James P. Pasquale v. Robert H. Finch, Sec'y of Health, Educ. & Welfare, 418 F.2d 627 (1st Cir. 1969). · Go Syfert
James P. Pasquale v. Robert H. Finch, Sec'y of Health, Educ. & Welfare, 418 F.2d 627 (1st Cir. 1969). Cases Citing This Book View Copy Cite
92 citation events (8 in the last 25 years) across 31 distinct courts.
Strongest positive: Lawrence Site Plan Approval (vtsuperct, 2011-09-22)
Treatment trajectory · 1971 → 2026 · click a year to view as-of
1971 1998 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Lawrence Site Plan Approval
Vt. Super. Ct. · 2011 · confidence medium
The purpose of Rule 6(b) is to provide a “remedial power . . . for exceptional cases” and not to “cover any kind of garden-variety oversight.” Id. (quoting Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969)).
discussed Cited as authority (rule) Lanmar Aviation, Inc. v. Holske
Mass. Dist. Ct., App. Div. · 2009 · confidence medium
Rule 4(c) pro vides that “[u]pon a showing of excusable neglect or other good reason, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed ten days from the expiration of the time otherwise prescribed by this rule.” 2 The concept of excusable neglect does not embrace “[a] flat mistake of counsel about the meaning of a statute or rule,” Goldstein v. Barron, 382 Mass. 181, 186 (1980), or other “garden-variety oversightfsj.” Id., quoting Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).
discussed Cited as authority (rule) Manjourea v. Nadeau
Mass. Super. Ct. · 2009 · confidence medium
The concept of excusable neglect does not embrace “[a] flat mistake of counsel about the meaning of a statute or rule . . . ; relief is not extended ‘to cover any kind of garden-variety oversight,’ ” Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting from Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).
discussed Cited as authority (rule) Commonwealth v. Trussell
Mass. App. Ct. · 2007 · confidence medium
It is [meant] to take care of emergency situations only.’ Stem, Changes in the Federal Appellate Rules, 41 F.R.D. 297 , 299 (1967). ‘A flat mistake of counsel about the meaning of a statute or role may not justify relief: relief is not extended “to cover any kind of garden-variety oversight.” ’ Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting from Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).” Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981).
discussed Cited as authority (rule) Commonwealth v. Barboza
Mass. App. Ct. · 2007 · confidence medium
It is [meant] to take care of emergency situations only.’ Stem, Changes in the Federal Appellate Rules, 41 F.R.D. 297 , 299 (1967). ‘A flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not extended “to cover any kind of garden-variety oversight.” ’ Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting from Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).” Feltch v. General Rental Co., 383 Mass. 603, 614 (1981).
discussed Cited as authority (rule) Wallace v. Bajema
Mass. Super. Ct. · 2003 · confidence medium
See Goldstein v. Barron, 382 Mass. 181, 186 (1980) [“Aflat mistake of counsel about the meaning of a statute or rule may not justify relief; relief is not extended to cover any kind of garden-variety oversight.” Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969) (construing “excusable neglect” in Fed.R.App.P. 4 [a])].
discussed Cited as authority (rule) Chu Tai v. City of Boston
Mass. App. Ct. · 1998 · confidence medium
The party seeking the relief bears the burden of justifying failure to avoid the mistake or inadvertence.” (Citations omitted.) See Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987); Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969); Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir. 1975).
discussed Cited as authority (rule) Schell v. Birnbaum
Mass. Super. Ct. · 1994 · confidence medium
The Goldstein court also noted that “[a] flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not to be extended ‘to cover any kind of garden-variety oversight.’ ” Id. at 186 (quoting Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969)).
discussed Cited as authority (rule) Cuocci v. Goetting
D. Vt. · 1993 · confidence medium
The Miller court also indicated that the grounds proffered for an extension due to excusable neglect must not have “the effect of reading out of the rule any limits upon extensions of time ... [nor] so ... enlarge a remedial power devised for the exceptional case as to cover any kind of garden-variety oversight.” Pa *453 squale v. Finch, 418 F.2d 627, 639 (1st Cir.1969).
discussed Cited as authority (rule) Trooper Alvin T. Pontarelli v. Walter E. Stone, Trooper Alvin T. Pontarelli v. Walter E. Stone, Trooper Alvin T. Pontarelli v. Walter E. Stone, State of Rhode Island
1st Cir. · 1991 · confidence medium
Pontarelli v. Stone, 713 F.Supp. 525, 529-533 (D.R.I.1989). 13 We review the district court's interpretation of FRAP 4(a)(5) de novo, see Ramseur v. Beyer, 921 F.2d 504 , 506 n. 2 (3d Cir.1990), but otherwise defer to its denial of the requested extension in the absence of an abuse of discretion, id.; Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th Cir.1990); Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir.1969) ("we accord 'great deference' to the district court's ruling on 'excusable neglect' " under FRAP 4(a)) (citation omitted); cf. United States v. Twomey, 845 F.2d 1132, 1134 (1st C…
discussed Cited as authority (rule) Pontarelli v. Stone
