Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:05-cv-01248-LJB

Document 10

Filed 05/01/2006

Page 1 of 17

No. 05-1248C (Judge Bush)

IN THE

UNITED

STATES

COURT

OF

FEDERAL

CLAIMS

REDWOOD

FURNITURE

CO. LTD., e__~t.

Plaintiffs, v. THE UNITED STATES,

Defendant,

DEFENDANT'S

MOTION

TO

DISMISS

AND

APPENDIX

(PAGES

1-12)

PETER D. KEISLER Assistant Attorney DAVID M. Director COHEN

General

DONALD E. KINNER Assistant Director OF COUNSEL: DEREK S. SHERRILL Trial Attorney Air Force Legal Services Agency Commercial Litigation Division 1501 Wilson Blvd., Room 606 Arlington, VA 22209-2403 (703) 696-9087

KENT G. HUNTINGTON Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8 TM Floor !I00 L Street, N.Wo Washington, D.C. 20530 Tel. (202) 353-7961 Fax: (202) 353-7988 Attorneys For Defendant

May

l,

2006

Case 1:05-cv-01248-LJB

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TABLE

OF CONTENTS PAGE (S)

DEFENDANT'S ISSUES

MOTION

TO DISMISS

.................................

1 2 2 5 6

PRESENTED OF OF

.............................................. ............................................ ............................................

STATEMENT STANDARD ARGUMENT I.

FACTS REVIEW

...................................................... Redwood's The ASBCA Election To Pursue Its Remedies Before Is Binding And Irrevocable .................

6

II.

The Complaint Should Be Dismissed For Lack Of Jurisdiction Because It Was Filed More Than 12 Months After Redwood Received The Contracting Officer's Final Decision ............................. ...................................................

9 ii

CONCLUSION

Case 1:05-cv-01248-LJB

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TABLE CASES

OF

AUTHORITIES PAGE( S

Bonneville Assocs. v. United States, 43 F.3d 649 (Fed. Cir. 1994) .......................... BorouGh of Alpine v. United States, 923 F.2d 170 (Fed. Cir. 1991) Cedars-Sinai Med. Cent. v. Watkins, ii F. 3d 1573 (Fed. Cir. 1993) Cosmic Constr. Co. 697 F.2d 1389 v. United States, (Fed. Cir. 1982)

6, 7

...........................

I0

...........................

5

...........................

6

Griffy's Landscape Maint., LLC v. United States, 51 Fed. Cl. 667 (2001) ................................... Hamza v. United States, 36 Fed. Cl. i0 (1996)

5

.................................

5, 9

IMS

Servs., Inc. v. United States, 32 Fed. C!. 388 (1994) ................................... Smith Constr. Co., Inc. v. United States, i0 CI. Ct. 540(1986) ..................................... Associated Contractors, Inc. v. United States, Fed. Cl. 809 (1994) ................................... Hous. Assoc. v. United States, Cl. 454 (1994) .................................. Inc. (Fed. v. United States, Cir. 1988) ...........................

6

Mark

8

Marshall 31 Nat'l

7

Leased 32 Fed.

5

National NeiGhbors, 839 F.2d 1539 Policy

7

Analysis Co., Inc. v. United States, 50 Fed. el. 626 (2001) ................................... v. Army & Air Force Exch. Serv., F. 2d 746 (Fed. Cir. 1988) ...........................

9

Reynolds 846

5

Case 1:05-cv-01248-LJB

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Sharman Co., Inc. v. United 2 F.3d 1564 (Fed. Cir.

States, 1993) .............................

9

Svnernet Corp. v. United States, 41 Fed. Cl. 375 (1998) ................................... Trauma Serv. Group v. United States, 104 F. 3d 1321 (Fed. Cir. 1997)

7

..........................

5

Tuttle/White 228 Ct. United States 445 U.S. States 312 U.S. Schlosser 705 F.2d

Constr. v. United States, Cl. 354 (1981) ................................... v. Mitchell, 535 (1980) ...................................... v. Sherwood, 584 (1941) ...................................... Co, 1336 Inc. v. United States, (Fed. Cir. 1983) ...........................

8

6

United

5

W.M.

