Alexander v. Saul, Comm'r of Soc. SEC.

19-3370-cv
Alexander v. Saul, Comm’r of Soc. Sec.
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 19-3370-cv
MARION ALEXANDER,
Plaintiff-Appellant,
v.
ANDREW SAUL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
On Appeal from the United States District Court
for the Northern District of New York
ARGUED: JANUARY 12, 2021
DECIDED: JULY 8, 2021
Before: PARK and MENASHI, Circuit Judges. *
* Judge Robert A. Katzmann, originally a member of the panel, died on June
9, 2021. The two remaining members of the panel, who are in agreement,
have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United
States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
Plaintiff-Appellant Marion Alexander, an applicant for
Supplemental Security Income benefits, appeals from the judgment of
the U.S. District Court for the Northern District of New York (Stewart,
M.J.) denying her motion for an extension of time to file an appeal
pursuant to Federal Rule of Appellate Procedure 4(a)(5). Alexander
argues that because of her mental impairments, she established both
“good cause” and “excusable neglect” under Rule 4(a)(5) for her
failure to file a timely appeal and accordingly contends that the
district court abused its discretion in denying her motion for an
extension.
We conclude that “excusable neglect,” rather than “good
cause,” is the appropriate standard for evaluating Alexander’s claim
because her failure timely to appeal was at least in part due to her
own inadvertence. In evaluating claims of “excusable neglect” under
Rule 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): the risk of prejudice to the
non-movant; the length of the movant’s delay and its impact on the
proceedings; the reason for the delay, including whether it was within
the movant’s reasonable control; and whether the movant acted in
good faith. The district court applied these factors to Alexander’s
claim and concluded that she failed to demonstrate excusable neglect.
Because we discern no abuse of discretion in the district court’s
application of the Pioneer factors, we AFFIRM the judgment of the
district court.
2
MARK SCHNEIDER, Law Offices of Mark Schneider,
Plattsburgh, New York, for Plaintiff-Appellant.
DANIELLA M. CALENZO, Special Assistant U.S. Attorney
(Ellen E. Sovern, Regional Chief Counsel—Region II,
Office of the General Counsel, U.S. Social Security
Administration, on the brief), for Grant C. Jacquith, U.S.
Attorney, Northern District of New York, Syracuse, New
York, for Defendant-Appellee.
Katherine Burghardt Kramer, Middlebury, Vermont, for
Amicus Curiae National Alliance on Mental Illness of
Champlain Valley, in support of Plaintiff-Appellant.
Victoria M. Esposito, Albany, New York, for Amicus
Curiae Legal Aid Society of Northeastern New York, Inc., in
support of Plaintiff-Appellant.
MENASHI, Circuit Judge:
Plaintiff-Appellant Marion Alexander appeals from the district
court’s denial of her motion for an extension of time to file an appeal.
Alexander filed suit in federal court against the Commissioner of
Social Security under 42 U.S.C. § 405(g), seeking review of the
Commissioner’s denial of her claim for Supplemental Security
Income benefits under Title XVI of the Social Security Act, 42 U.S.C.
§ 1381 et seq. While the district court’s decision was pending,
Alexander 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.
Alexander filed a motion with the district court under Federal Rule of
3
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.
We review that decision for abuse of discretion and will reverse only
if we are left with “a definite and firm conviction that the court below
committed a clear error of judgment” in reaching its decision.
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 362 (2d Cir. 2003).
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,” is 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. Because
“[t]he requirement of filing a timely notice of appeal is ‘mandatory
4
and jurisdictional,’” Bowles v. Russell, 551 U.S. 205, 207 (2007), we have
“taken a hard line in applying the Pioneer test,” Midland Cogeneration
Venture Ltd. P’ship v. Enron Corp. (In re Enron Corp.), 419 F.3d 115, 122
(2d Cir. 2005) (internal quotation marks omitted), explaining that
“where the rule is entirely clear, we continue to expect that a party
claiming excusable neglect will, in the ordinary course, lose,” id. at
123.
While we are sympathetic to Alexander’s case, we cannot
conclude that the district court committed an abuse of discretion in
holding that Alexander failed to meet this demanding standard. 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 attributes her delay to her mental illness, which
she argues is beyond her control, the record does not compel the
conclusion that Alexander’s impairments as opposed to her neglect
caused her failure timely to appeal. We accordingly affirm the
judgment of the district court.
BACKGROUND
Plaintiff-Appellant Marion Alexander began receiving
Supplemental Security Income (“SSI”) benefits from the Social
Security Administration in 2005 but lost her benefits when she was
incarcerated for grand larceny in 2011. Upon her release from prison,
Alexander reapplied for SSI benefits, alleging disability due to
attention-deficit/hyperactivity disorder, post-traumatic stress
disorder, bipolar disorder, chronic hip and back pain, degenerative
disc disease, and hepatitis C. Her application was denied.
5
Proceeding pro se, Alexander requested and received a hearing
on her claim before an Administrative Law Judge (“ALJ”). The ALJ
applied the required five-step sequential evaluation process to
determine whether Alexander was “disabled” within the meaning of
the Social Security Act. See 20 C.F.R. § 416.920(a). Pursuant to that
process, the ALJ first determines whether the applicant is engaged in
“substantial gainful activity.” Id. § 416.920(a)(4)(i). If the applicant is
engaged in such activity, the applicant will not be found to be
disabled. Id. If the applicant is not engaged in “substantial gainful
activity,” the ALJ then determines whether the applicant has “a
severe medically determinable physical or mental impairment” or a
“combination of impairments” that has lasted or is expected to last for
a continuous period of at least twelve months. Id. § 416.920(a)(4)(ii);
see id. § 416.909. If the applicant does not suffer from any such
impairment or combination of impairments, the applicant will not be
found to be disabled. Id. § 416.920(a)(4)(ii). If the applicant does suffer
from such impairments, the ALJ then “consider[s] the medical
severity” of the applicant’s “impairment(s).” Id. § 416.920(a)(4)(iii).
