Mallek v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARRY D. MALLEK,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1568
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00890-JFM, Senior Judge James F.
Merow.
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Decided: June 14, 2016
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BARRY D. MALLEK, Las Vegas, NV, pro se.
SARAH CHOI, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., REGINALD
T. BLADES, JR.
______________________
Before REYNA, HUGHES, and STOLL, Circuit Judges.
2 MALLEK v. US
PER CURIAM.
Barry Mallek appeals from a decision of the Court of
Federal Claims dismissing his complaint as time-barred
under 28 U.S.C. § 2501. We affirm.
BACKGROUND
Mr. Mallek entered into a settlement agreement with
the Department of Homeland Security (“DHS”) in 2006.
Pursuant to the settlement agreement, DHS purchased
an annuity contract for Mr. Mallek, which would provide
Mr. Mallek monthly payments guaranteed for 30 years
and for the life of Mr. Mallek. The settlement agreement
stated that the annuity payments were non-assignable.
On June 6, 2008, a California state judge approved a
stipulated Qualified Domestic Relations Order (“QDRO”),
which was signed by Mr. Mallek and his former wife.
Under the QDRO, Mr. Mallek assigned a portion of his
monthly annuity payments to Ms. Mallek. On August 18,
2015, Mr. Mallek filed a complaint in the Court of Federal
Claims alleging that DHS breached the settlement
agreement by allowing the assignment of a portion of his
monthly annuity payment.
The Court of Federal Claims dismissed Mr. Mallek’s
complaint for lack of jurisdiction, finding that
Mr. Mallek’s complaint was filed outside of the six-year
statute of limitations set forth in 28 U.S.C. § 2501. Spe-
cifically, the Court of Federal Claims found that
Mr. Mallek was aware of the alleged breach—the assign-
ment of his annuity payments—as of June 6, 2008, the
date the court entered the QDRO signed by Mr. Mallek.
As such, the Court of Federal Claims found that
Mr. Mallek’s claim accrued on that date, yet his complaint
was filed more than seven years later.
Mr. Mallek appeals, and we have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3).
MALLEK v. US 3
DISCUSSION
We review de novo a dismissal by the Court of Federal
Claims for lack of jurisdiction. FloorPro, Inc. v. United
States, 680 F.3d 1377, 1380 (Fed. Cir. 2012). “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.”
28 U.S.C. § 2501. “This six-year limitations period is
jurisdictional and may not be waived or tolled.” FloorPro,
680 F.3d at 1380–81 (citing John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 136–39 (2008)). A claim
against the government generally accrues “when all the
events which fix the government’s alleged liability have
occurred and the plaintiff was or should have been aware
of their existence.” Hopland Band of Pomo Indians v.
United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988).
We agree with the Court of Federal Claims that
Mr. Mallek’s claim accrued on June 6, 2008. The assign-
ment of Mr. Mallek’s annuity to his former wife constitut-
ed the alleged breach. Mr. Mallek was aware of this
assignment as of June 6, 2008, as evidenced by his signa-
ture on the QDRO. Mr. Mallek argues, however, that his
claim is not barred by § 2501 because, under the continu-
ing claim doctrine, DHS continues to breach the settle-
ment agreement every month that his annuity payment is
diverted to his former wife. We disagree.
“In order for the continuing claim doctrine to apply,
the plaintiff’s claim must be inherently susceptible to
being broken down into a series of independent and
distinct events or wrongs, each having its own associated
damages.” Brown Park Estates–Fairfield Dev. Co. v.
United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997). In
Brown, we explained that there was not a continuing
claim where “plaintiffs really only pointed to one alleged
wrong by the government, which accrued all at once at
one point in time, even though it may have had later
4 MALLEK v. US
adverse effects.” Id. at 1457. We further explained that
even nonpayment of annuities was not a continuing claim,
but merely damages, if it resulted from a single alleged
violation by the government. Id. Similarly here, DHS’s
alleged breach is not continuing in nature, but was fixed
when Mr. Mallek’s annuity was assigned to his former
wife.
We therefore agree with the Court of Federal Claims
that Mr. Mallek’s August 18, 2015 complaint, filed more
than seven years after his claim accrued on June 6, 2008,
is time-barred under § 2501. We have considered
Mr. Mallek’s remaining arguments and find them uncon-
vincing. As such, we affirm the dismissal of Mr. Mallek’s
complaint for lack of jurisdiction.
AFFIRMED
COSTS
No costs.