Wednesday, November 08, 2017
More jurisdictionality from SCOTUS
My opinion analysis for Hamer v. NHSC is up on SCOTUSBlog. As I predicted, the Court unanimously (through Justice Ginsburg, who cares most deeply about these issues) held that FRAP 4(a)(5)(C)'s 30-day limit on extensions to file notices of appeal was not jurisdictional, then punted issues of waiver, forfeiture, and equitable exception to the Seventh Circuit for initial consideration. A few additional thoughts.
Despite mentioning it at argument, the Court did not mention or cite Scott Dodson's arguments that the rule is jurisdictional because it allocates cases between courts, but the label matters less than the consequences (waiver, forfeiture, equitable exception, etc.) that a rulemaker attaches to the rule. Jurisdictional rules are mandatory only if Congress makes them mandatory; non-jurisdictional rules can be mandatory if Congress makes them mandatory. The Court did speak of timing rules "governing the transfer of adjudicatory authority from one Article III court to another," which smacks of the allocation concept that Scott uses. But the Court could not move past the label above the effects of the rule (which are not dictated by the label).
The "clear and easy" rule of decision the Court announced is that "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." This does not mention the Arbaugh rule that a rule is jurisdictional only if Congress speaks in jurisdictional terms. But the synthesis is that Congress can speak in jurisdictional terms, while the Court under the REA never can speak in jurisdictional terms.
In an email, Scott identifies some problems and open questions from describing the issue as the timing for transferring adjudicatory authority from one court to another. This would make timing limits in transfer-of-venue statutes or statutes governing the time for filing cert. petitions jurisdictional. Another question is whether the same rule applies to transfers of authority from state court to federal court, which would make timing requirements for removal and cert. petitions from state courts jurisdiction. Or it would mean that the time for filing a petition from federal court would be jurisdictional, while the time for filing a petition from state court might not be. Scott argues that these open questions show that the rule is not so "clear and easy."
I think Ginsburg does a herculean job of harmonizing precedent. She has to strip Bowles down to its bare result, and she has to exempt certain timing rules from Arbaugh’s presumption rule. But, with one possible exception, she’s drawn lines that seem faithful to at least the *results* in prior cases.
The one possible exception is Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988). Torres held that the FRAP 3 requirement that the notice of appeal must specify the parties taking the appeal was a jurisdictional requirement. No statute codified this rule provision. And the Court relied heavily on the rulemakers’ determination that Rule 3 is jurisdictional. It’s not clear to me whether Torres survives Hamer.
The cost of harmonizing precedent is the oddities created by Hamer’s test.
On page 8, the Court states: “The rule of decision our precedent shapes is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional.” This seems to mean that if Congress sets a deadline in the venue-transfer statute (say, in 1400, 1404, or 1407), the deadline would be jurisdictional, even without a clear statement. Cf. n.9 (“In cases not involving the timebound transfer of adjudicatory authority from one Article III court to another, we have additionally applied a clear-statement rule . . . .”) That would seem odd for venue (though not to me, since I see venue as jurisdictional anyway).
Another area of concern is deadlines governing the transfer of adjudicatory authority from a state court to a federal court. The certiorari deadline in most civil cases is set by statute: 28 USC 2101(c). That statutory deadline applies regardless whether the reviewed judgment is from a federal court or a state court. Is it then jurisdictional only from a federal court? Or is it jurisdictional also when from a state court? Does the latter determination require an inquiry into the Arbaugh presumption? See Cox Broadcasting v. Cohn, 420 U.S. 469, 512 (1975) (Rehnquist, J., dissenting) (stating, without engaging any presumption, that Sec. 2101(c) “restricts this Court’s jurisdiction over state civil cases to those in which review is sought within 90 days”). And if the deadline to seek cert from a state court in a civil case is jurisdictional, is the statutory deadline of 30 days to file a notice of removal jurisdictional?
Further, isn’t it weird that the deadline to file a petition for cert from a federal circuit in a civil case is jurisdictional because it is in a statute but the same deadline to file a petition for cert from a federal circuit in a criminal case cannot be because it is only in a rule? Compare 28 USC 2101 with Sup. Ct. R. 13.1. Or does the Supreme Court profess to be able to establish jurisdictional rules governing itself (despite Article III’s commitment to Congress of the power to prescribe exceptions and regulations to the Court’s appellate jurisdiction)?
At the very least, the complications of removal and certiorari deadlines belie the Court’s confidence that its jurisdictionality doctrine is “both clear and easy to apply.”
Posted by: Scott Dodson | Nov 9, 2017 12:32:51 PM