Nwogu v. United States

NOTE: This opinion is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PETER C. NWOGU, doing business as,
ENVIRONMENTAL SAFETY CONSULTANTS, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-5015
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 09-CV-268, Judge Marian Blank
Horn.
___________________________
Decided: October 31, 2012
___________________________
FRANCIS O. KADIRI, of Stone Mountain, Georgia, for
plaintiff-appellant.
DAVID D’ALESSANDRIS, Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
him on the brief were TONY WEST, Assistant Attorney
NWOGU v. US 2
General, JEANNE E. DAVIDSON, Director, and BRYANT G.
SNEE, Deputy Director.
__________________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
PER CURIAM.
Peter C. Nwogu, doing business as Environmental
Safety Consultants, Inc. (“ESCI”), appeals the United
States Court of Federal Claims (“Claims Court”) decision
rejecting his various claims related to two government
contracts. We affirm-in-part, reverse-in-part, vacate-in-
part, and remand.
I.
This case arises from two government contracts the
Department of the Navy (“Navy”) awarded ESCI. In the
first, Contract No. N62472-90-C-5164 (“Contract I”)
awarded on May 23, 1991, ESCI was to remove, transport,
and dispose of industrial waste sludge from two lagoons
at the Naval Air Development Center in Warminster,
Pennsylvania. In 1995, the Navy awarded ESCI a second
contract, Contract No. N62470-95-C-2399 (“Contract II”),
to remove storage tanks at a facility in Yorktown, Vir-
ginia.
ESCI had difficulty completing Contract I and, in
March 1992, entered into a bilateral agreement with the
Navy to terminate the contract. In June of that year,
ESCI filed a claim against the Government with the
contracting officer (“CO”) for equitable adjustment in the
amount of $150,587.95.1 On February 2, 1994, the CO
1 Equitable adjustments are corrective measures
that make a contractor whole when the Government
modifies a contract.” Int’l Data Prods. Corp. v. United
3 NWOGU v. US
issued a Contracting Officer’s Final Decision (“COFD”)
awarding ESCI $10,869.00. After a series of appeals
before the Armed Services Board of Contract Appeals
(“ASBCA” or “Board”), ESCI was awarded $93,989.00,
plus interest, under Contract I.2 See Envtl. Safety Con-
sultants, Inc., ASBCA No. 53485, 05-02 BCA ¶ 33,073, at
163,937-38. The Government and ESCI both appealed
that award to this court in Case No. 2006-1180. After the
Government indicated to ESCI that the company’s appeal
was likely untimely and would be opposed as such, the
parties filed joint motions to voluntarily dismiss the
appeals, which this court granted on March 29, 2006.
Thus, ESCI’s award of $93,989.00, plus interest, under
Contract I is final.
ESCI also had difficulty completing Contract II, and
on June 6, 1998, a COFD terminated the contract for
default.3 A separate, December 3, 2001 COFD ruled that
ESCI owed the Navy $167,691.75 in reprocurement costs
and liquidated damages as a result of the default and
stated that if the Government did not receive payment
within 30 days, it could withhold and setoff the debts
States, 492 F.3d 1317, 1325 (Fed. Cir. 2007). ESCI filed a
claim alleging it incurred costs in performing Contract I
because the “waste sludge [was] materially different from
the information specified in the contract.”
2 In addition to seeking equitable adjustment, ESCI
also sought recovery for its costs pursuant to Contract I,
quantum meruit, and damages as a result of alleged
procurement fraud, bad faith and conspiracy. On Febru-
ary 29, 2000, the ASBCA found that it lacked jurisdiction
to entertain ESCI’s quantum meruit, conspiracy, and
punitive damages claims and that there was no evidence
of bad faith on the part of the Government. Envtl. Safety
Consultants, Inc., ASBCA No. 47498, 00-1, BCA ¶ 30,826,
at 152,146-48.
3 The COFD was issued as a modification to Con-
tract II.
