Member, Dykema Gossett PLLC
The recent opinion by the United States Court of Appeals for the Seventh Circuit in Banks v. Chicago Board of Education, 2014 US App. LEXIS 7740 (7th Cir., Apr. 24, 2014), serves as a firm reminder that the 28-day time period to file a Rule 59(e) motion is strict and unforgiving.
Banks sued her former employer and supervisor alleging racial discrimination and retaliation in violation of Title 7 of the Civil Rights Act of 1964, as well as related violations of federal and state law. The district Court granted summary judgment in favor of all of the defendants on all claims. Banks then filed a motion to “alter entry of summary judgment” under Rule 59(e). However, Banks filed her motion on the 29th day following the grant of summary judgment. The district court considered the motion on the merits and denied it six days later. Banks filed her notice of appeal within 30 days of the denial of her Rule 59(e) motion.
The Seventh Circuit questioned the scope of its jurisdiction on appeal. The court requested that Banks file an additional brief addressing jurisdiction, but was ultimately not persuaded. The reviewing court concluded that, because the motion to “alter entry of summary judgment” was filed one day late, it did not toll the time to appeal from the summary judgment order. The motion instead would be treated as a Rule 60(b) motion. Appellate review was therefore limited to the denial of relief under Rule 60(b), and Banks forfeited direct review of the order granting summary judgment.
The Seventh Circuit began its Rule 60(b) analysis by noting that relief under that rule is limited, lest it be used to circumvent the time limit set out in Rule 4. A party is entitled to relief under Rule 60(b) when the party raises an issue that could not have been raised under direct appeal. The reviewing court found that the district court did not abuse its discretion in denying Banks’ motion under the Rule 60(b) standard because the only arguments she raised on appeal were ones that could have been raised in the direct appeal, which she forfeited.
The reviewing court also declined to find that Banks’ motion raised “exceptional circumstances” within the catchall provision provided in Rule 60(b)(6). The court noted that this provision had a narrow application designed to avoid Rule 60(b) being used as a substitute for direct appeal.
Finally, the reviewing court found that it made no difference for purposes of appellate jurisdiction that the district court considered the untimely motion on the merits. The district court’s denial of an untimely motion could not vest the Seventh Circuit with jurisdiction over the propriety of the summary judgment ruling.
Recommended Citation: Rosa M. Tumialán, Scope of Appellate Jurisdiction Narrowed by Untimely Rule 59(e) Motion, The Brief, (May 29, 2014), http://applawyers-thebrief.blogspot.com/2014/05/scope-of-appellate-jurisdiction.html.
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