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Groves v. United States

United States Court of Appeals, Seventh Circuit

October 25, 2019

Philip G. Groves, Plaintiff-Appellant,
United States of America, Defendant-Appellee.

          Argued December 3, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:16-cv-2485 - Gary Feinerman, Judge.

          Before Sykes, Barrett, and St. Eve, Circuit Judges.

          Barrett, Circuit Judge.

         When a 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 jurisdiction.


         Philip 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.

         The 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.

         Groves 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.

         Both 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.


         The 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.

         Despite 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 jurisdictional.

         Groves 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)).[1] 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 ยง 1292(b) does, the default runs the ...

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