United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted March 27, 2020 Decided June 19, 2020

No. 19-7010

UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF 

AMERICAN CIVIL CONSTRUCTION, LLC,

APPELLEE

v.

HIRANI ENGINEERING & LAND SURVEYING, PC,

APPELLEE

COLONIAL SURETY COMPANY,

APPELLANT

Consolidated with 19-7011, 19-7015

Appeals from the United States District Court

for the District of Columbia

(No. 1:14-cv-00745)

Michael C. Delaney and Laurence Schor were on the joint 

briefs for appellants/cross-appellees. 

Herman M. Braude was on the briefs for appellee/cross 

appellant.
2

Before: HENDERSON, ROGERS and GARLAND, Circuit 

Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: American Civil Construction, 

LLC, (“ACC”) the subcontractor on a U.S. Army Corps of 

Engineers (“Corps”) flood protection project, sued the prime 

contractor, Hirani Engineering & Land Surveying, P.C.,

(“Hirani”) for breach of contract and the providers of Hirani’s 

payment bond, Colonial Surety Company (“Colonial”), under 

the Miller Act, 40 U.S.C. § 3133, for unpaid labor and 

materials. Following a bench trial, the district court entered 

judgment in favor of ACC and awarded damages against both 

defendants. Hirani and Colonial appeal, and ACC cross 

appeals. Among the challenges to the judgment, Colonial 

contends that ACC’s lawsuit was untimely under the Miller 

Act’s one-year statute of limitations, pointing to the Corps’ 

April 26 letter terminating Hirani. But the Federal Acquisition 

Regulations may render the effective date of Hirani’s 

termination to be later. Because the district court expressly 

declined to make some relevant findings, the court will remand

the case without deciding whether the accrual of the Miller Act 

cause of action stems from the termination of the Prime 

Contract or the Subcontract. Otherwise, the court affirms the 

award of restitution against Hirani and defers ruling on other 

issues raised by the parties.

I.

In 2010, the Corps awarded Hirani a $3,833,097 contract

(the “Prime Contract”) to build the “Washington, D.C. and 

Vicinity, Local Flood Protection Project, 17th Street Closure 

Structure” (the “Project”). See U.S. ex rel. Am. Civil Constr., 

LLC v. Hirani Eng’g & Land Surveying, P.C., 345 F. Supp. 3d 
3

11, 22 (D.D.C. 2018) (“Hirani II”), ⁋⁋ 4–9. Under the Prime 

Contract, Hirani was to build a levee flood wall designed to 

prevent the Potomac River from flooding across the National 

Mall into downtown Washington, D.C. Id. ⁋ 4. The contract 

anticipated that the Project would be completed within one 

year, by October 12, 2011. Id. ⁋ 10. The contract also required

Hirani to obtain a surety bond and it did so from Colonial in 

the amount of $3,833,097. Id. ⁋⁋ 11–12. A few months later, 

the Corps issued Option 1, which required Hirani to install 

stone cladding on the levee wall and increased the contract 

price by $641,369. Id. ⁋ 57.

On April 4, 2011, Hirani and ACC entered into a written

Subcontract for $2,845,600, pursuant to which ACC would 

perform the “entire scope of work” of the Project, except for

management, quality control, and the installation of some

specified metal structures and panels. Id. ⁋⁋ 13, 16–19. The 

Subcontract provided that if a “dispute, controversy, or 

question” arose about its interpretation, ACC would not stop 

working until the dispute or controversy was resolved. Id. ⁋ 21 

(alteration omitted). 

The Project was beset by delays. Briefly, delays were 

attributable to Hirani’s procrastination, change orders by the 

Corps, bad weather, a misalignment between structural and 

architectural drawings, and work stoppages due to the National 

Cherry Blossom Festival. Id. ⁋⁋ 50–78.

By letter of April 26, 2013, the Corps terminated Hirani

for default. Id. ⁋ 92. The district court found that Hirani was 

at fault for the termination. Id. ⁋⁋ 95–96. The Corps explained 

that it had “little confidence” that Hirani would finish the 

Project because Hirani had not taken the steps needed to 

improve its progress, work had stalled since March 22 “due to 

subcontractor management and nonpayment issues,” Hirani
4

“had not submitted periodic progress schedules” and Hirani 

had failed to “fulfill commitments to meet milestone deadlines 

necessary for completing the remainder of the Prime Contract.” 

