ROLLOCK COMPANY, et al., Plaintiffs, v. UNITED STATES, Defendant.
No. 12-245C
United States Court of Federal Claims.
March 28, 2014
115 Fed. Cl. 317
LETTOW, Judge.
Sarah M. Valenti, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her on the briefs were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was James Epstein, Office of the Northeast Regional Solicitor, United States Department of the Interior.
OPINION AND ORDER
LETTOW, Judge.
The dispute in this case is over terms of a property acquisition and relocation contract between the government and the plaintiffs, the Rollock Company, Anthony Kordell, and Christopher Kordell (collectively “the Rollock plaintiffs” or “Rollock“).1 The National Park Service (“NPS“) purchased land owned by the Rollock plaintiffs for the Flight 93 National Memorial, land on which Rollock operated a scrap metal recycling facility. Compl. ¶¶ 2, 9.2 In contemplation of the land purchase, the contract between the parties provided for: (1) the sale of business scrap inventory from Rollock to NPS and (2) a self-move of Rollock‘s business personal property, including embedded materials, to a new location. NPS agreed to pay Rollock for monitoring costs associated with disposition of the scrap inventory NPS was purchasing and removal of Rollock‘s business personal property from the land. Rollock alleges that NPS violated the terms of the contract by refusing to pay the full amount owed for the costs of monitoring and of removal of Rollock‘s business personal property. Compl. ¶¶ 28-29. Pending before the court is the government‘s Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, for Summary Judgment (“Def.‘s Mot.“), ECF No. 15. This motion has been fully briefed, and a hearing was held on January 7, 2014.
BACKGROUND3
In 2008, NPS approached the Rollock plaintiffs to discuss purchasing the property on which Rollock‘s scrap business was located, for the purpose of reconfiguring the property as part of a memorial for the victims of Flight 93, which crashed as a result of terrorist acts on September 11, 2001. See Pl.‘s Br. in Opp‘n to Def.‘s Mot. (“Pl.‘s Opp‘n“) at 5, ECF No. 18; see also Def.‘s Mot. at 2. Between July 28, 2008 and July 17, 2009, NPS and Rollock negotiated an agreement for the acquisition of the land and another agreement for the purchase of certain materials and the relocation of Rollock‘s business. See Def.‘s App. A1-A50.4 During this discussion, NPS informed Rollock that relocation expenses would be covered by the government in accordance with the Uniform Reloca-
As a result of these negotiations, NPS prepared and transmitted a “Draft Proposed Relocation Agreement” on July 17, 2009. Def.‘s App. A34. This agreement was executed by Rollock on August 25, 2009 and by NPS on August 27, 2009. Def.‘s App. A58-78 (“Relocation Agreement” or “Agreement“). NPS agreed to purchase Rollock Company‘s stockpiled business scrap inventory for $1,812,000.00, a scale for $65,000.00, and stockpiled topsoil for $290,192.00. Def.‘s App. A58-59. NPS also agreed to provide self-move relocation costs for Rollock‘s embedded material inventory based on
Because the transfer of the business scrap and the removal of the embedded material was to take place over a period of months, Rollock would require personnel to monitor the site. In the “business scrap inventory” section of the Agreement, the contract provided reimbursement for these monitoring costs, stating that
Rollock will be reimbursed for related costs paid to any persons to monitor the progress of the sale by NPS, or their contractor, of the [business scrap inventory] and the removal of the [embedded material]. The cost of said reimbursement will be at a pre-determined rate agreed to by NPS and Rollock[,] which rate will be the actual documented rate paid for such monitoring personnel.
Def.‘s App. A59. NPS and Rollock later confirmed that the rate for the monitor at the Rollock site would be $60.00 per hour. See Def.‘s App. A86 (Letter from Moot to Beyer (Oct. 19, 2009)); Def.‘s Mot. at 7; Pl.‘s Opp‘n at 8.
