McSheffrey v. United States

58 Fed. Cl. 21, 2003 U.S. Claims LEXIS 235, 2003 WL 22427410
CourtUnited States Court of Federal Claims
DecidedAugust 7, 2003
DocketNo. 02-1514
StatusPublished
Cited by10 cases

This text of 58 Fed. Cl. 21 (McSheffrey 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
McSheffrey v. United States, 58 Fed. Cl. 21, 2003 U.S. Claims LEXIS 235, 2003 WL 22427410 (uscfc 2003).

Opinion

OPINION AND ORDER

HEWITT, Judge.

This case is before the court on defendant’s motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff seeks a judgment against defendant in the amount of $70,984.30 plus interest. Amended Complaint (Am.Compl.) ¶ II. Plaintiff requests the court to rule the termination of United States Postal Service (Postal Service or USPS) Contract No. HCR 18660 to be a “Termination for Convenience,” thereby entitling her to relief in the form of “funds suspended by [USPS],” “liquidated damages,” and “compensatory damages.” Id. ¶¶ II.1-II.3.

I. Background1

Plaintiff was awarded Contract No. HCR 18660 (the Contract) on January 8, 1996, for the transportation of Express Mail between Wilkes-Barre, Pennsylvania Processing and Distribution Facility (P & DF) and the Philadelphia, Pennsylvania Airport Mail Center (AMC). Defendant’s Motion to Dismiss (Def.’s Mot.) at 2; Exhibit to Defendant’s Motion to Dismiss (Def.’s Ex.) 1 ¶ 1 (McSheffrey.., PSBCA No. 4061, 1998 PSBCA LEXIS 16, 98-2 B.C.A. (CCH) ¶ 29,826, 1998 WL 320278 (June 18, 1998)). The Contract contained Basic Surface Transportation Services Contract General Provisions, Postal Service Form 7407, July 1992, which, in clause 16, TERMINATION BY THE POSTAL SERVICE FOR DEFAULT, authorized the Postal Service Contracting Officer (Contracting Officer) to terminate the Contract for default if the contractor failed to perform service according to the terms of the Contract. Def.’s Ex. 1 ¶ 3.

[23]*23Plaintiff performed the Contract in a satisfactory manner for the first eleven months. Id. ¶ 5. However, on January 4 and January 9, 1997, neither plaintiff nor any driver employed by her arrived at the Wilkes-Barre facility to transport Express Mail to Philadelphia. Def.’s Mot. at 2; Def.’s Ex. 1 ¶¶ 5, 6. The Postal Service had to procure a replacement transporter on those dates. Def.’s Mot. at 2; Def.’s Ex. ¶¶ 5, 6.

From January 14 to January 23, 1997, plaintiff failed to perform service under the Contract and did not speak with any of defendant’s contracting officials concerning the reason for her failure to perform. Def.’s Ex. 1 ¶ 12. On January 23,1997, the Contracting Officer terminated plaintiffs Contract for default because of her failure to perform and also because she was unavailable to discuss her failure to perform. Id. ¶ 13. In his final decision, the Contracting Officer terminated the Contract effective January 16, 1997, citing plaintiffs abandonment of performance as the reason for the decision to terminate for default. Id.

Plaintiff appealed the Contracting Officer’s final decision directly to the Postal Service Board of Contract Appeals (PSBCA or the Board). See Def.’s Ex. 1. The Board found that “[t]he contract required Appellant to ensure that the contract was performed and to remain easily accessible in the event problems arose on the route. Appellant failed on both of these obligations.” Def.’s Ex. 1 at *7. Furthermore, the Board observed that “nothing in [plaintiffs] contract expressly required the [Contracting [O]fficer to furnish [plaintiff] with a written warning of his intent to terminate the contract for default prior to doing so.” Id. at *8. Thus, the Board held that “the default termination was proper.” Id.

The Board added that it was without jurisdiction to hear the claims for compensation contained in plaintiffs complaint because the submission of a written claim to the Contracting Officer is a prerequisite to PSBCA’s jurisdiction over any of plaintiffs monetary claims. Def.’s Ex. 1 at *9. Accordingly, plaintiffs monetary claims were dismissed without prejudice. Id.

Plaintiff filed a motion for reconsideration of PSBCA’s opinion, but “she merely repeated arguments in her appeal” and PSBCA found nothing that would persuade it to change its earlier decision. Def.’s Mot. at 3; Def.’s Ex. 2 at *2 (McSheffrey, PSBCA No. 4061, 1998 LEXIS 33, 98-2 B.C.A. (CCH) ¶ 30,081, 1998 WL 761882 (Oct. 22, 1998)). Almost three years later, on June 16, 2001, plaintiff submitted a claim to the Contracting Officer for alleged damages and lost profits arising from the termination of the Contract that the PSBCA held was properly terminated for default. Def.’s Mot. at 3; Am. Compl. Ex. 1. The Contracting Officer denied her claim as well as each and all of her requests for compensation. Am. Compl. Ex. 2; Def.’s Mot. at 3.

On July 25, 2002, plaintiff appealed the Contracting Officer’s decision to the Court of Appeals for the Federal Circuit, but the court notified her that it was without jurisdiction to hear her claim. Def.’s Mot. at 3. Plaintiffs claim was transferred to this court on November 5, 2002. Id.

In her complaint, plaintiff requests a total of $70,984.30 plus allowable interest. Am. Compl. ¶ II. Plaintiff seeks a release of funds suspended by the Postal Service and payment of those funds to plaintiff in the amount of $641.13, plus interest to date. Id. ¶ II.l. In addition, plaintiff asks the court to remit liquidated damages to her “as allowed by contract for Termination For Convenience in the amount of $9,252.61, plus interest to date.” Id. ¶ II.2. Plaintiff also requests compensatory damages “in lieu of thirty days notice of contract termination as allowed by contract for ‘Termination for Convenience’ in the amount of $2,198.16 plus interest to date.” Id. ¶ II.3. Furthermore, plaintiff asks the court to remit as bid wages to plaintiff $17,220.00 per annum, plus interest to date for the projected contract term of February 1, 1997 through June 30, 2000 for the non-award of Contract No. 328EG “caused by wrongful termination of [the Contract] and misrepresentation of fact conveyed to Atlanta Area DNO by the Allegheny Distribution Networks Office.” Id. ¶ II.4. Finally, plaintiff requests the removal of charges allegedly wrongfully levied by the Postal Service, In[24]*24ternal Revenue Service, and other applicable agencies in the amount of $4,729.98 plus all interest and fees to date. Id. ¶ II.5.

II. Discussion

A. Summary Judgment

A motion to dismiss for failure to state a claim upon which relief can be granted is treated as a motion for summary judgment under Rule 56 if “matters outside the pleadings are presented to and not excluded by the court.” RCFC 12(b)(6). Both parties included materials outside of the pleadings in their briefing. Therefore, the court addresses defendant’s motion as a motion for summary judgment under Rule 56.

Under Rule 56, summary judgment is warranted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact that might significantly affect the outcome of the litigation is material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputes over facts that are not outcome determinative will not preclude the entry of summary judgment. Id. at 247-48, 106 S.Ct. 2505.

The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett,

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Cite This Page — Counsel Stack

Bluebook (online)
58 Fed. Cl. 21, 2003 U.S. Claims LEXIS 235, 2003 WL 22427410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcsheffrey-v-united-states-uscfc-2003.