Menominee Indian Tribe of Wisconsin v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2009 Decided July 30, 2010

No. 09-5005

MENOMINEE INDIAN TRIBE OF WISCONSIN,
APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00812-RMC)

Geoffrey D. Strommer argued the cause for appellant.
With him on the briefs was Marsha K. Schmidt.

Donald J. Simon, Arthur Lazarus Jr., and Lloyd B. Miller
were on the brief for amici curiae Arctic Slope Native
Association, et al. in support of appellant.

Donald E. Kinner, Assistant Director, U.S. Department
of Justice, argued the cause for appellee United States of
America. With him on the brief was Jeanne E. Davidson,
Director. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
 2
Before: GINSBURG, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: The district court dismissed the
breach-of-contract claims of a government contractor,
concluding they were barred by the statute of limitations in 41
U.S.C. § 605(a) and the equitable doctrine of laches. For the
reasons set forth below, we reverse the judgment of the
district court and remand for further proceedings consistent
with this opinion.

I.

The Contract Disputes Act of 1978 (CDA), 41 U.S.C.
§§ 601 et seq. (2006), established a comprehensive
framework for resolving contract disputes between executive
branch agencies and government contractors. See id. § 602(a).
In 1994, Congress amended the CDA to require, with one
exception not relevant here, that all claims relating to a
government contract be submitted, within six years of accrual,
to the contracting officer responsible for entering and
administering contracts on behalf of the relevant agency. See
Federal Acquisition Streamlining Act of 1994, Pub. L. No.
103-355, § 2351(a), 108 Stat. 3243, 3322 (codified at 41
U.S.C. § 605(a)).1

1
As amended, section 605(a) of Title 41, titled “Contractor
claims,” reads in relevant part:
All claims by a contractor against the government relating to a
contract shall be in writing and shall be submitted to the
contracting officer for a decision. All claims by the
government against a contractor relating to a contract shall be
the subject of a decision by the contracting officer. Each claim
by a contractor against the government relating to a contract
 3
Once the contracting officer issues a decision on a claim
or is deemed to have denied the claim by failing to issue a
timely decision, see 41 U.S.C. § 605(a), (c), a dissatisfied
contractor has two options. The contractor may, within ninety
days, appeal the decision to the board of contract appeals for
the relevant agency. Id. § 606. Or the contractor may, within
twelve months, file suit in the United States Court of Federal
Claims. Id. § 609(a). Although these two paths are mutually
exclusive, Tuttle/White Constructors, Inc. v. United States,
656 F.2d 644, 648–49 (Ct. Cl. 1981), they converge at the
Court of Appeals for the Federal Circuit, which hears appeals
from both the agency boards and the claims court. 28 U.S.C.
§ 1295(a)(3), (a)(10); 41 U.S.C. § 607(g).

This appeal found its way to our court—and not our sister
circuit—by an unconventional third route, made possible
because the case involves a contract authorized by the Indian
Self-Determination and Education Assistance Act (ISDEAA).
See 25 U.S.C. §§ 450 et seq. The ISDEAA permits Indian
tribes to assume responsibility for federally funded programs
or services that a federal agency would otherwise provide to
the tribes’ members. See id. §§ 450b(j), 450f(a). After the

and each claim by the government against a contractor
relating to a contract shall be submitted within 6 years after
the accrual of the claim. The preceding sentence does not
apply to a claim by the government against a contractor that is
based on a claim by the contractor involving fraud. The
contracting officer shall issue his decisions in writing, and
shall mail or otherwise furnish a copy of the decision to the
contractor. The decision shall state the reasons for the decision
reached, and shall inform the contractor of his rights as
provided in this chapter. Specific findings of fact are not
required, but, if made, shall not be binding in any subsequent
proceeding.
41 U.S.C. § 605(a) (emphasis added).
 4
tribe and agency memorialize the transfer of authority in a
“self-determination contract,” they negotiate annual funding
agreements, which become part of the contract. Id. § 450l(c)
(subsection (f)(2) of model agreement). Though self-
determination contracts are governed by the CDA, id.
§ 450m-1(d), the ISDEAA allows a tribe to bring an action
arising under its contract in the district court rather than the
Court of Federal Claims. Id. § 450m-1(a). The tribe exercised
that option in this case.

The parties to the contract at issue are the Menominee
Indian Tribe of Wisconsin and the Indian Health Service
(IHS), the agency tasked with administering federal health
programs for American Indians. Pursuant to a contract with
IHS, Menominee has for many years operated a healthcare
program for its members. The tribe alleges that the IHS has
failed to pay all the “contract support costs” (reasonable
administrative expenses and the like) to which it was
statutorily entitled for the 1995 to 2004 contract years. Id.
§ 450j-1(a)(2) (obligating agencies to reimburse tribes’
contract support costs). Menominee submitted its claims to
the IHS contracting officer on September 7, 2005. After the
contracting officer denied the claims in their entirety,
Menominee timely filed this action for breach of contract in
the district court.

