The short answer is, you are probably out of luck. In the recent case of Alexander v. Saul, No. 19-2270-cv, the Second Circuit Court of Appeals considered the request of an SSI claimant for an extension of time in which to file an appeal. The claimant had been denied SSI by the Social Security Administration and her attorney filed an appeal in the United States District Court. While her appeal was pending, she moved out of her mother’s house and failed to provide her counsel with updated contact information. As a result, she did not receive notice of the district court’s decision denying her benefits claim until two days after the deadline to notice an appeal had passed. She had 60 days to file an appeal in the appellate court.
Alexander filed a motion with the district court under Federal Rule of 4 Appellate Procedure 4(a)(5) for leave to file an untimely appeal. The Commissioner opposed the motion. Under Federal Rule of Appellate Procedure 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.” The “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. The district court denied Alexander’s motion, holding that she established neither “good cause” nor “excusable neglect” for her failure to file a timely appeal.
Because Alexander’s failure to appeal in a timely fashion was at least partially due to her own inadvertence, “excusable neglect,” rather than “good cause,” was the appropriate standard for assessing her claim. To determine whether a litigant has established “excusable neglect” under Federal Rule of Appellate Procedure 4(a)(5), courts consider the four factors set forth by the Supreme Court in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). Those factors are: “[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.” Id. at 395. The most important factor is the reason for the delay.
The court was sympathetic to Alexander’s case, but nevertheless affirmed the district court which held that she failed to meet the standard of excusable neglect. The district court reasonably applied the Pioneer factors and held that because Alexander’s untimely appeal was caused by her failure to maintain contact with her attorney—a factor within her reasonable control—she failed to establish excusable neglect under the Pioneer test. While Alexander attributed her delay to her mental illness, which she argued was beyond her control, the record did not compel the conclusion that Alexander’s impairments, as opposed to her neglect, caused her failure timely to appeal.
The Second Circuit made a distinction between the deadline to file a social security appeal in the district court and a social security appeal in the appellate court. The court held that equitable tolling of the limitations period found in Section 405(g) [for an appeal to the district court] is not infrequently appropriate, as Congress intended to be unusually protective of claimants in this area. The court took the opposite approach with respect to the Rule 4(a) deadline [for the appellate court], noting that the time requirements for invoking appellate jurisdiction are strictly enforced.
THE BOTTOM LINE: If a claimant is VERY disabled, and is obviously not capable of managing his or her affairs, missing the appeal deadline for a federal appellate court might be seen as excusable neglect. But don’t count on it. It is essential that a claimant keep in contact with her attorney and keeps the attorney apprised of current contact information.
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