Hamer v. Neighborhood Housing Servs. of Chicago

(Slip Opinion) OCTOBER TERM, 2017 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HAMER v. NEIGHBORHOOD HOUSING SERVICES OF
CHICAGO ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT

No. 16–658. Argued October 10, 2017—Decided November 8, 2017
An appeal filing deadline prescribed by statute is considered “jurisdic-
tional,” meaning that late filing of the appeal notice necessitates
dismissal of the appeal. See Bowles v. Russell, 551 U. S. 205, 210–
213. In contrast, a time limit prescribed only in a court-made rule is
not jurisdictional. It is a mandatory claim-processing rule that may
be waived or forfeited. Ibid. This Court and other forums have
sometimes overlooked this critical distinction. See Reed Elsevier, Inc.
v. Muchnick, 559 U. S. 154, 161.
Petitioner Charmaine Hamer filed an employment discrimination
suit against respondents. The District Court granted respondents’
motion for summary judgment, entering final judgment on Septem-
ber 14, 2015. Before October 14, the date Hamer’s notice of appeal
was due, her attorneys filed a motion to withdraw as counsel and a
motion for an extension of the appeal filing deadline to give Hamer
time to secure new counsel. The District Court granted both motions,
extending the deadline to December 14, a two-month extension, even
though the governing Federal Rule of Appellate Procedure, Rule
4(a)(5)(C), confines such extensions to 30 days. Concluding that Rule
4(a)(5)(C)’s time prescription is jurisdictional, the Court of Appeals
dismissed Hamer’s appeal.
Held: The Court of Appeals erred in treating as jurisdictional Rule
4(a)(5)(C)’s limitation on extensions of time to file a notice of appeal.
Pp. 5–10.
(a) The 1948 version of 28 U. S. C. §2107 allowed extensions of time
to file a notice of appeal, not exceeding 30 days, “upon a showing of
excusable neglect based on failure of a party to learn of the entry of
the judgment,” but the statute said nothing about extensions when
2 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO

Syllabus

the judgment loser did receive notice of the entry of judgment. In
1991, the statute was amended, broadening the class of prospective
appellants who could gain extensions to include all who showed “ex-
cusable neglect or good cause” and reducing the time prescription for
appellants who lacked notice of the entry of judgment from 30 to 14
days. §2107(c). For other cases, the statute does not say how long an
extension may run. Rule 4(a)(5)(C), however, does prescribe a limit:
“No extension [of time for filing a notice of appeal] may exceed 30
days after the prescribed time [for filing a notice of appeal] or 14 days
after the date [of] the order granting the [extension] motion . . . ,
whichever is later.” Pp. 5–6.
(b) This Court’s precedent shapes a rule of decision that is both
clear and easy to apply: If a time prescription governing the transfer
of adjudicatory authority from one Article III court to another ap-
pears in a statute, the limitation is jurisdictional; otherwise, the time
specification fits within the claim-processing category.
In concluding otherwise, the Court of Appeals relied on Bowles.
There, Bowles filed a notice of appeal outside a limitation set by Con-
gress in §2107(c). This Court held that, as a result, the Court of Ap-
peals lacked jurisdiction over his tardy appeal. 551 U. S., at 213. In
conflating Rule 4(a)(5)(C) with §2107(c) here, the Seventh Circuit
failed to grasp the distinction between jurisdictional appeal filing
deadlines and deadlines stated only in mandatory claim-processing
rules. It therefore misapplied Bowles. Bowles’s statement that “the
taking of an appeal within the prescribed time is ‘mandatory and ju-
risdictional,’ ” id., at 209, is a characterization left over from days
when the Court was “less than meticulous” in using the term “juris-
dictional,” Kontrick v. Ryan, 540 U. S. 443, 454. The statement was
correct in Bowles, where the time prescription was imposed by Con-
gress, but it would be incorrect here, where only Rule 4(a)(5)(C) limits
the length of the extension. Pp. 7–10.
835 F. 3d 761, vacated and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court.
 Cite as: 583 U. S. ____ (2017) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 16–658
_________________

