Brizuela v. United States ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
FRANCISCO BRIZUELA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2012-5082
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 09-CV-797, Senior Judge Eric G.
Bruggink.
____________________________
Decided: August 8, 2012
____________________________
FRANCISCO BRIZUELA, of San Diego, California, pro se.
MICHAEL D. SNYDER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for defendant-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and TODD M. HUGHES, Deputy Director.
BRIZUELA v. US 2
__________________________
Before RADER, Chief Judge, and LOURIE and REYNA,
Circuit Judges.
PER CURIAM.
Francisco Brizuela appeals from a decision of the
United States Court of Federal Claims, Brizuela v. United
States, 103 Fed. Cl. 635 (2012), granting the government’s
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) of the Rules of the Court of Federal
Claims (“RCFC”). We affirm.
BACKGROUND
Brizuela was employed as a mail handler in Amarillo,
Texas, by the U.S. Postal Service (“USPS”) until he was
terminated on April 3, 1985, during his initial probation-
ary period. Brizuela, 103 Fed. Cl. at 637. On April 16,
1985, Brizuela filed a complaint at the Equal Employment
Opportunity Commission (“EEOC”), alleging that the
USPS discriminated against him on the basis of his
national origin. Id. On June 18, 1985, Brizuela and the
USPS executed a settlement agreement (the “Agree-
ment”). Id. The Agreement stated that Brizuela would
“submit a request for re-instatement into the Amarillo,
Texas Post Office as a . . . Career Mail Handler”; that
such request would “be given full, fair, and just considera-
tion” upon the availability of a mail handler position in
the Amarillo Post Office; that Brizuela would “experience
no acts of reprisals and/or retaliations” for filing the
EEOC complaint; and that “if and/or when[] there is
favorable consideration given to the re-instatement re-
quest,” Brizuela would serve a 90-day probationary pe-
riod. Appellee’s Appendix (“App.”) 48.
3 BRIZUELA v. US
On June 19, 1985, Brizuela submitted a request to be
reinstated as a mail handler at the Amarillo Post Office.
App. 53. In a letter dated July 31, 1985, the Amarillo
Postmaster informed Brizuela that the Amarillo Post
Office “ha[d] a suspension on adding new employees,” but
that Brizuela’s request “w[ould] be placed on file for one
year”—i.e., until July 31, 1986. App. 55.
More than two decades later, on February 13, 2006,
Brizuela filed an agency complaint at the USPS alleging
breach of the Agreement. Brizuela, 103 Fed. Cl. at 637.
On April 6, 2006, the USPS issued a final agency decision
concluding that the USPS had not breached the Agree-
ment. App. 57–59. On September 10, 2007, the EEOC
affirmed the decision of the USPS. App. 61–63.
On December 11, 2007, Brizuela filed a complaint for
breach of contract in the United States District Court for
the Southern District of California, which transferred the
suit to the Court of Federal Claims. Brizuela, 103 Fed.
Cl. at 637. On August 3, 2010, Brizuela filed an amended
complaint. App. 9–20. The amended complaint asserted
that the USPS breached the Agreement by failing to fully
and fairly consider Brizuela for reinstatement; that the
USPS breached the implied covenant of good faith and
fair dealing by not performing as reasonably expected;
and that the Postmaster, within the course and scope of
his authority for the USPS, intentionally deceived Bri-
zuela by stating that the Amarillo Post Office was not
currently hiring new employees. Brizuela, 103 Fed. Cl. at
637–38. The government moved to dismiss for lack of
subject matter jurisdiction under RCFC 12(b)(1), assert-
ing that Brizuela’s claims were barred by the six-year
BRIZUELA v. US 4
statute of limitations set forth in the Tucker Act, 28
U.S.C. § 2501. *
The Court of Federal Claims granted the motion to
dismiss. The court explained that the Amarillo Postmas-
ter’s letter of July 31, 2005, “served as notice to [Brizuela]
that on August 1, 1986, one year after the letter’s date,
his reinstatement request would no longer be on file, and
thus would not be considered if a mail handler position
became available beyond that date.” Brizuela, 103 Fed.
Cl. at 640. Accordingly, the court determined that, even
accepting as true Brizuela’s assertion that the govern-
ment breached the Agreement, the breach occurred on
August 1, 1986. The court also concluded that the accrual
suspension rule did not apply to Brizuela’s case, because
Brizuela knew or should have known that his reinstate-
ment request would not be considered after the passage of
one year, as the Amarillo Postmaster’s letter clearly
indicated. The court therefore dismissed Brizuela’s claim
as barred by the six-year statute of limitations under the
Tucker Act. Id.
Brizuela timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo a dismissal by the Court of Federal
Claims for lack of jurisdiction. Samish Indian Nation v.
United States, 419 F.3d 1355, 1363 (Fed. Cir. 2005). Like
the Court of Federal Claims, in reviewing the govern-
ment’s motion to dismiss we accept as true the facts
* The government also asserted that the Court of
Federal Claims lacked jurisdiction because the Agreement
was not money-mandating, but the court rejected that
argument. Brizuela, 103 Fed. Cl. at 639.
