April 24, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12 C 8571 -
Andrea R. Wood, Judge.
Bauer, Easterbrook, and Kanne, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
March 31, 2016, when this suit was three and a half years
old, the district court entered an order granting summary
judgment to defendants "[f]or the reasons stated in the
Memorandum Opinion and Order to follow". More than 16
months passed before the judge released her opinion, 2017
U.S. Dist. Lexis 129182 (N.D. Ill. Aug. 15, 2017), and
plaintiff appealed that day. A judgment under Fed.R.Civ.P. 58
was entered on August 16.
appeal came many months too late under Fed. R. App. P.
4(a)(7)(A)(ii), which says that a judgment is deemed to be
entered on the earlier of the Rule 58 judgment or
150 days after a dispositive order is entered on the civil
docket. Until Rule 4(a)(7)(A)(ii) was adopted in 2002 the
losing side always could wait for the entry of the formal
judgment. See United States v. Indrelunas, 411 U.S.
216 (1973); Carter v. Hodge, 726 F.3d 917, 919-20
(7th Cir. 2013). The new rule supersedes Indrelunas
by deeming the judgment to have been entered 150 days after a
dispositive order that does not amount to a proper judgment.
district judge who announces a final decision yet postpones
issuing the opinion sets a trap for the losing side, because
a plan to provide an explanation does not delay the date of
decision. See United States v. Bradley, 882 F.3d
390, 394 (2d Cir. 2018). Most litigants who represent
themselves, and many lawyers, are unaware of Rule
4(a)(7)(A)(ii) and think that they can wait for the entry of
judgment. Litigants can protect themselves-for example, the
loser may file a notice of appeal and ask the court of
appeals to defer briefing until the district court has
released its opinion. But judges should not expose litigants
to the risk that they will miss the need for self-protective
steps. See, e.g., Otis v. Chicago, 29 F.3d 1159,
1163, 1167-68 (7th Cir. 1994) (en banc). Except when there is
a need for speedy announcement of the outcome, the opinion
should accompany the decision. This is not a suit in which
rapid decision was essential, so a deferred opinion was
unjustified. And when there is a justification for
announcing a decision in advance of an opinion, issuing the
opinion should be the district judge's top priority.
Deferring the opinion until after the time allowed by Rule
4(a)(7)(A)(ii) is never appropriate, as it can spell disaster
for a litigant not versed in the appellate rules.
happens, however, this appeal has been saved by the fact that
until recently everyone missed the significance of
only jurisdictional requirement is the need for an appeal
within 30 days of the judgment or an extension. See 28 U.S.C.
§2107; Bowles v. Russell, 551 U.S. 205 (2007).
Hamer v. Neighborhood Housing Services of Chicago,
138 S.Ct. 13 (2017), tells us that supplemental or
implementing provisions in the Rules of Appellate Procedure
are not jurisdictional. Hamer concerned Rule
4(a)(5)(C); its holding applies equally to Rule
the Rules of Appellate Procedure are not jurisdictional, they
remain mandatory. We must apply them if properly invoked. The
"properly invoked" qualifier is important, for a
litigant may waive or forfeit the benefit of these rules. We
held on remand in Hamer that the appellees waived
the benefit of Rule 4(a)(5)(C) by representing in their
docketing statement that the appeal was timely. Hamer v.
Neighborhood Housing Services of Chicago, No. 15-3764
(7th Cir. July 30, 2018), slip op. 4-8. Appellees in this
case did not do that, but they came close-close enough to
forfeit their rights under Rule 4(a)(7)(A)(ii).
jurisdictional section of appellees' brief in this court
says (some citations omitted):
On March 31, 2016, the district court issued a minute order
granting defendants' motion for summary judgment on all
of Walker's claims. On August 15, 2017, the district
court issued its memorandum opinion and order setting forth
the reasons for its grant of summary judgment in
defendants' favor. On the same day, Walker filed her
notice of appeal. The judgment was entered on August 16,
2017. A premature notice of appeal is treated as filed on the
date the judgment is entered. Fed. R. App. P. 4(a)(2). This
court has jurisdiction over this appeal from the final
decision of the district court disposing of all claims
against all parties under 28 U.S.C. § 1291.
treating the appeal as early rather than late, appellees
relinquished the benefit of Rule 4(a)(7)(A)(ii).
the appellees filed their brief, this court alerted the
parties to a problem with the appeal's timing. Once we
did so, appellees filed a supplemental jurisdictional
statement asserting that the appeal is late. And so it is-but
because, under Hamer, the benefit of Rule 4 may be
waived or forfeited, appellees' belated invocation of the
Rule is unavailing. Indrelunas shows that the appeal
is jurisdictionally ...