Case: 22-1030 Document: 10 Page: 1 Filed: 04/01/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BING DU, HELEN GE,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1030
______________________
Appeal from the United States Court of Federal Claims
in Nos. 1:19-cv-01020-EGB and 1:19-cv-01021-EGB, Senior
Judge Eric G. Bruggink.
______________________
Before PROST, REYNA, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
ORDER
In response to the court’s February 3, 2022 order, the
United States urges dismissal of this appeal for lack of ju-
risdiction as untimely. Appellants’ response opposes dis-
missal.
On November 23, 2020, the United States Court of Fed-
eral Claims entered judgment, dismissing appellants’ con-
solidated complaints for lack of subject matter jurisdiction.
On December 22, 2020, appellants filed a motion seeking
Case: 22-1030 Document: 10 Page: 2 Filed: 04/01/2022
2 DU v. US
reconsideration. On February 3, 2021, the Court of Federal
Claims issued an order denying the motion. *
Appellants state that they did not receive the February
2021 order until August 23, 2021, when they contacted ap-
pellee’s counsel, who then forwarded to appellants a copy
of the order. On September 8, 2021, appellants submitted
a “Motion for Relief from Final Orders of Dismissal of
Plaintiffs’ Refund Claim” at the Court of Federal Claims.
That submission was returned to appellants unfiled. On
October 1, 2021, the Court of Federal Claims docketed from
appellants another submission entitled “Petition for Inter-
locutory Review to the United States Court of Appeals for
the Federal Circuit,” which the Court of Federal Claims
transmitted to this court as a notice of appeal.
To be timely, a notice of appeal must be received by the
Court of Federal Claims within 60 days after the entry of
the final judgment being appealed from. See
28 U.S.C.
§ 2522; Fed. R. App. P. 4(a)(1)(B). We have held that the
filing deadline for civil appeals from the Court of Federal
Claims to this court is a jurisdictional rule imposed by Con-
gress with the intent of denying this court jurisdiction once
a filing window has closed. See Marandola v. United
States,
518 F.3d 913, 914–15 (Fed. Cir. 2008); see also
Bowles v. Russell,
551 U.S. 205, 214 (2007). Thus, this
court may only consider whether appellants’ notice of ap-
peal was timely and cannot toll based on their personal cir-
cumstances. Here, appellants’ notice of appeal was filed
too late to appeal from either the November 23, 2020 judg-
ment or the February 3, 2021 order denying reconsidera-
tion.
* The decision states that it was filed on February 3,
2021, but the Court of Federal Claims’ docket shows that it
was entered on February 2, 2021.
Case: 22-1030 Document: 10 Page: 3 Filed: 04/01/2022
DU v. US 3
Appellants argue that the rejected September 2021
submission should be treated as a motion to reopen the
time to appeal pursuant to Rule 4(a)(6) of the Federal Rules
of Appellate Procedure. However, such motions must be
filed no later than 180 days after entry of the order sought
to be appealed. See Fed. R. App. P. 4(a)(6) (allowing trial
court to reopen the time to appeal when party did not
timely receive the order being appealed but only if request
was filed “within 180 days after the judgment or order is
entered or within 14 days after the moving party receives
notice . . . of the entry, whichever is earlier”). Here, appel-
lants’ submission was filed outside of that deadline.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed as untimely.
(2) Each side shall bear its own costs.
FOR THE COURT
April 1, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
