[00:00:00] Speaker 04:
I guess the first thing I'd better say is I'm really shivering to be up here and rather uncomfortable because this thing could have been prevented if I'd used a little more due diligence.

[00:00:09] Speaker 04:
But I can also assure you that in my own mind, that notice of appeal was filed.

[00:00:15] Speaker 04:
I can give you all kinds of reasons.

[00:00:19] Speaker 04:
I don't often notice excuses.

[00:00:21] Speaker 04:
But I had in my hands, or on my computer screen at least, the filing of the

[00:00:29] Speaker 04:
of the fee.

[00:00:31] Speaker 04:
The document was uploaded after the whole thing.

[00:00:34] Speaker 04:
Where did it break down?

[00:00:35] Speaker 04:
I'm not sure.

[00:00:36] Speaker 04:
I mean, I just cannot go back with an independent memory of it.

[00:00:39] Speaker 03:
But the real problem for you is that it didn't come to your attention or whatever until long past the other 30, the 30 other deadline.

[00:00:49] Speaker 04:
Judge, you're exactly 100% right.

[00:00:52] Speaker 04:
I can't argue with that a bit.

[00:00:55] Speaker 04:
In defense, I would say again,

[00:00:57] Speaker 04:
When I filed it, it did go into the system.

[00:01:00] Speaker 04:
It had to, otherwise it couldn't pay the filing fee, whether or not.

[00:01:03] Speaker 02:
When you say it, do you mean the filing fee or the notice?

[00:01:07] Speaker 04:
The notice of appeal had to be uploaded before you got to the filing fee.

[00:01:11] Speaker 04:
But it never made it to the CMECF.

[00:01:14] Speaker 04:
It never made it to the court.

[00:01:16] Speaker 04:
It was uploaded on my computer.

[00:01:18] Speaker 04:
I looked at it, yes, fine, next, filing fee, credit card, all that.

[00:01:23] Speaker 04:
And then at some point,

[00:01:25] Speaker 04:
Something happened.

[00:01:26] Speaker 04:
I don't know if I had to cancel instead of next.

[00:01:29] Speaker 04:
I mean, it's a possibility.

[00:01:30] Speaker 04:
I'm not a newbie at this.

[00:01:32] Speaker 04:
I know how to file the things.

[00:01:33] Speaker 04:
But I mean, is it possible I made a human mistake?

[00:01:35] Speaker 04:
Sure.

[00:01:36] Speaker 04:
Is it possible there was an internet thing?

[00:01:38] Speaker 04:
We were having internet fluctuations at that time.

[00:01:40] Speaker 04:
And part of the problem is you remember the time frame.

[00:01:45] Speaker 04:
This is pandemic 101, 102, coming back and forth.

[00:01:51] Speaker 04:
We were shifting from office to home to office to home

[00:01:55] Speaker 04:
In Louisiana, we had several times when there was lockdown, several times they weren't.

[00:02:02] Speaker 04:
And I don't know if I did it.

[00:02:06] Speaker 04:
I don't know if it was a glitch with the system in the court's CMECF system.

[00:02:11] Speaker 04:
And Judge Hirtling did say.

[00:02:14] Speaker 04:
We don't know what happened.

[00:02:15] Speaker 04:
And that's actually true.

[00:02:16] Speaker 04:
I just don't know.

[00:02:17] Speaker 02:
The rules of the Court of Federal Claims, and I'm looking at Appendix E of the rules, which you may be familiar with, says that a filing is not complete until the notification comes back from the court that the filing has been made.

[00:02:32] Speaker 02:
Yes, sir.

[00:02:32] Speaker 02:
And that never happened in this case, I take it, at the time.

[00:02:36] Speaker 04:
It never happened.

[00:02:37] Speaker 04:
Again, the problem is sometimes those things come back.

[00:02:41] Speaker 04:
They go to spam folders.

[00:02:44] Speaker 04:
And sometimes you just miss him.

[00:02:46] Speaker 04:
Now, what was in my case or in my head at that time was, if you remember, Lafayette Square was kind of under siege.

[00:02:54] Speaker 04:
And I had filed a number of other things, as the council pointed out, on behalf of military veterans advocacy and others, including a couple of extraordinary risks.

[00:03:03] Speaker 04:
We were having problems getting the docketing sheet back.

[00:03:08] Speaker 04:
And I remember calling up and talking to,

[00:03:11] Speaker 04:
the clerk's office, and they said, look, we're just really behind.

[00:03:15] Speaker 04:
Things are happening.

[00:03:17] Speaker 04:
It's hard to come to work, you know, and because of both pandemic and now.

[00:03:20] Speaker 03:
Well, I'm a little surprised, because I was here every day, and we were operating quite efficiently.

