In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4042

CLARENCE GROSS,

Plaintiff-Appellant,

v.

TOWN OF CICERO, ILLINOIS, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 03 C 9465—John W. Darrah, Judge.

____________

DECIDED JUNE 6, 2008

____________

Before EASTERBROOK, Chief Judge, and CUDAHY and

MANION, Circuit Judges.

EASTERBROOK, Chief Judge. This appeal was closed

administratively on May 9 for failure to prosecute. Appellant has asked for reconsideration. That motion has

been referred to the motions panel for the week in which

the appeal was dismissed, given the rule that a single

judge cannot “dismiss or otherwise determine an appeal”.

Fed. R. App. P. 27(c).

Clarence Gross was Chairman of Cicero’s Board of

Police and Fire Commissioners until January 2002. He
2 No. 06-4042

contends in this action under 42 U.S.C. §1983 that his

removal violated the first amendment and the equal

protection clause of the fourteenth. Some issues were

resolved by summary judgment. After a bench trial on the

remaining issues, the judge found in defendants’ favor—not only on Gross’s claim but also on Cicero’s counterclaim for restitution. Gross filed a notice of appeal on

November 15, 2006. The record reached this court on

December 12. That started the 40 days for appellant to

file his brief. Fed. R. App. P. 31(a)(1).

Although the brief thus was due in January 2007, the

court granted motions for extra time. After the delay

had lasted beyond a year, appellees opposed a motion

seeking yet more time. The court on March 6, 2008, allowed

appellant all of the time he requested in his latest motion—until April 21, 2008—but added: “No further extensions of time will be granted, and failure to file the

appellant’s brief by the due date as extended will result

in the dismissal of the appeal for failure to prosecute.”

When the brief did not appear until April 25, this promise

was kept and the appeal was dismissed. This is the

order that appellant wants us to rescind.

Appellant gives two reasons for the belated filing. First,

he maintains, the delay from January 16, 2007, the original due date, to April 21, 2008, was not so long that the

court should have forbidden further extensions. The parties

were engaged in negotiations, counsel says, and it made

sense to explore settlement before investing the efforts

needed to write a brief. There are several problems with

this line of argument, not least that if Gross’s counsel

deemed the order of March 6 improvident, she should

have asked us to reconsider that order, rather than filing

four days late. Courts cannot operate without setting
No. 06-4042 3

and enforcing deadlines. More than 17 months passed

between the notice of appeal and the final due date for

the opening brief; that is ample. What’s more, counsel

for the appellees informed appellant’s lawyer on March 3

that he would not agree to further delay, and appellant’s

lawyer does not say that any additional negotiations

occurred. Plenty of time remained to meet the April 21

deadline for the opening brief.

Second, appellant’s lawyer relies on Fed. R. App. P.

25(a)(2)(B), which reads:

A brief or appendix is timely filed . . . if on or

before the last day for filing, it is:

(i) mailed to the clerk by First-Class Mail, or

other class of mail that is at least as expeditious, postage prepaid; or

(ii) dispatched to a third-party commercial

carrier for delivery to the clerk within 3 calendar days.

The “Proof of Service” included with appellant’s brief

reads: “The undersigned states that the [brief] was

served . . . by placing the document in envelopes,

postage prepaid, and delivering it to the United States

Postal Service on April 21, 2008”. Counsel further represented that “one original and fourteen paper copies of

the Appellant’s brief were sent this 21st day of April,

2008 via commercial carrier to” the court. If these statements had been true, then the brief would have been

accepted. But they are not true, as appellant’s counsel

now admits. The brief arrived in the clerk’s office on April

25 by courier, and accompanying documents show that it

was placed in the courier’s hands on April 25, not April 21.
4 No. 06-4042

The motion to reconsider represents that counsel planned

to ship the brief by FedEx on April 21 and left the task to a

paralegal, who delegated it to an assistant, who did not

do it. Not until April 25 did the paralegal discover that

the brief had not been dispatched. The paralegal then

arranged for a courier to deliver the brief to the clerk’s

office. Counsel adds in a footnote: “Unfortunately, this

has not been the first time [that counsel] has had issues

with that particular employee, who has since been disciplined.”

Although the motion to reconsider tells us that the

paralegal was out of the office from April 22 through

April 24, it does not reveal why counsel herself did not

ensure that an employee, known to be unreliable, had

dispatched the brief (or for that matter why the paralegal lacked a system for checking up). The law is full of

deadlines, and delay can lead to forfeiture. See Schiavone

v. Fortune, 477 U.S. 21 (1986); United States v. Locke, 471

U.S. 84 (1985). Complaints must be filed by the last day

of the period of limitations. So must collateral attacks,

and a single day’s delay can foreclose review even in a

capital case. See Johnson v. McBride, 381 F.3d 587 (7th Cir.

2004). The time for filing a notice of appeal is even more

strict; it is a jurisdictional limit. See Bowles v. Russell,

127 S. Ct. 2360 (2007).

Time limits set by judges, unlike those in statutes, often

can be extended, and the time for filing a brief is one

of those flexible periods. See Fed. R. App. P. 26(b). When

judges can decide whether to be strict or lenient, it is

important to match the sanction to the offense. See

Mommaerts v. Hartford Life & Accident Insurance Co., 472

F.3d 967 (7th Cir. 2007); Bleitner v. Welborn, 15 F.3d 652

(7th Cir. 1994). Small shortcomings should not be treated
No. 06-4042 5

the same as serious ones; otherwise people will take

excessive care to avoid small injuries, while there will be

no marginal deterrence of more serious problems. At the

same time, the right response to carelessness of the sort

exhibited here is not to say “never mind” and proceed as

if everything had been done properly. Then deadlines

would be toothless. Both the court and the appellees

have been inconvenienced by the false certificate and

the delay. The court and its staff have had to handle several rounds of unnecessary submissions; appellees devoted legal time to filing motions to strike the untimely

brief, and responding to the motion to reconsider.

Financial sanctions can fill the gap between winking

at the delict (Gross’s preferred outcome) and dismissal

with prejudice (appellees’ preference). The injury here is

financial (legal time, and even inconvenience, have monetary equivalents), so a financial penalty is appropriate.

We will reinstate the appeal if, within ten days, appellant’s counsel pays a sanction of $5,000, half to appellees

and half to the clerk of court. Otherwise the motion to

reconsider will be denied. We do not pretend that $5,000

is a figure reached by exact calculation, but it is enough

to lead to more care in the future, without being too

large in relation to the normal legal costs of handling

an appeal.

USCA-02-C-0072—6-6-08