Pasquale v. Finch, 7371.

• Decision Date: 02 December 1969
• Docket Number: No. 7371.,7371.
• Citation: 418 F.2d 627
• Parties: James P. PASQUALE, Plaintiff, Appellee, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

418 F.2d 627 (1969)

James P. PASQUALE, Plaintiff, Appellee, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant, Appellant.

No. 7371.

United States Court of Appeals First Circuit.

December 2, 1969.

Morton Hollander, Atty., Department of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., Lincoln C. Almond, U. S. Atty., and Robert V. Zener, and Judith S. Seplowitz, Attys., Department of Justice, were on brief, for appellant.

Frank R. Mazzeo, Providence, R. I., for appellee.

Before ALDRICH, Chief Judge, WOODBURY,^* Senior Circuit Judge, and COFFIN, Circuit Judge.

COFFIN, Circuit Judge.

The government has appealed from a final judgment by the district court, Pasquale v. Cohen, 296 F.Supp. 1088 (D.R.I.1969), granting the plaintiff Pasquale's motion for summary judgment and denying the defendant government's similar motion. While resisting the government's appeal on the merits, Pasquale also contends that the government lost its right to appeal by waiting 103 days before noticing its appeal. We consider the plaintiff's procedural objections first.

The district court entered its final judgment on March 11, 1969, remanding the case to the Secretary of Health, Education and Welfare for a computation of the disability benefits to which the court had found Pasquale entitled. Rule 4(a) of the Federal Rules of Appellate Procedure provides that in all cases in which the United States or its agencies or officers are a party, all parties shall have 60 days in which to notice their appeal. That 60-day period expired on May 12, the 60th day — May 10 — being a Saturday. See Rule 6, F.R.Civ.P. The government did not appeal. However, Rule 4(a) also provides that the district court may extend the original appeal period for a period not to exceed thirty days "upon a showing of excusable neglect". Due to a mistake in the handling of the mail within the Justice Department, government counsel there first learned about the March 11 judgment on June 4. Seven days later, on June 11 — the 30th day after May 12 — the government filed a motion pursuant to Rule 4(a) to extend the time period for filing the Notice of Appeal, based on an allegation and affidavit of the requisite "excusable neglect". On June 23, the district court granted the government's motion and extended the filing time until the next day, June 24. The government filed its formal Notice of Appeal on June 24, the 43rd day after May 12.

Three issues are presented. First, we agree with the view of the government, the district court, and the Second, Fourth, and Sixth Circuits that the district court was not required to make its ruling on the government's motion within the 30-day period after May 12. C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952, 954-955 (2d Cir. 1968); Evans v. Jones, 366 F.2d 772, 773 (4th Cir. 1966); Reed v. People of the State of Michigan, 398 F.2d 800, 801 (6th Cir. 1968)¹; see Reconstruction Finance Corp. v. Prudence Group, 311 U.S. 579, 582, 61 S.Ct. 331, 85 L.Ed. 364 (1941). To accept Pasquale's reading of Rule 4(a) might require the court to make a hasty and unconsidered decision, as in a case such as ours where the motion was filed on the 30th day. But see Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3rd Cir. 1962); 9 Moore's Federal Practice, ¶ 204.132 at pp. 974-978.

Second, although the government's actual Notice of Appeal was filed on June 24 — the 43rd day after May 12 — rather than on June 11, the 30th day, we are willing to assume, for purposes of this case only, that its motion to extend on June 11 served as a notice of appeal for purposes of Rule 4(a). See Fitzsimmons v. Yeager, 391 F.2d 849, 853 (3d Cir. 1968) (en banc), cert. denied 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 137 (1968); Carter v. Campbell, 285 F.2d 68, 71-72 (5th Cir. 1960); 9 Moore's Federal Practice, ¶ 203.09, ¶ 204.133 at p. 979. Obviously the proper procedure is to file the formal Notice of Appeal contemporaneously with the motion to extend — or at least within the 30-day extension period — and we look with disfavor on the government's inexcusable failure to comply with the clear mandate of Rule 4(a).

