April 05, 2017 Practice Points

Extending Your Time to Appeal under 28 U.S.C. § 2107(c) and Fed. R. App. P. 4(a)(5)(C)

SCOTUS recently granted certiorari in a case that raises the issue of whether Fed. R. App. P. 4(a)(5)(C) can deprive a court of appeals of jurisdiction over appeals that are statutorily timely.

By Josh Jacobson

28 U.S.C. § 2107(c) permits a district court to extend the time for appeal, but it does not limit the length of the extension. In contrast, Fed. R. App. P. 4(a)(5)(C) limits the length of any extension to 30 days. So what happens if a district court extends a litigant’s time to appeal for more than 30 days? The U.S. Supreme Court recently granted certiorari in a case that raises the issue of whether Fed. R. App. P. 4(a)(5)(C) can deprive a court of appeals of jurisdiction over appeals that are statutorily timely.

In Hamer v. Neighborhood Housing Servsices, the district court granted the plaintiff’s timely request for a 60-day extension of her time to file a notice of appeal pursuant to 28 U.S.C. § 2107(c). The plaintiff filed her seemingly timely notice of appeal, and the defendants conceded that her appeal was timely, but the Seventh Circuit eventually dismissed the appeal sua sponte, finding that Fed. R. App. P. 4(a)(5)(C) was a jurisdictional rule, meaning that the appeal was untimely.

Like the Seventh Circuit, the Second, Fourth, and Tenth Circuits have held that the 30-day limit in Fed. R. App. P. 4(a)(5)(C) deprives courts of jurisdiction over appeals that are seemingly timely under 28 U.S.C. § 2107(c). In contrast, the Ninth and D.C. Circuits have held that Rule 4(a)(5)(C) is a non-jurisdictional claim-processing rule that does not deprive courts over appeals that are timely under 28 U.S.C. § 2107(c).

The case is likely to be argued in late 2017.

Hamer v. Neighborhood Hous. Servs., 835 F.3d 761 (7th Cir. 2016), cert granted, ___ S. Ct. ___ (2017).

Josh Jacobson is with the Law Office of Josh Jacobson, P.A. in Minneapolis, Minnesota.


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