Continental Heller Construction v. United States

36 Cont. Cas. Fed. 75,944, 21 Cl. Ct. 471, 1990 U.S. Claims LEXIS 362, 1990 WL 138998
United States Court of Claims·Decided September 24, 1990·No. No. 90-292C·Published·Cited by 7 cases

Opinion

OPINION

LYDON, Senior Judge:

This government contract case is before the court on defendant’s motion to dismiss plaintiff’s two-count complaint seeking monetary and declaratory relief for lack of subject matter jurisdiction, pursuant to RUSCC 12(b)(1). Plaintiff, Continental Heller Construction (CHC), a building contractor, filed suit in this court contesting the final decision of a contracting officer finding plaintiff responsible for the payment of a sewer connection fee in connection with a contract plaintiff had with the General Services Administration (GSA). In responding to defendant’s motion to dismiss, plaintiff concedes that its monetary claim is premature and should be dismissed, but asserts that its claim for declaratory relief is properly before the court, as it is essentially a government claim against plaintiff. After careful review of the parties’ submissions, oral argument being deemed unnecessary, the court finds merit in defendant’s position.

FACTS

Plaintiff CHC entered into a contract' with defendant, acting through GSA, for construction of a federal building in Long Beach, California. During the course of the contract, a dispute arose between the parties as to whether the contract required plaintiff to pay a sewer connection fee imposed by a local ordinance in the county sanitation district where the building was located. GSA ordered CHC to pay the connection fee, and CHC refused to do so. On January 30, 1989, CHC wrote a letter to GSA explaining the reasons for its belief that the contract did not obligate CHC to pay the connection fee, and requesting a written decision on the issue from the contracting officer.

On April 7, 1989, the contracting officer issued a written decision finding CHC responsible under the contract for payment of the sewer connection fee. Neither CHC’s letter nor the contracting officer’s decision identified any monetary claim.

On April 4, 1990, CHC filed a direct access suit in this court, pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-13 (1988), to appeal the contracting officer’s decision. At the time plaintiff filed suit, neither CHC nor GSA had paid the sewer connection fee. Count 1 of plaintiff’s two-count complaint seeks an equitable adjustment to the contract price, due to GSA’s alleged change in the contract to require CHC’s payment of the connection fee, in an undetermined amount estimated to be over $150,000.

In Count 2, plaintiff characterizes its claim as seeking a “declaratory judgment” that CHC is not obligated under the contract to pay the connection fee, or in the alternative, that GSA is responsible for paying the fee.

Defendant’s motion to dismiss contends that the court lacks subject matter jurisdiction over both claims in the complaint. As to Count 1, defendant argues that the monetary claim for an equitable adjustment should be dismissed because plaintiff never submitted it to the contracting officer for a final decision, as required by section 605(a) of the CDA. As to Count 2, defendant maintains that this court lacks jurisdiction under the CDA to grant the declaratory relief plaintiff seeks.

In its opposition to defendant’s motion, plaintiff concedes that defendant is correct in arguing that Count 1 should be dismissed. Plaintiff agrees that “a money claim cognizable by the Claims Court under the CDA has not yet accrued because CHC has not yet sustained any specific monetary damages to date nor has it presented any specific monetary claim to the Contracting Officer for decision.” Therefore, plaintiff requests that the court dismiss Count 1 without prejudice. With regard to Count 2, plaintiff maintains that the court has jurisdiction over the declaratory judgment claim because it is actually a government claim against plaintiff.

[473] DISCUSSION

The court agrees with the parties that the court has no jurisdiction over Count 1 of plaintiffs complaint for an equitable adjustment to the contract price, since the claim was never the subject of a contracting officer’s final decision. This is a jurisdictional prerequisite under the CDA. 41 U.S.C. § 605(a); Paragon Energy Corp. v. United States, 221 Ct.Cl. 176, 192, 645 F.2d 966, 976 (1981), aff'd, 230 Ct.Cl. 884 (1982); Conoc Constr. Corp. v. United States, 3 Cl.Ct. 146, 147-48 (1983). Accordingly, the court grants defendant’s motion to dismiss Count 1 of plaintiff’s complaint.

With regard to defendant’s motion to dismiss Count 2 of plaintiff’s complaint, which seeks a declaratory judgment that plaintiff is not responsible under the contract for paying the sewer connection fee, the issue is whether the court has jurisdiction, under the CDA, to render a declaratory judgment unaccompanied by a monetary claim. There is case law on both sides of the issue. For the following reasons, the court concludes that it has no jurisdiction to grant the type of declaratory relief plaintiff seeks here.

Prior to the enactment of the CDA in 1978, this court’s predecessor, the Court of Claims, had no jurisdiction to grant declaratory relief such as plaintiff requests here. The court’s jurisdiction was generally limited to claims for monetary relief, under its jurisdictional statute, the Tucker Act, 28 U.S.C. § 1491. In United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), the Supreme Court held that, absent an express grant from Congress, “we decline to assume that the Court of Claims has been given the authority to issue declaratory judgments.” United States v. King, supra, 395 U.S. at 5, 89 S.Ct. at 1503.

In 1982, Congress amended section 1491(a)(2) of the Tucker Act to add the following sentence: “The Court of Claims [now the Claims Court] shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under the Contract Disputes Act of 1978.” 28 U.S.C. § 1491(a)(2). In 1982, Congress also amended section 1491(a)(3) of the Tucker Act, in which Congress expressly provided the court with limited declaratory judgment authority over claims brought before a contract is awarded. 28 U.S.C. § 1491(a)(3).

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Continental Heller Construction v. United States, 36 Cont. Cas. Fed. 75,944, 21 Cl. Ct. 471, 1990 U.S. Claims LEXIS 362, 1990 WL 138998 (cc 1990).

36 Cont. Cas. Fed. 75,944 (Continental Heller Construction v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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