OPINION AND ORDER
Before the court are plaintiffs Complaint (Compl.), Docket Number (Dkt. No.) 1, filed October 6, 2010; defendant’s Motion to Dismiss (defendant’s Motion or Def.’s Mot.), Dkt. No. 10, filed December 1, 2010; plaintiffs Response to Defendant’s Motion to Dismiss (Pl.’s Resp.), Dkt. No, 13, filed December 29, 2010; and defendant’s Reply in Support of Defendant’s Motion to Dismiss (Def.’s Reply), Dkt. No. 14, filed January 19, 2011. Plaintiffs Complaint presents two claims, referred to as the nonpayment claim and the underpayment claim. Defendant moves to dismiss plaintiffs nonpayment claim for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). Def.’s Mot. 1. Defendant also moves to dismiss both the nonpayment and underpayment claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the RCFC. Def.’s Mot. 1. For the following reasons, the court GRANTS defendant’s Motion to Dismiss.
I. Background
On October 1, 1993 plaintiff Bowers Investment Company, LLC (Bowers or plaintiff) and defendant Federal Aviation Administration (the FAA or defendant) entered into a lease (Lease) of office and warehouse space in South Fairbanks, Alaska. Compl. ¶¶ 5-6. Under the Lease, the FAA was obligated to make monthly rental payments beginning in January 1994. Compl. ¶ 8. The Lease stated that the government would pay plaintiff an “annual rent of $256,291.20 ... at the rate of $21,357.60 ... per month in arrears.” Compl. ¶ 7 (citing Ex. A,
After the Lease expired, plaintiff submitted several claims to the FAA Real Estate Contracting Officer (Contracting Officer or CO), Bowers Inv. Co. v. Dep’t of Transp., CBCA 1196,
During litigation before the CBCA, plaintiff “became aware that the first three months of the [L]ease had never been paid.” Sept. 29, 2010 Aff. of Jerry Bowers (Bowers Aff.), Dkt. No. 5, ¶ 6. In plaintiffs reply brief before the CBCA (plaintiffs Appellant Reply Brief or PL’s Appellant Reply Br.), plaintiff claimed that there was “compelling evidence that the rent for the first three months of the leasehold — January, February and March 1994 — was not paid.” Def.’s App. to Def.’s Mot. to Dismiss (Def.’s App.) A82 (PL’s Appellant Reply Br.).
On November 25, 2009 plaintiff submitted to the FAA Contracting Officer the nonpayment and underpayment claims currently before the court. Compl. ¶ 17. Plaintiffs nonpayment claim alleges that the FAA failed to pay the first three rental payments due under the Lease. See Compl. ¶ 23; see also Compl., Demand For Relief, ¶ 1 (seeking $56,640.78 plus interest for nonpayment claim). Plaintiffs underpayment claim alleges that “the FAA has underpaid its rental obligation by $664 every month from October 1,1998 to October 1, 2006.” Compl. ¶ 21; see also Compl., Demand For Relief, ¶ 1 (seeking $64,408.00 plus interest for underpayment claim). The contracting officer denied these claims on January 27, 2010. Compl. ¶ 17. Plaintiff timely appealed to the Court of Federal Claims on October 6, 2010. See Compl. ¶ 17 (received and filed on Oct. 6, 2010); Pub.L. No. 111-350, § 7104(b)(1), (3), 124 Stat. 3820 (permitting a contractor “to bring an action directly on the claim in the United States Court of Federal Claims” within twelve months of the contractor’s receipt of the contracting officer’s decision regarding the claim).
