Cleek Aviation v. United States

22 Cl. Ct. 260, 1991 U.S. Claims LEXIS 23, 1991 WL 3263
CourtUnited States Court of Claims
DecidedJanuary 15, 1991
DocketNo. 426-88C
StatusPublished
Cited by4 cases

This text of 22 Cl. Ct. 260 (Cleek Aviation v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cleek Aviation v. United States, 22 Cl. Ct. 260, 1991 U.S. Claims LEXIS 23, 1991 WL 3263 (cc 1991).

Opinion

OPINION

MARGOLIS, Judge.

This case is before the court on the plaintiff’s Motion to Correct Date of Filing. Plaintiff’s notice of appeal reached this court one day after the filing deadline. Plaintiff, Cleek Aviation (“Cleek”), argues that under RUSCC 3(b)(2)(C) this court should grant plaintiff’s motion to correct the records showing September 11, 1990 as the date of filing for plaintiff’s notice of appeal now dated as filed on September 12, 1990. Defendant, the United States, ar[261]*261gues that RUSCC 3(b)(2)(C) is inapplicable and that plaintiff fails to demonstrate excusable neglect for its failure to file a timely notice of appeal. After a careful review of the entire record and relevant case law, this court concludes that RUSCC 3(b)(2)(C) is inapplicable, the facts do not constitute excusable neglect, and therefore the plaintiff’s motion is denied.

FACTS

On July 13, 1990, this court denied plaintiff’s motion to extend the time for filing a notice of appeal. Cleek Aviation v. United States, 20 Cl.Ct. 766 (1990). Under Federal Rule of Appellate Procedure 4(a)(1), plaintiff was permitted 60 days in which to file a notice of appeal of this decision. The deadline for filing a notice of appeal was September 11, 1990. The clerk of this court received the notice on September 12, 1990, one day after the deadline for filing such notice had passed.

In support of its motion, Cleek argues that the requirements of RUSCC 3(b)(2)(C) were satisfied. Cleek states that the notice of appeal was mailed on September 5, 1990 from Oklahoma City, Oklahoma by certified mail and was properly addressed to the clerk of this court. Cleek maintains that the notice of appeal was deposited in the mail sufficiently in advance of the last date allowed for the filing to provide for receipt by the clerk of this court on or before September 11, 1990 in the ordinary course of the mail. Cleek claims that it exercised no control over the mailing between deposit of the notice of appeal in the mail and its delivery.

Cleek asserts that plaintiff’s counsel prepared the notice of appeal five weeks before the deadline, but waited to file it because he was “awaiting additional instruction from the Client regarding further handling of the case.” Cleek also states that about one week before mailing the notice of appeal, Cleek’s counsel “contacted the U.S. Postal Service and was advised that in the normal course of business, mailing time on a certified letter, return receipt request, to Washington, D.C. from Oklahoma City, Oklahoma would be three (3), or at the most four (4) days.”

DISCUSSION

In claims in which the United States is a party, a notice of appeal must be filed within 60 days from the date of entry of the judgment. Fed.R.App.P. 4(a)(1). The requirement that notice of appeal be timely filed is “mandatory and jurisdictional.” Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (citations omitted), reh’g denied, 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978).

RUSCC 3(b)(2)(C) is Inapplicable

Rule 3(b) of the Rules of the United States Claims Court, entitled “Commencement of Action,” states in pertinent part:

(2) (A) A party plaintiff who contends that the effective date of his complaint should properly be a date earlier than that shown by the clerk’s records may seek a corrective order from the court by means of a motion.
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(C) In a situation where a complaint is stamped by the clerk after the last date allowed by a statute of limitations for the filing of the complaint, if the complaint was received by the clerk through the. mail, it may, by order of court, upon motion of the party plaintiff, be deemed to have been filed on the last day allowed ...

RUSCC 3(b)(2)(A), (b)(2)(C) (emphasis added). By its terms, RUSCC 3(b)(2)(C) applies only when a plaintiff has shown that a complaint should have arrived within the statutory period. See, e.g., LaFont v. United States, 17 Cl.Ct. 837, 841 (1989); Ross v. United States, 16 Cl.Ct. 378, 382 (1989). Cleek sought to file a notice of appeal, not a complaint. RUSCC 3(b)(2)(C) is inapplicable to this case.

No Excusable Neglect

Cleek alludes to other circumstances, perhaps indicating that it should be allowed an extension of time for filing a notice of appeal under Rule 4(a)(5) of the Federal Rules of Appellate Procedure. [262]*262Rule 4(a)(5) provides in part that “[a] district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).” Fed.R.App.P. 4(a)(5). Defendant argues that plaintiff’s motion, in effect a motion to extend the time for filing a notice of appeal, should not be granted because plaintiff fails to demonstrate excusable neglect.

After the filing period has ended, an extension of time for filing a notice of appeal will be granted only upon a showing of excusable neglect. Cleek, 20 Cl.Ct. at 767 n. 2, 767-68; see Ulmet v. United States, 21 Cl.Ct. 337, 342-43 (1990). Here, the time deadline for filing a notice of appeal expired on September 11, the notice of appeal was filed on September 12, and plaintiff’s counsel filed the Motion to Correct Date of Filing on September 20. Plaintiff’s motion comes after the deadline for filing a notice of appeal; therefore this court will grant an extension only upon a showing of excusable neglect.

The standard for establishing excusable neglect is strict. Cleek, 20 Cl.Ct. at 768 (citing Prestex, Inc. v. United States, 4 Cl.Ct. 14, 17, reconsideration denied, 4 Cl.Ct. 317, aff'd, 746 F.2d 1489 (Fed.Cir.1984) (Table)). Excusable neglect is limited to “unique and extraordinary circumstances,” and few situations will ordinarily qualify. Id. (citing Reinsurance Co. of America v. Administratia, 808 F.2d 1249, 1251-52 (7th Cir.1987); Diliberti v. United States, 4 Cl.Ct. 505, 506 (1984)). The party who moves for an extension of time bears the burden of proving excusable neglect. Id. What constitutes excusable neglect depends on the circumstances of each case. Id. at 768-69. The circumstances in this case do not constitute excusable neglect.

(a) Client’s Indecisiveness

Cleek attests that plaintiff’s counsel prepared the notice of appeal five weeks prior to the deadline, but delayed filing it because he was “awaiting additional instructions from the Client regarding further handling of the case.” Although Cleek does not state when it informed counsel of its decision to appeal, the notice of appeal was not mailed until September 5.

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Related

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33 Fed. Cl. 524 (Federal Claims, 1995)
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27 Fed. Cl. 202 (Federal Claims, 1992)
Howard v. United States
22 Cl. Ct. 630 (Court of Claims, 1991)

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22 Cl. Ct. 260, 1991 U.S. Claims LEXIS 23, 1991 WL 3263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleek-aviation-v-united-states-cc-1991.