Progressive Indus., Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
PROGRESSIVE INDUSTRIES, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
IRISH OXYGEN COMPANY,
Defendant
______________________
2017-1941
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-01225-PEC, Judge Patricia E.
Campbell-Smith.
______________________
Decided: April 30, 2018
______________________
MARY F. APRIL, McDonald Hopkins, LLC, West Palm
Beach, FL, argued for plaintiff-appellant. Also represent-
ed by TYLER LEE MATHEWS, Cleveland, OH.
ANTONIA RAMOS SOARES, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., DOUGLAS K. MICKLE.
2 PROGRESSIVE INDUSTRIES v. UNITED STATES
______________________
Before PROST, Chief Judge, MAYER and REYNA,
Circuit Judges.
PROST, Chief Judge.
Appellant Progressive Industries, Inc. (“Progressive”)
appeals the decision of the Court of Federal Claims
(“Claims Court”), denying Progressive’s Motion for Recon-
sideration of Amended Judgment Pursuant to Rule 59(e)
or, in the Alternative, for Relief from Final Judgment
Pursuant to Rule 60(b). We affirm.
I
This bid protest pertains to the Department of Veter-
ans Affairs’s (“VA”) procurement of medical gases for
certain medical facilities maintained by the VA. In re-
sponse to the VA’s initial solicitation, six offerors submit-
ted proposals. Three companies were eventually
determined to be in the competitive range: RAS Enter-
prises LLC (“RAS”), Irish Oxygen Co. (“Irish”), and Pro-
gressive. J.A. 2798.
On the merits, Progressive won its protest in part.
J.A. 2796–832; Progressive Indus., Inc. v. United States,
129 Fed. Cl. 457 (2016). In its October 31 Opinion and
Order (“October 31 Order”), 1 the Claims Court found the
VA had, among other things, treated the offerors incon-
sistently when it established the competitive range and
that this unequal treatment prejudiced Progressive.
Despite its initial victory, however, Progressive did
not obtain the full result it desired. On November 1, the
1 The original, sealed version of the October 31 Or-
der is not included in the record on appeal. Only the
public redacted version is included in the record. See
J.A. 2796 n.1.
PROGRESSIVE INDUSTRIES v. UNITED STATES 3
day after issuing its decision, the Claims Court issued
another order (“November 1 Order”). J.A. 2768–69. This
order enjoined the VA from awarding the contracts to
RAS and Irish, vacated the existing awards to those
companies, and directed the Clerk of the Court to enter
judgment remanding the case to the VA for appropriate
action consistent with the October 31 Order. J.A. 2769.
The November 1 Order also stated that “[n]o costs are
awarded to plaintiff,” referencing Progressive’s prior
request for costs and attorney fees. Id. The order further
stated that Progressive could file a motion for the court to
reconsider its decision regarding attorney fees by Decem-
ber 1, 2016. Id.Based on the October 31 and November 1 Orders,
judgment was entered in Progressive’s favor on November
2, 2016. J.A. 2770. The one-page judgment stated, in
relevant part:
IT IS ORDERED AND ADJUDGED this date,
pursuant to Rule 58, that the VA is enjoined from
awarding the contract to RAS Enterprises, LLC
and Irish Oxygen Company, and the VA’s decision
to award the contract to RAS Enterprises, LLC
and Irish Oxygen Company is vacated. This case
is remanded to the contracting officer for appro-
priate action consistent with the court’s Opinion
and Order of October 31, 2016. No costs.
Id. The judgment also stated: “As to appeal, 60 days
from this date, . . . .” Id.On November 3, the day after judgment was entered,
the VA filed a Motion for Leave to Submit Status Report
Regarding Compliance with the Court’s Injunction, and,
in the Alternative, Emergency Motion to Modify Court’s
Injunction. J.A. 2771–76. The VA’s motion explained the
VA’s need to continuously supply medical gases and
informed the court of its plan to award emergency bridge
contracts to RAS and Irish while it resolicited the contract
4 PROGRESSIVE INDUSTRIES v. UNITED STATES
consistent with the Claims Court’s opinion. The motion
requested that, if the court did not consider the VA’s
proposed course of action to be consistent with the No-
vember 1 Order, the court modify its injunction to permit
the VA to continue performance of the current contracts
for seven days until the VA could put bridge contracts in
place. J.A. 2772.
