Wood-Ivey Systems Corporation v. United States

4 F.3d 961, 39 Cont. Cas. Fed. 76,574, 93 Daily Journal DAR 11885, 26 Fed. R. Serv. 3d 1280, 1993 U.S. App. LEXIS 23178, 1993 WL 341172

• Court: Court of Appeals for the Federal Circuit
• Decided: September 9, 1993
• Docket: 92-5019
• Status: Published

Opinions

PAULINE NEWMAN, Circuit Judge.

Wood-Ivey Systems Corporation appeals the decision of the United States Claims Court¹ dismissing its claim for failure to file a timely appeal. We vacate the dismissal, and remand for determination of the merits of the claim.

Background

Wood-Ivey and the Department of the Navy entered into a contract for a shipboard aircraft altitude positioning system. Upon completion of the contract, Wood-Ivey claimed an equitable adjustment. The claim was denied by the contracting officer, by decision dated November 30, 1989. The decision was received by Wood-Ivey on December 8, 1989. Pursuant to the Contract Disputes Act of 1978, a contractor may bring an action in the Claims Court within twelve months after the date of receipt of the contracting officer’s decision.² The twelvemonth period ended on Saturday, December 8, 1990. Wood-Ivey filed its action in the Claims Court on Monday, December 10, 1990.

Claims Court Rule 6(a) provides that a filing set by rule, order, or statute is timely when made on the first business day after a Saturday, Sunday, or legal holiday:

6(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of 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. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which the weather or other conditions have made the clerk’s office inaccessible, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

The Claims Court, declining to apply its Rule 6(a), granted the government’s motion to dismiss Wood-Ivey’s action as untimely filed. The court held that Claims Court Rule 6(a) can not apply to the statutory period for filing a claim. The court stated that since such a period is “jurisdictional” it is not subject to Claims Court rulemaking. The court dismissed the action for failure to plead a claim upon which relief may be granted.

Discussion

Claims Court Rule 6(a) is the same as Federal Rule of Civil Procedure 6(a). The application of Federal Rule 6(a) to the statutory period for filing a claim against the government has been considered by several courts, as well as the Court of Claims.³ In Schultz v. United States, 132 F.Supp. 953, 132 Ct.Cl. 618 (1955) the Court of Claims overruled its prior holding in Harmon v. United States, 124 Ct.Cl. 751, 1953 WL 6109 (1953) that a Monday filing was not timely when the six year period for filing under the Back Pay Act ended on a Sunday. In overruling Harmon the Court of Claims referred to Union National Bank v. Lamb, 337 U.S. 38, 69 S.Ct. 911, 93 L.Ed. 1190 (1949), wherein the Supreme Court discussed the application of Federal Rule 6(a) to statutory time periods, as follows:

Rule 6(a) of the Rules of Civil Procedure provides that where the last day for performance of an act falls on a Sunday or a legal holiday, performance on the next day which is not a Sunday or legal holiday is timely. That rule provides the method for computation of time prescribed or allowed not only by the rules or by order of court but by “any applicable statute.” Since the rule had the concurrence of Congress, and since no contrary policy is expressed in the statute governing this review, we think that the considerations of liberality and leniency which find expression in Rule 6(a) are equally applicable to 28 U.S.C. § 2101(e).

337 U.S. at 40-41, 69 S.Ct. at 912-13 (footnotes omitted).

The Claims Court has heretofore applied its Rule 6(a) without incident. In Structural Finishing, Inc. v. United States, 14 Cl.Ct. 447 (1988) the Claims Court stated, with respect to the filing of a complaint under 41 (a), that “since June 6, 1987 fell on a Saturday, the filing date in this Court was extended to Monday, June 8, 1987”, id. at 450; the complaint was not filed on Monday, however, and therefore was untimely.

