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
- Page 2 and 3: QUESTIONS PRESENTED Ramirez was pro
- Page 4 and 5: ( iii) APPENDIX CONTENTS Order of D
- Page 6 and 7: ( v) TABLE OF AUTHORITIES STATUTES
- Page 8 and 9: 1 IN THE SUPREME COURT OF THE UNITE
- Page 10 and 11: 3 28 U.S.C. § 1332 diversity juris
- Page 12 and 13: 5 dismissed on the first business d
- Page 14 and 15: 7 days of the entry of the order of
- Page 16 and 17: 9 Id. Ramirez intended these statem
- Page 18 and 19: 11 shown.” In re Beverly Mfg. Cor
- Page 20 and 21: 13 C. To the extent that the Eleven
- Page 22 and 23: 15 • Federal Rule of Appellate Pr
- Page 24 and 25: 17 The Eleventh Circuit itself has
№ ____________________<br />
IN THE<br />
SUPREME COURT <strong>OF</strong> THE UNITED STATES<br />
________________________________________<br />
CARLOS <strong>RAMIREZ</strong> — PETITIONER<br />
VS.<br />
BAUSCH AND LOMB, INC. — RESPONDENT<br />
________________________________________<br />
ON PETITION FOR A <strong>WRIT</strong> <strong>OF</strong> <strong>CERTIORARI</strong> <br />
TO THE UNITED STATES COURT <strong>OF</strong> APPEALS<br />
FOR THE ELEVENTH CIRCUIT<br />
________________________________________<br />
PETITION FOR <strong>WRIT</strong> <strong>OF</strong> <strong>CERTIORARI</strong><br />
________________________________________<br />
Andrew Paul Kawel<br />
Counsel of Record<br />
Kawel PLLC<br />
80 SW 8th St. Ste. 3330<br />
Miami, Florida 33130-3004<br />
apkawel@kawellaw.com<br />
(305) 209-4529
QUESTIONS PRESENTED<br />
Ramirez was pro se and in forma pauperis. The lower court ordered the filing of a<br />
corrected brief and appendix. Ramirez’s corrected brief was timely mailed but the<br />
appendix was not because of a print-shop error. Under 11th Cir. R. 42-2(e), he<br />
mailed the appendix the very next day with his unopposed motion to treat it as<br />
timely and not dismiss his appeal on account of those extraordinary circumstances.<br />
The clerk received the corrected appendix and unopposed motion together. The<br />
clerk immediately treated the appeal as dismissed under 11th Cir. R. 42-2(c)<br />
because the corrected appendix was not filed by the due date. Yet the clerk did not<br />
file his 11th Cir. R. 42-2(e) motion to treat the corrected appendix as timely because<br />
it had dismissed the appeal.<br />
First. Do Federal Rules of Appellate Procedure 25 and 45 require the clerk to file<br />
Ramirez’s unopposed motion to treat the corrected appendix as timely and present<br />
it to the Eleventh Circuit for consideration and ruling?<br />
Second. Is 11th Cir. R. 42-2 an unreasonable exercise of the Eleventh Circuit’s<br />
supervisory and rulemaking powers because it conflicts with the Federal Rules of<br />
Appellate Procedure?
( ii)<br />
CONTENTS<br />
PETITION CONTENTS<br />
Questions Presented ........................................................................................................ i<br />
Opinions Below ................................................................................................................ 1<br />
Jurisdiction ...................................................................................................................... 2<br />
Provisions Involved .......................................................................................................... 2<br />
Statement of the Case ..................................................................................................... 2<br />
Argument ......................................................................................................................... 6<br />
This Court should grant this petition, vacate the Eleventh Circuit’s order of<br />
dismissal, and remand for the Eleventh Circuit to consider and rule on Ramirez’s<br />
unopposed motion to accept the corrected appendix as timely filed. ...................... 6<br />
A. The clerk of the Eleventh Circuit was required to file Ramirez’s<br />
unopposed motion and to present it to the lower court for consideration<br />
and ruling. But the clerk failed to do so. .................................................. 6<br />
B. If the clerk had properly presented Ramirez’s motion to the<br />
Eleventh Circuit for consideration, that court likely would have<br />
granted it and not dismissed the appeal. ............................................... 10<br />
C. To the extent that the Eleventh Circuit’s local rules were to permit<br />
the clerk to return such motions unfiled, those local rules would be an<br />
unreasonable exercise of the supervisory and rulemaking powers<br />
because the local rules would conflict with the Federal Rules of<br />
Appellate Procedure and produce draconian results. ............................ 13<br />
Conclusion ..................................................................................................................... 18
( iii)<br />
APPENDIX CONTENTS<br />
Order of Dismissal, Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir. Apr. 20,<br />
2016) ............................................................................................................................... 1<br />
Order Denying Motion to Reinstate Appeal, Ramirez v. Bausch & Lomb, Inc.,<br />
№ 15-11914 (11th Cir. July 14, 2016) ............................................................................ 2<br />
Order denying Second Motion to Reinstate Appeal, Ramirez v. Bausch & Lomb, Inc.,<br />
№ 15-11914 (11th Cir. Sep. 17, 2016) ............................................................................. 3<br />
Judgment Appealed, Ramirez v. Bausch & Lomb, Inc., № 8:10-cv-2003-MSS-TGW<br />
(M.D. Fla. Apr. 3, 2015) ................................................................................................... 4<br />
Order Granting Bausch & Lomb, Inc.’s Renewed Request for Summary Judgment,<br />
Ramirez v. Bausch & Lomb, Inc., № 8:10-cv-2003-MSS-TGW <br />
(M.D. Fla. Apr. 2, 2015) ................................................................................................... 5<br />
Judgment and Opinion in Ramirez v. Bausch & Lomb, Inc., № 12-14679 (11th Cir.<br />
Oct. 22, 2013) ................................................................................................................. 17<br />
Order Striking Appellant’s Brief and Appendix in Ramirez v. Bausch & Lomb, Inc.,<br />
№ 12-14679 (11th Cir. Jan. 29, 2016) .......................................................................... 26<br />
28 U.S.C. § 610 .............................................................................................................. 28<br />
