Fifth Circuit Eats Crow As It Withdraws Entire Decision on the Merits, Finding That the Notices of Appeal Were Filed Too Late

In Edwards v. 4JLJ, LLC, No. 19-40553 (5th Cir. Sept. 21, 2020), a panel of the Fifth Circuit reconsiders an appeal from a Fair Labor Standards Act trial and concludes that the merits decision must be almost-entirely withdrawn, owing to the cross-notices of appeal being filed too late.

In the prior opinion, Edwards v. 4JLJ, LLC, No. 19-40553 (5th Cir. Sept. 2, 2020), the panel reviewed cross-appeals from a five-day jury trial of an FLSA overtime case, resulting in a defense verdict. It held, in a 25-page opinion, that the district court erred in part in denying a judgment as a matter of law to the plaintiffs. It also considered, but rejected, the defendant’s appeal of sanctions against it for discovery violations.

The panel also brushed aside a challenge to appellate jurisdiction – raised belatedly during oral argument – on the basis of waiver. The defendant challenged the timing of the notice of appeal, which was indisputably filed beyond the 30-day period provided by Fed. R. App. P. 4. The panel held, under the reasoning of Hamer v. Neighborhood Housing of Services of Chicago, 138 S. Ct. 13 (2017), that because the 30-day notice-filing period was provided by a court rule rather than a statute, it was not a jurisdictional limit on the court’s power and was thus waivable. It also held that by defendant not briefing the issue (it only noted a possible defect in jurisdiction in passing), it waited too late to raise the timing issue and thus forfeited the argument.

But on rehearing, the panel was reminded that the 30-day limit appears in a statute (28 U.S.C. § 2107), and thus “[t]he 30-day deadline is no mere processing rule set by the Supreme Court in Rule 4; it is a jurisdictional rule set by Congress in § 2107. And since ensuring our jurisdiction is ultimately our responsibility, we must eat a bit of jurisdictional crow.” Because the merits appeal and sanctions cross-appeal were both filed too late, the panel vacates its prior decision on those issues. It holds, though, that the defendant’s appeal of the post-judgment cost award under Fed. R. Civ. P. 54 was timely, and affirms the district court’s reduction of costs as within its discretion.

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