dissenting:

I respectfully dissent.

In my view, the majority makes two mistakes. First, it takes too constricted a view of the Supreme Court’s decision in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 1 and second, it accords insufficient deference to the district court’s exercise of discretion.

I certainly do not quarrel with the majority’s exasperation at an experienced lawyer from a large and well-staffed firm carelessly delegating the reading of appellate rules to a non-lawyer and failing adequately to supervise. And I note with approval that the majority indicates this was a “large law firm,” distinguishing the negligence here from that of a solo practitioner, who “would not even be in a position to attempt this kind of delegation.” 2 The majority thus leaves room, in a solo practitioner’s case, for the court to consider whether the decision in the case at bar should be distinguished. A lawyer in a large firm who was out of town could presumably have some young associate work as late into the night as necessary to discover, read, and follow Federal Rule of Appellate Procedure 4, but a solo would be unable to call upon such useful help.

My dissent is directed to the proposition that compels the majority’s conclusion: “Not knowing the law governing one’s practice is different from mere neglect, and it cannot be classed as excusable neglect,” 3 especially when compounded by delegation of that knowledge to a non-lawyer. This holding is erroneous. Ignorance of the law and negligent delegation can indeed be classed as excusable neglect. And ignorance of the law plus negligent delegation — not knowing that the deadline for filing a notice of appeal in a civil case where the government is not a party is 30 days, not 60, and relying on a calendar clerk’s reading of Federal Rule of Appellate Procedure 4 — is the precise error that the Andrews’ lawyer made.

The majority fleshes out this concept of ignorance of the law, qualifying it with its concern that the lawyer delegated professional tasks to a non-lawyer to perform. Delegation may be negligent, but negligence, under Pioneer, can be “excusable neglect.” There is no difference in principle between negligent mistake of law and negligent supervision. All professionals delegate. Medical doctors delegate many traditional duties to physician’s assistants and nurses. Lawyers and judges delegate to associates, law clerks, interns, paralegals, calendar clerks, and secretaries. Lay calendar clerks commonly set trial dates for district judges, who delegate to them to avoid Speedy Trial Act errors. Of course delegation can be excessive, but what matters is the degree of supervision.

The Supreme Court in Pioneer expressly approved of the principle that “ignorance of the rules” may sometimes be “ex *953 cusable neglect.” 4 The Court rejected the view taken by some courts that “excusable neglect” had to have some cause beyond the reasonable control of the attorney, and held instead that “neglect” included “faultless omissions to act and, more commonly, omissions caused by carelessness.” 5 This definition encompasses missing a filing deadline because of “negligence.” Thus, “Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” 6 Because the Supreme Court has stated that “ignorance of the rules” 7 may constitute excusable neglect, it is not permissible for us to hold that “it cannot be classed as excusable neglect.” 8

To be sure, ignorance is not a free pass. The Court says that various kinds of carelessness including “ignorance of the rules ... do not usually constitute ‘excusable neglect.’ ” 9 Thus in Speiser, Krause & Ma-dole P.C. v. Ortiz we noted, and affirmed a district court’s refusal to depart from, “the general rule that a mistake of law does not constitute excusable neglect.” 10 However, the right way, under Pioneer, to decide cases involving ignorance of federal rules is with an “elastic concept” equitable in nature, not with a per se rule such as the one on which the majority relies. 11 We are not free to impose a per se rule. 12

Under Pioneer, the determination of whether a careless omission, including one resulting from a lawyer’s ignorance of the rules, is “ ‘excusable’ ... is at bottom an equitable one, taking account of all rele *954 vant circumstances surrounding the party’s omission.” 13 Among these are “the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” 14

The majority opinion does not discuss these equitable factors that Pioneer says to take into account. The district court discussed each of them explicitly and carefully. For the first, second, and fourth factors, it found that (1) “[bjesides the prejudice that will always exist when a party does not receive the windfall benefit of an opponent’s missed deadline, plaintiffs will not be significantly prejudiced by defendants’ short delay in filing the notice of appeal” 15 ; (2) “the delay in filing is only a few weeks, which will not prejudice the efficient administration of justice”; 16 and (4) “[pjlaintiffs do not contend that defense counsel flouted the deadline or otherwise acted in anything other than good faith.” 17 In a page and a half of detailed analysis on the third factor, the district court concluded that although “[s]ome Ninth Circuit cases narrowly construe ‘excusable neglect’ even after the Pioneer decision. 18 ... the prevailing view — especially regarding Rule 4 — is that attorney mistakes made in good faith with no prejudice to the other party are excusable neglect.” 19

