[00:00:00] Speaker 04:
And now, the business that we're all here for.

[00:00:04] Speaker 04:
Our first case today is 21-2035, Carmozzi Global Solutions versus the Commissioner of Social Security.

[00:00:14] Speaker 04:
Mr. Kernan?

[00:00:15] Speaker 01:
Yes, ma'am.

[00:00:16] Speaker 04:
Please proceed.

[00:00:18] Speaker 01:
May it please the Court?

[00:00:20] Speaker 01:
Your Honor, can you call and ask that this Court remedy an injustice that occurred procedurally in the Board of Contract Appeals on the two matters you have before you today?

[00:00:33] Speaker 01:
The facts in these two cases are interrelated and the facts are similar in the two cases.

[00:00:48] Speaker 01:
before the court today.

[00:00:49] Speaker 03:
But could you start with telling us what the separate issues are before you start talking about them?

[00:00:54] Speaker 01:
Yes, Your Honor.

[00:00:55] Speaker 01:
In 2022, 1231, the court granted a motion for summary judgment under Rule 56, under the standards of Rule 56.

[00:01:05] Speaker 01:
No discovery was

[00:01:06] Speaker 01:
propounded by the appellant in the matter because the case was in bankruptcy and the bankruptcy trustee and bankruptcy attorney had controlled the case as an asset of the bankruptcy so the appellant had no control of the case and no ability to conduct discovery.

[00:01:23] Speaker 01:
Despite conducting no discovery, ability to conduct no discovery in the matter, the board granted the motion for summer judgment in

[00:01:31] Speaker 03:
And that involves 15 out of 18 contracts that are in dispute here.

[00:01:37] Speaker 01:
Yes, Your Honor.

[00:01:38] Speaker 01:
The case involves verbatim video transcripts for Social Security Administration hearings.

[00:01:47] Speaker 01:
There's 18 different contracts.

[00:01:50] Speaker 01:
The first case, 2021-2035, deals with three representative cases that the board took up first as a representative of what might happen with all the 18 cases.

[00:02:02] Speaker 01:
In that matter, the case was docketed before the Board of Contract Appeals, and once the case began, the company went into bankruptcy.

[00:02:14] Speaker 01:
At that point, the bankruptcy trustee and bankruptcy attorney took over the case as an asset of the bankruptcy.

[00:02:23] Speaker 01:
The bankruptcy attorney had full control of the case, but did nothing with respect to discovery in the matter.

[00:02:31] Speaker 00:
The fact is, this appeal was filed late.

[00:02:35] Speaker 01:
You're referring to with this Court, Your Honor?

[00:02:38] Speaker 01:
Yes.

[00:02:38] Speaker 01:
Is our position that was filed timely within 120 days with respect to the jurisdictional issue.

[00:02:46] Speaker 01:
The appeal was filed with the

[00:02:49] Speaker 01:
with the board similar to... The statute says it has to be filed with this court.

[00:02:55] Speaker 01:
The statute itself, the procedural rules of this court indicate that it should be filed with this court, but jurisdictionally under the statute, it's opposition that it says 120 days, but it doesn't require specific filing with the Court of Appeals of the Federal Circuit.

[00:03:15] Speaker 04:
You have to agree that the statute in order to bestow jurisdiction upon us that says it has to be filed within 120 days, it has to be filed on us.

[00:03:23] Speaker 04:
I think I understand your argument to be that courts have generally allowed for sort of something akin to a transfer when a filing has been inadvertently filed in the wrong tribunal within what would be the correct time period, you treat it as though it were correctly filed.

[00:03:42] Speaker 04:
Is that inaccurate?

[00:03:43] Speaker 04:
a statement of what you're asking the court to consider?

[00:03:45] Speaker 01:
Yes, your honor.

[00:03:46] Speaker 01:
Similar to under the federal procedure for deed where the if it's filed with the appellate court.

[00:03:57] Speaker 01:
the appeal to the district court for processing.

[00:04:00] Speaker 03:
There's no adverse effects on the process in this case because... Yeah, but I mean the standard is what, excusable neglect for your having filed in the wrong place?

[00:04:10] Speaker 01:
Yes, Your Honor, excusable neglect or

[00:04:14] Speaker 01:
It actually was filed properly, just not within the proper procedures timeline, but not within the proper procedures.

[00:04:20] Speaker 03:
So what makes this case excusable?

[00:04:22] Speaker 03:
I mean, we have pro se filings, we have different various excuses.

[00:04:26] Speaker 03:
It doesn't seem to me that there's any excuse here other than somebody didn't read the rules accurately enough.

[00:04:33] Speaker 01:
Yes, Your Honor.

[00:04:34] Speaker 01:
Our position is that the

[00:04:37] Speaker 01:
that the filing was timely.

[00:04:40] Speaker 01:
The procedure for the Court of Appeals for the Federal Circuit isn't jurisdictional.

[00:04:46] Speaker 01:
So the Supreme Court decision in Foaman says that mere technicality should not be a basis for dismissing appeal and not agreeing on the merits.

[00:04:54] Speaker 04:
Respectfully, I don't know how you can argue that your filing was timely.

[00:04:59] Speaker 04:
Your filing is non-compliant.

[00:05:02] Speaker 04:
There's a difference between whether you timely filed and whether we are forced to dismiss because you untimely filed.

[00:05:08] Speaker 04:
What is your argument that you timely filed?

[00:05:11] Speaker 01:
We file within 120 days with the board as a time of filing, similar to as if you would file with the Court of Federal Claims.

[00:05:19] Speaker 04:
Yes, but Rule 4D only applies to filings in federal court.

[00:05:22] Speaker 04:
It applies to district court filings that will be treated as having been filed in the appellate courts.

[00:05:28] Speaker 01:
It's our position that's analogous to this situation where you have a filing that was done with a court that gives full notice to everyone that the appeal is filed.

[00:05:39] Speaker 01:
So there's no indication to the parties that there wasn't a proper appeal.

[00:05:43] Speaker 04:
Where did you actually file the case?

[00:05:45] Speaker 01:
With the Civilian Board of Contractors.

[00:05:47] Speaker 04:
Right, so you didn't file it in court.

[00:05:48] Speaker 04:
You didn't even file it in Article 3 Tribunal.

