OPINION OF THE COURT
DOLAN V. UNITED STATES
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 09-367
BRIAN RUSSELL DOLAN, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the tenth circuit
[June 14, 2010]
Justice Breyer delivered the
opinion of the Court.
This case concerns the remedy for
missing a statutory deadline. The statute in question focuses upon
mandatory restitution for victims of crimes. It provides that “the
court shall set a date for the final determination of the victim’s
losses, not to exceed 90 days after sentencing.” 18 U. S. C.
§3664(d)(5). We hold that a sentencing court that misses the 90-day
deadline nonetheless retains the power to order restitution—at
least where, as here, the sentencing court made clear prior to the
deadline’s expiration that it would order restitution, leaving open
(for more than 90 days) only the amount.
I
On February 8, 2007, petitioner
Brian Dolan pleaded guilty to a federal charge of assault resulting
in serious bodily injury. 18 U. S. C. §§113(a)(6), 1153; App.
17. He entered into a plea agreement that stated that “restitution
… may be ordered by the Court.”
Id., at 18. The
presentence report, provided to the court by the end of May, noted
that restitution was required. But, lacking precise information
about hospital costs and lost wages, it did not recommend a
restitution amount.
Id., at 27.
On July 30, the District Court
held Dolan’s sentencing hearing. The judge sentenced Dolan to 21
months’ imprisonment along with 3 years of supervised release.
Id., at 38. The judge, aware that restitution was
“mandatory,” said that there was “insufficient information on the
record at this time regarding possible restitution payments that
may be owed,” that he would “leave that matter open, pending the
receipt of additional information,” and that Dolan could
“anticipate that such an award will be made in the future.”
Id., at 39–40. A few days later (August 8) the court
entered a judgment, which, among other things, stated:
“Pursuant to the Mandatory Restitution Act,
restitution is applicable; however, no information has been
received regarding possible restitution payments that may be owed.
Therefore, the Court will not order restitution at this time.”
Id., at 49 (boldface deleted).
The probation office later prepared an addendum to
the presentence report, dated October 5, which reflected the views
of the parties, and which the judge later indicated he had
received.
Id., at 54. The addendum documents the “total
amount of restitution” due in the case (about $105,000).
Id., at 52. Its date, October 5, is 67 days after Dolan’s
July 30 sentencing and 23 days before the statute’s “90 days after
sentencing” deadline would expire. §3664(d)(5).
The sentencing court nonetheless set a
restitution hearing for February 4, 2008—about three months after
the 90-day deadline expired. As far as the record shows, no one
asked the court for an earlier hearing. At the hearing, Dolan
pointed out that the 90-day deadline had passed.
Id., at
54–55. And he argued that the law no longer authorized the court to
order restitution.
Id., at 60–64.
The court disagreed and ordered restitution.
See Memorandum Opinion and Restitution Order in No. CR 06–02173–RB
(D NM, Apr. 24, 2008), App. to Pet. for Cert. 47a. The Court of
Appeals affirmed. 571 F. 3d 1022 (CA10 2009). And, in light of
differences among the Courts of Appeals, we granted Dolan’s
petition for certiorari on the question. Compare
United
States v.
Cheal, 389 F. 3d 35 (CA1 2004)
(recognizing court’s authority to enter restitution order past 90
days) and
United States v.
Balentine, 569
F. 3d 801 (CA8 2009) (same), with
United States v.
Maung, 267 F. 3d 1113 (CA11 2001) (finding no such
authority), and
United States v.
Farr, 419
F. 3d 621 (CA7 2005) (same).
II
A
There is no doubt in this case
that the court missed the 90-day statutory deadline “for the final
determination of the victim’s losses.” §3664(d)(5). No one has
offered any excuse for the court’s doing so. Nor did any party seek
an extension or “tolling” of the 90 days for equitable or for other
reasons. All the information needed to determine the requisite
restitution amount was available before the 90-day period had
ended. Thus, the question before us concerns the consequences of
the missed deadline where, as here, the statute does not specify
them.
In answering this kind of
question, this Court has looked to statutory language, to the
relevant context, and to what they reveal about the purposes that a
time limit is designed to serve. The Court’s answers have varied
depending upon the particular statute and time limit at issue.
