Sai Industries Corp. v. United States

United States Court of Appeals for the Federal Circuit
05-5027
SAI INDUSTRIES CORP.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Laurence Schor, McManus, Schor, Asmar, and Darden, L.L.P., of Washington,
DC, argued for plaintiff-appellant. With him on the brief was Geoffrey T. Keating. Of
counsel on the brief was Stephen J. Johnson, of San Antonio, Texas. Of counsel was
Dennis C. Ehlers.
James D. Colt, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Todd M. Hughes, Assistant Director.
Appealed from: United States Court of Federal Claims
Senior Judge Reginald W. Gibson

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United States Court of Appeals for the Federal Circuit
05-5027
SAI INDUSTRIES CORP.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________________
DECIDED: August 26, 2005
______________________________
Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.
FRIEDMAN, Senior Circuit Judge.
The appellant SAI Industries Corp. (“SAI”) challenges the Court of Federal
Claims’ dismissal of its application for attorney fees under the Equal Access to Justice
Act (“Act”), 28 U.S.C. § 2412(d), as untimely filed. We affirm.
I
The facts are undisputed. In the underlying action, a pre-award bid protest, the
Court of Federal Claims held for the plaintiff. SAI Indus. Corp. v. United States, 60 Fed.
Cl. 731 (2004). The court’s final judgment was entered on May 26, 2004. (All
remaining months and dates to which this opinion refers are in 2004.) Pursuant to the
Federal Rules of Appellate Procedure, the government’s 60-day time for appeal expired

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on July 25. See Fed. R. App. P. 4(a)(1)(B) (2004). Because July 25 was a Sunday, the
deadline was the next day, Monday, July 26. See Fed. R. App. P. 26(a)(3). SAI filed its
application for attorney fees under the Act on August 26, thirty-one days after July 26.
On the government’s motion, the Court of Federal Claims dismissed SAI’s
application as untimely. SAI Indus. Corp. v. United States, 63 Fed. Cl. 1 (2004). The
court held that under the governing statutory provisions and the applicable rules of the
Court of Federal Claims, discussed in part II below, the first day of the 30-day period for
filing the application was July 27, the day following the government’s last day for
appealing (July 26). Id. at 5. The court further held that because SAI did not file its
application until thirty-one days after the government’s last day for appealing, the
application was untimely. Id.
II
The Act requires that applications thereunder be submitted to the court “within
thirty days of final judgment in the action[.]” 28 U.S.C. § 2412(d)(1)(B) (2004). The Act
defines “final judgment” as “a judgment that is final and not appealable[.]” Id.
§ 2412(d)(2). Under the normal and usual meaning and application of those provisions,
the first day of SAI’s 30-day period for filing its application was July 27, and its
application, filed thirty-one days after July 26, was untimely.
SAI contends, however, that these dates should be moved forward by one day,
which would make its application timely. It relies on Rule 6(a) of the Rules of the Court
of Federal Claims, which provides in relevant part: “In computing any period of time
prescribed or allowed by these rules, by order of court, or by any applicable statute, the
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day of the act, event, or default from which the designated period begins to run shall not
be included.” R.C.F.C. 6(a) (2004).
SAI argues that the government could have filed an appeal as late as midnight
on July 26, by depositing its notice of appeal in the night box that the Court of Federal
Claims maintains at the courthouse, which is available for filing on business days
between 5:15 p.m. when the Clerk’s Office closes, and midnight, in accordance with
Court of Federal Claims Rule 77.1(a). See R.C.F.C. 77(a), (c) & 77.1(a). SAI further
contends that the court’s judgment did not become final until the “first fraction of a
second into” July 27, after “the exact moment that the second hand on the clock swept
past 12:00 midnight on July 26”; that the “operative event” in this case, “the first day that
the Judgment was final and not appealable,” therefore occurred on July 27; and that
because the day of the “event” is excluded in calculating the 30-day period for filing
under Court of Federal Claims Rule 6(a), July 28 was the first day of the 30-day filing
period.
The Court of Federal Claims rejected this argument because, relying on a prior
decision of that court, it held that under its Rule 6(a), the “day of the act . . . from which
the designated period of time begins to run” is July 26, 2004, “the day on which the
period for appeals expired. . . and not the day on which the judgment was no longer
appealable (July 27, 2004).” 63 Fed. Cl. at 5 (emphasis omitted). We have no reason
to disagree with the Court of Federal Claims’ interpretation of its own rule, or with the
court’s conclusion that under that interpretation, “the first day of the thirty-day filing
period for [Equal Access to Justice Act (EAJA) fee] applications began the day after the
expiration of the appeals period[.]” Id. Nothing in § 2412(d), which specifies the time
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under the Act for filing applications, is inconsistent with that conclusion or calls for a
different result.
SAI cites the Supreme Court’s statement in Melkonyan v. Sullivan, 501 U.S. 89
(1991), that “[t]he 30-day EAJA clock begins to run after the time to appeal [a court’s]
‘final judgment’ has expired.” Id. at 96. That statement, however, does not address the
question in the present case, which is whether Court of Federal Claims Rule 6(a)
operates to exclude the day on which the period for appeal expired, or the day on which
the judgment was no longer appealable. For the reasons given above, Melkonyan does
not support SAI’s position.
CONCLUSION
The order of the Court of Federal Claims dismissing SAI’s application under the
Equal Access to Justice Act as untimely filed is
AFFIRMED.
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