The next day, without receiving a response from Pro-
gressive, the Claims Court in a November 4 Order grant-
ed the VA’s motion for leave to file the status report and
stated that it “[did] not deem the proposed course of
action to be non-compliant.” J.A. 2777.
Later that day, Progressive filed a motion for recon-
sideration of the November 4 Order, explaining that
Progressive could just as easily supply the necessary
medical gases if awarded the emergency bridge contracts.
J.A. 2778–80. In the same motion, Progressive asked for
an opportunity to explain its “entitlement to compensa-
tion for the severe economic harm it has suffered as a
result of the loss of the opportunity to supply facilities . . .
covered by the contracts at issue.” J.A. 2780.
On November 15, the Claims Court denied most of
Progressive’s motion, but granted the motion to a limited
extent. J.A. 2781–83. With regard to Progressive’s claim
of entitlement to compensation for economic harm, the
court explained that the Tucker Act permits the court to
“award any relief that the court considers proper, includ-
ing declaratory and injunctive relief except that any
monetary relief shall be limited to bid preparation and
proposal costs.” J.A. 2783 (quoting 28 U.S.C.
§ 1491(b)(2)). Based on the statute, the court emphasized
that it did not have authority to compensate Progressive
for lost profits. The court then stated: “To the extent that
Progressive wishes to recover costs incurred in connection
with its bid protest, plaintiff may file a motion for relief
from the court’s November 1, 2016 Order by no later than
PROGRESSIVE INDUSTRIES v. UNITED STATES 5
Friday, January 13, 2017, and include the relevant legal
analysis supporting its request for costs.” J.A. 2783
(emphasis omitted).
Later that day, Progressive filed an Emergency Mo-
tion for Clarification and Extension of Time. J.A. 2784–
88. The Emergency Motion explained that Progressive
had intended to file its motion for attorney fees and its
bill of costs within 30 days of the final judgment, pursu-
ant to Rule 54(d) of the Rules of the Court of Federal
Claims (“RCFC”), with final judgment being defined
according to the Equal Access to Justice Act (“EAJA”)
provisions. See 28 U.S.C. § 2412(d)(2)(G). The motion
therefore asked the court to vacate the portion of its
November 1 Order that stated Progressive was not enti-
tled to attorney fees and costs and that set a deadline (not
based on the EAJA provisions) for Progressive to file a
motion for reconsideration of that decision. Separately,
but in the same motion, Progressive also noted its intent
to file a motion for relief from the November 1 Order
regarding Progressive’s entitlement to bid preparation
and proposal costs, as the court had permitted in its
November 15 Order. J.A. 2787 n.2. Progressive did not
seek to alter the deadline for that motion.
Three days later, on November 18, the Claims Court
issued a “Scheduling Order,” granting Progressive’s
request to extend the time to file a motion for attorney
fees and costs and setting the deadline consistent with the
EAJA deadline. J.A. 2789–90. The Claims Court con-
strued the request to vacate part of the November 1 Order
as a Rule 60 motion and set a briefing schedule for that
motion. J.A. 2790.
On November 23, five days after the court’s Schedul-
ing Order, the court sua sponte issued another order
(“November 23 Order”). J.A. 2791–94. This order:
(a) withdrew the November 18 Scheduling Order alto-
gether; (b) stated that because the November 1 Order had
6 PROGRESSIVE INDUSTRIES v. UNITED STATES
“created confusion” regarding Progressive’s ability to file a
motion for attorney fees and costs, the court was correct-
ing the November 1 Order via Rule 60(a); (c) stated that
the November 23 Order would “supersede[]” the Novem-
ber 1 Order; (d) stated that the court was “withdraw[ing]”
from the November 1 Order the paragraphs that denied
attorney fees and costs and “reissu[ing]” the November 1
Order on that date (November 23); (e) directed the Clerk
to “amend” the November 2 judgment to remove the “[n]o
costs” language, but otherwise leave the judgment “undis-
turbed”; and (f) vacated the January 13 deadline for
Progressive to file a motion for relief and instead indicat-
ed that Progressive could make a motion for attorney fees
and costs according to the deadlines in RCFC 54(d).
