LYDIA KAY GRIGGSBY, Judge.
In this Contract Disputes Act action, plaintiff, the Port of Authority of New York and New Jersey (the "Port Authority"), seeks a declaratory judgment requiring the United States Postal Service (the "USPS") to indemnify it from any damages that the Port Authority may pay in connection with a civil tort action currently pending before the Superior Court of Monmouth County for the State of New Jersey, pursuant to the terms of a lease agreement by and between the Port Authority and the USPS. Compl. ¶¶ 1, 6, 8-9; Mot. at 2. The government has moved to dismiss this action for lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"). For the reasons discussed below, the Court
In this Contract Disputes Act action, the Port of Authority seeks a declaratory judgment requiring the USPS to indemnify it from any damages that plaintiff may pay in connection with a settlement or judgment entered in a pending civil tort action regarding an automobile accident that occurred at the John F. Kennedy ("JFK") International Airport, and certain other relief. Compl. ¶¶ 1, 6, 8-9; Mot. at 2. Specifically, the Port Authority alleges in the complaint that the USPS has not satisfied its obligation under the terms of a lease agreement that the USPS entered into with the Port Authority to "indemnify and hold harmless Port Authority `from and against all claims and demands of third persons . . . arising out of the acts or omissions of Lessee [United States Postal Service], its officers, and employees . . . at the Airport . . .'" Compl. ¶¶ 9-10 (alterations in original) (quoting the Lease Agreement at ¶ 12).
In addition, the Port Authority alleges that the USPS has also failed to satisfy its obligation under the lease agreement to maintain a "Commercial of General Liability Insurance and Commercial Automobile Insurance" policy for itself and the Port Authority. Id. ¶¶ 11-12. As relief, the Port Authority seeks a declaratory judgment, monetary relief, attorneys' fees, and certain other relief. Id. at Relief Sought.
As background, the Port Authority's CDA claims arise from an unfortunate automobile accident involving a former USPS employee, which occurred at the JFK Airport in 2012. On May 16, 2012, an automobile accident occurred involving vehicles operated by a former USPS employee, Michael Bartow, and a Port Authority employee, Nicholas Reif. Compl. ¶¶ 5-7; Pl. Opp. at 1. After the accident, Mr. Bartow filed a civil tort action against the Port Authority in the Superior Court of Monmouth County for the State of New Jersey (the "Bartow Litigation"). Compl. ¶ 5; Pl. Opp. at 1; see also Michael Bartow v. Port Authority of New York and New Jersey and Nicholas Reif, No.: MON-L-3624-12.
In 2008, the USPS and the Port Authority entered into a lease agreement to facilitate the lease of the USPS's building at the JFK Airport (the "Lease Agreement"). Compl. ¶ 8; Def. Mot. App. at A1, A3, A5. There are two provisions in this Lease Agreement that are relevant to the Port Authority's claims.
First, paragraph 12 of the Lease Agreement addresses the USPS's obligation to indemnify the Port Authority and provides that:
Compl. ¶ 10. Second, paragraph 49 of the Lease Agreement addresses the USPS's obligation to obtain certain insurance and provides, in relevant part, that:
Id. ¶ 12.
Following the commencement of Mr. Bartow's lawsuit against the Port Authority, plaintiff sent several letters the USPS regarding the indemnification requirement under the terms of the Lease Agreement. Specifically, on March 22, 2017, the Port Authority sent a letter to the USPS's contracting officer requesting that the USPS indemnify the Port Authority in connection with the Bartow Litigation, pursuant to the terms of the Lease Agreement. Id. ¶¶ 9-10; Pl. Opp. at 2; Def. Mot. at 2-3. This letter states in relevant part that:
Def. Mot. App. at A1-A2.
On March 27, 2017, the Port Authority sent a second letter to the USPS's contracting officer requesting that the USPS indemnify plaintiff in connection with the Bartow Litigation. Pl. Opp. at 2; Def. Mot. at 2-3; Def. Mot. App. at A3-A4. This letter states, in relevant part, that:
Def. Mot. App. at A3.
Lastly, on March 31, 2017, Port Authority sent a third letter to the USPS's contracting officer that again requested that the USPS indemnify plaintiff in connection with the Bartow Litigation. Pl. Opp. at 2; Def. Mot. at 2-3; Def. Mot. App. at A5. This letter states, in relevant part, that:
The USPS's contracting officer has not responded to any of the Port Authority's letters. Def. Mot. at 2-3; Pl. Opp. at 2.
The Port Authority commenced this action on April 17, 2017. See generally Compl. On July 28, 2017, the government filed a motion to dismiss this action for lack of subject-matter jurisdiction, pursuant to RCFC 12(b)(1). See generally Def. Mot.