The district court got the law right. As it noted, a number of our opinions are consistent with the view I now urge here, and inconsistent with the position taken by the majority. The majority discusses and distinguishes Marx v. Loral Corp., 20 Briones v. Riviera Hotel & Casino, 21 and Bateman v. United States Postal Service. 22 To its discussion, I add this critical — and dispositive — insight from Marx: “Although Pioneer Inv. arose in the context of the Bankruptcy Rules, its rationale would seem to apply equally to the Federal Rules of Appellate Procedure.” 23 Applying the rationale of Pioneer to Rule 4(a)(5), Marx concluded that “[t]he district court’s analysis of the Pioneer Inv. factors in this case, although considerably lenient to the plaintiffs, was not a clear error of judgment.” 24 Just as we directed in Bateman, the district court properly “eonduct[ed] the equitable analysis laid out in Pioneer and *955 Briones.” 25

Contrary to the majority’s assertion that no Ninth Circuit law has changed Kyle (“Neither Marx nor Bateman nor any other case cited to us has changed Kyle’s rule.” 26 ), the rules have changed, and they have changed in the specific context of Federal Rule of Appellate Procedure 4(a)(5). Marx explicitly adopted and applied the changed rules of Pioneer to our analysis of excusable neglect in the context of Federal Rule of Appellate Procedure 4(a)(5). 27

Kyle v. Campbell Soup Co., the case on which the majority rests its decision, cannot do the work the majority makes it do. 28 Kyle reads Pioneer narrowly, too narrowly in my present view, and too narrowly to be reconciled with our subsequent, controlling decision in Marx. When Kyle was decided, we had not yet extended the rationale of Pioneer from its context of ambiguities in bankruptcy proceedings to unambiguous Federal Rule of Appellate Procedure 4(a)(5), so its failure to adopt the rationale of Pioneer was arguably appropriate. Now that we have, post-Kyle, explicitly adopted and applied the rationale of Pioneer to Federal Rule of Appellate Procedure 4(a)(5), we cannot lay Pioneer aside.

Kyle is also distinguishable in another way. Kyle speaks to a late motion for attorneys fees, which does not go to the merits of the original litigation. Attorney fees are ancillary, and district court judges may legitimately take a less liberal approach in deciding whether ignorance of the rules constitutes excusable neglect where disposition of the case on the merits will not be affected. 29 District courts commonly grant relief based on the view that it’s undesirable to turn a dispute on the merits into a legal malpractice case. The decision today will prevent resolution of the appeal on the merits.

Federal Rule of Civil Procedure 1 says to construe the rules to get a “just” decision on the merits. 30 This case is an appeal on the merits of a seven-figure judgment. It may be “speedy” and “inexpensive” (at least for the court system) to prohibit an appeal from going forward, but a district court must serve all three aspects of a proper resolution — that it be just, speedy, and inexpensive. Justice is better attained by considering, and where appropriate reconsidering, the merits. Collateral matters such as attorneys fees do not go to the merits, the “determination of [the] action.” 31

The majority’s second error is its failure to review deferentially the district court’s exercise of discretion. The majority says the district court abused its discretion because it “made a mistake of law” in treating the lawyer’s ignorance of the rule setting the time for an appeal as excusable *956 neglect. 32 The majority thus substitutes its own judgment for that of the lower court. Avoiding the standard of review, it has mistakenly characterized the district court’s permissible reading of Pioneer as an erroneous interpretation of the law.

The Federal Rules of Appellate Procedure assign to the district court the authority to decide in the first instance whether neglect is excusable. 33 We review for abuse of discretion district court orders granting extensions nunc pro tunc to file notices of appeal. 34 “Under the abuse of discretion standard, however, this court cannot reverse the district court’s ruling unless it has a definite and firm conviction that the lower court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” 35 This standard of review is no “mere formalistic incantation.” 36 In Speiser, Krause, we explained this standard as meaning that “within substantial margins the district court could be upheld had it determined the issue one way or the other.” 37 And in that case, in which we affirmed the district court’s denial of relief regarding an attorney’s failure to “bother reading [Federal Rule of Civil Procedure] 81(c) carefully enough to understand it,” we noted that “the district court would not necessarily have erred” had it granted relief. 38 Under Speiser, Krause, we cannot, as the majority does, substitute our judgment for that of the district court. Nor can we avoid analyzing the equitable factors, as Pioneer and Marx require, by treating the question as one of law.