J.A. 2791–92. Nothing in the November 23 Order per-
tained to the merits of Progressive’s protest.
The same day, the Claims Court entered an Amended
Judgment. J.A. 2795. The only difference between the
original judgment and the Amended Judgment was the
removal of the sentence that read: “No costs.” Like the
original judgment, the Amended Judgment included the
language: “As to appeal, 60 days from this date, . . . .”
On December 20, Progressive filed a Motion for Re-
consideration of Amended Judgment Pursuant to Rule
59(e) or, in the Alternative, for Relief from Final Judg-
ment Pursuant to Rule 60(b) (“Motion for Reconsidera-
tion”). J.A. 2833–49. The Motion for Reconsideration
asked the Claims Court to modify the Amended Judgment
to direct the VA to reevaluate the bid proposals within the
competitive range, rather than resolicit the contracts
altogether. Progressive had not previously requested this
type of tailored relief. Progressive argued that manifest
injustice would result if the VA was permitted to resolicit
the contract because Progressive would be unable to
PROGRESSIVE INDUSTRIES v. UNITED STATES 7
compete for the new award. 2 In Progressive’s view, this
would effectively allow the VA to award contracts to RAS
and Irish as it originally had done, despite the Claims
Court’s holding that the VA unreasonably conducted the
procurement in a manner that prejudiced Progressive.
The Claims Court denied Progressive’s Motion for Re-
consideration on February 21, 2017. J.A. 18–27; Progres-
sive Indus., Inc. v. United States, 131 Fed. Cl. 66 (2017). 3
The Claims Court first held that the motion could not be
considered under Rule 59(e) because it was not filed
within the Rule 59(e) deadline. Second, the Claims Court
held that Progressive had not demonstrated the “extraor-
dinary circumstances” necessary to grant relief under
Rule 60(b)(6).
Meanwhile, the VA resolicited the contracts, applied
the Rule of Two, and awarded contracts to RAS and Irish
on May 1, 2017.
Progressive timely appealed the denial of its Motion
for Reconsideration, and we have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
2 As explained further below, this is because under
a renewed application of the VA’s Rule of Two, the con-
tract would need to be set aside for service-disabled or
other veteran-owned small businesses if the contracting
officer reasonably expects that at least two veteran-owned
small businesses will submit offers and that the award
could be made “at a fair and reasonable price that offers
best value to the United States.” 38 U.S.C. § 8127(d).
Because Progressive was not a veteran-owned business,
and RAS and Irish satisfied the Rule of Two, Progressive
was ineligible for the award under the resolicitation.
3 Although the original order was issued under seal,
the public version of the order, filed on March 21, 2017,
contains no redactions. J.A. 18 n.1.
8 PROGRESSIVE INDUSTRIES v. UNITED STATES
II
Progressive’s Motion for Reconsideration sought relief
under both Rule 59(e) and Rule 60(b). We will consider
each basis for relief in turn.
A
The first issue before us is whether the Claims Court
erred by denying Progressive’s Rule 59(e) motion as
untimely. Rule 59(e) requires a motion to alter or amend
a judgment to be filed no later than 28 days after entry of
judgment. 4 The Claims Court held that the time for filing
a Rule 59(e) motion began at the time of the original
judgment, which was entered on November 2, 2016.
Thus, because Progressive waited until December 20 to
file its Rule 59(e) motion, the Claims Court found the
motion untimely. On appeal, Progressive argues that the
Rule 59(e) deadline should have been calculated from the
date of the Amended Judgment, which was entered on
November 23. We agree with the Claims Court.
The only difference between the original judgment
and the Amended Judgment was that the Amended
Judgment removed the sentence that read: “No costs.”
