hear argument this morning in case sixteen six fifty eight hammer vs neighborhood housing services of chicago was the first off mr chief justice and may it please the court one of the fundamental tenets of our constitutional structure is that unambiguous the district court can extend the time to appeal as long as the motion is timely filed and there's been a showing of excusable neglect or good cause no maximum extension of time is set in the statute or  considered to extend the time to appeal will certainly be equities would have to be weighed certainly the longer the longer the extension is perhaps the less reasonable it is for an appellant to rely on the district court's order but assuming that an order is relied on in good faith by the appellant there's been no objection from the other side to spin no showing of bad faith we think that the equities should be considered and here it's undisputed hammer was misled by the district court's order there's absolutely no showing of bad faith here the seventh circuit itself the recognize that miss hammer was misled and under those circumstances we think that equitable considerations should require that the appeal be the federal rules assuming it's not jurisdiction that the statute has that you're right that this is a non jurisdictional barrier it would still be a statutory the very yes and we then we think that missed him or was misled by the district court's order it's certainly true that she may have also been misled by the attorneys motion for the extension of time but  extension of time required that the equities be considered and required that the appeal be decided on the merits and we submit here the same course should be followed as a matter of custom and usage in the district court could you just tell me suppose curious to know i think i've certainly seen some instances where a court comes out with a decision and then asks the parties to submit a proposed form of judgement so that could certainly happen here the judge of the final judgment was entered alongside my asking their court to do that although you have one brief and really just between these cases telling us that we were wrong in drawing the distinction between what's in the statu and i respectfully disagree with that for a couple of reasons that formulation of jurisdiction is inconsistent with this court's case law and also with the rules of civil procedure for instance under professor do jurisdictional similarly the federal rules of civil procedure such as rules fifty four b and twenty three f would be jurisdictional under professor dodson's formulation but we know from rule eighty two that the rules of civil procedure are it what if the rule for example interpreted statutory language the rule interpreted statutory law on language then perhaps the under that interpretation of the statue the statute could be jurisdictional but the rule on its own could never be jurisdictional and why is that it's an old stems from a long line of scorched cases such as contraception and also stems from article three of the constitution which says that it's for congress to so we think that the same course should be followed here the the the rule by its terms i suppose it says you've got to file the motion no later than thirty days after the time prescribed under rule for that congress intends its amendments to have effect and aside from that the legislative history shows that congress knew exactly what limitations it was incorporating into the statute specifically the house whereas the entirety of rule forty six was being incorporated certainly congress made a specific decision which parts to incorporate and which parts not to incorporate well they also said these really technical changes  was said however on the comparison between the old statute in the new statute it shows the very significant changes were made to older statute only permitted an extension of time if there was excusable neglect plus a lack of noticed here or there can be an extension of time under the next ninety one statute if there's any showing of excusable neglect or if there is any showing of good cause additionally the statute in the second part of twenty one of seventy permit statute made very significant changes do you think there's anything that would bar the rules of public procedure from altering doctrines like forfeiture waiver and exceptional circumstances i think that certainly is possible for the rules to do that but i don't think it was done here but yes well this is assuming it's not jurisdictional it is a mandatory claims processing rule yes your honor and if it comes you know it follows from a version of the statute they did impose a hard time limit that i i would this prior version of the statute had a time limit it did yes and there's at least some question whether congress really intended to eliminate that or whether it was done advertently or whether it was done on the assumption that extension if you weren't notified of the n p v judgment and there was no provision for any extension no time period attached to it and he left for extension other than  didn't get notice of the entry and get on the under the old statute there was a requirement that there be a lack of notice plus excusable neglect so both of those conditions had to be met in order for there to be an extension of  time whereas here there's a provision for an extension of time where there's excusable neglect but no lack of noticed there's a separate provision for an extension or there's lack of notice but no excuse will neglect so when i knew that  correct well given that this is a mandatory cornish processing bill and you said that you didn't think there was anything that would prevent the rules from altering doctrines like forfeiture and waiver would it be within the discretion of the court of appeals to say that we are going to treat this will even though it's not jurisdictional in some respects as if it were jurisdictional so that for example we will sue a spontaneous raise the question of timeliness under the rule there that would be inconsistent with this court case law which says that that forfeited issues should not be raised to a spontaneous loss there are exceptional circumstances extraordinary circumstances i think that terminology that was used and here there are no such extraordinary circumstances that would that would allow court of appeals to address the source sponsor so how is that consistent with your answer that you that that  rule as changing the doctrine after all it is a mandatory claims processing rule there has to be some teeth in the concept of mandatory if it gets out there certainly ar has long interpreted the federal rules to facilitate just position of cases on their merits for example in surrey where it's the court said that foreman versus davis the court held that an appeal had to proceed despite the fact that there was a defect in the notice of appeal so