On December 1, 2010 defendant filed its Motion to Dismiss, alleging that the court lacks jurisdiction over plaintiffs nonpayment claim under Rule 12(b)(1) and that plaintiff failed to state a claim upon which relief can be granted under Rule 12(b)(6). Def.’s Mot. 1. With respect to defendant’s Rule 12(b)(1) motion, defendant argues that “Bowers made a binding election to pursue its claim for nonpayment for the first there months’ rent before the Civilian Board of Contract Appeals.” Def.’s Mot. 1. Under the CDA, a contractor may appeal a contracting officer’s final decision in one of two forums: the appropriate board of contract appeals or the Court of Federal Claims. See Pub.L. No. 111-350, § 7104(a), (b)(1), 124 Stat. 3820. Referred to as the election doctrine, a contractor is precluded from appealing its claim in both forums. Nat’l Neighbors, Inc. v. United States,
With respect to defendant’s Rule 12(b)(6) motion, defendant argues that both plaintiffs nonpayment claim and its underpayment claim are barred by claim preclusion. Def.’s Mot. 1. Under the doctrine of claim preclusion, which is an affirmative defense, “when a final judgment has been entered on the merits of a case, ‘[it] is a finality as to the claim or demand in controversy concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ ” Nevada v. United States,
II. Legal Standards
A. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
Subject matter jurisdiction is a threshold matter that a court must deter
The Tucker Act establishes and limits the jurisdiction of the United States Court of Federal Claims (Court of Federal Claims). 28 U.S.C. § 1491 (2006). The Tucker Act provides that this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act also provides the court with jurisdiction to hear claims brought under the CDA. See 28 U.S.C. § 1491(a)(2) (“The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978_”). Although the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United States for money damages, United States v. Mitchell,
The CDA is such a money-mandating statute. The CDA confers upon this court the authority to adjudicate a claim for monetary damages arising from “any express or implied contract ... made by an executive agency for [] the procurement of property, other than real property in being.” Pub.L. No. 111-350, § 7102(a)(1), 124 Stat. 3817; see Forman v. United States,
The CDA requires that “[e]ach claim by a contractor against the Federal Government relating to a contract shall be in writing.” Pub.L. No. 111-350, § 7103(a)(2), 124 Stat. 3818. Although the CDA does not define “claim,” Federal Acquisition Regulation (FAR) section 52.233-1 defines the term as “[1] a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a
B. 12(b)(6) Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) grants the court authority to dismiss plaintiffs complaint if it fails to state a claim upon which relief can be granted. See RCFC 12(b)(6). “This court will dismiss a complaint for failure to state a claim upon which relief can be granted only if it appears beyond a doubt that the plaintiff can prove no set of facts entitling him relief.” Lechliter v. United States,
A complaint can also be dismissed under Rule 12(b)(6) if it is clear from the face of the complaint that an affirmative defense exists. Larson v. United States,
In deciding whether to dismiss a complaint under Rule 12(b)(6), courts are “not limited to the four corners of the complaint.” Kawa v. United States,
III. Discussion
A. Election Doctrine
Under the election doctrine, “a contractor wishing to contest an adverse final decision by [a] contracting officer either may appeal the contracting officer’s adverse decision to the appropriate board of contract appeals or may contest the contracting officer’s decision directly to the [Court of Federal Claims].” Nat’l Neighbors, Inc. v. United States,
Although the Federal Circuit has stated that “Congress definitively rejected the idea that the CDA was abrogating the doctrine of claim preclusion and permitting the splitting of claims based on the same set of transactional facts,” Phillips/May Corp. v. United States,
Defendant contends that the election doctrine bars plaintiffs nonpayment claim because it is the same as plaintiffs September 2006 claim, the denial of which was later appealed to the CBCA. Def.’s Mot. 7-11. Plaintiff counters that its nonpayment claim is “entirely separate” from its September 2006 claim. Pl.’s Resp. 2; see also Pl.’s Resp. 3 (“The ease that is now before this [e]ourt is not the same as the one that was appealed from the contracting officer’s decision to the CBCA resulting in a decision dated August 27, 2009.”). In this case, plaintiff made two submissions for a final decision to the FAA Contracting Officer. The first was dated February 25, 2008 and listed five claims, including unpaid rent for September 2006 (September 2006 claim). Def.’s App. A1-A8 (Pl.’s Feb. 25, 2008 Letter to CO). The Contracting Officer denied most of these claims, and plaintiff appealed the denial to the CBCA. CBCA Decision *1. Plaintiffs second submission, dated November 25, 2009, was limited to the nonpayment and underpayment claims now before the court. Def.’s App. A102-105 (Pl.’s Nov. 25, 2009 Letter to CO). The Contracting Officer substantially denied these claims on January 27, 2010. Defi’s App. A107-109 (CO’s Jan. 27, 2010 Final Decision). It is the Contracting Offi
