June 2, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:12-cv-10150 -
Ruben Castillo, Chief Judge.
Posner and Sykes, Circuit Judges and Yandle, District Judge.
YANDLE, DISTRICT JUDGE.
Hamer, a former Intake Specialist for the Housing Services of
Chicago ("NHS") and Fannie Mae's Mortgage Help
Center ("Fannie Mae") (together
"Appellees"), filed suit against her former
employers, alleging violations of the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et. seq., and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., as amended. The district court
granted summary judgment in favor of NHS and Fannie Mae on
September 14, 2015. As such, pursuant to Fed. R. App. R
4(a)(1)(A) and 28 U.S.C. § 2107(a), the original
deadline for Hamer to file her Notice of Appeal was October
October 8, 2015, Hamer's counsel filed a "Motion to
Withdraw and to Extend Deadline for Filing Notice of
Appeal" in which she requested an extension to December
14, 2015 for Hamer to file her Notice of Appeal. The district
court granted the motion and extended the deadline to
December 14, 2015.
filed her Notice of Appeal with this Court on December 11,
2015; within the timeframe permitted by the district
court's Order, but exceeding the extension allowable
under Fed. R. App. P. 4(a)(5)(C) which provides: "No
extension under this Rule 4(a)(5) may exceed 30 days after
the prescribed time or 14 days after the date when the order
granting the motion is entered, whichever is later."
December 31, 2015, we, sua sponte, entered an Order
instructing the Appellees to file a brief addressing the
timeliness of this appeal. They did so, arguing that
Hamer's Notice of Appeal is untimely under Rule
4(a)(5)(C) and, therefore, that this Court lacks jurisdiction
over her appeal.
asserts that the district court extended the time to file her
Notice of Appeal pursuant 28 U.S.C. § 2107(c), which
states in relevant part: "[T]he district court may, upon
motion filed not later than 30 days after the expiration of
the time otherwise set for bringing appeal, extend the time
for appeal upon a showing of excusable neglect or good
cause." She contends that Rule 4(a)(5)(C) does not apply
since the district court did not consider it when granting
the extension. Hamer further argues that the Appellees waived
their timeliness challenge by not initially raising it.
Supreme Court has consistently held that the statutory
requirement for filing a timely notice of appeal is
"mandatory and jurisdictional." Bowles v.
Russell, 551 U.S. 205, 207, 209, 127 S.Ct. 2360, 2362,
168 L.Ed.2d 96 (2007). In Bowles, the Court
explained the relationship between the statutory filing
period set forth in § 2107(a) and the district
court's authority to extend that period under §
2107(c) and Rule 4:
According to 28 U.S.C. § 2107(a), parties must file
notices of appeal within 30 days of the entry of the judgment
being appealed. District courts have limited authority to
grant an extension of the 30-day time period...Rule 4 of the
Federal Rules of Appellate Procedure carries § 2107 into
practice. In accord with § 2107(c), Rule 4(a)(6)
describes the district court's authority to reopen and
extend the time for filing a notice of appeal after the lapse
of the usual 30 days... Id. at 208. 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, '(emphasis added). As we have long
held, when an 'appeal has not been prosecuted in the
manner directed, within the time limited by the acts of
Congress, it must be dismissed for want of jurisdiction.'
Id. at 213. (internal citation omitted).
Rule 4(a)(6), Rule 4(a)(5)(C) is the vehicle by which §
2107(c) is employed and it limits a district court's
authority to extend the notice of appeal filing deadline to
no more than an additional 30 days. Thus, the district court
was in error when it granted Ms. Hamer an extension that
exceeded the Rule 4(a)(5)(C) time period by almost 30 days.
we recognize that Ms. Hamer relied upon the district
court's erroneous Order and was misled into believing
that she had until December 14, 2015 to file her Notice of
Appeal, this Court simply has no authority to excuse the late
filing or to create an equitable exception to jurisdictional
requirements. See Bowles at 214. Therefore,
Hamer's Notice is untimely.
Hamer's argument that the Appellees waived the issue of
the timeliness of her appeal also fails. When a filing error
is one of "jurisdictional magnitude", forfeiture or
waiver cannot excuse the lack of compliance with the
statute's time limitation." See Bowles at
213. Had the Appellees never challenged the timeliness of
Hamer's Notice, they could not waive what this Court is
bound by statute to uphold. ...