GEORGIA-PACIFIC CONSUMER PRODUCTS LP; FORT JAMES CORPORATION; GEORGIA-PACIFIC LLC v. NCR CORPORATION, WEYERHAEUSER COMPANY, INTERNATIONAL PAPER COMPANY
No. 18-1806
United States Court of Appeals for the Sixth Circuit
Decided and Filed: July 14, 2022
On Petition for Rehearing En Banc.
22a0154p.06
Before: MOORE, KETHLEDGE, and DONALD, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
United States District Court for the Western District of Michigan at Grand Rapids; No. 1:11-cv-00483—Robert J.
COUNSEL
ON PETITION FOR REHEARING EN BANC: Michael R. Shebelskie, Douglas M. Garrou, George P. Sibley, III, J.
ORDER
The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing, has addressed the issues therein in an Appendix to the original panel opinion, and has concluded that rehеaring is unnecessary. Upon circulation of the petition and the Appendix to the full court, no judge has requested a vote on the suggestion for rehearing en banc.
Therefore, the petition is denied.
APPENDIX ON PETITION FOR REHEARING
GP has petitioned for rehearing en banc on one issue and panel rehearing on another. We DENY the petition and add the following as an Appendix to the original opinion.
I. Weyerhaeuser Should Have Cross-Appealed, But GP Forfeited the Argument
In its petition for rehearing en banc, GP argues that Weyerhaeuser should have cross-appealed in order to benefit from our ruling against GP on the statute-of-limitations issue. GP Pet. at 3–11. Weyerhaeuser developed a substantial argument in its appellee brief explaining that the statute of limitations barred GP‘s claim against Weyerhaeuser as well as against IP and also adoptеd by reference the stretch of IP‘s brief that involved the statute of limitations. Weyerhaeuser Br. at 37–43. But to secure affirmative relief, Weyerhaeuser should have filed a cross-appeal. Absent a cross-appeal, an appellee “may not ‘attaсk the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.‘” El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) (quoting United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)); see also Jennings v. Stephens, 574 U.S. 271, 276 (2015); United States v. Burch, 781 F.3d 342, 344 (6th Cir. 2015) (Order). Because Weyerhaeuser asked this court to “apply [a favorable] statute-of-limitations ruling to” provide relief beyond the district court‘s determination, Weyerhаeuser Br. at 41, Weyerhaeuser sought to enlarge its own rights, and a cross-appeal should have been taken.
Weyerhaeuser‘s failure to cross-appeal does not end our analysis, however. Generally, an argument not raised in an appellate briеf or at oral argument is forfeited, and may not be raised for the first time in a petition for rehearing. United States v. Huntington Nat‘l Bank, 574 F.3d 329, 331 (6th Cir. 2009); Costo v. United States, 922 F.2d 302, 302–03 (6th Cir. 1990) (Order). That is what happened here: GP did not object to Weyerhaeuser‘s argument in an appellate brief1 or at oral argument. The specter of forfeiture thus hаunts GP‘s petition for rehearing en banc.
GP‘s failure to raise earlier in the proceedings this issue of the asserted need for a cross-appeal will not matter, however, if we conclude that
But times have changed. “Over the last twenty years, one Supreme Court decision after another instructs the lower courts to be more judicious about labeling deadlines jurisdictional.” Gunter v. Bemis Co., 906 F.3d 484, 492–93 (6th Cir. 2018). This is because the Supreme Court has reсognized that “Only Congress may determine a lower federal court‘s subject-matter jurisdiction.” Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017) (quoting Kontrick v. Ryan, 540 U.S. 443, 452 (2004)). As a result, “a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.” Id. “[R]ules that seek to promote the orderly progress оf litigation by requiring that the parties take certain procedural steps at certain specified times” qualify as mandatory claim-processing rules, and although they “promote the orderly progress of litigation,” they may be forfeited if no party raises them. Henderson, 562 U.S. at 435; see id. at 434. Thus, “When Congress passes a statute that unambiguously restricts the adjudicatory authority of the federal courts, the restriction will be treated as jurisdictional. Otherwise, the restriction will be treated as mandatory but not jurisdictional.” Maxwell v. Dodd, 662 F.3d 418, 421 (6th Cir. 2011).
Our court recently applied this new regime to the сross-appeal rule. In Gunter, we evaluated whether
Gunter and the Supreme Court‘s recent case law convince us that the narrowing of the term “jurisdictional” has abrogated our court‘s earlier cases holding that the cross-appeal requirement goes to our jurisdiction. See Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009). These earlier decisions improperly “held jurisdictional a [requirement] specified in a rule, not in a statute.” Hamer, 138 S. Ct. at 17. As a result, we hold that compliance with Rule 4(a)(3)‘s cross-appeal requirement, although mandatory, is not jurisdictional. See 16A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3904 (5th ed. 2022) (embracing this approach); Mathias, 876 F.3d at 471–72.
