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Timely Appeals: Hamer v. Neighborhood Housing Services of Chicago

The notorious RBG laid down the hammer on the Seventh Circuit in Hamer v. Neighborhood Housing Services of Chicago, after the Seventh Circuit held that FRAP 4(a)(5)(C)’s time limitations on filing appeals are jurisdictional.  According to RBG (Justice Ruth Bader Ginsburg), time limitations in FRAP 4(a)(5)(C) are “mandatory” (i.e., follow them) but not jurisdictional.

Charmaine Hamer lost her employment discrimination lawsuit against Neighborhood Housing Services of Chicago.  Six days before the deadline for her to appeal, her attorneys moved to withdraw and requested an extension of the appeal filing deadline.  The district court granted both motions and gave Hamer a 60-day extension on her appeal filing deadline.  The Seventh Circuit dismissed the appeal as untimely, because FRAP 4(a)(5)(C) only allows the district court to grant a 30-day extension.  RBG disagreed.

Statutes vs. Rules

The crux of Hamer is the distinction between statutes and rules.  A statute is enacted by Congress (or a state legislature).  A rule is created by courts.  Both must be followed by litigants, but a litigant’s failure to follow a rule is not necessarily fatal.

In Bowles v. Russell, the United States Supreme Court held that time limitations for filing an appeal which are found in statutes are jurisdictional.  551 U.S. 205, 210-12 (2007).  “Jurisdiction” of federal courts is determined by Congress.  Because Congress can decide what type of cases the federal courts can hear, Congress can naturally also decide when the federal courts can hear these cases.  Id.   Therefore, when Congress enacts a time limit on when an appeal must be filed, an appellant’s failure to follow the statutory time limit requires dismissal because these time limitations are jurisdictional.

Hamer dealt with a rule, not a statute.  According to RBG, the rules are different when it comes to dealing with . . . rules.

RBG Lays Down a Rule About a Rule

Unlike statutes, the federal rules of appellate procedure were created by the courts to promote order in litigation.  Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ____, 183 S. Ct. 13, 17 (Nov. 8, 2017).  While time limits in statutes cannot be waived by the parties, defects in timeliness arising under rules can. Id.

Normally, an appeal from a federal district court to a court of appeals must be filed within thirty (30) days from the entry of the judgment or order.  FRAP 4(a)(1)(A).   A party can move the district court for an extension of the time to appeal.  FRAP 4(a)(5)(A).  The district court can only grant an extension of “30 days after the prescribed time or 14 days after the date when the order granting the extension is entered, whichever is later.”  FRAP 4(a)(5)(C).

The respondents tried to argue that FRAP 4(a)(5)(C) had a “statutory basis” because it is similar to an actual statute, 28 U.S.C. 2107(c).  However, 28 U.S.C. 2107(c) only applies if the appellant did not have notice of the judgment against them.   Hamer was well aware of the order ending her lawsuit.

Because Hamer’s time period to appeal arose from a rule, the Seventh Circuit should not have dismissed her appeal for lack of jurisdiction.  According to RBG, time limitations are only jurisdictional if they are prescribed by Congress.  Time periods for appeals found in the rules may be waived or forfeited.  On remand, the Seventh Circuit will need to decide whether Neighborhood Housing Services’ failure to object to the 60-day (as opposed to 30-day) extension waived any right to contest the timeliness of Hamer’s appeal, and/or whether it should hear the appeal because Hamer relied on the district court’s error in allowing her to file her appeal 60 days after the order dismissing her case.

Moving Forward under Hamer

Hamer is the final say in long debate among the federal appellate courts as to whether an appeal must be dismissed when it is untimely under the Federal Rules of Appellate Procedure or whether the courts may excuse the untimeliness.

Moving forward under Hamer, federal litigants need to be aware of the following:

(1) If your timeline to appeal arises under a statute, you need to file within that timeline;

(2) If your timeline to appeal arises under a rule, you should still file within that timeline, but your failure to do so may not always result in dismissal;

(3) If you are responding to an untimely appeal that was filed pursuant to a rule, object to its untimeliness or the federal court can treat your untimeliness objection as “forfeited” and hear the appeal anyway.

Whatever you do, follow the rules.  Although untimeliness may be forgiven in some cases, I highly doubt an appellate court is going to forgive an untimely appellant who simply disregarded the rules.