CHARMAINE HAMER, PETITIONER v. NEIGH-
BORHOOD HOUSING SERVICES OF

CHICAGO, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[November 8, 2017]

JUSTICE GINSBURG delivered the opinion of the Court.
This case presents a question of time, specifically, time
to file a notice of appeal from a district court’s judgment.
In Bowles v. Russell, 551 U. S. 205, 210–213 (2007), this
Court clarified that an appeal filing deadline prescribed by
statute will be regarded as “jurisdictional,” meaning that
late filing of the appeal notice necessitates dismissal of the
appeal. But a time limit prescribed only in a court-made
rule, Bowles acknowledged, is not jurisdictional; it is,
instead, a mandatory claim-processing rule subject to
forfeiture if not properly raised by the appellee. Ibid.;
Kontrick v. Ryan, 540 U. S. 443, 456 (2004). Because the
Court of Appeals held jurisdictional a time limit specified
in a rule, not in a statute, 835 F. 3d 761, 763 (CA7 2016),
we vacate that court’s judgment dismissing the appeal.
I

A

“Only Congress may determine a lower federal court’s
subject-matter jurisdiction.” Kontrick, 540 U. S., at 452
(citing U. S. Const., Art. III, §1); Owen Equipment &
2 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO

Opinion of the Court

Erection Co. v. Kroger, 437 U. S. 365, 370 (1978) (“[I]t is
axiomatic that the Federal Rules of Civil Procedure do not
create or withdraw federal jurisdiction.”). Accordingly, a
provision governing the time to appeal in a civil action
qualifies as jurisdictional only if Congress sets the time.
See Bowles, 551 U. S., at 211–212 (noting “the jurisdic-
tional distinction between court-promulgated rules and
limits enacted by Congress”); Sibbach v. Wilson & Co., 312
U. S. 1, 10 (1941) (noting “the inability of a court, by rule,
to extend or restrict the jurisdiction conferred by a stat-
ute”). A time limit not prescribed by Congress ranks as a
mandatory claim-processing rule, serving “to promote the
orderly progress of litigation by requiring that the parties
take certain procedural steps at certain specified times.”
Henderson v. Shinseki, 562 U. S. 428, 435 (2011).
This Court and other forums have sometimes overlooked
this distinction, “mischaracteriz[ing] claim-processing
rules or elements of a cause of action as jurisdictional
limitations, particularly when that characterization was
not central to the case, and thus did not require close
analysis.” Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154,
161 (2010). But prevailing precedent makes the distinc-
tion critical. Failure to comply with a jurisdictional time
prescription, we have maintained, deprives a court of
adjudicatory authority over the case, necessitating dismis-
sal—a “drastic” result. Shinseki, 562 U. S., at 435;
Bowles, 551 U. S., at 213 (“[W]hen an ‘appeal has not been
prosecuted . . . within the time limited by the acts of Con-
gress, it must be dismissed for want of jurisdiction.’ ”
(quoting United States v. Curry, 6 How. 106, 113 (1848))).
The jurisdictional defect is not subject to waiver or forfei-
ture1 and may be raised at any time in the court of first
——————
1 The terms waiver and forfeiture—though often used interchange-

ably by jurists and litigants—are not synonymous. “[F]orfeiture is the
failure to make the timely assertion of a right[;] waiver is the ‘inten-
 Cite as: 583 U. S. ____ (2017) 3

