Justices Grapple With Appeal Rules for Civil Litigants

WASHINGTON (CN) – A challenge poised to resolve how long parties have to file appeals in civil cases brought pointed questions Tuesday from Supreme Court Justice Ruth Bader Ginsburg.

The case erupted two years ago when a federal judge tossed age-discrimination claims Charmaine Hamer had brought against Neighborhood Housing Services of Chicago and Fannie Mae’s National Mortgage Help Center, where Hamer worked as an intake specialist.

Though the law gave Hamer 30 days to file an appeal of the decision, the District Court offered Hamer an extension when her attorney withdrew from the case over a strategic disagreement six days before deadline was set to expire on Oct. 14.

Hamer filed her appeal before the extended deadline, but the Seventh Circuit marked the appeal late after taking a closer look at Federal Rule of Appellate Procedure 4.

Unlike Section 2107 of U.S. Code Title 28, which does not include a time limit, Rule 4 stipulates that “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.”

With the Seventh Circuit finding that Rule 4 stripped the court of jurisdiction to hear the case, the Supreme Court intervened to determine whether Rule 4’s time limit is jurisdictional or a claim-processing rule that courts can waive.

Ginsburg warned Tuesday that if the rule cannot be waived or forfeited like other appellate procedures, it would give defendants great power to kill appeals before they even begin. 

“The defendant is well aware of that time extension and, if the defendant had read the rules, would recognize that they say 30 days, not 60 days,” Ginsburg said at oral arguments Tuesday. “But on your view, the defendant could deliberately say nothing and then, on appeal, when it’s too late for the district court to correct the error, say, sorry, mandatory, and under your rules, court of appeals, I don’t waive anything. It allows the defendant to create a trap.”

Jonathan Herstoff, an attorney for Hamer with the firm Haug Partners, said Rule 4 is not jurisdictional because it does not have the backing of a statute, and only Congress has the authority to determine jurisdiction for federal courts.

“No maximum extension of time is set in the statute or in any other statute,” Herstoff said. “And therefore, [rule 4] does not constitute a limitation on a court’s jurisdiction.” 

For Herstoff, the failure by NHS and Fannie Mae to raise the issue of the timeliness in the district court should prevent them from doing so at the appeals court.

Justice Samuel Alito questioned why a rule that is partly meant to give a court a clear timeline for the resolution of a case should rely on a lawyer preserving the issue before a lower court. 

“If the appellee is asleep and this rule was supposed at least in part to protect the jurisdiction of the court of appeals, why can’t the court of appeals put some teeth in this?”  Alito asked. “Not by treating it as strictly jurisdictional, but putting a thumb certainly on the scale in applying the doctrines that you’re relying on.”

Damien Stewart, a Fannie Mae attorney who argued for both the mortgage company and NHS on Tuesday, said Rule 4 imposed a jurisdictional requirement.

Even if it didn’t, Stewart said NHS and Fannie Mae did not waive their right to bring the timeliness issue because they raised the claim before the appeals court reached the merits of the case.

Stewart also argued the rule has the backing of a statute because Congress left the time limit in Rule 4 out of its changes to section 2107 by mistake. Before the 1991 changes to the law, the statute and the rule both included time limits.

“If Congress intended to change the jurisdictional nature of the rule, it would have said so,” Stewart said.

But Justice Elena Kagan had trouble with this argument, questioning why the choice by Congress to change a law is not enough to show lawmakers intended to fundamentally alter how it works. 

“I mean, what else do you expect Congress to do if it changes its mind?” Justice Elena Kagan asked.

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