On September 19, 2017, the Port Authority filed a response and opposition to the government's motion to dismiss by leave of the Court. See generally Pl. Opp. On October 20, 2017, the government filed a reply in support of its motion to dismiss. See generally Def. Reply.
The government's motion to dismiss having been fully briefed, the Court resolves the pending motion.
When deciding a motion to dismiss upon the ground that the Court does not possess subject-matter jurisdiction pursuant to RCFC 12(b)(1), this Court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also RCFC 12(b)(1). But, plaintiff bears the burden of establishing subject-matter jurisdiction, and plaintiff must do so by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the subject-matter, it must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278 (2006) (citations omitted); see also RCFC 12(h)(3).
In this regard, the United States Court of Federal Claims is a Court of limited jurisdiction and "possess[es] only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Tucker Act grants the Court jurisdiction over:
28 U.S.C. § 1491(a)(1).
The Tucker Act is, however, a jurisdictional statute. It does not create any substantive right enforceable against the United States for money damages. Rather, the Tucker Act merely confers jurisdiction upon the Court whenever that substantive right exists. United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a substantive right against the United States under the Tucker Act, a plaintiff must identify and plead a money-mandating constitutional provision, statute, or regulation; an express or implied contract with the United States; or an illegal exaction of money by the United States. Cabral v. United States, 317 F. App'x. 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005)).
Pursuant to the Tucker Act, this Court possesses "jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41 [the Contract Disputes Act or the "CDA"]." 28 U.S.C. § 1491(a)(2); see also Kellogg Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 46, 51 (2014) (citations omitted) ("The Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109 (Supp. V 2011), is a money-mandating source of law sufficient to confer jurisdiction [upon the Court of Federal Claims] under the Tucker Act, 28 U.S.C. § 1491 (2012)."). A plaintiff must meet two jurisdictional prerequisites to bring a claim under the CDA: (1) submit a proper claim to the relevant contracting officer, which must be properly certified if the amount requested is above $100,000; and (2) obtain a final decision on that claim. 41 U.S.C. § 7103(a); see also M. Maropakis Carpentry, Inc., 609 F.3d 1323, 1328 (Fed. Cir. 2010) (citation omitted) ("[T]he contractor must submit a proper claim—a written demand that includes (1) adequate notice of the basis and amount of a claim and (2) a request for a final decision."); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed. Cir. 1995).
In regards to what constitutes a valid CDA claim, the United States Court of Appeals for the Federal Circuit has explained that the Court looks to the Federal Acquisition Regulations ("FAR") implementing the CDA for the definition of a claim, because the CDA does not define the term "claim". Id. at 1327 (citation omitted). The FAR defines a claim to be:
Id. (quoting 48 C.F.R. § 33.201). The Federal Circuit has also explained that "[w]hile a CDA claim need not be submitted in any particular form or use any particular wording, it must contain `a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim.'" Id. (quoting Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed.Cir.1997)).
In this regard, the Federal Circuit has also explained that, although a claim must "indicate to the contracting officer that the contractor is requesting a final decision," an explicit request for a final decision is not required "as long as what the contractor desires by its submissions is a final decision . . . ." Id. at 1327-28 (quoting Ellett, 93 F.3d at 1543). But, a claim "based merely on intent to assert a claim without any communication by the contractor of a desire for a contracting officer decision" falls short of what is required. Id. at 1328 (citation omitted).
This Court has also recognized that a contractor may obtain either an actual or a deemed final decision on a CDA claim. Claude E. Atkins Enters., Inc. v. United States, 27 Fed. Cl. 142, 143 (1992). For claims of $100,000 or less, the CDA provides that "[a] contracting officer shall issue a decision on any submitted claim . . . within 60 days from the contracting officer's receipt of a written request from the contractor that a decision be rendered within that period." 41 U.S.C. § 7103 (f)(1); see also Witherington Constr. Corp. v. United States, 45 Fed. Cl. 208, 210 (1999). For claims over $100,000, the CDA provides that the contracting officer shall, within 60 days of receipt of the submitted certified claim: "(A) issue a decision; or (B) notify the contractor of the time within which a decision will be issued." 41 U.S.C. § 7103(f)(2).
The CDA also requires that a contracting officer's decision shall be "issued within a reasonable time," which is calculated by "taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor." 41 U.S.C. § 7103(f)(3). If the contracting officer denies the claim within the required time period, that claim is actually denied. Id. A failure to issue a decision within the required time "is deemed to be a decision by the contracting officer denying the claim". 41 U.S.C. § 7103(f)(5). And so, a denial, actual or deemed, authorizes an appeal or action on the claim. Id.
