Jurisdictional Deadlines in the Wake of Kontrick and Eberhart: Harmonizing 160 Years of Precedent

• Publication year: 2022

40 Creighton L. Rev. 181. JURISDICTIONAL DEADLINES IN THE WAKE OF KONTRICK AND EBERHART: HARMONIZING 160 YEARS OF PRECEDENT

Creighton Law Review

Vol. 40

E. KING POOR(fn*)

"'Jurisdiction' . . . is a verbal coat of too many colors."(fn1) - Justice Felix Frankfurter

I. INTRODUCTION

Deadlines and time limits(fn2) are woven into every stage of litigation. They begin a lawsuit, move it forward, and eventually, bring it to a close. Some deadlines are flexible and can be extended simply by an agreement of the parties or permission of the court. Yet other deadlines are different. They mark the beginning or ending of significant parts of litigation. Because of that, the law has long recognized that the goals of finality and evenhandedness do not allow these time limits to be extended by the parties or overlooked by the court. Judges and lawyers from the mid-nineteenth century to the early twenty-first century have called these deadlines "jurisdictional." A classic example is the time to appeal. In 1982, the United States Supreme Court capsulated what had been common knowledge for generations of judges and lawyers: "It is well settled that the requirement of a timely notice of appeal is 'mandatory and jurisdictional.'"(fn3) And as recently as 2003, the Supreme Court stated unequivocally that it was "accepted fact that some time limits are jurisdictional. . . ."(fn4)

But this precedent may no longer be "well-settled" and "accepted fact" as a result of two recent decisions by the Supreme Court. In 2004, the Court held in Kontrick v. Ryan(fn5) that the time period in the Federal Rules of Bankruptcy Procedure for objecting to a discharge in bankruptcy was not "jurisdictional," as a majority of lower courts had held.(fn6) Yet to reach that conclusion, the Court went beyond the bankruptcy rules and stated that the term "jurisdictional" should not be used to describe deadlines.(fn7) Rather, it noted that the term should be confined only to "subject matter jurisdiction" or "personal jurisdiction."(fn8)

Courts responded to Kontrick in different ways. Some continued to describe deadlines as "jurisdictional" without mentioning Kontrick. Others recognized that Kontrick may have fundamentally altered the concept of jurisdictional deadlines, yet were unwilling to apply it without further guidance from the Supreme Court.

In 2005, the Court picked up where it left off in Kontrick and decided Eberhart v. United States.(fn9) In Eberhart, the Court considered the seven-day period to request a new trial under the Federal Rules of Criminal Procedure. Historically, lower federal courts had uniformly held that this time limit was jurisdictional. But in Eberhart, the Court expanded the rationale of Kontrick and concluded that this deadline was not jurisdictional and could be "forfeited" if the government failed to object promptly to an untimely motion.(fn10) At the same time, the Court recognized that its own "imprecision" in using the term "jurisdictional" had caused confusion over the years.(fn11) Thus, with Kontrick and Eberhart, the Court cast a cloud of uncertainty over something as fundamental as how the law treats deadlines.

This Article first traces the history of jurisdictional deadlines, from the mid-nineteenth century to the early twenty-first century. This long history shows a deeply embedded line of authority holding that certain time limits are "jurisdictional" or sometimes "jurisdictional in nature." Reference to a deadline as jurisdictional has always had a special meaning that has been commonly understood among bench and bar. A jurisdictional deadline could not be modified, either by the parties' actions or inactions, and once a jurisdictional deadline expired, a court lost the "power" to extend or overlook it. In fact, courts have raised such deadlines sua sponte at any time, even after a hearing on the merits. Over the past century and a half, in the federal system alone, many thousands of decisions have described deadlines of all types as "jurisdictional" or "jurisdictional in nature" with this commonly understood meaning.