NWOGU v. US 4
owed to ESCI to secure payment.4 ESCI appealed the
COFD’s termination of Contract II for default to the
ASBCA and also claimed an equitable adjustment of
$334,687.85 for breach of contract, entitlement to addi-
tional compensation, and specific performance. After a
series of appeals, the ASBCA eventually dismissed with
prejudice ESCI’s money claims regarding Contract II in
their entirety, see Envtl. Safety Consultants, Inc., ASBCA
No. 54615, 07-1 BCA ¶ 33,483, leaving only the “propriety
of the termination for default” for the Board to consider,5
see Envtl. Safety Consultants, Inc., ASBCA No. 51722, 02-
2 BCA ¶ 31,951. On September 28, 2011, the ASBCA
converted the Navy’s termination of Contract II for de-
fault to one of convenience to the Government. Envtl.
Safety Consultants, Inc., ASBCA No. 51722, 11-2 BCA ¶
34,848. The Government appealed that decision to this
court on January 24, 2012, but on June 5, 2012, we
granted the parties’ joint motion to voluntarily dismiss
the appeal. Thus, it is settled that Contract II was termi-
nated for convenience of the Government, not default.
4 On August 11, 2009, the Defense Finance and Ac-
counting Services (“DFAS”) notified ESCI that it had
setoff ESCI’s Contract I judgment of $93,989.00, plus
interest, against the Government’s Contract II judgment
of $167,691.75, plus interest.
5 Although ESCI appealed the COFD that deter-
mined Contract II was terminated for default, it did not
challenged the ASBCA’s determination that ESCI’s
alleged default entitled the Government to $167,691.75 in
reprocurement costs and liquidated damages. Nwogu v.
United States, 94 Fed. Cl. 637, 659 (2010) (“ESCI filed an
appeal on the contracting officer’s June 1998 termination
for default under Contract II, but did not appeal the
December 3, 2001 COFD, which assessed $167,691.75 in
liquidated damages and reprocurement costs, also on
Contract II.”).
5 NWOGU v. US
Setoff has been a consistent issue throughout the dis-
putes over Contracts I and II. For instance, in a June
2002 ASBCA proceeding regarding the amount owed to
ESCI under Contract I, the Government notified the
Board that it had a claim against ESCI under Contract II.
However, the ASBCA determined the setoff issue was not
“within the scope of this appeal” and therefore found it
was immaterial. Envtl. Safety Consultants, Inc., ASBCA
No. 53485, 02-2 BCA ¶ 31,904.
In the Claims Court case now on appeal, filed on April
28, 2009, ESCI attempted to obtain the $93,989.00 judg-
ment, plus interest,6 owed to it under Contract I and
additionally brought a breach of contract claim and a
claim for quantum meruit recovery under Contract I.
Nwogu v. United States, 94 Fed. Cl. 637, 646 (2010).
ESCI also alleged various discriminatory practices includ-
ing claims under the Fifth (due process and takings),
Thirteenth (slavery), and Fourteenth (due process and
equal protection) Amendments. Id. ESCI further argued
that the Government had breached an oral settlement
agreement to pay ESCI the amount owed to it under
Contract I in exchange for voluntarily agreeing to dismiss
its appeal to this court in 2006. Id. at 655.
The Claims Court issued its decision on August 30,
2010 and dismissed ESCI’s due process, equal protection,
slavery, takings, civil rights, and quantum meruit claims
for lack of subject matter jurisdiction. Id. at 649-51; 661-
62. Additionally, the Claims Court rejected several of
ESCI’s claims as time barred. Id. at 652-53. With respect
to ESCI’s breach of contract claim, the Claims Court held,
among other things, that the Contract Disputes Act’s
(“CDA”) 12-month statute of limitations had elapsed, id.
6 ESCI claimed pre-judgment interest of
$176,416.20 and post-judgment interest of $56,544.72.
NWOGU v. US 6
at 652 (“The court notes that even if the plaintiff’s 12-
month CDA clock had begun with the conclusion of
ASBCA proceedings on Contract I . . . an April 28, 2009,
CDA based complaint filed in [the Claims Court] would
not have been timely”), and that those issues already
decided by the ASBCA were barred under res judicata, id.
at 655.7 In response to ESCI’s argument that the Gov-
ernment breached an oral settlement agreement, the
Claims Court found that “[t]he record . . . is devoid of
support for the sort of agreement [ESCI] conjectures. Nor
is such an agreement plausible or credible.” Id. at 657.
