**United States Court of Appeals for the Federal Circuit**

04-1035

UNITED STATES,

> Plaintiff-Appellant,

v\.

INN FOODS, INC.,

> Defendant-Appellee.

[Michael S. Dufault]{.underline}, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice, of
Washington, DC, argued for plaintiff-appellant. With him on the brief
were [Peter D. Keisler]{.underline}, Assistant Attorney General; [David
M. Cohen]{.underline}, Director; and [Patricia M. McCarthy]{.underline},
Assistant Director.

[Robert Scott Whiteley]{.underline}, Horton, Whiteley & Cooper, of
Oakland, California, argued for defendant-appellee. With him on the
brief was [Craig A. Mitchell]{.underline}, of Newport Beach, California.

Appealed from: United States Court of International Trade

Senior Judge Nicholas Tsoucalas

**United States Court of Appeals for the Federal Circuit**

04-1035

UNITED STATES,

> Plaintiff-Appellant,

v\.

INN FOODS, INC.,

> Defendant-Appellee.
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> DECIDED: September 13, 2004
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before NEWMAN, RADER, and BRYSON, [Circuit Judges]{.underline}.

BRYSON, [Circuit Judge]{.underline}.

The government appeals the decision of the Court of International Trade
dismissing the government's complaint against Inn Foods, Inc., as
time-barred. [United States v. Inn Foods, Inc.]{.underline}, 264 F.
Supp. 2d 1333 (Ct. Int'l Trade 2003); [United States v. Inn Foods,
Inc.]{.underline}, 276 F. Supp. 2d 1359 (Ct. Int'l Trade 2003) (denying
motion for reconsideration). Because we conclude that the complaint was
filed within the period permitted by Inn Foods' waiver of the statute of
limitations, we reverse.

I

The government filed suit against Inn Foods on December 14, 2001,
alleging that Inn Foods deprived the government of duties on imported
produce through the use of false importation documents, in violation of
19 U.S.C. § 1592. The government alleged that, from January 22, 1987, to
January 19, 1990, the price of the produce declared by Inn Foods was
less than Inn Foods and its importer, Seaveg, Ltd., actually paid for
the produce.

Under 19 U.S.C. § 1621, the government had five years within which to
bring an action against Inn Foods. That statute provides, in pertinent
part:

> \[I\]n the case of an alleged violation of section 1592 or 1593a of
> this title, no suit or action (including a suit or action for
> restoration of lawful duties under subsection (d) of such sections)
> may be instituted unless commenced within 5 years after the date of
> the alleged violation or, if such violation arises out of fraud,
> within 5 years after the date of discovery of fraud . . . .

At the government's request, Inn Foods agreed to waive the statute of
limitations for a two-year period commencing on December 15, 1993. Inn
Foods subsequently agreed to three additional two-year extensions of the
waiver of the limitations period commencing on the 14th day of December
in 1995, 1997, and 1999. With respect to the final two-year period, Inn
Foods executed a waiver that provided:

> Inn Foods, Inc. hereby waives the period of limitations contained in
> Title 19, United States Code, Section 1621 . . . for a period of TWO
> YEARS, commencing on December 14, 1999.

The government filed its complaint against Inn Foods in the Court of
International Trade on December 14, 2001. Inn Foods moved to dismiss the
complaint as time-barred, asserting that its waiver of the statute of
limitations expired on December 13, 2001, one day prior to the filing
date of the complaint. The government argued that the waiver expired on
the anniversary of the commencement date of the waiver, pursuant to
Court of International Trade Rule 6(a) and the decision in [United
States v. Neman Bros. & Associates]{.underline}, 777 F. Supp. 962 (Ct.
Int'l Trade 1991). The trial court agreed with the government that if
the statutory limitations period were in issue, Rule 6(a) would apply
and a filing on the anniversary date of the event from which the
limitations period ran would be timely. The court refused to apply Rule
6(a) to the waiver of the limitations period, however. Instead, the
court concluded that the plain meaning of the waiver document required
that it be interpreted to mean that the waiver period "was to begin on
December 14, 1999, and expired at 11:59 p.m. on December 13, 2001 (two
years from the effective date of the waiver)."

