546 US 12 Eberhart v United States

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EBERHART v. UNITED STATES

on petition for writ of certiorari to the united
states court of appeals for the seventh circuit

No. 04—9949. Decided October 31, 2005

On the last day available for post-trial motions after petitioner’s conviction
for conspiring to distribute cocaine, he moved for, inter alia, a new
trial, raising a single ground for relief. Nearly six months later, he
raised two additional grounds in a “supplemental memorandum.” The
District Court cited all three grounds in granting his motion. On appeal,
the Government argued, for the first time, that the District Court
had abused its discretion because Federal Rule of Criminal Procedure
33(b)(2) provides that any new trial motion “grounded on any reason
other than newly discovered evidence must be filed within 7 days after
the verdict or finding of guilty,” and Rule 45(b)(2) provides that courts
“may not extend” that time “except as stated” in Rule 33 itself. The
Seventh Circuit reversed, finding that the District Court had lacked
jurisdiction to grant a new trial. It relied on United States v. Robinson,
361 U. S. 220, and United States v. Smith, 331 U. S. 469, but expressed
some misgiving that those cases had been undermined by Kontrick
v. Ryan, 540 U. S. 443, in which this Court construed Federal Rules
of Bankruptcy Procedure paralleling Rules 33 and 45 to be nonjurisdictional
claim-processing rules that may be forfeited if not properly
raised.

Held: Because the time prescriptions in Rules 33 and 45 are nonjurisdictional,
claim-processing rules, the Government forfeited its untimeliness
defense by failing to raise it until after the District Court had reached
the merits. It is implausible that the Bankruptcy Rules construed in
Kontrick can be claim-processing rules, while virtually identical Rules
of Criminal Procedure can deprive federal courts of subject-matter jurisdiction.
Nothing in Rules 33 and 45 or in this Court’s cases requires
such a dissonance. This result does not require the Court to overrule
Robinson or Smith, which did not address the effect of untimely arguments
in support of a motion for new trial when, as here, the district
court is still considering post-trial motions and the case has not yet been
appealed. Although its disposition was in error, the Seventh Circuit
was prudent in adhering to its understanding of precedent while expressing
grave doubts in light of Kontrick.

Certiorari granted; 388 F. 3d 1043, reversed and remanded.

Per Curiam

Per Curiam.

Federal Rule of Criminal Procedure 33(a) allows a district
court to “vacate any judgment and grant a new trial if the
interest of justice so requires.” But “[a]ny motion for a new
trial grounded on any reason other than newly discovered
evidence must be filed within 7 days after the verdict or
finding of guilty, or within such further time as the court sets
during the 7-day period.” Rule 33(b)(2). This deadline is
rigid. The Rules provide that courts “may not extend the
time to take any action under [Rule 33], except as stated” in
Rule 33 itself. Rule 45(b)(2). The Court of Appeals for the
Seventh Circuit has construed Rule 33’s time limitations as
“jurisdictional,” permitting the Government to raise noncompliance
with those limitations for the first time on appeal.
388 F. 3d 1043, 1049 (2004). However, there is “a critical
difference between a rule governing subject-matter jurisdiction
and an inflexible claim-processing rule.” Kontrick v.
Ryan, 540 U. S. 443, 456 (2004). Rule 33 is an example of
the latter. We grant the petition for certiorari and the motion
for leave to proceed in forma pauperis, and reverse the
judgment of the Seventh Circuit.

I

Petitioner Ivan Eberhart was convicted of one count of
conspiring to distribute cocaine. On the last day available
for post-trial motions, he moved for judgment of acquittal or,
in the alternative, for a new trial. That motion raised a single
ground for relief–an alleged flaw in a transcript that
had been published to the jury. Nearly six months later,
petitioner filed a “supplemental memorandum” supporting
his motion. Two additional grounds appeared in that filing–
admission of potential hearsay testimony into evidence,
and the District Court’s failure to give a so-called “buyerseller
instruction” to the jury. 388 F. 3d, at 1047—1048.
Rather than arguing, however, that the untimeliness of the
supplemental memorandum barred the District Court from

Per Curiam

considering the issues it raised, the Government opposed it
on the merits.

