A bedrock principle in the appellate world is that the 30-day deadline to file a notice of appeal is jurisdictional. Fail to timely file a notice of appeal and you won’t get an appeal. With that warning in mind, the Sixth Circuit recently held that a notice of appeal, which was rejected for failure to comply with the court’s local rules, sufficed to preserve appellate jurisdiction.
In Pierce v. Ocwen Loan Servicing, LLC, the appellant filed a notice of appeal on the last day of the 30-day period, a Friday. But instead of filing the notice online, he placed it in the court’s physical drop box, along with a cashier’s check for the amount of the filing fee. The problem? Local rules required electronic filing. Told of his mistake on Monday, the attorney refiled electronically. But that wasn’t enough, argued the appellees, who moved to dismiss the appeal for lack of jurisdiction.
The Sixth Circuit disagreed. Noting that the Supreme Court had unanimously reversed a prior Sixth Circuit decision — in which the Sixth Circuit had dismissed an appeal for lack of jurisdiction when a pro se petitioner typed his name instead of including a handwritten signature — the Sixth Circuit clarified that “imperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court.” Local rules cannot expand those requirements, as “[t]he power to enact local rules, generally speaking, does not include the power to deny appellate jurisdiction.” As the Sixth Circuit concluded, “best practices do not set jurisdictional bounds; Congress does.”
But watch out, warned the Sixth Circuit. The appellants here succeeded only because their attorney included a sworn affidavit stating that he had placed the notice of appeal in the drop box on the last day of the 30-day period. Lack of such evidence had been fatal in similar cases, as the appellants had no evidence of a timely filing. In other words, you can’t just argue in your brief that you timely filed the notice of appeal — you need some kind of evidence to back it up.
Of course, it’s probably best to comply with the local rules from the get-go. But Pierce shows that, when there’s a problem with your notice of appeal, not all defects will necessarily be fatal.