Lee's Ford Dock, Inc. v. Secretary of the Army , 865 F.3d 1361 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
LEE’S FORD DOCK, INC.,
Appellant
v.
SECRETARY OF THE ARMY,
Appellee
______________________
2016-2308
______________________
Appeal from the Armed Services Board of Contract
Appeals in No. 59041, Administrative Judge Craig S.
Clarke.
______________________
Decided: August 2, 2017
______________________
ALAN IRVING SALTMAN, Smith, Currie & Hancock
LLP, Washington, DC, argued for appellant.
BARBARA E. THOMAS, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for appellee. Represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., MARTIN F.
HOCKEY, JR., JEFFREY A. REGNER.
ELIZABETH GRAHAM WEBER, Dressman Benzinger
LaVelle PSC, Crestview Hills, KY, for amici curiae Ken-
tucky Marina Association, Tennessee Marina Association.
2 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
Also represented by KEVIN FITZPATRICK HOSKINS, Cincin-
nati, OH.
______________________
Before TARANTO, SCHALL, and STOLL, Circuit Judges.
SCHALL, Circuit Judge.
This case comes to us from the Armed Services Board
of Contract Appeals (“Board”). Lee’s Ford Dock, Inc.
(“LFD”) appeals the decision of the Board granting sum-
mary judgment in favor of the Secretary of the Army and
denying LFD’s claims for contract reformation and breach
of contract. Lee’s Ford Dock, Inc., ASBCA No. 59041, 16-1
BCA ¶ 36,298 (“LFD II”). The contract at issue is LFD’s
lease agreement with the U.S. Army Corps of Engineers
(“Corps”). For the reasons set forth below, we affirm-in-
part and dismiss-in-part.
BACKGROUND
I.
LFD operates a marina at Lake Cumberland, Ken-
tucky on land leased from the Corps. LFD entered into
the lease on August 29, 2000 under Lease No. DACW62-1-
00-0105 (the “Lease”). LFD II, 16-1 BCA ¶ 36,298, at *2
(citing J.A. 237). The Lease superseded prior leases
between LFD and the Corps dating back to 1971. The
lease area, referred to as the “premises” throughout the
Lease, comprises approximately 166 acres (130 acres of
water and 36 acres of land). Id. The Lease runs for a 25-
year term, effective from September 1, 2000 to August 31,
2025. Id. On October 7, 2003, the Corps and LFD exe-
cuted a first supplemental agreement (the “Supplemental
Agreement”). The Supplemental Agreement gives LFD
the option to extend the Lease for another 25 years to
2050 when it expires in 2025. See J.A. 271–72.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 3
One particular provision of the Lease is pertinent to
this appeal. Condition 9, “RIGHT TO ENTER AND
FLOOD,” states:
The right is reserved to the United States, its
officer[s], agents, and employees to enter upon the
premises at any time and for any purpose neces-
sary or convenient in connection with Government
purposes; to make inspections; to remove timber
or other material, except property of the Lessee; to
flood the premises; to manipulate the level of the
lake or pool in any manner whatsoever; and/or to
make any other use of the lands as may be neces-
sary in connection with project purposes, and the
Lessee shall have no claim for damages on ac-
count thereof against the United States or any of-
ficer, agent, or employee thereof.
J.A. 241–42.
II.
