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 NOTE RESPECTING NOTICE TO OPPOSING PARTY
OF EXTENSION OF TIME FOR FILING GRANTED
BY.ORDERS OF THE JUSTICES.

The accompanying draft phrases an order granting exten~
sion of time to file which extends beyond the form in general use
by including a direction to notify the opposing party that the
time he had computed under statute or rule for a step in his
case to be taken had been enlarged. There is no provision in
present statutes or rules requiring such notice, nor have the
Justices imposed it as a duty upon counsel as an established prac—
tice.

Extension of time to file petitions for certiorari is
provided, as a discretionary power, by 28 USC 2101(c) and by
Federal Criminal Rule 57(b)(2), and contains a jurisdictional
element. Extension of time for filing briefs, rehearing peti—
tions, etc., is regulated by rule and practice and jurisdiction
per se is not involved.

To avoid stirring up the jurisdictional question of
whether a Justice can ”condition” his extension of time, when
granted under statutory or Criminal Rule authority, and to pro—
mulgate a single form which can be used for all the types of
time extension granted, it is suggested that directing counsel
to notify his Opponent rather than conditioning the extension
upon his doing so, may be the way to skirt the possible juris—
dictional challenge.

How soon should the notice be given? Insertion in the
order of a specific time would require consideration of circum—
stances in each case. To use the word "immediately” is to ask
the impossible. "Promptly" is an indefinite word permitting too
much latitude. I have used the phrase "with all possible expe-
dition” to carry the meaning that notice should be given as soon
as it can be effectede

~ Crepley.

January 25, 1950.

 

 SUPREEE COURT OF THE UNITED STATES

DO. , October Term, 19

 

 

ORDER EXTENDING TIEE HI HIE WHICH TO FILE

 

UPOH CONSIDER.TICH of the application of counsel for

I
3

 

IT IS ORDERED that the time for filing

in the above entitled cause

 

be, and it hereby is, extended to and including

, 195 1. The party, or his counsel, obtaining

this order shall notify, with all possible expedition, the
opposing party, or his counsel, of the extension of time granted

hereby.

 

Associate Justice of the Supreme Court
of the United States.

Dated this

day of

 

 A -W\-—" flaw" A~

'95“

January 24, 1950
MEMORANDUM FOR THE COHERENCE.

A new point of practice has turned up in w experience here, which seems
to no of sufficient general importance to bring to the attention of my brethren.
It concerns a desirable procedure for orders extending the time within which to
file a petition for certiorari, or other modes of bringing a review before the
Court.

It seems to me the ordinary period of three months is more than ample
not only for the intrinsic difficulties presented by the preparation of a petition
but also with due regard to the dilator-y habits of our profession. But of course
there are situations where an extension of time must be granted. The situation
which has just been brought to me is in regard to a case decided in the First
Circuit. This time it was counsel'for respondent who asked for an extension, and
the ground he gave was that by long prearrangement he was due to sail for Europe
the day after his time was up, but he had assumed that since three months had
elapsed after he obtained his favorable judgment no petition for review would be
sought for he had not been notified of any extension of time for his opponent.
Inquiry on my part revealed tmt such extensions for the filing of peti-_
tions are granted without any mechanism for bringing notice of it to the opposing
party. Here is a gap that 1‘ think should be filled. The Clerk and I have had
full discussion of the matter and at my request he has drawn an order which seems
to me admirably suited to meet the situation that has been revealed, and I suggest
the desirability of its adoption as the formal order for submission to us upon
application for extending the time within which'to file pleadings, as it were, in
this Court. Hérewith is attached, a copy of this order and the Clerk's note ex-
plaining the problems which he sought to meet - and I think he has done so admir-

ably - in the proposed draft.

F. F.

 A“ “”9"?” '77"”“'" V ‘

January-30, 1950

MEMORANDUM FOR THE CONFERENCE:

On January 2h, Justice Frankfurter circulated a memorandum relative
to extension of time within which to file petition for certiorari or other
modes of bringing review of a case before the Court. With the memorandum,
he transmitted a statement from the Clerk dated January 23, 1950, together
with a suggested order extending time within which to file, placing upon
the party seeking the extension the responsibility of notifying "with all
possible expedition, the opposing party, or his counsel, of the extension
of time granted hereby." Justice Frankfurter thinks that this order meets
the situation he has in mind, and suggests its adoption as a formal
order in extending time within which to file "pleadings, as it were, in
this Court."

