Adamson v. Radosevic, Civ. A. No. 87-2105.
| Decision Date | 21 March 1988 |
| Docket Number | Civ. A. No. 87-2105. |
| Citation | 685 F. Supp. 814 |
| Parties | David V. ADAMSON, Plaintiff, v. Donald RADOSEVIC, Chief, Real Estate Division, Corps of Engineers, Department of Army, and United States of America, Defendants. |
| Court | U.S. District Court — District of Kansas |
Carston C. Johannsen, Thomas L. Thurston, Perry & Hamill, Overland Park, Kan., for plaintiff.
Benjamin L. Burgess, Jr., U.S. Atty., Robert A. Olsen, Asst. U.S. Atty., Kansas City, Kan., Jane Cornwell, Corps of Engineers, Kansas City, Mo., for defendants.
Plaintiff, David V. Adamson, brought this action for declaratory and injunctive relief pursuant to 5 U.S.C. §§ 702, 703 and 28 U.S.C. §§ 1331, 1346. This action arises from various leases entered into by the Army Corps of Engineers with several motel and apartment complexes in the Leavenworth, Kansas area. A hearing was held on plaintiff's request for a preliminary injunction.1 Subsequently, the defendants filed a motion to dismiss or for summary judgment on the ground that this court lacks subject matter jurisdiction over plaintiff's claims.
At the preliminary injunction hearing, various exhibits were admitted into evidence. In addition, the defendants' motion was accompanied by documents which are not part of the pleadings. Due to the presence of these "extraneous" exhibits, the defendants' motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(b).
According to the federal rules, summary judgment is proper only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this rule, the initial burden is on the moving party to show the court "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). This can be done when the moving party identifies those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. 106 S.Ct. at 2553. Once the moving party has met these requirements, the burden then shifts to the party resisting the motion. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate when the non-moving party cannot set forth specific facts supporting the essential elements of his or her claim. Celotex, 106 S.Ct. at 2552-53. In considering a motion for summary judgment, however, the court must look at the record in the light most favorable to the non-moving party. Lindley v. Amoco Prod. Co., 639 F.2d 671, 672 (10th Cir.1981).
The uncontroverted facts are as follows. On April 27, 1984, the defendant Army Corps of Engineers hereinafter "the Corps" submitted to Congress Real Estate Acquisition Report No. 540. In this report, the Corps requested authority pursuant to 10 U.S.C. § 2662 to lease rooms in the area of Fort Leavenworth, Kansas. These rooms were to serve as temporary quarters for unaccompanied officers assigned to Fort Leavenworth's Combined Arms Services Staff School (CAS3). According to the acquisition report, the CAS3 was a nine-week concentrated academic course designed to train officers in standardized staff procedures and doctrinal concepts incident to the employment of combined arms at the battalion, brigade and division level. The acquisition report noted that construction of additional unaccompanied officers quarters on the military base was proposed; funds for this construction were included in the budgets for fiscal years 1984 and 1985. The leases proposed in Acquisition Report No. 540 were to provide interim quarters pending the construction of on-base housing. On June 20, 1984, the House of Representatives' Armed Services Committee approved the Corps' request to proceed with various "real estate projects," including Acquisition Report No. 540.
On December 26, 1984, the Corps issued Solicitation No. 135, Solicitation for Proposals, Lease of Space to the United States of America. The solicitation noted that the Corps needed 300 "residential" units with a maximum of two persons per unit. Each unit was required to have separate bathroom facilities, daily maid service, separate desks or study areas and adequate parking. The units were also required to be within walking distance of dining facilities. The solicitation also stated that the initial term of the lease would be for one year (October 1, 1985, to September 30, 1986) with the option of a one-year renewal of all or part of the units. Finally, the solicitation provided that the all or part of the lease could be terminated by the government on fifteen days written notice.
