Bowers Investment Co. v. United States

104 Fed. Cl. 246, 2011 U.S. Claims LEXIS 657, 2011 WL 8190467
CourtUnited States Court of Federal Claims
DecidedApril 22, 2011
DocketNo. 10-677 C
StatusPublished
Cited by11 cases

This text of 104 Fed. Cl. 246 (Bowers Investment Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowers Investment Co. v. United States, 104 Fed. Cl. 246, 2011 U.S. Claims LEXIS 657, 2011 WL 8190467 (uscfc 2011).

Opinion

OPINION AND ORDER

HEWITT, Chief Judge.

Before the court are plaintiffs Complaint (Compl.), Docket Number (Dkt. No.) 1, filed October 6, 2010; defendant’s Motion to Dismiss (defendant’s Motion or Def.’s Mot.), Dkt. No. 10, filed December 1, 2010; plaintiffs Response to Defendant’s Motion to Dismiss (Pl.’s Resp.), Dkt. No, 13, filed December 29, 2010; and defendant’s Reply in Support of Defendant’s Motion to Dismiss (Def.’s Reply), Dkt. No. 14, filed January 19, 2011. Plaintiffs Complaint presents two claims, referred to as the nonpayment claim and the underpayment claim. Defendant moves to dismiss plaintiffs nonpayment claim for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). Def.’s Mot. 1. Defendant also moves to dismiss both the nonpayment and underpayment claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the RCFC. Def.’s Mot. 1. For the following reasons, the court GRANTS defendant’s Motion to Dismiss.

I. Background

On October 1, 1993 plaintiff Bowers Investment Company, LLC (Bowers or plaintiff) and defendant Federal Aviation Administration (the FAA or defendant) entered into a lease (Lease) of office and warehouse space in South Fairbanks, Alaska. Compl. ¶¶ 5-6. Under the Lease, the FAA was obligated to make monthly rental payments beginning in January 1994. Compl. ¶ 8. The Lease stated that the government would pay plaintiff an “annual rent of $256,291.20 ... at the rate of $21,357.60 ... per month in arrears.” Compl. ¶ 7 (citing Ex. A,1 FAA-Lease No. DTFA04-93-L-84029, May 25, 1993) (Lease). The rental payments to be made in arrears under the Lease were “due on the first workday of each month.” Lease 4 (General Clause 22.552.232-71(a)(1)). The Lease was renewable yearly at the FAA’s option, with the following provision: “beginning in year 6 (October 1, 1998) the [government shall pay [plaintiff] annual rent of $264,259.20 at the rate of $22,021.60 per month in arrears.” Compl. ¶ 12 (citing Lease 2). The parties ultimately extended the Lease to September [250]*25030, 2006, Compl. ¶ 6, and modified the Lease eight times, see Compl. ¶ 16 (referring to “Modifications 7 and 8”); Pl.’s Mot. Ex. F (titled “Modification No. Eight (8)”).2

After the Lease expired, plaintiff submitted several claims to the FAA Real Estate Contracting Officer (Contracting Officer or CO), Bowers Inv. Co. v. Dep’t of Transp., CBCA 1196, 09-2 BCA ¶ 34,238 (2009) (CBCA Decision); see Contract Disputes Act of 1978 (CDA)3, Act of Jan. 4, 2011, Pub.L. No. 111-350, § 7103(a)(1), 124 Stat. 3817-18 (“Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.”), one of which was a claim for unpaid rent for September 2006 (September 2006 claim), CBCA Decision *13. Given that the Lease required the FAA to make rental payments in arrears, plaintiff argued that the FAA’s September 13, 2006 rental payment was for the rent due for August 2006, and that the FAA therefore failed to pay its last month’s rent. Id. at *2, *13-*14. The Contracting Officer denied plaintiffs claims, including the September 2006 claim, and plaintiff appealed to the Civilian Board of Contract Appeals (CBCA). Id. at *1. Pub.L. No. 111-350, §§ 7104(a), 124 Stat. 3820 (“A contractor, within ninety days from the date of receipt of a contracting officer’s decision ..., may appeal the decision to an agency board....”).

