The Lawletter Vol 36 No 10
The U.S. Supreme Court has been called on a number of times in recent years to decide whether a procedural rule is "jurisdictional." See Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011) (collecting cases). The question is important because once a procedural rule is labeled "jurisdictional," the court has no power even to consider granting relief, for any reason, from a failure to comply strictly with the rule's requirements. In Bowles v. Russell, 551 U.S. 205 (2007), for example, the Court held that the statutory limitation on the length of an extension of the time to file a notice of appeal in an ordinary civil case, 28 U.S.C. § 2107(c), is "jurisdictional," such that a party's failure to file a notice of appeal within that period cannot be excused based on equitable factors or on the opposing party's forfeiture or waiver of any objection to the late filing. 551 U.S. at 213-14.
The Court attempted in Henderson to provide some general guidance to lower courts in attempting to determine when a particular rule should be considered jurisdictional, but whether the Court succeeded is questionable. The Court indicated its general preference that so-called "claim-processing rules"—rules that "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times"—not be considered jurisdictional. 131 S. Ct. at 1203. But the quintessential claim-processing rules are filing deadlines, and, as Bowles makes clear, even filing deadlines can have jurisdictional consequences "if there is any 'clear' indication that Congress wanted the rule to be 'jurisdictional.'" Id. (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006)). The problem is that in trying to divine "Congress' likely intent," which is supposed to provide "helpful guidance for courts and litigants," "Congress . . . need not use magic words in order to speak clearly on this point." Id.As such, the Court undertook to draw a series of dubious distinctions between the rule at issue in Bowles and the rule under consideration in Henderson, which requires a veteran whose claim for federal benefits from the Department of Veterans Affairs ("VA") has been denied by the Board of Veterans' Appeals to file a notice of appeal to the U.S. Court of Appeals for Veterans Claims within 120 days after the date when the Board's final decision is properly mailed. 38 U.S.C. § 7266(a). The Government pointed out in Henderson that this statutory deadline is similar to the rule found to be jurisdictional in Bowles. In the end, however, the Court held that the VA rule is not jurisdictional based on the "singular characteristics of the review scheme that Congress created for the adjudication of veterans' benefits claims." Henderson, 131 S. Ct. at 1205. In particular, the Court noted the long-standing solicitude of Congress for veterans, which was reflected in other aspects of the statute containing the 120-day notice requirement. Id. Accordingly, the district court was directed to consider, on remand, exceptions to the rule, such as equitable tolling. See id. at 1206 & n.4. It remains to be seen, however, whether the case has any more far-reaching ramifications, given the unusual nature of the litigation process in cases adjudicated under the federal laws dealing with veterans' benefits, which "place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions." Id. at 1205 (internal quotation marks omitted).