Id. ⁋ 93 (alterations omitted). Hirani responded by letter of 

April 30, 2013, rejecting the termination and requesting a 

meeting. Id. ⁋ 99. That same day, Ed Hollander, ACC’s field

superintendent for the Project, learned that the Corps had

terminated Hirani. Id. ⁋⁋ 67, 98. The following day, May 1, 

Hirani told Hollander that ACC must continue working on the 

Project because it (Hirani) was fighting the termination. Id.

⁋ 100. In accordance with Hirani’s direction, ACC backfilled

an excavated grass area on May 1. Id. ⁋ 102. The following 

day, May 2, Hirani directed ACC to immediately stop working 

on the Project. Id. ⁋ 104. 

The district court expressly declined to find when Hirani 

received the Corps’ termination letter. Id. ⁋ 92 n.5. It did find 

that the ACC crew did not work on the Project site on Saturday, 

April 27 or Sunday, April 28, and heavy rains prevented work

on Monday, April 29 and Tuesday, April 30. Id. ⁋ 97. But the 

district court did not make a finding of fact whether ACC 

supplied materials during this time, and it declined to decide if 

work performed by Ed Hollander or fencing and cleanup work 

performed by ACC between April 29 and May 1 were 

compensable under the Subcontract. (Having found that ACC 

last performed compensable work on May 1, the district court 

noted it “therefore need not consider [ACC’s] alternative 

arguments that work performed by Ed Hollander on the Project 

site between April 29, 2013, through May 1, 2013, as well as 

fencing work and cleanup performed by ACC during that time 

period are compensable tasks under the Subcontract and thus 

occurred within the one-year limitations period.”) Id. at 40 n.8. 

ACC filed suit against Hirani and Colonial on April 29, 

2014. In a second amended complaint, ACC requested $2.07 
5

million in damages from each defendant. Colonial 

counterclaimed, alleging among other things that ACC had 

breached the Subcontract by failing to perform and caused 

Colonial to incur substantial costs. 

The district court denied Hirani and Colonial’s motion for 

summary judgment. See U.S. ex rel. Am. Civil Constr., LLC v. 

Hirani Eng’g & Land Surveying, P.C., 263 F. Supp. 3d 99, 101 

(D.D.C. 2017) (“Hirani I”). Following a five-day bench trial, 

the district court concluded that Colonial’s counterclaims

failed because it had not shown that ACC breached the 

Subcontract. See Hirani II, 345 F. Supp. 3d at 39. On ACC’s 

Miller Act claim against Colonial, the district court found that 

ACC’s lawsuit was timely because it was filed within one year 

of the last compensable work ACC had performed under the 

Subcontract. Id. at 43. And the court found that “Hirani 

breached the Subcontract by refusing to pay ACC for the work 

that it performed.” Id. The court therefore entered judgment 

on the breach of contract claim in favor of ACC, id., and

directed the parties to brief how damages should be calculated,

id. at 56.

The district court awarded $1,544,957.29 in quantum 

meruit damages on ACC’s Miller Act claim against Colonial, 

plus more than half a million dollars in prejudgment interest. 

U.S. ex rel. Am. Civil Constr., LLC v. Hirani Eng’g & Land 

Surveying, P.C., No. 14-CV-00745 (APM), 2019 WL 162019, 

at *3 (D.D.C. Jan. 10, 2019) (“Hirani III”). On ACC’s contract 

claim against Hirani, the district court construed ACC’s request 

for quantum meruit damages as seeking restitution because 

Hirani had breached a written contract. Id. Citing the 

RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST 

ENRICHMENT to conclude that performance-based restitution 

must be limited by expectancy under the contract, the district 

court awarded $425,319.50 in restitution damages, plus nearly 
6

$150,000 in prejudgment interest, inasmuch as ACC had 

already been paid over $2.5 million for its work. Id. at *4–5.

