# I n the United States Court of Federal Claims

No. 14-497C

(E-Filed: November 28, 2017)

JOSE MENDEZ,

Plaintiff,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) Motion for Reconsideration, RCFC 59 & RCFC 60; Claim Accrual; Accrual Suspension Rule; Permissive
Administrative Remedies.

Kenneth F. McCallion, New York, NY, for plai ntiff. Kristian K. Larsen, New York, NY,
of counsel.

Alexander O. Canizares, Trial Attorney, w ith whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirs chman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for defendant.

OPINION

CAMPBELL-SMITH, Judge.

Before the court is plaintiff’s motion for reconsideration of the judgment dismissing his suit. ECF No. 83. Plaintiff’s motion is founded on Rules 59(e) and 60(b)
of the Rules of the United States Court of Federal Claims (RCFC). Because no valid ground for vacating or amending the court’s judgment has been proffered, plaintiff’s
motion is DENIED

. 1

1 Defendant filed a Notice of Supplemen tal Authority on November 15, 2017, ECF No. 93, which the court did not find to be relevant to the issues presented here on reconsideration. For this reason, the Notic e is not discussed further in this opinion.2 I. Background

Plaintiff seeks compensation for work performed as a confidential informant and his suit is founded on allegations of the existence of a contract for the provision of those services. According to plaintiff, the United States agreed to “make a good faith best efforts [sic] to compensate Pl aintiff for his services and a ssistance to the Government.” Am. Compl., ECF No. 57 ¶ 79. Plaintiff contends that the government breached this “express oral agreement,” id. ¶¶ 79, 83, or, in the alternative, that the government breached an implied-in-fact contract on the same subject, id. ¶ 91. Familiarity with the court’s two prior opinions issued in this case, Mendez v. United St ates, 121 Fed. Cl. 370 (2015) (Mendez I), and Mendez v. United States, 132 Fed. Cl. 55 (2017) (Mendez II), is presumed.

In Mendez II, the court found that any su ch breach of contract would have
occurred when an Assi stant United States Attorney (A USA) bluntly told plaintiff’s counsel, in an email, that no such agreement for confidentia l informant services existed between plaintiff and the United States. Th at email was sent on January 25, 2006. Because this suit was filed on June 10, 2014, more than eight years later, the court dismissed the action as untimely pursua nt to 28 U.S.C. § 2501 (2012).

Plaintiff timely raised three grounds for reconsideration in his motion for reconsideration/relief from judgment. ECF No . 83. First, plaintiff disagrees that the 2006 AUSA email triggered claim accrual, characterizing the email as, at most, an anticipatory repudiation of cont ract performance (rather than a contract breach). Id. at 25-31. Second, plaintiff argues that even if the 2006 AUSA email would otherwise suffice to trigger claim accrual, the accrual su spension rule, discu ssed infra, applies in
these circumstances. Id. at 31- 33. Third, plaintiff argues th at the ongoing exhaustion of administrative remedies prevented the accrual of his claim in 2006. Id. at 33-35. In his reply brief, plaintiff raised a fourth ground for reconsideration -- that the AUSA did not possess the authority to conclu sively refute the existence of a confidential informant
services contract with the United States. 2 Pl.’s Reply, ECF No. 92 at 15-18.

II. Legal Standards

A. RCFC 59

2 The authority argument is not properly be fore the court. S ee, e.g., Arakaki v. United States, 62 Fed. Cl. 244, 246 n.9 (2004) (“The court will not consider arguments that were presented for the fi rst time in a reply brief or after briefing was complete.” (citing Novosteel SA v. United States, 284 F. 3d 1261, 1274 (Fed. Ci r. 2002); Cubic Def. Sys., Inc. v. United States, 45 Fed. Cl. 450, 467 (1999))).3 A motion for reconsideration is permitted under RCFC 59, which provides that such a motion may be granted for any reason fo r which a new trial has been granted in an action at law, or for which a rehearing has been granted in a suit in equ ity, in the courts of the United States. See RCFC 59(a)(1). The decision whether to grant reconsideration pursuant to RCFC 59 lies largel y within the discretion of the court. Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). However, a motion for reconsideration will be gr anted only upon a demonstration of a “‘manifest error of law, or mistake of fact, and is not in tended to give an unhappy litigant an ad ditional chance to sway the court.’” Bishop v. United States, 26 Cl. Ct. 281, 286 (1992) (quoting Circle K Corp. v. United States, 23 Cl. Ct. 659, 664-65 (1991)). The movant must show that: (a) an intervening change in the controlling law has occurred since the original decision; (b) evidence not previously available has beco me available; or (c) the motion is necessary to prevent manifest injustice. Id.