The Claims Court also held that it lacked jurisdiction
to enforce the ASBCA’s judgment in favor of ESCI under
Contract I, id. at 657, and that the Government “has a
setoff defense against collection of [ESCI’s] ASBCA adju-
dicated entitlement for $93,989.00, plus interest, on
Contract I,” id. at 659. It is important to note that when
the Claims Court issued its opinion, ESCI’s challenge to
the COFD that determined Contract II was properly
terminated for default was still pending. As a result, the
Claims Court reasoned that “the setoff monies owed for
reprocurement costs and liquidated damages could be
impacted by a decision in favor of [ESCI] . . . should the
Board overturn the Navy’s termination for default.” Id.
Thus, the Claims Court dismissed “all of [ESCI’s]
claims” and held that “[a]t this time, the [Government]
has a legitimate right to maintain a setoff defense on the
award to [ESCI] on Contract I of $93,989.00, pending
resolution of [ASBCA] Case No. 51722 on Contract II . . .
.” Id. at 662. ESCI timely appealed the Claims Court
7 The Claims Court further held that “once [ESCI]
made an election of forum to pursue its appeal of a COFD
on Contract I and II at the ASBCA, it could not pursue an
appeal of the same COFDs in [that] court.” Nwogu, 94
Fed. Cl. at 653.
7 NWOGU v. US
decision. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
II.
We review de novo the Claims Court’s dismissal of a
claim for lack of jurisdiction. Adair v. United States, 497
F.3d 1244, 1250 (Fed. Cir. 2007). Generally, the applica-
tion of a statute of limitations is jurisdictional. See Jones
v. United States, 801 F.2d 1334, 1335 (Fed. Cir. 1986).
We review questions of law decided by the Claims Court
de novo. Roth v. United States, 378 F.3d 1371, 1381 (Fed.
Cir. 2004).
ESCI’s primary purpose in this appeal is to obtain the
judgment awarded to it by the ASBCA under Contract I.
First, ESCI faults the Claims Court for holding that the
Government could set off the amount due to ESCI under
Contract I ($93,989.00, plus interest) with the amount the
COFD determined ESCI owed the Government under
Contract II ($167,691.75). ESCI contends that the Claims
Court’s decision regarding setoff was a “suspen[sion]” of
the CDA, ESCI Br. at 17, and that the ASBCA’s June
2002 decision, which concluded that the Government’s
setoff claim was not relevant to the proceeding, requires
the Government to pay ESCI the amount owed under
Contract I, notwithstanding any amount owed to the
Government under Contract II. In contrast, the Govern-
ment argues that it is entitled to a common law right of
setoff and that the ASBCA has never held that the Gov-
ernment is not entitled to setoff.
Second, ESCI avers that the Claims Court wrongly
denied its breach of contract claim. Appellant contends
that its claim for breach of contract related to Contract I
is not time-barred, because of equitable tolling under 41
NWOGU v. US 8
U.S.C. § 7104(b) and 41 U.S.C. § 7103.8 Appellant ap-
pears to argue that, although it previously brought an
equitable adjustment claim related to Contract I before
the ASBCA, it had never brought a breach of contract
claim related to Contract I and that the statute of limita-
tions relating to that claim should be tolled for the time
ESCI was seeking to exhaust its administrative remedies
under the equitable adjustment claim. The Government
argues that, regardless of whether ESCI’s claims were
tolled while it litigated claims before the ASBCA, ESCI’s
Claims Court Complaint was still untimely, among other
things.9
Third, ESCI argues that the Claims Court erred in
failing to hold an evidentiary hearing to determine
whether the Government breached an oral settlement
agreement. The Government contends that the first time
ESCI ever alleged there was an oral settlement agree-
ment was in January 2010 and that ESCI has failed to
cite any evidence supporting its allegation.
Recent events force us to vacate the Claims Court’s
decision regarding the Government’s right to setoff. On
June 6, 1998, the COFD terminated Contract II for de-
fault on the part of ESCI. Based on the understanding
8 41 U.S.C. § 7104(b) was previously codified at 41
U.S.C. § 609(a) and 41 U.S.C. § 7103(a)(4)(A) was previ-
ously codified at 41 U.S.C. § 605(a).
