879 F.3d 1354 (Fed. Cir. 2018), 2016-2589, Securiforce International America, LLC v. United States
|Docket Nº:||2016-2589, 2016-2633|
|Citation:||879 F.3d 1354|
|Opinion Judge:||Dyk, Circuit Judge.|
|Party Name:||SECURIFORCE INTERNATIONAL AMERICA, LLC, Plaintiff-Appellant v. UNITED STATES, Defendant-Cross-Appellant|
|Attorney:||FREDERICK W. CLAYBROOK, JR., Claybrook LLC, Washington, DC, argued for plaintiff-appellant. Also represented by BRIAN TULLY MCLAUGHLIN, Crowell & Moring, LLP, Washington, DC; ROBERT JOHN WAGMAN, JR., Bracewell LLP, Washington, DC. PATRICIA M. MCCARTHY, Commercial Litigation Branch, Civil Division...|
|Judge Panel:||Before Dyk, OMalley, and Wallach, Circuit Judges.|
|Case Date:||January 17, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Federal Circuit|
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Appeals from the United States Court of Federal Claims in No. 1:12-cv-00759-MBH, Judge Marian Blank Horn.
FREDERICK W. CLAYBROOK, JR., Claybrook LLC, Washington, DC, argued for plaintiff-appellant. Also represented by BRIAN TULLY MCLAUGHLIN, Crowell & Moring, LLP, Washington, DC; ROBERT JOHN WAGMAN, JR., Bracewell LLP, Washington, DC.
PATRICIA M. MCCARTHY, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-cross-appellant. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., RUSSELL JAMES UPTON, JEFFREY LOWRY; JILL BUCHOLZ RODRIGUEZ, Defense Logistics Agency, Ft. Belvoir, VA.
Before Dyk, OMalley, and Wallach, Circuit Judges.
Dyk, Circuit Judge.
Securiforce International America, LLC (" Securiforce" ), a government contractor, filed suit in the Court of Federal Claims (" Claims Court" ) under the Tucker Act, 28 U.S.C. § 1491, and the Contract Disputes Act of 1978 (" CDA" ), 41 U.S.C. § § 7101-09. It sought a declaration that its contract for fuel delivery was improperly terminated by the Defense Logistics Agency (" DLA" or the " government" )— in part for the governments convenience and in part for default. The Claims Court held that the CDA provided it with jurisdiction over both terminations; that the termination for convenience was improper; and that the termination for default was proper. Securiforce Intl Am., LLC v. United States (Securiforce I), 125 Fed.Cl. 749 (2016). The Claims Court also denied Securiforces posttrial sanctions motions. Securiforce Intl Am., LLC v. United States (Securiforce II), 127 Fed.Cl. 386 (2016).
We affirm the Claims Courts determinations except its determination that it had jurisdiction to adjudicate an affirmative, declaratory claim with respect to the termination for convenience; on that one issue, we vacate the judgment of the Claims Court and remand with directions to dismiss.
In September 2011, Securiforce entered into a requirements contract with the government to deliver fuel to eight sites in Iraq. Shortly after the contract was executed, on September 26, the government terminated the contract for convenience with respect to two of the eight sites (the " termination for convenience" ). Because Securiforce intended to supply fuel from Kuwait, the government concluded that delivery to those two sites without an appropriate waiver would have violated the Trade Agreements Act of 1979 (" TAA" ), 19 U.S.C. § § 2501-81, and that obtaining a waiver would have taken too long.
Thereafter, in mid-October, the government placed oral orders for small deliveries to two of the remaining sites, the deliveries to occur by October 24. In the weeks that followed, however, Securiforce informed the government that it would not be able to deliver until, first, early and, then, late November. Losing confidence that Securiforce would be able to make the deliveries, the government sent Securiforce notice that it should offer justifiable excuses for its delays or risk a termination for default. Securiforce responded, contending that various government breaches excused the late deliveries, including the allegedly improper termination for convenience, the failure to provide required security escorts, the small size of the orders, and other alleged irregularities attributable to the government. Unpersuaded, the government terminated the remainder of the contract for default on November 15 (the " termination for default" ).
