There have been other Supreme Court opinions involving statutes containing a filing deadline in a sentence that also contains procedural requirements that certain administrative steps be taken before a petition or complaint may be filed.  In these cases, the Supreme Court has treated the administrative steps as jurisdictional, but treated the filing deadline not jurisdictional. 

In Weinberger v. Salfi, 422 U. S. 749, 763-764 (1975), the Court interpreted 42 U.S.C. § 405(g), the first sentence of which provides:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. 

The Supreme Court in Salfi wrote:

Section 405(g) specifies the following requirements for judicial review:  (1) a final decision of the Secretary made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision (or within such further time as the Secretary may allow); and (3) filing of the action in an appropriate district court, in general that of the plaintiff’s residence or principal place of business.  The second and third of these requirements specify, respectively, a statute of limitations and appropriate venue.  As such, they are waivable by the parties [read: not jurisdictional], and not having been timely raised below, see Fed. Rules Civ. Proc. 8(c), 12(h)(1), need not be considered here.  We interpret the first requirement, however, to be central to the requisite grant of subject-matter jurisdiction – the statute empowers district courts to review a particular type of decision by the Secretary, that type being those which are “final” and “made after a hearing.”

Id. at 763-764.  (In Boechler, the Supreme Court cited this passage from Salfi.  See 142 S. Ct. at 1499.)

A similar case is Sebelius v. Auburn Regional Med. Cntr., 568 U.S. 145 (2013) (interpreting 42 U.S.C. § 1395oo(a)), also cited by the Supreme Court in Boechler, 142 S. Ct. at 1499.  I quote from Auburn:

Amicus urges that the three requirements in [the single sentence of] § 1395oo(a) are specifications that together define the limits of the PRRB’s jurisdiction.  Subsection (a)(1) specifies the claims providers may bring to the Board, and subsection (a)(2) sets forth an amount-in-controversy requirement.  These are jurisdictional requirements, amicus asserts, so we should read the third specification, subsection (a)(3)’s 180-day limitation, as also setting a jurisdictional requirement.

Last Term, we rejected a similar proximity-based argument.

568 U.S. at 155. 

In Auburn, the Court did not contest the amicus’ argument that the conditions in subsections (a)(1) and (a)(2) are jurisdictional.

Further, if you think about Boechler, IRC 6330(d)(1) contains a jurisdictional grant, “(and the Tax Court shall have jurisdiction with respect to such matter)” that is preceded both by the apparent claim-processing requirements that there have been a notice of determination and a Tax Court petition.  The opinion is about whether the jurisdictional grant refers to (1) the notice of determination, (2) the petition, and (3) the filing deadline.  The Court opts for the holding that the jurisdictional grant does not clearly state that the filing deadline is jurisdictional.  The court thereby lets one conclude that it thinks the issuance of a notice of determination and the filing of a Tax Court petition are the jurisdictional prerequisites – though it does not say this explicitly.

There is nothing incongruous about a sentence containing multiple claim-processing rules, some of which are still going to be held jurisdictional.

IRC 7459(d) provides:

If a petition for a redetermination of a deficiency has been filed by the taxpayer, a decision of the Tax Court dismissing the proceeding shall be considered as its decision that the deficiency is the amount determined by the Secretary.  An order specifying such amount shall be entered in the records of the Tax Court unless the Tax Court cannot determine such amount from the record in the proceeding, or unless the dismissal is for lack of jurisdiction.

The Hallmark opinion concludes that, for two reasons, the existence of IRC 7459(d) requires the court to reject a reading of the IRC 6213(a) filing deadline as not jurisdictional.

First, “[n]on-jurisdictional dismissals of cases with untimely petitions would produce incongruous results.”  Slip opinion at p. 20. 

This surprising [res judicata] outcome [prohibiting subsequent refund suits] counsels against the non-jurisdictional construction of section 6213(a) not because it provokes sympathy for a taxpayer for whom this would be an unfavorable result but because it puts section 6213(a) and section 7459(d) at odds with each other and with the manifest purpose of the statutory regime. . . .

