Deadline "Slipping Through the Cracks" Because of Overwork Does Not Justify Extension of Time to Appeal

The Seventh Circuit today provided a bit more clarity to the standards governing extensions of the time to file a notice of appeal after the expiration of the 30-day deadline. See Fed. R. App. P. 4(a)(5). Plaintiff’s counsel in Sherman v. Quinn missed the 30-day deadline by 3 days. He successfully asked the district court for more time within the subsequent 30-day period in which Rule 4 allows district courts to extend the appeal deadline. In support of the request, he told the district court that the deadline had “‘slipped through the cracks’ due to demands on his time from his ballot-qualified candidacy for Governor of Illinois in the November 2010 general election.” According the Court of Appeals, counsel further pleaded that “the demands of the run ‘completely overwhelmed my capacity to complete all tasks before me’” and he was “‘working without a legal assistant of any kind.’” The Seventh Circuit dismissed the appeal as untimely, ruling that the district court abused its discretion in granting the extension.

The Court explained that whether a request to extend the appeal deadline requires a showing of excusable neglect or only “good cause” no longer depends on whether the request is made before or after the initial 30-day deadline passes. The governing standard instead depends on whether the need for an extension is the fault of the movant, in which case the excusable-neglect standard applies, or results from circumstances beyond the movant’s control, in which case the good-cause standard applies. By way of example, the Court offered that “good cause” might justify an extension necessitated by the Postal Service’s failure to deliver a notice of appeal, but excusable neglect must be shown if, as here, the events requiring the extension were within the movant’s or his counsel’s control.

The Court concluded that blowing the deadline as a result of being too busy is alone insufficient to authorize the district court to extend the deadline. In so holding, the Court distinguished precedents that appeared to allow an extension under similar circumstances as involving some additional factor—error induced by the opposition or, in the case of a deadline missed by appointed counsel, an “overcommitment [that] was due to what can only be described as an excess of public service and altruism.” The Court ruled that counsel’s decision “to run for public office” was different because it might “be based on a variety of considerations, and altruism could be far down the list.”

Seemingly, if one cannot show excessive altruism as a cause for needing more time to appeal, one is best served by being able to blame others for that need.