A blueprint for applying the Rules Enabling Act's supersession clause.

• Author: Vitarelli, Anthony

When Congress passed the Rules Enabling Act (REA), (1) it deferred to the Supreme Court's institutional expertise to enact guidelines for judicial procedure. In the REA, Congress included a provision-now known as the supersession clause--that declared existing statutes in conflict with new rules to "be of no further force or effect." (2) This Comment examines a divergence between 18 U.S.C. [section] 3731 and Federal Rule of Appellate Procedure 4(b)(1)(B) that implicates the supersession clause. Three circuits have adjudicated this conflict and reached different conclusions. The substance of the conflict concerns the timeliness of government appeals of district court decisions and orders in criminal cases. At present, Rule 4(b) permits a longer appellate time limit than [section] 3731, but a 2007 Supreme Court case, Bowles v. Russell, (3) may invalidate any limit longer than that in [section] 3731. This Comment asserts that irrespective of Bowles, applying the supersession clause favors the primacy of Rule 4(b). Employing the supersession clause provides a blueprint for future rule-statute disputes concerning timeliness. In making these determinations, this Comment argues that courts should evaluate the rule versus the statute according to three metrics: the relative recency of enactment, the institutional competence of the respective authors to decide the issue, and the degree to which the rule affects substantive rights.

1. THE SPECTRUM OF RULE-STATUTE PRIMACY

   Rule 4(b) and [section] 3731 diverge with respect to the moment at which the government's thirty-day appellate time limit begins. Section 3731 states that the "appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered." (4) By contrast, Rule 4(b) states that "[w]hen the government is entitled to appeal, its notice of appeal must be fried in the district court within 30 days after the later of: (i) the entry of the judgment or order being appealed; or (ii) the filing of a notice of appeal by any defendant." (5) The statute begins the thirty-day clock when the decision is rendered, but the rule begins the countdown once the judgment or order has been entered on the criminal docket. (6) Any delay between the issuance of the order and its entry on the docket creates a disparity between the deadline authorized by the statute and the later deadline provided for in the rule. In factually similar cases, the Fifth, Ninth, and Tenth Circuits resolved this disparity by relying on different legal authorities, resulting in three divergent outcomes.

   The Fifth Circuit in United States v. Wilson held that only Rule 4(b) applies because "where a conflict exists between a rule and a statute, the [more] recent of the two prevails." (7) In Wilson, the government fried its appeal thirty-two days after an order suppressing evidence was issued, but only twenty-nine days after the order had been entered into the docket. In an earlier Fifth Circuit case, Jackson v. Stinnett, the court had adopted the last-in-time analysis for rule-statute conflicts. (8) The Wilson court ultimately concluded that while "'repeals by implication are not favored,' ... 'the later act to the extent of the conflict constitutes an implied repeal of the earlier one." (9) The Fifth Circuit also cited [section] 3731's final line that the statute shall be "liberally construed to effectuate its purposes." (10)

   The Ninth Circuit has similarly addressed this conflict. Although it initially concluded that "It]he Rule trumps the statute," (11) the court ultimately held on rehearing that the statute has the same effect as the rule. (12) In United States v. Kim, the government appealed an order dismissing an indictment sixty-two days after the decision but only twenty-nine days after docketing. The Ninth Circuit panel wrote unambiguously that "[n]o conflict exists because [the Rules Enabling Act] has abolished [[section] 3731]." (13) Upon rehearing, however, the same Ninth Circuit panel amended that opinion, citing a 1992 case from the Tenth Circuit, United States v. Sasser, which held that the rules could not extend the court's statutory jurisdiction. (14) Noting its reluctance "to read the Rules ... to have made an illegal expansion of our jurisdiction," the court clarified that "a judgment is rendered when there is entry of the judgment on the docket." (15) Thus, in Kim II, the Ninth Circuit backtracked from its original holding in Kim I and crafted a definition of "rendering judgment" from S 3731 that almost exactly matches the language of the timeliness provision from Rule 4(b). The Ninth Circuit's position does not necessarily favor the rule over the statute; it merely holds that they compel the same outcome.

   Resolving a dispute stemming from the government's appeal of a dismissed indictment, the Tenth Circuit in Sasser held that "in case of a conflict between a jurisdictional statute and the Rules of Appellate Procedure, the statute controls." (16) The government's appeal was filed within thirty days of the defendant's appeal but thirty-four days after the original order. The Tenth Circuit ruled for the defendants, citing Rule l(b), which states that "[t]hese rules shall not be construed to extend or limit the jurisdiction of the courts of appeals as established by law." (17) The court also remarked normatively that "the government generally is not as disadvantaged as the defendant by ... time limitation[s]." (18) At no point in the decision did the majority discuss the supersession clause.

   These three circuits reached two diametric conclusions and a potential compromise position. The Fifth Circuit held that the rule unequivocally trumped the statute, whereas the Tenth Circuit held the reverse. By harmoniously construing both the statute and the rule, the Ninth Circuit may have established a middle ground. While the Ninth Circuit's conclusion avoids an undesirable implied repeal, it may not satisfy the jurisdictional concerns presented in Sasser.

2. THE SUPREME...