Legal Case Summary

We'll hear argument this morning in case 16658 hammer versus neighborhood housing services of Chicago. Mr. Hurstoff? Mr. Chief Justice and may it please the court. One of the fundamental tenets of our constitutional structure is that only Congress can set the jurisdiction of the lower courts. Based on that fundamental principle, Federal Rule of Appellate Procedure 4A5C is non-Jurisdictional. The plain language of 28 USC Section 2107C is unambiguous. The district court can extend the time to appeal as long as a motion is timely filed and there's been a show of excusable neglect or good cause. No maximum extension of time is set in the statute or in any other statute and therefore Rule 4A5C does not constitute a limitation on a court's jurisdiction. Because of that, Rule 4A5C is subject to forfeiture, waiver and equitable considerations. And here there have been several acts of forfeiture and waiver. The respondents forfeited their right to rely on Rule 4A5C by a lot of- Should we reach that question, Council? So, I mean, this seven-circuit typed this limitation as jurisdictional, so they never went on to consider any question of forfeiture or waiver. So, I do suggest that we should decide those questions in the first instance. I submit that the record is sufficiently clear that the court can reach that issue here. Certainly, the court has discretion just to have it considered on remand, but we do think that the forfeiture and waivers on are clear here. The issues of equitable considerations, special circumstances that you talk about. Are there limits to those? I mean, let's say the issue comes up three years later. Can the district court at that point consider to extend the time to appeal? Well, certainly the equities would have to be weighed. Certainly the longer the extension is perhaps the less reasonable it is for an appellant to rely on the district court's order. But assuming that an order is relied on in good faith by the appellant, there's been no objection from the other side. There's been no showing of bad faith

. We think that the equities should be considered. And here it's undisputed that Miss Hamer was misled by the district court's order. There's absolutely no showing of bad faith here. The seventh circuit itself, I recognize that Miss Hamer was misled. And under those circumstances, we think that equitable considerations should require that the appeal be decided on the merits. But who misled her? Was it the court or was it her own attorney? Was this malpractice on the attorney's part for asking for an extension that exceeded the Federal rules, assuming it's non-Jewelstiction that the statute is that you're right that this is the non-Jewelstiction barrier, it would still be a statutory barrier. A Federal rules barrier. Yes, and we then, we think that Miss Hamer was misled by the district court's order. It's certainly true that she may have also been misled by the attorney's motion for the extension of time. But both of those factored in here and the equities should be considered. That was an attorney who simultaneously was asking to be relieved from representing her, right? That's correct, Justice Ginsburg, yes. And this case is directly analogous to Harris truck lines. In Harris truck lines, the attorney asks for an extension of time that was prohibited both by rule and by statute. And then yet the court held that the reliance on the extension of time required that the equities be considered and required that the appeal be decided on the merits. And we submit here the same course should be followed. As a matter of custom and usage in the district court, could you just tell me, suppose the verdict is returned or the judge indicates what the ruling will be, can both sides and do both sides sometimes say, please don't enter the judgment, your honor, so that we can talk settlement. Does that happen? So I know to the parties ask for the district. Yes, both parties tell in order to avoid these problems say, please don't enter judgment. And that certainly can happen in this particular. Does it happen? I was curious enough

. I've certainly seen some instances where a court comes out with a decision and then asks the parties to submit a proposed form of judgment so that that could certainly happen. Here the final judgment was entered alongside. My question was a little different, could they say, your honor, we're in settlement negotiations, could you please withhold entry of judgment? I'm not sure that I've seen that specific scenario, especially in the summary judgment context where the motion was pending. What I have seen is where summary judgment motions are pending and the parties ask the court not to issue a decision at all. I'm not sure I've seen a situation where a decision is out and the parties have asked the court to approve. Could the parties in the district court agree to withhold entry of judgment for years? And therefore, prejudice, the court of appeals, when ultimately it has a case that's old? For years now, because on Rule 58 of the Rules of Civil Procedure says that the judgment is considered to be entered. Is it 180 days or something like that? Yes, Justice Kennedy. So, but on the outside of that, I don't see any barrier to the parties asking the court to do that. Although I have one brief, and then we just brief in this case, telling us that we were wrong in drawing the distinction between what's in a statute, jurisdiction of what's in a rule, non-jurisictional, that instead anything that shifts a case from one court to the other, as notice of appeal, does, that should be considered jurisdictional. This is Professor Dodson's brief. Yes, and I respectfully disagree with that for a couple of reasons. That formulation of jurisdiction is inconsistent with this Court's case law and also with the rules of civil procedure. For instance, under Professor Dodson's formulation of jurisdiction, the time to appeal from the VA to the Court of Appeals for Veterans claims would be jurisdictional because it involves the transfer of the Judicatory Authority, yet the Court unanimously held to that time period is non-jurisictional. Similarly, the Federal Rules of Civil Procedure, such as Rules 54B and 23F, would be jurisdictional under Professor Dodson's formulation, but we know from Rule 82 that the rules of civil procedure are non-jurisictional, so therefore Professor Dodson's formulation of jurisdiction is incorrect. Do you think a rule can ever be jurisdictional without being codified in a statute? A rule that is not in a statute, no, I think that they cannot. If that's a flat rule, there are no exceptions to it. What if the rule, for example, interpreted statutory language? The rule interpreted statutory language, then perhaps under that interpretation of the statute, the statute could be jurisdictional, but the rule on its own could never be jurisdictional. And why is that? It's an old stems from a long line of the courts cases such as Conjric, and it also stems from Article 3 of the Constitution, which says that it's for Congress to establish the lower courts. So.

.. Well, we have drawn the line. I think it was in Justice Thomas's decision between statute and rule pretty clearly. Yes, Justice Ginsburg, both versus Russell, and establishes that, and Conjric versus Ryan establishes it, and cases as far back as the 1940s and perhaps even earlier have also said that court promulgated rules cannot be jurisdictional. So we think that the same course should be followed here. The rule by its terms, I suppose, it says you've got to file the motion no later than 30 days after the time prescribed under rule 4A, right? That's right, Mr. Chair. But then it's quite clear that that's not jurisdictional, right? The rule 4A5C is not jurisdictional, yes, Your Honor. No, I'm talking about the time to file the motion for an extension. Oh, I'm sorry, the time to file, yes, that underboils that probably would be jurisdictional because it's right in the statute as well. So the first sentence of Section 2107C sets the time to file the motion. So I think underboils that would likely be jurisdictional. The motion for an extension. The time to file the motion, yes, that would be jurisdictional, whereas the length of the extension would not be, and would therefore be subject to. What do you make of the argument that at one time it was in the statute and it was left out inadvertently? They respectfully disagree with that. I think the plain language of the statute is very clear and the court presumes that, from the Congress intends its amendments to have effect. And aside from that, the legislative history shows that Congress knew exactly which limitations it was incorporating into the statute. Specifically, the House report says that it is incorporating the first sentence of rule 4A5 into the statute, which is the time to file the motion and the requirement that there be excusable neglect or good cause. That was being incorporated, whereas the entirety of rule 4A6 was being incorporated. So certainly, Congress made a specific decision, which parts to incorporate and which parts not to incorporate

. Well, they also said these were only technical changes, right? That was said, however, the comparison between the old statute and the new statute shows the very significant changes were made. The older statute only permitted an extension of time if there was excusable neglect plus a lack of notice. Here, there can be an extension of time under the 1991 statute if there's any showing of excusable neglect or if there's any showing of good cause. Additionally, the statute, in the second part of 2011-07, permits a reopening of the appeal time if there's a showing of lack of notice, even if there's no excusable neglect. So, so- S. That's the part that was carried over the time limit in the case where the would be a permit didn't receive timely, didn't receive notice of the judgment that the judgment had been entered. Yes, Your Honor, but that's right. But excusable neglect was not required there, whereas it was under the old statute. So certainly, the 1991 statute is much more permissive toward extensions of time than the old statute and really the new statute codified what had been in the federal rules since the 1960s. So certainly, the 1991 statute made very significant changes. Do you think there's anything that would bar the rules of the public procedure from altering doctrines like forfeiture waiver and exceptional circumstances? I think that certainly is possible for the rules to do that. I don't think it was done here, but yes. Well, this is, assuming it's not jurisdictional, it is a mandatory claims processing rule. Yes, Your Honor. And it comes, it follows from a version of the statute that did impose a hard time limit. Did it not? I don't know. I would, the prior version of the statute had a time limit. It did, yes. And there's at least some question whether Congress really intended to eliminate that or whether it was done inadvertently or whether it was done on the assumption that a time limit in the rules would also be jurisdictional, as this court had suggested in some earlier cases. What is all of that? Is any of that untrue? I would disagree that there's any evidence that the omission was inadvertent