1st Cir. · 1991 · confidence medium
We review the district court’s interpretation of FRAP 4(a)(5) de novo, see Ramseur v. Beyer, 921 F.2d 504 , 506 n. 2 (3d Cir.1990), but otherwise defer to its denial of the requested extension in the absence of an abuse of discretion, id.; Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th Cir.1990); Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir.1969) (“we accord ‘great deference’ to the district court’s ruling on ‘excusable neglect’ ” under FRAP 4(a)) (citation omitted); cf. United States v. Twomey, 845 F.2d 1132, 1134 (1st Cir.1988) (finding of “excusable neglect” un…
discussed Cited as authority (rule) 650 Park Avenue Corporation v. Maria McRae
2d Cir. · 1988 · confidence medium
See also Oregon v. Champion Int’l Corp., 680 F.2d 1300 , 1300-01 (9th Cir.1982) (per curiam) (no excusable neglect where notice of appeal arrived one day late because envelope was addressed to state court); Selph v. Council of the City of Los Angeles, 593 F.2d 881, 883 (9th Cir.1979) (no excusable neglect where “confusion of moving [counsel’s] office disrupted normal calendaring practices”); Airline Pilots in the Serv. of Executive Airlines, Inc. v. Executive Airlines, Inc., 569 F.2d 1174, 1174-75 (1st Cir.1978) (per curiam) (no excusable neglect where secretary mistakenly recorded end…
discussed Cited as authority (rule) Tony P. Campos v. Eugene S. Lefevre, Superintendent, Clinton Correctional Facility
2d Cir. · 1987 · confidence medium
We held that “[n]oth-ing in Rule 4(a) precludes the district court, more than 60 days after entry of judgment, from granting an extension of time to sanction the late filing of a notice of appeal within the second half of the 60-day period, *673 provided a purported notice of appeal has actually been filed within that period.” 511 F.2d at 1032 (citing C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952, 954-55 (2d Gir.1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir.1969)).
cited Cited as authority (rule) Cullen Enterprises, Inc. v. Massachusetts Property Insurance Underwriting Ass'n
Mass. · 1987 · confidence medium
Relief is not justified for “any kind of garden-variety oversight.” Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).
discussed Cited as authority (rule) Arcadia Valley Hosp. v. Bowen
E.D. Mo. · 1986 · confidence medium
Fase v. Seafarers Welf. & Pension Plan, 574 F.2d 72 , 77 (2nd Cir. 1978); Pasquale v. Finch, 418 F.2d 627, 630 (5th Cir.1969); Kings Professional Basketball Club, Inc. v. Green, 597 F.Supp. 350, 357 (W.D.Mo.1984).
discussed Cited as authority (rule) Barry v. Connolly
Mass. · 1985 · confidence medium
“A flat mistake of counsel . . . may not justify relief; relief is not extended ‘to cover any kind of garden-variety oversight.’” Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).
examined Cited as authority (rule) Kings Professional Basketball Club, Inc. v. Green (3×) also: Cited "see"
W.D. Mo. · 1984 · confidence medium
Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir.1969), cited Brahms and cases from the Second arid Tenth Circuits with approval but refused to follow Resnick .
discussed Cited as authority (rule) Leadbetter International Trucks, Inc. v. State Tax Assessor
Me. · 1984 · confidence medium
Mistake of counsel respecting the meaning of a statute or rule of court in and of itself may not justify relief, as relief is not to be extended “to cover any kind of garden-variety oversight.” See Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir.1969); Goldstein v. Barron, 382 Mass. 181 , 414 N.E.2d 998, 1001 (1980).
discussed Cited as authority (rule) Freeman v. Dole
D.D.C. · 1984 · confidence medium
Shah v. Hutto, — U.S. -, 104 S.Ct. 2354 , 80 L.Ed.2d 827 (1984) (pro se prisoner held to lower standard of care in adhering to Fed.R.App.P. 4 than would be an attorney); Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir.1976), cert. denied, 429 U.S. 886 , 97 S.Ct. 238 , 50 L.Ed.2d 167 (1976) (excusable neglect exists only under unique or extraordinary circumstances; “[i]f this includes a mere palpable mistake by experienced counsel, the requirement would be meaningless”); Doctor v. Seaboard Coast Line Railroad Company, 540 F.2d 699 , 704 (4th Cir.1976) (excusable neglect exi…
discussed Cited as authority (rule) Coleman v. Block (2×) also: Cited "see, e.g."
D.N.D. · 1984 · confidence medium
The appellate court stated that it was satisfied with the lower court’s decision, even though “it is by no means clear that a finding of ‘interest(s) of justice’ can be read as a specific finding of ‘excusable neglect’ under the Rule.” Id. at 704, citing, Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir.1969).
cited Cited as authority (rule) Northwest Commercial Fishermen's Federal Recovery Ass'n v. United States
Ct. Cl. · 1984 · confidence medium
See Oregon v. Champion International Corp., 680 F.2d at 1301 ; Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir.1969); Prestex, Inc. v. United States, 4 Cl.Ct. at 19 .
cited Cited as authority (rule) Oregon v. Champion International Corp.
9th Cir. · 1982 · confidence medium
See Selph,. 593 F.2d at 882 ; Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir. 1976); Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).
discussed Cited as authority (rule) State of Oregon v. Champion International Corporation
9th Cir. · 1982 · confidence medium
See Selph, 593 F.2d at 882 ; Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir. 1976); Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969). 4 None of the cases relied upon by appellants holds to the contrary.
