concurring:
Although I join the majority opinion in full, I write separately to briefly emphasize the two points that I believe dispositive of this case and that explain why I cannot agree with an otherwise persuasive dissent.
First, in his dissent, Judge Kozinski concludes that “[m]ost of the work” is done by Pioneer’s third factor — the reason for the delay. Post at 862. But Pioneer portends a balancing test, and does not ascribe determinative significance to any single factor. In other words, whether neglect is”excusable” is the conclusion one reaches after considering the pertinent factors, not an independent element with moral content. Pioneer thus indicates that a district court may find neglect “excusable” if it is caught quickly, hurts no one, and is a real mistake, rather than one feigned for some tactical reason — even if no decent lawyer would have made that error. There is no linguistic flaw in terming such errors “excusable,” meaning nothing more than “appropriate to excuse.”
Second, even if I agreed with the dissent that the defendants had to show “something” in satisfaction of Pioneer’s third prong, I would hold that there is “something” here. The dissent’s position is seemingly that, for neglect to be excusable, the reason for the error must be one that an appellate court views as understandable or sympathetic — a”good” reason in some respect. Such an assessment is necessarily subjective. The examples Judge Kozinski gives indicate that courts have recognized personal difficulties, client communication problems, and confusing rules as “good” reasons — as “something”— that weigh positively in the Pioneer balance, while viewing misreading clear rules as not a “good” reason — not “something.”
If this were an essential inquiry, I would hold that the district court did not abuse its discretion in holding that even the complete misfiring of a generally well-conceived calendaring system is “some*861thing” — as compared, for example, to letting court orders pile up on desks, with no effort to read them or calculate appeal deadlines (a not-so-hypothetical hypothetical, as we have had such cases). Here, the lawyer did within the appeal deadline period make an effort, although an exceedingly poor one, to ascertain the appeal deadline; he did not ignore the issue entirely.
The existence of some effort to meet appeal deadlines is not simply evidence of good faith. The good faith consideration goes to the absence of tactical or strategic motives, not to the degree of negligence. Here, as Judge Kozinski recognizes, given the lack of prejudice or delay and the absence of any evidence of ulterior motives, “defendants need not have offered a terribly good countervailing reason to make their neglect excusable.” Post at 861. In my view, a district court does not abuse its discretion by regarding the existence of a system designed to prevent the error from happening — even a system that is overly reliant on non-lawyers and that entirely misfired in this instance (probably as a result of over-reliance on non-lawyers) — as “something” weakly positive in the reason category.
I therefore join the opinion of the court in its entirety.