The inequities of AEDPA equitable tolling: a misapplication of agency law.

Author:Atkins, Jonathan
Position:Antiterrorism and Effective Death Penalty Act of 1996 - III. Link v. Wabash Railroad and the Erosion of the Agency Theory in the Civil Context through Conclusion, with footnotes, p. 453-478
  1. Link v. Wabash Railroad and the Erosion of the Agency Theory in the Civil Context

    Before outlining the proposal in detail, it is instructive to summarize the genesis of the idea that clients must bear the risk of loss for their lawyers' mistakes because those lawyers act as their clients' agents. Not only does the original legal context in which this idea arose bear little resemblance to the postconviction context, but also courts have already begun to depart from the formal strictures of the agency framework in that original context. Yet they continue to adhere to it in the postconviction context, where it makes even less sense. This demonstrates the even more compelling need to reform the latter.

    Link v. Wabash Railroad, (103) decided by the Supreme Court in 1962, is the seminal case responsible for the modern-day understanding of lawyers as their clients' agents, (104) and it continues to represent that doctrine's harshest application. (105) The case does not concern equitable tolling, but it parallels what we see as the flaw in the Court's tolling jurisprudence. In Link, the Court affirmed the dismissal of a civil plaintiffs case for want of prosecution even though the lawyer--not the plaintiff-client--was responsible for the error.

    The facts of the case are as follows: A plaintiff sued in federal court, seeking to recover for personal injuries stemming from an automobile accident. (106) More than six years after the plaintiff brought suit, the court scheduled a pretrial conference to be held on a particular date at 1:00 PM in Hammond, Indiana, and notified counsel for each side. (107) Although the morning prior to the conference the plaintiff's counsel confirmed that he would be at the hearing the next day, at 10:45 AM on the day of the scheduled hearing, the plaintiff's counsel telephoned the judge's secretary to tell him that he was otherwise engaged in Indianapolis and would be unable to attend the hearing that afternoon. (108) The court, frustrated that plaintiff's counsel did not appear, sua sponte reviewed the case history, found that the plaintiff's lawyer had not stated any reasonable excuse for his nonappearance, and dismissed the action "for failure of the plaintiff's counsel to appear at the pretrial, for failure to prosecute this action." (109)

    The Supreme Court affirmed the lower court's dismissal of the suit. (110) Justice Harlan's majority opinion rejected "the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct impose[d] an unjust penalty on the client." (111) Instead, he invoked the idea that has since developed into the formalist agency regime, explaining that "[a]ny other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'" (112) Harlan cited several rationales for this principle: (1) because the plaintiff "voluntarily chose this attorney as his representative in the action," he could not "now avoid the consequences of the acts or omissions of this freely selected agent"; (113) (2) the client had a remedy against the lawyer in the form of a malpractice action for dismissal of the suit; (114) and (3) "keeping th[e] suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant." (115)

    In his dissent, Justice Black reacted to what he, by contrast, saw as the majority's undue (and unfair) quickness to "visit the sin of the lawyer upon his client," commenting that "there [was] no justification, moral or legal, for [the district court's] punishment of an innocent litigant for the personal conduct of his counsel." (116) Throughout his dissenting opinion, Black used language that resonates with the problems we have identified in utilizing the formalist agency regime in postconviction litigation. For example, although Black disagreed that the plaintiff's lawyer was solely responsible for the six-year delay as a matter of fact, he noted that, even assuming this was the case, it seemed "contrary to the most fundamental ideas of fairness and justice to impose the punishment ... upon the plaintiff who ... was simply trusting his lawyer to take care of his case as clients generally do." (117) To illustrate that such an outcome, stemming from a formalistic rather than a realistic application of agency law, ignored "the practicalities and realities of the lawyer-client relationship," Black gave the hypothetical example of a lawyer who asked for the court to dismiss her client's case:

