Henke v. U.S., 94-5124

• Decision Date: 12 July 1995
• Docket Number: No. 94-5124,94-5124
• Citation: 60 F.3d 795
• Parties: Donald A. HENKE, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 795

60 F.3d 795

Donald A. HENKE, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 94-5124.

United States Court of Appeals Federal Circuit.

July 12, 1995.

George H. Dygert, Dygert & Associates, Charlottesville, VA, argued for plaintiff-appellant.

Martin F. Hockey, Jr., Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendant-appellee. With him on the brief were Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director and Jeanne E. Davidson, Asst. Director.

Before PLAGER and RADER, Circuit Judges, and COWEN, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge PLAGER, with whom Senior Circuit Judge COWEN joins. Dissenting opinion filed by Circuit Judge RADER.

PLAGER, Circuit Judge.

Donald A. Henke appeals from a judgment of the Court of Federal Claims dismissing his suit against the United States as time-barred. Henke v. United States, No. 93-702C (Ct.Fed.Cl. May 10, 1994). We reverse and remand.

BACKGROUND

As the trial court correctly stated, in deciding the Government's motion to dismiss plaintiff Henke's complaint, the court was obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236-37, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974); Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564, 1568-69 (Fed.Cir.1993) ("In reviewing the propriety of this dismissal, we take as true the facts alleged [in the complaint].") (citations omitted).

In his complaint plaintiff alleges that, throughout the time involved, he was a contract pilot for the Federal Drug Enforcement Administration ("DEA"). In June of 1987, DEA officials asked Henke to organize a flight that would carry some 18,000 lbs. of marijuana from Colombia to a landing strip in a dry salt lake in Chihuahua Province, Mexico. The purpose alleged was to provide information that would lead to "arresting a criminal organization involved in narcotics trafficking into the United States." Plaintiff would be paid $250,000, which was to include his expenses and his fee for the service.

Henke alleges that he arranged the mission, which involved: renting a plane, a Douglas DC-6B four engined transport plane, from a firm in Detroit; hiring flight personnel whom he trained to perform the mission; execution of the mission; and returning the plane to the Detroit firm. After five months of preparation, the marijuana was picked up as planned and delivered, on November 14, 1987, to the designated clandestine landing strip in Mexico. The plane was then flown to Laughlin Air Force Base in Del Rio, Texas, where it was cleared and released by Customs for further movement in the United States.

Henke alleges that he thereafter made repeated inquiries about payment from the DEA, finally making a "formal written request" on or about May 15, 1989. No payment was forthcoming. On May 14, 1992, Henke filed, pro se, a complaint in the United States District Court for the Western District of Virginia, alleging his contract and claiming damages of $250,000 for non-payment. ¹ On October 19, 1992, the district court, noting that Henke's contract claim was for more than $10,000, dismissed Henke's suit as beyond the jurisdictional amount for which the court could grant relief. The district court dismissed the suit without prejudice, indicating that such a suit must be filed in the Court of Federal Claims.

On November 16, 1993, still pro se, Henke filed his suit in the Court of Federal Claims, again seeking contract damages of $250,000. The judge, apparently sua sponte, issued a show cause order asking why Henke's claim should not be dismissed as untimely filed.

                See 28 U.S.C. Sec. 2501 (1988), providing that claims over which the Court of Federal Claims has jurisdiction shall be barred unless filed "within six years after such claim first accrues."   Henke responded that he had earlier filed in the district court, and he believed that the district court filing tolled the statute of limitations
                

The Government then filed a motion to dismiss the complaint on the ground that the court lacked jurisdiction over plaintiff's claim. The basis for the Government's motion was that plaintiff's claim was barred by the six year statute of limitations. According to the Government, the delivery of the shipment of marijuana on November 14, 1987, marked the date on which Henke's cause of action accrued. The complaint in the Court of Federal Claims was filed on November 16, 1993, six years and two days later, and thus beyond the six year limit for filing. ²

Plaintiff's response brief argued that the completion date for the contract could not be fixed at the date the marijuana was delivered in Mexico because there were still activities to be accomplished under the contract. He pointed out that "a DEA clandestine air operation was not complete for payment purposes until the After-Action reports and DEA Form 6 § were completed, along with a full debriefing of the air crews and undercover informants." By order dated May 10, 1994, the Court of Federal Claims held that Henke's claim accrued on November 14, 1987, and, finding no reason to equitably toll the statute, the Court of Federal Claims dismissed Henke's suit. Henke appeals to this court.

