Appellant Filed Notice of Appeal with Wrong Tribunal. Why Didn’t the Federal Circuit Let It Slide?

73
fizkes | Shutterstock

The ASBCA denied a contractor’s appeal. The contractor attempted to appeal the denial to the Federal Circuit, but the contractor only filed a timely notice of appeal with ASBCA. The Federal Circuit held that it lacked jurisdiction over the appeal. The contractor’s mistake was due to a failure to read the Federal Circuit’s Rules of Practice. While the Federal Rules of Appellate Procedure permit a circuit court to consider a mistakenly filed notice of appeal, the Federal Circuit held those rules apply to appeals mistakenly filed with an Article III court, not, as here, to appeals mistakenly filed with an Article I tribunal.

Carmazzi Global Solutions, Inv. v. Commission of Social Security, Fed. Cir. 2021-2035

Background

Carmazzi Global had contracts with the Social Security Administration (SSA). The SSA terminated the contracts for cause. Carmazzi appealed to the ASBCA. The board granted the SSA summary judgment. Carmazzi moved to vacate the judgment, but the board denied the motion. One hundred twenty days after the denial, Carmazzi filed a notice of appeal with the ASBA. Two weeks later, Carmazzi filed a notice of appeal with the Federal Circuit.

Holding

The Federal Circuit dismissed the appeal for lack of jurisdiction. A contractor must appeal a board decision to the Federal Circuit within 120 days. The 120 day deadline is jurisdictional. Here, Carmazzi filed a notice of appeal with board on the 120th day. The company didn’t file a notice of appeal with the Federal Circuit until 134 days after the board’s final judgment.

Carmazzi argued this was an honest mistake due to its unfamiliarity with the Federal Circuit’s Rules of Practice The court didn’t think this failure to read the court’s rules was an excuse.

Carmazzi urged the court to apply Federal Rule of Appellate Procedure 4, which provides that a notice of appeal mistakenly filed in the court of appeals is considered filed in the district court. But the court didn’t think this rule applied. First, Rule 4 governs a situation where the appellant is supposed to file a notice of appeal with a lower tribunal but files it with the higher tribunal. Here, Carmazzi was supposed to file in a higher tribunal but filed the notice in a lower tribunal.

Moreover, the court noted, Rule 4 applies to Article III courts. The rule does not contemplate what happened in this case—i.e., the appellant was supposed to file a notice of appeal with an Article III court but instead filed with an Article I tribunal.

Carmazzi is represented by Patrick Bernard Kernan and Timothy Turner of Whitcomb Selinsky, PC. The government is represented by Borislaw Kushner, Brian M. Boynton, an Patricia M. McCarthy of the Department of Justice as well as Brandon Dellaglio, Dorothy M. Guy, Tal Kedem, and Alice Somers of the Social Security Administration.

–Case summary by Craig LaChance, Senior Editor

Federal Circuit - Carmazzi