During the COVID-19 crisis, the Northern District of Illinois issued several general orders extending certain due dates for discovery, motions, and briefing. On April 22, 2020, the court issued its Third Amended General Order, which made clear that deadlines for filing notices of appeal in civil cases nonetheless remained in place. Importantly, in that same order, the district court “invited” parties to move under Federal Rule of Appellate Procedure 4(a)(5)(A) for an extension of time to file a late notice of appeal, if they needed one. The order stated that: “if a timely extension motion is filed, then the [District] Court deems that good cause exists for the extension given the public health emergency.” What does FRAP 4(a)(5)(A) provide and what are its limitations?
FRAP 4 addresses when notices of appeal in civil cases must be filed. It states that a notice of appeal must be filed in the district court within 30 days after the entry of the judgment or order appealed from. The rule also allows for a motion for an extension of time to file a notice of appeal. Such a motion must be filed in the district court. See FRAP 4(a)(5)(A).
FRAP 4(a)(5)(A) also states that a motion to extend must be filed within the 30 days following the entry of judgment or within 30 days after the expiration of the original 30 day period. No extension may exceed 30 days after the original 30-day period expired, or 14 days after the date the order granting the motion is allowed, whichever is “later.”
Under FRAP 4, motions to extend the time for filing notices of appeal must show good cause or excusable neglect as a basis for allowing the motion. What constitutes good cause or excusable neglect in order to obtain such an extension? We know from the Northern District’s Third Amended General Order that a public health emergency, such as COVID-19, can automatically constitute good cause for an extension. What are other bases for the extension? Coincidentally, on April 23, 2020, the day after the District Court’s Third General Order issued, the Seventh Circuit addressed this very question in Mayle v. State of Illinois, 956 F.3d 966 (7th Cir. 2020).
In Mayle, the appellee challenged the jurisdiction of the court of appeals, arguing that the district court abused its discretion in granting an extension under FRAP 4(a)(5)(A). The district court granted the extension because the plaintiff had “changed his address and his mail had been misrouted or not forwarded to the proper address,” and because the plaintiff was on a business trip the week leading up to the deadline, which had “delayed him from access to his legal filings.” The appellee argued that “mail trouble” or “a business trip” did not amount to excusable neglect under the rule.
The Seventh Circuit disagreed and found that the district court’s ruling allowing the motion to extend was not an abuse of discretion. In fact, the court of appeals found that the appellant had provided “two plausible bases for an extension in his motion,” and that the district court has considerable leeway in deciding whether those bases demonstrate “excusable neglect.” The court of appeals held:
Federal civil practice is full of deadlines and rules. They vary in how strictly they must be enforced. Deadlines are important, but if every missed deadline were fatal, federal courts would decide a lot fewer civil cases on their merits. In the human system of federal civil litigation, people make mistakes. Defendants miss deadlines to answer. Plaintiffs miss deadlines to serve process. Many parties miss deadlines for discovery responses or for filing briefs. And Rule 4(a)(5)(A) and 28 U.S.C. §2107(c) recognize that appellants sometimes miss the deadline for a notice of appeal.
Many deadline provisions, though not all, give judges discretion to overlook mistakes, particularly if they cause no significant harm. We should not apply close appellate scrutiny to such a routine and discretionary call as this one by a busy district judge. Nor should we lightly assume that the judge did not understand the familiar legal standard that applied – excusable neglect. Where there is an evident path from the record to the district court’s discretionary decision, it would be pointless to remand for a written explanation of the obvious. The district judge would not have abused his discretion if he had denied the extension, but he also did not abuse his discretion by granting it. Mayle’s notice of appeal was timely. We have jurisdiction over this appeal.
Mayle, 956 F.3d at 969.
The District Court’s General Order and the Mayle opinion address when such courts may find good cause or excusable neglect. When considering whether excusable neglect exists, the Seventh Circuit has also explained that the district court “should take into account such factors as the danger of prejudice [to the non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Whitfield v. Howard, 852 F.3d 656, 660-61 (7th Cir. 2017). The following is a sampling of other instances where good cause or excusable neglect were found or not found.
- Sherman v. Quinn, 668 F.3d 421 (7th Cir. 2012). Not excusable neglect when the attorney was running for governor and working without a legal secretary, allowing cases and deadlines to slip through his fingers.
- Jaburek v. Foxx, 813 F.3d 626, 630 (7th Cir. 2016). Good cause found when the litigant’s attorney had been diagnosed with gout when the appeal was due.
- MMG Fin. Corp. v. Midwest Amusements Park, LLC, 457 Fed. Appx. 586, 587 (7th Cir. 2012). Good cause not found for a delay in filing a notice of appeal resulting from the lawyer battling the flu, especially when the attorney was not ill during the entire 30-day period for filing the notice.
- Abuelyaman v. Ill. State Univ., 667 F.3d 800, 808 (7th Cir. 2011). Excusable neglect found when an attorney thought she had properly electronically filed the notice of appeal, and filed for an extension six days later after discovering she was wrong.
- Cooper v. IBM, Pers. Pension Plan, 163 Fed Appx 424 (7th Cir. 2016). Not excusable neglect when an attorney thought he had one month to file a notice of appeal, rather than 30 days, and he filed the notice a day late because the month had 31 days and he thought he was entitled to the extra day.
- Marquez v. Mineta 424 F.3d 539, 541 (7th Cir. 2005). Not excusable neglect for filing one day late because of miscalculation of time.
The bottom line is that there is a safety valve in the Federal Rules of Appellate Procedure for the timely filing of a notice of appeal, and its applicability often turns on whether the reason for the delay was in the party’s control. Unlike its counterpart in Illinois state courts, (Ill. S. Ct. R. 303(d)), the motion must be filed in the lower court and that court, rather than the reviewing court, is left to decide whether the grounds for extension are met. It is an important rule to remember.