Lake Cumberland was impounded from the Cumber-
land River when the Corps constructed Wolf Creek Dam
in 1951. The Wolf Creek Dam-Lake Cumberland project
is managed by the Corps. On January 19, 2007, Brigadier
General (“BG”) Bruce Berwick, Commander of the Corps’
Great Lakes and Ohio River Division, and Lieutenant
Colonel (“LTC”) Steven Roemhildt, Commander of the
Corps’ Nashville District, signed a Memorandum for
Record titled “Wolf Creek Dam Interim Risk Reduction
Measures” (the “IRR Memo”). LFD II, 16-1 BCA ¶ 36,298,
at *3. The IRR Memo documented the decision by BG
Berwick and LTC Roemhildt to “lower the pool [of Lake
Cumberland] to elevation 680 immediately and hold that
elevation for an indefinite period, unless and until the
Corps determines that a different pool elevation is more
appropriate.” Id. at *4 (citing J.A. 74). The IRR Memo’s
Executive Summary stated: “I consider Wolf Creek Dam
to be in a high risk of dam failure and therefore I am
4 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
taking necessary emergency measures to reduce immi-
nent risk of human life, health, property, and severe
economic loss.” Id. (citing J.A. 67). The IRR cited four
reviews, conducted in 2005 and 2006, documenting the
condition of Wolf Creek Dam. Three of the reviews con-
cluded that the dam was at a high risk of failure. Id.
On January 22, 2007, in accordance with the IRR
Memo, the Corps began lowering the water level in Lake
Cumberland. Id. When the drawdown was completed,
the level of the lake was reduced to an elevation of 680
feet. J.A. 81. The lake was maintained at that level while
restorative construction was undertaken to repair Wolf
Creek Dam. The Corps returned the lake to its previous
levels in 2014 after the restoration work was completed.
III.
Condition 32 of the Lease is titled “DISPUTES
CLAUSE.” J.A. 250. It provides, in subsection a., that,
“[e]xcept as provided in the Contract Disputes Act . . . , all
disputes arising under or relating to this lease shall be
resolved under this clause and the provisions of the Act.” 1
Id. The DISPUTES CLAUSE further provides, in subsec-
tion c., that “[a] claim by the Lessee shall be made in
writing and submitted to the District Engineer for a
decision.” Finally, subsection c.(2) of the DISPUTES
CLAUSE requires that all claims in excess of $100,000 be
certified. Id.
On January 18, 2013, LFD submitted a certified claim
to the District Engineer, who was acting as the contract-
ing officer for the Lease. In its claim, LFD asserted that,
1 The Lease cites to the Contract Disputes Act
(“CDA” or “Act”) as set forth at 41 U.S.C. §§ 601–613. J.A.
250. The CDA is now codified at 41 U.S.C. §§ 7101–7109.
All references and citations to the CDA herein refer to the
current version of the Act.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 5
at the time they entered into the Lease, the parties “could
not have envisioned” that Lake Cumberland “would be
drawn down to such an extreme degree for such a long
period of time, as the Lake has only been lowered to 680’
once in its more than fifty year history.” J.A. 63. LFD
continued that, “[a]gainst this background, the purpose of
the Lease contract has been frustrated to such an extent
that . . . the Lease should be reformed in a manner that
requires the Corps to compensate [LFD] for the damages
it has incurred as a result of the long-term drawdown of
the Lake.” Id. LFD stated that these damages amounted
to at least $4,000,000. J.A. 65. In a final decision dated
August 26, 2013, the District Engineer denied LFD’s
claim. The District Engineer informed LFD that it had
the option of appealing the final decision to the Board or
to the U.S. Court of Federal Claims. J.A. 176.
On November 27, 2013, LFD timely appealed the Dis-
trict Engineer’s final decision to the Board. J.A. 83. In its
one-count complaint, LFD alleged that the Corps had
breached its contract with LFD by failing to disclose to it
superior knowledge on the Corps’ part. See J.A. 87–88.
According to LFD, the Corps conducted major inspections
of Wolf Creek Dam in 1994 and 1999, and in 1999 inspec-
tors identified expanding leaks in the dam and called for a
crack survey. J.A. 86 ¶ 14. LFD asserted that, prior to
entering into the Lease, the Corps failed to disclose this
information to LFD, and also failed to disclose to LFD
concerns it had about the condition of the dam. Id. ¶ 15.
On February 5, 2014, the Corps filed a motion to dis-
miss LFD’s complaint. The Corps argued that the Board
lacked jurisdiction under the CDA because LFD had
failed to submit its superior knowledge claim to the
District Engineer and had failed to certify the claim. See
J.A. 90–91.
