EAST PALESTINE — The appeal of last year’s $600 million settlement between Norfolk Southern and residents impacted by the 2023 derailment and chemical spill is dead in the water, a brief filed in Cincinnati’s Sixth Court on behalf of appellees insists.

“Some cases present thorny questions about unsettled law and its application to unclear facts. This is not one of those cases,” the brief stated. “The rules concerning jurisdictional filing deadlines are open-and-shut, and so is this appeal.”

The brief answers a motion filed by David Graham — the attorney representing the five residents appealing the settlement — that asked the court for oral arguments and a reduction or elimination of a nearly million dollar bond that Rev. Joseph Sheely, Zsuzsa Troyan, Tamara Freeze, Sharon Lynch, and Carly Tunno were ordered to pay to continue the appeal process.

At the heart of the recent filings is whether the expired deadline to ask for a reduction bond can be circumvented. Graham insists it can and should be.

Federal Judge Benita Perason, who granted final approval of the settlement in Youngstown’s District Court last September, ordered the appellants to post a $850,000 appeal bond on Jan. 16. The appellants had until Feb. 18 to file a notice of appeal to challenge the district court’s entry of the appeal bond and until March 20 to ask for more time to do so.

Graham filed a motion asking the Sixth Circuit Court of Appeals in Cincinnati to reduce or eliminate the bond, but did so on March 21 — one day after the deadline and on the same day the Sixth Circuit Court ruled on a motion to stay the bond order. That motion was denied as the Sixth Circuit has no jurisdiction over such a matter. 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.” By doing so, he did not ask for a review of reduction in the appeal bond but rather a suspension of Pearson’s order. Also on March 21, Graham asked Pearson for an extension to file a bond appeal. That too was denied on the grounds of being one day past the deadline.

Those facts, according to the appellees’ brief filed by Paul Clement on behalf of the class members and class co-counsel, make the request for oral arguments a moot point. While Graham believes deadline procedures can be circumvented, Clement does not.

“Oral argument is not necessary to resolve this appeal,” he wrote. “The appellants failed to meet the deadlines that govern the transfer of authority from a district court to this court, and those deadlines are statutory, jurisdictional, and non-extendable.”

Clement went on to call the failure of the appellants to comply with those deadlines “fatal.”

Graham has used recent filings to further argue for a reduction or elimination of the bond, calling it a roadblock to his financially-strapped right to appeal and maintains that $850,000 is simply way too high. Graham insists there is math to support that additional fees caused by the appeal would come close to that number.

The fairness or excessiveness of the bond can no longer be considered or criticized, Clement argued. He said that the appeal comes down to just one question — did the district court abuse its discretion by denying the appealing residents’ more time to appeal the bond? “The answer to that question is no. Indeed, the district court had no other lawful option. That should be the end of the matter,” he argued.

Pearson’s bond order required payment of the $850,000 – each appealing resident was responsible for posting $170,000 – be submitted to the court “within 14 days” of the Jan. 16 order.

Clement’s brief pointed out the appellants did not post the bond and “still have not”.

Direct payments — also known as property damages for those who lived or owned businesses within 20 miles of the derailment — have been put on hold while the appeal plays out. Over 55,000 claims were filed and direct payments could be as high as $70,000 per household.