Full Opinion

USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 1 of 10 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 26-10601 Non-Argument Calendar ____________________ SOUTHERN EQUIPMENT & SERVICES, LLC, Plaintiff-Counter Defendant-Appellant, UNITED STATES OF AMERICA, for the Use and Benefit of Southern Equipment & Services, LLC, Petitioner, versus WINDAMIR DEVELOPMENT, INC., BERKSHIRE HATHAWAY SPECIALTY INSURANCE COMPANY, Defendants-Counter Claimants-Appellees. ____________________ Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:22-cv-00047-JRH-CLR ____________________ Before ROSENBAUM, GRANT, and ED CARNES, Circuit Judges. USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 2 of 10 2 Opinion of the Court 26-10601 PER CURIAM: This is a government contract case. Those involved are: the United States Army Corps of Engineers (Corps); Windamir Devel- opment, Inc., the general contractor; Berkshire Hathaway Spe- cialty Insurance Company, the surety; and Southern Equipment & Services, LLC (SES), the sub-contractor. The Corps awarded Con- tract No. W912HN-19-C-3001 (the contract) to Windamir, under which it would construct in Fort Stewart, Georgia a facility meant for vehicle paint preparation (the project). Windamir then entered into a subcontract agreement with SES, under which SES was to provide all equipment, materials, tools, labor, certificates, docu- ments, and management necessary to construct an abrasive blast booth system as required for the project. 1 The underlying dispute arose when Windamir didn’t pay SES the last remaining balance and costs that SES contends it is owed under an adjusted subcontract price. SES sued Windamir and Berkshire in federal court, asserting a claim under the Miller Act, 40 U.S.C. §§ 3131–3133, for the amounts it believes it’s owed. 2 SES and the two defendants filed cross-motions for partial summary judgment. The district court concluded that the Miller Act’s statute of limitations barred SES’s claim. And based on that, it granted summary judgment in favor of the defendants. That is 1 This particular blast booth was a $1.4 million blasting facility for military use. 2 SES pleaded other claims in its complaint, but it does not appeal the district court’s judgment on those. USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 3 of 10 26-10601 Opinion of the Court 3 the only part of the district court’s judgment that SES challenges in this appeal. Because we conclude that SES performed labor within one year of filing the lawsuit, we conclude that its Miller Act claim was timely and vacate the part of the district court’s judgment rul- ing to the contrary. I. After the Corps awarded Windamir the contract, Windamir, as general contractor, and Berkshire, as surety, provided the Corps a “payment bond.” See 40 U.S.C. § 3131(b)(2). The law required the bond for the benefit and protection of all individuals “supplying labor and material” in the performance of the project. See id. Then Windamir subcontracted with SES, and according to the terms of their agreement, SES was to be paid to “perform certain work” for the project, including “providing equipment, materials, tools, and labor to construct an abrasive blast booth system.” As part of that subcontract, SES was obligated to provide a training video with au- dio. And the blast booth’s operating procedures include that only trained operators are authorized to operate it and that all operators must have viewed the training video. SES began its work on the project on May 29, 2020. Throughout the time it worked on the project, SES submit- ted periodic invoices to Windamir for payment and provided a schedule that showed the value of the work completed through the date of the payment request. By December 7, 2020, SES had com- pleted all subcontract work except training government personnel on equipment use and “certain testing.” It is undisputed that SES USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 4 of 10 4 Opinion of the Court 26-10601 achieved “substantial completion of its work on December 21, 2020.” In January 2021, SES conducted an in-person training session on how to use the blast booth equipment. Windamir video-rec- orded that training session. But the Corps rejected the video be- cause the audio was inaudible. Windamir then created a punch list of tasks that needed to be completed before the final inspection. 3 SES was working on that list as late as February 16, 2021. The punch list didn’t mention the training video. But after being informed by Windamir’s Quality Control Manager, Pat Edwards, that the Corps had rejected the training video due to poor audio quality, SES went to the project site on March 15, 2021, and refilmed the training video itself; it also addressed two specific items on the punch list. SES did not send Windamir an invoice for any work completed on that day. After March 15, SES completed other punch list tasks and work, such as replacing a pressure gauge and submitting paper- work, which included “drawings and warranties.” SES also contin- ued email correspondence with Windamir, stating that it “re- mained ready, willing, and able to continue to assist in regard” to a possible addition to SES’s scope of work, which would have in- volved the installation of a fire monitoring and suppression system. 