It is the district court’s prerogative, not ours, to decide to grant or deny a motion for an expansion of time to file a notice of appeal. In this case there was no bad faith, no mischievous tactic, no prejudice to Pincay except the potential loss of the “windfall benefit” of the Andrews’ missed deadline. 39 Simple ignorance of the law, even combined with negligent delegation, may constitute excusable neglect, and the district court did not make “a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” 40

Good lawyers commonly give their adversaries stipulations relieving them of inadvertent errors not going to the merits. The rigid per se rule the majority creates today will make it difficult for them to do so. Our court thereby damages the mutual civility and accommodation that characterizes the practice of law at its best. This unnecessary rule will be career-destroying for decent lawyers who make inadvertent errors. We should affirm the district court’s careful and fair exercise of its discretion.

. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489 , 123 L.Ed.2d 74 (1993).

. Maj. Op. at 948, 951.

. Maj. Op. at 951.

. Pioneer, 507 U.S. at 392 , 113 S.Ct. 1489 .

. Id. at 388 , 113 S.Ct. 1489 .

. Id. See Fed. R.App. P. 4(a)(5) advisory committee's note (2002 Amendments) (“The good cause and excusable neglect standards have 'different domains.' Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232 (7th Cir.1990). They are not interchangeable, and one is not inclusive of the other. The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant.”).

. Id. at 391-92, 113 S.Ct. 1489 . The Pioneer citation is drawn from this discussion:

507 U.S. at 391-92 (citations omitted).

. Maj. Op. at 951 (emphasis added).

. Pioneer, 507 U.S. at 392 , 113 S.Ct. 1489 .

. Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884, 886 (9th Cir.2001) (affirming under the abuse-of-discretion standard a district court's denial of a motion to set aside a default and enlarge the time to answer).

. Pioneer, 507 U.S. at 392 , 113 S.Ct. 1489 (citing 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 479 (2d ed.1987)).

. Id. at 392-95, 113 S.Ct. 1489 .

. Id. at 395 , 113 S.Ct. 1489 .

. Id.

. Pincay v. Andrews, No. CV 89-1445-WMB (C.D.Cal. Sept. 3, 2002) (order granting defendants' motion for extension of time to file notice of appeal).

. Id.

. Id.

. The district court cites to Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir.1994), and Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814 (9th Cir.1996).

. Pincay v. Andrews, No. CV 89-1445-WMB (C.D.Cal. Sept. 3, 2002) (order granting defendants' motion for extension of time to file notice of appeal).

. Marx v. Loral Corp., 87 F.3d 1049 (9th Cir.1996).

. Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997).

. Bateman v. United States Postal Serv., 231 F.3d 1220 (9th Cir.2000).

. Marx, 87 F.3d at 1054 (noting that Pioneer had recognized the division of authority among the courts of appeals "in their interpretations of excusable neglect as found in Rule 4(a)(5) of the Federal Rules of Appellate Procedure”) (internal quotation marks omitted) (emphasis added).

. Marx, 87 F.3d at 1054 .

. Bateman, 231 F.3d at 1224 .

. Maj. Op. at 951.

. Marx, 87 F.3d at 1054 .

. Kyle v. Campbell Soup Co., 28 F.3d 928, 931-32 (9th Cir.1994).

. Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814 , 825 (9th Cir.1996).

. See Martel v. County of Los Angeles, 56 F.3d 993, 998 (9th Cir.1995) (en banc) (Klein-feld, J., dissenting) (“Federal Rule of Civil Procedure 1 specifically states that the rules 'shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.’ Fed.R.Civ.P. 1. Sometimes serving one purpose tends to dis-serve another. For example, it is typical of bicycle engineering that one tries to build a lightweight, inexpensive, sturdy frame. But the better one serves any two goals, the worse one serves the third.”).

. Fed.R.Civ.P. 1.

. Maj. Op. at 17344.

. Fed. R.App. P. 4(a)(5)(A).

. Marx v. Loral Corp., 87 F.3d 1049 , 1054 (9th Cir.1996).

. Id.

. Speiser, Krause, 271 F.3d at 887 .

. Id. at 886, 887 .

. Id.

. Pincay v. Andrews, No. CV 89-1445-WMB (C.D.Cal. Sept. 3, 2002) (order granting defendants' motion for extension of time to file notice of appeal).

. Marx, 87 F.3d at 1054 .