Georgia-Pacific Consumer Prods. v. NCR Corp.

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, │

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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. at

245 (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.

No. 18-1806 Georgia-Pacific Consumer Prods. et al. v. NCR Corp. et al. Page 9

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