RAMIREZ_PetitionFOR A WRIT OF CERTIORARI_2_6_2017

№ ____________________
IN THE
SUPREME COURT OF THE UNITED STATES
________________________________________
CARLOS RAMIREZ — PETITIONER
VS.
BAUSCH AND LOMB, INC. — RESPONDENT
________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________________
PETITION FOR WRIT OF CERTIORARI
________________________________________
Andrew Paul Kawel
Counsel of Record
Kawel PLLC
80 SW 8th St. Ste. 3330
Miami, Florida 33130-3004
apkawel@kawellaw.com
(305) 209-4529

QUESTIONS PRESENTED
Ramirez was pro se and in forma pauperis. The lower court ordered the filing of a
corrected brief and appendix. Ramirez’s corrected brief was timely mailed but the
appendix was not because of a print-shop error. Under 11th Cir. R. 42-2(e), he
mailed the appendix the very next day with his unopposed motion to treat it as
timely and not dismiss his appeal on account of those extraordinary circumstances.
The clerk received the corrected appendix and unopposed motion together. The
clerk immediately treated the appeal as dismissed under 11th Cir. R. 42-2(c)
because the corrected appendix was not filed by the due date. Yet the clerk did not
file his 11th Cir. R. 42-2(e) motion to treat the corrected appendix as timely because
it had dismissed the appeal.
First. Do Federal Rules of Appellate Procedure 25 and 45 require the clerk to file
Ramirez’s unopposed motion to treat the corrected appendix as timely and present
it to the Eleventh Circuit for consideration and ruling?
Second. Is 11th Cir. R. 42-2 an unreasonable exercise of the Eleventh Circuit’s
supervisory and rulemaking powers because it conflicts with the Federal Rules of
Appellate Procedure?

( ii)
CONTENTS
PETITION CONTENTS
Questions Presented ........................................................................................................ i
Opinions Below ................................................................................................................ 1
Jurisdiction ...................................................................................................................... 2
Provisions Involved .......................................................................................................... 2
Statement of the Case ..................................................................................................... 2
Argument ......................................................................................................................... 6
This Court should grant this petition, vacate the Eleventh Circuit’s order of
dismissal, and remand for the Eleventh Circuit to consider and rule on Ramirez’s
unopposed motion to accept the corrected appendix as timely filed. ...................... 6
A. The clerk of the Eleventh Circuit was required to file Ramirez’s
unopposed motion and to present it to the lower court for consideration
and ruling. But the clerk failed to do so. .................................................. 6
B. If the clerk had properly presented Ramirez’s motion to the
Eleventh Circuit for consideration, that court likely would have
granted it and not dismissed the appeal. ............................................... 10
C. To the extent that the Eleventh Circuit’s local rules were to permit
the clerk to return such motions unfiled, those local rules would be an
unreasonable exercise of the supervisory and rulemaking powers
because the local rules would conflict with the Federal Rules of
Appellate Procedure and produce draconian results. ............................ 13
Conclusion ..................................................................................................................... 18

( iii)
APPENDIX CONTENTS
Order of Dismissal, Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir. Apr. 20,
2016) ............................................................................................................................... 1
Order Denying Motion to Reinstate Appeal, Ramirez v. Bausch & Lomb, Inc.,
№ 15-11914 (11th Cir. July 14, 2016) ............................................................................ 2
Order denying Second Motion to Reinstate Appeal, Ramirez v. Bausch & Lomb, Inc.,
№ 15-11914 (11th Cir. Sep. 17, 2016) ............................................................................. 3
Judgment Appealed, Ramirez v. Bausch & Lomb, Inc., № 8:10-cv-2003-MSS-TGW
(M.D. Fla. Apr. 3, 2015) ................................................................................................... 4
Order Granting Bausch & Lomb, Inc.’s Renewed Request for Summary Judgment,
Ramirez v. Bausch & Lomb, Inc., № 8:10-cv-2003-MSS-TGW
(M.D. Fla. Apr. 2, 2015) ................................................................................................... 5
Judgment and Opinion in Ramirez v. Bausch & Lomb, Inc., № 12-14679 (11th Cir.
Oct. 22, 2013) ................................................................................................................. 17
Order Striking Appellant’s Brief and Appendix in Ramirez v. Bausch & Lomb, Inc.,
№ 12-14679 (11th Cir. Jan. 29, 2016) .......................................................................... 26
28 U.S.C. § 610 .............................................................................................................. 28
28 U.S.C. § 951 .............................................................................................................. 29
28 U.S.C. § 956 .............................................................................................................. 30
28 U.S.C. § 963 .............................................................................................................. 31
28 U.S.C. § 1254 ............................................................................................................ 32
28 U.S.C. § 2072 ............................................................................................................ 33