Because the court finds that the two claims are “separate and distinct,” see BRC,
Moreover, plaintiff relies on different facts to support each of its claims. Plaintiff based its September 2006 claim on the fact that the last rental payment was made on September 13, 2006, that rent was to be paid in arrears and that rent was due on the first of each
Accordingly, the contracting officer’s findings with respect to plaintiffs September 2006 claim would have little effect on the contractor officer’s findings regarding plaintiffs nonpayment claim. See BRC,
B. Claim Preclusion
Under the doctrine of res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Montana v. United States,
Unlike the election doctrine, the doctrine of res judicata “extends beyond those causes of action expressly included by the plaintiff in his claim to cover causes of action which were not but should have been raised in the prior litigation.” Brown v. United States,
For claim preclusion to apply, “the party asserting the bar must prove that (1) the parties are identical or in privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of transactional facts as the first.” Young Eng’rs, Inc. v. U.S. Int’l Trade Comm’n,
The question of whether two claims involve the same set of transactional facts is “to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.” Restatement (Second) Judgments § 24(2) (1982); see Young Eng’rs, Inc.,
Plaintiff does not and could not dispute that its September 2006 claim before the CBCA involved identical parties or that the CBCA decision was a final judgment on the merits. See Pl.’s Resp. passim; see generally CBCA Decision. Therefore, the issue before the court, for purposes of res judicata, is whether plaintiffs nonpayment and underpayment claims are “based on the same set of transactional facts” as its September 2006 claim before the CBCA. See Young Eng’rs,
As an initial matter, the court finds that claim preclusion, which is an affirmative defense, is clear from the face of plaintiffs Complaint. See Larson,
Exhibit I, referred to as the “Declaration of Amber Lawson” in plaintiffs Complaint (Lawson Declaration), Compl. ¶ 9 n. 6, appears to be a declaration that plaintiff prepared in prior litigation with the FAA before the CBCA, see Pl.’s Mot. Ex. I (Jan. 22, 2009 Deck of Amber L. Lawson); see also CBCA Decision *8 (citing “Declaration of Amber L. Lawson (Jan. 22, 2009)”). The header of the Lawson Declaration consists of the CBCA seal and the words “United States Civilian Board of Contract Appeals.” Jan. 22, 2009 Deck of Amber L. Lawson 1. The caption of the Lawson Declaration lists Bowers as the appellant and the FAA as the respondent and includes the CBCA ease number (1196). Id. Moreover, the content of the Lawson Declaration, provided by the FAA’s Lead Accounting Technician, includes references to monthly rental payments from the FAA to Bowers from April 1994 through September 2006. Id. at 1-2. Given the foregoing, the court agrees with defendant that the Complaint, considered with the exhibits referenced in the Complaint, “indicate[ ] that Bowers previously brought suit against the FAA alleging that Bowers was not paid in full under the Lease, thereby rendering claim preclusion an obvious defense to the allegations contained in the complaint.” Def.’s Mot. 11-12.
As for the substance of defendant’s claim preclusion affirmative defense, defendant argues that plaintiffs nonpayment and underpayment claims are based on the same set of transactional facts as plaintiffs September 2006 claim before the CBCA because all of plaintiffs claims stem from the Lease. Def.’s Mot. 13; see also Def.’s Mot. 14 (“All of the claims involve the issue of what was due to Bowers under the contract.”).
With respect to plaintiffs nonpayment claim, defendant argues that its September 2006 claim before the CBCA was partially based upon plaintiffs “allegation that the FAA did not make the first three monthly payments when they were due.” Def.’s Mot. 13. Defendant contends that “the CBCA necessarily evaluated all of the arguments and evidence” regarding plaintiffs nonpayment claim, and “[t]here is no indication that [plaintiff] intends to present any material evidence that was not put before the CBCA.” Def.’s Mot. 14.
Defendant premises its underpayment claim argument on the sum certain requirement under the CDA, Def.’s Mot. 14; see 48 C.F.R. § 52.233-l(e), arguing that plaintiff “was forced to identify the amount of rent that was due under the [L]ease [ ($22,-341.37) ]” in its September 2006 claim, Def.’s Mot. 13-14. Defendant contends that plaintiff, via its underpayment claim, “now seeks to assert a claim for a greater amount of rent for certain months, arguing that the amount which it previously alleged was due under the lease is less than what was truly due.” Def.’s Mot. 14 (citing Compl. ¶ 21).
