Nadia Youkelsone v. FDIC

Filing

OPINION filed [1340566] PER CURIAM OPINION (Pages: 5) [10-5197]

USCA Case #10-5197

Document #1340566

Filed: 11/08/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2011

Decided November 8, 2011

No. 10-5197
NADIA YOUKELSONE,
APPELLANT
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER OF
WASHINGTON MUTUAL BANK,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01278)

Nadia Youkelsone, pro se, argued the cause and filed the
briefs for appellant.
Joseph Brooks, Counsel, argued the cause for appellee.
On the briefs were Colleen J. Boles, Assistant General
Counsel, Lawrence H. Richmond, Senior Counsel, and Jaclyn
C. Taner, Counsel. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Before: TATEL and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.

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PER CURIAM: Plaintiff Nadia Youkelsone carried a
mortgage on her New York house. In 2001, Washington
Mutual Bank (“WaMu”) acquired the note and mortgage and
then assigned it to Federal National Mortgage Association
(“Fannie Mae”). Thereafter, Youkelsone’s home went into
foreclosure, WaMu failed, and the Federal Deposit Insurance
Corporation (“FDIC”) became its receiver.
In 2009, Youkelsone brought this action against the
FDIC, which, for purposes of this litigation, stands in
WaMu’s shoes. Youkelsone alleges that WaMu “owned
and/or serviced the mortgage,” Am. Compl. ¶ 10, and that it
engaged in wrongful conduct in the foreclosure’s aftermath—
for instance by delaying in providing closing documents, id.
¶ 99, and making misrepresentations to the Bankruptcy Court,
id. ¶ 110.
The FDIC moved to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. But never
reaching that issue, the district court sua sponte dismissed the
complaint under Rule 12(b)(1) on the ground that Youkelsone
lacked standing. Youkelsone appeals.
The FDIC now argues that we lack jurisdiction to hear
this appeal because Youkelsone’s notice of appeal was
untimely. The district court entered its final order on March
10, 2010, leaving Youkelsone until May 10 to file a notice of
appeal. See Fed. R. App. P. 4(a)(1)(B) (“When the United
States or its . . . agency is a party, the notice of appeal may be
filed by any party within 60 days after the judgment or order
appealed from is entered.”). Three days before that deadline,
on May 7, Youkelsone requested an extension of time and
attached a proposed notice of appeal to her motion. The
district court extended the deadline until June 10, and
Youkelsone filed her notice of appeal on that date.

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Unfortunately for Youkelsone, the district court’s order ran
afoul of Rule 4(a)(5)(C), which limits any extensions to thirty
days, meaning that the last permissible day would have been
June 9—the day before Youkelsone filed her notice. The
FDIC, however, never challenged the notice’s timeliness in
the district court, nor did it raise the issue in its appellate
brief. But because timing can affect this court’s subject matter
jurisdiction, we raised the issue on our own initiative and
ordered supplemental briefing.
Youkelsone argues that Rule 4(a)(5)(C) is not
jurisdictional because it lacks a statutory basis. Alternatively,
she argues that her May 7 proposed notice, filed well before
Rule 4(a)(5)(C)’s thirty-day deadline, served as a “functional
equivalent” of a notice of appeal. See Smith v. Barry, 502 U.S.
244, 248–49 (1992) (“If a document filed within the time
specified by Rule 4 gives the notice required by Rule 3, it is
effective as a notice of appeal.”). We need not reach the latter
argument because we agree with Youkelsone that the Rule
4(a)(5)(C) time limit is a claim-processing rule, not a
jurisdictional bar, and that the FDIC forfeited its timeliness
objection.
“Only Congress may determine a lower federal court’s
subject-matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443,
452 (2004). Accordingly, only timing rules that have a
statutory basis are jurisdictional. See United States v. Byfield,
522 F.3d 400, 403 n.2 (D.C. Cir. 2008) (per curiam) (holding
that Rule 4(b) “is not jurisdictional because it was judicially
created and has no statutory analogue”). As noted above, Rule
4(a)(5)(C) limits extensions of Rule 4(a)(1) time periods to
thirty days. Although the authority to extend the time
available to file an appeal is codified at 28 U.S.C. § 2107,
Rule 4(a)(5)(C)’s thirty-day limit on the length of any
extension ultimately granted appears nowhere in the U.S.

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Code. Rule 4(a)(5)(C)’s thirty-day limit is thus a claimprocessing rule. Cf. Wilburn v. Robinson, 480 F.3d 1140,
1145 n.9, 1146 n.11 (D.C. Cir. 2007) (distinguishing Rule
4(a)(6) and Rule 4(a)(1)(A), which both implement a statute,
from 4(a)(1)(A)(vi), which “has not been made jurisdictional
by statute” and is thus a claim-processing rule). Objections
based on claim-processing rules “ ‘can . . . be forfeited,’ ” id.
at 1146 (quoting Kontrick, 540 U.S. at 456), and the FDIC
concedes, as it must, that it has forfeited any argument that
Youkelsone’s late filing was improper given that it “did not
challenge the timeliness of the notice of appeal.” FDIC’s
Supp. Br. 3. Timeliness thus poses no bar to our considering
Youkelsone’s appeal.
In the alternative, the FDIC urges us to affirm the district
court’s dismissal on the grounds of standing. According to the
district court, Youkelsone failed to allege causation and
redressability, as her “alleged injuries depend not only on
Washington Mutual’s alleged involvement . . . but also on the
independent intervening actions of Fannie Mae.” Youkelsone
v. FDIC, No. 09-1278, slip op. at 3 (D.D.C. Mar. 10, 2010).
We disagree. Youkelsone alleges actions by WaMu that
themselves caused her injury, and those actions—for which
she seeks damages—injured her regardless of the possible
involvement of other parties in the foreclosure. “[A]n award
of damages would obviously redress [her] injuries.” Ord v.
District of Columbia, 587 F.3d 1136, 1144 (D.C. Cir. 2009).
Youkelsone thus has standing to bring this suit.
The FDIC argues that if we find that Youkelsone has
standing, we should nonetheless affirm the district court
because Youkelsone failed to state a claim under Rule
12(b)(6). But because the district court never addressed the
complaint’s sufficiency, we think it best to leave it to that
court to address the issue in the first instance.

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The decision of the district court is reversed and the case
remanded for further proceedings consistent with this opinion.
So ordered.

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