Robert Sherman v. Patrick Quinn , 668 F.3d 421 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3722 & 10-3925
R OBERT S HERMAN,
Plaintiff-Appellant/
Cross-Appellee,
v.
P ATRICK Q UINN, in his official
capacity as Governor of the State
of Illinois, et al.,
Defendants-Appellees/
Cross-Appellants.
Appeals from the United States District Court
for the Central District of Illinois.
No. 10 C 3086—Michael P. McCuskey, Chief Judge.
A RGUED S EPTEMBER 9, 2011—D ECIDED JANUARY 3, 2012
Before C UDAHY, P OSNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Robert Sherman challenges
certain portions of Illinois Public Act 96-39, also known
as the 2009 “Illinois Jobs Now!” capital bill. He alleges
that certain line item appropriations made through the
2 Nos. 10-3722 & 10-3925
legislation improperly fund grants to religious organiza-
tions in violation of the Establishment Clause of the
First Amendment. Because we find that the district court
abused its discretion in granting Sherman an extension
to file his notice of appeal, we dismiss his appeal for
lack of jurisdiction, and the defendants-appellees’ cross-
appeal as moot.
I. BACKGROUND
On April 7, 2010, Robert Sherman filed a seven-count
complaint in the district court seeking injunctive relief
against Patrick Quinn, sued in his official capacity as
Governor of the State of Illinois, Warren Ribley, sued in
his official capacity as Director of the Illinois Depart-
ment of Commerce and Economic Opportunity (the
“Department”), and Daniel W. Hynes, sued in his official
capacity as Comptroller of the State of Illinois. The com-
plaint challenged certain appropriations made under
Public Act 96-39, generally known as the 2009 “Illinois
Jobs Now!” capital bill. The capital bill included line
item appropriations to funds from the Build Illinois
Bond Fund (established in 1985, see 30 ILCS 425/9 (2008))
to the Department for grants to thousands of not-for-
profit organizations and local governments for capital
construction, infrastructure, improvement, and repair
costs.
Sherman challenged an appropriation made to Gov-
ernor Quinn for discretionary spending as well as 155 of
the line item appropriations that fund grants to religious
organizations, arguing that such appropriations violate
Nos. 10-3722 & 10-3925 3
the Establishment Clause of the First Amendment and
Illinois state law. The line item appropriations in
capital bill, for example, provided that $75,000 be ap-
propriated from the Build Illinois Bond Fund to the De-
partment “for a grant to the Union Missionary Baptist
Church for costs associated with capital improvements,”
that $140,000 be appropriated for a grant “for general
infrastructure at St. Martin de Porres Church,” and that
$225,000 be appropriated for a grant to the Chicago
Chesed Fund “for costs associated with capital improve-
ments.” 1
The defendants moved to dismiss the complaint on
the grounds that the Eleventh Amendment barred Sher-
man’s state law claims, that Sherman lacked standing
to challenge the discretionary appropriation to the Gov-
ernor, and that the complaint failed to state a claim that
the line item appropriations violated the Establishment
Clause either as applied or on their face. Sherman re-
sponded to the motion, and also asked that, if the court
determined that his complaint failed to state a claim
regarding the line item appropriations, he be given
leave to amend the complaint to add additional facts.
On August 6, 2010, the district court entered an order
granting the defendants’ motion to dismiss and denying
Sherman’s request for leave to file an amended com-
plaint. The court agreed with the defendants that
the Eleventh Amendment barred Sherman’s state law
1
See Ill. P.A. 96-956, Art. 102, § 3910; Art. 103, § 1805; and
Art. 102, § 255.
4 Nos. 10-3722 & 10-3925
claims, that Sherman lacked standing to challenge the
discretionary appropriation to the Governor, and that
the complaint failed to state an as-applied challenge to
the line item appropriations because the funds had not
yet been dispersed. The court also found that the com-
plaint failed to state a claim that the line item appro-
priations were facially invalid, applying the test set
forth in Lemon v. Kurtzman, 403 U.S. 602 (1971).