If the applicant has an impairment or combination of
impairments persisting for at least twelve months “that meets or
equals one of [the] listings in appendix 1 to subpart P of part 404 of
this chapter,” the applicant will be found to be disabled. Id. If the
applicant’s impairments do not meet or equal a listing, the ALJ will
assess the applicant’s “residual functional capacity” (“RFC”) and the
applicant’s “past relevant work.” Id. § 416.920(a)(4)(iv). If the
applicant can perform past relevant work, the applicant will not be
found to be disabled. Id. If the applicant cannot perform past relevant
work, the ALJ will consider whether, in light of the applicant’s RFC,
age, education, and work experience, the applicant can “make an
6
adjustment to other work.” Id. § 416.920(a)(4)(v). If the applicant is not
able to make an adjustment to other work, the applicant will be found
to be disabled. Id.
Applying this process to Alexander, the ALJ found that
Alexander had not engaged in substantial gainful activity since
submitting her application for benefits and that she suffered from
significant impairments, including hepatitis C, bipolar disorder, post-
traumatic stress disorder, and opioid dependence. The ALJ further
found, however, that these impairments were not so severe as to meet
or medically equal any “listing.” Finding that Alexander had
sufficient RFC to perform unskilled, light work and that there were
jobs existing in significant numbers in the national economy that
Alexander could perform, the ALJ concluded that Alexander would
be able to make a successful adjustment to other work and concluded
that she was not disabled within the meaning of the Social Security
Act. The ALJ accordingly denied Alexander’s claim for SSI benefits.
Alexander retained counsel and filed an appeal with the Social
Security Appeals Council, which denied her request for review.
Alexander then filed a civil suit against the Commissioner of Social
Security in the U.S. District Court for the Northern District of New
York, seeking review of the Commissioner’s decision pursuant to 42
U.S.C. § 405(g). The district court held that the ALJ violated his duty
to develop the record in Alexander’s case by failing to include in the
record Alexander’s SSI file from the period before her benefits were
terminated. Noting that “‘the existence of a prior established
disability is highly relevant when the nature of that disability appears
to be the very same cause of the alleged disability then under
examination,’” the district court concluded that there were too many
7
“outstanding questions” about Alexander’s case to render a decision
on her benefits claim. R. 540 (quoting Mimms v. Heckler, 750 F.2d 180,
185 (2d Cir. 1984)) (alteration omitted). 1 The district court thought
those questions—whether Alexander had received benefits, why
those benefits had been terminated, and why Alexander’s prior file
was not included in the record—needed “further review and
explanation.” Id. at 541. The district court reversed the
Commissioner’s decision and remanded the case to the Social Security
Administration “for further development of the record.” Id.
On remand, the ALJ conducted two further hearings and
considered additional evidence regarding Alexander’s alleged
impairments. The ALJ again concluded that Alexander was not
disabled within the meaning of the Social Security Act. Although the
ALJ acknowledged his responsibility to complete the administrative
record and made efforts to locate Alexander’s previous SSI file, he
was unable to find it. The ALJ’s decision denying benefits became the
final decision of the Commissioner.
Alexander returned to the district court for review of the
Commissioner’s decision. In accordance with the briefing schedule
set by the district court, Alexander timely filed a motion for judgment
on the pleadings. The Commissioner’s cross-motion for judgment on
the pleadings was due on June 19, 2018. The Commissioner did not
file a motion by that date. On July 12, 2018—more than three weeks
after the Commissioner’s motion was due—the Commissioner filed a
1 “R.” indicates a citation to the administrative record before the district
court, which has been designated as the record on appeal. See Social
Security Administrative Record / Transcript, Alexander v. Saul, No. 8:17-CV-
01361 (N.D.N.Y. Dec. 15, 2017), ECF No. 9.
8
letter-motion seeking an extension of time from the district court for
“Good Cause.” Special App’x 12. Counsel for the Commissioner
explained that “the undersigned miscalculated the due date of her
response” and as a result “missed this deadline.” Id. The
Commissioner requested a thirty-day extension, to August 10, 2018,
to file the motion. Alexander’s counsel consented to the request,
which the district court granted.
On the day that the Commissioner’s motion was due, the
Commissioner filed a letter seeking another extension. Citing “the
undersigned’s heavy workload,” the Commissioner’s counsel stated
that “she was unable to finalize the brief in time” and requested a
fourteen-day extension, to August 24, 2018, to file the motion. Id. at
14. The district court granted the extension, and the Commissioner
filed the motion on August 24, 2018—more than two months after it
was originally due.