[00:05:51] Speaker 04:
Rule 4C deals with when one filing is in the wrong Article 3 court, treating it as though it was in the correct Article 3 court.

[00:06:01] Speaker 04:
You filed it with something that's not even in Article 3 court, correct?

[00:06:06] Speaker 00:
Yes, Your Honor.

[00:06:06] Speaker 04:
So would you have us extend this rule to just anything if you filed it at the post office?

[00:06:12] Speaker 04:
If you filed it with the VA, which is just an agency?

[00:06:15] Speaker 04:
Is your argument that any place it is filed within the federal government should count for jurisdictional purposes as an Article III court?

[00:06:24] Speaker 01:
No, our argument is that we file with the Board of Contract Appeals where all the parties were

[00:06:29] Speaker 04:
were notified that the... But it's not an Article III tribunal.

[00:06:33] Speaker 01:
But our argument would be that there's no stipulation that has to be filed with an Article III tribunal as long as we did file, everyone was notified within that 120 days that the appeal was filed.

[00:06:47] Speaker 01:
There's nothing in the rules that stipulates it has to be an Article III tribunal.

[00:06:51] Speaker 01:
It's not like filing with any office within the government.

[00:06:55] Speaker 01:
It was filed with Board of Contract Appeals where there's a requirement that all the parties are notified.

[00:06:59] Speaker 04:
There's a requirement that... But you could make the same... If you filed it with the VA, not even a court, just with the VA, but you also serve process on all the parties, couldn't you stand here and make the identical argument you're making now that failure to file in any court at all should be forgiven because the parties all receive notice?

[00:07:19] Speaker 01:
It was the court, applicable court for the...

[00:07:23] Speaker 01:
case on merits, number one.

[00:07:25] Speaker 01:
And number two, there is a requirement within the rules of that particular court that the parties be notified, unlike just filing anywhere in the serving process, you know, randomly.

[00:07:35] Speaker 01:
There is a specific rule within the court that the case was before that the parties be notified.

[00:07:40] Speaker 03:
Remind me how you found out that you had erred.

[00:07:43] Speaker 03:
I mean, did the board tell you?

[00:07:44] Speaker 01:
No, the Court of Appeals of the Federal Circuit notified prior counsel.

[00:07:50] Speaker 04:
With respect to the... Is there any explanation at all for why it wasn't filed in the right place?

[00:07:57] Speaker 01:
My understanding is that it was filed, you know, because fire cases have been filed that were appealed from the Court of Federal Claims.

[00:08:04] Speaker 01:
The process in the Court of Federal Claims is to file with the Court of Federal Claims first and not with the Court of Appeals from the Federal Circuit.

[00:08:10] Speaker 01:
Similarly, the belief was that to file with the Board and the same process would apply.

[00:08:20] Speaker 01:
With respect to the decision, the summary judge's decision below, our position is that it was manifest injustice to not allow the appellant to conduct discovery on this matter after the case was returned to the appellant when the bankruptcy trustee abandoned the case.

[00:08:44] Speaker 01:
At that point, no discovery had been conducted.

[00:08:47] Speaker 01:
There was no opposition to the motion for summary judgment.

[00:08:51] Speaker 01:
We asked for the court to vacate the decision to allow us to discovery and that request was denied in the two paragraphs.

[00:08:58] Speaker 03:
It was no, am I confusing this with another case?

[00:09:01] Speaker 03:
I thought because discovery started in February of 2019.

[00:09:05] Speaker 03:
I thought discovery did commence.

[00:09:07] Speaker 01:
Yeah, but there was no counsel for it, other than the bankruptcy trustee at that point, who had control of the case.

[00:09:13] Speaker 01:
Social Security Administration conducted discovery, but there was no discovery conducted by the appellant or the bankruptcy trustee.

[00:09:20] Speaker 03:
Well, weren't there four depositions taken from SSA, by SSA employees?

[00:09:26] Speaker 01:
By SSA, correct.

[00:09:27] Speaker 01:
Discovery was conducted by the government, but not by the appellant.

[00:09:30] Speaker 01:
The appellant was represented

[00:09:32] Speaker 01:
But why?

[00:09:33] Speaker 03:
And it was defended by, I'm sorry, it was defended by the trustee attorney, right?

[00:09:38] Speaker 01:
Yes, Your Honor.

[00:09:40] Speaker 01:
But he chose to conduct no discovery and then six days... But wait.

[00:09:44] Speaker 01:
Yes, Your Honor.

[00:09:45] Speaker 04:
You have a representative who represents your interests.

[00:09:47] Speaker 04:
Like in this case, you weren't actually the lawyer that made any of these mistakes, were you?

[00:09:52] Speaker 01:
No, Your Honor.

[00:09:53] Speaker 04:
Right.

[00:09:53] Speaker 04:
So you come in and represent them now and you're making the best arguments you can for their position.

[00:10:02] Speaker 04:
But why aren't they held responsible for the actions of the prior representative, in this case the trustee?

[00:10:09] Speaker 04:
The trustee could have engaged in discovery, correct?

[00:10:13] Speaker 01:
Yes, Your Honor.

[00:10:14] Speaker 04:
The trustee had the ability to do so, in fact possibly even the obligation to do so, correct?

[00:10:21] Speaker 01:
Yes, Your Honor.

[00:10:22] Speaker 04:
and that was their representative at the time in the litigation.

[00:10:26] Speaker 01:
Our position is that they weren't the appellant's representative.

[00:10:30] Speaker 01:
They basically had completely separate interests from the appellant and almost adverse.

[00:10:34] Speaker 01:
They're representing the bankruptcy trustee, and it's almost an ethical issue to say you represent a bankruptcy trustee and the appellant.

[00:10:41] Speaker 01:
Yes, he should have conducted discovery, but he wasn't represented.

[00:10:45] Speaker 03:
Is it your view that the appellant therefore did not have representation?

[00:10:49] Speaker 01:
until the time you came into the case?

[00:11:04] Speaker 01:
had, was in bankruptcy, had no ability to obtain an attorney, you know, so for the judge to say, you know, I'm just going to grant this motion, you're not going to have any opportunity to get an attorney, and then I'm going to stay a brief period of time for you to get an attorney and let him file a motion to conduct discovery, when our view was procedural and proper.