II.

Hirani and Colonial appeal. In their joint brief, they

contend that the district court erred in interpreting the Miller 

Act, arguing that ACC was not entitled to recover any damages 

because ACC failed to bring its Miller Act claim within one 

year after the last day ACC performed compensable work on 

the Project. They also contend that the district court erred by 

awarding quantum meruit damages because breach of contract 

damages could be calculated, by inadequately explaining the 

damages award, by allowing double recovery to ACC, and by 

admitting documents containing hearsay. 

ACC cross appeals, contending that it was entitled to 

Miller Act damages for the services performed by Ed 

Hollander, its field superintendent, and to quantum meruit

damages against Hirani. 

A.

The court reviews de novo the district court’s denial of 

summary judgment and itsstatutory interpretation. See Validus 

Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1042 (D.C. 

Cir. 2015); Draim v. Virtual Geosatellite Holdings, Inc., 522 

F.3d 452, 455 n.3 (D.C. Cir. 2008). “Findings of fact, whether 

based on oral or other evidence, must not be set aside unless 

clearly erroneous, and the reviewing court must give due regard 

to the trial court’s opportunity to judge the witnesses’ 

credibility.” Fed. R. Civ. P. 52(a)(6); see also United States v. 

AT&T, Inc., 916 F.3d 1029, 1033 (D.C. Cir. 2019). 
7

In enacting the Miller Act, Congress sought to “place[] 

subcontractors to government contractors on substantially 

equal footing with subcontractors to private contractors” by 

providing them with a security interest. See U.S. ex rel. Heller 

Elec. Co. v. William F. Klingensmith, Inc., 670 F.2d 1227, 1232 

(D.C. Cir. 1982). “The Miller Act, like [its predecessor,] the 

Heard Act, is highly remedial in nature” and therefore “is 

entitled to a liberal construction and application in order 

properly to effectuate the Congressional intent to protect those 

whose labor and materials go into public projects.” Clifford F. 

MacEvoy Co. v. U.S. ex rel. Calvin Tomkins Co., 322 U.S. 102, 

107 (1944). The Miller Act requires government contractors 

to obtain both a performance bond to protect the government

and a payment bond to protect “all persons supplying labor and 

material in carrying out the work provided for in the contract.” 

40 U.S.C. § 3131(b). The Act also provides that a 

subcontractor who is not paid by the contractor may file an 

action on the Payment Bond:

Every person that has furnished labor or material in 

carrying out work provided for in a contract for which 

a payment bond is furnished under section 3131 of 

this title and that has not been paid in full within 90 

days after the day on which the person did or 

performed the last of the labor or furnished or 

supplied the material for which the claim is made may 

bring a civil action on the payment bond for the 

amount unpaid at the time the civil action is brought 

and may prosecute the action to final execution and 

judgment for the amount due.

Id. § 3133(b)(1). But Miller Act claims must be brought within 

a one-year statute of limitations: “An action brought under this 

subsection must be brought no later than one year after the day 

on which the last of the labor was performed or material was 
8

supplied by the person bringing the action.” Id. § 3133(b)(4)

(emphasis added). 

Neither the Supreme Court nor this court have addressed

when a Miller Act cause of action accrues. Upon canvassing 

federal district and appellate court cases, the district court 

observed that the “courts have taken three approaches in 

determining when the statute of limitations begins to run on a 

claim under the Miller Act.” Hirani I, 263 F. Supp. 3d at 109. 

The majority of courts had held that only labor and materials 

furnished for the original contract (as opposed to corrective or 

repair work performed after final inspection) were “labor” or 

“materials” for purposes of the statute of limitations. Id. at 

109–10. Other courts had held that the statute of limitations 

began to run when the contract was substantially completed. 

Id. at 110. And a third group of courts had “applied a multifactor analysis” to determine when the statute of limitations 

began to run. Id. This court need not resolve the Miller Act 

issue at this time.

