Henderson v. Shinseki - Oral Argument - December 06, 2010 Page 17

Henderson v. Shinseki

Media for Henderson v. Shinseki

Audio Transcription for Opinion Announcement - March 01, 2011 in Henderson v. Shinseki

Audio Transcription for Oral Argument - December 06, 2010 in Henderson v. Shinseki

Eric D. Miller:

--Yes.

The Immigration and Nationality Act at issue in Stone has no provisions for extensions.

The Hobbs Act has no provisions for extensions.

And many of the various agency-specific statutes that I mentioned earlier don't have any provisions for extensions.

And although this Court hasn't ruled on them, Petitioner hasn't identified any decision from any court of appeals holding that any of those statutes is not jurisdictional.

So there really is, as recognized in Bowles, a uniform rule regarding time limits for the taking of appeals and proceedings like appeals, writs of certiorari, and petitions--

Antonin Scalia:

What other acts do you think would be swept up into a rule that we adopted here, that not all limitations on appeal time are jurisdictional?

The Hobbs Act cases; what else?

Eric D. Miller:

--The -- which ones would be swept up, I suppose, would depend on what the Court were to say in distinguishing this case.

But there is the Hobbs Act; the--

Antonin Scalia:

Well, I'm sure we would say these are veterans, and I'm sure there are other categories of sympathetic people who might come under the Hobbs Act.

Eric D. Miller:

--There -- there might well be, and I think that's why one of the virtues of the rule in Bowles is that it provides clear guidance to Congress.

And in that respect it's much preferable to a rule that statutes of -- or statutes--

Antonin Scalia:

But you haven't answered my question.

Eric D. Miller:

--Oh--

Antonin Scalia:

The Hobbs Act--

Eric D. Miller:

--Well, the Hobbs Act, the Federal Power Act, the Communications Act, various EPA orders are reviewed under their specific -- each statute has its own review procedure.

Stephen G. Breyer:

All these agency matters are matters where there has never been judicial input.

This is review of an agency action.

The agency takes an action.

No judge has looked at this.

And the first time that you look at the rulemaking by the agency under the Hobbs Act, I guess, is when you go file it in the -- in the court.

So if a -- if a ruling against you here were to encompass a ruling under most review of agency action, would that be such a terribly unworkable thing?

Eric D. Miller:

Well, I -- I suppose the Court could come up with a rule.

Whether that would prove to be workable, I -- I don't know.

But I think -- I guess what I would say about that is that given that there is an inherent arbitrariness to any filing deadline and, therefore, there is to some degree an inevitable arbitrariness in any system of exceptions to the filing deadline, I'm not--

Ruth Bader Ginsburg:

Why wouldn't it be a bright, clear line if we said: Court to court, Bowles controls; agency to court, Bowles does not control?

That would be a clear line.

Eric D. Miller:

--It would be clear, but it would be contrary to Stone.

It would be contrary to decades of uniform holdings from courts of appeals under all the other statutes.