OPINION AND ORDER
Before the court are plaintiffs’ Complaint (Complaint or Compl.), Docket Number (Dkt. No.) 1, filed March 30, 2010; Defendant’s Motion to Dismiss (defendant’s Motion or Def.’s Mot.) and Defendant’s Appendix (Def.’s App.), Dkt. No. 6, filed June 1, 2010; Plaintiffs’ Brief in Opposition to Defendant’s Motion to Dismiss (plaintiffs’ Response or Pis.’ Resp.), Dkt. No. 7, and Plaintiffs’ Appendix (Pis.’ App.), Dkt. No. 8, filed July 2, 2010; and Defendant’s Reply in Support of Motion to Dismiss (defendant’s Reply or Def.’s Reply), Dkt. No. 9, filed July 16, 2010. Defendant moves to dismiss plaintiffs’ contract claims 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 plaintiffs’ Fifth Amendment takings claim and plaintiffs’ allegation of a violation of the Prompt Payment Act for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the RCFC. Id. For the following reasons, the court GRANTS IN PART and DENIES IN PART defendant’s Motion to Dismiss.
I. Background
Plaintiffs are Environmental Safety Consultants, Inc. (ESCI) and Peter C. Nwogu (Nwogu), who is the founder, owner, President and Project Manager of ESCI. Compl. ¶ 6. Plaintiffs’ claims relate to contracts ESCI entered into with the United States Department of the Navy, the United States Army Corps of Engineers and the National Parks Service.
A. ESCI’s Contract with the United
On November 13, 1995 ESCI entered into Contract No. N62470-95-C-2399 FY 95 with the United States Department of the Navy (Navy) to remove storage tanks and contaminated materials from the Naval Weapons Station in Yorktown, Virginia.
ESCI filed a notice of appeal, docketed as ASBCA No. 51722, with the Armed Services Board of Contract Appeals (ASBCA) on August 26,1998,
ESCI filed a motion for reconsideration of the ASBCA’s dismissal of the monetary claim, which the ASBCA denied on October 18, 2002. Envtl. Safety Consultants, Inc., ASBCA No. 51722,
ESCI then filed an appeal with the Federal Circuit, which was dismissed on August 20, 2003 because ESCI failed to pay the docketing fee. Envtl. Safety Consultants, Inc. v. Johnson,
Additionally, on December 3, 2001 the Contracting Officer issued a final decision which assessed $167,691.75 in liquidated damages against ESCI and notified ESCI of its rights of appeal. PX 12 (Envtl. Safety Consultants, Inc., ASBCA No. 54615,
In this case, plaintiffs contend that defendant breached its contract with ESCI by failing to pay ESCI for completed work and by forcing ESCI to transfer its contract to a local contractor. Compl. ¶¶ 60, 61. Plaintiffs also contend that the Navy waived its right to liquidated damages because it acted unreasonably and in bad faith in causing extensive delays in the completion of the contract. Compl. ¶ 64. Finally, plaintiffs contend that defendant violated the Prompt Payment Act. Compl. ¶ 60. Plaintiffs seek judgment in
B. ESCI’s Contract with the United States Army Corps of Engineers
On September 29, 1995 ESCI entered into Contract No. DACW S8-95-C-0102 with the United States Army Corps of Engineers (USACE) to construct “four Reverie Aquatic Habitat Units and Riprap protection for two bridges” in Mississippi. Compl. ¶ 38. On August 22, 1996 a USACE Contracting Officer terminated ESCI’s contract for default. Compl. ¶44. On October 10, 1996 the Contracting Officer issued the final decision terminating ESCI’s contract for default and notified ESCI of its appeal rights. PX 14 {Envtl. Safety Consultants, Inc., ASBCA No. 54995,
In a letter dated September 23, 2002, ESCI submitted a request for equitable adjustment to the Contracting Officer, seeking $98,639.18 for work completed on the contract. Id. ESCI resubmitted this request on March 16, 2003. Id. In an April 23, 2003 letter, the Contracting Officer issued a final decision that denied ESCI’s request for equitable adjustment and informed ESCI of its right to appeal.
Two years later, in a letter dated January 10, 2005, ESCI requested that the Contracting Officer reconsider its request for equitable adjustment, again seeking $98,639.18. Id. ESCI did not allege any new facts in this letter. Id. The Contracting Officer’s January 14, 2005 letter denied ESCI’s request, refused to reconsider the April 23, 2003 final decision, and informed ESCI that the time for appeal had expired. Id. In a second letter dated January 24, 2005, ESCI submitted another request for reconsideration to the Contracting Officer, seeking $78,889.13. Id. at 3-4; Compl. ¶ 47. The Contracting Officer’s January 27, 2005 letter denied ESCI’s request, refused to reconsider and reiterated that the time for appeal had expired.
