United States Court of Appeals 

for the Federal Circuit 

__________________________ 

FLOORPRO, INC., 

Plaintiff-Appellee, 

v. 

UNITED STATES, 

Defendant-Appellant. 

__________________________ 

2011-5116 

__________________________ 

Appeals from the United States Court of Federal 

Claims in case no. 09-CV-651, Senior Judge Loren A. 

Smith. 

______________________ 

Decided: May 31, 2012 

_______________________ 

JAMES S. DELSORDO, Argus Legal, LLC, of Manassas, 

Virginia, argued for plaintiff-appellee. 

DOMENIQUE KIRCHNER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

defendant-appellant. With her on the brief were TONY 

WEST, Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and BRYANT G. SNEE, Deputy Director. Of 

counsel on the brief was PAMELA J. NESTELL, Senior Trial 

Attorney, Naval Litigation Office, Office of the General 
FLOORPRO INC v. US 2

Counsel, United States Department of the Navy, of Washington, DC. 

__________________________ 

Before PROST, MAYER, and WALLACH, Circuit Judges. 

MAYER, Circuit Judge. 

The United States appeals a judgment of the United 

States Court of Federal Claims awarding FloorPro, Inc. 

(“FloorPro”) damages for breach of a government contract. 

See FloorPro, Inc. v. United States, 98 Fed. Cl. 144 (Fed. 

Cl. 2011) (“Federal Claims Decision II”); FloorPro, Inc. v. 

United States, 94 Fed. Cl. 775 (Fed. Cl. 2010) (“Federal 

Claims Decision I”). Because FloorPro’s suit was filed 

outside of the six-year limitations period set out in 28 

U.S.C. § 2501, its claim is time-barred. We therefore 

vacate and remand with instructions to dismiss for lack of 

jurisdiction. 

BACKGROUND

On February 6, 2002, the United States Navy 

awarded Contract No. N62467-02-M-2013 to G.M. & W. 

Construction Corporation (“GM&W”) for the installation 

of floor coating in several warehouse bays at a military 

base. GM&W subsequently entered into a subcontracting 

agreement with FloorPro, pursuant to which FloorPro 

agreed to perform the floor-coating work for a sum of 

$37,500.00. FloorPro completed the work on February 27, 

2002, and promptly submitted an invoice to GM&W. 

On March 8, 2002, the Navy informed GM&W that 

the floor-coating work had been completed satisfactorily. 

On April 17, 2002, FloorPro contacted the Navy’s contracting officer, stating that it had not been paid by 

GM&W. The contracting officer then contacted GM&W to 

inquire why FloorPro had not been paid for the floor-
3 FLOORPRO INC v. US

coating work. GM&W informed the contracting officer 

that there were several claims pending against it, and 

that it was not sure whether any funds that the Navy 

directly deposited into its bank account would be available to pay FloorPro. Accordingly, on April 22, 2002, the 

Navy and GM&W entered into a contract modification 

(“Modification P00001”), which provided that the Defense 

Finance and Accounting Service (“DFAS”) would not pay 

GM&W directly, as required by the original contract, but 

would instead pay for the floor-coating work by issuing a 

hard-copy, two-party check payable to GM&W and FloorPro. Modification P00001 further provided that the Navy 

would mail the check directly to FloorPro. 

Notwithstanding Modification P00001, on July 17, 

2002, the DFAS paid GM&W directly by an electronic 

fund transfer to its bank account. On July 18, 2002, the 

contracting officer informed FloorPro that DFAS had 

“ignored” Modification P00001 and “did not issue the twoparty check as [Modification P00001] had directed.” 

FloorPro responded by sending a letter, dated July 23, 

2002, asking the contracting officer “[w]hat exactly is 

being done by [the Navy] to process a payment to us for 

our work?” On August 9, 2002, Captain B.M. Scott, a 

Navy acting commander, sent FloorPro a letter confirming that the government had paid GM&W in full on the 

contract. Scott asserted that “[a]s the Government does 

not possess privity of contract with FloorPro, Inc., or any 

other subcontractor,” payment to GM&W had “fulfill[ed] 

the extent of the Government’s obligations” under the 

contract. Scott informed FloorPro that its only recourse 

was to seek payment “from GM&W through the civil court 

system.” Scott stated, moreover, that GM&W’s failure to 

pay FloorPro “ha[d] been referred to the Naval Criminal 

Investigative Service for investigation.”
FLOORPRO INC v. US 4

On December 5, 2002, FloorPro submitted a claim to 

the Navy’s contracting officer, asserting that the Navy 

had failed to pay it for the floor-coating work it had performed. Two weeks later, the contracting officer wrote 

FloorPro a letter stating that she could not issue a final 

decision on its claim because the government did “not 

have a contract with FloorPro.” 

