Wednesday, November 4, 2015

Notice of Appeal is dollar short and one day late

If you are doing a Google search on notices of appeal and come upon this blog post, and if you ignore everything else that I say, please know this: the deadlines for filing a notice of appeal are jurisdictional and for the most part will not be extended and if you blow the deadline your case is over and that is that. This case drives that point home.

The case is Franklin v. McHugh, decided on October 30. This appears to be an employment case. But the Court of Appeals does not reach the merits; it focuses on the notice of appeal deadline. Plaintiff had until October 27, 2014 to file that notice. He tried to do so on October 23, using the ECF electronic filing system used by the federal courts. So far, so good. Plaintiff does this a week before the deadline runs out. But something went wrong with the ECF system. Although he got a receipt for timely paying the filing fee, the notice of appeal was not docketed. On October 28, the EDNY clerk's office told plaintiff's lawyer to refile the documents and pay the fee again. He did so on October 28, one day after the deadline.

It may seem unfair for plaintiff to lose this appeal on a technical defect stemming from the non-filing of his notice of appeal that was not his fault but the ECF system's fault. But the Court of Appeals (Kearse, Livingston and Carney) notes the EDNY electronic filing User's Guide "plainly implies" that an electronic filing is not complete until the last screen, called "Notice of Electronic Filing" appears on the user's computer.  Yet, while counsel intended to timely file a notice of appeal, he did not actually do so because he did not follow through on the electronic filing process. Here is how the Second Circuit sees it:

 Here, although Franklin’s counsel undoubtedly intended to file a notice of appeal electronically on October 23, 2014, his efforts fell short of the mark. His account of his attempt to file electronically a notice of appeal on October 23 suggests strongly that counsel simply overlooked the last step of the process: he appears to have followed the electronic filing process through the fee‐paying stage only, stopping upon receiving the receipt for payment. He does not represent that he proceeded past that point or that he received the critical Notice of Electronic Filing screen; and he appears to have failed at the time to notice the shortcoming.

As described in the User’s Guide, only the appearance of the Notice of Electronic Filing screen would have confirmed that the notice of appeal was actually filed and docketed. The notice of appeal therefore was not “filed” with the Eastern District’s Clerk’s Office on October 23, and our Court is not at liberty to treat it as having been filed then. Rather, the record is plain that the notice was filed—untimely—on October 28, 2014.
 The Court of Appeals recognizes that the ECF system may present challenges for counsel, "but counsel have long been charged with becoming familiar and complying with the various local rules of our courts. The clerk's offices willingly make themselves available to answer questions and to assist counsel in meeting deadlines and filing documents that comport with applicable rules, and the courts offer training" on ECF procedures. While a true ECF malfunction may be overlooked in excusing a late filing if the party files a motion for a late filing under Federal Appellate Rule 4(a)(5)(A) under the "excusable neglect or good cause" rule, plaintiff's counsel did not seek that relief in this case.

So what have we learned in this case? That 30-day filing rule for notices of appeal will normally not be extended. Don't wait until the last minute to file it, and don't wait too long to ensure the filing was registered in the system. And if something goes afoul, file a motion under Fed. R. App. Proc. 4(a)(5)(A). If the plaintiff cannot get a break under these circumstances, then no one can.

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