Tambolina Services, Inc. v. United States ( 2015 )

In the United States Court of Federal Claims
No. 14-478 C
(Filed July 2, 2015)
UNPUBLISHED
* * * * * * * * * * * * * * *
TAMBOLINA SERVICES, INC., *
*
Plaintiff, * Contract Dispute; 41 U.S.C.
* § 7103 (2012); RCFC 12(b)(1);
v. * Failure to Present Claim for a
* Sum Certain to Contracting
THE UNITED STATES, * Officer.
*
Defendant. *
* * * * * * * * * * * * * * *
Archibald J. Thomas, III, Jacksonville, FL, for plaintiff. Samuel B. Kanupp
and Ronald P. Angerer, II, Jacksonville, FL, of counsel.
Russell J. Upton, United States Department of Justice, with whom were
Benjamin C. Mizer, Acting Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Donald E. Kinner, Assistant Director, Washington, DC, for defendant.
Shoshana O. Epstein, United States Postal Service, Washington, DC, of counsel.
_______________________
OPINION
_______________________
Bush, Senior Judge.
Before the court is defendant’s motion to dismiss brought under Rule
12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC).
Defendant’s motion to dismiss also encompasses a motion to strike certain
portions of the complaint. For the reasons set forth herein defendant’s motion to
dismiss is granted and defendant’s motion to strike is denied as moot.
BACKGROUND1
I. A History of Contract Disputes
Mr. Tamba Manya Momorie is president and chief executive officer of
Tambolina Services, Inc. (Tambolina). The company has entered into a number of
mail delivery contracts with the United States Postal Service in Florida and
Georgia. Such contracts are administered by a contracting officer for the Postal
Service based in Memphis, Tennessee. Plaintiff is based in Jacksonville, Florida.
According to the complaint, disputes arose in a number of Tambolina’s
contracts administered by the contracting officer, Keith Harris. A certain number
of these mail delivery contracts were terminated and/or not renewed by Mr. Harris.
Compl. ¶ 6. Tambolina contested these contract terminations and non-renewals
before the Postal Service Board of Contract Appeals (PSBCA). Id. ¶ 17. These
appeals were decided in favor of the Postal Service. See Momorie v. U.S. Postal
Serv., PSBCA Nos. 6362, 6400, 6409, 6410, 6416, 15-1 BCA P 35874, 2015 WL
558523 (Feb. 9, 2015).
II. The Contract Dispute at Issue in This Suit
Rather than take the current contract dispute to the PSBCA, plaintiff filed
suit in this court on June 4, 2014 regarding Highway Contract Route (HCR)
32684. Compl. ¶ 18; Def.’s App. at 122. HCR 32684 required the transport of
mail from Dunnellon, Florida to Yankeetown, Florida. Compl. ¶ 19. The contract
term was from July 1, 2009 through June 30, 2013 and had an annual contract
price, as of the time this contract dispute arose, of $34,351.33. Id.; Def.’s App. at
57. Mr. Harris terminated HCR 32684 on April 18, 2013 for the convenience of
the government. Compl. ¶ 21.
1
/ The facts recounted here are taken primarily from the complaint along with additional
facts provided by the parties’ briefs and attachments thereto. Unless otherwise noted, these facts
are undisputed for the purposes of deciding the jurisdictional challenge raised by the government.
2
Pursuant to the termination, contract services were to cease on May 10,
2013. Def.’s App. at 120. Thus, only about fifty calendar days were subtracted
from the four-year contract term. On an annual basis, only fifty days of three
hundred sixty-five days were subtracted from the contract by the contracting
officer’s action. Applying this proportion (fifty out of three hundred sixty-five) to
the annual contract price, Tambolina might have lost $4706 or some similar
amount in contract payments as a result of the termination for convenience.
Because no delivery services were performed during those fifty days, Tambolina’s
lost profits due to the termination for convenience would constitute some lesser
amount.
