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https://www.courtlistener.com/api/rest/v3/opinions/7218221/ | ORDER AND MEMORANDUM **
Maddela petitions for review of the Board of Immigration Appeals’ (BIA) decision concluding that Maddela is deportable as an aggravated felon based on his conviction for burglary in the second degree in violation of California Penal Code (CPC) § 459. We deny Maddela’s motion to supplement the record. We dismiss Maddela’s petition for review for lack of jurisdiction.
Maddela’s deportation proceedings commenced March 13, 1997, and are governed by the transitional rules of the Illegal Im*126migration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).1 The transitional rules of IIRIRA generally preclude judicial review for aliens convicted of aggravated felonies. See IIRIRA, § 309(c)(4)(G) (stating that “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed” an aggravated felony).
Because the issue in this appeal is whether [Maddela] committed an aggravated felony, and because we have jurisdiction to determine our own jurisdiction, the jurisdictional question and the merits collapse into one. If [Maddela] did not commit an aggravated felony, we have jurisdiction, and [he] wins on the merits. If [Maddela] did commit an aggravated felony, we do not have jurisdiction (and [he] would lose on the merits anyway). The case thus turns on whether [Maddela’s] conviction for ... burglary qualifies as a “burglary” ... as ... used in the definition of “aggravated felony.”
Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000) (internal citation omitted).
“The question of whether a conviction under federal law is a deportable offense is reviewed de novo.” Albillo-Figueroa v. INS, 221 F.3d 1070, 1072 (9th Cir.2000). Maddela argues that he is not deportable as an aggravated felon because his conviction for burglary under CPC § 459 does not constitute an aggravated felony because Maddela never admitted to an “unlawful” entry, an essential element of generic burglary as defined by Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143,109 L.Ed.2d 607 (1990).
The term “burglary” is undefined in the Immigration and Nationality Act. See 8 U.S.C. § 1101(a)(43)(G). The BIA therefore applies the generic definition of burglary found in Taylor v. United States. See Ye, 214 F.3d at 1132. The elements of generic burglary under Taylor are: (1) an unlawful or unprivileged entry into, or remaining in, (2) a building or structure, with (3) intent to commit a crime. 495 U.S. at 598.
Under California law, “[e]very person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel ... with intent to commit grand or petit larceny or any felony is guilty of burglary----” CPC § 459. The definition of burglary under California law is broader than Taylor’s generic definition because, in part, an offender need not have made an “unlawful” entry. Rather, CPC § 459 punishes any entry to one of several designated locations, as long as the entry is with intent to commit larceny or any felony. See United States v. Franklin, 235 F.3d 1165, 1169 (9th Cir.2000) (recognizing that the conduct criminalized in CPC § 459 is broader than the generic definition of burglary).
We apply a categorical approach to determine whether an offense qualifies as an aggravated felony. See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002) (citing Taylor ). Under the categorical approach, we “look[ ] only to the statutory definition[ ] of [a] prior offense[ ], and not to the particular facts underlying [a] conviction[ ].” Taylor, 495 U.S. at 600.
Taylor also permits us “to go beyond the mere fact of conviction in a narrow range of cases.” Taylor, 495 U.S. at 602. In cases where a state statute
*127criminalizes both conduct that does and does not qualify as an aggravated felony, then we proceed to a “modified categorical approach.” Under the modified categorical approach, we conduct a limited examination of documents in the record to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime even though his or her statute was facially over-inclusive.
Chang, 307 F.3d at 1189 (internal citation omitted).
The California burglary statute can be violated in ways that qualify as aggravated felonies and ways that do not. The BIA’s examination of documents in the record to determine whether Maddela’s conviction satisfied the generic definition of burglary was appropriate.2
We have considered several cases in which defendants have pleaded guilty to charging papers containing allegations similar to those in the complaint against Maddela. In each case, we hold that the convictions satisfy Taylor’s generic definition. See United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir.2002) (holding that a guilty plea to a charge of unlawfully entering into a drug store with the intent to commit larceny satisfies Taylor’s definition of burglary); United States v. Dunn, 946 F.2d 615, 620 (9th Cir.1991) (holding that a guilty plea to unlawfully entering another person’s apartment with intent to commit larceny meets the generic definition of burglary); see also United States v. Williams, 47 F.3d 993, 995 (9th Cir.1995) (holding that a plea of nolo contendere to a charge of unlawfully entering a residence with the intent to commit larceny fits the generic definition of burglary).
A guilty plea “conclusively proves the factual allegations contained in the indictment.” Williams, 47 F.3d at 995 (citation omitted). Maddela’s plea form indicates that he pleaded guilty to Count 1. Count 1 alleges that Maddela unlawfully entered a building with the intent to commit theft. Maddela’s offense meets the generic definition of burglary under Taylor. Maddela committed an aggravated felony.
We deny the pending motion to supplement the record. We dismiss Maddela’s petition for review for lack of jurisdiction.
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. For "cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997, IIRIRA’s transitional rules apply.” Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997).
. The BIA’s holding relied on the complaint against Maddela and his plea agreement. Under the modified categorical approach, it is permissible to consider charging papers and signed plea agreements. See Franklin, 235 F.3d at 1170 n. 5. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218222/ | MEMORANDUM *
Tatyana Leonidovna Gartsman, a.k.a. Tatyana Turina,1 a citizen of the Ukraine, petitions for review of the order of the Board of Immigration Appeals (“BIA”) upholding an Immigration Judge’s denial of her request for asylum and for withholding of deportation.2 We reverse and remand.
An alien can qualify for asylum as a refugee if she is unwilling or unable to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” 8 U.S.C. § 1101(a)(42)(A). If a petitioner establishes that she has experienced past persecution, there is a rebuttable presumption that the petitioner has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1)(i). The INS may rebut the presumption of future persecution by showing by a preponderance of the evidence that the country conditions have changed to such a degree that she longer has a well-founded fear of being persecuted if she were to return. See id.
*129In this case, in order for the INS to have rebutted the statutory presumption, the BIA would first have had to apply it. Turina presented evidence— including expulsion from school, termination of her job, and, most important, two acts of direct personal violence — that appears to be sufficient to demonstrate past persecution based upon her Baptist faith. At this point, she would have been entitled to a rebuttable presumption of future persecution, which the INS could overcome only by demonstrating that conditions in the Ukraine had changed to such an extent that Turina could no longer maintain a well-founded fear of future persecution. Rather than apply the presumption and then examine whether it had been rebutted, the BIA in its decision simply proceeded, without determining whether Turina had suffered past persecution, to discuss the present conditions in the Ukraine, and concluded that Baptists could generally worship without interference in that country. In doing so, it, inter alia, failed to make the necessary individualized assessment of Turina’s circumstances. See Osorio v. INS, 99 F.3d 928, 932-33 (9th Cir.1996) (individualized analysis of petitioner’s situation necessary to refute statutory presumption).
Because the BIA did not apply the presumption, it did not determine whether the presumption has been overcome. We do not apply the correct standard ourselves, ab initio, and determine on our own what the agency would have done. Remand rather than a de novo review by this court is favored in “a matter that statutes place primarily in agency hands.” INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002). We note, however, that Turina’s mother, father, sister, and brother-in-law were afforded asylum on the identical claim several months before she was denied asylum. That fact goes directly to the question of whether country conditions had indeed changed sufficiently to rebut the presumption, which, erroneously, was never applied.
For the reasons explained above, we grant the petition for review of the claims for asylum and for withholding of deportation, and remand for proceedings consistent with this disposition.
Petition GRANTED. REMANDED to the BIA for further proceedings.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. While these proceedings were pending, Turina married Zakhar Gartsman, a U.S. citizen.
. Turina’s daughter, Yanina Zakhamev, a.k.a. Yanina Turina, sought derivative asylee status through her mother’s application. When we refer to Turina in this disposition, we refer only to lead petitioner Turina unless the context suggests otherwise. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218223/ | RAWLINSON, J.,
dissenting.
Judge Rawlinson dissents for the reasons stated in the now-withdrawn memorandum filed on October 12,2001. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218224/ | MEMORANDUM *
Claimant-Appellant Jeanette Harris appeals the district court’s order upholding the Commissioner of Social Security’s denial of disability insurance benefits under Title II of the Social Security Act. Because the parties are familiar with the facts, we recite them only as necessary. We remand to the Commissioner for further proceedings before the ALJ.
A district court’s order upholding a decision of the Commissioner denying benefits *131is reviewed de novo. Aukland v. Massanari, 257 F.3d 1033, 1034 (9th Cir.2001). This Court can set aside the Commissioner’s decision only when the ALJ’s findings are either based on legal error or not supported by substantial evidence in the record as a whole. Id. at 1035. We hold that the ALJ’s determination that Harris is capable of performing sedentary work is based on a legal error, because the ALJ did not provide “specific and legitimate” reasons to reject the testimony of Harris’s treating orthopedist, Dr. Georgis.
The Commissioner argues that the ALJ properly rejected Dr. Georgis’s opinion because his diagnosis conflicted with other medical opinions. While the Commissioner is correct in noting that final responsibility for deciding the issue of disability is reserved to the Commissioner rather than the treating physician, 20 C.F.R. § 416.927, it is also well-established that when making that determination, a treating physician should be accorded more weight than a non-treating physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1996). Even in cases where the treating physician’s opinion is contradicted by another doctor, the Commissioner may not reject this opinion unless she provides “specific and legitimate” reasons which are supported by substantial evidence. Id. See also Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.2001).
The ALJ relied in large part upon the testimony of Dr. Woodward, the Commissioner’s medical expert, in rejecting Dr. Georgis’s opinion. However, Dr. Woodward was not conclusive in his testimony that Harris’s medical record did not account for the highly restrictive functional limitations which Dr. Georgis imposed on the claimant. He repeatedly remarked that he needed further information, such as from Harris’s new neurosurgeon at UCSD, before he could properly render an opinion. Given Dr. Woodward’s expressed need for more information, his testimony did not supply a sufficient basis for disregarding the opinion of the treating physician, Dr. Georgis. If the ALJ was so inclined, he should have obtained the information necessary for Dr. Woodward to provide a more authoritative opinion, rather than deciding to disregard Dr. Georgis’s opinion based on the information available at that time. See Id. (holding that an ALJ’s decision to ignore a medical expert’s recommendation for a more detailed report constituted reversible error).
The ALJ found that Dr. Georgis’s opinion contradicted his own progress notes, since he proclaimed Harris’s back surgery as successful, and found no evidence of a herniated disc, severe spinal stenosis, hardware failure or instability, but later noted that she remained disabled. It is not unusual for a patient’s symptoms to deteriorate, however, and it was Harris’s worsening symptoms that led Dr. Georgis to order a CT myelogram to be performed on March 21, 1997. Dr. Georgis’s observations were based on objective evidence and a long period of treatment, and as such, are entitled to substantial weight. See 20 C.F.R. § 416.927(d)(2)(I).
Another reason given for disregarding Dr. Georgis’s opinion was that Dr. Georgis failed to answer two questions on an SSA questionnaire related to the claimant’s “malingering.” ER 10. The ALJ explicitly assumed that Dr. Georgis omitted those answers because they would have been adverse to his patient, and then treated the inferred adverse answers as affirmative evidence supporting the decision to disregard the doctor’s expressed opinion. That approach impermissibly put words in Dr. Georgis’s mouth and was not a reasonable inference under the circumstances.
*132If the ALJ required further explanation from the treating physician to properly evaluate the medical evidence, he could have conducted an “appropriate inquiry” by subpoenaing the physician, submitting further questions to the physician, or continuing the hearing to supplement the record. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996); 20 C.F.R. § 404.1519. The ALJ did not do so here. Since there was a need for further information in this case, the medical expert’s testimony alone did not provide a “specific and legitimate” reason to disregard the contrary opinion of Dr. Georgis.
Because the ALJ may not have given adequate weight to Dr. Georgis’s medical opinion, the hypothetical posed to the vocational expert (“VE”) may not have been complete. In order to sustain the Commissioner’s burden of establishing that the claimant is capable of performing other available work in the national economy, the ALJ must accurately describe all of the claimant’s work limitations when creating a hypothetical for the VE. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). These should include any additional limitations that come to light upon reconsideration of Dr. Georgis’s opinion.
Harris’s argument that the ALJ erred in disregarding the psychological diagnosis of her treating psychotherapist, Charles Wigle, fails, since Mr. Wigle was not a medical doctor, and therefore not entitled to the deference accorded to “accepted medical source[s]” under 20 C.F.R. § 404.1513(a).
Furthermore, Harris’s argument that the ALJ erred in making a “boilerplate finding” that her impairments did not meet or equal any of the those listed in the Listing of Impairments is to no avail, even though forms completed by Mr. Wigle and Dr. Georgis indicated that she did meet specific listings. Athough a claimant may be otherwise found disabled, a mere diagnosis of a listed condition does not establish that a claimant meets the listing requirements. See Moncada v. Chater, 60 F.3d 521, 523 (9th Cir.1995).
For the reasons stated above, we conclude that the case should be returned to the Administrative Law Judge for further proceedings, including further consideration of the testimony of Harris’s treating physician, or for a statement of specific and legitimate reasons for disregarding such testimony.
The judgment of the district court is vacated and the case is remanded with further directions to remand to the commissioner.
VACATED AND REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218225/ | MEMORANDUM *
Diane and Gary Saumur (“the Saumurs”) appeal the District Court’s partial dismissal and partial summary judgment of their 42 U.S.C. § 1983 action against Appellees. The Saumurs contend that the District Court erred in concluding that a search warrant issued for their residence was supported by probable cause and that the search of their house was reasonably executed. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because the parties are familiar with the facts and procedural history of this case, they are not recited here except as necessary to explain our analysis. For the reasons set out below, we affirm.
We review a district court’s dismissal of a § 1983 action de novo. See Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir.2000). We review a district court’s grant of summary judgment in a § 1983 action by the same standard. Stone v. City of Prescott, 173 F.3d 1172, 1174 (9th Cir.1999). ‘We review de novo the district court’s conclusions that the alleged omissions in an affidavit are not material to a finding of probable cause.” Liston v. County of Riverside, 120 F.3d 965, 973 (9th Cir.1997) (citation omitted).
In order to survive a motion to dismiss, “a § 1983 plaintiff must [allege] that the [warrant affiant] ‘made deliberately false statements or recklessly disregarded the truth in the affidavit’ and that the falsifications were ‘material’ to the finding of probable cause.” Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir.2002) (quoting Hervey v. Estes, 65 F.3d 784, 790 (9th Cir.1995)); see also Liston, 120 F.3d at 973. In the instant case, the facts as alleged by the Saumurs fail to demonstrate that the affidavit would not have supported probable cause had the alleged omissions been included. The fact that the warrant affiant knew that the Saumurs had lived at the residence two years previously was not material to the probable cause determination, given that the affidavit presented extensive, specific, and current information that the target of the search had recently moved to the residence and was dealing drugs there. Similarly, the Saumurs’ contention that the affiant had a duty to inform the magistrate that he had not re*134viewed telephone, utility, or motor vehicle records fails because the affidavit supported probable cause that the suspect was currently residing at the residence regardless of whose name appeared on the utility bills. Because the Saumurs alleged no facts in their complaint to demonstrate that “had the ommitted facts ... been included the magistrate would not [ ] have issued the warrant without more,” id. at 974, we affirm the District Court’s holding that the warrant was supported by probable cause.
In order to sustain their claim against the officers who executed the warrant, the Saumurs must show that, viewing the facts .as alleged “in the light most favorable to the plaintiffs, ... the officers’ conduct violated a constitutional right.” Ganwich v. Knapp, 319 F.3d 1115, 1119 (9th Cir.2003) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Because the warrant in this case was supported by probable cause, the officers’ conduct in this case did not violate any constitutional right. See United States v. Vesikuru, 314 F.3d 1116, 1124 (9th Cir.2002). The officers who executed the warrant were therefore entitled to qualified immunity. Although the District Court did not rest its summary judgment decision on this ground, we believe that this analysis is sufficient to decide this aspect of the case. See Saucier, 533 U.S. at 201 (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”); see also Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d 1406, 1420 (9th Cir.1996) (“we may affirm a grant of summary judgment on any ground adequately supported in the record.”).
The decision of the District Court is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218511/ | ORDER DISMISSING CASE
SUSAN G. BRADEN, Judge
On September 16, 2014, the United States Court of Appeals for the Federal Circuit issued an opinion vacating the Order on jurisdiction in the above-captioned case and remanding for dismissal. See SRA Int'l, Inc. v. United States, 766 F.3d 1409, 1414 (Fed.Cir.2014) (“Accordingly, we vacate the order on jurisdiction and remand with instructions to dismiss the case for lack of jurisdiction.”).
On November 13, 2014, the United States Court of Appeals for the Federal Circuit issued a Mandate instructing this court to dismiss the case.
Pursuant to the United States Court of Appeals for the Federal Circuit’s November 13, 2014 Mandate, the court’s February 3, 2014 Order is vacated. The Clerk of Court is directed to dismiss the case for lack of jurisdiction.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218512/ | Dispute over allowance of deferred compensation costs claimed under a cost-plus-fixed-fee contract; jurisdiction; privity of contract; third-party beneficiary of a contract; constitutional and civil rights claims
OPINION AND ORDER
LETTOW, Judge.
This case arises from the same events as another case currently pending in this court, Quimba Software, Inc. v. United States, 120 Fed.Cl. 107 (2015). In that case, Quimba Software, Inc. (“Quimba Software” or “Quimba”) brought a claim regarding deferred *469compensation costs that were disallowed by an Administrative Contracting Officer in connection with a eost-plus-fixed-fee contract with the Air Force Research Laboratory, Air Force Material Command. Id., at 109. The Administrative Contracting Officer considered that deferred compensation costs were not allowable under a provision of the Federal Acquisition Regulation then in effect, 48 C.F.R. (“FAR”) § 31.205-6(b)(2)(i) (2002). See Quimba Software, 120 Fed.Cl. at 110.1 The deferred compensation costs pertained to Quimba Software’s founders and owners. Id. at 107. Plaintiff, Robert Dourandish, is a co-founder of Quimba Software and has brought this separate action as an individual, also challenging the government’s disallowance of the deferred compensation that Quimba Software included in its costs for 2004. See Compl. Pending before the court is the government’s motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). See Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 1.
BACKGROUND2
On July 10, 2003, Quimba Software entered into a Cost-Plus-Fixed-Fee contract, number F30602-03-C-0185, with the Air Force Research Laboratory, Air Force Material Command for research in Metaseareh Fusion Software. Compl. ¶ 4; A 1-17 (Contract No. F30602-03-C-0185 (July 10, 2003)).3 Quimba Software had previously performed similar research under a Small Business Innovation Research (“SBIR”) award and the Contract reflected a modification of Quimba Software’s former SBIR proposal. Compl. ¶¶4-6. The total estimated contract value was $199,950. Compl. ¶ 6. The contract provided that Quimba Software would submit invoices or vouchers “to the cognizant Defense Contract Audit Agency (‘DCAA’) office.” A 10. The government would then “make payments to the [cjontractor [when requested as work progresses] ... in amounts determined to be allowable by the Contracting Officer in accordance with [FAR] subpart 31.2 in effect on the date of this contract and the terms of this contract.” Def.’s Mot. at 3 (citing A12).4
At the outset of the contract, Quimba Software did not have DCAA-approved indirect cost rates or a DCAA-approved cost accounting system, circumstances that Quimba disclosed to the Air Force Research Laboratory’s Contracting Officer. Compl. ¶ 8. During a review by DCAA, Quimba Software proposed a $75 per hour rate for the technical staff. Compl. ¶ 9. The DCAA did not object and the contract was awarded to Quimba Software conditional on Quimba’s working to remedy deficiencies that had been noted by DCAA. Compl. ¶¶ 9,13.
*470On February 3, 2004, a DCAA’s assigned audit supervisor informed Quimba Software by e-mail that Quimba would not be paid for its work until its indirect rates were approved by DCAA, which required an accounting system deemed “adequate” by DCAA. Compl. ¶ 14. Quimba accordingly modified its accounting system to comply with DCAA’s recommendations, enlisting the aid of an accounting firm in Colorado with experience in working with DCAA. Compl. ¶ 15. The revisions were completed, and in February 2004, DCAA approved a payment to Quimba in the amount of $30,321.77 for costs incurred in 2003, after which Quimba submitted a voucher and filed its indirect-rate proposal to trigger a follow-on audit. Compl. ¶¶ 16-17. During the audit, the auditor asserted that deferred salaries were not allowable under the cost accounting standards. Compl. ¶ 19. Quimba Software disagreed, taking the position that applicable FAR clauses allowed Quimba to include deferred salaries as a component of its cost calculations. See Compl. ¶¶ 19, 35-38.
For the remainder of 2004, Quimba Software remained in ongoing discussions with various DCAA auditors and audit supervisors regarding its deferral of its founders’ salaries due to a lack of funds to pay them. See Compl. ¶¶ 25-92. Throughout this period, Quimba continued performance on the contract and worked with its consultants to resolve deficiencies. Compl. ¶¶ 41, 48. In September 2004, DCAA completed a third audit of tjuimba and again contended that the deferred salaries were unallowable. Compl. ¶¶ 30-31. After several conversations with multiple DCAA auditors, on October 9, 2004, Mr. Dourandish on behalf of Quimba Software wrote a letter to DCAA outlining his position. Compl. ¶¶ 35-38. On October 21, 2004, the auditor notified Quimba that an audit supervisor would be taking over the matter, and on November 6, 2004, the DCAA audit supervisor began discussions with Quimba and its accounting consultants and ultimately approved Quimba’s indirect rates on November 24, 2004, including its deferred compensation. Compl. ¶¶ 39-42.
Subsequently, Quimba Software’s case was re-assigned to the previous auditor. Compl. ¶ 44. On January 26, 2005, the auditor presented Quimba with a draft audit report for comment, again raising the issue of the deferred salaries as unallowable. Compl. ¶ 47. After Quimba requested the involvement of the Administrative Contracting Officer (“ACO”), an official of the Defense Contract Management Agency (“DCMA”), on February 8, 2005, Quimba’s case was reassigned to a different auditor. Compl. ¶¶ 49-51. On February 9, 2005, at the ACO’s request, the DCAA initiated a Risk Review of Quimba Software on the basis that Quimba’s founders were ^not paying” themselves. Compl. ¶ 52. A series of e-mail and telephone exchanges ensued, resulting in a hold of the Risk Review at the ACO’s request on February 28, 2005.Compl. ¶¶ 53-56.
Quimba Software completed performance of the contract in March 2005. Compl. ¶ 57. On March 17, 2005, DCAA found Quimba’s accounting systems to be adequate without restrictions. Compl. ¶ 59. Quimba then submitted vouchers for all of the work it had performed. Compl. ¶ 61. On April 11, 2005, a DCAA audit supervisor informed Mr. Dou-randish that she had received and approved Quimba’s vouchers, and they were paid in 2005. Compl, ¶¶ 62-63. On May 31, 2005, Quimba submitted an interim-rates proposal to DCAA for 2005, which included all of the deferred costs, and the proposal was approved by DCAA on June 24, 2005. Compl. ¶¶ 64-66.
In May 2007, the government initiated an audit of Quimba Software’s fiscal year (“FY”) 2004 incurred-cost proposal. Compl. at 1, ¶ 67. The same assigned auditor who had been removed twice before deemed all salaries earned by Quimba co-founders during FY 2004 to be unallowable in a draft audit report delivered to Quimba on July 17, 2007 and requested a response from Quimba by the following business day. Compl. at 1-2, ¶ 70. Mr. Dourandish contacted the DCAA audit supervisor to request additional time but his request was denied, and DCAA forwarded the final audit report to DCMA for action. Compl. ¶¶ 71-72.
In November 2008, a new ACO assigned to the case contacted Quimba Software to request a response to the DCAA report. *471Compl. ¶ 73. After a series of communications, on March 4, 2011, the ACO issued a Contracting Officer’s Final Decision formally upholding the auditor’s recommendations disallowing Quimba’s 2004 deferred salaries, Compl. ¶ 74. The ACO’s Final Decision claimed that Quimba owed the federal government $91,992.77 and informed Quimba that it had the option of requesting a debt deferral. Compl. ¶¶ 75-77. Quimba did not request a deferral, reasoning that “it assumed that the ACO [would] ... investigate and then correct his own error once informed of the error.” Compl. ¶ 78.
On Mai’ch 7, 2011, the Defense Financing and Accounting Service issued Bill of Collection 11066130630C1 in response to the ACO’s Final Decision, and on June 3, 2011, it sent an e-mail demanding payment for the levied debt. Compl. ¶¶ 79-80. Quimba responded by letter on June 10, 2011, disputing the validity of the debt. Compl. ¶ 82. In the following months, Quimba communicated with the Defense Financing and Accounting Service and attempted to resolve the dispute, without success. Compl. ¶¶ 82-92.
On March 1, 2012, Quimba Software filed its suit in this court, No. 12-142C, currently pending before Judge Williams. See Quimba Software, 120 Fed.Cl. at 110-11. Quimba secondarily filed a complaint with the Small Business Administration in August 2012. Compl. ¶ 94. On October 3, 2014, Mr. Dou-randish separately filed the instant suit. In his complaint, he alleges that “[t]he [government breached its contract with Quimba when it failed to permit the company to invoice ... the direct rates the [g]overnment had negotiated[] while the company’s accounting systems and methods were being reviewed” and when it “disallowed the salaries the founders had deferred during FY 2004.” Compl. ¶¶ 101-102. Mr. Dourandish maintains that the ACO was “grossly negligent” in its review of the auditor’s recommendation. Compl. at 2. In particular, Mr. Dourandish emphasizes that the ACO upheld the auditor’s decision rather than remanding for further review even though the auditor’s “native language is not English,” resulting in his confusion between the words “deductible” and “deducted,” and the auditor applied the wrong version of the applicable FAR. Compl. at 2. He suggests that the gross negligence was the result of the government “knowingly foster[ing] a set of practices that encourage [government employees to protect other [g]overnment' employees” in order to reap “organizational and personal gains.” Compl. ¶¶ 103, 107. Additionally, Mr. Dourandish avers that the government’s refusal to correct the errors, and its actions to move the litigation forward violated his due process rights under the Fourteenth Amendment of the United States Constitution, see Pl.’s Resp. to Government’s Mot. to Dismiss (“PL’s Opp’n”) at 13, ECF No. 9, and his rights codified under the “Civil Rights Act,” by “unjustly interfering with his ability to seek federal contracts,” Compl. ¶ 109. He claims that as a direct result, his “source of livelihood[ ] has become defunct” and he has suffered “total loss of any appreciation in Quimba’s market valuation[ ] and total loss of the prospect of a meaningful exit ... [from his] decade of effort he devoted to building Quimba.” Pl.’s Opp’n at 4-5. In terms of relief, Mr. Dourandish requests “five million dollars in direct, consequential, and punitive damages” in addition to “costs and any other relief the [c]ourt deems appropriate.” Compl. at 15.
Following the submission of the government’s motion and Mr. Dourandish’s response, the case is ready for disposition.
STANDARDS FOR DECISION
“[A] court must satisfy itself that it has jurisdiction to hear and decide a case before proceeding to the merits.” Hardie v. United States, 367 F.3d 1288, 1290 (Fed.Cir.2004) (quoting PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed.Cir.2002)) (internal quotation marks omitted). When evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the court will “normally consider the facts alleged in the complaint to be true and correct.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). It is the plaintiffs burden to “allege in his pleading the facts essential to show [subject mat*472ter] jurisdiction” by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Reynolds, 846 F.2d at 748.
As part of its inquiry into subject matter jurisdiction, a court must determine whether a plaintiff has standing to sue. See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed.Cir.2006); see also Myers Investigative and Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed.Cir.2002) (“[Standing is a threshold jurisdictional issue.”). The standing requirements applied by this court are the same as those pertaining to federal district courts. See Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed.Cir.2009) (citing Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed.Cir.2003)). To establish standing, a party seeking to invoke federal court jurisdiction must demonstrate: (1) an actual or imminent “injury in fact” that is concrete and particularized; (2) a causal connection between the injury and the challenged action of the defendant, as opposed to that of an independent third party; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).
Mr. Dourandish invokes the Tucker Act, 28 U.S.C. 1491(a), as the basis for this court’s jurisdiction over his claims. Compl. ¶ 3. The Tucker Act confers jurisdiction on this court to “render judgment upon 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 waives sovereign immunity, authorizing a claimant to sue the United States for monetary damages. United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the Tucker Act alone does not provide a substantive right to monetary relief against the United States. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); see also Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed.Cir.2003) (en banc). “A substantive right must be found in some other source of law.” Mitchell, 463 U.S. at 216, 103 S.Ct. 2961. To invoke jurisdiction under the Tucker Act, the plaintiff must establish an independent right to monetary damages by identifying a substantive source of law that mandates payment from the federal government for the injury suffered. Testan, 424 U.S. at 400, 96 S.Ct. 948; see also Ferreiro v. United States, 501 F.3d 1349, 1351-52 (Fed.Cir.2007) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)).
ANALYSIS
The government has questioned this court’s juridical power to adjudicate Mr. Dourandish’s claims. It first challenges the allegations in Mr. Dourandish’s complaint respecting the existence of a contract between him and the United States. “To maintain a cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between the plaintiff and the government,” Ransom v. United States, 900 F.2d 242, 244 (Fed.Cir.1990), or the plaintiff must otherwise “be in privity of contract with the United States,” Anderson v. United States, 344 F.3d 1343, 1351 (Fed.Cir.2003) (citing Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed.Cir.1984) (“The government consents to be sued only by those with whom it has privity of contract .... ”)); see also First Annapolis Bancorp, Inc. v. United States, 644 F.3d 1367, 1373 (Fed.Cir.2011). Mr. Dourandish’s claims derive from the purported breach of the government’s contract with Quimba; he has identified no express or implied contract between the United States and him as an individual. See Compl. ¶¶ 101-102.5
*473Mr. Dourandish nonetheless maintains that he qualifies as a third-party intended beneficiary because “the [g]overnment intended for [him] to directly benefit from the contract the [g]overnment entered with the company [he] eo-founded and co-owned.” Pl.’s Opp’n at 5. Third-party beneficiary status, however, is an “exceptional” circumstance, see Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001), opinion amended in other respects on reh’g, 273 F.3d 1072 (Fed.Cir.2001), and to prove that status exists, “a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly, ” Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1259 (Fed.Cir.2005) (quoting Glass, 258 F.3d at 1354) (emphasis added). Specifically, to make a shareholder a third-party beneficiary, “the contract must express the intent of the promissor to benefit the shareholder personally, independently of his or her status as a shareholder.” Anderson, 344 F.3d at 1352 (quoting Glass, 258 F.3d at 1353-54) (emphasis in original). In this instance, there is no evidence in the contract between the government and Quim-ba that indicates that the government intended to benefit Mr. Dourandish personally. The contract outlines an agreement obliging the government to pay Quimba Software for work performed. See A 1-17 (Contract No. F30602-03-C-0185 (July 10, 2003)). Beyond the signature line, it makes no reference whatsoever to Mr. Dourandish. See id. Accordingly, any benefit Mr. Dou-randish derived under the contract'based on his ownership interest in Quimba Software or his salary earned from Quimba for work performed on the project was indirect and not independent of his status as the co-founder, employee, and shareholder of Quimba. See Def.’s Mot. at 7. In sum, because Mr. Dourandish does not qualify as a third-party beneficiary under the contract, he lacks standing to pursue his contract claims. See, e.g., Anderson, 344 F.3d at 1352 (“Without either direct privity or third-party beneficiary status, the [plaintiffs] lack standing to sue the government.”); Glass, 258 F.3d at 1354; Schuerman v. United States, 30 Fed.Cl. 420, 433 (1994) (“The court carefully must distinguish between incidental and indirect beneficiaries and direct beneficiaries, only the latter of which qualify for third-party beneficiary status.”),
Mr. Dourandish additionally alleges constitutional claims that he avers fall within the court’s jurisdiction under the Tucker Act. First, Mr. Dourandish claims that the government violated his due process rights under the Fourteenth Amendment when it “knowingly refused to rescind an erroneous levy.” Pl.’s Opp’n at 13 (emphasis in original). This claim does not fall within the court’s jurisdiction because it does not rest on a money-mandating source. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.Cir.1995) (noting that the Fourteenth Amendment does not mandate the payment of money); see also Miller v. United States, 67 Fed.Cl. 195, 199 (2005) (“Although this court may exercise jurisdiction over claims ‘founded ... upon the Constitution,’ the scope of this court’s jurisdiction over constitutional claims is limited to claims arising under provisions of the Constitution that mandate the payment of money.”) (citing 28 U.S.C. § 1491(a)(1)).
Alternatively, Mr. Dourandish raises a claim premised on the Fifth Amendment based on an illegal-exaction theory. See Pl.’s Opp’n at 16. An illegal exaction generally involves money that was “improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.” Norman v. United States, 429 F.3d 1081, 1095 (Fed.Cir.2005) (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007 (1967)); see also Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573 (Fed.Cir.1996) (“[A]n illegal exaction has occurred when ‘the [g]overn*474ment has the citizen’s money in its pocket.’”) (quoting Clapp v. United States, 117 F.Supp. 576, 580 (Ct.Cl.1954)). “The Tucker Act provides jurisdiction to recover an illegal exaction by government officials when the exaction is based on an asserted statutory power.” Aerolineas Argentinas, 77 F.3d at 1573. The statute or provision resulting in the exaction must also provide “either expressly or by ‘necessary implication’ that ‘the remedy for its violation entails a return of money unlawfully exacted.’ ” Norman, 429 F.3d at 1095 (quoting Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373 (Fed.Cir.2000)). Here, Mr. Dourandish’s claims do not derive from the government’s exercise of an “asserted statutory power” but rather the government’s claim of a debt owed under a contract. Aerolineas Argentinas, 77 F.3d at 1573. Therefore Mr. Dourandish’s claims based on an alleged illegal exaction do not fall within the court’s jurisdiction pursuant to the Tucker Act.
Finally, Mr. Dourandish posits statutory claims by contending that the government violated the Civil Rights Act by “unjustly interfering with his ability to seek federal contracts.” Compl. ¶ 109. However, Mr. Dourandish’s claims of purported civil rights violations essentially amount to contract claims, including claims for consequential damages, addressed supra. See Pl.’s Opp’n at 18 (“[T]he issue, which is likely framed poorly as a [c]ivil [r]ights claim ... is equally valid if framed as an [¡Interference with a [e]ontraet claim.”). Even if Mr. Dou-randish were to articulate an appropriate civil rights claim, such a claim would not be properly before the court because this court may not adjudicate claims alleging civil rights violations. See 28 U.S.C. § 1343(a)(4) (“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person ... [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”); Taylor v. United States, 80 Fed.Cl. 376, 381 (2008), aff'd, 310 Fed.Appx. 390 (Fed.Cir.2009) (“Congress never intended for the United States Court of Federal Claims to have jurisdiction over claims brought under Title VII.”); see also Cottrell v. United States, 42 Fed.Cl. 144, 149 (1998) (“As courts have repeatedly held, there is no Tucker Act jurisdiction in the Court of Federal Claims to entertain claims involving race, sex, and age discrimination or other claims involving civil rights violations.”).
In sum, Mr. Dourandish has not stated a claim within the jurisdiction of this court.
CONCLUSION
For the reasons stated, the government’s motion to dismiss is GRANTED, and Mr. Dourandish’s complaint is dismissed pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction. The clerk shall enter judgment in accord with this disposition.
No costs.
It is so ORDERED.
.The regulation that was in effect at the time of the initiation of Quimba Software’s' contract stated:
For closely held corporations, compensation costs covered by this subdivision shall not be recognized in amounts exceeding those costs that are deductible as compensation under the Internal Revenue Code and regulations under it.
FAR § 31.205 — 6(b)(2)(i) (2002). An auditor had instead cited a provision that was in effect the following year, which provided:
For owners of closely held companies, compensation in excess of the costs that are deductible as compensation under the Internal Revenue Code (26 U.S.C.) and regulations under it is unallowable.
FAR § 31.205 — 6(a)(6)(iii) (2003). See Quimba Software, 120 Fed.Cl. at 110.
Quimba Software did not pay wages to its two co-owners, one of whom was Mr. Dourandish, between January 1, 2004, and December 31, 2004, but rather deferred payment until it received adequate funds. Compl. at 1. Mr. Dou-randish avers that the government did not allow Quimba Software to submit any vouchers during 2004, because the government had not approved the company's accounting systems. Id.; see also Quimba Software, 120 Fed.Cl. at 110. Thus, Quimba Software did not pay its co-founders in 2004 for their work during that year.
. This recitation of background information is taken from the complaint and the parties’ submissions on the government’s motion and does not constitute findings of fact.
. Attachments to the government’s motion were paginated consecutively and shall be denoted as follows: "A_”
. FAR Subpart 31.2 governs "Contracts with Commercial Organizations.” The payments to Quimba would be made pursuant to FAR § 52.216-07, relating to "Allowable Cost and Payment,” which provision was incorporated in the contact by reference. A 12.
. Mr. Dourandish signed Quimba Software’s contract with the government, but he did so not in his individual capacity but rather on behalf of Quimba. See A 1. "[A] corporation is generally considered to be a separate legal entity from its shareholder.” Southern Cal. Fed. Sav. & Loan Ass’n. v. United States, 422 F.3d 1319, 1331 (Fed.Cir.2005). Accordingly, a shareholder typically lacks standing to assert a breach of contract claim on behalf of the corporation, regardless of *473his role in the negotiation process or in funding a transaction. First Annapolis, 644 F.3d at 1373 (citing Federal Deposit Ins. Corp. v. United States, 342 F.3d 1313, 1319 (Fed.Cir.2003)); see also Southern Cal. Fed. Sav., 422 F.3d at 1332; cf. Home Sav. of Am. v. United States, 399 F.3d 1341 (Fed.Cir.2005) (recognizing narrow exceptions to the general rule that shareholders lack standing to bring claims on behalf of a corporation and concluding that a holding company had standing to sue the government where reciprocal promises were part of an original bargain). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218513/ | Pro Se Plaintiff; In Forma Plaintiff, Pauperis Application; Lack of Subject Matter Jurisdiction. ORDER
HORN, J.
FINDINGS OF FACT
On February 25, 2015, pro se plaintiff, James Edwin Barnard, filed a one page and four line letter/complaint in the United States Court of Federal Claims,1 which was directed to “Officers of Special Masters Office,” and was dated February 16, 2015. The letter begins and ends with “Peace be with you.” The letter is very difficult to follow and, often, less than comprehensible. In the letter, plaintiff claims:
As witnessed on the enclosed orders to a competent court of jurisdiction my Status as Man, Landlord, one of the people, grantor of the benefice and fee, Trinity of mind body and soul, Tribunal of the court of record of final jurisdiction of my sovereign nation state has been recognized by the ancient office of Notary Public.2
Plaintiff then asks that:
the Chief Special Master appoint a Special Master as my representative to investigate the whereabouts of the inheritance left me by my Father and ancestors, and the Kings Revenue currently held in reserve until I, the proper owner appear. For the record, I have appeared, have been searching unsuccessfully myself, all the while being subjected to the disturbance of my peace from any number of lifeless entities.
Plaintiff seeks “assistance, and positive action in recovering my property, setting off the debts of my ancestors and myself, and make available to me this Kings Revenue in a form accepted by all other nations.” Included in his demands, he states: “I am reclaiming dominion over all the earth that Adam & Eve forfeited when they disobeyed Our Creator.” Moreover, he demands that “all lifeless entities, and men who by their own free will consent to being of lower status are to immediately stop disturbing my peace, and trespass against this Superior Sovereign.”
Enclosed with his letter/complaint, plaintiff attaches a copy of his birth certificate, a “Notice of Mistake and Request for Correction,” and an “AFFIDAVIT NOUICOR.” (Apparently, “Notice of Understanding and Intent and Claim of Right”).3 Plaintiffs “AFFIDAVIT NOUICOR” is addressed to “All Public Officials Listed on pgs. 2 & 3 below,” which includes a variety of federal and state officials, and states:
Claimant/Grantor does herein order all de facto agencies of the UNITED STATES *701government and all related and subordinate agencies to disclose the True and Complete Facts and Details of all monetary, currency, and negotiable instrument investments pertaining to the accounts of Grantor that are being, or have been, withheld from ready access by Grantor to be released immediately to Grantor, and avoid Fraud and Deception, as per: Concealing a material fact when there is duty to disclose may be actionable fraud. Universal Inv. Co. v. Sahara Motor Inn, Inc., 619 P.2d 485, 127 Ariz. 213 (Ariz.App.1980)
In his “AFFIDAVIT NOUICOR,” plaintiff seems to claim an “inheritance,” to withheld land, and that “any Certificates of Birth entered into the fictional corporate world of commerce is based on fraud.... ” In plaintiffs “Notice of Mistake and Request for Correction,” he claims all funds, land, and property associated with various private entities, social security numbers, court cases, marriage license numbers, driver’s license numbers, and bank and credit card accounts.
On March 27, 2015, plaintiff also submitted a package of numerous unrelated documents,4 asserting jurisdiction in this court and a right to summary judgment in his favor. These documents are also difficult to follow and contain further rambling, incomprehensible allegations and claims. Plaintiffs attached documents include, for example:
1. Notice for Presiding Judge To Take Judicial Notice.
2. Complaint in the form of a conditional summary judgment document concerning plaintiffs tax liability.
3. Notice to Recorder’s Office referencing plaintiffs alleged property.
4. Various documents regarding plaintiffs tax liability.
5. Court filings referencing a case in Texas State Court.
6. Various federal court documents in earlier eases.
7. Mail referencing a -notice of levy received by plaintiff from an IRS agent.
8. Numerous pages of copies of penal code sections.
9. A petition and complaint in a suit for “DEPRIVATION OF FEDERALLY PROTECTED RIGHTS” in violation of the Texas Penal Code.
10. A document titled “WHY I OWE NO TAXES.”
11. Various mailing certificates.
DISCUSSION
The court recognizes that Mr. Barnard filed his documents pro se, without the benefit of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed.Cir.2014); Diamond v. United States, 115 Fed.Cl. 516, 524 (2014), aff'd, 603 Fed.Appx. 947, 2015 WL 527500 (Fed.Cir. Feb. 10, 2015), petition for cert. filed (U.S. Mar. 23, 2015). “However, “ ‘[tjhere is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.” ’ ” Lengen v. United States, 100 Fed.Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975))); see also Bussie v. United States, 96 Fed.Cl. 89, 94, aff'd, 443 Fed.Appx. 542 (Fed.Cir.2011); Minehan v. United States, 75 Fed.Cl. 249, 253 (2007). “While a pro se plaintiff is held to' a less stringent standard than that of a plaintiff *702represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States, 93 Fed.Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9, 101 S.Ct. 173 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.”), reh’g and reh’g en banc denied (Fed.Cir.2002)); see also Shelkofsky v. United States, 119 Fed.Cl. 133, 139 (2014) (“[Wjhile the court may excuse ambiguities in a pro se plaintiffs complaint, the court ‘does not excuse [a complaint’s] failures.’ ” (quoting Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995))); Harris v. United States, 113 Fed.Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less stringent standard, such leniency ‘with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.’ ” (quoting Minehan v. United States, 75 Fed.Cl. at 253)).
It is well established that “‘subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices. Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed.Cir.2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a ease.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed.Cir.1990))); View Eng’g. Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not ”). “The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; see also Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n. 1 (Fed.Cir.2012) (“An objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed.Cir.2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.). reh’g and reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed.Cir.2011). In fact, “[s]ubjeet matter jurisdiction is an inquiry that this court must raise sua sponte, even where ... neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal-Claims sh'all have jurisdiction to render *703judgment upon 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) (2012). As interpreted by the United States Supreme Court, the Tucker^ Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007). cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States_” United States v. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed.Cir.), cert. denied, - U.S. -, 134 S.Ct. 259, 187 L.Ed.2d 262 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343 (“[Pjlaintiff must ... identify a substantive source of law that creates the right to recovery of money damages against the United States.”). In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver.... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States, 178 Ct.Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [ (1967) ] (describing illegal exaction claims as claims “in which-‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 580 (1954))).... Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Id.; see also [United States v.] Testan, 424 U.S. [392,] 401-02 [96 S.Ct. 948, 47 L.Ed.2d 114 (1976)] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim — whether it be the Constitution, a statute, or a regulation— does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money-mandating” statute.
Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed.Cir.2004); see also Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, “the statute and regulations must be such that they ‘“can *704fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” ’ ” Roberts v. United States, 745 F.3d 1158, 1162 (Fed.Cir.2014) (quoting United States v. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126 (quoting United States v. Testan, 424 U.S. at 400, 96 S.Ct. 948)); see also United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547; United States v. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126; United States v. Mitchell, 463 U.S. at 217, 103 S.Ct. 2961; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.Cir.2008), cert. denied, 555 U.S. 1153, 129 S.Ct. 1038, 173 L.Ed.2d 468 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).”). “ ‘if the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.’ ” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed.Cir.2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Peoples v. United States, 87 Fed.Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)))); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed.Cir.2006); Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed.Cir.2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003).
As noted above, plaintiffs letter/complaint is extremely difficult to follow. It appears plaintiff is seeking assistance from the United States to locate his inheritance, as well as funds and property from various public and private entities, and accounts. Plaintiff, however, has not asserted a claim for money damages against the United States. All claims filed in the United States Court of Federal Claims must be filed against the United States as the defendant. See Rules of the United States Court of Federal Claims (RCFC) 10(a) (2014); see also 28 U.S.C. § 1491(a); United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citation omitted) (“[l]f the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court.” (citation omitted)); Slattery v. United States, 635 F.3d 1298, 1321 n. 1 (Fed.Cir.2011), aff'd 710 F.3d 1336 (Fed.Cir.2013). cert. denied, — U.S. —, 134 S.Ct. 1276, 188 L.Ed.2d 297 (2014); May v. United States, 80 Fed.Cl. 442, 444 (“Jurisdiction, then, is limited to suits against the United States.”), aff'd, 293 Fed.Appx. 775 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2008): Eskridge Research Corp. v. United States, 92 Fed.Cl. 88, 95 (2010) (citing Howard v. United States, 230 Fed.Appx. 975, 976 (Fed.Cir.) (“The United States is the only proper defendant before *705the Court of Federal Claims.”), reh’g denied (Fed.Cir.2007)); Shalhoub v. United States, 75 Fed.Cl. 584, 585 (2007) (“When a plaintiffs complaint names private parties, or state agencies, rather than federal agencies, this court has no jurisdiction to hear those allegations.”); Stephenson v. United States, 58 Fed.Cl. 186, 190 (2003) (“[T]he only proper defendant for any matter before this court is the United States, not its officers, nor any other individual.”) (emphasis in original). Neither the complaint or the March 27, 2015 filing even list the United States as the defendant or assert any facts which allege a claim for money damages against the United States. Accordingly, Mr. Barnard has not demonstrated that this court has jurisdiction to consider his claims.
This court also does not have jurisdiction to review claims that sound in tort. See 28 U.S.C. § 1491(a) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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 eases not sounding in tort.”); see also Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Ride’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343; Alves v. United States, 133 F.3d 1454, 1459 (Fed.Cir.1998); Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.), reh’g denied (Fed.Cir.1997); Golden Pac. Bancorp v. United States, 15 F.3d 1066, 1070 n. 8 (Fed.Cir.), reh’g denied, en banc suggestion declined (Fed.Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994); Hampel v. United States, 97 Fed.Cl. 235, 238, aff'd, 429 Fed.Appx. 995 (Fed.Cir.2011), cert. denied, — U.S. —, 132 S.Ct. 1105, 181 L.Ed.2d 973 (2012); Woodson v. United States, 89 Fed.Cl. 640, 650 (2009); McCullough v. United States, 76 Fed.Cl. 1, 3 (2006), appeal dismissed, 236 Fed.Appx. 615 (Fed.Cir.), reh’g denied (Fed.Cir.), cert. denied, 552 U.S. 1050, 128 S.Ct. 675, 169 L.Ed.2d 529 (2007); Agee v. United States, 72 Fed.Cl. 284, 290 (2006); Zhengxing v. United States, 71 Fed.Cl. 732, 739, aff'd, 204 Fed.Appx. 885 (Fed.Cir.), reh’g denied (Fed.Cir.2006). Therefore, plaintiffs request that the court order “all lifeless entities, and men” to cease disturbing his peace, and trespass against “this Superior Sovereign,” even if comprehensible, would not be within the jurisdiction of this court.
Although also not in his letter/complaint, plaintiff alleges in his AFFIDAVIT NOUICOR, and several of the other documents submitted, that he wants any “potentially criminal actions of any peace officers, government principals or agents or justice system participants” addressed. To the extent that plaintiff is alleging criminal conduct as the basis for his claims, this court also lacks jurisdiction to adjudicate those claims. See Joshua v. United States, 17 F.3d 378, 379 (Fed.Cir.1994); see also Cooper v. United States, 104 Fed.Cl. 306, 312 (2012) (holding that “this court does not have jurisdiction over his claims because the court may review neither criminal matters, nor the decisions of district courts.”) (internal citations omitted); Mendes v. United States, 88 Fed.Cl. 759, 762 (2009), appeal dismissed, 375 Fed.Appx. 4 (Fed.Cir.2009); Hufford v. United States, 87 Fed.Cl. 696, 702 (2009) (holding that the United States Court of Federal Claims lacked jurisdiction over claims arising from the violation of a criminal statute); Matthews v. United States, 72 Fed.Cl. 274, 282 (finding that the court lacked jurisdiction to consider plaintiffs criminal claims), recons, denied, 73 Fed.Cl. 524 (2006); McCullough v. United States, 76 Fed.Cl. 1, 4 (2006) (finding that the ■ court lacked jurisdiction to consider plaintiffs criminal claims), appeal dismissed, 236 Fed.Appx. 615 (Fed.Cir.), reh’g denied (Fed. Cir.), cert. denied, 552 U.S. 1050, 128 S.Ct. 675, 169 L.Ed.2d 529 (2007).
Along with his pro se complaint, plaintiff submitted a March 13, 2015 “Application to Proceed In Forma Pauperis.” asserting that he is unable to pay the required filing fees, and requesting waiver of court costs and fees. His Application indicates that he is unemployed, and that his last date of employment was January 22, 2008, a position for which he was receiving $476.00 per month. He also indicates that his only other *706source of income in the past twelve months was Social Security, under which he earned $10,393.80. In his Application, plaintiff asserts that he does not own any real estate, stocks, bonds, notes, automobiles or other valuable property, but that he has $1,366.65 in cash, or in a bank account. In order to provide access to this court to those who cannot pay the filing fees mandated by RCFC 77.1(e) (2014), the statute at 28 U.S.C. § 1915 (2012) permits a court to allow plaintiffs to file a complaint without payment of fees or security, under specific circumstances. The standard in 28 U.S.C. § 1915(a)(1) for informa pauperis eligibility is “unable to pay such fees or give security therefor.” Determination of what constitutes “unable to pay” or unable to “give security therefor,” and, therefore, whether to allow a plaintiff to proceed in forma pauperis is left to the discretion of the presiding judge, based on the information submitted by the plaintiff or plaintiffs. See, e.g., Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 217-18, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); Roberson v. United States, 115 Fed.Cl. 234, 239 (2014); Fuentes v. United States, 100 Fed.Cl. 85, 92 (2011). In Fiebelkorn v. United States, the United States Court of Federal Claims indicated:
[T]he threshold for a motion to proceed in forma pauperis is not high: The statute requires that the applicant be “unable to pay such fees.” 28 U.S.C. § 1915(a)(1). To be “unable to pay such fees” means that paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute,
Fiebelkorn v. United States, 77 Fed.Cl. 59, 62 (2007); see also Brown v. United States, 76 Fed.Cl. 762, 763 (2007). Even if Mr. Barnard’s income level qualifies him for informa pauperis status, however, as discussed above, his complaint is being dismissed for lack of jurisdiction.
CONCLUSION
For the foregoing reasons, plaintiffs complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.
. It is questionable whether the Clerk’s Office should have filed Mr. Barnard’s submission as a complaint under the minimum standards for filing a complaint pursuant to the Rules of the United States Court of Federal Claims. Nonetheless, once filed, the court reviews and considers it fully.
. Capitalization, grammar, and punctuation errors are quoted in this Order as they appear in plaintiff’s submissions.
. 3 The "Notice of Mistake and Request for Correction” and "AFFIDAVIT NOUICOR” refer to Docket # 874049, a civil case titled Americredit Fin. Sen’s. v. Barnard James E„ which was filed on September 19, 2006, in the County Court of Harris County, Texas. See Americredit Fin. Serv’s, v. Barnard James E. No. 874049 (Tex. Co. Ct. filed Sept. 19, 2006). In addition to the state court case, it appears Mr. Barnard has filed at least four additional cases in the United States District Court for the Southern District of Texas, but was unsuccessful in each case. See Barnard v. Howard et al., No. 4:07-MC-00238 (S.D.Tex. Apr. 25, 2007); Barnard v. Berce et al., No. 4:06-CV-03415 (S.D. Tex. Mar. 26, 2007); Barnard v. Kovacevich et al., No. 4:06-CV-03416 (S.D.Tex. Feb. 12, 2007); Barnard v. Americredit, Inc., No. 4:06-CV-03419 (S.D. Tex. filed Oct. 24, 2006).
. Plaintiff’s documents were not submitted in accordance with the court's Rules, but given plaintiff’s pro se status, the undersigned ordered the submission filed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218514/ | Motion for attorney's fees; Equal Access to Justice Act — 28 U.S.C. § 2412(d)(1)(A); United States Department of Housing and Urban Development — Housing Assistance Payments; “Substantially justified”; Defendant’s position was “reasonable basis in law and fact”; Motion denied.
OPINION
ALLEGRA, Judge:
Before the court is a motion for attorney’s fees filed by plaintiffs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). For the reasons that follow, the court hereby DENIES plaintiffs’ motion.
I.
Plaintiffs entered into rent subsidy agreements with the United States Department of Housing and Urban Development (HUD), known as “Housing Assistance Payment” (HAP) contracts. This court previously determined that defendant repudiated those contracts in 1994, ‘when Congress amended the controlling statute to alter the way in which rent increases were to be determined. Park Props. Assocs., L.P. v. United States, 74 Fed.Cl. 264, 265-66 (2006) (Park Props. I). Later, the court held that a limitation found in the HAP contracts could not be applied to limit the damages owed by defendant. Park Props. Assocs., L.P. v. United States, 82 Fed.Cl. 162, 176 (2008) (Park Props. II).
The court stayed resolution of the pending cross-motions until the Federal Circuit decided Haddon Housing Associates Ltd. Partnership v. United States, 711 F.3d 1330 (Fed.Cir.2013). Following the issuance of that opinion, the parties agreed that: (i) the Departments of Veterans Affairs and Housing and Urban Development, and Independent *789Agencies Appropriation Act of 1995, Pnb.L. No. 103-327, 108 Stat. 2298, 2315 (1994) (the 1994 Act), as implemented by HUD, breached provisions in plaintiffs’ HAP contracts; (ii) the Overall Limitation provision found in plaintiffs’ HAP contracts cannot be applied to reduce plaintiffs’ rent adjustments for purposes of calculating damages herein; and (iii) the provision of the 1994 Act that required a deduction in adjustments for units that did not turnover cannot be applied to reduce plaintiffs’ rent adjustments for purposes of calculating their damages.1
Based on the foregoing, the court granted, in part, and denied, in part, plaintiffs’ motion for summary judgment and granted, in part, and denied, in part, defendant’s motion for summary judgment. Park Props. III, 2014 WL 4667212. Initially, the court granted plaintiffs’ motion regarding the so-called stub period, adopting, inter alia, Judge Lettow’s analysis in Pennsauken Senior Towers Urban Reneival Assocs., LLC v. United States, 83 Fed.Cl. 623, 629 (2008). See Park Prop. III, 2014 WL 4667212, at *1. Next, the court concluded that plaintiffs could recover payments due from HUD’s vacant units. The court noted defendant failed to press this argument, thereby waiving the argument and leading to the conclusion that plaintiffs were entitled to the payments in question. Id. at *2. Finally, plaintiffs argued that they were entitled to lost profits associated with the reduced rents in their HAP contracts. The court noted that plaintiffs had, inter alia, failed to plead that claim in their complaint. Id.
On October 31, 2014, the parties submitted a joint stipulation quantifying damages pursuant to the court’s opinion. The parties reserved their rights to appeal at that point in time. On November 4, 2014, the'Clerk entered judgment in favor of each of the three plaintiffs in the amounts of $1,720,707 for Park Properties Associates, L.P., $2,996,756 for Valentine Properties Associates, L.P., and $749,330 for St. John’s I Associates L.P., for a total judgment of $5,466,793. On February 4, 2015, plaintiffs filed a motion for attorney’s fees and costs under RFCF 54(d) and the EAJA, 28 U.S.C. § 2412(d)(1)(A). The time allotted to file an appeal expired on February 5, 2015, and no appeal was taken. Briefing on the EAJA motion has now been completed.
Argument on the motion is deemed unnecessary.
II.
Absent a statute or enforceable contract provision, fee shifting is generally prohibited, with each party instead ordinarily bearing its own attorney’s fees. See Chambers v. NASCO, Inc., 501 U.S. 32, 45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). This so-called “American Rule” is founded on the belief that requiring an unsuccessful litigant to pay the litigation expenses of the prevailing party would unduly deter parties' from seeking to “vindicate their rights” in a judicial forum. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); see also Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 1 L.Ed. 613 (1796) (in which this rule originated). Over the years, however, courts have recognized limited exceptions to this rule, among them that a court may use its inherent power to assess attorney’s fees “when a party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Chambers, 501 U.S. at 45-46, 111 S.Ct. 2123 (quoting F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974)); see also Alyeska, 421 U.S. at 258-59, 95 S.Ct. 1612. Section 2412(b) of Title 28, a provision of the EAJA, extends this concept to the United States, subjecting it to the award of attorney’s fees in civil eases “to the same extent that any other party would be liable under the common law *790... for such an award.” 28 U.S.C. § 2412(b).2
As a primary focus, the court must determine whether the position of the United States in this case was “substantially justified.” In this regard, 28 U.S.C. § 2412(d)(1)(A) states, in pertinent part, that “a court shall award to a prevailing party other than the United States fees and other expenses, ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” Defendant bears the burden of proving that its position was substantially justified. See Helfer v. West, 174 F.3d 1332, 1336 (Fed.Cir.1999); Doty v. United States, 71 F.3d 384, 385 (Fed.Cir.1995); Insight Sys. Corp. v. United States, 115 Fed.Cl. 734, 737 (2014). Defendant must show that its position throughout the dispute was “ ‘justified in substance or in the main’— that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also Chiu v. United States, 948 F.2d 711, 715 (Fed.Cir.1991); Hyperion, Inc. v. United States, 118 Fed.Cl. 540, 545 (2014). Such an inquiry focuses not only on the position taken by the Justice Department before this court, but also on the agency’s prelitigation conduct.. See Comm’r of I.N.S. v. Jean, 496 U.S. 154, 159, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990); Hubbard v. United States, 480 F.3d 1327, 1332 (Fed.Cir.2007); Smith v. Principi, 343 F.3d 1358, 1361-62 (Fed.Cir.2003).
To be sure, this court has concluded that plaintiffs’ HAP contracts were breached in various ways, including the 1994 amendments made by the Housing Act. However, the decisional law on this count plainly was unclear prior to the Federal Circuit’s deeision in Haddon Hous. Assocs. v. United States, 711 F.3d 1330 (Fed.Cir.2013). Indeed, Haddon aside, the decisional law on aspects of this subject remains somewhat unsettled, even until now. See Cathedral Square Partners Ltd. P’ship v. S.D. Hous. Dev. Auth., 2011 WL 43019, at *17 (D.S.D. Jan. 5, 2011), rev’d in part on recon., 966 F.Supp.2d 862 (D.S.D.2013); Greenleaf L.P. v. Ill. Hous. Dev. Auth., 2010. WL 3894126, at *4 (N.D.Ill. Sept. 30, 2010); Haddon Hous. Assocs., LLC v. United States, 99 Fed.Cl. 311, 330 (2011), aff'd in part, rev’d in part, 711 F.3d 1330 (Fed.Cir.2013); Statesman II Apartments, Inc. v. United States, 66 Fed.Cl. 608, 620 (2005); Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed.Cl. 751, 783 (2003); see also One & Ken Valley Hous. Grp. v. Maine State Hous. Auth., 2012 WL 1458202 (D.Me. Apr. 17, 2012), aff'd, 716 F.3d 218 (1st Cir.2013), cert. denied, - U.S. -, 134 S.Ct. 986, 187 L.Ed.2d 775 (2014). Plaintiffs cannot ignore the fact that significant differences of opinion have been expressed in these cases. Certainly, the decisions are far from unanimous.
Contrary to plaintiffs’ claims, various factual and legal issues in the ease sub judice remained extant for several reasons— and not just because of the passage of time. For one thing, “the decisions of this court are not binding precedent for judges of this court.” Sotera Def. Solutions, Inc. v. United States, 118 Fed.Cl. 237, 258 (2014).3 Plaintiffs are simply wrong in suggesting that the decision in this case was somehow bound up by binding precedent. It was not. Second, the courts have been particularly hesitant to impose attorney’s fees in matters of first impression — and, like it or not, that is the case regarding several of the key legal points here.4 Third, and perhaps most importantly, *791in deciding whether a position is substantially justified, the Supreme Court has instructed that defendant’s “position can be justified even though it is not correct,” requiring that that position have a “reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541; see also Norris v. S.E.C., 695 F.3d 1261, 1265 (Fed.Cir.2012); DGR Assocs. Inc. v. United States, 690 F.3d 1335, 1344 (Fed.Cir.2012); Insight Sys., 115 Fed.Cl. at 737. The substantial justification standard requires less than winning the ease and more than being “merely undeserving of sanctions for frivolousness.” Pierce, 487 U.S. at 566, 108 S.Ct. 2541.5 And, in the court’s view, defendant’s position has a “reasonable basis in law and fact.”6
Finally, the court rejects, categorically, any notion that plaintiffs may seek recovery of attorney’s fees on the notion that defendant — and apparently defendant alone — protracted the settlement negotiations here. Defendant’s actions in this regard cannot be the basis for the payment of attorney’s fees for a variety of reasons, including the sanctity associated with the handling of settlement negotiations. Plaintiffs should not be heard to argue otherwise. See Federal Rules of Evidence, Rule 408(a); PCL Constr. Servs., Inc. v. United States, 84 Fed.Cl. 408, 431 (2008) (stating that Rule 408 of the Federal Rules of Evidence “prohibits the admissibility of statements made in settlement negotiations if offered to prove liability or the amount of a claim”).7
III.
The court will not gild the lily. Based on the foregoing, the court hereby DENIES plaintiffs’ motion for attorney’s fees under the EAJA
IT IS SO ORDERED.
. A detailed recitation of the background facts in this case may be found in this court’s prior opinions. See Park Props. II, 82 Fed.Cl. at 164-67; Park Props. I, 74 Fed.Cl. at 266-70; see also Park Props. Assocs., L.P. v. United States, 2014 WL 4667212, at *1 (Sept. 19, 2014) (Park Props. III). The court will not restate these facts, but instead hereby incorporates, by reference, these prior recitations.
. See also H.R.Rep. No. 96-1418, at 9 (1980) (section 2412(b) “reflects a strong movement by Congress toward placing the federal government and civil litigants on a completely equal footing”); Kerin v. U.S. Postal Serv., 218 F.3d 185, 190 (2d Cir.2000); First Fed. Sav. & Loan Assoc. of Rochester v. United States, 88 Fed.Cl. 572, 582 n. 4 (2009).
. Sea also AINS, Inc. v. United States, 365 F.3d 1333, 1336 n.1 (Fed.Cir.2004), abrogated on other grounds by Slattery v. United States, 635 F.3d 1298 (Fed.Cir.2011) (en banc); Mass. Mut. Life Ins. Co. v. United States, 103 Fed.Cl. 111, 137 (2012), aff'd, 782 F.3d 1354 (Fed.Cir.2015); Amergen Energy Co., LLC, ex rel. Exelon Generation Co., LLC v. United States, 94 Fed.Cl. 413, 422 (2010).
.See White v. Nicholson, 412 F.3d 1314, 1316 (Fed.Cir.2005), cert. denied, 547 U.S. 1018, 126 S.Ct. 1570, 164 L.Ed.2d 298 (2006); Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States, 837 F.2d 465, 467 (Fed.Cir.), cert. *791denied, 488 U.S. 819, 109 S.Ct. 60, 102 L.Ed.2d 38 (1988); Gava v. United States, 699 F.2d 1367, 1371 (Fed.Cir.1983). Indeed, the legislative history of EAJA makes clear that the governing standard allows defendant to advance " 'in good faith ... novel but credible ... interpretations of the law.’ ” Russell v. Nat’l Mediation Bd., 775 F.2d 1284, 1290 (5th Cir.1985) (quoting H.R.Rep. No. 96-1418 at 11 (1980)); see also Renee v. Duncan, 686 F.3d 1002, 1017 (9th Cir.2012); Insight Sys. Corp., 115 Fed.Cl. at 738.
. As recently noted by this court, "[t]he government’s position may be substantially justified even if ultimately incorrect.” Hyperion, 118 Fed.Cl. at 545; see also Manno v. United States, 48 Fed.Cl. 587, 589 (2001). The appropriate inquiry is "not what the law now is, but what the [gjovernment was substantially justified in believing it to have been.” Loomis v. United States, 74 Fed.Cl. 350, 355 (2006) (quoting Pierce, 487 U.S. at 561, 108 S.Ct. 2541).
. To be sure, apart from the substantial justification point under the statute, it cannot be overlooked that plaintiffs did not prevail as to all the substantive issues in this case. See Park Props. III, 2014 WL 4667212, at * 2; Park Props. I, 74 Fed.Cl. at 265-66. On that basis alone, the court would reject imposing attorney’s fees in this case.
.See also Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 265 F.3d 1294, 1307-08 (Fed.Cir.2001) (discovery was not permitted into negotiations surrounding a settlement agreement based on the failure to show the materiality of the settlement agreement and the Rule 408 policy in favor of protecting settlement agreements); Nat’l Presto Indus., Inc. v. W. Bend Co., 76 F.3d 1185, 1197 (Fed.Cir.1996) (affirming district court’s exclusion of evidence as settlement negotiations subject to Fed.R.Evid. 408); Power Auth. of New York v. United States, 62 Fed.Cl. 376, 377-79 (2004) (defendant’s motion to strike settlement document granted); Ryan-Walsh, Inc. v. United States, 39 Fed.Cl. 305, 307 (1997) (defendant’s motion in limine to restrict statement made during settlement negotiations granted). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218227/ | MEMORANDUM *
Richard Casas appeals the district court’s refusal to compel the government to move for a downward departure under U.S. Sentencing Guideline § 5K1.1 (“Substantial Assistance to Authorities”). His plea agreement obligated the government to do so if it found he had “provided *137substantial assistance.” It is not disputed that Casas provided much of value to the government. The government refused, however, to find that Casas had provided substantial assistance because it found that he had not been entirely truthful in his interviews with investigators. This, inter alia, undermined his potential value as a witness against his co-conspirators.
The refusal to compel specific performance of a plea agreement is reviewed for abuse of discretion. United States, v. Anthony, 93 F.3d 614, 616 (9th Cir.1996).
Whether the government would have found that Casas provided substantial assistance in the absence of what it judged to be this lack of candor is immaterial. Under the plea agreement, the government’s obligation to make the § 5K1.1 motion was predicated upon its determination, “in its exclusive judgment, that defendant has provided substantial assistance to law enforcement in the prosecution or investigation of another” (emphasis added).
“The district court cannot review the government’s discretionary decision not to file the [§ 5K1.1] motion, except that ‘the government cannot refuse to file such a motion on the basis of an unconstitutional motive ... or arbitrarily (i.e., for reasons not rationally related to any legitimate government interest).”’ United States v. Mikaelian, 168 F.3d 380, 385 (9th Cir.1999) (quoting United States v. Murphy, 65 F.3d 758, 762 (9th Cir.1995)). The district court correctly understood that it could review the government’s decision not to bring a motion for downward departure to determine whether the government acted in bad faith. Upon doing so, it found that the government did believe that Casas had failed to cooperate fully, and that its decision was not an act of bad faith. This was not clear error, and its refusal to compel a motion was thus not an abuse of discretion. The district court’s refusal to compel a government motion to move for a downward departure is
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218228/ | MEMORANDUM **
Petitioner, Nacereddine Bouzouad, a.k.a. Houari Benghozala, petitions for review of the BIA’s decision affirming the IJ’s denial of his application for asylum. Petitioner contends that he worked as a singer at weddings in Algeria and that, in 1997, he received threats from “terrorists” that he should stop singing because it was “against Islam.” He was told that if he did not stop, his tongue would be cut out or he would be killed.
The IJ’s decision, summarily affirmed by the BIA, correctly determined that petitioner did not demonstrate past persecution or a well-founded fear of future persecution on account of membership in a particular social group or innate characteristic. Hernandez-Montiel v. INS, 225 F.3d 1084, 1091-93 (9th Cir.2000). Petitioner was not entitled to asylum under section 101(a)(42)(A) of the Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1101(a)(42)(A), and section 208(b)(1), 8 U.S.C. § 1158(b)(1). Petitioner, for similar reasons, was unable to satisfy the statutorily higher burden, for withholding of removal, that it was more likely than not, if he returned to Algeria, that he would suffer persecution on account of a protected ground. See INS v. Stevie, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). He also has not established eligibility for relief under the Convention Against Torture, which requires a showing that it is more likely than not that he would be subject to physical and mental abuse at the hands of the government, or a group the government is not controlling. INA § 214(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16-18.
The petition for review is DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218229/ | MEMORANDUM*
Micron Technology, Inc. (“Micron”) discharged James Stefano (“Stefano”) for insubordinate conduct after he sent materials to a Micron Board Member that included criticisms of Micron’s CEO. Stefano sued under Idaho law, alleging wrongful discharge and slander.1 The district court granted summary judgment to Micron on the wrongful discharge claims. Stefano appeals the grants of summary judgment on three of his claims relating to his discharge. Micron cross-appeals, challenging the district court’s decision that no attorneys’ fees were due to Micron after it was awarded summary judgment. We affirm, rejecting the positions advanced on both appeal and cross-appeal.
I
Micron hired Stefano in 1986. His application stated that his employment could be “terminated at the will or election of Micron” and that Micron was “not expected to demonstrate just cause” if it discharged him. In 1992 Micron distributed a handbook that included a statement reaffirming Stefano’s at-will employment status. The handbook also forbade “insubordination and disruptive conduct,” which it defined as “discourteous ... or offensive conduct or language toward ... supervisors,” including “circulating anonymous notes or letters.”
According to Stefano, in March 1998 Micron Board Member Jerry Hess became concerned about the company’s product yields, and Hess consulted with Tyler Lowrey, a former Micron Board Member, who advised Hess that the data indicated Micron was having production problems. Hess asked Lowrey to get current yield data from Micron insiders. Lowrey called a Micron technician who, in turn, asked Stefano and his colleague Nicholas Van Heel to fax Hess confidential records on Micron’s production and efficiency. When Stefano faxed Hess the requested materials, Stefano included criticisms of Micron’s management by another engineer, Aftab Ahmad, stating that the CEO lacked vision and was pursuing self-oriented objectives. Stefano later acknowledged that after sending the fax, he feared repercussions. Stefano sent the fax anonymously, but the *141identities of Stefano, Van Heel, and Ahmad were discovered, and all three were discharged. Micron stated that Stefano was discharged for “unethical behavior, disclosing Micron’s confidential information to outsiders and causing disruption.”
Stefano and Van Heel sued Micron, Hess, Micron CEO Steven Appleton, and Micron Vice President Robert Donnelley, asserting claims including: (1) breach of oral contract; (2) breach of implied covenant of good faith and fair dealing; (3) wrongful discharge in violation of public policy; and (4) slander. Micron counterclaimed against Van Heel, alleging that he had violated certain terms in his employment contract.
After Stefano filed suit, Idaho Statesman reporter Marcie Edwards interviewed Micron counsel Rod Lewis and Micron spokesperson Julie Nash. Edwards published their statements the next day. In her deposition, Edwards testified that Lewis said that “Micron has an open-door policy that gives any Micron employee the right to give information to Micron directors,” and that the policy allows employees to “take their concerns [to superiors] without fear of retaliation.” Edwards said that Nash told her that “[Micron] directors had the right to request information from employees.”
The district court granted summary judgment to Hess on all claims, and to Micron and the Micron officials on all claims except for Stefano’s claim for slander.2 While Stefano’s case was pending, Van Heel and Micron settled and their claims against each other were dismissed, each side agreeing to bear its own costs. Stefano proceeded to trial on the slander claim. The jury found that Appleton had defamed Stefano, but that Stefano had not proved that Appleton’s statements were made with reckless disregard for the truth. Micron therefore had no liability for this claim.
Micron filed a petition seeking $948,027.81 for attorneys’ fees pursuant to Idaho state law. The district court denied the petition, reasoning that Micron was entitled to fees on Stefano’s wrongful termination claim, but that it was impossible to compute an award because the bills did not show how much time was spent on Stefano’s claims, as contrasted with those of Van Heel, nor did the bills show how much time was spent on Stefano’s wrongful termination claim, for which fees were due, as contrasted with his slander claim, for which fees were not due.
Stefano appeals the district court’s grant of summary judgment to Micron on his claims of breach of contract, breach of implied covenant of good faith and fair dealing, and wrongful discharge in violation of public policy. He also requests attorneys’ fees. Micron appeals the decision not to award any attorneys’ fees to it after it prevailed on summary judgment.
II
Stefano argues that his at-will employment status was modified by Micron’s “open-door policy,” which encouraged employees to communicate any concern about Micron to their superiors, including the Board of Directors, without fear of retaliatory action. Stefano points to: (1) Lewis and Nash’s statements that an employee could not be terminated for “giv[ing] information” to a board member or for expressing “concerns” to a superior; and (2) “daily conversations and interactions” with superiors showing that criticism was wel*142come. Stefano also argues that his at-will status was modified by Micron’s actual practice of discharging employees only for cause. Finally, Stefano argues that because Hess is a Micron Board Member, a request by Hess for information implicitly carried a promise that Stefano would not be terminated for responding.
We begin with a fundamental premise of Idaho state law. Idaho law provides that “[u]nless an employee is hired pursuant to a contract which specifies the duration of the employment or limits the reasons for which an employee may be discharged, the employment is at the will of either party.” Sorenson v. Comm Tek, Inc., 118 Idaho 664, 799 P.2d 70, 72 (1990) (internal quotation marks and citations omitted). “A limitation may be implied if, from all the circumstances surrounding the employment relationship, a reasonable person could conclude that both parties intended that the employer’s ... right to terminate the employment relationship-at-will had been limited by the implied-in-fact agreement of the parties.” Id. (quoting Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744, 746 (1989)).
Metcalf involved an employee who argued that because of a sick-leave benefit set out in the manual issued by her employer, her at-will status was modified by an agreement that she could not be terminated for extended use of that benefit where she did not exhaust the sick-leave time available to her. Metcalf held that the employee’s at-will status was modified where the benefit was described in the handbook, the employee relied on it, and the benefit was part of the employee’s compensation package.
The narrow exception to the at-will doctrine outlined in Metcalf has no application here. In Stefano’s case, the employee handbooks issued by Micron were explicit about the at-will nature of his employment. Even if Micron did purport to embrace an “open-door policy,” Stefano’s furtive behavior suggests a lack of confidence about its existence. Nor, unlike in Metcalf, was the alleged policy an earned benefit accrued as the result of an employment contract. Even if we were to assume the existence of the “open-door policy,” Met-calf does not support Stefano’s claim that the at-will relationship had been impliedly modified.
Stefano urges that under Federal Rule of Evidence 801(d)(2)3 Lewis and Nash’s statements should be regarded as statements against interest because they are admissions that Micron modified his at-will status. They may be admissions against interest, but at most, they show that Micron had an “open-door policy.” But such a policy did not bring Stefano within the Metcalf exception to at-will employment. The “open-door policy,” which we credit for summary judgment purposes, did not modify Stefano’s at-will status.
As for Stefano’s argument that Micron’s testimony showed that Micron had a practice of terminating only for cause, no Idaho court has held that such a practice modifies at-will employment to make it terminable only for cause. In Atwood v. Western Construction, Inc., 129 Idaho 234, 923 P.2d 479, 485 (1996), the court said it would not “consider evidence that a company does not usually fire employees without a good reason as by itself establishing that the company does not maintain an at-will employment policy.” (citation omitted) (emphasis in original). Atwood does not help Stefano. He fails to point out any relevant considerations other than the alleged practice, and Atwood makes it plain that this *143factor alone does not modify an employee’s at-will status.
Finally, Stefano argues that Hess’s request carried an implicit promise that Stefano could not be discharged for responding to the request. But Hess did not request the kind of critical commentary that was supplied along with the statistical data, and so any implied promise did not reasonably extend to Stefano’s actions here.
There was no error in the grant of summary judgment to Micron on the claim for breach of contract. We hold that even if Micron had an “open-door policy,” and even if Stefano’s conduct in part could be viewed as the kind of conduct the policy was meant to encourage, Stefano’s claim for breach of contract must fail, because Micron did not modify Stefano’s at-will employment status, and because Stefano’s circulation of comments critical of the CEO went beyond what had been requested.
Ill
Stefano appeals the district court’s grant of summary judgment to Micron on the claim for breach of implied covenant of good faith and fair dealing (“implied covenant”). First, Stefano argues that the discharge was a result of bad faith. Second, Stefano says he was promised that Micron would maintain an “open-door policy,” and that that promise was a benefit due to him under the implied covenant.
Both arguments fail under Idaho law. First, Metcalf “reject[ed] the amorphous concept of ‘bad faith’ as the standard for determining whether the covenant [of good faith and fair dealing] has been breached.” Metcalf, 778 P.2d at 749. Second, in explaining what “benefits” are protected by the implied covenant, Metcalf stated that “[t]he covenant does protect an employee from a discharge based on an employer’s desire to avoid the payment of benefits already earned by the employee, such as ... sales commissions ... but not the tenure to earn ... pension and retirement benefits.” Id. (emphasis altered). Even if Micron did not fulfil its promise to maintain an “open-door policy,” Stefano had no basis for a claim of breach of the implied covenant, because the “open-door policy” did not involve a benefit that was “earned by the employee.” There was no error in the district court’s grant of summary judgment to Micron on Stefano’s claim of breach of implied covenant.'
IV
Stefano appeals the district court’s grant of summary judgment to Micron on his claim alleging wrongful discharge in violation of public policy. Under Idaho law, “[a]n employee at will may not ... be discharged for a reason contravening public policy.” Watson v. Idaho Falls Consol. Hosp., 111 Idaho 44, 720 P.2d 632, 635 (1986). Stefano argues that Idaho law gives a director of a corporation free access to information from employees, and that public policy dictates that an employee cannot be discharged for complying with a request for such information. Stefano also argues that as a Micron shareholder himself, he had a right to ensure that his property was well managed.
Stefano’s case does not fall within any proper exception. He offered critical commentary that went beyond merely providing information and ensuring that his property was well managed. Stefano’s transmittal of Ahmad’s hostile commentary was not responsive to Hess’s request. Micron’s decision to discharge Stefano for providing such hostile commentary did not violate public policy.
V
Because there was no error in the district court’s grant of summary judgment to *144Micron, we deny Stefano’s request for attorneys’ fees pursuant to Idaho Code § 12-120(3).4
VI
Micron appeals the district court’s determination that no attorneys’ fees were due to Micron, pursuant to the same provision of the Idaho Code. The district court explained that Micron was not entitled to fees on the slander claim, because the jury found that Appleton had slandered Stefano, but not recklessly. The court also noted that when Micron and Van Heel settled, each side was to bear its own costs; therefore Micron was not entitled to fees related to Van Heel. Thus Micron was entitled only to fees for prevailing on Stefano’s wrongful termination claims, and the court said that “since neither firm representing Micron broke out the fees they incurred ... the court would be forced to speculate about those sums.”5 The court concluded that “[u]nder these circumstances an award of fees is not warranted.”
Attorneys’ fee awards are reviewed for abuse of discretion. Hemmings v. Tidy-man’s, Inc., 285 F.3d 1174, 1200 (9th Cir. 2002). Micron argues that if the available information was insufficient to allow for an accurate computation, the district court should have “requested [more] information ... or simply reduced the fee to a reasonable amount.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir.2000). In Fischer the court said it appeared that “more detailed records were readily available.” Id. Here, it appears that the court already received the most detailed records available, and those records did not allow the court to segregate fees. Fischer does not apply in such a case. The district court was within its discretion when it properly declined to speculate, and any further submission in this case would not have cured that problem. See San Francisco Culinary, Bartenders & Serv. Employees Welfare Fund v. Lucin, 76 F.3d 295, 299 (9th Cir.1996) (holding that fees could not be awarded where they were not segregable from fees not due, because “[i]f it is not possible ... to segregate the costs, then no award of attorneys’ fees can be made.”). Here, the district court has already determined it is not possible to segregate the fees that related to the claims on which Micron prevailed. The district court’s decision to award no fees was not an abuse of discretion.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. The slander claim was tried to a jury, which found that slander had occurred, but that no damages were due to Stefano because the challenged statements were not made with reckless disregard for the truth. No appeal on the slander claim is before us.
. Stefano's slander claim was based on the accusation by Appleton that Stefano had disclosed confidential information to outsiders.
. That rule provides that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... the party’s own statement.”
. That statute provides that "[i]n any civil action to recover on ... [a] contract relating to the purchase or sale of ... services ... the prevailing party shall be allowed a reasonable attorney’s fee to be set by the court, to be taxed and collected as costs.”
. Micron’s documentation of the attorneys' fees occupies 262 pages in the record. These documents do not allow for identification of expenses relevant only to Van Heel (e.g., depositions of Van Heel or of witnesses relevant only to his case), or of expenses incurred for Stefano’s libel claim. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218230/ | MEMORANDUM***
Defendant-Appellant Cristobal DeLeon Fernandez was convicted by a jury of conspiracy to distribute and possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846. On appeal, Fernandez argues: (1) that the trial court erred in failing to hold a full evidentiary hearing to examine whether the government breached a plea agreement, (2) that there was insufficient evidence to convict him of possession with intent to distribute more than 500g of methamphetamine, and (3) that the trial court erred in giving him only a 2 level *146sentencing deduction after finding early cooperation and an acceptance of responsibility. We affirm in part, reverse in part, and remand for re-sentencing.
This Court reviews the District Court’s findings as to the existence and terms of the alleged plea agreement for clear error. United States v. Helmandollar, 852 F.2d 498, 501 (9th Cir.1988). The District Court properly considered whether an enforceable plea agreement existed and whether Fernandez detrimentally relied on a governmental plea offer. United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992). Fernandez’s reliance on United. States v. Hyde, 520 U.S. 670, 670-73, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997), is misplaced. Hyde dealt with when a plea of guilty could be withdrawn from the Court, it did not change the rule that a plea agreement could be withdrawn by either party before being submitted to and accepted by the Court. Hyde, 520 U.S. at 670-73. The District Court did not clearly err in concluding that no enforceable plea agreement existed because a signed agreement had not been submitted to and accepted by the Court, and did not clearly err in determining that Fernandez did not detrimentally rely on the plea offer. Id.
This Court reviews a District Court’s decision whether to conduct an evidentiary hearing for abuse of discretion. See United States v. Sarno, 73 F.3d 1470, 1502-03 (9th Cir.1995). Because no enforceable plea agreement existed, the District Court did not abuse its discretion in declining to hold an evidentiary hearing on the secondary issue of whether an existing plea agreement was breached. United States v. Sarno, 73 F.3d 1470, 1502-03 (9th Cir. 1995).
In reviewing a sufficiency of the evidence challenge, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the disputed issue was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Booth, 309 F.3d 566, 574 n. 5 (9th Cir.2002). In this case, a co-conspirator testified that Fernandez transported five pounds of a mixture containing methamphetamine from California. A police officer corroborated this statement, and additionally testified that he sent the packets he seized to the Drug Enforcement Agency (DEA) in a heat-sealed package. A DEA chemist testified that she received a heat-sealed package. She further testified that she removed the drug mixture from the packaging before testing the substance for composition. She determined that the net weight of the substance seized was 2104 grams, 610.1 grams of which was pure methamphetamine. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that Fernandez possessed at least 500 grams of a substance containing a detectible amount of methamphetamine.
Whether a defendant is entitled to a sentencing adjustment for acceptance of responsibility is a factual determination reviewed for clear error. United States v. Blanco-Gallegos, 188 F.3d 1072, 1076 (9th Cir.1999). The government concedes that the District Court clearly erred in failing to grant Fernandez a third point for acceptance of responsibility pursuant to 3El.l(b), after having determining that his early cooperation and truthful statements warranted a two-level decrease for acceptance of responsibility pursuant to 3El.l(a). United States v. Ramirez-Cortez, 213 F.3d 1149, 1159 (9th Cir.2000); Blanco-Gallegos, 188 F.3d 1072, 1076-77 (1999). Therefore, although we affirm Fernandez’s conviction, we remand for re-sentencing.
*147The decision below is AFFIRMED IN PART AND REVERSED IN PART. Fernandez’s sentence is VACATED and this matter is REMANDED for re-sentencing.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218232/ | MEMORANDUM **
1. The district court did not err in concluding that tribal courts should have first opportunity to determine whether they have jurisdiction to hear actions based on the Family and Medical Leave Act. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,15, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (“[Although the existence of tribal court jurisdiction presented a federal question within the scope of 28 U.S.C. § 1381, considerations of comity direct that tribal remedies be exhausted before the question is addressed by the District Court.”); Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 855-56, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) (holding that the inquiry over “whether a tribal court has the power to exercise civil subject-matter jurisdiction ... should be conducted in the first instance in the Tribal Court itself’).
The absence of any ongoing litigation over the same matter in tribal courts does not defeat the tribal exhaustion requirement. See United States v. Plain-bull, 957 F.2d 724, 728 (9th Cir.1992) (“Whether a tribal action is pending ... does not determine whether abstention is appropriate____ [W]e held that abstention ... was required even in the absence of a pending tribal court action.”).
2. Nor did the district court err in concluding that the tribal exhaustion requirement also applies to issues of tribal sovereign immunity. Determining whether the tribe has waived immunity, or whether Congress has abrogated its immunity, requires “a careful study of the application of tribal laws, and tribal court decisions.” Stock West Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir.1992); see also Nat’l Farmers, 471 U.S. at 855-56, 105 S.Ct. 2447. Accordingly, the district court properly “stayed its hand until after the ... Tribal Courts have the opportunity to resolve the question.” Stock West Corp., 964 F.2d at 920.
3. But the district court erred when, instead of simply staying the federal action, it granted Spirit Mountain’s motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1). See Iowa Mut. Ins. Co., 480 U.S. at 16 n. 8, 19-20, 107 S.Ct. 971 (“Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite .... [T]he court [of appeals] should not have affirmed the District Court’s dismissal for lack of subject-matter jurisdiction.”). The error is exacerbated here because dismissal might mean that Sharber would later be “barred permanently from asserting his claims in the federal forum by the running of the applicable statute of limitations.” Deakins v. Monaghan, 484 U.S. 193, 203 n. 7, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); see also 29 U.S.C. § 2617(c). Under the circumstances, the district court should have stayed, not dismissed, the federal action pending the exhaustion of tribal remedies. See, e.g., Allstate Indent. Co. v. Stump, 191 F.3d 1071, 1076 (9th Cir.1999). We remand the case to the district court for it to enter the appropriate' order.
AFFIRMED in part, REVERSED in part and REMANDED. No costs.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218233/ | *154MEMORANDUM **
Ronald Everett, a California state prisoner, appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison officials violated his constitutional rights by conducting an anal cavity search pursuant to a search warrant and subsequently placing him into administrative segregation. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo both a district court’s dismissal for failure to state a claim and summary judgment. See Barnett v. Centoni 31 F.3d 813, 815-16 (9th Cir.1994) (per curiam). We affirm.
The district court properly granted summary judgment on Everett’s Fourth Amendment claim because the anal cavity search was conducted upon reasonable suspicion that Everett was involved in drug trafficking, see Vaughan v. Ricketts, 950 F.2d 1464, 1469-70 (9th Cir. 1991), and because the search was related to the legitimate penological goal of maintaining a drug-free prison facility, see Tribble v. Gardner, 860 F.2d 321, 325 (9th Cir.1988). In addition, the district court properly concluded that Everett failed to refute Witcher’s evidence that the search was performed by medical personnel in a professional manner. See Vaughan, 950 F.2d at 1469-70. Similarly, the district court properly granted summary judgment on the Eighth Amendment claim because Everett failed to create a genuine issue of material fact that the search caused him “unnecessary and wanton infliction of pain.” See Tribble, 860 F.2d at 325 n. 6.
The district court properly dismissed Everett’s procedural due process claim arising from his placement in administrative segregation because he had no liberty interest in not being placed in segregation. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir.1997). Furthermore, Everett’s allegation that the prison officials violated his due process rights by relying on confidential informants lacks merit. See Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.1987); see also Cal.Code of Regs. tit. 15, Sec. 3321(c) (confidential source may be deemed rehable if the provided information is self-incriminating).
We have considered Everett’s contentions that the district court abused its discretion in denying his motion for leave to amend and his motion for additional discovery. Both contentions are unpersuasive. See Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir.1999) (denying motion to amend because, among other things, plaintiff’s motion was untimely and failed to explain the delay); Qualls ex rel. Qualls v. Blue Cross of Calif, Inc., 22 F.3d 839, 844 (9th Cir.1994) (denying Fed.R.Civ.P. 56(f) motion because plaintiff had not “diligently pursued previous discovery opportunities,” and because he did not “show how allowing the additional discovery would have precluded summary judgment”).
Finally, the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over Everett’s state law claims because it had dismissed all of the claims over which it had original jurisdiction. See 28 U.S.C. § 1367(c)(3); Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001).
There is no support in the record for Everett’s contention that the district court was biased against him. See 28 U.S.C. § 455(a).
*155Everett’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218234/ | MEMORANDUM**
Osman Manfredy Maldonado de Leon (“Maldonado”), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) denial of his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252(b). We review for substantial evidence and will reverse the BIA’s determination only if the petitioner shows that the evidence compels such a result. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). We deny the petition.
*156Maldonado’s asylum claim is based on a single conversation with two men who identified themselves as military police seeking information about Maldonado’s employer. Maldonado claimed that he subsequently received vague and unfulfilled threats against himself and his family. These incidents do not compel a fact-finder to conclude that Maldonado was persequted. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (holding that threats standing alone generally do not constitute past persecution).
Maldonado’s fear of future persecution is not objectively well-founded because he did not adduce “credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution.” Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir.1991). In addition, Maldonado offered no evidence that his - aMge^'persecutors imputed a political opinion to'him. See Molina-Estrada, v. INS, 293 F.3d 1089, 1094-95 (9th Cir. 2002).
Because Maldonado failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218516/ | Pro Se Plaintiff; In Forma Pauperis Application; Lack of Subject Matter Jurisdiction.
ORDER
HORN, J.
FINDINGS OF FACT
The plaintiff, Matthew Lee Baber, filed a pro se, handwritten complaint in this court on May 27, 2015, and has since filed an application to proceed in forma pauperis. Plaintiffs complaint, in the form of a letter ad*809dressed, “Dear, Clerk of Court,” apparently seeks review of a decision by the North Carolina Court of Appeals, which found that the trial court did not abuse its discretion when it denied plaintiffs motion for a mistrial on the charge of first-degree murder and arrested the judgment entered on the charge of discharging a firearm into an occupied vehicle. Plaintiff states: “This letter is in concern to my illegal conviction For the above mention ease File.”1 As the plaintiffs letter of complaint is very brief and contains few details, much of the findings of fact in this order are taken from the North Carolina Court of Appeals decision, which was included as an exhibit with Mr. Baber’s complaint. According to the plaintiff, his conviction was based on an allegedly prejudicial statement given by the State’s witness, Elliott Simmons. In this court, Mr. Baber claims violations of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
According to a copy of the April 16, 2013 North Carolina Court of Appeals decision, submitted by Mr. Baber 'together with his complaint, on the evening of May 8, 2008, Mr. Baber stated, in the presence of Mr. Simmons, Clint Gaines and Amanda Morgan, that he “was going to get [Murdock] back for the way [Murdock] did to him.” (alterations in original). Mr. Baber got into Mr. Simmons’ pickup truck, bringing his AK-47 assault rifle with him. Mr. Baber spotted Mr. Murdock at a convenience store and had Mr. Simmons follow him along the road back to Mr. Murdock’s home. In front of Mr. Mur-dock’s residence, Mr. Baber fired bullets into Mr. Murdock’s vehicle, striking Mr. Murdock in his lower back and puncturing his right iliac artery, killing him. After returning to Mr. Gaines and Ms. Morgan, Mr. Baber told Mr. Gaines that he had “got him.”
Mr. Baber was indicted for first-degree murder and for discharging a weapon into an occupied vehicle. He was tried by jury in Brunswick County, North Carolina. During the jury trial, the State called Mr. Simmons, who had made a plea bargain with the State. Mr. Simmons admitted that he had initially been untruthful to law enforcement about the incident before deciding to cooperate on the advice of his appointed counsel. Thereafter, Mr. Simmons indicated he had opportunities to speak with law enforcement and was asked during direct examination whether he had ever provided the police with a written statement giving his account of the events of May 8, 2008. Mr. Simmons responded to this question by stating, “I believe I did during a polygraph test.”
At his trial in the North Carolina state court, Mr. Baber immediately objected to this statement, and the jury was removed from the courtroom. Mr. Baber moved for a mistrial, claiming that the timing of Mr. Simmons’ statement regarding the polygraph test, shortly after the witness had explained his decision to provide truthful information to the police, would give the jury the “mistaken impression” that Mr. Simmons had passed the polygraph (which, according to plaintiffs brief on appeal, also submitted with plaintiffs complaint in this court, Mr. Simmons had failed). Therefore, Mr. Baber claimed, his defense would be prejudiced. Because the results of polygraph tests are inadmissible in North Carolina, the trial court gave the jury a curative instruction to disregard Mr. Simmons’ reference to the polygraph testing. The trial court denied Mr. Baber’s motion for a mistrial on the grounds that Mr. Simmons’ inadvertent reference to the polygraph test did not directly indicate its result. At the close of the State’s case, Mr. Baber renewed his motion for a mistrial, which, again, was . denied by the trial court. The jury found Mr. Baber guilty of first-degree murder and guilty of discharging a weapon into an occupied vehicle. The trial court entered judgment on both offenses. Mr. Ba-ber was sentenced to life imprisonment, with no possibility of parole.
Mr. Baber appealed the verdict to the North Carolina Court of Appeals, claiming that the trial court abused its discretion when it denied his motion for a mistrial on the murder charge and seeking the arrest of *810the separate judgment against him for discharging a weapon into an occupied vehicle. The North Carolina Court of Appeals upheld the trial court’s denial of Mr. Baber’s motion for a mistrial, but granted Mr. Ba-ber’s request to arrest judgment on the charge of discharging a weapon into an occupied vehicle. With regard to the denial of Mr. Baber’s motion for a mistrial, the court explained that because Mr. Simmons’ inadvertent statement regarding the polygraph was made, in the context of testimony in which he admitted lying to police several times during their investigation before deciding to cooperate, it was not at all clear that the jury was left with the inference that Mr. Simmons had in fact passed the polygraph test. Furthermore, the court found that the trial court’s 'Curative jury instruction to disregard the single reference to the polygraph test was sufficient to provide the defendant with a “fair and impartial trial.” On the charge of discharging a weapon into an occupied vehicle, the appellate court held that this lesser charge was properly merged into Mr. Baber’s felony murder conviction, and arrested judgment on the separate sentence imposed for that charge by the trial court, while leaving Mr. Baber’s life sentence for felony murder undisturbed.
According to Mr. Baber’s letter of complaint in this court:
The Plaintiff Prays that this Honorable Court will agrée that Plaintiff 5th, 6th and 14th Am to the U.S. Const, was violated by both trial court and N.C. Court of Appeals once you have examine the attached record.
Please File civil lawsuits against the State of North Carolina For the violation of Trial Court err in bring up past record trial counsel never objected to error, seen AT: TP: 860-862) said record was in violation of JUVENILE CODE 7B-3000(F) as well as violated G.S.8C-1 Rule 404(b) ...
The plaintiff concludes this letter with the following postscript: “P.S. I Look Forward to hearing From your office on this Explicit legal matter.”
The defendant filed a motion to dismiss Mr. Baber’s complaint for láck of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) (2014).
DISCUSSION
The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings.2 See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92. S.Ct. 963, 30 L.Ed.2d 819 (1972), see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed.Cir.2014); Diamond v. United States, 115 Fed.Cl. 516, .524, aff'd, 603 Fed.Appx. 947, 2015 WL 527500 (Fed.Cir. Feb. 10, 2015), cert. denied — U.S. -, 135 S.Ct. 1909, 191 L.Ed.2d 766 (2015). “However, “ ‘[t]here is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.” ’ ” Lengen v. United States, 100 Fed.Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 Fed.Appx. 542 (Fed.Cir. 2011); Minehan v. United States, 75 Fed.Cl. 249, 253 (2007). “While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. *811United States, 93 Fed.Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9, 101 S.Ct. 173 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.”), reh’g and reh’g en banc denied (Fed. Cir. 2002)); see also Shelkofsky v. United States, 119 Fed.Cl. 133, 139 (2014) (“[WJhile the court may excuse ambiguities in a pro se plaintiffs complaint, the court ‘does not excuse [a complaint’s] failures.’ ”) (quoting Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995)); Harris v. United States, 113 Fed.Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less-stringent standard, such leniency ‘with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.’”) (quoting Minehan v. United States, 75 Fed.Cl. at 253).
It is well established that “ ‘subject-matter jurisdiction,, because it involves a-court’s power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S. -; 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed.Cir.2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a ease.”) (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed.Cir.1990)); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[Cjourts must always look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med. Ctr., — U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235 (“The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n. 1 (Fed.Cir.2012) (“An objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment,” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07, 126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed.Cir.2008) (“[A]ny party may, challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed.Cir.2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where ... neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), *812cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006); see also Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed.Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 F.3d 1330 (Fed.Cir.2010), cert. denied, 562 U.S. 1169, 131 S.Ct. 909, 178 L.Ed.2d 804 (2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed.R.Civ.P. 8(a)(1), (2) (2015); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim,” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n. 9 (Fed.Cir.2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed.2004)). “A plaintiffs factual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting v. United States, 104 Fed.Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955), aff'd, 562 Fed.Appx. 964 (Fed.Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders ‘naked assertionfs]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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) (2012). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir). reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable' under the Tucker Act. The claim must be one for money damages against the United States_” United States v. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 *813L.Ed.2d 40 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed.Cir.), cert. denied, — U.S. -, 134 S.Ct. 269, 187 L.Ed.2d 262 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343 (“[Pjlaintiff must ... identify a substantive source of law that creates the right to recovery of money damages against the United States.”); Golden v. United States, 118 Fed.Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver.... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States, 178 Ct.Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [ (1967) ] (describing illegal exaction claims as claims “in which ‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 580 (1954)).... Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.”) Id.; see also [United States v. ] Testan, 424 U.S. [392,] 401-02 [96 S.Ct. 948, 47 L.Ed.2d 114 (1976)] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulation— does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained,’ ” (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money-mandating” statute.
Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed.Cir.2004); see also Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’ ” United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126; United States v. Mitchell, 463 U.S. at 217, 103 S.Ct. 2961; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.Cir.2008), cert. denied, 555 U.S. 1153, 129 S.Ct. 1038, 173 L.Ed.2d 468 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).”). “ ‘If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed.Cir.2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Peoples v. United States, 87 Fed.Cl. 553, 565-66 (2009).
The plaintiff has asserted violations of his constitutional rights under the *814Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, although Mr. Baber has not alleged specific grounds for these claims in his letter of complaint. Regarding plaintiffs claims for due process under the Fifth and Fourteenth Amendments, the United States Court of Appeals for the Federal Circuit has held that this court does not possess jurisdiction to consider claims arising under the Due Process Clauses of the Fifth and Fourteenth Amendments. See Crocker v. United States, 125 F.3d 1475, 1476 (Fed.Cir.1997) (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.Cir.1995)) (no jurisdiction over a due process violation under the Fifth and Fourteenth Amendments); see also Smith v. United States, 709 F.3d 1114, 1116 (Fed.Cir.) (“The law is well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the payment of money and thus do not provide a cause of action under the Tucker Act.” (citing LeBlanc v. United States, 50 F.3d at 1028), cert. denied, — U.S. -, 134 S.Ct. 259, 187 L.Ed.2d 262 (2013)); In re United States, 463 F.3d 1328, 1335 n.5 (Fed, Cir.) (“[Bjecause the Due Process Clause is not money-mandating, it may pot provide the basis for jurisdiction under the Tucker Act.”), reh’g and reh’g en banc denied (Fed. Cir. 2006), cert. denied sub nom. Scholl v. United States, 552 U.S. 940, 128 S.Ct. 50, 169 L.Ed.2d 243 (2007); Acadia Tech., Inc. & Global Win Tech., Ltd. v. United States, 458 F.3d 1327, 1334 (Fed.Cir. 2006); Collins v. United States, 67 F.3d 284, 288 (Fed.Cir.) (“[T]he due process clause does not obligate the government to pay money damages.”), reh’g denied (Fed Cir. 1995); Mullenberg v. United States, 857 F.2d 770, 773 (Fed.Cir.1988) (finding that the Due Process clauses “do not trigger Tucker Act jurisdiction in the courts”); Murray v. United States, 817 F.2d 1580, 1583 (Fed.Cir.1987) (noting that the Fifth Amendment Due Process clause does not include language mandating the payment of money damages); Harper v. United States, 104 Fed.Cl. 287, 291 n. 5 (2012); Hampel v. United States, 97 Fed.Cl. 235, 238, aff'd, 429 Fed.Appx. 995 (Fed.Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 1105, 181 L.Ed.2d 973 (2012); McCullough v. United States, 76 Fed.Cl. 1, 4 (2006), appeal dismissed, 236 Fed.Appx. 615 (Fed.Cir.), reh’g denied (Fed Cir.), cert. denied, 552 U.S. 1050, 128 S.Ct. 675, 169 L.Ed.2d 529 (2007) (“[Njeither the Fifth Amendment Due Process Clause ... nor the Privileges and Immunities Clause provides a basis for jurisdiction in this court because the Fifth Amendment is not a source that mandates the payment of money to plaintiff.”). Due process claims “must be heard in District Court.” Kam-Almaz v. United States, 96 Fed.Cl. 84, 89 (2011) (citing Acadia Tech., Inc. & Global Win Tech., Ltd. v. United States, 458 F.3d at 1334), aff'd, 682 F.3d 1364 (Fed.Cir.2012); see also Hampel v. United States, 97 Fed.Cl. at 238. Therefore, to the extent that plaintiff is attempting to allege Due Process violations, no such cause of action can be brought in this court.
Similarly, insofar as plaintiffs claims allege a violation of his rights under the Sixth Amendment to the United States Constitution, this Amendment is not money-mandating and, therefore, jurisdiction to review these claims does not lie in this court. See Dupre v. United States, 229 Ct.Cl. 706, 706 (1981) (“[T]he fourth and sixth amendments do not in themselves obligate the United States to pay money damages; and, therefore, we have no jurisdiction over such claims.”); Turpin v. United States, 119 Fed.Cl. 704, 707 (2015) (“To the extent that Ms. Turpin’s complaint brings constitutional challenges under the Due Process Clause and the Sixth Amendment, the Court cannot hear such claims because neither of these constitutional provisions is a money-mandating source.”); Gable v. United States, 106 Fed. Cl. 294, 298 (2012) (“[T]he United States Court of Federal Claims does not have jurisdiction to adjudicate the alleged violations of Plaintiffs Sixth Amendment rights, because that constitutional provision is not money-mandating.”); Treece v. United States, 96 Fed.Cl. 226, 231 (2010) (citing Milas v. United States, 42 Fed.Cl. 704, 710 (1999) (finding that the Sixth Amendment is not money-mandating)); Smith v. United States, 51 Fed.Cl. 36, 38 (2001) (internal citations omitted) (finding that the Court of Federal Claims lacks jurisdiction over Sixth Amendment ineffective assistance of counsel claims), aff'd, *81536 Fed.Appx. 444 (Fed.Cir.), reh’g denied (Fed. Cir.), cert. denied, 537 U.S. 1010, 123 S.Ct. 505, 154 L.Ed.2d 412 (2002).
Moreover, although the plaintiffs complaint is difficult to follow and contains few details, it appears that all of plaintiffs claims are made against the courts of the State of North Carolina. Indeed, plaintiffs complaint begins: “Re: N.C. Court of appeals No. COA12-1121 From Brunswick County File No (S) 08-ers52858 10-crs-3751[.]” The United States Supreme Court has indicated that for suits filed in the United States Court of Federal Claims and its predecessors, “[i]f the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court.” United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citation omitted). Stated differently, “the only proper defendant for any matter before this court is the United States, not its officers, nor any other individual.” Stephenson v. United States, 58 Fed.Cl. 186, 190 (2003) (emphasis in original); see also United States v. Sherwood, 312 U.S. at 588, 61 S.Ct. 767. As none of plaintiffs claims are made against the United States, this court lacks jurisdiction over his complaint. The court does not have jurisdiction over plaintiffs grievances against the State of North Carolina or its public institutions. See Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1308 (Fed.Cir.2007); Reid v. United States, 95 Fed.Cl. 243, 248 (2010) (“The Court of Federal Claims does not have jurisdiction to hear plaintiffs claims naming states, localities, state government agencies, local government agencies and private individuals and entities as defendants.”); Woodson v. United States, 89 Fed.Cl. 640, 649 (2009) (citing Shalhoub v. United States, 75 Fed.Cl. 584, 585 (2007)). Only the United States Supreme Court may review the decisions of state courts, and the Supreme Court may only do so after a state’s highest court has rendered a final decision. See 28 U.S.C. § 1257 (2012) (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari-”); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see also Mora v. United States, 118 Fed.Cl. 713, 716 (2014) (“[T]his court does not have jurisdiction to review the decisions of state courts, federal bankruptcy courts, federal district courts, or federal circuit courts of appeals.”); Jiron v. United States, 118 Fed.Cl. 190, 200 (2014) (citing Johnson v. Way Cool Mfg., L.L.C., 20 Fed.Appx. 895, 897 (Fed.Cir.2001)). Thus, this court lacks jurisdiction over plaintiffs claims.
Furthermore, the limited jurisdiction of this court does not include the power to review criminal convictions. See Joshua v. United States, 17 F.3d 378, 379 (Fed.Cir.1994); Lott v. United States, 11 Cl.Ct. 852, 852-53 (1987); see also Cooper v. United States, 104 Fed.Cl. 306, 312 (2012) While this court may adjudicate claims for damages arising from unjust convictions overturned by other courts, as provided by 28 U.S.C. § 1495, Mr. Baber cannot bring such a claim, because no court has yet reversed or set aside his felony-murder conviction, nor has he attached a pardon or certificate of innocence, as is required to sustain a claim under § 1495. See 28 U.S.C. § 2513 (2012); Abu-Shawish v. United States, No. 14-947C, 120 Fed.Cl. 812, 812-14, 2015 WL 2195187, at *1-2 (Fed.Cl. May 8, 2015); Humphrey v. United States, 52 Fed.Cl. 593, 596 (2002), aff'd, 60 Fed.Appx. 292 (Fed.Cir.2003).
The court notes that this plaintiff, previ-' ously, has filed a number of suits in federal district and appellate courts alleging violations of his constitutional rights arising from his incarceration, all of which have been dismissed or have otherwise lapsed. See, e.g., Order, In re Baber, No. 13-1917, at 1 (4th Cir. Sept. 10, 2013) (dismissing for failure to prosecute)'; Order, Baber v. Daniels, No. 5:13-HC-2135-BO, at 1 (E.D.N.C. Nov. 6, 2013) (dismissing for failure to pay the filing fee or complete an application to proceed in forma pauperis); Order, Baber v. Brunswick Cnty. Det. Ctr., No, 5:11-CT-3213-FL, at 1 (E.D.N.C. Sept. 17, 2012) (dismissing for failure to timely amend the complaint); Order, Baber v. Brunswick Cnty. Jail, No. *8165:11-MC-67, at 1 (E.D.N.C. Oct. 6, 2011) (returning plaintiffs complaint, which was never amended and resubmitted, for failure to comply with local procedural rules).
Initially, plaintiff did not pay the filing fee- or file an application to proceed in forma pauperis when he submitted his complaint. After a copy of the application was mailed to him by the Clerk’s Office, plaintiff subsequently did submit an application to proceed informa pauperis on June 9, 2015, asserting that he is unable to pay the required filing fees, and requesting waiver of court costs and fees, His application indicates that he is presently incarcerated, and, as is required by 28 U.S.C, § 1915(a)(2) (2012), Mr. Baber has included a trust fund account statement covering the six-month period prior to the filing of his complaint along with his application. Mr. Baber, however, indicates that he is presently employed and paid $46.08 per month, “but not always the same every month.” Mr. Baber also indicates he receives “$70.00 a month from my aunt. And sometimes from a women friend.”
In order to provide access to this court to those who cannot pay the filing fees mandated by RCFC 77.1(e) (2014), the statute at 28 U.S.C. § 1915 permits a court to allow plaintiffs to file a complaint without payment of fees or security under certain circumstances. The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is “unable to pay such fees or give security therefor.” Determination of what constitutes “unable to pay” or unable to “give security therefor,” and, therefore, whether to allow a plaintiff to proceed in forma pauperis is left to the discretion of the presiding judge, based on the information submitted by the plaintiff or plaintiffs. See, e.g., Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 217-18, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); Fuentes v. United States, 100 Fed.Cl. 85, 92 (2011). In Fiebelkorn v. United States, the United States Court of Federal Claims indicated:
[T]he threshold for a motion to proceed in forma pauperis is not high: The statute requires that the applicant be “unable to pay such fees.” 28 U.S.C. § 1915(a)(1), To be “unable to pay such fees” means that paying such fees would constitute a serious hardship on the plaintiff, not that.- such payment would render plaintiff destitute.
Fiebelkorn v. United States, 77 Fed.Cl. 59, 62 (2007); see also Hayes v. United States, 71 Fed.Cl. 366, 369 (2006). Although Mr. Ba-ber’s income level may qualify him for in forma pauperis status, -as discussed above, his complaint is being dismissed for lack of jurisdiction.
CONCLUSION
. For the foregoing reasons, plaintiffs complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.
. Capitalization, grammar, and punctuation errors are quoted in this Order as they appear in plaintiff’s submissions.
. In his letter of complaint filed with this court, the plaintiff requests, "[w]herefore the Plaintiff prays that his Letter of Complaint be construed AS liberal AS THE LAW ALLOWS.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218517/ | Pro Se Plaintiff; In Forma Pauperis Application; Lack of Subject Matter Jurisdiction.
ORDER
MARIAN BLANK HORN, Judge
On June 4, 2015, plaintiff Dallas Matthew Alston-Bullock filed a one and one-third page, handwritten pro se letter in the United States Court of Federal Claims, along with an application to proceed in forma pauperis, to which he attached a trust fund account statement from the North Carolina Department of Public Safety.
The full complaint reads as follows:1
*401) 1 Dallas Bullock claim and demand a Judgment, against the United States. In an amount of $ 400,000 for an unjust conviction and Imprisonment. Which was given to me by way of plea, Which I was tricked and that is unjust. My lawyer took my trust in him and used it against me. He knew by me trusting in him I would not question him, about what I was signing.
2) I was given 240 months and a miximum of 270 months for Second Degree Murder on 1/19/08. Which to the most I should have been charged with, An accessory charge. The weapon that was used as mine came back without my fingerprints.
3) They gave me an aggravating factor under 15A-1340.16 marked as -number 15. On my Sheet which says I took advantage of a position, of trust or confidence, including a domestic relationship, to commit the offens. Which I had never seen or meet the young man before in my' life. My lawyer done to me what they are saying I done to that young man. Which makes me not knowingly Signing a Plea if he would haved told me. I would not have sign the Plea under those grounds, cause I did not know the young man.
4) They gave me a Plea of Guilty of Second Degree Murder on 1/19/08 the G.S. No is 14-17 Common Law. (F)32. This was very unjust to me and my Family cause I have been put here. Unjustly and falsly under grounds I knew nothing about. I put my trust in my lawyer which I should not have done. I really thought he was trying to help me but was not.
Thank you very much
Dallas Bullock
0676654
/s/
The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977): Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed.Cl. 516, 524, aff'd, 603 Fed.Appx. 947 (Fed.Cir.2015), cert. denied, — U.S. -, 135 S.Ct. 1909, 191 L.Ed.2d 766 (2015). “However, ‘“[t]here is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.” ’ ” Lengen v. United States, 100 Fed.Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975))); see also Bussie v. United States, 96 Fed.Cl. 89, 94, aff'd, 443 Fed.Appx. 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed.Cl. 249, 253 (2007), “While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States, 93 Fed.Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9, 101 S.Ct. 173 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.”), reh’g and reh’g en banc denied (Fed. Cir. 2002)); see also Shelkofsky v. United States, 119 Fed.Cl. 133, 139 (2014) (“[W]hile the court may excuse ambiguities in a pro se plaintiffs complaint, the court ‘does not excuse [a complaint’s] failures.’ ” (quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995))); Harris v. United States, 113 Fed.Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less stringent standard, such leniency ‘with respect to mere *41formalities does not relieve the burden to meet jurisdictional requirements.’ ” (quoting Minehan v. United States, 75 Fed.Cl. at 253)),
Even granting the more liberal construction afforded to pro se plaintiffs, it is not clear from the assertions in Mr. Bullock’s vague and confused complaint what would be the basis for this court’s jurisdiction. It is well established that “ ‘subject-matter jurisdiction, because it involves a court’s power to hear a ease, can never be forfeited or waived.’ ” (Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press,” Henderson ex rel. Henderson v. Shinseki 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S.-, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or- have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a ease.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng’g. Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Aviburn Reg’l Med. Ctr., - U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013): see also Arbatigh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235 (“The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a court’s subject matter jurisdiction can be raised by any.party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07, 126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235); Folden v. United States. 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed. Cir. 2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where ... neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir. 2004) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in part sub nom. Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006)); see also Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 F.3d 1330 (Fed. Cir. 2010). cert. denied, 562 U.S. 1169, 131 S.Ct. 909, 178 L.Ed.2d 804 (2011).
*42Pursuant to the Rules of the United States Court of Federal Claims (RCFC) and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed. R. Civ. P. 8(a)(1), (2) (2015); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). “A plaintiffs factual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’ ” Three S Consulting v. United States, 104 Fed.Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955), aff'd, 562 Fed.Appx. 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do,’ 550 U.S. at 555 [127 S.Ct. 1955]. Nor does a complaint suffice if it tenders ‘naked assertion^]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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) (2012). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States_” United States v. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.). cert. denied, - U.S. -, 134 S.Ct. 259, 187 L.Ed.2d 262 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343 (“[P]laintiff must ... identify a substantive source of law that creates the right to recovery of money damages against the United States.”); Gold*43en v. United States, 118 Fed.Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver.... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [ (1967) ] (describing illegal exaction claims as claims “in which ‘the Government has the citizen’s money in its pocket’ ”) (quoting Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 580 (1954)).... Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Id.; see also [United States v.] Testan, 424 U.S. [392,] 401-02 [96 S.Ct. 948, 47 L.Ed.2d 114 (1976)] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulation— does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money-mandating” statute.
Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see also Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 106 (2012).
Although Mr. Bullock’s brief letter states that plaintiff is seeking “a Judgment, against the United States,” in the amount of $400,000.00, Mr. Bullock’s substantive claims appear to be directed against the State of North Carolina and the North Carolina state courts in which he was convicted. This court, however, lacks jurisdiction over claims against the state of North Carolina or the North Carolina courts. The United States Supreme Court has indicated that for suits filed in the United States Court of Federal Claims and its predecessors, “[i]f the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court.” United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citation omitted). Stated differently, “the only proper defendant for any matter before this court is the United States, not its officers, nor any other individual.” Stephenson v. United States, 58 Fed.Cl. 186, 190 (2003) (emphasis in original); see also United States v. Sherwood, 312 U.S. at 588, 61 S.Ct. 767. Thus, the court does not have jurisdiction over plaintiffs grievances against the State of North Carolina, or its public institutions. See Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1308 (Fed. Cir. 2007); Reid v. United States, 95 Fed.Cl. 243, 248 (2010) (“The Court of Federal Claims does not have jurisdiction to hear plaintiffs claims naming states, localities, state government agencies, local government agencies and private individuals and entities as defendants.”); Gharb v. United States, 112 Fed.Cl. 94, 96 (2013) (quoting Shalhoub v. United States, 75 Fed.Cl. 584, 585 (2007) (“ ‘When a plaintiffs complaint names private parties, or state agencies, rather than federal agencies, this court has no jurisdiction to hear those allegations.’ ”)); Woodson v. United States, 89 Fed.Cl. 640, 649 (2009) (citing Shalhoub v. United States, 75 Fed.Cl. at 585).
Only the United States Supreme Court may review the decisions of state courts, and the Supreme Court may only do so after a state’s highest court has rendered a final decision. See 28 U.S.C. § 1257 (2012) (“Final *44judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari_”); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see also Mora v. United States, 118 Fed.Cl. 713, 716 (20Í4) (“[TJhis court does not have jurisdiction to review the decisions of state courts, federal bankruptcy courts, federal district courts, or federal circuit courts of appeals.”); Jiron v. United States, 118 Fed.Cl. 190, 200 (2014) (citing Johnson v. Way Cool Mfg., L.L.C., 20 Fed.Appx. 895, 897 (Fed. Cir. 2001)). As none of plaintiffs claims are made against the United States, this court lacks jurisdiction over his complaint.
To the extent that Mr. Bullock may be raising a claim of ineffective assistance of counsel and a violation of his rights under the Sixth Amendment to the United States Constitution, the claim is not one over which the court has jurisdiction. The Sixth Amendment is not money-mandating and, therefore, jurisdiction to review these claims does not lie in this court. See Dupre v. United States, 229 Ct.Cl. 706, 706 (1981) (finding that the court lacks jurisdiction over plaintiffs Sixth Amendment claims because the Sixth Amendment is not money-mandating); Turpin v. United States, 119 Fed.Cl. 704, 707 (2015) (“To the extent that Ms. Turpin’s complaint brings constitutional challenges under ... the Sixth Amendment, the Court cannot hear such claims....”); Gable v. United States, 106 Fed.Cl. 294, 298 (2012) (“[T]he United States Court of Federal Claims does not have jurisdiction to adjudicate the alleged violations of Plaintiffs Sixth Amendment rights, because that constitutional provision is not money-mandating.”); Treece v. United States, 96 Fed.Cl. 226, 231 (2010) (citing Milas v. United States, 42 Fed.Cl. 704, 710 (1999) (finding that the Sixth Amendment is not money-mandating)); Smith v. United States, 51 Fed.Cl. 36, 38 (2001) (internal citations omitted) (finding that the Court of Federal Claims lacks jurisdiction over Sixth Amendment ineffective assistance of counsel claims), aff'd, 36 Fed. Appx. 444 (Fed. Cir.), reh’g denied (Fed. Cir.), cert. denied, 537 U.S. 1010, 123 S.Ct. 505, 154 L.Ed.2d 412 (2002).
Although Mr. Bullock suggests in his complaint that he was unjustly convicted, the jurisdiction of this court also does not include the power to review criminal convictions. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); Lott v. United States, 11 Cl.Ct. 852, 852-53 (1987); see also Cooper v. United States, 104 Fed.Cl. 306, 312 (2012); Dethlefs v. United States, 60 Fed.Cl. 810, 814 (2004) (citing Lucas v. United States, 228 Ct.Cl. 862, 863 (1981)); Humphrey v. United States, 52 Fed.Cl. 593, 596 (2002) (“This Court has no authority to re-examine in detail the facts surrounding a conviction or imprisonment; such matters are within the sole discretion of the appropriate (usually district) court or executive officer with the authority to reverse, set aside, or pardon a claimant’s original conviction.”), aff'd, 60 Fed.Appx. 292 (Fed. Cir. 2003). Therefore, the court lacks the jurisdiction to consider plaintiffs apparent unjust conviction claim.
Along with his pro se complaint, plaintiff submitted an application to proceed informa pauperis, asserting that he is unable to pay the required filing fees, and requesting waiver of coui't costs and fees. On his application, plaintiff indicates that he is not employed, has not received income from any source in the last twelve months, and has no cash or money in any bank accounts, nor does he own any real estate, stocks, or other valuable assets. Mr. Bullock’s application further indicates that he is presently in prison. Plaintiff included a trust fund account statement from the North Carolina Department of Public Safety, covering the six-month period prior to the filing of his complaint, along with his application to proceed informa pauperis.
In order to provide access to. this court to those who cannot pay the filing fees mandated by RCFC 77.1(c) (2014), the statute at 28 U.S.C. § 1915 permits a court to allow plaintiffs to file -a complaint without payment of fees or security under certain circumstances. The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is “unable to pay *45such fees or give security therefor.” Determination of what constitutes “unable to pay” or unable to “give security therefor,” and, therefore, whether to allow a plaintiff to proceed informa pauperis, is left to the discretion of the presiding judge, based on the information submitted by the plaintiff or plaintiffs. See, e.g., Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 217-18, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); Fuentes v. United States, 100 Fed.Cl. 85, 92 (2011). In Fiebelkom v. United States, the United States Court of Federal Claims Indicated:
[T]he threshold for a motion to proceed in forma pauperis is not high: The statute requires that the applicant be “unable to pay such fees.” 28 U.S.C. § 1915(a)(1). To be “unable to pay such fees” means that paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute.
Fiebelkorn v. United States, 77 Fed.Cl. 59, 62 (2007); see also Hayes v. United States, 71 Fed.Cl. 366, 369 (2006). Although Mr. Bullock’s income level might qualify him for in forma pauperis relief, as discussed above, his complaint is being dismissed for lack of jurisdiction.
For the foregoing reasons, the plaintiffs complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.
. Capitalization, grammar, spelling and punctuation errors are quoted in this Order as they appear in plaintiff’s submissions, | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218518/ | Pro Se; Rule 12(b)(1); Subject-Matter Jurisdiction
MEMORANDUM OPINION AND ORDER
LYDIA KAY GRIGGSBY, Judge
I. INTRODUCTION
Pro se plaintiff, Michael S. Ross, brought this action pursuant to the Social Security Act, 42 U.S.C. §§ 301-1397mm (2012), seeking monetary damages related to his social security retirement benefits. The government moved, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”), to dismiss plaintiffs complaint for lack of subject-matter jurisdiction. For the reasons set forth below, the Court GRANTS the government’s motion to dismiss.
II. FACTUAL PROCEDURE AND BACKGROUND1
A. Factual Background
On March 9, 2015, plaintiff filed a complaint in this Court. See generally Compl. In his complaint, plaintiff alleges (1) that the Social Security Administration (“SSA”) improperly determined that he received over-payments on his social security retirement benefits; (2) that the amounts of the alleged overpayments are incorrect; and (3) that the SSA owes plaintiff payment for benefits withheld by the agency. Compl. at 8. On April 27, 2015, plaintiff filed a notice of correction in which he provided additional calculations to support his request for compensatory and punitive damages. .Notice of Correction at 1. Plaintiff seeks $31,000 in compensatory damages and $10,000 in punitive damages. Notice of Correction at 1; Compl. at 10.
B. Procedural Background
Prior to filing his complaint with this Court, plaintiff sought review of his claims before the SSA. Compl. at 7. In August 2012, an SSA Administrative Law Judge determined that the SSA had correctly distributed plaintiffs retirement benefits. Id. In October 2014, the SSA Appeals Council agreed. Id. Plaintiff then brought his claim to this Court on March 9, 2015. See generally Compl.
On May 5, 2015, defendant filed a motion in this Court to dismiss plaintiffs complaint for lack of subject-matter jurisdiction pursu*346ant to Rule 12(b)(1). See generally Def. Mot. On June 8, 2015, plaintiff filed a motion for summary judgment as well as other materials which restated his claims against the SSA. See generally Pl. Mot. Plaintiff did not file a timely response to the defendant’s motion to dismiss. As a result, on June 9, 2015, the Court issued an order instructing plaintiff to show cause on or before June 23, 2015, as to why this action should not be dismissed for failure to prosecute pursuant to Rule 41(b). See generally Order to Show Cause. On June 17, 2015, plaintiff tiled a letter with the Court once again restating his claims against the SSA. See generally PL Resp. Order to Show Cause. On June 30, 2015 the United States Court of Appeals for the Federal Circuit, which is located in the same building as this Court, received plaintiffs response to defendant’s motion to dismiss, dated June 16, 2015. See generally Pl. Resp. Def. Mot. Recognizing the mailing error, plaintiffs response was redirected to this' Court and filed on July 7, 2015. Id. In his response, plaintiff again restates the calculation of his claim and indicates that the district courts have jurisdiction over this matter. Id. at 4-7. Plaintiff further asks this Court to transfer the matter to the United States District Court for the Central District of California. Id. at 7.
III. STANDARDS OF REVIEW
A. Pro Se Litigants
The Court acknowledges that plaintiff is proceeding pro se, without the benefit of counsel, and therefore is “not expected to frame issues with the precision of a common law pleading.” Roche v. U.S. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro se plaintiffs are generally afforded greater leeway in their pleadings than litigants represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers”). Accordingly, the Court should thoroughly examine plaintiffs complaint in an attempt to discern whether “plaintiff has a cause of action somewhere displayed.” Ruderer v. United States, 412 F.2d 1285, 1292 (Ct. Cl. 1969). However, there “is no duty for the trial court to create a claim which [plaintiff] has not spelled out in his pleadings.” Lengen v. United States, 100 Fed.Cl. 317, 328 (2011) (citation omitted). Although a “pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, ... the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States, 93 Fed.Cl. 163, 165 (2010) (citations omitted). Therefore, while the Court may excuse ambiguities in plaintiffs complaint, the Court does not excuse the complaint’s failures. See Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995); see also Denies v. United States, 52 Fed.Cl. 365, 368 (2002) (“[T]he leniency afforded pro se litigants with respect to mere formalities does not relieve them of jurisdictional requirements.”).
B. Jurisdiction
It is well established that subject-matter jurisdiction is “a threshold question that must be resolved ... before proceeding to the merits” of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). When considering whether to dismiss an action for lack of subject-matter jurisdiction, the Court is “obligated to assume all factual allegations [in the complaint] to be true and to draw all reasonable inferences in plaintiffs favor.” Henke, 60 F.3d at 797. However, plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence. Reynolds1 v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). If subject-matter jurisdiction is found to be lacking, the Court must dismiss the action. RCFC 12(b)(1).
The jurisdiction of the United States Court of Federal Claims is established by the Tucker Act, which provides:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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 *347the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1) (2012). The Tucker Act, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.... [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). And so, to pursue a substantive right under the Tucker Act, a plaintiff must identify a money-mandating constitutional provision, statute or regulation, or an express or implied contract with the United States. Cabral v. United States, 317 Fed.Appx. 979, 981 (Fed. Cir. 2008).
IV. DISCUSSION
A. This Court Lacks Subject-Matter Jurisdiction to Consider Plaintiffs Claims
Defendant moved to dismiss plaintiffs complaint on the ground that this Court does not possess jurisdiction to consider plaintiffs claims against the SSA. Def. Mot. at 3-6. For the reasons discussed below, the Court agrees that it does not possess jurisdiction and that it, therefore, must dismiss plaintiffs complaint for lack of subject-matter jurisdiction.
1. The Court Does Not Possess Jurisdiction to Consider Plaintiffs Social Security Act Claims
The Court recognizes that plaintiff is proceeding pro se, and so he is “not expected to frame issues with the precision of a common law pleading.” Roche, 828 F.2d at 1558. Although “a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney ... the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence....” Riles, 93 Fed.Cl. at 165 (citations omitted).
Plaintiff alleges that the SSA improperly determined that he received over-payments on his social security retirement benefits, that the amounts of the alleged overpayments are incorrect, and that the SSA in fact owes him payment for benefits withheld by the agency. Compl. at 8. This Court has long recognized that it does not possess jurisdiction to entertain such claims. See Marcus v. United States, 909 F.2d 1470, 1471 (Fed. Cir. 1990); see also Addams-More v. United States, 81 Fed.Cl. 312, 315 (2008). The Social Security Act provides in pertinent part that:
[An] action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia.
42 U.S.C. § 405(g) (2012 & Supp. 2015). “Indeed, the Social Security Act confers exclusive jurisdiction upon federal district court for actions regarding Social Security benefits.” Treece v. United States, 96 Fed.Cl. 226, 230 (2010) (citing 42 U.S.C. § 405(g)-(h)). The Social Security Act makes clear that a challenge to a social security benefits decision must be brought in 'a United States District Court. See 42 U.S.C. § 405(g); see also Marcus, 909 F.2d at 1471. The Social Security Act further provides that “[n]o findings of fact or decision of [the SSA] shall be reviewed by any person, tribunal, or government agency except as herein provided.” 42 U.S.C. § 405(h). And so, this Court does not have jurisdiction to consider plaintiffs claims seeking relief under the Social Security Act. See Treece, 96 Fed.Cl. at 232.
2. Plaintiff Fails to Establish an Alternative Basis for Jurisdiction
Dismissal of this action is also appropriate because plaintiff fails to establish any other valid jurisdictional basis for bringing his claims in this Court. In his complaint, plaintiff points to four additional grounds for jurisdiction: (1) the Declaratory Judgment Act, 28 U.S.C. § 2201; (2) the federal mandamus statute, 28 U.S.C. § 1361; (3) the federal question statute, 28 U.S.C. § 1331; and (4) the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06. Compl. at 2. But, for the *348reasons discussed below, none of these provisions provide a basis for this Court to exercise jurisdiction over plaintiffs claims.
As an initial matter, the Declaratory Judgment Act, 28 U.S.C. § 2201, does not confer this Court with subject-matter jurisdiction to consider plaintiffs claims. The United States Court of Appeals for the Federal Circuit has held that the Declaratory Judgment Act does not apply to the United States Court of Federal Claims:
The Court of Federal Claims has never been' granted general authority to issue declaratory judgments, and to hold that the Court of Federal Claims may issue a declaratory judgment in this ease, unrelated to any money claim pending before it, would effectively override Congress’s decision not to make the Declaratory Judgment Act applicable to the Court of Federal Claims.
Nat’l Air Traffic Controllers Ass’n v. United States, 160 F.3d 714, 716-17 (Fed. Cir. 1998); see also Hoag v. United States, 99 Fed.Cl. 246, 252 (2011). Under the Declaratory Judgment Act, “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). However, “the Declaratory Judgment Act is not an independent basis for subject matter jurisdiction.” StoneEagle Servs., Inc. v. Gillman, 746 F.3d 1059, 1062 (Fed. Cir. 2014). The Act instead is a “procedural vehicle” through which plaintiff may request a remedy after establishing separate grounds for jurisdiction.’ Id. And so, plaintiff cannot rely upon the Declaratory Judgment Act to establish jurisdiction here.
Plaintiffs reliance upon the federal mandamus statute, 28 U.S.C. § 1361, is equally misplaced. See Compl. at 2. The federal mandamus statute provides that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Courts have long recognized that references to “district courts” generally mean the Article III courts. See Int’l Longshoremen’s & Warehousemen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 240-41, 72 S.Ct. 235, 96 L.Ed. 275 (1952); see also Ledford v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002) (confirming that the United States Court of Federal Claims, as a non-Article III court, cannot hear matters solely in the purview of the district courts). As a non-Article III court, see 28 U.S.C. § 171(a) (2012) (designating this Court as an Article I court), this Court does not have authority to issue a writ of mandamus under section 1361. See 28 U.S.C. § 1361 (granting mandamus powers only to the Article III courts); Del Rio v. United States, 87 Fed.Cl. 536, 540 (2009). And so, plaintiff cannot rely upon the federal mandamus statute to confer to this Court jurisdiction over his complaint, Id.
In addition, the statute governing federal question jurisdiction does not provide this Court with jurisdiction to entertain plaintiffs complaint. The federal question statute states, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331. Where the adjudication of a type of claim has been granted to the district courts exclusively, this Court has no jurisdiction to hear the case and must dismiss the matter. See Del Rio, 87 Fed.Cl. at 540-41. As this Court has observed, “section 1331 cannot satisfy the Court of Federal Claims money-mandating requirement for jurisdiction. Therefore, plaintiff cannot use section 1331 to create jurisdiction in this court.” Hernandez v. United States, 38 Fed.Cl. 532, 537-38 (1997). Accordingly, this Court lacks jurisdiction to consider plaintiffs claims.
Finally, the APA does not grant this Court jurisdiction to hear plaintiffs claims. . It is well established that “[t]he Administrative Procedure Act does not establish jurisdiction in this court over claims for money.” Union Bank & Trust Co. v. United States, 27 Fed.Cl. 403, 404 (1992), aff'd, 6 F.3d 788 (Fed. Cir. 1993) (citation omitted). The APA only “provides the framework for determining when a court may review an agency’s determination.” Ste-*349gall v. United States, 19 Cl.Ct. 765, 769 (1990) (citing 5 U.S.C. §§ 701-06 (1988)). “Absent any pleading of a statute, regulation, constitutional provision or other basis mandating payment by the government ... [a claim is] insufficient to invoke the jurisdiction of the Court of Federal Claims.” Ward v. United States, 76 Fed.Appx. 941, 944 (Fed. Cir. 2003). Because the APA does not confer this Court with jurisdiction to entertain plaintiffs claims, the Court must dismiss plaintiffs complaint.
In sum, when viewing plaintiffs complaint in the most favorable and deferential light, the complaint fails to articulate any claim within this Court’s limited jurisdiction. Because jurisdiction is a “threshold matter,” this matter may proceed no further in this Court. Copar Pumice Co., Inc. v. United States, 112 Fed.Cl. 515, 527 (2013) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)).
B. Transfer to a District Court Is Not Appropriate
Plaintiff also requests that the Court transfer this matter to the United States District Court for the Central District of California. PL Resp. Def. Mot. at 7. This-Court may transfer a ease to a different court if it lacks jurisdiction, recognizes that another court does have jurisdiction, and “if it is in the interest of justice” to transfer the matter. 28 U.S.C. § 1631 (2012). Under such circumstances, the Court may transfer the matter to “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 Court of Guam, the District Court of the Virgin Islands, the ... [United States Court of Federal Claims], and the Court of International Trade.” Id. § 610. The United States Court of Appeals for the Federal Circuit has held that the phrase “in the interest of justice” in section 1631 refers to whether the claim is frivolous. See Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987) (citation omitted); see also Dillard v. United States, No. 14-1203C, 2015 WL 739934, at *4 (Fed. Cl. Feb. 20, 2015). Put another way, this Court should transfer the matter unless it finds that the ease involves “legal points not arguable on the merits” or that the “disposition is obvious.” Galloway Farms, 834 F.2d at 1000-01 (citations omitted). Consistent with this explanation, the transferring court should make the transfer only if (1) the transferor court lacks jurisdiction; (2) the claim could have been brought in the transferee court at the time it was filed; and (3) transfer is in the interest of justice. Zoltek Corp. v. United States, 672 F.3d 1309, 1314 (Fed. Cir. 2012).
As explained above, this Court lacks jurisdiction to consider plaintiffs claim. The Social Security Act limits the scope of judicial review of a final decision by the SSA and creates an exclusive remedy procedure. 42 U.S.C. § 405(g)-(h). Appeal from the SSA must occur within 60 days of the mailing notice of the final decision. Id. § 405(g). The SSA Appeals Council, the final stage of administrative review, 20 C.F.R. § 404.981 (2015), made its determination on plaintiffs claim in October 2014. Compl. at 7. Plaintiff filed his complaint on March 9, 2015, long after the period to file an appeal of the SSA’s decision had elapsed. See generally Compl. Because plaintiffs complaint is untimely, the United States District Court for the Central District of California would not have jurisdiction to consider plaintiffs claims. See 42 U.S.C. § 405(g); see generally Compl. It is, therefore, unnecessary to determine whether transfer of this matter would be in the interest of justice. And so, the Court must deny plaintiffs request for transfer and dismiss plaintiffs complaint. RCFC 12(b)(1); see 28 U.S.C. § 1631.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to dismiss.
The Clerk’s Office is directed to ENTER final judgment in favor of defendant, DISMISSING the complaint.
No costs.
IT IS SO ORDERED.
. The facts recounted in this Memorandum Opinion and Order are taken from plaintiff’s complaint, cited in this Memorandum Opinion and Order as ("Compl. at-”), plaintiff's notice of correction ("Notice of Correction at- — ”), defendant’s motion to dismiss ("Def. Mot. at -”), plaintiff’s response to order to show cause ("Pl. Resp. Order to Show Cause at —”), and plaintiff’s response to defendant’s motion to dismiss ("PI. Resp. Def. Mot. at —”). Except where otherwise noted, the facts recited here are undisputed. . The Court accepts the undisputed facts recited in the complaint as true. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218519/ | Pro Se Plaintiff; In Forma Pauperis Application; Lack of Subject Matter Jurisdiction; Injunctive Relief.
ORDER
HORN, J.
FINDINGS OF FACT
On July 6, 2015, plaintiff Francis Edward Veasey filed a two-and-a-half-page pro se complaint in the United States Court of Federal Claims, along with an application to proceed in forma pauperis. Plaintiffs complaint was filed “against the United States and its agency, the Department of Veteran Affairs.” Plaintiffs complaint, which seeks an unidentified amount of monetary damages and “emergency injunctive relief in the form of a cease and desist order to be directed to the said agency for the violation of Constitutional Protections ensuring Due Process and adverse actions in the absence of Probable Cause,” appears to arise from the implementation of certain restrictions on how Mr. Veasey would be allowed to use the Philadelphia Veterans Administration Medical Center (VAMC), a facility operated by the United States Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania.
In a March 18, 2015 letter sent to plaintiff, which was attached as an exhibit to plaintiffs complaint, Laszlo Gyulai, MD, Chair of the Philadelphia VAMC’s Disruptive Behavior Committee, informed plaintiff that he would be subject to certain behavioral restrictions governing his future visits to the VAMC, effective immediately. The implementation of these restrictions was apparently prompted by an incident on March 12, 2015, in which Mr. Veasey threatened .to physically harm VAMC staff during a visit to the Philadelphia VAMC. Specifically, the March 18 letter informs the plaintiff that:
During all of your future visits to the Philadelphia VAMC you may be seen in the presence of a police officer stationing [sic] in the hallway close to the room in which you are examined. We would ask you to present yourself to the police when you arrive to the Philadelphia VAMC so you can be escorted to your visit. If you become disruptive, Philadelphia VAMC Police will immediately escort you from the Philadelphia VAMC grounds and you will not be permitted to return that day, except for evaluation of potentially life-threatening emergencies. You may return at the time of your next appointment. However, continued disruptive, threatening or violent behavior may result in additional restrictions.
According to the letter, these restrictions were approved by the facility’s Chief of Staff and would remain in place for two years, but could be relaxed sooner if recommended by plaintiffs care providers. The letter also indicated that the restrictions did not reduce Mr. Veasey’s eligibility for any medically appropriate health care. Additionally, the letter informed Mr. Veasey of his right to appeal the decision to implement these restrictions to the Philadelphia VAMC’s Chief of Staff within thirty days. According to his complaint, upon receiving the letter, plaintiff “registered Disagreement *587with the DVA [Department of Veterans Affairs] actions both by letters to the affected and instituting parties, and in informal conversations with medical professionals, psychological evaluators, and Patient Advocates.” According to plaintiffs complaint, having not received a response, plaintiff claims “a formal Notice of Disagreement [was] sent to the designated DVA Regional Office in Philadelphia, PA on the 29th of June, 2015.”
Mr. Veasey’s apparent next course of action was to file a complaint in this court. In his complaint, plaintiff makes a number of claims against the United States and the VA relating to the restrictions placed on his use of the VAMC. In particular, plaintiff claims that the restrictions precipitated the following “Adverse Effects”:
The Restriction, in effect, becomes an armed prevention of the acquisition of benefits and treatment for disability incurred while in service to the United States and rated at 100%, an effectual total disability.
The Restriction produces a climate of tension and hesitancy on the part of medical personnel, benefits workers, and other patients and clients of the Department.
The Restriction presents an opportunity for authorities to apprehend the Plaintiff in the absence of probable cause directly due to the circumvention of Due Process Protections.
The restriction causes harm to the Plaintiff in that reputation and furtherance of business with government are impeded in an unlawful manner.
The imposition of the Restriction prevents representation as provided by the co-located Disabled American Veterans service organization in both locations.
To redress these claimed injuries, plaintiff seeks “emergency injunctive relief in the form of a cease and desist order,” an “explicit prohibition to retaliation for this filing in the prevention to the acquisition of medical treatment, benefit application and approval, or the receipt of DVA [Department of Veterans Affairs] Compensation,” and “any and all Compensatory and Punitive Damages that the court finds appropriate.”
DISCUSSION
The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d, 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed.Cir.2014); Diamond v. United States, 115 Fed.Cl. 516, 524 (2014), aff'd, 603 Fed.Appx. 947 (Fed.Cir.). cert. denied — U.S. -, 135 S.Ct. 1909, 191 L.Ed.2d 766 (2015). “However, ‘ “[t]here is no duty on the part of the-trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.” ’ ” Lengen v. United States, 100 Fed.Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975))); see also Bussie v. United States, 96 Fed.Cl. 89, 94, aff'd, 443 Fed.Appx. 542 (Fed.Cir.2011); Minehan v. United States, 75 Fed.Cl. 249, 253 (2007). “While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States, 93 Fed.Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9, 101 S.Ct. 173 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.”), reh’g and reh’g en banc denied (Fed.Cir.2002)); see also Shelkofsky v. United States, 119 Fed.Cl. 133, 139 (2014) *588(“[W]hile the court may excuse ambiguities in a pro se plaintiffs complaint, the court ‘does not excuse [a complaint’s] failures.’ ” (quoting Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995))); Harris v. United States, 113 Fed.Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less stringent standard, such leniency ‘with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.’ ” (quoting Minehan v. United States, 75 Fed.Cl. at 253)).
Even granting the more liberal construction afforded to a complaint filed by a pro se plaintiff, it is not clear from Mr. Veasey’s brief complaint what would be the grounds for this court’.s jurisdiction over his various claims. It is well established that “‘subject-matter jurisdiction, because it involves a court’s power to hear a ease, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed.Cir.2001) (“[A] court has a 'duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed.Cir.1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med. Ctr., - U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235 (“The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n. 1 (Fed.Cir.2012) (“An objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07, 126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed.Cir.2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235: Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed.Cir.2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where ... neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006); see also Avid Identification Sys., *589Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed.Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 F.3d 1330 (Fed.Cir.2010). cert. denied, 562 U.S. 1169, 131 S.Ct. 909, 178 L.Ed.2d 804 (2011).
Pursuant to the Rules of the Court of Federal Claims (RCFC) and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed.R.Civ.P. 8(a)(1), (2) (2015); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed.Cir.1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaidley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Conclusory allegations of-law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n. 9 (Fed.Cir.2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed.2004)). “A plaintiffs factual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting v. United States, 104 Fed.Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955), aff'd, 562 Fed.Appx. 964 (Fed.Cir.), reh’g denied (Fed.Cir.2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
The Tucker Act grants jurisdiction to this court as follows:'
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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) (2012). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir.). reh’g and reh’g en banc denied (Fed.Cir.2007). cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States....” United States v. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed.Cir.), cert. de*590nied, — U.S. -, 134 S.Ct. 259, 187 L.Ed.2d 262 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d at 1343 (“[P]laintiff must ... identify a substantive source of law that creates the right to recovery of money damages against the United States.”); Golden v. United States, 118 Fed.Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver.... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [ (1967) ] (describing illegal exaction claims as claims “in which ‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 580 (1954))....) Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Id.; see also [United States v.] Testan, 424 U.S. [392,] 401-02 [96 S.Ct. 948, 47 L.Ed.2d 114 (1976)] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim — whether it be the Constitution, a statute, or a regulation— does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money-mandating” statute.
Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed.Cir.2004); see also Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’ ” United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126; United States v. Mitchell, 463 U.S. at 217, 103 S.Ct. 2961; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.Cir.2008), cert. denied, 555 U.S. 1153, 129 S.Ct. 1038, 173 L.Ed.2d 468 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law {e.g., statutes or contracts).”). “ ‘If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.’ ” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed.Cir.2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Peoples v. United States, 87 Fed.Cl. 553, 565-66 (2009).
Plaintiff asserts in his complaint that he seeks relief “for the violation of Constitutional Protections ensuring Due Process and adverse actions in the absence of Probable *591Cause.” This court, however, lacks jurisdiction over these allegations of constitutional claims. To the extent that plaintiff might be asserting that the restrictions placed on his use of the VAMC create “an opportunity for authorities to apprehend the Plaintiff in the absence of probable cause,” in theory, such a claim would be based on Fourth Amendment rights, which provision of the Constitution is not money-mandating, and, therefore, such claims are not within this court’s jurisdiction. See LaChance v. United States, 15 Cl.Ct. 127, 130 (1988) (“[T]he fourth amendment does not mandate the payment of money by the United States.” (citing Shaw v. United States, 8 Cl.Ct. 796, 800 (1985))); Roberson v. United States, 115 Fed.Cl. 234, 240 (“The Fourth Amendment is not money-mandating.” (citing Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997))), appeal dismissed, 556 Fed.Appx. 966 (Fed.Cir.2014); Haka v. United States, 107 Fed.Cl. 111, 113—14 (2012); Kam-Almaz v. United States, 96 Fed.Cl. 84, 89 (2011) (“[T]his Court does not have jurisdiction to hear claims contesting the lawfulness of a search and seizure because due process and Fourth Amendment claims are reserved to the District Court.” (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.Cir.1995))), aff'd, 682 F.3d 1364 (Fed.Cir.2012); Treece v. United States, 96 Fed.Cl. 226, 231 (2010) (finding that the Fourth Amendment is not money-mandating (citing Tasby v. United States, 91 Fed.Cl. 344, 346 (2010))); Fry v. United States, 72 Fed.Cl. 500, 507 (2006) (“As a matter of law, the Fourth Amendment’s prohibition on unreasonable search and seizure and the Due Process Clause of the Fifth Amendment are not money-mandating.” (citation omitted)). Therefore, plaintiffs claims based on the Fourth Amendment to the United States Constitution are not within this court’s jurisdiction.
Similarly, to the extent that plaintiffs complaint attempts to assert violations of his right to due process, the United States Court of Appeals for the Federal Circuit has held that this court does not possess jurisdiction to consider claims arising under the Due Process Clauses of the Fifth and Fourteenth Amendments. See Crocker v. United States, 125 F.3d 1475, 1476 (Fed.Cir.1997) (no jurisdiction over a due process violation under the Fifth and Fourteenth Amendments (citing LeBlanc v. United States, 50 F.3d at 1028)); see also Smith v. United States, 709 F.3d at 1116 (“The law is well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the payment of money and thus do not provide a cause of action under the Tucker Act.”); In re United States, 463 F.3d 1328, 1335 n. 5 (Fed.Cir.) (“[B]ecause the Due Process Clause is not money-mandating, it may not provide the basis for jurisdiction under the Tucker Act.”), reh’g and reh’g en banc denied (Fed.Cir.2006), cert. denied sub nom. Scholl v. United States, 552 U.S. 940, 128 S.Ct. 50, 169 L.Ed.2d 243 (2007); Acadia Tech., Inc. & Global Win Tech., Ltd. v. United States, 458 F.3d 1327, 1334 (Fed.Cir.2006); Collins v. United States, 67 F.3d 284, 288 (Fed.Cir.) (“[T]he due process clause does not obligate the government to pay money damages.”), reh’g denied (Fed.Cir.1995); Mullenberg v. United States, 857 F.2d 770, 773 (Fed.Cir.1988) (finding that the Due Process clauses “do not trigger Tucker Act jurisdiction in the courts”); Murray v. United States, 817 F.2d 1580, 1583 (Fed.Cir.1987) (noting that the Fifth Amendment Due Process clause does not include language mandating the payment of money damages); Harper v. United States, 104 Fed.Cl. 287, 291 n. 5 (2012); Hampel v. United States, 97 Fed.Cl. 235, 238, aff'd, 429 Fed.Appx. 995 (Fed.Cir.2011). cert. denied, — U.S. -, 132 S.Ct. 1105, 181 L.Ed.2d 973 (2012); McCullough v. United States, 76 Fed.Cl. 1, 4 (2006), appeal dismissed, 236 Fed.Appx. 615 (Fed.Cir.), reh’g denied (Fed.Cir.), cert. denied, 552 U.S. 1050, 128 S.Ct. 675, 169 L.Ed.2d 529 (2007) (“[N]either the Fifth Amendment Due Process Clause ... nor the Privileges and Immunities Clause provides a basis for jurisdiction in this court because the Fifth Amendment is not a source that mandates the payment of money to plaintiff.”). Due process claims “must be heard in District Court.” Kam-Almaz v. United States, 96 Fed.Cl. at 89 (citing Acadia Tech., Inc. & Global Win Tech., Ltd. v. United States, 458 F.3d at 1334); see also Hampel v. United States, 97 Fed.Cl. at 238. Therefore, *592to the extent that plaintiffs complaint alleges violations of his constitutional rights to due process, no such cause of action can be brought in this court.
Plaintiff also asserts in his complaint that the restrictions placed on his use of the VAMC harmed him in the sense that his “reputation and furtherance of business with government are impeded in an unlawful manner.” These apparent claims of defamation and interference with a business relationship sound in tort, and, therefore, also are outside of the jurisdiction of the court. The Tucker Act expressly excludes tort claims, including those committed by federal officials, from the jurisdiction of the United States Court of Federal Claims. See 28 U.S.C. § 1491(a) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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.”); see also Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343; Alves v. United States, 133 F.3d 1454, 1459 (Fed.Cir.1998); Brown v. United States, 105 F.3d at 623 (“Because Brown and Darnell’s complaints for ‘fraudulent assessments]’ are grounded upon fraud, which is a tort, the court lacks jurisdiction over those claims.”); Golden Pac. Bancorp v. United States, 15 F.3d 1066, 1070 n. 8 (Fed.Cir.), reh’g denied, en banc suggestion declined (Fed.Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994); Hampel v. United States, 97 Fed.Cl. at 238; Jumah v. United States, 90 Fed.Cl. 603, 607 (2009) (“[l]t is well-established that the Court of Federal Claims does not have jurisdiction over tort claims, Here, Mr. Jumah seeks damages for ‘[n]eglect, [misrepresentation, [f]alse [i]mprisonment, [conspiracy, [i]ntentional [i]nflietion of emotional [distress, [¡Invasion of [p]rivacy, [n]egligence and [trespass and [p]unitive [d]amages.’ These are all claims sounding in tort.” (internal citation omitted; all brackets in original)), aff'd, 385 Fed.Appx. 987 (Fed.Cir.2010); Woodson v. United States, 89 Fed.Cl. 640, 650 (2009); Fullard v. United States, 77 Fed.Cl. 226, 230 (2007) (“This court lacks jurisdiction over plaintiffs conspiracy claim because the Tucker Act specifically states that the Court of Federal Claims does not have jurisdiction over claims ‘sounding in tort.’ ”); Edelmann v. United States, 76 Fed.Cl. 376, 379-80 (2007) (“This Court ‘does not have jurisdiction over claims that defendant engaged in negligent, fraudulent, or other wrongful conduct when discharging its official duties’ ... [and] Plaintiffs’ claims of fraud, misrepresentation, slander, perjury, harassment, intimidation, coercion, theft, and defamation, and their claims that the Government deprived Ms. Edelmann of her right to a fair trial, are tort claims.” (quoting Cottrell v. United States, 42 Fed.Cl. 144, 149 (1998))); McCullough v. United States, 76 Fed.Cl. at 3 (2006); Agee v. United States, 72 Fed.Cl. 284, 290 (2006); Zhengxing v. United States, 71 Fed. Cl. 732, 739, aff'd, 204 Fed.Appx. 885 (Fed.Cir.), reh’g denied (Fed.Cir.2006). Therefore, plaintiffs apparent allegations of defamation and interference with business relationships sound in tort and, accordingly, also must be dismissed for lack of jurisdiction.
In addition to seeking “any and all Compensatory and Punitive Damages that the court finds appropriate,” Mr. Veasey appears to seek injunctive relief in the form of “a ‘Cease and Desist’ order directed to the VAMC Philadelphia, The VAROIC [VA Regional Office and insurance Center], also in Philadelphia, and the Department of Veteran Affairs Police Force,” as well as an “explicit prohibition to retaliation for this filing in the prevention to the acquisition of medical treatment, benefit application and approval, or the receipt of DVA Compensation for the referenced Disability.” This court’s ability to grant equitable relief is limited, and does not extend to the sort of injunctive relief requested by Mr. Veasey. See United States v. Tohono O’Odham Nation, 563 U.S. 307, 131 S.Ct. 1723, 1729, 179 L.Ed.2d 723 (2011) (The United States Court of Federal Claims “has no general power to provide equitable relief against the Government or' its officers.”); Massie v. United States, 226 F.3d 1318, 1321 (Fed.Cir.2000) (“Except in strictly limited *593circumstances, see 28 U.S.C. § 1491(b)(2), there is no provision in the Tucker Act authorizing the Court of Federal Claims to order equitable relief.” (citing United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (“cases seeking relief other than money damages from the court of claims have never been ‘within its jurisdiction’ ”) and Placeway Constr. Corp. v. United States, 920 F.2d 903, 906 (Fed.Cir.1990))); James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998), reh’g denied (Fed.Cir.1999) (“[T]he Court of Federal Claims has no power ‘to grant affirmative nonmonetary relief unless it is tied and subordinate to a money judgment.’ ” (quoting Austin v. United States, 206 Ct.Cl. 719, 723, cert. denied, 423 U.S. 911, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975))); Westlands Water Dist. v. United States, 109 Fed.Cl. 177, 192 (2013); Haka v. United States, 107 Fed.Cl. at 113; Halim v. United States, 106 Fed.Cl. 677, 684-85 (2012); Smalls v. United States, 87 Fed.Cl. 300, 307 (2009); Voisin v. United States, 80 Fed.Cl. 164, 178 (2008) (“It is well-established that the Court of Federal Claims generally does not have the authority to entertain declaratory judgment requests.”). In the above captioned case, Mr. Veasey has not identified a jurisdictional basis for this court to entertain the injunctive relief he has requested, and any such claims must also be dismissed.
The court notes that Mr. Veasey has been a frequent litigant in federal courts, filing a number of complaints and a number of appeals, all of which have been dismissed. See In re Francis Veasey, No. 08-8015 (3d Cir. Mar. 6, 2008) (denying petition for writ of mandamus for lack of jurisdiction); Veasey v. Fisher, No. 07-cv-01446, 2008 WL 1758908 (W.D.Pa. Apr. 16,2008) (granting defendant’s dismissal motion because plaintiff had failed to exhaust administrative remedies before filing a civil-rights complaint against prison officials), aff'd, 307 Fed.Appx. 614 (3d Cir.2009); Veasey v. The Att’y Gen. Office Pa., No. 08-CV-00242, 2008 WL 1019731 (E.D.Pa. Apr. 7, 2008) (dismissing two of eight claims in plaintiffs habeas corpus petition for being raised in a prior claim, while giving leave to apply for a certificate of appealability with respect to the others), perm. app. denied, No. 08-2113 (3d Cir. July 11, 2008). reh’g and reh’g en banc denied (3d Cir. Dec. 17, 2008); Veasey v. Connor, No. 01-cv-00523, 2002 WL 31355252 (D.Del. Oct. 17, 2002) (dismissing plaintiffs petition for writ of habeas corpus for lack of subject matter jurisdiction, because plaintiff was not in custody in Delaware at the time petition was filed), appeal dismissed sub nom. Veasey v. Blaine, No. 03-1084 (3d Cir. Apr. 23, 2003): Veasey v. Connon, No. 00-cv-05745 (E.D.Pa. Apr. 3, 2002) (denying plaintiffs petition for writ of habeas corpus on ground that he “has not made a substantial showing of a denial of a constitutional right”), appeal withdrawn sub nom. Veasey v. Blaine, No. 01-1659 (3d Cir. Apr. 17, 2001), appeal withdrawn sub nom. Veasey v. Blaine, No. 01-1720 (3d Cir. Apr. 17, 2001), appeal denied, No. 02-2067 (3d Cir. June 24, 2002); (dismissed because plaintiffs application for certificate of appeal-ability was untimely).
Along with his complaint, plaintiff submitted an application to proceed in forma pau-peris, asserting that he is unable to pay the required filing fees, arid requesting waiver of court costs and fees. In this application, plaintiff indicates that he is unemployed and has not received income from any source in the last twelve months. Plaintiff, however, indicated ‘Tes” in response to a query asking, “Do you own any cash, or do you have money in checking, savings, or any other accounts?” and stated “$500.00 month average” when asked to estimate the total value thereof. Mr. Veasey’s application further provides that he does not own any real estate, stocks, bonds, notes, automobiles, or other valuable assets, does not have any dependents, and is not currently a prisoner.
In order to provide access to this court to those who cannot pay the filing fees mandated by RCFC 77.1(c) (2014), the statute at 28 U.S.C. § 1915 (2012) permits a court to allow plaintiffs to file a complaint without payment of fees or security under certain circumstances. The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility is “unable to pay such fees or give security therefor.” Determination of what constitutes “unable to pay” or unable to “give security therefor,” and, therefore, whether to allow a plaintiff to proceed informa patiperis, is left *594to the discretion of the presiding judge, based on the information submitted by the plaintiff or plaintiffs. See, e.g., Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 217-18, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); Fuentes v. United States, 100 Fed.Cl. 85, 92 (2011). In Fiebelkorn v. United States, the United States Court of Federal Claims indicated:
[T]he threshold for a motion to proceed in forma pauperis is not high: The statute requires that the applicant be “unable to pay such fees.” 28 U.S.C. § 1915(a)(1). To be'“unable to pay such fees” means that paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute.
Fiebelkorn v. United States, 77 Fed.Cl. 59, 62 (2007); see also Hayes v. United States, 71 Fed.Cl. 366, 369 (2006). The court notes that the United. States District Court for the Eastern District of Pennsylvania previously denied an Application to Proceed In Forma PaupeHs, filed by Mr. Veasey along with a pro se complaint, based on its determination that the $450.00 difference between his monthly income and monthly expenses, as he reported on his application, was sufficient to cover the court’s $350.00 filing fee. See Veasey v. Pennsylvania, No. 12-cv-03297 (E.D. Pa. June 14, 2012). Ultimately, however, regardless of whether Mr. Veasey has any present income, which might disqualify him from informa pauperis eligibility, which is not clear from the form he completed and submitted to the court, for the reasons discussed above, his complaint is being dismissed for lack of jurisdiction.
CONCLUSION
For the foregoing reasons, plaintiffs complaint is DISMISSED for lack of jurisdiction. The Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224433/ | UNSEALED MEMORANDUM OPINION AND ORDER
1
JAMES O. BROWNING, District Judge.
You can’t hide your lyin’ eyes
And your smile is a thin disguise
I thought by now you’d realize
There ain’t no way to hide your lyin’ eyes
The Eagles, Lyin’ Eyes (1975 Cass County Music & Red Cloud Music).
THIS MATTER comes before the Court on: (i) Defendant Myron Harry’s Motion in Limine to Exclude Testimony of Sane Nurse and Supporting Memorandum, filed January 24, 2013 (Doc. 108)(“SANE MIL”); and (ii) the United States’ Motion to Exclude Expert Testimony of Samuel Roll, filed March 26, 2013 (Doc. 129)(“Roll MIL”). The Court held hearings on March 29, 2013, and April 10, 2013. The primary issues are: (i) whether the Court should exclude the testimony of Julie Ky-sar, R.N., a Sexual Assault Nurse Examiner (“SANE nurse”) in Farmington, New Mexico, because it is irrelevant, unfairly prejudicial, will include opinion testimony that lacks a reliable basis in scientific or medical knowledge, or will include hearsay that is not within an exception; and (ii) whether the Court should exclude Dr. Samuel Roll from testifying at trial because his proffered expert opinion lacks a reliable basis in psychological knowledge *1204or is irrelevant. The Court will deny the SANE MIL and grant the Roll MIL. The Court concludes that Kysar’s factual testimony is relevant to the charges against Harry, any hearsay within her testimony falls within rule 803(4)’s exception to hearsay for statements made to a medical provider, and Kysar has a basis in reliable medical knowledge to provide her opinion regarding Jane Doe’s injuries, an opinion that is relevant to the jury’s determination whether Doe and Harry engaged in consensual intercourse. The Court will not allow Dr. Roll to testify, because he has not provided the Court with an article, resource, or other basis of knowledge in the field of psychology that supports his proffered testimony.
FACTUAL BACKGROUND
The United States accuses Harry of sexually assaulting Doe during a party the night of May 5-6, 2010, in Shiprock, New Mexico. See Indictment at 1, filed June 24, 2010 (Doe. 14). The Court previously made findings of fact for Harry’s Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75). See Memorandum Opinion and Order at 2-16, filed February 19, 2018 (Doc. 114). The Court incorporates those findings of fact by reference herein.
The morning after the incident, Doe asserted that Harry sexually assaulted her at the party. See SANE MIL at 1. Doe visited Kysar for an examination. SANE MIL at 1. During the SANE examination, Kysar noted that Doe’s demeanor was tearful, calm/cooperative, and she made poor eye contact. See Sexual Assault Exam at 1, 3, filed March 26, 2013 (Doc. 128-5).
Harry initially denied having sexual contact with Doe. DNA evidence revealed Harry’s DNA on vaginal swabs taken from Doe. See Response to Motion in Limine to Exclude Expert Testimony ¶ 1, at 1, filed January 31, 2013 (Doc. 112)(“SANE Response”).
PROCEDURAL BACKGROUND
On June 24, 2010, a grand jury indicted Harry for having knowingly engaged in a sexual act with Doe, who was physically incapable of declining participation and could not communicate her unwillingness to engage in the sexual act, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(A). See Indictment at 1. Trial in this matter is set for May 6, 2013, at 9:00 a.m. See Agreed Order to Vacate and Reset Trial and Extend the Time for the Filing of Pre-Trial Motions at 4, filed February 28, 2013 (Doc. 12). On September 28, 2012, Plaintiff United States of America informed the parties that it intends to call Kysar, a “certified Sexual Assault Nurse Examiner with the Sexual Assault Services of Northwest New Mexico” to testify regarding the conclusions in Doe’s SANE examination report. Sealed Notice of Intention to Offer Expert Testimony ¶ 3, at 2, filed September 28, 2012 (Doc. 95)(“SANE Notice”). The United States asserts that Kysar’s testimony will be mostly factual, and not “expert” in nature, but notifies the Court that it has, “out of an abundance of caution,” listed her as a potential expert witness, because “she may include her expert opinions or specialized knowledge regarding this matter and derived from her education, training, and professional experience as a sexual assault nurse examiner.” SANE Notice ¶ 3, at 2. On January 24, 2013, the United States notified the Court and Harry that it intends to call Kysar as an expert at trial. See Sealed First Amended Notice of Intention to Offer Expert Testimony ¶ 3, at 2, filed March 26, 2013 (Doc. 128)(“Second SANE Notice”). The United States intends to call Kysar to testify regarding the *1205“contents of her report and examination of Jane Doe,” the medical questions she asked Doe, and Doe’s responses to Kysar’s questions. Second SANE Notice ¶ 3, at 2. Additionally, the United States intends for Kysar to testify regarding the SANE examination, the tools and instruments Ky-sar used during the examination, “what the examination entailed,” and which areas of Doe’s body Kysar examined. Second SANE Notice ¶ 3, at 2. The United States intends for Kysar to testify that she took swabs from Doe’s genitalia and anus for serology and DNA examination, and that Kysar identified injuries and tearing on Doe’s genitalia. The United States states that Kysar “may testify that she cannot conclude that the injuries and tearing are indicative of non-consensual or consensual intercourse,” Second SANE Notice ¶ 3, at 2-3. The United States states that Kysar may testify that Doe’s injuries are “consistent with injury by blunt force trauma, which could have been caused by a penis during attempted penetration of the vagina.” Second SANE Notice ¶ 3, at 3. The United States maintains that Kysar’s testimony will be “largely factual but does contain some opinion testimony.” Second SANE Notice ¶ 3, at 3.
Harry intends to call Dr. Roll, a “psychologist of forty (40) years’ experience ... an associate psychology professor at University of New Mexico, widely-published and recognized as a speaker,” as an expert at trial. Second Amendment to Rule 702, 703, 705 Notice of Intent to Call Expert Witness at 1, filed March 15, 2013 (Doc. 122)(“Roll Notice”). Harry states that he may call Dr. Roll to testify
that no known treatise or empirical findings support the existence of any constellation of psychological symptoms or behavior that are observable or measurable which might indicate to a greater or lesser certainty that a person who claims to be a victim of non-consensual intercourse has or has not been such a victim.
Roll Notice at l.'Harry further informs the parties that Dr. Roll will “address to what extent and whether any of the subjective observations by a SANE nurse have empirical support or scientific basis, known in any reliable, verified research, that may be reproduced or verified through scientific or empirical means.” Third Amendment to Rule 702, 703, 705 Notice of Intent to Call Expert Witness at 1, filed March 25, 2013 (Doc. 127)(“Seeond Roll Notice”).
1. The SANE MIL.
Harry asserts that a SANE examination is “not for law enforcement purposes,” and, rather, state law requires that individuals alleging that they have been sexually assaulted receive a SANE examination. SANE MIL at 2. Harry asserts that his counsel interviewed Kysar and that Kysar informed Harry’s counsel: “I’m not able to differentiate between nonconsensual and consensual injury caused by nonconsensual or consensual sex. I’m not able to differentiate those.” SANE MIL at 2. Harry contends that neither his identity nor Doe’s capacity to consent are at issue, and, therefore, Kysar need not testify regarding her findings on those matters. Harry asserts that Kysar will have no expert opinion or specialized knowledge to offer to this matter, and that her testimony may be irrelevant and touch on impermissible character evidence. See SANE MIL at 2. Harry asserts that Kysar found “no admissible evidence of injury, representation of no injury, no evidence of forceable [sic] penetration,” and that he will not contest that a rape kit was used to obtain samples from Doe which the United States then tested. SANE MIL at 4. Harry contends that Kysar cannot offer an opinion whether her findings indicate consensual or non-consensual intercourse occurred. Harry *1206contends, therefore, that Kysar’s testimony lacks any probative value under rule 403. He asserts that “[t]o even permit the SANE nurse to take the stand as a fact witness would be reversible error for several reasons,” including that her testimony would serve no medical purpose and only bolster the testimony of the United States’ other witnesses. SANE MIL at 5. Harry argues that Kysar’s testimony does not fall within any exception for medical testimony. See SANE MIL at 5. Harry requests that the Court, therefore, preclude Kysar from testifying. See SANE MIL at 6.
The United States requests the Court to admit both Kysar’s factual and expert testimony “regarding the victim’s statements provided to Ms. Kysar during the victim’s sexual assault exam.” SANE Response at 1. The United States asserts that the SANE MIL is without merit. See SANE Response ¶ 3, at 2. The United States first asserts that rule 803(4) of the Federal Rules of Evidence’s exception to the hearsay prohibition allows the Court to admit the SANE nurse’s testimony regarding Doe’s statements, because her statements were “ ‘made for the purposes of medical diagnosis or treatment.’ ” SANE Response ¶ 4, at 2-3 (quoting Fed.R.Evid. 803(4)). The United States contends that, in United States v. Tome, 61 F.3d 1446 (10th Cir.1995), the United States Court of Appeals for the Tenth Circuit held that “statements made in preparation for an examination in response to questions designed to build rapport, and statements that noted the extent of touching without identification of the perpetrator made during a secondary examination to determine whether abuse had occurred were all admissible under Fed.R.Evid. 803(4).” SANE Response ¶ 5, at 3.
The United States asserts that rule 803(4) covers Doe’s statements, because the SANE examination was conducted for Doe’s “health and well-being.” SANE Response ¶ 6, at 3 (citing United States v. Joe, 8 F.3d 1488, 1493 (10th Cir.1993)). The United States asserts that the SANE examination was conducted for medical purposes and not to further a criminal investigation. See SANE Response ¶ 6, at 4.
The United States also asserts that, contrary to Harry’s contention, “it is common practice for treating practitioners to take the stand as fact witnesses.” SANE Response ¶ 7, at 4. The United States points out that, in United States v. Chaco, 801 F.Supp.2d 1200, 1203 (D.N.M.2011) (Browning, J.), the Court determined that statements made during a SANE examination “fall within rule 803(4)’s hearsay exceptions.” SANE Response ¶ 7, at 4 (citing United States v. Frost, 684 F.3d 963, 976 (10th Cir.2012)).
The United States “concedes that the SANE nurse is not able to differentiate between nonconsensual and consensual injury caused by nonconsensual or consensual sex.” SANE Response ¶ 8, at 5. The United States asserts, however, that the SANE examination revealed vaginal tearing and other injuries. See SANE Response ¶ 8, at 5. The United States asserts that the Tenth Circuit has allowed a doctor to testify about the results of a physical examination, and “whether or not the results were consistent with the victim’s allegations of sexual abuse.” SANE Response ¶ 8, at 5 (citing United States v. Charley, 189 F.3d 1251, 1264 (10th Cir.1999)). The United States states that it intends to call Kysar “to testify to her opinion as to whether or not Jane Doe’s injuries are consistent with the method of injury.” SANE Response ¶ 8, at 5. The United States last asserts that excluding Kysar would be an “extreme remedy ... that is not supported in case law or the *1207Federal Rules of Evidence.” SANE Response ¶ 9, at 6.
Harry responds that United States v. Tome’s broad admission of testimony from alleged sexual assault victims is applicable in cases of child sexual assault and, thus, not applicable here. See Reply to Response to Motion in Limine to Exclude Expert Testimony at 1, filed February 19, 2013 (Doc. 115)(“SANE Reply”). Harry contends that “there exists no recognized galaxy of behaviors or demeanors or appearances that are observable and can distinguish between consensual or nonconsen-sual sexual relations,” and, thus, Kysar cannot testify regarding her perception of Doe after the incident. See SANE Reply at 1-2. Harry contends that Kysar’s testimony is not relevant to any issue in the case and that its prejudicial effect far outweighs its probative value. See SANE Reply at 2. Harry contends that Kysar cannot testify whether Doe and Harry engaged in consensual or nonconsensual intercourse, because Kysar admits that she cannot differentiate between the two. See SANE Reply at 2-3. Harry asserts that Doe’s alleged injuries are consistent with consensual intercourse. See SANE Reply at 3.
Harry also asserts that the testimony of Kysar, as a lay witness, has no probative value. He argues that Kysar’s testimony might confuse or divide the jury, or cause the jury to make its decision on improper beliefs which the evidence does not support. See SANE Reply at 3. Harry contends that Kysar’s testimony may only be relevant if Harry denied that Doe had a SANE examination, which he does not deny. See SANE Reply at 3-4.
2. The Roll MIL.
The United States moves the Court to exclude testimony from Harry’s witness, Dr. Roll. See Roll MIL at 1. The United States asserts that it has not received an expert report from Dr. Roll. See Roll MIL at 2. The United States asserts that neither it nor the Court can evaluate Dr. Roll’s expert testimony without a report. See Roll MIL at 3. The United States asserts that, based on the limited information in the Roll Notice and Second Roll Notice, Dr. Roll’s testimony is “irrelevant and improper under rule 702 and Daubert and the Court should exclude Roll from testifying.” Roll MIL at 4. The United States contends that the Roll Notice and Second Roll Notice are “wholly inadequate to meet Rule 702’s requirements.” Roll. MIL at 4. The United States further asserts that Dr. Roll’s testimony would infringe on the “jury’s province to determine the facts and to assess credibility.” Roll MIL at 4. The United States contends that, in United States v. Adams, 271 F.3d 1236 (10th Cir.2001), the Tenth Circuit held that the “ ‘credibility of witnesses is generally not an appropriate subject for expert testimony,’ ” although the United States notes that the Tenth Circuit did not proscribe a “ ‘blanket exclusion’ of evidence regarding the circumstances of a confession.” Roll MIL at 5 (quoting 271 F.3d at 1244-45). The United States asserts that the Tenth Circuit in United States v. Adams explained that expert testimony that only vouches for witness credibility encroaches on the jury’s “ ‘vital and exclusive function to make credibility determinations,’” and can exceed the scope of an expert’s specialized knowledge, causing a jury to reach a verdict on an improper basis. Roll MIL at 5 (quoting 271 F.3d at 1245). The United States contends that Harry seeks to use Dr. Roll for a similar purpose and that such testimony would violate the Tenth Circuit’s rulings. See Roll MIL at 6. The United States contends that, if the Court does not preclude Dr. Roll from testifying under United States v. Adams, the Court should preclude Dr. Roll *1208from testifying, because the prejudicial effect of Dr. Roll’s testimony will outweigh its probative value. See Roll MIL at 6-7.
3. The March 29,2013 Hearing.
The Court held a hearing on the SANE MIL on March 29, 2013. See Transcript of Hearing (taken March 29, 2013)(“Mar. 29 Tr.”).2 The Court informed the parties that it had previously discussed similar issues regarding SANE nurse testimony in United States v. Chaco. See Mar. 29 Tr. at 13:5-11 (Court). The Court stated that the issues in this case cannot be easily distinguished from those in United States v. Chaco, in which the Court admitted a victim’s statements through a physician. See Mar. 29 Tr. at 13:12-25 (Court). The Court noted that it made a similar ruling in United States v. Jim, No. CR 10-2653 JB, 2012 WL 2053683 (D.N.M. Jan. 7, 2012) (Browning, J.). See Mar. 29 Tr. at 14:3-12 (Court). The Court stated, therefore, that, “unless there’s something unusual about the SANE nurse then probably the statements that are ... made by the victim to the SANE nurse about the identity and her condition are going to probably come in.” Mar. 29 Tr. at 14:12-17 (Court). The Court stated that it will not allow Kysar to speculate regarding whether vaginal tears are consistent with sexual assault. See Mar. 29 Tr. at 14:18-22 (Court).
Harry moved into evidence the SANE nurse report from May 6, 2011 — Defense Exhibit A — the interview transcript of a December 28, 2012 interview of Kysar— Defense Exhibit B — and Dr. Hariton’s report, dated March 14, 2012 — Defense Exhibit C. See Mar. 29 Tr. at 15:15-23 (Sa-more); id. at 71:8-72:11 (Samore, Court, Nayback). Harry first asserted that his case is distinguishable from United States v. Chaco, because the victim in this case is not a child. See Mar. 29 Tr. at 15:24-16:2 (Samore). The Court countered that the Tenth Circuit finds the identity of the assailant relevant in any sexual assault case, regardless of the victim’s age. See Mar. 29 Tr. at 16:3-18 (Court)(citing United States v. Joe).
The Court inquired of Harry what the problem is with Kysar testifying as a fact, and not an expert, witness. See Mar. 29 Tr. at 17:6-7 (Court). Harry contended that Kysar is “not a treating physician,” and that a SANE nurse’s primary purpose is to give sympathy and support, unlike the treatment Doe would receive in an emergency room. Mar. 29 Tr. at 17:12-20 (Samore). The Court contrasted a SANE nurse with a Federal Bureau of Investigation (“FBI”) agents and investigators, who are often called as witnesses, notwithstanding that FBI agents are “not neutral, they’re going to try to turn every case into a criminal case.” Mar. 29 Tr. at 18:10-17 (Court). Harry countered that statements from medical providers are relevant to prove an assailant’s identity, which is not at issue in this case. See Mar. 29 Tr. at 19:1-5 (Samore). Harry contended that Kysar admitted in her interview that she cannot differentiate, based on her findings, between consensual and nonconsensual intercourse. See Mar. 29 Tr. at 19:8-17 (SamoreXciting Defense Exhibit A at 39). The Court asked Harry how Kysar’s testimony could be problematic if she states that she cannot so differentiate when she testifies, and Harry asserted that the United States wants to introduce more evidence, besides Kysar’s physical findings, through Kysar’s testimony. See Mar. 29 Tr. at 19:23-20:1 (Samore). Harry assert*1209ed that the United States wants to introduce evidence of Doe’s demeanor through Kysar, and Harry asserted that Dr. Roll will testify that “there is not one word of empirical support for putting on a witness from the SANE office” to demonstrate that “demeanor makes ... it more or less likely that the person was a victim of sexual assault.” Mar. 29 Tr. at 20:1-12 (Samore). The Court countered that the SANE nurse cannot testify that, based on Doe’s demeanor, she believes it was sexual assault, and the Court stated that Kysar therefore appears to be only a fact witness, and not an expert witness. See Mar. 29 Tr. at 20:13-19 (Court, Samore). The Court noted that a treating physician is not usually considered an expert when the physician comments on an examination which the physician administered. See Mar. 29 Tr. at 21:1-5 (Court). Harry countered that Kysar’s testimony is not relevant, even as a fact witness, because “the prosecution can’t make a threshold showing of authority, not just with presumptions ... to say the demeanor has one ... millimeter, milligram of sup-port_” Mar. 29 Tr. at 21:6-11 (Samore). The Court inquired how a “woman’s demeanor after having consensual sex or having a sexual assault [could] not be relevant^]” Mar. 29 Tr. at 21:12-14 (Court). Harry countered that whether demeanor is relevant varies with each woman, and the Court noted that he may make that argument to the jury. See Mar. 29 Tr. at 21:15-18 (Samore, Court). The Court noted that, if a woman “ran out of the room ... naked and screaming I’ve [been] raped ... I think that would be factually] relevant.” Mar. 29 Tr. at 22:3-7 (Court). The Court stated that it would allow the jury’to decide “whether they thought somebody had been raped or ... sexually assaulted.” Mar. 29 Tr. at 22:9-11 (Court).
Harry noted that Kysar appears to be a “decent lady,” and he does not believe that she will “stretch and ... project [her] opinions.” Mar. 29 Tr. at 22:20-22 (Sa-more). The Court noted that its concern with SANE nurses is that they often become advocates for victims. See Mar. 29 Tr. at 22:23-25 (Court). Harry stated that Kysar admits that “she is an advocate for this lady.” Mar. 29 Tr. at 23:3-4 (Sa-more). Harry asserted, nonetheless, that Kysar’s testimony that Doe’s injuries are consistent with the account she provided to the United States cannot be relevant, unless Harry argues that Doe is changing her story, which he does not plan to argue. See Mar. 29 Tr. at 23:15-21 (Samore). The Court stated that it would not allow Kysar to testify that “based upon her demeanor ... she was sexually assaulted and this was not consensual,” but expressed that the jury can use common sense to determine what weight to give Kysar’s description of Doe’s demeanor. Mar. 29 Tr. at 24:13-23 (Court). Harry asserted that jurors bring “their prejudice” to a rape case, and he asserted that he is trying to “keep the prejudice out.” Mar. 29 Tr. at 25:2-11 (Samore). The Court stated that a SANE nurse is not allowed to “assess” Doe’s demeanor, and, rather, Kysar can only describe Doe’s demeanor. Mar. 29 Tr. at 25:15-21 (Court). Harry asserted that Dr. Roll’s testimony will discuss whether Doe’s demeanor has relevance to the charges against Harry. See Mar. 29 Tr. at 25:22-26:4 (Samore). Harry asserted, further, that Kysar’s testimony describing Doe’s account of the events is not relevant, because it is repetitive and only serves to bolster the United States’ case. See Mar. 29 Tr. at 26:5-10 (Samore). The Court responded that repeating Doe’s story is not necessarily irrelevant, because, that Doe repeats the same story multiple time to different individuals tends to show that the story is more reliable. See Mar. 29 Tr. at 26:11-18 (Court). Harry re*1210sponded that he would not think repeating the same story gives any more weight to a victim’s story. See Mar. 29 Tr. at 26:19-20 (Samore). Harry asserted, rather, that repeating the same story multiple times would tend to show that a victim is lying, and not that a victim is telling the truth. See Mar. 29 Tr. at 27:22-23 (Samore). Harry stated that he wants to call Dr. Roll to testify regarding the relevance of Ky-sar’s testimony. See Mar. 29 Tr. at 27:13-18 (Samore).
The United States objected to testimony from Mr. Roll. See Mar. 29 Tr. at 27:22 (Nayback). Regarding Kysar’s testimony, the United States stated that she will not assess Doe’s demeanor or asses Doe’s credibility based upon her demeanor. See Mar. 29 Tr. at 28:9-11 (Nayback). The United States agreed that Kysar may not testify that Doe’s demeanor indicates that she was sexually assaulted. See Mar. 29 Tr. at 28:12-19 (Court, Nayback). The Court asked whether Kysar would testify that, in most cases, “consensual sex and sexual assault are going to have the same sort of physical characteristics [in the] overwhelming number of cases?” Mar. 29 Tr. at 28:20-23 (Court). The United States agreed. See Mar. 29 Tr. at 28:24 (Nayback). The United States stated that it agrees with the Court’s restrictions on Kysar’s testimony, that it noticed Kysar as an expert only “out of an [abundance of] caution,” and that Kysar is “a fact witness.” Mar. 29 Tr. at 29:2-6 (Court, Nay-back).
The United States stated that Kysar “might opine ... based on training and experience ... that [Doe’s] injuries [are] consistent” with Doe’s account of the events. Mar. 29 Tr. at 29:18-21 (Nay-back). The United States explained that, according to Doe, Harry came into the bedroom where Doe was sleeping, pulled her panties down, and had sexual relations with her, and that Kysar might opine that the vaginal tears found on Doe are consistent with that version of the incident. See Mar. 29 Tr. at 29:23-30:2 (Nayback). The United States stated that the extent of Kysar’s expert testimony would be that Doe’s vaginal tearing indicates that she was “in no way eooperating[,] she’s not tilting her pelvic area and so she would expect to find the tearing where it was.” Mar. 29 Tr. at 30:2-6 (Nayback). The Court inquired whether Kysar will concede that consensual intercourse and noneon-sensual intercourse can cause the same vaginal tears, and the United States responded that it understands that SANE nurses can “never differentiate really.” Mar. 29 Tr. at 30:11-14 (Court, Nayback). The United States noted that Kysar will inform the jury that aggressive consensual intercourse can cause severe tearing, while a rape victim may have very minimal tearing. See Mar. 29 Tr. at 30:14-19 (Court, Nayback). The United States stated that Kysar’s testimony is relevant, because Harry initially denied touching Doe, and took issue with Harry’s contention that SANE nurses provide sympathy to victims, and argued that Kysar’s testimony is relevant regarding Doe’s vaginal tearing and her account of events. Mar. 29 Tr. at 30:21-25 (Nayback). The United States contended that identity is an issue, because Harry denied touching Doe, but a DNA test found his fluids inside of her. See Mar. 29 Tr. at 31:1-10 (Nayback).
The United States suggested that Dr. Roll not testify at the March 29, 2013 hearing, because Dr. Roll had not yet filed an expert report, and, therefore, the United States had no basis for questioning Dr. Roll. See Mar. 29 Tr. at 31:19-32:8 (Nay-back). The Court responded that it could hear the United States’ objections to Dr. Roll’s expert testimony at a later hearing, but that, at the March 29, 2013, hearing, Harry’s purpose for Dr. Roll’s testimony is *1211to bolster the SANE MIL. See Mar. 29 Tr. at 32:9-17 (Court). The Court stated that it would allow Harry to examine Dr. Roll, but may let the United States cross-examine Dr. Roll after he has produced an expert report. See Mar. 29 Tr. at 33:23-34:2 (Court). The Court inquired of Harry whether he is using Dr. Roll at the March 29, 2013 hearing for the limited purpose of bolstering his SANE MIL, and Harry responded that bolstering the SANE MIL is his purpose for Dr. Roll’s testimony. See Mar. 29 Tr. at 34:3-12 (Court, Harry). Harry stated that, if the Court allows Ky-sar to testify about demeanor, he would want Dr. Roll to testify that demeanor does not indicate anything. See Mar. 29 Tr. at 34:3-6 (Court, Samore).
Harry then called Dr. Roll to testify. See Mar. 29 Tr. at 39:27-21 (Court, Sa-more, Witness). The United States waived an inquiry regarding Dr. Roll’s qualification as an expert in the field of psychology, because Dr. Roll has previously testified before the Court as an expert. See Mar. 29 Tr. at 40:2-9 (Samore, Roll, Court, Nayback). Harry asked Dr. Roll whether there is “any constellation or observable behaviors of people who claim to be a victim of sexual abuse that is recognizable or ... makes it more likely or less likely that they’re telling the truth?” Mar. 29 Tr. at 40:16-21 (Samore). Dr. Roll replied: “There is not.” Mar. 29 Tr. at 40:22 (Roll). Dr. Roll explained that “it is the absence of what is in the record” that supports his opinion. Mar. 29 Tr. at 40:23-41:1 (Samore, Roll). Dr. Roll stated that he has “followed the research on sexual abuse [and] asexual assaults since at least 40 years ago ... and none of them .... indicate] that [a] constellation of physical presentation can either confirm or inform the hypothesis that abuse was consensual or not.” Mar. 29 Tr. at 41:1-8 (Roll). Dr. Roll stated that he had not reviewed particular documents before testifying at the March 29, 2013, hearing, and, rather, the history of his work and review of journals of normal psychology and personality assessment over the years informs his opinion. See Mar. 29 Tr. at 41:13-18 (Roll). Dr. Roll stated that, in his thirty-three years of teaching psychology, he has not found a psychology textbook which states that a person’s demeanor or a constellation of features is reliable, and he stated that a person’s demeanor and features are “highly unreliable.” Mar. 29 Tr. at 41:19-24 (Roll). Dr. Roll stated that whether a person is calm or tearful is not indicative whether that person was sexually abused or assaulted. See Mar. 29 Tr. at 42:1-7 (Roll).
Harry inquired whether Dr. Roll notes patients’ demeanor when he examines patients, and Dr. Roll stated that he does. See Mar. 29 Tr. at 42:14-17 (Samore, Roll). Dr. Roll stated that a person’s demeanor is relevant contextually and may indicate that a certain topic triggers a response in an individual. See Mar. 29 Tr. at 42:23-43:43:4 (Samore, Roll). Dr. Roll stated that he cannot assess, from a person’s behavior, whether they were sexually assaulted. See Mar. 29 Tr. at 43:10-17 (Roll). Dr. Roll stated that a person’s responses can “go every which way [f]or every which behavior,” and, therefore, a person’s demeanor is not a reliable method of determining whether an individual was sexually assaulted. Mar. 29 Tr. at 43:19-24 (Roll). In response to Harry’s question whether a person’s behavior can determine that person’s credibility in court, Dr. Roll responded that an individual’s behavior is “just too [unreliable from the psychological perspective” to be indicative of credibility. Mar. 29 Tr. at 43:25-44:23 (Samore, Roll). In response to Harry’s question whether Dr. Roll perceives problems with a nurse testifying about an alleged victim’s statements, Dr. Roll stated that a person’s *1212behavior cannot indicate whether that person is telling an account truthfully. See Mar. 29 Tr. at 44:15-46:12 (Samore, Roll). Dr. Roll stated that he is testifying only that there is not a “constellation of behaviors and emotion[s] [that] can be used reliably to tell whether or not sex was consensual or] not.” Mar. 29 Tr. at 46:17-22 (Roll).
The United States stated that it prefers to cross-examine Dr. Roll at a later hearing, after Dr. Roll produces an expert report. See Mar. 29 Tr. at 47:8-14 (Court, Nayback). The Court asked Dr. Roll whether he is familiar with Malcolm Glad-well’s book Blink: The Power of Thinking Without Thinking (Back Bay Books, 2007), and Dr. Roll responded that he is familiar with the book. See Mar. 29 Tr. at 47:15-23 (Court, Roll). The Court asked Dr. Roll what his opinion is of the section in Blink where Gladwell describes psychologists’ study of individuals’ faces for the purpose of determining the individuals’ underlying emotions.3 See Mar. 29 Tr. at 47:24-48:3 (Court). Dr. Roll responded that, “if that were true, it would be the most startling finding in the history of psychology and ... you would be out of a job and so would I.” Mar. 29 Tr. at 48:11-15 (Roll). Dr. Roll stated that there is “no way ... that these kinds of actions even the subtle ones that you measure with a ... lie detect[or] or polygraph test can[ ] be relied on....” Mar. 29 Tr. at 48:17-23 (Roll). Regarding Gladwell’s description of the psychologists’ catalog of faces indicating emotions, Dr. Roll stated that young theatre actors are able to create “every kind of [emotion] you can imagine and [ ] are ... believable,” and that, if Gladwell’s hypothesis is correct, “it would be much more startling than any of [F]r[e]ud’s discoveries.” Mar. 29 Tr. at 49:5-16 (Court, Roll).
4. Harry’s Response to the Roll MIL.
Harry asserts that Kysar’s testimony is “unnecessary, irrelevant, entirely unsupported by empirical evidence supporting its reliability.” Response to Government’s Motion to Exclude Expert Testimony of Samuel Roll at 2, filed April 9, 2013 (Doc. 132)(“Roll Response”). Harry contends that any objections which the United States had to Dr. Roll’s testimony have been cured from the time the United States filed the Roll MIL. See Roll Response at 1.
Harry contends that Dr. Roll’s testimony is “absolutely essential to achieve a fair trial.” Roll Response at 2. Harry asserts that the United States conceded at the March 29, 2013, hearing that any testimony from Kysar “regarding a possible, positional explanation of physical findings and, secondarily, the demeanor of the Porseeu-trix has no evidentiary value ... whether the alleged relations were consensual or nonconsensual.” Roll Response at 2. Harry contends that, if Kysar is allowed to testify in support of Doe’s allegations of sexual assault, Kysar’s testimony would “suggest to an otherwise uninformed jury that it has value.” Roll Response at 3. Harry asserts that the United States is seeking to “offer unproven, entirely unreliable evidence to confuse the jury and suggest that it is something with merit to support the Government’s case.” Roll Response at 3. Harry contends that “to permit the SANE witness to testify regarding [] the Government’s admitted purposes and to deny the Defense opportunity to *1213provide substantive response is Constitutionally prejudicial and selectively denies fair trial.” Roll Response at 3.
5. The April 10,2013 Hearing.
The Court held a hearing on April 10, 2013, .at which the United States cross-examined Dr. Roll. See Transcript of Hearing at 39:6-12 (taken April 10, 2013)(Court, ' Witness)(“Apr. 10 Tr.”). Dr. Roll stated that Harry first contacted him about the case approximately three weeks before the hearing, he has spent approximately fourteen hours preparing for his testimony, and he has reviewed the Court’s proceedings, motions, Kysar’s notes, and some psychological research. See Apr. 10 Tr. at 40:12-41:2 (Nayback, Roll). Dr. Roll stated that he has not conducted a psychological examination of, or had personal contact with, any of the witnesses. See Apr. 10 Tr. at 42:9-14 (Nayback, Roll). In response to the United States’ question how Dr. Roll’s testimony would be relevant, Dr. Roll responded that, if asked, he will testify that there are no constellation of behaviors found in scientific evidence that indicate that an individual had consensual intercourse. See Apr. 10 Tr. at 43:8-21 (Nayback, Roll). Dr. Roll asserted that there is not a certain behavior that consistently indicates a particular aspect of an individual’s past. See Apr. 10 Tr. at 46:17-47:6 (Nayback, Roll). Dr. Roll stated that regardless whether an individual is a victim of domestic violence or won the lottery, an individual’s demeanor is not indicative of their experience. See Apr. 10 Tr. at 47:12-22 (Nayback, Roll). Dr. Roll stated that an individual yelling that “they w[on] the lottery doesn’t mean they’re not telling the truth. It’s not about truth telling.” Apr. 10 Tr. at 48:2-6 (Roll). Dr. Roll stated that he will not testify that, because an individual is crying during a SANE examination, she is telling the truth, but, rather, his testimony is that “behavioral constellations are not a good guideline based on psychological [research].” Apr. 10 Tr. at 48:15-25 (Nayback, Roll). Dr. Roll stated that the literature “really doesn’t discuss this ... that demean[or] is a reliable indicator of [whether] ... [a] person’s sexual experiences are consensual or non[consensual].” Apr. 10 Tr. at 49:14-19 (Roll). The United States inquired whether Dr. Roll is, therefore, testifying to a negative, and Dr. Roll admitted that he is “somewhat testifying to the negative.” Apr. 10 Tr. at 49:19-21 (Nayback, Roll). Dr. Roll asserted that psychological reports cataloging reliable psychological indicators do not include demeanor as a reliable indicator. See Apr. 10 Tr. at 50:2-12 (Roll). Dr. Roll asserted that the general discrediting of polygraph tests in the psychological community is evidence that psychologists do not find behavior indicators to be reliable. See Apr. 10 Tr. at 51:13-21 (Roll).
The United States inquired whether Dr. Roll’s opinion may be tested, and Dr. Roll replied: “Of course.” Apr. 10 Tr. at 53:4-5 (Nayback, Roll). Dr. Roll asserted that the National Academy of Sciences has found that behavioral manifestations are unreliable. See Apr. 10 Tr. at 53:7-10 (Roll). The United States inquired how Dr. Roll’s testimony that there is not a connection between psychological behaviors and sexual experience may be tested, and Dr. Roll stated that his opinion may be tested with the methods described in the articles attached to his expert report. See Apr. 10 Tr. at 53:11-19 (Nayback, Roll). Dr. Roll admitted that his expert opinion has not been peer reviewed. See Apr. 10 Tr. at 53:20-24 (Nayback, Roll). Dr. Roll asserted that his opinion is accepted in the scientific community and is in accordance with relevant academic psychological standards. See Apr. 10 Tr. at *121454:13-55:8 (Nayback, Roll). In response to the United States’ question, Dr. Roll stated that he “may have” noted demeanor in previous forensic evaluations, but that he does not normally note an individual’s demeanor “because some of the material that I have reviewed here indicates that is the least useful part of the evaluation and ... it’s distracting.” Apr. 10 Tr. at 55:19-24 (Nayback, Roll). The United States inquired whether Dr. Roll’s testimony is relevant if the Court instructs the jury that the jurors are the “sole judges of credibility and believability.” Apr. 10 Tr. at 56:17-19 (Nayback). Dr. Roll replied that, in his opinion, his testimony is not rendered irrelevant by such an instruction. See Apr. 10 Tr. at 56:20-21 (Roll). The United States inquired whether Dr. Roll believes that the jury can judge the value of an individual’s demeanor for assessing the individual’s past experiences, and Dr. Roll stated that the ability of a jury to judge credibility is “not my call.” Apr. 10 Tr. at 58:13-21 (Nayback, Roll). In response to the United States’ question, Dr. Roll stated that he is not being called to testify regarding the credibility of any particular witness in this case. See Apr. 10 Tr. at 60:14-18 (Nayback, Roll). Dr. Roll agreed that the credibility of witnesses is not an appropriate subject for expert testimony. See Apr. 10 Tr. at 62:21-25 (Nay-back, Roll).
On re-direct, Dr. Roll stated that not every authorized study in psychological science is published. See Apr. 10 Tr. at 65:3-9 (Samore, Roll). Dr. Roll also stated that he would not, at trial, assess the import of any witnesses’ testimony, although he recognized that his testimony may “touch on” witnesses’ credibility when testifying. Apr. 10 Tr. at 66:20-67:4 (Sa-more, Roll).
The Court noted that it will likely e&Iow Kysar to testify regarding Doe’s demean- or, without allowing her to assess Doe’s demeanor. See Apr. 10 Tr. at 67:19-68:2 (Court). The Court further stated that Dr. Roll’s testimony may be relevant to the jury, because many jurors likely believe that demeanor has a significant value. See Apr. 10 Tr. at 68:3-5 (Court); id. at 68:7-69:4 (Court). The United States contended that Dr. Roll has not provided an article that supports his opinion testimony regarding demeanor. See Apr. 10 Tr. at 69:6-11 (Nayback). The Court agreed that the absence of scientific support is a problem with admitting Dr. Roll’s testimony. See Apr. 10 Tr. at 69:12-17 (Court). The Court countered, nonetheless, that Dr. Roll’s testimony seems to be similar to that of an expert testifying that eye-witness testimony is not infallible. See Apr. 10 Tr. at 69:21-70:14 (Court). The United States responded that it has never seen nor heard of an expert who testifies regarding the fallibility of eye-witness testimony and that any such expert testimony is distinguishable from Dr. Roll’s testimony. See Apr. 10 Tr. at 70:15-24 (Court). The United States asserted that Dr. Roll’s testimony is relevant only to assess the credibility of witnesses, which is a precluded purpose for expert testimony in the Tenth Circuit. See Apr. 10 Tr. at 71:3-11 (Nayback). The United States further asserted that Dr. Roll has provided insufficient scientific basis for his expert opinion and that Dr. Roll’s testimony is not proven reliable within his scientific field. See Apr. 10 Tr. at 71:11-24 (Nayback). The United States asserted that credibility is for the jury to judge, and'that, if Dr. Roll testifies, his testimony will have no parameters. See Apr. 10 Tr. at 72:1-11 (Nayback). The Court noted that, although the jury is the sole judge of credibility, lawyers are allowed to impeach witnesses. See Apr. 10 Tr. at 72:12-17 (Court, Nayback). The Court stated that, at least with respect to relevance, the Court is allowing evidence *1215of Doe’s demeanor to be admitted and that, if Dr. Roll testifies regarding the value of Doe’s emotional state, that testimony would be relevant. See Apr. 10 Tr. at 75:18-24 (Court). The United States asserted that Dr. Roll’s testimony would go too far because he would testify whether Doe and Harry engaged in consensual intercourse, but the Court countered that Dr. Roll never stated that his testimony would encompass whether there was consensual intercourse. See Apr. 10 Tr. at 75:15-21 (Nayback, Court). The United States asserted, therefore, that Dr. Roll’s testimony does not have a factual connection necessary to be relevant to the case, but the Court stated that it does not want Dr. Roll to testify about the credibility of particular witnesses in the case. See Apr. 10 Tr. at 75:22-76:8 (Nayback, Court). The United States asserted that Dr. Roll’s testimony would still be tied to the facts of the case and that Dr. Roll’s testimony cannot meet the standards necessary for expert testimony. See Apr. 10 Tr. at 76:20-77:13 (Nayback).
Harry asserted that he is not making demeanor an issue in this case. See Apr. 10 Tr. at 77:20-21 (Samore). Harry asserted that the United States has not produced any evidence indicating the relevance of demeanor to sexual assault victims and that Dr. Roll has brought forward five studies which demonstrate that demeanor is not relevant to assessing a person’s background. See Apr. 10 Tr. at 78:3-15 (Samore). Harry contended that, if Dr. Roll does not testify, the jury will give undue weight to Kysar’s testimony regarding Doe’s demeanor. See Apr. 10 Tr. at 79:25-80:6 (Samore). Harry asserted that the absence of Tenth Circuit case law regarding testimony such as Dr. Roll’s is evidence of a prosecutorial bias in the appellate process. See Apr. 10 Tr. at 79:10-24 (Samore). Harry asserted that the Court has an opportunity to fashion a fair remedy for his case. See Apr. 10 Tr. at 80:21-81:3 (Samore). Harry contended that the importance of demeanor is not a “hot topic” in psychology, and, rather, it is settled that it is not relevant to indicate an individual’s psychological history. Apr. 10 Tr. at 82:18-24 (Samore). Harry asserted that, if evidence of Doe’s demeanor is admitted, the Court should allow Dr. Roll to testify. See Apr. 10 Tr. at 83:9-16 (Samore).
The Court inquired whether Dr. Roll’s testimony has any relevance beyond attacking the credibility of Doe’s demeanor. See Apr. 10 Tr. at 84:1-10 (Court). Harry stated that Dr. Roll will not testify about Doe’s credibility and, rather, that Dr. Roll will testify that the juror cannot “determine the validity, the reliability of what they’re describing to you” through demeanor. Apr. 10 Tr. at 84:11-19 (Samore). The Court stated that it is concerned that Dr. Roll will testify that an individual’s emotional response is not a “reliable indication that a person’s sexual experiences were consensual or nonconsensual.” Apr. 10 Tr. at 85:5-9 (Court). The Court stated that such a testimony is close to commenting on the credibility of witnesses. See Apr. 10 Tr. at 84:11-16 (Court). Harry responded that Dr. Roll could not testify about the witnesses’ credibility in the case because Dr. Roll will not comment on a particular emotional response. See Apr. 10 Tr. at 85:17-19 (Samore). The Court asked Harry, therefore, what the relevance of Dr. Roll’s testimony would be. See Apr. 10 Tr. at 85:20-21 (Court). The Court stated that Dr. Roll must be able to provide at least two or three articles in support of his opinion that “demeanor doesn’t tell anybody about the ... emotions” of an individual. Apr. 10 Tr. at 86:2-12 (Court). Harry responded that the subject of Dr. Roll’s testimony is not Doe’s particular emotional response, but, rather, that the *1216there is no evidence to link her emotional response to a particular sexual incident. See Apr. 10 Tr. at 86:15-24 (Samore). The Court responded that it seems as though somebody in the realm of psychology should have been able to comment heretofore on the disconnect between demeanor and emotional response if the disconnect exists to the extent Dr. Roll testifies it does. See Apr. 10 Tr. at 87:7-11 (Court). The Court stated that Dr. Roll should be able to cite to an article that indicates that Gladwell’s theories are “a bunch of garbage” if Dr. Roll’s opinion is accurate. Apr. 10 Tr. at 87:14-020 (Court). Harry asserted that ample evidence exists in the field of psychology that demeanor is not reliable evidence. See Apr. 10 Tr. at 87:21-88:15 (Samore). The Court responded that the Federal Rules of Evidence seem to allow demeanor and, therefore, recognize that demeanor is a valuable tool of assessment for the jury. See Apr. 10 Tr. at 88:16-21 (Court). The Court stated that the exception for a declarant’s mental, emotional, and physical state indicates that demeanor is admissible evidence. See Apr. 10 Tr. at 89:1-4 (Court). Harry contended that Dr. Roll’s testimony would preclude the jury from making “that erroneous unsupported inference” that Doe’s demeanor has relevance to her credibility. Apr. 10 Tr. at 89:9-17 (Samore).
The Court inquired whether Harry can characterize Dr. Roll’s testimony in any other fashion than testimony regarding an individual’s emotions or the validity of an individual’s statements. See Apr. 10 Tr. at 90:24-91:6 (Court). Harry stated that Dr. Roll will testify that an individual’s demeanor is not indicative whether that individual was sexually assaulted or had other sexual experiences, or of the validity of that individual’s statements. See Apr. 10 Tr. at 91:7-19 (Samore). Harry conceded that, when he says “validity,” he is referring to the truthfulness of an individual’s statement. Apr. 10 Tr. at 91:20-24 (Court, Samore). The Court stated that it will likely exclude Dr. Roll’s testimony if its subject matter is reliability or validity of an individual’s statements. See Apr. 10 Tr. at 92:3-9 (Court, Samore). Harry asserted that emotions are not at issue in this case, and, rather, that the United States is seeking to introduce Doe’s demeanor to support the validity of her statements. See Apr. 10 Tr. at 92:18-93:1 (Samore). Harry asserted that he has a right to respond to the United States’ evidence regarding the validity of Doe’s statements. See Apr. 10 Tr. at 93:2-15 (Sa-more).
The Court inquired whether the United States would agree to Dr. Roll’s testimony if he broadened the scope of his opinion to state that demeanor is not an indicator of psychological phenomenon, which would omit any mention of sexual experience. See Apr. 10 Tr. at 94:8-13 (Court). The United States responded that it would not likely be comfortable with Dr. Roll’s testimony even if it were so broadened. See Apr. 10 Tr. at 94:14-16 (Nayback). The United States also asserted that Dr. Roll’s testimony is not relevant to a material issue in the case, because Kysar will not assess Doe’s demeanor. See Apr. 10 Tr. at 95:12-24 (Nayback). The United States asserted that Dr. Roll’s expert report does not meet the standards necessary for him to testify as an expert. See Apr. 10 Tr. at 96:14-20 (Nayback).
The Court inquired of Harry whether he would still want Dr. Roll to testify if the Court did not allow Kysar to testify regarding Doe’s demeanor. See Apr. 10 Tr. at 97:2-6 (Court). Harry responded that he would. See Apr. 10 Tr. at 97:7 (Sa-more).
The Court stated that it is inclined to allow Kysar to testify about Doe’s demean- *1217or, as “most .people ... do think demeanor is probably something that [factors] in determining credibility.” Apr. 10 Tr. at 98:22-25 (Court). The Court stated that it would take the Roll MIL under advisement and would consider whether Dr. Roll’s testimony may be limited so that “he provides some basic information without in any way commenting on this case.” Apr. 10 Tr. at 99:2-15 (Court). The Court also stated that Dr. Roll’s testimony may not meet the standards necessary for admission of expert testimony. See Apr. 10 Tr. at 99:15-17 (Court). The Court stated that Dr. Roll must provide the Court with “no more than ten pages of at least three articles that are highlighted that supports what he says,” and, that if he cannot, then the Court will likely exclude Dr. Roll’s testimony under Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Apr. 10 Tr. at 100:1-6 (Court). The Court stated that it is inclined to “find some ground to allow some testimony, but try to keep it as far away from him commenting on the incident in this case as much as possible.” Apr. 10 Tr. at 101:1-4 (Court). The Court noted that it excluded Dr. Roll’s testimony entirely in United States v. Sanchez, No. CR 02-2283 (Doc. 101). See Apr. 10 Tr. at 101:5-9 (Court).
6. Dr. Roll’s Supporting References.
Harry provided the Court with Supporting Reference for Opinions for Samuel Roll and Background Scientific Basis, on April 16, 2013. See Doc. 136 (“Roll Report”). Dr. Roll’s first point is that the absence of references to demeanor and manifest behavior as a reliable tools of psychological assessment demonstrates the negative — that is, demonstrates that demeanor and behavior are not reliable tools of psychological assessment. See Roll Report at 1 (citing Gary B. Melton, John Petrila, Norman G. Poythress, & Christopher Slobogin, . Psychological Evaluations for the Courts: A Handbook for Mental and Health Professionals and Lawyers 43-68 (3d ed.2007)); 1 Robert R. Holt, Methods in Clinical Psychology xi, xii-iv (1978).4 Dr. Roll also notes that in a “famous Sherlock Holmes story, the fact that a dog did not bark helped Holmes solve the mystery.” Roll Report at 1. Dr. Roll analogizes this Sherlock Holmes to-his statement that “the following references are ones in which one would expect to list demeanor and manifest behavior as measures if they were considered reliable in psychological assessment.” Roll Report at 1 (citing Melton, Petrila, Poythress & Slobogin, supra, at 43-68; Holt, supra, at xi, xii-iv). In the Psychological Evaluations for the Courts: A Handbook for Mental and Health Professionals and Lawyers, the authors state that “a variety of tools are available for the purposes of assessing the client’s functions and impairments, diagnosing mental, disorders, and planning treatment” in a therapeutic context, including interviewing, testing, and retrieval of archival or third-party information, the “most important” of which “is the clinical interview.” Melton, Petrila, Poythress & Slobogin, supra, at 43-44. The authors relate that the same tools are useful for forensic evaluations. See Melton, Petrila, Poythress & Slobogin, supra, at 44. The authors contrast a *1218therapeutic setting, in which a client’s perspective is of utmost importance, with a forensic setting, in which accuracy is of the utmost importance, and, therefore, places a greater emphasis on perspectives attained from multiple sources. See Petrila, Poythress & Slobogin, supra, at 44. The authors note that clinical assessment instruments which are often useful in the therapeutic context — “because they assess general psychological constructs (e.g., intelligence, depression, academic abilities, anxiety level)” — are the “least likely” to be helpful in forensic evaluations because the psychological constructs assessed are “far removed from the specific psychological issues of interests to the legal decisionmaker (e.g, competence to stand trial, best interests of the child, capacity to manage one’s personal and financial affairs).” Melton, Petrila, Poythress & Slobogin, supra, at 48. The authors note that forensically relevant instruments, which are used to assess clinical constructs, are more helpful that clinical assessment instruments, because forensically relevant instruments assess constructs “most relevant to evaluation of persons who are involved in the legal system in some way (e.g., psychopathy, response style, violence risk).” Melton, Petrila, Poythress & Slobogin, supra, at 48. The authors note that a final category of psychological assessment tools, forensic assessment instruments, which assess “psycholegal capacities, abilities, or knowledge, such a criminal defendant’s competence to stand trial” are often used to supplement or replace traditional therapeutic assessment procedures. Melton, Petrila, Poythress & Slobogin, supra, at 48. The authors later state that “most psychological tests have neither been developed nor validated specifically to inform judgments about legally relevant behavior.” Melton, Petrila, Poythress & Slobogin, supra, at 50. The authors also discuss certain situations in which hypnosis may be helpful for a forensic assessment, such as when an individual reports memory problems. See Melton, Petrila, Poythress & Slobogin, supra, at 55.
Melton, Petrila, Poythress and Slobogin also warn forensic examiners about the dangers of relying on “clinical impressions or psychological testing,” to describe an examinee’s response style. Melton, Petri-la, Poythress & Slobogin, supra, at 56. The authors note that a response style may be characterized as “honesi/candid,” “exaggerated/fabricated,” “denying/minimizing,” “irrelevant,” and a combination of these styles. Melton, Petrila, Poythress & Slobogin, supra, at 57. They warn that, unlike patients and clients in a clinical setting, individuals being psychologically examined for forensic purposes often have “much to gain from a particular finding or formulation about the case.” Melton, Petrila, Poythress & Slobogin, supra, at 56. Accordingly, the authors encourage forensic psychological examiners to develop a “low threshold for suspecting dissimulation” and a “conservative stance with respect to reaching conclusions” that an examinee has not responded candidly during an examination. Melton, Petrila, Poythress & Slobogin, supra, at 57. The authors discuss few methodologies for assessing whether an individual is overstating his or her symptoms in the hopes of securing a particular result in litigation, and the authors’ discussion of these methodologies focuses on assessing an individual’s report of her or her symptoms, and not an individual’s demeanor during an interview. See Melton, Petrila, Poythress & Slobogin, supra, at 59-60. Melton, Pe-trila, Poythress and Slobogin also explain that there is little, if any, useful research that may aid an examiner in identifying feigned denial, guardedness, and mini*1219mization. See Melton, Petrila, Poythress & Slobogin, supra, at 61-62.
Also in support of Dr. Roll’s theory that the absences of references to demeanor and behavior as reliable psychological assessment tools, Dr. Roll provides an excerpt from Methods in Clinical Psychology’s table of contents. See Roll Report at 1, 30-33. The table of contents denote relevant chapters on the topic of “Individuality and Generalization in the Psychology of Personality: A Theoretical Rationale for Personality Assessment and Research.” Holt, supra, at xiii. The headings for the following chapters relate to “The Thematic Apperception Test,” “The Rorschach,” and “Other Methods,” including “the Szondi Test,” “Self-Evaluations,” and “Analyzing Defense of Self-Esteem.” Holt, supra, at xn-iv. The materials included in the Roll Report do not define these psychological assessment tools.
Dr. Roll also provides the Court with materials that, he states, directly “reference ... the lack of reliability of behavior observation in assessment of personality.” Roll Report at 1 (citing James N. Butcher, Clinical Personality Approaches 225 (Oxford 1995); H.M. Knoff, The Personality Assessment Report and the Feedback and Planning Conference 552 (Guilford Press 1986)). The excerpt from Clinical Personality Approaches reads:
“For ‘Behavior Observations’ to play an effective role in test reports, a rationale is required that involved greater, specificity than the view that all behavior is important and that recognizes that these accounts have a legitimate and even indispensable role to play in the report.”
Roll Report at 1 (quoting Butcher, supra, at 225). The excerpt from The Personality Assessment Report and the Feedback and Planning Conference reads: “To date there is no empirically sound observational system available for completion by the practitioner during or immediately after the individual assessment session; nor are there procedures to control the potential bias when data (observed or recalled) are generalized into diagnostic hypothesis.” Roll Report at 2 (quoting Knoff, supra, at 552).
Lastly, Dr. Roll draws on the psychological community’s general discrediting of the polygraph test to support his theory that demeanor and behavior are not linked to reliability or credibility. See Roll Report at 3 (citing American Psychological Association, The Polygraph in Doubt, APA Monitor 71 (2004); W. Iacóno, Forensic “Lie Detection”: Procedures Without Scientific Basis, 1 Psychology Practice 75-86 (2001)). Dr. Roll prefaces the resources he attaches with the statement: “There is now consensus within the scientific community that the polygraph as a way of systematically collecting behavioral data is no more useful or reliable than the simple recording of the patients’ obvious demeanor and behavior.” Roll Report at 3. The American Psychological Association’s discussion of polygraph tests explains that “[psychologists have repeatedly told U.S. courts that polygraph tests ... are theoretically unsound and. not valid in assessing honesty.” American Psychological Association, supra, at 1. The American Psychological Association further states that a recent National Research Council panel “found no evidence of polygraph validity.” American Psychological Association, supra, at 1. The American Psychological Association quotes a psychologist, Dr. Leonard Saxe, a polygraph researcher at Brandéis University, as saying, “ ‘There is no unique physiological reaction to deception.’ ” American Psychological Association, supra, at 1.
The abstract from Iacono’s article states that the polygraph test “is based on an implausible set of assumptions that makes *1220it biased against innocent individuals and easy for guilty persons to defeat using countermeasures.” Iacono, supra, at 75. Iacono contrasts the polygraph test, which he refers to as the “control question test” or “CQT,” with the “relevant/irrelevant test (RIT).” Iacono, supra, at 76-77. When administering a RIT, examiners would ask a suspect irrelevant questions “dealing with unimportant facts known to both examiner and suspect ( ... “Are you sitting down? ...),” and the examiners would conclude that a suspect’s strong response to a relevant question (the answer to which was presumably unknown to the examiner), indicates a suspect’s guilt. Ia-cono, supra, at 76. Iacono states that the RIT “has been found wanting even by proponents of polygraph because the irrelevant items do not provide an adequate control for the emotional impact of simply being presented with the accusatory relevant question.” Iacono, supra, at 76. The CQT, on the other hand, uses “control” questions to elicit lies from suspects by asking questions such as: “Have you ever hurt someone to get revenge,” or “Have you ever lied to a person in a position of authority?” Iacono, supra, at 77. The theory behind this test is that most people have committed acts about which the control questions probe, and the assumption is that most people will have an urge to lie about these misdeeds. Iacono explains that the CQT requires two assumptions to be true for its results to be valid: (i) that innocent individuals are more responsive to control than relevant questions; and (ii) that guilty persons respond more intensely to relevant than control questions. The basis of Iacono’s article is that both of these assumptions are “easily challenged.” Iacono, supra, at 77. Iacono states that the CQT suffers from the same flaw as the RIT, in that neither test adequately control for the “emotional impact of being asked the accusatory relevant question.” Iacono, supra, at 77. Iacono also attacks the assumption that guilty persons will respond more strongly than innocent persons to relevant questions, as he asserts that “simple countermeasures such as curling the toes, lightly biting the tongue, or performing mental arithmetic when control questions are asked” can artificially augment a response to control question. Iaco-no, supra, at 78. Iacono discusses the difficulties facing researches attempting to “accurately estimate the validity of the CQT.” Iacono, supra, at 79. See Iacono, supra, at 79-82. Lastly, Iacono discusses his own survey of members of the Society for Psychophysiological Research and the Fellows of the American Psychological Association’s Division of General Psychology, and he states that “the great majority” of respondents “held that the CQT could be defeated by countermeasures that were easily learned and they expressed substantial skepticism in the validity of friendly CQTs and in the accuracy claims of polygraph proponents.” Iacono, supra, at 83-84. In conclusion, Iacono states that “[a]l-though the CQT may be useful as an investigative aid and tool to induce confessions, it does not pass muster as a scientifically credible test.” Iacono, supra, at 84.
7. Dr. Roll’s Proffer at Trial.
On May 8, 2013, before the jury was called into trial, Harry requested permission to present more evidence from Dr. Roll regarding excerpts from psychological journals that Dr. Roll submitted to the Court. See Transcript of Trial at 2:9-17 (taken May 8, 2013)(Samore)(“May 8 Tr.”). Harry requested the Court to consider the March 29, 2013 and April 10, 2013 hearings, in addition to Dr. Roll’s testimony on May 8, 2013, in deciding whether to allow Dr. Roll to testify at trial. See May 8 Tr. at 14:21-15:5 (Samore). The United States objected to the Court considering *1221Dr. Roll’s previous testimony, and stated that Dr. Roll’s testimony “has already been laid out sufficiently on direct examination,” and in his report. May 8 Tr. at 15:8-14 (Nayback). The United States objected to Dr. Roll testifying again, and asserted that it has no notice regarding what Dr. Roll will say and is not prepared to cross-examine him at trial. See May 8 Tr. at 15:15-22 (Nayback).
LAW REGARDING RELEVANT EVIDENCE
The threshold issue in determining the admissibility of evidence is relevance. As a baseline, under the Federal Rules of Evidence, all evidence that is relevant is admissible — unless another law or rule excludes the evidence — and any evidence that is not relevant is not admissible. See Fed.R.Evid. 402. The standard for relevance is liberal. See United States v. Leonard, 439 F.3d 648, 651 (10th Cir.2006). (“Rule 401 is a liberal standard.”)(citing United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir.1998)). The evidence need only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. See United States v. Leonard, 439 F.3d at 651. “[A] fact is ‘of consequence’ when its existence would provide the fact-finder with a basis for making some inference, or chain of inferences, about an issue that is necessary to a verdict,” but it only need to have “any tendency” to do so. United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir.2007). See United States v. Leonard, 439 F.3d at 651; United States v. McVeigh, 153 F.3d at 1190. Although the threshold burden is low, the rules do “not sanction the carte blanche admission of whatever evidence a defendant would like. The trial judge is the gatekeeper under the Rules of Evidence.” United States v. Jordan, 485 F.3d at 1218.
LAW REGARDING RULE 403
Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence’s probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). “[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403].” United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)). The Tenth Circuit has reminded district courts that they should be “mindful” that “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly.” United States v. Smalls, 605 F.3d 765, 787 (10th Cir.2010).
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999), and the trial court’s discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir.1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court of the United States has noted:
In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad dis*1222cretion to a district court’s evidentiary rulings.... This is particularly true with respect to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (quoting 1 Steven Alan Childress & Martha S. Davis, Fed. Standards of Review § 4.02, at 4-16 (3d ed.1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (“Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403.... ”).
Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury’s attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). Evidence is not unfairly prejudicial merely because it damages a party’s case. See United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir.2008); United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir.1991). Rather, “[t]o be unfairly prejudicial, the evidence must have ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” United States v. Caraway, 534 F.3d at 1301 (quoting Fed.R.Evid. 403 advisory committee note).
LAW REGARDING EXPERT TESTIMONY
“Since the Supreme Court of the United States decided Daubert v. Merell Dow Pharmaceuticals, Inc., trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide.” United States v. Gutierrez-Castro, 805 F.Supp.2d 1218, 1224 (D.N.M.2011) (Browning, J.). “The Court now must not only decide whether the expert is qualified to testify, but, under Daubert v. Merrell Dow Pharmaceuticals, Inc., whether the opinion testimony is the product of a reliable methodology.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224. “Daubert v. Merrell Dow Pharmaceuticals, Inc. requires a court to scrutinize the proffered expert’s reasoning to determine if that reasoning is sound.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224.
1. Rule 702.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. Rule 702 thus requires the trial court to “determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir.1994). Rule 702 uses a liberal definition of “expert.” Fed.R.Evid. *1223702 advisory committee’s note to 1972 proposed rules (“[WJithin the scope of this rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called ‘skilled’ witnesses, such as bankers or landowners testifying to land values.”). An expert is “required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the pertinent admissibility requirements are met. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1266 (D.N.M.2005) (Browning, J.)(citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness “may qualify as an expert by knowledge, skill, experience, training, or education and ... the expert ... should not be required to satisfy an overly narrow test of his own qualifications.” Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir.1974) (internal quotation marks omitted). Courts should, under the Federal Rules of Evidence, liberally admit expert testimony, see United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir.1995) (describing rule 702 as a “liberal standard”), and the trial court has broad discretion in deciding whether to admit or exclude expert testimony, see Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 647 (10th Cir.1991) (noting the trial court’s decision -will not be overturned “unless it is manifestly erroneous or an abuse of discretion”).
2. The Standard in Daubert v. Mer-rell Dow Pharm., Inc.
In its gatekeeper role, a court must assess the reasoning and methodology underlying an expert’s opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786; Witherspoon v. Navajo Ref. Co., LP, No. 03-1160, 2005 WL 5988649, at *2 (D.N.M. July 18, 2005) (Black, J.)(citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir.2003)). The Supreme Court articulated a non-exclusive list of factors that weigh into a district court’s first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness’ method is generally accepted as reliable in the relevant medical and scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786. The court is also to consider whether the witness’ conclusion represents an “unfounded extrapolation” from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.:
Rule 702 requires the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” [Bitler v. A.O. Smith *1224Corp., 391 F.3d 1114, 1120 (10th Cir.2004)] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’” Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786). In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786....
397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786)). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow Pharm., Inc., to non-scientific expert testimony. See 526 U.S. at 141, 119 S.Ct. 1167 (“We conclude that Daubert’s general holding — setting forth the trial judge’s general ‘gatekeeping’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). The Supreme Court recognized in Kumho Tire Co. v. Carmichael that the factors from Daubert v. Merrell Dow Pharm., Inc., will not apply to all cases:
Our emphasis on the word ‘ma/ thus reflects Daubert’s description of the Rule 702 inquiry as a flexible one. Dau-bert makes clear that the factors it mentions do not constitute a definitive checklist or test. And Daubert adds that the gatekeeping inquiry must be tied to the facts of a particular case.
Kumho Tire Co. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (internal quotation marks omitted).
In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619, 2006 WL 4060665 JB/DJS, at *11 (D.N.M. Sept. 26, 2006) (Browning, J.)(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). “Despite this focus on methodology, ‘an expert’s conclusions are not immune from scrutiny ... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665, at *11 (alterations omitted)(internal quotation marks omitted). The proponent of the expert’s opinion testimony bears the burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. *1225As the Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002):
Because the district court has discretion to consider a variety of factors in assessing reliability under Daubert, and because, in light of that discretion, there is not an extensive body of appellate case law defining the criteria for assessing scientific reliability, we are limited to determining whether the district court’s application of the Daubert manifests a clear error of judgment or exceeds the bounds of. permissible choice in the circumstances .... Thus, when coupled with this deferential standard of review, Daubert’s effort to safeguard the reliability of science in the courtroom may produce a counter-intuitive effect: different courts relying on the essentially the same science may reach different results.
289 F.3d at 1206. As the United States Court of Appeals for the Ninth Circuit noted in Claar v. Burlington N.R.R. Co., 29 F.3d 499 (9th Cir.1994):
Coming to a firm conclusion first and then doing research to support it is the antithesis of this method. Certainly, scientists may form initial tentative hypotheses. However, scientists whose conviction about the ultimate conclusion of their research is so firm that they are willing to aver under oath that it is correct prior to performing the necessary validating tests could properly be viewed by the district court as lacking the objectivity that is the hallmark of the scientific method.
29 F.3d at 502-503.
Once reliability is established, however, it is still within the district court’s discretion to determine whether expert testimony will be helpful to the trier of fact. In making that determination, the court should consider, among other factors, the testimony’s relevance, the jurors’ common knowledge and experience, and whether the expert’s testimony may usurp the jury’s primary role as the evaluator of evidence.
Ram v. N.M. Dep’t of Env’t, No. CIV 05-1083, 2006 WL 4079623 JB/WPL, at *10 (Dec. 15, 2006) (Browning, J.)(citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.2006)).
An untested hypothesis does not provide a scientific basis to support an expert opinion. See Norris v. Baxter Healthcare Corp., 397 F.3d at 887 (“[A]t best, silicone-associated connective tissue disease is an untested hypothesis. At wqrst, the link has been tested and found to be untenable. Therefore, there is no scientific basis for any expert testimony as to its specific presence in Plaintiff.”); In re Breast Implant Litig., 11 F.Supp.2d 1217, 1228 (D.Colo.1998) (“An untested hypothesis cannot be a scientifically reliable basis for an opinion on causation.”). A court is not required “to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). See Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir.2002) (noting a lack of similarity between animal studies and human studies); Tyler v. Sterling Drug, Inc., 19 F.Supp.2d 1239, 1244 (N.D.Okla.1998) (“Test results on animals are not necessarily reliable evidence of the same reaction in humans.”). Courts have excluded experts’ opinions when the experts depart from their own established standards. See Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th Cir.2004) (“The district court noted that [the expert]’s opinion did not meet the standards of fire investí-*1226gation [the expert] himself professed he adhered to.”); Magdaleno v. Burlington N. R.R. Co., 5 F.Supp.2d 899, 905 (D.Colo.1998) (“In sum, [the expert’s methodology is not consistent with the methodologies described by the authors and experts whom [the expert] identifies as key authorities in his field.”).
3. Necessity of Evaluating an Issue Under Daubert v. Merrell Dow Pharm., Inc.
The restrictions in Daubert v. Merrell Dow Pharm., Inc. apply to both “novel” expert testimony and “well-established propositions.” 509 U.S. at 593 n. 11, 113 S.Ct. 2786 (“Although the Frye5 decision itself focused exclusively on ‘novel’ scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence.”). “Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593 n. 11, 113 S.Ct. 2786. “Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593 n. 11, 113 S.Ct. 2786.
“[W]hen experts employ established methods in their usual manner, a district court need not take issue under Daubert .... ” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir.2009). “[H]owever, where established methods are employed in new ways, a district court may require further indications of reliability.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Whether courts have accepted theories underlying an expert’s opinion is a relevant consideration in determining whether expert testimony is reliable. See Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780 (“The case law indicates that the courts are not unfamiliar with the PCR methodology, and in fact some courts have indicated their acceptance of it.”).
DR. ROLL IN THE DISTRICT OF NEW MEXICO
Dr. Roll frequently appears in court in the District of New Mexico. In United States v. Lopez-Hodgson, 333 Fed.Appx. 347 (10th Cir.2009) (unpublished), the Honorable William J. Holloway, Jr., United States Circuit Judge for the United States Court of Appeals for the Tenth Circuit, wrote an opinion for a unanimous panel including the Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, and the Honorable Mary Beck Briscoe, Chief United States Circuit Judge for the Tenth Circuit, determining that the Honorable C. Leroy Hansen, Senior United States District Judge for the District of New Mexico, did not err in finding a defendant competent to stand trial over Dr. Roll’s recommendation. See 333 Fed.Appx. at 354-55. Although Dr. Roll stated that the defendant suffered from mild mental retardation, and was therefore incompetent, Judge Hansen relied on the findings of another expert forensic psychologist who was “very confident” that the defendant was competent to stand trial. 333 Fed.Appx. at 354-55. The other expert noted in support of his confidence *1227that the defendant could memorize portions of the sentencing guidelines. See 333 Fed.Appx. at 354-55. Judge Holloway stated that Dr. Roll’s finding that the defendant’s mild mental retardation and “blending of schizophrenic thought disorders with paranoid aspects,” rendered him unable to assist in his own defense, 333 Fed.Appx. at 349, “provided, at best, questionable support for [his] conclusion that Mr. Lopez-Hodgson was incompetent.” 333 Fed.Appx. at 355.
In United States v. McQuade Q., 403 F.3d 717 (10th Cir.2005), the Honorable Bobby R. Baldock, Senior United States Circuit Judge for the Tenth Circuit, wrote for a unanimous panel affirming the Honorable James Aubrey Parker, Senior United States District Judge for the District of New Mexico’s reliance on Dr. Roll’s testimony that a juvenile defendant suffered from an “extreme anti-social personality disorder” supported, with other factors, the juvenile’s transfer to adult status. 403 F.3d at 721. Judge Baldock noted that Dr. Roll’s testimony that the defendant would need treatment one to three times a week by a licensed psychologist for his personality disorder warranted the juvenile’s transfer to adult status so that he could benefit from the increased resources in the adult criminal system. See 403 F.3d at 721.
Additionally, in 1986, the Tenth Circuit relied on Dr. Roll’s testimony, in part, in reversing the Honorable Santiago E. Campos, former United States District Judge for the District of New Mexico’s directed verdict in a civil case in favor of a defendant on a claim of negligently inflicting psychological injury. See Whalley v. Sakura, 804 F.2d 580, 584-86 (10th Cir.1986). Writing for a majority, Judge Holloway, noted that Dr. Roll testified that the plaintiff’s mental distress was related to the breast reconstruction that the defendant performed on the plaintiff and its aftermath — which involved infections, a reopening of the incision, and the plaintiffs flesh falling out. See 804 F.2d at 584. Judge Holloway also stated that the district court could have properly relied on Dr. Roll’s testimony, even though he is a clinical psychologist and not a psychiatrist.
[Defendant points to no New Mexico law requiring expert medical testimony by psychiatrists in cases involving the negligent infliction of mental distress.
Although psychologists like Dr. Roll are not licensed to practice medicine, see N.M. Stat. Ann. § 61-9-17 (1985 supp.) (repeal effective July 1, 1992), they typically undergo extensive training in the diagnosis and treatment of mental disease. Jenkins v. United States, 307 F.2d 637, 644-45 (D.C.Cir.1962) (en banc). New Mexico’s Professional Psychologist Act requires substantial training and experience for certification as a clinical psychologist. See N.M. Stat. Ann. §§ 61-9-9, 61-9-10, 61-9-11 (1978) (repeal effective July 1, 1992). Dr. Roll was more than qualified under this statutory scheme. See V R. 552. He received a doctorate degree in clinical psychology from Pennsylvania State University, served as an intern at the University of Pittsburgh, and completed two years of supervised work at the Yale Psychiatric Institute. V R. 552-54. At the time of trial, he was serving as a professor of psychology and psychiatry at the University of New Mexico. V R. 554. He had published a number of scholarly articles on psychology and received several national honors. V R. 553-55....
The New Mexico courts have relied on credentials like Dr. Roll’s in allowing psychologists to testify on a criminal defendant’s sanity, State v. Padilla, 66 *1228N.M. 289, 347 P.2d 312, 318 (1959), and on “cause of any change in [a] plaintiffs mental ability,” Winder v. Martinez, 88 N.M. 622, 545 P.2d 88, 92 (Ct.App.1975), cert. denied, 89 N.M. 6, 546 P.2d 71 (1976); see Higgins v. Hermes, 89 N.M. 379, 552 P.2d 1227, 1229 (Ct.App.) (upholding admission of a psychologist’s testimony on the extent of plaintiffs mental anguish), cert. denied, 90 N.M. 8, 558 P.2d 620 (1976). See also, Hooper v. Industrial Commission, 126 Ariz. 586, 617 P.2d 538, 540 (Ct.App.1980) (allowing psychologist to testify that an industrial accident caused plaintiffs mental disability); Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349, 1355 (1979) (allowing psychologist to give expert opinion on the cause of plaintiffs “driving phobia”); Landreth v. Reed, 570 S.W.2d 486, 488-89 (Tex.Ct.Civ.App.1978) (allowing psychologist to testify regarding the physical manifestations of plaintiffs emotional shock); Durflinger v. Artiles, 727 F.2d 888, 890-91 (10th Cir.1984) (applying Kansas law) (holding that a clinical psychologist can testify regarding a physician’s standard of care in making a discharge decision).
Whalley v. Sakura, 804 F.2d at 585. Judge Holloway held, accordingly, that Dr. Roll’s testimony regarding the cause of the plaintiffs’ emotional distress, in conjunction with the other testimony presented at trial, was sufficient “to present a claim for submission to the jury of negligent infliction of psychological injury with emotional distress and physical manifestations.” 804 F.2d at 585-86.
In United States v. Lewellen, No. CR 11-1524 JB, 2012 WL 2175769 (D.N.M. June 5, 2012) (Browning, J.), the Court used Dr. Roll’s psychological evaluation of a defendant, Ira Lewis Lewellen, in the Court’s analysis whether to depart downwards in Lewellen’s sentence under U.S.S.G. § 5K2.20(b) on the basis of aberrant behavior. The Court noted that Dr. Roll’s psychological evaluation of Lewellen indicated that Lewellen did not have “personality characteristics that suggest he is a person likely to commit crimes or that he will commit more crimes in the future.” 2012 WL 2175769, at *9. In United States v. Ganadonegro, 805 F.Supp.2d 1188 (D.N.M.2011) (Browning, J.), the Court allowed Dr. Roll to testify on some, but not all, of the Defendant Kalvest Ganadoneg-ro’s proffered topics. The Court found that, in light of Dr. Roll’s credentials and that the tests he used to evaluate Ganado-negro were subject to peer review, Dr. Roll’s testimony that Ganadonegro’s language skills, cultural background, and personality created a likelihood that he gave false admissions was reliable. See 805 F.Supp.2d at 1201-03. On the other hand, the Court determined that testimony from Dr. Roll that some defendants give false testimonies, was irrelevant. The Court concluded that such testimony would relate to the credibility of Ganadonegro’s statements, which is “ ‘not an appropriate subject for expert testimony.’ ” United States v. Ganadonegro, 805 F.Supp.2d at 1213 (quoting United States v. Adams, 271 F.3d at 1244-45). The Court concluded that the Tenth Circuit’s opinions “strongly suggest ] that Dr. Roll’s testimony that there are a host of language factors, cultural factors, and personality factors that would have increased the probability of Ganado-negro making false admissions does little more than vouch for the credibility of Ga-nadonegro’s statement.” 805 F.Supp.2d at 1213. On the other hand, the Court allowed Dr. Roll to offer testimony that went to the voluntariness of Ganadonegro’s statements, drawing a distinction between testimony regarding credibility and regarding voluntariness by prohibiting Dr. Roll from testifying “generally about the phenomenon of false confessions and that *1229Ganadonegro fits the profile of someone who would give a false confession,” but allowing t)r. Roll to testify that Ganado-negro’s test results indicate “the existence of identifiable medical disorders in the form of mental defects,” which may have made him susceptible to suggestion. 805 F.Supp.2d at 1216.
In United States v. Sorto, No. CR 07-0158 JB, 2008 WL 4104121 (D.N.M. May 5, 2008) (Browning, J.), the Court did not depart downward based on a defendant’s alleged exposure to extreme violence as a child from his experience with war in El Salvador, despite a report from Dr. Roll purporting to link the defendant’s childhood experiences with his criminal history, offense conduct, and drug abuse. See 2008 WL 4104121, at **2, 5. In United States v. Jones, 411 F.Supp.2d 1262 (D.N.M.2005) (Browning, J.), the Court determined that Dion Lamy, a defendant, voluntarily made incriminating statements to FBI agents, notwithstanding Dr. Roll’s testimony that Lamy had a low level of mental functioning and suffered from an “acquiescent set” — a “purported tendency to defer to those in authority.” 411 F.Supp.2d at 1270. The Court noted that Dr. Roll’s testimony, which demonstrated that Lamy’s intelligence was below average, did not establish that Lamy had difficulty understanding his rights, especially in light of Lamy’s previous encounters with the criminal justice system. See 411 F.Supp.2d at 1269. Additionally, the Court determined that, although Lamy may “generally wish to please authority,” his ability to defy authority, as evidenced by his initial statement “that he had nothing to do with the alleged rape,” indicated that his statements were not involuntarily made because of a propensity for suggestibility. 411 F.Supp.2d at 1270.
Last, in United States v. Waylon Sanchez, No. CR 02-2283 JB (D.N.M. filed Oct. 7, 2003) (Browning, J.), the Court excluded Dr. Roll’s testimony that a defendant, Waylon Sanchez, possessed “a number of personality features that are inconsistent with the crimes with which he is charged,” and that Sanchez’ personality features “are consistent with giving a false confession in an effort to help a loved one, namely his girlfriend, Paula Padilla.” Slip op. at 2. Relying on United States v. Adams, 271 F.3d 1236 (2001), in which Judge Kelly excluded testimony from a psychologist that a defendant’s “neurocognitive impairment and dependent personality structure” supported the possibility that the defendant gave false incriminating statements to the police, the Court reasoned that Dr. Roll’s testimony, similar to the proffered expert testimony in United States v. Adams, was not relevant and had little probative value, because whether Sanchez’ confession and subsequent retraction thereof is consistent with his personality trait did not aid the jury in determining whether Sanchez committed the alleged crime. United States v. Waylon Sanchez, Slip op. at 4, 6-7 (citing United States v. Adams, 271 F.3d at 1241-42, 1245-46) Additionally, the Court found that, although Dr. Roll’s testing methods were based on peer-reviewed techniques, the conclusions which Dr. Roll reached from those methods had not been subjected to peer review. The Court determined, thus, that it could not assess whether Dr. Roll’s testimony was reliable. See Slip op. at 8-10. The Court, therefore, did not allow Dr. Roll to testify at Sanchez’ trial. See Slip op. at 10-11.
LAW REGARDING RULE 803(4)
Hearsay testimony is generally inadmissible. See Fed.R.Evid. 802. ' The Federal Rules of Evidence contain a number of exceptions, however, to the hearsay prohibition. See Fed.R.Evid. 803, 804. One of these exceptions, rule 803(4), excepts from *1230the general bar on hearsay “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Fed.R.Evid. 803(4).
1. Rationale for the 803(4) Exception.
This exception is premised on the rationale that a patient’s statements to his or her. physician are likely to be particularly reliable because the patient has a self-interested motive to be truthful. The patient knows that the efficacy of his or her medical treatment depends upon the accuracy of the information that he or she provides to the doctor. See United States v. Joe, 8 F.3d at 1493. Stated differently, “a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility.” White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).
The selfish-interest/treatment rationale, therefore, supports the exception. In United States v. Joe, the Tenth Circuit stated:
The Rule 803(4) exception to the hearsay rule is founded on a theory of reliability that emanates from the patient’s own selfish motive — her understanding “that the effectiveness of the treatment received will depend upon the accuracy of the information provided to the physician.” 2 McCormick on Evidence § 277, at 246-47 (John W. Strong ed., 4th ed.1992).
United States v. Joe, 8 F.3d at 1493-94. It is the patient’s self-interest in furnishing accurate information that provides the guarantee of trustworthiness which justifies exempting these out-of-court statements from the general hearsay prohibition. See White v. Illinois, 502 U.S. at 356, 112 S.Ct. 736 (“[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony.”).
In United States v. Joe, the Tenth Circuit observed that the United States Courts of Appeals for the Fourth and Eighth Circuits have applied a two-part test to determine a statement’s admissibility under rule 803(4). See 8 F.3d at 1494 n. 5 (citing United States v. Renville, 779 F.2d 430, 436 (8th Cir.1985)). Under the first half of the test, “the de-clarant’s motive in making the statement must be consistent with the purposes of promoting treatment.” 8 F.3d at 1494 n. 5. Second, “the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.” 8 F.3d at 1494 n. 5.
In United States v. White, 11 F.3d 1446 (8th Cir.1993), the defendant was convicted of sexually abusing his wife’s two grandsons, R.H. and L.H., who were nine and seven years old, respectively, at the time of the defendant’s trial. On appeal, the defendant argued that statements which R.H. made to a social worker were not admissible under rule 803(4). The Eighth Circuit noted that, for the statements to be admissible under rule 803(4), the government “must show that R.H. understood that he was speaking to a trained professional for the purposes of obtaining diagnosis of, or providing .treatment for, emotional or psychological injuries.” 11 F.3d at 1449. The Eighth Circuit concluded: “There is nothing in the record to suggest that R.H. appreciated that it was in his best interests to tell the truth and was therefore unlikely to lie.” 11 F.3d at 1450. *1231“How [the social worker] explained her role and purpose to R.H., how she asked him questions, and how and where she conducted the interview are matters that can provide evidence ‘that the child understood the physician’s [or therapist’s] role in order to trigger the motivation to provide truthful information.’ ” 11 F.3d at 1450 (quoting United States v. Barrett, 8 F.3d 1296, 1300 (8th Cir.1993)).
The Eighth Circuit in United States v. White also relied on Ring v. Erickson, 983 F.2d 818 (8th Cir.1992), a habeas case which held that the admission at trial, under rule 803(4) of Minnesota’s Rules of Evidence, of out-of-court statements that a three-year-old child, C.R., to a physician, violated the petitioner’s confrontation rights. Minnesota’s rule 803(4) was identical to federal rule 803(4). In so holding, the Eighth Circuit said:
C.R.’s mother, not C.R., sought the “medical treatment,” and there was no evidence suggesting that at the time of the interview C.R. even knew Dr. Levitt was a doctor. C.R. was three years old at the time. The principal reason why 803(4) is a traditional hearsay exception automatically carrying the indicia-of-reli-ability label is because of the selfish-motive doctrine. This exception is based on the belief that a person seeking medical treatment is unlikely to lie to a doctor she wants to treat her, since it is in her best interest to tell the truth. White [v. Illinois], [502] U.S. at [354]-[58], 112 S.Ct. 736
983 F.2d at 820. See People of Territory of Guam v. Ignacio, 10 F.3d 608, 613 n. 3 (9th Cir.1993) (“[W]hether a statement is admissible under the medical treatment exception does not depend solely on the intent of the questions, but also on whether the respondent understands herself to be providing information for purposes of medical treatment.”).
In Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988), retired Associate Justice Lewis F. Powell Jr., sitting by designation on the United States Court of Appeals for the Fourth Circuit, concurred in part and dissented in part, stating:
[T]here is no evidence in the record that [the girl’s] frame of mind was comparable to a patient seeking treatment.... [T]here is no evidence that Dr. Harrison ever explained to [the child] that his questions and relationship with her arose, at least in part, from a desire to treat her.... Absent a finding that [the child] made her statements believing they would be used by Dr. Harrison to help her, I am reluctant to rest my decision on the cases relied on by the court.
846 F.2d at 951-52. See Oldsen v. People, 732 P.2d 1132, 1135-36 (Colo.1986) (holding statements inadmissible under Colo. R. Evid. 803(4) — which was identical to the federal rule — because there was no evidence that the five-year-old child “was capable of recognizing, at the time the challenged statements were made, the need to provide accurate information for purposes of medical diagnosis or treatment within the meaning of Fed.R.Evid. 803(4)”). The Supreme Court of Colorado in Oldsen v. People held that the prosecution, as proponent of the hearsay statements, had the burden of establishing the foundation for admitting them under an exception to the hearsay rule. See 732 P.2d at 1135 n. 7. The court in Oldsen v. People upheld the conviction, however, because the challenged testimony was admitted properly on an alternative ground. See 732 P.2d at 1137. But see United States v. George, 960 F.2d 97, 100 (9th Cir.1992) (“As a general matter, the age of the child and her other personal characteristics go to the weight of the hearsay statements rather than their admissibility.”). In State v. *1232Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), the Supreme Court of Arizona upheld the admission of statements under rule 803(4) of the Arizona Rules of Evidence — which also was identical to the federal rule — concluding:
The record is not clear regarding [the child’s] motive in making the challenged statements. The record does indicate, however, that [the] statements were elicited in the course of treatment. And nothing in the record indicates that [the child victim’s] motive in making these statements was other than as a patient seeking [or at least needing] treatment.
State v. Robinson, 153 Ariz. at 199, 735 P.2d at 809 (internal quotation marks and citations omitted).
2. The Tenth Circuit’s Test for Admissibility Under Rule 803(4).
“[T]he test for admissibility under rule 803(4) is whether the subject matter of the statements is reasonably pertinent to diagnosis or treatment.” United States v. Tome, 61 F.3d at 1451. Accordingly, the Tenth Circuit has rejected the two-part test that the Fourth and the Eighth Circuits have used to evaluate evidence proffered under rule 803(4), stating: United States v. Joe, 8 F.3d at 1494 n. 5. As the Tenth Circuit explained in United States v. Joe: “[T]he plain language of Rule 803(4) should guide us in determining the admissibility of statements made for purposes of medical diagnosis or treatment.” 8 F.3d at 1494 n. 5. Moreover, because it follows the plain language of rule 803(4), the Tenth Circuit has rejected any presumptions against admission of hearsay evidence under the exception in the case of children. See United States v. Edward J., 224 F.3d 1216, 1219 (10th Cir.2000) (“Edward encourages us to ... establish a presumption that Rule 803(4) does not apply to statements given by young children to their doctors identifying their abusers unless the physician first explains to the child such information is important for their treatment. We decline to do so.”).
The Fourth and Eighth Circuits ... have employed the following two-part test to determine a statement’s admissibility under Rule 803(4): “first, the de-clarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.” Renville, 779 F.2d at 436; Morgan, 846 F.2d at 949 (quoting Renville). This two-part test is not contemplated by the rule and is not necessary to ensure that the rule’s purpose is carried out.
For a hearsay statement to be admissible under rule 803(4), the declarant need not have necessarily made the statement to a physician. As the advisory committee’s note to the rule explains, “[statements to hospital attendants, ambulance drivers, or even members of the family might be included.” Fed.R.Evid. 803(4) advisory committee’s note.
3. Identiñcation of the Assailant in Sexual-Abuse Cases.
A declarant’s statement to a physician that identifies the person responsible for the declarant’s injuries is ordinarily inadmissible under rule 803(4), because the assailant’s identity is usually unnecessary either for accurate diagnosis or effective treatment. See United States v. Joe, 8 F.3d at 1494. The Tenth Circuit held in United States v. Joe, however, that a hearsay statement revealing the identity of a sexual abuser who is a member of the victim’s family or household “is admissible under rule 803(4) where the abuser has *1233such an intimate relationship with the victim that the abuser’s identity becomes ‘reasonably pertinent’ to the victim’s proper treatment.” 8 F.3d at 1495. In so holding, the Tenth Circuit reasoned:
All victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician’s treatment will necessarily differ when the abuser is a member of the victim’s family or household. In the domestic sexual abuse case, for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere.
8 F.3d at 1494-95 (footnote omitted). Although the victim in United States v. Joe was an adult, the Tenth Circuit stated that “the identity of the abuser is reasonably pertinent in virtually every domestic sexual assault case,” including “statements made by a child to a physician which identify the sexual abuser as a member of the family or household.” 8 F.3d at 1494. Thus, when a victim of domestic sexual abuse identifies her assailant to her physician, the physician’s recounting of the identification is admissible under rule 803(4) when it is “reasonably pertinent” to the victim’s treatment or diagnosis. United States v. Joe, 8 F.3d at 1495. See 2 John William Strong, McCormick on Evidence § 277, at 248 (4th ed.1992).
In United States v. Tome, the defendant was convicted in the United States District Court for the District Court of New Mexico of sexual abuse of a child. The Tenth Circuit originally affirmed the admission of testimony from six witnesses relaying the child’s statements as non-hearsay under rule 801(d)(1)(B), see 3 F.3d 342, 344 (10th Cir.1993), and the defendant appealed. The Supreme Court reversed and remanded to the Tenth Circuit, because the statements were not “made before the charged recent fabrication or improper influence or motive.” 513 U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). On remand, the Tenth Circuit “determine[d] whether the challenged evidence could have been admitted under another rule of evidence.” United States v. Tome, 61 F.3d at 1449.
The Tenth Circuit first addressed the testimony of three pediatricians who examined the child. In their trial testimony, the three doctors relayed statements that the child made either before or during the doctors’ physical examinations. The Tenth Circuit held that all of the testimony was admissible under rule 803(4).
1. Testimony of Karen Kuper
Kae Ecklebarger of Child Protection Services referred A.T. to Dr. Karen Ku-per, a board certified pediatrician, for a physical examination. Kuper testified that she examined A.T. on two occasions, in September and October 1990. Prior to the first examination, Kuper interviewed A.T. Kuper testified that the purpose of the interview was “to ascertain exactly what injuries had occurred.” In response to Kuper’s questions, A.T. told Kuper about the sexual abuse, at times pointing to the appropriate areas of dolls to answer Kuper’s questions. A.T. also identified defendant as her abuser. After the interview, Kuper performed a complete physical examination of A.T.
We find it clear that AT.’s statement to Kuper was reasonably pertinent to Kuper’s proper diagnosis and treatment of A.T. The information contained in the statement was important to Kuper’s determination of A.T.’s condition. This *1234statement was therefore admissible under Rule 808(4).
2. Testimony of Laura Reich
A.T. saw Dr. Laura Reich on September 21, 1990, for treatment of a skin rash in the vaginal area that was unrelated to any sexual abuse. At the time of Reich’s examination of A.T., Reich was aware of the allegations of sexual abuse. Reich testified that, prior to conducting the physical examination, she asked A.T. several personal questions. One of these questions was whether “anybody had ever touched her in her private area.” According to Reich’s testimony, A.T. replied “that her father had put his thing in her.” The remainder of Reich’s testimony concerned her findings and conclusions from the physical examination.
Reich testified that the reason she had conducted a preexamination interview with A.T. was “that the child needs to be comfortable with me before I examine her.” Because the adequacy of Reich’s examination in part depended on the child’s comfort with her, we find that A.T.’s statement was reasonably pertinent to Reich’s diagnosis or treatment. It consequently was admissible under Rule 803(4).
3. Testimony of Jean Spiegel
Dr. Jean Spiegel, an assistant professor of pediatrics at the University of New Mexico, testified that she examined A.T. for the purpose of offering a second opinion as to whether the child had been sexually abused. Spiegel had extensive training in the area of child sexual abuse, and teaches other doctors how to examine children to detect molestation. Most of Spiegel’s testimony focused on the technical aspects of her examination of A.T. and her conclusion that A.T. had experienced chronic vaginal penetration.
On redirect examination,- Spiegel testified that A.T. told her where on her body she had been touched during the abuse. Spiegel did not ask, nor did A.T. volunteer, who had touched her. Clearly, AT.’s statement regarding where she had been touched was pertinent to Spie-gel’s diagnosis of A.T. The district court therefore properly admitted the statement under Rule 803(4).
61 F.3d at 1450-51.
The Tenth Circuit also held that the victim’s statements to a caseworker and babysitter were not admissible under rule 803(4). The relevant portions of the Tenth Circuit’s decision on remand involve the testimony of Kae Ecklebarger of Colorado Springs Child Protection Services. Eckle-barger, a caseworker, interviewed A.T. on August 29, 1990. Ecklebarger testified that, during the interview, A.T. gave Eck-lebarger a detailed account of the alleged abuse, at times using anatomically correct dolls to demonstrate what had occurred. See 61 F.3d at 1451. Ecklebarger also testified that A.T. alleged she had told her grandmother and aunt of the abuse. The United States argued that Ecklebarger’s testimony was admissible under either rule 803(4) and then-rule 803(24), the residual exception. See 61 F.3d at 1451-52. The United States argued that A.T.’s statement to Ecklebarger was admissible, because the job of a Child Protection Services caseworker “was equivalent to that of a doctor under Fed.R.Evid. 803(4)” and because A.T. understood that Ecklebarger’s role was to “help kids.” 61 F.3d at 1451. The Tenth Circuit rejected the United States’ proffer, noting:
Ecklebarger neither diagnosed nor treated A.T. She described her role as “the initial short-term investigat[or].” Ecklebarger spoke to A.T. two times, *1235after which “[t]he case was sent on to an ongoing protection worker.” Clearly, Ecklebarger did not treat A.T. in any way.
Nor did Ecklebarger diagnose A.T. Indeed, Ecklebarger referred the child to Dr. Kuper for a medical opinion regarding the allegations of abuse. Moreover, Ecklebarger testified that she interviewed A.T. only to the extent necessary to make a decision whether a protective order was appropriate. Because Ecklebarger did not diagnose or treat A.T., the child’s statement to Eck-lebarger could not have been for the “purpose[ ] of medical diagnosis or treatment,” and thus was not properly admitted under Rule 803(4).
61 F.3d at 1451 (alterations in original).
Ecklebarger testified that she interviewed A.T. only to the extent necessary to make a decision whether a protective order was appropriate. See 61 F.3d at 1451. The Tenth Circuit stated that, because Ecklebarger did not diagnose or treat A.T., the child’s statement to Ecklebarger could not have been for the “purpose[ ] of medical diagnosis or treatment,” and thus was not properly admitted under rule 803(4). 61 F.3d at 1451.
Applying these principles, the Court, in United States v. Chaco, allowed the Plaintiff United States of America to introduce a victim’s statements made during a SANE examination to a treating doctor. See 801 F.Supp.2d at 1210-1213. The Court noted that the purpose of the SANE examination was to assess the victim’s “physical and psychological condition,” and to determine whether the victim was “in a safe environment or remained at risk of further abuse.” 801 F.Supp.2d at 1213. The Court found that the victim’s statements regarding the alleged abuse were relevant to the doctor’s determination of “where signs of abuse may be found and deciding for where to test for sexually transmitted diseases.” 801 F.Supp.2d at 1213. The Court also found that the victim’s statements about who abused her and when she was abused were relevant in determining the identity of the abuser, and whether the victim was in a safe environment. Based on these findings, the Court held that the victim’s statements “about who touched her, where he touched her, and when he touched her were reasonably pertinent to ... [a] proper diagnosis and treatment of [the victim], and are therefore admissible pursuant to rule 803(4).” 801 F.Supp.2d at 1213. Similarly, in United States v. Jim, the Court allowed the United States to introduce statements a victim made to a SANE nurse during the victim’s SANE examination. See 2012 WL 2053683, at *1. The defendant in United States v. Jim did not object to the introduction of the SANE nurse’s statements. See 2012 WL 2053683, at * 1.
ANALYSIS
The Court will deny the SANE MIL and grant the Roll MIL. The Court concludes that Kysar may testify regarding her SANE examination of Doe, the questions Kysar asked Doe and Doe’s responses, that Kysar cannot determine whether Doe’s injuries are indicative of consensual or non-consensual intercourse, and that Doe’s injuries are consistent with her version of events, although the Court will not allow Kysar to identify Harry as Doe’s assailant. The Court determines that Ky-sar’s testimony regarding the SANE examination is relevant to Doe’s injuries and to help the jury understand that Harry’s DNA was found inside Doe’s vagina, and the probative value of such evidence is sufficient to outweigh any prejudicial effect that Kysar’s testimony in this regard will have to Harry. Kysar’s testimony regarding the questions she asked Doe and Doe’s *1236responses fall with rule 803(4)’s exception to hearsay, and, is relevant to the jury’s understanding of the nature of Doe’s injuries. The Court will allow Kysar to testify to Doe’s demeanor during the SANE examination, as Doe’s demeanor is neither hearsay, nor unfairly prejudicial to Harry’s case, as Harry may attack any weight that the jury may give to Doe’s demeanor on cross-examination. Kysar may not assess the value of Doe’s demeanor. Kysar may testify that she cannot conclude whether Doe engaged in consensual sexual intercourse, and that Doe’s injuries are consistent with her version of events, because Kysar’s testimony in this regard has a reliable basis in the science of her discipline, is relevant whether Harry assaulted Doe, and, further, is not unfairly prejudicial, as Kysar admits she cannot discern from her findings whether the sexual intercourse was nonconsensual. Kysar may not identify Harry as the abuser, as this is neither a case of alleged domestic sexual abuse, in which the identity an abuser is relevant to Doe’s diagnosis and treatment, nor has the United States proffered that Kysar has knowledge, whether lay or expert, that Harry abused Doe.
On the other hand, the Court will not allow Dr. Roll to testify. First of all, the Court is not convinced that Dr. Roll’s testimony is relevant to any issue in this case, as Kysar will not assess the weight of Doe’s demeanor after the incident. Additionally, the Court is not convinced that the absence of any scientific evidence linking demeanor to an individuals’ past experiences or the veracity of their statements demonstrates that Dr. Roll’s testimony has a reliable basis in psychology. Rather, Dr. Roll’s testimony appears similar to an untested hypothesis and, therefore, fails the first prong of the Court’s inquiry under Daubert v. Merrell Dow Pharm., Inc., and the Court will, thus, not allow Dr. Roll to testify at trial.
1. THE COURT WILL ALLOW KYSAR TO TESTIFY ON THE UNITED STATES’PROFFERED TOPICS.
The United States intends to introduce testimony from Kysar: (i) regarding her SANE examination of Doe; (ii) regarding the questions she asked Doe and Doe’s responses; (iii) that “she cannot conclude that the injuries and tearing are indicative of non-consensual or consensual intercourse;” and (iv) that Doe’s injuries are consistent with an injury caused by “blunt force trauma, which could have been caused by a penis during attempted penetration of the vagina.” Second SANE Notice ¶ 3, at 2-3, filed March 26, 2013 (Doc. 128). Harry asserts that Kysar’s testimony is not relevant, because identity is not an issue in this case and he does not dispute that Doe received a SANE examination. See SANE MIL at 2-3. Harry further asserts that Kysar’s testimony would be impermissible character evidence and that Kysar is not qualified to testify regarding her opinion. See SANE MIL at 2, 4-5. Harry contends that Kysar’s testimony does not fall within rule 803(4)’s exception to the hearsay prohibition for testimony given to medical providers and that her testimony will be unfairly prejudicial. See SANE MIL at 4-5.
A. THE COURT WILL ALLOW KY-SAR TO TESTIFY REGARDING DOE’S SANE EXAMINATION.
Kysar may testify regarding the SANE examination of Doe, Kysar’s findings from the SANE examination, Ky-sar’s questions to Doe during the examination, and Doe’s responses to Kysar’s questions. First, Kysar, as the administering SANE nurse, has personal knowledge to testify regarding the SANE examination. See Fed.R.Evid. 602 (“A witness may testify to a matter only if evidence is intro*1237duced sufficient to support a finding that the witness has personal knowledge of the matter.”). Second, Kysar’s findings from the SANE examination are relevant to the case. The United States intends for Ky-sar to testify that she obtained swabs from Doe’s genitalia, and will offer further testimony that those swabs reveal that Harry’s DNA was inside Doe after the incident. See Second SANE Notice ¶ 3, at 2. Although Harry asserts that Kysar’s testimony is “unnecessary, irrelevant, entirely unsupported by empirical evidence supporting its reliability,” Roll Response at 2, the Court finds that Kysar’s testimony about the SANE examination is relevant, as her testimony helps the jury understand what Doe experienced the night of the incident, see SANE Response ¶ 1, at 1. Harry initially denied ever touching Doe, but, that Doe sustained injuries allows the United States to refute any possibility that Doe fabricated her story in its entirety. The Court does not believe that any prejudicial effect of Kysar’s testimony regarding the SANE examination would be unfairly prejudicial to Harry, as the probative value of medical evidence linking Harry to Doe’s injuries is high, and the Court does not see how this testimony causes Harry undue prejudice. Cf. United States v. Caraway, 534 F.3d at 1301 (“To be unfairly prejudicial, the evidence must have an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” (internal quotations omitted)).
Additionally, Kysar may testify regarding the questions she asked Doe during the SANE examination, Doe’s' responses to those questions, and Doe’s demeanor during the examination. “[T]he test for admissibility under rule 803(4) is whether the subject matter of the statements is reasonably pertinent to diagnosis or treatment.” United States v. Tome, 61 F.3d at 1451. Kysar’s questions during the SANE examination and Doe’s responses fall within rule 803(4)’s exception to the general prohibition on hearsay evidence. The Court has previously determined that statements made to a medical provider, such as Kysar, a trained SANE nurse, are admissible under rule 803(4), and the Court determines that the proffered testimony from Kysar is, likewise, admissible here. See United States v. Chaco, 801 F.Supp.2d at 1210-1213. In United States v: Chaco, the Court determined that statements made to a doctor during a SANE examination were “reasonably pertinent to diagnosis or treatment, and therefore admissible,” and were relevant to understanding the “nature and scope of the abuse and also pertinent to deciding what treatment and counseling may be necessary.” 801 F.Supp.2d at 1203. The Court notes that the United States has not proffered the specific questions and responses exchanged between Kysar and Doe during the SANE examination. The Court will not preemptively preclude the United States from offering Kysar’s testimony entirely at trial, because, just as the Court determined that statements made during a SANE examination are reasonably pertinent to diagnosis or treatment, the Court can conclude that Kysar’s questions during the SANE examination were pertinent to determine what treatment and counseling Doe may need to recover from the incident. The Tenth Circuit has held an alleged sexual-assault victim’s statements regarding “the sexual abuse,” including those necessary for identifying the nature of the injuries suffered and building rapport between a medical provider and a victim, are admissible under rule 803(4). United States v. Tome, 61 F.3d at 1449-50. On the other hand, this case does not involve allegations of domestic sexual abuse such that whether Doe was in a safe environment would be relevant to her *1238medical diagnosis and treatment, and, therefore, unlike statements regarding the identity of the alleged assailant in United States v. Tome, Kysar may not testify regarding the identity of who had sex with Doe around May 6, 2010. Cf. United States v. Joe, 8 F.3d at 1494 (finding that victim of domestic sexual abuse’s statements to a treating physician “which identify the sexual abuser as a member of the family or household” are relevant to the victim’s medical diagnosis and treatment); United States v. Chaco, 801 F.Supp.2d at 1213 (allowing statements made during a SANE examination, under rule 803(4) from a victim of alleged domestic sexual abuse, regarding the abuser’s identity). Harry is free to object, at trial, if the United States attempts to introduce questions and responses exchanged between Doe and Ky-sar that probe topics beyond those the Tenth Circuit has determined necessary for Doe’s diagnosis, treatment, and possible need for counseling.
The Court will also allow Ky-sar to testify regarding Doe’s demeanor during the SANE examination. First, Doe’s demeanor is not hearsay. Doe’s demeanor is not a “nonverbal act,” subject to the preclusion on hearsay, as it does not appear that Doe’s poor eye contact and tearful nature was intended to make a statemént to Kysar without using words. Fed.R.Evid.' 801(a). See Sexual Assault Exam at 3 (describing Doe’s demeanor as tearful and calm/cooperative, and that she made poor eye contact). Neither has the United States proffered that it will introduce Doe’s demeanor for the truth of any matter that her lack of eye contact or tearful appearance may assert. Moreover, even if the Court construes Doe’s demean- or as a form of hearsay, her demeanor may properly be admitted under rule 803(4). The Tenth Circuit has recognized, in the context of domestic sexual abuse, that “[a]ll victims of domestic sexual abuse suffer emotional and psychological injuries,” and Doe’s demeanor is indicative whether the incident had an emotion or psychological impact upon her. United States v. Joe, 8 F.3d at 1494-95. Therefore, Kysar’s notation of Doe’s demeanor is reasonably pertinent to determining whether, and to what extent, Doe is in need of further treatment and/or counseling. Doe’s demeanor is relevant for the jury to asses her emotional state after the incident, which the jury may use to give more or less weight to Doe’s version of events. See United States v. Jordan, 485 F.3d at 1218 (stating that “a fact is ‘of consequence’ when its existence would provide the fact-finder with a basis for making some inference, or chain of inferences, about an issue that is necessary to a verdict,” but it only need to have “any tendency” to do so). The Court will not allow Kysar to assess any weight that she believes the jury should attach to Doe’s demeanor. Any such testimony would be opinion, not based personal knowledge, and the United States has not proffered that Kysar has specialized knowledge that would allow her to give her opinion regarding the import of Doe’s demeanor during the SANE examination. Additionally, the Court notes that testimony regarding Doe’s demeanor is not unfairly prejudicial to Harry. Harry may attack Doe’s demeanor on cross-examination, if he chooses, and, moreover, the jury is capable of weighing whether and to what extent Doe’s demeanor affects the United States’ case. See United States v. Pettigrew, 468 F.3d at 638 (“[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403].”).
B. KYSAR MAY OFFER HER OPINION REGARDING DOE’S INJURIES.
Harry asserts that Kysar has no “expert opinion or specialized knowledge regard*1239ing” Doe’s injuries, and, therefore, she is not qualified to testify as an expert. SANE MIL at 2. Harry makes this allegation, because Kysar admits that she cannot “differentiate between nonconsensual and consensual injury caused by nonconsensual or consensual sex.” SANE MIL at 2. The United States has notified the Court that the only area in which Kysar may offer expert testimony is regarding Doe’s vaginal injuries, about which Kysar may testify that “she cannot conclude that the injuries and tearing are indicative of non-consensual or consensual intercourse,” but that “the location of the tearing is consistent with the version of events that were provided by Jane Doe,” and that Doe’s injuries “could have been caused by a penis during attempted penetration of the vagina.” Second SANE Notice ¶ 3, at 3. The Court determines that Kysar has specialized knowledge regarding Doe’s injuries that will assist the jury in understanding whether Doe’s version of events is accurate, a fact at issue in this trial. See Fed.R.Evid. 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise....”).
Before admitting expert testimony, the Court must determine whether “the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his discipline’ and, second, whether the proffered testimony “is sufficiently ‘relevant to the task at hand.’ ” Norris v. Baxter Healthcare Corp., 397 F.3d at 883-84 (quoting Daubert v. Merrell Dow Pharm. Inc., 509 U.S. at 597, 589, 113 S.Ct. 2786). The United States has provided the Court with Kysar’s curriculum vitae, which indicates that she is a clinical registered nurse, and has three years of experience providing care in the hospital setting. See Julie Kysar RN Curriculum Vitae at 1, filed March 26, 2013 (Doc. 128-6)(“Kysar CV”). Kysar has served as a SANE nurse from June, 2009, and has completed the SANE Competency Examination. Kysar’s duties as a SANE nurse include assessing patients’ needs and determining whether patients are in need of immediate medical referral or an intervention. The SANE examination includes an examination of patients’ genitalia. See Ky-sar CV at 1. Kysar has an associate’s degree in nursing. See Kysar CV at 2. This information indicates to the Court that Kysar’s testimony regarding Doe’s injuries has a reliable basis in the knowledge and experience of her discipline. Kysar is trained in examining genitalia and determining whether a patient’s injuries require further medical attention. Kysar’s training as a registered nurse likely includes training in certain standards of medical treatment, and the United States may bring forward, at trial, that Kysar applied those standards when examining Doe. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786 (listing the existence of standards and whether the witness applied them in the present case as a factor for the Court to apply when assessing the reliability of an expert’s testimony). It also appears to the Court that Kysar’s training is generally accepted in the medical community, as SANE nurses are commonly found at hospitals, and their examination is often used in sexual assault trials. See, e.g., United States v. Chaco, 801 F.Supp.2d at 1213 (permitting a doctor to testify regarding his sexual assault examination of an alleged victim of sexual abuse); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786 (listing whether the witness’ method is generally accepted as reliable in the relevant medical and scientific community as a *1240factor for the Court to apply when assessing the reliability of an expert’s testimony).
Additionally, Kysar’s testimony that Doe’s injuries are consistent with her version of events is relevant to an issue in this case, as Kysar’s testimony corroborates Doe’s version of events. The credibility of Doe’s account of the incident is at the forefront of the United States’ case. The Court also notes that Kysar’s testimony will not be unfairly prejudicial to Harry; although Kysar’s expert testimony will be damaging to Harry’s case — he will not be able to argue credibly that he had no sex with Doe — Harry must demonstrate a more prejudicial effect for the Court to preclude Kysar’s expert testimony under rule 403. See United States v. Caraway, 534 F.3d at 1301 (stating that evidence is not unfairly prejudicial merely because it damages a party’s case). As Kysar has admitted, she cannot determine, from her findings, whether Harry and Doe engaged in consensual or nonconsensual intercourse. Moreover, the Court will not allow Kysar to discuss the identity of Doe’s alleged abuser. The United States has not proffered that Kysar has expert knowledge allowing her to identify Doe’s alleged abuser, and, moreover, any information that Doe provided to Kysar regarding the identity of her alleged abuser is not relevant to Doe’s medical diagnosis and treatment, because this is not a domestic sexual abuse case wherein whether a victim is returning to a safe environment is part of a physician’s examination. Harry may, therefore, attack any weight that the jury attaches to Kysar’s opinion testimony by pointing out that Kysar’s findings do not preclude the possibility of consensual intercourse. The Court determines, therefore, that Kysar’s testimony regarding Doe’s injuries has a reliable basis in the medical field and is relevant to the task at hand, and, thus, the Court will permit Ky-sar to offer opinion testimony on this limited issue.
II. THE COURT WILL NOT ALLOW DR. ROLL TO TESTIFY.
Harry seeks to introduce testimony from Dr. Roll that evidence of a witness’ demeanor is an unreliable method for determining the veracity and credibility of that witness, and is unreliable for determining whether that witness experienced a sexual assault. See Roll Notice at 1. Harry further intends to use Dr. Roll’s testimony to undermine the value of Kysar’s “subjective observations” of Doe during the SANE examination. Second Roll Notice at 1. The United States contends that Dr. Roll’s testimony is irrelevant, see Roll MIL at 4, and that Dr. Roll’s opinion testimony lacks a reliable basis in the field of psychology, see Apr. 10 Tr. at 69:6-11 (Nayback). The Court agrees with the United States on both stances.
In the Roll Report, Dr. Roll’s first point is that the absence of references to demeanor as a reliable tool of psychological assessment demonstrates a negative, that demeanor is not a reliable tool of psychological assessment. See Roll Report at 1 (citing Melton, Petrila, Poythress, & Slobogin, supra, at 43-68; Holt, supra, at xi, xii-iv). Indeed, Dr. Roll’s main point at the April 10, 2013, hearing was that the absence of evidence that demeanor is reliable is the psychological research that supports his proffered expert opinion. See Apr. 10 Tr. at 57:17-22 (Roll). Melton, Petrila, Poythress and Slobogin do discuss, to some extent, the relevance and usefulness of an individual’s response style during a psychological interview to a forensic assessment of that individual. See Melton, Petrila, Poythress & Slobogin, supra, at 56-62. This discussion is not helpful to Dr. Roll’s hypothesis. Even if the Court *1241were to conclude that a response style— which may include annotation of an individual's honesty, exaggeration of symptoms, and denial of symptoms — included an evaluation of the individual’s demean- or — which the authors do not include as a response style — Melton, Petrila, Poythress and Slobogin’s discussion thereof would indicate that demeanor is a valuable tool for psychological assessment. Indeed, the authors discuss how an examiner may, in certain circumstances, use response style to determine whether an individual is feigning certain psychological symptoms. See Melton, Petrila, Poythress & Slobogin, supra, at 59-62. This discussion signals to the Court that, if the Court extrapolated that demeanor was part of an individual's response style, demeanor would be a helpful tool for psychological assessment, either as indicative of the presence of a psychological condition, or that an individual was feigning a psychological assessment.
That these resources do not list demean- or as a rehable psychological indicator supports a conclusion that Dr. Roll’s testimony is more akin to an untested hypothesis than an opinion based upon reliable scientific methodology. Cf. In re Breast Implant Litig., 11 F.Supp.2d at 1228 (“An untested hypothesis cannot be a scientifically reliable basis for an opinion on causation.”). If the Court were to conclude that the absence of scientific evidence in support of a theory proves that the theory’s converse is true, any number of illogical and irrational expert opinions could be presented to a jury. For example, the absence of scientific evidence that victims exaggerate stories of sexual assault would not be a reliable scientific basis upon which an expert could base his or her opinion that victims of sexual assault never exaggerate their version of events. The absence of psychological research controverting Dr. Roll’s proffered testimony does not allow the Court to permit Dr. Roll to testify that the lack of evidence means that demeanor is not a reliable psychological indicator. Moreover, the sources upon which Dr. Roll bases his theory that the absence of evidence giving demeanor psychological significance proves that demean- or is not of psychological import supports the Court’s decision. The Court will not permit Kysar to asses Doe’s demeanor.
Dr. Roll’s second category of scientific information also fails to support his opinion. Dr. Roll cites to two resources as “[djirect reference to the lack of reliability of behavior observation in assessment of personality.” Roll Report at 1-2. Dr. Roll includes two excerpts from resources describing behavioral and personality assessments. Initially, the Court has trouble weighing the value of one excerpted sentence from presumably a much longer book. Additionally, the first excerpt, from Clinical Personality Approaches, indicates that behavior may play an “even indispensable role” in a psychological report, not that behavior is an unreliable indicator of a psychological factor. Roll Report at 1. That behavioral observations require “greater specificity” in psychological assessment does not signal to the Court that behavior is inherently unreliable; if anything, this phrase indicates that behavior may have value for psychological assessment, albeit a limited value. Roll Report at 1. The Court has similar understanding what weight Dr. Roll attaches to the second excerpt, from The Personality Assessment Report and the Feedback Planning Conference, because, like the first excerpt, this single paragraph is excerpted from a larger report. Moreover, this excerpt does not mention a disassociation between behavior and emotion, behavior and credibility, or behavior and sexual assault. This excerpt falls woefully short of stating *1242that a person’s demeanor is an inherently unreliable psychological indicator.
Last, Dr. Roll points the Court to two resources which support his statement: “There is now consensus within the scientific community that the polygraph as a way of systematically collecting behavioral data is no more useful or reliable than the simple recording of the patients’ obvious demeanor and behavior.” Roll Report at 2 (citing American Psychological Association, The Polygraph in Doubt, APA Monitor 71 (2004); Iacono, supra, at 75-86). Although these resources would support an expert opinion that a polygraph is an unreliable method of determining a witness’ truthfulness, these resources do not prove the testimony which Dr. Roll would provide — that behavior and/or demeanor is unrelated to truthfulness, credibility, or a sexual experience. Indeed, Iacono’s report indicates that physical reaction can be linked to an underlying psychological or emotional sentiment, as one of Iacono’s critiques of the polygraph test is that it does “not provide an adequate control for the emotional impact of simply being presented with the accusatory relevant question.” Iacono, supra, at 76. Thus, Iaco-no’s critique of the polygraph test is premised on the observation that the stress associated with a-particular line of questioning will create a physical response in those taking the polygraph test. This critique indicates that physical and emotional responses are associated. Although Iacono critiques the polygraph test because of its unreliability, largely because a .test taker can curl his or her toes or bite his or her tongue to mess up the test of physical reactions to questions, that a polygraph cannot produce a reliable measure of truthfulness does not prove Dr. Roll’s theory that a physical appearance or response is completely divorced from a person’s underlying emotions or previous sexual experience. Indeed, Iacono seems to suggest, to a little extent, the opposite — that there are physical responses to questions, but they cannot be accurately tested in such a manner that allows examiners to develop uniform conclusions. Similarly, the American Psychological Association’s report, which notes that “[t]here is no unique physiological reaction to deception,” does not prove that a physiological reaction is inherently disconnected from a subject’s emotional or psychological underpinnings. American Psychological Association, supra, at 1. In sum, Dr. Roll’s proffered support for his expert opinion does not demonstrate that his opinion has a reliable basis in the knowledge and experience of psychology. The Court is not required “to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. at 146, 118 S.Ct. 512. The Court, therefore, will exclude Dr. Roll’s testimony.
Regarding the second prong of Daubert v. Merrell Dow Pharm., Inc., the Court is not convinced that Dr. Roll’s testimony is relevant to any “task at hand.” Dauberbt v. Merrell Dow Pharm., Inc., 509 U.S. at 597, 113 S.Ct. 2786. The Court will not permit Kysar to assess Doe’s demeanor during the SANE examination. Dr. Roll’s testimony that Doe’s demeanor is an unreliable indicator whether she was sexually assaulted, or whether her version of the events is accurate, therefore, attacks theories that the United States will not raise at trial. Additionally, to the extent that Dr. Roll’s testimony is relevant to impeach Doe’s statements the Tenth Circuit has ruled that “the credibility of witnesses is generally not an appropriate subject for expert testimony.” United States v. Adams, 271 F.3d at 1244-45. Harry has *1243not, therefore, notified the Court of any basis upon which Dr. Roll’s testimony may be relevant to a task at hand at trial.
After reading Blink, the Court was intrigued with Dr. Roll’s opinion that demeanor had no probative value in determining whether a person is telling the truth, and particularly, whether a person is telling the truth about a sexual assault or whether the person had intercourse but it was consensual. Dr. Roll may be right that Gladwell’s subjects are wrong that they can read the facial features as accurately as Gladwell suggest, but Dr. Roll is at the other end of the spectrum — demeanor has no value. Gladwell’s experts do not upset the norm and turn what is done in courts on its head — a lot of our judicial system is premised on the fact that juries should see witnesses’ demeanor under cross examination. Dr. Roll’s hypothesis, on the other hand, suggests that all that effect the courts make to put everyone in the same room staring at each other is largely irrelevant to the test of determining credibility out of the testimony— what happened. If Dr. Roll is going to offer such testing that runs so much against' the grain of our entire judicial system, he bears the burden of proving that his profession agrees with him. Despite repeated opportunities to prove that his profession agrees with him, he has failed to meet his burden. Instead, he largely says, look, no one says demeanor is reliable, so that shows everyone obviously agrees with him. That resort to a negative is not enough to meet his burden. See Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (“[A]s a practical matter it is never easy to prove a negative.”); United States v. Wilgus, 638 F.3d 1274, 1288-89 (10th Cir.2011) (stating that, “[i]n the abstract,” a negative “can never be proven conclusively; the ingenuity of the human mind, especially if freed from the practical constraints of policy-making and politics, is infinite.”). If Dr. Roll’s point is so obvious, he should write an article and have it peer reviewed. If Gladwell is so terribly wrong, it looks like an article saying so would be of some interest.
If Dr. Roll’s point is more simple — that demeanor is not always a reliable indicator whether someone is telling the truth, especially about sex — then no expert testimony is needed. That knowledge is well within the knowledge of jurors and most people. Men and women, from Presidents to priests, lie about sex. The jury will not be helped by Dr. Roll telling it that sometimes people lie when they cry, and it cannot focus just on crying to determine whether someone is telling the truth. Dr. Roll’s testimony in the end gets too close to somebody saying, as an expert, that the Court should ignore Doe’s crying and lack of eye contact when it decides whether she was/is telling the truth.
In conclusion, the Court determines that Kysar’s testimony regarding the SANE examination of Doe and Kysar’s testimony regarding her questions and Doe’s responses during the examination is relevant to the jury’s determination of what transpired between Harry and .Doe on the night of May 5-6, 2010. Kysar may testify regarding her findings from the SANE examination, because she has personal knowledge of the examination, and the probative value of the examination, as linking Harry to the incident, outweighs any prejudicial effect Kysar’s testimony may have to 'Harry. Additionally, Kysar may testify regarding Doe’s demeanor during the SANE examination, as Doe’s demean- or is not hearsay, and Doe’s demeanor is useful for the jury in assessing Doe’s statements and Doe’s version of events. Kysar may testify that Doe’s injuries are consistent with her version of events, but that Kysar cannot determine whether con*1244sensual or nonconsensual intercourse caused Doe’s injuries, as the Court is satisfied that Kysar has a reliable basis for opining on this limited aspect of Doe’s injuries, and this testimony is helpful for determining whether Harry and Doe engaged in consensual intercourse. The Court will not allow Dr. Roll to testify regarding the import of demeanor for determining whether a victim suffered sexual abuse, or regarding the reliability of Ky-sar’s observations of Doe’s demeanor. Dr. Roll has failed to provide the Court with a scientific resource that supports his proffered expert testimony, and, therefore, the Court determines that his testimony lacks a reliable basis in the field of psychology.
IT IS ORDERED that: (i) the Defendant Myron Harry’s Motion in Limine to Exclude Testimony of Sane Nurse and Supporting Memorandum, filed January 24, 2013 (Doc. 108), is denied; and (ii) the United States’ Motion to Exclude Expert Testimony of Samuel Roll, filed March 26, 2013 (Doc. 129), is granted.
. In its Sealed Memorandum Opinion and Order, filed August 13, 2013 (Doc. 197)(‘‘Sealed MOO”), the Court inquired whether the parties had any proposed redac-tions to protect confidential information within the Sealed MOO before the Court published a public version. See Sealed MOO at 1 n. 1. The parties have not contacted the Court or made any filings within CM/ECF to indicate that they have any proposed redactions. Consequently, the Court is now re-filing the Sealed MOO in an unsealed form.
. The Court's citations to the transcripts of the hearings and trial refer to the court reporter’s original, unedited versions. Any final transcripts may contain slightly different page and/or line numbers.
. In Chapter 1 of Blink, Gladwell discusses the psychologist studies of Dr. John Gottman. Dr. Gottman studies the emotions are displayed on subjects' faces for brief instances of time, and uses those indications of unconscious emotions to determine his subjects’ underlying — and perhaps unexpressed — emotions. See Gladwell, supra, at 18-47.
. Although Dr. Roll's citation in the Roll Report to the Methods in Clinical Psychology cites to the second volume of the work, the pages that Dr. Roll provided to the Court are from the first volume. Compare Roll Report at 1 (providing a citation of: "1 Holt, R.R., Methods in Clinical Psychology. Tables of Contents. Pages xi and xii-xiv in Volume II [sic]”), with Roll Report at 31-33 (excerpts from Methods in Clinical Psychology's table of contents which reads "Contents of Volume 1”).
. Frye v. United States, 293 F. 1013 (D.C.Cir.1923), superseded by rule Fed.R.Evid. 702, held that, for an expert opinion to be admissible, "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” 293 F. at 1014. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218235/ | MEMORANDUM *
David Contreras-Castillo (“Petitioner”) appeals from the district court’s denial of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. We review the district court’s decision de novo. Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir.2002). We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and we affirm.
Petitioner argues that the district court erred in concluding that a previous decision of this court is preclusive on the merits of his arguments. We need not address that issue because we hold that Petitioner was convicted of a crime of violence for which the term of imprisonment was at least one year. Petitioner was convicted of corporal injury to a spouse/cohabitant, in violation of California Penal Code § 273.5(a), an undisputed crime of violence, punishable “by imprisonment in the state prison for two, three, or four years, or in the county jail for not more than one year,” and he was sentenced to 365 days in jail. Therefore, pursuant to 8 U.S.C. § 1101(a)(43)(F), he was convicted of an aggravated felony. United States v. Corona-Sanchez, 291 F.3d 1201, 1210 (9th Cir.2002) (en banc). That Petitioner received credit for serving fifty days of his sentence prior to the sentencing hearing is of no consequence.
This court’s decision in Corona-Sanchez does not help Petitioner. There, we held that an offense otherwise punishable by less than 365 days in jail cannot be raised to the level of an aggravated felony by application of recidivist enhancements. Id. Corona-Sanchez does not, as Petitioner argues, establish that the entire sentencing scheme should be considered in determining whether the conviction qualifies as an aggravated felony. To the contrary, if anything, Coronar-Sanchez supports a conclusion that only the statute of conviction should be considered without reference to other provisions that either enhance or credit the permissible and imposed sentence.
The alleged “facial flaw” in the underlying conviction is a collateral attack on a state court conviction that we cannot entertain here. Contreras v. Schiltgen, 151 F.3d 906, 908 (9th Cir.1998); see also Ortega de Robles v. INS, 58 F.3d 1355, 1358 (9th Cir.1995).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218236/ | MEMORANDUM **
Allegra Green filed this pro se action in state court against (1) an arbitrator; (2) the arbitrator’s law firm; (3) the American Arbitration Association; (4) her former employer; (5) corporate affiliates of her former employer; and (6) the employer’s law firm. Defendants removed the case to federal court and successfully moved for dismissal. On appeal, Green argues that the district court erred by refusing to remand her case to state court and by dismissing the federal action. We affirm.
The district court properly dismissed the non-diverse defendants, the arbitrator and his law firm, because they were fraudulently joined. See United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 761 (9th Cir.2002) (explaining doctrine of fraudulent joinder). Green’s claims against these defendants arising from arbitration fail as a matter of law because they are barred by the doctrine of arbitral immunity. See Wasyl Inc. v. First Boston Corp., 813 F.2d 1579, 1582 (9th Cir.1987) (“arbitrators are immune from civil liability for acts within their jurisdiction arising out of their arbitral functions in contractually agreed upon arbitration hearings”). Green’s claim against the law firm for tortious interference also fails because she did not allege any facts to support such a claim under state law. See Omega Environmental, Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1166 (9th Cir.1997) (listing elements of tortious interference claim). Accordingly, the district court had diversity jurisdiction and did not err by refusing to remand the case to state court. See United Computer Sys., 298 F.3d at 761 (noting that fraudulently joined defendant *159is ignored for purposes of determining diversity jurisdiction).
The district court dismissed the remaining defendants because they were not properly served. Although Green emailed, faxed, and mailed the complaint to defendants before removal, none of these methods satisfies the service requirements under Washington State Superior Court Rules. See Wash. Sup.Ct. Civ. R. 4. After removal, she admits that she failed to serve the defendants pursuant to Fed. R. Civ. Pro. 4. Because these remaining defendants were never properly served, the district court did not err in granting their motion to dismiss.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841942/ | Callahan, J.
The issue in this appeal is whether a criminal defendant’s right to due process is violated when he is resentenced on a lesser included offense after a successful appeal of the greater offense and receives a sentence which, while thirty years less than his original sentence, is the maximum sentence allowed *171for the lesser offense, when he had received only five-sixths of the maximum sentence allowed for the greater offense.
The defendant, Richard T. Carpenter, Jr., was convicted of the crime of murder in violation of General Statutes § 53a-54a and sentenced to a term of imprisonment of fifty years. The maximum prison term for murder is imprisonment for “life,” which is defined to mean “a definite sentence of sixty years.” General Statutes §§ 53a-35a and 53a-35b. After the defendant appealed his conviction to this court, we vacated his murder conviction and remanded the case for resentencing on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). State v. Carpenter, 214 Conn. 77, 87, 570 A.2d 203 (1990). On remand, the trial court sentenced the defendant to a term of imprisonment of twenty years, the maximum allowable sentence for manslaughter in the first degree. General Statutes § 53a-35a. The defendant has appealed, claiming that the maximum sentence of twenty years that he received for manslaughter in the first degree violates principles of due process and double jeopardy.
The defendant was convicted of causing the death of eighteen month old Cassandra Demming, who died from injuries she suffered when the defendant forcefully threw her into a bathtub. The underlying facts surrounding that tragic event are fully set forth in the opinion of this court in State v. Carpenter, supra. As a result of the death of the child, the defendant was charged with murder in violation of § 53a-54a.1 He was *172tried and convicted of murder by a jury and was sentenced to a term of imprisonment of fifty years. Thereafter, the defendant appealed to this court claiming that his conviction was based on insufficient evidence to prove beyond a reasonable doubt that he had intended to cause the child’s death. We reversed the trial court, finding that the evidence concerning the defendant’s intent was insufficient, and remanded the case for sentencing on the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (3).2
At the resentencing hearing, the defendant argued to the trial court that principles of due process limited the maximum allowable sentence that could be imposed. Specifically, the defendant claimed that he was constitutionally protected from receiving a term of imprisonment greater than five-sixths of the twenty year maximum sentence for manslaughter in the first degree, or sixteen and two-thirds years, because the court originally had sentenced him to fifty years imprisonment, only five-sixths of the maximum sentence for murder of sixty years allowed by General Stat*173utes § 53a-35b.3 The trial court was unpersuaded by the defendant’s argument and resentenced him to the maximum term of imprisonment of twenty years.
In this appeal, the defendant, relying on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and its progeny, claims that his resentencing to a twenty year period of incarceration violated principles of due process and double jeopardy.4 He claims that because the sentence he received on remand was greater, in proportion to the maximum sentence statutorily available, than the sentence he originally received for murder, it is a more severe sentence for due process purposes than his original sentence. Further, he claims that because the sentence is more severe, the trial court had a duty to articulate its reasons for the sentence on the record in order to avoid a presumption of unconstitutional vindictiveness under Pearce. Because we conclude that the defendant did not receive a more severe sentence on remand, we find the defendant’s argument unpersuasive.
Due process requires that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives” after prevailing on appeal. North Carolina v. Pearce, *174supra, 725; State v. Sutton, 197 Conn. 485, 499, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986). Therefore, “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear” and be made part of the record. (Emphasis added.) North Carolina v. Pearce, supra, 726; State v. Sutton, supra, 500. Initially then, before undertaking a Pearce analysis, we must determine whether the sentence imposed on remand was, in fact, greater than the sentence originally imposed. If it is not, application of the presumption of vindictiveness is not required. United States v. Vontsteen, 910 F.2d 187, 192, reh. granted, 919 F.2d 957 (5th Cir. 1990); United States v. Bay, 820 F.2d 1511,1513-14 (9th Cir. 1987).
In determining whether the sentence was more severe, “[i]t is the actual effect of the new sentence as a whole on the total amount of punishment lawfully imposed by [the judge] on the defendant . . . which is the relevant inquiry . . . .” United States v. Markus, 603 F.2d 409, 413 (2d Cir. 1979). Further, “[i]n determining whether the second sentence is harsher than the first, we look not at the technical length of the sentence but at its overall impact on [the defendant].” United States v. Williams, 651 F.2d 644, 647 (9th Cir. 1981).