( iv)
Clerk Correspondence re Entry of Dismissal in Ramirez v. Bausch & Lomb, Inc.,
№ 15-11914 (11th Cir. Apr. 20, 2016) .......................................................................... 34
Clerk Correspondence re Unopposed Motion of Extraordinary Circumstances
Returned Unfiled (Includes Motion Received Apr. 15, 2016) in Ramirez v. Bausch &
Lomb, Inc., № 15-11914 (11th Cir. Apr. 20, 2016) ....................................................... 35
Cover, Index, and Certificate of Service of Corrected Appendix (Date-stamped April
15, 2016; docketed June 2, 2016; other pages omitted) in Ramirez v. Bausch &
Lomb, Inc., № 15-11914 (11th Cir. April 20, 2016) ..................................................... 43
Appellate Docket in Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir.) ........ 48
Notice of Appeal for Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir. Apr.
30, 2015) ......................................................................................................................... 53
District Court Docket in Ramirez v. Bausch & Lomb, Inc., № 8:10-cv-2003-MSS-
TGW (M.D. Fla.) ............................................................................................................ 55
Motion for Extension of Time to File Initial Appellant Brief in Ramirez v. Bausch &
Lomb, Inc., № 15-11914 (11th Cir. June 29, 2015) ...................................................... 69
Motion to Strike in Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir. Dec. 4,
2015) ............................................................................................................................. 74
Motion to Reinstate Appeal, with Affidavit and Exhibits in Ramirez v. Bausch &
Lomb, Inc., № 15-11914 (11th Cir. June 2, 2016) ........................................................ 87

( v)
TABLE OF AUTHORITIES
STATUTES
28 U.S.C. § 610 ................................................................................................. 2, 9
28 U.S.C. § 951 ................................................................................................. 2, 9
28 U.S.C. § 956 ................................................................................................. 2, 9
28 U.S.C. § 963 ................................................................................................. 2, 9
28 U.S.C. § 1254 ................................................................................................... 2
28 U.S.C. § 1332 ............................................................................................... 2, 3
28 U.S.C. § 2072 ............................................................................................. 2, 13
RULES OF THE SUPREME COURT OF THE UNITED STATES
Rule 30 .................................................................................................................. 2
FEDERAL RULES OF APPELLATE PROCEDURE
Rule 25 ......................................................................................................... passim
Rule 27 .......................................................................................................... 10, 14
Rule 45 ............................................................................................................ 9, 15
Rule 47 .................................................................................................... 13, 15, 16

( vi)
ELEVENTH CIRCUIT LOCAL RULES
11th Cir. R. 42-2 .......................................................................................... passim
CASES
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) ....................... 13–14
Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (en banc) ............ 10
Cordell v. Pac. Indem. Co., 335 Fed. App’x 956 (11th Cir. 2009) ...................... 17
In re Beverly Mfg. Corp., 778 F.2d 666 (11th Cir. 1985) .................................... 11
Joseph v. United States, 135 S. Ct. 705 (2014)..................................................
14
Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. 1978) ............................................. 10
Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) .................................. 13
Phillips v. Empl. Mut. Liab. Ins. Co. of Wis., 239 F.2d 79 (5th Cir. 1956) ...... 10
Thomas v. Arn, 474 U.S. 140 (1985) .................................................................. 13
Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008) ..................................... 11, 15
Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988).......................
12, 15
United States v. Payner, 447 U.S. 727 (1980) .................................................... 13
OTHER AUTHORITIES
16AA Charles Alan Wright & Arthur R. Miller,
Fed. Prac. & Proc. § 3991 (4th ed.) ...................................................................... 9

1
IN THE
SUPREME COURT OF THE UNITED STATES
________________________________________
CARLOS RAMIREZ — PETITIONER
VS.
BAUSCH AND LOMB, INC. — RESPONDENT
________________________________________
PETITION FOR WRIT OF CERTIORARI
________________________________________
OPINIONS BELOW
The orders of the United States Court of Appeals for the Eleventh Circuit appear at
Appendix pages 1, 2, and 3 to the petition and are unpublished.
The opinion of the United States District Court for the Middle District of Florida
appears at Appendix pages 5 to the petition and is unpublished.