III. The Termination Claim
According to the complaint, the termination of HCR 32684 was retaliatory
and in bad faith. Compl. ¶ 63. The termination notice, however, stated that
“[c]urrent mail processing volumes no longer dictate the need for this service.”
Def.’s App. at 120. The notice also informed Tambolina of its right to “submit a
termination claim” pursuant to the “Termination for the Postal Service’s
Convenience” clause of the contract. That clause informed Tambolina that
payments might be received for “costs incurred by the supplier [of contract
services] in connection with the terminated portion of the contract.” Id. at 39.
Nothing in the complaint, or in the contract documents submitted by the Postal
Service, shows that such a termination for convenience costs claim was ever
received by the contracting officer.
Instead, on April 19 and 25, 2013 Mr. Momorie mailed two letters to the
contracting officer which challenged the termination of HCR 32684 as improper.
Def.’s App. at 121-24. The contracting officer responded to these letters on June
12, 2013 and provided his “final decision” on the letters under the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109 (2012), and the “Claims
and Disputes” clause of the contract. Def.’s App. at 125. The contracting officer
ruled that the termination for convenience of HCR 32684 was proper and advised
Tambolina of its appeal rights. Id.
This suit followed. It is important to note, however, that no monetary sum
was presented to the contracting officer in Mr. Momorie’s letters of April 19 and
25, 2013 to substantiate Tambolina’s claim. Nor did these letters identify a
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formula which could be used to calculate the damages due Tambolina because of
the Postal Service’s termination of the contract.2 The court now turns to its
analysis of defendant’s jurisdictional challenge to the complaint.
DISCUSSION
I. Standard of Review for a Motion to Dismiss for Lack of Jurisdiction
In rendering a decision on a motion to dismiss for lack of subject matter
jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed
factual allegations to be true and construe all reasonable inferences in favor of the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Nonetheless, plaintiff
bears the burden of establishing subject matter jurisdiction. Alder Terrace, Inc. v.
United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen.
Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)). Jurisdiction must be
established by a preponderance of the evidence. Reynolds, 846 F.2d at 748.
“A trial court may weigh relevant evidence when it considers a motion to
dismiss that challenges the truth of jurisdictional facts alleged in a complaint . . . .”
Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003) (citations
omitted). The court’s fact-finding in this regard is not limited to the pleadings.
E.g., Rocovich v. United States, 933 F.2d 991, 994 (Fed. Cir. 1991) (citations
omitted); Reynolds, 846 F.2d at 747. If jurisdiction is found to be lacking, this
court must dismiss the action. RCFC 12(h)(3).
II. Pertinent Jurisdictional Requirements of the Contract Disputes Act
The CDA is a money-mandating source of law sufficient to confer
jurisdiction in this court under the Tucker Act, 28 U.S.C. § 1491 (2012). See 28
U.S.C. § 1491(a)(2) (citing 41 U.S.C. § 7104(b)(1)); Salt River Pima Maricopa
2
/ One specific allegation in these letters is Mr. Momorie’s statement that the contract
could not be terminated without first providing sixty-days notice to Tambolina. Def.’s App. at
124. The complaint filed in this case makes no mention of a sixty-day notice provision, perhaps
because the contracting officer subsequently informed Mr. Momorie that the sixty-day notice
requirement did not apply to HCR 32684. Id. at 125-26.
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Indian Cmty. v. United States, 86 Fed. Cl. 607, 616 (2009) (citations omitted). For
this court to take jurisdiction over a CDA claim, however, the contractor must
have first presented a written claim to the contracting officer specifying the basis
of the claim. 41 U.S.C. § 7103(a)(1)-(2); see, e.g., M. Maropakis Carpentry, Inc.
v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010) (M. Maropakis) (stating
that “for the Court of Federal Claims to have jurisdiction under the CDA, the
contractor must submit a proper claim – a written demand that includes
(1) adequate notice of the basis and amount of a claim and (2) a request for a final
decision”). For monetary claims, the contractor must state the “sum certain” of its
claim. M. Maropakis, 609 F.3d at 1329.
