Does a Notice of Appeal Filed Within an Extension Granted by the District Court Vest the Court of Appeals with Jurisdiction if the Extension Exceeds Limits Imposed by the Federal Rules of Appellate Procedure?
Does a Notice of Appeal Filed Within an Extension Granted by the District Court Vest the Court of Appeals with Jurisdiction if the Extension Exceeds Limits Imposed by the Federal Rules of Appellate Procedure?
Petitioner Charmaine Hamer filed suit alleging that respondents Neighborhood Housing Services of Chicago and Fannie Mae’s Mortgage Help Center discriminated against her on the basis of age when they terminated her employment. After entering summary judgment for respondents, the district court granted petitioner a 60-day extension of time to file a notice of appeal. Although petitioner appealed within the extended deadline, the Seventh Circuit dismissed her appeal as untimely, holding: (1) the limits imposed by Rule 4(a)(5)(C) of the Federal Rules of Appellate Procedure on extensions of time for filing a notice of appeal are mandatory and jurisdictional; (2) the 60-day extension granted by the district court exceeded those limits; (3) petitioner’s notice of appeal was therefore untimely; and (4) the Seventh Circuit had “no authority to excuse the late filing or to create an equitable exception to jurisdictional requirements.” This appeal asks the Supreme Court to decide: (1) whether the limits imposed on extensions under Rule 4(a)(5)(C) are jurisdictional, even though no such limits are imposed by statute; and (2) if not jurisdictional, whether forfeiture, waiver, or other equitable considerations permit the appellate court to address the merits of the appeal despite the violation of Rule 4(a)(5)(C).
Docket No. 16-658
Argument Date: October 10, 2017
From: The Seventh Circuit
by Kimberly A. Jansen
Hinshaw & Culbertson, LLP, Chicago, IL
Can Federal Rule of Appellate Procedure 4(a)(5)(C) deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, as the Second, Fourth, Seventh, and Tenth Circuits have concluded, or is Federal Rule of Appellate Procedure 4(a)(5)(C) instead a nonjurisdictional claim-processing rule because it is not derived from a statute, as the Ninth and D.C. Circuits have concluded, and therefore subject to equitable considerations such as forfeiture, waiver, and the “unique-circumstances doctrine”?
Petitioner, Charmaine Hamer, was fired from her job with respondents, Neighborhood Housing Services of Chicago and Fannie Mae’s Mortgage Help Center. Petitioner then sued respondents under both the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, alleging that her termination was based on age discrimination. The district court granted summary judgment in favor of respondents.
After summary judgment was entered, petitioner’s attorney sought leave to withdraw as counsel, citing disagreement about whether to proceed with an appeal. So that petitioner would have adequate time to secure appellate counsel, petitioner’s attorney requested a 60-day extension of time in which to file the notice of appeal. The district court granted the motion, allowing counsel to withdraw and extending the deadline for filing a notice of appeal from October 14, 2015, to December 14, 2015. Respondents did not object.
On December 11, 2015—within the extended deadline—petitioner filed her notice of appeal. Once the appeal had been docketed, the Seventh Circuit sua sponte directed respondents to brief the timeliness of the appeal. Specifically, the Seventh Circuit’s order observed that Rule 4(a)(5)(C) provides that “no extension of time to appeal ‘may exceed 30 days after the prescribed time [to appeal]’” and that it appeared that the district court lacked authority to extend the deadline for filing the notice of appeal beyond November 13, 2015.
The professionalism and candor of respondents’ brief in answer to the Seventh Circuit’s order is commendable. First, respondents candidly acknowledged their belief that, under existing Seventh Circuit precedent, the limitations imposed by Rule 4(a)(5)(C) did not appear to be jurisdictional because the applicable statutory authority, 28 U.S.C. § 2107(c), does not limit extensions to 30 days from the original deadline.
Respondents argued instead that the limit on the length of extensions imposed by Rule 4(a)(5)(C) is a mandatory “claim-processing rule.” Again, respondents candidly acknowledged that such rules are subject to forfeiture if not timely raised by the party seeking to enforce the rule. Nevertheless, respondents argued that they did not forfeit enforcement of the rule because they raised the issue prior to a decision on the merits of the appeal—namely, in the brief they filed in compliance with the Seventh Circuit’s order.