A. Monitoring Costs
NPS acquired title to the Rollock site on September 23, 2009. Pl.‘s Opp‘n at 7. Thereafter, Rollock began submitting claims to NPS for reimbursement of monitoring costs. The first claim submitted totaled $15,840.00 and covered the period from Octo-
On June 18, 2010, NPS notified the Rollock plaintiffs that “to process payment for the monitor[,] the NPS must have receipted evidence of payment to the employee and time-sheets.” Def.‘s App. A120 (Letter from Conte to Moot (June 18, 2010)). In response, on June 25, 2010, Rollock submitted canceled checks issued to the monitor dating from October 30, 2009 to May 28, 2010. Def.‘s App. A121, A134-49. Rollock also submitted an additional claim of $12,660.00 for monitoring between April 28, 2010 to May 25, 2010, bringing the total unpaid claim amount to $69,465.00. Def.‘s App. A127.8 The documents that Rollock submitted showed that the monitor was being paid an hourly rate of $40.00 with overtime calculated at $60.00 per hour. Def.‘s App. A157. On July 9, 2010, NPS responded to the Rollock plaintiffs to advise them that it considered the total reimbursable costs for the monitor to be the actual expense paid by Rollock to the monitor, calculated at $40.00 of regular pay per hour, rather than the earlier agreed rate of $60.00 per hour. Def.‘s App. A159 (Letter from Beyer to Moot (July 9, 2010)). NPS determined that it owed Rollock a total of $29,108.39, the difference between the total monitoring expense of $44,948.39 actually paid to the monitor less $15,840.00 already paid by NPS to Rollock. Id. Rollock responded on July 14, 2010, stating that it believed the contract indicated that the proper reimbursement amount should be calculated based on $60.00 per hour and that the actual wages of $40.00 per hour did not adequately cover the costs to the company for employing the monitor. Def.‘s App. A161 (Letter from Moot to Beyer (July 14, 2010)).9 NPS disagreed; on July 14, 2010, it paid Rollock $29,108.39, reflecting the total it believed was due to Rollock. Def.‘s App. A165.10
On September 7, 2010, NPS informed Rollock that it was “not obligated to pay . . . monitoring costs beyond June 24, 2010” be-
Rollock responded to NPS, disagreeing with NPS‘s conclusion that monitoring was not needed after June 24, 2010. Def.‘s App. A231 (Letter from Moot to Beyer (Dec. 2, 2010)). Rollock interpreted the Agreement to require monitoring until all the embedded material was removed, and because this condition had not been met, Rollock believed that NPS was still obligated to pay monitoring costs. Id. Accordingly, Rollock submitted a claim totaling $76,305.00 for monitoring costs between May 26, 2010 through November 23, 2010 at the hourly rate of $60.00 with overtime at $90.00 per hour. See id.11 NPS responded on December 20, 2010, that it had determined $8,110.00 was reimbursable for monitoring between May 26, 2010 and June 22, 2010 and denied the remaining amounts claimed. Def.‘s App. A245 (Letter from Beyer to Moot (Dec. 20, 2010)). NPS reiterated that monitoring was not required until permits were obtained and then “[a]ctual monitoring expenses for [removal activity] can be submitted for reimbursement.” Id. NPS advised that Rollock had the right to appeal the denial of this most recent claim for reimbursement via written appeal within 60 days to the Department of the Interior, Office of the Director, Office of Hearing and Appeals. Id. NPS did not include any statutory or regulatory citations that might identify and clarify the appeals process. See Pl.‘s Opp‘n at 11; see also Def.‘s App. A245. Rollock did not file an appeal with the Office of Hearing and Appeals. Def.‘s Mot. at 10. Instead, Rollock responded with a letter reiterating its arguments for reimbursement for the total monitoring costs claimed and indicating that it believed the Contract Disputes Act,
