PHILIP G. GROVES v. UNITED STATES OF AMERICA
No. 17-2937
United States Court of Appeals, Seventh Circuit
October 25, 2019
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2937
PHILIP G. GROVES,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-2485 — Gary Feinerman, Judge.
____________________
ARGUED DECEMBER 3, 2018 — DECIDED OCTOBER 25, 2019
____________________
Before SYKES, BARRETT, and ST. EVE, Circuit Judges.
BARRETT, Circuit Judge. When a district court certifies an
оrder 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
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.
I.
Philip Groves is an accountant who allegedly organized,
sold, аnd 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
thus that the IRS acted too late.
The district court concluded that
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 ordеrs satisfied the
standard for immediate appeal provided in
on August 8th.
Groves had the district court’s permission to appeal, but
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
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 tо 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
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
but rather a claim-processing rule that the government
has waived here.
II.
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 оpinion 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
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.”
original order or add it afterward by amendment; in the latter
circumstance, “the time to petition runs from entry of the
amended order.”
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. Servs. of Chi.,
138 S. Ct. 13, 20 (2017) (citations omitted).
jurisdictional because it “govern[s] the transfer of adjudicatоry
authority” from the district court, which issued the order,
to the court of appeals, which reviews it. Id. Under a straightforward
application of Hamer,
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 jurisdiсtional
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
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
runs the other way—the limit is presumptively jurisdictional.
That presumption is consistent with the “longstanding treatment
of statutory time limits for taking an appeal as jurisdictional”—a
principle that the Court emphasized in Bowles v.
Russell, 551 U.S. 205, 210 (2007). See also Hamer, 138 S. Ct. at 20.
Groves has a backup argument. Even if the clear-statement
rule is narrower in scope, he says, it applies here because
authority” from the district court to the court of appeals.
See Hamer, 138 S. Ct. at 20. A petition for permissive appeal
does not stay the proceedings in the district court, and the district
court retains jurisdiction ovеr the case even if the petition
Notes
the clear-statement rule to statutes that do not address the adjudicatory
authority of an Article III court. See, e.g., United States v. Kwai Fun
Wong, 135 S. Ct. 1625 (2015) (the FTCA’s statute of limitations); Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145 (2013) (a deadline for healthcare providers
to file an administrative appeal for Medicare reimbursement); Hen-
derson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (a time limit for a
veteran to appeal the administrative denial of benefits). These cases therefore
do not help Groves.
F.2d 708, 711 (7th Cir. 1976) (“An appeal from an interlocutory
order does not divest the trial court of jurisdiction.”). Thus,
Groves says, the statute does nоt actually “transfer” jurisdiction
to the court of appeals. And without such a transfer, he
contends, the statute’s deadline falls in the “claim processing”
category unless Congress expressly says otherwise.
This argument is meritless. For one thing,
govern the transfer of adjudicatory authority to the courts of
appeals; it empowers the court of appeals to review a district-
court order, and once that order is on appeal, the district court
can no longer modify it. See Aljabri v. Holder, 745 F.3d 816, 820
(7th Cir. 2014) (“The retained jurisdiction [under
the district court to proceed with other aspects of the
case; it does not mean that the district court can continue to
modify the same order that is up on interlocutory appeal.”).
But in any event, Groves puts far too much weight on Hamer’s
use of the word “transfer.” Hamer does not suggest that the
jurisdictional status of a deadline (or other limitation) turns
on the details of a transfer—for example, whether the transferred
authority encompasses the whole case or a single order.
Hamer, synthesizing a line of precedent, makes clear that the
relevant inquiry is whether the time limit appears in a jurisdictional
statute—one that “speak[s] to the power of the court
rather than to the rights or obligations of the parties.” See Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 (2010) (citations
omitted). If the limit appears in a statute that speaks to the
power of the court, it is a limitation on the power of the court.
See In re Sobczak-Slomczewski, 826 F.3d 429, 432 (7th Cir. 2016)
(explaining that a timeliness condition located in a jurisdiction-granting
statute is jurisdictional); see also Hamer, 138 S. Ct.
at 20; Bowles, 551 U.S. at 210. If it appears in a statute that
rule unless Congress says otherwise. See Kwai Fun
Wong, 135 S. Ct. at 1633 (“This Court has often explained that
Congress’s separation of a filing deadline from a jurisdictional
grant indicates that the time bar is not jurisdictional.”);
Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006) (concluding
that a statutory threshold that “appears in a separate provision
and does not speak in jurisdictional terms or refer in any
way to the jurisdiction of the district courts” was not jurisdictional
in nature (citation omitted)).