The District Court granted the motion for a new trial, citing
all three grounds raised by petitioner. The judge concluded
that “ ‘none of these concerns standing alone or in
pairing would cause me to grant a new trial,’ ” but that taken
together, they “ ‘persuade me that the interests of justice
require a new trial.’ ” Id., at 1048. The judge also predicted
that “ ‘a new trial will quite likely lead to another
conviction.’ ” Ibid.

On appeal, the Government pointed to the untimeliness of
petitioner’s supplemental memorandum, and argued that the
District Court had abused its discretion in granting a new
trial based on the arguments that the memorandum had
raised. The Court of Appeals reversed the grant of a new
trial, finding that the District Court had lacked jurisdiction
to grant one. The Seventh Circuit observed: “The Supreme
Court has held that Rule 45(b)’s prohibition on extensions of
time is ‘mandatory and jurisdictional.’ ” Id., at 1049 (quoting
United States v. Robinson, 361 U. S. 220, 229 (1960), and
citing United States v. Smith, 331 U. S. 469, 474, n. 2 (1947)).
Based on Robinson and Smith, the Seventh Circuit explained,
“ ‘[w]e have previously emphasized that [Rule 33’s]
7-day period is jurisdictional, and that the court is without
jurisdiction to consider even an amendment to a timely new
trial motion if it is filed outside the seven day period, absent
a timely extension by the court or new evidence.’ ” 388

F. 3d, at 1049 (quoting United States v. Washington, 184 F. 3d
653, 659 (CA7 1999)).

The Court of Appeals did, however, express some misgiving.
After describing the holding of Kontrick, it commented
that “[t]he reasoning of Kontrick may suggest that
Rule 33’s time limits are merely inflexible claim-processing
rules that could be forfeited if not timely asserted.” 388

F. 3d, at 1049. It concluded, however, that even if Kontrick
had undermined Robinson and Smith, “we are bound to fol

Per Curiam

low them until expressly overruled by the Supreme Court.”
388 F. 3d, at 1049 (citing Agostini v. Felton, 521 U. S. 203,
237 (1997)).

II

In Kontrick, we determined that defenses made available
by the time limitations of Federal Rules of Bankruptcy
Procedure 4004 and 9006 may be forfeited. 540 U. S., at
458—460. They are not “jurisdiction[al],” but are instead
“claim-processing rules,” that may be “unalterable on a
party’s application” but “can nonetheless be forfeited if the
party asserting the rule waits too long to raise the point.”
Id., at 456. In Kontrick, the debtor responded on the merits
to a creditor’s untimely objection to his discharge. He did
not raise the untimeliness issue, and the court resolved the
merits in favor of the creditor. On motion for reconsideration
and on appeal, the debtor raised the argument that
Rules 4004 and 9006 “have the same import as provisions
governing subject-matter jurisdiction.” Id., at 455. We rejected
this assertion and found that the debtor had forfeited
the timeliness argument.

The Rules we construed in Kontrick closely parallel those
at issue here. Like a defendant wishing to move for a new
trial under Federal Rule of Criminal Procedure 33, a creditor
wishing to object to a debtor’s discharge in Chapter 7 liquidation
proceedings has a set period of time to file with the
court (measured, in the latter context, from “the first date
set for the meeting of creditors”). Fed. Rule Bkrtcy. Proc.
4004(a). If a creditor so moves, “the court may for cause
extend the time to file a complaint objecting to discharge.”
Rule 4004(b). And using language almost identical to Federal
Rule of Criminal Procedure 45(b)(2)’s admonition that
“[t]he court may not extend the time to take any action under
Rules 29, 33, 34, and 35, except as stated in those rules,”
Bankruptcy Rule 9006(b)(3) states that “[t]he court may enlarge
the time for taking action under Rules 1006(b)(2),

Per Curiam

1017(e), 3002(c), 4003(b), 4004(a), 4007(c), 8002, and 9033, only
to the extent and under the conditions stated in those rules.”