In determining the overall impact of a sentence on defendants, courts have found a wide range of resentencing possibilities to be more severe than the initial sentence. Certainly, a sentence on remand that imposes a longer sentence to serve in terms of actual years than did the original sentence would be considered more severe. North Carolina v. Pearce, supra; United States v. Williams, supra; State v. Sutton, supra. Similarly, courts have determined that a sentence on remand requiring a defendant to remain on parole for a longer period of time; United States v. Albanese, 554 F.2d 543, *175549 (2d Cir. 1977); or to serve consecutive rather than concurrent sentences constitutes a greater punishment than the sentence originally imposed. State v. Macumber, 119 Ariz. 516, 522-23, 582 P.2d 162, cert. denied, 439 U.S. 1006, 99 S. Ct. 621, 58 L. Ed. 2d 683 (1978); Kinney v. State, 458 So. 2d 1191, 1192 (Fla. App. 1984).
In this case, the defendant makes no claim that his sentence was increased in severity in any way remotely similar to the cases previously cited. He claims rather that the sentence he received on remand is more severe than his original sentence because, although his sentence on remand was thirty years less than his original sentence, it was greater in proportion to the maximum sentence statutorily available than was his original sentence.
The defendant, however, has failed to provide any authority, and we have not located any, in support of the validity of his proportionality claim. Nor can we perceive any reason or policy for such a claim. It is clear to us, as it apparently was to the trial court, that certain criminal conduct may fairly be considered as falling somewhat short of the extreme end of the murder spectrum, but be at the most extreme end of the manslaughter spectrum, and deserving of the maximum punishment for that crime. In light of the fact that due process concerns the actual impact of resentencing on a defendant, not percentages, the defendant’s foray into mathematical comparisons is inapposite.
The judgment is affirmed.
In this opinion the other justices concurred.
“[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant com*172mitted the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
“(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
“(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”
General Statutes § 53a-55 (a) (3) provides: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
Defense counsel stated: “In this case your Honor imposed a sentence that was exactly five-sixths of the maximum that was available or permissible. Accordingly, I would submit that the due process clause of the Fourteenth Amendment to the Federal Constitution as well as the provisions from Article One of the Connecticut Constitution effect a maximum permissible in this case of five-sixths of the maximum that is available on the charge of manslaughter, and that has to be sixteen and two-thirds years.” He further stated, “I would submit to the Court that I think that a fair sentence in this case would be certainly no greater than ten years and a legal sentence in this case must be, I submit, no greater than sixteen and two-thirds years.”
Because the defendant has failed to articulate any cognizable double jeopardy claim either in his brief or at oral argument, we limit our review in this case to the due process claim. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841943/ | Glass, J.
In this will construction case, the plaintiff, Anne Barnett Zauner, challenges the judgment of the Superior Court in favor of the defendant, Leonie Sullivan (Walker) Brewer,1 following the granting of the defendant’s motion for summary judgment. Because we conclude that genuine issues of material fact exist as to the intended meaning of a disputed provision of the will of the testatrix, Virginia R. Ward, and as to whether the defendant had committed waste actionable by the plaintiff under General Statutes § 52-5632 and subject to immediate relief in damages, we reverse.
The plaintiff was the wife and is the sole devisee of the testatrix’ now deceased only son, John S. Barnett. The defendant was the wife of the testatrix’ physician and friend, Eddie Brewer. The focus of the present dispute is a will executed by the testatrix in July, 1967, *178which provided in article three for the disposition of a thirty-three acre parcel of property known as “Beaver Dam” (property). The property at that time consisted of a newly constructed house and recently landscaped grounds, as well as a clear and swimmable man-made pond complete with a boat house and dock for recreational purposes. Article three provided: “I devise to my friend, Leonie Sullivan Walker [Brewer], for and during the term of her natural life my residence real estate [the property] in the town of Salisbury, and, at her death, or if she surrenders the premises prior thereto, the remainder interest therein to my son, JOHN S. BARNETT.”
Upon the testatrix’ death in October, 1967, the defendant, in accordance with article three of the testatrix’ will, entered into possession of the property and made her home there. The defendant resided on the property until September, 1988, when she purchased and began to occupy a home elsewhere and leased the property to a third party. To date, a third party remains in possession of the property pursuant to a lease executed by the defendant.
After learning of the defendant’s leasing of the property, the plaintiff commenced this action in the Superior Court alleging that, under article three of the testatrix’ will, such leasing constituted a “surrender” of “the premises” that entitled the plaintiff to immediate possession of and title to the property in fee simple. The plaintiff further alleged that by permitting the buildings and grounds of the property to become out of repair, the defendant had committed “waste” within the meaning of § 52-563 that had greatly diminished the value of the property. In addition to possession and title, the plaintiff sought relief in the form of money damages and “such other and appropriate equitable relief as the court may deem appropriate.”
*179Upon completion of discovery, the defendant moved for summary judgment pursuant to Practice Book § 384 on the grounds that: (1) because the phrase “surrenders the premises” in the testatrix’ will unambiguously meant the “yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder”; Black’s Law Dictionary (5th Ed.); she had not, as a matter of law, effected a “surrender” of “the premises” by leasing the property to a third party; and (2) the plaintiff could not maintain a claim of waste under § 52-563 because she had failed to allege that the defendant’s waste had substantially and permanently damaged the property, and, alternatively, § 52-563 did not authorize relief in the form of damages for waste before the termination of the defendant’s tenancy. After hearing the parties and considering the evidence proffered in support of their respective claims, the court rendered summary judgment in favor of the defendant.3 The plaintiff then appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023.
On appeal, the plaintiff argues that the trial court improperly determined that no genuine issue of material fact existed as to whether: (1) the defendant’s leasing of the property constituted a “surrender” of “the premises” within the intended meaning of that phrase in the testatrix’ will; and (2) the defendant committed waste actionable by the plaintiff and subject to immediate relief in damages under § 52-563. We agree.
*180I
The plaintiff first claims that the trial court improperly determined that no genuine issue of material fact existed as to whether the defendant’s leasing of the property constituted a “surrender” of “the premises” within the intended meaning of article three of the testatrix’ will. According to the plaintiff, the phrase “surrenders the premises” was an ambiguous expression of testamentary intent that required the trial court to consider extrinsic evidence in order to determine whether the testatrix intended that a leasing of the property constitute a surrender of the premises. The defendant counters that the testatrix’ use of the word “surrender” in the will unambiguously evinced her intent that a surrender of the premises mean a “surrender” as defined in the law of estates: “A yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder . . . .” Black’s Law Dictionary (5th Ed.). Consequently, the defendant maintains that, as a matter of law, she did not surrender the premises when she leased the property to a third party. We agree with the plaintiff.
“ ‘Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ’ ” Gurliacci v. Mayer, 218 Conn. 531, 561-62, 590 A.2d 914 (1991). The issue, therefore, is whether the trial court properly determined that the testatrix’ will so unambiguously expressed her intent that the phrase “surrenders the premises” carry the technical meaning accorded the term “surrender” in the law of estates that, as a matter of law, the defend*181ant’s leasing of the property to a third party did not constitute a surrender of the premises.
In construing a will, the “meaning of language used cannot be determined by an arbitrary rule of legal definition, but depends in each case on the peculiar provisions and character of the special will in question, which must to a large extent be its own interpreter.” Wolfe v. Hatheway, 81 Conn. 181, 185, 70 A. 645 (1908). The proper contextual examination of a word carrying a technical legal meaning, for example, may indicate that the testatrix used the word in a nontechnical or otherwise more restricted sense. Id.; see Stanton v. Stanton, 140 Conn. 504, 515, 101 A.2d 789 (1953); see also Canaan National Bank v. Peters, 217 Conn. 330, 336, 586 A.2d 562 (1991). In such instances, the expressed intent of the testatrix must be effectuated by construing the particular word accordingly. Stanton v. Stanton, supra. Moreover, testamentary language “susceptible of different meanings is to be given that meaning which will most nearly effectuate the [testatrix’] intention.” Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67, 112 A. 689 (1921). “This requires the court, at times, to resort to extrinsic facts as an aid in explaining any language whose meaning the [testatrix] has left uncertain.” Ministers Benefit Board v. Meriden Trust Co., 139 Conn. 435, 444, 94 A.2d 917 (1953); see Cornell v. Cornell, 165 Conn. 376, 382, 334 A.2d 888 (1973).
An examination of the word “surrender” in its context in article three of the testatrix’ will discloses that she employed the word as a transitive verb, followed by the object “the premises.” Although the “usual and appropriate meaning” of the word premises in the law of estates denotes an interest or estate, the word “is used in common parlance to signify land, with its appurtenances” and the “buildings thereon.” Black’s Law Dictionary (5th Ed.); see Webster’s Ninth New Collegiate Dictionary. The susceptibility of the word prem*182ises to “a duplicity of meaning”; Cornell v. Cornell, supra, 382; creates an ambiguity as to the precise act that the testatrix intended to amount to a surrender of the premises when she used those words in her will. This ambiguity is further compounded by the susceptibility of the word surrender to a similar duplicity of meaning. Specifically, the technical meaning of the word surrender in the law of estates, “as referring to the transfer of an estate, has been somewhat obscured by its frequent use in an untechnical sense, as referring to the relinquishment or yielding up, not of an estate, but of the physical possession of the premises . . . .” 4 H. Tiffany, Real Property § 960.
In view of these ambiguities, we conclude that the intended meaning of the entire phrase “surrenders the premises” in article three of the testatrix’ will is not discernible from the language of the will alone.4 The issue of the legal effect of the defendant’s act of leasing the property, therefore, cannot be resolved without resort to “extrinsic evidence as an aid in removing the doubt and in finding the [testatrix’] true intention from the language through which [she] expressed [herself].” Hoenig v. Lubetkin, 137 Conn. 516, 519, 79 A.2d 278 (1951).5 The trial court should not have summarily adjudicated that issue.
*183II
The plaintiff next argues that the trial court improperly determined that no genuine issue of material fact existed as to whether the defendant committed waste actionable by the plaintiff and subject to immediate relief in damages under § 52-563.6 The defendant responds with two alternative contentions. First, she contends that the plaintiffs claim of waste was not actionable under § 52-563 because the plaintiff failed to allege or produce evidence demonstrating that the defendant’s waste had caused “permanent and substantial” injury to the property. Second, the defendant contends that § 52-563 authorizes only equitable relief, and not relief in damages, before the termination of her life tenancy. We consider the defendant’s alternative contentions in turn.
A
Section 52-563 provides: “Any person who, having no greater interest in real property than an estate for years, or for life, created by the act of the parties and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the party injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of.” With respect to the defendant’s contention that the plaintiff’s claim of waste was not actionable under § 52-563 in the absence of substantial or permanent injury to the property, the plaintiff directs our attention to the following evidence that she submitted in opposition to the defendant’s motion for summary judgment: building inspector William Conrad’s affidavit asserting that *184the defendant had neglected to make a number of “ordinary repairs” necessary “to preserve the property”; the defendant’s deposition testimony acknowledging her failure to maintain particular areas of the property and certain of the structures thereon and photographs depicting the property in its original condition in approximately 1969 and its comparatively deteriorated condition in approximately 1989. The plaintiff asserts that this evidence raised a genuine and material factual issue as to whether the defendant committed waste by failing to make ordinary repairs to the property, thus entitling her to bring an action against the defendant under § 52-563.
The defendant concedes that the plaintiff’s evidence disclosed that “some ordinary repairs were needed to preserve the property and keep it in a reasonable state of repair.” In addition, the defendant acknowledges that she was “responsible” for making such repairs. See Hooker v. Goodwin, 91 Conn. 463, 471, 99 A. 1059 (1917). The defendant nonetheless contends that the evidence was insufficient to preclude summary judgment because it did not show that her failure to make ordinary repairs had resulted in permanent and substantial injury to the property. Although the defendant does not attempt to ground this contention upon the language of § 52-563, an endorsement of her position would require that we construe the word injured in the statute to require permanent and substantial injury, in the absence of which, as the defendant asserts, a claim of waste does not “rise to the level of an actionable claim” under the statute. Because such a construction of § 52-563 to a large extent would absolve the defendant of her acknowledged duty to make ordinary repairs, we reject it.
A life tenant is bound to keep the land and the structures comprising the estate “ ‘in as good repair as they were when he took them, not excepting ordinary or nat*185ural wear and tear . . . .’” Ferguson v. Rockford, 84 Conn. 202, 205, 79 A. 177 (1911); see 4A G. Thompson, Real Property § 1900, p. 30; 5 R. Powell, Real Property § 640[3], p. 56-23. The obligation to make ordinary repairs is twofold. The tenant not only has the duty to make the ordinary repairs required to remedy a presently existing condition of substantial disrepair that may have injured the property substantially or permanently, but also has the duty to make any ordinary repairs necessary to prevent the property from progressively declining to the point where its deterioration, and the resultant injury to the inheritance, is substantial or permanent.7 See 1 Restatement, Property § 139, comment (c); 5 R. Powell, supra, p. 56-22 (“duty to keep the premises in repair to prevent serious injury to the property”). In discharging the latter duty to make preventive ordinary repairs, for example, “ ‘if a new roof is needed, [the tenant] is bound to put it on; if paint wears off, he is bound to repaint.’ ” Ferguson v. Rochford, supra.8
*186Like a tenant who fails to repair a presently existing condition of substantial disrepair, a tenant who fails to make preventive ordinary repairs “commits waste” of the permissive variety within the meaning of § 52-563. Id., 204-205; see 4 G. Thompson, supra, § 1853, p. 400 (“[p]ermissive waste, as the name implies, consists in the mere neglect or omission to do what will prevent injury”). If, as the defendant urges, a claim of waste were not actionable under the statute until permissive waste produced substantial and permanent injury to the property, a tenant effectively would be relieved of the preventive aspect of the duty to make ordinary repairs because no right of action would exist to enforce that duty. Because it would have been irrational for the legislature to mismatch the scope of a life tenant’s duty to make ordinary repairs and the scope of the right to enforce that duty, thereby rendering the tenant less than fully accountable for inaction that unquestionably constitutes “waste” under § 52-563, we conclude that the legislature intended that such duty and such right be correlative in scope. The party to whom the life tenant owes the duty to make ordinary repairs is therefore actionably “injured” *187within the meaning of § 52-563 if the tenant “commits waste” by failing fully to discharge either aspect of that duty.9 The relief furnished to redress permissive waste proved to have been committed necessarily will reflect the degree of injury to the property occasioned by such waste. See generally Ratner v. Willametz, 9 Conn. App. 565, 580-87, 520 A.2d 621 (1987); D. Dobbs, Remedies §5.1.
Construing the plaintiffs evidence in the light most favorable to her; Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990); we conclude that the plaintiff established a sufficient factual predicate from which it could be determined, as a matter of law, that a genuine and material factual dispute existed as to whether the defendant had committed permissive waste by neglecting to perform preservative acts comprehended within both aspects of her duty to make ordinary repairs. See id., 251. The declarations in the affidavit by Conrad indicated that the defendant had not made preventive ordinary repairs in that the front posts supporting the boat dock were “splitting and must be replaced,” the mortar on a retaining wall had “cracked” and the wall had “moved,” and “the wall coverings throughout the house [had] begun to come off the walls.” With respect to the defendant’s failure *188to remedy presently existing conditions of substantial disrepair, Conrad asserted that “the support for the boat house [had] been seriously damaged and it appeared to be sinking at one corner,” and further, “the pond . . . [had] grown in on all sides and is essentially unusable.”
The defendant similarly acknowledged in her deposition testimony that she had ceased efforts to control the vegetation that had begun growing in the swimming area when it “got the better of [her],” and that while the island in the center of the pond had experienced “tremendous growth” during her tenancy, she had taken no action to control that growth since 1983. Notwithstanding the affidavit submitted by the defendant wherein real estate broker and appraiser Robinson Leach, Jr., contrarily alleged that his inspection of the property revealed “nothing other than ‘normal wear and tear/ ” this evidence can hardly be characterized as excluding “any real doubt as to the existence of any genuine issue of material fact” concerning the defendant’s commission of permissive waste. Batick v. Seymour, 186 Conn. 632, 637, 443 A.2d 471 (1982). The court, therefore, should not have rendered summary judgment for the defendant on the plaintiff’s claim that the defendant had committed permissive waste under § 52-563.
B
With respect to the defendant’s alternative contention that § 52-563 authorizes only equitable relief and not relief in money damages for waste before the termination of her life tenancy, we initially note that even if we were to agree with her, we nevertheless would conclude that summary judgment on the plaintiff’s claim of waste was improper. The plaintiff’s prayer for relief not only included a request for money damages, but also a request for “such other and appropriate equi*189table relief as the court may deem appropriate.” Because § 52-563, as the defendant concedes, clearly authorizes immediate equitable relief for the commission of permissive waste; see Brainerd v. Arnold, 27 Conn. 617, 625-26 (1858); summary judgment should not have been rendered on the ground that no relief presently was available to the plaintiff even if she were to have proved her claim of waste. We nonetheless address the issue of whether § 52-563 authorizes relief in the form of damages before the termination of a life tenancy because it is likely to arise on remand.
In support of her claim that a life tenant is not “liable” under § 52-563 to pay damages for waste before the termination of the tenancy, the defendant principally relies upon an American Law Reports annotation reporting a number of cases from other jurisdictions so limiting a contingent remainderman’s right to collect damages for waste. See annot., 56 A.L.R.3d 677, 681. The jurisdictions noted in the annotation relieve a life tenant from legal liability to a contingent remainderman on various grounds, each tied to the uncertainty that the future interest ever will become possessory.10 In order to prevent a contingent remainderman’s collection of damages “ ‘for that which may not be his’ ”; Sermon v. Sullivan, 640 S.W.2d 486, 487 (Mo. App. 1982); such jurisdictions limit contingent remaindermen to equitable remedies “ ‘to prevent the destruction of that which may become his.’ ” Id., 487-88; see Strickland v. Jackson, 261 N.C. 360, 361, *190134 S.E.2d 661 (1964); see also 2 Restatement, Property § 188, comment (a); but see L. Simes & A. Smith, Law of Future Interests § 1652.
The comparative certainty of possession attendant to ownership of an indefeasibly vested future interest in fee simple absolute, the type of interest owned by the plaintiff,11 entitles the owner thereof to the maximum protection available both in equity and at law. See 2 Restatement, Property § 187, comment (a); see also 5 R. Powell, supra, § 642[1], p. 56-31. It has been said that such an owner “may secure compensatory damages for injuries sustained. ... He may enjoin threatened acts of waste, or secure a mandatory injunction to compel the performance of a duty by the life tenant with respect to the care of the premises.” L. Simes & A. Smith, supra, § 1654 (c); see C. Smith & R. Boyer, Survey of Property c. XIII, p. 238. Accordingly, in Hamden v. Rice, 24 Conn. 350, 357 (1856), this court held that, under General Statutes (1854 Rev.) § 284, the first statute authorizing the action now provided for under § 52-563, a life tenant was liable in damages to an indefeasibly vested reversioner before the termination of the tenancy “to the extent of the injury” to the inheritance occasioned by an act of voluntary waste. Cf. Ratner v. Willametz, supra.
While we have not previously considered whether a life tenant likewise is “liable” under § 52-563 to pay damages for any injury to the inheritance caused by permissive waste, we see no principled reason why the immediacy of an indefeasibly vested future interest owner’s remedy in damages should turn upon the variety of waste committed by the tenant. The variety of *191waste committed does not diminish the certainty of such an owner’s future possession of the wasted property, nor does the inaction that constitutes permissive waste necessarily produce less damage to the inheritance than an act of voluntary waste, which, under Hamden v. Rice, supra, gives rise to an immediate right of action for damages under § 52-563 irrespective of whether the life tenant remains in possession. Furthermore, the possibility that the tenant may choose to repair the damage caused by permissive waste before the termination of the tenancy does not, as the defendant claims, justify the suspension of such an owner’s ability to obtain relief in damages under § 52-563 until such termination. Voluntary waste does not consist solely of acts irrevocably destructive, but includes acts subject to reparation at the tenant’s election such as the unjustified removal of “anything which has been fixed, or in any manner fastened, to the house,” such as “doors, floors, or wainscot.” 2 Z. Swift, Digest of the Laws of the State of Connecticut p. 517; see C. Smith & R. Boyer, supra, pp. 238-39. Because the prospect of possible restoration does not prevent an indefeasibly vested future interest owner from obtaining immediate relief in damages “to the extent of the injury” to the inheritance caused by an act of voluntary waste; Hamden v. Rice, supra; that prospect should not bar the owner from obtaining similarly immediate relief for any injury caused by the inaction of permissive waste.
Having discerned no sound basis for distinguishing between the remedies immediately available to the owner of an indefeasibly vested future interest in fee simple abolute insofar as voluntary and permissive waste are concerned, we conclude that the available remedies should be coextensive. A life tenant, therefore, may be “liable” under § 52-563 to pay damages to such an owner for either voluntary or permissive waste before the termination of the tenancy. See *1922 Restatement, Property § 187, comment (b) (“[w]hen the right of the owner of the [indefeasibly vested] future interest is that the owner of the estate for life shall . . . make repairs . . . this right is made effective through compelling by judicial action the specific doing of the act in question, or through giving to the owner of the future interest a judgment for the damages caused to him by the omission to act”). Consequently, the trial court should not have rendered summary judgment in the defendant’s favor on the ground that § 52-563 does not authorize immediate relief in damages even if the plaintiff were to have proved that the defendant had committed permissive waste. Both equitable and legal relief, in the court’s discretion, presently are available to the plaintiff under § 52-563. See generally D. Dobbs, supra.
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion the other justices concurred.
William Powell was also named as a defendant, but the action against him was later withdrawn. We will refer to Leonie Sullivan Brewer as the defendant throughout this opinion.
“[General Statutes] Sec. 52-563. liability for waste by tenant for life or years. Any person who, having no greater interest in real property than an estate for years, or for life, created by the act of the parties and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the party injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of.”
While the court confined its ruling on the defendant’s motion for summary judgment to the plaintiff’s claim that the leasing of the property constituted a “surrender” of “the premises” under article three of the testatrix’ will, we treat the court’s subsequent order denying the plaintiffs timely motion to open the judgment for the purpose of reinstating her claim of waste as an implicit rendering of summary judgment in the defendant’s favor on the latter claim.
The defendant asserts that even if we were to find ambiguity in the phrase “surrenders the premises,” that ambiguity must be resolved in her favor because an established tenet of will construction “forbids the cutting down of an express and positive devise in fee, or bequest absolute in terms, in one clause, to an inferior or lesser estate by another clause, unless the second clause expressing the lesser estate indicates a clear intention that the greater estate shall be cut down to the lesser estate.” Hull v. Hull, 101 Conn. 481, 486, 126 A.2d 699 (1924). Because the defendant herself claims that the testatrix devised a life estate to her, rather than a “fee, or bequest absolute in terms,” the above principle is inapposite to this case.
The record indicates that the plaintiff offered such evidence on the defendant’s motion for summary judgment, namely, that the attorney who drafted the will advised the defendant, upon the testatrix’ death, that it was necessary to occupy the property in order to take advantage of the life estate devised to her.
See footnote 2, supra.
The drafters of the Restatement illustrate the dual aspects of a tenant’s duty “to preserve the land and structures in a reasonable state of repair” as follows: “A, owning Blackacre in fee simple absolute, transfers Blackacre ‘to B for life.’ At the time of the transfer, a house is located on Blackacre. I. B permits the exterior wood of this house to go without repainting until the boards are exposed to weather. The repainting of this exterior woodwork is necessary to prevent a progressive weathering of the structure. Such repainting is within the duty ‘to preserve the land and structures in a reasonable state of repair.’ II. B permits the interior woodwork to go without repainting and the walls to go without repapering for a period of fifteen years. These omissions amount to substantial deterioration of the structure. Repainting and repapering the interior of such house is within the duty ‘to preserve the land and structures in a reasonable state of repair.’ ” 1 Restatement, Property § 139, comment (c), illustration 3.
The defendant argues that Ferguson v. Rockford, 84 Conn. 202, 79 A. 177 (1911), is inapposite to the present case since that case involved a tenant in dower, and because the decision in Ferguson accordingly rested on the statute then setting forth certain of a dower tenant’s obligations regarding permissive waste, including the duty to “maintain and keep in repair the buildings, fences, and lands set out to her for her dower, and in case she, or her assigns, shall neglect so to do, the persons entitled to the land *186at her decease, may complain to the superior court . . . General Statutes (1902 Rev.) § 388. A dower tenancy, however, was one of two species of tenancies formerly created by operation of Connecticut law. See Moore v. Ellsworth, 3 Conn. 483, 487-88 (1821); Wilford v. Rose, 2 Root 20, 21 (1793); see generally 2 Z. Swift, Digest of the Laws of the State of Connecticut pp. 519-20; 5 R. Powell, Real Property § 637. Because General Statutes § 52-563 authorizes an action against a life tenant whose interest is “created by the act of the parties and not by the act of the law,” if the tenant “commits waste upon the premises, beyond what tenants for . . . life created by operation of law may do,” we infer that the obligations of such a tenant respecting permissive waste were intended at the very least to be commensurate with those imposed upon dower tenants by statute or under the common law. Accord Hamden v. Rice, 24 Conn. 350, 356 (1856). Ferguson is therefore apposite authority regarding the obligations of the defendant, whose tenancy was “created by the act of the parties,” namely, the testatrix’ creation of the tenancy in her will. See id., 356-57; see also Lyon v. Robbins, 45 Conn. 513, 526-27 (1878).
Because the plaintiff owns an indefeasibly vested future interest in the property in fee simple absolute; see footnote 10, infra; the defendant owes her a duty to make ordinary repairs. See 2 Restatement, Property § 187 (a) (owner of indefeasibly vested future interest in fee simple absolute possesses “a right correlative to each of the duties of the owner of an estate for life,” including the “duty not to permit deterioration of land or structures”); see also L. Simes & A. Smith, Law of Future Interests § 1654 (“the right of the owner of the future interest to recover from the life tenant for waste is the converse of the duty of the life tenant to refrain from waste. While a life tenant may be under a duty to refrain from waste when a contingent remainderman may have no right of action against him, the owner of an indefeasibly vested reversion or remainder would always have a right where the sole life tenant is under a duty; there being no other owner of a future interest in whom the right could be vested”).
As the drafters of the annotation note, however, many jurisdictions afford contingent remaindermen a legal remedy that reflects the tenuous nature of their interests. The Oregon Supreme Court, for example, has adopted a rule that “if the contingency is fairly certain, and, therefore, the likelihood of damage to the remainderman is high,” the contingent remainderman is “entitled to a determination of the amount of damages and to an impounding of the proceeds . . . .” Pedro v. January, 261 Or. 582, 596-98, 494 P.2d 868 (1972), following Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 24-25, 128 S.W. 581 (1910).
The plaintiff’s interest in the property is an indefeasibly vested future interest in fee simple absolute because, pursuant to the terms of the testatrix’ will, “[i]t is an interest certain to become present at a time not more distant than the end of a single present estate for life.” 2 Restatement, Property § 187, comment (a). | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841944/ | Glass, J.
This case involves a claim of housing discrimination brought by the defendant Nancy Marzan Melendez against the plaintiffs, William S. Miko, Joseph Miko and Edward D. Sullivan, as owners of Olive Garden Apartments, an apartment complex in Bridgeport. Melendez filed a complaint with the named defendant, the commission on human rights and opportunities (CHRO), alleging that she had been denied housing, in violation of General Statutes (Rev. to 1987) § 46a-64a,1 because she had a child. A hearing officer appointed *195by the CHRO upheld Melendez’ claim and awarded her damages. The plaintiffs appealed, and the trial court, Dean, J., sustained the appeal and vacated the monetary award to Melendez. Melendez and the CHRO now appeal from the judgment of the trial court.2 We reverse.
After conducting a formal hearing, the hearing officer found the following facts. In August, 1984, the plaintiffs were the owners of the Olive Garden Apartments. On August 24,1984, Melendez, who had a minor child, telephoned Olive Garden Apartments in Bridgeport to inquire about renting an apartment. She spoke with the manager, Roberto Torres, who informed her that the owners did not rent to families with children. Torres refused to show Melendez an apartment and did not permit her to file an application. Neither the plaintiffs nor Torres inquired about Melendez’ financial qualifications at that time. On September 7, 1984, Melendez filed a complaint with the CHRO. The complaint was referred to CHRO investigator Joan Corno. After several failed attempts to conciliate the matter, Corno certified the complaint to a public hearing.
The hearing officer excluded evidence proffered by the plaintiffs relating to the terms of a proposed settlement agreement and relating to Melendez’ financial circumstances. In a decision dated March 14,1989, and mailed to the parties on March 16, 1989, the hearing officer found that the case had not been settled and held that the evidence of the terms of conciliation was properly excluded. On the basis of the facts found at the hearing, the hearing officer concluded that the plaintiffs had discriminated against Melendez, in violation of § 46a-64a, because she had a child, and awarded her damages.
*196On March 29,1989, the plaintiffs appealed the decision of the hearing officer to the trial court, claiming that the hearing officer: (1) violated the plaintiffs’ right to a fair hearing; and (2) improperly excluded evidence offered by the plaintiffs. On April 26,1989, the CHRO, on behalf of Melendez, filed a petition for rehearing, limited to the issue of the hearing officer’s failure to award interest on the damages. On May 22,1989, the hearing officer denied the CHRO’s request for interest on the damages.
On May 19,1989, the CHRO had moved in the trial court to dismiss the plaintiffs’ appeal, alleging that the trial court lacked subject matter jurisdiction because the appeal was premature. The trial court, Thompson, J., denied the motion to dismiss, noting that the appeal had been filed on April 13, 1989, within forty-five days of the mailing of the hearing officer’s decision on March 16,1989. The court concluded that General Statutes (Rev. to 1987) § 4-183 (b)3 does not “invalidate a properly filed appeal under circumstances where a party other than the plaintiff files a petition for rehearing.” (Emphasis in original.) Thus, the trial court concluded that the plaintiffs’ appeal was from a final decision and was not premature.
On the merits of the plaintiffs’ appeal, the trial court determined that the hearing officer improperly excluded evidence of the proposed terms of conciliation and evidence of Melendez’ financial qualifications. The court further determined that the hearing officer’s evidentiary rulings prevented the plaintiffs from obtaining *197a fair hearing. Finally, the trial court concluded that the matter had been conciliated, and sustained the appeal.
On appeal, the CHRO claims that the trial court: (1) improperly exercised jurisdiction over the appeal; (2) applied the incorrect standard of review to the decision of the CHRO hearing officer; (3) applied the incorrect legal standard to a claim of overt discrimination; and (4) improperly ruled that evidence relating to the terms of the proposed conciliation agreement should have been admitted by the hearing officer.4 The plaintiffs claim on appeal that the hearing officer improperly excluded evidence of Melendez’ financial qualifications to rent.5 6We reverse the judgment of the trial court and remand the case to that court with direction to dismiss the plaintiffs’ appeal and to make and enter a decree enforcing the decision of the hearing officer.
I
The CHRO first claims that the trial court lacked subject matter jurisdiction over the plaintiffs’ appeal from *198the administrative decision, because the CHRO subsequently filed a timely petition for rehearing. The trial court concluded that it had jurisdiction, reasoning that § 4-183 (b) “permits a party aggrieved by an agency’s decision to either file an appeal of that decision or a petition for rehearing within the specified period.” (Emphasis added.) The court concluded that the statute does not “invalidate a properly filed appeal” where a party other than the appellant files a petition for rehearing. We agree with the trial court.
A reviewing court should indulge every presumption in favor of the trial court’s subject matter jurisdiction. See LeConche v. Elligers, 215 Conn. 701, 709-10, 579 A.2d 1 (1990); Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). Where the legislature has granted the Superior Court jurisdiction over timely appeals from final decisions of administrative agencies under § 4-183, a subsequent petition for rehearing, however timely, filed by a different party, does not terminate the court’s jurisdiction.
General Statutes (Rev. to 1989) § 46a-94a states that appeals from the final decision of a hearing officer of the CHRO shall be “in accordance with section 4-183” of the Uniform Administrative Procedure Act (UAPA). General Statutes §§ 4-166 through 4-189. As of the date relevant to agency proceedings on Melendez’ complaint, § 4-183 (b) provided, in pertinent part, that appeals under the UAPA “shall be instituted by filing a petition in superior court . . . within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon.” Contrary to the claim of the CHRO, the timing of the plaintiffs’ appeal complied with the requirements of § 4-183 (b).
*199The CHRO relies heavily on a decision of the Appellate Court construing § 4-183 (b). See Connecticut Natural Gas Corporation v. Department of Public Utility Control, 1 Conn. App. 1, 467 A.2d 679 (1983). In Connecticut Natural Gas Corporation, the plaintiff timely filed for rehearing, then filed a timely appeal to the trial court after the rehearing decision was rendered. Id., 2. The issue before the Appellate Court was whether, under § 4-183 (b), the plaintiffs appeal was timely, where the appeal was filed within forty-five days of the decision on the rehearing petition. Id. The Appellate Court concluded that the appeal was timely, based on both the language and purposes of the statute. Id., 3. The court determined that a central purpose of the UAPA was to prevent piecemeal appeals by requiring exhaustion of administrative remedies and finality of administrative action. Id. Finally, the court noted the benefit of allowing a litigant to assess the need for an appeal in light of the rehearing results. Id.
Where one party complies with the requirements of § 4-183 (b) by filing a timely appeal, judicial economy and fairness dictate allowing that appeal to remain within the court’s jurisdiction. In this case, the plaintiffs’ appeal was timely. In contrast to Connecticut Natural Gas Corporation, the plaintiffs’ appeal was filed first and, therefore, jurisdiction vested in the trial court. The plaintiffs had exhausted their administrative remedies and appealed in accordance with statutory requirements. Where, as in the present case, an issue unrelated to the appeal is raised on rehearing by a party other than the appellant, there is no benefit to allowing the appealing party to assess the rehearing results, and the danger of piecemeal appeals is diminished.
The CHRO does not contend that the original hearing decision was not final, but, rather, that a petition for rehearing has the effect of “suspending the finality of the decision and extending the time for appeal.” *200We do not read § 4-183 (b) to oust, in this way, the trial court of properly obtained jurisdiction. Neither the language nor the purpose of § 4-183 (b) is contravened by finding jurisdiction in the present case. The trial court properly concluded that it had jurisdiction over the plaintiffs’ appeal.
II
The CHRO next claims that the trial court failed to apply the proper standard of review to the decision made by the CHRO. The trial court’s review is governed by the UAPA, which limits the scope of judicial review of administrative agency decisions. See Connecticut Light & Power Co. v. Department of Public Utility Control, 219 Conn. 51, 57-58, 591 A.2d 1231 (1991); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). Under General Statutes (Rev. to 1987) § 4-183 (g),6 the “substantial evidence” rule governs judicial review of administrative factfinding. Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989). In determining whether an administrative finding is supported by “substantial evidence,” the reviewing court must defer to the agency’s assessment of the credibility of witnesses. Id., 217. The determination of issues of fact by the administrative agency should be upheld if the record before the agency affords *201a “ ‘ “ ‘substantial basis of fact from which the fact in issue can be reasonably inferred.’ ” ’ ” Id. Ultimately, “[t]he question is not whether the trial court would have reached the same conclusion but whether the record before the [agency] supports the action taken.” Williams v. Liquor Control Commission, 175 Conn. 409, 414, 399 A.2d 834 (1978).
Relying on Board of Education v. Commission on Human Rights & Opportunities, 176 Conn. 533, 538-39, 409 A.2d 1013 (1979), the trial court properly noted that the findings of the agency should be upheld if supported by “substantial and competent evidence” and that the reviewing court should not “try the case de novo, adjudicate the facts, or substitute its own discretion for that of the [agency].” The court, however, did not adhere to that standard. First, the court considered certain evidence excluded at the administrative hearing and made findings of fact based on the excluded evidence. For example, after ruling that the hearing officer should have admitted evidence of a proposed conciliation agreement, a question properly before the court, the trial court proceeded to review such evidence and make a finding thereon. In its findings, the trial court improperly assessed the credibility of the CHRO investigator’s testimony regarding the proposed conciliation agreement. In addition, the trial court found as an undisputed fact that “[t]he landlord made a decision that Melendez did not qualify financially.” Since the hearing officer excluded evidence of Melendez’ ability to pay rent, the trial judge could only have made such a finding by reviewing evidence not before the administrative agency. Section 4-183 (g) specifically forbids the trial court from substituting its judgment as to the weight of the evidence. We are persuaded that the trial court did not defer to the substantial evidence in the administrative record, but, rather, *202improperly substituted its own judgment for that of the hearing officer on issues of fact.
Ill
The CHRO next claims that the trial court applied the incorrect legal standard for a claim of overt discrimination pursuant to § 46a-64a.7 We agree.
In addressing claims brought under § 46a-64a, we are guided by the cases interpreting federal fair housing laws; 42 U.S.C. §§ 3601 through 3631; despite differences between the state and federal statutes. Zlokower v. Commission on Human Rights & Opportunities, 200 Conn. 261, 264, 510 A.2d 985 (1986). In construing federal fair housing laws, the federal courts have adopted the evidentiary requirements set forth by the United States Supreme Court in federal employment discrimination cases. Id., 265. Therefore, we may look to these employment discrimination cases for the appropriate standard applicable to Melendez’ claim.
The United States Supreme Court has set forth three theories of discrimination, each of which requires a different prima facie case and corresponding burden of proof. These theories are: (1) the disparate treatment theory; see Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); (2) the disparate impact theory; see Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989);8 International *203Brotherhood of Teamsters v. United States, 431 U.S. 324, 357-62, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); and (3) the direct evidence theory. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion).9 The question before us is whether the trial court applied the proper theory to Melendez’ claim. We conclude that the trial court in effect improperly applied the disparate treatment theory when the direct evidence theory was applicable.
The elements of a prima facie case under the disparate treatment theory were first set forth by the United States Supreme Court in McDonnell Douglas Corporation v. Green, supra, in relation to employment discrimination claims. This court has applied the prima facie case established in McDonnell Douglas Corporation to housing discrimination claims brought under § 46a-64a. Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 514 A.2d 749 (1986); Zlokower v. Commission on Human Rights & Opportunities, supra. Under the disparate treatment theory, the plaintiff claiming discrimination in rental housing must prove that: (1) she is a member of the statutorily protected class; (2) she has applied for and was qualified to rent the unit involved; (3) she was rejected by the defendant landlord; and (4) the unit remained available thereafter. Zlokower v. Commission on Human Rights & Opportunities, supra, 266. The *204plaintiff has the initial burden of offering evidence on the above elements adequate to create an inference that the refusal to rent was based on a discriminatory criterion. Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 361. Once a prima facie case has been made out, the burden of production shifts to the defendant. Id., 362. If the defendant articulates a legitimate, nondiscriminatory reason for its action, then the burden shifts back to the plaintiff to prove that the given reason was pretextual. Id., 364. The disparate treatment standard thus leaves the burden of persuasion at all times with the plaintiff. Id., 363.
The United States Supreme Court recognized that the prima facie case set forth in McDonnell Douglas Corporation was not intended to be an “inflexible formulation.” See Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 361, quoting International Brotherhood of Teamsters v. United States, supra, 358. Rather, the requirements of proof must be tailored to the particular facts of each case. McDonnell Douglas Corporation v. Green, supra, 802 n.13. When the plaintiff presents direct evidence of discrimination, the McDonnell Douglas Corporation formulation does not apply; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985); but rather a modified standard, the direct evidence theory, applies. Price Waterhouse v. Hopkins, supra, 250-55.10 This departure from the McDonnell Douglas Corporation test is justified by the court’s interpretation that the shifting burdens of proof required by that case were intended to ensure that the *205“plaintiff [has] his day in court despite the unavailability of direct evidence.” (Emphasis added.) Trans World Airlines, Inc. v. Thurston, supra, quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979).
The case that sets forth the standard to be applied where there is direct evidence of discrimination is Price Waterhouse v. Hopkins, supra. Price Waterhouse was a so-called “mixed motives” case, where the employer made a showing that the plaintiffs interpersonal problems were a legitimate concern despite evidence of discrimination against her based on gender. Id., 252. The court stated that, where the plaintiff had introduced sufficient evidence that prohibited discrimination had played a motivating part in her rejection from promotion, the employer had to establish by a preponderance of the evidence that a legitimate reason would have led to the same decision in the absence of discrimination. Id.11 The critical inquiry is whether the discriminatory motive was a factor in the decision “at the moment it was made.” (Emphasis in original.) Id., 241. An alleged discriminator “may not prevail in a mixed motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.” (Emphasis added.) Id., 252.12 The plaintiff does, however, retain the burden of persuasion on the issue of whether a discriminatory motive played a part in the decision. Id., 246. Once the plaintiff has adduced sufficiently persuasive direct evidence that the *206defendant relied on a discriminatory motive, and the defendant has failed to show by a preponderance of the evidence that a legitimate reason existed at the time of the decision and had motivated that decision, the factfinder may render a judgment for the plaintiff.
We conclude that the applicable legal standard in the present case is the direct evidence theory based upon the uncontroverted evidence of discrimination, namely, the statements that the plaintiffs did not rent to families with children constituted direct evidence of prohibited discrimination.13 Therefore, the plaintiffs were required to show by a preponderance of the evidence that a legitimate reason existing at the time of Melendez’ rejection as a tenant, standing alone, actually led to the decision. The plaintiffs introduced no such evidence.
The trial court improperly applied the disparate treatment standard when it allowed the plaintiffs to rebut Melendez’ direct evidence of discrimination by merely articulating a legitimate reason for rejecting Melendez, where there was no evidence in the record that a legitimate reason had caused the discriminatory action relied upon. The trial court overextended Zlokower v. Commission on Human Rights & Opportunities, supra, in holding that the case required Melendez to . show her qualifications for tenancy as part of her prima *207facie case. The court in Zlokower adopted disparate treatment analysis in requiring a complainant, as part of his initial burden, to introduce evidence that he was ready to accept the legitimate objective requirements of tenancy. Id., 266. In Zlokower, however, the plaintiff landlord introduced evidence at the CHRO hearing that legitimate business terms had been proposed to the complainant at the time of the allegedly discriminatory decision. Id., 265. Thus, Zlokower, on its facts, is distinguishable from this case where the plaintiffs presented no such showing of legitimate business requirements at the time of Melendez’ rejection.
We hold that, when direct evidence of discrimination under § 46a-64a has been introduced by a complainant, the respondent landlord must show by a preponderance of the evidence that a legitimate and sufficient nondiscriminatory reason existed at the time the complainant was rejected as a tenant, and that such reason, standing alone, actually induced the decision. See Price Waterhouse v. Hopkins, supra, 246-47. We find that the trial court applied the incorrect standard. Moreover, we are persuaded that there is substantial evidence in the administrative record to support the hearing officer’s decision that Melendez had made out a prima facie case of discrimination under the applicable direct evidence standard. See id., 251-55.
IV
We turn finally to the two evidentiary questions presented in this appeal. First, we address whether the trial court properly found that the hearing officer should have admitted evidence of the proposed conciliation agreement between Melendez and the plaintiffs. Second, we address whether the trial court properly found that the hearing officer should have admitted evidence of Melendez’ financial qualifications to rent an *208Olive Gardens apartment. We find that the evidence was properly excluded by the hearing officer in both instances.14
Under § 46a-64a, the CHRO is empowered to protect families with minor children from discrimination in rental housing. General Statutes (Rev. to 1987) § 46a-83 (a) provides that, upon finding reasonable cause to believe that a discriminatory practice has been committed, a CHRO investigator “shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.” Thus, once a complaint has been filed with the CHRO and reasonable cause has been found, the CHRO becomes a party to any conciliation efforts between the complainant and the alleged discriminator. The party status of the CHRO is implicit in its authority to reconsider the terms of a conciliation previously found to be “satisfactorily adjusted,” if “justice so requires.” Regs., Conn. State Agencies § 31-125-15.15 Thus, a conciliation agreement under § 46a-64a is not complete unless the CHRO has been a party to it.
In the present case, the evidence excluded by the hearing officer was a purported conciliation agreement *209signed only by Melendez and the plaintiffs. The CHRO investigator testified at the hearing that the complaint had not been successfully conciliated, and that no notice of a satisfactory adjustment had been received by the plaintiffs. Substantial evidence in the record supports the hearing officer’s conclusion that the complaint had not been conciliated in accordance with § 46a-83 (a). After a review of the record, we are persuaded that the hearing officer properly excluded evidence of the proposed conciliation agreement.
The general rule is that evidence of an attempted settlement is not admissible against either party to the settlement negotiations. Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982). This rule reflects the strong public policy of promoting settlement of disputes. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.4 (b). The one exception to this rule is that a statement made during settlement negotiations may come in as an admission of fact, where the statement was intended to state a fact. Id. Where it is not clear whether a statement is an offer of compromise or an admission of fact, however, the statement should be excluded. Simone Corporation v. Connecticut Light & Power Co., supra. In the present case, the plaintiffs do not contend that the conciliation agreement contains any admission of fact. Therefore, under the general rule, evidence of the proposed conciliation agreement was inadmissible.
In addition to the general rule excluding evidence of settlement negotiations, CHRO investigators are prohibited from disclosing what has occurred during conciliation efforts, unless the complaint has been satisfactorily adjusted. General Statutes (Rev. to 1987) § 46a-83 (b); see also Green v. Freedom of Information Commission, 178 Conn. 700, 703, 425 A.2d 122 (1979) (purpose of confidentiality is to encourage settlements).*21016 More importantly, hearing officers appointed by the CHRO are prohibited from receiving in evidence “[a]ny endeavors or negotiations for conciliation.” General Statutes § 46a-84 (e). These statutory dictates are consistent with the general rule, and support our conclusion that the hearing officer properly excluded evidence of the proposed conciliation agreement.
Finally, we consider the plaintiffs’ claim that the hearing officer improperly excluded evidence of Melendez’ financial qualifications to rent an Olive Gardens apartment. In considering this claim, we again review the standards for establishing a prima facie case of overt discrimination. Under the direct evidence standard, set forth in Part III of this opinion, the prospective tenant’s qualifications are irrelevant to a determination of liability unless the landlord had a legitimate motive at the time of the discriminatory act. Price Waterhouse v. Hopkins, supra, 252. Furthermore, the landlord must have communicated at that time any legitimate business requirements of tenancy and given the applicant an opportunity to meet them. Where, as here, no evidence was submitted that a legitimate motive existed or was communicated to the applicant at that time, the applicant’s financial status, ascertained after the discriminatory act, has no relevance and is, therefore, inadmissible with respect to whether the discriminatory act occurred.
Relevant evidence has been defined by this court as follows: “ ‘ “ ‘One fact is relevant to another fact whenevér, according to the common course of events, the *211existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.’ ” ’ ” State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986). Relevant evidence is admissible only to prove facts material to liability; that is, facts directly in issue or probative of matters in issue. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.1.2. Under the direct evidence standard, a prospective tenant’s financial qualifications would only be material if they had motivated the landlord at the time of the alleged discriminatory act. Price Waterhouse v. Hopkins, supra. In the present case, the hearing officer specifically found that no inquiry into Melendez’ financial qualifications was made at the time of the discriminatory act nor was Melendez given the opportunity to apply for an apartment unit. The hearing officer found that the sole basis for Melendez’ rejection as a tenant was discriminatory. Therefore, Melendez’ financial qualifications were not material to that issue, and the hearing officer properly excluded such evidence. The trial court did not defer to the substantial evidence in the record that supported the hearing officer’s decision to exclude evidence of Melendez’ financial qualifications to rent an apartment from the plaintiffs. We conclude that the hearing officer’s decision was supported by substantial evidence and that Melendez had made a prima facie case of discrimination under the applicable direct evidence standard.
We note that the defendants’ pleadings in the trial court include a counterclaim requesting an order enforcing the decision of the hearing officer pursuant to General Statutes (Rev. to 1989) § 46a-94a.17 The trial *212court did not procedurally rule on the counterclaim because it sustained the plaintiffs’ appeal. Although the defendants have not specifically pursued the counterclaim in this appeal, their entitlement to it is implicit in our decision reversing the trial court’s judgment. We therefore direct that the trial court enter an order appropriate to dismissing the appeal and enforcing the decision of the hearing officer as provided in § 46a-94a.
The judgment is reversed, and the case is remanded to the trial court with direction to dismiss the plaintiffs’ appeal and to make and enter a decree enforcing the decision of the hearing officer.
In this opinion the other justices concurred.
General Statutes (Rev. to 1987) § 46a-64a provides in relevant part: “discrimination AGAINST FAMILIES WITH CHILDREN PROHIBITED, (a) In the rental of a dwelling unit, no landlord or landlord’s agent may discriminate against any tenant or potential tenant because such tenant occupies or intends to occupy the dwelling unit with minor children.
“(b) The provisions of subsection (a) of this section shall not apply (1) to the renting of (A) single-family and two-family houses or (B) a dwelling unit in a house containing dwelling units for not more than four families living independently of each other, if the owner of such house resides in one of the dwelling units; or (2) if such rental would violate any local, state or federal law or regulation, or condominium bylaw.”
Melendez also alleged discrimination based on gender and marital status in violation of General Statutes (Rev. to 1987) §§ 46a-58 (a) and 46a-64 (a) (1) and (2). Since these allegations were not the basis of the decisions of the CHRO and of the trial court, we do not address them here.
The appeal was transferred to this court from the Appellate Court pursuant to Practice Book § 4023.
The Uniform Administrative Procedure Act (UAPA), including General Statutes (Rev. to 1987) § 4-183, was significantly revised in 1989 by No. 88-317 of the 1988 Public Acts. All agency proceedings commenced prior to July 1,1989, the effective date of the revisions, are governed by the law in effect when the proceeding was commenced. General Statutes (Rev. to 1987) § 4-185. Since Melendez’ complaint was filed on September 7,1984, the UAPA provisions in effect prior to the 1989 revisions apply.
Melendez claims that the trial court improperly: (1) failed to articulate a standard of review in evaluating the hearing officer’s decision; and (2) reversed the hearing officer’s decision without finding that substantial rights of the plaintiffs had been prejudiced. As these claims are subsumed under the claims of the CHRO, however, they will not be addressed separately. Melendez’ remaining claims are duplicative of the CHRO’s claims and, thus, will not be addressed.
The plaintiffs present this claim for review as an adverse ruling of the CHRO hearing officer which should be considered in the event a new hearing is awarded to the CHRO and Melendez. See Practice Book § 4013 (a) (1) (B). We review this claim despite our finding that no new hearing is required. As alternate grounds for affirmance, the plaintiffs have also claimed that: (1) the CHRO does not have jurisdiction over individual complaints alleging a single act of discrimination; (2) the CHRO lost jurisdiction for failure to follow statutory procedure; (3) the hearing officer improperly granted a Secondino inference in connection with the plaintiffs’ failure to call Roberto Torres as a witness; Secondino v. New England Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); and (4) the hearing officer improperly held that the alleged act of Torres was chargeable to the plaintiffs. These claims were not raised in the trial court and, therefore, this court is not bound to review them. See Practice Book § 4185. We decline to do so.
General Statutes (Rev. to 1987) § 4-183 (g), entitled “Appeal to Superior Court,” provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”
See footnote 1, supra, for the full text of the statute.
The disparate impact theory applies to patterns and practices which are facially neutral but discriminatory as applied, and does not require evidence of subjective intent to discriminate. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-46, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989). The disparate impact theory is not relevant to an individual claim of discrimination based on direct evidence, such as the claim in this case.
The plurality opinion does not specifically refer to a “direct evidence” theory, but, rather, characterizes Price Waterhouse as a “mixed motives” case. Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). Lower federal courts, however, applying the Price Waterhouse analysis, have adopted terms expressly incorporating “direct evidence.” See, e.g., Equal Employment Opportunity Commission v. Alton Packing Corporation, 901 F.2d 920, 925 (11th Cir. 1990) (“direct evidence case”); Dunning v. National Industries, Inc., 720 F. Sup. 924, 929 n.6 (M.D. Ala. 1989) (“direct evidence threshold”). We follow these lower federal courts in using the term, “direct evidence theory,” in the present case.
The court specifically rejected the application of the disparate treatment model set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), to “mixed motives” cases. Price Waterhouse v. Hopkins, 490 U.S. 228, 247, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989).
The Second Circuit Court of Appeals has adopted the Price Waterhouse analysis in cases involving direct evidence of discrimination. See Grant v. Hazelett Strip-Casting Corporation, 880 F.2d 1564, 1568-69 (2d Cir. 1989).
A number of federal district courts have applied the Price Waterhouse reasoning that a legitimate reason that did not motivate the alleged discriminator at the time of the discriminatory act is insufficient to rebut a plaintiffs prima facie case under the direct evidence theory. See, e.g., Jew v. University of Iowa, 749 F. Sup. 946, 960-61 (S.D. Iowa 1990); Townsend v. Washington Metropolitan Area Transit Authority, 746 F. Sup. 178, 186 (D.D.C. 1990).
Direct evidence has been held to include discriminatory statements by decisionmakers related to the decisionmaking process. See Price Waterhouse v. Hopkins, 490 U.S. 228, 255-58, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); Equal Employment Opportunity Commission v. Alton Packing Corporation, 901 F.2d 920, 924 (11th Cir. 1990). Direct evidence has also been held to include a policy discriminatory on its face. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) (airline transfer policy expressly differentiated among employees based on age); see also Price Waterhouse v. Hopkins, supra, 277 (O’Connor, J., concurring) (direct evidence requires a showing that “decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision”).
The trial court held that the plaintiffs did not get a fair hearing as a result of the “erroneous evidentiary rulings” of the CHRO hearing officer, including the exclusion of the proposed conciliation agreement and evidence related thereto. Since we find that such evidence was properly excluded by the CHRO hearing officer, the holding that the plaintiffs did not get a fair hearing must fall. See Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249-51, 470 A.2d 1214 (1984) (exclusion of irrelevant evidence by agency did not violate due process). We note in passing, however, that “[t]he procedures required by the UAPA exceed the minimal procedural safeguards required by the due process clause.” Adamchek v. Board of Education, 174 Conn. 366, 369, 387 A.2d 556 (1978).
See also Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 331-32, 533 A.2d 852 (1987) (complainant and the CHRO treated as separate parties under General Statutes [Rev. to 1987] § 46a-64a where complaint initiating agency proceeding sought relief only for wrongs complainant allegedly suffered).
Satisfactory adjustment occurs when the “investigator succeeds in his endeavors under conference, conciliation and persuasion Regs., Conn. State Agencies § 31-125-15. A hearing occurs only when efforts prescribed by General Statutes (Rev. to 1987) § 46a-83 (a) have failed to eliminate a discriminatory practice. Thus, when a complaint is certified for hearing, as in the present case, it follows that there has been no satisfactory adjustment. General Statutes (Rev. to 1987) § 46a-84 (a).
“[General Statutes (Rev. to 1989)] Sec. 46a-94a. appeal to superior court from order of hearing officer. The commission on human rights and opportunities, any respondent or any complainant aggrieved by a final order of a hearing officer or any complainant aggrieved by the dismissal of his complaint by the commission may appeal therefrom in accordance with section 4-183, except venue for such appeal shall be in the judicial dis*212trict in which the discriminatory practice is alleged to have occurred or in the judicial district in which such person resides or transacts business. The court on appeal shall also have jurisdiction to grant to the commission, respondent or complainant such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree enforcing or modifying and enforcing as so modified or setting aside, in whole or in part, the order sought to be reviewed.” | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841946/ | Shea, J.
We consider today what redress, if any, should be afforded a public official called to defend himself publicly against charges of wrongdoing and incompetence subsequently found by a jury to have been baseless, but some of which we conclude were grounded in probable cause as a matter of law. As a result of this determination, we set aside in part the verdicts of the jury awarding damages to the plaintiff for vexatious suit and for the intentional infliction of emotional distress and we remand the case to the trial court for further proceedings.
The plaintiff, Frank DeLaurentis, former chairman of the New Haven parking authority commission, sued the defendants, the city of New Haven and its then mayor, Biagio DiLieto, after the mayor first instituted and then abandoned removal proceedings against him. His six count complaint raised three claims: an unspecified claim that the trial court interpreted to be a claim under article first, § 10, of the Connecticut constitution, for the “imposition of a stigma by official action” in violation of due process; malicious prosecution; and intentional infliction of emotional distress. Each claim was framed in two counts, one against the mayor, and the other against the city.1 The trial court struck the *228two counts containing the constitutional claim, but the other counts were tried to a jury, which rendered verdicts in favor of DeLaurentis.
In support of the verdicts, the jury could reasonably have found the following facts. DeLaurentis had served on the New Haven parking authority commission since he was first appointed in 1974. He was elected as its chairman in 1975. As did all other members of the commission, DeLaurentis served without pay.
The New Haven parking authority (the authority) is a municipal entity established by statute. 26 Spec. Acts 339, No. 473 (1951). It is not subject to supervision by the mayor, whose sole power over the authority is his general power to appoint and discharge the commissioners, subject to specific charter provisions. Appointments are at the mayor’s discretion, but are made for staggered five year terms. During that five year term, commissioners may be removed only for cause and after a public hearing. New Haven City Charter, art. XXXIV, §§ 220, 221.2 DeLaurentis had been reappointed to *229the authority in 1982 by the defendant, then mayor, Biagio DiLieto (the mayor).
The authority was responsible for the maintenance and operation of the city parking garages and public parking lots. 26 Spec. Acts 339, No. 473, §§ 3, 10 (1951). An entirely separate agency, within the city government, the department of traffic and parking, was in charge of traffic control, enforcement of parking ordinances, and other similar matters. New Haven City Charter, art. XLI, §§ 288, 289. The department of traffic and parking, and the parking authority, have entirely different budgets and sources of income. 26 Spec. Acts 339, No. 473, §§ 4, 9 (1951).
The New Haven city charter and the authority bylaws prescribed that one traffic engineer was to be included on the parking authority commission in addition to the five commissioners. That position was occupied by John Cavallero, who had also served as the authority’s executive director for many years, even before DeLaurentis’ appointment. At the same time Cavallero also held the position of director of the department of traffic and engineering, a salaried position paid from city funds. In addition to Cavallero and DeLaurentis, the parking authority members were Joseph Vegliante, Irvin Zeidenberg, Walter Piurek and Robert Schwartz.
*230In early 1983, the mayor received reports that 430 parking tickets had been found in an elevator shaft. In response, he called police chief William Farrell, who assigned detective John Prokop to investigate possible improprieties at the parking authority. The mayor knew Prokop and subsequently appointed him to the zoning board of appeals. In March, 1983, Prokop filed his report with the chief of police. Farrell forwarded the report to the mayor, who reviewed it carefully.
The report, in the words of the mayor, “reads more like the report of [a] management consultant than a detective.” While much of the report contains criticism of the authority’s record keeping and accountability procedures, it also explicitly states that individual authority employees who had previously been “caught stealing” were suspended only briefly but never fired; that some of these employees were related to other public officials, such as the head of security; that certain individual employees had overcharged for tickets and pocketed the difference; that a “sting” operation conducted between November, 1981, and February, 1983, indicated that more than 1000 tickets were missing from almost every month’s receipts; that in December, 1981, 2189 tickets, or 2.34 percent of the total issued, were missing; and that in some cases employees were recorded as having received workers’ compensation on the same days that they were actually on the job and being paid for working. The report alluded to written memoranda and other evidence that formed the basis for these factual conclusions. The mayor was shocked by what the investigation had found and asked chief Farrell to send the report to the state’s attorney for New Haven county in June, 1983. The mayor neither demanded that Prokop produce his evidence nor took any action to remove any of the officials criticized in the report.
*231The mayor gave a copy of the report to Cavallero, who told the other commissioners that he would conduct his own investigation before the report would be released to the public. When DeLaurentis, under pressure from detective Prokop, asked the mayor what was happening about the report, the mayor told him he was waiting to hear from the state’s attorney. In fact, neither Cavallero, nor the state’s attorney, nor the mayor, ever took any action based upon the Prokop report.
In August, 1983, Cavallero presented a reimbursement request for $1196, the cost of his trip to the Institute of Transportation Engineers association meeting in London. DeLaurentis refused the request, on the ground that the expense was unauthorized and should, if anything, be charged against the city’s, rather than the parking authority’s, budget. When Cavallero presented his request to the other commissioners, DeLaurentis went to the mayor. The mayor told DeLaurentis to send Cavallero to the city’s controller, who would probably refuse to honor the reimbursement request. As a result of DeLaurentis’ opposition to this reimbursement, the “war” between Cavallero and DeLaurentis began in earnest.
The dispute between Cavallero and DeLaurentis ripened into a battle for control of the parking authority. In December, 1983, DeLaurentis proposed a resolution adopted by the authority, that there would be no charges to parking authority funds except for parking authority business. Prior to that date, the authority had no explicit rules and regulations on the subject. Cavallero maintained that as executive director, he had the discretion to determine what constituted parking authority business. DeLaurentis insisted that the commission or the chairman make that determination. According to the bylaws, however, Cavallero was a nonvoting member of the commission. Cavallero asked *232the assistant corporation counsel assigned to the parking authority, Susan Goodshall, to research the validity of the bylaw making him a nonvoting member. She reported that state statutes forbade such a restriction. Cavallero, accordingly, decided that the bylaws should be changed so that he would have a vote on the commission. He was supported by commissioners Schwartz and Zeidenberg, but opposed by commissioners DeLaurentis, Piurek and Vegliante.
About the same time, DeLaurentis, acting on a tip from the authority’s controller, discovered that unauthorized or improper travel and entertainment expenditures were being paid from authority funds. He obtained thirty to forty vouchers for reimbursement from the administrative fund that either lacked the requisite number of signatures, were signed by the same official requesting reimbursement, or were unrelated to parking authority business. Some were vouchers for substantial sums: $1300 for a trip to California and $1500 for a trip to Europe. Almost all were reimbursement requests made by Frank Erff, the general manager who worked under Cavallero, or by Cavallero. All were signed by Cavallero.
In January, 1984, DeLaurentis called the mayor and asked to meet with him to discuss the vouchers. When he arrived, he was referred to Joseph Carbone, the mayor’s administrative aide. Carbone reviewed the vouchers and declared that because they were just for “junkets,” the reimbursements would be appropriate. In February, DeLaurentis returned with more vouchers, and met with the mayor, Carbone, and Vincent Mauro, the town Democratic party chairman and a long-time advisor of the mayor. The mayor brushed DeLaurentis’ concerns aside, saying that because Carbone had already looked at the vouchers, he had no reason to do so. All three demanded that DeLaurentis write a *233letter to the effect that the matter had been resolved, but DeLaurentis refused.
At about the same time, a political associate of the mayor asked DeLaurentis to find a job for the mayor’s brother, Tom DiLieto, who was unemployed. Tom DiLieto was put to work in the parking authority over the objections of Cavallero, who described him as a “troublemaker.” Almost immediately, Tom DiLieto reported to DeLaurentis that friends of Cavallero were parking in the garages where Tom was working, without paying for parking stickers. DeLaurentis reported these charges to the mayor.
In March, 1984, DeLaurentis was called to a meeting with the mayor to establish a method of controlling unauthorized expenditures. When he arrived, he found Cavallero, Carbone, Mauro, and the mayor. They pressed him to retract his accusations of improper expenditures and to accept bylaws drafted by Cavallero that would make Cavallero a voting member of the commission, make his term longer than the terms of the other commissioners, and eliminate the chairman’s and the commission’s power to control expenditures, leaving those matters to the executive director, Cavallero. DeLaurentis refused, while agreeing that the bylaws should be changed to improve revenue control. Four days later, DeLaurentis met again with Carbone and Cavallero, who demanded that he agree to the bylaws. Again, DeLaurentis refused. Finally, on April 19,1984, Carbone renewed the request.
At the commission meeting on April 26, 1984, Cavallero moved for adoption of the proposed bylaws. DeLaurentis objected to these bylaws and reiterated that as he read the charter, Cavallero was not entitled to a vote. When, upon the request of commissioner Schwartz, Goodshall, the assistant corporation counsel, presented her legal opinion that Cavallero was *234entitled to a vote, Vegliante and DeLaurentis accused her of collusion with Schwartz and Cavallero and demanded an outside attorney. The minutes of this meeting, like all minutes of the meetings of commissions, were given to the mayor.
On May 3, 1984, the mayor received a letter from commissioners Schwartz and Zeidenberg, to which were attached three written statements signed by Goodshall, Cavallero and Erff. Each stated that at a meeting on October 27,1983, when candidates for the position of parking authority controller were being considered, DeLaurentis had rejected two of the three candidates presented, saying “No blacks, no women; we need somebody good.” The letter from Schwartz and Zeidenberg contained additional accusations: DeLaurentis had violated the freedom of information laws, had made “reckless and irresponsible charges and accusations” against parking authority staff and others without providing substantiation and over the “warnings” of commissioner Schwartz, and had rejected counsel's advice, called her biased and referred to a meeting with the mayor as a “kangaroo court.”
Carbone called DeLaurentis and gave him the SchwartzZeidenberg letter. He told DeLaurentis that the mayor wanted him to respond before Schwartz went public. DeLaurentis refused, saying only that the letter had been instigated by Cavallero. Two weeks later, on May 16,1984, the mayor personally called DeLaurentis in and asked again for his response. DeLaurentis, indignant, said only: “My attorney answered it.”
The mayor then referred the letters to the city's counsel and asked him to draw up the summons that was subsequently issued to DeLaurentis, which set forth the charges on which the removal proceeding was based. By May 23, news of the proposed charges had been leaked to the media. On May 24, the mayor dis*235closed the charges in a public press release at the Park Plaza hotel. The announcement was covered by a local radio station and was heard by workers in the parking authority offices. Shortly thereafter, DeLaurentis was served with the summons.
The summons, signed by the mayor, contained seven pages of charges, accusing DeLaurentis of being “incompetent” and “unfaithful to the duties of his office,” and summoning him, by authority of the city charter, to appear before the mayor at a public hearing there to “show cause why he should not be removed” from office. It advised DeLaurentis that an arbitrator would be appointed “with power ... to make findings of facts with respect to the statement of charges and recommendations to me as Mayor, as to whether said findings justify or not your removal from said office.” The mayor retained, however, the final authority to “review and accept or dismiss” both findings and recommendations.
The summons then set forth four groups of charges against DeLaurentis. The summons charged DeLaurentis with making racist and sexist statements and applying discriminatory standards in hiring employees of the parking authority; making “reckless and unauthenticated accusations and charges” about authority and city personnel “without confirming the truth of [his] charges, and when confronted with the falsity of said accusations and charges, [having] refused to withdraw [his] allegations”; violating the freedom of information act, General Statutes § 1-18 et seq., by initiating and/or chairing executive sessions for improper purposes or by inviting other city employees to those executive sessions; and having “disrupted the business of the Authority by defying the Mayor’s request that [he] settle disputes and put issues to rest,” specifically, by blocking adoption of the revised bylaws.
*236DeLaurentis retained an attorney, John R. Williams, his attorney in this case, to defend him at the hearing. The mayor attended the opening of the hearing and left shortly thereafter. Counsel for the mayor called Cavallero as the first witness. When the brief direct examination of Cavallero had concluded, Williams began his cross-examination, which continued for six days. At that point the hearing was postponed to accommodate the vacation plans of Williams and the arbitrator. The hearing, set to resume in September, was postponed again because of trial commitments by both counsel.
In the meantime, one of the commission members, Vegliante, resigned. The mayor appointed Clare DiMartino in his place. That appointment shifted the balance of power on the commission in Cavallero’s favor. The new bylaws were passed by a 3—2 vote, and DeLaurentis was subsequently replaced as chairman by commissioner Zeidenberg in November, 1984. The arbitrator resigned in April, 1985, for undetermined reasons. The mayor decided not to resume the hearings, and when DeLaurentis’ term of office expired in September, 1987, the mayor did not renew the appointment.
In May, 1984, before the removal proceeding, the plaintiff, Frank DeLaurentis, was seventy-four years old. He was happily married, a jolly, cheerful man who left his troubles at the office and sang at home. As a successful businessman for over fifty years, he was well respected in the community and served on the boards of charitable and civic organizations.
As a result of the public accusations against him and the hearing that followed, DeLaurentis became a changed man. He felt himself to be dishonored and disgraced. He lost his jolly, cheerful manner. He was unable to sleep. His doctor discovered that he had high blood pressure and prescribed pills that he continued *237to use until the day of trial. He also received attorney Williams’ bill for $10,585 less the $1000 retainer already paid.
In October, 1985, DeLaurentis filed suit in federal court alleging that the mayor, Schwartz, Cavallero and the city had violated 42 U.S.C. § 1983 by conspiring to punish DeLaurentis for asserting his first amendment rights and to deprive him of his position as commissioner and of his good name. On July 1, 1986, that court dismissed his federal claims for failure to state a claim upon which relief might be granted, and declined to exercise pendent jurisdiction over the unspecified state common law claims raised by the facts in the complaint. The court therefore dismissed the pendent claims for lack of federal jurisdiction.
One year after filing his federal complaint, DeLaurentis filed the complaint in this case against the city and the mayor, claiming unspecified violations of the state constitution, malicious prosecution and intentional infliction of emotional distress. The first claim, set forth in two counts, was stricken by the trial court, Hodgson, J. The court refused to strike the other counts, however. It rejected the defendants’ claims of absolute prosecutorial immunity and res judicata based upon the dismissal of the federal action, and it suggested, without deciding, that the mayor’s abandonment of the removal hearings would constitute a “successful termination” of that proceeding, the condition precedent to a malicious prosecution claim. The remaining claims proceeded to trial on September 6, 1989.
After the testimony at trial had concluded, the court, Downey, J., included in its charge to the jury two rulings of law. It instructed the jury that, as a matter of law, initiation of the removal proceeding constituted “litigation” or a “civil action” upon which a malicious *238prosecution action3 could be based. The court also charged that the abandonment of the proceedings satisfied the requirement that the underlying suit have been “terminated favorably” to the malicious prosecution plaintiff. The court gave no charge on either qualified immunity, which the defendants had never raised as a defense, or absolute immunity. The jury returned separate verdicts for the plaintiff as to liability on the vexatious suit and emotional distress claims. In a third verdict on damages, it awarded compensatory damages of $425,000 and punitive damages of $35,000 for both claims combined.
The defendants have appealed and seek a reversal of the judgment, claiming that: (1) the dismissal of DeLaurentis’ § 1983 suit bars this action, which arises out of the same events, under principles of res judicata or collateral estoppel; (2) the doctrine of prosecutorial immunity shields the mayor from liability because his institution of the removal proceeding is analogous to the filing of an information in a criminal proceeding; (3) judgment on the vexatious suit claim must be rendered for the defendants because (a) the removal proceeding, on which it is based, is administrative in nature and thus does not constitute a civil action, (b) the proceeding never terminated in favor of the plaintiff, and (c) the evidence established probable cause for *239instituting the proceeding as a matter of law; and (4) the evidence was insufficient to support the verdict on the claim of intentional infliction of emotional distress. The first issue we must consider is the defendants’ assertion that this suit is barred on the grounds of res judicata or, in the alternative, collateral estoppel.
I
In Virgo v. Lyons, 209 Conn. 497, 551 A.2d 1243 (1988), we held that the close relation between civil rights claims based upon “constitutional” torts and state common law tort actions requires application of the doctrines of res judicata and collateral estoppel in order to prevent relitigation in state courts of matters previously determined in a prior federal civil rights action. Res judicata, of course, bars a party from “reasserting a claim that has already been decided on the merits,” while collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them. Id., 501. The trial court, Hodgson, J., properly concluded that neither doctrine applies to this case.
The District Court had granted the defendants’ motion to dismiss DeLaurentis’ federal action pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure.4 Such a motion is similar to our motion to *240strike; Practice Book § 152; and permits the court to dismiss the complaint for failure “to state a claim upon which relief can be granted.” The court in ruling on a 12 (b) (6) motion is required to accept as true all facts pleaded in the complaint and to construe the complaint liberally. Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977); see 2A J. Moore, Federal Practice (2d Ed.) f 12.07 [2.-5]. By definition, there can be no collateral estoppel “fact preclusion” based upon a successful 12 (b) (6) motion, for no “facts” are either litigated or found.
Secondly, while it is true, as the defendants assert, that “an action for malicious prosecution may support liability under 42 U.S.C. § 1983”; see Conway v. Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984); so that a federal court could reject the § 1983 claim if it concluded that the underlying state law claim had not been pleaded adequately under state law, the federal district court reached no such conclusion when it rejected DeLaurentis’ § 1983 claims. Instead, it concluded that DeLaurentis had not adequately pleaded deprivation of a constitutionally protected interest. Thus, it never reached the legal sufficiency of the state law claims, if any, underlying his § 1983 claims.
The District Court also did not reach the legal sufficiency of the complaint’s independent state law claims. Having already dismissed the federal claim, the court simply declined to exercise pendent jurisdiction over *241the state law claims that remained. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). “When state law claims are pleaded, and dismissed without reaching their substantive merits, if the dismissal is based on a discretionary refusal to decide them, it does not bar a subsequent suit on the same claims, either in the state court or in another suit in the federal court.” IB J. Moore, Federal Practice f 0.409 [1.-2], p. 311.
II
The defendants also claim that the doctrine of prosecutorial immunity is applicable to the mayor’s action in instituting the removal proceeding and thus foreclosed DeLaurentis’ suit. We disagree.
Prosecutorial immunity derives from the immunity attached to judicial proceedings. See Burns v. Reed, 500 U.S. , 111 S. Ct. 1934, 1938, 114 L. Ed. 2d 547 (1991). “The judge on the bench must be free to administer the law under the protection of the law, independently and freely, without fear of consequences. No such independence could exist if he were in daily apprehension of having an action brought against him, and his administration of justice submitted to the opinion of a jury.” W. Prosser & W. Keeton, Torts (5th Ed.) § 114, p. 816. Were he not immune, “ ‘no man but a beggar or a fool would be a judge’ id., n.8, quoting Miller v. Hope, 2 Shaw, Sc. App. Cas. 125 (1824); because in every suit there is a loser eager to avenge his loss, and in every unsuccessful prosecution there is an accused eager to exact a penalty for his ordeal. See Forrester v. White, 484 U.S. 219, 225, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988); Mitchell v. Forsyth, 472 U.S. 511, 521,105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985); Butz v. Economou, 438 U.S. 478, 515, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 348, 20 L. Ed. 646 (1872); Spring v. Con*242stantino, 168 Conn. 563, 565, 362 A.2d 871 (1975); Phelps v. Sill, 1 Day 315, 329 (1804).
The mantle of judicial immunity covers not only judges, but all adjuncts to the judicial process. In particular, prosecutors are immune from tort liability for their conduct as participants in the judicial proceeding. See Burns v. Reed, supra, 1939; Imbler v. Pachtman, 424 U.S. 409, 422-24, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976); Spring v. Constantino, supra, 565; cf. 4 Restatement (Second), Torts § 895D, comment (c) (the immunity extended to public officials such as a prosecuting attorney may not apply to his improper motive). Prosecutorial immunity from suits for malicious prosecution and defamation arose from the similar “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler v. Pachtman, supra, 423. “ ‘The key to the immunity . . . held to be protective to the prosecuting attorney is that the acts, alleged to have been wrongful, were committed by the officer in the performance of an integral part of the judicial process.’ ” Spring v. Constantino, supra, quoting Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir. 1965).
“Absolute immunity, however, is ‘strong medicine . . . .’ ” Forrester v. White, supra, 230, quoting Forrester v. White, 792 F.2d 647, 660 (7th Cir. 1986) (Posner, J., dissenting). Executive officers, and municipal officers generally, do not share the common law absolute immunity except to the extent that they are engaged in a “judicial” function. W. Prosser & W. Keeton, supra, § 132, p. 1059; 4 Restatement (Second), Torts § 895D (2). Otherwise, “official immunity” is limited to “qualified immunity” for performance of discretionary acts, which may be defeated by a showing *243of malice. See, e.g., Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989); cf. Malley v. Briggs, 475 U.S. 335, 340, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). “The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.” Burns v. Reed, supra, 1939; see also Malley v. Briggs, supra; Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
The mayor’s role in summoning DeLaurentis to refute charges that would remove him from office is similar to the role of a prosecutor in summoning an accused to refute charges that would subject him to imprisonment. The differences between these two roles persuade us, however, to reject the mayor’s claim of absolute immunity from tort liability for his actions.
Like a prosecutor, the mayor was the only individual authorized to institute removal proceedings and, in instituting such proceedings, he had a duty to protect the public interest by removing from office an incompetent, corrupt or unfaithful public servant. Like a prosecutor, a mayor might be inhibited in performing this important duty if he feared that his motives would be subjected to scrutiny by an impressionable jury-
Unlike a prosecutor, however, a mayor who institutes the removal proceeding prescribed by the New Haven city charter is also the judge in the case. While the mayor appointed an independent arbitrator to make findings and recommendations, he also, in accordance with the city charter, reserved to himself the ultimate right to reject both findings and recommendations and to decide on his own whether to remove DeLaurentis.5 While many public agencies may wear the “two *244hats” of prosecutor and judge—the National Labor Relations Board and local boards of education being two examples—it is unusual to find the same public official wearing both hats.
In Butz v. Economou, supra, the United States Supreme Court held that agency officials who perform functions analogous to those of a prosecutor are entitled to absolute immunity from suit for their decision to initiate or continue a proceeding. In that case, officials from the Department of Agriculture had initiated a proceeding to revoke or suspend the plaintiffs company’s commodity futures registration. The plaintiff brought a civil rights action framed as a vexatious suit claim coupled with a demand for damages caused by the officials’ press release announcing their action. The facts were quite similar to the facts before us.
In reaching its decision, the United States Supreme Court noted, however, that “federal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process.” Id., 513. Among these is the requirement that *245hearings be “conducted before a trier of fact insulated from political influence.” Id. Thus, the court concluded that facts before it met both requirements for a grant of absolute prosecutorial immunity: (1) the need for immunity for the process as a shield against the crippling effect of unlimited vexatious suit actions; and (2) the presence of safeguards against prosecutorial abuse. Id., 511-12. By contrast, in Malley v. Briggs, supra, the United States Supreme Court rejected a police officer’s claim that he should be absolutely immune from liability for causing the plaintiff to be arrested by giving a false affidavit to the judge who issued the warrant. The court analogized the officer to a complaining witness, rather than a prosecutor, and noted that at common law, complaining witnesses have never been absolutely immune, but have always been held liable for malicious prosecution. Id., 340. Finally, the court noted that “[t]he absence of a . . . well-developed and pervasive mechanism for controlling police misconduct weighs against allowing absolute immunity for the officer.” Id., 343 n.5.
Comparing Bute to the case here illustrates that the existence of other safeguards against the abuse of official power is a necessary prerequisite to absolute prosecutorial immunity. See V. Veeder, “Absolute Immunity in Defamation: Judicial Proceedings,” 9 Colum. L. Rev. 463,470-71 (1909). In Butz, those safeguards were provided by federal administrative law requirements that the ultimate decision be reached by one other than the official instituting the proceeding. In a court proceeding, the process itself is also available as a check on prosecutorial abuses.6 Burns v. Reed, supra, 1936; *246see also Practice Book §§ 747, 755, 887 and 986.7 Moreover, “[t]he organized bar’s development and enforcement of professional standards for prosecutors also lessens the danger that absolute immunity will *247become a shield for prosecutorial misconduct.” Malley v. Briggs, supra, 343 n.5; see also Mitchell v. Forsyth, supra, 520-23. Judges adhere to similar professional standards. Cf. ABA Code of Judicial Conduct. While there are few safeguards against judicial misconduct, judges cannot ordinarily initiate proceedings, making it less likely that a judge can use the judicial process to harass and intimidate others.8
It can be argued that the political process is an adequate safeguard against a mayor’s misconduct. See W. Prosser & W. Keeton, supra, § 132, p. 1059; cf. Barr v. Mateo, 360 U.S. 564, 575-76, 79 S. Ct. 1335, 3 L. Ed. 2d 1434, reh. denied, 361 U.S. 855, 80 S. Ct. 41, 4 L. Ed. 2d 93 (1959). Section 220 of the New Haven city charter requires a public hearing prior to removal of an unclassified municipal official. Presumably, the public hearing requirement was intended to keep the process in the public eye as a way of preventing the arbitrary and politically motivated removal of officers. We have never, however, viewed exposure to political repercussions as such a strong deterrent against the abuse of power as to entitle municipal officers to an absolute immunity from civil liability, rather than a qualified immunity. See Stiebitz v. Mahoney, 144 Conn. 443, 446-47, 134 A.2d 71 (1957); see also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 166, 544 A.2d 1185 (1988); Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982).9
*248We conclude that, although the removal process may resemble a judicial proceeding, it contains insufficient safeguards against abuse to warrant absolute immunity from suit for the mayor, who instituted the process.
Ill
We now consider the defendants’ claim that the trial court should have granted judgment in their favor on the vexatious suit claim, notwithstanding the jury’s verdict in DeLaurentis’ favor.
A
In Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978), we stated: “A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor.” The defendants first argue, therefore, that because the removal proceeding in this case was administrative in nature, constituting neither a “civil action” nor a criminal prosecution, institution of the proceeding cannot give rise to liability. We disagree.
Our opinion in Vandersluis explores the meaning of “probable cause”; it does not delineate the scope of the “prior action” requirement for vexatious suit liability. Most courts now agree with the Restatement-(Second) of Torts, § 680, which permits liability for vexatious “initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other.”10
*249On the facts of this case, we conclude that DeLaurentis was not barred from bringing a vexatious suit action against the mayor simply because it is based upon a proceeding that did not take place in a courtroom. The removal proceedings prescribed by the New Haven city charter might have resulted in depriving DeLaurentis of his position as a parking authority commissioner. Whether or not his interest in retaining that unpaid position is of constitutional magnitude, a claim rejected by the federal district court, it is a “legally protected interest” in the sense that the city charter restricts the mayor’s right to deprive him of it. Compare Sansone v. Clifford, 219 Conn. 217, 230-31, 592 A.2d 931 (1991).
B
The defendants next contend that the mayor’s decision not to revive the removal proceeding after its extended recess did not constitute a “termination . . . *250in the plaintiffs favor”; Vandersluis v. Weil, supra, 356; which, they contend, is required to establish liability for vexatious suit.
Courts have taken three approaches to the “termination” requirement. The first, and most rigid, requires that the action have gone to judgment resulting in a verdict of acquittal, in the criminal context, or no liability, in the civil context.11 The second permits a vexatious suit action even if the underlying action was merely withdrawn so long as the plaintiff can demonstrate that the withdrawal took place under circumstances creating an inference that the plaintiff was innocent, in the criminal context, or not liable, in the civil context.12 The third approach, while nominally adhering to the “favorable termination” requirement, in the sense that any outcome other than a finding of guilt or liability is favorable to the accused party, permits a malicious prosecution or vexatious suit action whenever the underlying proceeding was abandoned or withdrawn without consideration, that is, withdrawn without either a plea bargain or a settlement favoring the party originating the action.13
*251Notwithstanding our recitation of the term “favorable termination” (emphasis added) in Vandersluis and a few other cases; see, e.g., Mozzochi v. Beck, 204 Conn. 490, 495 n.1, 529 A.2d 171 (1987); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 538, 457 A.2d 656 (1983); McHale v. W.B.S. Corporation, 187 Conn. 444, 447, 446 A.2d 815 (1982); Frisbie v. Morris, 75 Conn. 637, 639, 55 A. 9 (1903); we have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration. See Zenik v. O’Brien, 137 Conn. 592, 595, 79 A.2d 769 (1951); See v. Gosselin, 133 Conn. 158, 160, 48 A.2d 560 (1946); Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 499, 16 A. 554 (1888); Wall v. Toomey, 52 Conn. 35, 39 (1884); Brown v. Randall, 36 Conn. 56 (1869); Colli v. Kamins, 39 Conn. Sup. 75, 77, 468 A.2d 295 (1983); 1 Z. Swift, Digest of the Laws of the State of Connecticut p. 497. Instead, we have always viewed the issue of whether the prior outcome was “favorable” to the plaintiff as relevant to the issue of probable cause. Brown v. Randall, supra, 62.
Two concerns underlie the requirement of “successful termination.” The first is the danger of inconsistent judgments if defendants use a vexatious suit or malicious prosecution action as a means of making a collateral attack on the judgment against them or as a counterattack to an ongoing proceeding. Clewley v. Brown Thomson, Inc., 120 Conn. 440, 444, 181 A. 531 (1935); see also Paramount General Hospital Co. v. Jay, *252213 Cal. App. 3d 360, 261 Cal. Rptr. 723 (1989); March v. Cacioppo, 37 Ill. App. 2d 235, 246, 185 N.E.2d 397 (1962); 52 Am. Jur. 2d, Malicious Prosecution § 29. The second is the unspoken distaste for rewarding a convicted felon or otherwise “guilty” party with damages in the event that the party who instituted the proceeding did not at that time have probable cause to do so. See, e.g., Dukes v. New York, 743 F. Sup. 1037 (S.D.N.Y. 1990); Katz v. Morgenthau, 709 F. Sup. 1219, 1232 (S.D.N.Y.), aff'd in part and rev’d in part, 892 F.2d 20 (2d Cir. 1989); Ruff v. Eckerds Drugs, Inc., 265 S.C. 563, 567, 220 S.E.2d 649 (1975). Thus, an underlying conviction is recognized in this state as conclusive proof that there was probable cause for the charges unless it is proven that the conviction was obtained through fraud, duress or other unlawful means. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, supra; McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960).
In the case before us, it is undisputed that the mayor abandoned the termination proceeding without any negotiation with DeLaurentis and never reopened it. Moreover, DeLaurentis was no longer a parking commissioner at the time he filed his revised complaint against the city, having served out his term. He was never found “guilty” of any of the charges against him. We conclude that neither concern underlying the “successful termination” requirement is implicated by permitting DeLaurentis to pursue a vexatious suit action against the defendants.
C
The third requirement for a vexatious suit action is that the defendant’s claims lacked “probable cause.” Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable *253cause in the first instance to a jury as a mixed question of fact and law. Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980); see 3 Restatement (Second), Torts § 681B.
The defendants claim that the trial court should have set aside the jury verdict because the letters received by the mayor on May 3,1984, provided him with probable cause to institute the proceeding as a matter of law. DeLaurentis argues that the trial court’s refusal to do so was proper because the mayor should have undertaken further investigation before instituting the proceedings and that in any event, he actually knew that some of the charges made were not only unfounded, but false.
1
These opposing contentions raise this question: for what must the defendant have lacked probable cause? For filing suit? For asserting a particular cause of action? For alleging particular facts? If a civil plaintiff had probable cause to assert one cause of action but joined to that claim ten others that he knew to be groundless, the victim called upon to defend himself against the ten groundless claims would not suffer less because one good claim was included among them. It is common practice, however, for a plaintiff to allege alternative factual theories when he cannot be sure which version most accurately reflects the events that transpired. Each time a civil plaintiff responds to a request to revise, or amends his complaint after realizing one part of his claim is baseless, must he fear liability for vexatious suit?
“[A]s stated by Lord Mansfield in Reed v. Taylor, 128 Eng. Rep. 472, 4 Taunt. 516 (CP 1812): ‘. . . [I]f a man prefers an indictment containing several charges, whereof for some there is, and for others there is not probable cause,’ this will ‘support a count for prefer*254ring that indictment without probable cause.’ ” Gowin v. Heider, 237 Or. 266, 281, 386 P.2d 1 (1964); see also Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989); Graebe v. Falcetta, 726 F. Sup. 36 (E.D.N.Y. 1989); Singleton v. Perry, 45 Cal. 2d 489, 497, 289 P.2d 794 (1955); Boogher v. Bryant, 86 Mo. 42 (1885); Cuthrell v. Zayre of Virginia, Inc., 214 Va. 427, 428, 201 S.E.2d 779 (1974). We agree with those courts that have applied the same proposition in the civil context. See Paramount General Hospital Co. v. Jay, supra; March v. Cacioppo, supra, 247; Hales v. Raines, 162 Mo. App. 46, 60, 141 S.W. 917 (1911).
In the civil context, what constitutes a separate “charge” for which probable cause is required is not always obvious.14 Two decisions involving underlying criminal prosecutions are, however, enlightening. In Janetka v. Dabe, supra, the plaintiff in a malicious prosecution and civil rights action had been acquitted of resisting arrest but convicted of disorderly conduct. Reversing the trial court’s dismissal of the plaintiff’s malicious prosecution claim, the court noted that he had been “charged with two distinct offenses involving distinct allegations. The disorderly conduct charge involved Janetka’s actions directed at the unidentified hispanic man; the resisting arrest charge involved his actions directed at the officers’ attempts to arrest him. *255The elements of each charge are different; neither charge is a lesser included offense of the other.” Id., 190. In Singleton v. Perry, supra, the court sustained the jury’s verdict finding probable cause for a charge in the criminal complaint that the plaintiff had stolen the complainant’s auto, but awarding damages because there was no probable cause for the accusation that she had stolen his rings, luggage and other personal items that she claimed he had given her.
The charges against DeLaurentis were divided into four groups, each containing factual allegations with respect to different times, occurrences and actions. Each group of allegations presented essentially one uni-' fied assertion, however: (1) making racist statements and advocating discriminatory employment practices; (2) violating the Freedom of Information Act (FOIA) by misusing executive sessions; (3) making reckless, unauthenticated and false accusations against others and refusing to retract them when “confronted with [their] falsity”; and (4) defying the mayor’s request to retract the accusations, settle the parking authority disputes and accept the proposed bylaws. Each group of allegations amounts to a separate “charge” to which DeLaurentis was required to respond.15
2
In its charge to the jury, the trial court instructed the jurors that they could not find for the plaintiff unless they found that the mayor lacked probable cause for all of the charges. In reaching the verdict, therefore, the jury presumably found no probable cause for *256any of the charges. We conclude, as a matter of law, that there was probable cause for the first two charges. We agree, however, that the evidence is adequate to support the jury’s finding that the mayor lacked probable cause for the other two. Because those charges are logically severable, we conclude that the jury was free to impose liability against the mayor for the damages those charges caused DeLaurentis.16
For purposes of a vexatious suit action, “[t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” Wall v. Toomey, 52 Conn. 35, 36 (1884); accord Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). “Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.” Shea v. Berry, 93 Conn. 475, 477, 106 A. 761 (1919). Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. See Albertson v. Raboff, 46 Cal. 2d 375, 382, 295 P.2d 405 (1956); 3 Restatement (Second), Torts § 662, comment (c), § 675, comment (d); cf. Franks v. Delaware, 438 U.S. 154, 98 S. *257Ct. 2674, 57 L. Ed. 2d 667 (1978) (proof that an affiant included a false or reckless statement on a warrant affidavit may void the warrant); compare State v. Hamilton, 214 Conn. 692, 707 n.6, 573 A.2d 1197, vacated on other grounds, U.S. , 111 S. Ct. 334, 112 L. Ed. 2d 299 (1990) (the test for probable cause is objective; an arresting or investigating officer’s good faith is insufficient).
(a)
On May 3, 1984, the mayor received four written statements accusing DeLaurentis of making racist and sexist remarks concerning hiring practices of the parking authority. The Schwartz-Zeidenberg letter contained, in addition to those accusations, most of the allegations included in the other charges against DeLaurentis. After receiving these statements, the mayor’s assistant and then the mayor himself asked DeLaurentis to respond, but he refused. Confronted by such accusations, made by presumably reliable public officials and unanswered by DeLaurentis, the mayor unquestionably had probable cause to institute the removal proceeding unless the evidence indicates that he was aware that the allegations were unfounded.
DeLaurentis urges that the jury could have concluded that the mayor was required to undertake a further investigation when he knew that the accusers were DeLaurentis’ opponents on the parking authority; was aware of the power struggle in which they were involved; had seen the minutes of the meeting in question, which were silent as to the remarks DeLaurentis was accused of making; knew that the meeting had been attended by a newspaper reporter as well as by a confidant of the mayor’s, neither of whom had reported to him that DeLaurentis had made the improper remarks; and must have been aware that the meeting at which DeLaurentis was claimed to have *258made the remarks had taken place in October, 1983, six months earlier than the letters that he received in May, 1984. He points to statements signed by commissioners Vegliante, Piurek and development director John Sawyer to the effect that they had not heard DeLaurentis make the remarks, which were introduced into evidence to prove what the mayor would have heard had he asked others present at the October meeting what DeLaurentis had said.
“If a person who has received information tending to show the commission of a crime fails to make such further inquiry or investigation as an ordinarily prudent man would have made in the same circumstances before instituting a proceeding, such failure renders him liable for proceeding without probable cause. One may not rely without further investigation on representations of another where the information received is such as to put an ordinarily prudent and cautious person on inquiry, or, it has been held, where he has no personal knowledge of the truth of the representations. So, also, there is authority to the effect that to proceed without inquiry would be to act without probable cause where the information is readily obtainable, or where the accused himself points out sources of information that would establish his innocence.” 52 Am. Jur. 2d, Malicious Prosecution § 54; see also Zitkov v. Zaleski, 102 Conn. 439, 446, 128 A. 779 (1925); Flam v. Lee, 116 Iowa 289, 298, 90 N.W. 70 (1902); compare Babb v. Minder, 806 F.2d 749 (7th Cir. 1986), and Jones v. Britt Airways, Inc., 622 F. Sup. 389, 392-93 (N.D. Ill. 1985) (failure to investigate may be evidence of malice sufficient to overcome qualified privilege).
The defendants correctly point out that the mayor did make inquiry: he twice confronted DeLaurentis with the accusations and received no response.17 While *259it is possible that the mayor never believed the accusations regarding the racist and sexist remarks were truthful and retained that belief even after DeLaurentis’ failure to respond, there is no evidence from which such a state of mind can be inferred. The mayor’s denial at trial of any such belief cannot form the basis for such an inference. “ ‘Facts cannot be established by not believing witnesses who deny them.’ ” State v. Poplowski, 104 Conn. 493, 495, 133 A. 671 (1926); see also State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972).18 Given that public officials in these times have a duty to eliminate discriminatory hiring practices, we conclude that when information concerning them is received from presumably reliable sources, there is probable cause to institute a removal proceeding such as the one established by the New Haven city charter.
(b)
DeLaurentis was also charged with repeated violations of the FOIA by either initiating or chairing executive sessions of the parking authority during which prohibited subjects were discussed or at which nonmembers were permitted to be present. The SchwartzZeidenberg letter and the minutes of those sessions provide sufficient evidence to support these accusations. It is significant that DeLaurentis never denied them.
The issue raised, however, is not whether the mayor had reasonable grounds to believe that the facts alleged *260were true, but whether he had cause to believe also that the facts alleged would constitute grounds for DeLaurentis’ discharge. DeLaurentis appears to claim that FOIA violations constituted inadequate grounds to discharge him when others, including the mayor himself, participated in the violations without suffering the same penalty. We agree that it is incongruous to allow one to charge another with the same wrongful act that he also has committed. Probable cause does not, however, require a blameless accuser. It is the rare prosecutor of traffic violations who has never himself committed such an offense. Under these circumstances, the FOIA violations alone may not have been a sufficient basis for removal of DeLaurentis. It was not improper to include them with the other charges, however, because there was probable cause to believe that they had occurred, and they added some weight to the basic claim that DeLaurentis should be removed for incompetence. The decision to remove him might properly have been based on the cumulative import of all of the charges.
(c)
With respect to the charge of making reckless accusations, however, there was sufficient evidence from which the jury could have concluded that the mayor actually knew the accusations were false.
The summons alleges, in pertinent part: “You have made reckless and unauthenticated accusations and charges about Parking Authority employees, other Authority members, and officers of the City, without confirming the truth of your charges, and when confronted with the falsity of said accusations and charges, have refused to withdraw your allegations.” It then recites particular charges made by DeLaurentis as being “untrue.” Noteworthy is the allegation that “[y]ou have stated that ‘the Temple Street Garage cashiers were stealing’ and that the Executive Director should ‘fire them all,’ which charge is untrue. When *261reminded that recent investigations of Authority practices found no substantial improprieties which had not previously been addressed by the Authority, you have failed to withdraw your charges and, in fact, have continued to make vague and unsubstantiated charges regarding employee dishonesty.” Other assertions made by DeLaurentis are characterized as “untrue,” “false,” “unsubstantiated” or contradicted by “an independent investigation by the New Haven Police Department which found no substantial improprieties which had not previously been addressed by Authority management.”
The jury could reasonably have found, however, that prior to issuing this charge, the mayor had seen both the Prokop report and the vouchers DeLaurentis had uncovered. Both tended to substantiate DeLaurentis’ accusations. Indeed, the mayor himself admitted that the Prokop report contained findings that suggested a pattern of stealing by parking authority employees. The mayor’s refusal to review the vouchers DeLaurentis offered as evidence amounts to the sort of “wilful blindness” that exceeds a simple failure to investigate. The jury could also have concluded that the mayor knew that his own brother had witnessed misuse of parking lot stickers by friends of Cavallero. This evidence was sufficient for the jury to conclude that a reasonable person would not have had probable cause to charge DeLaurentis with making false and unsubstantiated accusations.
<d)
Finally, DeLaurentis was accused of defying the mayor and blocking adoption of the proposed bylaws. DeLaurentis conceded that he defied the mayor’s order that he withdraw his accusations, accept the bylaws, and make peace with the other commissioners. As a matter of law, however, his actions in this respect could not have been grounds for his discharge because, as *262the mayor admitted, the parking authority is a separate entity not subject to the mayor’s control. Knowing this, as the mayor admittedly did, the mayor could not reasonably have believed that DeLaurentis’ defiance was a lawful basis for discharging him as “incompetent” or being “unfaithful to the duties of his office.”
We conclude that there was sufficient evidence from which the jury could find that the charges involving reckless accusations and defiance of the mayor lacked probable cause, but insufficient evidence from which the jury could find that the charges concerning discriminatory remarks and FOIA violations lacked probable cause. We believe that these charges are logically severable and that DeLaurentis established the city's and the mayor’s liability for the injury suffered by being summoned to defend himself against those charges for which probable cause was lacking.19
IV
The defendants next challenge the trial court’s refusal to direct a verdict, or to set aside the jury’s ver*263diet, on the plaintiffs intentional infliction of emotional distress claim. Specifically, the defendants argue that the mayor’s conduct did not constitute “extreme and outrageous” conduct as a matter of law. While we agree that the jury’s verdict on that claim must be set aside, we do so for a reason that is different from those offered by the defendants. We conclude that statements contained in the summons and statement of charges are absolutely privileged at common law and that no cause of action for intentional infliction of emotional distress based on those statements can lie.20
A
The summons and statement of charges with which DeLaurentis was served are analogous to a summons and complaint in a civil suit or an information in a criminal case.21 The common law protects allegations in a complaint with an “absolute privilege.”22 See Brisco v. LaHue, 460 U.S. 325, 330-31, 334-35, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983); Petyan v. Ellis, 200 Conn. 243, 245-47, 250, 510 A.2d 1337 (1986); Blakeslee & Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894); 2 F. Harper, F. James & O. Gray, Torts (2d Ed.) § 5.22, pp. 189-90; W. Prosser & W. Keeton, Torts (5th Ed.) § 114 (1), p. 817; V. Veeder, “Absolute Immunity in Defamation: Judicial Proceedings,” 9 Colum. L. Rev. 463, 477-79 (1909); but see Mauney v. Millar, 142 Ark. 500, 502-503, 219 S.W. 1032 (1920); Barnett v. Loud, 226 Mass. 447, 115 N.E. 767 (1917) (absolute privilege does not extend to statements irrelevant to the sub*264ject of the suit). Thus, whether or not a party is liable for “vexatious suit” in bringing an unfounded and malicious action, he is not liable for the words used in the pleadings and documents used to prosecute the suit.
The common law privilege for statements is similar to the absolute immunity afforded to participants in a judicial proceeding. Witnesses and parties to judicial proceedings must be permitted to speak freely, without subjecting their statements and intentions to later scrutiny by an indignant jury, if the judicial process is to function. Petyan v. Ellis, supra, 246. While no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness’ statements.23 Parties or their counsel who behave outrageously are subject to punishment for contempt of the court. Parties and their counsel who abuse the process by bringing unfounded actions for personal motives are subject to civil liability for vexatious suit or abuse of process. See Mozzochi v. Beck, 204 Conn. 490, 494-95, 529 A.2d 171 (1987); see also Albertson v. Raboff, 46 Cal. 2d 375, 382, 295 P.2d 405 (1956) (distinguishing libel actions and vexatious suit actions based upon allegations in a complaint). Their statements in pleadings or in court, however, cannot independently be made the basis for an action in libel; Mozzochi v. Beck, supra, 494-95; or, we now hold, intentional infliction of emotional distress.
Because the summons and statement of charges in this case was the functional equivalent of a civil com*265plaint or pleading, we conclude that the particular statements contained within it are absolutely privileged and cannot, in and of themselves, support an action for intentional infliction of emotional distress any more than they could have supported an action for libel.24 Cf. Hogen v. Valley Hospital, 147 Cal. App. 3d 119, 195 Cal. Rptr. 5 (1983); Rainier’s Dairies v. Raritan Valley Farms, Inc., 19 N. J. 552, 563, 117 A.2d 889 (1955). As discussed in Part III of this opinion, an appropriate safeguard is available in the form of a vexatious suit action for unfounded charges.
DeLaurentis also claims that the mayor’s conduct in “publicizing his false accusations” by way of a press conference and news broadcast was “particularly painful and humiliating to Mr. DeLaurentis.” DeLaurentis has produced no evidence, however, that the mayor made any public statements about him other than his public reading of the charges, which was broadcast by a local radio station. There is absolutely nothing in the record, which includes many newspaper articles offered by the plaintiff, to indicate that the mayor made any comments of his own.
In Barr v. Mateo, supra, the United States Supreme Court immunized from defamation liability an executive officer who issued a public statement, not contained in a pleading, discussing the impending discharge of a subordinate official. By contrast, many courts have *266refused to apply the absolute privilege for statements contained in pleadings when copies of the pleadings are circulated to parties unconnected with the judicial proceeding, including the media. Asay v. Hallmark Cards, Inc., 594 F.2d 692, 697 (8th Cir. 1979) (Iowa law); Abbott v. United Venture Capital, Inc., 718 F. Sup. 823, 828 (D. Nev. 1988) (Nevada law); Williams v. Williams, 23 N.Y.2d 592, 599, 246 N.E.2d 333, 298 N.Y.S.2d 473 (1969) (New York law). Where the subject of the pleadings is the conduct of a public official, the public is, however, inevitably connected with the proceeding. Thus, without choosing between these two positions, we believe that the absolute privilege afforded statements in pleadings protects a mayor from liability for the infliction of emotional distress caused when he repeats to the media statements contained in a formal summons instituting a proceeding for the removal of a public official after a public hearing.
B
Our conclusion that neither the statement of the charges in the summons nor the mayor’s recital of them to the media can provide any basis for the claim of extreme emotional distress leaves as the only possible ground for such a claim the mayor’s action in instituting a vexatious suit by including in the summons two charges that the jury reasonably found to have been baseless. Arguably, the jury might have based a judgment of intentional infliction of emotional distress on that vexatious suit if the other requirements for an emotional distress action were met.
“ ‘In order for the plaintiff to prevail in a case for liability under . . . [the intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outra*267geous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe. Hiers v. Cohen, 31 Conn. Sup. 305, 329 A.2d 609 (1973); 1 Restatement (Second), Torts § 46.’ ” Petyan v. Ellis, supra, 253, quoting Murray v. Bridgeport Hospital, 40 Conn. Sup. 56, 62, 480 A.2d 610 (1984).25 Liability for intentional infliction of emotional distress requires “ ‘conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.’ ” Petyan v. Ellis, supra, 254 n.5, quoting W. Prosser & W. Keeton, Torts (5th Ed.) § 12, p. 60. Thus, “[i]t is the intent to cause injury that is the gravamen of the tort”; Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988); whereas lack of probable cause is the gravamen of the tort of vexatious suit. See Vandersluis v. Weil, supra, 356.
In this case, however, we need not decide whether the plaintiff’s evidence satisfies all the requirements for a recovery for intentional infliction of emotional distress. As the only basis for such a claim is the vexatious suit with respect to the two charges for which probable cause was lacking, our determination that the defendants’ liability for bringing those charges has been established makes any additional theory supporting the imposition of liability for the same act entirely superfluous. The plaintiff cannot recover any greater damages if liability can also be based on extreme emotional distress.26 Since the only viable basis for that claim is *268the vexatious suit, the damages resulting therefrom would not be enhanced if we were to conclude that liability may also be predicated thereon.
y
Our remand requires only a hearing in damages on the vexatious suit count during which DeLaurentis must prove the damages attributable to the vexatious charges against him. Ordinarily the reversal of a jury verdict requires a new trial of all the issues in the case. “Where the error as to one issue ... is separable from the general issues, the new trial may be limited to the error found, provided that such qualification or limitation does not work injustice to the other issues or the case as a whole.” Murray v. Krenz, 94 Conn. 503, 507, 109 A. 859 (1920). “But where the retrial of the single issue may affect the other issues to the prejudice of either party, the court will not exercise its discretion in limiting the new trial but will grant it de novo.” (Emphasis in original.) Id., 508. We have applied this principle in ordering retrials on both liability and damages when there was reason to believe that a verdict, so low in relation to the injuries sustained in a negligence case that reversal is warranted, may have resulted from a compromise reached by the jurors on the issue of liability. Fazio v. Brown, 209 Conn. 450, 457, 551 A.2d 1227 (1988); Malmberg v. Lopez, 208 Conn. 675, 682-83, 546 A.2d 264 (1988); Johnson v. Franklin, 112 Conn. 228, 232, 152 A. 64 (1930); Murray v. Krenz, supra. The verdict in the present case for $425,000 of compensatory damages and $35,000 of punitive damages does not indicate any disagreement among the jurors as to liability. Furthermore, having been instructed by the trial court that liability for vexatious suit could not be found unless all of the charges *269in the summons lacked probable cause, the jurors must be presumed to have evaluated each of them independently and to have concluded that all of them were baseless. There is no reason, therefore, to suspect that the jury’s finding of liability with respect to the two vexatious suit claims that are adequately supported by probable cause would not have been made if evidence concerning the two unsupported charges had not been presented. Such evidence may well have affected the award of damages, upon which we order a retrial, but cannot reasonably be deemed to have affected the determination of liability with respect to the two viable charges.
Some courts have held that it is the defendant in a vexatious suit who must apportion the damages when his vexatious charges were joined with meritorious charges, because it is the mingling of the two that makes apportionment difficult. See, e.g., Singleton v. Perry, supra, 498; Boogher v. Bryant, supra, 50-51. We believe, however, that the plaintiff in a vexatious suit action, like any other plaintiff, has the burden of proving damages. Compare Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 608-609, 590 A.2d 447 (1991) (where joint tortfeasors cause harm to the plaintiff, they, not the plaintiff, have the burden of apportioning the liability for that harm among them). The plaintiff need not, however, “divide his damages between the [accusations] with delicate nicety.” Boogher v. Bryant, supra, 50.
We need not address at this time the defendants’ claim that the court should have granted a remittitur as to the compensatory damages awarded, because those damages will have to be redetermined.27 The jury *270will also have a new opportunity to decide whether to award punitive damages.
We affirm the judgment based on the verdict imposing liability for a vexatious suit to the extent that it is based upon the inclusion of charges against DeLaurentis of having made reckless accusations against others and having refused to comply with the mayor’s orders. We remand the case for a hearing to ascertain the damages resulting from the wrongful inclusion of those charges as a basis for the removal proceeding.
We reverse the judgment based on the verdict imposing liability for intentional infliction of emotional distress because of the failure to confine its basis to the inclusion of the two charges upon which we have sustained the verdict of liability for vexatious suit. No further proceedings on this claim are necessary.
The verdict for damages must be set aside because of the failure to limit the award to those damages resulting from the inclusion of the two charges for which there was no probable cause.
The judgment is reversed in part and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other justices concurred.
The counts against the city alleged that “[a]t all times relevant to this action, defendant DiLieto acted by and on behalf of the defendant City of New Haven” and that DeLaurentis had given the city clerk timely notice *228of his claim against the city. The city’s liability for the mayor’s acts has not been challenged by the city, either before the trial court or before this court.
“[New Haven City Charter, art. XXXIV,] Sec. 220. grounds, procedure FOR REMOVAL BY MAYOR.
“Whenever the mayor has reasonable grounds for believing that any officer of the city not in the classified service is corrupt, incompetent or unfaithful to the duties of his office, or that the requirements of the public service demand his removal, he may summon said officer to appear before him at a time and place specified in said summons then and there in a public hearing to show cause why he should not be removed from office. Said summons shall contain a detailed written statement of the charges against the officer, shall be addressed to any sheriff, deputy sheriff, or constable authorized to serve legal process in the City of New Haven, with a direction to make personal service of the same upon the summoned officer at least ten days before the time affixed for said hearing. If, after a full hearing, the mayor shall find that the officer in question is corrupt, or incompetent, or unfaithful to the duties of his office, or that the requirements of the public *229service demand his removal he may remove such person from office, and thereupon shall forthwith file a written order of such removal with the city clerk.
“Sec. 221. APPEAL FROM REMOVAL BY MAYOR.
“Any officer removed from his office by the mayor as herein provided may appeal from the order removing him to the court of common pleas for New Haven County, which appeal shall be made returnable to said court not less that fifteen and not more than thirty days from the date of the order of removal and shall be served upon the mayor at least five days before the return day thereof. Said court upon return of said appeal shall forthwith fix a time for a hearing thereon at which it shall determine whether the mayor has acted arbitrarily, illegally, or so unreasonably as to have abused his discretion, and award costs. No officer removed by the mayor shall exercise any of the duties or powers of his office during the pendency of an appeal from the order removing him.”
The trial court used the term “malicious prosecution.” That term usually refers to the malicious instigation, without probable cause, of a criminal prosecution, whereas the term “vexatious suit” more commonly refers to the malicious institution, without probable cause, of a civil suit. The court’s use of the term “malicious prosecution” was inconsequential, however. We have held repeatedly that a vexatious suit action brought under General Statutes § 52-568 is governed by the same principles as apply in a malicious prosecution action; Schaefer v. O. K. Tool Co., 110 Conn. 528, 534, 148 A. 330 (1930); Frisbie v. Morris, 75 Conn. 637, 639, 55 A. 9 (1903); compare 3 Restatement (Second), Torts § 675, comment (d); a conclusion that applies equally to a vexatious suit action brought under the common law rather than the statute. See Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).
Rule 12 of the Federal Rules of Civil Procedure provides in pertinent part: “(b) How presented Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive plead*240ing or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
See footnote 2, supra. Section 220 of article XXXIV of the New Haven City Charter provides in part: “If, after a full hearing, the mayor shall find *244that the officer in question is corrupt, or incompetent, or unfaithful to the duties of his office, or that the requirements of the public service demand his removal he may remove such person from office, and thereupon shall forthwith file a written order of such removal with the city clerk.”
The summons used to initiate the removal proceeding provided in paragraph 7 (b): “That the undersigned as Mayor shall review and accept or dismiss the findings of fact and recommendations de removal or not, as submitted by said referee or arbitrator; and that if said findings de removal are adverse to you, shall remove you from office; and if favorable to you, shall dismiss the charges against you and the proceedings herein.”
The first clause of this paragraph expressly authorizes the mayor to “accept or dismiss the findings of fact and recommendations de removal or not, as submitted by said refereee or arbitrator.” The second and third clauses, which provide for removal, if the “findings” are adverse, and for dismissal of the charges, if the “findings” are favorable, would not become operative unless the mayor first accepted the findings of the arbitrator. It is clear, therefore, that the mayor never relinquished his power of removal as set forth in the charter.
Thus, judges and prosecutors are not absolutely immune for actions taken outside the judicial arena. See, e.g., Burns v. Reed, 500 U.S. , 111 S. Ct. 1934, 1944-45, 114 L. Ed. 2d 547 (1991) (prosecutor has only qualified immunity from civil rights liability for legal advice given to police); Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) (judge not immune from civil rights liability for administrative act of firing a probation officer).
“[Practice Book] Sec. 747. —sanctions for failure to comply
“If the prosecuting authority fails to comply with Sec. 740 [‘Disclosure by the prosecuting attorney’], the judicial authority may, on motion of the defendant or on his own motion, grant appropriate relief, which may include one or more of the following:
“(1) Requiring the prosecuting authority to comply;
“(2) Granting the defendant additional time or a continuance;
“(3) Relieving the defendant from making a disclosure required by Sec. 756, prohibiting the prosecuting authority from introducing specified evidence, or dismissing the charges; or “(4) Entering such other order as he deems proper.”
“[Practice Book] Sec. 755.--failure to comply with order
“If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority, may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”
“[Practice Book] Sec. 886. — mistrial
“Sec. 887.--FOR PREJUDICE TO DEFENDANT
“Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the procedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. If there are two or more defendants, the mistrial shall not be declared as to a defendant who does not make or join in the motion.”
“[Practice Book] Sec. 984. criminal contempt
* ** *
“Sec. 986. -WHO MAY BE PUNISHED
“The judicial authority may punish by fine or imprisonment of both:
“(1) Any person who in the court’s presence behaves in a contemptuous or disorderly manner;
“(2) Any person who violates the dignity and authority of any court, or any judicial authority, in its presence or so near thereto as to obstruct the administration of justice;
“(3) Any officer of the court who misbehaves in the conduct of his official court duties; or
“(4) Any person disobeying in the course of a civil or criminal proceeding any order of a judicial authority.”
The New Haven city charter provides for judicial review of an officer’s discharge. The officer may be reinstated if the termination was arbitrary and capricious. See footnote 2, supra. Groundless civil suits may also be reversed after appellate review, but that does not entitle those who bring them to enjoy absolute immunity from liability for the damages caused by a vexatious suit.
As these cases indicate, municipal officers are entitled to qualified immunity for their performance of discretionary duties. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 166, 544 A.2d 1185 (1988). Because the defendants did not claim qualified immunity as a defense and did not object *248to the failure of the trial court to include a charge on qualified immunity in its instructions to the jury, we decline to consider the issue, which the defendants mention in a footnote to their appellate brief.
See, e.g., Melvin v. Pence, 130 F.2d 423, 426-27 (D.C. Cir. 1942) (proceeding to revoke private detective’s license); Hardy v. Vial, 48 Cal. 2d *249577, 580-81, 311 P.2d 494 (1957) (administrative termination of professor); Dixie Broadcasting Corporation v. Rivers, 209 Ga. 98, 105, 70 S.E.2d 734 (1952) (proceedings filed with F.C.C.); Cassidy v. Cain, 145 Ind. App. 581, 588, 251 N.E.2d 852 (1969) (proceeding before state board of registration to revoke optometrist’s license); Rainier’s Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 566, 117 A.2d 889 (1955) (order to show cause why license should not be revoked by Office of Milk Industry); Groat v. Town Board, 73 App. Div. 2d 426, 429, 426 N.Y.S.2d 339, appeal dismissed, 50 N.Y.2d 928 (1980) (dismissal of police officer by town board after trial before hearing officer); Donovan v. Barnes, 274 Or. 701, 704-705, 548 P.2d 980 (1976) (student disciplinary proceeding); Kauffman v. A. H. Robins Co., 223 Tenn. 515, 523, 448 S.W.2d 400 (1969) (complaint with board of pharmacy); 52 Am. Jur. 2d, Malicious Prosecution § 19 and cases cited therein; compare, e.g., Chen v. Fleming, 147 Cal. App. 3d 36, 41, 194 Cal. Rptr. 913 (1983) (complaint to bar association that did not lead to initiation of proceedings before body having power to revoke license); Imig v. Ferrar, 70 Cal. App. 3d 48, 138 Cal. Rptr. 540 (1977) (departmental investigation of police officer that did not lead to formal proceeding); but see Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671, aff’d on reargument, 18 N.J. 611 (1955) (charges of unprofessional conduct filed with bar association; result later reversed by statute); see 1F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.10; W. Prosser & W. Keeton, Torts (6th Ed. 1989) § 120.
See, e.g., Schenck v. Minolta Office Systems, Inc., 802 P.2d 1131 (Colo. App. 1990); Bonney v. King, 201 Ill. 47, 50, 66 N.E. 377 (1903); Withall v. Capitol Federal Savings of America, 164 Ill. App. 3d 851, 855-56, 518 N.E .2d 328 (1987), cert. denied, 119 Ill. 2d 576, 522 N.E.2d 1259 (1988).
See, e.g., Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274 (1986); Jaffe v. Stone, 18 Cal. 2d 146, 150, 114 P.2d 335 (1941); Stanley v. Superior Court of Sacramento County, 130 Cal. App. 3d 460, 463-64, 181 Cal. Rptr. 878 (1982); Union Oil of California v. Watson, 468 So. 2d 349, 353-54 (Fla. App.), review denied, 479 So. 2d 119 (Fla. 1985); Carlsen v. Oakwood Hills, 164 Ill. App. 3d 396, 400, 517 N.E.2d 1107 (1987), appeal denied, 119 Ill. 2d 554, 522 N.E.2d 1241 (1988); Wynne v. Rosen, 391 Mass. 797, 800-801, 464 N.E.2d 1348 (1984); Mondello v. Mondello, 161 App. Div. 2d 690, 691, 555 N.Y.S.2d 826 (1990); 3 Restatement (Second), Torts § 660, comment (c), and § 674 (b), comment (j).
See, e.g., Lackner v. LaCroix, 25 Cal. 3d 747, 750, 602 P.2d 393,159 Cal. Rptr. 693 (1979); Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585, 587, 75 P. 168 (1904); Crawford v. Theo, 112 Ga. App. 83, 85,143 S.E.2d 750 (1965) (civil context only); Joiner v. Benton Community Bank, 82 Ill. *2512d 40, 45, 411 N.E.2d 229 (1980); Wong v. Taber, 422 N.E.2d 1279, 1284 (Ind. App. 1981); Woodyatt v. Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962); Robinson v. Robinson, 362 Pa. Super. 568, 575, 525 A.2d 367 (1987), appeal dismissed, 518 Pa. 63, 540 A.2d 529 (1988).
In the criminal context, an individual convicted of a more serious charge than the charge on which he was acquitted may not be found to have been “discharged,” the prerequisite for a malicious prosecution action predicated upon an underlying criminal prosecution. See v. Gosselin, 133 Conn. 158, 161, 48 A.2d 560 (1946); McGann v. Allen, 105 Conn. 177, 134 A. 810 (1926) (discharge requirement); see Goree v. Gunning, 738 F. Sup. 79, 82-83 (E.D.N.Y. 1990); Katz v. Morgenthau, 709 F. Sup. 1219, 1232 n.3 (S.D.N.Y.), aff'd in part and rev’d in part, 892 F.2d 20 (2d Cir. 1989); Ruff v. Eckerds Drugs, Inc., 265 S.C. 563, 220 S.E.2d 649 (1975); compare Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989); Graebe v. Falcetta, 726 F. Sup. 36 (E.D.N.Y. 1989); Hickland v. Endee, 574 F. Sup. 770 (N.D.N.Y. 1983); Cuthrell v. Zayre of Virginia, Inc., 214 Va. 427, 201 S.E.2d 779 (1974).
Cf. Fairfield Lumber & Supply Co. v. Herman, 139 Conn. 141, 147, 90 A.2d 884 (1952) (defining “cause of action” in the context of then Practice Book § 7819 [now § 133] as “the single group of facts which gives rise to one or more rights to relief”); see also Practice Book § 386 (authorizing severance of claims and partial summary judgments); Practice Book § 283 (authorizing trial of one or more issues before the others).
There was ample evidence from which the jury could have concluded that the mayor acted with “malice” in making each of the charges. In a vexatious suit action, the defendant is said to have acted with “malice” if he acted primarily for an improper purpose; that is, “for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based”; 3 Restatement (Second), Torts § 676; such as the desire to “occasion expense” to the other party. Whipple v. Fuller, 11 Conn. 582, 586 (1836). Thus, while malice may be inferred from the lack of probable cause, lack of probable cause may not be inferred from malice. Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).
The defendants also claim that the charges were based on an “investigation” by the corporation counsel’s office. The charges themselves state *259that they are based on minutes of meetings and oral statements made by unnamed persons. Whether or not the claimed investigation actually took place, however, the letters, together with DeLaurentis’ refusal to refute them, were sufficient to amount to probable cause absent the mayor’s knowledge or belief that the charges were baseless.
Because we reject as a matter of law the jury’s conclusion that the mayor lacked probable cause for this charge, any error in admitting into evidence the hearsay statements by Piurek, Vegliante and Sawyer, which DeLaurentis introduced to show what information contradicting the charges would have been readily available to the mayor had he undertaken an investigation, is harmless.
The defendants have challenged the trial court’s refusal to allow them to amend their answer to deny an allegation in the complaint that the mayor had accused DeLaurentis of being “corrupt.” Whether to allow amendment of pleadings is a decision that rests in the sound discretion of the trial court, which may decline to do so if the amendment would unfairly prejudice the other party. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 561-62, 525 A.2d 954 (1987). In this case, the trial court expressly advised the jury that in finding the facts they were not bound by the defendants’ answer “admitting” that the mayor had charged DeLaurentis with being “corrupt,” so that the error, if any, was harmless.
The defendants also claim that the trial court improperly refused to submit their proposed special interrogatories to the jury. Those interrogatories required the jury to specify its conclusions with respect to each element of a vexatious suit action. The jury had already been asked to render separate verdicts on the vexatious suit and emotional distress claims. The trial court’s decision was within its sound discretion. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 527, 457 A.2d 656 (1983). The defendants did not ask the jury to make separate findings of probable cause for each charge contained in the summons.
First amendment concerns may also be implicated when the sole basis for a claim of intentional infliction of emotional distress is a publication or statement criticizing the conduct of a public official. See Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988).
See Part III of this opinion for a full discussion of this issue.
To the extent that this court’s opinion in Blakeslee & Sons v. Carroll, 64 Conn. 223, 233, 29 A. 473 (1894), restricted the absolute privilege to statements to or before a court established by law in which rights may finally be determined; id.; it has been overruled by Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986).
In Petyan v. Ellis, 200 Conn. 243, 247-48, 510 A.2d 1337 (1986), we held that an employer’s statement on a “fact-finding supplement” form provided by the employment security division of the state labor department was protected by the absolute privilege reserved for witnesses in a judicial proceeding because it was within the labor department’s power to subpoena the employer. Id., 251. We note that an employer who gives a false statement in order to reduce his contributions to the unemployment compensation fund; see id., 258 (Santaniello, J., dissenting); may be subjected to criminal penalties. See General Statutes § 31-273 (d).
If the constitutional standards for a defamation action based on publications about a public official or public figure are also applicable to actions for intentional infliction of emotional distress based upon such publications, it is by no means clear that mere allegations in a pleading could ever reasonably be interpreted as stating actual facts about the public figure involved; Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988); because the context in which they are made indicates that the speaker intends the veracity of the allegations to be tested by a judicial or quasijudicial process, not merely by the uncertain forces at work in the marketplace of ideas. Allegations, by definition, are not statements of fact. See Petyan v. Ellis, 200 Conn. 243, 259, 510 A.2d 1337 (1986) (Santaniéllo, J., dissenting).
If the “conduct” underlying the claim of intentional infliction of emotional distress is a defamatory publication concerning a public figure, the plaintiff must also prove that the defendant acted with the standard of malice applicable to defamation actions set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and its progeny. See Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988).
Punitive damages are permissible in a vexatious suit action. Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). “Punitive damages are awarded when the evidence shows a reckless indifference to the rights of *268others or an intentional and wanton violation of those rights.” Id. Thus, evidence of the mayor’s intent that would have been relevant to the plaintiffs action for intentional infliction of emotional distress would also be relevant to his claim for punitive damages in the vexatious suit action.
Had DeLaurentis brought this action under General Statutes § 52-568 (a), he would have been entitled to an award of double his compensatory damages, or treble damages if the jury found he had proved “actual” malice, that is, had proven malice by means of evidence with respect to the mayor’s mental state and not only by the inference arising from making charges without probable cause. Having chosen not to bring his action under the statute, he is foreclosed from relying on it at this time. Practice Book § 109A. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841947/ | F. X. Hennessy, J.
The defendant, Brian Niblack, was charged in an original information with the crime of murder in violation of General Statutes § 53a-54a,1 and, in an additional information, with the crimes of escape from custody in violation of General Statutes § 53a-171, and kidnapping in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8. On September 15, 1988, the trial court, Quinn, J., held a hearing pursuant to article first, § 8 of the Connecticut constitution as amended,2 and General Statutes *273§ 54-46a3 to determine whether there was probable cause to prosecute the defendant for the crime of murder. Probable cause to prosecute was found, and the defendant pleaded not guilty to the murder charge. On November 8, 1988, the defendant successfully moved to vacate the probable cause determination because the exculpatory information mailed by the state was not received by defense counsel until two days after the conclusion of the probable cause hearing. A new hear*274ing date of November 15, 1988, was set by the court. At the second hearing, the trial court, Corradino, J., found probable cause. The defendant, thereafter, pleaded not guilty and, while awaiting trial, entered into plea negotiations with the state. Following those negotiations, the defendant pleaded guilty on October 27,1989, to the charges of murder and escape from custody pursuant to the doctrine contained in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). He also pleaded guilty on December 5, 1989, to two unrelated counts of robbery.4 The court imposed an aggregate fifty year prison sentence for all charges in accordance with a plea agreement. The defendant now appeals to this court. We affirm the judgments of the trial court.
The facts in this case, as summarized by the assistant state’s attorney at the defendant’s plea canvass, are as follows. On the morning of June 11,1987, Dean Allen, the son of the murder victim, James Allen, had become involved in a fight with Harvey Ward on Eastern Circle in New Haven. Later in the day, Ward telephoned the defendant, who did not reside on Eastern Circle, to come to the area. The defendant, Ward and two other individuals arrived at Eastern Circle and found a fight taking place between Dean Allen and Derrick Gillian. The victim was attempting to break up the fight when the defendant displayed a gun, which he fired several times into the air. The victim told the defendant to put the gun away and, as the victim stepped toward him, the defendant leveled the gun and fired one shot striking the victim in the heart. The victim died as a result of this wound.
In this appeal, the defendant claims that he was denied a valid probable cause hearing, thereby depriving the trial court of jurisdiction over him and render*275ing all subsequent proceedings moot. He claims that the probable cause hearing was invalid because the trial court: (1) denied his request for a copy of the statement given to the New Haven police by Raymond Wallace, the state’s sole witness at the probable cause hearing; (2) failed to hold a probable cause hearing within sixty days from the issuance of the information as required by General Statutes § 54-46a (b);5 and (3) denied him the opportunity to present evidence of an affirmative defense that would have negated a finding of intent, which is a necessary element of the crime of murder. The defendant raises the additional claim that the trial court, Damiani, J., incorrectly accepted his plea of guilty, contending that it was not made knowingly, intelligently and voluntarily for three reasons: (1) the trial court’s active participation in the plea process coerced his plea; (2) no factual basis was established to support a finding that he had acted with intent to commit murder; and (3) the trial court failed to follow through on a promise made to him in connection with his plea bargain.
I
The defendant first contends that because he was denied a valid probable cause hearing, the trial court lacked jurisdiction over his person, thereby invalidating his plea of guilty under the Alford doctrine. The state argues, however, that the defendant’s unconditional guilty plea constitutes a waiver of his subsequent challenge to the trial court’s in personam jurisdiction. We agree.
In State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986), we recognized that an adversarial probable cause hearing is a critical stage in the prosecution of a defendant and held that “under the express terms of article first, § 8, of our state constitution as amended, [a valid probable cause hearing] is a jurisdictional *276prerequisite to continuing prosecution.” Acknowledging that § 54-46a expressly allowed for the waiver of a preliminary hearing to determine probable cause, we explained in State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), that our reference to a “jurisdictional prerequisite” in State v. Mitchell, supra, “pertains, not to subject matter jurisdiction, but only to jurisdiction over the person of the defendant.” See State v. Boyd, 214 Conn. 132, 136, 570 A.2d 1125 (1990); State v.McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989). We therefore concluded in State v. John, supra, that defects at a probable cause hearing relate to jurisdiction over the person of the defendant and are waived if not seasonably raised.
The defendant’s chief argument in support of his claim that he has not waived his right to challenge the validity of his probable cause hearing is that the relatively new mandate6 in our state constitution that there be a valid probable cause hearing prior to the prosecution of an individual charged with a crime punishable by death or life imprisonment should remove his case from the application of established principles of waiver of defects related to in personam jurisdiction. We are not persuaded by this argument.
“As a general rule, an unconditional plea of guilty . . . intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. . . . Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable *277after a plea of guilty . . . .” (Emphasis in original.) State v. Madera, 198 Conn. 92, 97-98, 503 A.2d 136 (1985); see State v. Gilnite, 202 Conn. 369, 374 n.4, 521 A.2d 547 (1987); Buckley v. Warden, 177 Conn. 538, 542-43, 418 A.2d 913 (1979). Although we noted in State v. Madera, supra, 98 n.6, that a guilty plea, whether conditional or unconditional, does not preclude review of “jurisdictional defects,” we explained that those defects have been characterized as those that would prevent a trial from occurring in the first place, as when the court lacks jurisdiction over the case.
When we stated in State v. John, supra, 665 n.8, that “like other defects relating to jurisdiction of the person, any infirmity in the evidence presented at a probable cause hearing is deemed to be waived if not seasonably raised,” we did not conclude that the mandate in our state constitution that there be a valid probable cause hearing precluded such a waiver. Likewise, we are not persuaded that a challenge based on this constitutional mandate differs so greatly from any other constitutional challenge to a pretrial proceeding so as to require this court to deviate from the principle that an unconditional plea of guilty, intelligently and voluntarily made, bars the later assertion of a constitutional challenge to a pretrial proceeding. State v. Madera, supra.
We therefore conclude that the defendant’s entry of a guilty plea under the Alford doctrine constituted a waiver of his three claims challenging the validity of his probable cause hearing.
II
The defendant’s claim that the trial court, Damiani, J., incorrectly accepted his plea of guilty because it was not made knowingly, intelligently and voluntarily is raised for the first time in this appeal. “Only in most exceptional circumstances can and will this court con*278sider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).
In State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), we articulated guidelines for the application of the standard of review for errors not preserved at trial set forth in State v. Evans, supra. We held that a defendant can prevail on such a claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 239-40.
The state contends that review of this claim, not raised below, is precluded because none of the reasons offered by the defendant in support of his claim implicate constitutional rights and therefore fail to satisfy the second condition articulated in State v. Golding, supra. We agree.
A
If a defendant’s guilty plea is not made knowingly and voluntarily, it has been obtained in violation of due process and is therefore void. Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987).
The defendant contends that the record supports his claim that his guilty plea was involuntary because the trial court actively participated in the plea bargaining process and exerted pressure upon him to plead guilty. In support of his allegation of pressure, the defendant *279directs our attention to a statement made by the court on the day of his guilty plea when he requested, through counsel, a one week continuance to think about the plea. In denying this request, the court stated: “We’ve discussed it at great length at pretrial and I’m not going to hold it open . . . . If he doesn’t want the offer, I don’t want him to feel he’s being pressured. He can have his trial and if he’s acquitted I wish him a lot of luck, but I’m not going to have any games played with me.”
We recognize that our trial courts have a responsibility to administer their resources in a manner that allows all defendants to have their cases reach closure. The defendants cannot be allowed to dictate the pace at which criminal matters shall proceed. The court’s statement above does not indicate that it interfered with the defendant’s right to trial or with his ability to confer with his attorney in order to make a decision on a proposed plea bargain that had been under consideration for a period of time. We conclude therefore that the statement by the court, which was not objected to at the time it was made, does not indicate interference with the defendant’s right such that his guilty pleas must be deemed coerced and his due process rights thus violated.
In support of his allegation that the court actively participated in the plea bargaining process, the defendant points to the following colloquy between the court and the assistant state’s attorney. After the plea canvass, the court asked the assistant state’s attorney: “Is your recommendation fifty years or is my sentence I indicated fifty years?” The assistant state’s attorney answered: “That’s yours.” The court then stated: “I’ve indicated to both the state and to your lawyer that I would impose a sentence of fifty years.”
*280The defendant also claims that this statement by the court, along with the statement, “we’ve discussed it at great length at pretrial,” demonstrates the active participation of the court in the plea bargaining process, a participation criticized by this court in State v. Fullwood, 194 Conn. 573, 484 A.2d 435 (1984). In that case, we stated that “[although we have not adopted the federal rule flatly prohibiting trial judges from any participation in plea bargaining . . . our rules of practice expressly authorized the trial judge to do no more than to indicate whether a proposed agreed disposition may be accepted or rejected. . . . Active involvement by trial judges in plea negotiations has frequently been criticized.” Id., 580-81. Our Appellate Court has held that “[t]he prohibition against trial judges participating in plea negotiations is not, in itself, a matter of constitutional law; Flores v. Estelle, 578 F.2d 80, 85 (5th Cir. 1978), cert. denied, 440 U.S. 923, 99 S. Ct. 1253, 59 L. Ed. 2d 477 (1979); provided that the plea is not judicially coerced and remains voluntary. Id.” State v. Safford, 22 Conn. App. 531, 537, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990).
The defendant in this case chose not to go to trial but rather to accept the conditions of a plea agreement and to plead guilty. The plea negotiations involved an assistant state’s attorney, defense counsel and eventually a judge who assisted the adversaries in reaching an agreement, which resulted in the court’s recommendation of an aggregate sentence of fifty years on all charges. The judge was responsible for conducting plea negotiations and, if an agreement was reached, for holding a plea and sentencing hearing. If negotiations were not successful, however, a judge who was not involved in the plea negotiations would have presided at trial and pronounced sentence if the defendant were found guilty. We approve of the procedure followed in reaching the plea agreement.
*281We conclude that the available record fails to indicate that the participation of the judge who presided over and supervised the challenged plea negotiations coerced a plea from the defendant. Accordingly, this unpreserved claim is not of constitutional magnitude and will not be reviewed further. State v. Golding, supra.
B
The second reason offered by the defendant in support of his claim that his guilty plea was involuntary is that the court accepted his plea without a factual basis. He contends that the facts recited by the assistant state’s attorney at the plea canvass included no support for a finding that the defendant had acted with the intent to cause death, an essential element of the crime of murder, and that without such a factual basis in the record, the trial court could not have correctly concluded that his plea was made knowingly and voluntarily.7 Noteworthy, again, is the defendant’s failure to file a motion to withdraw his plea pursuant to Practice Book § 721 (5) for lack of a factual basis.8
In Paulsen v. Manson, 203 Conn. 484, 490-91, 525 A.2d 1315 (1987), we held that, in light of federal case law clarifying due process requirements attendant to guilty pleas, our state courts are under no constitutionally imposed duty to establish a factual basis for a guilty plea prior to its acceptance unless the judge is put on notice that there may be some need for such an inquiry.
The defendant contends that his plea of guilty under the Alford doctrine, which was not an admission that *282he had committed the crime, was sufficient to put the court on notice that a factual basis for his plea had to be established. While we disagree with this argument, further discussion is unnecessary, for we conclude that the record does provide a factual basis for a finding that the defendant acted with intent to cause death.
Included in the assistant state’s attorney’s factual recitation at the plea canvass is the following: “Mr. Nib-lack at that point pulled a gun out of his sweatshirt, fired it several times in the air. Mr. Allen said something to the effect of put the gun away, it’s dangerous to have it. As he [Allen] took a step toward Mr. Nib-lack, Mr. Niblack leveled the gun and fired one shot at Mr. Allen which struck him directly in the heart. He subsequently died shortly thereafter.”
We conclude that from the defendant’s conduct, as reported by the assistant state’s attorney, the trial court could reasonably have found that the requisite element of intent existed. The defendant’s claim that his guilty plea was involuntary because the trial court incorrectly accepted that plea without a factual basis is, therefore, without merit.
C
The defendant’s final reason for claiming that his plea was involuntary and therefore should not have been accepted by the trial court is that the court did not fulfill a promise made to him in connection with his plea bargain.
During the plea bargaining process, the court agreed to recommend to the commissioner of correction that the defendant be granted housing arrangements that would address the defendant’s concern for his well-being. The court stated that this agreement, which the defendant has characterized as a promise, would be *283effectuated by having the clerk, on the day of the defendant’s sentencing, note the recommendation on the mittimus.
At the sentencing hearing, when the court was requested by defense counsel to honor its agreement, the court instructed defense counsel to provide a letter outlining the recommendation, which would be attached to the mittimus for consideration by the commissioner of correction. In response, defense counsel stated: “Judge, I do have such a letter. I’ll attach it.”
“ ‘When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state. . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea.’ State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986).” State v. Reid, 204 Conn. 52, 58-59, 526 A.2d 528 (1987). The defendant contends that the court, during plea negotiations and at the plea canvass, explicitly promised the defendant the housing arrangements he sought to induce his guilty plea, and that by merely attaching a letter from defense counsel to the mittimus, the trial court deviated from that promise and thus should have given the defendant the opportunity to withdraw his plea.
We find the defendant’s argument flawed in several respects. First, no attempt was made to preserve this issue for appeal either by an objection to the method chosen by the court at sentencing to honor the agreement made during plea negotiations and at the plea canvass or by a request to withdraw the plea. Second, the court had no authority to require the commissioner of correction to take any particular course of action with regard to the housing of inmates and could not so prom*284ise. Finally, the record does not support the defendant’s contention that the court’s statements made at the plea canvass constituted an unequivocal promise that the housing arrangements he sought would be carried out. If a promise had been made by the court, it was a promise to recommend to the commissioner of correction the housing arrangements the defendant sought, which recommendation was made by attaching defense counsel’s letter to the mittimus. That defense counsel had prepared and brought to the sentencing hearing a letter to the commissioner of correction regarding the defendant’s desired housing arrangements strongly suggests that the court’s approach to this matter was known by counsel before the hearing and therefore worked no surprise to the disadvantage of the defendant.
Because the trial court did not fail to follow through on a promise made to induce the defendant to plead guilty, no further review of this claim of the defendant is necessary.
The facts in this case do not persuade us that there was a violation of due process, that the spirit of the plea bargain was violated, or that the voluntariness of the plea was so compromised that this court should order that the defendant be allowed to withdraw his plea.
The judgments are affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
The constitution of Connecticut, article first, § 8 as amended by article seventeen, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
“[General Statutes] Sec. 54-46a. probable cause hearing for persons CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
“(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
“(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”
The assistant state’s attorney nolled the kidnapping charge on October 27, 1989.
See footnote 3, supra.
Amendment seventeen to article first, § 8, of the Connecticut constitution was approved by the electorate on November 2, 1982, and certified by the secretary of the state on November 24, 1982.
The defendant maintained throughout these proceedings that he never aimed the gun at any specific person but rather fired wildly as he ran from the crowd that threatened him.
Practice Book § 721 provides in pertinent part: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows ... (5) There was no factual basis for the plea . . . .” | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841948/ | Callahan, J.
The principal issue in this appeal is whether an insurance company may use collateral estoppel to bar the heirs of a homicide victim from' relitigating the issue of the criminal defendant’s intent to cause the injuries that resulted in the victim’s death.
The defendant, Russell F. Manfredi (Manfredi), was convicted of the crime of manslaughter in the first degree for the killing of his wife, Catherine Manfredi. The named defendant, Margaret Billings Jones (Jones), is the administratrix of the estate of the decedent. The plaintiff, Aetna Casualty and Surety Company, Manfredi’s *287insurer at the time his wife was killed, brought this declaratory judgment action to determine the extent of its obligation to pay damages awarded to Jones against Manfredi in a wrongful death action. The plaintiff moved for summary judgment claiming that, as a result of the criminal verdict, the defendants were collaterally estopped from relitigating the question of Manfredi’s intent, a crucial aspect of its claim that it had no obligation to pay under its policies. That motion was denied. Jones subsequently moved for summary judgment, claiming that the state court was an inappropriate forum for the declaratory judgment action to determine the plaintiff’s liability. After that motion was granted, the plaintiff appealed to the Appellate Court, claiming error in regard to both of the trial court’s rulings on the motions for summary judgment. This court transferred the case to itself pursuant to Practice Book § 4023. We now reverse both of the rulings on the summary judgment motions.
The litigation in this case results from the killing of Catherine Manfredi by her husband, Russell Manfredi, on March 8, 1985. The facts concerning that incident are more fully set forth in State v. Manfredi, 17 Conn. App. 602, 555 A.2d 436 (1989), aff’d, 213 Conn. 500, 569 A.2d 506, cert. denied, U.S. , 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). In the criminal case, Manfredi pleaded not guilty to the charge of murder in violation of General Statutes § 53a-54a1 and was *288tried by a jury of twelve. He elected to testify, and admitted to the jury that he had caused the death of his wife by striking her on the head with a baseball bat. He denied, however, that he had intended to cause her death. The jury returned a verdict of guilty of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2).2 That verdict required the jury to have found that the state had proved beyond a reasonable doubt that Manfredi had intentionally caused the death of his wife, and also to have found that he suffered from an extreme emotional disturbance at the time of the killing. He was sentenced to twenty years imprisonment.
Following the death of the decedent, Jones was appointed administratrix of her estate. In that role, on March 20,1985, Jones brought a wrongful death action in the Superior Court against Manfredi. The plaintiffs motion to intervene in that suit was denied. On December 16, 1988, a default judgment was entered against Manfredi, and on January 18,1989, he was ordered to pay damages in the amount of $450,000 to the estate of his deceased wife.
At the time of his wife’s death, Manfredi was the named insured on a homeowner’s insurance policy and a personal excess indemnity insurance policy, both of which were issued by the plaintiff. Although these policies provided coverage to Manfredi for bodily injury claims, both contained language limiting coverage only *289to those injuries that were not intentionally caused by the insured. Because of its potential liability for Manfredi’s fatal injuries to his wife, the plaintiff, on November 26,1986, filed a declaratory judgment action in the Superior Court. That action is the subject of this appeal.
The complaint asserted that the insurance policies provided by the plaintiff did not cover the injuries suffered by the decedent because Manfredi intended to injure her. On December 18, 1986, Jones moved to strike the complaint, arguing that pursuant to Practice Book § 390 (c)3 the declaratory judgment action was inappropriate and that the parties should seek redress by “some other form of procedure.” The motion to strike was denied. On November 9,1987, the plaintiff moved for summary judgment, claiming that the finding by the jury in Manfredi’s criminal trial that he had intentionally caused the death of his wife collaterally estopped both Manfredi and Jones from relitigating the issue of Manfredi’s intent. The trial court, O’Neill, J., denied that motion on the basis that Manfredi’s intent presented a question of fact that was inappropriate to determine by a motion for summary judgment. This ruling presents one of the bases of this appeal. On November 9,1987, a default judgment was entered against Manfredi in the declaratory judgment action.
On April 11,1989, during the pendency of the declaratory judgment action, Jones filed suit in the federal District Court for the District of Connecticut pursuant to General Statutes (Rev. to 1989) § 38-1754 request*290ing that the judgment in the wrongful death action be enforced against the plaintiff. On June 7, 1989, the plaintiff moved to stay the federal proceeding pending a decision on the collateral estoppel question in the state court. After the motion for a stay was denied without prejudice, the plaintiff filed a motion for summary judgment in the federal court raising the same collateral estoppel issue that it had raised in the state court. Upon receipt of the motion, the federal court, on February 8, 1990, sua sponte, stayed the federal proceeding “to await resolution of the parallel state action.”
On February 23, 1990, Jones moved for summary judgment in the state court declaratory judgment action. In support of her motion, Jones claimed, as she had in her earlier motion to strike, that “some other form of procedure” was more appropriate than the state declaratory judgment action. Although the federal court had stayed the action in that court in anticipation of the state court’s resolution of the issues, Jones suggested that the federal court was the more appropriate forum to hear the case. On July 2,1990, the trial court, Maloney, J., granted Jones’ motion for summary judgment on the ground that the plaintiff’s declaratory judgment action was “superfluous” in light of the pending federal action. Presumably, this was a determination under Practice Book § 390 (c) “that the parties should be left to seek redress by some other form of *291procedure.”5 It is that ruling that provides the second of the bases for this appeal.
