Click To Appeal: Recent Second Circuit Decision A Cautionary Tale Regarding Electronically Filed Notices Of Appeal
November 9, 2015
Authored by: Justin Sabin and Mark Duedall
A recent Second Circuit Court of Appeals decision, Franklin v. McHugh, 2015 WL 6602023 (2d Cir. 2015), illustrates the dire consequences of failing to comply fully with all electronic filing requirements for a notice of appeal. Although appellant’s counsel in that case attempted to file a timely notice of appeal, properly initiated the electronic filing process, paid the filing fee, and received payment confirmation, the Second Circuit dismissed the appeal for lack of appellate jurisdiction due to the technical failure of appellant’s counsel to “click all the buttons” required to complete the filing. In jurisdictions that require electronic filing, counsel must be mindful not only of the applicable procedural rules but also of the electronic filing requirements.
The Applicable Rules Minefield
Appeals are rule intensive, particularly in the bankruptcy context where several sets of rules may dovetail with, complement, or exclude one another. For instance, the time for filing a notice of appeal from a bankruptcy court decision is generally 14 days, a period substantially shorter than in federal civil appeals. Compare Fed. R. Bankr. P. 8002(a) with Fed. R. App. P. 4(a). Further complicating matters, an appellant in an appeal from a bankruptcy court may choose to appeal to a district court acting as an appellate court or to a bankruptcy appellate panel (BAP), if a BAP exists in the relevant judicial circuit. 28 U.S.C. § 158(c)(1). Even if the appellant chooses to appeal to the BAP, any other party to the appeal may elect to have the appeal heard by the district court. Id.
Once the appellate venue is determined, application of the Federal Rules of Bankruptcy Procedure, the Federal Rules of Appellate Procedure, and the Federal Rules of Civil Procedure (or some combination thereof) largely depends on, and those rules often are modified by, the applicable local rules adopted by the district court or BAP. The same applies for appeals taken from a district court or BAP to a circuit court of appeals. These courts often also adopt standing orders and guidance manuals regarding practices and procedures. The astute practitioner, of course, will always ensure compliance with the applicable rules and procedures.
In addition to requiring mastery of the applicable rules, most federal jurisdictions require or allow the electronic filing of court documents through the Case Management/Electronic Case Files (CM/ECF) system, which is the “Federal Judiciary’s comprehensive case management system for all bankruptcy, district, and appellate courts.” Case Management/Electronic Case Files, https://www.pacer.gov/cmecf/. The CM/ECF system “allows courts to accept filings and provides access to filed documents online . . . gives access to case files by multiple parties, and . . . offers the ability to immediately update dockets and download documents and print them directly from the court system.” Id. Use of CM/ECF is generally governed by local rules, which often incorporate a CM/ECF user’s guide, standing administrative order, or other instructions published by the applicable court. See, e.g., D. Ariz. Local Civ. R. 5.5; D. Ariz. Local Bankr. R. 5005-2(a)(1); E.D.N.Y. & S.D.N.Y. Local Civ. R. 5.2(a).
The importance of full and faithful compliance with electronic filing requirements is perhaps nowhere better illustrated than in filing a notice of appeal. Courts generally regard the provisions of Bankruptcy Rule 8002 governing the time for filing a notice of appeal from a bankruptcy court decision to be jurisdictional such that the untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court’s order. E.g., In re Coudert Bros. LLP, 673 F.3d 180, 185 (2d Cir. 2012); In re Mouradick, 13 F.3d 326, 327 (9th Cir. 1994). Rigid enforcement of the appeal deadline is “justified by the ‘peculiar demands of a bankruptcy proceeding,’ primarily the need for expedient administration of the Bankruptcy estate aided by certain finality of orders issued by the Court in the course of administration.” In re Nucorp Energy, Inc., 812 F.2d 582, 584 (9th Cir. 1987). An untimely appeal of a district court or BAP order similarly divests a circuit court of appeals of jurisdiction to consider the appeal. Bowles v. Russell, 551 U.S. 205, 214 (2007).
Franklin v. McHugh: Non-Compliance With All Electronic Filing Requirements May Not Be Excusable
In Franklin, the Second Circuit put practitioners on notice that failure to timely and fully complete the electronic filing process implemented by the applicable court may, with respect to a notice of appeal, result in the appellate court lacking jurisdiction to consider the appeal.
In the underlying lawsuit, the district court dismissed the appellant’s complaint for lack of subject matter jurisdiction. Four days before the applicable deadline, appellant’s counsel used the district court’s CM/ECF system to upload a notice of appeal and other required documents, paid the filing fee, and thereafter received email confirmation of payment of the filing fee. Counsel, however, missed the last “click” in the CM/ECF software required to complete the electronic filing, and the notice of appeal was not filed with the district court.
Five days later, and one day after the filing deadline, appellant’s counsel learned that the district court’s docket did not reflect the filing of the notice of appeal. Counsel contacted the district court clerk’s office, which instructed him to refile the documents and pay the fee again. Counsel recounted that the clerk’s office also assured him that the notice of appeal would relate back to the first filing attempt, which was unsuccessful “due to issues with the ECF system.” Counsel refiled the documents and paid the fee as directed, and the notice of appeal thereafter appeared on the district court’s docket.
In the circuit court, the appellee moved to dismiss the appeal as untimely filed. The appellant argued that the notice of appeal was timely filed when his counsel first uploaded the notice of appeal and paid the filing fee, notwithstanding that the notice of appeal was not docketed until after the filing deadline. The Second Circuit granted the appellee’s motion to dismiss the appeal.
The Second Circuit reiterated that the time limits for filing a notice of appeal are jurisdictional and are not subject to “judicially created equitable exceptions.” Franklin v. McHugh, 2015 WL 6602023, at *2 (2d Cir. 2015). In this case, the district court adopted local procedures for electronic filing, which require compliance with the “instructions regarding Electronic Case Filing (ECF) published on the website of [the district court].” Id. According to the applicable instructions, the electronic filing of a document is only deemed complete when “the last screen you see is a Notice [o]f Electronic Filing screen.” Id. at *3. According to the Second Circuit, “[a]lthough the Eastern District’s instruction could have been more explicit, 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.” Id.
Although recognizing that appellant’s counsel intended to timely file, and otherwise took all necessary steps to timely file, the notice of appeal, the Second Circuit ruled that his failure to click the button in the CM/ECF system that would have generated the “critical Notice of Filing screen” and completed the filing process resulted in the notice of appeal not being filed at all on the date of the initial filing attempt. Id. While the situation is understandable and counsel’s position certainly sympathetic, the Second Circuit made clear that it lacks discretion to craft an equitable result despite such understandable circumstances and dismissed the appeal for lack of jurisdiction. Id.
As an important practice pointer, this result might have been avoidable under a different procedural mechanism. Although the Second Circuit had no power to correct the untimely filing defect, it did note that the appellant could have moved the district court for an extension of the filing deadline for excusable neglect or good cause under Federal Rule of Appellate Procedure 4. Id. at *4. Unfortunately, in this case the appellant did not do so and the time for seeking such an extension had since expired.
Although Franklin did not involve an appeal from a bankruptcy court order, its lessons are equally applicable in the bankruptcy context. Franklin teaches in vivid terms that counsel must be extremely diligent with electronic filing. One failed or missed mouse click could render an appeal untimely and result in dismissal. Familiarity with the appellate procedural rules is not enough. Counsel must also become a competent computer user under the CM/ECF procedures and any administrative order, user’s guide, or other instructions published by the applicable court.