By: Kimberly Glasford

The United States Supreme Court has held that a court-prescribed time limit for pursuing an appeal constitutes a “mandatory claim-processing rule” subject to forfeiture and waiver, not a jurisdictional rule. Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13, 16-18 (2017). The United States Court of Appeals for the Seventh Circuit recently determined that despite the non-jurisdictional nature of such rules, two previously recognized exceptions to mandatory appellate procedure were invalid. In re Wade, No. 18-2564, _ F.3d _, 2019 WL 2482413 (7th Cir. June 14, 2019).

The reviewing court in Wade examined Rule 8006 of the Federal Rules of Bankruptcy Procedure, which applies where a bankruptcy court has certified an order for direct review in a court of appeals. Subsection (g) states that “[w]ithin 30 days after the date the certification becomes effective under subdivision (a), a request for permission to take a direct appeal to the court of appeals must be filed with the circuit clerk.”

In Wade, the bankruptcy court denied the debtor-appellants’ motion for sanctions against the law firm-appellee for purportedly violating the automatic bankruptcy stay. The court then certified that order for direct appeal to the court of appeals due to the disputed meaning of a key statute. The debtor-appellants then filed a timely notice of appeal but did not file a petition for permission to appeal, as required by Rule 8006(g). Consequently, the law firm-appellee moved to dismiss the appeal.

The Seventh Circuit determined that as a procedural rule, rather than a statutory one, Rule 8006(g) was mandatory, not jurisdictional. Because the law firm-appellee had properly invoked the rule, the court was required to enforce it.

In reaching this decision, the Seventh Circuit rejected the debtor-appellants’ reliance on prior Seventh Circuit decisions declining to dismiss direct appeals for the appellants’ failure to request permission to appeal under the Bankruptcy and Appellate Rules. Those cases had found dismissal was unwarranted where (1) the record contained the “functional equivalent” of the requisite petition or (2) the defect was harmless. Yet, the Seventh Circuit found those decisions could not be reconciled with the Court’s recent decisions enforcing mandatory rules. Accordingly, the appeal was dismissed, leaving the debtor-appellants to begin the ordinary appeal process in the district court.

This case is a reminder that non-jurisdictional, mandatory rules are not toothless. Cases creating exceptions to mandatory rules should be taken with a grain of salt, particularly considering that the Court has reserved ruling on whether an equitable exception could ever apply to a mandatory claim-processing rule. Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 n.5 (2019). 

On Monday, July 8, 2019, from 4:30 - 6:30 p.m., the 7th Circuit Bar Association will hold a reception honoring Judge Rebecca R. Pallmeyer's investiture as Chief Judge.

From the association's website:

Please join the Chicago legal community in honoring Judge Pallmeyer. After nearly 30 years of esteemed service, Judge Pallmeyer will be the first female appointed as Chief Judge in the 200-year history of the United States District Court for the Northern District of Illinois. The reception will be held in the Grand Ballroom at the Standard Club.

Links to register and to view a list of sponsors can be accessed at the 7th Circuit Bar Association's website, https://www.7thcircuitbar.org/. 

On June 20, 2019, the Appellate Lawyers Association will host its Installation Luncheon of Gretchen Harris Sperry as the 52nd President of the ALA. The ALA's Nominating Committee will present the following slate of officers and directors for election at the meeting:

Officers (2019-2020):
Vice-President: John M. Fitzgerald
Secretary: Scott L. Howie
Treasurer: Jonathan B. Amarilio 

Directors (2019-2021):
Director (4th Dist.): John Gabala
Director (1st Dist.): Kimberly Glasford
Director (1st Dist.): Carson Griffis
Director (2nd Dist.): Richard Harris 

Date: Thursday, June 20, 2019 

Time: 12:00 to 2:00 p.m. 

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here. 

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included. 

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee. 

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to: 

Chris Teed 
Appellate Lawyers Association 
1717 North Naper Boulevard, Suite 102 
Naperville, Illinois 60563 

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

By: Carson R. Griffis

A recent decision of the U.S. Court of Appeals for the Seventh Circuit shows that parties cannot try to make an otherwise nonfinal order final and appealable by agreeing to dismiss the remaining claims in the case subject to the outcome of an appeal.

