Floorpro, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________
FLOORPRO, INC.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2011-5116
__________________________
Appeals from the United States Court of Federal
Claims in case no. 09-CV-651, Senior Judge Loren A.
Smith.
______________________
Decided: May 31, 2012
_______________________
JAMES S. D ELSORDO , Argus Legal, LLC, of Manassas,
Virginia, argued for plaintiff-appellee.
D OMENIQUE K IRCHNER , Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellant. With her on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. D AVIDSON ,
Director, and BRYANT G. SNEE, Deputy Director. Of
counsel on the brief was PAMELA J. N ESTELL, Senior Trial
Attorney, Naval Litigation Office, Office of the General

-- 1 of 9 --

FLOORPRO INC v. US 2
Counsel, United States Department of the Navy, of Wash-
ington, DC.
__________________________
Before PROST, M AYER, and WALLACH , Circuit Judges.
M AYER, Circuit Judge.
The United States appeals a judgment of the United
States Court of Federal Claims awarding FloorPro, Inc.
(“FloorPro”) damages for breach of a government contract.
See FloorPro, Inc. v. United States, 98 Fed. Cl. 144 (Fed.
Cl. 2011) (“Federal Claims Decision II”); FloorPro, Inc. v.
United States, 94 Fed. Cl. 775 (Fed. Cl. 2010) (“Federal
Claims Decision I”). Because FloorPro’s suit was filed
outside of the six-year limitations period set out in 28
U.S.C. § 2501, its claim is time-barred. We therefore
vacate and remand with instructions to dismiss for lack of
jurisdiction.
BACKGROUND
On February 6, 2002, the United States Navy
awarded Contract No. N62467-02-M-2013 to G.M. & W.
Construction Corporation (“GM&W”) for the installation
of floor coating in several warehouse bays at a military
base. GM&W subsequently entered into a subcontracting
agreement with FloorPro, pursuant to which FloorPro
agreed to perform the floor-coating work for a sum of
$37,500.00. FloorPro completed the work on February 27,
2002, and promptly submitted an invoice to GM&W.
On March 8, 2002, the Navy informed GM&W that
the floor-coating work had been completed satisfactorily.
On April 17, 2002, FloorPro contacted the Navy’s con-
tracting officer, stating that it had not been paid by
GM&W. The contracting officer then contacted GM&W to
inquire why FloorPro had not been paid for the floor-

-- 2 of 9 --

FLOORPRO INC v. US 3
coating work. GM&W informed the contracting officer
that there were several claims pending against it, and
that it was not sure whether any funds that the Navy
directly deposited into its bank account would be avail-
able to pay FloorPro. Accordingly, on April 22, 2002, the
Navy and GM&W entered into a contract modification
(“Modification P00001”), which provided that the Defense
Finance and Accounting Service (“DFAS”) would not pay
GM&W directly, as required by the original contract, but
would instead pay for the floor-coating work by issuing a
hard-copy, two-party check payable to GM&W and Floor-
Pro. Modification P00001 further provided that the Navy
would mail the check directly to FloorPro.
Notwithstanding Modification P00001, on July 17,
2002, the DFAS paid GM&W directly by an electronic
fund transfer to its bank account. On July 18, 2002, the
contracting officer informed FloorPro that DFAS had
“ignored” Modification P00001 and “did not issue the two-
party check as [Modification P00001] had directed.”
FloorPro responded by sending a letter, dated July 23,
2002, asking the contracting officer “[w]hat exactly is
being done by [the Navy] to process a payment to us for
our work?” On August 9, 2002, Captain B.M. Scott, a
Navy acting commander, sent FloorPro a letter confirm-
ing that the government had paid GM&W in full on the
contract. Scott asserted that “[a]s the Government does
not possess privity of contract with FloorPro, Inc., or any
other subcontractor,” payment to GM&W had “fulfill[ed]
the extent of the Government’s obligations” under the
contract. Scott informed FloorPro that its only recourse
was to seek payment “from GM&W through the civil court
system.” Scott stated, moreover, that GM&W’s failure to
pay FloorPro “ha[d] been referred to the Naval Criminal
Investigative Service for investigation.”

