         In the United States Court of Federal Claims
                                      No. 14-497C
                                 (E-Filed: May 3, 2017)

                                         )
JOSE MENDEZ,                             )
                                         )
                    Plaintiff,           )
                                              Confidential Informant; Statute of
                                         )
                                              Limitations; 28 U.S.C. §2501 (2012);
v.                                       )
                                              Subject-Matter Jurisdiction; RCFC
                                         )
                                              12(h)(3).
THE UNITED STATES,                       )
                                         )
                    Defendant.           )
                                         )

Kenneth Foard McCallion, New York, N.Y., for plaintiff.

Alexander Orlando Canizares, Trial Attorney, with whom were Joyce R. Branda, Acting
Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Bryant G. Snee,
Deputy Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for defendant.

                                        OPINION

CAMPBELL-SMITH, Judge

        Before the court is defendant’s amended motion for summary judgment on
plaintiff’s amended complaint. Def.’s Am. Mot., ECF No. 60. Defendant asserts that it
is entitled to judgment as a matter of law under Rules 12(b)(1), 12(b)(6), and 56 of the
Rules of the United States Court of Federal Claims (RCFC or Rule). Because all of
plaintiff’s claims in the amended complaint are barred by the statute of limitations,
defendant’s motion is GRANTED.

I.    Background

       Plaintiff, Jose Mendez (Mendez or Plaintiff), seeks compensation or restitution for
the information and services he provided to the government in connection with the Battle
case “in an amount to be determined at trial.”1 Pl.’s Am. Compl., ECF No. 57, ¶ 94,.
Mendez alleges that, despite his contributions as a confidential informant, the
government reneged on its alleged agreement to protect him and to use its “best efforts”
to recommend him for a monetary award. Id. at ¶¶ 19, 57, 79-83, 87-91.

       In his original complaint, Mendez asserted seven counts. Pl.’s Compl., ECF No. 1,
¶¶ 27–50. Defendant filed a motion to dismiss plaintiff’s original complaint. See ECF
No. 12. In plaintiff’s opposition to defendant’s motion to dismiss, plaintiff agreed to
dismiss, voluntarily and without prejudice, Count I (declaratory judgment) and Counts IV
through VII (unjust enrichment, promissory estoppel, equitable lien, and fraud). See Pl.’s
Mem. in Opp’n (Pl.’s Opp’n), ECF No. 18, at 2 n.1. Counts II and III, in which he
respectively alleged breach of express or implied-in-fact contract and breach of the
implied duty of good faith and fair dealing, survived defendant’s motion to dismiss. Op.
& Order on Mot. to Dismiss (Op. & Order), ECF No. 25.

        In denying defendant’s motion to dismiss, the court held that based on the record
before it, plaintiff’s claims fell within the court’s jurisdiction. The court converted
defendant’s motion to dismiss under Rule 12(b)(6) to a motion for summary judgment.
Op. & Order 20. The court explicitly reserved the right to revisit defendant’s
jurisdictional challenge under 28 U.S.C. § 2501 (2012), and deferred giving defendant’s
Rule 12(b)(6) motion further consideration until after the parties completed some
discovery. Id. 16-20. The court also set a schedule for summary judgment briefing.
Order, ECF No. 29.

       After the parties had conducted certain discovery, defendant filed a motion for
summary judgment. Def.’s Mot. for Summ. J., ECF No. 46. Once defendant filed that
motion, plaintiff moved to amend the complaint.2 Pl.’s Mot. to Am. Compl., ECF No.
52. The court granted plaintiff’s motion and set a revised briefing schedule for
dispositive motions. See ECF No. 56.

     Plaintiff’s amended complaint was materially different from his initial one.
Compare Pl.’s Compl., with Pl.’s Am. Compl, ECF No. 57. In the amended complaint,

1
      A summary of the Battle case and Mendez’s role in the related investigation was
previously provided in the court’s motion to dismiss opinion. See Op. & Order on Mot.
to Dismiss 2-3, ECF No. 25.
2
       Plaintiff filed his initial motion to amend the complaint along with a response to
defendant’s motion for summary judgment. ECF No. 49 & 50. However, the court noted
several deficiencies with plaintiff’s filings and struck them. Order, ECF No. 51. The
court suspended the schedule for dispositive briefs and directed plaintiff to refile his
motion to amend alone so that defendant could respond. Id.

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plaintiff made the claim that defendant had breached its promise to protect him. Pl.’s
Am. Compl., ¶¶ 80, 88. Plaintiff also recharacterized the alleged agreement he had with
defendant as one for “best efforts” rather than one for payment. Pl.’s Am. Compl. ¶¶ 12-
19.

