Georgia-Pacific Consumer Prods. v. NCR Corp. ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0154p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GEORGIA-PACIFIC CONSUMER PRODUCTS LP; FORT
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JAMES CORPORATION; GEORGIA-PACIFIC LLC,
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Plaintiffs-Appellees, │
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> No. 18-1806
v. │
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NCR CORPORATION, │
Defendant, │
│
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WEYERHAEUSER COMPANY, │
Defendant-Appellee, │
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INTERNATIONAL PAPER COMPANY, │
│
Defendant-Appellant. │
┘
On Petition for Rehearing En Banc.
United States District Court for the Western District of Michigan at Grand Rapids;
No. 1:11-cv-00483—Robert J. Jonker, District Judge.
Decided and Filed: July 14, 2022
Before: MOORE, KETHLEDGE, and DONALD, Circuit Judges.
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COUNSEL
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
No. 18-1806 Georgia-Pacific Consumer Prods. et al. v. NCR Corp. et al. Page 2
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.
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ORDER
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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.
No. 18-1806 Georgia-Pacific Consumer Prods. et al. v. NCR Corp. et al. Page 3
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APPENDIX ON PETITION FOR REHEARING
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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 (1999) (quoting United States v. Am. Ry. Express Co.,
265 U.S. 425, 435 (1924)); see also Jennings v. Stephens, 574 U.S. 271, 276 (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
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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 (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., 138 S. Ct. 13, 17 (2017) (quoting
Kontrick v. Ryan, 540 U.S. 443, 452 (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; see id. at 434. Thus, “When Congress passes a statute
that unambiguously restricts the adjudicatory authority of the federal courts, the restriction will
1GP notes that it could not have addressed Weyerhaeuser’s argument in GP’s appellee brief because GP
and Weyerhaeuser submitted their appellee briefs on the same day. GP Pet. at 10. Fair enough. But GP could have
moved for permission to file a supplemental brief or raised the issue at oral argument. Weyerhaeuser’s brief
presented only two arguments, one of which aligned with GP’s position on appeal. GP therefore could not have
failed to notice Weyerhaeuser’s statute-of-limitations argument—it was not hidden away in a footnote, or nestled in
among eight other claims, but rather constituted the second argument, spanning pages 37–43 of Weyerhaeuser’s
brief.
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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
2That is not to say that Weyerhaeuser never expressed an intent to pursue its claims on appeal.
Weyerhaeuser, just like IP, appealed the district-court decision evaluated in this opinion. See Georgia-Pacific
Consumer Prods. v. NCR Corp., No. 18-1858. In 2021, after countless rounds of mediation, Weyerhaeuser
dismissed its appeal, noting that its dismissal “does not affect Weyerhaeuser’s rights or interests in” the instant
matter. A.R. 60, Georgia-Pacific Consumer Prods. v. NCR Corp., No. 18-1858. Although this is not a complete
No. 18-1806 Georgia-Pacific Consumer Prods. et al. v. NCR Corp. et al. Page 6
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
(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 (“[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; El Paso Nat. Gas, 526 U.S. at 480. To the contrary, the Court in Greenlaw acknowledged
that some of its precedent support interpreting the requirement as non-jurisdictional. 554 U.S. at245 (citing Langnes v. Green, 282 U.S. 531, 538 (1931)).
The Supreme Court’s decision in Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988),
also does not change our analysis. There, the Court explained that Rules 3 and 4 comprised
“a single jurisdictional threshold,” and instructed lower courts that they “may not waive the
jurisdictional requirements of Rules 3 and 4.” Id. at 315, 317. But like our holdings in Ford
Motor Credit Co., 717 F.2d at 962–63, and Francis v. Clark Equipment, 993 F.2d at 552–53, this
substitute for filing a cross-appeal, it was yet another data point that should have given GP notice of Weyerhaeuser’s
efforts to pursue its “rights or interests” as an Appellee in this case.
3Indeed, another court of appeals cited Gunter for the same conclusion we reach today: that the
requirement of filing a cross-appeal is a claim-processing rule that can be forfeited. In re IPR Licensing, Inc., 942
F.3d at 1370–71.
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statement predates the Supreme Court’s modern project of reining in the use of the word
“jurisdictional.” Torres, which concerned the filing of an initial notice of appeal and not a notice
of cross-appeal, based its jurisdictional conclusion on “the mandatory nature of the time limits
contained in Rule 4” and the Advisory Committee Note accompanying Rule 3. 487 U.S. at 315.
We adhere today to subsequent Supreme Court decisions clarifying that “mandatory . . . time
limit[s]” in the Federal Rules create jurisdictional requirements only where those limits derive
from acts of Congress. Hamer, 138 S. Ct. at 16–17.
