Rufus L. Brooks v. Sac Wireless, LLC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2020
Decided February 5, 2021
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-2953
RUFUS L. BROOKS,
Plaintiff-Appellant,
v.
SAC WIRELESS, LLC,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 18 C 03472
Edmond E. Chang,
Judge.
ORDER
Rufus Brooks sued SAC Wireless, LLC, asserting that it had discriminated
against him in its hiring practices. SAC moved to dismiss the case with prejudice based
on Brooks’s behavior during two days of depositions. After an evidentiary hearing, the
district court granted SAC’s motion. Brooks, who represented himself, attempted to
appeal by emailing a notice of appeal to the district judge and mailing it, late, to the
district court clerk’s office. Because Brooks’s notice of appeal was untimely, we dismiss
his appeal for lack of jurisdiction.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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I
Brooks applied for 60 positions with SAC. After none of these applications was
successful, he sued SAC for age and race discrimination in violation of federal law. See
29 U.S.C. §§ 623, 626 (age); 42 U.S.C. §§ 2000e-2, 2000e-5 (race). During discovery, the
parties agreed to depose several witnesses over the course of two days at the Chicago
offices of SAC’s counsel, Thompson Coburn LLP. Brooks engaged in aggressive and
threatening behavior during the depositions, prompting SAC to file an emergency
motion to dismiss the case. After conducting an evidentiary hearing, the court found
that Brooks threatened one of the deponents. Because of the seriousness of the offense,
the court dismissed the case with prejudice, as a sanction against Brooks.
The district court entered judgment on August 23, 2019. Until this point, on three
occasions the court had allowed Brooks to email documents to chambers (though
Brooks ended up doing so only twice). One submission was unsolicited: in April 2019,
Brooks emailed to chambers a motion to continue a hearing, in addition to mailing the
motion to the clerk’s office. The judge had the motion filed electronically in the interest
of time and then ruled on it before the clerk’s office received and docketed the hard
copy. In addition, twice the judge ordered Brooks to email something. On January 16,
2019, the judge ordered that “in addition to mailing the response with the Clerk of
Court, [Brooks] shall email a .pdf copy of [his] response to chambers.” The judge did so
“[t]o facilitate timely receipt by the Court” and to ensure that the court would have
sufficient time to review the filing before having to rule. Brooks did not end up filing
the response. The second time, the judge told Brooks to “file” his post evidentiary
hearing response “both by mailing it and also by emailing a copy” to chambers. This
was a generous move: the response was already a month late, and Brooks had filed a
procedurally deficient extension motion. The clerk’s office accepted the tardy response.
On the final day to file a notice of appeal, September 23, 2019, Brooks emailed his
notice to the judge’s chambers and opposing counsel. The same day, he mailed a hard
copy to the clerk’s office. The clerk’s office entered it onto the docket on October 7, 2019,
backdating it to October 1, 2019 (when the mailed copy was received).
II
SAC argues that we lack jurisdiction because Brooks filed his notice of appeal
more than 30 days after the district court entered final judgment. See 28 U.S.C.
§ 2107(a); FED. R. A PP. P. 4(a)(1)(A). SAC allows that, had Brooks timely emailed a notice
of appeal to the clerk’s office, not chambers, he might have fulfilled his filing
obligations. This is because an error of form does not foreclose appellate jurisdiction.
See FED. R. C IV. P. 5(d)(4); Farley v. Koepp, 788 F.3d 681, 683 (7th Cir. 2015) (explaining
that a filing occurs even when not in the form prescribed by local rules); United States v.