[00:11:26] Speaker 01:
Similarly, with the motion for summary judgment,

[00:11:28] Speaker 01:
that was filed on the appeal of 2022-1231.

[00:11:32] Speaker 01:
In that case, there was, again, no discovery conducted.

[00:11:38] Speaker 01:
The attorney was hired after the summary judgment motion was filed in December of 2021.

[00:11:45] Speaker 01:
The judge did not allow any discovery.

[00:11:49] Speaker 01:
He made factual findings on the summary judgment motion.

[00:11:52] Speaker 03:
Well, give us your best shot.

[00:11:54] Speaker 03:
I mean, you've got a bunch of arguments as to why summary judgment was not

[00:11:58] Speaker 03:
appropriate here.

[00:12:00] Speaker 03:
You know, we hear these cases all the time.

[00:12:02] Speaker 03:
I mean, you can always come up with some potential factual dispute, but it has to be important.

[00:12:07] Speaker 03:
And so give us, you raise a lot of different issues.

[00:12:13] Speaker 03:
Give us your best shot.

[00:12:14] Speaker 03:
Pick the top two.

[00:12:24] Speaker 01:
should be a deferential standard if no discovery has been conducted, rather than picking at the particular fact.

[00:12:31] Speaker 03:
Well, give us an example of in what respect, what discovery was necessary that had not been conducted.

[00:12:39] Speaker 01:
The initial counsel had indicated she was going to conduct 10 to 12 depositions, third-party depositions, third-party discovery.

[00:12:46] Speaker 01:
None of that was done because it was not allowed.

[00:12:48] Speaker 03:
Well, there were depositions of four SSA employees.

[00:12:51] Speaker 01:
Yeah, government deposition.

[00:12:53] Speaker 01:
But we're representing the appellant and we were not able to conduct any discovery.

[00:12:57] Speaker 01:
I mean, yeah, they were able to conduct discovery that further bolstered your summer judgment motion, but that left us, again, without any recourse other than trying to pick through the record and find additional facts.

[00:13:10] Speaker 04:
There's... So, look, I'm persuaded to some extent by your argument that the bankruptcy estate's conduct should not be imputed to your client because they really didn't represent your interest.

[00:13:24] Speaker 04:
But the problem is, as I understand the facts, the Bankruptcy Council informed your client on July 1st that it intended to abandon all of these appeals and was not going to pursue anything.

[00:13:37] Speaker 04:
You had from, unless I'm mistaken, July 1st until July 19th, and of course I don't mean you because you weren't involved in the case yet at that point, but your client was on notice from July 1st to July 19th, during which time they just undertook no actions, and they could have.

[00:13:55] Speaker 04:
So why isn't that behavior sufficient to have us sort of lose sympathy for the fact that they didn't have an obligation to conduct discovery, when in fact, from July 1st to July 19th, they knew the appeals were being abandoned by the bankruptcy trustee.

[00:14:13] Speaker 04:
and they did nothing to further their own case.

[00:14:17] Speaker 01:
Three points on that.

[00:14:18] Speaker 04:
Number one, at that point... Am I right about the facts, the timing and stuff?

[00:14:22] Speaker 04:
Do I have that right?

[00:14:23] Speaker 01:
Correct.

[00:14:24] Speaker 01:
Just to clarify a little bit of the facts for you.

[00:14:25] Speaker 01:
July 1st, an email was sent to the counsel that had already withdrawn from the case.

[00:14:30] Speaker 01:
It wasn't sent to the appellant saying, I know you're not represented by counsel.

[00:14:33] Speaker 01:
The bankruptcy trustee attorney sent an email to the counsel that had withdrawn in the case saying, we're returning this to you to deal with.

[00:14:42] Speaker 04:
The counsel had already formally withdrawn.

[00:14:45] Speaker 01:
It was withdrawn and it was approved.

[00:14:46] Speaker 01:
So there was no counsel in the case.

[00:14:49] Speaker 01:
It was improper to notify them as they no longer had turned their record for the appellant.

[00:14:54] Speaker 01:
The appellant was just copied on that message.

[00:14:57] Speaker 04:
Wait, but the appellant was copied on the message?

[00:14:59] Speaker 01:
Yeah, but it's a pro se individual.

[00:15:02] Speaker 01:
He doesn't know the ins and outs of litigation and whatnot.

[00:15:08] Speaker 01:
Third, he's in bankruptcy at that point.

[00:15:10] Speaker 01:
So three weeks or less than three weeks before a summary judgment motion is to be, responses to be filed.

[00:15:17] Speaker 01:
In a very complicated case, he's expected to, in bankruptcy, find a counsel who's willing to take on that case with the prospect of not being paid and file a response to the summary judgment motion.

[00:15:31] Speaker 03:
Unfortunately, that's probably the circumstances in many, many, many cases.

[00:15:36] Speaker 03:
guys getting hit with this stuff.

[00:15:38] Speaker 03:
He doesn't have a lawyer.

[00:15:39] Speaker 03:
He's got to either get a lawyer or decide he's going to represent himself and do the best that he can.

[00:15:45] Speaker 03:
And there might be leeway if he's representing himself.

[00:15:49] Speaker 03:
But none of that, I don't think.

[00:15:52] Speaker 03:
necessarily obviates the responsibility he has, lawyer or no lawyer, to proceed to represent himself if he wants to adjudicate the claim.

[00:16:02] Speaker 01:
And normally, in our experience with judges like that, when a pro se individual is in a circumstance where they've just gotten out of bankruptcy, their prior counsel has been drawn, there's a motion for some sort of government pending.

[00:16:15] Speaker 03:
Well, did he ask for a stay?

[00:16:16] Speaker 03:
Did he come in and say, look, I'm trying to find a lawyer.

[00:16:18] Speaker 03:
I need a lawyer.

[00:16:19] Speaker 03:
I want a lawyer.

[00:16:20] Speaker 03:
And I just need three weeks to try to obtain counsel.

[00:16:24] Speaker 03:
Can you give me that time to do that?

[00:16:26] Speaker 03:
Was that sort of request made?

[00:16:28] Speaker 01:
He is pro se, no, he did not do that.

[00:16:34] Speaker 01:
saying, this is pending.

