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Every lawyer’s nightmare � inadvertently missing a court filing deadline � has come true for Roy Englert Jr. Adding to the pain is that the court whose deadline he missed is the Supreme Court, where such mistakes tend to get noticed more than they might elsewhere. But if there is any consolation, it is this: As competitive as the Supreme Court practice is, it is collegial enough that some of Englert’s brothers at the bar have rallied to his side. Former Solicitors General Charles Fried and Seth Waxman have filed a brief asking the Court to clarify its rule that Englert ran afoul of and, in the process, to accept his out-of-time petition. As the brief, written by Fried, notes, “There but for the grace of God go I.” The Court will consider the issue at its Sept. 25 conference. Englert, a veteran Supreme Court practitioner and partner at Washington’s Robbins, Russell, Englert, Orseck & Untereiner, was hired by Northwest Airlines to file a petition challenging a decision by the U.S. Court of Appeals for the 6th Circuit that sided with Spirit Airlines in a long-simmering predatory-pricing dispute. The suit originally filed by Spirit has not gone to trial, but the appeals court decided some significant issues, about what a jury needs to consider, in Spirit’s favor. On April 17 the office of Northwest’s 6th Circuit counsel alerted Robbins Russell that the circuit court had denied a petition for a rehearing of the case. For Englert that meant he had 90 days to file a petition with the Supreme Court. He did just that on July 17, and the case of Northwest Airlines v. Spirit Airlines was given the docket number 06-77. But on July 20 a Supreme Court case analyst in the clerk’s office called Englert with bad news; according to the 6th Circuit, the denial of rehearing was actually issued April 13, not April 17, making the petition to the Supreme Court several days late. Since Englert had not requested an extension during the 90-day period � extensions of up to 60 days are allowed by statute � the petition was deemed out of time. The case was yanked from the docket, meaning the 6th Circuit ruling would stand. Not a good result for Northwest. The next day, Englert filed a motion asking the Court to direct the clerk to accept the petition out of time, an action reported first by Scotusblog, a weblog that focuses on Supreme Court developments. Englert took full responsibility for the error but described it as “classic excusable neglect” that did not prejudice any party in the case. While recognizing that the Court has been strict about enforcing its deadlines, Englert argued that nothing in the relevant statutes precludes parties from seeking an extension after the 90-day deadline has passed. “The Court has the freedom to take into account all circumstances,” Englert argued in the motion, “in exercising its discretion whether to accept the petition, but the Court’s power to do so is beyond reasonable question.” In an interview, Englert says, “This is not a happy moment in my life.” He adds, “I have never missed a court deadline like this in 25 years of practice.” Englert acknowledges that “courts have to have deadlines,” and he understands the clerk’s interest in treating all petitioners equally. “But the Court has been taking an unduly harsh attitude, without Congress saying it has to.” Englert declined to say what Northwest’s reaction to the situation has been, and efforts to obtain a comment from the company were unsuccessful. Spirit’s lawyers also did not return messages, and they have not filed a reply to Englert’s motion � nor are they required to. In the lawsuit, Spirit claims Northwest illegally undercut its ticket prices in the 1990s to drive Spirit out of the Boston and Philadelphia markets. Meanwhile, Englert has sought out some top-drawer amicus curiae help from former solicitors general. Both Fried and Waxman agreed; Kenneth Starr, the only other former SG he asked, did not respond, according to Englert. Fried also argues that the deadline issue “is an open question that should be resolved by the Court itself. So far, it seems to have been decided only by the clerk’s office.” Currently a Harvard Law School professor, Fried says he was glad to write the brief gratis on Englert’s behalf. “I would no sooner charge for it than I would bill my grandson for milk and cookies.” Fried agrees that his brief is an example of the collegiality of the Supreme Court Bar. “Lawyers are professional adversaries and professional friends, and when someone you work with and sometimes work against is in a situation like this, one ought to consider stepping up to the plate,” Fried says. “Collegiality is what makes it a profession, and there’s not enough of it.” Collegiality or no, other high court advocates say that Englert and his amici will have an extremely hard time persuading the Court to relax its rule. The high court views the 90-day rule as a jurisdictional matter, which means that after the 90th day, the Court does not even think it has jurisdiction over a case. “I feel for Roy. It could happen to any of us,” says another high court veteran, who preferred to remain unnamed. “But I don’t see what’s in it for the Court to grant his motion.” But not all is lost for Northwest, even if Englert’s motion fails. The case would go back to lower courts for trial, and on appeal it could return to the Supreme Court, presumably meeting deadlines every step of the way.

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