Franklin v. McHugh

804 F.3d 627, 2015 WL 6602023
Court of Appeals for the Second Circuit·Decided October 30, 2015·No. Docket No. 14-4096-cv·Published·Cited by 12 cases

Opinion

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 to reflect the date on which he first attempted to file a notice of appeal, or, in the alternative, for an order remanding the cause to allow the District Court to determine the notice’s timeliness. We conclude that, because Franklin’s counsel did not timely complete the electronic filing process that is established by the Eastern District’s Local Rules, the notice of appeal was not timely filed. We therefore GRANT the Secretary’s motion to dismiss, DENY as moot Franklin’s cross-motion, and DISMISS the appeal for lack of appellate jurisdiction.

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 Fed. R.App. P. 4(a)(1)(B).

On October 23, 2014, according to his declarations in this Court, Franklin’s counsel Gary Port attempted to file the related notice of appeal electronically through the Case Management/Electronic Case Files (“CM/ECF”) system, the federal judiciary’s computerized case management system.1 Port uploaded the notice of appeal [629]*629and other requisite documents to the CM/ ECF system on that day and paid the required $505 filing fee by accessing www. pay.gov, the federal government website for making payments to government agencies. Also on October 23, Port received an email from www.pay.gov transmitting a receipt for his payment.

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 of appeal, his office contacted the Eastern District’s Clerk’s Office. He states that “the [CJlerk’s [OJffice specifically instructed my office to refile the documents, and pay the fee again.” Port Decl. ¶ 7 (Jan. 9, 2015) (ECF No. 51 at *5) (“Port Deck”). Port recounts that his office was “assured that the initial receipt of October 23, 2014 would stand as proof that we did timely file, but due to issues, with the ECF system [the notice of appeal] did not get properly docketed.” Id. Port then electronically filed the notice of appeal. The District Court docket reflects its filing on October 28.2 App. 4. Counsel on appeal states that Franklin “filed a timely notice of appeal on October 28, 2014.” Appellant’s Br. at 3.

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, notwithstanding that the notice did not appear on the District Court docket until he successfully filed it on October 28.

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, — U.S. -, 134 S.Ct. 773, 779, 187 L.Ed.2d 669 (2014); Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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, 127 S.Ct. 2360. Like other jurisdictional requirements, the timely filing mandate is not subject to judicially created equitable exceptions, see id. at 214, 127 S.Ct. 2360 [630]*630(observing that the Supreme Court “has no authority to create equitable exceptions to jurisdictional requirements”).

Federal Rule of Appellate Procedure 3 (“Appeal as of Right — How Taken”) directs that the notice of appeal be filed with the district court clerk, and section 2107 of Title 28 of the U.S.Code (“Time for appeal to court of appeals”) and Federal Rule of Appellate Procedure 4 (“Appeal as of Right — When Taken”) establish the times within which notices of appeal must be filed. When — as here — a United States officer, sued in his official capacity, is a party to the litigation, the notice of appeal must be filed in the district court within 60 days after the court’s entry of judgment. See 28 U.S.C. § 2107(b)(3); Fed. R.App. P. 4(a)(1)(B)(iii).

The Federal Rules of Civil Procedure permit a court to allow for electronic filing. See Fed.R.Civ.P. 5(d)(3) (“A court may, by local rule, allow papers to be filed ... by electronic means.... ”). Approximately two hundred federal courts now allow or mandate filing by electronic means through the federal judiciary’s CM/ECF system. See, e.g., Local Court CM/ECF Information Links, https://www.pacer.gov/ cmecfi'ecfinfo.html (last visited October 29, 2015).

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.

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Franklin v. McHugh, 804 F.3d 627, 2015 WL 6602023 (2d Cir. 2015).

804 F.3d 627 (Franklin v. McHugh) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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