The U.S. Court of Appeals for the Seventh Circuit’s decision toward the end of last year in Groves v. United States, 941 F.3d 315 (7th Cir. 2019), is quite unusual. It repudiates a long-standing Seventh Circuit precedent regarding the timeliness of interlocutory appeals sought under 28 U.S.C. Section 1292(b). It disagrees with the unanimous case law on the subject from nine other circuits. And it does so even though neither party argued for that result. Yet the Groves decision drew nary a whisper of objection from any member of the panel hearing the appeal or any of the other Seventh Circuit judges. What explains the unusual result in Groves? The answer is recent Supreme Court rulings addressing the timeliness of other kinds of appeals. Guided by those rulings, Groves holds that the 10-day period for asking the court of appeals to accept a Section 1292(b) appeal is jurisdictional and cannot be restarted by a district court’s re-entry of the order certifying issues for interlocutory appeal.
Groves arose out of a suit challenging an IRS tax penalty. After the district court rejected Mr. Groves’ statute-of-limitations arguments, it certified the orders doing so for interlocutory review, as 28 U.S.C.Section 1292(b) permits. But a Section 1292(b) appeal cannot proceed until the court of appeals exercises its discretion to permit the appeal. And a court of appeals may not permit a Section 1292(b) appeal unless an “application is made to it within ten days after the entry of the order” containing the district court’s certification. Mr. Groves therefore tried to email an application for review to the Seventh Circuit Clerk’s Office on the tenth day after the certification order. A paralegal mistyped the email address, however, so the application was not received at that time. Two days later, the paralegal noticed the mistake and sent the application to the correct email address. The next day, Mr. Groves explained the situation to the district judge and persuaded him to reenter the certification order. Mr. Groves then refiled his application the following day.
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