Is Federal Rule of Appellate Procedure 4(a)(5)(C) jurisdictional in nature or is it instead a non-jurisdictional claim-processing rule?
The issue in this case involves whether Federal Rule of Appellate Procedure 4(a)(5)(C) is a jurisdictional rule or a non-jurisdictional claim-processing rule. Hamer argues that the Rule is a non-jurisdictional claim-processing rule because it has no statutory basis, while Neighborhood Housing Services argues that the Rule is a jurisdictional rule because it prescribes the types of cases over which a court has adjudicatory authority and has a statutory basis. The case is significant from a legal perspective because it will determine whether a violation of Rule 4(a)(5)(C) strips a court of appeals of its jurisdiction to hear a case on the merits, or whether the court may still consider the case on the merits based on equitable considerations or if a party waived or forfeited its right to seek dismissal under the Rule. From a policy perspective, this case is significant because its outcome will affect the judicial system’s interest in finality and because a decision affirming the Seventh Circuit would caution against relying on the legal accuracy of orders from district court judges regarding appeals.
Questions as Framed for the Court by the Parties
Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a non-jurisdictional claim-processing rule because it is not derived from a statute, and therefore subject to forfeiture or waiver by an appellee, or subject to equitable considerations such as the unique-circumstances doctrine.
Petitioner Charmaine Hamer (“Hamer”) worked as an Intake Specialist for the Respondents, Neighborhood Housing Services of Chicago and Fannie Mae’s Mortgage Help Center (“Housing Services”), for several years. Hamer applied for promotions during her time there but never received any. Her employer, Housing Services, maintained that the reason Hamer never received a promotion was because of her performance issues and the superior performance of her co-workers. In 2012, Hamer was terminated from her position as Intake Specialist and offered another position, which she declined.
After her termination, Hamer brought a complaint pro se in the United States District Court for the Northern District of Illinois. The District Court appointed counsel at Hamer’s request. In her complaint, Hamer alleged discrimination and retaliation in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. The District Court granted summary judgment in favor of Housing Services. Hamer’s deadline to appeal this decision was October 14, 2015.
On October 8, 2015, Hamer’s counsel filed a Motion to Withdraw and to Extend Deadline for Filing Notice of Appeal. The District Court granted this motion the same day it was filed and extended the deadline for appeal to December 14. 2015. Hamer, proceeding without an attorney, filed her appeal on December 11, 2015.
Upon receiving the appeal, the Seventh Circuit ordered that Housing Services brief the issue of the timeliness of the appeal. After receiving briefing on the timeliness of the appeal, the Seventh Circuit received briefing on the merits and heard oral argument. The Seventh Circuit then dismissed Hamer’s appeal for lack of jurisdiction, writing that the District Court erred in granting Hamer a 60-day extension because it had no authority to ignore the Federal Rule of Appellate Procedure 4(a)(5)(C) requirement that extensions be no longer than 30 days. In so ruling, the Seventh Circuit did not reach any other issue. Hamer now seeks review by the Supreme Court of this jurisdictional ruling.
JURISDICTIONAL RULE OR NON-JURISDICTIONAL CLAIM-PROCESSING RULE
Hamer contends that Federal Rule of Appellate Procedure 4(a)(5)(C) is a non-jurisdictional claim-processing rule because the 30-day time limit is not derived from 28 U.S.C. § 2107, the statute governing time to appeal to a court of appeals, or any other federal statute. Hamer points to the language of § 2107(c), which does not impose a limit on the length of extensions of time to appeal—the only requirement is the timely filing of the motion for an extension. Further, Hamer maintains that the structure and history of § 2107(c) also support this interpretation. Hamer notes that the second part of § 2107(c) contains an explicit limitation on the length of time for a district court to reopen the time to appeal in certain cases—demonstrating that where Congress intended to impose time limits, it did so explicitly—and that Congress repealed the explicit limit on the length of extensions formerly found in § 2107 in 1991. Finally, Hamer asserts that 28 U.S.C. § 1291, which establishes the Seventh Circuit’s jurisdictional limits, also does not contain the time limitation found in Rule 4(a)(5)(C), nor does any other federal statute. Since Congress has not otherwise expressly stated that the time limitation is jurisdictional, Hamer asserts that the general rule that non-statutory time limitations are non-jurisdictional applies here and is supported by past case law. Since Hamer’s appeal complied with the statute, she contends that the Seventh Circuit erred in holding that it did not have jurisdiction to hear her appeal.