It is no answer to this anomaly to point out (as Hallmark does) that “if this unfortunate res judicata result were to happen, it would be a matter for Congress to consider altering by legislation”.  It is certainly correct that courts must not choose an interpretation because it brings about a desired outcome, and it is true that defects in a statute are for Congress to fix, not the courts.  But choosing desired outcomes is not the same thing as following the principles of statutory construction that counsel against choosing an interpretation that creates a conflict in the legislative regime (and that therefore would require Congress to then address the conflict by corrective legislation).

Id. at 21-22 (footnote and citation omitted).  (By the way, the Supreme Court’s recent precedent actually pushes courts to choose the outcome that filing deadlines are not jurisdictional – in an exception to the usual rule that courts should not favor either side’s interpretation.)

Second, “[a]pplying section 7459(d) only to dismissals other than those called for by section 6213(a) would contradict the actual history and intent of section 7459(d).”  Id. at 23.  The Hallmark opinion notes that the original predecessor of this provision did not appear in the Revenue Act of 1924 that created the Board of Tax Appeals, but that a version of this provision first appeared in § 906(c) of the Revenue Act of 1926, without accompanying legislative explanation.  The 1926 provision lacked the final phrase “or unless the dismissal is for lack of jurisdiction”.  The court agreed with Hallmark that there is also no committee report that explains why this jurisdictional exception was added in 1928.  Hallmark pointed out that there are a number of reasons that a Tax Court petition could be dismissed for lack of jurisdiction beyond late filing.  For example, a petition may be dismissed because the notice of deficiency was invalid because not sent to the taxpayer’s last known address or because the taxes had already been paid before the notice of deficiency was issued or because the taxpayer was in bankruptcy, so the bankruptcy stay prohibited a Board proceeding.   Excluding dismissals for late filing of the petition from jurisdictional dismissals would not render the jurisdictional dismissal exception of IRC 7459(d) superfluous.

But, the Hallmark opinion responded as follows:

What “jurisdiction[al]” circumstances did Congress address in making this amendment in 1928?  The obvious answer is that Congress addressed the very circumstance that the BTA had described in United Paper—i.e., “the Board determines that it has no jurisdiction” because “[t]he petition [was] not . . . filed within the time prescribed”.  We find no BTA opinion discussing the issue of sustaining a deficiency in a jurisdictional dismissal in connection with any jurisdictional issue other than the untimeliness of a petition (as in United Paper).  With reasonable confidence we also impute to Congress the knowledge that, as the BTA had reported since 1924, it was dismissing for “want of jurisdiction” where there was no valid NOD.  We see no reason to suppose that Congress ignored the actual activity of the BTA, left unsolved the timeliness-related conundrum described in United Paper, and instead amended the statute to address as-yet-unrealized difficulties in future cases that might involve lack of corporate capacity.  We do see, in the BTA’s appendices, dismissals for lack of jurisdiction because of pending bankruptcies and because taxes not assigned to the BTA were petitioned, and those dismissals, too, would fall within the “lack of jurisdiction” exception of section 906(c).  That these, too, involve “lack of jurisdiction” does not at all undermine the obvious congressional intent to address, as cases involving “lack of jurisdiction”, those that were being dismissed because they lacked the prerequisites of section 274(c) (sic; should be (a)) (now section 6213(a)), i.e., a valid NOD and – as in United Paper – a timely petition.

Id. at 27-28.

What’s this United Paper case about?  It is a 1926 opinion (4 B.T.A. 257) decided after Congress enacted § 906(c) of the Revenue Act of 1926 – the original predecessor of IRC 7459(d), but without the jurisdictional dismissal exception.  The taxpayer (!) in that case had filed a late deficiency petition and argued that under § 906(c), the Board was required to enter a decision upholding the deficiency set out in the notice.  The Board, however, refused, noting that, since 1924 it had been entering orders dismissing late-filed cases for lack of jurisdiction and it planned to continue that practice even during the years to which § 906(c) applied.