9

STATUTES 41U.S.C 41U.S.C 41U.S.C 41U.S.C 41U.S.C 41U.S.C 601, 606 et. seq ............................. 2, 4, 5, 6 6, i0

...........................................

607(d) 609 (a)(1) 609(a)(3) 613

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IN REDWOOD

THE

UNITED CO.,

STATES

COURT

OF

FEDERAL

CLAIMS

FUPd~ITURE

Plaintiffs, Case UNITED STATES, Defendant. DEFENDANT'S Pursuant Court of to Rules Claims 12(b) MOTION (i) and TO DISMISS (6) of the the Rules States, No. 05-1248C (Judge Bush)

12(b)

Federal

("RCFC"), that the

defendant, dismiss

United

respectfully complaint alternative, be granted. for

requests lack for The of

Court matter

plaintiffs' or, which in the relief to already to the can

subject

jurisdiction upon

failure Court

to state not

a claim

does

possess the

jurisdiction have

entertain elected Armed the of the

plaintiffs' to appeal Services plaintiffs contracting does not

complaint the Board

because

plaintiffs final

contracting of Contract to file

officer's Appeals their

decision

("ASBCA").

Additionally, 12 months this

failed

complaint

within

officer's

final

decision. to

Accordingly, the

Court and relief the to our the

possess have

jurisdiction not In otherwise support of

entertain

complaint, which upon

plaintiffs may be

stated our and

a claim we

upon rely

granted. the

motion, the

complaint, brief.

following

brief

appendix

attached

Case 1:05-cv-01248-LJB

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ISSUES i. Whether the Court when

PRESENTED jurisdiction already to entertain to pursue

possesses they have the is (3)

plaintiffs' their

complaint remedies the

elected

contract 2. Whether to after

before

ASBCA. jurisdictionally barred filed was more than

complaint 609(a)

pursuant months

41 U.S.C. the

because

it was decision

contracting

officer's

delivered.

STATEI~ENT Plaintiffs, Tuncay Ticaret Redwood Furniture

OF FACTS Company, Estetik this Mobilya, action to that 41 the and

(collectively

"Redwood"), final

filed decision

challenge U.S.C.

a contracting e_!t.

officer's Compl. (the the the

pursuant alleges

~ 601,

s_9_q. Air

~ 3, 6. Redwood "Air Air Force") Force

Department from Redwood for

of the in the 6,

Force and

purchased did not

furniture pay ~[ 7-

2002

that that

fully Compl. the for was

Redwood 13. On

furniture 2004,

agency

received. a claim to

August

Redwood Lt.

submitted Col. Paul The

Air unpaid allegedly Compl.

Force's furniture delivered

contracting in the

officer, of

Bugenske, furniture Base,

amount Air I. 30,

$266,000. at Incirlik

to the App.

Force

Air

Turkey.

~ [~ 4, 7-8;

On November decision because denying it did

2004,

the

contracting Redwood's to

officer claim support

issued was its

a final

Redwood's not supply

claim.

denied claim and

documentation

~ "App.

" refers

to the appendix

attached

this

brief.

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because properly. final

the

furniture App. I. to Lt.

could Col. at

not

otherwise

be

accounted

for the

Bugenske Redwood's 30, Guney 2004,

personally furniture and he was App. into

delivered store in

decision Turkey

Redwood

Incirlik, Maj. James

on November and Ms.

accompanied Lt. for to by Air Ms. Force Col.

by

O'Quinn the the

Tansal. translated

11-12. Turkish

Bugenske Redwood Redwood's Guney

had and

final meaning

decision of the

document Mr.

was Yilmaz

explained Estetik, by the

on-site

representative,

Tansal, Air

a civilian Base. that Id. it

interpreter The

employed

at

Incirlik informed ASBCA

contracting appeal Court, 2. its

officer's claims 12 to

final

decision the its

Redwood

could

either of

within

90 days, final 28,

or to

this

within

months

receipt

of the

decision. 2005, had

App.

