If you ever have become confused regarding the timing and procedures related to notices of appeal, you are in good company. Last week, the Sixth Circuit freely acknowledged that a motions panel of the Court reached a decision on this issue that is directly at odds with binding Circuit precedent. Wallace v. Fedex Corporation. Notwithstanding this blatant error, the Court could find no way to remedy the error at this point. Confused? Let’s try to explain it.
The underlying case involves a fairly unremarkable FMLA claim that ended up prompting several years of litigation. Ultimately, the individual plaintiff prevailed in part after trial and received a judgment of $173,000 (later remitted to $90,000). After trial, both sides filed competing motions for new trial, with FedEx also moving for judgment of the matter of law. The trial court initially denied the plaintiff’s Rule 59 motion in December 2010, but did not rule on FedEx’s motion until March 2011. The plaintiff filed her notice of appeal in April 2011, seeking to challenge not only aspects of the ruling related to FedEx, but also the earlier rulings in December 2010 and earlier. However, the Sixth Circuit clerk’s office issued a show cause order as to why the appeal for the decisions in 2010 should not be dismissed. The plaintiff, who was pro se at the time, did not offer much of an explanation, and accordingly a motions panel dismissed her appeal in part, reasoning that because FedEx’s post-judgment motion was not timely filed (there was an extension granted), that motion did not stay the clock for the notice of appeal. This decision, however, according to this panel, “directly conflict with a prior published decision of this Court.” That prior decision, National Ecological Foundation v. Alexander, 496 F3d 466 (6th Cir. 2007), “is directly on point, and it is the law of the Circuit, meaning that it binds all subsequent panels.” But what to do given the motions panel prior contrary ruling? The Court acknowledged that motions panel determinations are not “strictly binding upon subsequent panels” because they are generally interlocutory in nature. However, later panels cannot simply disregard motion panel decisions: “If a litigant wishes to challenge a motion panel’s decision on a dispositive motion, the proper course of action is to request panel rehearing or rehearing en banc.” Wading through the procedural morass here, the Court held “unfortunately for Wallace, however, the motion panel’s clear error is not – in and of itself – enough to warrant us reopening her appeal three years later.” Although this ruling “appears harsh” the Court found that the plaintiff did not adequately contest the show cause order (even though she was pro se at the time), never sought rehearing, and the procedural quagmire was not of FedEx’s making. As a result, the Court felt itself unable to “revisit the motions panel’s erroneous three year old decision.”
This case really illustrates some of the difficulties incumbent in applying the timing rules in connection with notices of appeal. The root of the problem in this case appeared to be at the extension of time of the Rule 50/59 motion that FedEx received (making its eventual motion untimely). While that issue addresses part of the problem, another problematic development was the district court’s failure to resolve all of the post-judgment motions at the same time, which certainly can create litigant confusion. If there is a lesson to take away from this particular case, it is to reinforce the basic notion that one should always be extra conservative in calculating deadlines for notices of appeal!