In support of its interpretation of the waiver, the trial court
concluded that Customs had a policy of counting the first day of any
waiver period when computing the length of that waiver. The policy
referred to by the court was stated in a Treasury Decision that
provided:

> Customs has adopted a policy permitting offers by a party to "waive"
> the statute of limitations for a period of not less than two years. It
> should be noted that the two-year period ordinarily commences from the
> date of the waiver, unless another commencement date is specified by
> the waiving party.

Treas. Dec. No. 90-11, 55 Fed. Reg. 3682 (Feb. 2, 1990).

The trial court distinguished [Neman]{.underline} and several court of
appeals opinions on the ground that they did not address the question
whether Rule 6(a) of the Federal Rules of Civil Procedure or the Rules
of the Court of International Trade is applicable to a waiver agreement
that designates the day on which the waiver period begins to be counted.

The government moved the trial court for reconsideration, seeking to
introduce documents that, according to the government, showed that Inn
Foods understood the waiver to extend until December 14, 2001. The trial
court refused to consider those documents, because the government had
failed to introduce them prior to its motion for reconsideration and had
not alleged that the documents were newly discovered.

II

The government argues that the trial court should have followed the
earlier decision of the Court of International Trade in [United States
v. Neman Bros. & Associates]{.underline}, 777 F. Supp. 962 (Ct. Int'l
Trade 1991). In [Neman]{.underline}, the defendants waived the
limitations period in 19 U.S.C. § 1621 for "one (1) year commencing
August 1, 1988." [Id.]{.underline} at 963. The court in
[Neman]{.underline} concluded that "\[b\]ecause Rule 6(a) of this Court
is analogous to Fed. R. 6(a), and other precedent holds that the time
computation method used in Fed. R. 6(a) applies to waivers, then the
'anniversary' method will be used in this case." [Id.]{.underline} at
964. Applying the "anniversary" method, the [Neman]{.underline} court
concluded that "\[t\]he waiver period included August 1, 1989," the
anniversary of the date on which the limitations period commenced.
[Id.]{.underline}

Inn Foods acknowledges that the anniversary method of calculating the
limitation period set forth in Rule 6(a) would apply to the underlying
statute of limitations, but argues that it should not apply to the
waiver of the statute of limitations at issue in this case. According to
Inn Foods, the plain meaning of the waiver language, "for a period of
TWO YEARS, commencing on December 14, 1999," contemplates that in
counting the two-year period, the first day, December 14, 1999, is to be
counted. If the first day is counted, the two-year period would expire
on December 13, 2001.

Court of International Trade Rule 6(a), on which the [Neman]{.underline}
court relied, provides:

> \(a\) Computation. In computing any period of time prescribed or
> allowed by these rules, by order of the court, or by any applicable
> statute, the day of the act, event, or default from which the
> designated period of time begins to run shall not be included. . . .

That Rule is identical to Federal Rule of Civil Procedure 6(a) in all
relevant respects.

Both rules identify two separate points in time---the day of the event
that triggers the running of a time period, and the day on which the
time period begins to be counted. The rules provide that the time period
begins to be counted on the day following the day of the event that
triggers the beginning of the time period. Applying that counting method
to this case would require us to conclude that the waiver began on
December 14, 1999, but the counting of the two years did not begin until
December 15, 1999. The final day of the waiver would then be December
14, 2001, the anniversary of the beginning of the waiver.