There can be no doubt that
power of the court rather than to the rights or obligations of
the parties.” See Reed Elsevier, 559 U.S. at 160; see also Tidewater
Oil Co. v. United States, 409 U.S. 151, 168 (1972) (“[Section]
1292(b) was intended to establish jurisdiction in the courts of
appeals to review interlocutory orders ….”); Yamaha Motor
Corp. v. Calhoun, 516 U.S. 199, 205 (1996) (“As the text of
certified to the court of apрeals …. But the appellate court
may address any issue fairly included within the certified order
….” (emphasis removed)). That means that
deadline is jurisdictional. See Hamer, 138 S. Ct. at 20. And indeed,
neither we nor any other circuit has questioned the jurisdictional
status of the ten-day limit. See Nuclear Engineering,
660 F.2d at 245 (“Appeals brought pursuant to
be filed within 10 days of the entry of the certification order,
and that requirement is jurisdictional.”); see also, e.g., In re City
of Memphis, 293 F.3d 345, 348 (6th Cir. 2002) (“Failure to file an
aрpeal within the 10-day period is a jurisdictional defect that
deprives this court of the power to entertain an appeal.”);
Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 866 (4th
Cir. 2001) (“The ten-day filing requirement is jurisdictional
we and other circuits have struggled is whether this jurisdictional
deadline can be extended. We now turn to that issue.
III.
The statute does not authorize either district courts or the
courts of appeals to extend
Yet we have permitted district courts to do indirectly
what they cannot do directly: give litigants more timе to file a
petition in the court of appeals. In Nuclear Engineering Co.,
we held that if there are equitable reasons to permit an appeal
even after the statutory deadline has passed, a district court
may restart the ten-day clock by either vacating and rеentering
or simply by recertifying its order. 660 F.2d at 246–47.
We reasoned that a district court should not be driven by “rigid”
adherence to the statutory deadline but should instead consider
the value of an immediate appeal, along with the litigant’s
culpability for the delay and whether recertification
would prejudice the opposing party. Id. at 247. Other circuits
have approved this sort of indirect extension as well, although
there is disagreement about the factors that a district
court should apply in deciding whether to grant it. All of
these cases were decided before Bowles v. Russell, 551 U.S. 205,
214 (2007), introduced the Court’s renewed emphasis on the
federal courts’ lack of authority to read equitable exceptions
into fixed statutory deadlines. See In re City of Memphis, 293
F.3d at 350;2 Safety-Kleen, Inc. (Pinewood), 274 F.3d at 866–67;
the clock by recertification. See Woods v. Balt. & Ohio R.R. Co., 441 F.2d 407,
408 (6th Cir. 1971). It reversed course in In re City of Memphis, ending the
circuit split that had developed in the years following Woods.
Cir. 1998); English v. Cody, 146 F.3d 1257, 1259 n.1 (10th Cir.
1998); Marisol A. ex rel. Forbes v. Giuliani, 104 F.3d 524, 528–29
(2d Cir. 1996); In re Benny, 812 F.2d 1133, 1137 (9th Cir. 1987);
Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir. 1981);
Braden v. Univ. of Pittsburgh, 552 F.2d 948, 954–55 (3d Cir. 1977)
(en banc); In re La Providencia Dev. Corp., 515 F.2d 94, 95 n.1
We acknowledged in Nuclear Engineering Co. that this is a
“rather thorny question” given the ostensibly clear language
of the statute, 660 F.2d at 245, and while we have never revisited
the case, we have never exercised
reliance on it either.4 Nuclear Engineering Co., however, has
day timе limitation, if not a nullity, essentially within the discretion of a
district court to extend at will.” See Baldwin Cty. Welcome Ctr. v. Brown, 466
U.S. 147, 162 (1984) (Stevens, J., dissenting). Baldwin County is a puzzling
case. After describing the jurisdictional issue as a “close one” subject to a
circuit split, the dissent concluded with little explanation that recertification
is effective to extend the jurisdictional deadline. Id. The majority
didn’t addrеss the question at all, so it is unclear whether it viewed the
procedural posture differently or thought that interlocutory jurisdiction
was proper. Even if the majority approved recertification sub silentio,
however, its аssumption would be a “drive-by jurisdictional ruling[]”
lacking precedential effect. Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 91 (1998). Moreover, as we explain in the text, more recent Supreme
Court decisions have severely undermined the proposition that a federal
court can extend a fixed jurisdiсtional deadline, whether directly or indirectly.
