By E. King Poor[**]
“In order to know what it is, we must know what has been, and what it tends to become.” —Oliver Wendell Holmes[***]
Notices of appeal have traveled to courthouses in many ways over the past century and a half: horse-drawn carriage, steam locomotive, gas-powered truck, propeller and jet planes, and now, in some districts, by electronic case filing. But whatever the mode of delivery, there has been remarkable uniformity as to how federal judges have treated notices of appeal when they have arrived past the deadline set by Congress. This time limit has always been deemed to be “jurisdictional,” meaning that neither the parties nor the trial judge could change it and the appellate court could raise it on its own. While American law has changed in countless ways since the mid-nineteenth century, the fundamental nature of time limits has not, nor has the judicial treatment of the time for an appeal. So the question arises, is this longstanding treatment of the time for an appeal simply the result of hundreds of judges unthinkingly following precedent? Or is there is something else going on here? There is something else. And this Essay explains what that is and why. In particular, practical experience teaches that the judicial system as a whole works far better—with greater stability and overall fairness—when the time for an appeal cannot be manipulated by the parties or overridden by the trial court and thus is treated as jurisdictional.
This Essay responds to those of Professors Scott Dodson and Elizabeth Chamblee Burch. Each of their essays criticizes the Supreme Court’s recent decision in Bowles v. Russell, which held that the time for filing an appeal in civil cases under 28 U.S.C. § 2107(c) is jurisdictional. Professor Dodson argues that Bowles is only half right because, though the statutory deadline to file an appeal should not be deemed “jurisdictional,” it should still be considered “mandatory” in the sense that—if timely raised—it will be enforced without resort to equitable exceptions. Professor Burch, on the other hand, maintains that Professor Dodson is only half right because Bowles is all wrong. She argues that the statutory deadline for an appeal is neither mandatory nor jurisdictional, and that it should be malleable based on general equitable exceptions whether or not it is timely invoked.
This Essay looks at the issue differently. It begins with the recognition that thousands of federal court decisions over a century and a half have unequivocally held that the time for filing an appeal is jurisdictional and that Congress has never intervened to change that view. As such, close to 160 years of case law could not have been silently swept away by dicta in Supreme Court decisions over the past three years dealing with other deadlines, as Professors Dodson and Burch suggest.
The Essay next examines the reasons behind this history. While much of the criticism of Bowles has revolved around theoretical arguments about the precise meaning of the word “jurisdiction” or the particular facts of the case itself, the decisions holding that a timely appeal is jurisdictional have persisted for practical reasons. To understand these reasons, several hypothetical situations are presented. These illustrate that ignoring an unambiguous time limit set by statute in the name of “flexibility” or “equity” is hardly innocuous and actually causes uncertainty and confusion as to when a judgment is final, invites wasted resources in sorting out whether exceptions apply, and undermines the reliability and evenhandedness that are essential for a system of justice. As a result, there are sound reasons why generations of federal judges have consistently treated this deadline as jurisdictional. Thus, Bowles is a reaffirmation of this long line of authority and was correctly decided.