                               ORIG!t$AI
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                                   No. 14-389 C                          JAN   | 3 20t5
                             (Filed January 13, 2015)
                                                                         U.S. COURT OF
JOHN C. BRISBIN,                                                        FEDERAL CLAIMS
INDIVIDUALLY, AND DBA
CONSTRUCTION                               Contract Disputes     Act;  Statute of
DEVELOPMENT SYSTEMS,                       Limitations; Transfer     Statute (28
                           Plaintifl       u.s.c. $ 163r).
              v.

 THE UNITED STATES,
                           Defendant.

      John C. Brisbin, Fresno, CA, pro se plaintiff

      Lauren S. Moore, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., with whom appeared Joyce R.
Branda, Acting Assistant Attorney General, Robert E. Kirschman, -/r., Director,
Donald E. Kinner, Assistant Director, for defendant. David Sett, Division Counsel,
Federal Highway Administration, United States Department of Transportation, of
counsel.

                                       OPINION

      Merow, Senior Judge

      Plaintiff filed his complaint with this court on May 6,2014, alleging that the
govemment breached a contract relating to plaintiff s road work in Sequoia and
Kings Canyon National Parks. ^!ee Doc. 1,lf 5. In the complaint, plaintiff alleges
$823,548.83 in damages. See id.,11 70.

       This is the second complaint plaintiff has filed for the alleged breach. The
first case was filed in the United States District Court for the Eastem District of
California, on May 13,2013. See Case No. 1:13-cv-699, Doc. 1. The district court
held that the Little Tucker Act,28 U.S.C. $ Ba6@)(2), deprived it of jurisdiction
because plaintiffs claim exceeded $10,000, and dismissed the case on March 12,
2014. See Case No. 1:13-cv-699, Doc. 20. As the district court explained, the
"complaint alleges more than $10,000 in damages based on the Govemment's
breach of a contract with Mr. Brisbin and reveals that exclusive jurisdiction over
its claims is with the Federal Claims Court." Id. at 5. In its order dismissing the
case, the district court did not discuss the propriety of transferring the case to this
court. See id.

       Plaintiff now seeks relief in the proper court, but the govemment has filed a
motion to dismiss for lack of subject matter jurisdiction alleging that the instant
case is untimely. See Doc.4.

      PLAINTIFF'S CLAIMS TO THE CONTRACTING OFFICER

       Plaintiff submitted five claims to the contracting officer relating to contract
modifications during the course of perforrnance, and the contracting officer issued
separate decisions on each. See Doc. 4 at 2. The contracting officer issued a
decision on plaintiff s February 8, 2010 claim on May 5, 2010, see Doc. 4, App. at
23-28; plaintiff s February 9,2010 claim on March 10, 2010, see Doi. 4, App. at
29-36; plaintiff s March 25,2010 claim on June 3, 2010, see Doc. 4, App. at 37-
45; plaintiff s July 6, 2011 claim on May 3,2012, seeDoc.4, App. at 46-103; and,
plaintiff s September ll,2012 claim on November 29,2012, see Doc.4, App. at
104-r12.

n.    THE STATUTE OF LIMITATIONS UNDER THE                              CONTRACT
      DISPUTES ACT

      A.     Plaintiff did not file his claims in this court within the statutory
             12-month period.

       The term of the contract goveming disputes refers to 48 C.F.R. I52.233-1,
see Doc. 4, App. at 126, which states in subsection (a) that "[t]his contract is
subject to 41 U.S.C. chapter 71, Contract Disputes," known as the Contract
Disputes Act. The Contract Disputes Act gives plaintiff the election to bring a de
novo action directly on the claim in this court "within 12 months from the date of
receipt of a contracting officer's decision . . . ." See 4l U.S.C. $ 710a@)(3). This
same l2-month limitation period is explicitly stated in each of the contracting
officer's decisions in this case. See Doc. 4, App. at27,35,45,103,112.

       Plaintiff seems to argue that the 12-month statute of limitations began to run
as to all of his claims on the date of the contracting officer's most recent decision,
November 29,2012. See Doc. l0 at2 ("ft was known, or should have been known
to both parties that a Board Of Contract Appeals, or a Federal Court would refrain
from making a decision on any one of these issues regarding Payment until the
Board or Court had been assured that all outstanding issues relating to Payment
under this Contract had been submitted for their determination.") (emphasis in
original); see id. at 6 (noting that the most recent decision from the contracting
officer "enumerated all of the previously submitted Claim Issues"). The
govemment counters that the statute of limitations began as to each claim at the
time the individual ciaim was decided. See Doc.    ll   at 5-6.

       These divergent approaches to calculating the statute of limitations would
have had a material impact on the plaintiff s case had it been properly before the
district court. Under plaintiff s methodology, all of his claims for relief in the
district court were timely, since he filed the complaint in that court approximately
five and half months after the contracting officer's most recent decision. Under the
govemment's methodology, plaintiff would be permitted to challenge only the
contracting officer's decision on his September 11, 2012 claim.

       The court need not resolve this issue, however, because even under the
plaintifls reasoning, all of his claims were filed in this court outside the 12-month
period. The most recent decision from the contracting officer, on November 29,
2012, was issued more than 17 months before the instant complaint was filed on
May 6, 2014. And when a complaint is filed outside the statute of limitations, the
court is deprived of jurisdiction . Renda Marine, Inc. v. United States, 7 | Fed. Cl.
782,789 (2006) ("Timely filing provides the court with the requisite jurisdiction to
allow adjudication of the claim.") (citing, inter alia, Krueger v. United States, 26
Cl. Ct. 841, 844 (1992) ("Ifthe contractor does not begin an action within one year
of the receipt of the final decision by the contracting officer, the Claims Court
lacks the requisite jurisdiction to entertain the claim, and the contracting officer's
decision is final and conclusive.")).

      B.     The statute of limitations was not tolled by the district court
             action.

        Plaintiff seems to suggest that his complaint should survive the motion to
dismiss despite having filed it more than 12 months after the contracting officer's
most recent decision because the statute of limitations was tolled while the first
case was pending before the district court. See Doc. 10 at 5. Plaintiffs case was
pending before the district court for approximately 10 months, from May 13,2013
until March 12,2014. See Case No. 1:13-cv-699, Docs. 1,20. lf the statute of
limitations was tolled for that 10-month period, at least plaintiffs challenge to the
contracting officer's decision rendered on November 29, 2012 would be timely
here.

        Plaintiff bases his argument on 28 U.S.C. g 1500, which provides:

        The United States Court of Federal Claims shall not have jurisdiction
        of any claim for or in respect to which the plaintiff or his assignee has
        pending in any other court any suit or process against the United
        States or any person who, at the time when the cause of action alleged
        in such suit or process arose, was, in respect thereto, acting or
        professing to act, directly or indirectly under the authority of the
        United States.

Whiie the court appreciates the appeal of plaintiff s argument, Federal Circuit
precedent does not support his position. In UNR Industries, Inc. v. United States,
the Circuit reviewed the history and interpretation of section 1500 at length. See
962 F.2d l0l3 (1992). The court concluded that the purposes of section 1500 are
"to force an election of forum and to prevent simultaneous dual litigation against
the govemment." See id. at 1021. Allowing plaintiff to file a successive suit in
this court runs contrary to the purpose of forcing plaintiffs to choose between suing
in this court or another.

       In addition, the existence of the transfer statute,23 U.S.C. $ 163 I, supports
this conclusion. Section 1631, "Transfer to cure want of jurisdiction," provides:

         Whenever a civil action is filed in a court . . . and that court finds that
        there is want of jurisdiction, the court shall, if it is the interest of
        justice, transfer such action. . . to any other such court in which the
        action . . . could have been brought at the time it was filed or noticed,
        and the action . . . shall proceed as ifit had been filed in or noticed for
        the court to which it is transferred on the date upon which it was
        actually filed in or noticed for the court fiom which it is transferred.

As the court in UNR Industries observed, this mechanism for transfer helps to
mitigate the potentially harsh consequences of filing in the wrong court. See 962
F.2d at 1022.

       The court, therefore, concludes that the 12-month statute of limitations was
not tolled while plaintiff s suit was pending in the district court and the Court of
Federal Claims does not have the requisite jurisdiction over this successive suit.
III.   TRANSFER FROM THE DISTRICT COURT

       In response to the govemment's motion to dismiss, plaintiff also notes that
he chose to file in the district court after considering section 1631, governing the
transfer of improperly filed cases (quoted above). See Doc. 10 at 4. While it may
have been advisable for plaintiff to move the district court to transfer the case, his
reliance on the legal operation of this section was not altogether illogical. The
Ninth Circuit has held that section 163 I is mandatory in nature. See Hays v.
Postmaster General, 868 F.2d 328,331 (9th Cir. 1989). The court explained:
"Once the district court has determined that it lacks jurisdiction, but that another
federal court has authority to hear the case, the district court must consider whether
the action would have been timely if it had been filed in the proper forum on the
date filed, and if so, whether a transfer would be in the interest of justice." See ld
(intemal citations omitted).

       The district court did not discuss the possibility of transferring the case to
thiscourt,andinstead,simplydismissedthecase.SeeCaseNo. 1:13-cv-699,Doc.
20 at 5. Deciding whether the district court erred in dismissing the case without
considering a transfer, however, is no more within this court's purview than are
plaintiff s untimely claims. If plaintiff wishes to have the district court transfer the
case to this court, he must file a motion for relief from a judgment or order with the
district court pursuant to Federal Rule of Civil Procedure 60, and ask the district
court to do so.

IV.    CONCLUSION

       For the foregoing reasons, the govemment's motion is GRANTED, and this
case is DISMISSED.

       SO ORDERED.




                                               Senior Judge
