Nussbaum v. United States

3Jn tbe Wniteb ~tates C!Court of jfeberal C!Claims

No. 19-376C

(Filed: September 20, 2019)

)

THOMAS NUSSBAUM, ) Contract dispute subject to the Contract

) Disputes Act, 41 U.S.C. §§ 7101-7109;

Plaintiff, ) timeliness; equitable tolling

)

v. )

)

UNITED STATES, )

)

Defendant. )

--------------)

Thomas Nussbaum, prose, Millbrae, California.

Sonia Orfield, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With her on the briefs were

Joseph H. Hunt, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director,

and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff Thomas Nussbaum has brought suit against the United States acting through the

Federal Bureau of Prisons ("Bureau" or "Bureau of Prisons"), alleging that the Bureau failed to

pay him in full for work done to replace boilers at the Federal Correction Institution, Victorville,

California ("Victorville"). Comp!. at 5. Mr. Nussbaum seeks $201,735 in damages and lost

profits, plus interest and attorneys' fees and costs. Comp!. at 19-20.

Mr. Nussbaum filed his complaint in March 2019. He alleges four counts against the

Bureau of Prisons: (1) fraudulent and intentional misrepresentation when Victorville induced

him to believe his bid was accepted or that he would be a sub-contractor on a bonded

construction contract but was instead made a sub-supplier without a bond on an impermissible

purchase order, Comp!. at 15-16; (2) negligent misrepresentation on the same premise, Comp!. at

16; (3) a breach of the implied covenant of good faith and fair dealing for the misrepresentations

and for engaging in improper procurement practices, Comp!. at 16; and (4) unjust enrichment for

not paying for labor and parts supplied by Mr. Nussbaum, Comp!. at 17. Mr. Nussbaum's

damages consist of $45,000 for being induced improperly by the Bureau and prime contractor,

Cal Inc., to lower his bid, $62,113 for uncompensated work requested and performed by the

Bureau that was outside the original contract, $80,375 for costs incurred due to actions of the

prime contractor that necessitated Mr. Nussbaum to perform extra work and bring lawsuits

against several subcontractors and the prime contractor, and $14,247 for lost profit at a rate of

15% on the $63,133 in change orders and $37,806 in extra work necessitated by actions of the

prime contractor. Comp!. at 17-19. Mr. Nussbaum provided 19 exhibits, which consisted of,

among other things, the solicitation, the contract, various letters sent by Mr. Nussbaum to the

contractor, Cal Inc., and the Bureau of Prisons disputing work performance or payments,

invoices for Mr. Nussbaum's expenses for the project, and an investigation by the Bureau of

Prisons into Mr. Nussbaum 's allegations of improper procurement practices by the Bureau

relating to his work. Comp!. Exs. 1-19 .1

Pending before the court is the government's motion to dismiss Mr. Nussbaum's

complaint for lack of subject-matter jurisdiction. Def. 's Mot. to Dismiss ("Def. 's Mot."), ECF

No. 12. The government contends that Mr. Nussbaum's complaint is barred by the six-year

statute of limitations prescribed under 28 U.S.C. § 2501 and that Mr. Nussbaum, as a sub-

supplier, lacks standing to sue the government. See generally Def. 's Mot. Mr. Nussbaum has

responded in opposition, see Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n."), ECF No. 15,

and defendant has filed a reply, see Def.'s Reply to Pl.'s Response ("Def.'s Reply"), ECF No.

17. A hearing was held on August 29, 2019. See Hr' g Tr. 3 :4 to 29:3 (Aug. 29, 2019). 2

The court concludes that Mr. Nussbaum's complaint falls outside the statute of

limitations imposed on claims arising under the Contract Disputes Act ("CDA''), 41 U.S.C. §§

7101-7109. But because the statute of limitations under that Act does not go to jurisdiction and

may be equitably tolled, the court addresses the standard for equitable tolling. In that respect, the

court finds that Mr. Nussbaum has not satisfied the exacting standard for equitable tolling, and

thus the court dismisses his suit for failure to state a claim upon which relief can be granted

under the CDA.

BACKGROUND 3

A. Contract Solicitation Process

Mr. Nussbaum supplied Victorville with two central plant boilers in 2000. Comp!. at 9.

