Which Appellate Deadlines Are Jurisdictional?

Hamer v. Neighborhood Housing Services of Chicago, ___ U.S. ___ (2017).  In Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court of the United States explained that an appeal filing deadline mandated by statute is jurisdictional, meaning that a late filing requires dismissal of the appeal.  But a time limit contained in a rule of a court is not jurisdictional, and can be forfeited (most of us would say “waived,” but the Court explained the difference between waiver and forfeiture, as discussed below) if not raised by the appellee.  This distinction arises from the fact that “[o]nly Congress may determine a lower federal court’s subject-matter jurisdiction.”

This unanimous opinion by Justice Ginsburg, the first signed opinion of the current term, reversed a Seventh Circuit Court of Appeals ruling in an employment discrimination case that did not properly apply this distinction.  Justice Ginsburg noted , however, that her own Court had “sometimes overlooked this distinction.”

Here is what happened.  The District Court entered summary judgment against plaintiff.  She and her attorneys disagreed as to whether to appeal.  Before the deadline for an appeal, plaintiff’s attorneys filed two motions with the District Court.  One motion sought leave to withdraw as counsel due to the disagreement about whether to appeal.  The other motion requested a two-month extension of the deadline to appeal.  Defendants did not oppose either motion, and the District Court granted them both.

When plaintiff appealed, the Seventh Circuit questioned whether the appeal was timely, since Federal Rule of Appellate Procedure 4(a)(5)(C) caps extensions of time to file a notice of appeal at 30 days.  The defendants for the first time then argued that the appeal was untimely.  The Seventh Circuit then dismissed the appeal for lack of jurisdiction.

The Supreme Court reversed, based on the distinction between statute-based (jurisdictional) and rule-based (not jurisdictional) deadlines.  The Court remanded for further proceedings as to whether the appeal was timely, since issues such as whether there were equitable exceptions to the Rule 4 time limit and whether defendants-appellees had forfeited any untimeliness argument, were yet to be decided.  The Court’s ruling here was only that the finding of no jurisdiction to hear the appeal was error.

The Seventh Circuit had relied on a sentence in Bowles that said “the taking of an appeal within the prescribed time is mandatory and jurisdictional.”  That broad statement was correct as applied to Bowles, which dealt with a time limit imposed by Congress.  But it did not apply here, where a court rule created the deadline.  Other Circuit Courts had made that same mistake.  Going forward, that should not happen again.

As regards waiver vs. forfeiture, Justice Ginsburg had this to say, in a footnote.  “The terms waiver and forfeiture– though often used interchangeably by jurists and litigants– are not synonymous.  Forfeiture is the failure to make a timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.”  Thus, many of the contentions that counsel argued have been “waived” should in fact invoke an argument of “forfeiture” instead.  A narrow distinction, but one worth keeping in mind.

 

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