Ga.-Pac. Consumer Prods. LP v. NCR Corp.

40 F.4th 481

GEORGIA-PACIFIC CONSUMER PRODUCTS LP; Fort James Corporation; Georgia-Pacific LLC, Plaintiffs-Appellees,

v.NCR CORPORATION, Defendant,Weyerhaeuser Company, Defendant-Appellee,International Paper Company, Defendant-Appellant.

No. 18-1806

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 14, 2022

ON PETITION FOR REHEARING EN BANC: Michael R. Shebelskie, Douglas M. Garrou, George P. Sibley, III, J. Pierce Lamberson, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, Peter A. Smit, VARNUM LLP, Grand Rapids, Michigan, for Georgia-Pacific Appellees. ON RESPONSE: Mark W. Schneider, Kathleen M. O'Sullivan, Margaret C. Hupp, PERKINS COIE LLP, Seattle, Washington, Scott M. Watson, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellee Weyerhaeuser Company. John D. Parker, BAKER & HOSTETLER LLP, Cleveland, Ohio, Ryan D. Fischbach, BAKER & HOSTETLER LLP, Los Angeles, California, John F. Cermak, Jr., Sonja A. Inglin, CERMAK & INGLIN LLP, Los Angeles, California, David W. Centner, CLARK HILL PLC, Grand Rapids, Michigan, for Appellant International Paper Company.

Before: MOORE, KETHLEDGE, and DONALD, Circuit Judges.

ORDER

On Petition for Rehearing En Banc.

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing, has addressed the issues therein in an Appendix to the original panel opinion, and has concluded that rehearing is unnecessary. Upon circulation of the petition and the Appendix to the full court, no judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

APPENDIX ON PETITION FOR REHEARING

GP has petitioned for rehearing en banc on one issue and panel rehearing on another. We DENY the petition and add the following as an Appendix to the original opinion.

I. Weyerhaeuser Should Have Cross-Appealed, But GP Forfeited the Argument

In its petition for rehearing en banc, GP argues that Weyerhaeuser should have cross-appealed in order to benefit from our ruling against GP on the statute-of-limitations issue. GP Pet. at 3–11. 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. Weyerhaeuser Br. at 37–43. But to secure affirmative relief, Weyerhaeuser should have filed a cross-appeal. Absent a cross-appeal, an appellee "may not ‘attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.’ " El Paso Nat. Gas Co. v. Neztsosie , 526 U.S. 473, 479, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999) (quoting United States v. Am. Ry. Express Co. , 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924) ); see also Jennings v. Stephens , 574 U.S. 271, 276, 135 S.Ct. 793, 190 L.Ed.2d 662 (2015) ; United States v. Burch , 781 F.3d 342, 344 (6th Cir. 2015) (Order). Because Weyerhaeuser asked this court to "apply [a favorable] statute-of-limitations ruling to" provide relief beyond the district court's determination, Weyerhaeuser Br. at 41, Weyerhaeuser sought to enlarge its own rights, and a cross-appeal should have been taken.

Weyerhaeuser's failure to cross-appeal does not end our analysis, however. 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. United States v. Huntington Nat'l Bank , 574 F.3d 329, 331 (6th Cir. 2009) ; Costo v. United States , 922 F.2d 302, 302–03 (6th Cir. 1990) (Order). That is what happened here: GP did not object to Weyerhaeuser's argument in an appellate brief¹ or at oral argument. The specter of forfeiture thus haunts GP's petition for rehearing en banc.

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 cross-appeals, imposes a jurisdictional requirement. "Branding a rule as going to a court's subject-matter jurisdiction alters the normal operation of our adversarial system." Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). One such alteration: objections to a court's subject-matter jurisdiction "may be raised at any time." Id. For decades, this circuit has held that the cross-appeal requirement is jurisdictional. United States v. Archibald , 685 F.3d 553, 556 (6th Cir. 2012) ; Bennett v. Krakowski , 671 F.3d 553, 558 (6th Cir. 2011) ; Francis v. Clark Equip. Co. , 993 F.2d 545, 552–53 (6th Cir. 1993) ; Ford Motor Credit Co. v. Aetna Cas. & Sur. Co. , 717 F.2d 959, 962–63 (6th Cir. 1983).