It doesn't strike me that this does the job. In my View, the motion
for the extension should state that notice that the motion for extension
will be made has been brought to the attention of the opposing party, or
his counsel. In that way, they will be put on notice, and they can guard
their own interest rather than learn about the granting of the motion for
extension subsequent to its entrance and notification to the party making
the motion, and then his notification of the extension of time granted by
the Justice to the opposing party or counsel. The time element, particularly
in cases coming from far distant points in the United States, territories,
or insular possessions may prevent knowledge of the granting of the motion
until the time has elapsed in which the opposing party may file his motion
for an extension of time within which he may file petition for certiorari
or other modes for bringing a review before this Court.

It would seem to me that the Rules, both Civil and Criminal, should
be amended, requiring the moving party to show notice to the adversary party
that he is filing a motion. Then, with compliance with the rule shown, the
last sentence of the proposed order might well be deleted, or the order
might contain, in lieu of the last sentence, the following:

"It appears that the or his counsel, notified ’

.___.______________p
the , or his counsel, on l95_, that
o the motion for the extension of time would be made."

Chief Justice

 “Mons
- or
“NET JUsncTEHE February 1, 1950.

MEMORANDUM FOR THE CONFERENCE DEALING WITH EXTENSION OF TIME.

The main purpose of my memorandum of January 24th regarding the granting
of extension of time for filing a petition for certiorari, etc., was to bring to
the attention of the brethren a gap disclosed by an application to me for exten-
sion of time to file a repLy in opposition to a petition for certiorari. It is a
case from the First Circuit, No. 313 Misc., figy§;_v. 5919;. I welcome the memo-
randum from the Chief Justice in that it recognizes that this is a problem calling
for consideration.
His suggestion for meeting the problem arouses spontaneous sympathy in me

because I at first thought that the Solution now proposed by him was the way to
meet the situation when I first encountered it. I, too, thought that the remedy
was to require notice to be given of an application for extension of time. That,
of course, would turn what has always been an 2; EEEEE application into an adversary
proceeding. Reflection, informed by a talk with the Clerk, persuaded me that practi-
cal considerations preclude the desirability of such a change, and for these reasons:

1. If notice is to serve a purpose an application for time extension presented
to one of us would, in the absence of dependable waiver, require withholding of
action pending presentation of opposition until the final day upon which we could
act under statute or Rule. No compensating interest of justice appears to justify
such selfLimposed new burden on the Justices.

2. Many applications for time extension are presented close to the statutory
or Rule deadline. Requirement of notice of the motion to opposing counsel, as a
condition precedent to its presentation, would frequently result in receipt of
notice after the expiration of time within which action must be taken. This unde-
dirable result would, of course, vary with the distance of eounsels' residence from
the Court and from each other. The requirement may well confuse and annoy opposing
counsel who, justifiably, would resent that it was too late to exercise the implied
right to oppose the motion. Protests, now practically unknown to the accepted 2;
pggtg practice, would be encouraged.

3. Many applications for extensions come from indigent litigants and prisoners.
Such movants know little about rules on.practice. Great leniency in waiving tech—

nical requirements in their cases, generally handled 239 pg, is shown. That a

 _ 2 _

notice of motion requirement would increase indulgence of informality is not so
pertinent as the encouragement it would give to protests by the opponent, usually
the Government or a State authority. _More important is the hardship imposed upon
prisoners who, under prison reguLations, are restricted in the number of communica-
tiens they may send. GonceiVably separate communications to give notice and trans-
mit their motion to us may exceed a prisoner's quota and thereby raise, at the
least, embarrassing questions. And we cannot alter penal institution administrative
rules at the unknown place where the situation may arise. .

4. The inappropriateness of the requirement of notice of motion, implying the
right to oppose, is emphasized by a special class of recurring situations, g,g.,
where a large record filed with a certiorari petition must be printed. If the work
twould require more than.1he 10 days fixed for service under Rule 38, par. 3, counsel
are notified and submit a pgg.§ggma application to extend the time to 10 days beyond
the indefinite date such printing is performed, to meet an internal mechanical con-
dition. Here gg‘pggtg action is feasible and notice to opponent of the extension
granted, as proposed in my memorandum, affords ample protection.

5. Regulation of the discretionary power to extend time by Rule, binding Justices
and counsel alike, would needlessly restrict our present latitude in varying the
terms of our orders to the precise situation presented in individual cases. In the
absence of statutory provision, the flexible ability to deal with matters presented

in Chambers without the restriction of prescribed Rule should, I submit, be pre-

served.

F. F.

 February 3, 195°
MEMORANDUM FOR THE CONFERENCE:
Reg Extensions of Time

The initial memorandum, circulated by Justice Frankfurter on January 2h,
dealt with an application which came to him as Circuit Justice for the First
Circuit in No. 313 Misc., Egzal v. figzgl, in which the respondent desired an .
extension of time to file a reply'in opposition to a petition ior certiorari.
Counsel for the respondent had booked passage for a trip to Europe following
the expiration of the statutory period for the filing, and desired additional
time in which to file his opposition to the petition for certiorari.