Approximately seven months after the motions were
submitted, the district court issued its decision.2 The district court
first analyzed Alexander’s argument that the ALJ was required to
presume that Alexander remained disabled following the termination
of her benefits in the absence of evidence that her disabling conditions
had improved. The district court concluded that the ALJ did not need
to make that presumption because Alexander was required to file—
and did file—a new application for SSI benefits upon her release from
prison that was subject to a de novo determination of benefits
eligibility. The district court next discussed its remand order and held
2 The decision was issued by a magistrate judge exercising the authority of
the district court pursuant to Federal Rule of Civil Procedure 73 and
28 U.S.C. § 636(c).
9
that the ALJ fulfilled his duty to develop the record notwithstanding
his failure to locate Alexander’s previous SSI file. Noting the ALJ’s
“sincere efforts” to locate the file as well as his prompting of
testimony from Alexander concerning her incarceration and
termination of benefits, the district court concluded that any gaps in
the record “would no longer prevent the Court from assessing the
other errors claimed by Plaintiff.” Special App’x 46-48. The district
court accordingly concluded that further remand was “not required”
to evaluate Alexander’s claim. Id. at 48.
Turning next to the merits, the district court affirmed the
Commissioner’s benefits decision, holding that it was supported by
substantial evidence. See 42 U.S.C. § 405(g); Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013) (explaining that under the “substantial
evidence” standard, the Commissioner’s decision “must be upheld”
if there is “such relevant evidence as a reasonable mind might accept
as adequate to support [the Commissioner’s] conclusion”). Rejecting
Alexander’s “invitation to reweigh the evidence which was before the
ALJ,” the district court held that the ALJ “properly considered the
evidence of record and provided analysis supporting his finding[]”
that Alexander “has the RFC to perform a modified range of unskilled
light work.” Special App’x 52-9. The district court also accepted the
ALJ’s finding that Alexander’s “statements concerning the intensity,
persistence and limiting effects of her symptoms were not entirely
consistent with the medical evidence and other evidence in the
record,” noting that the ALJ found “limited substantive support for
Plaintiff’s allegations of disabling symptomology” in light of
Alexander’s “generally benign examination results” and ability to
partake in “daily activities [that] were inconsistent with allegations of
disability.” Id. at 64-65. Finally, the district court held that the ALJ’s
10
determination that Alexander can perform work existing in
substantial numbers in the national economy was also supported by
substantial evidence. The district court therefore denied Alexander’s
motion for judgment on the pleadings and granted the
Commissioner’s.
While the district court’s decision was pending, Alexander’s
mother died, and Alexander moved out of her mother’s house, where
she had been living. Alexander failed to provide her counsel with her
new address or a phone number at which she could be reached. When
the district court’s decision was issued, Alexander’s counsel tried
contacting Alexander but her phone number was disconnected. He
tried calling several of Alexander’s relatives, but none of them were
able to tell him where Alexander was living. He mailed a letter to
Alexander’s last known address—her mother’s house—informing her
of the district court’s decision and recommending that she pursue an
appeal. The letter was returned as undeliverable by the Postal Service.
The district court’s judgment was entered on March 28, 2019.
Because Alexander’s suit was against the Commissioner of Social
Security, “a United States officer or employee sued in an official
capacity,” Alexander had sixty days, rather than the customary thirty,
to appeal from the district court’s judgment. Fed. R. App. P.
4(a)(1)(B)(iii). On May 29, 2019, two days after the deadline had
passed, Alexander called her attorney to inquire into the status of her
case. Alexander’s counsel informed her that the district court had
denied her claim, and Alexander decided to pursue an untimely
appeal. Her counsel promptly noticed an appeal to this court and filed
an ex parte letter-motion with the district court moving for additional
time to appeal from the district court’s decision under Federal Rule of
11
Appellate Procedure 4(a)(5), which permits a district court to “extend
the time to file a notice of appeal if … th[e] party [seeking an
extension] shows excusable neglect or good cause.” The motion
argued that an extension was warranted because Alexander “did not
receive actual notice of [the district court’s] Decision until today” and
attributed Alexander’s “lack of diligence” to “her severe mental
illness.” Special App’x 16. Alexander’s counsel subsequently
submitted a letter-brief in further support of his position. The
Commissioner filed a brief opposing the motion.
The district court (Stewart, M.J.) denied Alexander’s motion. In
reaching its decision, the district court applied the factors identified
by the Supreme Court in Pioneer Investment Services Company v.
Brunswick Associates Limited Partnership, 507 U.S. 380 (1993), for
determining whether a litigant has established “excusable neglect”
under Federal Rule of Appellate Procedure 4(a)(5). 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. While noting that the first, second, and fourth Pioneer factors
favored Alexander, the district court placed the greatest emphasis on
the third factor—“the reason for the delay, including whether it was
within the reasonable control of the movant.” Id. Finding that “it was
entirely within Plaintiff’s control to keep her attorney up to date on
how to contact her” and that “[i]f she had done so, counsel
presumably would have been able to communicate with her and
timely file an appeal,” the district court concluded that Alexander’s
failure to maintain contact with her attorney was “no basis for finding
good cause or excusable neglect.” Special App’x 9-10.
12
The district court rejected the suggestion that Alexander’s lack
of diligence could be attributed to her mental illness, finding that
explanation “entirely conclusory … [and] insufficient to establish
either good cause or excusable neglect.” Id. at 10. The district court
denied Alexander’s motion for an extension of time to appeal from its
judgment. This appeal followed.
DISCUSSION
We review a district court’s refusal to grant an extension of time
to file a notice of appeal under Federal Rule of Appellate Procedure
4(a)(5) for abuse of discretion. Goode v. Winkler, 252 F.3d 242, 245 (2d
Cir. 2001). “Such an order ‘cannot be set aside by a reviewing court
unless it has a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion that it reached
upon a weighing of the relevant factors.’” Silivanch, 333 F.3d at 362.