28 U.S.C. § 951 .............................................................................................................. 29<br />
28 U.S.C. § 956 .............................................................................................................. 30<br />
28 U.S.C. § 963 .............................................................................................................. 31<br />
28 U.S.C. § 1254 ............................................................................................................ 32<br />
28 U.S.C. § 2072 ............................................................................................................ 33
( iv)<br />
Clerk Correspondence re Entry of Dismissal in Ramirez v. Bausch & Lomb, Inc.,<br />
№ 15-11914 (11th Cir. Apr. 20, 2016) .......................................................................... 34<br />
Clerk Correspondence re Unopposed Motion of Extraordinary Circumstances<br />
Returned Unfiled (Includes Motion Received Apr. 15, 2016) in Ramirez v. Bausch &<br />
Lomb, Inc., № 15-11914 (11th Cir. Apr. 20, 2016) ....................................................... 35<br />
Cover, Index, and Certificate of Service of Corrected Appendix (Date-stamped April<br />
15, 2016; docketed June 2, 2016; other pages omitted) in Ramirez v. Bausch &<br />
Lomb, Inc., № 15-11914 (11th Cir. April 20, 2016) ..................................................... 43<br />
Appellate Docket in Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir.) ........ 48<br />
Notice of Appeal for Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir. Apr.<br />
30, 2015) ......................................................................................................................... 53<br />
District Court Docket in Ramirez v. Bausch & Lomb, Inc., № 8:10-cv-2003-MSS-<br />
TGW (M.D. Fla.) ............................................................................................................ 55<br />
Motion for Extension of Time to File Initial Appellant Brief in Ramirez v. Bausch &<br />
Lomb, Inc., № 15-11914 (11th Cir. June 29, 2015) ...................................................... 69<br />
Motion to Strike in Ramirez v. Bausch & Lomb, Inc., № 15-11914 (11th Cir. Dec. 4,<br />
2015) ............................................................................................................................. 74<br />
Motion to Reinstate Appeal, with Affidavit and Exhibits in Ramirez v. Bausch &<br />
Lomb, Inc., № 15-11914 (11th Cir. June 2, 2016) ........................................................ 87
( v)<br />
TABLE <strong>OF</strong> AUTHORITIES<br />
STATUTES<br />
28 U.S.C. § 610 ................................................................................................. 2, 9<br />
28 U.S.C. § 951 ................................................................................................. 2, 9<br />
28 U.S.C. § 956 ................................................................................................. 2, 9<br />
28 U.S.C. § 963 ................................................................................................. 2, 9<br />
28 U.S.C. § 1254 ................................................................................................... 2<br />
28 U.S.C. § 1332 ............................................................................................... 2, 3<br />
28 U.S.C. § 2072 ............................................................................................. 2, 13<br />
RULES <strong>OF</strong> THE SUPREME COURT <strong>OF</strong> THE UNITED STATES<br />
Rule 30 .................................................................................................................. 2<br />
FEDERAL RULES <strong>OF</strong> APPELLATE PROCEDURE<br />
Rule 25 ......................................................................................................... passim<br />
Rule 27 .......................................................................................................... 10, 14<br />
Rule 45 ............................................................................................................ 9, 15<br />
Rule 47 .................................................................................................... 13, 15, 16
( vi)<br />
ELEVENTH CIRCUIT LOCAL RULES<br />
11th Cir. R. 42-2 .......................................................................................... passim<br />
CASES<br />
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) ....................... 13–14<br />
Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (en banc) ............ 10<br />
Cordell v. Pac. Indem. Co., 335 Fed. App’x 956 (11th Cir. 2009) ...................... 17<br />
In re Beverly Mfg. Corp., 778 F.2d 666 (11th Cir. 1985) .................................... 11<br />
Joseph v. United States, 135 S. Ct. 705 (2014)..................................................<br />
14<br />
Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. 1978) ............................................. 10<br />
Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) .................................. 13<br />
Phillips v. Empl. Mut. Liab. Ins. Co. of Wis., 239 F.2d 79 (5th Cir. 1956) ...... 10<br />
Thomas v. Arn, 474 U.S. 140 (1985) .................................................................. 13<br />
Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008) ..................................... 11, 15<br />
Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988).......................<br />
12, 15<br />
United States v. Payner, 447 U.S. 727 (1980) .................................................... 13<br />
OTHER AUTHORITIES<br />
16AA Charles Alan Wright & Arthur R. Miller, <br />
Fed. Prac. & Proc. § 3991 (4th ed.) ...................................................................... 9
1<br />
IN THE<br />
SUPREME COURT <strong>OF</strong> THE UNITED STATES<br />
________________________________________<br />
CARLOS <strong>RAMIREZ</strong> — PETITIONER<br />
VS.<br />
BAUSCH AND LOMB, INC. — RESPONDENT<br />
________________________________________<br />
PETITION FOR <strong>WRIT</strong> <strong>OF</strong> <strong>CERTIORARI</strong><br />
________________________________________<br />
OPINIONS BELOW<br />
The orders of the United States Court of Appeals for the Eleventh Circuit appear at<br />
Appendix pages 1, 2, and 3 to the petition and are unpublished.<br />
The opinion of the United States District Court for the Middle District of Florida<br />
appears at Appendix pages 5 to the petition and is unpublished.
