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An agreement between parties limiting the time period in which an appeal may be brought has been enforced by the 2nd U.S. Circuit Court of Appeals. A divided court ruled that postal worker Rona Hertzner was bound by a stipulation that she made with the Postal Service to file an appeal within 20 days or consider it withdrawn with prejudice. “It is important that parties retain the authority to execute binding agreements with respect to the processing of appeals that might not be within the jurisdiction of this court, at least at the time the agreements are executed,” Judge Jon O. Newman wrote for the majority in Hertzner v. Henderson. Hertzner sought reinstatement of her appeal following the dismissal of her Title VII sexual harassment action against her supervisors and some fellow employees of the Postal Service. Senior Judge Jacob Mishler of the Eastern District of New York had dismissed the complaint on Feb. 28, 2000. Hertzner filed a motion asking Mishler to reconsider on March 8, 2000, and then filed a notice of appeal on March 22, 2000. But on May 22, 2000, lawyers for both sides filed a stipulation with the 2nd Circuit withdrawing the appeal without prejudice, “subject to reinstatement by written notification to the Clerk of Court within 20 days” after Mishler decided the motion to reconsider. And if that 20-day deadline was not met, the appeal was to be deemed “withdrawn with prejudice,” the stipulation said. While Mishler denied the motion to reconsider in November 2000, Hertzner waited until February 2001 to ask the 2nd Circuit to reinstate her appeal. The motion was initially granted by the 2nd Circuit staff attorney’s office, but opposition papers by the Postal Service ultimately convinced the office to rescind the reinstatement order. Judge Newman said that Hertzner’s motion for reconsideration before Mishler was filed within 10 days of the order dismissing the case, and therefore “qualified as a so-called ‘ten-day’ motion under Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure.” “When a party files a notice of appeal before a district court disposes of one of the motions listed in Rule 4(a)(4)(A), the notice of appeal ‘becomes effective to appeal a judgment … when the order disposing of the last such remaining motion is entered,’” Newman said, quoting Rule 4(a)(4)(B)(i). “Thus, Hertzner’s notice of appeal, when it was filed on March 22, was not then effective to appeal the judgment, but became effective on November 29.” When the parties filed their stipulation withdrawing the appeal on May 22, the 2nd Circuit approved of the stipulation. As a preliminary matter, Newman said: “we note that Hertzner might well be bound by the stipulation as a contract between herself and the [Postal Service] irrespective of our Court’s approval.” An attempt to pursue an appeal might be ineffective for various reasons, he said. “Whatever uncertainty exists as to whether an appeal is properly within our jurisdiction, an appellant should be able to eschew controversy over the status of an attempted appeal by entering into a binding stipulation with an appellee to withdraw the attempted appeal and to establish a timetable for reinstatement,” he said. “Our Court’s ‘so ordering’ of such a stipulation should render it enforceable … .” DISCRETION ISSUE Hertzner had argued that even if the time-limit agreement was properly approved by the 2nd Circuit, the court should exercise its discretion to permit the withdrawal of the stipulation. “Although we have such authority and have exercised it where it would be ‘manifestly unjust’ not to proceed,” Newman said, ” … we see no compelling circumstances here for disregarding the stipulation.” And while Hertzner said she should be excused from the 20-day limit because of her lawyer’s trial schedule and the departure from his firm of the lawyer who agreed to the stipulation, the court was unpersuaded, he said. He added: “The timetable for processing appeals normally requires faithful compliance.” Absent the stipulation, Hertzner would have had 60 days to file an appeal in the case. Even under the time limit, her appeal still would have been late. In dissent, Judge Amalya Kearse said there was no need to grant Hertzner’s motion for reinstatement of the appeal “because the appeal is already pending.” In Kearse’s view, Hertzner’s motion to reinstate was “superfluous” because her “notice of appeal became effective on Nov. 29.” “I find it difficult to agree with the majority’s view that applying Rule 4(a)(4)(B)(i) as written, and considering an automatically reinstated appeal to be pending, poses any impediment to settlement or to this Court’s ability to clear its docket of appeals that have been filed prematurely,” she said. Responding to the dissent, Newman said that the majority, which included Chief Judge John M. Walker Jr., disagreed that preventing the appeal from going forward essentially let the parties override the Federal Rules of Appellate Procedure. “[N]othing in the Rules prevents the parties from agreeing to withdraw an appeal … and, subject to the approval of the appellate court, agreeing on a timetable for reinstatement of the withdrawn appeal,” he said. Frederick K. Brewington of Hempstead, N.Y., represented Hertzner. Eastern District Assistant U.S. Attorney Charles S. Kleinberg represented the U.S. Postal Service.

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