At that time, Mr. Nussbaum had quoted $200,000 to change the burners to comply with certain

nitrogen oxide emission requirements, but Victorville opted instead to implement a Selective

Catalytic Reduction ("SCR") system, which Mr. Nussbaum alleges cost over $1 million. Comp!.

at 9. Despite its cost, the SCR system failed to meet the emission standards, requiring

Victorville to implement upgrades that would. Comp!. at 9.

Accordingly, during the fall of 2001, Victorville solicited bids for a construction project

to upgrade the two existing boilers and install a new, third boiler. Comp!. Ex. 1 at 2. Mr.

Nussbaum and two other companies submitted bids. See Comp!. Ex. 1 at 2. The lowest of the

three, Mr. Nussbaum offered to complete the project for $320,000. Comp!. Ex. 12 at 2. The

1

Some of Mr. Nussbaum's exhibits are individually numbered, but because others are not

individually paginated, citations to page numbers refer to the page markings as assigned by the

court's Electronic Filing System.

2

The date will be omitted from further citations to the hearing transcript.

3

This background does not constitute findings of fact by the court. Rather, its sole

purpose is to provide context for an analysis of the government's motion to dismiss.

2

other bidders were Southern California Boiler, Inc. and Automatic Boiler Company, which had

bid $331,130 and $343,386, respectively. Comp!. Ex. 14 at 2-7.

Mike Fief, Victorville's General Foreman, informed Mr. Nussbaum on November 21,

2001 that he "would really like to see the bid go to Cal Inc." because he had an ongoing working

relationship with them. Comp!. Ex. 11 at 2. Cal Inc. had not bid on the project but it did have a

preexisting Schedule Contract with General Services Administration ("GSA") to provide

environmental services. Comp!. at 6. Consequently, Mr. Nussbaum's quote was forwarded to

Cal Inc., which, upon receipt of the bid, made some modifications to his proposals and requested

that he re-quote his price based on those changes. See Comp!. at 17. Mr. Nussbaum did not

think the alterations would meet the required emission standards, but he lowered his price from

$320,000 to $275,000 on the understanding that Cal Inc. had Victorville's authority to make the

changes. See Comp!. at 17.

Victorville then arranged for Cal Inc. to "broker" the project under its Schedule Contract

while Mr. Nussbaum supplied materials and performed the actual construction work. Comp!. at

6. To that end, Victorville's Contracting Officer, Contigny Arakaki, issued a purchase order to

Cal Inc. for a total price of$398,141. Comp!. at 6. The use ofa purchase order for this project

was "improper," Mr. Nussbaum alleges, because purchase orders are disallowed for construction

work. Comp!. at 6, 8. Moreover, the amount of the purchase order issued to Cal Inc. exceeded

Mr. Nussbaum's original bid amount by $78,141, a difference he regards as Cal Inc.'s

"commission" for Victorville's use of a Schedule Contract rather than directly issuing him a

construction contract. Comp!. at 6. He maintains that Victorville designed this arrangement to

circumvent GSA requirements for constrnction projects and to conceal the fact that Victorville

had imprudently spent a significant amount of money on the unsuccessful SCR system when it

could have implemented the necessary changes up front for only $200,000 based on the quote

Mr. Nussbaum provided when he did the initial work. See Comp!. at 5-6, 14.

B. Contract Performance and Disputes

Work on the boiler project was well underway by May 2002, but disagreements soon

emerged. Victorville requested a series of what Mr. Nussbaum characterizes as "change orders,"

which involved work such as changing pipes, adding a flue stack, and pouring a new cement pad.

Comp!. at 17. Mr. Nussbaum considered these to be change orders because he had not included

them in his bid, but Victorville countered that the matters had been discussed in the original

project walk-throughs and that Mr. Nussbaum was merely "trying to compensate for his losses"

after underbidding the job. Comp!. Ex. 15 at 48. Nonetheless, reluctant to stop work and

assuming the disagreements would be resolved, Mr. Nussbaum and his subcontractors continued

to perform. See Comp!. Ex. 15 at 51. Victorville never paid for the disputed amounts.

Then, Mr. Nussbaum asserts that in October 2002, Cal Inc. "interceded" with Mr.

Nussbaum's subcontractors, Desert Boiler and Bay City, directly paying them more than they

were entitled to receive before the work was finished and doing so out of funds he asserts Cal

Inc. owed to him. See Comp!. at 18. Further complicating matters, after receiving payment from

Cal Inc., Desert Boiler left the job unfinished, leaving Mr. Nussbaum to finish the work and later

requiring him to incur $23,000 oflegal fees to obtain only a partial recovery from Desert Boiler.

