SCOTUS Considers Appellate Jurisdiction Over Extended Appeals

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By Melissa Heelan Stanzione

A conflict between federal law and a rarely invoked federal rule of appellate procedure took center stage during oral arguments at the U.S. Supreme Court Oct. 10 ( Hamer v. Neighborhood Hous. Servs. of Chicago , U.S., No. 16-658, argued 10/10/17 ).

Justice Ruth Bader Ginsburg dominated the questioning in an area of law considered to be one of her areas of expertise.

Justice Stephen G. Breyer, who often peppers attorneys with questions and hypotheticals, remained silent during the arguments.

The star of the morning, however, was Fed. R. App. P. 4(a)(5)(C), which limits the extension of time to appeal a decision to 30 days after the original time to appeal.

The arguments focused on whether FRAP 4(a)(5)(C) is a jurisdictional rule, which is not subject to waiver, forfeiture or equitable remedy, or a claim-processing rule.

The high court seemed to favor treating it as a claim-processing rule. This would mean that because the respondents didn’t object to the 60-day extension before the district court, they forfeited the argument that Hamer’s appeal was untimely under FRAP 4(a)(5)(C).

The petition asks whether FRAP 4(a)(5)(C) can deprive an appellate court of jurisdiction over an appeal that is statutorily timely.

There is a circuit split on the issue, with the Fourth, Seventh, and Tenth circuits finding it can.

The Ninth and D.C. circuits have held that the rule is subject to equitable considerations, such as waiver.

Time to Appeal

Petitioner Charmaine Hamer sued her employers, Neighborhood Housing Services of Chicago and Fannie Mae’s Mortgage Help Center, for age discrimination after they fired her.

The district court granted summary judgment for the employers but gave Hamer 60 days to find representation on appeal because her counsel withdrew. Hamer filed her appeal within that time frame.

Under federal law, a district court can extend the time to file a notice of appeal for good cause. The law sets no limit on the length of the extension.

Hamer alleges that the U.S. Court of Appeals for the Seventh Circuit shouldn’t have dismissed her appeal for lack of jurisdiction.

The Seventh Circuit’s order held that the timing of Hamer’s appeal from the district court divested it of jurisdiction under FRAP 4(a)(5)(C)'s 30-day limit.

It found that the rule is a mandatory, jurisdictional rule, that Hamer’s appeal was untimely under it, and that it had no authority to create an equitable exception to it.

Not Jurisdictional

Hamer argued at the Supreme Court that only Congress can limit the courts of appeals’ jurisdiction. But that Rule 4(a)(5)(C) is a judge-made rule.

Accordingly, the rule can’t be a jurisdictional rule, Jonathan Herstoff argued for Hamer. It’s a mandatory claim-processing rule and Hamer is entitled to an equitable remedy, he said.

Herstoff is an associate with Haug Partners, New York.

Can a rule ever be jurisdictional without being codified in a statute? Justice Elena Kagan asked Herstoff.

No, because of this court’s precedents and Article III of the Constitution, “which says that it is for Congress to establish the lower courts,” Herstoff said.

We’ve drawn the line “between statute and rule pretty clearly,” Ginsburg said.

Ginsburg also broached the statute/rule divide with the respondents.

The 30-day limit doesn’t appear in the United States Code, Ginsburg said to Damien G. Stewart, counsel for the respondents.

Stewart is an attorney with Fannie Mae, one of the respondents, in Washington.

“True,” but that was an “inadvertent omission,” he said.

Before it was amended in 1991, 28 U.S.C. §2107(c), the federal law that says a district court can extend the time to file a notice of appeal for good cause, did set a 30-day limit.

Is there any legislative history to show this omission was inadvertent? Justice Sonia Sotomayor asked.

No, Stewart admitted.

What do you make of the argument that it was left out inadvertently?” Ginsburg asked Herstoff.

“I think the plain language of the statute is very clear, and this court presumes that Congress intends its amendments to have effect,” Herstoff said.

Congress made a “specific decision” which parts to incorporate and which parts not to, he said.

Forfeiture, Equity

Hamer also argued that because the respondents didn’t object to the district court’s extension, they waived the argument that her appeal was untimely under FRAP 4(a)(5)(C).

Once you knew of the extension, you were free to tell the district court judge that it was a mistake, Ginsburg said to Stewart.

There was no occasion for us to do so,” Stewart said.

“Could you slow down and tell me why not? You were served with notice of the motion, weren’t you?” Sotomayor said.

There wasn’t any guidance that we’d have to, Stewart said.

Hamer further alleged that because this is a claim-processing rule, she was entitled to an equitable remedy.

Hamer didn’t act in bad faith and was misled, Herstoff said.

Who misled her? asked Sotomayor.

She was misled by the district court’s order and also perhaps by her attorney requesting the 60-day extension, Herstoff said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Argument transcript at

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