Plaintiff admits that its present claims are based upon the same contract as its September 2006 claim before the CBCA, see Pl.’s Resp. 4 (stating as such with respect to its nonpayment claim) and also acknowledges that all of the claims “might have formed a convenient trial unit,” Pl.’s Resp. 6. Plaintiff further acknowledges that its September 2006 claim was “partially based upon [its] general allegation the FAA apparently had not made the first three monthly payments when they were due.” Pl.’s Resp. 5-6; see CBCA Decision *14 (“Bowers argues that since the [FAA] records do not reflect payments for the first three months of the lease, the FAA’s proof is inadequate to demonstrate that all lease payments were made.”). The CBCA even addressed plaintiffs nonpayment claim and declined to accept “a scenario under which one or more of the first three payments commencing January 1994 were not made and Bowers did not complain in writing or otherwise regarding the FAA error.” CBCA Decision *14. As for plaintiffs underpayment claim, the court agrees that “determination of what amount was due under the lease was necessary to the CBCA’s judgment.” See Def.’s Mot. 14; CBCA Decision *20 (holding, in an unrelated holdover rent claim, that plaintiff was entitled to $22,341.37 for “the monthly rate in effect at the conclusion of the lease”). Nothing before the court justifies departing from the general rule that claims arising out of the same contract are presumed to constitute the same claim under the doctrine of res judicata. Phillips/May Corp.,
Plaintiffs argues, however, that “the FAA failed to produce necessary payment records that would have allowed Bowers to bring these present claims in front of the CBCA.” Pl.’s Resp. 6 (internal quotations omitted). According to plaintiff, “until the actual pay
The court finds unavailing plaintiffs contention that the FAA’s failure “to produce necessary payment records” impeded plaintiffs ability to raise its nonpayment and underpayment claims before the CBCA See PL’s Resp. 6; see also PL’s Resp. 4 (arguing that plaintiff should not be barred from litigating the present claims before the court “since it was the FAA that failed to produce the payment records that, if disclosed sooner, would have allowed [plaintiff] to bring the [present claims] with [it’s September 2006 claim]”). Plaintiff represents an investment company that leased to the government over 13,000" square feet of space for more twelve years. Compl. ¶¶ 3, 5. Plaintiff should have kept records of rental payments made by the FAA over the entire course of the Lease. The court will not allow plaintiff to benefit from its claimed failure to do so by hearing claims that plaintiff could have and should have raised before the CBCA.
Moreover, according to the CBCA Decision, plaintiff had access to the payment records that give rise to its present underpayment claim. Plaintiffs underpayment claim alleges that defendant “underpaid its rental obligation by $664 every month from October 1, 1998 to October 1, 2006.” Compl. ¶21. Although the CBCA determined that “[n]either party maintained complete records of payments under the [L]ease,” it found that plaintiffs payment records began in 1998. CBCA Decision *6. More significantly, the CBCA found that plaintiffs bank records, which “reflect payments from June 1998 to September 2006[,] ... are consistent with the FAA’s records.” Id. at *8. In other words, the CBCA found that plaintiff had access to payment records, which were consistent with those presented by the FAA, for precisely those months at issue in plaintiffs underpayment claim. Accordingly, the court finds unpersuasive plaintiffs contention that “the facts giving rise to the present claim were not known by [plaintiff] until [it] was in the midst of an appeal of the contracting officer’s decision in front the CBCA.”
Given the foregoing, the court concludes that plaintiffs underpayment claim is barred by claim preclusion. Defendant’s Motion is GRANTED under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted.
IV. Conclusion
For the foregoing reasons, the court GRANTS defendant’s Motion to Dismiss. The Clerk is directed to dismiss plaintiffs Complaint.
IS SO ORDERED.
Notes
. Plaintiff cites to six exhibits in its Complaint (Compl.), Docket Number (Dkt. No.) 1, that it failed to attach to its Complaint. See Compl. ¶¶ 5-9, 11-16 (citing Exhibits A, B, D, E, H and I in footnotes two through fifteen). Plaintiff did attach these exhibits to its Motion for Summary Judgment (plaintiff's Motion or Pl.’s Mot.), Dkt. No. 5. Plaintiff signed both filings on September 30, 2010. Compl. 5; Pl.’s Mot. 10. Although plaintiff’s Complaint was received and filed by the Office of the Clerk of Court on October 6, 2010, plaintiff’s Motion was not filed until October 13, 2010. See Order of Oct. 13, 2010, Dkt. No. 4 (directing the Office of the Clerk of Court to file plaintiff’s Motion).
. Plaintiff cites in its Complaint to Exhibit E as Modification 8. Compl. ¶ 16 n. 13. However, Modification 8 is actually Exhibit F to plaintiff’s Motion. Pl.’s Mot. Ex. F (titled "Modification No. Eight (8)”).
. Congress has recently amended the Contract Disputes Act. See Act of Jan. 4, 2011, Pub.L. No. 111-350, 124 Stat. 3677 (the CDA amendment). The effect of the CDA amendment as it relates to this case is the relocation of the provisions of the Contracts Disputes Act from 41 U.S.C. §§ 601—613 (2006) to 41 U.S.C. §§ 7101-7109. See Pub.L. No. 111-350, §§ 7101-7109, 124 Stat. 3816-26. The citations in this Opinion and Order are to the recently-enacted public law, rather than the former United States Code sections.
"[T]he intent [of the CDA amendment] is to conform to the understood policy, intent, and purpose of Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections....” Pub.L. No. 111-350, § 2(b), 124 Stat. 3677. Consistent with its expressed intent, Congress did not change the substantive law of the Contract Disputes Act as it relates to this case.
