Marquette, 717 F.2d 1016, 1018 (6th Cir. 1983); Oja v. Dep’t of Army, 405 F.3d 1349, 1358
(Fed. Cir. 2005) (noting that it is “beyond cavil” that 4(a)(6) is mandatory and jurisdictional).
        Other circuits have described Rule 4(a)(6)’s limited opportunity to reopen the time for appeal as one
that “balances the inequity of foreclosing appeals by parties who do not receive actual notice of a dispositive
order against the need to protect the finality of judgments.” See Vencor Hosp., Inc. v. Standard Life and
Acc. Ins. Co., 279 F.3d 1306, 1309 (11th Cir. 2002) (describing the Rule as limited and exclusive).
       According to the Notes of the Advisory Committee on Appellate Rules, the purpose of the
       1991 amendment was to provide “a limited opportunity for relief in circumstances where the
       notice of entry of a judgment or order, required to be mailed by the clerk pursuant to [Fed.
       R. Civ. P. 77(d)], is either not received by a party or is received so late as to impair the
       opportunity to file a timely notice of appeal”
Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 360 (8th Cir. 1994). See also In re Stein, 197 F.3d 421,
425 (9th Cir. 1999) (quoting identical language). The Tenth Circuit has found that “the essence” of the Rule
is “finality of judgment.” Clark v. Lavallie, 204 F.3d 1038, 1041 (10th Cir. 2000). The Clark court, like
the other circuits to have considered the issue, found the 180-day limitation in the Rule to be “specific and
unequivocal” Id. at 1040. See Vencor, 279 F.3d at 1311; Servants of the Paraclete v. Does I-XVI, 204 F.3d
1005, 1010 (10th Cir. 2000); see also 16A Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 3d § 3950.6 at 228 (1999) (“Rule 4(a)(6) provides the exclusive means for extending appeal
time for failure to learn that judgment has been entered. Once the 180-day period has expired, a district court
cannot rely on the one-time practice of vacating the judgment and reentering the same judgment in order
to create a new appeal period”). “While application of that concept infrequently may work misfortune, it
is an overriding principle which demands enforcement.” Clark, 204 F.3d at 1041. “Moreover, nothing
within Rule 4(a)(6) indicates it is permissive or that its limitations may be waived for equitable reasons.”
Id. at 1040 (referring specifically to the 180-day limit).
                                                      B
        Counseling a contrary and more liberal interpretation of the Rule is a line of Supreme Court cases
employing an equitable interpretation of appeals time limits, starting with Harris Truck Lines, Inc. v. Cherry
Meat Packers, Inc., 371 U.S. 215 (1962) (per curiam). In Harris, the judgment of the trial court became
final while the lead member of the litigation team was on vacation in Mexico. Id. at 215–16. The trial
counsel in the United States was without direction about whether or not an appeal should be filed, so he
moved for an extension to the regular thirty-day limit for filing a notice of appeal pursuant to then Fed. R.
Civ. P. 73(a), now Fed. R. App. P. 4(a)(5)(A)(ii), allowing an extension where “that party shows either
No. 04-3262             Bowles v. Russell                                                                   Page 6


excusable neglect or good cause.” Id. at 216. The motion was granted, an extra two weeks prescribed, and
the notice of appeal was timely filed. Ibid. On appeal, however, the Seventh Circuit held that the movant
had not met the statutory standard under Rule 73 for “excusable neglect based on a failure of a party to learn
of the entry of the judgment,” and that jurisdiction was thus lacking. Harris Truck Lines, Inc. v. Cherry
Meat Packers, Inc., 303 F.2d 609, 611 (7th Cir. 1962) (quoting Fed. R. Civ. P. 73(a)). The Supreme Court
reversed, noting the “obvious great hardship to a party who relies upon the trial judge’s finding,” and held
that these decisions should be given “great deference.” 371 U.S. at 217. Harris’s closing language contains
a phrase that has come to identify this line of cases: “Whatever the proper result as an initial matter on the
facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought
not to have disturbed the motion judge’s ruling.” Ibid. (emphasis added). Thus, in Harris, all action was
within the relevant time limits. The only quarrel was over the effect of a possibly mistaken substantive
ruling on which counsel relied.
