The Supreme Court Speaks to Exceptions to Appellate Time Limits. In the minefield of legal procedures, perhaps none strikes fear in the hearts of lawyers and clients alike as much as a missed deadline. In several high-profile cases in recent years, courts have shown little tolerance for litigants who missed deadlines for seeking appellate relief, even by as little as a few days. See Two-Way Media LLC v. AT & T, Inc., 782 F.3d 1311, 1314 (Fed. Cir. 2015) (affirming district court’s denial of a request to reopen or extend the time to notice an appeal after party missed the deadline under Federal Rule of Appellate Procedure 4). In Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13 (2017), the Supreme Court provided some clarity as to when a missed deadline is fatal to a party’s future appellate rights, and when an untimely filing may be excused or an exemption granted.
The Supreme Court in Hamer adopted a brightline rule on the question of when a missed deadline creates a jurisdictional bar to relief and when it does not. Specifically, the Court held that “an appeal filing deadline prescribed by statute will be regarded as ‘jurisdictional,’’” whereas “a time limit prescribed only in a court-made rule … is not jurisdictional” but only a “mandatory claim-processing rule subject to forfeiture.” This rule follows from the constitutional principle that “[o]nly Congress may determine a lower federal court’s subject-matter jurisdiction.” The Court further explained that while a “jurisdictional defect is not subject to waiver or forfeiture and may be raised at any time in the court of first instance and on direct appeal,” mandatory claim-processing rules are “less stern” because they “may be waived or forfeited” by a party.
The Hamer case involved an order by the district court extending the time for the plaintiff, Charmaine Hamer, to file a notice of appeal from an adverse judgment by two months, consistent with statutory authorities that allow extensions but in violation of Federal Rule of Appellate Procedure 4(a)(5)(C), which limits extensions to 30 days. Hamer filed the notice more than 30 days after the original deadline, but within the time ordered by the court. On appeal, the defendants did not challenge the timeliness of the notice of appeal. The Seventh Circuit, however, raised the issue sua sponte and ultimately dismissed the appeal, ruling that the notice’s inconsistency with Rule 4(a)(5) (C) stripped the court of appellate jurisdiction. Noting that the defendants had repeatedly conceded that the notice of appeal was “timely” based on the district court’s extension, the Supreme Court ruled that the Seventh Circuit “erroneously treated as jurisdictional Rule 4(a)(5)(C)’s 30-day limitation on extensions of time to file a notice of appeal.”
Hamer’s holding that court-made appellate deadlines are not jurisdictional provides some relief to litigants whose appeals are jeopardized by a missed deadline. It also raises the question of what other deadlines qualify as mere “mandatory claim-processing rules” subject to waiver or forfeiture. While a deadline to file a notice of appeal is rarely forgotten by the parties, other deadlines in trial practice are of less obvious importance for preserving issues for appeal.
An apt example is in the context of motion practice during and after trial for judgment as a matter of law. Federal Rule of Civil Procedure 50(b), like Federal Rule of Appellate Procedure 4, sets a court-made deadline: a motion for judgment as a matter of law must be made “[n]o later than 28 days after the entry of judgment.” While a timely Rule 50(b) motion will toll the 30-day time to notice an appeal, if the motion itself is not timely, courts have held that it will not toll the 30-day time to take an appeal. See, e.g., Dotson v. City of Syracuse, 549 F. Appx. 6, 7 (2d Cir. 2013). The decision in Hamer suggests that such deadlines, too, are subject to waiver and forfeiture should a party neglect to raise an opponent’s noncompliance as a grounds for dismissal.
These and other district court deadlines are also critical to determining the scope of issues that are preserved for appeal. It is commonplace in appellate practice for parties who fail to raise issues in district court to be barred from asserting them on appeal. Likewise, a Rule 50(b) post-trial motion may be limited to issues which the party adequately raised in a Rule 50(a) motion before the case is submitted to the jury. These considerations mean that litigants must be diligent not only in their post-trial motions, but in the moment during trial, to ensure that arguments they may raise on appeal are preserved.
The risks of untimely or inadequate preservation of issues at trial underscore why litigants must always act in trial courts with an eye to the future appellate rights. Parties may often view trial and appeal as distinct stages of a case, often led by separate legal teams or even different firms. Quinn Emanuel adheres to the view that integrating appellate expertise at the trial level offers our clients the best service, by ensuring that nuances of appellate practice are considered in building the record for appeal. Far from the ivory-tower approach for which appellate lawyers are sometimes criticized, our appellate attorneys work closely with our trial teams at every stage of a case.