# Schacht v. United States/Concurrence Harlan

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United States Supreme Court
398 U.S. 58
Schacht v. United States
Argued: March 31, 1970. --- Decided: May 25, 1970
Mr. Justice HARLAN, concurring.
I join Part I of the Court's opinion. With respect to Part II, I agree with the Court's rejection of the Government's 'jurisdictional' contention premised on the untimely filing of the petition for certiorari. In my view, however, that contention deserves fuller consideration than has been accorded it in the Court's opinion.
* The Court's opinion does not fully come to grips with the Solicitor General's position. The Court rejects the argument that untimeliness under Rule 22(2) should be given jurisdictional effect by stating, in part, that the Rule 'contains no language that calls for so harsh an interpretation.' In this regard, however, the time limitation found in Rule 22(2) is no different from those established by statute; neither makes explicit reference to waivers of the limitation. In the absence of language providing for waiver, we have without exception treated the statutory limitations as jurisdictional. The Solicitor General asks why we should not do the same under our Rule. This issue, i.e., why we treat time requirements under our Rule differently from the requirements imposed by statute, is hardly acknowledged in the Court's opinion. Moreover, although it is true that Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302, n. 1 (1969), and Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 453, 3 L.Ed.2d 407, n. 7 (1959), held that the Court could waive untimeliness under our Rule, neither opinion explained why this is so. The Solicitor General does not belittle those two cases merely because each dealt with the problem in a footnote, but rather urges that they are inconclusive because neither gave reasons for the conclusion.
My own analysis of the issue presented here begins with an examination of the statutory authority for Rule 22(2). This is found in what is now 18 U.S.C. § 3772, a provision authorizing this Court to prescribe post-verdict rules of practice and procedure in criminal cases. Section 3772 specifically delegates to this Court the power to promulgate rules prescribing 'the times for and manner of taking appeals (to the Courts of Appeals) and applying for writs of certiorari * * *.' While the legislative history of this provision evinces a congressional concern over undue delays in the disposition of criminal cases, the board terms of the statutory language, as well as what was written in the committee reports, convince me that Congress' purpose was to give this Court the freedom to decide what time limits should apply.
Under the unqualified delegation found in § 3772, I have no doubts concerning this Court's authority to promulgate a rule that required certiorari petitions to be filed within 30 days of the judgment below but that expressly provided that this requirement could be waived for good cause shown, in order to avoid unfairness in extraordinary cases. I also think the Court might promulgate a rule that expressly provided that untimeliness could not be waived even for 'excusable neglect'-in other words a 'jurisdictional rule.'
Rule 22(2), as promulgated, contains no express provision allowing for waiver. It is clear from prior decisions that the Court has interpreted the rule to allow for such a waiver, however. So interpreted, I find Rule 22(2) no less authorized under 18 U.S.C. § 3772 than would be a rule that by its terms provided expressly for the possibility of a waiver.
Nor do I find it at all anomalous that this Court on occasion waives the time limitations imposed by its own Rules and yet treats time requirements imposed by statute as jurisdictional. As a matter of statutory interpretation, the Court has not presumed the right to extend time limits specified in statutes where there is no indication of a congressional purpose to authorize the Court to do so. Because we cannot 'waive' congressional enactments, the statutory time limits are treated as jurisdictional. On the other hand, for the time requirement of Rule 22(2), established under a broad statutory delegation, it is appropriate to apply the 'general principle' that "(i)t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it," American Farm Lines v. Black Ball, 397 U.S. 532, 539, 90 S.Ct. 1288, 1292, 25 L.Ed.2d 547 (1970), quoting from N.L.R.B. v. Monsanto Chemical Co., 205 F.2d 763, 764 (C.A.8th Cir. 1953).
Although I therefore conclude that this Court possesses the discretion to waive the time requirements of Rule 22(2), it must be recognized that such requirements are essential to an orderly appellate process. Consequently, I believe our discretion must be exercised sparingly, and only when an adequate reason exists to excuse noncompliance with our Rules. In the present case, I agree with the Court that petitioner has adequately explained why he failed to meet our time requirements. On this basis I concur in Part II of the Court's opinion.
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, concurring in the result.
I agree that Congress cannot constitutionally distinguish between those theatrical performances that do and those that do not 'tend to discredit' the military, in authorizing persons not on active duty to wear a uniform. I do not agree, however, with the Court's conclusion that as a matter of law petitioner must be found to have been engaged in a 'theatrical production' within the meaning of 10 U.S.C. § 772(f). That issue, it seems to me, is properly left to the determination of the jury.
The United States has argued that the exception for 'theatrical productions' must be limited to performances in a setting equivalent to a playhouse or theater where observers will necessarily be aware that they are watching a make-believe performance. Under this interpretation, the Government suggests, petitioner must be found as a matter of law not to have been engaged in a 'theatrical production'; hence, his conviction for unauthorized wearing of the uniform is lawful without regard to the validity of the 'tend to discredit' proviso to § 772(f). The Court, on the other hand while refusing to assay a definition of the statutory language, flatly declares that under any interpretation, Congress could not possibly have meant to exclude petitioner's 'street skit' from the class of 'theatrical productions.' Neither extreme, in my view, is correct. The critical question in deciding what is to count as a 'theatrical production' ought to be whether or not, considering all the circumstances of the performance, an ordinary observer would have thought he was seeing a fictitious portrayal rather than a piece of reality. And, although the judge's instructions here did not precisely reflect this interpretation, this question seems eminently suited to resolution by the jury.
Under proper instructions, then, a jury could have concluded that no theatrical production was involved, in which case the verdict should be sustained. However, the judge's instructions also permitted conviction on a finding that petitioner was engaged in a theatrical production, but that the production tended to discredit the military. See App. 51-54. Since the general verdict does not disclose which of these findings-only one of which can constitutionally entail conviction-was the actual finding, the conviction must of course be reversed. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). I thus join the judgment of reversal but find it neither necessary nor correct to hold that petitioner's 'theatrics' performance amounted to a 'theatrical production.'

