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Travel Centre v. Barram

November 8, 1999


Before Mayer, Chief Judge, Archer, Senior Circuit Judge, and Lourie, Circuit Judge.

The opinion of the court was delivered by: Per Curiam

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.


Travel Centre appeals from the decision of the General Services Administration Board of Contract Appeals denying its application for attorney fees and expenses under the Equal Access to Justice Act, 5 U.S.C. § 504 (1994) ("EAJA"). See Travel Centre v. General Servs. Admin., No. 14218-C (GSBCA Aug. 3, 1998) reconsideration denied (Sept. 3, 1998), full Board consideration denied (Oct. 15, 1998). Because Travel Centre failed to timely appeal to this court, we dismiss for lack of jurisdiction.


In 1995, Travel Centre and the GSA entered into a contract for the establishment and operation of a travel management center for federal agencies in Maine and New Hampshire. In 1996, the Contracting Officer terminated the contract for default and also made a demand for money due under the contract. Travel Centre appealed those actions, which appeals were docketed as GSBCA Nos. 13784 and 14056. Travel Centre also filed a breach of contract claim against the GSA. That claim was docketed as GSBCA No. 14057. The GSA thereafter changed its termination for default to one of convenience and the Board subsequently dismissed appeals 13784 and 14056 as moot. See Travel Centre, No. 13784 (GSBCA May 7, 1997). After appeals 13784 and 14056 were dismissed, Travel Centre filed an EAJA application for fees and expenses stemming from those appeals.*fn1 See Travel Centre, No. 14218-C. The Board denied Travel Centre's EAJA claim on August 3, 1998, holding that Travel Centre was not entitled to fees because, although the GSA abandoned its termination for default and its demand for money due, its positions with respect to those actions were substantially justified. See id. Travel Centre appealed to this court on March 25, 1999.

Travel Centre argues that the Board erred in its determination that the government's positions in terminating the contract for default and in demanding payment for money due under that contract were substantially justified. The government responds that this court lacks jurisdiction to consider Travel Centre's appeal because Travel Centre failed to appeal to this court within the time prescribed by 5 U.S.C. § 504(c)(2). In reply, Travel Centre asks that the limitations period be equitably tolled because it thought the time for appeal was 120 days.

We agree with the government that we lack jurisdiction over Travel Centre's appeal. Whether we have jurisdiction to adjudicate a particular appeal is a question of law. See Palmer v. Barram, 184 F.3d 1376, 1377 (1999). Section 504(c)(2) provides:

If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a) [which includes board of contract appeal decisions], that party may, within 30 days after the determination is made, appeal the determination to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. 5 U.S.C. § 504(c)(2) (1994).

Section 504's limitations period is jurisdictional. See Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998); J-I-J Constr. Co., Inc. v. United States, 829 F.2d 26, 29 (Fed. Cir. 1987). As pointed out, supra, the Board's final decision denying fees was issued on August 3, 1998. Although Travel Centre filed motions for reconsideration and for full Board consideration, its appeal to this court did not arrive within 30 days of either the Board's decision or the denials of Travel Centre's motions and was therefore untimely.

Furthermore, the equitable tolling of a statute of limitations is generally found to occur only when a claimant files a defective pleading during the statutory period or is induced or tricked by his adversary's misconduct into allowing a filing deadline to pass. See Bonneville Assocs. v. Barram, 165 F.3d 1360, 1365 (Fed. Cir. 1999); Bailey v. West, 160 F.3d 1360, 1364 (Fed. Cir. 1998) (en banc). It is inapplicable when a claimant fails to exercise due diligence in preserving his or her legal rights. See id. In this case, Travel Centre failed to timely appeal due to its own negligence. The fact that Travel Centre may have believed the proper limitations period to be 120 days is inconsequential, as neither statute nor case law tolls the limitations period on account of mistaken belief. The limitations period therefore cannot be tolled.

Since this court has no jurisdiction over Travel Centre's appeal, the ...

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