[00:16:37] Speaker 01:
I'll give you some time to get counsel in order to file, but this is the only amount of time I'm going to give you.

[00:16:42] Speaker 01:
They don't just grant the motion with a two-paragraph summary decision without explaining it to the posting committee.

[00:16:49] Speaker 03:
Before your time runs out, can I just ask you to talk a little about, I mean, I know your main answer is we didn't get discovery, so we weren't in a position to be able to defeat summary judgment.

[00:16:59] Speaker 03:
But it seems to me some of the allegations you make as to the impropriety of summary judgment

[00:17:04] Speaker 03:
I think the facts are there.

[00:17:06] Speaker 03:
We know what the facts are, right?

[00:17:07] Speaker 03:
I mean, one of the arguments is that you expected more work, more contracts, and you got fewer.

[00:17:15] Speaker 03:
I don't think there's a factual dispute about that.

[00:17:18] Speaker 03:
doesn't lead one to conclude that that was an excuse for you not doing the work on the contracts you had because your expectation was you'd get more.

[00:17:26] Speaker 03:
So some of these summary judgment issues fall out, discovery, no discovery, right?

[00:17:31] Speaker 01:
Yeah, some of them are.

[00:17:32] Speaker 01:
I mean, our position for the eight that we identified, they don't fall out.

[00:17:37] Speaker 01:
And for example, just to give you one example, non-payment of invoices, that's recognized as an excusable delay

[00:17:45] Speaker 01:
financially squeezing a company so they can't perform, that's a recognized basis for overturning a termination for default.

[00:17:54] Speaker 01:
That happened in this case, but we weren't able to even conduct discovery on that particular issue.

[00:17:59] Speaker 03:
Was there a dispute as to whether or not the invoices were paid?

[00:18:04] Speaker 01:
No, there was just delay in payment, which is a recognized way to squeeze a company and not allow them to perform properly on a contract.

[00:18:12] Speaker 01:
I only have two minutes remaining, so I'll see the rest of my time for rebuttal.

[00:18:16] Speaker 04:
We'll restore some of your rebuttal time.

[00:18:17] Speaker 04:
Thank you, Council.

[00:18:18] Speaker 04:
Mr. Kirschner, am I saying that right?

[00:18:21] Speaker 02:
You are.

[00:18:22] Speaker 02:
Okay.

[00:18:22] Speaker 02:
Thank you.

[00:18:26] Speaker 02:
In both of the cases today before you, CGS portrays itself as a passive victim of circumstance who lost the appeals before the Civilian Board of Contract Appeals or the CBCA through no fault of its own.

[00:18:39] Speaker 02:
But the record in both of these cases demonstrates that that cannot be farther from the truth.

[00:18:43] Speaker 02:
In the three representative cases before the board, which are the subject of the first appeal before you, the 21-2035 appeal, CGS had an opportunity to conduct discovery for an entire year from the end of 2018 when they filed the board appeals to the end of 2019.

[00:19:04] Speaker 03:
But what's the play between CGS and the trustees' attorney?

[00:19:08] Speaker 03:
I mean, so they were there.

[00:19:11] Speaker 03:
Are you lumping them in one, or are you saying separately he had an opportunity?

[00:19:15] Speaker 02:
Separately, Your Honor.

[00:19:17] Speaker 04:
Was it before they went into bankruptcy?

[00:19:19] Speaker 02:
Before they went into bankruptcy, that's right.

[00:19:21] Speaker 02:
So CJS filed a voluntary petition for Chapter 7 bankruptcy in December of 2019.

[00:19:26] Speaker 02:
By then, their appeals before the board had been pending for an entire year.

[00:19:31] Speaker 02:
And their counsel of choice, Mr. Bush, had a year to conduct discovery.

[00:19:36] Speaker 02:
And he did.

[00:19:36] Speaker 02:
He served interrogatories.

[00:19:40] Speaker 02:
He served document requests.

[00:19:41] Speaker 02:
He subpoenaed documents from the third party.

[00:19:44] Speaker 02:
He did all that during that one year.

[00:19:46] Speaker 02:
He just was unable to substantiate the allegations that eventually were made on summary judgment.

[00:19:53] Speaker 04:
Because we have a number of cases here.

[00:19:55] Speaker 04:
Which of the cases is the one exactly in which he had that year to serve discovery and did serve discovery?

[00:20:02] Speaker 02:
So that relates to the three representative matters before the board, Your Honor.

[00:20:07] Speaker 02:
It is the... So all the appeals in front of us right now?

[00:20:12] Speaker 03:
The ones that we lost for jurisdiction.

[00:20:14] Speaker 02:
That's right.

[00:20:15] Speaker 02:
The ones that are lost for jurisdiction.

[00:20:16] Speaker 02:
So I'll give you a little bit of background.

[00:20:18] Speaker 02:
There is 18 total cases before the board.

[00:20:22] Speaker 02:
Those were split up.

[00:20:23] Speaker 02:
The board asked CGS to pick three representative matters.

[00:20:28] Speaker 02:
And CGS did that.

[00:20:29] Speaker 02:
They picked the Detroit-Michigan contract, Board Appeal Number 6264, the Tallahassee-Florida contract, Board Appeal Number 6279, and the Dallas-Texas contract.

[00:20:41] Speaker 04:
And all three were kicked for jurisdiction?

[00:20:44] Speaker 02:
All three.

[00:20:46] Speaker 02:
Well, they were not kicked for jurisdiction.

[00:20:47] Speaker 04:
I'm sorry, you're right.

[00:20:48] Speaker 04:
Summary judgment, right, is granted against them on all three.

[00:20:52] Speaker 02:
An unopposed motion.

[00:20:53] Speaker 04:
And the question is whether we have jurisdiction.

[00:20:55] Speaker 02:
That's right.

[00:20:55] Speaker 02:
That's exactly right.

[00:20:57] Speaker 02:
So that's the first matter before you.

[00:20:59] Speaker 03:
And when the unopposed motion for summary judgment was granted, was he individually represented or was it just the trustee's attorney that was representing the other side?

[00:21:12] Speaker 02:
By the time the unopposed motion for summary judgment was granted, which was in December of 2020, by then the bankruptcy trustee had abandoned all board appeals and they were no longer a part of the bankruptcy estate.