What troubles us even more, however, is the district court's holding that there was "excusable neglect" on the part of the government which justified this 30 day extension. The only excuse offered by the government for the fact that the March 11 judgment was not discovered until June 4 was that the notification was mislaid due to a mistake in the handling of the mail after it was received by the Justice Department. While we accord "great deference" to the district court's ruling on "excusable neglect", Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), we believe that the excuse offered, without further justification and in light of other factors indicated below, suggests that the 90 day delay here was indeed inexcusable and not the result of the type of inadvertence which Rule 4(a) was intended to rectify.

Rule 73(a), F.R.Civ.P., was amended in 1966 and recodified in 1968 as Rule 4(a), F.R.App.P. Concerning that amendment, which deleted the words "based upon a failure of a party to learn of the entry of the judgment" which had previously followed the words "excusable neglect", the Advisory Committee stated:

"In view of the ease with which an appeal may be perfected, no reason other than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result." 9 Moore\'s Federal Practice, ¶ 73.0122 at p. 3126.

In our case, counsel of record who had argued the case in the district court — the Rhode Island U. S. Attorney and his Assistant — received proper notice of judgment in early March. They conveyed such notice to the Justice Department and did no more; counsel at oral argument indicated that the supplementary procedure designed to prevent such inadvertent inaction, by the automatic filing of a protective appeal if nothing is heard from the Justice Department after a certain number of days, was inexplicably not carried out. See Department of Justice Order No. 207-60, § 6. The government is given a 60-day appeal period under Rule 4(a) — rather than the 30-day period normally afforded private parties and state governments and agencies — in order to accommodate interoffice routing procedures. 9 Moore's Federal Practice, ¶ 204.10 at pp. 923-924. Yet even though proper notice reached the Justice Department soon after March 11, it was apparently more than two months before the internal routing procedure finally brought such notice to the attention of the responsible government attorney; indeed, it appeared from oral argument that it was Pasquale's own inquiry about his benefits, rather than the routing procedure, which finally rendered notice to the responsible attorney. Even then, seven days passed before a Rule 4(a) motion to extend was filed, and even that may have been procedurally inadequate because the formal Notice of Appeal was not filed within the 30-day period which Rule 4(a) clearly requires. See discussion supra.

We cannot say that such mishandling within the Justice Department after authorized counsel of record receives actual notice, particularly when combined with the other indicia of carelessness indicated above, justifies a court in extending the time for appeal. See Brahms v. Moore-McCormack Lines, Inc., 18 F.R.D. 502 (S.D.N.Y.1955); Lowry v. Long Island Rail Road Co., 370 F.2d 911 (2d Cir. 1966); Long v. Emery, 383 F.2d 392 (10th Cir. 1967); but see Resnick v. Lehigh Valley RR, 11 F.R.D. 76 (S.D.N.Y.1951). To say otherwise is so to enlarge a remedial power devised for the exceptional case as to cover any kind of garden-variety oversight.

Nor does injustice result from our denial of an extension. A man who has erroneously — by the hearing examiner's own statement — been denied disability benefits in his first effort to obtain them should not be denied those benefits because his second effort is begun one month too late (see infra), when such denial now depends on the government's obtaining a one month extension for itself under the circumstances we have noted. It does not shock us that depriving the careless government of a month to which it is not entitled, see supra, may result in giving a deserving claimant a month to which he would otherwise, see infra, not be entitled. Accordingly, we hold that the district court erred in granting an extension to the government in the aforementioned circumstances, so that the government's appeal is precluded.

This disposition would of course normally make unnecessary any consideration of the merits of the government's appeal. However, we feel compelled to discuss the merits simply because we believe that the district court has rendered a mistaken interpretation of the relevant regulations which could misguide future claimants. Our discussion of this point requires a brief review of the facts in this case.

In August 1961 Pasquale applied to the Social Security Administration for disability insurance benefits, alleging that he had become disabled as a result of a back injury some two years earlier. This application was denied on January 10, 1962. Further adminstrative appeals followed, culminating in a denial of benefits at the highest administrative level — the Appeals Council — on July 5, 1963. Pasquale was notified that he could commence an action in the federal district court within 60 days but no appeal was taken.

On February 10, 1966, Pasquale applied a second time for disability insurance benefits for the same back injury. On May 3, 1967, a hearing examiner found that Pasquale was indeed entitled to benefits for his disability which began at least as early as November 30, 1961, but...