On February contracting November ASBCA 3, of and 30,

Redwood the its

acknowledged agency's notice its

that

the on the App.

officer 2004 it

issued it filed

final

decision with

when

of appeal ASBCA

when

simultaneously No. 54944,

filed ~ 3).

complaint. for stated

5 (ASBCA

Compl. the

Specifically, Redwood

purposes that:

establishing

ASBCA's

jurisdiction,

This is a timely appeal from the Contracting Officer's Final Decision, dated November 30, 2004, which denied Redwood's claim for payment for certain furniture delivered to the Government. Redwood's Notice of Appeal was filed with the Armed Services Board of Contract Appeals (the ~'Board") on February 28, 2005. The Board has jurisdiction over

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this appeal pursuant to the Contract Disputes Act of 1978, 41 U.S.C. ~ 601, et seq. App. 5.; see also ASBCA App. 2-3. with one make are notable in their exception, present identical. with Compl. background in both claim and Redwood

In its made the

complaint,

same

allegations the (ASBCA identical complaints. I alleges a quantum are

as they complaints Compl. facts Sere No.

complaint. Compare 7-35.

Indeed, 6-9

virtually ~ 4-27)

App.

54944,

Virtually of both count

are id.

recounted

in the

sections

Additionally, of contract"

complaints, count

a "breach meruit

II alleges Although

claim. similarities remains ASBCA but in the two

there

striking

complaints difference. alleged the

filed As

by Redwood, noted above, of it

there in its

one

significant Redwood "the 30, 2004." a

complaint, to

timeliness Officer's allegedly with officer the

appeal Decision,

by referring dated that

Contracting App. timely 5. This appeal

Final

November had when i.e~,

established ASBCA within final

Redwood of

filed the by

90 days

contracting 28, 2005.

issued when Redwood

the

decision, its

February on the

However, 2, 2005, of it 2,

Redwood used In

filed

present date to

complaint, calculate Redwood

December

a different the present

jurisdiction alleges on that

this

Court. the

complaint,

received 2004.

contracting ~ 5. This is

officer's in stark

final

decision to

December

Compl.

contrast

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Redwood's decision that 2004.

ASBCA was

complaint, on

which

acknowledges 30, 2004, and

that

the

final alleges December 2,

issued did not

November the

nowhere until

Redwood

receive

final

decision

STANDARD "The party Med. burden of establishing the ii

OF

REVIEW lies with the

jurisdiction jurisdiction." 1583 (Fed. 104 Cir. F.

seeking Cent. v.

to invoke Watkins, Serv.

court's

Cedars-Sinai 1993); 1324 Serv.,

F. 3d

1573,

accord (Fed. 846

Trauma Cir.

Group

v. United Reynolds Cir.

States,

3d 1321, Exch. must

1997)

citin~ (Fed.

v. Arm V & Air The

Force

F. 2d 746,

748

1988). is suit

plaintiff As

demonstrate United consents (1996) (1941)). The 601-613, implied Federal United

that is be

its

complaint from v.

timely. save [to

a sovereign, extent 36 Fed. U.S.

the it 13

States to

"immune

the

that] Cl.

sued." United

Hamza States

United

States, 312

I0,

(quoting

v. Sherwood,

584,

586

Contract waived contracts contract

Disputes sovereign and

Act

of

1978 with

(the

"CDA"),

41

U.S.C. or hear v.

immunity this

regard

to express to LLC the

provided

Court

jurisdiction Maint., However, to be

disputes. 51 Fed. Cl.

Griffv's 667, 671

Landscape (2001). is

States,

Government's construed". Cl. 454, 460

waiver Nat'l

of sovereign Leased Thus, Hous. all

immunity Assoc. v.

"narrowly 32 Fed. the

United placed

States, upon

(1994).

conditions

-5-

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exercise the Court

of

this

Court's

jurisdiction

must See

be

satisfied States Co. v.

before

can 445

assert U.S.

jurisdiction. 538 1390 C1. is (1980); (Fed. 388,

United

Mitchell, States, United

535,

Cosmic Cir.

Constr. IMS

v. United Inc. v.

697

F.2d

1389,

1982);

Servs.,

States, Here,

32 Fed.

396

(1994). upon the CDA. 41 U.S.C. ~

jurisdiction se__9_q. with should the be

premised

601 e__~t, to comply

As we establish statutory dismissed

below,

because of

Redwood the CDA,

has failed its

prerequisites for lack of

complaint

jurisdiction.

