Walker v. Weatherspoon

• Decision Date: 13 August 2018
• Docket Number: No. 17-2665,17-2665
• Citation: 900 F.3d 354
• Parties: Katrina WALKER, Plaintiff-Appellant, v. Carl WEATHERSPOON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

900 F.3d 354

Katrina WALKER, Plaintiff-Appellant,

v.Carl WEATHERSPOON, et al., Defendants-Appellees.

No. 17-2665

United States Court of Appeals, Seventh Circuit.

Argued April 24, 2018

Decided August 13, 2018

Kenneth N. Flaxman, Joel A. Flaxman, Attorneys, LAW OFFICE OF KENNETH N. FLAXMAN P.C., Chicago, IL, for Plaintiff-Appellant.

Irina Y. Dmitrieva, Myriam Z. Kasper, Attorneys, OFFICE OF THE CORPORATION COUNSEL, Appeals Division, Chicago, IL, Graham P. Miller, Attorney, BORKAN & SCAHILL, LTD., Chicago, IL, for Defendants-Appellees.

Before Bauer, Easterbrook, and Kanne, Circuit Judges.

Easterbrook, Circuit Judge.

On March 31, 2016, when this suit was three and a half years old, the district court entered an order granting summary judgment to defendants "[f]or the reasons stated in the Memorandum Opinion and Order to follow". More than 16 months passed before the judge released her opinion, 2017 U.S. Dist. LEXIS 129182 (N.D. Ill. Aug. 15, 2017), and plaintiff appealed that day. A judgment under Fed. R. Civ. P. 58 was entered on August 16.

This appeal came many months too late under Fed. R. App. P. 4(a)(7)(A)(ii), which says that a judgment is deemed to be entered on the earlier of the Rule 58 judgment or 150 days after a dispositive order is entered on the civil docket. Until Rule 4(a)(7)(A)(ii) was adopted in 2002 the losing side always could wait for the entry of the formal judgment. See United States v. Indrelunas , 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) ; Carter v. Hodge , 726 F.3d 917, 919–20 (7th Cir. 2013). The new rule supersedes Indrelunas by deeming the judgment to have been entered 150 days after a dispositive order that does not amount to a proper judgment.

A district judge who announces a final decision yet postpones issuing the opinion sets a trap for the losing side, because a plan to provide an explanation does not delay the date of decision. See United States v. Bradley , 882 F.3d 390, 394 (2d Cir. 2018). Most litigants who represent themselves, and many lawyers, are unaware of Rule 4(a)(7)(A)(ii) and think that they can wait for the entry of judgment. Litigants can protect themselves—for example, the loser may file a notice of appeal and ask the court of appeals to defer briefing until the district court has released its opinion. But judges should not expose litigants to the risk that they will miss the need for self-protective steps. See, e.g., Otis v. Chicago , 29 F.3d 1159, 1163, 1167–68 (7th Cir. 1994) (en banc). Except when there is a need for speedy announcement of the outcome, the opinion should accompany the decision. This is not a suit in which rapid decision was essential, so a deferred opinion was unjustified. And when there is a justification for announcing a decision in advance of an opinion, issuing the opinion should be the district judge’s top priority. Deferring the opinion until after the time allowed by Rule 4(a)(7)(A)(ii) is never appropriate, as it can spell disaster for a litigant not versed in the appellate rules.

As it happens, however, this appeal has been saved by the fact that until recently everyone missed the significance of Rule 4(a)(7)(A)(ii).

The only jurisdictional requirement is the need for an appeal within 30 days of the judgment or an extension. See 28 U.S.C. § 2107 ; Bowles v. Russell , 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Hamer v. Neighborhood Housing Services of Chicago , ––– U.S. ––––, 138 S.Ct. 13, 199 L.Ed.2d 249 (2017), tells us that supplemental or implementing provisions in the Rules of Appellate Procedure are not jurisdictional. Hamer concerned Rule 4(a)(5)(C) ; its holding applies equally to Rule 4(a)(7)(A)(ii).

Although the Rules of Appellate Procedure are not jurisdictional, they remain mandatory. We must apply them if properly invoked. The "properly invoked" qualifier is important, for a litigant may waive or forfeit the benefit of these rules. We held on remand in Hamer that the appellees waived the benefit of Rule 4(a)(5)(C) by representing in their docketing statement that the appeal was timely.

Hamer v. Neighborhood Housing Services of Chicago , No. 15-3764, 897 F.3d 835, 836–38, 2018 WL 3615845 (7th Cir. July 30, 2018). Appellees in this case did not do that, but they came close—close enough to forfeit their rights under Rule 4(a)(7)(A)(ii).

The jurisdictional section of appellees’ brief in this court says (some citations omitted):

On March 31, 2016, the district court issued a minute order granting defendants’ motion for summary judgment on all of Walker’s claims. On August 15, 2017, the district court issued its memorandum opinion and order setting forth the reasons for its grant of summary judgment in defendants’ favor. On the same day, Walker filed her notice of appeal. The judgment was entered on August 16, 2017. A premature notice of appeal is treated as filed on the date the judgment is entered. Fed. R. App. P. 4(a)(2). This court has jurisdiction over this appeal from the final decision of the district court disposing of all claims against all parties under 28 U.S.C. § 1291.

By treating the appeal as early rather than late, appellees relinquished the benefit of Rule 4(a)(7)(A)(ii).

After the appellees filed their brief, this court alerted the parties to a problem with the appeal’s timing. Once we did so, appellees filed a supplemental jurisdictional statement asserting that the appeal is late. And so it is—but because, under Hamer , the benefit of Rule 4 may be waived or forfeited, appellees’ belated invocation of the Rule is unavailing. Indrelunas shows that the appeal is jurisdictionally timely, and no more is needed when the litigants do not notice other problems until after the briefs have been filed.

Enforcing waivers and forfeitures gives litigants incentives to explore issues themselves rather than wait for the court to do the work. It is best to have defects detected in time to dismiss the appeal without the need for briefs and argument. Because no one paid attention to Rule 4(a)(7)(A)(ii) until the briefs had been filed and argument scheduled, it was too late to save time and effort; instead the appellees’ belated invocation of Rule 4(a)(7)(A)(ii) just complicated the appeal.

This brings us to the merits. Police arrived at Katrina Walker’s house with a warrant authorizing them to search for heroin and "T," a drug dealer. The warrant was supported by information from "J. Doe," a drug user whose source was T (who Doe knew by sight and street name rather than full name). Doe told police that for the previous six months she regularly bought heroin from T in the living room of a house, which she knew by sight rather than street address. She identified the house while driving with the police. Police prepared an application for a search warrant and took Doe with them when presenting the application to a state judge. After placing Doe under oath, the judge asked her several questions, believed Doe’s answers, and issued the warrant.

Executing the warrant, officers found Walker but not T. The house was a mess; one officer attested (without contradiction) that it had the appearance of a place from which drugs were sold. Walker told the officers that she had a gun but could not remember where it was. The search for this gun, drugs, and evidence that T did (or didn’t) live in the house took between 90 minutes and 2 hours. The officers left without drugs or evidence of T’s whereabouts, and Walker then filed this suit under 42 U.S.C. § 1983. She contends that the warrant was not supported by probable cause and...