B. RCFC 60

A grant of relief from judgment under RCFC 60(b) is within the discretion of the
trial court. Sioux Tribe of Indians v. United States, 862 F.2d 275, 279 (Fed. Cir. 1988) (citing United States v. Atkins on, 748 F.2d 659, 66 0 (Fed. Cir. 1984)). It is important to
note that a motion under Rule 60 (b) is not a permissible subs titute for an appeal to the United States Court of Appeals for the Federal Circuit, this court’s appellate forum. See Patton v. Sec’y of Dep’t of Health & Human Servs., 25 F.3d 1021, 1028 (Fed. Cir. 1994) (acknowledging “the settled principle that [RCF C 60(b)] is not to be used as a substitute for an appeal” (citing Ackermann v. United States, 340 U.S. 193, 198-99 (1950))). Relief under Rule 60(b)(6), in particul ar, is limited to ex traordinary circumstan ces. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (c itations omitted).

III. Discussion

A. Not an Anticipatory Repudiation

As the court stated in Mendez II, plaintiff knew all of the necessary facts to file his
claim for breach of contract wh en he received the 2006 AUSA email. Plaintiff argues, however, that the email was, at most, an antic ipatory repudiation of the agreement, citing Franconia Associates v. United States, 536 U. S. 129, 142-48 (2002), and as such could not have triggered the statute of limitations. ECF No. 83 at 26-31. The court disagrees
that the 2006 AUSA email ca n be compared to the statutory enactment discussed in Franconia. There is no equivalence betwee n the anticipatory repud iation of government contract performance due years later, a repudi ation which was embodied in a statute, and
the curt denial of the existence of a conf idential informant servic es contract by this
AUSA. Franconia does not control here.

The 2006 AUSA email was a specific communication from a government official that a claimant would receive nothing, in lie u of an anticipated amount for contract4 services. This is an alleged breach of contract of the type discussed in Fattore v. United States, 312 F.2d 797 (Ct. Cl. 1963 ). In that suit, the Fattores expected to receive a certain amount in moving expenses as part of thei r agreement to vacate and sell land to the United States military, but they received a lower reimbursement and filed suit to recover
the difference. Id. at 798-99. The Fattores re ceived a voucher in Fe bruary 1955, stating what the government would pay for moving expenses, and a Treasury check in March 1955, for the amount stated in the vouche r. The claim accrual question turned on
whether their claim accrued in February, when they receive d the voucher, or in March, when they recei ved the check.

Because their claim accrued at the tim e the government informed them (in February) of what they would later receive (i n March), their suit, filed six years later in March 1961, was untimely and dismissed. Id. at 799-800. Thus, Fattore stands for the proposition that the “date the [ government] had made a final determination of the amount it considered due to plaintiffs” was the date the plaintiffs’ claim accrued. Id. at 800. The voucher in Fattore is the equivalent of the 2006 AUSA email in this case, which informed plaintiff that he would get no compensation in return for any co nfidential informant services he had provided. Plaintiff’s clai m accrued in 2006 and was untimely filed in
2014 in this court.

As defendant argues, the 2006 AUSA em ail was -- at that time -- a “present” breach of contract, if, indeed, a contract fo r confidential informan t services had been formed between plaintiff and the United States; it was not an anticipatory repudiation of future government contract performance. See Def.’s Resp., ECF No. 89 at 4-5 (distinguishing the “present breac h” from an anticipatory repudi ation). Plaintiff had fully performed his part of any such agreemen t, and the 2006 AUSA email was a clear indication that the government was refusing to perform commensurate “good faith best efforts to compensate Plainti ff for his services and assistan ce to the Government.” ECF No. 57 ¶ 79. Thus, any claim for breach of contract pursuant to the alleged agreement
accrued in 2006.

An accrual analysis similar to the one the court employs here was presented in Steel Improvement & Forge Co. v. United St ates, 355 F.2d 627 (Ct. Cl. 1966). In the aftermath of a terminated government contr act, a subcontractor, Steel Improvement, was left with an inventory of components it had forged that were no lo nger needed by either the prime contractor or the government. Id. at 629. A termination claim was processed, but government paymen ts on Steel Improvement’s portion of the termination claim never reached Steel Improvement due to a bankruptc y affecting the prime contractor. Steel Improvement sought relief directly from the gove rnment, to no avail. Id. at 630. Steel Improvement eventually filed suit in the Court of Claims, asserting that the subcontractor had entered into either an express or imp lied contract to settle its termination claim directly with the government.5 Unfortunately, Steel Improvement waited to file suit more than six years from the time it had performed its obligations under th e alleged termination settlement agreement. Id. According to Steel Improvement, it had sh ipped the components to a naval depot in return for a fixed-price termination settleme nt. The subcontractor’s full performance of the alleged termination settlement contra ct triggered claim accrual:

In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to sh ip the termination inventory. If an express contract had been created, th en plaintiff comple tely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed un til more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contra ct could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff had completely performed its part of the implied bargain on the date of shipment of the materials (October 6, 1954). It was at that time that any cause of action plaintiff might have ha d on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory.

