SOUTER, J., DISSENTING
BOWLES V. RUSSELL
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-5306
KEITH BOWLES, PETITIONER
v. HARRY RUSSELL,
WARDEN
on writ of certiorari to the united states court of
appeals for the sixth circuit
[June 14, 2007]
Justice Souter, with whom Justice
Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.
The District Court told
petitioner Keith Bowles that his notice of appeal was due on
February 27, 2004. He filed a notice of appeal on February 26, only
to be told that he was too late because his deadline had actually
been February 24. It is intolerable for the judicial system to
treat people this way, and there is not even a technical
justification for condoning this bait and switch. I respectfully
dissent.
I
“ ‘Jurisdiction,’ ” we
have warned several times in the last decade, “ ‘is a word of
many, too many, meanings.’ ”
Steel Co. v.
Citizens for Better Environment,
523 U. S. 83, 90 (1998)
(quoting
United States v.
Vanness, 85 F. 3d
661, 663, n. 2 (CADC 1996));
Kontrick v.
Ryan,
540 U. S. 443, 454 (2004) (quoting
Steel Co.);
Arbaugh v.
Y & H Corp.,
546 U. S. 500, 510 (2006) (quoting
Steel Co.);
Rockwell Int’l Corp. v.
United
States, 549 U. S. ___, ___ (2007) (slip op., at 9) (quoting
Steel Co.). This variety of meaning has insidiously
tempted courts, this one included, to engage in “less than
meticulous,”
Kontrick,
supra, at 454, sometimes
even “profligate … use of the term,”
Arbaugh,
supra, at 510.
In recent years, however, we have
tried to clean up our language, and until today we have been
avoiding the erroneous jurisdictional conclusions that flow from
indiscriminate use of the ambiguous word. Thus, although we used to
call the sort of time limit at issue here “mandatory and
jurisdictional,”
United States v.
Robinson,
361 U. S. 220, 229 (1960), we have
recently and repeatedly corrected that designation as a misuse of
the “jurisdiction” label.
Arbaugh,
supra, at 510
(citing
Robinson as an example of improper use of the term
“jurisdiction”);
Eberhart v.
United States,
546 U. S. 12, 17–18 (2005)
(per
curiam) (same);
Kontrick,
supra, at 454
(same).
But one would never guess this from reading
the Court’s opinion in this case, which suddenly restores
Robinson’s indiscriminate use of the “mandatory and
jurisdictional” label to good law in the face of three unanimous
repudiations of
Robinson’s error. See
ante, at 4.
This is puzzling, the more so because our recent (and, I repeat,
unanimous) efforts to confine jurisdictional rulings to
jurisdiction proper were obviously sound, and the majority makes no
attempt to show they were not.[
Footnote 1]
The stakes are high in treating time limits as
jurisdictional. While a mandatory but nonjurisdictional limit is
enforceable at the insistence of a party claiming its benefit or by
a judge concerned with moving the docket, it may be waived or
mitigated in exercising reasonable equitable discretion. But if a
limit is taken to be jurisdictional, waiver becomes impossible,
meritorious excuse irrelevant (unless the statute so provides), and
sU. S.onte consideration in the courts of appeals
mandatory, see
Arbaugh,
supra, at 514.[
Footnote 2] As the Court recognizes,
ante, at 5–6, this is no way to regard time limits set out
in a court rule rather than a statute, see
Kontrick,
supra, at 452 (“Only Congress may determine a lower
federal court’s subject-matter jurisdiction”). But neither is
jurisdictional treatment automatic when a time limit is statutory,
as it is in this case. Generally speaking, limits on the reach of
federal statutes, even nontemporal ones, are only jurisdictional if
Congress says so: “when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should treat the
restriction as nonjurisdictional in character.”
Arbaugh,
546 U. S., at 516. Thus, we have held “that time prescriptions,
however emphatic, ‘are not properly typed
“jurisdictional,” ’ ”
id., at 510 (quoting
Scarborough v.
Principi,
541 U. S. 401, 414
(2004)), absent some jurisdictional designation by Congress.
Congress put no jurisdictional tag on the time limit here.[
Footnote 3]
The doctrinal underpinning of this recently
repeated view was set out in
Kontrick: “the label
‘jurisdictional’ [is appropriate] not for claim-processing rules,
but only for prescriptions delineating the classes of cases
(subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court’s adjudicatory authority.” 540
U. S., at 455. A filing deadline is the paradigm of a
claim-processing rule, not of a delineation of cases that federal
courts may hear, and so it falls outside the class of limitations
on subject matter jurisdiction unless Congress says
otherwise.[
Footnote 4]
The time limit at issue here, far from
defining the set of cases that may be adjudicated, is much more
like a statute of limitations, which provides an affirmative
defense, see Fed. Rule Civ. Proc. 8(c), and is not jurisdictional,
Day v.
