The Seventh Circuit and Appeal Extensions for Excusable Neglect

Federal Rule of Appellate Procedure 4(a)(5) permits district courts to extend the appeal deadline upon a showing of good cause or excusable neglect. The Seventh Circuit has held that this good-cause/excusable-neglect requirement is jurisdictional. That means the court of appeals must police the good-cause/excusable-neglect requirement on its own initiative, even if the parties do not dispute it. But the Seventh Circuit has also said that review of the district court’s good-cause/excusable-neglect requirement is deferential. So the court of appeals would not closely scrutinize the district court’s decision. Instead, the Seventh Circuit would ask only whether that decision was reasonable.

The combination of a jurisdictional rule and deferential review can be awkward. As much can be seen in yesterday’s decision in Nartley v. Franciscan Health Hospital. There, the Seventh Circuit avoided deciding whether an appellant had shown excusable neglect to warrant an extension of the appeal deadline. The court could do so because the appellant had made clear her intention to appeal before the original deadline expired. But the Seventh Circuit acknowledged that its caselaw in this area was “messy.” And it would eventually have to tackle “hard questions at the outer bounds of what constitutes good cause or excusable neglect.”

Extending the Appeal Deadline

Civil litigants normally have 30 days to file a notice of appeal. That time limit is jurisdictional. So courts cannot excuse a late appeal. And courts must raise timeliness issues on their own initiative, even if the parties all think that the appeal is timely.

The appeal deadline can, however, be extended. This happens most frequently with post-judgment motions. A timely post-judgment motion (such as a Federal Rule of Civil Procedure 59(e) motion for reconsideration or a Rule 60(b) motion for relief from the judgment) delays the start of the appeal clock. The time to appeal begins to run only after the district court decides the post-judgment motion.

District courts can also extend the appeal deadline under Federal Rule of Appellate Procedure 4(a)(5)(A). That rule requires that a would-be appellant (1) request an extension within 30 days of the end of the original appeal deadline and (2) show excusable neglect or good cause.

The Extension in Nartley

As in any case involving the timeliness of an appeal, the timeline of events is particularly important.

The plaintiff in Nartley sued the hospital that had treated the plaintiff’s mother before the mother died of a stroke. The plaintiff asserted several claims related to her mother’s care. But the district court dismissed them all for failure to state a claim. The plaintiff then filed a timely Rule 59(e) motion for reconsideration, which delayed the start of the time to appeal. The district court eventually denied that motion, and the plaintiff’s 30-day appeal window began to run.

Before that time had expired, the plaintiff filed a Rule 60(b) motion. Because this was a second post-judgment motion, it did not further delay the running of the appeal clock. And the plaintiff did not file a notice of appeal before the time to appeal expired.

She instead sought an extension of the appeal deadline under Rule 4(a)(5)(A). The plaintiff filed this motion within 30 days of the end of her initial appeal window. And the plaintiff explained “that she remained in the process of trying to retain new counsel and was unfamiliar with the rules setting the time to appeal.” The district court granted the extension out of “an abundance of caution.” The plaintiff then appealed on the last day of the extended appeal period.

The Seventh Circuit on Reviewing Excusable Neglect

The Seventh Circuit was not sure about the propriety of the extension. But it was also not sure about its law on reviewing extensions of the appeal deadline for excusable neglect.

The past few years have seen two kinds of decisions from the Seventh Circuit on reviewing the good-cause/excusable-neglect requirement. One kind focuses on the jurisdictional nature of that requirement. The Seventh Circuit held in Nestorovic v. Metropolitan Water Reclamation District that the excusable-neglect requirement was jurisdictional. So appellees cannot forfeit a challenge to whether the appellant has shown excusable neglect. And courts of appeals must raise the issue on their own. This jurisdictional treatment has led the Seventh Circuit to occasionally reverse excusable-neglect determinations and dismiss appeals as untimely. We saw an example of in last week’s Krivak v. Home Depot U.S.A., Inc., in which the Seventh Circuit saw no excusable neglect in the appellant’s erroneous belief that a second post-judgment motion further delayed the start of the appeal clock.

Other decisions focus on district courts’ discretion over good-cause/excusable-neglect determinations. In Mayle v. State of Illinois, the Seventh Circuit explained that review of excusable-neglect determinations is deferential. District courts have “considerable leeway in deciding whether [the grounds for extending the appeal deadline] demonstrated ‘excusable neglect.’” So appellate courts need not agree with a district court’s conclusion on this matter. The court of appeals need only see some “evident path from the record to the district court’s discretionary decision.” The court recently reiterated as much in April’s Perry v. Brown.

As the Seventh Circuit recognized in Nartley, its “case law in this area is messy.” But the court could be sure of two propositions:

First, district courts enjoy wide latitude in determining whether a litigant’s explanation for missing a deadline amounts to “good cause” or “excusable neglect.” Second, as a court of review, our role is not to micromanage district court exercises of discretion in this area.

The Seventh Circuit thus thought it likely that it would “see future appeals presenting hard questions at the outer bounds of what constitutes good cause or excusable neglect.”

Avoiding the Excusable-Neglect Issue

Fortunately for the Nartley panel, it could avoid answering any of those questions. Although the plaintiff in Nartley had not filed a formal notice of appeal within the non-extended appellate window, she had “signaled her ultimate wish to appeal multiple times” within that window. These signals included statements in court and the contents of her Rule 60(b) motion. “In these circumstances, and mindful of [the plaintiff]’s status as a pro se litigant, that was enough—her appeal was timely.”

The court also noted that it had jurisdiction to review the denial of the plaintiff’s Rule 60(b) motion. The plaintiff’s request for an extension came within 30 days of the district court’s denial of that motion. That extension request “amount[ed] to adequate notice” of the plaintiff’s intention to appeal the Rule 60(b) decision.

Nartley v. Franciscan Health Hospital, 2021 WL 2644282 (7th Cir. June 28, 2021), available at the Seventh Circuit and Westlaw.