On appeal, the plaintiff claims that the trial court improperly granted Jones’ motion for summary judgment and denied its motion for summary judgment. The plaintiff argues that Jones’ motion should not have been granted because: (1) her claims were inappropriate for a motion for summary judgment and were more properly the subject of a motion to strike; (2) under the doctrine of the law of the case she was precluded from reasserting claims raised in a prior motion to strike; and (3) the state court was the proper forum, and its declaratory judgment action the better procedure to decide the issues raised.6
The plaintiff further claims that the trial court erred in failing to grant its earlier motion for summary judgment. With respect to this claim, the plaintiff asserts that the motion should have been granted because: (1) both Manfredi and Jones failed to comply with Practice Book § 3807 in opposing the plaintiff’s motion for *292summary judgment; (2) there is no issue of material fact with respect to Manfredi’s intent to injure his wife because that issue was conclusively determined by his criminal jury and principles of collateral estoppel bar him from relitigating that issue; and (3) because Jones is in privity with Manfredi, collateral estoppel bars her from relitigating the issue of his intent.8
I
We first address the plaintiff’s claim that the trial court improperly granted Jones’ motion for summary judgment. At the time that she moved for summary judgment in the state court, she had previously filed an action pursuant to General Statutes (Rev. to 1989) § 38-175 in the federal district court to compel the plaintiff to pay the damages awarded to the decedent’s estate in the wrongful death action against Manfredi. The state court granted her motion, reasoning that to allow the federal court to decide the collateral estoppel issue in connection with Jones’ lawsuit was a more appropriate procedure than the state declaratory judgment action. The plaintiff asserts that the declaratory judgment action was the proper procedural vehicle and that the state court was the proper forum. We agree.
When reviewing a trial court’s ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no “genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Prac*293tice Book § 384;9 Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Despite the fact that Jones entitled her motion “Motion For Summary Judgment,” we conclude that both the substance of the motion and the trial court’s ruling on the motion demonstrate that it is more accurately described as a motion to strike. The motion is not predicated on a claim that there are no genuine issues of material fact to be litigated. Instead, it simply states that the state declaratory judgment action was not the best avenue for litigating the factual issues that do exist. Moreover, as a practical matter, the trial court treated Jones’ motion as if it were a motion to strike.10 We have stated that whether a court should grant declaratory relief is properly decided by a motion to strike. England v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981); Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 360, 377 A.2d 1099 (1977). Therefore, we shall address her motion for summary judgment as if it were a properly presented motion to strike.11 See McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 526-27, 590 A.2d 438 (1991); England v. Coventry, supra.
“[A] successful motion to strike an action for a declaratory judgment upon the ground of available alternative means of redress . . . must show that the court could not in the exercise of sound discretion permit the *294action to proceed.” England v. Coventry, supra, 365. In granting Jones’ motion, the trial court apparently decided that the federal district court, in which she had filed a subrogation action under § 38-175, was the more appropriate forum to hear the plaintiff’s claims. The trial court’s order states that “[t]he question of the plaintiff’s liability under its insurance policies is the sole issue before the court in Jones v. Aetna Casualty & Surety Co., now pending in the federal district court. Accordingly, this action is superfluous . . . .”
The trial court’s conclusion that the federal court was the more appropriate arena in which to hear the issues raised by this case was, under the circumstances, an abuse of discretion. At the time of Jones’ motion for summary judgment, the declaratory judgment action had been pending in the state court for three and one-half years. Jones initiated the federal court action nearly two and one-half years after the declaratory judgment action had been filed. Further, as a direct result of the state declaratory judgment action, the federal court, sua sponte, stayed the federal proceedings to await the decision of the state court. In granting the stay, the federal court noted that the issues of law in the state and federal courts “are identical.” (Emphasis in original.) The court also noted that “[t]he issues to be decided in this case are purely matters of state law” and “[n]ot only does state law provide the exclusive rule of decision, but the issue of law is one of first impression in Connecticut.” For all of the reasons cited above, namely, that this is an important issue of purely state law, it is an issue of first impression, the state action was filed well in advance of the federal action, and the federal court had previously stayed the federal action in deference to the state proceeding, we conclude that the trial court abused its discretion in granting Jones’ motion for summary judgment.
*295II
We now address the plaintiffs claim that its own motion for summary judgment was improperly denied.12 The plaintiff contends that, because of exclusions provided for in the insurance policy, it is liable to Jones only if Manfredi injured his wife unintentionally. Further, it asserts that the criminal trial resolved that issue in its favor and that principles of collateral estoppel bar relitigation. We agree.
“The party moving for summary judgment ‘ “has the burden of showing the absence of any genuine issue *296as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” ’ D.H.R. Construction Co. v. Donnelly, [supra, 434].” Mingachos v. CBS, Inc., supra, 111. In this case, the insurance policies unambiguously provide that the plaintiff is not liable for injuries intentionally caused by the insured. Therefore, if Jones is collaterally estopped from relitigating the issue of intent, there are no genuine issues of material fact and her claim for recovery necessarily fails. Our conclusion that collateral estoppel bars relitigation of the issue of Manfredi’s intent is dispositive of the plaintiffs claim that its motion for summary judgment was improperly denied.13
Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, U.S. 111 S. Ct. 968, 112 L. Ed. 2d 1054 (1991); In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983). “ ‘For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.’ ” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). The doctrine of collateral estoppel is “based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” In re Juvenile Appeal (83-DE), supra, 318.
*297There is no question that a determination of Manfredi’s intent was necessary to the judgment of the criminal court and that the jury verdict represents a decision on the issue of intent. The plaintiff’s claim, therefore, raises three significant questions: (a) Is the issue as to which collateral estoppel is sought to be invoked— Manfredi’s intent—identical in both the prior criminal action and this action? (b) May a litigant who was not a party to a prior action invoke a verdict arrived at after trial to estop collaterally one who was a party or in privity with a party to the prior action? (c) When the victim of an insured defendant derives her rights to collect insurance proceeds directly from the rights of the insured defendant, are the two in privity for purposes of collateral estoppel? Because we answer all three questions in the affirmative, we conclude that the plaintiff’s motion for summary judgment should have been granted.
A
In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding. “To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding.” State v. Hope, supra, 584.
In the declaratory judgment action before us, the plaintiff asserts that it is not responsible for payment of the wrongful death judgment rendered against Manfredi because the issue of his intent was previously decided in the plaintiff’s favor. The plaintiff contends that because the language of the insurance policies issued to Manfredi excludes coverage for injuries intentionally caused by the insured, and because a criminal jury *298found beyond a reasonable doubt that he intentionally killed his wife, collateral estoppel bars relitigation of that issue.
In order for collateral estoppel to be applicable, the meaning of the term “intent,” as that word is used in the insurance policy, must necessarily be included in the definition of intent applied by the jury in Manfredi’s criminal trial. We conclude that, if Manfredi acted with the intent required by § 53a-55 (a) (2), it logically and necessarily follows that he also acted with the intent delineated by the insurance policies. Therefore, the issues are identical for collateral estoppel purposes.
At his criminal trial, Manfredi was charged with the crime of murder in violation of § 53a-54a (a). Because the jury found that he was suffering from an extreme emotional disturbance at the time of the offense, he was found guilty of the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (2). In order to have found Manfredi guilty under § 53a-55 (a) (2), the jury necessarily had to have found that he had the “intent to cause the death” of his wife. Further, the jury was instructed in conformance with General Statutes § 53a-3 (11)14 that in order to find that Manfredi intended to cause the death of his wife, it had to conclude beyond a reasonable doubt that he had the “conscious objective” to cause her death. The jury’s verdict of guilty represents its finding beyond a reasonable doubt that Manfredi caused the death of his wife at a time when it was his conscious objective to do so. While the jury found that he suffered from an extreme emotional disturbance, *299the presence of an extreme emotional disturbance “ ‘does not make the action any less intentional.’ ” State v. Elliot, 177 Conn. 1, 6, 411 A.2d 3 (1979), citing People v. Patterson, 39 N.Y.2d 288, 302, 347 N.E.2d 898, 383 N.Y.S.2d 573 (1976), aff'd, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).
Both of the insurance policies under which Manfredi was the insured provide that certain conduct will be excluded from coverage under the policies. In particular, the policies provide that injuries intentionally caused by the insured will not be covered by the plaintiff.15 When the terms of an insurance policy are clear and unambiguous, they will be given their plain and ordinary meaning. Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 249, 532 A.2d 1297 (1987). Because the plain and ordinary meaning of the word “intent” as used in the insurance policies is encompassed by the definition of intent set forth in §§ 53a-55 (a) (2) and 53a-3 (11), we conclude that the issue of intent, at the criminal trial and under the insurance policies, is identical. One could not logically find that the necessary criminal intent was present but that the intent that operates to exclude coverage under the insurance policy was not. Therefore, the issues are the same for collateral estoppel purposes.
B
We next consider the issue of mutuality of parties. The plaintiff asserts that the mutuality of parties rule should not prevent an insurer from collaterally estop*300ping an insured defendant from relitigating an issue that was decided at a prior trial. Jones, however, asserts that one who was not a party to the original proceeding may not later collaterally estop parties who were. We conclude, after a review of the authorities, that mutuality of parties is no longer required to invoke collateral estoppel.
Historically, the mutuality of parties rule meant that parties who were not actually adverse to one another in a prior proceeding could not assert collateral estoppel against one another in a subsequent action. For a time, the mutuality of parties rule was commonly accepted. See annot., 18 A.L.R.2d 1287. The United States Supreme Court once held that the rule of mutuality was binding in disputes arising under federal common law. Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 127, 32 S. Ct. 641, 56 L. Ed. 1009 (1912). In the first Restatement of Judgments, the American Law Institute, also, accepted the doctrine of mutuality. See Restatement, Judgments § 82.16 In accord with these authorities, this court, too, accepted the general proposition that mutuality of parties was a prerequisite to the successful invocation of collateral estoppel. Brockett v. Jensen, 154 Conn. 328, 338, 225 A.2d 190 (1966).
While once commonly accepted, the mutuality doctrine has now widely been abandoned. As Judge Tray-nor wrote in his landmark decision on this issue, “[n]o satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.” Bernhard *301v. Bank of America, 19 Cal. 2d 807, 812, 122 P.2d 892 (1942). Similarly, since Bigelow v. Old Dominion Copper Co., supra, the United States Supreme Court has unequivocally rejected the mutuality rule for purposes of the federal common law. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-33, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971). Further reflecting this trend, the American Law Institute’s second Restatement of Judgments has also eliminated the requirement of mutuality. 2 Restatement (Second), Judgments § 85.17
Although this court has not recently addressed this question,18 the Connecticut Appellate Court has rendered two decisions concerning the mutuality of parties rule. Griffin v. Parker, 22 Conn. App. 610, 579 A.2d 532 (1990), rev’d on other grounds, 219 Conn. 363, 593 A.2d 124 (1991); Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 546 A.2d 284 (1988), aff’d on other grounds, 211 Conn. 67, 557 A.2d 540 (1989). In both Griffin and Gartenhaus Cafe, the Appellate Court abandoned the mutuality rule. Numerous other jurisdictions have also eliminated the requirement, so that currently “while mutuality might not be a dead letter yet, it is mortally wounded.” T. Sawayga, “Use of Criminal Convictions in Subsequent Civil Proceedings: Statutory Collateral Estoppel Under Florida and Federal Law and the Intentional Act Exclusion Clause,” 40 U. Fla. L. *302Rev. 479, 488-90 n.55 (1988); see Merritt v. Quaker Oats Co., 538 F. Sup. 24 (S.D. Miss. 1981); Travelers Indemnity Co. v. Walburn, 378 F. Sup. 860, 862-65 (D.D.C. 1974); Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal. 2d 601, 604, 375 P.2d 439, 25 Cal. Rptr. 559 (1962), cert. denied, 372 U.S. 966, 83 S. Ct 1091, 10 L. Ed. 2d 130 (1963); Safeco Ins. Co. of America v. Yon, 118 Idaho 367, 371-72, 796 P.2d 1040 (1990); Aetna Life & Casualty Co. v. Johnson, 207 Mont. 409, 673 P.2d 1277 (1984); New Jersey Manufacturers Ins. Co. v. Brower, 161 N.J. Super. 293, 298, 391 A.2d 923 (1978); Read v. Sacco, 49 App. Div. 2d 471, 473, 375 N.Y.S.2d 371 (1975).
We agree with the Appellate Court and join those jurisdictions that have concluded that the mutuality of parties rule is unsound. To allow a party who has fully and fairly litigated an issue at a prior trial to avoid the force of a ruling against him simply because he later finds himself faced by a different opponent is inappropriate and unnecessary. First, the mutuality of parties rule systematically diminishes the stability of judgments. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, 328-29. The rule allows a single party to present antithetic claims on identical issues in separate actions and to obtain favorable decisions in both solely because his opponent has changed. Additionally, increasingly important notions of judicial economy are served by the abandonment of the doctrine of mutuality. Bruszewski v. United States, 181 F.2d 419, 421 (3d Cir.), cert. denied, 340 U.S. 865, 71 S. Ct. 87, 95 L. Ed. 632 (1950). In light of the scarcity of judicial time and resources, the repeated litigation of issues that have already been conclusively resolved by a court carries a considerable price tag in both money and time. Finally, we perceive no sound reason, and Jones has suggested none, to adhere to the doctrine of mutuality.
*303In this case, Manfredi was convicted of manslaughter in the first degree because a criminal court found him, beyond a reasonable doubt, to have intentionally caused the death of his wife. We will not allow that judgment to be questioned now, in a civil court, on the sole basis that the plaintiff was not a party to the original criminal action.19 While the case may arise where a lack of mutuality of parties would render the use of collateral estoppel patently unfair,20 that rule will no longer operate automatically to bar the use of collateral estoppel, and does not bar its application in this case.
C
The final issue raised by this appeal is whether Jones is in privity with Manfredi for purposes of collateral estoppel. Jones asserts that the decedent’s estate is not in privity with the interests of the insured, Manfredi. The plaintiff, on the other hand, contends that the two are in privity. We agree with the plaintiff.
Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party. State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987); P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983); State v. *304Wilson, 180 Conn. 481, 486, 429 A.2d 931 (1980). While it is commonly recognized that privity is difficult to define, the concept exists “to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding.” State v. Fritz, supra, 173. A “ ‘key consideration’ ” in determining the existence of privity is “ ‘the sharing of the same legal right by the parties allegedly in privity.’ ” Id.
Various jurisdictions have addressed the particular question of whether the victim of a criminal defendant is in privity with the defendant for purposes of collateral estoppel when that doctrine is sought to be applied to prevent recovery of insurance proceeds. Several of those jurisdictions have found privity to exist in these circumstances because the criminal defendant and his victim shared a legal right to recover damages. See Safeco Ins. Co. of America v. Yon, supra, 371-72; Aetna Life & Casualty Co. v. Johnson, supra; New Jersey Manufacturers Ins. Co. v. Brower, supra, 299; D'Arata v. New York Central Mutual Fire Ins. Co., 152 App. Div. 2d 1004, 543 N.Y.S.2d 810 (1989), aff'd, 76 N.Y.2d 659, 564 N.E.2d 634, 563 N.Y.S.2d 24 (1990); State Farm Fire & Casualty Co. v. Reuter, 299 Or. 155, 160-68, 700 P.2d 236 (1985); but see Clemmer v. Hartford Ins. Co., 22 Cal. 3d 865, 874-77, 587 P.2d 1098, 151 Cal. Rptr. 285 (1978) (concluding that the element of intent could not be effectively isolated); Massachusetts Property Ins. v. Norrington, 395 Mass. 751, 481 N.E.2d 1364 (1985); Rullo v. Rullo, 121 N.H. 299, 428 A.2d 1245 (1981); 2 Restatement (Second), Judgments § 85, illustration 10.
In Safeco Ins. Co. of America v. Yon, supra, 368, the heirs of a murder victim filed a wrongful death action against the insured killer, who was found by the jury in his criminal trial to have intentionally killed the vie*305tim. The defendant was insured by Safeco under a homeowner’s policy at the time of the killing. Thereafter, Safeco brought a declaratory judgment action against the heirs of the victim asserting that it had no duty to defend the insured because he had intentionally injured the victim and therefore was not covered by the insurance policy. Id., 368-69. The insurance company asserted collateral estoppel against the heirs to prevent relitigation of the issue of the killer’s intent, which was resolved against him at his criminal trial. The court stated: “We observe that any claims that [the victim’s] heirs have upon the coverage of the insurance policy stem from the contractual relationship between Safeco and [the criminal defendant]. Consequently, the wrongful-death claimants’ rights are only as good as the rights that [the criminal defendant] can assert against Safeco under the insurance contract. Therefore, in this limited context we conclude that this relationship is sufficient to constitute ‘privity’ for the purposes of collateral estoppel.” Id., 371. Similarly, in D’Arata v. New York Central Mutual Fire Ins. Co., supra, and State Farm Fire & Casualty Co. v. Reuter, supra, collateral estoppel was effectively asserted against parties who were “judgment creditors” of criminal defendants convicted after trial.
In the instant case, we conclude that the insured, Manfredi, and his wife’s estate shared an identical legal right in any potential proceeds derived from the contractual relationship between Manfredi and his insurance company. Section 38-175 provides Jones with her means of recovery against the insurance company. This statute specifically grants Jones a right, identical to the right of Manfredi, to recover on the insurance policy. As in D'Arata v. New York Central Mutual Fire Ins. Co., supra, and State Farm Fire & Casualty Co. v. Reuter, supra, Jones is a judgment creditor and subrogee of Manfredi. If Manfredi fails to qualify for *306coverage under the policy, Jones, too, would fail to qualify. In this sense, the rights of the estate are entirely dependent upon and limited by the rights of Manfredi. Therefore, we conclude that Jones and Manfredi share a legal interest and that they are in privity.
Whenever collateral estoppel is asserted, but especially in those cases where there is a lack of mutuality or the doctrine of privity is raised, the court must make certain that there was a full and fair opportunity to litigate. The requirement of full and fair litigation ensures fairness, which is a “crowning consideration” in collateral estoppel cases. Griffin v. Parker, supra, 22 Conn. App. 621; Read v. Sacco, supra. In determining whether there was full and fair litigation, the seriousness of the allegations or the criminal charge at the prior hearing is a factor to be considered. See Griffin v. Parker, supra, 22 Conn. App. 621 n.4; see also Merritt v. Quaker Oats Co., supra; Teitelbaum Furs, Inc. v. Dominion Ins. Co., supra; Aetna Life & Casualty Co. v. Johnson, supra. If the offense charged is of a minor or trivial nature, a defendant might not be sufficiently motivated to challenge the allegations made at trial. In such a case, it might be unfair to allow collateral estoppel to be asserted later against him. Similarly, if the nature of the hearing carries procedural limitations that would not be present at a later hearing, the party might not have a full and fair opportunity to litigate.21
In this case, Manfredi was accused of murdering his wife. If convicted, he faced a potential sentence of life imprisonment. Therefore, his motivation to prove a lack *307of intent was compelling. Further, Manfredi was provided with the full range of constitutional protections available to criminal defendants, including the right to a jury of twelve and the right to require the state to prove him guilty beyond a reasonable doubt.22 There can be no question that the issue of his intent was thoroughly litigated in a full adversary proceeding.
The judgment is reversed and the case is remanded with direction to render judgment in favor of the plaintiff.
In this opinion the other justices concurred.
General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
General Statutes § 53a-55 (a) (2) provides in pertinent part: “A person is guilty of manslaughter in the first degree when . . . (2) with intent to cause the death of another person, he causes the death of such person . . . under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection . . . .”
Practice Book § 390 provides in pertinent part: “The court will not render declaratory judgments upon the complaint of any person . . .
“(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure . . . .”
General Statutes (Rev. to 1989) § 38-175, the “direct action statute,” provides in part: “Upon the recovery of a final judgment against any per*290son, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”
“[Practice Book] Sec. 390—conditions
“The court will not render declaratory judgments upon the complaint of any person:
“(a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or
“(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
“(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure; or
“(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”
Because we agree with the plaintiffs contention that the state court was the most appropriate forum for litigation, we need not address the first and second procedural claims concerning the granting of Jones’ motion.
Practice Book § 380 provides: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of *292the motion and the supporting materials, unless the court otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”
Because we agree with the plaintiffs claims regarding collateral estoppel and privity, we do not address the procedural claims relating to compliance with Practice Book § 380.
Practice Book § 384 provides: “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
In granting Jones’ motion, the trial court stated, “Motion to strike granted.” (Emphasis added.)
Because neither of the parties has raised the issue, we do not address whether a motion to strike is the appropriate procedural mechanism for challenging the propriety of a declaratory judgment action after an answer has been filed by a defendant. See Practice Book §§ 112, 113.
While the plaintiff argues that summary judgment should be rendered against both Manfredi and Jones, we do not address the claim against Manfredi because a valid default judgment had already been rendered against him at the time that the plaintiffs motion for summary judgment was denied. “[TJhe entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to a judgment. Thus, the defaulted defendant is precluded from making any further defense to the action.” Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 161 n.1, 475 A.2d 310 (1984).
Although neither party raised the issue, we also note that the denial of a motion for summary judgment is not a final judgment and therefore is not ordinarily appealable. Practice Book § 4000; Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 181-82 n.3, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985). We have also held that, “absent exceptional circumstances, ‘a denial of a motion for summary judgment is not appealable where a full trial on the merits produces a verdict against the moving party.’ Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988).” Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991).
This case, however, did not go to trial and therefore the rationale for the rule adopted in Gurliacci, namely, that a decision based on more evidence should preclude review of a decision based on less evidence, is not applicable here. The situation presented in this case is similar to that of a defendant who cannot appeal from the denial of a motion to strike a complaint or from the granting of a motion to strike a special defense, but who can obtain review of such rulings in the context of an appeal from a subsequent final judgment. Breen v. Phelps, 186 Conn. 86, 90, 439 A.2d 1066 (1982). We conclude, therefore, that the denial of the plaintiff’s motion for summary judgment is reviewable.
While in her brief Jones has invoked her constitutional rights to trial by jury as provided in the constitution of Connecticut, article first, §§10 and 19, she conceded at oral argument that her constitutional claims would be unavailing if this court concluded that collateral estoppel was applicable.
General Statutes § 53a-3 (11) provides in pertinent part: “Except where different meanings are expressly specified, the following terms have the following meanings when used in this title . . .
“(11) A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .”
The homeowner’s policy states that “Medical Payments to Others do not apply to bodily injury or property damage . . . which is expected or intended by the insured.” (Emphasis added.) The excess indemnity policy similarly states, “This insurance does not apply ... to personal injury or property damage arising out of any act committed by or at the direction of the insured with intent to came personal injury or property damage . . . .” (Emphasis added.)
The Restatement of Judgments, § 82 provides in pertinent part: “The rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings as to their rights inter se upon matters which they did not litigate . . . between themselves.”
The Restatement (Second) of Judgments, § 85 provides in pertinent part: “With respect to issues determined in a criminal prosecution . . . (2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action ... (a) Against the defendant in the criminal prosecution . . . .”
In Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d 540 (1989), we stated that “in deciding this case we need not reach the issue of whether this jurisdiction continues to adhere to the doctrine of mutuality of estoppel . . . .”
Because this is a declaratory judgment action and the plaintiff insurer is invoking collateral estoppel to avoid providing coverage, the collateral estoppel invoked here is a hybrid form of offensive collateral estoppel. While courts have attempted to distinguish between offensive and defensive use of collateral estoppel; see, e.g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971); Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989); we do not recognize any formalistic delineation between the two in this case. As long as the party to the original suit has had a full and fair opportunity to litigate the issue and the issue was finally and necessarily decided by the court, the distinction between offensive and defensive collateral estoppel is inconsequential. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); Read v. Sacco, 49 App. Div. 2d 471, 473, 375 N.Y.S.2d 371 (1975).
See Part II C, infra, of this opinion.
Jones asserts that the estate of the victim had no opportunity to become a party to the murder prosecution against Manfredi. While opportunity to join litigation is a factor to consider when determining privity, it is not dis-positive. If that factor were controlling, one could never be in privity with parties to a criminal prosecution because that litigation is obviously not subject to the civil rules of joinder and intervention.
We need not decide in this case whether a judgment rendered on the basis of a criminal defendant’s guilty plea could satisfy the requirement of full and fair litigation for the purposes of collateral estoppel. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841949/ | Callahan, J.
The plaintiff, John N. Adriani, appeals from the judgment of the trial court dismissing his appeal from a decision of the named defendant, the commission on human rights and opportunities (commission). The commission had dismissed the plaintiffs employment discrimination complaint without a hearing on the basis of its finding that there was no reasonable cause to believe that a discriminatory practice had been committed by the plaintiffs employer. Because we conclude that the trial court improperly denied the plaintiff the opportunity to present evidence extrinsic to the record, we remand the case for further proceedings.
On January 20,1988, the plaintiff resigned his position as a buyer for the defendant, the United Illuminating Company (UI), after he had been given the choice of either resigning or being fired. The plaintiff had been employed by UI since September, 1969. On April 14, 1988, the plaintiff filed a complaint with the commission alleging that UI had violated his rights under General Statutes § 46a-60 (a) (1)1 by discriminating against *310him on the basis of his physical disability, hypertension. The plaintiff specifically asserted that, after learning that he suffered from hypertension, UI did not make a reasonable effort to accommodate his condition by transferring him to another available position within the company. Pursuant to General Statutes § 46a-83,2 the investigator for the commission conducted an extensive inquiry concerning the matter and recommended that the plaintiffs complaint be dismissed for lack of reasonable cause. On October 26,1989, the commission dismissed the complaint. The plaintiff filed a request for reconsideration of the dismissal of his complaint, and the commission subsequently denied the request.
On February 2,1990, the plaintiff, pursuant to General Statutes § 46a-94a, filed an appeal in the Superior Court from the commission’s dismissal of his complaint and its denial of his request for reconsideration.3 At the first hearing on this matter, the trial court denied the plaintiffs motion to supplement the record by introducing extrinsic evidence in order to prove alleged procedural irregularities in the commission’s disposition *311of his case. The trial court subsequently dismissed the plaintiffs appeal, concluding that there was substantial evidence in the record to support the investigator’s finding, adopted by the commission, that there was no reasonable cause to believe that UI had committed a discriminatory act in violation of § 46a-60 (a) (l).4 The plaintiff appealed to the Appellate Court, and we transferred the matter to this court pursuant to Practice Book § 4023.
On appeal, the plaintiff claims that the trial court improperly: (1) concluded that there was substantial evidence to support the commission’s finding that there was no reasonable cause for believing that UI had discriminated against the plaintiff on the basis of a physical disability; and (2) refused to allow the introduction of evidence outside the record to support the plaintiff’s claim of procedural irregularities at the agency level.
I
Before addressing the plaintiff’s claim that the trial court should have reversed the commission’s finding of no reasonable cause, it is necessary that we review the facts pertinent to this issue. In 1980, the plaintiff was promoted to a position as a buyer in the purchasing department at UI. The plaintiff’s performance evaluation for the latter half of 1985 rated him as good overall, but noted some reservations about the plaintiff’s attitude toward his job. His 1986 year end evaluation noted significant problems in the plaintiff’s performance, which was rated as marginal overall. The report *312did note that the plaintiff’s attitude toward his work had improved toward the end of the year, but it also stated that termination was possible if the plaintiff did not continue this improved performance. The 1987 year end evaluation, which was given to the plaintiff by his supervisor, James Nesdale, on December 14,1987, outlined continuing problems with the plaintiff’s performance, and stated that “[i]t is now totally up to [the plaintiff] to effect an immediate and lasting correction of all deficiencies. Failure to do so will result in a recommendation being made for his termination.” Nesdale also claimed that, at the time he gave the plaintiff this evaluation, he also gave verbal notice that he would be fired unless his performance improved within the next thirty days. The plaintiff denies that Nesdale ever made such a statement.5
The plaintiff took a medical leave of absence from his job from December 14,1987, to December 29,1987, because of high blood pressure. That same month, the plaintiff, on the advice of Nesdale, sought professional counseling with UI’s employee assistance program, which in turn referred him to John Dolan, chairman of the psychiatry department at St. Vincent’s Medical Center. On or about January 7,1988, William Manniel, manager of training and development for UI, received a letter from Dolan concerning the plaintiff. The letter stated that, largely as a result of a personality clash between the plaintiff and his supervisor, the plaintiff suffered from hypertension and that this condition had become more serious in recent months. Dolan “strongly” recommended that the plaintiff be transferred to another job within UI.
*313The plaintiff claims that he was told by Manniel shortly thereafter that, because of Dolan’s letter, UI considered him a “medical liability” and that this condition could result in his termination. Manniel denied that he made any such statement. He claimed, rather, that he told the plaintiff that efforts were being made to find him another position within the company, but that his past performance significantly hurt his chances for obtaining a transfer. Manniel contended that he told the plaintiff that he would have to be fired if a transfer was not possible because he could not remain in his present position as a buyer. The plaintiff also claims that in early January, 1988, Nesdale “brushed off” his inquiry about an opening in another department and told him that there now was no chance that he would ever be transferred. On January 20, 1988, the plaintiff resigned after being told that he would be terminated if he did not do so. The parties dispute whether, after receiving Dolan’s letter, UI made reasonable efforts to accommodate the plaintiff by trying to transfer him to another position in the company. Specifically, the availability of certain positions, as well as the plaintiff’s qualifications for such positions, are contested.
General Statutes (Rev. to 1987) § 46a-83 (a) provides that “[a]fter the filing of any discriminatory practice complaint, the chairman of the commission shall refer the same to a commissioner or investigator to investigate and if the commissioner or investigator determines after the investigation that there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, he shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.”6 If *314the commissioner or investigator finds that there is “reasonable cause” to believe that a discriminatory act has been committed and the complaint is not settled through the procedures outlined in § 46a-83, the complainant is entitled to a hearing on the matter. General Statutes § 46a-84. The plaintiff claims that UI discriminated against him on the basis of his hypertension by refusing to consider transferring him to another department after receiving the letter from Dolan.7 UI asserts, to the contrary, that the plaintiff was fired because no positions were available outside his department and it concluded that it could not allow the plaintiff to return to his job as a buyer. UI also contends that the timing of its decision was motivated by its having decided to terminate the plaintiff by the end of January, in any event, due to performance problems.
We first note the limited scope of review to be exercised by the trial court in reviewing a determination that there is no reasonable cause to believe that a discriminatory practice has been committed. “Judicial *315review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990); Board of Education v. Commission on Human Rights & Opportunities, 176 Conn. 533, 538, 409 A.2d 1013 (1979). The substantial evidence standard is satisfied if the record provides a “ 'substantial basis of fact from which the fact in issue can be reasonably inferred. . . .’ ” Lawrence v. Kozlowski, 171 Conn. 705, 713, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977).
Before we can apply the substantial evidence test, however, we must resolve the parties’ conflicting contentions about the nature of the reasonable cause determination. The plaintiff contends that in making this determination, the investigator, and the commission when reviewing the investigator’s recommendation, may consider all of the evidence gathered, but the focus of the inquiry should be on the complainant’s representations concerning the alleged discrimination. Moreover, the plaintiff asserts that the commission is not entitled to draw inferences or make credibility determinations that would bear upon disputed material facts. The defendants, however, contend that the commission is allowed not only to consider all the evidence gathered, including that unfavorable to the complainant, but also to make findings concerning material issues of fact by drawing inferences and weighing the credibility of witnesses. We agree with the defendants.
In Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988), the Appellate Court addressed this specific issue. That court rejected *316the claimant’s contention that the reasonable cause standard set forth in § 46a-83 is akin to the concept of a “prima facie case,” which applies to the complainant’s initial burden of production at an adjudicative hearing. Id., 579. The court concluded that “the term ‘reasonable cause’ as used in the statute is synonymous with ‘probable cause.’ Cf. State v. Wilson, 153 Conn. 39, 41, 212 A.2d 75 (1965) (‘reasonable grounds to believe,’ as used in General Statutes § 6-49 [now § 54-lf (b)] is to be equated with ‘probable cause.’) Probable cause ‘ “is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” ’ (Emphasisadded.) Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977), quoting Wall v. Toomey, 52 Conn. 35, 36 (1884). ‘Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.’ Three S Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). It deals with probabilities, and the ‘application of the factual and practical considerations of everyday life on which reasonable and prudent men act.’ State v. Wilson, supra.”8 Ierardi v. Commission on Human Rights & Opportunities, supra, 580-81.
We conclude, as did the Appellate Court in Ierardi, that the reasonable cause standard requires the commission to consider all reliable probative evidence, *317including evidence unfavorable to the complainant’s claim. In support of this conclusion, the Ierardi court noted that one of the purposes of the reasonable cause determination is to protect respondents from having to go through the hearing process in cases where the complaint is baseless. Id., 580, citing Waterbary v. Commission on Human Rights & Opportunities, 160 Conn. 226, 235, 278 A.2d 771 (1971). In addition to promoting one of the purposes of the reasonable cause finding, this conclusion is also consistent with the principle that we must “make every effort to construe a statutory scheme as a consistent whole.” Powers v. Ulichny, 185 Conn. 145, 149, 440 A.2d 885 (1981); 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 265, 541 A.2d 478 (1988). The provisions of § 46a-83 (c)9 allow the commission to issue subpoenas for the production of all relevant evidence and, therefore, contemplate that the commission would consider any reliable information pertinent to a complaint, whether that evidence supports the complaint or casts doubt upon it. Ierardi v. Commission on Human Rights & Opportunities, supra, 581.
We conclude that a necessary corollary to allowing the commission to consider all relevant evidence gathered during the investigation is that in making the reasonable cause determination, the investigator, and the commission when reviewing the investigator’s recommendation, are entitled to make findings on disputed issues of material fact by weighing the credibility of the witnesses and drawing inferences.10
*318The facts of the present case provide a clear illustration of why such a result is necessary “to guard against subjecting a respondent to a hearing upon every complaint which might be made to the commission, however unfounded.” Waterbury v. Commission on Human Rights & Opportunities, supra. In his complaint, the plaintiff asserted that Manniel told him that as a result of Dolan’s letter, UI considered him a “medical liability” and that this condition could result in his being terminated. The issue of whether this statement actually was made is a material fact in this case, which, under the plaintiff’s formulation of the reasonable cause determination, could not be decided by an investigator. The inevitable result of the plaintiff’s position is that any claimant can guarantee that he obtains a hearing simply by alleging in his complaint the existence of direct or overt evidence of discrimination. Such a result would encourage unfounded allegations of overt discrimination, thereby requiring a hearing and effectively rendering the reasonable cause determination a nullity.
Even in the absence of claims of overt discrimination, only in the rare case would there be no issues of material fact concerning a discrimination claim. In the present case, for example, the availability, at the time of the plaintiff’s termination, of one of the positions to which he sought to be transferred was a disputed issue of material fact. Under the plaintiff’s view, the investigator would not be allowed to make a finding on that issue. In light of the fact that § 46a-83 contemplates that an investigator will examine all the relevant evidence and the likelihood that material issues of fact will remain after an investigation, we conclude that the investigator must be entitled to resolve such issues if the reasonable cause determination is to serve any practical purpose.
*319We note, however, that the power of the commission, through its investigators, to make findings of material fact as part of the reasonable cause determination, and the trial court’s obligation to review such findings under the substantial evidence standard, is conditional upon the commission having conducted a thorough investigation of the claim and having relied only upon reliable, probative evidence in making those findings. In undertaking its investigation, the commission is obligated to pursue evidence corroborating, as well as contradicting, the plaintiff’s complaint. Such an inquiry was made in this case, where the investigator examined forty-seven items of documentary evidence and interviewed thirteen people, including the plaintiff, his attorneys, the plaintiff’s supervisor and other UI employees, and where the plaintiff failed to name any witness to corroborate his complaint or to demonstrate that the evidence upon which the commission relied was not trustworthy.11
Finally, we emphasize that the standards of proof applicable to the reasonable cause determination are not the same as those that apply at the hearing stage. Reasonable cause, and the analogous probable cause standard, require a lesser showing than the preponderance of the evidence standard; Ierardi v. Commission on Human Rights & Opportunities, supra; and therefore, the nature of the reasonable cause determination is entirely distinct from a ruling on the merits made after a hearing.
*320The basis for the plaintiff’s discrimination complaint was his contention that, after receiving Dolan’s letter, UI ceased its ongoing efforts to transfer him and thereafter refused even to consider the possibility of a transfer.12 The plaintiff’s complaint and the affidavit filed *321along with his request for reconsideration indicate that he intended to present two different types of proof in support of this claim: (1) direct evidence of discrimination, namely, the statement allegedly made by Manniel that, based on Dolan’s letter, the plaintiff was considered a “medical liability”;13 and (2) evidence of the availability of jobs within UI for which the plaintiff was qualified at the time he was terminated.14
*322The investigator for the commission found that there was “no cause” for crediting the plaintiffs allegations. In addition, he found that UI intended to terminate the plaintiff as a buyer at the end of January on the basis of his poor performance and was not using his hypertension as a pretext for firing him. The commission *323accepted the recommendation of the investigator, thereby adopting his findings, and dismissed the complaint. Finally, the commission accepted the recommendation of its staff attorney to deny the plaintiffs request for reconsideration. The staff attorney’s memorandum clearly indicates that the commission also resolved all issues of material fact in UFs favor.15 The issue, therefore, is whether the investigator’s determination that there was no reasonable cause to believe that UI had commited a discriminatory practice, with which the commission agreed, is reasonable in light of the substantial evidence in the record.
The evidence concerning the statement allegedly made by Manniel that UI considered the plaintiff a “medical liability” necessitated a credibility determination between Manniel and the plaintiff, and the investigator and the commission found that Manniel was the more credible party. As we noted above, it is necessary that the commission be allowed to make such credibility determinations if the reasonable cause determination is to serve its intended purpose of screening claims.16
Before reviewing the evidence concerning UI’s attempts to transfer the plaintiff, we must consider the plaintiff’s performance record because it is relevant to UI’s *324claim that his record was an obstacle to a transfer. This evidence is also relevant because it discounts the inference suggested by the plaintiff that the proximity in time between the receipt of Dolan’s letter and the plaintiff’s termination should necessarily be construed as evidence of discriminatory intent on the part of UI. In addition to the evidence of the plaintiff’s poor performance noted above, the record indicates that the plaintiff had considerable difficulty operating UI’s automated purchasing system. Despite the fact that he had received extra training on the use of this system, the plaintiff showed little improvement and the plaintiff’s supervisor stated that assistant buyers and a new buyer knew more about operating the system than the plaintiff did. In 1986, the plaintiff’s workload was temporarily reduced by approximately one third, yet his problems continued. During October and November, 1987, the plaintiff’s error rate in the processing of requisitions was more than twice that of the buyer with the next highest error rate and more than three times the average rate of errors for the other buyers, despite the fact that the plaintiff processed the fewest number of requisitions. The performance evaluations also reveal that the plaintiff required more than the normal amount of supervision.17
The plaintiff’s employment history supports UI’s contention that his poor record was a major roadblock to its attempts to find another position for him. From 1985 through the time of the plaintiff’s termination, there was an ongoing attempt to accommodate the plaintiff’s requests to transfer to another job. In addition to the performance problems noted above, UI officials also cited attitude problems as reasons why the plaintiff was difficult to transfer. The existence of problems with the *325plaintiff’s attitude toward his work was corroborated by the periodic evaluation reports. Finally, with respect to UI’s conduct after it learned that the plaintiff suffered from hypertension, four UI officials, namely, the plaintiff’s supervisor, the employment manager, the director of purchasing and the manager of training and development, indicated that one last unsuccessful attempt was made to find a position within UI after Dolan’s letter was received.
We do not find it necessary to review in detail the evidence concerning the specific positions that the plaintiff claims were available at the time of his termination. Suffice it to say that the record provides substantial evidence to support the commission’s determination that either the plaintiff was not qualified for the positions or that the positions were not in fact available at that time. Finally, we note that the record also includes evidence that between 1985 and 1989, UI accommodated numerous employees with disabilities that included back problems, hand disabilities, anxiety and stress. We conclude that the commission’s determination that there was no reasonable cause to believe that UI committed a discriminatory practice was reasonable in light of the substantial evidence in the record.
II
The plaintiff next claims that the trial court improperly denied his motion to supplement the agency record by introducing evidence of alleged procedural irregularities that undermined the commission’s determination of no reasonable cause. We conclude that the trial court’s denial of this motion was improper.
General Statutes (Rev. to 1987) § 4-183 (f) provides that an administrative appeal “shall be confined to the record” but that “[i]n cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court.” “An appeal *326from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when that record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear the evidence.” Tarasovic v. Zoning Commission, 147 Conn. 65, 69, 157 A.2d 103 (1959); Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 530, 560 A.2d 403 (1989). The determination of whether the trial court improperly denied the plaintiff’s motion to supplement the record is made on the basis of the abuse of discretion standard. Leib v Board of Examiners for Nursing, 177 Conn. 78, 93, 411 A.2d 42 (1979); Ierardi v. Commission on Human Rights & Opportunities, supra, 585.
In his complaint, the plaintiff alleged that the commission failed to perform its statutory duty to determine whether reasonable cause existed. The plaintiff also claimed that the commission’s procedures favored the dismissal of cases without regard to merit and prevented the staff of the commission from making fair reasonable cause determinations. The complaint stated that these allegations of procedural irregularities would require the presentation of proof not contained in the agency record.
At the first trial court hearing, the plaintiff sought to introduce the testimony of James Noonan, the commission’s investigator on this case; Philip Murphy, commission counsel; and Leslie Brett, chairperson of the commission. The plaintiff contended that the testimony of these three witnesses would establish that: (1) neither Noonan nor the commission applied the “reasonable cause” standard in deciding whether to dismiss the plaintiff’s complaint; and (2) the commission had a quota system whose goal was to close a certain number of cases each month, and, as a result of this system, Noonan was pressured to reach a “no cause” *327finding in this case.18 The trial court denied the motion to supplement the record on the grounds that: (1) the record was sufficient for the issues that the court had to address; and (2) the plaintiffs motion to supplement the agency record was untimely and failed to give the defendant proper notice.
The plaintiff aptly notes that, assuming his allegations of procedural irregularities are correct, the first rationale proffered by the trial court for its decision would be appropriate only if the court conducted a de novo review of the evidence underlying the commission’s determination of no reasonable cause. When, however, the trial court applies the substantial evidence test in reviewing the commission’s decision to dismiss the complaint, as it did in this case, it is inappropriate to refuse extrinsic evidence of alleged procedural irregularities on the ground that the existing record is adequate to conduct the review. The substantial evidence test assumes that an agency’s decision is not tainted by procedural irregularities that implicate the validity of the decision itself. Where there is a question, as there is in this case, as to whether an agency favored a certain outcome or applied an incorrect standard in reaching its decision, the court must determine whether the alleged procedural irregularities did in fact occur before it can utilize the substantial evidence test.
*328With respect to the second rationale offered by the trial court for its refusal to allow the agency record to be supplemented, we first note that the plaintiff’s complaint initiating his appeal clearly stated he sought to supplement the record in order to prove his allegations of procedural irregularities.19 Moreover, neither the Practice Book nor the General Statutes requires a party to file a written motion to supplement the agency record. Consequently, because of the potentially crucial impact of the plaintiff’s claims of procedural irregularities on the propriety of the commission’s decision, we conclude that the trial court abused its discretion in denying the plaintiff the opportunity to present evidence to supplement the agency record.20
*329It is necessary, therefore, that the trial court provide the plaintiff with that opportunity and then determine whether the commission’s decision was tainted by procedural irregularities. If the trial court agrees either with the plaintiff’s contention that an improper standard was used or with his assertion that Noonan was pressured to reach a finding of no reasonable cause, then the trial court must remand the case to the commission for a new determination of reasonable cause using the proper standard.21 If, however, the trial court determines that the plaintiff’s claims of procedural irregularities are not supported by the evidence presented, then no further proceedings are necessary.
The case is remanded for further proceedings in accordance with this opinion.
In this opinion Peters, C. J., Covello and F. X. Hennessy, Js., concurred.
General Statutes (Rev. to 1987) § 46a-60 (a) (1) provides: “It shall be a discriminatory practice in violation of this section:
“(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation or physical disability, including, but not limited to, blindness.”
“[General Statutes (Rev. to 1987)] Sec. 46a-83. complaint: investigation; conciliation; DISCLOSURE; SUBPOENA, (a) After the filing of any discriminatory practice complaint, the chairman of the commission shall refer the same to a commissioner or investigator to investigate and if the commissioner or investigator determines after the investigation that there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, he shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.
“(b) No commissioner or investigator may disclose what has occurred in the course of such endeavors provided the commission may publish the facts in the case and any complaint which has been dismissed and the terms of conciliation when a complaint has been adjusted.
“(c) In the investigation of any complaint filed pursuant to this chapter, the commission may issue subpoenas requiring the production of records and other documents relating to the complaint under investigation.”
In his appeal to the Superior Court, the plaintiff named as defendants UI, the commission and Vincent Festa, the chairperson of the commission.
The trial court also rejected the plaintiff’s contention that his rights to procedural due process under the federal constitution were violated because the commission dismissed his complaint without allowing a hearing, sworn testimony, confrontation of witnesses or the opportunity to examine documents. Although the plaintiff included this issue in the preliminary statement of issues on appeal, he did not brief it and it is therefore deemed abandoned. State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).
There is no entry in the 1987 performance evaluation indicating that the plaintiff was given such a deadline. William Manniel, UI’s manager of training and development, told the investigator, however, that the plaintiff had told him that he had received his final disciplinary warning and faced the prospect of termination.
General Statutes § 46a-83 was amended by Public Acts 1989, No. 89-332. Among other things, that act specifically defined the “reasonable cause” standard. The amended version of the statute, however, does not apply to complaints pending on January 1,1990, and is therefore not applicable to the present case. See Public Acts 1989, No. 89-332, § 6.
The commission contends that hypertension is not a “physical disability” as that term is used in General Statutes § 46a-60 (a) (1). General Statutes (Rev. to 1987) § 46a-51 (15) defines “physically disabled” as referring “to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes as from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device.”
Dolan’s letter stated that the plaintiff’s hypertension had become a serious problem in recent months. Hypertension is defined as “abnormally high arterial blood pressure.” Webster’s Third International Dictionary. In addition, the plaintiff had taken a medical leave of absence from work during the last two weeks of 1987 as a result of high blood pressure. On the basis of this record, we conclude that the plaintiff was “physically disabled” within the meaning of § 46a-51 (15).
Our conclusion is also supported by the fact that this claim was not raised during any of the proceedings at the agency level. Therefore, the plaintiff was not provided with an opportunity to provide additional medical documentation for inclusion in the agency record. Under these circumstances, it would be unfair to foreclose the plaintiff’s claim on this basis.
We note, however, that this formulation of the reasonable cause standard affects only those claims pending on January 1,1990. Claims filed after that date are controlled by the statutory definition of reasonable cause provided in the amended version of General Statutes § 46a-83. See footnote 6, supra. We express no opinion on whether the amended statute was intended to articulate the standard articulated in Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 580-81, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988).
See footnote 2, supra.
We note that the Appellate Court suggested that it would reach a contrary conclusion. See Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 581 n.5, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988). For the reasons set forth below, we disagree with that conclusion.
We reject the plaintiff’s argument that the use of some hearsay statements by the investigator in making his recommendation that the complaint should be dismissed mandates that we exercise de novo review of the finding of no reasonable cause. It is well established that, even at the hearing stage of adjudicative proceedings by agencies, hearsay is admissible if it is reliable and probative. Jutkowitz v. Department of Health Services, 220 Conn. 86, 108, 596 A.2d 374 (1991). We conclude that the hearsay statements at issue here, which involved statements by UI employees about what they had been told by other UI employees, were sufficiently reliable to be considered by the investigator. Moreover, we note that only a portion of the evidence upon which the investigator relied constituted hearsay.
The plaintiff asserts that the analysis contained in the investigator’s report and the staff attorney’s memorandum recommending the denial of the motion for reconsideration indicate that the commission misunderstood the nature of his claim. Specifically, he asserts that the portions of those documents that discuss whether his removal from his position as a buyer was based on his past performance are irrelevant because his claim was not that UI discriminated against him by terminating him as a buyer, but rather, that UI failed in its obligation to make a reasonable effort to accommodate his physical condition by transferring him.
We first note that the plaintiffs claim that UI did not “reasonably accommodate” his disability appears to be based on an analogy to the protection afforded by the federal Rehabilitation Act of 1973, 29 U.S.C. § 793 et seq. and 41 C.F.R. § 60-741.6 (d). We do not address whether provisions of General Statutes § 46a-60 (a) (1) forbidding an employer from discriminating on the basis of a physical handicap are coextensive with the provisions of the federal statute, especially the “reasonable accommodation” duty under that statute. Under federal law, “[ejmployers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies.” School Board of Nassau County v. Arline, 480 U.S. 273, 289 n.19, 107 S. Ct. 1123, 94 L. Ed. 2d 307, reh. denied, 481 U.S. 1024,107 S. Ct. 1913, 95 L. Ed. 2d 519 (1987); cf. Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987) (“an employer is not required to find alternative employment for an employee who cannot perform his job unless the employer normally provides such alternative employment under its existing policies”).
In the present case, the plaintiff claims that UI, upon receiving Dolan’s letter, stopped its ongoing effort to place him in other departments and thereafter refused to consider transferring him to any available positions because of his hypertension. We conclude that such conduct, if proven, would constitute a discriminatory act forbidden by § 46a-60 (a) (1). We reject, however, the plaintiff’s claim that, even assuming that he was slated for termination at the end of January of 1988 and that there were no available jobs for which he was qualified within UI at the time that Dolan’s letter was received, this case would still constitute a “mixed motives” case in which the employer’s action was motivated by both proper and improper factors. See Price Waterhouse v. Hopkins, 490 U.S. 228, 247, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion). This conclusion is con*321sistent with the fact that the United States Department of Labor conducted an investigation of this case and concluded that the plaintiffs rights under 29 U.S.C. § 793 had not been violated.
With respect to the plaintiffs assertion that both the investigator’s report and the memorandum of the staff attorney for the commission misconstrued the nature of his claim, we note that the complaint did not clearly state the basis of the claim and therefore the commission’s conclusion that he was alleging that his removal as a buyer was made on discriminatory grounds was understandable. In any event, the commission’s consideration of the evidence of the plaintiffs performance record is still pertinent because this evidence corroborated UI’s claim that its repeated attempts to accommodate the plaintiff’s request for a transfer were stymied by the fact that managers in other departments were not interested in the plaintiff because of his performance record.
The plaintiff also contends that Nesdale made a statement providing direct evidence of discrimination. Specifically, the plaintiff claimed that in January of 1988 Nesdale had “brushed [him] off” when he inquired about a job opening and told him there now was no chance that he would ever get a transfer to another job within the company. We disagree with the plaintiff’s characterization of this statement as “direct evidence” of discrimination. First, the plaintiff’s affidavit, although not clear on the timing of this alleged statement, suggests that it was made before the receipt of Dolan’s letter. Moreover, even if it was made after the letter was received, the statement could also reasonably be construed to mean that the plaintiff’s poor performance record made transfer impossible, and therefore it is not inconsistent with the commission’s determination of no reasonable cause.
We note that, had the commission found that the plaintiff was entitled to a hearing, the hearing officer would have had to determine which of two different theories to apply in weighing the proof in this case: (1) the direct evidence, or mixed motives theory; see Price Waterhouse v. Hopkins, 490 U.S. 228, 246-48, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion), and 276-77 (O’Connor, J., concurring); Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 202-203, 596 A.2d 396 (1991); or (2) the disparate treatment theory. See Texas Department of Community Affairs *322v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
In Price Waterhouse v. Hopkins, supra, 275-76 (O’Connor, J., concurring), the court held that, under the direct evidence theory, once the plaintiff has shown by direct evidence that an impermissible motive was a substantial factor in an employment decision, the defendant must prove by a preponderance of the evidence that the same decision would have been made even if the improper motive did not exist. In order to establish a prima facie case under the disparate treatment theory, the plaintiff must prove that: (1) he is a member of a protected class under the statute; (2) he applied for and was qualified for a position for which the employer was seeking applicants; (3) he was denied the position despite being qualified; and (4) the employer continued to seek applicants for the position after denying the plaintiff’s application. See McDonnell Douglas Corporation v. Green, supra, 802. The burden then shifts to the employer to provide a legitimate nondiscriminatory reason for its action. Id. If the employer does so, the plaintiff then has the opportunity to show that the reason provided by the employer is pretextual. Id., 804.
We note, however, that this choice of theories is irrelevant to the reasonable cause determination. If the commission determines, on the basis of either direct or circumstantial evidence, that there is reasonable cause to believe that a discriminatory motive has played a role in an employment decision, the complainant is entitled to a hearing. See Price Waterhouse v. Hopkins, supra, 249-50 (plurality opinion). Accordingly, it would not be proper for the commission, having made such a determination, to dismiss a complaint on the ground that the employer has sufficient proof to demonstrate that the same action would have been taken in the absence of the discriminatory motive. This adjudicative function must be left to the hearing officer.
The memorandum of the commission’s staff attorney recommending the denial of the plaintiff’s request for reconsideration does include a section that engages in this type of improper analysis. That portion of the memorandum, however, was mere dictum because the commission, having adopted the investigator’s findings, resolved all questions of material fact in favor of UI. Because'this improper analysis was not necessary to the commission’s determination of no reasonable cause, it does not provide grounds for reversal.
As noted in footnote 12, supra, the staff attorney misconstrued the issue in this case by focusing on whether the plaintiff was qualified to continue to serve as a buyer, rather than whether he was qualified for any available positions within UI at the time Dolan’s letter was received. The memorandum makes clear, however, that the commission’s decision to dismiss the complaint was made on the basis of its agreement with the findings of the investigator, and therefore it is those findings we shall review.
This same principle governs the commission’s finding that the plaintiff had been given a verbal warning by Nesdale in the middle of December, 1988, that he would be terminated if his performance did not improve within the next thirty days. The commission credited the statements of Manniel and Nesdale over that of the plaintiff, who claimed that no such statement was ever made.
In his affidavit, the plaintiff contended that his supervisor’s criticism of his performance, as reflected in the evaluations, was unjustified and unfair.
In his offer of proof, the plaintiff stated that he would prove that Noonan used a “litigation worthy” standard, not the “reasonable cause” standard, that Noonan did not understand the reasonable cause standard and that Noonan was under pressure to reach findings of no cause. The plaintiff also indicated that he intended to question Murphy about testimony Murphy gave before the Governor’s Task Force on the Commission on Human Rights and Opportunities concerning the reasonable cause standard and the “litigation worthy” standard, or, alternatively, to introduce a copy of the report of the Governor’s Task Force on the Commission on Human Rights and Opportunities. Finally, the plaintiff sought to have Brett testily as to why General Statutes § 46a-83 was amended and why she was named as the new chairperson.
We do not address, however, whether notice of the intention to supplement the record in order to introduce evidence of procedural deficiencies must always be provided at some point prior to the initial hearing, whether in the complaint or another pleading. See Billings v. Commission on Human Rights & Opportunities, 18 Conn. App. 241, 244, 557 A.2d 147 (1989).
The commission challenged the introduction of this testimony on two other grounds. First, the commission claimed that, contrary to the plaintiff’s assertions, Noonan had never been served with a subpoena. This factual issue, however, was never resolved, nor did the trial court rely on this ground in denying the plaintiffs request to supplement the record. We therefore do not address it.
The commission also argued that neither Murphy nor Brett was involved in this case in any manner and that their testimony and the report of the Governor’s Task Force on the Commission on Human Rights and Opportunities were irrelevant to the issues in this case. We do not address this argument, however, because the record is not sufficiently clear on this point and it is not material to our disposition of this case. At a minimum, Noonan should have been allowed to testify because he was the investigator who made the preliminary finding of no reasonable cause. At the hearing on this matter, the trial court will have to rule on the relevance of the additional evidence proffered by the plaintiff.
Finally, we reject the commission’s assertion that the testimony of Noonan was irrelevant because under § 31-125-11 of the Regulations of Connecticut State Agencies, only the chairperson of the commission, not an investigator, can dismiss a complaint. We find this argument a bit disingenuous. In addition to the fact that the commission adopted Noonan’s findings in toto, it would seem likely that if Noonan was under pressure to reach findings of no cause, then that pressure flowed from the hierarchy of the commission.
The form of our remand is governed by the principle that when a trial court concludes that an administrative agency has made invalid or insufficient findings, the court must remand the case to the agency for further proceedings if the evidence does not support only one conclusion as a matter of law. Persico v. Maher, 191 Conn. 384, 410, 465 A.2d 308 (1983); Denby v. Commissioner, 6 Conn. App. 47, 57-58, 502 A.2d 954 (1986). Because the plaintiff’s claims implicate the validity of the commission’s finding of no reasonable cause, and because the credibility determinations underlying that finding may have been affected by the alleged irregularities, we conclude that the case must be remanded if the trial court finds that the commission’s decision was tainted by procedural deficiencies. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841951/ | Covello, J.
This is an application for relief from the allegedly wrongful assessment of real property brought pursuant to General Statutes § 12-119.1 The issues presented are: (1) Can routine disputes as to the value of real property serve as the basis for an application for relief pursuant to § 12-119; (2) Does the adoption of the “cost of reproduction” method of evaluation of real property when unsupported by underlying data result in an illegal assessment so as to warrant relief under § 12-119; and (3) Can the provisions of a regulatory agreement of the federal housing commissioner, contained in a mortgage assumption agreement, create a real property interest in the federal housing commissioner so as to warrant a proration of the real property assessment between the owner and the federal housing commissioner.
On July 6, 1988, the plaintiff, Second Stone Ridge Cooperative Corporation (Stone Ridge), filed an application in the Superior Court for relief from a wrongful assessment of real property pursuant to § 12-119. The application alleged that Stone Ridge was the owner *337of land and buildings in the defendant city of Bridgeport subject to taxation on the grand list of October 1, 1987. The application further alleged that the Bridgeport assessors had valued the land for assessment purposes at $587,440 and the buildings at $1,929,424, for a total assessment of $2,516,864. See footnote 2, infra. Finally, the application alleged that the valuation “[did] not properly allocate the assessment to various parties owning interests in the property” and that the resulting tax was manifestly excessive, and disregarded both the statutes for determining real property values and “the interests of the owner as affected by the interest of the Federal Housing Commissioner in the subject premises.”
The state trial referee found that Stone Ridge was “a nonpublic, subsidized cooperative housing project consisting of 189 duplex, two story units in 26 buildings, constructed in 1964.” The shareholders occupying the units pay a monthly pro rata carrying charge in an amount equal to the funds necessary to pay the cooperative’s operating expenses, debt service and reserve for maintenance and repairs. Any excess in income generated by the cooperative must go into a reserve fund solely for maintenance and repair of the facility. Membership in the cooperative is limited to families whose income does not exceed standards set by the United States Housing and Urban Development agency (HUD).
Stone Ridge raised two claims to the trial referee. First, it claimed that the method used by the Bridgeport assessors in making the October, 1987 assessment was contrary to the appraisal methods permitted under the statute for determining the fair market value of real property subject to assessment. Second, it claimed that the tax levied should be prorated between Stone Ridge and HUD “because many of the bundle of rights associated with ownership belong to HUD [and] not to *338[Stone Ridge] under the regulatory agreement and mortgage covenants between the cooperative and HUD.”
As to the first claim, that Bridgeport’s assessors used the wrong method in assessing Stone Ridge’s property, the trial referee found that Bridgeport’s valuation of the property was based on the cost of building replacement. The trial referee further found that “there was no data on which to make that evaluation, and none was provided by the person who testified for the city.” The trial referee found it significant that the two experts who testified agreed “that the only feasible method of evaluating the plaintiff’s property is through income capitalization.” The trial referee concluded “that the assessment in question was wrongful in that it was derived from an inappropriate method of evaluation contrary to the statutes and that it was manifestly excessive.”
As to Stone Ridge’s second claim, that the tax levied should be prorated between Stone Ridge and HUD, the trial referee concluded that General Statutes § 12-64 required that “the title holder be the person or entity subject to the tax.” Because the Bridgeport land records “clearly identified] [Stone Ridge] as the title holder of the property in question,” the trial referee concluded that Stone Ridge “is the appropriate entity subject to the tax.”
The trial referee rendered judgment reducing the fair market value of the property as of October 1, 1987, from $3,595,520 to $1,700,000.2 Bridgeport appealed *339to the Appellate Court and Stone Ridge cross appealed. We transferred the matter to this court pursuant to Practice Book § 4023.
Although Bridgeport asks us to address other issues, the disposition of this matter requires us to focus first on whether an application for relief under § 12-119 is authorized under the factual circumstances presented in this case. We conclude that § 12-119 does not authorize such proceedings under these circumstances.
We have, upon a number of occasions, distinguished General Statutes §§ 12-115 and 12-1183 from their companion statute, § 12-119. See footnote 1, supra. “Our statutes [§§ 12-115 and 12-118] provide a method by which an owner of property may directly call in question the valuation placed by assessors upon his property by an appeal to the board of [tax review for] relief, and from it to the courts. . . . These statutes limit to a short period the time within which the property owner can seek relief under them, and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes.” Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944).
On the other hand, § 12-119 allows a taxpayer one year to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, *340or that the assessment was “manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . .” (Emphasis added.) Our case law makes clear that a claim that an assessment is “excessive” is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes § 12-119 from its more frequently invoked companion, § 12-118. In Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924), we addressed the predecessor statute of § 12-119 and concluded that there were two possible grounds for recovery under the statute: “the absolute nontaxability of the property in the municipality where situated, and a manifest and flagrant disregard of statutory provisions.” Claims under § 12-119 must fall into one of these two categories.
“The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . ." E. Ingraham Co. v. Bristol, 146 Conn. 403, 408, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S. Ct. 367, 4 L. Ed. 2d 352 (1959). This category includes claims alleging that the municipality has exceeded the scope of its taxing power. Cases that fit in this category include Fenwick v. Old Saybrook, 133 Conn. 22, 24, 47 A.2d 849 (1946) (municipality cannot tax a public park established by a borough of the municipality), and First National Bank & Trust Co. v. West Haven, 135 Conn. 191, 194, 62 A.2d 671 (1948) (municipality has no authority to tax the property of a national bank). See also Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 332 A.2d 83 (1973) (utility right-of-way generally not taxable separate from freehold to which attached); Security Mills, Inc. v. Norwich, 145 Conn. 375, 143 A.2d 451 (1958) *341(assessment cannot be levied on personal property not located in municipality).4
The second category consists of claims that assessments are “(a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.” (Emphasis added.) E. Ingraham Co. v. Bristol, 146 Conn. 403, 409, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S. Ct. 367, 4 L. Ed. 2d 352 (1959). Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. “[The] plaintiff . . . must satisfy the trier that [a] far more exacting test” has been met: either “there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part.” Mead v. Greenwich, 131 Conn. 273, 275, 38 A.2d 795 (1944). Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of § 12-119 is whether the assessment is “illegal.” Cohn v. Hartford, 130 Conn. 699, 703, 37 A.2d 237 (1944); see E. Ingraham Co. v. Bristol, supra, 408 (municipality disregarded the statutes when it taxed real property at 50 percent of its value, personal property at 90 percent and motor vehicles at 100 percent at a time when municipalities were prohibited from assessing property as a percentage of its value); Strat*342ford Arms Co. v. Stratford, 7 Conn. App. 496, 500, 508 A.2d 842 (1986) (property could not be taxed as condominiums when still legally an apartment building at date of assessment). The statute applies only to an assessment that establishes “a disregard of duty by the assessors.” L.G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975).
Although the time for initiating an action pursuant to § 12-118 had long since expired, Stone Ridge claimed the right to proceed under § 12-119 on the basis of its allegations that the Bridgeport assessors used an incorrect method in valuing the Stone Ridge apartment complex. The state trial referee agreed and, having concluded that the assessment was wrongful “in that it was derived from an inappropriate method of evaluation,” proceeded to revalue the property. We disagree.
“[T]he process of estimating the value of property for taxation is, at best, one of approximation and judgment, and there is a margin for a difference of opinion.” Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 675, 154 A.2d 608 (1959). “There may be more ways than one of estimating the value of such . . . [property] for taxation.” Bridgeport Brass Co. v. Drew, 102 Conn. 206, 212, 128 A.2d 413 (1925).
At least four methods exist for determining the fair market value of property for taxation purposes: (1) analysis of comparable sales; (2) capitalization of gross income; (3) capitalization of net income; and (4) reproduction cost less depreciation and obsolescence. Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 230, 188 A. 433 (1936); see also General Statutes § 12-63b. “Each of these is an approved method of ascertaining the actual value of real estate for purposes of taxation. We so held as to the method of reproduction costs in Underwood Typewriter Co. v. Hartford, [99 Conn. 329, 337, 122 A. 91 (1923)].” Lomas & *343Nettleton Co. v. Waterbury, supra, 231. Because we have specifically approved of the method used by Bridgeport in initially evaluating the property on the basis of its reproduction cost less depreciation, we conclude that the trial referee incorrectly held “that the assessment in question was wrongful in that it was derived from an inappropriate method of evaluation contrary to the statutes . . . .”
While an insufficiency of data or the selection of an inappropriate method of appraisal could serve as the basis for not crediting the appraisal report that resulted, it could not, absent evidence of misfeasance or malfeasance, serve as the basis for an application for relief from a wrongful assessment under § 12-119.
Because we are not faced with a situation involving the absolute nontaxability of the property and because the selection of an inappropriate method of appraisal or a paucity of the underlying data in connection with an appraisal, without more, is not manifestly illegal under our statutes, we conclude that the circumstances presented here do not rise to the level of the extraordinary situation that would warrant tax relief under the provisions of § 12-119.
Because we have concluded that an appeal under § 12-119 was not authorized under these circumstances, we need not address Bridgeport’s further claim that the trial referee incorrectly revalued the property as of October 1,1987, instead of October 1,1983, the date of the last decennial revaluation. See, however, Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987); Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629, 438 A.2d 782 (1981).
In its cross appeal, Stone Ridge claims that the trial referee should have prorated the assessment between Stone Ridge and HUD because HUD has an “interest” in the property. Specifically, Stone Ridge argues that *344as a condition for obtaining federally subsidized financing for the project, the original developer had to relinquish many of the rights fundamental to the ownership of real property for forty years.5 Thereafter, when Stone Ridge purchased the property, assumed the federal mortgage and executed its own regulatory agreement with the federal housing authority, these restrictions became binding upon Stone Ridge. Title to the premises, however, stands in the name of Stone Ridge.
General Statutes § 12-64 (a) unequivocally declares that: “Any interest in real estate shall be set by the assessors in the list of the person in whose name the title to such interest stands on theiand records . . . (Emphasis added.) Stone Ridge cites no authority for the proposition that the assessment should be shared with HUD because of the control that HUD exercises over the property. In fact, there is support for the contrary proposition. See Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17, 22-23, 54 S. Ct. 267 (1934). Since title to the property stands in the name of Stone Ridge, we hold that the trial referee correctly concluded that Stone Ridge is the entity subject to assessment and the resulting tax.
With respect to the appeal, the portion of the judgment modifying the value of the Stone Ridge property as of *345October 1,1987, is reversed and the case is remanded with direction to render judgment for the city of Bridgeport. With respect to the cross appeal, the portion of the judgment concluding that the entity subject to assessment and taxation is Second Stone Ridge Cooperative is affirmed.
In this opinion the other justices concurred.
General Statutes § 12-119 provides: “remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . may, in addition to the other remedies provided by law, make application for relief to the superior court .... In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains . . . .”
The $3,595,520 value discussed in the trial referee’s decision was the 100 percent fair market value of the property. In Bridgeport, real property is assessed at 70 percent of its fair market value. The $2,516,864 value referred to in Stone Ridge’s application represented the 70 percent value used for assessment purposes. The trial referee’s decision that Stone Ridge’s property had a fair market value of $1,700,000 had the effect of reducing the property’s 70 percent assessed value to $1,190,000, a 52.7 percent reduction in value.
General Statutes § 12-115 provides in relevant part: “Any person aggrieved by the action of [a board of tax review] may, within two months from the time of such action, have the same right of appeal to the superior court as provided by section 12-118. . . .”
General Statutes § 12-118 provides in relevant part: “Any person . . . claiming to be aggrieved . . . may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court .... The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . .”
For cases in which similar claims have been raised and rejected, see Faith Center, Inc. v. Hartford, 192 Conn. 434, 437, 472 A.2d 16, cert. denied, 464 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984) (assessment on property claimed tax exempt fell within confines of General Statutes § 12-119); Crescent Beach Assn. v. East Lyme, 170 Conn. 66, 363 A.2d 1045 (1976) (land claimed exempt as for a public purpose fell within statute); Curly Construction Co. v. Darien, 147 Conn. 308, 160 A.2d 751 (1960) (plaintiff had not met burden of proving equipment had not acquired tax situs in Connecticut); Associated Grocers, Inc. v. New Haven, 147 Conn. 287, 160 A.2d 489 (1960) (stock inventory taxable where located.)
The plaintiffs experts claimed that the following incidents of ownership were implicated by the agreement between Stone Ridge and HUD: (1) The right to sell the property; (2) The right of voluntary disposition; (3) The right to redeem the mortgage; (4) The right to determine or amend the occupancy agreement with Cooperative members; (5) The right to refinance the mortgage; (6) The right to select tenants without regard to income; (7) The right to increase income; (8) The right to retain the income; (9) The right to give preference to occupants of its choice; (10) The right to refuse tenants with marginal income; (11) The right to hire management of its own choosing; (12) The right to determine necessary reserves; (13) The right to amend the Cooperative’s by-laws; and (14) The right to invest funds of the Cooperative as desired. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841955/ | Shea, J.
This is an appeal from the denial by the trial court of the plaintiffs motion to open a judgment of dissolution for the purpose of modifying the award of periodic alimony. We are asked to decide whether the court was bound to consider an inheritance received by the defendant several years after the original alimony award, the assets of which had vested in him but had not yet been distributed to him. We answer this question in the affirmative and, therefore, reverse the judgment and remand the case for further proceedings.
The relevant facts are undisputed. On June 26,1985, the trial court, D. Dorsey, J., rendered a judgment dissolving the twenty-one year marriage between Gabrielle F. Bartlett, the plaintiff, and E. Lewis Bartlett IV, the defendant. The court found that the marriage had broken down irretrievably and ordered the defendant to pay the plaintiff $7500 in attorney’s fees, $194,000 in lump sum alimony, and $1900 in monthly periodic alimony and also to maintain health insurance for her benefit until March 26,1986. The court awarded the defendant sole ownership of the house where the two had spent their married life.
During the trial of the marital dissolution action, the plaintiff had attempted to introduce evidence of a revocable trust created by the defendant’s mother, from which she claimed the defendant would benefit upon his mother’s death. She argued that evidence of the defendant’s contingent interest in the trust was relevant to his financial circumstances, a significant factor for the court to consider when dividing the marital *374property and fashioning an award of alimony. The court rejected this argument, stating that, because the defendant’s mother retained the power to revoke the trust at any time, the potential inheritance was a mere expectancy, not a vested property interest, and was thus properly excluded according to the rule announced in Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978). No appeal was taken from the original judgment of dissolution.
On September 13,1990, the plaintiff filed a “Motion to Reopen and Modify Dissolution Judgment,” pursuant to General Statutes § 46^86,1 seeking an increase in the amount of periodic alimony originally awarded to her. She claimed that there had been a substantial change in circumstances since the dissolution in that (1) the defendant had finally acquired a sizable inheritance from his mother’s estate, and (2) her health had deteriorated since the original judgment, causing her to incur greater health care expenses. She sought an additional $1100 per month in alimony and also requested that the defendant be ordered to pay for her health insurance coverage once again.2
*375Evidence presented at the hearing on the motion revealed that the defendant’s mother had died on July 28,1990, leaving a last will and testament and a trust agreement executed in conjunction with the will. The will named the defendant as the legatee of certain items of personal property of no great monetary value and also provided that the residuary estate be transferred to the trust created at the time the will was executed. The trust agreement directed the trustee to “set out two-thirds (2/3) of the Trust Estate” for the defendant upon his mother’s death. The estimated value of the whole trust estate, including the distribution to be received upon settlement of the probate estate, was between $2,000,000 and $3,000,000. A bank official testified, however, that it was likely to take approximately two years for the defendant to obtain actual possession of his inheritance because administrative matters, such as the payment of taxes, would delay the distribution. In addition, the marital home now owned solely by the defendant had appreciated in value from $300,000 at the time of the original judgment to $743,000 at the time the motion was being considered.
The trial court, Hon. Harry W. Edelberg, state trial referee, denied the motion for essentially two reasons. First, the court concluded that Judge Dorsey had already considered the possibility of the inheritance during the original dissolution proceeding when fashioning the award of alimony and the assignment of property. Second, the court interpreted our decision in Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987), to require exclusion of the evidence of the defendant’s inheritance because he had not yet received any assets from the estate or from the trust. The plaintiff argues that the court was mistaken with respect to both issues3 *376and seeks a reversal of the decision and a new hearing on the motion. We agree with this claim and grant the requested relief.
I
The first claim, that the trial court, Hon. Harry W. Edelberg, state trial referee, improperly concluded that Judge Dorsey had considered the possibility of the inheritance4 for purposes of the original property division and alimony award, is easily resolved. In rendering the dissolution judgment, Judge Dorsey stated, with respect to the property division and alimony award, that he had considered “the health, the station, the occupation of both parties, the sources of income, the vocational skills, and the employability, the estate, and the liabilities and the needs of each party—and the opportunity for—of each for the future acquisition of capital assets and income.”5 While this language itself is ambiguous in that the defendant’s then contingent interest in his mother’s estate could conceivably have been classified as an “opportunity for . . . the future acquisition of capital assets and income,” any doubt is dispelled by the court’s earlier exclusion of the evidence of the revocable trust. The record indicates that Judge Dorsey had an extended colloquy with counsel for both parties, consulted case law on the subject and ultimately excluded evidence of the potential inheritance because it was a mere expectancy that had not yet vested.6
*377The defendant argues that although the court purported to exclude that evidence, the fact that the plaintiff was awarded $194,000 in lump sum alimony and $1900 per month in periodic alimony, amounts he considers disproportionately large, indicates that the court must have considered the potential inheritance in arriving at its decision. In support of his argument, he notes that the lump sum alimony payment represented more than one half the value of the equity in the marital home at the time of the dissolution,7 and that at the time the $1900 monthly alimony award was made, his income was shown to be only $1070 per week with expenses of $1448 per week. We are not persuaded by this argument.
No inference can be drawn from the terms of the marital dissolution judgment, which has become final and *378was never appealed, that its terms were influenced by improper consideration of a potential inheritance, especially when the court expressly excluded such evidence as irrelevant. A judgment that has become final must be presumed to have been based on the evidence adduced at trial and rendered in accordance with the law. Kelly v. New Haven Steamboat Co., 75 Conn. 42, 46-47, 52 A. 261 (1902). In arriving at an equitable division of property and award of alimony, the court was not limited to a mechanical halving of the equity in the marital home or a simple subtraction of the defendant’s expenses from his income. General Statutes §§ 46b-81 and 46b-82 set forth a host of factors to be considered,8 and the court was entitled to exercise wide latitude in varying the weight placed upon each factor in light of the particular circumstances of the case. Carpenter v. Carpenter, 188 Conn. 736, 741, 453 A.2d 1151 (1982); Volante v. Volante, 180 Conn. 528, 531, 429 A.2d 964 (1980). The claim that the award of alimony and the division of property in the original judgment were unduly favorable to the plaintiff unless the court considered the defendant’s potential inheritance is refuted by the many factors actually relied upon by Judge Dorsey in rendering his decision.9 Thus the inference the defendant seeks to draw from the terms of the judgment is unfounded.
*379II
The second claim advanced by the plaintiff is that the trial court, in entertaining her motion to modify the periodic alimony award, improperly excluded the evidence of the defendant’s inheritance. She argues that the inheritance vested in the defendant upon his mother’s death and that it therefore should have been considered by the court because it was no longer a mere expectancy, as it had been at the time of the original dissolution proceedings in 1985.
The defendant disagrees not only with the plaintiff’s view of which assets are properly considered on a motion to modify alimony but also with her assertion that the inheritance had “vested” in him at all. He claims that, when his mother died, the inheritance vested not in him but in the trust created by his mother. He argues that the inheritance will not vest in him until the trustee distributes the proceeds to him, and that only then may the assets be considered for purposes of modifying the award of periodic alimony. This argument reveals a misunderstanding of the difference between the vesting of a property right and the possession of property.
It is well settled that a person’s right of inheritance vests at the moment of the decedent’s death; Emanuelson v. Sullivan, 147 Conn. 406, 409, 161 A.2d 788 (1960); and that “although distribution occurs a considerable time thereafter, it relates back to the date of the death as the time when the right of the beneficiary became fixed.” Blodgett v. Bridgeport City Trust Co., 115 Conn. 127, 144, 161 A. 83 (1932). In this case, it was not necessary for the plaintiff to prove that the *380defendant had acquired actual possession of the assets of his mother’s estate in order to make the necessary showing of a substantial change in circumstances not contemplated at the time of dissolution. Proof of the vesting of the defendant’s right to his inheritance was sufficient to support the motion to modify the award of periodic alimony. It is of no moment that the assets to which the defendant was entitled were temporarily held in a trust, pending settlement of his mother’s estate. The trust was merely an administrative vehicle that could not alter in any way the defendant’s right to his inheritance, which vested in him at the moment of his mother’s death. Krause v. Krause, supra; Kingsbury v. Scovill, 26 Conn. 349, 352 (1857).
Having determined that the defendant’s inheritance did vest in him upon the death of his mother, we hold that the trial court was bound to consider that inheritance in ruling on the motion for an increase in alimony, despite the fact that the assets of the inheritance had not yet been distributed to him. The trial court, in ruling on the motion, misconstrued our decision in Rubin v. Rubin, supra, when it limited its inquiry to the defendant’s earnings. In Rubin, the trial court, after hearing evidence that the husband was a residuary beneficiary of a revocable inter vivos trust created by his mother and was one of two equal residuary legatees under his mother’s will, ordered the husband to pay to his wife “one third of the net estate that he may receive ‘from either the trust created by his mother and from her by way of a testamentary gift or other form of inheritance.’ ” Id., 227. The Appellate Court affirmed the trial court’s ruling, but we reversed, holding that such a contingent order could not be upheld as a valid assignment of property under § 46b-81 or as a valid award of alimony under § 46b-82, because it was based upon a mere expectancy on the part of the plaintiff husband, rather than on a vested property right. *381We determined that such an order was illusory because “[t]he expectancy may never be realized because of diminution of the donor’s wealth or a change in the planned disposition of his property.” Id., 235. We also pointed out that “[bjeeause periodic alimony orders are modifiable when changes in circumstances occur, the increase in the plaintiffs financial ability that may occur upon his mother’s death would constitute a change of circumstances ordinarily warranting an increase in the weekly alimony payment . . . .’’Id., 235-36.
In this case, the trial court in the dissolution action in 1985 properly excluded evidence of the defendant’s potential inheritance of his mother’s estate, because at that time, as was the case in Rubin, it was a mere expectancy, in that his mother retained the power to diminish the value of the estate or to revoke or reduce her son’s contingent interest in it at any time. See also Fattibene v. Fattibene, 183 Conn. 433, 443, 441 A.2d 3 (1981); Thompson v. Thompson, 183 Conn. 96, 98-99, 438 A.2d 839 (1981); Krause v. Krause, supra. Once the defendant’s mother died, however, precisely the situation contemplated in Rubin occurred: the defendant’s financial circumstances changed substantially upon the vesting of his inheritance, warranting the plaintiff’s motion to open the judgment to increase the award of periodic alimony. Accordingly, it was improper for the court not to consider the evidence of that vested interest.
The defendant further argues that, even if his inheritance vested upon his mother’s-death, the trial court was limited to evidence of liquid assets and income-producing real property for the purpose of modifying the alimony award. He admits, however, that a court may properly consider all assets, liquid and non-liquid alike, for the purpose of fashioning the original alimony award at the time of dissolution. We have stated in the past that “[tjhe same criteria that deter*382mine an initial award of alimony are relevant to the question of modification, and these require the court to consider, without limitation, the needs and financial resources of each of the parties, as well as such factors as health, age and station in life. General Statutes § 46b-82.” Cummock v. Cummock, 180 Conn. 218, 221-22, 429 A.2d 474 (1980). The defendant proffers, and we perceive, no logical reason to justify a departure from our decision in Cummock to draw the distinction he urges. On the contrary, logic and sound public policy dictate a rule that requires the consideration of all assets, because a contrary rule would encourage parties who acquire substantial amounts of nonliquid assets after the original judgment to insulate themselves from paying more alimony, despite their increased wealth, by simply delaying the liquidation of those assets. We therefore reject the argument that only liquid assets are relevant to alimony modification.
The final claim advanced by the defendant is that the trial court correctly excluded evidence of the inheritance because it was comprised of “property,” and although the court had authority to modify the alimony award, it had no such authority to modify the original assignment of “property.” See General Statutes § 46b-86, footnote 1, supra. In other words, he claims that the motion to modify alimony was nothing more than an artifice designed to effectuate a new distribution of the property inherited rather than to increase the alimony award. This argument is without merit. Although we agree that the court had no statutory authority to modify the original property assignment, that argument is irrelevant because the plaintiff did not seek to have a portion of the property inherited by the defendant assigned to her. She sought to increase the periodic alimony award because the defendant’s financial circumstances had changed substantially due to his inheritance of certain property. *383Whether the defendant inherited “property” or cash is of no consequence; a substantial increase in wealth of any sort may form an appropriate ground for a motion to modify alimony.
Our conclusion that the trial court should have considered the defendant’s vested inheritance for purposes of alimony modification comports with our recent decision in Eslami v. Eslami, 218 Conn. 801, 591 A.2d 411 (1991). In Eslami, the trial court failed to consider the plaintiff wife’s vested interest in her father’s estate, the assets of which she had not yet received, because the value of her interest could not be determined. Evidence at the trial showed that her brother had initiated a will contest which was still pending and that the value of her interest depended upon the resolution of that litigation.10 We affirmed the judgment of the trial court, noting that “[although the interest involved here had vested in the wife at the time of trial, the court could reasonably have concluded that uncertainty as to the amount she would eventually receive from her father’s estate militated against consideration of that interest for the purpose of financial awards.” Id., 807. We also indicated that modification of the alimony award would be appropriate when the value of her interest became ascertainable. Id., 808.
In the case now before us, the trial court never reached the issue of valuation of the inheritance, as the trial court in Eslami did, because it declined to consider the defendant’s inheritance at all in ruling on the motion to modify alimony. The court’s mistaken belief that the inheritance had not yet vested because the defendant had not yet received the proceeds prompted the court to deny the motion without attempting to ascertain the value of the inheritance. Had the court *384made the appropriate inquiry, it would have had discretion to resolve the question in any number of ways. For example, if the court had been able to ascertain the value of the defendant’s interest with reasonable certainty, it could have entered an order in which the increase in the award of periodic alimony would accrue until such time as he actually received the inheritance or was otherwise able to pay his obligation. Such an order would have extended the benefit of the modification to the plaintiff and would have simultaneously protected the defendant from the threat of being held in contempt for disobeying a modified alimony order that might have exceeded his current financial ability to meet it. See Rubin v. Rubin, supra, 237. If, on the other hand, the court had not been able to make a proper valuation of the inheritance, it could have done what the trial court in Eslami effectively did: postpone consideration of the inheritance until such time as its value could be ascertained with reasonable certainty. Because the court never reached the issue of valuation, however, we cannot uphold its decision to deny the motion.
We note finally that the plaintiff should not be penalized by the passage of time from the date she filed the motion to modify alimony to the date on which the new hearing will be held. If, on rehearing, the trial court should decide that she is entitled to an increase in her award of periodic alimony, the court’s order should be effective as of the date of service of notice of the motion upon the defendant so as to afford the plaintiff the benefit of the modification from the time when it was originally sought. General Statutes § 46b-86 (a).
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other justices concurred.
General Statutes § 46b-86 provides in pertinent part: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party .... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of such pending motion upon the opposing party pursuant to section 52-50.” (Emphasis added.)
In the alternative the plaintiff requested an increase of $1600 per month in alimony if she were required to purchase the health insurance coverage herself.
The plaintiff has advanced no specific claim of error with respect to the court’s failure to consider the appreciation in the value of the marital home in ruling on the motion. Consequently, we do not address that aspect of the court’s ruling.
For the sake of convenience we use the term “inheritance” to refer to the defendant’s interest as beneficiary of both his mother’s will and the trust created by her.
This was essentially a recitation of the factors set forth in General Statutes §§ 46b-81 and 46b-82. See footnote 8, infra.
After counsel for the defendant stated his first objection to admission of evidence of the potential inheritance, Judge Dorsey consulted case law during a recess. Upon returning, he gave a lengthy synopsis of the facts of Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978), and then noted that “the court [in Krause] went on to say the expectancy, that is, the inheritance, is speculative. . . . Expectancy is the bare hope of succession. *377It is an inchoate hope. It has no attribute of property, and the interest to which it relates is at the time nonexistent, and may never exist. Meaning that, of course, a testator has the absolute right to cut anybody off up to the very last moment he breathes. And then it went on to say the moment of the decedent’s death determines the right of inheritance. . . .” Thereafter, the following colloquy took place between Judge Dorsey and counsel for the plaintiff about admission of the potential inheritance:
“Mr. Mikolitch: The primary beneficiary is—It’s a revocable trust. The primary beneficiary is the donor, and at her death there would be certain— the defendant would be the primary beneficiary.
“The Court: It isn’t any different than a will, except she can revoke it at any time.
“Mr. Mikolitch: Well, she can, but the point is that it’s been in effect all these years.
“The Court: But she still has that power.
“Mr. Mikolitch: She still has that power, but—
“The Court: She could revoke it tomorrow.
“Mr. Mikolitch: That’s true.
“The Court: I could enter an order against it, and she still would have the power to revoke it.
“Mr. Mikolitch: Well, she could. That’s true.
“The Court: But I’m not going to let it in, based upon the Krause case. ” (Emphasis added.)
Undisputed evidence indicated that the house had an appraised value of $300,000 with an outstanding mortgage of $60,000 resulting in a value for the equity of $240,000 or $120,000 for each party.
Under the provisions of both statutes, the trial court “shall consider the length of the marriage, the causes for the . . . dissolution of the marriage ... the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .” General Statutes § 46b-82. General Statutes § 46b-81 (c) also provides for consideration of the “liabilities” of each of the parties. In assigning marital property, the trial court must also consider the opportunity for each party to acquire future capital assets and income, as well as the contribution of each of the parties toward the value of their respective estates. General Statutes § 46b-81 (c).
Rendering his decision orally, Judge Dorsey expressly found that the plaintiff was fifty-six years old at the time of dissolution, that she had high blood pressure and a residual nervous condition, that she had made substantial financial contributions to the marriage and the marital home, that *379the couple had been married for twenty-one years, and that there was greater fault on the part of the defendant with respect to the cause of the breakdown of the marriage.
The wife expected to receive about $180,000 from the estate if the will were upheld as opposed to $80,000 if it were not upheld. Eslami v. Eslami, 218 Conn. 801, 806, 591 A.2d 411 (1991). | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841956/ | Covello, J.
This is the defendant’s appeal from his conviction of one count of felony murder in violation of General Statutes § 53a-54c.1 The issues on appeal *387are whether: (1) the state was entitled to a jury instruction on accessorial liability; (2) a television interview of the victim’s mother, viewed by two jurors, compromised their ability to continue as fair and impartial jurors; (3) the admission of evidence concerning the defendant’s arrest on an unrelated matter constituted evidentiary error; (4) the trial court placed an improper limitation on the cross-examination of a state’s witness; (5) the trial court’s charge to the jury placed undue emphasis on the defendant’s interest in the outcome of the case; and (6) the trial court’s jury instruction on the burden of proof in connection with circumstantial evidence constituted harmful error. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. On August 28, 1989, in the early hours of the morning, the victim, Orville Grant, and Mervin Need-ham were walking on Sixth Street in Bridgeport when they were approached by the defendant, Floyd Williams, and two other men. The defendant and his two companions all were armed with guns. The defendant forced the victim and Needham to lie on the ground while he rifled Needham’s pockets for what turned out to be $5 in cash. The defendant then ordered both men into a nearby yard and again forced them to lie down. After some discussion, all three assailants began shooting. As a result of this assault, Grant died of a gunshot wound to the head.
Just prior to trial, the state filed an amended long form information charging the defendant in a seven count information with violations of the following general statutes: (1) felony murder, General Statutes *388§ 53a-54c; (2) murder, General Statutes § 53a-54a (a); (3) attempted murder, General Statutes §§ 53a-49 and 53a-54a (a); (4) robbery in the first degree, General Statutes § 53a-134 (a) (2); (5) attempted assault in the first degree, General Statutes §§ 53a-49 and 53a-59 (a) (1); (6) assault in the second degree, General Statutes § 53a-60 (a) (2); and (7) carrying a pistol without a permit, General Statutes § 29-35.2 On August 21,1990, a jury found the defendant guilty of the single count of felony murder. The trial court sentenced the defendant to a term of sixty years imprisonment.
I
The defendant first claims that the trial court erred in instructing the jury on the theory of accessorial liability in connection with the robbery that constituted the felony portion of the felony murder charge. The defendant claims that he was charged only as a principal and therefore, the trial court erred in telling the jury that he could be found guilty of felony murder even though they might conclude that he was only an accessory to the alleged acts. We disagree.
“Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Harris, 198 Conn. 158, 502 A.2d 880 (1985); State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979); State v. Parham, 174 Conn. 500, 508, 391 A.2d 148 (1978).” State v. Fleming, 198 Conn. 255, 268 n.15, 502 *389A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); see State v. Smith, 212 Conn. 593, 606, 563 A.2d 671 (1989).
While there is no question that the state produced sufficient evidence from which the jury could reasonably have concluded that the defendant was an accessory to the robbery underlying the felony murder, the defendant argues that the circumstances here are identical to those present in State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), and therefore, the trial court should not have instructed the jury that the defendant could be found guilty of felony murder under a theory of accessorial liability. In Steve, the state’s bill of particulars charged the defendant with robbery and assault in the first degree claiming specifically that he acted as a principal. After the state concluded its case-in-chief, the defendant took the stand in his own defense and testified that a second person had committed the robbery and shot the victim. A second defense witness corroborated the defendant’s testimony but added that she had seen the defendant accompany the assailant. The trial court thereafter charged the jury on accessorial liability and the jury found the defendant guilty of both offenses. On appeal, a majority of this court concluded that the defendant was prejudiced by the variance between the trial court’s charge to the jury and the state’s theory of liability as set forth in the bill of particulars. Specifically, the majority concluded that the defendant relied upon the state’s theory that the defendant was the principal in each crime and that the defendant crafted his defense to address the claim that he had acted as the principal. We conclude that Steve is distinguishable for two reasons.
First, the amended information in this case charged that “said FLOYD WILLIAMS did commit Robbery, and in the course of and furtherance of such crime he or another participant in said crime did cause the death *390of ORVILLE GRANT . . . .” (Emphasis added.) A fair reading of the information should have alerted the defendant to the fact that the state was claiming that either he or another participant “in said crime,” i.e., the robbery, thereafter caused the death of the victim. The charging document squarely alerted the defendant to the fact that the state was relying on alternative theories of liability and that the evidence to be presented would tend to establish the defendant’s guilt either as a principal or as an accessory. Thus, unlike Steve, there is no factual basis for a claim that the defendant relied upon an information charging him as a principal in preparing a defense that he was only an accomplice.
Second, prior to introducing any evidence in defense of the state’s allegations, defense counsel moved that the court rule on whether the state would be entitled to a jury instruction that would permit a finding of guilt based upon a theory of accessorial liability. The trial court, concluding that the motion was premature, ruled: “I’ll make my determination when, when we are discussing the contents of the Court’s intended charge.” Thus, unlike the situation in Steve, the defendant here was specifically put on notice by the trial court, prior to beginning his defense, that the issue of accessorial liability was still in the case. See also State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971); State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 (1923); State v. Burns, 82 Conn. 213, 218-19, 72 A. 1083 (1909); State v. Hamlin, 47 Conn. 95, 120 (1879).
II
The defendant next claims that the trial court erred in denying his motion for a new trial based upon the observation by two jurors of an allegedly prejudicial television interview of the victim’s mother. On *391August 21, 1990, immediately prior to the jury commencing its second day of deliberations, the trial court, having been made aware that such an interview had been broadcast the previous evening, asked the jurors if any of them had seen the newscast. Two jurors recalled seeing small portions of the interview. Neither juror had discussed the interview’s content with the other jurors and both stated to the trial court that they did not believe that their observations had compromised their impartiality as jurors. Without objection, the trial court allowed the jurors to resume their deliberations.
On October 5,1990, the day assigned for the defendant’s sentencing, the defendant moved for a new trial based upon these jurors’ observation of the allegedly prejudicial television newscast. The trial court viewed a videotape of the newscast and thereafter denied the defendant’s motion concluding that its only effect was to “possibly evoke some sympathy” and that “[t]he Court [had] adequately instructed them on that,” i.e., “that they were not to allow sympathy to play any part in their deliberations . . . .”
When “the partiality of an individual juror is placed in issue . . . [the] question is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). “Thus the question is whether there is fair support in the record for the state court’s conclusion that the jurors here would be impartial.” Patton v. Yount, supra, 1038.
In the present instance both jurors described a limited viewing of the television interview. One juror stated that he had viewed only a part of the program and by the time he realized that it even concerned his case, *392the interview was over. The other juror was reading the newspaper while watching television and it was his wife who called his attention to the television. He estimated that he had probably seen the last few seconds of the interview. After the trial court had questioned each juror separately, it determined that the incident had not caused them to form any opinion or reach any conclusion about the case. Neither juror discussed the program with his fellow jurors. Further, the trial court personally viewed a videotape of the newscast and concluded, as stated above, that its only effect was to “possibly evoke some sympathy,” a matter upon which he had previously instructed the jury. Under the totality of these circumstances, we conclude that “there is fair support in the record for the . . . [trial court’s] conclusion that the jurors here would be impartial.” Patton v. Yount, supra, 1036.
Ill
The defendant next claims that he was denied his right to a fair trial as the result of a state’s witness testifying about the defendant’s arrest on an unrelated charge. During the presentation of the state’s case, Detective David Silva testified that on October 28, 1989, he assisted in the execution of a search warrant at the home of the defendant’s parents. Silva found the defendant hiding in the attic. Silva then testified that there had been at least two arrest warrant applications in connection with the present charges and that he had made six attempts between August 28,1989, and October 28,1989, to locate the defendant. On cross-examination, defense counsel brought out that the warrant for the defendant’s arrest on the present charges was dated October 30, 1989. Counsel further elicited that the defendant was arrested on October 28, 1989. Defense counsel then asked: “So are you telling the Court then that he was arrested without an arrest warrant?” Silva responded: “He was arrested on a totally *393unrelated warrant.” There was no request that the answer be stricken nor was there a request for a curative instruction.
On redirect examination of Silva, the state’s attorney asked: “And you say he was arrested on a totally unrelated arrest warrant pending against him at that time? Unrelated to the instant case?” Over the defendant’s objection, the trial court permitted the witness to respond affirmatively that the defendant was arrested on an unrelated matter. There was no further development of the issue.
“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977); McCormick, Evidence (3d Ed. 1984) §§ 32, 57. The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).
In pursuing the discrepancy between the October 28 date of the defendant’s physical arrest and the October 30 date on the arrest warrant the defendant sought to raise in the juror’s minds the clear implication that either: (1) the arrest records were in error; (2) the defendant had been arrested without a warrant; or (3) Silva’s recollection of all of the events, including his testimony that the defendant was hiding in the attic, was faulty. When, upon cross-examination, Silva resolved the apparent anomaly by disclosing that there had been a second warrant on an unrelated matter, this subject became an appropriate topic for Silva’s redirect testimony even though the material might otherwise have been inadmissible.
*394IV
The defendant next claims that the trial court erred in limiting his cross-examination of Needham in connection with his alleged prior inconsistent statement. On December 14, 1989, while testifying at a probable cause hearing to determine whether the defendant should stand trial for felony murder, Needham stated that in giving a statement to the police the day after the incident: “[The police] made me identify [the defendant].”3 On August 9,1990, during a hearing on the defendant’s motion to suppress Needham’s out-of-court identification, Needham repeatedly stated that he was not forced into identifying the defendant.
At trial, the defendant sought to elicit during cross-examination Needham’s statement at the probable cause hearing that he was “made” to identify the accused. The trial court sustained the state’s objection to the question on the grounds that the question was beyond the scope of the direct examination as there had been no evidence concerning Needham’s identification of the defendant at any time prior to his doing so in court at the time of trial.
*395On redirect examination the state asked Needham in connection with a statement that he had furnished the police, “[W]ere you at any time promised any favors or any type of treatment? Or were you threatened by them in any shape or form?” Needham answered: “No.” On recross-examination the defendant sought to introduce as a prior inconsistent statement a transcript of that portion of Needham’s probable cause testimony where he stated that the police “made” him identify the defendant. The trial judge, who had also presided at the probable cause hearing and heard Need-ham’s original testimony, concluded that the word “made” in the context used by Needham did not connote a threat but was simply Needham’s way of describing the next step in the police procedures. The trial court therefore concluded that the statement was not inconsistent and sustained the state’s objection to the introduction of the transcript.
“While it is clearly proper to attack a witness’ credibility by evidence of his materially inconsistent statements; State v. Vega, 163 Conn. 304, 307, 306 A.2d 855 [1972]; State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 [1964], cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 [1965]; this can only be done if the court is satisfied that the prior statements are in fact inconsistent. State v. Chesney, 166 Conn. 630, 636, 353 A.2d 783 [cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974)]; 3A Wigmore, Evidence (Chadbourn Rev.) § 1040.” State v. Reed, 174 Conn. 287, 302-303, 386 A.2d 243 (1978). “In determining whether an inconsistency actually exists, the testimony of the witness as a whole, or the whole impression or effect of what has been said, must be examined.” State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). In examining the context in which Needham made this remark; see footnote 3, *396supra; one can reasonably conclude that he was conveying the notion that identifying the defendant through examination of photographs was simply the next step in the police procedures in which he participated, rather than the notion that Needham was forced into identifying the defendant. Such reasoning, within this context, is empirically sound and clearly falls within the broad discretion reposing in the trial court in such instances.
V
The defendant next claims that the trial court unduly emphasized his interest in the outcome of the case by mentioning it on three separate occasions in the charge to the jury.4 The defendant took no exception to these portions of the charge; see Practice Book § 315; but now argues that we should review this claim under the bypass rule established in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
“We have treated the basic claim that specific mention of the defendant’s interest infringes upon his right *397to a fair trial as falling within the claimed deprivation of a ‘fundamental constitutional right’ . . . [and] [w]e must, therefore, examine the nuances of language, belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial.” State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985). Specifically, the defendant claims here that the trial court’s three references to the defendant’s interest in the outcome of the case were not “[evenhanded] in referring to the defendant’s interest as compared with that of other witnesses.” State v. Mack, supra, 638. This simply is not so. In each instance the trial court prefaced its remarks concerning the defendant’s interest in the outcome with comments such as: (1) “[Y]ou should apply the same principles by which the testimony of other witnesses are tested”; (2) the accused “is entitled to the same consideration and must have his testimony measured in the same way as any other witness . . .”; and (3) “you should apply the same test to it as you did with the other witnesses . . . .” The continual emphasis was that the jury was to evaluate the defendant’s testimony in the same fashion as the testimony of the other witnesses. We have repeatedly approved the use of similar language and we do not find its use here unduly repetitive or transcending the bounds of even-handedness. State v. Mack, supra, 637-38; State v. Avcollie, 188 Conn. 626, 637, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).
VI
The defendant finally claims that the trial court erred in its charge to the jury on the standard of proof to be used in evaluating circumstantial evidence. The trial court stated: “[Y]ou can infer one fact from a finding of another fact, only if that first fact is found to be established beyond a reasonable doubt. And also, that *398that finding enables you to conclude beyond a reasonable doubt that the second fact also exists .... Of course, in passing upon the guilt of an accused person on the basis of circumstantial evidence you must be satisfied beyond a reasonable doubt, first that certain facts or circumstances exist; and second, the existence of those facts or circumstances do beyond a reasonable doubt lead you to the conclusion that the crime was committed by the accused.” While we agree that this statement concerning circumstantial evidence was partially in error, its effect was to increase the burden of proof required by the state to prove the defendant guilty and had, therefore, no prejudicial effect in this instance.
“It is axiomatic that the state’s burden of proof beyond a reasonable doubt applies to each and every element comprising the offense charged. But this burden of proof does not operate upon each of the many subsidiary, evidentiary, incidental or subordinate facts, as distinguished from elements or ultimate facts, upon which the prosecution may collectively rely to establish a particular element of the crime beyond a reasonable doubt. . . . Where the prosecution must rely upon circumstantial evidence, either in part or in whole, each link in the chain of circumstantial evidence need not be established beyond a reasonable doubt.” State v. McDonough, 205 Conn. 352, 362-63, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).
As worded, the charge in the instant case could have left the jury with the impression that the state must establish each predicate or subsidiary fact beyond a reasonable doubt, thereby substantially increasing the burden of proof imposed upon the state. “The state might well have complained that such a charge imposed a far greater burden upon it than the standard requirement that only the inference of guilt as to each element of *399the crime, as distinguished from the totality of the subordinate facts from which the inference is to be drawn, need be proven beyond a reasonable doubt.” State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989). The defendant argues, however, that the challenged instructions placed an unconstitutional burden on him to prove beyond a reasonable doubt the inferences upon which he relied in his defense. The defendant claims that the trial court misled the jury as to the standard of proof required of him because of the charge’s faulty language concerning circumstantial evidence. We disagree for two reasons.
First, the trial court gave its charge upon circumstantial evidence as part of its general charge concerning the state’s burden of proof. The trial court stated at that time: “The burden then is on the state to prove an accused guilty of the crime or crimes with which he is charged. An accused does not have to prove his innocence. That means that the state must prove every element necessary to constitute the crime as charged as I shall explain to you in just a moment. It is not enough for the state to prove certain elements because if proof of even one element is lacking you have to find the accused not guilty as to that particular crime charged. The state in other words can sustain the burden resting on it only if the evidence before you establishes the existence of every element constituting the crime charged beyond a reasonable doubt.” As between the state and the defendant, this language left no doubt as to who had the burden of establishing the defendant’s guilt.
Second, the defendant never relied on circumstantial evidence in crafting his defense. The defendant’s theory of the case was that he was present on Sixth Street when the shootings occurred, but he was in no way associated with the individuals who committed the crime. He did not ask the jury to infer anything. He *400sought to have the jury believe his direct testimony that he was not the perpetrator. This is not a situation in which an accused who has raised a defense, such as intoxication or insanity, relies upon circumstantial evidence as a basis for drawing inferences that may raise a reasonable doubt as to his guilt. Thus, the erroneous instruction here was simply inapplicable to any claim being made by the defendant.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-54c provides: “felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable *387ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
On July 23, 1990, in apparent response to the defendant’s motion for a bill of particulars, the state filed a long form information and stated to the trial court that it provided the defendant with “all the information that he is seeking.” While it is arguable that the information did not supply all the information that was requested in the bill of particulars, the defendant has not pursued this issue on appeal as no objection or exception was taken at the time of trial.
The witness’ response occurred in the context of the following colloquy during cross-examination at the probable cause hearing:
“Q. Did you provide the police with information . . . that name that you mentioned; Floyd?
“A. Yeah.
“Q. And after you provided the police officers with the name of Floyd, what, if anything, did they do with that name? ... In your presence? That you saw with your own eyes and heard with your own ears: what, if anything, did they do with the name, Floyd?
“A. They made me identify him.
“Q. They made you identify him. Where?
“A. At the station.
“Q. At the station. How?
“A. They showed me pictures.
“Q. They showed you pictures. How many?
“A. One or two.” (Emphasis added.)
Specifically, in assessing the defendant’s testimony, the trial court stated: “In weighing the testimony of an accused person obviously you should apply the same principles by which the testimony of other witnesses are tested. And that necessarily involves a consideration of his interest in the outcome of the ease. Now an accused person having taken the witness stand stands before you then like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness including however his interest in the verdict which you are asked to render.” (Emphasis added.) The trial court further stated: “You are not to disregard the evidence of this accused merely because he was convicted of other crimes. You must weigh the testimony and consider it along with all the other evidence in the case; and you may take into account of course all the evidence that you find to be credible on his part. And the testimony that he has offered to you should be given the same considerations; and you should apply the same test to it as you did with the other witnesses in the course of this trial, including however, consideration of his interest in the outcome of the case.” (Emphasis added.) | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841957/ | Berdon, J.
The sole issue in this appeal is whether a criminal defendant who agrees to plead guilty to certain charges in consideration of the state’s promise to recommend a sentence that is below the statutory maximum, while reserving the right to argue for a lesser sentence, has entered into a “plea agreement” within the meaning of General Statutes § 51-195.1 Under *402§ 51-195, if the trial court imposes a sentence that was negotiated as part of a “plea agreement,” the defendant is not entitled to have the sentence review division of the Superior Court review the imposed sentence. In this case, the Appellate Court held that because the defendant’s agreement with the state was a “plea agreement” within the meaning of the relevant exception contained in § 51-195, he was not entitled to sentence review. State v. Anderson, 23 Conn. App. 564, 571, 583 A.2d 142 (1990). We conclude that the Appellate Court’s decision is contrary to our holding in Staples v. Palten, 214 Conn. 195, 571 A.2d 97 (1990), and we reverse the judgment of the Appellate Court.
The relevant facts are as follows. The defendant, Byron Anderson, was originally charged in an eleven count information for an incident that occurred in Bristol in the early morning hours of January 1,1986. The defendant entered pleas of not guilty to these charges. On January 21,1987, the state filed a substitute three count information charging the defendant with one count of sexual assault in the first degree, one count of burglary in the second degree, and one count of sexual assault in the third degree, in violation of General Statutes §§ 53a-70 (a), 53a-102 (a), and 53a-72a (a) (l)2 *403respectively. That same day, the defendant withdrew his prior pleas and entered pleas of guilty to the counts of sexual assault in the first degree and burglary in the second degree, and entered an Alford3 plea to the count of sexual assault in the third degree.
The defense attorney informed the trial court, Kline, J., that the state intended to recommend a twenty year sentence. He also told the court that the defendant had retained the right to argue for a lesser sentence. At his sentencing, the defendant argued for a ten year period of incarceration. Nevertheless, the trial court, Susco, J., sentenced the defendant to a term of twenty years for the charge of sexual assault in the first degree, and to concurrent terms of five years each on the remaining two charges, for a total effective sentence of twenty years.
The defendant appealed his conviction to the Appellate Court claiming that: (1) the trial court failed to provide him with notice of his statutory right to sentence review; and (2) his guilty pleas were unconstitutional because the trial court failed to inform him that he was facing a mandatory minimum, nonsuspendable sentence on the charge of sexual assault in the first degree. The Appellate Court affirmed the defendant’s conviction. We granted the defendant’s petition for certification limited to the issue of whether the agreement he had entered into with the state constituted a plea agreement within the meaning of § 51-195, so that the defendant was not entitled to a review of his sentence.
*404Under § 51-195, any person sentenced to serve a prison term of three or more years is entitled to have written notification on the day of sentencing of the right to file within thirty days a petition seeking sentence review. The statute provides for three exceptions where sentence review is not allowed: “[1] in any case in which a different sentence could not have been imposed or [2] in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or [3] in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement.” The present appeal concerns the second exception to the statutory right of sentence review.
At the outset, we recognize that there are two principles of statutory construction that we must consider when construing the meaning of “plea agreement” in the exception to § 51-195. First, “[remedial statutes are to be liberally construed in favor of those whom the legislature intended to benefit.” Hinchliffe v. American Motors Corporation, 184 Conn. 607, 615 n.4, 440 A.2d 810 (1981), citing Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973). Second, “ ‘[w]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent.’ ” Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937), citing Bickart v. Sanditz, 105 Conn. 766, 772, 136 A. 580 (1927); State v. Turello, 183 Conn. 330, 335, 439 A.2d 364 (1981). In Staples v. Palten, supra, 200, we stated that § 51-195 is a remedial statute because its purpose is to curb the ill effects stemming from wide judicial discretion in sentencing prisoners for similar offenses.4 Thus, the statute is to be construed liberally in favor of its intended beneficiaries, the prisoners seek*405ing review of their sentences, and any exception from sentence review eligibility is to be construed strictly. Id., 199-200.
We have defined the meaning of “plea agreement,” as used in the exceptions in § 51-195, as “an agreement encompassing a sentence of a specific term of years.” Staples v. Patten, supra, 200. In Staples, the defendant agreed to plead guilty to a substitute three count information. The state and the defendant agreed that no specific sentence would be recommended to the trial court. At sentencing, the state argued for incarceration and the defendant argued for a lesser sentence than he actually received. The defendant was sentenced to a total effective sentence of six years. On appeal, the defendant successfully argued that the sentence review division incorrectly dismissed his application for sentence review. In Staples, we held that because the defendant had not agreed to a “specific term of years” he was not excluded from sentence review under the “plea agreement” exception.
In the present case, the Appellate Court held that the defendant’s agreement to plead guilty and to be exposed to a maximum twenty year sentence was of “sufficient specificity to constitute a ‘plea agreement’ and thus made him ineligible for sentence review.” State v. Anderson, supra, 571. The Appellate Court incorrectly distinguished the facts of this case from those in Staples. The Appellate Court noted that in Staples, the maximum sentence that the defendant was exposed to was set by statute. In the present case, however, the plea agreement set a twenty year maximum prison term, or “cap,” to which the court could sentence the defendant and stay within the boundaries of the agreement between the parties. We are not persuaded by the court’s distinction for the reasons set forth below.
*406First, the Appellate Court’s holding suggests that because the defendant knew that the state intended to recommend a twenty year sentence, he implicitly agreed to be sentenced to twenty years. This is incorrect because it ignores the fact that the defendant specifically reserved the right to argue for a lesser sentence.5 A defendant who reserves the right to argue for a lesser sentence anticipates that he may be able to persuade the court to impose a lesser sentence than that which the state is recommending. Here, the defendant was not only hoping to receive a lesser sentence, but he did, in fact, argue for a ten year incarceration. The only effect of the state’s recommendation of the twenty year sentence was that it set a maximum number of years to which the trial court could have sentenced the defendant.
Second, the Appellate Court did not properly take into account the wide discretion that was left to the trial court in the present case. Each party agreed to argue for a sentence that each believed was appropriate. Because there was no agreement for a specific term of years, the trial court could have sentenced the defendant to one year, the minimum sentence for sexual assault in the first degree, or to twenty years, the “cap” set by the state’s agreement with the defendant, or to anything between one year and twenty years. The nineteen year range of possible sentences that was left to the court’s discretion did not amount to an agreement for a “specific term of years.”6
*407We conclude that a “plea agreement,” for the purpose of excluding sentence review under § 51-195, requires that the defendant and the state’s attorney agree to a recommendation of a specific term of years of incarceration, without a reservation by the defendant of the right to argue for a lesser sentence. Any reservation of the right to argue for a lesser sentence affords the court the very discretion that the statute intended to monitor.
The judgment of the Appellate Court is reversed in part and the case is remanded to the Appellate Court with direction to remand the case to the trial court with the instructions that the defendant be given the notice required by § 51-195 and that the defendant be allowed to file an application for sentence review within thirty days of his receipt of such notice.
In this opinion Peters, C. J., and Borden, J., concurred.
General Statutes § 51-195 provides in pertinent part: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a *402request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. . . .” (Emphasis added.)
General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.”
General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”
General Statutes § 53a-72a (a) (1) provides: “A person is guilty of sexual assault in the third degree when such person (1) compels another person *403to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person.”
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), provides that a criminal defendant may submit to being punished as if he were guilty of the crime charged without expressly admitting his guilt. State v. Amarillo, 198 Conn. 285, 314 n.17, 503 A.2d 146 (1986).
For a more thorough discussion of the historical background of General Statutes § 51-195, see State v. Nardini, 187 Conn. 109, 118-19, 445 A.2d 304 (1982).
The defendant’s attorney stated to the trial court, Kline, J., that “[m]y client knows that each side is free to argue for whatever sentence they feel is appropriate. The State’s Attorney has told me, and I’ve told Mr. Anderson, that State’s Attorney Carlson intends, at the time of sentencing, to ask for a 20-year sentence. And my client is aware of that, and he's aware that I have the right to ask for a lesser sentence.”
Also, we are not persuaded by the state’s argument that the present case is distinguishable from Staples v. Palten, 214 Conn. 195, 571 A.2d 97 (1990), because here, unlike Staples, there is a “causal connection” between *407the sentence the defendant received and the twenty year maximum sentence the court could have imposed. The state argued that without the agreement, the defendant was exposed to a maximum of thirty-five years had he been sentenced to serve consecutive terms for each offense. The state argued that any time there is a “causal connection” between the maximum sentence agreed to and the sentenced imposed, the agreement falls within the “plea agreement” exception to the statute. The state’s distinction ignores the purpose of the statute, which is to monitor unfettered trial court sentencing discretion. In light of the appropriate construction of remedial statutes, any exception to the statute must be strictly construed. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841958/ | Callahan, J.,
with whom Covello, J., joins, dissenting. I joined Justice Healey’s dissenting opinion in Staples v. Palten, 214 Conn. 195, 201, 571 A.2d 97 (1990), and believe that the reasoning of that opinion is equally applicable to this case. I respectfully dissent. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841959/ | Glass, J.
After a jury trial, the defendant, Shawn Henning, was convicted of felony murder in violation of General Statutes § BSa-Mc.1 The trial court sentenced the defendant to a term of fifty years, and this appeal followed.
On appeal, the defendant claims that the trial court improperly: (1) denied his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that the defendant was guilty of felony murder in violation of General Statutes § 53a-54c; and (2) failed to charge the jury on burglary in the third degree2 as a lesser offense included in the charge of felony murder. We affirm the judgment of conviction.
The jury could reasonably have found the following facts. During the early morning hours of November 29, 1985, the defendant and two companions, Ralph *419“Ricky” Birch and Tina Yablonski, stole a 1973 brown Buick Regal from an automobile repair shop in Brook-field. That evening, they drove the Buick to New Hampshire. The Buick was damaged and its muffler was lost in New Hampshire. Due to the loss of the muffler, the car’s engine was very loud.
On Sunday, December 1,1985, the defendant, Birch and Yablonski drove the Buick from New Hampshire to Danbury. They arrived in Danbury in the early evening and went to the residence of a friend, Douglas Stanley. While at Stanley’s residence, the defendant and Yablonski “freebased” cocaine. The defendant, Birch and Yablonski left Stanley’s apartment between 11:10 and 11:20 p.m. and drove to New Milford in the Buick. The defendant and Birch dropped off Yablonski at her home on Aspetuck Road at approximately 11:55 p.m. The defendant and Birch drove to a residential area approximately two miles away, driving north on Aspetuck Avenue to its intersection with Marwick Manor.3 They turned into Marwick Manor and parked the car between 12:10 and 12:30 a.m. on December 2. The defendant and Birch then walked a short distance to the house at 74 Aspetuck Avenue, on the corner of Aspetuck Avenue and Marwick Manor. They entered the house through the back door, which was unlocked. Everett Carr, a sixty-five year old man who lived with his wife and daughter, was alone in the house. Carr’s wife was out of town and his daughter had gone out for the evening at approximately 9:30 p.m. Carr encountered the defendant and Birch in the hallway adjacent to the kitchen on the first floor. A struggle ensued, and either the defendant or Birch went to the kitchen and obtained a carving knife. During the continued struggle, Carr was stabbed repeatedly, which resulted in his death. The defendant and Birch then *420searched the house for valuables, taking some jewelry, a videocassette recorder and several other small items. They left the house and drove away in the Buick between 12:30 and 1 a.m. The defendant and Birch returned to the defendant’s home in New Milford between 2 and 4:20 a.m. Carr’s daughter discovered her father’s body when she returned home between 4 and 4:30 a.m. on December 2.
I
The defendant’s principal claim on appeal is that the evidence was insufficient to sustain the jury’s verdict finding him guilty of felony murder in violation of General Statutes § 53a-54c. This court has consistently employed a two-part analysis in reviewing a challenge to the sufficiency of the evidence. State v. Famiglietti, 219 Conn. 605, 609-10, 595 A.2d 306 (1991). We first review the evidence in the light most favorable to sustaining the guilty verdict. State v. Tweedy, 219 Conn. 489, 500, 594 A.2d 906 (1991). We then determine, upon the facts thus established and the inferences reasonably drawn therefrom, whether any rational trier of fact could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. Id. “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. Id.
In undertaking the foregoing analysis, the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence. *421State v. Grant, 219 Conn. 596, 600, 594 A.2d 459 (1991); State v. Tweedy, supra. “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). After a review of the record, we conclude that the jury could reasonably have determined that the cumulative effect of the evidence was sufficient to establish beyond a reasonable doubt that the defendant committed the crime of felony murder.
The defendant specifically claims that: (1) the lack of scientific or forensic evidence prevented the state from meeting its burden of proof; (2) his actions in the days following the crime were more consistent with innocence than with guilt; and (3) statements he made to his grandmother and a friend in the months after the crime were consistent with his innocence. Viewing the evidence in the light most favorable to upholding the verdict, as we must, we conclude that the evidence was sufficient.
The defendant first focuses on the lack of forensic or scientific evidence in the state’s case. Since direct and circumstantial evidence have equal probative value, however, the absence of forensic or scientific evidence does not make the evidence insufficient per se. State v. Grant, supra, 600. A review of the record reveals the following evidence: First, two distinct sets of footwear imprints in the blood of the victim were found at the scene of the stabbing. There was uncontroverted expert testimony from Henry C. Lee, M.D., director of the state forensic laboratory, that the imprints were made during a struggle before the victim collapsed to the floor. The same two imprints were tracked in the victim’s blood into areas of the house where items of personal property were missing. In addition, the defendant’s former girlfriend, Tina Yablonski, testified that the defendant and Birch drove in the direction of *422the victim’s house shortly before a very loud car was heard pulling into Marwick Manor, a few hundred feet from the victim’s house. The testimony of two Marwick Manor residents supported Yablonski’s testimony regarding the direction from which the car arrived.4 The two residents heard the car park on Marwick Manor, and then heard it start up again approximately one half hour later. One witness testified that he heard the car “speed” up the hill when it drove away and that it was out of sight within the one minute it took him to get to the window. When viewed in conjunction with the other evidence presented, the foregoing evidence, while largely circumstantial, was ample to support the jury’s verdict.
The defendant next contends that his actions in the days immediately following the crime are more consistent with innocence than with guilt. “ ‘[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. . . . State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Foord, [142 Conn. 285, 294, 113 A.2d 591 (1955)].’ State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985).” State v. Grant, supra, 604. The jury may draw such inferences from the evidence or facts established by the evidence as it deems to be reasonable and logical. Id. The jury reasonably and logically could have inferred the defendant’s consciousness of guilt from his actions and statements to police after the murder.
Tina Yablonski testified that she, the defendant and Birch had two discussions about the murder during *423which the defendant expressed concern about being a suspect.5 The defendant agreed to go along with a fabricated story regarding the group’s movements during the late evening hours of December 1 and the early morning hours of December 2,1985.6 During these discussions, the defendant told Birch and Yablonski that they all had to “get [their] stories straight.”7 The defendant told the story agreed upon to state police detective Patrick McCafferty on December 4, 1985.
On December 5, 1985, the defendant hid the Buick in heavy underbrush near the reservoir in New Milford. After the police, with Birch in the car, encountered the defendant walking on a nearby road, he led them to where the car was hidden. Later that day, the defendant spoke with state police detective Scott O’Mara, and claimed that he had not told McCafferty about the car on December 4, because the car was stolen. The defendant told O’Mara that he, Birch and Yablonski had left Stanley’s apartment in Danbury on the morning of December 2, 1985, between 12:30 and 2:30 and had driven to Yablonski’s house. He said that he and Birch had then gone to either his father’s house or the reservoir.8 O’Mara testified that, when he showed the defendant a picture of the victim, the defendant indicated that he recognized the victim because of his *424tattoos, even though no tattoos were visible in the photograph. The defendant said he might have passed the victim on the street. When asked to theorize about what had happened, the defendant referred to the manner of the victim’s death, despite not having been informed of it by O’Mara.9
On December 9, 1985, the defendant again spoke with McCafferty. McCafferty confronted the defendant with the conflict between his account of when he, Birch and Yablonski had left the Stanley residence and the account of Effie Coates, the woman who lived with Douglas Stanley. According to McCafferty, the defendant then said: “I have to remember where I was. I know I was with Ricky and Tina.” McCafferty also testified that the defendant’s leg began to shake violently when McCafferty told him that residents at Marwick Manor had heard the Buick on the night of the murder and that the police knew where he had parked and turned around. According to McCafferty, the defendant then stated that he, Birch and Yablonski may have turned around in the victim’s driveway. When McCafferty inquired how the defendant had entered the victim’s house, the defendant responded: “Tina and I did not go into the house.” McCafferty then asked the defendant whether he was saying that Birch had entered the house, to which the defendant responded that McCafferty would have to ask Birch. Finally, the defendant twice denied having killed anyone. From the evidence of the defendant’s actions and statements to police after the crime, including the defendant’s own testimony, the jury was entitled to infer consciousness of guilt and firsthand knowledge of the murder.
Finally, the defendant asserts that statements he made regarding the crime to his grandmother and a *425friend do not support his conviction. The jury heard testimony from the defendant’s grandmother, Mildred Henning, and a friend, Timothy Saadloff, regarding statements the defendant made to them after the crime. Mildred Henning testified that she had received a telephone call from the defendant in early 1986 during which he told her that he was in trouble, that there had been a burglary and an “old man” had been killed. The defendant told her that he was at the scene of the crime but that he did not kill the victim and that someone else had participated in the burglary.10 She said that the defendant had sounded upset and that they both had cried. Mildred Henning also testified regarding a subsequent conversation she had with the defendant in August, 1987. She testified that, during that conversation, the defendant had rescinded what he had told her previously, saying that he had never told her about the crime. He said that what he had told her earlier was only what the police had alleged against him.
Timothy Saadloff, who described himself as the defendant’s best friend, testified that he had received a telephone call from the defendant sometime in 1986. The defendant said that he was in a “little bit of trouble.” He told Saadloff that he and a friend had broken into a house, and had surprised the man who lived there, who they thought was not at home. The defendant told Saadloff that the man had been murdered, but that he did not do it and that his friend had done it. Saadloff recalled that the defendant had used the word “stabbing” when referring to how the man had been killed.
*426The testimony of Mildred Henning and Timothy Saadloff was an integral part of the state’s case. While both witnesses testified that the defendant had denied committing the actual killing, the jury could reasonably have inferred from his statements to these witnesses that the defendant was present at the scene of the crime and participated in the burglary. This evidence, when viewed together with all of the evidence presented against the defendant, is sufficient to sustain the jury’s verdict finding the defendant guilty of felony murder beyond a reasonable doubt.
II
The defendant next claims that the trial court improperly failed to charge the jury on burglary in the third degree as a lesser offense included in the charge of felony murder.11 The information filed by the state charged the defendant with two separate crimes: felony murder in violation of General Statutes § 53a-54c, and burglary in the second degree in violation of General Statutes § 53a-102.12 At the close of the evidence, the defendant filed a written request to charge with the *427trial court, requesting that the court instruct the jury-on burglary in the third degree as a lesser included offense of burglary in the second degree.13 The trial court found that the state had failed to present sufficient evidence that the entering or remaining unlawfully in a dwelling occurred at night, and, therefore, did not submit to the jury the second count of the information charging the defendant with burglary in the second degree. The court instructed the jury only as to the felony murder count of the information, instructing on burglary in the third degree as the underlying felony. The defendant did not request a charge on burglary in the third degree as a lesser included offense of felony murder, and took no exception to the charge as given by the trial court.
Since the defendant neither requested an instruction on burglary in the third degree as a lesser included offense of felony murder nor took an exception to the trial court’s charge, this court is not bound to review the defendant’s claim.14 For the purposes of this appeal, however, we will treat the issue as properly raised below. We conclude that the requested instruction does not survive the test set forth in State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980).
*428“ ‘When we are reviewing a trial court’s failure to charge as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” . . . ’ State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).” State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990). Under State v. Whistnant, supra, 588, a defendant is entitled to an instruction on a lesser included offense only if four conditions are met: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” A review of the record reveals that the defendant was not entitled to a jury instruction on burglary in the third degree as a lesser included offense of felony murder because the fourth condition of Whistnant was not satisfied.
We need spend little time on the first three conditions of the Whistnant test. We will assume, for the purposes of this analysis, that the first condition has been satisfied. It is clear from the information15 that *429the defendant could not have committed felony murder without having committed burglary, and, thus, the second condition is also satisfied. Finally, a review of the record reveals some evidence that would justify conviction of the lesser offense, and, therefore, the third condition has been met.16
The fourth condition is the critical factor in the present case. We must first differentiate the elements of burglary in the third degree from those of felony murder, and then determine if these elements were sufficiently in dispute to permit the jury consistently to find the defendant innocent of felony murder but guilty of burglary. State v. Whistnant, supra, 588. General Statutes § 53a-54c, which defines felony murder, provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits . . . burglary . . . and, in the course of and in furtherance of such crime ... he, or another participant, if any, causes the death of a person other than one of the participants . . . .” Burglary in the third degree is defined in General Statutes § 53a-103 as “entering] or remaining] unlawfully in a building with intent to commit a crime therein.” Since felony murder, as defined in § 53a-54c, includes the crime of burglary, the only elements that differentiate burglary from felony murder are indicated by the language, “in the course of and in furtherance of such crime . . . he, or another participant, if any, causes the death of a person other than one of the participants.”
*430The state presented uncontroverted evidence that the death of Everett Carr was caused during the course of and in furtherance of a burglary by one or more of the participants in the burglary. There was evidence of two distinct sets of footwear imprints in the blood of the victim made during a struggle before the victim collapsed. The injuries sustained by the victim indicated a struggle with one or more assailants. Both footwear imprints were tracked in the victim’s blood into rooms where items of personal property were missing, and blood was found on articles of clothing and a dresser drawer. In addition, the defendant’s grandmother testified that the defendant had admitted to her in early 1986 that he had been present at a burglary in which an “old man” had been killed. Finally, Timothy Saadloff testified that the defendant had told him in 1986 that he had participated in a burglary, in which a man was stabbed to death by the defendant’s friend.
In State v. Morin, 180 Conn. 599, 602, 430 A.2d 1297 (1980), the defendant was charged with felony murder, and he requested a lesser included offense instruction on burglary or robbery in the first degree. The only issue that was arguably in dispute was the cause of death of the eighty year old victim, who died more than four months after the defendant had severely beaten him while robbing him in his home. Id., 605. This court found that, despite the time lapse between the injuries inflicted by the defendant and the victim’s death, the evidence, when viewed in the light most favorable to the defendant, supported the jury’s conclusion that the victim’s death was caused by the defendant in the course of a burglary or robbery. Id., 609. Thus, the jury could not consistently have found the defendant guilty of the lesser crimes of robbery or burglary and not guilty of felony murder. Id.
In the present case, the causal link between the burglary and the victim’s death was more direct than it *431was in Morin and is undisputed by the defendant. The evidence presented by the state was controverted only by the defendant’s trial testimony that he did not participate in either the burglary or the murder. The jury thus had before it evidence that indisputably showed a killing committed in the course of a burglary and sufficient evidence implicating the defendant in the burglary, on the one hand, and the defendant’s testimony that he was not present, on the other. The jury was entitled to disbelieve the defendant’s testimony.
Participation in the underlying felony is sufficient to sustain a conviction of felony murder.17 Viewing the evidence in the light most favorable to the defendant, there was simply no evidence to allow the jury consistently to find that the defendant had participated in the burglary but was innocent of the felony murder charge. Since the elements that differentiate burglary from felony murder were thus not sufficiently in dispute, the defendant has failed to satisfy the fourth condition of State v. Whistnant, supra. We therefore conclude that the defendant was not entitled to a jury instruction on burglary in the third degree as a lesser included offense of felony murder.
The judgment is affirmed.
In this opinion Shea, Callahan and Covello, Js., concurred.
“[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit . . . burglary . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”
“[General Statutes] Sec. 53a-103. burglary in the third degree: CLASS D felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.
“(b) Burglary in the third degree is a class D felony.”
Testimony at the trial indicated that Aspetuck Road and Aspetuck Avenue are distinct roads.
Two witnesses, Alice Kennel and Brian Church, heard the car pull into Marwick Manor from their second floor bedrooms at 16 and 68 Marwick Manor, respectively. Kennel described the car as “terribly noisy,” while Church referred to a “very loud” muffler sound.
According to Yablonski, on one of these occasions the defendant said: “What if we get caught? What if they suspect us?”
The defendant, Birch and Yablonski agreed to tell the police that they had left Douglas Stanley’s apartment in Danbury between 12:30 and 1 a.m. on December 2, 1985, and had hitchhiked from there to New Milford. In his trial testimony, the defendant admitted that he had agreed to tell a false story to the police, and that he had in fact done so.
The defendant admitted having said words to this effect.
The defendant told a different story at trial. He testified that, after leaving the Stanley residence in Danbury at approximately 11:30 p.m., he, Birch and Yablonski stopped for approximately forty-five minutes to smoke cocaine. After the defendant and Birch drove Yablonski to her house, they drove to two different locations in New Milford to siphon gas. They then returned to the defendant’s father’s house.
The defendant told O’Mara that he thought someone had interrupted a burglary and that it would have been sufficient to knock out the victim rather than “slice” him.
The defendant’s grandmother testified that the defendant had told her that there was a dog in the area where the man was killed. She recalled the defendant saying during the early 1986 conversation that the dog had been killed. A dachshund, belonging to the victim’s daughter, was in the house on the night of the crime but was apparently unharmed. In light of the substantial other evidence against the defendant, this inconsistency between the defendant’s statement and the facts does not affect the overall sufficiency of the evidence.
The defendant raises two additional claims, both of which relate to the claim for a lesser included offense charge. First, the defendant claims that alibi should be treated as a defense, and that there was sufficient evidence of alibi presented to require a jury charge regarding lesser included offenses to felony murder. Second, the defendant asserts that the trial court erred by failing to remedy its error during the defendant’s postverdict motion for acquittal. The defendant claims that the trial court should have remedied its error by acquitting him of the felony murder charge and finding him guilty of burglary in the third degree. The defendant abandoned the foregoing claims at oral argument. Moreover, since we find that the trial court properly omitted the lesser included offense instruction, these claims must necessarily fail.
“[General Statutes] Sec. 53a-102. burglary in the second degree: class c felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.
“(b) Burglary in the second degree is a class C felony.”
The relevant portion of the defendant’s request to charge read as follows: “3. LESSER INCLUDED OFFENSES. If you find that the State has proven beyond a reasonable doubt that the accused entered or remained unlawfully in the premises with the intent to commit a crime therein, but do not find that the entry or remaining unlawfully took place at night beyond a reasonable doubt then you shall determine whether the accused committed the crime of burglary in the third degree.”
Pursuant to Practice Book § 4185, this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” In criminal cases, this section does not bar review where a defendant claims, and this court finds, denial of a “fundamental constitutional right and a fair trial.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); see also State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). No such claim was raised in the present case.
The first count of the information alleged that “at the Town or City of New Milford on or about 9:30 p.m. on December 1,1985, and 4:30 a.m. on December 2, 1985, the said Shawn Henning acting with another person, to wit: Ralph ‘Ricky’ Birch committed and attempted to commit burglary at 74 Aspetuck Avenue, New Milford and in the course of and in furtherance of such burglary or in flight therefrom, the said Shawn Henning or Ralph ‘Ricky’ Birch did cause the death of another person not a participant in the crime, to wit: Everett Carr in violation of Connecticut General Statutes § 53a-54c.”
Evidence that would justify a conviction of burglary in the third degree includes: (1) the testimony that a very loud car driving north on Aspetuck Avenue pulled up and parked near the Carrs’ residence between 12:10 and 12:30 a.m. on December 2,1985, and drove away approximately thirty minutes later; (2) evidence that items of personal property were missing from the Carrs’ house; and (3) the defendant’s statements to Mildred Henning and Timothy Saadloff, in which the defendant admitted participating in a burglary at which a man was killed.
Participation in the underlying felony may not be enough to sustain a conviction, when a defendant, who was not the only participant in the underlying felony, asserts the affirmative defense that he “(A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.” General Statutes § 53a-54c. This statutory defense was not raised by the defendant in the present case. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841960/ | Berdon, J.,
concurring. I agree with the majority that the judgment of felony murder should be affirmed. I, however, disagree with the majority’s consideration of whether there was sufficient evidence to instruct the jury on the lesser included crime of burglary in the third degree. Whistnant makes clear that to be entitled to a jury instruction on a lesser included offense, the party seeking the charge (either the state or the defendant) must request such an instruction. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). In this case the majority correctly points out the “defendant neither requested an instruction on burglary in the third degree as a lesser included offense of felony murder nor took an exception to the trial court’s charge. . . .” Preclusion of a claim of ineffective assistance of counsel, if that be the purpose of the majority in reviewing the merits of the claim, should be left to another day in another forum. Accordingly, I concur in the result. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7841961/ | Peters, C. J.
In this action for breach of a commercial construction contract, the principal issue is whether *435the trial court, in its evidentiary rulings and its instructions to the jury, assigned proper weight to the terms of three contracts consecutively negotiated by the parties. The appeal arises out of two lawsuits that were consolidated for trial. The first was an action brought by the plaintiffs, John T. Brady and Company (contractor), and its surety and assignee, Federal Insurance Company (surety), to recover the unpaid portion of the contract price and the price of certain alleged contract extras from the defendant, the Connecticut Urban Redevelopment Commission of the city of Stamford (owner).1 The second was an action brought by the owner and Rich-Taubman Associates (redeveloper) to recover damages from the contractor and the surety because of the contractor’s alleged failure to comply with contract specifications in timely fashion. The jury found in favor of the contractor and the surety in both actions, awarding them jointly $2,612,098.84 plus interest in the amount of $1,456,520.49. Following the trial court’s denial of motions by the owner and the redeveloper to set aside the verdict and for judgment notwithstanding the verdict, the owner and the redeveloper appealed to the Appellate Court and the surety and the contractor cross appealed. We transferred the appeals to this court in accordance with Practice Book § 4023 and now reverse.
The litigation arises out of a contract between the owner and the contractor, John T. Brady and Company, for the construction of a regional shopping center and garage known as the Stamford Town Center (the project). The contractor undertook to build a nine story parking garage and the shell of an adjacent enclosed shopping mall that the redeveloper was to complete and operate. The named surety and four reinsurance com*436panies issued a performance bond underwriting the performance of the contract. The owner and the contractor agreed on a contract price, as amended, of $36,014,993, of which the contractor has been paid $33,028,201.
Three interrelated contracts memorialized the agreement between the owner and the contractor. These contracts consisted of: the underlying construction contract, executed on December 19, 1978, prior to the commencement of construction; the settlement agreement, executed on September 28,1981, when the project was 94 percent complete; and the completion agreement, executed on June 1,1982, when the project was 99 percent complete.
The construction contract incorporated relevant drawings and specifications for the project, for which the owner agreed to pay the designated contract price. The contract stipulated that time was of the essence, set January 20,1981, as the date for completion of the project, and contained a clause liquidating damages in the amount of $3000 each day for any delay after the completion date.2 The contract defined substantial completion of the project as including the issuance of a final certificate of occupancy.3 Further, the contract indicated that the contractor would not be entitled to final payment until all of its work had been accepted by the owner.4
*437In order to resolve substantial disagreements about delay in the performance of the contract and responsibility for extra work, the parties negotiated a settlement agreement on September 28,1981, eight months after the completion date contained in the construction contract. The settlement agreement provided, inter alia, that: (1) the owner would pay the contractor $2,250,000; (2) the contractor immediately released the owner from all claims arising prior to that time; (3) the owner immediately waived any claim for liquidated damages until after January 20, 1982; (4) the owner agreed to waive its claim for actual damages due to delay, stipulated by the parties to amount to $800,000, if the contractor substantially completed the project by January 20, 1982; and (5) the parties agreed that the completion date could be extended under specified circumstances.
The project was not completed by the revised completion date of January 20,1982. Relying on the extension provision in the settlement agreement, the contractor maintained that this delay resulted from the absence of timely instructions and the issuance of belated change orders. Because the owner disagreed with the validity of these claims, it paid the contractor only $1,375,000 of the additional $2,250,000 promised in the settlement agreement, and refused to waive the $800,000 in actual delay damages stipulated in that agreement. The resultant financial difficulties led the *438contractor, in March of that year, to assign its contract rights to the surety, which thereupon began funding further work on the project.
On June 1, 1982, the owner, the contractor and the surety entered into the completion agreement. By the terms of that contract: (1) the surety agreed to finance the resumption of work on the project so that it could be completed by July 9,1982; (2) the owner agreed to waive any claim for delay damages sustained between the new completion date and the prior revised completion date of January 20,1982; (3) the owner agreed to pay $1,000,000 upon substantial completion of the project by the new completion date; (4) the surety agreed to obtain releases of mechanic’s liens; and (5) the owner agreed to make monthly progress payments. Like the settlement agreement, the completion agreement provided that the new completion date could be extended for reasons enumerated in the agreement.
The project was not completed on July 9,1982. Alleging that certain important work remained undone or unaccepted, and that mechanic’s liens had not been released, the owner withheld further payments. On August 19, 1982, the contractor sued to recover the unpaid contract price and an additional amount representing the cost of alleged extra work. The complaint also contained a count for prejudgment interest. This cause of action, with the surety replacing the contractor as the real party in interest, is the first of the lawsuits before us on this appeal.
Despite the lawsuit, work continued on the project, resulting in the issuance of a temporary certificate of occupancy on October 22,1982. Maintaining that it had completed its work on the project, the contractor left the work site on January 5,1983. The owner continued to insist that there were uncorrected defects in the contractor’s performance. When the surety refused a *439request for further corrective work, the owner engaged another contractor to complete the project. This aspect of the controversy between the parties was the basis for the second cause of action before us, a suit by the owner and the redeveloper to recover liquidated and actual damages because of the contractor’s delay in completing the project, and actual damages because of the contractor’s allegedly unsatisfactory performance of the contract, in the total amount of $3,225,907.14 above and beyond the remaining balance on the contract price. Like that of the contractor and the surety in the first case, the complaint of the owner and the redeveloper included a claim for prejudgment interest.
The trial of these consolidated causes of action began with jury selection in April, 1989. The trial itself began on July 5, 1989, and continued until April 24, 1990, when the jury returned its verdict. Because of the volume and complexity of the pleadings, the court and the parties had agreed that the pleadings would not go to the jury. The trial court had rejected requests for interrogatories filed on behalf of the surety, the owner and the redeveloper. The jury returned a single verdict in both cases, finding that the surety was entitled to $2,612,098.84 plus interest in the amount of $1,456,520.49. The parties stipulated that they would accept the mathematical calculation of the interest by the jury. The trial court, having earlier denied the owner’s request for a directed verdict, also denied posttrial motions by the owner and the redeveloper for a mistrial, to set aside the verdict, and for judgment notwithstanding the verdict. The present appeal ensued.
I
The appeal by the owner and the redeveloper challenges: (1) the sufficiency of the evidence adduced to support a verdict on the first cause of action, and hence the propriety of the trial court’s denial of the owner’s *440motions for a directed verdict and for judgment notwithstanding the verdict; (2) the trial court’s evidentiary rulings and jury charge concerning the effect of the release provisions in the settlement agreement; and (3) five other statements of law contained in the charge to the jury.5 We disagree with the first of these claims, but agree that the trial court made so serious an error in its evidentiary rulings that a new trial is required. We will consider other aspects of the trial court’s charge only to the extent that such discussion is necessary to guide the court at a new trial.
A
The owner contends that the surety was not entitled to recover the balance of the contract price because the construction contract conditioned a right to final payment on “completion and acceptance of all work required [under the contract and] . . . upon certification by the Engineer and approval by the Owner” after payment of all subcontractors. The contract defined substantial completion as including the issuance of a final certificate of occupancy. Relying on Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 477 A.2d 653 (1984), the owner asserts that noncompliance with these contractual conditions defeats the surety’s claim as a matter of law. On this theory, the owner maintains that the trial court improperly denied its motions for directed verdict and for judgment notwithstanding the verdict. We are unpersuaded.
“Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982)[;] Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). Our review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must *441consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986) . . . .” (Internal quotation marks omitted.) Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989).
In Multi-Service Contractors, Inc. v. Vernon, supra, 454, in contrast to this case, there was, on appeal, no factual dispute that delay in the contractor’s performance “was attributable to default on the part of the [contractor] rather than the [owner].” The only issue there was whether, despite its default, the contractor could avoid compliance with contractual conditions on its right to payment. We held that, “[i]n the absence of allegation or proof that the [contractor’s] noncompliance with the contract conditions was impracticable, or resulted from actions of the [owner] or its agents that were taken in bad faith, the [contractor had] failed to make out a case for equitable or restitutionary relief.” Id., 455. In this case, however, the surety maintains, and the jury impliedly found, that the owner’s conduct, including its withholding of payments, was a significant contributing factor in the problems encountered by the contractor in completing the project. It was ndt unreasonable for the trial court to determine that the surety had produced sufficient evidence on this disputed question of fact to leave its resolution to the jury.
*442B
The evidentiary claim of error raised by the owner and the redeveloper arises out of the express terms of the settlement agreement negotiated between the owner and the contractor on September 28, 1981. In response to the disputes that had led to its execution, the settlement agreement contained a number of provisions purporting to liquidate liabilities arguably accrued prior to its date. The parties agreed that, in return for two payments totaling $2,250,000, the contractor would release the owner from claims for extra work “through the date hereof.” In addition, the contractor unconditionally released the owner and redeveloper from liability “for damages because of hindrances, interference or delay from any cause in the progress of the work,” acknowledged that the owner had incurred actual delay damages of $800,000 to date, and attested that “as of the effective date hereof the Owner has fully met its obligations under the Contract.”6
On July 3, 1989, prior to the commencement of the presentation of evidence, relying on these provisions, the owner and the redeveloper filed a motion in limine to preclude the surety from offering any evidence at trial attributing responsibility to the owner for delay in the project prior to September 28, 1981. The trial court refused to rule on this motion. Instead, for the first six weeks of trial, over timely and repeated objections, the surety was permitted, in its case-in-chief for recovery of the balance of the purchase price under the contract, to offer evidence to demonstrate that the owner bore the responsibility for delays in the project occurring before September, 1981. Repeated motions *443for mistrial on this ground were taken under advisement by the trial court. Not until August 23,1989, did the trial court rule that it would give effect to the relevant provisions of the settlement agreement. The trial court refused, however, to strike the evidence on this issue that had been previously admitted, and denied the consequent motions for mistrial, saying that it would deal with the problem in its instructions to the jury. In its jury instructions, the following April, the trial court included only the following brief reference to this evidence: “Also, I want to caution you, it has also been a very long trial and you heard a lot of things before the September agreement. Unless they become relevant again in my charge to you, you are to disregard those. So just let’s focus in on the issues to be given you in charge.”
The trial court should have granted the motion in limine, at least with respect to evidence presented in the surety’s case-in-chief to enforce the contractor’s contractual rights against the owner. Having abandoned the defense of duress, and thus pursuing a cause of action under the contract, the surety was bound by the unambiguous terms of the settlement agreement. Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 122-23, 492 A.2d 536 (1985); see also Daley v. Hartford, 215 Conn. 14, 574 A.2d 194, cert. denied, U.S. , 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). The improper admission of so much evidence to the contrary, over an extended period of time, would have been difficult to cure, many months later, even with an extended cautionary warning to the jury in the trial court’s final instructions. The curative instruction that was actually given failed effectively to communicate to the jury what evidence had been excluded and what remained for its consideration. In light of the consistent objections to this inadmissible evidence on the record of this case, a new trial is required in the interests of justice.
*444c
We will consider the remaining challenges to the instructions given by the trial court only insofar as may be necessary to provide guidance for a new trial. Two issues warrant brief discussion at this time: (1) the relationship between contractual provisions and ameliorating principles of common sense and equitable estoppel; and (2) the jury’s role in assessing prejudgment interest.
With respect to the first issue, the owner and the redeveloper contend that the instructions did not assign sufficient weight to the terms of the contracts negotiated by the parties. The instructions included a reference to the general principle that, absent bad faith or duress, contracting parties are free to impose conditions upon their contractual liability. Dills v. Enfield, 210 Conn. 705, 720-21, 557 A.2d 517 (1989); Grenier v. Compratt Construction Co., 189 Conn. 144, 148, 454 A.2d 1289 (1983); Brauer v. Freccia, 159 Conn. 289, 293-94, 268 A.2d 645 (1970); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969). Nonetheless, throughout its charge, the trial court improperly directed the jury to focus on whether it found the conduct of the parties to be fair and equitable, rather than on whether it found that conduct to be consistent with a reasonable construction of the specific terms of the parties’ three interrelated contracts.