The government filed a motion to dismiss for lack of
subject-matter jurisdiction and for failure to state a claim. The
district court lacked jurisdiction over the claims for 1996,
1997, and 1998, the government contended, because
Menominee had not filed those claims with the contracting
officer until after the six-year limitations period in the CDA
had expired. Because that deadline does not apply to
“contracts awarded prior to October 1, 1995,” 48 C.F.R.
 5
§ 33.206, the government argued that the tribe’s claim for
1995 was barred by laches.

Menominee did not disagree that it filed its claims for
1996 to 1998 more than six years after their accrual, but
argued that the limitations period should be tolled. The tribe’s
argument relied on the fact that in 1999 two other tribes filed
a putative class action on behalf of all Indian tribes “that were
not fully paid their contract support cost needs, as determined
by IHS,” under a self-determination contract. Cherokee
Nation of Okla. v. United States, 199 F.R.D. 357, 360 (E.D.
Okla. 2001) (quoting Notice of Filing Revised Proposed
Notice of Class Action). The district court in that case
eventually denied class certification. Id. at 366. Menominee
contended that it fell within the class described in the
Cherokee complaint and that, under the doctrine of class-
action tolling, the limitations period was suspended for two
years while asserted members of the Cherokee class awaited
the certification decision. In the alternative, Menominee
asserted that principles of equitable tolling similarly excused
the lateness of its claims. If either tolling theory was correct,
the tribe’s claims for 1996 to 1998 would not be time-barred.
Menominee also disputed that laches barred its claim for
1995.

The district court dismissed the claims for 1995 to 1998.
See Menominee Indian Tribe of Wisc. v. United States, 539 F.
Supp. 2d 152 (D.D.C. 2008). The court rejected Menominee’s
class-action tolling theory on the ground that “presentment to
the contracting officer is a mandatory jurisdictional
requirement and was not timely performed by the Tribe for its
1996–1998 claims.” Id. at 154 n.2 (citation omitted). The
court also declined to equitably toll the filing deadline,
reasoning that “[s]tatutory time limits are jurisdictional in
nature, and courts do not have the power to create equitable
 6
exceptions to them.” Id. at 154. With respect to the claim for
1995, the district court held that laches applied because the
tribe’s “11-year delay in bringing suit [was] nearly double the
time allowed under the statute of limitations,” id., and caused
the government economic prejudice, id. at 154–55.

After the district court dismissed the tribe’s remaining
claims, Menominee appealed the dismissal of its claims for
1995 to 1998. We have jurisdiction under 28 U.S.C. § 1291.

II.

We first consider the timeliness of Menominee’s claims
for 1996 to 1998, which are subject to the statute of
limitations in 41 U.S.C. § 605(a). Menominee missed its
deadline but argues that the limitations period should be
tolled. The government argues that the limitations period is
jurisdictional and therefore cannot be tolled, equitably or
otherwise. We disagree that the limitations period is
jurisdictional but agree with the government’s alternative
argument that class-action tolling is unavailable in this case.
Nevertheless, we conclude that the limitations period in
§ 605(a) is subject to equitable tolling in appropriate cases
and remand for the district court to consider whether it would
be proper here. Our conclusions regarding the availability of
class-action and equitable tolling under § 605(a) are the same
as those reached by the Federal Circuit in Arctic Slope Native
Ass’n v. Sebelius, 583 F.3d 785 (Fed. Cir. 2009), cert. denied,
No. 09-1172 (U.S. June 28, 2010), which issued after the
parties filed their briefs in this appeal.

A. Jurisdiction

The district court treated the six-year deadline in § 605(a)
as jurisdictional. Menominee, 539 F. Supp. 2d at 154. This
was error. Filing deadlines, statutory or not, are generally
 7
nonjurisdictional. See John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 133 (2008); Day v. McDonough, 547
U.S. 198, 205 (2006); Scarborough v. Principi, 541 U.S. 401,
413–14 (2004); see also Carlisle v. United States, 517 U.S.
416, 434 (1996) (Ginsburg, J., concurring) (“It is anomalous
to classify time prescriptions, even rigid ones, under the
heading ‘subject matter jurisdiction.’” (footnote omitted)).
The time limit in § 605(a) is no exception.

