Court Says Equitable Tolling Does Apply in ISDA Contract Support Cost Dispute

In a contract support claim against the Indian Health Service, the Civilian Board of Contract Appeals’ dismissal of several plaintiffs’ contract claims was affirmed in part and reversed in part by the U.S. Court of Appeals Federal Circuit yesterday. The case involved Arctic Slope Native Association; Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians and the Metlakatla Indian Community.

The Civilian Board of Contract Appeals had dismissed the claims against the IHS on the ground that the appellants had failed to present them to a contracting officer within six years after the claims accrued, as required by section 605(a) the Contract Disputes Act (“CDA”), 41 U.S.C. § 605(a).

The plaintiffs argued that the CDA’s six-year presentment period was subject to equitable tolling. They pointed out that the Supreme Court had delayed all pending contract support litigation while it considered Cherokee Nation v. Leavitt, and that the statute of limitations should not apply to those cases. The Board of Contract Appeals held that the CDA’s presentment period is a jurisdictional requirement that is not subject to tolling, either equitable or legal.

The court held that the six-year presentment period is (emphasis added) subject to equitable tolling and remanded the case to the board to determine whether it satisfies the requirements of the equitable tolling doctrine.

For more information contact richard.phelps@falmouthinstitute.com