On September 13, 2010, Sherman filed a motion to
reconsider and amend the judgment under Federal
Rule of Civil Procedure 59(e), arguing that grants to the
explicitly sectarian organizations, such as the church
grantees, could not possibly be used for secular pur-
poses. On October 14, 2010, the district court entered
an order denying Sherman’s motion.
The thirty-day period for Sherman to file his notice of
appeal under Federal Rule of Appellate Procedure
4(a)(1)(A) expired on November 15, 2010. On Novem-
ber 16, 2010, Sherman filed a motion to extend the time
to file his notice of appeal under Federal Rule of Ap-
pellate Procedure 4(a)(5), which allows the district court
to grant an extension upon a showing of “excusable
neglect or good cause” if the motion is filed within
thirty days after the time to appeal the judgment has
run. Fed. R. App. P. 4(a)(5)(A)(ii). Sherman argued that
the “good cause” standard applied, and that he met
such a standard. Sherman’s counsel attached to the
motion an affidavit, in which counsel stated that
the deadline for filing the notice to appeal “slipped
through the cracks” due to the demands on his time
Nos. 10-3722 & 10-3925 5
from his ballot-qualified candidacy for Governor of
Illinois in the November 2010 general election. Counsel
stated that the demands of the run “completely over-
whelmed my capacity to complete all tasks before me,”
and that between the November 2, 2010 election and the
filing of the motion on November 16, he was “focused
on catching up on numerous cases that had to be con-
tinued, put on hold or otherwise delayed.” He stated
that his difficulties were “compounded by the fact that
I have been working without a legal assistant of any
kind.” Though counsel recognized that his candidacy
was voluntary, he argued that it “constitutes an im-
portant civic function.”
Before the defendants objected, the district court
granted Sherman’s motion on November 17, 2010 (with-
out explanation), and extended the time to file a notice
of appeal to November 19, 2010. On that date, Sherman
filed a notice of appeal of the court’s August 16 and
October 14 orders. On November 30, 2010, the de-
fendants filed a motion for reconsideration of the
district court’s November 17 order granting the exten-
sion. The defendants argued that Sherman was required
to show “excusable neglect,” rather than simply “good
cause,” and that counsel’s explanation failed to make a
showing of excusable neglect. On December 2, 2010, the
district court denied the defendants’ motion, stating
that “[t]he Court has reviewed the Motion, the Memoran-
dum and the Text Order entered November 17, 2010,
and finds no manifest errors of law or fact . . . .” On
December 17, 2010, the defendants filed a notice of
appeal of the court’s November 17 and December 2
6 Nos. 10-3722 & 10-3925
orders. We consolidated Sherman’s appeal with
the defendants’, and denied defendants’ motion to
dismiss Sherman’s appeal for lack of jurisdiction. The
defendants now reassert their challenge to this court’s
jurisdiction.
II. ANALYSIS
“A timely notice of appeal is a prerequisite to ap-
pellate review.” McCarty v. Astrue, 528 F.3d 541, 544
(7th Cir. 2008) (citations omitted). In a civil suit in which
the United States or its officer or agency is not a party,
a notice of appeal must be filed within thirty days from
the entry of judgment. 28 U.S.C. § 2107(a); Fed. R. App.
P. 4(a)(1)(A). Under Federal Rule of Appellate Pro-
cedure 4(a)(5), the district court may extend the time to
file notice of appeal if a party so moves no later than
thirty days after the original deadline for the filing
of notice of appeal, and that party shows “excusable
neglect or good cause.” As the defendants point out,
we had previously stated that “[t]he more lenient
standard of good cause” applied only to “requests for
extensions of time made prior to the expiration of the
thirty-day appeal period.” Parke-Chapley Const. Co. v.
Cherrington, 865 F.2d 907, 910 (7th Cir. 1989); see also
Lorenzen v. Emp. Ret. Plan, 896 F.2d 228, 231 (7th Cir.