cited Cited as authority (rule) Miller v. Ladd
Vt. · 1981 · confidence medium
The effect would be “so to enlarge a remedial power devised for the exceptional case as to cover any kind of garden-variety oversight.” Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).
discussed Cited as authority (rule) Feltch v. General Rental Co.
Mass. · 1981 · confidence medium
“A flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not extended ‘to cover any kind of garden-variety oversight.’” Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting from Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969).
discussed Cited as authority (rule) Goldstein v. Barron
Mass. · 1980 · confidence medium
The second clause reads: “the court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.” 10 The plaintiff tried to resort to this *186 rule. 11 Although the rule is not applicable by its terms, it should be applied by analogy, as its Federal counterpart has been. 12 The misapprehension of plaintiff s counsel resulting in a delayed filing is here claimed to be “excusable.” A flat mistake of counsel about the meaning of a statute or r…
cited Cited as authority (rule) Matter of Inwood Realty Co.
S.D.N.Y. · 1980 · confidence medium
See C-Thru Products Inc. v. Uniflex, Inc., 397 F.2d 952, 954-55 (2d Cir. 1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969).” Id. at 1032.
discussed Cited as authority (rule) United States v. Luis Ramirez Ferrer (2×)
1st Cir. · 1980 · confidence medium
See, e. g., USM Corp. v. GKN Fasteners Ltd., 578 F.2d 21, 22 (1st Cir. 1978); Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir. 1978); Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir.), cert. denied, 429 U.S. 886 , 97 S.Ct. 238 , 50 L.Ed.2d 167 (1976); Pasquale v. Finch, 418 F.2d 627, 629-30 (1st Cir. 1969). *1191 While the present facts would not warrant a finding of excusable neglect in a civil case under Rule 4(a), we are not persuaded that the district court here abused its discretion under Rule 4(b), where the criminal defendant’s special interest …
discussed Cited as authority (rule) Knapp v. Cramer
Mass. Dist. Ct., App. Div. · 1980 · confidence medium
In Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969), a notice of entry of judgment received by the Justice Department, but not brought to the attention of the responsible attorneys due to a mishandling of the mails, was held not to constitute excusable neglect.
cited Cited as authority (rule) Dehn v. Otter Tail Power Co.
N.D. · 1976 · confidence medium
See C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952, 954-55 (2d Cir. 1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969).” Stirling v. Chemical Bank, supra at 1032.
cited Cited as authority (rule) Rose M. Salazar v. San Francisco Bay Area Rapid Transit District
9th Cir. · 1976 · confidence medium
See, Brainerd v. Beal, 498 F.2d 901 , 90S, n. 3 (CA7 1974); Pasquale v. Finch, 418 F.2d 627, 629, n. 1 (CA1 1969).
discussed Cited as authority (rule) In the Matter of Orbitec Corporation, Bankrupt. May McCormack v. Robert B. Schindler, Trustee
2d Cir. · 1975 · confidence medium
There is some force in this since the application puts the prevailing party on notice that trouble may lie ahead. 5 In Pasquale v. Finch, 418 F.2d 627, 629 (1 Cir. 1969), the court stated it “was willing to assume, for purposes of this case only” that the Government’s motion for an extension “served as a notice of appeal for purposes of Rule 4(a).” However, the court watered this down considerably by adding that “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 …
discussed Cited as authority (rule) David Stirling, Jr., and William G. Stirling v. Chemical Bank, Individually, and as Agent, David Stirling, Jr., and William G. Stirling v. Union Planters National Bank of Memphis
2d Cir. · 1975 · confidence medium
See C-Thru Products Inc. v. Uniflex, Inc., 397 F.2d 952 , 954--55 (2d Cir. 1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969). 7 Although we thoroughly disapprove of the careless procedure followed by appellants' counsel, who demonstrated a singular disregard for or ignorance of the pertinent rules, we will remand the case, in view of the showing made, to the district court for the purpose of determining whether there was excusable neglect entitling appellants, in the district court's discretion, to an extension of time nunc pro tunc to December 19, 1974, for the filing of their notic…
cited Cited as authority (rule) Stirling v. Chemical Bank
2d Cir. · 1975 · confidence medium
See C-Thru Products Inc. v. Uniflex, Inc., 397 F.2d 952 , 954—55 (2d Cir. 1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969).
discussed Cited as authority (rule) Carl H. Alley v. Dodge Hotel
D.C. Cir. · 1974 · confidence medium
Court, 98 U.S.App.D.C. 160 , 162-163, 233 F.2d 362, 364-365 , vacated on other grounds, 352 U.S. 904 , 77 S.Ct. 151 , 1 L.Ed.2d 114 (1956) (petition for mandamus in court of appeals) ; Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969) (application for extension of time to file notice of appeal) ; Richey v. Wilkens, 335 F.2d 1, 4-5 (2d Cir. 1964) (notice of appeal in court of appeals rather than district court) ; Frace v. Russell, 341 F.2d 901, 902 (3d Cir.), cert. denied, 382 U.S. 863 , 86 S.Ct. 127 , 15 L.Ed.2d 101 (1965) (“brief for appeal” in court of appeals) ; Holley v. Capps, 468 …
