United States Supreme Court Decision Proves That Appellate Practice Is A Minefield Best Navigated By Savvy Appellate Practitioners
The recent unanimous decision by the United States Supreme Court in Hamer v. Neighborhood Housing Services of Chicago, __ U.S.__ (No. 16-58, Nov. 8 2017), illustrates once again the perilous nature of appellate practice, for in this decision the Supreme Court took to task experienced federal appellate jurists for failing “to grasp the distinction” “between jurisdictional appeal filing deadlines and mandatory claim-processing rules.”
Petitioner Hamer sued respondents for employment discrimination. Respondents obtained summary judgment against Hamer on September 14, 2015, making Hamer’s notice of appeal due by October 14, 2015. On October 8, 2015, before the 30-day notice of appeal deadline was about to expire, Hamer’s counsel filed two motions-one to withdraw as counsel and another for a two-month extension of time to file the notice of appeal so that Hamer could find new counsel. The District Court granted both motions and extended Hamer’s notice of appeal time from October 14, 2015 to December 14, 2015. The District Court’s extension order, however, contravened Federal Rule of Appellate Procedure 4(a)(5)(C) which limited such extensions of time to file a notice of appeal to only 30 days in all cases. Respondents did not object to this 60-day extension of time.
Hamer appealed within the 60-day extension. On appeal, the United States Court of Appeals for the Seventh Circuit questioned its own jurisdiction raising the time limit found in FRAP Rule 4(a)(5)(C). The Seventh Circuit found that this time limit of an additional 30 days to file a notice of appeal was a jurisdictional time limit. In other words, Hamer was entitled to an extension of only an additional 30 days, not 60 days and thus Hamer’s appeal filed outside this 30-day time limit deprived the court of subject matter jurisdiction to hear the appeal.
On appeal, the Supreme Court found that the Seventh Circuit, like other Circuits, “tripped over” the holding in prior decisional law that the taking of an appeal within the prescribed time is mandatory and jurisdictional. According to the Court, time periods are jurisdictional “only if Congress sets the time,” because “only Congress may determine a lower federal court’s subject-matter jurisdiction.” A time limit not set by Congress ranks as only a “mandatory claims processing rule”
The Court held that this distinction was crucial since the failure to comply with a jurisdictional time period deprives a Court of Appeals with adjudicatory authority over an appeal. Mandatory claim-processing rules though “are less stern.” According to the Court, while such rules must be enforced, they can be waived or forfeited, unlike a jurisdictional rule which is subject to no such waiver or forfeiture.
The Court found that FRAP Rule 4(a)(5)(C) limiting extensions of time to file a notice of appeal in all cases to just 30 days was only a claims-processing rule and not a jurisdictional time period. The Court based this conclusion on the application of 28 U.S.C. 2107 which limits an extension of time to file a notice of appeal to only those cases where the appellant lacked notice of the entry of judgment. According to the Court, “[f]or other cases, the statute does not say how long an extension may run.” Accordingly FRAP Rule 4(a)(5)(C) prescribing a 30-day extension of time to all cases did not have a statutory basis, and could not be treated as a jurisdictional time period.
In remanding the case for further consideration, the Court noted that certain issues regarding the enforcement of FRAP Rule 4(a)(5) (C) were unaddressed and presumably would be addressed upon remand:
- whether respondents’ failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture;
- whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice, and
- whether equitable considerations may occasion an exception to Rule 4(a)(5) (C)’s time constraint.
Practice Pointer: As this decision illustrates, preserving appellate rights from either the standpoint of an appellant or appellee requires not only a thorough understanding of the Federal Rules, but also the federal statutes conferring and prescribing jurisdiction and the cases interpreting those statutes and rules. Such appellate work should only be handled by trained and experienced appellate advocates and not by trial counsel or the occasional appellate lawyer. Further, as shown by the Court’s remand order, appellate practitioners are usually best qualified to prevent a forfeiture of objections to violations of appellate rules . . . savvy appellate counsel here would have undoubtedly objected to the extension of time of 60 days as a violation of FRAP Rule 4(a) (5)(C), and if those objections were overruled, savvy appellate counsel would have filed a notice of appeal from the order to preserve the right to contest that order on appeal.