Posts Tagged ‘jurisdictionality’

I’ve finally been able to review the transcript of today’s oral arguments in the healthcare litigation. The federal government’s position on the Anti-Injunction Act appeared to make it through today’s oral arguments with fewer dings than the positions of the amicus curiae and the challengers. The government’s position appears attractive to the Justices because adopting it would enable them to reach the merits without throwing too big of a wrench into the general machinery of tax enforcement. The broader theories advanced by the challengers would pose such a threat, while adopting the amicus curiae’s position would not allow the Supreme Court to reach the merits at this time. The federal government’s position is legally convoluted, but its narrow scope apparently covers many legal blemishes.

The amount of time spent on the jurisdictionality of the provision surprised me. An effect of the apparent division on the Court with respect to that issue may be to render more attractive the federal government’s position that the Act is inapplicable. As the Solicitor General’s response to questioning by Justice Ginsburg revealed, the Court need not decide whether the Anti-Injunction Act is jurisdictional if the Court concludes that it is simply inapplicable to this challenge to Section 5000A.

In part for reasons explored in this post from last October, I was surprised that Chief Justice Roberts characterized Helvering v. Davis as the “biggest hurdle” facing the amicus curiae’s claim that the AIA is jurisdictional. As Justice Breyer and Justice Scalia pointed out in their questioning, Davis was a suit in which the remedy sought was ordering the corporation not to pay the tax. It was not a suit restraining the assessment or collection of a tax even though the United States intervened as a defendant.


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Judge Duncan, joined by Judge Motz, wrote the majority opinion earlier this week in United States v. Martin affirming the criminal forfeiture of a Mercedes and gobs of cash.

Although agreeing on some issues, the panel split in resolving the argument that “the district court was without jurisdiction to order the criminal forfeiture of their property after sentencing and the entry of judgments.” Judge Duncan’s opinion addresses this issue largely through application of the Supreme Court’s decision in Dolan v. United States, 130 S.Ct. 2533 (2010), a recent case addressing the consequences of a missed deadline:

Appellants correctly note that the district court neither referenced forfeiture in sentencing Appellants, nor included final orders of forfeiture in their judgments. In fact, the district court failed to enter the preliminary order of forfeiture until after it entered judgments and did not enter a final order of forfeiture until months later. Appellants argue that by missing the deadline set in Rule 32.2, the district court lost jurisdiction to enter orders of forfeiture and to amend the judgments to
include the orders of forfeiture.

Although Rule 32.2, as it existed in 2004, required a district court to finalize forfeiture orders at sentencing and include them in a final judgment, it did not set forth the consequences that would flow from missing that deadline. The Supreme Court, however, has recently provided guidance in an analogous context. Following this guidance, we conclude that missing the deadline set in Rule 32.2 does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so  long as the sentencing court makes clear prior to sentencing that it plans to order forfeiture.

In Dolan v. United States, 130 S. Ct. 2533 (2010), the Court examined a statute that set forth a deadline without specifying a consequence, and provided an analytical construct that is applicable here. There, the district court ordered the defendant, as part of his sentence, to pay restitution to the victim of his crime. Id. at 2537. The governing statute provided, “the court shall set a date for the final determination of
the victim’s losses, not to exceed 90 days after sentencing.” 18 U.S.C. § 3664(d)(5). It was undisputed both that the defendant was on notice that the district court would order restitution and that the district court missed the deadline to order restitution and failed to include an order of restitution in the defendant’s judgment. Dolan, 130 S. Ct. at 2538.

Judge Gregory dissented from the majority’s holding regarding the criminal forfeiture:

Not a single case, published or unpublished, has done what today’s majority does: it holds that even if a punishment of forfeiture is not discussed at sentencing or ordered in judgment, a defendant can still be subject to that punishment if she has notice that such punishment may be ordered.

It is undisputed that the district court did not enter a preliminary order of forfeiture before sentencing and judgment. Nor were proper remedial actions, such as amendment of the sentence pursuant to Rule 35, timely pursued under the Federal Rules of Criminal Procedure. Because the appellants’ sentences became final for purposes of Rule 32.2 before the district court entered the preliminary order of forfeiture, I would hold that the district court did not have authority to enter the preliminary and final orders of forfeiture in 2007 and the amended judgments in 2010, and therefore the district court’s orders and amended judgments should be vacated.

Dolan v. United States, which is the principal precedent that the panel argues about, had an unusual voting line-up. Justice Breyer wrote for a 5-4 majority, joined by Justice Thomas, Justice Ginsburg, Justice Alito, and Justice Sotomayor. Chief Justice Roberts authored a dissent, joined by Justice Stevens, Justice Scalia, and Justice Kennedy.

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Earlier this week, the Fourth Circuit released an unpublished per curiam opinion in Zeno v. United States that affirms the dismissal of claims under the FTCA and state law. The Fourth Circuit held that the FTCA claims were filed late and that the state claims were barred by collateral estoppel. The panel that issued the per curiam opinion consisted of Judges Duncan and Agee, and Senior Judge Keith (of the Sixth Circuit).

One part of the ruling that may have benefited from additional elaboration was the discussion of the dismissal of the FTCA claims. The district court dismissed the FTCA claims for lack of subject-matter jurisdiction upon concluding that the plaintiffs alleged only intentional torts. The Fourth Circuit did not address this basis of the district court’s opinion, but instead affirmed on the alternative ground that the claims were filed too late. The panel treated this late filing as a defect in subject-matter jurisdiction. By doing so, the panel avoided the need to address whether the federal government’s motion to dismiss for untimeliness, filed just one week before oral argument, was itself untimely.

The Fourth Circuit relied on circuit precedent, Gould v. United States, 905 F.2d 738 (4th Cir. 1990) (en banc), that treats filing outside of the FTCA statute of limitations as a jurisdictional defect. The Gould decision, however, predates a series of cases in the past several years in which the Supreme Court has reconsidered the “jurisdictionality” of various rules.

I have not undertaken extensive independent research, but this analysis by Adam Bain (Senior Counsel, Environmental Torts Section, Torts Branch, Civil Division, United States Department of Justice) indicates that, as of November 2010, the circuits were split on the jurisdictionality of the FTCA statute of limitations. The closest on-point Supreme Court precedent appears to be John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008). In John R. Sand, the Supreme Court held that the statute of limitations for bringing claims against the United States in the United States Court of Federal Claims was jurisdictional.

It very well could be that a thorough analysis of the continuing viability of Gould in light of intervening Supreme Court jurisdictionality precedent  (or even some quick research identifying a controlling precedent containing such analysis) would reveal that the panel’s decision to treat the FTCA statute of limitations as jurisdictional was correct. But the casual invocation of Gould appears to be too quick.

It is obviously much easier, as an academic observer, to suggest that more analysis would have been helpful, than it is to decide, as a judge, how much analysis to provide. But when a court of appeals affirms on alternate grounds, and particularly when the decision on the alternate ground lets the government off the hook for a late-filed claim of untimeliness, an in-depth analysis would appear to be particularly warranted. Because those more familiar with the case could have had many reasons for concluding otherwise, I flag the jurisdictionality issue more for the purpose of bringing attention to the issue going forward than to second-guess this particular decision looking backward.

An examination of this issue by the Fourth Circuit may be warranted in an appropriate case. A quick search as I was writing this post revealed a thorough discussion of the jurisdictionality of the FTCA statute of limitations in an opinion by Magistrate Judge Auld of the Middle District of North Carolina issued this past Friday in Smith v. United States. The issue in that case is the availability of equitable tolling, not waiver or forfeiture by the government through an untimely raising of the statute of limitations, but the “jurisdictionality” characterization is important to both analyses. Guidance from the Fourth Circuit on this issue could have obviated the need for such an extensive legal analysis.


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