It seems to me, however, that United Paper undermines the Hallmark opinion’s conclusion that Congress intended in 1928 to fix a problem (inserting jurisdictional dismissal exceptions into the 1926 version of § 906(c)), when the Board had already concluded that § 906(c)’s requirement to enter a decision upholding the deficiency did not apply in the case of late-filed petitions, where the Board had been instead dismissing such cases (and planned to continue dismissing them) for lack of jurisdiction.  The Hallmark opinion basically argues that the 1928 amendment’s purpose was to fix a problem that the Board had already fixed with respect to late-filed petitions in United Paper in 1926.  Does that make the 1928 amendment superfluous to late-filed deficiency petition cases? 

However, in my view, even accepting for purposes of discussion that the Hallmark court has the better of this argument, the real question is whether the enactment of IRC 7459(d) – a provision that would possibly provide a strange result under the non-jurisdictional filing deadline interpretation – contributes enough statutory context to require a court to find that Congress made a clear statement in IRC 6213(a) that the filing deadline is jurisdictional.  This strikes me as an argument that cannot be maintained after Boechler.  Below is what Boechler said about the SG’s argument that the language in the injunctive provision of the CDP legislation (first enacted in 2000 at IRC 6330(e)(1)) could produce a strange result if the IRC 6330(d)(1) deadline to file a CDP petition (enacted in 1998) were not jurisdictional.  The Court found that the strange result was probably a point in favor of the SG’s interpretation of the filing deadline, but not enough to meet the clear statement exception. 

The Commissioner contends that a neighboring provision clarifies the jurisdictional effect of the filing deadline.  Section 6330(e)(1) provides that “if a [collection due process] hearing is requested . . . the levy actions which are the subject of the requested hearing . . . shall be suspended for the period during which such hearing, and appeals therein, are pending.”  To enforce that suspension, a “proper court, including the Tax Court,” may “enjoi[n]” a “levy or proceeding during the time the suspension . . . is in force,” but “[t]he Tax Court shall have no jurisdiction under this paragraph to enjoin any action or proceeding unless a timely appeal has been filed undern subsection (d)(1).”  § 6330(e)(1).

Section 6330(e)(1) thus plainly conditions the Tax Court’s jurisdiction to enjoin a levy on a timely filing under § 6330(d)(1).  According to the Commissioner, this suggests that § 6330(d)(1)’s filing deadline is also jurisdictional.  It would be strange, the Commissioner says, to make the deadline a jurisdictional requirement for a particular remedy (an injunction), but not for the underlying merits proceeding itself.  If that were so, the Tax Court could accept late-filed petitions but would lack jurisdiction to enjoin collection in such cases.  So if the IRS disobeyed § 6330(e)(1)’s instruction to suspend the levy during the hearing and any appeal, the taxpayer would have to initiate a new proceeding in district court to make the IRS stop.

We are unmoved—and not only because the scenario the Commissioner posits would arise from the IRS’s own recalcitrance.  The possibility of dual-track jurisdiction might strengthen the Commissioner’s argument that his interpretation is superior to Boechler’s.  Yet as we have already explained, the Commissioner’s interpretation must be not only better, but also clear.  And the prospect that § 6330(e)(1) deprives the Tax Court of authority to issue an injunction in a subset of appeals (where a petition for review is both filed late and accepted on equitable tolling grounds) does not carry the Commissioner over that line.  

142 S. Ct. at 1499.

I think that this passage from Boechler applies equally to the possible strange res judicata result that would be produced by IRC 7459(d) if the deficiency filing deadline is held not jurisdictional.  It’s a point in favor of a jurisdictional interpretation of the deficiency petition filing deadline, but the point does not carry the Hallmark court over the line of proving the application of the clear statement exception.

To show that the Tax Court should have agonized about the harsh and drastic consequences of finding the filing deadline jurisdictional, I first quote from Henderson v. Shinseki, 563 U.S. 428 (2011):

I begin with the Hallmark court’s conflating the jurisdictional stare decisis exception with the legislative reenactment doctrine that can sometimes be applied where there exists a long line of opinions from courts below the Supreme Court consistently interpreting the statute. 

