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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS C.R. PITTMAN CONSTRUCTION COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 08-196C (Senior Judge Smith)

DEFENDANT'S MOTION TO DISMISS CERTAIN CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION

GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director MARK A. MELNICK Assistant Director TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, NW, 8th Floor Washington, D.C. 20530 Telephone: (202) 616-0342 Facsimile: (202) 514-7965 OF COUNSEL: WILLIAM G. MEINERS Office of Counsel United States Army Corps Of Engineers Attorneys for Defendant August 19, 2008

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TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . ii

DEFENDANT'S MOTION TO DISMISS CERTAIN CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION. . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. The Court Should Dismiss For Lack Of Subject Matter Jurisdiction The Claims Set Forth In ¶ 50, 51, and ¶ 52(d) Of The Complaint, And Those Set Forth In Causes Of Action Numbers Two And Three, Because They Have Not Been Presented To The Contracting Officer, Or Are Based Upon Facts That Are Not The Bases For The Contracting Officer's Decisions . . . . . . . . . 4 The Court Should Also Dismiss The Claim Set Forth In Cause Of Action Number Three For Lack Of Subject Matter Jurisdiction Because It Sounds In Tort .. . . . . . . . . . . . . . . . . . . 8 10

II.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES CASES PAGE(S) 9

C.R. Pittman Construction Co., Inc. v. United States, No. 08-1429 (E.D. La.). . . . . . . . . . . . . . . . . . Chevron U.S.A., Inc. v. United States, 71 Fed. Cl. 236 (2006). . . . . . . . . . . . . . . .

3, 5 9

Gray v. United States, 69 Fed. Cl. 95 (2005).. . . . . . . . . . . . . . . . . .

Henke v. United States, 60 F.3d 795 (Fed. Cir. 1995).. . . . . . . . . . . . . . . 5 In Re: Katrina Canal Breaches Consolidated Litigation, No. 2:05-cv-04182-SRD-JCW (E.D. La.). . . . . . . . . . 10

Metric Construction Co., Inc. v. United States, 14 Cl. Ct. 177 (1988). . . . . . . . . . . . . . . . . . . 6 Naskar v. United States, 82 Fed. Cl. 319 (2008). . . . . . . . . . . . . . . . . . Placeway Construction Corp. v. United States, 920 F.2d 903 (Fed. Cir. 1990).. . . . . . . . . . . . . . Rick's Mushroom Service, Inc. v. United States, 521 F.3d 1338 (Fed. Cir. 2008). . . . . . . . . . . . . . Roxco, Ltd. v. United States, 77 Fed. Cl. 138 (2007). . . . . . . . . . . . . . . . . . Santa Fe Engineers, Inc. v. United States, 818 F.2d 856 (Fed. Cir. 1987) . . . . . . . . . . . . . . Scott Timber Co. v. United States, 333 F.3d 1358 (Fed. Cir. 2003). . . . . . . . . . . . . . STATUTES, RULES AND REGULATIONS Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680.. . Contract Disputes Act, 41 U.S.C. ¶¶ 601-613.. . . . . . . . 9 9 6 9 6 5 5

2, 5 2

Rule 12(b)(1).. . . . . . . . . . . . . . . . . . . . . . . .

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS C.R. PITTMAN CONSTRUCTION COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 08-196C (Senior Judge Smith)

DEFENDANT'S MOTION TO DISMISS CERTAIN CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION INTRODUCTION In this action, plaintiff, C.R. Pittman Construction Company, Inc. ("C.R. Pittman"), with whom the Government contracted to perform renovations to two pumping stations in New Orleans, Louisiana, appeals from decisions by the contracting officer that C.R. Pittman owes the Government money. C.R.

Pittman also seeks monetary damages for equipment damaged during Hurricane Katrina, and a declaratory judgment that the Government is liable to C.R. Pittman for loss or damage to equipment. In

addition, C.R. Pittman claims that the Government is responsible for damage to equipment because it allegedly delayed the projects and that the Government has failed to pay to refurbish and replaced damaged equipment. However, the Court does not possess jurisdiction to entertain those claims because C.R. Pittman has not presented them to the contracting officer or because they are not based upon the same operative facts as are the contracting officer's

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decisions.

