United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3323

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B. B. Andersen, *

*

Plaintiff/Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri. 

United States Department of Housing *

and Urban Development, *

*

Defendant/Appellee. *

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Submitted: April 19, 2012

Filed: May 3, 2012

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Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.

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MURPHY, Circuit Judge.

The United States Department of Housing and Urban Development (HUD)

debarred B. B. Andersen from obtaining federal government contracts in 1990 after

he failed to make required payments to the agency. Twenty years after HUD had sent

him notice of the debarment, Andersen brought this action seeking declaratory and
injunctive relief against its enforcement. The district court1

 dismissed the complaint

as barred by the statute of limitations, and Andersen appeals. We affirm.

Two of Andersen’s companies served as the developer and general contractor

on a HUD project called the Burke Center in Cheyenne, Wyoming, and a dispute arose

in 1985 concerning alleged construction flaws. Andersen and his companies entered

into a settlement agreement with HUD where they agreed to pay $75,000 to settle all

claims related to the Burke Center project. Andersen made an initial payment of

$15,000 when he signed the agreement and was to pay annual installments of $15,000

until the balance was paid in full.

In an effort to collect the settlement money over the course of several years,

HUD sent a payment invoice and a series of demand letters to a Topeka, Kansas

address which had been listed as Andersen’s billing address for the installment

payments. Andersen’s attorney replied in June 1988 that Andersen’s companies had

surrendered their assets and were unable to make the payments. In a subsequent letter

copying Andersen, his attorney offered to settle the unpaid debt for a lesser amount,

stating that Andersen “would like to avoid protracted litigation and to get the matter

settled and put to rest.” HUD continued to seek the amount Andersen owed it under

the agreement by sending demand letters to Andersen and his attorney. Andersen

contends that he thought the installment payments had been made and denies

receiving any communication from HUD about the money owed.

After these unsuccessful attempts to recover the sums owed, HUD initiated

debarment proceedings against Andersen in 1990 to prevent him from procuring

future federal government contracts. HUD sent Andersen a notice that it was

proposing debarment and informing him that he had a right to a hearing before a final

1

The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri.

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determination was made. It sent the notice on August 31, 1990 by certified mail to a

P.O. box in Kansas City, Missouri which belonged to Andersen's company. HUD

states that this was Andersen’s last known address since it was the address on file with

the Missouri Secretary of State as Andersen’s “residence address” and the place where

he conducted business as the chairman of a company. See 24 C.F.R. §

24.105(1)(1990) (debarment notice must be sent to party's last known address).

Several weeks later HUD received a return receipt card verifying delivery signed by

Georgine Sell, an officer in Andersen’s company.

On November 21, 1990 HUD sent Andersen a final determination of debarment

by certified mail to the same Kansas City address. The letter stated that because

Andersen had not requested a hearing within the 30 day period specified in the prior

notice, debarment was effective under 24 C.F.R. § 24.214(g) (1990). HUD received

a signed return receipt card for this letter as well. Andersen’s name and the names of

his companies were then placed on a public list of federally debarred contractors.

Andersen now asserts that he did not receive the letters sent to him by HUD and

did not learn of the debarment until 2009. He states that he continued to perform work

for the federal government “in various capacities” and had invested some $200,000

in an agricultural project in Kurdistan before he was informed by the United States

Trade and Development Agency that he had been debarred. 

Andersen brought this action against HUD in 2010 in federal district court

seeking a declaratory judgment that the debarment was invalid and an injunction

against its enforcement. He claimed that the debarment was invalid because of its

indefinite length and because it had been issued without adequate notice in violation

of due process. HUD moved to dismiss the action, citing the six year statute of

limitations for civil actions against the United States. See 28 U.S.C. § 2401(a). The

district court dismissed the complaint as time barred, concluding that Andersen’s

claim had accrued in 1990 because that is when he either knew or should have known

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of the debarment. Andersen appeals, arguing that he is "not constrained by time

limitations" because the debarment was void for lack of notice or alternatively that the

statute of limitations should be equitably tolled.

We review de novo the district court’s grant of a motion to dismiss. See Crooks

v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009). Civil actions against the United States

must be filed “within six years after the right of action first accrues.” 28 U.S.C. §

2401(a). For purposes of § 2401(a) a claim accrues “when the plaintiff either knew,

or in the exercise of reasonable diligence should have known, that [he or she] had a

claim.” Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 751, 759 (8th Cir.

2009) (citation omitted).

The district court properly concluded that Andersen's claim accrued in 1990.

During that year HUD sent Andersen certified mailings notifying him of the

debarment proceedings. The notices were directed to his business address and their

receipt was signed by agents or officers of his company. The address where the

notices were sent had been registered with the Missouri Secretary of State as

Andersen's "residence address" and the headquarters of a business for which Andersen

was chairman of the board. A reasonably diligent person would have checked the

mail at the address registered with the Secretary of State and would also have verified

that the required settlement payments had been made during the five years preceding

the debarment. Given the actions taken to notify Andersen, a reasonably diligent

person would have become aware of the debarment proceedings in 1990. See id.; cf.

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (notice

satisfies due process requirements when it is “reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action").

Andersen also seeks tolling of the limitations period which expired in 1996. 

Equitable tolling is not available in suits against the government involving “garden

variety claim[s] of excusable neglect,” or when the “claimant failed to exercise due

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diligence in preserving his legal rights.” Irwin v. Dep’t of Veterans Affairs, 498 U.S.

89, 96 (1990). Andersen’s claim that he did not receive notice despite HUD’s

repeated attempts to contact him at known addresses is at best a “garden variety claim

of excusable neglect” that is not eligible for tolling. Id.

Accordingly, the judgment of the district court is affirmed.

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