. Although it's true that the old statute did have a 30-day time limit on the extensions, the conditions to get that 30-day extension were much different from the 1990s. Yes, if that was the requirement, you could get an extension if you weren't notified of the entry of judgment. And there was no provision for any extension, no time period attached to any request for extension, other than one, where you didn't get notice of the entry of judgment. Is that so? On the under the old statute, there was a requirement that there be a lack of notice plus excusable neglect. So both of those conditions had to be met in order for there to be an extension of time. Whereas here, there's a provision for an extension of time where there's excusable neglect, but no lack of notice. There's a separate provision for an extension where there's lack of notice, but no excusable neglect. So that's what's new. That was not any original. Yes, Your Honor. That's correct. Well, given that this is a mandatory claims processing rule, and you said that you didn't think there was anything that would prevent the rules from altering doctrines like forfeiture and waiver, would it be within the discretion of the Court of Appeals to say that we are going to treat this rule, even though it's not jurisdictional, in some respects, as if it were jurisdictional. So that, for example, we will, Sue Sponte, raise the question of timeliness under the rule. I think that would be inconsistent with this Court's case law, which says that that forfeited issues should not be raised to a Sponte unless there are exceptional circumstances, extraordinary circumstances. I think it was the terminology that was used in here. There are no such extraordinary circumstances that would allow a Court of Appeals to address this to a Sponte. So, how is that consistent with your answer that you, that doctrine, could be changed via a rule? Although, oh, I'm sorry, me and me, I misunderstood your question. My understanding of a rule. Well, if the doctrine could be changed by rule, could a Court of Appeals interpret the rule as changing the doctrine? After all, it is a mandatory claims processing rule. There has to be some teeth in the concept of mandatory

. I think this, certainly, are teeth here, if there's- It means if you raise it, it's mandatory, but mandatory claim processing will can be waived. So, that's the difference. What's mandatory is if the point is made, then the- the mandatory rule applies. But if a defendant doesn't or opposing party doesn't- doesn't raise it, it can be waived. Given the yesterday, that's my understanding. And what I understood, Justice Alito's question to be, was whether by rule, the- the federal rule could say that there's no forfeiture or waver allowed that we don't consider forfeiture for waver. Certainly, that's possible, but that was not done here with rule 4A5C. And certainly, this Court has long interpreted the federal rules to facilitate disposition of cases on their merits. For example, in Sorrowitz, the Court said that, the former versus Davis, the Court held that an appeal had to proceed despite the fact that there was a defect in the notice of appeal. So, there's been a long history of the federal rules being interpreted to maximize the resolution of cases on their merits and submit rule 4A5C is no different. But if a Court were by rule to say no waver, no forfeiture, then it would be the same thing in effect as declaring the rule jurisdiction. It would have the same effect, yes, it might not be. And the rules are not supposed to do that. They generally do not. They certainly haven't in the history of the rules, understanding of Justice Alito's question was that hypothetically if the rules were changed to make that kind of provision, whether that would be permissible, we would have to look, certainly, to see if that would be consistent with the rules enabling at, which, and whether such a no forfeiture rule would be consistent with that. Well, who's- For who's benefit, do you think something like the 30-day rule was adopted? Soly for the benefit of the appellee? For the- it is for the benefit of the appellee, it's also for the benefit of the courts. Well, if it's at least partly for the benefit of the court, then why is the court stuck with whatever the appellee does on the issue of forfeiture? If the appellee is asleep and this rule was supposed at least in part to protect the jurisdiction of the court of appeals, why can't the court of appeals put some teeth in this? Not by treating it as strictly jurisdictional, but as having putting a thumb, certainly, on the scale in applying the doctrines that you were longing on. Well, I think that's where this court's case law regarding extraordinary circumstances comes in. Under extraordinary circumstances, a court of appeals can raise a violation to a spawn day. What would those circumstances be? Generally, the court has found those kinds of circumstances in the habeas corpus context where there are federalism concerns

. Certainly, although I haven't seen a case like this, there could be a situation where there is clearly bad faith on the part of the appellant. And for some reason, the appellee doesn't notice the error and the court of appeals can look past that and say there's bad faith here and we're going to enforce the rule. But certainly nothing like that has happened here. So because rule 4A5C is non-jurisdictional, we'd submit that it is subject to forfeiture, waiver and equitable considerations based on the court's case law, based upon federal statutes, and based upon the federal rules. And if there are no further questions, I'd like to reserve the balance of time please. Thank you, counsel. Mr. Stewart? Mr. Chief Justice, and may it please the court. There's one fact that's undisputed in this case, and that is that Ms. Hamer followed her notice of appeal outside of the 30-day limitation that's set forth within rule 4. And there are two approaches that the court can take in this situation. One, the route taken by the 7th Circuit below, which held that rule 4A5C is jurisdictional. And alternatively, the court can do what it did the last term in the man-read case, and decline the rule on the jurisdictional issue, and instead find that at minimum, this is a mandatory claims processing rule, that the respondents timely raised the issue in pre-marits briefing to the 7th Circuit. And that the district court was not raised in the district court, and that's the problem that is the judge says, fine, I'll give you 60 days because you have to find a new counsel. The defendant is well aware of that time extension, and if the defendant had read the rules would recognize that they say 30 days, not 60 days, but on your review, the defendant could deliberately say nothing. And then on appeal, when it's too late for the district court to correct the error, say, sorry, mandatory, and under your rules, it's quite a repeal, so I don't wave anything. It allows the defendant to create a trap. That certainly isn't what happened in this case, Justice Ginsburg. And what I think, the petitioner's argument that, in the question that you're interposing, it ignores sort of the realities of litigation

. What there are certain occasions in a litigation where generally we're all familiar with the rules, there are certain occasions in litigation where you focus more clearly on the rules. And those instances usually occur when there's something to do, when there is something obligating us to do something. For instance, if we had to respond if petitioner's counsel, former counsel, have conferred with us. Then we would have looked at, perhaps, may have looked at the rule to determine whether, what is the rule? What is the time frame that, in that case, we may have been able to do so? But you would have been able to, if you got noticed, even if you were not, you didn't, weren't consulted in advance. Once you know that there has been a 60-day order issue, you were free to say, Judge, that was a mistake, you can't do more than 30 days. And again, so we were not, we were not given the opportunity to look at the rules, we didn't have an opportunity to do so. In that case, we never have an opportunity to look at the rules. Well, there was no occasion for us to do so. In other words, once the motion was filed, usually you would have had an opportunity to object or interpose of response. That opportunity didn't come to pass. So the untimely, I could just slow down and tell me, why not? You were served with notice of the motion, weren't you? We were, and the order was entered hours after we received the motion. So we didn't have the opportunity really to look and then interpose an objection. But once that order was filed, then we're in a different place. And there's no obligation, there's no rule, there's no statute or any guidance that suggests that once in order was filed, we would have had an obligation to file perhaps a motion for reconsideration, which is what the particular. But to first, you certainly, even in the Court of Appeals, you said no jurisdictional problem here, we can see that the Court of Appeals has jurisdiction. So, and that was long after you could have looked at the rules. You said twice in your dockening statement that the Court of Appeals had jurisdiction. And it was only seven-circuit by raising the question that then you're not going to. And so, what we made those statements in a dockening statement, which is a tool used by the seven-circuit for administration of the courts. And certainly there is a preliminary statement on jurisdiction where we made the representations to the Court that we did

. That was a mistake, but there was no consequence to that mistake. In other words, the way the seven-circuit, the seven-circuit's practitioner's handbook, it gives an opportunity for the appellees to correct any mistakes that are contained in a dockening statement. And that is exactly what happened in this case. The very next day, the seven-circuit required the respondents to brief the issue of jurisdiction. We responded seven or eight days later, notified the seven-circuit that at minimum this was a mandatory claims process. Just so we understand the purpose of a dockening statement, I think, unless the seven-circuit is different than others, that its intent is for the Court to be able to identify the legal questions that will be implicated by the case. Correct? Correct. And that also gives the Court the power to decide whether some sort of mediation or some sort of bifurcated briefing or whatever else is necessary. So it serves a function, doesn't it? It does. It does. All right. So the fact that you made these statements didn't notify the seven-circuit that you had not forfeited this claim, correct? Correct. So why didn't you forfeited by making the statement? Because the seven circuits are not binding. In the seven, the dockening statements are not binding. The rule is they specifically spell out that there are any inaccuracies, any mistakes made in the dockening statement, the Court will look at that dockening statement and require the parties to correct it. Which is exactly what happened. I'm sorry. I don't know that correction, what correction means. Man, that may be a reason for us to remand this issue to the circuit, but I take correction to mean there's an error in the record, not an error in my concessions. So there was, we made a mistake in describing that the petitioner had filed a notice of appeal in the time remand