         Harris was soon followed by Thompson v. INS, 375 U.S. 384 (1964) (per curiam). In Thompson,
the trial court explicitly accepted, and the government did not object to, the timeliness of a motion for a new
trial that was actually two days late. Id. at 386. The motion was denied and a notice of appeal was filed that
was timely with respect to the most recent motion, but not as to the original judgment. Ibid. The court of
appeals dismissed the notice as untimely. Thompson v. INS, 318 F.2d 681, 684 (7th Cir. 1963); 375 U.S.
at 385. The Supreme Court, however, relying on Harris, supra, reversed:
       The instant cause fits squarely within the letter and spirit of Harris. Here, as there, petitioner
       did an act which, if properly done, postponed the deadline for the filing of his appeal. Here,
       as there, the District Court concluded that the act had been properly done. Here, as there,
       the petitioner relied on the statement of the District Court and filed the appeal within the
       assumedly new deadline but beyond the old deadline. And here, as there, the Court of
       Appeals concluded that the District Court had erred and dismissed the appeal. Accordingly,
       in view of these ‘unique circumstances,’ we . . . remand the case to . . . be heard on the
       merits.
Thompson, 375 U.S. at 387 (quoting Harris, 371 U.S. at 217) (emphasis added, citation omitted). Four
justices dissented in Thompson, finding that it was not analogous to Harris. Speaking through Justice Clark,
they noted that the court in Thompson, unlike the court in Harris “had no jurisdiction to pass upon the
untimely motions,” ten days having already elapsed. Id. at 389. Further, they accused the majority of
extending Harris into a context where “excusable neglect” is neither mentioned nor alleged, making the
standard of “unique circumstances” meaningless. Ibid. Accord, Wolfsohn v. Hankin, 376 U.S. 203 (1964)
(per curiam) (extending time to move for a rehearing where extension was granted within the statutory
deadline).
        The most recent, and only subsequent, decision to discuss Thompson is Osterneck v. Ernst &
Whinney, 489 U.S. 169 (1989). There, the court held that a postjudgment motion for prejudgment interest
is a motion under Fed. R. Civ. P. 59 to alter or amend the judgment, and that it operates with Fed. R. App.
P. 4(a)(4) to vitiate any notice of appeal filed while the motion is pending. Id. at 177. Even though the
litigants claimed that the district court had led them to believe that their notice of appeal, made during the
pendency of their Rule 59 motion, was timely, the Court refused to apply Thompson to reverse the court of
appeals. Ibid. The Court made two important statements. First, it stated that Thompson required an
“affirmative[] represent[ation]” by the district court. Id. at 178. Second, it severely limited Thompson and
stated that Thompson, “applies only where a party has performed an act which, if properly done, would
postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this
act has been properly done.” Ibid.
       This court has recognized the “unique circumstances” doctrine of Thompson. See, e.g., Lawrence
v. The Teamsters, 320 F.3d 590, 593 (6th Cir. 2003) (excluding court clerks and limiting reliance to
statements by judges); Birrell v. Brown, 867 F.2d 956, 957 (6th Cir. 1989) (allowing extension of appeal
No. 04-3262             Bowles v. Russell                                                                 Page 7


period before 1991 amendment to Fed. R. App. P. 4). Yet, it appears that this specific fact situation has not
been considered by this, or any other, circuit.
                                                        C
         In comparing this case to the available precedents, we note that the circumstances here fall outside
of the test formulated in Osterneck, that Thompson applies “only where a party has performed an act which,
if properly done, would postpone the deadline for filing his appeal and has received specific assurance by
a judicial officer that this act has been properly done.” Osterneck, 489 U.S. at 170. As in Osterneck, “that
is not the case here.” Ibid. First, petitioner’s act did not attempt to postpone a deadline for filing his appeal;
it was to move for a reopening of the appeal period so that he might file his untimely notice of appeal.
