All posts by Robert M. Palumbos

Robert M. Palumbos

About Robert M. Palumbos

Rob Palumbos is an appellate lawyer with a track record in over 80 appeals of preserving trial court wins and reversing trial court losses. Read Robert's bio.

Supreme Court to Review Limitations on Appellate Extensions

The U.S. Supreme Court has granted certiorari in a case that will provide much needed clarity about the ability of district courts to extend appeal deadlines. The case, Hamer v. Neighborhood Housing Services of Chicago (No. 16-658), involves the interplay between 28 U.S.C. § 2107(c) and Federal Rule of Appellate Procedure 4(a)(5)(C). The Court will hear the case during its October 2017 term.

Section 2107(c) provides that district courts may extend the deadline to appeal “upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal.” Rule 4(a)(5)(C), however, provides 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, the Seventh Circuit held that the district court lacked authority to grant a 60-day extension of an appeal deadline in response to a motion that was timely filed under 28 U.S.C. § 2107(c). Relying on the Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), the Seventh Circuit held that “Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” Because the notice of appeal was filed after the 30-day limitation in Rule 4(a)(5)(C), the Seventh Circuit dismissed.

In reaching that conclusion, the Seventh Circuit sided with the Second, Fourth, and Tenth Circuits, which had split with the D.C. and Ninth Circuits on the issue. The Supreme Court’s decision in Hamer should resolve the split and provide the bench and bar with much needed certainty about deadlines to appeal.

A Judge’s Perspective on Interlocutory Appeals

It is one thing to know the high standards that govern requests for discretionary interlocutory appeals. It is quite another to hear two federal judges describe first-hand their extreme reluctance to permit such appeals.

Circuit Judge Thomas Ambro of the United States Court of Appeals for the Third Circuit and District Judge Harvey Bartle of the District Court for the Eastern District of Pennsylvania offered that perspective at a meeting of the Philadelphia Bar Association’s Appellate Courts Committee on April 15. The most striking theme of their presentation was that it is—and, in their view, should be—very hard to obtain permission for a discretionary interlocutory appeal.

Judge Bartle recalled entering no more than two Rule 54(b) orders to permit an interlocutory appeal and certifying only one interlocutory appeal under 28 U.S.C. § 1292(b) in his 23-year judicial career. He noted that district judges are very reluctant to permit interlocutory appeals because they tend to cause delay in trial proceedings.

With respect to appeals under § 1292(b) specifically, Judge Bartle said that he rarely sees grounds for a substantial difference of opinion on the legal issue involved. In particular, he noted that district judges tend not to be moved by a split in authority between themselves and a court in another district. The circumstance in which a substantial difference of opinion is most likely to be found is where district judges within the same district are split on an issue.

Judge Ambro discussed interlocutory appeals under § 1292(b) as well. He said that while § 1292(b) is intended to be a flexible path for immediate appeal, it is an avenue that, in his experience, is not often used. The Third Circuit is most likely to take an appeal under § 1292(b) where it sees a controlling issue of law that could recur in other cases. Where the primary rationale for an interlocutory appeal under § 1292(b) is dispute resolution, Judge Ambro said that the court is much less likely to grant permission to appeal.

Judge Ambro also spoke about interlocutory appeals of class certification decisions under Federal Rule of Civil Procedure 23(f). He suggested that the Third Circuit is more likely to grant an appeal under Rule 23(f) if the district court has certified the class than it is where the district court has denied certification. Judge Ambro also reported that certifications under Rule 23(f) have declined significantly over the last three years as compared to the several previous years.

With regard to mandamus petitions, Judge Ambro said, “In my 15 years, I’ve seen mandamus work maybe once.” Mandamus is simply “not part of the culture” of the Third Circuit. Even compared to other types of interlocutory appeals, seeking mandamus stands out as particularly unlikely to be effective.

Litigators who do not often practice in appellate courts can easily underestimate the difficulty in obtaining permission for an interlocutory appeal. By underscoring these difficulties, Judge Ambro and Judge Bartle’s presentation offered an important strategic insight for lawyers practicing in the Third Circuit.

The Dangers of Relying on ECF Notices

Eighteen lawyers at two different law firms received ECF notifications of orders denying their client’s post-judgment motions. But the ECF notifications did not accurately describe the content of those orders. The attorneys relied on the incorrect descriptions in the ECF notifications and did not open the orders or realize that the post-judgment motions had been denied. As a result, they missed the 30-day deadline to appeal a $40 million judgment entered against their client. The Federal Circuit has now affirmed the trial court’s refusal to extend or reopen the deadline to appeal under Federal Rule of Appellate Procedure 4(a)(5) and (6).

This cautionary tale highlights a simple point: a lawyer should open and read every document received by ECF notification. Lawyers who rely on the clerk’s description in notifications do so at their own risk.

The Limits of Common Sense in Judicial Decisionmaking

Judge Posner’s recent opinion in Mitchell v. JCG Industries, Inc. enters a Twilight Zone of appellate decisionmaking that is truly bewildering. The issue was whether the FLSA requires poultry workers to be paid overtime for “donning and doffing” protective clothing at the beginning and end of their lunch breaks. Judge Posner answered that question, in part, by timing how long it took three of the court’s staff to don and doff the clothing. The parties had submitted conflicting testimony about this precise issue at the summary judgment stage. Nonetheless, Judge Posner, joined by Judge Kaanne, affirmed the grant of summary judgment in the employer’s favor based in part on the results of the in-chambers experiment.

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How to Appeal a Sanctions Order

Can a lawyer obtain appellate review of a sanctions order by piggy-backing on her client’s notice of appeal? The Court of Appeals for the First Circuit raised this question sua sponte in a decision issued on March 26, 2014, In re Joannie Plaza-Martinez.

A federal public defender appealed a sanctions order against her as well as her client’s sentence in a single notice of appeal. The notice of appeal was “unarguably proper” as to the client. Whether it was also proper as to the public defender’s appeal of the sanction order was “an unresolved jurisdictional question.”

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