Compare J.A. 2770, with J.A. 2795. In the November 23
Order accompanying the Amended Judgment, the Claims
Court expressly stated that “[t]he rest of the judgment
remains UNDISTURBED.” J.A. 2792. Likewise, the only
difference between the November 1 Order and the version
4 RCFC 59(e) is identical to Rule 59(e) of the Feder-
al Rules of Civil Procedure (“FRCP”). As we have stated
before, “[t]he precedent interpreting the Federal Rules of
Civil Procedure applies with equal force to the comparable
Rules of the Court of Federal Claims.” Kraft, Inc. v.
United States, 85 F.3d 602, 605 n.6 (Fed. Cir.
1996), opinion modified on other grounds on denial of
reh’g, 96 F.3d 1428 (Fed. Cir. 1996).
PROGRESSIVE INDUSTRIES v. UNITED STATES 9
of that order that was reissued on November 23 was the
removal of the language denying attorney fees and costs.
The Amended Judgment altered only the collateral
issue of costs and therefore did not restart the time period
for filing a Rule 59(e) motion in this case. See Buchanan
v. Stanships, Inc., 485 U.S. 265 (1988) (per curiam) (hold-
ing that a motion for costs raises issues “wholly collateral”
to the merits); cf. Ray Haluch Gravel Co. v. Cent. Pension
Fund of Int’l Union of Operating Eng’rs & Participating
Emp’rs, 134 S. Ct. 773, 777 (2014) (holding that “the
pendency of a ruling on an award for [attorney] fees and
costs does not prevent, as a general rule, the merits
judgment from becoming final for purposes of appeal”);
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202
(1988) (holding that “an unresolved issue of attorney’s
fees for the litigation in question does not prevent judg-
ment on the merits from being final”).
In Buchanan, the Supreme Court held that a motion
for costs under Rule 54(d) was not a Rule 59(e) motion
because a motion for costs “does not involve reconsidera-
tion of any aspect of the decision on the merits” and
instead seeks “only what was due because of the judg-
ment.” Buchanan, 485 U.S. at 268. 5 The Court explained
that “a request for costs raises issues wholly collateral to
the judgment in the main cause of action, issues to which
Rule 59(e) was not intended to apply.” Id. at 268–69.
Because the costs motion was not a Rule 59(e) motion, the
5 “Costs” as used in Rule 54(d) is defined in
28 U.S.C. § 1920. Costs include routine litigation expens-
es such as fees of the clerk and fees for printed or elec-
tronically recorded transcripts necessarily obtained for
use in the case. See 28 U.S.C. § 1920 (listing taxable
costs); § 2412(a)(1) (providing for the award of costs as
enumerated in § 1920 in cases where the United States is
a party).
10 PROGRESSIVE INDUSTRIES v. UNITED STATES
notice of appeal filed prior to the disposition of the costs
motion was timely under the Federal Rules of Appellate
Procedure in place at that time. 6 Id. at 269.
At least one circuit court has applied Buchanan to the
timeliness of a Rule 59(e) motion. Collard v. United
States, 10 F.3d 718, 719 (10th Cir. 1993). In Collard,
after entering an original judgment, the court sua sponte
entered an amended judgment solely to award costs. The
amended judgment went so far as to purportedly define
the Rule 59(e) filing period as beginning on the date of the
amended judgment. The plaintiff thus filed its Rule 59(e)
motion within the deadline based on the amended judg-
ment, but outside the deadline based on the original
judgment. In finding the Rule 59(e) motion untimely, the
Tenth Circuit explained that the original judgment “end-
ed the litigation on the merits” and that “a cost award
does not constitute litigation on the merits.” Id. And,
quoting Buchanan, the Tenth Circuit reasoned that a
request for costs is “wholly collateral to the judgment.”
Id. (quoting Buchanan, 485 U.S. at 268–69).