cited Cited as authority (rule) Linabary v. Maritime Overseas Corporation
S.D.N.Y. · 1973 · signal: cf. · confidence medium
Co., 434 F.2d 65 (3d Cir. 1970); cf. Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969). 1 .
discussed Cited as authority (rule) Kogut v. Brenner (2×) also: Cited "see"
R.I. · 1973 · confidence medium
Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969).
discussed Cited "see" Hinton v. City Of Elwood
10th Cir. · 1993 · signal: see · confidence high
See Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir.1969) (stating that counsel may "file the formal [n]otice of [a]ppeal contemporaneously with the motion to extend"); see also Tarabishi v. McAlester Regional Hosp., 951 F.2d 1558 , 1563 n. 3 (10th Cir.1991) (concluding that defendant's untimely cross-appeal was validated by the district court's approval of defendant's subsequent motion to extend, but noting that issue raised in cross-appeal would have been considered anyway since a party may raise any ground for upholding a favorable judgment), cert. denied, --- U.S. ----, 112 S.Ct. 2996 , 120 …
discussed Cited "see" Hinton v. City of Elwood
10th Cir. · 1993 · signal: see · confidence high
See Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir.1969) (stating that counsel may “file the formal [n]otice of [a]ppeal contemporaneously with the motion to extend”); see also Tarabishi v. McAlester Regional Hosp., 951 F.2d 1558 , 1563 n. 3 (10th Cir.1991) (concluding that defendant’s untimely cross-appeal was validated by the district court’s approval of defendant’s subsequent motion to extend, but noting that issue raised in cross-appeal would have been considered anyway since a party may raise any ground for upholding a favorable judgment), cert. denied — U.S. -, 112 S.Ct. 2996 …
cited Cited "see" Longstreth v. City of Tulsa
10th Cir. · 1991 · signal: see · confidence high
See Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir.1969).
cited Cited "see" Longstreth v. City Of Tulsa
10th Cir. · 1991 · signal: see · confidence high
See Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir.1969).
cited Cited "see" Jackie G. Williams and Patricia A. Williams v. United States
5th Cir. · 1977 · signal: see · confidence high
See Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2d Cir. 1968).
cited Cited "see" United States v. Frank Jerome Hoye
6th Cir. · 1977 · signal: see · confidence high
See Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969); See also Parker v. EEOC, 534 F.2d 977 (D.C.Cir. 1976).
cited Cited "see" Doctor v. Seaboard Coast Line Railroad Co.
4th Cir. · 1976 · signal: see · confidence high
See Pasquale v. Finch (1st Cir. 1969) 418 F.2d 627, 630 .
cited Cited "see" State v. Gonzales
N.M. Ct. App. · 1973 · signal: see · confidence high
See, Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969) where trial court’s extension for excusable neglect was reversed and the appeal dismissed. 9 Moore’s Federal Practice at 974-978 (1972 Ed.).
discussed Cited "see" Tietze v. Richardson
S.D. Tex. · 1972 · signal: see · confidence high
See dicta in Pasquale v. Finch, 418 F.2d 627, 631-633 (1st Cir. 1969), questioning the lower court decision, Pasquale v. Cohen, 296 F.Supp.1088 (D.R.I.1969), but dismissing the appeal as untimely filed.
cited Cited "see, e.g." Snow v. Capitol Terrace, Inc.
D.C. · 1992 · signal: compare · confidence low
Compare Selph v. Los Angeles, 593 F.2d 881 (9th Cir.1979), and Dyotherm Corp. v. Turbo Machine Co., 434 F.2d 65 (3d Cir.1970) with Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969).
discussed Cited "see, e.g." Joseph L. Best v. J.H. Griffin, Superintendent, D.T. Parks, Assistant Superintendent, R.L. Sharpe, Unit P/A
4th Cir. · 1989 · signal: compare · confidence medium
Compare United States v. Hoye, 548 F.2d 1271, 1273 (6th Cir.1977) (treating motion for extension as notice of appeal) and Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir.1969) ("willing to assume, for purposes of this case only, that its motion to extend on June 11 served as a notice of appeal for the purposes of Rule 4(a)") with Dyotherm Corp. v. Turbo Machine Co., 434 F.2d 65, 66 (3d Cir.1970) (motion for extension of time does not operate as notice of appeal; it merely keeps losing party's options open); Matter of Orbitec Corp., 520 F.2d 358, 361-62 (2d Cir.1975) (declining to construe motion…
discussed Cited "see, e.g." Jones v. Wolfson (2×)
S.D.N.Y. · 1981 · signal: see also · confidence low
Matter of Orbitec Corp., 520 F.2d 358 (2d Cir. 1975); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2d Cir. 1968); see also Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969).
Retrieving the full opinion text from the archive…
James P. PASQUALE, Plaintiff, Appellee,
v.
Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant, Appellant
7371.
Court of Appeals for the First Circuit.
Dec 2, 1969.
418 F.2d 627
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.
Aldrich, Woodbury, Coffin.
Cited by 66 opinions  |  Published
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, Pas[*629] quale 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.Ci. 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, ¶ 204.13 [2] 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, If 203.09, ff 204.13 [3] 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 justi[*630] fied 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, ¶ 73.01 [22] 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, fl 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 swpra.