“Subject matter jurisdiction defines the [tribunal’s]
authority to hear a given type of case.” Carlsbad Tech., Inc. v.
HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009). The Supreme
Court has distinguished between prescriptions that may be
“properly typed ‘jurisdictional,’” Scarborough, 541 U.S. at
414, and those better classified as “claim-processing rules,”
id. at 413. A claim-processing rule may serve to inform a
plaintiff of the time he has to file a claim, Kontrick v. Ryan,
540 U.S. 443, 456 (2004), or to “protect a defendant’s case-
specific interest in timeliness,” John R. Sand, 552 U.S. at 133,
but it “does not reduce the adjudicatory domain of [the]
tribunal,” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs
& Trainmen Gen. Comm. of Adjustment, Cent. Region (Union
Pacific), 130 S. Ct. 584, 596 (2009). See also Dolan v. United
States, No. 09-367, ___ S. Ct. ___, ___ (2010) (slip op. at 4)
(noting that a claim-processing rule “do[es] not limit a
[tribunal’s] jurisdiction, but rather regulate[s] the timing of
motions or claims”).2

2
In dismissing for lack of subject-matter jurisdiction, the district
court implicitly concluded that the time limitation in § 605(a)
demarcates the jurisdiction of the reviewing court, not only the
jurisdiction of the contracting officer. Our holding that the time
limit is not jurisdictional eliminates the need for us to doubt the
district court’s conclusion. In any event, the distinction between
jurisdictional requirements and claim-processing rules applies. See
 8
The different treatment of claim-processing rules and
jurisdictional requirements has significant effects on the scope
of authority held by adjudicatory tribunals. Claim-processing
rules “typically permit [tribunals] to toll the limitations period
in light of special equitable considerations,” John R. Sand,
552 U.S. at 133, and their protection can be “forfeited if the
party asserting the rule waits too long to raise the point.”
Kontrick, 540 U.S. at 456; see, e.g., Eberhart v. United States,
546 U.S. 12, 19 (2005) (per curiam); Wilburn v. Robinson,
480 F.3d 1140, 1144–46 (D.C. Cir. 2007). But a tribunal “has
no authority to create equitable exceptions to jurisdictional
requirements,” Bowles v. Russell, 551 U.S. 205, 214 (2007),
and litigants cannot by waiver or forfeiture confer jurisdiction
where it is otherwise lacking, see United States v. Cotton, 535
U.S. 625, 630 (2002); S. Cal. Edison Co. v. FERC, 603 F.3d
996, 1000 (D.C. Cir. 2010).

Whether a statutory time limit or other prerequisite to suit
is jurisdictional is “discerned by looking to the condition’s
text, context, and relevant historical treatment.” Reed
Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1246 (2010). We
begin by considering whether Congress “clearly state[d]” the
limitation should “rank . . . as jurisdictional.” Arbaugh v. Y &
H Corp., 546 U.S. 500, 516 (2006). If so, our inquiry is over.
Id. at 515–16. If, on the other hand, the limitation “lacks a
clear jurisdictional label,” we then ask whether the structure
of the statute or long-standing judicial precedent “compel[s]
the conclusion that . . . it nonetheless impose[s] a
jurisdictional limit.” Muchnick, 130 S. Ct. at 1244.

Union Pacific, 130 S. Ct. at 596–98 (applying the distinction to
rules governing adjudications by an administrative agency). We
note, however, that generally “[a] defect in an agency’s jurisdiction
. . . does not affect the subject matter jurisdiction of the district
court.” Mitchell v. Christopher, 996 F.2d 375, 378 (D.C. Cir. 1993).
 9
The time limit for initiating a claim under the CDA is not
stated in jurisdictional terms. Section 605(a) provides that all
claims by a contractor “shall be in writing”; “shall be
submitted to the contracting officer for a decision”; and “shall
be submitted within 6 years after the accrual of the claim.” 41
U.S.C. § 605(a). The statute does not “refer in any way to . . .
jurisdiction,” Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 394 (1982), so we must turn to its structure and history.

The government asks the court to infer from the structure
of the statutory regime for processing government contract
claims that the limitations period in § 605(a) is jurisdictional.
Specifically, the government argues that tolling the six-year
deadline in § 605(a) would “undermine” 28 U.S.C. § 2501,
Appellee’s Br. at 25, which generally limits the jurisdiction of
the Court of Federal Claims to claims filed within six years of
their accrual. John R. Sand, 552 U.S. at 134–38. It is hard to
see how. Section 2501 does not even apply to claims arising
under the CDA, which instead gives contractors six years to
file a claim with the contracting officer and one year to seek
judicial review of the contracting officer’s decision. Pathman
Constr. Co. v. United States, 817 F.2d 1573, 1580 (Fed. Cir.
1987); see also 41 U.S.C. §§ 605(a), 609(a). Regardless of
whether § 605(a) is tolled, a contractor may have more than
six years after its claim accrues to file suit in the Court of
Federal Claims. See Pathman, 817 F.2d at 1574–75, 1580.
The tolling of the limitations period in § 605(a) simply has no
bearing on § 2501.