2<br />
JURISDICTION<br />
The Eleventh Circuit did not consider Ramirez’s unopposed motion to accept the<br />
appendix below as timely filed, and therefore did not enter an order on that motion.<br />
See A. 26, 27, 34, 35, 44. The Eleventh Circuit dismissed this case on April 20, 2016.<br />
A. 1, 34, 52. It denied Ramirez’s first motion to reinstate the appeal on July 14,<br />
2016. A. 2, 52. It denied his second motion to reinstate the appeal on September 7,<br />
2016. A. 3, 52.<br />
On December 9, 2016, Justice Thomas granted an extension of time to file the<br />
petition for a writ of certiorari to and including February 4, <strong>2017</strong> (a Saturday) in<br />
Application № 16A532. This petition was mailed on the following Monday, February<br />
6, <strong>2017</strong>, and it is therefore timely. See Rule 30.1.<br />
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).<br />
PROVISIONS INVOLVED<br />
The following statutes are involved in this case and are set out in the appendix:<br />
sections 610, 951, 956, 963, 1254, and 2072 of Title 28 of the United States Code.<br />
STATEMENT <strong>OF</strong> THE CASE<br />
Carlos Ramirez sued Bausch & Lomb, Inc., in Florida state court.<br />
1<br />
See A. 55. He<br />
alleged a claim under the Florida Civil Rights Act and a Florida common-law claim<br />
of negligent supervision, training, or retention. Bausch & Lomb removed to the<br />
United States District Court for the Middle District of Florida<br />
2<br />
under<br />
1<br />
2<br />
№ 2010-CA-11240 (Fla. 13th Jud. Cir. Ct., in and for Hillsborough County).<br />
№ 8:10-cv-02003-MSS-TGW (Hon. Mary S. Scriven).
3<br />
28 U.S.C. § 1332 diversity jurisdiction. See A. 55. After removal, Ramirez amended<br />
his complaint to proceed exclusively under Florida’s Private Whistleblower Act.<br />
3<br />
See<br />
A. 55.<br />
The district court entered summary judgment in favor of Bausch & Lomb.<br />
Ramirez took a first appeal to the Eleventh Circuit.<br />
4<br />
A. 65. Although Ramirez had<br />
the benefit of pro bono counsel in the district court, he was pro se and in forma<br />
pauperis on appeal. See A. 66. Ramirez nonetheless prevailed in his first appeal and<br />
the Eleventh Circuit vacated and remanded for further proceedings. A. 17–25.<br />
After remand, the district court again entered summary judgment in favor of<br />
Bausch & Lomb. A. 4–16. Ramirez took a second appeal. A. 53–54.<br />
During the second appeal, Ramirez proceeded pro se and in forma pauperis.<br />
A. 48, 53. He was homeless; slept in shelters or on the street; and could only access<br />
computer equipment for research and drafting at the public library. E.g., A. 69–71,<br />
97–99. He received mail through general delivery at the local post office (A. 3) but<br />
sometimes the documents that the court sent to him were not properly delivered<br />
(see, e.g., A. 51, 68). Although done through unsworn statements, Ramirez made the<br />
lower court aware of his situation from the very beginning of the appeal. E.g., A. 69–<br />
70.<br />
In September 2015, Ramirez timely filed a brief and appendix. A. 49. Bausch &<br />
Lomb filed a brief in response. A. 50. With its brief, Bausch & Lomb<br />
contemporaneously filed a motion to strike portions of Ramirez’s brief and appendix<br />
because they included material outside the record. A. 50. Although the motion only<br />
requested that the improper portions be stricken (A. 80), the lower court struck<br />
Ramirez’s brief and appendix in their entirety. A. 26–27. The lower court also struck<br />
3<br />
4<br />
Fla. Stat. § 448.101 et seq.<br />
№ 12-14669-E.