On April 29, 2005 ESCI filed an appeal with the ASBCA, docketed as ASBCA No. 54995, based on the denial of its January 24, 2005 request for reconsideration. Id.; Compl. ¶ 49. On March 7, 2006 the ASBCA dismissed the appeal, holding that because ESCI failed to appeal the Contracting Officer’s April 23, 2003 final decision within the statutory 90-day appeal period, the ASBCA lacked jurisdiction to entertain the appeal. Compl. ¶ 50; PX 14 {Envtl. Safety Consultants, Inc., ASBCA No. 54995,
On September 15, 2006 ESCI filed a notice of appeal with the Federal Circuit. See Envtl. Safety Consultants, Inc. v. Harvey,
In this case, plaintiffs contend that defendant breached its contract with plaintiffs and wrongfully withheld contract funds before defendant terminated the contract for default. Compl. ¶¶ 51, 67. Plaintiffs seek judgment in their favor in the amount of $78,880.15, plus interest and fees. Compl. ¶¶ 68, 69.
C. ESCI’s Contract with the National Parks Service
On September 25, 1995 ESCI entered into Contract No. 1443CX30009509S with the National Parks Service (the NPS), a division of the United States Department of the Interi- or, to replace underground storage tanks at multiple sites in the District of Columbia and Maryland. Compl. ¶ 52. On August 2, 1996 the Contracting Officer for the NPS terminated ESCI’s contract for default. Compl. ¶ 56. On September 12,1996 ESCI appealed the termination for default to the Interior Board of Contract Appeals (IBCA), docketed as IBCA No. 3626-96. Compl. ¶ 57. ESCI and the NPS reached a joint settlement agreement whereby defendant agreed to convert the termination for default into a termination for convenience and to pay plaintiff $31,216.90, which was the “full and final payment on this contract.” PX 16 (Modification of Contract) block 8. The joint settlement agreement was the “complete and final settlement of IBCA Case No. 3626-96” and “constitute[d] a negotiated settlement of all claims under and relating to this contract.” Id. Pursuant to the parties’ joint settlement agreement, on November 13, 1998 the IBCA dismissed ESCI’s appeal with prejudice. PX 16 {Envtl. Safety Consultants Inc., IBCA No. 3626-96, Order Dismissing Appeal).
On November 3, 2001, three years after the IBCA dismissed ESCI’s appeal with prejudice, ESCI resubmitted its appeal to the IBCA, alleging that the NPS wrongfully modified the contract and illegally paid its funds to ESCI’s attorney, who had signed the agreement on ESCI’s behalf. Def.’s App. 1 {Envtl. Safety Consultants Inc., IBCA No. 3626-96, Order Docketing and Dismissing Duplicative and Tardy Appeal). The IBCA treated ESCI’s submission as a motion for reconsideration, which it denied as untimely on November 6, 2001. Id.
Plaintiffs allege that in June 2003 ESCI submitted a claim to a Contracting Officer seeking an equitable adjustment to Contract No. 1443CX300095093 in the amount of $206,334.38.
On November 10, 2003 ESCI filed a notice of appeal with the Federal Circuit, in which ESCI “appeal[ed] each and every aspect of the decision of 08 August 2003.” Pis.’ App. (Notice of Appeal) 2. The court dismissed ESCI’s appeal because ESCI was not represented by counsel and because ESCI failed to pay the filing fee. Compl. ¶ 59; Envtl. Safety Consultants, Inc. v. NoHon,
II. Legal Standards
A. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
Subject matter jurisdiction is a threshold matter which a court must determine at the outset of a case. Steel Co. v. Citizens for a Better Env’t,
B. Transfer for Lack of Subject Matter Jurisdiction
Under 28 U.S.C. § 1631 (2006), a federal court may transfer a case to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the ease could have been brought in the transferee court at the time it was filed; and (3) such a transfer is in the interest of justice. See Rodriguez v. United States,
C.12(b)(6) Motion to Dismiss for Failure to State a Claim
If a plaintiffs complaint fails to state to state a claim upon which relief can be granted, the court must dismiss that claim. See RCFC 12(b)(6). In determining whether it should grant the 12(b)(6) motion, the court “must accept as true all the factual allegations in the complaint” and make “all reasonable inferences in favor of the nonmov-ant.” Sommers Oil Co. v. United States,
III. Discussion
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 úpon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act provides the waiver of sovereign immunity necessary for a plaintiff to sue the United States for money damages. United States v. Mitchell,
A. Breach of Contract Claims
The Tucker Act sets out this court’s jurisdiction over disputes arising under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-13 (2006):
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 [CDA], including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other non-monetary disputes on which a decision of the contracting officer has been issued under [section 605 of the CDA].