On July 23, 2014, the Board issued a decision address-
ing the Corps’ motion to dismiss. Lee’s Ford Dock, ASBCA
6 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
No. 59041, 14-1 BCA ¶ 35,679 (“LFD I”). After stating
that it had jurisdiction to entertain LFD’s appeal under
both the Lease’s DISPUTES CLAUSE and the CDA, id. at
*1, the Board turned to the substance of the Corps’ mo-
tion. The Board held that the superior knowledge claim
was a new claim that had not been certified to the District
Engineer for a decision because there was nothing in the
operative facts of LFD’s certified claim that supported a
superior knowledge theory. Id. at *10–11. The Board
found that the only allegation related to knowledge at the
time of the award was the allegation that the parties
could not have envisioned that Lake Cumberland would
be drawn down to such an extreme degree for such a long
time. Id. In that regard, the Board stated:
[LFD’s] assertion that the parties could not have
envisioned at the time they entered into the Lease
that the lake would be drawn down to such an ex-
treme degree for such a long period of time com-
municates a common understanding that is
inconsistent with the disparity of knowledge re-
quired for superior knowledge.
Id. Of “critical importance,” the Board continued, was
“the complete absence [in LFD’s claim submission] of any
assertion that the [Corps] had information that appellant
did not.” Id. The Board concluded that, because the
complaint constituted a new claim that had not been
presented to a contracting officer for a decision as re-
quired by the CDA, it lacked jurisdiction. It therefore
struck the complaint. Id. at *11. The Board did so,
however, without prejudice to the filing of a proper claim
with the District Engineer (noting, though, that it ex-
pressed no view on the timeliness of any such claim).
Lastly, the Board stated that it was retaining jurisdiction
over the appeal, and it added that “[LFD] may amend its
complaint to assert theories supported by the operative
facts stated in the claim.” Id.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 7
Instead of returning to the District Engineer for a new
contracting officer’s decision, on January 26, 2015, LFD
filed an amended complaint before the Board. The com-
plaint included three counts. In Counts I and II of the
amended complaint, LFD sought contract reformation.
J.A. 111–16. In Count III, it alleged common law breach
of contract. J.A. 116–17.
In Count I, LFD asserted that reformation should be
granted for three reasons: first, because the Lease did not
mention the poor condition of the dam; second, because of
the exculpatory language of Condition 9 (“RIGHT TO
ENTER AND FLOOD”) 2; and third, because of the failure
of the Corps to take corrective action upon the return of
leaking and seepage in the dam. J.A. 111–14. Count II
urged reformation on the grounds that (1) when LFD
entered into the Lease, it had relied on the dam’s func-
tioning so that there would be no need for a long-term
drawdown; (2) the Corps had made a commitment to
minimize the impact of the drawdown on “Cumberland
stakeholders”; and (3) LFD had relied on the representa-
tions of Corps officials as to when the lake level would
return to normal, representations which proved to be
inaccurate. J.A. 114–16. In Count III, LFD alleged that,
although the Lease gave the Corps the right to lower the
level of the lake, a seven-year drawdown was unreasona-
bly long and therefore amounted to a breach of contract.
J.A. 116–17.
In due course, the Corps moved for summary judg-
ment, arguing that there was no genuine issue of material
fact on the issues of reformation and breach of contract
2 According to LFD, reformation was required in
part to remedy Condition 9’s purportedly giving the Corps
“the power to lower the level of Lake Cumberland for
unlimited durations without having to compensate [LFD]
in any way.” J.A. 114.
8 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
and that it was entitled to judgment as a matter of law.
J.A. 119. On March 7, 2016, the Board granted the Corps’
motion. LFD II, 16-1 BCA ¶ 36,298, at *14. Addressing
Count I of the amended complaint, the Board concluded
that that there was no genuine issue of material fact
suggesting that the Corps had, through silence in August
of 2000, misrepresented to LFD the condition of the dam.
