Bowles, Keith v. Russell, Harry (Warden) (06/14/2007)

Question presented: Whether a federal appeals court acting on its own may dismiss under federal appellate procedural Rule 4-a-6, as too late an appeal that a District Court had authorized, out of the usual time limits but after the District Court had reopened the appeal time?

BY LEAH FABEL, MEDILL NEWS SERVICE

Some deadlines are fuzzy; some are strict. In a courtroom, always assume the latter.

Unfortunately for Keith Bowles, an Ohio man convicted of murder in 1999 and sentenced to 15 years to life in prison, his lawyers filed notice two days late for an appeal to his unsuccessful federal petition for habeas corpus. That is, two days late according to the law. According to a mistaken court order, Bowles' lawyers filed one day early.

Nearly eight years later, Bowles' case has reached the U.S. Supreme Court. The Court is being asked to decide whether an appellate court may, without action on the part of opposing counsel, dismiss an appeal which has been filed within the time limitations authorized by a district court, but outside of the limitations authorized by the rules.

The rule at issue, Rule 4(a)(6) of the Federal Rules of Appellate Procedure, outlines the conditions under which a district court may reopen time to file an appeal. Normally, an appeal must be filed within 30 or 60 days of the district court's decision, depending on the type of case. In unique circumstances, for instance a post office's failure to deliver the decision to the litigant, time to file an appeal can be reopened for a period of 14 days so long as a total of 180 days have not passed since the final decision.

On Feb. 10, 2004, an Ohio district court granted Bowles time to file an appeal. However, instead of ordering it to be filed by February 24, as the 14-day rule would dictate, the court inexplicably ordered it filed by February 27.

Relying on the district court's order instead of the 14 days they had requested, Bowles' lawyers filed his appeal on Feb. 26, 2004.

In December, 2005, the 6th Circuit dismissed Bowles' appeal for lack of jurisdiction, holding that "the 14-day period of Rule 4(a)(6) of the Federal Rules of Appellate Procedure is not susceptible to extension through mistake, courtesy, or grace."

"The federal courts are very protective of their jurisdictions," said Sarah Schrup, who, as director of Northwestern University Law School's appellate advocacy clinic, navigates courtroom policy daily. "[Time limits] seem like such a minor procedural issue, but [they are] really a major threshold issue. No party wants to put all the time into drafting the briefs only to be told that the court lacks jurisdiction."

Though she acknowledged that jurisdictional issues generally serve a good purpose, Bowles' case gives her pause: "It wasn't completely the litigant's error," Schrup said. "The district court gave a time that was incorrect and [Bowles] relied on that. The unfairness seems particularly acute because it was precipitated at the court level."

Kevin Russell highlighted that line of argument in his amicus brief for Bowles on behalf of the National Association of Criminal Defense Lawyers: "It is not unreasonable for a litigant to assume that the court will conform its orders to the requirements of the law, and that taking action permitted by court order will not result in the forfeiture of important rights, including the right of appeal," he wrote.

Bill Marshall, the Ohio special counsel scheduled to make oral arguments on behalf of the state, disagrees. "Deadlines mean deadlines, and the enforcement of deadlines is necessary for the judicial system to work," he said.

Marshall went on to say that certain deadlines are "jurisdictional with no exception."

"When you get to a jurisdictional timeline like this one you take it as absolutely mandatory," he said.

If the Supreme Court finds the appellate court's jurisdiction relies on rigid adherence to time limits, Bowles is without recourse. If time limits are considered to be in the more flexible category of claims-processing rules, in other words, the court's rules of the game, Bowles has a chance.

"We're saying this is not really a jurisdictional issue, but a claims-processing issue" said Paul Mancino III, a Cincinnati lawyer who helped write Bowles' petition for certiorari along with his father, lead counsel Paul Mancino Jr. "For a claims-processing issue, simply the granting of additional days is certainly something the court can do."

Furthermore, according to Bowles' lawyers, the state forfeited its objection to the timeliness of the appeal by waiting until "the eleventh hour" to bring it before the court. Although the state received a copy of the erroneous order in February, 2004, they did not object to it until April, 2005, in an appellate brief.

The state confronted Mancino's position in its brief in opposition to certiorari: "The rules implicated in the Bowles case combine to restrict the time in which a party may take an appeal to the court of appeals," it says. "The 6th Circuit observed that "these rules were part of legislation passed by Congress to limit the jurisdiction of federal appellate courts."

Regarding timeliness, Marshall said the state "acted as promptly as we were required to."

Russell believes "[the state] just didn't notice [the error]. But it's a general principle of law," he said, "that you can't raise an objection in the court of appeals that you could have and should have raised in the district court."

"But if it's a jurisdictional problem," Russell added, alluding to the case's core conflict, "then you can raise it at any time."

In their briefs, both sides cite case law they construe in their favor, including Eberhart v. U.S. (2005) and Kontrick v. Ryan (2004).

Both cases dealt with the timeliness of appeals. Eberhart concerned a tardy motion for a new trial; Kontrick concerned a tardy appeal. In both cases, the courts ruled that timeliness is not jurisdictional and objections to timeliness must be brought up at the time of the motion for appeal.

The state, in agreement with the 6th Circuit, found both cases to be irrelevant, claiming first that the state does not forfeit its argument that Bowles' appeal was untimely, and secondly that rules governing appellate procedure, unlike rules governing criminal procedure (Eberhart) and bankruptcy procedure (Kontrick), do determine jurisdiction.

Russell, in the amicus brief, argued otherwise: "That the time limits in Rule 4(a) govern the filing of a notice of appeal, rather than a bankruptcy complaint or a motion for a new trial, is of no significance. The time limits for filing a notice of appeal have never been referred to as jurisdictional in the rules or statutes that establish them, and the jurisdiction of the courts of appeals has always been expressly defined in separate provisions."

Both sides also cited Harris Lines v. Cherry Meat Packers (1962) and its progeny, cases which attempted to determine the standard for "unique circumstances" that would allow, for example, an extension of days to file an appeal. The state found Harris irrelevant because the case did not involve untimeliness. Bowles argued that Harris and its progeny support their claim that certain courtroom rules are flexible.

"What this all comes down to," Russell said, "is two different senses of how you have a fair system of government. On the one hand, you can have clear rules strictly enforced. On the other hand, and this is what we believe, you can have clear rules with some flexibility to deal with unusual circumstances."

On June 14, 2007, a divided Court dismissed Bowles’ appeal, ruling essentially that a deadline is a deadline.

“We have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature,” Justice Clarence Thomas wrote for the 5-4 majority. “Accordingly, we hold that petitioner’s untimely notice -- even though filed in reliance upon a District Court’s order -- deprived the Court of Appeals of jurisdiction.”

Thomas, who was joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Antonin Scalia, said Congress may intervene and relax the deadline if it so chooses.

But in a strongly worded dissent, Justice David Souter argued that the case merited an exception to the federal rule.

“It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch,” Souter wrote for the minority, which also included Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens.

“We have the authority to recognize an equitable exception to the 14-day limit, and we should do that here, as it certainly seems reasonable to rely on an order from a federal judge.”