You Say “Tomato,” I Say “Tomahto” – Not All Deadlines Are Created Equally – At Least Under the Miller Act
Being a litigator I take deadlines seriously.
Cases can be won or lost by failing to meet deadlines.
But when is a failure to meet a deadline an absolute bar to making a claim and when might it be excusable?
In Air Control Technologies, Inc. v. Pre Con Industries, Inc., Case No. 2:11-cv-02281-PA-SS (June 28, 2013), the 9th Circuit Court of Appeals weighed in on whether a statutory deadline is a DEADLINE or simply a deadline under the Miller Act.
In Air Control Technologies, Inc., Pre Con Industries, Inc. (“PCI”) was the general contractor on a construction project for U.S. Veterans Administration, and subcontracted the HVAC work on the project to Air Control Technologies, Inc. (“ACT”). As required under the Miller Act, PCI furnished a payment bond on the project.
ACT began working on the project in December 2008, and shortly thereafter encountered conditions on the project which made its work more expensive than anticipated. In November 2009, PCI fired ACT when ACT demanded reimbursement for its unanticipated costs. On March 14, 2011, a year and a half after being terminated, ACT filed suit against PCI seeking recovery on the payment bond under the Miller Act.
In response, PCI filed a motion to dismiss, on the ground that the Miller Act requires an action on a payment bond “be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.” The district court agreed, finding that the Miller Act’s one-year deadline was a “jurisdictional requirement,” and because ACT had not filed its action within one year after the last of its labor was performed or material supplied, that the court did not have jurisdiction to hear ACT’s complaint.
The Ninth Circuit Court of Appeals, however, disagreed. The Court, noting that there was an intra-circuit split within the Ninth Circuit about whether the Miller Act’s one-year statute of limitations was a “jurisdictional requirement” or merely a “claim-processing rule,” explained that the U.S. Supreme Court had subsequently set a bright line rule that “unless Congress has ‘clearly state[d]’ that [a] statutory limitation is jurisdictional, ‘courts should treat the restriction as nonjurisdictional in character.'”
This distinction, as to whether a statutory deadline or statute of limitations is a “jurisdictional requirement” or merely a “claim-processing rule,” can be extremely important. If a statutory deadline or statute of limitations is a “jurisdictional requirement,” then it is an absolute deadline and a failure to meet that deadline will prevent a court from having jurisdiction to even hear the case. If, however, a statutory deadline or statute of limitations is merely a “claim-processing rule,” then, while a court may still find that a claim is time-barred, the court will have jurisdiction to hear the case, and to consider whether to enforce the deadline or not, taking into consideration whether the deadline was waived or tolled or if one party is otherwise prevented from enforcing the deadline.
Applying the U.S. Supreme Court’s bright-line rule, the Ninth Circuit found that when enacting the Miller Act, Congress had not clearly stated that its one-year deadline was jurisdictional. “Neither the word ‘courts’ nor ‘jurisdictional’ appears in [42 U.S.C. §3133(b)(4) of the Miller Act], which implies that § 3133(b)(4) is ‘a restriction on the rights of plaintiffs to bring suit, rather than [ ] a limitation on the power of the federal courts to hear the suit.'” Moreover, explained the Court, Section 3133 is not “located in a provision granting federal court jurisdiction over Miller Act claims” and “[t]here is also not a ‘century’s worth of precedent and practice in American courts’ holding that the Miller Act’s statute of limitations is a jurisdictional requirement.” And, finally, explained the Court, the Miller Act is remedial in nature, and “[i]t is unlikely Congress intended the Miller Act’s statute of limitations to be a jurisdictional requirement given the Act’s highly remedial purpose.”
Tomatoes, tomahtos . . . potatoes, potahtos . . . jurisdictional requirements, claims-processing rules . . . deadlines are sometimes just deadlines, but sometimes they’re not, and the distinction can be grave. At least in the Ninth Circuit you still might have a fighting chance if you missed that Miller Act deadline. Of course, I say, the better course, is not to miss that deadline at all.
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