       Defendant filed an amended motion for summary judgment. Def.’s Am. Mot. 1;
Def.’s Reply, ECF No. 74.3 Again defendant argued that Mendez had failed to prove the
existence of an enforceable contract. Def.’s Am. Mot. 1. Defendant reasserted its earlier
Rule 12(b)(1) and 12(b)(6) challenges to plaintiff’s action. Id. Plaintiff opposed
defendant’s motion. Pl.’s Resp., ECF No. 624; Pl.’s Surreply, ECF No. 75. Plaintiff
maintained his view that he was entitled to monetary damages for the broken promises.
Id. passim.

        Defendant subsequently filed a notice of additional authority directing the court’s
attention to the issuance of a decision in the related case, Marchena v. United States, No.
16-76C (Fed. Cl. Dec. 12, 2016).5 Both parties had relied on this case in their motion for
summary judgment briefing. Def.’s Notice, ECF No. 76. The court ordered the parties to
file supplemental briefs addressing what implications, if any, the Marchena opinion had
on their arguments. Order for Supp’l Br., ECF No. 77. In compliance, the parties filed
their respective briefs. Pl.’s Supp’l Br., ECF No. 79; Def.’s Supp’l Br., ECF No. 80.

       The matter is now ripe for a ruling.

II.    Legal Standards

       The Tucker Act vests this court with jurisdiction to hear claims against the United
States founded upon an “express or implied contract.” 28 U.S.C. § 1491(a)(1) (2012);
Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1324 (Fed. Cir. 1997). For purposes
of Tucker Act jurisdiction, an alleged contract enjoys the presumption that money


3
       Defendant filed its initial reply on September 28, 2016 and then filed an
unopposed motion to file a corrected reply to address two minor errors. Def.’s Reply on
Summ. J., ECF No. 68; Def.’s Mot. to Correct, ECF No. 70. The court granted
defendant’s motion and struck defendant’s original reply. ECF No. 72. Defendant
thereafter filed a corrected reply. Def.’s Reply, ECF No. 74.
4
      Plaintiff first filed its response without an appendix. See ECF No. 61. Plaintiff
promptly refiled his response with the inadvertently omitted appendix. Pl.’s Resp., ECF
No. 62. The court refers herein to the refiled response.
5
      This case is currently on appeal at the United States Court of Appeals for the
Federal Circuit. Marchena v. United States, No. 17-1476 (Fed. Cir).

                                              3
damages are available for a breach. Holmes v. United States, 657 F.3d 1303, 1314 (Fed.
Cir. 2011).

       A plaintiff seeking to establish jurisdiction in this court under the Tucker Act must
show that such claim accrued within six years of the date upon which the action was
filed. See 28 U.S.C. § 2501 (2012); John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 133-35 (2008) (providing that the six-year limitations period is an “absolute”
limit on the ability of the Court of Federal Claims to reach the merits of a dispute). The
six-year statute of limitations set forth in 28 U.S.C. § 2501 “is a jurisdictional
requirement attached by Congress as a condition of the government’s waiver of sovereign
immunity and, as such, must be strictly construed.” Hopland Band of Pomo Indians v.
United States, 855 F.2d 1573, 1576-77 (Fed. Cir. 1988); see also Kirby v. United States,
201 Ct. Cl. 527, 1973 WL 21341 (1973). Thus, upon finding at any time that it does not
have jurisdiction over an action, the court must dismiss it. RCFC 12(h)(3).

III.   Discussion

        Before addressing the merits of an action, the “court must satisfy itself that it has
jurisdiction to hear and decide a case.” Hardie v. United States, 367 F.3d 1288, 1290
(Fed. Cir. 2004) (quoting PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed.
Cir. 2002) (in turn citing View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962,
963 (Fed. Cir. 1997))). “Because the statute of limitations affects this court’s subject
matter jurisdiction—rather than being an affirmative defense—the requirement is strictly
construed and under no circumstances may it be waived by the court.” Martinez v.
United States, 48 Fed. Cl. 851, 857 (2001) (citing Laughlin v. United States, 22 Cl. Ct.
85, 99 (1990), aff’d, 975 F.2d 869 (Fed. Cir. 1992)); FloorPro, Inc. v. United States, 680
F.3d 1377, 1380-81 (Fed. Cir. 2012) (holding that the limitations period imposed by
section 2501 is “jurisdictional and may not be waived or tolled”); see also Alder Terrace
Inc. v. United States, 161 F.3d 1372, 1376-77 (Fed. Cir. 1998); Hart v. United States, 910
F.2d 815, 817 (Fed. Cir. 1990).

