Testing extension statutes in the age of PACER

OCTOBER 2017 TERM

Can you trust a U.S. district judge who grants an unopposed extension of time? In Hamer v. Neighborhood Housing Services of Chicago, 835 F.3d 761 (7th Cir. 2016), the 7th U.S. Circuit Court of Appeals said you can’t and threw Charmaine Hamer out of court. The U.S. Supreme Court will get the last word, beginning with argument set for Oct. 10.

The precise question involves 28 U.S.C. Section 2107(c), which allows district courts to grant unlimited extensions of time to file notices of appeal, and Rule 4(a)(5)(C) of the Federal Rules of Appellate Procedure, which limits the length of those extensions. When a district judge grants an extension longer than what the rule allows, and no party objects, is a notice of appeal void if filed within the time the district court allows but outside the time allowed by the rule?

Hamer was an intake specialist for Neighborhood Housing Services of Chicago and Fannie Mae’s Mortgage Help Center. Those agencies dismissed her, and she rejected transfer to a different position. She sued for alleged discrimination and retaliation. She lost a summary judgment motion, and the court entered a defense judgment.

Hamer’s counsel moved to withdraw from the engagement and for a 60-day extension of the time to appeal so Hamer could find new counsel. The agencies did not object. The district court granted both motions. Problem: Rule 4(a)(5)(C) limited the extension to 30 days after the initial deadline, but nobody read or cited the rule.

Hamer appealed — more than 30 days after the initial deadline but within the 60 days allowed in the court’s order. The parties briefed the appeal in full, declaring at various steps that Hamer had appealed timely. But the 7th Circuit sua sponte ordered the agencies to brief timeliness. The agencies woke up and argued that the appellate court had no jurisdiction because Hamer filed her notice of appeal outside the time the district court was allowed set as an extension.

The 7th Circuit held it had no jurisdiction over the appeal. What of Hamer’s reliance on a clear court order granted without objection? The court stated: “Although we recognize that Ms. Hamer relied upon the district court’s erroneous Order and was misled into believing that she had until December 14, 2015 to file her Notice of Appeal, this Court simply has no authority to excuse the late filing or to create an equitable exception to jurisdictional requirements.”

Hamer could be important because the Supreme Court will address the differences between three kinds of time rules. Ordinary time rules can be overridden by district judges for good cause, and many equitable doctrines can apply in hindsight to excuse violations. Mandatory claim processing rules cannot be overridden, and equitable doctrines probably cannot rescue the violator. Manrique v. United States, 137 S. Ct. 1266 (2017). But an opposing party can forfeit the benefit of a mandatory claim processing rule by failing to raise it before a court enters an order conflicting with the rule.

Jurisdictional rules are as hard and sharp as the blade of a guillotine. The violating party’s head cannot be grafted back once it is cut off.

Nobody in Hamer argues that Rule 4(a)(5)(C) is an ordinary time rule.

Hamer and amicus curiae the American Academy of Appellate Lawyers argue that the rule is a mandatory claim processing rule. The core of the argument is that only Congress can grant or deny appellate jurisdiction. Because 28 U.S.C. Section 2107(c) enacts no limit on the time a district judge can allow for an extension, the court of appeals has indestructible jurisdiction over an appeal filed within the time specified in an order issued under that statute.

To the Academy, deciding the effect of the rule necessarily extends beyond the corners of Hamer’s case. The Academy argues the Supreme Court would establish dangerous precedent by forfeiting judicial branch prerogative except to Congress in a definitive and constitutional statute. And by endorsing a procedural trap that is most likely to snare pro se parties, the court would impair respect for itself and the law. Says the Academy: “Treating the rule here as jurisdictional defies the need to deliver both justice and the appearance of justice.”

Neighborhood Housing and Fannie Mae argue the rule is jurisdictional. To avoid the lack of a statutory deadline, they show there was one until 1991 and they claim Congress didn’t really mean to repeal it. Tough argument. Alternatively, they argue that all deadlines involving notices of appeal are jurisdictional. Why should this one be so? Because the notice of appeal transfers jurisdiction over a case from the trial court to the appellate court.

Why should a time rule without a statutory anchor have force sufficient to prevent court-to-court transfer? That’s another tough argument, and it relies in part on cases that have used “jurisdiction” to refer to concepts other than subject matter and personal jurisdiction. The arguments suggest Hamer offers the Supreme Court another opportunity to clean up the meaning of “jurisdiction” in its decisions.

The parties devote much of their briefs to equitable arguments and whether the agencies forfeited reliance on Rule 4(a)(5)(C). The agencies assert that if the rule is of the mandatory claim processing type, they did not need to raise it in the district court. These subsidiary issues seem unlikely to occupy much of the Supreme Court’s effort. If the rule is of the mandatory claim processing type, the decision to invoke or forfeit plainly occurs at the trial court level. And the invoke-or-forfeit standard is easy to administer, in contrast to equitable excuses that require fact-finding and can pit the lawyers against one another.

Congress adopted extension statutes when parties and counsel often had difficulty determining whether or when a judgment had been entered. Are they needed after the advent of PACER and electronic service? Many would argue they are not. But the Academy points out that people still rely on them, and if they are obsolete, they should be repealed, not construed to death.