III. Analysis
Although the parties dispute a number of jurisdictional issues presented by
the complaint, the court will focus on only two. First, does the complaint present a
monetary claim for damages resulting from the termination of HCR 32684?
Second, was a valid monetary claim before the contracting officer so as to provide
CDA jurisdiction for a monetary claim in this court? The answers to these
questions are determinative of this court’s jurisdiction and render the remainder
the parties’ arguments irrelevant.3
A. The Complaint Presents a Monetary Claim
The complaint presents three legal theories: (1) breach of contract;
(2) breach of the covenant of good faith and fair dealing; and, (3) tortious
interference with prospective economic advantage. Compl. at 27-30. Each count
of the complaint requests that the United States “pay [plaintiff] damages.” Id. at
28-31. Although the complaint sets forth no specific amount of damages, it is
clear that the requests for relief set forth in the complaint present a monetary claim
3
/ The court cannot consider other contract disputes that were obliquely referenced in the
complaint. The claim before the contracting officer in Mr. Momorie’s April 2013 letters
exclusively challenged the termination of HCR 32684. Def.’s App. at 121, 123.
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for this court’s adjudication.4
B. No Valid Monetary Claim Was Presented to the Contracting
Officer
As stated above, the April 2013 letters sent by Mr. Momorie do not mention
a specific sum for damages owed to plaintiff. Instead, the letters, taken together,
set forth a general request that Mr. Harris reconsider his contract termination
decision. Plaintiff concedes that there was no sum certain identified in the letters
presented to the contracting officer in April 2013. Pl.’s Resp. at 23. The letters
thus fail to satisfy the “sum certain” requirement for monetary CDA claims. See,
e.g., K Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015)
(restating that court’s “longstanding demand that a [CDA] claim adequately
specify both the amount sought and the basis for the request”); Scott Timber Co. v.
United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003) (“‘All that is required is that
the contractor submit in writing to the contracting officer a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and
amount of the claim.’” (quoting Contract Cleaning Maint., Inc. v. United States,
811 F.2d 586, 592 (Fed. Cir. 1987))); Exec. Court Reporters, Inc. v. United States,
29 Fed. Cl. 769, 775 (1993) (Court Reporters) (“As the Federal Circuit has
repeatedly noted, a claim must seek payment of a sum certain to satisfy the second
prong of the claim inquiry.”) (citations and internal quotations omitted).
This court has held that a monetary CDA claim may be saved from a failure
to identify a sum certain if a simple mathematical calculation or the contractor’s
documentary submission to the contracting officer would determine the amount of
the claim. See, e.g., N. Star Alaska Hous. Corp. v. United States, 76 Fed. Cl. 158,
184 (2007) (North Star) (stating that “this court has consistently interpreted the
4
/ The court does not read the complaint to contain a non-monetary CDA claim. There is
neither a request for an interpretation of contract terms nor a request for non-monetary relief
related to HCR 32684. Indeed, plaintiff’s response to the government’s motion to dismiss does
not attempt to identify a non-monetary claim but instead attempts to salvage the complaint’s
monetary claim. See Pl.’s Resp. at 24 (“Plaintiff's contract claim can therefore be determined
through a mathematical calculation. . . . Further, Plaintiff’s claims seeking his consequential loss
can also be determined through a mathematical calculation.”).
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‘sum certain’ requirement to include amounts in dispute that ‘can be easily
determined by a simple mathematical calculation or from the contractor’s
submission to the contracting officer’” (quoting Metric Constr. Co. v. United
States, 14 Cl. Ct. 177, 179 (1988) and citing CPS Mech. Contractors, Inc. v.
United States, 59 Fed. Cl. 760, 764 (2004); Court Reporters, 29 Fed. Cl. at 775;
Sun Eagle Corp. v. United States, 23 Cl. Ct. 465, 472 (1991))); Modeer v. United
States, 68 Fed. Cl. 131, 137 (2005) (“The sum certain requirement is met if the
contracting officer can determine the amount claimed by a simple mathematical
calculation.”) (citations omitted), aff’d, 183 F. App’x 975 (Fed. Cir. 2006).
