Mallek v. United States ( 2016 )

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No. l5-890 C
FILED
(FiledJanuary 4,2016) JAi{ - { 20t6
NOT FOR PUBLICATION U,S. COURT OF
FEDERAL CLAIMS
BARRY D. MALLEK,
Plaintiff,
v. Statute of Limitations; Breach of
Contract.
THE UNITED STATES,
Defendant.
ORDER
Plaintiff filed the instant complaint on August 18, 2015. See Doc. L He
alleges entitlement to damages as a result ofthe defendant's breach ofa contract that
plaintiff entered into with the United States Department of Homeland Security to
settle various claims on April 7, 2006. See Doc. 1-2. Defendant has filed a motion
to dismiss the complaint on the bases that the court lacks jurisdiction and that
plaintiff has failed to state a claim upon which relief can be granted. See Doc. 6.
As part ofthe settlement, defendant agreed to purchase an annuity contract for
plaintiff s benefit, guaranteed for 30 years and for the life of plaintiff. SeeDoc. 1-2
at 3. The agreement stated that plaintiff would receive monthly payments, and that
the arrnuity payments could not be assigned. See id. Purchasing the annuity contract
was defendant's only obligation with respect to these payments under the settlement
agreement. See id.
On June 6, 2008, a California state judge approved a Qualified Domestic
Relations Order signed by plaintiff and his former wife, Alice Mallek. See Doc. 1-
1. In the order, plaintiff assigned a substantial portion of his monthly annuity
payment to Ms. Mallek. See Doc. 1-1 at 3. Plaintiff now claims that the Department
of Homeland Security breached the original settlement agreement by allowing him
to assign part of his monthly annuity payment, and seeks damages to compensate
him for the payments he did not personally receive. See Doc. 1 al7.
Irrespective of the merits of plaintiff various legal and equitable arguments,
s
he must, as a threshold matter, carry the burden of establishing this court's
jurisdiction overhis claims. See Reynolds v. Army & Air Force Exch. Serv.,846F.2d
746,748 (Fed. Cir. 1988) (stating that plaintiff "bears the burden of establishing
subject matter jurisdiction by a preponderance of the evidence").
Plaintiff s claim is subject to a six-year statute of limitations, as set forth in
28 U.S.C. $ 2501, which states: "Every 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 first accrues." This limitation is jurisdictional in
nature, and if plaintiff fails to file a claim within six years, this court is without
authority to consider it. See John R. Sand & Gravel Co. v. United States,552U.5.
130, 133-136 (2008).
A claim against the govemment accrues, "only when all the events which fix
the govemment's alleged liability have occurred and the plaintiff was or should have
been aware of their existence." Hopland Band of Pomo Indians v. United Stares, 855
F.2d 1573,1577 (Fed. Cir. 1988) (emphasis in original). In this case, plaintiff claims
that the assignment of a portion of his annuity to Ms. Mallek constituted a breach of
the settlement agreement. And because his signature appeared on the document
approving the assignment, he was aware ofthe alleged breach on June 6,2008, the
date on which the Califomia couft approved the Qualified Domestic Relations Order.
Thus, any claim that the assignment breached the seftlement agreement accrued on
June 6, 2008.
Plaintiff filed the instant complaint on August 1 8, 2015, more than seven years
after accrual. Because the statute of limitations is jurisdictional in nature, this court
is simply without authority to consider the merits of plaintiff s complaint.
The defendant's motion is GRANTED, and the complaint is hereby
DISMISSED. The clerk is directed to enter judgment accordingly.
SO ORDERED.
es F. Merow,
Senior Judge