The district court, considering the approaches in light of 

the text of the Miller Act and its broad remedial purpose, 

concluded that in order to avoid engaging in a “subjective linedrawing exercise,” it would “simply look to the contract to 

determine” the tasks for which “the parties agreed the 

subcontractor would be compensated, then determine the last 

date on which the subcontractor supplied materials or labor for 

one of those tasks.” Id. at 110–11 (citing U.S. ex rel. GE 

Supply v. C & G Enters., Inc., 212 F.3d 14, 17–18 (1st Cir. 

2000)). The district court rejected Colonial’s proposed 

interpretation, under which the last labor performed or 

materials supplied before the April 26 date of the Corps’ 

termination letter triggered the statute of limitations. Id. at 

111–12. The court reasoned that the “relevant contract” under

§ 3133(b)(1) was “the subcontract — the contract that 
9

obligated the prime contractor to secure a bond under Section 

3131.” Id. at 111. Upon reviewing conflicting evidence and 

making credibility determinations, the court found that ACC 

last worked on the Project on May 1, 2013. Hirani II, 345 F. 

Supp. 3d at 31, ⁋⁋ 101–02. Therefore, ACC’s Miller Act claim 

was timely because it was filed on April 29, 2014, which was 

within a year of when ACC last furnished labor and materials 

for the Project. Id. at 43.

B.

On appeal, Colonial renews its position, contending that

the district court misinterpreted when the Miller Act’s statute 

of limitations is triggered. Because the one year limitations 

period begins to run on the last day that the subcontractor 

carried out work provided for in the bonded contract, Colonial 

maintains that cannot be after the bonded contract (here, the 

Prime Contract) has been terminated and so ACC’s suit was 

untimely. In Colonial’s view, ACC’s last day of work was 

April 26, 2013, the day Colonial asserts that the Corps 

terminated the Prime Contract. For its part, ACC 

acknowledges, but offers nothing to defend, the district court’s 

interpretation of the Miller Act. Rather than explaining how it 

thinks the statute should be interpreted, ACC contends only

that Colonial’s position is unsupported, relying primarily on 

the factual argument that the Prime Contract was not 

terminated on April 26. 

“The statute of limitations is an affirmative defense that 

[a] defendant must prove.” Firestone v. Firestone, 76 F.3d 

1205, 1210 (D.C. Cir. 1996). Here, even assuming for the sake 

of argument that Colonial’s interpretation of when the Miller 

Act claim accrues is correct, Colonial has not carried its burden 

to prove that the last day ACC performed labor or supplied 

materials under the Prime Contract was prior to April 29, 2013. 
10

Contrary to Colonial’s assertion, it is far from “undisputed that

. . . the Government terminated the Prime Contract on April 26, 

2013.” See Appellants’ Br. at 26. Although the Corps’

termination letter was indeed dated April 26, that is not the end 

of the inquiry.

The Federal Acquisition Regulations require that the 

government’s notice of termination include the “effective date 

of termination.” 48 C.F.R. § 49.102(a)(2). The Corps’

termination purported to be “effective immediately.” See 

Hirani I, 263 F. Supp. 3d at 106. The applicable regulations

provide, however, that “[i]f the contractor receives the 

termination notice after the date fixed for termination, then the 

effective date of termination means the date the contractor 

receives the notice.” 48 C.F.R. § 2.101. The district court 

expressly declined to find when Hirani received the Corps’ 

termination letter. See Hirani II, 345 F. Supp. 3d at 30, ⁋ 92 

n.5. Not until April 30 did Hirani attempt to reject the Corps’ 

termination by letter or ACC learn through its field 

superintendent Hollander that Hirani been terminated. Thus, 

the record is consistent with Hirani having received the 

termination letter — and hence the Prime Contract being 

terminated — on any of the five days spanning April 26 to 30.

