Please please let this be my last post about the Donziger cert. petition. I know, I get to choose what I write about, I can stop any time I want. If only it were so! I feel I have to follow this through to the end.
Eagle-eyed reader Philipp Fölsing pointed out to me that after my first post suggesting that the Donziger petition was untimely but before my second post, Donziger filed a motion asking the Court to direct the clerk to file the petition out of time. I wasn’t aware of it because the clerk mistakenly docketed it under the name “Donzinger” instead of “Donziger.” Anyway, in the motion, Donziger’s lawyer, HLS Professor Charles Nesson, does the right thing by taking the blame for the late filing. Everyone makes mistakes, and there’s nothing wrong with asking the court to overlook a mistake so that the client isn’t punished for the lawyer’s error. But when you do that, you should make your best effort to explain the situation correctly to the Court.
Nesson’s explanation is that he knew that the Court had extended the time to file petitions to 150 days, but he did not know that the Court had later rescinded its order. He argues that he filed within 150 days of the date on which the New York Court of Appeals denied Donziger’s motion for reargument on his request for leave to take a discretionary appeal. He seems to be suggesting that if the court had not rescinded its order, the petitioner would have been timely. But the rescission order had a savings provision in it that provided that
in any case in which the relevant lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing was issued prior to July 19, 2021, the deadline to file a petition for a writ of certiorari remains extended to 150 days from the date of that judgment or order.
So if the petition had to be filed within 150 days of the denial of the request for reargument, the rescission of the 150-day order wouldn’t have made the appeal untimely. As I pointed out in the second post, the real problem is that the time began to run when the New York Court of Appeals denied leave to appeal, and whether the rule was 90 days or 150 days, Donziger missed the deadline by a mile. The denial of leave to appeal was on August 13, 2020. One hundred fifty days after that was January 10, 2021. Donziger filed his petition in February 2022, more than a year later.
Anyway, I don’t know that the Court could grant Donziger’s motion even if it wanted to. The ninety-day limit is jurisdictional. The statute, 28 U.S.C. § 2101(c), allows the Court to extend the time by sixty days for good cause shown, which is why the 150-day COVID extension was permissible. I took a quick look, and while I see few examples of individual justices, notably Justice Blackmun, dissenting from a denial of motions to direct the clerk to file a petition out of time, I didn’t find even a single example of the Court granting such a motion.