Opinion of the Court

instance and on direct appeal. Kontrick, 540 U. S., at
455.2 In contrast to the ordinary operation of our adver-
sarial system, courts are obliged to notice jurisdictional
issues and raise them on their own initiative. Shinseki,
562 U. S., at 434.
Mandatory claim-processing rules are less stern. If
properly invoked, mandatory claim-processing rules must
be enforced, but they may be waived or forfeited. Man-
rique v. United States, 581 U. S. ___, ___ (2017) (slip op., at
4). “[C]laim-processing rules . . . [ensure] relief to a party
properly raising them, but do not compel the same result if
the party forfeits them.” Eberhart v. United States, 546
U. S. 12, 19 (2005) ( per curiam).3
B
Petitioner Charmaine Hamer filed a complaint against
respondents Neighborhood Housing Services of Chicago
and Fannie Mae alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U. S. C. §2000e et seq., and the Age Discrimination in
Employment Act of 1967, 29 U. S. C. §621 et seq. The
District Court granted respondents’ motion for summary
judgment on September 10, 2015, and entered final judg-
ment on September 14, 2015. In the absence of a time
extension, Hamer’s notice of appeal would have been due
by October 14, 2015. Fed. Rule App. Proc. 4(a)(1)(A).
On October 8, 2015, before the October 14 deadline for
filing Hamer’s notice of appeal, her attorneys made two

——————
tional relinquishment or abandonment of a known right.’ ” United
States v. Olano, 507 U. S. 725, 733 (1993) (quoting Johnson v. Zerbst,
304 U. S. 458, 464 (1938)).
2 Subject-matter jurisdiction cannot be attacked collaterally, however.

Kontrick v. Ryan, 540 U. S. 443, 455, n. 9 (2004) (citing Des Moines
Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 552, 557–559 (1887)).
3 We have reserved whether mandatory claim-processing rules may

be subject to equitable exceptions. See Kontrick, 540 U. S., at 457.
4 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO

Opinion of the Court

motions.4 First, they sought to withdraw as counsel be-
cause of their disagreement with Hamer on pursuit of an
appeal. Second, they sought a two-month extension of the
notice of appeal filing date, so that Hamer would have
adequate time to engage new counsel for her appeal. App.
to Pet. for Cert. 57–59. The District Court granted both
motions on the same day and ordered extension of the
deadline for Hamer’s notice of appeal from October 14 to
December 14, 2015. Id., at 60. Respondents did not move
for reconsideration or otherwise raise any objection to the
length of the extension.
In the docketing statement respondents filed in the
Court of Appeals, they stated: “The United States Court of
Appeals for the Seventh Circuit has jurisdiction over this
appeal under 28 U. S. C. §1291, in that on December 11,
2015, [Hamer] filed a timely Notice of Appeal from a final
judgment of the United States District Court for the
Northern District of Illinois that disposed of all of
[Hamer’s] claims against [respondents].” Id., at 63. Re-
spondents’ statement later reiterated: “On December 11,
2015, [Hamer] timely filed a Notice of Appeal . . . .” Id., at
64. Nevertheless, the Court of Appeals, on its own ini-
tiative, questioned the timeliness of the appeal and in-
structed respondents to brief the issue. 835 F. 3d, at 762.
Respondents did so and, for the first time, asserted that the
appeal was untimely, citing the relevant Rule confining
extensions to 30 days. Id., at 762–763 (citing Fed. Rule
App. Proc. 4(a)(5)(C)). Concluding that it lacked jurisdic-
tion to reach the merits, the Court of Appeals dismissed
Hamer’s appeal. 835 F. 3d, at 763.5 We granted certio-
——————
4 Movants were the attorney appointed by the court to represent

Hamer and two other attorneys who entered appearances as co-counsel.
App. to Pet. for Cert. 57–59.
5 The Court of Appeals incorrectly stated that respondents, answering

the Seventh Circuit’s inquiry, asserted that the appeals court “lack[ed]
jurisdiction over [Hamer’s] appeal.” 835 F. 3d, at 763. In fact, respond-
 Cite as: 583 U. S. ____ (2017) 5