With reference to the particular issues before the jury, the court repeatedly invited the jury to exercise its “common sense” and to invoke principles of “equitable estoppel” without regard to the relevant contract provisions. The instructions ignored our repeated holdings that “silence will not operate as estoppel absent a duty to speak.” Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991); Eis v. Meyer, 213 Conn. 29, 34, 566 A.2d 422 (1989); State *445v. American News Co., 152 Conn. 101, 113, 203 A.2d 296 (1964); Flaxman v. Capitol City Press, Inc., 121 Conn. 423, 430, 185 A. 417 (1936). These instructions improperly deflected the attention of the jury away from the central controverted issues of fact about the performance of the parties in light of their intent as manifested in their written agreements.
With respect to the second issue, the trial court instructed the jury on the parties’ right to recover interest, in addition to damages, by leaving that issue to be resolved in the jury’s unfettered discretion. The parties correctly do not challenge the propriety of having the jury determine this issue, since interest, as an element of damages, is a factual question within the province of the jury. See, e.g., Iseli Co. v. Connecticut Light & Power Co., supra, 143-44; Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 464, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986). The question remains whether, in leaving this issue to the jury, the trial court should expressly have required the jury to consider the various factors included in the request to charge filed by the owner and the redeveloper. While the request to charge may have been overly detailed, we urge the trial court, on retrial, to provide some guidelines for the deliberations of the jury more illuminating than a skeletonic reference to “the demands of justice.”
II
The surety has filed a cross appeal, raising two issues for us to decide if a new trial is to be ordered. The surety maintains that the trial court improperly precluded it from pursuing: (1) in its case-in-chief, a recovery measured by quantum meruit as an alternative to its recovery on the contract; and (2) in its action on the contract, additional claims for extra work. We agree with the rulings of the trial court.
*446A
In the surety’s cause of action for breach of the construction contract, the surety maintains that it should have been permitted to offer evidence at trial to persuade the jury that the owner’s failure to make timely payments for contract work and extras was so material a breach that the surety was entitled to recover in quantum meruit for the value of the work performed. This measure of damages, according to the surety, should have been presented to the jury as an alternative to the claim for the unpaid balance of the contract and the cost of contract extras. The trial court, after having initiated a discussion with counsel about the possible role of rescission and restitution in the resolution of this case,7 decided not to permit a claim for quantum meruit to be pursued. We agree that evidence relating to a claim for quantum meruit was properly excluded.
At the time when the surety filed its lawsuit, work on the project was 99 percent complete.8 In these circumstances, its claim for a remedy in restitution measured by quantum meruit is governed by § 373 (2) of the Second Restatement of Contracts (1981), which provides: “The injured party has no right to restitution if he has performed all of his duties under the contract *447and no performance by the other party remains due other than payment of a definite sum of money for that performance.”9
Professor Farnsworth suggests that the rule of the Restatement is grounded in the practical perception that “to implement the policy favoring restitution would involve the court in problems of measurement, while recognition of the expectation interest [i.e., the contract price] requires it only to award a sum fixed by the parties.” 3 E.A. Farnsworth, Contracts (1990) § 12.20, p. 311; see also 5 A. Corbin, Contracts (1964) § 1110. The inadvisability of judicial reevaluation of the price that the parties have assigned for the work to be performed is rooted in the nature of the remedy that restitution affords a party injured by a material breach of contract. As we have recently noted, because the remedy in restitution is designed to prevent unjust enrichment of the party responsible for a material breach of an enforceable contract, the remedy is measured not by the loss suffered by the injured party but by the gain received by the party in breach. Bernstein v. Nemeyer, 213 Conn. 665, 675-76, 570 A.2d 164 (1990); 3 E.A. Farnsworth, supra, § 12.19, p. 305; 1 G. Palmer, The Law of Restitution (1978) § 4.1, p. 369; 3 Restatement (Second), Contracts (1981) §§ 344 (c), 370 and 371; see Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-67, 368 A.2d 6 (1976); Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959). Furthermore, “[t]he award of a restitutionary remedy for breach of contract depends upon a showing of what justice requires in the particular circumstances.” Bernstein v. Nemeyer, supra, 675. After full *448performance of a contract, the appropriate measure of the value of the benefit conferred upon the party in breach is the value that the parties themselves, in their contract, have assigned to that performance, in the absence of some special showing such as a lack of good faith, unconscionability, or “abuse of contract.” See E. A. Farnsworth, “Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract,” 94 Yale L.J. 1339, 1384-86 (1985).
Our application of the Restatement rule finds support, furthermore, in case law in other jurisdictions barring contractors who have fully performed from recovering damages in excess of the contract price. See, e.g., United States v. Americo Construction Co., 168 F. Sup. 760, 761-62 (D. Mass. 1958); Siebler Heating & Air Conditioning v. Jenson, 212 Neb. 830, 833-34, 326 N.W.2d 182 (1982); Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 388-90, 516 N.E.2d 190, 521 N.Y.S.2d 653 (1987). The court’s reasoning in Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., supra, 389, is especially persuasive: “It is impermissible .. . to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties .... Here, it is undisputed that the relationship between the parties was defined by a written contract, fully detailing all applicable terms and conditions, and specifically providing for project design changes with adjustments in compensation contemplated in light of those changes. Notwithstanding [the contractor’s] claim that [the owner] breached the contract, [the contractor] chose not to rescind the agreement, but instead to complete performance of the contract and sue to recover damages, which of course was [the contractor’s] right. Having chosen this course, however, [the contractor] is now *449limitp.H to recovery of damages on the contract, and may not seek recovery based on an alleged quasi contract. ”10
B
The surety also maintains that, in its cause of action for damages pursuant to the construction contract, the trial court took too narrow a view of the extra work claims on which the surety was entitled to present evidence to the jury. The June, 1982 completion agreement contemplated the contractor’s submission, by August 9, 1982, of claims for extra work arising subsequent to the date of the settlement agreement. In timely fashion, the contractor submitted forty-seven extra work claims with a claimed value of $1,160,000, none of which the owner paid. At the trial, the surety sought to recover $900,972 for extra work, but was only permitted to present evidence to the jury with respect to $24,921 of these claims.
The trial court excluded many of the extra work claims in reliance on the “Inspection” clause in the construction contract. The trial court held that the surety could not recover for work that the project engineer had rejected as incomplete or nonconforming, because the parties had agreed, in the construction contract, that “[t]he Engineer shall have the right to reject defective material and workmanship or require its correction.” We agree. “[Contracting parties are free to *450impose conditions upon contractual liability. Brauer v. Freccia, 159 Conn. 289, 293-94, 268 A.2d 645 (1970); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969). Frequently, building contracts provide that a third party, an architect or an engineer, acting in good faith and in the exercise of his best judgment, shall decide when one of the contracting parties has fulfilled the requirements of the contract. In such circumstances, if the architect or engineer withholds certification, and his decision is not arbitrary or made in bad faith, a court is not authorized to substitute its judgment for that of the designated expert. Maskel Construction Co. v. Glastonbury, 158 Conn. 592, 597, 264 A.2d 557 (1969); Friend v. Green, 146 Conn. 360, 364-65, 151 A.2d 343 (1959); Dahl v. Edwin Moss & Son, Inc., 136 Conn. 147, 153-54, 69 A.2d 562 (1949); Clover Mfg. Co. v. Austin Co., 101 Conn. 208, 213, 125 A. 646 (1924); Chatfield Co. v. O’Neill, 89 Conn. 172, 174, 93 A. 133 (1915).” Grenier v. Compratt Construction Co., 189 Conn. 144, 148, 454 A.2d 1289 (1983). In light of these precedents, the fact that the construction contract contained an alternate dispute resolution clause, presumably to permit arbitration of other disputes under the contract, does not undermine the categorical nature of the inspections clause.
The surety also asks us to review the rulings of the court rejecting claims for extra work that, in the view of the court, lacked a sufficient evidentiary basis. With respect to these work orders, the surety attempted to meet its burden of proving the cost of labor and materials by proffering evidence of contemporaneous estimates rather than actual costs. The construction contract provision for change orders specified, however, that, absent an agreement about the cost of work extras, “[t]he term Cost of the Work means the sum of all costs necessarily incurred and paid by the Contractor in the proper performance of the Work.” In *451light of this provision, and other factual infirmities in the evidence offered, the court correctly concluded that the cost estimates proffered by the surety were insufficiently probative to be admissible to prove the actual costs that the contractor had incurred. See Grenier v. Compratt Construction Co., supra.
Ill
The final issue before us is the cross appeal of the contractor, who challenges the validity of the trial court’s ruling precluding the contractor from presenting its own defense. The contractor was not permitted to cross-examine adverse witnesses, to make objections to adverse evidence, or to present a closing argument to the jury.11
The trial court’s ruling to exclude the contractor from participation in the trial was premised on its finding of an identity of interest between the surety and the contractor. That finding was supported by the following facts. With respect to the first case, the action to recover the unpaid contract price and the cost of contract extras, the contractor, on March 10, 1982, prior to the beginning of the trial, had assigned all its rights to any claims or judgments to the surety. With respect to the second case, the action by the owner and redeveloper to recover damages for work improperly performed, that action was not a suit on the construction contract but a suit against the surety on its performance bond. Although the contractor was named in that litigation as an interested party in view of its contractual role as the principal on the performance bond, the contractor could not be held accountable in that suit unless the surety were held liable.
The trial court’s decision to exclude the contractor was an exercise of its broad discretion to manage the *452presentation of evidence and the scope of cross-examination in civil cases.12 See Gurecki v. Johnson, 175 Conn. 297, 298, 398 A.2d 311 (1979); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 3.4.3, p. 43. The court’s finding of an identity of interest between the surety and the contractor distinguishes this case from Commercial Union Ins. Co. v. Frank Perrotti & Sons, 20 Conn. App. 253, 566 A.2d 431 (1989). As a general matter, because identity of interest is not to be presumed, separate defendants (or plaintiffs) are entitled to be treated as separate parties for purposes of cross-examination. Id., 262-63. When, however, parties have substantially the same interests, they “should not be permitted to examine witnesses in relays.” Guy v. Rudd, 345 F. Sup. 1382, 1385 (W.D. Pa. 1972), rev’d on other grounds, 480 F.2d 677 (3d Cir. 1973); see also 1 J. Moore, Federal Practice, Manual for Complex Litigation (Second) (1986) § 22.22.
In this case, the trial court, ruling in the first instance with regard to the presentation of the evidence in the surety’s case against the owner, carefully limited its ruling of identity of interest between the surety and the contractor. The court expressly left open the possibility that future trial developments might “break the unity” between these parties. It thereby invited the contractor to make an appropriate showing of specific instances in which it needed to cross-examine particular witnesses or to make a separate argument. Although the contractor reiterated on several occasions its general desire to participate more folly in the trial, it did not make a particularized showing, as witnesses were examined, of what it wanted to bring to the attention of the jury. On this record, we are persuaded that the contractor was not prejudiced by the ruling of the *453trial court and that the ruling therefore was not an abuse of its discretion.13
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other justices concurred.
The city of Stamford is no longer a party to this litigation, even though it was originally named as codefendant by the plaintiffs in the first case.
Article 4 of the contract provided in pertinent part: “It is mutually agreed between the parties hereto that time is of the essence of this Contract. As actual damages for any delay in completion of the work are impossible to determine, the Contractor and his sureties shall be liable for and shall pay to the Owner the sum of Three Thousand Dollars ($3,000.00) for each calendar day of delay until the Contract is completed or accepted.”
Section 4 (c) of the supplementary conditions to the contract provided: “The Contractor shall substantially complete, including obtaining a final certificate of occupancy, and have the Project ready for occupancy and use as a public parking facility no later than seven hundred thirty (730) consecutive calendar days from the start of construction.”
Section 9 (d) of the general conditions to the contract provided: “Upon completion and acceptance of all work required hereunder, the amount due *437the Contractor under this Contract shall be paid upon certification by the Engineer and approval by the Owner, after the Contractor shall have furnished Owner with a release in satisfactory form of all claims against the Owner arising directly or indirectly under this Contract, other than such claims, if any, as may be specifically excepted by the Contractor from the operation of the release; provided, each such exception shall embrace no more than one claim, the basis and scope of which shall be clearly defined and the amount stated; and provided further, the amounts of such excepted claims shall not be included in the application for final payment.”
All the claims of error were adequately preserved in the trial court.
At the commencement of the trial, the surety withdrew a claim that the settlement agreement was voidable because the contractor had executed it under duress.
The complaint filed by the surety contained no count in rescission, restitution or quantum meruit, but focused solely on the damages flowing from the breaches of contract alleged in the complaint. By its terms, the complaint sought a recovery for specified amounts due and owing the surety as assignee of the contractor, amounts described in the complaint as the unpaid contract balance and the price for extra work. It is not clear, therefore, on what basis the trial court interjected a discussion about rescission and restitution into this case.
For the purposes of the present discussion, a determination of whether work has been fully performed does not depend upon whether the owner has reserved claims about the timeliness of the work or about the manner of its performance.
We need not decide today whether the rules that govern remedial rights in the event of full performance are equally applicable in the event of substantial performance. We therefore do not need to resolve the disparate meanings that the parties attribute to M.J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 287-89, 99 A. 853 (1917).
The cases cited by the surety for the contrary view are not directly on point. Several of them deal with questions of substantial rather than full performance. See, e.g., M.J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 99 A. 853 (1917). The court’s rulings in favor of claims sounding in quantum meruit in Rossetti v. New Britain,, 163 Conn. 283, 292, 303 A.2d 714 (1972), and Morici v. Jarvie, 137 Conn. 97, 101-102, 75 A.2d 47 (1950), do not indicate that any claim was raised, in either case, that the performance of the plaintiffs therein was so complete that they should have sued on the contract.
No issue has been raised in this case about the contractor’s ability to exercise peremptory challenges to prospective jurors.
At the hearing on this question, counsel for the contractor acknowledged that it was within the discretion of the court to make such a ruling.
At a new trial, the contractor will continue to have the opportunity to exercise independent evidentiary rights if its interests are demonstrably separate from those of the surety. | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7842500/ | The defendants’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 221, is granted, limited to the following issue:
“Did the plaintiff establish probable cause in its application for a prejudgment remedy, in which it alleged that the defendants had agreed to reimburse the plaintiff for the amounts drawn under letters of credit issued by the plaintiff?” | 01-04-2023 | 09-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218248/ | ORDER
EMILY C. HEWITT, Chief Judge.
Before the court is Plaintiffs Motion to Conform Filing Date (plaintiffs Motion or PL’s Mot.), Docket Number (Dkt. No.) 4, filed April 16, 2012. Plaintiffs Motion requests that the court deem plaintiffs Complaint for Breach of Contract and Just Compensation (Complaint or Compl.), Dkt. No. 1, “as having been filed on April 11, 2012.” PL’s Mot. 1. Defendant does not object to plaintiffs Motion. Def.’s Notice in Resp. to the Court’s Apr. 19, 2012 Order, Dkt. No. 7, at 1.
Plaintiffs Motion states that counsel for plaintiff submitted the Complaint, as well as “all materials required for commencing a civil action in this [ejourt,” in the court’s night box on the evening of April 11, 2012. PL’s Mot. 1; see id. at 2 (“[CJounsel for [pjlaintiff physically delivered the Complaint and all other materials required for commencing an action in this [cjourt’s night box between 5:15 p.m. and 12:00 midnight on Wednesday, April 11, 2012.” (internal quotation marks omitted)). This is supported by the stamp on the back of the first page of the Complaint, which states: “RECEIVED FROM NIGHT BOX APRIL 12 2012 OFFICE OF THE CLERK U.S. COURT OF FEDERAL CLAIMS.” Compl. 1; accord Berry v. United States, 86 Fed.Cl. 750, 754 (2009) (finding that a petition for review at the United States Court of Appeals for the Federal Circuit (Federal Circuit) bearing a stamp stating “RECEIVED FROM NIGHT BOX [on] MAY 6, 2008” supported the plaintiffs contention that the petition for review was filed in the Federal Circuit’s night box between 5:00 p.m. and midnight on May 5, 2008 and that, therefore, 28 U.S.C. § 1500 does not apply). Rule 77.1(a) of the Rules of the United States Court of Federal Claims (RCFC) provides: “A night box is provided for filing with the clerk’s office between 5:15 p.m. and 12:00 midnight on any business day for any paper due that day.” RCFC 77.1(a). Rule 77(a) further provides that “[t]he court is considered always open for filing any paper.” RCFC 77(a); cf. Schultz v. United States, 132 Ct.Cl. 618, 620-22, 132 F.Supp. 953, 954-56 (1955) (relying on prior version of Rule 77(a), which provided that “the [cjourt shall be deemed always open for the purpose of filing proper papers,” as a factor in determining that, where the plaintiffs petition arrived at the court on Sunday, July 15, 1951, the petition was deemed “filed” on Sunday, July 15,1951).
In light of the foregoing, the court finds that plaintiffs Complaint received in the night box on April 11, 2012 shall be considered filed on April 11, 2012. Accord Kearns v. Toyota, Nos. 94-1305, 94-1321, 53 F.3d 345, 1995 WL 74582, at *2 (Fed.Cir. Feb. 15, 1995) (unpublished table decision) (finding that the appellant’s notice of appeal was “received in the night box on May 2 and should have been stamped as received on May 2”).
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218249/ | ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE, STAYING CONSIDERATION OF PLAINTIFFS’ MOTION FOR SANCTIONS, AND SETTING A SCHEDULE
FIRESTONE, Judge.
The dispute in this Fifth Amendment Takings case centers on whether defendant the United States (“the government”) acted in its sovereign capacity when it purchased approximately 1015 of plaintiffs’ intermodal shipping containers from TOPtainer, Inc., a now-nonexistent company that entered into a lease agreement with plaintiffs for their containers, and then, in turn, leased plaintiffs’ containers to the government. On March 26, 2010, plaintiffs filed their first motion for summary judgment on their claim that the government had taken their property, i.e. their containers, without just compensation in violation of the Fifth Amendment of the Constitution of the United States. On June 17, 2011, the court denied plaintiffs’ motion. The court determined that genuine issues of material fact precluded summary judgment on plaintiffs’ takings claim, finding that there were disputed issues of fact regarding whether the government was acting in its sovereign capacity when it assumed ownership of plaintiffs’ containers under the terms of the buyout provisions in its lease with TOPtainer, Inc. In so finding, the court determined that there existed a disputed factual issue regarding whether plaintiffs’ containers were “lost” pursuant to the buyout provisions.
Pending before the court are two motions introduced by plaintiffs. The first is plaintiffs’ motion for discovery sanctions, pursuant to Rule 37 of the Rules of the United States Court of Federal Claims (“RCFC”). Plaintiffs seek sanctions based on the government’s failure to disclose, until recently, that *71125 containers belonging to plaintiff Textainer Equipment Management Limited (“Tex-tainer”) or its predecessor, Capital Lease Limited (“Capital”) were being used by the United States Marines in Okinawa, Japan and were never “lost.” Plaintiffs request that the court find the government’s actions in violation of this court’s discovery rules, and grant one or more of the following remedies: (1) an order determining for the purposes of this case that none of plaintiffs’ 1015 containers were “lost, destroyed, or damaged beyond economic repair,” (2) striking the deposition testimony of three government witnesses to the extent those witnesses have testified otherwise, (3) an order granting plaintiffs’ renewed motion for summary judgment, filed March 16, 2012, (4) an order awarding plaintiffs’ attorneys’ fees incurred as a result of the discovery failure, including fees and expenses incurred in prosecuting the motion for sanctions.
Second, plaintiffs have filed a motion for clarification and/or a motion to strike the government’s cross motion for summary judgment. On March 2, 2012, this court filed a scheduling order, in light of the “new evidence” regarding the 125 Okinawa containers, directing plaintiffs to “file all motions they wish the court to consider, including their motion for summary judgment based on the new evidence identified after the close of the discovery period.” Scheduling Order, EOF No. 90. Plaintiffs’ filed their renewed motion for summary judgment, based on the new evidence pertaining to the 125 Okinawa containers, on March 16, 2012. On March 30, 2012, the government filed its cross motion for summary judgment. A substantial part of the government’s cross motion presents a challenge to plaintiffs’ property interests in their containers, and plaintiff Textainer’s standing as successor-in-interest to Capital. In their motion to strike, plaintiffs argue that the government has waived its right to challenge plaintiffs’ property interest in its containers. Plaintiffs now request that the court either clarify whether the current summary judgment proceedings are limited to the new evidence recently disclosed by the government, or issue an order striking the sections of the government’s cross motion — Sections II, III, and IV — that are related to plaintiffs’ property interests, and any other materials not related to the “new evidence.”
For the following reasons and after careful consideration of the parties’ briefing on these issues, the court DENIES plaintiffs’ motion to clarify and/or strike. The court STAYS consideration of plaintiffs’ motion for sanctions, pending the court’s consideration of the parties’ cross motions for summary judgment and in particular the jurisdictional issues now raised by the government.
I. DISCUSSION
The court first addresses plaintiffs’ motion to clarify and/or strike the government’s arguments challenging plaintiffs’ property interests in their containers, raised for the first time in their cross motion for summary judgment. In Section II of the government’s cross motion, which plaintiffs seek to strike, the government argues that plaintiffs have not demonstrated an adequate property interest in the containers at issue in this ease. Def.’s Cross-Mot. at 6-11, ECF No. 97. In particular, the government argues that plaintiffs have not shown that they own any of the containers at issue in this matter. In Sections III and IV, which plaintiffs also seek to strike, the government argues that plaintiff Textainer has not shown that its present takings claim was assigned to Textainer by its predecessor, Capital, and that even if this claim was assigned, that assignment is barred by the Assignment of Claims Act, 31 U.S.C. § 3727 (2006). Id. at 11-24. Therefore, the government argues, Textainer lacks standing to bring its takings claim. Id. at 24.
Plaintiffs argue that they have presented an adequate factual basis to establish their property interests and standing, and that, at any rate, the government has never challenged plaintiffs’ property interests or Textainer’s ability to bring a takings claim before it filed its cross motion, and has therefore conceded these issues. Plaintiffs assert that the government’s attack on plaintiffs’ ownership interests is an argument that plaintiffs are not the real parties in interest under RCFC 17(a). However, plaintiffs argue, because the government *72did not object to the real party in interest at an early stage in the proceedings, the government’s arguments are waived.
In support, plaintiffs point to the government’s conduct during discovery. For example, in answer to plaintiffs’ interrogatory concerning challenges to plaintiffs’ property interests, the government stated that ownership issues were “immaterial.” See Pis.’ Reply at 3, EOF No. 108. In addition to this and other specific instances of government conduct, plaintiffs base their argument on the government’s failure to challenge their ownership interest until the pending cross motion. Plaintiffs also argue that it was clear from the discussion at the March 2, 2012 pre-trial conference and this court’s scheduling order that the parties’ cross motions were limited to addressing the effect of the “new evidence” — the buyout of the 125 Okinawa containers — only. For all of these reasons, plaintiffs argue, the government’s challenge to plaintiffs’ property interests has been waived.
The government contends that plaintiffs’ motion should be denied because this court’s order did not expressly state that the government’s cross motion for summary judgment should be limited to addressing “new evidence,” and because even if the government did not raise the ownership issues previously, this does not relieve plaintiffs of their burden of proof, in a takings ease, to establish a “legally-eognizable property interest.” Def.’s Resp. at 4, ECF No. 107 (citing Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1580 (Fed.Cir.1993)). The government further argues that this court never made any specific conclusions as to whether plaintiffs have a valid property interest, and that the court’s denial of plaintiffs’ first summary judgment motion does not relieve plaintiffs of the burden of proving a property interest. Id. at 5-6 (citing Dessar v. Bank of Am. Nat’l Trust and Sav. Ass’n, 353 F.2d 468, 470 (9th Cir.1965)). Finally, the government argues that the questions of whether plaintiffs possessed a valid property interest at the time of the alleged taking and whether Capital’s claims were assigned to Textainer in violation of the Anti-Assignment Acts are jurisdictional in nature, and therefore cannot be waived.
The court agrees with the government that even if the government did not raise the question of whether plaintiffs possess a legally cognizable property interest in their containers, plaintiffs continue to bear the burden of proof on this issue. To establish a taking under the Fifth Amendment, plaintiffs must show that they possess a legally cognizable property interest. See, e.g., Skip Kirchdorfer, 6 F.3d at 1580; see also Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (“If the claimant fails to demonstrate the existence of a legally cognizable property interest, the court[’]s task is at an end.”). The fact that the government did not dispute these issues earlier does not relieve plaintiffs of this burden. Moreover, the court agrees with the government that it did not decide this issue in its June 17, 2011 opinion denying plaintiffs’ motion for summary judgment, and that, even if it had, the denial of summary judgment also does not relieve plaintiffs of their burden of proving a property interest. Dessar, 353 F.2d at 470 (holding that the denial of a summary judgment motion “merely postpones decision of any question; it decides none”); see also Aycock Engineering, Inc. v. Airflite, Inc., 560 F.3d 1350, 1356 (Fed.Cir.2009) (citing Bethlehem Steel Exp. Corp. v. Redondo Constr. Corp., 140 F.3d 319, 321 (1st Cir.1998)) (finding that “the law of the case doctrine ... simply does not apply to a denial of summary judgment”).
In addition, the government’s challenge to Textainer’s takings claim under the Assignment of Claims Act, 31 U.S.C. § 3727, is jurisdictional in nature. See Ins. Co. of the W. v. United States, 100 Fed.Cl. 58, 62 (2011) (citing Ins. Co. of the W. v. United States, 243 F.3d 1367, 1375 (Fed.Cir.2001)) (stating that “when either of the Anti-Assignment Acts renders an assignment ineffective against the United States, the waiver of sovereign immunity found in the Tucker Act is withdrawn ... [a]nd without that waiver of sovereign immunity, no jurisdiction would exist to adjudicate the claim”); CRV Enters., Inc. v. United States, 86 Fed.Cl. 758, 770 (2009), aff'd, 626 F.3d 1241 (Fed.Cir.2010) *73(holding that where plaintiffs did not own property at issue at the date of taking and alleged assignment of claim was barred by the Assignment of Claims Act, plaintiffs did not have standing to bring their takings claims). Furthermore, to the extent the government challenges plaintiffs’ standing based on a lack of ownership in their containers, a challenge to standing also implicates this court’s jurisdiction. System Fuels, Inc. v. United States, 65 Fed.Cl. 163, 171 (2005); CRV Enters., 86 Fed.Cl. at 770. Jurisdictional issues “can never be forfeited or waived.” Ford Motor Co. v. United States, 635 F.3d 550, 556 (Fed.Cir.2011) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)); see generally John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Therefore, the court may not strike the jurisdictional issues raised in the government’s cross motion.
To overcome the government’s arguments, plaintiffs assert that the government’s attack on plaintiffs’ property interest in the containers and standing only challenge whether plaintiffs are real parties in interest under RCFC 17(a). RCFC 17(a) provides that “[a]n action must be prosecuted in the name of the real party in interest.” The basis of the rule is to “protect the defendant against a subsequent action by the party actually entitled to recover.” Fed.R.Civ.P. 17(a) advisory committee’s note to the 1996 amendment (the analogous federal rule); System Fuels, 65 Fed.Cl. at 170. The Court of Federal Claims has held that in some circumstances, the issue of whether a party is a real party in interest “is subject to waiver if not timely pled.” Fifth Third Bank of W. Ohio v. United States, 55 Fed.Cl. 372, 376 (2003) (citing Rogers v. Samedan Oil Corp., 308 F.3d 477, 483-84 (5th Cir.2002); United Healthcare Corp. v. Am. Trade Ins. Co., 88 F.3d 563, 569 (8th Cir.1996)) (holding the “real party in interest” issue waived where the government failed to raise the issue until seven years after the filing of the complaint and after the court gave notice to the government that its standing and related arguments should have been filed earlier).
However, challenges based on RCFC 17(a) stand separate and distinct from the government’s arguments based on jurisdiction and plaintiffs’ burden of proof.1 While Rule 17(a) exists for the benefit of, and therefore may be waived by, the government, it does not relieve plaintiffs of the burden of *74asserting jurisdiction or proving the essential elements of their cause of action. See System Fuels, 65 Fed.Cl. at 171 (allowing plaintiffs to amend the complaint to include the real party in interest over the government’s objection, but declining to grant summary judgment on plaintiffs’ takings claims until the factual basis upon which plaintiffs could argue those takings claims was further developed); see also First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed.Cir.1999) (holding that “the presence or absence of an RCFC does not determine the jurisdiction” of this court, or standing). In other words, even if the government had waived its ability to challenge whether plaintiffs were the “real parties in interest,” this waiver would not automatically establish that plaintiffs possess standing to assert their claim, or that plaintiffs have demonstrated that they have a “legally cognizable property interest” for the purpose of establishing a takings claim. Therefore, even assuming that the government has waived any “real party in interest” issues, the court declines to strike Sections II, III, and IV of the government’s cross motion, which implicate both jurisdictional issues and plaintiffs’ burden of proving the elements of their takings cause of action.
II. CONCLUSION
For the foregoing reasons, the court finds that the government did not “waive” the arguments presented in Sections II, III, and IV of its cross motion for summary judgment. Plaintiffs’ motion to clarify and/or strike is therefore DENIED. In light of the potential jurisdictional issues introduced by the government, the court STAYS consideration of plaintiffs’ motion for sanctions until briefing on summary judgment is complete. Plaintiffs shall file their reply in support of their motion for summary judgment and response to the government’s cross motion by June 11, 2012. The government shall file its reply in accordance with RCFC 7.2.
IT IS SO ORDERED.
. Plaintiffs rely on the Court of Federal Claims' decision in First Federal Savings & Loan Ass'n of Rochester v. United States, 58 Fed.Cl. 139, 158— 59 (2003), to argue that "[r]eal party in interest challenges under the Anti-Assignment Act do not result in the dismissal of a claim." Pis.1 Reply at 7 n. 3. In First Federal, the government argued that the plaintiff was not a real party in interest because it had undergone stock conversions, mergers, and sales of its stock since its breach of contract suit had been initiated. 58 Fed.Cl. at 152. The government also argued that the post-complaint assignment of the right to any proceeds from the lawsuit as a result of the mergers and sales of stock violated the Anti-Assignment Acts. Id. at 156-57. The court held that the assignment of proceeds did not violate the Anti-Assignment Acts because it was "a private matter between the parties,” and moreover, mergers and transformation of ownership fell into the "operation of law” exception to the Anti-Assignment Acts’ bar. Id. at 157-58.
Plaintiffs rely on an alternative holding in First Federal, in which the court found that even if the post-merger and stock-sale assignee was the real party in interest, the assignor — the plaintiff— could still represent the assignee and bring the claim. Id. at 158-59 (“The Anti-Assignment Act does not invalidate a claim that is assigned outside its parameters; it treats the claim as though it had not been assigned, looking to the assignor ([the plaintiff] or its successor) not the assignee ... to pursue it.”). However, here, in contrast, the government argues that plaintiff Textainer is the assignee, not the assignor, of a claim against the government. Under well-settled principles, the Anti-Assignment Act may bar an assignee from bringing a takings claim. See CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 n. 7 (Fed.Cir.2010) (citing United States v. Dow, 357 U.S. 17, 20, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958) ("It is well established ... that the Assignment of Claims Act prohibits the voluntary assignment of a compensation claim against the Government for the taking of property.”)); Wall Inds., Inc. v. United States, 15 Cl.Ct. 796, 803 (1988), aff'd, 883 F.2d 1027 (Fed.Cir.1989) ("Although the Anti-Assignment Act, 31 U.S.C. § 3727, prevents an assignee of a claim against the United States from bringing the suit even though that assignee may be the real party in interest, the assignor of the claim may represent the assignee/real party in interest in such a suit.”). Therefore, the court finds plaintiffs' argument based on First Federal insufficient to overcome the jurisdictional issues raised by the government based on the Assignment of Claims Act. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218250/ | OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
WILLIAMS, Judge.
This tax refund case comes before the Court on the parties’ cross-motions for summary judgment. At issue is whether, in calculating the gain realized upon the sale of an asset under the Foreign Sales Corporation regime, the asset’s basis should take into account depreciation deductions allocable to tax-exempt foreign trade income. This is an issue of first impression, but because the Foreign Sales Corporation regime was repealed in 2000, not an issue likely to recur.
Background1
The Foreign Sales Corporation Regime
In 1984, Congress enacted the Foreign Sales Corporation (“FSC”) regime, 26 U.S.C. *76§§ 921-927, which was designed “to provide American firms with a tax incentive to increase their exports.” Boeing Co. v. United States, 537 U.S. 437, 456, 123 S.Ct. 1099, 155 L.Ed.2d 17 (2003) (citing S.Rep. No. 92-437 at 13 (1971), 1971 U.S.C.C.A.N. 1918, 1928). A qualifying FSC, as defined in 26 U.S.C. § 922 (1994), was permitted to treat roughly 30 percent of its “foreign trade income” as “exempt foreign trade income.” 26 U.S.C. § 923(a) (1994). Exempt foreign trade income was not subject to taxation in recognition that such income was “not effectively connected with the conduct of a trade or business within the United States.” 26 U.S.C. § 921(a). Section 923(b) defined “foreign trade income” as “the gross income of an FSC attributable to foreign trading gross receipts.” Such receipts included an FSC’s gross receipts “from the sale, exchange, or other disposition of export property,” and “from the lease or rental of export property for use by the lessee outside the United States.” 26 U.S.C. § 924(a)(1)-(2) (1994).
The FSC regime did not permit an FSC to reduce its taxable income using deductions attributable to the generation of exempt foreign trade income. Section 921(b) thus required deductions “derived by a FSC from any transaction [to] be allocated between (1) the exempt foreign trade income derived from such transaction, and (2) the foreign trade income (other than exempt foreign trade income) derived from such transaction, on a proportionate basis.” 26 U.S.C. § 921(b) (1994). The version of § 265(a)(1) in effect at the relevant time provided that in computing taxable income, no deduction would be allowed for any amount “which is allocable to one or more classes of income ... wholly exempt from the taxes imposed by this subtitle.” 26 U.S.C. § 265(a)(1) (2000).2 Under the FSC regime, because 30 percent of an FSC’s income was exempt from taxation, 30 percent of the FSC’s deductions were disallowed for purposes of calculating taxable income.
After a panel of the World Trade Organization (“WTO”) agreed with the European Union that the FSC regime was an export subsidy in violation of WTO law, Congress repealed the FSC regime in 2000. Pub.L. No. 106-519, 114 Stat. 2423 (2000). Section 5(c)(1) of the repealing act, however, contained a grandfather clause exempting certain FSC transactions from the repeal. To qualify under the grandfather clause, the FSC must have been in existence on September 30, 2000, and the transaction must have occurred:
(A) before January 1, 2002; or
(B) after December 31, 2001, pursuant to a binding contact—
(i) ... between the FSC (or any related person) and any person ... not a related person; and
(ii) ... in effect on September 30, 2000, and at all times thereafter.
Id. The transactions at issue here are subject to the FSC regime under the grandfather clause.
Plaintiff CBS is a corporation with its principal place of business in New York, New York, and is the common parent of an affiliated group of corporations that file consolidated federal income tax returns. During the 2005 tax year, Peak FSC, Ltd. (“Peak”) and Westinghouse Credit Corporation, FSC V, Ltd. (“FSC V”), each a Bermuda corporation, were both directly, wholly-owned subsidiaries of CBS. Both Peak and FSC V qualified as FSCs under 26 U.S.C. § 922 (1994).
In 1990, Peak and FSC V each purchased a single Boeing 747-467 aircraft (“the aircraft”) for $127,500,000 each. Peak and FSC V then entered into separate leasing agreements with Cathay Pacific Arlines. Under the agreements, Peak and FSC V leased the aircraft to Cathay until 2005, when Cathay purchased the aircraft.
In each of tax years 1990-2005, Peak and FSC V depreciated the aircraft according to § 167(a), which allows a depreciation deduction for property used in “the trade or business” or “held for the production of income.” Both Peak and FSC V also allocated these depreciations as required by § 921(b), i.e., each FSC deducted only 70 percent of the aircraft’s total depreciation, and did not take *77any deductions for depreciation allocated to exempt foreign trade income.
In 2005, Peak sold its 747 to Cathay for $114,750,000, reporting a gain of $45,729,588, and FSC V sold its 747 to Cathay for $114,750,000, reporting a gain of $45,163,872. Peak and FSC V calculated their gain by subtracting from the aircraft’s cost basis both the depreciation allocated to nonexempt foreign trade income and the depreciation allocated to exempt foreign trade income. Subsequently, Plaintiff discovered the error made on its original tax return in calculating the gain from the 2005 aircraft sales. Plaintiff realized it had incorrectly reduced the adjusted basis in the aircraft by depreciation allocated to exempt foreign trade income.
On November 24, 2009, Plaintiff filed a timely administrative claim with the IRS seeking a refund of $8,554,919, which was equal to the reduction in tax attributable to the reduced gain. In its Amended United States Corporation Income Tax Return, Plaintiff sought to increase the aircraft’s bases by the amount of depreciation previously allocated to exempt foreign trade income. In so doing, Plaintiff argued that such depreciation was neither an “allowed” nor “allowable” deduction under § 1016(a). The adjustments led Plaintiff to recalculate the gain realized by Peak on the sale of its aircraft from $45,729,588 to $28,185,712, and the gain realized by FSC V on its sale from $45,163,872 to $27,789,710. After that claim was disallowed by the IRS, Plaintiff filed the instant suit.
Discussion
Summary Judgment Standard
Summary judgment is appropriate where the evidence demonstrates that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the United States Court of Federal Claims (“RCFC”); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute is one that “may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. A fact is material if it “might affect the outcome of the suit.” Id. at 248, 106 S.Ct. 2505.
The moving party bears the burden of establishing the absence of any material fact, and any doubt over factual disputes will be resolved in favor of the non-moving party. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). Once this burden is met, the onus shifts to the non-movant to point to sufficient evidence to show a dispute over a material fact that would allow a reasonable finder of fact to rule in its favor. Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. 2505. A court does not weigh each side’s evidence when considering a motion for summary judgment, but “ ‘the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). When opposing parties both move for summary judgment, “the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Mingus Constructors, 812 F.2d at 1391.
Pertinent Provisions of the Internal Revenue Code
The parties dispute the amount of gain Peak and FSC V should have realized upon the sale of their aircraft. With respect to that calculation, the Supreme Court has observed that:
Section 1016 is one of a number of general provisions [in the Internal Revenue Code] that together determine the amount of gain or loss a taxpayer must recognize when he sells or otherwise disposes of any type of property. Section 1001(a) provides the basic rule: gain or loss is determined by subtracting “adjusted basis” from “amount realized.” Section 1011(a) defines “adjusted basis” as “basis ... adjusted as provided in section 1016.”
United States v. Hill, 506 U.S. 546, 554-55, 113 S.Ct. 941, 122 L.Ed.2d 330 (1993).
Section 1016(a) requires that:
*78Proper adjustment in respect of the property shall in all cases be made—
(2) in respect of any period since February 28, 1913, for exhaustion, wear and tear, obsolescence, amortization, and depletion, to the extent of the amount—
(A) allowed as deductions in computing taxable income under this subtitle or prior income tax laws, and
(B) resulting (by reason of the deductions so allowed) in a reduction for any taxable year of the taxpayer’s taxes under this subtitle (other than chapter 2, relating to tax on self-employment income), or prior income, war-profits, or excess-profits tax laws, but not' less than the amount allowable under this subtitle or prior income tax laws.
§ 1016(a)(2).
As the Supreme Court has recognized, “whether or not the taxpayer ever took a depreciation, amortization, or depletion deduction with respect to the item he is selling, he must, for purposes of § 1016, determine whether such deductions were allowable with respect to that item, and reduce his basis by at least that allowable amount.” Hill, 506 U.S. at 557, 113 S.Ct. 941, The Court construes the term “allowable” in § 1016(a)(2) by first examining the plain meaning of the statute. Cf. Energy East Corp. v. United States, 92 Fed.Cl. 29, 33 (2010), aff'd, 645 F.3d 1358 (Fed.Cir.2011) (“The language of the statute itself is the starting place for the Court’s inquiry into the statute’s meaning.... Where the intent is unambiguously expressed by the plain meaning of the statutory text, the Court gives effect to that clear language without rendering any portion of it meaningless.”); Jade Trading, LLC v. United States, 65 Fed.Cl. 188, 192 (2005) (“When interpreting a statute, courts must first examine the plain language of the statute.”).
As the Ninth Circuit explained, the term “allowable” in § 1016(a)(2) refers to a deduction that is permitted, and not otherwise forbidden, by the Code. The Ninth Circuit reasoned:
The problem with the IRS’s position is that it misconstrues the meaning of “allowable as a deduction.” Although not explicitly defined in the tax code, these words are a term of art, with a fixed meaning in the tax arena....
There are two elements to this definition. First, the deduction must be “permitted” by the tax code.... Second, the deduction must not be otherwise limited or forbidden in the tax code.
Flood v. United States, 33 F.3d 1174, 1177 (9th Cir.1994) (citations omitted).
The Federal Circuit applied this same definition in construing the terms “allowable” in another Code provision, § 163(d)(1), stating:
In common usage, the word “allowable” means “permissible: not forbidden: not unlawful or improper.” Webster’s Third New International Dictionary (1986). Thus, a deduction is “allowable” under the Code if some provision of the Code permits it to be taken as a deduction and no other provision of the Code acts to limit or forbid it as a deduction. See Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”)_
Not only is such a construction consistent with the common meaning of the word, it is consistent with the usage of the word in the context of the IRC_Thus, “allowable” deductions are those deductions permitted and not otherwise forbidden or limited by the IRC, whether or not they are actually used and regardless of their lack of tax benefit.
Sharp v. United States, 14 F.3d 583, 587-88 (Fed.Cir.1993) (emphasis added).
While adjustments to basis must be made to the extent of the amount of depreciation either allowed or allowable as deductions, no adjustment is permitted or required to the extent of disallowed deductions. § 1016(a)(2); Petrich v. Comm’r, 40 T.C.M. (CCH) 303, 306 (T.C.1980), aff'd, 676 F.2d 712 (9th Cir.1982) (Table) (holding that it was improper for the Service to adjust basis under § 1016(a)(2) where the property at issue was not property *79on which depreciation deductions were allowable).
Section 161 of the Code prohibits deductions for amounts of depreciation allocable to tax exempt income, stating:
In computing taxable income under section 63, there shall be allowed as deductions the items specified in this part, subject to the exceptions provided in part IX (see. 261 and following, relating to items not deductible).
§ 161.
The genera] rule governing deductions is stated in § 261:
In computing taxable income no deduction shall in any ease be allowed in respect of the items specified in this part.
§ 261. Section 265(a)(1) states further:
No deduction shall be allowed for (1) Expenses. — any amount otherwise allowable as a deduction which is allocable to one or more classes of income other than interest (whether or not any amount of income of that class or classes is received or accrued) wholly exempt from the taxes imposed by this subtitle....
§ 265(a)(1). Thus, under the clear language of §§ 161, 261 and 265(a)(1), deductions for depreciation allocable to tax exempt income are expressly forbidden.
Under the FSC Regime, Each Aircraft’s Adjusted Basis Should Not Reflect the 30-Percent Depreciation Deductions Allocable to Tax Exempt Foreign Trade Income.
Plaintiff correctly argues that because the FSC regime disallowed 30 percent of the depreciation deductions generated during the aircraft’s lease, those deductions were not “allowable” under § 1016. “[A] deduction is ‘allowable’ under the Code if some provision of the Code permits it to be taken as a deduction and no other provision of the Code acts to limit or forbid it as a deduction.” Sharp, 14 F.3d at 587-588 (citing Perrin, 444 U.S. at 42, 100 S.Ct. 311). Because § 921(a) allocated deductions to exempt foreign trade income and because deductions allocable to tax-exempt income are forbidden under § 265(a)(1), 30 percent of the aircraft’s depreciation deductions were not “allowable” under § 1016. Therefore, as Plaintiff concludes, each aircraft’s adjusted basis should not reflect the 30 percent of the aircraft’s depreciation deductions allocated to the tax-exempt foreign trade income. Rather, this basis should take into account only the deductions allowable in proportion to the aircraft’s non-exempt foreign trade income. Because Plaintiff mistakenly decreased the basis in each aircraft by amounts representing the 30 percent depreciation deductions, their adjusted bases generated erroneous inflated gains, warranting the claimed tax refund.
Defendant’s Two-Assets Theory
3
Defendant does not contest Plaintiffs position that 30 percent of the aircraft’s depreciation deductions were not “allowable” under § 1016. Rather, in a novel argument, Defendant posits that each individual aircraft should be treated as two separate assets: a depreciable aircraft generating non-exempt foreign trade income, and a nondepreciable aircraft generating exempt foreign trade income.
According to Defendant, “[wjhen each aircraft is treated as two separate properties pursuant to § 1016, Treas. Reg. § 1.167(a)-5, and Hill, the resultant computations reveal that plaintiff has not made any overpayment of tax.” Def.’s Cross Mot. for Summ. J. at 23. Defendant elaborates:
Peak purchased its aircraft for $127,500,000 in 1990 and then sold that aircraft in 2005 for $114,750,000. During the intervening time, Peak took a total of $40,935,712 in depreciation deductions allocated to nonexempt [foreign trade income]. The $17,543,876 in depreciations deductions allocated to exempt [foreign trade income], were disallowed pursuant to § 265(a)(1). Thus, the relevant computations with respect to the aircraft sold by Peak are as follows:
*80Asset No. 1 Asset No. 2 (70% (30% Sale of Peak Aircraft Nonexempt) Exempt)
Initial Purchase Cost $89,250,000 $38,250,000
Allowed/Allowable $40,935,712 $ 0 4 Depreciation
Tax Basis $48,314,288 $38,250,000
Proceeds/Sale $80,325,000 $34,425,000
Taxable Gain (Loss) $32,010,712 $ 0 5
Consequently, with respect to the sale of the Peak aircraft, plaintiff would record in its Subpart F income, $32,010,712 in gain realized upon the sale of that portion of the aircraft that generated nonexempt [foreign trade income] (Asset No. 1, in the chart above). Plaintiff, however, would include none of the loss sustained on the sale of the portion of the aircraft that generated exempt [foreign trade income] (Asset No. 2, above), because deductions allocated to exempt [foreign trade income] are expressly disallowed by § 265(a)(1). Inasmuch as plaintiff properly paid tax on $32,010,711.60 in gain on the sale of the Peak aircraft ... it is not entitled to a refund of that tax.
The relevant computations with respect to FSC V are substantially identical and confirm that plaintiff properly paid tax on $31,614,710.40 in gain on the sale of the FSC V aircraft and is, thus, not entitled to a refund.
Def.’s Cross Mot. for Summ. J. at 23-24 (citations omitted).
Using its two-assets theory, Defendant submits that Treasury Regulation 1.167(a)-5 would apply to the aircraft to justify the above construct. This regulation provides:
In the ease of the acquisition on or after March 1,1913, of a combination of depreciable and nondepreciable property for a lump sum, as for example, buildings and land, the basis for depreciation cannot exceed an amount which bears the same proportion to the lump sum as the value of the depreciable property at the time of acquisition bears to the value of the entire property at that time.
26 C.F.R. § 1.167(a)-5 (2011). Treasury Regulation 1.167(a)-5 applies to a combination of property that is “depreciable” and “nondepreciable” at the “time of acquisition.” As the Federal Circuit has stated, whether an asset is of a character subject to depreciation depends on whether the property is subject to “ ‘exhaustion, wear and tear (including ... obsolescence),’ ” Arkla, Inc. v. United States, 37 F.3d 621, 624 (Fed.Cir.1994), and whether it is “used in a trade or business” or “held for the production of income,” § 167(a).
The sale of a single aircraft in the FSC regime does not fit within the plain language of Treasury Regulation 1.167(a)-5. Clearly, each airplane when acquired was not “a combination of depreciable and nondepre-ciable property.” Each airplane was fully depreciable, and the proper tax consequences on the sale of these aircraft have nothing to do with which characteristics of these aircraft were theoretically not depreciable. Rather, the tax consequences stem from the FSC regime which addresses a scenario substantially different from the acquisition of “a combination of depreciable and nondeprecia-ble property for a lump sum” addressed in Treasury Regulation 1.167(a)-5. In the situation sub judice, Congress implemented a policy to promote exports by bestowing tax benefits on exports — a policy which had nothing whatsoever to do with assessing the character of property as depreciable or nondepreciable or segregating such property into two assets for tax purposes. The policy, the FSC regime, bestowed a tax incentive on American firms to increase their exports in the form of exempting 30 percent of foreign trade income from tax. This statutory exemption had consequences for depreciation deductions and the calculation of gain upon sale. Defendant has not shown that Congress, by designating 30 percent of foreign trade income as exempt, transformed a sin*81gle asset generating foreign trade income into two separate assets, one “depreciable” and one “nondepreciable” within the meaning of Treasury Regulation 1.167(a) — 5. Defendant’s effort to import Treasury Regulation 1.167(a)(5) into the FSC regime is untenable.
Defendant also attempts to find parallels in situations involving the allocation of basis within a single asset used for both income-generating and non-income generating purposes, relying on Sharp v. United States, 199 F.Supp. 743 (D.C.Del.1961) (“Sharp II”). In Sharp II, the District Court for the District of Delaware addressed the proper treatment of tax basis for an aircraft, used partly for pleasure and partly to generate income, which was sold at a loss. The Sharp II court treated the aircraft as two assets for tax purposes and proportioned the basis according to the percentage of time the aircraft was used for each purpose. In support of its ruling, the Court cited Revenue Ruling 286, 1953-2 C.B. 20, which defined a tax-deductible “loss” (under then — § 23 of the Code) as including “[o]nly that part of a loss resulting from the sale of property used for both personal and income-producing purposes that can be allocated to the income-producing portion of the property....” Sharp II, 199 F.Supp. at 745 & n. 7 (quoting Rev. Rul. 286, 1953-2 C.B. 20). The Third Circuit, in a two-sentence per curiam opinion, affirmed. Sharp v. United States, 303 F.2d 783 (3d Cir.1962) (per curiam). Defendant also relies upon Snyder v. Commissioner, 34 T.C.M. (CCH) 965 (1975), which applied the same rationale as Sharp II to apportion the basis of an airplane according to the airplane’s dual use for pleasure and for business purposes.
Sharp II and Snyder are inapposite. This is not a situation where the aircraft were used for pleasure as well as business — they were exclusively business-use, fully deprecia-ble and subject to wholly unrelated statutory largess. The Sharp II court invoked Revenue Ruling 286, but Defendant has cited no pertinent regulatory authority to support its construct here. Defendant makes much of Sharp ITs statement that “taxpayers are clearly in error if it is their contention that courts will not regard a thing, normally accepted as an entity, as divisible for tax purposes.” Sharp II, 199 F.Supp. at 745. However, there must be some legal basis for dividing up a single entity for tax purposes. Here, nothing in the Code or Treasury Regulations required Plaintiff to treat each aircraft as two distinct assets for purposes of calculating the amount realized upon sale, and no authority supports the retroactive judicial imposition of such a methodology.
Conclusion
Plaintiffs cross-motion for summary judgment is GRANTED, and Defendant’s cross-motion is DENIED.
The Clerk of the Court is directed to enter judgment for Plaintiff in the amount of $8,554,919, representing an income tax refund for tax year 2005, plus such interest as is provided by law.
. This background is derived from the Joint Stipulation and the parties’ motion papers. There’ are no genuine issues of material fact.
. Hereinafter, unless otherwise indicated, all short form citations refer to Title 26 of the United States Code, (“Code” or "IRC”), as codified in 2000.
. Defendant did not raise this two-assets theory in the administrative proceedings or in the stipulation. Defendant raised this argument for the first time in briefing the subject motions.
. Asset No. 2 has $0 of allowed/allowable depreciation because the $17,543,876 of depreciation deductions allocated to exempt [foreign trade income] were disallowed pursuant to § 265(a)(1). (footnote in quoted text).
. While plaintiff has suffered a loss of $3,825,000 upon sale of Asset No. 2, that loss is disallowed pursuant to § 265(a)(1). (footnote in quoted text). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218251/ | OPINION and ORDER
HEWITT, Chief Judge.
Before the court is plaintiffs Complaint (Complaint or Compl), Docket Number (Dkt. No.) 1, filed May 7, 2012.1 Plaintiff alleges that a federal judge of the United States District Court for the Northern District of California (Northern District of California) “performed a non judicial act, and also acted in the clear absence of all jurisdiction” when she denied plaintiffs motion to confirm an arbitration award in that court. Compl. 1-2.2 *83Plaintiff seeks damages in the amount of $500,000,000,000, id. at 4, in a “Bivens action,” id. at 1. Plaintiff also argues that he is entitled to relief under the Federal Tort Claims Act (FTCA) and under the doctrine of respondeat superior. Id. at 4.
For the following reasons, the court DISMISSES, sua sponte, plaintiff’s Complaint pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) for lack of subject matter jurisdiction.
I. Background
Plaintiff appeal’s to be dissatisfied with the decision of a judge of the Northern District of California denying his motion to confirm an arbitration award. See id. at 2. Plaintiff states that he “submitted an email to Google, Inc., notifying them of a unilateral amendment I was imposing on their You[T]ube terms of service.” Id. at 1. The provisions that plaintiff attempted unilaterally to add to YouTube’s terms of service were:
[A]n arbitration clause which required all legal disputes whatsoever-even those not related to the contract — to be submitted to binding arbitration, and also ... a ‘forfeit victory clause,’ which stated that, if I sent them an invitation to arbitrate, and they do not accept it within 24 hours of receiving it, I automatically win the relief requested, regardless of the merits of the case.
Id. Under the terms of plaintiffs “unilateral amendment,” the amendment would be “deemed accepted” if Google did not cancel plaintiffs YouTube account within thirty days. Id. When Google did not cancel the account, plaintiff “sent Google an invitation to arbitrate a dispute for $500 billion ... [and Google] completely ignored the arbitration, thus triggering the forfeit victory clause.” Id. at 2.
Plaintiff states that he filed a motion to confirm the “arbitration award” in the Northern District of California. Id. According to plaintiff, the judge “denied the motion on two grounds: 1. The You[T]ube Terms of Service gave Google the right to unilaterally modify the terms of the You[T]ube contract, but not the consumer. 2. The forfeit victory clause was unenforceable as a matter of law.” Id. Plaintiff claims that the court committed a “non judicial action” because the YouTube contract was not in evidence and “[t]he Court instead went out and found the You[T]ube contract on the Internet, and used that to justify denying the motion.” Id. (emphasis omitted). Plaintiff also argues that the court lacked jurisdiction to “raise an affirmative defense” and to decide the enforceability of the forfeit victory clause (which plaintiff claims “must be decided by the arbitrator”). Id. at 3. Plaintiff states that the judge “wrongfully cost me literally billions of dollars.” Id. at 4.
Based on the foregoing allegations, plaintiff argues that he is entitled to relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the FTCA, and the doctrine of respondeat superior. See id. at 1, 4. He requests damages in the amount of $500,000,000,000, “that costs incurred be awarded, and that the Court award such other relief that it finds appropriate.” Id. at 4.
II. Legal Standards
A. Dismissal for Lack of Subject Matter Jurisdiction
“Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004); see also Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.2004) (“Subject matter jurisdiction is an inquiry that this court must raise sua sponte, even where, as here, neither party has raised this issue.”). “In deciding whether there is subject-matter jurisdiction, ‘the allegations stated in the complaint are taken as true and jurisdiction is decided on the face of the pleadings.’ ” Folden, 379 F.3d at 1354 (quoting Shearin v. United States, 992 F.2d 1195, 1195-96 (Fed.Cir.1993)). Although complaints filed by pro se plaintiffs are generally held to “less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), pro se plaintiffs nevertheless must meet jurisdictional requirements, Ber *84nard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (unpublished); see also Kelley v. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed.Cir.1987) (“[A] court may not similarly take a liberal view of [a] jurisdictional requirement and set a different rule for pro se litigants only.”). If the court determines that it does not have subject matter jurisdiction, it must dismiss the claim. RCFC 12(h)(3).
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 unliq-uidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2006). 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, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Accordingly, the Tucker Act provides the court with jurisdiction over suits “against the United States.” 28 U.S.C. § 1491(a)(1). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in order for the case to proceed. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin. (Jan’s Helicopter), 525 F.3d 1299, 1306 (Fed.Cir.2008).
B. Transfer for Lack of Subject Matter Jurisdiction
Under 28 U.S.C. § 1631, a federal court may transfer a ease to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the case 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. 28 U.S.C. § 1631; see also Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed.Cir.1988) (citing Town of N. Bonneville, Wash. v. U.S. District Court, 732 F.2d 747, 750 (9th Cir.1984)).
III. Discussion
For the following reasons, plaintiffs Complaint is dismissed for lack of subject matter jurisdiction pursuant to RCFC 12(h)(3). Additionally, the court finds that transfer of plaintiffs case to another federal court is not appropriate.
A. The Court Lacks Jurisdiction Over Plaintiffs Claims
1. The Court Lacks Jurisdiction Over Bivens Actions
Plaintiff characterizes his claim as a “Bivens action.” Compl. 1. To the extent that plaintiffs Complaint states a claim against a government official in her individual capacity pursuant to Bivens, 403 U.S. 388, 91 S.Ct. 1999, that claim must be dismissed for lack of jurisdiction. “The Tucker act grants the [United States] Court of Federal Claims [ (Court of Federal Claims) ] jurisdiction over suits against the United States, not against individual federal officials.” Brown v. United States, 105 F.3d 621, 624 (Fed.Cir.1997) (citing 28 U.S.C. § 1491(a)); see also United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (holding that the jurisdiction of the Court of Federal Claims is limited to suits against the United States); Treece v. United States, 96 Fed.Cl. 226, 231 (2010) (dismissing plaintiffs Bivens claim for lack of subject matter jurisdiction).
2. The Court Lacks Jurisdiction Over Plaintiffs Claims Pursuant to the FTCA and the Doctrine of Respondeat Superior
Plaintiff states that he is entitled to relief under the FTCA, arguing that under the FTCA “the United States is liable for the actions of its officers, to the same extent as those officers are liable.” Compl. 4. Plaintiff also seeks relief under a theory of responde-at superior. Id.
The United States District Courts have exclusive jurisdiction to hear claims brought against the United States under the FTCA. 28 U.S.C. § 1346(b); Treece, 96 Fed.*85Cl. at 232 n. 8. Therefore, to the extent that plaintiff states a claim under the FTCA, that claim is dismissed for lack of subject matter jurisdiction.
The common law doctrine of respon-deat superior alone is not a money-mandating “contract, regulation, statute or constitutional provision” under 28 U.S.C. § 1491. 28 U.S.C. § 1491(a)(1); see also Jan’s Helicopter, 525 F.3d at 1306. Plaintiff cannot recover in the Court of Federal Claims simply by arguing that the United States is responsible, under the doctrine of respondeat superior, for the actions of a federal judge with whose decision plaintiff is dissatisfied. Cf. Hammitt v. United States, No. 06-236 C, 2006 WL 5667959, at *1-2 (Fed.Cl. Oct. 19, 2006) (unpublished) (dismissing for lack of subject matter jurisdiction plaintiff’s claim that the United States was responsible, under the doctrine of respondeat superior, for the actions of several government officials).
B. Transfer of the Case to Another Court Is Not Appropriate
Although not requested to do so by plaintiff, the court considers sua sponte whether “it is in the interest of justice” to transfer plaintiff’s Complaint to another court under 28 U.S.C. § 1631. See Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1374-75 (Fed.Cir.2005) (stating that the Court of Federal Claims should have considered whether transfer was appropriate once the court determined that it lacked jurisdiction and noting that the court may “order[ ] transfer without being asked to do so by either party”). The court considers transfer in this ease because plaintiff is proceeding pro se, see Skillo v. United States, 68 Fed.Cl. 734, at 743 n. 15 (2005) (“Although plaintiffs have not requested a transfer, because they are proceeding pro se, the court addresses the possibility.”), and because the transfer statute language “persuasively indicates that transfer, rather than dismissal, is the option of choice,” Britell v. United States, 318 F.3d 70, 73 (1st Cir.2003). “The court will transfer a ease when a plaintiff articulates a clearly stated and non-frivolous complaint.” Schrader v. United States, 103 Fed.Cl. 92, 101 (2012) (citing Phang v. United States, 87 Fed.Cl. 321, 330-31 (2009) (determining that it was not in the interest of justice to transfer plaintiff’s claims because, in the court’s view, plaintiffs claims were “unlikely to be meritorious in another court of the United States”), aff'd, 388 Fed.Appx. 961 (Fed.Cir.2010) (unpublished)). The court determines that it is not “in the interest of justice” to transfer plaintiffs Complaint, see Tex. Peanut Farmers, 409 F.3d at 1374, because plaintiffs claims are “unlikely to be meritorious in another court of the United States,” see Phang, 87 Fed.Cl. at 330.
IV. Conclusion
The Clerk of Court is directed to DISMISS plaintiffs Complaint.
IT IS SO ORDERED.
. Plaintiff also submitted an Application to Proceed In Forma Pauperis (IFP Application or IFP Appl.), Docket Number (Dkt. No.) 2, filed May 7, 2012. Plaintiff's IFP Application is unsigned. See IFP Appl. 2. Pursuant to Rule 11 of the Rules of the United States Court of Federal Claims (RCFC), every paper submitted to the Court must be signed. See RCFC 11(a) (noting that "[e]very pleading, written motion, and other paper must be signed by ... a party personally if the party is unrepresented”). Because the IFP Application is unsigned, and because the Complaint must be dismissed for lack of subject matter jurisdiction, see infra Part III.A, plaintiff's IFP Application is DENIED without prejudice.
. The pages of plaintiffs Complaint are not numbered. For ease of reference, the court treats the four pages as though they were numbered pages 1-4. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218252/ | OPINION AND ORDER
LETTOW, Judge.
Plaintiff Joseph Johnson, Jr., seeks damages and equitable relief from the United States (“the government”) for alleged negligence, violation of the Administrative Procedure Act, and breach of contract by the Department of Education (“the agency”) in connection with consolidated educational loans. Pending before the court are two motions. The government has moved to dismiss the case for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, and plaintiff has moved to transfer the case to the United States District Court for the District of Columbia.
BACKGROUND
Mr. Johnson obtained educational loans to fund his studies at the University of Maryland, University College (“the university”). He attended class at the university from the fall of 1993 to the beginning of the spring *88semester in 1996. Each of his seven claims traces back to the debt incurred during this period, but the claims differ significantly in their specific factual underpinnings.
A. Mr. Johnson’s 1996 Direct Loans
In the spring of 1996, Mr. Johnson registered for three courses at the university: “Introduction to Writing,” “Legal Ethics,” and “Litigation.” Compl. ¶ 7. To pay for these courses, the university applied $3,600 in federal loans to Mr. Johnson’s student account. Compl. ¶8. Shortly after the semester began, however, Mr. Johnson withdrew because he was incarcerated. Compl. ¶ 9; see Johnson v. United States Dep’t of Educ., 580 F.Supp.2d 154 (D.D.C.2008), aff'd without opinion, No. 08-5468, 2009 U.S.App. LEXIS 7793 (D.C.Cir. Apr. 10, 2009). The university credited Mr. Johnson’s student account for the tuition for two of the three courses and for one-half of the tuition for the third class, such that he owed the school only $261.00. Compl. ¶ 12. According to the university’s financial policies, it was supposed to refund Mr. Johnson’s federal loans for this period to the government. Compl. Ex. 4, Attach. B. And indeed, according to its records, the university issued two refunds totaling $2,556 in late January 1996. Compl. Ex. 4, Attach. C.1 At some point unspecified by plaintiff, the government’s Direct Loan Servicing Center notified Mr. Johnson that he owed $3,750.00 (including accrued interest) for his tuition during the spring of 1996. Compl. ¶ 13. From this fact, Mr. Johnson infers that the university never returned the $2,556 to the Department of Education. Compl. ¶ 15 & Ex. 2, at 1.
When Mr. Johnson communicated with the university on the subject in 2011, the school stated that any refund would have been made to the government back in 1996. Compl. Ex. 3. The university gave Mr. Johnson the numbers of two refund checks it claimed to have sent, but it was unable to furnish copies of those checks because it had been fifteen years since Mr. Johnson had withdrawn his enrollment. Compl. Ex. 3, at 2. In March 2011, Mr. Johnson submitted an application to the Department of Education to have his loan discharged pursuant to 34 C.F.R. § 685.216(a)(2)(i), a regulation that provides for the discharge of a student-borrower’s obligation that should have been refunded by the school. Compl. ¶ 18.2 The Department denied the application on April 1, 2011, on the ground that the pertinent tuition amount had been refunded by the university at the time of withdrawal. Compl. Ex. 5.
B. Mr. Johnson’s 2004 Consolidation Loan
On April 22, 2004, Mr. Johnson applied for a loan through the Federal Direct Consolidation Loan Program. See Compl. Ex. 7. This program lends money to individuals to enable them to consolidate disparate federal educational loans into a single debt instrument. See 34 C.F.R. § 685.100(a)(4). As part of the application, Mr. Johnson had to list the loans he wished to consolidate. The bulk of his debt derived from two loans from Sallie Mae, presumably incurred to fund his studies at the University of Maryland, University Col*89lege. Compl. Ex. 7. On April 28, 2004, Sallie Mae certified that Mr. Johnson owed it $20,665.70. Compl. Ex. 9.3 Sallie Mae and Mr. Johnson then reached a compromise by which Mr. Johnson settled his debt with Sallie Mae by agreeing to pay $18,000. Compl. Ex. 6. On December 13, 2004, the government’s Direct Loan Servicing Center approved Mr. Johnson’s application and used the funds to pay off his prior educational loans, disbursing $20,747.02. Compl. ¶ 32 & Ex. 7.
Mr. Johnson presents two claims respecting the consolidation loan. First, he alleges that the government overpaid Sallie Mae. Compl. ¶¶ 29-35. He contends that under the loan consolidation agreement, “[i]f the amount [the agency] provides to [the borrower’s] holder(s) exceeds the amount needed to pay off the balance(s) of the selected loan(s), [the borrower] understands that the holder will refund the excess to [the agency] for application against the outstanding balance of this loan.” Compl. Ex. 1, at 3. In late 2010, Mr.’ Johnson notified the government’s Direct Loan Servicing Center of its alleged overpayment to Sallie Mae and asked it to apply this amount to the balance of his consolidated loan. Compl. ¶ 33; Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 7. He avers that the Center refused to do so, but he has not provided the pertinent communication (if any) from the Center.
Second, Mr. Johnson claims that Sallie Mae was not the rightful recipient of any funds from the consolidation loan. Compl. ¶¶ 36-61. This averment may be moot. In a separate lawsuit between Sallie Mae and Mr. Johnson, Sallie Mae disclaimed ever receiving payment from the Federal Direct Loan Program pursuant to Mr. Johnson’s consolidation loan. Compl. Ex. 10. Sallie Mae stated that “the Department of Education made the consolidation payment to United Student Aid Funds, Inc., the guarantor of [Mr. Johnson’s] student loans, not to Sallie Mae.” Compl. Ex. 10, at 1. Moreover, many years prior, in 1997, Sallie Mae sent Mr. Johnson a letter informing him that it had filed a claim on his student loans and transferred them to the guarantor, United Student Aid Funds. Compl. Ex. 11, at 7. Mr. Johnson claims that the letter was sent to an address where he did not live, and consequently he did not receive it until February 9, 2011, in connection with his lawsuit against Sallie Mae. Pl.’s Opp’n at 8 n. 2.
On May 10, 2011, Mr. Johnson told the Direct Loan Servicing Center that it had erroneously paid Sallie Mae back in 2004 and requested that the government recover the money it had given to Sallie Mae and cancel the consolidation agreement. Compl. Ex. 11, at 3-4. The Center has not done so.
C. The Administration of the Consolidation Loan
In addition to questioning the proper amount and recipient of his consolidation loan, Mr. Johnson alleges various errors in the administration of that loan. Compl. ¶¶ 62-93. He avers that on multiple occasions, he sent the Direct Loan Servicing Center a check which the Center did not deposit. Compl. ¶¶ 75-82. Most recently, Mr. Johnson included with his check a letter stating that, if the Loan Servicing Center failed to process the check, it agreed to forfeit the right to collect the face-value of that check. Compl. ¶¶ 83-85 & Ex. 16. Mr. Johnson alleges that the Loan Servicing Center did not deposit the cheek. Compl. ¶ 87. Rather, he says the Center has treated all of these failed payments as delinquent and has continued to assess interest against Mr. Johnson on the amounts he has attempted to pay. See, e.g., Compl. ¶ 78.
Finally, Mr. Johnson also avers that the Center has improperly calculated the interest that he owes. Compl. ¶¶ 90-93. The promissory note attendant to his consolidated loan provides that the Department of Education may capitalize interest that accrues but is not paid when due. Compl. Ex. 1, at 2. Mr. *90Johnson claims that the Department has capitalized interest before it was due. Compl. ¶ 92. He has not provided additional facts regarding this claim.
D. Proceedings in Other Courts
This is Mr. Johnson’s fifth attempt to convince an adjudicatory body to erase all or part of his student debt. He first sued in the United States District Court for the District of Columbia to compel the Department of Education to cancel his loans. See Johnson v. United States Dep’t of Educ., 580 F.Supp.2d 154. Mr. Johnson alleged that the agency had denied his application for a loan discharge in violation of the Administrative Procedure Act and the Higher Education Act. Id. at 155. The district court granted summary judgment to the agency, upholding its decision as “consistent with the applicable regulation.” Id. at 157. Unsatisfied with this outcome, Mr. Johnson appealed the judgment to the United States Court of Appeals for the District of Columbia Circuit and filed motions to have the case remanded for consideration of additional evidence — all without success. See Johnson v. Duncan, 746 F.Supp.2d 163, 166 (D.D.C.2010), appeal dismissed, No. 10-5375, 2011 WL 186574 (D.C.Cir. Jan. 19, 2011).
In 2010, Mr. Johnson filed a second lawsuit in the United States District Court for the District of Columbia “seeking the same relief that he sought in his [earlier] suit.” Johnson v. Duncan, 746 F.Supp.2d at 167. His complaint reiterated the counts from his previous action and asserted a new legal theory premised on the Fifth Amendment. Id. The court granted the government’s motion to dismiss on the grounds of res judicata and collateral estoppel. Id. at 168.
Undeterred, Mr. Johnson filed a third lawsuit — this one in the United States District Court for the Northern District of Texas— against the government contractor responsible for servicing his loan. Johnson v. Affiliated Computer Servs., Inc., No. 3:10-CV-2333-B, 2011 WL 4011429, at *1 (N.D.Tex. Sept. 9, 2011), appeal pending, No. 12-10184 (5th Cir.). He claimed that the company failed to process properly his request for a loan discharge, id., and sought relief under seven separate causes of action, id. at *3. The court granted the defendant’s motion to dismiss all counts, id. at *10, and excoriated Mr. Johnson for “burdensome, frivolous, and reprehensible” conduct in the litigation, id. at *2.
In addition to these federal suits, Mr. Johnson has looked to a local tribunal for relief from his student debt. In 2006, he brought an action before a Maryland administrative law judge disputing the $261.00 he owed for his final semester at the university. Johnson v. Central Collection Unit, Dep’t of Budget & Mgmt., DBAM-CCU-01-06-47614 (Md. Office of Admin. Hr’gs Apr. 9, 2007) (Compl. Ex. 4, Attach. A). The assigned administrative law judge found that Mr. Johnson was responsible for this sum, plus collection costs. Id. at 6.
E. Proceedings in this Court
Mr. Johnson filed his complaint in this court on December 27, 2011, stating seven claims against the government. Five of these counts are for breach of contract, and the other two allege negligence and violation of the Administrative Procedure Act. On February 27, 2012, the government filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims. Mr. Johnson responded by submitting both an opposition and a motion to transfer the ease to the United States District Court for the District of Columbia. Both motions have been fully briefed by the parties and are now ready for disposition.
STANDARDS FOR DECISION
A “court must satisfy itself that it has jurisdiction to hear and decide a case before proceeding to the merits.” Hardie v. United States, 367 F.3d 1288, 1290 (Fed.Cir.2004) (internal quotation marks omitted) (quoting PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed.Cir.2002)). In addressing a motion to dismiss for lack of subject matter jurisdiction, the court will “normally consider the facts alleged in the complaint to be true and correct.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), *91abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The burden of establishing the court’s jurisdiction rests upon the party seeking to invoke it, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), and this burden is not satisfied until proven by a preponderance of the evidence. Reynolds, 846 F.2d at 748.4
The Tucker Act grants this court “jurisdiction to render judgment upon 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 waives sovereign immunity and enables a plaintiff to sue the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), but it does not itself create a substantive right to monetary relief from this court, United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); see also Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed.Cir.2003) (en bane). “A substantive right must be found in some other source of law.” Mitchell, 463 U.S. at 216, 103 S.Ct. 2961. Accordingly, to satisfy the jurisdictional requirements of the Tucker Act, the plaintiff must point to an independent, substantive source of law that mandates payment from the United States for the injury suffered.
Ordinarily, “[i]f a court lacks jurisdiction to decide the merits of a ease, dismissal is required as a matter of law.” Gray v. United States, 69 Fed.Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed.Cir.1985)). Nonetheless, in some eases, transfer may be an option. Gray, 69 Fed.Cl. at 98. Pursuant to 28 U.S.C. § 1631, if a “court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer [the] action ... to any other such court in which the action ... could have been brought at the time it was filed.” In effect, three prerequisites exist for transferring a case: “(1) the transferor court lacks jurisdiction; (2) the action could have been brought in the transferee court at the time it was filed; and (3) transfer is in the interest of justice.” Zoltek Corp. v. United States, 672 F.3d 1309, 1314 (Fed.Cir.2012) (en bane).
ANALYSIS
A. Plaintiffs Non-Contract Claims
Mr. Johnson’s complaint contains two counts that are not for breach of contract. Count one seeks damages for agency action that allegedly contravenes the Administrative Procedure Act (“APA”), 5 U.S.C. § 704, and possibly Section 437 of the Higher Education Act Amendments of 1986, 20 U.S.C. § 1087. Compl. ¶¶ 6-22. Count four requests damages due to the negligence of the agency.
1. Alleged violations of the APA and Higher Education Act.
Mr. Johnson alleges that the Department of Education acted arbitrarily and capriciously in denying his request for a loan discharge under 34 C.F.R. § 685.216(a)(2)(i). Compl. ¶ 22. The government responds that this court cannot hear claims under either the APA or the Higher Education Act, because they are not money-mandating statutes.
As discussed supra, plaintiff cannot establish jurisdiction simply by alleging a violation of law; he must identify a money-mandating statute or regulation that the government has purportedly contravened. Ferreiro v. United States, 501 F.3d 1349, 1351-52 (Fed.Cir.2007) (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir. *922005) (en banc in relevant part)). A money-mandating source of law is one which “can fairly be interpreted as mandating compensation by the [fjederal [government for the damage sustained.” Mitchell, 463 U.S. at 217, 103 S.Ct. 2961 (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948). In determining whether a law is money-mandating, the court “must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions.” United States v. Navajo Nation, 537 U.S. 488, 506, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003). Such laws require a payment to a person under specific conditions, typically indicated by language indicating that the individual is “entitled” to compensation or that the government “shall” pay him or her. Doe v. United States, 463 F.3d 1314, 1325 (Fed.Cir.2006); Agwiak v. United States, 347 F.3d 1375, 1380 (Fed.Cir.2003).
It is well settled that the APA is not a money-mandating statute. This is because “the APA does not authorize an award of money damages at all; to the contrary, [Section 10(a) of the APA, 5 U.S.C. § 702, specifically limits the Act to actions ‘seeking relief other than money damages.’ ” Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed.Cir.2006); see also Fulbright v. United States, 97 Fed.Cl. 221, 227 (2011) (“[T]he APA is, by definition, not a money-mandating statute.” (citing Martinez, 333 F.3d at 1313)), appeal dismissed, 464 Fed.Appx. 871 (Fed.Cir.2012). Consequently “the Court of Federal Claims lacks APA jurisdiction.” Martinez, 333 F.3d at 1313 (citing Murphy v. United States, 993 F.2d 871, 874 (Fed.Cir.1993)).
Nor would Mr. Johnson’s claim have greater success if framed under the Higher Education Act or its regulations. The statute provides that, under certain conditions, the Secretary of Education “shall discharge the borrower’s liability on the loan ... by repaying the amount owed on the loan.” 20 U.S.C. § 1087(c)(1). Yet this provision “cannot fairly be read as conferring upon a ... borrower ‘a substantive right to recover money damages against the United States.’ ” Faison v. United States, 102 Fed.Cl. 637, 642 (2012) (quoting Spehr v. United States, 51 Fed.Cl. 69, 93 (2001), aff'd per curiam, 49 Fed.Appx. 303 (Fed.Cir.2002)) (interpreting identical language in 20 U.S.C. § 1087(a)(1)). The statute merely instructs the Secretary of Education to discharge the borrower’s debt, which is not the same as paying him. Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Department of Homeland Sec., 490 F.3d 940, 945 (Fed.Cir.2007) (“[Tjhere is a substantive difference between a plaintiff seeking the return of money it already paid the government and a plaintiff never having to pay the government in the first place.”).
The corresponding regulation, 34 C.F.R. § 685.216, likewise does not serve as a money-mandating source of law for Mr. Johnson. It does indicate that a borrower could be eligible for a reimbursement if the amount discharged proved to be greater than the outstanding balance of his loan. See 34 C.F.R. § 685.216(b)(1) (“If the borrower receives a discharge of a portion of a loan ..., the borrower is reimbursed for any amounts paid in excess of the remaining balance of the loan ... owed by the borrower at the time of discharge.”); cf. Lankster v. United States, 87 Fed.Cl. 747, 752-57 (2009) (addressing regulations providing for refund of loan amounts paid after the borrower becomes totally and permanently disabled). However, Mr. Johnson has not alleged that he paid an amount greater than the loan balance. In fact, the amount he disputes with the university is a fraction of the original principal of the loan. See Compl. Ex. 7. In short, Mr. Johnson has failed to make “a nonfrivolous assertion that [he] is within the class of plaintiffs entitled to recover under the money-mandating source.” Jan’s Helicopter Serv., Inc. v. Federal Aviation Admin., 525 F.3d 1299, 1307 (Fed.Cir.2008). Thus count one of the complaint fails for lack of subject matter jurisdiction.
2. Alleged negligence.
The fourth count of Mr. Johnson’s complaint seeks damages on the grounds that the agency negligently paid Sallie Mae in the process of consolidating his loans. Compl. ¶¶ 36-49.5 The Tucker Act confines *93this court’s jurisdiction to “eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Plaintiffs allegation of negligence is an archetypal tort claim. See, e.g., Naskar v. United States, 82 Fed.Cl. 319, 321 (2008) (“Because plaintiffs claim is for damages due to negligence, it sounds in tort and the Court of Federal Claims does not have jurisdiction over it.” (citing Souders v. South Carolina Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed.Cir.2007))). Accordingly, the court also lacks jurisdiction over count four.
B. Plaintiffs Contract Claims
The rest of Mr. Johnson’s claims are for breach of his 1996 and 2004 loan agreements with the Department of Education. The government challenges the court’s jurisdiction over these claims on the grounds that they either are untimely or are not requests for relief in the form of money damages.
1. Statute of limitations.
Under the statute of limitations applicable to claims under the Tucker Act, a claim must be brought within six years from when the cause of action accrued. 28 U.S.C. § 2501 (“Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.”). The parties dispute when plaintiffs claims accrued for counts three and five of his complaint. In count three, Mr. Johnson alleges that the agency overpaid the lender $2,747.02 during his loan consolidation process. He further avers that if the amount sent by the government under the Federal Direct Consolidation Loan Promissory Note exceeded the amount needed to pay off the balances of his selected loans, then the excess should have been refunded to the government and applied against the outstanding balance of his consolidated loan. Compl. ¶ 30. The government argues that any claim Mr. Johnson might have in this regard accrued in December 2004, when the agency informed plaintiff that it paid $20,747.02 instead of $18,000 per Mr. Johnson’s compromise agreement with Sallie Mae. Def.’s Mot. to Dismiss at 15-16. Mr. Johnson contends that his claim did not accrue until he asked the government to refund the excess amount and the government refused on November 10, 2010. PL’s Opp’n at 7.
Mr. Johnson’s argument respecting accrual is without merit. The six-year countdown starts once “all the events which fix the government’s alleged liability have occurred and the plaintiff was or should have been aware of their existence.” Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 672 F.3d 1021, 1030 (Fed.Cir.2012) (emphasis omitted) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.Cir.1988)); see also Martinez, 333 F.3d at 1303 (holding that a claim accrues when “all events have occurred ... [that] entitle] the claimant to demand payment and sue here for his money” (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct.Cl.1966))). Here, the government overpaid Mr. Johnson’s loan-holder in December 2004. At that point, Mr. Johnson’s claim accrued and he was entitled to demand relief. In other regulatory and statutory regimes, a plaintiff might be obliged to pursue administrative remedies, such as asking the agency for a refund, before bringing suit. Cf. Samish Indian Nation v. United States, 419 F.3d 1355, 1369 (Fed.Cir.2005) (“If a necessary element to a claim must be established in a different forum, the claim will not accrue for § 2501 until that element is finally established in the other proceeding.”). Here, however, there was no requirement that Mr. Johnson first approach the Department of Education prior to filing his complaint. The claim in count three accrued some seven years before the present lawsuit commenced, and so it is barred by the statute of limitations.
The accrual date for the claim in count five is not as straightforward. In that count, Mr. Johnson alleges that the Department of Education improperly paid Sallie Mae during the 2004 consolidation process. *94Mr. Johnson contends that it was not until February 9, 2011 that he learned that Sallie Mae was the improper recipient of those funds. See Pl.’s Opp’n at 8 n. 2. The government responds that Mr. Johnson should have known that he was no longer indebted to Sallie Mae sometime after February 13,1997, the approximate date when Sallie Mae transferred its claim on plaintiffs loans to United Student Aid Funds, Inc., the guarantor of the student loans. Def.’s Reply at 5-6; see also Compl. Ex. 10.
In determining when Mr. Johnson knew or should have known of the transfer of his debt, the court employs an objective standard. Shoshone Indian Tribe, 672 F.3d at 1030 (“The question whether the pertinent events have occurred is determined under an objective standard; a plaintiff does not have to possess actual knowledge of all the relevant facts in order for the cause of action to accrue.” (quoting Fallini v. United States, 56 F.3d 1378, 1380 (Fed.Cir.1995))). As the party bearing the burden of establishing subject matter jurisdiction, it is not enough for Mr. Johnson to disclaim knowledge of the relevant events; he must “demonstrate that [he] could not have reasonably known the facts fixing the [government's alleged liability” by a preponderance of the evidence. Mildenberger v. United States, 643 F.3d 938, 945 (Fed.Cir.2011).
Mr. Johnson has not carried this burden. A reasonable person would have known that Sallie Mae was no longer the loan-holder well before the 2004 consolidation loan was entered. The court acknowledges Mr. Johnson’s averment that he never received the letter sent by Sallie Mae on February 13, 1997, which would have informed him that United Student Aid Funds was his new creditor. See Pl.’s Opp’n at 8 n. 2. Nonetheless, this still leaves a period of over seven year’s in which Mr. Johnson apparently made no attempt to make a payment, discuss his ability to pay, or otherwise confirm the entity to which he still owed the debt. Indeed, so far as can be gleaned from the pleadings and briefs, Mr. Johnson simply ignored his student loans altogether during this seven-year period. This is hardly the behavior of a reasonable person. Cf. Diamond v. Davis, 680 A.2d 364, 370 (D.C.1996) (“[A] cause of action accrues ... when the plaintiff ... is deemed to be on inquiry notice because if she had met her duty to act reasonably under the circumstances in investigating matters affecting her affairs, such an investigation, if conducted, would have led to actual notice.”). Mr. Johnson has not demonstrated that he “could not have reasonably known the facts” surrounding the ownership of his debt prior to the consolidation agreement. See Mildenberger, 643 F.3d at 945. Additionally, the Federal Direct Consolidation Loan Verification Certificate issued April 28, 2004, shows a payoff amount of $20,665.70, not $18,000. Compl. Ex. 9. Consequently, his claim for count five accrued over seven years before Mr. Johnson filed suit in this court.
2. Availability of monetary damages.
Under the Tucker Act, the court’s jurisdiction extends only to eases concerning “actual, presently due money damages from the United States.” Todd v. United States, 386 F.3d 1091, 1093 (Fed.Cir.2004) (quoting Testan, 424 U.S. at 398, 96 S.Ct. 948). The Tucker Act provides that limited equitable relief may be available in narrow circumstances if it is “incidental to and collateral to a claim for money damages.” Bobula v. United States Dep’t of Justice, 970 F.2d 854, 859 (Fed.Cir.1992) (citing 28 U.S.C. § 1491(a)(2)); Geneva Rock Prods., Inc. v. United States, 100 Fed.Cl. 778, 785 (2011) (“[T]his court’s jurisdiction ... primarily concerns claims for liquidated or unliquidated damages against the United States, with equitable relief allowed only in expressly specified instances.” (internal quotation marks and citation omitted)). Indeed, since the court’s inception, the general rule has been that “the only judgments which the Court of Claims [is] authorized to render ... are judgments for money found due from the government to the petitioner,” United States v. Alire, 73 U.S. (6 Wall.) 573, 575, 18 L.Ed. 947 (1867), with exceptions stated in later-enacted specific statutes.
In its motion to dismiss, the government contends that none of Mr. Johnson’s seven claims fall within the ambit of the Tucker Act because they are not for monetary damages. *95The government argues that Mr. Johnson is not seeking payment from the U.S. Treasury but rather is requesting discharge of all or part of his debt to the Department of Education. Def.’s Mot. to Dismiss at 8-10. Though such a claim may bear a superficial resemblance to monetary damages, the government avers that it amounts to equitable relief. Id.6 Mr. Johnson responds that he is entitled to monetary damages for the government’s breach of contract. Pl.’s Opp’n at 3. He argues that his claims would result in money being paid from the public fisc, even if only to offset the disputed debt. Id. at 4.
Mr. Johnson correctly notes that “when a breach of contract claim is brought in the Court of Federal Claims under the Tucker Act, the plaintiff comes armed with the presumption that money damages are available.” Holmes v. United States, 657 F.3d 1303, 1314 (Fed.Cir.2011). However, this presumption is not always borne out, for “[t]he government’s consent to suit under the Tucker Act does not extend to every contract.” Id. (alteration in original) (quoting Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed.Cir.2008)). The central inquiry is still whether the particular contract in question would give rise to monetary damages. See Tallacus v. United States, 99 Fed.Cl. 235, 238 (2011) (finding no jurisdiction where “the [government's breach of the settlement agreement [did] not create a right to recovery of money damages”).
Looking to the substance of the complaint, Mr. Johnson is not seeking “actual, presently due money damages from the United States.” Todd, 386 F.3d at 1093 (quoting Testan, 424 U.S. at 398, 96 S.Ct. 948). Although he alleges a medley of contractual breaches by the Department of Education, Mr. Johnson never suggests that he has sustained any injury that would require the government to pay him damages. Indeed, his sole grievance is that the government has illegally increased his preexisting debt. Whether or not this is so, Mr. Johnson will not have a cause for monetary damages until he actually pays off some part of that allegedly improper debt. Marathon Oil Co. v. United States, 16 Cl.Ct. 332, 337 (1989) (“[T]o the extent [plaintiffs] claims seek consideration by the court of some portion of the money requested by [the agency] that has not been paid by [plaintiff,] they seek a declaratory judgment.”). Currently, even if Mr. Johnson were to prove that a portion of his debt is unjustified, he would still owe a substantial outstanding balance to the Department of Education. Mr. Johnson consequently has no grounds to demand a refund of payments already made and thus no claim for monetary damages. See Valentino v. United States Dep’t of Educ., No. 09cv0006 JM(LSP), 2009 WL 2985686, at *3 (S.D.Cal. Sept. 16, 2009) (finding plaintiff failed to state a claim for damages where “the record demonstrates that [pjlaintiff still owes substantial amounts on the loans and that the treasury will be the net beneficiary upon receipt of outstanding principal and interest payments”).
The most Mr. Johnson can hope to achieve in this action is to obtain a discharge of the allegedly improper portion of his debt. And indeed, he requests such relief in his complaint. Compl. Prayer for Relief ¶ a (asking the court to “[e]nter a declaratory judgment that ... the [defendants are required to discharge the [p]laintiffs obligation to repay [a] portion of the disputed Direct Loan”). However, this remedy is beyond the court’s jurisdiction. The Federal Circuit has unambiguously held that cancellation of debt does not constitute monetary damages. See Gonzales & Gonzales Bonds, 490 F.3d 940. In Gonzales & Gonzales Bonds, the plaintiff purportedly sought “monetary damages, in the form of cancellation of debt” represented by bonds held by a federal agency. Id. at 942 (emphasis omitted). The court found that, notwithstanding the language of the complaint, the plaintiff was actually seeking “either specific performance of [the agency’s] *96contractual obligations ... to cancel the bonds, or declaratory and injunctive relief determining that [the agency] breached the bonds and precluding the government from collecting the debts owed thereunder.” Id. at 945. Because the plaintiff would only be “relieved of an[] obligation to pay the government,” its claim was not for monetary damages and so fell outside the purview of the Tucker Act. Id.; see also Valentino, 2009 WL 2985686, at *2-4 (applying Gonzales & Gonzales Bonds in the context of student loans and the Little Tucker Act). Like the plaintiff in Gonzales & Gonzales Bonds, Mr. Johnson can only obtain a cancellation of debt, not actual payment from the treasury. Consequently, this court lacks jurisdiction over counts two, five, and six of his complaint.
C. Plaintiff’s Motion to Transfer
Mr. Johnson has also filed a motion to transfer his suit to the United States District Court for the District of Columbia, which is opposed by the government. See Pl.’s Mot. to Transfer; Def.’s Resp. to Pl.’s Mot. to Transfer. In ruling on a motion to transfer, the court must weigh whether the case satisfies the three prerequisites of 28 U.S.C. § 1631. The first factor — “the transferor court lacks jurisdiction” — is readily satisfied in this instance, for the reasons discussed supra. Zoltek, 672 F.3d at 1314.
Mr. Johnson’s motion falters on the second requirement that “the action could have been brought in the transferee court at the time it was filed.” Zoltek, 672 F.3d at 1314. Plaintiff would not have been able to bring counts three and five in district court for the same reason it could not do so in this court. There is a six-year statute of limitations for non-tort actions brought against the United States in district court. 28 U.S.C. § 2401(a). Because plaintiffs claims regarding the government’s alleged payment to Sallie Mae accrued at least by 2004, the district court’s statute of limitations expired well before December 2011, when Mr. Johnson filed his case here. Similarly, he could not have brought his tort claim in district court at that time. The statute of limitations for tort claims is just two years. 28 U.S.C. § 2401(b); see, e.g., Auger v. United States, 80 Fed.Cl. 422, 422 (2008).
Mr. Johnson’s remaining claims also fail to satisfy the third criterion, i.e., that the “transfer [be] in the interest of justice.” Zoltek, 672 F.3d at 1314. In considering this last prerequisite, courts emphasize that a plaintiff should have the opportunity to have his nonfrivolous claims heard on the merits. Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed.Cir.1987). In this respect, courts have found a “compelling reason for transfer” where the plaintiff “will be time-barred if his case is dismissed and thus has to be filed anew in the right court.” Texas Peanut Farmers v. United States, 409 F.3d 1370, 1374 (Fed.Cir.2005) (quoting Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999)). Here, however, the interests of justice will not be furthered by transferring Mr. Johnson’s claims to the United States District Court for the District of Columbia. Mr. Johnson has already brought two actions there in an effort to obtain a discharge of his student loans. See Johnson v. United States Dep’t of Educ., 580 F.Supp.2d 154; Johnson v. Duncan, 746 F.Supp.2d 163. He has had his day in court twice over. Consequently, the court finds that Mr. Johnson has not satisfied the prerequisites for transfer.
CONCLUSION
For the reasons stated, the government’s motion to dismiss for lack of subject matter jurisdiction is GRANTED, and plaintiffs motion to transfer is DENIED. The clerk shall enter judgment accordingly.
It is so ORDERED.
. The discrepancy between the amount of the pertinent loan and the refund is not explained by the pleadings.
. The regulation provides in pertinent part:
(2) Unpaid refunds in open school situations,
(i) In the case of a school that is open, the Secretary discharges a former or current borrower’s (and any endorser’s) obligation to repay that portion of a Direct Loan equal to the refund that should have been made by the school under applicable law and regulations, including this section, if—
(A) The borrower (or the student on whose behalf a parent borrowed) is not attending the school that owes the refund;
(B) The borrower has been unable to resolve the unpaid refund with the school; and
ic) The Secretary is unable to resolve the unpaid refund with the school within 120 days from the date the borrower submits a complete application in accordance with paragraph (c)(1) of this section regarding the unpaid refund. Any accrued interest and other charges associated with the unpaid refund are also discharged.
(ii) For the purpose of paragraph (a)(2)(i)(C) of this section, within 60 days of the date notified by the Secretary, the school must submit to the Secretary documentation demonstrating that the refund was made by the school or that the refund was not required to be made by the school.
34 C.F.R. § 685.216(a)(2).
. A little over two weeks later, on May 13, 2004, Sallie Mae represented to Mr. Johnson that his debt totaled $20,956.80. Compl. Ex. 6. This discrepancy is not fully explained in the pleadings or exhibits. In the fifteen days between these two calculations, Mr. Johnson's debt to Sallie Mae apparently increased by $291.10. The records suggest, however, that $58.51 of this amount was attributable to additional interest, and the remaining $232.59 was due to additional collection costs. Compare Compl. Ex. 6, with Compl. Ex. 9.
. Mr. Johnson has appeared pro se, and the submissions of such litigants are traditionally held to "less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam)). "This latitude, however, does not relieve a pro se plaintiff from meeting jurisdictional requirements." Bernard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (per curiam); see also Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995).
. As noted previously, an exhibit appended to the complaint indicates that Sallie Mae received no *93payments from the Department in connection with the consolidation. See supra, p. 89 (quoting Compl. Ex. 10, at 1).
. In this respect, the government contends that Mr. Johnson’s prayer for relief asks only for declaratory judgment. Def.’s Mot. to Dismiss at 10. More accurately, however, Mr. Johnson’s prayer for relief mixes requests for equitable and monetary relief. E.g., Compl. Prayer for Relief ¶ b (asking the court to ”[e]nter a declaratory judgment that the [djefendants breached their contractual obligations ... and enter judgment in favor of the [p]laintiff for all amounts owed to the [pjlaintiff as a result of the breach”); see also Compl. ¶¶ 28, 35, 49, 61, 89, 93. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218253/ | OPINION and ORDER
HEWITT, Chief Judge.
Before the court is plaintiffs Complaint (Complaint or Compl.), Docket Number (Dkt. No.) 1, filed May 9, 2012.1 Pro se plaintiff Heather Marie Toohey alleges that “[u]nder the Federal Tort Claims Act (FTCA) statute 28 U.S.C. [§§ ] 1346(b), 2671-2680, the United States was negligent [in] spraying improperly stored Malathion during business hours from a helicopter in a commercial area over my former place of employment in Tampa, FL.” Compl. ¶ 1. Plaintiff claims that as a result of the government’s negligence, see id., she has “had chronic infections since 1997 and more than one thousand skin sears and infected skin lesions, documented high blood pressure and hypertension, anxiety and chronic fatigue,” id. ¶4. Plaintiff seeks “a judgment against the United States ... for one million dollars to cover medical expenses, lost wages and loans.” Id. ¶ 6.
For the following reasons, the court DISMISSES, sua sponte, plaintiffs Complaint pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) for lack of subject matter jurisdiction and transfers this action to the United States District Court for the Western District of Texas (Western District of Texas).
*98I. Legal Standards
A. Dismissal for Lack of Subject Matter Jurisdiction
“Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004); see also Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.2004) (“Subject matter jurisdiction is an inquiry that this court must raise sua sponte, even where, as here, neither party has raised this issue.”). “In deciding whether there is subject-matter jurisdiction, ‘the allegations stated in the complaint are taken as true and jurisdiction is decided on the face of the pleadings.’ ” Folden, 379 F.3d at 1354 (quoting Shearin v. United States, 992 F.2d 1195, 1195-96 (Fed.Cir.1993)). Although complaints filed by pro se plaintiffs are generally held to “less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), pro se plaintiffs nevertheless must meet jurisdictional requirements, Bernard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (unpublished); see also Kelley v. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed.Cir.1987) (“[A] court may not similarly take a liberal view of [a] jurisdictional requirement and set a different rule for pro se litigants only.”). If the court determines that it does not have subject matter jurisdiction, it must dismiss the claim. RCFC 12(h)(3).
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 unliq-uidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2006). 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, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Accordingly, the Tucker Act provides the court with jurisdiction over suits “against the United States.” 28 U.S.C. § 1491(a)(1). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in order for the case to proceed. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008).
B. Transfer for Lack of Subject Matter Jurisdiction
Under 28 U.S.C. § 1631, a federal court may transfer a case to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the case 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. 28 U.S.C. § 1631; see also Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed.Cir.1988) (citing Town of N. Bonneville, Wash. v. U.S. District Court, 732 F.2d 747, 750 (9th Cir.1984)).
II. Discussion
For the following reasons, plaintiffs Complaint is dismissed for lack of subject matter jurisdiction pursuant to RCFC 12(h)(3) and transferred to the Western District of Texas.
A. The Court Lacks Jurisdiction Over Tort Claims
Plaintiff states that she is entitled to relief under the FTCA, arguing that “the United States was negligent [in] spraying improperly stored Malathion during business hours from a helicopter in a commercial area over my former place of employment in Tampa, FL.” Compl. ¶ 1.
The United States District Courts have exclusive jurisdiction to hear claims brought against the United States under the FTCA 28 U.S.C. § 1346(b)(1); Treece v. United States, 96 Fed.Cl. 226, 232 n. 8 (2010). Therefore, to the extent that plaintiff states a claim under the Federal Tort Claims Act, that claim is dismissed for lack of subject matter jurisdiction.
*99Insofar as plaintiffs Complaint alleges that civil wrongs have been committed against her by the United States outside the context of the FTCA, these tort claims are also beyond the jurisdiction of the court. The Tucker Act specifically excludes tort claims from the court’s jurisdiction. 28 U.S.C. § 1491(a)(1) (specifying that the United States Court of Federal Claims shall have jurisdiction over certain claims against the United States for “liquidated or unliquidated damages in eases not sounding in tort”); see also Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997).
B. Transfer of Plaintiffs Claims Is Appropriate
Although not requested to do so by plaintiff, the court considers sua sponte whether “it is in the interest of justice” to transfer plaintiffs Complaint to another court under 28 U.S.C. § 1631. See Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1374-75 (Fed.Cir.2005) (stating that the United States Court of Federal Claims should have considered whether transfer was appropriate once the court determined that it lacked jurisdiction and noting that the court may “order[ ] transfer without being asked to do so by either party”). The court considers transfer in this ease because plaintiff is proceeding pro se, see Skillo v. United States, 68 Fed.Cl. 734, 743 n. 15 (2005) (“Although plaintiffs have not requested a transfer, because they are proceeding pro se, the court addresses the possibility.”), and because the transfer statute language “persuasively indicates that transfer, rather than dismissal, is the option of choice,” Britell v. United States, 318 F.3d 70, 73 (1st Cir.2003).
Because transfer is the option of choice, id., and because plaintiffs ComplainU-while informally presented—appears to contain claims cognizable in federal district court, the Clerk of Court shall TRANSFER this action to the United States District Court for the Western District of Texas.
III. Conclusion
For the foregoing reasons, the court finds that it lacks jurisdiction over plaintiffs claims and TRANSFERS this action to the Western District of Texas. No costs.
IT IS SO ORDERED.
. Plaintiff also submitted an Application to Proceed In Forma Pauperis (IFP Application), Docket Number (Dkt. No.) 2, filed May 9, 2012. For the limited purpose of addressing the court’s jurisdiction, plaintiff’s IFP Application is GRANTED. Accordingly, the Office of the Clerk of Court is directed to file the Complaint with no filing fee. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218255/ | MEMORANDUM OPINION AND ORDER
MILLER, Judge.
This case is before the court on defendant’s motion to dismiss pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction. The issue for decision is whether plaintiffs Anthony J. and Maria T. Nasharr1 have met the required jurisdictional elements to proceed before the Court of Federal Claims on their request for an abatement of the penalty assessed for their failure to pay income taxes for the 2003 tax year. Argument is deemed unnecessary.
FACTS
Athough this case specifically concerns the circumstances surrounding the 2003 tax year, the developed factual record indicates that the plaintiffs’2 tardiness problems with the Internal Revenue Service (“IRS”) actually began during the 1996 tax year and continued through the 1999 tax year. For the years 1996 through 1999, plaintiffs failed to timely file or pay their income taxes and were subsequently assessed penalties for late filing and late payment and the interest that accrued on those deficits. See Def.’s Br. filed Apr. 2, 2012, Ex. 11, at 61-68. Beginning in February 2003, Mi’. Nasharr began sending payments to the IRS.3 See id. Ex. 10, at 60. On February 20, 2003, Mr. Nasharr sent the IRS a check for $30,000.00. Id. On March 24, 2003, Mr. Nasharr sent a check for $20,000.00 to the IRS “to apply to my debt.” Id. Ex. 10, at 57. Again on April 24, 2003, Mr. Nasharr sent the IRS a check for $105,000.00 “for application to my debt.” Id. Ex. 10, at 58. Mr. Nasharr sent a final check in the amount of $72,000.00 on September 2, 2003.4 Because plaintiffs failed to designate how these funds should be applied to their outstanding balance, the IRS credited their tax account in chronological order, beginning with the 1996 tax year balance. See id. Ex. 11, at 61-68. It appears from the Account Transcripts that with the final payment in September, plaintiffs had resolved their outstanding balance for the 1996 through 1999 tax years. Id. Ex. 11, at 68.
At the same time in 2003 when Mr. Nash-arr was making these voluntary payments on his outstanding balance, he was experiencing professional difficulties. In 2003 Mr. Nash-arr, an attorney, was a name-partner in the law firm Forran Nasharr & O’Toole, LLC, of Chicago, Illinois. See id. at 2; id. Ex. 1, at 13. However, in 2004 Mr. Nasharr was “ousted from the partnership he helped create by his two former partners.” Compl. filed Dec. 19, 2011, ¶ 5. Due to the contentious nature of the firm’s dissolution, Compl. ¶¶ 5-6, Mr. Nasharr did not receive his Schedule K-l, Partner’s Share of Income, Credits, Deductions, etc., for the 2003 tax year until October 5, 2004 — well past the deadline to timely file a return. See Def.’s Br. filed Apr. 2, 2012, Ex. 3, at 19, 22. The Schedule K-l reflects that Mr. Nasharr earned $171,832.00 in income in 2003. Despite receiving the Schedule K-l in October *1162004, plaintiffs took no immediate action to file a return for the 2003 tax year. Instead, on July 17, 2007, the IRS prepared a Substitute for Return, and on March 31, 2008, assessed the amount plaintiffs owed in taxes as $258,252.00. See id. Ex. 4, at 24; id. Ex. 5, at 33. To this amount, the IRS assessed late filing and failure to pay penalties and calculated the accrued interest on the outstanding balance. See id.
Plaintiffs filed their 2003 tax return on May 10, 2009, and reported owing $197,643.00 in taxes to be offset by $19,634.00 in previous withholdings, resulting in a total tax balance of $178,009.00. See id. Ex. 6, at 42. In response, the IRS adjusted the penalties assessed and abated some of the original penalty amounts. See id. Ex. 4, at 25; id. Ex. 5, at' 34. Dissatisfied with only this pai’tial reduction, on May 27, 2009, plaintiffs submitted Forms 843, Claim for Refund and Request for Abatement, and requested that the IRS abate both the failure to file and failure to pay penalties for reasonable cause. See id. Ex 1. The IRS denied relief on December 18, 2009. Id. Ex. 7. In the letter sent to plaintiffs, the IRS provided information on the appellate options available to taxpayers in plaintiffs’ situation. Id. They may either appeal the decision directly to the Office of Appeals or,
[i]f you don’t appeal, you may file a claim for refund after you pay the penalty. If you want to take your case to court immediately, you should request in writing that your claim for refund be immediately rejected. Then you will be issued a notice of disallowance. You have two years from the date of the notice of disallowance to bring suit....
Id. Ex. 7, at 45.
Plaintiffs elected to appeal the decision, but their appeal similarly was denied on November 3, 2010. Id. Ex. 8. In the letter sent to plaintiffs explaining the Appeals Tax Specialist’s decision, plaintiffs were again advised, as follows:
Since your representative has stated that he does not agree with my determination, your next level of appeal would be to file a formal refund suit with either the United States District Court or the United States Claims Court. After the penalty charges have been paid, you may file a claim for refund on Form 843.... Include a written statement that your claim for refund be immediately disallowed. You will then be issued a notice of claim disal-lowance.
You will have two years from the date of the notice of disallowance to bring suit in the appropriate [court].
Id. Ex. 8, at 49. In December 2010, plaintiffs next chose to file suit in the United States Tax Court again seeking an abatement of the penalties that had been levied for their delinquent filing and failure to pay income taxes in 2003. Id. Ex. 9. On April 22, 2011, the Tax Court dismissed plaintiffs’ petition for lack of jurisdiction to review determinations with respect to the abatement of penalties. Id. Ex. 9, at 55-56.
The record indicates that plaintiffs have not made any subsequent payments to the IRS pertaining to their 2003 outstanding balance. Nonetheless, on December 19, 2011, plaintiffs filed the present action for “abatement of duplicate penalties for failure to pay of $53,689.00 plus associated interest accumulated.”5 Compl. at 1. Plaintiffs allege entitlement to abatement relief because the following grounds constitute reasonable cause for their delay in filing and paying their income taxes: (1) plaintiffs erred in failing to specify that the payments submitted in 2003 were to be applied to their 2003 income tax liability, an amount sufficient to cover the tax assessed, Compl. ¶ 3; (2) plaintiffs reasonably believed all tax liabilities were fully paid because of the payments submitted in 2003, id. ¶ 5; (3) Mr. Nasharr was unable to obtain the necessary records in time to timely file his 2003 return, id.; and (4) the “stress of [Mr. Nasharr’s] law firm breakup” was a causal factor, id. ¶ 7.
*117DISCUSSION
I. Standards
1. Subject matter jurisdiction pursuant to RCFC 12(b)(1)
Documents filed pro se are “to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citation omitted) (internal quotation marks omitted); see also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); Ruderer v. United States, 412 F.2d 1285, 1292 (Ct.Cl.1969) (“[W]e have strained our proper role in adversary proceedings to the limit, searching this lengthy record to see if plaintiff has a cause of action somewhere displayed.”). Nevertheless, while “[t]he fact that [a plaintiff] acted pro se in the drafting of his complaint may explain its ambiguities, ... it does not excuse its failures, if such there be.” Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995). Although pro se plaintiffs are given some leniency in presenting their case, their pro se status does not immunize them from pleading facts upon which a valid claim can rest. See, e.g., Ledford v. United States, 297 F.3d 1378, 1382 (Fed.Cir.2002) (affirming dismissal of pro se plaintiffs complaint which sought, inter alia, a tax refund). Additionally, the filings of pro se plaintiffs receive less leniency vis-a-vis jurisdictional requirements. See Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed.Cir.1987) (“We agree that leniency with respect to mere formalities should be extended to a pro se party, .... [but] a court may not similarly take a liberal view of [a] jurisdictional requirement and set a different rule for pro se litigants only.”); see also Ledford, 297 F.3d at 1382 (affirming dismissal of pro se plaintiffs complaint seeking unpaid tax refund).
Defendant levies the objection that plaintiffs’ asserted claims are outside the court’s jurisdiction. Jurisdiction must be established before the court may proceed to the merits of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Courts are presumed to lack subject matter jurisdiction unless it is affirmatively indicated by the record; therefore, it is a plaintiffs responsibility to allege facts sufficient to establish the court’s subject matter jurisdiction. Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991); DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed.Cir.2006) (“[I]t is settled that a party invoking federal court jurisdiction must, in the initial pleading, allege sufficient facts to establish the court’s jurisdiction.”). Once the court’s subject matter jurisdiction is put into question, it is “incumbent upon [the plaintiff] to come forward with evidence establishing the court’s jurisdiction.... [The plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citation omitted); accord M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed.Cir.2010).
If the facts purporting to establish jurisdiction are disputed, the court may consider evidence outside of the pleadings to resolve the dispute. See Rocovich v. United States, 933 F.2d 991, 994 (Fed.Cir.1991) (applying rule in tax refund ease). “[I]f a motion to dismiss for lack of subject matter jurisdiction ... challenges the truth of the jurisdictional facts alleged in the complaint, the ... court may consider relevant evidence in order to resolve the factual dispute.” Reynolds, 846 F.2d at 747 (citation omitted); accord Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999). However, when a federal court hears a jurisdictional challenge, “its task is necessarily a limited one.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id.
II. The fall payment rule
This court’s jurisdiction is established by 28 U.S.C. § 1491 (2006), which provides that *118“[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department_” 28 U.S.C. § 1491(a)(1). In tax cases, this court often looks to 28 U.S.C. § 1346(a)(1) (2006), for more specific guidance on the scope of that jurisdiction. Section 1346(a)(1) provides, as follows:
(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws_
28 U.S.C. § 1346(a)(1); see Shore v. United States, 9 F.3d 1524, 1525 (Fed.Cir.1993). From this statutory direction, defendant argues that this court lacks jurisdiction to adjudicate plaintiffs’ claim because this court’s jurisdiction is limited to those suits in which the taxpayer has paid fully both the tax liability at issue and the penalty prior to filing suit. Def.’s Br. filed Apr. 2, 2012, at 7; Def.’s Br. filed May 4, 2012, at 3.
Known as the “full payment rule,” in Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on reh’g, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), the United States Supreme Court stated that “§ 1346(a)(1), correctly construed, requires full payment of the assessment before an income tax refund suit can be maintained.” 362 U.S. at 177, 80 S.Ct. 630. The United States Court of Appeals for the Federal Circuit interpreted Flora in Shore to determine whether penalties also must be paid in full prior to filing in court. The Federal Circuit concluded that “if the taxpayers assert a claim over assessed interest or penalties on grounds not fully determined by the claim for recovery of principal [they must] prepay such interest and penalties as well as the assessed tax principal.” Shore, 9 F.3d at 1527-28.
This ease is unusual in that plaintiffs are not making any refund claim on the underlying tax; plaintiffs are challenging only the penalty levied for their failure to pay. See Pis.’ Br. filed Apr. 23, 2012, ¶4. Defendant points out that, in fact, plaintiffs’ penalty claim would not be fully determined by their tax refund claim if plaintiffs had made a tax refund claim. Def.’s Br. filed Apr. 2, 2012, at 7-8. However, because plaintiffs still have an outstanding balance of $270,494.20, of which $168,730.22 is owed for penalties and interest, plaintiffs have not satisfied the full payment rule. See Def.’s Br. filed Apr. 2, 2012, at 9. Plaintiffs appear to counter this position by arguing that they have made sufficient payments towards their 2003 tax liability to cover the amount of accumulated penalty that they are challenging. See Pis.’ Br. filed Apr. 23, 2012, ¶ 2 (“We assert that an amount exceeding the requested penalty has indeed been voluntarily paid.”). This appears to be an extrapolation of the basic principle embraced in Flora that a taxpayer must have first paid the amount that he subsequently challenges in court. The upshot of plaintiffs’ contentions seems to be that, because they are only challenging the failure to file penalty, that is the only amount that must have been paid prior to filing suit.
Despite the unique posture of the case, plaintiffs have failed to satisfy the jurisdictional requirement of prepayment prior to filing suit. First, although plaintiffs argue to the contrary, it does not even appear that they have paid the full amount of the failure to pay penalty that they are challenging. As noted by defendant, plaintiffs have submitted payments totaling $95,879.02 toward their 2003 tax liability. See Def.’s Br. filed May 4, 2012, at 2; Def.’s Br. filed Apr. 2, 2012, Ex. 4; id. Ex. 5. While this amount may have been sufficient to cover the failure to pay penalty, assessed at $42,737.50, it does not appear that plaintiffs designated that any of their subsequent payments be allocated to paying the failure to pay penalty. As such, defendant correctly notes that it was within the discretion of the IRS to distribute the payments “in order of priority that the Ser*119vice determines will serve its best interest” and the IRS accordingly applied those payments to the underlying tax balance rather than the penalty. See Rev. Proe. 2002-26, § 3.02, 2002-15 I.R.B. 746 (stating that if “the taxpayer does not provide specific written directions as to the application of payment, the Service will apply the payment to periods in the order of priority that the Service determines will serve its best interest” which, it then explains, will be in the order of tax then penalty then interest). Therefore, plaintiffs have not established that they have fully paid the failure to pay penalty.
Second, although plaintiffs advocate a conceptually plausible interpretation of Flora, the practical effect of their position would run counter to the full payment rule. Assuming that plaintiffs were correct that a taxpayer could pay only the amount of a penalty and then subsequently challenge only the penalty in court, then, were the taxpayer to succeed, the fact that an unpaid tax balance still existed would mean that the penalty would be refunded only up until the time of the judgment. Provided that the plaintiff did not pay off the entire balance of the outstanding tax liability, penalties would again begin accruing the day after judgment entered. The effect of such litigation gymnastics would be only to delay and obstruct the application of penalties to a delinquent taxpayer — a tactical maneuver not contemplated by applicable law. In order to gain access to the courts, a taxpayer first must pay the amount assessed by the IRS before he is allowed to challenge the validity of the amount. This procedure has been implemented because it is the one most likely to ensure that the IRS collects the revenue that it is owed. Similarly, those taxpayers who are delinquent in filing and paying their taxes should be penalized. Were this court to adopt plaintiffs’ proposed scheme, however, it would be possible for litigation as to the validity of the underlying tax to then be brought in two steps. First, a plaintiff would pay and challenge the penalty while “conceding” the validity of the underlying tax. If successful, the hurdle for plaintiff under the full payment rule would be lowered, and the same money that was paid to challenge the penalty could then be substituted to pay for the tax. This would result in obstructionist litigation that would deprive the public fisc of the entire sum initially assessed and potentially ease the burden assumed by those taxpayers who chose not to file and pay their taxes on time. Neither of these results is desirable. Flora and Shore command that plaintiffs must pay both the full amount of the tax owed, as well as the amount of the penalty that they separately challenge, in order to establish jurisdiction. Because plaintiffs still have an outstanding tax liability of $270,494.20 — inclusive of a failure to file penalty, a failure to pay penalty, and the resulting interest — plaintiffs have not fulfilled the mandate of the full payment rule.
III. The requirement that plaintiffs must first file a claim for refund, with the IRS
Defendant also states that plaintiffs have not filed a claim for refund with the IRS prior to filing suit in this court. See Def.’s Br. filed Apr. 2, 2012, at 9-10; Def.’s Br. filed May 4, 2012, at 4. This court’s jurisdiction in tax refund cases is limited by 26 U.S.C. § 7422(a) (2006), which provides, as follows:
No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.
26 U.S.C. § 7422(a). It is incumbent upon a taxpayer to demonstrate that this claim for refund has been filed because, as the Federal Circuit has noted, “[Wlhether sovereign immunity has been waived and the Court of Federal Claims has jurisdiction over ... refund claims depends on whether the taxpayers’ submissions to the IRS constitute a claim for refund.” Waltner v. United States, 679 F.3d 1329, 1333 (Fed.Cir.2012).
*120Plaintiffs have not demonstrated that they filed a claim for a refund of the failure to pay penalty that they now challenge. The record indicates that in May 2009, plaintiffs filed a Form 843 seeking an abatement of the penalties. See Def.’s Br. filed Apr. 2, 2012, Ex. 1. A fundamental difference exists between an abatement and a refund, and it has been established that a Form 843 submitted in pursuit of an abatement does not constitute a claim for refund. See Ertle v. United States, 93 F.Supp. 619, 620 (Ct.Cl.1950). Therefore, the Court of Federal Claims also lacks jurisdiction on this ground.
CONCLUSION
Accordingly, based on the foregoing, defendant’s motion to dismiss for lack of subject matter jurisdiction is granted, and the Clerk of the Court shall enter judgment dismissing the complaint without prejudice.
IT IS SO ORDERED.
No costs.
. The allegations of the complaint primarily concern Mr. Nasharr.
. Defendant notes that for the 1996 through 1999 tax years, plaintiffs filed either as "Single” or "Married Filing Separate,” but for the 2003 tax year filed "Married Filing Jointly.” Def.’s Br. filed Apr. 2, 2012, at 4 n. 4. For simplicity’s sake, the court will continue to refer jointly to plaintiffs, but notes that the Nasharrs' problems with the Internal Revenue Service ("IRS”) prior to 2003 seem to be the result of Mr. Nasharr's actions alone.
. The complaint also alleges that Mr. Nasharr designated $19,634.00 in withholding in 2003 to be applied to his outstanding tax balance, but the court has seen no evidence of this in the documentation submitted. See Compl. filed Dec. 19, 2011, ¶ 3.
. The record clearly reflects that Mr. Nasharr submitted four payments to the IRS in 2003. It is not at all clear why plaintiffs aver that Mr. Nasharr "sent voluntary payments of $197,000.00” when it appears as though he actually submitted $227,000.00 in payments. See Compl. ¶ 3.
. As identified by defendant, although plaintiffs specifically request only an abatement of the failure to pay penalty, plaintiffs make references throughout the complaint to both the failure to file and failure to pay penalties. Plaintiffs stated in their response brief that they are, in fact, "seeking only relief from failure to pay to avoid double penalties.” Pis.' Br. filed Apr. 23, 2012, ¶ 4. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218256/ | OPINION AND ORDER
LETTOW, Judge.
This is the latest chapter in the longstanding tax saga involving American Agri-Corp, Inc. (“AMCOR”). In the 1980s, plaintiffs Lawrence R. and Cecil McCann, and James H. and Arbelia Epps, invested in various tax shelter partnerships sponsored by AMCOR. In Final Partnership Administrative Adjustments (“FPAAs”) of the returns of AMCOR’s partnerships, the Internal Revenue Service (“IRS”) disallowed certain deductions related to those partnerships, and the resultant underpayments of taxes were resolved in stipulated decisions entered by the United States Tax Court and through various settlements. Akin to other AMCOR participants, the McCanns and Eppses now seek refunds of the taxes, interest, and penalty interest paid to resolve those underpayments. The government has moved to dismiss the McCanns’ and Eppses’ amended complaint for lack of jurisdiction, arguing that plaintiffs’ claims could only have been heard in a “partnership-level” tax proceeding, while the present case is a “partner-level” tax proceeding.
BACKGROUND
A brief recitation of background facts suffices because other opinions have described in detail the AMCOR partnerships and the litigation stemming from them. See, e.g., Prati v. United States, 603 F.3d 1301, 1302-04 (Fed.Cir.2010); Keener v. United States, 551 F.3d 1358, 1359-60 (Fed.Cir.2009); Kettle v. United States, 104 Fed.Cl. 699, 702-04 (2012). The McCanns and Eppses invested in several AMCOR partnerships in the 1980s. Mr. McCann was a limited partner in two entities, Emperor Seedless-85 and Agri-Cal Venture Associates. Am. Compl. ¶¶ 7, 20.1 Mr. Epps was a limited partner in two other entities, Travertine Flame Associates and Canyon Desert Vineyards. Am. Compl. ¶¶34, 46. In 1990 and 1991, the IRS sent FPAAs disallowing the deductions attributable to the AMCOR partnerships and demanding that the subscribing partners pay the resulting deficiencies. Litigation in the Tax Court ensued, and the disputes were resolved in two ways: some partners, like the Eppses, settled directly with the IRS via Forms 870-P(AD). Am. Compl. ¶¶37, 49; see also, e.g., Pis.’ Resp. to Def.’s Mot. to Dismiss (“Pis.’ Opp’n”) Ex. 21 (Eppses’ Form 870-P(AD) regarding Canyon Desert Vineyards, executed Mar. 6, 1999). Other plaintiffs, like the McCanns, agreed to be bound *122by stipulated decisions entered by the Tax Court. Am. Compl. ¶¶ 10, 23; see, e.g., Emperor Seedless-85 v. Commissioner, No. 15039-91 (T.C. July 19, 2001) (attached to Pis.’ Opp’n as Ex. 17).
Following these settlements and stipulated decisions, AMCOR participants, including the McCanns and Eppses, paid the tax deficiencies and then filed numerous actions for refund in this court between 2001 and the present. The taxpayers in each case have contended that the earlier settlements and stipulations were invalid because the predicate FPAAs were issued too late, after the statute of limitations had expired. The taxpayers have also contended that they did not owe the IRS interest at the higher, penalty rate imposed under former 26 U.S.C. (“I.R.C.”) § 6621(c) (repealed 1989). The bulk of the eases, including the two instant actions, were stayed while several representative eases went forward. See McCann, No. 06-216T, Order of Aug. 23, 2006, ECF No. 7; Epps, No. 06-615T, Order of Dee. 6, 2006, ECF No. 6. That process culminated in the Federal Circuit’s decisions in Keener v. United States, 551 F.3d 1358, and Prati v. United States, 603 F.3d 1301. In those cases, the court rejected both the taxpayers’ statute-of-limitations claims and their penalty-interest claims. The court held that both sets of claims implicated “partnership-level” items, which could not be adjudicated in the “partner-level” suits brought in this court. See Keener, 551 F.3d at 1366; Prati, 603 F.3d at 1307, 1309.
Following the conclusion of the Keener and Prati appeals, this court on May 5, 2011 lifted the stays that had been entered and consolidated the McCanns’ and Eppses’ actions. Plaintiffs argue here, as other AM-COR plaintiffs have contended in substantially identical fashion, that their claims are distinguishable from those dismissed in Keener and Prati. Compare Pis.’ Opp’n at 1-2, with, e.g., Dahlberg v. United States, 104 Fed.Cl. 214, 218-20 (2012). Thus far, those arguments have been unavailing and the underlying claims have been dismissed for lack of jurisdiction. See Kettle, 104 Fed.Cl. at 703-04; Dahlberg, 104 Fed.Cl. at 221-23.2
JURISDICTION
A taxpayer seeking to invoke the court’s jurisdiction must establish it by a preponderance of the evidence. Keener, 551 F.3d at 1361. The Tucker Act grants this court jurisdiction over claims for federal tax refunds. 28 U.S.C. § 1491(a)(1); see Ledford v. United States, 297 F.3d 1378, 1382 (Fed.Cir.2002); Dominion Res., Inc. v. United States, 97 Fed.Cl. 239, 246 (2011). However, the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”), Pub.L. No. 97-248, 96 Stat. 324 (codified in various sections of the I.R.C., including I.R.C. §§ 6221-6232), limits this court’s tax refund jurisdiction when a case implicates partnerships. Specifically, TEFRA mandates “a single unified procedure for determining the tax treatment of all partnership items at the partnership level, rather than separately at the partner level.” Keener, 551 F.3d at 1361 (quoting In re Crowell, 305 F.3d 474, 478 (6th Cir.2002)); see I.R.C. § 6221. Thus, no partner-level “action may be brought for a refund attributable to partnership items,” I.R.C. § 7422(h), because such claims should be resolved during the partnership-level proceeding. Because the suits brought by the McCanns and Eppses are partner-level proceedings, jurisdiction over their claims turns on whether the McCanns and Eppses request “a refund attributable to partnership items,” i.e., whether they “are due to, caused by, or generated by a partnership item.” Keener, 551 F.3d at 1365 (internal quotation marks omitted). If so, then the claims are barred by I.R.C. § 7422(h).
A “partnership item” is defined by TEFRA as “any item required to be taken into account for the partnership’s taxable year ... to the extent regulations ... provide that ... such item is more appropriately determined at the partnership level than at *123the partner level.” I.R.C. § 6231(a)(3). A “Treasury regulation further defines a ‘partnership item’ to include ‘the legal and factual determinations that underlie the determination of the amount, timing, and characterization of items of income, credit, gain, loss, deduction, etc.’” Keener, 551 F.3d at 1362 (emphasis omitted) (quoting Treas. Reg. § 301.6231(a)(3)-l(b)). Meanwhile, a “non-partnership item” is “an item which is (or is treated as) not a partnership item.” I.R.C. § 6231(a)(4). Additionally, an “affected item” is an item with a partner-level component which “is affected by a partnership item.” I.R.C. § 6231(a)(5); see Duffie v. United States, 600 F.3d 362, 375 (5th Cir.2010); Field v. United States, 328 F.3d 58, 60 (2d Cir.2003); Zfass v. Commissioner, 118 F.3d 184, 192 (4th Cir.1997).
ANALYSIS
Plaintiffs present two claims. First, they contend that the IRS waited too long to adjust their tax liabilities because the original adjustments of taxes and interest made by the IRS in the 1980s occurred after the statute of limitations had expired as to them. Hence, plaintiffs argue, their payments in satisfaction of the resulting assessments constituted overpayments, which should be refunded. Second, plaintiffs contend that they were improperly assessed penalty interest on their taxes owed. Plaintiffs were assessed penalty interest at 120% of the normal statutory rate for “substantial underpayments] attributable to tax motivated transactions.” I.R.C. § 6621(c)(1) (repealed 1989). Plaintiffs argue that the IRS never in fact determined that their partnership transactions were tax motivated, so imposition of the heightened interest rate was improper.
A. The Statute of Limitations Claims
In Keener and Prati, the Federal Circuit dismissed AMCOR claims involving the same statute of limitations at issue in this case. I.R.C. § 6501 is the general statute of limitations for tax assessments against individuals. It requires the IRS to bring an assessment within three years from the time the individual files a tax return. Prati, 603 F.3d at 1306. I.R.C. § 6229, part of TEFRA, reiterates that time limit and allows it to be extended under certain circumstances. Id. at 1307. The taxpayers in Keener argued that the IRS had brought its assessments after the expiration of the time limit stated in I.R.C. § 6229, so the assessments were void and any resulting payments were refundable overpayments. The court held that the taxpayers’ claims, even if meritorious, were nonetheless barred by I.R.C. § 7422(h). The court reasoned that “the limitations claim raised by [tjaxpayers should not be litigated in a partner-level proceeding because it affects the partnership as a whole.” Keener, 551 F.3d at 1364 (citing Weiner v. United States, 389 F.3d 152, 156—57 (5th Cir.2004)). Undaunted, the taxpayers in Prati argued that the IRS had also transgressed the general statute of limitations found at I.R.C. § 6501, and that statute of limitations did not implicate a partnership item. The court disagreed. It explained:
In Keener, the court’s reasoning was directed to the statute of limitations defense as a general matter and was not limited ... to [Sjeetion 6229_ [T]he court’s reference to [Sjection 6229 was merely a shorthand way of referring to the taxpayers’ overall statute of limitations claim ....
Based on Keener, we hold that the statute of limitations issue is a partnership item and that the [taxpayers] were required to raise the limitations issue in the partnership-level proceeding prior to either entering settlement or stipulating to judgment in the Tax Court.
Prati, 603 F.3d at 1307 (emphasis added).
The McCanns and Eppses nonetheless contend that their statute of limitations claims fall outside Prati’s extensive ambit. They invoke I.R.C. § 6226(d)(1)(B), which excludes partners from partnership-level proceedings when “the period within which any tax attributable to [relevant] partnership items may be assessed against that partner [has] expired.” Based on this language, plaintiffs conclude that they are not bound to the earlier settlements and stipulations because TEFRA forbade their participation in those proceedings. See Pis.’ Opp’n at 32.
This reasoning was rejected by Prati itself: “As for the [taxpayers’] argument that *124they were barred from participating in a proceeding to decide whether the statute of limitations had run because the statute of limitations had already run, that argument is circular and has no merit.” 603 F.3d at 1307 n. 4. The Federal Circuit’s determination is conclusive for this court. See Garner v. United States, 85 Fed.Cl. 756, 759 (2009) (citing Crowley v. United States, 398 F.3d 1329, 1335 (Fed.Cir.2005)); see also Kettle, 104 Fed.Cl. at 704. Further, even if the McCanns and Eppses were not bound by the earlier proceedings, that fact would be irrelevant in this context. As made explicit in Prati, the statute of limitations issue is categorically a partnership item. Thus, any refund claim based on a violation of the statute of limitations is an action “for a refund attributable to [a] partnership item[],” I.R.C. § 7422(h), and barred.
B. The Penalty Interest Claims
1. Whether penalty interest is a partnership item.
Plaintiffs next contest the assessment of interest on their underpaid taxes at a higher, penalty rate. From 1984 to 1989, the tax code provided that “any substantial underpayment attributable to tax motivated transactions” would be assessed at 120% of the usual underpayment rate. I.R.C. § 6621(c)(1) (repealed 1989); see Keener, 551 F.3d at 1364 n. 5. Tax motivated transactions were defined to include, among other things, “any use of an accounting method ... which may result in a substantial distortion of income for any period” and “any sham or fraudulent transaction.” I.R.C. § 6621(c)(3)(A)(iv)-(v) (repealed 1989). When the IRS initially disallowed the AM-COR partners’ deductions via the FPAAs, it did so at least in part because “the partnerships’ activities constituted a series of sham transactions.” Keener, 551 F.3d at 1360; see Pis.’ Opp’n Ex. 2, at 36a; id. Ex. 3, at 41; id. Ex. 4, at 48; id. Ex. 6, at 64. The AMCOR partners who settled with the IRS using Forms 870-P(AD), like the Eppses, agreed that their settlements “may result in an additional tax liability ... plus interest as provided by law.” Keener, 551 F.3d at 1360; see Am. Compl. Ex. G, at 45; id. Ex. I, at 64. Similarly, the AMCOR partners who participated in the stipulated decisions in the Tax Court, like the McCanns, agreed that the IRS would “assess interest which has accrued ... under former I.R.C. § 6621(e).” Mot. for Entry of Decisions ¶ 20, Coachella Fruit Growers v. Commissioner, No. 012531-90 (T.C. granted July 19, 2001) (attached to Pis.’ Opp’n as Ex. 1, at 10).
Even so, plaintiffs contend that neither the IRS’ initial FPAAs, nor the Form 870-P(AD) settlements, nor the stipulated decisions, establish a foundation for assessing penalty-rate interest against them. Specifically, the McCanns argue that the Tax Court decisions to which they are bound never determined that their transactions were shams. Correla-tively, the Eppses argue that their FPAAs and Form 870-P(AD) settlements never determined that their transactions were shams. Without such a finding of sham, plaintiffs reason, there is no partnership-level basis for assessing the penalty, so their claims cannot be attributable to partnership items. Therefore, plaintiffs conclude, I.R.C. § 7422(h) does not bar this court from reviewing the penalty. See Pis.’ Opp’n at 9, 26-28.
The government responds by arguing that this entire line of argument is foreclosed by I.R.C. § 7422(h). Keener and Prati held that a dispute over whether a partnership’s transactions were shams is a dispute over “the nature of the partnership^] transactions and ... the nature of a partnership’s transactions is a partnership item” barred by I.R.C. § 7422(h). Keener, 551 F.3d at 1366; see Prati, 603 F.3d at 1308 (“[A] dispute over the proper characterization of the partnerships’ transactions ... is barred.”). The government interprets Keener and Prati to mean that any claim related to former Section 6621 penalty interest is inevitably a dispute over a partnership item and therefore cannot be heard in this court. See Def.’s Reply at 6-7.
The government’s interpretation is incorrect. In essence it asks the court to regard former Section 6621 as a talisman, the introduction of which forbids any exercise of juridical power. Such an understanding of former Section 6621 would forestall the court from ascertaining its jurisdiction in the first place. That is untenable, for “it is familiar *125law that a federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (citing United States v. Mine Workers, 330 U.S. 258, 291, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). See generally 13D Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure § 3536 (3d ed. 2012).
Keener and Prati do not hold otherwise. They dismissed claims for refunds of penalty interest under former Section 6621 because those claims particularly disputed the nature of partnership transactions, not because they invoked Section 6621 qua Section 6621. See Keener, 551 F.3d at 1366; Prati, 603 F.3d at 1308.3 In both cases, the dispute centered on whether the partnership-level proceedings had correctly determined that the partnership transactions were shams. Inquiry into the correctness of that determination, the Federal Circuit reasoned, would be tantamount to revisiting the earlier finding of sham. See Keener, 551 F.3d at 1365 (“Taxpayers’ refund claims are based on the assertion that the partnerships’ transactions were not shams. This characterization of a parti nership’s transaction is a partnership item.” (emphasis added)); Prati, 603 F.3d at 1308 (“[Taxpayers’] contention is disingenuous because ..., if accepted, [it] would invalidate the determination that thé partnerships’ transactions were tax motivated.”); cf. Dahlberg, 104 Fed.Cl. at 221 (“The Keener plaintiffs’ contention that their underpayments were not attributable to a tax motivated transaction, in fact, was an attempt to have them transactions not deemed shams.”). Notably, however, Keener and Prati did not state that all claims involving former Section 6621 necessarily would be attributable to partnership items. See Keener, 551 F.3d at 1366 & n. 7 (no bar when the transaction is “dependent on facts unique to a particular partner,” such as whether a partner’s underpayment was substantial (citing Prochorenko v. United States, 243 F.3d 1359, 1363 (Fed.Cir.2001))). Rather, they made the commonsense observation that a claim which would operate to overturn an earlier partnership-level finding is, of course, attributable to a partnership item.
Inherent in this reasoning was a determination by the Federal Circuit that the earlier proceeding had in fact made a finding of sham. As stated in Prati:
The Pratis also maintain that the settlements they entered were comprehensive and that those settlements did not include any determinations as to the nature or characterization of the partnerships’ transactions. To the extent they are disputing the finding that those transactions were tax motivated, that line of argument remains barred by [S]ection 7422(h).
603 F.3d at 1308 (emphasis added); see also id. at 1309 (“The Tax Court’s decision clearly equated lack of economic substance with ‘sham transaction.’ ”). The “finding” referred to here is the determination by the IRS, approved by the Tax Court and in partner-entered settlements, and accepted as conclusive by the Federal Circuit, that the partnerships were engaged in tax motivated transactions.
The Federal Circuit acknowledged that this scenario stands in contrast to the “potential situation where the IRS imposes penalty interest when no partnership-level determination has been made that the transactions were tax motivated.” Keener, 551 F.3d at 1367. Such a situation exists when there is no perceptible partnership-level determination on which to impose penalty interest on an individual partner based upon former Section 6621(c). In addition, the situation also exists when the IRS imposes penalty interest based on a partnership-level determination, but those determinations do not apply to a particular partner. As explained by the Fifth Circuit in a similar AMCOR case, “interest under [former] Section 6621(e)[ ] is an ‘affected item’ that has both partnership and nonpartnership components.... [A] partner-level challenge of the nonpartnership-item component of Section 6621(c) interest [includes] ... whether it was attributable to the *126transaction previously determined at the partnership level to be tax-motivated.” Duffie, 600 F.3d at 372, 380 (emphasis added). If no such determination is made as to a particular partner, then the penalty interest is not based on a partnership transaction involving that partner. Consequently, a claim brought by that partner would not be attributable to a partnership item (and barred by I.R.C. § 7422(h)), because no underlying partnership item would exist.4
As a result, the threshold inquiry in this court is not simply whether plaintiffs dispute penalty interest assessed under former Section 6621(c) in the abstract. Rather, the question is whether the imposition of such penalty interest is based on a finding, applicable to the challenging taxpayer, that the partnership-level transaction was. a tax-motivated transaction. If so, jurisdiction is barred by I.R.C. § 7422(h). If not, the matter may be adjudicated further.
2. Whether plaintiffs’ penalty interest claim is attributable to a partnership item.
In accord with these observations, plaintiffs argue that they do not owe interest under former Section 6621(e) because the IRS never determined that their particular transactions were shams. See I.R.C. § 6621(e)(3)(A)(v) (repealed 1989). For this argument to be successful, plaintiffs must distinguish Keener and Prati, both of which held that AMCOR taxpayers, including one involved in the same partnerships as plaintiffs,5 had indeed engaged in sham transactions.
The McCanns contend that they do not owe interest under former Section 6621(e) because the Tax Court decisions binding them did not determine that they had entered into sham transactions. The McCanns point to differences in the wording of their stipulated decisions and the stipulated decisions found wanting in Prati. The Tax Court stipulation at issue in Prati stated in relevant part, “the foregoing adjustments are attributable to the partnerships[’] reporting of transactions, as described at former I.R.C. § [ ]6621(c)(3)(A)(v), which lacked economic substance.” Pis.’ Opp’n at 15 (emphasis omitted) (quoting Travertine Flame Assocs., No. 15059-91, slip op. at 2 (T.C. July 19, 2001) (attached to Pis.’ Opp’n as Ex. 19, at 156)). The stipulations binding the McCanns stated, “the foregoing adjustments to partnership income and expense are attributable to transactions which lacked economic substance, as described in former I.R.C. § [ ]6621(c)(3)(A)(v).” Id. (emphasis omitted) (quoting, e.g., Emperor Seedless-85, No. 15039-91, slip op. at 2). To bolster their contention, the McCanns rely on evidence not before the Keener or Prati courts: the affidavit of Frederick H. Behrens, the AMCOR partner who apparently negotiated the stipulated decisions. Mr. Behrens states that, in the course of those negotiations, “[t]he IRS sought to have me concede the transactions were shams. I refused.” Pis.’ Opp’n at 16.
The McCanns’ attempt to distinguish their case is unconvincing. First, the submission of Mr. Behrens’ affidavit is unhelpful. The affidavit purports to present new facts as to the meaning of the earlier Tax Court decisions, but “[t]he interpretation of a court order involves a question of law,” not fact. Williams v. Principi, 310 F.3d 1374, 1377 (Fed.Cir.2002) (citing YBM Magnex, Inc. v. International Trade Comm’n, 145 F.3d 1317, 1320 (Fed.Cir.1998), overruled on other grounds by Johnson & Johnston Assocs. Inc. v. R.E. Serv. Co., 285 F.3d 1046 (Fed.Cir.2002) (en banc)); cf. Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1170 (Fed.Cir.2008) (“[It is] for the court, not the jury, to interpret this court’s prior opinion.”). Further, even if the court were to consider *127the Tax Court stipulations as contracts rather than as legal precedents, the affidavit still would be superfluous. Where the stipulations are “unambiguous, they must be given their plain and ordinary meaning, and the court may not resort to extrinsic evidence to interpret them.” McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed.Cir.1996) (internal quotation marks and citation omitted) (quoting Alaska Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed.Cir.1993)) (citing Interwest Constr. v. Brown, 29 F.3d 611, 615 (Fed.Cir.1994); Beta Sys., Inc. v. United States, 838 F.2d 1179, 1183 (Fed.Cir.1988)). In express terms, the stipulations “equated lack of economic substance with ‘sham transaction’ by specifically citing I.R.C. § 6621(c)(3)(A)(v).” Prat% 603 F.3d at 1309; see also Duffie, 600 F.3d at 373 (citing Nault v. United States, 517 F.3d 2, 5 (1st Cir.2008); Kimball v. Commissioner, 95 T.C.M. (CCH) 1306, 2008 WL 862339 (2008)). The only difference between the Prati stipulations and those before this court is the placement of the phrase “as described.” But that syntactical difference cannot change the meaning of the McCanns’ stipulations, for they still “specifically cit[e] I.R.C. § 6621(c)(3)(A)(v).” According to Prati, the inclusion of that citation suffices to establish a finding of sham. And so it does.
Even if the stipulations had not made a finding of sham, they provide another basis for assessing interest under former Section 6621(e): distortion of income. The full language of the stipulated decisions reads, “the foregoing adjustments to partnership income and expense are attributable to transactions which lacked economic substance, as described in former I.R.C. § 6621(e)(3)(A)(v), so as to result in a substantial distortion of income and expense, as described in I.R.C. § 6621(e)(3)(A)(iv).” E.g., Emperor Seedless-85, No. 15039-91, slip op. at 2 (emphasis added). “The phrase ‘so as to result in a substantial distortion of income and expense’ simply tracks the language of the former [I.R.C.] § 6621(e)(3)(A)(iv), which likewise helps to define tax-motivated transactions. Thus, each phrase independently establishes that the adjustments were attributable to the partnerships’ tax-motivated activities.” Duffie, 600 F.3d at 373 (quoting Nault, 517 F.3d at 5). Therefore, on this alternative ground the McCanns are bound by a determination that their transactions were tax motivated. That determination goes to “the nature of [the] partnership’s transaction^],” Keener, 551 F.3d at 1366, and cannot be disputed in the present partner-level suit, I.R.C. § 7422(h).
The Eppses challenge their assessment of former Section 6621(e) interest on different grounds. Unlike the McCanns, the Eppses did not enter into stipulated decisions. Instead, like the plaintiffs in Keener and the Prati set of plaintiffs in Prati, they settled their liability with the IRS through the use of Forms 870-P(AD). The Eppses nevertheless argue that their case is not governed by Keener or Prati. They contend that Keener is “limited to its facts because ... [its] penalty interest holdings are predicated on alleged concessions by those taxpayers. There are no such concessions here.” Pis.’ Opp’n at 10 (footnote and emphasis omitted). The Epps-es’ reference to concessions refers to commentary in Keener, as follows:
Taxpayers also obliquely suggest that this case is tantamount to the potential situation where the IRS imposes penalty interest when no partnership-level determination has been made that the transactions were tax motivated. Quite simply, this is not that case. Each relevant FPAA disallowed the partnership’s deductions because “[t]he partnership’s activities constitute^] a series of sham transactions.” Taxpayers concede that the FPAAs are conclusive, as this finding was not altered by the Settlement Agreements. And the statute is clear that a “sham or fraudulent transaction” is a “tax motivated transaction.” I.R.C. § 6621(e)(3)(A)(v) [ (repealed 1989) ].
551 F.3d at 1367 (alterations in original) (emphasis added). The Eppses reason that because they have not conceded that the FPAAs are conclusive, and because the Forms 870-P(AD) do not mention sham transactions, there has been no finding that they were involved in sham transactions.
The Eppses misread Keener. Keener did not rely on the taxpayers’ concession to *128determine that the FPAAs were conclusive. To the contrary, the Keener court noted the concession as only acknowledging the obvious: the FPAAs were conclusive because their findings “[were] not altered by the Settlement Agreements.” Keener, 551 F.3d at 1367. This understanding of Keener is confirmed by Schell and Prati, neither of which mention taxpayer concessions as bearing on the conelusiveness of the FPAAs. See Prati, 603 F.3d at 1308; Schell v. United States, 589 F.3d 1378, 1383-84 (Fed.Cir.2009) (citing Keener, 551 F.3d at 1366); see also Dahlberg, 104 Fed.Cl. at 222-23. Because the FPAAs are conclusive regardless of taxpayer concessions vel non, the Eppses are bound by them. Those FPAAs disallowed deductions because, among other reasons, the underlying transactions were shams.6 As with the stipulations binding the McCanns, the settlements incorporating the FPAAs and binding the Eppses did in fact make a determination of “the nature of [the] partnership’s transaction[s].” Keener, 551 F.3d at 1366. The Eppses cannot dispute that determination in this partner-level suit. I.R.C. § 7422(h).
C. Synopsis
Keener and Prati control the present case, and they require dismissal of plaintiffs’ claims. Plaintiffs’ statute of limitations claims must be dismissed because they are categorically attributable to partnership items. Plaintiffs’ claims for refund of penalty interest imposed under former Section 6621(c) must also be dismissed because they too are attributable to partnership items, namely, the characterization of the underlying transactions as shams. The McCanns’ penalty interest claims stem from the stipulated Tax Court decisions. Those decisions did in fact find that the McCanns’ partnership transactions were shams and involved substantial distortions of income. Those findings serve as partnership-item bases for the assessment of penalty interest against the McCanns, which cannot be challenged in this partner-level suit. The Eppses’ penalty interest claims stem from their Form 870-P(AD) settlements. According to Keener, Schell, and Prati, these settlements incorporated their predicate FPAAs. The FPAAs issued against the Eppses did in fact find that the Eppses’ partnership transactions were shams. This finding serves as a partnership-item basis for the assessment of penalty interest against the Eppses, which likewise cannot be challenged in this partner-level suit.
CONCLUSION
For the reasons stated, the government’s Motion to Dismiss is GRANTED. The Clerk of the Court is directed to enter final judgment, dismissing the McCanns’ and Eppses’ consolidated First Amended Complaint for lack of subject matter jurisdiction.
