# In the United States Court of Federal Claims

No. 04

- 99 C (Fi led: May 20 , 2013 )

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*

KANSAS GAS AND ELECTRIC * COMPANY, et al.
, * Bill of Costs; RCFC 54; Motion to

* Enlarge Time for Filing, Nunc Pro Plaintiff, * Tunc ; RCFC 6; Excusable Neglect;

* Miscalculation of Deadline

v. *

* THE UNITED STATES, *

*

Defendant. *

*

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ORDER

On February 6, 2013, Plaintiffs Kansas Gas and Electric Company, Kansas City Power & Light Company, and Kansas Electric Power Cooperative, Inc.

, submitted a Bill

of Costs (“BOC”) , p ursuant to Rule 54(d)(1)(A) of the Rules of the United States Court of Federal Claims (“RCFC”), 28 U.S.C. § 2412(a), and 28 U.S.C § 1920, in this spent nuclear fuel litigation. The total amount sought, for such expenses as fees of the Clerk of Court, hear ing and trial transcripts, deposition transcripts, and duplication of trial exhibits, is $41,626.43.

On February 13, 2013, Defendant filed a “Motion to Dismiss Plaintiffs‟ Untimely Bill of Costs,” noting that the trial court had not awarded costs to Plai ntiffs either in its original judgment or in its amended judgment and that Plaintiffs had failed to challenge the lack of an award of costs in their appeal to the United States Court of Appeals for the Federal Circuit. More significantly, Defendant argued that, “even had plaintiffs been awarded costs, its [sic] bill of costs was filed outside the time period permitted by the

court‟s r ules, and thus its bill of costs should be dismissed as untimely.” 1 Def.‟s Mot. to Dismiss Pls.‟ Untimely Bill of Costs (“D ef.‟s Mot.”). Specifically, Defendant asserte d

that Plaintiffs‟ BOC was due no later than January 30, 2013, but was filed “at least a

week late.” Def.‟s Mot. at 5.

Defendant filed a Corrected Motion to Dismiss Plaintiffs‟ Untimely Bill of Costs (“Def. ‟s Corrected Mot.”) a few hours later on the same date, February 13, 2013,

1 Defendant nevertheless requested the opportunity to challenge Plaintiffs‟ requested costs in the event that

the c ourt determined that Plaintiffs‟ BOC was filed properly and timely.- 2

-

asserting that the due date for the BOC was February 1, 2013, and was thus at least five days late. Defendant had inadvertently failed to recognize in its calculation of the due

da te that December 31, 2012, was a court holiday.

In their response, Plaintiffs acknowledged that their BOC “should have been filed three business days before it was” and moved for an enlargement of time, through February 6, 2013, nunc pro tunc , for its filing

.

The issues before the court, therefore, are two

- fold: whether to grant Plaintiffs‟

after

- the

- fact request for an enlargement of time for the filing of its BOC in the first place and, if so, whether to award costs to Plaintiffs.

For the reasons stated below, the court grants Defendant‟s motion to dismiss and denies Plaintiffs‟ motion for an enlargement of time

.

I. Background

This spent nuclear fuel case was filed on January 28, 2004, and assigned to the

Honorable Christine O. C. M iller. Judge Miller conducted the case through trial and, in an opinion issue d on November 30, 2010, awarded the three Plaintiffs a combined total of $10,632,454.83, distributed proportionately according to their ownership interest s in the

Wolf Creek Gene rating Station, a single

- unit nuclear reactor located in Coffey County, Kansas. Judgment was entered by the Clerk of Court on December 1, 2010.

Plaintiffs appealed the judgment to the Federal Circuit in January 2011 and the

United States cross

- appealed. The Federal Circuit issued its decision on July 12, 2012, affirming

- in

- part and reversing

- in

- part the judgment of the trial court. Kansas Gas and

Electric Co. v. United States , 685 F.3d 1361 (Fed. Cir. 2012). In particular, the appellate

court reversed the trial court‟s refusal to accept the Plaintiffs‟ methods for calculating overhead costs, but otherwise affirmed the remainder of the trial court‟s decision. Id . at
1371

. The Government sought a panel rehearing of the decision on the overhead issue, but its petition for rehearing was denied on October 1, 2012. The mandate of the Federal Circuit was issued and docketed on October 10, 2012

. The Federal Circuit, however,

did not formally remand the case to the trial court.