Plaintiff submitted a proposal to lease space pursuant to Solicitation No. 135 on January 30, 1985, on behalf of the Cody Motor Inn in Leavenworth. Eighteen other proposals were received by the Corps in response to Solicitation No. 135. Four of these proposals were accepted, including plaintiff's. While the leases commenced on different dates, all the leases expired on September 30, 1986, unless renewed. The proposals selected for the CAS3 quarters included:
Number Price Date of
Name of Units per Day Lease
Cody Motor Inn 36 $16.00 6/25/85
Magnolia Manor 276 $15.00 6/25 & 26/85
Condotels, Inc. 51 $17.00 7/29/85
Lewis Management 40 $14.00 9/20/85
The Corps negotiated leases with the four successful bidders. The leases finally executed by the government and the bidders were somewhat different than the terms originally set forth in the solicitation. For example, the leases entered into by the parties contained a bilateral termination clause giving either party the right to terminate the lease on thirty days (rather than fifteen) written notice. Furthermore, while the solicitation provided for termination or renewal of the leases as to all or part of the units, the final leases were silent as to partial termination or renewal.
During the first year of the leases — October 1, 1985, to September 30, 1986 — construction of on-post housing for the CAS3 officers continued as described in the Corps' original acquisition report to Congress. Near the end of the first year, the government exercised its options and renewed all the leases for another year. In late 1986 or early 1987, the Corps determined that some of the on-post housing would be completed in early 1987, thereby reducing the off-post housing needs. On January 5, 1987, the Corps notified all CAS3 officers living in the leased units that the leases were to be terminated effective March 11, 1987, and that they should make special arrangements if they needed to stay beyond that date. Plaintiff was aware of this notice.
On January 16, 1987, the Corps received a request from Fort Leavenworth personnel to cancel all of the lease agreements except those necessary to retain 264 off-base units. The correspondence indicated that after a meeting of Corps and base personnel, they concluded that it was undesirable to lodge CAS3 students in diverse locations because of inefficient shuttle bus operations, transportation costs and various stress and morale problems imposed on the officers. The letter indicated that the housing needs for 264 units could be satisfied by a single off-post housing complex, Magnolia Manor. For these reasons, Fort Leavenworth requested that all the leases, except for 264 units at Magnolia Manor, be terminated. On January 28, 1987, plaintiff's counsel delivered to the Corps a written protest objecting to the pending terminations.
On February 2, 1987, base and Corps personnel met to discuss the January 16 request to terminate the leases. Fort Leavenworth personnel were required to prepare cost studies to supplement the base's recommendation. On February 4, 1987, a meeting with all leaseholders was held. At the meeting and in a letter dated February 5, 1987, plaintiff and other leaseholders requested the Corps to terminate units on a pro rata basis between the four leaseholders.
A detailed cost analysis was conducted under the supervision of Ralph Yaple, an employee of the Corps. This analysis reviewed seven different options available to the government to reduce the number of units leased. This data, with various corrections, was submitted to the Corps. Plaintiff vigorously disputes the accuracy and reliability of this information. Subsequently, the Corps terminated all leases except two at Magnolia Manor. Plaintiff's lease was terminated by the Corps on February 11, 1987. Various protest letters were sent to the Corps. Plaintiff then filed a protest with the General Accounting Office (GAO). On March 10, 1987, plaintiff filed this action. Since then, the GAO has rendered decisions on appeals filed by the other terminated lessors; the GAO found the terminations to be reasonable.
In its motion for summary judgment, the defendants contend that this court lacks subject matter jurisdiction over plaintiff's claims. In his complaint, plaintiff bases jurisdiction on 5 U.S.C. §§ 702, 703 and 28 U.S.C. § 1331. Defendants assert that neither of these statutes provide an independent basis for subject matter jurisdiction or a waiver of sovereign immunity. Finally, the government argues that plaintiff's action is really a claim for monetary damages, which falls within the exclusive jurisdiction of the Court of Claims under the Tucker Act, 28 U.S.C. § 1491.
Our first task is to determine whether plaintiff's complaint, as framed, sufficiently pleads a basis for subject matter jurisdiction. One basis of jurisdiction asserted by the plaintiff is section 702 of the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (APA). The United States Supreme Court expressly has held that the APA does not create an implied grant of subject matter...
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