The Supreme Court issued a decision last week made for appellate wonks, in which the American Academy of Appellate Lawyers (where I am a board member) not only filed an amicus brief supporting the position where the unanimous Court landed (AAAL Brief), but got a shout out in a footnote – Hamer v. Neighborhood Housing Services of Chicago, Opinion (check out footnote 8).
The short takeaway is: when Congress sets a deadline by statute, it’s jurisdictional, but when the time limit comes from a court rule, it’s not jurisdictional. Hence, FRAP 4(a)(5)(C), limiting the extension of time to file a notice of appeal, isn’t jurisdictional.
28 U.S.C. s. 2107 says a notice of appeal must be filed with the court of appeals within 30 days after the entry of the judgment, order or decree, but that the district court may extend the time for appeal on a showing of excusable neglect or good cause, as long as the motion for extension is filed not later than 30 days after expiration of the original time for bringing the appeal. Rule 4 repeats the language of section 2107, but then adds that no extension 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.
In Hamer, a discrimination case, the district court granted summary judgment to the defendants, on September 14, 2015, starting the 30-day appeal clock, or until October 14. On October 8, the plaintiff’s counsel withdrew, and asked the district court to extend the time to file the notice of appeal by two months. On Oct. 9, the district court granted the motion, giving Hamer until December 14. The plaintiff, pro se, filed on December 11. The Seventh Circuit said too late. The Supreme Court remanded.
Don’t start filing late notices of appeal willy nilly. While not jurisdictional, Rule 4 is still a “mandatory claim-processing rule.” The case was remanded to look at issues like whether (1) the defendant forfeited the timing argument by not objecting to the extension exceeding the rule in trial court or in its own appeal or (2) the rule should have an equitable exception. Those issues have yet to be addressed.
What this ruling does mean, is if you win at trial and the folks on the other side ask the district court for more time than allowed under Rule 4 to file their notice of appeal, OBJECT.