On March 27, 2003, FloorPro filed an action against 

the Navy at the Armed Services Board of Contract Appeals (“ASBCA”). Relying upon this court’s decision in 

D & H Distributing Co. v. United States, 102 F.3d 542, 

546-48 (Fed. Cir. 1996), the ASBCA determined that it 

had jurisdiction over FloorPro’s claim because FloorPro 

was a third-party beneficiary of the contract between the 

Navy and GM&W. See In re FloorPro, Inc., No. 54143, 

2007 ASBCA LEXIS 38, at *31-36 (June 27, 2007). It 

determined, moreover, that FloorPro was entitled to 

damages of $37,500, plus interest, for the government’s 

breach of Modification P00001. Id. at *36. 

On appeal, this court reversed. See Winter v. FloorPro, Inc., 570 F.3d 1367 (Fed. Cir. 2009). We held that 

under the Contract Disputes Act of 1978 (“CDA”), 41 

U.S.C. §§ 7101-7109, the ASBCA has no jurisdiction over 

a claim brought by a subcontractor who is a third-party 

beneficiary of a contract between the government and the 

prime contractor. Winter, 570 F.3d at 1371-73. We 

explained that the CDA applies only to “contractors,” and 

parties—such as subcontractors—who are not in privity of 

contract with the government generally have no right to 

“avail themselves of the CDA’s appeal provisions.” Id. at 

1370-71 (citations and internal quotation marks omitted). 

We observed, however, that the grant of jurisdiction to the 

Court of Federal Claims under the Tucker Act, 28 

U.S.C. § 1491(a)(1), “is broader” than the jurisdiction of 

the ASBCA under the CDA, and can potentially extend to 
5 FLOORPRO INC v. US

an intended third-party beneficiary of a government 

contract. Winter, 570 F.3d at 1372; see D & H Distrib., 

102 F.3d at 546-48 (concluding that a third-party beneficiary of a government contract had the right to enforce a 

contract provision in the Court of Federal Claims). 

On October 2, 2009, FloorPro filed suit against the 

government in the Court of Federal Claims. The government moved for summary judgment, arguing that FloorPro’s claim was time-barred because it was filed more 

than six years after it first accrued. In response, FloorPro 

argued that its claim did not accrue until October 5, 2004, 

“at which time the Navy filed a brief at the [ASBCA] 

contending that FloorPro had no enforceable rights under 

[Modification P00001].” Federal Claims Decision I, 94 

Fed. Cl. at 778. FloorPro asserted “that until October 5, 

2004, the Government had not refused to enforce the 

Modification, and not until the Government’s brief was 

filed did the Navy assert that the Modification would not 

be honored.” Id. 

The Court of Federal Claims agreed with FloorPro 

that “the facts and the law” supported an October 5, 2004 

accrual date for its claim. Id. The court determined, 

however, that it should not resolve the timeliness question “solely base[d] . . . on which date [was] proper to start 

the running of the statute of limitations.” Id. Because 

FloorPro “did not sleep on its rights,” but instead had 

diligently pursued its claim by filing suit at the ASBCA, 

the court concluded that barring FloorPro’s claim as 

untimely would “lead to an unjust result.” Id. at 779. 

The court determined, moreover, that FloorPro was an 

intended third-party beneficiary of Modification P00001 

and that it was entitled to damages of $37,500 for the 

government’s breach of that provision. See Federal 

Claims Decision II, 98 Fed. Cl. at 147-48. The government then filed a timely appeal with this court. 
FLOORPRO INC v. US 6

DISCUSSION

“Whether the Court of Federal Claims possesses jurisdiction over a claim is a question of law subject to de

novo review.” Navajo Nation v. United States, 631 F.3d 

1268, 1272 (Fed. Cir. 2011). Every civil action against the 

United States is barred unless the complaint is filed 

within six years of the time a right of action first accrues. 

28 U.S.C. § 2501. This six-year limitations period is 

jurisdictional and may not be waived or tolled. John R. 

Sand & Gravel Co. v. United States, 552 U.S. 130, 136-39 

(2008); see Young v. United States, 529 F.3d 1380, 1384 

(Fed. Cir. 2008) (“[T]he statute of limitations applicable to 

Tucker Act claims . . . is jurisdictional and not susceptible 

to equitable tolling.”); Martinez v. United States, 333 F.3d 

1295, 1316 (Fed. Cir. 2003) (en banc) (“It is well established that statutes of limitations for causes of action 

against the United States, being conditions on the waiver 

of sovereign immunity, are jurisdictional in nature.”); 

Hopland Band of Pomo Indians v. United States, 855 F.2d 

1573, 1576-77 (Fed. Cir. 1988) (“The 6-year statute of 

limitations on actions against the United States is a 

jurisdictional requirement attached by Congress as a 

condition of the government’s waiver of sovereign immunity and, as such, must be strictly construed.”). 