. She did. The seven circuit required us to brief that issue. We did in the, in our initial, in our pre-marriage briefing to the seven circuit. We corrected it and notified the Court that there was a problem with the timeliness of her notice of appeal, that this was a violation of a mandatory claim from the trial. The second and seventh circuit said, and tipped you off to this. You didn't tell the second that you suddenly discovered this, seven circuit, interjected it into the case. But if the rule is mandatory but not jurisdictional, then the seventh circuit had no business tipping you off. We followed the principle of party presentation and it was up to you to raise it, not up to the Court of Appeals to tell you. So this Court's jurisprudence from contract, eber, heart, and especially in Manrique. The issue of raising the issue that the violation of a mandatory claims processing rule is timely when it's raised at the initial brief in the circuit court. We did better than that here. We raised it in pre-marriage briefing to the circuit. I know that's the seventh circuit rule that you can raise it before the brief, any time before the briefing on the merits. But where else is it the rule? In the Manrique case. In Manrique, the government raised the issue of the timeliness of the, of the untimeliness of the notice of appeal in marriage briefing before the 11 circuit. Mr. Stewart, do I understand you to no longer be relying on the argument that this is a jurisdictional rule? No, we do believe that this is a jurisdictional rule. Because you've been standing up there for a while now, making arguments that would be true if it weren't a jurisdictional rule. I mean, so which is it? Do you think that this is a jurisdictional rule or that it wasn't, but still we should accept what the seventh circuit did? So our argument is that this is a jurisdictional rule. And because of that, you don't consider any of the equities. But in the alternative, if this court declines to determine that this rule is still jurisdictional, at minimum, it is a mandatory claims processing rule. And that the petition should be dismissed on that basis. But I think what Justice Ginsburg said a while ago is that when we have used that term in the past, what we've meant is that it's a mandatory claims processing rule. So it's a legal rule that you have to follow unless the other party forfeits the issue. There was no- Or unless there's a very good reason. There's some kind of extra special excuse that you have. But where there is a forfeiture and where that's the end of the matter, we can call it a mandatory claims processing rule or not, but you've forfeited it. So we believe that the rule is jurisdiction, because it has a statutory basis. Rule 4a5c, the 30-day limitation that is contained in Rule 4a5c was present in the rule and the statute when the rule was promulcated. And although the 30-day, the specific limiting language of 30 days is no longer in the statute, we do not believe that there was any intention by Congress to strip the rule of the jurisdictional nature that it enjoyed. But it was never in the statute with respect to a case like this. The only provision in the statute was when there was a failure to get notice of the entry of judgment. There was nothing in the statute covering a case where there was a reason other than failure. The statute was blank on that. It's no longer blank. It gives permission for an extension. But the way the pre-1991 statute read, it provided the district court's authority to extend the time to file a notice of appeal upon a showing of excusable neglect. Now, it's true. There was only one condition that Congress deemed to constitute excusable neglect in the prior 1991 statute, and that was if a party did not receive notice. But the idea and the concept that the 30-day, that 30-day limitation was promised on a showing of excusable neglect is still remained in the statute today

. But in the alternative, if this court declines to determine that this rule is still jurisdictional, at minimum, it is a mandatory claims processing rule. And that the petition should be dismissed on that basis. But I think what Justice Ginsburg said a while ago is that when we have used that term in the past, what we've meant is that it's a mandatory claims processing rule. So it's a legal rule that you have to follow unless the other party forfeits the issue. There was no- Or unless there's a very good reason. There's some kind of extra special excuse that you have. But where there is a forfeiture and where that's the end of the matter, we can call it a mandatory claims processing rule or not, but you've forfeited it. So we believe that the rule is jurisdiction, because it has a statutory basis. Rule 4a5c, the 30-day limitation that is contained in Rule 4a5c was present in the rule and the statute when the rule was promulcated. And although the 30-day, the specific limiting language of 30 days is no longer in the statute, we do not believe that there was any intention by Congress to strip the rule of the jurisdictional nature that it enjoyed. But it was never in the statute with respect to a case like this. The only provision in the statute was when there was a failure to get notice of the entry of judgment. There was nothing in the statute covering a case where there was a reason other than failure. The statute was blank on that. It's no longer blank. It gives permission for an extension. But the way the pre-1991 statute read, it provided the district court's authority to extend the time to file a notice of appeal upon a showing of excusable neglect. Now, it's true. There was only one condition that Congress deemed to constitute excusable neglect in the prior 1991 statute, and that was if a party did not receive notice. But the idea and the concept that the 30-day, that 30-day limitation was promised on a showing of excusable neglect is still remained in the statute today. But what was the text of this statute? I thought it was clear that it only applied in the case of failure to receive notice of the entry of judgment. I'll read the text to you. The district court may extend the time for appeal not exceeding 30 days from the expiration of the original time here in prescribed upon a showing of excusable neglect. Based upon a failure of a party to learn of the entry of the judgment. So it was based upon so that was the only condition? That was the only condition. But the idea and the concept was you had to demonstrate excusable neglect. Now, certainly in the rule, what, you know, the rule did more for over time and evolved to take into account other things, good cause, for instance. And eventually, rule 4a6 came into being, which is what the 1991 amendments were conforming there too. But there is no evidence that any member of Congress ever criticized the 30-day limitation in rule 4a6. You disagree with the D.C. when this issue would be before the D.C. Circuit, the D.C. Circuit says the 30-day limit on extension appears nowhere in the U.S. code. And that is true. It doesn't appear in the U

. But what was the text of this statute? I thought it was clear that it only applied in the case of failure to receive notice of the entry of judgment. I'll read the text to you. The district court may extend the time for appeal not exceeding 30 days from the expiration of the original time here in prescribed upon a showing of excusable neglect. Based upon a failure of a party to learn of the entry of the judgment. So it was based upon so that was the only condition? That was the only condition. But the idea and the concept was you had to demonstrate excusable neglect. Now, certainly in the rule, what, you know, the rule did more for over time and evolved to take into account other things, good cause, for instance. And eventually, rule 4a6 came into being, which is what the 1991 amendments were conforming there too. But there is no evidence that any member of Congress ever criticized the 30-day limitation in rule 4a6. You disagree with the D.C. when this issue would be before the D.C. Circuit, the D.C. Circuit says the 30-day limit on extension appears nowhere in the U.S. code. And that is true. It doesn't appear in the U.S. code. The limiting 30 days is no longer in the U.S. code. That is correct. We believe that it was inadvertently omitted in the 1991 amendments. That's our position. Tell me. I didn't hear you. Is there any direct legislative history saying that it was inadvertent? No. It is not. And I think the issue that we have is the silence now informs the silence is informed by the... Where else have we ever given me your best authority for us reading into a statute omitted language? You know, I can't give you a precise case that comes up with a situation like this. But I think the history of this rule going back nearly a century that the deadline regarding notices of appeals have been treated as jurisdiction in the American Court for a century. If Congress intended to change the jurisdictional nature of the rule, it would have said so. And there is nothing in this legislative history that suggests Congress intended to do that. Well, there is a problem with that because it did change the rule fundamentally when it permitted the opening of a judgment for six months if you didn't receive notice of it

.S. code. The limiting 30 days is no longer in the U.S. code. That is correct. We believe that it was inadvertently omitted in the 1991 amendments. That's our position. Tell me. I didn't hear you. Is there any direct legislative history saying that it was inadvertent? No. It is not. And I think the issue that we have is the silence now informs the silence is informed by the... Where else have we ever given me your best authority for us reading into a statute omitted language? You know, I can't give you a precise case that comes up with a situation like this. But I think the history of this rule going back nearly a century that the deadline regarding notices of appeals have been treated as jurisdiction in the American Court for a century. If Congress intended to change the jurisdictional nature of the rule, it would have said so. And there is nothing in this legislative history that suggests Congress intended to do that. Well, there is a problem with that because it did change the rule fundamentally when it permitted the opening of a judgment for six months if you didn't receive notice of it. That's a fairly radical change from the norm. And so why would it be inappropriate to assume that Congress intended for a district court to exercise its discretion and judgment in deciding how much was a reasonable time for excusable or for good cause? So you look at the inconsistency that was established then. Right? If a district court could extend the time up to 14 days once a party who never received notice of the final order, the district court could extend the time to file that notice appeal for 14 days. Under the petitioner's theory, if the 30-day limitation was removed, the district court would have the authority to extend the time to file a notice of appeal as the Chief Justice articulated up to three years, a year. There is no limitation in the statute. That inconsistency is why we believe Congress and the Federal Administration has to be for good cause. It has to. So it's self-limiting in that way. It is your honor, but it is it is it is it is ambiguous and that's why we believe that history can inform us. So suppose there is a congressional statute which does set forth a jurisdictional rule and Congress wakes up one day and decides you know what we don't think that this rule should be jurisdictional anymore. How does it change that? Through legislation, Congress can change anything. Any statute? Yes. So Congress would presumably pass a piece of legislation which no longer included the rule, right? They could, but you would think that they would have done so. Especially in a situation like this, where? Well, that's what Congress did here, I guess. I mean, what else do you expect Congress to do if it changes its mind? I would expect them given the history of the deadline regarding notice of appeal to at least said that that's what they're going to do. Like we're taking away this jurisdictional rule and we really mean it. There was no, in this instance, there was no mention of rule 4156. There was no mention of the 30-day limitation. But at the end of the day, we get to the same place. If the court is not inclined to rule that rule 415C is jurisdictional, at minimum, it is a mandatory claims processing rule