On May 17, 2011, NPS notified Rollock that the embedded material inventory had been stockpiled and was ready to be removed from the site. Def.‘s App. A249 (Letter from Sindelar to Moot (May 17, 2011)). NPS also included information regarding a bid it had received for the loading and hauling of the embedded material, totaling $635,000.00 for an approximate volume of 19,037 cubic yards of stockpiled embedded material. Def.‘s App. A249-54. Using this bid as its reference, NPS determined that the “total reimbursable payment due upon completion of this self-move of the [s]tockpiled [e]mbedded [m]aterial will be $635,000.00.” Id. Rollock responded on May 19, 2011, requesting an advance relocation payment, similar to advance payments made by NPS for earlier self-moves of Rollock‘s personal property. Def.‘s App. A259 (Letter from Moot to Sindelar (May 19, 2011)). NPS denied Rollock‘s request for an advance because the program was “a reimbursable program” that did not allow payment for costs not yet incurred. Def.‘s App. A274 (Letter from Sindelar to Moot (June 22, 2011)). NPS did confirm that it “would consider partial payments paid directly to a contractor provided [it] had a valid contract to move the [s]tockpiled [e]mbedded [m]aterial.” Id.13
On June 20, 2011, Rollock sold to Kinsley Construction, Inc. (“Kinsley“) approximately 4,500 cubic yards of topsoil14 which was stockpiled at the Rollock site, for a total price of one dollar. Def.‘s App. A294 (Letter from Greg Martz, Kinsley Construction Project Manager, to Moot (June 20, 2011)); Hr‘g Tr. 26:5 to 27:20, 28:7-11 (Jan. 7, 2014).15 The “topsoil” was dirt that had been accumulated during the process of scraping and removing the embedded material. Hr‘g Tr. 26:5 to 27:20. Kinsley paid Rollock and removed the topsoil from the site before the end of June. See Def.‘s App. A288 (e-mail from Sindelar (June 20, 2011)).16 Kinsley reportedly was the government‘s contractor to prepare the Flight 93 site for the memorial, and it apparently wanted the dirt as fill in leveling the ground. Hr‘g Tr. 27:1-7.
On June 27, 2011, Rollock hired Military Resource Enhancement Specialists, Inc. (“MRES“) to move the stockpiled embedded material. The contract specified relocation of an estimated 19,037 cubic yards of material for $635,000.00. Def.‘s App. A280 (Agreement between Rollock and MRES (June 27, 2011)). Rollock informed NPS of the contract with MRES, Def.‘s App. A276 (Letter from Moot to Sindelar (June 28, 2011)), but not of the contract with Kinsley, see Def.‘s App. A276, A288. Rollock also filed a claim with NPS seeking an advance payment of half of the contract relocation price, $317,500.00. Def.‘s App. A276. NPS denied Rollock‘s claim for an advance payment, citing a need for documentation that MRES had begun the relocation process, and it also informed Rollock of its awareness of the topsoil sale to Kinsley. Def.‘s App. A289 (Letter from Sindelar to Moot (July 5, 2011)). NPS advised that it would reduce the self-move reimbursement to reflect the volume of topsoil sold to Kinsley. Id. Shortly thereafter, Rollock responded by indicating that half of the stockpiled material had been moved and asking that payment be made. Def.‘s App. A292 (Letter from Moot to Sindelar (July 7, 2011)). NPS took the position that because the topsoil was owned by Kinsley rather than by Rollock at the time of relocation, Rollock could not seek relocation costs for that material. Def.‘s App. A295 (Letter
NPS revised the relocation amount to $451,541.48,18 reflecting a reduction for the volume of topsoil removed by Kinsley. Def.‘s App. A306 (Letter from Sindelar to Moot (Aug. 5, 2011)). Through a series of four payments, each for a quarter of the reduced amount, NPS approved and Rollock received $451,541.48, the complete amount of NPS‘s reduced total. Def.‘s Mot. at 7; Pl.‘s Opp‘n at 18. Rollock consistently stated that it believed it was entitled to the full amount of $635,000.00, Def.‘s App. A297, and that it “d[id] not agree with the reduction in the price,” Def.‘s App. A320, A343, A349. Rollock uniformly certified its claims on the form provided by NPS to make a “Claim for Relocation Payments—Nonresidential.” See, e.g., Def.‘s App. A322, A340, A349. With each payment, NPS notified Rollock of its right to appeal the decision within 60 days to the Department of Interior‘s Office of Hearings and Appeals. See Def.‘s App. A306-07, A337, A361-62. No such appeals were filed.