Opinion of the Court

rari. 580 U. S. ___ (2017).
II

A

Section 2107 of Title 28 of the U. S. Code, as enacted in
1948, allowed extensions of the time to file a notice of
appeal, not exceeding 30 days, “upon a showing of excus-
able neglect based on failure of a party to learn of the entry
of the judgment.” Act of June 25, 1948, §2107, 62 Stat.
963.6 Nothing in the statute provided for extension of the
time to file a notice of appeal when, as in this case, the
judgment loser did receive notice of the entry of judgment.
In 1991, Congress broadened the class of persons who
could gain extensions to include all prospective appellants
who showed “excusable neglect or good cause.” §12, 105
Stat. 1627. In addition, Congress retained a time pre-
scription covering appellants who lacked notice of the
entry of judgment: “[A] party entitled to notice of the entry
of a judgment . . . [who] did not receive such notice from
the clerk or any party within 21 days of [the judgment’s]
entry” qualifies for a 14-day extension,7 if “no party would
be prejudiced [thereby].” §2107(c). In full, §2107(c) now
provides:

——————
ents maintained that “the timeliness of Hamer’s appeal d[id] not
appear to be jurisdictional according to [Circuit] law.” App. to Pet. for
Cert. 71 (capitalization and footnote omitted). That was so, respond-
ents explained, because “the time limits found [in] Fed. R[ule] App.
P[roc.] 4(a)(5)(C) . . . lack a statutory basis.” Id., at 77. Even if not
jurisdictional, respondents continued, the Rule is mandatory and must
be observed unless forfeited or waived. Ibid.
6 As enacted, the pertinent paragraph of §2107 provided in full: “The

district court, in any such action, suit or proceeding, may extend the
time for appeal not exceeding thirty days from the expiration of the
original time herein prescribed, upon a showing of excusable neglect
based on failure of a party to learn of the entry of the judgment, order
or decree.” Act of June 25, 1948, §2107, 62 Stat. 963.
7 The 14-day prescription cuts back the original limit of 30 days.
6 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO

Opinion of the Court

“(c) The district court may, upon motion filed not later
than 30 days after the expiration of the time other-
wise set for bringing appeal, extend the time for ap-
peal upon a showing of excusable neglect or good
cause. In addition, if the district court finds—
“(1) that a party entitled to notice of the entry of a
judgment or order did not receive such notice from the
clerk or any party within 21 days of its entry, and
“(2) that no party would be prejudiced,
“the district court may, upon motion filed within 180
days after entry of the judgment or order or within 14
days after receipt of such notice, whichever is earlier,
reopen the time for appeal for a period of 14 days from
the date of entry of the order reopening the time for
appeal.”
In short, current §2107(c), like the provision as initially
enacted, specifies the length of an extension for cases in
which the appellant lacked notice of the entry of judg-
ment.8 For other cases, the statute does not say how long
an extension may run.
But Federal Rule of Appellate Procedure 4(a)(5)(C) does
prescribe a limit: “No extension [of time for filing a notice
of appeal] may exceed 30 days after the prescribed time
[for filing a notice of appeal] or 14 days after the date [of]
the order granting the [extension] motion . . . , whichever
is later.” Unlike §2107(c), we note, Rule 4(a)(5)(C) limits
extensions of time to file a notice of appeal in all circum-
stances, not just in cases in which the prospective appel-
lant lacked notice of the entry of judgment.

——————
8 The statute describes the 14-day extension permitted in lack-of-

notice cases as a “reopening [of] the time for appeal.” §2107(c). The
“reopening” period is the functional equivalent of an extension. See
Brief for American Academy of Appellate Lawyers as Amicus Curiae
5–6.
 Cite as: 583 U. S. ____ (2017) 7