See Comp!. at 18.

3

C. Post-Completion Developments

Mr. Nussbaum had completed the project by April 9, 2003, when Victorville issued final

acceptance. Comp!. at 7. He then pursued two separate but simultaneous courses of action: he

filed a complaint with the Office of the Inspector General and he brought a legal action in state

court against Cal Inc. for the remaining amount due that it refused to pay him. See Comp!. at 7;

see also Comp!. Ex. 7 at 4.

Mr. Nussbaum's complaint with the Office of the Inspector General was filed in

September 2004, and alleged that Victorville did not award the contract to the lowest bidder, that

Cal Inc. was not qualified to do the work, that the use of a purchase order was inappropriate, and

that the Contracting Officer, Contigny Arakaki, told him she did not sign the purchase order and

that someone must have forged her signature. See Comp!. Ex. 7 at 4. The Inspector General

investigated the matter and, in a redacted report issued by Special Agent Kenneth Strange in

October 2004, concluded that "the funding mechanism for the conh·act was appropriate."

Comp!. Ex. 7 at 4. Ms. Arakaki reportedly told Strange that she had signed the purchase order,

that she did not accept any bribes relating to the contract, and that she found nothing "suspicious

about the manner in which the purchase order was completed." Com pl. Ex. 7 at 6-7.

Mr. Nussbaum's legal action against Cal Inc. was brought at some time before October

2004, and a settlement eventually was reached by February 2010. See Comp!. at 12.4 The

settlement included a recovery of $80,000 from Cal Inc. but that amount did not include any

compensation for the disputed change orders, which Victorville had never paid to anyone. See

Comp!. at 18. Therefore, Cal Inc. also agreed to issue a Form SF30 to Victorville requesting

payment of expenses associated with the change orders, which it did effective January 5, 2010.

See Comp!. at 18; see also Comp!. Ex. 6. Mr. Nussbaum sent the SF30 to Victorville and the

Bureau offices in Grand Prairie, Texas and Dublin, California. Comp!. at 7. He received no

response from Ms. Arakaki. Comp!. at 12. The only acknowledgement he received was from

John Wenkman in Grand Prairie on March 10, 2010. Comp!. at 7; see also Comp!. Ex. 3. Mr.

Wenkman denied the claim on grounds that Mr. Nussbaum was an improper party to make the

submission, noting that "the formal request for payment of these services should be requested by

Cal Inc." because the contract was with Cal Inc. Comp!. Ex. 3 at 2.

What happened after Nussbaum received the denial from Mr. Wenkman is not entirely

evident. Mr. Nussbaum provided the court no information concerning actions he took with

respect to his claim during the nine-year period from when he received the denial in March 2010

to the time he filed suit in this court in March 2019. In a hearing conducted by the court on

August 29, 2019, Mr. Nussbaum suggested that he had taken actions with the Government

Accountability Office ("GAO") related to his claims during this period, and the court requested

that he produce information regarding those efforts. Hr'g Tr. 17:21 to 19:5, 25:4 to 26:15. Mr.

Nussbaum subsequently submitted a chain of emails with the GAO that were sent in August

2019, after he had filed this suit. See Scheduling Order, ECF No. 18; see also Pl.'s Resp. to

Order, ECF No. 21. Those emails show that Mr. Nussbaum contacted Lacy Vong at the GAO on

4

None of the parties' filings specify exactly when this litigation occurred, but the

Inspector General investigation report, dated October 2004, indicates that the Cal Inc. litigation

had commenced by that time. Comp!. Ex. 7 at 5. Likewise, the SF30 that emerged from the

settlement with Cal Inc. was signed in early January 2010, indicating that litigation had

concluded around that time. Comp!. Ex. 6 at 2.

4

August 23, 2019 and again on August 27, 2019, alleging that Ms. Arakaki engaged in "unlawful"

conduct and that the Inspector General investigator perpetrated a "cover up" of her behavior.

PL 's Resp. to Order at 4, 6. Because Ms. Arakaki had "abandoned her duties as [Contracting

Officer], Mr. Nussbaum requested that the GAO step in and review her actions. Id. at 6. Ms.