In addition, the Court does not possess jurisdiction

to entertain one of those claims because it sounds in tort. Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims, defendant, the United States, respectfully requests that the Court dismiss for lack of subject matter jurisdiction the claims set forth in ¶¶ 50, 51, and 52(d) of the complaint, and in Causes Of Action Numbers Two and Three. QUESTIONS PRESENTED 1. Whether the Court should dismiss for lack of subject

matter jurisdiction the claims set forth in ¶¶ 50, 51, and 52(d) of the complaint, and in Causes Of Action Numbers Two and Three, where either C.R. Pittman has not presented those claims to the contracting officer or the claims are based upon operative facts that are not the bases for the contracting officer's decisions from which C.R. Pittman appeals. 2. Whether the Court should dismiss the claim set forth in

Causes Of Action Number Three for lack of subject matter jurisdiction, where that is a claim for damages for negligence. STATEMENT OF THE CASE This action arises from contracting officer's decisions, pursuant to the Contract Disputes Act, 41 U.S.C. ¶¶ 601-613, demanding that C.R. Pittman repay the Government $2,340,109.53 in payments that the Government made to C.R. Pittman for equipment that C.R. Pittman did not install on pumping stations in New

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Orleans.

Complaint ("Compl.") ¶ 5; Complaint Exhibits ("Compl. In September 20, 2000, the Government awarded

Exhs.") 3, 4.1

C.R. Pittman Contract Number DACW29-000-C-0093 for construction of the Southeast Louisiana Urban Flood Control Project, Dwyer Road Drainage Pumping Station, Orleans Parish, Lousiana ("Dwyer contract"). Compl. ¶ 11. On September 16, 2002, the Government

awarded C.R. Pittman Contract Number DACW29-02-C-0062 for construction of the West Bank and Vicinity, New Orleans Louisiana Hurricane Protection Project, West of Algiers Canal Cousins Pumping Station Expansion and Fronting Protection, Jefferson Parish, Lousiana ("Cousins contract"). Compl. ¶ 20.

The contracts required C.R. Pittman to purchase and furnish equipment for the pumping stations. Id. ¶¶ 12, 14, 21, 23. The

Government made progress payments to C.R. Pittman for purchase of equipment. equipment. Id. ¶¶ 17, 26. Id. ¶¶ 16, 25. C.R. Pittman purchased and stored the On August 29, 2005, Hurricane Katrina

struck the New Orleans area, flooding the storage sites and damaging the equipment, preventing their installation. ¶¶ 18, 27. See id.

1

We assume the truth of the facts alleged in the complaint only See Chevron U.S.A., Inc. v. United

for purposes of this motion.

States, 71 Fed. Cl. 236, 256 (2006). -3-

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On April 6, 2007, a contracting officer issued decisions demanding that C.R. Pittman pay the Government $2,340,109.53 in progress payments made to C.R. Pittman for the equipment, consisting of $1,940,218.62 for the Dwyer contract equipment and $399,890.91 for the Cousins contract equipment. Exhs. 3, 4. Id. ¶ 38; Compl.

The contracting officer found that a "Permits and

Responsibilities" clause included in both contracts imposed "strict liability for damage and materials prior to completion and acceptance," making C.R. Pittman "responsible for the damaged equipment." Compl. Exh. 3 at 5; Compl. Exh. 4 at 5. The

contracting officer also found that a "Damage to Work" clause included in the contracts "is not applicable to the facts" and "may not be invoked as the basis to relieve [C.R. Pittman] from financial liability for the damaged equipment." at 6; Compl. Exh. 4 at 6. ARGUMENT I. The Court Should Dismiss For Lack Of Subject Matter Jurisdiction The Claims Set Forth In ¶ 50, 51, and ¶ 52(d) Of The Complaint, And Those Set Forth In Causes Of Action Numbers Two And Three, Because They Have Not Been Presented To The Contracting Officer, Or Are Based Upon Facts That Are Not The Bases For The Contracting Officer's Decisions The Court should dismiss for lack of subject matter jurisdiction the claims set forth in ¶¶ 50, 51, and 52(d) of the complaint, and those set forth in Causes Of Action Numbers Two and Three, because C.R. Pittman has not presented those claims to the contracting officer or because those claims are based upon -4Compl. Exh. 3