4<br />
Bausch & Lomb’s brief on its own motion. Id. After two extensions of time,<br />
Ramirez’s corrected brief and corrected appendix were due on April 11, 2016. A. 53.<br />
Ramirez timely prepared his corrected brief and corrected appendix. See A. 36–<br />
39, 92–95. On April 11 he went to Fed Ex Kinkos to print those documents. A. 38–<br />
40, 89–95, 96–99. The corrected brief printed successfully (A. 38–40, 89–95, 97–99)<br />
and was timely filed (A. 51) and later corrected again (A. 51). But the Fed Ex Kinkos<br />
employee printed the corrected appendix out of order and with pages missing. See<br />
A. 38–40, 89–95, 97–99.<br />
Because of the employee’s mistake, the corrected appendix could not be filed<br />
until the next day. See A. 38–40, 89–95, 96–99. Ramirez contacted opposing counsel<br />
about the issue, and opposing counsel graciously agreed not to oppose Ramirez’s<br />
request to consider the corrected appendix timely filed. A. 39, 94.<br />
On April 12, Ramirez mailed the corrected appendix with an accompanying<br />
“unopposed motion of extraordinary circumstances.” A. 34–40, 44 (date-stamped<br />
corrected appendix), 52. In the motion, he explained the situation and asked the<br />
lower court to accept the corrected appendix as timely and to not dismiss the appeal.<br />
The clerk received both the unopposed motion and the corrected<br />
appendix on April 15. A. 35, 36–40, 44 (date-stamped corrected appendix). But<br />
the clerk did not file either document. A. 51–52.<br />
On April 20, the clerk entered a clerk’s order of dismissal:<br />
ENTRY <strong>OF</strong> DISMISSAL: Pursuant to the 11th Cir.R. 42-2(c), this<br />
appeal is DISMISSED for want of prosecution because the appellant<br />
Carlos Ramirez failed to file CORRECTED appendix within the time<br />
fixed by the rules, effective April 20, 2016.<br />
A. 1. But the accompanying letter stated that<br />
pursuant to 11th Cir. R. 42-2(c) and 42-3(c), when an appellant fails to<br />
timely file or correct a brief or appendix, the appeal shall be treated as
5<br />
dismissed on the first business day following the due date. This appeal<br />
was treated as dismissed on 04/12/2016.<br />
A. 34. The letter further stated that<br />
pursuant to Fed.R.App.P. 25(a)(2)(A), a motion to set aside the<br />
dismissal and remedy the default “is not timely unless the clerk<br />
receives the papers within the time fixed for filing.”<br />
A. 34. And even though Ramirez’s corrected appendix and unopposed motion were<br />
mailed on April 12 and filed on April 15, the clerk returned Ramirez’s motion<br />
unfiled with a letter explaining that the motion, which Ramirez intended to cure the<br />
dismissal, had not been filed because the appeal had been dismissed:<br />
RETURNED UNFILED: Unopposed motion of extraordinary<br />
circumstances received on April 15, 2016, filed by Carlos Ramirez is<br />
returned unfiled due to Clerk's dismissal order issued on April 20,<br />
2016.<br />
A. 35.<br />
Ramirez filed two subsequent motions to reinstate the appeal, but Bausch &<br />
Lomb opposed those motions (see A. 52, 95) and they were denied (A. 2, 3). In one of<br />
them, Ramirez explained that when he contacted the clerk’s office about his<br />
unopposed motion, one of the clerks told him that the motion might have<br />
gotten lost (A. 91) which might explain why it was received but the case was<br />
dismissed anyway.<br />
Justice Thomas granted Ramirez an extension of time to file this petition for<br />
certiorari by Saturday, February 4, <strong>2017</strong>. See A. 52. Ramirez now prays that this<br />
Honorable Court use its supervisory power to vacate the dismissal and to require<br />
the Eleventh Circuit to file, consider, and rule on Ramirez’s first unopposed motion.
6<br />
ARGUMENT<br />
This Court should grant this petition, vacate the Eleventh Circuit’s order<br />
of dismissal, and remand for the Eleventh Circuit to consider and rule on<br />
Ramirez’s unopposed motion to accept the corrected appendix as timely<br />
filed.<br />
Carlos Ramirez respectfully asks this Court to use its supervisory power to<br />
correct the Eleventh Circuit’s clerk’s failure to file Ramirez’s permitted, timely, and<br />
unopposed motion, and the Eleventh Circuit’s consequent failure to consider and<br />
rule on that motion.<br />
A. The clerk of the Eleventh Circuit was required to file Ramirez’s unopposed<br />
motion and to present it to the lower court for consideration and ruling. But<br />
the clerk failed to do so.<br />
Under the Eleventh Circuit’s Local Rule 42-2, the failure to file an appendix by an<br />
extended due date causes the appeal to be automatically treated as dismissed on the<br />
first business day following that due date:<br />
When an appellant has failed to file the brief or appendix by the due<br />
date as established by 11th Cir. R. 30-1(c) and 31-1 and set forth in the<br />
clerk’s notice, or, if the due date has been extended by the court, within<br />
the time so extended, an appeal shall be treated as dismissed for<br />
failure to prosecute on the first business day following the due date.<br />
The clerk thereafter will enter an order dismissing the appeal and mail<br />
a copy of that order to counsel and pro se parties. If an appellant is<br />
represented by appointed counsel, the clerk may refer the matter to the<br />
Chief Judge for consideration of possible disciplinary action against<br />
counsel in lieu of dismissal.<br />
11th Cir. R. 42-2(c). And, again in pertinent part, that local rule allows an appellant<br />
whose appeal has been so dismissed to attempt to cure by filing, within fourteen
7<br />
days of the entry of the order of dismissal, a motion to set aside the dismissal and to<br />
remedy the default on account of extraordinary circumstances, accompanied by the<br />
required appendix:<br />
An appeal dismissed pursuant to this rule may be reinstated only upon<br />
the timely filing of a motion to set aside the dismissal and remedy the<br />