5 BRIZUELA v. US
alleged in Brizuela’s pleadings and draw all reasonable
inferences in his favor. See Henke v. United States, 60
F.3d 795, 797 (Fed. Cir. 1995).
In his informal pro se appellate brief, Brizuela argues
that the Court of Federal Claims incorrectly dismissed his
claim. Brizuela asserts that the court failed to apply the
accrual suspension rule under the Tucker Act, the Federal
Torts Claim Act, and the “grandfather clause.” Brizuela
further asserts that the Court of Federal Claims failed to
take into account a “misrepresentation by [an] ex-
attorney from the beginning of the case.” Brizuela Infor-
mal Br. 1. Finally, Brizuela contends that the outcome of
his case should not be controlled by Holmes v. United
States, 657 F.3d 1303 (Fed. Cir. 2011).
The government, in response, argues that the Court of
Federal Claims correctly held that Brizuela’s claim is
barred by the six-year statute of limitations. According to
the government, the court correctly applied Holmes in
concluding that the accrual suspension rule does not
apply to Brizuela’s claim, because the USPS informed
Brizuela in writing that it would retain his request for
reinstatement for only one year. The government also
urges us to disregard Brizuela’s alleged “misrepresenta-
tion by [an] ex-attorney,” as well as his assertions relating
to the Federal Tort Claims Act and the “grandfather
clause,” because those assertions were not raised before
the Court of Federal Claims.
We agree with the government that the Court of Fed-
eral Claims correctly dismissed Brizuela’s action as
barred by the statute of limitations. Under the Tucker
Act, “[e]very claim of which the United States Court of
Federal Claims has jurisdiction shall be barred unless the
petition thereon is filed within six years after such claim
BRIZUELA v. US 6
first accrues.” 28 U.S.C. § 2501. As we have explained,
“[a] cause of action cognizable in a Tucker Act suit accrues
as soon as all events have occurred that are necessary to
enable the plaintiff to bring suit, i.e., when all events have
occurred to fix the Government’s alleged liability, enti-
tling the claimant to demand payment and sue . . . for his
money.” Martinez v. United States, 333 F.3d 1295, 1303
(Fed. Cir. 2003) (en banc) (internal quotation marks
omitted).
The Amarillo Postmaster’s letter of July 31, 1985,
stated clearly that Brizuela’s reinstatement request
would “be placed on file for one year.” App. 55. The Court
of Federal Claims correctly concluded that that letter
served as a notice to Brizuela that his reinstatement
request would no longer be considered if a mail handler
position became available beyond the date of August 1,
1986. Thus, even taking as true for purposes of Brizuela’s
argument his assertion that the USPS breached the
Agreement by (among other things) failing to fully and
fairly consider him for reinstatement, all events occurred
as of August 1, 1986. At that time, Brizuela knew of the
facts giving rise to his claim for an alleged breach of
contract and could have filed suit against the government.
The six-year statute of limitations thus ran from August
1, 1986, and expired well before he filed his claim in this
case.
The Court of Federal Claims also correctly held that
the accrual suspension rule did not apply to Brizuela’s
claim. The accrual suspension rule is “strictly and nar-
rowly applied” and requires a plaintiff to show either
(1) “that defendant has concealed its acts with the result
that plaintiff was unaware of their existence,” or (2) “that
[the plaintiff’s] injury was inherently unknowable at the
accrual date.” Martinez, 333 F.3d at 1319 (internal
7 BRIZUELA v. US
quotation marks omitted). Brizuela’s allegations satisfy
neither requirement. As the Court of Federal Claims
concluded, the Postmaster’s letter clearly communicated
to Brizuela that his letter would be placed on file for only
one year, and that, as a result of the letter, Brizuela
“knew or should have known his reinstatement request
would not be considered after the passage of one year.”
Brizuela, 103 Fed. Cl. at 640.
Brizuela’s remaining arguments are unpersuasive.
Brizuela’s position is not supported by Holmes v. United
States, in which the accrual suspension rule was held to
apply because Holmes was not “reasonably . . . on inquiry
notice” of the government’s breach of the agreement at
issue. 657 F.3d at 1322. In contrast to Holmes, Brizuela
was put on notice by the Amarillo Postmaster’s letter, as
the Court of Federal Claims concluded. Brizuela, 103
Fed. Cl. at 640. Moreover, Brizuela’s other asserted bases
for relief, including the Federal Tort Claims Act, even if
not waived, do not alter our conclusion that Court of
Federal Claims correctly dismissed Brizuela’s claim as
barred by the six-year statute of limitations under § 2501.
Accordingly, we agree with the judgment of the Court
of Federal Claims dismissing Brizuela’s claim for lack of
subject matter jurisdiction.
CONCLUSION
We have considered Brizuela’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
the judgment of the Court of Federal Claims is
AFFIRMED
BRIZUELA v. US 8
COSTS
No costs.