Commercial Litigation and Arbitration

Extension of Time to File Appeal — 14 Day Period Jurisdictional

Federal Rule of Appellate Procedure 4(a)(6) implements 28 U.S.C. §2107(c), permitting the District Court to reopen and extend the time within which an appeal may be filed under certain limited circumstances. If the District Judge grants the putative appellant’s motion, the ‛district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered“ (F.R.A.P. 4(a)(6)). The appellant in Bowles v. Russell, 2007 U.S. LEXIS 7721 (U.S. June 14, 2007), was too successful. The District Court granted his motion but allowed him 17 days within which to file his appeal. The appellant then actually had the audacity to rely on this order, and filed his appeal on day 16, rather than day 14 (as required by the Rule and the statute). Yesterday, the Supreme Court held, 5 to 4, that the appeal was untimely because the District Court lacked the power to extend the 14-day period stated in the Rule and the statute — a period the Supreme Court labeled ‛jurisdictional.“ The Court’s result is understandable (‛Jurisdictional treatment of statutory time limits makes good sense. Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider. Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them.“). But it is also harsh. The only safe way to practice, post-verdict, post-judgment, or post-appealable order is to operate on the premise that every time period is jurisdictional — and to meet it.

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