28 U.S.C. § 1491(a)(2); Alliant Techsystems, Inc. v. United States,
1. Navy Contract
In Count One (a)
In their Response, plaintiffs allege facts concerning an October 2003 “written claim [plaintiffs submitted] to the contracting officer for a decision of payments of overdue invoices and wrongful [sic] withheld earned contract funds in the amount of approximately $457,762.37.” Pis.’ Resp. 12. Plaintiffs further assert that the Contracting Officer did not make a decision on their claim within sixty days, so that under the CDA, their claim was “deemed denied.” Id.; see 41 U.S.C. § 605(c)(5). In their Complaint, plaintiffs do not refer to their October 2003 claim submission to the Contracting Officer or the failure of the Contracting Officer to issue a decision, but they do make a passing reference to the ASBCA’s actions concerning the deemed denial. See Compl. ¶ ¶ 36, 37. Plaintiffs also reference Exhibit 12 of their Complaint, which, among other documents, contains a January 31, 2007 opinion by the ASBCA that discusses the October 2003 claim and its deemed denial. PX 12 (Envtl. Safety Consultants, Inc., ASBCA No. 54615,
Plaintiffs’ claim relating to their October 2003 submission to the Contracting Officer is the only claim from Count One that is not dismissed.
Under the CDA, upon receipt of a written claim from a contractor, a Contracting Officer must issue a final decision within sixty days. 41 U.S.C. § 605(c)(1), (2). If the Contracting Officer fails to issue a decision within the requisite time period, the claim is deemed denied. 41 U.S.C. § 605(c)(5). After a contractor receives the Contracting Officer’s final decision (final CO decision) or the sixty days have passed since the Contracting Officer received the claim (when the claim is “deemed denied”), the contractor may appeal either to an agency board of contract appeals within ninety days or to the Court of Federal Claims within twelve months. 41 U.S.C. §§ 606, 609(a). If the claim is deemed denied, the contractor is authorized to file suit under 41 U.S.C. § 605(c)(5), but the contractor is not required to do so. Pathman Constr. Co. v. United States (Pathman),
Under the election doctrine applicable to CDA claims, once a contractor chooses the forum in which to appeal, the contractor’s choice is binding and the contractor is no longer able to pursue its appeal in the alternate forum. Nat’l Neighbors, Inc. v. United States,
However, three additional claims contained in Count One of plaintiffs’ Complaint must be dismissed. In Count One (a) of their Complaint, plaintiffs allege that defendant breached its contract with plaintiffs by “forc[ing] Plaintiffs to relinquish and transfer their contractual rights to a local contractor.” Compl. ¶ 61. In Count One (b) of their Complaint, plaintiffs claim that defendant waived its right to liquidated damages. Compl. ¶ 64. Finally, in their Response, plaintiffs state that their “claim is the failure of the ASBCA to act as it should and the failure to act was the ultimate breach requiring Plaintiffs to file suit in the Court of Federal Claims.... ” Pis.’ Resp. 12. Because this court does not have jurisdiction over plaintiffs’ claims relating to the “relinquish[ment] and transfer” of the contract, defendant’s alleged waiver of liquidated damages, or the ASBCA’s actions, each is dismissed pursuant to RCFC 12(b)(1).
Plaintiffs’ allegation in Count One (a) of the Complaint that defendant breached its contract with plaintiffs by terminating the contract and transferring plaintiffs’ contractual rights to a local contractor is dismissed for lack of jurisdiction because the claim was filed in this court beyond the applicable statute of limitations. Here, while plaintiffs fail to allege that they received a final CO decision regarding the termination of the contract, they do assert that “[o]n June 12, 1998, the Defendant wrongfully terminated the aforesaid Contract_” Compl. ¶ 32. Plaintiffs’ Exhibit 11 shows that plaintiffs did receive a final CO decision regarding the termination for default in June 1998. See PX 11 (Notice of Appeal to the ASBCA) (stating that plaintiffs appeal “each and every aspect of the decision of June 6, 1998 of the Contracting Officer to Terminate the ... Contract for Default.”) 1. Plaintiffs’ appeal of the final CO decision was not timely filed in this court. Under the CDA, a contractor must file its complaint in the Court of Federal Claims within twelve months of receipt of a final CO decision; otherwise, the complaint is outside the statute of limitations and must be dismissed.