[00:21:27] Speaker 02:
And I believe at that time, CGS was already represented by successor council of their choosing.

[00:21:35] Speaker 02:
But again, going back to those representative cases, so from November of 2018 when they filed the board appeals, to December of 2019 when CGS voluntary petitioned for Chapter 7 bankruptcy, there was a year in which they could conduct discovery, they did so, they just did not substantiate their allegations.

[00:21:55] Speaker 02:
Now the next thing that CGS did,

[00:21:58] Speaker 04:
is involuntarily they did not substantiate their allegations.

[00:22:02] Speaker 04:
There was no determination of that.

[00:22:04] Speaker 02:
Well, there was no determination of that.

[00:22:06] Speaker 04:
Um, but in response to the we know for all I know, they had a ton of really good discovery that they obtained that would have substantiated their allegations.

[00:22:17] Speaker 04:
It's just that they weren't.

[00:22:19] Speaker 04:
They didn't have counsel who properly filed a response to the summary judgment motion.

[00:22:23] Speaker 02:
That's true for the representative matters.

[00:22:25] Speaker 02:
But they could have used those discovery responses if they had gotten those really good responses that showed the agency committed excusable delay under FAR 52.212-4.

[00:22:40] Speaker 02:
They could have used that discovery in response to the motion for summary judgment in the remaining 15 cases, to which they did respond.

[00:22:47] Speaker 02:
But they didn't do that.

[00:22:49] Speaker 02:
Now, I won the court.

[00:22:53] Speaker 02:
to not give them a free pass for the bankruptcy proceeding.

[00:22:57] Speaker 02:
Because while it is true, and I think you mentioned that, Chief Judge Moore, that you understand their position, that they were not represented, strictly speaking, by the attorney.

[00:23:08] Speaker 04:
Well, in fact, the trustee has sort of competing obligations and interests that he has to represent, he or she.

[00:23:15] Speaker 04:
So the trustee is not there purely as their representative.

[00:23:18] Speaker 04:
And if the bankruptcy obligations that he has to the creditors exceed, you know, or more important than whatever he has to do to preserve these cases, then he's got to make a call.

[00:23:29] Speaker 04:
He's not there purely to preserve their interests.

[00:23:31] Speaker 02:
So that is true.

[00:23:33] Speaker 02:
But that is a natural function of filing a voluntary petition for Chapter 7 bankruptcy.

[00:23:38] Speaker 02:
The bankruptcy code provides that that is exactly what happens.

[00:23:42] Speaker 04:
What have other courts held with regard to this?

[00:23:44] Speaker 04:
Have other courts suggested that events like this that occur during bankruptcy are or not attributed to the party who filed bankruptcy?

[00:23:56] Speaker 02:
We haven't seen anything specific to the scenario we have before you.

[00:24:01] Speaker 04:
There have to be cases out there in which a bankruptcy trustee didn't do something that would have protected or preserved the interests of the bankruptcy claimant.

[00:24:12] Speaker 04:
And there has to be.

[00:24:13] Speaker 04:
There has to be questions.

[00:24:14] Speaker 04:
Did you just not look beyond sort of the law that's most relevant to this case to see if there's anything analogous in Delaware, for example, or somewhere else?

[00:24:22] Speaker 04:
where they're looking at what should be attributed to the bankruptcy trustee and not attributed to the bankruptcy trustee.

[00:24:29] Speaker 02:
We haven't seen anything quite that specific, Your Honor.

[00:24:32] Speaker 00:
But I'll say that CGS- Are you saying that if the bankruptcy trustee hasn't performed properly, there are ways to challenge the trustee on a breach of fiduciary duty basis?

[00:24:48] Speaker 00:
But this isn't alleged here.

[00:24:51] Speaker 00:
the bankruptcy trustee was arguably determining what's in the best interest of the bankrupt estate.

[00:24:59] Speaker 00:
And in his or her determination, it made no sense to keep the case going.

[00:25:06] Speaker 02:
That's exactly right.

[00:25:07] Speaker 02:
And there may be an opportunity to challenge what the bankruptcy trustee decides, perhaps in the bankruptcy court proceeding.

[00:25:14] Speaker 03:
Was it clear to the other side that, I mean, one would assume that he would understand what

[00:25:21] Speaker 03:
his rights were vis-a-vis the bankruptcy attorney.

[00:25:24] Speaker 03:
And so was it an expectation or understood that maybe he ought to get his own lawyer and represent his own interests and that he failed to do that?

[00:25:33] Speaker 03:
Or do you think he was kind of hoodwinked and thinking like, well, these guys have my back and I don't have to do anything and they're just going to take care of me?

[00:25:40] Speaker 02:
So I'm not sure what the appellant understood.

[00:25:43] Speaker 02:
That perhaps is a better question for my friend on the other side.

[00:25:47] Speaker 02:
But what I can tell you is that the bankruptcy code is clear.

[00:25:51] Speaker 02:
That once a corporation that initiates civil litigation against someone else files a voluntary petition for Chapter 7 bankruptcy,

[00:26:01] Speaker 02:
the debtor's litigation becomes property of the bankruptcy estate.

[00:26:06] Speaker 02:
And that debtor loses all control over that ongoing litigation.

[00:26:10] Speaker 03:
OK, so going back to what he started with, which is on these other 15 contracts.

[00:26:15] Speaker 03:
So he's out there.

[00:26:16] Speaker 03:
He ultimately gets his own lawyer to represent his interests.

[00:26:21] Speaker 03:
And then why not give him discovery?

[00:26:25] Speaker 03:
There's a new lawyer in.

[00:26:27] Speaker 03:
Up until now, it's been really the bankruptcy interests that have been protected and not his.

[00:26:32] Speaker 03:
So it seems like his main argument with respect to the 15 remaining claims is that he wasn't given a fair opportunity for discovery.

[00:26:40] Speaker 03:
So can you respond to that?

[00:26:41] Speaker 02:
Sure.

[00:26:42] Speaker 02:
And my response is really in two parts.

[00:26:45] Speaker 02:
The first one is that CGS had an opportunity to conduct discovery on the 15 remaining appeals.