9 The Government further contends that the
ASBCA addressed all of the claims ESCI submitted to the
Claims Court and that Appellant’s election to appeal
various COFDs to the ASBCA precluded ESCI from
challenging those COFDs to the Claims Court. Addition-
ally, the Government argues that ESCI did not raise the
issue of equitable tolling of 41 U.S.C. § 7104(b) before the
Claims Court and that, as a result, the argument is
waived. As discussed below, even if we entertain ESCI’s
argument it is unpersuasive.
9 NWOGU v. US
that Contract II was properly terminated for default, a
COFD awarded the Government $167,691.75 in repro-
curement costs and liquidated damages. Although the
Claims Court held that the Government was entitled to
set off the amount owed to ESCI under Contract I with
the amount the COFD found ESCI owes the Government
under Contract II, the Claims Court explained:
[T]he setoff monies owed for reprocurement costs
and liquidated damages could be impacted by a
decision in favor of the plaintiff in ASBCA Case
No. 51722 should the [ASBCA] overturn the
Navy’s termination for default. The parties and
the court only can speculate at this time as to how
the ASBCA will rule and what impact the ruling
might have on the [Government’s] setoff. [ESCI’s]
appeal to the ASBCA on the default termination
remains pending as of the date of this opinion . . . .
At this point in time, . . . until the COFD termina-
tion decision is overturned, the government pos-
sesses a right of setoff, based on the second COFD
in Contract II.
Nwogu, 94 Fed. Cl. at 659.10 In September 2011, almost
a year after the Claims Court issued its decision in this
case, the ASBCA ruled that Contract II was not properly
terminated for default and converted the termination to
one for convenience of the government. Envtl. Safety
Consultants, Inc., ASBCA No. 51722, 11-2 BCA ¶ 34,848
at 171,433. That ASBCA decision drastically changed the
posture of the Government’s asserted setoff defense. As a
10 Similarly, the Government stated in its brief,
which was filed before the ASBCA’s September 2011
decision, that if the then-pending appeal was sustained,
the Government might have to re-evaluate whether, or to
what extent, setoff is available. Gov’t Br. at 15-16; 18.
NWOGU v. US 10
result, we vacate the Claims Court’s opinion with respect
to the setoff issue.11
However, we affirm the Claims Court’s decision re-
garding ESCI’s breach of contract claims. The CDA
requires a contractor to appeal a COFD “within 90 days
from the date of the receipt of the contracting officer’s
decision” to an agency, such as the ASBCA, or, “in lieu of
appealing the decision of a contracting officer under [41
U.S.C. § 7103] to an agency board,” a contractor may
bring an action “directly on the claim in the United States
Court of Federal Claims,” within 12 months. 41 U.S.C.
§ 7104. ESCI and the Government terminated Contract I
in March 1992. ESCI brought a claim to the CO relating
to that termination in June 1992 and the COFD regarding
that claim was issued on February 2, 1994. We dismissed
the appeals to this court related to that COFD on March
29, 2006. Yet, it was not until April 28, 2009 that ESCI
filed its breach of contract and quantum meruit claims
related to Contract I with the Claims Court. Even if we
did toll the 12-month statute of limitations associated
with bringing claims to the Claims Court, 41 U.S.C.
§ 7104(b), for the time ESCI was litigating its other
claims related to the February 1994 COFD, its Claims
Court Complaint was still untimely. Therefore, the
11 We note, however, that ESCI misinterprets the
ASBCA’s previous decisions regarding setoff. The ASBCA
has never ruled that the Government is not entitled to
setoff. Rather, quite to the contrary, the ASBCA has
acknowledged that the Government may be entitled to
setoff, but that the right to setoff was not directly relevant
in the June 2002 proceeding regarding Contract I. See
Envtl. Safety Consultants, Inc., ASBCA No. 53485, 02-2
BCA ¶ 31,904, at 157,612.
