United Communities, LLC v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
UNITED COMMUNITIES, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2074
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01220-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: January 12, 2024
______________________
G. SCOTT WALTERS , Smith, Currie & Hancock LLP, At-
lanta, GA, for plaintiff-appellant. Also represented by
SARAH CARPENTER , Charlotte, NC.
EBONIE I. BRANCH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, D EBORAH ANN BYNUM , P ATRICIA M.
MCCARTHY .
______________________
Case: 22-2074 Document: 40 Page: 1 Filed: 01/12/2024

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UNITED COMMUNITIES, LLC v. US 2
Before REYNA, T ARANTO, and CHEN, Circuit Judges.
P ER CURIAM .
United Communities, LLC (United Communities) filed
with the United States Court of Federal Claims a motion
for extension of time to file a notice of appeal one month
after its notice of appeal should have been filed. The court
denied this motion, determining that United Communities
failed to show excusable neglect. United Communities,
LLC v. United States, 160 Fed. Cl. 591, 592–93 (2022) (Or-
der). Because we do not believe the court abused its discre-
tion in finding no excusable neglect, we affirm.
BACKGROUND
In 2006, the United States (Government) and United
Communities entered a contract in which United Commu-
nities agreed to develop and operate privatized military
housing at McGuire Air Force Base and Fort Dix,
Wrightstown, Burlington County, New Jersey. Under the
contract, United Communities agreed to cap the rent it
would charge to military families at an amount equal to
each military member’s Basic Allowance for Housing
(BAH). United Communities, LLC v. United States, 154
Fed. Cl. 676, 678 (2021). On May 1, 2020, United Commu-
nities—dissatisfied with the Secretary of Defense’s exer-
cise of statutory authority to reduce the BAH—submitted
a certified claim to the contracting officer that alleged
(1) breach of contract, (2) breach of the implied duty of good
faith and fair dealing, and (3) violation of the Takings
Clause of the Fifth Amendment to the United States Con-
stitution. Id. at 680; J.A. 40–43. The contracting officer
denied the claim in a final decision on June 29, 2020.
United Communities, 154 Fed. Cl. at 680.
After a subsequent confirmation of the contracting of-
ficer’s decision on July 8, 2020, United Communities filed
suit in the Court of Federal Claims on September 17, 2020
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UNITED COMMUNITIES, LLC v. US 3
against the Government, again alleging breach of contract,
breach of the implied duty of good faith and fair dealing,
and violation of the Takings Clause. Id. The Government
moved to dismiss the complaint under Rule 12(b)(6) of the
Rules of the Court of Federal Claims, and the Court of Fed-
eral Claims granted the motion, dismissing the complaint
with prejudice. Id. at 677–78, 685. United Communities
filed a motion for reconsideration, which the court denied
on November 18, 2021. United Communities, LLC v.
United States, 157 Fed. Cl. 19, 20 (2021).
United Communities failed to timely file with the
Court of Federal Claims its notice of appeal to our court.
The parties do not dispute that, under Federal Rule of Ap-
pellate Procedure 4(a)(1)(B), the deadline for filing a notice
of appeal was tethered to the date of the court’s denial of
United Communities’s motion for reconsideration and that
this deadline was on January 17, 2022. United Communi-
ties did not file a notice of appeal on or before this deadline.
Order, 160 Fed. Cl. at 592. Instead, United Communities’s
counsel incorrectly relied on 41 U.S.C. § 7107, which gov-
erns timing of appeals of a decision from an agency board
of contract appeals. J.A. 803.
After discovering this error, United Communities filed
a motion for extension of time to file a notice of appeal on
February 16, 2022 accompanied with a notice of appeal.
Under Federal Rule of Appellate Procedure 4(a)(5)(A), a
“district court may extend the time to file a notice of appeal
if . . . (i) a party so moves no later than 30 days after the
time prescribed by this Rule 4(a) expires; and (ii) regard-
less of whether its motion is filed before or during the 30
days after the time prescribed by this Rule 4(a) expires,
that party shows excusable neglect or good cause.” United
Communities’s notice of appeal removed jurisdiction from
the Court of Federal Claims, and we remanded the case to
the Court of Federal Claims to permit it to rule on the mo-
tion for extension of time.
