Petition for Writ of Certiorari — McKinley v. Northern Telecom

Supreme Court, U.S

oe tae

9 9'7 4 DEC - 8 1999,

No. 99-___

} OFFICE OF THE CLERK

In The

Supreme Court of the United States

JACQUELINE MCKINLEY,

Petitioner,

NORTHERN TELECOM,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

*

PETITION FOR A WRIT OF CERTIORARI

¢

JOHN W. REEDER

Counsel of Record

for Petitioner

555 Republic Drive

Suite 200

Plano, Texas 75074

972/516-4270

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

What is the minimum due process standard for a

Federal Appellate Court when considering a motion to

either grant a motion to extend the time to file an appel-

lant’s brief or to reinstate an appeal that has been dis-

missed for failing to timely file a brief?

PARTIES TO THE PROCEEDINGS

Petitioner Jacqueline McKinley is the plaintiff in this

case. The defendant in the case, respondent here, is

Northern Telecom.

Petitioner Jacqueline McKinley, pursuant to Rule 29.6

of the Rules of this Court, states that she is an individual

and accordingly has no corporate affiliations.

tty eebe Ren a Lane eee nT

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TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDINGS................. ii

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PRs APES INVOLVED oo. ov cei ck ec ccnscens 2

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A. FAGTUAL BACKGROUND... 2. 6. ceide cece 3

B. DISTRICT COURT PROCEEDINGS........... 3

C. COURT OF APPEALS’ RULINGS............ 4

REASON FOR GRANTING THE PETITION ........ 5

DURING THE LAST FIFTEEN YEARS, THE

FEDERAL APPELLATE CIRCUIT COURTS

HAVE INCREASINGLY DISMISSED APPEALS

FOR PROCEDURAL PITFALLS SUCH AS FAIL-

ING TO FILE A TIMELY BRIEF. THIS COURT

HAS NEVER RULED ON WHAT STANDARD

SHOULD BE USED BY AN APPELLATE

COURT IN CONSIDERING WHETHER TO

GRANT AN EXTENSION OF TIME TO FILE A

BRIEF OR WHETHER IT SHOULD REINSTATE

AN APPEAL DISMISSED FOR FAILURE TO

TIMELY FILE A BRIEF

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TABLE OF AUTHORITIES

Page

Cases:

Barber v. American Security Bank, 841 F.2d 1159

CE Ae PO oo hi eae ai ea 7

Escobar-Ramos v. Immigration and Naturalization

Services, 927 F.2d 482 (9th Cir. 1991) .............. 10

Horner Equipment International, Inc. v. Seascape Pool

Center, Inc., 884 F.2d 89 (3rd Cir. 1989)............. 8

Julien v. Zeringue, 864 F.2d 1572 (Fed. Cir. 1989)...6, 11

Marcadia v. Rascoe, 569 F.2d 828 (5th Cir. 1978)..... 6, 9

Matute v. Procast Navigation LTD., 928 F.2d 627 (3rd

Cir. 1991), cert. denied, 502 U.S. 919, 112 S.Ct.

329, 116 L.Ed.2d 270 (1991), overruled on other

grounds, Neely v. Club Med Management Services,

£06., GS FSO TO Ce Wa Bk ied Se Chara cheeses 8

Modern Leasing, Inc. of Iowa v. Falcon Manufacturing

of California, Inc., 888 F.2d 59 (8th Cir. 1988) ...... 10

Mullen v. Household Bank — Federal Savings Bank,

OGF Fk SO Cie Sat SS oa os ok cae er cecstincs 10

Phillips v. Employers Mutual Liability Ins. Co., 239

2: 20 Se Ce es io x vk Sew ech cE ES SG ah eeena 6

Reyes-Garcia v. Rodriquez & Del Valle, Inc., 82 F.3d

BS CEE Same ae snr oc cvs A aaa ns 7

United States v. Delia, 925 F.2d 574 (2nd Cir. 1991)..... 8

United States v. Hayes, 378 F.2d 567 (4th Cir. 1967) ..... 8

United States v. Raimondi, 760 F.2d 460 (2nd Cir.

ESD)... 5 cae cnsan eevwhescqs cds Gish pl 6, 8

Vv

TABLE OF AUTHORITIES - Continued

Page

STATUTES:

SB Aha S SEE) OG) ic fea cima scka CAS 2

29 U.S.C. §§ 1001 et seq., Employee Retirement

ancome Security Act (ERIGA) <2 6060.5. ci cee tee ls 3

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FEDERAL RULEs:

Federal Rule of Appellant Procedure 26(b)......... a

Federal Rule of Appellant Procedure 31(a) ......... 4%

Federal Rule of Appellant Procedure 31(c) ........... 2

Locat Rutes:

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TABLE OF AUTHORITIES —- Continued

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PETITION FOR A WRIT OF CERTIORARI

This appeal stems from a dismissal of an appeal from

a trial court’s summary judgment in a workers compensa-

tion retaliation case originally filed in Texas state court

but removed to the Federal District Court on federal

question jurisdiction. The Fifth Circuit Court of Appeals

dismissed the appeal, not on the merits of the case, but on

the procedural pitfall of failing to timely file the appel-

lant’s brief.