-- 3 of 9 --

FLOORPRO INC v. US 4
On December 5, 2002, FloorPro submitted a claim to
the Navy’s contracting officer, asserting that the Navy
had failed to pay it for the floor-coating work it had per-
formed. Two weeks later, the contracting officer wrote
FloorPro a letter stating that she could not issue a final
decision on its claim because the government did “not
have a contract with FloorPro.”
On March 27, 2003, FloorPro filed an action against
the Navy at the Armed Services Board of Contract Ap-
peals (“ASBCA”). Relying upon this court’s decision in
D & H Distributing Co. v. United States, 102 F.3d 542,
546-48 (Fed. Cir. 1996), the ASBCA determined that it
had jurisdiction over FloorPro’s claim because FloorPro
was a third-party beneficiary of the contract between the
Navy and GM&W. See In re FloorPro, Inc., No. 54143,
2007 ASBCA LEXIS 38, at *31-36 (June 27, 2007). It
determined, moreover, that FloorPro was entitled to
damages of $37,500, plus interest, for the government’s
breach of Modification P00001. Id. at *36.
On appeal, this court reversed. See Winter v. Floor-
Pro, Inc., 570 F.3d 1367 (Fed. Cir. 2009). We held that
under the Contract Disputes Act of 1978 (“CDA”), 41
U.S.C. §§ 7101-7109, the ASBCA has no jurisdiction over
a claim brought by a subcontractor who is a third-party
beneficiary of a contract between the government and the
prime contractor. Winter, 570 F.3d at 1371-73. We
explained that the CDA applies only to “contractors,” and
parties—such as subcontractors—who are not in privity of
contract with the government generally have no right to
“avail themselves of the CDA’s appeal provisions.” Id. at
1370-71 (citations and internal quotation marks omitted).
We observed, however, that the grant of jurisdiction to the
Court of Federal Claims under the Tucker Act, 28
U.S.C. § 1491(a)(1), “is broader” than the jurisdiction of
the ASBCA under the CDA, and can potentially extend to

-- 4 of 9 --

FLOORPRO INC v. US 5
an intended third-party beneficiary of a government
contract. Winter, 570 F.3d at 1372; see D & H Distrib.,
102 F.3d at 546-48 (concluding that a third-party benefi-
ciary of a government contract had the right to enforce a
contract provision in the Court of Federal Claims).
On October 2, 2009, FloorPro filed suit against the
government in the Court of Federal Claims. The govern-
ment moved for summary judgment, arguing that Floor-
Pro’s claim was time-barred because it was filed more
than six years after it first accrued. In response, FloorPro
argued that its claim did not accrue until October 5, 2004,
“at which time the Navy filed a brief at the [ASBCA]
contending that FloorPro had no enforceable rights under
[Modification P00001].” Federal Claims Decision I, 94
Fed. Cl. at 778. FloorPro asserted “that until October 5,
2004, the Government had not refused to enforce the
Modification, and not until the Government’s brief was
filed did the Navy assert that the Modification would not
be honored.” Id.
The Court of Federal Claims agreed with FloorPro
that “the facts and the law” supported an October 5, 2004
accrual date for its claim. Id. The court determined,
however, that it should not resolve the timeliness ques-
tion “solely base[d] . . . on which date [was] proper to start
the running of the statute of limitations.” Id. Because
FloorPro “did not sleep on its rights,” but instead had
diligently pursued its claim by filing suit at the ASBCA,
the court concluded that barring FloorPro’s claim as
untimely would “lead to an unjust result.” Id. at 779.
The court determined, moreover, that FloorPro was an
intended third-party beneficiary of Modification P00001
and that it was entitled to damages of $37,500 for the
government’s breach of that provision. See Federal
Claims Decision II, 98 Fed. Cl. at 147-48. The govern-
ment then filed a timely appeal with this court.

-- 5 of 9 --

FLOORPRO INC v. US 6
D ISCUSSION
“Whether the Court of Federal Claims possesses ju-
risdiction over a claim is a question of law subject to de
novo review.” Navajo Nation v. United States, 631 F.3d
1268, 1272 (Fed. Cir. 2011). Every civil action against the
United States is barred unless the complaint is filed
within six years of the time a right of action first accrues.
28 U.S.C. § 2501. This six-year limitations period is
jurisdictional and may not be waived or tolled. John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 136-39
(2008); see Young v. United States, 529 F.3d 1380, 1384
(Fed. Cir. 2008) (“[T]he statute of limitations applicable to
Tucker Act claims . . . is jurisdictional and not susceptible
to equitable tolling.”); Martinez v. United States, 333 F.3d
1295, 1316 (Fed. Cir. 2003) (en banc) (“It is well estab-
lished that statutes of limitations for causes of action
against the United States, being conditions on the waiver
of sovereign immunity, are jurisdictional in nature.”);
Hopland Band of Pomo Indians v. United States, 855 F.2d
1573, 1576-77 (Fed. Cir. 1988) (“The 6-year statute of
limitations on actions against the United States is a
jurisdictional requirement attached by Congress as a
condition of the government’s waiver of sovereign immu-
nity and, as such, must be strictly construed.”).
Because FloorPro’s claim was filed more than six
years after it accrued, the Court of Federal Claims was
without jurisdiction to consider it. In general, a cause of
action against the government accrues “when all the
events have occurred which fix the liability of the Gov-
ernment and entitle the claimant to institute an action.”
Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir.
2006) (citations and internal quotation marks omitted).
The issue of “whether the pertinent events have occurred
is determined under an objective standard; a plaintiff
does not have to possess actual knowledge of all the

