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Rule, not statute, set deadline for appeal; CA-7 wrong to dismiss for lack of jurisdiction

By Lorene D. Park, J.D.

Vacating the dismissal of an employment discrimination plaintiff’s appeal, the Supreme Court found that the Seventh Circuit erred in ruling that Fed. R. App. P. 4(a)(5)(C)’s 30-day deadline for filing a notice of appeal was jurisdictional and could not be waived or forfeited. The High Court explained that if a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional, otherwise it is a claim-processing rule that may be waived or forfeited. Here, the statute (28 U.S.C. § 2107) did not limit time extensions in cases like this one. Because the time limit appeared only in the court’s procedural rule, not in the statute, it was not jurisdictional (Hamer v. Neighborhood Housing Services of Chicago, November 8, 2017, Ginsburg, R.).

District court grants extension of time to appeal. In this discrimination suit by a public employee, the federal district court granted the employer’s motion for summary judgment, entering final judgment on September 14, 2015. Under Fed. R. App. P. 4(a)(1)(A) and 28 U.S.C. § 2107(a), the original deadline for the employee to file a notice of appeal was October 14. Before that date, the employee’s attorneys filed a motion to withdraw as counsel and a motion for an extension of the appeal filing deadline to give her time to secure new counsel. The court granted both motions, extending the deadline to December 14, a two-month extension.

Seventh Circuit dismisses appeal as untimely. The employee filed her notice of appeal with the Seventh Circuit on December 11, which was within the timeframe permitted by the district court but which exceeded the extension allowable under Fed. R. App. P. 4(a)(5)(C), which provides: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”

Dismissing the employee’s appeal, the Seventh Circuit concluded that Rule 4(a)(5)(C)’s 30-day time prescription is jurisdictional. Although the appeals court recognized that the employee relied on the district court’s erroneous order and was misled to believe she had timely filed her notice of appeal, the appeals court stated that it “simply has no authority to excuse the late filing or to create an equitable exception to jurisdictional requirements.” Her argument that her employer waived the issue of the timeliness of her appeal also failed because when a filing error is of “jurisdictional magnitude,” forfeiture or waiver cannot excuse the lack of compliance.

Statute didn’t limit time extension in this case. Vacating the Seventh Circuit’s dismissal, the Supreme Court explained that only Congress can determine a lower federal court’s subject matter jurisdiction, so a provision governing the time to appeal qualifies as jurisdictional only if Congress set it. A time limit that was not set by Congress is a mandatory claims-process rule that promotes the orderly process of litigation but is not jurisdictional and may be waived.

Here, Congress enacted 28 U.S.C. § 2107, which allows extensions of the time to file a notice of appeal, stating: “(c) The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds—(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and (2) that no party would be prejudiced, the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.”

This statute, said the Court, specifies the length of an extension (14 days) for cases in which the appellant lacked notice of the entry of judgment. But for other cases, including this one, the statute doesn’t specify how long an extension may run.

The Rule limiting extensions was not jurisdictional. In contrast, Fed. R. App. P. 4(a)(5)(C) limits to 30 days extensions of time to file a notice of appeal in all circumstances, not just when a prospective appellant lacked notice of the judgment. But Rule 4(a)(5)(C) is not a congressional enactment, so it is not jurisdictional and may be waived or forfeited.

Although the employer argued that Rule 4(a)(5)(C) has a “statutory basis” because Section 2107(c) once limited extensions to 30 days rather than 14 days, that argument ignored the fact that Section 2107(c) only limited extensions in lack-of-notice cases and never spoke to extensions for other reasons, noted the High Court.

In sum, the Seventh Circuit erroneously treated as jurisdictional Rule 4(a)(5)(C)’s 30-day limit on extensions of time to file a notice of appeal. The Supreme Court therefore vacated and remanded, leaving for the appeals court to address whether the employer’s failure to raise any objection in the district court to the overlong time extension constituted a forfeiture, whether the employer had to file its own notice of appeal to have the time extension reviewed, and whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint,