Second Circuit Holds That Plaintiff’s Mental Disability Was Not “Excusable Neglect” For Extension Under Fed. R. App. P 4(a)(5)

In Alexander v. Saul, No. 19-3370 (2d Cir. July 8, 2021), the Second Circuit affirms a district court decision holding that plaintiff’s post-traumatic stress disorder, bipolar disorder, and opioid use disorder was not “excusable neglect” to justify an extension of time to file a notice of appeal, in a case where plaintiff failed to keep her lawyer apprised of her current contact information.

Under Fed. R. App. P. 4(a)(5), a district court “may extend the time to file a notice of appeal if … th[e] party [seeking an extension] shows excusable neglect or good cause.” As the panel summarizes, “[t]he ‘good cause’ standard applies when the need for an extension arises from factors outside the control of the movant; the ‘excusable neglect’ standard applies when the need for an extension results from factors within the movant’s control.”

Plaintiff Alexander sought review of an adverse determination by an Administrative Law Judge on her application for Supplemental Security Income benefits. ‘[T]he district court affirmed the Commissioner’s benefits decision, holding that it was supported by substantial evidence.”

“While the district court’s decision was pending, Alexander’s mother died, and Alexander moved out of her mother’s house, where she had been living. Alexander failed to provide her counsel with her new address or a phone number at which she could be reached. When the district court’s decision was issued, Alexander’s counsel tried contacting Alexander but her phone number was disconnected. He tried calling several of Alexander’s relatives, but none of them were able to tell him where Alexander was living. He mailed a letter to Alexander’s last known address—her mother’s house—informing her of the district court’s decision and recommending that she pursue an appeal. The letter was returned as undeliverable by the Postal Service.”

On the sixth-second day after entry of judgment, two days after notice of appeal was due, Alexander called her attorney. “Alexander’s counsel informed her that the district court had denied her claim, and Alexander decided to pursue an untimely appeal.” Counsel moved under Fed. R. App. P. 4(a)(5) to extend the deadline. The motion argued that an extension was warranted because Alexander “did not receive actual notice of [the district court’s] Decision until today” and it attributed Alexander’s “lack of diligence” to “her severe mental illness.” The district court denied the extension.

The Second Circuit affirms. The panel quickly dispatches with “good cause.” Alexander argued that “good cause” was the correct standard because “her mental illness is not within her control.” But the panel holds that “Alexander’s failure to provide her attorney with updated contact information” was a condition that was at least partially under her control. Thus, the appropriate standard is “excusable neglect.”

For excusable neglect, under Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993), the court considers “[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.” The district court found [1], [2], and [4] in Alexander’s favor, and these factors were not contested on appeal.

Focusing on factor [3], the panel rejects Alexander’s explanation that she lacked “actual notice” of entry of the judgment and “that her delay was caused by her mental illness, which she argues is not within her control.” On the lack of notice, “[w]hile Alexander may not have received ‘actual notice’ of the district court’s decision until after the deadline to appeal had passed, it was Alexander’s own failure to provide her attorney with updated contact information that caused her to miss the deadline.”

Concerning Alexander’s mental disability, the panel leaves open “the possibility that a severely disabled SSI claimant could satisfy Rule 4(a)(5)’s excusable neglect standard by virtue of the claimant’s disability.” But on the facts of this case, Alexander had demonstrated her capacity to handle complex business.

“The record indicates that from 2009 to 2017, Alexander successfully attended hundreds of counseling sessions, examinations, doctor’s appointments, administrative hearings, and medical evaluations without apparent difficulty. She took care of her mother, including by transporting her to appointments, attended vocational training classes, volunteered at the Salvation Army, and babysat. She completed much of the Social Security Administration’s administrative review process without the assistance of counsel and timely prosecuted her case through multiple rounds of administrative and judicial review.”

“Moreover, Alexander has not described how her diagnosed mental illnesses frustrated her prosecution of this case. Two psychiatric evaluations of Alexander contained in the record concluded that Alexander suffers from post-traumatic stress disorder, bipolar disorder, and opioid use disorder, but Alexander does not explain how these conditions caused her failure to take a timely appeal of the district court’s decision.”

Thus while “sympathetic to Alexander’s case,” the panel holds that the district court was within its discretion to find against Alexander on “excusable neglect.”

The panel also rejects Alexander’s attempted analogy to 42 U.S.C. § 405(g), the limitations period for filing for review of a Social Security determination, which recognizes equitable tolling. It notes that while section 405(g) is akin to a limitations period, the time limit in Fed. R. Civ. P. 4(a) is mandatory and jurisdictional.

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