There is one distinction between our case and Gunter worth noting. In Gunter, a party cross-appealed outside of
True, the Supreme Court has repeatedly discussed the importance of the cross-appeal requirement, often in the loftiest of terms. Greenlaw v. United States, 554 U.S. 237, 244–45 (2008) (“This Court, from its earliest years, has recognized that it takes a cross-appeal to justify a remedy in favor of an appellee.“); El Paso Nat. Gas, 526 U.S. at 480 (“[I]n more than two centuries of repeatedly endorsing the cross-apрeal requirement, not a single one of [the Supreme Court‘s holdings] has ever recognized an exception to the [cross-appeal] rule.“). But although the Court has defined the requirement in such terms, it has also taken pains, time and time again, to make clear that it has not viewed the requirement as jurisdictional. Greenlaw, 554 U.S. at 245; El Paso Nat. Gas, 526 U.S. at 480. To the contrary, the Court in Greenlaw acknowledged that some of its precedent support interpreting the requirement as non-jurisdictional. 554 U.S. at 245 (citing Langnes v. Green, 282 U.S. 531, 538 (1931)).
The Supreme Court‘s decision in Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), also does not change our analysis. There, the Court explained that Rules 3 and 4 comprised “a single jurisdictional threshold,” and instructed lower courts that they “may not waive the jurisdictional requirements of Rules 3 and 4.” Id. at 315, 317. But like our holdings in Ford Motor Credit Co., 717 F.2d at 962–63, and Francis v. Clark Equipment, 993 F.2d at 552–53, this statement predates the Supreme Court‘s modern project of reining in the use of the word “jurisdictional.” Torres, which concerned the filing of an initial notice of appeаl and not a notice of cross-appeal, based its jurisdictional conclusion on “the mandatory nature of the time limits contained in Rule 4” and the Advisory Committee Note accompanying Rule 3. 487 U.S. at 315. We adhere today to subsequent Supreme Court decisions clarifying that “mandatory . . . time limit[s]” in the Federal Rules create jurisdictional requirements only where those limits derive from acts of Congress. Hamer, 138 S. Ct. at 16–17.
GP cites Burch, 781 F.3d at 344-45, for the proposition that “cross-appeals are indistinguishable from appeals . . . for purposes of the jurisdictional analysis.” GP Pet. at 5 n.7. GP аrgues that because the Supreme Court has held that a notice of appeal is jurisdictionally required under Rule 4 and
Finally, we recognize that two recent unpublished panel opinions in our circuit
The cross-appeal rеquirement is not jurisdictional, making it a claim-processing rule forfeitable when no party raises it. GP did not raise Weyerhaeuser‘s failure to file a cross-appeal at the proper time, and we will not consider the argument now. See United States v. Montgomery, 969 F.3d 582, 583 (6th Cir. 2020) (Order on panel reheаring). “Because Weyerhaeuser is in the same factual position as IP for purposes of the statute-of-limitations issue,” Georgia-Pacific Consumer Prods. LP v. NCR Corp., 32 F.4th 534, 547 (6th Cir. 2022), and because GP was on notice that Weyerhaeuser sought to benefit from a ruling benefitting IP, we granted Weyerhaeuser relief to “coherent[ly] dispos[e] of [the] entire case.” 16A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3904 (5th ed. 2022).
As a final note, we do not denigrate or dispute the cross-appeal requirement‘s utility, importance, or mandatory nature (when properly invoked). This case presents unusual circumstances: “Th[e] distinction between jurisdictional and mandatory rules will not matter in many cases. After all, a court generally must enforce a mandatory rule (just as much as a jurisdictional one) when a party properly invokes it.” Saleh v. Barr, 795 F. App‘x 410, 424 (6th Cir. 2019) (Murphy, J., concurring); see also Cuevas-Nuno v. Barr, 969 F.3d 331, 334 n.2 (6th Cir. 2020). All GP had to do was object that Weyerhaeuser had not preserved a cross-appeal prior to the panel issuing its decision, either in a supplemental brief or at oral argument,5 and we would have likely enforced the claim-processing rule.
II. We Adhere to Our Decision Not to Rule on the Secured Creditor Defense
GP also fаults the panel‘s original opinion for failing to address IP‘s argument that IP fell within CERCLA‘s secured-creditor exception, and seeks panel rehearing on the issue. GP Pet. at 11–15. We deny the motion for panel rehearing. IP‘s brief presented the secured-creditor issue as an “Alternаtive[]” avenue through which to reverse the district court‘s decision. IP Br. at 64. GP never, in its briefing or at oral argument, disputed IP‘s presentation of the issue as an alternative one. As a result, we adhere to our conclusion in the panel opinion that, having resolved one оf the alternative bases for reversal, we need not consider the other.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk