Rollock Co. v. United States, 12-245C
| Decision Date | 28 March 2014 |
| Docket Number | No. 12-245C,12-245C |
| Parties | ROLLOCK COMPANY, et at., Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Contract dispute; property acquisition and
relocation contract entered to support
creation of the Flight 93 National
Memorial; claims under the Contract
Disputes Act, 41 U.S.C. § 7104, and the
Uniform Relocation Assistance and Real
Property Acquisition Policies Act, 42
U.S.C. § 4622; jurisdiction; exhaustion of
administrative remedies; inchoate claims
and contracting officer's incipient
decisions; remand
Irving M. Portnoy, Portnoy & Quinn, LLC, Pittsburgh, Pennsylvania, for plaintiff.
Sarah M. Valenti, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her on the briefs were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was James Epstein, Office of the Northeast Regional Solicitor, United States Department of the Interior.
The dispute in this case is over terms of a property acquisition and relocation contract between the government and the plaintiffs, the Rollock Company, Anthony Kordell, and Christopher Kordell (collectively "the Rollock plaintiffs" or "Rollock"). The National Park Service ("NPS") purchased land owned by the Rollock plaintiffs for the Flight 93 National Memorial, land on which Rollock operated a scrap metal recycling facility. Compl. ¶¶ 2, 9. 1 In contemplation of the land purchase, the contract between the parties provided for: (1) the sale of business scrap inventory from Rollock to NPS and (2) a self-move of Rollock's business personal property, including embedded materials, to a new location. NPS agreed to pay Rollock for monitoring costs associated with disposition of the scrap inventory NPS was purchasing andremoval of Rollock's business personal property from the land. Rollock alleges that NPS violated the terms of the contract by refusing to pay the full amount owed for the costs of monitoring and of removal of Rollock's business personal property. Compl. ¶¶ 28-29. Pending before the court is the government's Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, for Summary Judgment ("Def's Mot."), ECF No. 15. This motion has been fully briefed, and a hearing was held on January 7, 2014.
In 2008, NPS approached the Rollock plaintiffs to discuss purchasing the property on which Rollock's scrap business was located, for the purpose of reconfiguring the property as part of a memorial for the victims of Flight 93, which crashed as a result of terrorist acts on September 11, 2001. See Pl.'s Br. in Opp'n to Def.'s Mot. ("Pl.'s Opp'n") at 5, ECF No. 18; see also Def.'s Mot. at 2. Between July 28, 2008 and July 17, 2009, NPS and Rollock negotiated an agreement for the acquisition of the land and another agreement for the purchase of certain materials and the relocation of Rollock's business. See Def.'s App. A1-A50.3 During this discussion, NPS informed Rollock that relocation expenses would be covered by the government in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act ("Relocation Act"), Pub. L. 91-646, 89 Stat. 1894 (1971) (), and its accompanying regulations found at 49 C.F.R. Part 24. See Def.'s App. A12 (). During the negotiations, Rollock notified NPS that it considered materials embedded in the ground to be personal property of substantial value and that it wished to reclaim this material as was customary for scrap metal operators. Def.'s App. A15-16 (Letter from Moot to Beyer (Feb. 18, 2009)).4 NPS agreed that embedded materials should be considered personal property and included in the relocation process, Def.'s App. A24 (Letter from Robert Merryman, O.R. Colan Assocs., to Moot (Mar. 26, 2009)), and further advised Rollock that it had the "right to have professional services performed to assist with [the] move" but that "[a]ny professional services needed will require advanced approval from [NPS] before fees can be authorized." Def.'s App. A21 (Letter from Beyer to Moot (Mar. 31, 2009)).
As a result of these negotiations, NPS prepared and transmitted a "Draft Proposed Relocation Agreement" on July 17, 2009. Def.'s App. A34. This agreement was executed by Rollock on August 25, 2009 and by NPS on August 27, 2009. Def.'s App. A58-78 ("RelocationAgreement" or "Agreement"). NPS agreed to purchase Rollock Company's stockpiled business scrap inventory for $1,812,000.00, a scale for $65,000.00, and stockpiled topsoil for $290,192.00. Def.'s App. A58-59. NPS also agreed to provide self-move relocation costs for Rollock's embedded material inventory based on 49 C.F.R. 24.301(d)(2)(i).5 Def.'s App. A59.6 The parties agreed that NPS would excavate the embedded material and place it in stockpiles at the Rollock site. Id. Rollock would then remove the stockpiles and transport them to a new location within 50 miles of the Rollock site. Id. The timeline provided in the Agreement stated that NPS would excavate the embedded material within sixty days from the disposition of the business scrap inventory NPS was purchasing and that Rollock would remove the resulting stockpiles within thirty days after NPS notified it that the stockpiles were completed. Id.