default showing extraordinary circumstances, accompanied by the<br />
required brief and appendix. Such a motion showing extraordinary<br />
circumstances, accompanied by the required brief and appendix, must<br />
be filed within 14 days of the date the clerk enters the order dismissing<br />
the appeal. The timely filing of such a motion, accompanied by the<br />
required brief and appendix, and a showing of extraordinary<br />
circumstances, is the exclusive method of seeking to set aside a<br />
dismissal entered pursuant to this rule. An untimely filed motion to set<br />
aside dismissal and remedy default must be denied unless the motion<br />
demonstrates extraordinary circumstances justifying the delay in filing<br />
the motion, and no further filings shall be accepted by the clerk in that<br />
dismissed appeal.<br />
11th Cir. R. 42-2(e).<br />
Here, the Eleventh Circuit had extended the time for Ramirez to file a corrected<br />
appendix to April 11, 2016. A. 51. Appendices are deemed timely filed when mailed<br />
to the clerk on or before the last day for filing, see Fed. R. App. P. 25(a)(2)(B)(i), so<br />
Ramirez had until April 11 to mail the corrected appendix. Because of the FedEx<br />
Kinkos printing error, Ramirez did not mail the corrected appendix by April 11, so<br />
the appeal was treated as dismissed on April 12 (the next business day).<br />
To cure the dismissal, Ramirez had to file a motion to set aside the dismissal and<br />
remedy the default showing extraordinary circumstances, accompanied by the<br />
required corrected appendix, within fourteen days of the entry of the order of<br />
dismissal. 11th Cir. R. 42-2(e). Ramirez did file a motion and the corrected
8<br />
appendix, but the clerk simply did not place them on the docket. A. 36–42, 44, 52,<br />
92–95.<br />
Ramirez filed the documents by mail. “Filing may be accomplished by mail<br />
addressed to the clerk, but filing is not timely unless the clerk receives the papers<br />
within the time fixed for filing.” Fed. R. App. P. 25(a)(2)(A). On April 12—the same<br />
day the appeal was treated as dismissed—Ramirez promptly mailed the corrected<br />
appendix with an unopposed motion.<br />
Ramirez’s motion was signed, bore a proper certificate of service, and included<br />
the required certificate of interested persons and corporate disclosure statement. A.<br />
36–42. In it, Ramirez explained his extraordinary circumstances; requested that the<br />
Eleventh Circuit accept his corrected appendix as timely; and further requested that<br />
the Eleventh Circuit not dismiss his appeal. Id. He explained and argued that:<br />
• the FedEx Kinkos employee printed the corrected appendix improperly;<br />
• that third-party error constituted extraordinary circumstances;<br />
• despite that third-party error, he timely filed his corrected brief with the<br />
printing receipt and a short, immediate explanation of why the corrected appendix<br />
was not sent as well;<br />
• he left voicemail messages for both the clerk and opposing counsel on April 11<br />
to describe the unforeseen situation;<br />
• he called both the clerk and opposing counsel on April 12;<br />
• opposing counsel did not oppose the filing of the corrected appendix one day<br />
late; and<br />
• he “worked very hard putting together [his] initial brief, even through hardship<br />
life circumstances in order to seek justice before this Court; therefore, there has<br />
been no lack of prosecution on [his] part.”
9<br />
Id. Ramirez intended these statements to be under oath. See A. 38 (“COMES NOW,<br />
the Appellant, Carlos Ramirez, pro se, and files this sworn motion of extraordinary<br />
circumstances … .”); A. 34 (“sworn motion”). And he further stated that he could<br />
obtain the affidavit of a witness. A. 33–34. His later motion was verified and<br />
attached the affidavit. A. 96–99.<br />
Ramirez concluded his motion as follows:<br />
Wherefore, the appellant, Carlos Ramirez, pro se, respectfully<br />
requests that this Court … [f]ind that the circumstances contained in<br />
this motion, in their totality, to be considered ‘extraordinary,’<br />
unfortunate and not close this appeal.<br />
A. 40.<br />
Ramirez’s unopposed motion sufficed under 11th Cir. R. 42-2. It explained the<br />
extraordinary circumstances, supra. It was accompanied by the required corrected<br />
appendix. A. 44, 90–91. And it was filed promptly and timely: Ramirez mailed them<br />
the first day after the deadline, and the clerk received them April 15. A. 44, 90–91.<br />
The clerk was required to place the motion on the docket and to submit it to the<br />
lower court for consideration. Before entering upon his duties in the Eleventh<br />
Circuit, it is presumed that the clerk took an oath to “truly and faithfully enter and<br />
record all orders, decrees, judgments and proceedings of such court, and [to]<br />
faithfully and impartially discharge all other duties of [his] office according to the<br />
best of [his] abilities and understanding. … .” 28 U.S.C. § 951. The clerks “other<br />
duties” include those assigned by this Court and the Eleventh Circuit. See<br />
28 U.S.C. §§ 956, 963, 610. And those other duties include the ones assigned<br />
through the Federal Rules of Appellate Procedure, such as “record[ing] all papers<br />
filed with the clerk and all process, orders, and judgments.” Fed. R. App. P. 45(b)(1);<br />
see also 16AA Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3991<br />
(4th ed.) (“All papers filed with the clerk, and all process, orders, and judgments are
10<br />
to be entered of record.”). Likewise, the clerk must “not refuse to accept for filing any<br />
paper presented … solely because it is not presented in proper form as required by<br />
these rules or by any local rule or practice.” Fed. R. App. P. 25(a)(4).<br />
Here, Ramirez properly presented his request by written motion. See Fed. R.<br />
