Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
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.
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.
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.
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 email@example.com
To contact the editor responsible for this story: Jessie Kokrda Kamens at firstname.lastname@example.org
Argument transcript at http://src.bna.com/tfw.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)