Is a rule of appellate procedure limiting the length of an extension for filing a notice of appeal jurisdictional?  That was the question decided by the Supreme Court in Hamer v. Neighborhood Housing Services of Chicago, in No. 16-658, 2017 U.S.  LEXIS 6765 (U.S. Nov. 8, 2017).

Generally, a notice of appeal must be filed within 30 days.  Section 2107(c) of Title 28 of the U.S. Code extends the time for appeal upon a showing of excusable neglect or good cause.  The statute does not say how long an extension may run.  However, Federal Rule of Appellate Procedure 4(a)(5)(C) provides that no extension of time for filing a notice of appeal may exceed 30 days after the prescribed time for filing a notice of appeal or 14 days after the date of the order granting the extension motion, whichever is later.

Hamer sued Neighborhood Services of Chicago for employment discrimination.  The district court entered summary judgment against her on September 14, 2015.  She had 30 days, until October 14, to appeal.  Before her notice of appeal was due, her lawyer withdrew and asked the court for an extension of the appeal filing deadline for two months, until December 14, to give her time to hire a new lawyer.  The district court granted the extension and on December 11, Hamer filed her notice of appeal.

Hamer’s notice of appeal – filed more than 30 days after the expiration of the original time for filing the appeal – was permissible under Section 2107(c) but untimely under Rule 4(a)(5)(C).  The Seventh Circuit dismissed her appeal for lack of jurisdiction.

The Supreme Court reversed, holding that the Court of Appeals failed to appreciate the distinction between jurisdictional appeal filing deadlines and mandatory claims-processing rules.

An appeal filing deadline prescribed by statute will be regarded as “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal.  But a time limit prescribed only in a court-made rule is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee.  Only Congress may determine a lower federal court’s subject-matter jurisdiction.  Accordingly, a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.

When an appeal has not been prosecuted within the time limits set by Congress, it must be dismissed for want of jurisdiction.  The jurisdictional defect is not subject to waiver or forfeiture and may be raised at any time.  Courts are obliged to notice jurisdictional issues and raise them on their own initiative.  In contrast, mandatory claim-processing rules may be waived or forfeited.

Justice Ruth Bader Ginsburg, acting for a unanimous Court, announced a rule “both clear and easy to apply: 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; otherwise, the time specification fits within the claim-processing category.”

Because the Seventh Circuit did not reach subsidiary issues, the Court remanded for consideration of:

• whether NHSC forfeited any objection to the overlong extension by failing to object; or
• failing to file its own notice of appeal; and
• whether there were equitable exceptions to Rule 4(a)(5)(C).