McDonough,
547 U. S. 198, 205
(2006). Statutes of limitations may thus be waived,
id.,
at 207–208, or excused by rules, such as equitable tolling, that
alleviate hardship and unfairness, see
Irwin v.
Department of Veterans Affairs,
498 U. S. 89, 95–96
(1990).
Consistent with the traditional view of
statutes of limitations, and the carefully limited concept of
jurisdiction explained in
Arbaugh,
Eberhart, and
Kontrick, an exception to the time limit in 28 U.
S. C. §2107(c) should be available when there is a good
justification for one, for reasons we recognized years ago. In
Harris Truck Lines, Inc. v.
Cherry Meat Packers,
Inc.,
371 U. S.
215, 217 (1962)
(per curiam), and
Thompson v.
INS,
375 U.
S. 384, 387 (1964)
(per curiam), we found that “unique
circumstances” excused failures to comply with the time limit. In
fact, much like this case,
Harris and
Thompson
involved district court errors that misled litigants into believing
they had more time to file notices of appeal than a statute
actually provided. Thus, even back when we thoughtlessly called
time limits jurisdictional, we did not actually treat them as
beyond exemption to the point of shrugging at the inequity of
penalizing a party for relying on what a federal judge had said to
him. Since we did not dishonor reasonable reliance on a judge’s
official word back in the days when we uncritically had a
jurisdictional reason to be unfair, it is unsupportable to dishonor
it now, after repeatedly disavowing any such jurisdictional
justification that would apply to the 14-day time limit of
§2107(c).
The majority avoids clashing with
Harris and
Thompson by overruling them on the
ground of their “slumber,”
ante, at 9, and inconsistency
with a time-limit-as-jurisdictional rule.[
Footnote 5] But eliminating those precedents
underscores what has become the principal question of this case:
why does today’s majority refuse to come to terms with the steady
stream of unanimous statements from this Court in the past four
years, culminating in
Arbaugh’s summary a year ago? The
majority begs this question by refusing to confront what we have
said: “in recent decisions, we have clarified that time
prescriptions, however emphatic, ‘are not properly typed
“jurisdictional.” ’ ”
Arbaugh, 546 U. S., at 510
(quoting
Scarborough, 541 U. S., at 414). This statement
of the Court, and those preceding it for which it stands as a
summation, cannot be dismissed as “some dicta,”
ante, at
4, n. 2, and cannot be ignored on the ground that some of them
were made in cases where the challenged restriction was not a time
limit, see
ante, at 6. By its refusal to come to grips
with our considered statements of law the majority leaves the Court
incoherent.
In ruling that Bowles cannot depend on the
word of a District Court Judge, the Court demonstrates that no one
may depend on the recent, repeated, and unanimous statements of all
participating Justices of this Court. Yet more incongruously, all
of these pronouncements by the Court, along with two of our
cases,[
Footnote 6] are
jettisoned in a ruling for which the leading justification is
stare decisis, see
ante, at 4 (“This Court has
long held …”).
II
We have the authority to
recognize an equitable exception to the 14-day limit, and we should
do that here, as it certainly seems reasonable to rely on an order
from a federal judge.[
Footnote
7] Bowles, though, does not have to convince us as a matter of
first impression that his reliance was justified, for we only have
to look as far as
Thompson to know that he ought to
prevail. There, the would-be appellant, Thompson, had filed
post-trial motions 12 days after the District Court’s final order.
Although the rules said they should have been filed within 10, Fed.
Rules Civ. Proc. 52(b) and 59(b) (1964), the trial court
nonetheless had “specifically declared that the ‘motion for a new
trial’ was made ‘in ample time.’ ”
Thompson, 375 U.
S., at 385. Thompson relied on that statement in filing a notice of
appeal within 60 days of the denial of the post-trial motions but
not within 60 days of entry of the original judgment. Only timely
post-trial motions affected the 60-day time limit for filing a
notice of appeal, Rule 73(a) (1964), so
the Court of
Appeals held the appeal untimely. We vacated because Thompson
“relied on the statement of the District Court and filed the appeal
within the assumedly new deadline but beyond the old deadline.”
Id., at 387.
