609 F.3d 1323 (Fed. Cir. 2010), 2009-5024, M. Maropakis Carpentry, Inc. v. United States

Docket Nº:2009-5024.
Citation:609 F.3d 1323
Opinion Judge:LINN, Circuit Judge.
Party Name:M. MAROPAKIS CARPENTRY, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Attorney:Stephanie E. Divittore, Rhoads & Sinon LLP, of Harrisburgh, PA, argued for plaintiff-appellant. Of counsel on the brief was Kelly H. Decker. Kent C. Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-...
Judge Panel:Before NEWMAN, LOURIE, and LINN, Circuit Judges. NEWMAN, Circuit Judge, dissenting.
Case Date:June 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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609 F.3d 1323 (Fed. Cir. 2010)

M. MAROPAKIS CARPENTRY, INC., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

No. 2009-5024.

United States Court of Appeals, Federal Circuit.

June 17, 2010

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[Copyrighted Material Omitted]

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Stephanie E. Divittore, Rhoads & Sinon LLP, of Harrisburgh, PA, argued for plaintiff-appellant. Of counsel on the brief was Kelly H. Decker.

Kent C. Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director.

Before NEWMAN, LOURIE, and LINN, Circuit Judges.

LINN, Circuit Judge.

This action arises under the Contract Disputes Act (" CDA" ), 41 U.S.C. §§ 601-613. M. Maropakis Carpentry, Inc. (" Maropakis" ) appeals the decision of the United States Court of Federal Claims dismissing Maropakis's complaint for lack of subject matter jurisdiction because it failed to present to the contracting officer a " claim" within the meaning of the CDA. Maropakis further appeals the grant of the government's counterclaim for liquidated damages. Because Maropakis has demonstrated no errors of law or clearly erroneous factual findings, we affirm.

BACKGROUND

On April 6, 1999 the Navy awarded a contract to Maropakis for, among other things, the replacement of windows and a roof at a warehouse building located at Naval Inventory Control Point in Mechanicsburg, Pennsylvania. M. Maropakis Carpentry, Inc. v. United States, 84 Fed.Cl. 182, 185 (2008). The contract specified a completion date of January 16, 2000, though this was later modified by extensions to February 4, 2000. The contract also included a liquidated damages clause, in the form of 48 C.F.R. § 52.211-12, which provided that Maropakis would be liable to the government for $650 per day for each day of delay beyond the contract completion date.

Maropakis did not begin work until after the specified completion date. The project was completed May 17, 2001, 467 days after the modified completion date. On August 20, 2001, Maropakis sent a letter addressed to " Mr. W.L. Robertson O.I.C., Navfac Contracts" requesting " an extension of contract time ... from January 16, 2000 to April 17, 2001, a total of 447 consecutive

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calendar days" based on five alleged delays: (1) 187 days due to the inability to locate a window manufacturer; (2) 32 days in time lost from the start date of fabrication of windows due to the need to re-submit plans; (3) 107 days due to the discovery of lead-based paint; (4) 20 days due to the Navy's prohibition of the use of asphalt as a roofing adhesive; and (5) 101 days for time lost while searching for a metal fabricator. Id. at 191. On August 28, 2001, James Nihoff, the contracting officer (" Contracting Officer" ) on Maropakis's contract responded to the August 20 letter to Robertson by stating that Maropakis did not " present[ ] sufficient justification to warrant the time extension" requested. Id. The Contracting Officer rejected each of the requested extensions, noting that, among other problems, some of the dates of delay were overlapping. In closing, the Contracting Officer invited Maropakis to " submit additional information" in support of its request and stated that " [t]his letter is not a Final Decision of the Contracting Officer." Id. at 192.

