Seventh Circuit Opinion Demonstrates the Importance of Engaging an Appellate Attorney When the Right to Appeal Is on the Line

by Wilson Elser
Contact

The recent opinion of the U.S. Court of Appeals for the Seventh Circuit in Banks v. Chicago Board of Education, 13-2018, N.D. Ill, E. Div. (April 24, 2014), illustrates the importance of engaging an appellate attorney to properly perfect post-trial motions that affect the right to appeal.

Background
The plaintiff, Patricia Banks, sued her former employer, the Chicago Board of Education, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and related violations of federal and state law. The district court granted summary judgment for the defendant on all claims. Twenty-nine days after the district court entered judgment, the plaintiff filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). The district court denied this motion six days later. The plaintiff then filed a notice of appeal challenging both the grant of summary judgment to the defendant and the denial of her post-judgment motion.

Analysis
The appellate court found that it did not have jurisdiction to review the summary judgment order because the plaintiff’s Rule 59(e) motion was untimely and therefore did not have the effect of tolling her time for filing a notice of appeal. Under Federal Rule of Appellate Procedure 4(a)(1)(A), a party in a civil action must file a notice of appeal within 30 days after entry of the judgment or order to be appealed. The filing of a timely Rule 59(e) motion, however, will toll the time for filing a notice of appeal.

A timely Rule 59(e) motion is one that is filed within 28 days after the entry of judgment. Here, the plaintiff filed her Rule 59(e) motion on the 29th day. The motion was thus untimely, which in turn rendered her notice of appeal challenging the summary judgment order untimely, such that the Seventh Circuit had no jurisdiction to review it. In reaching this conclusion, the Seventh Circuit cautioned that Rule 59(e)’s “time limit is unyielding” with respect to tolling the time for filing a notice of appeal and may not be extended by either the district court or the appellate court with its tolling effect intact.

The court also rejected the plaintiff’s argument that it should consider the notice of appeal from the summary judgment order timely because the district court accepted and ruled on the late-filed Rule 59(e) motion: “A district court’s acceptance of an untimely Rule 59(e) motion does not save the motion. … The fact that the district court may have mistakenly considered Banks’s arguments under Rule 59(e) does not compel or even permit us to review the merits of the underlying judgment.”

Practice Point
Because the Rule 59(e) motion was untimely, the court considered it instead as a Rule 60(b) motion for relief from a judgment or order. As such, the scope of the appellate court’s review was limited to the district court’s order denying the plaintiff’s post-judgment motion (which was affirmed) and the applicable standard of review was abuse of discretion as opposed to the de novo standard applied to the review of summary judgment orders.

This is significant. Because an abuse of discretion will be found only where no reasonable person could reach the same conclusion as the trial court, the abuse of discretion standard is always a high hurdle for an appellant to overcome. By contrast, the de novo standard of review allows the appellate court to review the case anew without being bound by the district court’s decision or reasoning; it is thus a much better standard of review for appellants. By filing the Rule 59(e) motion just one day late, the plaintiff unwittingly rendered the summary judgment order unreviewable and changed the standard of review in a manner unfavorable to her. The lesson of Banks: retaining an appellate practitioner to handle post-trial and appellate litigation is a necessity, particularly where one’s very right to appeal is on the line.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!