Jurisdiction and the federal rules: why the time has come to reform finality by inequitable deadlines.

• Author: Robbins, Christopher W.

1. HISTORICAL USE OF "JURISDICTIONAL": A CIRCULAR TRAVEL A. Pre-Rules Enabling Act Jurisdictional Decisions B. Post-Rules Enabling Act Cases: "Jurisdictional" Loses Its Meaning 1. The Original Rulemakers Lacked a Clear Conception of the Term "Jurisdictional" and Its Impact on Their Authority 2. Courts Attempt to Define the Impact of Rule 6 and Its Analogs by Blurring the Meaning of "Jurisdictional" C. Cleaning Up the Meaning by Reclaiming the Congressional Origins D. Statutes Begin to Dominate the Rules II. THE HISTORICAL TREATMENT CALLS INTO QUESTION WHETHER POST-TRIAL-MOTION AND NOTICE-OF-APPEAL REQUIREMENTS ARE TRULY JURISDICTIONAL III. CURRENT STATUS OF POST-TRIAL DEADLINES AND THE DEADLINE FOR NOTICES OF APPEAL A. Notice of Appeal in Criminal Cases B. Notice of Appeal in Civil Cases and Post-Trial Motions that Toll the Deadline C. Supersession of § 2107 or Invalidity of Appellate Rule 4(a)(3) D. Permissive Appeals and Rule 5 E. Status of the Doctrine of Unique Circumstances IV. DIVORCING "JURISDICTIONAL" FROM THE FEDERAL RULES: REFORMING THE SYSTEM OF PROVIDING FINALITY A. Authority of the Rulemakers to Reform the Deadlines B. Introducing Equity into Civil Rule 6 and Its Analogs 1. Responsibilities of the Court as an Adjudicatory Body a. A Default of Nonjurisdictionality b. Interpretation of the Federal Rules Regarding Finality 2. Repeal of § 2107 3. Retaining Claim-Processing Rules with Some Modification 4. Awakening the Slumbering Doctrine of Unique Circumstances CONCLUSION Over seventy years ago, the creation of the Federal Rules of Civil Procedure represented the triumph of equity over the often-arbitrary distinctions created by the common law pleading and code pleading systems that predated them. (1) Despite equity's expansion beyond pleading and into most areas of litigation, there still remains an area where the rules of procedure are inflexible and complex: the current system of post-trial motions and notices of appeal often creates "trap[s] for an unsuspecting litigant" (2) during the transfer of a case to the court of appeals from the district court. Limitations on the power of the district court to hear motions after the judgment have long been viewed as having 'jurisdictional significance," (3) and courts view the deadlines as "mandatory and jurisdictional." (4) This use of the term "jurisdictional" prevents resort to equitable principles that could excuse noncompliance in certain cases where strict litigation deadlines create harsh results. (5)

   Several examples show that the rejection of equity has seriously limited the ability of litigants to have a district court or court of appeals entertain challenges to a judgment through either a post-trial motion or appeal. The Supreme Court has denied a litigant the opportunity to appeal a judgment because the litigant relied on a date set incorrectly by a district court judge, resulting in an untimely appeal. (6) The Court has also found jurisdiction lacking and dismissed an appeal when an appellant used "et al." to designate the identity of those appealing under Appellate Rule 3, instead of listing all plaintiffs individually or using a clearer term like "all plaintiffs." (7) The lack of equity results in seemingly unfair and often-shocking sanctions for minor procedural defects, not because the results are "imposed by the legislature," as the Court has stated, but because courts misuse the term 'Jurisdictional."

   The history and meaning of the term 'Jurisdictional" continue to create questions for courts and commentators with respect to procedural requirements at the crucial transfer of the case from the district court to the court of appeals. (8) The history of the term's use provides insight into its changing meaning, eventually expanding beyond "that imposed by the legislature." The federal courts have incorrectly used the term 'Jurisdictional" to abstain from deciding how to address the inequitable situations that arise from strictly enforced litigation rules. The courts, in essence, have confused doctrines of abstention with doctrines of jurisdiction to avoid expanding equity's reach into the area of post-trial motions and notices of appeal. (9)

   The nature of time limits that restrict the federal courts' power to entertain certain matters lies at the source of the confusion of jurisdiction and abstention. These time limits generally include the deadlines for filing post-trial motions and notices of appeal. (10) The purpose of these deadlines--helping to facilitate the transfer of the case from the trial court to the appellate court--tempts courts to deem them jurisdictional. This transfer of power cannot properly be the rationale for deeming requirements jurisdictional, however, because jurisdictional requirements are not Platonic forms awaiting discovery, but limitations expressly set by Congress on the courts' power to adjudicate claims. (11) The tension between the supposed 'Jurisdictional significance" of post-trial deadlines and the fact that the modern deadlines are fixed by rule rather than statute has forced courts to blur the definition of 'Jurisdictional." Despite the Court's attempts to clearly define the term, (12) it continues to be used to mask judicial policy decisions instead of representing congressional restrictions on, or grants of, power.