Plaintiffs’ allegation that the Navy waived its rights to liquidated damages by delaying plaintiffs’ completion of the contract is also dismissed because the claim was filed in this court beyond the applicable statute of limitations. Here, plaintiffs fail to allege that they received a final CO decision regarding liquidated damages. See Compl. passim; see also Pis.’ Resp. passim. However, Plaintiffs’ Exhibit 12 shows that a Contracting Officer issued a final decision assessing liquidated damages against ESCI on December 3, 2001. PX 12 (Envtl. Safety Consultants, Inc., ASBCA No. 54615,
In their Response to defendant’s Motion to Dismiss, plaintiffs allege for the first time that their “claim is the failure of ASBCA to act as it should and the failure to act was the ultimate breach_” Pis.’ Resp. 12. To the extent that plaintiffs ask this court to review the actions of the ASBCA, this claim is dismissed. The Court of Federal Claims has no jurisdiction to review the actions of the ASBCA. See 41 U.S.C. § 607(g)(1). If a contractor elects to file its appeal of a final CO decision with an agency board of contract appeals rather than with the Court of Federal Claims, the board’s actions are subject to review only by the Federal Circuit. 41 U.S.C. § 607(g)(1)(A).
The dismissed claims will not be transferred to another court under 28 U.S.C. § 1631 because they could not be brought in another court. Under the CDA, a contractor may appeal a Contracting Officer’s final decision only to an agency board of contract appeals or the Court of Federal Claims. 41 U.S.C. §§ 606, 609(a). Plaintiffs’ claims cannot be transferred to an agency board of contract appeals because it is not a “court” within the meaning of 28 U.S.C. § 1631 (2006), the statute authorizing transfers.
2. USACE Contract
In Count II of their Complaint, plaintiffs allege that defendant “wrongfully withheld progress payments under the pretext that the government anticipated termination of contract for default,” and plaintiffs seek $78,880.15 for work completed on the contract. Compl. ¶ 67, 68. Because this court does not have jurisdiction over this claim, it is dismissed pursuant to RCFC 12(b)(1).
It is unclear which final CO decision, if any, that plaintiffs appeal in Count II. To the extent that plaintiffs’ claim is unrelated to a final CO decision, the claim is dismissed for lack of jurisdiction. Under the CDA, there are two prerequisites to filing an appeal with an agency board of contract appeals or with the Court of Federal Claims: first, “the contractor must have submitted a proper CDA claim to the contracting officer requesting a decision, [41 U.S.C.] § 605(a),” and second, “the contracting officer must either have issued a decision on the claim [41 U.S.C.] § 609(a) or have failed to issue a final decision within the required time period, [41 U.S.C.] § 605(c)(5).” England v. Sherman R. Smoot Corp.,
Plaintiffs allege that they received two final CO decisions related to the USACE contract. The first final CO decision, received by plaintiffs no later than October 22, 1996, terminated the USACE contract for default. See Compl. ¶ 44; PX 14 (Envtl. Safety Consultants, Inc., ASBCA No. 54995,
To the extent that plaintiffs appeal their requests for reconsideration that were denied by the Contracting Officer, those claims are also dismissed. On three separate occasions plaintiffs submitted what plaintiffs may construe as requests for reconsideration to the Contracting Officer.
If a contractor timely submits a request for reconsideration of a final CO decision to the Contracting Officer, the time the Contracting Officer spends reviewing the request suspends both the finality of the CO decision and the time for appeal under the CDA. Arono,
Here, the Contracting Officer did not recognize or review the two requests for reconsideration plaintiffs submitted in January 2005. Within four days of his receipt of each claim, the Contracting Officer responded to plaintiffs with his refusal to reconsider the denial of ESCI’s request for equitable adjustment. See PX 14 (Envtl. Safety Consultants, Inc., ASBCA No. 54995,
Regarding ESCI’s 1996 request, given the six-week span between ESCI’s re
In their Response, plaintiffs for the first time allege that “Plaintiffs’ claim is the failure of ASBCA to act as it should and the failure to act was the ultimate breach requiring Plaintiffs to file suit in the Court of Federal Claims_” Pis.’ Resp. 14. Because the ASBCA’s actions are subject to review exclusively by the Federal Circuit, 41 U.S.C. § 607(g)(1)(A), this claim is dismissed for lack of jurisdiction.