. That's a fairly radical change from the norm. And so why would it be inappropriate to assume that Congress intended for a district court to exercise its discretion and judgment in deciding how much was a reasonable time for excusable or for good cause? So you look at the inconsistency that was established then. Right? If a district court could extend the time up to 14 days once a party who never received notice of the final order, the district court could extend the time to file that notice appeal for 14 days. Under the petitioner's theory, if the 30-day limitation was removed, the district court would have the authority to extend the time to file a notice of appeal as the Chief Justice articulated up to three years, a year. There is no limitation in the statute. That inconsistency is why we believe Congress and the Federal Administration has to be for good cause. It has to. So it's self-limiting in that way. It is your honor, but it is it is it is it is ambiguous and that's why we believe that history can inform us. So suppose there is a congressional statute which does set forth a jurisdictional rule and Congress wakes up one day and decides you know what we don't think that this rule should be jurisdictional anymore. How does it change that? Through legislation, Congress can change anything. Any statute? Yes. So Congress would presumably pass a piece of legislation which no longer included the rule, right? They could, but you would think that they would have done so. Especially in a situation like this, where? Well, that's what Congress did here, I guess. I mean, what else do you expect Congress to do if it changes its mind? I would expect them given the history of the deadline regarding notice of appeal to at least said that that's what they're going to do. Like we're taking away this jurisdictional rule and we really mean it. There was no, in this instance, there was no mention of rule 4156. There was no mention of the 30-day limitation. But at the end of the day, we get to the same place. If the court is not inclined to rule that rule 415C is jurisdictional, at minimum, it is a mandatory claims processing rule. In what way has your client been prejudiced by the seven circuits decision? I mean, other than not enforcing the rule, is there any way witnesses, documents, anything else that is different in the appeal on the merits in light of the fact that they got this extension? No, you're on it. I can't say that we have. Right. And, Mr. Stewart, if it isn't jurisdictional, one of the questions raised is whether you would have needed to file a cross appeal. Sure. And there's another circuit split on that question and two very fine opinions, one by Judge Hartz and another by Judge Sutton, disagreeing over that. Can you tell me why you don't think you needed to file a appeal yourself if you wish to challenge it at a district court order? Sure. We'll give that to normal course. Sure, Judge Gorsett. This court in the Jennings case described the instances where an appellate would be required to file a cross appeal. There are two instances. One, that the appellate is seeking to enlarge its own rights. We weren't doing that here because we'd won the case of some rejection. The other instance would be if you're seeking to lessen the rights of the appellant. We were not doing that either. To the extent, Mr. Hems. That's not exactly what you wanted to do is lessen the rights of the appellant by kicking the appellant out of court. To the extent, Ms

. In what way has your client been prejudiced by the seven circuits decision? I mean, other than not enforcing the rule, is there any way witnesses, documents, anything else that is different in the appeal on the merits in light of the fact that they got this extension? No, you're on it. I can't say that we have. Right. And, Mr. Stewart, if it isn't jurisdictional, one of the questions raised is whether you would have needed to file a cross appeal. Sure. And there's another circuit split on that question and two very fine opinions, one by Judge Hartz and another by Judge Sutton, disagreeing over that. Can you tell me why you don't think you needed to file a appeal yourself if you wish to challenge it at a district court order? Sure. We'll give that to normal course. Sure, Judge Gorsett. This court in the Jennings case described the instances where an appellate would be required to file a cross appeal. There are two instances. One, that the appellate is seeking to enlarge its own rights. We weren't doing that here because we'd won the case of some rejection. The other instance would be if you're seeking to lessen the rights of the appellant. We were not doing that either. To the extent, Mr. Hems. That's not exactly what you wanted to do is lessen the rights of the appellant by kicking the appellant out of court. To the extent, Ms. Haimer had any right, it was limited to the initial 30 days under rule 4A1. She would argue, I think, just to put her argument in the best light and let you respond to it is, I obtained this additional right from the district court of an extension of time, which allowed me to pursue this appeal in the court of appeals. Judge Sutton would say that is an extension of a new right by the district court that you wish to extinguish, and therefore need a notice of appeal. That's the line of reasoning he follows. What's wrong with that? So the problem with that reasoning is that the district court providing the additional time gave her some right. The district court didn't have the authority in the first place to give that time, and that's because of rule 4 and rule 26. Rule 4 says that a party has 30 days to file a notice of appeal. Rule 4A5C allows the district court to extend that period to an additional 30 days, but no more. And rule 26 says that a court has the authority to extend the time to comply with the rules with the exception of rule 4. So there was no opportunity for the district courts to provide any further days other than what is set forth in rule 4. So the court didn't have the authority to give her the time that it did. Ms. Hamer didn't have a right to file the notice of appeal when she did. That's why it's mandatory. There are no further questions. Thank you, counsel. Mr. Herstoff, ten minutes. Thank you. Just a couple of quick points

. Haimer had any right, it was limited to the initial 30 days under rule 4A1. She would argue, I think, just to put her argument in the best light and let you respond to it is, I obtained this additional right from the district court of an extension of time, which allowed me to pursue this appeal in the court of appeals. Judge Sutton would say that is an extension of a new right by the district court that you wish to extinguish, and therefore need a notice of appeal. That's the line of reasoning he follows. What's wrong with that? So the problem with that reasoning is that the district court providing the additional time gave her some right. The district court didn't have the authority in the first place to give that time, and that's because of rule 4 and rule 26. Rule 4 says that a party has 30 days to file a notice of appeal. Rule 4A5C allows the district court to extend that period to an additional 30 days, but no more. And rule 26 says that a court has the authority to extend the time to comply with the rules with the exception of rule 4. So there was no opportunity for the district courts to provide any further days other than what is set forth in rule 4. So the court didn't have the authority to give her the time that it did. Ms. Hamer didn't have a right to file the notice of appeal when she did. That's why it's mandatory. There are no further questions. Thank you, counsel. Mr. Herstoff, ten minutes. Thank you. Just a couple of quick points. Regarding the argument that there is no forfeiture if the issue is raised in the merits brief. That argument rests on a misreading of contract. The contract held that there was a forfeiture where among other things the issue had not been raised in the brief. The contract did not say that any time it is raised in the merits brief then there is no forfeiture. Similarly, in Manrique, it was held that there was no forfeiture. But there, the first possible opportunity to address the issue was in the merits brief because the appellate there had no idea what the point was going to raise in there. Opening brief. What point in time do you think the issue was waived? The issue was waived when they said in the docketing statement twice that the appeal was timely. So not before that. Nothing occurred in the district court waived the. For a affirmative waver now, there was certainly forfeiture. When was it forfeited? It was forfeited not no later than 30 days after the district court granted the extent of time. So it wasn't forfeited on the day when the district court entered the order? No, no, Your Honor, I'm not arguing with that. It was because the order didn't preclude the filing of the notice of appeal prior to the expiration of the time in the order. That's right. No, we're certainly not arguing that there was a forfeiture based upon the one day period between the filing of the motion and the granting of the motion. So you think that the appeal we had on pain of forfeiture, they had an obligation to inform the other side and the court just prior to the running out of the time of, you know, you're going to have a problem here under the rule if you don't file your notice of the appeal right away. They had that obligation to do that. Did it have an obligation to do that if they wanted rule for a 5C to be enforced? They also forfeited by not appealing or cross appealing and didn't just wanted to address. How was that consistent with the adversary system? And this isn't the other side that did you have an attorney at that point? No, she was pro say at the time that the district court granted the motion for extension of time because the district court granted that along with the motion for withdrawal