App. P. 27(a)(1). But the clerk never filed the unopposed motion and submitted it to<br />
the lower court for consideration. Instead, the clerk returned the motion as unfiled.<br />
As a result, the Eleventh Circuit never considered or ruled on it.<br />
The Eleventh Circuit’s failure to consider and rule on Ramirez’s timely,<br />
sufficient, persuasive, pro se, and unopposed motion constitutes harmful error, and<br />
this Court should vacate the order of dismissal and remand.<br />
5<br />
B. If the clerk had properly presented Ramirez’s motion to the Eleventh Circuit<br />
for consideration, that court likely would have granted it and not dismissed<br />
the appeal.<br />
The facts and equities weigh in Ramirez’s favor.<br />
First, the timely filing of the corrected appendix is not a jurisdictional<br />
requirement. As elsewhere, in the Eleventh Circuit “non-jurisdictional defects in the<br />
prosecution of [an] appeal [can be] consider[ed] insufficient to warrant dismissal.”<br />
Phillips v. Employers Mut. Liab. Ins. Co. of Wis., 239 F.2d 79, 82 n.2 (5th Cir. 1956);<br />
see Marcaida v. Rascoe, 569 F.2d 828, 830 (5th Cir. 1978); see also Bonner v. City of<br />
Pritchard, 661 F.2d 1206, 1207, 1209 (11th Cir. 1981) (en banc) (the Eleventh Circuit<br />
has adopted as binding precedent the decisions of the Fifth Circuit rendered prior to<br />
October 1, 1981). And in prescribing the approach for district courts to take in<br />
analogous bankruptcy appeals, the Eleventh Circuit has approved the approach<br />
“that dismissal is proper only when bad faith, negligence or indifference has been<br />
5<br />
To the extent this Court believes that mandamus would be a more-appropriate remedy,<br />
this Court should treat this petition as a request for that relief, in the interests of justice.
11<br />
shown.” In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir. 1985). No bad faith,<br />
culpable negligence, or culpable indifference is evident here.<br />
Second, pro se papers should be construed liberally. Like other circuits, the<br />
Eleventh Circuit does so. See, e.g., Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.<br />
2008). Ramirez was proceeding pro se and in forma pauperis. In prior papers, he<br />
had informed the Eleventh Circuit that he was homeless and had been living either<br />
in shelters or on the street. He relied on access to public-library computers for legal<br />
research and drafting. And while it is not explicitly in the record, it is reasonable to<br />
infer that Ramirez did not have a printer of his own, and therefore had to rely on a<br />
third-party vendor like FedEx Kinkos. In light of all the facts and circumstances,<br />
that third-party vendor’s mistake constitutes extraordinary circumstances, or at<br />
worst excusable neglect.<br />
Third, the one-day delay was de minimis and caused no real prejudice. This is<br />
evident from opposing counsel’s gracious agreement not to oppose the acceptance of<br />
the corrected brief as timely filed.<br />
Fourth, Ramirez did not actually fail to prosecute his appeal. Although they were<br />
later ordered to be corrected, both Ramirez’s original brief and appendix had been<br />
timely filed. Ramirez timely filed the corrected brief, and the corrected appendix<br />
was filed only one day late. And his motion was explicit in stating that he was not<br />
failing to prosecute the appeal and in requesting that the appeal not be dismissed.<br />
Fifth, although Ramirez had requested and received several extensions of time,<br />
the untimely filing of the corrected appendix was the first instance that Ramirez<br />
had failed to timely file a document in that appeal. The extreme sanction of<br />
dismissal is too harsh to apply to such a venial sin.<br />
Sixth, the Eleventh Circuit routinely grants Ramirez’s requested relief in other<br />
cases—some of which present less meritorious facts. While the cases are legion, we<br />
present a contemporaneous one by way of example. In Robertson v. Social Security
12<br />
Administration, No. 15-15549, the appendix was due on February 25, 2016. On<br />
March 15, the Eleventh Circuit issued a 11th Cir. R. 42-2(c) dismissal for failing to<br />
file the appendix. On April 4, appellant’s counsel filed an untimely 11th Cir. R.<br />
42-2(e) motion to reinstate the appeal and attached the appendix as required. The<br />
Eleventh Circuit granted that motion and reinstated the appeal, even though the<br />
motion was filed after the fourteen-day deadline and the appendix was filed forty<br />
days after it was due. In comparison, Ramirez was not represented by counsel; he<br />
mailed his unopposed motion and appendix promptly the very next day; and the<br />
unopposed motion and corrected appendix arrived timely, three days after the<br />
corrected appendix’s due date. But while the Eleventh Circuit reinstated the<br />
Robertson appeal, it did not even consider Ramirez’s unopposed motion; it dismissed<br />
his case; and it refused to reinstate the case later.<br />
And seventh, courts of appeals should construe the requirements of the rules of<br />
procedure liberally, and mere technicalities should not preclude consideration of the<br />
merits. See, e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988). This is<br />
especially true where, as here, many judicial and party resources have already been<br />
spent. This litigation had lasted several years; and the Eleventh Circuit, two district<br />
judges, and the parties had already expended substantial effort on it, weighing<br />
against dismissal based on a minor nonjurisdictional and technical infraction. In<br />
fact, even though he proceeded pro se and in forma pauperis, Ramirez had shown an<br />
ability to succeed on appeal because he had prevailed in his first appeal before the<br />
Eleventh Circuit in this very case.<br />
All told, Ramirez stood a good chance of obtaining his requested relief and of<br />
having the Eleventh Circuit proceed to resolve his case on the merits.
