N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
THOMAS NUSSBAUM, Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2020

- 1170

______________________
Appeal from the United States Court of Federal Claims
in No. 1:19

- cv

- 00376

- CFL, Senior Judge Charles F. Lettow.

______________________

Decided: November 17, 2021

______________________

T HOMAS N USSBAUM , Millbrae, CA, pro se.

S ONIA M ARIE O RFIELD , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant

- appellee. Also represented by
B RIAN M. B OYNTON

, D EBORAH A NN B YNUM
, M ARTIN F.
H OCKEY

, J R

.

______________________

Before L OURIE

, R EYNA

, and T ARANTO

, Circuit Judges

. Case: 20-1170 Document: 59 Page: 1 Filed: 11/17/2021NUSSBAUM v. US 2

P ER C URIAM

. Appellant Thomas Nussbaum appeals the dismissal of
his court action by the U.S. Court of Federal Claims upon finding that Nussbaum’s action is untimely pursuant to
41 U.S.C. § 7104(b)(3)

. For the reasons explained below,
we affirm.

B ACKGROUND

In 2001, the Federal Correctional Institution in Victorville, California (“FCI Victorville”) sought repair work

on some boilers , and Nussbaum submitted a bid to perform
the work. See Nussbaum v. United States , 145 Fed. Cl. 5, 8 (2019) (citing Nussbaum v. United States , No. 19

- 376C,
ECF No. 1 (“Compl.”) Ex. 1 at 2)). According to Nu ssbaum,
he learned that FCI Victorville wanted to award the project
to Cal Inc. , a company with a preexisting General Services Administration (“GSA”) Schedule Contract. Id. (citing Compl. at 6, Ex. 11 at 2). Nussbaum sent his bid proposal
to Cal Inc

. Id. (citing Compl. at 17). FCI Victorville issued a purchase order to Cal Inc. under the GSA Schedule Contract, using Cal Inc. as a “broker” for the boiler project

. Id. (citing Compl. a t 6). Nussbaum became a subcontractor to Cal Inc. and supplied materials and performed construction work. Id.

During construction, disputes arose. After the project was completed around 2003

, Nussbaum sued Cal Inc. in
state court, alleging fraud and other claims. Id. (citing Compl. at 7

, Ex. 7 at 4). T h e state court action settled for $80,000. See i d. (citing Compl. at 12, 18). As part of the settlement, Cal Inc. agreed to support Nussbaum in seeking payment of costs related to change orders from
FCI Victorville

. Id. (citing Compl. at 18

, Ex. 6). I n January 2010, Nussbaum sent Form SF 30 1 requests to

1 Standard Form 30 (SF 30), titled “Amendment of Solicitation/Modification of Contract,” is used for amending Case: 20-1170 Document: 59 Page: 2 Filed: 11/17/2021NUSSBAUM v. US 3

U.S. Bureau of Prisons (“BOP”) offices in Dublin, California

, and Grand Prairie

, Texas , claiming payment for the change order costs

. Id. (citing Compl. at 12). The co ntracting officer, Ms. Arakaki, never responded to Nussbaum.
Id. On March 10, 2010 , John Wenkman from the Grand
Prairie office issued a denial of Nussbaum’s claim on thegrounds that the request should have come from the contract holder , Cal Inc., not Nu ssbaum. Id. (citing Compl.

at 7

, Ex. 3 at 2).

Nine years passed, and in March 2019, Nussbaum sued
BOP in the U.S. Court of Federal Claims (“ Claims Court ”)

. I

d. at 7. Nussbaum asserted four causes of action: (1) fraudulent and intentional misrepresentation; (2) negligent misrepresentation; (3) breach of the implied covenant of good faith and fair dealing; and (4) unjust
enrichment. Id. (citing Compl. at 15

– 17).

The government moved to dismiss on grounds that the
action wa s barred by the six

- year statute of limitations set
forth in 28 U.S.C. § 2501. 2 I d. T he Claims Court agreed that Nussbaum’s complaint was time

- barre d but clarified that § 2501 does not apply because Nussbaum’s action is governed by the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101

– 7109 . The CDA sets time limitations for bringing
an action

, in this case six years to submit an administrative
claim to a contracting officer

, and one year after the contracting officer denies a claim to bring suit before the
Claims Court

. 41 U.S.C. §§ 7103(a)(4)(A), 7104(b)(1)

. The Claims Court determined that Nussbaum’s lawsuit was untimely under the applicable one

- year statute of limitations because seve ral years had passed since his

or modifying purchase orders and contracts with the government. See FAR 53.243.

2 Generally, every claim brought before the Claims Court must be “ filed within six years after such claim first
accrues.” 28 U.S.C. § 2501. Case: 20-1170 Document: 59 Page: 3 Filed: 11/17/2021NUSSBAUM v. US 4

Form SF 30 administrative requests were denied

. Nussbaum , 145 Fed. Cl. at 12

– 13. The Claims Court also determined that equitable tolling did not apply. 3 Id. at 13

– 14. The Claims Court dismissed the action for failure to state a claim. Id. at 14. Nussbaum appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

S TANDARD OF R EVIEW
In appeals from the Claims Court , we review legal conclusions de novo and factual findings for clear error. Casitas Mun. Water Dist. v. United States , 708 F.3d 1340, 1351 (Fed. Cir. 2013) (citing Estate of Hage v. United
States , 687 F.3d 1281, 1285 (Fed. Cir. 2012)). Whether the Claims Court properly dismissed an action for failure to state a claim upon which relief may be granted is a question of law subject to de novo review. Turping v. United States , 913 F.3d 1060, 1064 (Fed. Cir. 2019). In reviewing a dismissal on the pleadings, “we must accept as true all

t he factual allegations in the complaint” and “must indulge
all reasonable inferences in favor of the non

- movant.”
Sommers Oil Co. v. United States , 241 F.3d 1375, 1378 (Fed. Cir. 2001) (citations omitted).