Vong replied on August 27, acknowledging the emails and informing him that she had forwarded

the information on to GAO's fraud division for further investigation. Id at 4. Thus, none of the

information Mr. Nussbaum produced in response to the court's order had any relation to his

pursuit of his claims between March 2010 and March 2019. In short, there is no evidence in the

record indicating Mr. Nussbaum's actions to further his claims during this nine-year period.

STANDARDS FOR DECISION

A. Rule I2(b)(l) -Lack of Subject-Matter Jurisdiction

The Tucker Act provides this comt with jurisdiction over "any claim against the United

States founded either upon the Constitution, or any Act of Congress or any regulation of an

executive department, or upon any express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 149l(a)(l). The

Tucker Act does not, however, provide substantive rights. See United States v. Testan, 424 U.S.

392, 398 (1976). To establish this court's jurisdiction under the Tucker Act, Mr. Nussbaum

"must identify a substantive right for money damages against the United States separate from the

Tucker Act." Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004). An express or

implied contract creates such a right, 28 U.S.C. § 149l(a)(l), and the CDA confers jurisdiction

on this court to hear disputes involving government contracts, 41 U.S.C § 7104(b).

A claim in this court is "barred unless the petition thereon is filed within six years after

such claim first accrues." 28 U.S.C. § 2501. The six-year statute of limitations specified in

Section 2501 is jurisdictional and is thus not susceptible to equitable tolling or any of the other

doctrines that would excuse an untimely claim. See John R. Sand & Gravel Co. v. United States,

552 U.S. 130, 133-36 (2008). "Comts created by statute can have no jurisdiction but such as the

statute confers." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,818 (1988) (quoting

Sheldon v. Sill, 49 U.S. (8 How.) 441,449 (1850)).

Claims that fall under the CDA, however, must proceed through a mandatory

administrative process. 41 U.S.C. § 7103(a); see also Ace Constructors, Inc. v. United States, 70

Fed. Cl. 253, 265 (2006), ajf'd, 499 F.3d 1357 (Fed. Cir. 2007). A contractor must first submit a

written claim within six years of accrual to the contracting officer, who has 60 days in which to

respond or, if no response is received, the claim is deemed denied by operation of law. 41

U.S.C. § 7103(f)(5). Upon a decision or a denial by operation of law, the contractor has one year

in which to bring an action in this court. 41 U.S.C. § 7104(b). It is an open question whether,

unlike 28 U.S.C. § 2501, the one-year statute of limitations provided by the CDA is non-

jurisdictional and subject to equitable tolling. See Guardian Angels Med. Serv. Dogs, Inc. v.

United States, 809 FJd 1244, 1252-53 (Fed. Cir. 2016) (declining to decide whether the one-

year filing period is jurisdictional). Assuming it is non-jurisdictional, equitable tolling requires

the litigant to establish two elements: "(I) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way and prevented timely filing." Menominee

Indian Tribe of Wis. v. United States, _U.S._,_, 136 S. Ct. 750, 755 (2016) (quoting

Hollandv. Florida, 560 U.S. 631,649 (2010)).

5

Mr. Nussbaum, as plaintiff, must establish jurisdiction by a preponderance of the

evidence. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011)

(citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). 5 When

ruling on the government's motion to dismiss for lack of jurisdiction, the court must "accept as

true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences

in favor of the plaintiff." Id (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)).

Yet, "[i]f a court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter

of law." Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Exparte Mccardle, 74 U.S. (7

Wall.) 506,514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); RCFC

12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.").

B. Rule 12(b)(6) - Failure to State a Claim

A complaint will survive a motion to dismiss under RCFC 12(b)(6) ifit "contain[s] sufficient

factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft

v. Iqbal, 556 U.S. 662,678 (2009) (quoting Bell At/. Corp. v. Twombly, 550 U.S. 544,570

(2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Id. The factual matters alleged "must be enough to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful in

fact)." Twombly, 550 U.S. at 555-56 (citations omitted).

When reviewing the complaint, "the court must accept as true the complaint's undisputed

factual allegations and should construe them in a light most favorable to the plaintiff."

Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Papasan v. Allain, 478

U.S. 265,283 (1986)) (additional citation omitted). Conclusory statements of law and fact,

however, "are not entitled to the assumption of truth" and "must be supported by factual

allegations." Iqbal, 556 U.S. at 679. "'[N]aked assertion[s]' devoid of 'further factual

enhancement"' are insufficient to state a claim." Id. at 678 (quoting Twombly, 550 U.S. at 557);

accord Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998) ("Conclus01y allegations

oflaw and unwairnnted inferences of fact do not suffice to support a claim.").