The court need not resolve the disagreement over when 

ACC’s Miller Act claim accrued because, depending on further

factual findings by the district court upon remand, “[i]f we do 

not decide it now, we may never need to.” Nat’l Treasury 

Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 

1996); cf. VanderKam v. VanderKam, 776 F.3d 883, 888–89 

(D.C. Cir. 2015). For instance, if Hirani received the Corps’ 

termination letter of Friday, April 26, 2013, on Monday or 

Tuesday, April 29 or 30, and ACC furnished labor or materials

on those days, then ACC’s lawsuit (which was filed on April 

29 of the following year) is timely regardless whether the 
11

Miller Act’s statute of limitations is tied to the Prime Contract 

or the Subcontract. On the other hand, if Hirani received the 

termination letter on April 26, 27, or 28, then the interpretation 

of the Miller Act will determine whether ACC’s suit was 

timely. Given that timeliness may turn on the unresolved 

factual questions of when the Prime Contract was terminated

and whether ACC performed labor or supplied materials on 

that day, the court need not reach a novel issue of statutory 

interpretation. Rather, it suffices to remand the case to the 

district court for additional fact-finding, where Hirani and 

Colonial, as proponents of the statute of limitations defense,

will bear the burden of showing that Hirani received the 

termination letter before Monday, April 29 or that ACC 

performed no labor and supplied no materials on April 29 and 

30.

Deferring a decision on the statutory question is

particularly appropriate given the lack of helpful authority cited 

by the parties. Colonial argues that United States ex rel. T.M.S. 

Mechanical Contractors, Inc. v. Millers Mutual Fire Insurance

Co. of Texas, 942 F.2d 946, 953 (5th Cir. 1991), establishes

that a subcontractor cannot recover on the payment bond for 

work performed after the government terminates the prime 

contract. But the statute of limitations was not at issue in that 

case; instead, that case concerned whether the subcontractor 

could recover on the payment bond for costs it incurred due to

the termination. See id. In addition, Colonial relies upon

United States ex rel. American Bank v. C.I.T. Construction Inc. 

of Texas, 944 F.2d 253, 256 (5th Cir. 1991), for the proposition 

that the Miller Act cause of action accrued when the prime 

contract was terminated. But in that case, unlike here, the 

government had not terminated the prime contract, and thus the 

discussion of the statute of limitations is dictum having little 

persuasive value. See id. Furthermore, in a case not cited by 

any party, the Ninth Circuit held that the statute of limitations
12

was not triggered until the prime contractor terminated the 

agreement with its subcontractor. See U.S. ex rel. Pippin v. J.R. 

Youngdale Constr. Co., 923 F.2d 146, 150 (9th Cir. 1991). In 

sum, the authority that the parties have presented to the court 

is of little aid in resolving a novel statutory question.

Therefore, the court remands the case to the district court 

to make findings of fact as to when the Prime Contract was 

terminated and whether ACC performed labor or supplied 

material on April 29 and/or April 30. In the event that Colonial 

and Hirani cannot meet their burden to show that ACC’s Miller 

Act claim was untimely, then this court can resolve the parties’ 

other Miller Act contentions: those by Hirani and Colonial that 

quantum meruit damages were improper, that ACC obtained 

double recovery, and that admitting documents containing 

hearsay was an abuse of discretion, and that by ACC that Ed 

Hollander’s services were compensable. To the contrary, if 

Hirani and Colonial show that termination occurred before

April 29 or that ACC performed no labor or supplied no 

material on April 29 or 30, the court can then address the Miller 

Act statute of limitations issue.

III.

On cross appeal, ACC contends that it was entitled to 

quantum meruit relief totaling more than $2 million against 

Hirani, instead of the restitution damages that the district court 

awarded. The court affirms the award of restitution damages 

to compensate ACC for the services it provided to Hirani.

Damage awards are “findings of fact governed by Federal 

Rule of Civil Procedure 52(a), which will not be disturbed 

unless clearly erroneous.” Bucheit v. Palestine Liberation 

Org., 388 F.3d 346, 350 (D.C. Cir. 2004) (internal quotations 

omitted). That said, “an appellate court has the ‘power to 
13

correct errors of law, including those that may infect a so-called 

mixed finding of law and fact, or a finding of fact that is 

predicated on a misunderstanding of the governing rule of 

law.’” United States v. Castle, 825 F.3d 625, 635 (D.C. Cir. 

2016) (quoting Bose Corp. v. Consumers Union of 

U.S., Inc., 466 U.S. 485, 501 (1984)). 

