ILNews

Court: Attorney mistake 'inexcusable neglect'

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The 7th Circuit Court of Appeals dismissed a woman's appeal following the denial of Social Security benefits because the woman's attorney failed to file the appeal in time under the Federal Rules of Civil Procedure.

In Janet L. McCarty v. Michael J. Astrue, Commissioner of Social Security, No. 07-2104, Janet McCarty's application for disability insurance benefits and Supplemental Security Income was denied by the Social Security Administration and an administrative law judge.

She appealed to the U.S. District Court in the Southern District of Indiana, Indianapolis Division, which issued its final order March 9, 2007, affirming the ALJ's decision. Sixty-three days later, McCarty's attorney, whose name does not appear in the Circuit Court's opinion, filed a notice of appeal, and later filed a motion requesting a three-day extension to file the notice of appeal and supportive memorandum.

The memorandum stated McCarty's attorney misunderstood a paragraph in the Administrative Policies and Procedures Manual for the Southern District of Indiana, Fed. R. Civ. P. 6(e). The U.S. District Court granted the extension to which Astrue filed a motion for reconsideration. The U.S. District Court denied the motion for reconsideration. McCarty filed this appeal arguing evidence fails to support the ALJ's conclusion that she didn't qualify for disability benefits.

The 7th Circuit Court of Appeals judges didn't even discuss the case in regards to whether the ALJ erred because McCarty's attorney failed to file a timely notice of appeal, which is a prerequisite to appellate review, wrote Judge William Bauer.

A notice of appeal must be filed within 60 days of the entry of a judgment or order being appealed as per Fed. R. App. P. 4(a)(1)(B). A District Court can extend the time if a party can show excusable neglect for the tardiness.

"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," the judge wrote.

The distinction between "entry of judgment" and "service of a notice" is unambiguous to any trained attorney. In addition the 7th Circuit has explicitly stated that rule only applies to documents "served" on opposing counsel, not to documents such as notices of appeals, Judge Bauer wrote.

McCarty's attorney is an experienced litigator of more than 30 years. This mistake amounts to inexcusable neglect, the judge wrote, so the U.S. District Court shouldn't have granted the extension of time to file a notice of appeal.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

ADVERTISEMENT