The Board also concluded that there was no genuine issue
of material fact suggesting that, during contract for-
mation, LFD had made the condition of the dam an issue.
In addition, the Board found that there was no evidence
that the Corps agreed or would have agreed to an agree-
ment “where it assumed the risk if the dam needed repair
necessitating lowering of the water in the lake for a
substantial period of time.” Id. at *11. As far as Count II
was concerned, the Board determined that LFD had failed
to establish that the Corps had a duty to take the correc-
tive action LFD alleged. Id. at *11–12. The Board thus
rejected LFD’s reformation claims. Turning to Count III
of the amended complaint, the Board determined that
there was no genuine issue of material fact suggesting a
breach of contract. Id. at *12–13. The Board also deter-
mined that the plain language of Condition 9 gives the
Corps the right to lower the water level of the lake, with-
out any limitation on the length of the drawdown. Id.
The Board therefore rejected LFD’s breach of contract
claim. Id.
DISCUSSION
LFD has timely appealed to us, arguing that the
Board erred in granting the Corps’ motion for summary
judgment. Before turning to the merits, however, we
must address the government’s contention that we lack
jurisdiction over this appeal.
I.
Under 28 U.S.C. § 1295(a)(10), we possess exclusive
jurisdiction “of an appeal from a final decision of an
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 9
agency board of contract appeals pursuant to section
7107(a)(1) of title 41.” Paragraph 7107(a)(1) is part of the
CDA. It provides that the decision of an agency board is
final unless timely appealed to the Federal Circuit. 41
U.S.C. § 7107(a)(1). The government argues that we lack
jurisdiction over LFD’s appeal because the Board lacked
jurisdiction to enter a final decision under the CDA. That
is so, the government says, because the Lease is not the
type of contract covered by the CDA. In other words, the
Lease is not a CDA contract.
The government is correct that we lack jurisdiction
over an appeal from a final decision of the Board if that
decision does not arise from a CDA contract. See G.E.
Boggs & Assocs., Inc. v. Roskens, 969 F.2d 1023, 1026
(Fed. Cir. 1992). We do not agree with the government
that we lack jurisdiction over LFD’s appeal, however,
because the Lease is a CDA contract.
The CDA applies to contracts made by an executive
agency for:
(1) the procurement of property, other than real
property in being;
(2) the procurement of services;
(3) the procurement of construction, alteration,
repair, or maintenance of real property; or
(4) the disposal of personal property.
41 U.S.C. § 7102(a)(1)–(4). LFD acknowledges that the
Lease does not reflect a procurement contract under
§ 7102(a)(1)–(3). See Appellant’s Suppl. Br. 1–2. Thus,
the CDA governs the Lease only if it is a contract for the
disposal of personal property under § 7102(a)(4). We
conclude that that the Lease is such a contract.
It is well settled that leasehold interests are items of
personal property unless a statute commands otherwise.
See, e.g., Forman v. United States, 767 F.2d 875, 879 n.4
10 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
(Fed. Cir. 1985) (reasoning that, in the CDA context,
“leases are normally considered within the realm of
contracts . . . and also are personal (rather than real)
property” (internal citations omitted)); 1 AMERICAN LAW
OF PROPERTY § 3.12 (1952); see also, e.g., Burns v. Equita-
ble Assocs., 265 S.E.2d 737, 742–43 (Va. 1980); Neuman v.
Travelers Indem. Co., 319 A.2d 522, 525 (Md. 1974);
Abraham v. Fioramonte, 107 N.E.2d 321, 325 (Ohio 1952);
Robertson v. Scott, 172 S.W.2d 478, 478–79 (Tex. 1943);
State ex rel. Truitt v. Dist. Ct. of Ninth Judicial Dist.,
Curry Cty., 96 P.2d 710, 717 (N.M. 1939); In re Craver’s
Estate, 179 A. 606, 607 (Pa. 1935); Myers v. Arthur, 238 P.