Nevertheless, on October 11, 2012, the trial court ordered the parties to file a Joint Status Report (“JSR”) by November 13, 2012, “proposing a schedule for further proceedings on remand.” In their JSR, filed October 26, 2012, the parties reported that “resolution of the parties‟ appeals is unambiguous regarding the appropriate course for this Court.” “[T]his Court need only issue a revised judgment that includes the overhead amounts disallowed for each plaintiff in its initial decision.” The parties then jointly

calculated the additional damages that should be awarded to each of the three plaintiffs and proposed that a revised judgment should be entered accordingly.

Thus, on October 26, 2012, the trial court entered an order directing the Clerk of Court “to modify the judgment to reflect a revised judgment for plaintiffs in the amount- 3

-

of $12,685,015.94,” allocated among the plaintiffs in specified amounts. On November
1, 201 2, the Clerk of Court entered the amended judgment , allocating $5,961,957.49 apiece to Plaintiffs Kansas Gas & Electric Co. and Kansas City Power & Light Co. and $761,100.96 to Plaintiff Kan sas Electric Power Cooperative.

Plaintiffs filed their BOC on February 6, 2013; Defendant filed its Motion to Dismiss and its Corrected Motion to Dismiss on February 13 , 2013. Plaintiffs filed their response, including their “Motion to Enlarge the Time for Filing Their Bill of Costs,” on February 25, 2013. Final briefing ended in March 2013.

On February 28, 2013, however, Judge Miller retired from the Court. This ca se was assigned to the undersigned on April 10, 2013.

II. Discussion

Judge Miller neither awarded nor denied the recovery of costs to Plaintiffs in either her initial judgment or her revised judgment. Given that she did not make a determination regarding c osts one way or the other, the Court here will not endeavor to divine what, if anything, she may have int ended, but rather will decide this matter anew.

RCFC 54(d)(1) provides: “Costs

– other than attorney‟s fees

– should be allowed to the prevailing par ty to the extent permitted by law. See 28 U.S.C. § 2412(a).” (emphasis added). Section 2412 , the Equal Access to Justice Act (“EAJA”), in turn generally provides, in relevant part, that a judgment for costs, not including attorney‟s
fees, “ may be awarde d ” to the prevailing party in a civil action against the United States. 28 U.S.C. § 2412(a)(1) (emphasis added). The Federal Circuit has explained that a plaintiff “prevails” when it obtains actual relief on the merits that “„materially alters the legal relationship between the parties by modifying the defendant‟s behavior in a way that directly benefits the plaintiff.‟” Neal & Co., Inc. v. United States , 121 F.3d 683, 685 (Fed. Cir. 1997) (quoting Farrar v. Hobby , 506 U.S. 103, 111

- 12 (1992)). “[A] par ty may prevail without winning a complete victory or fully recovering its requested damages.” Id . The Government here has not disputed that Plaintiffs qualify as prevailing parties.

Both Plaintiffs and Defendant acknowledge that the court has considerable discretion to award costs, although they disagree whether there is a presumption in favor of doing so. “Although that standard connotes a degree of discretion in the trial court on the issue, the standard clearly favors th e award of costs.” Pls.‟ Resp. to the Government‟s Mot. to Dismiss at 2 (citing First Fed. Sav. and Loan Ass’n. of Rochester

v. United States , 88 Fed. Cl. 572, 597 (2009). “[T]his Court has wide discretion to decide whether or not to award costs and [] there is no presumption that costs should be awarded to the prevailing party in a case involving the United States.” Def.‟s Reply in Support of its Mot. to Dismiss Pls.‟ Untimely Bill of Costs and Opp‟n to Pls.‟ Mot. to Enlarge the Time for Filing Their B ill of Costs at 3 (“Def.‟s Reply”) (citing Neal , 121 F.3d at 687).- 4

- This Court is generally inclined to award costs in recognition of the hortatory language of RCFC 54(d)(1) (“Costs . . . should be allowed to the prevailing party . . .”)

and finds no compelling reason not to do so here.