The dismissed claims will not be transferred to another court under 28 U.S.C. § 1631 because they could not be brought in another court. Under the CDA, a contractor may appeal a final decision only to an agency board of contract appeals or the Court of Federal Claims. 41 U.S.C. §§ 606, 609(a).
3. NPS Contract
In Count III of their Complaint, plaintiffs allege that the government owes them $144,527.47 for work plaintiffs completed on Contract No. 144CX300095093. Compl. ¶¶ 70, 71. In their Response, plaintiffs for the first time allege that their “complaint is the propriety of [the] contracting officer’s wrongful termination of Plaintiffs’ contract that triggered other government agencies to withhold Plaintiffs’ earned contract funds in the two contracts Plaintiffs had with other government agencies.” Pis.’ Resp. 14. Also for the first time, plaintiffs allege that their “complaint is the validity of the contracting officer’s termination of Plaintiffs’ contract for the government’s convenience.” Id. Because the court lacks jurisdiction over these claims, they are dismissed pursuant to RCFC 12(b)(1).
To the extent that plaintiffs’ claim relates to the validity of the settlement agreement, that claim is dismissed. Plaintiffs’ Exhibit 16 shows that ESCI and the NPS entered into a “mutually agreed upon ... full and final settlement” agreement concerning Contract No. 144CX300095093 on November 12, 1998. PX 16 (Modification of Contract) block 8. Under the settlement agreement, the government agreed to convert the termination for default into a termination for convenience and to pay ESCI $31,216.90, which was the “full and final payment of this contract.” Id. The agreement was a “negotiated settlement of all claims under and relating to [the] contract, and [was a] full and final settlement thereof.” Id. ESCI acknowledged that it had “no unsatisfied claim against the Government ... [and] release[d] and discharge^] the Government from any and all claims or demands” related to the settlement agreement. Id. The agreement was signed by an agent and attorney for ESCI. Id. Under the CDA, a settlement agreement between the parties is a final resolution of the plaintiffs claim. Sarang Corp. v. United States,
Although plaintiffs characterize their claims relating to the NPS contract as contract claims, it is the court’s view that plaintiffs’ assertions relating to Contract No. 144CX300095093 are essentially a fraud claim concerning the validity of the settlement agreement. Plaintiffs’ Appendix includes ESCI’s Notice of Appeal to the Federal Circuit, which was submitted and signed by Peter Nwogu, the President and CEO of ESCI and a plaintiff in this case. Pis.’ App. (Notice of Appeal) 1-2. The court has examined ESCI’s grounds for appeal to the Federal Circuit, which provide insight into the circumstances that caused plaintiffs to file their 2001 and 2003 appeals with the IBCA, their 2003 appeal with the Federal Circuit, and their present appeal with this court. ESCI asserted that because Nwogu himself did not sign the settlement agreement, the agreement was invalid. Id. Specifically, ESCI alleged the following:
The wrongful dismissal of appellant’s original appeal without proper documentation was fraudulent dismissal and the Contracting Officer knew that the only person who can sign for the company as documented in the Contract was Mr. Peter Nwogu, Officer of the Corporation. The IOHA [Interi- or Office of Hearings and Appeals] also knew that appellant did not sign any documentation approving or agreed to the Board’s dismissal of appellant’s original appeal. The Contracting Officer and the IOHA knew or should have known that appellant did not agree to the settlement and that there was no documentation evidencing that Appellant and the corporate officer agreed or represented to the IOHA and the Contracting Officer that the appeal should be dismissed. The Contracting Officer and the IOHA were wrong when they knew that the so called settlement agreement was not signed by Corporate Officer evidencing fraud and should have required Appellant to sign the settlement documentations in the Capacity of the Acknowl-edgement of the Settlement Agreement.
Id. at 1. Furthermore, plaintiffs nowhere allege, and none of the exhibits provided to the court shows that plaintiffs seek payment for work completed after the execution of the 1998 settlement agreement. See Compl. passim; see also Pis.’ Resp. passim; PX 15; PX 16; Pis.’ App. It appears to the court that plaintiffs seek to have the settlement agreement, which terminated the parties’ rights under the contract declared fraudulent and invalid, and seek to be compensated in the amount of $144,527.47 for work completed prior to the settlement agreement.
