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E-mail Confusion and Inexperience Did Not Excuse Untimely Filing of Notice of Appeal

Thursday, September 1, 2011

Yamuna Bhaskaran | Bloomberg Law Biodiversity Conservation Alliance v. Bureau of Land Management, Nos. 10-8064, 10-8098, 10-8099, 2011 BL 219594 (10th Cir. Aug. 25, 2011) The U.S. Court of Appeals for the Tenth Circuit dismissed an appeal for lack of jurisdiction where the appellant filed its notice of appeal one day after the statutory deadline. Although the U.S. District Court for the District of Wyoming permitted the late filing, the Tenth Circuit reversed, holding that appellant's counsel's purported e-mail problems and inexperience with appeals did not constitute "excusable neglect" to justify the late filing. Appellant Biodiversity Conservation Alliance (BCA) sought review of an administrative decision in district court. The lower court upheld the administrative decision, and BCA sought to appeal. Because an agency of the United States was a party to the action, the notice of appeal had to be filed within 60 days of the judgment. See Fed. R. App. P. 4(a)(1)(B); 28 U.S.C. § 2107(b). The district court's order was filed in the Public Access to Court Electronic Records (PACER) system on June 10, 2010. BCA's counsel, however, based her 60-day calculation on the date she received an e-mail copy of the judgment on her America Online (AOL) e-mail account, which was one day later. After being notified that it filed its notice of appeal after 61 days, BCA moved pursuant to Federal Rule of Appellate Procedure 4(a)(5) to extend the time to file based on "excusable neglect." BCA's counsel claimed that PACER may have experienced an "internal server issue" or that there was "some delay within the AOL system." She also stated that this was "the only case she had represented in Federal Court and she was unfamiliar with the rules and procedures and was even more unfamiliar with the intricacies of electronic filing and the PACER system." (Internal quotation and alterations omitted.) The district court granted the motion for an extension of time. Finding that the district court had abused its discretion in granting the motion, the Tenth Circuit reversed. As the Court explained, "fault in the delay remains a very important factor—perhaps the most important single factor—in determining whether neglect is excusable." (Internal quotation omitted.) Although BCA acted in good faith and the one-day delay was not prejudicial to respondents, the Court found that "the untimely filing was simply based on counsel's miscalculation of the deadline or a failure to read the rule, which cannot constitute excusable neglect." Because timely filing a notice of appeal is a jurisdictional requirement in a civil case, the Court dismissed the appeal for lack of jurisdiction.

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