Brisbin v. United States , 629 F. App'x 1000 ( 2015 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    JOHN C. BRISBIN, DBA CONSTRUCTION
    DEVELOPMENT SYSTEMS,
    Plaintiff-Appellant
    v.
    UNITED STATES,
    Defendant-Appellee
    ______________________
    2015-5067
    ______________________
    Appeal from the United States Court of Federal
    Claims in No. 1:14-cv-00389-JFM, Senior Judge James F.
    Merow.
    ______________________
    Decided: December 10, 2015
    ______________________
    JOHN C. BRISBIN, Fresno, CA, pro se.
    LAUREN MOORE, Commercial Litigation Branch, Civil
    Division, United States Department of Justice, Washing-
    ton, DC, for defendant-appellee. With her on the brief
    were BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
    DONALD E. KINNER.
    ______________________
    2                                                BRISBIN v. US
    Before MOORE, CLEVENGER, and REYNA, Circuit Judges.
    PER CURIAM.
    Pro se appellant John C. Brisbin brought claims
    against the United States for breach of contract relating
    to his road work in Sequoia and Kings Canyon National
    Parks. He now appeals from a judgment of the Court of
    Federal Claims dismissing his contract claims for lack of
    subject matter jurisdiction. See Brisbin v. United States,
    
    119 Fed. Cl. 701
     (2015).
    For the reasons stated below, we affirm.
    BACKGROUND
    In March of 2009, Plaintiff John C. Brisbin (individu-
    ally and DBA as Construction Development Systems)
    entered into a contract with the United States (“U.S.” or
    “the Government”) relating to road construction and
    repair on the Generals Highway in Sequoia and Kings
    Canyon National Parks. During the course of the Plain-
    tiff’s road work, Plaintiff submitted five claims for addi-
    tional payments to the Government contracting officer
    (“CO”) relating to modifications and changes to the con-
    tract. The total amount of each claim exceeded $10,000
    per claim.
    The CO denied each of the respective claims on May
    5, 2010, March 10, 2010, June 3, 2010, May 3, 2012, and
    November 29, 2012. In accordance with 
    41 U.S.C. § 7103
    (d) (2011), 1 each of the CO’s decisions denying each
    claim was in writing and was mailed to Plaintiff. The
    contents of each written denial included a statement of
    the reason for the decision. See 
    41 U.S.C. § 7103
    (e). Addi-
    tionally, each decision “inform[ed] the contractor of the
    1 
    41 U.S.C. § 7103
     was formerly cited as 
    41 U.S.C. § 604
     and 
    41 U.S.C. § 605
    .
    BRISBIN v. US                                               3
    contractor’s rights” as those rights are defined in Chapter
    71 of Title 41 of the U.S. Code. See 
    id.
     Specifically, each of
    the CO’s letters identified the proper forums in which
    Plaintiff could seek judicial review of the CO’s decision,
    and identified the deadlines for filing appeals in each
    forum. For example, the CO’s letter of May 5, 2010 (deny-
    ing Plaintiff’s February 8, 2010 claim) stated:
    You may appeal this decision to the Civilian
    Board of Contract Appeals. If you decide to ap-
    peal, you must, within 90 days from the date you
    receive this decision, mail or otherwise furnish
    written notice to the Civilian Board of Contract
    Appeals . . . .
    See Defendant-Appellee’s Appendix at A33.
    Importantly, each letter also notified Plaintiff that
    “[a]s an alternative to the Board of Contract Appeals, you
    may bring an action directly to the United States Court of
    Federal Claims within 12 months of the date you receive
    this decision.” See 
    id.
     The letters did not state that an
    appeal could or should be brought in a U.S. District Court.