2
JURISDICTION
The Eleventh Circuit did not consider Ramirez’s unopposed motion to accept the
appendix below as timely filed, and therefore did not enter an order on that motion.
See A. 26, 27, 34, 35, 44. The Eleventh Circuit dismissed this case on April 20, 2016.
A. 1, 34, 52. It denied Ramirez’s first motion to reinstate the appeal on July 14,
2016. A. 2, 52. It denied his second motion to reinstate the appeal on September 7,
2016. A. 3, 52.
On December 9, 2016, Justice Thomas granted an extension of time to file the
petition for a writ of certiorari to and including February 4, 2017 (a Saturday) in
Application № 16A532. This petition was mailed on the following Monday, February
6, 2017, and it is therefore timely. See Rule 30.1.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
PROVISIONS INVOLVED
The following statutes are involved in this case and are set out in the appendix:
sections 610, 951, 956, 963, 1254, and 2072 of Title 28 of the United States Code.
STATEMENT OF THE CASE
Carlos Ramirez sued Bausch & Lomb, Inc., in Florida state court.
1
See A. 55. He
alleged a claim under the Florida Civil Rights Act and a Florida common-law claim
of negligent supervision, training, or retention. Bausch & Lomb removed to the
United States District Court for the Middle District of Florida
2
under
1
2
№ 2010-CA-11240 (Fla. 13th Jud. Cir. Ct., in and for Hillsborough County).
№ 8:10-cv-02003-MSS-TGW (Hon. Mary S. Scriven).

3
28 U.S.C. § 1332 diversity jurisdiction. See A. 55. After removal, Ramirez amended
his complaint to proceed exclusively under Florida’s Private Whistleblower Act.
3
See
A. 55.
The district court entered summary judgment in favor of Bausch & Lomb.
Ramirez took a first appeal to the Eleventh Circuit.
4
A. 65. Although Ramirez had
the benefit of pro bono counsel in the district court, he was pro se and in forma
pauperis on appeal. See A. 66. Ramirez nonetheless prevailed in his first appeal and
the Eleventh Circuit vacated and remanded for further proceedings. A. 17–25.
After remand, the district court again entered summary judgment in favor of
Bausch & Lomb. A. 4–16. Ramirez took a second appeal. A. 53–54.
During the second appeal, Ramirez proceeded pro se and in forma pauperis.
A. 48, 53. He was homeless; slept in shelters or on the street; and could only access
computer equipment for research and drafting at the public library. E.g., A. 69–71,
97–99. He received mail through general delivery at the local post office (A. 3) but
sometimes the documents that the court sent to him were not properly delivered
(see, e.g., A. 51, 68). Although done through unsworn statements, Ramirez made the
lower court aware of his situation from the very beginning of the appeal. E.g., A. 69–
70.
In September 2015, Ramirez timely filed a brief and appendix. A. 49. Bausch &
Lomb filed a brief in response. A. 50. With its brief, Bausch & Lomb
contemporaneously filed a motion to strike portions of Ramirez’s brief and appendix
because they included material outside the record. A. 50. Although the motion only
requested that the improper portions be stricken (A. 80), the lower court struck
Ramirez’s brief and appendix in their entirety. A. 26–27. The lower court also struck
3
4
Fla. Stat. § 448.101 et seq.
№ 12-14669-E.

4
Bausch & Lomb’s brief on its own motion. Id. After two extensions of time,
Ramirez’s corrected brief and corrected appendix were due on April 11, 2016. A. 53.
Ramirez timely prepared his corrected brief and corrected appendix. See A. 36–
39, 92–95. On April 11 he went to Fed Ex Kinkos to print those documents. A. 38–
40, 89–95, 96–99. The corrected brief printed successfully (A. 38–40, 89–95, 97–99)
and was timely filed (A. 51) and later corrected again (A. 51). But the Fed Ex Kinkos
employee printed the corrected appendix out of order and with pages missing. See
A. 38–40, 89–95, 97–99.
Because of the employee’s mistake, the corrected appendix could not be filed
until the next day. See A. 38–40, 89–95, 96–99. Ramirez contacted opposing counsel
about the issue, and opposing counsel graciously agreed not to oppose Ramirez’s
request to consider the corrected appendix timely filed. A. 39, 94.
On April 12, Ramirez mailed the corrected appendix with an accompanying
“unopposed motion of extraordinary circumstances.” A. 34–40, 44 (date-stamped
corrected appendix), 52. In the motion, he explained the situation and asked the
lower court to accept the corrected appendix as timely and to not dismiss the appeal.
The clerk received both the unopposed motion and the corrected
appendix on April 15. A. 35, 36–40, 44 (date-stamped corrected appendix). But
the clerk did not file either document. A. 51–52.
On April 20, the clerk entered a clerk’s order of dismissal:
ENTRY OF DISMISSAL: Pursuant to the 11th Cir.R. 42-2(c), this
appeal is DISMISSED for want of prosecution because the appellant
Carlos Ramirez failed to file CORRECTED appendix within the time
fixed by the rules, effective April 20, 2016.
A. 1. But the accompanying letter stated that
pursuant to 11th Cir. R. 42-2(c) and 42-3(c), when an appellant fails to
timely file or correct a brief or appendix, the appeal shall be treated as

