Untimely Appeal Case Analysis

Listen to this article

The decision is coincidentally timed in the Seventh Circuit. Just two days earlier, a panel of the appellate court predicted the imminent demise of the “unique circumstances” doctrine.

The doctrine was once “well-established” in the Seventh Circuit. Varhol v. National Railroad Passenger Corp., 909 F.2d 1557, 1562 (7th Cir. 1990).

But, in Varhol, it received extensive criticism.

The Seventh Circuit allowed an appellant additional time to file a notice of appeal, because it found the party had relied on an order of the district court, purporting to do that, even though the district court lacked authority to do so.

In an en banc opinion, the Seventh Circuit gave deference to the decision of the lower court, and accepted jurisdiction over the case. Id., at 1564.

Although the decision in Varhol was a unanimous per curiam decision, it produced two concurrences — one embracing the reasoning behind the unique circumstances doctrine, and the other — a six-judge concurrence written by Judge Daniel Manion — adamantly rejecting it (but concurring nonetheless pursuant to binding precedent).

	Related Article Supreme Court nixes unique circumstances

On June 12 of this year, however, the court decided a case in which the doctrine was at issue, and interpreted the doctrine very narrowly, dismissing an appeal, even though the appellant may have relied on a district court’s order extending his time to appeal. Robinson v. City of Harvey, — F.3d —, 2007 WL 1671685 (7th Cir., June 12, 2007).

The Seventh Circuit dismissed the appeal, holding the doctrine inapplicable to extensions of time to allow a party to make a Rule 59 motion.

In addition, the court went further than merely distinguishing Varhol and other cases in which the doctrine has been applied.

Citing the Manion concurrence in Varhol, and a dissenting opinion written by Justice Scalia in Houston v. Lack, 487 U.S. 266, 282 (1988), the court endorsed the following conclusion expressed in 16A Wright, Miller & Cooper, Federal Practice and Procedure 3950.3 (3d ed.supp.2006): “the ‘unique circumstances’ doctrine is, at best, on life support.”

Just two days later, the Supreme Court issued the decision in the case at bar, officially pulling the plug.

Click here for Main Story.

David Ziemer can be reached by email.