Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 1 of 10

IN THE UNITED STATES COURT OF FEDERAL CLAIMS BRICKWOOD CONTRACTORS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-695C (Chief Judge Damich)

DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits its reply to plaintiff's response to our motion to dismiss. ARGUMENT I. Defendant's Motion Is Properly Styled As A Motion To Dismiss It is well-established that the Contract Disputes Act ("CDA") statute of limitations, 41 U.S.C. § 609(a)(3), is a jurisdictional prerequisite to the exercise of authority by the Court of Federal Claims. Bath Iron Works Corp. v. United States, 20 F.3d 1567, 1572 (Fed. Cir.1994). This is because the statute of limitations is an express limitation on the Tucker Act's waiver of sovereign immunity. Inter-Coastal Xpress, Inc. v. United States, 296 F.3d 1357, 1365 (Fed. Cir. 2002). That is, the United States has not waived its sovereign immunity for claims filed by contractors more than twelve months after the date of receipt of the contracting officer's decision, thus the Court lacks jurisdiction to consider these claims. Accordingly, our motion is properly styled as a motion to dismiss for lack of jurisdiction pursuant to RCFC 12(b)(1). Brickwood Contractors, Inc. ("Brickwood") asserts that "[a]ccepting the allegations of the complaint as true, plaintiff has met its burden of establishing this court's subject matter

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 2 of 10

jurisdiction." Pl. Br. 2. Brickwood supports this assertion by pointing out that in paragraph three of the complaint, it alleged that jurisdiction is proper pursuant to the Tucker Act, 28 U.S.C. § 1491, and the CDA. When considering a motion to dismiss, it is true that this Court must assume that all undisputed facts alleged in the complaint are true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, the Court has no obligation to accept Brickwood's jurisdictional allegations. In fact, it is this Court's obligation to examine its own jurisdiction at all stages of the proceeding. Matthews v. United States, 72 Fed. Cl. 274, 278 (2006) (citing Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961, 967 (Fed. Cir.1993)). If the Court finds that it lacks jurisdiction, it must dismiss the claim. Id. II. Defendant Has Provided Ample Evidence That The Statute Of Limitations Has Expired As we set forth in our motion to dismiss, the CDA provides that an action pursuant to a CDA claim "shall be filed within twelve months from the date of receipt by the contractor of the decision of the contracting officer concerning the claim." 41 U.S.C. § 609(a)(3). The evidence set forth in our motion demonstrates that Brickwood received the notice of termination for default ("notice") on September 15, 2005, but did not file its complaint in this action until October 10, 2006, more than twelve months after the date of receipt. Brickwood asserts that Riley & Ephriam Construction Company, Inc. v. United States, 408 F.3d 1369 (Fed. Cir. 2005) is "completely adverse to the position stated in [our] motion to dismiss" because "[i]t is clear from the holding in Riley that the mere transmission of a facsimile is insufficient evidence of actual receipt of that decision by Brickwood." l. Br. 5. Brickwood is incorrect. In Riley, the only evidence of receipt produced by the defendant was a fax cover sheet, phone records indicating a 2.6 minute call to the contractor's law firm, and a statement

2

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 3 of 10

from the contracting officer that the machine indicated electronically that the transmission was successful. Riley, 408 F.3d at 1372. The court found that "receipt by the contractor cannot be inferred from the contracting officer's statement that the machine indicated a successful transmission." Id. at 1373. In the present case, we have more than the contracting officer's statement that the transmission was successful - we also have a facsimile confirmation sheet showing that the transmission was successful. Attachment A to Kruskie Decl. While we admit that the holding in Riley suggests that a facsimile confirmation sheet alone may not be sufficient evidence of receipt, the court in Riley explicitly stated that it "need not address whether a confirmation sheet is evidence of receipt under the CDA because the government cannot produce a fax confirmation sheet." Riley, 408 F.3d at 1372 (internal quotation marks omitted). Accordingly, Riley is not "completely adverse" to our position because it did not specifically address a situation in which, as here, the defendant produced a facsimile confirmation sheet. Moreover, in our motion to dismiss, we produced much more evidence than the facsimile confirmation sheet to prove that the notice was received via facsimile on September 15, 2005. The court in Riley suggested that in order to confirm receipt by a contractor of a facsimile transmission, all the Government has to do is make a telephone call to the contractor or its agent to affirm actual receipt. Id. at 1373. In the present case, Mr. Kruskie did just that. Immediately after successfully sending the notice to Brickwood via facsimile, Mr. Kruskie attempted to telephone Brickwood to confirm receipt, but the telephone call was not answered.1 Kruskie Decl. ¶ 4. Additionally, four attempts to deliver the notice to Brickwood's address of record via

In its response to our motion, Brickwood provides no explanation as to why the telephone call placed to Brickwood's telephone number of record was not answered. 3

1

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 4 of 10

Federal Express were made, but all four of those mailings were returned undelivered. Kruskie Decl. ¶ 5.2 Mr. Kruskie mailed the termination notice via certified mail on September 15, 2005. Kruskie Decl. ¶ 6. Finally, the United States would have attempted to hand deliver the notice, as it had done with past notices, had Brickwood been on the project site at the time. Kruskie Decl. ¶ 7. As we stated in our motion to dismiss, all of this is evidence not only that Brickwood received the notice on September 15, 2005, but knew that Mr. Kruskie had to confirm receipt, and made every possible effort to prevent him from doing so. Because the notice was received on September 15, 2005, this action was untimely filed on October 10, 2006 and should be dismissed. CONCLUSION For these reasons, and the reasons stated in our motion to dismiss, we respectfully request that the Court dismiss the complaint.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director

