Appellate Decisions

New Decisions on Jurisdictional & Claim-Processing Appellate Rules

Two recent decisions have addressed the jurisdictional nature of appellate rules, and one (on administrative exhaustion) is probably wrong.

June 14, 2019

By Bryan Lammon

The federal courts’ ongoing project of delineating which procedural rules are jurisdictional and which aren’t (and are instead claim-processing rules) continues.

The Seventh Circuit held this week that 28 U.S.C. § 2107(c)’s excusable neglect/good cause requirement for an extension of the appeal-filing deadline is jurisdictional. And the Tenth Circuit applied an earlier decision holding that administrative exhaustion of arguments under the Black Lung Benefits Act is jurisdictional, though the panel appeared to doubt that earlier decision.

Nestorovic & § 2107(c)’s excusable neglect/good cause requirement

In Nestorovic v. Metropolitan Water Reclamation District, the Seventh Circuit held that 28 U.S.C. § 2107(c)’s requirement of showing excusable neglect or good cause to obtain an extension of the appeal-filing deadline is jurisdictional.

After missing the normal deadline, the plaintiff in Nestorovic moved to extend the time for filing her notice of appeal. A statute—28 U.S.C. § 2107(c)—permits extensions of the appeal-filing deadline in cases of (among other things) excusable neglect or good cause. Federal Rule of Appellate Procedure Rule 4(a)(5) implements this statutory provision, adding a limit on the length of the extension. But the Nestorovic plaintiff’s motion did not explain in any depth why hers was a case of excusable neglect or good cause. And (as we’ll see) the Seventh Circuit thought that it was not. The district court nevertheless granted the motion, concluding (also without in-depth explanation) that an extension was warranted “in these circumstances.”

On appeal, the defendant did not initially challenge appellate jurisdiction. (It later did so at the court of appeals’s prodding.) The Seventh Circuit accordingly had to address whether § 2107(c)’s requirement of showing excusable neglect or good cause is jurisdictional. If it isn’t, the defendant’s failure to challenge jurisdiction would likely forfeit the issue. But if it is, then the issue cannot be forfeited, and the court would lack jurisdiction.

The Supreme Court has already addressed part of the rule governing extensions for excusable neglect or good cause. In Hamer v. Neighborhood Housing Services of Chicago, the Court held that the time limit on these extensions is not jurisdictional. The statute does not place a limit on the length of extensions; the limit comes only from Rule 4(a)(5). Hamer accordingly held that the time limit is not jurisdictional.

The requirement of showing excusable neglect or good cause, in contrast, comes from the statute. The Nestorovic court accordingly held that the requirement was a jurisdictional one. It bolstered this holding with the Supreme Court’s recent decision in Fort Bend County v. Davis, which held that Title VII’s charge-filing requirement is a non-jurisdictional, claim-processing rule. The Fort Bend County Court had reiterated that statutory requirements speaking to a court’s authority to hear a case are jurisdictional. And § 2107(c) terms “embody a statutory prescription delineating the adjudicatory authority of courts.”

So the court had to enforce § 2107(c)’s excusable neglect/good cause requirement—it could not be waived or forfeited (even though the defendant had initially failed to raise the issue in the appeal), and the court had to address it on its own. And rather than remand for the district court to explain itself, the Nestorovic court went on to decide for itself that the plaintiff had not made the requisite showing of excusable neglect or good cause. The court accordingly dismissed the appeal as untimely.

So for those keeping score, part of Rule 4(a)(5) is jurisdictional, and part of it isn’t.

Big Horn Coal and Black Lung Benefits exhaustion

In Big Horn Coal Co. v. Sadler, the Tenth Circuit held that failure to exhaust a Black Lung Benefits Act argument before the Department of Labor Benefits Review Board deprived the court of jurisdiction to address it.

The Act requires that coal-mine operators pay medical and monetary benefits to employees who suffer from black lung. It also requires that claims be brought within three years of a miner receiving a diagnosis for black lung. The claimant in Big Horn Coal filed his claim five years after learning of his diagnosis. But an administrative law judge held that extraordinary circumstances warranted tolling the statute of limitations. The coal-mine operator appealed to the Benefits Review Board, making two arguments about why equitable tolling was improper. (The details of those arguments are irrelevant to the present discussion.) When the Board affirmed, the coal-mine operator appealed to the Tenth Circuit.

Before the Tenth Circuit, the operator added a new argument (again, the details of which are irrelevant) as to why tolling was improper. But the court held that it lacked jurisdiction to address this new argument. Twenty-five years ago, the Tenth Circuit held in McConnell v. Director, OWCP that failure to exhaust an argument before the Board deprived the court of jurisdiction. That is, issue exhaustion in this context is a jurisdictional requirement. So although no party challenged appellate jurisdiction, the Tenth Circuit held that it had to address the matter on its own initiative.

But the panel in Big Horn Coal suggested that McConnell was incorrect, saying that “[t]here may be some question about the long-term validity of McConnell describing the exhaustion requirement as jurisdictional in light of subsequent Supreme Court authority advising against the ‘profligate use’ of that label.” And in a footnote, the court noted that 33 U.S.C. § 921, “[t]he statute governing [its] jurisdiction over [appeals under the Black Lung Benefits Act,] does not contain any language to suggest that issue-exhaustion is a jurisdictional prerequisite to [its] hearing an appeal.”

Given the Big Horn Coal panel’s questioning of McConnell, it won’t be surprising if the Tenth Circuit eventually takes this issue en banc.

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