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 ease 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[*631] 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 that such benefits could only be awarded from February 1965, one year before the filing of the second application. Social Security Act, § 223(a) (b), 42 U.S.C. § 423(a) (b) (1964). Pasquale concedes the validity of that holding, but contends that the hearing examiner should have reopened his initial application of August 1961, which reopening would probably have entitled Pasquale to benefits for the full period of his disablement. The hearing examiner's refusal to reopen was sustained by the Appeals Council, which reasoned that 20 C.F.R. § 404.957 — which provides for the reopening of a prior application, for good cause, within four years after its “initial determination”— did not apply to Pasquale because his first application had had its “initial determination” on January 10, 1962, four years and one month prior to the second application. Pasquale appealed this decision to the district court, which held that Pasquale could avail himself of that regulation since the “initial determination”, as those words were intended by § 404.957, had occurred on July 5, 1963, the day the January 1962 determination had become final. Pasquale v. Cohen, 296 F.Supp. at 1093. Thus, we are confronted with the issue whether the words “initial determination” as they appear in 20 C.F.R. § 404.957 refer to the first determination by the Social Security Administration or to the Administration’s final resolution of the first determination.

The reopening provision, 20 C.F.R. § 404.957, provides, in relevant part, that

“An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final * * * may be reopened: ******

(b) * * * within 4 years after the date of the notice of the initial determination (see § JfOJf.907) to the party to such determination, upon a finding of good cause. * * * [Emphasis added.]

