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Tuesday, October 03, 2017

Hamer Time

I wrote a SCOTUSBlog preview of Hamer v. Neighborhood Housing Services of Chicago, to be argued next Tuesday; the case considers the jurisdictionality of FRAP 4(a)(5)(C), which limits extensions of time to appeal to 30 days beyond the original appeals period.

Although I did not discuss this in the preview, it bears watching how Justice Gorsuch approaches jurisdictionality. He demonstrated some iconoclastic views on procedural issues in his few cases from the April sitting last Term, often running counter to the rest of the Court, to the Court's recent doctrinal trends, and to recent precedent. Might he be inclined to return to drive-by jurisdictional rulings, counter to the Court's trend of the past decade?

Posted by Howard Wasserman on October 3, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink

Comments

I thought that drive-by jurisdictional rulings, as you and the Court used the term, were unreasoned rulings that something was jurisdictional, usually made in cases that weren't granted to decide whether or not something was. Now, unlike you I don't find Gorsuch's dissent in Perry forceful at all, indeed find it as unreasoned and "drive-by" a treatment of the real problem in the case as a dissent of ten pages could possibly be. But even so I don't think it at all possible that he will be inclined to return to *unreasoned* holdings that something is jurisdictional, though I do suspect he may be more inclined to say that claims-processing rules are jurisdictional than other Justices. The drive-by rulings are deemed failures of craft, and nobody wants to return to committing failures of craft, at least not these days. And anyway it's hard to imagine what a drive-by jurisdictional ruling in a case granted only to decide jurisdictionality would look like.

On your preview, I was wondering what the difference between a jurisdictional rule and a mandatory claims-processing rule that's not subject to waiver, forfeiture, or equitable exception would be.

Posted by: Asher Steinberg | Oct 3, 2017 1:39:34 PM

I used the term to describe any inappropriate treatment or labeling of an issue as jurisdictional when it is better understood as merits.

Not sure why you think I find Gorsuch's dissent forceful. I don't and never said I did.

There would be no practical difference. But I'm with Dodson that you could have a non-mandatory jurisdictional rule. So the label doesn't matter.

Posted by: Howard Wasserman | Oct 3, 2017 5:04:53 PM

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