Everything Was Late, but Nothing Was Jurisdictional

In Vergara v. City of Chicago, the Seventh Circuit untangled a procedural mess involving multiple missed deadlines. The notice of appeal was late (though understandably so), as was the objection to the late notice. But none of these missed deadlines went to the court’s jurisdiction. They were claims-processing rules—one mandatory but not properly invoked, the other not mandatory and forfeited.

All of this could have been avoided had the district court not waited almost two years after dismissing the action to issue its opinion. Like last year’s Walker v. Weatherspoon, Vergara illustrates the potential for mistakes when district courts decide a case but don’t issue an opinion until after the time for appealing has run. It also illustrates the need to better define the point in litigation when parties have a right—and a limited window of time—to take the traditional, end-of-proceedings appeal.

The Vergara litigation

In 2011, the Vergara plaintiffs were stopped by Chicago police officers and taken to Homan Square—a notorious, off-the-books interrogation site in Chicago that was rife with police misconduct. The plaintiffs were interrogated, abused, and threatened:

There the officers interrogated the plaintiffs for eight or nine hours, omitting Miranda warnings and ignoring their repeated requests for an attorney. The plaintiffs were denied food, water, and access to a bathroom, and the officers tried to coerce false confessions from them. The officers also threatened to file false charges against the plaintiffs if they told anyone about their mistreatment at Homan Square.

The plaintiffs did not seek any redress for their treatment for several years. But they came forward after Homan Square was exposed by The Guardian. The plaintiffs then sued the three officers who seized them as well as the City of Chicago for variety of constitutional violations.

In March 2016, the district court announced that it was dismissing the suit as untimely. The announcement came in only a minute order; the district court said that an opinion would follow. But that opinion did not come until almost two years later, in January 2018. And the plaintiffs did not file their notice of appeal until after the district court issued its opinion.

The appeal

The appeal presented a tangle of procedural issues.

The untimely notice of appeal

The Seventh Circuit first concluded the notice of appeal was untimely.

The minute order—not the later opinion—resolved the action and constituted the district court’s judgment. Normally that judgment would have been entered in a separate document, and the time for appealing would then have started to run.

But there was no separate document in Vergara. So under Appellate Rule 4(a)(7)(A), the judgment was deemed entered 150 days from entry of the order on the docket. The plaintiffs then had 30 days from that date to file their notice of appeal. So altogether the plaintiffs had 6 months from the docket entry to file their notice of appeal.

They didn’t file within this time. They instead waited for the opinion and, after that opinion was issued, filed their notice. That was about 22 months after the docket entry.

The consequences of the late notice

So the appeal was untimely. The court next had to determine the consequences of this late filing.

The 30-day deadline for appeals in civil cases—which is found in both Rule 4(a) and 28 U.S.C. § 2107(a)—is jurisdictional. So an appeal normally must be filed within 30 days of the judgment’s entry.

But other Rules of Appellate Procedure are not jurisdictional. And the Seventh Circuit has held that Rule 4(a)(7)(A)’s provisions on deeming a judgment entered are not jurisdictional. Rule 4(a)(7)(A) is instead a mandatory claims-processing rule. If the rule is properly invoked, the court must apply it.

The untimely objection

The question, then, was whether the defendants had properly invoked Rule 4(a)(7)(A). That brings us to another late filing.

The plaintiffs filed a docketing statement with the Seventh Circuit, which stated that the district court entered judgment in January 2018 (a date that would have made their appeal timely). As just explained, that docketing statement was wrong; judgment was entered 150 days after the minute order.

Under Seventh Circuit Rule 3(c)(1), the defendants had 14 days to file a corrected docketing statement. But the defendants didn’t comply with that 14-day deadline. They instead waited about 6 months, until the appeal was in the midst of briefing.

The consequences of the late objection

Like Rule 4(a)(7)(A), Circuit Rule 3(c)(1) is not jurisdictional. It, too, is a claims-processing rule (not even a mandatory one at that). So objections to it can be waived or forfeited.

The defendants in Vergara had forfeited any objection to the timeliness of the notice of appeal by failing to timely correct the docketing statement:

Disrupting an otherwise orderly appeal with an untimely objection in the middle of briefing is a proper ground to enforce forfeiture. By not following our rules, the defendants’ objection “just complicated the appeal.”

The merits

This let the court finally get to the merits, on which the Seventh Circuit affirmed the dismissal. The plaintiffs’ suit was filed years after their abuse and thus untimely. And the officers’ threats did not equitably estop enforcement the statute of limitations.

The lesson

The Seventh Circuit succinctly summarized the problem of postponed opinions in last summer’s Walker:

A district judge who announces a final decision yet postpones issuing the opinion sets a trap for the losing side, because a plan to provide an explanation does not delay the date of decision. Most litigants who represent themselves, and many lawyers, are unaware of Rule 4(a)(7)(A)(ii) and think that they can wait for the entry of judgment. Litigants can protect themselves—for example, the loser may file a notice of appeal and ask the court of appeals to defer briefing until the district court has released its opinion. But judges should not expose litigants to the risk that they will miss the need for self-protective steps. Except when there is a need for speedy announcement of the outcome, the opinion should accompany the decision. This is not a suit in which rapid decision was essential, so a deferred opinion was unjustified. And when there is a justification for announcing a decision in advance of an opinion, issuing the opinion should be the district judge’s top priority. Deferring the opinion until after the time allowed by Rule 4(a)(7)(A)(ii) is never appropriate, as it can spell disaster for a litigant not versed in the appellate rules.

Vergara’s lesson for appellate procedure is the same: district court judges should avoid postponing opinions, and litigants should be vigilant about appellate deadlines anytime a court does so.

Thinking more broadly, Vergara and Walker illustrate one problematic area of appellate jurisdiction that does not receive sufficient attention: identifying the end of district court proceedings, when parties have a right—and a limited window of time—to take the traditional final-judgment appeal. It’s worth thinking about how we might better define that point to avoid situations like Vergara.

My thanks to Howard Bashman to sending this decision my way.

Vergara v. City of Chicago, 2019 WL 4744701 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.