The Hallmark court wrote:

According to the Supreme Court, “[w]hen ‘a long line of this Court’s decisions left undisturbed by Congress,’ . . . has treated a similar requirement as ‘jurisdictional,’ we will presume that Congress intended to follow that course.”  Henderson [v. Shinseki], 562 U.S. [428 (2011)] at 436 (quoting Union Pac. R.R. Co. v. Brotherhood of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 82 (2009)).  This statement describes the traditional tool of statutory construction known as the “prior-construction canon.”  If a statute is reenacted using words or phrases that have already received authoritative construction by the highest court in a jurisdiction, or have been uniformly construed by inferior courts or the responsible agency, then the later version of that statute preserving the wording is presumed to carry forward that interpretation, and they are to be understood according to that construction.  See, e.g., Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (citing an “unwavering line of administrative and judicial interpretation” that included no Supreme Court opinions, and holding, “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well”). . . .

Slip opinion at pp. 28-29 (footnote omitted; one citation omitted).

After this quote, the Hallmark opinion went on to establish that, since 1924, the Board of Tax Appeals has treated the deficiency petition filing deadline as jurisdictional and, since 1928, beginning with a D.C. Circuit opinion, 10 of the 12 Courts of Appeals that hear appeals from the Tax Court have issued precedential opinions holding the filing deadline jurisdictional.  (The First and Fourth Circuits have no published opinions on this issue, but have agreed with the other Circuits in unpublished opinions.)  The Tax Court has also consistently treated the filing deadline as jurisdictional. 

The Hallmark court then points out that Congress amended the sentence in Revenue Act of 1924 section 274(a) that contains the filing deadline (currently the first sentence in IRC 6213(a)) many times, beginning in 1926 and all the way up to 1969.  Those amendments each lengthened the filing deadline.  Then in 1998, Congress amended IRC 6213(a) to add a new final sentence allowing taxpayers to rely on any incorrect date shown on the notice of deficiency as the last date to file.  The Hallmark opinion quotes from the “present law” Ways and Means and Conference Committee reports’ discussion of the 1998 amendment where those reports observe that the filing deadline is jurisdictional.  However, those quotes are the only instances over the past 98 years where the Congress has even acknowledged the issue of whether the filing deadline is jurisdictional, and the 1998 amendment has the same effect whether or not the filing deadline is jurisdictional.  Indeed, each of the amendments over the years that lengthened the deficiency petition filing deadline would have the same effect whether the filing deadline is jurisdictional or not. 

I don’t think the Supreme Court would give much attention to those 1998 committee report sentences.  Just like judicial statements from the period that the Supreme Court now calls “drive-by jurisdictional rulings” entitled to no weight because the court making the statement had no reason to consider whether a deadline should be jurisdictional or not because it made no difference in the case; See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91 (1998); the committee report statements should be considered “drive-by” statements, also entitled to no weight. 

The jurisdictional stare decisis exception is clearly a reluctant exception to the Supreme Court’s preferred rule that filing deadlines are no longer jurisdictional because jurisdictional deadlines produce “harsh consequences” to the parties and the courts.  United States v. Kwai Fun Wong, 575 U.S. 402, 409 (2015).  While it is true that in Kwai Fun Wong, the Court said that “traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences”; id. at 410 – which sounds like an invitation to apply the legislative reenactment doctrine, perhaps relying on lower court opinions – no post-Kontrick Supreme Court opinion involving a jurisdictional question concerning a claim-processing rule cites opinions from courts below the Supreme Court as relevant to the Court’s decision. 

