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Nestorovic v. Metropolitan Water Reclamation District of Greater Chicago

United States Court of Appeals, Seventh Circuit

June 11, 2019

Slobodanka Nestorovic, Plaintiff-Appellant,
v.
Metropolitan Water Reclamation District of Greater Chicago, Defendant-Appellee.

          Submitted April 10, 2019 [*]

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:17-cv-6807 - Rebecca R. Pallmeyer, Judge.

          Before Barrett, Brennan, and Scudder, Circuit Judges.

          PER CURIAM.

         This case turns on the requirement in 28 U.S.C. § 2107(c) that a litigant show excusable neglect or good cause to file an appeal after the deadline for doing so has passed. The district court dismissed Slobodanka Nestorovic's discrimination claims against her employer and the deadline to appeal expired without Nestorovic appealing. Nestorovic then moved for an extension of time to file a notice of appeal, and the district court granted her motion without making any finding as to whether Nestorovic had made the required showing that excusable neglect or good cause justified missing the original deadline. Because this showing is required by an act of Congress-§ 2107(c), in particular-the necessity for Nestorovic to have shown excusable neglect or good cause serves as a prerequisite to our having appellate jurisdiction. As the record below contained no evidence of excusable neglect or good cause for Nestorovic's tardiness, we dismiss Nestorovic's appeal for lack of jurisdiction.

         I

         In 2015, the Metropolitan Water Reclamation District of Greater Chicago hired Slobodanka Nestorovic as an assistant civil engineer. Nestorovic initially did well in the position, but later lost her job for allegedly poor performance. Nestorovic responded by filing a discrimination charge with the Equal Employment Opportunity Commission. She then received permission to sue and brought sex and disability discrimination claims under Title VII of the Civil Rights Act and the Americans with Disabilities Act against the Water Reclamation District.

         The district court dismissed her case on May 16, 2018 for failure to comply with Title VII's filing requirements. Nestorovic then had 30 days to file a notice to appeal-until June 15. See28U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). She missed this deadline.

         Instead, on July 13, Nestorovic asked the district court to extend her time to appeal. Section 2107(c) allows such an extension in certain circumstances: "The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause." Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure implements § 2107(c) and likewise allows the district court to extend the time to file an appeal if a party shows excusable neglect or good cause and moves for the extension no later than 30 days after the appeal deadline has expired.

         Nestorovic filed her motion to extend the time to appeal within the 30 days permitted by § 2107(c). Although timely, her motion offered little to explain what excusable neglect or good cause warranted the requested extension. Nestorovic explained only that she was "actively searching for attorneys willing to take the case on contingency" and had been "advised very recently that [prospective] counsel could not file an appeal before reviewing filings to date, which would take several weeks." The district court granted the requested extension of time, saying only that the extension was warranted "in these circumstances." The district court also construed Nestorovic's motion as a notice of appeal.

         Nestorovic contends in her jurisdictional statement that her appeal is timely because she received an extension of time from the district court. For its part, the Water Reclamation District filed a brief opposing Nestorovic's appeal on the merits while agreeing that the appeal was timely. After we questioned the completeness of its jurisdictional statement, however, the Water Reclamation District argued for the first time in an amended jurisdictional statement that the appeal must be dismissed because Nestorovic had not shown excusable neglect or good cause to justify the extension of time to appeal.

         The question before us, then, is whether the showing of excusable neglect or good cause required under § 2107(c) is jurisdictional, and whether Nestorovic made that showing in the district court.

         II

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