Articles Posted in Federal Appellate Rules

This case is getting around. If you missed it, you should know about Abner v. Scott Memorial Hospital, an opinion out of the 7th Circuit Appellate Court. The court ordered Abner to show cause why she should not be sanctioned for filing a brief longer than allowed by the rules without permission of the court.

The opinion grew from a summary judgment given to Scott Memorial in a False Claims Act case. Abner appealed the summary judgment. As required by Federal Rule of Appellate Procedure 32, her lawyer signed a certification that her brief was under the 14,000 word limit. In fact, the brief had more than 18,000 words.

In response to the rule to show cause, Abner’s lawyer conceded his brief was too long. He said he inadvertently misread the rule, and did not include everything in the word count that he should have. But the appellate court ruled that Rule 32 is not ambiguous, “hence [there was] no room for misinterpreting the rule.”

Summary judgment was entered against Scot Vince in his civil rights action against Rock County, Wisconsin. Using the court’s mandatory electronic filing system, Vince’s lawyer filed a notice of appeal on the last day allowed by the rule. The system requires an event code for each document filed. Vince’s lawyer identified the notice of appeal with the wrong code.

Three days later, the clerk of the Seventh Circuit Court of Appeals discovered the mistake and notified Vince’s lawyer. He was directed to file the document again with the correct code. He did so three days later.

So the issue was whether the notice of appeal was timely filed. If the court would accept the first notice, incorrectly coded, then jurisdiction would be established and the appeal could go forward. If only the re-filed notice, correctly coded but filed six days after the deadline, were accepted, then the appellate court would be deprived of jurisdiction to consider the appeal.

Michael Marrs, representing a class of similarly aggrieved employees, sued Motorola for violation of the Employee Retirement Income Security Act. After Motorola got a summary judgment, Marrs appealed. Marrs’s notice of appeal was filed timely, but it stated only that he was appealing. It did not state that he was appealing on behalf of the class he represented.

Under Federal Rule 3(c), as interpreted by the Seventh Circuit Court of Appeals, “the notice of appeal must indicate that the class representative is appealing in his representative capacity.” Marrs had to fix his notice of appeal, or else the appellate court would not have jurisdiction to consider an appeal by the class. But the time for filing the notice of appeal had passed. So to fix the notice, Marrs asked the appellate court to allow him to file a corrected version that specifically said the appeal was for the entire class.

The Seventh Circuit Court of Appeals denied Marrs’s motion. The opinion does not state why, but presumably the court adopted the rationale argued by Motorola – i.e., that Marrs’s motion really was asking for extra time to file a notice of appeal for the class, and that he did not meet the conditions for allowing extra time.

After Ms. Easley lost her appeal in the 7th Circuit U.S. Court of Appeals, she moved for an en banc rehearing. But her petition did not follow Federal Rule of Appellate Procedure 35, which requires a statement of one of two things: (1) that the opinion of the appellate court is in conflict with an opinion of the U.S. Supreme Court; or (2) that the appeal involves a question of “exceptional importance.”

Ms. Easley’s petition did neither, so the court considered it as a petition for rehearing by the original panel. But the motion only raised an issue that was not argued in the original appellate proceeding. Nor did it otherwise comply with Federal Rule of Appellate Procedure 40, which governs panel rehearings. FRAP 40 requires a petition for rehearing to “state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition.”

The appellate court denied the petition for panel rehearing because: “It goes without saying that the panel cannot have ‘overlooked or misapprehended’ an issue that was not presented to it. Panel rehearing is not a vehicle for presenting new arguments, and, absent extraordinary

Malcom Rush was incarcerated in Waupun Correctional Institution in Wisconsin. He appealed after the federal district court denied his petition for a writ of habeas corpus. But Rush’s Notice of Appeal did not get filed within the 30-day deadline.

The issue was whether Rush complied with Federal Rule of Appellate Procedure 4(c), the prisoner mailbox rule. That rule states that the date of filing is the date the prisoner places the mail in the prison mail system. The rule also requires an affidavit by the prisoner that the mail was timely placed in the system and that postage was prepaid.

Rush signed an affidavit that said he placed the document in the mail system timely and that the prison had committed to paying for the postage. But the court ruled that the latter point was not true. Because Rule 4 requires the postage to be paid, the court concluded that Rush’s Notice of Appeal was not timely, thus depriving the court of appellate jurisdiction. “Postage was not prepaid at the time of deposit because Rush did not secure his right to an exemption for a loan from the warden. Therefore the statement in his declaration that Waupun had ‘precommitted’ to paying for the postage as of June 9, 2006, is not true, and does not satisfy the requirements of Rule 4(c)(1).”

The Seventh Circuit Court of Appeals has posted notice of circuit rules changes. The proposed changes will add Local Rule 32.1 and rescind Local Rule 53, regarding disposition of appeals by orders and opinions. The changes are designed to conform the local rules to Supreme Court Rule 32.1. The proposed changes are available by clicking here. Comments will be taken by mail or online by March 1, 2007.

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