Joshua Yount of Mayer Brown

The U.S. Court of Appeals for the Seventh Circuit's decision toward the end of last year in Groves v. United States, 941 F.3d 315 (7th Cir. 2019), is quite unusual. It repudiates a long-standing Seventh Circuit precedent regarding the timeliness of interlocutory appeals sought under 28 U.S.C. Section 1292(b). It disagrees with the unanimous case law on the subject from nine other circuits. And it does so even though neither party argued for that result. Yet the Groves decision drew nary a whisper of objection from any member of the panel hearing the appeal or any of the other Seventh Circuit judges. What explains the unusual result in Groves? The answer is recent Supreme Court rulings addressing the timeliness of other kinds of appeals. Guided by those rulings, Groves holds that the 10-day period for asking the court of appeals to accept a Section 1292(b) appeal is jurisdictional and cannot be restarted by a district court's re-entry of the order certifying issues for interlocutory appeal.

Groves arose out of a suit challenging an IRS tax penalty. After the district court rejected Mr. Groves' statute-of-limitations arguments, it certified the orders doing so for interlocutory review, as 28 U.S.C.Section 1292(b) permits. But a Section 1292(b) appeal cannot proceed until the court of appeals exercises its discretion to permit the appeal. And a court of appeals may not permit a Section 1292(b) appeal unless an "application is made to it within ten days after the entry of the order" containing the district court's certification. Mr. Groves therefore tried to email an application for review to the Seventh Circuit Clerk's Office on the tenth day after the certification order. A paralegal mistyped the email address, however, so the application was not received at that time. Two days later, the paralegal noticed the mistake and sent the application to the correct email address. The next day, Mr. Groves explained the situation to the district judge and persuaded him to reenter the certification order. Mr. Groves then refiled his application the following day.

Both parties argued that, even though Mr. Groves missed the original deadline for seeking review, the court of appeals could hear his appeal because the district court's reentry of the certification order restarted the 10-day application period under Nuclear Engineering v. Scott, 660 F.2d 241 (7th Cir. 1981). Mr. Groves additionally argued in the alternative that the deadline for Section 1292(b) applications is not jurisdictional and was waived by the government. The Seventh Circuit, in an opinion authored by Judge Barrett and joined by Judges Sykes and St. Eve, rejected both arguments and dismissed the appeal for lack of jurisdiction.

The opinion first addresses the argument that the 10-day deadline for Section 1292(b) applications is a waivable claim-processing rule rather than a nonwaivable jurisdictional limitation. Relying on Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13 (2017), the Court concluded that the 10-day deadline is jurisdictional because it "'governs the transfer of adjudicatory authority' from the district court." Statutes that limit the adjudicative authority of Article III courts are jurisdictional, the court explained, absent a clear statement to the contrary.  And Section 1292(b) is such a statute because it "speaks to the power of the court rather than to the rights or obligations of the parties."

The opinion then moves to the question of whether a district court can restart the 10-day Section 1292(b) application period by reentering its certification order. The court acknowledged that Nuclear Engineering allows such a maneuver. And it noted that nine other federal courts of appeals had issued similar rulings. Yet the court concluded that "intervening Supreme Court precedent has undermined" Nuclear Engineering. It principally relied on two precedents: Nutraceutical v. Lambert, 139 S. Ct. 710 (2019), which held that the deadline for seeking permission to appeal class certification rulings (a claim processing rule) is not subject to equitable tolling, and Bowles v. Russell, 551 U.S. 205 (2007), which held that a district court cannot extend the deadline for a notice of appeal by 17 days when the relevant statute allows a 14-day extension at most.

The Court viewed those precedents as dispositive because neither Section 1292(b) nor any other statute permits a district court or a court of appeals to extend the 10-day period to file a Section 1292(b) application. Without such a statutory provision, the court had to resort to "the basic principle that when a jurisdictional statute sets a firm deadline, courts have no authority to extend it." And a rigid deadline for Section 1292(b) applications makes sense, the court observed, because interlocutory appeals are exceptional and being unable to pursue one means only that an appeal must await final judgment.

For the court, the only remaining question was whether recertifying an order for interlocutory appeal should be treated like an impermissible extension of the 10-day Section 1292(b) application period. Reasoning from prior decisions that rejected attempts to restart appeal periods through reentry of collateral orders or final judgments, the court concluded that it could not maintain "the fiction that recertifying an order isn't the same thing as granting more time." The court therefore overruled Nuclear Engineering and held that if a Section 1292(b) "application is not made within ten days," the certified order "is no longer appealable" under Section 1292(b). Notably, however, the court took no position on "whether or to what extent substantive reconsideration of a previously certified order might allow recertification to restart the clock."

In the end, the takeaway from Groves is that careful attention to the details of properly filing appeal papers before the applicable deadline is more important than ever.

Josh Yount is a partner in Mayer Brown's Chicago office and a member of the firm's Supreme Court and appellate practice.