Respondents further acknowledged that the “unique-circumstances doctrine” may permit an appeal to be heard, notwithstanding violation of a mandatory claim-processing rule, if the party seeking to appeal relied on a district court’s ruling extending the time to appeal. Respondents argued that the doctrine would only apply, however, if a genuine ambiguity had existed in Rule 4(a)(5)(C) and the district court had resolved the ambiguity (albeit incorrectly) in favor of granting the extension. Respondents argued that no such ambiguity in the rule exists here and, so, this equitable doctrine does not afford relief.
Finally, respondents volunteered that the appeal might arguably be timely if the Seventh Circuit were to treat the motion for an extension of time as the “functional equivalent” of a notice of appeal. Respondents noted, however, that the Seventh Circuit had treated a motion for an extension of time as the “functional equivalent” of a notice of appeal only in cases where a definitive intent to appeal was clear from the motion itself. They argued that petitioner’s prior counsel’s motion was not so definitive.
The Seventh Circuit then ordered petitioner (now proceeding pro se) to file a response to respondents’ brief. Although petitioner requested the appointment of counsel, the Seventh Circuit did not grant the request.
Petitioner agreed with respondents that the time limits imposed by Rule 4(a)(5)(C) are not jurisdictional. Petitioner argued that if the rule is merely a claim-processing rule subject to forfeiture, it cannot be considered “mandatory.” Respondents’ failure to raise the issue prior to the Seventh Circuit’s prompting, petitioner argued, amounted to forfeiture. Petitioner argued that the disparity between Rule 4(a)(5)(C) and § 2107(c) created sufficient ambiguity to invoke the “unique-circumstances doctrine.” Finally, petitioner argued that the motion for extension reflected a definitive intent to appeal sufficient to justify treating it as the functional equivalent of a notice of appeal given that it was combined with counsel’s request for leave to withdraw based on his disagreement with petitioner regarding the filing of the appeal.
The Seventh Circuit took the jurisdictional issue with the case. After full briefing on the merits, the Seventh Circuit dismissed the appeal for lack of jurisdiction without addressing the parties’ arguments on the merits.
The filing of a notice of appeal marks the beginning of every appeal from a final judgment. Given the jurisdictional importance of the notice of appeal, however, an untimely notice may also effectively mark the end of an appeal. Accurately interpreting and following the rules that govern the proper filing of a notice of appeal is thus critical to effective appellate practice.
The proper filing of a notice of appeal is governed both by statute (§ 2107) and by the Federal Rule of Appellate Procedure (Rule 4). In many respects, the requirements of the statute and of the rule are identical. Under both § 2107(a) and Rule 4(b)(1), for example, the notice of appeal in a civil case must generally be filed within 30 days after entry of the judgment or order being appealed. In addition, both § 2107(c) and Rule 4(a)(5)(A) allow a district court to extend the time for filing the notice of appeal if a motion for an extension is filed within 30 days after expiration of the initial 30-day deadline.
But the statute and rule differ in one crucial respect. So long as a motion for extension is filed within the initial 30-day deadline for appeal, § 2107(c) imposes no limit on the length of the extension the district court may grant. Under Rule 4(a)(5)(C), in contrast, a district court’s extension of time may not exceed the greater of: (1) 30 days from the initial 30-day deadline; or (2) 14 days from entry of the order granting the extension.
In this case, there is no question that petitioner’s notice of appeal was filed within the district court’s extension. There is also no question that the district court’s extension exceeded the limits imposed by Rule 4(a)(5)(C) on the length of the extension a district court may grant. The ultimate question for the Supreme Court is whether, under these circumstances, the appellate court had authority to hear the appeal.
In an effort to address that question, the parties have focused on three questions. This article tackles each question in order.
Is the time limit imposed by Rule 4(a)(5)(C) jurisdictional?
The first question the parties addressed is whether the Rule 4(a)(5)(C) limitations on extension length are jurisdictional. The parties agree that resolution of this issue turns on whether there is a statutory basis for those limitations. After all, Congress is vested with the Constitutional authority to “decide[ ] what cases the federal courts have jurisdiction to consider” and to “determine when, and under what conditions, federal courts can hear them.” Bowles v. Russell, 551 U.S. 205 (2007).
Petitioner observes that, at the time the extension was granted in this case, § 2107(c) imposed no limits on the length of the extension a district court may grant where a motion is filed prior to the expiration of the initial deadline for filing the notice of appeal. In petitioner’s view, then, the time limits imposed by Rule 4(a)(5)(C) lack a statutory basis and may not properly be viewed as jurisdictional.
