A Failure to Timely Cross-Appeal an Issue Is Not Jurisdictional and Thus Objection to Such an Omission Can Be Forfeited, Holds Sixth Circuit

In Georgia-Pacific Consumer Prods. v. NCR Corp., No.18-1806 (6th Cir. July 14, 2022), in an order denying rehearing en banc, the panel amends its original order with an appendix to hold that any objection to a party’s failure to timely cross-appeal from a final judgment does not go to subject-matter jurisdiction, and thus may be forfeited.

“In its petition for rehearing en banc, GP [appellant Georgia-Pacific] argues that [appellee] Weyerhaeuser should have cross-appealed in order to benefit from our ruling against GP on the statute-of-limitations issue . . . . Weyerhaeuser developed a substantial argument in its appellee brief explaining that the statute of limitations barred GP’s claim against Weyerhaeuser as well as against IP and also adopted by reference the stretch of IP’s brief that involved the statute of limitations . . . . But to secure affirmative relief, Weyerhaeuser should have filed a cross-appeal.”

Nevertheless, GP failed to raise this objection on the original appeal, citing it only on the rehearing petition. “Generally, an argument not raised in an appellate brief or at oral argument is forfeited, and may not be raised for the first time in a petition for rehearing . . . . That is what happened here: GP did not object to Weyerhaeuser’s argument in an appellate brief or at oral argument. The specter of forfeiture thus haunts GP’s petition for rehearing en banc.”

GP argued in response that the failure to cross-appeal went to subject-matter jurisdiction and thus could never be waived. “GP’s failure to raise earlier in the proceedings this issue of the asserted need for a cross-appeal will not matter, however, if we conclude that Federal Rule of Appellate Procedure 4(a)(3), which governs [the time to file] cross-appeals, imposes a jurisdictional requirement.”

But the Sixth Circuit holds that the cross-appeal rule does not go to jurisdiction. In recent decades, the “Supreme Court has recognized that ‘Only Congress may determine a lower federal court’s subject-matter jurisdiction.’ Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017) (quoting Kontrick v. Ryan, 540 U.S. 443, 452 (2004)).

The evolving case law on jurisdiction “case law convince[s] us that the narrowing of the term ‘jurisdictional’ has abrogated our court’s earlier cases holding that the cross-appeal requirement goes to our jurisdiction . . . . These earlier decisions improperly ‘held jurisdictional a [requirement] specified in a rule, not in a statute.’ Hamer, 138 S. Ct. at 17. As a result, we hold that compliance with Rule 4(a)(3)’s cross-appeal requirement, although mandatory, is not jurisdictional.”

“True, the Supreme Court has repeatedly discussed the importance of the cross-appeal requirement, often in the loftiest of terms . . . . But although the Court has defined the requirement in such terms, it has also taken pains, time and time again, to make clear that it has not viewed the requirement as jurisdictional . . . . To the contrary, the Court [has] acknowledged that some of its precedent support interpreting the requirement as non-jurisdictional.”

“[W]e do not denigrate or dispute the cross-appeal requirement’s utility, importance, or mandatory nature (when properly invoked). This case presents unusual circumstances . . . . All GP had to do was object that Weyerhaeuser had not preserved a cross-appeal prior to the panel issuing its decision, either in a supplemental brief or at oral argument, and we would have likely enforced the claim-processing rule.”

The Sixth Circuit finally observes (in a footnote) that in circumstances where the objectionable argument is made in a final brief, the party wishing to raise a failure to cross-appeal must still do so by seeking leave to file a supplemental brief or at oral argument to preserve it.  “GP notes that it could not have addressed Weyerhaeuser’s argument in GP’s appellee brief because GP and Weyerhaeuser submitted their appellee briefs on the same day. GP Pet. at 10. Fair enough. But GP could have moved for permission to file a supplemental brief or raised the issue at oral argument.” A valuable practice tip to federal appellate practitioners!

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