The brief was not filed because the Clerk of the

Appellate Court failed to send the record to counsel for

the Petitioner and because prior counsel for the Petitioner

failed to recognize that his time limits for filing the brief

were running even when he was not being provided the

record of the trial court. Petitioner’s motion for an exten-

sion of time to file the brief, which motion was filed prior

to the Fifth Circuit Court dismissing the case, and Peti-

tioner’s motion to reinstate the appeal were both denied.

Due process is violated when appellate courts dis-

miss appeals for procedural shortfalls caused in whole or

in part by the appellate court and/or when there is a

clear intent not to abandon the appeal and there is no

prejudice shown to the appellee. This Court should

reverse and remand this case to allow Petitioner to file

her appellate brief and for consideration of her appeal on

the merits of the case.

OPINIONS BELOW

The initial opinion of the court of appeals (App. 1)

and the court’s order denying rehearing (App. 2) are not

reported. The district court’s summary judgment is not

reported.

JURISDICTION

The dismissal order of the court of appeals was

entered on August 4, 1999. (App. 1) Petitioner’s motion

for rehearing was denied on September 9, 1999. (App. 2)

This Court has jurisdiction under 28 U.S.C. § 1254(1) and

(3).

FEDERAL RULES INVOLVED

Federal Rule of Appellant Procedure 31(a) requires

an appellant to “file a brief within 40 days after the

record is filed.” Federal Rule of Appellant Procedure

31(c) states that “an appellee may move to dismiss the

appeal” if the brief is not timely filed. Federal Rule of

Appellant Procedure 26(b) states that “[flor good cause,

the court may extend the time prescribed by these rules

or by its order to perform any act, or may permit an act to

be done after that time expires.”

¢

STATEMENT

A. FACTUAL BACKGROUND

Mrs. McKinley, Petitioner, was employed by North-

ern Telecom in Richardson, Texas. Over a period of sev-

eral years, repetitive movements in her accounting clerk

duties caused her to suffer right shoulder impingement.

After filing a workers compensation claim, Mrs.

McKinley alleges that she was retaliated against by her

employer. This retaliation took the forms of changing the

locks in her work station, supervisors going through her

files, threatening to lay her off, excessive work perfor-

mance monitoring, prying into her medical affiliations,

denial of in-house education, offers to help her find out-

side employment, failing to follow doctor’s work restric-

tions, increased procedures for attaining vacation and

medical leave, and interference with disability and retire-

ment benefits. Mrs. McKinley is still employed by North-

ern Telecom but her condition worsened and she is out on

extended disability leave. It is unknown when she will be

able to return to work.

B. DISTRICT COURT PROCEEDINGS

Petitioner McKinley brought suit in state court

against Northern Telecom, alleging retaliation in violation

of section 451.001 of the Texas Labor Code. The case was

removed to federal district court by Defendant on federal

question jurisdiction, certain claims being preempted by

the Employee Retirement Income Security Act (ERISA), as

amended 29 U.S.C. §§ 1001 et seg. After discovery, the

trial Court granted summary judgment dismissing the

claims on January 19, 1999.!

C. COURT OF APPEALS’ RULINGS

Mrs. McKinley timely filed her notice of appeal and

paid the appellate filing fee on January 21, 1999. How-

ever, her appeal was initially dismissed on March 18,

1999 for failure of Petitioner to order a court reporter’s

transcript. (App. 14-15) On April 27, 1999, The Fifth Cir-

cuit Court of Appeals reinstated the appeal with the

recognition that in the summary judgment case, there was

no court reporter’s transcript to order. (App. 14-15) Fur-

thermore, the reinstatement order ordered the trial court

clerk to send the trial transcript to the appellate court

clerk. (App. 9) On May 4, 1999, the trial court clerk

forwarded the case’s record to the appellate court clerk. |

(App. 15) |

Not having received the record from the appellate

court nor confirmation that the appellate court received

the trial court’s record, prior counsel for Petitioner |

inquired of the whereabouts of the record on June 25, 1999 |

and was informed by the clerk that since they did not have

an appearance form on file for counsel, they had not sent

the record. (App. 4) On June 26, 1999, Petitioner’s prior

counsel filed a Motion For Leave To File Brief Out Of Time

along with an appearance form. (App. 10-16)

———

1 Since this appeal complains of the Fifth Circuit’s

dismissal of the tppeal on procedural grounds without

addressing the merits of Mrs. McKinley’s underlying

complaints against Northern Telecom, the merits of the

underlying suit ‘vill not be further discussed.

