                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15172         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 22, 2011
                                      ________________________        JOHN LEY
                                                                        CLERK
                                D.C. Docket No. 1:09-cv-00528-TCB

DAVID S. YANG,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                               versus


BULLOCK FINANCIAL GROUP, INC.,
d.b.a. Northwestern Mutual Life Insurance, Co.,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (July 22, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
       David S. Yang appeals the denial of his motion to extend time to file a

notice of appeal, which he made following the district court’s grant of summary

judgment to his former employer, Bullock Financial Group, Inc., in a

discrimination suit.1 On appeal, Yang argues that the district court abused its

discretion in finding that the circumstances surrounding his untimely filing did not

constitute “excusable neglect.” Specifically, he contends that the court “gave mere

lip service” to the excusable-neglect standard, and instead focused solely on the

merits of the underlying suit.

       The Federal Rules of Appellate Procedure provide that a party in a civil case

must file a notice of appeal “within 30 days after the judgment or order appealed

from is entered” in order to invoke the jurisdiction of the appellate court.

Fed.R.App.P. 4(a)(1)(A). The timely filing of a notice of appeal is a mandatory

prerequisite to the exercise of our appellate jurisdiction. Advanced Estimating

Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11th Cir. 1996). However, a district court

may extend the time to appeal if the party establishes “excusable neglect or good

cause” to justify the late filing. Fed.R.App.P. 4(a)(5)(A)(ii).




       1
               James R. Worrell, General Agent, Inc. was originally named as a defendant, but
was later dropped from the suit.

                                               2
        We review a district court’s decision regarding “excusable neglect” for an

abuse of discretion. Riney, 77 F.3d at 1325. “[A]n abuse of discretion occurs if

the judge fails to apply the proper legal standard or to follow proper procedures in

making the determination, or makes findings of fact that are clearly erroneous.”

Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir.

2006). When a district court applies an improper legal standard in evaluating a

claim of excusable neglect, we may choose to either remand the case for

application of the proper standard, or may apply the proper standard in the first

instance. See Riney, 77 F.3d at 1325 (remanding for reconsideration); Conn. State

Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1356-57 (11th Cir.

2009) (reversing the denial of a motion). Remanding for application of the correct

standard is often appropriate because the excusable-neglect standard allows the

district court room for the exercise of discretionary judgment. Riney, 77 F.3d at

1325.

        The Supreme Court established a four-factor test for determining whether a

party’s neglect of a deadline is excusable. Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993). We

subsequently held that the Pioneer factors apply in the context of motions to

extend time to appeal. Riney, 77 F.3d at 1323. Accordingly, courts determine

                                          3
whether an untimely appeal should be excused by assessing: (1) the risk of

prejudice to appellee; (2) the length of delay and its potential impact on the

proceedings; (3) the reason for the delay and whether the delay was within the

reasonable control of the moving party; and (4) whether the appellant acted in

good faith. Id. at 1325.

      The Pioneer standard is “at bottom an equitable one, taking account of all

relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at

395, 113 S. Ct. at 1498 (emphasis added). In applying the standard, “the Supreme

Court accorded primary importance to the absence of prejudice to the nonmoving

party and to the interest of efficient judicial administration.” Cheney v. Anchor

Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996). Since Pioneer, we

have assessed these factors in a number contexts. For example, in Cheney, we

considered whether to excuse, pursuant to Fed.R.Civ.P. 60(b), an untimely

demand for a trial that was filed six-days after the applicable deadline. We found

that the nonmovant was not prejudiced by the delay since it was not “lulled” by the

untimely filing. We further explained that, given the short delay, the district court

proceedings would not be adversely impacted by permitting the case to be tried.

Id.




                                          4
       With respect to Pioneer’s inquiry into the “reason for the delay,” we

recognize that untimely filing caused by inadvertence, mistake, or carelessness

may still constitute “excusable neglect.” See Riney, 77 F.3d at 1324. For

example, in Cheney, we suggested that an untimely filing was excusable because

the movant’s two attorneys failed to communicate with each other about who was

responsible for filing. See Cheney, 71 F.3d at 850. As to Pioneer’s good-faith

inquiry, we assess whether the movant intentionally sought advantage by untimely

filing. Id.

       In the instant case, the district court abused its discretion by failing to

properly consider the Pioneer factors. Rather than focusing on the merits of the

underlying action, the district court should have made specific findings regarding

the legitimacy of the reason for the delay and the risk of adverse consequences

resulting from the delay itself. Because the Pioneer standard affords significant

discretion in making such findings, we vacate the district court’s order and remand

the case for reconsideration.

       VACATED AND REMANDED.




                                            5