1990). But the 2002 amendments to the Rule clarified
that the distinction is no longer a temporal one. The
advisory committee notes to the 2002 amendments
state that Rule 4(a)(5)(A)(ii) was amended to correct the
misunderstanding of the Rule that separate standards
applied based on when the motion was filed. The note
Nos. 10-3722 & 10-3925 7
states that “[a] motion for an extension filed prior to
the expiration of the original deadline may be granted
if the movant shows either excusable neglect or good
cause. Likewise, a motion . . . filed during the 30 days
following the expiration of the original deadline may be
granted if the movant shows either excusable neglect
or good cause.” (Emphasis added). The advisory com-
mittee note goes on to state that “[t]he good cause
and excusable neglect standards have ‘different do-
mains.’ ” Id. (quoting Lorenzen, 896 F.2d at 232). The
relevant question is one of fault, as “[t]he excusable
neglect standard applies in situations in which there
is fault; in such situations, the need for extension is
usually occasioned by something within the control
of the movant.” Id. On the other hand, the good cause
standard “applies in situations in which there is no
fault—excusable or otherwise.” Id. So, for example, if
“the Postal Service fails to deliver a notice of appeal,
a movant might have good cause” and can still seek
an extension under that standard during the thirty days
following the expiration of the original deadline. Id. In
light of the 2002 amendment to Rule 4(a)(5)(A)(ii),
motions filed after the original appeal period expires are
no longer subject solely to the excusable neglect standard.
This, however, does not mean that the “good cause”
standard applies in this case, given that Sherman’s
counsel concedes that the events leading to the late
filing were in his control, and were his “fault,” (albeit
“fault” that counsel seeks to have excused). We there-
fore consider whether Sherman showed excusable neglect.
8 Nos. 10-3722 & 10-3925
A district court’s determination that excusable neglect
is established is reviewed for an abuse of discretion.
McCarty, 528 F.3d at 544 (citing Garwood Packaging, Inc. v.
Allen & Co., Inc., 378 F.3d 698, 700 (7th Cir. 2004)). It is
not clear in this case how exactly the district court exer-
cised its discretion given a lack of specific reasons for
granting Sherman’s motion for an extension of time.
“Ordinarily, when a district judge fails to explain a
nonobvious exercise of his discretion, the proper remedy
is to remand the case for him to do so.” United States v.
Guy, 140 F.3d 735, 736 (7th Cir. 1998). But where “the
absence of excuse is so total . . . that it would be an
abuse of discretion for the judge to extend the time
for appeal,” the appeal must be dismissed as untimely.
Id. Such is the case here.
“The standard for reviewing whether neglect is ‘excus-
able’ is an equitable one, taking into consideration
relevant circumstances, including (1) the danger of preju-
dice to the non-moving party; (2) the length of the
delay and its impact on judicial proceedings; (3) the
reason for the delay (i.e., whether it was within the rea-
sonable control of the movant); and (4) whether the
movant acted in good faith.” McCarty, 528 F.3d at 544
(citing Pioneer Inv. Serv. Co. v. Brunswick Assocs., 507 U.S.
380, 395 (1993); Marquez v. Mineta, 424 F.3d 539, 541
(7th Cir. 2005)). To be fair, the length of delay here
(four days) was minimal, and there is no real prejudice
alleged. But we have “repeatedly noted that there is
unlikely to ever be harm in the Rule 4(a)(5) setting,
because the neglectful applicant has a limited time
period to request relief—in this case, sixty days—hence
Nos. 10-3722 & 10-3925 9
there will never be a terribly long delay.” Id. at 545 (citing
Marquez, 424 F.3d at 541-42; Prizevoits v. Indiana Bell
Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996)).
Generally, a simple miscalculation of time is not a
sufficient reason to extend the time allowed to file a
notice of appeal. McCarty, 528 F.3d at 544 (gathering
cases). But see United States v. Brown, 133 F.3d 993, 997
(7th Cir. 1998) (finding excusable neglect where a Wis-
consin attorney who practiced exclusively in state court
miscalculated a filing deadline in his first federal case).