        It is well settled that a “claim accrues when all events have occurred that fix the
alleged liability of the Government and entitle the plaintiff to institute an action.”
Creppel v. United States, 41 F.3d 627, 631 (Fed. Cir. 1994) (quoting Japanese War Notes
Claimants Ass’n v. United States, 373 F.2d 356, 358 (Ct. Cl. 1967)); Patton v. United
States, 64 Fed. Cl. 768, 774 (2005) (quoting Kinsey v. United States, 852 F.2d 556, 557
(Fed. Cir. 1988)). “A claim does not accrue, however, ‘unless the claimant knew or
should have known that the claim existed.’” Id. (quoting Kinsey, 852 F.2d at 557 n.*);
see also Banks v. United States, 741 F.3d 1268, 1279-80 (Fed. Cir. 2014) (“The accrual
of a claim against the United States is suspended, for purposes of 28 U.S.C. § 2501, until
the claimant knew or should have known that the claim existed.”).



                                              4
        The court previously held that the statute of limitations began to run on or about
January 14, 2010, when the final judicial order of forfeiture was entered. Op. & Order 17
(citing Def.’s Mot. at Ex. 2 (Forfeiture Orders); Tr. 16:9-20 (explaining significance of
the 2010 final order of forfeiture)). The court cautioned, however, that its opinion was
not final stating:

       [T]he court does not discount the possibility that the weight of the evidence
       will shift if subsequent discovery reveals, inter alia, that Mendez’s right to
       payment accrued earlier or that he knew or should have known earlier that
       the government would not honor the allege[d] agreement . . . The parties
       are forewarned, therefore, that the court may revisit the limitations issue at
       a later date if the evidence so warrants.

Op. & Order 17 (internal citations omitted). The court finds that the evidence presently
before it – after a circumscribed period of discovery – compels it to revisit defendant’s
statute of limitations arguments.

       The parties now agree that, by email communication, lead prosecutor in the Battle
case, Assistant United States Attorney (AUSA) Juan Antonio Gonzalez, expressly refuted
on January 25, 2006, the existence of any “agreement.” Pl.’s Resp. 25 (acknowledging
this email as the first denial of an agreement); Pl’s App’x 294-95, ECF No. 62-26; Def.’s
Am. Mot. 18. In that communication, AUSA Gonzalez clearly related to Mendez’s
attorney the position that no agreement existed other than a “promise” to maintain
Mendez’s name in confidence for as long as possible. In particular, AUSA Gonzalez
wrote:

       Your letters have repeatedly mentioned various “agreements” entered into
       by the Government and [Mendez] . . . I have never spoken to you
       concerning this nor much less entered into any type of agreement . . . After
       first stating that you and I had entered into an agreement, your position then
       morphed into an “agreement” entered into by you and Assistant United
       States Attorney Robert Lehner on behalf of the United States Attorney’s
       Office. Mr. Lehner has repeatedly told me that no such agreement had been
       made. Your letter of September 21, 2005 now speaks of “agreements” with
       the Government entered into by Bob O’Bannon of the Department of State
       (DSS) after consultation and approval by David Shanks. However, Mr.
       Shanks confirms that he has never entered into or acquiesced to any
       agreement on behalf of the United States Attorney's Office . . . [Y]ou
       should know that only an Assistant United States Attorney has the right to
       enter into any such agreement on behalf of the United States Attorney’s

6
       Because plaintiff’s appendix contains more than one Bates stamp, the court refers
to the ECF page numbers instead.

                                             5
       Office. Certainly neither Robert O’Bannon, a DSS agent, nor David
       Shanks, a retired local police officer, have the authority to bind the United
       States . . . no agreement has ever been entered into on the part of the
       United States Attorney’s Office . . . . The only thing ever “promised” to
       [Mendez] is that we would do everything possible not to let the defense
       know that [he] may be [among the] witnesses in the case until the last
       possible moment.

Pl’s App’x 294-95.

        Upon receipt of this explicit denial of the existence of any agreement between the
parties, plaintiff would have or should have been made aware that defendant was not
willing to honor the alleged terms on which plaintiff based his expectations. See Kinsey,
852 F.2d at 557 n.*. The court finds that, based on the preponderant evidence now before
it, plaintiff’s breach of contract claim accrued on the date AUSA Gonzalez sent an email
to Mendez’s counsel refuting the agreement. Creppel, 41 F.3d at 631. Because
plaintiff’s claim was filed here in 2014, more than seven years later, it is untimely under
28 U.S.C. § 2501. Accordingly, plaintiff’s case must be DISMISSED under RCFC
12(h)(3).

IV.    Conclusion

       For the reasons set forth above, defendant’s amended motion for summary
judgment, ECF No. 60, is GRANTED and plaintiff’s complaint is DISMISSED with
prejudice. The Clerk of Court is directed to enter judgment accordingly.

       IT IS SO ORDERED.


                                              s/ Patricia Campbell-Smith
                                             PATRICIA CAMPBELL-SMITH
                                             Judge




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