I
Federal Rule of Appellate Procedure 4(a)(5) provides that a
district court “may extend the time to file a notice of appeal” if the
party seeking an extension “shows excusable neglect or good cause.”
“The good cause and excusable neglect standards have ‘different
domains’” and are “not interchangeable.” Fed. R. App. P. 4(a)(5)
Advisory Committee’s Notes to 2002 Amendments (quoting Lorenzen
v. Emps. Ret. Plan, 896 F.2d 228, 232 (7th Cir. 1990)). “The excusable
neglect standard applies in situations in which there is fault; in such
situations, the need for an extension is usually occasioned by
something within the control of the movant.” Id. The “good cause”
standard, in contrast, “applies in situations in which there is no fault—
excusable or otherwise,” such as when “the Postal Service fails to
deliver a notice to appeal.” Id. (emphasis added). In no-fault
13
circumstances, “good cause” is the appropriate standard because “[i]t
may be unfair to make … a movant prove that its ‘neglect’ was
excusable, given that the movant may not have been neglectful at all.”
Id. To establish good cause, the movant must therefore show that “the
need for an extension is … occasioned by something that is not within
the control of the movant.” Id.Because the “good cause” standard applies only “in situations
in which there is no fault,” id., it “requires a greater showing than
‘excusable neglect,’” Broitman v. Kirkland (In re Kirkland), 86 F.3d 172,
175 (10th Cir. 1996). As the Supreme Court explained in Pioneer, “[t]he
ordinary meaning of ‘neglect’ … encompasses … omissions caused
by carelessness.” 507 U.S. at 388. “The plain meaning of the phrase
‘good cause,’” however, “has no such connotation.” Kirkland, 86 F.3d
at 175. Courts have accordingly declined to apply the “good cause”
standard in cases in which the movant’s failure to prosecute a timely
appeal was at least partially attributable to the movant’s own
inadvertence. 3
3 See, e.g., United States v. Darling, 706 F. App’x 34, 35 (2d Cir. 2017)
(“Because Darling’s failure to file his notice of appeal was not due to
circumstances beyond his control, we conclude that the ‘good cause’
standard does not apply.”); Kanoff v. Better Life Renting Corp., 350 F. App’x
655, 657 n.1 (3rd Cir. 2009) (“[T]he ‘good cause’ prong is reserved for events
over which the filing party has no control.”); Gibbons v. United States, 317
F.3d 852, 853-54 & n.3 (8th Cir. 2003) (finding “no allegations in this case
that would support a good cause finding” where the attorney’s failure to
meet the deadline was due in part to illness and in part to inadvertence);
Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 630 (1st Cir. 2000) (“An illustrative
case [of good cause] is … a case in which the putative appellant’s tardiness
in filing a notice of appeal result[s] entirely from external causes.”); Jin v.
Metro. Life Ins. Co., No. 95-CV-4427, 2003 WL 21436211, at *2 (S.D.N.Y. June
20, 2003) (concluding that “the governing standard is ‘excusable neglect’
14
Alexander argues that a finding of “good cause” would be
appropriate in this case because “her mental illness is not within her
control.” Reply Br. 1. While it may be true that Alexander has no
control over her mental condition, “good cause” is not the
appropriate standard by which to judge her claims because her failure
to meet the appeal deadline did not arise from a “situation[] in which
there [was] no fault” or in which she was “not … neglectful at all.” Fed.
R. App. P. 4(a)(5) Advisory Committee’s Note to 2002 Amendments
(emphasis added). Alexander’s failure to provide her attorney with
updated contact information is not comparable to the Postal Service
failing to deliver a notice of appeal or other “circumstances beyond
[her] control.” United States v. Darling, 706 F. App’x 34, 35 (2d Cir.
2017). Because Alexander’s failure to file a timely appeal was at least
partly due to her own “inadvertence, mistake, or carelessness,”
LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (quoting
Pioneer, 507 U.S. at 388), excusable neglect, rather than good cause, is
the appropriate standard for evaluating her claims.
II
“The burden of proving excusable neglect lies with the late-
claimant.” In re Enron Corp., 419 F.3d at 121. In deciding whether a
movant has carried this burden, courts consider the four factors set
forth by the Supreme Court in Pioneer: “[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
rather than ‘good cause’” where the failure to meet the deadline was
attributable to the client’s loss of contact with her attorney), aff’d, 88
F. App’x 456 (2d Cir. 2004).
15
[4] whether the movant acted in good faith.” 507 U.S. at 395. Because
“the requirement of filing a timely notice of appeal is ‘mandatory and
jurisdictional,’” Bowles, 551 U.S. at 207, we have “‘taken a hard line’
in applying the Pioneer test” for excusable neglect, explaining that
“where the rule is entirely clear, we continue to expect that a party
claiming excusable neglect will, in the ordinary course, lose,” In re
Enron Corp., 419 F.3d at 122-23; see also Pioneer, 507 U.S. at 392(“[I]gnorance of the rules, or mistakes construing the rules do not
usually constitute ‘excusable’ neglect.”).