Securiforce filed its initial complaint in the Claims Court the following year, on
November 6, 2012, requesting declaratory relief that the termination for default was improper. On November 16, Securiforce sent the government a letter requesting a final decision by the contracting officer (" CO" ) that the termination for convenience was improper. On January 16, 2013, the CO denied Securiforces request because it did not seek damages in a sum certain, and on January 23 Securiforce amended its complaint in the Claims Court to include an additional request for declaratory judgment that the termination for convenience was improper.
Following a bench trial, the Claims Court issued its findings of fact and conclusions of law. Securiforce I, 125 Fed.Cl. 749. The court found that it had jurisdiction to review Securiforces claims concerning both the termination for convenience, id. at 764-81, and the termination for default, id. at 788. Reaching the merits of the termination-for-convenience claim, the court found the CO abused her discretion in partially terminating the contract for convenience and, in doing so, breached the governments contract with Securiforce. Id. at 781-87. The court then found the termination for default proper, rejecting Securiforces claim that its nonperformance could be excused by the governments actions, id. at 787-99, and explaining that Securiforces failure to perform " was a product of its own making," because it had failed to make proper and timely arrangements to acquire and deliver fuel, id. at 793. In a follow-up opinion, the court denied Securiforces posttrial sanctions motions. Securiforce II, 127 Fed.Cl. 386.
Securiforce timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
We review the legal conclusions of the Claims Court de novo and its findings of fact for clear error. Rasmuson v. United States, 807 F.3d 1343, 1345 (Fed. Cir. 2015).
We first consider whether the Claims Court had subject-matter jurisdiction to review the termination for convenience. " Whether the Court of Federal Claims had jurisdiction under the CDA is a question of law we decide de novo," K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004 (Fed. Cir. 2015), but " we review the trial courts findings of fact relating to jurisdictional issues for clear error," John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1353 (Fed. Cir. 2006), affd, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).
" A prerequisite for jurisdiction of the Court of Federal Claims over a CDA claim is a final decision by a contracting officer on a valid claim ." Northrop Grumman Computing Sys., Inc. v. United States, 709 F.3d 1107, 1111-12 (Fed. Cir. 2013); see also 28 U.S.C. § 1491(a)(2); 41 U.S.C. § 7104(b)(1). Because the CDA does not define " claim," we look to the Federal Acquisition Regulation (" FAR" ), which defines a 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 interpretation of contract terms, or other relief arising under or relating to th[e] contract." FAR 52.233-1(c); see also J.A. 789 (incorporating this clause into Securiforces contract). We have explained that for monetary claims,
the absence of a sum certain is " fatal to jurisdiction under the CDA." Northrop, 709 F.3d at 1112; accord M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327-29 (Fed. Cir. 2010). Relatedly, " once a claim is in litigation, the contracting officer may not rule on it— even if the claim ... was not properly submitted to and denied by the contracting officer before it was placed in litigation." K-Con, 778 F.3d at 1005.
The government offers two alternative arguments against the Claims Courts jurisdiction, both based on Securiforces purported failure to obtain a final decision from the CO before bringing its claim into court. First, the government contends that the filing of Securiforces initial complaint in the Claims Court ousted the CO of authority to decide the claim presented in Securiforces subsequent letter. Second, the government argues that even if the CO had authority to decide the claim, Securiforce failed to state a sum certain in its letter to the CO, as required by the CDA. Because we agree with the government on the second of these points, we need not reach the first.
As noted above, Securiforce submitted a letter to the CO concerning the termination for convenience on November 16, 2012, ten days after it filed its initial complaint in the Claims Court. Securiforces letter to the CO did not state a sum certain but rather purported to seek only a declaration that the termination for convenience...
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