The Court of Federal Claims does not have jurisdiction over tort claims against the United States. 28 U.S.C. § 1491(a); Brown v. United States,
To the extent that plaintiffs appeal the June 2003 “deemed denied” claim on Contract No. 144CX300095093, that claim is dismissed for lack of jurisdiction. To proceed under the CDA, an individual must be a “contractor” with the United States within the meaning of the Act at the time the claim arises. United Pac. Ins. Co. v. Roche,
To the extent that plaintiffs appeal the August 2, 1996 final CO decision that terminated the contract for default, that claim is dismissed because the claim is time-barred. A contractor has twelve months from his receipt of the final CO decision to file a claim in this court. 41 U.S.C. § 609(a)(3). Here, the Contracting Officer issued the final decision on August 2, 1996. Compl. ¶ 56. Because they appealed the final CO decision to the IBCA on September
B. Punitive Damages Claim
Plaintiffs request that this court “award plaintiffs punitive damages against the Defendant for breach of contract in bad-faith.” Compl. Prayer for Relief ¶4. The Court of Federal Claims has no jurisdiction to grant punitive damages. See 28 U.S.C. § 1491(a); Mastrolia v. United States,
C. Prompt Payment Act Claim
In Count IV of their Complaint, plaintiffs allege that defendant violated the Prompt Payment Act (PPA) by “failing to promptly pay Plaintiffs for completed contract [work].” Compl. ¶¶ 74, 75. Plaintiffs identify the PPA by name in Count IV of the Complaint, but they do not cite to the PPA’s U.S.Code sections, 31 U.S.C. §§ 3901-3905 (2006), which provide for pre-dispute interest. See Compl. ¶¶ 74, 75. Instead, plaintiffs cite to 41 U.S.C. § 611, which is the CDA interest statute, and 41 U.S.C. § 612, which provides for prompt payment of judgments and monetary awards under the CDA. Compl. ¶ 74. However, earlier in their Complaint, plaintiffs assert that this court has jurisdiction over Count IV under the Prompt Payment Act, 31 U.S.C. §§ 3901-3905. Compl. ¶ 2. Furthermore, in Count One of their Complaint, which contains assertions related to the Navy contract, plaintiffs simply state that “[t]he Defendant violated the Prompt Payment Act of the United States.” Compl. ¶ 60. Because plaintiffs are unclear’ as to which statute defendant allegedly violated, the court addresses their claims under both the CDA and the PPA.
To the extent that plaintiffs assert a claim under the CDA, 41 U.S.C. § 611, the court denies defendant’s motion to dismiss. Section 611 provides in relevant part that “[i]nterest on amounts found due contractors on claims shall be paid to the contractor from the date the contracting officer receives the claim pursuant to section 605(a) of this title from the contractor until payment thereof.” 41 U.S.C. § 611. If this court finds that plaintiffs are due money damages for expenses they incurred under the Navy contract before the contract was terminated, then plaintiffs may be entitled to interest under 41 U.S.C. § 611. See ATK Thiokol, Inc. v. United States,
To the extent that plaintiffs assert a claim under the CDA, 41 U.S.C. § 612, that claim is dismissed pursuant to RCFC 12(b)(6). The CDA requires that judgments against the United States and monetary awards to a contractor by an agency board of contract appeals “be paid promptly.” 41 U.S.C. § 612(a), (b). Plaintiffs merely allege that the government failed to pay plaintiffs promptly for completed contract work. Compl. ¶ 75; Pis.’ Resp. 17-18. Because plaintiffs do not allege — and there is nothing in the procedural history to suggest — that plaintiffs have an unpaid judgment or award owed by the United States, plaintiffs’ claims
To the extent that plaintiffs assert a violation of the PPA, 31 U.S.C. §§ 3901-3905, that claim is dismissed pursuant to RCFC 12(b)(6). The PPA authorizes the payment of interest to contractors when the government is late in making payment for goods or services under a written contract. See 31 U.S.C. §§ 3901-3905;
D. Fifth Amendment Takings Claim
In Count V of their Complaint, plaintiffs claim that defendant “has taken Mr. Nwogu’s property rights in ESCI in violation of the Fifth Amendment ... [by] den[ying] Mr. Nwogu access to earned funds in ESCI.” Compl. ¶ 77. Plaintiffs allege that Nwogu has a property interest in ESCI because he is the owner, only shareholder, president and project manager of ESCI. Compl. ¶ 76. Because plaintiffs have not identified a cognizable property interest for the purposes of the Fifth Amendment, this claim is dismissed.
