Philip G. Groves, Plaintiff-Appellant,
United States of America, Defendant-Appellee.
December 3, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:16-cv-2485 -
Gary Feinerman, Judge.
Sykes, Barrett, and St. Eve, Circuit Judges.
Barrett, Circuit Judge.
district court certifies an order for review before final
judgment, parties have only ten days to petition us to hear
the interlocutory appeal. Decades ago, we provided a way to
circumvent that deadline: district courts could reenter or
recertify their orders, restarting the clock, whenever doing
so would further the purpose of the interlocutory review
statute. But more recent Supreme Court cases call that
workaround into question. The Court has emphasized-as
recently as a few months ago-that federal courts have no
authority to read equitable exceptions into fixed filing
deadlines. In light of the Court's precedent, we conclude
that we were wrong to hold that district courts can extend
the ten-day window by simply reentering or recertifying their
orders. We therefore dismiss this appeal for lack of
Groves is an accountant who allegedly organized, sold, and
promoted abusive tax shelters related to distressed Chinese
debts in 2005. Ten years later, the IRS assessed a tax
penalty against him for this behavior. Groves sued the
government, arguing (among other things) that the catch-all
five-year statute of limitations for civil penalties, found
in 28 U.S.C. § 2462, applied to the assessment against
him-and thus that the IRS acted too late.
district court concluded that § 2462 didn't apply,
so in May 2017 it granted the government's motion to
strike Groves's statute-of-limitations defense; in July,
it denied Groves's motion for judgment on the pleadings
for the same reasons. But because it believed that the orders
satisfied the standard for immediate appeal provided in 28
U.S.C. § 1292(b), the court certified the orders for
interlocutory review on August 8th.
had the district court's permission to appeal, but §
1292(b) also required him to seek permission from this court
within ten days of the district court's certification. He
attempted to obtain our permission on August 18th, the tenth
day after the district court's certification order, by
emailing an application to appeal to the Seventh Circuit
Clerk's Office. But a paralegal mistyped the email
address, so the email was not delivered. An automated message
noting the failure, sent to the paralegal within minutes,
landed in a spam folder. The paralegal discovered that
notification on Sunday, August 20th, and emailed the
application to the correct address that day. On August 21st,
Groves informed the district court of the mix-up and asked it
to recertify its orders to restart the ten-day clock. The
court complied, entering an otherwise identical second order
certifying its May and July orders for interlocutory appeal.
Groves refiled his application the next day, and we
provisionally granted it.
parties argue that we have jurisdiction to hear this appeal
even though Groves missed the initial deadline. The
government, consistent with the position we took in
Nuclear Engineering Co. v. Scott, maintains that
§ l292(b)'s deadline is jurisdictional but that the
statute allows a district court to recertify an order in
order to reset the clock. See 660 F.2d 241 (7th Cir.
1981). Groves likewise urges us to adhere to Nuclear
Engineering, but he also advances an alternative
argument: he maintains that § l292(b)'s ten-day
deadline is not jurisdictional, but rather a
claim-processing rule that the government has waived here.
general rule is that "appellate review must await final
judgment." Nutraceutical Corp. v. Lambert, 139
S.Ct. 710, 716 (2019). But when a district court determines
that one of its orders "involves a controlling question
of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation," it can say so in the order, enabling the
disappointed litigant to ask the court of appeals to review
the order immediately. 28 U.S.C. § 1292(b). The court of
appeals has discretion to permit the appeal "if
application is made to it within ten days after the entry of
the order." Id. A district court can include
the certification in the original order or add it afterward
by amendment; in the latter circumstance, "the time to
petition runs from entry of the amended order." Fed. R.
App. P. 5(a)(3). In other words, the clock does not start
until the litigant is actually authorized to file a petition.
Groves's argument to the contrary, the ten-day deadline
is not a claim-processing rule. The Supreme Court has drawn a
bright line: "If a time prescription governing the
transfer of adjudicatory authority from one Article III court
to another appears in a statute, the limitation is
jurisdictional; otherwise the time specification fits within
the claim-processing category." Hamer v.
Neighborhood Hous. Sews, of Chi., 138 S.Ct. 13, 20
(2017) (citations omitted). Section 1292(b) is jurisdictional
because it "govern[s] the transfer of adjudicatory
authority" from the district court, which issued the
order, to the court of appeals, which reviews it.
Id. Under a straightforward application of
Hamer, § l292(b)'s time bar is
resists this conclusion by arguing that no statutory deadline
is jurisdictional unless Congress clearly says so. And he
maintains that "Congress did [nothing] 'special'
to suffuse the ten-day deadline to petition for permission to
file an interlocutory appeal with jurisdictional
significance." Groves Supp. Br. at 12. But Groves's
premise-that the jurisdictional status of a deadline always
depends on a clear-statement rule-is mistaken. The
clear-statement rule applies only when a time limit appears
in a statute that does not govern an Article III
court's adjudicatory authority. See id. at n.9
("In cases not involving the timebound transfer of
adjudicatory authority from one Article III court to
another, we have additionally applied a clear-statement
rule ...." (emphasis added)). In that circumstance, the
clear-statement rule helps the court determine whether
Congress has exercised its power "to attach the
conditions that go with the jurisdictional label to a rule
that we would prefer to call a claim-processing rule."
Henderson, 562 U.S. at 435; see also Hamer,
138 S.Ct. at 20 n.9. But when a time limit appears in a
statute that addresses an Article III court's
adjudicatory authority, as § 1292(b) does, the default
runs the ...