Lessons learned on late notice of appeal

This one is short but not so sweet. Federal practitioners know that you have 30 days to file a notice of appeal. Thirty days is 30 days. Not 31 days.

The case is Martinez v. O'Leary, a summary order issued on June 18. The plaintiff was a public employee who sued the Corrections Department under the Due Process Clause. The district court dismissed the case on summary judgment. Judgment was entered on July 3, 2013. The notice of appeal was filed on August 3, 2013. At first glance, that looks like 30 days. But it's not. The month of July has 31 days, so July 3 to August 3 is actually 31 days. The deadline was August 2.

The 30 day deadline is jurisdictional, so the appeal is untimely. There are exceptions to this rule, such as when someone files a post-trial motion with the district court. See, Federal Rules of Appellate Procedure 4(a)(1)(A). But none of those exceptions apply here. The case does not get decided on the merits because the notice of appeal was filed a day late and a dollar short.

This jurisdictional issue was flagged by the City of New York at the last minute, right before oral argument, when a City lawyer told the Court of Appeals about the deadline problem. Plaintiff's counsel immediately responded with a letter to the Court, stating:

From counsel’s recollection, counsel for the Appellant accessed the District Court’s ECF filing system approximately 10 to 15 minutes prior to midnight on August 2, 2013 for purposes of filing Appellant’s appeal. Any delays in so filing the appeal were delays caused by the ECF filing system itself such that the notice of appeal ended up being filed the stroke of midnight or immediately after midnight. The inability to get the notice of appeal filed prior to midnight, as a result of delays with the ECF filing system are tantamount to the Clerk’s Office being inaccessible. Such electronic delay creates unique circumstances, dictating that equity, mandates that this Court not dismiss the appeal. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989).

Talk about waiting until the last minute! Counsel intended to file the notice of appeal within 30 days but something went wrong in the electronic filing system and the notice went through right after midnight. (Counsel also argued that the 30-day deadline did not start to run until the day after judgment was entered, which was July 4, a national holiday, which also doesn't count in the 30 day calculus). Lawyers are not always responsible for filing problems like this, but the Court of Appeals rejected this excuse and dismissed the appeal entirely.

What lessons do we learn from this? Don't file jurisdictional documents at the last minute. I always assume something might go wrong with the Post Office or the electronic filing system. Imagine the panic when something is due by midnight and the ECF system shuts down for some God-forsaken reason. File it early.