Housing Services counters that Rule 4(a)(5)(C) is a jurisdictional rule because the 30-day time limit has a statutory basis and, by its nature, prescribes what types of cases a court has adjudicatory authority over. Housing Services contends that rules governing the filing of an appeal are a clear example of rules that determine what types of cases a court has adjudicatory authority over, because they necessarily give courts of appeal power to hear a case and remove that power from district courts. Housing Services adds that the Supreme Court has consistently regarded such rules as jurisdictional. Additionally, Housing Services points to the Advisory Committee notes accompanying the 1967 amendments to the Federal Rules of Appellate Procedure, which state that Rules 3 and 4, governing the timely filing of a notice of appeal, were “mandatory and jurisdictional” and note that other rules do not allow Rule 4(a)(5)(C) to be waived, forfeited, or expanded based on equities. Finally, Housing Services contends that the 30-day limit had a statutory basis when the Rule was originally promulgated, and that the 1991 Amendment to § 2107 removing the time limit did not change the jurisdictional nature of the Rule because it was meant to make technical corrections conforming other parts of the statute to the rules of appellate procedure. Since the amendment focused on other parts of Rule 4, did not mention Rule 4(a)(5)(C) or the 30-day limit, and Congress was aware of precedent giving jurisdictional effect to time limits for filing notices of appeal, Housing Services argues that Congress did not intend to strip the Rule of its jurisdictional nature, which is thus still in effect.
RIGHT TO SEEK DISMISSAL WAIVED OR FORFEITED
Hamer next argues that since Rule 4(a)(5)(C) is a non-jurisdictional claim-processing rule, the right to seek dismissal under the Rule can be forfeited or waived and that Neighborhood Housing did so through its actions. Hamer asserts that such rules can be forfeited or waived if a party waits too long to invoke them and that Housing Services forfeited or waived its right to seek dismissal under Rule 4(a)(5)(C) in three ways. First, Hamer maintains that Housing Services forfeited its right by failing to object to the district court granting Hamer the extension of time, which would have allowed the district court to reconsider its decision. Second, Hamer contends that Housing Services forfeited its right by failing to file a notice of appeal or a cross-appeal from the district court’s decision to grant Hamer an extension of time to file an appeal. Such a notice of appeal or cross-appeal has been recognized by some courts of appeals as required in order for an appellate court to review the judgment or order of a lower court. Third, Hamer argues that Housing Services both waived and forfeited its right by twice stating that Hamer had filed a timely Notice of Appeal in its docketing statement, demonstrating that Housing Services was not challenging the timeliness of Hamer’s appeal and that Housing Services did not raise the issue in a timely matter since dismissal was only sought after the Seventh Circuit raised the issue. Thus, Hamer maintains that Housing Services cannot successfully obtain dismissal under Rule 4(a)(5)(C).
Housing Services counters that waiver and forfeiture do not apply to Rule 4(a)(5)(C) because the Rule is jurisdictional; regardless, it adds, there was no waiver or forfeiture because Housing Services addressed the timeliness defect in its pre-merits briefing as required under Seventh Circuit precedent to preserve the defense. Additionally, Housing Services maintains that since Hamer did not previously raise her waiver and forfeiture arguments, she should not be allowed to do so now. Further, Housing Services contends that each failure Hamer points to is inapplicable: Housing Services had no obligation to (1) object to Hamer’s request for an extension because under the court’s local rules the absence of an initial objection does not waive the ability to later object, (2) file a notice of appeal from the entry of the extension because it did not harm Housing Services and whether Hamer was going to appeal or file said appeal before or after the deadline was unknown, or (3) cross-appeal because it would have been inappropriate—Housing Services is not attacking the district court’s judgment or seeking to enlarge its own rights. Finally, Housing Services asserts that its statements in the docket statement do not constitute a waiver or forfeiture because Hamer has failed to cite precedent holding that such statements can constitute a waiver or forfeiture and other circuits have held that similar docket statements are non-binding. Thus, since Housing Services raised the issue before the merits were briefed and did not waive or forfeit its right to seek dismissal under Rule 4(a)(5)(C), it argues that the issue was properly preserved.
Hamer asserts that equitable considerations—specifically the unique circumstances doctrine, which allows the merits of an appeal to be reached on an untimely appeal when the appellant reasonably relied on the lower court’s determination of how long the appeal period was—apply to Rule 4(a)(5)(C) because it is a non-jurisdictional claim-processing rule. Hamer argues that applying the doctrine to a violation of Rule 4(a)(5)(C) is consistent with Supreme Court precedent, citing past cases where the doctrine was applied to non-jurisdictional rules that imposed a time limit. Additionally, Hamer also contends that applying the unique circumstances doctrine to the Rule is consistent with how the Supreme Court has handled non-jurisdictional statutory deadlines in the past—favoring equitable tolling—and more specifically, consistent with § 2107(c) because the statute itself contains the equitable concepts of “excusable neglect” and “good cause.” Finally, Hamer contends that recognizing equitable exceptions to Rule 4(a)(5)(C) is consistent with the Federal Rules and federal law generally because the Rules generally only require disposition without reference to the situation when explicitly stated, federal law generally promotes not disturbing a district court’s order unless it causes harm to the parties, and the Rules do not always require automatic dismissal of cases where willful violations of the Rules occur. Thus, Hamer asserts that the unique-circumstances doctrine should excuse the timing of her notice of appeal because she relied in good faith on the district court’s order granting her motion, was pro se at the time, and complied with the requirements of both § 2107(c) and Rule 4(a)(5)(A).