Sometimes we have found that the statute in question imposes a
“jurisdictional” condition upon, for example, a court’s authority
to hear a case, to consider pleadings, or to act upon motions that
a party seeks to file. See,
e.g., Bowles v.
Russell,
551 U. S. 205 (2007).
But cf.
Kontrick v.
Ryan,
540 U. S. 443, 455
(2004) (finding bankruptcy rule did not show legislative intent to
“delineat[e] the classes of cases” and “persons” properly “within a
court’s adjudicatory authority”); see also
Reed Elsevier,
Inc. v.
Muchnick, 559 U. S. ___, ___ (2010) (slip
op., at 5–6) (discussing use of term “jurisdictional”). The
expiration of a “jurisdictional” deadline prevents the court from
permitting or taking the action to which the statute attached the
deadline. The prohibition is absolute. The parties cannot waive it,
nor can a court extend that deadline for equitable reasons. See
John R. Sand & Gravel Co. v.
United States,
552 U. S. 130,
133–134 (2008).
In other instances, we have found that certain
deadlines are more ordinary “claims-processing rules,” rules that
do not limit a court’s jurisdiction, but rather regulate the timing
of motions or claims brought before the court. Unless a party
points out to the court that another litigant has missed such a
deadline, the party forfeits the deadline’s protection. See,
e.g., Kontrick v.
Ryan,
supra,
at 454–456 (60-day bankruptcy rule deadline for creditor’s
objection to debtor discharge);
Eberhart v.
United
States,
546 U.
S. 12, 19 (2005)
(per curiam) (7-day criminal rule
deadline for filing motion for a new trial).
In still other instances, we have found that a
deadline seeks speed by creating a time-related directive that is
legally enforceable but does not deprive a judge or other public
official of the power to take the action to which the deadline
applies if the deadline is missed. See,
e.g., United
States v.
Montalvo-Murillo,
495 U. S. 711, 722 (1990) (missed
deadline for holding bail detention hearing does not require judge
to release defendant);
Brock v.
Pierce County,
476 U. S. 253,
266 (1986) (missed deadline for making final determination as to
misuse of federal grant funds does not prevent later recovery of
funds);
Barnhart v.
Peabody Coal Co.,
537 U. S. 149, 171–172
(2003) (missed deadline for assigning industry retiree benefits
does not prevent later award of benefits).
After examining the language, the context, and
the purposes of the statute, we conclude that the provision before
us sets forth this third kind of limitation. The fact that a
sentencing court misses the statute’s 90-day deadline, even through
its own fault or that of the Government, does not deprive the court
of the power to order restitution.
B
Several considerations lead us to
this conclusion.
First, where, as here, a statute “does
not specify a consequence for noncompliance with” its “timing
provisions,” “federal courts will not in the ordinary course impose
their own coercive sanction.”
United States v.
James
Daniel Good Real Property,
510 U. S. 43, 63 (1993);
see also
Montalvo-Murillo,
supra, at 717–721.
Cf.,
e.g., Speedy Trial Act, 18 U. S. C. §3161(c)(1);
§3162(a)(2) (statute specifying that missed 70-day deadline
requires dismissal of indictment);
Zedner v.
United
States,
547 U.
S. 489, 507–509 (2006) (“The sanction for a violation of the
Act is dismissal”).
We concede that the statute here
uses the word “shall,” §3664(d)(5), but a statute’s use of that
word alone has not always led this Court to interpret statutes to
bar judges (or other officials) from taking the action to which a
missed statutory deadline refers. See,
e.g.,
Montalvo-Murillo, supra, at 718–719 (use of word “shall”
in context of bail hearing makes duty “mandatory” but does not mean
that the “sanction for breach” is “loss of all later powers to
act”);
Brock,
supra, at 262 (same in context of
misuse of federal funds);
Barnhart,
supra, at
158–163 (same in context of benefits assignments). See also
Regions Hospital v.
Shalala,
522 U. S. 448, 459,
n. 3 (1998) (same in respect to federal official’s reporting
date).
Second, the statute’s text places
primary weight upon, and emphasizes the importance of, imposing
restitution upon those convicted of certain federal crimes.
