Jurisdictional Deadlines & “Jurisdictional Crow”

A few weeks ago, in Edwards v. 4JLJ, L.L.C., the Fifth Circuit held that an appellee could forfeit an objection to the timeliness of a civil appeal. That struck me as odd. Appeal deadlines that come from statutes are jurisdictional. The 30-day deadline for civil appeals comes from a statute: 28 U.S.C. § 2107(a). (Federal Rule of Appellate Procedure 4(a)(1)(A) repeats that deadline.) And parties cannot waive or forfeit jurisdictional deadlines.

So how did the Fifth Circuit hold that the appellee in Edwards forfeited any objection to a late notice? I asked this question a few weeks ago, and I’ve kept coming back to it since.

Now we have an answer. On Monday, the Fifth Circuit withdrew its earlier opinion and replaced it with one dismissing the appeal for lack of jurisdiction. It appears that everyone had overlooked § 2107(a). So although the appellee in Edwards had not adequately raised the timeliness issue, the deadline was jurisdictional, and the court still had to enforce it. Indeed, the court had an independent duty to assure itself of its jurisdiction and thus had to—in its own words—“eat a bit of jurisdictional crow” for overlooking § 2107(a).

The Late Notice in Edwards

The lateness of the notice of appeal in Edwards is not entirely straightforward. And like all cases involving a potentially late notice, the time line is crucial.

Edwards involved claims for unpaid overtime under the Fair Labor Standards Act. After a jury returned a verdict for the employer, the employees moved for judgment as a matter of law and, alternatively, a new trial. A few weeks later, the district court entered a final judgment for the defendant. In doing so the district court did not mention the employees’ post-trial motion. About two weeks after that, the employees filed a second, substantively identical motion for judgment as a matter of law/a new trial. The district court denied this second motion about 40 days later. Three weeks after that, the employees filed their notice of appeal.

All told, over 75 days passed between the final judgment and the employees’ notice of appeal. That was a problem. Appellants in civil cases normally must file their notice of appeal within 30 days of the judgment.

The Fifth Circuit held that neither of the plaintiffs’ post-verdict motions altered the deadline. To be sure, under Rule 4(a)(4)(A), post-verdict motions can delay the start of the time for filing an appeal. But the motions in Edwards didn’t do so. The first came before the district court entered its final judgment. The Fifth Circuit explained that entry of the final judgment implicitly denied that motion, so that motion could not alter the appeal deadline. As for the second motion, it was substantively identical to the first. For a second post-trial motion to extend the appeal deadline, it must present “at least one completely different ground for relief from the judgment.” So the second motion didn’t delay the appeal clock either.

The employees in Edwards thus had the normal 30 days to file their notice of appeal. So, as the Fifth Circuit recognized in its initial decision, the employees’ appeal 75 days after the judgment “was late. Very late.”

Forfeiture & the Initial Opinion

The Fifth Circuit nevertheless held earlier this month that it had jurisdiction over the appeal. In its initial briefing, the employer did not challenge the timeliness of the appeal. The Fifth Circuit concluded that the employer’s failure to do so forfeited the matter. The issue could be forfeited, the court explained, because the 30-day deadline was a non-jurisdictional claims-processing rule. Quoting Hamer v. Neighborhood Housing Services of Chicago, the court noted that “a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.” Other time limits are merely claims-processing rules that can be waived or forfeited.

The 30-day deadline for civil appeals can be found in Federal Rule of Appellate Procedure 4(a). So that deadline, the Fifth Circuit concluded, was a forfeitable claims-processing rule:

The Federal Rules of Appellate Procedure were promulgated by the Supreme Court, not by Congress. So the Employees’ failure to file a timely notice of appeal does not affect our appellate jurisdiction.

Since the employer “did not properly raise the timeliness argument in its opening brief, the argument [was] forfeited.” The Fifth Circuit accordingly held that it had jurisdiction over the appeal.

The Statutory Basis for the Standard Appeal Deadline

The Edwards decision struck me as odd. The Supreme Court has drawn a line between jurisdictional and non-jurisdictional appeal deadlines: those found in statutes are jurisdictional, while those found only in rules of procedure are not. So, for example, in Bowles v. Russell, the Court held that the 14-day limit on reopening the time to file a notice of appeal is jurisdictional. Although found in Rule 4(a)(6), that 14-day limit comes from 28 U.S.C. § 2107(c). In contrast, Rule 4(a)(5)(C)’s 30-day limit for extending the time to file an appeal is not jurisdictional. That deadline comes only from the rules. So the Court held in Hamer that the deadline was a non-jurisdictional claims-processing rule.

Edwards involved the standard 30-day deadline for civil appeals. You can find that deadline in Rule 4(a)(1)(A). But it comes from a statute, 28 U.S.C. § 2107(a):

Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.

The 30-day deadline thus does not come solely from a rule of procedure. It should be a jurisdictional rule. Indeed, Bowles appeared to take the jurisdictional nature of § 2107(a) as given in explaining why § 2107(c)’s time limit was jurisdictional:

Like the initial 30-day period for filing a notice of appeal, the limit on how long a district court may reopen that period is set forth in a statute, 28 U.S.C. § 2107(c). Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), that limitation is more than a simple “claim-processing rule.”

So I didn’t understand Edwards when it was decided. The employees’ post-trial motions did not extend the time for appealing. The normal 30-day window for civil appeals therefore applied, and the employees filed well after that deadline had passed. Because that deadline comes from a statute, I would have thought that the deadline was jurisdictional and thus could not be forfeited. But the Fifth Circuit held otherwise.

Panel Rehearing in Edwards

The employer in Edwards moved for rehearing. On Monday, the Fifth Circuit withdrew its prior opinion and dismissed the employees’ appeal for lack of jurisdiction. This time, the court noted that the 30-day appeal deadline is statutory and thus jurisdictional:

As [the employer] points out in its Petition for Rehearing, the 30-day deadline in Fed. R. App. P. 4(a)(1) has a statutory anchor, 28 U.S.C. § 2107(a), thus making it jurisdictional.

Because neither post-verdict motion extended the time for appealing, the notice of appeal was late. And that lateness could not be excused.

In a footnote, the Fifth Circuit noted that the employer in Edwards had not adequately addressed the jurisdictional issue in its initial briefing or at oral argument. But because the issue was jurisdictional, that failure was irrelevant:

The fact that this argument was missing from [the employer]’s original briefing makes it no less correct. The 30-day deadline is no mere processing rule set by the Supreme Court in Rule 4; it is a jurisdictional rule set by Congress in § 2107. And since ensuring our jurisdiction is ultimately our responsibility, we must eat a bit of jurisdictional crow.

The court went on to quote Justice Frankfurter’s apt observation that “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.”

Edwards I: Edwards v. 4JLJ, L.L.C., 2020 WL 5229686 (5th Cir. Sep. 2, 2020), available at Google Scholar and Westlaw.

Edwards II: Edwards v. 4JLJ, L.L.C., 2020 WL 5628689 (5th Cir. Sep. 21, 2020), available at the Fifth Circuit and Westlaw.