In West v. Louisville Gas & Electric Co., 920 F.3d 499 (7th Cir. 2019), the plaintiff sued two different defendants over the use of a fiber optic cable on a utilities transmission tower on his property: the company that installed the wire (Charter Communications) and the utility that owned the tower (Louisville Gas & Electric). The district court dismissed the plaintiff’s claims against Charter, and the plaintiff wanted to appeal. But his claims against Louisville were still pending, so the dismissal of the Charter claims was not final and appealable. To resolve this problem, the plaintiff and Louisville struck a deal: the plaintiff agreed to dismiss his claims against Louisville with the condition that he could reinstate them, without objection, if he won on appeal. If the plaintiff lost on appeal, he agreed not to refile his claims.

The Seventh Circuit dismissed the plaintiff’s appeal, finding it lacked jurisdiction. Because the dismissal of the claims against Louisville was conditional, it lacked “the binding effects of a truly final judgment.” So long as the plaintiff had reserved the right to reinstate its claims, there was no final judgment disposing of all claims in the district court. The court also found that the conditional dismissal was “the very sort of attempt to manufacture appellate jurisdiction” it had disapproved of in other cases. The court stressed that litigants cannot agree to finality to create appellate jurisdiction.

The court also noted that the plaintiff had three other options for immediately appealing the district court’s ruling. First, he could have asked the district court to enter a final judgment as to the claims against Charter under Federal Rule of Civil Procedure 54(b) (although the Seventh Circuit acknowledged that this would have been “a stretch” due to the similarity of the plaintiff’s claims against both defendants). Second, he could have sought permission to pursue an interlocutory appeal under 28 U.S.C. § 1292(b). Third, he could have disclaimed his right to reinstate the claims against Louisville while on appeal. If the plaintiff waived his right to reinstate the claims, then the district court’s judgment would have been final and the Seventh Circuit would have jurisdiction. But the plaintiff refused to do so.

West shows that parties must be careful to ensure all claims have been disposed of before appealing. And conditioning a dismissal of certain claims on the outcome of an appeal will be viewed as an improper attempt to manufacture appellate jurisdiction. West also lays out a party’s options for appealing an order that disposes of less than all of the claims in a case: Rule 54(b), 28 U.S.C. § 1292(b), or abandoning the still-pending claims.

The Illinois Supreme Court Commission on Access to Justice has approved four new suites of standardized Appellate Court Forms:

1. Docketing Statement;
2. Request for Preparation of Record on Appeal;
3. Bystander's Report or Agreed Statement of Facts; and
4. Request for Report of Proceedings (Transcripts).

The Commission's standardized forms are designed to promote, facilitate, and enhance equal access to justice with an emphasis on access to the Illinois Civil Courts. They may be used for filing in any of the five Districts of the Appellate Court statewide. The new forms are available here.

By Louis J. Manetti, Jr.
Hinshaw & Culbertson LLP

The Supreme Court recently clarified that the 14-day window to appeal from a federal district court order granting or denying class certification is not subject to equitable tolling. In Nutraceutical Corp. v. Lambert, the plaintiff, Lambert, sued Nutraceutical Corp. and alleged that its dietary supplement marketing violated a California consumer protection law. 586 U.S. ___ (2019). Although the district court initially certified a class, on February 20, 2015, it decertified the class. At that point, Lambert had 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal. See Fed. R. Civ. P. 23(f).

Instead, 20 days after the decertification order, Lambert moved for the district court to reconsider the order. On June 24, 2015, the court denied the motion to reconsider. Fourteen days after that, Lambert petitioned the Ninth Circuit to take the appeal on the decertification order. Nutraceutical’s response to the petition argued that the petition was untimely. The Ninth Circuit deemed the appeal timely. It reasoned that Rule 23(f)’s time limit was nonjurisdictional, and therefore equitable remedies softening the deadline were available.

The Supreme Court rejected the Ninth Circuit’s approach. Rule 23(f) authorizes federal appellate courts to permit a discretionary appeal if the petition is filed within 14 days after the order is entered. The Court began by noting that because Rule 23’s time limitation is in a procedural rule, and not a statute, it is properly classified as a nonjurisdictional claim-processing rule. Thus, the opposing party can waive or forfeit a noncompliance argument. But merely because a rule is not jurisdictional does not render it “malleable in every respect.” Specifically, some claim-processing rules are “mandatory” in the sense that the rule is unalterable if noncompliance is properly raised.