. Regarding the argument that there is no forfeiture if the issue is raised in the merits brief. That argument rests on a misreading of contract. The contract held that there was a forfeiture where among other things the issue had not been raised in the brief. The contract did not say that any time it is raised in the merits brief then there is no forfeiture. Similarly, in Manrique, it was held that there was no forfeiture. But there, the first possible opportunity to address the issue was in the merits brief because the appellate there had no idea what the point was going to raise in there. Opening brief. What point in time do you think the issue was waived? The issue was waived when they said in the docketing statement twice that the appeal was timely. So not before that. Nothing occurred in the district court waived the. For a affirmative waver now, there was certainly forfeiture. When was it forfeited? It was forfeited not no later than 30 days after the district court granted the extent of time. So it wasn't forfeited on the day when the district court entered the order? No, no, Your Honor, I'm not arguing with that. It was because the order didn't preclude the filing of the notice of appeal prior to the expiration of the time in the order. That's right. No, we're certainly not arguing that there was a forfeiture based upon the one day period between the filing of the motion and the granting of the motion. So you think that the appeal we had on pain of forfeiture, they had an obligation to inform the other side and the court just prior to the running out of the time of, you know, you're going to have a problem here under the rule if you don't file your notice of the appeal right away. They had that obligation to do that. Did it have an obligation to do that if they wanted rule for a 5C to be enforced? They also forfeited by not appealing or cross appealing and didn't just wanted to address. How was that consistent with the adversary system? And this isn't the other side that did you have an attorney at that point? No, she was pro say at the time that the district court granted the motion for extension of time because the district court granted that along with the motion for withdrawal. So Miss Haimler proceeded pro say from then on. And so the appeal is the respondents here forfeited their right to rely on rule for a 5C by not objecting to the extension. They all are also to go to justice court such as point on the forfeited by failing to appeal or cross appeal. The respondents argue that their rights were not being enlarged because they got everything that they wanted from the district court summary judgment order. However, that focuses on the wrong order from the district court. The order granting the extension of time said that she had two months to extend out to file the notice of appeal two months extra. And here the respondents are seeking in essence a reversal of the district court's order granting the extension of time. And in order for the decision saying that she was not entitled to that extension of time, that is the order from which the appeal had to be taken was summary judgment for the defendant. That's the judgment, right? That's the district court's judgment on the merits, yes. And the appaley wants an affirmance of that judgment. Yes, they do. But by- That could be affirmed on the ground that summary judgment was proper. It could also be affirmed on the ground that the notice of appeal was untimely. Well, I respectfully submit that if down in the latter case it would not be an affirmance, it would just be a dismissal of the appeal. So what the respondents are seeking is not an affirmance. They're seeking an order and judgment from the appellate court saying that the district court's judgment is completely innocent. They're insulated from appellate review and in order for the appellate court to do that, they would need to reverse the district's courts order granting the extension of time. Well, that doesn't seem right to me. I mean, the relief they want is that they can't be sued, right? Or they win to say that the ground on which they get to that objective makes requires across appeal. I don't think that's right

. So Miss Haimler proceeded pro say from then on. And so the appeal is the respondents here forfeited their right to rely on rule for a 5C by not objecting to the extension. They all are also to go to justice court such as point on the forfeited by failing to appeal or cross appeal. The respondents argue that their rights were not being enlarged because they got everything that they wanted from the district court summary judgment order. However, that focuses on the wrong order from the district court. The order granting the extension of time said that she had two months to extend out to file the notice of appeal two months extra. And here the respondents are seeking in essence a reversal of the district court's order granting the extension of time. And in order for the decision saying that she was not entitled to that extension of time, that is the order from which the appeal had to be taken was summary judgment for the defendant. That's the judgment, right? That's the district court's judgment on the merits, yes. And the appaley wants an affirmance of that judgment. Yes, they do. But by- That could be affirmed on the ground that summary judgment was proper. It could also be affirmed on the ground that the notice of appeal was untimely. Well, I respectfully submit that if down in the latter case it would not be an affirmance, it would just be a dismissal of the appeal. So what the respondents are seeking is not an affirmance. They're seeking an order and judgment from the appellate court saying that the district court's judgment is completely innocent. They're insulated from appellate review and in order for the appellate court to do that, they would need to reverse the district's courts order granting the extension of time. Well, that doesn't seem right to me. I mean, the relief they want is that they can't be sued, right? Or they win to say that the ground on which they get to that objective makes requires across appeal. I don't think that's right. Well, respectfully submit that the- what the respondents are seeking to do is to dismiss the appeal. So what they're seeking from the seventh circuit is not any kind of decision at all about whether the district court's judgment. Well, I don't think they care whether the seventh circuit says you win or they say that your opponents appeal is dismissed. They certainly might not- I might not care. I agree with that. However, if they're trying to get the appeal dismissed, that's lessening Miss Hamer's rights because without the respondents objecting to the extension of time, Miss Hamer's granted the right to appellate review, which is usually what any appellant has is the right to appeal a district's court's judgment. The reason why- Every time the party that wins in the district court wins on the merits in the district court also thinks that it has a jurisdictional argument they have to file across appeal. A jurisdictional argument? No, because the jurisdiction can be raised- All right. And a mandatory claims processing argument they have to file across appeal. If they're seeking to alter what the district court did, in other words, if they're trying to get the appellate court to rule that the district court was wrong in the way that they applied to claim processing rule, then yes, an appeal across appeal would be required. If there are no further questions, we respectfully request that the court reverse the seventh circuit's judgment and remain for consideration of Miss Hamer's appeal on the merits. Thank you. The case is submitted. Thank you, Council.

