Monday, June 16, 2008
Ind. Decisions - Two today from the 7th Circuit
In McCarthy v. Astrue, Comm. of SS (SD Ind., Judge Young), a 7-page opinion, Judge Bauer writes:
McCarty filed a complaint in the United States District Court for the Southern District of Indiana, which issued a final order dated March 9, 2007, affirming the ALJ’s ruling, finding that there was substantial evidence in the record to support the ALJ’s findings. Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, McCarty had sixty days to file a notice of appeal.Note from ILB: Here is a link to 7th Circuit briefs in the above case.
Sixty-three days later, on May 11, 2007, McCarty filed a notice of appeal. On May 16, 2007, this Court asked McCarty to file a memorandum explaining why this case should not be dismissed for lack of jurisdiction and to explain the status of any motion for an extension filed with the district court.
On June 5, 2007, McCarty filed a motion with the district court requesting a three-day extension to file her notice of appeal and supportive memorandum (along with a suggested order). That memorandum explained that McCarty’s attorney misunderstood paragraph eleven of the Administrative Policies and Procedures Manual for the Southern District of Indiana, which addressed service of electronically filed documents, to mean that he had an additional three days to file a notice of appeal, as provided by Fed. R. Civ. P. 6(e). On June 8, 2007, the district court granted the extension by signing the suggested order submitted by McCarty.
On June 20, 2007, the Commissioner filed a Motion for Reconsideration and supporting memorandum with the district court. McCarty filed a memorandum in opposition to the Commissioner’s motion, and on August 10, 2007, the district court denied the motion for reconsideration. This appeal ensued. * * *
We begin (and end) with our appellate jurisdiction. A timely notice of appeal is a prerequisite to appellate review. * * *
We find that the district court abused its discretion in granting McCarty’s motion for an extension of time to file a notice of appeal. While the district court was correct in considering the prejudicial effect of the delay, it was incorrect in determining that the absence of any harm meant that the attorney’s mistake was excusable. This Court has repeatedly noted that there is unlikely ever to be harm in the Rule 4(a)(5) setting, because the neglectful appellant has a limited time period to request relief—in this case, sixty days—hence there will never be a terribly long delay. * * *
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. * * *
Like the attorney in Guy, McCarty’s attorney is an experienced federal litigator, having thirty-nine years of experience and having argued before this Court at least a dozen times. McCarty’s attorney’s interpretation that the Administrative Policies and Procedures Manual for the Southern District of Indiana would dictate filings in this Court is also implausible. * * * This mistake amounts to inexcusable neglect, and the district court abused its discretion in granting McCarty’s motion for an extension of time to file a notice of appeal. We find the notice of appeal to be untimely; therefore we lack jurisdiction over McCarty’s appeal.
We hasten to add that even if we had jurisdiction over McCarty’s appeal, the district court properly found that the ALJ’s decision was supported by substantial evidence. McCarty’s appeal is dismissed.
In Elder v. Astrue, Comm. of SS (ND Ind., Judge Sharp), a 15-page opinion, Judge Kanne writes:
Dianna Elder applied for Disability Insurance Benefits and Supplemental Security Income (SSI), claiming that her fibromyalgia rendered her disabled as that term is defined by the Social Security Act (“the Act”), 42 U.S.C. § 301 et seq. The administrative law judge (ALJ) denied Elder’s claims in November 2004. After the Social Security Appeals Council (“Appeals Council”) declined Elder’s request for review, the district court affirmed the ALJ’s decision. Elder now argues that the ALJ’s decision was wrong; in Elder’s view, the ALJ erroneously concluded that her descriptions of the severity her ailments were not credible, and improperly evaluated the medical opinions of two of her treating physicians. We affirm.
Posted by Marcia Oddi on June 16, 2008 02:05 PM
Posted to Ind. (7th Cir.) Decisions