              Case: 12-14405    Date Filed: 03/04/2013      Page: 1 of 7

                                                                           [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-14405
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:12-cv-00182-RBD-DAB


UNITED STATES OF AMERICA,
for the use and benefit of Postel Erection Group, L.L.C.,
POSTEL ERECTION GROUP, L.L.C.,


                                                               Plaintiffs - Appellants,

                                       versus


TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA,
FEDERAL INSURANCE COMPANY,


                                                              Defendants - Appellees,


CHUBB NATIONAL INSURANCE COMPANY, et al.,


                                                                            Defendant.
              Case: 12-14405     Date Filed: 03/04/2013    Page: 2 of 7

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (March 4, 2013)

Before BARKETT, MARTIN and KRAVITCH, Circuit Judges.

BY THE COURT:

      Travelers Casualty and Surety Company of America and Federal Insurance

Company (“Travelers”) have moved to dismiss Postel Erection Group, L.L.C’s

(“Postel”), appeal of the district court’s stay of Postel’s lawsuit seeking payment

from Travelers on a surety bond for work that it performed as a subcontractor on

the construction of a Department of Veterans Medical Center in Orlando, Florida.

Postel’s suit is brought pursuant to the Miller Act, 40 U.S.C. § 3131 et seq., which

provides a subcontractor who has supplied labor or materials on federal

government construction projects, but has not been paid, with the right to sue the

surety that provided the primary contractor with the statutorily required payment

bond. The Miller Act requires that such suits be brought “in the name of the

United States for the use of the person bringing the action.” 40 U.S.C. §

3133(b)(3)(A).

      Travelers argues that Postel’s appeal, which was not filed until fifty-five

days after the district court’s order, is untimely and must therefore, be dismissed.


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Postel responds, however, that when a lawsuit is brought in the name of the United

States as required by the Miller Act, it had sixty days in which to appeal.

      In a civil case, a notice of appeal generally “must be filed with the district

clerk within 30 days after entry of the judgment or order appealed from.” Fed. R.

App. P. 4(a)(1)(A). The time allowed is extended to sixty days when one of the

parties is the United States or its officer or agency. See Fed. R. App. P. 4(a)(1)(B).

Because “the taking of an appeal within the prescribed time is ‘mandatory and

jurisdictional,’” Bowles v. Russell, 551 U.S. 205, 209 (2007), we cannot entertain

Postel’s appeal unless the United States is a party to this litigation within the

meaning of Federal Rule of Appellate Procedure 4(a)(1)(B).

      Postel relies on United States Fidelity & Guaranty Co. v. United States for

the Benefit of Kenyon, 204 U.S. 349 (1907), which it argues established that the

United States is a real party in interest for purposes of determining the deadline to

file a notice of appeal. In Kenyon, the Court considered whether the United States

was the plaintiff in an action brought pursuant to the Heard Act, the predecessor

act to the Miller Act, for purposes of establishing jurisdiction in federal court, but

not for determining the time for filing a notice of appeal. 204 U.S. at 354. The

Court concluded that the United States was not “merely a nominal or formal

party,” id. at 356, and that an action under the Heard Act “may fairly be regarded

as one by the United States itself to enforce the specific obligation of the contractor


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to make prompt payment for labor and materials,” id. at 357. In reaching its

conclusion, the Court explained that the statutorily required bond “is not simply

one to secure the faithful performance by the contractor of the duties he owes

directly to the government in relation to the specific work undertaken by him,” but

that it also contained a “special stipulation with the United States that the

contractor shall promptly make payments to all persons supplying labor and

materials.” Id. Accordingly, the Court concluded that this payment provision of

the bond “ran to the United States, and was therefore enforceable by suit in its

name.” Id.

       Although the Court in Kenyon concluded that the United States is a real

party in interest for purposes of federal court jurisdiction under the Heard Act, we

are not persuaded that it supports the conclusion that the United States is a party in

an action brought under the Miller Act for purposes of determining the deadline for

filing a notice of appeal. We have previously explained that the Miller Act made

changes to the original Heard Act, specifically with regard to the contractor’s

obligation to post a bond. United States Fidelity & Guaranty Co. v. Hendry Corp.,

391 F.2d 13, 19 (5th Cir. 1968).1 Under the Heard Act, the contractor was

required to post only one bond, “which was to protect both the Government and the


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.
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suppliers of labor and materials.” Id. However, the Miller Act amended the statute

to require the contractor to post two bonds, “one protection [sic] the government

against failure to perform, the other protecting the subcontractor.” Id. Thus,

whereas the one bond required under the Heard Act secured not only the

contractor’s performance obligation to the government but also contained “the

specific, special obligation directly to the United States that the contractor” would

make payments to the subcontractor for labor and supplies, Kenyon, 204 U.S. at

357, under the Miller Act, “[t]he government, being safeguarded by the

performance bond, had no direct interest on the payment bond.” Hendry, 391 F.2d

at 19. Accordingly, the Court’s rationale in Kenyon for concluding that the

government is a real party in interest to a subcontractor’s claim for payment under

the Heard Act is inapplicable to a claim brought against the payment bond under

the Miller Act, and thus, does not resolve the jurisdictional question here.

      Although the Miller Act requires a subcontractor to bring suit “in the name

of the United States for the use of the person bringing the action,” 40 U.S.C.

3133(b)(3)(A), this requirement does nothing more than make the United States a

nominal party, which by itself is insufficient for party status under Rule 4(a)(1)(B).

In United States ex rel. Eisenstein v. New York, New York, 556 U.S. 928 (2009),

the Supreme Court considered whether the United States was a party to a qui tam

action under the False Claims Act (“FCA”) for purposes of the sixty-day filing


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deadline for a notice of appeal. The Court concluded that where the United States

did not formally intervene in a qui tam action under the FCA, it was not a party for

purposes of the sixty-day notice of appeal deadline, even though the FCA required

the action to be brought in the name of the United States. Eisenstein, 556 U.S. at

935. The Court explained that “[a] person or entity can be named in the caption of

a complaint without necessarily becoming a party to the action.” Id. The Court

reasoned that “Congress’ choice of the term ‘party’ in Rule 4(a)(1)(B) and §

2107(b), and not the distinctive phrase, ‘real party in interest,’ indicates that the

60–day time limit applies only when the United States is an actual ‘party’ in qui

tam actions.” Id.

      The Court’s decision in Eisenstein persuades us that the United States is not

a party under Rule 4(a)(1)(B) for purposes of Postel’s Miller Act claim. Miller Act

claims, which must be brought in the name of the United States, are not unlike qui

tam actions brought under the FCA in which the United States has chosen not to

intervene. Neither requires the United States to be an actual party to the litigation.

Because Postel does not argue that the United States has any involvement in this

case, but instead relies solely on the statutory requirement that it bring its Miller

Act claim in the name of the United States, we conclude that it was required to file

its notice of appeal within thirty days under Rule 4(a)(1)(A).




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       Accordingly, we hereby grant Travelers’ motion to dismiss this appeal for

lack of jurisdiction. 2 See Bowles, 551 U.S. at 209 (holding that the time for filing

a notice of appeal is mandatory and jurisdictional).

DISMISSED.




       2
         Travelers also filed a motion for sanctions on the grounds that Postel’s appeal is
frivolous, which we deny.
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