How to determine what is and what is not a jurisdictional limit has been a recurring theme before the Court. In an early case, Irwin v. Department of Veterans Administration (1990), the Court held that a statutory deadline to file a lawsuit against a federal agency in a Title VII action was a nonjurisdictional limit. In Bowles v. Russell (2006), however, the Court held that the statutory deadline for filing a notice of appeal in a civil case under 28 U.S.C. § 2107 was jurisdictional. At issue in Henderson is whether the 120-day deadline to file a “notice of appeal†from a final decision of the Department of Veterans Affairs to the Veterans Court, an Article I federal court, is jurisdictional.
At oral argument, the Justices (with Justice Kagan recused) tested both parties but, in the end, seemed most concerned about finding a clear and defensible way to distinguish Bowles.
Lisa Blatt, representing the petitioner, began by comparing the veterans statute to the Social Security context, but she quickly faced questions from Justice Scalia, who pointed out that the Social Security statute used the term “civil action†to represent judicial review, whereas the veterans statute used the term “notice of appeal.â€Â Blatt responded that “there is nothing inherently jurisdictional about the word ‘appeal,†but that may not have satisfied Scalia, who had pointed out that Bowles “was a nice, clear case†that said “if it’s a limit on appeal, it’s jurisdictional.â€
Picking up where Justice Scalia left off, Justice Sotomayor pressed Blatt to articulate a rule that would distinguish Bowles. Blatt responded that the deadline to file a notice of appeal in a criminal case is not jurisdictional, and so the rule had to be that other factors, such as context, determine whether Congress intended an appellate deadline to be jurisdictional. Justice Alito then expressed concern that such a case-by-case determination would erode clarity, but Blatt countered that clarity was not a significant concern because only four statutes use the term “notice of appeal.â€
Later, Blatt attempted to further distinguish Bowles, explaining that the deadline in § 2107 contained exceptions for good cause and excusable neglect, whereas the deadline in the veterans statute had no exceptions. Congress, she said, could not have intended veterans to be treated less favorably than ordinary litigants. At that, Justice Scalia jumped back in to ask whether Blatt was proposing that all appellate deadlines without exceptions were nonjurisdictional, and Blatt retreated, saying that each appellate deadline’s own context was important.
Assistant to the Solicitor General Eric Miller, arguing for the government, led with Bowles, but he was immediately challenged by the Chief Justice, who framed Bowles as a court-to-court deadline, while the veterans deadline was an agency-to-court deadline. Justice Ginsburg also seemed to pick up on that distinction. But Miller responded that the Court in Stone v. INS (1995) deemed jurisdictional the deadline for petitioning for review from the Board of Immigration Appeals to federal court. Justice Ginsburg then countered that the intra-agency process in immigration cases is highly adversarial, in stark contrast to the intra-agency process for veterans.
Justice Breyer then spoke for the first time. He questioned why Congress would want to give two savvy, well-financed litigants who already had one full day in federal court the opportunity to get an extension of their appellate deadlines under § 2107, while at the same time depriving unrepresented veterans, who were trying to reach court for the first time, of all excuses for missing their appellate deadlines. The Chief Justice seemed persuaded by this contrast, particularly given the statistics that veterans usually prevail when they seek review in federal court. Justices Ginsburg and Kennedy also seemed persuaded by this distinction.
The likelihood that the government would prevail seemed to decrease even further when Justice Scalia wondered what other cases “would be swept up into a rule that we adopted here, that not all limitations on appeal time are jurisdictional.â€Â Justice Breyer also seemed to forecast reversal when he asked, “So if a ruling against you here were to encompass a ruling under most review of agency action, would that be such a terribly unworkable thing?â€Â Miller conceded that he did not know if it would be unworkable, at which point Justice Ginsburg asked, “Why wouldn’t it be a bright clear line if we said: Court to court, Bowles controls; agency to court, Bowles does not control?â€Â Miller responded that such a rule would conflict with Stone, but none of the Justices seemed persuaded that Stone could carry the day for the Government.
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