Mark Smith Construction Co. v. United States

34 Cont. Cas. Fed. 75,523, 15 Cl. Ct. 32, 1988 U.S. Claims LEXIS 109, 1988 WL 59472
CourtUnited States Court of Claims
DecidedJune 9, 1988
DocketNo. 53-87C
StatusPublished
Cited by14 cases

This text of 34 Cont. Cas. Fed. 75,523 (Mark Smith Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mark Smith Construction Co. v. United States, 34 Cont. Cas. Fed. 75,523, 15 Cl. Ct. 32, 1988 U.S. Claims LEXIS 109, 1988 WL 59472 (cc 1988).

Opinion

OPINION

REGINALD W. GIBSON, Judge:

Introduction

Plaintiff, Mark Smith Construction Co., Inc. (Smith) filed a four-count complaint, its second,1 in this court on February 2, 1987, seeking $107,099.51 in construction related equitable adjustments and an unspecified amount of interest on a payment allegedly withheld .under contract No. J131c-347. Smith filed the instant complaint, notwithstanding the prior dismissal of the identical four (4) counts for want of jurisdiction, purportedly because the contracting officer failed to issue a final decision on the claims presented herein or even acknowledge that a decision would be forthcoming as required by the Contract Disputes Act, 41 U.S.C. § 605(c)(1).2 Jurisdiction in this court is asserted under the Contract Disputes Act, 41 U.S.C. §§ 609(a)(1),3 and4 and [33]*3328 U.S.C. § 1491(a)(1).5 Plaintiff’s Brief In Opposition to Defendant’s Motion to Dismiss.

This case is again before the court on defendant’s RUSCC 12(b)(4) motion to dismiss for failure to state a claim upon which relief can be granted. By such challenge herein, defendant asserts that the current issue of jurisdiction raised in its motion is controlled by the doctrine of res judicata. In other words, the defendant specifically contends that this court’s prior decision in Mark Smith Construction Co., Inc. v. United States, 10 Cl.Ct. 540 (1986)6 (hereinafter Smith Const. I), dismissing the plaintiff’s claims for lack of jurisdiction, is controlling and dispositive with regard to the jurisdictional issue at bar. Thus, reasons defendant, the doctrine of res judicata as applied to the jurisdictional issue precludes this court from accepting jurisdiction over the identical claims raised in this complaint as were previously raised and disposed of in Smith Const. I. We find, because of said circumstance, that the defendant’s position is well founded. Accordingly, for the reasons hereinafter expressed, this court is compelled to again grant the defendant’s motion to dismiss the identical four (4) counts which were previously raised in the complaint filed August 13, 1984.

Statement of the Case

“Because the Court is dismissing [all of the four counts in] the above captioned case on the basis of res judicata, a review of the facts in the plaintiff’s prior suit is necessary.” See Reidt v. United States, 13 Cl.Ct. 741 (1987). Therefore, the section of this court’s prior opinion in docket no. 415-84C, filed on July 31, 1986, entitled “Statement of the Case,” is quoted, in haec verba, as follows:

In this five [7] count government contract case, Mark Smith Construction Co. seeks $108,000 in construction related equitable adjustments, an unspecified amount of interest on a withheld payment, and the refund of some $8,000 in retainage previously applied by the contracting officer toward the payment of the wages of one of plaintiff’s subcontractors as required under the Davis-Bacon Act. These claims arise out of a contract (#J131c-347) entered into on January 24, 1983, between plaintiff and the Bureau of Prisons, Department of Justice (BOP), for the renovation of the third floor of the U.S. Penitentiary in Atlanta, Georgia. Plaintiff alleges that its claims, all counts, are properly here pursuant to the direct access provision of the Contract Disputes Act (CDA), 41 U.S.C. §§ 601-613 (1982)....
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... Prior to filing subject action in this court on August 13, 1984, plaintiff presented the three equitable adjustment claims (Counts I — III of the complaint here) and the withheld payment claim (Count V of the complaint here) to the contracting officer, Janice B. Dumas. Ms. Dumas denied each claim by sepa[34]*34rate letters to plaintiff dated December 16, 1983, February 21, 1984, February 21, 1984, and January 4, 1984. Plaintiff was specifically informed by each letter of its right to appeal each denial to either the Department of Transportation Contract Appeals Board (Board) or to the U.S. Claims Court. Initially, relative to what has been described supra as Counts I — III and V in this court, plaintiff previously filed timely notices of appeal and then complaints with said Board. Answers thereto were later filed in opposition to each appeal by the BOP, and pretrial discovery was also commenced.
Thereafter, during the discovery phase, plaintiff apparently had a change of heart relative to the precise forum in which it desired to pursue its appeals and proceeded to modify its litigation strategy. Motion(s) for dismissal, without prejudice, as to claims later filed in this court as Counts I — III and V, were filed with the Board. On June 18, 1984, without explanation, plaintiffs motions were granted by the Board, and the Board appeals relative to Counts I — III and V {i.e., docket Nos. 1471, 1512, 1517, and 1454, respectively) were dismissed without prejudice with concurrence of respondent, the defendant here.
Less than two months later, on August 13, 1984, plaintiffs five count complaint was filed in this court. Contained therein, as noted supra, were Counts I — III and V, which were in all material particulars identical to those four docketed claims, supra, appealed to and later dismissed by the Board on June 18, 1984. In addition, as Count IV, plaintiff alleged a “conspiracy” between the BOP and the Department of Labor (DOL) in instigating an investigation of plaintiffs and its subcontractor’s wage practices relative to the standards of the Davis-Bacon Act, 40 U.S.C. § 276a et seq. (1982). Plaintiff alleges, inter alia, that this investigation cost it $8,000 in wage payments wrongfully withheld from it due to the alleged wrongful wage practices of its subcontractors _

Smith Const. I, 10 Cl.Ct. at 541-43 (emphasis in original).

For purposes of the current (April 3, 1987) motion to dismiss, the defendant accepts as true the plaintiffs assertions contained in the complaint. Defendant’s Motion to Dismiss p. 2, n. 1. Reynolds v. United States, 846 F.2d 746 (CAFC 1988). Therefore, the court finds that the operative facts, delineated infra, are undisputed by the parties.

In the present action, following the court’s opinion of July 31, 1986, granting defendant’s motion to dismiss all five counts in the initial complaint for want of jurisdiction, Smith, once again, filed a four-count complaint, each of which counts was, admittedly, “previously ... presented ... [in] Case No. 415-84C” in this court.

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Bluebook (online)
34 Cont. Cas. Fed. 75,523, 15 Cl. Ct. 32, 1988 U.S. Claims LEXIS 109, 1988 WL 59472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-smith-construction-co-v-united-states-cc-1988.