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Harvey, 516 F.3d 553, 556 (7th Cir. 2008) (“The difference between a hard copy and an
electronic submission is a mere error of form.”).
SAC insists that emailing the notice of appeal to the district judge’s chambers is
not simply an error of form. But the judge overseeing a case can agree to accept
documents for filing, FED. R. C IV. P. 5(d)(2)(B), and it would be odd if Rule 5(d)(4)’s
“error of form” exemption applied only to the clerk’s office and not the judges tasked
with overseeing the office, see Passananti v. Cook County, 689 F.3d 655, 660 (7th Cir.
2012). The sole question before us, then, is whether the judge here agreed within the
meaning of Rule 5(d)(2)(B) to accept Brooks’s emailed notice of appeal for filing
purposes.
The district judge never stated that he would accept all documents for filing, but
Brooks (with the able assistance of an amicus curiae we recruited) argues that the judge
implicitly agreed to do so. Brooks points to the two times the judge instructed him to
email copies of filings to chambers along with mailing them to the clerk’s office and the
time when chambers filed Brooks’s emailed motion to continue a hearing. But the
judge’s two requests that Brooks email documents do not demonstrate permission to
file all documents this way. If anything, the judge’s rare requests suggest that, absent
such an order, a document had to be mailed only to the clerk’s office.
The district court inadvertently may have confused this message when it filed an
emailed motion on Brooks’s behalf. Although the judge did not agree to accept other
unsolicited emails for filing, it would have been helpful to clarify that this was a one-
time dispensation, not a general practice. See generally Zammit v. IRS, No. 16–2703, 2017
WL 6276122, at *1 (6th Cir. June 30, 2017) (district court agreed to file an unsolicited
document on litigant’s behalf but instructed that all future submissions be filed with the
clerk). But the court did explain that it had filed the motion as a courtesy to Brooks
given the time-sensitive nature of his request. Though Brooks assumed, based on this
conduct, that an agreement to accept filings pursuant to Rule 5(d)(2)(B) existed, his
subjective belief is insufficient to save his appeal.
Nothing in Rule 5(d)(2)(B) dictates how an agreement should be made. Forty-five
years ago, the Second Circuit held that Rule 5(e)—Rule 5(d)(2)(B)’s predecessor—could
not be invoked by a district court sua sponte. Int’l Bus. Mach. Corp. v. Edelstein, 526 F.2d
37, 46 (2d Cir. 1975). It found that the language of the rule 1 suggested that one of the
1 The rule’s language has changed since the Second Circuit decided IBM v. Edelstein. In 1975, the
rule said that the judge “may permit” papers to be filed with chambers. The Second Circuit
believed that the rule would have used language such as “may order” if the court could invoke
the rule unilaterally. Int’l Bus. Mach. Corp., 526 F.2d at 46. The current language allowing parties
to file papers with chambers when a judge “agrees to accept” them would likely support a

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parties must ask the judge to accept filings in chambers. Id. But this reading is in tension
with the wide discretion that district courts have to manage their dockets. See Dietz v.
Bouldin, 136 S. Ct. 1885, 1892 (2016) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936));
Stifel, Nicolaus & Co. v. Lac du Flambeau Band of Lake Superior Chippewa Indians, 807 F.3d
184, 201 (7th Cir. 2015) (citing Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1030
(7th Cir. 1998)). The D.C. Circuit, on the other hand, does not look for the judge to “utter
particular words or offer particular reasons” but asks simply whether the record shows
that “the judge knowingly accept[ed] the filing.” United States v. Brown, 921 F.2d 1304,
1309 (D.C. Cir. 1990); see 28 Fed. Proc., L. Ed. § 65:221 (2020). We find this pragmatic
approach to be sensible.
Although Brooks subjectively believed that he could file his notice of appeal by
emailing chambers, there is no evidence that the judge knowingly accepted his notice of
appeal for filing. Brooks could have tested his assumption by moving for an extension
of time and citing excusable neglect. See 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)(A);
Mayle v. Illinois, 956 F.3d 966, 968 (7th Cir. 2020). But he did not. Particularly important
to demonstrating knowledge in Brown was the district court’s clear action to ensure that
the document would be filed—it marked the date that the document was received and
forwarded it to the clerk’s office. Brown, 921 F.2d at 1309. There is no indication here
that the district judge (or his staff) acted on Brooks’s notice of appeal after receiving it.
Absent the type of conduct demonstrating intent that appeared in Brown, we
would expect courts to establish any alternative method of filing with far more
specificity than we see here. Indeed, numerous district courts, including the Northern
District of Illinois, have done so in response to the Covid-19 pandemic. A November 13,
2020, order continued a temporary reprieve from the restriction on submitting filings by
email in the Northern District of Illinois. In Re: Coronavirus Covid-19 Public Emergency,
Eighth Amended General Order 20-0012, at 2 (N.D. Ill. Nov. 13, 2020). The court made
clear that it is relieving pro se litigants from adhering to typical filing methods. Id. (“The
Court suspends the prohibition against pro se parties emailing their filings.”). But
Brooks’s errant filing occurred long before the pandemic, and the judge here did not
provide similarly specific instructions. Whatever the judge’s intentions concerning the
two documents he instructed Brooks to email may have been, the instructions were
limited to those documents. Brooks was fortunate that the judge also provided the
courtesy of filing one of his motions on his behalf when time was of the essence, but we
can find no evidence of a blanket agreement extending this practice to the filing of any
other documents, including the notice of appeal.
similar line of reasoning. See Agree, O XFORD E NGLISH DICTIONARY (3rd Ed. 2012) (“To accede to
a proposal put forward by another person”).

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By inferring an agreement based on ambiguous conduct and Brooks’s subjective
beliefs, we would be treading on the dominion of the district court to manage its docket
as it sees fit, see Gonzalez, 133 F.3d at 1030, and potentially treading on the statutory
time for taking an appeal. We decline to do so. The notice of appeal was untimely, and
we therefore lack appellate jurisdiction.
DISMISSED

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