When is An Extension Not an Extension? When It Raises Jurisdictional Problems
When a district court issues an order extending a filing deadline, it is usually safe to assume that your client will not be prejudiced as long as you file within the period ordered by the court.
However, consider the case of Charmaine Hamer. She recently lost summary judgment on an age-discrimination claim against her former employer and sought to appeal. Prior to the expiration of the 30-day period for filing a notice of appeal prescribed by FRAP 4(a), she asked the district court for an extension. The district court granted her an additional 65 days to file her notice. Hamer then filed the notice within the extended period prescribed by the court, and the case went up to the Seventh Circuit. There was only one problem. Under FRAP 4(a)(5)(C), the district court wasn’t supposed to grant her an extension exceeding thirty days beyond the original 30-day deadline. When the Seventh Circuit discovered that error, it sua sponte asked the parties to brief the question of whether it had jurisdiction to hear the appeal. The Circuit ultimately decided that Hamer had filed her notice of appeal too late and accordingly dismissed her appeal for lack of jurisdiction—even though she had relied on the district court’s ruling granting her a 65-day extension.
This was apparently not the first instance where a party has erroneously been given an extension by a district court that exceeds the time limits set forth in FRAP 4(a)(5)(C). In similar cases, the Second and Tenth Circuits reached the same conclusion as the Seventh Circuit and determined that there is no appellate jurisdiction when a party files a notice of appeal more than sixty days after judgment—even if a district court had given the party permission for the later filing. The Ninth and D.C. Circuits have reached the opposite conclusion and have permitted a late filing that resulted from a district court extension that exceeded the time limit imposed by FRAP 4(a)(5)(C).
Last week, the Supreme Court agreed to hear Charmaine Hamer’s appeal and resolve the Circuit split. The issue for the Supreme Court to decide is whether the 30-day cap on an extension to file a notice of appeal under FRAP 4(a)(5)(C) is jurisdictional or merely a claims-processing rule for the courts.
In Bowles v. Russell, the Supreme Court held that time limits found in the Federal Rules of Appellate Procedure are jurisdictional, at least insofar as they are derived from a statute. In Bowles, a district judge had reopened the period for a party to file his notice of appeal for seventeen days, even though FRAP 4(a)(6) permits the filing period to be reopened for only fourteen days if certain criteria are met. The appellant in Bowles filed his notice of appeal on day seventeen of the reopened period. On those facts, the Supreme Court held that there was no appellate jurisdiction because the notice of appeal was filed outside the fourteen days following reopening permitted by the Rules.
The critical factor in Bowles was that the fourteen-day limit on reopening the period for filing a notice of appeal imposed by FRAP 4(a)(6) was derived from a statute, 28 U.S.C. § 2107(c). According to Justice Thomas writing for the Majority, federal court jurisdiction extends only so far as Congress permits, and in 28 U.S.C. § 2107(c) Congress limited appellate jurisdiction to cases where a party files a notice of appeal within fourteen days of the period for appeal being reopened. Justice Thomas noted, however, that other time limits found in the Federal Rules are not derived from statute, and they therefore do not impose jurisdictional limits on the courts.
Based on the rationale of Bowles, Charmaine Hamer’s appeal will likely be revived. FRAP 4(a)(5)(C)’s 30-day limit on extensions for filing a notice of appeal is not derived from any federal statute; to the contrary, it appears only in the Federal Rules. Accordingly, there is no basis to conclude that the 30-day limit is a jurisdictional constraint imposed by Congress. Instead, the limitations contained in FRAP 4(a)(5)(C) were adopted by the courts to expedite litigation. Although Hamer’s notice of appeal violated FRAP 4(a)(5)(C), her adversary did not object to the extension ordered by the district court and therefore waived any argument based on FRAP 4(a)(5)(C). If the Supreme Court were to rule to the contrary—i.e., that FRAP 4(a)(5)(C)’s time limit is jurisdictional despite its lack of statutory basis—it would be tantamount to holding that all of the time limits found in the Federal Rules of Appellate Procedure are jurisdictional.
The upshot is that litigators should always ensure that a court-ordered extension comports with the Federal Rules. Particularly with respect to appeals, merely complying with a court-ordered extension will not ensure appellate jurisdiction if the extension exceeds what is permitted by the Rules.