The U.S. Supreme Court’s 5-4 ruling in Bowles v. Russell, decided June 14, contains an important reminder for lawyers who handle appeals before the intermediate federal appellate courts: If an appeal is not filed within the time provided by federal statute, the appeal cannot be heard and decided on the merits.
In other words, the time for appeal set forth in the governing federal statutes is jurisdictional, meaning that unless an appeal is taken within the time allowed, a federal appellate court will be unable to issue a ruling on the merits of the case no matter how compelling the excuse for missing the deadline happens to be.
The excuse at issue in the Bowles case was about as compelling of an excuse as can be envisioned. That case reached the federal courts as a habeas corpus action in which a man convicted of murder in the Ohio state court system was seeking federal habeas relief. After the federal district court denied relief, the petitioner filed a timely motion for reconsideration under a provision of the Federal Rules of Civil Procedure that postpones the start of the 30-day period in which to appeal until the motion for reconsideration is decided.
For whatever reason, the habeas petitioner did not receive timely notification of the federal district court’s entry of an order denying the motion for reconsideration. Instead, he learned of the denial of his motion about three months after the order denying the motion had been entered. By then, the original deadline for appeal had expired approximately two months earlier.
But all hope was not yet lost. The habeas petitioner asked the federal district court to reopen the time in which to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6) and 28 U.S.C. � 2107(c). Rule 4(a)(6), in accordance with that federal statutory provision, allows a federal district court, if certain specified conditions are satisfied, to “reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered.”
The federal district court agreed with the habeas petitioner that it was appropriate to reopen the time for appeal, but the federal district judge who signed the order specified that the notice of appeal had to be filed within 17 days of the entry of the order. The order was entered on Feb. 10, 2004, the deadline for appeal specified in the order was Feb. 27, and the habeas petitioner filed his notice of appeal on Feb. 26, 2004.
Unfortunately, both the federal statute and Rule 4(a)(6) only permitted a federal district judge to allow an appeal to be filed within 14 days after the entry of an order reopening the time for appeal, and so the actual deadline for appeal was Feb. 24, 2004, a deadline that the habeas petitioner failed to meet due to the federal district judge’s misleading statement in the order that the deadline was instead Feb. 27.
In December 2005, a unanimous three-judge panel of the Sixth U.S. Circuit Court of Appeals held that the habeas petitioner’s appeal had to be dismissed for lack of appellate jurisdiction because the 14-day reopened period in which to appeal could not be extended or ignored despite the federal district judge’s misleading order suggesting that an additional three days existed in which to file a timely appeal.
So why did the Bowles case result in a 5-4 ruling from the U.S. Supreme Court instead of a 9-0 affirmance? To begin with, the Court’s four more liberal justices understandably viewed the result as horribly unfair. For example, at one point Justice David H. Souter’s dissenting opinion states, “unless every statement by a federal court is to be tagged with the warning: ‘Beware of the Judge,’ Bowles’ lawyer had no obligation to go behind the terms of the order he received.”
Also, in recent years the Supreme Court has attempted to curtail the sort of rules that are considered truly “jurisdictional” and, therefore, not subject to being relaxed by a court in the interests of justice. Yet, as the Bowles ruling demonstrates, the statutorily prescribed time in which to appeal to a federal appellate court from the ruling of a federal district court remains in the truly “jurisdictional” category, and, thus, cannot be enlarged no matter how compelling the circumstances. The ruling in Bowles v. Russell serves as a stark reminder that when it comes to the time in which to appeal, lawyers must be ever vigilant to make sure that an appeal is filed within the time that federal law provides. Lawyers must be familiar with the deadlines that federal statutes and the Federal Rules of Appellate Procedure establish and must remember that those deadlines are not subject to being extended even if a federal trial court judge purports to do so.
Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. You can access his appellate Web log at http://howappealing.law.com.