EAST PALESTINE — The proverbial clock has struck midnight on five residents appealing last year’s $600 million settlement between Norfolk Southern and members of the public who resided within 20 miles of the 2023 train derailment and chemical spill, as a motion to allow more time to obtain a reduction or an outright elimination of a required $850,000 appeal bond was denied Saturday.

Federal Judge Benita Pearson, who both granted final approval of the settlement in Youngstown’s District Court and who ordered the appeal bond on Jan. 16, rejected a request by David Graham (the attorney representing the appealing residents Rev. Joseph Sheely, Zsuzsa Troyan, Tamara Freeze, Sharon Lynch and Carly Tunno) to expand the deadline window to appeal the bond.

Graham already has filed a motion asking the 6th Circuit Court of Appeals in Cincinnati to reduce or eliminate the bond, but did so March 21 — one day after the deadline.

Also on March 21, Graham filed a motion in Youngstown District Court asking for seven more days, but Pearson’s ruling on Saturday made clear Rules of Appellate Procedure — specifically Rule 4 — weren’t followed and the same rule does not allow for any additional time.

“The Rules [of Appellate Procedure] do not permit any exception for such a late filing, even upon a showing of excusable neglect or good cause,” Pearson’s ruling asserted. “Rule 4 does not provide an exception to untimely motions based on excusable neglect or otherwise.”

Ultimately, Graham argued on the grounds of a clerical error when filing what was submitted as a stay of the appeal bond. The 6th Circuit Court denied the motion due to a “lack of jurisdiction” and on the grounds that court rules mandated that the bond would have to be appealed separately. That decision was rendered March 21, inadvertently but effectively preventing further action from the appealing residents (also known as the appellants and objectors in court documents).

The appellants did not ask for a review of reduction in the appeal bond but rather a stay of Pearson’s order on Jan. 19. Graham admitted mistakenly submitting the motion as a stay by accidentally choosing the wrong dropdown box on PACER’s (the software used to file motions electronically) “menu of limited options.”

That error left the 6th Circuit’s panel with no choice but to rule on the motion as a stay. 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.”

Graham’s motion for more time was buoyed by that lifeline, but Pearson deflated that argument.

“Objectors’ reliance on a passing, conclusory sentence on page 3 of the 6th Circuit Order that they could overcome the jurisdictional issue by seeking an extension of time under Rule 4 is misplaced,” Pearson ruled. “There is no indication that the 6th Circuit performed the calculation of when objectors’ motion was due. It is objectors’ burden to demonstrate they timely filed the within motion. Moreover, ‘ignorance of the rules or mistakes in construing the rules’ does not establish excusable neglect.”

The inability to post an appeal bond does not mean the appeal process stops, but rather means the distribution of money from a judgment or settlement can continue while the appeal process plays out. In this case, payments of up to $70,000 per household were paused while the appeal bond was argued.

If an appeal bond is not paid, payments are distributed and if the appeal is eventually overturned, the burden of recovering paid funds falls on those who appealed.