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Look at it practically. As a lawyer who wants to know whether a filing deadline is inflexible, where do you go for authority? Read the rule that establishes the time? Rely on U.S. Supreme Court authority that says you can take the judge’s word on it? Go look to a statute to see if the rule is a “statutory time constraint”? Believe it or not, in Bowles v. Russell, 127 S. Ct. 2360 (2007), the U.S. Supreme Court said “go look at the statute.” That less-than-obvious instruction sends lawyers down an obscure trail that ends up at a rabbit hole, because technically the statute the Bowles majority looked at did not apply. Keith Bowles, in an Ohio prison for 15 years to life, filed a habeas petition. The district court denied it, but did not give him notice of the entry of its order. Within the time allowed by Fed. R. App. P. 4(a)(6), his lawyer got notice of the order and asked for a 14-day extension of his time for appeal. The district court, in an order that did not indicate when it had been entered, told Bowles he had until Feb. 27, 2004, to appeal. The lawyer filed the notice then. That, however, turned out to be 17 days after entry of the district court order, not 14 days. His notice of appeal was too late. The competing authorities First, there is the rule. Fed. R. App. P. 26(b), adopted in 1967, says that “the court may not extend the time” to file a notice of appeal, “except as authorized by Rule 4.” In other words, because Bowles did not satisfy the requirements of Rule 4(a)(6), his notice was no good. The 6th U.S. Circuit Court of Appeals said, “tough luck, Mr. Bowles.” Next, there is the court decision. Bowles petitioned the Supreme Court for relief under a “unique circumstances” doctrine the Warren Court invented in the 1960s. It excused a late-filed notice when the appellant had mistakenly relied on a filing time erroneously approved by a district judge. Thompson v. INS, 375 U.S. 384 (1964). The virtue of the rarely invoked “unique circumstances” doctrine was its ambiguity and its ability to right obvious wrongs. Because the rules say that the district court may not depart from them and extend the time, judges seldom attempt to do that. But when a judge did so and misled the lawyer, the doctrine saved the client’s case and prevented the lawyer from being sued for malpractice. But the five-member Supreme Court majority embraced a third standard, a “statutory time constraint” test. Neither reliance on the district judge nor reliance on Supreme Court precedent was good enough for the majority. Oddly ignoring Rule 26(b), the majority discarded Thompson and said Bowles’ ability to appeal depended on whether the limits in Rule 4(a)(6) were a “statutory time constraint.” Because of the unusual circumstance that Congress, when it approved Rule 4(a)(6) in 1996, adopted a similarly-worded statute, 28 U.S.C. 2107(c), the majority said that the court could not make an exception to the rule. Reliance on the statute, it said, would promote “clarity.” The most effective way for the court to be clear, however, would have been to enforce Rule 26(b). Instead, all the justices seemed to say, contrary to Rule 26(b), that they would be willing to make an exception to a time filing requirement if the time limit were, in the majority’s language, not statutory but “rule-based,” or, in the words of Justice David Souter’s dissent, “claims processing” in nature. When and how any of these amorphous exceptions would apply, however, is anyone’s guess. Seeming abdication of authority But even worse, none of the justices seemed to understand that they promulgate the rules and, absent congressional disapproval, the rules that they promulgate trump prior statutes. 28 U.S.C. 2072(b). Congress has even given the court control over the jurisdictional question of when and how an appeal can be taken. See 28 U.S.C. 1292(e), 2072(c), Advisory Committee Note to Fed. R. App. P. 1. Despite these powers, the majority opinion closes with an observation that Congress could give the court the authority to “excuse compliance” with Section 2107. But the court already has that authority. More particularly, in 2005, the court amended Rule 4(a)(6) for other reasons, so it technically now trumps the prior Section 2107 on which the majority relied. Excuse me, justices, but lawyers just want to know when they have to comply with a time limit and when they do not. If the court could not stand the useful ambiguity of the narrow “exceptional circumstances” doctrine, it should have just enforced Rule 26(b). Leave academic distinctions to the academics. Write the rules so that they explain when compliance is mandatory and when it is not. Don’t give us ephemeral doctrinal divisions that make the result in the next filing deadline compliance case anybody’s guess. Luther Munford is a partner in the Jackson, Miss., office of Phelps Dunbar, where he works in the general litigation practice group.

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