Da

On july 8, 1999, Appellee filed an objection to Peti-

tioner’s motion and a motion to dismiss the appeal. (App.

4) On August 3, 1999, Petitioner’s prior counsel finally

received the trial court record (delivery was further

delayed when Petitioner’s prior lead counsel left his old

law firm and the shipping company refused to deliver the

trial record to the old firm, who still had an associate

working on the appeal, and sent it back to the Appellate

Court) (App. 5-6) but the Fifth Circuit signed its Dis-

missal order the very next day, August 4, 1999. (App. 1)

Petitioner’s prior counsel filed a Motion for Rehearing on

August 16, 1999 (App. 3-17) which was denied on Sep-

tember 9, 1999. (App. 2)

¢

REASONS FOR GRANTING THE PETITION

The Fifth Court of Appeals, unguided by any mini-

mum due process review standards set forth by this

Court, dismissed Petitioner’s appeal for a procedural

shortfall of an untimely brief and denied Petitioner’s

Motions for extension of time to file her brief and Motion

to file brief out of time, both as moot, and denied Peti-

tioner’s Motion for rehearing. These rulings, effectively

denying Petitioner her due process right to an appeal on

the merits, were in error because the Appellate Court

itself was a contributing cause of the brief being delin-

quent by failing to forward to appellant’s prior counsel

the record on appeal. Furthermore, there was no indica-

tion that Petitioner sought to abandon her appeal as the

request for extension of time to file the brief was filed

prior to the dismissal order and there was no prejudice

shown to the appellee.

DURING THE LAST FIFTEEN YEARS, THE FEDERAL

APPELLATE CIRCUIT COURTS HAVE INCREAS-

INGLY DISMISSED APPEALS FOR PROCEDURAL

PITFALLS SUCH AS FAILING TO FILE A TIMELY

BRIEF. THIS COURT HAS NEVER RULED ON WHAT |

STANDARD SHOULD BE USED BY AN APPELLATE

COURT IN CONSIDERING WHETHER TO GRANT

AN EXTENSION OF TIME TO FILE A BRIEF OR

WHETHER IT SHOULD REINSTATE AN APPEAL DIS-

MISSED FOR FAILURE TO TIMELY FILE A BRIEF.

Twenty years ago, federal appellate courts were

reluctant to terminate the appeal of a litigant whose

counsel failed to timely file an appeal brief. In fact, in

Marcadia v. Rascoe, 569 F.2d 828 (5th Cir. 1978), the Fifth

Circuit stated:

“This court is not required to dismiss every

appeal which does not meet the time limitations

of Rule 31. In Phillips v. Employers Mutual Lia-

bility Ins. Co., 239 F.2d 79, 80 n. 2 (5th Cir. 1969)

the court said that the late filing of briefs is ‘at

most [a] non-jurisdictional [defect] in the pros-

ecution of [t]his appeal, which we consider

insufficient to warrant dismissal.’ ”

(emphasis added)

However as time passed and the appellate courts got

more and more crowded, dismissal for failing to timely

file briefs became more and more prevalent. The Second

Circuit Court of Appeals put its bar on notice that it

would begin to dismiss cases for failing to file briefs on

time in 1985. United States v. Raimondi, 760 F.2d 460, 462

(2nd Cir. 1985). The Federal Circuit Court of Appeals

gave notice to its bar in 1989. Julien v. Zeringue, 864 F.2d

1572, 1574 (Fed. Cir. 1989).

ee ee

The courts have discretion to disregard procedural

time deficiencies. Federal Rule of Appellant Procedure

26(b). However, the Circuit Courts of Appeals are all over

the board as to what standard is used to grant time

extensions and in dismissing for procedural deficiencies,

and are similarly fractionalized in employing that discre-

tion. The following table sets forth the standards used by

each court by both local rules and practice:

REVIEW REVIEW

STANDARD STANDARD

PER RULES PER RULES?

D.C. Circuit

Extraordinary 1988 — Extraordinary

circumstances? and compelling

circumstances*

Ist Circuit

Special 1996 — Leniency but

circumstances> will dismiss®

2 Review standard as reported in cases within last 20 years.

Since Courts seem to becoming more stringent over time, the

date of the reported case is also listed in the table.