Here, Alexander did not comply with the “entirely clear” rule
that she was required to notice her appeal within sixty days of the
district court’s entry of judgment. In re Enron Corp., 419 F.3d at 123;
see Fed. R. App. P. 4(a)(1)(B)(iii).4 We would therefore expect, “in the
ordinary course,” that Alexander would not prevail on her motion for
an extension. In re Enron Corp., 419 F.3d at 123. The district court
reasonably applied the Pioneer factors, holding that because the
reason for Alexander’s delay was her failure to maintain contact with
counsel—a factor within her reasonable control—she failed to
4 Time limits contained in the Federal Rules of Civil Procedure and the
Federal Rules of Appellate Procedure are ordinarily not jurisdictional
because “[o]nly Congress may determine a lower federal court’s subject-
matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443, 452 (2004); see also Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978) (“[I]t is axiomatic that
the Federal Rules of Civil Procedure do not create or withdraw federal
jurisdiction.”). Accordingly, “where … the relevant time prescription is
absent from the U.S. Code … the time prescription is not jurisdictional.”
Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017). The sixty-
day deadline to appeal from a judgment against “a United States officer or
employee sued in an official capacity,” Fed. R. App. P. 4(a)(1)(B)(iii), is
codified at 28 U.S.C. § 2107(b)(3). Thus, the deadline at issue in this case is
jurisdictional. See Bowles, 551 U.S. at 213.
16
establish excusable neglect. While Alexander argues that her delay
was caused by her mental illness, which she argues is not within her
control, the record does not compel that conclusion. We therefore
discern no abuse of discretion in the district court’s decision to deny
Alexander’s motion for an extension of time to file an appeal.
A
In applying the Pioneer factors to Alexander’s motion, the
district court found that the first, second, and fourth factors all
favored granting Alexander’s motion for an extension. We agree: the
Commissioner did not suffer meaningful prejudice from Alexander’s
delay, the length of her delay was short, and nothing in the record
indicates that Alexander acted in bad faith. See Pioneer, 507 U.S. at 395.
As is often the case, these factors favored granting Alexander’s
motion. See Silivanch, 333 F.3d at 366 (“In the typical case, the first two
Pioneer factors will favor the moving party … [a]nd rarely in the
decided cases is the absence of good faith at issue.”).
The district court nevertheless held that Alexander failed to
establish excusable neglect based on its analysis of the third factor:
“the reason for the delay, including whether it was within the
reasonable control of the movant.” Pioneer, 507 U.S. at 395. Affording
dispositive weight to that factor accords with our precedents, which
have described the reason for the delay as the most important Pioneer
factor. See Dixon v. New York, 737 F. App’x 46, 48 (2d Cir. 2018);
Shumsker v. Citigroup Glob. Mkts. Inc., 569 F. App’x 16, 18 (2d Cir.
2014); In re Enron Corp., 419 F.3d at 123; Williams v. KFC Nat’l Mgmt.
Co., 391 F.3d 411, 418 (2d Cir. 2004). Indeed, “we … have focused on
… ‘the reason for the delay, including whether it was within the
reasonable control of the movant’” despite “the existence of the four-
17
factor test in which three of the factors usually weigh in favor of the
party seeking the extension.” Silivanch, 333 F.3d at 366. Several of our
sister circuits follow the same approach.5
Alexander’s counsel proffered two explanations for her delay.
First, he stated that Alexander “did not receive actual notice of [the
district court’s] Decision” until two days after the appeal deadline
had passed because “[s]he moved out of her mother’s house last year
… [and] failed to give me her new address and phone number.”
Special App’x 16. Second, he “attribute[d] [Alexander’s] lack of
diligence to her severe mental illness.” Id.The district court did not abuse its discretion in holding that
these explanations did not establish excusable neglect. “We identify
nothing in the purposes or history of Rule 4(a) to suggest that a
neglectful litigant should be able to sidestep the rigorous
requirements of Rule 4(a)(5) … simply because [her] neglect led also
to the failure to receive notice of the judgment.” Commc’ns Network
5 See United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (describing the
reason for the delay as the “foremost Pioneer consideration”); United States
v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004) (“[F]ault in the delay remains
a very important factor—perhaps the most important single factor—in
determining whether neglect was excusable.”); Graphic Commc’ns Int’l
Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir.
2001) (“[T]he four Pioneer factors do not carry equal weight; the excuse
given for the late filing must have the greatest import. … [T]he reason-for-
delay factor will always be critical to the inquiry.”); Lowry v. McDonnell
Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000) (“[A]t the end of the day, the
focus must be upon the nature of the neglect.”); Thompson v. E.I. DuPont de
Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996) (“The most important of
the factors identified in Pioneer for determining whether ‘neglect’ is
‘excusable’ is the reason for the failure to file the notice of appeal.”).
18
Int’l, Ltd. v. MCI WorldCom Commc’ns, Inc. (In re WorldCom, Inc.), 708
F.3d 327, 338 (2d Cir. 2013). While Alexander may not have received
“actual notice” of the district court’s decision until after the deadline
to appeal had passed, it was Alexander’s own failure to provide her
attorney with updated contact information that caused her to miss the
deadline. 6 Such a failure, even when inadvertent, “does not
constitute ‘excusable neglect’ as defined by Pioneer and subsequent
cases.” FedEx TechConnect, Inc. v. OTI, Inc., No. 12-CV-1674, 2013 WL
5405699, at *4 (S.D.N.Y. Sept. 23, 2013); see also Asbestos Pers. Injury
Plaintiffs v. Travelers Indemn. Co. (In re Johns-Manville Corp.), 476 F.3d
118, 124 (2d Cir. 2007) (“[A]bsent extraordinary circumstances …
inadvertence is not excusable neglect.”). Our court and the district
courts in our circuit have rejected claims of excusable neglect from
litigants who missed deadlines because they failed to keep their
6 Alexander’s counsel contends that because Alexander’s motion for an
extension stated that she “had to move after her mother died, … had no
forwarding address, and … had no phone number,” the motion should
have “raise[d] the inference that she was … homeless and ‘couch surfing’
during this period” and that “[u]nder the circumstances, the [district] court
had an obligation to further inquire and have a hearing if it needed more
evidence regarding Ms. Alexander’s reason for missing the deadline.”