[00:03:24] Speaker 03:
I can only tell you what they told me, Judge.

[00:03:27] Speaker 03:
But how did you ultimately just, I mean, at some point, the light bulb went on, and you realized there was a problem, right?

[00:03:32] Speaker 03:
You, under that filing, you were just filing what?

[00:03:34] Speaker 04:
Well, actually, what keyed me to it is I had gotten a docking notice from this court.

[00:03:41] Speaker 04:
And that's what I couldn't figure out.

[00:03:43] Speaker 04:
And it was, again, just a lot of things, a lot of balls in the air.

[00:03:48] Speaker 04:
I looked at it, and I said, I've got to go check on that.

[00:03:52] Speaker 04:
And then something else would happen.

[00:03:53] Speaker 03:
Well, you've got a problem, right?

[00:03:55] Speaker 03:
I mean, you realize that you have a problem here, and the rules are the rules.

[00:03:59] Speaker 03:
And sometimes things happen, and they appear not to be fair.

[00:04:05] Speaker 03:
But how do you get through the hurdles that are articulated in Judge Hurtling's opinion?

[00:04:11] Speaker 04:
Well, I think the big thing is the constructive filing doctrine.

[00:04:13] Speaker 03:
And constructive filing meaning what?

[00:04:17] Speaker 03:
What was constructive?

[00:04:19] Speaker 03:
Because you filed the fee?

[00:04:21] Speaker 04:
Well, not only that, but because I actually attached the notice of appeal.

[00:04:26] Speaker 04:
It comes to the point where you have to go browse and upload.

[00:04:30] Speaker 04:
You do that, and then you pay the filing fee.

[00:04:34] Speaker 04:
You know, on a complaint or actually in district court, usually what will happen is you'll get a little thing on there that says, once you've paid a filing fee, you have to complete it.

[00:04:43] Speaker 04:
And if you don't complete it, you get a gig.

[00:04:46] Speaker 04:
I never got a gig.

[00:04:47] Speaker 04:
I just assumed.

[00:04:48] Speaker 04:
And of course, assuming is never a good thing.

[00:04:52] Speaker 04:
But I just assumed it went through until finally it was just dawning on me that we weren't getting a docketing.

[00:04:59] Speaker 02:
What would ever happen to the $505 filing fee?

[00:05:03] Speaker 04:
Well, they haven't responded to the judge.

[00:05:06] Speaker 04:
And I'm not asking for it at this point.

[00:05:09] Speaker 02:
But that was taken out of the account?

[00:05:13] Speaker 02:
Oh, yeah.

[00:05:13] Speaker 04:
Yes, sir.

[00:05:14] Speaker 04:
I paid that for the black credit card.

[00:05:20] Speaker 04:
But it was taken out immediately?

[00:05:22] Speaker 04:
Yes.

[00:05:23] Speaker 04:
And that's when I got the...

[00:05:24] Speaker 04:
receipt under it from pay.gov.

[00:05:27] Speaker 04:
I see.

[00:05:28] Speaker 03:
So what are the rules that you're advocating?

[00:05:30] Speaker 03:
If you're advocating this was a constructive filing, how do we define that?

[00:05:37] Speaker 03:
I mean, yours is a very peculiar and different example, perhaps, but how do we put any limits on that?

[00:05:43] Speaker 03:
What are the limits?

[00:05:45] Speaker 04:
Well, I don't know if you can put in a stupidity exception, because I could probably qualify for that on this case.

[00:05:52] Speaker 04:
And believe me, if you all had a

[00:05:54] Speaker 04:
dumb move of the year award I'd have to nominate myself because... You'd have a lot of competition.

[00:06:02] Speaker 04:
I'm not sure on this one, Judge.

[00:06:03] Speaker 02:
I appreciate it.

[00:06:07] Speaker 02:
To follow up, I have the same question that Judge Prost does.

[00:06:14] Speaker 02:
What theory do you think is the most attractive theory for you?

[00:06:19] Speaker 02:
That A, the notice of

[00:06:21] Speaker 02:
or the payment was itself a constructive notice of appeal, or B, that what you did constitutes that making an effort to file the notice of appeal constitutes a notice, or what?

[00:06:36] Speaker 04:
I think it's all of the above.

[00:06:38] Speaker 04:
If it was just a matter of pay the filing fee and then come back and make a separate CMECF transaction,

[00:06:44] Speaker 04:
I'd say that the constructive filing would not apply.

[00:06:48] Speaker 02:
So the paying the filing fee itself wouldn't be enough?

[00:06:51] Speaker 04:
No, sir.