As in Collard, the original judgment in this case
ended the litigation on the merits, and any ongoing dis-
putes regarding costs or attorney fees were merely collat-
eral issues. See id.; U.S. for the Use & Benefit of Familian
Nw., Inc. v. RG & B Contractors, Inc., 21 F.3d 952, 954–55
(9th Cir. 1994) (applying Budinich to explain that attor-
ney fees are “always collateral” and finding a Rule 59(e)
motion untimely where the motion had been filed based
6 At the time of Buchanan, a notice of appeal filed
prior to the disposition of a Rule 59(e) motion was ineffec-
tive. Fed. R. App. P. 4(a)(4) (1986) (“A notice of appeal
filed before the disposition of any of the above motions
shall have no effect. A new notice of appeal must be filed
within the prescribed time measured from the entry of the
order disposing of the motion as provided above.”).
PROGRESSIVE INDUSTRIES v. UNITED STATES 11
on the date attorney fees were awarded, rather than the
date of judgment). Moreover, Progressive’s Rule 59(e)
motion addressed matters that had not been modified by
the Amended Judgment. As the Second Circuit recently
explained:
When both an initial judgment and an amended
judgment exist, the timeliness of a Rule 59(e) mo-
tion is determined from the date of the amended
judgment only if the motion bears some relation-
ship to the district court’s alteration of the first
judgment. Phrased differently, when a district
court alters its judgment, a party aggrieved by the
alteration must ask for correction of that altera-
tion to have the timeliness of their correction de-
termined from the date of the altered judgment.
If the Rule 59(e) motion bears no relationship to
the district court’s alteration of the initial judg-
ment, the motion’s timeliness is determined from
the date of the earlier judgment.
Tru-Art Sign Co. v. Local 137 Sheet Metal Workers Int’l
Ass’n, 852 F.3d 217, 221–22 (2d Cir. 2017) (citations
omitted); cf. Kraft, 85 F.3d at 604–09 (dismissing an
appeal as untimely after holding that a Rule 59(e) motion
based on a revised judgment would toll the time for
appeal “only in instances where the second judgment
presents a new significant adverse ruling against the
movant which the movant has had no previous opportuni-
ty to challenge”). The original judgment in this case
therefore marked the beginning of the time period during
which Progressive could file a Rule 59(e) motion related to
its requested equitable relief. Because Progressive’s
motion was not filed within 28 days of November 2, its
Rule 59(e) motion was untimely.
Progressive argues that the November 23 Order
should be construed as restarting all time periods, includ-
ing the time to file a Rule 59(e) motion. We disagree.
12 PROGRESSIVE INDUSTRIES v. UNITED STATES
Nothing in the November 23 Order indicated a change in
the Rule 59(e) deadline. That order addressed the dead-
lines to file motions for attorney fees and costs, but noth-
ing more. The only statement that could have caused
confusion was the statement in the Amended Judgment,
apparently copied from the original judgment, which
stated: “As to appeal, 60 days from this date . . . .”
J.A. 2795. But, even if the Claims Court intended to
change the Rule 59(e) deadline with that statement, it
would have lacked the authority to do so. According to
RCFC 6(b)(2), “[t]he court must not extend the time to act
under RCFC 52(b), 59(b), (d), and (e), and 60(b).” RCFC
6(b)(2) (emphasis added). 7 See Kraft, 85 F.3d at 604–05
(discussing an earlier version of Rule 6 of the RCFC and
FRCP with similar language and explaining that the time
to file “a motion to alter or amend the judgment under
[RCFC] 59(d), which is comparable to Fed. R. Civ. P. 59(e)
. . . may NOT be extended”). As apparent from Rule
6(b)(2), the Rule 59(e) deadline is a firm one, not to be
altered even by the court. See id.; Collard, 10 F.3d at 719(“A trial court may not extend, sua sponte or otherwise,
the time for a party to file a Rule 59(e) motion when it
enters an amended judgment solely to award costs. Rule
6(b) expressly prohibits a trial court from extending the
time to file such a motion.”). We therefore agree with the
Claims Court that Progressive’s Rule 59(e) motion was
untimely. 8
7 RCFC 6(b)(2) is almost identical to FRCP 6(b)(2),
and the differences are irrelevant to this case.
8 Progressive also contends that it was improper for
the court to rely on Rule 60(a) to make changes regarding
attorney fees and costs. We need not decide whether
reliance on Rule 60(a) was appropriate here because the
result is the same regardless.