5
dismissed on the first business day following the due date. This appeal
was treated as dismissed on 04/12/2016.
A. 34. The letter further stated that
pursuant to Fed.R.App.P. 25(a)(2)(A), a motion to set aside the
dismissal and remedy the default “is not timely unless the clerk
receives the papers within the time fixed for filing.”
A. 34. And even though Ramirez’s corrected appendix and unopposed motion were
mailed on April 12 and filed on April 15, the clerk returned Ramirez’s motion
unfiled with a letter explaining that the motion, which Ramirez intended to cure the
dismissal, had not been filed because the appeal had been dismissed:
RETURNED UNFILED: Unopposed motion of extraordinary
circumstances received on April 15, 2016, filed by Carlos Ramirez is
returned unfiled due to Clerk's dismissal order issued on April 20,
2016.
A. 35.
Ramirez filed two subsequent motions to reinstate the appeal, but Bausch &
Lomb opposed those motions (see A. 52, 95) and they were denied (A. 2, 3). In one of
them, Ramirez explained that when he contacted the clerk’s office about his
unopposed motion, one of the clerks told him that the motion might have
gotten lost (A. 91) which might explain why it was received but the case was
dismissed anyway.
Justice Thomas granted Ramirez an extension of time to file this petition for
certiorari by Saturday, February 4, 2017. See A. 52. Ramirez now prays that this
Honorable Court use its supervisory power to vacate the dismissal and to require
the Eleventh Circuit to file, consider, and rule on Ramirez’s first unopposed motion.

6
ARGUMENT
This Court should grant this petition, vacate the Eleventh Circuit’s order
of dismissal, and remand for the Eleventh Circuit to consider and rule on
Ramirez’s unopposed motion to accept the corrected appendix as timely
filed.
Carlos Ramirez respectfully asks this Court to use its supervisory power to
correct the Eleventh Circuit’s clerk’s failure to file Ramirez’s permitted, timely, and
unopposed motion, and the Eleventh Circuit’s consequent failure to consider and
rule on that motion.
A. The clerk of the Eleventh Circuit was required to file Ramirez’s unopposed
motion and to present it to the lower court for consideration and ruling. But
the clerk failed to do so.
Under the Eleventh Circuit’s Local Rule 42-2, the failure to file an appendix by an
extended due date causes the appeal to be automatically treated as dismissed on the
first business day following that due date:
When an appellant has failed to file the brief or appendix by the due
date as established by 11th Cir. R. 30-1(c) and 31-1 and set forth in the
clerk’s notice, or, if the due date has been extended by the court, within
the time so extended, an appeal shall be treated as dismissed for
failure to prosecute on the first business day following the due date.
The clerk thereafter will enter an order dismissing the appeal and mail
a copy of that order to counsel and pro se parties. If an appellant is
represented by appointed counsel, the clerk may refer the matter to the
Chief Judge for consideration of possible disciplinary action against
counsel in lieu of dismissal.
11th Cir. R. 42-2(c). And, again in pertinent part, that local rule allows an appellant
whose appeal has been so dismissed to attempt to cure by filing, within fourteen

7
days of the entry of the order of dismissal, a motion to set aside the dismissal and to
remedy the default on account of extraordinary circumstances, accompanied by the
required appendix:
An appeal dismissed pursuant to this rule may be reinstated only upon
the timely filing of a motion to set aside the dismissal and remedy the
default showing extraordinary circumstances, accompanied by the
required brief and appendix. Such a motion showing extraordinary
circumstances, accompanied by the required brief and appendix, must
be filed within 14 days of the date the clerk enters the order dismissing
the appeal. The timely filing of such a motion, accompanied by the
required brief and appendix, and a showing of extraordinary
circumstances, is the exclusive method of seeking to set aside a
dismissal entered pursuant to this rule. An untimely filed motion to set
aside dismissal and remedy default must be denied unless the motion
demonstrates extraordinary circumstances justifying the delay in filing
the motion, and no further filings shall be accepted by the clerk in that
dismissed appeal.
11th Cir. R. 42-2(e).
Here, the Eleventh Circuit had extended the time for Ramirez to file a corrected
appendix to April 11, 2016. A. 51. Appendices are deemed timely filed when mailed
to the clerk on or before the last day for filing, see Fed. R. App. P. 25(a)(2)(B)(i), so
Ramirez had until April 11 to mail the corrected appendix. Because of the FedEx
Kinkos printing error, Ramirez did not mail the corrected appendix by April 11, so
the appeal was treated as dismissed on April 12 (the next business day).
To cure the dismissal, Ramirez had to file a motion to set aside the dismissal and
remedy the default showing extraordinary circumstances, accompanied by the
required corrected appendix, within fourteen days of the entry of the order of
dismissal. 11th Cir. R. 42-2(e). Ramirez did file a motion and the corrected