In addition, this Court has held that when a CDA claim "is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation,' thereby `divest[ing] the contracting officer of his authority to issue a final decision on the claim.'" Witherington Constr. Corp., 45 Fed. Cl. at 211 (quoting Sharman Co. v. United States, 2 F.3d at 1571). And so, this Court has also held that:
Kellogg Brown & Root Servs., Inc., 115 Fed. Cl. at 56 (quoting Sipco Servs. & Marine Inc. v. United States, 30 Fed.Cl. 478, 485 (1994)).
The government has moved to dismiss this Contract Disputes Act matter for lack of subject-matter jurisdiction, upon the ground that the Port Authority failed to submit a valid claim to the USPS's contracting officer -or to obtain a final decision from the contracting officer -prior to commencing this matter. See generally, Def. Mot.; RCFC 12(b)(1). And so, the government requests that the Court dismiss this matter for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(1).
The Port Authority counters in its opposition to the government's motion to dismiss that the Court may consider its CDA claims because the Port Authority submitted a valid claim to the USPS's contracting officer "for indemnification and defense." Pl. Mot. at 4. But, the Port Authority acknowledges that it did not obtain a final decision from the USPS's contracting officer prior to commencing this matter. And so, plaintiff requests that, if the Court finds that "its claims were not ripe because 60 days had not passed" prior to obtaining a final decision from the USPS's contracting officer, it be given the opportunity to cure this jurisdictional defect, or that the Court dismiss this matter without prejudice. Id. at 5.
For the reasons discussed below, the undisputed facts in this matter show that the Port Authority has not complied with the CDA's jurisdictional prerequisite to obtain a final decision from the USPS's contracting officer before commencing this litigation. And so, the Court
There is no genuine dispute among the parties that the Court does not possess subject-matter jurisdiction to consider any of the Port Authority's CDA claims. Def. Mot. at 4; Pl. Opp. at 5. In fact, the Port Authority acknowledges in its response and opposition to the government's motion to dismiss that it did not obtain a final decision from the USPS's contracting officer before commencing this action. Pl. Opp. at 5.
It is well-established that the Port Authority must submit a proper claim to the USPS's contracting officer, and obtain a final decision on that claim, to pursue a CDA claim in this Court. 41 U.S.C. § 7103(a); see also Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed. Cir. 1995). Because there is no dispute that the USPS's contracting officer has not issued a final decision with respect to any of the Port Authority's letters regarding the indemnification requirement in the Lease Agreement, the Port Authority has not met its burden to show that this Court possesses subject-matter jurisdiction to consider its CDA claims. Def. Mot. at 3; Pl. Opp. at 2. See Maropakis, 609 F.3d 1323 (Fed. Cir. 2010).
The Port Authority also fails to show that there has been a deemed denial of its CDA claims. Claude E. Atkins Enters., Inc. v. United States, 27 Fed. Cl. 142, 143 (1992) (Recognizing that a contractor may obtain either an actual or a deemed final decision on a CDA claim.). Under the CDA, a contracting officer's failure to issue a final decision within 60-days after receipt of a valid CDA claim is deemed to be a decision by the contracting officer to deny the claim. 41 U.S.C. § 7103(f)(5). And so, such a deemed denial authorizes an action on the claim before this Court. Id.
But, the Port Authority acknowledges here that it commenced this action before the 60-day period for the USPS's contracting officer to issue a final decision had elapsed. Pl. Opp. at 4-5; see also Def. Mot. at 5. In this regard, there is no dispute that the Port Authority sent three letters to the USPS's contracting officer regarding the indemnification requirement in the Lease Agreement and that plaintiff sent the first of these letters on March 22, 2017 -just 26 days before the Port Authority commenced this action on April 17, 2017. Pl. Opp. at 2.
This Court has long held that a "claim premature for lack of a contracting officer's final decision does not ripen into a mature claim while suit is pending with the passage of sixty (60) days." Kellogg Brown & Root Servs. Inc. v. United States, 115 Fed. Cl. 46, 56 (2004) (quoting Sipco Servs. & Marine Inc. v. United States, 30 Fed. Cl. 478, 485 (1994)). Given this, the Port Authority cannot show that its CDA claims have been actually or deemed denied by the USPS's contracting officer. And so, the Court must dismiss the Port Authority's CDA claims for lack of subject-matter jurisdiction.
In sum, the Port Authority simply has not met its burden to show that the Court possesses subject-matter jurisdiction to consider any of its CDA claims. And so, the Court must dismiss this action pursuant to RCFC 12(b)(1).
For the foregoing reasons, the Court:
The Clerk is directed to enter judgment accordingly.
Each party to bear its own costs.