STANDARDS FOR DECISION
To bring claims before the court, the plaintiff must plausibly allege sufficient facts to show the court‘s subject matter jurisdiction over each claim. McAfee, Inc. v. United States, 111 Fed.Cl. 696, 706 (2013) (citing McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)). When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC“), unchallenged factual allegations in the complaint will be construed in favor of the pleader, but any disputed jurisdictional facts must be shown by a preponderance of the evidence. Id. The court may look beyond the pleadings and inquire into jurisdictional facts. See Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991).
As an alternative to dismissal under RCFC 12(b)(1), the government has moved for summary judgment under RCFC 56. RCFC 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute is one that “may reasonably be resolved in favor of either party.” Id. at 250.
ANALYSIS
A. The Statutes Underpinning Rollock‘s Contractual Claims
The Tucker Act,
The CDA applies to “any express or implied contract . . . made by an executive agency for—(1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair, or maintenance of real property; or (4) the disposal of personal property.”
The government disagrees that the CDA applies and contends that the Relocation Act is the appropriate basis for Rollock‘s claims for money damages. Def.‘s Reply to Pl.‘s Opp‘n (“Def.‘s Reply“) at 4-8, ECF No. 19. Congress created the Relocation Act to establish a “[u]niform policy on real property acquisition practices.”
The head of the lead agency is authorized to issue such regulations and establish such procedures as he may determine to be necessary to assure—
. . .
(2) that a displaced person who makes proper application for a payment authorized for such person by this subchapter shall be paid promptly after a move or, in hardship cases, be paid in advance;
(3) that any aggrieved person may have his application reviewed by the head of the Federal agency having authority over the applicable program or project.
The Department of Transportation, acting under the authority of Section 213, has promulgated implementing regulations found at
B. Applicability of the CDA
In support of its argument that the CDA serves as the basis for all of its claims, Rollock cites to Bonneville Assocs. v. United States, 30 Fed.Cl. 85 (1993), as support for the contention that the CDA may apply to a dual-purpose contract where one purpose is covered under the CDA but another purpose is not. See Pl.‘s Opp‘n at 22. This reading of Bonneville Associates is correct, but Rollock only gets partial help from this decision. While the court in Bonneville Associates did ultimately apply the CDA‘s provisions, it did so only to part of the contract. The court determined that dual elements of the contract were sufficiently distinct that it could apply the CDA to one aspect of the contract without concerning the other. See Bonneville Assocs., 30 Fed.Cl. at 88. Thus, Bonneville Associates informs that claims under a dual-purpose contract may be severable and that different statutes may apply to claims arising from such a contract. Here, Rollock brings separate claims, one for monitoring costs and another for relocation costs for embedded materials, see Compl. ¶¶ 21, 28-29, and these claims can and do have different statutory predicates.
Based on the terms of the Agreement, the monitor was responsible to oversee (1) the sale of business scrap inventory from Rollock to NPS and (2) the removal of the embedded material from the Rollock site. Def.‘s App. A59. The removal of the embedded material did not begin until after the sale to the government of the business scrap inventory. Id. Therefore, costs associated with the monitor pertain both to the government‘s purchase of Rollock‘s scrap inventory and to the removal of Rollock‘s personal property, specifically the embedded material.20 The purchase by NPS of the business scrap inventory is manifestly a procurement under the CDA. As a result, the portion of the monitoring costs associated with overseeing the sale of the business scrap inventory is properly governed by the CDA.