13<br />
C. To the extent that the Eleventh Circuit’s local rules were to permit the clerk<br />
to return such motions unfiled, those local rules would be an unreasonable<br />
exercise of the supervisory and rulemaking powers because the local rules<br />
would conflict with the Federal Rules of Appellate Procedure and produce<br />
draconian results.<br />
The Federal Rules of Appellate Procedure allow the courts of appeals to promulgate<br />
their own local procedural rules, so long as those local rules do not conflict with the<br />
Constitution, federal statutes, or other rules promulgated by this Court. See<br />
generally Fed. R. App. P. 47. The Eleventh Circuit promulgated Local Rule 42-2; and<br />
it dismissed Ramirez’s appeal and refused to file his unopposed motion under that<br />
rule. But if that rule really permitted such action, it would be an unreasonable<br />
exercise of the Eleventh Circuit’s powers and would require a reversal of the order of<br />
dismissal.<br />
This Court’s “review of rules adopted by the courts of appeals in their<br />
supervisory capacity is limited in scope, but it does demand that such rules<br />
represent reasoned exercises of the courts’ authority.” Ortega-Rodriguez v. United<br />
States, 507 U.S. 234, 244 (1993). Under Federal Rule of Appellate Procedure 47(a)<br />
(1),“A local rule must be consistent with—but not duplicative of—Acts of Congress<br />
and rules adopted [by this Court] under 28 U.S.C. § 2072 … .” See also 28 U.S.C.<br />
§ 2072(a) (“The Supreme Court shall have the power to prescribe general rules of<br />
practice and procedure … for cases in the United States … courts of appeals.”).<br />
“Even a sensible and efficient use of the supervisory power ... is invalid if it conflicts<br />
with constitutional or statutory provisions.” Thomas v. Arn, 474 U.S. 140, 148<br />
(1985). This is so because allowing federal courts to use their inherent authority in<br />
conflict with the Constitution or federal statutes “would confer on the judiciary<br />
discretionary power to disregard the considered limitations of the law it is charged<br />
with enforcing.” United States v. Payner, 447 U.S. 727, 737 (1980). Cf. Bank of Nova
14<br />
Scotia v. United States, 487 U.S. 250, 254 (1988) (criminal context). See generally<br />
Joseph v. United States, 135 S. Ct. 705 (2014) (statement of Kagan, J., joined by<br />
Ginsburg and Breyer, JJ., respecting the denial of certiorari) (criticizing Eleventh<br />
Circuit for inconsistent application of local rule).<br />
Ramirez had called the clerk to inquire about his unopposed motion, and one of<br />
the clerks even thought the unopposed motion might have gotten lost in<br />
the clerk’s office. A. 91. Apart from the possibility that the clerk may have made a<br />
simple mistake—in which event this Court should grant relief under Part A, supra<br />
—there are only a few possible explanations for the clerk’s failure to file Ramirez’s<br />
unopposed motion and submit it to the Eleventh Circuit for consideration. And each<br />
of those explanations would mean that Local Rule 42-2 necessarily conflicted with a<br />
Federal Rule of Appellate Procedure or federal statute, and consequently is invalid.<br />
First, we have the clerk’s own stated reason: that it dismissed the appeal under<br />
11th Cir. R. 42-2(c) because the corrected appendix was not timely filed (A. 1) and<br />
that it did not file Ramirez’s unopposed motion to accept it as timely because the<br />
appeal had been treated as dismissed (A. 36). But that rationale is a nonstarter<br />
because it pulls itself up by its own bootstraps: the unopposed motion was filed to<br />
avoid or correct the dismissal, so the dismissal itself should not preclude the<br />
unopposed motion’s filing. Moreover, the motion and corrected appendix were<br />
received on April 15, but the dismissal was not entered until April 20. A. 1, 35. If<br />
Local Rule 42-2 permitted the clerk to return the unopposed motion as unfiled, it<br />
would conflict with:<br />
• Federal Rule of Appellate Procedure 27(a)(1) (applications for relief made by<br />
motion);<br />
• Federal Rule of Appellate Procedure 25(a)(1) (papers permitted to be filed must<br />
be filed with the clerk);
15<br />
• Federal Rule of Appellate Procedure 45(b)(1) (“The clerk must maintain a<br />
docket … [and] record all papers filed with the clerk and all process, orders, and<br />
judgments.”);<br />
• Federal Rule of Appellate Procedure 45(d) (“Unless the court orders or<br />
instructs otherwise, the clerk must not permit an original record or paper to be<br />
taken from the clerk’s office”); and, of course,<br />
• Local Rule 42-2(e) itself, which provides for the filing of the motion that<br />
Ramirez submitted.<br />
Second, the clerk may have believed that the unopposed motion had not been<br />
submitted in the form that Eleventh Circuit Local Rule 42-2 requires. True, that<br />
rule requires the filing of a motion to set aside the dismissal and remedy the<br />
default, accompanied by the corrected appendix. 11th Cir. R. 42-2(e). But Ramirez’s<br />
motion substantially complied. Pro se papers are construed liberally, e.g., Timson,<br />
518 F.3d at 874; as are the rules of procedure, e.g., Torres, 487 U.S. at 316; and<br />