We'll hear argument this morning in case 16658 hammer versus neighborhood housing services of Chicago. Mr. Hurstoff? Mr. Chief Justice and may it please the court. One of the fundamental tenets of our constitutional structure is that only Congress can set the jurisdiction of the lower courts. Based on that fundamental principle, Federal Rule of Appellate Procedure 4A5C is non-Jurisdictional. The plain language of 28 USC Section 2107C is unambiguous. The district court can extend the time to appeal as long as a motion is timely filed and there's been a show of excusable neglect or good cause. No maximum extension of time is set in the statute or in any other statute and therefore Rule 4A5C does not constitute a limitation on a court's jurisdiction. Because of that, Rule 4A5C is subject to forfeiture, waiver and equitable considerations. And here there have been several acts of forfeiture and waiver. The respondents forfeited their right to rely on Rule 4A5C by a lot of- Should we reach that question, Council? So, I mean, this seven-circuit typed this limitation as jurisdictional, so they never went on to consider any question of forfeiture or waiver. So, I do suggest that we should decide those questions in the first instance. I submit that the record is sufficiently clear that the court can reach that issue here. Certainly, the court has discretion just to have it considered on remand, but we do think that the forfeiture and waivers on are clear here. The issues of equitable considerations, special circumstances that you talk about. Are there limits to those? I mean, let's say the issue comes up three years later. Can the district court at that point consider to extend the time to appeal? Well, certainly the equities would have to be weighed. Certainly the longer the extension is perhaps the less reasonable it is for an appellant to rely on the district court's order. But assuming that an order is relied on in good faith by the appellant, there's been no objection from the other side. There's been no showing of bad faith. We think that the equities should be considered. And here it's undisputed that Miss Hamer was misled by the district court's order. There's absolutely no showing of bad faith here. The seventh circuit itself, I recognize that Miss Hamer was misled. And under those circumstances, we think that equitable considerations should require that the appeal be decided on the merits. But who misled her? Was it the court or was it her own attorney? Was this malpractice on the attorney's part for asking for an extension that exceeded the Federal rules, assuming it's non-Jewelstiction that the statute is that you're right that this is the non-Jewelstiction barrier, it would still be a statutory barrier. A Federal rules barrier. Yes, and we then, we think that Miss Hamer was misled by the district court's order. It's certainly true that she may have also been misled by the attorney's motion for the extension of time. But both of those factored in here and the equities should be considered. That was an attorney who simultaneously was asking to be relieved from representing her, right? That's correct, Justice Ginsburg, yes. And this case is directly analogous to Harris truck lines. In Harris truck lines, the attorney asks for an extension of time that was prohibited both by rule and by statute. And then yet the court held that the reliance on the extension of time required that the equities be considered and required that the appeal be decided on the merits. And we submit here the same course should be followed. As a matter of custom and usage in the district court, could you just tell me, suppose the verdict is returned or the judge indicates what the ruling will be, can both sides and do both sides sometimes say, please don't enter the judgment, your honor, so that we can talk settlement. Does that happen? So I know to the parties ask for the district. Yes, both parties tell in order to avoid these problems say, please don't enter judgment. And that certainly can happen in this particular. Does it happen? I was curious enough. I've certainly seen some instances where a court comes out with a decision and then asks the parties to submit a proposed form of judgment so that that could certainly happen. Here the final judgment was entered alongside. My question was a little different, could they say, your honor, we're in settlement negotiations, could you please withhold entry of judgment? I'm not sure that I've seen that specific scenario, especially in the summary judgment context where the motion was pending. What I have seen is where summary judgment motions are pending and the parties ask the court not to issue a decision at all. I'm not sure I've seen a situation where a decision is out and the parties have asked the court to approve. Could the parties in the district court agree to withhold entry of judgment for years? And therefore, prejudice, the court of appeals, when ultimately it has a case that's old? For years now, because on Rule 58 of the Rules of Civil Procedure says that the judgment is considered to be entered. Is it 180 days or something like that? Yes, Justice Kennedy. So, but on the outside of that, I don't see any barrier to the parties asking the court to do that. Although I have one brief, and then we just brief in this case, telling us that we were wrong in drawing the distinction between what's in a statute, jurisdiction of what's in a rule, non-jurisictional, that instead anything that shifts a case from one court to the other, as notice of appeal, does, that should be considered jurisdictional. This is Professor Dodson's brief. Yes, and I respectfully disagree with that for a couple of reasons. That formulation of jurisdiction is inconsistent with this Court's case law and also with the rules of civil procedure. For instance, under Professor Dodson's formulation of jurisdiction, the time to appeal from the VA to the Court of Appeals for Veterans claims would be jurisdictional because it involves the transfer of the Judicatory Authority, yet the Court unanimously held to that time period is non-jurisictional. Similarly, the Federal Rules of Civil Procedure, such as Rules 54B and 23F, would be jurisdictional under Professor Dodson's formulation, but we know from Rule 82 that the rules of civil procedure are non-jurisictional, so therefore Professor Dodson's formulation of jurisdiction is incorrect. Do you think a rule can ever be jurisdictional without being codified in a statute? A rule that is not in a statute, no, I think that they cannot. If that's a flat rule, there are no exceptions to it. What if the rule, for example, interpreted statutory language? The rule interpreted statutory language, then perhaps under that interpretation of the statute, the statute could be jurisdictional, but the rule on its own could never be jurisdictional. And why is that? It's an old stems from a long line of the courts cases such as Conjric, and it also stems from Article 3 of the Constitution, which says that it's for Congress to establish the lower courts. So... Well, we have drawn the line. I think it was in Justice Thomas's decision between statute and rule pretty clearly. Yes, Justice Ginsburg, both versus Russell, and establishes that, and Conjric versus Ryan establishes it, and cases as far back as the 1940s and perhaps even earlier have also said that court promulgated rules cannot be jurisdictional. So we think that the same course should be followed here. The rule by its terms, I suppose, it says you've got to file the motion no later than 30 days after the time prescribed under rule 4A, right? That's right, Mr. Chair. But then it's quite clear that that's not jurisdictional, right? The rule 4A5C is not jurisdictional, yes, Your Honor. No, I'm talking about the time to file the motion for an extension. Oh, I'm sorry, the time to file, yes, that underboils that probably would be jurisdictional because it's right in the statute as well. So the first sentence of Section 2107C sets the time to file the motion. So I think underboils that would likely be jurisdictional. The motion for an extension. The time to file the motion, yes, that would be jurisdictional, whereas the length of the extension would not be, and would therefore be subject to. What do you make of the argument that at one time it was in the statute and it was left out inadvertently? They respectfully disagree with that. I think the plain language of the statute is very clear and the court presumes that, from the Congress intends its amendments to have effect. And aside from that, the legislative history shows that Congress knew exactly which limitations it was incorporating into the statute. Specifically, the House report says that it is incorporating the first sentence of rule 4A5 into the statute, which is the time to file the motion and the requirement that there be excusable neglect or good cause. That was being incorporated, whereas the entirety of rule 4A6 was being incorporated. So certainly, Congress made a specific decision, which parts to incorporate and which parts not to incorporate. Well, they also said these were only technical changes, right? That was said, however, the comparison between the old statute and the new statute shows the very significant changes were made. The older statute only permitted an extension of time if there was excusable neglect plus a lack of notice. Here, there can be an extension of time under the 1991 statute if there's any showing of excusable neglect or if there's any showing of good cause. Additionally, the statute, in the second part of 2011-07, permits a reopening of the appeal time if there's a showing of lack of notice, even if there's no excusable neglect. So, so- S. That's the part that was carried over the time limit in the case where the would be a permit didn't receive timely, didn't receive notice of the judgment that the judgment had been entered. Yes, Your Honor, but that's right. But excusable neglect was not required there, whereas it was under the old statute. So certainly, the 1991 statute is much more permissive toward extensions of time than the old statute and really the new statute codified what had been in the federal rules since the 1960s. So certainly, the 1991 statute made very significant changes. Do you think there's anything that would bar the rules of the public procedure from altering doctrines like forfeiture waiver and exceptional circumstances? I think that certainly is possible for the rules to do that. I don't think it was done here, but yes. Well, this is, assuming it's not jurisdictional, it is a mandatory claims processing rule. Yes, Your Honor. And it comes, it follows from a version of the statute that did impose a hard time limit. Did it not? I don't know. I would, the prior version of the statute had a time limit. It did, yes. And there's at least some question whether Congress really intended to eliminate that or whether it was done inadvertently or whether it was done on the assumption that a time limit in the rules would also be jurisdictional, as this court had suggested in some earlier cases. What is all of that? Is any of that untrue? I would disagree that there's any evidence that the omission was inadvertent. Although it's true that the old statute did have a 30-day time limit on the extensions, the conditions to get that 30-day extension were much different from the 1990s. Yes, if that was the requirement, you could get an extension if you weren't notified of the entry of judgment. And there was no provision for any extension, no time period attached to any request for extension, other than one, where you didn't get notice of the entry of judgment. Is that so? On the under the old statute, there was a requirement that there be a lack of notice plus excusable neglect. So both of those conditions had to be met in order for there to be an extension of time. Whereas here, there's a provision for an extension of time where there's excusable neglect, but no lack of notice. There's a separate provision for an extension where there's lack of notice, but no excusable neglect. So that's what's new. That was not any original. Yes, Your Honor. That's correct. Well, given that this is a mandatory claims processing rule, and you said that you didn't think there was anything that would prevent the rules from altering doctrines like forfeiture and waiver, would it be within the discretion of the Court of Appeals to say that we are going to treat this rule, even though it's not jurisdictional, in some respects, as if it were jurisdictional. So that, for example, we will, Sue Sponte, raise the question of timeliness under the rule. I think that would be inconsistent with this Court's case law, which says that that forfeited issues should not be raised to a Sponte unless there are exceptional circumstances, extraordinary circumstances. I think it was the terminology that was used in here. There are no such extraordinary circumstances that would allow a Court of Appeals to address this to a Sponte. So, how is that consistent with your answer that you, that doctrine, could be changed via a rule? Although, oh, I'm sorry, me and me, I misunderstood your