For a simplified explanation of the effect of the amendment to the Contract Disputes Act, see Peter LeFevre, Positive law codification will modernize U.S. Code, The Hill’s Congress Blog (Sept. 28, 2010, 12:33 PM), http://thehill.com/blogs/congress-blog(judicial/121375-positive-law-codification-will-modernise-us-code; see also Vern Edwards, What is the United States Code and what is in it?, Vern Edwards’ Blog (Aug. 18, 2010, 2:00 PM), http://www.wifcon.com/discussion/index.php?autocom=blog&blogid=2&showentry=1572.
.Defendant attached an Appendix to its Motion to Dismiss (Def.’s App.), which included plaintiff’s submission of its September 2006 claim to the FAA Contracting Officer, Def.’s App. A1-A8; plaintiff's appellant brief appealing to the CBCA the Contracting Officer’s denial of plaintiff’s September 2006 claim, Def.’s App. A37-A79; plaintiff’s Appellant Reply Brief before the CBCA, A80-A100; plaintiff’s submission of its nonpayment and underpayment claims to the FAA Contracting Officer, A102-A105; and the Contracting Officer’s denial of plaintiff’s nonpayment and underpayment claims, A107-A112. Plaintiff has not objected to the validity of these documents, and the court finds it reasonable to rely upon them as accurate. See Jo-Mar Corp. v. United States (Jo-Mar),
. The Rules of the United States Court of Federal Claims (RCFC) generally mirror the Federal Rules of Civil Procedure (FRCP). See C. Sanchez & Son, Inc. v. United States,
. The Federal Circuit has held that the FAR "sets forth the only three requirements of a non-routine ‘claim’ for money: that it be (1) a written demand, (2) seeking, as a matter of right, (3) the payment of money in a sum certain.” Reflectone, Inc. v. Dalton,
. In its Motion, defendant cites Spodek v. United States,
The plaintiff in Jo-Mar failed to follow the procedural rules that govern the filing of an appeal of a Contracting Officer’s decision with the contract board of appeals, resulting in the board’s removal of plaintiff’s complaint from the docket. Jo-Mar,
The facts in this case do not warrant the strict application of the Jo-Mar test that defendant champions. See Def.’s Mot. 5 ("[T]he [Jo-Mar] test does not include analysis of whether the board actually or directly addressed the merits of the claim at issue.”); Def.’s Mot. 6 ("Here, the only two factors for the [cjourt’s analysis are: (1) whether Bowers sought to avail itself of the CBCA; and (2) whether the CBCA had the ability to exercise jurisdiction.”). The distinct jurisdictional issues raised in Jo-Mar and in the few cases that employ its test, are not currently before the court. Here, the issue is whether plaintiff’s second submission to the contracting officer (the denial of which plaintiff appealed to the court) was separate and distinct from plaintiff's earlier submission (the denial of which plaintiff appealed to the CBCA).
Defendant’s reliance on Kunz Constr. Co. v. United States (Kunz),
. It is with respect to defendant's claim preclusion argument that Kunz and its progeny more aptly applies. See Kunz,
. Defendant finds support for its argument that claim preclusion bars plaintiff’s nonpayment and underpayment claims in plaintiff’s Complaint and the CBCA Decision. See Def.’s Mot. 13-14. As discussed above, supra Part II.C, the court may consider materials outside the pleadings— for example, matters of public record of which the court can take judicial notice' — under a Rule 12(b)(6) motion to dismiss, Kawa,
. Defendant contends that the disputed FAA payment records were actually faxed to plaintiff in 1996, prior to plaintiff’s submission of its September 2006 claim to the contracting officer and subsequent appeal to the CBCA. Def.’s Reply 4. These FAA payment records are attached to plaintiff's Motion as Exhibit H. See Pl.’s Mot. Ex. H (FAA accounting records listing rental payments from May 2, 1994 to March 26, 1996); Compl. ¶ 9 n. 6 (citing to "Exhibit H-FAA Document from Accounting Department”). According to defendant, Exhibit H of plaintiff’s Motion is incomplete, as it "does not include the facsimi-Ie transmission confirmation page or cover sheet that was part of the original exhibit [before the CBCA].” Def.’s Reply 4. Defendant attached the entire exhibit to its Reply, which indicates that plaintiff received these records on May 2, 1996. Def.’s Reply 4; see Def.’s Reply Ex. A. The court recognizes that plaintiff has not had an opportunity to respond to this evidence, but the court does not rely on Exhibit A of defendant's Reply in reaching its conclusion that plaintiff should have known of the facts giving rise to its nonpayment claim prior to its appeal of the September 2006 claim before the CBCA.