    Notwithstanding the advice in each of the five letters,
    Plaintiff filed a complaint for breach of contract against
    the U.S. in the U.S. District Court for the Eastern District
    of California on May 13, 2013 (more than 12 months after
    four of the five denials were issued). Plaintiff’s complaint
    sought damages of $823,548.83 for alleged breach of
    contract arising from the claims denied by the CO. On
    March 12, 2014, ruling on a motion by the Government to
    dismiss the complaint, the district court held that the
    Little Tucker Act, 
    28 U.S.C. § 1346
    (a)(2) (2013), limits to
    district courts claims against the Government not exceed-
    ing $10,000. Because Plaintiff’s claims alleged damages in
    excess of $10,000, the district court held that it lacked
    jurisdiction to hear Plaintiff’s complaint, and that exclu-
    sive jurisdiction lay with the U.S. Court of Federal Claims
    under 
    28 U.S.C. § 1491
    (a) (2011). The district court there-
    4                                             BRISBIN v. US
    fore dismissed the case. The district court did not consider
    whether to transfer the case to the Court of Federal
    Claims pursuant to 
    28 U.S.C. § 1631
     (1982).
    Shortly after the district court’s dismissal, on May 6,
    2014, Plaintiff filed a complaint in the Court of Federal
    Claims asserting substantially the same claims as in the
    district court complaint. On motion from the Government,
    the Court of Federal Claims dismissed the complaint for
    lack of subject matter jurisdiction. While acknowledging
    that Plaintiff was seeking relief in the proper forum, the
    Court of Federal Claims held that Plaintiff had not filed
    his claims within the 12-month period mandated by 
    41 U.S.C. § 7104
    (b)(3) (2011).
    Plaintiff now appeals the Court of Federal Claim’s
    dismissal of his complaint.
    DISCUSSION
    This court reviews the Court of Federal Claims’ dis-
    missal for lack of subject matter jurisdiction de novo.
    Brandt v. United States, 
    710 F.3d 1369
    , 1373 (Fed. Cir.
    2013). The plaintiff bears the burden of establishing
    jurisdiction by a preponderance of the evidence. 
    Id.
    A
    We agree with the Court of Federal Claims that
    Plaintiff’s contract claims are time barred. A contractor
    displeased with a CO’s decision is given twelve months
    within which to appeal that decision to the Court of
    Federal Claims. 
    41 U.S.C. § 7104
    (b)(3). If this time dead-
    line is not met, the CO’s decision becomes final, conclu-
    sive, and not subject to review. 
    41 U.S.C. § 7103
    (g).
    The most recent rejection of Plaintiff’s claims occurred
    on November 29, 2012. However, Plaintiff did not file a
    complaint with the Court of Federal Claims until May 6,
    2014, approximately one year and five months after the
    most recent rejection (and even longer after the older
    BRISBIN v. US                                             5
    rejections). Thus, the Court of Federal Claims correctly
    held that because Plaintiff did not file his complaint
    within twelve months of the rejection of any his claims,
    the court lacked jurisdiction to hear his complaint.
    On appeal to this court, Plaintiff’s primary argument
    appears to be that the letters sent to the CO were not
    “claims” as the term is used in 
    41 U.S.C. § 7103
    , but were
    rather “potential claims” or “unresolved issues.” Plaintiff
    argues that “potential claims” do not become “claims”
    until the execution of a “Release of Claims” form, which
    Plaintiff alleges the Government never provided. 2 Plain-
    tiff argues that his “potential claims” did not become
    “claims” until the filing of his complaint with the Court of
    Federal Claims, and thus, were timely. We reject this
    argument.
    The Contract Disputes Act (“CDA”) grants the Court
    of Federal Claims jurisdiction over actions brought on
    claims within twelve months of a contracting officer’s final
    decision. K-Con Bldg. Sys., Inc. v. United States, 
    778 F.3d 1000
    , 1005 (Fed. Cir. 2015); see also 
    41 U.S.C. § 7104
    (b).
    “Jurisdiction requires both that a claim meeting certain
    requirements have been submitted to the relevant con-
    tracting officer and that the contracting officer have
    issued a final decision on that claim.” K-Con, 778 F.3d at
    at 1005.
    A “claim,” as that term is used in the CDA, is “a writ-
    ten demand or written assertion by one of the contracting
    parties seeking, as a matter of right, the payment of
    money in a sum certain, the adjustment or interpretation
    of contract terms, or other relief arising under or relating
    2     The Government disputes this allegation in their
    brief, and asserts that “final voucher and release of claims
    forms” were sent to Plaintiff on July 3, 2013.