Likewise, the historical treatment of the type of limitation
imposed by § 605(a) does not suggest that its six-year filing
deadline is jurisdictional. In John R. Sand & Gravel Co. v.
United States and Bowles v. Russell the Supreme Court
recognized the general rule that time requirements do not
affect subject-matter jurisdiction but concluded that the
 10
particular time limits at issue in those cases were
jurisdictional based on their historical treatment. See John R.
Sand, 552 U.S. at 134–38 (construing 28 U.S.C. § 2501);
Bowles, 551 U.S. at 209–11 (interpreting 28 U.S.C. § 2107
and FED. R. APP. P. 4). In each case, the Court rested its
decision on a line of Supreme Court precedent dating back
more than a century. John R. Sand, 552 U.S. at 134 (citing
Kendall v. United States, 107 U.S. 123 (1883)); Bowles, 551
U.S. at 210 (citing United States v. Curry, 47 U.S. (6 How.)
106 (1848)). Section 605(a) lacks a comparable lineage.
Indeed, it was not until 1994 that Congress enacted any
statute of limitations for submitting claims to contracting
officers. See Federal Acquisition Streamlining Act of 1994,
Pub. L. No. 103-355, § 2351, 108 Stat. at 3322. As originally
enacted, the CDA contained no time limit on the filing of
claims. Pub. L. No. 95-563, § 6(a), 92 Stat. 2383, 2384
(1978). Although government contracts sometimes specified
how long the parties would have to submit their claims, see 41
U.S.C. § 605 note, these contractual deadlines were not
considered jurisdictional, see Do-Well Mach. Shop, Inc. v.
United States, 870 F.2d 637 (Fed. Cir. 1989) (holding that
failure to submit a timely claim is an “affirmative defense”
that “does not oust a tribunal of jurisdiction”); cf. JACK PAUL,
UNITED STATES GOVERNMENT CONTRACTS AND
SUBCONTRACTS 227–28 (1964) (“[I]f the contracting officer
decides the contractor’s claim on the merits without raising
the issue of untimeliness of notice, the notice requirement is
deemed waived.”).

The government also makes a broader argument: that
§ 605(a) “run[s] for the benefit of the Government” and this
type of time limit has “long been considered jurisdictional.”
Appellee’s Br. at 13. The government has it precisely
backwards. Irwin v. Department of Veterans Affairs
established a “general rule” that time limits for suing the
 11
government are presumptively subject to equitable tolling,
498 U.S. 89, 95 (1990), and therefore nonjurisdictional. The
government’s categorical argument that statutes of limitations
running for the benefit of the Government are jurisdictional in
nature lacks merit.

Finally, the government argues that the limitations period
in § 605(a) is jurisdictional because it facilitates
administrative review and promotes judicial efficiency. That
may be so, but such virtues do not make the limitations period
jurisdictional. Many time limitations—including claim-
processing rules—serve “system-related goal[s] such as
facilitating the administration of claims,” John R. Sand, 552
U.S. at 133. A limitations period should not “be ranked as
jurisdictional merely because it promotes important
congressional objectives.” Muchnick, 130 S. Ct. at 1248 n.9.

Because the time limit in § 605(a) is not jurisdictional in
nature, the district court erred in dismissing Menominee’s
claims for lack of subject-matter jurisdiction. We may still
affirm, however, if we conclude that the district court should
have dismissed for failure to state a claim. EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997). Because Menominee failed to meet the filing deadline
and the government has not waived or forfeited its defense of
untimeliness, such a dismissal would be proper unless the
limitations period can be tolled. We now turn to that question.

B. Class-Action Tolling

In American Pipe & Construction Co. v. Utah, the
Supreme Court held “that the commencement of a class
action” will in some cases “suspend[] the applicable statute of
limitations as to all asserted members of the class who would
have been parties had the suit been permitted to continue as a
class action.” 414 U.S. 538, 554 (1974). In this case we
 12
consider whether the time limit for filing an administrative
claim should be tolled under American Pipe when filing that
claim is a jurisdictional prerequisite to participation in the
class action.

A party generally must exhaust administrative remedies
before seeking relief in federal court. See McCarthy v.
Madigan, 503 U.S. 140, 144–45 (1992); see also Myers v.
Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–51 (1938).
That rule “applies to class actions,” in which courts typically
require “exhaustion by at least one member of the class.”
Phillips v. Klassen, 502 F.2d 362, 369 (D.C. Cir. 1974); see,
e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8
(1975). Where exhaustion is a jurisdictional requirement,
however, every class member must exhaust its administrative
remedies. Blackmon-Malloy v. U.S. Capitol Police Bd., 575
F.3d 699, 704–05 (D.C. Cir. 2009); see, e.g., Weinberger v.
Salfi, 422 U.S. 749, 764 (1975).