899, 900–01 (Wash. 1925). The government has not
pointed us to any federal statute defining leaseholds as
real property, nor are we aware of one applicable here.
LFD’s right to operate a marina on the leased premises
for a term of years is therefore personal, rather than real,
in nature.
The only remaining question is whether the Corps
“disposed” of this personal property interest when it
entered into the Lease with LFD. We hold that it did.
“Dispose” is a broad term meaning “to exercise control
over; to direct or assign for a use; to pass over into the
control of some one else; to alienate, bestow, or part with.”
Disposal, BLACK’S LAW DICTIONARY (4th ed. 1951); see also
Phelps v. Harris, 101 U.S. 370, 380 (1879) (reasoning that
“to dispose of” carries a “very broad” scope). By entering
into the Lease with LFD, the Corps “bestowed,” “di-
rected,” and “assigned”—and therefore disposed of—a
personal property right to LFD to operate a marina on the
leased premises. See Hill v. Sumner, 132 U.S. 118, 124
(1889) (holding that a fractional owner of a mine could
“dispose of” his interest by “selling it outright, or by
leasing it” (emphasis added)). The Lease therefore em-
bodies a contract for “the disposal of personal property”
within the purview of the CDA. 41 U.S.C. § 7102(a)(4).
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 11
Citing to legislative history, the government takes the
position that the CDA’s “disposal of personal property” is
limited to surplus sales contracts. See Appellee’s Suppl.
Br. 12. We are not persuaded by this argument. In the
first place, the legislative history does not state that
§ 7102(a)(4) is limited to surplus sales contracts. See S.
REP. NO. 95-1118, at 18 (1978). But just as importantly,
the plain words of the statute are, on their face, broad
enough to encompass the type of transaction presented in
this case. See Phelps, 101 U.S. at 380 (“The expression ‘to
dispose of’ is very broad, and signifies more than ‘to sell.’
Selling is but one mode of disposing of property.”). We
therefore decline to restrict the scope of the CDA to a
nonlimiting example drawn from the legislative history
when the statute uses unambiguously broader language.
See Indian Harbor Ins. Co. v. United States, 704 F.3d 949,
956 (Fed. Cir. 2013) (“[R]eference to legislative history is
inappropriate when the text of the statute is unambigu-
ous.” (quoting Dep’t of Hous. & Urban Dev. v. Rucker, 535
U.S. 125, 132 (2002))).
The government argues that the CDA does not apply
to concession contracts such as the Lease. Appellee’s
Suppl. Br. 15–19. We do not agree. As a preliminary
matter, the CDA does not distinguish between concession
and nonconcession contracts. The government’s categori-
zation of the Lease thus strikes us as beside the point. In
any event, the nonbinding cases which the government
cites are uninstructive. They either hold that concession
contracts are not “procurements” (an issue not raised in
this case), see Amfac Resorts, L.L.C. v. U.S. Dep’t of Inte-
rior, 282 F.3d 818, 835 (D.C. Cir. 2002); Frazier v. United
States, 67 Fed. Cl. 56, 59 (2005), or they rely on an inap-
plicable regulation involving concession contracts with the
National Park Service, see Coffee Connections, Inc. v.
United States, 113 Fed. Cl. 741, 751 (2013) (relying in
part on 36 C.F.R. § 51.3, relating to concession contracts
under the National Park Service Concession Policies Act
12 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
of 1965); Terry v. United States, 98 Fed. Cl. 736, 737
(2011) (same). The lease here does not involve the Na-
tional Park Service, and the government has not ex-
plained why regulations limited to the National Park
Service Concession Policies Act of 1965 should inform our
analysis.
Accordingly, we hold that the Lease is a contract for
“the disposal of personal property” under 41 U.S.C.
§ 7102(a)(4). We therefore have jurisdiction to decide this
appeal. 3 28 U.S.C. § 1295(a)(10). We turn now to the
merits of the case.
II.