With that, the Court stated that whether a rule allows for equitable tolling turns on whether the rule’s text leaves room for that flexibility. It first noted that Rule 23(f) is phrased unequivocally. And while that, by itself, was not determinative, the Federal Rules of Appellate Procedure singled out Rule 23(f) for inflexible treatment. Although FRAP 2 authorizes appellate courts to suspend the application of the rules in a particular case on a showing of good cause, it also warns: “except as otherwise provided in Rule 26(b).” And Rule 26(b), while allowing for extensions of time generally, specifies that a court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Given the clear expression of “rigorous enforcement”, compliance with 23(f) could not be suspended on equitable tolling grounds. The Court concluded that this comported with applicable precedent, and was fully consistent with the notion that, because interlocutory appeals disrupt the rule that appeals must ordinarily wait until the end of a case, Rule 23(f)’s time limit would be “purposefully unforgiving.”

Finally, the Court specified that the petition for leave to appeal would have been timely if the motion to reconsider had been filed within the 14-day appeal window. Lambert argued that courts of appeal uniformly hold that, so long as a motion to reconsider is filed within 14 days of an order granting or denying class certification, a Rule 23(f) petition filed within 14 days of the resolution of the reconsideration motion is timely. The Court explained that Lambert’s argument that the same outcome should occur here relied on a mistaken premise. A motion to reconsider filed “within a window to appeal” does not toll anything. Instead, it renders an otherwise final decision of a district court not final for the purposes of appeal. It determines when the 14-day window begins to run—not the availability of tolling. Thus, Lambert’s petition for leave to appeal was untimely, and the case was remanded for further proceedings. 

This case should serve as a clear warning that, in the wake of an order granting or denying class certification, whether a litigant intends to move to reconsider the order or to petition the appellate court for review, that action must be taken within 14 days.

On June 6, 2019, the Appellate Lawyers Association (ALA), the Will County Bar Association (WCBA), the LaSalle County Bar Association (LCBA), and the Peoria County Bar Association (PCBA) will present their Roundtable Luncheon Featuring the Justices of the Illinois Appellate Court, Third District. This event provides a unique opportunity to interact with the Justices and gain the perspective of the other side of the bench>


Date: Thursday, June 6, 2019


Time: 12:00 p.m. to 1:30 p.m. with lunch served at 12:30 p.m.


MCLE: Participants will earn one hour of MCLE credit for the luncheon. The ALA is an approved MCLE provider>


Location: Uptown Grill (banquet room), 601 1st Street, LaSalle, Illinois


Cost: $25 for public-sector members of the ALA, WCBA, LCBA, or PCBA; $30 for private-sector members of the ALA, WCBA, LCBA, or PCBA; $35 for public-sector nonmembers; and $40 for private-sector nonmembers. Lunch is included.


PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


Questions? Call (630) 416-1166, ext. 303


Registration details may be found below.


Register:


1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.


2. Mail your completed registration form along with a check payable to ALA to:


Chris Teed 
Appellate Lawyers Association 
1717 North Naper Boulevard, Suite 102 
Naperville, Illinois 60563


Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

On Wednesday, May 29, 2019, the Appellate Lawyers Association will present its Annual Roundtable Luncheon with the Judges of the United States Court of Appeals for the Seventh Circuit. The luncheon provides an opportunity to converse with the Judges in an informal setting and will feature a panel discussion with several of the Judges. Attendees may ask questions and discuss appellate practice with the Judges and will gain the perspective of the other side of the bench. 

Date: Wednesday, May 29, 2019

Time: 12:30 p.m. to 2:00 p.m. (Please note start time.)

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note that the Union League Club enforces a dress code, which can be accessed here.   

 
MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.
 
Cost: $40 for public-sector members; $50 for private-sector members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Registration details may be found below.

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to: 

Chris Teed 
Appellate Lawyers Association 
1717 North Naper Boulevard, Suite 102 
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

In honor of the 200th anniversary of federal courts in Illinois, the U.S. District Court for the Northern District of Illinois is presenting "An Interview with Judge William J. Bauer: Reflections on a Six-Decade Career in Public Service Law." Judge Bauer will reflect on his 65 years as a public servant, including his 48 years on the federal bench. 