3 D.C. Cir. Rule 28(f)(1).

4 Barber v. American Security Bank, 841 F.2d 1159, 1162 (D.C.

Cir. 1988).

5 1st Cir. Rule 45.

© Reyes-Garcia v. Rodriquez & Del Valle, Inc., 82 F.3d 11, 15

(1st Cir. 1996) (Considering a brief that violated a whole series

of requirements imposed by applicable procedural rules, the

court stated: “No one is perfect, and occasional oversights —

fribbling infringements of the rules that neither create

unfairness to one’s adversary nor impair the court's ability to

8

2nd Circuit

Default to good 1985, 1991 -

cause” Good cause

and compelling

circumstances®

3rd Circuit

Good Cause? 1989, 1991 - q

Extraordinary

circumstances after

opportunity to cure??

4th Circuit

Extraordinary 1967 — leniency!

Circumstances!!

comprehend and scrutinize a party’s submissions — ordinarily

will not warrant Draconian consequences. But major infractions

or patterns of repeated inattention warrant severe decrees.”).

7 Local rules of the Second Circuit do not set a standard,

therefore, Federal Rule of Appellant Procedure 31(a)’s “good

cause” standard is presumed. See 2nd Cir. Rules 27(f) and 38.

8 United States v. Raimondi, 760 F.2d 460, 462 (2nd Cir. 1985);

United States v. Delia, 925 F.2d 574, 575 (2nd Cir. 1991).

9 3rd Cir. Rule 107.2.

10 Horner Equipment International, Inc. v. Seascape Pool '

Center, Inc., 884 F.2d 89, 93 (3rd Cir. 1989) (Dismissals disfavored

and opportunity to cure required); Matute v. Procast Navigation

L.T.D., 928 F.2d 627, 631 (3rd Cir. 1991), cert. denied, 502 U.S. 919,

112 S.Ct. 329, 116 L.Ed.2d 270 (1991), overruled on other grounds, |

Neeley v. Club Med Management Services, Inc., 63 F.3d 166 (3rd Cir.

1995) (Compelling circumstances of medical emergencies in

family excuses late filed brief after three extensions).

11 4th Cir. Rule 31(c); 4th Cir. Rule 45 requires 15 day notice

from clerk of failure to comply with rules before dismissal.

12 See United States v. Hayes, 378 F.2d 566, 568 (4th Cir. 1967)

(In criminal case, court appointed counsel relieved of

representation duties after missing several briefing deadlines

even with clerk intervention.).

5th Circuit

6th Circuit

7th Circuit

Good cause defined

as other litigation,

complexity of issues

and extreme

hardship!5

Default to good

cause, extraordinary

circumstances if

expedited appeal!4

Default to good

cause but provides

for show cause order

before dismissal.

Good cause

examples of other

litigation, complex

issues, or extreme

hardship!5

No published

opinions discussing

standards after the

1978 Marcadia v.

Rascoe opinion cited

previously. The facts

of this case seem

to suggest an

unpublished higher

standard.

No reported cases

1995 — Leniency, then

show cause!®

13 5th Cir. Rules 26.2, 27.1.1, and 31.4.1.

14 6th Cir. Rule 10(k) and I.O.P. 15.8.

15 7th Cir. Rules 26 and 31(c).

16 See United States v. Sosa, 55 F.3d 278, 279 (7th Cir. 1995)

(Document filed was not a brief, appellant ordered to show

cause within 14 days why appeal should not be dismissed.).

8th Circuit

9th Circuit

10th Circuit

10

Default to good

cause, 15 day notice

to cure!”

Good cause for short

extension, diligence

and substantial need

for larger extensions,

second extensions

require extraordinary

and compelling

reasons?

Show timeliness not

possible with

diligence and

priority defined as

other litigation,

complexity of issues

or extreme

hardship?!

17 8th Cir. Rule 3c.

18 See Modern Leasing, Inc. of lowa v. Falcon Manufacturing of

California, Inc., 888 F.2d 59, 61 (8th Cir. 1988).

19 Oth Cir. Rule 32.2.2.

20 Escobar-Ramos v. Immigration and Naturalization Services,

927 F.2d 482, 485 (9th Cir. 1991).

21 10th Cir. Rules 27.4 and 31.4.

22 Mullen v. Household Bank — Federal Savings Bank, 867 F.2d

586, 588 (10th Cir. 1989).

1988 — Leniency, then

show cause, if no

harm - not grounds

for dismissal*®

1991 — Extraordinary

Circumstances but

prefer attorney

sanction to

dismissal?°

1989 — No dismissal

for procedural

briefing errors?

11

11th Circuit

extraordinary No reported cases

circumstances

but clerk can

grant moderate

extensions?

