Donald A. Henke v. United States

60 F.3d 795, 1995 U.S. App. LEXIS 16847

• Court: Court of Appeals for the Federal Circuit
• Decided: July 12, 1995
• Docket: 19-1630
• Status: Published

Opinions

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 plaintiffs 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. § 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 plaintiffs claim. The basis for the Government’s motion was that plaintiffs 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

Plaintiffs 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 6s 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 ho 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 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 § 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.

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.

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 á 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 clandestinely to Mexico in and of itself completed the purpose of the mission. At the least, reasonable inferences suggest that something more could be expected of the mission. Was there not to be information gained from the route of the flight, identity of participants (other than Henke’s people), or involvement of government agents of the several countries? Was there no desire by U.S. officials to know what in fact occurred, and no obligation on Henke’s part to tell them? ' Is it a reasonable inference that the United States Government wanted to pay $250,000 for nothing other than to move some marijuana from Colombia to Mexico, so it would be closer to the United States? Could Henke have terminated all participation in the mission immediately upon off-loading the marijuana and successfully claimed he had done all that his contract required?

Beyond the sheer logic of the situation, the fact that, after the drop was made, the plane allegedly landed at a United States Air Force base where it was cleared into the country suggests a continuing involvement by agencies of the United States Government during some period after the actual November 14 drop. And the allegation that part of the mission arrangements included the return of the aircraft to Detroit clearly infers some contracted-for set of activities beyond November 14.

Whatever we may believe about Henke’s story, it is clear that as he alleges it the purpose of the operation was to gather information about Colombian and Mexican involvement in drug trafficking into the United States. Simply assisting that traffic by delivering 18,000 pounds of marijuana to the Mexicans seems an unlikely accomplishment of that purpose, and not one for which United States agents would likely agree to pay $250,000. The notion that the operation, whatever it was, in which Henke was involved ended on November 14, 1987, is simply not supportable on the pleadings in the record.

It may be that at trial the Government will prove that in fact that is all there was to the contract. But that is not all that Henke alleges, and on the record before us we must conclude that the cause of action accrued at some date after November 14, 1987, a date not yet ascertained, when all the activities involved in the alleged contract were completed.

3.

Henke offers another reason why his claim is not barred. Even assuming that the Government is correct that the contract as alleged was completed and the cause of action accrued on November 14, 1987, Henke argues that he nevertheless filed timely. Henke filed in the wrong court, an action not peculiar to pro se complainants. Had Henke’s case been transferred by the district court to cure the want of jurisdiction, pursuant to 28 U.S.C. § 1631, the date of filing in the district court would be taken as the date of commencing the action in the Court of Federal Claims. See 28 U.S.C. § 1631 (1988) (“the action or appeal shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was aetually filed in ... the court from which it is transferred.”).

But in this case the district court simply dismissed the suit without ordering a transfer, and 28 U.S.C. § 1631 is not applicable. The issue, then, is whether the failure of the district court to affirmatively transfer the action denies Henke the benefit of the earlier filing date.

Henke argues that, even without statutory compliance, Supreme Court precedent has provided, in similar situations, that the statute of limitations is satisfied by timely filing in the wrong court. He cites Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), and related cases which support that proposition in the context of suits under the Federal Employers Liability Act. In the alternative, Henke argues that, as a matter of equity, his contract claim should be deemed by the Court of Appeals as transferred pursuant to statute to cure want of jurisdiction. In support he cites a recent Ninth Circuit case, Kolek v. Engen, 869 F.2d 1281, 1284 (9th Cir.1989) (Kolek), which did exactly that.

The Government does not directly respond to Henke’s argument based on Burnett, but instead confuses that question, one of whether as a matter of law the earlier filing carries over to the later court, with the question of whether the circumstances of the case call for equitable tolling a-la Irwin. The Government argues that Henke was free to file anew in the Court of Federal Claims; instead of diligently pursuing his rights, Henke waited until his claim was barred; although courts may equitably toll their statutes of limitations for plaintiffs who diligently pursue their rights, Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58, courts are under no obligation to toll the statute for a petitioner who is not diligent.⁴ The Government concludes that Henke was not diligent; the Court of Federal Claims properly dismissed his case as time-barred. All of which is beside the point that Henke argues here.

With regard to Henke’s alternative argument based on Kolek, the Government argues that Kolek is factually distinguishable, and in any event the better procedure would be for Henke to appeal to the Fourth Circuit the failure of the trial court to have ordered a transfer. Of course, the time for pursuing such an appeal has long expired.

Henke’s several arguments for finding that, as a matter of law, his original filing in the district court effectively determined the filing date in the Court of Federal Claims are imaginative, and challenging. The Government’s attempts to avoid the arguments are not very persuasive. After considering the matter fully, however, we conclude that it is not necessary for us to decide these rather far-reaching propositions. Our determination, that the cause of action did not accrue until after the November 14 date, affords Henke complete relief from the statutory bar, relief that would not be any greater were it to be based on the additional grounds he proposes. This makes it unnecessary for us to decide the other issues raised.⁵

CONCLUSION

On the allegations in his complaint, Henke’s claim is not time-barred. In holding to the contrary, the trial court erred. We reverse the dismissal and return the matter to the Court of Federal Claims for further proceedings.

REVERSED AND REMANDED

1 . In his district court complaint Henke included a second count alleging a tort claim for the DEA’s subsequent wrongful conversion of a different plane. This count was not included in the complaint filed in the Court of Federal Claims.

2 . As the court noted in its November 19, 1993 order to show cause, November 14, 1993 fell on a Sunday. Consequently, the date for filing the complaint would extend to Monday, November 15, 1993. See Court of Federal Claims Rule 6(a); Wood-Ivey Systems Corp. v. United States, 4 F.3d 961, 964 (Fed.Cir.1993). Technically, then, the complaint was only one day late.

3 . The bar to a cause of action raised by the statute of limitations is an affirmative defense to the cause. See, e.g., Fed.R.Civ.P. 8(c): "In pleading to a preceding pleading, a party shall set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense." When properly raised, and if found to apply, the running of the statutory period means that the plaintiff is not entitled to a judicial remedy for the alleged wrong. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, Civil 2d § 1270 and n. 29 (1990). The raising of the statutory bar to a remedy does not, as such, deprive the court of jurisdiction to hear the cause in the first instance. Indeed, the court could not adjudicate the question of the proper application of the statute if it did not have subject matter jurisdiction over the claim. See, e.g., 28 U.S.C. § 2501: “Every 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."

4 . This is the only reference in the Government’s brief to Irwin. Its applicability to the jurisdictional issue is not discussed.

5 . The matter before us is here on a motion to dismiss. As noted, we take Henke’s allegations at face value. Admittedly, the story he alleges is beyond the everyday experience of many, including judges. It is not, however, so incredible as to defy belief. For other, similar tales from the Government crypt, see The Big White Lie (Thunder's Mouth Press 1993), by Michael Levine, a former DEA agent and author of an earlier expose entitled Deep Cover: The Inside Story of How DEA Infighting, Incompetence and Subterfuge Lost Us the Biggest Battle of the Drug War (Delacorte Press 1990). See also Peter Dale Scott and Jonathan Marshall, Cocaine Politics (U.Cal.Press 1991); accord, almost any daily edition of a daily paper during the heyday of the Government’s War on Drugs. The dissent would have us judge whether there really was such a contract, and whether it really was agreed to by an authorized Government official. That is what the trial judge will do on remand. Appellate courts do not do that, even if we had a record upon which to do it. We must decline the dissent's invitation to extend our judicial reach beyond its established limits.