8
appendix, but the clerk simply did not place them on the docket. A. 36–42, 44, 52,
92–95.
Ramirez filed the documents by mail. “Filing may be accomplished by mail
addressed to the clerk, but filing is not timely unless the clerk receives the papers
within the time fixed for filing.” Fed. R. App. P. 25(a)(2)(A). On April 12—the same
day the appeal was treated as dismissed—Ramirez promptly mailed the corrected
appendix with an unopposed motion.
Ramirez’s motion was signed, bore a proper certificate of service, and included
the required certificate of interested persons and corporate disclosure statement. A.
36–42. In it, Ramirez explained his extraordinary circumstances; requested that the
Eleventh Circuit accept his corrected appendix as timely; and further requested that
the Eleventh Circuit not dismiss his appeal. Id. He explained and argued that:
• the FedEx Kinkos employee printed the corrected appendix improperly;
• that third-party error constituted extraordinary circumstances;
• despite that third-party error, he timely filed his corrected brief with the
printing receipt and a short, immediate explanation of why the corrected appendix
was not sent as well;
• he left voicemail messages for both the clerk and opposing counsel on April 11
to describe the unforeseen situation;
• he called both the clerk and opposing counsel on April 12;
• opposing counsel did not oppose the filing of the corrected appendix one day
late; and
• he “worked very hard putting together [his] initial brief, even through hardship
life circumstances in order to seek justice before this Court; therefore, there has
been no lack of prosecution on [his] part.”

9
Id. Ramirez intended these statements to be under oath. See A. 38 (“COMES NOW,
the Appellant, Carlos Ramirez, pro se, and files this sworn motion of extraordinary
circumstances … .”); A. 34 (“sworn motion”). And he further stated that he could
obtain the affidavit of a witness. A. 33–34. His later motion was verified and
attached the affidavit. A. 96–99.
Ramirez concluded his motion as follows:
Wherefore, the appellant, Carlos Ramirez, pro se, respectfully
requests that this Court … [f]ind that the circumstances contained in
this motion, in their totality, to be considered ‘extraordinary,’
unfortunate and not close this appeal.
A. 40.
Ramirez’s unopposed motion sufficed under 11th Cir. R. 42-2. It explained the
extraordinary circumstances, supra. It was accompanied by the required corrected
appendix. A. 44, 90–91. And it was filed promptly and timely: Ramirez mailed them
the first day after the deadline, and the clerk received them April 15. A. 44, 90–91.
The clerk was required to place the motion on the docket and to submit it to the
lower court for consideration. Before entering upon his duties in the Eleventh
Circuit, it is presumed that the clerk took an oath to “truly and faithfully enter and
record all orders, decrees, judgments and proceedings of such court, and [to]
faithfully and impartially discharge all other duties of [his] office according to the
best of [his] abilities and understanding. … .” 28 U.S.C. § 951. The clerks “other
duties” include those assigned by this Court and the Eleventh Circuit. See
28 U.S.C. §§ 956, 963, 610. And those other duties include the ones assigned
through the Federal Rules of Appellate Procedure, such as “record[ing] all papers
filed with the clerk and all process, orders, and judgments.” Fed. R. App. P. 45(b)(1);
see also 16AA Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3991
(4th ed.) (“All papers filed with the clerk, and all process, orders, and judgments are