The parties agree that if the issue in this case were the method to be
used for counting a statutory limitations period, Rule 6(a) would govern
and the anniversary method of counting would be applied. Other courts
concur, and the counting method of Federal Rule 6(a) has been applied in
a variety of statutory contexts. For example, in [Patterson v.
Stewart]{.underline}, 251 F.3d 1243, 1246 (9th Cir. 2001), quoting
[Union Nat'l Bank v. Lamb]{.underline}, 337 U.S. 38, 41 (1949), the
court wrote: "Rule 6(a) is widely applied to federal limitations
periods. The Supreme Court has held that because Rule 6(a) had the
concurrence of Congress, it can apply to 'any applicable statute' in the
absence of contrary policy expressed in the statute." [See
also]{.underline} [Am. Canoe Ass'n, Inc. v. City of
Attalla]{.underline}, 363 F.3d 1085, 1086 (11th Cir. 2004) ("This
circuit has long recognized as a general policy a legislative intent to
apply Rule 6(a) to all federal statutes enacted or amended after the
adoption of Rule 6(a). That policy generally prevails unless the statute
in question itself reflects a contrary intent."); [Bronaugh v.
Ohio]{.underline}, 235 F.3d 280, 284 (6th Cir. 2000); [Lawson v. Conyers
Chrysler, Plymouth, and Dodge Trucks, Inc.]{.underline}, 600 F.2d 465,
466 (5th Cir. 1979) ("This court has consistently used Rule 6(a)'s
method for computing federal statutory time limitations."). [See
generally]{.underline} 4A Charles Alan Wright & Arthur R. Miller,
[Federal Practice and Procedure]{.underline} § 1163 (2d ed. 1987).

For purposes of choosing the method to use in computing time, we see no
reason to treat a waiver of a statute of limitations, which is
effectively a consensual extension of the limitations period, any
differently than the underlying statute of limitations itself. [See,
e.g.]{.underline}, [United States v. Guldman]{.underline}, No. 03-00047
(Ct. Int'l Trade Apr. 28, 2004) ("The court has long analogized the
computation of effective dates of statute of limitations waivers with
the computation of the limitation periods themselves.").

Statutes of limitations (and waivers thereof) use a variety of verbal
formulas to describe the starting date for the limitations period, such
as "beginning on," "within one year from," "after," "within two years
after," or "from" a specified date. In each of those instances, as in
the case before us, the starting date of the limitations period is
clearly specified. However, it is often the case, and it is the case
here, that the expiration date of the limitations period is not
explicitly provided. Thus, "\[t\]he harder question is when the
\[limitations period\] ends." [United States v. Marcello]{.underline},
212 F.3d 1005, 1008 (7th Cir. 2000).

Technically, if a two-year period commences as of an event that occurs
at, for example, 3 p.m. on January 1, 2003, the two-year period will end
at 2:59 p.m. on January 1, 2005. For that reason, using the "calendar
method" of counting that Inn Foods advocates, which would count the day
on which the limitations period commences, and would have the
limitations period end on December 31, 2004, would result in a period of
less than two years. The "calendar method" therefore does not provide an
inherently more accurate gauge of the two-year period than the
"anniversary method," even if the counting of the limitations period is
considered to start at the time of the "beginning" or "commencement" of
that period. The obvious practical advantage of either counting method
over the more precise method is to avoid the need to inquire as to the
exact time of day that the triggering event occurred, something that
would often be difficult to ascertain.

As the Seventh Circuit has explained, "\[b\]oth the calendar-year and
the anniversary method are reasonable---what matters is establishing an
unequivocal rule that lets litigants know where they stand and spares
judges from becoming enmeshed in such nitpicking in the future."
[Marcello]{.underline}, 212 F.3d at 1009-10. Rule 6(a) provides a means
to avoid the confusion that arises in distinguishing between the event
that triggers the beginning of a time period and the day on which the
counting begins. "Because courts do not have stopwatches in hand when
deadlines draw near, and because the anniversary date is clear and
predictable and therefore easier for litigants to remember, for lawyers
to put in their tickler files, and for courts to administer," the
anniversary rule of Rule 6(a) is a sensible default rule.
[Marcello]{.underline}, 212 F.3d at 1010; [accord]{.underline}
[Patterson]{.underline}, 251 F.3d at 1246 ("We are satisfied that Rule
6(a) provides a reasonable basis for determining the appropriate ending
of the grace period. . . . \[T\]he 'anniversary method' of Rule 6(a) has
the advantage of being easier for petitioners, their attorneys and the
courts to remember and apply.").