Fed. Circuit

good cause; if filed 1989 - leniency

after deadline — before dismissal?

extraordinary

circumstances?4

This Court has never addressed the issue of what

constitutes good cause and what due process consider-

ations must be analyzed before an appeal can be dis-

missed for failure to timely file an appellant’s brief.

In an effort to trim their dockets, courts in principal

and practice, are increasingly willing to dismiss cases on

procedural grounds. Petitioner asserts that to comply

with procedural due process, the Court should avoid

punishing a litigant for counsel’s mistakes when at all

possible and therefore follow the lead of the Third, Sev-

enth, Eighth and Ninth Circuits and show leniency in

granting initial extensions, increase the standard from

“good cause” to “extraordinary circumstances” after the

initial extensions, and disfavor dismissal — doing so only

23 11th Cir. Rule 26.01, I.0.P. 1 and Rule 31.04, I.O.P. 2.

24 Fed. Cir. Rules 26 and 31(d).

25 See Julien v. Zeringue, 864 F.2d 1572, 1574-75 (Fed. Cir.

1989) (Case involved multiple extensions before initially being

dismissed.).

12

after providing a chance to cure and a showing of harm

to the opposing counsel, or in cases of demonstrated

patterns of extreme disregard for the rules of the court.

In Petitioner’s case, there was no pattern of extreme

disregard for the Procedural Rules of the Fifth Circuit and

Petitioner’s prior counsel was never provided a reason-

able opportunity to file a well planned and presented

brief. Petitioner’s prior attorney failed to receive the trial

court’s record from which to prepare his brief. Many

factors contributed to this failure to receive the record.

The Appellate Clerk disregarded the notice of appeal

documents which contained Petitioner’s attorney’s

address and did not send the record because no notice of

appearance form was filed. The record is unclear as to

why there was no notice of appearance form filed but it is

apparent that the clerk did not timely inform Petitioner’s

prior attorney of the deficiency and the Federal Rules of

Appellate Procedure do not address such a form. Fifth

Circuit Rule 46.3 requires that such a notice be entered

“at the time the case is docketed or upon notice by the

clerk.”

Furthermore, Petitioner’s prior attorney was never

provided notice of his deficiency and provided an oppor-

tunity to cure. Fifth Circuit Rule 42.3.1 provides that

when a criminal appellant fails to file a brief, 15 day

notice is provided before the clerk shall dismiss any case

for failure to prosecute. No similar warning requirement |

is provided to civil appellants.

This case should be remanded, the Court record

returned to Petitioner’s counsel and such counsel be

13

provided a reasonable time to file the brief after receiving

the court’s record.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN W. REEDER

Attorney at Law

555 Republic Drive

Suite 200

Plano, Texas 75074

972/516-4270

Fax: 972/423-1509

Texas Bar No. 16695450

Il.

INDEX TO APPENDIX

Page

8/04/99 ORDER granting Appellee’s Motion to

EMMOIG. 0 ono 55 SFE EG RCEH i ce eceeictevece App.

9/09/99 ORDER denying Appellant’s Motion

SOR TOE TINN niis singis cn vas cacivieavascasens App.

Appellant’s Motion for Rehearing (with

GUUACTIOG GHENT). oo 56 ois. ok.e'c cae ccedenene App.

Exhibit A: 4/27/99 Order Reinstating

FR Eee CT CE TEL Tee Tere App.

Exhibit B: 4/27/99 Clerk’s Memorandum. . App.

Exhibit C: 6/26/99 Correspondence w/

Appearance form and Motion for Leave to File

Deeb: O0t of HNO. isi 5s Skee k 88 App.

Exhibit D: Notice of non-delivery from

2 SP rep erry ree parry eee ee ee ee App.

17

tigen a

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10170

JACQUELINE MCKINLEY

Plaintiff - Appellant

v.

NORTHERN TELECOM

Defendant — Appellee

Appeal from the United States District Court for the

Northern District of Texas, Dallas

(Filed Aug. 4, 1999)

Before HIGGINBOTHAM, DAVIS, and EMILIO M.

GARZA, Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellee’s motion to dismiss

appeal is GRANTED.

IT IS FURTHER ORDERED that appellant’s motion

for leave to file brief out of time is DENIED AS MOOT.

IT IS FURTHER ORDERED that appellant’s motion

for an extension of time to file appellant’s brief is

DENIED AS MOOT.

App. 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10170

JACQUELINE MCKINLEY

Plaintiff - Appellant

v.

NORTHERN TELECOM

Defendant - Appellee

Appeal from the United States District Court for the

Northern District of Texas, Dallas

(Filed Sep. 9, 1999)

Before HIGGINBOTHAM, DAVIS and EMILIO M.