Because FloorPro’s claim was filed more than six 

years after it accrued, the Court of Federal Claims was 

without jurisdiction to consider it. In general, a cause of 

action against the government accrues “when all the 

events have occurred which fix the liability of the Government and entitle the claimant to institute an action.” 

Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir. 

2006) (citations and internal quotation marks omitted). 

The issue of “whether the pertinent events have occurred 

is determined under an objective standard; a plaintiff 

does not have to possess actual knowledge of all the 
7 FLOORPRO INC v. US

relevant facts in order for the cause of action to accrue.” 

Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 

1995). 

FloorPro’s cause of action accrued when the government breached Modification P00001 by making payment 

directly to GM&W, rather than sending a two-party check 

to FloorPro as the modification required. See Franconia 

Assocs. v. United States, 536 U.S. 129, 141 (2002) (explaining that claims seeking damages for breach of contract generally accrue at the time of the breach); Kinsey v. 

United States, 852 F.2d 556, 557 (Fed. Cir. 1988) (emphasizing that a cause of action for breach of a government 

contract generally accrues when payment is due but 

wrongfully withheld). FloorPro became aware of the 

breach no later than August 9, 2002, when the Navy 

informed FloorPro that: (1) it had paid GM&W directly for 

the floor-coating work; (2) it believed that it had fulfilled 

the extent of its contract obligations; and (3) FloorPro’s 

only recourse was to seek payment “from GM&W through 

the civil court system.” Thus, no later than August 2002, 

FloorPro knew not only that the Navy had paid GM&W 

directly, but that the government believed that it had 

fulfilled all of its obligations under the contract and would 

not make any payment to FloorPro. At this point, FloorPro had “a complete and present cause of action,” Bay 

Area Laundry & Dry Cleaning Pension Trust Fund v. 

Ferbar Corp., 522 U.S. 192, 201 (1997) (citations and 

internal quotation marks omitted), and all events necessary to fix the alleged liability of the government for the 

failure to comply with Modification P00001 had occurred. 

Because FloorPro did not file its complaint in the Court of 

Federal Claims until October 2, 2009, more than six years 

after its claim accrued, its action is time-barred.

FloorPro argues that its cause of action did not accrue 

until October 5, 2004, when the government filed its brief 
FLOORPRO INC v. US 8

in the ASBCA proceedings. It asserts that while it “knew 

that the Government had paid GM&W directly in violation of Modification P00001, the Government did not 

repudiate the terms of the modification” until the government filed its brief with the ASBCA. We do not find 

this reasoning persuasive. FloorPro knew long before the 

government filed its brief in the ASBCA proceedings that 

the government had “repudiate[d]” Modification P00001. 

As noted above, the Navy’s August 2002 letter stated that 

it had fulfilled all of its obligations under the contract by 

making payment directly to GM&W and that FloorPro’s 

only recourse was to seek payment “from GM&W through 

the civil court system.” This letter was an unequivocal 

refusal to pay FloorPro under the terms of Modification 

P00001, which required the Navy to issue a hard-copy, 

two-party check payable to both GM&W and FloorPro and 

to send the check to FloorPro. Indeed, the complaint 

FloorPro filed with the ASBCA in April 2003 specifically 

alleged that the Navy had breached Modification P00001 

by making payment directly to GM&W. We reject, therefore, FloorPro’s assertion that it was unaware that the 

Navy had repudiated Modification P00001 until the 

government filed its October 5, 2004 brief with the 

ASBCA. 

We likewise reject FloorPro’s contention that equitable tolling can be applied to defer the running of the 

limitations period. FloorPro argues that its claim should 

be deemed timely because it diligently pursued its claim 

and acted reasonably in initially filing suit at the ASBCA, 

rather than in the Court of Federal Claims. It asserts, 

moreover, that nothing in the Supreme Court’s decision in 

Sand & Gravel “specifically bars the application of equitable tolling.” We disagree. Sand & Gravel makes clear 

that section 2501 sets forth an “absolute” time limit for 

filing suit in the Court of Federal Claims. 552 U.S. at 
9 FLOORPRO INC v. US

135; see Young, 529 F.3d at 1384. Because section 2501’s 

time limit is jurisdictional, the six-year limitations period 

cannot be extended even in cases where such an extension 

might be justified on equitable grounds. 

CONCLUSION

Accordingly, the judgment of the United States Court 

of Federal Claims is vacated and the case is remanded 

with instructions to dismiss for lack of jurisdiction. 

COSTS

No costs. 

VACATED AND REMANDED