Menominee contends that the pendency of the Cherokee
class action brought by other Indian tribes against the IHS
tolled the limitations period in § 605(a) for all putative class
members, including Menominee, under American Pipe. At the
same time, Menominee acknowledges that it did not submit
its claims to the contracting officer until after class
certification was denied, and it concedes that the submission
of such a claim is a jurisdictional prerequisite to judicial
review. Appellant’s Br. at 42 n.17.3 It follows that

3
The concession is well taken. The Federal Circuit and the Court of
Claims have long held that the court may not exercise jurisdiction
until the contracting officer either issues a decision on the claim or
is deemed to have denied it. See Bath Iron Works Corp. v. United
States, 20 F.3d 1567, 1578–79 & n.6 (Fed. Cir. 1994); Paragon
Energy Corp. v. United States, 645 F.2d 966, 971 (Ct. Cl. 1981)
(“Absent this ‘claim,’ no ‘decision’ is possible and, hence, no basis
 13
Menominee should have been excluded from the Cherokee
class, had one been certified, because the tribe had not
satisfied the jurisdictional exhaustion requirement. In arguing
otherwise, the tribe relies on cases permitting class-action
tolling of the administrative filing deadlines in Title VII and
the Age Discrimination in Employment Act (ADEA). See
Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1392–93
(11th Cir. 1998) (en banc); Griffin v. Singletary, 17 F.3d 356,
359–61 (11th Cir. 1994); Andrews v. Orr, 851 F.2d 146, 148–
49 (6th Cir. 1988). Those cases are inapposite, however,
because neither Title VII nor the ADEA incorporates a
jurisdictional exhaustion requirement. See Zipes, 455 U.S. at
395 n.11, 397. Also unhelpful is Menominee’s citation to
McDonald v. Secretary of Health & Human Services, 834
F.2d 1085 (1st Cir. 1987), in which all unnamed class
members had already satisfied “the non-waivable
jurisdictional requirement of having presented ‘a claim for
benefits . . . to the Secretary,’” id. at 1092 n.4 (quoting
Mathews v. Eldridge, 424 U.S. 319, 328 (1976)). Accord
Arctic Slope, 583 F.3d at 794 & n.1.

for jurisdiction in this court.”), aff’d, 230 Ct. Cl. 884 (1982). Their
conclusion is confirmed by the structure of the CDA. By its plain
terms, § 8(d) of the Act makes a decision by the contracting officer
a jurisdictional prerequisite to review by the agency board of
contract appeals. 41 U.S.C. § 607(d) (titled “Jurisdiction”).
Section 10, which permits contractors to file a direct action in the
Court of Federal Claims “in lieu of appealing the decision of the
contracting officer . . . to an agency board,” id. § 609(a)(1), is not
similarly framed in jurisdictional terms. Yet the jurisdiction of the
agency boards and the court of claims are clearly coterminous. See
Garrett v. Gen. Elec. Co., 987 F.2d 747, 750 (Fed. Cir. 1993).
Because a decision from the contracting officer or a “deemed
denial” of the claim is a prerequisite to the board’s exercise of its
jurisdiction, it is likewise necessary for the court to act.
 14
Menominee further argues that even if the Cherokee
court could not have exercised jurisdiction over its claims,
class-action tolling of the period for filing an administrative
claim is nevertheless required. In keeping with this court’s
“functional reading of American Pipe,” McCarthy v.
Kleindienst, 562 F.2d 1269, 1274 (D.C. Cir. 1977), we
consider whether tolling under these circumstances would
serve the purposes underlying the class-action tolling
doctrine. We hold that the limitations period for submitting an
administrative claim is not tolled under American Pipe for
asserted class members who, because of their failure to satisfy
a jurisdictional exhaustion requirement, are ineligible to
participate in the class action at the time class certification is
denied.

American Pipe addressed what effect, if any, the timely
filing of a complaint on behalf of an asserted class should
have on the statute of limitations governing the claims of
absent class members—a problem that arises from the delay
between the commencement of the action and the district
court’s determination “whether to certify the action as a class
action” and how to “define the class and the class claims.”
FED. R. CIV. P. 23(c)(1)(B). If the statute of limitations on the
claims of putative class members continued to run in the
meantime, the unnamed plaintiffs would face a choice: act to
preserve their rights (by moving to intervene or join or by
initiating a separate action) or run the risk of forfeiting their
rights if class certification is denied after their claims have
grown stale. The American Pipe Court held that, where a class
is certified, the commencement of the action by the named
plaintiff satisfies the statute of limitations “as to all those who
might subsequently participate in the suit.” 414 U.S. at 551. If
certification is denied, then the limitations period is
suspended between the filing of the class complaint and the
denial of class status. Id. at 554. The tolling rule of American
 15
Pipe permits members of the asserted class to safely await the
certification decision before filing a motion to intervene in the
action brought by the named plaintiff, id., or a separate
lawsuit, Crown, Cork & Seal Co. v. Parker, 462 U.S. 345,
353–54 (1983).

A contrary rule would defeat Rule 23’s objectives of
“efficiency and economy of litigation” by forcing putative
class members to file protective motions to intervene in the
pending action or run the risk of their claims growing stale.
American Pipe, 414 U.S. at 553. “[R]equiring successful
anticipation of the determination of the validity of the class
would breed needless duplication of motions,” the Court
explained, because that determination in some cases turns on
“such subtle factors as experience with prior similar litigation
or the current status of a court’s docket.” Id. at 553–54. The
need for class-action tolling thus rests on the uncertainty of
putative class members regarding whether the court will
certify a class that will protect their interests. If putative class
members knew in advance that a class would not be certified
or that they would be excluded from the class action, there
would be no need for tolling.

