Contractor’s Counsel Read the Wrong Rule in Calculating Time to Appeal. Federal Circuit Said That Didn’t Excuse Untimely Appeal

Contractor’s counsel relied on the wrong rule when calculating the time to file a notice of appeal from the COFC. The contractor sought to extend the time for filing an appeal, arguing excusable neglect. But the Federal Circuit was not in a forgiving mood. Misreading the rules does not amount to excusable neglect. 

United Communications, LLC v. United States, Fed. Cir., 2022-2074 

• COFC Proceedings – The contractor submitted a claim to the agency. The agency denied the claim. The contractor sued the agency for breach. The COFC dismissed for failure to state a claim 
• Untimely Appeal – The contractor filed a notice of appeal. But the notice was untimely. The contractor admitted that instead of relying on the rules of Federal Appellate Procedure that govern appeals from a court, its counsel had relied on the statute governing appeals to the Federal Circuit from the boards of contract appeals. 
• Motion for Extension – The contractor moved to extend the deadline for filing its appeal. The Federal Rules of Appellate Procedure allow a district court to extend the notice of appeal deadline where the moving party shows excusable neglect. The district denied the motion. The contractor appealed to the Federal Circuit. 
• Federal Circuit Affirms – The Federal Circuit held the district court did not abuse its discretion in denying the motion to extend. No unusual circumstances contributed to the delay. This was nothing more than a garden-variety miscalculation. Misreading of the rules governing appeals does not amount to excusable neglect. 

The contractor is represented by G. Scott Walters and Sarah Carpenter of Smith, Currie & Hancock LLP. The government is represented by Ebonie I. Branch, Brian M. Boynton, Deborah Ann Bynum, and Patricia M. McCarthy of the Department of Justice. 

–Case summary by Craig LaChance, Senior Editor 

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