LFD contends that, in granting summary judgment in
favor of the Corps, the Board erred in rejecting its claim
for contract reformation (Counts I and II of the amended
complaint) and its claim for breach of contract (Count III
of the amended complaint). In both cases, LFD asserts,
there are genuine issues of material fact. We address
first LFD’s claim for contract reformation.
A.
1.
LFD’s reformation claim rests upon the allegation
that, when the Corps and LFD entered into the Lease in
2000, the Corps failed to disclose to LFD the condition of
the dam. According to LFD, “[t]he Corps’ total silence in
2000 (and again in 2003) about the Wolf Creek Dam’s
being in need of major reconstruction constituted a mis-
representation (albeit by silence) regarding the material
fact upon which Lee’s Ford was relying – the basic sound-
ness of the Wolf Creek Dam.” Appellant’s Br. 27. LFD
3 Because we have jurisdiction under the CDA, we
do not reach the issue of whether the Board had jurisdic-
tion under the Lease’s DISPUTES CLAUSE.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 13
urges that, before the Board, it demonstrated (1) the
existence of a material misrepresentation (by silence) on
the part of the Corps as to the condition of the dam; (2) its
reasonable reliance on the absence of any statement by
the Corps pointing out the problems that existed with the
dam; and (3) the damages it suffered when, as a result of
the dam’s condition, the level of Lake Cumberland had to
be lowered in order to perform work on major reconstruc-
tion of the dam. Id. at 30. Finally, LFD argues that the
Board erred as a matter of law in requiring LFD to have
communicated to the Corps in 2000 its belief that there
were no major problems with the dam and that it would
be reluctant to enter into the Lease if there were such
problems. Id. at 31.
The government addresses LFD’s reformation claim
argument in two ways. First, it contends that the Board
lacked jurisdiction over the claim under the CDA because
the claim was premised on an alleged misrepresentation
as to the condition of the dam. Appellee’s Br. 14–17. The
government points out that, in Santa Fe Engineers, Inc. v.
United States, we stated that “[o]n appeal to the Board . . .
a contractor . . . may not raise any new claims not pre-
sented and certified to the contracting officer.” 818 F.2d
856, 858 (Fed. Cir. 1987). LFD’s misrepresentation claim
to the Board, the government contends, was new and
different from the claim LFD submitted to the District
Engineer in 2013, in which it asserted that the parties
were mutually mistaken as to the condition of the dam.
Again citing to Santa Fe, the government argues that a
claim is new if it is based upon a set of operative facts
different from those that were presented and certified to
the contracting officer. Appellee’s Br. 14–17 (citing 818
F.2d at 858–60). Second, the government urges that, in
any event, the Board did not err in granting summary
judgment in favor of the Corps. According to the govern-
ment, there are no genuine issues of material fact with
respect to whether there was misrepresentation on the
14 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
part of the Corps, id. at 17–24, and with respect to wheth-
er the dam’s condition was a basic assumption of the
Lease, id. at 24–28.
2.
Whether the Board has jurisdiction over a claim pre-
sents a question of law we review de novo. See 41 U.S.C.
§ 7107(b)(1); Sharp Elecs. Corp. v. McHugh, 707 F.3d
1367, 1371 (Fed. Cir. 2013); Arnold M. Diamond, Inc. v.
Dalton, 25 F.3d 1006, 1010 (Fed. Cir. 1994). We agree
with the government that the Board lacked jurisdiction
over LFD’s reformation claim.
This issue has a somewhat unusual posture in that
the Board decided the merits of LFD’s misrepresentation
claim, LFD II, 16-1 BCA ¶ 36,298, at *8–12, despite
having previously ruled that it lacked jurisdiction over
LFD’s substantively-identical superior knowledge claim.
LFD I, 14-1 BCA ¶ 35,679, at *10–11. The Board cannot
waive jurisdictional requirements, however. See, e.g.,
Sharp, 707 F.3d at 1375; W.M. Schlosser Co., Inc. v.