    There surely can be no doubt that if the plaintiff's lawyer had gone into court without authority and asked the court to dismiss the case so as to bar any future suit from being filed, this Court would repudiate such conduct and give the plaintiff a remedy for the wrong so perpetrated against him. Or had the trial judge here, instead of putting an end to plaintiff's substantial cause of action, simply imposed a fine of several thousand dollars upon the plaintiff because of his lawyer's neglect, I cannot doubt that this Court would unanimously reverse such an unjust penalty. The result actually reached here, however, is that this Court condones a situation no different in fact from either of those described above. (118) Finally, Justice Black attacked the majority's conclusion that dismissal was warranted in order to clear the district court's docket and remove congestion. He noted that not only did the lower court accomplish exactly the opposite by spurring litigation over the dismissal, but also it "undercut[] the very purposes for which courts were created--that is, to try cases on their merits and render judgments in accordance with the substantial rights of the parties." (119)

    In the end, we would argue that Justice Black was correct in concluding that Link's holding "[was] not likely to stand out in the future as the best example of American justice." (120) Over time, lower courts have eroded the case's import considerably, and "[d]espite the bold and broad language of the Link opinion, the agency theory no longer enjoys unanimous support" in civil cases involving procedural default. (121) For example, the Third Circuit has "increasingly emphasized visiting sanctions directly on the delinquent lawyer, rather than on a client who is not actually at fault" in nonhabeas civil cases. (122) The Sixth Circuit has also, "[subsequent to Link, ... discouraged involuntary dismissals without prior notice [to the client]," (123) and the Fourth Circuit has recognized that "[w]hen the party is blameless and the attorney is at fault, ... a default judgment should ordinarily be set aside." (124) Other federal courts have marginalized the case by distinguishing it on its facts. For example, in Gutting v. Falstaff Brewing Corp. (125) and Jackson v. Baden, (126) the Eighth and Fifth Circuits, respectively, held that Link was not controlling where the lawyer's conduct was not so egregious as to be "inexcusable" (127) or was merely "negligent ... rather than 'intentional' or 'contumacious.'" (128) And state courts have not hesitated to reject it on state law grounds. (129)

    Collectively, these courts have replaced what they see as Link's inequitable and formulaic holding with more flexible and equitable frameworks to govern procedural default cases, similar to what we advocate in the postconviction context. For example, the Third Circuit now examines six factors to determine whether to dismiss a plaintiff's case for want of prosecution:

    (1) the extent of the party's personal responsibility, (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. (130)

    Further, in Dunbar v. Triangle Lumber & Supply Co., the Third Circuit created a procedural requirement of client notice before a district court can dismiss for want of prosecution. (131)

    Other circuits have applied similar rubrics, also reasoning that dismissal is a harsh sanction that ought to be used sparingly. (132) Under this line of reasoning, the greater "the lawyer's disregard of his obligation toward his client" relative to the client's own fault, the more the circumstances dictate that any sanctions should be imposed directly on the lawyer rather than on the client through dismissal of the case. (133) This means that, where a lawyer is completely to blame for a particular failure, courts consider it unjust to sanction the client (in effect) for the lawyer's failings through dismissal of the case. For example, where the delinquent lawyer has a record of "disinterest and incompetence" regarding this plaintiff, such as by failing to communicate with the client, the court may more easily deduce that a client "played no role in the derelictions of" his counsel (134) and so should not bear its consequences. Precisely the same logic should hold in habeas matters.

    Thus, in the civil procedural context at least, a variety of federal courts have endorsed something similar to our principled agency approach. Errors that really do begin and end with the lawyer--errors that occur outside the lawful scope of the agency relationship--redound to the lawyer and not to the client. An appropriate distribution of costs and benefits between the lawyer and client therefore ensues. Functionally speaking, the principled agency approach has largely replaced the formalist agency regime in the want-of-prosecution context despite the fact that the formalist regime was first developed precisely there.

    Although courts have continually moved...

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