Vincent Schickler, TMD U.S.A., Inc. v. United States

54 Fed. Cl. 264, 2002 U.S. Claims LEXIS 276, 2002 WL 31414682
CourtUnited States Court of Federal Claims
DecidedOctober 24, 2002
DocketNo. 02-123C
StatusPublished
Cited by15 cases

This text of 54 Fed. Cl. 264 (Vincent Schickler, TMD U.S.A., Inc. 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
Vincent Schickler, TMD U.S.A., Inc. v. United States, 54 Fed. Cl. 264, 2002 U.S. Claims LEXIS 276, 2002 WL 31414682 (uscfc 2002).

Opinion

OPINION

YOCK, Senior Judge.

This Government contract case is the latest in a series of actions brought by the plaintiff in various forums, seeking damages arising out of a 1992 breach of contract, and the alleged wrongful debarment of the plaintiff in 1994, by the General Services Administration (the “GSA”). The case is before the Court on the defendant’s Motion to Dismiss. For the reasons explained below, the defendant’s motion is granted, and the Complaint is to be dismissed.

Background

The factual background described below is based upon the Complaint and upon prior decisions of the United States Court of Appeals for the Federal Circuit (the “Federal Circuit”), the United States District Court for the Eastern District of New York (the “District Court”), and the General Services Administration Board of Contract Appeals (the “GSBCA”).

TMD U.S.A., Inc. (“TMD”), is an ocean and air freight forwarder in the business of handling and transporting ocean and air export shipments. Vincent Schickler (the “plaintiff’) is the president of TMD. In December 1991, the GSA entered into a tender agreement with TMD, pursuant to which TMD was to provide ocean freight forwarding services for a one-year period, from February 1, 1992, through January 31,1993, at a price of $19.75 per shipment.

In July 1992, the GSA’s contracting officer (the “CO”) informed the plaintiff that GSA was experiencing problems with TMD’s services and billings. TMD denied the accusations, but apparently GSA stopped requesting shipments through TMD in July 1992. In December 1992, the GSA sent a letter informing TMD that it had been placed in a 90-day nonuse status, retroactive to October 1,1992, based upon alleged ongoing problems with billings and documentation.

On January 3, 1994, TMD submitted a claim to the CO, asserting $49,999.99 in damages due to GSA’s alleged breach of the tender agreement. The CO determined that TMD was entitled to $158. TMD appealed the CO’s decision to the GSBCA on May 1, 1994. On October 31, 1996, the GSBCA issued its decision, holding that the GSA breached the tender agreement by placing TMD in nonuse status in a manner that contravened regulations; because TMD did not support its damages claim, however, the [266]*266GSBCA awarded TMD $395, calculated by multiplying 20 shipments, which TMD should have received, by the per-shipment fee of $19.75. TMD U.S.A, Inc. v. GSA, GSBCA No. 12296, 96-2 B.C.A. (CCH) ¶ 28,613, 1996 WL 640030 (1996).

While TMD pursued its claim against the GSA, the GSA concurrently initiated debarment proceedings against TMD and the plaintiff. The GSA sent a letter to TMD and to the plaintiff, dated February 16, 1994, informing them that the GSA had initiated proceedings to debar both of them from Government contracting. TMD and the plaintiff submitted responses to the notice of proposed debarment. By certified letter dated June 15,1994, the GSA notified TMD and the plaintiff that both were debarred from Government contracting, effective as of the date of the letter through February 15,1997.

On November 26, 1997, TMD and the plaintiff submitted another claim to the CO, asserting business damages of $253,515.52 due to the GSA’s allegedly wrongful debarment. The submission also included an additional Equal Access to Justice Act (“EAJA”)1 claim, seeking $18,794.28 in costs incurred in connection with the 1996 GSBCA decision. The CO denied the claim on December 10,1997.

On March 23, 1998, TMD and the plaintiff filed a complaint in the District Court, asserting three claims:

(1) a breach of contract claim stemming from GSA’s refusal to grant shipments to TMD and placing TMD on non-use status during the February 1,1992 through January 31,1993 contract period; (2) a tortious interference with contract claim based on GSA debarring the plaintiffs from government contracting, and seeking $253,515.52 in damages for lost profits; and (3) an EAJA claim, seeking damages totaling $18,794.28 for recovery of costs related to two trips to Washington, D.C., an uncollected business loan to TMD from Schickler, and office expenses.

TMD USA Inc. v. GSA No. 98 CV 1910, slip op. at 3-4 (E.D.N.Y. Mar. 23, 1999). With respect to the breach of contract claim, the District Court cited the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1994 & Supp. V 1999) (the “CDA”), in holding:

In view of the fact that the plaintiffs brought their initial appeal [of the CO’s decision] to the GSBCA, they were locked into a process that allowed further appeal only to the United States Court of Appeals [for the Federal Circuit] within 120 days. The plaintiffs failed to do so, and consequently the Court grants the GSA’s motion to dismiss the claim sounding in breach of contract for lack of subject matter jurisdiction.

Id. at 7. With respect to the tortious interference with contract claim, the District Court held that, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994), “the plaintiffs’ claim alleging tortious interference with contract must be dismissed for lack of subject matter jurisdiction, as the United States has not waived its sovereign immunity from suit relating to the cause of action.” Id. at 8. With respect to the EAJA claim, the District Court held that the plaintiff and TMD were time barred from seeking EAJA costs, because they did not submit an application for such costs to the GSBCA within 30 days after final disposition of the claim, as required by the EAJA and by the Rules of Procedure of the GSBCA. Id. at 10-11. The District Court dismissed all of the claims of TMD and the plaintiff with prejudice. Id. at 11.

On July 10, 2000, TMD filed a “Notice of Appeal and Complaint” with the GSBCA, appealing the CO’s deemed denial of TMD’s and the plaintiffs claims dated November 26, 1997. TMD again sought $253,515.52 in business damages allegedly caused by the GSA’s wrongful suspension and debarment, along with $18,794.28 in EAJA costs. It is not apparent from the filings in the instant case whether the GSBCA was aware of the District Court opinion.

On July 21, 2000, the GSBCA issued its decision. Like the District Court, the [267]*267GSBCA held that the EAJA claim is forever time barred, because an application for EAJA costs was not submitted to the GSBCA within 30 days after the GSBCA’s 1996 decision became a final disposition. TMD U.S.A., Inc. v. GSA, GSBCA No. 15363, 00-2 B.C.A. (CCH) ¶ 31,031, 2000 WL 1035389 (2000). With respect to the business damages claim, the GSBCA determined that it did not have jurisdiction over the claim at that time, because the claim submitted to the CO had not been certified.2

On July 31, 2000, TMD and the plaintiff submitted a certified claim to the CO, asserting $253,515.52 in business damages resulting from GSA’s alleged wrongful acts of suspension, nonuse, debarment and continual nonuse. The CO did not issue a written decision, so on October 4, 2000, TMD and the plaintiff filed an appeal of the CO’s deemed denial of their claim with the GSBCA.

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Cite This Page — Counsel Stack

Bluebook (online)
54 Fed. Cl. 264, 2002 U.S. Claims LEXIS 276, 2002 WL 31414682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-schickler-tmd-usa-inc-v-united-states-uscfc-2002.