[00:06:51] Speaker 04:
But the whole process of going through, uploading it, the only thing I can figure out, Judge, is if it was my failure, and it very well may have been, is everything was done until the next key, the last thing to put it up,

[00:07:08] Speaker 04:
And I don't know if I hit cancel.

[00:07:12] Speaker 04:
I don't know if my internet dropped.

[00:07:14] Speaker 04:
I don't know if the court's internet dropped.

[00:07:16] Speaker 04:
I honestly don't know.

[00:07:17] Speaker 04:
I wish I did.

[00:07:19] Speaker 04:
My client, however, is a very understanding sort, which I appreciate.

[00:07:25] Speaker 04:
But any harm or any negligence on the part in this case is mine, not his.

[00:07:34] Speaker 04:
And one of the things I think about the constructive filing doctrine

[00:07:37] Speaker 04:
is it does allow for taking care of dumb moves by attorneys and by anybody else.

[00:07:49] Speaker 02:
Is there any case under section 2107, which is the section that governs the filing, that's the section that's been held to be mandatory and jurisdictional, but is there any case to your knowledge in which facts

[00:08:07] Speaker 02:
akin to yours, let's say, have been held to be sufficient for a constructive filing.

[00:08:13] Speaker 04:
Not 2107, per se, but then the jurisdictional statute, or I'm sorry, the statute, we don't think it's jurisdictional, is 2555.

[00:08:22] Speaker 04:
And there is nothing under that.

[00:08:23] Speaker 02:
2522.

[00:08:23] Speaker 04:
2255, you're right, Judge.

[00:08:26] Speaker 04:
Thank you.

[00:08:28] Speaker 02:
Right, but the statute 2107, I think, applies to all courts of appeals.

[00:08:32] Speaker 02:
And 2522 just says, well, you know,

[00:08:37] Speaker 02:
appeals from the Court of Federal Claims where we follow the same process.

[00:08:41] Speaker 04:
But there are some issues, some cases, especially in the veterans arena, where constructive filing has come into place, the case of- Right.

[00:08:51] Speaker 02:
But those aren't covered by 2107, I don't think.

[00:08:57] Speaker 02:
Right?

[00:08:59] Speaker 02:
And they're not covered by 2522.

[00:09:00] Speaker 04:
They're not by 2522.

[00:09:02] Speaker 04:
I don't believe that that statute

[00:09:06] Speaker 04:
And I read it again this morning.

[00:09:08] Speaker 04:
It actually incorporates 2107.

[00:09:10] Speaker 04:
The court found that it did.

[00:09:13] Speaker 04:
But the plain language of the statute, which is what we have to go to, does not mention 2107.

[00:09:18] Speaker 02:
But 2107 applies to all appeals to courts of appeals from judgments and orders.

[00:09:27] Speaker 02:
And why doesn't that include appeals from the Court of Federal Claims to this court?

[00:09:33] Speaker 04:
Well, I think for pepperisms, first off, there's a separate statute.

[00:09:36] Speaker 04:
If 2522 didn't exist, I'd say that argument would be right on.

[00:09:44] Speaker 04:
But it doesn't exist, just like 7266 exists for the Veterans Courts.

[00:09:50] Speaker 04:
So I think Congress has set up a separate scheme

[00:09:55] Speaker 04:
Plus, we're dealing with Article I courts, where the 2107 normally deals with Article III courts at the district level.

[00:10:01] Speaker 04:
I understand you all are Article III court.

[00:10:03] Speaker 04:
I wasn't trying to denigrate you.

[00:10:05] Speaker 04:
But I think those two things are very unique.

[00:10:12] Speaker 04:
Your Honors, I'm into my rebuttal time.

[00:10:14] Speaker 03:
Why don't we hear from the other side?

[00:10:16] Speaker 03:
Thank you so much.

[00:10:17] Speaker 04:
And again, my apologies.

[00:10:19] Speaker 04:
I can't believe I screwed this up.

[00:10:42] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:10:45] Speaker 01:
This case is unfortunate, and I take no pleasure in the argument, but the court must affirm the trial court's post-judgment order because Mr. Summers did not appeal and did not move to extend the time to appeal within the time limits set forth in section 2107.

[00:11:04] Speaker 01:
This court's precedents are crystal clear.

[00:11:07] Speaker 01:
Time and again, in cases like Marandola

[00:11:11] Speaker 01:
and Safarelli, this court has held that the statutory time limits are jurisdictional.

[00:11:19] Speaker 02:
You've started off on the same point that your opposing counsel ended with, so let's see if we can move to that.

[00:11:27] Speaker 02:
Do you think that 2107 governs this case, or 2522, or both?

[00:11:34] Speaker 01:
It's both, Your Honor.

