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.”
Hamer 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.
In Bowles, 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.