GP cites Burch, 781 F.3d at 344–45, for the proposition that “cross-appeals are
indistinguishable from appeals . . . for purposes of the jurisdictional analysis.” GP Pet. at 5 n.7.
GP argues that because the Supreme Court has held that a notice of appeal is jurisdictionally
required under Rule 4 and 28 U.S.C. § 2107, Bowles v. Russell, 551 U.S. 205, 209–10 (2007),
notices of cross-appeal must be similarly required to provide a court’s jurisdiction. But Bowles
concerned a requirement imposed by statute—the 30-day requirement for a party to file a notice
of appeal, see 28 U.S.C. § 2107(a), which the district court can extend for up to 14 days under 28
U.S.C. § 2107(c). Bowles, 551 U.S. at 213. Bowles did not address cross-appeals, and as
discussed supra, § 2107 does not reference cross-appeals. Burch is also crucially distinguishable
from this case because in Burch, the failure to cross-appeal was presented to the court, and so the
argument was not forfeited. Resp. to Mot. to Dismiss at 2, United States v. Burch, 781 F.3d 342(6th Cir. 2015) (No. 14-6232). As a result, when Burch described the cross-appeal requirement
as “mandatory and consistently followed,” it meant that courts enforce the requirement whenever
raised. 781 F.3d at 345.4
Finally, we recognize that two recent unpublished panel opinions in our circuit have cited
our older caselaw calling the cross-appeal requirement jurisdictional. Portnoy v. Nat’l Credit
Sys., Inc., 837 F. App’x 364, 372–73 (6th Cir. 2020); Wiggins v. Ocwen Loan Servicing, LLC,
722 F. App’x 415, 419 (6th Cir. 2018). These unpublished opinions do not bind us, and, as
explained supra, we believe that intervening Supreme Court precedent has overruled the
determinations on which they rely.
4Hamer similarly uses the phrase “mandatory claim-processing rules” when discussing rules the
application of which can be forfeited. 138 S. Ct. at 17.
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The cross-appeal requirement is not jurisdictional, making it a claim-processing rule
forfeitable when no party raises it. GP did not raise Weyerhaeuser’s failure to file a cross-appeal
at the proper time, and we will not consider the argument now. See United States v.
Montgomery, 969 F.3d 582, 583 (6th Cir. 2020) (Order on panel rehearing). “Because
Weyerhaeuser is in the same factual position as IP for purposes of the statute-of-limitations
issue,” Georgia-Pacific Consumer Prods. LP v. NCR Corp., 32 F.4th 534, 547 (6th Cir. 2022),
and because GP was on notice that Weyerhaeuser sought to benefit from a ruling benefitting IP,
we granted Weyerhaeuser relief to “coherent[ly] dispos[e] of [the] entire case.” 16A Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3904 (5th ed. 2022).
As a final note, we do not denigrate or dispute the cross-appeal requirement’s utility,
importance, or mandatory nature (when properly invoked). This case presents unusual
circumstances: “Th[e] distinction between jurisdictional and mandatory rules will not matter in
many cases. After all, a court generally must enforce a mandatory rule (just as much as a
jurisdictional one) when a party properly invokes it.” Saleh v. Barr, 795 F. App’x 410, 424 (6th
Cir. 2019) (Murphy, J., concurring); see also Cuevas-Nuno v. Barr, 969 F.3d 331, 334 n.2 (6th
Cir. 2020). All GP had to do was object that Weyerhaeuser had not preserved a cross-appeal
prior to the panel issuing its decision, either in a supplemental brief or at oral argument, 5 and we
would have likely enforced the claim-processing rule.
II. We Adhere to Our Decision Not to Rule on the Secured Creditor Defense
GP also faults the panel’s original opinion for failing to address IP’s argument that IP fell
within CERCLA’s secured-creditor exception, and seeks panel rehearing on the issue. GP Pet. at
11–15. We deny the motion for panel rehearing. IP’s brief presented the secured-creditor issue
as an “Alternative[]” avenue through which to reverse the district court’s decision. IP Br. at 64.
GP never, in its briefing or at oral argument, disputed IP’s presentation of the issue as an
5We recognize that precedents of our court indicate that arguments “raised for the first time at oral
argument” can be forfeited. Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (en banc) (addressing
argument raised by amicus for the first time at en banc oral argument). But “exceptions abound” to that rule.
Huntington Nat’l Bank, 574 F.3d at 331. Had GP objected at oral argument to Weyerhaeuser’s failure to file a
cross-appeal, the fact that GP and Weyerhaeuser submitted their briefs on the same day would have counseled in
favor of excusing GP’s failure to present the issue in a brief.
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alternative one. As a result, we adhere to our conclusion in the panel opinion that, having
resolved one of the alternative bases for reversal, we need not consider the other.
ENTERED BY ORDER OF THE COURT
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Deborah S. Hunt, Clerk