question. My understanding of a rule. Well, if the doctrine could be changed by rule, could a Court of Appeals interpret the rule as changing the doctrine? After all, it is a mandatory claims processing rule. There has to be some teeth in the concept of mandatory. I think this, certainly, are teeth here, if there's- It means if you raise it, it's mandatory, but mandatory claim processing will can be waived. So, that's the difference. What's mandatory is if the point is made, then the- the mandatory rule applies. But if a defendant doesn't or opposing party doesn't- doesn't raise it, it can be waived. Given the yesterday, that's my understanding. And what I understood, Justice Alito's question to be, was whether by rule, the- the federal rule could say that there's no forfeiture or waver allowed that we don't consider forfeiture for waver. Certainly, that's possible, but that was not done here with rule 4A5C. And certainly, this Court has long interpreted the federal rules to facilitate disposition of cases on their merits. For example, in Sorrowitz, the Court said that, the former versus Davis, the Court held that an appeal had to proceed despite the fact that there was a defect in the notice of appeal. So, there's been a long history of the federal rules being interpreted to maximize the resolution of cases on their merits and submit rule 4A5C is no different. But if a Court were by rule to say no waver, no forfeiture, then it would be the same thing in effect as declaring the rule jurisdiction. It would have the same effect, yes, it might not be. And the rules are not supposed to do that. They generally do not. They certainly haven't in the history of the rules, understanding of Justice Alito's question was that hypothetically if the rules were changed to make that kind of provision, whether that would be permissible, we would have to look, certainly, to see if that would be consistent with the rules enabling at, which, and whether such a no forfeiture rule would be consistent with that. Well, who's- For who's benefit, do you think something like the 30-day rule was adopted? Soly for the benefit of the appellee? For the- it is for the benefit of the appellee, it's also for the benefit of the courts. Well, if it's at least partly for the benefit of the court, then why is the court stuck with whatever the appellee does on the issue of forfeiture? If the appellee is asleep and this rule was supposed at least in part to protect the jurisdiction of the court of appeals, why can't the court of appeals put some teeth in this? Not by treating it as strictly jurisdictional, but as having putting a thumb, certainly, on the scale in applying the doctrines that you were longing on. Well, I think that's where this court's case law regarding extraordinary circumstances comes in. Under extraordinary circumstances, a court of appeals can raise a violation to a spawn day. What would those circumstances be? Generally, the court has found those kinds of circumstances in the habeas corpus context where there are federalism concerns. Certainly, although I haven't seen a case like this, there could be a situation where there is clearly bad faith on the part of the appellant. And for some reason, the appellee doesn't notice the error and the court of appeals can look past that and say there's bad faith here and we're going to enforce the rule. But certainly nothing like that has happened here. So because rule 4A5C is non-jurisdictional, we'd submit that it is subject to forfeiture, waiver and equitable considerations based on the court's case law, based upon federal statutes, and based upon the federal rules. And if there are no further questions, I'd like to reserve the balance of time please. Thank you, counsel. Mr. Stewart? Mr. Chief Justice, and may it please the court. There's one fact that's undisputed in this case, and that is that Ms. Hamer followed her notice of appeal outside of the 30-day limitation that's set forth within rule 4. And there are two approaches that the court can take in this situation. One, the route taken by the 7th Circuit below, which held that rule 4A5C is jurisdictional. And alternatively, the court can do what it did the last term in the man-read case, and decline the rule on the jurisdictional issue, and instead find that at minimum, this is a mandatory claims processing rule, that the respondents timely raised the issue in pre-marits briefing to the 7th Circuit. And that the district court was not raised in the district court, and that's the problem that is the judge says, fine, I'll give you 60 days because you have to find a new counsel. The defendant is well aware of that time extension, and if the defendant had read the rules would recognize that they say 30 days, not 60 days, but on your review, the defendant could deliberately say nothing. And then on appeal, when it's too late for the district court to correct the error, say, sorry, mandatory, and under your rules, it's quite a repeal, so I don't wave anything. It allows the defendant to create a trap. That certainly isn't what happened in this case, Justice Ginsburg. And what I think, the petitioner's argument that, in the question that you're interposing, it ignores sort of the realities of litigation. What there are certain occasions in a litigation where generally we're all familiar with the rules, there are certain occasions in litigation where you focus more clearly on the rules. And those instances usually occur when there's something to do, when there is something obligating us to do something. For instance, if we had to respond if petitioner's counsel, former counsel, have conferred with us. Then we would have looked at, perhaps, may have looked at the rule to determine whether, what is the rule? What is the time frame that, in that case, we may have been able to do so? But you would have been able to, if you got noticed, even if you were not, you didn't, weren't consulted in advance. Once you know that there has been a 60-day order issue, you were free to say, Judge, that was a mistake, you can't do more than 30 days. And again, so we were not, we were not given the opportunity to look at the rules, we didn't have an opportunity to do so. In that case, we never have an opportunity to look at the rules. Well, there was no occasion for us to do so. In other words, once the motion was filed, usually you would have had an opportunity to object or interpose of response. That opportunity didn't come to pass. So the untimely, I could just slow down and tell me, why not? You were served with notice of the motion, weren't you? We were, and the order was entered hours after we received the motion. So we didn't have the opportunity really to look and then interpose an objection. But once that order was filed, then we're in a different place. And there's no obligation, there's no rule, there's no statute or any guidance that suggests that once in order was filed, we would have had an obligation to file perhaps a motion for reconsideration, which is what the particular. But to first, you certainly, even in the Court of Appeals, you said no jurisdictional problem here, we can see that the Court of Appeals has jurisdiction. So, and that was long after you could have looked at the rules. You said twice in your dockening statement that the Court of Appeals had jurisdiction. And it was only seven-circuit by raising the question that then you're not going to. And so, what we made those statements in a dockening statement, which is a tool used by the seven-circuit for administration of the courts. And certainly there is a preliminary statement on jurisdiction where we made the representations to the Court that we did. That was a mistake, but there was no consequence to that mistake. In other words, the way the seven-circuit, the seven-circuit's practitioner's handbook, it gives an opportunity for the appellees to correct any mistakes that are contained in a dockening statement. And that is exactly what happened in this case. The very next day, the seven-circuit required the respondents to brief the issue of jurisdiction. We responded seven or eight days later, notified the seven-circuit that at minimum this was a mandatory claims process. Just so we understand the purpose of a dockening statement, I think, unless the seven-circuit is different than others, that its intent is for the Court to be able to identify the legal questions that will be implicated by the case. Correct? Correct. And that also gives the Court the power to decide whether some sort of mediation or some sort of bifurcated briefing or whatever else is necessary. So it serves a function, doesn't it? It does. It does. All right. So the fact that you made these statements didn't notify the seven-circuit that you had not forfeited this claim, correct? Correct. So why didn't you forfeited by making the statement? Because the seven circuits are not binding. In the seven, the dockening statements are not binding. The rule is they specifically spell out that there are any inaccuracies, any mistakes made in the dockening statement, the Court will look at that dockening statement and require the parties to correct it. Which is exactly what happened. I'm sorry. I don't know that correction, what correction means. Man, that may be a reason for us to remand this issue to the circuit, but I take correction to mean there's an error in the record, not an error in my concessions. So there was, we made a mistake in describing that the petitioner had filed a notice of appeal in the time remand. She did. The seven circuit required us to brief that issue. We did in the, in our initial, in our pre-marriage briefing to the seven circuit. We corrected it and notified the Court that there was a problem with the timeliness of her notice of appeal, that this was a violation of a mandatory claim from the trial. The second and seventh circuit said, and tipped you off to this. You didn't tell the second that you suddenly discovered this, seven circuit, interjected it into the case. But if the rule is mandatory but not jurisdictional, then the seventh circuit had no business tipping you off. We followed the principle of party presentation and it was up to you to raise it, not up to the Court of Appeals to tell you. So this Court's jurisprudence from contract, eber, heart, and especially in Manrique. The issue of raising the issue that the violation of a mandatory claims processing rule is timely when it's raised at the initial brief in the circuit court. We did better than that here. We raised it in pre-marriage briefing to the circuit. I know that's the seventh circuit rule that you can raise it before the brief, any time before the briefing on the merits. But where else is it the rule? In the Manrique case. In Manrique, the government raised the issue of the timeliness of the, of the untimeliness of the notice of appeal in marriage briefing before the 11 circuit. Mr. Stewart, do I understand you to no longer be relying on the argument that this is a jurisdictional rule? No, we do believe that this is a jurisdictional rule. Because you've been standing up there for a while now, making arguments that would be true if it weren't a jurisdictional rule. I mean, so which is it? Do you think that this is a jurisdictional rule or that it wasn't, but still we should accept what the seventh circuit did? So our argument is that this is a jurisdictional rule. And because of that, you don't consider any of the equities. But in the alternative, if this court declines to determine that this rule is still jurisdictional, at minimum, it is a mandatory claims processing rule. And that the petition should be dismissed on that basis. But I think what Justice Ginsburg said a while ago is that when we have used that term in the past, what we've meant is that it's a mandatory claims processing rule. So it's a legal rule that you have to follow unless the other party forfeits the issue. There was no- Or unless there's a very good reason. There's some kind of extra special excuse that you have. But where there is a forfeiture and where that's the end of the matter, we can call it a mandatory claims processing rule or not, but you've forfeited it. So we believe that the rule is jurisdiction, because it has a statutory basis. Rule 4a5c, the 30-day limitation that is contained in Rule 4a5c was present in the rule and the statute when the rule was promulcated. And although the 30-day, the specific limiting language of 30 days is no longer in the statute, we do not believe that there was any intention by Congress to strip the rule of the jurisdictional nature that it enjoyed. But it was never in the statute with respect to a case like this. The only provision in the statute was when there was a failure to get notice of the entry of judgment. There was nothing in the statute covering a case where there was a reason other than failure. The statute was blank on that. It's no longer blank. It gives permission for an extension. But the way the pre-1991 statute read, it provided the district court's authority to extend the time to file a notice of appeal upon a showing of excusable neglect. Now, it's true. There was only one condition that Congress deemed