Inn Foods does not take issue with any of those propositions, but argues
that when the plain terms of a waiver depart from the method of
computation dictated by Rule 6(a), there should be no presumption that
the Rule's computation method applies. We agree, of course, that a
waiver of the statute of limitations, like the statute of limitations
itself, can be drafted to require a different method of computation than
that specified in Rule 6(a). [See]{.underline} [Am. Canoe
Ass'n]{.underline}, 363 F.3d at 1086 ("This policy \[of applying Federal
Rule 6(a)\] generally prevails unless the statute in question itself
reflects a contrary intent."). The question in this case is thus whether
the Inn Foods waiver expressed an intention to use a computation method
different from that set forth in Rule 6(a).

The waiver in question here waived the limitations period "for a period
of two years, commencing on December 14, 1999." The language of Rule
6(a) is instructive in construing the language of the waiver. Rule 6(a)
provides that "the day of the act, event, or default from which the
designated period of time begins to run shall not be included." Although
the wording of the Inn Foods waiver differs from that of Rule 6(a), the
message it conveys is essentially the same. The Inn Foods waiver
specifies a period that "commenc\[es\] on" a certain date, while Rule
6(a) specifies a period of time that "begins to run \[from\]" a certain
date. Both phrases identify a starting date, the waiver identifying a
"commencing" date and the Rule identifying a "begin\[ning\]" date.
Because Rule 6(a) sets forth the default rule for computing the ending
date of a limitations period, a limitations statute or waiver must have
language that is clearly distinguishable from that of Rule 6(a) if it is
to be construed to require a different counting method. In this case,
the language of the waiver is quite close to that of the Rule and
therefore is governed by the counting method dictated by the Rule.

Other courts of appeals have reached a similar conclusion with respect
to limitations language similar to the language at issue in this case.
Thus, for example, courts that have addressed the applicability of
Federal Rule 6(a) to the statute of limitations in the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), which provides that the
"limitation period shall run from" a certain date, have uniformly
adopted the anniversary method of computation. [See]{.underline}
[Mickens v. United States]{.underline}, 148 F.3d 145, 148 (2d Cir.
1998); [Hernandez v. Caldwell]{.underline}, 225 F.3d 435, 439 (4th Cir.
2000); [Flanagan v. Johnson]{.underline}, 154 F.3d 196, 202 (5th Cir.
1998); [Bronaugh v. Ohio]{.underline}, 235 F.3d 280, 284 (6th Cir.
2000); [United States v. Marcello]{.underline}, 212 F.3d 1005, 1009-10
(7th Cir. 2000); [Moore v. United States]{.underline}, 173 F.3d 1131,
1135 (8th Cir. 1999); [Patterson v. Stewart]{.underline}, 251 F.3d 1243,
1246 (9th Cir. 2001). The [Patterson]{.underline} court explained that
"AEDPA does not provide an alternative method for computing time
periods, and Congress has not otherwise expressed an intent to preclude
the application of Rule 6(a)." 251 F.3d at 1246.

The AEDPA cases provide strong support for the government's argument
that the waiver in this case should be construed in accordance with the
anniversary method of Rule 6(a). The words "run\[ning\] from" and the
words "commencing on" seem quite similar for purposes of determining how
they should be construed for counting purposes. Both expressions denote
the day on which the limitations period begins, but neither specifically
identifies the day on which to start counting the limitations period or
the day on which the limitations period ends. Yet because the
limitations statute in the AEDPA, like the language in the waiver in
this case, is silent as to the day on which to start counting the
limitations period, the courts have looked to the computation method of
Rule 6(a). We think the same approach is appropriate here.

The only contrary authority we have discovered is the Fifth Circuit's
decision in [Federal Deposit Insurance Corp. v. Enventure
V]{.underline}, 77 F.3d 123, 125-26 (5th Cir. 1996). In that case, the
Fifth Circuit held that a statute that referred to the limitations
period as "beginning on \[a certain\] date" reflected an intention to
apply a counting method different from that of Federal Rule 6(a). The
[Enventure V]{.underline} court explained that:

> The phrase "within one year" is vague as to when the limitations
> period is to begin and end and thus the court properly applied Rule
> 6(a) in determining the calculation of the limitations period. Such is
> not the case with the phrase "beginning on the date" which provides a
> specific reference to the beginning of the limitations period.

