Zuniga v. Commissioner of Social Security
Filing
39
OPINION AND ORDER denying 34 Motion for Appeal. Signed by Judge Holly A Brady on 11/26/2019. (Copy mailed to pro se party) (jat)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KHRISTINA ZUNIGA,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of the Social
Security Administration1,
Defendant.
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Cause No. 2:17-CV-251-HAB
OPINION AND ORDER
On July 2, 2019, the Court entered an Opinion and Order (ECF No. 32) affirming the denial
of Plaintiff’s application for supplemental security income. Nearly four months later, Plaintiff filed
a Motion of Appeal (ECF No. 34), which the Court deemed a belated notice of appeal from the
July 2, 2019, Opinion and Order. Rather than deny the Motion as untimely, the Court ordered
Plaintiff to supplement her Motion to “address[] the relevant considerations” for determining
whether Plaintiff had established excusable neglect for her belated filing. (ECF No. 35) Having
reviewed Plaintiff’s supplement (ECF No. 37) and the Defendant’s Response (ECF No. 38), the
Court concludes that Plaintiff’s Motion must be denied.
It is undisputed that Plaintiff failed to comply with both the notice of appeal deadline set
forth in Appellate Rule 4(a)(1)(B) and the extended deadline in Rule 4(a)(5)(A). However, “Rule
4(a) is not jurisdictional, but it is a mandatory claim-processing rule which means that it must be
enforced if it is properly invoked.” Vergara v. City of Chi., 939 F.3d 882, 885 (7th Cir. 2019)
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Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party
pursuant to Fed. R. Civ. P. 25(d). See also Section 205(g) of the Social Security Act, 42 USC § 405(g)
(action survives regardless of any change in the person occupying the office of Commissioner of Social
Security).
(citations omitted) (original emphasis). Therefore, Plaintiff must establish excusable neglect to
proceed with her appeal, a standard for which “few circumstances will ordinarily qualify.” Satkar
Hosp., Inc. v. Fox Tele. Holdings, 767 F.3d 701, 706 (7th Cir. 2014). The standard “refers to the
missing of a deadline as a result of such things as misrepresentations by judicial officers, lost mail,
and plausible misinterpretations of ambiguous rules.” Id. (quoting Prizevoits v. Ind. Bell Tel. Co.,
76 F.3d 132, 133–34 (7th Cir. 1996)). In determining whether a movant has established excusable
neglect, a district court must consider:
relevant circumstances, including (1) the danger of prejudice 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 reasonable control of the
movant); and (4) whether the movant acted in good faith.
Id. (citing Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012)). Most important among these
factors is the reason for the delay. Id. at 707.
As Defendant rightly notes, Plaintiff’s supplement provides the Court with little more
information than her original Motion. The Court still has no information regarding “when Plaintiff
became aware of this Court’s Opinion and Order, the duration of her homelessness, or any efforts
she has taken to pursue her appeal,” ECF No. 35 at 3, all information that the Court expressly
requested in its October 31, 2019, Order.
What the Court can gather from Plaintiff’s filings is that Plaintiff was aware of the appeal
deadline in this case. While Plaintiff blames her life circumstances for her failure to comply with
that deadline, Plaintiff was able to obtain a favorable ruling in a separate Social Security
application and hire an attorney to address a past eviction during the relevant time period. This
indicates to the Court that Plaintiff simply allocated her limited resources to matters she deemed
more pressing. Plaintiff’s allocation may or may not have been reasonable, but it does not
constitute excusable neglect for missing her appeal deadline in this case.
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Accordingly, Plaintiff’s Motion for Appeal is DENIED.
SO ORDERED on November 26, 2019.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT
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