10
to be entered of record.”). Likewise, the clerk must “not refuse to accept for filing any
paper presented … solely because it is not presented in proper form as required by
these rules or by any local rule or practice.” Fed. R. App. P. 25(a)(4).
Here, Ramirez properly presented his request by written motion. See Fed. R.
App. P. 27(a)(1). But the clerk never filed the unopposed motion and submitted it to
the lower court for consideration. Instead, the clerk returned the motion as unfiled.
As a result, the Eleventh Circuit never considered or ruled on it.
The Eleventh Circuit’s failure to consider and rule on Ramirez’s timely,
sufficient, persuasive, pro se, and unopposed motion constitutes harmful error, and
this Court should vacate the order of dismissal and remand.
5
B. If the clerk had properly presented Ramirez’s motion to the Eleventh Circuit
for consideration, that court likely would have granted it and not dismissed
the appeal.
The facts and equities weigh in Ramirez’s favor.
First, the timely filing of the corrected appendix is not a jurisdictional
requirement. As elsewhere, in the Eleventh Circuit “non-jurisdictional defects in the
prosecution of [an] appeal [can be] consider[ed] insufficient to warrant dismissal.”
Phillips v. Employers Mut. Liab. Ins. Co. of Wis., 239 F.2d 79, 82 n.2 (5th Cir. 1956);
see Marcaida v. Rascoe, 569 F.2d 828, 830 (5th Cir. 1978); see also Bonner v. City of
Pritchard, 661 F.2d 1206, 1207, 1209 (11th Cir. 1981) (en banc) (the Eleventh Circuit
has adopted as binding precedent the decisions of the Fifth Circuit rendered prior to
October 1, 1981). And in prescribing the approach for district courts to take in
analogous bankruptcy appeals, the Eleventh Circuit has approved the approach
“that dismissal is proper only when bad faith, negligence or indifference has been
5
To the extent this Court believes that mandamus would be a more-appropriate remedy,
this Court should treat this petition as a request for that relief, in the interests of justice.

11
shown.” In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir. 1985). No bad faith,
culpable negligence, or culpable indifference is evident here.
Second, pro se papers should be construed liberally. Like other circuits, the
Eleventh Circuit does so. See, e.g., Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008). Ramirez was proceeding pro se and in forma pauperis. In prior papers, he
had informed the Eleventh Circuit that he was homeless and had been living either
in shelters or on the street. He relied on access to public-library computers for legal
research and drafting. And while it is not explicitly in the record, it is reasonable to
infer that Ramirez did not have a printer of his own, and therefore had to rely on a
third-party vendor like FedEx Kinkos. In light of all the facts and circumstances,
that third-party vendor’s mistake constitutes extraordinary circumstances, or at
worst excusable neglect.
Third, the one-day delay was de minimis and caused no real prejudice. This is
evident from opposing counsel’s gracious agreement not to oppose the acceptance of
the corrected brief as timely filed.
Fourth, Ramirez did not actually fail to prosecute his appeal. Although they were
later ordered to be corrected, both Ramirez’s original brief and appendix had been
timely filed. Ramirez timely filed the corrected brief, and the corrected appendix
was filed only one day late. And his motion was explicit in stating that he was not
failing to prosecute the appeal and in requesting that the appeal not be dismissed.
Fifth, although Ramirez had requested and received several extensions of time,
the untimely filing of the corrected appendix was the first instance that Ramirez
had failed to timely file a document in that appeal. The extreme sanction of
dismissal is too harsh to apply to such a venial sin.
Sixth, the Eleventh Circuit routinely grants Ramirez’s requested relief in other
cases—some of which present less meritorious facts. While the cases are legion, we
present a contemporaneous one by way of example. In Robertson v. Social Security

12
Administration, No. 15-15549, the appendix was due on February 25, 2016. On
March 15, the Eleventh Circuit issued a 11th Cir. R. 42-2(c) dismissal for failing to
file the appendix. On April 4, appellant’s counsel filed an untimely 11th Cir. R.
42-2(e) motion to reinstate the appeal and attached the appendix as required. The
Eleventh Circuit granted that motion and reinstated the appeal, even though the
motion was filed after the fourteen-day deadline and the appendix was filed forty
days after it was due. In comparison, Ramirez was not represented by counsel; he
mailed his unopposed motion and appendix promptly the very next day; and the
unopposed motion and corrected appendix arrived timely, three days after the
corrected appendix’s due date. But while the Eleventh Circuit reinstated the
Robertson appeal, it did not even consider Ramirez’s unopposed motion; it dismissed
his case; and it refused to reinstate the case later.
And seventh, courts of appeals should construe the requirements of the rules of
procedure liberally, and mere technicalities should not preclude consideration of the
merits. See, e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988). This is
especially true where, as here, many judicial and party resources have already been
spent. This litigation had lasted several years; and the Eleventh Circuit, two district
judges, and the parties had already expended substantial effort on it, weighing
against dismissal based on a minor nonjurisdictional and technical infraction. In
fact, even though he proceeded pro se and in forma pauperis, Ramirez had shown an
ability to succeed on appeal because he had prevailed in his first appeal before the
Eleventh Circuit in this very case.
All told, Ramirez stood a good chance of obtaining his requested relief and of
having the Eleventh Circuit proceed to resolve his case on the merits.

