May 15, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. On Remand from the
Supreme Court of the United States. No. 12 C 10150 -
Rubén Castillo, Chief Judge.
Easterbrook, Sykes, and Barrett, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
Hamer worked at Fannie Mae's Mortgage Help Center from
2010 to 2012. Fannie Mae contracted with Neighborhood Housing
Services of Chicago (Hamer's employer) to run the Center
but maintained the right to remove individual employees.
After Hamer's application for a promotion was denied and
she was removed from the Center, she sued both Neighborhood
Housing and Fannie Mae for discrimination and retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17, and the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621-34. The district
court granted summary judgment in the defendants' favor,
and Hamer appealed the retaliation claims.
statute requires notices of appeal to be filed within thirty
days after entry of judgment but provides that district
courts may "extend the time for appeal upon a showing of
excusable neglect or good cause." 28 U.S.C. §2107.
This statute does not set a limit on extensions' length,
but the rule implementing the statute provides that
"[n]o extension under this Rule 4(a)(5) may exceed 30
days after the prescribed time or 14 days after the date when
the order granting the motion is entered, whichever is
later." Fed. R. App. P. 4(a)(5)(C).
September 14, 2015, the district court entered summary
judgment in favor of defendants. On October 8 Hamer's
counsel submijed a motion to withdraw and to extend the time
for appeal by 60 days (to December 14), to give Hamer time to
acquire new counsel. The district court granted the motion,
despite Rule 4(a)(5)(C), and Hamer filed her notice of appeal
pro se on December 11-within the time erroneously
allowed but outside the maximum under Rule 4(a)(5)(C). None
of the litigants appears to have given any thought to the
violation of Rule 4 until this court, on review of the
docketing statements, ordered the parties to submit
jurisdictional memoranda on the timeliness issue.
court dismissed Hamer's appeal, concluding that the time
limit imposed by Rule 4(a)(5)(C) is jurisdictional. 835 F.3d
761 (7th Cir. 2016). The Supreme Court vacated that decision,
holding that statutory time limits are jurisdictional but
that those imposed by rule are not-though they remain
mandatory if properly invoked. 138 S.Ct. 13 (2017). See also
Bowles v. Russell, 551 U.S. 205 (2007). We must now
decide whether defendants properly invoked Rule 4(a)(5)(C)
and, if not, must reach the merits.
contends that the defendants may not now challenge her appeal
as untimely because they failed either to appeal from the
district court's order granting the extension or to
cross-appeal from the judgment. An appeal is necessary when a
party seeks to attack the judgment in a way that either
expands its own rights or narrows the rights of its opponent.
United States v. American Railway Express Co., 265
U.S. 425, 435 (1924); Massachusetts Mutual Life Insurance
Co. v. Ludwig, 426 U.S. 479 (1976); Robert L. Stern,
When to Cross-Appeal or Cross-Petition-Certainty or
Confusion?, 87 Harv. L. Rev. 763 (1974). Defendants are
not seeking to alter the judgment, so they did not need to
appeal. This conclusion aligns us with the Tenth Circuit,
United States v. Madrid, 633 F.3d 1222 (10th Cir.
2011), although the Third and Sixth Circuits have held
otherwise. Amatangelo v. Donora, 212 F.3d 776 (3d
Cir. 2000); United States v. Burch, 781 F.3d 342
(6th Cir. 2015). Our conclusion also is in line with the
Supreme Court's rule that an appellee seeking to defend a
judgment "may, without taking a cross-appeal, urge in
support of [it] any matter appearing in the record, although
his argument may involve an attack upon the reasoning of the
lower court or an insistence upon matter overlooked or
ignored by it." American Railway Express, 265
U.S. at 435.
Hamer's argument that defendants forfeited the timeliness
issue by not protesting in the district court likewise goes
nowhere. Because the district judge granted the motion for
extension immediately, defendants could not oppose it before
the judge acted. And it is never necessary to remonstrate
with a judge after an order has been entered. Motions for
reconsideration are discretionary, not obligatory. See
Fed.R.Civ.P. 46 ("A formal exception to a ruling or
order is unnecessary.").
contention that the defendants waived any challenge to the
timeliness of Hamer's appeal by saying in their docketing
statement that the notice of appeal was "timely"
requires more discussion. Under the heading "Appellate
Court Jurisdiction", the docketing statement declares
that "Plaintiff-Appellant filed a timely Notice of
Appeal" and under the heading "The Date of Entry of
the Judgment Sought to be Reviewed" that
"Plaintiff-Appellant timely filed a Notice of
Appeal". Defendants argue that language in docketing
statements cannot waive or forfeit a right and that, by
addressing the timeliness issue-in response to this
court's order-before the merits, they have preserved the
claim-processing rules, "[i]f properly invoked, …
must be enforced, but they may be waived or forfeited."
138 S.Ct. at 17. Since the Supreme Court's clarification
that time limits imposed by federal rules that do not have a
statutory basis are claim-processing rules, Kontrick v.
Ryan, 540 U.S. 443 (2004), this court has held that the
limit in Rule 4(b) for criminal appeals will not be enforced
if waived. See United States v. Neff, 598 F.3d 320,
323 (7th Cir. 2010). Treating timeliness under Rule
4(a)(5)(C) identically respects "the principle of party
presentation so basic to our system of adjudication."
Arizona v. California, 530 U.S. 392, 413 (2000). See
also Greenlaw v. United States, 554 U.S. 237, 243-44
found scant authority on docketing statements in general, and
we have not located any authority from any circuit on whether
representations within docketing statements can constitute
waivers. Defendants point to local rules and cases from other
circuits that characterize docketing statements as
preliminary, nonbinding documents. As defendants observe,
however, "a docketing statement is a creature of a
court's local rules," and this court is not bound by
other courts' pronouncements on the effect of docketing
statements that differ from ours. Many courts of appeals
require docketing statements, but the Seventh Circuit may be
unique in requiring them to take the form of prose paragraphs
rather than responses to a printed form.
statements serve several important functions in this court.
They form part of the "short record" that senior
court staff reviews "[i]n an effort to uncover
jurisdictional defects very early in the appellate
process". See Practitioner's Handbook for
Appeals to the United States Court of Appeals for the Seventh
Circuit 19 (2017 ed.). The court also uses docketing
statements to determine "whether an appeal is related to
other appeals, where an incarcerated party is housed, and who
current public officials are in official capacity
suits". Id. at 119. We require docketing
statements to contain all information that Fed. R. App. P. 28
requires in jurisdictional statements. Circuit R. 3(c).