The memorandum brought to my mind the problem of protecting the right
of a litigant who, though succeeding in part in the lower court, would desire
to file a cross petition for certiorari only in the event his adversary filed
petition for certiorari. There have been a number of instances since I here
been with you in which cross petitions have been filed, and urged only in
the event that the petition for certiorari would be granted.

It occurred to me that the present Rules protected the right of the
respondent in the case to which Justice Frankfurter’s attention was called as
it is shown by the happenings after the extension of time to file the petition.
In this case, respondent filed a motion for extension of time in which to file

opposition, and it was granted. He lost no rights.

 -2—
I start off on the basic premise that any proceeding here is an adversary

one. An adversary party should know what is going on in his case, and that

action eg parte should only be taken by the Court or a Circuit Justice in

extraordinary circumstances to insure justice to a litigant. To place the
responsibility for protecting the rights of an adversary upon counsel who
presents a motion for extension to file a petition after the action of a Cir-
cuit Justice is not my‘notion of the protection that an adversary party should
have. It seems to me that notice of the motion to the adversary party is
necessary to protect his interesta

Suppose that the respondent in Justice Frantfurterxs case had desired to
file a cross petition; that petitioner‘s motion for an extension was properly
granted with the language contained in the proposed order; thereupon counsel
for the petitioner, either advertently or inadvertently, failed to inform the
respondent of the extension. 'With the elapse of the statutory period in which
to file a cross petition, the respondent would be out of lucke

In Justice Frenkfnrterls caseg and in all ordinaiy'cases, it seems to
me that the present Ru.u; ?“ satisfactoraa When the petitioner files his
petition for certiorari witnin the extended period, the respondent is given,
under Rule 38, par. 3, 20 days (for resoondents located in the Far west and
outlying possession e5 day ) after receiving notice of the filing, copy of

the petition, etc., in which to file brief in oppositiono If this period

 

 of time is not sufficient, because of a trip to Europe or any other proper
reason, he may) as respondent did in the §~X§£ ase, file an application for
extension of time in which to fileo Bututhis Rule does not meet the case I
_was talking about in my memorandum when a respondent would file a cross
petition in the event his adversary filed a petition for certiorario

I do not think that there is any necessity to change the orders for
the ordinary case, but I do think it iS‘WOTthy of consideration to think
about changing the Rules so that one party may not secure g§ pggtg a final
advantage over his adversary.

Referring to Justice Frankfurter‘s Item No. l in the memorandum dated

February 1, I do not think that withholding of the action pending presentation

of Opposition until the final date on which we could act would really consti-

tute a significant new burden on the Justices, and if it did, I think there
would be a compensating interest of justice to justify it° Counsel for the
respondent might well feel that action gg BEEEE had not been in the interest
of justice to his client if he'were barred from filing a cross petition.

I well understand that it can be said that he could file his petition for
certiorari even though.the petitioner did not, but that is requiring him

to take a step that he might not feel was in the best interest of his client.
His judgment belOW'may not have been all that he desired, but his lient's

interests would have been partially satisfied and the litigation terminated,

if petitioner does not file petition for certicreri9

 

 Item No° 2 — I cannot quite agree with.this line of reasoning. If the

petitioner delays filing of a motion for extension up until the expiration date,

without sufficient time to notify his adversary, why should his rights be pre-

ferred over the rights of an adversary who might desire to file a cross

petition? The petitioner has pu*sued the dilatory tactics, and in the case

stated has done nothing during almost all the period allowed him under the

statute. The distance that the litigants are apart could be spanned easily

by telegram.or telephone if the mails were too slow; Justice Frankfurter

states that the requirement of notice of the motion might "well confuse and

annoy opposing counsel who, justifiably, would resent that it was too late to

exercise the implied right to oppose the motion."

In my experience, both at the bench and bar, the giving of notice of the

filing of a motion or pleading is an accepted practice when required, and,

generally speaking, a courtesr when not required. I well know the resentment

a respondent would have if the delay in filing of the petition for certiorari,

occasioned by an extension of time in which to file, and of which he had no
notice, caused.him to lose opportunity to file cross petition.