On June 28, 2002, the Navy sent Maropakis another letter, pointing out that Maropakis had neither " responded [to the August 2001 letter] with additional information" nor " requested a Contracting Officers [sic] final decision for these matters." Id. The letter also indicated that the government had made payments to Maropakis in the amount of $1,053,115, $244,036 less than the total contract price of $1,297,151. Finally, the letter informed Maropakis that it would owe liquidated damages of $303,550 representing $650 per day for the 467 days of delay in completing the project. The Navy applied this amount against the remaining contract balance, $244,036, resulting in a total due from Maropakis of $59,514.

Maropakis responded in a letter on July 22, 2002 reiterating its earlier request for an extension but mentioning specifically only the 107-day extension for the removal of lead contaminated windows. This letter referred to multiple delays but did not specify a total number of days of extension requested. The letter then stated, " we will dispute ... the liquidated damages amount of $303,550.00 and will indicate that M. Maropakis was not responsible for the delays." Id. at 193 (emphases added). There was no follow-up to this correspondence by either party. Maropakis did not file a separate formal claim regarding the time extension.

On December 20, 2002 the Navy issued Final Decision # 03-002F which reiterated the government's demand for liquidated damages. The government characterizes this letter as a final decision pertaining only to the Navy's demand for liquidated damages. Maropakis contends that this letter was a final decision applying to each of its previous requests for extension of the contract period.

There was no further activity by either party until Maropakis filed a complaint on December 17, 2003 in the Court of Federal Claims alleging (1) breach of contract due to government delay and seeking resulting time extensions, and (2) breach of contract due to the government's assessment of liquidated damages and seeking remission of the full $303,550. Amended Compl., ¶ ¶ 50-52, 54-55, M. Maropakis, 84 Fed.Cl. 182. The government responded by asserting a counterclaim for the $59,514 balance it contended was due the government in liquidated damages. On October 3, 2008, the Court of Federal Claims granted the government's motion to dismiss Maropakis's claim for time extensions for lack of subject-matter jurisdiction, finding that Maropakis had not submitted a " claim" for contract modification as required under the CDA. The Court of Federal Claims also granted the government's motion for summary judgment as to its counterclaim

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on the liquidated damages issue. Maropakis appeals both decisions, arguing that its July 22, 2002 letter was sufficient to constitute a claim under the CDA. In addition, Maropakis argues that it was not required to comply with the jurisdictional prerequisites of the CDA to assert its claim for a time extension as a defense to the government's counterclaim for liquidated damages.

We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

I. Standard of Review

We review de novo the decision of the Court of Federal Claims to dismiss for lack of jurisdiction. Radioshack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009). A plaintiff bears the burden of establishing subject-matter jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988).

We also review de novo the grant of summary judgment by the Court of Federal Claims, " drawing justifiable factual inferences in favor of the party opposing the judgment" and reapplying the standard applicable to proceedings before the Court of Federal Claims. Long Island Savs. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed.Cir.2007). In the Court of Federal Claims, once the moving party comes forward with evidence satisfying its initial burden on a motion for summary judgment, the party opposing the motion must present evidence creating a genuine issue of material fact. Id. Whether a particular defense is permitted under the CDA is also a question of law, which we review de novo. See Frazer v. United States, 288 F.3d 1347, 1351 (Fed.Cir.2002) (holding that " this court reviews de novo all legal determinations" including the defense of equitable tolling).

II. Time Extensions

The parties in this case dispute whether Maropakis submitted a valid claim for time extensions to its contracting officer sufficient to give the Court of Federal Claims jurisdiction over the issue. Under the CDA, the Court of Federal Claims has jurisdiction over actions filed within twelve months of a contracting officer's decision on a claim. 41 U.S.C. § 609(a). This Court has found that jurisdiction thus requires both a valid claim and a contracting officer's final decision on that claim. James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42 (Fed.Cir.1996). Since the CDA itself does not define the term " claim," we look to the Federal Acquisition Regulations (FAR) implementing the CDA for the definition. See Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed.Cir.1995) (en banc). The FAR defines " claim" as: " a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or...

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