Amending an older provision that left restitution to the sentencing
judge’s discretion, the statute before us (entitled “The Mandatory
Victims Restitution Act of 1996”) says “
[n]otwithstanding any
other provision of law, when sentencing a defendant convicted
of [a specified] offense … , the court
shall order …
that the defendant make restitution to the victim of the offense.”
§3663A(a)(1) (emphasis added); cf. §3663(a)(1) (stating that a
court “may” order restitution when sentencing defendants convicted
of other specified crimes). The Act goes on to provide that
restitution shall be ordered in the “full amount of each victim’s
losses” and “without consideration of the economic circumstances of
the defendant.” §3664(f)(1)(A).
Third, the Act’s procedural
provisions reinforce this substantive purpose, namely, that the
statute seeks primarily to assure that victims of a crime receive
full restitution. To be sure speed is important. The statute
requires a sentencing judge to order the probation office to
prepare a report providing “a complete accounting of the losses to
each victim, any restitution owed pursuant to a plea agreement, and
information relating to the economic circumstances of each
defendant.” §3664(a). The prosecutor, after consulting with all
identified victims, must “promptly provide” a listing of the amount
subject to restitution “
not later than 60 days prior to the
date initially set for sentencing.” §3664(d)(1) (emphasis
added). And the provision before us says:
“If the victim’s losses are not ascertainable by
the date that is 10 days prior to sentencing, the attorney for the
Government or the probation officer shall so inform the court, and
the court shall set a date for the final determination of the
victim’s losses, not to exceed 90 days after sentencing.”
§3664(d)(5).
But the statute seeks speed primarily to help the
victims of crime and only secondarily to help the defendant. Thus,
in the sentence following the language we have just quoted, the
statute continues:
“If the victim subsequently discovers further
losses, the victim shall have 60 days after discovery of those
losses in which to petition the court for an amended restitution
order.”
Ibid.
The sentence imposes no time limit on the victim’s
subsequent discovery of losses. Consequently, a court might award
restitution for those losses long after the original sentence was
imposed and the 90-day time limit has expired. That fact, along
with the Act’s main substantive objectives, is why we say that the
Act’s efforts to secure speedy determination of restitution is
primarily designed to help victims of crime secure prompt
restitution rather than to provide defendants with certainty as to
the amount of their liability. Cf. S. Rep. No. 104–179,
p. 20 (1995) (recognizing “the need for finality and certainty
in the sentencing process,” but also stating that the “sole due
process interest of the defendant being protected … is the right
not to be sentenced on the basis of invalid premises or inaccurate
information”); see also
ibid. (“[J]ustice cannot be
considered served until full restitution is made”).
Fourth, to read the statute as
depriving the sentencing court of the power to order restitution
would harm those—the victims of crime—who likely bear no
responsibility for the deadline’s being missed and whom the statute
also seeks to benefit. Cf. §3664(g)(1) (“No victim shall be
required to participate in any phase of a restitution order”). The
potential for such harm—to third parties—normally provides a strong
indication that Congress did not intend a missed deadline to work a
forfeiture, here depriving a court of the power to award
restitution to victims. See
Brock, 476 U. S., at 262
(parties concede and court assumes that official can “proceed after
the deadline” where “inaction” would hurt third party); see also 3
N. Singer & J. Singer, Sutherland on Statutory Construction
§57:19, pp. 73–74 (7th ed. 2008) (hereinafter Singer,
Statutory Construction) (missing a deadline does not remove power
to exercise a duty where there is no “language denying performance
after a specified time,” and especially “where a mandatory
construction might do great injury to persons not at fault, as in a
case where slight delay on the part of a public officer might
prejudice private rights or the public interest” (footnote
omitted)).
Fifth, we have previously interpreted
similar statutes similarly. In
Montalvo-Murillo,
495 U. S. 711, for example, we
considered the Bail Reform Act of 1984, which states that a
“judicial officer shall hold a hearing” to determine whether to
grant bail to an arrested person and that “hearing shall be held
immediately upon the person’s first appearance before the
judicial officer.” (A continuance of up to five days may also be
granted.) 18 U. S. C. §3142(f) (emphasis added). The judicial
officer missed this deadline, but the Court held that the judicial
officer need not release the detained person. Rather, “once the
Government discovers that the time limits have expired, it may
[still] ask for a prompt detention hearing and make its case to
detain based upon the requirements set forth in the statute.” 495
U. S., at 721.
The Court reasoned that “a failure to comply”
with the hearing deadline “does not so subvert the procedural
scheme … as to invalidate the hearing.”
