You might remember that a couple of weeks ago the Supreme Court issued an opinion explaining which time limits for an appeal were truly jurisdictional (any time limit created by a statute) and which were merely “mandatory claim-processing rules” (any time limit created by a rule). The case was Hamer v. Neighborhood Housing Services of Chicago, and I wrote about it (and Justice Ginsburg’s primer on waiver versus forfeiture) here [LinkedIn mirror post]. The Sixth Circuit just issued an opinion addressing an appellate timing rule and you can tell it was written with a copy of Hamer close by.

In Martin v. Sullivan the Sixth Circuit held that the rules say if you want an extension of time to file a notice of appeal, you have to ask. Martin (a federal inmate) sued a state judge, the state prosecutor, and his (former) criminal appellate counsel, alleging they plotted against him during plea bargaining. The Eastern District of Michigan held the claim was an impermissible federal-court civil challenge to a state criminal conviction and dismissed. The Sixth Circuit affirmed.

After the district court dismissed his claim, Martin filed a notice of appeal—but only after the deadline had passed, and without filing a motion for an extension. The Sixth Circuit issued a show cause order asking why it should accept the late appeal. Martin explained that his notice of appeal was late because he hadn’t received timely notice of the judgment. But—the Sixth Circuit explained—there is a timing rule that covers exactly this problem, and it is a problem for the district court to solve. Federal Rule of Appellate Procedure 4(a)(6) authorizes the district court (even though it’s an appellate court rule) to reopen the time to file an appeal for 14 days if the would-be appellant wasn’t properly notified of the judgment they are trying to appeal. That rule is based on a statute that authorizes the district court to reopen the time for appeal “upon motion filed within 180 days after entry of the judgment or order . . . .”

The Sixth Circuit focused on one key word in both the statute and the rule: “motion.” A near-twin rule for criminal appeals states that a district court can extend the appeal deadline in a criminal case “with or without motion and notice . . . .” But the civil appeals rule says “motion,” and Martin had never filed a motion—he just filed the notice of appeal. Martin hadn’t asked for an extension from the district court, and he couldn’t get an extension from the circuit court, so his appeal was too late. (Intriguingly for cert petition watchers, the Sixth Circuit pointed to opinions showing that three other circuits would have taken the appeal.)

Both the rule and the statute require a motion, and there was no real debate that the procedure was jurisdictional. So how do we know the Sixth Circuit was reading Hamer even though they didn’t cite the decision? Every last cite to the rule was dutifully paired with an “accord” cite to the United States Code. See the citations here.

There’s a case just out of the First Circuit that shows how procedural posture can change the standard of review on appeal. Mrs. M sued the Falmouth school district for violations of the Individuals with Disabilities Education Act. The district court granted summary judgment to the school district and the First Circuit affirmed.

Then Mrs. M did something that seems fairly reasonable: she asked for permission to file an amended complaint that addressed the flaws pinpointed by the First Circuit’s decision. This is a common tactic after losing a motion to dismiss—but Mrs. M wasn’t trying to fix problems with how she stated her claim, she was trying to fix problems with the substance of her claim. That is less common. The district court denied Mrs. M’s motion and she appealed.

What’s interesting is that the district court denied the motion in a way that changed the standard of review on appeal. Usually a court of appeals reviews a decision allowing or refusing an amended complaint for abuse of discretion. Abuse of discretion is the most forgiving standard of review. But the district court based its ruling on the law of the case, a legal rule that says an issue should only be decided once in a lawsuit. And a court of appeals reviews a decision based on law of the case without deference, the least forgiving standard.

The standard of review can make a big difference on appeal. Colter Paulson, a Cincinnati-based member of Squire Patton Boggs’ appellate group, writes on the Sixth Circuit Appellate Blog that “[a]ppellate lawyers think about arguments in terms of the applicable standard of review . . . .” And in the Sixth Circuit, “the standard of review matters”: The Sixth Circuit is likely to affirm an opinion reviewed for abuse of discretion but it reverses opinions reviewed without deference a striking 20% more often than any other standard. That short paragraph at the start of your argument is one of the most valuable parts of your appellate brief second only to the fact statement.

In Mrs. M’s case, the change in the standard didn’t help her after all: The First Circuit held that the district court was right under either standard. But it’s not hard to picture a scenario where this procedural posture changes the outcome of the case. And you’ve probably read one—any case where the appellate opinion says something to the effect that ‘we might not have done this, and we understand why the appellant is unhappy, but it’s not an abuse of discretion. Affirmed.’

The Supreme Court of the United States has straightened out some lingering confusion over jurisdictional time limits on appeal. These are rules that appellate lawyers work with day in and day out. They know them well. And well they should: A jurisdictional time limit cannot be waived or forfeited, but whether a party met the deadline can be asked at any time by the appellate court–and appellate courts are supposed to ask even if no one else does. But the same lawyers who know these rules cold also know that time limits aren’t always so clear-cut. That’s because not all time limits are jurisdictional–and it’s not always clear which or why.

The results can be alarming to someone who had a live appeal until the circuit court examined the calendar. Hamer sued Neighborhood Housing Services of Chicago for employment discrimination under Title VII. The district court granted Neighborhood Housing’s motion for summary judgment. Hamer wanted to appeal but her lawyers didn’t, so Hamer filed a motion for a two-month extension of the appeal deadline while Hamer hired new counsel. Neighborhood Housing did not oppose the motion, and the district court granted it. After Hamer got new lawyers, she timely filed her notice of appeal. But then the Seventh Circuit, acting on its own, asked for briefing on whether a two-month extension was allowed under the Federal Rules of Appellate procedure—FRAP 4(a)(5)(C), in particular, which limits any extension for notices of appeal to 30 days. Neighborhood Housing then argued (for the first time) that Hamer could not get a two-month extension of her time to appeal. The Seventh Circuit agreed, noting that the time to appeal was “mandatory and jurisdictional,” and dismissed the appeal for lack of appellate jurisdiction. The Supreme Court granted certiorari and reversed.

Justice Ginsburg wrote the opinion for a unanimous court holding that the FRAP 4(a)(5)(C) deadline was not, in fact, “mandatory and jurisdictional.” That phrase was pulled from a Supreme Court case written back in a time when (per J. Ginsburg) the Court was “‘less than meticulous’ in our use of the term ‘jurisdictional.’” But a meticulous court knows that a time limit to file an appeal is only jurisdictional if it has a statutory basis. A time limit to file an appeal that is based on court rule is just a “mandatory claim-processing rule[]” and “[m]andatory claim-processing rules are less stern. If properly invoked, mandatory claim-processing rules must be enforced, but they may be waived or forfeited.” Because the time limit relied on by the Seventh Circuit was rule-based and not statute-based it was not jurisdictional (just mandatory), and could be waived or forfeited.

Sidenote: If you follow #AppellateTwitter at all, you’ll know this is the case where the Court observed that forfeiture and waiver are two different things. You forfeit a right when you fail to assert it. You waive a right when you decline to assert it.

Left open is whether Hamer gets her appeal after all: J. Ginsburg’s opinion lists the issues the Court did not decide, such as whether Neighborhood Housing’s failure to oppose the extension forfeited their right to object to the appeal, and whether the Seventh Circuit could carve out an equitable exception to the 30-day time limit of the rule. It’s a short, clear, and clarifying read, found here.