13
C. To the extent that the Eleventh Circuit’s local rules were to permit the clerk
to return such motions unfiled, those local rules would be an unreasonable
exercise of the supervisory and rulemaking powers because the local rules
would conflict with the Federal Rules of Appellate Procedure and produce
draconian results.
The Federal Rules of Appellate Procedure allow the courts of appeals to promulgate
their own local procedural rules, so long as those local rules do not conflict with the
Constitution, federal statutes, or other rules promulgated by this Court. See
generally Fed. R. App. P. 47. The Eleventh Circuit promulgated Local Rule 42-2; and
it dismissed Ramirez’s appeal and refused to file his unopposed motion under that
rule. But if that rule really permitted such action, it would be an unreasonable
exercise of the Eleventh Circuit’s powers and would require a reversal of the order of
dismissal.
This Court’s “review of rules adopted by the courts of appeals in their
supervisory capacity is limited in scope, but it does demand that such rules
represent reasoned exercises of the courts’ authority.” Ortega-Rodriguez v. United
States, 507 U.S. 234, 244 (1993). Under Federal Rule of Appellate Procedure 47(a)
(1),“A local rule must be consistent with—but not duplicative of—Acts of Congress
and rules adopted [by this Court] under 28 U.S.C. § 2072 … .” See also 28 U.S.C.
§ 2072(a) (“The Supreme Court shall have the power to prescribe general rules of
practice and procedure … for cases in the United States … courts of appeals.”).
“Even a sensible and efficient use of the supervisory power ... is invalid if it conflicts
with constitutional or statutory provisions.” Thomas v. Arn, 474 U.S. 140, 148
(1985). This is so because allowing federal courts to use their inherent authority in
conflict with the Constitution or federal statutes “would confer on the judiciary
discretionary power to disregard the considered limitations of the law it is charged
with enforcing.” United States v. Payner, 447 U.S. 727, 737 (1980). Cf. Bank of Nova

14
Scotia v. United States, 487 U.S. 250, 254 (1988) (criminal context). See generally
Joseph v. United States, 135 S. Ct. 705 (2014) (statement of Kagan, J., joined by
Ginsburg and Breyer, JJ., respecting the denial of certiorari) (criticizing Eleventh
Circuit for inconsistent application of local rule).
Ramirez had called the clerk to inquire about his unopposed motion, and one of
the clerks even thought the unopposed motion might have gotten lost in
the clerk’s office. A. 91. Apart from the possibility that the clerk may have made a
simple mistake—in which event this Court should grant relief under Part A, supra
—there are only a few possible explanations for the clerk’s failure to file Ramirez’s
unopposed motion and submit it to the Eleventh Circuit for consideration. And each
of those explanations would mean that Local Rule 42-2 necessarily conflicted with a
Federal Rule of Appellate Procedure or federal statute, and consequently is invalid.
First, we have the clerk’s own stated reason: that it dismissed the appeal under
11th Cir. R. 42-2(c) because the corrected appendix was not timely filed (A. 1) and
that it did not file Ramirez’s unopposed motion to accept it as timely because the
appeal had been treated as dismissed (A. 36). But that rationale is a nonstarter
because it pulls itself up by its own bootstraps: the unopposed motion was filed to
avoid or correct the dismissal, so the dismissal itself should not preclude the
unopposed motion’s filing. Moreover, the motion and corrected appendix were
received on April 15, but the dismissal was not entered until April 20. A. 1, 35. If
Local Rule 42-2 permitted the clerk to return the unopposed motion as unfiled, it
would conflict with:
• Federal Rule of Appellate Procedure 27(a)(1) (applications for relief made by
motion);
• Federal Rule of Appellate Procedure 25(a)(1) (papers permitted to be filed must
be filed with the clerk);

15
• Federal Rule of Appellate Procedure 45(b)(1) (“The clerk must maintain a
docket … [and] record all papers filed with the clerk and all process, orders, and
judgments.”);
• Federal Rule of Appellate Procedure 45(d) (“Unless the court orders or
instructs otherwise, the clerk must not permit an original record or paper to be
taken from the clerk’s office”); and, of course,
• Local Rule 42-2(e) itself, which provides for the filing of the motion that
Ramirez submitted.
Second, the clerk may have believed that the unopposed motion had not been
submitted in the form that Eleventh Circuit Local Rule 42-2 requires. True, that
rule requires the filing of a motion to set aside the dismissal and remedy the
default, accompanied by the corrected appendix. 11th Cir. R. 42-2(e). But Ramirez’s
motion substantially complied. Pro se papers are construed liberally, e.g., Timson,
518 F.3d at 874; as are the rules of procedure, e.g., Torres, 487 U.S. at 316; and
while Ramirez did not ask, verbatim, to “set aside the dismissal” or “remedy the
default,” he did ask the Eleventh Circuit to “[f]ind … the circumstances … , in their
totality, to be … ‘extraordinary,’ unfortunate[,] and not close [his] appeal.” A. 40.
Together with his explanation of extraordinary circumstances and accompanying
corrected appendix, his request for relief is sufficient for pro-se purposes.
If the clerk refused to file Ramirez’s unopposed motion under the authority of
Local Rule 42-2, that local rule would conflict with Federal Rule of Appellate
Procedure 25(a)(4), which provides that “[t]he clerk must not refuse to accept for
filing any paper presented for that purpose solely because it is not presented in
proper form as required by these rules or by any local rule or practice.”
And it would likewise violate Federal Rule of Appellate Procedure 47(a)(2), which
provides that “[a] local rule imposing a requirement of form must not be enforced in
a manner that causes a party to lose rights because of a nonwillful failure to comply