[00:11:37] Speaker 01:
Marandola and Soffarelli were both appeals from the Court of Federal Claims.

[00:11:41] Speaker 01:
And the way the statutes interoperate is 2107 applies to all appeals from judgments from district courts.

[00:11:50] Speaker 01:
That's 2107.

[00:11:51] Speaker 02:
From district courts?

[00:11:53] Speaker 01:
Yes, that's the language of the rule.

[00:11:55] Speaker 01:
And then 2522 provides that

[00:12:00] Speaker 01:
appeals from the Court of Federal Claims proceed in the same manner as appeals from district courts.

[00:12:07] Speaker 02:
Maybe I'm missing it, but I don't see any reference to district courts.

[00:12:12] Speaker 02:
Is there any in 2107?

[00:12:17] Speaker 02:
2107A, except as otherwise provided in this section, no appeal should bring any judgment, order, or decree in an action suit or proceeding of the civil nature before a court of appeals for review unless notice of appeal is filed within 30 days.

[00:12:29] Speaker 01:
Indeed, Your Honor, the reference to the district court that I was thinking of is in 2107C.

[00:12:36] Speaker 02:
And that's not implicated here.

[00:12:39] Speaker 01:
I'm sorry, Your Honor.

[00:12:41] Speaker 02:
That isn't what governs the 30 or, in this case, 60-day rule.

[00:12:51] Speaker 01:
That's right.

[00:12:51] Speaker 01:
2107C just deals with the extension for good cause.

[00:12:57] Speaker 01:
That's right.

[00:12:58] Speaker 01:
So arguably, 2107 would apply to any civil appeal, as Your Honor indicated.

[00:13:04] Speaker 01:
But lest there be any doubt, 2522 specifically says.

[00:13:09] Speaker 03:
But our precedent, the precedent we've been talking about here, Stafarelli and Marandola, they didn't reference 2522 at all.

[00:13:18] Speaker 01:
Well, they did not, and they certainly could have, if I may, Your Honor.

[00:13:31] Speaker 01:
Last month, the court decided parrots, which did specifically reference 2107 and 2528.

[00:13:39] Speaker 01:
Is that a non-presidential opinion?

[00:13:43] Speaker 01:
To my knowledge, I believe it's non-presidential, Your Honor.

[00:13:46] Speaker 02:
We've had a lot of non-presidential opinions, but of course, they're non-presidential.

[00:13:50] Speaker 02:
So let's return.

[00:13:52] Speaker 02:
I'm interested in the government's position with respect to the role played by 2522.

[00:13:59] Speaker 02:
Are you seeing, in effect,

[00:14:01] Speaker 02:
either that without 2522, this rule would not apply to the Court of Federal Claims, or are you saying that 2522, with respect to the 60-day requirement, is superfluous, given the existence of 2107?

[00:14:15] Speaker 01:
Well, presumably, Congress did not intend to pass a superfluous statute.

[00:14:22] Speaker 01:
But whether you look at 2107A,

[00:14:25] Speaker 01:
or that provision in conjunction with 25-22?

[00:14:28] Speaker 02:
Well, I guess I'm stepping back a step.

[00:14:32] Speaker 02:
I'm interested in what the government's position is with respect to this question.

[00:14:37] Speaker 02:
Is 2107 enough, or is 25-22 essential to establish the rule that applies to court of federal claims appeals?

[00:14:50] Speaker 01:
I think the argument could be made that 2107, A, standing alone, is sufficient.

[00:14:57] Speaker 01:
We have not made that argument because we didn't think we needed it in this case.

[00:15:04] Speaker 01:
And that's not something I've studied at length.

[00:15:10] Speaker 03:
You're right.

[00:15:11] Speaker 03:
Congress, we would never suggest they do anything superfluous.

[00:15:14] Speaker 03:
But on the other hand, we do talk about belts and suspenders.

[00:15:17] Speaker 03:
and sort of fix it for those.

[00:15:20] Speaker 03:
So what about, I think your friend makes the argument, we got bowls, and that concerns 2107, but not necessarily 2522.

[00:15:30] Speaker 03:
So if you're relying on 2522, what do you make of that argument?

[00:15:35] Speaker 01:
Well, it's a distinction without a difference, Your Honor, because 2522 specifically says that any appeal from the court of federal claims will proceed in the same manner and at the same time as an appeal from a district court.

[00:15:51] Speaker 01:
So there's no daylight between the law as it pertains to appeals from district courts and appeals from the court of federal claims.

[00:16:02] Speaker 03:
I know I'm going to regret asking this question,

[00:16:06] Speaker 03:
to suggesting why anyone thought it was necessary?

[00:16:11] Speaker 01:
We have not studied that question, Your Honor, so I don't know.

