ILNews

Court: Attorney mistake 'inexcusable neglect'

Jennifer Nelson
January 1, 2008
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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.
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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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