context, and none of those cases relies on its holding that
a recertification can restart the clock for an appeal under
of these cases cite it for a different proposition. See In re Hamilton, 122 F.3d
13, 14 (7th Cir. 1997); Hillman v. Resolution Tr. Corp., 66 F.3d 141, 143–44
Court precedent has undermined it. Just a few months ago,
the Court emphasized the rigidity of filing deadlines for interlocutory
appeals even when they appear in claim-processing
rules. See Nutraceutical Corp., 139 S. Ct. at 714–15. Nuclear Engineering
Co. permits a district court to make an end-run
around a jurisdictional deadline—and jurisdictional deadlines
are even more immoveable because they cannot be waived or
forfeited. See Nestorovic v. Metro. Water Reclamation Dist. of
Greater Chi., 926 F.3d 427, 430 (7th Cir. 2019). Because Nuclear
Engineering Co. is inconsistent with the Court’s approach to
fixed filing deadlines, we overrule it.5
In doing so, we begin with the basic principle that when a
jurisdictional statute sets a firm deadline, courts have nо authority
to extend it. Bowles, 551 U.S. at 209 (“[T]he taking of an
appeal within the [statutorily] prescribed time is ‘mandatory
and jurisdictional.’” (citation omitted)). This can lead to harsh
results, especially when there are strong equitable reasons to
give a litigant more time. In Bowles, for example, a criminal
defendant—seeking to appeal his fifteen-year-to-life
deadline because the district court told him the wrong
due date. 551 U.S. at 207. Still, the Court concluded that it had
“no authority to create equitable exceptions to jurisdictional
requirements.” Id. at 214. And in In re Sobczak-Slomczewski, we
held that a district court lacked jurisdiction over a bankruptcy
appeal filed one day after the fourteen-day deadline, even
though the appellаnt didn’t receive the order in the mail until
the fourteenth day. 826 F.3d at 432. Deadlines are by nature
arbitrary, which can make dismissal for failure to comply
with them seem particularly harsh. But the Court has been
unwavering in its insistence that our adjudicatory authority
is limited by the Constitution and Congress, and no result justifies
our intervening where we have not been granted the
power to do so. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 101–02 (1998) (“For a court to pronounce upon the
meaning or the constitutionality of a state or federal law when
it has no jurisdiction to do so is, by vеry definition, for a court
to act ultra vires.”).
Indeed, the Court has emphasized that even non-jurisdictional
time limits may require bright-line application. See
Nutraceutical Corp., 139 S. Ct. at 714 (explaining that “some
claim-processing rules are ‘mandatory’—that is, they are ‘unalterable’
if properly raised by an opposing party” (citation
omitted)). In Nutraceutical Corp., the Court concluded that the
fourteen-day deadline to petition to appeal a class-certification
decision—an interlocutory order—could not be extended
by a court of appeals. Id. at 715. The Court based that conclusion
on the “plain import” of the time limit, Federal Rule of
Appellate Procedure 26(b)(1)’s prohibition on courts of appeals
extending the deadline for petitions for permission to
appeal, and the lack of any provision allowing for equitable
press[ed] a clear intent to сompel rigorous enforcement of [the
fourteen-day] deadline, even where good cause for equitable
tolling might otherwise exist.” Id. And “[w]here the pertinent
rule or rules invoked show a clear intent to preclude tolling,
courts are without authority to make exceptions merely because
a litigant appears to hаve been diligent, reasonably mistaken,
or otherwise deserving.” Id. at 714.
Section
from granting litigants more time—even Nuclear Engineering
Co. recognized that. See 660 F.2d at 246. The statute authorizes
a court of appeals to grant a petition to appeal only “if application
is made to it within ten days after entry of the order.”
expressly prohibiting courts of appeals from extending the
time to petition for permission to appeal. See also
be filed within the time specified by the statute or rule authorizing
the appeal.” (emphasis added)). If a litigant asked us to
toll the clock, thеre is no question that we would have to refuse.
