Publications
Bowles v. Russell (06-5306), Mission of India to the United Nations v. City of New York (06-134) and Davenport v. Washington Education Ass’n (05-1589)
Greetings, Court Fans!
The Court came back Thursday with three more opinions in its effort to clear out the docket by the end of the month. We’re still waiting on the biggest remaining decisions – the race and school assignment cases in Seattle and Louisville – but hopefully these will tide you over until those come down.
First up, in the category of somewhat dull but decidedly important cases, Bowles v. Russell (06-5306) announced a procedural rule with big implications. Backing away from language in a number of recent decisions calling time limits mandatory but not jurisdictional (i.e., they can be waived or excused for good cause), the Court ruled that the time limits for filing an appeal truly are jurisdictional in nature. After challenging his conviction on direct appeal, Bowles filed a habeas corpus petition with the district court, which was denied. Bowles failed to appeal the denial within 30 days, but later moved to reopen the time period for filing an appeal pursuant to 28 U.S.C. § 2107(c) and FRAP 4(a)(6), which permit the district court to reopen the filing period for an additional 14 days from the date of entry of its order in certain circumstances. The district court granted the motion, but “inexplicably” gave Bowles 17 days instead of 14. Bowles filed his notice of appeal on the 16th day. Despite the fact that Bowles relied on the district court’s order, the Sixth Circuit found his notice of appeal untimely and dismissed. The Court, splitting 5-4 along now-familiar lines, affirmed. The Thomas-led majority emphasized that because the 14-day time limit was created by statute (as opposed to judicial rule), it is a substantive limit on courts’ authority. Since Congress can limit the categories of cases federal courts can hear, it likewise can “forbid[] federal courts from adjudicating an otherwise legitimate ‘class of cases’ after a certain period has elapsed from final judgment.” Because the time limit here is jurisdictional, there is no place for a “unique circumstances” exception, as was recognized in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962) (per curiam) and Thompson v. INS, 375 U.S. 384 (1964) (per curiam). So Bowles’ appeal was correctly dismissed, and Harris Truck Lines and Thompson are overruled to the extent they purport to allow an exception to a jurisdictional time limit.
A visibly worked-up dissent (Justice Souter, joined by Justices Ginsburg, Stevens and Breyer) responded: “It is intolerable for the judicial system to treat people this way. . . .” For the last four years, the Court has made a concerted effort to clear up confusion about the use of the term “jurisdictional” (which has “many, too many, meanings”) and has explained that time limits generally are not jurisdictional, but should be treated as mandatory claims-processing rules; generally enforceable, but waivable and excusable if circumstances warrant it. Souter chastised the majority for “not even admit[ting] that we deliberately changed courses, let along explain[ing] why it is now changing courses again,” with severe consequences for individual litigants. Even when the Court did “thoughtlessly call time limits jurisdictional, [it] did not actually treat them as beyond exemption to the point of shrugging at the inequality of penalizing a party for relying on what a federal judge has said to him.” The dissent would adhere to the view that time limits contained in statutes are not jurisdictional unless Congress explicitly says so, and would have allowed Bowles’ appeal to proceed.
Next, in Permanent Mission of India to the United Nations v. City of New York (06-134), the Court held 7-2 that the Foreign Sovereign Immunities Act does not immunize a foreign government from suits concerning tax liens on property it holds to house employees. India and Mongolia both housed some of their employees on certain floors of their Missions to the United Nations, and had been refusing to pay New York City property taxes on those portions even though they were not exclusively used for diplomatic offices or ambassadorial residences. New York eventually took them to court, where the District Court and Second Circuit agreed with the City that the suits fell within the “immovable property” exception to the FSIA, which denies immunity to foreign government where “rights to immovable property are in issue.” India and Mongolia argued that this exception was limited to questions of ownership or possession, but the Court disagreed, in an opinion by Justice Thomas. First, the statute is not expressly limited to questions of ownership or possession, but covers “rights,” including the right to convey; a tax lien would inhibit this right, so it is implicated by the exception. Second, although the United States once adhered to a near-absolute view of sovereign immunity, in the 1950s it joined the majority of other countries in adopting the so-called “restrictive view,” whereby immunity was recognized for sovereign acts but not private acts – and property ownership is not an inherently sovereign function. Third, international practice at the time of FSIA’s codification supported the City.
Justice Stevens dissented, with Justice Breyer joining in, on the view that if Congress wanted to exempt suits over tax liens, it would have said so; the “breadth and vintage” of the background rule favoring immunity was such that it seemed unlikely the FSIA’s drafters intended to carve out an exception for statutes aimed at delinquent taxpayers. They pointed out that just about any dispute – from slip-and-falls to landlord-tenant disputes – could be covered to property liens, and that as a result this new exception could swallow the immunity rule. They also noted the government’s strong support of the Missions, which they found persuasive.
Finally, in Davenport v. Washington Education Ass’n (05-1589), the Court held that the First Amendment does not prevent states from requiring public-sector unions to get affirmative authorization from nonmembers before spending their agency fees for election-related purposes. Washington, like many states, authorizes “agency-shop” arrangements between unions and government employers, whereby the union can charge a fee to nonmember employees who are nevertheless represented by the union in collective bargaining. This prevents free-riding on the union by nonmembers, but at the same time it forces nonmembers to give to unions as a condition of employment – which can be particularly tricky when the union gets politically active. Washington law provides that a public-sector union cannot use an individual’s agency fees for election-related purposes without his affirmative consent to the specific expenditure, but the Washington Supreme Court held that this statute violated the union’s First Amendment rights, based on language in past Court cases on the general collection and spending of agency fees to the effect that nonmembers’ “dissent cannot be presumed.”
The Court vacated and remanded, in an opinion by Justice Scalia. The Court began by noting that an agency-fee arrangement was “extraordinary” in that it basically allowed a private entity to tax government employees. Washington did not have to authorize an agency-fee relationship with public sector unions at all, so it was counterintuitive that its “modest” restriction on the electoral use of agency fees ran afoul of the First Amendment. The Washington court had misconstrued the Court’s past cases, which concerned the minimum rules governing a union’s collection and spending of fees, not the ceiling on government restrictions on their access to fees at all. Because a union has no constitutional right to agency fees, the First Amendment was not implicated by a default rule of affirmative consent. The Court also rejected the union’s argument that the statute was a restriction on how it spent “its” money, relying on campaign-finance cases, on the ground that the union had agency fees (as opposed to its own members’ dues, which were not covered by the statute) solely because the government forced nonmembers to pay. Where the government effectively subsidizes speech, it is valid for the government to enact some viewpoint-neutral, if ultimately content-based, restrictions on how the funds are used. Justice Breyer, along with the Chief and Justice Alito, agreed with the main holding but did not join this last part of the opinion, on the ground that the union raised this argument for the first time before the Court; they would have let the lower courts address the argument first.
The Court comes back Monday with yet more decisions; until then, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
