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More on the Decision in Bowles v. Russell

The following entry is by Faith Barter, a summer associate in Akin Gump’s DC office and a student at American University’s Washington College of Law.

The devil is in the details, and the Federal Rules of Appellate Procedure, with their exacting technical requirements, are no exception. One such rule permits a district court, in certain circumstances, to reopen the time for filing a notice of appeal, but only for fourteen days. What happens, however, if the district court wrongly permits seventeen days to take an appeal and the appellant files his notice of appeal within the time permitted by that order, but not by the rules? Today, in a 5-4 decision authored by Justice Thomas, the Supreme Court ruled that, in this situation, the Federal Rules control, and an appellate court lacks jurisdiction to consider the appeal.

After unsuccessfully appealing his murder conviction, petitioner Keith Bowles sought federal habeas relief. Here too he was unsuccessful: the district court dismissed his petition and subsequently denied his motion for a new trial. Pursuant to FRAP 4(a), the entry of the latter order triggered the start of the period in which Bowles could timely appeal the district court’s dismissal of his habeas petition (which had been tolled while his motion for a new trial was pending). However, the court never served the order on Bowles or his attorney, who only became aware of it well after the time to appeal had expired.

In light of the defective notice to Bowles, the district court exercised its option under FRAP 4(a)(6) to reopen the time for appeal. However, the court’s order gave Bowles seventeen days to appeal – a full three days longer than the fourteen days provided by Rule 4(a)(6). Bowles filed a notice of appeal on Day Sixteen – i.e., in compliance with the district court order, but outside the fourteen-day period prescribed by the rule. The Sixth Circuit dismissed the appeal for lack of jurisdiction, ruling that the time limit imposed by Rule 4(a)(6) “is not susceptible to extension through mistake, courtesy, or grace.” In today’s opinion, the Court agreed with the Sixth Circuit that the time limits in the Federal Rules are jurisdictional in nature.

The Court began by emphasizing its long-standing practice of limiting jurisdiction with respect to the timing of appeals. Citing cases from as early as 1848 (pre-dating the creation of the circuit courts of appeals), the Court cast the timing of appeals as consistently and sensibly jurisdictional questions.

By contrast, Bowles had urged the Court to construe the FRAP 4(a)(6) limit as a claims-processing issue, which is waivable, rather than as a question of jurisdiction, which cannot be waived. Such an argument was not without precedent: in 2004, the Court held in Kontrick v. Ryan that time limits in the Federal Rules of Bankruptcy Procedure are claims-processing, not jurisdictional. However, in today’s opinion, Justice Thomas distinguished the time limits for filing a notice of appeal, which are embodied in a statute, from those in the Bankruptcy Rules, which are court-made rules that promote “the orderly transaction of [court] business.” Congress determines subject-matter jurisdiction for lower courts; Justice Thomas reasoned that the FRAP limit is jurisdictional by virtue of Congress’s specific decision to codify the time limit by statute.

Bowles also advanced the “unique circumstances” doctrine as an excuse for his untimely filing. Having already decided that the time limit was jurisdictional, Justice Thomas made short shrift of this argument, deeming use of the doctrine “illegitimate” because the “Court has no authority to create equitable exceptions to jurisdictional requirements.” Without stopping there, the Court then turned to two earlier cases that applied the “unique circumstances” doctrine to time limits: Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc. and Thompson v. INS. Citing the doctrine’s “40-year slumber,” the Court overruled the cases “to the extent that they purport to authorize an exception to a jurisdictional rule.”

Justice Souter, in a dissent joined by Justices Stevens, Ginsburg, and Breyer, came out swinging at the majority opinion. Decrying the result in the case, he complained that “[i]t 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.”

The dissent emphasized the Court’s recent treatment of time limits as non-jurisdictional issues, unless Congress has designated a limit as having jurisdictional significance: no such designation, the dissent noted, was made in the case of the FRAP 4(a)(6) limit. As such, the dissenters would construe the FRAP limit as a non-jurisdictional issue. Justice Souter also drew an analogy between the FRAP time limit and a statute of limitations, which is not jurisdictional but instead creates an affirmative defense. Such an analogy would produce the same effect as the claims-processing construction, as statutes of limitations are also waivable and excusable.

The dissenters also would have applied the “unique circumstances” doctrine to Bowles’s case. Rather than overruling Thompson v. INS, the dissent would have relied on the opinion as precedent for an equitable exception to the FRAP time limit. Justice Souter expressed outrage at the majority’s holding “that Bowles cannot depend on the word of a District Court Judge.” Likewise, the dissent found Bowles’s lawyer blameless, noting that the lawyer had no reason to question the date on the court order.

Despite the dissent’s strong language, the majority opinion left no room to out-maneuver the Federal Rules of Appellate Procedure. In essence, the majority held that Congress, by including the details of the rules in statutory form, automatically codified the filing deadlines into jurisdictional requirements. While this is bad news for many petitioners, and undoubtedly bad news for Bowles, it does establish a rare bright line for practitioners: in filing appeals, petitioners should look no further than the four corners of the Federal Rules. And in any case, the real lesson from Bowles v. Russell is that it never pays to put off until tomorrow what could be done today.