Opinion analysis: Only Congress can make a jurisdictional rule
on Nov 8, 2017 at 5:45 pm
It took less than one month and 10 slip-opinion pages for a unanimous Supreme Court to decide in Hamer v. Neighborhood Housing Services of Chicago that a rule of appellate procedure limiting the length of an extension for filing a notice of appeal is not a jurisdictional rule requiring dismissal of the appeal if the time limit is exceeded, but a “mandatory claim-processing rule” that can be waived or forfeited. Because Congress controls the jurisdiction of federal courts, only Congress can limit jurisdiction, including through regulations governing the time for filing an appeal. Justice Ruth Bader Ginsburg announced a rule of decision “both clear and easy to apply: 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.” The U.S. Court of Appeals for the 7th Circuit therefore erred in dismissing Charmaine Hamer’s appeal, although seemingly untimely under a rule of appellate procedure, for lack of jurisdiction and without considering whether the defendants had forfeited the timeliness argument.
Hamer sued Neighborhood Services of Chicago and Fannie Mae’s Mortgage Help Center in federal court, alleging violations of the Age Discrimination Employment Act and Title VII of the Civil Rights Act of 1964. On September 14, 2015, the district court entered summary judgment for the defendants. Under 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A), Hamer had 30 days, until October 14, to appeal the decision to the U.S. Court of Appeals for the 7th Circuit. On October 8, six days before the deadline, Hamer’s counsel withdrew, requesting that the district court extend the time for filing the notice of appeal by two months. On October 9, the court entered an order granting the requested extension, giving Hamer until December 14 to file the notice of appeal. Hamer, proceeding pro se, filed the notice on December 11.
The case revolves around two provisions – one a statute, one a rule of appellate procedure. 28 U.S.C. § 2107(a) provides that a notice of appeal must be filed with the court of appeals within 30 days after the entry of the judgment, order or decree. Section 2107(c) provides that the district court may “extend the time for appeal upon a showing of excusable neglect or good cause,” so long as the motion for extension is filed not later than 30 days after expiration of the original time for bringing the appeal. The district court also may reopen the time for appeal for 14 days when a party entitled to notice of entry of a judgment did not receive such notice and no party would be prejudiced. Prior to 1991, an extension of time (limited to 30 days) was available only to parties who did not receive notice of the entry of judgment. The 1991 amendment thus allowed any party to receive an extension of time to file a notice of appeal and limited the extension to 14 days for those who did not receive notice of judgment, but imposed no limit on the length of the extension for other parties. Federal Rule of Appellate Procedure 4 builds on Section 2107. Rule 4(a)(5)(A) replicates Section 2107(c), requiring that a motion for extension of time be filed no later than 30 days after the time for appeal has expired and that the applicant make a showing of excusable neglect or good cause. Rule 4(a)(5)(C) then states that “[n]o 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.”
Hamer’s notice of appeal, filed in accordance with the district-court order more than 30 days after expiration of the original time for bringing the appeal, was permissible under Section 2107(c) but untimely under Rule 4(a)(5)(C). But because the limit on extensions of time appears only in the court-made rule and not the congressionally enacted statute, it cannot be jurisdictional. NHSC had argued that the 30-day limit in Rule 4(a)(5)(C) did have a statutory basis because a similar 30-day limit appeared in the pre-1991 version of Section 2107(c) and its removal in 1991 was “probably inadvertent.” The Supreme Court rejected that argument, pointing out that this case never would have been subject to the statute, because the pre-1991 version of Section 2107(c) did not allow any extensions for parties such as Hamer, who had received notice of the entry of judgment. In any event, the court resisted speculating about whether Congress acted inadvertently, but instead presumed that Congress said what it meant and meant what it said.
The remaining hurdle was the Supreme Court’s 2007 decision in Bowles v. Russell, on which the lower court relied, which held that Section 2107(c)’s 14-day limit on extensions in lack-of-notice cases was jurisdictional. The court stated that the 7th Circuit had conflated the distinction between statutory jurisdictional rules and claim-processing rules. Bowles was correct, because the timing prescription was imposed by Congress. But the same rule does not apply in this case, because the limitation derives from Rule 4(a)(5)(C), not Section 2107.
Because the time-extension rule is not jurisdictional, resolution of the case requires consideration of subsidiary issues, including whether NHSC forfeited the timing arguments by not objecting to the overlong extension in the district court or filing its own notice of appeal and whether Rule 4(a)(5)(C) should be subject to equitable exception. The 7th Circuit did not address those issues; the Supreme Court declined to reach them and remanded to give the lower court the first opportunity to do so.