ARGUMENT I. Redwood's Election To Pursue Its ASBCA Is Binding And Irrevocable By ASBCA, an appealing Redwood board possess The the contracting to pursue Remedies Before The

officer's its

final

decision remedies this this

to the before Court

elected of

contractual and,

agency not

contract

appeals

accordingly, to decide

does

subject only ASBCA,

matter

jurisdiction

litigation. remedies When CDA,

forum the

available forum

to Redwood initially final to seek of

to pursue selected. under from

its

is the

Redwood

appealing

a contracting must board decide or

officer's whether from the (I); Cir.

decision remedies Federal Assocs.

the the 41

a contractor agency

appropriate U.S.C. State~s,

Court

Claims.

~ 606,

607(d), 649, 653

609(a) (Fed.

Bonneville 1994).

v. United

43 F.3d

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The has held

United the CDA

States

Court

of

Appeals

for to

the

Federal a decisive the

Circuit choice

requires "Under the

a contractor Election

make

between election does not

forums. of

Doctrine, alternative, dual avenues

binding as such, a

forums

is an

either-or with

and, for

provide

a contractor adverse 839

contesting Neiahborsr

contracting Inc. accord United v.

officer's States,

decision." 1539, at 1542 651,

National (Fed. 652;

United

F.2d

Cir.

1988); Corm. v.

Bonneville States, makes final may 41

Assocs., Fed. Cl.

43 F.3d 375,

Svnernet once

386

(1998). to appeal

Thus, the

contractor officer's contractor of Federal It is forum that

a binding decision

election to the pursue

contracting of appeals, the the

appropriate its same

board

no longer

claims 43 F.3d

before at in 653.

Court

Claims. the

Bonneville

Assocs., initiation

contractor's the

of a suit pursuing

a proper same claims v.

precludes forum.

contractor Marshall

from

the

in an alternate United States, Inc. Once of

Associated 814-15 839

Contractors, (citing 1542

Inc. National

31 Fed.

Cl.

809, States, elects the elect

(1994) F.2d

Neiqhbors, 1988)). board

v. United

1539,

(Fed. before

Cir. a

a contractor appeals, later the

to bring

an appeal is bound by

contract and Claims cannot

contractor to bring Id.

that Court of

decision Federal

a suit Here,

in the Redwood

upon

same

matter.

elected

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to pursue appeal

its

remedies board.

at

the

ASBCA

when

it

filed

its

notice

of

with The

the

App.

3-4. requires and i0 that a contractor's Mark 544 Smith (1986). choice Constr. Advice of the of

election "informed, v. United in

doctrine knowing States, final

forum Co.r by

be Inc.

voluntary." Cl. Ct. of 540,

the

agency

its

decision

a contractor's example, in Mark

choice Smith,

fora Court

satisfies ruled that

this the

requirement. contractor based upon

For made the

an

"informed, in the

knowing contracting rights

and

voluntary officer's appeal. 231 Ct.

election" final Id~ Cl.

notice the Constr. also

decision

delineating Prime see

contractor's Co. v.

to

at 545 782,

(~uotina (1982)); Cl.

United

States, v.

784

Tuttle/White F.2d 644,

Constr. 646

United Here,

States, the

228

Ct.

354,

356; final

656

(1981). and right to

contracting on November the 2. CDA

officer's 30, 2004,

decision, Redwood or the of

dated

delivered appeal Claims. informed, Ct. at

informed the ASBCA

of its Court

under App.

to either Redwood's voluntary.

of Federal was Co., i0 Cl. is

Thus, and

election Mark Smith

remedies Constr.

knowing

545. and

Accordingly, irrevocable.

Redwood's The

forum

selection bars

decision Redwood's

binding

election

doctrine

complaint.

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The Complaint Should Be Dismissed For Lack Of Jurisdiction Because It Was Filed More Than 12 Months After Redwood Received The Contractinq Officer's Final Decision It is jurisdiction authorized States, Inc. It well-settled pursuant contracting 1564, States, to that the a prerequisite CDA is a final Co., 1993); to the exercise of

decision Inc. W.M. (Fed. appeal v.

by a duly United Co,

officer. 1568-69 705

Sharman Cir.