there's been a long history of the federal rules being interpreted to maximize the resolution of cases on their merits and they submit the rule for a five sees no differen provision whether that would be permissible we'd have to look certainly to see if that would be consistent with the rules enabling acts what and whether such a and no forfeiture will be consistent with that for whose  benefit do you think something like the thirty day rule was adopted solely for the benefit of the of the apple e for the it is for the benefit of the apple a it's also for the benefit of the of the courts well if it's at least partly for the benefit of the food court then why is the court stuck with whatever of the apple league does on the issue of forfeit sleep in this will suppose that least in part to protect the jurisdiction of the court of appeals why can't the court of appeals put some teeth in this not by treating in a strictly jurisdictional but as having putting thumb certainly on the scale and in applying the doctrines that you're relying on well i think that's where the court's case law regarding this extraordinary circumstances comes and under extraordinary circumstances a court of appeals but certainly nothing like that has happened here so because r would submit that it is subject to forfeiture waiver and equitable considerations based on the score its case law based upon federal statutes and based upon the federal rules and if there are no mr stewart mr chief justice and may please the court there's one fact is undisputed in this case and that is that mr kramer followed her notice of appeal outside of the thirty day limitation of support within four and there are two approaches that the court can  view the defendant could just liberally say nothing and then on appeal when it's too late for the district court to correct the error say  that certainly isn't what happened in this case judge it just was going for and what i think the petitioners argument that it's in the question that you interposing it ignore sort of the realities of litigation what there are certain occasions in a litigation where generally we're all familiar with the rules but there are certain occasions in litigation where you focus more clearly on the rules in those instances usually occur when there is something to do when there is something obligating us to do something for instance if we had to respond if a petition was counsel former counsel had conferred with us then we would have looked at would perhaps may have looked at the rule to determine whether what is what is the rule what is the timeframes that into in that case we may have been able to do they do would have been able to if you got notice even if you write when he didn't and when consulted in advance once you know it has been a sixty day order issue  well there was no occasion for us to do so in other words once the motion was filed usually you would have had an opportunity to object to remember in oppose a response that opportunity didn't come to pass so the untim order was filed they were in a different place and there's no obligation is real rule there's no statutory guidance that's adjusted once an order was filed that we would have had an obligation to file perhaps a motion for reconsider and so we made those statements in a docking station which is a tool used by the seventh circuit for administration of the courts and certainly there is a preliminary statement on jurisdiction where we made the representations to the court that we did that was a mistake but there was no consequence to that mistake in other words the way the seven circuits in the seven circuits practitioners handbook it gives an opportunity for the a pelleas to correct any mistakes that are contained in a docking station and that is exactly what happened in this case the very next day the seventh circuit required the respondents to brief the issue of jurisdiction we responded seven or eight days later that it intent is for the court to be able to identify the legal questions that will be implicated by the case correct and that also gives  right so the fact that you made these statements didn't notify the seventh circuit that you had not forfeited this claim correct correct so why didn't you forfeit it by making because the seven circuits are not binding in the seven b the darkening statements are not binding very be the rules they specifically spelled out that there are any in accuracies any mistakes made in offering statement the court will look at that stopping statement and require the parties to correct it which exact is it which is exactly what happened and i'm sorry i don't know that correction what correction means situation to the circuit but i take correction to mean there's an error in the record not an error in my concession so there was we made this you didn't tell the second is the suddenly discovered this seven circuit into jack to get into the case but if the rule is mandatory but not jurisdiction in the seven in the circuit court we did better than that we raise it in pre marriage briefing to the senate where i know that the seven making arguments that would be true if it weren't a jurisdictional rule right and i mean so which is it do you think that this is a jurisdictional that this is a jurisdictional rule or that it wasn't but still  should accept what the seventh circuit did so argument is that this is this is a jurisdictional and because of that you don't consider any of the equities but in the alternative that this court declines to determine that this rule is still jurisdiction at minimum it is a mandatory claims process and that the petition should be dismissed on that but i think what justice ginsburg said a while ago is that when we have used that term in the past what we've men is that it's it's it's it's a mandatory claims process in that you have to follow unless the party from the other party forfeits the show there was no unless there's a very good reason you know there's some kind of extra special excuse that you have right but you know where there is a forfeiture and where that that that's the end of the matter we can call it a mandatory claims processing or not but you rule and the statute in the rules prompt and although the thirty day to specific language of thirty days is no longer in the statute we do not believe that there was any intention by congress to the rule of the jurisdiction  extension but the the way the pre nine hundred ninety one statute writ it provided the district court's authority to extend the time for foot to violent notice of appeal upon a showing of excusable neglect limitation was premised on a showing of excusable neglect is still remains in the statute today but what was  had to demonstrate excusable neglect the certainly in the wrong you know the rule did more for overtime and evolve to take into account other things good cause for instance and eventually prove forty