Second, it was, in fact, the district court here that performed the improper act and purported to extend the
filing date beyond what was permitted by the Rule. Clearly the district court is not a party. Additionally,
the chronological order of the actions is distinct from those in Osterneck. The rule in that case requires that
judicial assurances follow the actions of the party. Here, in contrast, the judicial assurance precedes the
party’s act. Finally, petitioner received no assurances from the district court that his notice of appeal was
timely. Nor, as we explain below, did this court provide any meaningful assurance that the notice, with
regard to any of the merits in the case, was timely. We believe that Osterneck’s language to limit the reach
of Thompson is applicable in this case. If Thompson is, in fact, a doctrine of “unique circumstances,” then
it does not apply to the case at bar.
         Additionally, considering policy, the Harris line of cases operates to excuse neglect on the part of
the litigant, not on the part of the court. They are concerned with the unfairness and “obvious great
hardship” of an appeals court reversing a trial court’s decision to accept the negligent acts of a litigant, not
with the negligent acts of the court itself. Harris, 371 U.S. at 217. They are therefore distinguishable
through both their facts and the policies they promote. All these cases predate the 1991 amendments to the
Rules of Appellate Procedure which, we believe, further undermine any argument for their liberal
application in this situation. Bowles’s situation is clearly contemplated and treated by the 1991 addition
of Rule 4(a)(6). In the words of the Advisory Committee:
        The amendment provides a limited opportunity for relief in circumstances where the notice
        of entry of a judgment or order, required to be mailed by the clerk of the district court . . .
        is either not received by a party or is received so late as to impair the opportunity to file a
        timely notice of appeal. The amendment adds a new subdivision (6) allowing a district court
        to reopen for a brief period the time for appeal upon a finding that notice of entry of a
        judgment or order was not received from the clerk or a party within 21 days of its entry and
        that no party would be prejudiced.
Advisory Committee Note to 1991 Amendment to Fed. R. App. P. 4.
        We believe that the truly relevant cases are those like Clark and Zimmer—and that the fourteen-day
period in Rule 4(a)(6) should be treated as strictly as the 180-day period in that same Rule. The “limited
opportunity for relief” contemplated by the Rule includes both enumerated periods. Our concerns for
finality and economy and the Rule’s historical function of relieving unfairness in a single factual situation
by providing a set method of relief support this holding. As outer limits, the fourteen-day and 180-day
periods are analogous. As one commentator noted, “The new paragraph (6) is explicit on the [14-day]
point.” David D. Siegel, The Recent (Dec. 1, 1991) Changes in the Federal Rules of Civil Procedure, 142
F.R.D. 359, 379 (1992).
                                                       IV
          As a final matter, we must determine whether the doctrine of the law of the case and the history of
this litigation prevent us from recognizing the jurisdictional defect and thus require us to consider the merits.
As the history above makes clear, there has been a substantial amount of activity in the court of appeals that
No. 04-3262             Bowles v. Russell                                                                  Page 8


could support the petitioner’s view that the merits are properly before us. However, as we discuss below,
this court has never held that jurisdiction is proper in this case. Rather, when the issue of jurisdiction has
been properly before us, we have consistently found it to be lacking.
       The law of the case, like issue preclusion, or collateral estoppel, prevents the relitigation of an issue
once there has been a judgment on the merits. Later disputes concerning that issue are considered
foreclosed in any subsequent suit.
       The doctrine of the law of the case is similar in that it limits relitigation of an issue once it
       has been decided, but the law of the case doctrine is concerned with the extent to which the
       law applied in decisions at various stages of the same litigation becomes the governing
       principle in later stages.