Id.

Here, plaintiff had fully performed any confidential informant services before 2006. According to defendant, plaintiff’s participation in criminal proceedings did not extend beyond a 2002 trial, ECF No. 89 at 5, and this asser tion is consistent with the factual allegations in plaintiff’s amended co mplaint, ECF No. 57 at 11-14. The court does not determine the precise date that pl aintiff’s confidential informant services concluded. Rather, following Steel Improvement, the court finds that plaintiff’s claim accrued no later than 2006, and th at this suit was untimely filed.

B. No Accrual Suspension

Plaintiff relies on the accrual suspension rule in an attempt to avoid the application of this court’s six-year statute of limitations . ECF No. 83 at 31-33 ; Pl.’s Reply, ECF No. 92 at 10-15. According to th is rule, claim accrual may be “suspended, for purposes of 28 U.S.C. § 2501, until the claima nt knew or should ha ve known that the claim existed.” Martinez v. United States, 333 F.3d 1295, 1319 (Fed. Cir. 2003) (en banc) (citations omitted). Plaintiff argues that because he and his attorney were getting mixed signals from various government actors before and after receiving the 2006 AUSA email, he did not know, nor should he have known, that his claim for brea ch of contract existed in

2006.

As defendant notes, the accr ual suspension rule is stri ctly and narrowly applied. See Martinez, 333 F.3d at 1319. To benefit from the rule, plai ntiff must show either that6 his claim was inherently unknowable in 20 06 or that the government concealed its
contract breach from him at th at time. E.g., Banks v. Un ited States, 741 F.3d 1268, 1280 (Fed. Cir. 2014) (citing Young v. United States, 529 F.3d 13 80, 1384 (Fed. Cir. 2008)). The court has given due consider ation to all of the facts alle ged in plaintiff’s motion and his reply brief. None of the alleged facts support a finding that plaintiff’s breach of contract claim was inherently unknowable in 2006, or that the government concealed its breach from plaintiff in 2006. The 2006 AUSA email clearly informed plaintiff of the government’s breach of the alleged contract, a nd plaintiff’s breach claim accrued at that
time.

C. Pursuit of Administrative Reme dies Did Not Delay Claim Accrual

Plaintiff, relying on Crown Coat Front Co. v. United States, 386 U.S. 503 (1967) and Nager Electric Co. v. Unite d States, 368 F.2d 847 (Ct. Cl. 1966), asserts that his
breach claim did not accrue until a fina l administrative de cision denying him compensation for confidential in formant services was rendered in 2013. ECF No. 83 at 33-35. Neither of these cases, however, is of any assistance to plaintiff. The pursuit of administrative remedies only delays claim accrual when those remedies are mandatory prerequisites to suit. See, e.g., Martinez, 333 F.3d at 1304 (“As a general matter, if a dispute is subject to mandatory administrativ e proceedings, the plaintiff’s claim does not accrue until the conclusion of those proceedi ngs.” (citing Crown Co at, 386 U.S. at 511; Lins v. United States, 688 F. 2d 784, 786 (Ct. Cl. 1982); Nager, 368 F.2d at 853)). If, on the other hand, permissive admi nistrative remedies are sought, those proceedings have no
effect on claim accrual:

[I]n Tucker Act suits, a plaintiff is not required to exhaust a permissive administrative remedy before bringing suit. As a corollary of that rule, the court has held that a plaintiff’s invo cation of a permissive administrative remedy does not prevent the accrual of the plaintiff’s cause of action, nor
does it toll the statute of limitati ons pending the exhaustion of that administrative remedy.

Id. (citations omitted).

This suit was brought under the Tucker Ac t, under 28 U.S.C. § 1491 (2012), ECF No. 57 ¶ 1, and seeks damages for breach of contract, id. at 23-25. Plaintiff has not pointed to a mandatory administrative procedure that was a prerequisite to this suit. As defendant notes, the exhaustion of permissive administrative remedies, such as those pursued by plaintiff, has no effect on claim accrua l. ECF No. 89 at 7. The administrative procedures noted in plaintiff’s motion, ECF No . 83 at 35, were not prerequisites to the filing of a breach of contract suit in this c ourt and, thus, did not delay the accrual of plaintiff’s claim. See, e. g., Steel Improvement, 355 F.2d at 631 (“It is only when7 pursuance of administrative remedies is a prerequi site to suit that the statute of limitations is suspended or tolled by such pur suance.”) (citation omitted).

IV. Conclusion

Having considered all of pl aintiff’s arguments for rec onsideration and relief from judgment, the court finds no error of law, mi stake of fact, or extraordinary circumstance which would permit the court to vacate or amend its judgment entered May 4, 2017. Accordingly, plaintiff’s motion for reconsideration, ECF No. 83, is DENIED

.

IT IS SO ORDERED.

s/ Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH Judge