                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-5026

                                   JABARI ZAKIYA,

                                                      Plaintiff-Appellant,

                                           v.

                                  UNITED STATES,

                                                      Defendant-Appellee.



      Jabari Zakiya, of Washington, DC, pro se.

      Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Brian M. Simkin, Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Emily C. Hewitt
                             NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2008-5026

                                       JABARI ZAKIYA,

                                                                          Plaintiff-Appellant,

                                               v.

                                      UNITED STATES,

                                                                          Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 07-CV-323, Judge Emily C.
Hewitt.
                          ___________________________

                            DECIDED: May 6, 2008
                            ___________________________


Before RADER, DYK, and MOORE, Circuit Judges.

PER CURIAM.

       Plaintiff-Appellant Jabari Zakiya appeals from an order of the Court of Federal

Claims dismissing, for lack of subject matter jurisdiction, his suit against the United

States for money damages for unjust imprisonment. Because we conclude that Zakiya

did not file his claim within the six-year statute of limitations, which constitutes a

jurisdictional limitation, the determination of the Court of Federal Claims is affirmed.

                                      BACKGROUND

       Zakiya was convicted of tax evasion and failing to file income tax returns in the

District Court for the District of Maryland, and, on February 18, 1994, was sentenced by

that court to imprisonment for a term of sixteen months, in addition to a three-year

period of supervised release, a fine of $25,000, and a special assessment. Based on

the date upon which Zakiya self-reported to serve his sentence, the term of
imprisonment under his sentence ended on May 5, 1996, and his administrative release

date with full good time credit was more than two months earlier, on February 29, 1996.

Zakiya was not released as of February 29, 1996, however, because he refused to sign

an agreement to pay the fine imposed as part of his sentence, as required as a

condition of supervised release pursuant to 18 U.S.C. § 3624(e). Because he continued

to refuse to sign the agreement, Zakiya remained confined beyond the end of his

sentence of imprisonment in May 1996.

      Zakiya brought a series of petitions seeking writs of habeas corpus and

mandamus from various courts. Ultimately, on May 4, 1999, the District Court for the

Eastern District of Virginia granted Zakiya a writ of habeas corpus and directed the

Federal Bureau of Prisons to release Zakiya forthwith. Zakiya v. Reno, 52 F. Supp. 2d

629, 638 (E.D. Va. 1999).     The district court determined that Zakiya’s petition was

properly characterized as asserting a challenge, pursuant to 28 U.S.C. § 2241, as to the

legality of his detention after the expiration of his sentence, rather than a challenge to

the legality of his conviction and sentence pursuant to 28 U.S.C. § 2224 or 2225. The

district court reasoned that section 3624(e) could not, consistent with the Constitution,

be interpreted to allow the executive branch (that is, the Bureau of Prisons) to detain

Zakiya beyond the end of the judicially imposed sentence of incarceration, citing

concerns as to separation of powers. Pursuant to the district court’s order, Zakiya

alleges that he was released from the custody of the Bureau of Prisons on May 5, 1999.

      Zakiya initiated the present action on May 24, 2007, by filing a complaint in the

Court of Federal Claims seeking money damages for his detention between February

29, 1996, and May 5, 1999. The Court of Federal Claims dismissed Zakiya’s complaint




2008-5026                               2
for lack of subject matter jurisdiction, concluding that it suffered from two fatal

jurisdictional defects.   First, the Court of Federal Claims concluded that Zakiya’s

complaint was barred by the applicable statute of limitations, 28 U.S.C. § 2501, which

provides that any claim otherwise within the jurisdiction of the Court of Federal Claims

must be “filed within six years after such claim first accrues.” The Court of Federal

Claims concluded that Zakiya’s complaint was filed more than six years after his release

from incarceration, which the court determined was the last possible date upon which

his claim could have accrued.

       Second, the Court of Federal Claims concluded that it also lacked jurisdiction

because Zakiya had failed to make the minimum factual allegations necessary to invoke

the Court of Federal Claims’s jurisdiction pursuant to the two statutory provisions

authorizing a claim for money damages for unjust imprisonment, 28 U.S.C. §§ 1495 and

2513. The court concluded that Zakiya had not alleged, and could not allege, that his

conviction had been reversed or set aside because he was not guilty or because he was

innocent and unjustly convicted.

       Zakiya timely appealed, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(3).

                                     DISCUSSION

       We conclude that Zakiya’s claim is barred by 28 U.S.C. § 2501 because it was

filed more than six years after Zakiya was released from incarceration. As the Supreme

Court’s recent opinion in John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750

(2008), explained, section 2501 imposes a jurisdictional requirement. Id. at 753-54.

Despite Zakiya’s contrary argument, the Court of Federal Claims was obligated to




2008-5026                               3
address the limitations issue sua sponte, even though the issue was not raised by the

government. Id. at 752.

      Zakiya also argues that the Court of Federal Claims failed to offer him an

adequate opportunity to respond to the statute of limitations issue before dismissing his

complaint sua sponte, and that if afforded a greater opportunity to respond, he would

have established that he would be entitled to equitable tolling because he “had pursued

timely civil litigation in the federal courts . . . [and] was barred from simultaneously

pursuing a claim under 2513.”      Appellant’s Reply to Appellee’s Informal Br. at 2 ∗

Although delay caused by a defective filing in another court has often been recognized

as a proper ground for equitable tolling of a limitations period, even as against the

United States, in other contexts, see, e.g., Irwin v. Department of Veterans Affairs, 498

U.S. 89, 95-96, it is now clearly established that the limitations period imposed by

section 2501 is jurisdictional, making equitable tolling unavailable as a matter of law.

See John R. Sand & Gravel Co., 128 S. Ct. at 753-53. Accordingly, Zakiya could not

have prevailed on equitable tolling regardless of any evidence of ongoing civil litigation

that he might have produced. We conclude that Zakiya’s claim is time-barred, and we

need not reach the Court of Federal Claims’s alternative ground for dismissal.

      For this reason, the determination of the Court of Federal Claims is affirmed.

      No costs.


      ∗
             It appears that in this regard, Zakiya is referring to an action he filed
against the United States and a series of individual defendants seeking money
damages under the Federal Tort Claims Act and under the theory of Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for his
allegedly improper confinement. The last of these claims were dismissed by the District
Court for the Northern District of West Virginia in 2005, Zakiya v. United States, No.
CIV A 1:04CV38 (N.D. W. Va. Mar. 18, 2005).


2008-5026                               4