GARZA, Circuit Judges.

BY THE COURT:

The appellant’s motion for rehearing of Court’s order

of August 4, 1999 denying as moot appellant’s motion to

file brief out of time, denying as moot appellant’s motion

to extend time to file appellant's brief, granting appellee’s

motion to dismiss appeal, is DENIED.

App. 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-1070

JACQUELINE MCKINLEY

Plaintiff-Appellant

NORTHERN TELECOM

§

§

§

§

§

Defendant-Appellee §

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

APPELLANT’S MOTION FOR REHEARING

TO THE HONORABLE FIFTH CIRCUIT COURT OF

APPEALS:

COMES NOW the Appellant, Jacqueline McKinley,

and files this Motion For Rehearing and would respect-

fully show the court the following:

I.

This cause was dismissed by an order signed on

March 18, 1999 and granted a reinstatement by the

Court’s order signed on April 27, 1999. (See Exhibit A).

Along with the April 27th order, was a memorandum

from the Court which stated that the district court clerk

App. 4

was requested to send the record and/or exhibits to said

Court as soon as possible. (See Exhibit B). Around this

time, Appellant’s counsel Donald W. Hill was elected to

the office of City Council. With said election came the !

need to withdraw from the firm located at 1999 Bryan,

Suite 3470, Dallas, Texas, 75201, and physically move to

another location at 400 South Zang Blvd., Suite 600,

Dallas, Texas 75208.

Il.

The firm associate on the case, Tracey Wallace, was

still positioned at the 1999 Bryan Street location and was

handling the logistics for the receipt of the records. In

June, 1999, Ms. Wallace inquired about the whereabouts

of the records and was informed by the Court that an

appearance form for Appellant’s counsel had not been

received. On June 26, 1999, Appellant’s lead counsel of

record, Don Hill, filed a Motion for Leave to File Brief

Out of Time and the referenced Appearance Form with

the Court. (See Exhibit C).

On July 8, 1999, counsel for Appellee filed a

Response in Opposition to Appellant’s Motion to Extend

Time to File Brief Out of Time alleging that Appellant had

not received the record due to her counsel’s own making

because no Appearance Form was filed. However, coun-

sel has shown by the facts stated herein and attached

hereto Appellant’s Motion for Rehearing that the requi-

site Appearance Form was, in fact, filed with the Court.

(See Exhibit C).

ae mT ENT Ce een nm ee Ee TL

App. 5

IV.

On July 14, 1999, associate Tracey Wallace received a

notice from UPS stating their not being able to complete

delivery of a shipment from the Court of Appeals, Con-

trol #7522-P12-0231, due to an “Unknown Person.” (See

Exhibit D). On July 15, 1999, the associate followed up

with a telephone call to UPS and requested a return

delivery to the 1999 Bryan Street address, assuming that

the shipment pertained to the Appellant’s records. The

associate then phoned lead counsel Don Hill’s office to

advise of the inquiry. At this time, lead counsel Don

Hill’s office followed up with the inquiry. Counsel’s legal

assistant, Vickie Griffin called UPS on July 20, 1999 and

spoke with a representative by the name of Nancy. The

UPS representative stated that her system revealed a

phone call from Tracey Wallace on July 15, 1999 and a

request to ship the materials back to the 1999 Bryan Street

address. However, the system also showed that the pack-

age had inadvertently been shipped back to the Court of

Appeals. At this time the UPS representative stated that

she would request the Court of Appeals resend the mate-

rials to the 400 South Zang location because of the error.

However, the UPS representative called back to say that

the matter could not be corrected and that counsel’s office

would need to call the Court of Appeals and ask for

Jennifer at extension 118 because she would have to

verify the contents of the package before reshipment was

allowed. The legal assistant called Jennifer at the Court of

Appeals and did, in fact, verify the contents of the pack-

age, as well as inquired about the original shipment

logistics. At this time the legal assistant was told that the

records were initially shipped from the Court of Appeals

App. 6

on July 8, 1999 and received by UPS in Dallas on July 12,

1999. The records were then shipped back to the Court of

Appeals on July 19, 1999 and received on July 20, 1999.

Jennifer advised the legal assistant that she would have

the package mailed back to the 400 South Zang location

to Appellant’s lead counsel.

V.

Appellant counsel’s office at the Zang location

received the materials around August 3, 1999 and the

order dismissing the appeal was granted and signed on

August 4, 1999. (See Exhibit E).

VI.

