By Kevin R. Malloy
Partner, Forde Law Offices LLP
In Federal Court, one cannot simply
rely upon a district court granting an extended deadline in which to file a
notice of appeal. You had better check and make sure the extension is within
the time limit set forth in Federal Rule of Appellate Procedure 4(a)(3)(C). The
Seventh Circuit’s decision in Hamer v. Neighborhood Housing Services of Chicago, No. 15-3764, 2016 WL 4536523 (7th Cir. Aug. 31, 2016), shows that the consequences of
failing to do so can be fatal to your appeal.
In Hamer, the plaintiff, Charmaine Hamer, lost on summary judgment,
and her original deadline in which to file a notice of appeal was October 14,
2015. On October 8, her counsel filed a “Motion to Withdraw and to Extend
Deadline for Filing Notice of Appeal.” The district court granted the motion
and extended the deadline by 61 days to December 14. Hamer filed her notice of
appeal on December 11. Even though Hamer filed her notice of appeal three days
earlier than the extended deadline ordered by the district court, the Seventh
Circuit held that the notice was filed too late and dismissed the appeal. Id. at *2.
Timeliness was not raised until the Seventh
Circuit sua sponte asked for briefing
on the issue. The appellees argued the notice was untimely under Federal Rule of
Appellate Procedure 4(a)(5)(C), which states: “No extension under this Rule
4(a)(5) 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.”
argued, however, that (1) the extension was proper under 28 U.S.C. § 2107(c),
which provides that “[t]he district court may, upon motion filed not later than
30 days after the expiration of the time otherwise set for bringing appeal,
extend the time for appeal upon a showing of excusable neglect or good cause,”
(2) the district court did not consider Rule 4(a)(5)(C) when it granted the
extension and therefore it did not apply; and (3) the appellees waived their
timeliness challenge by not initially challenging it. Hamer, 2016
WL 4536523 at *1.
In rejecting Hamer’s arguments and holding
her notice of appeal was untimely, the Seventh Circuit cited the Supreme
Court’s holding in Bowles v. Russell,
551 U.S. 205 (2007), wherein it held that the statutory requirement for filing
a timely notice of appeal is “mandatory and jurisdictional” and explained the
relationship between the 30-day statutory filing period set out in § 2107(a)
and the district court’s authority to extend that period under § 2107(c) and Federal
Rule of Appellate Procedure 4. Hamer,
2016 WL 4536523 at *1.
the Supreme Court explained that Rule 4 “carries § 2107 into practice,” and in
particular, Rule 4(a)(6), which concerns the district court’s authority to
reopen and extend the time for filing after the lapse of the usual 30 days, is
limited by § 2017(c). Id. (quoting Bowles, 551 U.S. at 208, 213). Since “Congress specifically
limited the amount of time by which district courts can extend the
notice-of-appeal period in § 2107(c), that limitation is more than a simple
‘claim-processing rule,’” and an “when an ‘appeal has not been prosecuted in the
manner directed, within the time limited by the acts of Congress, it must be
dismissed for want of jurisdiction.’” (Emphasis
in original, internal citation omitted.) Id. (quoting Bowles,
551 U.S. at 213).
Using the Bowles analysis, the Seventh Circuit stated “[l]ike Rule 4(a)(6), Rule
4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits the
district court’s authority to extend the notice of appeal filing deadline to no
more than an additional 30 days.” Hamer,
2016 WL 4536523 at *2. Thus, the district court was in error in granting “an
extension that exceeded the Rule 4(a)(5)(C) time period by almost 30 days.” Id.
The Seventh Circuit acknowledged
that Hamer relied upon the district court’s order in thinking she had until
December 14, 2015, to file her notice of appeal, but nevertheless noted that it
“simply has no authority to excuse the late filing or to create an equitable
exception to jurisdictional requirements.” Id.
Finally, the court of appeals rejected Hamer’s waiver argument, since the filing error was
one of “jurisdictional magnitude,” and thus could not be waived or forfeited. Id.
Certainly, the equities of this
situation favored Hamer. Her former counsel moved for an extension beyond the
jurisdictional time limit and the district court erroneously allowed the
extension, without any objection from the other side. Hamer met that deadline,
but she still was out of luck. Hamer
shows that any extensions of a deadline for filing a notice of appeal should be
double-checked against the statutory requirement, not just a court’s order.
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