        In the United States Court of Federal Claims
                                              No. 04-99 C
                                         (Filed: May 20, 2013)


************************************
                                    *
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.        *
                                    *
*************************************

                                                 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”), pursuant 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, hearing 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 Plaintiffs 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 rules, and thus its bill of costs should be dismissed as untimely.”1 Def.‟s Mot. to
Dismiss Pls.‟ Untimely Bill of Costs (“Def.‟s Mot.”). Specifically, Defendant asserted
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 court determined that Plaintiffs‟ BOC was filed properly and timely.
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
date 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. Miller. Judge Miller conducted the case through trial and, in
an opinion issued on November 30, 2010, awarded the three Plaintiffs a combined total of
$10,632,454.83, distributed proportionately according to their ownership interests in the
Wolf Creek Generating 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

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of $12,685,015.94,” allocated among the plaintiffs in specified amounts. On November
1, 2012, 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 Kansas 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 case
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 costs one way or the other, the Court here will not endeavor to
divine what, if anything, she may have intended, but rather will decide this matter anew.

         RCFC 54(d)(1) provides: “Costs – other than attorney‟s fees – should be allowed
to the prevailing party 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 awarded” 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] party
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 the 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 Bill of Costs at 3 (“Def.‟s Reply”) (citing Neal, 121 F.3d at 687).




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       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, the 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
the 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 the
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 expired
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 meets the
conditions of “excusable neglect.”

        Defendant, on the other hand, prior 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 Court
               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 the timing rules of EAJA.”



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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 filing 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 Plaintiffs‟ 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 United States Supreme Court held that the
determination of what constitutes excusable 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 Court 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. at 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
movant,” 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
Federal Claims found that, post-Pioneer, “excusable neglect” did not require a
“draconian” showing of unique and extraordinary circumstances, but rather set a
relatively flexible equitable standard for extensions of time. Id. at 649. Nonetheless, the
court 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 justified, in part, because “there had been an element

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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 judicial 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 acknowledge 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 underlying 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 Federal Circuit‟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,” given 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 garden-variety
inadvertence or miscalculation.

        The court therefore must grapple with the question whether the considerable
weakness of Plaintiffs‟ explanation for its mistake is dispositive among the Pioneer
factors or may be offset by the strength of its position 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 Commc’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

                                             -6-
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 something 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 criminal 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 even 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 believed that weekends and holidays did not count towards the 10-day period
for filing 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 judgment 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 $40,000 BOC claim



                                            -7-
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 triggering 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 the 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 Plaintiffs‟ 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 Plaintiffs‟ 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




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