In Lorenzen v. Employees Retirement Plan, 896 F.2d 228(7th Cir. 1990), we found that the district court did
not abuse its discretion in granting the defendants
an extension to file a notice of appeal where the
plaintiff filed a confusing post-judgment motion, pre-
sumably under Federal Rule of Civil Procedure 59(e),
after the initial notice of appeal was filed. Before the
1993 amendments to Rule 4(a)(4), a litigant had to re-file
a notice of appeal within thirty days of an order
disposing of a Rule 59 motion, which the defendant
in Lorenzen did not do. Id. at 231 (citing Fed. R. App.
P. 4(a)(4)(1990)). We did note that “[i]f the mistake is
slight, nonprejudicial, easily understandable, could
happen to the best of us, etc., then dismissal of the
appeal, with prejudice, may be an excessive sanction.”
Id. at 232. But in finding no abuse of discretion, we
relied on the fact that the defendant’s error “was a nat-
ural one” given the confusing nature of plaintiff’s post-
judgment motion, for if the plaintiff’s motion was
not properly under Rule 59, the defendant would not
have had to re-file the notice of appeal. Id. at 232. We
10 Nos. 10-3722 & 10-3925
also relied on the fact that the error was induced by
the conduct of the party opposing the extension. Id. at
233. In doing so, we approached the case as one of a
“plausible misconstruction[ ], but not mere ignorance,
of the law or rules,” or “an attorney’s good faith misin-
terpretation of a procedural rule.” Id. at 232 (quoting
Redfield v. Continental Casualty Corp., 818 F.2d 596, 602
(7th Cir. 1987); Cherrington, 865 F.2d at 911-12). That is
not the case before us. Sherman’s counsel has indicated
no action on the part of the opposing party that
induced his missing the deadline to file the notice of
appeal, and no facts or reasonable reading of the rule
that render the error a “natural” one. He simply asserts
that he was overloaded with obligations and working
without an assistant, and so Lorenzen is not instructive.
We have also held “that the heavy work load of counsel
that caused him to overlook the time for appeal does
not constitute excusable neglect.” Files v. City of Rock-
ford, 440 F.2d 811, 815 (7th Cir. 1971). But in Pearson v.
Gatto, 933 F.2d 521, 524-25 (7th Cir. 1991), we found
that the district court did not abuse its discretion in
granting an extension of time, where the reason for
the delay was counsel’s overcommitment to court-ap-
pointed cases which caused him to miss the deadline.
The district court found the delay “quite understandable
and altogether credible,” given the large number of
cases to which the court had appointed counsel. We
acknowledged that the excusable neglect standard was
a narrow one and that a heavy workload rarely met
that standard, but found that the “good faith behavior
of counsel has . . . always been an important factor sup-
Nos. 10-3722 & 10-3925 11
porting a finding of excusable neglect.” Id. at 525 (quoting
Redfield, 818 F.2d at 601). We noted that “[c]ounsel’s
overcommitment was due to what can fairly be de-
scribed as an excess of public service and altruism,” and
that counsel had engaged in “extensive pro bono activ-
ity.” Id. at 525. Again, this is not the case before us.
One’s choice to run for public office may be based on
a variety of considerations, and altruism could be far
down the list. Counsel’s own choice to run for governor,
though perhaps commendable, was entirely voluntary,
and the election was approximately two weeks before
the deadline for filing the notice of appeal. Many prac-
ticing attorneys run for office or submit themselves for
consideration for positions on non-profit boards or bar
associations, but cannot do so to the detriment of their
clients. Under these facts, we find that the district
court abused its discretion in granting the extension.
We find the notice of appeal to be untimely, and we
therefore lack jurisdiction over Sherman’s appeal.
III. CONCLUSION
For the reasons set forth above, the appeal is D ISMISSED
for lack of jurisdiction, and the defendants-appellees’
cross-appeal is D ISMISSED as moot.
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