It is implausible that the Rules considered in Kontrick can
be nonjurisdictional claim-processing rules, while virtually
identical provisions of the Rules of Criminal Procedure can
deprive federal courts of subject-matter jurisdiction. Nothing
in Rules 33 or 45 or our cases requires such a dissonance.
Moreover, our most recent decisions have attempted to
brush away confusion introduced by our earlier opinions.
“Clarity would be facilitated,” we have said, “if courts and
litigants used the label ‘jurisdictional’ not for claimprocessing
rules, but only for prescriptions delineating the
classes of cases (subject-matter jurisdiction) and the persons
(personal jurisdiction) falling within a court’s adjudicatory
authority.” Kontrick, 540 U. S., at 455. We break no new
ground in firmly classifying Rules 33 and 45 as claimprocessing
rules, despite the confusion generated by the
“less than meticulous” uses of the term “jurisdictional” in
our earlier cases. Id., at 454.

The Seventh Circuit correctly identified our decisions in
Smith and Robinson as the source of the confusion. 388

F. 3d, at 1049. Since we have not “expressly overruled”
them, it held, petitioner’s appeal had to be dismissed. Ibid.
Those cases, however, do not hold the limits of the Rules to
be jurisdictional in the proper sense that Kontrick describes.
See 540 U. S., at 455. We need not overrule Robinson or
Smith to characterize Rules 33 and 45 as claim-processing
rules.

In Smith, the District Judge rejected a Rule 33 motion for
a new trial, and the conviction was affirmed on appeal. 331

U. S., at 470. After the defendant was taken into custody,
the District Judge changed his mind. Purporting to act
under the authority of Rule 33, he issued an order vacating
his earlier judgment and granting a new trial. Id., at 471.
Although we observed in a footnote that “[t]he policy of the
Rules was not to extend power indefinitely but to confine

Cite as: 546 U. S. 12 (2005) 17

Per Curiam

it within constant time periods,” id., at 473—474, n. 2, that
observation hardly transforms the Rules into the keys to
the kingdom of subject-matter jurisdiction. Rather, as we
emphasized in the text, the District Judge could not use Rule
33 to sidestep a pre-existing basic principle of judicial
process–that once a final judgment is issued and the court
of appeals considers a case, a district court has no power to
act on it further. This was a consequence, however, not of
the Rule, but of the Rule’s failure to alter prior law. Smith
does not address the effect of untimely arguments in support
of a motion for new trial when, as here, the district court is
still considering post-trial motions and the case has not yet
been appealed.

Nor does Robinson address that circumstance. Defendants
were 11 days late in filing their notices of appeal under
(what was then) Rule 37. The Government responded not
by contesting the merits of the appeal, but by moving to
dismiss on the basis of untimeliness. 361 U. S., at 221. The
Court of Appeals determined that if the District Court found
that the untimely notices of appeal sprang from “excusable
neglect,” it could allow the appeals. On remand, the District
Court so found. Id., at 222. We held that the Court
of Appeals was wrong in having failed to dismiss under Rule
45(b). Id., at 229—230. Robinson is correct not because the
District Court lacked subject-matter jurisdiction, but because
district courts must observe the clear limits of the
Rules of Criminal Procedure when they are properly invoked.
This does not mean that limits like those in Rule
33 are not forfeitable when they are not properly invoked.
Despite its narrow and unremarkable holding, Robinson has
created some confusion because of its observation that
“courts have uniformly held that the taking of an appeal
within the prescribed time is mandatory and jurisdictional.”
Id., at 229 (emphasis added). Indeed, we used the
phrase “mandatory and jurisdictional” four times in the opinion.
And subsequent opinions have repeated this phrase,

