On May 2, 2023, the United States Court of Appeals for the Third Circuit issued an Order adopting a new Local Appellate Rule 26.1 and amending Local Appellate Rule 113.3 in order to establish a 5:00 p.m. electronic filing deadline. The new Local Appellate Rule 26.1 considers a document timely filed if it is received by the Clerk by 5:00 p.m. Eastern on the last day for filing or, if filed electronically, the transaction is completed by 5:00 pm. Eastern on the last day for filing. L.A.R. 26.1(a)(1) & (3); L.A.R. 113.3(c). If a document is received after 5:00 p.m. on the day it is due, it is considered untimely. L.A.R. 26.1(a)(2).

While the intent of the new 5:00 p.m. Eastern filing deadline is plainly to avoid late-night filings just before midnight, the new 5:00 p.m. timing requirement does not apply to every filing. Instead, per the new Local Appellate Rule 26.1, it “applies to documents filed after the initiation of a proceeding in the court of appeals. It does not apply to documents that initiate an appeal or other proceeding in the court of appeals.” L.A.R. 26.1(b). According to a Public Notice from the Third Circuit Court of Appeals, “[t]he Clerk’s Office will apply the 5:00 p.m. E.T. deadline to deadlines set on or after July 1, 2023, and also observe a grace period until December 31, 2023, for papers mistakenly filed after 5:00 p.m. E.T.” Importantly, this new electronic filing deadline only applies to the Third Circuit Court of Appeals.

Attorneys may consider setting a reminder notification on their calendars for July 1, 2023, which is when the new time electronic filing deadline becomes effective, even though there is a “grace period” until the end of the year. Appellate counsel should not only be cognizant of this new electronic filing deadline for purposes of making timely submission to the Court, but this new electronic filing deadline may also potentially impact the attorney-client interactions that precede the ultimate filing of a brief. Soon in the Third Circuit, discussions between counsel and clients regarding the “final details” of a brief cannot approach midnight for a brief due that day. Instead, they must soon be resolved by dinner time.