Franklin v. McHugh
804 F.3d 627
| 2d Cir. | 2015Background
- Franklin, a retired Lt. Col., sued the Secretary of the Army in E.D.N.Y. seeking correction of military records; the district court dismissed for lack of subject-matter jurisdiction on August 28, 2014, and entered judgment the same day.
- Because a U.S. officer was a party, Franklin had 60 days (until October 27, 2014) to file a notice of appeal.
- Franklin’s counsel, Port, attempted to file the notice of appeal via CM/ECF on October 23, 2014, uploaded documents, and paid the $505 fee via pay.gov, receiving a payment receipt that day.
- The CM/ECF system, however, did not show the filing on the district docket on October 23; the notice did not appear on the docket until Port refiled and paid again on October 28.
- The Secretary moved to dismiss the appeal as untimely; Franklin argued the October 23 attempt (and payment) constituted a timely filing, or alternatively sought remand to determine timeliness.
- The Second Circuit held that under the Eastern District’s local CM/ECF rules a filing is not complete until the system generates the Notice of Electronic Filing (NEF); because Port did not receive the NEF on October 23, the notice was filed only on October 28 and was therefore untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a notice of appeal was "filed" on Oct. 23 when counsel uploaded documents and paid fee but did not receive a CM/ECF Notice of Electronic Filing | Franklin: the Oct. 23 upload and pay.gov receipt show timely filing | Secretary: filing was not complete until docketed/NEF issued; only the Oct. 28 docketing counts | Held: Not filed on Oct. 23; filing complete on Oct. 28 (untimely) |
| Whether appellate court may treat the Oct. 23 attempt as timely despite lack of NEF | Franklin: court should deem attempt timely or remand district court to decide | Secretary: court must apply local rules and Bowles; no equitable exceptions | Held: No; Bowles precludes equitable exceptions; remand denied as moot |
| Whether alleged CM/ECF malfunction or clerk office assurances excuse late filing | Franklin: system issues and clerk’s alleged assurance show timely submission | Secretary: plaintiff bears burden; unsupported hearsay and fee receipt insufficient | Held: Unsupported assertions insufficient; counsel must follow filing rules |
| Whether district court could have extended filing time after Oct. 28 | Franklin: alternative relief via district court could salvage appeal | Secretary: procedural default absent timely motion | Held: Rule 4(a)(5) could allow extension, but Franklin did not timely seek it; appellate jurisdiction lacking |
Key Cases Cited
- Ray Haluch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773 (2014) (timely filing requirement is jurisdictional)
- Bowles v. Russell, 551 U.S. 205 (2007) (time limits for appeals are jurisdictional; courts cannot create equitable exceptions)
- Perez v. AC Roosevelt Food Corp., 744 F.3d 39 (2d Cir. 2013) (timely notice of appeal is jurisdictional for the court of appeals)