Appellant had demonstrated good cause for the late

filing of her brief. Appellees will not be prejudiced by the

granting of this Motion for Rehearing. And further, this

Motion is not clearly presented for delay but that justice

may be served. The delays have not been due to any

neglect or intentional indifference. In fact, there has been

a consistent line of communications between Appellant

and the Court of Appeals. The Appellant’s cause was

dismissed on a summary judgment basis. Appellant

needs an opportunity to have her cause fully considered

by this Court.

App. 7

WHEREFORE, PREMISES CONSIDERED Piaintiff

respectfully prays that she be granted an Order granting

rehearing her cause of action.

Respectfully submitted,

/s/ Donald W. Hill

DONALD W. HILL

Texas Bar No. 09628400

400 South Zang, Suite 600

Dallas, Texas 75208

(214) 941-6814

(214) 941-1399 (Facsimile)

Counsel for Appellant

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the

foregoing has been served upon Appellees through their

counsel of record, Carol Darling, Jenkins & Gilchrist, 1445

Ross Avenue, Suite 3200, Dallas, Texas, 75202, on this the

16th day of August, 1999.

/s/ Donald W. Hill

DONALD W. HILL

App. 8

PLAINTIFF’S EXHIBIT A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10170

(Filed Apr. 27, 1999)

JACQUELINE MCKINLEY

Plaintiff-Appellant

v.

NORTHERN TELECOM

Defendant-Appellee

Appeal from the United States District Court for the

Northern District of Texas, Dallas

ORDER:

IT IS ORDERED that appellant’s motion to reinstate

the appeal is GRANTED.

/s/ Jerry E. Smith

JERRY E. SMITH

UNITED STATES

CIRCUIT JUDGE

App. 9

PLAINTIFF’S EXHIBIT B

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

April 27, 1999

MEMORANDUM TO COUNSEL OR PARTIES LISTED

BELOW:

No. 99-10170 McKinley v. Northern Telecom

USDC No. 3:97-CV-2036-BC

The motion of appellant to reinstate the appeal referenced

above is granted. The district court clerk is requested to

send the record and or exhibits to this office as soon as

possible.

Sincerely,

CHARLES R. FULBRUGE III, Clerk

By: /s/ Debbie Kranz

Debbie Kranz, Deputy Clerk

Mr Donald Wayne Hill

Mr Robert Elwood Sheeden

Ms Nancy Hall Doherty, Clerk

MOT-2

App. 10

PLAINTIFF’S EXHIBIT C

Law Offices of

Donald W. Hill

Attorneys and Counselors at Law

Donald W. Hill 400 S. Zang Blvd.

Suite 600

Dallas, Texas 75200

TELE: (214) 941-6814

FAX: (214) 941-1399

Direct Dial:

June 26, 1999

Debbie Kranz, Deputy Clerk

United States Court of Appeals

Fifth Circuit

600 Camp Street

New Orleans, LA 70130

Re: No. 99-10170 — McKinley v. Northern Telecom; USDC

No. 3:97-CV-2036-BC

Dear Clerk:

Enclosed please find an original and three (3) copies of

Appellant’s Motion for Leave to File Brief Out of Time,

along with the Appearance Form, in the above referenced

appeal.

Counsel for Appellee is being notified of same by copy of

this letter. Thank you for all your assistance in this filing.

Sincerely,

/s/ Cassandra Mathis

Cassandra Mathis

Legal Secretary to Don Hill

App. 11

FORM FOR APPEARANCE OF COUNSEL

Only attorneys admitted to the Bar of this Court since October

1, 1981 may sign this form and practice before the Court. An

application for admission is incorporated. Two persons from

the same organization or firm may sign this form.

No. 99-10170

Jacqueline McKinley vs. Northern Telecom

aintiff) (Defendant)

The Clerk will enter my/our appearance as Counsel for

Plaintiff

(Please list names of all parties represented)

who IN THIS COURT is

[ ] Petitioner(s) [ ] Respondent(s) [ ] Amicus Curiae

[“] Appellant(s) [ ] Appellee(s) [ ] Intervenor

I certify that I am a member of the Bar of the Fifth Circuit

Court of Appeals, or application for admission is being

made below.

Donald W. Hill

(Signature) (Signature)

Donald W. Hill

(Type or Print Name) (Type of Print Name)

Partner

(Title, If Any) (Title, If Any)

Law Offices of Donald W. Hill

(Firm or Organization) (Firm or Organization)

Social Security No. 456-90-5366 Social Security No.

Date of Birth 11-3-51 Date of Birth

Sex:[ ]}M [ ] F Sex:[ ]}M [ ] F

Resident State /Bar Resident State/Bar

No. 09628400 No.