Judge Bauer is a Senior U.S. Circuit Judge of the U.S. Court of Appeals for the Seventh Circuit. Judge Bauer served in the U.S. Army from 1945 to 1947, before earning his undergraduate degree from Elmhurst College and his law degree from DePaul University College of Law. He worked in private practice and served as an Assistant State's Attorney before being elected as DuPage County State's Attorney. He served as a Circuit Judge for the Eighteenth Judicial Circuit, DuPage County, before being appointed as the U.S. Attorney for the Northern District of Illinois from 1970 to 1971. In 1971, he was nominated to the U.S. District Court for the Northern District of Illinois, where he served until he was elevated to the Seventh Circuit in 1974.


The event will take place on June 13, 2019, from 3:00 p.m. to 4:00 p.m. in the Dirksen United States Courthouse, 219 S. Dearborn, Courtroom 2141, Chicago, Illinois. A reception will follow in the Court History Museum on the 21st Floor. 


Those interested should RSVP to: Bauer_RSVP@ilnd.uscourts.gov.

By Don Sampen
Clausen Miller, P.C.

The Illinois Supreme Court, over dissent, recently reaffirmed the principle that an original action for a writ of prohibition is not to be used as a substitute for an appeal in pending litigation. Edwards v. Atterberry, 2019 IL 123370.

A jury found the petitioner, Edwards, guilty of two misdemeanor violations of the Timber Buyers Licensing Act, 225 ILCS 735/1 et seq. Specifically, he was charged with the offense of unlawfully acting as a timber-buying agent for multiple licensed timber buyers.

Following conviction he filed a motion with the Supreme Court for a supervisory order and for leave to file a complaint for a writ of prohibition. Essentially he sought to establish that he was charged with violating regulations and not a statute defining a criminal offense. He claimed, therefore, that the trial court lacked subject-matter jurisdiction. The relief he sought was directed against the trial court judge, Judge Michael L. Atterberry, of the Menard County Circuit Court.

As an initial matter, the Supreme Court denied the motion for a supervisory order but granted Edwards leave to file a complaint for a writ of prohibition with the Court. Pending disposition of the complaint, the Court stayed the circuit court proceedings, including the conducting of a sentencing hearing.

Analysis

Following briefing, Justice Rita B. Garman, writing for the Court, denied the writ. She began by noting that a writ of prohibition lies to prevent a judge from acting where he or she has no jurisdiction to act or to prevent a judicial act beyond the scope of a judge's legitimate jurisdictional authority.

The four requirements for the writ, according to Garman, are that (a) that the action to be prohibited be of a judicial or quasi-judicial nature; (b) the writ be directed against a tribunal of inferior jurisdiction; (c) the action being prohibited be outside the tribunal's jurisdiction, or if within its jurisdiction, beyond its legitimate authority; and (d) no other adequate remedy be available to the petitioner.

Garman focused just on the fourth requirement, concerning the available of an alternative remedy. She noted Edwards’ argument that the circuit court had already ruled that it had jurisdiction and, over his objection proceeded to trial. 

Edwards claimed that he now could be sentenced to jail and that, based on his conviction, the Department of Natural Resources had already initiated proceedings against his license. He thus contended that he would be subject to irremediable harm if he were required to press his claim through the normal appellate process.

Garman observed, however, that Edwards' time to appeal had not expired, that the normal appellate process was fully available to him, and that original actions of prohibition could not be used to circumvent the normal appellate process. Rather, the remedy was available only in rare instances where none of the ordinary remedies were available or adequate.

As for Edwards' complaints that his timber buyer's license could be adversely affected and his livelihood harmed, Garman found that he was essentially complaining of collateral consequences that may occur pending appeal, and that such consequences can attend any normal appellate process. 

The trial court, in any event, had not ordered that his license be revoked, he offered only a vague portrayal of the situation surrounding his timber buyer's license, and he provided no documentation of the license revocation proceedings. Under these circumstances, Garman said that Edwards had not demonstrated irremediable harm.

In sum, the Court found that Edwards had failed to demonstrate the requirement that an appeal of his conviction did not provide him an adequate alternative remedy. Hence, the Court denied issuance of the writ.

Justice Thomas L. Kilbride dissented. He argued that Edwards had been convicted of a regulatory offense that does not exist and that he had not even violated the regulation relied on by the state. Kilbride therefore argued that the Court should exercise its supervisory authority to direct the circuit court to vacate Edwards' convictions.

Key Point:

A petitioner seeking issuance of a writ of prohibition must meet all four traditional requirements for issuance of the writ, including the requirement that no other adequate remedy is available to the petitioner. Pursuing an appeal in the underlying litigation normally will constitute an adequate alternative remedy.