Submitted April 10, 2019 [*]
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:17-cv-6807 -
Rebecca R. Pallmeyer, Judge.
Barrett, Brennan, and Scudder, Circuit Judges.
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.
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
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.
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.
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.
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
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.