Opinion
Nos. 2007-1510, 2007-1517.
May 1, 2008.
Appeal from the United States Court of International Trade in case no. 00-00528, Judge Delissa A. Ridgway.
John M. Peterson, Michael T. Cone, Maria E. Celis, Neville Peterson LLP, New York, NY, for Plaintiff-Appellee/Plaintiff-Appellant.
Mikki Graves Walser, Department of Justice, Yelena Slepak, U.S. Bureau of Customs and Border Protection, New York, NY, for Defendant-Appellant/Defendant-Appellee.
Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
ON MOTION
ORDER
The United States moves to stay proceedings in this appeal pending disposition of the petition for rehearing en banc in Michael Simon Design, Inc. v. United States, 501 F.3d 1303 (Fed. Cir. 2007). The United States indicates that Wilton Industries, Inc. consents. The court considers whether the United States appeal, no. 2007-1510, should be dismissed.
The court denied the en banc petition in Michael Simon on April 2, 2008. Therefore, the motion to stay is moot.
The United States has previously requested and received three extensions of time, totaling 165 days, in which to file its brief. On February 20, 2008, the court granted the United States' third motion for an extension of time, until March 28, 2008, to file its brief and stated that no further extensions of time would be permitted. The court notes that the United States did not submit its brief by March 28, instead serving the motion for a stay on that date. The motion for a stay is in essence another motion for an extension of time. Further, the motion does not adequately explain why this appeal should be stayed, stating simply that "this appeal involves similar legal issues to those involved in Michael Simon." The United States also fails to attach to its motion supporting documentation such as the underlying trial court decisions in either this appeal or Michael Simon as required by Fed.R.App.P. 27(a)(2)(B) ("any affidavit or other paper necessary to support a motion must be served and filed with the motion"). Finally, on April 17, 2008, 20 days after the deadline set by the court in its February 20 order, the United States served its brief.
When the court states "no further extensions," it means it. These words are not lightly or routinely added to orders. Because the United States did not file a brief within the explicit deadline set by the court in its February 20, 2008 order and the motion to stay it filed on that date is cursory and lacks supporting argument or documentation, the appeal is dismissed. See Julien v. Zeringue, 864 F.2d 1572 (Fed. Cir. 1989) (court may dismiss for failure to file a brief).
Accordingly,
IT IS ORDERED THAT:
(1) The United States' appeal, no. 2007-1510, is dismissed.
(2) The motion to stay is moot.
(3) The revised official caption for 2007-1517 is reflected above.
(4) Each side shall bear its own costs for 2007-1510.
(5) A copy of this order shall be transmitted to the merits panel assigned to hear 2007-1517.