11 NWOGU v. US
Claims Court properly held that ESCI’s breach of contract
and related claims were untimely.12
Additionally, we affirm the Claims Court’s decision
that no further factual inquiry was needed to decide there
was insufficient evidence to support ESCI’s allegation
that the Government breached an oral settlement agree-
ment. ESCI concedes in its brief to this court that it “has
no written memorandum of the terms and conditions”
regarding the alleged settlement agreement. ESCI Br. at
12. As the Claims Court correctly stated, ESCI “has not
demonstrated the existence of the alleged agreement, nor
that there was a meeting of the minds on the critical
elements of the alleged agreement, or that any individual
with the requisite authority consented to such an agree-
ment on behalf of the government.” Nwogu, 94 Fed. Cl. at
656 (citing La Van, 382 F.3d at 1346). ESCI’s allegation
is baseless and was rightly rejected.
Last, to the extent the Claims Court found it lacked
jurisdiction to order payment of the ASBCA judgment, we
reverse. The Tucker Act grants jurisdiction to the Court
12 We also reject ESCI’s argument that the statute of
limitations requiring a contractor to submit a claim to a
CO within six years from the date a claim accrued should
be tolled to allow the company to bring a new claim re-
lated to Contract I or Contract II. 41 U.S.C.
§ 7103(a)(4)(A) (“Each claim by a contractor against the
Federal Government relating to a contract and each claim
by the Federal Government against a contractor relating
to a contract shall be submitted within 6 years after the
accrual of the claim.”); see 41 U.S.C. § 7103(a)(1) (“Each
claim by a contractor against the Federal Government
relating to a contract shall be submitted to the contract-
ing officer for a decision.”). ESCI offers no convincing
reason why it could not have submitted its claims to a CO
within the six-year window or should otherwise be enti-
tled to equitable tolling.
NWOGU v. US 12
of Federal Claims “to render judgment upon any claim
against the United States founded . . . upon . . . any Act of
Congress . . . .” 28 U.S.C. §1491(a)(1). “The Tucker Act, of
course, is itself only a jurisdictional statute; it does not
create any substantive right enforceable against the
United States for money damages.” United States v.
Testan, 424 U.S. 392, 398 (1976). Therefore a claimant
“must . . . identify a substantive source of law that creates
the right to recovery of money damages against the
United States.” Rick’s Mushroom Serv., Inc. v. United
States, 521 F.3d 1338, 1343 (Fed. Cir. 2008). “[A] statute
creates a right capable of grounding a claim within the
waiver of sovereign immunity if, but only if, it ‘can fairly
be interpreted as mandating compensation by the Federal
Government for the damage sustained.’” United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)
(quoting United States v. Mitchell, 463 U.S. 206, 217
(1983)). “This ‘fair interpretation’ rule demands a show-
ing demonstrably lower than the standard for the initial
waiver of sovereign immunity.” Id.
ESCI identifies the Contracts Disputes Act, 41 U.S.C.
§§ 612 (a) and (b) (now codified at 41 U.S.C. §§ 7108,
effective Jan. 4, 2011), as mandating payment of money
by the United States government and thus providing
jurisdiction under the Tucker Act. Sections 612(a) and (b)
state:
(a) Judgments[:] Any judgment against the United
States on a claim under this chapter shall be paid
promptly in accordance with the procedures pro-
vided by section 1304 of title 31.
(b) Monetary awards[:] Any monetary award to a
contractor by an agency board of contract appeals
shall be paid promptly in accordance with the pro-
cedures contained in subsection (a) of this section.
13 NWOGU v. US
Id. We conclude that this statute is money-mandating.
White Mountain Apache Tribe, 573 U.S. at 472. This
provision therefore creates a substantive cause of action
for Mr. Nwogu’s claim for payment of the ASBCA judg-
ment, cognizable under Tucker Act jurisdiction.
III.
For the reasons discussed above, and because we find
that Mr. Nwogu’s remaining arguments are without
merit, we affirm-in-part, reverse-in-part, vacate-in-part,
and remand the case to the Claims Court for enforcement
of Mr. Nwogu’s award of $93,989, plus appropriate inter-
est, thereon.
AFFIRMED-IN-PART, REVERSED-IN-PART,
VACATED-IN-PART, AND REMANDED.
No Costs.