ANALYSIS

Mr. Nussbaum asserts that the statute of limitations should be equitably tolled because

the contracting officer, Contigny Arakaki, "abandoned her duties" by refusing to hear or reply to

his claims, requiring him "to find someone else to perform them." Pl.'s Opp'n. at 10. He

contends that the GAO's Oversight Department is responsible for appointing someone to

perform the contracting officer's duties and he is awaiting "commitment from GAO on that

issue." Id. He alleges that Ms. Arakaki engaged in "prosecutable acts" designed to deny him

5

A court may "grant the prose litigant leeway on procedural matters, such as pleading

requirements." McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing

Hughes v. Rowe, 449 U.S. 5, 9 (1980) ("An umepresented litigant should not be punished for his

failure to recognize subtle factual or legal deficiencies in his claims.")). But this leniency cannot

extend to lessening jurisdictional requirements. See Kelley v. Secreta,y, United States Dep 't of

Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) ("[A] court may not ... take a liberal view of ...

jurisdictional requirement[s] and set a different rule for pro se litigants only.").

6

"due process" and that these actions made it "impossible to comply" with the statute of

limitations. Id.

The government relies on Section 2501, arguing that this court lacks jurisdiction to

consider Mr. Nussbaum' s complaint because it is untimely and, because Section 2501 is

jurisdictional, the six-year statute oflimitations is not susceptible to equitable tolling. Def.'s

Reply at 3. Alternatively, the government asserts that to the extent Mr. Nussbaum's claims are

considered pass-through claims, and thus governed by the CDA, Mr. Nussbaum could only toll

the statute of limitations by showing that he "timely sought reconsideration of the contracting

officer's final decision." Def. 's Reply at 4. Because he did not file a motion for reconsideration,

the government asserts, Mr. Nussbaum's equitable estoppel arguments should also be rejected

under the CDA. Id.

A. Section 2501

A claim is barred in this court under Section 2501 "unless the petition thereon is filed

within six years after such claim first accrues." 28 U.S.C. § 2501. A claim 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, entitling the claimant to demand

payment and sue here for his money."' Martinez v. United States, 333 F.3d 1295, 1303 (Fed.

Cir. 2003) (en bane) (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. CL 1966))

(other citations omitted).

The Supreme Comt recognizes a distinction between jurisdictional and non-jurisdictional

statutes of limitations. See John R. Sand & Gravel Co., 552 U.S. at 133-34. Non-jurisdictional

statutes of limitations permit courts to toll the time period in light of special equitable

considerations, but jurisdictional statutes of limitations are more absolute. Designed to foster

broad, systemic objectives of judicial efficiency, jurisdictional statutes forbid courts from

considering equitable doctrines that might otherwise prevent the limitations period from running.

Id. Section 2501 is a jurisdictional statute and is thus "not susceptible to equitable tolling." Id. at

136.

If Mr. Nussbaum's claims are governed by Section 2501, then, as the government asse1ts,

he could not bring his claim because the six-year period has run, and equitable tolling is not

available to him. See Def.'s Mot. at 2-3. At the latest, Mr. Nussbaum's claims accrued around

the time he received the denial from Mr. Wenkman in March 2010, meaning that he would have

had to bring his claim in March 2016 for it to fall within the limitations period. Because no

equitable tolling is available, the statute of limitations would categorically prevent this court

from hearing Mr. Nussbaum's claims under Section 2501. But Section 2501 is not the pertinent

statute of limitations here. Instead, this case is governed by the CD A.

B. The Contract Disputes Act

The CDA governs disputes involving "any express or implied contract ... made by an

executive agency for ... the procurement of construction." 41 U.S.C. § 7102(a). Mr. Nussbaum

maintains that he had a contractual management through Cal Inc. with the Bureau of Prisons to

provide construction services, and therefore his claim falls within the ambit of the CD A.

7

The CDA establishes a mandatory administrative process that requires a contractor to

submit a "claim" to the contracting officer before the contractor may file suit on that claim in this

court. 41 U.S.C. § 7103(a)(l). Compliance with the dispute resolution procedures set forth in

the CDA is a prerequisite to the court's exercise of jurisdiction over claims covered by that Act.