Per Curiam

attributing it directly or indirectly to Robinson. See, e. g.,
Hohn v. United States, 524 U. S. 236, 247 (1998); Budinich v.
Becton Dickinson & Co., 486 U. S. 196, 203 (1988); Griggs v.
Provident Consumer Discount Co., 459 U. S. 56, 61 (1982)
(per curiam); Browder v. Director, Dept. of Corrections of
Ill., 434 U. S. 257, 264, 271—272 (1978). But see Houston v.
Lack, 487 U. S. 266, 269 (1988) (reversing an order dismissing
an appeal as jurisdictionally out of time when “[n]either the
District Court nor respondent suggested that the notice of
appeal might be untimely”); Thompson v. INS, 375 U. S. 384,
386 (1964) (per curiam) (permitting appeal, when petitioner
conceded that post-trial motions were served late, in part
because petitioner “relied on the Government’s failure to
raise a claim of untimeliness when the motions were filed”).

As we recognized in Kontrick, courts “have more than occasionally
used the term ‘jurisdictional’ to describe emphatic
time prescriptions in rules of court.” 540 U. S., at 454. See
also ibid. (citing Robinson as an example of when we have
been “less than meticulous” in our use of the word “jurisdictional”).
The resulting imprecision has obscured the central
point of the Robinson case–that when the Government
objected to a filing untimely under Rule 37, the court’s duty
to dismiss the appeal was mandatory. The net effect of
Robinson, viewed through the clarifying lens of Kontrick, is
to admonish the Government that failure to object to untimely
submissions entails forfeiture of the objection, and to
admonish defendants that timeliness is of the essence, since
the Government is unlikely to miss timeliness defects very
often.

Our more recent cases have done much to clarify this
point. For instance, in Carlisle v. United States, 517 U. S.
416 (1996), we held that a court may not grant a postverdict
motion for a judgment of acquittal that is untimely under
Federal Rule of Criminal Procedure 29(c) when the prosecutor
objects. As we pointedly noted in Kontrick, our holding
in Carlisle did not “characterize [Rule 29] as ‘jurisdic

Per Curiam

tional.’ ” 540 U. S., at 454—455. See also Scarborough v.
Principi, 541 U. S. 401, 413—414 (2004) (relying on Kontrick
to hold that time limitations on applications for attorney’s
fees under the Equal Access to Justice Act, 28 U. S. C.
§ 2412(d)(1), did not implicate subject-matter jurisdiction).

After Kontrick, it is difficult to escape the conclusion that
Rule 33 motions are similarly nonjurisdictional. By its
terms, Rule 45(b)(2) has precisely the same effect on extensions
of time under Rule 29 as it does under Rule 33, and as
we noted in Kontrick, Federal Rule of Criminal Procedure
45(b) and Bankruptcy Rule 9006(b) are both “modeled on
Federal Rule of Civil Procedure 6(b).” 540 U. S., at 456,

n. 10. Rule 33, like Rule 29 and Bankruptcy Rule 4004, is a
claim-processing rule–one that is admittedly inflexible because
of Rule 45(b)’s insistent demand for a definite end to
proceedings. These claim-processing rules thus assure relief
to a party properly raising them, but do not compel the
same result if the party forfeits them. Here, where the
Government failed to raise a defense of untimeliness until
after the District Court had reached the merits, it forfeited
that defense. The Court of Appeals should therefore have
proceeded to the merits.

We finally add a word about the approach taken by the
Court of Appeals. Although we find its disposition to have
been in error, we fully appreciate that it is an error shared
among the circuits, and that it was caused in large part by
imprecision in our prior cases. Our repetition of the phrase
“mandatory and jurisdictional” has understandably led the
lower courts to err on the side of caution by giving the limitations
in Rules 33 and 45 the force of subject-matter jurisdiction.
Convinced, therefore, that Robinson and Smith
governed this case, the Seventh Circuit felt bound to apply
them, even though it expressed grave doubts in light of
Kontrick. This was a prudent course. It neither forced
the issue by upsetting what the Court of Appeals took to be
our settled precedents, nor buried the issue by proceeding

Per Curiam

in a summary fashion. By adhering to its understanding of
precedent, yet plainly expressing its doubts, it facilitated
our review.

***
The judgment of the Seventh Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.

It is so ordered.

546 U.S. 12 - Eberhart v United States

546 US 12 Eberhart v United States

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