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UNITED COMMUNITIES, LLC v. US 4
The Court of Federal Claims denied the motion, deter-
mining that United Communities’s failure to timely file did
not rise to the level of excusable neglect. Order, 160 Fed.
Cl. at 591–92. United Communities’s lead argument was
that the circumstances of its neglect were analogous to the
unique docketing circumstances in Cygnus Corporation,
Inc. v. United States, 65 Fed. Cl. 646 (2005), a case in which
the court previously found excusable neglect. Order, 160
Fed. Cl. at 592–93. But the court found that such unique
docketing circumstances did not exist around United Com-
munities’s neglect. Id. at 593. The court further consid-
ered the specific non-exhaustive factors articulated in
Pioneer Investment Services Co. v. Brunswick Associates
Ltd. Partnership, 507 U.S. 380 (1993), but found no excus-
able neglect because United Communities “fail[ed] to iden-
tify anything other than ‘garden-variety miscalculation’ on
counsel’s part.” Order, 160 Fed. Cl. at 593 (quoting Kansas
Gas & Elec. Co. v. United States, 111 Fed. Cl. 169, 175
(2013)). Finally, the court disposed of United Communi-
ties’s contention first raised in its reply that relied on
United States v. Brown, 133 F.3d 993 (7th Cir. 1998). Or-
der, 160 Fed. Cl. at 592 n.3. In United Communities’s view,
the reasoning in Brown established that denial of United
Communities’s motion would be overly harsh and accord-
ingly counseled in favor of granting the motion. The court
did not find this argument persuasive, explaining that
Brown was not binding on the Court of Federal Claims and,
as a criminal case, was factually distinguishable because it
implicated a different set of rights and equities than those
at issue in this civil case. Id. The court thus denied United
Communities’s motion for an extension of time for filing a
notice of appeal. Id. at 593.
United Communities timely appeals this denial. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
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UNITED COMMUNITIES, LLC v. US 5
STANDARD OF REVIEW
We review a trial court’s grant or denial of a motion to
extend time for filing a notice of appeal for an abuse of dis-
cretion. Penrod Drilling Co. v. United States, 925 F.2d 406,
408 (Fed. Cir. 1991). “To constitute an abuse of discretion,
a court must either make a clear error of judgment in
weighing relevant factors or exercise discretion based upon
an error of law.” DGR Assocs., Inc. v. United States, 690
F.3d 1335, 1340 (Fed. Cir. 2012).
D ISCUSSION
We are unpersuaded that the Court of Federal Claims
abused its discretion in denying United Communities’s mo-
tion for an extension of time to file a notice of appeal.
I. Excusable Neglect
United Communities argues that the Court of Federal
Claims failed to properly weigh the Pioneer factors. In Pi-
oneer, the Supreme Court explained that “inadvertence, ig-
norance of the rules, or mistakes construing the rules do
not usually constitute ‘excusable’ neglect . . . .” 507 U.S. at
392. According to the Supreme Court, determining
whether a party’s neglect is excusable “is at bottom an eq-
uitable one, taking account of all relevant circumstances
surrounding the party’s omission.” Id. at 395. The Su-
preme Court then endorsed certain non-exhaustive factors
including (1) the danger of prejudice to the non-moving
party, (2) the length of the delay and its potential impact
on judicial proceedings, (3) the moving party’s reason for
the delay, including whether the delay was within the rea-
sonable control of the moving party, and (4) whether the
moving party acted in good faith. Id. These factors are
commonly known as the Pioneer factors. See FirstHealth
of Carolinas, Inc. v. CareFirst of Maryland, Inc., 479 F.3d
825, 828–29 (Fed. Cir. 2007).