2 F.3d

(Fed. F.2d

Schlosser Cir. of

v. United

1336, that

1338-39 a timely must

1983). a

is equally

well-established officer's date of final the

when 12

contracting months

decision

be filed the

within

of the

contractor ~609(a)

received (3);

contracting 36 Fed. Cl. of

officer's 14. the

decision. with

41 U.S.C. this

Hamza, is the

Compliance waiver of

statutory immunity

time provided of

limit in

a condition CDA and a an

sovereign to this 36

prerequisite action. renders and not

Court's Cl.

exercise at 14 ("the

jurisdiction lack of timely 'final and

over

Hamza, the

Fed.

filing conclusive

contracting to review this of

officer's in any line is

decision forum'"). of precedent

subject

Although month been has statute

Court's

holding in

that

the has

12 not

limitations see id., we

jurisdictional that "the

nature

overturned, held that the of may the

recognize

Federal does but upon v.

Circuit not rather which is

CDA's

one-year

limitations

period

implicate a matter relief

court's

subject

matter

jurisdiction," a claim Inc.

a plaintiff's be granted.

failure Policy

to state

Analysis

Co.,

United

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States, United

50 Fed. States, we

Cl. 923

626, F.2d

627 170,

(2001) 171-72 request

(citin~ (Fed. the (I)

Borough

of Alpine

v.

Cir.

1991)). of the

Accordingly, complaint Here, 2004. App.

respectfully to both received 12.

dismissal

pursuant Redwood 3-9,

RCFC the

!2(b) final

and 12(b) (6). on November the Force final 30, decision who

decision of Air own

ii, by the

Redwood's

receipt of the

is established delivered ASBCA. as the it to

declarations and by

officials at the 30,

Redwood

Redwood's Redwood in the date

pleadings November and, date did

App. date

11-12. to allege

Specifically, jurisdiction that that

used ASBCA the

2004

in so doing, upon which it

implicitly received

acknowledged the final aver

was

decision. in its ASBCA 30,

Although pleadings 2004, the

Redwood that

not ~ the

specifically final decision

it '~received the logical date

on November it did that

it remains upon ASBCA

conclusion because establish 2004" date

that

receive date

decision in the See

that

of where the was of to

is used

complaint

to 30,

board set 41

jurisdiction. forth U.S.C. a claim by Redwood ~ 606. with

App.

5. The with only

'~November the authorizes 90 See days id.

to comply 606

requirements contractor receip_~

Section an agency

a of

file

board

within

of the it

contracting that and

officer's Redwood waited

final received 367 in

decision. the final i.e., Court

Here, on November

is clear 2004,

decision more than

30, before

then its

days, this

12 months,

filing

complaint

on

December

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2,

2005. to

Pursuant file with

to the of

RCFC

6(a), the

for day to

purposes of the is

of act

computing or event

the from the it Based

time which last falls upon filed

Court,

the day on the no

period of the

time

begins

run

not

counted,

and unless 6(a).

computation Sunday,

period or

should

be counted FRCP

a Saturday, Court's later

legal

holiday.

rules, than

Redwood's

complaint I,

should 2005. this

have Because

been

Thursday, was not its

December filed

Redwood's jurisdiction officer's

complaint

timely,

Court

is

without

to consider decision.

challenge complaint

to the should

contracting be dismissed.

final

The

CONCLUSION For Court the foregoing the reasons, we respectfully request that the

dismiss

complaint. Respectfully PETER D. Assistant submitted,

KEISLER Attorney

General

DAVID M. COHEN Director

s/ Donald E. Kinner DONALD E. KINNER Assistant Director

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Of Counsel: DEREK S. SHERRILL Trial Attorney Air Force Legal Services Agency Commercial Litigation Division 1501 Wilson B!vd, Room 606 Arlington, VA 22209-2403 (703) 696-9087 s/ Kent G. Huntington KENT G. HUNTINGTON Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor ii00 L Street, N.W. Washington, D.C. 20530 Tel.: (202) 305-7561 Fax: (202) 353-7988

May

i, 2006

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CERTIFICATE I hereby foregoing 12)" of was certify that on May TO

OF I,

FILING 2006, a copy of the (pages of of this ithis the filing

"DEFENDANT'S filed filing

MOTION

DISMISS

AND

APPENDIX that

electronically. will be sent filing system. to

I understand all parties Parties

notice

this

by operation may access

Court's through

electronic the Court's

system.

s/ Kent Kent G.

G. Huntinaton Huntington