Thompson
should control. In that case, and this one, the untimely filing of
a notice of appeal resulted from reliance on an error by a district
court, an error that caused no evident prejudice to the other
party. Actually, there is one difference between Thompson
and this case: Thompson filed his post-trial motions late and the
District Court was mistaken when it said they were timely; here,
the District Court made the error out of the blue, not on top of
any mistake by Bowles, who then filed his notice of appeal by the
specific date the District Court had declared timely. If anything,
this distinction ought to work in Bowles’s favor. Why should we
have rewarded Thompson, who introduced the error, but now punish
Bowles, who merely trusted the District Court’s statement?[Footnote 8]
Under Thompson, it would
be no answer to say that Bowles’s trust was unreasonable because
the 14-day limit was clear and counsel should have checked the
judge’s arithmetic. The 10-day limit on post-trial motions was no
less pellucid in Thompson, which came out the other way.
And what is more, counsel here could not have uncovered the court’s
error simply by counting off the days on a calendar. Federal Rule
of Appellate Procedure 4(a)(6) allows a party to file a notice of
appeal within 14 days of “the date when [the district court’s]
order to reopen is entered.” See also 28 U. S. C. §2107(c)(2)
(allowing reopening for “14 days from the date of entry”). The
District Court’s order was dated February 10, 2004, which reveals
the date the judge signed it but not necessarily the date on which
the order was entered. Bowles’s lawyer therefore could not tell
from reading the order, which he received by mail, whether it was
entered the day it was signed. Nor is the possibility of delayed
entry merely theoretical: the District Court’s original judgment in
this case, dated July 10, 2003, was not entered until July 28. See
App. 11 (District Court docket). According to Bowles’s lawyer,
electronic access to the docket was unavailable at the time, so to
learn when the order was actually entered he would have had to call
or go to the courthouse and check. See Tr. of Oral Arg. 56–57.
Surely this is more than equity demands, and unless every statement
by a federal court is to be tagged with the warning “Beware of the
Judge,” Bowles’s lawyer had no obligation to go behind the terms of
the order he received.
I have to admit that Bowles’s
counsel probably did not think the order might have been entered on
a different day from the day it was signed. He probably just
trusted that the date given was correct, and there was nothing
unreasonable in so trusting. The other side let the order pass
without objection, either not caring enough to make a fuss or not
even noticing the discrepancy; the mistake of a few days was
probably not enough to ring the alarm bell to send either lawyer to
his copy of the federal rules and then off to the courthouse to
check the docket.[Footnote 9]
This would be a different case if the year were wrong on the
District Court’s order, or if opposing counsel had flagged the
error. But on the actual facts, it was reasonable to rely on a
facially plausible date provided by a federal judge.
I would vacate the decision of the
Court of Appeals and remand for consideration of the
merits.
Footnote 1
The Court thinks my fellow
dissenters and I are forgetful of an opinion I wrote and the others
joined in 2003, which referred to the 30-day rule of 28 U.
S. C. §2107(a) as a jurisdictional time limit. See
ante, at 5 (quoting Barnhart v. Peabody Coal
Co., 537 U. S.
149, 160, n. 6 (2003)). But that reference in Barnhart
was a perfect example of the confusion of the mandatory and the
jurisdictional that the entire Court has spent the past four years
repudiating in Arbaugh, Eberhart, and
Kontrick. My fellow dissenters and I believe that the
Court was right to correct its course; the majority, however, will
not even admit that we deliberately changed course, let alone
explain why it is now changing course again.
Footnote 2
The requirement that courts of
appeals raise jurisdictional issues sU. S.onte reveals
further ill effects of today’s decision. Under §2107(c), “[t]he
district court may … extend the time for appeal upon a showing of
excusable neglect or good cause.” By the Court’s logic, if a
district court grants such an extension, the extension’s propriety
is subject to mandatory sU. S.onte review in the court of
appeals, even if the extension was unopposed throughout, and upon
finding error the court of appeals must dismiss the appeal. I see
no more justification for such a rule than reason to suspect
Congress meant to create it.
Footnote 3
The majority answers that a
footnote of our unanimous opinion in Kontrick v.
Ryan, 540 U. S. 443 (2004), used §2107(a) as
an illustration of a jurisdictional time limit. Ante, at 6
(“[W]e noted that §2107 contains the type of statutory time
constraints that would limit a court’s jurisdiction. 540 U. S., at
453, and n. 8”). What the majority overlooks, however, are the
post-Kontrick cases showing that §2107(a) can no longer be
seen as an example of a jurisdictional time limit. The
jurisdictional character of the 30- (or 60)-day time limit for
filing notices of appeal under the present §2107(a) was first
pronounced by this Court in Browder v. Director, Dept.
of Corrections of Ill., 434 U. S. 257 (1978).