We agree with the Federal Circuit that the American Pipe
doctrine does not require courts to toll the time putative class
members have to satisfy a jurisdictional prerequisite to
judicial review when the failure to do so precludes them from
obtaining relief via the class action. See Arctic Slope, 583
F.3d at 797. Until they satisfy the jurisdictional preconditions
to class membership, putative class members have no reason
to anticipate whether or not class certification will be granted
and face none of the uncertainty class-action tolling is meant
to ameliorate. Regardless of whether certification is granted,
every contractor must submit its claim to the contracting
officer. Only once a contractor’s claim is denied by the
 16
contracting officer does the contractor have a choice between
participating in the class or proceeding individually—the
choice with which the class-action tolling doctrine is
concerned. Because Menominee could not have participated
in the Cherokee class action without first presenting a claim to
the contracting officer, the purposes of Rule 23 would not be
advanced by tolling the limitations period in § 605(a). “Where
the rationale for a rule stops, so ordinarily does the rule.”
United States v. Textron Inc., 577 F.3d 21, 31 (1st Cir. 2009)
(Boudin, J.).

Menominee contends that extending class-action tolling
to the time limitation in § 605(a) would advance the goal of
“efficiency and economy of litigation” described by the Court
in American Pipe, 414 U.S. at 553. Unless tolling applies,
Menominee asserts, contractors will be forced to file claims
with the contracting officer “merely to preserve their rights to
participate in [a] proposed class [action].” Appellant’s Br. at
17. Yes and no. It is true that contractors must file
administrative claims in order to participate in a class action
brought under the CDA. But every asserted class member
must submit a claim to the contracting officer because of the
general rule that one cannot obtain relief as a member of a
class action without first satisfying the jurisdictional
prerequisites to judicial review, not because class-action
tolling is inapplicable to § 605(a). Menominee also suggests
that, under our rule, contractors that submit claims to the
contracting officer must then file individual actions or
motions to intervene within twelve months of the contracting
officer’s decision. This argument fails, too. The tribe would
be correct if the time limit for seeking judicial review in § 609
were not subject to tolling under American Pipe, but nothing
in our decision precludes application of class-action tolling to
that deadline.
 17
Menominee further argues that the district court in
Cherokee “conclusively decided the parameters of the
putative class[,] . . . that the Tribe was a member of that
class,” and that the issue “cannot be re-litigated.” Reply Br. at
4–5 & n.1. That argument has no merit. The Cherokee court
denied class certification and therefore never defined a class.
See FED. R. CIV. P. 23(c)(1)(B).

Finally, Menominee contends that class-action tolling
should apply here because the tribe’s failure to present a
timely claim resulted from its reliance upon the Cherokee
class action and arguments the government allegedly made in
the course of that litigation. See Appellant’s Br. at 17; Reply
Br. at 6. But Menominee’s purported reliance on the
pendency of the class action is not germane to the availability
of class-action tolling, which benefits even those “asserted
class members who were unaware of the proceedings brought
in their interest or who demonstrably did not rely on the
institution of those proceedings.” American Pipe, 414 U.S. at
552. The various defenses raised by the government in the
Cherokee litigation similarly have no bearing on the
availability of class-action tolling.

In sum, Menominee advocates extending the benefit of
tolling to all members of the class described by the named
plaintiff, including those jurisdictionally barred from
participation due to their failure to exhaust administrative
remedies. Such a rule would serve only one function:
Permitting plaintiffs who could not have participated in the
class to initiate actions against the government after their
claims have grown stale. Adopting the rule Menominee
advances would not further the objectives of Rule 23 but
rather “invit[e] abuse” of the class device by encouraging
lawyers “to frame their pleadings . . . [to] save members of
the purported class who have slept on their rights.” Crown,
 18
Cork & Seal, 462 U.S. at 354 (Powell, J., concurring)
(quoting American Pipe, 414 U.S. at 561 (Blackmun, J.,
concurring)) (internal quotation marks omitted). We join the
Federal Circuit in holding that class-action tolling is not
available under these circumstances.

C. Equitable Tolling

In the alternative, Menominee argues that the CDA’s six-
year limitations period should be equitably tolled. We agree
that the statute is subject to tolling and remand for the district
court to consider whether tolling is appropriate in this case.