See Englandv. The Swanson Group, Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004) (noting that

'jurisdiction over an appeal of a contracting officer's decision is lacking unless" the

administrative procedures are followed). The claim must be in writing and, if it exceeds

$100,000, must certify that: (1) it is made in good faith; (2) the supporting data is accurate and

complete; (3) the amount requested reflects the amount for which the contractor believes the

government is liable; and (4) the certifier is authorized to certify the claim on behalf of the

contractor. 41 U.S.C. § 7103(b)(l). After the claim is submitted, the contracting officer is

required-within sixty days-to either issue a decision or notify the contractor of the time within

which a decision will be issued. 41 U.S.C. § 7103(£)(2).

Shorter than the general six-year statute of limitations applicable to claims under Section

2501, the limitations period set forth in the CDA requires that suit be initiated in this court within

one year of the contractor's receipt of the contracting officer's decision. 41 U.S.C. § 7104(b)(3).

A contracting officer's failure to issue a decision within sixty days is "deemed to be a decision ..

. denying the claim." 41 U.S.C. § 7103(£)(5). Thus, if a contractor receives no response from

the contracting officer within sixty days of filing his complaint, the complaint is deemed denied

and the contractor must file suit in this court within one year. See Baistar Mech., Inc. v. United

States, 128 Fed. Cl. 504,515 (2016) ("When a contracting officer fails to issue a final decision

within the allotted time under the CDA, the contractor's claim is 'deemed' denied and the

contractor is permitted to seek relief in this court.").

Here, the government does not appear to dispute that Mr. Nussbaum's claim submitted to

the contracting officer satisfied the administrative procedural requirements of the CDA. As part

of the settlement of state court litigation with Cal Inc., Cal Inc. agreed to sponsor Mr.

Nussbaum's claim to the contracting officer. See supra, at 4; see also Hr' g Tr. 6: 5 to 7: 11. In

pursuing dismissal on alternative grounds, the government focuses on the one-year statute of

limitations for filing in this court. Even assuming Mr. Nussbaum's claim satisfies the procedural

requirements, it is far outside the one-year statute of limitations. Mr. Nussbaum received the

letter from Mr. Wenkman denying his claim in March 2010, and he never received any response

from the contracting officer, Contigny Arakaki. Even if Mr. Wenkman's response does not

constitute a denial given that he was not actually the contracting officer, the lack of response

from Ms. Arakaki within sixty days is itself deemed a denial under the CDA. In any event, the

one-year statute of limitations had run, by any measure, before Mr. Nussbaum filed his claim in

this court approximately nine years later. Mr. Nussbaum's claim, therefore, falls outside the

CDA' s statute of limitations unless he can establish that it should be equitably tolled.

C. Equitable Tolling

The CDA contains two separate filing deadlines. First, Section 7103 requires that a

contractor submit his claim to the contracting officer within six years after accrual of the claim.

41 U.S.C. § 7103(a)(4)(A). The government does not appear to dispute that Mr. Nussbaum met

this deadline. Second, Section 7104 establishes a one-year period for suing in this comt based on

a decision or deemed denial by the contracting officer. 41 U.S.C. § 7104(b)(3). The one-year

deadline is the limitation at issue here. The Federal Circuit has explicitly held that the six-year

limit in Section 7103 is not jurisdictional. See Sikorsky Aircraft Corp. v. United States, 773 F.3d

8

1315, 1322 (Fed. Cir. 2014) (holding that Section 7103 is not jurisdictional because it "does not

have any special characteristic that would warrant making an exception to the general rule that

filing deadlines are not jurisdictional"). But the Federal Circuit has declined to decide whether

the one-year filing deadline in Section 7104 is jurisdictional, while simultaneously emphasizing

that the Supreme Court "in recent years has repeatedly emphasized that 'filing deadlines

ordinarily are not jurisdictional."' Guardian Angels, 809 F.3d at 1252-53 (quoting Sebelius v.

Auburn Reg'/ Med Ctr., 568 U.S. 145, 154 (2013)). Indeed, the Supreme Court has held that

"quintessential claim-processing rules" should not be characterized as jurisdictional unless "there

is any 'clear' indication that Congress wanted the rule to be 'jurisdictional."' Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 435-36 (2011) (quoting Arbaugh v. Y&H Corp., 546 U.S.

