EAST PALESTINE — Residents appealing the $600 million class action settlement between Norfolk Southern and members of the public impacted by the 2023 train derailment are still required to post an appeal bond — at least for now — the U.S. Court of Appeals for the 6th Circuit ruled on Friday.

A three-judge panel denied the appealing residents’ motion to eliminate or reduce the $850,000 bond. Federal Judge Benita Pearson ordered Rev. Joseph Sheely, Zsuzsa Troyan, Tamara Freeze, Sharon Lynch and Carly Tunno to post the bond on Jan. 16 with each appellant responsible for one-fifth or $170,000. Pearson’s order also came with a 14-day deadline, before it was appealed to the Sixth Circuit.

In rendering its decision Friday, the appeal judicial panel made its decision based on improper procedure, as the motion filed by the appellants — also referred to as the “objectors” in court documents — did not ask for a review of reduction in the appeal bond but instead asked for a stay of Pearson’s order. Attorney David 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 PACER’s (the software used to file motions electronically) “menu of limited options.”

“To address the appeal bond would be on a motion to stay, which the objectors have definitively stated is not their intent,” the Sixth Circuit ruled. “They state that (no) appellant either seeks or desires such a stay, and instead are asking us to review the merits of the appeal bond decision. Assuming that we cannot construe a motion contrary to counsel’s stated intentions, we lack jurisdiction to address the merits of the bond order in these appeals.”

The clerical error left the panel with no choice but to rule on the motion as a stay.

“The general rule is that a final order entered after judgment requires a separate notice of appeal,” the appeal court wrote. “The objectors offer no controlling authority stating that we may review, on appeal from a settlement agreement, the merits of a later bond order that has not been separately appealed.”

However, the door on such a review is not closed as the Sixth Circuit pointed out in Friday’s ruling. In its decision, the court wrote that the appellants “cannot show irreparable harm, in part because they could still obtain review of the bond order by filing a direct appeal from that order.”

Pearson ordered an appeal bond in January, dismissing the argument from Graham that an appeal bond was a “barrier” to the appellants in pursuing their rights to appeal her final approval granted in September. Pearson called the appeal bond ” a guardrail, not a barrier” and found that “an appeal bond in the amount requested is an appropriate response to the costly circumstances the appeals trigger.”

The bulk of the appeal bond — $825,000 — is the amount Kroll Settlement Administration maintains an appeal would generate for the New York firm processing the 55,000 claims made against the settlement. Aside from the additional fees to Kroll, Pearson’s ruling signed off on $25,000 that class co-counsel estimated “in taxable expense for the appeal.” Those expenses include docket fees and printing and copying costs during the appeal writing and oral argument stages.

In arguing against an appeal bond or a reduction in the nearly $1 million one ordered, Graham has taken shots at class action counsel, using language like “figures don’t lie, but liars figure” and has previously accused plaintiff counsel of withholding or burying expert testimony. The appeals court scolded Graham for what it called “inflammatory language.”

“On a final note, we emphasize that advocates have an obligation to treat the court and each other respectfully. We thus caution counsel for the objectors that further use of inflammatory language will not be tolerated by this court,” the Sixth Circuit wrote. “This includes attacks on the district court and class counsel, both of whom counsel for the objectors has been accused of unprofessional conduct relating to these proceedings.”

With the appeal bond ordered and the stay of that order denied, it’s unclear what the action will be in the appeal process that pressed pause on the payouts of the direct payment or property damages, capped at $70,000 per household. Oral arguments are expected to be scheduled within the next nine months.