3 While the punch list is dated March 10, 2021, it contained a list of all tasks SES had to complete after December 21, 2020, the date SES had achieved sub- stantial completion. USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 5 of 10 26-10601 Opinion of the Court 5 When it came time for Windamir to finish paying up, ac- cording to SES, it didn’t. At least not the amount SES claims it is owed. SES filed this lawsuit on February 22, 2022, against Windamir and its surety Berkshire. As we’ve mentioned, it as- serted, among other things, a Miller Act claim seeking to recover pursuant to the terms of the payment bond the remaining amount due for the work performed but not paid. In their motion for summary judgment, the defendants con- tended that the Miller Act claim was time barred because SES had failed to file its complaint within one year of the last day it per- formed labor or supplied materials for the project. According to the defendants, that date was February 16, 2021, making SES’s law- suit, filed on February 22, 2022, untimely. Any work that SES per- formed after February 16, the defendants contended, constituted “repair” work, which is insufficient to extend the time for a sub- contractor to file a Miller Act claim. The district court granted summary judgment for the defendants, concluding that SES failed to produce evidence that it performed qualifying labor within the statutory one-year timeframe. SES appealed. 4 II. We review de novo a grant of summary judgment. Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293 (11th Cir. 2013). “Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to a 4 Windamir was a party in the district court but is not a party to this appeal. USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 6 of 10 6 Opinion of the Court 26-10601 judgment as a matter of law.” Id. at 1293–94 (quotation marks and ellipses omitted). “An issue of fact is material if it might affect the outcome of the suit under the governing law” and is “genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” W. Grp. Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1360–61 (11th Cir. 1999) (quotation marks omitted). We view all evidence in the light most favorable to the nonmoving party. Ave. CLO Fund, 723 F.3d at 1294. III. The crux of this case is a determination of when the “last of the labor was performed or material was supplied” by SES, at which point the Miller Act’s statute of limitations began to run. 40 U.S.C. § 3133(b)(4). If any of the tasks that SES completed after Feb- ruary 21, 2021, constitutes “labor” under the Miller Act, as SES con- tends, then its complaint was timely and summary judgment im- proper. If it does not, as Berkshire contends, the complaint was un- timely and summary judgment was properly granted against SES. The Miller Act provides a right of civil action to individuals who’ve “furnished labor or material in carrying out work provided for in a contract for which a payment bond is furnished.” 40 U.S.C. § 3133(b)(1); see also United States ex rel. Sherman v. Carter, 353 U.S. 210, 216 (1957) (explaining that the Act was enacted to “protect per- sons supplying labor and material for the construction of federal public buildings in lieu of the protection they might receive under state statutes with respect to the construction of nonfederal build- ings”). But an action under the act “must be brought no later than USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 7 of 10 26-10601 Opinion of the Court 7 one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.” 40 U.S.C. § 3133(b)(4). Generally, repairs, final inspections, and taking final meas- urements in order to provide a final estimate or statement do not qualify as “labor” for purposes of determining when the statute of limitations begins to run. See Gen. Ins. Co. of Am. v. United States ex rel. Audley Moore & Son, 406 F.2d 442, 443–44 (5th Cir. 1969) (Moore & Son I) 5; United States ex rel. Dillon Constr., Inc. v. Cont’l Ins. Co., 776 F.2d 962, 964 (11th Cir. 1985) (“In determining the last day that ‘la- bor’ was performed, repairs made on the original project are not taken into consideration.”). Just because a subcontract requires the completion of a task, that doesn’t automatically make it “labor” ei- ther. See Gen. Ins. Co. of Am. v. United States ex rel. Audley Moore & Son, 409 F.2d 1326, 1327 (5th Cir. 1969) (Moore & Son II). “[L]ast labor” does include, however, work performed “to correct defects in the work as originally completed” when a gov- ernment inspector demands it. Trinity Universal Ins. Co. v. Girdner, 379 F.2d 317, 318 (5th Cir. 1967) (explaining that where a govern- ment inspector refuses to approve the original work, the replace- ment of defective parts constitutes labor for purposes of the statute of limitations); see also Moore & Son II, 409 F.2d at 1327 (distinguish- ing the facts in Trinity where “the inspector refused to approve the 5 Decisions of the former Fifth Circuit handed down on or before September 30, 1981, are binding precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981). USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 8 of 10 8 Opinion of the Court 26-10601 original work unless defective parts were replaced” from