During litigation before the CBCA, plaintiff “became aware that the first three months of the [L]ease had never been paid.” Sept. 29, 2010 Aff. of Jerry Bowers (Bowers Aff.), Dkt. No. 5, ¶ 6. In plaintiffs reply brief before the CBCA (plaintiffs Appellant Reply Brief or PL’s Appellant Reply Br.), plaintiff claimed that there was “compelling evidence that the rent for the first three months of the leasehold — January, February and March 1994 — was not paid.” Def.’s App. to Def.’s Mot. to Dismiss (Def.’s App.) A82 (PL’s Appellant Reply Br.).4 Plaintiff argued that it was “entitled to be paid for these three missing rent payments.” Id. The CBCA disagreed, finding that the FAA “ha[d] submitted sufficient evidence regarding the timing of its payments and the periods of occupancy that each payment covered.” CBCA Decision *15; see also id. at *14 (“For us to agree with [plaintiffs] argument would require our [251]*251acceptance of a scenario under which one or more of the first three payments commencing January 1994 were not made and Bowers did not complain in writing or otherwise regarding the FAA error.”).

On November 25, 2009 plaintiff submitted to the FAA Contracting Officer the nonpayment and underpayment claims currently before the court. Compl. ¶ 17. Plaintiffs nonpayment claim alleges that the FAA failed to pay the first three rental payments due under the Lease. See Compl. ¶ 23; see also Compl., Demand For Relief, ¶ 1 (seeking $56,640.78 plus interest for nonpayment claim). Plaintiffs underpayment claim alleges that “the FAA has underpaid its rental obligation by $664 every month from October 1,1998 to October 1, 2006.” Compl. ¶ 21; see also Compl., Demand For Relief, ¶ 1 (seeking $64,408.00 plus interest for underpayment claim). The contracting officer denied these claims on January 27, 2010. Compl. ¶ 17. Plaintiff timely appealed to the Court of Federal Claims on October 6, 2010. See Compl. ¶ 17 (received and filed on Oct. 6, 2010); Pub.L. No. 111-350, § 7104(b)(1), (3), 124 Stat. 3820 (permitting a contractor “to bring an action directly on the claim in the United States Court of Federal Claims” within twelve months of the contractor’s receipt of the contracting officer’s decision regarding the claim).

On December 1, 2010 defendant filed its Motion to Dismiss, alleging that the court lacks jurisdiction over plaintiffs nonpayment claim under Rule 12(b)(1) and that plaintiff failed to state a claim upon which relief can be granted under Rule 12(b)(6). Def.’s Mot. 1. With respect to defendant’s Rule 12(b)(1) motion, defendant argues that “Bowers made a binding election to pursue its claim for nonpayment for the first there months’ rent before the Civilian Board of Contract Appeals.” Def.’s Mot. 1. Under the CDA, a contractor may appeal a contracting officer’s final decision in one of two forums: the appropriate board of contract appeals or the Court of Federal Claims. See Pub.L. No. 111-350, § 7104(a), (b)(1), 124 Stat. 3820. Referred to as the election doctrine, a contractor is precluded from appealing its claim in both forums. Nat’l Neighbors, Inc. v. United States, 839 F.2d 1539, 1542 (Fed.Cir.1988). Defendant argues that plaintiffs nonpayment claim “is based upon the same basic facts” as plaintiffs September 2006 claim, the denial of which plaintiff appealed to the CBCA. Def.’s Mot. 10. Defendant contends that plaintiffs binding election to appeal its September 2006 claim — which, according to defendant, encompasses plaintiffs nonpayment claim — to the CBCA deprives the Court of Federal Claims of subject-matter jurisdiction to entertain plaintiffs nonpayment claim. Def.’s Mot. 5.

With respect to defendant’s Rule 12(b)(6) motion, defendant argues that both plaintiffs nonpayment claim and its underpayment claim are barred by claim preclusion. Def.’s Mot. 1.

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Bluebook (online)
104 Fed. Cl. 246, 2011 U.S. Claims LEXIS 657, 2011 WL 8190467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-investment-co-v-united-states-uscfc-2011.