[00:16:14] Speaker 01:
So I would respectfully submit, Your Honor, that the plain language of the statute is crystal clear.

[00:16:22] Speaker 01:
In the same time, in the same manner as a district court appeal,

[00:16:27] Speaker 01:
There's no daylight.

[00:16:28] Speaker 00:
It actually says it has to be filing a notice of appeal with the Clerk of the Court of the Federal Plains within the time and in the manner prescribed for appeals to the United States Court of Appeals for the United States District Courts, right?

[00:16:39] Speaker 00:
Yes, indeed.

[00:16:40] Speaker 00:
That language is precise.

[00:16:43] Speaker 01:
Absolutely, Your Honor.

[00:16:44] Speaker 01:
And I was paraphrasing.

[00:16:45] Speaker 01:
But indeed, that's the language of the statute.

[00:16:49] Speaker 02:
So Mr. Wells argued that

[00:16:57] Speaker 02:
the appeals from the Veterans Court, the Court of Appeals for Veterans Claims, are governed by a different statute.

[00:17:06] Speaker 02:
And the rules are therefore different.

[00:17:11] Speaker 02:
Does that suggest that maybe 2107 does not cover Court of Federal Claims appeals?

[00:17:18] Speaker 02:
Because you could, I suppose, say that the appeals coming from a judgment of the

[00:17:24] Speaker 02:
Court of Appeals for Veterans Claims is an appeal from a judgment or order in a civil action.

[00:17:31] Speaker 02:
Or would you say that's not a civil action?

[00:17:34] Speaker 01:
Those provisions are inapplicable.

[00:17:37] Speaker 02:
I understand they're inapplicable.

[00:17:39] Speaker 02:
What I'm trying to go with this question is to try to see if the status of the statute that governs veterans claims tells us something

[00:17:49] Speaker 02:
about the status of the statute governing appeals from the Court of Federal Claims if you see what I mean.

[00:17:55] Speaker 01:
I understand your question, Your Honor.

[00:17:56] Speaker 01:
It doesn't.

[00:17:57] Speaker 01:
Mr. Summers invokes the pro-veteran canon from veterans' appeals in this case.

[00:18:04] Speaker 01:
Mr. Summers is a veteran, and we thank him for his service, but this appeal does not involve any veteran statute, and he has not identified any statutory ambiguity.

[00:18:15] Speaker 01:
So the canons of construction

[00:18:18] Speaker 01:
do not come into play.

[00:18:19] Speaker 01:
Instead, the resolution of this appeal requires a straightforward application of the time limits in the statute under this court's well-established precedent.

[00:18:31] Speaker 02:
What about the question of whether there was an effective filing of the notice through either the paying of the fee, which was apparently acknowledged to the cash, the check.

[00:18:45] Speaker 02:
So that's a pretty good indication of acknowledgment

[00:18:48] Speaker 02:
or any of the other steps taken by Mr. Wells in this case.

[00:18:56] Speaker 01:
Right.

[00:18:56] Speaker 01:
So Mr. Summers attempted to file the Notice of Appeal and did pay the filing fee, but he didn't actually file the Notice of Appeal.

[00:19:07] Speaker 01:
Right.

[00:19:07] Speaker 01:
Until you reach that last step,

[00:19:09] Speaker 01:
in the filing process, the document never leaves your computer.

[00:19:16] Speaker 01:
This is the electronic equivalent of leaving a notice of appeal on the sidewalk outside of the courthouse.

[00:19:24] Speaker 02:
How do we know that?

[00:19:28] Speaker 02:
The only thing we know is that there wasn't a receipt sent back.

[00:19:32] Speaker 02:
But that doesn't necessarily tell us, does it, that there was nothing received by the court.

[00:19:40] Speaker 02:
computers, the functionality that produces the receipt may have been ineffective at that point, or some glitch may have occurred, right?

[00:19:48] Speaker 01:
Well, no.

[00:19:49] Speaker 01:
We do know that it never reached the court, because the court's rules say that a document is not electronically docketed until that last step.

[00:20:00] Speaker 02:
Right, as a matter of

[00:20:02] Speaker 02:
law in a sense that the court has defined a filing as requiring that last step.

[00:20:10] Speaker 02:
I agree with you.

[00:20:11] Speaker 02:
But that doesn't mean that as a matter of fact that the submission didn't reach the court, does it?

[00:20:18] Speaker 01:
OK.

[00:20:19] Speaker 01:
Well, let's talk about as a matter of fact.

[00:20:24] Speaker 01:
There was no showing that there was any error by court personnel or court processes in this case.

[00:20:31] Speaker 01:
There's been a showing that the appellant has no idea how it happened.

