By Elizabeth Chamblee Burch[*]
In response to Professor Scott Dodson’s essay, Jurisdictionality and Bowles v. Russell, imagine this: “Go ahead, take a ten day vacation,” says your boss. When you return on the tenth day, a pink-slip awaits. Per company policy, your boss fired you for being absent for more than eight days. This is what happened in Bowles v. Russell. Except that it wasn’t a job, a boss, or a company policy; it was a life prison sentence, a federal district court judge, and a court order. And what the order said was this: file your notice of appeal within seventeen days. Bowles filed within sixteen. Too late said the Supreme Court; regardless of the calculation error, the court of appeals had no jurisdiction after the fourteen-day deadline in Federal Rule of Appellate Procedure 4(a)(6).
Jurisdictional limits hold the key to the courthouse door. The 5–4 majority opinion in Bowles reasoned that because Congress set the fourteen-day deadline in 28 U.S.C. § 2107(c), as opposed to a deadline created by rule only, Rule 4(a)(6) was “mandatory and jurisdictional” and could not be equitably extended. This decision departs from recent precedent designating deadlines as nonjurisdictional. Professor Dodson’s essay navigates a path between Justice Thomas’s majority opinion and Justice Souter’s dissent by embracing Thomas’s use of “mandatory” and Souter’s argument for deeming appellate deadlines “nonjurisdictional.” This alternative dovetails with the Court’s recent precedent clarifying time lines as nonjurisdictional, but still allows Thomas to reach the same result. And it is more elegant, perhaps sparing courts some of the burdens and confusion left by the majority opinion.
But the “mandatory” designation misses the point: we are still left holding the pink-slip and Bowles is still without an appeal. Dodson explains that, by depicting the time limit as mandatory, the litigant who “wishes to enforce it . . . need only speak up in a timely manner, and the court is obligated to enforce the limit even if it is inequitable to do so.” Consequently, “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.”
This Colloquy Post begins by canvassing the nonjurisdictional proposal put forth by both Professor Dodson and Justice Souter. Considering the systemic, equitable policies underlying Rule 4(a)(6) and the prototypical examples distinguishing jurisdictional rules (those delineating classes of cases) from nonjurisdictional claim-processing rules, this nonjurisdictional alternative makes sense. It is the “mandatory” aspect of Professor Dodson’s proposal that concerns me; it leaves no room for equity absent the mercy of opposing counsel. Part II thus analyzes the inequitable consequences of labeling a rule either jurisdictional or mandatory. Finally, Part III concludes by commenting on Justice Thomas’s appeal to Congress for an equitable result.