Opinion of the Court

B
Although Rule 4(a)(5)(C)’s limit on extensions of time
appears nowhere in the text of §2107(c), respondents now
contend that Rule 4(a)(5)(C) has a “statutory basis” be-
cause §2107(c) once limited extensions (to the extent it did
authorize them) to 30 days. Brief for Respondents 17. No
matter, respondents submit, that Congress struck the 30-
day limit in 1991 and replaced it with a 14-day limit gov-
erning, as the 30-day limit did, only lack-of-notice cases;
deleting the 30-day prescription, respondents conjecture,
was “probably inadverten[t].” Id., at 1. In support of their
argument that Congress accidentally failed to impose an
all-purpose limit on extensions, respondents observe that
the 1991 statute identifies Congress’ aim as the enactment
of “certain technical corrections in . . . provisions of law
relating to the courts.” 105 Stat. 1623. They also note the
caption of the relevant section of the amending statute:
“Conformity with Rules of Appellate Procedure.” Id., at
1627. Because striking the 30-day limit from §2107 made
the statute less like Rule 4(a)(5)(C), respondents reason,
Congress likely erased the relevant paragraph absent-
mindedly. Hence, respondents conclude, “there is no
reason to interpret the 1991 amendment as stripping Rule
4(a)(5)(C) of its jurisdictional significance.” Brief for Re-
spondents 2.
Overlooked by respondents, pre-1991 §2107 never spoke
to extensions for reasons other than lack of notice. In any
event, we resist speculating whether Congress acted inad-
vertently. See Henson v. Santander Consumer USA Inc.,
582 U. S. ___, ___–___ (2017) (slip op., at 9–10) (“[W]e will
not presume with [respondents] that any result consistent
with their account of the statute’s overarching goal must
be the law but will presume more modestly instead ‘that
[the] legislature says . . . what it means and means . . .
what it says.’ ” (quoting Dodd v. United States, 545 U. S.
353, 357 (2005))); Magwood v. Patterson, 561 U. S. 320,
8 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO

Opinion of the Court

334 (2010) (“We cannot replace the actual text with specu-
lation as to Congress’ intent.”). The rule of decision our
precedent shapes is both clear and easy to apply: If a time
prescription governing the transfer of adjudicatory author-
ity from one Article III court to another appears in a stat-
ute, the limitation is jurisdictional, supra, at 2; otherwise,
the time specification fits within the claim-processing
category, ibid.9
In dismissing Hamer’s appeal for want of jurisdiction,
the Court of Appeals relied heavily on our decision in
Bowles. We therefore reiterate what that precedent con-
veys. There, petitioner Keith Bowles did not receive timely
notice of the entry of a postjudgment order and conse-
quently failed to file a timely notice of appeal. Bowles v.
Russell, 432 F. 3d 668, 670 (CA6 2005). When Bowles
learned of the postjudgment order, he moved for an exten-
sion under Federal Rule of Appellate Procedure 4(a)(6),
which implements §2107(c)’s authorization of extensions
in lack-of-notice cases. Ibid. The District Court granted
Bowles’s motion, but inexplicably provided a 17-day exten-
——————
9 Incases not involving the timebound transfer of adjudicatory
authority from one Article III court to another, we have additionally
applied a clear-statement rule: “A rule is jurisdictional ‘[i]f the Legisla-
ture clearly states that a threshold limitation on a statute’s scope shall
count as jurisdictional.’ ” Gonzalez v. Thaler, 565 U. S. 134, 141 (2012)
(quoting Arbaugh v. Y & H Corp., 546 U. S. 500, 515 (2006)). See also,
e.g., Henderson v. Shinseki, 562 U. S. 428, 431 (2011) (statutory dead-
line for filing notice of appeal with Article I tribunal held not jurisdic-
tional). “This is not to say that Congress must incant magic words in
order to speak clearly,” however. Sebelius v. Auburn Regional Medical
Center, 568 U. S. 145, 153 (2013). In determining whether Congress
intended a particular provision to be jurisdictional, “[w]e consider
‘context, including this Court’s interpretations of similar provisions in
many years past,’ as probative of [Congress’ intent].” Id., at 153–154
(quoting Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 168 (2010)).
Even so, “in applying th[e] clear statement rule, we have made plain
that most [statutory] time bars are nonjurisdictional.” United States v.
Kwai Fun Wong, 575 U. S. ___, ___ (2015) (slip op., at 6).
 Cite as: 583 U. S. ____ (2017) 9