We do not believe the Court of Federal Claims abused
its discretion. United Communities’s motion primarily
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UNITED COMMUNITIES, LLC v. US 6
relied on a Court of Federal Claims decision—Cygnus—but
the court identified specific material differences between
the circumstances surrounding United Communities’s ne-
glect and the circumstances in Cygnus, observing that Cyg-
nus “involved the unusual circumstance that the clerk’s
office did not timely enter on the docket the order that be-
gan the appeal clock.” Order, 160 Fed. Cl. at 593. United
Communities, the court explained, “identified no such fac-
tor that contributed to its delay in this case that is ‘outside
the ordinary course.’” Id. (quoting Cygnus, 65 Fed. Cl. at
649). The court additionally considered each Pioneer factor
and, despite finding little prejudice to the Government and
little threat to judicial administration, concluded that
United Communities’s failure to identify any reason be-
sides counsel’s erroneous understanding of the law
weighed in favor of denial. Id.
United Communities argues that the Court of Federal
Claims’s excusable-neglect analysis failed to consider the
harshness of depriving United Communities of the right to
appeal the dismissal. But under the circumstances, we be-
lieve the court’s response to this argument did not amount
to an abuse of discretion. It reasoned that the rights and
equities at issue in Brown, a criminal case, were distin-
guishable from the rights and equities implicated in the
present civil case. Id. at 592 n.3. Instead, following its
Kansas Gas decision, the court explained that United Com-
munities “fail[ed] to identify anything other than ‘garden-
variety miscalculation’ on counsel’s part.” Id. at 593 (quot-
ing Kansas Gas, 111 Fed. Cl. at 175). Considering United
Communities’s limited presentation of its argument to the
Court of Federal Claims, we conclude it has failed to show
that the court abused its discretion.
Furthermore, we are not persuaded that the other
cases that United Communities raises for the first time on
appeal establish that the Court of Federal Claims abused
its discretion. Appellant’s Br. 19–20 (first citing Feeder
Line Towing Serv., Inc. v. Toledo, P. & W. R. R. Co., 539
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UNITED COMMUNITIES, LLC v. US 7
F.2d 1107 (7th Cir. 1976); and then citing Treasurer, Trus-
tees of Drury Indus., Inc. Health Care Plan & Tr. v. Goding,
692 F.3d 888 (8th Cir. 2012)). In Feeder Line, the Seventh
Circuit determined the district court did not abuse its dis-
cretion in finding excusable neglect based on counsel’s mis-
taken understanding of “clearly conflicting language of two
provisions of the law” with respect to the deadline for filing
a notice of appeal. 539 F.2d at 1109. And in Treasurer, the
Eighth Circuit similarly determined that the district court
did not abuse its discretion in finding excusable neglect
based on a computer error in counsel’s calendaring system.
692 F.3d at 893. These cases, however, are factually dis-
tinguishable. Here, United Communities explained that
its calendaring error was due to counsel’s misplaced reli-
ance on their experience with appeals from a different tri-
bunal, not due to conflicting language in the law or a
computer error. Order, 160 Fed. Cl. at 592. Moreover, it is
worth noting that in these decisions as well as in Brown,
the appellate courts did not reverse any trial court rulings
but instead deferred to the trial courts, given the latitude
they are accorded under the applicable standard of review.
In sum, we do not believe the Court of Federal Claims
abused its discretion in finding no excusable neglect.
II. Good Cause
United Communities alternatively alleges that the
Court of Federal Claims legally erred in refusing to analyze
whether good cause justified the delay. We agree with the
court that “[i]n substance, however, [United Communi-
ties]’s argument [before the Court of Federal Claims] ad-
dresse[d] only excusable neglect.” Id. at 592 n.2. Having
addressed United Communities’s substantive arguments,
which were all directed to excusable neglect, the court did
not abuse its discretion by not separately addressing
United Communities’s bare references to good cause. To
the extent United Communities argues that we should find
good cause for the first time on appeal, we decline to do so.
See Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288,
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UNITED COMMUNITIES, LLC v. US 8
1296 (Fed. Cir. 2009) (deeming a “skeletal or undeveloped
argument” presented to the district court to be waived on
appeal).
CONCLUSION
We have considered United Communities’s remaining
arguments and find them unpersuasive. While we are
sympathetic to United Communities’s situation, we cannot
find a sufficient reason to displace the discretion of the
Court of Federal Claims in denying United Communities’s
motion for extension of time. For the foregoing reasons, we
affirm the denial of the Court of Federal Claims.
AFFIRMED
Case: 22-2074 Document: 40 Page: 8 Filed: 01/12/2024

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