Wednesday, November 24, 2010
Common sense says NO, and stop wasting the court's time with losing arguments. From U.S. Law Week online:
A petition seeking review of a National Labor Relations Board decision that was filed by a union complying with the court's electronic filing procedures satisfied the requirements for a “petition for review” even though it was not “stamped by the court with the date of filing” as required by a federal statute, the U.S. Court of Appeals for the Second Circuit held Nov. 12 (Local Union 36, International Brotherhood of Electrical Workers v. National Labor Relations Board, 2d Cir., No. 10-3448-ag, 11/12/10).
Judge Gerard E. Lynch said that “where a party files a petition for review in the Second Circuit [which requires e-filing], and then serves the agency with the petition accompanied by the email, bearing the date and time of filing, by which the petition was filed, the party has satisfied the requirements of 28 U.S.C. § 2112(a)(2).”
A literal interpretation of Section 2112(a)(2) would lead to the “absurd result that no qualifying ‘petition' would ever exist when a party sought to file a petition for review in a court of appeals, such as ours, that has adopted an electronic filing system,” the court said.
The NLRB issued a decision and order on Aug. 16, 2010, finding that Rochester Gas & Electric Co. violated the National Labor Relations Act by refusing to bargain with a union.
Rochester Gas filed a petition for review of the order in the District of Columbia Circuit on Aug. 20, and served a non-date-stamped copy of the document on the NLRB by overnight delivery service.
On Aug. 26, the union filed a petition for review in the Second Circuit, following the court's mandatory procedure by transmitting a copy of the document in electronic form to a designated court e-mail address. Under the Second Circuit's rules, such an “initiating document” is considered filed in the court as of the date and time indicated on the e-mail submission.
The union served the petition on the NLRB along with its e-mail to the Second Circuit, which reflected the date it was submitted to the appellate court.