United States, 705 F.2d 1336, 1338 (Fed. Cir. 1983).
Thus, the Board had jurisdiction to consider LFD’s mis-
representation claim only if the claim complied with the
jurisdictional requirements of the CDA.
The CDA requires a claimant to submit each claim “to
the contracting officer for a decision.” 41 U.S.C.
§ 7103(a)(1). This decision is a prerequisite for Board
jurisdiction. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575
(Fed. Cir. 1995) (en banc). For this reason, the Board may
not consider “new” claims a contractor failed to present to
the contracting officer. Santa Fe, 818 F.2d at 858. A
claim is new when it “present[s] a materially different
factual or legal theory” of relief. K-Con Bldg. Sys., Inc. v.
United States, 778 F.3d 1000, 1006 (Fed. Cir. 2015).
Materially different claims “will necessitate a focus on a
different or unrelated set of operative facts.” Placeway
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 15
Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed.
Cir. 1990).
Here, LFD predicated its reformation claim to the
Board on a different set of operative facts from those
presented to the contracting officer. Before the Board,
LFD sought reformation under the theory that the Corps
misrepresented the condition of the Wolf Creek Dam by
failing to disclose the dam’s deteriorated state. See J.A.
113–14 ¶¶ 57–58, 60. In its original certified claim to the
District Engineer, however, LFD grounded its reformation
claim on mutual mistake and frustration of purpose:
While the Lease does contemplate that the Corps
has the right “to manipulate the level of the lake
or pool,” the parties could not have envisioned at
the time that they entered into the Lease that the
Lake would be drawn down to such an extreme
degree for such a long period of time, as the Lake
has only been lowered to 680’ once in its more
than fifty year history. Instead, all that the par-
ties could have anticipated was perhaps a short-
term drawn [sic] down for repairs to the Dam . . . .
J.A. 63 (emphases added). LFD’s certified claim did not
allege that the Corps had knowingly misrepresented the
condition of the dam, by silence or otherwise. Id. LFD
thus did not set forth operative facts supporting its later
claim of misrepresentation. See, e.g., RESTATEMENT
(SECOND) OF CONTRACTS §§ 161, 164 (AM. LAW INST.
1981). 4 In fact, in LFD I, the Board dismissed LFD’s
4 The certified claim omits other operative facts rel-
evant to a misrepresentation by silence claim, such as
whether the Corps’ alleged nondisclosure violated reason-
able standards of fair dealing and whether LFD was
justified in relying on such silence. See RESTATEMENT
(SECOND) OF CONTRACTS §§ 161, 164 (AM. LAW INST. 1981);
16 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
superior knowledge claim on this very basis. 14-1 BCA
¶ 35,679, at *10–11. The Board therefore did not have
jurisdiction to adjudicate LFD’s new claim of misrepre-
sentation by nondisclosure. Santa Fe, 818 F.2d at 858–
60. That deprives us of jurisdiction on appeal. Id.
LFD responds that the Board did have CDA jurisdic-
tion over its misrepresentation claim because, in LFD’s
view, its certified claim to the District Engineer supports
its later-asserted misrepresentation claim. This is so,
argues LFD, because its original claim submission put the
Corps on notice that the “parties’ respective knowledge”
on the state of the dam was pertinent to desired relief of
reformation. Appellant’s Reply Br. at 7–8. We are not
persuaded by this argument. In its certified claim, LFD
confined its allegations to the Corps’ supposed mistaken
belief about the condition of Wolf Creek Dam. J.A. 63.
Those allegations do not suggest, and are in fact logically
inconsistent with, the very different notion that the Corps
knowingly misrepresented the state of the dam. See K-
Con, 778 F.3d at 1006 (reasoning that a claim for “breach
of contract for not constructing a building on time” is
different from a claim of “breach of contract for construct-
ing with the wrong materials”); Santa Fe, 818 F.2d at
858–60.
Finally, LFD cites to Scott Timber Co. v. United States,
333 F.3d 1358 (Fed. Cir. 2003) for the proposition that
claims need not invoke particular words to be effective.