But in that respect Browder was undercut by
Eberhart v. United States, 546 U. S. 12 (2005) (per
curiam), decided after Kontrick. Eberhart
cited Browder (along with several of the other cases on
which the Court now relies) as an example of the basic error of
confusing mandatory time limits with jurisdictional limitations, a
confusion for which United States v. Robinson,
361 U. S. 220 (1960), was responsible.
Compare ante, at 4 (citing Browder,
Griggs v. Provident Consumer Discount Co.,
459 U. S. 56
(1982) (per curiam), and Hohn v. United
States, 524 U.
S. 236 (1998)), with Eberhart, supra, at
17–18 (citing those cases as examples of the confusion caused by
Robinson’s imprecise language). Eberhart was
followed four months later by Arbaugh v. Y & H
Corp., 546 U. S. 500 (2006), which summarized
the body of recent decisions in which the Court “clarified that
time prescriptions, however emphatic, are not properly typed
jurisdictional,” id., at 510 (internal quotation marks
omitted). This unanimous statement of all Members of the Court
participating in the case eliminated the option of continuing to
accept §2107(a) as jurisdictional and it precludes treating the
14-day period of §2107(c) as a limit on jurisdiction.
Footnote 4
The Court points out that we have
affixed a “jurisdiction” label to the time limit contained in
§2101(c) for petitions for writ of certiorari in civil cases.
Ante, at 6–7 (citing Federal Election Comm’n v.
NRA Political Victory Fund, 513 U. S. 88, 90 (1994);
this Court’s Rule 13.2). Of course, we initially did so in the days
when we used the term imprecisely. The status of §2101(c) is not
before the Court in this case, so I express no opinion on whether
there are sufficient reasons to treat it as jurisdictional. The
Court’s observation that jurisdictional treatment has had severe
consequences in that context, ante, at 7, n. 4, does
nothing to support an argument that jurisdictional treatment is
sound, but instead merely shows that the certiorari rule, too,
should be reconsidered in light of our recent clarifications of
what sorts of rules should be treated as jurisdictional.
Footnote 5
With no apparent sense of irony,
the Court finds that “ ‘[o]ur later cases … effectively
repudiate the Harris Truck Lines approach.’ ”
Ante, at 9 (quoting Houston v. Lack,
487 U. S. 266,
282 (1988) (Scalia, J., dissenting); omission in original). Of
course, those “later cases” were Browder and
Griggs, see Houston, supra, at 282,
which have themselves been repudiated, not just “effectively” but
explicitly, in Eberhart. See n. 3,
supra.
Footnote 6
Three, if we include
Wolfsohn v. Hankin, 376 U. S. 203 (1964)
(per curiam).
Footnote 7
As a member of the Federal
Judiciary, I cannot help but think that reliance on our orders is
reasonable. See O. Holmes, Natural Law, in Collected Legal Papers
311 (1920). I would also rest better knowing that my innocent
errors will not jeopardize anyone’s rights unless absolutely
necessary.
Footnote 8
Nothing in Osterneck v.
Ernst & Whinney, 489 U. S. 169 (1989),
requires such a strange rule. In Osterneck, we described
the “unique circumstances” doctrine as applicable “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.” Id., at 179. But the point we were making was that
Thompson could not excuse a lawyer’s original mistake in a
case in which a judge had not assured him that his act had been
timely; the Court of Appeals in Osterneck had found that
no court provided a specific assurance, and we agreed. I see no
reason to take Osterneck’s language out of context to
buttress a fundamentally unfair resolution of an issue the
Osterneck Court did not have in front of it. Cf. St.
Mary’s Honor Center v. Hicks, 509 U. S. 502, 515
(1993) (“[W]e think it generally undesirable, where holdings of the
Court are not at issue, to dissect the sentences of the United
States Reports as though they were the United States
Code”).
Footnote 9
At first glance it may seem
unreasonable for counsel to wait until the penultimate day under
the judge’s order, filing a notice of appeal being so easy that
counsel should not have needed the extra time. But as Bowles’s
lawyer pointed out at oral argument, filing the notice of appeal
starts the clock for filing the record, see Fed. Rule App.
Proc. 6(b)(2)(B), which in turn starts the clock for filing a
brief, see Rule 31(a)(1), for which counsel might reasonably want
as much time as possible. See Tr. of Oral Arg. 6. A good lawyer
plans ahead, and Bowles had a good lawyer.
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