The reference to § 404.907 which immediately follows the critical words clearly indicates that the words “notice of initial determination” refer to the notice concerning the first determination by the Administration regarding a given application, for that section requires the[*632] Secretary to send notice to a claimant when the initial decision is made on his application and, if the application has been denied, to inform the claimant of his right to reconsideration. Pasquale’s § 404.907 “notice of initial determination” was sent on January 10, 1962, more than four years before his effort to reopen for “good cause” was commenced.

Moreover, the repeated use of the phrase “initial determination” throughout these regulations — e. g., 20 C.F.R. §§ 404.902, 404.905-404.914, 404.917, 404.-953, 404.954, and 404.956 — clearly indicates that the words refer to the first step in a four-step administrative appeals system: initial determination, §§ 404.905-404.908; reconsideration, §§ 404.909-404.916; hearing, §§ 404.917-404.940; and Appeals Council, §§ 404.-941-404.955. We have found no indication whatever that the phrase was used or intended in other parts of these regulations to mean anything but the first determination in the administrative scheme; the explicit reference to § 404.907 in the reopening provision itself is overwhelming evidence .that “initial determination” was intended to have the same meaning there that it clearly has in § 404.907 and throughout these regulations. That the determination must be final before it can be reopened, as § 404.957 itself requires, is in no way inconsistent with our interpretation of § 404.957 that the reopening period begins with the notice of initial determination.

The district court concluded that the reopening provision’s reference to “initial determination” was intended to mean the day on which the “initial determination” became final, here July 5, 1963. As we have indicated above, we can find nothing in the- regulations to suggest that those words were intended to have that meaning; sections 404.947 and 404.950 relate to the notice of the Appeals Council’s resolution of an application and had it been that determination which was intended by § 404.957, the reference there would have been to those sections, not to § 404.907.

The district court was concerned by the fact that the claimant who utilized all three administrative appeals might find that his four year “reopening” period had been substantially exhausted by his appeals, so that he would only have a short period in which to seek reopening rather than the full four years that one who made no appeals would have. We think this reasoning faulty for two reasons. First, to read the regulations as to the district court has would afford a much longer reopening period to the claimant who appealed than to the claimant who did not, thereby prejudicing the latter group. In other words, had Pasquaje not appealed, he would only have until January 10, 1966, but since he did take an appeal within the Administration, he would, under the district court’s interpretation, have until July 5, 1967 to seek reopening. More importantly, however, the district court overlooked .the fact that a claimant has a right to introduce new evidence at each level of his administrative appeal. See 20 C.F.R. §§ 404.914, 404.925-404.930, and 404.949. Thus, while he may be using up some of his time for reopening, he has a continuing opportunity to have all his evidence heard whenever he produces it. We think that it would be inequitable to afford an appealing claimant an additional four years for reopening after he has already had additional hearings before the administration.

Thus, we conclude that the clear meaning of § 404.957 also produces a more equal treatment of all claimants. We can conceive of circumstances where these regulations might be administered in such a manner as to prejudice an appealing claimant, i. e., by deliberately delaying a determination on appeal so as to preclude reopening. We cannot believe that a court would be powerless in such exceptional circumstances to allow a reopening to one who sought it promptly. It should be remembered, however, that the regulation in question only bears on a claimant’s right to reopen his application within the Administration; his right to[*633] appeal to the federal district court within 60 days of the Administration’s final decision exists in any event. 42 U.S.C. § 405(g) (1964); 20 C.F.R. § 404.951.

Appeal dismissed.

1

. In both Evans and Reed, the Notice of Appeal was filed within the 30-day extension period but no motion to extend was ever filed. Both Circuit Courts remanded to the district court for a determination of whether there was “excusable neglect” for the late filing of the Notice of Appeal. Without necessarily approving the court’s rule which disregards any need for the timely filing of a motion to extend — with its supporting affidavits — -we do agree with their rule that the district court’s decision on whether to extend for “excusable neglect” need not be made within the 30-day extension period.