July 12, 2007
Is the Statute of Limitations in the Tucker Act Jurisdictional?
Sticking with problems of determining what is jurisdictional and what is not, the Supreme Court will consider a variant in the fall when it hears arguments in John R. Sand & Gravel Co. v. U.S., 06-1164 (cert. granted May 29, 2007). In that case, John R. Sand leased land in Michigan that included a landfill. During the lease, the landfill was placed on the National Priorities List, and the EPA ordered remedial action. As part of the remedial action, the EPA erected fences and other barriers that interfered with John R. Sand’s business use of the land, both inside and outside the contaminated areas. John R. Sand filed suit against the EPA in the Court of Federal Claims under the Tucker Act, alleging a Fifth Amendment takings without just compensation.
The Government moved for judgment on the pleadings, contending that John R. Sand’s suit was time-barred by 28 U.S.C. § 2501, which states: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” The Government argued that John R. Sand’s claim accrued in 1992 when the EPA first physically occupied the property, and that John R. Sand’s complaint was filed in 2002, outside of the six-year limitations period.
The court denied the motion in part, reasoning that the Government had not borne its burden of establishing an accrual date more than six years prior to the filing of the complaint. After a bench trial on the merits, the court found that John R. Sand’s claims were timely but that John R. Sand had not proven an unconstitutional takings.
John R. Sand appealed to the Federal Circuit. The Government opposed on the merits but did not challenge the trial court’s finding that the claims were timely. Indeed, at oral argument before the Federal Circuit, the Government agreed with John R. Sand that the takings claim accrued in 1998 and was not time-barred. However, an amicus, the Metamora Group, raised the jurisdictional challenge and argued that the claims were time-barred because they accrued by 1994, at least eight years before the complaint was filed.
A divided panel of the Federal Circuit (Schall and Lourie, JJ.) agreed with the amicus and held that the statute of limitations restricts the subject-matter jurisdiction of the Court of Federal Claims and ordered the suit dismissed. John R. Sand & Gravel Co v. U.S., 457 F.3d 1345 (Fed. Cir. Aug. 9, 2007). The court held that the statute of limitations in the Tucker Act, a limitation on the waiver of sovereign immunity, creates a jurisdictional prerequisite that cannot be waived by the parties. Judge Newman dissented, reasoning that the statute of limitations in the Tucker Act should be treated as a waivable affirmative defense like other statutes of limitations.
The question presented is whether the statute of limitations in the Tucker Act, 28 U.S.C. § 2501, limits the subject-matter jurisdiction of the Court of Federal Claims. It will be interesting to see how the Court answers this question, particularly in light of Bowles v. Russell. The Petitioner’s brief on the merits is due August 3, 2007.
Below are relevant links:
Jeffrey K. Haynes, Beier Howlett, P.C., counsel of record for Petitioner
Gregory C. Sisk, Orestes A. Brownson Professor of Law at the University of St. Thomas School of Law, co-counsel for Petitioner
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.