" Pl. Op. Ex. B. However, the Federal Circuit has held that "[b]y linking the limitations period to receipt by the contractor, the CDA eliminates disputes about . . . the internal mail procedures of various contractors." Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991). This holding applies to the internal mail procedures of a contractor's representatives as well. As a result, although we will take into consideration the policies regarding fax delivery at counsel's firm, insofar as these policies are relevant, we will focus our inquiry on the date of receipt, and not on mail handling procedures.
The Federal Circuit has interpreted receipt by the contractor to mean "actual physical receipt of that decision by the contractor [or his representative]." Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991) (quoting Pathman Constr. v. United States, 817 F.2d 1573, 1577 (Fed. Cir. 1987)). "[O]bjective indicia of receipt by the contractor" must be shown to establish the date of proper delivery of the decision by the contracting officer.
. Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 220 (3d Cir. 2005) (quoting Lacey v. Cessna Aircraft Co., 923 F.2d 170, 187 n.15 (3d Cir. 2015)). In this situation, the court must apply the โlaw of the state having the most significant contacts or relationship with the particular issue.โ Id.
This suggests that the statute and its requirements should be strictly construed. See, e.g., Borough of Alpine v. U.S., 923 F.2d 170, 172 (Fed. Cir., 1991) (refusing to read into CDA exceptions to time limits and tolling provisions not authorized by Congress);see also, Gregory Lumber Co. v. United States, 229 Ct.Cl. 762, 763 (1982) (citation omitted). In general, failure to exhaust is not excused where it is statutorily mandated.
Receipt by the contractor means "actual physical receipt of that decision by the contractor." Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991) (quoting Pathman Constr. Co. v. United States, 817 F.2d 1573, 1577 (Fed. Cir. 1987). "`[O]bjective indicia of receipt by the contractor' must be shown to establish the date of proper delivery of the decision by the contracting officer."
In one line of cases, the Federal Circuit has found that the timeliness of a claim is not a matter of subject matter jurisdiction, but is instead an element of the claim addressed under RCFC 12(b)(6). See Venture Coal Sales Co. v. United States, 370 F.3d 1102, 1105 n. 2 (Fed. Cir. 2004) (affirming dismissal of the case for failure to file within the statute of limitations period under 28 U.S.C. ยง 2501, but noting that the proper ground for dismissal is failure to state a claim, not lack of subject matter jurisdiction); Ariadne Fin. Services Pty. Ltd. v. United States 133 F.3d 874, 878 (Fed. Cir. 1998) (affirming dismissal of the case on statute of limitations grounds under 28 U.S.C. ยง 2501, but stating "that the question of a time bar on [plaintiff's] claim does not affect the subject matter jurisdiction of the Court of Federal Claims"); Borough of Alpine v. United States, 923 F.2d 170, 170 n. 1 (Fed. Cir. 1991) (affirming dismissal of the case for failure to file a timely appeal under the Contract Disputes Act, but noting that the untimeliness of the appeal does not remove the court's subject matter jurisdiction over the case); Bray v. United States, 785 F.2d 989, 992 (Fed. Cir. 1986) (affirming dismissal of the case for failure to file within the six-year statute of limitations period under 28 U.S.C. ยง 2401(a), but noting that the untimeliness of the claim did not remove the court's subject matter jurisdiction);see also Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687 (Fed. Cir. 1992) (affirming dismissal of the case on other grounds, but critiquing the MSPB's dismissal on statute of limitations grounds, stating "[t]o conclude in such a case that the petitioner loses because the forum is `without jurisdiction' is to obscure the nature of the defect. It would be more accurate to conclude that the petitioner has failed to prove the necessary elements of a cause for which relief could be gr
of limitations, not a jurisdictional limit on the Court of Federal Claims. See Venture Coal Sales Co. v. United States, 370 F.3d 1102, 1105 n. 2 (Fed. Cir.2004) ("The most precise ground for the trial court's decision here therefore would seem to be that Venture Coal failed to make its claim within the required limitations period โ that is not a question of subject matter jurisdiction of the" Court of Federal Claims); Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d 874, 878 (Fed. Cir.1998) ("the question of a time bar on [plaintiffs] claim does not affect the subject matter jurisdiction of the Court of Federal Claims"); Henke v. United States, 60 F.3d 795, 798 n. 3 (Fed. Cir. 1995) ("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"); Borough of Alpine v. United States, 923 F.2d 170, 171 n. 1 (Fed. Cir. 1991) (despite an untimely filing the "Claims Court has and will continue to have jurisdiction over the subject matter of Contract Disputes Act cases"). The Supreme Court has, in several recent statements, emphasized that statutes of limitations and time prescriptions are not "jurisdictional."
Ariadne's untimeliness can, however, bar its eligibility to invoke that jurisdiction. See Borough of Alpine v. United States, 923 F.2d 170, 171 n. 1 (Fed. Cir. 1991). In the contract at issue, the government promised SoCal the use of supervisory goodwill in partial satisfaction of its minimum regulatory capital requirement.
The cases relied on by the government as illustrating special rigor because the government is a party turned on issues unrelated to the expiration of a filing period on Saturday, Sunday, or a holiday. In Borough of Alpine v. U.S., 923 F.2d 170, 172 (Fed. Cir. 1991), the question was whether receipt by an employee of the contractor, in the circumstances of that case, constituted receipt by the contractor to start the twelve-month limitations period. Placeway Construction Corp. v. United States, 713 F.2d 726, 727 (Fed. Cir. 1983) involved a 120-day deadline that ended on a Friday, not a weekend or holiday.
Plaintiff fails on both issues, election of forum and the applicable 12-month, CDA statute of limitations. Prior to Arctic Slope, addressing 41 U.S.C. ยง 609(3), the Federal Circuit in Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991), stated, "Congress has set the twelve-months limit, and this court cannot and should not read into it exceptions and tolling provisions Congress did not contemplate or authorize." (citing Gregory Lumber Co. v. United States, 229 Ct. Cl. 762, 763 (1982)).