No costs.
It is so ORDERED.
. Unless otherwise indicated, citations to case filings refer to those in McCann v. United States, No. 06-216T (Fed.Cl. filed Mar. 17, 2006). McCann was consolidated with Epps v. United States, No. 06-615T (Fed.Cl. filed Sept. 5, 2006), on May 5, 2011.
. Kettle and Dahlberg dismissed claims based on arguments virtually identical to those made in the present case. Additionally, other recent Court of Federal Claims decisions have dismissed AMCOR claims presenting similar but not identical arguments. See, e.g., Barry v. United States, 103 Fed.Cl. 425 (2012); Northcutt v. United States, 103 Fed.Cl. 184 (2012); Fournier v. United States, 102 Fed.Cl. 495 (2011); Martin v. United States, 101 Fed.Cl. 664 (2011).
. This stands in contrast to claims related to the statute of limitations found atl.R.C. § 6501 and supplemented at I.R.C. § 6229. As discussed supra, Keener and Prati were explicit that any claim invoking those sections is inevitably attributable to a partnership item and thus barred in a partner-level proceeding.
. Correlatively, the IRS’ notice of computational adjustment respecting the partner-level treatment of a partnership item, see I.R.C. § 6231(a)(6), might be determined to be inadequate or improper after judicial inquiry. See Kercher v. United States, No. 4:07-cv-310, 2012 WL 874325, at *9-10 (E.D.Tex. Mar. 14, 2012); McGann v. United States, 76 Fed.Cl. 745, 758-61 (2007).
. Ronald C. Prati, a plaintiff in Prati, was a partner in Emperor Seedless-85, like Mr. McCann, and in Canyon Desert Vineyards, like Mr. Epps. Prati v. United States, 81 Fed.Cl. 422, 424 (2008), aff'd, 603 F.3d 1301.
. Plaintiffs additionally argue that the Section 6621(c) penalty is invalid because the FPAAs disallowed the deductions for multiple reasons, but only some of those reasons were grounds for assessing Section 6621(c) interest. This argument is meritless. As the Federal Circuit has repeatedly emphasized, “that the FPAAs listed 'sham transaction’ as one of several grounds for disallowing partnership does not, as the [taxpayers suggest, render the FPAAs less conclusive.” Schell, 589 F.3d at 1384 (citing Keener, 551 F.3d at 1366). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218257/ | MEMORANDUM OPINION AND ORDER VACATING STAY
WILLIAMS, Judge.
Background
In this action, Eaglehawk Carbon, Inc. and six other coal producers seek to recover reclamation fees paid to the United States under the Surface Mining Control and Reclamation Act. The reclamation fees are assessed on a per ton basis of “coal produced” and are used to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” 30 U.S.C. §§ 1202(a), 1232.
Plaintiffs contend that the fees imposed pursuant to § 1232 are unconstitutional because the assessment of reclamation fees on coal sold abroad operates as a duty on exports, in violation of the Export Clause of the U.S. Constitution, art. I, § 9, cl. 5 (stating that “No Tax or Duty shall be laid on Articles exported from any State”).
This matter comes before the Court on Plaintiffs’ Motion to Continue Stay of Proceedings. The case has been stayed since November 2001, to allow a companion case, Consolidation Coal Company v. United *130States, which raised the same legal issues, to wend its way through the United States Court of Federal Claims and the United States Court of Appeals for the Federal Circuit. Ultimately, in 2010, the Federal Circuit found § 1232 to be constitutional, and the United States Supreme Court denied a petition for a writ of certiorari in 2011. Plaintiffs request that the stay be continued until a recently filed case in the District Court for the District of Columbia, Coal River Energy, LLC v. Salazar, has run its course.1 Plaintiffs contend § 1232 will likely be found unconstitutional under precedent in the District of Columbia Circuit, and the l’esulting circuit split could entice the Supreme Court to grant certiorari. Plaintiffs submit that if a stay is not granted and this Court dismisses this action based upon the Federal Circuit’s decision in Consolidation Coal, Plaintiffs could never recoup the fees at issue, even if the Supreme Court were to later find § 1232 unconstitutional.
Defendant opposes another stay because the Federal Circuit has already definitively ruled on the constitutionality of § 1232 and its implementing regulations.2 Defendant claims that the government has shown conclusively that it is entitled to the reclamation fees and that a further indefinite stay would not serve the public interest or judicial economy.
Discussion
“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). A court has broad authority to issue a stay, both by rule and by this incidental power. Clinton v. Jones, 520 U.S. 681, 706-07, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997); Landis, 299 U.S. at 254, 57 S.Ct. 163. As the Federal Circuit has recognized, “[t]he power of a federal trial court to stay its proceedings ... is beyond question.... When and how to stay proceedings is within the sound discretion of the trial court.” Cherokee Nation of Okla. v. United States, 124 F.3d 1413, 1416 (Fed.Cir.1997) (citations omitted) (citing Landis, 299 U.S. at 254-55, 57 S.Ct. 163). “[I]n deciding to stay proceedings indefinitely, a trial court must first identify a pressing need for the stay. The court must then balance interests favoring a stay against interests frustrated by the action.” Id.
By delaying a final determination in this Court, Plaintiffs seek to avoid the results of adjudication consistent with the binding Federal Circuit precedent in Consolidation Coal. Plaintiffs hope to keep their cause of action live in order to take advantage of any change in the law down the road. A change in law would only have a retroactive effect on Plaintiffs’ claims if the case were still pending. As the Supreme Court has explained, “[w]hen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (emphasis added); see also Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359, 1370 n. 4 (Fed.Cir.2003) (recognizing that decisions of the Federal Circuit changing the law have retroactive effect as to “all pending litigation that has not been concluded with a final judgment, including appeals”).
Plaintiffs argue that the continuing forfeiture of fees that may ultimately be found unconstitutional constitutes a pressing need for a stay. At the time of the filing of their Second Amended Complaint in January 2007, Plaintiffs had paid approximately $733,500 in *131reclamation fees. See See. Am. Comp. Schedules A-F. Defendant has continued collecting reclamation fees on coal produced by Plaintiffs. In similar cases, the Court of Federal Claims has concluded that, despite this possible forfeiture, Plaintiffs’ disagreement with Consolidation Coal does not constitute a pressing need for an indefinite stay. Clinchfield Coal Co. v. United States, 102 Fed.Cl. 592, 596-97 (2011); Consolidation Coal Co. v. United States, 102 Fed.Cl. 489, 494 (2011) (stating that “the need identified by plaintiffs is also not particularly pressing since the weight of the need hinges on plaintiffs’ assumption that the fee is unconstitutional, even though the Federal Circuit explicitly found otherwise”); Red River Coal Co. v. United States, No. 01-441C, 2012 WL 285051 at *1 (Fed.Cl. Jan. 31, 2012) (unpublished). In all three of these opinions the Court of Federal Claims rejected the proposition that a possible forfeiture of an unconstitutional tax could rise to the level of a pressing need because “[sjtaying litigation in order to let plaintiffs have a second bite at the apple does not establish a compelling need.” Clinchfield Coal, 102 Fed.Cl. at 597 (quoting Consolidation Coal Co., 102 Fed.Cl. at 494).
A balancing of the competing interests favoring and militating against a stay also compels a conclusion that the stay must be denied. Weighing most heavily against a stay and undercutting Plaintiffs’ articulated “pressing need” for a stay are the interests of creating and protecting finality in litigation. “It is just as important that there should be a place to end as that there should be a place to begin litigation.” Travelers Indem. Co. v. Bailey, 557 U.S. 137, 154, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009) (quoting Stoll v. Gottlieb, 305 U.S. 165, 172, 59 S.Ct. 134, 83 L.Ed. 104 (1938)); see also Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931). This policy has been implemented to preclude parties from contesting matters that they have had a full and fair opportunity to litigate, to protect their adversaries from the expense and vexation of multiple lawsuits, and to conserve judicial resources. Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). Plaintiffs’ strategy to keep a lawsuit in place indefinitely in order to take advantage of potential change in the law violates the longstanding policy promoting an end to litigation. “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” Baldwin, 283 U.S. at 525, 51 S.Ct. 517.
Coal producers in the identical position as Plaintiffs have had their day in court here and before the Federal Circuit. While the law does provide for reopening judgments in some circumstances, “[ijt is well settled that courts will not disturb final judgments unless the moving party demonstrates the existence of extraordinary circumstances.” United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 660 (1st Cir.1990) (citing United States v. Swift, 286 U.S. 106, 119, 52 S.Ct. 460, 76 L.Ed. 999 (1932)); see also Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 830 (7th Cir.1985); Infiniti Info. Solutions, LLC v. United States, 93 Fed.Cl. 699, 705 n. 11 (2010) (collecting cases explaining what constitutes “exceptional circumstances”). Even in the context of Rule 60(b) of the Rules of the United States Court of Federal Claims (“RCFC”), which sets forth grounds for relief from a final judgment, a change in law would not constitute such an extraordinary circumstance.3 Agostini v. Felton, 521 U.S. 203, 239, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)”). The Sixth Circuit, citing Agostini, has noted that “[tjhis principle holds even if a law is invalidated on state or federal constitutional grounds.” Blue Diamond Coal Co. v. Trustees of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001). See also Broyhill Furniture Indus. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1084 (Fed.Cir.1993) (stating that a judgment is not void within the meaning of Rule 60(b)(4) “because *132the precedent upon which it was based is later altered or even overruled”) (citing Boch Oldsmobile, 909 F.2d at 661); Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 650 (1st Cir.1972) (stating that “a change in applicable law does not provide sufficient basis for relief under Rule 60(b)(5)”); Infiniti Info. Solutions, 93 Fed.Cl. at 706 n. 11 (noting that “courts have not granted relief when there have been post judgment changes in the law”) (citing United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 337-40 (5th Cir.2005)).
Plaintiffs filed this action 11 years ago, and the Court is tasked by its own rales with ensuring a “just, speedy, and inexpensive determination of every action and proceeding.” RCFC 1. A continued stay would frustrate this rule by prolonging indefinitely a litigation which is ripe for resolution.
Conclusion
Plaintiffs’ request for a continuation of a stay is DENIED. The stay is vacated. On or before June 8, 2012, the parties shall file a joint schedule for further proceedings.
. The complete caption for the case is Coal River Energy, LLC v. Ken Salazar, Secretary, and United States Department of the Interior, Civil No. 11-01648(RMC) (filed Sept. 13, 2011).
. In Consolidation Coal Company v. United States, 528 F.3d 1344 (Fed.Cir.2008), the Federal Circuit upheld the constitutionality of § 1232. Two years later, in Consolidation Coal Company v. United States, 615 F.3d 1378 (Fed.Cir.2010), the Federal Circuit ruled that the implementing regulations, including 30 C.F.R. § 870.12, did not conflict with the Export Clause, and therefore were constitutional.
. RCFC Rule 60(b) is identical to Federal Rule of Civil Procedure 60(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218260/ | OPINION AND ORDER
SMITH, Senior Judge.
This case is one of many eases before the Court whereby Defendant alleges that the ease must be dismissed pursuant to RCFC 12(b)(1), relying on 28 U.S.C. § 1500 as interpreted by United States v. Tohono O’odham Nation, — U.S. -, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011) (“Tohono O’odham ”). In this ease, it is undisputed that Plaintiff filed its complaint in this Court, and then, several hours later and on the same day, filed a complaint in the United States District Court for the Western District of Oklahoma. Defendant argues that this fact, the order of filing, is irrelevant for purposes of § 1500 and is not pertinent in light of Tohono O’odham and, therefore, the case must be dismissed. For the reasons set forth below, the Court rejects with Defendant’s argument and DENIES Defendant’s Motion to Dismiss.
Relevant Facts
1
At 9:01 A.M. Eastern Standard Time on December 26, 2006, Otoe-Missouria filed a complaint with the Court of Federal Claims (“CFC”) alleging the Government’s mismanagement of tribal assets in trusts. Specifically, the Tribe alleged that the Government breached its statutory, regulatory and fiduciaries duties to them.2 On that same day, a second complaint was filed at 2:04 P.M. Central Standard Time in the United States District Court for the Western District of Oklahoma (“District Court”). In this complaint, Otoe-Missouria alleges that the Government has not provided .an accurate accounting to the Tribe of its Trust Fund and requests a declaratory judgment that the Government has not provided a complete and accurate accounting of the Trust Fund. Plaintiff also requests equitable relief requiring that the Government correct the books to reflect a true and accurate accounting.
Discussion
Before the Court is Defendant’s motion to dismiss based on lack of subject matter jurisdiction. In order to determine whether to grant or deny a motion to dismiss, the Court must “must accept all well-pleaded factual allegations as true and draw all reasonable inferences in [the plaintiffs] favor.” Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000). Subject matter jurisdiction is a threshold issue to be considered before proceeding to the merits of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). A plaintiff must establish that the Court has subject matter jurisdiction over its claims by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (internal citations omitted). If subject matter jurisdiction is lacking, the Court must dismiss the claim. RCFC 12(h)(3).
*138Here, Defendant asserts that 28 U.S.C. § 1500 as interpreted by Tohono O’odham dictates dismissal. Specifically, Defendant asserts that the because Plaintiff filed its complaint in this Court hours before filing in federal district court the sequence of filing is no longer pertinent to § 1500’s applicability and, thus, the case must be dismissed. The Court will, therefore, turn its attention to § 1500 and Tohono and their application to the case at bar.
Section 1500 of Title 28 provides:
The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.
28 U.S.C. § 1500. In Tohono O’odham, the Supreme Court stated, “[the statute] is more straightforward than its complex wording suggests. The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.” Tohono O’odham, 131 S.Ct. at 1727. If there is a claim “pending” in another court at the time of filing, the claim may trigger § 1500 if the pending claim is “for or in respect to the same claim.” Id. at 1731 (referencing Keene Corp. v. United States, 508 U.S. 200, 209, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993)). Yet, the statute does not define what it means for two lawsuits to be “for or in respect to” the same claim, nor does it define what it means for a plaintiff to “ha[ve] pending another claim” or to specify at what point during the lawsuit another lawsuit cannot be pending. These are the questions that are now before this Court. In order to determine these answers, the Court must first determine whether Plaintiffs district court action was “pending” as defined by § 1500 at the time Plaintiff filed its complaint with this Court. Only if the Court finds that the action was “pending” does the Court move on to the second question, that is, whether district court claim is “for or in respect to” the claim filed in this Court. The Court begins its analysis, therefore, by determining whether a case was pending at the time Plaintiff filed its case in this court.
Tecon Eng’rs, Inc. v. United States, 343 F.2d 943 (Ct.Cl.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966), is the controlling authority with respect to the determination as to whether the Plaintiffs case is “pending” within the meaning of § 1500. Specifically, Tecon held that the CFC lacks jurisdiction if a plaintiff has commenced another action in any other court “for or in respect to” the same claim as that one subsequently filed by the plaintiff in the CFC. Id. at 943-49. This holding is known as the “order of filing” rule. Plaintiff relies on this language to argue that this Court retains jurisdiction because it filed its complaint with this Court before filing a second complaint in the District Court, even though filing on the same day. Furthermore, Plaintiff maintains that Tecon remains good law because it was not considered in Tohono O’odham in which the order of filings was reversed from this case. See Tohono O’odham, 131 S.Ct. at 1727 (involving a claim filed in the CFC one day after the plaintiff filed with the Federal District Court); id. at 1729-30 (“The Tecon holding is not presented in [Tohono O’Odham ] because the CFC action here was filed after the District Court suit.”).
Contrary to Plaintiffs assertions, Defendant argues that Tohono O’odham overruled Tecon precluding this Court from exercising jurisdiction. Defendant suggests that the Tohono O’odham Court expressed disapproval of Tecon because it deviated from § 1500’s purpose to protect the court system against redundant litigation, Tohono O’odham, 131 S.Ct. at 1730 and is, therefore, no longer good law.
The argument that Tecon is no longer good law is not a new argument by Defendant nor has it been accepted or followed by this Court. In Yakama Nation, this Court held “that Tohono O’Odham does not disturb Tecon_” Yakama Nation Hous. Auth. v. United States, 102 Fed.Cl. 478, 484 (2011). Other judges of this Court have similarly *139held the same. Kaw Nation of Oklahoma v. United States, 103 Fed.Cl. 613, 617 (2012) (“[I]t is abundantly clear Tohono did not expressly overturn Tecon.”), United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, 104 Fed.Cl. 180, 187 (2012) (“United Keetoowah ”) (“Tecon is controlling Federal Circuit precedent.... [The Court] rejects the Government’s facial challenge to Tecon....”); Coeur d’Alene Tribe v. United States, 102 Fed.Cl. 17, 25 (2011) (“The Tohono Court, however, declined to either overrule or explicitly endorse Tecon’s order-of-filing rule, and it did not indicate otherwise that Tecon is no longer good law.”); Nez Perce Tribe v. United States, 101 Fed.Cl. 139, 145 (2011) (“the Tecon timing rule” remains “undisturbed.”).
The Court rejects Defendant’s argument once again, as it did in Yakama Nation, and holds that Tecon is still good law and has not been overturned. The holding was clear in Tohono O’odham that “the Tecon holding is not presented in this case because the [Court of Federal Claims] action here was filed after the District Court suit.” 131 S.Ct. at 1729-30. Therefore, the Court applies the order of filing rule. In doing so it is clear that the undisputed facts show that Plaintiff filed its complaint first in the Court of Federal Claims, then filed a second complaint in the District Court. Thus, at the time Plaintiff filed suit in this Court there was no claim pending in any other court.
To support its holding, the Court need only turn to the language contained in § 1500. Section 1500 clearly states that the CFC retains jurisdiction unless “the plaintiff or his assignee has pending in any other court any suit or process against the United States_” 28 U.S.C. § 1500 (emphasis added). It is well settled that the starting point for statutory interpretation is the plain meaning of the text. The plain language of § 1500 is clear: the CFC shall not have jurisdiction when there is another suit pending in the district court. The word “pending,” of course must be given its plain meaning in statutory construction. The plain meaning of pending in court is that there is some action going on in the court. All of the dictionary references refer to something ongoing and awaiting a conclusion or a decision. If pending meant any eases that might be filed in court it would require a psychic analysis of the minds of every person in the country or world who might file a case. Pending is a term that refers to a present state, any other definition would make the term hopelessly ambiguous. A case is either in the court, i.e. pending, or it is not. It is not like the quantum state of subatomic particles where they are both there and not there at the same time. When the Clerk of this Court yearly reports to the Congress that we have so many cases the Clerk does not include cases that “might” be filed, or which people are thinking of filing, or cases which could be filed. Cases are either filed or they are not. Pending, in common legal parlance, refers to eases that are filed. Cases to be filed in the future can never be pending until they are actually filed. Though it might be nice to be able to predict which cases might be filed in the future, unfortunately that power does not exist, and the Congress clearly knew that in drafting § 1500. The Court stated it clearly in Yaka-ma Nation:
Since jurisdiction in a case is and must be determined as of the date of filing the case, Keene, 508 U.S. at 207, 113 S.Ct. 2035, it follows from the plain language of the statute that at the time of filing, if there is another ease pending based on the same operative facts, then the jurisdiction does not exist and the case must be dismissed. However, the corollary of that rule is that if there is no pending ease, then the jurisdiction is proper as of the moment of the filing. If that were not so, one would have to say that valid jurisdiction could always be divested by one party or the other filing a complaint based upon the same operative facts at any time during the litigation, perhaps even several years later. If jurisdiction in the CFC does not arise at the time of filing, then the corollary is that a party who filed in the district court prior to filing in the CFC could create jurisdiction in the CFC by dismissing the district court case. Logically, jurisdiction has to be measured at either the time of filing or it can appear or disappear or disappear *140and reappear at any time during the litigation. Since Tohono O’Odham states that the purpose of the statute is “to save the Government from the burdens of redundant litigation” Tohono O’Odham at 1730, the Government’s interpretation makes no sense in light of Tohono O’Odham’s holding.
Yakama Nation at 484 (emphasis added.).
Even though here the complaints were filed on the same date, it holds true that at the time of filing no other suit was “pending” and hence this Court has jurisdiction. It is from the moment of the filing, not necessarily the date of filing. Due to the order of filings in this case, Tohono O’odham does not affect this interpretation. Plaintiff filed the complaint with the CFC before filing in the District Court. Thus, according to the plain language of § 1500, the District Court case was not already “pending” when the Plaintiff filed suit in this Court. Consequently, the Court holds that the subsequent action in the District Court does not preclude this Court from jurisdiction over the matter.
Even assuming that Tecon remains good law, Defendant asserts that three other decisions establish that § 1500 divests this Court of jurisdiction. The cases Defendant relies upon are: Hobbs v. United States, 168 Ct.Cl. 646 (1964) (per curiam); Maguire Indus., Inc. v. United States, 114 Ct.Cl. 687, 86 F.Supp. 905 (1949) and Passamaquoddy Tribe v. United States, 82 Fed.Cl. 256 (2008). Recently, Judge Wheeler, in United Keetoo-wah addressed these arguments. In that case, the court was faced with the same question as presented here: whether the complaints filed in the Court of Federal Claims were to be dismissed for lack of jurisdiction based upon the fact that the Plaintiff filed, on the same day, a complaint in the CFC and then thereafter a complaint in the United States Distinct Court for the Eastern District of Oklahoma. From the undisputed facts presented, Judge Wheeler found jurisdiction. Within his opinion, Judge Wheeler, discussed and distinguished both the Hobbs and Maguire cases. The procedural posture of these eases was quite different than that of the present one or in United Keetoowah. Indeed, in both Hobbs and Maguire “it was not the subsequent filing of suit in another court that divested the Court of Claims of jurisdiction ... it was the filing of an appeal of an action that was filed and dismissed prior to the Court of Claims suit.” Id. at 186 quoting Coeur d’Alene Tribe, 102 Fed.Cl. 17, 25. This Court also adopts the reasoning of both Judge Damich in Coeur d’Alene Tribe, and Judge Wheeler in United Keetoowah, as here “the Plaintiff is not appealing administrative denials based on the same operative facts in any of the circuits.” United Keetoowah at 186.
Lastly, Defendant argues that this case does not implicate the sequence of filing rule at all relying on Passamaquoddy Tribe v. United States, 82 Fed.Cl. 256 (2008). In Passamaquoddy Tribe, claims filed on the same day were treated as per se “simultaneously ],” depriving this Court jurisdiction pursuant to § 1500. Id. at 267. See United States v. County of Cook, Ill., 170 F.3d 1084, 1091 (Fed.Cir.1999). The Court is not persuaded. Instead, the Court follows the reasoning and holdings in Kaw Nation and United Keetoowah which limit Passama-quoddy Tribe as “a rule of necessity, triggered when evidence is lacking as to which of the two complaints was filed first.” United Keetoowah at 189 citing Kaw Nation, 103 Fed.Cl. at 634.
In light of the Court’s holding that the CFC complaint was not pending at the time Plaintiff filed its second complaint in the district court, the Court need not answer the second question, whether the claim is “for or in respect to” the same claim filed in this Court.
Conclusion
For the reasons set above, the Court hereby DENIES Defendant’s Motion to Dismiss.
It is so ORDERED.
. The facts are taken from the Joint Stipulation of Facts Relating to Defendant's Motion to Dismiss.
. Plaintiff has twice amended its Complaint in this Court to modify its claims for relief. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218261/ | OPINION AND ORDER
LETTOW, Judge.
This case concerns a contractual allocation of water for production of power from the upper Snake River in Idaho. In 1923, Idaho Power Company (“Idaho Power”) reached an agreement with the Bureau of Reclamation (“the agency”) concerning construction of the then-proposed American Falls Dam on land partially owned by Idaho Power and with respect to claimed water rights as to which Idaho Power had priority over those filed by the United States (“the government”). The agreement preserved rights to Idaho Power for production of hydroelectric power but obligated it to pay a portion of the maintenance costs of the dam. That agreement was partially modified and superseded by an agreement in 1976 providing for construction and operation of the American Falls Replacement Dam.
In 2007, Idaho Power filed a complaint in this court alleging that the government had deprived the company of its water storage rights. After significant discovery and other pretrial proceedings had occurred, the case was stayed to allow the specially constituted Idaho Snake River Basin Adjudication Court to address water rights on the segment of the Snake River that included the American Falls Replacement Dam. After that adjudication had been completed in pertinent part, the stay was lifted and Idaho Power filed a revised complaint on February 13, 2012. In that revised complaint Idaho Power sought refund of operating and maintenance costs at the dam that it had purportedly overpaid since 2001.
The government has filed a motion to dismiss part of the revised complaint pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). It argues that under the statute of limitations applicable to suits under the Tucker Act, the court lacks jurisdiction to entertain any claim concerning payments made prior to 2006, i.e., six years before the revised complaint was filed. Idaho Power responds that its revised complaint relates back to its initial complaint filed in 2007 such that the court could award damages for allegedly overpaid maintenance costs from 2001 onwards.
BACKGROUND1
The government and Idaho Power first entered into an agreement concerning water rights at American Falls on June 15, 1923. Pl.’s Resp. to Def.’s Mot. for Partial Dismissal (“Pl.’s Opp’n”) Ex. 1 (“Contract Between the United States and the Idaho Power Company, Relative to Power Rights at American Falls, Idaho”) (“1923 Contract”). The United States wanted to construct a reservoir at American Falls, Idaho, to store the waters of the Snake River for use in irrigation. 1923 Contract art. 2.2 Idaho Power owned part of the land of the dam site, had power generating stations and other property that would have to be destroyed to build the dam, and had filed claims for water rights that preceded the filings of the government. Id. arts. 5-6. Idaho Power also possessed two hydro*143electric plants downstream of the site that depended on a steady flow of water from American Falls. Id. art. 4.
Under the terms of the contract, Idaho Power conveyed the land, power facilities, and other property at American Falls to the United States. 1923 Contract art. 9. It reserved, however, the right to use the Snake River water flow for power generation. See id. art. 9(a). In exchange for the land and property, the United States gave Idaho Power $1,000,000, id. art. 27, and the right to store water in the reservoir, id. arts. 16, 18-19. Specifically, the contract granted Idaho Power a “primary right” to store up to 45,000 acre-feet of water per year in the reservoir. Id. art. 16. The company could demand that this stored water be released from the dam to power its hydroelectric plants. Id. art. 21. The contract further provided that the company would have a “secondary right” to store up to 255,000 acre-feet of water. Id. art. 18. This right was secondary in the sense that the company could only exercise it “when such capacity is not then required and not being used by the owners of irrigation rights to the use of such capacity.” Id. Overall, the contract accordingly gave Idaho Power the ability to derive power from the release of up to 300,000 acre-feet of water a year, subject to some limitations. Id. arts. 19-21. Idaho Power agreed to pay a percentage of the operation and maintenance (“O & M”) costs of the dam. See id. art. 17.
The United States built the American Falls dam and reservón’ pursuant to the 1923 Contract. The reservoir appears to have held 1,700,000 acre-feet of water, such that Idaho Power’s primary storage right of 45,-000 acre-feet constituted 2.6471% of the total capacity. See Pl.’s Opp’n Ex. 2 (“Spaeeholder Contract Among the United States, the American Falls Reservoir District, and Idaho Power Company for Storage in the American Falls Replacement Dam and for Construction and Operation and Maintenance of the American Falls Replacement Dam Program”) (“1976 Contract”), art. 5. The parties complied with the terms of the agreement without event for over 50 years. At some point, however, the United States discovered that alkali-aggregate chemical reactions were affecting the concrete of the dam and reducing its total storage capacity. Id. art. 2.
On March 31, 1976, the United States, Idaho Power, and the American Falls Reservoir District entered into a contract concerning the construction of a replacement dam at the American Falls. See, e.g., 1976 Contract art. 19(a). This 1976 Contract reaffirmed the 1923 Contract between the United States and Idaho Power except insofar as the terms of the new agreement conflicted with those of the 1923 Contract. Id. The United States agreed to “continue to make available to [Idaho Power] stored water accruing to 2.6471 % of the active capacity of the Replacement Dam.” Id. art. 21(b). The contract also provided that Idaho Power would pay 7.1388% of the O & M costs of the new dam. Id. art. 28(b). This latter percentage corresponds roughly to the same proportional amount that the company paid for O & M fees under the 1923 Contract. See Second Am. Compl. ¶¶ 36-37. Idaho Power paid this 7.1388% without complaint until the instant suit. The 1976 Contract does not directly address Idaho Power’s secondary storage capacity.
In 2001, Idaho Power asked the Bureau of Reclamation to release water from its 255,000 acre-feet of secondary storage capacity pursuant to the 1923 Contract. Compl. ¶¶ 22, 24. It avers that the agency refused to comply. Compl. ¶¶ 22, 24. Idaho Power alleges that it made similar requests during the following six years, all of which were denied by the agency. Compl. ¶¶ 25-27.
On October 16, 2007, Idaho Power filed its initial complaint in this court, alleging a breach of contract and breach of trust by the government. Compl. ¶¶ 28-38. Plaintiff asked the court to award damages, the bulk of which would be for electricity it would have generated had the agency abided by the 1923 Contract. Compl. ¶¶ 31, 37. On September 30, 2008, Idaho Power submitted an amended complaint. This pleading was largely identical to the first complaint, except for a new claim for declaratory judgment. First Am. Compl. ¶¶ 50-51. Idaho Power asked the court to issue “a binding, prospective declaration of rights and duties stem*144ming from the 1923 Contract.” First Am. Compl. ¶ 51.
After an answer to the amended complaint was filed and the parties had undertaken discovery and trial preparations, on March 17, 2010, they moved to stay the proceedings pending the outcome of a water rights case in a special Idaho state court. See Joint Mot. for Stay of Proceedings (“Joint Mot. to Stay”). An Idaho court had been established to settle “the nature, extent and priority of the rights of all users of surface and ground water from [the Snake River] system.” Idaho Code Ann. § 42-1406A (uncodified 1994). Although the Idaho Snake River Basin Adjudication (“SRBA”) Court began proceedings in 1987, it serially considered segments of the river on a subcase-by-subcase basis. See Hr’g Tr. 18:25 to 19:4 (May 3, 2012) (“[T]he Snake River Basin Adjudication was established, as you said, to address various segments of the river. And so there is Basin 1, Basin 2, and they go all the way up into the 40s, various segments of the [r]iver.”). The Idaho SRBA Court began considering the claims on the American Falls portion of the river basin in the late 2000s. See In re SRBA, Case No. 39576, Subcase 01-2064 (Idaho Dist. Ct. Mar. 31, 2011) (attached as Ex. 1 to Def.’s Notice of Filing, May 5, 2011, ECF No. 44). The parties sought the stay because they believed that resolution of water rights in that case might narrow the contractual issues before this court. Joint Mot. to Stay at 2. The court granted the requested stay. See Order of March 23, 2010, ECF No. 24.
The Idaho Snake River Basin Adjudication Court issued its ruling over a year later, on March 31, 2011. It held that Idaho Power’s only storage guaranteed in the reservoir was its primary right for 45,000 acre-feet of water. In re SRBA at 24. The court reasoned that “the 1976 Spaeeholder Contract intended to define all spaeeholder storage rights, whether considered secondary storage or pass-through.” Id. Because the 1976 Contract did not grant or reaffirm the right to 255,000 acre-feet from the 1923 Contract, “that meant Idaho Power’s secondary storage right was effectively waived, abandoned, relinquished or simply bargained away.” Id. The Idaho court declined to rule on whether the United States might subsequently be determined to hold the right to those 255,000 acre-feet in trust for Idaho Power, finding that issue “incomplete and not ripe for decision.” Id. at 27. Idaho Power moved for reconsideration, Hr’g Tr. 3:15-17 (June 7, 2011), but without success.
On January 24, 2012, in the aftermath of the SRBA decision, Idaho Power submitted a supplemental complaint.3 In this latest version of the complaint, Idaho Power omitted its allegations that the agency’s failure to release waters breached the 1923 Contract. Instead, the supplemental complaint focuses on a demand for a refund of a portion of the O & M fees Idaho Power has paid since 2001. Second Am. Compl. ¶¶ 48-50. Idaho Power alleges that it agreed to pay 7.3188% of the O & M expenses based on the understanding that it still had a secondary storage right of 255,000 acre-feet, Second Am. Compl. ¶¶ 36, 43-44, noting that all the other spaeeholders pay O & M fees roughly proportional to their storage capacity in the American Ralls reservoir, Second Am. Compl. ¶ 41. Idaho Power claims that, if it had known that it possessed only the primary right (comprising 2.6471 % of the reservoir), it would not have agreed to pay more than approximately 2.6471% of the O & M costs. Second Am. Compl. ¶¶ 35, 46. Consequently, it argues, the court should refund the surplus payment and rescind or reform the contract based on the doctrine of mistake. Second Am. Compl. ¶¶ 49, 55-56.
The government filed a motion for partial dismissal of this complaint on February 27, 2012, seeking to dismiss the supplemental *145complaint insofar as it claimed alleged over-payments made before January 24, 2006. Def.’s Mot. for Partial Dismissal at 1. The government argues that any payments made prior to this date fall outside the six-year statute of limitations prescribed by 28 U.S.C. § 2501 for claims made under the Tucker Act, 28 U.S.C. § 1491(a). Id. at 1-2. Idaho Power has opposed this motion, contending that the second amendment to its complaint relates back to the filing of its original complaint on October 17, 2007. Pl.’s Opp’n at 1 n. 2. Under this view, the court would be empowered to award damages for alleged overpayments made on and after October 17, 2001. Id.
STANDARDS FOR DECISION
“Jurisdiction must be established as a threshold matter before the court may proceed with the merits of this or any other action.” OTI Am., Inc. v. United States, 68 Fed.Cl. 108, US (2005) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). This court’s subject matter jurisdiction is “prescribed by the metes and bounds of the United States’ consent to be sued in its waiver of immunity.” RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed.Cir.1998) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). One dimension of that consent is the six-year statute of limitations specified in 28 U.S.C. § 2501. See John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354 (Fed.Cir.2006) (“[Statutes of limitations for causes of action against the United States, being conditions o[n] the waiver of sovereign immunity, are jurisdictional in nature.” (quoting Martinez v. United States, 333 F.3d 1295, 1316 (Fed.Cir.2003) (en banc))), aff'd, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008).
As plaintiff, Idaho Power “bears the burden of establishing subject-matter jurisdiction by a preponderance of the evidence.” M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed.Cir.2010) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988)); see also McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). In determining whether subject matter jurisdiction exists, the court “accepts as true the undisputed allegations in the complaint, and draws all reasonable inferences in favor of the plaintiff.” De Maio v. United States, 93 Fed.Cl. 205, 209 (2010) (citing Hamlet v. United States, 873 F.2d 1414, 1415-16 (Fed.Cir.1989)).
ANALYSIS
The sole issue presented by the government’s motion for partial dismissal is whether Idaho Power’s revised complaint relates back to the original complaint.4 The relation-back doctrine is governed by RCFC 15(c). The pertinent portion of the Rule states that “[a]n amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim ... that arose out of the conduct, transaction, or occurrence set out ... in the original pleading.” RCFC 15(c)(1)-(e)(1)(b). In applying this rule, courts have focused on whether the claims in the original complaint put the defendant on notice of the claims contained in the supplemental complaint. See Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1369 (Fed.Cir.2004) (“[T]he inquiry in a determination of whether .a claim should relate back will focus on the notice given by the general fact situation set *146forth in the original pleading.” (quoting Snoqualmie Tribe of Indians ex rel. Skykomish Tribe of Indians v. United States, 372 F.2d 951, 960 (Ct.Cl.1967))); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 n. 3, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam) (“The rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide.” (citing 3 James Wm. Moore et al., Moore’s Federal Practice ¶ 15.15[3], p. 15-194 (2d ed. 1984))).
If the notice test is met, it does not matter whether the new claim is premised on a legal theory different from the one set out in the original complaint. See J.L. Simmons Co. v. United States, 412 F.2d 1360, 1387 (Ct.Cl.1969) (“It would be a return to the old ‘cause of action’ approach to declare the claim time-barred because the original theory of relief was ... breach of contract, and the consequences of those defective procedures are now characterized as a ‘taking.’”); see also Federal Deposit Ins. Corp. v. Bennett, 898 F.2d 477, 480 (5th Cir.1990). In analyzing whether the original complaint provided sufficient notice to the government, the court is “mindful that the relation back doctrine of Rule 15(c) is to be liberally applied.” Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1260 n. 29 (9th Cir.1982); Snoqualmie Tribe, 372 F.2d at 960 n. 5.
The court begins its inquiry by “comparing] the original complaint to the amended version.” Creppel v. United States, 33 Fed.Cl. 590, 594 (1995). Here, Idaho Power’s first complaint primarily alleges that the government unfairly denied Idaho Power its right to 255,000 acre-feet of secondary storage capacity, as guaranteed under the 1923 Contract. Compl. ¶¶ 22, 24. Idaho Power filed its supplemental complaint after the SRBA decision determined that the 1976 Contract extinguished its secondary storage right. In this pleading, Idaho Power claims that it agreed to pay O & M fees based on the mistaken belief that the 1976 Contract had perpetuated its right to the 255,000 acre-feet. Second Am. Compl. ¶¶ 38, 40-41.
Both of Idaho Power’s claims manifestly turn on the viability of a right to 255,000 acre-feet of secondary storage capacity, but that fact alone does not answer the question “whether the general fact situation or the aggregate of the operative facts underlying the claim for relief in the first petition gave notice to the government of the new matter.” Vann v. United States, 420 F.2d 968, 974 (Ct.Cl.1970) (citing United States v. Northern Paiute Nation, 393 F.2d 786, 790 (Ct.Cl.1968); Snoqualmie Tribe, 372 F.2d at 959-61). Foui’ separate, interrelated considerations, however, persuade the court that Idaho Power's pleadings satisfy this test.
First, the 1923 and 1976 Contracts are deeply intertwined. The government’s attempt to draw a clean division between the two is simply not possible. One cannot understand the parties’ legal relationship vis-a-vis the American Falls Reservoir without the aid of both documents. See, e.g., 1976 Contract art. 19(a) (“The provisions of the [1923] Contract shall in all respects remain in full force and effect except that the provisions of this [1976] Contract with respect to the Replacement Dam, including but not limited to the operation and maintenance thereof and the distribution of water therefrom, shall prevail over the provisions of the [1923] Contract.”).
As a result, this is not a case in which Idaho Power is attempting to draw upon a contract that is only tangentially related to the one alleged in the original pleading. See United States ex rel. Miller v. Bill Harbert Int'l. Constr., Inc., 608 F.3d 871, 882 (D.C.Cir.2010) (per curiam) (declining to apply the relation back doctrine where “each contract required work to be performed on a different project and was awarded in a different year to a different winning bidder drawn from a different pool of prequalified bidders”). In effect, the 1976 Contract is more akin to a partial modification of the 1923 Contract than an independent instrument. See 1976 Contract art. 48 (“This [1976] Contract is supplemental and in addition to the [e]xisting [1923] Contract.”); id. art. 19(a). Any lawsuit premised on the 1923 Contract implicates the 1976 Contract and vice versa. Consequently, the government had notice *147that provisions of the 1976 Contract might come into play in this action, even though the original complaint focused on language in the 1923 agreement. Cf. Snoqualmie Tribe, 372 F.2d at 959-61 (applying relation back where amended and original pleadings both alleged violations of the same treaty, even though the original petition “claimed with particularity a certain portion of the [t]reaty cession,” id. at 959, that differed from the portion relied upon by the amended petition).
Second, the genesis of the dispute over O & M fees is found in the 1923 agreement. It was that contract that (1) granted Idaho Power 255,000 acre-feet of secondary storage, (2) applied the general principle that a spaeeholder would pay O & M fees in proportion to its storage capacity, and (3) thus fixed the company’s obligations at 7.1388% of the O & M expenses. These clauses in the 1923 Contract are the preconditions to the present-day disagreement over Idaho Power’s proper share of O & M costs. When the company agreed to continue paying the 1923 levels of O & M expenses in the 1976 Contract, it allegedly did so based on the belief and understanding that it retained the 1923 levels of storage capacity. Idaho Power expected that the 1923 principle of proportionality of O & M costs would persist under the 1976 Contract. Thus the current dispute stems from the same foundation that gave rise to the claim in the original complaint.
Third, the secondary storage capacity remains at the heart of both the original pleading and the supplemental complaint. The original complaint specifically informed the government that Idaho Power claimed it still possessed the 255,000 acre-feet of storage capacity granted by the 1923 Contract. Compl. ¶ 22 (“Pursuant to the 1923 Contract, [defendants have a contractual duty to Idaho Power to provide flows of water from the 255,000 acre-feet of secondary storage capacity.”). This claim put the government on notice that it might have to defend derivative and further claims relating to the 255,000 acre-feet of storage capacity. This is particularly true where, as here, the government specifically challenged Idaho Power’s right to this storage capacity in the SBRA subcase dealing with the segment of the Snake River Basin that included American Falls. See In re SRBA at 2 (noting that as early as 2009, the government was arguing that Idaho Power had a right to only 44,275 acre-feet of storage capacity). The first complaint requested damages on the grounds that the government had unfairly deprived it of the secondary storage right; the later complaint alleges that plaintiff agreed to its O & M rate based on the mistaken belief that it held this storage capacity. Cf. Tiller v. Atlantic Coast Line R.R., 323 U.S. 574, 580-81, 65 S.Ct. 421, 89 L.Ed. 465 (1945) (permitting the relation back of an amended complaint which added a statutory basis for recovery to the original claim of negligence, since both counts centered on defendant’s responsibility for the death of the decedent).
Fourth, the government relies heavily on Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005), to support a narrow construction of RCFC 15(e). Def.’s Mot. for Partial Dismissal at 3-5. In doing so, the government neglects the context of that ease. Mayle was a habeas corpus case, and the Supreme Court’s opinion was crafted to address relation back in that particular circumstance. See Mayle, 545 U.S. at 656, 125 S.Ct. 2562 (“This case turns on the meaning of Federal Rule of Civil Procedure 15(e)(2)’s relation-back provision in the context of federal habeas proceedings.” (emphasis added)). Other courts have recognized that the Supreme Court’s stringent reading of Rule 15(e) in Mayle turned on the habeas setting. See United States v. Ciampi, 419 F.3d 20, 23 (1st Cir.2005) (“[I]n the habeas corpus context, the Rule 15 ‘relation back’ provision is to be strictly construed, in light of ‘Congress’ decision to expedite collateral attacks by placing stringent time restrictions on [them].’ ” (second alteration in original) (quoting Mayle, 545 U.S. at 657, 125 S.Ct. 2562)); Quaak v. Dexia, S.A., 445 F.Supp.2d 130, 138 n. 4 (D.Mass.2006) (“[Mayle] is inapposite[,] however, as the Court made clear that its analysis was in the context of Congress’s finality and federalism concerns in enacting the Antiterrorism and Effective Death Penalty Act of 1996.” (quoting Mayle, 545 U.S. at 663, 125 S.Ct. 2562) (internal quotation marks omitted)). As a result, while this court is guided by the Supreme *148Court’s reasoning in Mayle, it declines to apply that holding to bar the relation-back doctrine to the supplemental complaint filed in this case.
CONCLUSION
For the reasons stated, the government’s motion to dismiss the complaint in part is DENIED. The government shall file its answer to Idaho Power’s Second Amended Complaint on or before June 22, 2012.
It is so ORDERED.
. The recitations that follow do not constitute findings of fact by the court but rather are taken from the pleadings and from an adjudicatory decision by an Idaho court that is susceptible to judicial notice. Unless otherwise noted, however, the factual circumstances appear to be undisputed.
. The dam was to be constructed as part of the Minidoka Project to reclaim federal public lands. 1923 Contract art. 2.
. The court granted leave for Idaho Power to file a second amended complaint on February 13, 2012, see Order of Feb. 13, 2012, ECF No. 36, after the government advised that it did not oppose the filing, see Def.'s Resp. to Pl.’s Mot. to Amend Its Compl., Feb. 10, 2012, ECF No. 35. The government then noted that the time period covered by the new complaint would be placed in dispute by way of a motion for partial dismissal. Id.
Although styled a "second amended complaint,” Idaho Power’s pleading is more properly regarded as a supplemental complaint, as discussed infra, note 4, and the court has treated it as such.
. Idaho Power’s “second amended complaint,” ”set[s] out [a] transaction, occurrence, or event that happened after the date of the pleading to be supplemented,” RCFC 15(d), namely the decision of the SRBA, and consequently it should be classified as a supplemental complaint. See Petro-Hunt, L.L.C. v. United States, 105 Fed.Cl. 37, 44 (2012). For purposes of the government’s motion however, the distinction between an amended complaint and a supplemental complaint is not material to determining whether the new pleading relates back to the original complaint. See, e.g., Federal Deposit Ins. Corp. v. Knostman, 966 F.2d 1133, 1138 (7th Cir.1992) ("The distinction between an amended pleading and a supplemental pleading is often disregarded for purposes of relation back under Rule 15(c).” (citing 6A Charles Alan Wright et al., Federal Practice and Procedure § 1508 (2d ed.1990))); Finnerty v. RadioShack Corp., 390 Fed.Appx. 520, 527 n. 2 (6th Cir.2010) (same). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218262/ | OPINION
WILLIAMS, Judge.
This vaccine injury case comes before the Court on Respondent’s motion for review of an award of interim fees after Petitioners’ counsel withdrew from this action due to irreconcilable differences with their clients.
Respondent contests two aspects of the Special Master’s fee award — the Special Master’s authority to award interim fees where there has been neither a compensation award nor entry of judgment and the Special Master’s finding that there was a.reasonable basis for Petitioners’ claim. Based on recent Federal Circuit precedent, it is clear that the Special Master had the authority to grant interim fees here. The second issue warrants further analysis. The sole predicate for the Special Master’s conclusion that the claim had a reasonable basis was the fact that the parties had discussed settlement. In this Court’s view, the reasonableness vel non of a claim primarily depends upon the claim itself — the adequacy of the factual allegations and medical and legal theories underlying the claim — reasonableness ought not automatically be imputed to a claim by virtue of the fact that its settlement was discussed. As such, the Court upholds the Special Master’s determination that she had the authority to award interim fees but remands the matter for further proceedings on whether there was a reasonable basis for Petitioners’ claim.
Background
Petitioners Lisa Woods and Jason Ford are the parents of Cason Ford. On October 22, 2009, Cason received immunizations for influenza and the H1N1 virus from his pediatrician. On January 31, 2010, Cason sought treatment at a hospital emergency room for back pain and leg weakness. On February 24, 2010, Cason’s neurologist diagnosed him with Guillain-Barré Syndrome (“GBS”), an acute neurologic disorder of the peripheral nervous system.
On June 18, 2010, Petitioners filed a petition under the Vaccine Act on behalf of Ca-son, claiming that the flu vaccine administered on October 22, 2009, caused Cason’s GBS. Petitioners sought “[compensation] for *150their losses ... by an award of $250,000 for pain and suffering and payment of any amounts that may be determined to be reimbursed to Medicaid.” Petition ¶ 15. Petitioners were represented by Diana L. Sta-delnikas and Jennifer Anne Gore Maglio. Petitioners filed hundreds of pages of medical records, including vaccination records and documents that described Cason’s treatment for GBS, but the record contains no indication that Petitioners retained any experts. These records were filed in five separate installments, the most recent on May 17, 2011. Respondent has not yet filed her Rule 4(c) report.1
Between October, 2009 and October, 2011, activity in the case consisted almost entirely of status conferences and filings of medical records. On May 17, 2011, the Special Master issued an order directing Petitioners to “make a demand on respondent within 30 days,” and “attempt to settle the Tennessee Medicaid Lien in this case.” This deadline was later extended to August 17, 2011, and the docket indicates that Petitioners ultimately served a settlement demand on Respondent.
Beginning in September, 2011, Petitioners’ counsel began having difficulty contacting Petitioners — a situation which subsequently worsened. On October 4, 2011, Petitioners’ counsel filed a Motion for Leave to Withdraw and an Application for Attorneys’ Fees and Costs. In their Motion for Leave to Withdraw, Petitioners’ counsel cited “irreconcilable differences” between themselves and Petitioners, including an inability to reach Petitioners after at least three attempts. On October 5, 2011, the Special Master granted Petitioners’ counsel’s Motion for Leave to Withdraw. After granting the motion, the Special Master provided Petitioners with a list of attorneys admitted to practice in the Vaccine Program, but they opted to proceed pro se.
On December 16, 2011, the Special Master issued a Decision Awarding Interim Attorneys’ Fees and Costs to Former Counsel, finding that an award of interim fees was authorized because the petition was brought in good faith and there was a reasonable basis for the claim underlying the petition, citing Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed.Cir.2008). The Special Master awarded $15,859.15 to former counsel, reasoning:
In the instant action, petitioners’ case on the merits is continuing unlike the situation in Avera in which petitioners’ case was dismissed. Here, petitioners’ attorney has withdrawn. The issuance of a minor amount of fees facilitates petitioners’ attorney, who is a regular practitioner in the vaccine bar, to continue to represent petitioners in this Program. This fulfills the Federal Circuit’s concern in Avera that a competent bar be readily available to prosecute vaccine claims.
The instant action has lasted one and one-half years to date and there is no certain end because petitioners are seeking new counsel and are at present pro se. It is unknowable whether this case will proceed to settlement or be litigated and ultimately decided on entitlement, and if petitioners prevail, on damages. This is justification for an award of interim attorneys’ fees and costs at the present time.
Woods v. Sec’y of Health and Human Servs., No. 10-377V, 2011 WL 6957598, at *5-6 (Fed.Cl.Spec.Master. Dec. 16, 2011).
On December 12, 2011, the Special Master held a status conference with pro se Petitioners during which Jason Ford expressed an interest in terminating his involvement with the ease. Status Conf. Order, Dec. 13, 2011. Since that time, the Special Master has scheduled two status conferences. Petitioners did not appear for either conference, although Lisa Woods represented to the Special Master that, as of April 9, 2012, she was attempting to retain a new attorney. Since January 25, 2012, the Special Master has *151issued five orders directing Petitioners to contact her or to show cause why their ease should not be dismissed for failure to prosecute. The Special Master’s most recent order directed Petitioners to contact her by June 4, 2012.
Discussion
Standard of Review
Jurisdiction lies in this Court pursuant to 42 U.S.C. § 300aa-12(e). In reviewing a decision rendered by a special master, this Court may: (1) uphold the findings of fact and conclusions of law; (2) set aside any of the findings of fact or conclusions of law “found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” or (3) “remand the petition to the special master for further action in accordance with the court’s direction.” 42 U.S.C. § 300aa-12(e)(2)(A)-(C); see Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1277-78 (Fed.Cir.2005); Saunders v. Sec’y of Health & Human Servs., 25 F.3d 1031, 1033 (Fed.Cir.1994). Findings of fact are reviewed under the “arbitrary and capricious” standard, legal questions are reviewed under the “not in accordance with law” standard, and discretionary rulings are reviewed under the “abuse of discretion” standard. Saunders, 25 F.3d at 1033 (quoting Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 870 n. 10 (Fed.Cir.1992)); Murphy v. Sec’y of Health & Human Servs., 30 Fed.Cl. 60, 61 (1993). In order to find an abuse of discretion, this court must rule that the special master’s decision was
(1) ... clearly unreasonable, arbitrary, or fanciful; (2) ... based on an erroneous conclusion of the law; (3) ... clearly erroneous; or (4) the record contains no evidence on which the ... [special master] rationally could have based [her] decision.
Hendler v. United States, 952 F.2d 1364, 1380 (Fed.Cir.1991) (citation omitted).
The Special Master Possessed Authority to Award Interim Fees
Respondent first argues that the Vaccine Act prohibited the Special Master from awarding fees to former counsel on an interim basis. The Vaccine Act provides:
(e) Attorneys’ fees
(1) In awarding compensation on a petition filed under section 300aa-ll of this title the special master or court shall also award as part of such compensation an amount to cover—
(A) reasonable attorneys’ fees, and
(B) other costs,
incurred in any proceeding on such petition. If the judgment of the United States Court of Federal Claims on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.
42 U.S.C. § 300aa-15(e) (2011). Respondent reads this language as permitting fees only where the Special Master or Court has awarded compensation, or where the Special Master or Court has denied compensation and entered judgment. Because the Clerk of the Court of Federal Claims did not enter judgment in this case, Respondent concludes, the Special Master could not have awarded interim fees.
Respondent’s argument is foreclosed by Federal Circuit precedent. In Avera, the Federal Circuit considered a request for fees after the Court of Federal Claims had entered judgment in favor of respondent and denied the petitioner’s request for fees because “appellants only sought interim fees pending appeal, and made no showing that would justify an award of interim fees during that pendency.” 515 F.3d at 1352. In Av-era, the Government argued that the Vaccine Act did not permit an award of interim fees because the Act provides for an award of fees only after an election to accept or reject compensation under Section 300aa-21(a), and such an election can be made only after the entry of judgment. Id. at 1351. The Federal Circuit rejected this argument, stating that “[t]here is nothing in the Vaccine Act that prohibits the award of interim fees,” and that the Supreme Court had interpreted sim*152ilar fee-shifting statutes to permit such fees. Id. at 1351-52. In addition, the Federal Circuit noted:
[O]ne of the underlying purposes of the Vaccine Act was to ensure that vaccine injury claimants have readily available a competent bar to prosecute their claims. Denying interim fee awards would clearly make it more difficult for claimants to secure competent counsel because delaying payments decreases the effective value of awards.
Id. at 1351 (citing Saunders, 25 F.3d at 1035).
More recently in Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (Fed.Cir.2010), the Federal Circuit expressly reaffirmed its holding in Avera that the Vaccine Act permits interim fees and rejected the identical argument that Respondent is reiterating here. The Federal Circuit stated in Shaw:
In Avera, we held that the Vaccine Act permits the award of interim fees and costs, rejecting the government’s argument that a fee award is only permissible after judgment under § 300aa-15. Avera, 515 F.3d at 1350-51. As this court explained, there is even more reason to award interim fees in vaccine eases because there is no prevailing party requirement. Id. at 1352.
609 F.3d at 1374-75.
As the court in McKellar v. Secretary of Health and Human Services, 101 Fed.Cl. 297, 301 (2011), recognized, “under Shaw ... it is clear that the Act permits interim fees even before an entitlement decision.” Respondent’s continuing recitation of its argument to the contrary is baseless. Respondent suggests that the allowance of interim fees is limited to situations after the Court has entered judgment, but this gloss contradicts the clear language in Shaw rejecting the argument that interim fees may only be awarded after judgment. Further, in Avera, the Federal Circuit reasoned that interim fees were permissible in part because “delaying payments decreases the effective value of awards,” and “[a] special master can often determine at an early stage of the proceedings whether a claim was brought in good faith and with a reasonable basis.” 515 F.3d at 1352. The Avera Court’s recognition that the predicate for a fee award can be determined early in the proceedings underscores the notion that interim fees can be awarded before judgment is entered. See also Cloer v. Sec’y of Health & Human Servs., 675 F.3d 1358, 1361-62 (Fed.Cir.2012) (holding that the Vaccine Act permits fee awards in connection with a time-barred claim and citing Avera for the proposition that “Congress made clear that denying interim attorneys’ fees under the Vaccine Act is contrary to an underlying purpose of the Vaccine Act”).
Requisites For An Award of Interim Fees: Good Faith and Reasonable Basis
Under the Vaccine Act, a special master or the Court of Federal Claims may award fees if “the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa-15(e)(1). Here, Respondent does not challenge Petitioners’ good faith, but claims that former counsel has not demonstrated a reasonable basis for Petitioners’ claim.
Reasonable Basis for a Vaccine Act Claim
The sole basis for the Special Master’s conclusion that Petitioners had a reasonable basis for their claim was that the parties had at times engaged in settlement negotiations. The Special Master cited no allegations of injury or causation, no medical records, and no legal authority in determining that Petitioners’ claim had a reasonable basis. As such, the Special Master erred in failing to sufficiently analyze whether there was a reasonable basis for Petitioners’ claim.
Settlement negotiations, standing alone, cannot equate to a finding that there was a reasonable basis for Petitioners’ claim. Cf. Pierce v. Underwood, 487 U.S. 552, 568, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (rejecting an unfavorable settlement agreement as evidence that the Government’s position lacked reasonable basis because the settlement’s terms, “without inquiry into the reasons for settlement, cannot conclusively establish the weakness of the Government’s position” and noting that “to hold otherwise *153would not only distort the truth but penalize and thereby discourage useful settlements”); Cheyenne River Sioux Tribe v. United States, 806 F.2d 1046, 1050 (Fed.Cir.1986) (noting that the inadmissibility of settlement offers to show liability under the Federal Rules of Evidence “reflects the reality that permitting consideration of settlement offers as reflecting an admission of liability in the amount of the offer would seriously discourage parties from discussing settlement or making settlement offers”).
A conclusion that engaging in negotiations in Vaccine Act eases automatically establishes the reasonable basis of a petitioner’s claim could create an incentive for respondent to refrain from tendering or entertaining settlement offers, in contravention of sound policy. “The law ... favors settlement of litigation which reduces the burden on courts and counsel and mitigates the antagonism and hostility that protracted litigation leading to judgment may cause.” Cheyenne River Sioux Tribe, 806 F.2d at 1050. The policy of encouraging settlement is paramount in the context of the Vaccine Act, which Congress designed to “provide for a less-adversarial, expeditious, and informal proceeding for the resolution of petitions.” 42 U.S.C. § 300aa-12(d)(2)(A) (2011). A rule equating the occurrence of settlement negotiations with a finding of “reasonable basis” for vaccine claims would thwart this policy by discouraging settlement negotiations.
Given that engaging in settlement negotiations does not in and of itself establish the reasonable basis of a claim, the Special Master must analyze the claim to assess reasonableness. The burden is on the petitioner to affirmatively demonstrate a reasonable basis. McKellar, 101 Fed.Cl. at 305. Neither the Federal Circuit nor this Court has had occasion to define the meaning of “reasonable basis” for purposes of fee awards under the Vaccine Act. However, the Federal Circuit has ruled that for a claim to have a reasonable basis, it must, at a minimum, be supported by more than “unsupported speculation” by an expert. Perreira v. Sec’y of Health and Human Servs., 33 F.3d 1375, 1377 (Fed.Cir.1994). In Perreira, the Federal Circuit upheld a decision that a claim lacked a reasonable basis because the sole expert opinion purporting to establish causation was “unsupported by either medical literature or studies, and therefore, of no value.” Id. In so ruling, the Court clarified that once the petitioners reviewed the expert opinion on which their case depended, they no longer had a reasonable basis for claiming causation in fact because the medical opinion was not grounded in medical literature or studies. The Federal Circuit explained:
Congress must not have intended that every claimant, whether being compensated or not under the Vaccine Act, collect attorney fees and costs by merely having an expert state an unsupported opinion- that the vaccine was the cause in-fact of the injury. The words of the statute require more. Attorney fees and costs may be awarded despite losing on the underlying claim if the petition is brought in good faith and there is a reasonable basis for the claim. 42 U.S.C. § 300aa-15(e)(1) (1988). However, when the reasonable basis that may have been sufficient to bring the claim ceases to exist, it cannot be said that the claim is maintained in good faith.
Id. at 1377.
Similarly, “expert testimony in and of itself does not determine reasonableness” where that testimony is uncorroborated or contradicted by other facts. Murphy, 30 Fed.Cl. at 62. According to the docket of the Special Master’s proceedings in this ease, there has apparently not been any expert testimony in this matter — making the Special Master’s task in assessing the reasonable basis of this claim more difficult. However, the Special Master does have the benefit of the petition itself and medical records. See id. (finding that petitioners had not shown a reasonable basis for their claims where “medical and other written records contradict[ed] the claims brought forth in the petition”). Further, Respondent has noted that she had yet to file her Rule 4(c) report with her position and medical and legal analysis of the claim. Although not required to do so, the Special Master may request this report to aid in her determination of whether the claim has a reasonable basis.
*154
The “Circumstances” Necessary for an Interim Fee Award
Respondent also claims that “[u]nder Av-era, interim fees and costs should only be available if petitioners can affirmatively demonstrate some extenuating circumstances to justify the award,” and asserts that the Special Master misapplied this standard. Respondent’s Memo, in Support of Mot’n for Review at 10. Respondent overstates the burden imposed by Avera with regard to establishing the requisite circumstances for awarding interim fees. The court in Avera concluded that the petitioners were not entitled to fees because “[t]he amount of the fees here was not substantial; appellants had not employed any experts; and there was only a short delay in the award pending the appeal.” 515 F.3d at 1352. Along these same lines, in generally discussing the availability of interim fees under the Vaccine Act, the Shaw Court stated that “[wjhere the claimant establishes that the cost of litigation has imposed an undue hardship and that there exists a good faith basis for the claim, it is proper for the special master to award interim attorneys’ fees.” 609 F.3d at 1375. However, the Federal Circuit in Avera and Shaw did not enunciate the universe of litigation circumstances which would warrant an award of interim attorney’s fees. See McKellar, 101 Fed.Cl. at 301 (recognizing that the Av-era factors warranting interim fees included but were not limited to “protracted proceedings, costly experts or undue hardship”).
Here, Petitioners’ counsel are no longer counsel of record, having been granted leave to withdraw due to irreconcilable differences with their clients. The record suggests that counsel vigorously pursued this claim to the extent they could — up until they became unable to communicate with their clients. While the amount of the fees, $15,859.15, is not substantial, this is the totality of the fees, and there is no reason to force counsel, who have ended their representation, to delay receiving fees indefinitely until the matter is ultimately resolved. The Special Master articulated a valid concern that it was “unknowable” whether the case would be settled, or extensively litigated to the point of determining damages. The Special Master reasonably concluded that delaying a fee award to counsel who had ended their representation for an indeterminable time until the ease was resolved sufficed to constitute the type of “circumstances” to warrant an interim fee award. Thus, should the Special Master conclude that there was a reasonable basis for the claim, the circumstances of this litigation would not defeat an interim fee award.
Conclusion
The Court upholds the Special Master’s determinations that a special master may award interim fees under the Vaccine Act and that Petitioners met the requisite “circumstances” for a fee award articulated in Avera. However, the Court remands the matter to the Special Master to determine whether Petitioners’ claim had a reasonable basis. The Special Master should consider whether Petitioners alleged a claim that had a reasonable basis at the time of filing the petition and, if so, whether the claim continued to have a reasonable basis as the record was developed. Perreira, 33 F.3d at 1377.
. Under RCPC Vaccine Rule 4(c)(1), Respondent is to file a report "setting forth a full and complete statement of [her] position as to why an award should or should not be granted." Further, Rule 4(c)(2) requires that Respondent's report "contain respondent’s medical analysis of petitioner's claims and ... present any legal arguments respondent may have in opposition to the petition.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218263/ | OPINION
BASKIR, Judge.
Plaintiff, Papillon Arways (Papillon), seeks a refund of $900 it paid in Federal Ar Transportation Excise Tax pursuant to 26 U.S.C. § 4261, and to abate the remaining $7,741,569 the Internal Revenue Service (IRS) asserts it owes. It claims exemption from the excise tax as an air taxi under 26 U.S.C. § 4281.
Pursuant to the statute, Papillon is ineligible for the exemption if the carrier operated on an “established line” during the disputed period. The parties filed cross-motions for summary judgment pursuant to Rule 56 of *156the Rules of the United States Court of Federal Claims (RCFC). For the reasons stated below, we conclude that the plaintiff operated on an established line and was therefore not exempt from the Air Transportation Excise Tax.
BACKGROUND
I. Factual Overview
The following facts are taken from the parties’ filings. They are undisputed except where noted. Papillon is an aerial sightseeing company based in Arizona that primarily services international tourists interested in helicopter tours over the Grand Canyon area. It markets flights designed to showcase scenic views of the canyon as well as areas near Las Vegas, the Hoover Dam and portions of the Hualapai and Havasupai Indian Reservations. In connection with its flights, Papillon also offers tourist-related services such as horseback riding, hiking, picnics and river rafting bundled into travel packages. In total, Papillon promotes 46 of these packages as part of a “reliable product line” in order to simplify sales and marketing.
The majority of Papillon’s tour sales are made through third-party vendors. Papillon employs a network of approximately 1,500 to 2,000 different vendors, including travel agencies, concierge desks, and online travel sites which are authorized to sell its tours directly to consumers. Papillon provides these vendors with brochures listing suggested retail rates and profit margins for its various products. These prices can be adjusted by the vendors to achieve their desired profit margin. The brochures also describe Papillon’s tours and allow the vendors and customers to make the purchasing decision before contacting Papillon to finalize the sale and make the reservation. Promoting a consistent product line allows this process to run more smoothly because it allows vendors to sell tours without first verifying that Pa-pillon will be able to accommodate the consumer’s choice of route and connected services.
Papillon is cautious when it comes to expanding this product line. The creation of a new tour requires consideration of the price, insurance, logistics, reliability, popularity, and safety of any potential new route. Because of the complexity of this process, Papil-lon’s packages include core tours which have not changed over the years. The basic tour options have been in place since 1990.
In addition to its tour business, Papillon also engages in specialized charter work, government contracting, and utility flights. These types of assignments differ from the “everyday products” and are handled through a separate Utility Division within Papillon. Though the-parties agree that the Utility Division flights are not taxable under the Air Transportation Excise Tax, the fact that some non-standard charters are referred to this branch is notable.
Papillon is the largest helicopter company of its kind in the world. During the disputed period, its air tour business brought in a total revenue of $78,335,577. It has a fleet of over forty helicopters and 227 employees. Over the course of its business, Papillon has carried more than 4.5 million people over the Grand Canyon.
In order to accommodate this volume of customers, Papillon utilizes a computer generated “source board.” The source board sets forth the most profitable schedule of flights Papillon can send out on any given day. Though the source board is not fixed, Papillon uses this information to coordinate its fleet and determine when to schedule customers’ departure times. Once a customer has decided on a product, they call Papil-lon to request a reservation. However, this request is for an approximate time of departure; the final time is set by Papillon after consulting the source board.
Customers do not typically pay Papillon for their flights directly. Instead, customers pay the vendor and are given a flight voucher to redeem at the terminal and Papillon bills the vendor based on its flight record. These authorized vendors consummate the initial sale of transportation. During a typical day, Papillon may fly on average 113 flights.
II. Procedural History
On October 10, 2007, the IRS issued an examination report asserting that Papillon *157owed $6,452,094.00 in back taxes pursuant to 26 U.S.C. § 4261 and $1,290,375 in negligence penalties under 26 U.S.C. § 6662 for the period between July 1, 2003 and September 30, 2005. The report found that Papillon had been operating its flights on an “established line” and was therefore responsible for the Air Transportation Excise Tax instead of the Aviation Fuel Excise Tax it had been paying pursuant to 26 U.S.C. § 4041(e). Can’iers are only responsible for one of these two taxes, so the IRS deducted the amount paid in Aviation Fuel Excise Tax from the outstanding deficit it maintained Papillon owed in Air Transportation Excise Tax and assessed $6,452,094 in back taxes.
Papillon contested this characterization of their business and the accompanying increased tax rate and appealed the preliminary assessment to the IRS Appeals Office on November 9, 2007. On September 4, 2008, the Appeals Office notified Papillon that a final assessment of the Air Transportation Excise Tax was pending. Subsequently, Papillon attempted to pay the $900 under protest but failed to receive confirmation that the IRS had received its payment. It was eventually successful in making payment on December 30, 2008. On January 9, 2009, Papillon resubmitted a Form 8849 Claim for Refund which was denied on May 6, 2009.
In response, the plaintiff filed its complaint on May 11, 2009. On November 9, 2009 defendant filed an answer as well as a counterclaim for the taxes it asserts continue to be outstanding. This counterclaim was answered on November 25, 2009, and after a series of status conferences, plaintiff filed a motion for summary judgment on April 11, 2010. On July 27, 2011, the defendant filed a cross-motion and response to plaintiffs motion for summary judgment. Oral Argument was held on January 26,2012.
DISCUSSION
I. Applicable Legal Standards
This court possesses jurisdiction over suits to obtain a refund of federal taxes pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000). See also 28 U.S.C. § 1346(a)(1) (2000). As a jurisdictional prerequisite, the taxpayer must have paid the taxes in full and filed a refund claim with the IRS that complied with the pertinent laws and regulations. Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993); 26 U.S.C. § 7422(a) (2000).
Given that the plaintiffs have exhausted all of the avenues available to them before the IRS, our review of the matter is de novo. George E. Warren Corp. v. United States, 141 F.Supp. 935, 940 (Ct.Cl.1956). Plaintiffs bear the burden of proving that the tax assessed was incorrect. Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623 (1935). They must also establish the amounts which they are entitled to recover. United States v. Janis, 428 U.S. 433, 440, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).
We are currently resolving cross-motions for summary judgment. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cincom Sys., Inc. v. United States, 37 Fed.Cl. 663, 670 (1997). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
As the Consolidated Statement of Uncon-troverted Facts reflects, there are no material facts in dispute in this case. The parties agree that their motions turn on a legal question: whether Papillon was operated on an “established line” within the meaning of § 4281.
II. Qualification for the Air Transportation Excise Tax’s Exemption
The Air Transportation Excise Tax under 26 U.S.C. § 4261 taxes segments of domestic air travel. It places the responsibility to collect these taxes on the travel providers if the tax is not collected by the party making the initial sale. However, providers are exempt from the tax if them aircraft weigh in at 6,000 pounds or less and they are not “operated on an established line.” § 4281. The meaning of the term “established line” is the primary issue in this *158case. This ease and Sundance Helicopters, Inc. v. United States, 104 Fed.Cl. 1 (2012) are the only cases in this Court to address this issue.
Our starting point is the applicable Treasury Regulation, which states:
[the] term “operated on an established line” means operated with some degree of regularity between definite points. It does not necessarily mean that strict regularity of schedule is maintained; that the full run is always made; that a particular route is followed; or that intermediate stops are restricted. The term implies that the person rendering the service maintains and exercises control over the direction, route, time, number of passengers carried, etc.
Treas. Reg. § 49.4263-5(c) (emphasis added). This provides us with three factors to consider; whether Papillon’s business was (i) operated with some degree of regularity, (ii) between definite points, and (iii) with the requisite control retained by Papillon. We address each factor, in turn.
A. Some Degree of Regularity
The first factor we must consider is whether the operator conducted its flights with “some degree of regularity.” Treas. Reg. § 49.4263-5(e). We look to the positions the parties have advocated as well as the analysis other courts have undertaken for guidance in interpreting this phrase.
Papillon’s position is that a schedule is strictly required for an operator to have conducted business with “some degree of regularity.” Under this view, unless a provider maintains a fixed schedule, no volume of flights or customers could ever rise to the level of operating with some degree of regularity. In support of this theory, Papillon points to Revenue Ruling 66-301, which provides that “[a] schedule other than customer demands is necessary if the operation is to be conducted with ‘some degree of regularity.’ ” Rev.Rul. 66-301.
However, Revenue Ruling 66-301 dealt with the unusual case of a helicopter company that operated 10 days out of the year in conjunction with a local fair. The provider was a “walk-up business” and did not permit advance booking. Id. The facts considered in the Revenue Ruling are distinguishable from those the instant case and, as a revenue ruling, its persuasive value is limited. Ultimately, it is the treatment other courts have given this issue when faced with similar facts that we find most persuasive.
In Lake Mead Air, Inc. v. United States, 991 F.Supp. 1209 (D.Nev.1997), a Nevada District Court held a fixed-wing airplane service that flew standardized, twice-daily scenic tours over the Grand Canyon was operated with “some degree of regularity” and ultimately on an established line. The court reached this conclusion by contrasting that case with a revenue ruling addressing an airline contracted to deliver mail for the United States Postal Service. Rev.Rul. 72-617. That ruling applied a “but for” test and determined that the airline was not operated on an established line because it would not have flown that particular route “but for” the contract with the Postal Service. Id. Conversely, the court determined Lake Mead was operated with some degree of regularity because the airline flew over the Grand Canyon regularly and would still have flown the route “but for” a single customer’s business. Lake Mead, 991 F.Supp. at 1213. Although plaintiff correctly points out that the operator in Lake Mead flew at more regular intervals, the deciding inquiry is the court’s “but for” analysis. Id. at 1210 (describing the limited choices customers had between the morning, afternoon and mixed land and air tours).
The District Court also observed that the “crux” of the regularity factor is “that the public can rely on the transportation.” We agree that this consideration is central to the regularity factor. If we adopt a strict, fixed-schedule requirement as Papillon requests, no amount of volume or activity level by a carrier could ever constitute an established line. Even if a provider dispatched flights each day leaving every minute, on the minute, a court would be required to find that customers could not have relied on that provider for transportation under such a test. We adopt the district court’s analysis on this point and therefore must reject the plaintiffs argument.
*159Similarly, in Temsco Helicopters Inc. v. United States, 409 Fed.Appx. 64 (2010), the Ninth Circuit Court of Appeals found in an unpublished opinion that scenic helicopter tours in Alaska were operated with some degree of regularity and on an established line. The court came to this finding despite the fact that Temsco did not maintain a schedule, noting that ‘“strict regularity of schedule’ is not required.” Id. at 66. Instead of requiring a schedule, the court looked to the reality of situation — that the provider in Temsco was operating regularly and could be relied upon by consumers. Id. (disclaiming a schedule requirement in lieu of examining the operator’s actual practices).
In Schuman Aviation Co. v. United States, the District Court of Hawaii found that a helicopter tourism provider operating without a schedule still met the “some degree of regularity” requirement. Schuman Aviation v. United States, 816 F.Supp.2d 941 (D.Hawai’i 2011). The court expounded that “[i]n keeping with relevant authority, this court looks at the actual practice of the transporter to determine whether the transportation was operated with some degree of regularity.” Id. at 954 (emphasis added). The court continued:
The court agrees that operating a substantial number of flights does not, standing alone, establish that the flights are operated regularly such that they constitute an established line. A popular taxi service might make many trips on a given day. What the regulation gives significance to is rather the degree of regularity between definite points.
Id. This approach reads the “some degree of regularity” factor in its appropriate context. The relevant consideration is whether it was the actual practice of the transportation provider to operate with some degree of regularity between definite points. A schedule is not required.
The Court in Sundance Helicopters agreed that “if a plaintiffs tours operate in a dis-cernable pattern, amounting to a level such that the public could rely on for transportation, plaintiff satisfies the regularity element.” Sundance Helicopters, 104 Fed.Cl. at 8. It concluded that plaintiffs helicopter tour service. satisfied this requirement because there was a “discernable pattern of the same tours being flown at approximately the same time every day” and “a potential customer could have said at the time with a high degree of certainty that plaintiff will fly a Grand Canyon Picnic tour mid-morning and a Sunset tour mid-afternoon.” Id.
We also decline to adopt a strict schedule requirement. The reasoning set out in these eases provides a common-sense interpretation of the “some degree of regularity” factor. If instead we enforced a strict schedule requirement, it would run aground of the plain language meaning of Treas. Reg. § 49.4263-5(c). It would require us to read the phrase “some degree of regularity” to mean “scheduled.” However, this is at odds with the regulation’s deliberately forgiving choice of words. If the Treasury regulation’s drafters had intended to implement a scheduling requirement, they could have employed explicit language to do so.
The next logical step is to examine Papillon’s actual practices and whether customers could rely on Papillon’s flights. Papillon flew an average of 113 flights per day during the disputed period. Transcript of Oral Argument (“Tr.”) at 18, 21. Although Plaintiffs counsel took issue with this approach, arguing that this court should not consider the average number of flights, a review of the record reveals that Papillon operated a sizable number of flights per day and never failed to operate. Def. Ex. 18. Also, it is worth noting that Papillon is the largest helicopter company of its kind in the world and has a fleet of over 40 helicopters, most of which are dedicated to its charter operations. CSUF ¶ 7. In fact, the record reveals that the magnitude of Papillon’s operation dwarfs those of the operators in Lake Mead, Temsco and Schuman, all of which were found to operate on an established line and with some degree of regularity. Indeed, the Schuman court found an airline operating “more than six times each day” met this burden. Schuman, 816 F.Supp.2d at 954. We also find it difficult to see how a customer could not rely on Papillon given this volume of flights.
In order to accommodate this volume, Pa-pillon employed a “source board.” The *160source board was a reference tool for Papil-lon to determine the most profitable potential flight times. It was formulated each day-based on historical data of consumer demand, weather and other considerations. Although as Plaintiff points out the schedule was not fixed, the source board was consulted during the back and forth of the booking process. That process, described as a “dialogue” by Papillon’s employee, involves dickering over acceptable times and juggling the various passengers and flights. Def. Ex. 22 at 313-317. Customers do not simply call Papillon and inform them of their departure time. Instead, Papillon employs the source board as a tool to determine whether it can reach a compromise with the aim of fitting customers into the optimum time slots.
The source board is designed not just to steer customers into these time slots but to ensure Papillon has available helicopters at these times. For example, sunset trips are often in high demand so Papillon attempts to schedule its helicopters so they will be available at that time. Papillon does this maneuvering so that it will be able to provide a reliable stream of flights during its high demand time periods. Thus, employing the source board as a scheduling tool results in something resembling regularly scheduled service which customers can rely on for these high demand periods. This pattern of flights bears out the government’s theory that Pa-pillon’s actual practices are operated with some degree of regularity.
However, Papillon argues that its flight certificate proves its actual practices cannot satisfy the “some degree of regularity” factor. Papillon operates pursuant to a certificate issued by the Federal Aviation Authority (“FAA”) under Part 135 of its regulations. This certificate only authorizes Papillon to undertake unscheduled flights with one exception. That scheduled flight is flown once daily between the Grand Canyon Airport and the Havasupai Indian Reservation under their A018 certifícate and is not at issue here. In order to conduct additional scheduled flights, a commuter certification under Part 121 is required by the FAA. Papillon contends that because their Part 135 “air taxi” certificate does not allow them to conduct such scheduled flights, they could not have been operating with “some degree of regularity” nor could they have been operating on an established line during the disputed period.
Ultimately though, it is the Treasury’s, not the FAA’s, classification that decides whether Papillon was being operated on an established line. While the FAA’s determination regarding the degree of regularity is relevant evidence, the applicable Treasury Regulation provides us with a framework for making this determination. We are tasked with applying these elements to Papillon’s actions during the disputed period, not merely accepting the FAA’s classification.
Additionally, it is not clear that the FAA’s prohibition on scheduled operations impacts whether Papillon was operated with “some degree of regularity” or on an established line. Papillon has not made any showing of a nexus or overlap between these two classifications. In order for Papillon’s FAA certificate to be dispositive, operation on an established line must require the strict-seheduling the FAA certificate prohibits. Because we decline to adopt a requirement that a strict-schedule is necessary for a provider to have been operating on an established line, evidence that Papillon could not have been operating under a strict-sehedule, like their FAA certificate, loses its luster. Papillon’s air certificate is a considerable factor in Papillon’s favor but does not decide the issue.
Papillon facilitates a high volume of flights each day. This volume, combined with Papil-lon’s use of the source board, results in a service customers can rely upon. Considered in light of the low number of flights other courts have found can constitute “some degree of regularity,” we are persuaded that Papillon operated on an established line.
B. Between Definite Points
Papillon makes a plain meaning argument with respect to the clause “between definite points.” In its view, the use of the terms “between” and “points” precludes taxation under 26 U.S.C. § 4261 because the flights depart and land at the same point — Papil-lon’s helipads. It stresses that our reading should put emphasis on these two words and *161we should interpret the phrase as essentially meaning “between two separate points.”
Papillon also criticizes the reliance — by Defendant as well as the various district courts which have reviewed this issue — on Treasury Regulation § 49.4261-1(c). Papil-lon points out that section 49.4261-1(c) applies to general tax transportation issues. It contends that this provision has no application to analysis of the “between definite points” test. It also draws attention to the wording of section 49.4261-1(c), which it says directly contradicts the “between definite points” language of section 49.4263-5:
It is not necessary that the transportation be between two definite points. If not otherwise exempt, a payment for continuous transportation beginning and ending at the same point is subject to the tax.
Treas. Reg. § 49.4261-1(c). Papillon argues that it would be illogical to use section 49.4261-1(c) to interpret this clause instead of the more specific regulation for small aircraft in section 49.4263-5. Without reaching this question, we find that a reading of “between definite points,” supports the idea that flights departing and landing at the same or close to identical points can satisfy the requirement.
An examination of the statutory history of the language “between definite points” is particularly revealing. The phrase originated in the tax exemption for conventional taxi cabs. Internal Revenue Code of 1939, § 3469(a) (26 U.S.C. § 1940 ed. Supp. I) (“IRC” or “Code”). Contemporaneous House and Senate committee reports referred to the purpose of the air taxi exemption as leveling the playing field between the two types of transportation. These reports stated the purpose of the new exemption was “[t]o provide equality of treatment for the two types of taxi transportation and to remove an unwarranted burden on this new, small industry.” H.R.Rep. No. 85-481, at 48-49 (1957). It was with knowledge of this existing taxi cab exemption that Congress chose to employ the “between definite points” phrase in the air taxi exemption. As Temsco noted, “Congress is presumed to have known of case law, regulations, and rulings construing the prior statute and to have intended § 4281 to be construed in the same manner.” Temsco, 409 Fed.Appx. at 66.
With this in mind, the meaning of the “between definite points” requirement becomes much clearer. A conventional taxi cab has, at most, one definite point — the location it picks up its customer. As the customer engages the cab, its destination — the second point — generally remains indefinite and unknown. A Ninth Circuit Court of Appeals ease, Gray Line Co. v. Granquist, bears this understanding out. Gray Line Go. v. Granquist, 237 F.2d 390 (9th Cir.1956). In Gray Line, the court found a limousine service was operated on an established line because it transported people between two designated points — Portland and two of its airports. Without an indefinite destination, even though Gray Line was taxiing people back and forth, the court found it was not eligible for the taxi cab exemption. When an operator is transporting customers between two known or definite points the nature of their business is closer to bussing than taxiing.
Placed in historical context, the term “between definite points” is meant to ensure providers offering transportation between definite points are not exempt from the tax. The taxi cab exemption likely never considered the situation in which a taxi would not have multiple points, for example, taking the customer on a loop and returning to its point of origination. If we accept Plaintiffs conclusion, an established line operator, such as Gray Line, might avoid taxation by merely driving a loop. It would be bizarre to exempt an otherwise taxable operator under taxi status because they drive or fly in a loop instead of from point A to B. Exempting flights for this reason would create a tax loophole.
A more logical reading of this phrase places the emphasis on the term “definite” and allows any operator between a definite point(s) to be operating on an established line. All four of the other courts which have addressed this issue unanimously conclude that flights of this type can be operated on an established line. For the reasons cited in those opinions and the basis discussed above, we conclude that Papillon was operated “be*162tween definite points” within the meaning of Treasury Regulation § 49.4263-5(e).
C. Operated with the Required Degree of Control
The Treasury Regulation compels us to consider whether “the person rendering the service maintains and exercises control over the direction, route, time, number of passengers carried, etc.” to determine if a provider operates on an established line. Treas. Reg. § 49.4263-5(c). The Lake Mead court found a refusal to fly over a portion of the Grand Canyon showed that Lake Mead had not ceded the “absolute control” required by the exemption. Lake Mead, 991 F.Supp. at 1212-1213. That court took the position that reserving any significant control over the aircraft is sufficient for the regulation. A similar standard was implied in Temsco:
Contrary to Taxpayer’s contention, being contracted to provide particular tours does not preclude Taxpayer from satisfying the control element. Taxpayer still decides what tours to offer, when to schedule flights, the route to take, and where to land. It also decides the maximum number of passengers allowed and whether to cancel a flight for insufficient sales.
Temsco, 409 Fed.Appx. at 67. All of the factors discussed in Temsco are present in this case. The Schuman court also made a finding of control despite the fact that the provider allowed for midair route adjustments. The retention of any meaningful degree of control is sufficient to satisfy this factor.
Papillon exercises a great deal of control over how its flights are conducted. Its “off the shelf’ sales approach results in tours that are carefully vetted and planned. Def. Ex. 27 Langness at 391-393. When customers seek to deviate from these set tours they are referred to the Utility Division. Def. Ex. 32 Wuster at 439-440. Papillon maintains control over the distribution and number of passengers on each flight. Papillon decides when the flights will take off, notifying customers of their departure time 24 hours in advance. Def. Ex. 13 Graff at 313-315; Def. Ex. 27 Langness at 385. In short, Papillon reserves the same right of refusal Lake Mead found sufficient for control because it does not cede absolute control to the customer. Instead of accepting customer requests, they work with customers through a dialogue to negotiate compromises both parties find acceptable. We find Papillon retains the requisite amount of control.
In sum, to exclude Papillon from the § 4281 exemption the Treasury Regulation’s factors must point toward a finding that it operated on an established line. After examining the record, we determine that all three of these factors indicate Papillon was operated on an established line during the disputed period. The Court in Sundance Helicopters came to a similar conclusion that Schuman, Lake Mead, and Temsco correctly interpreted the established line exemption in their examination of the regularity, “between definite points,” and control requirements. Sundance Helicopters, 104 Fed.Cl. at 7. Consequently, Papillon was not eligible for the exemption.
III. Plaintiff’s Statutory Argument on the Exemption
Papillon argues that the government’s position in this ease will essentially read the § 4281 exemption out of the statute. They claim that adopting this reading creates an impossibly high barrier to attaining the air taxi exemption. In their words, “an on demand ‘air taxi’ cannot simply travel the skies looking for fares (the days of Jetsons-like travel are still science fiction).” Pl. Res. at 19.
However, this argument ignores the relevance of Papillon’s Utility Division. When customers request flights that deviate significantly from the “everyday products” Papillon offers, they are referred to the Utility Division. Def. Ex. 30 at E-415. These flights differ from the standard product line and more closely resemble the on-demand charters Treasury Regulation § 49.4263-5(c) contemplates. See CSUF ¶ 73. This division, which both parties agree is not taxable, rebuts Papillon’s argument because it provides an exempt group of flights without requiring the operator to “travel the skies looking for fares.” The government’s interpretation of Treasury Regulation § 49.4263-5(c) puts *163forth a three factor framework that leaves ample room to find the exemption short of the Jetsons’ circumstances. Papillon’s Utility Division, which does not operate with some degree of regularity or between definite points, bears this out.
IV. Responsibility for Collecting the Tax
Finally, Papillon argues that even if it was not eligible for exemption under § 4281, and therefore subject to the tax, it was not responsible for the tax’s collection. It contends that it was only secondarily liable for the tax and the government did not discharge its obligation to seek recompense from the parties with primary liability. We look to the tax and its recent legislative history for guidance.
The Air Transportation Excise Tax is one of a group of excise taxes imposed under 26 U.S.C.A. § 4261. These taxes are assessed to the person making the payment subject to the tax. Here, this is the customer purchasing Papillon’s flights. The provider of the transportation is then required to collect and remit these taxes to the government.
Formerly, under § 4291, transportation providers were only indirectly liable for the tax through a provision assessing them a penalty of 100% of the taxes they failed to collect. In 1997, however, Congress amended § 4263(e) to create direct liability. That provision now states:
(c) Payment of Tax. — Where any tax imposed by section 4261 is not paid at the time payment for transportation is made, then, under regulations prescribed by the Secretary, to the extent such tax is not collected under any other provision of this subchapter, such tax shall be paid by the carrier providing the initial segment of such transportation which begins or ends in the United States.
§ 4263(e) (emphasis added). A straightforward reading of this amendment imposes liability for collecting and remitting the tax on carriers if the initial seller fails to collect it.
Papillon points to Senate and House reports that refer to this added liability as “secondary.” They argue Congress employed this term as a legal term of art, requiring the IRS to first pursue the primarily liable party. Accordingly, they argue that the IRS could not turn to Papillon without having first attempted collect the tax from the vendors who made the initial sales.
However, despite the use of the term secondary liability in the aforementioned reports, ultimately the meaning of § 4263(c) is clear and unambiguous. The provision imposes liability on air carriers “[wjhere any tax imposed by section 4261 is not paid at the time payment for transportation is made.” Notably, § 4263(c)’s terms make the carrier’s liability conditional on whether the tax was collected at the time payment for transportation was made, not whether the government is unsuccessful at collecting the tax. This does not comport with the implication Papil-lon has drawn from the legislative history. Because we do not find ambiguity in the terms of § 4263(c), we decline to look past the clear, straightforward meaning of the provision. Both the Schuman and Temsco decisions support this understanding. Schuman, 816 F.Supp.2d at 957; Temsco, 409 Fed.Appx. at 67. Accordingly, we find Papil-lon does not escape liability under the theory that it is merely secondarily liable.
Plaintiff also argues that the failure to prescribe the regulations mentioned in § 4263(c) alleviates their liability. However, as the Temsco court noted, “The language of the statute and its legislative history do not establish that regulations are a precondition to applying § 4263(c).” Id. at 67.
V. Negligence Penalties
Papillon was assessed $1,290,375 in negligence penalties pursuant to 26 U.S.C. § 6662. This section imposes a 20 percent penalty on an underpayment due to “negligence or disregard of rules or regulations.” 26 U.S.C. § 6662(b)(1).
In order to defeat this assessment, Plaintiff bears the burden of establishing a reasonable cause defense. Conway v. United States, 326 F.3d 1268, 1278 (Fed.Cir.2003). Once that defense is asserted, the court must evaluate it, considering whether there was a “lack of investigation, dependence on *164unfounded assumptions or representations, conflict of interest, or the experience and knowledge of a taxpayer.” Stobie Creek Investments, LLC v. United States, 82 Fed.Cl. 636, 710 (2008).
Papillon’s reasonable cause defense consists of an affidavit from one of its employees, Lon Halvorson. In this affidavit, Mr. Halvorson attests to several reasons Papillon did not collect and remit the tax, including: a previous audit of Papillon, an audit of a competitor, Papillon’s membership in several appropriate trade organizations and the advice of their counsel.
Despite these considerations, Papillon has not successfully carried the burden of establishing its reasonable cause defense. The Lake Mead decision in 1997 should have alerted Papillon to its potential liability. It has not presented significant proof of investigation into its potential liability. Seeking the advice of peer companies and legal counsel show some investigation but must be viewed in light of a potential conflict of interest, especially given its counsel’s involvement in Lake Mead. On balance, Papillon has no reasonable cause defense and cannot escape liability for the negligence penalties.
CONCLUSION
A review of Papillon’s operations show that it operated on an established line and cannot be exempted from the Air Transportation Excise Tax under 26 U.S.C. § 4281. Moreover, Papillon has not established sufficient inquiry to avoid penalty for its negligence in failing to pay the tax. For these reasons, we DENY Plaintiff’s Motion for Summary Judgment and GRANT Defendant’s Motion for Summary Judgment. The Clerk’s Office is directed to enter judgment for the Defendant. Parties shall bear their own costs.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218265/ | ORDER
HEWITT, Chief Judge.
Before the court, unfiled, is plaintiffs Motion to Enforce Willful Default Judgment No. 11-46C (plaintiffs Motion or Pl.’s Mot.), which was received in chambers on May 22, 2012. Plaintiffs Motion was delivered to the court unfiled because Case No. 11-46 C is closed. Plaintiffs claims in Case No. 11-46 C were dismissed on January 31, 2011 as frivolous, untimely, and not within the court’s jurisdiction. See generally Pikulin v. United States, 97 Fed.Cl. 71, aff'd, 425 Fed.Appx. 902 (Fed.Cir.2011) (unpublished).
In its order dismissing Mr. Pikulin’s claims in Case No. 11-46 C, the court stated:
Plaintiff is no stranger to litigation in the federal courts, including the [United States District Court for the] Southern District of New York, the United States District Court for the Eastern District of New York ..., and United States Court of Federal Claims_ Since filing the above-mentioned complaint against [the City University of New York] in 1995, he has initiated numerous suits in these courts, all of which arise from the same factual circumstances.
Id. at 73 (footnote omitted) (emphasis added). The court described in detail Mr. Pikulin’s history of litigation in these forums, which includes five other actions in the United States Court of Federal Claims (Court of Federal Claims). See generally id. at 74-75. It does not appear that Mi. Pikulin prevailed in any of the actions he has brought. See generally id.
To the contrary, courts have found Mr. Pikulin’s repeated filings to be vexatious, harassing and frivolous. The United States Court of Appeals for the Federal Circuit has, *179on at least one occasion, informed Mr. Pikulin that further submissions regarding matters already decided by the court would not be considered. See In re Pikulin, 143 Fed.Appx. 343 (Fed.Cir.2005) (unpublished) (“We note that this court has denied two previous mandamus petitions regarding the same matter. Future documents submitted by the petitioners will be reviewed and, if they involve the same matter, will be placed in the file without response.”). The United States Court of Appeals for the Second Circuit (Second Circuit) has, on at least one occasion, dismissed as frivolous an appeal filed by Mr. Pikulin. See Pikulin, 97 Fed.Cl. at 74 n. 6 (interpreting an entry on the docket of the United States District Court for the Eastern District of New York). The United States District Court for the Eastern District of New York has, on at least one occasion, determined that Mr. Pikulin’s repeated filings were “vexatious and harassing” and enjoined Mr. Pikulin from filing additional motions until the motions already pending before the court had been resolved. See Petreykov1 v. Int’l Fidelity Ins. Co., No. 95 CV 1428, 1997 WL 36988, at *1 (E.D.N.Y. Jan. 7, 1997). The United States District Court for the Southern District of New York has, on at least one occasion, dismissed a complaint filed by Mr. Pikulin, citing a statutory provision that provided: “ ‘The court may request an attorney to represent any such person unable to employ counsel and may dismiss the ease if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.’ ” Pikulin, 97 Fed.Cl. at 73 n. 5 (quoting 28 U.S.C. § 1915(d) (Supp. II 1997)).
Pursuant to Rule 11 of the Rules of the United States Court of Federal Claims,2 the Court of Federal Claims may sanction a party that has made frivolous or harassing filings by enjoining the party from making future filings without leave of the court. See, e.g., Hemphill v. Kimberly-Clark Corp., 374 Fed.Appx. 41, 44-46 (Fed.Cir.2010) (unpublished) (applying the standards applicable to anti-filing injunctions in the D.C. Circuit); Colida v. Nokia, Inc., 347 Fed.Appx. 568, 571 (Fed.Cir.2009) (unpublished) (stating that the Federal Circuit “applies] regional circuit law when reviewing sanctions under Rule 11” and applying the standards applicable to anti-filing injunctions in the Second Circuit).
Alternatively, the Court of Federal Claims may direct the Office of the Clerk of Court not to accept further filings by the party without an order by a judge of the court approving the filing. See, e.g., Bergman v. Dep’t of Commerce, 3 F.3d 432, 435 (Fed.Cir.1993) (directing the clerk of court not to accept filings by the plaintiff “without first referring them to a judge of the court who will determine whether the same claims have been adjudged before and if so will reject them for filing”); Rutledge v. United States, 72 Fed.Cl. 396, 403-04 (2006); Hornback v. United States, 62 Fed.Cl. 1, 6 (2004), aff'd, 405 F.3d 999 (Fed.Cir.2005).
Based on a review of plaintiffs dismissed cases in this court and in other courts and in light of plaintiffs Motion — which was submitted in an action that is closed and was addressed to the undersigned rather than the presiding judge in the action — plaintiffs actions appear to demonstrate indicia of frivolousness and harassment. Cf. Hemphill, 374 Fed.Appx. at 45 (stating that a trial court “should make findings ‘as to any pattern’ of behavior, looking to ‘both the number and content of the filings as indicia of frivolousness and harassment.’ ” (quoting In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988))). Therefore, the Office of the Clerk of Court shall return plaintiffs Motion to plaintiff.
*180The Office of the Clerk of Court shall refer all future filings by plaintiff to a judge of the court, who will determine whether the same claims have been adjudged before or whether any such filing demonstrates indicia of frivolousness and harassment. If so, the Office of the Clerk of Court will reject them for filing.
IT IS SO ORDERED.
. "Mr. Pikulin identifies another individual— Savely Petreykov — as a co-plaintiff in the body of his complaint. However, he included only his own name in the caption of the complaint and he was the only person to sign the complaint.” Pikulin v. United States, 97 Fed.Cl. 71, 72 n. 1, aff'd, 425 Fed.Appx. 902 (Fed.Cir.2011) (unpublished). The court will therefore refer to Mr. Pikulin as the "plaintiff” in Case No. 11-46 C.
. The Rules of the United States Court of Federal Claims (RCFC) generally mirror the Federal Rules of Civil Procedure (FRCP). See RCFC 2002 Rules Committee Notes 1 ("[I]nterpretation of the court's rules will be guided by case law and the Advisory Committee Notes that accompany the Federal Rules of Civil Procedure.”). RCFC 11 is substantially identical to Rule 11 of the FRCP. Compare RCFC 11, with FRCP 11. Therefore, the court relies on cases interpreting FRCP 11 as well as those interpreting RCFC 11. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218266/ | OPINION
MARGOLIS, Senior Judge.
This matter comes before the Court on defendant’s Motion to Dismiss, filed February 27, 2012. The Court finds that plaintiff has failed to state a claim on which relief can be granted because the Federal Back Pay Act does not allow an attorney to directly sue for fees and because the Federal General Schedule is not a money-mandating source with respect to plaintiff. Thus, the Court grants defendant’s motion.
I. Background
Plaintiff Dennis P. McAlister is pro se. In his Amended Complaint, he alleges that he is an attorney admitted to practice in New York and that he represented Stephen Pah-rick, a Nuclear Materials Courier for the National Nuclear Security Administration (“NNSA”), in connection with proceedings before the United States Department of Energy (“DOE”). He alleges that the NNSA and DOE determined that Patrick was no longer suitable to perform his duties under the requirements of the DOE’s Human Reliability Program (“HRP”) and indefinitely suspended Patrick without pay beginning on August 28, 2008. Plaintiff alleges that he represented Patrick at an October 15, 2008 certification review hearing before the DOE and that he prepared for the hearing over the course of five weeks .in September and October 2008. He alleges that the hearing officer recommended that Patrick be recei’ti-fied and returned to his duties and that the Deputy Secretary of Energy adopted this recommendation on September 17, 2009. Plaintiff further alleges that Patrick was later placed in pay status retroactive to September 17, 2009, and thus, that Patrick was deprived of wages from August 28, 2008 to September 17, 2009. Plaintiff alleges that on or about October 15, 2009, he filed a verified petition for reasonable attorney’s fees with the hearing officer that recommended Patrick’s recertification, but that the hearing officer dismissed the petition.
Plaintiff seeks $14,656 in attorney’s fees for more than 36 hours of work. He claims that he is entitled to relief under the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(ii), as the prevailing party, based on the NNSA and DOE’s withholding of Patrick’s wages.
Defendant, the United States, argues that the Back Pay Act alone does not mandate the payment of money damages and plaintiff has failed to identify a separate “money-mandating” source. Thus, according to defendant, either the Court lacks jurisdiction or plaintiff fails to state a claim on which relief can be granted. Aternatively, defendant argues that plaintiff has failed to state a claim on which relief can be granted because under Knight v. United States, 982 F.2d 1573 (Fed.Cir.1993), an attorney may not directly sue for fees under the Back Pay Act.
*182Plaintiff argues that 5 U.S.C. § 5332, which establishes the General Schedule of basic pay rates for federal employees, satisfies the money-mandating source requirement. Regarding defendant’s alternative argument, plaintiff argues that Knight is distinguishable. The parties have presented these arguments in their briefs and have waived oral argument.
II. Standard for Dismissal Under RCFC 12(b)(6)
Rule 12(b)(6) allows a party to move to dismiss a claim for failure to state a claim on which relief can be granted. This rule, rather than Rule 12(b)(1), which allows a party to move to dismiss for lack of subject-matter jurisdiction, provides the appropriate standard for both issues.1 In ruling on a 12(b)(6) motion, the Court must assume that all well-pled facts are true and draw all reasonable inferences in the nonmoving party’s favor. Anaheim Gardens v. United States, 444 F.3d 1309, 1314-1315 (Fed.Cir.2006).
III. Analysis
The Court addresses defendant’s alternative argument first.
1. Direct Suit Under the Back Pay Act.
The Back Pay Act provides that “[a]n employee of an agency” who is affected by an unjustified or unwarranted personnel action is entitled to withheld pay and reasonable attorney’s fees upon correction of that personnel action. 5 U.S.C. § 5596(b)(1), (b)(1)(A).2 In FDL Technologies, Inc. v. United States, the United States Court of Appeals for the Federal Circuit held that similar language in the Equal Access to Justice Act (“EAJA”) did not entitle an attorney to direct payment of fees. 967 F.2d 1578, 1580 (Fed.Cir.1992). “By its terms, [5 U.S.C. § 504(a)(1) ] states that the fee award is made to a prevailing party, not the prevailing party’s attorney-Thus, under the language of the statute, the prevailing party, and not its attorney, is entitled to receive the fee award.” Id. (emphasis in original). In Knight v. United States, the Federal Circuit extended FDL to the Back Pay Act, stating that any claim for attorney’s fees under the Act belonged to the employee, not his attorneys. 982 F.2d at 1582. “The holding in FDL is premised upon the ‘prevailing party' language of the [EAJA]. The Back Pay Act’s award of fees to ‘an employee of an agency' *183would compel the same result.” Id. at 1582 n. 12. See also Aijo v. United States, 26 Cl.Ct. 432, 434 (1992), aff'd without opinion, No. 92-5169, 92-5170, 1993 WL 133825, 1993 U.S.App. LEXIS 9800 (Fed.Cir. April 22, 1993) (“The purpose of fee awards authorized by the Back Pay Act is to make the prevailing party financially whole. As the statute requires, any fee award is made to the prevailing party and not the attorney.”) (citation omitted).
Plaintiff argues that Knight is distinguishable because there, the agency remedied the underlying pay dispute before the employee pursued redress in a federal administrative forum, the attorneys sued in the United States District Court for the District of Alaska, and the Court based its holding on several other issues besides the direct suit issue. However, these differences are irrelevant. The Knight Court stated that the Back Pay Act does not allow an attorney to directly sue for fees, and it did not limit this statement to any of the specific circumstances that plaintiff cites. 982 F.2d at 1582 n. 12. Moreover, the reasoning of both Knight and FDL applies to plaintiff’s case and precludes plaintiffs recovery. The Back Pay Act states that “[a]n employee” is entitled to attorney’s fees. It does not state that an attorney is entitled to attorney’s fees. Knight and FDL are controlling, and plaintiff fails to state a claim on which relief can be granted.
2. Money-mandating Source.
Plaintiff fails to state a claim on which relief can be granted for the additional reason that he has not identified a money-mandating source. 28 U.S.C. § 1491(a)(1)3 grants the Court jurisdiction over claims founded on a contract with the United States or on a Constitutional provision, federal statute, or federal regulation that requires the United States to pay money damages for a violation — a “money-mandating source.” See Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed.Cir.2007); Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997). Thus, a plaintiff must identify a money-mandating source to establish jurisdiction. Ferreiro, 501 F.3d at 1351. A source is money-mandating if it: (1) imposes specific obligations on the government, and (2) can fairly be interpreted as mandating compensation for damages sustained from the government’s breach of those obligations. Samish Indian Nation v. United States, 657 F.3d 1330, 1335 (Fed.Cir.2011). Additionally, the source must be money-mandating with respect to the plaintiff. That is, the plaintiff must belong to the class of plaintiffs that the source authorizes to recover money damages. Greenlee County v. United States, 487 F.3d 871, 876 n. 2, 877 (Fed.Cir.2007).
The Back Pay Act alone is not a money-mandating source, but is only money-mandating where the plaintiffs Back Pay Act claim is based on violations of another money-mandating source. Mendoza v. United States, 87 Fed.Cl. 331, 335 (2009). A pay statute such as 5 U.S.C. § 5332 can be a money-mandating source that creates jurisdiction for a Back Pay Act claim. Id.; see also United States v. Connolly, 716 F.2d 882, 887 (Fed.Cir.1983). However, a plaintiff may only recover if he or she is one of the persons that the statute entitles to receive pay. Doe, 463 F.3d at 1324-1326 (dismissing attorneys’ claims for overtime pay where statute gave agency discretion and agency order did not list “attorney” as a covered position); see also Mendoza, 87 Fed.Cl. at 335-336 (plaintiffs identified a money-mandating source of law because § 5332 entitled them to the General Schedule pay rates if they could prove they were federal employees).
Here, plaintiff fails to identify a money-mandating source because plaintiff is not one of the persons that § 5332 authorizes to receive pay. Plaintiff is correct that § 5332 can be a money-mandating source. However, § 5332 provides that “[e]ach employee” is entitled to pay according to the General Schedule and makes no mention of any pay-*184mente to an employee’s attorney.4 Thus, § 5332 is not money-mandating with respect to plaintiff, and plaintiff has failed to state a claim on which relief can be granted.
IV. Conclusion
The Court grants defendant’s Motion to Dismiss. The Clerk shall dismiss the Complaint and enter judgment for defendant. The parties shall bear their own costs.
. Adair v. United States, 497 F.3d 1244, 1251 (Fed.Cir.2007) (if the statute that the plaintiff identifies is simply not money-mandating, the Court must dismiss the claim for lack of subject matter jurisdiction under Rule 12(b)(1), but if the statute is money-mandating and the facts as pled do not fit within the statute’s scope, the Court must dismiss the claim on the merits under Rule 12(b)(6) for failure to state a claim on which relief can be granted). Here, plaintiff has identified a money-mandating source, 5 U.S.C. § 5332 (in connection with the Back Pay Act), but has not pled facts that fit within the scope of these statutes because the Back Pay Act does not allow an attorney to directly sue for fees and § 5332 does not authorize a federal employee’s attorney to receive pay. See discussion infra Part III. 1-2; Doe v. United States, 463 F.3d 1314, 1324 (Fed.Cir.2006) ("The jurisdictional requirement is met if a statute or regulation is 'money-mandating.' However, a party bringing suit under the Tucker Act may then lose on the merits if he or she is not one of the persons entitled to pay under the statute or regulation.”) (citation omitted).
. These sections provide:
(b) (1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee—
(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect—
(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period; and
(ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title I of the Foreign Service Act of 1980, shall be awarded in accordance with standards established under section 7701(g) of this title....
. 28 U.S.C. § 1491(a)(1) provides:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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....
. Section 5 U.S.C. § 5332 provides:
(a)(1) The General Schedule, the symbol for which is "GS”, is the basic pay schedule for positions to which this subchapter applies. Each employee to whom this subchapter applies is entitled to basic pay in accordance with the General Schedule.
(2) The General Schedule is a schedule of annual rates of basic pay, consisting of 15 grades, designated "GS-1” through "GS-15”, consecutively, with 10 rates of pay for each such grade. The rates of pay of the General Schedule are adjusted in accordance with section 5303.
(b) When payment is made on the basis of an hourly, daily, weekly, or biweekly rate, the rate is computed from the appropriate annual rate of basic pay named by subsection (a) of this section in accordance with the rules prescribed by section 5504(b) of this title. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218267/ | OPINION AND ORDER
WHEELER, Judge.
This case is before the Court on the parties’ cross-motions for summary judgment on liability. Plaintiff, SUFI Network Services, Inc. (“SUFI”) is seeking the recovery of attorneys’ fees, expenses, and interest that it incurred following the Government’s material breach of a contract for telephone services performed in Germany. The contract in*188volves an Air Force non-appropriated funds instrumentality in which neither the Contract Disputes Act (“CDA”) nor the Federal Acquisition Regulation (“FAR”) applies. Due to the lack of other authority, the Court still must examine whether SUFI’s legal costs are unallowable if incurred in connection with “the prosecution of claims or appeals against the Federal Government.” FAR § 33.205-47(f)(1). The Court also must review the Federal Circuit’s decision in Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541 (Fed.Cir.1995), overruled in part on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1579 n. 10 (Fed.Cir.1995) (en banc). The Bill Strong case remains the leading authority on the allowance of legal costs in government contracts.
For the reasons explained below, the Court concludes that SUFI’s legal costs are not precluded by any FAR cost principle or the Bill Strong decision, and constitute costs eligible for recovery by equitable adjustment under the contract’s “Changes” clause. The Court therefore grants SUFI’s February 13, 2012 motion for summary judgment and denies the Government’s March 15, 2012 cross-motion for summary judgment.
The parties each argued in their cross-motions that the decision of the Armed Services Board of Contract Appeals (“ASBCA”) on attorneys’ fees, SUFI Network Services, Inc., ASBCA No. 55306, 09-1 BCA ¶ 34018 (Nov. 21, 2008) (“SUFI ASBCA VIII”), had a preclusive effect requiring a ruling in their favor. The Court finds the ASBCA’s decision inconclusive on the issue of attorneys’ fees, and cannot say that the Board ever clearly ruled on this issue. Accordingly, the Court grants summary judgment for SUFI, but on a different basis than SUFI argued in its motion.
Background1
The Court provided a more detailed factual background and procedural history of this dispute in its January 17, 2012 opinion denying the Government’s motion to dismiss. See SUFI CFC I, 102 Fed.Cl. at 658-60. The facts below relate only to the merits of SUFI’s claim for attorneys’ fees, expenses, and interest.
1. The Contract
SUFI and the U.S. Ar Force Non-Appropriated Funds Purchasing Office (“AF-NAFPO”) entered into a contract on April 26, 1996 for SUFI to install and operate telecommunications systems on Ar Force bases in Germany. SUFI ASBCA VIII, 09-1 BCA ¶ 34,018, at 168,217-18 ¶1 (Nov. 21, 2008). The AFNAFPO materially breached this contract. See generally SUFI ASBCA II, 04-2 BCA ¶ 32,714 (Aug. 17, 2004).
Neither the CDA, 41 U.S.C. §§ 601-13 (2006) (current version at 41 U.S.C. §§ 7101-09), nor the FAR applies to this contract. Compl. (Jul. 8, 2011), at 1 ¶ 2.2 However, the contract incorporates by reference the standard FAR “Changes” clause:
If any ... change causes an increase or decrease in the cost of, or the time required for, performance of any part of the *189work under this contract ... the Contracting Officer shall make an equitable adjustment in the contract price, the delivery-schedule, or both, and shall modify the contract.
FAR § 52.243 — 1(b) (2011); see also SUFI ASBCA VIII, at 168,218 ¶ 2.
2. SUFI’s Monetary and Employee Claims
On August 25, 2004, SUFI notified the AFNAFPO’s contracting officer (“CO”) that it intended to cancel the contract as a result of the AFNAFPO’s material breach. SUFI ASBCA VIII, at 168,218 ¶ 6. The parties reached a Partial Settlement Agreement (“PSA”) on May 31, 2005, with an effective date of April 1, 2005, pursuant to which SUFI stopped its work under the contract. Id. at 168, 218-19 ¶ 7; see also Pl.’s Mem. (Mar. 29, 2012), at 11; Def.’s Mem. (Mar. 15, 2012), at 11 ¶¶ 13-14. SUFI submitted 28 monetary claims to the CO on July 1, 2005, under both the contract and the PSA. Id. at 168,219 ¶ 8.
After the CO failed to issue a final decision for more than six months, the Board docketed SUFI’s appeal as a “deemed denial” on January 5, 2006. Id. at 168,217. The CO subsequently denied all but one of SUFI’s 28 monetary claims. Id. at 168,219 ¶ 9. SUFI then amended its complaint to appeal the CO’s final decision. Pl.’s Mem. (Mar. 29, 2012), at 11; Def.’s Mem. (Mar. 15, 2012), at 11 ¶ 16. On October 13, 2006, the parties executed an agreement (the “October 2006 Agreement”) settling ten of SUFI’s monetary claims. See SUFI ASBCA VIII, at 168,219-21 ¶¶ 13-18. The Board, however, determined that this agreement was unenforceable. See id. at 168,221-22.
SUFI ultimately recovered on 22 of its 28 monetary claims. See generally SUFI ASBCA VIII, 09-1 BCA ¶ 34,018 (Nov. 21, 2008), recons, granted in part, SUFI ASBCA IX, 09-2 BCA ¶ 34,201 (Jul. 15, 2009), SUFI ASBCA X, 10-1 BCA ¶ 34,327 (Dec. 14, 2009), and SUFI ASBCA XI, 10-1 BCA ¶ 34,-415 (Apr. 5, 2010).3 The Board awarded SUFI damages, as well as the costs and expenses of SUFI’s employees and non-legal consultants incurred as a result of the AF-NAFPO’s material breach. See SUFI ASBCA VIII, at 168,289-92.
At the time of the Board’s decision on SUFI’s 28 monetary claims in SUFI ASBCA VIII, SUFI had not yet presented the CO with its claim for attorneys’ fees and expenses. Def.’s Mem. (Mar. 15, 2012), at 8; Pl.’s Mem. (Feb. 13, 2012), at 4 ¶ 7.4 Nevertheless, the Board observed:
Since [counsel] undertook to represent SUFI in its claim preparation and in this litigation on a one-third contingency basis (finding 340) ... we need not rule on the allowability of their legal fees and expenses. Once this decision is promulgated, [counsel] presumably will be compensated based upon their contingent fee arrangement with SUFI.
SUFI ASBCA VIII, at 168,289. Additionally, the Board noted that FAR § 31.205-33(b) (2011) does not govern the parties’ non-appropriated funds contract but is “useful in the absence of other guidance.” Id.
3. SUFI’s Fee Claim
SUFI submitted its attorneys’ fees claim to the CO on December 29, 2010. SUFI CFC I, 102 Fed.Cl. at 659 (internal citations omitted). In its submission, SUFI “itemized attorneys’ fees of $663,131.25 and expenses of $21,576.30, plus interest through the last full month prior to the claim’s submission.” Pl.’s Mem. (Feb. 13, 2012), at 4 ¶ 9. SUFI also “attached supporting documentation and affidavits.” Id. However, the CO again failed to issue a final decision for more than six months. See SUFI CFC I, 102 Fed.Cl. at 662. On July 8, 2011, SUFI brought its attorneys’ fees claim in this Court, including claims for interest and fees relating to the *190instant action. The Government moved to dismiss for failure to exhaust administrative remedies, but the Court denied the Government’s motion on January 17, 2012.
4. The Instant Dispute
On February 13, 2012, SUFI moved for summary judgment on both liability and damages, pursuant to Court Rule ("RCFC”) 56. The Government cross-moved for summary judgment on March 15, 2012. By order dated February 17, 2012, the Court stayed the issue of damages pending this decision on liability.
In their respective cross-motions, each party asserts preclusion arguments pertaining to the Board’s decision in SUFI ASBCA VIII. SUFI contends that the Board ruled for it on liability but deferred ruling on damages. Pl.’s Mem. (Mar. 29, 2012), at 4. In contrast, the Government contends the Board found that (i) “where a party enters into a contingent fee arrangement such fees are not compensable,” Def.’s Mem. (Mar. 15, 2012), at 16; and (ii) therefore, a ruling on damages was “just gratuitous,” Def.’s Mem. (Apr. 9,2012), at 2-3 n. 1.
SUFI asserts entitlement to its attorneys’ fees (i) as damages under the contract and PSA, see Compl. (Jul. 8, 2011), at 4 ¶¶ 19-22; and (ii) in the alternative, as an equitable adjustment under the Changes clause, see id. at 5 ¶¶ 23-25.5 In turn, the Government challenges SUFI’s attorneys’ fees claim as unallowable under FAR § 31.205-47(f)(1) (2011) (previous version at FAR § 31.205-33(d)), due to SUFI’s eventual prosecution of its monetary claims before the Board. See Def.’s Mem. (Apr. 9, 2012), at 5-6; Def.’s Mem. (Mar. 15, 2012), at 18-23.
For the reasons explained below, the Court rejects both parties’ preclusion arguments because the ASBCA never clearly decided the attorneys’ fees issue. Nonetheless, upon de novo review, the Court grants SUFI’s motion for summary judgment on liability and denies the Government’s cross-motion. The Court need not address SUFI’s first theory of entitlement because there is no genuine dispute that SUFI is entitled to its attorneys’ fees claim as an equitable adjustment under the Changes clause of the contract.
Standard of Review
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see also Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1378 (Fed.Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). By contrast, summary judgment is not appropriate where “the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. In reviewing a motion for summary judgment, the benefit of all factual inferences runs in favor of the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam). “However, bald assertions and speculation do not create an evi-dentiary conflict sufficient to defeat a summary judgment motion.” Lathan Co. v. United States, 20 Cl.Ct. 122, 125 (1990) (citing Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed.Cir.1984)). The plain language of RCFC 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Discussion
A. Both Parties' Preclusion Arguments Are Unavailing.
“Normally, a final judgment in one court is binding on the same parties in a subsequent action before another court as a matter of res judicata; in such a setting the first judgment ordinarily cannot be collater*191ally challenged in the second proceeding.” Neb. Pub. Power Dist. v. United States, 590 F.3d 1357, 1363 (Fed.Cir.2010) (en banc). This rule of preclusion, grounded in principles of comity, extends to the judgments of the ASBCA. See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 418-22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966), superseded by statute on other grounds, CDA, 41 U.S.C. §§ 601-13 (2006) (current version at 41 U.S.C. §§ 7101-09), as recognized in, Alliant Techsys., Inc. v. United States, 186 F.3d 1379 (Fed.Cir.1999) (per curiam). Nevertheless, “[pjreeedent cautions that res judicata is not readily extended to claims that were not before the- court, and precedent weighs heavily against denying litigants a day in court unless there is a clear and persuasive basis for that denial.” Kearns v. Gen. Motors Corp., 94 F.3d 1553, 1557 (Fed.Cir.1996).
Here, the Government argues that the Board in SUFI ASBCA VIII expressly referenced FAR § 31.205-33(b), which purportedly prohibits the award of any legal fees to a litigant represented on a contingent fee basis. See Def.’s Mem. (Apr. 9, 2012), at 2-3 n. 1; Def.’s Mem. (Mar. 15, 2012), at 16. The Court cannot abide this sweeping characterization and, in any event, will not give it preclusive effect in light of the Board’s explicit “we need not rule” language. SUFI ASBCA VIII, at 168,289.
SUFI’s preclusion argument similarly fails. See Pl.’s Mem. (Mar. 29, 2012), at 4. While the Board did grant SUFI’s non-legal employees cost claim, it specifically stated “we need not rule” as to SUFI’s attorneys’ fees claim. SUFI ASBCA VIII, at 168,289. Furthermore, the Board expressly referenced both (i) “finding 340,” which documented SUFI’s contingency fee arrangement; and (ii) FAR § 31.205-33(b), which at least limits a plaintiffs recovery of contingency fees against the Government. See id. Mindful that SUFI did not even submit a claim for attorneys’ fees to the CO until December 29, 2010, the Court holds that the Board could not and did not rule conclusively in November 2008 as to SUFI’s attorneys’ fees claim. Accordingly, the Court proceeds to the substance of the contingency fee issue.
B. The Court May Award Attorneys’ Fees Where Counsel Represents a Party Against the Government on a Contingency Basis.
“Costs of professional and consultant services are allowable ... when reasonable in relation to the services rendered and when not contingent upon recovery of the costs from the Government.” FAR § 31.205-33(b). Here, the Government urges the Court to apply this contingent fee restriction as an absolute bar and, therefore, to deny SUFI’s attorneys’ fees claim irrespective of its merits. The Court does not accept the Government’s position.
First and foremost, the FAR and its cost principles provide only guidance here; they do not control the parties’ non-appropriated funds contract. See FAR §§ 1.104, 2.101 (2011). However, even if the FAR were controlling, SUFI’s contingent fee arrangement with outside counsel would “not preclude the award of reasonable attorney’s fees.” E.C. Schleyer Pump Co., Inc., ASBCA No. 33900, 89-1 BCA ¶ 21,194, at 106,958 (Sep. 6, 1988). After all, SUFI is “a small company” that “no longer had a revenue stream” after the AFNAFPO’s material breach. Pl.’s Mem. (Feb. 13, 2012), at 10. Given SUFI’s “limited ability to fund expensive and protracted litigation” with the Government, a ruling against an attorneys’ fees award would be manifestly unjust. See E.C. Schleyer, at 106,958.
The better interpretation of FAR § 31.205-33(b) is that it merely provides guidance as to fee recovery, setting attorneys’ fees at “the ‘lodestar’ amount of the hours worked at the normal hourly rate.” Pl.’s Mem. (Feb. 13, 2012), at 4; cf. Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (allowing for an award of reasonable fees, despite a contingency fee arrangement, in the context of the Civil Rights Attorney’s Fees Award Act, 42 U.S.C. § 1988 (2006)). While FAR § 31.205-33(b) may preclude the payment of attorneys’ fees as a percentage of recovery against the Government, that cost principle does not prevent the payment of fees calculated on an hourly basis at reasonable hourly rates. *192Even if outside counsel provided services to a client on a contingency basis, counsel and the represented party still may recover fees if they are claimed on an hourly basis rather than a contingency basis. Thus, SUFI’s contingency fee arrangement with counsel poses no obstacle to it prevailing on the merits of its attorneys’ fees claim.
C. SUFI’s Fee Claim, Is Compensable As an Equitable Adjustment Under the Contract’s Changes Clause, Despite SUFI’s Eventual Appeal of Its Monetary Claims to the ASBCA.
When a contractor incurs costs due to (i) formal or constructive changes to the contract; (ii) governmental defect or delay; or (iii) the Government’s breach, the contractor is entitled to request an equitable adjustment (“REA”). See Michael W. Clancy, REA Preparation Costs—Bill Strong Enterprises, Inc. v. Shannon, 25 Pub. Cont. L.J. 537, 582 (1996) (internal footnotes omitted). An “equitable adjustment” is an adjustment to a contract’s price or schedule under a Changes clause to compensate a contractor for adverse governmental action. See 4 John Cosgrove McBride & Thomas J. Touhey, Government Contracts: Law, Administration, Procedure § 28.280 (Walter Wilson ed., Matthew Bender 2009). REA preparation “normally requires a substantial effort, including contract analysis, factual investigation, legal entitlement analysis, the' drafting process, the collection of documentary evidence, and the pricing of the equitable adjustment.” Clancy, supra, at 582 (internal footnote omitted). Nonetheless, “[c]osts ... are unallowa-ble if incurred in connection with ... the prosecution of claims or appeals against the Federal Government.” FAR § 33.205-47(f)(1).
Here, the AFNAFPO materially breached the parties’ contract, plausibly entitling SUFI to an equitable adjustment under the Changes clause. However, SUFI ultimately appealed its 28 monetary claims to the ASBCA, recovering on 22 of them.
Thus, at issue is whether SUFI’s attorneys’ fees claim is itself allowable as an equitable adjustment, or unallowable as costs incurred in connection with the prosecution of SUFI’s monetary claims against the Government.6 There is no single legal rule to answer this question. Therefore, the Court undertakes a two-step inquiry: (i) a per se review for costs that are unallowable under FAR § 33.205 — 47(f)(1); and (ii) a more robust analysis to distinguish between compen-sable “contract administration” costs and noncompensable “claim prosecution” costs within the meaning of the seminal Bill Strong decision. See generally 49 F.3d 1541 (Fed.Cir.1995).
1. FAR § 33.205-47(f)(1)’s Per Se Bar Does Not Apply to SUFI’s Attorneys’ Fees Claim.
The title of FAR § 31.205-47 (2011) is “Costs related to legal and other proceedings.” The FAR limits the scope of “legal proceedings” to “any civil judicial proceeding to which the Government is a party or any criminal proceeding ... including] *193appeals from such proceedings.” FAR § 9.403 (2011). Therefore, FAR § 33.205-47(f)(1) does not bar the recovery of costs related to non judicial administrative processes that pre-date a contractor’s actual filing of its Board appeal, such as information exchanges at the contracting officer level. See Clancy, supra, at 585-86. Accordingly, there is no per se bar to SUFI’s recovery of the costs that it incurred before January 5, 2006, the date SUFI appealed its monetary claims to the ASBCA,7
2. SUFI’s Attorneys’ Fees Claim Involves Compensable “Contract Administration” Costs Within the Meaning of Bill Strong.
In applying FAR § 33.205-47(f)(1), the Court distinguishes between allowable “contract administration” costs and unallowable “claim prosecution” costs by “examining] the objective reason why the contractor incurred the cost.” Bill Strong, 49 F.3d at 1550.8 “If a contractor incurred the cost for the genuine purpose of materially furthering the negotiation process,” and the cost otherwise is “reasonable and allocable,” then the cost is presumptively allowable “even if negotiation eventually fails” and the contractor later submits a Board appeal. Id. at 1549-50; see also FAR § 31.201-2 (2011). “On the other hand, if a contractor’s underlying purpose for incurring a cost is to promote the prosecution of’ a Board appeal, then the cost is unallowable. Id. at 1550.
There is no “bright-line test” rendering costs “automatically allowable just because those costs were incurred before” a Board appeal. Id. at 1545. The “Government must receive some benefit from the” expenditure of the costs in order for them to be allowable. Id. “In the practical environment of government contracts,” this benefit may be an increase in “the likelihood of settlement without litigation” or, simply, “a greater incentive to negotiate rather than litigate.” Id. at 1549-50.9
To summarize, at this liability stage of the proceedings, attorneys’ fees and expenses incurred in preparation of an REA under a Changes clause are themselves presumptively compensable as an equitable adjustment where:
(i) The contractor incurred the costs due to (a) formal or constructive changes to the contract, (b) governmental defect or delay, or (e) the Government’s breach, see Clancy, supra, at 582 (internal footnotes omitted);10
(ii) (a) The contractor incurred the costs in furtherance of information exchange or negotiation with the Government, whether or not it ultimately succeeded in forestalling a Board appeal, Bill Strong, 49 F.3d at 1549-50, or (b) the Government received some other benefit from the expenditure, id. at 1545; and
(iii) Where applicable, the contractor incurred the costs before the actual filing of its Board appeal, FAR *194§ 33.205-47(f)(1); see also FAR § 9.403 (2011); Clancy, supra, at 585-86.
Whether a contractor can satisfy this test for presumptive allowability, and whether the Government can rebut this presumption, normally are factual inquiries for the contracting officer. See United States v. Callahan Walker Constr. Co., 317 U.S. 56, 61, 63 S.Ct. 113, 87 L.Ed. 49 (1942). Here, however, the CO failed to make the necessary factual inquiries. See SUFI CFC I, 102 Fed.Cl. at 662. Therefore, the Court makes them itself.
SUFI easily satisfies this test for presumptive compensation on liability. In this regard, SUFI already prevailed under Bill Strong on its analogous employee claim. See SUFI ASBCA VIII, at 168,289-92; Pl.’s Mem. (Mar. 29, 2012), at 11; Def.’s Mem. (Mar. 15, 2012), at 13 ¶ 21. Also, SUFI engaged in regular negotiations and information exchanges with the CO to execute both the PSA and the ill-fated October 2006 Agreement. Finally, SUFI subjected its monetary claims to a Defense Contract Audit Agency (“DCAA”) audit, and SUFI’s counsel responded to the DCAA’s questions “on several occasions.” Pl.’s Mem. (Feb. 13, 2012), at 2 ¶ 2. Thus, as a factual matter, the record is replete with support for SUFI’s attorneys’ fees claim.
In its attempt to rebut SUFI’s prima facie case, the Government submits five separate arguments.
First, the Government argues that SUFI already had commenced the prosecution of its monetary claims at the time it prepared its REA. Def.’s Mem. (Mar. 15, 2012), at 19-20. However, as discussed above, (i) claim prosecution did not per se commence until SUFI actually appealed its monetary claims to the Board; and (ii) the factual record is filled with instances of negotiation and information exchange at the administrative level sufficient to satisfy Bill Strong.
Second, the Government contends that SUFI negotiated with the CO only to engineer the false appearance of continued contract performance. Def.’s Mem. (Mar. 15, 2012), at 20-21. SUFI, however, executed the October 2006 Agreement, which would have settled ten of its monetary claims. See SUFI ASBCA VIII, at 168,219-21 ¶¶ 13-18, 168,221-22. Executing a settlement agreement is not indicative of a party engaging in sham negotiations.
Third, the Government submits that SUFI deliberately presented the CO with an “oversized” demand for $130,308,071.53 in order “to ensure” its denial and SUFI’s subsequent appeal to the Board. Def.’s Mem. (Mar. 15, 2012), at 21. In support of this position, the Government adds that SUFI knew its demand was unrealistic in light of the AFNAF-PO’s past rejection of an estimated $10.2 million termination for convenience settlement, which SUFI had proposed in August of 2003. Id. at 21 n. 10; see also id. at 10 ¶ 6. However, SUFI responds that (i) it provided the proposed settlement estimate only upon the AFNAFPO’s request; and (ii) the proposal did not relate to all of SUFI’s monetary claims. Pl.’s Mem. (Mar. 29, 2012), at 10. In light of the Government’s policy found in FAR § 33.204 (2011), “to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level,” the Court rejects the Government’s position. Penalizing a contractor for a subjectively “oversized” demand, by comparing the demand to a past settlement proposal, would discourage the contractor from proposing early settlement in the first place.
Fourth, the Government notes that SUFI did not wait for a final decision on its monetary claims before appealing to the Board. Def.’s Mem. (Mar. 15, 2012), at 21-22. However, SUFI waited more than six months for the CO to issue a final decision before filing its Board appeal as a deemed denial.
Finally, the Government submits that SUFI’s monetary claims “swelled” once before the Board from $130,308,071.53 to $162,124,658.89. Def.’s Mem. (Mar. 15, 2012), at 22; see also id. at 11-12 ¶¶ 16-17. However, SUFI responds that the $162,124,658.89 figure “inelude[s] interest, as well as revisions to principal based on record evidence and correction of errors.” Pl.’s Mem. (Mar. 29, 2012), at 11. The Court finds SUFI’s explanation credible and, therefore, rejects this argument as well.
*195For the foregoing reasons, SUFI’s attorneys’ fees claim involves compensable contract administration costs within the meaning of Bill Strong.
D. The FAR Does Not Control but Provides Necessary Guidance in Applying the Common Law Test That Does Control.
“Because this is a non-appropriated funds contract, the common law applies without modification by the FAR.” Pl.’s Mem. (Feb. 13, 2012), at 5; see also FAR §§ 1.104, 2.101 (2011). Under the common law, attorneys’ fees are compensable if they are “a direct and foreseeable consequence” of the Government’s “breach of its contractual undertakings.” Mass. Bay Transp. Auth. v. United States (“MBTA”), 129 F.3d 1226, 1232-33 (Fed.Cir.1997) (Newman, J.); Pratt v. United States, 50 Fed.Cl. 469, 482-83 (2001) (collecting citations); but see Def.’s Mem. (Apr. 9, 2012), at 11 (limiting MBTA to its facts); Def.’s Mem. (Mar. 15, 2012), at 33 (limiting Pratt to its facts).
Notwithstanding the above, the FAR is highly relevant “as a guide” “in the absence of other guidance.” SUFI ASBCA VIII, at 168,289; In re Reidhead Bros. Lumber Mill, AGBCA No. 2000-126-1, 01-2 BCA ¶ 31,486, at 155,442 (Jun. 29, 2001). In their briefs, both parties apply the common law’s MBTAPratt test almost exclusively by analyzing FAR § 33.205—47(f)(1) and the Bill Strong case that interpreted it. See Def.’s Mem. (Apr. 9, 2012), at 5-6; Pl.’s Mem. (Mar. 29, 2012), at 9-10; Def.’s Mem. (Mar. 15, 2012), at 18-23, 31; Pl.’s Mem. (Feb. 13, 2012), at 5-9. Similarly, in SUFI ASBCA VIII, the Board analyzed SUFI’s analogous employee claim exclusively under FAR § 33.205-47(0(1) and Bill Strong. See SUFI ASBCA VIII, at 168,289-92; Pl.’s Mem. (Mar. 29, 2012), at 11; Def.’s Mem. (Mar. 15, 2012), at 13 ¶ 21.
Moreover, the FAR would apply if the AFNAFPO were not a NAFI. In light of the Federal Circuit’s recent decision in Slattery v. United States, that distinction has become markedly less meaningful. See 635 F.3d 1298, 1321 (Fed.Cir.2011) (en bane) (dispensing with prior jurisprudence distinguishing between NAFIs and entities receiving appropriated funds for jurisdictional purposes).
Accordingly, the FAR does not control the instant dispute. Nevertheless, it provides the Court with necessary guidance in applying the common law’s MBTA/Pratt test that does control. The Court thus holds that SUFI’s attorneys’ fees claim is “a direct and foreseeable consequence” of the AF-NAFPO’s material breach.
Conclusion
For the foregoing reasons, the Court rejects both parties’ preclusion arguments pertaining to SUFI ASBCA VIII. Upon de novo review, the Court holds there is no genuine dispute that SUFI is entitled to its attorneys’ fees claim as an equitable adjustment. Therefore, the Court GRANTS SUFI’s February 13, 2012 motion for summary judgment on liability and DENIES the Government’s March 15, 2012 cross-motion for summary judgment. The parties are requested to submit a joint status report on or before Monday, July 2, 2012 describing their proposed procedures and schedule for resolving the damages portion of this case.
IT IS SO ORDERED.
. In addition to this case (No. 11-453C), another case involving the same parties and operative facts is pending before the Court (No. 11-804C). Presently, the parties are briefing cross-motions for judgment on the administrative record in case No. 11-804C. The Court issued a published opinion on January 17, 2012, in which it denied the Government’s motion to dismiss this case. See SUFI Network Servs., Inc. v. United States, 102 Fed.Cl. 656 (2012). In that opinion, the Court referred to this case as “SUFI CFC I” and to case No. 11-804C as “SUFI CFC II." See id. at 658 n. 1. However, given the possibility of subsequent opinions in this case on damages and in case No. 11-804C on the parties’ cross-motions, the Court believes it is sensible to adopt a revised convention for naming the different cases. Accordingly, the Court hereinafter will refer to its January 17, 2012 opinion as "SUFI CFC I" and to this opinion as “SUFI CFC II.” Later opinions will be numbered in sequence. The Court will continue to use the naming convention established in its January 17, 2012 opinion to refer to the eleven reported decisions of the ASBCA. See id. at 658 n. 3 ("For clarity, the Court refers to the ASBCA decisions as 'SUFI ASBCA /’ and 'SUFI ASBCA II,’ in sequence through 'SUFI ASBCA XI.”').
. The FAR does not apply to a government contract with a non-appropriated funds instrumentality ("NAFI”). See FAR § 1.104 (2011) ("The FAR applies to all acquisitions as defined in Part 2 of the FAR, except where expressly excluded.”); FAR § 2.101 (2011) ("Acquisition means the acquiring by contract with appropriated funds of supplies or services.”).
. In case No. 11-804C, SUFI seeks this Court's review of the ASBCA's rulings on twelve of its monetary claims, largely concerning the amount of damages that the Board awarded. See Compl. (Nov. 30, 2011), at 6-7 ¶¶ 22-23.
. The Board limited SUFI’s recovery on its employee claim only to those costs corresponding to SUFI's 22 successful monetary claims. See SUFI ASBCA VIII, at 168,290-91. This Court defers any analogous determination on SUFI’s attorneys’ fees for subsequent proceedings on damages.
. The Government agreed in the PSA to pay interest on any subsequent monetary claims that SUFI brought under the contract. SUFI CFC I, 102 Fed.Cl. at 659 (internal citation omitted).
. "A material breach does not automatically and ipso facto end a contract. It merely gives the injured party the right to end the agreement; the injured party can choose between canceling the contract and continuing it.” Cities Serv. Helex, Inc. v. United States, 543 F.2d 1306, 1313 (Ct.Cl.1976) (en banc) (internal footnote omitted). "As a general proposition, one side cannot continue after a material breach by the other ... run up damages, and then go suddenly to court.” N. Helex Co. v. United States, 455 F.2d 546, 551 (Ct.Cl.1972). The Government cites to Cities Service Helex and Northern Helex and, in effect, argues that SUFI waived its rights under the Changes clause due to its cancellation of the contract. Def.’s Mem. (Apr. 9, 2012), at 7; Def.’s Mem. (Mar. 15, 2012), at 23-24. As applied to the present case, however, those precedents are inapposite. For example, unlike the Department of the Interior in Cities Service Helex, the AFNAF-PO did not detrimentally rely upon SUFI’s apparent continued performance. In the absence of such detrimental reliance, the Government cannot maintain that because it materially breached its substantive obligations to SUFI under the contract, it can breach its procedural obligations to SUFI under the Changes clause. After all, contract cancellation by one party is a natural outgrowth of material breach by its coun-terparty, even if not a guaranteed consequence. SUFI’s cancellation of the contract does not deprive it of procedural rights under the contract relating to events that took place before cancellation, to the extent those events affected its substantive contractual rights.
. The Court defers any determinations on SUFI’s request for attorneys' fees and expenses relating to this action until the damages stage.
. The Bill Strong court limited the scope of its interpretive ruling to the former FAR § 31.205-33(d). See 49 F.3d at 1544 n. 2. In the instant opinion, the Court holds that Bill Strong’s framework extends with equal force to FAR § 33.205-47(f)(1), a successor regulation which is substantively comparable to the former FAR § 31.205-33(d).
. The Government cites Singer Co. v. United States for the proposition that "requests for equitable adjustment [are] not performance-related” and bear "no beneficial nexus either to contract production or to contract administration.” 568 F.2d 695, 721 (Ct.Cl.1977) (per curiam). The Court rejects the applicability of this proposition in this case. First, unlike in Singer, where the Government’s underlying liability was uncertain, the AFNAFPO materially breached its contract with SUFI. Second, as the Bill Strong court recognized, see 49 F.3d at 1547-49, the Defense Procurement Improvement Act, Pub.L. No. 99-145, § 911 (1985), superseded the above language from Singer and the subsequent cases that relied upon it. Instead, an REA satisfies the "benefit to the Government requirement” if it furthers negotiation or information exchange with the agency. See Bill Strong, 49 F.3d at 1549-50.
.Whether SUFI’s costs are reasonable, and are allocable to the AFNAFPO’s material breach, see FAR § 31.201-2 (2011), is a question best left for the damages stage of the proceedings. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218268/ | *197OPINION
FIRESTONE, Judge.
In this “Rails-to-Trails” ease, this court previously ruled that the government violated the Fifth Amendment when it “took” an interest in plaintiffs’ property without paying just compensation by authorizing recreational trail use across plaintiffs’ properties under a Notice of Interim Trail Use (“NITU”), issued pursuant to the National Trails System Act Amendments of 1983 (“Trails Act”), 16 U.S.C. § 1247(d) (2006). Macy Elevator v. United States, 97 Fed. Cl. 708, 731-36 (2011). Now pending before the court are the parties’ cross-motions for summary judgment on the methodology that the parties will use to value plaintiffs’ properties in determining the correct measure of just compensation. In making this determination, the court must address two issues that it had deferred in its earlier liability decision. First, the court must rule on whether “rail-banking,” as authorized under the Trails Act, falls within the scope of the railroad purpose easements granted by these plaintiffs.1 Id. at 730. Second, the court must determine “whether the Indiana statute on railroad abandonment is relevant to valuing the property interest taken from plaintiffs.” Id. at 735.
While the parties were briefing those issues before this court, the Supreme Court of Indiana accepted certification on similar issues in a different Rails-to-Trails case pending in this court. On March 20, 2012, the Indiana Supreme Court issued its decision in that case. Howard v. United States, 964 N.E.2d 779 (Ind.2012). The Indiana Supreme Court, in line with the liability opinion in this case, concluded that “under Indiana law, ... interim trail use pursuant to the federal Trails Act [is] not within the scope of railroad [purpose] easements.” Id. at 784. The Indiana Supreme Court also clarified that “railbanking” is not within the scope of railroad purpose easements under Indiana law. Id. The Indiana Supreme Court did not discuss, however, “the consequences of [a finding that “railbanking” and interim trail use fall outside the scope of railroad purpose easements] under Indiana law.” Id. (citing the government’s brief in that case). Therefore, the Indiana Supreme Court did not address whether railroad purpose easements in Indiana terminate, by legal abandonment or otherwise, when those easements are used as recreational trails subject to “railbanking.”
After the Indiana Supreme Court issued its opinion in Howard v. United States, plaintiffs, on April 30, 2012, filed their reply and response to the pending cross-motions. Pls.’ Resp., EOF No. 79. The government has not filed a reply. For the reasons that follow, plaintiffs’ motion for partial summary judgment is GRANTED, and the government’s motion for partial summary judgment is DENIED.
I. STANDARD OF REVIEW
When considering a summary judgment motion, the court’s proper role is not to “weigh the evidence and determine the truth of the matter,” but rather “to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, the parties’ dispute involves only the legal issue of the correct method for determining just compensation under the Trails Act and Indiana law. Summary judgment is appropriate where the only issues to be decided are issues of law. Huskey v. Trujillo, 302 F.3d 1307, 1310 (Fed.Cir.2002) (citing Dana Corp. v. United States, 174 F.3d 1344, 1347 (Fed.Cir.1999)); 10A Charles Alan Wright et al., Federal Practice & Procedure § 2725 (3d ed. 2012) (“It necessarily follows from the standard set forth in the rule that when the only issues to be decided in the case are issues of law, summary judgment may be granted.”).
II. DISCUSSION
The “just compensation” due for a taking is “reimbursement to the owner for *198the property interest taken. [The property owner] is entitled to be put in as good a position pecuniarily as if his property had not been taken.” United States v. Va. Elec. & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961) (quotation omitted); Otay Mesa Prop., L.P. v. United States, 670 F.3d 1358, 1364 (Fed.Cir.2012) (“Where the property interest permanently taken is an easement, the ‘conventional’ method of valuation is the ‘before-and-after’ method, i.e., ‘the difference between the value of the property before [the easement was imposed] and after the Government’s easement was imposed.’” (quoting Va. Elec., 365 U.S. at 632, 81 S.Ct. 784)). The parties do not dispute that just compensation in this case is the difference in the value of the property before and after the taking. Instead, the parties’ dispute centers on the precise status of the “before” condition of plaintiffs’ properties.
To determine the “before” condition of plaintiffs’ properties, the court asks “what interest [plaintiffs] would have enjoyed under [state] law, in the absence of the” government action. See Preseault v. Interstate Commerce Comm’n (“Preseault I ”), 494 U.S. 1, 21, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (O’Connor, J., concurring). In this regard, to the extent that the government characterizes the “before” condition as measured by the condition of plaintiffs’ properties immediately prior to the issuance of the NITU, this characterization is inconsistent with the nature of a “taking” under the Trails Act. By operation of law, the Trails Act blocks plaintiffs’ state law reversionary interests when the NITU is issued and the taking occurs. What was “taken” from plaintiffs were these rever-sionary interests. If state law defines these reversionary interests as a right to unencumbered land, and if these interests would have been triggered absent the issuance of the NITU, then the “before” condition of plaintiffs’ properties should be those properties unencumbered by any easement.2 See Ladd v. United States, 630 F.3d 1015, 1023 (Fed.Cir.2010) (“A taking occurs when state law reversionary property interests are blocked.... The NITU is the government action that prevents the landowners from possession of their property unencumbered by the easement.” (citations omitted)); Ybanez v. United States, 102 Fed.Cl. 82, 87 (2011) (“The determination of what was taken from plaintiffs turns not on the status of the land at the time of the NITU but what interest plaintiffs would have had in the absence of the NITU.”); Raulerson v. United States, 99 Fed.Cl. 9, 12 (2011) (“Contrary to defendant’s position, the extent of the taking depends not on plaintiffs’ property interests at the time of the NITU, but rather upon the nature of the state-created property intei’est that petitioners would have enjoyed absent the federal action and upon the extent that the federal action burdened that interest.” (quotation omitted)).
In its present motion, the government argues that the “before” condition of plaintiffs’ properties should be properties that remain encumbered by a railroad purpose easement. The government contends that, under Indiana statutory and common law, railroad purpose easements are not abandoned when they are “railbanked” under the Trails Act or transferred to a trail operator to be used as a recreational trail subject to reactivation as a railroad.3
*199Plaintiffs argue in response that the Indiana law of abandonment does not control the outcome of the valuation question. According to plaintiffs, regardless of whether the railroad purpose easements were legally abandoned under Indiana law, the “before” status of their properties for valuation purposes is their properties unencumbered by any easements. Plaintiffs contend that once the railroad purpose easements across their properties were used as a recreational trail, the easements terminated, and plaintiffs should have received possession of their properties unencumbered by any railroad purpose easements. The imposition of recreational trail use by the NITU, plaintiffs argue, blocked those reversionary interests.
