First high court ruling considers appeals deadlines

OCTOBER 2017 TERM

It's well-settled that the deadline for filing an appeal in California state court is jurisdictional. The time to appeal is governed by statute, and neither the trial court nor the Court of Appeal can extend it. Miss the statutory deadline, even by a day, and your appeal will be dismissed.

Things are less clear-cut in federal court.

Federal Rule of Appellate Procedure 4(a) provides that in a civil case, the notice of appeal must be filed within 30 days after entry of the judgment or order at issue, or within 60 days if the United States is a party. Those deadlines are automatically extended if the parties filed certain post-trial motions, or if there is a cross-appeal.

But, unlike in state court, in the federal system there is also another way to extend the deadline: a request to the district court. Rule 4(a)(5) provides that the district court "may" extend the time to file an appeal upon a party's motion. The rule's plain terms limit the length of any such extension, though: "No extension ... 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." Rule 4(a)(5)(C).

What happens when the district court attempts to grant an extension beyond the 30-day limit? The U.S. Supreme Court recently stepped in to answer that question, resolving a split among the federal circuit courts.

The new decision, Hamer v. Neighborhood Housing Services of Chicago, 2017 DJDAR 10627 (Nov. 8, 2017), arose from an employment discrimination suit. The district court granted summary judgment for the defense. Before the notice of appeal was due, plaintiff's then-counsel asked the district court to extend the notice of appeal filing deadline by two months so that the plaintiff would have time to hire new, replacement counsel for the appeal. The district court granted the two-month extension, with no objection from the defendants. Plaintiff filed her appeal to the 7th U.S. Circuit Court of Appeals within the extended deadline.

The defendants initially treated the appeal as timely: Their appellate docketing statement stated that plaintiff had "filed a timely Notice of Appeal from a final judgment." But the 7th Circuit, on its own, questioned whether the appeal was timely. Defendants then argued that the appeal was untimely because the district court's two-month extension exceeded the 30-day cap imposed by Rule 4(a)(5)(C). The 7th Circuit agreed. It dismissed the appeal for lack of jurisdiction.

The Supreme Court reversed. In a unanimous opinion written by Justice Ruth Bader Ginsburg, it held that Rule 4(a)(5)(C)'s cap on extensions is not jurisdictional; "it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee." Because the 7th Circuit had erroneously concluded otherwise, the Supreme Court vacated the judgment and remanded the case for further proceedings.

Hamer's holding was driven by what the court described as a "clear and easy to apply" rule: "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional," meaning that missing the limitation compels dismissing the appeal. If, by contrast, the time limit derives from a federal court rule, it is not jurisdictional. It "must be enforced" if "properly invoked," but it "may be waived or forfeited."

The 30-day extension limit in Hamer was not statutory. There is a statute that permits granting additional time to appeal in cases where the appellant did not receive notice of entry of the judgment. See 28 U.S.C. Section 2107(c)(1). But that provision did not apply, because the plaintiff in Hamer did not dispute that she received notice of entry. And there is no statute specifying the length of an extension where the appellant did receive notice of entry. Accordingly, the extension was governed only by Rule 4(a)(5)(C). Because Rule 4(a)(5)C) is a rule, not a statute, its time limit is not jurisdictional.

In so holding, Hamer tried to clear up some confusion caused by an earlier opinion, Bowles v. Russell, 551 U.S. 205 (2007). In Bowles, as in Hamer, the district court granted more time to appeal than allowed by Rule 4(a). Bowles held that the Court of Appeal lacked jurisdiction to decide an appeal filed within the over-long extension period, just as the 7th Circuit did in Hamer. The difference, Hamer explained, is that the Bowles appellant had not received timely notice of entry of the order at issue. Bowles therefore implicated Section 2107(c)'s statutory cap on extensions. Hamer, by contrast, fell outside of Section 2107(c)'s statutory cap because it did not involve a lack of notice; instead, the Hamer extension limit derived solely from a court rule -- which, as Hamer teaches, is non-jurisdictional.

Hamer is potentially good news for appellants, in that it rejected a strict jurisdictional reading of Rule 4(a)(5)(C). But Hamer left open several key questions. It held only that an appellee can waive or forfeit Rule 4(a)(C)(5)'s time limits; it did not decide what constitutes a waiver or forfeiture, whether defendants' conduct qualified, or whether "equitable considerations" can justify an extension beyond Rule 4(a)(C)(5)'s limits. Until these questions are answered, appellants who rely on an extension longer than that permitted by Rule 4(a)(5)(C) do so at their own peril.

When it comes to notices of appeal, the rule of thumb is better safe than sorry. State courts cannot extend or forgive the notice-of-appeal deadlines. And although federal courts may grant extensions, Hamer illustrates that those extensions can be a trap for the unwary. The most prudent approach remains: Calculate the earliest possible deadline for your notice of appeal, and file within that deadline.