Higgins v. United States , 589 F. App'x 977 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHERYL HIGGINS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2014-5025
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00922-EJD, Judge Edward J.
Damich.
______________________
Decided: October 14, 2014
______________________
CHERYL HIGGINS, of Bowie, Maryland, pro se.
DOUGLAS T. HOFFMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
______________________
2 HIGGINS v. US
Before LOURIE, PLAGER, and WALLACH, Circuit Judges.
PER CURIAM.
Cheryl Higgins (“Higgins”) appeals from the decision
of the United States Court of Federal Claims (the “Claims
Court”) dismissing two of her claims as beyond the six-
year statute of limitations and granting summary judg-
ment in favor of the government on the third and remain-
ing claim. See Higgins v. United States, No. 12-922C
(Fed. Cl. Oct. 9, 2013) (“Opinion”). Because the Claims
Court did not err in holding that it lacked jurisdiction
over Higgins’ first two claims and in granting summary
judgment on the third claim, we affirm.
BACKGROUND
The United States Department of Labor (“DOL”)
awarded a grant in September 1999 to Devereaux Corpo-
ration (“Devereaux”), of which Higgins was the executive
director. Id. at 2. The grant was for about $3 million, to
be paid over a period of three years. Id. Months later, a
DOL grant officer submitted a proposal to terminate the
grant for “material failure to comply with the terms and
conditions of a grant award” under 29 C.F.R. § 95.61(a)(1).
Id. After considering Devereaux’s response, DOL issued a
Final Determination to terminate the grant. Id.Devereaux submitted to the DOL Office of Adminis-
trative Law Judges (“ALJ Office”) a request for a hearing
to review the Final Determination. Id. at 3. The ALJ
Office issued a prehearing order requesting information
from both parties. Id. Devereaux failed to comply, de-
spite a show cause order, and the ALJ Office entered a
default judgment in May 2001. Id.After negotiations with Higgins, DOL prepared a
Modification of the grant award to effectuate the termina-
tion by reducing the award amount and changing the
expiration date to September 2000. Id. On October 24,
2001, Higgins and DOL signed the Modification, which
HIGGINS v. US 3
was effective at execution, and the remainder of the
negotiated amount was paid to Devereaux. Appellee’s
App. 28, 38, 42. In May 2002, DOL officially closed the
grant based on that settlement and payment. Id. at 42.
DOL subsequently sent closeout documents to
Devereaux, but they were returned in the mail as unde-
liverable. Opinion at 3. After being notified that the
corporation was defunct, DOL executed a unilateral
closeout on May 12, 2004, adopting the terms of the
Modification. DOL then sent a preliminary settlement
notice to Higgins on May 26, 2004 (“Settlement Notice”).
Id. The Settlement Notice contained a paragraph that
described certain situations in which further payment
adjustments might be made for an amended settlement,
including “[u]nresolved disputes or claims identified on
the Grantee’s Release.” Id.In November 2005, Higgins sent a letter requesting
over $1.5 million from the grant for reimbursement of
various outstanding claims incurred by Devereaux.
Opinion at 3. In February 2006, DOL responded with a
letter stating that the grant had been closed out and no
further funds were owed to Devereaux. Appellee’s App.
36–38. That letter noted the various documents and
events concerning the grant termination and closure,
including the Final Determination, the ALJ Office’s
default judgment, and the Modification signed by both
parties in October 2001. Moreover, the letter elaborated
that the legislative authorization for the grant program
had lapsed and that no additional funding was available.
DOL and Higgins later had an in-person meeting and
further written correspondence, in which DOL reiterated
that the grant had been terminated, the Modification
signed by Higgins reflected a negotiated settlement, the
grant had been officially closed based on that settlement
and payment of agreed costs, and no additional funds
were available. Opinion at 3; Appellee’s App. 42.
4 HIGGINS v. US
In October 2008, in response to another inquiry from
Higgins, DOL sent a letter stating that the grant was
terminated in accordance with 29 C.F.R. § 95.61(a)(2).
Opinion at 3.
On December 28, 2012, Higgins filed suit against the
government in the Claims Court alleging a breach of
contract or, alternatively, entitlement to an amended
settlement according to the Settlement Notice or a final
settlement under § 95.61(a)(2). The court found that the
breach of contract claim accrued on May 12, 2004, when
DOL unilaterally closed out the grant. Id. at 4. Similar-
ly, the court found that the amended-settlement claim
accrued on May 26, 2004, when DOL sent the Settlement
Notice. Id. at 6. The court also found that the termina-
tion occurred under § 95.61(a)(1) instead of § 95.61(a)(2).
Id. at 5–6. The court thus dismissed the breach of con-
tract claim and the amended-settlement claim as beyond
the six-year statute of limitations, and granted summary
judgment in favor of the government on the final-
settlement claim as arising under an inapplicable statuto-
ry provision. Id. at 7.
Higgins appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review the Claims Court’s dismissal for lack of ju-
risdiction de novo. FloorPro, Inc. v. United States, 680
F.3d 1377, 1380 (Fed. Cir. 2012). We also review the
grant of summary judgment de novo. Holland v. United
States, 621 F.3d 1366, 1374 (Fed. Cir. 2010).
I. Claims Dismissed for Lack of Jurisdiction
A claim against the government must be filed within
six years after the claim first accrues. 28 U.S.C. § 2501;
Martinez v. United States, 333 F.3d 1295, 1304 (Fed. Cir.
2003) (en banc). A claim accrues for purposes of the
statute of limitations “when all the events have occurred
HIGGINS v. US 5
which fix the liability of the Government and entitle the
claimant to institute an action.” FloorPro, 680 F.3d at
1381 (citation omitted). “The question 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 relevant facts in order for the
cause of action to accrue.” Fallini v. United States, 56
F.3d 1378, 1380 (Fed. Cir. 1995). The six-year statute of
limitations is “jurisdictional” and thus is not subject to
equitable tolling. John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 134–39 (2008).
