Bertman, Doing Business as Bertman Food Products, v. J. A. Kirsch Co.

1964-06-22

Headline: Court denies review in a government contract appeal, leaving a food supplier unable to appeal against its seller after the Government’s late-filed appeal went unnotified.

Holding: The Court denied the petition for review, leaving intact lower-court rulings that Bertman could not file a timely cross-appeal because he lacked timely notice of the Government’s appeal.

Real World Impact:

Leaves lower-court ruling that late notice prevents cross-appeal in place.
Allows government appeals filed without timely notice to block related appeals.
Increases risk defendants cannot recover from third parties without timely appeal notice.

Topics: appeals procedure, notice timing, due process, contract dispute

Summary

Background

The dispute involved the United States, a food supplier (a company called Bertman), and the supplier’s seller (J. A. Kirsch Co.). The Government sued Bertman for allegedly spoiled imported tomato paste. Bertman had sued Kirsch in turn, but a jury found the paste was not defective and the court entered judgment for Bertman and against recovery from Kirsch. The Government filed a notice of appeal on the sixtieth day, but Bertman did not receive notice until after the appeal period expired.

Reasoning

The Supreme Court declined to take the case, so it did not rule on the legal question. In a dissent from the denial, Justice Black argued that Bertman was unfairly deprived of a chance to protect himself because he lacked timely notice that the Government had appealed. Black said the rules and statute should be read to allow a defendant to file an appeal within a reasonable time after receiving notice, because basic fairness and the right to be heard require notice before a party loses its appellate rights.

Real world impact

Because the Court refused review, the lower-court outcome stands: Bertman could not file a timely cross-appeal after receiving late notice. That leaves defendants who rely on timely notice at risk of losing the ability to pursue related appeals. The denial is not a Supreme Court decision on the merits and the issue could be revisited in a future case.

Dissents or concurrances

Justice Black, joined by Justices Douglas and Goldberg, provided the dissent urging that due process requires timely notice and that filing within a reasonable time after notice should be allowed.