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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

ADVERTISEMENT