Page:Ivan Eberhart v. United States.pdf/7

Rh 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 'jurisdictional.'" 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