In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1691
KENNETH MAYLE,
Plaintiff-Appellant,
v.
STATE OF ILLINOIS and NIRAV D. SHAH, in his official capacity
as Director of Illinois Department of Public Health,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-02924 — Robert W. Gettleman, Judge.
____________________
SUBMITTED APRIL 10, 2020* — DECIDED APRIL 23, 2020
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. For the second time, Kenneth
Mayle has sued the State of Illinois to challenge state laws pro-
hibiting bigamy, adultery, and fornication. The district court
* We have agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. Fed. R. App. P.
34(a)(2)(C).
2 No. 19-1691
dismissed this second suit, in part on issue preclusion and in
part for lack of standing. We affirm.
Mayle is a self-proclaimed Satanist. He says he is a fol-
lower of The Law of Thelema, a set of beliefs developed in the
early 1900s by Aleister Crowley. (The beliefs echo the rule of
the fictional Abbey of Thélème in Rabelais’s Gargantua and
Pantagruel, “Do what thou will.”) As part of this religion,
Mayle participates in what he calls “sex magick rituals” that
he believes violate Illinois’s laws forbidding adultery and for-
nication. See 720 ILCS 5/11-35, 5/11-40. Mayle says that he rea-
sonably fears prosecution for practicing his beliefs. He also
says that he wants to marry more than one person at the same
time and that if he were to do so, he would violate Illinois’s
law against bigamy. See 720 ILCS 5/11-45.
In 2017 Mayle filed his first challenge to these laws seeking
declaratory and injunctive relief under the First and Four-
teenth Amendments. The district court (in that case, Judge St.
Eve) granted the defendants’ motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Mayle v. Orr,
No. 17 C 0449, 2017 WL 1316269 (N.D. Ill. Apr. 10, 2017). The
court ruled that Mayle’s bigamy claim was barred by Su-
preme Court precedents upholding the constitutionality of
anti-bigamy laws. The court then dismissed for lack of stand-
ing Mayle’s challenges to Illinois’s adultery and fornication
statutes. He could not show a reasonable fear of prosecution,
so he lacked standing to sue. See id. at *2, citing ACLU v. Al-
varez, 679 F.3d 583, 590–91 (7th Cir. 2012).
Mayle did not appeal, but the next year he filed this suit
challenging the same statutes for the same reasons. The dis-
trict court (Judge Gettleman) dismissed this case as well. The
court explained that Mayle’s bigamy claim was precluded by
No. 19-1691 3
the 2017 final judgment on the merits. The court also adhered
to the earlier conclusion that Mayle lacked standing to chal-
lenge the State’s adultery and fornication laws because he still
showed no reasonable fear of prosecution. The court entered
judgment on March 7, 2019.
We first address our jurisdiction over this appeal. Mayle
did not file a notice of appeal within thirty days of the judg-
ment. See Fed. R. App. P. 4(a)(1)(A). Instead, on April 10, two
days after the thirty-day deadline expired, he filed a motion
in the district court seeking an extension under Rule 4(a)(5)(A)
and 28 U.S.C. § 2107(c), which give a district court discretion
to extend the deadline for “excusable neglect or good cause.”
Mayle offered two grounds. First, since he changed his ad-
dress in January 2018, his mail had been “misrouted or not
forwarded to the proper address.” Second, a business trip in
the week leading up to the deadline had “delayed him from
access to his legal filings.” On April 11, the district court sum-
marily granted the motion and accepted the notice of appeal.
Relying on Nestorovic v. Metropolitan Water Reclamation
Dist. of Greater Chicago, 926 F.3d 427, 431–32 (7th Cir. 2019)
(per curiam), the State asserts that we lack jurisdiction. It con-
tends the district court abused its discretion in summarily
granting Mayle’s motion for a two-day extension of time. It
also contends that Mayle’s reasons for his tardiness—mail
trouble and a business trip—did not amount to “excusable ne-
glect or good cause” under 28 U.S.C. § 2107(c).
Keeping in mind that our review is only for abuse of dis-
cretion, we disagree. To begin with, this case is not like Nes-
torovic, which we decided on narrow grounds. In her motion
for an extension, appellant Nestorovic had provided “little to
explain what excusable neglect or good cause warranted the
4 No. 19-1691
requested extension,” Nestorovic, 926 F.3d at 429, and we
found nothing in the record that could have justified granting
her motion. We explained that a court “abuses its discretion
when the record contains no evidence on which it could have
rationally based its decision ….” Id. at 431, citing James v. Eli,
889 F.3d 320, 328 (7th Cir. 2018).
In contrast, Mayle provided two plausible bases for an ex-
tension in his motion. The district court had considerable lee-
way in deciding whether those bases demonstrated “excusa-
ble neglect.” There is no issue here of “good cause.” Mayle’s
excuses showed his neglect, but that hardly settles the ques-
tion. The point of the excusable-neglect standard is that ne-
glect is assumed. The district court has discretion to excuse it.
See Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd.
Pʹship, 507 U.S. 380, 395 (1993). “[E]xcusable neglect is a some-
what elastic concept and is not limited strictly to omissions
caused by circumstances beyond the control of the movant.”
Id. at 392 (internal quotations omitted). Reasonable judges
could differ on whether to excuse Mayle’s neglect. It was up
to the district court—not an appellate court—to decide
whether to excuse his neglect. And while lack of prejudice to
opposing parties does not entitle a late appellant to an exten-
sion, the lack of prejudice from allowing a two-day delay is
relevant and was surely evident to the district judge here.
Moreover, Nestorovic did not forbid district courts from is-
suing summary orders like the district court’s order here.
True, in Nestorovic we questioned the district court’s sum-
mary grant—but only because the record contained no evi-
dence of “excusable neglect or good cause” that could have
justified it. 926 F.3d at 431. In this case, Mayle did not offer
good cause, but he confessed in essence to neglect. He offered
No. 19-1691 5
understandable, albeit far from compelling, excuses for that
neglect. In effect, he threw himself and his appeal on the dis-
cretionary mercy of the district court. See United States v. Kim-
berlin, 898 F.2d 1262, 1264 (7th Cir. 1990) (dismissing appeal
where extension was denied; someone who misses deadline
for appeal must throw himself on mercy of district judge, and
while power is not license for whimsy, appellate review is
deferential) (superseded by rule on other grounds), citing Lo-
renzen v. Employees Retirement Plan of Sperry & Hutchinson Co.,
896 F.2d 228, 232–33 (7th Cir. 1990) (allowing appeal where
extension was granted; appellate court would have affirmed
either grant or denial of extension).
Federal civil practice is full of deadlines and rules. They
vary in how strictly they must be enforced. Deadlines are im-
portant, but if every missed deadline were fatal, federal courts
would decide a lot fewer civil cases on their merits. In the hu-
man system of federal civil litigation, people make mistakes.
Defendants miss deadlines to answer. Plaintiffs miss dead-
lines to serve process. Many parties miss deadlines for discov-
ery responses or for filing briefs. And Rule 4(a)(5)(A) and 28
U.S.C. § 2107(c) recognize that appellants sometimes miss the
deadline for a notice of appeal.
Many deadline provisions, though not all, give judges dis-
cretion to overlook mistakes, particularly if they cause no sig-
nificant harm. We should not apply close appellate scrutiny
to such a routine and discretionary call as this one by a busy
district judge. Nor should we lightly assume that the judge
did not understand the familiar legal standard that applied—
excusable neglect. Where there is an evident path from the
record to the district court’s discretionary decision, it would
6 No. 19-1691
be pointless to remand for a written explanation of the obvi-
ous. The district judge would not have abused his discretion
if he had denied the extension, but he also did not abuse his
discretion by granting it. Mayle’s notice of appeal was timely.
We have jurisdiction over this appeal.
On the merits, we can be brief. The district court’s reason-
ing was sound. The court correctly dismissed Mayle’s chal-
lenge to Illinois’s bigamy laws on preclusion grounds, having
already rejected a nearly identical challenge in his earlier fed-
eral suit. Mayle v. Orr, No. 17 C 0449, 2017 WL 1316269 (N.D.
Ill. Apr. 10, 2017). “[I]ssue preclusion ordinarily bars relitiga-
tion of an issue of fact or law raised and necessarily resolved
by a prior judgment.” Bravo-Fernandez v. United States, 137 S.
Ct. 352, 358 (2016). Here the parties and issues in the bigamy
challenge were identical. Likewise, the court correctly dis-
missed Mayle’s challenges to Illinois’s adultery and fornica-
tion laws for lack of standing. Those laws no longer are en-
forced, so Mayle could not show a reasonable fear of prosecu-
tion. See, e.g., Peña v. Mattox, 84 F.3d 894, 900 (7th Cir. 1996)
(“[A]dultery [and] fornication [laws] remain on the statute
books, archaic and unenforced, as a residue of legislative in-
ertia.”). Nothing relevant has changed on that front since the
2017 dismissal.
The judgment of the district court is
AFFIRMED.