The removal and relocation of the embedded material is a different matter. Rollock argues that the relocation of embedded material is an “alteration of real property” within the meaning of the CDA. Pl.‘s Opp‘n at 22-23 (referring to a portion of the applicability delineation in
Nonetheless, Rollock avers that “there is no conflict between the CDA and the [Relo-
Additionally, the court‘s observations in Zoeller regarding the justiciability of Section 4651 of the Relocation Act are irrelevant to the case at hand because Rollock is not rely-
C. Prerequisites for a Claim under the CDA
For the court to exercise jurisdiction over a claim made under the CDA, the contractor must first submit a written claim to the contracting officer and the contracting officer must issue a final decision on the claim. Northrop Grumman Computing Sys., Inc. v. United States, 709 F.3d 1107, 1110-12 (Fed.Cir.2013); Rex Sys., Inc. v. Cohen, 224 F.3d 1367, 1372 (Fed.Cir.2000). A claim under the CDA must be “(1) a written demand or assertion, (2) seeking as a matter of right, (3) the payment of money in a sum certain.” James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1542 (Fed.Cir.1996). The claims need not take any specific form as long as they provide the contracting officer with adequate notice of the basis and the amount of the claims. Northrop Grumman, 709 F.3d at 1112-13; Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592-93 (Fed.Cir.1987). For a claim over
The government argues that Rollock failed to satisfy these requirements because the submission of claims to Ms. Beyer, Mr. Sindelar, and Mr. Conte do not satisfy the requirement of a submission to a contracting officer. Def.‘s Reply at 6-7. There are a number of problems with the government‘s contention. First, the government has failed to name the appropriate person with whom Rollock should have filed a claim. Second, it is evident that submission of claims to these individuals was sufficient to receive at least a portion of payment on the claims. See Def.‘s App. A94 (approval dated Dec. 10, 2009), A152 (approval dated July 13, 2010), A221 (approval dated Oct. 4, 2010), A235 (approval dated Dec. 20, 2010). Third, these individuals responded to Rollock‘s submission of claims with either payment or an explanation refusing payment including a letter from Ms. Beyer constituting “a final response.” Def.‘s App. A248; see also Def.‘s App. A94 (Beyer‘s recommendation for payment), A159 (Beyer‘s request for additional documentation to enable processing of a claim), A165 (Beyer‘s statement of NPS‘s position on monitoring costs), A211 (Conte‘s reiteration of NPS‘s position on monitoring, containing citations to portions of the Agreement).21 If, as the government contends, they were unauthorized to respond, this was not evident in any of the correspondence. Moreover, as stated in United Partition Sys., Inc. v. United States, 59 Fed.Cl. 627, 638 (2004), “[t]his [c]ourt has rejected attempts by the government to attack a contractor‘s submission of a claim based on its delivery to the wrong government employee.” Id. at 638 (citing Flying Horse v. United States, 49 Fed.Cl. 419, 428-29 (2001) (plaintiff did not know who the proper contracting officer was and government failed to make proper inquiry and forward the claim)). Correlatively, the Federal Circuit has held that in the obverse situation, i.e., transmission from the government to the contractor, the submission need only be delivered to an authorized agent of the contractor to fulfill the requirements of the CDA. See Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991).
