FRANCIS M. ALLEGRA, District Judge.
In this contract case, Ramona Investment Group II (plaintiff) seeks damages under the Tucker Act, 28 U.S.C. § 1491(a)(1), claiming that defendant repudiated its loan agreement with plaintiff, thereby effectuating both a breach of contract and a taking. Defendant has moved to dismiss the complaint, pursuant to RCFC 12(b)(1), asserting that this court lacks subject matter jurisdiction. For the reasons that follow, the court hereby
Only a few facts are necessary in order to provide context.
On or about November 22, 1985,
Over time, the number of 515 program borrowers prepaying their mortgages outpaced the number of new entrants into the program, causing the supply of low-income rural housing to dwindle. In 1988, Congress enacted the Emergency Low Income Housing Preservation Act (ELIHPA), Pub. L. No. 100-242, 101 Stat. 1877 (codified at 42 U.S.C. § 1472), which restricted the prepayment of certain section 515 mortgages. See Tamerlane, Ltd. v. United States, 550 F.3d 1135, 1137 (Fed. Cir. 2008), cert. denied, sub nom. Mullica W. Ltd. v. United States, 557 U.S. 919 (2009); Franconia, 61 Fed. Cl. at 723. ELIHPA directed the FmHA not to accept tenders of prepayments, but instead to seek to negotiate with borrowers by offering various incentives to stay in the 515 program. See Franconia Assocs. v. United States, 536 U.S. 129, 136 (2002); Tamerlane, 550 F.3d at 1137-38; Ramona Inv. Grp.v. United States, 115 Fed. Cl. 704, 705-06 (2014). The prepayment restrictions were extended by Congress through 1989 via the Housing and Community Development Act of 1992 (HCDA), Pub. L. No. 102-550, 106 Stat. 3672 (codified in relevant part at 42 U.S.C. § 1472(c)). See Franconia, 536 U.S. at 135. These statutes had the effect of repudiating the agreements defendant had with Ramona.
On August 6, 2004, plaintiff filed a complaint in this court seeking relief for a breach of contract and just compensation under the Fifth Amendment. In the complaint, plaintiff elected to treat Congress's limitations on prepayment as an anticipatory repudiation, treating a breach of contract as arising on the date that plaintiff would have achieved its option of terminating its loan agreement. Plaintiff indicated its intention to prepay upon the expiration of the restrictive-use clause in its lease agreement.
On October 4, 2006, plaintiff submitted to the FmHA a request to prepay, with an intended prepayment date of July 1, 2007. Upon receipt of this request, the FmHA notified plaintiff of a policy not to process prepayment requests while a lawsuit involving the same property is pending; FmHA indicated that if plaintiff wanted to pursue prepayment, it would have to terminate the lawsuit. Plaintiff chose to comply with the FmHA's policy and, pursuant to RCFC 41(a)(1), voluntarily dismissed the lawsuit, without prejudice, on February 20, 2007. On March 2, 2007, the FmHA acknowledged the dismissal and notified plaintiff that it would begin reviewing its prepayment application. Later, the FmHA required plaintiff to resubmit its application, which plaintiff did on May 24, 2011. On September 17, 2012, the FmHA sent plaintiff an email indicating that it was currently unable to process any requests due to a directive from FmHA's National Office.
On September 28, 2012, plaintiff filed its complaint in this court. On December 7, 2012, defendant filed its answer. On January 23, 2014, defendant filed a motion to dismiss under RCFC 12(b)(1), alleging that Ramona's complaint was untimely. The motion is fully briefed. The court finds oral argument unnecessary.
Deciding a motion to dismiss "starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Compliance Solutions Occupational Trainers, Inc. v. United States, 118 Fed. Cl. 402, 405-06 (2014). Plaintiff must establish that the court has subject-matter jurisdiction over its claims. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Compliance Solutions Occupational Trainers, 118 Fed. Cl. at 406.