while Ramirez did not ask, verbatim, to “set aside the dismissal” or “remedy the<br />
default,” he did ask the Eleventh Circuit to “[f]ind … the circumstances … , in their<br />
totality, to be … ‘extraordinary,’ unfortunate[,] and not close [his] appeal.” A. 40.<br />
Together with his explanation of extraordinary circumstances and accompanying<br />
corrected appendix, his request for relief is sufficient for pro-se purposes.<br />
If the clerk refused to file Ramirez’s unopposed motion under the authority of<br />
Local Rule 42-2, that local rule would conflict with Federal Rule of Appellate<br />
Procedure 25(a)(4), which provides that “[t]he clerk must not refuse to accept for<br />
filing any paper presented for that purpose solely because it is not presented in<br />
proper form as required by these rules or by any local rule or practice.”<br />
And it would likewise violate Federal Rule of Appellate Procedure 47(a)(2), which<br />
provides that “[a] local rule imposing a requirement of form must not be enforced in<br />
a manner that causes a party to lose rights because of a nonwillful failure to comply
16<br />
with the requirement.” The 1995 Committee Note indicates that this paragraph “is<br />
narrowly drawn,” applying only to “mere matters of form,” but does not provide any<br />
examples of matters of form to elucidate the matter. The 1995 Committee Note to<br />
Rule 47(a) says in part:<br />
Paragraph (2) is new. Its aim is to protect against loss of rights in the<br />
enforcement of local rules relating to matters of form. The proscription<br />
of paragraph (2) is narrowly drawn—covering only violations that are<br />
not willful and only those involving local rules directed to matters of<br />
form. It does not limit the court's power to impose substantive<br />
penalties upon a party if it or its attorney stubbornly or repeatedly<br />
violates a local rule, even one involving merely a matter of form. Nor<br />
does it affect the court's power to enforce local rules that involve more<br />
than mere matters of form.<br />
As should be obvious, Ramirez did not willfully fail to comply with Local Rule<br />
42-2(c)’s requirements, nor did he “stubbornly or repeatedly violate a local rule” in a<br />
way that would merit the extreme sanction of dismissal.<br />
Third, the clerk may have believed that the motion was untimely filed under<br />
Local Rule 42-2, in the sense that it had arrived after the appeal had been treated<br />
as dismissed but before the entry of the order recognizing the dismissal, and hence<br />
not “filed within 14 days of the date the clerk enters the order dismissing the<br />
appeal.” 11th Cir. R. 42-2(e). But if the appeal were treated as dismissed on April 12<br />
without the entry of any order, Ramirez’s motion was still timely filed. To prohibit<br />
him from seeking to cure the default by mailing his motion the very next day would<br />
ineluctably lead to the absurd result that appeals dismissed because of an untimely<br />
appendix could not be cured if the appellant waits too long to file the Local Rule<br />
42-2(e) motion, and likewise they could not be cured if the appellant acts too<br />
promptly by seeking relief as soon as the technical mistake is detected.
17<br />
The Eleventh Circuit itself has recognized that it lacks authority to amend the<br />
Federal Rules of Appellate Procedure. Cordell v. Pac. Indem. Co., 335 Fed. App’x<br />
956, 960 n.7 (11th Cir. 2009). Any way it is viewed, the clerk’s returning Ramirez’s<br />
unopposed motion as unfiled is erroneous. If, under any of the possible rationales<br />
above, Local Rule 42-2 indeed permitted the clerk to return unfiled Ramirez’s<br />
prompt, timely, and unopposed motion, then Local Rule 42-2 would be an<br />
unreasonable exercise of the Eleventh Circuit’s supervisory and rulemaking<br />
authority; and consequently that error would merit this Court’s certiorari<br />
correction. ⁂
18<br />
CONCLUSION<br />
Although this Court exercises its supervisory power sparingly, this case is worthy of<br />
its swift correction.<br />
Ramirez did not willfully violate the deadline to file the corrected appendix. It<br />
was only one day late, on account of a third-party vendor’s mistake, and it was<br />
Ramirez’s first timeliness infraction in that appeal. The Eleventh Circuit’s clerk<br />
should have filed Ramirez’s pro se, unopposed motion and submitted it to the<br />
Eleventh Circuit for consideration. The clerk’s failure to do so deprived Ramirez of<br />
the opportunity to be heard and violated both the Federal Rules of Appellate<br />
Procedure and the Eleventh Circuit’s own local rules.<br />
Because the equities weigh so heavily in Ramirez’s favor, and because Bausch &<br />
Lomb did not oppose treating the corrected appendix as timely filed, the Eleventh<br />
Circuit, on remand, should grant the relief that Ramirez requested.<br />
WHEREFORE this Honorable Court should GRANT this petition, VACATE the<br />
Eleventh Circuit’s order of dismissal, and REMAND this matter for that court to<br />
consider Ramirez’s unopposed motion.<br />
Most respectfully submitted,<br />
/s/ Andrew Paul Kawel<br />
Counsel of Record for Mr. Ramirez<br />
Kawel PLLC<br />
80 SW 8th St. Ste. 3330<br />
Miami, Florida 33130-3004<br />
apkawel@kawellaw.com<br />
(305) 209-4529