Free Motion to Transfer - District Court of Federal Claims - federal

Case 1:05-cv-01329-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SELPA CONSTRUCTION &, RENTAL CORP Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-1329C (Judge Braden)

DEFENDANT'S UNOPPOSED MOTION TO TRANSFER Pursuant to the Contract Disputes Act ("CDA"), 41 U.S.C. § 609(d), defendant requests that this case be transferred to the United States Postal Service Board of Contract Appeals ("PSBCA" or the "board") for consolidation with its closely related cases, Selpa Construction & Rental Corp., Under Contract No. 332495-00B-0221, PSBCA Nos. 5039, 5142, 5145. Plaintiff's counsel has

been contacted and has indicated that he consents to this motion. Statement of Facts In February 2001, the United States Postal Service ("USPS" or "Postal Service") awarded Selpa Construction & Rental Corp. ("Selpa") Contract No. 332495-00-B-0221 for the renovation and expansion of the post office facility in Fajardo, Puerto Rico. Compl. ¶¶ 4, 5. for default. On July 8, 2003, this contract was terminated

See Def. App. 3.1

On or about September 23, 2003, Selpa filed a six count complaint with the PSBCA that was docketed as PSBCA No. 5039.

"Def. App. ___" refers to the appendix attached to defendant's unopposed motion to transfer.

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Def. App. 1-6.

This complaint included plaintiff's claim for Id. at 6. Selpa, however, had failed to

extended overhead.

properly present many of its specific claims (including extended overhead) to the contracting officer for a final decision. Accordingly, the board directed Selpa to file its claims with the contracting officer for a final decision. On October 19 and 25, 2003, Selpa submitted its claims to the contracting officer for works not paid, changes, and extended overhead. See Def. App. 7, 9. On December 1, 2003, the

contracting officer issued final decisions denying Selpa's claims and issuing a modification in the amount of $4,105.88. 8, 9-10. On or about March 4, 2004, Selpa appealed these final decisions to the PSBCA. Def. App. 11-12. The PSBCA docketed On or about May Id. at 7-

this appeal twice, as PSBCA Nos. 5142 and 5145.

27, 2004, the Postal Service filed its answer with the board. Selpa, however, had apparently neglected to properly certify the extended overhead portion of its claims. Accordingly, the

PSBCA required that Selpa re-file this portion of its claims with the contracting officer with the required certification. Def. App. 13-14, 15. On or about November 10, 2004, in See

accordance with the instruction of the PSBCA, Selpa re-sent its extended overhead claims to the contracting officer, with the required certification. Def. App. 15-17. On December 22, 2004,

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the contracting officer again issued a final decision denying Selpa's claims for extended overhead. Def. App. 18-19. The

contracting officer concluded that the Postal Service had already granted compensation and/or time extensions for the delays at issue. Id. He noted that the modifications documenting those

grants included an agreement that the modifications constituted full and complete satisfaction for all direct costs, indirect costs, impact and delay costs. Id. Therefore, the contracting Id.

officer denied Selpa's claims for extended overhead.

While Selpa was to refile its extended overhead claims with the board, Selpa apparently failed to do so within 90 days of the contracting officer's final decision, as required by law. On

December 19, 2005, plaintiff timely filed in this Court an appeal of the contracting officer's final decision denying its claims for extended overhead. Argument Judicial efficiency requires the full equitable resolution of a suit in one judicial forum, when possible. Congress has

provided the means for this Court to accomplish a more efficient resolution of cases arising from the same contract, "filed in the United States Court of Federal Claims and one or more agency boards, for the convenience of parties or witnesses or in the interest of justice." 41 U.S.C. § 609(d).

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In Glenn v. United States, 858 F.2d 1577, 1579 (Fed. Cir. 1988), Mr. Glenn timely appealed the contracting officer's final liability decision to the ASBCA. While the liability appeal was

pending, the contracting officer issued a final quantum decision, which Mr. Glenn did not timely appeal to the ASBCA. Id. Upon

encouragement from the board, Mr. Glenn filed a timely appeal with this Court, and subsequently filed an unopposed motion to transfer the case to the ASBCA, pursuant to 41. U.S.C. § 609(d). Id. The motion was denied to avoid "`distort[ing] the appeal

procedure'" by allowing transfer to the ASBCA after the failure of a timely appeal to the board. Id. Mr. Glenn appealed. The

United States Court of Appeals for the Federal Circuit held that § 609(d) is not limited by a plaintiff's failure to file a timely appeal to an agency board. Id. at 1581. The appellate court

remanded the case to this Court with instructions to transfer Mr. Glenn's appeal to the ASBCA. Id. Upon transfer, the ASBCA

would "proceed to review the liability decision, and . . . the quantum decision, the former under its appellate jurisdiction, the latter under the aegis of a transfer for convenience of the parties under section 609(d)." Id.

As in Glenn, transfer of this case to the PSBCA is appropriate "for the convenience of parties." Further, because

of the possibility of duplicate or conflicting determinations in this case, transfer is also "in the interest of justice." For

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the foregoing reasons, defendant requests that the Court grant this motion for transfer to the PSBCA to be consolidated with Selpa Construction & Rental Corp., Under Contract No. 332495-00B-0221, PSBCA No. 50395. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Steven M. Mager STEVEN M. MAGER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L St, N.W Washington, D.C. 20530 Tele: (202) 616-2377 Fax: (202) 305-7643 Attorneys for Defendant February 17, 2006

Of Counsel: Michael F. Kiely Barbara H. Frazier United States Postal Service Law Department

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CERTIFICATE OF FILING I hereby certify that on this 17th day of February 2006, a copy of the foregoing "DEFENDANT'S UNOPPOSED MOTION TO TRANSFER" 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. the Court's system. Parties may access this filing through

s/ Steven M. Mager