COVID-19: As Courts Relax Filing Rules, Beware of Jurisdictional Deadlines

As state and federal courts react to the novel threat of COVID-19, litigants must stay on top of what has changed and might still change—and what cannot. For instance, with each day comes news of another court taking steps to limit in-person appearances. On Monday, March 16, the Supreme Court of the United States canceled its oral argument sitting at the end of March, something it had not done in more than a century.

Another way that courts have responded to the virus has been to relax filing deadlines. The chief justice of the Supreme Court of Georgia, for example, issued an order on Saturday, March 14, that broadly suspended all deadlines for a month. Those deadlines include, but are not limited to, statutes of limitation and the time within which to seek an appeal. On the federal side, the US Court of Appeals for the Second Circuit extended for 21 days “all filing dates and other deadlines set out in the Federal Rules of Appellate Procedure, the Court’s Local Rules, and the Court’s orders.” The Supreme Court of the United States issued an order on Thursday, March 19, extending the time to file petitions for a writ of certiorari from 90 days to 150 days.

But litigants should not let these suspensions lull them into a false sense of security.

First, not all state and federal courts have reacted uniformly to the crisis. Parties to a lawsuit should consult the resources of any court in which they have deadlines—monitoring the court’s website and calling the clerk’s office if necessary. Individual judges or panels may also countermand broader orders issued by their courts or chief judicial officers.

Second, courts lack the power to toll some deadlines. As discussed below, federal courts in particular have limited ability to change or reopen “jurisdictional” deadlines that apply to litigants planning an appeal. Indeed, some federal appellate courts suspending deadlines in the last week have expressly limited the extensions to nonjurisdictional dates.

Jurisdictional Deadlines

When a rule is jurisdictional, a litigant’s failure to comply with it “deprives a court of all authority to hear a case.”¹ As a result, if the litigant misses a jurisdictional deadline, the court has no choice but to enforce the limitation.² In the federal system, the Supreme Court has recognized a presumption in favor of the judiciary’s ability to equitably toll statutory deadlines—to pause a deadline when a litigant “‘has pursued his rights diligently but some extraordinary circumstance’ prevents him from meeting a deadline.”³ But that presumption is rebutted when a deadline is jurisdictional. A court “has no authority to create equitable exceptions to jurisdictional requirements.”⁴

In recent years, the Supreme Court has sought to “bring some discipline” to the distinction between jurisdictional deadlines and other time limits.⁵ The Court has “urged that a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”⁶ The rule must be statutory and not court-created.⁷ And “the Government must clear a high bar to establish that a statute of limitations is jurisdictional.”⁸ Nevertheless, cases continue to be litigated over whether “traditional tools of statutory construction … plainly show that Congress imbued a procedural bar with jurisdictional consequences.”⁹

One widely applicable deadline that the Supreme Court has determined to be jurisdictional is the time for filing a notice of appeal in a federal civil case.¹⁰ The power of a federal district court to extend or reopen that time period is strictly limited by statute. Consistent with this understanding, the Second Circuit’s order extending deadlines expressly exempted “notice[s] of appeal, petition[s] for review or other document[s] that confer[] jurisdiction on the Court.”

Another important jurisdictional deadline is that for filing a petition for a writ of certiorari with the Supreme Court in civil cases.¹¹ By statute, such a petition must be filed within 90 days unless extended by a justice for no more than 60 additional days.¹² As noted above, the Supreme Court on March 19 already extended the deadline for all petitions to 150 days, i.e., by the maximum 60 days. Though the Court did not say as much in its order, it now lacks the power under its own precedent to grant any further extension for the filing of a petition in civil cases.¹³

A third deadline the Supreme Court has flagged is the 60-day time limit in the Hobbs Act for filing a petition for review of certain final agency decisions. The Act vests the federal courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” an enumerated list of agency decisions.¹⁴ In a 2011 opinion, the Supreme Court noted that lower courts have “uniformly” held the time limit to be jurisdictional.1¹⁵

As the courts work their way through this public health crisis, they will undoubtedly continue to work with the public and exercise flexibility where possible. But there are limits on what the courts are empowered to do, and those facing litigation deadlines must study those limits carefully.

Key Considerations for Clients

• Check if courts in which you have deadlines have issued COVID-19 guidance. Review the court’s website often and call the clerk’s office if necessary.
• Consider whether you have upcoming jurisdictional deadlines that the court lacks power to toll, especially notices of appeal and petitions for certiorari in civil cases in federal court.

Notes

1. United States v. Kwai Fun Wong, 575 U.S. 402, 408–09 (2015).

2. Id. at 409.

3. Id. at 408 (quoting Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)).

4. Bowles v. Russell, 551 U.S. 205, 214 (2007).

5. Henderson v. Shinseki, 562 U.S. 428, 435 (2011).

6. Id.

7. Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16 (2017).

8. Kwai Fun Wong, 575 U.S. at 409.

9. Id. at 410.

10. See Bowles, 551 U.S. at 214 (“Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”).

11. Id. at 211–13 (citing Federal Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88, 90 (1994)).

12. See 28 U.S.C. § 2101(c).

13. Missouri v. Jenkins, 495 U.S. 33, 45 (1990) (“This 90-day limit is mandatory and jurisdictional. We have no authority to extend the period for filing except as Congress permits.”).

14. 28 U.S.C. § 2342.

15. Henderson, 562 U.S. at 437