White Buffalo Construction, Inc. v. United States , 2015 U.S. Claims LEXIS 985 ( 2015 )

In the United States Court of Federal Claims
Nos. 99-961C, 00-415C, and 07-738C
(Consolidated)
(Filed: August 3, 2015)
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WHITE BUFFALO CONSTRUCTION, INC., *
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Construction Contract for Road
Plaintiff, *
Repairs in National Forest; Default
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Termination Converted to Termination
v. *
for Convenience of the Government;
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Correction of Damages Following
THE UNITED STATES, *
Remand.
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Defendant. *
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Richard E. Alexander, Stoel Rives, LLP, Portland, Oregon, for Plaintiff.
Heidi L. Osterhout, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., for Defendant.
OPINION AND ORDER ON REMAND
WHEELER, Judge.1
In the fall of 1998, the Federal Highway Administration (“FHA”) contracted with
Plaintiff White Buffalo Construction, Inc. (“White Buffalo”) to repair damaged roads in
the Siskiyou National Forest, located in southwestern Oregon. In December 1998, the FHA
terminated the contract for default. White Buffalo filed suit in this Court on November 30,
1999, challenging the default termination, and seeking conversion to a termination for the
convenience of the Government. White Buffalo filed a second suit on July 14, 2000
seeking the return of liquidated damages paid by White Buffalo’s surety. Prior to trial in
these cases, the FHA, with authorization from the Department of Justice, converted White
Buffalo’s termination for default into a termination for convenience based on evidence
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On June 5, 2015, Judge Wheeler received this case by transfer from Judge Lawrence J. Block.
reviewed during trial preparation. White Buffalo maintained its 1999 and 2000 lawsuits,
however, arguing that the conversion deprived it of relief under the Equal Access to Justice
Act (“EAJA”), 28 U.S. § 2414, through which White Buffalo could have obtained
attorneys’ fees. On October 22, 2007, White Buffalo filed a third lawsuit, to obtain lost
profits on uncompleted work due to the FHA’s alleged bad faith conduct and to challenge
the amount of the termination settlement with the FHA.
This Court, with Senior Judge Loren A. Smith presiding, conducted a trial and
issued a decision on September 22, 2011, finding that the 1999 and 2000 cases were moot
due to the FHA’s conversion of the termination for default into a termination for
convenience. The Court did not, however, dismiss those cases in its judgment. The Court
also found that the FHA did not act in bad faith toward White Buffalo, and thus the Court
awarded no lost profits for uncompleted work. The Court did award $353,237.36 plus
interest to be paid on White Buffalo’s termination for convenience claim. However, the
Court failed to include $29,528.00 in subcontractor damages in its final calculation due to
a mathematical error. See White Buffalo Constr., Inc. v. United States, 101 Fed. Cl. 1
(2011).
White Buffalo filed a notice of appeal of these consolidated cases on January 6,
2012. On November 1, 2013, the U.S. Court of Appeals for the Federal Circuit issued its
decision affirming in part, vacating in part, and remanding the case to this Court with
directions. White Buffalo Constr., Inc. v. United States, 546 Fed. App’x 952 (Fed. Cir.
2013). On December 23, 2013, the Federal Circuit issued its mandate to this Court, with
instructions to dismiss the 1999 and 2000 cases as moot, and to determine whether to award
the missing $29,528.00 in damages.
The parties have agreed in a July 24, 2015 joint status report that the $29,528.00 in
subcontractor damages were actually awarded by this Court but were not added to the
original judgment. The Court therefore awards the missing $29,528.00 in damages in case
number 07-738C, and dismisses the cases docketed as 99-961C and 00-415C as moot. The
$29,528.00 in subcontractor damages should be added to the $352,237.36 previously
awarded for a corrected total of $381,765.36, with interest to be recalculated by the parties
in accordance with applicable law. The Clerk is directed to issue an amended judgment
reflecting this ruling.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge
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