LFD’s reliance on Scott is misplaced. Scott held that two
claims implicating different legal theories were sufficient-
ly similar when they arose “from the same operative
facts.” 333 F.3d at 1365. For the reasons explained
above, that circumstance does not exist here.
see also Roseburg Lumber Co. v. Madigan, 978 F.2d 660,
667 (Fed. Cir. 1992).
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 17
Because LFD did not properly present its reformation
claim to the District Engineer, neither the Board nor we
have jurisdiction over it. We therefore dismiss LFD’s
reformation claim based on misrepresentation by silence.
We turn now to LFD’s breach of contract claim.
B.
1.
LFD challenges the Board’s grant of summary judg-
ment in favor of the Corps on its breach of contract claim.
LFD argues that the Corps breached the Lease by under-
taking an extended drawdown of Lake Cumberland.
Recognizing the Corps’ right to manipulate the lake’s
water level under Condition 9 of the Lease, LFD urges
that this right cannot be absolute and must be reasonably
exercised. Appellant’s Br. 34–38.
The government responds that the Board did not err
in granting summary judgment in favor of the Corps on
LFD’s breach of contract claim. According to the govern-
ment, Condition 9 of the Lease permits the Corps to
manipulate the lake’s water level “in any manner whatso-
ever.” Appellee’s Br. 33–34. In the government’s view,
this right permits the kind of extended drawdown of Lake
Cumberland that occurred here. Id. The government
contends that this absolute right does not render the
contract illusory because the Corps did not promise to
maintain any particular water level in the lake. Id. at
34–37. And even if the right to alter the water level were
not absolute, the government contends, no evidence
suggests that the Corps acted in bad faith or unreasona-
bly in this case. 5 Id. at 36.
5 The government does not argue that the Board
lacked jurisdiction under the CDA to consider LFD’s
breach of contract claim. We have no difficulty concluding
18 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY
2.
We see no error in the Board’s grant of summary
judgment in favor of the Corps on LFD’s breach of con-
tract claim. As seen, Condition 9 of the Lease granted the
Corps the right “to manipulate the level of the lake or pool
in any manner whatsoever.” J.A. 241–42 (emphasis
added). As the Board noted, this provision is not limited
in extent or duration. LFD II, 16-1 BCA ¶ 36,298, at *12–
13. We therefore do not see any provision in the Lease
preventing the Corps from reducing the water level of
Lake Cumberland, as it did here.
LFD argues, though, that the Corps’ rights under
Condition 9 must be limited to “reasonable” manipula-
tions of the water level. Appellant’s Br. 38. Assuming
arguendo that this is so, we do not see how such a re-
striction helps LFD. As chronicled in the IRR Memo, the
Wolf Creek Dam posed a “high risk of . . . failure” endan-
gering “imminent risk of human life, health, property, and
severe economic loss.” J.A. 67. LFD offered no evidence
showing that the Corps acted unreasonably by reducing
the lake’s water level for an extended period of time in the
face of these concerns. In fact, LFD conceded at oral
argument that the Corps acted reasonably. Oral Argu-
ment at 54:01–54:40 (No. 16-2308), http://oralarguments.
cafc.uscourts.gov/default.aspx?fl=2016-2308.mp3. LFD
thus failed to raise a genuine dispute of material fact on
its breach of contract claim. Summary judgment was
therefore appropriate.
that the Board had CDA jurisdiction. In our view, LFD’s
certified claim of January 18, 2013 to the District Engi-
neer asserted facts fairly supporting a breach of contract
claim. See J.A. 63–64.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 19
CONCLUSION
For the foregoing reasons, we dismiss LFD’s contract
reformation claims for lack of jurisdiction. We affirm the
final decision of the Board granting summary judgment in
favor of the Corps on LFD’s breach of contract claim.
AFFIRMED-IN-PART, DISMISSED-IN-PART
COSTS
No costs.