Id., at 717.
Missing the deadline did not diminish the strength of the
Government’s interest in preventing release to avert the likely
commission of crimes—the very objective of the Act.
Id.,
at 720. Nor would mandatory release of the detained person
“proportion[ately]” repair the “inconvenience and uncertainty a
timely hearing would have spared him.”
Id., at 721.
Here, as in
Montalvo-Murillo, neither
the language nor the structure of the statute requires denying the
victim restitution in order to remedy a missed hearing deadline. As
in
Montalvo-Murillo, doing so would defeat the basic
purpose of the Mandatory Victims Restitution Act. And, here, as in
Montalvo-Murillo, that remedy does not “proportion[ately]”
repair the harm caused the defendant through delay, particularly
where, as here, the defendant “knew about restitution,” including
the likely amount, well before expiration of the 90-day time limit.
App. 62. Indeed, our result here follows from
Montalvo-Murillo a fortiori, for here delay at
worst postpones the day of financial reckoning. In
Montalvo-Murillo, delay postponed a constitutionally
guaranteed bail hearing with the attached risk that the defendant
would remain improperly confined in jail. See 495 U. S., at 728
(Stevens, J., dissenting) (noting the seriousness “of the
deprivation of liberty that physical detention imposes”).
Nor does
Montalvo-Murillo stand
alone. The Court there found support in similar cases involving
executive officials charged with carrying out mandatory public
duties in a timely manner. See
id., at 718 (citing
French v.
Edwards, 13 Wall. 506, 511 (1872);
Brock, supra, at 260). Those cases, in turn, are
consistent with numerous similar decisions made by courts
throughout the Nation. See,
e.g., Taylor v.
Department of Transp., 260 N. W. 2d 521, 522–523
(Iowa 1977);
Hutchinson v.
Ryan, 154 Kan. 751,
756–757, 121 P. 2d 179, 182 (1942);
State v.
Industrial Comm’n, 233 Wis. 461, 466, 289 N. W. 769,
771 (1940); see also 3 Singer, Statutory Construction §57:19, at 74
(citing cases).
Sixth, the defendant normally can
mitigate any harm that a missed deadline might cause—at least if,
as here, he obtains the relevant information regarding the
restitution amount before the 90-day deadline expires. A defendant
who fears the deadline will be (or just has been) missed can simply
tell the court, which will then likely set a timely hearing or take
other statutorily required action. See §3664(d)(4) (providing that
“court may require additional documentation or hear testimony”);
§3664(d)(5). Though a deliberate failure of the sentencing court to
comply with the statute seems improbable, should that occur, the
defendant can also seek mandamus. See All Writs Act, 28 U.
S. C. §1651(a);
La Buy v.
Howes Leather Co.,
352 U. S. 249
(1957). Cf.
Brock, 476 U. S., at 260, n. 7 (noting
availability of district court action to compel agency compliance
with time-related directive).
C
Petitioner Dolan, however,
believes we have understated the harm to a defendant that a missed
deadline can cause. To show this he makes a three-part argument:
(1) A defendant cannot appeal a sentence unless it is part of a
“final judgment”; (2) a judgment setting forth a sentence is not
“final” until it contains a definitive determination of the amount
of restitution; and (3) to delay the determination of the amount of
restitution beyond the 90-day deadline is to delay the defendant’s
ability to appeal for more than 90 days—perhaps to the point where
his due process rights are threatened. Brief for Petitioner
28–33.
The critical problem with this
argument lies in its third step. As we have said, a defendant who,
like petitioner here, knows that restitution will be ordered and is
aware of the restitution amount prior to the expiration of the
90-day deadline can usually avoid additional delay simply by
pointing to the statute and asking the court to grant a timely
hearing. That did not happen here. And that minimal burden on the
defendant is a small cost relative to the prospect of depriving
innocent crime victims of their due restitution. (Should the court
still refuse, the defendant could seek mandamus—which we believe
will rarely be necessary.)