Def.'s App. A59. NPS and Rollock later confirmed that the rate for the monitor at the Rollock site would be $60.00 per hour. See Def.'s App. A86 (Letter from Moot to Beyer (Oct. 19, 2009)); Def.'s Mot. at 7; Pl.'s Opp'n at 8.
NPS acquired title to the Rollock site on September 23, 2009. Pl.'s Opp'n at 7. Thereafter, Rollock began submitting claims to NPS for reimbursement of monitoring costs. The first claim submitted totaled $15,840.00 and covered the period from October 14, 2009 to November 24, 2009. Def.'s App. A87. This claim was calculated at the rate of $60.00 per hour with overtime at $90.00 per hour. Id. With its claim, Rollock submitted an affidavit by Anthony Kordell certifying the hours worked by the monitor. Def.'s App. A87. On December 10, 2009, NPS, without requiring additional documentation from Rollock, approved the claim. See Def.'s App. A92. Rollock continued to submit claims for monitoring in the same manner, i.e., with anaffidavit certifying hours worked by the monitor and at the hourly rate of $60.00 with overtime calculated at $90.00 per hour. Pl.'s Opp'n at 8; see also Def.'s Mot. at 8. Between March 29, 2010 and May 5, 2010, Rollock submitted three additional claims for monitoring that took place between November 25, 2009 and April 27, 2010. Pl.'s Opp'n at 8; Def.'s Mot. at 8.7 On March 31, 2010, Rollock submitted to NPS a letter outlining concerns it had regarding progress on removal and payment for the business scrap inventory, recovery of the embedded material, and payment for the outstanding claims for monitoring costs. Def.'s App. A112-117 (Letter from Moot to Anthony Conte, NPS Regional Solicitor (Mar. 31, 2010)).
On June 18, 2010, NPS notified the Rollock plaintiffs that "to process payment for the monitor[,] the NPS must have receipted evidence of payment to the employee and timesheets." Def.'s App. A120 (Letter from Conte to Moot (June 18, 2010)). In response, on June 25, 2010, Rollock submitted canceled checks issued to the monitor dating from October 30, 2009 to May 28, 2010. Def.'s App. A121, A134-49. Rollock also submitted an additional claim of $12,660.00 for monitoring between April 28, 2010 to May 25, 2010, bringing the total unpaid claim amount to $69,465.00. Def.'s App. A127.8 The documents that Rollock submitted showed that the monitor was being paid an hourly rate of $40.00 with overtime calculated at $60.00 per hour. Def.'s App. A157. On July 9, 2010, NPS responded to the Rollock plaintiffs to advise them that it considered the total reimbursable costs for the monitor to be the actual expense paid by Rollock to the monitor, calculated at $40.00 of regular pay per hour, rather than the earlier agreed rate of $60.00 per hour. Def.'s App. A159 (Letter from Beyer to Moot (July 9, 2010)). NPS determined that it owed Rollock a total of $29,108.39, the difference between the total monitoring expense of $44,948.39 actually paid to the monitor less $15,840.00 already paid by NPS to Rollock. Id. Rollock responded on July 14, 2010, stating that it believed the contract indicated that the proper reimbursement amount should be calculated based on $60.00 per hour and that the actual wages of $40.00 per hour did not adequately cover the costs to the company for employing the monitor. Def.'s App. A161 (Letter from Moot to Beyer (July 14, 2010)).9 NPS disagreed; on July 14, 2010, it paid Rollock $29,108.39, reflecting the total it believed was due to Rollock. Def.'s App. A165.10
On September 7, 2010, NPS informed Rollock that it was "not obligated to pay . . . monitoring costs beyond June 24, 2010" because, according to NPS, stockpiling of...
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