U.S. Not a Party for Appeals Period of Miller Act Claim

A subcontractor’s appeal of a Miller Act claim was dismissed as untimely by the Court of Appeals for the Eleventh Circuit because the government was not a party for purposes of Federal Rule of Appellate Procedure 4(a)(1), and therefore the time for filing an appeal was 30 rather than 60 days. The subcontractor filed an appeal 55 days after a federal district court issued an order staying the subcontractor’s claim for payment under the Miller Act. The payment bond surety moved to dismiss under Rule 4(a)(1)(A), which requires a notice of appeal to be filed within 30 days after entry of the judgment or order. Relying on United States Fidelity & Guaranty Co. v. U.S. fuo Kenyon (204 US 349), a 1907 decision holding the government was a real party in interest under the Heard Act—the Miller Act’s predecessor—the subcontractor argued the government was a party to the litigation, and 60-day filing period under Rule 4(a)(1)(B) applied.

Nominal Party

The Eleventh Circuit distinguished the Heard Act, which required contractors to post only one bond to protect both the government and suppliers of labor and materials, and the Miller Act, which requires two bonds: one to protect the government against failure to perform, and one to protect subcontractors. Kenyon’s rationale does not apply to a claim against a Miller Act payment bond, because “[t]he government, being safeguarded by the performance bond, ha[s] no direct interest on the payment bond.” In addition, the Miller Act’s requirement that subcontractors bring suit “in the name of the United States for the use of the person bringing the action” (40 USC 3133(b)(3)(A)) makes the government only a nominal party, which is insufficient for party status under Rule 4(a)(1)(B). The court found support for this conclusion in U.S. ex rel. Eisenstein v. New York, New York (556 US 928), in which the Supreme Court held the 60-day deadline did not apply in a qui tam False Claims Act action in which the government did not formally intervene. ( U.S. fuo Postel Erection Group, L.L.C., et al. v. Travelers Casualty & Surety Co. of America, et al., CA-11, 57 CCF ¶80,023)