EAST PALESTINE — Aside from being $850,000 short, those appealing the $600 million class-action settlement between Norfolk Southern and class members could also be a day late.

Attorney David Graham, representing appellants Zsuzsa Troyan, Tamara Freeze, Sharon Lynch, Carly Tunno and the Rev. Joseph Sheely, filed a motion, asking the U.S. District Court in Youngstown for more time to allow the Sixth Circuit Court of Appeals in Cincinnati to reduce or eliminate the $850,000 bond required to continue the appeal process of the settlement’s final approval.

That motion was filed on March 21 and, according to a counter motion submitted on Wednesday by Seth A. Katz — one of the attorneys who brokered the historic deal and who still represents the rest of the class members — Graham’s request came one day after the deadline.

“The instant motion was untimely filed on March 21 as the deadline to file a notice of appeal of the bond order was Feb. 18 and the deadline for moving to extend the time to appeal was March 20,” Katz argued. “There is no basis under the rules for this court to grant relief from such untimeliness.”

The appeals ran into a roadblock when Northern District Court Judge Bentia Pearson, who granted final approval of the settlement, ordered the appellants to pay a nearly $1 million bond on Jan. 16. Pearson’s order came with a 14-day deadline, before it was appealed to the Sixth Circuit.

However, proper procedure wasn’t followed. The appellants did not ask for a review of reduction in the appeal bond but rather a stay of Pearson’s order. Graham, who filed the appeal on behalf of the appealing class members, admitted mistakenly submitting the motion as a stay by inadvertently choosing the wrong dropdown box on the menu of limited options on PACER, the software used to file motions electronically.

The clerical error left the Sixth Circuit’s panel with no choice but to rule on the motion as a stay, which they denied as “a final order entered after judgment requires a separate notice of appeal.”

The Court of Appeals did leave the appealing residents a lifeline, writing that they “could still obtain review of the bond order by filing a direct appeal from that order.”

The question at hand now is whether the appellants had any time to do so. The Sixth Court denied the stay motion on March 21 — one day after the deadline to appeal the bond. Graham filed a request for an extension on the same day the appeal ruling was rendered, arguing there was nothing to do but wait for that decision. The missed deadline could be overlooked if “a party shows excusable neglect or good cause.”

“The subsequent passage of time was beyond appellants’ control, or that of their counsel,” Graham wrote. “After a reply in support of the motions was filed by appellants’ counsel on Jan. 31 the 6th Circuit’s consideration continued until issuance of its decision today, March 21. Had the motion been dismissed for lack of jurisdiction on or before Feb. 18, appellants would still have been within the 30 days for filing notice of appeal.”

Katz’s motion disagreed.

“Contrary to appellants’ assertion, the delay of time from when appellants’ motion to eliminate or reduce the appeal bond was fully briefed on Jan. 31 to the date of the Sixth Circuit’s order on March 21 does not constitute good cause to extend the time for an appeal. It was fully within their control,” Katz countered. “Appellants could have filed a notice of appeal or motion for an extension of time to file an appeal at any point in time between the issuance of the bond order and March 20 – their last day to do so under Rule 4. In fact, it was required and within their control.”

Rule 4 of the Appellate Procedure sets the protocol and guidelines for timely notices and deadlines.

The motions by Graham and Katz literally put the ball back in Pearson’s court as Pearson will render the ruling on whether an extension is granted.

The appeals have put property damages, or direct payments, on hold for more than 55,000 class members who live within 20 miles of the 2023 train derailment and who filed a claim to receive up to $70,000 per household.