The Supreme Court issued its first opinion of the October 2017 sitting, Hamer v. Neighborhood Housing Services of Chicago, No. 16-658, 2017 WL 5160782 (Nov. 8, 2017), early last month. We previously previewed this case when the Supreme Court first granted a writ of certiorari.[1] As expected, the Supreme Court clarified an important issue regarding time limits for filing notices of appeal in civil cases. Specifically, the Supreme Court held that district courts are allowed to extend the time for filing a notice of appeal beyond the thirty-day limit prescribed in the Federal Rules of Appellate Procedure because the deadline is only set by court rule, not statute, and thus is not jurisdictional.
The Supreme Court used Hamer to resolve a circuit split over whether Federal Rule of Appellate Procedure 4(a)(5)(C) is jurisdictional or whether it is a mandatory claim-processing rule. Jurisdictional time limits “deprive[] a court of adjudicatory authority over the case, necessitating dismissal—a ‘drastic’ result.” Hamer, slip op. at 2 (citing Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). These time limits are “not subject to waiver or forfeiture and may be raised at any time in the court of first instance and on direct appeal.” Id. at 2-3 (footnote omitted) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). Indeed, courts are independently obligated to consider jurisdictional timeliness rules, even when not raised by either party. Id. at 3 (citing Shinseki, 562 U.S. at 434). Mandatory claim-processing rules, by contrast, can be waived or forfeited if a party fails to object to an untimely filing. Id. However, “[i]f properly invoked, mandatory claim-processing rules must be enforced.” Id. (citing Manrique v. United States, 137 S. Ct. 1266, 1271-72 (2017)).
Thus, litigants must carefully consider whether a rule establishing a time limit for filing a notice of appeal in a civil case is jurisdictional or simply a claim-processing rule before requesting or responding to a motion to extend the time to file a notice of appeal. If the limit is jurisdictional, the court has no power to grant the litigant’s request. If, by contrast, the rule is merely a claim-processing rule, the opposing party’s failure to object may result in waiver or forfeiture of the timeliness requirements.
In the case of Rule 4(a)(5)(C), the jurisdictional analysis confounded both litigants and courts alike. Indeed, prior to the Supreme Court’s opinion in Hamer, the Ninth Circuit and the D.C. Circuit both considered the rule to be a claim-processing rule, but the Second, Fourth, Seventh, and Tenth Circuits all considered the exact same rule to be jurisdictional.
To resolve this dispute, the Supreme Court re-affirmed the use of a simple test: “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, the time specification fits within the claim-processing category.” Id. at 8 (internal citations omitted). In the context of Rule 4(a)(5)(C), the Court looked to both the language of the rule and the text of 28 U.S.C. § 2107, the statute governing extensions of time to file a notice of appeal. The Court noted that only the Rule, and not the statute, included the relevant time limitation. Id. at 5-6. Specifically, “the statute does not say how long an extension may run,” for cases not involving lack of notice that a final judgment had been entered. Id. at 6. The Court thus held that, “[b]ecause Rule 4(a)(5)(C), not § 2107, limits the length of the extension granted here, the time prescription is not jurisdictional.” Id. at 10 (citing Youkelsone v. FDIC, 660 F.3d 473, 475 (D.C. Cir. 2011)).
The Court ultimately vacated the Seventh Circuit’s opinion and remanded the case for further proceedings. Id. The Court further instructed the Seventh Circuit to consider the following issues on remand: “(1) whether respondent’s failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, (2) whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice; and (3) whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint.” Id. (internal citations omitted). Thus, the Seventh Circuit will likely continue grappling with the precise dictates of this particular subsection of Rule 4.
While the Supreme Court’s opinion in Hamer will likely simplify the analysis for determining whether a time limit is jurisdictional going forward, the key point to remember is that the Federal Rules “do not create or withdraw federal jurisdiction.” Id. at 2 (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)). Indeed, “[o]nly Congress may determine a lower federal court’s subject-matter jurisdiction.” Id. at 1 (quoting Kontrick, 540 U.S. at 452).
[1] Robert M. Palumbos, Supreme Court to Review Limitations on Appellate Extensions, Duane Morris Appellate Review (Apr. 1, 2017), https://blogs.duanemorris.com/appellatelaw/2017/04/01/supreme-court-to-review-limitations-on-appellate-extensions/.