The Court of Federal Claims has jurisdiction over takings claims under the Tucker Act. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin.,
When the government contracts, the government acts in its proprietary or commercial capacity, rather than in its sovereign capacity. Hughes Commc’ns Galaxy, Inc. v. United States (Hughes),
Here, plaintiffs essentially allege that their property interest is unpaid funds that the government owes plaintiffs under the Navy, USACE and NPS contracts.
IV. Conclusion
For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART defendant’s Motion to Dismiss.
The court DENIES defendant’s motion to dismiss Count One (a) as it relates to the claim that plaintiffs submitted to the Contracting Officer in October 2003.
The court DENIES defendant’s motion to dismiss Count IV as it relates to interest due to plaintiffs under 41 U.S.C. § 611.
The court GRANTS defendant’s motion to dismiss Counts One (b), II, III, IV, except as it relates to interest due to plaintiffs under 41 U.S.C. § 611, and V.
The Clerk is directed to dismiss Counts One (b), II, III and V of plaintiffs’ Complaint.
Plaintiffs shall file a memorandum of points and authorities (plaintiffs’ Memorandum) which shall SHOW CAUSE why plaintiffs’ Count One (a) should not be dismissed. Plaintiffs’ Memorandum shall address the CDA six-year statute of limitations issue as described in footnote 16 of this Opinion and Order. Plaintiffs’ Memorandum shall not include arguments related to claims that the court has dismissed in this Opinion and Order. Plaintiffs’ Memorandum shall be filed on or before Thursday, November 4, 2010. Defendant shall file its response to plaintiffs’ Memorandum on or before Thursday, November 18, 2010, and plaintiff shall file its reply on or before Monday, November 29, 2010.
IT IS SO ORDERED.
Notes
. The factual background of the Navy contract is discussed thoroughly in Envtl. Safety Consultants, Inc., ASBCA No. 54615,
. Plaintiffs also refer to the contract as Navy Contract No. N62470-95-C-2394. See Compl. V 59.
. Plaintiffs attached sixteen exhibits to their Complaint. Plaintiffs did not provide an index or descriptions of their exhibits. Plaintiffs included multiple documents in each exhibit and did not provide a clear or consistent pagination system. This court has attempted to provide a sufficient description of the referenced documents. Unless otherwise indicated, any page numbers the court cites are found at the bottom of the referenced document.
. The final decision was issued as Modification P00007 to the contract. See Plaintiffs’ Exhibit (PX) 12 (Envtl. Safety Consultants, Inc., ASBCA No. 51722,
. In their Complaint, plaintiffs allege that Environmental Safety Consultants, Inc. (ESCI) appealed the termination for default on August 18, 1998. Compl. ¶ 34. However, plaintiffs’ exhibits show that ESCI filed its appeal on August 26, 1998. PX 11 (Notice of Appeal) 1; PX 12 (Envtl. Safety Consultants, Inc., ASBCA No. 51722,
. In its appeal to the Armed Services Board of Contract Appeals (ASBCA), ESCI asserted seven grounds for recovery, which this court will describe briefly: (I) the contract was materially different from what ESCI had originally anticipated; (2) the Navy unreasonably delayed ESCI’s performance; (3) the Navy constructively changed the contract; (4) the Navy unreasonably suspended work; (5) the Navy threatened and exhibited personal animosity to ESCI; (6) the Navy abused its discretion; and (7) the Navy changed material contract terms. See PX 12 (Envtl. Safety Consultants, Inc., ASBCA No. 54615,
. The court notes that plaintiffs filed another case in this court, assigned to a different judge (Case No. 09-268C). That case addressed claims relating to two contracts with the Navy, including Contract No. N62470-95-C-2399, the Navy contract at issue in this case. A question on the intake "Cover Sheet” filled out by plaintiff's attorney and filed with plaintiff’s Complaint, asks, "Is this case directly related to any proceeding or previous case?” Plaintiffs’ attorney marked the "No” box with an "x,” despite the fact that Case No. 09-268C was then pending.
. Plaintiffs allege that the Contracting Officer denied ESCI’s request on March 23, 2003. Compl. 11 46; Pis.’ Resp. 13. However, plaintiffs’ Exhibit 14 shows that the actual date was April 23, 2003. See PX 14 {Envtl. Safety Consultants, Inc., ASBCA No. 54995,
. Plaintiffs allege that the Contracting Officer denied ESCI's January 24, 2005 request on June 4, 2003. Compl. ¶ 47. However, plaintiffs’ Exhibit 14 shows that the actual date was January 27, 2005. See PX 14 {Envtl. Safety Consultants, Inc., ASBCA No. 54995,
. Plaintiffs' Appendix includes an undated request for equitable adjustment seeking $206,334.67 related to the IMPS contract. Pis.’ App. 1-12. Plaintiffs do not explain the discrepancy between the amount alleged in their Response ($206,334.38), Pis.' Resp. 14-15, and the amount listed in their request for equitable adjustment ($206,334.67), Pis.’ App. 12.