Even in the unlikely instances where that
delay does cause the defendant prejudice—perhaps by depriving him
of evidence to rebut the claimed restitution amount—the defendant
remains free to ask the court to take that fact into account upon
review. That inquiry might also consider the reason for the delay
and the party responsible for its cause,
i.e., whether the
Government or the victim. Cf.,
e.g., United
States v.
Stevens, 211 F. 3d 1, 4–6 (CA2 2000)
(tolling 90-day deadline for defendant’s bad-faith delay);
United States v.
Terlingo, 327 F. 3d 216,
218–223 (CA3 2003) (same). Adopting the dissent’s approach, by
contrast, would permit a defendant’s bad-faith delay to prevent a
timely order of restitution, potentially allowing the defendant to
manipulate whether restitution could be awarded at all. But since
we are not presented with such a case here, we need not decide
whether, or how, such potential harm or equitable considerations
should be taken into consideration.
In focusing upon the argument’s third step, we
do not mean to imply that we accept the second premise,
i.e., that a sentencing judgment is not “final” until it
contains a definitive determination of the amount of restitution.
To the contrary, strong arguments favor the appealability of the
initial judgment irrespective of the delay in determining the
restitution amount. The initial judgment here imposed a sentence of
imprisonment and supervised release, and stated that restitution
would be awarded. This Court has previously said that a judgment
that imposes “discipline” may still be “freighted with sufficiently
substantial indicia of finality to support an appeal.”
Corey v.
United States,
375 U. S. 169, 174, 175
(1963) (internal quotation marks omitted). And the Solicitor
General points to statutes that say that a “judgment of conviction”
that “includes” a “sentence to imprisonment” is a “final judgment.”
18 U. S. C. §3582(b). So is a judgment that imposes supervised
release (which can be imposed only in conjunction with a sentence
of imprisonment).
Ibid.; §3583(a). So is a judgment that
imposes a fine. §3572(c). See Tr. of Oral Arg. 33–34.
Moreover, §3664(
o) provides that a
“sentence that imposes an order of restitution,” such as the later
restitution order here, “is a final judgment.” Thus, it is not
surprising to find instances where a defendant has appealed from
the entry of a judgment containing an initial sentence that
includes a term of imprisonment; that same defendant has
subsequently appealed from a later order setting forth the final
amount of restitution; and the Court of Appeals has consolidated
the two appeals and decided them together. See,
e.g.,
United States v.
Stevens,
supra;
United States v.
Maung, 267 F. 3d 1113, 1117
(CA11 2001); cf.
United States v.
Cheal, 389
F. 3d 35, 51–53 (CA1 2004).
That the defendant can appeal from the earlier
sentencing judgment makes sense, for otherwise the statutory 90-day
restitution deadline, even when complied with, could delay appeals
for up to 90 days. Defendants, that is, would be forced to wait
three months before seeking review of their conviction when they
could ordinarily do so within 14 days. See Fed. Rule App. Proc.
4(b). Nonetheless, in light of the fact that the interaction of
restitution orders with appellate time limits could have
consequences extending well beyond cases like the present case
(where there was no appeal from the initial conviction and
sentence), we simply note the strength of the arguments militating
against the second step of petitioner’s argument without deciding
whether or when a party can, or must, appeal. We leave all such
matters for another day.
The dissent, however, creates a rule that
could adversely affect not just restitution, but other sentencing
practices beyond the narrow circumstances presented here. Consider,
for example, a judge who (currently lacking sufficient information)
wishes to leave open, say, the amount of a fine, or a special
condition of supervised release. In the dissent’s view, the entry
of any such judgment would immediately deprive the judge of the
authority later to fill in that blank, in the absence of a statute
specifically providing otherwise. See
post, at 1–4
(opinion of Roberts, C. J.). Thus, the sentencing judge would
either have to (1) forgo the specific dollar amount or potential
condition, or (2) wait to enter any judgment until all of the
relevant information is at hand. The former alternative would
sometimes deprive judges of the power to enter components of a
sentence they may consider essential. The latter alternative would
require the defendant to wait—perhaps months—before taking an
appeal.