[00:26:52] Speaker 02:
because the SSA granted the government's motion for summary judgment on the representative appeals, the three appeals, in August of 2020, and the SSA did not move for summary judgment on the remaining appeals until December of 2020.

[00:27:07] Speaker 02:
That was a three and a half month period in which CGS could have either conducted any additional discovery if it saw fit, or asked the board to have more time to conduct additional discovery, asked for a stay, it could have done a number of things,

[00:27:21] Speaker 02:
But during that three and a half month period, it did absolutely nothing.

[00:27:24] Speaker 02:
And we don't think that's... And were they represented at that time?

[00:27:29] Speaker 02:
They were represented for part of that time, absolutely.

[00:27:31] Speaker 02:
I believe in October of 2020, they got represented by their current attorney.

[00:27:39] Speaker 02:
So that's my first response.

[00:27:40] Speaker 02:
My second response is that...

[00:27:45] Speaker 02:
You have to remember that the standard of review for a request for additional discovery under federal rule of civil procedure 5060 is abuse of discretion, which is a very high bar for overturning a trial-level court.

[00:27:59] Speaker 02:
So even if this court looks at the evidence before it and thinks to itself, well, if we were sitting as a trial court, perhaps we would have given CGF the benefit of the doubt and given them some additional time to conduct the discovery.

[00:28:12] Speaker 02:
That is not a reason to overturn

[00:28:15] Speaker 02:
the board's decision.

[00:28:16] Speaker 02:
The board's decision can only be overturned if they made a clear error of law or a clear error of fact.

[00:28:23] Speaker 02:
And based on the entire record... No, it's not a clear error of law.

[00:28:27] Speaker 04:
It's an error of law.

[00:28:28] Speaker 02:
I'm sorry.

[00:28:28] Speaker 02:
You're correct.

[00:28:29] Speaker 04:
The abuse of discretion standard is an error of law, which means de novo review on the legal question.

[00:28:34] Speaker 02:
That's right.

[00:28:34] Speaker 02:
An error of law or a clear error of fact.

[00:28:37] Speaker 02:
Okay.

[00:28:37] Speaker 04:
Can I ask you to put your pen down?

[00:28:38] Speaker 04:
It's a bit distracting.

[00:28:39] Speaker 02:
Oh, I'm sorry.

[00:28:39] Speaker 02:
You keep waving it around at us.

[00:28:41] Speaker 04:
I apologize.

[00:28:41] Speaker 04:
That's okay.

[00:28:42] Speaker 04:
I want to turn back to jurisdiction though because the government argues that we don't have jurisdiction

[00:28:49] Speaker 04:
And I am not certain that that's accurate in light of Torres.

[00:28:55] Speaker 04:
Would you address the government's position on are you arguing we don't have jurisdiction or that we shouldn't exercise jurisdiction?

[00:29:03] Speaker 04:
Because I think there's no doubt that at a minimum we have the ability here to choose not to exercise jurisdiction under these circumstances.

[00:29:12] Speaker 04:
What's the government's position?

[00:29:13] Speaker 04:
Is it black literally we don't have jurisdiction?

[00:29:16] Speaker 04:
Or is it, OK, under Torres, you may have jurisdiction, but we don't think you should because of all of these facts, exercise things?

[00:29:23] Speaker 02:
So we are arguing that the court does not have jurisdiction and may not exercise any discretion in reviewing these cases.

[00:29:31] Speaker 02:
So there's no question here that there's a jurisdictional 120-day period within which an appellant may appeal a decision from a board of contract appeals.

[00:29:44] Speaker 04:
Well, but Rule 4D allows for an improper filing, right, to be imputed to for jurisdictional purposes, doesn't it?

[00:29:56] Speaker 02:
Rule 4D of the federal rules of appellate procedure, I'm assuming, Your Honor, not the federal circuit rules, is a very specific rule that talks about appeals that were misfiled in an appellate court when they were actually supposed to be filed in a district court.

[00:30:13] Speaker 02:
And as we explained, there is a statutory provision that supplies the appellate court the ability to choose.

[00:30:21] Speaker 02:
1631.

[00:30:21] Speaker 02:
1631.

[00:30:22] Speaker 02:
That provision does not apply

[00:30:24] Speaker 02:
to appeals misfiled in a board of contract appeals.

[00:30:27] Speaker 04:
What about TORAS?

[00:30:28] Speaker 04:
What about the decision in TORAS?

[00:30:31] Speaker 04:
Does that open the door to an improper filing nonetheless being deemed, even though it's not technically compliant, as compliant?

[00:30:40] Speaker 02:
We don't think so, Your Honor.

[00:30:41] Speaker 02:
So TOR has involved Rule 3C of the Federal Rules of Appellate Procedure, which includes a specificity requirement.

[00:30:47] Speaker 02:
It says that all appellants must be specifically noted on the notice of appeal.

[00:30:53] Speaker 02:
And in TOR, as the Supreme Court held,

[00:30:55] Speaker 02:
that that specificity requirement in Rule 3C is jurisdictional in nature.

[00:30:59] Speaker 02:
And a failure to comply with that specificity requirement requires dismissal without any discretion, regardless of the circumstances of the case.

[00:31:09] Speaker 02:
And we think that in the same way that a failure to comply with the specificity requirement in Rule 3C would vitiate, as the Supreme Court put it, statutory deadlines,

[00:31:20] Speaker 02:
Failure to comply with Rule 15 and the procedure set out there for filing an appeal of an agency decision would also vitiate the statutory deadline for doing so.

[00:31:33] Speaker 02:
So we think.

[00:31:34] Speaker 00:
Federal Circuit Rule 15A2 is what governs, and we have no jurisdiction.

[00:31:41] Speaker 02:
15A2.

[00:31:43] Speaker 02:
Yes, I will only note that there's two rules that really govern here.

[00:31:47] Speaker 02:
There's federal circuit rule 15A2A.

[00:31:51] Speaker 02:
But there is also federal rule of appellate procedure 15A1.

[00:31:56] Speaker 02:
They're companion rules, in a way, because they both provide that in any appeal from an agency decision, that appeal has to be filed with the clerk of the appropriate appellate court.

[00:32:09] Speaker 02:
So in

[00:32:10] Speaker 02:
filing a notice of appeal with the board, which is what CGS did within the 120-day deadline, CGS failed to comply with both of those rules.

