Remand and Appellate Review Issues Facing the Supreme Court in Carlsbad Technology, Inc. v. HIF BIO, Inc.

Deborah J. Challener[*] & John B. Howell, III[**]

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Under 28 U.S.C. §§ 1447(c) and (d), remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction.[1]  Until recently, all appellate courts that had addressed the issue had concluded that when a district court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)[2] and remands the supplemental claims to state court, the remand is not based on a lack of subject matter jurisdiction and is therefore reviewable on appeal.[3]  In HIF Bio, Inc. v. Yung Shin Pharmaceuticals Industrial Co.,[4] however, the United States Court of Appeals for the Federal Circuit became the first circuit to hold that such remands, sometimes referred to as Cohill remands,[5] are based on a jurisdictional defect and therefore are not subject to appellate review.[6]  On October 14, 2008, the Supreme Court granted certiorari in HIF Bio to resolve the circuit split created by the Federal Circuit.[7]  The Court heard oral argument in the case, now captioned Carlsbad Technology, Inc. v. HIF Bio, Inc., on February 24, 2009. 

This Essay provides a brief explanation of § 1367 and §§ 1447(c) and (d) and argues that the Supreme Court should reverse the Federal Circuit’s decision in HIF Bio.  We contend that the Federal Circuit erred in concluding that Cohill remands are subject-matter jurisdictional because a district court does not remand supplemental claims based on its lack of power over the claims.  Instead, a district court remands supplemental claims based on its discretionary decision under § 1367(c) that a state court is a better forum in which to litigate them.  After establishing that Cohill remands are not subject-matter jurisdictional and therefore are reviewable on appeal, we examine the district court’s remand order and the Federal Circuit’s opinion in HIF Bio.  We assert that in reviewing the remand order in HIF Bio and deciding that Cohill remands fall within §§ 1447(c) and (d), the Federal Circuit incorrectly applied the Supreme Court’s recent decision in Powerex Corp. v. Reliant Energy Services, Inc.[8]  Finally, we offer a few comments about whether Cohill remands should be reviewable on appeal.

Appreciating Mandatory Rules: A Reply to Critics

By Scott Dodson[*]

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It seems that few are pleased with the Court’s recent decision in Bowles v. Russell, in which the Court held the time limit for filing a notice of appeal to be jurisdictional and therefore not susceptible to the unique circumstances doctrine.[1]  As I wrote in my original Essay, I believe the Court disrupted prior precedent and missed a golden opportunity to develop, in a principled way, a framework for characterizing rules as jurisdictional or not[2] and I adhere to those views.

Three have responded to my Essay. Professor Perry Dane criticizes Bowles for failing to appreciate that jurisdictional rules—assuming the deadline to file a notice of appeal is in fact jurisdictional—need not lead inexorably to a rigid application.[3]  Mr. E. King Poor, Esq., defends Bowles as rightly decided and also as a good result.[4]  And, Professor Beth Burch criticizes Bowles for some of the same reasons I do, but she goes further to suggest that the Court (and I) failed to give sufficient recognition to the equity appeal of the case.[5]  It is appropriate for me to provide a brief reply to those who have joined me in this debate.

I.  A Reply to Professor Dane

I am sympathetic to Professor Dane’s argument that a jurisdictional rule need not necessarily be applied rigidly.[6]  I would go further, however, and explore—in a very preliminary way—three different strands that, while not necessarily entirely distinct from each other, capture different aspects of the role flexibility may play in jurisdictionality.

Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy

By Howard M. Wasserman[*]

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In his outstanding article, In Search of Removal Jurisdiction,[1]  Professor Scott Dodson delineates the appropriate boundaries between rules of subject matter jurisdiction and rules of judicial procedure in the context of removal time limits, and argues that we must develop a “broader understanding of the interrelationship and boundaries among the trichotomy of jurisdiction, procedure, and merits.”[2]  He also suggests that the strands of each pair in the triangle interact in distinct ways and require distinct rules for separating one from the other.[3]  Having sought in recent work to define, clearly and cleanly, boundaries between subject matter jurisdiction and the substantive merits of federal claims of right,[4]  I agree as to both points.

This Essay constitutes an initial move towards that understanding. It examines each pair in the conceptual trichotomy, considering the connections at each point in the triangle, when those connections come into play, and how and why to disentangle each pair.

Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles v. Russell

By Perry Dane[*]

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The courts, and in particular the Supreme Court, have made a mess of the doctrine of jurisdiction and the idea of jurisdictionality.  More specifically, they have made a mess of the relationship between time limits and the idea of jurisdictionality.  That much is clear.  The more interesting question, though, is why.  The answer to that question has profound and deeply evocative jurisprudential implications.

Bowles v. Russell[1] was the Supreme Court’s most recent foray into the problem of jurisdictionality.  Professor Scott Dodson’s short essay on the case[2] thoughtfully identifies some of the majority opinion’s analytic defects and practical pitfalls.  He argues that the Court’s majority in Bowles was wrong to hold that the particular time limit contained in 28 U.S.C. § 2107(c) is jurisdictional.  I am not sure I agree, though that is not the main thrust of my own comments here.  More broadly, Professor Dodson acutely and usefully reminds all of us that time limits can be taken seriously, and even interpreted literally or peremptorily, without necessarily being labeled jurisdictional.  Here I agree completely, but would add, importantly, that time limits can also be jurisdictional without being interpreted literally and peremptorily, and that the court’s failure to see this is evocative of something odd and melancholy in our current legal culture.

Much of my argument here appeared in an article called Jurisdictionality, Time, and the Legal Imagination that I published long before Bowles was decided.[3]  I am not surprised that the Justices did not heed, and probably did not read, that article.  I am intrigued, though, why they did not get the key to the jurisdictionality problem right on their own when the basic outline of the problem (though, to be sure, not the solution in any particular instance) is really so simple.

The Jurisdictional Time Limit for an Appeal: The Worst Kind of Deadline—Except for All Others*

By E. King Poor[**]

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“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.[1]  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.[2]  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.[3]  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.[4]

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.

Nonjurisdictionality or Inequity

By Elizabeth Chamblee Burch[*]

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In response to Professor Scott Dodson’s essay, Jurisdictionality and Bowles v. Russell,[1] 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.[2]  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.[3]  And what the order said was this:  file your notice of appeal within seventeen days.[4]  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).[5]

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”[6] and could not be equitably extended.[7]  This decision departs from recent precedent designating deadlines as nonjurisdictional.[8]  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.”[9]  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.”[10]  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.”[11]

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.

Jurisdictionality and Bowles v. Russell

By Scott Dodson[*]

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On June 14, 2007, the Supreme Court decided Bowles v. Russell,[1] a case watched primarily by procedure geeks but one which may have enormous impact for courts and litigators.  It addressed a ubiquitous but confusing question of jurisdictional characterization:  when is a limitation “jurisdictional,” and when is it not?  Litigators encounter these questions all the time in statutory coverage issues, in time limitations, and in a host of other preconditions.  Whether a particular limitation is jurisdictional or not can be an important question, for jurisdictional limitations are not subject to waiver or equitable exceptions, may be raised at any time, and obligate courts to monitor and raise them sua sponte.  In Bowles, the Court held that the statutory time limitation for filing a notice of appeal is jurisdictional.