A. The Breach of Contract Claim
Higgins argues that her breach of contract claim did
not accrue until 2012, when “a certain federal official”
revealed to her that the grant termination “was not a true
termination,” or until 2013, when she learned about the
undelivered closeout documents. Appellant’s Br. 4–5.
She also asserts that equitable tolling should apply be-
cause she has pursued several remedies in good faith.
The government responds that the events in 2012 and
2013 are irrelevant to a determination whether Higgins
had filed her complaint within the statute of limitations
period. The government asserts that “all events required
to assert a claim for unpaid, but due and owing grant
money” had occurred when the Modification was signed in
2001. Appellee’s Br. 9. The government contends that
even if Higgins’ reimbursement request in November
2005 were considered an event necessary to assert the
claim, the February 2006 letter rejecting the request
would be the latest event to start the clock, which still
puts the claim beyond the six-year period. The govern-
ment argues that Higgins’ pursuit of other remedies does
not affect when the events necessary to assert the claim
all occurred.
We agree with the government that the Claims Court
lacked jurisdiction over the breach of contract claim
6 HIGGINS v. US
because the claim first accrued more than six years before
Higgins filed her complaint.
The breach of contract claim arises from the grant
award from DOL to Devereaux. The Claims Court found
that May 12, 2004, the date when DOL executed the
unilateral closeout, was the “latest date upon which a
contractual claim could conceivably be seen to arise.”
Opinion at 4. Higgins fails to identify a date subsequent
to that date that would have given rise to a breach of
contract claim, considering the contract in question had
been terminated, amended to expire, officially closed, and
then finally processed for closeout. Because the six-year
statute of limitations is jurisdictional, equitable tolling
exceptions do not apply. We therefore hold that the
Claims Court did not err in finding that May 12, 2004,
was objectively the latest possible date that the breach of
contract claim first accrued.
B. The Amended-Settlement Claim
Higgins argues that because a grantee’s release was
never executed, she was unable to formally communicate
the disputed claim. She asserts that she thus is entitled
to an amended settlement. The government responds
that regardless whether a grantee’s release was executed,
the amended-settlement claim accrued on May 26, 2004,
because the claim arose from the Settlement Notice.
We agree with the government that the Claims Court
also lacked jurisdiction over the amended-settlement
claim because that claim first accrued more than six years
before Higgins filed her complaint.
The amended-settlement claim stems from the Set-
tlement Notice dated May 26, 2004. The only contingency
that Higgins claims to apply in her case is for
“[u]nresolved disputes or claims identified on the Grant-
ee’s Release.” Appellant’s Br. 9–10; Opinion at 6. While
Higgins repeatedly insists that every grantee is entitled
HIGGINS v. US 7
to a release, she has provided no statutory or regulatory
basis for that entitlement. Regardless whether a release
would have been procedurally proper for a closeout,
Higgins was on notice of that contingency through the
Settlement Notice and she knew that she did not possess
a grantee’s release. We therefore hold that the Claims
Court did not err in finding that the amended-settlement
claim first accrued on May 26, 2004.
For the Claims Court to have jurisdiction, Higgins’
claims must have first accrued by December 28, 2006: six
years before she filed her complaint. Martinez, 333 F.3d
at 1304. To challenge the grant termination or the avail-
ability of an amended settlement, Higgins should have
filed suit before the statute of limitations expired. Be-
cause we agree with the Claims Court’s findings that the
clock began running no later than May 2004 for both the
breach of contract and amended-settlement claims, we
hold that the Claims Court did not err in dismissing those
claims for lack of jurisdiction.
II. The Summary Judgment
“The court shall grant summary judgment if the mo-
vant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” RCFC 56(a). In determining whether
there are genuine issues of material fact, “[t]he evidence
of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Higgins argues that she is entitled to a final settle-
ment because DOL converted the unilateral termination
under § 95.61(a)(1) to a mutual termination under
§ 95.61(a)(2), as evidenced by the October 2008 letter.
The government responds that the Claims Court explicitly
considered the October 2008 letter when finding no genu-
ine issue of material fact because the letter did not change
the original basis for the termination. The government
8 HIGGINS v. US
also argues that the Claims Court found that both the
Final Determination and the ALJ Office’s default judg-
ment specifically referenced § 95.61(a)(1).
We agree with the government that the October 2008
letter did not change the original basis for the termina-
tion of the grant. The documents contemporaneous with
the termination refer specifically to § 95.61(a)(1). The
October 2008 letter was sent more than seven years after
the grant was terminated. It does not state that DOL
converted the termination, much less imply that a final
settlement was to follow. While the two letters that
Higgins submitted in support of such an interpretation do
in fact reference conversations with DOL about changing
the basis for the termination to “for convenience” instead
of “from default” (i.e., under § 95.61(a)(2) instead of
§ 95.61(a)(1)), neither of those letters refers to her claim
for a final settlement. See Reply App. A. Instead, she
stated that a DOL letter reflecting the change “will great-
ly assist [her] in responding to future RFP’s.” Id. The
justifiable inference is, at best, that the October 2008
letter nominally changed the termination to one under
§ 95.61(a)(2) such that Higgins could more easily submit
future grant proposals. Even believing Higgins’ evidence,
that letter does not change the original basis for the grant
termination, and Higgins thus is not entitled to a final
settlement. We therefore agree with the Claims Court’s
holding that the government was entitled to summary
judgment on the final-settlement claim.
CONCLUSION
We have considered Higgins’ remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Claims Court is affirmed.
AFFIRMED