six came into being which is what limiting thirty days is no longer in the in the us code that is correct we believe that it was inadvertently omitted in the one nine hundred ninety one amendments that's our position and it is there any direct legislative history say for us reading into a statute omitted language you know i can't prove give you a precise case that comes up with a situation like this but i think the history of this rule going back nearly a century that the note the deadline regarding notices of peel's have been treated the jurisdiction in american courts were centrally if congress intended to change the jurisdictional nature of the rule it would have said so and there's nothing in this legislative history would suggest congress intended to do that there is a problem with that because it did change the rules fundamentally when it permitted the opening of a judgment for six months if you didn't receive notice of it that's a fairly radical change from the norm and so why would it be inappropriate to assume that congress intended for district court to exercise its discretion and judgment in deciding how much was a reasonable time for excusable that or for a good cause so you look at the inconsistency that was established right if a party a district court could extend the time up to fourteen days once a party who never received notice of the final order the district court could extend the time to file that notice of appeal for fourteen days under the petitioners theory if the paternity limitation was rude the district court would have the authority to extend the time the father knows the feel of the state as the chief justice articulated up to three years a year there is no limitation there's no limitation in the statute that inconsistency is why we believe congress and every incentive in the nation has to be for a good cause right congressional statute which does set forth a jurisdictional rule and congress wakes up one day and decides you know what we don't think that this rule should be jurisdictional anymore how does that change that statute yes congress would presumably pass a piece of legislation which no longer included the role right they could but you would think that they would have done so especially in a situation like this where but that's what congress did here i guess i mean what else do you expect congress to do if it changes its mind i would expect them given the history of the deadline for guarding notice of appeal to at least said that that's what they're going to do lay is not taking away this jurisdictional rule and we really mean it there was no it in this instance there was no mention of rule forty five six there was no mention of a thirty day limitation but at the end of the day we get to the same place if the court is not inclined to rule that rule for you five see that can you tell me why you don't think you need to file an appeal yourself if you wish to challenge it district court order sure given that's the normal course shortage course that this court in the jennys case describ instances where in a probably would be required to file across appeal here to ins one of the appeal you seeking to enlarge its own rights we weren't doing that here because we won the case of summary judgment the other instance would be if you're seeking to lessen the rights court of appeals and judge sudden would say that is an extension of a new right by the district court that you wish to extinguish and therefore need a notice of appeal that's the line of reasoning he follows what's what's wrong with that so the problem with that reasoning is that the district court providing the additional time gave her some right the district court didn't have the authority in the first place to give that time and that's because of rule four and rule twenty six rule four says that a party has thirty days to file a notice of appeal forty five c it allows a district court to extend that period to an additional thirty days but no more and rule twenty six says the courts have the authority to extend the time to comply with the rules with the exception of rule four so there that's why it's mandatory your just a couple of quick points regarding the contract and the argument that there is no forfeiture if the issues raised in the merits brief that argument rests on a misreading of contr there was a forfeiture where among other things the issue had not been raised in the brief the contract did not say that any time it is raised in the merits brief then there is no forfeiture similarly and manrico there was that it was we're certainly not arguing that there was a forfeiture based upon the the one day the one day period between the filing of the motion in the granting of the motion so you think that the ad police had on pain of forfeiture they had an obligation to inform the other side and the court just prior to the running out of the time when you know you're going to run you're going to have a problem here under the rule if you don't follow your nose of the people right away they had that obligation to pro se from then on and so the police the respondents here forfeited their right to rely on will forty five see by not objecting to the extension they a to go to justice course which is point forfeited by failing to appeal or cross appeal but the respondents argued that that their their rights were not being enlarged because they got everything that they wanted from the district court summary judgment order however that focuses on the wrong order from the district court the order granting the extension of time said that she had two months to  two months extra and here the respondents are seeking in essence a reversal of the district court's order granting the extension of time and they have been in order for that decision saying that she was not entitled to that extension of time there from which to appeal the order from which the appeal had to be taken was summary judgment for the defendant that's the judgment right that's the district court's judgment on the merits yes and the doesn't seem right to me i mean is that the relief they want is that they can't be sued were they when they say that the ground on which they get to that objective makes requires a cross appeal i don't think that's right well that they care whether the the seventh circuit says you win or they say that your opponent's appeal is dismissed there they certainly might i might not carry grav i agree with that however if they're trying to get the appeal dismissed argument because the jurisdiction can be raised all right and it has a mandatory claims processing argument they have to file across appeal if there see if they're seeking to alter what the district court did in other words they're trying to get we respectfully request that the court reverse the seventh circuit judgment and remand for consideration of the same as appeal on the merits thank you the case is submitted