A Wise Proposed Amendment to the Third Circuit’s Local Appellate Rules

As stated here, the Third Circuit has proposed a new Local Appellate Rule 26.1 and a concomitant change to LAR 113.3. LAR 26.1 would provide:

Documents received by the Clerk by 5:00 p.m. Eastern Time will be filed as of the day of receipt and documents received after 5:00 p.m. will be filed as of the next day the clerk’s office is open, regardless of the means of transmission (electronic filing or otherwise). Documents received by 5:00 p.m. Eastern Time on the last day for filing will be considered timely filed, unless a different time is set by a statute, local rule, or court order. Documents received after 5:00 p.m. Eastern Time will be considered untimely filed. For documents filed electronically, the electronic transmission must be completed by 5:00 p.m. Eastern Time on the last day for the filing to be considered timely filed.

This proposed rule implements the principle of Federal Rule of Appellate Procedure 26(a)(4), which provides for a filing deadline of “midnight in the time zone of the circuit clerk’s principal office” but allows for “a different time [to be] set by statute, local rule, or court order.” LAR 113.3, which currently states that “[f]iling must be completed by midnight on the last day Eastern time to be considered timely filed that day,” would be amended to replace “midnight” with “5:00 p.m. Eastern time.”

This is a salutary proposal. A midnight deadline invites, and often compels, attorneys and staff to work until 11:59 PM on papers to be filed. That benefits no one, especially at a time when “work-life balance” has increasingly come to the fore. In earlier days, the District of New Jersey had a “night box” for hand delivery of papers in hours after the Clerk’s office had closed. Deliveries to the night box were considered timely only if deposited by 7 PM. There was no midnight deadline. Counsel conformed their work to meet that deadline. There is no reason why the same cannot and will not happen under proposed LAR 26.1, though some extra planning might be needed to meet the 5 PM deadline.

The Third Circuit has made a very useful proposal. Other courts that currently have a midnight deadline for filing should follow suit.