In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2104
JANET L. M C C ARTY,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
C OMMISSIONER OF S OCIAL S ECURITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06 C 427—Richard L. Young, Judge.
____________
A RGUED A PRIL 18, 2008—D ECIDED JUNE 16, 2008
____________
Before B AUER, F LAUM and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Janet McCarty was hit by a car
in May of 2001 and has suffered from various physical
and mental health problems ever since. She has been
diagnosed with depression, post-traumatic stress dis-
order, and has received treatment for various physical
ailments. After numerous visits to several health care
providers, McCarty applied to receive disability insur-
ance benefits and supplemental security income from
the Social Security Administration in 2004. In her applica-
2 No. 07-2104
tions, McCarty claimed that she had been disabled since
the car accident. The Social Security Agency denied her
applications, and on July 13, 2005, an administrative law
judge (“ALJ”) held a hearing on McCarty’s applications.
The ALJ reviewed her medical records, heard McCarty’s
testimony, and determined that McCarty’s conditions
did not meet or equal the disabilities required for bene-
fits, and that she was capable of doing light work, thus
she was not eligible for disability benefits or supple-
mental security income. The ALJ denied McCarty’s ap-
plications for benefits. The Appeals Council denied
McCarty’s Request For Review and so the ALJ’s decision
became the final decision of the Commissioner.
McCarty filed a complaint in the United States District
Court for the Southern District of Indiana, which issued
a final order dated March 9, 2007, affirming the ALJ’s
ruling, finding that there was substantial evidence in
the record to support the ALJ’s findings. Pursuant to
Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure,
McCarty had sixty days to file a notice of appeal.
Sixty-three days later, on May 11, 2007, McCarty filed a
notice of appeal. On May 16, 2007, this Court asked
McCarty to file a memorandum explaining why this case
should not be dismissed for lack of jurisdiction and to
explain the status of any motion for an extension filed
with the district court.
On June 5, 2007, McCarty filed a motion with the dis-
trict court requesting a three-day extension to file her
notice of appeal and supportive memorandum (along
with a suggested order). That memorandum explained
that McCarty’s attorney misunderstood paragraph eleven
of the Administrative Policies and Procedures Manual
for the Southern District of Indiana, which addressed
No. 07-2104 3
service of electronically filed documents, to mean that he
had an additional three days to file a notice of appeal, as
provided by Fed. R. Civ. P. 6(e).1 On June 8, 2007, the
district court granted the extension by signing the sug-
gested order submitted by McCarty.
On June 20, 2007, the Commissioner filed a Motion for
Reconsideration and supporting memorandum with
the district court. McCarty filed a memorandum in op-
position to the Commissioner’s motion, and on August 10,
2007, the district court denied the motion for reconsid-
eration. This appeal ensued.
On appeal, McCarty argues that substantial evidence
fails to support the ALJ’s conclusions that she did not
qualify for disability insurance benefits. In the response
brief, the Commissioner asserts that the district court
abused its discretion by granting McCarty’s motion for
an extension of time to file the notice of appeal, and that
this Court therefore lacks jurisdiction.
We begin (and end) with our appellate jurisdiction. A
timely notice of appeal is a prerequisite to appellate
review. Robinson v. City of Harvey, 489 F.3d 864, 867 (7th
Cir. 2007); Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir.
2005). When a party to a civil suit is the United States or
1
At the time of the events of this case, Fed. R. Civ. P. 6(e) stated:
Additional Time After Certain Kinds of Service. Whenever
a party must or may act within a proscribed period after
service and service is made under Rule 5(b)(2)(B), (C), or
(D), 3 days are added after the proscribed period would
otherwise expire under subdivision (a).
Fed. R. Civ. P. 6 was has since been amended, and this provision
remains substantively identical but is now found at Rule 6(d).
4 No. 07-2104
its officer or agency, a notice of appeal must be filed within
sixty days after the entry of the judgment or order being
appealed. Fed. R. App. P. 4(a)(1)(B). A district court may
extend the time to file a notice of appeal if a party can
show excusable neglect for her tardiness. Fed. R. App. P.
4(a)(5)(A)(ii); see Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132,
133 (7th Cir. 1996). A district court’s determination that
excusable neglect is established is reviewed for an abuse
of discretion. See Garwood Packaging, Inc. v. Allen & Co.,
Inc., 378 F.3d 698, 700 (7th Cir. 2004).
The standard for reviewing whether neglect was
“excusable” is an equitable one, taking into considera-
tion relevant circumstances, including (1) the danger of
prejudice to the non-moving party; (2) the length of the
delay and its impact on judicial proceedings; (3) the rea-
son for the delay (i.e., whether it was within the reason-
able control of the movant); and (4) whether the movant
acted in good faith. Pioneer Inv. Serv. Co. v. Brunswick
Assocs., 507 U.S. 380, 395 (1993); Marquez, 424 F.3d at 541.