Although the government dismisses these Court of Claims and Claims Court decisions as dicta, the rule permitting filing on the next business day after a weekend or holiday has regularly been applied in suits against the government. In Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.1984) the court held that Rule 6(a) is appropriate for computing the time in which to file a claim against the United States, as it promotes uniformity in statutory construction. The government had argued that applying Rule 6(a) to the computation of time under the Federal Tort Claims Act expanded the jurisdiction of the district court and was contrary to Fed.R.Civ.P. 82. The Third Circuit responded that “[t]his contention, while it is in this instance clothed by the government in the mystical garments of sovereign immunity, is also frivolous.” Frey, 748 F.2d at 175.

In Milam v. United States Postal Service, 674 F.2d 860 (11th Cir.1982) the district court had held that Section 2000e-16(c) of Title 42 was a “jurisdictional” statute requiring a plaintiff to file suit within thirty days of receipt of an EEOC notification letter, and that the court had no power to extend the time limit when the limitations period ended on a Sunday. The Eleventh Circuit applied Rule 6(a), stating that “[tjimely filing is not a prerequisite to federal jurisdiction. Permitting suit after the period has ended would not, therefore, work an extension of our jurisdiction.” Milam, 674 F.2d at 862. See also, e.g., Kollios v. United States, 512 F.2d 1316, 1317 (1st Cir.1975) (liberal interpretation of Rule 6(a) avoids technicalities that prevent individuals from presenting their claims against the government); Hart v. United States, 817 F.2d 78, 80 (9th Cir.1987) (Rule 6(a) applies to time for filing tort claim against the United States and the district court properly had jurisdiction); Jackson v. United States Postal Service, 666 F.2d 258, 259-60 (5th Cir.1982) (applying Rule 6(a) to appeal from the Merit Systems Protection Board); Johnson v. Flemming, 264 F.2d 322, 323 (10th Cir.1959) (“the considerations of liberality and leniency which find expression in Rule 6(a) ... are applicable to statutory interpretation”); United Mine Workers of America, International Union v. Dole, 870 F.2d 662 (D.C.Cir.1989) (construing statutory time period for appeal under Fed.R.App.P. 26(a) (similar to Rule 6(a)) to exclude final weekend days and holidays unless a specific statutory provision requires otherwise).

In United Mine Workers the court explicitly rejected the government’s argument that application of the Federal Rules to statutory time periods unjustifiably enlarges the jurisdiction of the federal courts. Id. at 665. Professor Wright has commented that “[i]t is difficult to perceive how a legitimate governmental interest would be prejudiced by application of the Rule 6 exclusion of final Saturdays, Sundays, and legal holidays to federal statutes of limitations”. 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1163 at 469 (1987 & Supp. 1992). Only one or two circuits have held that Federal Rule 6(a) does not apply to statutes of limitations. Id. at 462-64.

The eases relied on by the government as illustrating special rigor because the government is a party turned on issues unrelated to the expiration of a filing period on Saturday, Sunday, or a holiday. In Borough of Alpine v. U.S., 923 F.2d 170, 172 (Fed.Cir.1991), the question was whether receipt by an employee of the contractor, in the circumstances of that case, constituted receipt by the contractor to start the twelve-month limitations period. Placeway Construction Corp. v. United States, 713 F.2d 726, 727 (Fed.Cir.1983) involved a 120-day deadline that ended on a Friday, not a weekend or holiday. In Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed.Cir.1982) the complaint was filed more than three months after the deadline to file an appeal with the board of contract appeals. None of these cases involved the applicability of Rule 6(a).

The government also argues that the Claims Court must apply its Rule 6(a) differently from Court of Claims and Federal Circuit precedent and the great weight of regional circuit practice. The government states that although Congress authorized the Claims Court to prescribe its rules of procedure, 28 U.S.C. § 2503(b), these rules were not required to be transmitted to Congress, as are the Federal Rules of Civil Procedure, 28 U.S.C. § 2074(a). Thus the government concludes that the Claims Court rules of procedure are inapplicable.