Appellant’s Br. 36 n.30. We disagree. The motion stated that Alexander
“failed to give me her new address and phone number” and that Alexander
“should have communicated her new address and phone number to me.”
Special App’x 16. The motion therefore did not raise the inference that
Alexander was homeless because it implied that Alexander had a “new
address and phone number.” Id. More fundamentally, it was counsel’s job
to explain to the district court’s satisfaction why Alexander merited an
extension from the appeal deadline. It was not incumbent upon the district
court sua sponte to order an evidentiary hearing based on inferences it
purportedly should have drawn from Alexander’s motion.
19
counsel, the court, or other parties apprised of their contact
information.7
The district court also did not abuse its discretion in concluding
that Alexander failed to demonstrate excusable neglect based on her
allegations of “severe mental illness.” Special App’x 16. We do not
rule out the possibility that a severely disabled SSI claimant could
satisfy Rule 4(a)(5)’s excusable neglect standard by virtue of the
claimant’s disability. But the record does not compel the conclusion
that Alexander’s disabilities are so debilitating as to excuse her failure
to prosecute a timely appeal.
7 See, e.g., Pollard v. Does, 452 F. App’x 38, 40 (2d Cir. 2011) (declining to find
excusable neglect for a pro se plaintiff who “failed to comply with the court’s
… order to maintain a current address with the pro se office”); Bergamo v.
CFTC, 192 F.3d 78, 80 (2d Cir. 1999) (holding that the excusable neglect
standard was not satisfied where the plaintiff “claim[ed] that he did not
receive [notice of the court’s order] because, due to a … bank foreclosure on
his property, he was no longer living at the address of record”); Maduakolam
v. Colum. Univ., 866 F.2d 53, 56 (2d Cir. 1989) (rejecting a claim of excusable
neglect where the plaintiff failed to “leav[e] a forwarding address or
otherwise stay[] in contact with his counsel to assure that he received and
responded to the court-ordered discovery schedule”); Young v. Dep’t of
Corr., No. 2:16-CV-143, 2017 WL 4286305, at *2 (D. Vt. Aug. 23, 2017)
(“[C]ourts have generally held that a plaintiff’s … fail[ure] to notify the
court of an address change … does not amount to excusable neglect.”)
(citing cases), report and recommendation adopted by No. 2:16-CV-143, 2017
WL 4286240 (D. Vt. Sept. 26, 2017); Am. Arbitration Ass’n, Inc. v. Defonseca,
No. 93-CV-2424, 1997 WL 102495, at *2 (S.D.N.Y. Mar. 6, 1997) (concluding
that the defendants had not shown excusable neglect where they “failed to
inform the plaintiff or the Court of their new address despite the fact that
they were expecting a decision on their motion to dismiss”); Halpert v.
Interstate Comput. Serv., Inc. (In re World Wide Gifts, Inc.), 10 B.R. 761, 764
(Bankr. S.D.N.Y. 1981) (declining to find excusable neglect where the
defendant “by his own inadvertence failed to timely contact counsel”).
20
The record indicates that from 2009 to 2017, Alexander
successfully attended hundreds of counseling sessions, examinations,
doctor’s appointments, administrative hearings, and medical
evaluations without apparent difficulty. She took care of her mother,
including by transporting her to appointments, attended vocational
training classes, volunteered at the Salvation Army, and babysat. She
completed much of the Social Security Administration’s
administrative review process without the assistance of counsel and
timely prosecuted her case through multiple rounds of administrative
and judicial review. Prior to and throughout these proceedings,
Alexander has demonstrated that she is capable of managing her own
affairs and meeting deadlines. This history suggests that Alexander’s
disabilities did not prevent her from pursuing this litigation in a
timely fashion. Cf. Whitman v. SSA, No. 3:01-CV-1569, 2007 WL
781370, at *2 (D. Conn. Mar. 8, 2007) (rejecting a claim of excusable
neglect where the plaintiff “actively litigated her case before this court
during the period that she now claims she was ‘too ill’”).
Moreover, Alexander has not described how her diagnosed
mental illnesses frustrated her prosecution of this case. Two
psychiatric evaluations of Alexander contained in the record
concluded that Alexander suffers from post-traumatic stress disorder,
bipolar disorder, and opioid use disorder, but Alexander does not
explain how these conditions caused her failure to take a timely
appeal of the district court’s decision. Nor is any such explanation
obvious given Alexander’s prior diligence in prosecuting her case and
the conclusions of both evaluations that Alexander’s attention,
concentration, and memory are only “mildly impaired” and that she
exhibits “fair” insight and judgment. R. 255-56, 909-10. Indeed,
Alexander’s disabilities were apparently not so debilitating as to
21
prevent her from contacting her attorney of her own volition to
inquire into the status of her case; had she exercised slightly more
diligence in doing so, she would not have missed the deadline to
appeal.
The district court thus had sufficient grounds for finding that
Alexander’s delay was occasioned by her neglect of her case rather
than her disabilities. And because the district court had grounds for
finding that the “reason for [Alexander’s] delay” was “within the
reasonable control of the movant,” Pioneer, 507 U.S. at 395, the district
court’s conclusion that Alexander failed to meet the “rigorous
requirements of Rule 4(a)(5),” In re Enron, 708 F.3d at 338, was not an
abuse of discretion. While we are sympathetic to Alexander’s case, we
do not have “a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion that it reached
upon a weighing of the relevant factors.” Silivanch, 333 F.3d at 362.