    6                                             BRISBIN v. US
    to the contract.” Reflectone, Inc. v. Dalton, 
    60 F.3d 1572
    ,
    1575 (Fed. Cir. 1995) (quoting regulation then codified at
    
    48 C.F.R. § 33.201
    ; current version at 
    48 C.F.R. § 52.233
    -
    1).
    A claim need not be submitted in any particular form
    or use any particular wording, but it must provide a clear
    and unequivocal statement that gives the contracting
    officer adequate notice of the basis and amount of the
    claim. K-Con, 778 F.3d at 1005. The contracting officer
    “shall issue a decision in writing” that is mailed or other-
    wise provided to the contractor. 
    41 U.S.C. § 7103
    (d). The
    decision must “state the reasons for the decision reached
    and shall inform the contractor of the contractor’s rights
    as provided in this chapter.” 
    Id.
     at § 7103(e).
    In the present case, each of Plaintiff’s letters to the
    Government were written demands by Plaintiff seeking,
    as a matter of right under the contract, payment of money
    in a sum certain by the Government. Indeed, each of
    Plaintiff’s letters contained a certification stating, inter
    alia, “I certify that the claim is made in good faith.”
    Plaintiff’s letters were thus clearly “claims” as that term
    is used by the CDA.
    Further, in denying Plaintiff’s claims, the CO’s letters
    stated unequivocally that “[t]his is the Contracting Of-
    ficer’s final decision on the matter and is being issued
    pursuant to FAR 52.233-1, Disputes, of the contract.” The
    CO’s letters similarly informed Plaintiff that he had a
    right to appeal the decision to the Civilian Board of Con-
    tract Appeals, or bring an action directly to the Court of
    Federal Claims. Thus, the CO’s letters were clearly the
    decisions of the CO under the statute. See 
    41 U.S.C. § 7104
    (b)(3) (contractor must file an appeal within 12
    months of “the date of receipt of a contracting officer’s
    decision under section 7103 of this title”).
    Assuming for the sake of argument that Plaintiff nev-
    er received a “Release of Claims” form, we do not see how
    BRISBIN v. US                                             7
    that changes the analysis above. The Government gener-
    ally requires a release of claims from contractors prior to
    making final payment under a contract. See e.g. 
    48 C.F.R. § 52.232-5
    (h)(3) (2014). Whether a release form is provid-
    ed to a contractor, or the contractor signs the release
    form, is irrelevant to whether a claim existed in the first
    place. Indeed, 
    48 C.F.R. § 52.232-5
    (h)(3) clearly contem-
    plates that “claims,” to the extent there are any, exist
    prior to the execution of the release, else there would be
    no reason for a release in the first place. Cf. Augustine
    Med., Inc. v. Progressive Dynamics, Inc., 
    194 F.3d 1367
    ,
    1372 (Fed. Cir. 1999) (explaining that general release
    language in a contract usually constitutes a waiver of all
    claims and causes of action arising under or by virtue of
    the contract). The Plaintiff’s letters to the CO demanded
    monetary payments under his contract with the Govern-
    ment. Those demands were each denied in writing by the
    CO, which started the 
    41 U.S.C. § 7104
    (b)(3) clock ticking.
    B
    For similar reasons, we also reject Plaintiff’s argu-
    ment that the relevant statute of limitations for filing
    with the Court of Federal Claims is the six year limitation
    set out in 
    41 U.S.C. § 7103
    (a)(4)(A). The relevant statuto-
    ry language referred to by Plaintiff is as follows:
    Each claim by a contractor against the Federal
    Government relating to a contract and each claim
    by the Federal Government against a contractor
    relating to a contract shall be submitted within 6
    years after the accrual of the claim.
    
    41 U.S.C. § 7103
    (a)(4)(A).