As we have pointed out, our precedents do not
currently place the sentencing judge in any such dilemma. See
supra, at 5, 8–9. And we need not now depart from those
precedents when
this case does not require us to do so;
when the issue has not been adequately briefed; when the lower
court had no opportunity to consider the argument (which the
petitioner may well have forfeited); and when the rule would
foreclose the current practices of some district courts and
unnecessarily cabin the discretion they properly exercise over
scheduling and sentencing matters. Cf.,
e.g., United
States v.
Stevens,
supra, at 3;
United
States v.
Cheal,
supra, at 47 (illustrating
district court practices).
Certainly there is no need to create this rule
in the context of restitution, for provisions to which the dissent
refers are silent about whether restitution can or cannot be
ordered after an initial sentencing. See,
e.g., §§3551(b),
(c) (“A sanction authorized by [criminal forfeiture and restitution
statutes] may be imposed in addition to the [rest of the]
sentence”); §3663A(c)(1) (mandatory orders of restitution “shall
apply in all sentencing proceedings [for specified offenses]”). And
even on the dissent’s theory, the statute elsewhere provides the
necessary substantive authorization: “Notwithstanding any other
provision of law, when sentencing a defendant convicted of [a
specified] offense … ,
the court shall order … that the
defendant make restitution to the victim of the offense.”
§3663A(a)(1) (emphasis added). The dissent cannot explain why a
separate statutory provision regarding procedures as to
when a “court shall set a date for the final determination of the
victim’s losses,” §3664(d)(5), automatically divests a court of
this distinct substantive authority. While of course that provision
does not “plainly” confer “power to act after sentencing,”
post, at 5 (emphasis deleted), neither does it “plainly”
remove it or require that all sentencing matters be concluded at
one point in time. (And the dissent’s assertion, see
post,
at 6—that it uses the term “authority” not in its “jurisdictional”
sense, but rather in the sense that a court lacks “authority” to
“impose a sentence above the maximum”—introduces a tenuous analogy
that may well confuse this Court’s precedents regarding the term
“jurisdictional.” See
supra, at 3–4.)
In any event, unless one reads the relevant
statute’s 90-day deadline as an ironclad limit upon the judge’s
authority to make a final determination of the victim’s losses, the
statute before us itself provides adequate authority to do what the
sentencing judge did here—essentially fill in an amount-related
blank in a judgment that made clear that restitution was
“applicable.” App. 49 (boldface deleted). Since the sentencing
judge’s later order did not “correct” an “error” in the sentence,
Rule 35 does not apply. Compare Fed. Rule Crim. Proc. 35(a) with
post, at 2–3. Hence the dissent’s claim that there is no
other statute that creates authority (even were we to
assume all else in its favor, which we do not) is merely to restate
the question posed in this case, not to answer it.
Moreover, the dissent’s reading creates a
serious statutory anomaly. It reads the statute as permitting a
sentencing judge to order restitution for a “victim” who
“subsequently discovers further losses” a month, a year, or 10
years after entry of the original judgment, while at the same time
depriving that judge of the power to award restitution to a victim
whose “losses are not ascertainable” within 90 days. Compare
§3664(d)(5) (first sentence) with §3664(d)(5) (second sentence).
How is that a sensible reading of a statute that makes restitution
mandatory for victims?
Finally, petitioner asks us to apply the “rule
of lenity” in favor of his reading of the statute. Dolan has not
provided us with an example of an instance in which the “rule of
lenity” has been applied to a statutory time provision in the
criminal context. See
United States v.
Wiltberger, 5 Wheat. 76 (1820) (applying rule in
interpreting substantive criminal statute);
Bifulco v.
United States,
447 U. S. 381, 387, 400
(1980) (applying rule in interpreting “penalties”). But, assuming
for argument’s sake that the rule might be so applied, and after
considering the statute’s text, structure, and purpose, we
nonetheless cannot find a statutory ambiguity sufficiently
“grievous” to warrant its application in this case.
Muscarello v.
United States,
524 U. S. 125, 139
(1998) (internal quotation marks omitted). See
Caron v.
United States,
524 U. S. 308, 316
(1998) (rejecting application of rule where the “ambiguous” reading
“is an implausible reading of the congressional purpose”).
For these reasons, the judgment of the Court
of Appeals for the Tenth Circuit is
Affirmed.
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