Jurisdictional Prescriptions, Nonjurisdictional Processing Rules, and Federal Appellate Practice: The Implications of Kontrick, Eberhart & Bowles
28 Pages Posted: 13 Mar 2007 Last revised: 30 Jul 2008
In the recent cases of Kontrick v. Ryan, Eberhart v. United States, and Bowles v. Russell, the Supreme Court addressed the critical distinction between two kinds of mandatory timing prescriptions: one that directly governs a federal court's subject-matter jurisdiction, and one that merely governs a court's administration of a proceeding over which its subject-matter jurisdiction is not in doubt. While noncompliance with the former will deprive the court of jurisdiction to adjudicate the proceeding, noncompliance with the latter, which the Court has colloquially described as an inflexible claim-processing rule, will result in a litigant's forfeiture of the opportunity to raise a timeliness challenge once the court has adjudicated the proceeding on the merits.
This Article seeks to address the implications of the three cases in question for at least two types of timing prescriptions routinely confronted by federal appellate litigants. The first concerns the initiation of an appeal as of right. Although the traditional understanding was that the relevant timing restrictions were jurisdictional regardless of the nature of the underlying proceeding or the status of the appellant, the Court has since confirmed that this understanding no longer pertains to appeals initiated by criminal defendants because the governing timing restrictions are not prescribed by statute. Accordingly, the government's failure to object to a defendant's appeal on timeliness grounds prior to its adjudication on the merits will result in a forfeiture of that objection.
The second timing prescription concerns the filing in civil proceedings of certain post-judgment motions that routinely precede an appeal from the judgment. The requirements for the timely filing of such a motion, like the requirements for the timely filing of appeal as of right, had long been regarded as jurisdictional prerequisites. But because those restrictions are not prescribed by statute, they are now properly understood as mere processing rules that are subject to forfeiture by a litigant who fails to object on timeliness grounds before the district court's adjudication of the motion on the merits.
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