. Plaintiffs’ Appendix contains multiple documents. Plaintiffs did not provide an index or description of these documents, nor did they provide a clear or consistent pagination system. This court has attempted to provide a sufficient description of the referenced documents. Unless otherwise indicated, any page numbers the court cites are found at the bottom of the referenced document.
.In their Complaint, plaintiffs appear to allege that in August 2003 plaintiffs were appealing the Interior Board of Contract Appeals’ (IBCA) dismissal of an earlier appeal. See Compl. ¶¶ 57-58.
. Section 601 (6)(B) of the CDA currently states that an "agency board of contract appeals” includes the Civilian Board of Contract Appeals. Effective January 6, 2007 with an amendment to the CDA, the IBCA, along with various other agency boards of contract appeals, was terminated, and its cases were transferred to the new Civilian Board of Contract Appeals. National Defense Authorization Act for Fiscal Year 2006, Pub.L. No. 109-163, 119 Stat. 3392-93.
. Plaintiffs label their counts as follows: Count One (a), Count One (b), Count II, Count III, Count IV and Count V. The court follows plaintiffs' numbering system.
. Federal Rule of Civil Procedure 8(a), which governs the contents of complaints in federal district courts and was addressed by the Supreme Court in Bell Atl. Corp. v. Twombly,
.The briefing on Count One relating to the October 22, 2003 claim did not address a potential jurisdictional issue, to which the court's attention was drawn by the span of time between the formation of the contract in 1995 and the plaintiffs' submission to the Contracting Officer in 2003. Plaintiffs’ claims relating to the October 22, 2003 claim may be outside another statute of limitations in the CDA. The CDA states
. Citing a pre-CDA case, Crown Coat Front Co., v. United States,
. There is some possibility that the twelve month statute of limitations under 41 U.S.C. § 609(a)(3) may be subject to equitable tolling. See Nwogu v. United States,
. The term "court” in 28 U.S.C. § 1631 includes "the courts of appeals and district courts of the United States, the United States District Court for the District of the Canal Zone, the District of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, and the Court of International Trade.” 28 U.S.C. § 610(2006).
. Citing a pre-CDA case, Nager Electric Co. v. United States,
. Because plaintiffs' claims relating to Count II would not be timely even if all of plaintiffs' submissions to the Contracting Officer were treated by the Contracting Officer as requests for reconsideration, the court does not find it necessary to decide whether plaintiffs’ submissions to the Contracting Officer were in fact requests for reconsideration.
. It is the court’s view that plaintiffs’ claim is a tort claim, not a breach of contract claim. The court recognizes that ”[i]f contractual relations exist, the fact that the alleged breach is also tortious does not foreclose Tucker Act jurisdiction.” Wood v. United States,
. Based on the applicable statute of limitations, plaintiffs’ fraud claim could not have been brought in another court at the time it was filed.
. In relevant part, the PPA provides that "the head of an agency acquiring property or service from a business concern, who does not pay the concern for each complete delivered item of property or service by the required payment date, shall pay an interest penalty to the concern on the amount of the payment due.” 31 U.S.C. § 3902(a) (2006).
. 31 U.S.C. § 3907(c) shows that the PPA is inapplicable when there is a dispute between the parties:
Except as provided in section 3904 of this title, this chapter does not require an interest penalty on payment that is not made because of a dispute between the head of an agency and a business concern over the amount of payment or compliance with the contract. A claim related to the dispute, and interest payable for the period during which the dispute is being resolved, is subject to the Contract Disputes Act of 1978.
31 U.S.C. § 3904, which is inapplicable to this case, provides:
The head of an agency offered a discount by a business concern from an amount due under a contract for property or service in exchange for payment within a specified time may pay the discounted amount only if payment is made within the specified time. The head of the agency shall pay an interest penalty on an amount remaining unpaid in violation of this section. The penalty accrues as provided under sections 3902 and 3903 of this title, except that the required payment date for the unpaid amount is the last day specified in the contract that the discounted amount may be paid.
.In their Response, plaintiffs cite to Brooklyn & Queens Screen Manufacturing Co. v. United States,
. Plaintiffs cite to First Hartford Corp. Pension Plan & Trust v. United States (First Hartford),