[Id.]{.underline} at 125. The court concluded that "\[t\]he use of the
word 'on' is clear and creates a more specific rule which overrides the
application of Rule 6(a)." [Id.]{.underline} at 126. With respect,
however, we believe the [Enventure V]{.underline} decision misses the
point. It is true that the language "beginning on" a certain date
provides a specific reference to the beginning of the limitations
period. But it does not state the ending date of the limitations period.
Nor does it imply that the counting of the limitations period would be
done differently than is specified in Rule 6(a), in which the starting
date of the limitations period is not counted. The distinction between
the starting date of the limitations period and the first day counted is
illustrated by [Sain v. City of Bend]{.underline}, 309 F.3d 1134,
1136-37 (9th Cir. 2002), in which the court held that "Rule 3 of the
Federal Rules of Civil Procedure \['A civil action is commenced by
filing a complaint with the court'\] tells us when the action
'commences' for purposes of the statute of limitations, and . . . Rule
6(a) tells us how to compute the time for purposes of Rule 3." The
[Sain]{.underline} court explained: "Because Rule 3 tells us when this
action commences, Rule 6(a) applies, telling us how to compute 'any
period of time prescribed or allowed by these rules.'" [Id.]{.underline}
at 1138.

The decision in [Enventure V]{.underline} appears to be an anomaly.
Moreover, it has been questioned by a later panel of the Fifth Circuit,
which pointed out that [Enventure V]{.underline} appears to be
inconsistent with an earlier decision of the same circuit.
[See]{.underline} [Flanagan v. Johnson]{.underline}, 154 F.3d 196, 202
n.4 (5th Cir. 1998) ("We note that [Enventure V]{.underline} appears to
be the only published case in our Circuit rejecting application of Rule
6(a) to a federal statutory limitation period. Moreover, the Court's
holding in [Enventure V]{.underline}, that Rule 6(a) does not apply to
the limitation provision in § 1821(d) of the Financial Institutions
Reform, Recovery, and Enforcement Act (FIRREA), is in at least potential
conflict with the Court's implicit application of Rule 6(a) to the same
provision in [FDIC v. Bledsoe]{.underline}, 989 F.2d 805, 811-12 (5th
Cir. 1993)."). In [Bledsoe]{.underline}, the Fifth Circuit concluded
that "\[a\]s the six year period began running on December 19, 1985, the
FDIC's claim filed on December 18, 1991, was filed one day before the
expiration of the limitations period, and thus was timely filed." 989
F.2d at 809. We therefore do not regard [Enventure V]{.underline} as
persuasive authority supporting the result reached by the trial court in
this case.

The trial court relied heavily on the Customs Service policy set forth
in Treasury Decision No. 90-11, 55 Fed. Reg. 3682 (Feb. 2, 1990), which
provides that "the two-year period ordinarily commences from the date of
the waiver, unless another commencement date is specified by the waiving
party." The trial court's reliance is misplaced, however. The Customs
policy states Customs' position as to the beginning date of a waiver.
But it says nothing about Customs' position regarding the date on which
counting should begin, nor does it suggest that the starting date for
counting the limitations period should differ from the general rule set
forth in Rule 6(a). Thus, the policy provides no support for selecting
the counting method chosen by the trial court in this case.

In sum, statutes of limitations and waivers often identify the date on
which a time period starts, but not the date on which the period ends.
To avoid the confusion of choosing between two reasonable approaches for
calculating the end date of the period---the anniversary method or the
calendar-year method---courts have chosen to follow the guidance of Rule
6(a) absent clear language to the contrary in the statute or waiver in
question. We adopt that approach. In the absence of evidence that the
parties intended otherwise, a waiver of the statute of limitations that
specifies only the starting date of the designated period should be
construed to adopt the calculation method of Rule 6(a). Under that
approach, the Inn Foods waiver expired on December 14, 2001.

[REVERSED AND REMANDED]{.underline}.