July 9, 2007
A Sleeper Case--Bowles v. Russell
A few days ago, I promised to post on Bowles v. Russell, which Rory previously addressed here. I am expressing my thoughts in more detail in an essay titled “Jurisdictionality and Bowles v. Russell” that will be published in a few weeks in Northwestern University Law Review Colloquy. But I wanted to get a few things off my chest now and hear any responses.
The facts and procedural history of the case are straightforward. Bowles, a habeas corpus petitioner, was denied relief in federal district court. He did not appeal within the 30 day period prescribed by 28 U.S.C. § 2107, but he did timely move to reopen the period, as allowed by § 2107(c). In its order, the district court gave Bowles 17 days to file his notice of appeal. Bowles filed on the 16th day. But § 2107(c) limits any extension to 14 days. Thus, Bowles’s notice of appeal was timely under the district court’s order but untimely under § 2107(c). The Sixth Circuit dismissed the appeal for lack of jurisdiction.
The Supreme Court, in a 5-4 decision written by Justice Thomas, affirmed. In a nutshell, Justice Thomas held the limitation to be jurisdictional for two reasons: (1) a consistent line of precedent stretching back over 100 years treated it as jurisdictional; and (2) the limitation is codified in a statute rather than a court rule.
There are several things wrong with Bowles (though the ultimate affirmance may not be one of them). First, the precedent is not as clear as Justice Thomas makes out. All of the cases he cites interpreting § 2107 used the doublet “mandatory and jurisdictional” to describe the time limitation. But, in each case, the issue was only whether a failure to comply with the limitation, properly invoked, could be excused. In other words, the same result in each case could have been reached by characterizing the limit as “mandatory but nonjurisdictional. (More on what “mandatory” means below.) The moniker of “jurisdictional” in each of the cases (and in Bowles as well) is, at best, dictum and, at worst, a careless misuse of the term.
Second, Justice Thomas’s second point relies on flawed logic. He is correct to recognize a jurisdictionally significant distinction between statutes and court rules adopted under the Rules Enabling Act. A court rule that purports to limit the jurisdiction of the federal courts is constitutionally problematic because Congress is the Branch given that power. But that court rules cannot themselves limit jurisdiction does not mean that statutes must. Congress has the power to limit federal jurisdiction by statute, and certainly could have done so in § 2107, but the mere fact that the limit is expressed in a statute does not mean that it is jurisdictional.
Third, Bowles is in tension with recent prior precedent attempting to develop a methodical approach to resolving questions of characterizing limits as jurisdictional or not. Those recent cases had uniformly trended towards finding limits nonjurisdictional. Bowles goes the other way and, in the process, “call[s] into question” (Justice Thomas’s words) that approach.
Fourth, Bowles fails to provide much-needed guidance. Sure, it establishes that the time for filing an appeal as set forth in § 2107 is jurisdictional. But Justice Thomas dismisses the more nuanced guidance provided by recent precedent in other areas as “dicta,” and he fails to ground a jurisdictional characterization inquiry on considerations of what “jurisdiction” really is. In other words, he does not explain what lower courts should do when they confront a statutory limit that lacks an historical pedigree. What should lower courts now do about, for example, the thirty-day time limit to file a notice of removal as required by 28 U.S.C. § 1446(b)? The consensus among lower courts prior to Bowles is that that statutory time limit is non-jurisdictional. It is difficult to understand from Bowles whether (and why) the lower courts still have § 1446 right. In short, Bowles may create certainty for the narrow case before it, but it creates confusion for a host of other cases. (Shameless plug: for more on what would be a principled framework for resolving statutory characterizations of jurisdictionality in the removal statute, see my Article “In Search of Removal Jurisdiction.)
Fifth, Bowles fails to consider the viable middle course that I alluded to above: characterizing the statutory time limit as mandatory but nonjurisdictional (or at least as mandatory without deciding whether it is also jurisdictional). A mandatory rule means that if the party for whose benefit it exists timely invokes it, the court has no discretion to excuse compliance. Thus, equitable exceptions (including the “unique circumstances” doctrine) are not available. However, the right to invoke a mandatory rule may be waived or forfeited by that party, and the court need not ensure compliance sua sponte. Here, because Russell’s appellate brief to the Sixth Circuit invoked the untimeliness of Bowles’s notice of appeal, characterizing the rule as mandatory would preclude applicability of the “unique circumstances” doctrine and result in the same outcome. Justice Thomas did not need to go so far as to hold also that the time limit was jurisdictional.
I think Bowles v. Russell is a sleeper case. Although it seems relatively straightforward on the surface, it undermines prior precedent and lacks principled reasoning, and therefore I believe Bowles will cause confusion among the lower courts and litigants whenever a statutory limitation issue arises…which is likely to be rather often.
UPDATE: My Essay on Bowles published by Northwestern University Law Review's Colloquy is here.
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Bowles v. Russell is a frustrating case for a variety of reasons. I agree with those that you listed. I recently wrote a law review article on this case and there are two points beyond those made here that I want to make.
First, it frustrates me that Justice Thomas refuses to adequately reconcile this case with the unanimous decision in Y&H Corp. v. Arbaugh, decided just a short time before Bowles. In that case, the Court held that an employee-numerosity requirement to bring a Title VII action was not jurisdictional in nature, even though it is a procedural restriction. The Court determined that these procedural restrictions were not jurisdictional in nature unless Congress specifically labled them as such. This is the better view that Thomas and the Bowles majority ignored. In Bowles, Thomas only discussed Arbaugh to the extent that it did not apply because it had to do with an "employee-numerosity" requirement rather than a procedural time restriction.
Secondly, although not applicable to this issue, it is interesting to compare this case with the collateral bar rule. The collateral bar rule says that a litigant must obey a court order, even if it is facially unconstitutional or otherwise erroneous, until it is overturned on the merits. The Supreme Court invoked this rule in the famous case, Walker v. City of Birmingham, during the apex of the civil rights movement. This rule creates quite a paradox when compared with the Bowles decision. On one hand the collateral bar rule indicates that a litigant must obey a court order even if it is wrong, or be subject to criminal liability. On the other hand, Bowles obeyed a court order that was incorrect on its face (the time to file the notice of appeal was one day off) and he still faced a penalty.
Posted by: Johnathan Rhodes | Apr 18, 2008 9:03:22 AM