18 Moore’s Federal Practice, § 134.20 (Matthew Bender 3d ed.). “The gist of the [law of the case] doctrine
is that once an appellate court either expressly or by necessary implication decides an issue, the decision
will be binding upon all subsequent proceedings in the same case.” Int’l Union of Operating Eng’rs, Local
Union 103 v. Indiana Const. Corp., 13 F.3d 253, 256 (7th Cir. 1994) (quoting Key v. Sullivan, 925 F.2d
1056, 1060 (7th Cir.1991)); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). “The
law of the case doctrine generally discourages courts from reconsidering determinations that the court made
in an earlier stage of the proceedings.” United States v. Graham, 327 F.3d 460, 464 (6th Cir. 2003)
        Further, the doctrine applies only to issues that have been decided explicitly (or by necessary
implication) by a court. Ibid. A court need not elucidate or explain its decision, but it must “decide[] upon
a rule of law.” Christianson, 486 U.S. at 817; Schiro v. Farley, 510 U.S. 222, 232 (1994) (applying
preclusive effect where issue was “determined by a valid and final judgment”) (emphasis added); Rouse
v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002) (finding an abuse of discretion where law of
the case was applied and, after “careful review,” the issue was never actually decided below); In re Big
Rivers Elec. Corp., 355 F.3d 415, 443 (6th Cir. 2004) (noting that a decision of a court requires an order);
accord Amelkin v. McClure, 330 F.3d 822, 828–29 (6th Cir. 2003). Finally, “we recognize that the law of
the case doctrine is discretionary when applied to a coordinate court or the same court’s own decisions.”
Bowling v. Pfizer, Inc, 132 F.3d 1147, 1150 (6th Cir. 1998) (citing United States v. Todd, 920 F.2d 399, 403
(6th Cir.1990)); See Christianson, 486 U.S. at 817 (acknowledging the limits of the doctrine in situations
of clearly erroneous rulings); In re Kenneth Allen Knight Trust, 303 F.3d 671, 677–78 (6th Cir. 2002)
(doctrine is discretionary when a court reviews its prior erroneous decision); Perillo v. Johnson, 205 F.3d
775, 780–81 (5th Cir. 2000) (doctrine is a matter of judicial discretion rather than judicial power when a
court is reviewing its own prior decision).
         Accordingly, we look to the prior decisions and orders of this court to determine if the issue of
jurisdiction was actually decided in a final judgment. Only the order of April 26, 2004, addresses the issue
of petitioner’s untimely notice of appeal. That order is almost entirely devoid of any language even
suggesting a decision of this court that jurisdiction for this appeal should be sustained. Only the last
sentence, discussed below, could support a positive outcome for the petitioner. The entire discussion of the
order supports its conclusion that the appeal be dismissed. Specifically, the appeal is dismissed as it relates
to the judgment of July 28 and the order of September 9, 2003. Quizzically, however, the order continues
to state, in its last sentence, that the appeal is timely as to the February 10, 2004, ruling.
       However, the only appealable issues decided in the court below were the judgment to deny the
granting of the writ, and the denial of petitioner’s motion to reconsider that judgment. The April 26, 2004,
order of our court explicitly states that there is no jurisdiction with respect to those issues. It isolates the
February 10 ruling extending time to appeal as the sole appealable issue that this court can hear. Yet, when
the merits adjudication is removed from the set of appealable issues, a complete absence of subject matter
remains. Additionally, why would, or could, the petitioner appeal the February order when its outcome was
favorable to him? We leave this question unanswered. We hold that the final sentence in the April 26 order
No. 04-3262             Bowles v. Russell                                                               Page 9


was surplusage, that it added no meaning to the order and, therefore, it cannot be construed as a decision
of this court. Because this court has not made any decision that is contrary to our ruling today, and because
the doctrine of the law of the case is prudential and not jurisdictional, we hold that since the April order is,
where explicable, consistent with our reasoning today, the doctrine of the law of the case is not upset in any
cognizable way.
                                                       V
        We therefore hold that this court is without jurisdiction to consider Bowles’s appeal. Accordingly,
this appeal is DISMISSED.