   The Supreme Court's recent foray into the use of the term "Jurisdictional" for such post-trial deadlines (13) comes much closer to a proper definition, but it fails to account for the role of rulemaking following the passage of the Rules Enabling Act. (14) Most of the key provisions governing post-trial motions (15) and notices of appeal (16) are contained either entirely in the rules or in a mixture of rules and statutes. (17) By using the term "Jurisdictional" to describe both the post-trial and notice-of-appeal deadlines, the Supreme Court has at times removed key issues of finality from the ambit of both the courts and, arguably, the rules committees, (18) creating a vacuum of authority and unnecessarily rigid requirements. Congress, having already delegated the power to promulgate rules of procedure to the rulemakers, has shown little interest in filling this gap and has not independently altered the post-trial-motion and notice-of-appeal requirements for civil actions since the passage of the Rules Enabling Act. (19) The Court's efforts, however, have ignored this basic fact.

   This Comment argues that the Court has removed an important part of procedure from the control of both the rulemakers and courts by deeming certain litigation deadlines 'jurisdictional." In so doing, it has contradicted the intent of Congress in passing the Rules Enabling Act. The combination of a presumption that a requirement is non-jurisdictional with an extension of principles of equity into the area of post-trial motions and notices of appeal would allow for a more just procedure for challenging a judgment. Allowing equitable exceptions while still deferring to the rulemakers on broader issues of policy would restore the approach that the Supreme Court took following the passage of the Rules Enabling Act yet maintain some fairness for litigants. (20) Part I of this Comment contends that the term "jurisdictional" originated to refer only to grants of, or limitations on, the federal courts' power to adjudicate claims passed by Congress. Part I.A summarizes the pre-Rules Enabling Act cases that defined the impact of labeling a requirement "jurisdictional." Part I.B.1 examines the adoption and early amendment of the Civil Rules and finds that the rulemakers themselves did not have a clear definition of the limitations on their own power, particularly their ability to alter jurisdictional limitations. Part I.B.2 argues that the definition of the term "Jurisdictional" became ambiguous as requirements traditionally set by statute were contained in rules and made subject to equitable exceptions. Part I.B.3 recounts the Court's efforts to restore the definition of the term "jurisdictional" to a congressional limitation on federal courts' adjudicatory power. Part I.B.4 contends that the recent case of Bowles v. Russell (21) expresses a definition of "Jurisdictional" that mirrors that of the pre-Rules Enabling Act cases but that applies the term to a system of court-created rules and corresponding statutes with unnecessarily harsh results for litigants.

   Part II argues that although the Court now defines the term "Jurisdictional" to correspond to the pre-Rules Enabling Act conception and provides analytical clarity to the term's meaning, the Court erroneously applies a presumption that statutory time limits are jurisdictional. By adopting such a presumption, the Court limits the ability of the rulemakers and Congress to collaboratively develop rules of procedure. This Part also argues that between the Rules Enabling Act and Bowles, the Court properly recognized the collaborative origin of the post-trial deadlines but improperly labeled them jurisdictional.

   Part III summarizes the current status of many post-trial or notice-of-appeal deadlines and describes the confusing and arbitrary distinctions that undercut the Court's attempt to clarify when a deadline is jurisdictional. It also argues that the Court's approach in Bowles, if taken to its logical conclusion, could result in invalidation of a provision in Appellate Rule 4(a) providing an extension of the deadline to cross-appeal in civil cases and a provision in Appellate Rule 5 governing permissive appeals because the provisions could violate the limitations of the Rules Enabling Act.

   Part IV recommends solutions to clarify the status of post-trial and notice-of-appeal deadlines. The Court should find statutory deadlines nonjurisdictional by default unless Congress clearly intended otherwise, as it has for other statutory requirements. In addition, Congress should repeal a statute that merely codifies the provisions of Appellate Rule 4 because it...