Item No. 2_— Justice Frankfurter‘s latest memorandum gives me cause to
pause. I discussed this situation with Justice Frankfurter prior to the cir-
culation of my memorandum. I called to his attention the problem that any

change in Rule or practice should consider well the case of the indigent

liti ants and risoners roceedinc ro seo I acree with What Justice
5 be ____ e

 

 Frankfurter says in regard to such persons confined and the restrictions
upon them making it difficult for them to give the notice prior to the filing
of the motion for extension, but it is not in any wise different from the
notice that is required in the proposed order suggested by Justice Frankfurterc
Ordinarily, so far as prisoners are involved; cross petitions are not in
the pictureo

Item Noe h m I may be wrong in my interpretation of the discussion here»
under as it applies to the issue which I present to the Conferencee As I
understand it, Rule 38, para 3 deals with the notice of tie filing of the
petition and involves the printing problem” Here the petition has been filed
within the proper period. The respondent has an obligation to know whether it
is filed. The Rule requires service "by the petitioner on counsel for the
respondent within ten days after the filing (unless enlarged by the court,

or a ‘ustice thereof when the court is not in session‘ and due roof of
19

service shall be filed with the Clerk.” It doesn‘t deai with the filing of

n

a motion for extension in which to iile the petition for certiorario In my
View, it has nothing to do with the problem which I think should be considered.
If there is a large record filed.nith the certioreri petition to be printed, and
the printing will “reqnire more than the 10 days fixed for service under Rule 38,
para 3, counsel are notified and submit a pgg forms application to extend the
time to 10 days beyond the indefinite Ltve such printing is performed, to meet

an internal mechanical condition."

 

 Item No. 5 n I realize that discretionary ower is'a wonderfully neces-
._____i__.._ P

sary attribute of the work of courts and justices. I recognize the attitude
toward the restriction of discretionary power, but I am thinking of the rights
of litigants to know that application has been made, and to have knowledge
that the exercise of that discretionary power is being called into play, beu
fore its exercise, so that he may be able to protect his rights, which are just
as important as the rights of a petitionero

I cannot agree that "notice to opponent of the extension granted", as
proposed in Justice Frankfurter's memorandum, affords ample protection. The
notice that is given by the litigant with extension granted is not what I

think an adversary party is entitled to know of his opponent's action in the

case, or the court's action in the cases

Chief Justice.

 

 RECEOVED

Fee ll 9 33 AM '50

CHAMBERS OF THE
GH'EFJUST'GE February 3, 1950.;

MEMORANDUM FOR THE CONFERENCE RE EXTENSION OF TIME»

This memorandum is circulated not for the pleasure of arguing but to aid
if possible in dealing with questions to which my original memorandum has given
rise.

1. Plainly enough, I lacked clarity in bringing to the Conference's attention
the situation of whieh the applioation in 391a; v. ng§;_made me aware. In that
case the respondent filed a motion for an extension of time in which to file his
brief in opposition» The ground of his application was that he had not known un=
til the last minute that the petitioner”s time had been extended and he had sen
sumed that the judgment of the Massachusetts Supreme Judicial Court would be aea
eepted. I was not worrying about the respondent. Of course he was entitled to
an extension. There was no difficulty in giving him the extension to which he
was entitled. The train of thought that the application started in my mind was

the undesirability of dragging out needlessly the bringing of cases to this Court

when Congress has given the generous time of three months for filing petitions
' further
with an appropriate leeway of extending the time for just cause for sixty/days.

It struck me as desirable to plug a hole whereby any extension on behalf of a
petitioner would not require further extension for the respondent because he had
not been advised of the extension. I thought a and still think a that a practical
way of dealing with the interest which alone was in my mind, namely the expeditious
administration of justice, was a formal provision in our order for extension putm
ting upon petitioner's counsel the duty of giving notice of such extension to the
respondent.

2. The problem that I stated in not too clear a fashion brought a totally dife
ferent problem to the Chief Justice's mind, namely, the effect of an extension of
petitioner‘s time without respondent‘s knowledge of it on a respondent with a con=
tingent interest in filing a crossnpetitiona I had not thought of that situation.
I quite agree that that is a lacuna which should be filled. Statistioally Spea“c
ing I do not think it is a very recurring problem. The number of total cross»
petitions that are filed in the Court is extremelv small and the number of situae

metfs‘é 6-9.
tions where a cross—petition awaits the filing of a petition is Small to the van=

 

 ishing point, However; I do think now that the situation has been disclosed
it should be mete
I venture to suggest that the easy way to meet it is to provide thatyany

extension of time to file oertiorarl will automatically extend the statutory period
to all parties to the litigation0

39 I am bound to adhere to the View that every action taken by a Justice in
chambers ought not to be treated as an adversary proceeding, with all the oonse~
quences of an adversary prooeeding. I do not think that everything that is should
remain so. But I do suggest that there in ad impressive reason for the practice
that we have inherited whereby applications such as those for extension of time
do not become adversary proceedingsa

A. I circulated my original memorandum because I thought that my brethren who
are more frequently called upon to deal with such applications might have the same

kind of a problem as I had in Bola; v. Royaly and might deem uniformity of treatm

ment desirable. But if the upshot of that suggestion is to introduce the adversary

proceeding in the granting of extension of time I shall indeed rue the day I wrote

that memoranduma