PROGRESSIVE INDUSTRIES v. UNITED STATES 13
B
After finding the Rule 59(e) motion untimely, the
Claims Court addressed Progressive’s alternative request
for relief under Rule 60(b)(6). 9 This court reviews the
denial of a motion under RCFC 60(b) for an abuse of
discretion. Matos by Rivera v. Sec’y of Dep’t of Health &
Human Servs., 35 F.3d 1549, 1551–52 (Fed. Cir. 1994). 10
“An abuse of discretion exists when, inter alia, the lower
court’s decision was based on an erroneous conclusion of
law or on a clearly erroneous finding of fact.” Id. at 1552(quoting Broyhill Furniture Indus., Inc. v. Craftmaster
Furniture Corp., 12 F.3d 1080, 1083 (Fed. Cir. 1993)).
Rule 60(b)(6) states that “the court may relieve a par-
ty or its legal representative from a final judgment, order,
or proceeding” for “any other reason that justifies relief.”
RCFC 60(b)(6). 11 The Supreme Court has indicated that
Rule 60(b)(6) should be applied only in “extraordinary
circumstances.” Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 (1988) (quoting Ackermann v.
United States, 340 U.S. 193, 199 (1950)).
In denying Progressive’s Rule 60(b)(6) motion, the
Claims Court explained that Progressive’s dissatisfaction
9 Progressive’s motion mentioned subsections (1),
(5), and (6) of Rule 60(b). The Claims Court analyzed the
motion under Rule 60(b)(6), and Progressive has not
asked us to consider the other subsections on appeal. We
therefore limit our analysis to the standard set forth
under Rule 60(b)(6).
10 Although Progressive seeks de novo review by ar-
guing that the Claims Court misapplied its own rules
regarding timeliness of the Rule 59(e) motion, this argu-
ment is unpersuasive, given that we agree with the
Claims Court’s application of the Rule 59(e) deadline.
11 The language of this Rule matches FRCP 60(b)(6).
14 PROGRESSIVE INDUSTRIES v. UNITED STATES
with the ultimate result of its bid protest was based on
the VA’s application of the Supreme Court’s decision in
Kingdomware Technologies, Inc. v. United States, which
issued a few months prior to the Claims Court’s disposi-
tion of the case. J.A. 26; see 136 S. Ct. 1969, 1972 (2016).
In Kingdomware, the Court addressed the VA’s applica-
tion of the Rule of Two, which states that when awarding
contracts, the VA must restrict competition to service-
disabled or other veteran-owned small businesses if the
contracting officer reasonably expects that at least two
such businesses will submit offers and that the award can
be made at a fair and reasonable price that offers the best
value to the government. Kingdomware, 136 S. Ct. at
1972; see also 38 U.S.C. § 8127(d). Specifically, King-
domware addressed the question of whether the VA must
use the Rule of Two every time it awards contracts, or
whether the VA must use the Rule only to the extent
necessary to meet annual minimum goals for contracting
with veteran-owned small businesses. Id. The Court held
that “the Department must use the Rule of Two when
awarding contracts, even when the Department will
otherwise meet its annual minimum contracting goals.”
Id. at 1972.
In denying Progressive’s Rule 60(b)(6) motion, the
Claims Court noted that Progressive could have raised its
concerns regarding the potential impact of Kingdomware
before the original judgment was entered. Although
Progressive attempts to explain its rationale for not doing
so, there is no indication that Progressive was somehow
prevented from raising this issue earlier. And, regardless,
it is unclear whether Progressive would have been able to
avoid the application of Kingdomware even if Progressive
had raised the issue prior to judgment. Accordingly, the
Claims Court did not abuse its discretion in determining
that Progressive failed to present extraordinary circum-
stances warranting relief under Rule 60(b)(6).
PROGRESSIVE INDUSTRIES v. UNITED STATES 15
III
For the foregoing reasons, we agree with the Claims
Court that Progressive’s Rule 59(e) motion was untimely,
and we hold that the Claims Court did not abuse its
discretion in denying Progressive’s 60(b)(6) motion. We
therefore affirm.
AFFIRMED
COSTS
The parties shall bear their own costs.