The government also argues that the claims were not properly certified as required by Section 7103(b) of the CDA. Def.‘s Reply at 7.22 In asserting this position, however, the government fails to account for the fact that Rollock did not file a single claim for monitoring costs but rather submitted a series of claims, none amounting to over $100,000. See Def.‘s App. A87 (claim for $15,840), A104 (claim for $26,565), A110 (claim for $18,180), A119 (claim for $16,060), A127 (claim for $12,060), A231 (claim for $76,305). Therefore, no certification was necessary. Regardless, the court is satisfied that Rollock‘s certification on NPS‘s form for a “Claim for Relocation Payment” satisfies the certification requirements of Paragraph 7103(b)(1) of the CDA. Rollock‘s claim for monitoring costs, as it relates to costs associated with the sale of business scrap, is within the court‘s jurisdiction under the CDA.23
The government argues that the court cannot exercise subject matter jurisdiction over any claims under the Relocation Act because Rollock has failed to exhaust its administrative remedies. Def.‘s Mot. at 13. The doctrine of exhaustion of administrative remedies provides that “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). Although the government frames its exhaustion argument as a threshold jurisdictional question, the doctrine of exhaustion includes both statutory exhaustion, which is jurisdictional, and prudential exhaustion, which is not. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by statute on other grounds, Prison Litigation Reform Act of 1995,
Statutory exhaustion is required “[w]here Congress specifically mandates” it, McCarthy, 503 U.S. at 144, with “sweeping and direct statutory language indicating that there is no federal jurisdiction prior to exhaustion, or the exhaustion requirement is treated as an element of the underlying claim.” Elk v. United States, 70 Fed.Cl. 405, 407 (2006) (internal quotation marks omitted) (quoting Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004)). Contrastingly, prudential exhaustion places the decision of whether to require exhaustion prior to judicial review within the sound discretion of the court. McCarthy, 503 U.S. at 144. In exercising judicial discretion, the court considers “the ‘twin purposes of protecting administrative agency authority and promoting judicial efficiency.‘” White & Case, 67 Fed.Cl. at 170 (quoting McCarthy, 503 U.S. at 145). The court considers these two exhaustion principles in turn.
1. Statutory exhaustion.
In the government‘s view, the Relocation Act and its regulations provide sufficient evidence to indicate that statutory exhaustion applies. See Def.‘s Mot. at 13-18. In support of its argument, the government cites to legislative history indicating that Congress sought in the Relocation Act to provide an administrative process as “an alternat[ive] to judicial review.” Def.‘s Mot. at 14-15 (quoting H.R.Rep. No. 91-1656 (1970), reprinted in 1970 U.S.C.C.A.N. 5850, 5855). Correlatively, the Department of Transportation‘s regulations establishing a process for submission of claims coupled with administrative appeals procedures express an objective to “minimize litigation and relieve congestion in the courts.”
The Relocation Act is silent insofar as judicial action is concerned. No jurisdictional grant or waiver of sovereign immunity is provided. Claimants are thus forced to turn to other statutes as a basis for juridical redress. District courts can take jurisdiction over Relocation Act claims pursuant to the federal question statute,
The Little Tucker Act,
And, where district courts have taken jurisdiction over Relocation Act claims pursuant to Section 1331 and reliant upon the APA‘s waiver of sovereign immunity, they have found an exhaustion requirement because the APA independently requires exhaustion of all available administrative remedies, i.e., the agency action must be “final” before a suit may be brought, regardless of whether the underlying statute requires exhaustion. See, e.g., Dalton v. Las Vegas, 282 Fed.Appx. 652, 656 (10th Cir.2008); Consumers Power Co. v. Costle, 468 F.Supp. 375, 380 (E.D.Mich.1979), aff‘d, 615 F.2d 1147 (6th Cir.1980); United States v. 249.12 Acres of Land, 414 F.Supp. 933, 935 (W.D.Okla.1976); Smith v. Cookeville, 381 F.Supp. 100, 102, 106 (M.D.Tenn.1974).
In this court, jurisdiction regarding Relocation Act claims depends upon the grant provided by the Tucker Act. In this context, the government relies on Mayne v. United States, 13 Cl.Ct. 60 (1987), to support its argument that a claim for damages under the Relocation Act requires statutory exhaustion. Def.‘s Mot. at 16. That reliance is inappropriate. The court in Mayne required exhaustion on prudential, not statutory, grounds. Mayne, 13 Cl.Ct. at 65. In addition, Mayne is distinguishable from the case at hand in two ways. First, in Mayne, the plaintiffs never filed any claim with the government agency prior to bringing the case before the court. Id. The court‘s determination that plaintiffs failed to exhaust their administrative remedies reflected this failure to initiate the agency process or even to inform the agency of the dispute. Id. Rollock, on the other hand, submitted administrative claims to NPS prior to filing suit. Second, the plaintiffs in Mayne had no contract with the agency respecting relocation assistance. Contrastingly, Rollock has a specific relocation agreement over which it is suing.