Here, that jurisdictional journey begins with 28 U.S.C. § 2501, which provides that "[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501. The six-year limitation in section 2501 is "jurisdictional" and absolute in its terms. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008); Bath Iron Works Corp. v. United States, 20 F.3d 1567, 1572 (Fed. Cir. 1994). This statute of limitation is "an express limitation on the waiver of sovereign immunity [and] may not be waived." Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed. Cir. 1988); see also FloorPro, Inc v. United States, 680 F.3d 1377, 1380-81 (Fed. Cir. 2012); Hart v. United States, 910 F.2d 815, 818-19 (Fed. Cir. 1990); Ewer v. United States, 63 Fed. Cl. 396, 399 (2004).
"Naturally, the date that the six-year period expires depends on the date when it began; in other words, the date when the claim first accrued." Ramona Inv. Grp., 115 Fed. Cl. at 707; see also Holloway v. United States, 60 Fed. Cl. 254, 256 (2004), aff'd, 143 Fed. Appx. 313 (Fed. Cir. 2005), cert. denied, 546 U.S. 876 (2005). Where the cause of action is for a breach of contract, a claim accrues under section 2501 "when `all events have occurred to fix the Government's alleged liability, entitling the claimant to demand payment and sue here for his money.'" Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc), cert. denied, 540 U.S. 1177 (2004) (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966)); see also San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1359 (Fed. Cir. 2011); Bianchi v. United States, 475 F.3d 1268, 1274 (Fed. Cir. 2007); Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1455 (Fed. Cir. 1997). Here, it is undisputed that defendant first denied Ramona's attempt to prepay on July 1, 2007. And, it would appear that that date — when defendant first denied plaintiff's attempt to prepay — is when the claim in question accrued. If that is so, it would appear that the suit in question was timely.
Contrary to defendant's claim, it does not appear that the claim accrued either when the original suit was filed in 2004, or when the first case here was voluntarily dismissed in 2007. Certainly, the latter does not appear to be the case. Contrary to defendant's argument, it is well-accepted that "[t]he effect of a dismissal
Not so, defendant claims, asserting that the filing of a suit based on an anticipatory repudiation is somehow an exception to this rule — that the statute of limitations here continued to run, rendering the complaint here untimely. But, defendant is flatly wrong. In arguing otherwise, it relies on Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990), in which the Supreme Court held that a district court could impose Rule 11 sanctions after the plaintiff voluntarily dismissed an action. But, as Judge Wheeler recently recognized in his Ramona opinion, Cooter & Gell "merely affirmed the well-established rule that courts retain jurisdiction to `consider collateral issues after an action is no long pending.'" Ramona, 115 Fed. Cl. at 708. The Supreme Court "[i]n reality . . . did nothing to limit the nullifying effect of a dismissal on an underlying dispute." Id.
Grasping at straws, defendant finally seeks to persuade the court by making yet another argument (one not made until its reply brief in this case) — to wit, the notion that plaintiff's election of a contractual remedy here had the effect of locking plaintiff into the original statute of limitations, i.e., the one applicable to the 2004 claim. Apparently, defendant argues that once a plaintiff seeks relief under the Tucker Act and then voluntarily dismisses its suit, the Tucker Act option is lost forever. In making this argument, however, defendant cites only a few cases under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101, et seq., such as Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644, 647 (Ct. Cl. 1981) — apparently like ol' Dobbin donning blinders to the obvious fact that this is not a CDA case. More importantly, there is no indication that these cases, and the election doctrine that applies in some CDA cases,
Indeed, defendant offers no rationale why the court should treat plaintiff as having made any election of the sort defendant claims to exist. As Judge Wheeler recognized in Ramona—
115 Fed. Cl. at 708. The court agrees with Judge Wheeler that the result defendant seeks would be "logically incoherent and patently unfair" (a result that should bother defendant, but apparently does not).
Defendant's arguments do not remotely persuade the court to grant defendant's motion. Plaintiff's voluntary dismissal of the 2004 lawsuit had the effect of placing it in the same legal position as if it had never filed the original suit. The statute of limitations did not begin to run in 2007. The current lawsuit was timely filed. The law is clear. Defendant's claims to the contrary are hereby rejected. Id.
The court will not gild the lily. For the reasons stated, the court hereby
115 Fed. Cl. at 708.