Brickwood asserts that the termination notice sent by certified mail was improperly addressed using the incorrect zip code. Kalos Decl. ¶ 6,7. We note, however, that the four Federal Express deliveries were addressed to the correct address with the correct zip code. See Exhibit 1, attached. The label in the top left corner of page 1 of Exhibit 1 shows the correct zip code, 20109. Note that pages 2 and 3 of Exhibit 1 are two copies of the same Federal Express envelope showing the numerous delivery attempts. Two copies are provided in order to account for the overlapping delivery confirmation stickers, which could not be removed from the envelope without damaging the stickers or the envelope. 4

2

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 5 of 10

/s/ DONALD E. KINNER DONALD E. KINNER Assistant Director /s/ MEREDYTH D. COHEN MEREDYTH D. COHEN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 353-7978 Fax: (202) 514-8624 Attorneys for Defendant

Of Counsel: WILLIAM ROBINSON Federal Bureau of Prisons

March 6, 2007

5

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 6 of 10

EXHIBIT 1

Z'~"'C;!~

. .
(

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 7 of 10

>,

I

~Lr)c::I:: -LU ""aiV') 0 to

~O~~

'"-4$)

=~

~-

tf. ! a
a:
I

~ .--I C ><~~~~~ ~---

< ~~~~ii~

Z

; ::;.. 0

W

C,.,;):) ~~~= = -e
-~

0

r
:§
/" ~
M.U ~ I

.~ u

"E m

-~CD

-g1:::J

a:
-= ~

u-cs.

~
~ .".. ~~: I c::I:: ::::. I

~ .~~
-=

--=

~

.~~

=

~ ~

-~
!

~;1',

l

,!j
.1:
"Q X ar.g

10
i. ~~
~ ~ j Ii

!2~s
~ .~ J

:f:i
~J ~I

0 ~ ci~ ~.f Ji "-~~ ~~~ -c.~ m]~
a

6 .815ij,
~ u -~ ~,!j~" ti.9~j

i "

-~,:"

0 -.." ~ '< t,-" ' I
I

t

CD

~ ~ ~ ~ ~ -~ -~ = = ; ~ ~--~
=

=; ~, =! ~ =:
~,

I

.~

..~Q ~
-~ -"

,!j a,!j~ -c~ ,f~~,f:7, -co 0 ~ ~ 0 e ..,!j~~ ~ U Is .~
~

9 ,f.~ -c~"'~. i1U~:f

t

~~!. iV ",.~j ~g ME

G ".~ .-g

0
,,~~.,

= .: 0 =
.-u

I

~ '' ~ CD

cs. ~

~
~
~ ~

S

WI

-= =; =" ~ =

-In -';

I
~

TC'\I

I.~

..~ ~ ..~

=~

~

~

..-~co. E ~~." U a~ ca ~E A. '=: ~~ = 0 ID~! ~ 0

i~]

In 1S.E t. g, ~~.go cl:\. = a; ~ !l" >.,,~ ~ c. ~ c~ g = ".. "0'- =
g..

O
., *

LL_i1:

~l!.~. j I 12. ~.
g ~

1:
9!
'9-

--.~~

O:i

~~ 1 ~~~ ~,jj~ 'g~iNll i t I ~~~ ~j J ID ,~~ ~ If~.f. ~ ~~.§§~ I ~ . ~ If ~~! =
0 ~ ..~ 1 0
Co

= .e > U ~. -.~ ~ 0 .u' "~8 c eOu :: ~~N~ -~ ~ 0 ~ f:f~~81.-, ~~~ ~ I "'~8:O ca~ -~~~ g :>"~~,,"i' ~ 0 ~ ~ !1 ~ -= ~~. Z~l!~ ~~ u

.-; ~.

-0

X ---n
"' ~
-

c-

j,

.
"" ~..,

~, ~

ITl rtJ/

..

~
~ , '--\
-'v'r"

C:----, ~

~'Ul
,oJ

! 4

J

ru
.~Wo. :f~~
,=z

c

~ "-

~

N,
rr
f''"

rtJ

~5
-~
-.,.
If

1

UJ ~

,

..-~ h "~

r~
;::::::

..n ~~i

cr"'

I~ I)

p§
...~ Ei
~:s ~.~ ' ~O)
.~~ .~ .c
~O)

'/

:--e
r::::s ,

./ (

~
~

~

-

fT1

~~
UJ

~~~
55 ~:::

~

'
(

!
~
-N

"Q ..i",~

=
~

-:e.~
M

U-C~ '" j
~~~

.

~

f

.sa """"
E~
O)~~

\. >"~

~1
OJ 0)

.E'~ ~
~

)

-:!;gJ"

~;~

.as

~ 00 ~

".t',;"

..
-OJ ~ = ~~ ~
~ ~ 0)

~
'.- )

::'~:c: ;;:1"
"5::::

I

--

:c:,~(

co m.c

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 8 of 10

-

---~-

r
Document 18 Filed 03/06/2007

Case 1:06-cv-00695-MMS

~
'

Page 9 of 10
1!1 v

~

"

~

.

'"'"

-"'TIber.

led.)
Jble.

{
t

.pt*
~

@

!

DlJlIi..

!

37767827

Case 1:06-cv-00695-MMS

Document 18

Filed 03/06/2007

Page 10 of 10

CERTIFICATE OF FILING I hereby certify that on March 6, 2007, a copy of the foregoing "DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Meredyth D. Cohen