Unlike the APA, the Tucker Act does not require exhaustion of permissive administrative remedies before bringing a
On the other hand, claims of entitlement to disability retirement pay, arising under
The Relocation Act and its regulations provide no indication that Congress sought to require agency appeals prior to judicial review. The Relocation Act‘s authorization to promulgate appeal procedures is written in permissive terms. The statute states that the “head of the lead agency is authorized to issue such regulations and establish such procedures as he may determine to be necessary.”
[t]he relevant regulation related to the Relocation Act merely allows for an administrative appeal, which a party “may file,” but does not require this,
24 C.F.R. § 290.17(f) . In Darby v. Cisneros, 509 U.S. 137, 154 (1993) [parallel citations omitted], the Supreme Court held that “where the APA applies, an appeal to ‘superior agency authority’ is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.” Here such review is not expressly required, but merely permitted, and hence exhaustion of the administrative appeal process was not necessary.
620 F.3d at 359 (emphasis in the original). In short, the regulations addressing administrative appeals cannot be characterized as “sweeping and direct” in requiring exhaustion. See Elk, 70 Fed.Cl. at 407. Without an expression of explicit intent from Congress and given the permissive nature of the pertinent regulations promulgated by the Department of Transportation as the lead agency pursuant to Congress‘s delegation, the court cannot find that statutory exhaustion of administrative remedies is necessary before filing a Relocation Act claim in this court.25
2. Prudential exhaustion.
Having found that the Relocation Act itself does not require exhaustion of administrative appeals before filing a claim in this court, the pertinent question becomes whether, for prudential reasons, the court should require exhaustion of administrative appeals.
In considering prudential exhaustion, the court is called to balance the interests of the individual, which favor prompt access to a judicial forum, see McCarthy, 503 U.S. at 146 (“[F]ederal courts are vested with a ‘virtually unflagging obligation’ to exercise the jurisdiction given them.” (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-18 (1976))), against countervailing institutional interests, see Elk, 70 Fed.Cl. at 408 (citing McCarthy, 503 U.S. at 146). The Federal Circuit has “long held that, in Tucker Act suits, a plaintiff is not required to exhaust a permissive administrative remedy before bringing suit.” Martinez, 333 F.3d at 1304. A court should also consider “at least three broad sets of circumstances” that weigh against imposing prudential exhaustion. McCarthy, 503 U.S. at 146. First, the court should not require exhaustion if the administrative remedy may create undue prejudice to subsequent court action, specifically in cases where there is an unreasonable or indefinite timeframe at the agency level. Id. at 146-47. Conversely, the administrative remedy may be helpful to provide the agency with an opportunity to develop an administrative record, correct errors, and narrow the issues needing judicial resolution. See Itochu Bldg. Prods. v. United States, 733 F.3d 1140, 1145 (Fed.Cir.2013). Second, requiring exhaustion is not advisable when there is “doubt as
Although the regulations in Part 24 provide some assurances regarding agency review, e.g., Subsection 24.10(g) requires prompt review by the agency and Subsection 24.10(h) requires a disinterested reviewer,
In this instance, because NPS addressed some of Rollock‘s claims but not others, it is not apparent how Interior‘s rules regarding appeals would be applied, especially to the claims NPS did not decide, even tentatively. Ordinarily, the agency would have an institutional concern that it have an opportunity to develop the factual record of a disputed matter. If this case were to be dismissed on grounds of prudential exhaustion, the court‘s concerns regarding the process would remain unresolved. See Elk, 70 Fed.Cl. at 409 n. 3. Given the court‘s general determination that the exhaustion of a permissive administrative process is not necessary in Tucker Act suits, along with the concerns regarding Interior‘s process for reviewing NPS decisions, the court declines to require prudential exhaustion of the administrative appeal remedy.
