United States: Unanimous Supreme Court Scolds Lower Court Over Appellate Deadline Rule

In a unanimous decision, the U.S. Supreme Court ruled today that a federal procedural rule that allows a district court to extend an appeal deadline by no more than 30 days is a non-jurisdictional, mandatory claims processing rule. While this is a generally inconsequential decision when it comes to workplace law, it is a decision about which every litigant and participant in the judicial system should be aware, as it could impact litigation options and strategy. While this decision might potentially lead to a slight uptick in extension requests from pro se plaintiffs and overall delays in commencing appeals, it may also have a marginal impact on appellate litigation (Hamer v. Neighborhood Housing Services of Chicago, et al).

Employment Lawsuit Leads To Appellate Confusion

Charmaine Hamer worked as an intake specialist for Neighborhood Housing Services of Chicago and Fannie Mae. Hamer ultimately resigned her employment, and later filed a lawsuit in the U.S. District Court for the Northern District of Illinois alleging age discrimination, sex discrimination, and retaliation. After rigorous litigation, Hamer's former employers ultimately won summary judgment on all claims and had the claims dismissed. What seemed like the end of the road turned out to be the first step in a long appellate journey.

The following procedural events occurred over the next several years:

  • On September 14, 2015, a final judgment was entered in favor of the employers. Pursuant to Federal Rule of Appellate Procedure (FRAP) 4(a)(1)(A), absent an extension, Hamer had until October 14, 2015 to file her notice of appeal.
  • On October 8, 2015, a week before the original appeal deadline, Hamer timely filed a motion requesting a 60-day extension of the appeal deadline. The lower court granted the 60-day extension, making the new appeal deadline December 14, 2015.
  • On December 11, 2015, three days prior to the new appeal deadline set by the lower court, she filed her appeal with the 7th Circuit Court of Appeals. 
  • The employers did not challenge the timeliness of the appeal. In fact, their docketing statement conceded that "Hamer filed a timely Notice of Appeal." After receiving briefs on both the procedural questions and the merits of the appeal, the 7th Circuit Court of Appeals dismissed the appeal on its own accord (a "sua sponte" action), holding the lower court lacked jurisdiction because the appeal was untimely.   
  • Hamer then appealed the dismissal to the United States Supreme Court, which accepted her case and heard arguments on October 10, 2017. Less than a month later, the SCOTUS issued its ruling.

Question Presented

The question before the Court was the proper characterization and application of FRAP 4(a)(5)(C), and whether that Rule is jurisdictional or whether it is subject to waiver, forfeiture, or equitable exceptions. At least three appellate courts (the 2nd, 4th, and 10th Circuits) had previously held that this rule was jurisdictional, which means it would serve as an absolute bar to proceeding on appeal. Meanwhile, two other appellate courts (the 9th and D.C Circuits) held that this rule was merely a non-jurisdictional, claims processing rule, and therefore subject to forfeiture, waiver and equitable exceptions.  

 While observers were hoping that the Court would decide whether a district court can only grant up to a 30-day extension of the deadline to file an appeal, or whether a district court has the power to grant a longer extension where good cause is shown, the Court did not go that far.

"Jurisdictional Rule" v. "Claims Processing Rule"

While the question of whether FRAP 4(a)(5)(C) is a "jurisdictional rule" or a "claims processing rule" might seem like a hyper-technical debate over semantics, this distinction has profound ramifications on litigators and lower courts. This nuanced legal debate arises from a quirk in legislative drafting.

The Rule itself (FRAP 4(a)(5)(C)) clearly states that an extension of the appeal deadline cannot exceed 30 days: "No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time..." However, the underlying enacting statute found at 28 U.S.C. § 2107(c) makes no mention of the 30-day cap. If the 30-day cap rule is found to be derived from the statute, then the rule is a "jurisdictional rule." If the rule is not derived from the statute, then the 30-day cap rule is just a "mandatory claims processing" rule.

A jurisdictional rule determines whether a lower court has the authority to hear the case and decide the issues. Similar to a statute of limitations (e.g., "you have six years to file suit for breach of contract"), a jurisdictional rule essentially is a rule that says you waited too long to move forward with your claim. And, like a statute of limitation, a court cannot modify that deadline no matter how meritorious the claim might be or what last-minute emergency might have arisen.

This is an important distinction because anyone can raise a lack of jurisdiction at any time during the litigation, and the court can even raise the jurisdictional issue on its own initiative. In this case, a sua sponte dismissal is the judicial equivalent of falling through a concealed trap door — like the court saying, "Surprise!! Game over, you lose, everyone go home!"

In contrast, a violation of a mandatory claims processing rule must be raised in a timely motion and is subject to forfeiture, waiver, and other doctrines of fairness. An example of this would be insufficient service of process (e.g., "you failed to serve a copy of the Complaint on the correct person within 90 days"). A claims processing rule such as this can be modified by a court order, and technical failures to comply with these procedures can be excused if the court believes it is warranted.

Furthermore, mere claims processing rules can be waived where it would be unfair to dismiss the case on such grounds at a given point in time. For example, it would be unfair for one to actively participate in litigation for two years, knowing the whole time that service was improper, and then seek to get the case dismissed on the eve of trial because the Complaint was technically served on her twin sister. 

In this case, the equitable arguments are readily apparent since Hamer filed her appeal before the deadline set by the lower court's order, and the employers never filed a motion for reconsideration or otherwise objected to the 60-day extension. 

Outcome: Hamer Should Have Her Day In Appellate Court

In today's unanimous ruling, the Court reiterated what it had previously said in the 2007 case of Bowles v. Russell, where it had held that "an appeal filing deadline prescribed by statute enacted by Congress 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."  

The Court chastised the lower courts stating "in conflating Rule 4(a)(5)(C) with § 2107(c), the Court of Appeals failed to grasp the distinction our decisions delineate between jurisdictional appeal filing deadlines and mandatory claim-processing rules, and therefore misapplied Bowles."

The SCOTUS did not give much weight to the employers' argument that Congress "absentmindedly" deleted the 30-day cap language from the statute, finding instead that the "legislature says . . . what it means and means . . . what it says." The Court said it would resist the urge to speculate whether Congress acted inadvertently when it passed that statute. Ultimately, the Court concluded that the statutory text was clear and did not contain the 30-day cap, making FRAP 4(a)(5)(C) a non-jurisdictional – but still mandatory claims processing – rule. 

What Does This Mean For Appellate Litigants?

It is important to note that the Court did not resolve whether the lower court was actually allowed to grant the 60-day extension on equitable grounds, it only stated that the employers forfeited or waived their right to bring the objection at some point. Thus, the Court left open the question of whether the employers' silence (failure to raise an objection to the lower court when the overly long extension was granted) was in itself the act of forfeiture.   

The Court overturned the sua sponte dismissal of the 7th Circuit on jurisdictional grounds and remanded the case to the appeals court to issue a determination on the merits of the appeal. 

This is not a case that should change the way employers do business. In fact, the only employers significantly impacted by this decision are the specific employers in this case, who have had to litigate the finality of this matter for more than two years, only to essentially have the appeal resurrected and sent back to the 7th Circuit Court of Appeals for a determination on the merits. 

However, this is a case that should attract the attention of those litigating civil appeals, relating to workplace law or not. We now know that the federal procedural rule that allows a district court to extend an appeal deadline by no more than 30 days is a non-jurisdictional, mandatory claims processing rule, and you should adjust your appellate practice accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.