Linda J. Parker v. JO ANNE B. BARNHART, Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 24, 2006
Decided February 23, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1417
LINDA J. PARKER,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States
District Court for the Western
District of Wisconsin
No. 04-C-281-S
John C. Shabaz,
Judge.
ORDER
Linda J. Parker appeals from the judgment of the district court affirming the
decision of the Commissioner of Social Security to deny her claim for disability
insurance benefits. Because Parker's notice of appeal to this court was not timely
filed, we are compelled to dismiss her appeal for lack of jurisdiction.
Parker is a 50-year-old woman who claims she suffers from a variety of
physical and mental impairments, including interstitial cystitis (IC), a bladder
impairment. The common symptoms of IC are pelvic pain and a frequent and
urgent need to urinate. Parker sought benefits in 2000, but her application was
denied initially and upon reconsideration. She then proceeded to a hearing before
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1417 Page 2
an administrative law judge. At the end of the hearing, the ALJ, applying the five-
step analysis, 20 C.F.R. § 404.1520(a)(4), found that Parker was not engaged in
substantial, gainful activity and that she suffered from severe IC. The ALJ also
found that none of Parker's impairments met or equaled a listed impairment in
Appendix 1, Subpart P, Regulation No. 4. And critical to her case, the ALJ
concluded that Parker retained the residual functional capacity to perform her past
work as a telephone order taker and, alternatively, could perform other jobs
available in Wisconsin where she lives, including positions as an office worker or
food preparation worker. Therefore, the ALJ ruled that Parker was not disabled
and denied her claim for benefits. Because the Appeals Council denied Parker's
request for review, the ALJ's decision became the final decision of the
Commissioner of Social Security.
The district court entered judgment affirming the Commissioner's decision on
December 15, 2004. Parker's notice of appeal was filed in this court on February 15,
2005. After we ordered Parker to explain why her appeal should not be dismissed
for lack of jurisdiction, Parker filed a motion in the district court to extend the time
to appeal. Parker's attorney claimed he misread the date stamp on the district
court's judgment (he thought that the date of entry read "December 16" when in fact
it read "December 15"). Consequently he thought the notice of appeal was due one
day after a December 15 entry date would require. The district court granted this
motion without explanation.
The government argues that the district court abused its discretion in
granting Parker's motion to extend the time to appeal. Although a district court
has discretion to extend the time to appeal up to 30 days after the entry of
judgment, Fed. R. App. P. 4(a)(5)(A), this discretion is not unlimited. A district
court may grant a motion to appeal late only on a showing of excusable neglect or
good cause by the appellant. Id.; Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir.
2005); United States v. Alvarez-Martinez, 286 F.3d 470, 472 (7th Cir. 2002).
The government points out, correctly, that miscalculation of the time in
which to appeal is not excusable neglect. Marquez, 424 F.3d at 541. However,
Parker is not arguing that her attorney miscalculated the time to appeal. Rather,
she is arguing that an unclear date stamp on the district court's judgment misled
her and her attorney into thinking the deadline was one day later than it was. The
issuance of this unclear date stamp might qualify as excusable neglect or good cause
for a one-day extension. But any possible confusion from the date stamp does not
explain Parker's filing on February 15.
Because the federal government is a party in this case, Parker had sixty days
from the district court's entry of judgment to file her notice to appeal. Fed. R. App.
P. 4(a)(1)(B). Sixty days after December 15 is February 13. However, since

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No. 05-1417 Page 3
February 13, 2005 was a Sunday, Parker had until Monday February 14, 2005 to
file her notice of appeal. Fed. R. App. P. 26(a)(3). Even if she and her attorney
reasonably believed the district court judgment was entered on December 16, this
excuse only gets her to February 14. It does not explain why Parker filed the notice
to appeal on February 15, one day beyond the date suggested by the alleged
confusion over the date stamp.
Since Parker did not offer to the district court any excuse for filing her notice
of appeal on February 15, and since the district court did not provide any other
rationale for its decision, the court abused its discretion in granting Parker's
motion. Marquez, 424 F.3d at 541 (district court abused its discretion in granting
leave to file notice of appeal one day late when appellant lacked an adequate excuse
for the late filing). Therefore, we must dismiss Parker's appeal as untimely filed.

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