Indeed, plaintiff argues that the amount of Tambolina’s claim before the
contracting officer may be discerned by using a simple mathematical calculation.
Pl.’s Resp. at 23-24. The court must disagree.
Simply because the contract documents in the possession of Mr. Harris
might have pointed to certain parameters for a claim based on an improper
termination of HCR 32684, those parameters do not supply a formula for
Tambolina’s claim. The contracting officer could not have known whether
Tambolina was claiming: (1) $4706, the approximate amount of payment that
would have been due under the contract for the remaining fifty calendar days of
mail transport; (2) standard termination for convenience costs; (3) breach of
contract damages for the balance of HCR 32684; (4) damages for non-renewal of
HCR 32684; or, (5) some other amount entirely. The April 2013 letters provided
no damages framework which would have enabled Mr. Harris to choose a
mathematical formula, simple or otherwise, with which he could have determined
the amount of Tambolina’s termination claim. The letters cannot, therefore,
satisfy the “simple mathematical formula” approach to fulfilling the sum certain
requirement for valid CDA monetary claims. See, e.g., Court Reporters, 29 Fed.
Cl. at 775-76 (holding, in that case, that the sum certain requirement was not
satisfied, even through the “simple mathematical formula” approach, because the
contractor had not included dollar figures in the claim submitted to the contracting
officer); see also North Star, 76 Fed. Cl. at 185 (rejecting the “suggest[ion] that
administrative claims can be cobbled together from various documents that were
possessed by defendant, [when] there are no select group of documents, supplied
by plaintiff or otherwise, that provide a ‘clear and unequivocal’ indication as to
the amount sought by plaintiff”).
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Not only do Mr. Momorie’s April 2013 letters fail to provide the basis for
any mathematical formula, they also fail to provide any indicators which would
have informed Mr. Harris of the monetary amount requested by Tambolina under
the CDA and under HCR 32684. The first letter, sent on April 19, 2013, merely
identifies an alleged motive for the termination of the contract. Def.’s App. at 122
(“Your decision to terminate this contract is nothing but malice and . . . continued
retaliatory action against me . . . .”). The “addendum” to the first letter, sent on
April 25, 2013, challenges the propriety of the contract termination on a number of
fronts and discloses Mr. Momorie’s intent to pursue his rights of appeal, but again
fails to provide any information regarding the monetary aspects of Tambolina’s
claim. Id. at 123-24. Thus, in Tambolina’s April 2013 submissions to Mr. Harris,
there is no indication, clear or otherwise, of the amount of a monetary claim
presented for the contracting officer’s final decision. See, e.g., North Star, 76 Fed.
Cl. at 186 (noting that the sum certain requirement cannot be satisfied if the claim
submission does not “definitively claim[] all or some specified amount of th[e]
costs [identified by the contractor]”). For this reason, the contracting officer had
no valid monetary claim under the CDA upon which he could rule, and this court
has no jurisdiction under the CDA for the monetary claim presented in this suit.
M. Maropakis, 609 F.3d at 1329.
CONCLUSION
There is no CDA jurisdiction for the monetary claim presented in the
complaint because no valid monetary claim was presented to the contracting
officer. Further, because the court lacks jurisdiction over this suit, there is no need
to reach defendant’s request that the court strike portions of the complaint.
Accordingly, it is hereby ORDERED that
(1) Defendant’s Motion to Dismiss and Motion to Strike, filed October 3,
2014, is GRANTED in part as to dismissal of this suit, and
DENIED in part as to striking certain portions of the complaint;
(2) The Clerk’s Office is directed to ENTER final judgment in favor of
defendant DISMISSING plaintiff’s complaint for lack of subject
matter jurisdiction, without prejudice; and
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(3) Each party shall bear its own costs.
/s/ Lynn J. Bush
LYNN J. BUSH
Senior Judge
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