Over at the ABA’s website, Jones Day partner Hashim M. Mooppan has posted a short and extremely interesting piece entitled “A Possible Lifeline for Jurisdictionally Untimely Federal Appeals.” Here is the opening:
What should an appellate lawyer do when he or she has missed the deadline for filing a civil appeal in federal court but with reasonable justification for the error? Most people think that there is only one answer to that question—call the malpractice insurer—because courts have held that the deadline is jurisdictional and thus not subject to any equitable exceptions.
This article proposes that appellate courts and practitioners have overlooked another potential answer: A court lacking jurisdiction to decide the merits of an appeal nevertheless has the equitable discretion to dispose of the appeal by vacating the judgment below with instructions to reenter a fresh judgment and thereby restart the clock for filing a new timely appeal. This appellate remedy of equitable vacatur is a settled practice of the Supreme Court in the narrow context of its direct-appeal jurisdiction. And there is no reason in law or logic why the practice cannot be more broadly employed by the circuit courts of appeals.
And here is most of the conclusion:
Appellate courts and practitioners have largely forgotten about the practice of equitable vacatur since Congress repealed most of the Supreme Court’s direct-appellate jurisdiction in the 1970s and 1980s. But the need for that remedy is more timely than ever in light of the Court’s decision in Bowles and its implementation by the courts of appeals. Thus, should you ever find yourself in the unfortunate position of having missed the civil-appeal deadline, it is definitely worth trying to grab the potential lifeline of equitable vacatur if you have a reasonable justification for your mistake
Mooppan’s proposal is of great practical and theoretical interest. [Disclosure: I know Mooppan and have previously been his coworker at Jones Day.]
From a practical standpoint, Mooppan’s argument suggests that strict appellate jurisdictional rules might generally be subject to a kind of equitable escape hatch. Moreover, this escape hatch is rooted in a long line of Supreme Court cases that appear to have issued relief based on the equitable vacatur theory that Mooppan has discovered. Nor is this a situation where old cases are radically out of line with current jurisprudence at the Court. Quite the contrary, the broad power on which Mooppan relies–the power of equitable vacataur to dispose of cases in the interests of justice–has a statutory basis in 28 USC 2106 and has been extolled in other contexts by formalist jurists such as Justice Scalia (for whom Mooppan clerked). So this is an argument that seems to be very plausible indeed.
The theoretical rewards here are also considerable. In effect, Mooppan is saying that critics of Bowles and other formalist opinions on jurisdiction have been looking for flexibility in the wrong place. (Here as elsewhere, the law may adjust in one place in order to and mitigate the harmful consequences of changes elsewhere.) According to Mooppan, the needed flexibility doesn’t lie in the law of jurisdiction but rather in the law of interstitial federal remedies. So this is an argument that, if accepted, would greatly soften what has generally seemed like rigidly harsh formalism in the area of federal appellate jurisdiction. This result might make jurisdictional formalism seem more attractive–or, at least, less outrageous.
Mooppan’s argument does also raise some questions. His capacious understanding of equitable vacatur might be bounded in various ways by other jurisdictional and statutory principles. There may also be reasons for the Supreme Court to possess backstop equitable powers that lower courts lack. Hopefully these and other questions will arise promptly as courts follow Mooppan’s lead in contemplating the role of equitable vacatur as a response to Bowles and other harsh jurisdictional rules.
First posted on Prawfs.