to constitute excusable neglect in the prior 1991 statute, and that was if a party did not receive notice. But the idea and the concept that the 30-day, that 30-day limitation was promised on a showing of excusable neglect is still remained in the statute today. But what was the text of this statute? I thought it was clear that it only applied in the case of failure to receive notice of the entry of judgment. I'll read the text to you. The district court may extend the time for appeal not exceeding 30 days from the expiration of the original time here in prescribed upon a showing of excusable neglect. Based upon a failure of a party to learn of the entry of the judgment. So it was based upon so that was the only condition? That was the only condition. But the idea and the concept was you had to demonstrate excusable neglect. Now, certainly in the rule, what, you know, the rule did more for over time and evolved to take into account other things, good cause, for instance. And eventually, rule 4a6 came into being, which is what the 1991 amendments were conforming there too. But there is no evidence that any member of Congress ever criticized the 30-day limitation in rule 4a6. You disagree with the D.C. when this issue would be before the D.C. Circuit, the D.C. Circuit says the 30-day limit on extension appears nowhere in the U.S. code. And that is true. It doesn't appear in the U.S. code. The limiting 30 days is no longer in the U.S. code. That is correct. We believe that it was inadvertently omitted in the 1991 amendments. That's our position. Tell me. I didn't hear you. Is there any direct legislative history saying that it was inadvertent? No. It is not. And I think the issue that we have is the silence now informs the silence is informed by the... Where else have we ever given me your best authority for us reading into a statute omitted language? You know, I can't give you a precise case that comes up with a situation like this. But I think the history of this rule going back nearly a century that the deadline regarding notices of appeals have been treated as jurisdiction in the American Court for a century. If Congress intended to change the jurisdictional nature of the rule, it would have said so. And there is nothing in this legislative history that suggests Congress intended to do that. Well, there is a problem with that because it did change the rule fundamentally when it permitted the opening of a judgment for six months if you didn't receive notice of it. That's a fairly radical change from the norm. And so why would it be inappropriate to assume that Congress intended for a district court to exercise its discretion and judgment in deciding how much was a reasonable time for excusable or for good cause? So you look at the inconsistency that was established then. Right? If a district court could extend the time up to 14 days once a party who never received notice of the final order, the district court could extend the time to file that notice appeal for 14 days. Under the petitioner's theory, if the 30-day limitation was removed, the district court would have the authority to extend the time to file a notice of appeal as the Chief Justice articulated up to three years, a year. There is no limitation in the statute. That inconsistency is why we believe Congress and the Federal Administration has to be for good cause. It has to. So it's self-limiting in that way. It is your honor, but it is it is it is it is ambiguous and that's why we believe that history can inform us. So suppose there is a congressional statute which does set forth a jurisdictional rule and Congress wakes up one day and decides you know what we don't think that this rule should be jurisdictional anymore. How does it change that? Through legislation, Congress can change anything. Any statute? Yes. So Congress would presumably pass a piece of legislation which no longer included the rule, right? They could, but you would think that they would have done so. Especially in a situation like this, where? Well, that's what Congress did here, I guess. I mean, what else do you expect Congress to do if it changes its mind? I would expect them given the history of the deadline regarding notice of appeal to at least said that that's what they're going to do. Like we're taking away this jurisdictional rule and we really mean it. There was no, in this instance, there was no mention of rule 4156. There was no mention of the 30-day limitation. But at the end of the day, we get to the same place. If the court is not inclined to rule that rule 415C is jurisdictional, at minimum, it is a mandatory claims processing rule. In what way has your client been prejudiced by the seven circuits decision? I mean, other than not enforcing the rule, is there any way witnesses, documents, anything else that is different in the appeal on the merits in light of the fact that they got this extension? No, you're on it. I can't say that we have. Right. And, Mr. Stewart, if it isn't jurisdictional, one of the questions raised is whether you would have needed to file a cross appeal. Sure. And there's another circuit split on that question and two very fine opinions, one by Judge Hartz and another by Judge Sutton, disagreeing over that. Can you tell me why you don't think you needed to file a appeal yourself if you wish to challenge it at a district court order? Sure. We'll give that to normal course. Sure, Judge Gorsett. This court in the Jennings case described the instances where an appellate would be required to file a cross appeal. There are two instances. One, that the appellate is seeking to enlarge its own rights. We weren't doing that here because we'd won the case of some rejection. The other instance would be if you're seeking to lessen the rights of the appellant. We were not doing that either. To the extent, Mr. Hems. That's not exactly what you wanted to do is lessen the rights of the appellant by kicking the appellant out of court. To the extent, Ms. Haimer had any right, it was limited to the initial 30 days under rule 4A1. She would argue, I think, just to put her argument in the best light and let you respond to it is, I obtained this additional right from the district court of an extension of time, which allowed me to pursue this appeal in the court of appeals. Judge Sutton would say that is an extension of a new right by the district court that you wish to extinguish, and therefore need a notice of appeal. That's the line of reasoning he follows. What's wrong with that? So the problem with that reasoning is that the district court providing the additional time gave her some right. The district court didn't have the authority in the first place to give that time, and that's because of rule 4 and rule 26. Rule 4 says that a party has 30 days to file a notice of appeal. Rule 4A5C allows the district court to extend that period to an additional 30 days, but no more. And rule 26 says that a court has the authority to extend the time to comply with the rules with the exception of rule 4. So there was no opportunity for the district courts to provide any further days other than what is set forth in rule 4. So the court didn't have the authority to give her the time that it did. Ms. Hamer didn't have a right to file the notice of appeal when she did. That's why it's mandatory. There are no further questions. Thank you, counsel. Mr. Herstoff, ten minutes. Thank you. Just a couple of quick points. Regarding the argument that there is no forfeiture if the issue is raised in the merits brief. That argument rests on a misreading of contract. The contract held that there was a forfeiture where among other things the issue had not been raised in the brief. The contract did not say that any time it is raised in the merits brief then there is no forfeiture. Similarly, in Manrique, it was held that there was no forfeiture. But there, the first possible opportunity to address the issue was in the merits brief because the appellate there had no idea what the point was going to raise in there. Opening brief. What point in time do you think the issue was waived? The issue was waived when they said in the docketing statement twice that the appeal was timely. So not before that. Nothing occurred in the district court waived the. For a affirmative waver now, there was certainly forfeiture. When was it forfeited? It was forfeited not no later than 30 days after the district court granted the extent of time. So it wasn't forfeited on the day when the district court entered the order? No, no, Your Honor, I'm not arguing with that. It was because the order didn't preclude the filing of the notice of appeal prior to the expiration of the time in the order. That's right. No, we're certainly not arguing that there was a forfeiture based upon the one day period between the filing of the motion and the granting of the motion. So you think that the appeal we had on pain of forfeiture, they had an obligation to inform the other side and the court just prior to the running out of the time of, you know, you're going to have a problem here under the rule if you don't file your notice of the appeal right away. They had that obligation to do that. Did it have an obligation to do that if they wanted rule for a 5C to be enforced? They also forfeited by not appealing or cross appealing and didn't just wanted to address. How was that consistent with the adversary system? And this isn't the other side that did you have an attorney at that point? No, she was pro say at the time that the district court granted the motion for extension of time because the district court granted that along with the motion for withdrawal. So Miss Haimler proceeded pro say from then on. And so the appeal is the respondents here forfeited their right to rely on rule for a 5C by not objecting to the extension. They all are also to go to justice court such as point on the forfeited by failing to appeal or cross appeal. The respondents argue that their rights were not being enlarged because they got everything that they wanted from the district court summary judgment order. However, that focuses on the wrong order from the district court. The order granting the extension of time said that she had two months to extend out to file the notice of appeal two months extra. And here the respondents are seeking in essence a reversal of the district court's order granting the extension of time. And in order for the decision saying that she was not entitled to that extension of time, that is the order from which the appeal had to be taken was summary judgment for the defendant. That's the judgment, right? That's the district court's judgment on the merits, yes. And the appaley wants an affirmance of that judgment. Yes, they do. But by- That could be affirmed on the ground that summary judgment was proper. It could also be affirmed on the ground that the notice of appeal was untimely. Well, I respectfully submit that if down in the latter case it would not be an affirmance, it would just be a dismissal of the appeal. So what the respondents are seeking is not an affirmance. They're seeking an order and judgment from the appellate court saying that the district court's judgment is completely innocent. They're insulated from appellate review and in order for the appellate court to do that, they would need to reverse the district's courts order granting the extension of time. Well, that doesn't seem right to me. I mean, the relief they want is that they can't be sued, right? Or they win to say that the ground on which they get to that objective makes requires across appeal. I don't think that's right. Well, respectfully submit that the- what the respondents are seeking to do is to dismiss the appeal. So what they're seeking from the seventh circuit is not any kind of decision at all about whether the district court's judgment. Well, I don't think they care whether the seventh circuit says you win or they say that your opponents appeal is dismissed. They certainly might not- I might not care. I agree with that. However, if they're trying to get the appeal dismissed, that's lessening Miss Hamer's rights because without the respondents objecting to the extension of time, Miss Hamer's granted the right to appellate review, which is usually what any appellant has is the right to appeal a district's court's judgment. The reason why- Every time the party that wins in the district court wins on the merits in the district court also thinks that it has a jurisdictional argument they have to file across appeal. A jurisdictional argument? No, because the jurisdiction can be raised- All right. And a mandatory claims processing argument they have to file across appeal. If they're seeking to alter what the district court did, in other words, if they're trying to get the appellate court to rule that the district court was wrong in the way that they applied to claim processing rule, then yes, an appeal across appeal would be required. If there are no further questions, we respectfully request that the court reverse the seventh circuit's judgment and remain for consideration of Miss Hamer's appeal on the merits. Thank you. The case is submitted. Thank you, Council