Saturday, May 14, 2011


Update 24: On May 12, 2011 the Fourth Circuit filed an order denying the petition for rehearing en banc on the grounds that it was not timely filed. As every litigator knows, American courts have traditionally accorded pro se plaintiffs more flexibility on matters of court procedure in order to achieve the ends of justice. This decision comes after a motion for reconsideration on this point where I cite to Federal Rule of Appellate Procedure 25: "Filing, Methods and Timeliness," stating that a brief is timely if mailed to the clerk on or before the last day of filing (which it was). I also explained to the court that I was unaware of a local rule of the Fourth Circuit which treats the petition for rehearing as a "document" and not a "brief," which means it has to be actually received and filed by the clerk by the deadline. I am also informed that although the papers were accepted by the court from the post office on the morning of April 1st they were not actually filed until April 4th. This places litigants, particularly pro se litigants, at a distinct disadvantage to attorneys who are now required to file electronically and would not have to cut their response times short in order to allow for mailing time plus an apparent three-day delay at the Fourth Circuit's intake. In other words, a fourteen-day deadline could easily become a ten-day deadline for pro se litigants. Although I requested the court to invoke the traditional leniency for pro se litigants on matters of court procedure, the court at the direction of Judge Diana Motz refused to do so.

I have contacted Assistant Attorney General Catherine Hill with a request to preserve the essays and short answers while this litigation proceeds, and she has agreed.

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