“It is hornbook law that limitations periods are
customarily subject to equitable tolling unless tolling would
be inconsistent with the text of the relevant statute.” Young v.
United States, 535 U.S. 43, 49 (2002) (internal citations and
quotation marks omitted). Indeed “a nonjurisdictional federal
statute of limitations is normally subject to a rebuttable
presumption in favor of equitable tolling.” Holland v. Florida,
No. 09-5327, ___ S. Ct. ___, ___ (2010) (slip op. at 13)
(internal quotation marks omitted). That presumption applies
in litigation against the United States, Irwin, 498 U.S. at 95,
where “the injury to be redressed is of a type familiar to
private litigation,” Chung v. DOJ, 333 F.3d 273, 277 (D.C.
Cir. 2003). Because the time limitation in § 605(a) is
nonjurisdictional and actions for breach of contract are
familiar to private litigation, we must presume that § 605(a) is
subject to equitable tolling. The only question that remains is
whether there is “good reason to believe that Congress did not
want the equitable tolling doctrine to apply.” United States v.
Brockamp, 519 U.S. 347, 350 (1997).

The requirement that all claims “shall be submitted
within 6 years after the accrual of the claim,” 41 U.S.C.
§ 605(a), reads like a run-of-the-mill statute of limitations.
 19
Because this provision was enacted after Irwin established the
presumption in favor of equitable tolling, Congress was on
notice that courts would read § 605(a) to permit tolling unless
it provided otherwise. See Holland, ___ S. Ct. at ___ (slip op.
at 13) (“The presumption’s strength is . . . reinforced by the
fact that Congress enacted [the statute] after th[e] Court
decided Irwin . . . .”). Yet Congress included no “[s]pecific
statutory language” that could be construed to “rebut the
presumption.” John R. Sand, 552 U.S. at 137–38. That silence
is a strong indication that Irwin’s default rule governs. Arctic
Slope, 583 F.3d at 798.

The government argues that § 605(a) is much like the
statute at issue in United States v. Brockamp, in which the
Supreme Court held that the Irwin presumption had been
rebutted even though Congress had not expressly precluded
tolling. Brockamp involved the time limitation for filing
claims for tax refunds. See 26 U.S.C. § 6511. In holding that
Congress did not want the deadline equitably tolled, the Court
relied on several factors including the provision’s “detail, its
technical language, the iteration of the limitations in both
procedural and substantive forms, and the explicit listing of
exceptions,” 519 U.S. at 352, as well as its “unusually
emphatic form,” id. at 350, and the “underlying subject
matter” of tax collection, id. at 352. None of these factors is at
work in § 605(a).

The government describes the CDA as “a detailed,
technical, complex scheme that sets forth precise procedures
and deadlines for the assertion of a claim.” Appellee’s Br. at
31. Be that as it may, the government’s focus on the
regulatory scheme as a whole is misplaced. The Brockamp
Court did not concern itself with the complexity of the Tax
Code taken as a whole, but the complexity of the time
limitations found in § 6511. See 519 U.S. at 350–51. As Irwin
 20
itself illustrates, a fairly complicated regulatory scheme—in
that case Title VII—may nevertheless include a limitations
period that uses “fairly simple language, which one
can . . . plausibly read as containing an implied ‘equitable
tolling’ exception.” Id. at 350. As the Federal Circuit
observed, “[t]he statutory time limitation of section 605(a) is a
simple provision and does not contain technical language.”
Arctic Slope, 583 F.3d at 799.

The Brockamp Court also drew on the several “explicit
exceptions to [the] basic time limits” in § 6511 to conclude
that it would be inappropriate to allow equitable tolling. 519
U.S. at 351. Section 605(a) is similar, the government asserts,
in that it expressly states that its limitations period does not
apply “to a claim by the government against a contractor that
is based on a claim by the contractor involving fraud.” 41
U.S.C. § 605(a). But this exception is easily explained in a
way that does not require us to infer that Congress meant to
preclude equitable tolling. When Congress amended § 605(a)
to add the limitation period, § 604 already imposed a deadline
on the government for claims involving fraud. That deadline
specifies that “[l]iability . . . shall be determined within six
years of the commission of [the contractor’s]
misrepresentation of fact or fraud.” 41 U.S.C. § 604. In
excepting claims involving fraud from the limitations period
in § 605(a), Congress presumably meant only to avoid
implicitly abrogating § 604. There is no reason to think that
the inclusion of an express exception for claims involving
fraud should be read to exclude an implicit exception for
equitable tolling.4

4
The government also argues that tolling the limitations period in
§ 605(a) would undermine the statute of limitations for filing
actions in the Court of Federal Claims, 28 U.S.C. § 2501, which
cannot be equitably tolled, John R. Sand, 552 U.S. at 137. The
 21
We agree with the Federal Circuit that the time limitation
in § 605(a) is subject to equitable tolling. Because the parties
dispute facts relevant to application of the equitable tolling
doctrine, we remand for the district court to determine
whether tolling is appropriate under the circumstances of this
case.

III.

Neither party suggests that Menominee’s claim for 1995
is subject to the CDA’s six-year time limit, which is
inapplicable to “contracts awarded prior to October 1, 1995.”
48 C.F.R. § 33.206. The district court still dismissed
Menominee’s claim for 1995, but it did so based on the
doctrine of laches.