Respondents concede that the current version of § 2107(c) imposes no limitation on the length of extensions a district court may grant. At the time Rule 4(a)(5)(C) was first adopted, however, the 30-day limit on extensions was a part of the statute. The 1991 amendment of § 2107(c), respondents insist, was intended to make only technical corrections to conform the statute to Rule 4(a), so the omission of the 30-day limit on extensions should be viewed as a mere oversight. Although the 30-day limit was omitted from the statute when § 2107(c) was amended in 1991, respondents contend that this omission should not be construed as stripping the limits imposed by Rule 4(a)(5)(C) of jurisdictional significance.
Respondents additionally argue that the nature of the limits imposed by Rule 4(a)(5)(C) additionally compels a finding that the rule is jurisdictional. In this context, respondents note the Supreme Court’s admonition that courts and litigants should avoid using the term “jurisdictional” to refer to mere claim-processing rules, but instead should reserve the term “only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick v. Ryan, 540 U.S. 443 (2004).
In respondents’ view, time limits such as those imposed by Rule 4(a)(5)(C) are “quintessentially jurisdictional” because they define where one court’s authority ends and another court’s authority begins. And, indeed, time limits for filing a notice of appeal have long been treated as jurisdictional.
Professor Scott Dodson, writing as an amicus curiae supporting neither party, similarly urges that Rule 4(a)(5)(C) should be viewed as jurisdictional because it “is part of the boundary dividing authority between the district courts and the courts of appeals.” But this does not, Dodson hastens to add, answer the ultimate question of whether an extension exceeding the rule’s limits precluded the Seventh Circuit from addressing petitioner’s appeal on the merits.
Even jurisdictional rules, Dodson argues, may yield in an appropriate case to equitable principles. Both Rule 4(a)(5)(C) and § 2107(c), after all, explicitly provide that the jurisdictional deadline for filing a notice of appeal may be relaxed based on equitable principles—namely, good cause and excusable neglect. Whether the jurisdictional prescription limiting extensions of the time to appeal should be relaxed in this case, Dodson argues, should be decided based on a direct construction and application of the rule and not solely on the characterization of that rule as jurisdictional.
The Academy of Appellate Lawyers (the Academy), writing as amicus curiae in support of petitioner, in contrast, argues that construing Rule 4(a)(5)(C) as jurisdictional would set a dangerous precedent. The Academy’s analysis begins with the principle that “only Congress can limit the subject-matter jurisdiction Congress granted to the courts of appeals.” To construe a judge-made rule like Rule 4(a)(5)(C) as limiting the jurisdiction of the courts of appeals would, in the Academy’s view, amount to a wholesale refusal by the courts to exercise jurisdiction over justiciable disputes within their federal subject-matter jurisdiction. The Academy finds no precedent that would justify “forfeiting statutory appellate jurisdiction…by making appellate jurisdiction depend on a party’s compliance with a court rule.”
As attorneys have occasionally discovered to their dismay, the rules governing appellate procedure can present pitfalls for those who do not specialize in appellate practice (and sometimes even for those who do). District court judges faced with unopposed motions seeking relief that the court has statutory authority to grant are unlikely to conduct original research before granting that relief, the Academy argues—and lawyers, their clients, and self-represented parties, in turn—reasonably rely on the procedural directions contained in a district court’s orders. To categorize as jurisdictional a deadline established by rule but not authorized by statute, the Academy contends, would create a “classic trap for the unwary,” likely to disproportionately ensnare pro se litigants such as petitioner.
Such a procedural trap is particularly problematic in the context of Rule 4(a)(5)(C), the Academy warns, because it “encourages morally reprehensible behavior.” If the limitations imposed by Rule 4(a)(5)(C) are jurisdictional—and thus not subject to waiver, forfeiture, or equitable remedy—then a prospective appellee will have incentive to remain silent when confronted by a motion seeking an extension of time greater than the rule permits. Worse still, the prospective appellee might even encourage the granting of such an extension in hopes that the unwary appellant will thereby lose the opportunity to appeal.
