In a published decision, the Second Circuit recently upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of a Supplemental Security Income (SSI) claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. Alexander v. Saul, — F.4th —, 2021 WL 2832889 (2d Cir. July 8, 2021).
Ms. Alexander’s claim had already traveled through the courts once. She had re-applied for SSI following her release from prison and appeared pro se before an Administrative Law Judge (ALJ). Represented by counsel, she appealed to the Appeals Council and district court. The court remanded, citing Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984), because, inter alia, the ALJ had failed to obtain evidence from her prior favorable SSI claim. Her claim was again denied. She returned to district court, which affirmed the denial, despite the second ALJ’s failure to obtain the earlier records.
While her appeal was pending in district court, Ms. Alexander’s mother had died. She moved from her mother’s house but failed to notify her attorney of her new address. Despite his best efforts, her attorney was unable to reach her during the 60-day appeal period. Two days after the appeal deadline passed, Ms. Alexander contacted her attorney. On her behalf, he immediately noticed an appeal with the district court and moved for additional time to appeal under Federal Rule of Appellate Procedure 4(a)(5), which permits a district court to extend the time if the party shows excusable neglect or good cause. The attorney attributed the “lack of diligence” to Ms. Alexander’s “severe mental illness.”
The Court of Appeals held that the district court had reasonably applied the “excusable neglect” factors rather then the “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence. It rejected her argument that her mental illness was not under her control, citing among other factors her ability to successfully attend numerous counseling sessions and appointment, care for her mother, and complete much of the Social Security Administration’s administrative review process without the assistance of counsel as proof of her ability to manage her affairs and meet deadlines. The court did note, however, that it was not ruling out the possibility that a severely disabled SSI claimant could satisfy Rule 4(a)(5)’s excusable neglect standard by virtue of a disability.
The circuit court found the district court correctly applied the factors identified in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), for determining whether a litigant has established “excusable neglect” under Fed. R. App. P. 4(a)(5). Although several of the factors favored the plaintiff, including the brief length of the delay and lack of prejudice to the other side, the district court correctly placed the most emphasis on the third factor – the reason for the delay and whether it was within the reasonable control of the movant. According to the court, it was entirely within the plaintiff’s control to keep in contact with her attorney.
The Court of Appeals refused to consider equitable tolling, distinguishing cases such as Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), and Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991), in which the 60-day statute of limitations for appealing to district court was tolled. The court held that the time limit prescribed by Fed. R. App. P. 4(a)(5) was mandatory and jurisdictional, and thus inflexible, as opposed to a statute of limitations. The “sanctity” of final judicial decisions was of first importance in appellate practice, as opposed to a more “forgiving approach” to Section 405g deadlines.
The Second Circuit also rejected Ms. Alexander’s argument that the district court erred as a matter of equity since it had twice granted the Commissioner extensions to file his brief. Indeed, the first extension was requested three weeks after the brief was due and the only excuse offered was that the Commissioner’s counsel had miscalculated the due date. The court did note that Ms. Alexander’s counsel had consented to the extension. But the court also noted “it was remarkably uncharitable, to say the least, for the Commissioner’s counsel to oppose Alexander’s motion for an extension after twice seeking an extension herself.” The court
nonetheless held that the Commissioner’s extensions were not subject to “the rigorous requirements of Rule 4(a)(5).”
A cautionary tale to say the least, given the peripatetic nature of our clients. Check your tickle systems now to make sure you stay in touch with your clients early and often during the long delays in SSI appeals.