the situa- tion before the court where “labor [was] supplied or material fur- nished to correct defects after the work ha[d] been completed”) (emphasis added). What counts as “labor” under the Miller Act depends on the facts of each case. See Ex parte Sw. Sur. Ins. Co., 247 U.S. 19, 20 (1918); S. Steel Co. v. United Pac. Ins. Co., 935 F.2d 1201, 1204 (11th Cir. 1991). And the statute should be given “liberal construction,” in favor of a subcontractor being paid for its services. Trinity Uni- versal Ins. Co., 379 F.2d at 318; see Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107 (1944). The statute is, after all, designed “to protect those whose labor and materials go into public projects.” Clifford F. MacEvoy Co., 322 U.S. at 107; see also United States ex rel. Am. Civ. Constr., LLC v. Hirani Eng’g & Land Surv’ing, PC, 58 F.4th 1250, 1252 (D.C. Cir. 2023) (“The Supreme Court has interpreted the Miller Act broadly in view of its highly remedial nature.”) (quotation marks omitted). The district court relied on other district court decisions to conclude that “repairs that are significant or crucial to the opera- tions or functioning of the project will constitute labor.” But there is the Trinity exception, which extends the limitations deadline for repairs that the government requires as a condition to approving the work. See United States ex rel. Benefit of Light & Power Utilities Corp. v. Liles Const. Co., 440 F.2d 474, 477–78 (5th Cir. 1971). It ap- plies here. USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 9 of 10 26-10601 Opinion of the Court 9 SES submitted as evidence the affidavit of Jim Cerny, “man- aging member” of SES. 6 In Cerny’s sworn statement, he explained that one of the reasons why a video is so “critical” to operator train- ing is because there “is typically high turnover of operators on many military bases.” Training was “crucial” to the project, and therefore an effective video was a “necessary part of SES’s work in order [to ensure] that the equipment c[ould] be safely, efficiently, and effectively operated.” And he explained how he’d been con- tacted on March 9, 2021, by Edwards who had relayed information from the Corps and instructed SES to re-shoot the training video because the government rejected the first one due to poor audio 6 Berkshire contends that Cerny’s affidavit is “conclusory”; insufficient to es- tablish that the video was “crucial” to the project’s operation; and doesn’t count as supporting evidence to create a genuine issue of material fact. But whether the video was crucial to the project’s operation is not the question here. The question is whether the work was required for government ap- proval. And the relevant parts of Cerny’s affidavit are not conclusory. They point to project specifications and the subcontract requiring a training video and include Cerny’s personal experiences. There are enough “specific support- ing facts” to have “probative value.” See generally Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (explaining that a party may not rest on “conclu- sory allegations without specific supporting facts” to defeat a properly sup- ported summary judgment motion). Affidavits are sources of evidence to “support or oppose” a motion for summary judgment. Fed. R. Civ. P. 56(c)(4); see also United States ex rel. v. Mortg. Invs. Corp., 987 F.3d 1340, 1346 (11th Cir. 2021) (“Even self-serving and uncorroborated statements can create an issue of material fact.”); United States v. Stein, 881 F.3d 853, 856 (11th Cir. 2018) (en banc) (“Nothing in Rule 56 prohibits an otherwise admissible affidavit from being self-serving. And if there is any corroboration requirement for an affida- vit, it must come from a source other than Rule 56.”). USCA11 Case: 26-10601 Document: 19-1 Date Filed: 11/02/2026 Page: 10 of 10 10 Opinion of the Court 26-10601 quality. Cerny reshot the training video on March 15, 2021, and submitted it. These facts are unrefuted: training was an essential part and requirement of the subcontract, the subcontract required produc- tion of a training video with audio, and the Corps rejected the first version of the video because it had poor audio quality. SES “on the demand of [the Corps],” was required to reshoot the video, and it did so on March 15, 2021. Trinity Universal Ins. Co., 379 F.2d at 318. The Corps “accepted the project as complete” on April 14, 2021. “Particularly in view of the liberal construction which must be given the Miller Act,” Trinity Universal Ins. Co., 379 F.2d at 318, and in light of the facts of this case, we are persuaded that SES car- ried its burden of establishing that, at least the training video reshoot, completed on March 15, 2021, constitutes labor for the purposes of the statute of limitations, Dillon Constr. Inc., 776 F.2d at 964. That means the Miller Act claim, which SES filed on February 22, 2022, was timely. 7 The part of the district court’s judgment granting summary judgment against SES is VACATED, and the case is REMANDED to the district court for proceedings consistent with this opinion. 7 SES contends other work it completed after February 16, 2021, qualifies as labor for purposes of the Miller Act. But we need not decide that because of our conclusion that its claim was timely anyway.