16
with the requirement.” The 1995 Committee Note indicates that this paragraph “is
narrowly drawn,” applying only to “mere matters of form,” but does not provide any
examples of matters of form to elucidate the matter. The 1995 Committee Note to
Rule 47(a) says in part:
Paragraph (2) is new. Its aim is to protect against loss of rights in the
enforcement of local rules relating to matters of form. The proscription
of paragraph (2) is narrowly drawn—covering only violations that are
not willful and only those involving local rules directed to matters of
form. It does not limit the court's power to impose substantive
penalties upon a party if it or its attorney stubbornly or repeatedly
violates a local rule, even one involving merely a matter of form. Nor
does it affect the court's power to enforce local rules that involve more
than mere matters of form.
As should be obvious, Ramirez did not willfully fail to comply with Local Rule
42-2(c)’s requirements, nor did he “stubbornly or repeatedly violate a local rule” in a
way that would merit the extreme sanction of dismissal.
Third, the clerk may have believed that the motion was untimely filed under
Local Rule 42-2, in the sense that it had arrived after the appeal had been treated
as dismissed but before the entry of the order recognizing the dismissal, and hence
not “filed within 14 days of the date the clerk enters the order dismissing the
appeal.” 11th Cir. R. 42-2(e). But if the appeal were treated as dismissed on April 12
without the entry of any order, Ramirez’s motion was still timely filed. To prohibit
him from seeking to cure the default by mailing his motion the very next day would
ineluctably lead to the absurd result that appeals dismissed because of an untimely
appendix could not be cured if the appellant waits too long to file the Local Rule
42-2(e) motion, and likewise they could not be cured if the appellant acts too
promptly by seeking relief as soon as the technical mistake is detected.

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The Eleventh Circuit itself has recognized that it lacks authority to amend the
Federal Rules of Appellate Procedure. Cordell v. Pac. Indem. Co., 335 Fed. App’x
956, 960 n.7 (11th Cir. 2009). Any way it is viewed, the clerk’s returning Ramirez’s
unopposed motion as unfiled is erroneous. If, under any of the possible rationales
above, Local Rule 42-2 indeed permitted the clerk to return unfiled Ramirez’s
prompt, timely, and unopposed motion, then Local Rule 42-2 would be an
unreasonable exercise of the Eleventh Circuit’s supervisory and rulemaking
authority; and consequently that error would merit this Court’s certiorari
correction. ⁂

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CONCLUSION
Although this Court exercises its supervisory power sparingly, this case is worthy of
its swift correction.
Ramirez did not willfully violate the deadline to file the corrected appendix. It
was only one day late, on account of a third-party vendor’s mistake, and it was
Ramirez’s first timeliness infraction in that appeal. The Eleventh Circuit’s clerk
should have filed Ramirez’s pro se, unopposed motion and submitted it to the
Eleventh Circuit for consideration. The clerk’s failure to do so deprived Ramirez of
the opportunity to be heard and violated both the Federal Rules of Appellate
Procedure and the Eleventh Circuit’s own local rules.
Because the equities weigh so heavily in Ramirez’s favor, and because Bausch &
Lomb did not oppose treating the corrected appendix as timely filed, the Eleventh
Circuit, on remand, should grant the relief that Ramirez requested.
WHEREFORE this Honorable Court should GRANT this petition, VACATE the
Eleventh Circuit’s order of dismissal, and REMAND this matter for that court to
consider Ramirez’s unopposed motion.
Most respectfully submitted,
/s/ Andrew Paul Kawel
Counsel of Record for Mr. Ramirez
Kawel PLLC
80 SW 8th St. Ste. 3330
Miami, Florida 33130-3004
apkawel@kawellaw.com
(305) 209-4529