Opinion of the Court

sion, rather than the 14-day extension authorized by
§2107(c). Bowles, 551 U. S., at 207. Bowles filed his no-
tice of appeal within the 17 days allowed by the District
Court but outside the 14 days allowed by §2107(c). Ibid.
“Because Congress specifically limited the amount of time
by which district courts can extend the notice-of-appeal
period in §2107(c),” we explained, the Court of Appeals
lacked jurisdiction over Bowles’s tardy appeal. Id., at 213.
Quoting Bowles at length, the Court of Appeals in this
case reasoned that “[l]ike Rule 4(a)(6), Rule 4(a)(5)(C) is
the vehicle by which §2107(c) is employed and it limits a
district court’s authority to extend the notice of appeal
filing deadline to no more than an additional 30 days.”
835 F. 3d, at 763. In conflating Rule 4(a)(5)(C) with
§2107(c), the Court of Appeals failed to grasp the distinc-
tion our decisions delineate between jurisdictional appeal
filing deadlines and mandatory claim-processing rules,
and therefore misapplied Bowles.
Several Courts of Appeals,10 including the Court of
Appeals in Hamer’s case, have tripped over our statement
in Bowles that “the taking of an appeal within the pre-
scribed time is ‘mandatory and jurisdictional.’ ” 551 U. S.,
at 209 (quoting Griggs v. Provident Consumer Discount
Co., 459 U. S. 56, 61 (1982) (per curiam)). The “mandatory
and jurisdictional” formulation is a characterization left
over from days when we were “less than meticulous” in
our use of the term “jurisdictional.” Kontrick, 540 U. S., at
454.11 The statement was correct as applied in Bowles
——————
10 See Freidzon v. OAO LUKOIL, 644 Fed. Appx. 52, 53 (CA2 2016);
Peters v. Williams, 353 Fed. Appx. 136, 137 (CA10 2009); United States
v. Hawkins, 298 Fed. Appx. 275 (CA4 2008).
11 Indeed, the formulation took flight from a case in which we mistak-

enly suggested that a claim-processing rule was “mandatory and
jurisdictional.” See United States v. Robinson, 361 U. S. 220, 224
(1960). We have since clarified that “Robinson is correct not because
the District Court lacked subject-matter jurisdiction, but because
10 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO

Opinion of the Court

because, as the Court there explained, the time prescrip-
tion at issue in Bowles was imposed by Congress. 551
U. S., at 209–213. But “mandatory and jurisdictional” is
erroneous and confounding terminology where, as here,
the relevant time prescription is absent from the U. S.
Code. Because Rule 4(a)(5)(C), not §2107, limits the
length of the extension granted here, the time prescription
is not jurisdictional. See Youkelsone v. FDIC, 660 F. 3d
473, 475 (CADC 2011) (“Rule 4(a)(5)(C)’s thirty-day limit
on the length of any extension ultimately granted appears
nowhere in the U. S. Code.”).
* * *
For the reasons stated, the Court of Appeals erroneously
treated as jurisdictional Rule 4(a)(5)(C)’s 30-day limitation
on extensions of time to file a notice of appeal. We there-
fore vacate that court’s judgment and remand the case for
further proceedings consistent with this opinion. We note,
in this regard, that our decision does not reach issues
raised by Hamer, but left unaddressed by the Court of
Appeals, including: (1) whether respondents’ failure to
raise any objection in the District Court to the overlong
time extension, by itself, effected a forfeiture, see Brief for
Petitioner 21–22; (2) whether respondents could gain
review of the District Court’s time extension only by filing
their own appeal notice, see id., at 23–27; and (3) whether
equitable considerations may occasion an exception to
Rule 4(a)(5)(C)’s time constraint, see id., at 29–43.

It is so ordered.

——————

district courts must observe the clear limits of the Rules of Criminal

Procedure when they are properly invoked.” Eberhart v. United States,

546 U. S. 12, 17 (2005) (per curiam).