Housing Services counters that even if Rule 4(a)(5)(C) is non-jurisdictional, it would still be a mandatory claim-processing rule that cannot be altered, rendering equitable considerations inapplicable. Housing Services argues that the Court’s recent holding that Rule 4(b) is a mandatory claim-processing rule supports Rule 4(a)(5)(C) being a mandatory claim-processing rule too. It notes that this argument is further supported by the text and structure of the Rule, which provides a strict time limit but allows certain exceptions, including an extension of time to file an appeal. But nothing in the text of the Rule allows courts to grant an extension beyond 30 days, and Housing Services contends that when a rule already contains exceptions, courts cannot create additional ones. Housing Services also argues that Rule 4(a)(5)(C) is “fundamentally different” than the Federal Rules and statutes of limitations that Hamer cites because, together with Rule 3, Rule 4(a)(5)(C) automatically disposes of untimely appeals and is presumed to be mandatory, while statutes of limitations are presumed to allow equitable tolling. Even if equitable exceptions applied, Housing Services asserts that the unique-circumstances doctrine would not apply here because it is unclear that the doctrine still exists since it has not been applied since 1964, no ambiguity in the Rule is present here—as is required to apply the doctrine—and the mistake in question was made by Hamer’s counsel, not the court.
EFFECT ON PARTIES AND THE COURT SYSTEM
The Academy of Appellate Lawyers (“The Academy”), in support of Hamer and against considering Rule 4(a)(5)(C) jurisdictional, writes that jurisdictional deadlines are “classic traps for the unwary.” The Academy contends that lawyers without appellate expertise, and especially pro se plaintiffs, will reasonably rely on orders from district court judges regarding procedural timeliness and rules. And often, warns the Academy, these district court judges are unlikely to conduct their own research concerning issues that fall within their statutory power, thus creating a situation in which lawyers and pro se plaintiffs reasonably trust district court orders, even though the district judge may be inadvertently acting outside of his or her authority. Moreover, the Academy argues that this trap encourages bad behavior from parties opposing the motion for an extension because if the opposing party knows that a requested extension is too long and thus would rob the appellate court of jurisdiction later, the best strategy would be to not oppose it and instead let the appeal get dismissed later for lack of jurisdiction.
Housing Services counters that the filing of an appeal should be considered a jurisdictional event because it is the clear point at which jurisdiction is transferred from the district court to the appellate court. Housing Services asserts that determining that the Rule is jurisdictional would make it consistent with other similar appellate rules that are regarded as being jurisdictional and would also help prevent trial courts and appellate courts from attempting to exercise simultaneous jurisdiction over a case. In addition, if the Rule is jurisdictional, Housing Services claims that lower district courts will be unable to manipulate the Rule to expand their power over a case, and instead must stay within the confines prescribed by Congress. This is important, explains Housing Services, because it helps maintain the separation of powers integral to our federal government and ensures that lower courts do not overstep their congressionally-prescribed bounds.
The Academy argues that Rule 4(a)(5)(C) should be a claims-processing rule because it serves the policy of finality well and because there is nothing to be gained from treating it as a jurisdictional rule. According to the Academy, mandatory claim-processing rules promote efficiency in litigation because they require that parties follow procedural rules at specified times. The Academy contends that Rule 4(a)(5)(C) encourages the same finality that mandatory claim-processing rules do, because if an opposing party raises an issue related to the Rule, it is mandatory for the District Court to enforce it, and their decisions regarding extension orders are subject to review on appeal. However, when the opposing party does not object to a long extension, the Academy explains that the Rule, if treated like a claims-processing rule, would not preclude the Appellate Court from reviewing the case. This is the right outcome, the Academy contends, because neither federal courts nor appellees who do not object to extensions possess strong enough interests in finality to justify making Rule 4(a)(5)(C) jurisdictional.
Disagreeing, Housing Services argues that precisely because finality is so important, Rule 4(a)(5)(C) ought to be treated as affecting jurisdiction since jurisdiction cannot be changed, waived, or forfeited. This is particularly critical, Housing Services argues, because the Rule deals with appeals, and appeals are integral to bringing about finality of judgments. Housing Services cautions that treating Rule 4(a)(5)(C) as anything but a jurisdictional rule would allow district courts to alter it, which could defer finality in judgments. According to Housing Services, the interests of finality and expediency are best served by considering the Rule jurisdictional and unalterable.
- Vin Gurrieri, Supreme Court to Weigh 30-Day Deadline For Fed. Appeals, Law 360 (Feb. 27, 2017).
- Eric Miller, When are Appellate Time Limits Jurisdictional?, Law 360 (Aug. 16, 2017).