Motion to strike a request for summary relief as untimely is denied, where the Civilian Board of Contract Appeals found no prejudice in accepting the filing one day after its deadline, and where the appellant was not represented by counsel and had no history of late filings.
Woolery Timber Management Inc. is represented by Charlotte Woolery, President. The government is represented by Elisabeth L. Esposito, Office of the General Counsel, Department of Agriculture.
The Department of Agriculture filed a motion to strike Woolery Timber Management Inc.’s motion for summary relief, or in the alternative, for leave to respond.
Previously, the board issued a schedule of proceedings to allow for expedited consideration of this case, including the imposition of a deadline for the submission of dispositive motions. USDA argued that under this order, any dispositive motions had to be filed by July 9, 2018. Because Woolery’s motion was filed after 4:30 p.m. EDT on July 9, 2018, the government argued the motion was untimely and should be stricken.
CBCA acknowledged that under its rules, a filing submitted by electronic mail will be considered to be filed on the working day that it was submitted, if it is received by 4:30 p.m. Eastern Time. That rule further provides that email filings received after that time will be considered to be filed on the next working day.
Accordingly, Woolery’s motion, which the board received through its email address at 8:54 p.m. EDT on July 9, 2018, is considered to have been filed on July 10, 2018. Because the board’s order required all dispositive motions to be filed by July 9, 2018, USDA correctly argued that Woolery’s motion was filed one day late.
However, notwithstanding this technicality, the board found no reason to strike. The board noted that Woolery is not being represented by an attorney, and a corporate representative is less likely than an attorney to be fully versed in the board’s rules and procedures. Further, the board explained that Woolery has no history of late or untimely filings, that a written discussion of the facts and evidence applicable to this case is of assistance to the board in an expedited appeal like this one, and that USDAS did not identify any realistic prejudice from Woolery’s four-and-a-half-hour delay in filing beyond the 4:30 p.m. EDT cutoff.
Accordingly, CBCA denied the motion to strike. The board also noted it would request a response from USDA to Woolery’s request for summary relief, should it desire one.