After recounting the history of jurisdictional deadlines, this Article examines how the Kontrick and Eberhart decisions have affected this entire body of law. First, doing away with jurisdictional deadlines altogether would be a sea change in the law at every level. Indeed, it would mean the overruling of thousands of decisions that judges and lawyers have taken for granted and relied upon. But there are good reasons not to rush to this conclusion. Basic principles of stare decisis require that change of such a dramatic nature be made not by implication, but explicitly and on a case-by-case basis, and only after weighing the reasons for overturning settled precedent. In fact, in Eberhart itself, the Court stated the court of appeals had followed a "prudent course" by holding the deadline was jurisdictional based on the Court's own repeated and unambiguous precedent describing it as such.(fn12) Moreover, for over a century and a half, Congress has not intervened to alter authority that unmistakably deems some deadlines as "jurisdictional" and thus has tacitly endorsed it. And therefore, if that were to be changed, it would be for Congress and not the Court to do so. In sum, because jurisdictional deadlines have for generations been deeply rooted in all levels of the law, it is premature to conclude that they no longer exist anywhere. But all the same, after Kontrick and Eberhart, what was once settled has become, in the words of the Court of Appeals for the Tenth Circuit, a "muddled area."(fn13)

While the future of jurisdictional deadlines remains generally uncertain, in Kontrick and Eberhart, the Court held that certain deadlines once considered jurisdictional should now be called "claim-processing rules."(fn14) Yet claim-processing rules are not simply another name for non-jurisdictional deadlines; they are something entirely different. Non-jurisdictional rules could always be waived by the parties; claim-processing rules cannot. In Kontrick, the Court drew a distinction between "waiver" and "forfeiture." Before Kontrick, the distinction between waiver and forfeiture was generally limited to criminal appeals. In criminal appeals, if a claim was "waived," that is, intentionally relinquished, it could not be reviewed. But if it was unintentionally "forfeited," it could still be evaluated for "plain error."(fn15) In Kontrick, the Court applied this distinction for the first time to the realm of deadlines and stated that claim-processing rules could not be waived, but could be forfeited.(fn16) In doing so, the Court created deadlines that were entirely different from familiar non-jurisdictional time limits, which make no such distinction and could always be waived.

This Article examines the problems created by this new species of deadlines. In particular, claim-processing rules allow parties to do by the back door - that is, overlook a deadline by their silence - what they could not do by express stipulation. Allowing parties to modify deadlines indirectly when they could not do so directly is difficult to justify, particularly for rules founded on the policies of finality and evenhandedness.

Replacing jurisdictional deadlines with claim-processing rules also poses another problem: courts can no longer raise untimely filings on their own. For if a claim-processing rule may be forfeited by the silence of a party, then it also follows that a court no longer has the ability - let alone what has been described as a "duty" - to raise an untimely filing as a matter of its jurisdiction.(fn17) Thus, a reviewing court may be required to decide an appeal weeks, months, or even years after the deadline for a notice of appeal has passed because none of the parties has raised it. As a result, courts will have lost control over their dockets, which historically has been unquestioned.

Criticism of jurisdictional time limits is nothing new. From the earliest days, courts have recognized that such deadlines are "technical" in that they do not decide a case on the merits. In fact, such deadlines may be raised at any time and may even undo a ruling on the merits. Yet despite this criticism, jurisdictional deadlines have remained an integral part of civil, criminal, and appellate procedure for a century and a half. As shown below, these deadlines have persisted not so much because judges have been "imprecise" as to the meaning of the term "jurisdictional." Rather, such deadlines were adopted intentionally to prevent litigants from altering them on their own - whether expressly or by silence - in order to promote clarity, consistency, and finality in a system of procedure. By establishing deadlines that parties could not modify, courts avoided the problems now created by claim-processing rules.

In the short time since Kontrick and Eberhart were decided, courts of appeal across the country have issued an increasing number of conflicting decisions as to whether several types of deadlines remain jurisdictional. This growing division of authority is a call for courts, and eventually, the Supreme Court, to examine closely why jurisdictional deadlines have been ingrained in the law for so long and what would be the consequences to a system of procedure if they were eliminated altogether.(fn18) Simply dismissing jurisdictional deadlines as the product of "imprecision" by...