Claims Court Rule 6(a) was enacted in accordance "with the authorization of Congress to promulgate rules of procedure. It is an official rule on which the court and the public must rely. Congress did not require return of the Claims Court Rules to Congress for review and ratification. For the government now to argue that absent such ratification this Rule can not apply as it is written is an unwarranted disruption, after ten years of Claims Court existence, and indeed an improper intrusion into the constitutional balance.

Conclusion

Claims Court Rule 6(a) applies to the computation of time for filing an action when the statutory filing period ends on Saturday, Sunday, or a holiday. Wood-Ivey’s claim was timely filed on Monday, December 10, 1990, when the period set in 41 U.S.C. § 609(a) ended on the previous Saturday.⁴

Attorney Fees and Costs

Wood-Ivey requests attorney fees in accordance with 28 U.S.C. § 2412. An appropriate petition may be filed, stating the support for the request.

Taxable costs in favor of Wood-Ivey.

VACATED AND REMANDED.

1 . Wood-Ivey Sys. Corp. v. United States, No. 90-3996C (Cl.Ct. Aug. 27, 1991), reconsid. denied, No. 90-3996C (Sept. 11, 1991). The Claims Court has been redesignated the Court of Federal Claims. Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 902, 106 Stat. 4506, 4516 (1992). For clarity, we shall use the name in place at the time of the Claims Court's decision.

2 . 41 U.S.C. § 609(a)

(1) [I]n lieu of appealing the decision of the contracting officer ... to the agency board, a contractor may bring an action directly on the claim in the United States Claims Court....

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(3) Any action under paragraph (1) ... shall be filed within twelve months from the date of receipt by the contractor of the decision of the contracting officer concerning the claim, and shall proceed de novo in accordance with the rules of the appropriate court.

3 . In South Corp. v. United States, 690 F.2d 1368 (1982) the Federal Circuit adopted the precedent of the Court of Claims. The Claims Court, as successor to the trial commissioners of the Court of Claims, also adopted that precedent. South Louisiana Grain Services, Inc. v. United States, 1 Cl.Ct. 281, -288 (1982); General Order No. 1, 1 Cl.Ct. XXI (1982).

4 . Although Wood-Ivey raises the additional argument that the time period is subject to equitable tolling, citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), we need not reach that issue. The concurring/dissenting opinion misperceives the court's holding, which is simply that in accordance with Rule 6(a) of the Court of Federal Claims, the case was timely filed on Monday when the statutory period ended on the previous Saturday. None of the concurrence/dissent's "unbroken line of decisions”, Op. at 964, apparently cited to show the error of the majority's reasoning, has any relation to filing on a weekend or holiday. None of these decisions makes mention of Rule 6(a). Indeed, none applies equitable tolling, the ground favored in the concurrence/dissent. We also observe that many of this "unbroken line of decisions” rely on Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957), the case that the Supreme Court now considers obsolete if not overturned. See Irwin, 498 U.S. at 94, 98, 111 S.Ct. at 456-57, 459.

Our decision herein does not turn on either jurisdiction or sovereign immunity, and does not reach equitable tolling. (A separate concurring opinion discusses these issues, in response to their presentation in the concurrence/dissent.) The concurrence/dissent speculates about what the other panel members believe about jurisdiction and sovereign immunity, and has selected from opinions authored by the other panel members in other cases. Op. at 966, n. 4. To reach out for what has not been said in this case, in order to criticize it, is not an efficient use of judicial resources, and we reply only briefly. One of the criticized opinions was a dissent, which concludes:

Indeed, whether a requirement is described as "jurisdictional” does not prohibit recourse to the interest of justice, and does not bar equitable tolling or waiver should the circumstances warrant.

Widdoss v. HHS, 989 F.2d 1170, 1179 (Fed.Cir.1993) (Newman, J., dissenting). Indeed, this is the position that now is taken by the concurrence/dissent as the basis for deciding this appeal! And in Spruill v. MSPB, 978 F.2d 679 (Fed.Cir.1992) (Plager, J., for a unanimous panel), the other criticized opinion, even the concurrence/dissent must acknowledge that the time limit was not statutory, and thus not "jurisdictional”.