-- 6 of 9 --

FLOORPRO INC v. US 7
relevant facts in order for the cause of action to accrue.”
Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir.
1995).
FloorPro’s cause of action accrued when the govern-
ment breached Modification P00001 by making payment
directly to GM&W, rather than sending a two-party check
to FloorPro as the modification required. See Franconia
Assocs. v. United States, 536 U.S. 129, 141 (2002) (ex-
plaining that claims seeking damages for breach of con-
tract generally accrue at the time of the breach); Kinsey v.
United States, 852 F.2d 556, 557 (Fed. Cir. 1988) (empha-
sizing that a cause of action for breach of a government
contract generally accrues when payment is due but
wrongfully withheld). FloorPro became aware of the
breach no later than August 9, 2002, when the Navy
informed FloorPro that: (1) it had paid GM&W directly for
the floor-coating work; (2) it believed that it had fulfilled
the extent of its contract obligations; and (3) FloorPro’s
only recourse was to seek payment “from GM&W through
the civil court system.” Thus, no later than August 2002,
FloorPro knew not only that the Navy had paid GM&W
directly, but that the government believed that it had
fulfilled all of its obligations under the contract and would
not make any payment to FloorPro. At this point, Floor-
Pro had “a complete and present cause of action,” Bay
Area Laundry & Dry Cleaning Pension Trust Fund v.
Ferbar Corp., 522 U.S. 192, 201 (1997) (citations and
internal quotation marks omitted), and all events neces-
sary to fix the alleged liability of the government for the
failure to comply with Modification P00001 had occurred.
Because FloorPro did not file its complaint in the Court of
Federal Claims until October 2, 2009, more than six years
after its claim accrued, its action is time-barred.
FloorPro argues that its cause of action did not accrue
until October 5, 2004, when the government filed its brief

-- 7 of 9 --

FLOORPRO INC v. US 8
in the ASBCA proceedings. It asserts that while it “knew
that the Government had paid GM&W directly in viola-
tion of Modification P00001, the Government did not
repudiate the terms of the modification” until the gov-
ernment filed its brief with the ASBCA. We do not find
this reasoning persuasive. FloorPro knew long before the
government filed its brief in the ASBCA proceedings that
the government had “repudiate[d]” Modification P00001.
As noted above, the Navy’s August 2002 letter stated that
it had fulfilled all of its obligations under the contract by
making payment directly to GM&W and that FloorPro’s
only recourse was to seek payment “from GM&W through
the civil court system.” This letter was an unequivocal
refusal to pay FloorPro under the terms of Modification
P00001, which required the Navy to issue a hard-copy,
two-party check payable to both GM&W and FloorPro and
to send the check to FloorPro. Indeed, the complaint
FloorPro filed with the ASBCA in April 2003 specifically
alleged that the Navy had breached Modification P00001
by making payment directly to GM&W. We reject, there-
fore, FloorPro’s assertion that it was unaware that the
Navy had repudiated Modification P00001 until the
government filed its October 5, 2004 brief with the
ASBCA.
We likewise reject FloorPro’s contention that equita-
ble tolling can be applied to defer the running of the
limitations period. FloorPro argues that its claim should
be deemed timely because it diligently pursued its claim
and acted reasonably in initially filing suit at the ASBCA,
rather than in the Court of Federal Claims. It asserts,
moreover, that nothing in the Supreme Court’s decision in
Sand & Gravel “specifically bars the application of equi-
table tolling.” We disagree. Sand & Gravel makes clear
that section 2501 sets forth an “absolute” time limit for
filing suit in the Court of Federal Claims. 552 U.S. at

-- 8 of 9 --

FLOORPRO INC v. US 9
135; see Young, 529 F.3d at 1384. Because section 2501’s
time limit is jurisdictional, the six-year limitations period
cannot be extended even in cases where such an extension
might be justified on equitable grounds.
CONCLUSION
Accordingly, the judgment of the United States Court
of Federal Claims is vacated and the case is remanded
with instructions to dismiss for lack of jurisdiction.
COSTS
No costs.
VACATED AND REMANDED

-- 9 of 9 --