Time-Traveling Students

Justices Gorsuch and Barrett disagree about the nature of extensions for students.


On Friday, the Court decided HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Assn. Justice Gorsuch wrote the majority opinion, which was joined by Chief Justice Roberts, and Justices Thomas, Breyer, Alito, and Kavanaugh. Justice Barrett wrote her first dissent, which was joined by Justices Kagan and Sotomayor. The case presented a fairly technical question: Could the government grant a refinery an "extension" to a hardship exemption if the refinery's exemption had already lapsed? In other words, must an exemption currently be in place for that exemption to be extended? The majority answered the question no. The dissent answered the question yes.

I don't have strong thoughts on which opinion had the better interpretations of the statute. Both readings strike me as plausible. I did enjoy a back-and-forth between Justices Gorsuch and Barrett that is very familiar to all professors: what is the nature of an extension for students.

First, Justice Gorsuch explains that a professor can grant a student an extension, even if the original deadline had already passed:

It is entirely natural—and consistent with ordinary usage—to seek an "extension" of time even after some lapse. Think of the forgetful student who asks for an"extension" for a term paper after the deadline has passed, the tenant who does the same after overstaying his lease, or parties who negotiate an "extension" of a contract after its expiration. 

I'll admit, I would never consider granting an extension to a student after the deadline lapsed. Most deadlines are posted well in advance. If a student has some last-minute emergency, I would expect an email before the deadline passes. And generally, students ask for an extension at the eleventh hour. But missing the deadline, outright, would be the end of the matter. Lawyers who miss a filing deadline by one minute can forfeit a claim. These harsh rules matter. Perhaps Professor Gorsuch was more permissive. I take it that Professor Barrett was not.

Justice Barrett suggests that granting an extension, after the deadline has lapsed, is not actually extension. Rather, the professor is, in effect, retroactively modifying the due date:

The hypothetical that the Court offers to refute this critique—a teacher authorizing a student who missed a Friday deadline to turn in a paper between 8 a.m. and 9 a.m. on Monday—gets it nowhere. It is either an extension of the deadline to 9 a.m. on Monday, in which case it operates like the other deadline extensions I have described, with the teacher simply specifying when she will be present to receive the paper. Or it is an example of something other than a deadline extension—like the start of an entirely new window for timely conduct—in which case it is inapposite.

Justice Gorsuch responds with some Latin. Justice Barrett's counter amounts to a nunc pro tunc.

Beyond that, the dissent counters by attempting to recast all these varied examples of temporal extensions after interruption. It imagines, for example, that when a teacher extends a paper deadline after a lapse, that act of grace always operates like a nunc pro tunc judicial decree—retroactively deeming the time originally allotted as now extending continuously to some new and future due date. But no one thinks extensions always work this way. As the COVID-19 statutes illustrate, a previously lapsed benefit can and sometimes is "extended" for a new period without any retroactive effect. Likewise, if a student misses the 4p.m. deadline on Friday, his teacher may extend the deadline by authorizing him to hand in his paper the following Monday between 8 a.m. and 9 a.m. Besides, even looking to the nunc pro tunc analogy, what does it prove? It cannot change the fact that, absent time travel, a lapse or interruption has occurred. The student cannot go back in time and turn in his paper when it was originally due on Friday afternoon. His lapse may be forgiven or overlooked, maybe even with a Latin term invoked in the process, but none of that means a break in continuity, a lapse, or an interruption never happened.

Time-traveling law students! Of course, if a student could travel back in time, he would not have missed the deadline in the first place. His future self would have given his past-self the completed project. Sort of like Bill and Ted's Excellent Adventure.

I very much enjoyed this exchange.

NEXT: Brandishing Gun at Home at Intruders, Who Haven’t Identified Themselves as Police Officers, Isn’t a Crime

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  1. Extensions should be granted on the merits. Is that hard, lawyer dipshits?

    1. In German law, the signature must the last writing. Put a date below it, and the document is void. Is that level of gotcha intelligent, lawyer dipshits? All gotchas, all nitpicking is lawyer bad faith, and if upheld, deserves self help as a remedy. Start with the scumbag judge. This continues in the witch hunting of President Trump. At some point, patriots will have enough, and just visit self help on the lawyer scumbags, especially the partisan judges allowing this bad faith game of harassment. Bad faith means, you are nitpicking the tax return, but the aim is to prevent his running in 2024.

  2. In a case like this I'd rather see a short and unanimous decision saying that the law is ambiguous and they have to pick an answer in the name of uniformity. Either answer.

    1. That reply is to promote lawyer rent seeking procedure. It is in bad faith, to steal money.

  3. The Appellate Division in New York won’t grant a motion to extend the time to perfect an appeal if the motion was made after the deadline passed. It’s an unwritten rule.

    1. Didn't you say a week or two back that only suckers and new lawyers abide by deadlines in NY?

      1. I was talking about court-imposed deadlines. The time to perfect is in the regulations. Even then, it's not absolute; you can get an extension. But that particular court has decided that they won't grant one unless you make the motion while the deadline is still looming. Just like you can't get an adjournment for a return date if you apply for it after the return date's passed.

        1. P.S. Also I was talking about the trial court, where blown "deadlines" get excused again and again. The Appellate Division is a different story.

  4. I will admit I'm biased, but I have several thoughts on this.

    First, renewable fuel mandates greatly increase emissions. We've known this for some time from multiple sources. Ethanol and Biodiesel are just worse for the environment. It's "greenwashed" energy since more oil is used for the creation and blending of these fuels than is displaced by them. This is a bad requirement that needs to be removed in the first place.

    Secondly, the people suing are companies that Holly will be forced to purchase products from. That seems to me to be a horrible precedent, that the courts force a company to purchase a product at the demand of the provider.

    Thirdly, the original exemption was granted for a reason. This reason doesn't cease to exist because of a paperwork error.

    Finally, the comparisons here are inaccurate. Missing an extension deadline is more comparable to being late to renew your driver's license than missing a term paper or appeal. If you note, the DMV not only allows you to renew your license, but backdates your renewal to the date you should have renewed.

    I have to say that I think the Supremes made the right choice here.

  5. But missing the deadline, outright, would be the end of the matter.

    Law student is on his way to submit his paper Friday afternoon, in order to meet the 5PM deadline. He is in an accident and is taken to the hospital, and can't reach Professor Blackman until Saturday morning, when he is released and goes home.

    Tough luck?

    1. I've known students with much worse excuses being granted a second chance to take exams they missed, much less turn in papers.

      Now this wasn't in law school, but for engineering. We care more about results than paperwork

    2. As I understand the ED-OCR rulings, even in Region 1 the institution would be on the hook for the OCR complaint -- although what kind of a-hole professor would do something like this?

      1. what kind of a-hole professor would do something like this?

        Josh Blackman, by his own account?

      2. As I understand the ED-OCR rulings,

        Which is to say, not at all. WTF are you talking about? What "OCR complaint"?

  6. I dont know, I mean I've been granted extensions past the due date. One time I was building a server system in CS and my partner bailed so I had to establish it myself and I thought I had everything working and ... it crashed. 10 minutes before the deadline. I spent the next 10 minutes panicking and after the deadline explained my situation to the grad lab head who was very understanding as he was a student himself and granted an extension to finish it.

    Yeah there is a line, you cant a month later ask for an extension, but the word "extension" doesn't automatically demarcate that line.

    Even from a pure textualist standpoint, it doesn't really work, and from a more pragmatic standpoint it certainly doesn't work to say otherwise. I am guessing that is why Breyer did not sign on.

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