[00:32:20] Speaker 00:
And trap 4D is the opposite facts, where someone mistakenly files here.

[00:32:27] Speaker 02:
That's right, but again, it only applies to transfers among courts, right, between an appellate court and a district court, which is permitted by 28 U.S.C.

[00:32:38] Speaker 02:
section 1631.

[00:32:39] Speaker 02:
There is no corollary statutory provision that allows transfers between courts and administrative tribunals.

[00:32:46] Speaker 04:
Did you hear the line of questioning that I had with opposing counsel about the concerns I had about broadening the exception that permits transfer

[00:32:57] Speaker 04:
I just don't know where the line would stop.

[00:33:02] Speaker 04:
The board of contract appeals is an Article I tribunal, is that correct?

[00:33:08] Speaker 02:
That's right.

[00:33:09] Speaker 04:
Yeah.

[00:33:09] Speaker 04:
And so if filing in a non Article III court would suddenly satisfy a jurisdictional requirement for an Article III court, I just became concerned about where the line would be drawn in terms of satisfying filing requirements.

[00:33:22] Speaker 04:
Does the government have that same concern?

[00:33:25] Speaker 02:
Absolutely.

[00:33:25] Speaker 02:
We agree 100%, Your Honor, because

[00:33:28] Speaker 02:
If notice to the agency becomes the standard, whenever the agency gets notice, then you can imagine a whole host of other scenarios where an appellant would do something else and then come to the court for relief just because they provided notice to the agency.

[00:33:45] Speaker 02:
For instance, what if the next time

[00:33:47] Speaker 02:
an appellant wants to appeal a decision of, let's say, the CBCA, just like here.

[00:33:52] Speaker 02:
But instead of filing a petition for review with the clerk, they email something.

[00:33:56] Speaker 02:
They email in an unofficial email someone at the clerk's office instead of filing a notice on the ECF system.

[00:34:03] Speaker 02:
Would that be enough to file within the confines of Rule 15 just because they provided notice to the agency?

[00:34:09] Speaker 02:
Or what if they're trying to appeal a CBCA decision, but instead of filing a notice of appeal with the CBCA, which

[00:34:17] Speaker 02:
on its own would not be proper, they filed a notice of appeal with the Armed Services Board of Contract Appeals, a different board, because they made another mistake and they confused it with another case they had before the ASPCA.

[00:34:27] Speaker 04:
If we agree with you on the jurisdictional question, either of the two ways, that it's mandatory and we have no jurisdiction, or even if it's

[00:34:38] Speaker 04:
At our discretion, we shouldn't exercise jurisdiction.

[00:34:41] Speaker 04:
In either of those scenarios, we're ultimately agreeing with what you want for jurisdiction.

[00:34:46] Speaker 04:
Does that just end the case in its entirety, all of the matters currently before us?

[00:34:50] Speaker 02:
No, Your Honor, not quite.

[00:34:52] Speaker 02:
So that would end the first appeal, the 21-20-35 appeal that relates to the three representative matters.

[00:35:01] Speaker 02:
It would not end the second appeal, the 22-12-31 appeal, because in that appeal, CGS did timely petition for review of the board's second summary judgment decision.

[00:35:13] Speaker 03:
So with respect to those 15 contracts, we will have to decide whether or not the grant of summary judgment is proper.

[00:35:21] Speaker 02:
You would have to decide that.

[00:35:23] Speaker 02:
That's correct, Your Honor.

[00:35:25] Speaker 00:
And so you're saying the case with the three appeals should be dismissed.

[00:35:30] Speaker 02:
That's right.

[00:35:31] Speaker 00:
And the other should be affirmed.

[00:35:32] Speaker 02:
That's correct.

[00:35:34] Speaker 02:
That's correct, Judge Lord.

[00:35:34] Speaker 00:
Because there's no proof of excusable neglect.

[00:35:39] Speaker 02:
because there is no proof of excusable, well, there's no proof of excusable delays, which is the provision within FAR 52.212-4, which was incorporated into the 15 contracts, that allows conversion of a termination for default to a termination for convenience.

[00:36:04] Speaker 02:
The problem that CGS faces is that in the 15

[00:36:09] Speaker 02:
remaining board appeals.

[00:36:11] Speaker 02:
They offered these eight implied duties of good faith and fair dealing, and they suggested to the board that the SSA violated these implied duties.

[00:36:23] Speaker 02:
The problem is that they didn't provide any contractual hook.

[00:36:28] Speaker 02:
They didn't provide any anchor within the contract that brings up these implied duties.

[00:36:35] Speaker 02:
And so what they essentially try to do is they try to use this amorphous concept of implied duties of good faith and fair dealing to fabricate brand new extra contractual requirements and then apply those requirements to the government.

[00:36:48] Speaker 03:
Well, one of the allegations, for example, is that they said that the SSA employees were unwelcoming to them.

[00:36:55] Speaker 03:
There could be a situation, could there not, however, where that conduct would rise to the level so that it would be a breach of an implied duty of good faith and therefore constitute exclusive neglect.

[00:37:09] Speaker 03:
I mean, that's a theory that's sound in a legal matter, right?

[00:37:14] Speaker 02:
There could potentially be.

[00:37:16] Speaker 02:
It really depends on the facts, which the board never got to.

[00:37:21] Speaker 02:
But it can only be breach of an employee.

[00:37:23] Speaker 03:
Well, that's not a good thing for you to say, Warren, on summary judgment.

[00:37:26] Speaker 03:
I mean, so they never got to it.

[00:37:27] Speaker 03:
Why?

[00:37:28] Speaker 03:
Because there was no discovery and there were no facts presented?

[00:37:31] Speaker 02:
No.

[00:37:31] Speaker 02:
No, Your Honor.

[00:37:32] Speaker 02:
They never got to it because CGS simply said that SSA employees were not welcoming to CGS employees.

[00:37:41] Speaker 02:
they never provided a contractual anchor.

[00:37:44] Speaker 02:
They never identified a contract obligation that brings up this implied duty of good faith and fair deal.