Nevertheless, th e overriding question is whether Plaintiffs should be allowed,

nunc pro tunc , an enlargement of time for filing their BOC. Their filing on February 6, 2013, was clearly out of time . RCFC 54 provides that a BOC “must” “be filed within 30 days after the date of final judgment, as defined in 28 U.S.C. § 2412(d)(2)(G).” RCFC 54(d)(1)(B)(i). Section 2412(d)(2)(G) in turn provides that “final judgment” means “a judgment that is final and not appealable. ”

Judge Miller‟s revised judgment was entered by the Clerk of Court on the docket on November 1, 2012. It became final and not appealable 60 days after it was entered.

See Fed. R. App. P. 4(a)(1)(B); see also Hernandez

- Garcia v. Nicholson , 485 F.3d 651

, 652 (Fed. Cir. 2007). As Defendant notes, 60 days after November 1, 2012, was December 31, 2012, but December 31, 2012, and January 1, 2013, were Court holidays; the final day therefore to file a notice of appeal would have been January 2, 2013. With

t he 30 days allowed thereafter pursuant to RCFC 54 to file the BOC, Plaintiffs‟ deadline was February 1, 2013. Plaintiffs‟ BOC was five days (three business days) late.

Plaintiffs argue, however, that “[t]he late filing of plaintiffs‟ bill of costs was t he result of excusable neglect on the part of Wolf Creek‟s owners‟ counsel, and [enlargement] will not result in any prejudice to the government.” Pls.‟ Resp. at 5. In support of the court‟s authority to grant its motion for an enlargement of time after the fact, Plaintiffs cite to RCFC 6 , “Computing and Extending Time; Time for Motion Papers,” which provides, “When an act may or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has ex pired if the party failed to act because of excusable neglect.” RCFC 6(b)(1). Circumscribing the court‟s latitude with respect to certain deadlines, RCFC 6 further provides that the court “must not extend the time to act under RCFC 52(b), 59(b), (d), and 60(b).” RCFC 6(b)(2). It bears noting that EAJA itself does not provide any deadline for filing a BOC

.

Plaintiffs, therefore, focus on whether their motion for enlargement meet s the conditions of “excusable neglect.”

Defendant , on the other hand

, pr ior to weighing Plaintiffs‟ case for excusable neglect

, would have the court in the first instance enforce RCFC 54(d)(1)(B)(i) strictly, parallel to the strict deadlines prescribed under EAJA:

While the 30

- day limit for filing a bill of costs in this Cou rt is found in the Court‟s rules, and not in the EAJA statute, this Court has recognized that “one of the motivations behind RCFC 54(d)(1) was to synchronize the timing rules of the Court of Federal Claims with respect to recovery of

fees and costs with th e timing rules of EAJA.”- 5

-

Def.‟s Reply at 5 (quoting First Federal Sav. & Loan Assoc. v. United States , 88 Fed. Cl. 572, 593 (2009). “[T]he former,” it urges, “should be enforced as strictly as the latter.”

Id . at 6.

As the Government acknowledges, however, in 2010

, in amendments to Rules 6 and 54 of the RCFC, the Court eliminated what had been explicit prohibitions against enlarging the time for f

iling a BOC. It argues, nevertheless , that if the intent of the RCFC amendments were to permit a party to request an enlargement, after the fact

, for filing a

BOC , “[s]uch an exception would swallow the firm 30

- day rule.” Id . at 6.

The court agrees with Plaintiffs in its reading of the two rules as amended in 2010. “Nothing in either RCFC 6 or RCFC 54 presents any ambiguity regarding this Court‟s authority to enlarge the time for filing a bill of costs. RCFC 54 sets out the 30

- day time frame. And RCFC 6(b)(1) permits that time frame to be enlarged.” Pls.‟ Reply

at 2.

The issue , thus, is whether Pla intiffs‟ failure to meet the requisite BOC filing

deadline is a matter of excusable neglect. In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership , the Unit ed States Supreme Court held that the

determination of what constitutes excus able neglect, for purposes of a party‟s neglect of a deadline, “is at bottom an equitable one.” 507 U.S. 380, 395 (1993). The factors for consideration, “taking account of all relevant circumstances surrounding the party‟s omission,” include “the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good

faith.” Id

.

The C ourt in Pioneer was specifically considering the “excusable neglect” standard under Bankruptcy Rule 9006(b)(1), but it construed the phrase under that rule as analogous to its meaning under Rule 6(b) of the Federal Rules of Civil Procedure (“FRCP”). Id . a t 391

- 92. The Court referred to “excusable neglect” under FRCP 6(b) as “an elastic concept.” Id . at 392. It specifically determined that the reach of the concept “is not limited strictly to omissions caused by circumstances beyond the control of the

mov ant,” id ., although it noted that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute „excusable‟ neglect.” Id . (emphasis added).