[00:20:38] Speaker 01:
I can tell, Your Honor, that I specifically asked the ECF clerk of the Court of Federal Claims this very question, because I didn't want to make an argument before, Your Honors, if I wasn't absolutely confident that I was making the correct argument.

[00:20:56] Speaker 01:
And the document does not leave your computer

[00:21:01] Speaker 01:
until that final step.

[00:21:03] Speaker 01:
If you abort the filing at any point before that final step, it never leaves your computer.

[00:21:10] Speaker 01:
It never is received by the courthouse.

[00:21:12] Speaker 01:
And there could be no showing that the court ever received this notice of appeal during the time to appeal.

[00:21:21] Speaker 01:
And we understand that sometimes things happen.

[00:21:25] Speaker 00:
Can I make sure I understand your answer?

[00:21:27] Speaker 00:
You're saying not only was there no notice of appeal, there was nothing that was sent to the court other than that a payment was made.

[00:21:35] Speaker 01:
That's exactly right, Your Honor.

[00:21:38] Speaker 01:
And Mr. Wells has conceded before Your Honor's ear that payment of the filing fee standing alone is not sufficient.

[00:21:47] Speaker 01:
What Mr. Summers is asking this court to do

[00:21:50] Speaker 01:
is to essentially excuse the filing requirement altogether under the guise of a constructive filing doctrine.

[00:21:59] Speaker 01:
But it's a far different thing to waive a defect in a filing under a constructive filing theory than to waive the filing requirement altogether.

[00:22:09] Speaker 01:
That's an equitable exception to the filing requirement for

[00:22:14] Speaker 01:
inadvertence or negligence or what have you, that is foreclosed by the Supreme Court's decision in Bolz, by this Court's decisions in Marandola and Soffarelli, the statutory requirement of the timely filing is jurisdictional.

[00:22:32] Speaker 01:
There can be no equitable exceptions.

[00:22:35] Speaker 02:
Suppose the following happened.

[00:22:37] Speaker 02:
Suppose that Mr. Wells, immediately noticed that there wasn't a receipt sent back, had called the clerk's office and had gotten in touch with someone in the clerk's office of the Court of Federal Claims and said, I didn't get a receipt.

[00:22:54] Speaker 02:
And the clerk, erroneously, said,

[00:22:58] Speaker 02:
Oh, well, if you send it, we must have gotten it.

[00:23:02] Speaker 02:
And from time to time, we have a problem with our system.

[00:23:07] Speaker 02:
And yeah, I believe, again, erroneously, I believe that you did send it.

[00:23:14] Speaker 02:
And so you're OK.

[00:23:20] Speaker 02:
Would that be constructive filing in your view?

[00:23:24] Speaker 01:
It can't be, Your Honor, because that's the old theory that was embraced by the Thompson and Harris truck lines Supreme Court cases from back in the 50s or whenever, that Bowles overruled.

[00:23:39] Speaker 01:
Those cases allowed for courts to deem notices of appeal timely filed under what were considered unique circumstances, where a party performed an act improperly

[00:23:52] Speaker 01:
But they were relying on some specific assurance from a judicial officer that they gave them comfort that they had done it correctly, even though they hadn't.

[00:24:01] Speaker 02:
Do you think that Bowles overruled Houston against Lack?

[00:24:05] Speaker 01:
No, that's a different situation, Your Honor.

[00:24:07] Speaker 01:
And that's an exception that deals with prisoners, which is inapplicable here.

[00:24:14] Speaker 01:
That's also captured in one of the provisions of, I believe, section

[00:24:22] Speaker 01:
Rule 4 of the Federal Rules of Appellate Procedure has an exception along those lines as well for prisoners.

[00:24:32] Speaker 02:
But- Did that exception exist before Houston against Lack?

[00:24:36] Speaker 01:
I'm not sure, Your Honor, but- Oh, I did.

[00:24:38] Speaker 02:
But isn't there some tension between your position and your characterization of Bolts and Houston against Lack?

[00:24:47] Speaker 01:
None at all, Your Honor, because of course, balls came later.

[00:24:51] Speaker 01:
They didn't.

[00:24:54] Speaker 01:
And the rules are crystal clear under precedence.

[00:24:57] Speaker 01:
Now, I would also just, before my time expires, I just want to add that this is not a harsh result.

[00:25:05] Speaker 01:
There is built into the statute

[00:25:10] Speaker 01:
a safe harbor where if something goes wrong, we understand things happen sometimes.

[00:25:15] Speaker 01:
And a party has 30 days to recognize their error and go to the trial court and seek an extension of time.