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operative facts that are not the basis for the contracting officer's decisions. In ruling upon a motion to dismiss for lack

of subject matter jurisdiction, the Court assumes all factual allegations to be true and draws all reasonable inferences in the plaintiff's favor. Chevron U.S.A., 71 Fed. Cl. at 256 (citing

Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). C.R. Pittman invokes the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 601-613, as a source of the Court's jurisdiction to entertain this action. Compl. ¶ 3. An action pursuant to the

CDA must be based upon the same claim previously presented to and denied by a contracting officer. Scott Timber Co. v. United A contractor may

States, 333 F.3d 1358, 1365 (Fed. Cir. 2003).

not present new claims to the trial court that were not presented to a contracting officer. See Santa Fe Eng'rs, Inc. v. United A contractor's

States, 818 F.2d 856, 858 (Fed. Cir. 1987).

claims must be based upon the same operative facts that were before the contracting officer. at 1365. See Scott Timber, 333 F.3d

If the contractor seeks monetary damages, the claim to

the contracting officer must have stated a sum-certain amount or an amount that can be easily determined by a simple mathematical calculation or from the contractor's submission to the contracting officer in order for the Court to possess jurisdiction to entertain the claim for monetary damages. See

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Metric Constr. Co., Inc. v. United States, 14 Cl. Ct. 177, 179 (1988). Because a decision upon a Government claim that is adverse to a plaintiff contractor serves as a basis for the contractor's appeal in this Court, Roxco, Ltd. v. United States, 77 Fed. Cl. 138, 144 (2007) (citing Placeway Constr. Corp. v. United States, 920 F.2d 903, 906-07 (Fed. Cir. 1990)), the Court possesses jurisdiction to entertain C.R. Pittman's challenge to the contracting officer's demand that it pay the Government money. Indeed, C.R. Pittman "disput[es] the merits of the [Government's] claim." Compl. ¶ 38. Consequently, the Court possesses

jurisdiction to entertain C.R. Pittman's claim (Compl. ¶¶ 47-49, 52(a)-(c)) that, pursuant to the contracts' "Damages to Work" clause, it does not owe the Government any money for the damaged equipment. (Although C.R. Pittman characterizes that as a breach

of contract claim, and although C.R. Pittman has not presented any breach of contract claim to the contracting officer, we interpret that "breach" claim as a challenge to the contracting officer's interpretation of the contracts.) However, C.R. Pittman's complaint also presents monetary and other claims that have not been presented to the contracting officer, as well as claims that do not arise from the operative facts upon which the contracting officer's decisions are based. In ¶ 52(d) of the complaint C.R. Pittman seeks a declaratory

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judgment that the Government is liable to it "for the loss and/or damage to the equipment." In Cause Of Action Number Two, C.R.

Pittman "seeks all damages to which it is entitled arising out of the breach of both the Dwyer and Cousins contracts . . . ." Compl. ¶ 55. And in Cause Of Action Number Three, C.R. Pittman

"seeks a judgment in this action for all damages to which it is entitled as Set-Off, Recoupment, and/or Compensation . . . ." Id. ¶ 63. However, C.R. Pittman has not presented any claim to

the contracting officer requesting money or a determination that the Government is liable to it for lost or damaged equipment; indeed, C.R. Pittman has not presented any claims to the contracting officer at all. In addition, in ¶ 50 of the complaint, C.R. Pittman alleges that the Government "breached both the Dwyer Contract and the Cousins Contract by unjustifiably failing to pay for the cost of refurbishing or replacing the equipment." In ¶ 51 of the

complaint, C.R. Pittman alleges that the Government "is responsible for the damaged equipment because of the delays to the project that it caused resulting in the equipment it owns being stored and not permanently affixed." However, C.R. Pittman

has not presented any of those claims to the contracting officer, and none of those claims is based upon the same operative facts upon which the contracting officer's decisions are based. Rather, the contracting officer's decisions are based upon the

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language of contract provisions and upon payments made to C.R. Pittman for pre-Hurricane Katrina equipment purchases, not whether the Government paid to refurbish or replace damaged equipment, or whether it delayed C.R. Pittman's performance of the contracts. See Compl. Exhs. 3, 4.

