Ulmet v. United States

21 Cl. Ct. 337, 1990 U.S. Claims LEXIS 336, 1990 WL 125141
United States Court of Claims·Decided August 24, 1990·No. No. 470-85C·Published·Cited by 2 cases

Opinion

ORDER

HORN, Judge.

Once again, this case is before the court, this time pursuant to “Plaintiff’s Motion For Extension Of Time To File Notice Of Appeal.” Plaintiff’s original notice of appeal was received by the Clerk’s Office of the United States Claims Court late, on May 10,1990. Due to the plaintiff’s failure to comply with the filing deadlines, as prescribed by Rule 4 of the Federal Rules of Appellate Procedure, the plaintiff’s papers were returned unfiled to the plaintiff’s counsel by the Clerk of the Court. Subsequently, on June 5, 1990, the plaintiff filed “Plaintiff’s Motion for Extension of Time to File Notice of Appeal,” which is the subject of this Order, and the Clerk of the United States Claims Court forwarded the motion to this Judge for review.

Plaintiff, in his motion, argues that his notice of appeal was not late; and, in the alternative, argues that if the notice was filed late, it was late as a result of excusable neglect within the meaning of Rule 4(a)(5) of the Federal Rules of Appellate Procedure. The plaintiff submits that this court should grant an extension of time in which the plaintiff can file a notice of appeal.

After a careful review of the record and the relevant case law, this court concludes that the facts do not support the plaintiff’s claim that his notice was not late, nor do the facts demonstrate excusable neglect on the part of plaintiff’s counsel. Therefore, in accordance with the applicable law and the relevant precedent, the plaintiff’s motion is, hereby, DENIED.

FACTS

After a protracted administrative history and extensive, prior litigation aimed at resolving the factual and legal issues in the case, on February 22, 1990, this court issued its most recent Order,1 which addressed the one remaining question in the case — computation of the actual net dollar value of LTC. Ulmet’s award, which was based on the formula determined by this court’s earlier decisions. On February 28, 1990, the Clerk of the Court entered the Judgment pursuant to the court’s February 22, 1990 Order.2

[339]*339On March 27, 1990, plaintiff filed “Plaintiff’s Petition For Fees and Costs” requesting costs and attorney’s fees, together with a “Bill of Costs.” On April 10, 1990, the defendant filed “Defendant’s Motion To Stay Proceedings.” The defendant’s motion requested “the Court to stay further proceedings and to suspend any obligation defendant has to respond to plaintiff’s March 23,1990 Petition for Fees and Costs, to and including 30 days after there is a final nonappealable judgment.”3 The defendant indicated that:

In the interests of judicial efficiency, however, we have not moved to dismiss the application, but merely move to stay our obligation to respond to and including 30 days after there is a final nonappealable judgment.
For the reason above, the Court should stay any obligation defendant has to respond, to and including 30 days after there is a final nonappealable judgment.

On April 10, 1990, the court scheduled a status conference for May 10,1990. In the Scheduling Order, the court indicated that the status conference was set pursuant to the “Defendant’s Motion To Stay Proceedings” and to allow “time for responsive filings permitted under the Rules of United States Claims Court____” In that brief Order, the court never gave either party any reason to believe that the requirements for filing timely notices of appeal, as provided for in the Federal Rules of Appellate Procedure, had in any way been altered or waived.

In response to the defendant’s motion to stay proceedings, on April 16, 1990, the plaintiff filed “Plaintiff’s Opposition to Motion to Stay Proceedings.” In that document, the plaintiff states his understanding of the defendant’s April 10, 1990, motion to stay proceedings as follows:

First, LTC. Ulmet would note for the Court that, although the title of the Army’s pleading is extremely broad and would imply that all proceedings should be stayed, all the Army is requesting is a stay of its obligation to respond to the petition for fees and costs filed by plaintiff on March 23, 1990. This will not, therefore, postpone the Army’s deadline for filing its notice of appeal, if any.
Second, as was previously discussed with Mr. Groat on behalf of the United States, LTC. Ulmet understands the position being taken by the Army with regard to 28 U.S.C. Sec. 2412. In the case of Wilson v. United States, No. 484-87C, (Cl.Ct.), the Court previously entered a similar stay on the obligation of the United States to respond to the fee petition filed in that action. Based upon these events, LTC. Ulmet understands why a stay has been sought, but he cannot consent to the entry of the stay.

Moreover, in his “Opposition to Defendant’s Motion to Stay Proceedings,” plaintiff’s counsel also explained to the court that the defendant’s stay request will not “postpone the Army’s deadline for filing it’s notice of appeal, if any.” Plaintiff’s counsel’s own representations to the court suggest that he understood that the defendant’s requested stay was limited to the defendant’s obligation to respond to the plaintiff’s petition for fees and costs.

On April 25,1990, the defendant filed the “Defendant’s Notice of Appeal,” which stated that the “defendant appeals the Court’s February 28, 1990 judgment to the United States Court of Appeals for the Federal Circuit.”

On April 26, 1990, the defendant filed “Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion To Stay Proceedings.” Referring to plaintiff’s application for attorney’s fees and costs, the defendant states:

While LTC Ulmet now opposes our motion for a stay, he fails to address our contention that, because the time has not run within which defendant may file a notice of appeal, see 28 U.S.C. § 2107; [340]*340RUSCC 72, his application is premature and, accordingly, we have no obligation to respond.

Furthermore, the defendant argues that:

As to LTC Ulmet’s application for costs, he elected to submit his bill of costs as a part of his application for attorney fees and expenses and we responded accordingly. We have no objection to the Court severing that bill of costs from his application for attorney fees, although we do not believe any purpose would be served in doing so. Because LTC Ulmet apparently claims costs and fees incurred in other civil actions a ruling by the Court upon whether the costs were incurred in other actions is necessarily[sic] prior to determining which costs may be allowable.

The defendant concludes that the court should stay the defendant’s obligation to respond to plaintiff’s application or, in the alternative, sever plaintiff’s bill of costs, allow the defendant to respond, and dismiss the remainder of the plaintiff’s application.

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Ulmet v. United States, 21 Cl. Ct. 337, 1990 U.S. Claims LEXIS 336, 1990 WL 125141 (cc 1990).

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