[00:25:24] Speaker 01:
Even a modicum of diligence would have resulted

[00:25:29] Speaker 01:
in a timely motion to extend the appeal deadline.

[00:25:35] Speaker 01:
And almost certainly, we would not be here today arguing about these technicalities.

[00:25:42] Speaker 01:
But under the court's precedence and the clear statutory command, the court should affirm.

[00:25:49] Speaker 01:
Thank you.

[00:25:50] Speaker 03:
Thank you.

[00:25:59] Speaker 04:
Your Honors, may I make a couple of quick points?

[00:26:13] Speaker 04:
Mary Endola and the

[00:26:15] Speaker 04:
suffered only cases involved situations where nothing was filed.

[00:26:20] Speaker 04:
No fee, no documents, so on and so forth.

[00:26:23] Speaker 04:
Our position is we put them into the system.

[00:26:26] Speaker 04:
We still don't know why it didn't get there, but it was initially put into the system with a filing fee.

[00:26:32] Speaker 04:
We got an acknowledgment on the filing fee.

[00:26:34] Speaker 02:
But there are cases in which the filing fee was paid, but no notice of appeal was filed.

[00:26:41] Speaker 02:
And the courts, I think, uniformly have said that's not good enough.

[00:26:45] Speaker 04:
That's correct.

[00:26:45] Speaker 04:
But in the issue we're looking at as far as constructive filing, we thought it was filed.

[00:26:53] Speaker 04:
And we had some evidence to believe it was filed.

[00:26:58] Speaker 04:
And it wasn't just a matter of sending the filing.

[00:27:01] Speaker 03:
But then you have the 30 days to figure it out and to confirm that.

[00:27:05] Speaker 03:
I mean, that's, as your friend suggests, this isn't just a hard and fast, you missed your chance.

[00:27:13] Speaker 03:
I understand.

[00:27:14] Speaker 03:
So even on kind of equitable principles, this is a little different than you know.

[00:27:20] Speaker 04:
Understand.

[00:27:21] Speaker 04:
But again, I'd ask you to remember the times.

[00:27:24] Speaker 04:
Look, I just had a case at the Court of Federal Plains where I filed a complaint, didn't get the come back, didn't get the come back.

[00:27:31] Speaker 04:
Believe me, I was jumping all over him.

[00:27:33] Speaker 04:
And sure enough, it eventually came through.

[00:27:36] Speaker 04:
Now, I guess I can say I've learned from this mistake.

[00:27:41] Speaker 04:
All I can tell you is we made the attempt to file.

[00:27:44] Speaker 04:
If the filing was defective, and apparently it was defective through whatever reason, we think we still come in under the constructive filing.

[00:27:54] Speaker 04:
The problem is, Your Honors, if I messed up, is it fair to hold my client responsible for my mistake?

[00:28:03] Speaker 04:
I mean, you can chew me out.

[00:28:04] Speaker 04:
You can fine me, sanction me.

[00:28:06] Speaker 04:
I mean, I can't argue on any of that.

[00:28:09] Speaker 04:
my client was the innocent party here.

[00:28:12] Speaker 03:
The problem was that principle obviously cannot be applied because what would that do to us?

[00:28:19] Speaker 03:
I mean if it's a lawyer's fault there's maybe a mechanism in which that is resolved but it can't be by letting... But in the brief we just show where that has happened and again it's mostly in the veterans

[00:28:33] Speaker 03:
Yeah, you make a suggestion.

[00:28:34] Speaker 03:
Speaking of that, you mentioned the veterans' canon.

[00:28:38] Speaker 03:
You're not arguing that that veterans' canon, which has been applied in the veterans' context, would have some applicability in this instance.

[00:28:46] Speaker 04:
I certainly am arguing that, Your Honor.

[00:28:48] Speaker 04:
You go back to the original Boone versus Leitner.

[00:28:51] Speaker 04:
That was not a Title 38 case.

[00:28:52] Speaker 04:
That was a Title 50 case under the Service Members Civil Relief Act.

[00:28:57] Speaker 04:
There's nothing in that canon that I've seen over the decisions from Boone, Henderson, or whatever, or the Federal Circuit decisions, which were limited just to veterans benefits, Title 38 veterans benefits case.

[00:29:07] Speaker 04:
Arguably, since we're talking about some paying allowances here, those are benefits.

[00:29:13] Speaker 04:
And as counsel conceded, Mr. Summers is a veteran.

[00:29:18] Speaker 04:
If it would apply in the service members civil relief act, I learned to say that as soon as I learned how to say the statute.

[00:29:27] Speaker 04:
If it would apply in that arena, why wouldn't it apply here?

[00:29:32] Speaker 04:
And if you do apply that,

[00:29:34] Speaker 04:
You have to take any ambiguity, and we can just submit that there is ambiguity, because 2107 is not incorporated.