You can read each of the nine Supreme Court opinions cited by me in the last part of this post, and, in every case, the Court refers to a long line of opinions of the Supreme Court or “this Court” as the ones relevant for the stare decisis exception.  See, e.g., Union Pacific R. Co. v. Locomotive Engineers, 558 U.S. 67, 82 (2009) (“this Court’s decisions”) (the first Supreme Court jurisdiction opinion after Bowles and John R. Sand created the exception).  Indeed, to emphasize the point, note that in the next indented quote below from Boechler, the Court quoted from Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019), where the Court, in quoting from Union Pacific, deliberately modified Union Pacific’s reference to “this Court’s decisions” to “[Supreme] Cour[t] decisions”.  Justice Ginsburg, who wrote for a unanimous Court in Davis, made that change as a point of emphasis.  In the prior part of this post, I quoted from a Justice Ginsburg concurring opinion in Reed Elsevier v. Muchnick, 559 U.S. 154, 173-174 (2010), where she objected to an amicus citing to the Court over 200 opinions from courts below the Supreme Court.

In my view, the Tax Court in Hallmark gives lip service to the jurisdictional stare decisis exception as articulated by the Supreme Court, but instead unjustifiably applies a legislative reenactment doctrine that allows a court to consider a long line of opinions only from courts below the Supreme Court. 

Next, what does Boechler tell us about this long history of lower court opinions holding the deficiency filing deadline jurisdictional (relied on by Hallmark) and whether such long history can qualify for the stare decisis exception?  Here’s from Boechler:

The Commissioner’s weakest argument is his last:  He insists that § 6330(d)(1)’s filing deadline is jurisdictional because at the time that deadline was enacted, lower courts had held that an analogous tax provision regarding IRS deficiency determinations is jurisdictional.  (That provision says that “[w]ithin 90 days . . . the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.”  26 U.S.C. § 6213(a).)  According to the Commissioner, Congress was aware of these lower court cases and expected § 6330(d)(1)’s time limit to have the same effect.  So, he says, the statutory backdrop resolves any doubt that might linger in the text. The Commissioner’s argument misses the mark.  The cases he cites almost all predate this Court’s effort to “bring some discipline” to the use of the term “jurisdictional.”  Henderson, 562 U.S., at 435.  And while this Court has been willing to treat “‘a long line of [Supreme] Cour[t] decisions left undisturbed by Congress’” as a clear indication that a requirement is jurisdictional, Fort Bend County v. Davis, 587 U.S. __, __, 139 S. Ct. 1843 (2019), no such “long line” of authority exists here

142 S. Ct. at 1500. 

In other words, the Supreme Court doesn’t think much of the deficiency precedent from the lower courts of which the Solicitor General made the Supreme Court aware in Boechler, and the Supreme Court seems only willing to apply the stare decisis exception to its new jurisdictional rules if someone can show it that it has held the same claim-processing rule jurisdictional in the past.  But, no one can for the filing deadline in IRC 6213(a).

Here’s the Hallmark court’s response to this passage from Boechler:

We set out in detail (in Part II.E above and in the attached Appendix) the impressive history—almost a century long—of judicial construction of the 90-day deadline as jurisdictional and of Congress’s repeated perpetuation of that construction by its amendments, reenactments, and codifications.  No such history can be mustered for the asserted jurisdictional character of the 30-day deadline in section 6330(d)(1) (a provision which has existed in the Code only since 1998, see Internal Revenue Service Restructuring and Reform Act of 1998, § 3401(b), 112 Stat. at 749).  As the Supreme Court said, “no such ‘long line’ of authority exists here” in connection with section 6330(d)(1).  Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500.

Slip opinion at p. 41. 

I don’t think that is much of a response to the Supreme Court’s disparagement of that lower court deficiency precedent.  And while there is some ambiguity in the above quote from Boechler concerning whether, when the Supreme Court was noting the absence of a long line of Supreme Court authority, it was referring to IRC 6330(d)(1) and/or 6213(a), even Hallmark concedes that there is no Supreme Court authority on whether the deficiency filing deadline is jurisdictional, either.

In Hallmark, the opinion also notes that on five occasions the Supreme Court has declined cert. on cases that could have presented the issue of whether the deficiency petition filing deadline is jurisdictional; see slip opinion at p. 37 n. 31; but every lawyer knows that there is nothing precedential in a Supreme Court denial of cert.