The court agrees with plaintiffs. In Indiana, easements may terminate and the property interest may revert to the underlying fee owner not only through abandonment, but also when reversion is expressly provided for in the granting deed, Erie-Haven, Inc. v. First Church of Christ, 155 Ind.App. 283, 292 N.E.2d 837, 841 (1973), or when the easement holder changes the use in a way that goes far beyond the purpose for which the easement was created, see Selvia v. Reitmeyer, 156 Ind.App. 203, 295 N.E.2d 869, 874 (1973). Applying these principles to the railroad purpose easements at issue in this case, the court concludes that, under Indiana law, the railroad purpose easements terminated when the railroad stopped using the easements for railroad purposes and instead transferred the easements to a trail operator for use as a recreational trail. Absent the continued imposition of trail use pursuant to the NITU, plaintiffs’ properties would have reverted to plaintiffs in fee. Therefore, for the reasons discussed in detail below, the “before” condition of plaintiffs’ properties must be valued as property unencumbered by any railroad purpose easements.
A. Under Indiana law, easements may be terminated by means other than legal abandonment.
The abandonment of railroad easements under Indiana law is now controlled by statute. Consol. Rail Corp. v. Lewellen, 682 N.E.2d 779, 783 (Ind.1997). However, this statutory scheme does not impact Indiana law governing the termination of easements by other means. For example, an easement may be terminated in Indiana by the terms of a written agreement. See, e.g., Erie-Haven, 292 N.E.2d at 841-42 (finding that an easement created through an express agreement terminated by the language of the instrument creating the easement); GTA v. Shell Oil Co., 171 Ind.App. 647, 358 N.E.2d 750, 752 (1977); see also 11 Eric C. Surette, Ind. Law Encyc. Easements § 19 (2012). In determining whether the terms of a deed prescribe the method for terminating an easement, Indiana courts look to the particular language of the granting deed. Erie-Haven, 292 N.E.2d at 841 (citing Spencer Stone Co. v. Sedwick, 58 Ind.App. 64, 105 N.E. 525, 527 (1914)); see also Trust No. 6011, Lake Cnty. Trust Co. v. Heil’s Haven Condos. Homeowners Ass’n, 967 N.E.2d 6, 14-16 (Ind.Ct.App.2012) (quoting Larry Mayes Sales, Inc. v. HSI, LLC, 744 N.E.2d 970, 972-73 (Ind.Ct.App.2001)). It is well-settled in Indiana that durational phrases, such as “so long as,” coupled with terms that place a condition on the existence of the easement, create a determinable easement and indicate automatic expiration of the easement “upon the happening of the event upon which its existence is conditioned.” Erie-Haven, 292 N.E.2d at 841; Larry Mayes, 744 N.E.2d at 973.
Furthermore, even in the absence of an express provision in a deed providing for extinguishment, the Indiana Court of Appeals has recognized that there are limits placed on the use of easements, and that an easement may be terminated if a new use is wholly incompatible with the original purpose for which the easement was created. In Selvia v. Reitmeyer, the Indiana Court of Appeals explained, in the context of an appurtenant easement, that an easement put to a use that goes far beyond its original purpose may result in termination. 295 N.E.2d at 874.4
*200B. Under Indiana law, the railroad purpose easements at issue in this case terminated either by their express terms or as a matter of law when the use of the easements changed from railroad use to recreational trail use.
As discussed at length in the court’s earlier decision, plaintiffs in this ease own properties in Indiana over which previous landowners deeded approximately sixty easements to the predecessor of Norfolk and Western Rail Company during the second half of the nineteenth century to form a railroad corridor across plaintiffs’ properties. Macy Elevator, 97 Fed.Cl. at 713. Other sections of the corridor were acquired by prescription or condemnation. Id.
Of the sixty deeds conveying railroad purpose easements, five — the Hakins, Hurst, Gould, Pence, and Brower deeds — contain words of duration indicating that the railroad purpose easements granted by those deeds are determinable. Id. at 714-716. Those deeds either limit the existence of the easement so long as the righbof-way is used for a railroad, or provide that the easement will revert when not used for railroad purposes. Id. The remaining class of deeds provide for the grant of a railroad purpose right-of-way without any additional limiting language (these are referred to in the court’s liability opinion as the “Release of Right-of-Way” deeds and the Schindler deed). Id. at 714-15. The railroad purpose easements obtained through condemnation and adverse possession also lack specific deeded language indicating that the parties intended the easements to last for a limited duration.
1. The Hakins, Hurst, Gould, Pence, and Brower deeds granted determinable easements that expired once the easements ceased to be used for railroad purposes.
As noted above, easements in Indiana may be determinable. Erie-Haven, 292 N.E.2d at 841. A determinable easement expires upon the happening of the event upon which its existence is conditioned, without any action by the landowner grantor. Larry Mayes, 744 N.E.2d at 973 (quoting Erie-Haven, 292 N.E.2d at 841). Durational language found in a deed, such as “so long as,” creates a determinable easement. Ind. Broad. Corp. v. Star Stations of Ind., 180 Ind.App. 207, 388 N.E.2d 568, 571 (1979). A use of a determinable easement outside the scope of the condition specified in the easement will result in the automatic termination of the easement. Cf. GTA, 358 N.E.2d at 751-52 (considering whether negotiations to use a determinable leasehold as a fast food restaurant terminated the determinable leasehold interest, which was granted “so long as” the premises were used as an automobile service station).
The Hakins, Hurst, Gould, Pence, and Brower deeds grant determinable easements. Each deed contains phrases indicating that the easements will terminate immediately when they are no longer used for railroad purposes. The Hakins and Hurst deeds both grant easements “to the use of said [railroad] Company, so long as the same shall be required for the use and purposes of said Road.” Macy Elevator, 97 Fed.Cl. at 714-15. The Pence deed conveyed a railroad purpose easement “so long as it shall be used for a Rail Road & no longer.” Id. at 716. The Brower deed conveyed an easement “so long as said [railroad] company may use the same for Railroad purposes.” Id. The Gould deed provides that “When said land herein Shall cease to be used for Rail Road purposes, it shall revert back to the original tract.” Id. All of these deeds granted determinable easements under Indiana law.5
*201The determinable railroad purpose easements created by the Hakins, Hurst, Gould, Pence, and Brower deeds automatically terminated by their terms when the easements ceased to be used for railroad purposes. See, e.g., Erie-Haven, 292 N.E.2d at 841; Larry Mayes, 744 N.E.2d at 972-73; Trust No. 6011, 967 N.E.2d at 14-16. Given the Indiana Supreme Court’s recent holding that “railbanking” and recreational trail use as authorized by the NITU do not qualify as “railroad purposes” in Indiana, Howard, 964 N.E.2d at 784, the trail use agreement between the trail operator and the railroad pursuant to the Trails Act, and the subsequent authorization of “railbanking” and trail use in the NITU, violate the purpose for which these determinable easements were granted. As a matter of Indiana law, the easements automatically reverted to the underlying landowners. The continued imposition of the recreational trail easement authorized by the NITU “blocked” plaintiffs’ “state law reversionary interests” in the determinable railroad purpose easements. Ladd, 630 F.3d at 1023. For the purposes of determining just compensation, therefore, plaintiffs’ properties must be valued in their “before” status as unencumbered land. See Rogers v. United States, 101 Fed.Cl. 287, 294 (2011) (holding that where the express terms of a deed provided for “abandonment” of an easement when the railroad stopped using the easement for railroad purposes, the land reverted to the underlying landowners regardless of state law abandonment principles, and the “before” condition of the plaintiffs’ property was valued as unencumbered land).
2. The railroad purpose easements created by the “Release of Right-of-Way” deeds, the Schindler deed, condemnation, or prescription terminated because the use of the easements as a recreational trail goes far beyond their original scope.
The remaining deeds at issue in this case do not contain express language that calls for automatic easement termination when the easements are used for purposes other than the operation of a railroad. The Schindler deed, which provides that the grantors “release” a right-of-way “for the purpose of constructing” a railroad, and the remaining “Release of Righti-of-Way” deeds, which indicate that the grantor shall “release, relinquish forever, quit claim and convey” land to the railroad company for a right-of-way, do not contain the durational language necessary to create a determinable easement. Macy Elevator, 97 Fed.Cl. at 714-15. The railroad purpose easements created by condemnation and prescription also lack any deeded language expressly limiting the duration of those easements. However, under Indiana law, such express language is not required to terminate an easement when that easement is used in a way that goes far beyond its original purpose. See Selvia, 295 N.E.2d at 874.
The law governing easements generally provides that the use of an easement for an “unauthorized” purpose is not sufficient to cause a forfeiture of the easement in the absence of particular deeded language to the contrary. Restatement (Third) of Property (Servitudes) § 8.3 cmt. c (2012) (“[A] court order of forfeiture for excessive use is warranted only if injunctive relief cannot practi*202cably be used to prevent excessive or unauthorized use of the servitude.”); 25 Am. Jur.2d Easements and Licenses § 99 (2012) (“Use of an easement for an unauthorized purpose, or the excessive use or misuse of it, is not sufficient to cause a forfeiture of the easement, unless the misuse of the easement is willful and substantial and not merely minor or technical”). However, minor “unauthorized” uses must be distinguished from “substantial” misuses that make it impossible for the authorized use of the easement to continue. In the former situation the easement is not terminated. In the latter, the easement may be extinguished. See 25 Am. Jur.2d Easements and Licenses § 99 (“However, an increase in the burden of the servitude of the easement, such as expanding its use from a private to a public way, may subject the easement to extinguishment for misuse.”); see also 28A C.J.S. Easements § 165 (2012) (“An easement is not lost by its use in an unauthorized manner or to an unauthorized extent, unless it is impossible to sever the increased burden so as to preserve the easement and yet impose on the servient tenement only the burden originally intended.”).
The law in Indiana conforms to these general principles. When an easement is subject to misuse in Indiana, the courts prefer injunctive relief to termination or forfeiture of the easement. Selvia, 295 N.E.2d at 874. However, the Indiana courts have recognized an exception to this general rule for changes in use that are far outside the scope of the original easement. In Selvia v. Reitmeyer, the Indiana Court of Appeals held that “[m]i-suser of an easement does not permit forfeiture unless ... it is impossible to sever the increased burden in such a way as to preserve to the dominant tenement that to which it is entitled.” Id.
Courts and legislatures in other jurisdictions have adopted similar versions of this rule. See, e.g., Brown v. Hanson, 743 N.W.2d 677, 681 (S.D.2007) (holding that under a South Dakota statute governing termination of easements, an unauthorized use of an easement warrants forfeiture if it is “incompatible” with the authorized use such that it is incapable of association or harmonious coexistence with the “nature or exercise” of the easement); Frenning v. Dow, 544 A.2d 145, 146 (R.I.1988) (quoting Penn Bowling Recreation Ctr., Inc. v. Hot Shoppes, Inc., 179 F.2d 64, 66 (D.C.Cir.1949) (holding that the right to an easement is not lost by using it in an unauthorized manner or to an unauthorized extent “unless it is impossible to sever the increased burden so as to preserve to the owner of the dominant tenement that to which he is entitled, and impose upon the servient tenement only that burden which was originally imposed upon it")); Vieth v. Dorsch, 274 Wis. 17, 79 N.W.2d 96, 98 (1956) (requiring “willful and substantial” misuse that cannot be separated from permissible use in order to justify forfeiture of an easement); Perry v. City of Gainesville, 267 S.W.2d 270, 273 (Tex.Civ.App.1954) (determining that misuser justifies forfeiture when the use for which the property is dedicated becomes impossible to execute, or where the objective of the authorized use “wholly fails” upon misuse).
The Indiana rule permitting termination of an easement where the misuse goes far beyond the terms of the easement applies here. As this court and the Federal Circuit have held, it would be “difficult to imagine that either party to the original [railroad purpose] transfers had anything remotely in mind that would resemble a public recreational trail.” Macy Elevator, 97 Fed.Cl. at 728 (quoting Preseault v. United States (“Preseault II”), 100 F.3d 1525, 1543 (Fed.Cir.1996)). The continued recreational trail use authorized by the NITU thus creates an inseparable misuse of the railroad purpose easements. See Toews v. United States, 376 F.3d 1371, 1376 (Fed.Cir.2004) (“And it appears beyond cavil that use of these easements for a recreational trail — for walking, hiking, biking, picnicking, frisbee playing, with newly-added tarmac pavement, park benches, occasional billboards, and fences to enclose the trailway — is not the same use made by a railroad, involving tracks, depots, and the running of trains. The different uses create different burdens.”). Recreational trail use as authorized by the Trails Act, which occupies the full extent of the railroad purpose easements and does not allow for any continued rail traffic, certainly goes far beyond the original pm’*203pose of the railroad purpose easements, as the Indiana Supreme Court has recently recognized: “The transformation of a line of railway to a public trail imputes a different purpose. The operation [of] a railroad line is a commercial enterprise of transport. Whereas a[] public trail is an activity of ‘recreation, not transportation.’” Howard, 964 N.E.2d at 784 (citing Preseault II, 100 F.3d at 1554).
Indiana law therefore supports the termination of the easements conveyed by the Schindler deed and “Release-of-Right-of-Way” deeds, and of the easements created by condemnation and prescription. Accordingly, as to the remaining easements, the plaintiffs owned their properties free of any railroad purpose easements when the NITU was issued. Plaintiffs’ properties in the “before” condition must be valued as properties unencumbered by any railroad purpose easements.6
III. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for summary judgment is GRANTED, and the government’s cross-motion is DENIED. Pursuant to this court’s April 27, 2012 order, the parties should have attempted to select an appraiser by June 20, 2012. If the parties were unable to mutually agree upon a joint appraiser, the parties shall file a joint status report by June 30, 2012. Otherwise the parties shall file a joint status report regarding the status of the appraisal process by August 31, 2012.
IT IS SO ORDERED.
. The Trails Act authorizes the Surface Transportation Board to preserve railroad corridors not currently in use for possible future rail use by converting those corridors into recreational trails. Caldwell v. United States, 391 F.3d 1226, 1228 (Fed.Cir.2004). Although the corridor is not used as a railroad during the period of interim trail use, it remains intact for potential future rail service. Id. at 1229. This process is called "railbanking.” Id.
. In addition, the court notes in this case that the railroad and the trail operator executed a written trail use agreement, and the railroad transferred its interests in the pertinent rail corridor to the trail operator pursuant to the Trails Act, before the issuance of the NITU in this case. Macy Elevator, 97 Fed.Cl. at 712-13; Pls.’ Proposed Findings of Fact ¶¶ 8-14, ECF No. 28; Def.’s Proposed Findings of Fact ¶¶ 12-14, ECF No. 34.
. Much of the government’s original argument in support of its "before” condition valuation approach hinged on its contention that, in Indiana, "railbanldng” is within the scope of a railroad purpose easement, and that therefore plaintiffs' properties remained encumbered by a continuing railroad purpose easement after the trail use agreement was executed and the NITU was issued. The government’s "railbanldng” argument has been rejected by the Indiana Supreme Court in Howard v. United States. 964 N.E.2d at 784 ("We hold that, under Indiana law, railbanking and interim trail use pursuant to the federal Trails Act are not within the scope of railroad easements and that railbanking and interim trail use do not constitute a permissible shifting public use.”). Thus, the government's argument that plaintiffs’ properties should be valued in the “before” status as property encumbered by a railroad purpose easement because of "railbanking” is rejected. The only issue remaining before the court is whether the Indiana law of abandon-*199merit of railroad lines affects just compensation in this case.
. Easements may also be extinguished through adverse possession, see, e.g., King v. Wiley, 785 N.E.2d 1102, 1108-09 (Ind.Ct.App.2003), and, under Indiana law, easements created through necessity will terminate once the necessity out of which the easement arose ceases to exist, Zakutansky v. Kanzler, 634 N.E.2d 75, 84 (Ind.Ct.App.1994). These types of easements, however, are not at issue in the present case.
. Although the Gould deed does not use the term "so long as,” the durational "when” coupled with a specific purpose creates a determinable easement under Indiana law. See Erie-Haven, 292 N.E.2d at 841 ("The nature, extent and duration of an easement created by an express agreement or grant must be determined by the provisions of the instrument creating the easement.”). *201The court also notes that the terms of these deeds create determinable easements, which automatically revert to the landowner upon the happening of the condition by no action of the grantor, rather than easements subject to "condition subsequent,” which require a grantor to assert his or her right of re-entry before the easement may revert. Indiana common law disfavors the creation of a condition subsequent when a deed simply sets forth a specific purpose. Sheets v. Vandalia R.R. Co., 74 Ind.App. 597, 127 N.E. 609, 611 (1920) ("A condition subsequent will not be raised by implication from a mere declaration in the deed that the grant is made for a special and particular purpose, without being coupled with words appropriate to make such a condition.”). Rather, to create a condition subsequent, a statement of purpose must be coupled with language manifesting the clear and unmistakable intent of the parties to create a condition subsequent. Id. Certain words and phrases that create an affirmative condition on the grant, especially when coupled by an express reservation of a right of re-entry, create a condition subsequent. See Brady v. Gregory, 49 Ind.App. 355, 97 N.E. 452, 454 (1912); see also Sheets, 127 N.E. at 611. The deeds at issue here do not contain the specific language necessary to create a condition subsequent under Indiana law.
. Because the court concludes that the entire universe of easements at issue in this case were terminated under Indiana law at the time the NITU was issued, it is not necessary to reach plaintiffs’ alternative argument regarding "abandonment.” Plaintiffs’ properties must be valued in the "before” condition as unencumbered fee land. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218269/ | OPINION
BRUGGINK, Judge.
This is an action brought pursuant to the court’s bid protest jurisdiction. Plaintiff, the incumbent contractor to provide base supply services at Joint Base Elmendorf-Richard-son Air Force Base, Alaska, asks the court to enjoin the Air Force from performing these services in-house. Although option years remain on the contract, the Air Force has notified plaintiff that when the latest option expires on June 29, 2012, the contract will not be renewed. Pending are plaintiffs motion for a preliminary injunction and defendant’s motion to dismiss under Rule 12(b)(1) and (6) of the Rules of the United. States Court of Federal Claims (“RCFC”). Defendant contends that the court’s subject matter jurisdiction does not extend to challenges to in-sourcing contract services, and that, in any event, even an incumbent contractor lacks standing to challenge an in-sourcing decision.
We heard oral argument on June 15, 2012, and ruled from the bench, denying both the motion to dismiss and the motion for preliminary injunction. For the reasons we explain below, the court possesses jurisdiction and plaintiff has the requisite standing, but the *206balance of hardships weighs against issuing the preliminary injunction.
BACKGROUND1
Elmendorf Support Services Joint Venture (“ESS”) currently provides base supply services to the Air Force at Joint Base Elmendorf-Richardson Air Force Base, Alaska (“JBER”). The contract became effective on October 1, 2005. The purpose was to provide general supply services, inventory control, customer and training services, contingency planning, and other support at JBER. The contract provided for one base year and nine option years, with the final option year ending on September 30, 2015. Plaintiff is currently in the sixth option year.
In March 2010, the Air Force conducted a “DTM-COMPARE”2 cost comparison between plaintiff performing those services and performance by government civilian employees. The cost comparison was done in response to a statutory requirement that the Department of Defense ensure that consideration be given to whether civilian employees can be utilized to perform functions being performed by outside contractors.3 The analysis demonstrated that performance by government civilian employees would be more cost-effective, saving the Air Force $5.4 million or 18 percent over a five-year period. On February 2, 2011, the Air Force notified plaintiff both verbally and in writing of its intent to in-souree the contract services at the end of the sixth option year, September 30, 2012, rather than exercise an additional option year.
The Air Force encountered budget difficulties in implementing the decision to move to in-house performance, however. In his declaration, Vincent E. Gasaway, the Chief of Manpower, Organization and Resources Division, states that the Air Force implemented a hiring freeze, which adversely affected the ability to hire the required 93 civilian employees to assume the base supply function.
The Air Force thus temporarily suspended in-sourcing in June 2011. Due to the lack of budgeted funds in the fiscal year 2012 budget, moreover, the parties entered into a bilateral contract modification on September 29,2011, that shortened the sixth option period so that it will end on June 29, 2012, instead of September 30, 2012. It also created a new three-month option period ending on September 29, 2012. This allowed the Air Force to use remaining fiscal year 2011 funds for the new nine-month extension.
The temporary suspension of in-sourcing ended in October 2011. Plaintiff was notified of this fact. The hiring freeze was also lifted in late 2011, although the Air Force predicted it would not be able to hire the required number of employees by the end of the new option period (June 29, 2012). Thus, the Air Force “determined that military manpower would be used temporarily to reduce mission risk during the transition.” Gasaway Decl. ¶ 5. According to Mr. Gasaway, the DTM-COMPARE model determined that using 74 military personnel would not exceed the cost of the contract.
The Air Force has begun hiring civilian personnel for the transition, although it is currently using a mix of military and civilian personnel to perform the services during the transition period. It has “committed to expedite all actions associated with this hiring action and complete the transition to an all civilian workforce as quickly as possible.” Gasaway Decl. ¶ 5.
On February 3, 2012, the Air Force notified plaintiff that it was unlikely to exercise the remaining options and predicted that the contract would end by its own terms on June 29, 2012. The Air Force also requested that *207plaintiff prepare a comprehensive transition plan. Shortly thereafter, plaintiff requested that the Ah’ Force reconsider the in-sourcing decision. On May 30, 2012, the Air Force notified plaintiff by letter that it was not exercising the three-month option period running from June 30, 2012 through September 29, 2012, and thus the contract would end on June 29,2012.
DISCUSSION
Plaintiff filed its complaint on June 1,2012. The gravamen is that, although the Air Force completed a DTM-COMPARE cost analysis using civilian employees, it never conducted one assuming military personnel. According to plaintiff, “in-sourcing the [s]er-viees to a military workforce is likely to involve costs above and beyond those associated with in-sourcing the [services to a government civilian workforce.” Compl. ¶ 22. Plaintiff also asserts that performance of those services by a military workforce is likely to be more costly than “performance of the [s]ervices by a private contractor such as [plaintiff].” Compl. ¶ 23. In addition to the cost consideration, plaintiff asserts that performance of the services by military personnel would “pose safety and mission risks.” Compl. ¶ 24. Plaintiff thus argues that the in-sourcing of the contract services lacks a rational basis, is arbitrary and capricious, and violates 10 U.S.C. § 129a and 10 U.S.C. § 2463 (West Supp.2012), which concern force management and the use of civilian personnel in the performance of Department of Defense (“DoD”) functions.
10 U.S.C. § 129a(e) provides that if the DoD seeks to transfer performance of services from contractors to civilian employees, it must comply with 10 U.S.C. § 2463. Section 2463, in turn, provides in relevant part:
[I]n determining whether a function should be converted to performance by Department of Defense civilian employees, the Secretary of Defense shall—
(A)develop methodology for determining costs based on the guidance outlined in the Directive-Type Memorandum 09-007 entitled ‘Estimating and Comparing the Full Costs of Civilian and Military Manpower and Contractor Support’ or any successor guidance for the determination of costs when costs are the sole basis for the determination;
(B) take into consideration any supplemental guidance issued by the Secretary of a military department for determinations affecting functions of that military department; and
(C) ensure that the difference in the cost of performing the function by a contractor compared to the cost of performing the function by Department of Defense civilian employees would be equal to or exceed the lesser of—
(i) 10 percent of the personnel-related costs for performance of that function; or
(ii) $10,000,000.
10 U.S.C. § 2463(e) (West Supp.2012).
In response, defendant argues that this court lacks subject matter jurisdiction under 28 U.S.C. § 1491(b)(1) (2006) because there is no pending or proposed procurement. In addition, it contends that plaintiff lacks standing because plaintiff is neither an “interested party,” nor does it have prudential standing to protest the agency’s in-sourcing decision because the injury that plaintiff alleges is not within the zone of interests protected by the statutes upon which it relies. Even if the court does possess jurisdiction, defendant argues that a preliminary injunction should be denied because of potential danger to the national security interests involved, exacerbated by the lengthy delay between the time that plaintiff first became aware of the proposed in-sourcing and when it brought this suit.
We note at the outset that there exists a split among the judges of this court regarding whether the decision to in-source contract services is renewable. In Santa Barbara Applied Research, Inc. v. United States, 98 Fed.Cl. 636 (2011), Judge Firestone held that in-sourcing decisions are properly within our bid protest subject matter jurisdiction, and that plaintiff there had standing to challenge the transfer of services in-house. In Hallmark-Phoenix 3, LLC v. United States, 99 Fed.Cl. 65 (2011), however, Judge Allegra, without deciding the question of subject mat*208ter jurisdiction, held that the in-sourcing decision there was not reviewable based on prudential standing concerns. We consider both approaches in turn below.
I. The court possesses subject matter jurisdiction because the in-sourcing decision is in connection with a proposed procurement
Plaintiff relies on the final clause of § 1491(b)(1), which allows an interested party to bring suit for “any alleged violation of statute or regulation in connection with a procurement or proposed procurement.” In Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed.Cir.2008), the Federal Circuit considered the question of what constitutes a “procurement” for purposes of that statute. It borrowed the definition that Congress provided in 41 U.S.C. § 403(2) (recodified at 41 U.S.C. § 111), which relates to the creation of the Office of Federal Procurement Policy. Based on that definition, procurements thus include “all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” 41 U.S.C. § 111 (2006).
The substance of the Air Force’s decision here was to stop procuring services from plaintiff and instead to use government employees. Because that decision necessarily included the process for “determining the need for ... services” that plaintiff currently provides, the in-sourcing decision-making process was “in connection with a procurement or proposed procurement” within the rather generous definition adopted by the Federal Circuit. The statutorily-required cost comparison under 10 U.S.C. § 2463 was the beginning of the contracting process here. Other courts which confronted this issue have come to the same result. See
Santa Barbara, 98 Fed.Cl. at 542-43; Triad Logistics Servs. Corp. v. United States, 2012 U.S. Claims LEXIS 393, *45 (2012); see also Rothe Dev., Inc. v. U.S. Dep’t of Def., 666 F.3d 336, 339 (5th Cir.2011); Vero Tech. Support, Inc. v. U.S. Dep’t of Def., 437 Fed.Appx. 766, 769-70 (11th Cir.2011); LABAT-Anderson, Inc. v. United States, 346 F.Supp.2d 145, 153-54 (D.D.C.2004).4
II. Plaintiff is an “interested party” and is not otherwise barred by prudential standing concerns
Under 28 U.S.C. § 1491(b)(1), plaintiff must be an “interested party” to proceed with its bid protest in this court. Again turning to Distributed Solutions, a plaintiff is an “interested party” for purposes of 28 U.S.C. § 1491(b)(1) if it establishes that: “(1) it was an actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed procurement.” 539 F.3d at 1344. This court and other courts have found the interested party status required by 28 U.S.C. § 1491(b)(1) in the context of a challenge to in-sourcing. See Santa Barbara, 98 Fed.Cl. at 542; LABAT-Anderson, Inc. v. United States, 65 Fed.Cl. 570, 575 (2005); see also Rothe Dev., 666 F.3d at 338-39; Vero, 437 Fed.Appx. at 771. Having concluded that there was a proposed procurement, we have no difficulty finding that plaintiff clearly has a financial interest in maintaining its incumbency. It has demonstrated its desire for the work and, but for the in-sourcing, we have every reason to assume it would still be on the job.
Santa Barbara is instructive. There the court held that “[w]here ... [plaintiff] has a track record of winning contracts for the work that the Air Force is now in-sourcing, the economic impact to [plaintiff] cannot be *209denied.” Santa Barbara, 98 Fed.Cl. at 543. Here, in its most recent contractor performance assessment report, plaintiff was rated as excellent, and for the duration of the contract, there is no dispute that plaintiff has performed well. Thus, there is a substantial chance that, given the opportunity, plaintiff would perform the services in the future.
Defendant contends that, even if standing concerns are satisfied in terms of a typical bid protest, nevertheless it is absent here because of the attenuated connection plaintiff has to the statutes it wishes the court to enforce. It invokes Judge Allegra’s rationale in Hallmark-Phoenix, where he dismissed a similar protest due to a perceived lack of “prudential standing.” Prudential standing is a judicially self-imposed standard used to circumscribe the exercise of federal jurisdiction. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). It is invoked when courts are reluctant to exercise jurisdiction over matters which, although nominally accessible under Article III (or Article I in this court), are really beyond the properly limited role of the federal judiciary. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
In Hallmark-Phoenix, Judge Allegra declined to exercise jurisdiction because, in his view, 10 U.S.C. § 129a and 10 U.S.C. § 2463 are intended to protect the government’s internal budgetary interests, and are not intended to protect contractors adversely affected by in-sourcing decisions. 99 Fed.Cl. at 76. The proper remedies for violations of 10 U.S.C. § 129a and 10 U.S.C. § 2463, according to Hallmark-Phoenix, are legislative oversight and intervention, not judicial review. See id.
Judge Firestone came to the opposite conclusion in Santa Barbara, 98 Fed.Cl. at 544. Her view is that contractors in plaintiffs position have a real interest in the proper execution of 10 U.S.C. § 129a and 10 U.S.C. § 2463. We agree. While we recognize that Congress no doubt was motivated by fiscal concerns in requiring periodic assessment of the relative costs of having services performed by outside contractors, and that this makes such protests very different in some regards from ones in which the concerns of the Competition in Contracting Act, 31 U.S.C. §§ 3551-56 (2006), are invoked, nevertheless, the procedures and standards required by these statutes circumscribe the government’s ability to bring services in-house. At a minimum, incumbent contractors have an interest in ensuring that the calculus is done properly. This competitive impulse creates an incentive to expose ways in which the government may. have acted improperly. Refereeing such debates is routine work for the court.
Subsequent to oral argument, the Supreme Court in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, — U.S. -, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012), made it clear that the prudential standing test “ ‘is not meant to be especially demanding.’ ” 132 S.Ct. at 2210 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). Moreover, the test “forecloses suit only when a plaintiffs ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’ ” Id. (quoting Clarke, 479 U.S. at 399, 107 S.Ct. 750). In sum, having concluded that there was a proposed procurement at play here, and because plaintiffs allegation here is that the procurement (read in-sourcing process) was flawed, we are satisfied that plaintiff has standing to proceed.
III. The balance of hardships weighs against issuing a preliminary injunction
A preliminary injunction is an extraordinary remedy. See FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993). For the court to issue a preliminary injunction, the plaintiff must demonstrate:
(1) that it will suffer irreparable injury if the procurement is not enjoined; (2) a reasonable likelihood of success on the merits of its claim; (3) that the harm suffered by it, if the procurement action is *210not enjoined, will outweigh the harm to the government and third parties; and (4) that granting injunctive relief serves the public interest.
MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503, 519 (2011) (citing FMC Corp., 3 F.3d at 427 (Fed.Cir.1993)). “[T]he absence of an adequate showing with regard to any one factor may be sufficient, given the weight or lack of it assigned the other factors, to justify the denial” of injunctive relief. FMC Corp., 3 F.3d at 427.
In addition to these factors, unique to the Court of Federal Claims, we have a statutory directive to “give due regard to the interests of national defense and national security and the need for expeditious resolution of the action” when determining whether to grant a preliminary injunction in a bid protest. 28 U.S.C. § 1491(b)(3) (2006). In doing so, we are to give deference “to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see also North Dakota v. United States, 495 U.S. 423, 443, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990) (“When the Court is confronted with questions relating to ... military operations, we properly defer to the judgment of those who must lead our Armed Forces in battle.”).
A. Plaintiffs potential injury
Plaintiff submitted several declarations to demonstrate the harm that it would suffer in the absence of a preliminary injunction. The thrust of the injury is economic. Plaintiff asserts that it was formed solely to work on this contract and, if the contract ends, its only source of income will cease. Additionally, Gail Schubert, President and CEO of Bering Straits Native Corporation (parent company of one of the companies that comprises ESS) stated that the Alaska Teamster-Employer Pension Plan would assess a penalty against ESS for early withdrawal from the pension plan in the amount of $7,170,513.67. Plaintiff has also submitted three declarations by Steven P. Brunin, its Program Manager. In his second declaration, Mr. Brunin states that the in-sourcing decision is causing plaintiff to lose employees to the Air Force and that plaintiff is not in a position to hire replacements.
We credit plaintiffs assertion of immediate financial harm. If this is plaintiffs only contract, then it plainly would be injured, assuming the Air Force’s only option is to exercise the next option term.
We decline to give anything like conclusive weight to this factor, however, for two reasons. First, the injury to plaintiff is being triggered by the failure of the Air Force to exercise the next option year of the contract. In other words, the injury could be happening not because of an alleged procurement error, but if the Air Force simply decided not to obtain the services that plaintiff has been providing. Plaintiff should have been aware that the government was under no obligation to exercise additional options. See 48 C.F.R. § 2.101 (2011). If an option was not exercised, plaintiff would no longer earn profits under the contract and potentially be subject to penalties related to the pension plan.
Second, plaintiff has known about the results of the Air Force’s cost comparison process and the anticipated shift to in-sourcing since February 2011. Nevertheless it chose to wait until 28 days before the end of the last option extension to file its complaint. Equity aids the vigilant, not those who slumber on their rights. See LaForge & Budd Const. Co., Inc. v. United States, 48 Fed.Cl. 566, 570 (2001) (citing Cornetta v. United States, 851 F.2d 1372, 1375 (Fed.Cir.1988)); see also TRW Envtl. Safety Sys., Inc. v. United States, 16 Cl.Ct. 516, 519 (1989).
B. Likelihood of success on the merits
Although the likelihood of success need not be shown to a mathematical certainty, plaintiff must nevertheless demonstrate that it has a reasonable likelihood of success. The gravamen of plaintiffs complaint is that, although a cost comparison was done, it was done improperly because it assumed the use of civilian employees, whereas the Air Force is now contemplating, at least temporarily, using some military personnel.
We are not persuaded that plaintiffs argument is a likely winner. First, the major *211premise — that no military personnel cost comparison was performed — appears to be flawed based on Mr. Gasaway’s declaration. He states that the “DTM-COMPARE model determined that use of 74 military would not exceed the cost of the contract operation.” Gasaway Decl. ¶ 5. It thus appears that at least some form of military cost comparison was performed. Moreover, Mr. Gasaway explains that, due to hiring controls, the Air Force anticipates that it will not be able to hire the 93 civilian employees needed to perform the services during conversion. To mitigate this unexpected hiring problem, the Air Force “determined military manpower would be used temporarily to reduce mission risk during the transition.” Gasaway Decl. ¶ 5. He further states that, “[t]he plan is to decrease the number of military [personnel] and increase the number of civilian authorizations, not to exceed 93 Full-time Equivalents as soon as possible.” Gasaway Decl. ¶ 5. It appears, then, that the use of military personnel is a temporary stop-gap until the Air Force is capable of hiring all of the civilian personnel it needs to perform the services. In any event, plaintiff has not persuaded us, on first blush, that what the Air Force has done fails to comply with DTM 09-007 or is otherwise arbitrary and capricious.
C. Harm to the government
The defendant has filed five declarations from Air Force officers addressing the likely harm that an injunction against in-sourcing would cause to Air Force operations and military readiness. Two of the declar-ants, Lt. Col. Steven J. Minkin, Chief of Budget Operations, [¶] Pacific Air Force, and Lt. Col. Patricia Csánk, Commander of. the 673rd LRS, 673rd Air Base Wing, JBER, made statements directly addressing the impact an injunction would have on national defense and national security. Lt. Col. Csánk stated that an injunction would have a “harmful and immediate impact on JBER’s combat and deployment readiness for both exercises and real world requirements.” Csánk Decl. ¶ 4. Lt. Col. Csánk further states that, due to the employees ESS has lost, if an injunction mandated ESS continue providing the services, it would “unduly jeopardize the 673rd Air Base Wing and the 3rd Wing’s combat and mobility aircraft operational missions and overall readiness posture _” Csánk Decl. ¶ 7.
In response, plaintiff offers Mr. Brunin’s declaration that employees from other contracts performed by ESS’s parent company could be relocated to perform on the JBER contract. We note that this is in direct tension with his statement elsewhere that “ESS will not be in a position to hire replacement personnel for these vacant positions during the remainder of the Contract term.” Brunin 2d Decl. ¶ 9. Moreover, “starting June 4, and increasing in severity from June 14 through June 18, ESS’s ability to perform the Contract will be materially impaired by these Air Force actions.” Brunin 2d Decl. ¶ 11.
Even if plaintiff could perform sufficiently notwithstanding the lack of employees, however, the Air Force stated that it does not have the money to pay plaintiff past June 29, 2012 without affecting military readiness. The lack of budgeted funds to pay plaintiff past June 29, 2012, is further supported by the declaration from Lt. Col. Steven J. Min-kin, Chief of Budget Operations, [¶] Pacific Air Force, Joint Base Pearl Harbor-Hickam, who is responsible for budgeting across the pacific theater. He states that if the transition was stopped, because there exists no more funding for the contract, the Air Force would have to “cancel planned facility renovation projects across the Pacific theater, rescind projects that have already been advertised, and incur the subsequent termination fees associated with pulling solicitations from the open market.” Minkin Deck ¶ 8. Lt. Col. Minkin recites that during an injunction, “the United States military would face financial constraints and uncertainty that would harm military readiness and national security.” Minkin Deck ¶ 9.
In response to the defendant’s claim that the Air Force would have to reallocate funds from other projects, Mr. Brunin claims that the Air Force’s Warehouse Shutdown Plan, a part of the transition process, calls for increasing inventory by 200%. Mr. Brunin estimates the cost of these supplies at $2.9 million, and claims that if the injunction is *212granted, there would be no need for the increase in supplies. Mr. Brunin proposes that this $2.9 million could fund the continuance of services by ESS for approximately 3-4 months. Thus, Mr. Brunin states there would be no harm to the Air Force by issuing an injunction because there are funds available for plaintiff to continue the contract. We decline to give any weight to this assertion. The court is not in a position to second-guess the Air Force’s decisions about how to allocate limited funds. Nor do we think it is Mr. Brunin’s position to do so.
The effect on military readiness is further exacerbated by the summer military exercises that are planned for JBER. The Air Force notes that it is currently involved in a “multinational RED FLAG” exercise. The 673rd Logistics Readiness Squadron, stationed at JBER, “plays a significant role in these exercises in supplying and sustaining aircraft parts for numerous [United States] and mul-ti-national air forces’ weapons systems as well as providing various types of ground and aviation supplies_” Csánk Decl. ¶ 5. Lt. Col. Csánk notes that this exercise significantly increases the demand for base supply services. Lt. Col. Csánk doubts plaintiffs ability to handle this increase in demand due to its loss of employees, as confirmed by Mr. Brunin. In fact, Lt. Col. Csánk states that degradation of services has already been noticed and required the government to supplement plaintiffs employees during the most recent Operation Readiness Exercise and real-world contingency deployment operations.
Defendant points out that the harm the Air Force would suffer would be worse now than if an injunction had been issued long before the Air Force began the process of converting the services. Plaintiff has known of the Air Force’s intention to in-source the contract since February 2, 2011, after the cost comparison had been completed. On February 3, 2012, the Air Force informed plaintiff that it was unlikely to exercise the remaining options and predicted that the contract would expire on June 29, 2012. In February 2012, the Air Force even requested that plaintiff prepare a comprehensive transition plan. Despite these warnings, plaintiff did not chose to file a bid protest until June 1, 2012, less than a month before their contract expired and the Air Force in-sourcing initiative would take full effect. Undue delay is relevant in determining the extent to which it has magnified the harm to defendant. See Software Testing Solutions, Inc. v. United States, 58 Fed.Cl. 533, 535 (2003) (noting that undue delay may be- considered in the multi-factored injunctive analysis); see also Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed.Cir.2007).
D. The public interest
The public interest is obviously served by requiring the Air Force to follow the law with respect to performing the requisite cost analysis. Plaintiff recognizes that a cost-comparison was done, and defendant asserts that it was done in such a way that obviates plaintiffs concerns about the use of military personnel. Under the circumstances, and in light of the government’s unrebutted assertions that an injunction would jeopardize national security and national defense, this factor does not favor entry of an injunction.
In sum, none of the factors militate in favor of an injunction. While plaintiff clearly has an interest in maintaining its contract, it was slow to enforce its rights. Nor does it appear likely that plaintiff will succeed on its narrow substantive claim. The disorder that would result from an injunction is well established by the government, in part because of the undue delay. And finally, there is no overriding public interest in ignoring the impact on the Air Force’s concern for national security and military readiness. Accordingly, injunctive relief is inappropriate.
CONCLUSION
For the reasons stated above, we deny defendant’s motion to dismiss. We also deny plaintiffs motion for a preliminary injunction. The parties shall submit a joint status report by July 13, 2012, detailing how they would like to proceed.
.The following facts are drawn from the complaint, plaintiff’s motion for preliminary injunction, defendant’s motion to dismiss, and declarations filed in support of the parties’ respective motions. Unless otherwise stated, the facts are not in dispute. The parties agreed that it would be unnecessary for the government to produce the administrative record until after the present motions are resolved.
. DTM-COMPARE is a cost-comparison software tool provided by the Air Force Manpower Agency-
. The Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub.L. 111-383, 124 Stat. 4127, 4184 (Jan. 7, 2011), amended 10 U.S.C. § 2463 by specifically requiring the Directive-Type Memorandum 09-007 analysis.
. We note also that Congress, in adopting 28 U.S.C. § 1491(b)(5), allowed government employees to intervene in a bid protest under the reverse scenario, i.e., when the government decides to "out-source” services provided by government employees to contractors by conducting a "public-private competition” under Office of Management and Budget Circular A-76. Circular A-76 provides that the government, as a general matter, is to procure services from outside contractors if less costly than government employees. See Am. Fed'n of Gov't Emps., AFL-CIO v. United States, 258 F.3d 1294, 1296 (Fed.Cir.2001). As a result, when procuring commercial services or products, Circular A-76 requires that a cost comparison be done by comparing a bid from a private sector source with the cost of government facilities and personnel, i.e., a "public-private competition.” See id. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218270/ | OPINION AND ORDER
SWEENEY, Judge.
This lawsuit is plaintiffs’ latest attempt to avoid the payment of federal income taxes. Because plaintiffs have not alleged any facts or cited any law that would bring their complaint within this court’s jurisdiction, summary dismissal is appropriate.
I. BACKGROUND
According to the available court records,1 plaintiffs’ odyssey began in the late-1990s, when plaintiff Barry L. Cox pled guilty to making a false statement to the Internal Revenue Service (“IRS”) in violation of 18 U.S.C. § 1001.2 Mr. Cox’s sentence, imposed on May 3, 1999, included incarceration for twelve months and one day and restitution to the IRS in the amount of $232,914. The restitution included the federal income taxes he owed for the 1988, 1989, and 1990 tax years. Mr. Cox appealed the sentence, contending that he had no tax liability for those *215three years.3 The United States Court of Appeals for the Ninth Circuit rejected that argument and upheld the sentence.
Upon his release from prison, Mr. Cox filed several Federal Tort Claims Act suits in federal district court against the United States, the IRS, the United States Department of Justice, and the United States Probation Office.4 All three suits were dismissed, with the district court noting in one of its dismissal orders that Mr. Cox’s true intent was to collaterally attack his criminal conviction. Mr. Cox appealed that dismissal order, and the United States Court of Appeals for the Fifth Circuit dismissed the appeal as frivolous.5 While that appeal was pending, Mr. Cox again attempted to challenge his criminal conviction based on his contention that he had no tax liability for the 1988, 1989, and 1990 tax years.6 The district court dismissed the suit, finding Mr. Cox’s arguments to be frivolous.
In May 2004, the United States filed suit against plaintiffs in federal district court to collect the unpaid taxes for the 1988, 1989, and 1990 tax years.7 In that suit, the United States sought a judgment that plaintiffs owed back taxes, penalties, and interest in the amount of $320,926. It also sought a judgment that its tax liens were valid, that the tax liens could be foreclosed, that plaintiffs’ property could be sold, and that the sale proceeds could be used to pay down plaintiffs’ tax debt. As memorialized on the docket and in three reports and recommendations issued by the federal magistrate judge assigned to the ease, plaintiffs filed a litany of motions and other documents in an attempt to avoid their tax liability. The district court rejected the arguments contained in those filings, concluding that plaintiffs owed the back taxes described by the United States, that the United States’ tax liens were valid, and that plaintiffs’ property could be sold to satisfy their tax debt. As a result, the United States foreclosed on plaintiffs’ home, the proceeds were applied to plaintiffs’ tax debt, and the district court issued a deficiency judgment against plaintiffs for the balance of that debt — $206,585.79.
In June 2005, while the collection action was pending, plaintiffs filed a voluntary petition for bankruptcy.8 The IRS filed a proof of claim for, among other things, the back taxes owed by plaintiffs for the 1988, 1989, and 1990 tax years. And, the United States Attorney’s Office filed a proof of claim for the restitution owed by Mr. Cox as a result of his criminal conviction, which included the same back taxes sought by the IRS. Throughout the bankruptcy proceedings, plaintiffs continued to advance their argument that they had no tax liability for the 1988, 1989, and 1990 tax years. Plaintiffs eventually voluntarily dismissed their bankruptcy petition. The IRS then sent the bankruptcy trustee a notice of levy with respect to the funds being held by the trustee on plaintiffs’ behalf. Plaintiffs challenged the IRS’s authority to issue notices of levy, but the bankruptcy court concluded that the notice of levy sent to the trustee was proper and directed the trustee to turn over the funds in his possession to the IRS.
Then, in June 2010, Mr. Cox filed suit in another federal district court against, among others, the United States, the United States Department of the Treasury, the Treasury Inspector General for Tax Administration, and the IRS challenging his income tax liability.9 The district court rejected Mr. Cox’s arguments and dismissed the suit. Plaintiffs subsequently turned their attention to the *216United States Court of Federal Claims (“Court of Federal Claims”).
On June 13, 2012, thirteen years after Mr. Cox was ordered to pay back taxes to the IRS as restitution, plaintiffs filed the instant suit. They allege a wide variety of claims in their rambling, 106-page complaint, but the bottom line is that they do not believe that they are required to pay federal income taxes. They seek actual damages equal to the value of their property levied by the United States, punitive damages, statutory damages, .an award for pain and suffering, declaratory and injunctive relief, and attorney’s fees and costs. Plaintiffs also demand a jury trial.10 Notably, plaintiffs do not seek a refund of any income taxes that they have already paid.
II. DISCUSSION
A. Subject Matter Jurisdiction
Whether the court has jurisdiction to decide the merits of a case is a threshold matter. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). The parties or the court sua sponte may challenge the existence of subject matter jurisdiction at any time. Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004).
When considering whether to dismiss a complaint for lack of jurisdiction, a court assumes that the allegations in the complaint are true and construes those allegations in the plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). A pro se plaintiffs complaint, “ ‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal pleadings drafted by lawyers’_” Hughes v. Rowe, 449 U.S. 5, 10 n. 7, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). However, a pro se plaintiff is not excused from meeting basic jurisdictional requirements. See Henke, 60 F.3d at 799 (“The fact that [the plaintiff] acted pro se in the drafting of his complaint may explain its ambiguities, but it does not excuse its failures, if such there be.”). In other words, a pro se plaintiff is not excused from his or her burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988).
B. The United States as Defendant
As an initial matter, the court addresses plaintiffs’ allegations against the IRS, the commissioner of the IRS, the Financial Management Service of the United States Department of the Treasury, an IRS employee, the Tax Inspector General for Tax Administration, the Tax Division of the United States Department of Justice, and the United States Attorney General. It is well settled that the United States is the only proper defendant in the Court of Federal Claims. See 28 U.S.C. § 1491(a)(1) (2006); R. U.S. Ct. Fed. Cl. 10(a); Stephenson v. United States, 58 Fed.Cl. 186, 190 (2003). It necessarily follows that this court does not possess jurisdiction to hear claims against individual federal government officials. See Brown v. United States, 105 F.3d 621, 624 (Fed.Cir.1997). Indeed, the jurisdiction of the Court of Federal Claims “is confined to the rendition of money judgments in suits brought for that relief against the United States, ... and if the relief sought is against others than the United States, the suit as to them must be ignored as beyond the jurisdiction of the court.” United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Accordingly, plaintiffs’ *217claims against all parties except the United States are dismissed for lack of jurisdiction.
C. Plaintiffs’ Allegations
Plaintiffs allege that the United States has violated several amendments to the United States Constitution (“Constitution”), a wide range of federal statutes, and a number of federal regulations, clearly disregarding the limited ability of the Court of Federal Claims to entertain suits against the United States. It is axiomatic that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued.” Id. at 586, 61 S.Ct. 767. The waiver of immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).
The Tucker Act, the principal statute governing the jurisdiction of this court, waives sovereign immunity for claims against the United States, not sounding in tort, that are founded upon the Constitution, a federal statute or regulation, or an express or implied contract with the United States. 28 U.S.C. § 1491(a)(1). However, the Tucker Act is merely a jurisdictional statute and “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Instead, the substantive right must appear in another source of law, such as a “money-mandating constitutional provision, statute or regulation that has been violated, or an express or implied contract with the United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed.Cir.1994) (en bane). Thus, the court analyzes whether the amendments, statutes, and regulations cited by plaintiffs constitute money-mandating sources of jurisdiction.
1. Allegations Under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution
Plaintiffs allege that the United States violated the rights afforded to them by several amendments to the Constitution. First, they contend that the United States violated their right to redress their grievances under the First Amendment. However, because the First Amendment, standing alone, does not obligate the United States to pay money damages, it cannot serve as the basis for jurisdiction in the Court of Federal Claims. See United States v. Connolly, 716 F.2d 882, 887 (Fed.Cir.1983).
Second, plaintiffs allege that the United States violated their right to due process under the Fifth and Fourteenth Amendments. But because neither Due Process Clause is money-mandating, they do not provide a basis for jurisdiction in this court. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.Cir.1995); Mullenberg v. United States, 857 F.2d 770, 773 (Fed.Cir.1988).
Third, plaintiffs contend that the requirement to submit an income tax return to the IRS under penalty of perjury violates their right against self-incrimination under the Fifth Amendment. The Fifth Amendment’s Self-Incrimination Clause, however, does not provide for money damages and therefore does not constitute a basis for jurisdiction in the Court of Federal Claims. See Betz v. United States, 40 Fed.Cl. 286, 292-93 (1998).
Finally, plaintiffs contend that the United States’ tax liens and levies constitute unreasonable seizures of their property under the Fourth Amendment. But, like the other amendments relied upon by plaintiffs, the Fourth Amendment’s Search and Seizure Clause does not mandate the payment of money damages. Therefore, it cannot provide a basis for jurisdiction in the Court of Federal Claims. See Brown, 105 F.3d at 623; cf. Crocker v. United States, 125 F.3d 1475, 1476 (Fed.Cir.1997) (“The Court of Federal Claims ... does not have jurisdiction to hear ... due process or seizure claims under the Fifth Amendment to the United States Constitution.”).
In sum, the court lacks jurisdiction to entertain plaintiffs’ constitutional allegations.
2. Allegations That May Only Be Entertained in Federal District Court
Plaintiffs next allege that the United States violated a number of statutes and their implementing regulations that provide *218for or address civil remedies in federal district court. For example, they assert violations of the Freedom of Information Act, 5 U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a, and the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p. They also allege violations of 26 U.S.C. § 7433 (“Civil damages for certain unauthorized collection actions”), 26 U.S.C. § 7604 (“Enforcement of summons”), 28 U.S.C. § 754 (“Receivers of property in different districts”), 28 U.S.C. § 1331 (“Federal question”), 28 U.S.C. § 1343 (“Civil rights and elective franchise”), 28 U.S.C. § 1391 (“Venue generally”), and 42 U.S.C. § 1983 (“Civil action for deprivation of rights”). However, the Court of Federal Claims is not a district court. See Ledford v. United States, 297 F.3d 1378, 1382 (Fed.Cir.2002) (per curiam); Alford v. United States, 3 Cl.Ct. 229, 230 (1983). Thus, these statutes and regulations do not provide for jurisdiction in this court.
3. Allegations of Criminal Conduct
Plaintiffs also assert that the United States committed criminal acts and violated federal criminal statutes in administering the federal income tax laws. In particular, they contend that the United States blackmailed judges, IRS criminal investigators, and United States Attorneys, and violated 18 U.S.C. § 872 (“Extortion by officers or employees of the United States”) and 18 U.S.C. § 1341 (“Frauds and swindles”). However, the Court of Federal Claims lacks jurisdiction to entertain criminal matters. See Joshua v. United States, 17 F.3d 378, 379-80 (Fed.Cir.1994) (affirming that the Court of Federal Claims had “ ‘no jurisdiction to adjudicate any claims whatsoever under the federal criminal code’ ”); Kania v. United States, 650 F.2d 264, 268 (Ct.Cl.1981) (noting that “the role of the judiciary in the high function of enforcing and policing the criminal law is assigned to the courts of general jurisdiction and not to this court”). Thus, the court lacks jurisdiction over these allegations.
4. Allegations of Tortious Conduct
Next, plaintiffs contend that the United States has engaged in tortious conduct, including harassment and persecution, malfeasance, fraud, abuse, and deception, in
administering the federal income tax laws. However, the Court of Federal Claims does not possess jurisdiction to entertain claims sounding in tort. See 28 U.S.C. § 1491(a)(1); Brown, 105 F.3d at 623.
5.Allegations of Mismanagement and Incompetence
Plaintiffs next assert that the United States is guilty of mismanagement, incompetence, and a betrayal of the public’s trust in its administration of federal income tax laws. These allegations generally can be described as breaches of fiduciary duty. However, the mere administration of federal income tax laws does not create a fiduciary relationship between the United States and individual taxpayers because federal income tax laws generally do not designate the United States as a trustee, identify individual taxpayers as beneficiaries, or describe a trust corpus. See United States v. Mitchell, 463 U.S. 206, 225, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (noting that a fiduciary relationship arises when there is a common-law trust, i.e., when there is a trustee, a beneficiary, and a trust corpus). Accordingly, there is no legal basis for plaintiffs’ contentions. Moreover, to the extent that plaintiffs’ allegations regarding a breach of fiduciary duty sound in tort, the court lacks jurisdiction to consider them. See 28 U.S.C. § 1491(a)(1); Brown, 105 F.3d at 623; see also Cleveland Chair Co. v. United States, 557 F.2d 244, 246 (Ct.Cl.1977) (“[Plaintiffs’ claim for damages arising out of defendant’s breach of a fiduciary duty must be grounded in a contractually based obligation to plaintiffs to succeed here.”).
6.Remaining Statutory and Regulatory Allegations
Plaintiffs also allege violations of various other statutes and their implementing regulations. For example, they allege that the United States violated the Paperwork Reduction Act of 1995, but that statute does not mandate the payment of money damages. See Pac. Nat’l Cellular v. United States, 41 Fed.Cl. 20, 30 (1998). They also allege a violation of the Citizens Protection Act of 1998, 28 U.S.C. § 530B, another stat*219ute that does not mandate the payment of money damages. Nor do 28 U.S.C. § 3101 or 28 U.S.C. § 3102, both part of the Federal Debt Collection Procedures Act of 1990, mandate the payment of money damages; indeed, the latter provision merely allows a debtor to seek the reduction or dissolution of a prejudgment attachment in the court where the writ of attachment was authorized. Other statutes cited by plaintiffs that do not mandate the payment of money damages include 28 U.S.C. § 351 (“Complaints; judge defined”), 28 U.S.C. § 364 (“Effect of felony conviction”), and 28 U.S.C. § 959 (“Trustees and receivers suable; management; State laws”). Because none of these statutes is money-mandating, they do not provide a basis for jurisdiction in the Court of Federal Claims.
Plaintiffs further allege the violation of a number of statutes in the Internal Revenue Code, along with their implementing regulations, that concern tax assessment, tax collection, penalties, liens, and levies. See, e.g., 26 U.S.C. §§ 6201, 6212, 6301, 6303, 6321-6324, 6330-6331, 6334, 6501-6502, 6751, 7401-7403 (2006). However, the court’s jurisdiction under the Internal Revenue Code is generally limited to the adjudication of tax refund suits,11 see 26 U.S.C. § 7422; 28 U.S.C. § 1346(a)(1), and this case is not such a suit. The court therefore lacks jurisdiction over plaintiffs’ claims arising under the Internal Revenue Code.
7. Collateral Attack on Prior Judgments
In general, plaintiffs’ allegations amount to nothing more than a collateral attack on pri- or judgments establishing their federal income tax liability and permitting the United States to recover those taxes that they have not yet paid. As explained by the United States Supreme Court:
Congress has prescribed a primary route, by appeal as of right and certiorari, through which parties may seek relief from the legal consequences of judicial judgments. To allow a party who steps off the statutory path to employ ... [a] collateral attack on the judgment would — quite apart from any considerations of fairness to the parties — disturb the orderly operation of the federal judicial system.
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 27, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). Plaintiffs, in each of the previous cases in which they were involved, had the opportunity to appeal the judgments, and they either appealed and lost, or failed to appeal at all. They cannot now attack those judgments in the Court of Federal Claims. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (noting that under the doctrine of issue preclusion, which is also referred to as collateral estoppel, a party is foreclosed from relitigating an issue that has already been decided); Joshua, 17 F.3d at 380 (“[T]he Court of Federal Claims does not have jurisdiction to review the decisions of district courts ... relating to proceedings before those courts.”).
D. Plaintiffs’ Request for Relief
Plaintiffs request several types of relief: a writ of mandamus, declaratory and injunctive relief, and various forms of money damages. However, because plaintiffs have not asserted any claims against the United States over which this court has jurisdiction, they are not entitled to obtain any of their requested relief. Moreover, plaintiffs have not demonstrated that their right to a writ of mandamus is “clear and indisputable,” Kerr v. U.S. Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976), and, except in situations not relevant here,12 the court is not *220authorized to award declaratory or injunctive relief in the absence of an award of money damages, Nat’l Air Traffic Controllers Ass’n v. United States, 160 F.3d 714, 716 (Fed.Cir.1998).
III. CONCLUSION
The court has combed through plaintiffs’ complaint and has not been able to discern any claim over which it could exercise jurisdiction.13 Accordingly, for the reasons set forth above, the court DISMISSES plaintiffs’ complaint. The clerk shall enter judgment accordingly.
IT IS SO ORDERED.
. A search of PACER — "an electronic public access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts” — revealed multiple civil actions, one criminal action, and one bankruptcy action relevant to this matter.
. United States v. Cox, No. 2:98-cr-00391-SVW (C.D.Cal. filed Apr. 14, 1998).
. United States v. Cox, 225 F.3d 664 (9th Cir.2000) (unpublished table opinion).
. Cox v. United States, No. 5:01-cv-00708-DK4 (W.D.Tex. filed Aug. 7, 2001); Cox v. United States, No. 5:01-cv-00350-HFG (W.D.Tex. filed Apr. 30, 2001); Cox v. United States, No. 5:00-cv-01433-HFG (W.D.Tex. filed Dec. 11, 2000).
. Cox v. United States, 48 Fed.Appx. 105 (5th Cir.2002) (unpublished per curiam opinion).
. Cox v. United States, No. 5:02-cv-00468-FB (W.D.Tex. filed May 14, 2002).
. United States v. Cox, No. 5:04-cv-00421-FB (W.D.Tex. filed May 12, 2004).
. In re Cox, No. 05-53666-LMC (Bankr.W.D.Tex. filed June 27, 2005).
. Cox v. United States, No. 2:10-cv-01302-JWS (D.Ariz. filed June 21, 2010).
. The court is without authority to grant plaintiffs’ request for a jury trial. "It has long been settled that the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government.” Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981).
. The Court of Federal Claims possesses jurisdiction to entertain a few other types of tax-related suits, but the statutes authorizing such suits do not apply to this case. See, e.g., 26 U.S.C. § 7428 ("Declaratory judgments relating to status and classification of organizations under section 501(c)(3), etc.”); 28 U.S.C. § 1508 ("Jurisdiction for certain partnership proceedings”).
. See 28 U.S.C. § 1491(a)(2) (providing the court with jurisdiction to issue, "as incident of and collateral to” an award of money damages, "orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records”); id. (providing the court with jurisdiction to render judgment in nonmonetary disputes arising under the Contract Disputes Act of 1978); id. § 1491(b)(2) (providing the court with jurisdic*220tion to award declaratory and injunctive relief in bid protests).
. Even if the court possessed jurisdiction over ■plaintiffs’ complaint, almost all of plaintiffs’ substantive allegations are frivolous. Indeed, they amount to nothing more than pedestrian tax protestor fare. It is well established that such contentions lack merit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218272/ | OPINION AND ORDER
LETTOW, Judge.
In 1997, plaintiff Maurice Sykes was convicted in the District of Columbia Superior Court of first-degree felony murder while armed. Following denial by the trial court of motions for post-conviction relief, his conviction was reversed by the Distinct of Columbia Court of Appeals on grounds that permitted his retrial. See Sykes v. United States, 897 A.2d 769 (D.C.2006). He was not, however, retried. He subsequently filed an application for a certificate of innocence from the District of Columbia Superior Court but that application was denied on February 9, 2012. Now, in this court, Mr. Sykes seeks a certificate of innocence and damages from the United States (“the government”) for his period of incarceration. The government has moved to dismiss Mr. Sykes’ complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
*232BACKGROUND
Mr. Sykes and two co-defendants were convicted of first-degree felony murder while armed, for a homicide committed in front of the Bulgarian Embassy in Washington, D.C. Sykes, 897 A.2d at 770-71. After conviction, Mr. Sykes sought post-conviction relief without success. On appeal from denial of that relief, however, his conviction was reversed by the District of Columbia Court of Appeals on the ground that the government had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose in timely fashion that two non-testifying potential defense witnesses had given grand jury testimony favorable to Mr. Sykes. Sykes, 897 A.2d at 778. The conviction had been premised upon testimony of three eyewitnesses plus that of a witness who averred that he had heard Mr. Sykes discuss the murder on the evening of the crime. Id. at 771, 779-81 & n. 7. The two potential witnesses had testified before the grand jury that they were present during the discussion and denied hearing of the murder, but those witnesses were not located and subpoenaed to testify at the trial, in part because the prosecutor did not apprise the defense of their favorable grand jury testimony until after trial had begun. Rather, near the close of the trial, portions of their grand jury testimony were read into evidence. Id. at 776. The court of appeals ruled that this prevented Mr. Sykes from presenting a complete defense. Id. at 780. After finding a “reasonable probability” that the outcome of the case would have been different had the government complied with Brady, the court of appeals set aside the conviction, id. at 779-80, but it remanded the ease for a new trial because it was “satisfied that, if believed, there was sufficient evidence, based on the testimony of Mr. Ignaliev, Mr. Petkov, and Ms. Willis [the three eyewitnesses], for example, on which reasonable jurors could have found Mr. Sykes guilty beyond a reasonable doubt,” id. at 781 n. 7. On remand, the government chose not to retry the case against Mr. Sykes due to a lack of available evidence. Compl. ¶ 35. Consequently, Mr. Sykes was released from incarceration. Compl. ¶ 35. On February 9, 2012, Mr. Sykes’ motion for a certificate of innocence was denied by Judge Wendell Gardner, Jr., of the District of the Columbia Superior Court, based upon the ambiguous language of the appellate court’s reversal. Compl. ¶ 37.
By his complaint in this court, Mr. Sykes seeks both a certificate of innocence and damages for his incarceration. Among other things, Mr. Sykes avers that Judge Gardner should have recused himself from hearing Mr. Sykes’ motion for a certificate of innocence due to the circumstance that the “[p]laintiff[’]s defen[s]e eounsel[’]s law firm” had represented Judge Gardner and his family in an earlier suit. Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) ¶ 7. Because of this alleged conflict, Mr. Sykes argues that he was wrongfully denied a certificate of innocence and is entitled to such a certificate from this court. See id. ¶ 6; see also Compl. ¶ 39. In support of his claim, Mr. Sykes argues that the government violated his due process right to a fair trial and other constitutional rights relating “to liberty[and] to freedom.” Compl. ¶ 16. Specifically, Mr. Sykes asks this court to award him damages under 28 U.S.C. § 1495 for his alleged wrongful incarceration. Compl., Prayer for Relief; Compl. ¶ 2.
STANDARDS FOR DECISION
Subject matter jurisdiction must be established before a court may proceed to the merits of an action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Thus, if a court finds that jurisdiction is lacking at any point in time, the case must be dismissed, see Rule 12(h)(3) of the Rules of the Court of Federal Claims (“RCFC”), or, alternatively, transferred to another federal court in which the action could have been brought, see 28 U.S.C. § 1631. The plaintiff has the burden of establishing jurisdiction by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). In addressing a motion to dismiss for lack of subject matter jurisdiction, the court “must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff.” *233Trusted, Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995)).
When considering a motion to dismiss for failure to state a claim, the court also construes the complaint’s allegations in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). That is, the court must inquire whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).1
ANALYSIS
A statute, 28 U.S.C. § 1495, specifically grants this court “jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned.” Section 1495, however, “must be read in conjunction with 28 U.S.C. § 2513.” Humphrey v. United States, 52 Fed.Cl. 593, 596 (2002), aff'd, 60 Fed.Appx. 292 (Fed.Cir.2003) (per curiam). Section 2513 provides in pertinent part that—
(a) Any person suing under [SJection 1495 of this title must allege and prove that:
(1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.
(b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received.
28 U.S.C. § 2513(a)-(b). The resulting requirement for relief under these paired statutes has “always been strictly construed.” Vincin v. United States, 468 F.2d 930, 933 (Ct.Cl.1972). As a result, an unjust conviction and imprisonment claim must be established by either a certificate granted by the court of conviction of a pardon. Humphrey, 52 Fed.Cl. at 596 (citing Hadley v. United States, 66 F.Supp. 140, 141 (Ct.Cl.1946)). Such a certificate or pardon must “either explicitly or by factual recitation” state that the plaintiff has satisfied the requirements of Section 2513. Id. at 597 (citing Andolschek v. United States, 77 F.Supp. 950, 951 (Ct.Cl.1948)). In acting on a claim predicated upon Sections 1495 and 2513, this court “does not have the power to review and overturn convictions or to review in detail the facts surrounding a conviction or imprisonment.” Zakiya v. United States, 79 Fed.Cl. 231, 234-35 (2007).
Mr. Sykes was denied a certificate of innocence from the D.C. Superior Court on February 9, 2012. Compl. ¶ 37. Although Mr. Sykes contests that denial on the ground that the judge of the Superior Court who heard his claim allegedly had a conflict of interest, that alleged impropriety does not alter the result insofar as this court is concerned. No juridical power inheres in this court to review a decision and judgment of the D.C. Superior Court in acting on a request for a certificate of innocence. See Andolschek, 77 F.Supp. at 951. Consequently, because Mr. Sykes has failed to produce a certificate of innocence and cannot obtain one *234here, his claim under Section 1495 must fail. A plaintiff suing under 28 U.S.C. § 1495 must prove the requirements set out in 28 U.S.C. § 2513 as a prerequisite to relief. See Grayson v. United States, 141 Ct.Cl. 866, 869 (1958). In short, although Mr. Sykes has shown that his conviction was reversed by the District of Columbia Court of Appeals on March 9, 2006, he has failed to prove that “[h]e did not commit any of the acts charged,” 28 U.S.C. § 2513(a)(2). Only a pardon or a certifícate of innocence from the pertinent court suffices for purposes of Section 2513(b). Mr. Sykes has not, and can not, plead that he has obtained a pardon or certificate of innocence.
Prior to the Federal Circuit’s decision in Fisher v. United States, 402 F.3d 1167, 1171-76 (Fed.Cir.2005) (en banc in pertinent part), Mr. Sykes’ claim based upon Sections 1495 and 2513 would have been dismissed for lack of subject matter jurisdiction. See Grayson, 141 Ct.Cl. at 869 (“[W]e do not have jurisdiction of the claim [under Sections 1495 and 2513] as set out in plaintiffs petition.”); Humphrey, 52 Fed.Cl. at 598-99 (same disposition). Some judges applied Grayson even after Fisher. See Johnson v. United States, 411 Fed.Appx. 303, 306 (Fed.Cir.2010) (“The court has jurisdiction under § 1495 only if a plaintiff alleges facts sufficient to meet the requirements of § 2513.”) (non-precedential disposition); Wood v. United States, 91 Fed.Cl. 569, 572-78 (2009) (holding that submission of certificate of innocence is a prerequisite to jurisdiction of this court over action seeking damages for unjust conviction). Fisher, however, instructs that this court acquires subject matter jurisdiction “as a result of the initial determination that plaintiffs cause rests on a money-mandating source.” 402 F.3d at 1175. Then, if the court concludes “that plaintiffs case does not fit within the scope of the [money-mandating] source, [the result] is simply this: plaintiff loses on the merits for failing to state a claim upon which relief can be granted.” Id. at 1175-76; see also Adair v. United States, 497 F.3d 1244, 1251 (Fed.Cir.2007) (“If a trial court concludes that the particular statute simply is not money-mandating, then the court shall dismiss the claim for lack of subject matter jurisdiction under Rule 12(b)(1). If, however, the court concludes that the facts as pled do not fit within the scope of a statute that is money-mandating, the court shall dismiss the claim on the merits under Rule 12(b)(6) for failing to state a claim upon which relief can be granted.” (citations omitted)); cf. Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1354 (Fed.Cir.2011) (“To the extent a successful claim against the government requires compliance with all statutory elements of the claim, failure of proof of an element of the cause of action means the petitioner is not entitled to the relief he seeks. To conclude in such a ease that the petitioner loses because the forum is ‘without jurisdiction’ is to obscure the nature of the defect. It would be more accurate to conclude that the petitioner has failed to prove the necessary elements of a cause for which relief could be granted.” (quoting Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687 (Fed.Cir.1992))); Sheppard v. United States, No. 11-295C, 2011 WL 6370078, at *7 n. 6 (Fed.Cl. Dec. 20, 2011) (noting the disparity between the result in Grayson and the disposition of Fisher).2 In light of Fisher, Adair, and Engage Learning, Mr. Sykes’ claim premised upon Sections 1495 and 2513 must be dismissed under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted.
Mr. Sykes also maintains that the government has violated his due process right to a fair trial as well as other constitutional rights relating to liberty and freedom. In this court, subject matter jurisdiction is not established by simply alleging a constitutional violation. Rather, the constitutional provision alleged to have been violated must be money-mandating. Ferreiro v. United States, 501 F.3d 1349, 1351-52 (Fed.Cir.2007) (citing Fisher, 402 F.3d at 1172 (en banc in pertinent part)). The Due Process Clauses of the Fifth and Fourteenth Amendments “do not obligate the [fjederal [gjovernment to pay money damages.” Carruth v. United *235States, 627 F.2d 1068, 1081 (Ct.Cl.1980) (citing Walton v. United States, 213 Ct.Cl. 755 (1977); Muehlen v. United States, 209 Ct.Cl. 690, 529 F.2d 533 (1976); Eastport S.S. Corp. v. United States, 372 F.2d 1002 (Ct.Cl.1967), abrogated in part on other grounds by Malone v. United States, 849 F.2d 1441, 1444-45 (Fed.Cir.1988)). Consequently, this court lacks jurisdiction over these claims.
Mr. Sykes also seeks damages for injuries allegedly suffered as a result of his wrongful incarceration, including loss of earning power, deprivation of liberty, and humiliation. Compl. ¶ 38-39. Without the benefit of 28 U.S.C. § 1495, these are bare tort claims. The Tucker Act excludes tort claims from this court’s jurisdiction. See Hernandez v. United States, 96 Fed.Cl. 195, 203-04 (2010) (holding that a prisoner’s “claims for ‘personal injuries,’ including ‘loss of liberty,’ physical and mental pain, emotional distress, anxiety, humiliation, and loss of employment, and wages” all sound in tort and are excluded from the court’s jurisdiction under the Tucker Act); see also, e.g., Brown v. United States, 105 F.3d 621, 623 (Fed.Cir. 1997).3 Consequently, these claims by Mr. Sykes, like those premised upon alleged constitutional violations, fail for lack of subject matter jurisdiction.
CONCLUSION
For the reasons stated, the government’s motion to dismiss is GRANTED. Mr. Sykes’ claim predicated upon 28 U.S.C. §§ 1495 and 2513 is dismissed for failure to state a claim upon which relief can be granted. Mr. Sykes’ claims based upon alleged constitutional violations in connection with his trial and upon injuries suffered as a result of his incarceration are dismissed for lack of subject matter jurisdiction. The Clerk shall enter judgment accordingly. No costs.
It is so ORDERED.
. As a pro se litigant, Mr. Sykes’ pleadings are construed more liberally than are formal pleadings drafted by lawyers, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), but this liberality does not relieve Mr. Sykes of the "burden of establishing the court's jurisdiction by a preponderance of the evidence,” Riles v. United States, 93 Fed.Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002)), nor of the obligation to present a claim demonstrating his entitlement to relief, McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed.Cir.2007).
. To the same effect is the commentary set out in Lawrence Bluestone, Unjust Imprisonment Claims Before the Court of Federal Claims: The Presentation of a Certificate of Innocence Should Not Be Considered ‘Jurisdictional," 21 Fed. Cir. Bar J. 221 (2011).
. The Tucker Act grants this court "jurisdiction to render judgment upon 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). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218273/ | POST-TRIAL OPINION
FIRESTONE, Judge.
I. Background
This case involves Contract Disputes Act (“CDA”) claims totaling $69,320,563.94 by plaintiff Raytheon Company (“Raytheon”) against defendant the United States (“government”) related to Raytheon’s sale of certain business segments and the retention of assets and liabilities associated with the “defined benefit” pension plans1 of those seg*239ments. The segment sales occurred after the 1995 revisions to the Cost Accounting Standards (“CAS”) for Composition, Measurement, Adjustment, and Allocation of Pension Costs. 60 Fed.Reg. 16,534 (Mar. 30, 1995) (codified at 48 C.F.R. pts. 9903 and 99042). The segments at issue are (1) Aircraft Integrated Systems (“AIS”); (2) Optical Systems (“Optical”); (3) Aerospace Division (“Aerospace”); and the alleged segment (4) Printed Wire Fabrication (“PWF”).3 Pursuant to CAS 413-30(a)(20) the sale of each segment resulted in a “segment closing.”4 Under the requirements of CAS 413-50(c)(12), each segment closing required Ray-theon to calculate an adjustment of previously-determined pension costs — known as a “segment closing adjustment” — for each segment’s defined benefit pension plan or plans.5
In Allegheny Teledyne, the Federal Circuit explained the basic concepts for determining pension costs and for conducting segment closing calculations as follows:
CAS 412[] governs how a contractor determines its pension costs for each period-by the contractor’s best actuarial estimate of the plan’s anticipated earnings and benefit payments, taking into account the plan’s past experience and reasonable expectations .... [CAS 413] provides for two related types of adjustments to a contractor’s pension costs: (1) adjustments to account for the pension plan’s actuarial gains and losses and (2) adjustments to account for a closed segment’s pension surplus or deficit. Under normal circumstances, the actuarial gains or losses (differences between the estimates and actual experience) are amortized in equal annual installments over a fifteen-year period. This is not the case, however, when a “segment closing” occurs.... In the event a contractor closes a segment, ... CAS 413 provides that a contractor ... shall determine the difference between the actuarial liability for the segment and the market value of the assets allocated to the segment.... The difference between the market value of the assets and the actuarial liability for the segment represents an adjustment of previously-determined pension costs.
Allegheny Teledyne Inc. v. United States, 316 F.3d 1366, 1371 (Fed.Cir.2003) (‘Allegheny Teledyne”), cert. denied sub nom. Gen. Motors Corp. v. United States, 540 U.S. 1068, 124 S.Ct. 804, 157 L.Ed.2d 732 (2003) (citations and internal quotation marks omitted); Gates v. Raytheon Co., 584 F.3d 1062, 1065 (Fed.Cir.2009) (“Gates”) (“[Wjhen a business segment is closed, the contractor must calculate both the market value of the assets in the pension plan allocated to the segment and the actuarial accrued liability for the segment. The difference between the plan’s assets and liabilities indicates the amount by which the plan is over- or underfunded.”) (citation omitted).6 Arithmetically, *240the difference representing the adjustment may be positive, negative, or zero. As a practical matter, the results of these calculations, based on complex actuarial assumptions and the frequent swings of market investments, is rarely, if ever, zero. If the difference is positive, the government may be entitled to a share of the surplus from the contractor. See CAS 413-50(c)(12)(vi).7 If the difference is negative, the contractor may be entitled to a share of the deficit from the government. See id. In either event, the end goal pursued by both the government and the contractor is to settle-up and pay their fair shares to ensure that the pension plans at issue are fully-funded to meet the promises made to the employee-participants covered by the pension plans. “In short, the Government and contractor terminate the amortization and adjust the outstanding pension obligations by allocating any then-existing surplus or deficiency between them.” DIRECTV Grp., Inc. v. United States, 670 F.3d 1370, 1373 (Fed.Cir.2012).
All of the sales at issue in this case were part of a corporate restructuring program that Raytheon began in 2000.8 Several other segment sales that occurred during that period involved pension surpluses, and Raytheon paid the government for the surpluses attributable to the government’s contributions.9 In this case, Raytheon is seeking to recover alleged pension deficits attributable to government work that were identified by Ray-theon in its segment closing adjustments associated with the AIS, Optical, PWF, and Aerospace sales.10
In particular, Raytheon seeks $56,274,371,39 from the government in connection with sale of the AIS segment; $8,693,533.76 from the government in connection with the sale of the Optical segment; $2,933,151.69 from the government in connection with the sale of the Aerospace segment; and $1,419,507.10 from the government in connection with the sale of the alleged PWF segment. Following review by the Defense Contract Management Agency (“DCMA”) *241and the Defense Contract Audit Agency (“DCAA”), the contracting officer denied Raytheon’s claims on the grounds that Ray-theon had not paid the pension deficits it sought to recover from the government for the employees that remained within Ray-theon’s pension plans.
The court has issued two prior opinions in this case ruling on motions for partial summary judgment and summary judgment under Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”). In its first opinion, ruling on cross-motions for partial summary judgment, the court held that Raytheon’s post-retirement benefit (“PRB”) costs are not “pension costs” within the meaning of CAS 412-40(a), and cannot be included in the segment closing adjustments at issue in this ease. See Raytheon Co. v. United States, 92 Fed.Cl. 549 (2010) (“Raytheon I ”).
In its second opinion, the court addressed the government’s motion for summary judgment on a series of issues, including the government’s argument that Raytheon waived and transferred its claims for the Optical and AIS segment closing adjustments under the terms of the novation agreements entered into with Raytheon, the government, and the purchasers of each segment. Raytheon Co. v. United States, 96 Fed.Cl. 548 (2011) (“Raytheon II ”).11 The court denied the government’s motion with respect to the novation agreements, finding that a genuine issue of material fact existed as to whether the conduct of the parties was sufficient to vitiate the waiver language in those novation agreements.
This third opinion follows the trial that was conducted in two phases over the course of eleven days in October and November 2011. In the first phase, the court heard testimony and received evidence regarding the issues surrounding the novation agreements. The second phase of the trial focused on the appropriateness of the various methods, assumptions, and calculations used by the parties in performing a post-1995 CAS 413 segment closing adjustment. The court heard live testimony from 21 witnesses and allowed 194 exhibits into evidence. Closing arguments were heard on February 16, 2012, following post-trial briefing.
A summary of the testimony and evidence introduced at trial and the court’s findings of fact and conclusions of law for each segment are separately addressed below, starting with the AIS and Optical novation agreement issues and then proceeding with the segment closing calculations for each segment.
II. The AIS and Optical novation agreements did not act to waive and transfer Raytheon’s CAS 413 segment closing claims
A. The AIS novation agreement
1. Testimony and evidence presented on the formation of the AIS novation agreement
AIS was established as a segment on January 1, 1999 from a consolidation of various businesses that Raytheon had previously acquired between 1995 and 1997: E-Systems, Inc. (“E-Systems”), Chrysler Technologies Airborne Systems (“CTAS”), and Texas Instrument (“TI”) Systems. PL’s Ex. (“PX”) 19.0002. The AIS segment was sold to L-3 Communications Integrated Systems (“L-3”) on March 8, 2002. Id. By the terms of the asset purchase agreement between Raytheon and L-3, Raytheon retained the pension plan *242assets and actuarial accrued liabilities for AIS. See PX 41.0112 (“The Sellers shall retain all liability and responsibility for the defined benefit pension plans maintained by Sellers in which Transferred Employees participate as of the Closing-”). In connection with Raytheon’s sale of AIS, the government, Raytheon, and L-3 entered into a novation agreement (“AIS novation agreement”) on or about November 11 through November 14, 2003 with an effective date of March 8, 2002. PX 347; Def.’s Ex. (“DX”) 109. The AIS novation agreement recognized the transfer of certain open government contracts from Raytheon to L-3. Id. The AIS novation agreement was modeled on the FAR 42.1204(i) form novation agreement. The standard text of FAR 42.1204(i)(b)(1) (“clause (b)(1)”), included in the agreement, reads as follows:
(b) In Consideration of These Facts, the Parties Agree that by this Agreement:
(1) The Transferor confirms the transfer to the Transferee, and waives any claim [12] and rights against the Government that it now has or may have in the future in connection with the contracts.
AIS novation agreement; see also FAR 42.1204(i)(b)(1).
The government contends that this waiver and release bars Raytheon’s CAS claim for $56,274,371.39 from the sale of the ATS segment. Raytheon argues that the subject waiver and release does not extend to CAS claims. If the court finds that it does, then Raytheon argues the parties’ actions demonstrate that the contract language should be reformed to exclude CAS claims because the parties did not intend to include those claims or that the parties’ actions subsequent to the execution of the novation agreement vitiated the waiver with regard to those claims.
At trial, Raytheon presented testimony and evidence on the formation of the AIS novation agreement from John McGrath (DCMA Raytheon Corporate Office Defense Corporate Executive (“DCE”)13 beginning April 200214 and government signatory to the AIS novation agreement), Rodger Chris-tiansen (DCMA corporate contract specialist who focused on Raytheon’s corporate restructuring activities and who was involved in the preparation of the AIS novation agreement for the government), Daniel Dowd (DCMA corporate cost analyst who focused on Raytheon’s compliance with the CAS), James Schepley (involved in the formation of the AIS novation agreement for Raytheon), James “Vincent” McKenzie (involved in the formation of the AIS novation agreement for Raytheon), John Harris (Raytheon’s signatory to the AIS novation agreement), Michael Garvey (Raytheon’s Director of Benefits Finance from 2000 through May 2003), Deborah Tully (Raytheon’s Director of Benefits Finance beginning in May 2003), Terence Murphy (Raytheon’s Assistant Controller for Government Accounting and its primary interface with the DCMA’s Raytheon Corporate Office), and Robert Cann (Raytheon’s Manager of Government Accounting until he succeeded Mr. Murphy as Assistant Controller for Government Accounting in February 2005). Through this testimony and accompanying exhibits, Raytheon sought to establish that 1) all of the parties understood that the AIS novation agreement did not encompass Raytheon’s segment closing claims because the only purpose of the novation agreement was to transfer performance responsibility for the contracts specified in the standard attachment to the novation agreement, and 2) nothing in the waiver in clause (b)(1) of the AIS novation agreement altered the purpose or scope of that agreement. Raytheon alternatively sought to establish that the contin*243ued negotiations regarding the AIS segment closing adjustments after Raytheon’s execution of the AIS novation agreement vitiated any waiver of the CAS claims.
The government sought to show through these same witnesses15 that 1) Raytheon had failed to adduce any new evidence requiring reformation of the contract, because the testimony indicated that the parties had intended to and did successfully adhere to the FAR form novation agreement, and that therefore the court need not reconsider its prior ruling in Raytheon II that that the plain language of clause (b)(1) encompasses CAS segment closing claims, and 2) none of the testimony demonstrated that a certified CAS claim had been made by Raytheon prior to the execution of the AIS novation agreement, and therefore the waiver could not have been vitiated by later consideration of Raytheon’s CAS claim by the government’s contracting officer.
The testimony and evidence received regarding the relationship between the AIS novation agreement and Raytheon’s AIS segment closing claim is summarized below.
a. John McGrath
The parties presented the testimony of Mr. John McGrath — the government signatory to the AIS novation agreement — who testified regarding his involvement with the preparation and signing of the AIS novation agreement. Mr. McGrath testified that he worked for the DCMA from 1984 to 2006, and was assigned to Raytheon throughout his time with the DCMA. Tr. 1316.16 Among his duties as a DCE, Mr. McGrath was responsible for overseeing Raytheon’s compliance with governmental regulations, including CAS 413. Tr. 1318. Mr. McGrath testified that as a DCE he had the final authority for determining CAS compliance or noneompli-anee and for citing and resolving CAS violations. Tr. 1319. He was also responsible for novation agreements that were executed at the corporate level. Tr. 1319. As a DCE, Mi\ McGrath was supported by three corporate price analysts, including Mr. Christian-sen and Mr. Dowd. Tr. 1319-20.
In connection with the multiple Raytheon segment closings that took place in the early 2000s, including the AIS segment closing, Mr. McGrath testified to informal daily meetings held with his four person team, which at times included discussion of both CAS 413 issues under the purview of Mr. Dowd and corporate restructuring issues (including advance agreements17 and novation agreements) under the purview of Mr. Chris-tiansen. Tr. 1321-22. These meetings were designed to ensure that the members of the team would generally be aware of the issues being handled by other members of the team. Id. Mr. McGrath further testified to attending regular bi-weekly “Open Items” meetings with Mr. Garvey and later Mr. Murphy from Raytheon. Tr. 1323-25. These meetings included discussions of the AIS CAS 413 segment closing issues. Id.18 *244Mr. McGrath testified that he was aware during his tenure as DCE that Raytheon retained the pension plans after the divestiture of AIS. Tr. 1336. Mr. McGrath further testified to receiving a letter dated July 12, 2002 in which Raytheon identified a $69,814,038 deficit for the AIS segment closing adjustment. Tr. 1337.
Mr. McGrath also attended a December 4, 2002 meeting at the DCMA’s L-3 headquarters in New York. Tr. 1339-40. At this meeting, individuals from the DCMA and the DCAA responsible for reviewing all aspects of the sale of AIS from Raytheon to L-3 discussed topics including the AIS novation agreement and the CAS 413 segment closing. Id. No participant at that meeting mentioned that Raytheon may have waived or may have been about to waive its CAS 413 segment closing claim by virtue of the AIS novation agreement. Id. Following the New York meeting, Mr. McGrath sent an e-mail to Ray-theon on December 9, 2002, stating that he was still considering government participation in Raytheon’s deficit segment closings, which then included a plan to settle all CAS 413 segment closings to the maximum extent by offsetting deficit and surplus segment closings. Tr. 1341-42; PX 331.19 At a December 13, 2002 Open Items meeting, the AIS segment closing was on the agenda, but waiver of AIS segment closing claims by virtue of a novation agreement was not discussed. Tr. 1345-46; PX 389. Mr. McGrath further testified that from January 2003 until September 30, 2004, the DCMA and the DCAA put a significant amount of time and effort into researching Raytheon’s deficit calculations for its CAS 413 segment closing for the AIS segment. Mr. McGrath testified that he would not have requested this expenditure of resources had he known the government was going to deny Raytheon’s request for government participation by virtue of the novation waiver clause. Tr. 1347-48.
Sometime between November 11, 2003 and November 14, 2003, while considering Ray-theon’s CAS 413 segment closing adjustment proposal for AIS, Mr. McGrath signed the AIS novation agreement on behalf of the government. Tr. 1329, 1376-77; PX 347.0003. Mr. McGrath testified that he did not believe when he signed the novation agreement that Raytheon had waived its CAS 413 claims under clause (b)(1), nor had anyone from the government, outside of this litigation, ever suggested to him that novation agreements affect CAS 413 claims. Tr. 1377, 1379. Mr. McGrath testified to his understanding of the purpose of the AIS novation agreement as follows:
To me, ... the novation agreement did thi’ee things. It transferred contracts and it determined that the buying company had the technical capability and the financial capability to perform the contracts. It never dawned on me that there was a waiver in that novation agreement.
Tr. 1378.
On December 1, 2003, Mr. McGrath sent another e-mail to Raytheon indicating that while he was still of the view that CAS 413 surpluses and deficits should be offset against one another, he had been informed by DCMA counsel, Mr. Brian Kingston, on November 19, 2003 that he would not be able to offset surpluses and deficits. Tr. 1362-64; PX 335. This represented a change in the DCMA’s position. Id20 Despite the change in position on offsets, Mr. McGrath still intended to grant Raytheon’s request for government participation in the AIS segment’s deficit.’ Tr. 1365; PX 335 (“[F]or all situations where the Government has a liability to Raytheon, it is still my intention to adjust final rates to reimburse Raytheon for these amounts.”). At the December 11, 2003 Open Items meeting following execution of the AIS novation agreement, the AIS segment closing was on the agenda, though waiver of AIS segment closing claims by virtue of the nova*245tion agreement was not discussed. Tr. 1365-66; PX 408.0003. Again, at the February 12, 2004 Open Items meeting, the AIS segment closing was on the agenda, and Mr. McGrath was still considering Raytheon’s request for government participation in the AIS segment’s deficit. Tr. 1366-68; PX 410.0003. And again; at the June 10, 2004 Open Items meeting, the AIS segment closing was on the agenda, and Mr. McGrath was still considering Raytheon’s request for government participation in the AIS segment’s deficit. Tr. 1368; PX 412. Waiver of CAS claims under the novation agreement was never discussed at these meetings. PX 408; PX 410; PX 412; Tr. 1366-68.
In July 2004, the DCMA and the DCAA issued a Joint Guidance regarding CAS 413 segment dosing adjustments based on the ruling of the Court of Federal Claims in Teledyne, Inc. v. United States, 50 Fed.Cl. 155, 178 (2001) (“Teledyne ”) and the Federal Circuit’s ruling in Allegheny Teledyne. Tr. 1369.21 Based upon the Joint Guidance^ Mr. McGrath denied Raytheon’s request for government participation in the AIS CAS 413 segment closing deficit on September 30, 2004. Tr. 1368-69. Mr. McGrath disallowed the pension costs, because under the Joint Guidance, quoted supra note 21, Raytheon had failed to fund the AIS pension by the amount of the claimed deficit by the federal tax deadline for the year of the segment closing. Tr. 1370; PX 2.99. Mr. McGrath did not cite the novation agreement as a reason for the disallowance. Tr. 1370-71.
Following receipt of the September 30, 2004 letter, Raytheon submitted an updated segment closing calculation and a demand for a contracting officer’s final decision to Mr. McGrath. PX 19. Mr. McGrath denied Raytheon’s CAS 413 segment closing claim for AIS on March 7, 2005. Tr. 1372-73, 1376; PX 20. The principle reason for denying the claim was again based on the failure to fund the pension costs in the current tax year. Tr. 1373; PX 20 (“Because Raytheon did not fund what it proposes as [the] Government’s share of the AIS deficit in the year of segment closing, any deficit identified by Raytheon and proposed as an adjustment under CAS 413 is therefore an unallowable cost.”). Mr. McGrath also noted another possible basis for denial:
Although a moot point because the government has no intention of sharing in this pension deficit adjustment, the Government sees nothing in CAS 413 — 60(e)(9) that allows the use of CAS-covered sales as a proxy for pension plan costs in determining the amount of the Government’s share.
Tr. 1373-74; PX 20.22 While Mr. McGrath saw fit to note even this “moot” issue, he did not make any statement in the denial letter about the waiver of claims section of the novation agreement. Tr. 1374; PX 20. Mr. McGrath instead testified that the DCMA and the DCAA were reviewing and auditing the AIS segment closing claim until the Joint Guidance was issued in July 2004. Tr. 1375. Mr. McGrath further testified that he stopped considering the AIS segment closing claim at the time he sent the September 30, 2004 letter, and not when he sent the March 7, 2005 final decision letter in response to Raytheon’s demand for a contracting officer’s final decision. Tr. 1375.
On examination by the government, Mr. McGrath testified that when he signed the novation agreement on behalf of the government, he did not have any contact or conversation with the signatories for Raytheon or L-3 and never discussed the meaning of any of the paragraphs of the novation agreement. Tr. 1382. Mr. McGrath further testified that *246the government could not reimburse Ray-theon unless Raytheon had funded the pension plan in the amount requested. Tr. 1383. Finally, Mr. McGrath testified that he did not receive a “claim” from Raytheon with respect to the AIS pension deficit until January 24, 2005. Tr. 1385.
On redirect with Raytheon, Mr. McGrath clarified that he had received a “certified claim” from Raytheon for the AIS segment closing deficit on January 24, 2005. He then explained that when a contractor informally asserts that it is entitled to money that is also considered to be a “claim” in a more “common” sense. Tr. 1385-86. Mr. McGrath further testified that prior to January 2005 he had himself referred to Ray-theon’s CAS 413 pension deficit proposal for AIS as a “claim” in the “common” sense including in an October 4, 2002 e-mail to Raytheon. Tr. 1386-87; PX 385.
b. Rodger Christiansen
Raytheon presented the testimony of Mr. Rodger Christiansen, a corporate contract specialist for the DCMA assigned to Ray-theon’s corporate office with a specialty in corporate restructuring and mergers and acquisitions, who testified regarding his involvement with the preparation of the AIS novation agreement. Mr. Christiansen, who also served for a brief period as the Acting DCE, was the primary person involved in drafting the AIS novation agreement for the DCMA. Tr. 1252, 1255. Mr. Christiansen testified that his primary point of contact with Raytheon on the novation agreement was Mr. James Schepley, and that he also interacted with Mr. James “Vince” McKenzie, who prepared the initial draft of the novation agreement. Tr. 1267-68.
Mr. Christiansen testified to knowing about the L-3 acquisition of AIS from Ray-theon and the need for a novation process as early as January 16, 2002. Tr. 1269-71; PX 415. Mr. Christiansen further testified that novation agreements only include contracts for which final payment has not yet been paid, in contrast to closed contracts that are complete and for which final payment has already been made. Tr. 1274-77 (“I would be surprised if Raytheon would include a closed contract.”). At the time he was working on the AIS novation agreement, he was aware that Raytheon’s CAS 413 claims were being handled for the DCMA by Mr. Daniel Dowd, and both he and Mr. Dowd reported to the DCE on these issues. Tr. 1263-64.
On December 4, 2002, Mr. Christiansen attended a meeting of DCMA and DCAA personnel, including Mr. McGrath, Mr. Dowd, and Mr. Kingston, at the DCMA’s L-3 headquarters in New York to discuss outstanding items from the AIS sale, including the AIS novation agreement and the ongoing CAS 413 pension reviews. Tr. 1281-83; PX 388. Mr. Christiansen testified that he could not recall any discussion of Raytheon potentially waiving its CAS 413 claims through the novation agreement. Tr. 1282-85. Moreover, Mr. Christiansen identified the open-items list for the regular Open Items meeting held on December 13, 2002, on which the status of the AIS CAS 413 segment closing review was indicated as “In Process, Need Government Participation,” without any reference to the novation agreement. Tr. 1286; PX 389. Mr. Christiansen testified that it had never been suggested to him, prior to this litigation, that Raytheon had waived its CAS 413 claims by virtue of signing the AIS novation agreement. Tr. 1314.
The final version of the AIS novation agreement was approved by DCMA counsel on October 30, 2003. Tr. 1312; PX 404. Mr. Christiansen testified that the final version was in the form prescribed by the FAR, and agreed that in his experience deviation from the FAR form novation agreement did not occur. Tr. 1261. Mi’. Christiansen testified that during the drafting process he took the position, shared by DCMA counsel Mr. Kingston, that novation agreements must adhere to the FAR language. Tr. 1279-80; PX 416. Mr. Christiansen further testified to multiple exchanges he had with Mr. Kingston, with representatives from L-3, and with Mr. McKenzie, between December 2002 and October 2003, in which Raytheon and the government attempted to ensure that the novation agreement conformed to the “boilerplate FAR language.” Tr. 1287-1307. In the course of at least seventeen exchanges with Mr. Kingston, it was never suggested to Mr. Christiansen that Raytheon would waive its *247CAS 413 claim by signing the AIS novation agreement. Tr. 1312. Nor did Mr. McGrath suggest to Mr. Christiansen that Raytheon would waive its CAS 413 claim under the AIS novation agreement. Tr. 1313.
The AIS novation agreement was signed between November 11 and November 14, 2003 by Mr. John Harris for Raytheon, Mr. Steven Post for L-3, and Mr. John McGrath for the government. Tr. 1257,1268; PX 347. Mr. Christiansen testified that the AIS novation agreement, as signed, “was in the form prescribed by FAR § 42.1204(i), 48 C.F.R. 42.1204(i) (2002).” Tr. 1260-61.
c. Daniel Dowd
Raytheon presented the testimony of Mr. Daniel Dowd, a corporate cost analyst for the DCMA assigned to Raytheon’s corporate office with chief responsibility for overseeing Raytheon’s compliance with the CAS. Mr. Dowd testified regarding his involvement with the preparation of the AIS CAS segment closing adjustment at the time the AIS novation agreement was being drafted. Tr. 1162-63, 1214-17.23 Mr. Dowd, who also served for a brief period as the Acting DCE, was involved in reviewing Raytheon’s AIS CAS 413 segment closing adjustment for the DCMA, and reported to DCE John McGrath. Tr. 1165-66. In this capacity, Mr. Dowd-interacted with Mr. Murphy, Mr. Cann, Mr. Garvey, and Ms. Tully from Raytheon, and during those interactions no one suggested that Raytheon had waived its CAS claims by signing the novation agreement. Tr. 1165— 66. Mi’. Dowd was aware of the AIS novation agreement, but he was only involved with reviewing the AIS CAS 413 segment closing adjustment. Tr. 1166-67, 1168-69; PX 347.
Mr. Dowd also testified to attending the December 4, 2002 meeting of DCMA and DCAA pei’sonnel at the DCMA’s L-3 headquarters in New York. He stated that he did not recall any discussion at that meeting of Raytheon risking waiver of its AIS CAS 413 claim by signing the novation agreement. Tr. 1197-99. Mr. Dowd identified the open-items list for the regular Open Items meeting held on December 13, 2002, on which the AIS CAS 413 segment closing review was identified as “In Process, Need Government Participation,” without any reference to the novation agreement. Tr. 1199-1201; PX 389. Mr. Dowd testified that he had never prepared an Open Items status report for the AIS segment that mentioned that Raytheon had waived its CAS 413 segment closing claim under a novation agreement. Tr. 1200. Mr. Dowd also testified that prior to 2011 he never heard anyone assert that Raytheon waived its CAS 413 claims pursuant to a novation agreement. Tr. 1213.
In explaining the DCMA’s consideration of Raytheon’s proposed AIS segment closing adjustment, Mr. Dowd testified that the DCMA had planned to contribute toward Raytheon’s deficit segment adjustments by using the deficits to offset Raytheon’s surplus segment adjustments. Tr. 1173. Mr. Dowd testified to receiving a copy of Ray-theon’s initial claim for an AIS segment closing adjustment in a July 12, 2002 letter from Mr. Garvey to Mr. McGrath, which included a calculated deficit by Raytheon’s actuary, Mercer, in the amount of $69,814,038. Mr. Dowd forwarded that letter to the DCAA and the DCMA’s Contractor Insurance and Pension Review Center (“CIPR Center”) for review of the calculations. Tr. 1192-94; PX 56; PX 85; PX 383. Mr. Dowd also testified that he received a copy of Raytheon’s government share calculation for the AIS CAS 413 segment closing adjustment on February 25, 2003. Raytheon claimed that the government was responsible for 81.2 percent of the deficit, or $56,688,999. Tr. 1201-02; PX 57.
In a letter dated August 11, 2003 from Mr. McGrath to Raytheon (a letter that Mr. Dowd believed he drafted on Mr. McGrath’s behalf), the DCMA announced its initial finding of CAS noncomplianee, finding Ray-theon’s AIS government share calculation was deficient because it was based upon sales data and not pension cost data. Tr. 1202-03; *248PX 337. In drafting the letter, Mr. Dowd consulted with DCMA counsel Mr. Kingston, and Mr. Kingston made no reference to denying Raytheon’s CAS 413 claim on the basis of a novation agreement. Tr. 1203-04. As of October 14, 2003, the DCMA was continuing to consider, and Raytheon was continuing to pursue, Raytheon’s AIS CAS 413 claim, and the DCAA was working with Raytheon to gather additional data to calculate the government participation rate for AIS. Tr. 1204-05; PX 89. These efforts actively continued into November 13, 2003, Tr. 1205-06; PX 61, at approximately the same time the AIS novation agreement was being signed, Tr. 1206-07. Mr. Dowd also received a copy of a December 1, 2003 e-mail from Mr. McGrath to Mr. Murphy indicating that, on advice of counsel dated November 19, 2003, he would not be permitted to offset Ray-theon’s pension surpluses against Raytheon’s pension deficits.- Tr. 1207; PX 335. However, he also understood that Mr. McGrath’s still intended as of December 1, 2003 to reimburse Raytheon for the CAS 413 segment closing deficits, including the AIS segment deficit. Tr. 1209; PX 335. Mr. Dowd agreed that Raytheon continued to pursue reimbursement for the government’s share of the AIS segment closing claim after November 2003 when it signed the AIS novation agreement, and that the DCMA and the DCAA continued to consider that claim after November 2003. Tr. 1212.
On examination by the government, Mr. Dowd testified that he did not consult the AIS novation agreement when he was reviewing the CAS 413 segment closing adjustment calculations for AIS, and reiterated that he did not participate in negotiating or drafting the AIS novation agreement. Tr. 1234-35. Moreover, Mr. Dowd testified that he had never read the waiver language in the AIS novation agreement during that time. Tr. 1235. He further testified that he continued to work on the CAS 413 issues after November 2003 because he had not been informed by anyone that Raytheon had waived its rights. Tr. 1235. Mr. Dowd testified that much of his effort during this time was dedicated to locating government share information. Tr. 1237. Mr. Dowd clarified, that Raytheon’s AIS segment closing calculation was noncompliant not only because it was based on sales rather than pension cost data, but also because it was based on an unrepresentative period. Tr. 1236-37; PX 337. Mr. Dowd further testified that the December 2002 meeting he attended at the DCMA’s L-3 corporate headquarters occurred prior to Raytheon’s filing of a certified claim. Tr. 1236. Mr. Dowd clarified that, to his knowledge, the first claim that DCMA received from Raytheon for the AIS segment closing adjustment was dated January 24, 2005. Tr. 1238; PX 19 (certified claim signed by Mr. Biggs Porter on behalf of Raytheon).
On reexamination by Raytheon, Mr. Dowd agreed that in the common sense of the word “claim,” Raytheon had expressed to the government a belief that money was due to it well before 2005. Tr. 1239-40.
d. James Schepley
Raytheon also presented the testimony of Mr. James Schepley, Raytheon’s Director of Policy for contracts at the time of the AIS segment closing in early 2002. He testified about his involvement in the preparation of the AIS novation agreement.
Mr. Schepley joined Raytheon following a twenty-four year career with the United States Air Force in which he reached the rank of full Colonel. Tr. 980. Approximately half of his Air Force career included responsibility for government contracting., Tr. 980. As Raytheon’s Director of Policy for contracts for the corporation, Mr. Schepley’s duties included overseeing all training activities for contracts and maintaining and modifying corporate policies regarding contracts when there were changes to the FAR or any of the supplements thereto that would affect Raytheon. Mr. Schepley also was responsible for overseeing other “special opportunities” including, as is pertinent to this litigation, novation of the contracts associated with the AIS segment. Tr. 984-85. Mr. Schepley testified that a novation agreement serves to transfer contract responsibilities to a third party and requires agreement by all three parties involved — in this case L-3, Raytheon and the government. Tr. 986. Mr. Schepley testified that a novation agreement contains *249the terms of the agreement itself, taken from the FAR, and an attached list of all the contracts that will be transferred — in this case from Raytheon to L-3. Id. Mr. Schepley testified that, in his experience, the greatest amount of time spent on the agreements is spent on developing the list of contracts. Id. He further testified to understanding that the purpose of the AIS novation agreement was to transfer from Raytheon to L-3 the contracting responsibilities identified in the listed contracts. Id.
Mr. Shepley coordinated and oversaw the preparation of the AIS novation agreement by the Contracts Group at Raytheon. Tr. 985. Mi\ Schepley, along with Mr. McKenzie, drafted a letter of notification of the sale of AIS to L-3 on April 18, 2002, wherein they included a preliminary list of contracts that Raytheon expected to transfer to L-3 along with an anticipated request for a novation agreement. Tr. 989-90; PX 381. Mr. Schepley and Mi’. McKenzie also drafted a novation agreement using the standard FAR language and sent this draft agreement to Mr. Christiansen. Tr. 990. Thereafter, pursuant to the FAR, the government reviewed L-3’s management and financial capability to execute the contracts that were to be transferred under the novation agreement. Tr. 990. Following this review, which took approximately one and a half years, Raytheon again became involved in the novation process in Fah 2003. Tr. 990-91. The AIS novation agreement was executed in November 2003. Tr. 992; PX 347. Prior to execution of the agreement, Mr. Schepley was involved in the review of early draft versions, the purpose of which was to ensure that the language in the agreement “was consistent with” FAR Part 42.12 and the supplement to Part 42.12 in the Defense FARs, which provide for the addition of certain language to the FAR language. Tr. 992; PX 366; PX 367. It was Mr. Schepley’s experience, both with Raytheon and with the Air Force, that sample contract language from the FAR was routinely used. Tr. 996. Mr. Schepley testified that, in his many years of government contracting experience, it was rare to negotiate deviations in language from the FAR, including the FAR form novation agreement, because the objective of the FAR is to standardize government contracts and because much of the FAR is governed by other federal law such that deviation may require different levels of approval. Tr. 996-97.
Mr. Schepley testified that he was unaware of any conversations concerning the scope of clause (b)(1) during the time the novation agreement was being drafted and that, prior to this litigation, no one suggested to him in any context that Raytheon waived its CAS 413 segment closing adjustment claims by virtue of the novation agreement. Tr. 999-1000.
On examination by the government, Mr. Schepley agreed that it was beneficial for both the government and the contractor to have uniformity and certainty in contracting through the various provisions of the FAR. Tr. 1001-02. Mr. Schepley also testified about two drafts of the AIS novation agreement dated March 4, 2002 and April 29, 2002 that included language in clause (b)(1) identical to that in the FAR form novation agreement found at FAR subpart 42.12. Tr. 1005-06,1015; DX 209; DX 210. In a draft dated May 31, 2002, additional language had been added to clause (b)(1). Tr. 1018-19; DX 213 (including language that read, “Such claims and rights are recognized to have been transferred to the transferee”). At that time, there was a break in discussions over the novation agreement while the government performed a review of L-3’s capability to take on the contracts that were to be transferred. Tr. 1022-23. In October 2003, Mr. Schepley was again brought in by Mr. John Harris to help complete the drafting process for the AIS novation agreement. Tr. 1023-24; DX 215. Mr. Schepley then asked Mr. McKenzie to take a look at the agreement, and thereafter Mr. McKenzie took the lead on commenting on the agreement. Tr. 1026. Mr. Schepley further testified that he did not have any discussions about the effect of the waiver in clause (b)(1) of the novation agreement and that he made no personal effort to determine whether there were any contract claims that Raytheon wished to exclude from the waiver in clause (b)(1). Tr. 1026-27.
e. James “Vince” McKenzie
Raytheon also presented the testimony of Mr. James “Vince” McKenzie, a senior eon-*250tracts administrator with Raytheon, who testified regarding his involvement with the preparation of the AIS novation agreement. Tr. 1036. Mr. McKenzie was involved in producing the list of contracts to be transferred (or novated) to L-3 and writing the initial draft of the novation agreement itself. Tr. 1038. Mr. McKenzie testified that within the list of contracts there were both active contracts and completed contracts for which final payment had not yet occurred. Tr. 1039. Mr. McKenzie explained that more effort was expended in finalizing the list of contracts than in drafting the novation agreement, which he did by referring to FAR Part 42 at the direction of Mr. Schepley. Tr. 1038-39. Specifically, Mr. McKenzie used language from FAR 42.1204(i) to produce the initial draft of the AIS novation agreement. Tr. 1040-41 (“I had to fill in the blanks and so forth.”); PX 427. Mr. McKenzie testified that his only thought process in copying clause (b)(1) into the AIS novation agreement was “use the FAR.” Tr. 1042. In Fall 2003, when the parties were finalizing the AIS novation agreement, Mr. McKenzie was involved in reviewing the novation agreement and updating the final list of contracts to be novated by the agreement. Tr. 1044-45; PX 396; PX 397. After reviewing a draft of the novation agreement that existed in Fall 2003, Mr. McKenzie sent an e-mail to Mr. Schep-ley, Mr. Harris, and Mr. Christiansen that compared the draft to the FAR language. Tr. 1047-49.
Mr. McKenzie articulated his understanding of the purpose of the novation agreement as “at a date and time you snap a line and you take all ongoing contracts and any inactive contracts that had not yet been finally closed and you transfer those performance obligations, performance obligations related to those contracts, from — from say Raytheon to the new entity, L-3; and of course, the corresponding payment obligation for ... performance of those contracts would then go to L-3 as opposed to Raytheon.” Tr. 1042. With respect to his understanding of the effect of Raytheon’s waiver on its AIS CAS 413 segment closing claim, at the time he prepared the draft novation agreement, and up until his participation in this litigation in 2011, Mr. McKenzie testified that he “didn’t know anything about CAS 413.” Tr. 1042-43. Mr. McKenzie further testified that he never had a conversation with anyone concerning Raytheon’s CAS 413 segment closing claims prior to 2011. Tr. 1050.
f. John Harris
Raytheon also presented the testimony of John Harris, Raytheon’s Vice President and Director of Contracts at the time the AIS novation agreement was signed, who testified to his involvement as the Raytheon signatory to the AIS novation agreement. Tr. 1083. Mr. Harris has held an array of contract management positions at every level within Raytheon over his 28 year career.24 Tr. 1083-86. Mr. Harris testified to having had experience with a number of novation agreements prior to the AIS novation agreement. Tr. 1086-87. Mr. Harris testified that it was his understanding at the time he signed the AIS novation agreement that the purpose of the agreement was to “transfer a contract’s performance responsibility from Raytheon to L-3.” Tr. 1094; see also id. at 1087 (“Simply put, it’s basically a process by which the transferee, transferor and the government agree to move responsibility for contract performance from one party to the other.”). Mr. Harris testified that, in preparing a no-vation agreement, “the biggest deal is mak*251ing sure that you list all of the contracts. That’s the really important or meaningful element of this entire process.” Tr. 1103. Mr. Harris also testified that in his experience, the FAR form novation agreement is “a very prescriptive document. It basically is a fill-in-the-blanks.” Tr. 1103. Mr. Harris further testified to believing that the waiver language in paragraph (b)(1) was limited to “contract performance-related claims.” Tr. 1090-91. Mr. Harris contrasted these claims with claims for pension costs, which survive any specific contracts. Tr. 1096. Mr. Harris testified that at the time he signed the AIS novation agreement he believed the waiver language of clause (b)(1) did not include CAS 413 claims “because those [would] be at the company level and not specifically related to contract performance.” Tr. 1092-93, 1095. Mr. Harris further testified that the issue of paragraph (b)(1) potentially waiving Ray-theon’s segment closing adjustment claim for AIS had not come up in any communications he had with government representatives. Tr. 1097. Mr. Harris testified that he “absolutely [did] not” “believe that by signing the novation agreement Raytheon was releasing its rights against the government for settling up with pension the costs.” Tr. 1097.
g.Michael Garvey
Raytheon presented the testimony of Michael Garvey, Raytheon’s Director of Benefits Finance from 2000 through May 2003, who testified regarding his involvement in preparing Raytheon’s proposed AIS CAS 413 segment closing adjustment. Tr. 254. Mr. Garvey was responsible for working with Raytheon’s Actuary, Mercer, to produce Ray-theon’s CAS 413 segment closing analyses, including the segment closing analysis for the AIS divestiture. Tr. 255-56.
Mr. Garvey testified that in all his time working on the AIS segment closing calculations, no one ever suggested to him that Raytheon’s CAS 413 claim for the AIS segment was precluded by a novation agreement between Raytheon and the government. Tr. 293-94. Mr. Garvey further testified that, to his knowledge, the subject of novation agreements had never come up in any context related to the AIS segment closing and that he was never involved in any discussions related to the AIS novation agreement. Tr. 293-94, 330.
h.Deborah Tully
Raytheon presented the testimony of Deborah Tully, Raytheon’s Director of Benefits Finance beginning in May 2003, when she replaced Michael Garvey. Tr. 427. Ms. Tully, prior to being hired by Raytheon, worked in a variety of consulting capacities, including as an actuarial consultant and team leader for actuarial analysts at Mercer.25 Tr. 427-28. As the Director of Benefits Finance at Raytheon, she is responsible for overseeing the financial management of Raytheon’s fringe benefits, including pensions. Tr. 427. Ms. Tully testified regarding her involvement in preparing Raytheon’s proposed AIS CAS 413 segment closing adjustment.
Ms. Tully was responsible for helping to gather government participation data for the CAS 413 segment closing analysis for the AIS segment, a task that she worked on with Mr. Terrence Murphy. Tr. 443-445. Ms. Tully also consulted with the DCMA and the DCAA in preparing her segment closing calculations. Tr. 445.
Ms. Tully testified that in all her time working on the AIS segment closing calculations, no one ever suggested to her that Raytheon’s CAS 413 claim for the AIS segment was precluded by a novation agreement. Tr. 452. Ms. Tully further testified that she had no understanding of novation agreements prior to this litigation. Tr. 457-58.
i.Terrence Murphy
The parties also presented the testimony of Mr. Terrence Murphy, Raytheon’s Assistant Controller for Government Accounting from 2000 to 2005, who testified regarding his involvement in preparing Raytheon’s proposed AIS CAS 413 segment closing ad*252justment.26 As Assistant Controller for Government Accounting, Mr. Murphy was Raytheon’s primary interface with the DCMA’s Raytheon Corporate Office and was responsible for ensuring compliance with CAS and FAR requirements. Tr. 22. During his tenure at Raytheon, the company was undergoing a major restructuring, including the divestiture of the AIS segment. Id. In connection with this restructuring, Mr. Murphy was responsible for finalizing Raytheon’s corporate restructuring packages with the government and for negotiating Raytheon’s CAS 413 segment closing adjustments. Tr. 22, 29. Mr. Murphy collaborated with Mr. Michael Garvey, Ray-theon’s Director of Benefits Finance, on the government share calculations. Tr. 69-70. Mr. Murphy testified that in the entire period when he was negotiating the AIS CAS 413 segment closing proposals, no one ever suggested to him that the novation agreement for AIS precluded Raytheon’s CAS claims. Tr. 62-63, 77, 96.
Mr. Murphy testified that when he was working on the AIS CAS 413 segment closing adjustment, he had no knowledge at all about the specific terms of the AIS novation agreement and was not involved in the creation of the novation agreement, though he was aware that a novation agreement was required when a business is sold to another business. Tr. 227-28. He also reemphasized that he never had any discussion with anyone from Raytheon or the government about the terms of the AIS novation agreement until this litigation. Tr. 229.
j. Robert Cann
The parties presented the testimony of Robert Cann, a Raytheon corporate manager of Government Accounting from November of 2001 to 2005 and director of Corporate Government Accounting following the retirement of Mr. Murphy. Tr. 369. In both capacities, Mr. Cann was responsible for interfacing with the DCAA and the DCMA regarding government accounting issues at the corporate level. Tr. 369. Mr. Cann was responsible, along with Mr. Murphy, for computing the government’s share of the CAS 413 segment closing adjustment amount. Tr. 374. Along with Mr. Murphy, Mr. Cann was also responsible for preparing and negotiating Raytheon’s corporate restructuring package with the government for the divestiture of the AIS segment, including Raytheon’s CAS 413 segment closing adjustment proposal. Tr. 369-70, 389. Mr. Cann testified to a general understanding that a novation agreement was normally needed when a business is sold. Tr. 389. He further testified that during the negotiations regarding the AIS segment closing adjustment, the issue of the AIS novation agreement never came up and that he never heard anyone say that the novation agreement precluded Raytheon’s CAS claims. Tr. 389. Mr. Cann further testified that he had no understanding one way or the other as to whether Raytheon had waived and transferred its AIS segment closing claim in the AIS novation agreement. Tr. 416-17.
2. Findings of fact and conclusions of law
The consistent and overwhelming evidence adduced at trial establishes that not one of the government or Raytheon employees involved in the processing and signing of the AIS novation agreement or in the negotiations surrounding the AIS CAS 413 segment closing adjustment (several of whom were involved in both) understood that the waiver set forth in the AIS novation agreement, which was taken from FAR 42.1204(i),27 *253barred Raytheon’s CAS 413 segment closing claim. To the contrary, the evidence established that the government and Raytheon employees involved in the negotiations of both the novation agreement and the CAS 413 segment closing adjustment believed up untü issuance of the DCMA/DCAA Joint Guidance in July 2004 that Raytheon was entitled to payment of the government’s share of any pension deficit identified in the segment closing calculations undertaken after the AIS sale to L-3.28 The evidence established that both sides understood that Raytheon had not transferred its pension obligations associated with the closed AIS segment to L-3, and that L-3 would not be assuming Raytheon’s preexisting pension obligations to AIS employees.29 In addition, although a formal certified claim for the CAS 413 pension deficit was not filed until January 24, 2005, see PX 19, neither the government contracting officers nor Raytheon employees negotiating the CAS 413 segment closing adjustment believed that the waiver in the novation agreement barred Raytheon’s claim after the novation agreement was signed by all parties.30 The witnesses from both sides explained at trial that the waiver in the novation agreement was included to fulfill the regulatory obligation set out in the FAR and was edited to ensure consistency with the language in FAR 42.1204(i).31 Government witnesses from the DCMA responsible for overseeing Raytheon’s contracts and cost accounting compliance confirmed that they did not understand the novation agreement to have any bearing on the negotiations over Raytheon’s CAS 413 AIS segment closing calculations.32
In light of the consistent testimony of Ray-theon and government employees, Raytheon once again seeks reconsideration of the court’s earlier ruling that the novation agreement may bar the AIS CAS 413 segment closing claim. Raytheon argues that, consistent with all of the testimony, as a matter of law the novation agreement does not extend to Raytheon’s segment closing claim. In the alternative, Raytheon argues that to the extent the novation agreement has some legal bearing on the segment closing claim, the evidence establishes that the novation agreement should be reformed to comport with the parties’ contemporaneous and common understanding or vitiated to the extent the novation agreement bars the segment closing claim.
The government argues based on this same consistent testimony of government and Raytheon employees that reconsideration of the court’s earlier ruling should not be granted. The government asserts that nothing in the testimony undercuts the government’s legal contention that the novation waiver language set forth in FAR 42.1204(i) and incorporated into the AIS novation agreement bars Raytheon’s AIS CAS 413 pension deficit-related claim. According to the government, the language in the agreement, which incorporated the FAR waiver provision, is intended to protect the government from further liability to Raytheon for contractual claims “in connection” with segment contracts and thus extends to Ray-theon’s CAS 413 claim that arises from the contracts held by AIS. The government argues that the court must interpret the waiver provision in light of the FAR and its general purposes and that the opinions of government and Raytheon employees are not relevant to the meaning of the novation agree*254ment waiver. See Honeywell, Inc. v. United States, 661 F.2d 182, 186 (Ct.Cl.1981). If the regulatory language in FAR 42.1204(i) bars the CAS 413 claim, the government argues, it must be followed. See Honeywell, 661 F.2d at 186; Santa Fe Eng’rs, Inc. v. United States, 801 F.2d 379, 381 (Fed.Cir.1986).
The government further contends that the undisputed evidence establishes that the no-vation agreement waiver was not vitiated by government actions taken after the waiver was signed, because Raytheon did not file a “formal” claim for payment of the CAS 413 segment closing adjustment until after the novation agreement was signed by the parties. The government argues that Ray-theon’s submission of CAS 413 calculations to the government’s contracting officer and the contracting officer’s review of those calculations prior to and subsequent to the execution of the novation agreement was not enough to vitiate the waiver. In support of its legal argument, the government relies upon Sam Bonk Uniform & Civilian Cap Co. v. United States, 230 Ct.Cl. 926 (1982), in which the Court of Claims concluded that, where the entire course of action on the “claim” took place well after both the execution and effective date of the release, the “contracting officer’s failure to consider the release issue ... can therefore shed no light on the intentions of the parties in executing the release.” The government contrasted the facts in Sam Bonk with those of Winn-Senter Constr. Co. v. United States, 110 Ct. Cl. 34, 75 F.Supp. 255 (1948), where the contractor’s claim had been submitted to the contracting officer prior to execution of a release and was decided on the merits by the contracting officer subsequent to execution of the release such that “the claim straddled the release.” Sam Bonk, 230 Ct.Cl. at 926 (“ ‘[T]he conduct of both parties shows that they did not construe the release as an abandonment or forfeiture of this pending claim.’ ”) (quoting Winn-Senter, 110 Ct.Cl. at 66, 75 F.Supp. 255).33 The government argues that Raytheon’s failure to submit a certified claim before it signed the novation agreement bars its claim under Sam Bonk.
Given the overwhelmingly consistent testimony of the government and Raytheon witnesses discussed above, the court finds that it must reconsider its earlier reading of the novation agreement waiver in Raytheon II. For the reasons discussed below, the court concludes that the waiver set forth in the AIS novation agreement, which incorporates the language of the FAR, encompasses only contract-specific claims. The court concludes that the subject waiver did not extend to the AIS CAS 413 segment closing claim because the AIS segment closing claim is not a contract-specific claim but instead involves a claim to settle-up pension liabilities that are still retained by Raytheon and were not transferred as part of the segment sale.
The court turns first to the purpose of novation agreements and of the waiver provision in particular. There is no doubt that the novation agreement authorized in the FAR is intended to protect the government. Through a novation agreement, the government legally recognizes a successor-in-interest to a government contract (or a list of contracts) following a transfer of that contract that would otherwise be prohibited by the Anti-Assignment Act. Generally speaking, the Anti-Assignment Act, 41 U.S.C. § 15, prohibits the transfer of a government contract. See Delmarva Power & Light Co. v. United States, 542 F.3d 889, 892 (Fed.Cir.2008); Westinghouse Elec. Co. v. United States, 56 Fed.Cl. 664, 569 (2003), aff'd, 97 Fed.Appx. 931 (Fed.Cir.2004) (“It is well-settled law that the anti-assignment legislation generally prohibit the transfer of government contracts and the assignment of claims against the government.”).34 This *255statutory prohibition is intended to protect the government from “persons of influence [ ] buying up claims against the United States, which might then be improperly urged upon officers of the Government” and, relevant to this ease, “to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant.” United States v. Shannon, 342 U.S. 288, 291, 72 S.Ct. 281, 96 L.Ed. 321 (1952) (quoting United States v. Aetna Sur. Co., 338 U.S. 366, 373, 70 S.Ct. 207, 94 L.Ed. 171 (1949)); Ins. Co. of the West v. United States, 100 Fed.Cl. 58, 66 (2011). Through a novation agreement, the government is able to approve an assignment and protect itself from the possibility of multiple claims.35
The policies and procedures for implementing novation agreements that are codified at FAR 42.1204, allow the government, when it determines that it is in its interest, to enter into novation agreements for the recognition of a third party as a successor-in-interest to a government contract. Id.
Federal contracting regulations have historically contemplated that a novation agreement shall ordinarily provide in part that:
(1) The transferee assumes all the trans-feror’s obligations under the contract;
(2) The transferor waives all rights under the contract as against the Government;
(3) The transferor guarantees performance of the contract by the transferee ...; and
(4) Nothing in the agreement shall relieve the transferor or the transferee from compliance with any Federal law.
See 21 Fed.Reg. 5352, 5359 (July 18, 1956), 38 Fed.Reg. 32,808, 32,809 (Nov. 28, 1973), 48 Fed.Reg. 42,101, 42,381-83 (Sept. 19, 1983).36 Effectuating this intent, the FAR form novation agreement, which now appears in FAR 42.1204(i), is designed for use when “all the transferor’s assets are transferred,” and states in relevant part, “the Transferor confirms the transfer to the Transferee, and waives any claims and rights against the Government that it now has or may have in the future in connection with the contracts.” FAR 42.1204(i)(b) (1).
Because the subject novation agreement is taken directly from FAR 42.1204, the court agrees with the government that it must construe the provision to effectuate the intent of the promulgators and not the parties. See Honeywell, 661 F.2d at 186. Unlike interpreting a contract clause, which is construed in order to give it the effect intended by both parties, when interpreting regulatory language a court’s duty “is to effectuate the intent of the promulgators of the regulation.” Id. The fact that the regulatory language is contained in a contract does not change its interpretation. Id.; see also Santa Fe Eng’rs, 801 F.2d at 381.
Here, the court concludes that when it construes the above-quoted language in light of its purposes the waiver set forth in the novation agreement it must reject the government’s reading. The waiver is intended to protect the government from multiple claims that might arise “in connection with” the specific contracts that are transferred from the seller to the buyer and identified in the attached lists.37 The provision is focused *256on what is being transferred and fixes the relationship among the players — the government, the seller, and the buyer — with regard to the obligations that are transferred. In other words, it protects the government from facing the prospect of having to deal with multiple claims arising from the transferred contracts.
In this connection, it is significant that Raytheon’s pension obligations with regard to its former AIS employees were not transferred to L-3. Rather, under the asset sale purchase agreement to L-3, Raytheon retained its pension liabilities for its AIS employees. PX 41.0112 (“The Sellers shall retain all liability and responsibility for the defined benefit pension plans maintained by the Sellers in which Transferred Employees participate as of the Closing-”). Because the pension obligation to the AIS employees was not transferred and the right of AIS employees to a pension is not specific to any of the novated contracts, nor any other specific contracts, the novation waiver was not triggered with respect to Raytheon’s continuing pension obligations. Moreover, because Raytheon retained the pension liabilities, the government does not face the possibility of any conflicting pension-related claims for AIS employees from both Raytheon and L-3.
The importance of Raytheon retaining liability for the AIS pension is confirmed by the fact that under the CAS, if Raytheon had transferred all the pension funds and obligations associated with the AIS segment employees to L-3 as part of the sale, the sale would not have triggered a segment closing adjustment under CAS 413.38 If there are any future periods within which to adjust any pension surplus or deficit through the transferred contracts, then the segment lives on and there is no segment closing for purposes of settling-up pension liabilities. On the other hand, the CAS provides that a segment closing adjustment is required when the seller sells the segment along with the segment’s government contracts but retains the pension obligation. It is in that circumstance, where there are no future contracts through which pension contributions can be adjusted, that a segment closing adjustment is required.39 Thus, Raytheon was required to determine through its calculations a segment closing adjustment pursuant to CAS 413-50(c)(12) because Raytheon retained and did not “transfer” to L-3 all the pension obligations owed to its former AIS employees when it transferred certain contracts.40 Because Raytheon retains the liability for paying pensions to eligible AIS employees, Raytheon is required to resolve the pension deficit or surplus claim under other open government contracts Raytheon has with the government.41 The claim is not resolved through *257the contracts transferred from Raytheon to L-3. Moreover, because Raytheon retained the pension liability separate from any individual contract, the government does not face the possibility of conflicting liability with regard to the contracts transferred to L-3 and therefore the government does not need the AIS novation agreement to protect itself from possible conflicting CAS claims. Ray-theon’s CAS 413 segment closing claim is thus not “in connection with” contracts, under the terms of FAR 42.1204(i)(b)(1).
Finally, the court agrees with Raytheon that the court’s reading of the novation agreement is further confirmed by the Federal Circuit’s recent decision in Gates, which recognizes that a segment closing adjustment is never contract-specific. Gates, 584 F.3d at 1069 n. 8 (“CAS 413 is unusual in that it does not require an analysis of individual contracts, but rather ... affects all of the contractor’s CAS-covered contracts.”). The Federal Circuit has explained:
The current period adjustment provided for under CAS 413, by its terms, represents an adjustment of previously-determined pension costs for the segment as a whole, and does not require an impact analysis of individual contracts within the segment. This adjustment is not contract specific, nor does it involve a cost adjustment of any individual contract.
Gates, 584 F.3d at 1069; see also Allegheny Teledyne, 316 F.3d at 1373 (affirming the Court of Federal Claims’ holdings concerning a prior version of CAS 413 that “the amount of the adjustment that is recoverable depends on the ... contracts under which the costs were paid” and that “the adjustment is effectuated in the current period, meaning it may be recovered under any flexibly-priced contract that remains open during the year of the segment closing”). Thus, the segment closing adjustment requires a calculation to be made without regard to individual contracts. Gates, 584 F.3d at 1068. As the Circuit stated:
[W]hile CAS 413 looks to past contracts in measuring the amount of the required segment closing adjustment, the adjustment itself is implemented through contracts open during the period in which the segment is closed.... This is so because CAS 413-50(c)(12)(vi) provides that the segment-closing adjustment “may be recognized by modifying a single contract, several but not all contracts, or all contracts, or by use of any other suitable technique.”
Gates, 584 F.3d at 1068 (internal citation omitted). As such, the CAS 413 segment closing adjustment operates outside of a contract-specific novation agreement.
It is for all of these reasons that Ray-theon’s claim for payment of the AIS pension deficit based on its CAS 413 segment closing calculations is not barred by the waiver provided for in the AIS novation agreement. Accordingly, the court will consider Ray-theon’s AIS pension deficit claim.42
B. The Optical novation agreement
1. Testimony and evidence presented on the formation of the Optical novation agreement
Raytheon acquired the Optical segment through its merger with Hughes Aircraft Company in December 1997 and sold it to B.F. Goodrich Company (“B.F. Goodrich”) on March 1, 2001. By the terms of the asset purchase agreement between Raytheon and B.F. Goodrich, Raytheon retained the pension plan assets and actuarial accrued liabilities for Optical. See PX 230.0048 (“The Seller will retain all liability and responsibility for the defined benefit pension plans maintained by Seller in which Transferred Employees participate as of the Closing Date-”). In connection with Raytheon’s sale of Optical, the government and Ray-theon entered into a novation agreement with *258B.F. Goodrich on or about March 7, 2001 with an effective date of December 27, 2000. PX 369; DX 20 (“Optical novation agreement”).
The Optical novation agreement was also modeled on the FAR 42.1204(i) form novation agreement. The standard text of clause (b)(1) included in the agreement reads as follows:
(b) In Consideration of These Facts, the Parties Agree that by this Agreement:
(1) The Transferor confirms the transfer to the Transferee, and waives any claims and rights against the Government that it now has or may have in the future in connection with the contracts.
Optical novation agreement; see also FAR 42.1204(i)(b)(1).
As noted above, the government contends that the above-quoted waiver in the novation agreement, bars Raytheon’s CAS claim for $8,693,533.76 from the sale of the Optical segment to B.F. Goodrich. Raytheon contends, as it did with regard to the AIS novation agreement, that the subject waiver in the Optical novation agreement does not extend to CAS claims, or if it does, the parties’ actions both before and after entering into the novation agreement demonstrate that the contract language should be reformed to exclude CAS claims or vitiated with regard to the CAS 413 claim.
At trial, the parties presented testimony43 and evidence on the formation of the Optical novation agreement and the continued review and negotiation of Raytheon’s CAS 413 claim related to the sale of the Optical segment following the execution of the Optical novation agreement. Testimony was heard from John McGrath, Rodger Christiansen, Daniel Dowd, Scott Faith (Raytheon’s signatory to the Optical novation agreement), Michael Garvey, Deborah Tully, Terence Murphy, and Robert Cann.
a. John McGrath
DCE McGrath testified regarding his involvement with the review of Raytheon’s CAS 413 segment closing claim arising from the sale of the Optical segment following execution of the Optical novation agreement.44 Prior to the execution of the Optical novation agreement in March 2001, Mr. McGrath testified to being aware that there was going to be a novation agreement, which was ultimately signed by Mr. John Holley on behalf of the United States. Tr. 1327. Mr. McGrath testified that his predecessor found Raytheon in CAS noncompliance based on Raytheon’s failure to submit a CAS segment closing calculation for the Optical segment. The finding was issued on April 30, 2001, approximately six weeks after the execution of the Optical novation agreement. Tr. 1329-31; PX 343. Mr. McGrath further testified that his DCE predecessor received a letter dated October 9, 2001, approximately seven months after the execution of the Optical novation agreement, in which Mercer identified on behalf of Raytheon a $9,558,952 pension deficit for the Optical segment. Tr. 1331-32.
Beginning in April 2002, Mr. McGrath became the DCMA’s Raytheon Corporate Office DCE. Tr. 1317.45 In that capacity, Mr. McGrath attended a December 4, 2002 meeting at the DCMA’s L-3 headquarters in New York at which individuals from the DCAA and the DCMA discussed the Optical segment closing in addition to the AIS segment closing. Tr. 1339-40. Following the New York meeting and approximately nine months after the Optical novation agreement was signed, Mr. McGrath sent an e-mail to Raytheon on December 9, 2002, stating that he was still considering government partic*259ipation in Raytheon’s deficit segment closings, including a plan to settle all CAS 413 segment closings to the maximum extent by offsetting deficit and surplus segment closings. Tr. 1341-42; PX 331. On December 12, 2002, Mr. Garvey from Raytheon replied to Mr. McGrath proposing to offset the pension deficit from the Optical deficit against the pension surpluses from other segment closings. Tr. 1343-44; PX 332. At a December 13, 2002 Open Items meeting, the Optical segment closing was on the agenda noting an $8 million adjustment due to Ray-theon. PX 389; Tr. 1345-46. Waiver of the Optical segment closing claim by virtue of a novation agreement was not discussed. Id.
Mr. McGrath further testified that from January 2003 until September 30, 2004, the DCMA and the DCAA put a significant amount of time and effort into researching Raytheon’s deficit calculations for its CAS 413 Optical segment closing claim. Mr. McGrath testified that he would not have requested this expenditure of resources if he had known he was going to deny Raytheon’s request for government participation in the Optical segment closing adjustment. Tr. 1348. On February 10, 2003, Mr. McGrath sent Raytheon another e-mail restating his plan to settle all the CAS 413 segment closings individually while determining the final amount owed collectively as an offset and noting that his superiors at the DCMA had agreed. Tr. 1348-49; PX 333. Mr. McGrath had also consulted with DCMA counsel, Mr. Kingston, on this proposal. Tr. 1349. At a June 30, 2003 Open Items meeting, the Optical segment closing was again on the agenda. PX 393; Tr. 1353. Once again, waiver of Optical segment closing claims under a novation agreement was not discussed. Id. At that time, Mr. McGrath recalled that “we had an agreement on Optical, but Raytheon wanted to wait for the Teledyne joint guidance” and that he “[absolutely [had] not” “denied the Optical claim by that point.” Tr. 1353-54.
On December 1, 2003, Mr. McGrath sent another e-mail to Mr. Murphy indicating that he believed that CAS 413 surpluses and deficits should be offset against one another, but this view was not shared by DCMA counsel and thus he would not be able to carry out the offset plan. Tr. 1362-64; PX 335. Mr. McGrath testified that this e-mail represented a change in the DCMA’s position. Tr. 1364. Despite the change in position on offsets, Mr. McGrath testified that he still intended to cover the government’s share of Raytheon’s Optical pension deficit. Tr. 1365. The Optical segment closing was again on the agenda at the December 11, 2003 and February 12, 2004 Open Items meetings without any discussion of the waiver in Optical’s no-vation agreement. Tr. 1365-68; PX 408; PX 410. Indeed, Mr. McGrath reiterated in his testimony that he “had made an offer to Mr. Murphy to settle the Optical, so I don’t think it was still being evaluated.... I ha[d]n’t closed it.” Tr. 1367. And again, at the June 10, 2004 Open Items meeting, the Optical segment closing was on the agenda, and Mr. McGrath was still considering Raytheon’s request for government participation in the Optical segment’s pension deficit. Tr. 1368; PX 412.
As noted above, in July 2004, the DCMA and the DCAA issued the DCMA/DCAA Joint Guidance. Tr. 1368-69; DX 114. Consistent with this guidance, Mr. McGrath denied Raytheon’s request for government participation in the Optical CAS 413 segment closing pension deficit on September 30, 2004. Tr. 1368-69. The reason cited by Mr. McGrath for disallowing the pension costs was Raytheon’s failure to fund the Optical pension costs by the federal tax deadline for the year of the segment closing. Tr. 1370; PX 298. Mr. McGrath did not cite the novation agreement as a reason for the disallowance. Tr. 1370. Following the September 30, 2004 letter, Raytheon submitted an updated segment closing calculation and a demand for a contracting officer’s final decision. PX 25. Mr. McGrath denied Raytheon’s CAS 413 segment closing claim for Optical on February 1, 2005. Tr. 1372; PX 26. The stated reason for denying the claim was Ray-theon’s failure to fund the pension costs in the current tax year. Tr. 1372; PX 26 (“Because Raytheon did not fund what it proposes as the Government’s share of the Optical Systems’ deficit amount in the year of the segment closing, any deficit amount identified by Raytheon and proposed as an adjust*260ment under CAS 413 is therefore an unallowable cost.”).
b. Daniel Dowd
Mr. Daniel Dowd also testified regarding his involvement with the preparation of the Optical CAS segment closing adjustment following execution of the Optical novation agreement.46 Mr. Dowd, as an analyst with the DCMA, was involved in reviewing Ray-theon’s Optical CAS 413 segment closing calculation and reported to DCE John McGrath. Tr. 1165-66; 1169-70. In this capacity, Mr. Dowd interacted with Mr. Murphy, Mr. Cann, Mr. Garvey, and Ms. Tully from Ray-theon, and during those interactions, the subject of Raytheon having waived its CAS claims by virtue of any novation agreements never came up. Tr. 1165-66. Though aware of the Optical novation agreement executed March 7, 2001, Mr. Dowd was not involved with its preparation. Tr. 1166-67. He also did not have the Optical novation agreement with him when he oversaw the CAS 413 segment closing for Optical. Tr. 1219-20.
Mr. Dowd testified that as of April 30, 2001, six weeks after the signing of the Optical novation agreement, the government cited Raytheon for failing to complete a CAS 413 segment closing adjustment for the sale of Optical to B.F. Goodrich. Tr. 1174; PX 343. At this time, the government was “still waiting to get any kind of calculation or claim or anything from Raytheon on that issue.” Tr. 1221.
Mr. Dowd testified that Raytheon’s initial CAS 413 segment closing calculation for the Optical segment, dated October 9, 2001 (approximately seven months after the Optical novation agreement was signed) asserted a $9,558,952 deficit associated with the Optical pension plan. Tr. 1176-77; PX 78. On October 18, 2001, Mr. Dowd sent a memo to the DCAA, requesting that the DCAA review Raytheon’s CAS 413 submission for Optical. Tr. 1178-79; PX 371. The DCAA was “prin-eipally responsible for addressing the government participation.” Tr. 1222. Also on October 18, 2001, Mr. Dowd sent a memo to the DCMA CIPR Center requesting that the CIPR Center review the segment closing adjustment calculation. Tr. 1179; PX 372. Mr. Dowd testified that the CIPR Center “would have reviewed the adjustment amount, the assets minus the liabilities.... Hopefully if we got the CIPR [report] in time, DCAA would incorporate the CIPR report into their final audit report and provide a bottom line number.” Tr. 1221-22. Mr. Dowd testified that he would not have sent these two letters requesting review of these calculations if he had believed that Raytheon had already waived its Optical claim. Tr. 1179. Mr. Dowd testified to receiving a February 11, 2002 e-mail from DCMA counsel Mr. Kingston, stating that no one in the government had taken the position that the government would not participate in deficit segment closing adjustments. Tr. 1171-72; PX 376.
Mr. Dowd testified that as of June 18, 2002, the DCMA CIPR Center was still reviewing Raytheon’s segment closing calculations for the Optical segment. Tr. 1181-82; PX 84. Mr. Dowd testified that as of August 14, 2002, the DCAA was still auditing Ray-theon’s segment closing calculations for the Optical segment. Tr. 1181. Mr. Dowd testified to receiving an August 14, 2002 audit report from the DCAA about the Optical segment, which incorporated the June 18, 2002 CIPR Center Report. Tr. 1179-81; PX 84. The audit report stated that the DCAA had accepted Mercer’s deficit calculation submitted on behalf of Raytheon on March 7, 2002 and had also accepted Raytheon’s proposed government participation percentage, determining that the government’s share of the Optical deficit would be $8,182,463. Id.
Mr. Dowd testified that it was his understanding that the DCMA was planning to use *261deficits to offset surplus segments. Tr. 1173. Mr. Dowd also testified to being copied on a December 9, 2002, e-mail from Mr. McGrath to Raytheon in which Mr. McGrath described an agreement between Raytheon and the government to settle all the CAS 413 segment closings together and offset surpluses and deficits against each other. Tr. 1182; PX 331. Mr. Dowd identified the open-items list for the regular Open Items meeting held on December 13, 2002; on the list, the Optical CAS 413 segment closing review was characterized as “DCAA completed field work. .DCAA had an exit with Raytheon on preliminary audit results. $8 million in adjustment due to Raytheon,” .with no reference to a novation agreement. Tr. 1199— 1201; PX 389. Mr. Dowd testified that he never prepared an Open Items status report for the Optical segment that mentioned that Raytheon had waived its CAS 413 segment closing claim by virtue of a novation agreement. Tr. 1200. Mr. Dowd also testified that prior to 2011 he never heard anyone assert that Raytheon waived its CAS 413 claims pursuant to a novation agreement. Tr. 1213.
Mr. Dowd further testified that he was the likely author of an April 22, 2003 letter from Mr. McGrath to Mr. Murphy at Raytheon, with a copy to Mr. Dowd, which stated that the DCMA agreed that the deficit adjustment amount for the Optical segment closing proposal was $8,182,463. Tr. 1192; PX 269.
Mr. Dowd also received a copy of a December 1, 2003 e-mail from Mr. McGrath to Mr. Murphy indicating that on advice of counsel dated November 19, 2003, the government would not be permitted to offset Raytheon’s segment closing surpluses and deficits. Tr. 1207; PX 335. However, the e-mail indicated that Mr. McGrath still intended to reimburse Raytheon for its CAS 413 Optical segment closing deficit. Tr. 1209; PX 335 (“for all situations where the Government has liability to Raytheon, it is still my intention to adjust final rates to reimburse Raytheon for these amounts”). Once the DCMA/DCAA Joint Guidance on the Teledyne decision came out in July 2004, the government took the position that it would not participate in any deficit segment closings where the pension costs had not been funded by the federal tax deadline for the year of the segment closing. Tr. 1210. The DCMA denied Raytheon’s Optical claim for a segment closing adjustment on September 30, 2004, based on the current tax year funding requirement in the Joint Guidance. Tr. 1210-11; PX 298. After receiving the denial letter, Raytheon submitted a demand for a final decision for the Optical segment, which was denied by Mr. McGrath on February 1, 2005. Tr. 1211, 1231; DX 126; PX 26. Mr. Dowd testified that he understood that in the common sense of the word “claim,” Raytheon believed that money was due to it and expressed that belief to the government well before 2005. Tr. 1239. Mr. Dowd agreed that Raytheon continued to pursue reimbursement for the government’s share of the Optical segment closing deficit after the Optical novation agreement was signed in March 2001, and that the DCMA and the DCAA continued to consider that claim after March 2001. Tr. 1212.
c. Rodger Christiansen
Raytheon presented the testimony of Mr. Rodger Christiansen regarding the Optical novation agreement and CAS 413 segment closing.47 Mr. Christiansen testified to having limited involvement in or. awareness of the Optical novation agreement prior to its execution on March 7, 2001. Tr. 1254-55. His involvement consisted primarily of sending a copy of a prior novation agreement that he had worked on to the individual in charge of preparing the Optical novation agreement. Id. Mr. Christiansen testified that the Optical novation agreement was in the form prescribed by FAR 42.1204(i). Tr. 1260-61. Mr. Christiansen testified that in his experience there was no deviation from the FAR form novation agreement. Tr. 1261. Mr. Christiansen further testified that it was his *262understanding that novation agreements include contracts for which final payment has not yet been paid. Tr. 1274.
In addition to providing a template for the Optical novation agreement, while acting as DCE, Mr. Christiansen received a letter from Raytheon in connection with the Optical CAS 413 segment closing on October 9, 2001, which constituted Raytheon’s initial CAS 413 submission for the Optical segment. Tr. 1264-65; PX 78. Enclosed with Raytheon’s letter was a calculation prepared by Mercer on behalf of Raytheon identifying a $9,558,952 deficit in the Optical pension funds. Id. Mr. Christiansen passed this letter on to Mr. Dowd, who was handling Ray-theon’s CAS 413 claims for the DCMA. Tr. 1266. Mr. Christiansen was also copied on another letter from Raytheon on March 7, 2002, in which Raytheon identified a government share percentage of 85.6 percent associated with the Optical segment. Tr. 1266-67; PX 83.