The parties and the district court assumed that District of 

Columbia law applies to ACC’s breach of contract cause of 

action against Hirani, as will this court. Hirani III, 2019 WL 

162019, at *3 n.3; see also Ideal Elec. Sec. Co. v. Int’l Fid. Ins. 

Co., 129 F.3d 143, 147 (D.C. Cir. 1997). Three terms, as 

defined by D.C. law, are pertinent: quantum meruit, unjust 

enrichment, and restitution. First, “[q]uantum meruit may refer 

to either an implied contractual or a quasi-contractual duty 

requiring compensation for services rendered.” TVL Assocs. v. 

A & M Constr. Corp., 474 A.2d 156, 159 (D.C. 1984). A 

plaintiff’s “request for quantum meruit . . . is a measure of 

damages and not a legal theory of recovery.” Fred Ezra Co. v. 

Pedas, 682 A.2d 173, 176 (D.C. 1996) (internal quotation 

omitted). Second, “[u]njust enrichment occurs when a person 

retains a benefit . . . which in justice and equity belongs to 

another.” Harrington v. Trotman, 983 A.2d 342, 346 (D.C. 

2009) (quoting Jordan Keys & Jessamy, LLP v. St. Paul Fire 

& Marine Ins. Co., 870 A.2d 58, 63–64 (D.C. 2005)). Unjust 

enrichment is an equitable claim that typically lies when there 

is not a valid contract between the parties. See Falconi-Sachs 

v. LPF Senate Square, LLC, 142 A.3d 550, 556 (D.C. 2016); 

see also In re APA Assessment Fee Litig., 766 F.3d 39, 45–46 

(D.C. Cir. 2014). Third, “[a]lthough the phrases restitution

and quantum meruit are sometimes used interchangeably in 

regard to the measure of recovery, since both refer to unjust 

enrichment, restitution is properly limited to recovery where 

there is an express contract.” Lee v. Foote, 481 A.2d 484, 486 

n.4 (D.C. 1984). “[A]n action for restitution is an alternative 
14

remedy to an action for damages when there has been a 

repudiation or material breach of the contract.” Ingber v. Ross, 

479 A.2d 1256, 1263 (D.C. 1984). Thus, “[r]estitution is 

available [under D.C. law] for partial performance by a 

plaintiff of services under an express contract which has been 

breached by a defendant.” Lee, 481 A.2d at 486; see also 

Harrington, 983 A.2d at 347–48.

ACC contends that the district court “ignored the election 

made by ACC to seek restitution (quantum meruit) based on 

the reasonable value of the performance without regard to the 

limitations of the contract.” Appellee’s Br. at 67. It relies on 

W.F. Magann Corp. v. Diamond Manufacturing Co., 775 F.2d 

1202 (4th Cir. 1985), several articles written by its own 

counsel, and, in reply, Blake Construction Co. v. C.J. Coakley 

Co., 431 A.2d 569 (D.C. 1981). ACC does not explain why the 

ability of the subcontractor in W.F. Magann Corp. to recover 

in quantum meruit on its Miller Act claim provides a basis to

displace the district court’s conclusion that D.C. law does not 

allow ACC to recover in quantum meruit on its contract claim. 

And in Blake, the D.C. Court of Appeals allowed the 

subcontractor to recover damages for delay despite a 

contractual clause prohibiting such damages because the delays 

were due to the contractor’s “active interference” with the 

contract, although the court declined to distinguish between 

contract and quantum meruit theories of recovery because the 

result was the same. Blake Constr. Co., 431 A.2d at 578–79, 

579 n.8. Here, by contrast, ACC points to no finding of active 

interference and, more fundamentally, the theories lead to 

different amounts of damages. In short, ACC has not provided 

the court with any basis to deviate from the principle of D.C. 

law that restitution, not quantum meruit, is the proper remedy 

where there is an express contract between the parties. See Lee, 

481 A.2d at 486. The court therefore affirms the district court’s 

award of contract damages against Hirani.
15

Accordingly, the court remands the case to the district 

court for additional fact-finding on ACC’s Miller Act claim 

against Colonial, affirms the restitution damages award against 

Hirani on ACC’s contract claim, and defers addressing other 

issues raised by the parties.