B
We are not persuaded by Alexander’s arguments to the
contrary. Alexander argues that because the Supreme Court held in
Bowen v. City of New York, 476 U.S. 467 (1986), that the sixty-day
deadline for a Social Security benefits claimant to seek judicial review
of the Commissioner’s decision under 42 U.S.C. § 405(g) is subject to
equitable tolling, the same rule should apply to the deadline to appeal
from the district court’s decision under Federal Rule of Appellate
Procedure 4(a). But the excusable neglect inquiry is already “at
bottom an equitable one,” Pioneer, 507 U.S. at 395, and “the equities
will rarely if ever favor a party who,” like Alexander, “fail[ed] to
follow the clear dictates of a court rule,” Silivanch, 333 F.3d at 366; see
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“[T]he
22
principles of equitable tolling … do not extend to … a garden variety
claim of excusable neglect.”). Thus, the principles of equitable
tolling—even if applied to Alexander’s case—would not require a
different conclusion from that reached by the district court.
Alexander next points to a line of cases following our decision
in Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991), in which we held
that “equitable tolling of the 60-day statute of limitations of Section
405(g) may be warranted in cases where an SSI disability claimant
fails to seek judicial review in a timely manner because of mental
impairment.” Id. at 759. We went on to hold that “[w]here a claimant
avers incapacity due to mental impairment during the 60-day period,
the district court should permit the claimant to present evidence in
support of this claim” and “determine whether, considering all of the
circumstances of the case, equitable tolling is warranted.” Id. at 759.
Alexander argues that Canales and its progeny warrant reversal
because Alexander attributed her failure to meet the appeal deadline
to her “severe mental illness” and the district court “erred in not
considering and weighing the effect of Ms. Alexander’s profound
mental illness in determining that she did not have excusable neglect
for filing her Motion for an Extension of Time (and Notice of Appeal)
two days late.” Appellant’s Br. 32-34.
But unlike the claimant in Canales, who “aver[red] that mental
impairment prevented her from comprehending her right to judicial
review,” 936 F.2d at 759, Alexander understood her right to judicial
review and received judicial review of her claim. An evidentiary
hearing of the kind ordered in Canales would be unlikely to uncover
23
information that the district court could not have considered when it
ruled on Alexander’s motion for an extension.8
Bowen and Canales also differ from this case for a more
fundamental reason: “the time limit prescribed by Fed. R. App. P. 4(a)
is ‘mandatory and jurisdictional,’” Siemon v. Emigrant Savs. Bank (In re
Siemon), 421 F.3d 167, 169 (2d Cir. 2005), while “the 60-day
requirement [to file a civil action under Section 405(g)] is not
jurisdictional, but rather constitutes a period of limitations,” Bowen,
476 U.S. at 478. That distinction makes a difference. “Much more than
legal niceties are at stake here” because “[w]ithout jurisdiction the
court cannot proceed at all in any cause.” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94, 101 (1999); see id. at 94-95 (“The
requirement that jurisdiction be established as a threshold matter …
is ‘inflexible and without exception.’”); id. at 101-02 (“For a court to
pronounce upon the meaning or constitutionality of a state or federal
law when it has no jurisdiction to do so is, by very definition, for a
court to act ultra vires.”).
Thus, while we have said that “equitable tolling of the
limitations period found in Section 405(g) is not infrequently
appropriate, as Congress intended to be ‘unusually protective’ of
claimants in this area,” Canales, 936 F.2d at 758 (alteration omitted),
we have taken the opposite approach with respect to the Rule 4(a)
deadline, noting that the “time requirements for invoking appellate
jurisdiction are strictly enforced,” Mei Xing Yu v. Hasaki Rest., Inc., 874
F.3d 94, 96 (2d Cir. 2017). Because Rule 4(a) imposes a jurisdictional
8 Notably, Alexander does not allege that her mental condition changed in
the period following the submission of her motion for a judgment on the
pleadings.
24
bar to the exercise of the judicial power, we have recognized that
“[t]he power of the federal courts to extend the time limits on the
invocation of appellate jurisdiction is severely circumscribed.” Goode,
252 F.3d at 245. We decline to extend the approach taken in Bowen and
Canales—which involved a non-jurisdictional period of limitations in
a statute that is “‘unusually protective’ of claimants,” Bowen, 476 U.S.
at 480—to this case, which concerns a jurisdictional limitation that
applies across-the-board to all litigants.
The appeal deadline also differs significantly from the sixty-
day limitations period contained in Section 405(g) because it
implicates the finality of judgments. The relief Alexander seeks here
would open a district court’s final judgment to review after the
deadline to appeal from that judgment has passed. Such relief is
rarely granted because “to interfere with the finality of a judgment
would mean that … a prevailing litigant would be deprived of any
certainty that its judgment was no longer subject to appeal,” which
would “subvert the ‘certainty and stability [that] have … been
considered of first importance in the appellate practice of federal
courts.’” Mendes Junior Int’l Co. v. Banco de Brasil, S.A., 215 F.3d 306,
314 (2d Cir. 2000) (quoting Hill v. Hawes, 320 U.S. 520, 524 (1944)
(Stone, C.J., dissenting)). While a forgiving approach to the Section
405(g) deadline may be appropriate, “an appreciation for ‘the sanctity
of final judgments in our federal judicial system’ and the public policy
‘dictating there be an end of litigation; that those who have contested
an issue shall be bound by the results of the contest, and that matters
once tried shall be considered forever settled as between the parties”
supports our decision to “take[] a ‘hard line’ when determining
whether neglect is excusable under Rule 4(a)(5).” In re WorldCom, 708
F.3d at 337-38 (internal quotation marks omitted).