It is similarly indisputable that
courts from granting litigants extensions outright. An order
purporting to allow a litigant fifteen days in which to file a
ten-day limit. Cf. Bowles, 551 U.S. at 207–08 (holding that
a district court lacks authority to grant a litigant a seventeen-day
extension to file a notice of appeal when the statute set a
fourteеn-day limit). And while district courts can extend the
time for filing a notice of appeal on grounds of excusable neglect,
to appeal. Cf.
and petitions for permission to appeal differently). That distinction
makes sense: a litigant who loses the opportunity to
appeal a final judgment forever loses the ability to appeal, but
a litigant who loses the opportunity to file an interlocutory
appeal has another chancе later. Interlocutory appeals are exceptional,
so their limitations are “purposefully unforgiving.”
Nutraceutical Corp., 139 S. Ct. at 716.
Nuclear Engineering Co. permits a district court to make an
end-run around this limit with the fiction that recertifying an
order isn’t the same thing as granting more time. But we have
foreclosed that tactic in analogous contеxts. The reentry of a
collateral order does not restart the time to appeal. See People
Who Care v. Rockford Bd. of Educ. Dist. No. 205, 921 F.2d 132,
135 (7th Cir. 1991). Nor does mere reentry of a judgment. See
FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211
(1952) (“[T]he mere fact that a judgment previously entered
has been reentered or revised in an immaterial way does not
toll the time within which review must be sought.”); Wilson v.
United States, 413 F.3d 685, 687 (7th Cir. 2005) (noting that district
courts cannot simply restart the clock “by vacating and
reentering a judgment”). And we have made clear that motions
for post-judgment relief,
used to make “an end run around the deadline for filing an
appeal” either. See Mendez v. Republic Bank, 725 F.3d 651, 661
(7th Cir. 2013). Treating reentry of an order or judgment as a
mechanism for restarting the clock renders a deadline subject
to tolling, even when tolling is otherwise prohibited.
That’s what Nuclear Engineering Co. does to
statute sets a ten-day limit that district courts can’t toll, yet
tactic is inconsistent with the statute’s imposition of a fixed
jurisdictional deadline, and its text underscores that. The statute
provides that when a district court enters “an order not
otherwise appealable” and concludes that it meets the statutory
standards for interlocutory appeal, it “shall so state in
writing in such order.”
That statement may appear in the merits оrder when it issues
or be added by amendment.
is certified, it becomes “the order” from which the clock runs,
and accordingly “the order” from which a court of appeals
may permit an appeal—so long as it receives the application
within ten days of the order’s entry. See
(the court of appeals may “permit an appeal to be taken from
such order, if application is made to it within ten days after еntry
of the order” (emphasis added)). If the application is not
made within ten days, the order is no longer appealable. The
statute does not contemplate that the order’s appealability
can be revived by a new certification; rather, the course has
run for “such order” once the statutory period lapses.
Where, as here, a deadline for appeal is fixed, it “cannot
be enlarged just because [a] court in its discretion thinks it
should be enlarged.” See Minneapolis-Honeywell Regulator Co.,
344 U.S. at 211. Accordingly, we overrule the portion of Nu-
clear Engineering Co. holding that mere recertification (or va-
catur and reentry) of an order for interlocutory appeal may
extend the jurisdictional deadline.6 This will not work a sea
reconsideration of a previously certified order might allow recertification
to restart the clock. Cf. Minneapolis-Honeywell Regulator Co., 344
U.S. at 211–12
are rare, and, as we noted earlier, we have never relied on Nu-
clear Engineering Co. to exercise jurisdiction in this circumstance.
Cf. Bowles, 551 U.S. at 214 (overruling the “unique circumstances”
doctrine, which permitted a district court to excuse
compliance with a jurisdictional requirement, when the
Court had relied on it “only once in the last half century”).
Nor are we disturbing the reliance intеrests of litigants, who
have minimal reliance interests in procedural and jurisdictional
rules. See Hohn v. United States, 524 U.S. 236, 251 (1998)
(“The role of stare decisis [] is ‘somewhat reduced in the case
of a procedural rule which does not serve as a guide to lawful
behavior.’” (citation and alterations omitted)). Most important,
though, is that the Court’s intervening precedent, not
to mention our own, has rendered Nuclear Engineering Co. an
aberration.
* * *
Because Groves failed to file his petition for permission to
appeal within ten days of the district court’s initial certification
order, we lack jurisdiction to consider it and DISMISS his
appeal.
(“Only when the lower court changes matters of substance,
or resolves a genuine ambiguity, in a judgment previously rendered
should the period within which an appeal must be taken … begin to run
anew.” (footnotes omitted)); see also Gary v. Sheahan, 188 F.3d 891, 893 (7th
Cir. 1999).