3 Whether the CDA’s one

- year limitations period is subject to equitable tolling remains an open question. But

we agree with the Claims Court that equitable tolling was
not availab le to Nussbaum in any circumstance. For equitable tolling to apply, Nussbaum is required to establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Menomi nee Indian Tribe of
Wis. v. United States , 136 S. Ct. 750, 755 (2016). T he record does not support that Nussbaum has met those requirements. See Nussbaum , 145 Fed. Cl. at 14. Case: 20-1170 Document: 59 Page: 4 Filed: 11/17/2021NUSSBAUM v. US 5

D ISCUSSION

Nussbaum argues that the Claims Court misapprehended the facts of this case and , as a result, erred in its determination concerning the nature of the purchase order
contract between FCI Victorville and Cal Inc. Appellant’s
Br. 2. According to Nussbaum, t his error led the Claims
Court to find his claims time

- barred under the CDA. Id. We disagree.

The CDA applies to any express or implied contract made by an executive agency for, among other things, the procurement of services or the procurement of constr uction. 41 U.S.C. § 7102(a). For disputes arising from such
contracts, t he CDA establishes a n administrative appeal process that must be exhausted before filing suit in the
Claims Court

. See England v. The Swanson Grp., Inc.

, 353 F.3d 1375, 1379 (Fed. C ir. 2004). A contractor who has a claim against the government must initiate the administrative process by submitting a n administrative claim to the contracting officer, 41 U.S.C. § 7103 (a)(1)

, “ within 6 years after the accrual of the claim ,” 41 U.S.C. § 7103(a)(4)(A).

Upon receipt of a contractor’s claim , the contracting officer must , within sixty days of receiving the claim, issue a decision or notify the contractor of the time within which a
decision will be issued. 41 U.S.C. § 7103(f)(2). If a contracting officer fails to issue a decision within the prescribed period

, such failure “ is deemed to be a decision by the contracting officer denying the claim .” 41 U.S.C. § 7103(f)(5). After a claim is denied, the contractor may appeal to an age ncy board or file suit before the Claims
Court . 41 U.S.C. § 7104(a)

– (b). Any such suit to the Claims Court must be brought within one year from receipt
of the contracting officer’s denial . 41 U.S.C. § 7104(b)(3).

Nussbaum argues that no limitations per iod applies to
his action because he has alleged that the contracting officer and others committed fraud, and that claims involving Case: 20-1170 Document: 59 Page: 5 Filed: 11/17/2021NUSSBAUM v. US 6

fraud have no time limitations . Appellant’s Br. 6

– 7 (quoting 41 U.S.C. § 7103(a)(4)(B)). But Nussbaum’s reliance on

41 U. S.C. § 7103(a)(4)(B) is misplaced. That provision appl ies to causes of action by the Federal Government against

contractor s that involve fraudulent claims . 41 U.S.C. § 7103(a)(4)(B). Nussbaum’s claims against the government are not “claim[s] by the Fede ral Government against
a contractor.” See id.

The Claims Court is correct that Nussbaum’s action is governed by 41 U.S.C. §§ 7103 and 7104. Under § 7103 (a),Nussbaum made a timely filing before the contracting officer. See 41 U.S.C. § 7103(a); Nussbaum , 145 Fed. Cl.

at 12

– 13 . He was required under § 7104(b), however, to bring suit before the Claims Court within one year of denial of his claim by the contracting officer, which he failed to do.
See 41 U.S.C. § 7104(b). Here, the record shows t hat Nussbaum filed suit at the Claims Court approximately nine years after he was denied by the contracting officer. See
Nussbaum , 145 Fed. Cl. at 13. Consequently, the Claims Court was correct to dismiss the action as untimely.

Lastly, we note that Nuss baum’s causes of action would also be barred under § 2501. Section 2501 provides that any claim filed before the Claims Court must generally be brought within six years after it accrues. 28 U.S.C. § 2501; see also Martinez v. United States , 333 F.3d 1295 , 1303 (Fed. Cir. 2003) (en banc)

. Nussbaum’s claims accrued no
later than 2010 , and t his action was filed in 2019

, approximately three years too late under § 2501

. C ONCLUSION

We have considered the rest of Nussbaum’s arguments
and find them without merit . The Claims Court correctly
determined that this action is time

- barred. We affirm the judgment of the Claims Court.

AFFIRMED Case: 20-1170 Document: 59 Page: 6 Filed: 11/17/2021NUSSBAUM v. US 7

C OSTS

No costs. Case: 20-1170 Document: 59 Page: 7 Filed: 11/17/2021