In Cygnus Corp., Inc. v. United States , 65 Fed. Cl 646 (2005), the Court of

F ederal Claims found that, post

- Pioneer , “excusable neglect” did not require a

“draconian” showing of unique and extr aordinary circumstances, but rather set a relatively flexible equitable standard for extensions of time. Id . at 649. Nonetheless, the

cour t in Cygnus observed that, “[a]lthough the post

- Pioneer standard is not so strict as the government would have it, „there still must be a satisfactory explanation for the late filing.‟” Id . (quoting Gibbons v. United States , 317 F.3d 852, 855 (8th Cir. 2003)). In Cygnus , the court was construing whether the plaintiff had appropriately been granted an extension of time for the filing of a notice of appeal pursuant to Fed. R. App. P. 4(a)(5)(A). It found the extension justif ied, in part, because “there had been an element- 6

-

of confusion in the computation of time for taking an appeal” due initially to a delay in docketing by the Clerk‟s office. Moreover, there was no indication of prejudice to the Government, no threat to judi cial administration, nor any suggestion of bad faith.

This court adheres to the view of the court in Cygnus that the “unique or extraordinary circumstances” criteria for finding excusable neglect has been leavened by the balancing approach prescribed in Pioneer

.

Among the factors prescribed in Pioneer , Plaintiffs‟ motion for enlargement founders on just one: the reason for the delay. There is no demonstrated prejudice to the Government if the court were to consider the Plaintiffs BOC, there is little or no threat to judicial administration and efficiency (other than the delay in addressing this issue; Plaintiffs‟ BOC was only late by three business days), and there is no indication, much less suggestion

, of bad faith. Rather, Plaintiffs simply acknowl edge that an associate attorney initially misconstrued the due date and counsel of record failed to double

- check

the associate‟s calculation.

Plaintiffs explain that the miscalculation stemmed from “both carelessness and the

fact that the time for the un derlying judgment to become final and not appealable could have run from two possible dates

– the October 1, 2012 date of the Federal Circuit‟s denial of the government‟s petition for rehearing or this Court‟s November 1, 2012 judgment following the Federa l C ircuit‟s decision.” Pls.‟ Resp. at 6. Counsel‟s associate conflated the calculations and due dates, incorrectly counting 90 days for the filing of a petition for certiorari (as if that were the time period for determining “final and not appealable,” g iven that the Federal Circuit had not technically remanded the case to the trial court), but mistakenly counted that 90 days not from the October 1, 2012, denial of rehearing, but from the November 1, 2012, docketing of the trial court‟s revised judgment. “As a result, counsel mistakenly believed the bill of costs was due March 1, 2013. Counsel acted in good faith, as he intended to file the bill of costs 25 days early, not 5 days late.” Id

.

In any event, counsel‟s mistake seems nothing more than garde n

- variety

inadvertence or miscalculation.

The court t here fore must grapple with the question whether the considerable

weakne ss of Plaintiffs‟ explanation for its mistake is dispositive among the Pioneer

factors or may be offset by t he strength of its pos ition vis

- a

- vis the other factors . For example, in Silivanch v. Celebrity Cruises, Inc ., 333 F.3d 355, 366 (2nd Circ. 2003), the

court focused its consideration on the third factor: “the reason for the delay, including

whether it was within the reasonable control of the movant.” The Second Circuit there held that the “equities will rarely if ever favor a party” who fails to follow a rule or deadline that is “entirely clear.” Id . In Graphic Comm c’ns , Local 12

- N v. Quebecor Printing Providence, Inc ., 270 F.3d 1, 5 (1st Cir. 2001), the First Circuit observed that “„[t]he four Pioneer factors do not carry equal weight; the excuse given for the late filing must have the greatest import.‟” Id . (quoting Hosp. del Maestro v. Nat’l Labor Relations

Bd ., 263 F.3d 173, 175 (1st Cir. 2001) (quoting Lowry v. McDonnell Douglas Corp ., 211- 7

-

F.3d 457, 463 (8th Cir. 2000))). The decisions in these circuits seem to suggest that,

while Pioneer relaxed the standards for finding excusable neglect , there must ordinarily

be some thing more to the reason for the delay than simple mistake. In this court, the trial judge in Cygnus described that threshold as requiring “a satisfactory explanation.” Cygnus , 65 Fed. Cl. at 649. In San Juan City College, Inc. v. United States , 75 Fed. Cl. 540, 542 (2007), the trial court contrasted insufficient explanations such as office upheaval, the illness of an attorney‟s staff member, and an unusually heavy case load with situations in which counsel had become preoccupied with the serious illness of an infant child or spouse.

