Nothing strikes fear into a lawyer's heart like filing an appeal on the last day. In the old days, the cautious lawyer took the envelope to the clerk's office or post office himself or herself, and watched the timely file-mark or postmark being applied. Now, of course, in the era of e-filing, it's as simple as the click of a mouse. Not.
In Sudduth v. Texas Health & Human Services Commission, decided on July 18, the plaintiff in a federal civil rights suit suffered a loss by summary judgment. On the 30th day after the judgment, her counsel apparently attempted to e-file a notice of appeal, "but encountered technical problems." Apparently the problems were resolved: the electronic filing system generated a notice of filing the next day, and the appeal proceeded. But the Fifth Circuit asked for briefing on whether the notice of appeal had been timely filed, and concluded that it had not.
In dismissing the appeal, the Fifth Circuit relied on a 2015 Second Circuit case (Franklin v. McHugh). There, the court held, based on the local rules of the Eastern District of New York, that an appeal is "filed" on the date that the notice of electronic filing for the appeal is generated in the CM/ECF electronic filing system and the receipt for filing is sent to counsel. The court found the local rules and filing procedures for the Western District of Texas to be similar. It accordingly held that the notice of electronic filing, dated on the 31st day, marked the filing of the appeal whether or not counsel had attempted to file it a day earlier.
Sudduth has three lessons for appellants' counsel. First, the electronic filing process is not complete until the electronic filing system does two things – generates a final screen that constitutes the notice of filing, and simultaneously generates an e-mail to counsel that constitutes the receipt for filing. So watch for that final screen and listen for the chime of the incoming e-mail (and review it when it comes in). Second, the rules contain safety valves when the electronic filing process goes awry; the appellant in Sudduth didn't attempt to take advantage of them until it was too late. If your electronic notice and receipt don't show up in time, promptly take steps to obtain an extension. And third, as seminar speakers and blog writers have been telling you for years, don't file the @&$^#! notice of appeal on the last day!
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