Modeer v. United States

68 Fed. Cl. 131, 2005 U.S. Claims LEXIS 281, 2005 WL 2620552
CourtUnited States Court of Federal Claims
DecidedSeptember 26, 2005
DocketNo. 03-2783 C
StatusPublished
Cited by26 cases

This text of 68 Fed. Cl. 131 (Modeer 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
Modeer v. United States, 68 Fed. Cl. 131, 2005 U.S. Claims LEXIS 281, 2005 WL 2620552 (uscfc 2005).

Opinion

OPINION

BUSH, Judge.

This contract dispute is currently before the court on Plaintiffs’ Motion For Summary [134]*134Judgment, filed March 2, 2005, and Defendant’s Motion to Dismiss and Alternative Cross-Motion For Partial Summary Judgment, filed on April 4, 2005. For the reasons set forth herein, plaintiffs’ motion is granted in part and denied in part, defendant’s motion to dismiss is granted in part and denied in part, and defendant’s alternative cross-motion for partial summary judgment is granted.

BACKGROUND

The following facts are undisputed unless otherwise noted. Robert and Emily Modeer (plaintiffs or the Modeers) own property in Kansas City, Kansas, located at 25 Funston Road (the property). Beginning in 1987, the General Services Administration (GSA) leased the property from the Modeers on behalf of the United States Environmental Protection Agency (EPA) under Lease No. GS-06P-68579 (the lease).1 At least part of the property was used for the storage of hazardous materials. A provision of the lease placed responsibility upon defendant for the cleanup and removal of hazardous waste from the property:

All cleanup and removal [of hazardous waste, as required by federal and state law], for which the Government is responsible, shall be accomplished at no cost to Lessor not later than the termination date of this lease and any extensions hereof.

Compl. Ex. B. The cleanup of the property was not complete until November 4, 2003, almost four months after the July 9, 2003 termination date established by the last lease extension agreement. EPA requested that the utilities not be shut off until the cleanup had been completed.

The parties now appear to agree that a holdover tenancy was created when EPA overstayed the term of the lease in order to complete the cleanup required by the lease. See Pis.’ Reply at 4; Def.’s Mot. at 3 (referring to the period from July 10, 2003 through sometime in November 2003 as the “holdover period”). The exact beginning and end dates of the holdover tenancy are in dispute and will be discussed in detail, infra. On August 7, 2003, Mr. Modeer sent the contracting officer, Dennis Clemons, a letter claiming that “the Government is a holdover tenant with rent accruing at the pro rata rate of $793,509 per year until clean up is complete.” Compl. Ex. D. The annual rent for the property of $793,509, or $66,125.75 per month, is the rate quoted in the last extension of GS-06P-68579.

Plaintiffs filed an action in this court on December 5, 2003, asserting jurisdiction pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (2000) (CDA). In their complaint, plaintiffs request back rent for defendant’s holdover tenancy at $66,125.75 per month for five months, for a total of $330,628.75. Plaintiffs also seek $4,021.69 for utility costs for the holdover period. In addition, plaintiffs claim interest, under 41 U.S.C. § 611, from the date of the claim.2

The parties have filed dispositive cross-motions. Because defendant has moved to dismiss this action for lack of jurisdiction under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC), the court will discuss defendant’s RCFC 12(b)(1) motion first. This motion, in essence, asserts that Mr. Modeer’s August 7, 2003 letter to the contracting officer does not meet the requirements of a “claim” under 41 U.S.C. § 605. The court will then discuss the parties’ cross-motions for summary judgment under RCFC 56, concerning the rent, utilities and interest allegedly owed because of defendant’s holdover tenancy on the property.

DISCUSSION

1. Standard of Review

A. Subject Matter Jurisdiction for a CDA Claim

In rendering a decision on a motion to dismiss for lack of subject matter jurisdiction [135]*135pursuant to RCFC 12(b)(1), this court must presume all undisputed factual allegations to be true and construe all reasonable inferences in favor of plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). However, plaintiffs bear the burden .of establishing subject matter jurisdiction, see Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, see Reynolds, 846 F.2d at 748 (citations omitted). If jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).

Plaintiffs rely on the Contract Disputes Act as the jurisdictional basis for their suit. Under the CDA, a contractor may bring an appeal of a contracting officer’s decision directly to this court. See 41 U.S.C. § 609 (stating that “in lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims”). Even if a contracting officer has not yet issued a final decision on a claim, a contractor may bring a suit here after the required time has elapsed. See id. § 605(c)(5) (“Any failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this chapter.”). For this court to take jurisdiction over such a suit, however, the contractor, as a prerequisite, must have presented a written claim to the contracting officer. See id. § 605(a); England v. Swanson Group, Inc., 353 F.3d 1375, 1379 (Fed.Cir.2004) (“We have held, based on the statutory provisions [of the CDA], that the jurisdiction over an appeal of a contracting officer’s decision is lacking unless the contractor’s claim is first presented to the contracting officer and that officer renders a final decision on the claim.”) (citing James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42 (Fed.Cir.1996)).

B. Summary Judgment Regarding Rights under a Lease

The parties have filed cross-motions for summary judgment on the complaint under RCFC 56.

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Bluebook (online)
68 Fed. Cl. 131, 2005 U.S. Claims LEXIS 281, 2005 WL 2620552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/modeer-v-united-states-uscfc-2005.