Because C.R. Pittman has not presented to the contracting officer any monetary claim or claim that the Government is liable for lost or damaged equipment, the Court does not possess jurisdiction to entertain C.R. Pittman's claims for declaratory and monetary relief, however characterized. Because C.R. Pittman

has not presented to the contracting officer any claim that the Government delayed its contract performance or failed to pay to refurbish or replace equipment, and because those claims are not based upon the same operative facts as are the contracting officer's decisions, the Court does not possess jurisdiction to entertain C.R. Pittman's claims of delay and failure to pay. Consequently, the Court should dismiss for lack of subject matter jurisdiction the claims set forth in ¶¶ 50, 51, and 52(d) of the complaint, and those set forth in Causes Of Action Numbers Two and Three. II. The Court Should Also Dismiss The Claim Set Forth In Cause Of Action Number Three For Lack Of Subject Matter Jurisdiction Because It Sounds In Tort The Court should also dismiss the claim set forth in Cause Of Action Number Three for lack of subject matter jurisdiction

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because it sounds in tort.

Cause of Action Number Three is a Compl. at 14. C.R.

"request for Damages . . . for Negligence.

Pittman alleges that the Government owes it for the equipment that Hurricane Katrina destroyed because the Government "caused the flooding that destroyed the equipment." Id. ¶ 57. C.R.

Pittman alleges that the Government breached its "duty to adequately design, construct, engineer, maintain, inspect and operate" levees and floodwalls, resulting in flooding that destroyed the equipment. See id. ¶¶ 58-59.

The Court does not possess jurisdiction to entertain claims that sound in tort. See Rick's Mushroom Serv., Inc. v. United A claim for

States, 521 F.3d 1338, 1343 (Fed. Cir. 2008). damages due to negligence sounds in tort. States, 82 Fed. Cl. 319, 321 (2008).

Naskar v. United

Because the claim set forth

in Cause Of Action Number Three is for damages due to negligence, it is a claim that sounds in tort that the Court does not possess jurisdiction to entertain.2 Consequently, the Court should

2

Indeed, C.R. Pittman invokes the Federal Torts Claims Act Compl. ¶ 4. However, the

("FTCA"), 28 U.S.C. §§ 2671-2680, as a source of the Court's jurisdiction to entertain this action. to entertain FTCA claims. 95, 100 (2005). district courts, not this Court, possess exclusive jurisdiction See Gray v. United States, 69 Fed. Cl. Subsequent to the commencement of this action,

C.R. Pittman commenced C.R. Pittman Construction Co., Inc. v. United States, No. 08-1429 (E.D. La.), an FTCA action that appears to include the claim forth in Cause of Action -9-

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dismiss the claim set forth in Cause Of Action Number Three for lack of subject matter jurisdiction. CONCLUSION For the foregoing reasons, the Government respectfully requests that the Court dismiss the claims set forth in Causes Of Action Numbers Two and Three of the complaint for lack of subject matter jurisdiction. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director

s/Mark A. Melnick MARK A. MELNICK Assistant Director

Number Three.

Appendix ("App.") 2-3, 19 ¶ 62.

C.R. Pittman also

refers to In Re: Katrina Canal Breaches Consolidated Litigation, No. 2:05-cv-04182-SRD-JCW (E.D. La.) (Compl. ¶ 63), but C.R. Pittman is not a party to that case. Rather, Civil Action No. 07-2771 (E.D. La.), to which C.R. Pittman was a party and which was consolidated with In Re: Katrina, was dismissed on January 22, 2008. App. 1. -10-

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s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 616-0342 Facsimile: (202) 514-7965 OF COUNSEL: WILLIAM G. MEINERS Office of Counsel United States Army Corps Of Engineers August 19, 2008 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on August 19, 2008, a copy of the foregoing Defendant's Motion To Dismiss Certain Claims For Lack Of Subject Matter Jurisdiction 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. may access this filing through the Court's system. Parties

s/Timothy P. McIlmail