[00:37:53] Speaker 02:
In Dobbins, this court said most clearly, it said so before Dobbins as well, but in Dobbins it said most clearly that if a contractor

[00:38:04] Speaker 02:
tries to create new extra contractual requirements through the implied duty of good faith and fair dealing without tethering those to a specific contractual obligation, that's not something that they can prevail.

[00:38:17] Speaker 02:
And that's exactly what CGS did here.

[00:38:19] Speaker 02:
I do want to know that in their reply brief before this court, they for the first time tried to identify some contractual obligations, some provisions within the contract that would be implicated by these implied duties.

[00:38:34] Speaker 02:
But again, the problem here is they did not do that below.

[00:38:37] Speaker 02:
And if you look at pages 493 to 522 of the Joint Appendix in the second matter, it reproduces in its entirety CGS's response to the motion for summary judgment.

[00:38:49] Speaker 02:
There is no mention of any contract terms in that response.

[00:38:54] Speaker 02:
So they didn't do that below.

[00:38:56] Speaker 02:
And they didn't do that in their opening brief before this court.

[00:38:59] Speaker 02:
And so we did not have an opportunity to address those.

[00:39:01] Speaker 02:
And so to the extent the court would like to credit their citation to contractual provisions, those are now twice forfeited.

[00:39:10] Speaker 04:
OK.

[00:39:10] Speaker 04:
Thank you, counsel.

[00:39:13] Speaker 04:
Mr. Cronin, you have some rebuttal time?

[00:39:15] Speaker 01:
Thank you.

[00:39:17] Speaker 01:
Your Honor, with respect to the timeline that counsel has put, sorry.

[00:39:20] Speaker 04:
That's all right.

[00:39:21] Speaker 04:
It's easier to hear you without it.

[00:39:23] Speaker 01:
With respect to the timeline that Council has presented in regard to the retaining new Council, new Councils are retained in December of 2020, shortly before the response to the motion for summary judgment.

[00:39:34] Speaker 04:
But is Council correct that there was an entire period of time during which active discovery was conducted?

[00:39:42] Speaker 01:
There was not a year time that active discovery was conducted.

[00:39:45] Speaker 01:
In December of 2019, the original Council notified the Board that

[00:39:52] Speaker 04:
that the appellant had filed bankruptcy and... Yes, but how long did it have to file and conduct discovery?

[00:40:02] Speaker 01:
I don't have the original docking date before me, but all I know is that December 2019 was the date that the notification was that they went into bankruptcy.

[00:40:12] Speaker 04:
Well, the government suggests that they did have time and in fact did conduct discovery during that time.

[00:40:17] Speaker 01:
Is that correct?

[00:40:18] Speaker 01:
They provided written interrogatories, but no depositions were taken by the appellant.

[00:40:22] Speaker 01:
Did they notice depositions?

[00:40:25] Speaker 01:
No, they did not at that time.

[00:40:27] Speaker 01:
So as you know, the discovery process, there's normal processes, written discovery, you get responses to written discovery, you formulate your case based on the written discovery responses, and then tactically take depositions.

[00:40:41] Speaker 01:
At that point, they were at the point to tactically take depositions, and the bankruptcy was filed.

[00:40:47] Speaker 01:
So the key point in discovery, the deposition process was

[00:40:53] Speaker 01:
was the appellant was in the bankruptcy proceeding where they had no counsel.

[00:40:59] Speaker 01:
And despite what Appellee says that the bankruptcy trustee was representing interest, obviously from the conduct, we know that he was not representing the appellant's interest.

[00:41:11] Speaker 01:
The appellant had no reason to know that they weren't representing their interest and not conducting discovery.

[00:41:16] Speaker 03:
What are the financial, the consequences of your prevailing here in terms of the contract dispute, just generally?

[00:41:24] Speaker 01:
Well, we requested two forms of relief.

[00:41:26] Speaker 01:
Conversion of the, as you know, conversion of termination for fault, termination convenient, and then three... Which would mean the government would be on the hook for the non-paid funds?

[00:41:35] Speaker 03:
Is that the consequence?

[00:41:36] Speaker 01:
Termination for convenient costs, so whatever costs they incurred in attempting to perform a contract, attorney fees and any other costs.

[00:41:45] Speaker 01:
And those are the three forms of relief that were requested before the board.

[00:41:51] Speaker 01:
is we never requested a sum certain so the board shouldn't even have jurisdiction in any cases in the first place because it was never presented to the contracting officer to request a sum certain.

[00:42:02] Speaker 01:
And that's something that should have been done properly before the board.

[00:42:08] Speaker 01:
And with respect to the jurisdictional argument,

[00:42:10] Speaker 01:
that on the case 2021-2035 that the court does not have jurisdiction.

[00:42:15] Speaker 01:
I'd just like to highlight the quote from the Foreman decision, which says, the requirements of the rules of procedure should be liberally construed and mere technicalities should not stand in the way of consideration of appeal on the merits.

[00:42:29] Speaker 01:
So we did file with the board.

[00:42:32] Speaker 01:
It is the court

[00:42:34] Speaker 01:
In this case, it's not just any random government agency or another board.

[00:42:40] Speaker 01:
The police says we could have filed with another board.

[00:42:43] Speaker 01:
We had specific facts here where we filed with the original court of jurisdiction.

[00:42:47] Speaker 01:
It was within 120 days.

[00:42:50] Speaker 01:
All the parties were notified of facts that they should not be.

[00:42:54] Speaker 03:
I've always had trouble with what mere technicalities mean.

[00:42:57] Speaker 03:
I mean, it seems like when you're talking about filing, filing deadlines, where you file,

[00:43:01] Speaker 03:
One could construe those as being mere technicalities, but those are the bread and butter and sum and substance of all these rules, right?

[00:43:08] Speaker 01:
Yes, Your Honor.

[00:43:09] Speaker 01:
And our position is though, jurisdictionally, the requirement is 120 days.

[00:43:13] Speaker 01:
You have 120 days to file.

[00:43:15] Speaker 01:
With respect to the process for filing, whether it should be filed with the Court of Appeals, Court of Federal Claims, the Board, those technicalities are not jurisdictional, and the Board has discretion whether or not too long

[00:43:31] Speaker 04:
Okay, thank you, counsel.

[00:43:33] Speaker 04:
We've heard from both counsel and these cases are kicking under submission.