John Justice v. Town of Cicero

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-3876

JOHN C. JUSTICE,
Plaintiff-Appellant,
v.

T OWN OF C ICERO , ILLINOIS, and
L ARRY D OMINICK, Town President,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 5331—Matthew F. Kennelly, Judge.

S UBMITTED A PRIL 19, 2012—D ECIDED JUNE 5, 2012

Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. In 2006 police seized six
unregistered guns from John Justice’s business. He sued
and lost. Justice v. Cicero, 577 F.3d 768 (7th Cir. 2009). In
2010 Justice filed another suit based on the same
events, and he lost again. Justice v. Cicero, 2011 U.S. Dist.
L EXIS 123187 (N.D. Ill. Oct. 25, 2011).
2 No. 11-3876

Justice asked the district court to reconsider its
decision under Fed. R. Civ. P. 59(e). A motion under
this rule must be filed within 28 days of the district
court’s decision. That time cannot be extended. Fed. R.
Civ. P. 6(b)(2). Justice had until November 22, 2011, to
file his motion.
The Northern District of Illinois accepts electronic
filing. Justice filed his motion at 3 AM (Central Standard
Time) on November 23. A few days later he asked the
district judge to deem the motion to have been filed on
November 22. The judge stated in open court: “The
motion for leave to file nunc pro tunc is granted.” The
judge did not say why. The judge then denied the
motion on the merits, stating that it was just a rehash
of arguments already made and rejected. Justice has
filed a notice of appeal and asks us to review
the district court’s decision of October 25. This notice
is timely if he filed a timely Rule 59 motion, see Fed. R.
App. P. 4(a)(4), but otherwise is untimely (with respect to
the October 25 judgment)—and jurisdictionally so. See
Bowles v. Russell, 551 U.S. 205 (2007); Blue v. Electrical
Workers, 676 F.3d 579 (7th Cir. 2012). We directed the
litigants to address the problem and have received two
rounds of jurisdictional memoranda.
Nunc pro tunc, a Latin phrase, means “now for then.” A
judge has the power to change records so that they show
what actually happened. Thus if Justice had filed his
motion on November 22, and the clerk’s office had errone-
ously treated it as filed on November 23, the judge could
correct the records to show the right date. See Royall v.
No. 11-3876 3

National Association of Letter Carriers, 548 F.3d 137, 138–39
(D.C. Cir. 2008). But that’s not what occurred here. The
judge changed the records to show that the motion had
been filed a day before its arrival. That is an improper
use of the nunc pro tunc procedure—a point this court
has made repeatedly. See, e.g., Kusay v. United States,
62 F.3d 192 (7th Cir. 1995); In re IFC Credit Corp., 663 F.3d
315, 317–18 (7th Cir. 2011) (Nunc pro tunc “is not a sub-
stitute for relation back. It can’t be used to revise history,
but only to correct inaccurate records. Central Laborers’
Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642,
644 (7th Cir. 1999); King v. Ionization Int’l, Inc., 825 F.2d
1180, 1188 (7th Cir. 1987); United States v. Suarez-Perez, 484
F.3d 537, 541 (8th Cir. 2007).”). A judge who lacks the
authority to grant an extension of time, see Rule 6(b)(2),
can’t achieve the same end by calling the extension a
“nunc pro tunc order” and backdating a document.
Justice’s appeal allows a challenge to the October 25
order only if the 3 AM filing was timely without aid
from the district judge’s order. Yet it does not take a
reference to Cinderella to show that midnight marks the
end of one day and the start of another. Electronic filing
systems do extend the number of hours available for
filing. Instead of having until the clerk’s office closes,
litigants have until 11:59 PM . But e-filing does not
increase the number of days available for filing. A docu-
ment entered into the electronic system at 12:01 AM on
a Thursday has been filed on Thursday, not on
“virtual Wednesday.” Rule 6(a)(4)(A) is explicit on this
point. It says that the last day allowed for filing ends
“for electronic filing, at midnight in the court’s time
4 No. 11-3876

zone”. Just as courts lack the power to grant extensions
of time under Rule 6(b)(2), so the judiciary lacks the
power to say that one day ends at 4 AM or 9 AM of the
next day when an e-filing system is used.
Computers can crash, and a court’s e-filing software
can have bugs. If Justice had tried to file at 11 PM on
November 22, only to discover that the system would
not accept his document, then he could take advantage
of Rule 6(a)(3), which extends the time when the
clerk’s office is inaccessible. What’s more, we held in
Farzana K. v. Indiana Department of Education, 473 F.3d
703, 706–08 (7th Cir. 2007), that a document tendered to
an e-filing system is deemed filed on the day of the
tender, even if a programmer’s failure to anticipate all
possible combinations of circumstances leads the system
to reject the filing. See also Vince v. Rock County, 604
F.3d 391 (7th Cir. 2010). Just as a document deposited
physically in a clerk’s office is filed on that date even
if mishandled by the clerk, so a document transmitted
electronically to the court is filed on the date of trans-
mission no matter what the e-filing system does in re-
sponse. See Farzana K., Vince, and Royall. But Justice did
not transmit his Rule 59 motion on November 22, only
to have the court’s software balk; he transmitted it on
November 23 and must live with the consequences.
Courts used to say that a single day’s delay can cost
a litigant valuable rights. See, e.g., Johnson v. McBride,
381 F.3d 587 (7th Cir. 2004). With e-filing, one hour’s or
even a minute’s delay can cost a litigant valuable rights. A
prudent litigant or lawyer must allow time for difficulties
No. 11-3876 5

on the filer’s end. A crash of the lawyer’s computer, or
a power outage at 11:50 PM , does not extend the
deadline, even though unavailability of the court’s com-
puter can do so under Rule 6(a)(3).
Appellees contend that the 3 AM motion was a “nullity”
and ask us to dismiss the appeal. That’s not quite
right, however. The motion did not extend the time for
appeal of the October 25 decision, because Fed. R. App. P.
4(a)(4) comes into play only when a Rule 59 motion
is timely. But an untimely Rule 59 motion is treated as
a motion under Rule 60(b), see Talano v. Northwestern
Medical Faculty Foundation, Inc., 273 F.3d 757, 762 (7th
Cir. 2001); Hope v. United States, 43 F.3d 1140, 1143 (7th Cir.
1994), and the denial of a Rule 60 motion is ap-
pealable separate from the decision on the merits.
Justice’s notice of appeal is effective, but only with
respect to the denial of relief under Rule 60.
The Supreme Court held in Gonzalez v. Crosby, 545 U.S.
524, 534–38 (2005), that Rule 60(b)(6)—the sole subsection
even arguably applicable to Justice’s motion—permits
a judgment to be reopened only in extraordinary cir-
cumstances. Justice did not argue in the district court
that anything extraordinary occurred between October 25
and November 23 that could support relief under Rule
60(b). Moreover, when a district court denies relief under
Rule 60(b), appellate review is deferential. Metlyn Realty
Corp. v. Esmark, Inc., 763 F.2d 826 (7th Cir. 1985).
Because the memoranda exchanged so far concern
only jurisdiction, it would be premature to decide
whether Justice has satisfied the standard for relief
6 No. 11-3876

under Rule 60(b). But the prospect of his prevailing is
sufficiently dim that we direct him to show cause within
14 days why the judgment should not be affirmed sum-
marily, given the high standards of Gonzalez and
Metlyn. Appellees need not reply to Justice’s memoran-
dum unless the court calls for a response.
The appeal is limited to the district court’s order de-
clining to reopen the litigation. Justice has 14 days to
show cause why that decision should not be affirmed
summarily.

6-5-12