App. 12

|

Street Address 400 South Zang Suite 600 Suite

City & State Dallas, Texas Zip 75208 Phone (214) 941-6814 |

Fax (214) 941-1399 |

NOTE: When more than one attorney represents a sin-

gle party or group of parties, counsel should designate a

lead counsel to whom notification is to be sent, with the

understanding that if other counsel should be informed

he or she will perform that function. If lead counsel has not

signed above, lead counsel must complete his or her own

form for appearance of counsel. The person to be notified

in this case is:

Name of Lead Counsel (Type or Print) Donald W. Hill

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPLICATION AND OATH FOR ADMISSION

600 Camp Street, New Orleans, LA 70130

Name

(Last) (First) (Middle)

Firm or Agency

Street Address Suite

City & State Zip

Social Security No.

Phone (__) Resident State/Bar No.

Date of Birth Sex: [ ]M [ ] F

ADMISSION FEE: Admission fees may be paid by per-

sonal check, certified check or postal money order. Please

make payable to the Librarian, United States Court of

App. 13

Appeals. Basis for amount of fee may be found in 5TH Cir.

R. 46, which states:

“Only attorneys admitted to the Bar in this Court

may practice before the Court. Admission to the Bar

of this Court is governed by Fed. R. App. P. 46. Each

attorney shall pay to the Clerk an admission fee of

$50, which shall be transferred to the Library Fund.

An attorney who is appointed by the Court to repre-

sent an appellant in forma pauperis and an attorney

who appears on behalf of the United States must

have all other qualifications for admission, but shall

be admitted to practice in this Court without pay-

ment of an admission fee.”

FEE DATA: (Check One) { ] Cash [ ] Check

[ ] Court Apptd. { ] U.S. Counsel

CASE NUMBER (If Any):

App. 14

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10170

JACQUELINE MCKINLEY

Plaintiff-Appellant

v.

NORTHERN TELECOM

Defendant-Appellee

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MOTION FOR LEAVE TO FILE BRIEF OUT OF TIME

TO THE HONORABLE FIFTH CIRCUIT COURT OF

APPEALS:

COMES NOW the Appellant, Jacqueline McKinley,

and files this Motion for Leave to File Brief Out of Time,

and would show the court the following:

I.

In April 1999, this appeal was dismissed and subse-

quently reinstated. The record indicates that the appeal

_was initially dismissed because of the failure of Plaintiff’s

counsel to submit a request for transcript form. Based on

App. 15

the fact that this cause is an appeal of a summary judg-

ment, a transcript request was not necessary. A copy of

the notice from the District Court clerk transmitting the

record was sent to Plaintiff early in May, 1999. We have

been awaiting the records since that date. Plaintiff and

her counsel has complied with each aspect of her appeal.

The dismissal of Plaintiff's appeal will effectively pre-

clude the Plaintiff from having her appeal heard. The

merits have never been evaluated by an appellate court,

nor has the Plaintiff had her “day in court.” Plaintiff

should be allowed her appeal, particularly in light of the

fact that the Defendant has not been prejudiced.

WHEREFORE, PREMISES CONSIDERED, Appel-

lant hereby requests that her appeal be reinstated, that

the records be forwarded to Appellant’s counsel for the

completion of the brief, and that the time be set by the

Court for the filing of said brief.

Respectfully submitted,

LAW OFFICE OF DONALD W. HILL

/s/ Donald W. Hill

DONALD W. HILL

Texas Bar Card No. 09628400

400 South Zang

Suite 600 .

Dallas, Texas 75208

(214) 941-6846 (Telephone)

(214) 941-1399 (Facsimile)

ATTORNEY FOR

PLAINTIFF-APPELLANT

App. 16

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing document was served upon counsel for Appel-

lee, Ms. Carol Darling, 1445 Ross Avenue, Suite 3200,

Dallas, Texas 75201, via certified mail on this 25th day of

June, 1999.

/s/ Donald W. Hill

DONALD W. HILL

App. 17

PLAINTIFF’S EXHIBIT D

UPS (date (metered

METRO DALLAS stamped) postage mark)

10155 MONROE DR DALLAS, TX

DALLAS TX 75229 JUN 13 1999

Dear Customer:

On 7/12/99, we received a package(s) for you from

Shipper Name Control # COD Account

US COURT OF APPEALS = 7522-P712-8231

We are unable to complete delivery because:

COMPANY OR PERSON UNKNOWN, NOT DELIVERED

Please telephone us at 1-800-877-1502

7:30 AM to 9:00 PM Monday through Friday

to provide delivery instructions.

If we do not hear from you by 7/19/99,

we must return the package(s) to the sender.

Thank you.

To:

WHITE, HILL, SIMS & WIGGINS

C/O MR. DONALD WAYNE HILL

ROOM 3470

1999 BRYAN ST.

DALLAS TX 75201

REC’D JUL 14 1999