But times have changed. "Over the last twenty years, one Supreme Court decision after another instructs the lower courts to be more judicious about labeling deadlines jurisdictional." Gunter v. Bemis Co. , 906 F.3d 484, 492–93 (6th Cir. 2018). This is because 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. , ––– U.S. ––––, 138 S. Ct. 13, 17, 199 L.Ed.2d 249 (2017) (quoting Kontrick v. Ryan , 540 U.S. 443, 452, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ). As a result, "a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time." Id. "[R]ules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times" qualify as mandatory claim-processing rules, and although they "promote the orderly progress of litigation," they may be forfeited if no party raises them. Henderson , 562 U.S. at 435, 131 S.Ct. 1197 ; see id. at 434, 131 S.Ct. 1197. Thus, "When Congress passes a statute that unambiguously restricts the adjudicatory authority of the federal courts, the restriction will be treated as jurisdictional. ... Otherwise, the restriction will be treated as mandatory but not jurisdictional." Maxwell v. Dodd , 662 F.3d 418, 421 (6th Cir. 2011).

Our court recently applied this new regime to the cross-appeal rule. In Gunter v. Bemis Co. , we evaluated whether Federal Rule of Appellate Procedure 4(a)(3) ’s timing requirements on cross-appeals were jurisdictional, or merely claim-processing rules. 906 F.3d at 492–93. An earlier panel denied jurisdictional status to requirements imposed by "federal rules ... promulgated in accordance with the Rules Enabling Act, which does not by itself give the rules jurisdictional effect." Maxwell , 662 F.3d at 421. We then concluded in Gunter that "[b]ecause Congress has not clearly required a timely notice of cross-appeal for a court to exercise jurisdiction over it, Federal Appellate Rule 4(a)(3) establishes only a mandatory claim-processing rule, not a limit on our jurisdiction." 906 F.3d at 492–93 ; see also Mathias v. Superintendent Frackville SCI , 876 F.3d 462, 470 (3d Cir. 2017) (concluding that Rule 4(a)(3) is not jurisdictional because it "is not a creature of statute, but a court-promulgated rule"); 16A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3950.7 (5th ed. 2022).

Gunter and the Supreme Court's recent case law convince 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. See Rutherford v. Columbia Gas , 575 F.3d 616, 619 (6th Cir. 2009). 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. See 16A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3904 (5th ed. 2022) (embracing this approach); Mathias , 876 F.3d at 471–72.

There is one distinction between our case and Gunter worth noting. In Gunter , a party cross-appealed outside of 28 U.S.C. § 2107 ’s window for filing a notice of appeal; here, Weyerhaeuser filed no notice or motion for cross-appeal at all.² But this distinction carries with it no difference. As discussed above, we decide whether a requirement qualifies as jurisdictional by considering whether Congress has imposed the relevant limit on the court's jurisdiction. Hamer , 138 S. Ct. at 17. And no statute speaks of a cross-appeal requirement. Mathias , 876 F.3d at 470. As evidence of this, many courts of appeals have long considered the cross-appeal rule to be a non-jurisdictional "rule of practice," not a statutory command. See, e.g. , id. at 472 ; In re IPR Licensing, Inc. , 942 F.3d 1363, 1370–71 (Fed. Cir. 2019) ; Mendocino Env't Ctr. v. Mendocino County , 192 F.3d 1283, 1298 & nn.27, 28 (9th Cir. 1999) (collecting cases). Additionally, Gunter does not limit its holding to Rule 4(a)(3) ’s 14-day deadline, instead referring to the rule in toto as nonjurisdictional. 906 F.3d at 493.³

True, the Supreme Court has repeatedly discussed the importance of the cross-appeal requirement, often in the loftiest of terms.

Greenlaw v. United States , 554 U.S. 237, 244–45, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ("This Court, from its earliest years, has recognized that it takes a cross-appeal to justify a remedy in favor of an appellee."); El Paso Nat. Gas , 526 U.S. at 480, 119 S.Ct. 1430 ("[I]n more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of [the Supreme Court's holdings] has ever recognized an exception to the [cross-appeal] rule."). 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. Greenlaw , 554 U.S. at 245, 128 S.Ct. 2559 ; El Paso Nat. Gas , 526 U.S. at 480, 119 S.Ct. 1430. To the...