## Notes

* ↑ Compare Rule 22(2) with, e.g., 28 U.S.C. §§ 2101(b), (c). Both the Rule and this statute provide for limited extensions of time. There was, however, no extension in the case before us.
* ↑ E.g., Matton Steamboat Co., Inc. v. Murphy, 319 U.S. 412, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943); Department of Banking, State of Nebraska v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254 (1942); Citizens Bank v. Opperman, 294 U.S. 448, 39 S.Ct. 330, 63 L.Ed. 701 (1919).
* ↑ The Government relies on language in United States ex rel. Coy v. United States, 316 U.S. 342, 62 S.Ct. 1137, 86 L.Ed. 1517 (1942), a case not cited by the Court, as support for its claim that the 30-day limit established by rule was 'jurisdictional.' The issue in that case was which time limit-the 30-day limit imposed by what was then Rule XI or instead the 90-day limit of the general statutory provision-applied to a petition for certiorari for review of a circuit court affirmance of a district court denial of a motion to correct sentence in a criminal case. After noting that the petition was filed more than 30 days after the judgment of the Court of Appeals, the Court said: 'If the judgment of the Court of Appeals is one to which Rule XI applies, the petition for certiorari was filed too late and we are without jurisdiction,' Id., at 344, 62 S.Ct. at 1138. In disposing of the case, however, the opinion simply stated that the 'writ will * * * be dismissed for failure to comply with Rule XI,' id., at 346, 62 S.Ct. at 1139, not for want of jurisdiction. In any event, the Court in Coy did not focus on the issue of whether for good cause Rule XI might be waived, thereby removing a time limitation that otherwise might be termed jurisdictional.
* ↑ 18 U.S.C. § 3772 derives from 47 Stat. 904 (1933) and 48 Stat. 399 (1934). Before these enactments, certiorari in criminal cases was governed by the general three-month time limitation provided by § 8(a) of the Judiciary Act of February 13, 1925, 43 Stat. 940.
* ↑ See H.R.Rep. No. 2047, 72d Cong., 2d Sess., 2 (1933); S.Rep. No. 257, 73d Cong., 2d Sess., 1 (1934).
* ↑ See H.R.Rep. No. 2047, supra, at 2 ('A statutory code of procedure is not flexible; changes made desirable by experience can not be promptly made. The overwhelming weight of opinion among judges and lawyers is that matters of practice and procedure may better be controlled by rule than by statute.').
* ↑ See United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), where we held that under the Federal Rules of Criminal Procedure the Court of Appeals could not enlarge the time for filing an appeal even though it has found 'excusable neglect.' The Court thought, inter alia, that time extensions were inconsistent with the express language of Rule 45(b), and the 'deliberate intention' of its drafters.
* ↑ See, e.g., Heflin v. United States, supra; Taglianetti v. United States, supra.
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