Mendenhall v. United States

36 Cont. Cas. Fed. 75,836, 20 Cl. Ct. 78, 1990 U.S. Claims LEXIS 83, 1990 WL 35022
United States Court of Claims·Decided March 28, 1990·No. No. 73-89C·Published·Cited by 18 cases

Opinion

OPINION AND ORDER

ANDEWELT, Judge.

In this government contract action, plaintiff, David L. Mendenhall, appearing pro se, seeks $85,000 in damages relating to six contracts he entered with the United States Department of Agriculture (USDA) covering the harvesting of timber in specified areas of the Clearwater National Forest in Kamiah, Idaho. This action is presently before the court on defendant’s motion to dismiss the complaint pursuant to RUSCC 12(b)(1). Defendant alleges that plaintiff has not satisfied the jurisdictional requirements for suit in this court under the Contract Disputes Act (CDA), 41 U.S.C. § 601 et seq.

Facts

The six contracts in issue fall into two groups. The first two contracts, Nos. 909766 and 910129, cover the Austin Ridge area of the Clearwater'National Forest (the Austin Ridge contracts). These contracts were entered on June 13 and July 28, 1986, respectively, and had termination dates of September 30 and December 31, 1986, respectively. The four later contracts, Nos. 910251, 910269, 910277, and 022784, cover portions of the Musselshell and Mox Creek areas of the Clearwater National Forest (the Musselshell and Mox Creek contracts). These contracts were entered on August 4, 1986, and had termination dates of December 31, 1986.

On September 15, 1986, prior to the termination date of any of the she contracts, defendant closed an access road to the area covered under the Austin Ridge contracts (the Austin Ridge access road). The Clear-water National Forest Travel Plan required that the road be closed from September 15 to June 15 for the protection of game during hunting season. Plaintiff objected to the road being closed because it would prevent him from harvesting the remainder of the timber covered under the Austin Ridge contracts. While the USDA refused plaintiff’s request to keep the road open, it did agree to extend the termination dates of those two contracts by one year.

Thereafter, on November 5 and December 2,1986, plaintiff sent tó the contracting officer two letters which plaintiff alleges each qualify as a claim under the terms of the contracts and the CDA. In his November 5, 1986, letter, plaintiff requested that the contracting officer take specified action with respect to the “agreements or contracts now existing between myself and the forest service, that have to do with Mox Creek, or the Mussel-shell area.” “In the first instance,” plaintiff requested that the contracting officer cancel the contracts and return any bonds or deposits that plaintiff had paid on them. “In the second instance,” plaintiff requested that performance on the contracts be continued “until we can reconcile our differences as to the final disposition satsfactory [sic] to both of [81] us.” The only ground specifically set forth in the letter to support plaintiff’s requests is that “changed conditions” had occurred with respect to the timber sales covered by the four Musselshell and Mox Creek contracts.1

In a November 18, 1986, response, the contracting officer denied both requests in plaintiff’s November 5, 1986, letter and concluded that there was “no basis” for either cancellation or continuation of the four Musselshell and Mox Creek contracts. The contracting officer indicated that plaintiff did not satisfy “the normal requirements” for adjustment or extension of the contract terms in that he failed “to demonstrate that weather or physical conditions on the sale area beyond [his] control kept [him] from being able to perform on the contract, or that [he] made an effort at diligent performance by removing at least 75 percent of the sale volume.” The contracting officer indicated that the USDA would reconsider its position if plaintiff could demonstrate that “changed conditions in the contract are of catastrophic extent,” but that his November 5, 1986, letter “did not state what the changed conditions are or what evidence [plaintiff has] to substantiate [his] contention.” The contracting officer acknowledged that there may have been a post-sale change in condition in one of the four contracts in that some volume of timber may be missing from the contract site. But the contracting officer stated:

In order to claim any loss on your part you must perform under the terms of the contract. We will be happy to supply you with information needed to prepare and submit a claim. You must be able to show through evidence the extent of your loss and it must be clearly described in the claim.

Turning to plaintiff’s December 2, 1986, letter, plaintiff included as an enclosure copies of a petition and accompanying papers that he proposed to file in district court. In the letter plaintiff stated:

Notice is Hereby given in this letter and enclosure, that David L. Mendenhall, shall and will file said enclosure with the UNITED STATES DISTRICT COURT, unless said respondents willfully grant [the] relief ... requested____ No response within (48) Forty-Eight hours of receipt of this notice, will be construed as a response.

The proposed district court filing was entitled “PETITION FOR WRIT OF PROHIBITION IN THE PEREMPTORY.” The petition sought a one-year extension of the four Musselshell and Mox Creek contracts or, in the event that such relief was not granted, it sought both reimbursement of fees and bonds paid and, in addition, monetary losses sustained by plaintiff as a result of the September 15,1986, closing of the Austin Ridge access road. As to the alleged monetary losses, in an accompanying affidavit plaintiff explained, in effect, that he had intended to pay expenses on the four Musselshell and Mox Creek contracts with the money he would have earned by completing the Austin Ridge contracts. However, plaintiff contended, defendant’s closing of the Austin Ridge access road prevented plaintiff from earning the necessary money and thereby prevented him from completing the work on the four Musselshell and Mox Creek contracts prior to their termination. Plaintiff indicated that prior to entry into the Mus-selshell and Mox Creek contracts he was not informed that the Austin Ridge access [82] road would be closed and that when the road was closed, he already had paid for the timber that still remained on the Austin Ridge site. Plaintiff estimated that $500 in finished products and $4,000 in unfinished products remained on the site.

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Mendenhall v. United States, 36 Cont. Cas. Fed. 75,836, 20 Cl. Ct. 78, 1990 U.S. Claims LEXIS 83, 1990 WL 35022 (cc 1990).

36 Cont. Cas. Fed. 75,836 (Mendenhall v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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