The equitable defense of laches “is designed to promote
diligence and prevent enforcement of stale claims” by those
who have “‘slumber[ed] on their rights.’” Gull Airborne
Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C. Cir.
1982) (quoting Powell v. Zuckert, 366 F.2d 634, 636 (D.C.
Cir. 1966)). Laches “applies where there is ‘(1) lack of
diligence by the party against whom the defense is asserted,
and (2) prejudice to the party asserting the defense.’” Pro
Football, Inc. v. Harjo, 565 F.3d 880, 882 (D.C. Cir. 2009)
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 121–22 (2002)). The district court stated that
Menominee’s “11-year delay in bringing suit is nearly double
the time allowed under the statute of limitations and is
certainly long enough to satisfy the standards under the first
prong of the test for laches.” Menominee, 539 F. Supp. 2d at

government offered a substantially similar argument in favor of
treating the limitations period as jurisdictional, and we reject the
argument here for the same reasons. See supra, at 9.
 22
154. The court also explained that this delay prejudiced the
government because “[f]unding for the 1995 contract year has
long since expired.” Id.

The parties dispute the applicable standard of review.
Menominee urges us to review the dismissal de novo, and the
government advocates review under an abuse-of-discretion
standard. We have observed that “both standards are relevant”
when the district court’s laches determination comes at
summary judgment, Harjo, 565 F.3d at 883, but have not
addressed the standard that governs in an appeal from a
dismissal. We need not determine here whether our review
should be de novo or for abuse of discretion because we
would reverse under either standard. With the following
observations, we remand for the district court to reconsider
the matter.

First, the district court incorrectly calculated the length of
the tribe’s delay. As the government now acknowledges, the
tribe submitted its claim for 1995 “nine years and nine months
after the claims accrued,” Appellee’s Br. at 43, not the eleven
years suggested by the district court. Cf. Gull Airborne, 694
F.2d at 843 (stating that the plaintiff’s delay should be
measured by the “period of time [that] elapses between
accrual of the claim and suit”).

Second, the district court erred in failing to consider the
tribe’s arguments that its delay was reasonable. “[L]aches is
not, like limitation, a mere matter of time,” Holmberg v.
Armbrecht, 327 U.S. 392, 396 (1946), but “attaches only to
parties who have unjustifiably delayed in bringing suit.” Pro-
Football, Inc. v. Harjo, 415 F.3d 44, 49 (D.C. Cir. 2005) (per
curiam) (emphasis added). The doctrine is equitable in nature,
and its application “turns on whether the party seeking relief
‘delayed inexcusably or unreasonably in filing suit,’” not
 23
simply whether the party delayed. Id. (quoting Rozen v.
District of Columbia, 702 F.2d 1202, 1203 (D.C. Cir. 1983)
(per curiam)). On remand, the district court should consider
Menominee’s arguments that it had good reason for not
presenting its claims to the contracting officer sooner.

Third, the district court provided inadequate reasons for
concluding that Menominee’s delay prejudiced the
government. The court offered only the terse observation that
“[f]unding for the 1995 contract year has long since expired.”
Menominee, 539 F. Supp. 2d at 154. This statement appears to
be an endorsement of the government’s assertion in its motion
to dismiss that it was “economically prejudiced” by the delay
because “the appropriations for 1995 have long since lapsed.”
Mot. to Dismiss at 9. In support of that position, the
government cited the Department of the Interior and Related
Agencies Appropriations Act, 1995, Pub. L. No. 103-332, 108
Stat. 2499 (1994), which provided that “[n]o part of any
appropriation contained in this Act shall remain available for
obligation beyond the current fiscal year unless expressly so
provided herein,” id. § 304, 108 Stat. at 2536. The 1995 fiscal
year ended on September 30, 1995. Id. pmbl., 108 Stat. at
2499. Because Menominee’s claim for 1995 did not accrue
until several months later, the relevant appropriations would
have already expired had the tribe filed suit on the day its
claim accrued. We fail to see how the tribe’s delay prejudiced
the government.

We close by noting that “a motion to dismiss generally is
not a useful vehicle for raising the issue [of laches].” 5
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1277, at 644 (3d ed. 2004). But
see, e.g., Love v. Stevens, 207 F.2d 32, 32 (D.C. Cir. 1953)
(per curiam) (affirming a dismissal based “upon plaintiff’s
laches”). Laches may be the “legal cousin” of the statute of
 24
limitations, Daingerfield Island Protective Soc’y v. Babbitt,
40 F.3d 442, 448 (D.C. Cir. 1994) (Wald, J., dissenting), but it
“involves more than the mere lapse of time and depends
largely upon questions of fact.” WRIGHT & MILLER § 1277, at
643. “[A] complaint seldom will disclose undisputed facts
clearly establishing the defense.” Id. at 643–44.

IV.

The dismissal of Menominee’s claims is reversed and the
case is remanded for further proceedings consistent with this
opinion.

So ordered.