Particularly given these concerns, the Academy argues that treating Rule 4(a)(5)(C) as jurisdictional is unnecessary. The rule, after all, is rarely invoked. And when it is, district courts typically grant extensions within the rule’s limits. Where an extension is requested or granted in excess of the rule’s limits, an appellee can easily object. Thus, the Academy argues, the rule’s purpose is adequately served by treating it as a mandatory claim-processing rule.
If Rule 4(a)(5)(C) is a nonjurisdictional claim-processing rule, did respondents forfeit any claim of untimeliness based on that rule?
Mandatory claim-processing rules, the parties agree, are subject to forfeiture if the issue is not timely raised by the party asserting the rule. By failing to object to the 60-day extension before the district court, petitioner argues, respondents forfeited the argument that her appeal was untimely under Rule 4(a)(5)(C).
As a general rule, the federal courts of appeals will not consider an issue that was not raised before the district court. A timely objection before the district court provides the court an opportunity to consider and correct potential errors, eliminating the need to correct such errors on appeal.
Had respondents raised a timely objection in the district court, petitioner argues, the district court could have granted an extension within the limits of Rule 4(a)(5)(C) and petitioner’s compliance with such an extension would have eliminated any claim that her appeal was untimely. Indeed, even if a district court were to disregard a timely objection and grant an extension in excess of what the rule allows, the Academy observes, the timely objection would put appellants on notice of the risk that an appeal filed in reliance on the over-long extension will likely be dismissed.
Respondents argue that their failure to challenge the 60-day extension before the district court did not forfeit their right to challenge the timeliness of petitioner’s appeal. The district court granted the motion filed by petitioner’s counsel seeking both the 60-day extension and leave to withdraw the same day that the motion seeking that relief was filed, without awaiting any response from respondents. Further, respondents claim that the district court’s local rule (N.D. Ill. R. 78.3) provides that failure to respond does not waive any objection to a motion.
Petitioner contends that respondents also forfeited their challenge to the 60-day extension by failing to file a cross-appeal challenging that order. An appellee that fails to file a cross-appeal is not permitted to seek relief from the appellate court either enlarging the appellee’s own rights under the district court’s judgment or diminishing the appellant’s rights. Challenging the district court’s extension of the time for appeal, petitioner argues, sought to lessen the petitioner’s rights—indeed, sought to strip her of the right to appeal at all. A cross-appeal was thus required.
Two circuit courts of appeals—the Third and Sixth—have agreed with petitioner on this point. Amatangelo v. Borough of Donora, 212 F.3d 776 (3d Cir. 2000); United States v. Burch, 781 F.3d 342 (6th Cir. 2015). The Tenth Circuit, however, has taken the opposite position. United States v. Madrid, 633 F.3d 1222 (10th Cir. 2011). As respondents note, the Madrid Court held that no cross-appeal was necessary to challenge an improper extension of the time to appeal because, “[i]n moving for dismissal of the appeal, the [appellee] was not seeking alteration of the judgment below in its favor.”
Respondents maintain that they were not required to cross-appeal the order granting a 60-day extension because they were not aggrieved by the extension itself. Any confusion created by the improper request for (and granting of) the too-long extension, they contend, was “a problem for Petitioner and her counsel, not for Respondents.” They did not attack the district court’s decision granting summary judgment in their favor in any respect, and so no cross-appeal was required.
If Rule 4(a)(5)(C) is a nonjurisdictional claim-processing rule, does the “unique-circumstances doctrine” permit the appellate court to hear the appeal?
Finally, petitioner argues that if Rule 4(a)(5)(C) is a nonjurisdictional claim-processing rule, then the “unique-circumstances doctrine” permitted the Seventh Circuit to consider her appeal on the merits notwithstanding the district court’s violation of Rule 4(a)(5)(C).
The “unique-circumstances doctrine” originated with the Supreme Court’s decision in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962). Under the version of both the statute and rule applicable at that time, a district court was permitted to extend the time for appeal if a party did not receive notice and could demonstrate excusable neglect. The district court granted a 30-day extension to appeal, even though the plaintiff’s attorney of record had indeed received notice. As in this case, the Seventh Circuit in Harris Truck Lines dismissed the appeal for lack of jurisdiction, holding that the extension granted by the district court was improper and the notice of appeal filed in reliance on that extension was untimely.
The Supreme Court reversed, noting “the obvious great hardship” to an appellant who relies on an extension granted by the district court only to suffer dismissal of an appeal upon a finding that the extension was improper. The Supreme Court found these “unique-circumstances” sufficient to permit the appeal to proceed despite the improper extension of the time to appeal.