DISCUSSION

1.

It is difficult for those of us not directly involved in clandestine activity such as that alleged by Henke to imagine the kind and scope of Government contracting of which he claims to have been a part, and for which he claims taxpayers' dollars are owed him. Nevertheless, the issue before us is not whether such a contract should have been, or even was, made, and whether it was or was not performed, but whether he alleged its existence and its terms in a manner that entitles him to his day in court on his claim of breach.

At the outset, we observe that the Government in its brief characterizes the question in this case as one of strict compliance with the statute of limitations, which "is a condition of the United States' consent to suit and, thus, is a condition upon the Court of Federal Claims' jurisdiction ... [T]he Court should strictly construe the application of the statute of limitations." The Government thus casts the matter as one involving sovereign immunity, and not simply one of whether there is an affirmative defense available to the Government based on the statute of limitations. ³

In so doing, the Government neglects to point out that the question of statutory time bars and sovereign immunity is no longer amenable to bright-line rules, and that the historic role of strict construction of sovereign immunity has been thrown into considerable question by recent Supreme Court For the reasons we shall explain, it is unnecessary in this case for us to examine in detail the current state of sovereign immunity doctrine as it applies to statutory time-bars. See Wood-Ivey Systems Corp. v. United States, 4 F.3d 961, 968 (1993) (Plager, J., concurring) for a fuller discussion of this issue. It is enough to note that, given the complex and subtle nature of this inquiry, it is not helpful to a court to have the Government treat it as a simply black-and-white proposition, nor does it enhance the credibility of the Government's position.

decisions. See, e.g., United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 1792 n. 10, 85 L.Ed.2d 64 (1985) (stating that the Court was leaving open the general question of whether principles of equitable tolling, waiver, and estoppel apply against the Government when it involves a statutory filing deadline); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (Irwin ) (holding that the rule of equitable tolling of statutory time bars is applicable to suits against the Government in the same way that it is applicable to private suits). For a discussion of the uneven application of sovereign immunity rules in this area, specifically acknowledged by the Court in Irwin, see 4A Charles A. Wright & Arthur B. Miller, Federal Practice and Procedure Sec. 1163 (1987); see also Cynthia Reed, "Time Limits for Federal Employees Under Title VII: Jurisdictional Prerequisites or Statutes of Limitation?," 74 Minn.L.Rev. 1371 (1990), for an exhaustive treatment of the differing views among the circuits.

2.

We turn first to a key question in the case: based on Henke's allegations, when can it be said his cause of action accrued? "As a general rule, a claim accrues when all events necessary to fix the Government's liability have occurred, e.g., the services have been rendered, thus entitling the contractor to demand payment." L.S.S. Leasing Corp. v. United States, 695 F.2d 1359, 1365 (Fed.Cir.1982), citing Nager Elec. Co. v. United States, 368 F.2d 847, 851, 177 Ct.Cl. 234 (1966). The parties dispute when Henke's performance was complete. Henke alleges that his performance was not complete until he had been debriefed. Flying and unloading the plane was merely the physical activity involved. The Government argues that, in his complaint, Henke states that he delivered the marijuana on November 14, 1987. Therefore, Henke's claim accrued on November 14, 1987, and was time-barred after November 15, 1993.

As noted earlier, we are obligated to accept Henke's version of the facts as he alleges them, and to draw all reasonable inferences in his favor. The fact that he acted pro se in the drafting of his complaint may explain its ambiguities, but it does not excuse its failures, if such there be. The complaint states that he was approached by the DEA to undertake a mission involving flying a load of Colombian marijuana to a clandestine landing strip in Mexico. In the same sentence he goes on to explain that the purpose was the "arresting [of] a criminal organization involved in narcotics trafficking into the United States."

It is difficult to understand how the act of delivering the marijuana...