    The six year time limit in § 7103(a)(4)(A) pertains to
    the statute of limitations for submitting a claim to the
    Government after the claim accrues. A claim accrues as of
    “the date when all events, that fix the alleged liability of
    either the Government or the contractor and permit
    8                                               BRISBIN v. US
    assertion of the claim, were known or should have been
    known.” Sikorsky Aircraft Corp. v. United States, 
    773 F.3d 1315
    , 1320 (Fed. Cir. 2014) (quoting 
    48 C.F.R. § 33.201
    ).
    Plaintiff’s claims were timely submitted to the CO after
    accrual per 
    41 U.S.C. § 7103
    (a)(4)(A). However, each final
    decision of the CO denying Plaintiff’s respective claims
    started a new 12-month clock running on the time to file
    an appeal with the Court of Federal Claims under 
    41 U.S.C. § 7104
    (b)(3). It is this latter deadline that Plaintiff
    missed, and which deprives the Court of Federal Claims
    of jurisdiction to hear his complaint.
    C
    In the court below, Plaintiff appears to have argued
    that he relied on 
    28 U.S.C. § 1631
     in his decision to file in
    the district court (rather than in the Court of Federal
    Claims), presumably believing that if his selection of
    forum was wrong the district court would transfer his
    case to the correct forum, rather than dismissing it out-
    right. As the court below noted, in the Ninth Circuit §
    1631 is mandatory in nature, i.e. a district court must
    consider whether to transfer a case pursuant to § 1631
    once it has determined that it lacks jurisdiction even if no
    party moved the court for such a transfer. See Hays v.
    Postmaster General, 
    868 F.2d 328
    , 331 (9th Cir. 1989).
    Under Hays, after determining that it lacked jurisdic-
    tion to hear Plaintiff’s complaint, the district court was
    required to determine whether to transfer Plaintiff’s
    complaint to another court with jurisdiction to hear his
    case. The district court made clear that it understood that
    “exclusive jurisdiction” over Plaintiff’s claims was with
    the Court of Federal Claims. See Defendant-Appellee’s
    Appendix at A126. Despite this, the district court failed to
    examine whether “in the interest of justice,” it should
    transfer Plaintiff’s claims to the Court of Federal Claims.
    See Hays, 
    868 F.2d at 331
    . At least one of Plaintiff’s
    claims would not have been time barred had the district
    BRISBIN v. US                                              9
    court transferred the case instead of dismissing it and
    forcing Plaintiff to file a new complaint. But because the
    deadline for filing with the Court of Federal Claims had
    passed by the time the district court dismissed Plaintiff’s
    claims, the district court’s error effectively denied Plain-
    tiff of his statutory right to judicial review of the CO’s
    denial of at least one of his claims. Indeed, the district
    court’s error frustrated the very purpose of § 1631, which
    is to cure the prejudice to litigants (such as the Plaintiff)
    who mistakenly file in the wrong forum. See Dalton v. Sw.
    Marine, Inc., 
    120 F.3d 1249
    , 1250 (Fed. Cir. 1997)
    (“[S]ection 1631 is a remedial statute designed to elimi-
    nate any prejudice that results from filing in an improper
    forum”); Rodriguez-Roman v. I.N.S., 
    98 F.3d 416
    , 422 (9th
    Cir. 1996) (“The purpose of the statute is to aid litigants
    who were confused about the proper forum for re-
    view . . . .” (internal quotation marks and citation omit-
    ted)).
    While recognizing the prejudice to Plaintiff that has
    resulted from the district court’s error, we agree with the
    court below that it lacked authority to determine whether
    or not the district court erred in dismissing Plaintiff’s
    earlier case.
    Without expressing any opinion on the merits of such
    a motion, we note (as did the court below) that a litigant
    may move under FED. R. CIV. P. 60 for relief from a court’s
    final judgment or order such as the district court’s dismis-
    sal of Plaintiff’s claim. 3
    3   We also note that the Plaintiff did not ask the
    court below or this court to consider whether equitable
    tolling might allow Plaintiff to file his complaint out of
    time. We decline to address that issue in the first in-
    stance.
    10                                       BRISBIN v. US
    CONCLUSION
    Because Plaintiff’s contract claims were untimely
    filed, we affirm the decision of the Court of Federal
    Claims.
    AFFIRMED
    COSTS
    No Costs.