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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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