Yet, the Supreme Court in Pioneer explicitly noted that “„excusable neglect‟ may extend to inadvertent delays.” 507 U.S. at 391

- 92. “[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute „excusable neglect.‟” Id

. (emphasis added). That statement clearly suggests that, in unusual circumstances, mere inadvertence might be excused.

In United States v. Brown

, the Seventh Circuit affirmed a district court‟s

extension of time for filing a late notice of appeal where a cri minal defendant‟s counsel had missed the deadline by one day. United States v. Brown , 133 F.3d 993 (7th Cir. 1998). The court observed that, “[i]f the reason for the delay were the only factor to
consider, or ev en the most important one, we might agree that the neglect in this case could not be excused.” Id . at 997. The court noted that there was no prejudice to the

Government due to the one

- day delay and no indication of a lack of good faith. “ Pioneer makes clear that the standard is a balancing test, meaning that a delay might be excused even where the reasons for the delay are not particularly compelling.” Id

.

In Brown , the court noted in particular the “relative inexperience of Brown‟s attorney,” whose legal practice was generally within the Wisconsin state court system. Mr. Brown was, in fact, his only client in federal court. Mr. Brown‟s counsel had mistakenly believe d that weekends and holidays did not count towards the 10

- day period

for fili ng his criminal appeal, as under Wisconsin law. Under the Federal Rules of Appellate Procedure that governed the appeal , however, weekend days would be excluded only if the prescribed period were less than seven days. Furthermore, the district court judg ment that had triggered the timetable for appeal had become final over the Thanksgiving holiday period.

The appellate court also observed that the Supreme Court in Pioneer had given “special consideration” to the factors of prejudice, efficient judicial administration, and good faith

. Id . at 996. In addition, it noted that “dismissal of Brown‟s appeal would be a harsh sanction for a relatively minor legal mistake.” Id . at 997.

Here, Plaintiffs filed their BOC late by three business days, but there is no unusual gloss, as in Brown , to their mere inadvertence, such as counsel‟s inexperience in federal court or a holiday that confused the start of the 30

- day countdown under RCFC 54. Nor is the sanction here, inability to pursue their approximately $40,0 00 BOC claim- 8

-

in a spent nuclear fuel case, comparable to a dismissal with prejudice of a late

- filed criminal appeal.

The only confusion that Plaintiffs cite was the question on what date judgment in the case became final and not appealable , thus triggeri ng the 30

- day time for filing a

BOC under RCFC 54 : whether , because there was no actual remand, they should have counted 90 days from the Federal Circuit‟s October 1, 2012, denial of the Government‟s motion for panel rehearing on the overhead issue , when t he Government‟s opportunity
for certiorari would be over; or whether the RCFC 30

- day period was to start running once 60 days

– the time for appealing again to the Federal Circuit

– had passed from the

entry of the revised judgment in the trial court, that is, from November 1, 2012. Either way, however, Plaintiffs‟ deadline for filing their BOC had passed prior to their having

filed it on February 6, 2013. Thus, it was not the start date of the RCFC 30

- day period that was unusually confusing. It was Plai ntiffs‟ mistaken application of the 90

- day “cert” period for calculating the date judgment became final to the date of the trial court‟s entry of final judgment: in other words, garden

- variety miscalculation.

III. Conclusion

This court is sympathetic to Plai ntiffs‟ plight, given RCFC‟s general direction that

costs “ should be ” awarded to the prevailing party. The court, however, cannot find in this instance any compelling indication of the “something more” than simple mistake to warrant a finding of excusable neglect.

Accordingly, Plaintiffs‟ motion for an enlargement of time, nunc pro tunc , is

denied. Defendant ‟s motion to dismiss Plaintiffs‟ bill of costs is granted.

s/ Edward J. Damich

EDWARD J. DAMICH Judge