The term “excusable neglect” as used in Rule 4(a)(5) refers
to the missing of a deadline as a result of things such as
misrepresentations by judicial officers, lost mail, and
plausible misinterpretations of ambiguous rules. Prizevoits,
76 F.3d at 134. Although the federal rules are complex,
experienced federal litigators ought to be held strictly
to them. See, e.g., United States v. Guy, 140 F.3d 735, 735-36
(7th Cir. 1998) (finding inexcusable neglect where ex-
perienced federal litigator miscalculated the time to file a
notice of appeal because he relied on rules governing
procedure in the district court, not in the court of appeals);
Prizevoits, 76 F.3d at 133-34 (finding inexcusable neglect
where experienced federal litigator failed to properly
interpret time limit for filing a notice of appeal where
No. 07-2104 5
plain language of the rule was unambiguous); but see
United States v. Brown, 133 F.3d 993, 997 (finding ex-
cusable neglect where a Wisconsin attorney who prac-
ticed exclusively in state court miscalculated a filing
deadline in his first federal case). A simple case of miscal-
culating a deadline is not a sufficient reason to extend
time, and judges do not have “carte blanche” authority to
allow untimely appeals. Marquez, 424 F.3d at 541.
McCarty asserts that the district court did not abuse
its discretion in granting an extension of time for her to file
a notice of appeal.2 In its order denying the Commis-
sioner’s motion to reconsider the extension, the district
court determined that the three-day delay did not prej-
udice the Commissioner or unnecessarily delay the
judicial proceedings, and that dismissal of McCarty’s
appeal would be too harsh of a sanction for a relatively
minor mistake.
We find that the district court abused its discretion in
granting McCarty’s motion for an extension of time to
file a notice of appeal. While the district court was cor-
rect in considering the prejudicial effect of the delay, it
was incorrect in determining that the absence of any
harm meant that the attorney’s mistake was excusable.
This Court has repeatedly noted that there is unlikely ever
2
Although the district court did not explain why it granted the
extension when it signed McCarty’s suggested order granting
the extension, it sufficiently explained its reasoning for allowing
the extension in its order denying the Commissioner’s motion
to reconsider the extension. See Guy, 140 F.3d at 736 (noting
that “[o]rdinarily, when a district judge fails to explain a
nonobvious exercise of his discretion, the proper remedy is to
remand the case for him to do so”).
6 No. 07-2104
to be harm in the Rule 4(a)(5) setting, because the neg-
lectful appellant has a limited time period to request
relief—in this case, sixty days—hence there will never
be a terribly long delay. Marquez, 424 F.3d at 541-42;
Prizevoits, 76 F.3d at 134. Thus, “[t]he word ‘excusable’
would be read out of the rule if inexcusable neglect
were translated into excusable neglect by a mere absence
of harm.” Prizevoits, 76 F.3d at 134. The district court was
also incorrect in characterizing the attorney’s error as a
“relatively minor mistake”; a timely notice of appeal is a
mandatory prerequisite to appellate jurisdiction, and a
failure to timely file results in dismissal of the case.
Marquez, 424 F.3d at 542 (holding that the case must be
dismissed for lack of appellate jurisdiction where notice
of appeal was untimely). Depriving one’s case of a prereq-
uisite for appellate review can hardly be considered
a “relatively minor mistake.”
The attorney’s understanding that Federal Rule of Civil
Procedure 6(e) provided him with three extra days to
file a notice of appeal is inexcusable. An unaccountable
lapse in basic legal knowledge is not excusable neglect. See
Prizevoits, 76 F.3d at 133. Rule 6(e) only enlarges the
filing time when the period for acting runs from the
service of a notice, not when the time for acting is desig-
nated from the entry of judgment. See Johnson v. McBride,
381 F.3d 587, 589 (7th Cir. 2004); Kyle v. Campbell Soup Co.,
28 F.3d 928, 930 (9th Cir. 1994). The distinction between
“entry of judgment” and “service of a notice” is unambigu-
ous to any trained lawyer such that the attorney’s error
cannot be categorized as “a plausible misinterpretation
of an ambiguous rule.” See Guy, 140 F.3d at 736. Even if
it was not clear that, based on the plain language of
Rule 6(e), the additional three days did not apply to the
No. 07-2104 7
filing of a notice of appeal, this Court has explicitly
stated that “Fed. R. Civ. P. 6(e) applies only to documents
‘served’ on opposing counsel, not to documents such as
complaints or notices of appeal that must be filed in
court.” Johnson, 381 F.3d at 589. It is clear that, pursuant
to Rule 6(a)(1)(B), McCarty’s deadline for filing a notice
of appeal was May 8, 2007. That should have been clear to
any federal litigator, and to read it the way McCarty’s
attorney has constitutes inexcusable neglect.
Like the attorney in Guy, McCarty’s attorney is an
experienced federal litigator, having thirty-nine years of
experience and having argued before this Court at least
a dozen times. McCarty’s attorney’s interpretation that
the Administrative Policies and Procedures Manual for
the Southern District of Indiana would dictate filings in
this Court is also implausible. See Guy, 140 F.3d at 736
(holding that attorney’s reliance on district court rules of
procedure in filing an appeal constitutes inexcusable
neglect). This mistake amounts to inexcusable neglect, and
the district court abused its discretion in granting
McCarty’s motion for an extension of time to file a notice
of appeal. We find the notice of appeal to be untimely;
therefore we lack jurisdiction over McCarty’s appeal.
We hasten to add that even if we had jurisdiction over
McCarty’s appeal, the district court properly found that
the ALJ’s decision was supported by substantial evidence.
McCarty’s appeal is dismissed.
USCA-02-C-0072—6-16-08