25
Finally, Alexander argues that the district court erred “as a
matter of equity because it twice granted the Commissioner an
extension to file his brief … without any showing of excusable
neglect.” Appellant’s Br. 36. As recounted above, the Commissioner
twice moved the district court for extensions of the deadline for filing
the Commissioner’s cross-motion for judgment on the pleadings. The
first extension was requested more than three weeks after the motion
was due. The only excuse offered for the failure to meet the deadline
was that the Commissioner’s counsel had “miscalculated the due date
of her response” and therefore “missed this deadline.” Special App’x
12. Alexander’s counsel consented to the Commissioner’s request for
an extension, which the district court granted without providing any
analysis. The Commissioner then asked for a second extension on the
new date that its motion was due. The Commissioner’s counsel
explained that a further extension was needed because “she was
unable to finalize her brief in time” due to her “heavy workload.” Id.
at 14. The district court again granted the request without providing
any explanation for its decision.
These excuses would not constitute “excusable neglect” under
Federal Rule of Appellate Procedure 4(a)(5). See In re Enron Corp., 419
F.3d at 126 (“[I]nadverence, ignorance of the rules, or mistakes
construing the rules do not usually constitute ‘excusable’ neglect.
Similarly, preoccupation or an excessive work load does not typically
render a mistake excusable.”) (citing Pioneer, 507 U.S. at 392, 398). Nor
would such excuses constitute “good cause” under Rule 4(a)(5)
because the Commissioner’s failure to meet the deadlines was not
“occasioned by something that [was] not within the control of the
movant.” Fed. R. App. P. 4(a)(5) Advisory Committee’s Notes to 2002
Amendments. And it was remarkably uncharitable, to say the least,
26
for the Commissioner’s counsel to oppose Alexander’s motion for an
extension after twice seeking an extension herself.
None of that, however, makes the district court’s denial of
Alexander’s motion an abuse of discretion. The Commissioner’s
motions for an extension of time before the district court were not
subject to “the rigorous requirements of Rule 4(a)(5).” In re WorldCom,
708 F.3d at 338. Rather, those motions were governed by Federal Rule
of Civil Procedure 6(b)(1), which applies when a litigant fails to
comply with a court-imposed deadline. Admittedly, Federal Rule of
Civil Procedure 6(b)(1) uses similar language to Federal Rule of
Appellate Procedure 4(a)(5), requiring a finding of “good cause”
when a litigant seeks an extension before a deadline has passed and a
finding of both “good cause” and “excusable neglect” when a litigant
seeks an extension after a deadline has passed. See Fed. R. Civ. P.
6(b)(1)(A)-(B). Yet the standard for evaluating claims under Federal
Rule of Civil Procedure 6(b)(1) differs markedly from those for
Federal Rule of Appellate Procedure 4(a)(5).
Unlike Federal Rule of Appellate Procedure 4(a)(5), “Federal
Rule of Civil Procedure ‘6(b)(1) gives the [district] court wide discretion
to grant a request for additional time.’” Ramashwar v. City of New York,
231 F. App’x 26, 27-28 (2d Cir. 2007) (emphasis added). Accordingly,
“an application for extension of time under Rule 6(b)(1)(A) normally
will be granted in the absence of bad faith on the part of the party
seeking relief or prejudice to the adverse party.” 4B Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1165 (4th
ed. 2021 update); see also Staggers v. Otto Gerdau Co., 359 F.2d 292, 296
(2d Cir. 1966) (noting that when Federal Rule of Civil Procedure 6(b)
was amended to provide district courts with greater “flexibility,” it
27
was “assumed that discretionary extensions would be liberally
granted”). We have accordingly said that “mere inadvertence,
without more, can in some circumstances be enough to constitute
‘excusable neglect’ justifying relief under Rule 6(b)(1)(B),” Petaway v.
Osden, 827 F. App’x 150, 152 (2d Cir. 2020) (citing Raymond v. IBM
Corp., 148 F.3d 63, 66 (2d Cir. 1998)), and have described “good cause”
in the context of Rule 6(b)(1) as a “non-rigorous standard,” Manigault
v. ABC Inc., 796 F. App’x 13, 15 (2d Cir. 2019).
Thus, while the district court’s disparate treatment of
Alexander’s and the Commissioner’s motions for an extension might
appear inequitable, the disparate treatment was defensible because
the motions were subject to different standards. When evaluating the
Commissioner’s motions under Federal Rule of Civil Procedure
6(b)(1), the district court enjoyed “wide discretion.” Ramashwar, 231
F. App’x at 27-28. But the district court’s power to grant Alexander’s
motion under Federal Rule of Appellate Procedure 4(a)(5) was
“severely circumscribed,” Goode, 252 F.3d at 245, notwithstanding the
fact that the rules use similar language. In light of that profound
difference, we cannot say that the district court’s failure to treat the
Commissioner and Alexander in the same manner with respect to
their motions was an abuse of discretion.
CONCLUSION
We hold that the district court did not abuse its discretion in
denying Alexander’s motion for an extension under Federal Rule of
Appellate Procedure 4(a)(5). Accordingly, the judgment of the district
court is AFFIRMED.
28