[00:29:41] Speaker 04:
The other thing, if you look at Bowles, now, Bowles dealt with 2107.

[00:29:45] Speaker 04:
It didn't deal with 22, 55.

[00:29:47] Speaker 04:
25, 22.

[00:29:47] Speaker 04:
25, 22.

[00:29:50] Speaker 04:
I'm going to get it yet, Judge Bryson.

[00:29:52] Speaker 04:
I'm trainable, believe it or not.

[00:29:58] Speaker 04:
Bowles didn't apply to that.

[00:30:00] Speaker 04:
And the other thing is, let's look back to the question.

[00:30:02] Speaker 04:
Is it jurisdictional?

[00:30:04] Speaker 04:
Again, going to Irwin, which was another veterans case, I agree.

[00:30:08] Speaker 04:
But it didn't seem to, the Supreme Court didn't seem to limit it to just to veterans.

[00:30:13] Speaker 03:
So what principle would you apply that 20, no, I'm forgetting, 25-22, when they underline case before the Court of Federal Claims deals with anything related to a veteran receiving any amount of money from the government

[00:30:31] Speaker 03:
then Bowles doesn't apply?

[00:30:33] Speaker 03:
Is that the rule you're advocating?

[00:30:35] Speaker 04:
Now, I'm saying that Bowles doesn't apply because statutory language doesn't set up a very clear incorporation or anything to make it look like it's jurisdictional.

[00:30:48] Speaker 04:
It's just not jurisdictional.

[00:30:49] Speaker 04:
There's nothing in statute.

[00:30:51] Speaker 03:
So you're saying yes, that your rule would be any time a veteran is implicated in terms of any

[00:30:57] Speaker 03:
claim before the Court of Federal Claims, then balls doesn't apply.

[00:31:05] Speaker 04:
Your Honor, I think that's true.

[00:31:07] Speaker 03:
Because of the veterans canon?

[00:31:09] Speaker 04:
Not just because of the veterans canon.

[00:31:10] Speaker 04:
The veterans canon just puts additional support for it.

[00:31:15] Speaker 04:
But just because of the plain language of the statute.

[00:31:18] Speaker 04:
Under Irwin.

[00:31:19] Speaker 00:
I'm not sure I understand.

[00:31:20] Speaker 00:
Are you saying 2522, because it doesn't expressly talk about 2107.

[00:31:24] Speaker 00:
There is no time limit.

[00:31:26] Speaker 00:
So therefore, there is no constant.

[00:31:29] Speaker 00:
What is?

[00:31:29] Speaker 04:
Judge, I understand.

[00:31:31] Speaker 04:
I couldn't believe that.

[00:31:32] Speaker 04:
That's not what I'm saying.

[00:31:33] Speaker 04:
What I'm saying is it makes it possible for waiver.

[00:31:37] Speaker 04:
I've still got to come up under the constructive filing doctrine and show that I meet that doctrine, because there was some different circumstances, exigent circumstances, because I did do some due diligence, and because there was a connection.

[00:31:55] Speaker 04:
If I could follow up on that.

[00:31:56] Speaker 04:
Yes, I'm sorry.

[00:31:57] Speaker 02:
I'm sorry.

[00:31:58] Speaker 02:
Go ahead.

[00:31:58] Speaker 04:
Finish your point.

[00:31:59] Speaker 04:
I'm sorry.

[00:32:00] Speaker 04:
Please, go ahead.

[00:32:01] Speaker 04:
I was finished.

[00:32:02] Speaker 04:
I'm sorry.

[00:32:03] Speaker 04:
I was just turning to answer your question while I was still talking.

[00:32:07] Speaker 02:
So just to be sure, I understand.

[00:32:09] Speaker 02:
And this is a follow-up to Judge Stoll's question.

[00:32:12] Speaker 02:
Are you suggesting that a different rule applies under 2522 than would be the case if we were under 2107?

[00:32:20] Speaker 04:
Yes, sir, because a bull's sitting out there on 2107.

[00:32:28] Speaker 04:
If you remember Judge Souter's dissent, it was a matter of they didn't really address the equitable estoppel issue as well.

[00:32:37] Speaker 04:
So it was a very close decision.

[00:32:40] Speaker 04:
I'm not sure exactly where things fall on it, but I can tell you that it does not fall to 25-22.

[00:32:47] Speaker 04:
I got that one right, Your Honor.

[00:32:50] Speaker 04:
Thank you so much.

[00:32:51] Speaker 04:
Look, I'm sorry I went over time.

[00:32:53] Speaker 04:
And Judge, nobody feels worse about this than I do.