Franklin v. McHughFranklin v. McHugh
APPEAL DISMISSED.
Peter J. Tomao, Esq., Garden City, NY, for Appellant Luther Franklin.
Jolie Apicella, Assistant United States Attorney, for Kelly T. Currie, Acting United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee John McHugh.
SUSAN L. CARNEY, Circuit Judge:
In this action against John McHugh, Secretary of the United States Army, Luther Franklin seeks to appeal from the August 28, 2014 judgment of the United States District Court for the Eastern District of New York (Townes, J.) dismissing his complaint for lack of subject matter jurisdiction. The Secretary moves to dismiss the appeal for lack of appellate jurisdiction, contending that Franklin‘s notice of appeal was untimely filed. Franklin cross-moves for leave to correct his brief on appeal to reflect the date on which he first attempted to file a notice of
BACKGROUND
Franklin, a retired Lieutenant Colonel in the United States Army Reserve, filed his complaint in this action in the United States District Court for the Eastern District of New York on February 5, 2013, seeking correction of his military records, a retroactive promotion, and back pay. On August 28, 2014, the District Court filed a memorandum and order granting the Secretary‘s motion to dismiss the action for lack of subject matter jurisdiction. The Clerk‘s judgment was docketed on August 28, 2014, as reflected on the District Court‘s electronic docket sheet. App. 3-4. Because a United States officer was a party to the action, Franklin had until 60 days after entry of the judgment—until October 27, 2014—to file a notice of appeal. See
As Port acknowledges, however, the CM/ECF system did not register the notice of appeal on the court docket on October 23 or, indeed, on any day from then through October 27. Rather, on October 28, after Port learned that the District Court docket sheet (operated through CM/ECF) did not reflect the notice
On January 5, 2015, the Secretary moved to dismiss the appeal as untimely filed.3 Franklin cross-moved for leave to correct his appellate brief by amending it to assert that the notice of appeal was “filed” on October 23, 2014, or, in the alternative, for remand to the District Court for that court to determine the date of the notice‘s filing. In opposition to the Secretary‘s motion and in support of his own, Franklin argues principally that his notice of appeal was timely filed on October 23, 2014, when he attempted to file it and paid the required fee,
DISCUSSION
A. The jurisdictional import of timely filing
The timely filing of a notice of appeal in a civil case is a prerequisite to the appellate court‘s jurisdiction. See Ray Haluch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773, 779 (2014); Bowles v. Russell, 551 U.S. 205, 214 (2007) (”Bowles“); Perez v. AC Roosevelt Food Corp., 744 F.3d 39, 41 (2d Cir. 2013). As the Supreme Court observed in Bowles in 2007, “[T]ime limits for filing a notice of appeal have been treated as jurisdictional in American law for well over a century.” 551 U.S. at 209 n.2. Like other jurisdictional requirements, the timely filing mandate is not subject to judicially created equitable exceptions, see id. at 214 (observing that the Supreme Court “has no authority to create equitable exceptions to jurisdictional requirements“).
The Federal Rules of Civil Procedure permit a court to allow for electronic filing. See
In the Eastern District, electronic filing has been mandatory in counseled civil cases since 2004. See In re: Electronic Case Filing, Admin. Order 2004-08 (E.D.N.Y. June 22, 2004) (“Beginning on August 2, 2004, electronic case filing will be mandatory for all civil cases other than pro se cases . . . .“). With respect to the details of the electronic filing requirements, the Joint Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York direct “[p]arties serving and filing papers [to] follow the instructions regarding Electronic Case Filing (ECF) published on the website of each respective Court.”
The Eastern District publishes its instructions for electronic filing in that court‘s CM/ECF User‘s Guide, available on its website. As relevant here, it instructs:
Upon completion of an electronic filing the last screen you see is a Notice [o]f Electronic Filing screen. This screen will tell you, among other things, the document number assigned to your document; will contain your electronic file stamp; and, at the bottom of the page, will notify you that a notice will be, or will not be, electronically mailed to counsel.
cm/ECF User‘s Guide, at 8, United States District Court for the Eastern District of New York (July 14, 2014) (“User‘s Guide“), https://www.nyed.uscourts.gov/forms/cmecf-user-manual.
Although the Eastern District‘s instruction could have been more explicit,4 it plainly implies that “an electronic filing” is not “complet[e]” until “the last screen,” called “Notice of Electronic Filing,” appears on the user‘s computer.
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
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.
Franklin submits no evidence that would permit a different conclusion. His counsel concedes that “the ECF system did not register on the court docket the filing” that he attempted on October 23. Port Decl. ¶ 5 (ECF No. 51 at *5). Although Franklin presents his receipt for payment of the filing fee dated October 23, the Eastern District‘s Local Rules provide no basis for construing that payment—made through an external website, and merely an intermediate step in the filing process—as “delivery” of a notice of appeal to the Clerk‘s Office. Although Port states that “[his] office” had a later conversation with the Clerk‘s Office, and he suggests that the Clerk‘s Office indicated to “[his] office” that the lack of docketing of his October 23 filing was “due to issues with the ECF system,” (Port Decl. ¶ 7) neither Port‘s proffer of that hearsay, conclusory
We certainly recognize that the implementation and updating from time to time of new, multilayered electronic-filing systems—ones that may vary from court system to court system—will present challenges for counsel, especially at early phases of their use. See generally N.Y. County Lawyers’ Ass‘n, A Recommendation for the Uniformity of Some CM/ECF Protocols (June 12, 2006), https://www.nycla.org/siteFiles/Publications/Publications254_0.pdf. 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 online and off–, and, in some cases, may provide exemptions from complying with certain technological demands. And, as observed above, electronic filing
This is not to say that there might not be occasions in which a true malfunction in the CM/ECF system or in Internet operation prevents or somehow distorts a timely electronic filing. In such an instance, the federal rules provide for the vigilant counsel a path to relief in the district courts from the otherwise unforgiving deadline that we apply here:
We thus conclude that a notice of appeal is not “filed” for purposes of
CONCLUSION
We have considered all of Franklin‘s contentions in support of appealability and have found them to be without merit. For the foregoing reasons, we GRANT the Secretary‘s motion to dismiss the appeal as untimely and DISMISS the appeal for lack of jurisdiction. Franklin‘s motion to correct his brief or for an order remanding the cause to the District Court is DENIED as moot.