3. Jurisdictional questions apart from exhaustion.
In addition to the considerations of exhaustion, the court has an obligation to determine if additional hindrances to jurisdiction exist. Generally this court has exclusive jurisdiction over claims arising under contracts with the federal government in which the plaintiff seeks more than $10,000 in damages. See
Once the court determines that a case is within its jurisdiction, it has juridical power to enter an order remanding the case to another body, either at the request of a party or on its own motion. See Emerald Coast Finest Produce Co. v. United States, 75 Fed.Cl. 549, 553 (2007) (citing
The portion of the claim for monitoring costs of the sale of metal scrap is governed by the CDA and Rollock has satisfied the claim requirements under that statute. The portion of the claim for monitoring costs of the embedded materials and the claim for relocation costs of the embedded materials are governed by the Relocation Act. The court has jurisdiction over these claims because the Relocation Act does not require exhaustion of administrative remedies.
Pursuant to RCFC 52.2, this case is remanded to the National Park Service for a period of six months. See RCFC 52.2(b)(1)(B). The case is stayed pending the results of the remand. See RCFC 52.2(b)(1)(C). The court requests that the parties file a status report on or before 90 days from the date of this decision, regarding the progress of the remand. See RCFC 52.2(b)(1)(D).
It is so ORDERED.
CONCLUSION
For the reasons stated above, the government‘s motion to dismiss is DENIED, as is its alternative motion for summary judgment.
Charles F. Lettow
Judge
Notes
NPS sent a proposed amendment to the Agreement on July 28, 2010. Def.‘s App. A166. The proposed amendment would have set reimbursement for monitoring costs at $60.00 per hour, required Rollock to provide NPS with cancelled checks and payroll pay stubs, and provided an end date to monitoring on July 30, 2010. Def.‘s App. A167. The amendment was never executed. See Pl.‘s Opp‘n at 10 n.3.
In all events, the government emphasizes that the Department of Transportation‘s regulations reach “[g]overnment-wide,” applying to all federal departments and agencies, including the Department of the Interior. Def.‘s Mot. at 15.
For claims of more than $100,000 made by a contractor, the contractor shall certify that—
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the contractor‘s knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable; and
(D) the certifier is authorized to certify the claim on behalf of the contractor.
The certification on the form provided by NPS for use with the Relocation Act, which was actually used by Rollock, states that:
I (we) CERTIFY under the penalties and provisions of U.S.C. Title 18, Sections 286, 287, 1001, and any other applicable law, that this claim and information submitted herewith have been examined by me (us) and are true, correct, and complete. I (we) further certify that I(we) have not submitted any other claim for, or received reimbursement or compensation from any other source for any item of this claim, and that any receipts submitted herewith accurately reflect costs actually incurred. I(we) further certify that my (our) choice of payment was made on the basis of a full explanation by the displacing agency representative of the differences between the types of payments available.
Def.‘s App. A94, A152, A221, A235.
Separately, where money claims seeking specific relief rather than money damages are at issue, jurisdiction may also be excluded from this court‘s purview under the precedent established in Bowen v. Massachusetts, 487 U.S. 879, 905 (1988). Because this court lacks general equitable powers, the district courts are the appropriate forum for equitable monetary relief. Id. In Bowen, Massachusetts was awarded prospective injunctive relief for the government‘s refusal to reimburse the state for Medicaid expenses, which in essence provided monetary relief by way of an adjustment to future payments but did not provide a judgment for money. Id. at 909. Rollock‘s claims are properly considered claims for money damages because they seek a monetary judgment for alleged breach of contract. See Greenhill v. United States, 81 Fed.Cl. 786, 790 (2008) (“[M]oney damages are the default remedy for breach of contract.“).