|June 11, 2014|
Previously published on June 9, 2014
The recent opinion of the U.S. Court of Appeals for the Seventh Circuit in Banks v. Chicago Board of Education, 13-2018, N.D. Ill, E. Div. (April 24, 2014), illustrates the importance of engaging an appellate attorney to properly perfect post-trial motions that affect the right to appeal.
The plaintiff, Patricia Banks, sued her former employer, the Chicago Board of Education, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and related violations of federal and state law. The district court granted summary judgment for the defendant on all claims. Twenty-nine days after the district court entered judgment, the plaintiff filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). The district court denied this motion six days later. The plaintiff then filed a notice of appeal challenging both the grant of summary judgment to the defendant and the denial of her post-judgment motion.
The appellate court found that it did not have jurisdiction to review the summary judgment order because the plaintiff’s Rule 59(e) motion was untimely and therefore did not have the effect of tolling her time for filing a notice of appeal. Under Federal Rule of Appellate Procedure 4(a)(1)(A), a party in a civil action must file a notice of appeal within 30 days after entry of the judgment or order to be appealed. The filing of a timely Rule 59(e) motion, however, will toll the time for filing a notice of appeal.
A timely Rule 59(e) motion is one that is filed within 28 days after the entry of judgment. Here, the plaintiff filed her Rule 59(e) motion on the 29th day. The motion was thus untimely, which in turn rendered her notice of appeal challenging the summary judgment order untimely, such that the Seventh Circuit had no jurisdiction to review it. In reaching this conclusion, the Seventh Circuit cautioned that Rule 59(e)’s “time limit is unyielding” with respect to tolling the time for filing a notice of appeal and may not be extended by either the district court or the appellate court with its tolling effect intact.
The court also rejected the plaintiff’s argument that it should consider the notice of appeal from the summary judgment order timely because the district court accepted and ruled on the late-filed Rule 59(e) motion: “A district court’s acceptance of an untimely Rule 59(e) motion does not save the motion. ... The fact that the district court may have mistakenly considered Banks’s arguments under Rule 59(e) does not compel or even permit us to review the merits of the underlying judgment.”
Because the Rule 59(e) motion was untimely, the court considered it instead as a Rule 60(b) motion for relief from a judgment or order. As such, the scope of the appellate court’s review was limited to the district court’s order denying the plaintiff’s post-judgment motion (which was affirmed) and the applicable standard of review was abuse of discretion as opposed to the de novo standard applied to the review of summary judgment orders.
This is significant. Because an abuse of discretion will be found only where no reasonable person could reach the same conclusion as the trial court, the abuse of discretion standard is always a high hurdle for an appellant to overcome. By contrast, the de novo standard of review allows the appellate court to review the case anew without being bound by the district court’s decision or reasoning; it is thus a much better standard of review for appellants. By filing the Rule 59(e) motion just one day late, the plaintiff unwittingly rendered the summary judgment order unreviewable and changed the standard of review in a manner unfavorable to her. The lesson of Banks: retaining an appellate practitioner to handle post-trial and appellate litigation is a necessity, particularly where one’s very right to appeal is on the line.