500, 515-16 (2006)). Especially given that there are no special characteristics in Section 7103

indicating that it should be jurisdictional, such factors do not appear to be present in the context

of Section 7104 either. It is unnecessary, however, for the comt to decide whether Section 7104

is jurisdictional because-even assuming it is not-Mr. Nussbaum cannot satisfy the standard

for equitable tolling.

Equitable tolling is a "nairnw doctrine." Martinez, 333 F.3d at 1318. It requires the

litigant to establish "(]) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing." Menominee Indian

Tribe, 136 S. Ct. at 755. Both prongs of this test must be met. Id. at 756 ("Equitable tolling's

two components [are] 'elements,' not merely factors of indeterminate or commensurable

weight.") (citation omitted). The second prong is met "only where the circumstances that caused

a litigant's delay are both extraordinary and beyond its control." Id. at 756 (emphasis in

original). Notably, the Supreme Court regards this high bar for equitable tolling, which is

applied in the habeas context, as a minimum test and suggests that when applied in a civil

proceeding the standai·d may be even higher. Id. at n.2 (noting that the equitable tolling test

derives from a habeas case and does not necessarily apply outside of it, but declining "to decide

whether an even stricter test might apply to a nonhabeas case"). Moreover, the Supreme Court

has held that "mere excusable neglect is not enough to establish a basis for equitable tolling;

there must be a compelling justification for delay, such as where the complainant has been

induced or tricked by his adversary's misconduct into allowing the filing deadline to pass."

Martinez, 333 F.3d at 1318 (quoting Irwin v. Dep 't. of Veterans Affairs, 498 U.S. 89, 96 (1990)).

Mr. Nussbaum fails to meet either prong of the test. Regarding the first prong, he has

produced no evidence showing that he made efforts to pursue his case during the nine-year

period from when he received the denial from Mr. Wenlanan until he filed suit in this court. The

only documentation Mr. Nussbaum produced when the court inquired about his activities during

this period was email correspondence with GAO, all of which occurred after he had commenced

this litigation in March 2019. Given that Mr. Nussbaum was unable to produce any evidence

about his actions regarding this matter during that time, the court has no basis for concluding that

he pursued his claims diligently.

Mr. Nussbaum also fails to satisfy the second prong. He argues that the period should be

tolled because Ms. Arakaki's "prosecutable" actions-by which he presumably refers to her

having "abandoned her duties"-made it "impossible to comply with" the statute of limitations,

rising to the kind of"compelling" justification for the delay. Pl.'s Opp'n at 10. Yet, even if Ms.

Arakaki's inaction respecting his complaint constitutes misconduct, that is insufficient to satisfy

the kind of compelling justification required because the statute itself contemplates that

contracting officers will sometimes fail to respond to claims. To that end, it authorizes plaintiffs

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to pursue their claims in this court after sixty days without a decision from the contracting

officer, meaning that Mr. Nussbaum's failure to file suit within the one-year time period was

neither extraordinary nor outside his control. It was not extraordinary because the very text of

the statute anticipates that contracting officers will occasionally ignore claims, and it was not

outside his control because the lack of response was deemed a denial that authorized him to bring

his claim as soon as sixty days had passed. Given that the statute explicitly makes allowance for

such a scenario, a contracting officer's mere failure to respond to a claim cannot establish the

kind of misrepresentation, inducement, or trickery that would create a compelling justification

for tolling.

While the court is not without sympathy for Mr. Nussbaum, it is bound by the

jurisdictional limitations prescribed by Congress. Statutes of limitations are designed to ensure

the prompt and just adjudication of disputes and to balance competing interests. See John R.

Sand & Gravel Co., 552 U.S. at 133. And although the application ofa statute of limitations

may seem unfair on an individual level, these laws "seek ... to achieve [a] broader system [of]

related goal [s], such as facilitating the administration of claims, limiting the scope of a

governmental waiver of sovereign immunity, or promoting judicial efficiency." Id. (citations

omitted).

CONCLUSION

For the reasons stated, the court finds that Mr. Nussbaum's claim is untimely and cannot

be equitably tolled. The government's motion to dismiss for lack of subject-matter jurisdiction is

GRANTED in part and DENIED in part. Mr. Nussbaum's complaint is dismissed, but for failure

to state a claim upon which relief can be granted and not for a lack of subject-matter jurisdiction.

The Clerk shall enter judgment accordingly.

No costs.

It is so ORDERED.

Charles F. Letlow

Senior Judge

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