More recently, in Bowles, the Supreme Court overruled Harris Truck Lines and a similar decision “to the extent they purport to authorize an exception to a jurisdictional rule.” In petitioner’s view, this leaves the “unique-circumstances doctrine” intact as an exception to nonjurisdictional rules. Because she relied in good faith on the 60-day extension granted by the district court and because dismissal of her appeal as untimely would be an “obvious great hardship,” petitioner argues the “unique-circumstances doctrine” should permit the consideration of her appeal on the merits.
Respondents argue that, even if the “unique-circumstances doctrine” remains viable, it would not apply here. In respondents’ view, that doctrine could only afford relief if Rule 4(a)(5)(C) were ambiguous. Because the rule is clear on its face, they argue, petitioner’s reliance on the 60-day extension was not reasonable.
Respondents also question the continued viability of the “unique-circumstances doctrine.” Citing the Supreme Court’s recent decision in Manrique v. United States, 137 S. Ct. 1266 (2017), respondents argue that even nonjurisdictional rules relating to notices of appeal are mandatory and unalterable.
In Manrique, the district court entered a judgment sentencing a criminal defendant, but deferred the determination of a mandatory restitution award to a future date. After the defendant filed his notice of appeal from that judgment, the district court entered a second judgment specifying the amount of restitution the defendant would be required to pay. Because defendant did not file a second or amended notice of appeal, the Eleventh Circuit held that it lacked jurisdiction to consider his challenge to the later-entered restitution order.
In affirming the Eleventh Circuit’s judgment, the Supreme Court rejected the defendant’s argument that the court could overlook any defect in his notice of appeal as harmless. But Rule 3(a)(2) provides that the courts of appeals may overlook any defect in a notice of appeal except for the failure to timely file a notice. The defendant’s failure to file a notice of appeal after (and directed at) the restitution judgment fell within this exception and could not be overlooked.
Respondents take the position that filing a notice of appeal in compliance with an invalid extension amounts to a failure to timely file the notice of appeal and, as such, the defect may not be overlooked as harmless.
This case is likely to be of little interest to the general public, most of whom will never be directly affected by the Supreme Court’s determination as to how this rule of appellate procedure should be applied. Even those who may at some point be involved in federal litigation will be unlikely to face extensions of time that exceed the limits of Rule 4(a)(5)(C)—as the Academy notes, the rule is rarely invoked, and when it is, extensions usually fall within the rule’s limits.
As is illustrated by the two amici, the case is likely to be of greater interest to two groups: (1) legal scholars (like Professor Dodson) with an academic interest in the intricacies of federal jurisdiction; and (2) appellate specialists (as ably represented by the Academy) who routinely wrestle with the intricacies of appellate jurisdiction and who thus have a vested interest in preserving institutional values and enhancing standards of practice.
The Supreme Court could well avoid tackling the jurisdictional question head-on, as it did in Manrique, by holding that petitioner’s appeal was properly dismissed even if Rule 4(a)(5)(C) is construed as a mere claim-processing rule. Such a result would undoubtedly be important to appellate practitioners because it will provide guidance about the circumstances (if any) that will support relaxation of claim-processing rules.
The Supreme Court might, however, instead hold that the limits imposed on extensions under Rule 4(a)(5)(C) are jurisdictional, even though such limits are not incorporated in § 2107(c). Such a holding, as the Academy points out, would represent a significant (albeit subtle) shift in the respective roles of the legislature and the judiciary in defining the boundaries of the federal appellate courts’ jurisdiction. Constitutionally, Congress is given the responsibility of establishing and regulating the lower federal courts. A holding that Rule 4(a)(5)(C) is jurisdictional would mean that even where Congress has vested the courts of appeals with jurisdiction over a matter, the Supreme Court can narrow that grant of jurisdiction by rule. According to the Academy, such a holding “would set a precedent of unknowable hazard to the Judicial Branch.”
Kimberly A. Jansen is a partner at Hinshaw & Culbertson LLP, where she focuses her practice on appellate litigation. She can be reached at email@example.com or 312.704.3821. PREVIEW of United States Supreme Court Cases, pages 21–25. © 2017 American Bar Association
In Support of Petitioner Charmaine Hamer
In Support of Neither Party