On December 4, 2002, Mr. Christiansen also attended the meeting of DCMA and DCAA personnel at the DCMA’s L-3 headquarters in New York to discuss outstanding items including the Optical and AIS segment closings. Tr. 1281-82; PX 388. Mr. Chris-tiansen testified that he could not recall there being any discussion of Raytheon having waived its CAS 413 claims through the Optical or AIS novation agreements. Tr. 1282-85. Mr. Christiansen testified that it had never been suggested to him prior to this litigation that Raytheon had waived its CAS 413 claims by signing the Optical novation agreement. Tr. 1314.
d. Scott Faith
The parties presented the testimony of Mr. Scott Faith, Raytheon’s Director of Contracts for the Surveillance and Reconnaissance Business at the time the Optical novation agreement was signed, who testified to his involvement as the Raytheon signatory to the Optical novation agreement. Tr. 1133. Mr. Faith has worked for Raytheon and Hughes Aircraft Company (prior to its acquisition by Raytheon) for twenty-eight years. Tr. 1130.48
As Director of Contracts for the Surveillance and Reconnaissance Business, Mr. Faith was responsible for the oversight, management, administration, negotiation and closure of all contracts related to that business. Tr. 1133. The Optical Systems business reported to the Surveillance and Reconnaissance Systems business. Tr. 1134. With respect to the Optical novation agreement, Mr. Faith was responsible for obtaining the list of contracts that were to be novated to B.F. Goodrich, and he ultimately signed the novation agreement on behalf of Raytheon. Tr. 1133-34. Prior to signing the novation agreement, Mr. Faith reviewed a list of contracts prepared by the Optical contracts lead employee against the list that he had in his database to ensure that he had a complete list of contracts. Tr. 1133-34. This list included both active contracts (those for which performance remains ongoing) and inactive contracts (those for which performance is ended but final payment has not been received), but not closed contracts (those for which performance is ended and final payment had been received). Tr. 1137, 1141. Mr. Faith testified that the list of contracts that went along with the novation agreement involved more time and effort to put together than the novation agreement itself. Tr. 1135. With regard to the novation agreement itself, Mr. Faith testified that he was not involved in its drafting, that he was unaware whether it had been prepared by Raytheon or the government, and that he did not comment on or have any communications regarding the language of the agreement before signing it. Tr. 1142-43. Mr. Faith testified to reading the novation agreement before signing it and to understanding that its function was to transfer responsibility for performance of the contracts from Raytheon to B.F. Goodrich. *263Tr. 1143. Mr. Faith further testified to having no understanding of CAS 413 at the time he signed the novation agreement. Tr. 1144. Mr. Faith explained that responsibility for CAS compliance was housed at the corporate and segment levels because the CAS impact the entire business, not individual contracts. Tr. 1144-45. On questioning by the government, Mr. Faith testified that when he signed the agreement he did not have in mind any particular' claims relating to the contracts or any particular intent to carve out any claims relating to the contracts. Tr. 1146-47.
e. Terrence Murphy
The parties also presented the testimony of Mr. Terrence Murphy, Raytheon’s Assistant Controller for Government Accounting from 2000 to 2005, who testified regarding his involvement in preparing Raytheon’s proposed Optical CAS 413 segment closing adjustment.49 As Assistant Controller for Government Accounting, Mr. Murphy was Raytheon’s primary interface with the DCMA’s Raytheon Corporate Office, and was responsible for ensuring compliance with CAS and FAR requirements. Tr. 21-22. During his tenure with Raytheon, the company underwent a major restructuring that included the divestiture of the Optical segment. Tr. 22. In connection with this restructuring, Mr. Murphy was responsible for finalizing Raytheon’s corporate restructuring packages with the government and negotiating Raytheon’s CAS 413 segment closing adjustments. Tr. 22, 29. Mr. Murphy collaborated with Mr. Michael Garvey, Raytheon’s Director of Benefits Finance, on the government share calculations. Tr. 67. Mr. Murphy testified that in the entire period when he was negotiating the Optical CAS 413 segment closing proposal, the government never suggested to him that the novation agreement for Optical precluded Raytheon’s CAS 413 claim. Tr. 62-63, 76, 123.
Mr. Murphy testified that during the time he was working on the Optical CAS 413 segment closing adjustment, he had no knowledge about the specific terms of the Optical novation agreement and was not involved in the creation of the novation agreement, though he was aware that a novation agreement was required when a business is sold to another business. Tr. 227-28. He also reemphasized that he never had any discussion with anyone from either Raytheon or the government about the terms of the Optical novation agreement until this litigation. Tr. 229.
f. Robert Cann
Raytheon presented the testimony of Robert Cann, a Raytheon corporate manager of Government Accounting from November of 2001 to 2005 and director of Corporate Government Accounting following the retirement of Mr. Murphy. Tr. 369. In both capacities, Mr. Cann was responsible for interfacing with the DCAA and the DCMA regarding government accounting issues at the corporate level. Tr. 369. Mr. Cann was responsible, along with Mr. Murphy, for computing the government’s share of the adjustment amount. Tr. 374. Along with Mr. Murphy, Mr. Cann was also responsible for preparing and negotiating Raytheon’s corporate restructuring package with the government for the divestiture of the Optical segment, including Raytheon’s CAS 413 segment closing adjustment proposal. Tr. 369-70, 389. Mr. Cann testified to a general understanding that a novation agreement was normally needed when a business was sold. Tr. 389. He further testified that during the negotiations regarding the Optical segment closing adjustment, the issue of the Optical novation agreement never came up, and that he never heard anyone say that the novation agreement precluded Raytheon’s CAS 413 claim. Tr. 389. Mr. Cann further testified that he *264had no understanding one way or the other as to whether Raytheon had waived and transferred its Optical segment closing claim in the Optical novation agreement. Tr. 416-17.
g. Michael Garvey
Raytheon presented the testimony of Michael Garvey, Raytheon’s Director of Benefits Finance from 2000 through May 2003, who testified regarding his involvement in preparing Raytheon’s proposed Optical CAS 413 segment closing adjustment. Mr. Garvey submitted a CAS 413 calculation for Optical on October 9, 2001, PX 78, following Raytheon’s receipt of an initial finding of CAS non-compliance on April 18, 2001, PX 257. Mr. Garvey submitted Raytheon’s government share calculation for Optical on March 7, 2002. Tr. 273; PX 83. Mr. Garvey was responsible for working with Raytheon’s Actuary, Mercer, to produce Raytheon’s CAS 413 segment closing calculation for Optical. Tr. 255-56.
Mr. Garvey testified to receiving a DCAA Audit report on the CAS 413 segment closing calculation submitted by Raytheon in which the DCAA took no exception to the total pension deficit proposed by Raytheon or to Raytheon’s proposed government pension share. Tr. 276-81; PX 84.
Mr. Garvey testified that in all his time working on the Optical segment closing calculations, no one ever suggested to him that Raytheon’s CAS 413 claim for the Optical segment was waived by a novation agreement between Raytheon and the government. Tr. 293-94. Mr. Garvey further testified that the subject of novation agreements never come up in any context related to the CAS 413 segment closing and that he was never involved in any discussions related to the Optical novation agreement. Tr. 293-94, 330.
h. Deborah Tully
Raytheon presented the testimony of Deborah Tully, Raytheon’s Director of Benefits Finance beginning in May 2003, when she replaced Michael Garvey. Tr. 427. Ms. Tully testified regarding her involvement in preparing Raytheon’s proposed Optical CAS 413 segment closing adjustment.
In her role at Raytheon, Ms. Tully was responsible for helping to gather government participation data for the CAS 413 segment closing analysis for the Optical segment, a task that she worked on with Mr. Terrence Murphy. Tr. 443-445. Ms. Tully also requested the assistance of the DCMA and the DCAA in her search. Tr. 445.
Ms. Tully testified that in all her time working on the Optical segment closing calculations, no one ever suggested to her that Raytheon’s CAS 413 claim for the Optical segment was waived by a novation agreement. Tr. 452. Ms. Tully further testified that she had no understanding of novation agreements prior to this litigation. Tr. 457-58.
2. Findings of fact and conclusions of law
As with the AIS segment, the consistent and overwhelming evidence adduced at trial establishes that not one of the government or Raytheon employees involved in the processing and signing the Optical novation agreement or in the negotiations surrounding the Optical CAS 413 segment closing claim understood that the waiver set forth in the Optical novation agreement, which was taken from FAR 42.1204(i),50 barred Raytheon’s claim for payment of a pension deficit based on Raytheon’s CAS 413 segment closing calculations.51 This consistent testimony from experienced government contract specialists *265at both Raytheon and within the government has led the court to conclude for all of the reasons set forth above in connection with the AIS segment closing that the Optical novation agreement waiver did riot extend to Raytheon’s CAS 413 Optical segment closing claim. Because Raytheon retained the liability for the Optical pensions and did not transfer that liability to B.F. Goodrich, the government does not face any risk of double liability for the Optical pensions by virtue of the transfer of certain contracts. In addition, as discussed at length above, because a segment closing adjustment is not contract-specific, the claim arising from the Optical CAS 413 adjustment was not contract-specific and was thus not covered by the novation agreement. Accordingly, as with Raytheon’s AIS CAS 413 segment closing claim, Ray-theon’s claim for payment of any Optical pension deficit based on its CAS 413 segment closing is not barred by the Optical novation agreement. The court therefore will consider Raytheon’s Optical pension deficit claim.52
III. Segment closing calculations
A. AIS segment closing calculations
1. AIS findings of fact
As discussed above, Raytheon created the AIS segment on January 1, 1999 following a merger of various Raytheon holdings and sold the AIS segment to L-3 on March 8, 2002.53 In addition, as discussed above, by the terms of the asset purchase agreement between Raytheon and L-3, Raytheon retained the pension plan assets and actuarial accrued liabilities for AIS. See PX 41.0112. The parties agree that under CAS 413-30(a)(20), the March 8,2002 sale resulted in a “segment closing” requiring Raytheon to perform CAS 413-50(c)(12) segment closing calculations for each of the AIS segment’s defined benefit pension plans.
There were five Raytheon defined benefit pension plans covering AIS segment employees: 1) E-Systems, Inc. Salaried Employees Retirement Plan (“Greenville Salaried plan”); 2) Retirement Plan for Hourly Employees of Greenville Division of E-Systems, Inc. (“Greenville Hourly plan”); 3) Raytheon E-Systems, Inc. Richardson/Waeo Plan (“Rieh-ardson/Waco plan”); 4) Raytheon TI Systems Employees Pension Plan (“RTIS plan”); and 5) Raytheon Company Pension Plan for Salaried Employees (“Raytheon Salaried plan”).
For each plan, as discussed above, the CAS 413-50(e)(12) segment closing provision *266required Raytheon to calculate the difference between the market value of the pension assets and the actuarial accrued pension liability for the segment. In addition, under CAS 413-50(c)(12)(vi) Raytheon was charged with calculating the government’s share of any surplus or deficit amount determined for the segment.54 In the case of a deficit, the government share would be the amount owed by the government to Raytheon; in the case of a surplus, the government share would be the amount owed by Raytheon to the government.55
As noted above, AIS and the other segment sales at issue in this case were part of a corporate restructuring program that Ray-theon began in 2000. In addition to these segments, some of the segment sales involved pension surpluses, including the RE & C, Semiconductor, and Montek segment closings. See supra note 9; Tr. 46-47, Tr. 74-75 (Murphy). During the process of reviewing Raytheon’s segment closing adjustment and government share calculations, the government contracting officers and Raytheon engaged in a broad effort to resolve all of the surplus and deficit segment closures together, including a plan to settle all the CAS 413 segment closings individually while determining the final amount owed collectively by offsetting deficits and surpluses. Tr. 1348-49 (McGrath); PX 333.
In December 2000, Raytheon submitted its first CAS 413 segment closing adjustment proposal for the surplus RE & C segment. Tr. 31-32 (Murphy); Tr. 1176 (Dowd). Ray-theon and government representatives initially agreed to use RE & C as a model for the other segment closing adjustments, delaying submission of other CAS segment closing adjustment proposals until after the audit of the RE & C proposal was completed. Tr. 32-33 (Murphy); 1175 (Dowd); 358 (Garvey) (RE & C was to be used “as a template” for the rest of the segment closing submissions). However, the government later changed course and determined that it could not offset segment deficits and segment surpluses. Rather each segment closing would be resolved separately. PX 343; Tr. 33 (Murphy).
For each segment closing, including AIS, Raytheon submitted its segment closing analysis of pension assets and liabilities based on the calculations made by its pension actuary Mercer. Mercer also prepared reports on its analysis of the pension assets and liabilities of the various segments for review by the DCMA CIPR Center and the DCAA. The DCMA CIPR Center was responsible for reviewing Raytheon’s calculation of the pension plan surplus or deficit amount. Tr. 530 (Dyer); Tr. 607-08 (Sheley56); PX 45. The *267DCAA was responsible for auditing the government share calculations of that amount. Id.
The lead Mercer actuaries who worked on these calculations and who testified at trial were Mr. Jonathan Barry (for the AIS and Aerospace segment), Mr. James Winer (for the Optical segment), and Ms. Deborah Tully 57 (for the alleged PWF segment). Though specific actuaries took the lead in each segment, they worked together reviewing one another’s reports before submitting Raytheon’s calculations to the government for review. Tr. 884-85 (Barry).
Raytheon first submitted its AIS segment closing calculations to the government on July 12, 2002. See PX 56. In brief, Mercer determined that the assets and liabilities attributable to the AIS segment from the various pension plans associated with AIS resulted in a deficit. The government reviewers charged with analyzing Mercer’s work did not raise any concerns with Mercer’s analysis of the segment closing deficit amount.58 Raytheon’s submission to the government included the then-uncontested segment closing deficit amount but did not include a calculation of the government’s share of the adjustment amount. According to Raytheon, it did not have enough data to prepare the government share calculation. Tr. 282-83 (Garvey). Raytheon employees testified that Raytheon had difficulty in collecting pension cost data, which the company did not typically maintain prior to the revision of CAS 413 in 1995. Tr. 45^7 (Murphy); Tr. 374-75 (Cann); Tr. 445 (Tully).
In order to find the data necessary to prepare a government share calculation, Raytheon and government witnesses testified that Raytheon worked with the purchaser L-3, as well as the DCMA and the DCAA, to prepare “a reasonable determination of the government participation.” Tr. 375 (Cann). In order to assist Raytheon, on January 7, 2003, the contracting officer forwarded Raytheon’s request to the DCAA seeking assistance in gathering government participation data for the AIS segment. See PX 87. Based on the information it had collected through this process, Raytheon, on February 25, 2003, submitted its calculation of the government’s share of the AIS segment pension deficit. PX 57. The calculation used sales data provided by L-3 for the years 1998 through 2001. Id.; Tr. 93-94 (Murphy). Raytheon did not use pension cost data. Raytheon noted that it based its analysis on the limited number of years for which it had government sales data. Ray-theon in its submission again requested government assistance in searching for any DCAA audit reports that might better inform the government participation analysis. PX 57.
During this same time frame, Raytheon provided similar government share calculations based on sales data for all segments, whether they were in surplus or deficit positions. Tr. 46-47 (Murphy) (“[I]f, for example, 75 percent of the sales were U.S. Government CAS covered contracts then we would apply the 75 percent to either the surplus or the deficit to come up with the government share.”). The government ultimately agreed to settle surplus segments on the sales data approach. Id.
On July 17, 2003, the DCAA issued an audit report stating that Raytheon’s segment closing calculation for the AIS segment was noncompliant with CAS 413-50(c)(12)(vi) because the calculation was (a) based on sales data rather than pension costs and (b) based on an unrepresentative government participation period. PX 99.0001, .0003. The audit report did not identify any issues with respect to Raytheon’s calculation of the pension deficit. By letter dated August 11, 2003, the contracting officer notified Raytheon of his initial finding that Raytheon was in noncom-plianee with CAS 413-50(c)(12)(vi) for the same two reasons stated in the July 17, 2003 DCAA audit report. PX 337. The contracting officer stated: “Raytheon has provided some additional information since its CAS *268413 calculation was submitted to the Government in July 2002. Nevertheless, the Government still does not have the pension cost data, nor adequate support for a representative period, to be able to properly determine any adjustment under CAS 413.” Id.
As also discussed above, in July 2004, the DCMA and the DCAA issued a Joint Guidance for implementing the Federal Circuit’s ruling in Allegheny Teledyne. See Tr. 1369 (McGrath); DX 114. In August 2004, the government issued letters to Raytheon seeking payment on the two of the segments with a pension surplus, and on September 21, 2004, Raytheon issued payment to the government to settle those surplus segment closures.59 Thereafter, on September 30, 2004, the contracting officer denied Raytheon’s request for the government to fund its share of the AIS CAS 413 segment closing deficit. Tr. 1368-69, 1375 (McGrath); PX 299. Relying upon the DCMA/DCAA Joint Guidance, see supra note 21, the contracting officer rejected Raytheon’s AIS segment closing deficit analysis because Raytheon had failed to fund the AIS pension costs by the federal tax deadline for the year of the segment closing. Tr. 1370 (McGrath); PX 299. There was no mention of any problems with Raytheon’s calculations.
By letter dated January 24, 2005, Ray-theon submitted a certified claim60 government’s share of the AIS segment closing adjustment, including a government share calculation based upon sales data. PX 19. The contracting officer denied Raytheon’s certified claim in its entirety in a final decision dated March 7, 2005. PX 20. The primary reason stated by the contracting officer for denying Raytheon’s certified claim was Raytheon’s failure to fund the pension costs in the current tax year pursuant to FAR 31.205-6(j)(1)(i) and (j)(2)(i)(A). PX 20. Mr. McGrath, the contracting officer, noted that the government also questioned Ray-theon’s reliance on sales data to determine the government share, stating as follows:
Although a moot point because the Government has no intention of sharing in this pension deficit adjustment, the Government sees nothing in CAS 413-60(c)(9) that allows the use of CAS-covered sales as a proxy for pension plan costs in determining the amount of the Government’s share.
Tr. 1373-74; PX 20.
At trial, Raytheon presented expert testimony from Mr. Steven Vernon61 to support its claim for $56,274,371.39 from the government in connection with sale of the AIS *269segment to L-3. The government presented expert testimony from Mr. Colin England62 challenging various aspects of Raytheon’s segment closing adjustment calculations in connection with the three AIS-related pension plans remaining at issue based on earlier court rulings:63 Riehardson/Waco, RTIS, and Raytheon Salaried. The government also presented testimony challenging Ray-theon’s calculations of the government share of the adjustment for each plan, except for the Raytheon Salaried plan.64 In this connection, the government offered testimony with alternative calculations showing that the total government share of the AIS segment’s overall deficit was $47,245,055.
Raytheon’s trial expert, Steven Vernon, presented calculations for each AIS pension plan as set forth on the chart below:
Pension Plan Surplus/(Deficit)
Greenville Salaried ($58,187,419)
Greenville Hourly ($13,260,688)
Richardson/Waeo $176,462
RTIS ($82,071)
Raytheon Salaried $3,097,023
Total AIS Segment Closing Adjustment ($68,256,693)
PX 428.0024. With regard to the government’s share of the AIS ($68,256,693) pension deficit, Raytheon presented evidence to show the government’s share of that pension deficit equal to $56,274,371.39, based on the following totals:
Total Government A. Government B. Government C. Government Share Surplus/ Participation Participation Share Percentage D. Surplus/ (Deficit) Numerator Denominator (A/B) (Deficit) Amount (C x D)
Greenville Sala- $135,828,017.00 $172,249,066.00 78.8555898469% ($71,448,107.00) ($56,340,826.21) ried/Hourly
Richardson/Waco $ 8,546,760.00 $ 11,125,883.00 76.8187118272% $176,462.00 $135,555.84
RTIS$ 64,961,674.00 $ 77,154,720,00 84.1966298368% ($82,071.00)($69,101.02)
Raytheon Salaried N/A N/A 0.000% $3,097,023 $0.00
AIS — Total ($56,274,371.39)
See PX 428.0024, .0054; see also PX 19.
Mr. England, on behalf of the government, challenged some of the data and several of the assumptions used by Mr. Vernon to calculate Raytheon’s AIS pension assets and liabilities. Mr. England testified that in his opinion Raytheon’s AIS pension deficit was $66,215,724, or $2,040,969 less than Mr. Vernon’s calculations, broken down as follows:
*270Pension Plan Surplus/CDeficit)
Greenville Salaried ($58,187,419)
Greenville Hourly ($13,260,688)
Richardson/Waco $682,593
RTIS ($150,493)
Raytheon Salaried $4,700,283
Total AIS Segment Closing
Adjustment ($66,215,724)
DX 241.0005. The government also challenged Raytheon’s government share calculations. The government presented non-expert testimony and evidence to show that the government’s share of the AIS segment closing deficit was $47,245,055:
Plan (1) Surplus/ (Deficit) (2) Government Share Percentage (3) Government Share (4) = (2) x (3)
Greenville Salaried (58,187,419) (38,710,808)
Original CAS Period (25,157,449) 49.99% (12,576,491)
Revised CAS Period (33,029,970) 79.12% (26,134,317)
Greenville Hourly (13,260,688) (8,822,044)
Original CAS Period (5,733,285) 49.! (2,866,134)
Revised CAS Period (7,527,403) 79.12% (5,955,910)
Riehardson/Waco 682,593 415,731
Original CAS Period 538,361 58.27%
Revised CAS Period 144,232 70.74%
RTIS (150,493) (127,934)
Original CAS Period 0 0.00% 0
Revised CAS Period (150,493) 85. (127,934)
Raytheon Salaried 4,700,283 0
Original CAS Period 4,700,283 0.00% 0
Revised CAS Period 0 0.00% 0
AIS — Total (47,245,055)
Tr. 1445-92; DX 111; DX 112; DX 130; DX 178; DX 178A.
2. Standard of review
Before turning to the government’s specific objections to Raytheon’s AIS segment closing deficit calculation, the court first notes that under the CDA, the court reviews the contracting officer’s decision de novo. 41 U.S.C. § 609(a)(3) (this provision of the CDA is now codified at 41 U.S.C. § 7104(b)(4)). The court also notes that in this case the burden of proof is on the government to establish that Raytheon’s segment closing calculation violated the CAS.
See Gen. Dynamics Corp., ASBCA No. 56744, 11-2 BCA ¶ 34,787, 2011 WL 2624447 (citing Ball Corp., ASBCA No. 49118, 00-1 BCA ¶ 30,864, 2000 WL 362429).65 In evaluating the government’s contention that Ray-theon’s calculations do not comport with the CAS, the court looks to any guidance the CAS Board (“CASB”) has published. Perry v. Martin Marietta Corp., 47 F.3d 1134, 1137 (Fed.Cir.1995). In addition, as with any provision of the CAS, the court will read the subject CAS section “together with the other provisions of the regulation” in order to ensure that the court construes the CAS provision in context. Gen. Elec. Co. v. United States, 92 Fed.Cl. 798, 812 (2010). Finally, to *271the extent the CAS requirements are not clear from the face of the regulation or available CASB guidance, the court will consider “how various actuarial terms found in CAS 413 are used in practice” to guide its decision. Gen. Motors Corp., 78 Fed.Cl. at 338 n. 9. In this connection, the court recognizes that there may be more than one correct approach to a CAS calculation. As the CASB noted in the Preamble to the Revised CAS 412 and CAS 413, “the sophistication of modern actuarial valuations” enables the use of “actuarial assumptions that are individually reasonable.” 60 Fed.Reg. 16,634, 16,536 (Mar. 30, 1995).
It is against this backdrop that the court will first address the disputes with respect to the calculation of assets and liabilities that gave rise to the overall AIS segment closing deficit. These include: 1) Raytheon’s accounting for retirees and other “inaetives”; 2) Raytheon’s use of linear interpolation for estimating the value of pension plan assets; 3) Raytheon’s retirement assumptions upon the sale of a segment; 4) Raytheon’s inclusion of phased-in-benefits in calculating pension liabilities; and 5) Raytheon’s use of allegedly oubof-date benefit payment data in rolling forward pension assets and liabilities for one of the AIS pension plans. After addressing these issues, the court will turn to the parties’ disputes over the calculation of the government’s share of the AIS segment dosing pension deficit.
3. The government has not met its burden with regard to Raytheon’s calculation of the AIS segment closing adjustment deficit based on the calculation of plan assets and liabilities
a. Raytheon’s search for inaetives
One of the major differences between the parties’ treatment of the AIS pension assets and liabilities relates to the treatment of “inactive” employees in Raytheon’s calculations. “Inaetives” are those employees who stopped working for the segment prior to the segment closing and who are either receiving or are entitled to receive a pension based on their work for the segment.66 In its pension asset and liability calculations, Raytheon included only those inaetives who Raytheon identified as having “last worked” at AIS prior to stopping work at Raytheon. Mr. England contends that Raytheon erred in limiting its segment closing adjustment calculations to only those employees who had “last worked” at AIS. Mr. England asserts that the AIS segment grew out of components that pre-existed the creation of AIS and that Raytheon was obligated under the CAS to include inactive pension plan participants from the business units that made up AIS in its calculations. Mr. England contends that Raytheon, by failing to account for all of the inaetives, failed to include a correct value for the assets and liabilities subject to the segment closing calculation. According to Mr. England, where the data were missing, Raytheon should have included an estimate of inaetives. Had it done so, Mr. England opines, in those plans with a surplus, the surplus would have increased. Tr. 1872.67 *272Mr. England acknowledges that by including inaetives in situations where there is a plan deficit, such as in the RTIS plan,68 the AIS deficit would be larger. Id. Mr. England contends, however, that the CAS compels this result.
Raytheon does not dispute that the assets and liabilities for inactive plan participants had to be included in the segment closing adjustment calculation. Tr. 801-02 (Mr. Winer, a Mercer actuary who prepared the original Raytheon calculations, confirmed that such inaetives must be included in the CAS 413 liability calculation); Tr. 1694-95 (Vernon) (including such inaetives is “mandatory” under CAS 413 if records can be located); see Gen. Elec. Co. v. United States, 60 Fed.Cl. 782, 795-96 (2004). Raytheon argues in response to Mr. England’s criticisms, however, that it fulfilled its CAS 413 obligations by including in its calculations the inaetives who had “last worked” at AIS. Raytheon argues that it did not have a CAS obligation to include in its calculation the pension assets and liabilities of inaetives that may have worked in the business units that later became AIS. Raytheon contends that without adequate records from the former business units to determine inaetives from earlier units, Raytheon’s decision to limit its inclusion of inaetives to those who had “last worked” at the AIS segment met the requirements of the CAS.
The dispute over the inclusion of “inac-tives” is an issue that arises only in the context of composite pension plans, in which the pension assets and liabilities for many segments are accounted for in a single plan, as opposed to pension plans that are accounted for on a segment-by-segment basis. Tr. 1948 (England) (“The inactive participants are only excluded when Raytheon used composite accounting.”). For the AIS segment, Raytheon accounted for the RTIS plan and Raytheon Salaried plan on a composite basis. Tr. 2081 (England). Where the pension plan has been accounted for on a composite basis, reconstructing the work history of each plan participant who may have moved from one business unit or segment to another is not only difficult, but can be impossible because there are no records.
CAS 413-50(c)(12)(ii)69 provides that when a segment using composite accounting closes, the contractor must use the methods in CAS 413-50(c)(5)70 to allocate a portion of the composite pension plan’s assets to the closed segment.71 CAS 413-50(c)(5) provides two alternate methods for allocating composite plan assets to a segment. Section (ec)(5)(i) *273provides for an allocation of pension plan assets based on the prior contributions attributable to the segment to the composite pension plan and the subsequent income, benefits, and expenses that have been “contributed by, or on behalf of, the segment.” This (c)(5)(i) method is used if the “necessary data [as prescribed by (c)(5)(i) ] are readily determinable.”72 If, however, such data are not readily determinable “for certain prior periods,” then the contractor must use the approach set forth in Section (c)(5)(ii), “as of the earliest date such data are available.” The (c)(5)(ii) approach requires the allocation of the assets of the pension plan “based on the ratio of the actuarial accrued liability of the segment to the plan as a whole.” The critical factor, therefore, in choosing between these two approaches is whether the data “are readily capable of being determined” for all prior periods, rather than merely certain periods. The Mercer report demonstrates that for the AIS segment, Raytheon relied on the ratio required under (c)(5)(ii) to calculate the assets and liabilities for the Raytheon Salaried Plan and the RTIS Plan. PX 56.0002 (“Per CAS 413-50(c)(5)(ii), when a group has not historically been tracked by segment, the ... assets attributable to a given group of employees is equal to the ratio of the Accrued Liability (AL) for the group over the Accrued Liability for the entire plan.”).
After reviewing Raytheon’s calculations for AIS, Mr. England noted that there were no assets or liabilities attributable to inactive participants included in Raytheon’s segment closing adjustment calculations for the composite RTIS and Salaried Pension Plans. Mercer’s initial segment closing calculations for those plans did not include any inactive participants. Tr. 849 (Barry); Tr. 2081 (England). Mr. England testified that Mercer’s calculations were flawed because Ray-theon failed to include inactive participants. Tr. 1943-44. Mr. England pointed to two primary pieces of evidence to support his opinion that inaetives should have been included in Raytheon’s calculation for the AIS portion of the RTIS and Salaried plans. First, Mr. England noted that inaetives for the Salaried plan as a whole accounted for 62 percent of the total plan liability, and yet Raytheon’s AIS segment calculation did not match that division between actives and inac-tives. DX 241.0049; Tr. 1942-44. Second, Mr. England noted that inaetives should have been included in the calculation because in two other AIS plans accounted for on a segment-by-segment basis, the Greenville Salaried plan and the Greenville Hourly plan, inaetives represented 63.87 percent and 52.14 percent of the total AIS segment liability, respectively. Tr. 1942. In Mr. England’s opinion, if other units making up AIS had a significant number of inaetives, then the same should be true for the RTIS and Salaried plans.
In order to correct for this alleged error in Raytheon’s calculations, Mr. England performed a calculation for each composite pension plan in which he estimated the number of inactive plan participants he believed were likely to have been omitted in Raytheon’s search. Mr. England utilized two different methods for estimating inaetives in his segment-closing calculations. In one, he used a ratio based on the number of plan participants, and in the other, he used a ratio based on plan liabilities. Tr. 1949-50; DX 241.0054. For the RTIS plan, he assumed that the percentage of the RTIS plan’s inactive members attributable to the AIS segment was the same as the percentage of the RTIS plan’s active members attributable to the AIS segment. He based this calculation on existing data for active members in the RTIS plan as a whole and active members in the RTIS plan who were also in the AIS segment. Tr. 1949. He then took that ratio and applied it to the RTIS plan inaetives. Id. (“[I]f active participants were one percent of the total, we assumed that there was also one percent of the inaetives.”). For the Salaried plan, he assumed that the percentage of the Salaried plan’s inactive member liability attributable to AIS inactive members was the same as the percentage of the Salaried plan’s active member liability attributable to AIS active members. Tr. 1950. Again, he ap*274plied the ratio of AIS active member liability to the plan as a whole to come up with a number for AIS inactive member liability. Id. Based on his calculations, Mr. England testified that Raytheon had understated the RTIS plan deficit by $93,417 and understated the Salaried plan surplus by $1,591,902. See DX 161.0039.
While Mr. England challenged Ray-theon’s use of the “last place worked” approach to search for inactives, the evidence presented established that Raytheon’s search for inactives using the “last place worked” approach was thorough and that under that approach Raytheon reasonably concluded that there were no AIS “inactives” associated with the RTIS and Salaried plans. In order to determine whether its segment closing calculations omitted inactive participants in the RTIS and Raytheon Salaried plans associated with the AIS segment, Raytheon had the Raytheon Benefits Center73 and Mercer search their records for participants in the composite plans to determine their last place worked at Raytheon. The search for inac-tives for AIS was conducted by Jonathan Barry, a Mercer actuary. See PX 18 at App. A. Mercer provided the following explanation of the process used for AIS:
Raytheon requested that its benefit administrator, the RBC [Raytheon Benefits Center], create a listing of all terminated and retired employees who worked in the affected business units at one time. Using the “last place worked” methodology, Mercer then reviewed the listing to capture data on all participants who terminated or retired from Raytheon at the time they were in one of these business units. We did not find any additional AIS ... participants.[74]
Id. at App. A Mercer also searched its databases in an effort to discover additional inac-tives.75 Tr. 850 (Barry); Tr. 697 (Winer). It was not until after Mercer conducted its search that Raytheon determined there were no inactive participants in the RTIS or Ray-theon Salaried plans who had last worked for the AIS segment. Id.; Tr. 850-51 (Barry).
Raytheon argues that there are three further reasons why there might not have been any inactives from the AIS segment associated with these composite plans. First, the AIS segment was in existence for only a short period of time compared to the pension plans as a whole, having been established in 1999 and closed on March 8, 2002. Thus, one might reasonably expect that fewer participants would have retired or terminated from AIS than from the pension plans as a whole. Second, in the ease of RTIS, AIS had only thirty-four active participants in the plan and in a group that small, one might expect to find few or no inactive participants. Third, Mr. Vernon, Raytheon’s expert actuary, also testified that in the case of RTIS, because participants could elect a lump sum payout or five-year certain annuity, if a participant elected one of those options, a common election in Mr. Vernon’s opinion, the participant’s liabilities would no longer be identified as part of the AIS segment after five years. Tr. 1603-04 (Vernon)76
As previously stated, CAS 413-50(c)(12) requires that the contractor undertake a segment accounting exercise to determine the pension assets allocable to the closed segment pursuant to CAS 413-50(c)(5). See CAS 413 — 50(c)(12)(ii); Gen. Elec. Co., 60 Fed. *275Cl. at 796. Regardless of whether the data are readily determinable for all prior periods, requiring use of the (c)(5)(i) method, or are available for only certain prior periods, enabling use of the (c)(5)(ii) method, a contractor must allocate composite plan assets based as closely as practicable upon the actual experience of the segment in the plan. The testimony and evidence introduced at trial and summarized above established that Mercer’s search for inactive participants who “last worked” at Raytheon’s AIS segment was thorough and reasonable and that Mercer was not able to attribute any inaetives to AIS from the subject plans based on the available records. Without specific evidence to show that Raytheon failed to include known inactives from units that made up AIS in its calculations regarding the RTIS plan or Salaried plan, the court cannot say that Ray-theon failed to comply with the CAS. Mr. England’s methods for estimating inactives are not mandated by any specific requirement in the CAS nor are they identified as required methods in any CAS guidance. In such circumstances, the court is not prepared to find that a calculation based on available and verifiable data is unsupported. Accordingly, the court concludes that Raytheon’s reliance on the last place worked methodology to determine the share of pension assets attributable to the AIS segment was compliant with CAS 413-50(c)(12).
b. Raytheon’s use of linear interpolation
Another major government objection to Raytheon’s calculation involves Raytheon’s use of linear interpolation when the actual value of total plan assets is not available at the time of the segment closing. This dispute implicates each of the pension plans in dispute in the AIS segment, including the Riehardson/Waco plan, RTIS plan, and Salaried plan. CAS 413-50(c)(12)(iii) requires that the market value of the assets on the day of the segment closing be used, unless using that date would result in an inequitable calculation. Id.77 The AIS segment closed on March 8, 2002, on a day other than the first of the month.78 Because the assets in Ray-theon’s pension plans were valued on the first day of the month, the actual market value of the pension plan assets were not available for the date of the segment closing.79 As a result, Raytheon’s actuary used an estimation method based on linear interpolation to determine the market value of the assets on that date. Mr. England, on behalf of the government, challenged that approach and opined that the CAS required another estimation method as being the most reasonable under actuarial standards of practice.
The evidence established that in performing Raytheon’s segment closing calculations, Raytheon’s actuary, Mercer, utilized linear interpolation to estimate the assets held in each of the pension plans associated with the AIS segment on the date of the AIS segment closing. Linear interpolation is a relatively straight forward method of estimation. In this ease, the practice involved three basic steps. First, Raytheon took the value of the assets in a pension plan on the first day of the month in which a segment closing occurred and the value of the assets in that pension plan on the first day of the month following the segment closing and deter*276mined the difference in the two values. Second, Raytheon divided the difference in the value of the assets held by the pension plan by the number of days in the month to determine an average daily gain or loss for the month. Finally, Raytheon multiplied this average daily gain or loss against the number of days in the month, pro-rating the total growth or loss to the date of the segment closing.
Mr. England opined that this approach was in error and that Raytheon, instead, should have used proxy indices. In Mr. England’s opinion, the use of published indices as a proxy is the preferred method for estimating asset values. Mr. England based his opinion upon his reading of Actuarial Standard of Practice No. 44: Selection and Use of Asset Valuation Methods for Pension Valuations (“ASOP 44”), an actuarial standard of practice that was adopted by the Actuarial Standards Board in 2007 for use in valuations performed on or after March 15, 2008. See DX 192. ASOP 44 states, in relevant part:
Sometimes asset values as of the measurement date are not available. In these situations, the actuary should select an asset valuation method that adjusts the value of the assets for the time between the date as of which asset values are available, and the measurement date. Such an asset valuation method may reference appropriate published asset indices, or involve an adjustment using another reasonable method.
See DX 192 at § 3.2.4. Mr. England testified that based on his calculations, the difference in this regard would be $506,131 for Richardson/Waco, $24,704 for RTIS, and $269,464 for the Salaried Plan. DX 161.0040.
Mr. England testified that using the proxy index approach required that he first make an assumption about the asset mix (the breakdown of assets between equities and fixed-income securities in the Raytheon master trust), and then select an index for each asset class. He testified that he assumed a “60/40 mix” of 60 percent equities and 40 percent fixed-income securities. He then explained that he selected a widely available index for each of the asset classes: the S & P 500 Index for the equities and the American Funds Bond Fund of America for the fixed-income assets. Tr. 1967 (England); DX 241.0062.80 Mr. England testified that he used a 60/40 mix because it is widely used and was the assumption that the Pension Benefit Guaranty Corporation was using at the time of the segment closings in this ease. Tr. 1902-03 (England). Mr. England testified that he felt the 60/40 mix was also appropriate because the actual asset allocation of the Raytheon Master Trust as of January 1, 2001 and 2002 was approximately 72/21 in 2001 and 68/26 in 2002. DX 144.0053; Tr. 1968-70 (England).
Mr. England conceded that there is nothing in the CAS or any other law that compels the use of proxy indices, but explained that in his view the use of proxy indices is the most reasonable method of estimating pension plan assets based on his understanding of ASOP 44. Mr. England testified that linear interpolation is appropriate for functions in which the values are continuously increasing or decreasing between the known values, as opposed to functions in which values may rise or fall between two endpoints. Tr. 1900-01 (lineal' interpolation is appropriate only for “monotonically increasing or decreasing functions”), Tr. 1964-66 (linear interpolation only appropriate for curves that “approximate” linear curves, and asset value curve is “clearly not linear”). Mr. England viewed proxy indices as a preferred method of estimating the assets in the Raytheon pension plans’ portfolio, because ASOP 44 specifically mentions “appropriate published asset indices,” while linear interpolation is included as among the universe of “[jother reasonable method[s]>” and because section 3.2.6 of ASOP 44 requires consideration of asset volatility in selecting an asset estimation method.81
*277In response to Mr. England’s criticisms, Mr. Vernon and Mr. Winer both testified that linear interpolation is a commonly accepted actuarial technique, see Tr. 1598,1617 (Vernon); Tr. 691 (Winer). They further testified that using the interpolation method to estimate the market value of the assets was reasonable in this case. Tr. 691 (Winer); Tr., 1683-84 (Vernon). Mr. Vernon testified that he determined using linear interpolation was preferable to other asset estimation methods. Tr. 1683-86 (Vernon) (“[W]e used [linear interpolation] because it’s a simple approach.... [I]t doesn’t rely on making a number of assumptions which may or may not be correct. And it has no bias one way or the other versus underestimating or overestimating what these assets are.”); see also PX 428.0047-.0050.
Additionally, Mr. Vernon criticized Mr. England’s use of a 60/40 mix of assets, explaining that the proxy indices selected and the percentage mix used by Mr. England did not coincide with the information known about the holdings of the plan. Mr. Vernon testified, in part, as follows:
First of all, that 60/40 mix doesn’t reflect what the Raytheon plan was in. We show evidence here that as of the beginning of 1999 the Raytheon plan was 20 percent invested in fixed income, not 40 percent. At the beginning of 2000 it was 14 percent invested in fixed income, not 40 percent. And so that 40 percent assumption is not reasonable.
If we ... look at the actual indices he used. For the stock market or equities he used the S & P 500 for an index. That doesn’t reflect what the Raytheon plan was invested in. They had international stocks, whereas the S & P 500 is just U.S. stocks.
The Raytheon plan actually had Raytheon stock in it. It had some real estate in it. It had small cap and mid cap.... And so we believe it’s difficult to try and find an index that’s going to reflect what the Ray-theon plan was invested in. And so if you pick different indices you’d have different results.
_he could have used other indices, but even still it’s hard to find an index that’s going to' match what the Raytheon plan was invested in. This is an example of what we’re saying is that we’d prefer to use a method that relies on as few assumptions as possible rather than making an assumption that isn’t appropriate.
Tr. 1683-86 (Vernon); see also PX 428.0047-.0050.
Mr. Vernon further testified that in his view the use of linear interpolation in this case complied with the requirements of ASOP 44. See Tr. 1733, 1837-38.82 Mr. Win-er also testified that Mercer’s calculation of the market value of the assets using linear interpolation followed ASOP 44. See Tr. 693 (Winer).
The CAS is silent on how pension plan assets should be estimated where the value of plan assets are unknown on the date of segment closing. The court is also not aware of any CASB guidance on the subject of whether proxy indices, linear interpolation, or any other asset estimation method should be favored to value assets as of the segment closing See Tr. 1884 (England) (“I don’t think the CAS mandates any approach.”); Tr. 1680 (Vernon) (“Now, CAS 413 does not have any provisions for specifying how assets are to be valued as of the segment closing date around this issue, so there’s no guidance in CAS 413 on this.”). In practice, each of the actuarial experts who testified agreed that both linear interpolation and proxy indices are, as a general matter, appropriate and reasonable methods for estimating assets. Tr. 1598, *2781618, 1854-55 (Vernon); Tr. 1900 (England). Moreover, in his first expert report, Mr. England initially did not dispute Raytheon’s use of linear inteipolation. DX 146.0029. Mr. England then determined in his fourth expert report, based on his reading of ASOP 44, that the use of proxy indices would be more appropriate. See DX 161.0011 (“After closer review of Mr. Vernon’s calculations we disagree with Mr. Vernon’s analysis for every plan. This disagreement is primarily due to Mr. Vernon’s method of estimating the assets as of the segment closing date by prorating the beginning and end of month values-”).
The court finds that the professional standard on which Mr. England relies, ASOP 44, permits rather than mandates the use of indices, allowing that an actuary “may” choose between more than one reasonable method of asset estimation. See DX 192 § 3.2.4 (“[A]n asset valuation method may reference appropriate published asset indi-ces, or involve an adjustment using another reasonable method.”). Accordingly, the court does not read ASOP 44 to compel Raytheon to follow Mr. England's preferred method under ASOP 44. The court further finds that linear interpolation was a reasonable method for Raytheon to utilize in estimating pension plan assets. Therefore, the court finds that Raytheon’s use of the linear interpolation is compliant with CAS 413-50(e)(12)(iii)’s requirement to utilize the market value of the assets “as of the date of the [AIS segment closing].”
c. Raytheon’s use of a one-hundred percent retirement assumption
Another major dispute over Raytheon’s segment closing adjustment concerns whether Raytheon impermissibly changed its actuarial assumptions with regard to the retirement of retirement-eligible plan participants in preparing its segment closing calculations for all of the plans in dispute in the AIS segment.83 In computing the actuarial accrued liability for the segment, CAS 413-50(c)(12)(i) requires that “[t]he actuarial assumptions employed shall be consistent with the current and prior long term assumptions used in the measurement of pension costs.” CAS 413-50(c)(12)(i). The same requirement applied under the original CAS 413. See Gen. Motors Corp., 78 Fed.Cl. at 342-43. The assumptions used in the measurement of pension costs are governed by CAS 412-40(b)(2), which states in relevant part: “Each actuarial assumption used to measure pension cost shall be separately identified and shall represent the contractor’s best estimates of anticipated experience under the plan, taking into account past experience and reasonable expectations.” CAS 412-40(b)(2). The CAS Board recognized in its comments to the 1995 amendments to CAS 412 and 413 that a contractor could, however, revise its actuarial assumptions “based on a persuasive actuarial experience study.” 60 Fed.Reg. 16,534, 16,539 (Mar. 30, 1995).
In its annual CAS 412 measurement of pension cost for all of Raytheon’s pension plans, Mercer made two assumptions relevant to the retirement of plan participants. Mercer first assumed probabilities of termination of plan participants at various ages. Tr. 775-76 (Winer). Based on participants’ assumed termination ages, Mercer then knew whether the person would be eligible under the plan to retire immediately at that age. If a participant was eligible to retire immediately at their assumed termination age, Mercer then assumed the participant would commence benefits immediately; otherwise, Mercer assumed the participant would defer the commencement of his or her benefits. Tr. 775 (Winer) (“[0]ur calculations assume that if somebody terminates over eligible for retirement, then you retire at that age. That’s the way the actuarial calculations work.”). Mr. Barry explained the process in his testimony as follows:
Q So you don’t simply assume when you’re doing a valuation that if people are eligible to retire that they do so?
A Not necessarily, we assume that if a person terminates when they are eligible to retire that they will retire.
THE COURT: Terminate meaning?
*279THE WITNESS: So in a valuation there’s really three kinds of people. There’s active people, terminated vested people, retired people. Retired people, we know what they’re doing. Terminated and vested, we assume that they’ll defer until age 65 to get their benefit. Active people, we have to make assumptions about what happens over time. Over time some of them will terminate, and eventually some of them will retire. So in a valuation we assume that when somebody reaches the eligibility for any sort of subsidized retirement we have a probability of retirement and then we assume that they will in fact retire in the valuation.
Tr. 896-97 (Barry).
In preparing the CAS 413 segment closing calculations for each of the plans in dispute, Mercer made one assumption relevant to the retirement of plan participants. Mercer assumed that if a participant (previously active and now terminated from Raytheon by virtue of the sale) was eligible to retire on the segment closing date (the date of termination) based upon his or her actual age and years of service, then the participant would retire and take benefits immediately. For each participant who was not eligible to retire, Mercer assumed the participant would defer the commencement of his or her benefits. Tr. 829 (Winer); Tr. 1671-72, 1747-48 (Vernon). Mercer further assumed that everyone eligible to retire on the day of segment closing retired that day. Tr. 1744 (Vernon). If a plan participant was eligible for early retirement the assumption was the participant would retire that day. Id.
Mr. Winer provided the following example of how these two scenarios play out in practice:
A What we’re saying is once somebody becomes a terminated employee, if they’re eligible for retirement, we assume they take retirement. If they’re not eligible, then they get a deferred benefit. That’s the way the value — that’s our assumption as well.
Q And in your chart, if that person at 65 had actually taken early retirement, would it still be under the 45 percent, or for that person, would you assume 100 percent?
A Well, 65 is normal retirement. But what we assume is if you reach 65 and you’re active, 45 percent of those people will choose retirement.
Q And if their segment closed and they were all terminated—
A We’d assume they’d all take retirement.
Q And the option would be what, forego retirement?
A Yeah. It doesn’t make sense if you’re not accruing any more benefit and you’re not working.
Tr. 828-29 (Winer).
Mr. England explained that Mercer’s assumption that all active participants eligible to retire would do so on the segment closing date (“one-hundred percent retirement assumption”), was not valid under the CAS because Mercer did not use this assumption in the annual valuations. DX 161.0030. Mr. England challenged Raytheon’s one-hundred percent retirement assumption because this retirement assumption was different from the one that Raytheon used for purposes of its ongoing CAS 412 valuations and because Raytheon had not provided any persuasive actuarial experience to justify the change. Mr. England observed that in its annual pension calculation Raytheon, rather than assuming that all participants who left Ray-theon with retirement eligibility would immediately retire, would normally assume that terminated-vested participants would not retire until they reached normal retirement age of sixty-five. Tr. 1909-10 (“[I]f you have somebody who is terminated with a vested benefit, you assume that they will retire at the normal retirement date .... you assume that they retire at age [sixty-five], and that is because the normal retirement date in all of these plans, I believe, is [sixty-five], but normally you would simply assume that all separated [ ] vesteds defer to age [sixty-five].”); see also Tr. 897, 901 (Barry). However, Mr. England noted that for purposes of calculating the liability for the segment-closing calculation, Mercer assumed that every terminated-vested participant would retire immediately, regardless of whether they had reached age sixty-five, so *280long as they were eligible at the time of the segment closing. See DX 241.0006, .0030; DX 161.0030-.0031; Tr. 1908-09 (England) (“Now, much has been said by Mr. Winer, and by Mr. Vernon, about the fact that actuarial valuation assumptions assume that people, when they terminate, if they are eligible to retire, will do so. And there is truth to that, in that part of an actuarial valuation is that you take all of your active participants as of the present, and you project in the future what you expect to have happen.... What happened here is that they changed the valuation date to the segment closing date, and at the segment closing date, they knew when people had terminated.”).
Mr. England testified that in his opinion the effect of the error would be to overstate each of the plan’s liabilities at segment closing, thereby unfairly increasing the segment pension deficit (or decreasing the segment pension surplus). He testified that in his experience not all retirement eligible participants do retire when a business unit is sold; some employees eligible to retire would retire, while othei’s would choose to defer retirement because they would still be employed by the segment’s buyer and would want to avoid any reduction in retirement benefit for retiring early. Tr. 1914-15 (England).
Mr. England testified that he did not have the data necessary to calculate how changing this assumption would affect the segment closing adjustment. Tr. 1916. Mr. England testified that for the Greenville Hourly plan, one of the plans that the court determined was no longer in dispute, see supra note 63, the actual experience of plan participants demonstrated that the one-hundred percent retirement assumption could lead to an increase in plan liability at segment closing. Tr. 1912-13 (England). In the ease of Greenville Hourly, Mr. England testified that plan liability increased by at least 11 percent. Id. In that plan, 362 participants were eligible for immediate retirement at the time of segment closing. DX 161.0032; Tr. 1913 (England). Mr. England testified that he could not know for certain how many retired in that plan in 2002, but the number of retirees in the plan increased by 227 during that year. Tr. 1913; see also DX 161.0032.
In response to Mr. England and in support of Mercer’s calculations, Mr. Vernon reviewed Mercer’s retirement assumption and stated that in his view Mercer’s one-hundred percent retirement assumption was reasonable because the segment closing resulted in a change in the circumstances of the plan participants. Tr. 1671-73; Tr. 1748 (Vernon). Mr. Vernon testified that in his experience, when a government contractor sells a segment, most of the employees who are retirement-eligible do elect to begin collecting pension benefits, even if they accept employment from the successor contractor. Tr. 1676 (Vernon). Mr. Vernon agreed that in preparing the actuarial valuation reports for the various pension plans of Raytheon in this period, Mercer never assumed that one-hundred percent of the retirement eligible participants would retire as soon as they became eligible. Tr. 1747 (Vernon). However, Mr. Vernon distinguished between active participants and participants that are no longer active at the time of the segment closing, because at that point they would no longer be working for Raytheon. Tr. 1748-49 (Vernon) (“We’re saying that we know the termination date, so this is not a change in assumption, retirement age assumption. It’s a change— we know the termination date, so now they become inactive employees.”). Mr. Vernon testified that this difference in factual circumstances justified the difference between the assumption used in the segment closing calculation and the ongoing valuation assumptions. Tr. 1672 (Vernon). In Mr. Vernon’s view, the knowledge of the termination date, rather than prior assumptions about possible termination dates, should determine whether Raytheon should assume that a participant would defer benefit commencement or elect benefit commencement immediately at the time of segment closing. Tr. 1672 (Vernon). Mr. Vernon agreed with Mr. England that actual information regarding those participants who did retire at segment closing would produce a more accurate picture than a projection that one-hundred percent of those who were eligible to retire would retire on the day of segment closing. Tr. 1752-53 (Vernon). However, like Mr. Eng*281land, Mr. Vernon never investigated the specific facts, Tr. 1752 (Vernon), and also like Mr. England, Mr. Vernon did not know whether Mercer’s reliance on the one-hundred percent retirement assumption for the subject plan had any material impact on the segment’s deficit. Tr. 1746 (Vernon).
The court again notes that Raytheon is required by CAS 413-50(c)(12)(i) to perform its segment closing adjustment with assumptions consistent with its on-going CAS 412 assumptions, unless the contractor revises its actuarial assumptions based on “persuasive actuarial experience.” Here Raytheon asserts that actual data in the form of the age and eligibility of each plan participant on the date of segment closing together with expert actuarial opinion regarding retirement decisions justifies the “one-hundred percent retirement assumption” used for all terminated-pension eligible participants, regardless of whether they have reached age sixty-five. Raytheon contends that given these facts, its decision to change assumptions was reasonable and did not violate the provisions of the CAS.
The court agrees with Raytheon. Raytheon was able to support the change in its retirement assumption with evidence to show the number of pension eligible employees and with expert opinion to the effect that employees eligible to collect a retirement will ordinarily do so when a segment is closed. Without evidence to show that this change in assumption was factually incorrect or that correcting this assumption would make any material difference in the deficit owed to Raytheon, the court finds that Raytheon’s retirement assumption in its AIS segment closing adjustment is supported and will not be set aside.
d. Raytheon’s phase-in of plan benefits
At trial the court also heard testimony challenging Raytheon’s segment closing adjustment for AIS on the grounds that Ray-theon incorrectly phased-in recent benefit improvements under CAS 413-50(c)(12)(iv) (“Pension plan improvements adopted within 60 months of the date of the event which increase the actuarial accrued liability shall be recognized on a prorata basis using the number of months the date of adoption preceded the event date.”). With respect to the phase-in of benefit improvements for the RTIS plan, Mr. England testified that Ray-theon’s calculations failed to comply with CAS 413-50(c)(12)(iv) because Raytheon prorated the benefits by years rather than by months. Tr. 1926-27 (England); DX 241.0065. Mr. England explained that this alleged mistake was slightly favorable to the government because it resulted in a reduction of plan liability in the segment closing adjustment calculation. Tr. 1927 (England) (“It is not a big error, and Mr. Vernon is correct that the error favors the government-”). Mr. England explained that the error amounted to a $2,903 reduction in liability for the AIS segment. DX 161.0035-.0036. Mr. England also believed that Ray-theon erred in prorating the amount of the increased liability from the time the benefit improvement was adopted in 1998, rather than at the time of the segment closing date in 2002. Id. Mr. England explained that this alleged mistake resulted in altering the AIS segment closing calculation for the RTIS plan by $773. DX 161.0036. Tr. 1957 (England) (“about $700”).
Mr. Vernon testified that he agreed with Mr. England that there was an error in the phase-in of liabilities for the benefits improvements of the RTIS plan and that they should have been prorated by months rather than years. Tr. 1611. Mr. Vernon also agreed that the error worked to the benefit of the government. Id. However, because the adjustment for the segment calculation was “insignificant” Mr. Vernon “[saw] no need to adjust our segment closing calculations.” PX 428.0052. In addition, with respect to Mr. England’s contention that Ray-theon calculated the phase-in as of January 1, 1998, resulting in a $773 error in Raytheon’s favor, Mr. Vernon testified that he believed Mr. England was mistaken in his assessment of the calculation made by Mercer:
There’s a second objection that Mr. England has where he’s saying that we or Mercer did the phase-in using present value of benefits as of January 1,1998 instead of reflecting the value of the benefit as written as a segment closing date, and he’s *282just simply wrong in that regard. We did reflect the — we, Mercer — and Mercer reflected the value of the benefit improvement as of the se[gment] closing date.
Tr. 1611-12 (Vernon); Tr. 1688 (Vernon) (“We took the value of the benefit improvement as of the segment closing date, and that was what we applied the phase in to.”).
Based upon the evidence and testimony presented it is undisputed that there was an error in the phase-in of benefits by Ray-theon and that error favored the government. Accordingly, the court finds that Ray-theon’s AIS segment closing calculation must be corrected to reflect a $2,903 increase in the RTIS plan deficit in order to comply with CAS 413-50(c)(12)(iv). The court further finds Mr. Vernon’s testimony persuasive that Mr. England was mistaken in his finding that Raytheon did not reflect the benefit improvement as of the segment closing date. Therefore, the court finds that Raytheon’s calculations do not require correction in the amount of $773.
e. Raytheon’s alleged use of out-of-date benefit payment data for the Salaried plan
Mr. England’s final objection to Ray-theon’s calculation of AIS pension assets and liabilities related to his concern that Ray-theon used outdated data as of the segment closing date in calculating the liabilities for the Salaried plan. At trial Mr. England testified that Raytheon’s error resulted in “a small increase in the segment closing surplus” for the Salaried plan in the AIS segment. DX 241.0066. Mr. England testified that he understood that the government’s share of the Salaried Plan deficit is zero. Tr. 2256 (England). Therefore, correcting for this error would have no effect on the monetary claim in this case. Because this error does not have any impact on the segment closing amounts owed by the government to Raytheon for the AIS segment closing, there is no reason to address the issue.
4. Raytheon’s government share calculations comply with CAS 413
The court now turns to its findings and conclusions regarding the government share calculations. The government’s share of the “adjustment amount” must be determined in accordance with CAS 413-50(e)(12)(vi), which states:
The Government’s share of the adjustment amount determined for a segment shall be the product of the adjustment amount and a fraction. The adjustment amount shall be reduced for any excise tax imposed upon assets withdrawn from the funding agency of a qualified pension plan. The numerator of such fraction shall be the sum of the pension plan costs allocated to all contracts and subcontracts (including Foreign Military Sales) subject to this Standard during a period of years representative of the Government’s participation in the pension plan. The denominator of such fraction shall be the total pension costs assigned to cost accounting periods during those same years. This amount shall represent an adjustment of contract prices or cost allowance as appropriate. The adjustment may be recognized by modifying a single contract, several but not all contracts, or all contracts, or by use of any other suitable technique.
Id.
It is undisputed that the government participation percentage for the Raytheon Salaried plan is zero. See supra note 64. For each of the other four plans in the AIS segment, Raytheon submitted a calculation of the government’s share of the segment closing adjustment amount using sales as a proxy for pension costs allocated to CAS-covered contracts and subcontracts. See Tr. 48, 241-42 (Murphy); PX 19. As discussed above, Raytheon utilized this same method to determine the government’s share in connection with the segment closings that resulted in a pension surplus, and paid the government amounts based on this methodology. Despite settling surplus segments on the basis of sales data, the government contracting officer denied Raytheon’s certified claim for the government’s participation in the AIS CAS 413-50(c)(12) segment closing adjustment. PX 20. He noted that a possible basis for denying Raytheon’s claim was that “the Government sees nothing in CAS 413-60(c)(9) that allows the use of CAS-eovered *283sales as a proxy for pension plan costs in determining the amount of the Government’s share.” Id.
At trial, the government presented testimony to show that Raytheon failed to comply with CAS 413 by utilizing sales data rather than actual pension cost data when it prepared its government share calculation. The government also presented evidence to show that Raytheon had failed to account for the segment’s pension deficit attributable to pension costs allocated to firm-fixed-price contracts prior to the 1995 CAS amendments or for the portion of the deficit attributable to pre-CAS contracts. The government contends, as a matter of law, that Raytheon must provide it with an equitable adjustment to account for the portion of the deficit attributable to pre-1995 CAS fixed price contracts and for the portion of the deficit attributable to pre-CAS contracts. The court will address these contentions in turn.
a. Raytheon’s use of sales data versus general and administrative (“G & A”) percentages
Raytheon prepared its government share calculation by following the example provided in CAS 413-60(c)(9). Tr. 48, 241-42 (Murphy). CAS 413-60(c)(9) provides the following illustration:
Contractor L operated a segment over the last five years during which 80% of its work was performed under Government CAS-covered contracts. The Government work was equally divided each year between fixed-price and cost-type con-tracts_ As defined by 9904.413-30(a)(20)(i), a segment closing occurs when Contractor L sells the segment at the end of the fifth year_ The difference between the market value of the assets and the actuarial accrued liability for the segment is $1.3 million ($6.3 million-$5 million). Pursuant to 9904.413-50(c)(12)(vi), the adjustment due the Government for its 80% share of previously-determined pension costs for CAS-covered contracts is $1.04 million (80% times $1.3 million). Because contractor L has no other Government contracts the $1.04 million is a credit due to the Government.
CAS 413-60(c)(9). Raytheon obtained the data for its government share calculation from the DCAA and records maintained by the segment. Raytheon witnesses testified that they did not use actual pension costs contributed by the government to calculate the government’s share because Raytheon did not have the historical records needed to determine the amount of pension costs allocated to CAS-covered contracts and subcontracts. Tr. 46-48, 176-77 (Murphy). Where pension cost data were not available, Ray-theon’s witnesses testified that sales data can serve as a valid proxy for determining the government’s share.
Raytheon presented evidence at trial to support the calculation of the government’s share it submitted in its CDA claim. PX 428 at 23, 53. The evidence presented for the Greenville Salaried and Hourly plans showed that the government’s share is approximately 78 percent, which gives rise to a $56,340,826.21 deficit share. Id. For the RTIS plan, the evidence showed that the government’s share is approximately 84 percent, which gives rise to a $69,101.02 deficit share. Id. For the Richardson/Waco plan, the evidence showed that the government’s share is approximately 77 percent, which gives rise to a $135,555.84 surplus share, set-off against the deficit plans in the segment. Id. Raytheon claims that the total government’s share of the pension deficit attributable to the AIS segment is $56,274,371.39. Id.
At trial, the government took issue with Raytheon’s use of sales percentages as a proxy for pension cost contributions in determining the government’s share of the AIS pension deficit. The government presented the testimony of Ms. Lynn Robbins, an auditor with the DCAA. She testified that she had undertaken an investigation of Ray-theon’s government share calculation using the criteria established in the DCMA/DCAA Joint Guidance. Tr. 1430. In her investigation, Ms. Robbins testified that she used G & A percentages (the general and administrative pool of expenses), where available, as a proxy to calculate the government’s share based on her assumption that pension costs “go through G & A.” Tr. 1539-42, 1547. Ms. Robbins explained that she understood that *284Raytheon allocated pension costs through a fringe benefit rate, but that the fringe benefit allocation eventually went through the G & A allocation base. Tr. 1539. Based on her investigation, the government determined that Raytheon had allocated more of the deficit to the government using its sales approach than would be allocated using the G & A approach, resulting in a total government share of the AIS pension deficit of $47,245,055. See supra Part III.A.1; Tr. 1445-92 (Robbins); DX 111; DX 112; DX 130; DX 178; DX 178A.
In response to Ms. Robbins’s testimony regarding the use of G & A percentages to calculate the government’s share of pension costs, Raytheon presented the testimony of Mr. John Panetta, Raytheon’s Director of Government Accounting. He stated based upon his experience at Raytheon that Ray-theon did not allocate pension costs through the G & A rate. Tr. 2311 (Panetta). He explained, using the CAS Disclosure Statement for the former E-Systems sites at Greenville and Waco as an example, PX 358, that pension costs at Raytheon are allocated through the fringe benefit rate, not through the G & A rate. Tr. 2313-18 (Panetta). Mr. Panetta testified on cross-examination that he had not done any calculations using the “fringe rate” and did not know whether using the “fringe rate” would make a difference in Ms. Robbins’s calculations. Tr. 2340.
In reviewing Raytheon’s CAS 413 government share calculations, as when reviewing Raytheon’s CAS 413 segment closing adjustment calculations, the court reviews Ray-theon’s calculations for compliance with the CAS and for reasonableness where the CAS and the CAS Board are silent. As with the other calculations mandated by the CAS, where perfect information is lacking, use of reasonable estimates and assumptions may be allowed.84 See CAS 413-60(c)(9). It is the government’s burden to demonstrate the unreasonableness of Raytheon’s calculations. See supra Part III.A.2.
The court finds, given the absence of pension cost data for CAS-covered contracts, that Raytheon reasonably relied upon sales data as a proxy for pension costs to produce its government share calculations pursuant to CAS 413-50(c)(vi). The illustration set forth in CAS 413-60(c)(9), contrary to the government’s contentions, plainly endorses the use of sales data to determine the government’s share. The illustration identifies the government’s share based on the percentage of government work performed, stating, “80% of its work was performed under Government CAS-covered contracts.... Pursuant to 9904.413-50(c)(12)(vi), the adjustment due the Government for its 80% of previously-determined pension costs for CAS-covered contracts is ... 80% times [the segment closing adjustment amount].” CAS 413-60(c)(9). In contrast to Raytheon’s approach, which is identified in the CAS 413-60(c)(9) illustration, the approach used by Ms. Robbins is based on a simple application of G & A rates as a proxy for the government’s share and is not supported by any express reference in the CAS. In addition, the approach used by Ms. Robbins is different from the approach the government previously accepted when it settled the surplus segment closings with Raytheon.85 Tr. 48 (Murphy). Indeed, Ms. Robbins agreed that when other information is not available sales data may be used as a surrogate for cost data, and that the government has relied upon sales data where cost data were not available. Tr. 1547 (Robbins).
*285As discussed previously, Raytheon obtained the historical sales mix data from records maintained by the DCAA and the AIS segment. See Tr. 64, 85, 93-95, 102-03, 111, 117, 177 (Murphy). The evidence established that Raytheon used sales data as a proxy for cost data because it did not have the historical records needed to determine the amount of pension costs allocated to CAS-covered contracts and subcontracts. Tr. 46-48, 177 (Murphy). The evidence further established that Raytheon made all reasonable efforts to obtain the information from the purchaser of the segment and the DCAA
In these circumstances, Raytheon reasonably followed the advice provided in CAS illustration 413-60(e)(9) to determine the government’s share. Put another way, the court finds that it was reasonable for Raytheon to utilize sales data as a proxy for pension cost data when performing its CAS 413 government share calculations, where a reasonable search for historical data was performed, and actual pension cost data could not be located. The court further finds that the government’s reliance on the investigation by Ms. Robbins is misplaced. The investigation relied on assumptions that were not correct and therefore does not provide any basis for second-guessing Raytheon’s government share calculation.
b. The court lacks jurisdiction over the government’s equitable adjustment claim
The government contends that Raytheon’s government share calculation must be recalculated because Raytheon failed in its segment closing adjustment to account for pension costs that were paid before the segment closing provisions were added to the CAS in 1978 and for pension costs that were paid in connection with fixed price contracts between 1978 and 1995, before the CAS was amended in 1995. The government argues that it is entitled to an equitable adjustment removing these amounts from any amounts owed to Raytheon in connection with the AIS segment closing.
The court in Teledyne concluded, “the portion of the CAS 413 segment closing adjustment that is attributable to government contributions under firm-fixed-price contracts is not recoverable absent an express contract provision providing for that recovery.” Teledyne, 50 Fed.Cl. at 178, aff'd, Allegheny Teledyne. The court also held that the portion of the surplus or deficit that was attributable to pre-CAS 413 contracts “must be excluded from the portion of the CAS 413 segment closing adjustment that is subject to recov-ery_” Id. at 183. The Federal Circuit affirmed. Allegheny Teledyne, 316 F.3d at 1375-80 (exclusion of firm-fixed-price contracts), 1383-84 (exclusion of pre-CAS 413 contracts). In Viacom, the court also held that the government is entitled to an equitable adjustment to the extent that application of the 1995 CAS 413 amendments results in the government owing more under the amended CAS than it would have owed under the original CAS. 70 Fed.Cl. at 663.
Based upon the clear line of precedent in this court and in the Federal Circuit, the court ruled in Raytheon II that the government is entitled to an equitable adjustment of any part of a segment’s deficit that is attributable to pension costs allocated to firm-fixed-price contracts that were subject to the original CAS 413. Raytheon II, 96 Fed.Cl. at 554-55.
The government presented evidence at trial, through the testimony of Ms. Robbins, to show that Raytheon had prepared its segment closing adjustment without removing from the government share the portion of the Raytheon deficit attributable to the amounts subject to an equitable adjustment. Ms. Robbins testified that under the DCMA/ DCAA Joint Guidance, the equitable adjustment should be included as part of the CAS 413 government share calculation.86
*286Raytheon does not dispute that it did not incorporate the government’s claimed equitable adjustment in its segment closing adjustment. It argues, however, that as a matter of law the equitable adjustment is not part of the segment closing adjustment, but is instead a contract change subject to the claim requirements of the CDA. Under FAR 52.230-2, a contractor or the government is entitled to “an equitable adjustment ... if the Contractor is required to make [a change] to the Contractor’s established accounting practices.” Because including pre-CAS contracts and fixed price contracts before 1995 in the segment closing mix represents a change from past contract accounting practice, an equitable adjustment is available to either the contractor or the government to the extent the amended CAS 413 results in the government or contractor owing more under the amended CAS than it would have owed under the original CAS. See Viacom, 70 Fed.Cl. at 663; Raytheon II, 96 Fed.Cl. at 554. Raytheon argues that the equitable adjustment must take the form of a CDA claim because the equitable adjustment under FAR 52.230-2 is distinct from the segment closing adjustment required under CAS 413-50(c)(12). As this court stated in Viacom:
The court notes that the equitable adjustment that is triggered under 48 C.F.R. § 52.230-2(a)(4)(i) when there is a government-mandated accounting change is different from the adjustment that takes place in a CAS 413 segment closing. The equitable adjustment under 48 C.F.R. § 52.230-2(a)(4)(i) is triggered by the adjustment that takes place in a CAS 413 segment closing to the extent that the CAS 413 adjustment involves contracts that predate the revised CAS 413 and that would not otherwise have been involved under the original CAS 413. On the other hand, the adjustment that takes place in a CAS 413 segment closing is defined by the terms of revised CAS 413.
70 Fed.Cl. at 662 n. 17.
Given the nature of the government’s claim, Raytheon next argues that the government is not entitled to an equitable adjustment in this ease because it failed to make a claim against Raytheon or receive a decision from the contracting officer and thus failed to comply with the requirements of the CDA. In such circumstances, Raytheon argues, this court lacks jurisdiction to award the equitable adjustment to the government.87 Specifically, Raytheon argues that because a prerequisite to an equitable adjustment under the CAS clause at FAR 52.230-2 is a government CDA claim, and because the government never issued a contracting officer’s final decision asserting an equitable adjustment, the court lacks jurisdiction to award the government an equitable adjustment.
The court agrees with Raytheon and therefore, despite its earlier ruling, must conclude that it does not have jurisdiction over the government’s equitable adjustment claim. First, as explained in Viacom, an equitable adjustment is distinct from a segment closing adjustment and, contrary to the government’s contentions, does not have a place in the segment closing adjustment calculation. Second, because the equitable adjustment is a matter of contract, compliance with the regulations governing contract claims is essential. A government claim for an equitable adjustment under FAR 52.230-2 is subject to the CDA See Applied Cos. v. United States, 144 F.3d 1470, 1477-78 (Fed.Cir.1998) (“The comprehensive procedures of the [CDA] govern the resolution of contract *287disputes that arise between the government and contractors.”); Cecile Indus., Inc. v. Cheney, 995 F.2d 1052, 1055 (Fed.Cir.1993) (“The CDA exclusively governs Government contracts and Government contract disputes.”). Under the CDA, “[a]ll claims by the government against a contractor relating to a contract shall be the subject of a decision by the contracting officer.” 41 U.S.C. § 605(a);88 see also Joseph Morton Co. v. United States, 757 F.2d 1273, 1279 (Fed.Cir.1985) (“[I]f the CDA applies, the Government’s counterclaims against [the contractor] must be subject to a decision by a [contracting officer] before the Government can assert them in the Claims Court”). Accordingly, the court finds that because the government failed to obtain a final decision by the contracting officer with regard to its equitable adjustment claim, this court does not have jurisdiction over that claim.89 Thus, no alteration of Raytheon’s AIS segment closing adjustment is required to address the government’s claim for an equitable adjustment.
5. The government’s share of the AIS segment closing adjustment pension deficit is $56,276,815.61
For the foregoing reasons, based on its findings of fact and conclusions of law, the court holds that Raytheon’s AIS segment closing adjustment (altered to reflect a $2,903 increase in the RTIS plan deficit, see supra Part III.A.3.d.) is as follows:
A. Government B. Government C. Government D. Surplus/ Total Government Participation Participation Share Percentage (Deficit) Share Surplus/ Numerator Denominator (A/B) Amount (Deficit) (C x D)
Greenville Salaried/ $135,828,017.00 $172,249,066.00 $78.8555898469% ($71,448,107.00) ($56,340,826.21) Hourly
Richardson/Waco $ 8,546,760.00 $ 11,125,883.00 76.8187118272% $176,462.00_$135,555.84
RTIS_$ 64,961,674.00 $ 77,154,720.00 84.1966298368% ($84,974.00) 90 ($71,545.24)
Raytheon Salaried_N/A_N/A_0.000%$3,097,023$0,00
AIS — Total ($56,276,815.61)
B. Optical segment closing calculations
1. Optical findings of fact
Raytheon sold its Optical segment on March 1,2001 to B.F. Goodrich. PX 78.0002. As discussed above, by the terms of the asset purchase agreement between Raytheon and B.F. Goodrich, Raytheon retained the pension plan assets and actuarial accrued liabilities for Optical. PX 230.0048. There is no dispute that under CAS 413-30(a)(20) the March 1, 2001 sale resulted in a “segment closing” requiring Raytheon to perform CAS 413-50(c)(12) segment closing calculations for the Optical segment’s defined benefit pension plan. The Raytheon Nonbargaining Retirement Plan for former Hughes Aircraft employees (“Nonbargaining plan”) was the only Raytheon defined benefit pension plan covering Optical segment employees. In accordance with the CAS 413-50(c)(12) segment closing provision, Raytheon prepared a segment closing calculation to determine the difference between the market value of the pension assets and the actuarial accrued pension liability for the Optical segment. The Nonbargaining plan covers employees in many different Raytheon segments and was historically accounted for on a composite ba*288sis under CAS 413-40(c) and 413-50(c)(1). Tr. 782 (Winer). As a result, Raytheon needed to allocate plan assets to the Optical segment under CAS 413-50(c)(5) as required by CAS 413-50(c)(12)(ii). In addition, under CAS 413-50(c)(12)(vi) Raytheon was charged with calculating the government’s share of any surplus or deficit amount determined for the Optical segment.
The basic facts of the origin and history of the Optical segment and Nonbargaining plan were not disputed at trial. Optical was established as a segment in 1990, when Hughes Aircraft Company (“Hughes”) acquired the Electro-Optics Technology Division of the PerkinElmer Corporation. PX 16.0542; Tr. 679 (Winer). When the segment was established by Hughes, its participants were covered by the Hughes Nonbargaining Retirement Plan (“Hughes Nonbargaining plan”). Id.
Prior to November 30, 1991, the Hughes Nonbargaining plan required employee contributions, in addition to employer contributions, in return for a more generous benefit package. PX 16.0541-42; Tr. 1624-25 (Vernon). In 1991, the pension benefit formula was changed to make the plan funded through employer contributions only (called a “noncontributory” plan) for employees hired on or after December 1, 1991. These post-1991 employees were entitled to a less generous benefit than those who had been making contributions. PX 16.0542; Tr. 679-81 (Winer). When Hughes acquired Perki-nElmer, the PerkinElmer employees were also covered under the Hughes Nonbargain-ing plan as noncontributory participants. Tr. 679-81 (Winer). After the entire Hughes Nonbargaining plan became noncontributory, contributory participants were allowed to continue to make contributions as before and receive benefits under the more generous contributory formula, or they were given the option to stop contributing and receive benefits under the noncontributory formula. Tr. 679-80 (Winer).
On December 17, 1997, Raytheon and Hughes merged. PX 134.0048; Tr. 1087 (Harris); Tr. 1625 (Vernon). The Raytheon Nonbargaining plan at issue was established using the assets and liabilities from the Hughes Nonbargaining plan that Raytheon acquired as part of the merger. DX 8.0005; PX 134.0048; Tr. 1625-26 (Vernon). According to Mercer, as of December 1, 1999, there were a total of 582 active participants in the Optical segment, 19 contributory participants and 563 noncontributory participants. DX 29.0002. From the time the segment was created until the date of segment closing, the only known employer contribution (by Hughes or Raytheon) made to the Nonbar-gaining plan was made by Hughes in the plan year beginning December 1, 1991. In that plan year, Hughes paid a total of $55,172,000 to the Hughes Nonbargaining plan (“the $55,172,000 contribution”). The Nonbargain-ing plan was fully- or over-funded at that time and remained fully- or over-funded at the time of segment closing. Tr. 1627 (Non-bargaining plan was “fully-funded”), 1628 (“over-funded”), 1633 (“fully-funded”); PX 18.0011 (“over[-]funded”).91 As a consequence, Raytheon never made any payments into the Raytheon Nonbargaining plan. Tr. 1628 (Vernon) (“[D]uring that period that Raytheon owned it up until the segment closing date, [Raytheon] did not make any contributions because the plan was over-funded.”).
On March 1, 2001, Raytheon sold Optical to B.F. Goodrich. PX 78.0002. On April 18, 2001, the DCMA and the DCAA cited Ray-theon for initial CAS 413 noncompliance for its failure to prepare a segment closing calculation for Optical. PX 257.0003; Tr. 39 (Murphy).
On October 9, 2001, Raytheon submitted its segment closing calculations for the Optical segment to the government. PX 78. The calculations prepared by Mercer included both a “recommended” adjustment and an “alternative” adjustment. The “recommended” adjustment identified a pension deficit. The “alternative” adjustment identified a pension surplus. The “recommended” calculations showed a segment closing ad*289justment with a pension deficit for the Optical segment in the amount of $9,558,952. Mercer’s “alternative” calculation showed a segment closing adjustment with a pension surplus of $11,438,570. PX 78.0004-.0005. Mercer candidly recognized in its submission to the government that the significant difference in outcomes turned on how CAS 413-50(c)(5) was applied. In Mercer’s words at the time, “[y]ou can see that there is quite a difference between the two methods.” PX 78.0005. The differences were not attributable to any employee contributions. Mercer did not include employee contributions in its calculations. Tr. 810-11, 813 (Winer); see also PX 78.0003 (Mercer calculated that on March 1, 2001 “the employer provided portion of the Market Value of Plan Assets ... is $3,315,927,558.”). Rather, Mr. Winer of Mercer explained that the difference in the calculations was attributable to the different methodologies identified in CAS 413-50(c)(5)(i) and (ii).92
More specifically, the primary reason for the difference between Mercer’s two calculations stemmed from Mercer’s treatment of the noneontributory participants in its (e)(5)(i) calculation as compared to its (c)(5)(ii) calculation. PX 78.0003. In the “recommended” calculation, Mercer divided the Optical segment into three employee groups and separately calculated the pension plan assets allocable to each group: (1) legacy contributory participants; (2) PerkinEl-mer noneontributory participants who joined the plan on January 1, 1990; and (3) other noneontributory participants who joined the plan after January 1, 1991. PX 78.0002-.0004; Tr. 278 (Garvey).
Mercer determined the pension assets attributable to the contributory plan participants by applying the ratio of pension liabilities attributable to the contributory plan participants who had last worked at the Optical segment compared to all of the contributory participants in the Nonbargaining plan.93 This is the method identified in (c)(5)(ii). However, with regard to the noncontributory plan participants (those participants that joined the plan after 1990), Mercer stated that it used the approach set forth in (c)(5)(i). Tr. 809, 811 (Winer). Mercer based its calculation for the noneontributory participants on the assumption that the Hughes’ contribution made to the Nonbar-gaining plan was for the benefit of the non-eontributory participants only, and relying on that assumption, Mercer determined the percentage of the $55,172,000 contribution that could be attributed to the Optical segment. PX 78.0003.
By separating out the contributory and noneontributory groups in the calculation, Mercer allocated none of the pension asset surplus that existed before the plan became *290noneontributory (prior to 1990, when both employees and the employer contributed to the plan) for the pensions of the post-1990 noncontributory group. The $55,172,000 contribution alone would not be enough to pay the pensions for the noncontributory employees in the Nonbargaining plan, and it was for this reason that the “recommended” calculation gave rise to a pension deficit attributable to this group.
Mercer’s “alternative” calculation, which gave rise to a pension surplus, was based on Mercer’s use of the CAS 413-50(c)(5)(ii) method for determining pension assets allo-cable to the Optical segment. Under the “alternative” calculation, Mercer treated the Optical segment as a single segment, treated the $55,172,000 contribution as a contribution to the Nonbargaining plan as a whole (as opposed to a contribution for the non-contributory participants only), and did not separate out the contributory and noncontributory plan participants from each other. In other words, the entire segment and was treated as single unit. Under this method, the Nonbar-gaining plan surplus was applied across the board to both the contributory and noncontributory plan participants. See PX 78.0004-.0005; Tr. 811 (Winer). As a result, the calculation showed a pension surplus in the segment closing adjustment.
As with its AIS segment closing adjustment, Raytheon did not include a government share calculation in its initial government submission. See generally PX 78. Raytheon then worked with the buyer (B.F. Goodrich) and the DCAA to prepare “a reasonable determination of the government participation.” Tr. 282-84 (Garvey); Tr. 374-75 (Cann); PX 79. On March 7, 2002, Raytheon submitted a revised segment closing calculation to the DCMA, which included a calculation attributing 85.6 percent of the segment closing adjustment to the government based on the information Raytheon received from B.F. Goodrich. PX 83; Tr. 283-84 (Garvey); Tr. 624 (Sheley). As with all of Raytheon’s government share calculations, its calculation of the government’s share for the Optical segment used sales data as a proxy for pension cost data. Tr. 624 (She-ley).
The Optical segment closing adjustment was reviewed by the DCMA CIPR Center and the DCAA. See PX 371; PX 372; Tr. 1178-79 (Dowd); PX 79. The DCMA CIPR Center reviewed Raytheon’s segment closing adjustment calculation and the DCAA reviewed Raytheon’s government share calculation.
On June 18, 2002, the DCMA CIPR Center issued its report on the Optical segment closing adjustment calculation. PX 108. The CIPR Center report noted that the Raytheon proposal had two methodologies for calculating the CAS 413 adjustment amount. Id. at .0002. However, the report did not describe in any detail Mercer’s alternative calculation or the pension surplus calculated by Mercer using the (c)(5)(ii) calculation. Id. The CIPR Center report recommended that the contracting officer “[ajeeept [Raytheon’s] CAS 413 adjustment amount of [a deficit of] $9,558,952 as reasonable” and approved Ray-theon’s recommended methodology and actuarial assumptions, stating:
1 METHODOLOGY
Raytheon used a methodology whereby three distinct groups were created from contributory, noncontributory and former Perkin Elmer employees. The asset allocation method, which recognizes employer contributions, is acceptable. However, there was no actual share ratio presentation or proposal. DCAA will need to determine the appropriate share ratio. The 80% used in the Mercer calculations were for illustrative purposes only.
2 ASSUMPTIONS
Assumptions are consistent with current Actuarial valuations. The 8% per year is considered a reasonable long-term estimate of annual return on assets.
3 SHARE PERCENTAGE
DCAA would need to determine or verify the correct share percentage^]
Id.
In an August 14, 2002 audit report, the DCAA did not “take exception” to Ray-theon’s government share calculation for the Optical segment of 85.6 percent. PX 269; PX 110.0002. Nor did the DCAA take exception to the Optical segment closing adjustment deficit amount for pension costs in the *291amount of $9,558,952. Id.94 Applying the government participation percentage against the pension deficit amount, the DCAA “determined the Government’s share of the pension adjustment to be ($8,181,787).” Id. Though the DCMA, the DCAA, and Ray-theon initially agreed on the Optical segment closing adjustment calculation, they did not settle the adjustment because “[t]he parties still had a concern with the outcome of the Teledyne decision, so this was just put on hold for the moment waiting for that decision.” Tr. 125-26 (Murphy).
During the following year, the government contracting officers and Raytheon discussed settling Raytheon’s Optical CAS 413 claim by partially offsetting the Optical segment deficit amount against surpluses Raytheon owed the government in connection with the “surplus” segment closings. PX 269; PX 331; PX 332; PX 389.0004; PX 393.0003; Tr. 1190, 1201 (Dowd); Tr. 1344-45, 1353-54 (McGrath); Tr. 127 (Murphy).
On August 11, 2003, following the Federal Circuit’s ruling in Allegheny Teledyne, Ray-theon submitted a revised calculation of the government’s share for the Optical segment closing based on additional information received from B.F. Goodrich. PX 314. In this calculation, Raytheon stated that it excluded firm-fixed-priee contracts, see id. at .0002, “understanding that that was one way to look at the government’s share calculation,” in “an attempt to come to a negotiating position with the government because at the time [they] were in a state of working together to try to settle out the surpluses and deficits,” Tr. 468-69 (Tully). Raytheon utilized sales data from the years 1990 through 1994, broken down by cost-type and fixed-type contracts, to determine the government’s participation percentage in cost-type contracts of 63.90 percent. PX 314. This, Raytheon asserted, would result in the government owing $6,107,666 of the segment closing adjustment pension deficit calculated by Mercer. PX 314. Following Raytheon’s revised submission, the parties engaged in another year of review and discussions. See PX 334; PX 408.0003; PX 410.0003; PX 412.0004.
As previously stated, in July 2004, the DCMA and the DCAA issued the DCMA/ DCAA Joint Guidance for implementing the Federal Circuit’s ruling in Allegheny Teledyne. See supra note 21. In August 2004, the government issued letters to Raytheon seeking payment on two surplus segments, RE & C and Montek, and on September 21, 2004, Raytheon issued payment to the government to settle the surplus segment closures. See supra note 59. On September 30, 2004, the contracting officer denied Ray-theon’s request for the government to fund its share of the Optical CAS 413 segment closing deficit. PX 298. The reason cited by the contracting officer for disallowing the pension costs was a failure on the part of Raytheon to fund the Optical pension costs by the federal tax deadline for the year of the segment closing. Id.
By letter dated November 8, 2004, Ray-theon submitted a certified claim for the government’s share of the Optical segment closing adjustment. PX 25. In its certified claim, Raytheon asserted a government participation percentage of 96.89 percent based upon total government participation in all cost- and fixed-type contracts for the year 1991, when Hughes owned the Optical segment and an employer contribution was identified as having been made to the Non-bargaining plan. Id. The government contracting officer denied Raytheon’s certified claim in its entirety by a contracting officer’s final written decision dated February 1, 2005. PX 26. The reason stated by the contracting officer for denying Raytheon’s certified claim was Raytheon’s failure to fund the pension costs in the current tax year pursuant to FAR 31.205-6(j)(1)(i) and (j)(2)(i)(A). Id. at .0002.95
At trial, Raytheon supported its segment closing adjustment claim for Optical through its expert, Mr. Vernon. Mr. Vernon’s final *292calculations for the Nonbargaining plan and the Optical segment were slightly different from Mercer’s calculations and are set forth on the chart below:
Pension Plan Surplus/(Deficit)
Raytheon Nonbargain-ing($8,972,581)
Total Optical Segment Closing Adjustment($8,972,581)
PX 428.0035, .0054; see also PX 18.0003. With regard to the government share of the Optical segment closing deficit, Raytheon presented evidence to show the following totals:
A. Government B. Government C. Government D. Surplus/ Total Government Participation Participation Share Percentage (Deficit) Share Surplus/ Numerator Denominator (A/B) Amount (Deficit) (C x D) Nonbargaining $53,456,151.00 $55,172,000.00 96.8900003625% ($8,972,581.00) ($8,693,533.76)
Optical — Total ($8,693,533.76)
PX 428.0035, .0054; see also PX 25.
The government challenged Raytheon’s segment closing adjustment for the Optical segment with testimony from its expert, Mr. England. Mr. England challenged the data and assumptions used by Raytheon to calculate pension assets and liabilities. He testified that in his opinion Raytheon’s Optical segment closing adjustment should reflect a surplus of $20,431,049, as set forth on the chart below:
Pension Plan Surplus/(Deficit)
Raytheon Nonbargaining $20,431,049
Total Optical Segment Closing Adjustment$20,431,049
DX 241.0005; Tr. 1973, 2013, 2024-2026 (England). In brief, Mr. England testified that Raytheon erroneously relied on the (c)(5)(i) method because Raytheon did not have “readily determinable” data to support its asset allocation for the entire segment and thus Raytheon should have used the (c)(5)(ii) method to determine the pension assets attributable to the Optical segment. Tr. 1990-2002 (England). He also testified that Raytheon, in its calculations, erred by failing to include more than five inactive participants attributable to the Optical segment. Tr. 1973-90 (England). Finally, he testified that Raytheon erred in excluding the surplus attributable to employee contributions from the pension asset calculation. Tr. 2004, 2007-12 (England).
The government also challenged Ray-theon’s government share calculations. The government presented testimony and evidence to show that the government’s shai’e of the Optical segment closing surplus is 48.37 percent, or $9,882,498:
Surplus/ Government Share Government Share Plan(l) (Defieit)(2) Percentage® (4) = (2) x(3)
Raytheon Nonbargaining $20,431,049 48.37% $9,882,498
Optical — Total $9,882,498
See Def.’s PosL-Trial Br. 54, 80-84.
The court will first address the parties’ specific disputes with respect to the calculation of assets and liabilities that gives rise to Raytheon’s Optical segment closing adjustment claim. It will then turn to the remaining Optical segment-related issues.
2. Standard of review
In its analysis of Raytheon’s compliance with the CAS, the court will be guided by the same principles it followed in reviewing Ray-theon’s AIS claim. See supra Part III.A.2. First, the court reviews the contracting officer’s decision de novo. Second, the burden of proof is on the government to establish that Raytheon’s segment closing calculation *293violated the CAS. Third, in evaluating Ray-theon’s compliance with the CAS, the court will look to the language of the CAS and any guidance issued by the CAS Board. And finally, to the extent the CAS Board has not offered any specific guidance, the court will consider how various experts, including government agencies, have applied its terms, recognizing that there may be more than one correct approach to a CAS calculation.
3. Raytheon erred as a matter of law in failing to follow CAS 413-50(c)(12)(ii) in allocating pension assets to the Optical segment
Whether Raytheon is entitled to collect on any adjustment of previously determined pension costs in connection with the Optical segment closing turns on whether the segment closing adjustment for the Optical segment involves a pension deficit or pension surplus. The outcome of this question depends on whether Raytheon correctly followed the requirements for asset allocation set forth in CAS 413 — 50(c)(12)(ii), which requires a contractor performing segment closing calculations on a composite plan to follow one of the methodologies prescribed in CAS 413-50(c)(5). In particular, the court must determine whether Raytheon properly applied CAS 413-50(c)(5)(i) when it elected to treat the post>-1990 Nonbargaining plan noncontributory participants differently from the pre-1990 Nonbargaining plan contributory participants.
Raytheon contends that its reliance on (e)(5)(i) was proper because it possessed a data point from which it “readily deter-min[ed]” the “necessary data” required to identify the assets contributed by (and therefore allocable to) the Optical segment to the Nonbargaining plan as a whole. Raytheon supports this contention with Mr. Vernon’s analysis of the Optical segment asset allocation. Mr. Vernon’s allocation of assets to the Optical segment is based on undisputed evidence showing the $55,172,000 contribution to the Nonbargaining plan by Hughes in the plan year beginning December 1, 1991. Mr. Vernon conceded that there were no data available to determine pension contributions from the beginning of the plan in 1951. Tr. 1638 (Vernon). However, Mr. Vernon stated, based on the $55,172,000 contribution, that he was able to determine the pension asset share allocable to the noncontributory plan participants in the Optical segment and the share allocable to the contributory plan participants in the Optical segment. It is not disputed that the Nonbargaining plan is a single plan and uses the same pot of money to pay defined benefits to both noneontribu-tory participants and contributory plan participants; nonetheless, Mr. Vernon assumed for purposes of the segment closing calculation that contributions to the plan should be treated separately. He assumed, as did Mercer, that the $55,172,000 contribution was for the benefit and use of the noncontributory participants alone.96 Mr. Vernon then subtracted this amount (with his additional calculations for the adjustments required under (c)(5)(i)97) from the total assets *294in the Nonbargaining plan and attributed all of the remaining assets in the Nonbargaining plan to the plan’s contributory participants. To determine the assets in the Nonbargain-ing plan allocable to the Optical segment noneontributory plan participants he took a ratio of segment liabilities to plan liabilities for noneontributory participants and multiplied it against the plan assets he had found for noneontributory participants. For the contributory plan participants, Mr. Vernon explained that he also applied a ratio of segment liabilities to plan liabilities for contributory participants and multiplied it against the plan assets he had found for contributory participants (i.e., all plan assets less the amounts he attributed to the noneontributory participants based on the $55,172,000 contribution). Tr. 1778 (Mr. Vernon testified he used “the ratio of the ongoing liabilities for Optical divided by the ongoing liabilities for the total plan.”). Although this method is the same method identified in (e)(5)(ii), Mr. Vernon explained that he did not use (c)(5)(ii), but a ratio of segment liability to plan liability against the plan assets he had found for each class of participants. Tr. 1778-79 (Vernon). Mr. Vernon acknowledged that he was not able to determine the precise earnings, benefit payments, or plan expenses attributable to either the noncontributory or contributory participants who were part of the Optical segment. Tr. 1804-06 (Vernon). He further acknowledged that (c)(5)(i) requires adjustments based on these data. Tr. 1633 (Vernon) (“What we did was say as of the 1992 plan year, that was $55,[172],000. We needed to bring that forward to the segment closing date. What we assumed was that that amount grew at the same rate as the total plan reflecting benefit payments out, investment earnings, expenses, employee contributions going in.”).
Mr. Vernon testified, based on his calculations for both the noneontributory and contributory participants in the Nonbargaining plan, that there was a plan deficit for noncontributory participants and a surplus for the contributory participants. As with Mercer, this result was dictated by his apparent assumption that the $55,172,000 contribution was to pay benefits for noneontributory participants only and that these participants are paid only from that contribution. He also found that the surplus for the contributory participants was due to the historic contributions made by Hughes (and the government) to the plan starting in 1951. In combining these totals, he determined that the assets allocable to the Optical segment from the Nonbargaining plan result in an overall pension deficit of $8,693,533.76 for the Optical segment.
The government contends that Raytheon’s segment closing adjustment, which leads to an overall pension deficit for the Optical segment, does not comport with (c)(5)(i) because the “necessary data” were not “readily determinable for certain prior periods,” and that in such circumstances, Raytheon was required by the CAS to use CAS 413-50(c)(5)(ii) to determine the Optical segment’s share of pension plan assets. The government explains that under (c)(5)(i), the following “necessary data” must be “readily determinable”: the “amount contributed by, or on behalf of, the segment” to the plan at issue, “the income received on such assets,” and “benefits and expenses paid.” See CAS 413 — 50(c)(5)(i). If these data are not readily determinable “for certain prior periods” then (c)(5)(ii) mandates that “the market value of the assets of the pension plan shall be allocated to the segment as of the earliest date such data are available. Such allocation shall be based on the ratio of actuarial accrued liability of the segment to the plan as a whole_” CAS 413-50(c)(5)(ii). The government argues that Raytheon’s asset allocation approach violated the CAS because Ray-theon’s expert admitted that he did not have sufficient data to determine income earned, or benefits and expenses paid for any periods *295or for any plan participants, and therefore he was not able to perform the analysis identified in (c)(5)(i). Indeed, Raytheon’s expert admitted that for the contributory portion of the Nonbargaining plan he relied on the same ratio as identified in (c)(5)(ii) to find the portion of Nonbargaining plan assets attributable to contributory plan participants for the Optical segment. In such circumstances, the government argues, Raytheon was required to follow (c)(5)(ii) for the entire segment. It is of course not disputed that if (c)(5)(ii) is followed for the Optical segment closing adjustment, the calculation gives rise to a pension surplus and not a pension deficit for the Optical segment.98
The court agrees with the government that under the facts of this case, Raytheon did not have “readily determinable” the “necessary data” to employ the methodology in (c)(5)(i), and therefore Raytheon was required to use (c)(5)(ii) in allocating pension assets from the Nonbargaining plan for all participants (both contributory and noncontributory) to the Optical segment. First, even if it is appropriate in other circumstances to divide a single pension plan into parts based upon differences in the beneficiary scheme, the division in this case was not proper. GAS 413-50(c)(5)(i) is the preferred method for attributing pension assets to a segment only where there is sufficient “readily determinable” data available to support reasonable assumptions regarding the segment’s contribution to the pension asset base as a whole. Where, as here, (c)(5)(ii) had to be used because there were not readily determinable data for a large portion of the pension asset calculation, (c)(5)(ii) had to be used for the segment as a whole.
The reasons for rejecting Raytheon’s hybrid approach to CAS 413-50(c)(5) compliance is obvious in this case. To begin, by dividing the Nonbargaining plan between contributory and noncontributory participants, Raytheon ignored the significant pension surplus associated with the plan as a whole and created an artificial $8,972,581 def-ieit in the Optical segment. Next, to the extent Raytheon had data regarding asset contributions (in the form of the $55,172,000 contribution for a single plan year), it made assumptions in relying on that data which were contrary to fact. The evidence established that the Nonbargaining plan was fully-funded in 1991 and that thus there was no deficit created by changing the Nonbargain-ing plan from a contributory to noncontributory plan. In addition, the evidence established that the $55,172,000 contribution went into the plan as a whole and therefore was used to help pay the benefits to both the noncontributory and contributory plan participants. Tr. 1627-28, 1633 (Vernon); PX 18.0011. In such circumstances, dividing the calculation between the two groups was not justified. Finally, once Raytheon recognized that it did not have “readily determinable” data to allocate any pension assets allocable to the contributory participants without resorting to the ratio established in (c)(5)(h), and discovered that the plan had a significant pension surplus, Raytheon could not simply ignore those facts.
Based on the foregoing discussion, the court finds that Raytheon’s segment closing adjustment for Optical does not comport with CAS 413-50(c)(12). Therefore, Ray-theon is not entitled to recover the government’s share of the deficit it calculated for its Optical segment closing claim. More specifically, the court finds that Raytheon’s Optical segment closing adjustment calculation does not comply with the CAS requirements for allocating assets from a single composite pension plan to the Optical segment found in CAS 413 — 50(c)( 12)(ii) and CAS 413-60(c)(5). Raytheon’s calculation artificially divided the Nonbargaining plan’s pension plan assets and impermissibly mixed the (c)(5)(i) and (c)(5)(h) methods. Moreover, it made assumptions in its (c)(5)(i) calculations that were contrary to the facts: Raytheon erroneously assumed that the noncontributory participants are not beneficiaries of the pension surplus in the *296Nonbargaining plan and then incorrectly created a separate and identifiable pension deficit attributable to the noncontributory participants in that plan. Where, as here, the government established that Raytheon relied on assumptions contrary to known facts and where the necessary data were not “readily determinable” for the segment as a whole, the contractor was required to use the (c)(5)(ii) method for the entire calculation. For all of these reasons, Raytheon is not entitled to any recovery in connection with its claim for the Optical segment closing adjustment.
4. The court does not possess jurisdiction to determine and set-off any Optical segment pension surplus claimed by the government for the first time at trial
The court must now address whether it has jurisdiction to proceed further and decide, as asserted by the government for the first time at trial, whether the government is entitled to a set-off of any Optical CAS 413 segment closing adjustment surplus. The government asserts that the court has jurisdiction to enter a judgment determining and setting-off any such surplus against the CAS 413 segment closing deficits owed to Ray-theon, as determined in the other CAS 413 segment closings at issue in this case. The government contends that if the court exercises jurisdiction and makes findings determining the government’s share of any Optical segment pension surplus, the government would then be entitled to either a set-off in this case or to seek compensation in another venue.99 The government contends that the court may simply decide, in the context of ruling on Raytheon’s claim for an Optical pension deficit, to adopt as correct Mr. England’s (c)(5)(ii) calculation, even in the absence of a pending government counterclaim. The government argues that because its common law right to a set-off arises from the same set of operative facts underlying Ray-theon’s Optical CAS claim, this court can exercise its jurisdiction to set-off the amount owed to Raytheon with the Optical surplus.
Raytheon argues that the court does not have jurisdiction to reach the government’s claim for a set-off, because there has been, to date, no final contracting officer’s decision either asserting a government claim for payment or a finding that Raytheon is indebted to the government for any Optical segment closing surplus, as required under the CDA. In addition, Raytheon asserts that the government’s claim, raised at trial more than six years after the Optical segment closing, also fails under the CDA’s statute of limitations.100 Raytheon argues that the government does not have a separate common law right to a set-off where, as here, the government had to first comply with the CDA.
For the reasons that follow, the court agrees with Raytheon, and holds that because the government’s claim for the pension surplus as a set-off is governed by the CDA, and because the government did not comply with the CDA, the court does not have jurisdiction over the government’s claim for a set-off based on the Optical segment closing adjustment surplus.
The “comprehensive procedures” of the CDA govern the resolution of contract disputes that arise between the government and contractors. Applied Cos., 144 F.3d at 1477-78; Cecile Indus., 995 F.2d at 1055. The Federal Circuit has recognized that the government’s common law right to set-off *297may be limited by the government’s compliance with the requirements set in the CDA. See Applied Cos., 144 F.3d at 1477-78; Joseph Morton Co., 757 F.2d at 1281 (holding government was required to raise its CDA counterclaims first through a contracting officer before government could assert them in Claims Court); see also 1-10 Indus. Assocs., LLC v. United States, 528 F.3d 859, 862 (Fed.Cir.2008) (citing Joseph Morton Co., 757 F.2d at 1281); M. Maropakis Carpentry, 609 F.3d at 1331 (holding that the jurisdictional requirements of the CDA apply even when a claim is asserted as a defense).101 In addition, government claims for pension surpluses arising from segment closing adjustments under CAS 413 are subject to the requirements of the CDA. See, e.g., Johnson Controls World Servs., Inc. v. United States, 43 Fed.Cl. 589 (1999).102
Because the government’s claim for a set-off based on the Optical pension surplus is governed by the CDA, the government must show either that it complied with the CDA or that it is exempt from obtaining an administrative decision from the contracting officer establishing Raytheon’s liability for the surplus.
The CDA requires that “[a]ll claims by the government against a contractor relating to a contract shall be the subject of a decision by the contracting officer.” 41 U.S.C. § 605(a)103; see also Wilner v. United States, 24 F.3d 1397, 1403 (Fed.Cir.1994) (en bane) (determining that in litigation under the CDA in the Court of Federal Claims, a contracting officer’s final decision “is of course necessary to establish jurisdiction”). As set forth in the regulations, and recognized by the Federal Circuit, see England v. Sherman R. Smoot Corp., 388 F.3d 844, 856 (Fed.Cir.2004), a contracting officer’s decision is required to include five components:
“(i) [description of the claim or dispute; (ii) [reference to the pertinent contract terms; (iii) [sjtatement of the factual areas of agreement and disagreement; (iv) [sjtatement of the contracting officer’s decision, with supporting rationale;” and (v) a paragraph advising the contractor of its appeal rights and the requirements for filing an appeal.
Id. (citing 48 C.F.R. § 33.211(a)(4)(i)-(v)). Importantly, a contracting officer’s decision must also include a demand for payment “in all eases where the decision results in a finding that the contractor is indebted to the Government.” Id. at 856 n. 7; 48 C.F.R. § 33.211(a)(4)(vi).
The government acknowledges that it does not have a contracting officer decision finding Raytheon liable for a pension surplus in connection with the Optical segment closing in accordance with the decision criteria identified above. Rather, Raytheon presented a certified claim to the government seeking a determination that:
(1) [Raytheon’s] computation of the [Optical] segment closing adjustment complies *298with CAS 413-50(c)(12); (2) the Government’s share of the aggregate adjustment is $13,816,382;[104] and (3) Raytheon is entitled to an upward adjustment of the price of the aforementioned contracts in the full amount of the Government’s share.
PX 25. The contracting officer denied Ray-theon’s claim in a written decision, stating:
It is my final contracting officer decision that: (1) the proposal in the company’s November 8, 2004 letter does not comply with CAS 413; (2) the Government will not share in any portion of the pension deficit segment closing amount; and (3) Raytheon is not entitled to an upward adjustment to the price of contracts cited in your letter or any other contracts) per CAS 413.50( [c] )(12)(vii).
PX 25. Therefore, the court cannot base its jurisdiction on any specific agency decision establishing Raytheon’s liability for the Optical segment surplus. See Wilner, 24 F.3d at 1403; Joseph Morton Co., 757 F.2d at 1281; 1-10 Indus. Assocs., 528 F.3d at 862.
In addition, the government cannot establish this court’s jurisdiction over its setoff claim on the grounds that the court has jurisdiction over Raytheon’s Optical claim. The fact that there was a decision on Ray-theon’s claim does not excuse the government from having to provide its own contracting officer decision. Each specific claim has to have been the subject of a contracting officer decision. Joseph Morton Co., 757 F.2d at 1281.
The purpose of this requirement is to ensure that the contractor is on notice of its potential liability. Applied Cos., 144 F.3d at 1478 (explaining that the primary intent behind the CDA was to “create opportunities for informal dispute resolution at the contracting officer level and to provide contractors with clear notice as to the government’s position regarding contract claims”); Johnson Controls, 43 Fed. Cl. at 592 (“A valid claim must give adequate notice by specifying the basis and amount of liability.”). Here, Raytheon did not have notice of the government’s claim to a pension surplus in connection with the Optical segment closing until trial. To the contrary, the DCMA CIPR Center initially approved, and the DCAA did not take exception to, Raytheon’s pension deficit calculation for the Optical segment, except insofar as it included a deficit for PRBs. PX 108; PX 110. Raytheon would have had no reason to suspect that the government would later seek a set-off. Indeed, there was no suggestion by any government official that Raytheon might owe the government a payment following the Optical segment closing. Thus, Raytheon did not have any notice of the government’s claim, contrary to the requirements of the CDA
Finally, the decisions of the Fifth and Seventh Circuits in United States v. Renda Marine, Inc., 667 F.3d 651 (5th Cir.2012) and United States v. T & W Edmier Corp., 465 F.3d 764 (7th Cir.2006), which identify circumstances where the government is not required to obtain a contracting officer decision, do not excuse the government’s failure to obtain a contracting officer decision in this ease. In Renda Marine and Edmier, the Fifth and Seventh Circuits decided that the CDA does not require the government to obtain its own administrative decision where a court or board determines that a contractor has been awarded too much by the contracting officer and the government seeks to recoup its overpayment on the contractor claim in a separate case. In that situation, the courts correctly held that the government is not asserting its own claim but is seeking to recover a portion of the amount overpaid on the contractor’s claim and thus the contractor’s claim (and contracting officer’s subsequent decision) satisfies any CDA requirement. Here, of course, the government is seeking to set-off the amount it owes Ray-theon for two other CAS 413 claims (for the AIS and Aerospace segments) with a government claim for payment under CAS 413 (for the Optical segment). Thus, this case does not involve collection of a contractor overpayment following a contracting officer’s decision, where a separate government CDA claim is not required.
*299In sum, because the government needed a CDA decision in order to obtain payment from Raytheon for the Optical pension surplus and failed to obtain one, and because the court cannot find any reason for excusing the government’s failure to comply with the CDA’s jurisdictional requirements, this court will not exercise jurisdiction over the government’s claim for a set-off of the pension surplus arising from the Optical segment closing. Accordingly, the court does not reach the government’s additional arguments relating to the proper calculation of the Optical segment closing adjustment and the government’s share thereof.
C. PWF was not a “segment” within the meaning of CAS 413-30(a)(19) and therefore its sale did not trigger the need for a segment closing adjustment
As previously discussed, the evidence at trial established that Raytheon underwent a period of restructuring following its merger with Hughes, TI, CTAS, and E-Systems in the 1990s. As a part of this restructuring, Raytheon set up internal service centers known as the “Centers of Excellence” that specialized in the production of a particular product for use by Raytheon’s other businesses. Tr. 376-77 (Cann) (“The Centers of Excellence were assigned to certain segments for management purposes, and they produced Printed Wire Fabrication, printed wiring boards, CCA would have been Circuit Card Assembly, and MF would have been Metal Fabrication.”). One of the businesses within the Centers of Excellence was the PWF business, which was responsible for producing printed wire circuit boards used in Raytheon’s aerospace and defense businesses. See Tr. 239, 245-46 (Murphy); Tr. 377 (Cann). Raytheon sold PWF to Tyco Printed Circuit Group LP (“Tyco”) on April 21, 2001. PX 28.
On November 8, 2004, Raytheon submitted a certified claim to the government for the government’s participation in a pension deficit it calculated for the alleged PWF segment. Id. As with Raytheon’s claims arising out of the AIS and Optical segment closings, the government contracting officer denied Raytheon’s certified claim in its entirety by a contracting officer’s final written decision dated February 1, 2005. PX 29. The reason stated by the contracting officer for denying Raytheon’s certified claim was Raytheon’s failure to fund the pension costs in the current tax year pursuant to FAR 31.205-6(j)(1)(i) and (j)(2)(i)(A). Id.
At trial, Raytheon presented evidence to support its claim for the government’s participation in a PWF segment closing adjustment in the amount of $1,419,507.10, based on composite calculations performed on the two pensions plans — the RTIS and Nonbar-gaining plans — with participants in the alleged PWF segment.
The government challenges Raytheon’s claim based on evidence that demonstrates PWF did not meet the definition of a “segment” under CAS 413-30(a)(19) and therefore, no segment closing adjustment was triggered by the sale of PWF to Tyco. The government also challenges Raytheon’s segment closing adjustment for the alleged PWF segment on the merits with testimony from its expert, Mr. England.
The court will first address its findings with regard to whether the PWF business meets the definition of a segment under the CAS. CAS 413 defines the term “segment” as follows:
Segment means one of two or more divisions, products departments, plants, or other subdivisions of an organization, reporting directly to a home office, usually identified with responsibility for profit and/or producing a product or service.
CAS 413-30(a)(19).
The government argues that the evidence at trial made clear that the PWF business unit was not a segment within the meaning of CAS 413-30(a)(19). First, the government points to the fact that the limited evidence presented established that PWF was one of three internal service centers, which reported to a home office as a part of a Centers of Excellence reporting unit. PX 28.0002 (Ray-theon’s certified claim identifying PWF as “an internal service center”); Tr. 238-239 (Murphy) (“PWF was part of the Centers of Excellence which, in fact, reported to defense *300systems as a home office.... I cannot sit here and tell you what the organizational reporting relationship was in actuality. I don’t know.”) (emphasis added). There was no evidence introduced to show that PWF itself reported directly to a home office. Second, the government relies on testimony to show that PWF never had any CAS contracts or subcontracts of its own and thus the government never directly reimbursed PWF for its pension costs. Tr. 223, 241 (Murphy). Pension costs for work done by the PWF unit were instead allocated to the CAS-eov-ered contracts of other parts of Raytheon. Tr. 406 (Cann); Tr. 239-40 (Murphy) (PWF pension costs were not allocated to any PWF contracts or subcontracts). Thus, there would have been no reason to treat it as a segment under the CAS. Finally, the government points to Raytheon’s admission in its CAS disclosure statement, PX 426.0001, .0017, that PWF was one of three units that were part of the “Centers of Excellence” that reported to Electronic Systems as a home office. The government asserts this further demonstrates that PWF was not a segment because CAS regulations require that “[w]hen a Disclosure Statement is required, a separate Disclosure Statement must be submitted for each segment whose costs included in the total price of any CAS-eovered contract or subcontract exceed [a threshold amount.]” 48 C.F.R. § 9903.202-l(c).
Raytheon argues in response that PWF is a segment because the government treated it as a segment when the government required Raytheon to submit a CAS 413 segment closing adjustment following the sale of PWF.105 Raytheon further relies on the testimony of Mr. Cann, Raytheon’s Assistant Controller for Government Accounting, to assert that the existence of a disclosure statement shows that PWF was a segment. The reason only one CAS disclosure statement was filed for three Centers of Excellence, Ray-theon explains, was because, “the accounting practices weren’t different for each of the segments listed_” Tr. 381-83 (Cann). Raytheon asserts that a single disclosure statement was filed, rather than three, for convenience purposes. Finally, Raytheon argues that the fact that PWF did not itself hold any government contracts or subcontracts is not conclusive in determining its status as a segment. Raytheon argues that a “government share” under CAS 413-50(c)(12)(vi) can be calculated by examining the costs allocated to PWF that were charged through other contracts and subcontracts.106 For all of these reasons, Raytheon urges the court to conclude that PWF was a segment within the meaning of CAS 413-30(a)(19).
Based on the evidence presented at trial, the court agrees with the government that the PWF business was not a segment within the meaning of CAS 413-30(a)(19). First, Raytheon did not produce evidence to show that PWF met the definition set forth in the CAS. Raytheon did not present any testimony or evidence to show that PWF ever “reported] directly to a home office” as required by the CAS 413-30(a)(19). Second, as the government correctly observes, the only reference to PWF found in the CAS disclosure statement submitted by Raytheon identifies PWF as part of a segment and not as a segment on its own. PX 426.0001, .0017. Raytheon’s CAS disclosure statement clearly designates “Centers of Excellence” as the “Company or Reporting Unit” and later as *301the “[s]egment or business unit reporting directly to a home office.” PX 426.0001. The disclosure statement identifies PWF among the individual businesses listed within an “Item Description” of the “Reporting Unit.” PX 426.0017. Therein, PWF was listed as among the “Corporate Service Centers aligned to ES [Electronic Systems].” Id.; see also PX 28.0002 (Raytheon’s certified claim identifying PWF as “an internal service center”). Thus, Raytheon itself apparently recognized that PWF was not an individual segment.
Taken together, the court finds that the evidence weighs in favor of the government’s position and that the government has met its burden in establishing that PWF was not a segment. Accordingly, the sale of PWF to Tyco should not have triggered a segment closing adjustment. Raytheon’s claim for payment of the government’s share of the pension deficit identified for PWF in Ray-theon’s segment closing adjustment must be rejected.107
D. Aerospace segment closing calculations
On June 8, 2001, Raytheon sold the Aerospace segment to Veritas Capital. PX 33. The parties agree that under CAS 413-30(a)(20) the June 8, 2001 sale resulted in a “segment closing” requiring Raytheon to perform CAS 413-50(c)(12) segment closing calculations for each of the Aerospace segment’s defined benefit pension plans. There were two Raytheon defined benefit pension plans covering Aerospace segment employees: 1) Raytheon Aircraft Company Retirement Income Plan for Salaried Employees and 2) Raytheon Aircraft Holdings Base Retirement Plan.
On January 24, 2005, Raytheon submitted a certified claim to the government for- the government’s participation in the pension deficit Mercer had calculated for the Aerospace segment. PX 33. As with Raytheon’s claims arising out of the AIS and Optical segment closings, the government contracting officer denied Raytheon’s certified claim in its entirety by a contracting officer’s final written decision dated March 7, 2005. PX 34. The primary reason stated by the contracting officer for denying Raytheon’s certified claim was Raytheon’s failure to fund the pension costs in the current tax year pursuant to FAR 31.205 — 6(j)(1)(i) and (j)(2)(i)(A). Id.108
Raytheon then filed its claim in the Court of Federal Claims and sought the government’s participation in the following segment closing adjustment deficit:
Pension Plan Surplus/fDeficit)
Raytheon Aircraft Company Retirement Income Plan for Salaried Employees ($5,068,177)
*302Raytheon Aircraft Holdings Base Retirement ($1,058,192)
Total Aerospace Segment Closing Adjustment ($6,126,369)
PX 428.0041. The court previously held that the government could not challenge Ray-theon’s asset and liability segment closing adjustment calculations for these two plans in the Aerospace segment because of the government’s judicial admission to the court that those calculations were not in dispute. See Order on Mot. to Strike, Dec. 14, 2010, ECF No. 199.
Therefore, the only issue remaining concerning the Aei’ospaee segment closing is the proper calculation of the government’s share of the Aerospace pension deficit. In the same manner as previously discussed for the AIS segment, Raytheon has performed a government share calculation based on sales data for the Aerospace segment as follows:
A. Government B. Government C. Government D. Surplus/ Total Government Participation Participation Share Percentage (Deficit) Share Surplus/ Numerator Denominator (A/B) Amount (Deficit) (C x D)
Raytheon Aircraft $2,253,977.00 $5,073,491.00 44.4265496874% ($5,068,177) ($2,261,616.17) Salaried
Raytheon Aircraft $3,899,351.00 $6,054,361.00 64.4056573435% ($1,058,192) ($681,535.51) Base
Aerospace — Total ($2,933,151.69)
PX 428.0054; PX 83.
The government contends that Raytheon’s Aerospace segment government share calculations must be rejected because Raytheon failed in its calculations to account for pension costs that were paid in connection with fixed price contracts between 1978 and 1995, when the original CAS was in effect. The government argues that it is entitled to an equitable adjustment removing these amounts from the amounts owed to Raytheon in connection with the Aerospace segment closing. The government has offered no alternative government share calculation of its own for the Aerospace segment. For the reasons stated previously, supra Part III. A.4.b., despite its earlier ruling that the government is entitled to an equitable adjustment through the exclusion of pension costs allocated to firm fixed price contracts subject to the original CAS 413, the court must conclude that it does not have jurisdiction over the government’s equitable adjustment claim for the Aerospace segment.
Accordingly, the court finds that the government’s share of the Aerospace segment closing adjustment is $2,933,151.69.
IV. Conclusion
For the foregoing reasons, the court finds that Raytheon’s claims for the AIS and Optical segments are not barred by the AIS and Optical novation agreements and that Ray-theon is entitled to the following government share amounts on its segment closing adjustment claims:
*3031. AIS Segment: $56,276,815.61 plus interest pursuant to 41 U.S.C. § 7109(a)(1)
2. Optical Segment: $0.00
3. Alleged PWF Segment: $0.00
4. Aerospace Segment: $2,933,151.69 plus interest pursuant to 41 U.S.C. § 7109(a)(1)
Because the government has not provided a contracting officer’s decision on its claims for an equitable adjustment or for a set-off, the court also finds that it does not possess jurisdiction over those claims, and therefore the government is not awarded any monetary relief in this case. Accordingly, the court directs the Clerk to enter judgment for Raytheon in the amount of $59,209,967.30 plus interest pursuant to 41 U.S.C. § 7109(a)(1).109 Each party shall bear its own costs.
IT IS SO ORDERED.
. A defined benefit pension plan is one "in which the benefits to be paid or the basis for determining such benefits are established in advance and the contributions are intended to provide the stated benefits.” 48 C.F.R. § 9904.412-30(a)(10).
. Except as otherwise provided, the court will cite 48 C.F.R. pt. 9904 as "CAS.”
. As discussed in further detail infra Part III.C., one of the questions presented in this case is whether PWF was a "segment” as defined by CAS 413 — 30(a)(19). CAS 413-30(a)(19) provides, in relevant part:
Segment means one of two or more divisions, product departments, plants, or other subdivisions of an organization reporting directly to a home office, usually identified with responsibility for profit and/or producing a product or service.
Id.
.
Segment closing means that a segment has (i) been sold or ownership has been otherwise transferred, (ii) discontinued operations, or (iii) discontinued doing or actively seeking Government business under contracts subject to this Standard.
CAS 413-30(a)(20) (emphasis added).
.
If a segment is closed, if there is a pension plan termination, or if there is a curtailment of benefits, the contractor shall determine the difference between the actuarial accrued liability for the segment and the market value of the assets allocated to the segment, irrespective of whether or not the pension plan is terminated. The difference between the market value of the assets and the actuarial accrued liability for the segment represents an adjustment of previously-determined pension costs.
CAS 413-50(c)(12) (emphasis added).
. Allegheny Teledyne dealt with segment closings under the original CAS 413, which was issued by the CAS Board in 1977 and became effective in 1978. Gates dealt with segment closings under the amended CAS 413. The Federal Circuit has explained the changes in the amended CAS 413 as follows:
In 1995 the new Board (created in 1988) amended CAS 413. The amendments were a *240part of several changes to the regulatory framework brought about by concerns about over-funded pension plans. 60 Fed.Reg. 16,-534, 16,534-35 (Mar. 30, 1995). The amendments made two significant changes. First, they specifically defined "segment closing." 48 C.F.R. § 9904.413-30(a)(20) (1995). Second, they added a specific formula for allocating a pension surplus or deficit between the contractor and the government. Id. § 9904.413.50(c)(12).
Allegheny Teledyne, 316 F.3d at 1371. This case involves segment closings under the amended CAS 413.
.
The Government’s share of the adjustment amount determined for a segment shall be the product of the adjustment amount and a fraction. The adjustment amount shall be reduced for any excise tax imposed upon assets withdrawn from the funding agency of a qualified pension plan. The numerator of such fraction shall be the sum of the pension plan costs allocated to all contracts and subcontracts (including Foreign Military Sales) subject to this Standard during a period of years representative of the Government’s participation in the pension plan. The denominator of such fraction shall be the total pension costs assigned to cost accounting periods during those same years. This amount shall represent an adjustment of contract prices or cost allowance as appropriate. The adjustment may be recognized by modifying a single contract, several but not all contracts, or all contracts, or by use of any other suitable technique.
CAS 413-5 0 (c)(12) (vi).
. Throughout this period, Raytheon relied upon Mercer Human Resource Consulting ("Mercer”), an outside actuary firm, to prepare its pension work, including its CAS 413 segment closing calculations. Previously known as William & Mercer and Mercer Consulting Group, Mercer is an international benefits consulting firm that provides actuarial services and human resource consulting to clients. Tr. 673 (Winer).
. Raytheon paid the government in connection with the surplus segment closings resulting from the sale of the Raytheon Engineers & Constructors ("RE & C”), Semiconductor, and Montek Aerospace ("Montek”) segments. Tr. 46-47, 74-75 (Murphy). A dispute over the interest calculations for the surplus payment in RE & C and Montek was the subject of the Federal Circuit's decision in Gates. 584 F.3d at 1065-66.
. As described in greater detail below, the government had originally contemplated offsetting surplus segment closing adjustments with deficit segment closing adjustments. However, when the government determined that it could not follow through with that offset plan, Raytheon paid the government its share of the surplus segment closing adjustments. Raytheon now seeks to recover the government’s share of the deficit segment closing adjustments.
. Declining the parties' invitations to revisit pri- or rulings in earlier CAS 413 cases on three additional issues, the court also held: 1) the funding requirements of the Federal Acquisition Regulations (“FAR”) and CAS do not bar Ray-theon's segment closing adjustment claims; 2) the FAR's Limitation of Cost and Limitation of Funds clauses do not limit Raytheon's claims, because the CAS 413 segment closing adjustment represents an adjustment of previously determined pension costs and does not increase contract-specific costs; and 3) the government is entitled to an equitable adjustment to the extent that application of the amended CAS 413 results in the government owing more under the amended CAS for pension costs than it would have owed under the original CAS. See Raytheon II, 96 Fed.Cl. at 552, 554-55 (citing Gen. Motors Corp. v. United States, 66 Fed.Cl. 153 (2005) and Viacom, Inc. v. United States, 70 Fed.Cl. 649 (2006)). As discussed infra Part III.A.4.b., the court’s ruling on the government's claim for an equitable adjustment has been modified to reflect the undisputed fact that the government never obtained a contracting officer's decision on its claim.
. The AIS novation agreement contains this one deviation from the FAR form novation agreement in clause (b)(1), where "claim” is written in the singular rather than the plural "claims." This deviation does not materially impact the court’s decision.
. As die DCE, Mr. McGrath was responsible for overseeing Raytheon’s compliance with governmental regulations, including CAS 413. See infra Part II.A.1.a. In this capacity, Mr. McGrath was the contracting officer responsible for issuing a decision on Raytheon’s CDA claims for the government’s share of any segment closing pension deficits. See infra Part III.
. Herbert Homer was the DCE until his death on September 11, 2001. Mr. Christiansen and Mr. Dowd served as Acting DCEs between September 2001 and April 2002. Tr. 1165 (Dowd); Tr. 1317 (Christiansen).
. Pursuant to pre-trial stipulations, the witnesses called by both parties testified first for Raytheon and then for the government.
. During his twenty-two year career with the DCMA, Mr. McGrath served as a supervisory cost and price analyst, a contracting officer, a systems contracting officer, a divisional administrative contracting officer ("DACO”), a principal administrative contracting officer, and a DCE. Tr. 1317-18. Mr. McGrath also holds a master's degree in Public Administration and received training during his time at the DCMA on the CAS, including CAS 413. Tr. 1318.
. Advance agreements may be entered into between the government and a contractor prior to the incurrence of the costs involved in a contract and serve to express the parties’ understanding and avoid possible subsequent disputes or disal-lowances. See FAR 31.109.
.As explained by Mr. Terrence Murphy, Ray-theon’s Assistant Controller for Government Accounting from 2000 to 2005, Open Items meetings were typically attended by representatives from Raytheon, the DCMA, and the DCAA. Tr. 47-48. Raytheon would prepare the list of the open items needing government or Raytheon action for the government’s review. Tr. 48. The items would be logged with dates and comments as to their current state as well as a column stating whether the action required was a DCAA action, DCMA action, or Raytheon action. Tr. 48. The government had an opportunity to add or change items on the list. Tr. 48-49 ("The process was that we would have a meeting one week, and after that we would mark up the changes that we had. We'd ask the government to do the same. They would send it back to us, and my organization actually finalized and printed up the documents. We would send it out in advance of the meeting to the government so when we sat down we had a current version of *244the items.... [T]he purpose of the meeting was to be able to sit down in that small group and go over what was the process and how we were going to close these items out.").
. As discussed supra note 9, these sales were part of an overall divesting strategy of Raytheon which included segments that had pension surpluses.
. Mr. Kingston was the counsel advising Mr. McGrath on both the CAS 413 issues and the novation agreement. Tr. 1363-64.
. This document, dated July 23, 2004, is found in DX 114 and is called the "DCMA/DCAA Joint Guidance Implementing the Teledyne Decision on CAS 413(50)(c)(12) Segment Closing Adjustments” ("DCMA/DCAA Joint Guidance”). In relevant part, the DCMA/DCAA Joint Guidance provides as follows with respect to pension deficit situations:
When there is a segment closing deficit, the Government's share of the deficit is an allowable cost only if the contractor has funded it no later than the contractor's Federal income tax deadline for the year of the segment closing (including extensions) in accordance with FAR 31.205—6(j)(1)(i) and (j)(2)(i)(A). Therefore, any portion of a segment closing deficit not funded by such time should be disallowed.
Id.
. This issue relates to the government share calculation which is addressed later in this opinion.
. Mr. Dowd has worked for the DCMA’s Ray-theon Corporate Office since the early 1980s, with the exception of a three-year period in the mid-1980s when he worked as a contract buyer for the Air Force. Tr. 1214-17. In 1999, he became a corporate cost analyst. Tr. 1216. Mr. Dowd served as an acting DCE from late 2001 to early 2002 and became DCE/CACO ("Corporate Administrative Contracting Officer”) in December 2006. Tr. 1162, 1215-16.
. Mr. Harris joined Raytheon in 1983 as a member of the Contracts Management Development Program. Tr. 1083. His positions at the company have included Contract Specialist, Contracts Administrator, Contracts Manager, Section Contracts Manager, Deputy Division Contracts Manager, Vice President of Contracts for Ray-theon Technical Services, Staff Executive to the Chairman and CEO of Raytheon Company, Vice President of Contracts for Electronic Systems (one of Raytheon’s largest segments at the time), Vice President of Contracts for Government Defense Elements of Raytheon Company, and Vice President of Contracts for all of Raytheon. Tr. 1083-84. Mr. Harris has also been elected as an officer of the company and has held responsibility at different times "for operations, all manufacturing, supply chain, safety, security, all the different areas within the company.” Tr. 1084. In March of 2010, Mr. Harris became President of Raytheon Technical Services Company, an organization responsible for engineering, training, and logistics capabilities, with annual revenues in 2010 of $3.5 billion with 10,000 employees working in 440 locations in 80 countries around the world. Tr. 1085-86.
. At Mercer, Ms. Tully's largest client was Ray-theon. While consulting with Raytheon, Ms. Tully worked with Jonathan Barry and Jim Winer, the primary actuaries on the account. Tr. 429. Ms. Tully worked on the CAS 413 segment closing calculations for the Optical segment and the alleged PWF segment. Tr. 431.
. Mr. Murphy joined Raytheon in February of 1966. After a year in the manufacturing operation he participated in Raytheon’s Financial Management Development Program. Mr. Murphy thereafter held a number of positions in the company before moving to corporate headquarters in the 1980s as a cost proposal coordinator for the corporation. Tr. 20-21. Mr. Murphy became a division controller for a division of the corporation, Microwave and Power Tube Division, in the early 1990s. Tr. 21. In the late 1990s Mr. Murphy again became a corporate cost proposal coordinator. Id. In 2000, Mr. Murphy became the assistant controller for Government Accounting and worked in that capacity from until January of 2005, at which time he retired from Raytheon. Id.
. The text of the waiver is set forth above, but is repeated here for convenience:
(b) In Consideration of These Facts, the Parties Agree that by this Agreement:
(1) The Transferor confirms the transfer to the Transferee, and waives any claim and rights *253against the Government that it now has or may have in the future in connection with the contracts.
AIS novation agreement; see also FAR 42.1204(i)(b)(1).
. Tr. 1362-69 (McGrath).
. DCE McGrath testified that he was aware during his tenure as DCE that Raytheon retained the pension plans as part of the divestiture of AIS. Tr. 1336; see also PX 41.0112 ("The Sellers shall retain all liability and responsibility for the defined benefit pension plans maintained by the Sellers in which Transferred Employees participate as of the Closing....").
. Tr. 1377, 1379 (McGrath); Tr. 1312-14 (Christansen); Tr. 1213 (Dowd); Tr. 999-1000 (Schepley); Tr. 293-94 (Garvey); Tr. 452 (Tully); Tr. 229 (Murphy); Tr. 389 (Cann).
. Tr. 1279-80, 1307 (Christiansen); Tr. 990 (Schepley); Tr. 1042 (McKenzie); Tr. 1103 (Harris).
. Tr. 1213 (Dowd); Tr. 1312 (Christiansen); Tr. 1382 (McGrath).
. Raytheon argues that it submitted its CAS 413 calculations well before the novation agreement was signed and that the government was therefore on notice of its "claim” for the pension deficit identified following the AIS segment closing.
. The Anti-Assignment Act is comprised of 41 U.S.C. § 15 (pertaining to assignment of contracts) and 31 U.S.C. § 3727 (pertaining to assignment of claims). Under 41 U.S.C. § 15(a), "[n]o contract ... or any interest therein, shall be transferred by the party to whom such contract ... is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States is concerned.” Though in effect at the time the events in this action occurred, 41 U.S.C. *255§ 15 was repealed, approved January 4, 2011; the prohibition on transfer of contract and certain allowable assignments is now found at 41 U.S.C. § 6305.
.Transfers or assignments occurring by operation of law are also exempt from the statutes' application. Shannon, 342 U.S. at 292, 72 S.Ct. 281 ("the statute does not apply to assignments by operation of law, as distinguished from voluntary assignments”); Tuftco Corp. v. United States, 614 F.2d 740, 745 (Ct.Cl.1980) (“the courts have held selected assignments to be by operation of law and exempt from the statutes’ prohibition”); L-3 Commc'ns Integrated Sys., L.P. v. United States, 84 Fed.Cl. 768, 776 n. 13 (2008); Westinghouse Elec. Co., 56 Fed.Cl. at 569; Johnson Controls World Servs., Inc. v. United States, 44 Fed.Cl. 334, 343 (1999).
. The form novation agreement was added to the defense contracting regulations on July 18, 1956, 21 Fed.Reg. 5359 (codified at 32 C.F.R. § 16.505), and the civilian contracting regulations on November 28, 1973, 38 Fed.Reg. 32,-808-10 (codified at 41 C.F.R. § 1-26.402). When the FAR system was created in 1984, this provision was recodified in FAR Subpart 42.12. See 48 Fed.Reg. 42,381-83.
. Indeed, the testimony established that most of the time spent on the novation agreement was *256spent on identifying contracts. Tr. 1103 (Harris); Tr. 986 (Schepley); Tr. 1038-39 (McKenzie).
. See CAS 413-50(c)(12)(v) ("If a segment is closed due to a sale or other transfer of ownership to a successor in interest in the contracts of the segment and all of the pension plan assets and actuarial accrued liabilities pertaining to the closed segment are transferred to the successor segment, then no adjustment amount pursuant to this paragraph (c)(12) is required.”).
. See Gates, 584 F.3d at 1067 ("The requirement that contract prices be ‘adjusted accordingly’ indicates that, as the CAS Board’s promulgation comments state, '[ujnder this final rule, the [CAS 413-50(c)(12) ] adjustment is determined as a current period adjustment.’ ” (quoting 60 Fed.Reg. 16,534, 16,539 (Mar. 30, 1995))); see also Allegheny Teledyne, 316 F.3d at 1382-83 (holding that the prior version of CAS 413 requires a current period adjustment); Teledyne, 50 Fed.Cl. at 170-71 ("The CAS 413 segment closing adjustment was triggered because Teledyne retained responsibility for the pensions, but not the contracts over which the gains and losses attributable to the government’s share of pension costs would ordinarily be amortized”); Gen. Elec. Co. v. United States, 84 Fed.Cl. 129, 133 (2008).
. See DIRECTV Grp., 670 F.3d at 1376 (in contrast to the original CAS 413, "[r]evised CAS 413 requires that the adjustment be 'based on the pension plan assets and actuarial accrued liabilities remaining with the contractor,' [CAS] 413-50(c)(12)(v) (1996) (emphasis added)”); CAS 413-50(c)(12)(v) ("If only some of the pension plan assets and actuarial accrued liabilities of the closed segment are transferred, then the adjustment amount required under this paragraph (c)(12) shall be determined based on the pension plan assets and actuarial accrued liabilities remaining with the contractor.”).
. See CAS 413-50(c)(12)(vi) ("The adjustment may be recognized by modifying a single contract, several but not all contracts, or all contracts, or by use of any other suitable tech*257nique.”); CAS 413—50(c)(12)(vii) ("The full amount of the Government’s share of an adjustment is allocable, without limit, as a credit or charge during the cost accounting period in which the event occurred and contract prices/ costs will be adjusted accordingly. However, if the contractor continues to perform Government contracts, the contracting parties may negotiate an amortization schedule, including interest adjustments.”).
. Having determined that the novation agreement does not bar the claim, the court does not have to reach the issue of whether the waiver was vitiated by the government's actions after the novation agreement was signed.
. As with the AIS segment, pursuant to pre-trial stipulations, the witnesses called by both parties testified first for Raytheon and then for the government.
. As mentioned previously, Mr. McGrath testified that he worked for the DCMA from 1984 to 2006, and was assigned to Raytheon throughout his time with the DCMA. Tr. 1316. During his twenty-two year career with the DCMA, Mr. McGrath served as a supervisory cost and price analyst, a systems contracting officer, a DACO, a principal administrative contracting officer, and a DCE. Tr. 1316-18. Mr. McGrath also holds a master's degree in Public Administration and received training during his time at the DCMA on the CAS, including CAS 413. Tr. 1318.
.Mr. McGrath’s role as DCE is described in detail in connection with his testimony regarding the AIS segment closing. See supra Part II. A. l.a.
. As mentioned previously, Mr. Dowd was a corporate cost analyst for the DCMA assigned to Raytheon’s corporate office at the time of the events in this case with chief responsibility for overseeing Raytheon’s compliance with the CAS. Tr. 1162-63, 1214-17. Mr. Dowd has worked for the DCMA’s Raytheon Corporate Office since the early 1980s, with the exception of a three-year period in the mid-1980s when he worked as a contract buyer for the Air Force. Id. In 1999, he became a corporate cost analyst. Tr. 1216. Mr. Dowd served as an acting DCE from late 2001 to early 2002 and became DCE/CACO ("Corporate Administrative Contracting Officer’’) in December 2006. Tr. 1162, 1215-16.
. As mentioned previously, Mr. Christiansen is a corporate contract specialist for the DCMA assigned to Raytheon’s corporate office with a specialty in corporate restructuring and mergers and acquisitions. Mr. Christiansen has worked for the DCMA assigned to Raytheon since 1985, and with the exception of a 60-day period as an acting DCE he has been a corporate contract specialist since 1996. Tr. 1252.
. Mr. Faith worked in the Finance and Accounting Department with Hughes Aircraft from 1982 through 1986 and in the Contracts Department for the two firms from 1986 through 2007. Tr. 1131-32. Mr. Faith transitioned into a management role in 1998 as Director of Contracts for the Surveillance and Reconnaissance Business. Tr. 1132-33. He assumed the role of Vice President of Contracts for the Space and Airborne Systems Business from 2002 through 2007, before assuming his current role as Raytheon's Vice President of Program Management for the Space Systems Business. Tr.. 1132.
. As previously mentioned, Mr. Murphy joined Raytheon in February of 1966. After a year in the manufacturing operation he participated in Raytheon’s Financial Management Development Program. Mr. Murphy thereafter held a number of positions in the company before moving to corporate headquarters in the 1980s as a cost proposal coordinator for the corporation. Tr. 20-21. Mr. Murphy became a division controller for a division of the corporation, Microwave and Power Tube Division, in the early 1990s. Tr. 21. In the late 1990s, Mr. Murphy again became a corporate cost proposal coordinator. Tr. 21. In 2000, Mr. Murphy became the assistant controller for Government Accounting and worked in that capacity from until January of 2005, at which time he retired from Raytheon. Tr. 21.
. The text of the waiver is set forth above, but is repeated here for convenience:
(b) In Consideration of These Facts, the Parties Agree that by this Agreement:
(1) The Transferor confirms the transfer to the Transferee, and waives any claims and rights against the Government that it now has or may have in the future in connection with the contracts.
Optical novation agreement; see also FAR 42.1204(i)(b)(1).
. To the contrary, the evidence again established that the government and Raytheon employees involved in the negotiations on both issues believed up until issuance of the DCMA/ DCAA Joint Guidance in July 2004 that Raytheon was entitled to payment of the government’s share of any pension deficit identified in the segment closing calculations undertaken after the Optical sale to B.F. Goodrich. Tr. 1367-69 (McGrath); Tr. 1179-81, 1192, 1199-1201 (Dowd); PX 84 (August 14, 2002 DCAA audit *265report accepting Raytheon's proposed government participation percentage and determining that the government's share of the Optical deficit would be $8,182,463); PX 269 (April 22, 2003 letter from DCMA to Raytheon stating DCMA was in agreement with $8,182,463 as the Optical deficit adjustment amount). The evidence established that both sides understood that Raytheon had not transferred its pension obligations. Optical Asset Purchase Agreement, PX 230.0048 ("The Seller will retain all liability and responsibility for the defined benefit pension plans maintained by Seller in which Transferred Employees participate as of the Closing Date_”). In addition, although a formal certified claim for that pension deficit was not filed until November 8, 2004, see PX 26, neither the government nor Raytheon employees negotiating the CAS 413 segment closing adjustment understood that the waiver in the novation agreement barred their negotiations after the novation agreement was signed by all parties. The witnesses from both sides explained at trial that the novation agreement was in the form prescribed in FAR 42.1204(i). Government witnesses responsible for overseeing Raytheon’s contracts and cost accounting compliance confirmed that they did not understand the novation agreement to have any bearing on the negotiations over Raytheon's CAS 413 Optical segment closing calculations. It was not disputed that the government employees who had been negotiating the CAS 413 segment closing adjustment did not learn that Raytheon had potentially waived its claim for payment of its CAS 413 segment closing deficit until they were told by government attorneys after the lawsuit was filed.
. Having determined that the novation agreement does not bar the claim the court does not have to reach Raytheon’s alternative claim that the waiver in the novation agreement was vitiated by the government's actions after the novation agreement was signed.
. Raytheon created the AIS segment by consolidating various businesses that Raytheon had acquired when it bought E-Systems in 1995, CTAS in 1996, and TI Systems in 1997. Tr. 173 (Murphy); Tr. 708 (Winer); PX 19; DX 130. In each of those transactions, Raytheon acquired all of the pension assets and actuarial liabilities of the transferred entity and therefore no segment-closing adjustment was performed. Id.
.As previously noted, CAS 413-50(c)(12)(vi) states:
The Government's share of the adjustment amount determined for a segment shall be the product of the adjustment amount and a fraction. The adjustment amount shall be reduced for any excise tax imposed upon assets withdrawn from the funding agency of a qualified pension plan. The numerator of such fraction shall be the sum of the pension plan costs allocated to all contracts and subcontracts (including Foreign Military Sales) subject to this Standard during a period of years representative of the Government's participation in the pension plan. The denominator of such fraction shall be the total pension costs assigned to cost accounting periods during those same years. This amount shall represent an adjustment of contract prices or cost allowance as appropriate. The adjustment may be recognized by modifying a single contract, several but not all contracts, or all contracts, or by use of any other suitable technique.
Id.
. CAS 413-50(c)(12)(vii) provides a mechanism for this settling-up, as follows:
The full amount of the Government’s share of an adjustment is allocable, without limit, as a credit or charge during the cost accounting period in which the event occurred and contract prices/costs will be adjusted accordingly. However, if the contractor continues to perform Government contracts, the contracting parties may negotiate an amortization schedule, including interest adjustments. Any amortization agreement shall consider the magnitude of the adjustment credit or charge, and the size and nature of the continuing contracts.
Id.
. Seay Anne Sheley is the regional special programs manager for the DCAA’s regional office in Lowell, Massachusetts and previously held the position of contract audit coordinator ("CAC”) assigned to DCAA’s Raytheon corporate office from January 2002 to December 2005. Tr. 603-04 (Sheley). Ms. Sheley testified regarding her role in coordinating DCAA’s audit reviews of the Raytheon segment closings at issue in this case. Tr. 605-07 (Sheley).
. Deborah Tully later was later hired by Ray-theon to replace Michael Garvey as Raytheon's Director of Benefits Finance, beginning in May 2003. Tr. 427; see also supra Part II.A.1.h.
. In fact, the DCMA CIPR Center did not question Mercer's segment closing adjustment calculations analysis in preparing their segment closing adjustment for AIS or any of the other segments, with the exception of PWF. Tr. 44-45, 92 (Murphy); PX 99.
.
[T]he Government’s share [for the Montek segment] was $487,305. On August 30, 2004, the Government ... requested that Raytheon pay the adjustment.... On September 21, 2004, Raytheon submitted a check for the segment closing adjustment, but refused to pay interest. ... The parties disputed the appropriate amount of [the Government’s share for the RE & C segment] for some time, and eventually settled on a Government share of $14,681,268. On August 31, 2004, the Government requested payment of the calculated adjustment, as well as simple interest on that amount dating back to the segment closing. On September 21, 2004, Raytheon submitted a check for the segment closing adjustment, but refused to pay interest.
Gates, 584 F.3d at 1065.
. The CDA sets forth the following requirements for claim certification:
For claims of more than $100,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable, and that the certifier is duly authorized to certify the claim on behalf of the contractor.
41 U.S.C. § 605(c)(1) (this provision of the CDA is now codified at 41 U.S.C. § 7103(b)).
. Mr. Vernon has been a consulting actuary for 36 years. He is a member of the Society of Actuaries and for a period in his career was an enrolled actuary under ERISA. Tr. 1582. Among his positions, Mr. Vernon was an actuary at the consulting firm Watson & Wyatt for 25 years, retiring as a Vice President in 2006. Tr. 1582. At Watson & Wyatt, Mr. Vernon had experience with many large government contracting clients doing ongoing annual evaluations for both pension and post-retirement benefits, including assisting clients with the 1995 amendments to the CAS. Tr. 1582-83. Mr. Vernon has served as an expert witness in trials concerning CAS issues, including the Teledyne case. Tr. 1583. In his retirement, Mr. Vernon has started his own company and written several books to assist private individuals in managing their 401 (K) plans. Tr. 1583. Mr. Vernon also volunteers on committees for the Society of Actuaries and the American Academy of Actuaries. Tr. 1584.
.Mr. England is a Fellow of the Society of Actuaries, an Enrolled Actuary, and a Fellow of the Conference of Consulting Actuaries. He has more than 30 years of experience consulting on the design, funding, accounting compliance, termination, and other issues involving defined benefit, defined contribution, qualified, and non-qualified pension plans. Tr. 1864; DX 241.0002. The court has previously determined that Mr. England may testify regarding his understanding of how the actuarial terms used in the CAS should be applied and offer his opinion regarding the application of the actuarial terms and concepts embodied in the CAS both in this case, see Order, Raytheon v. United States, No. 05-448C, 2009 WL 1373959 (Fed.Cl. May 13, 2009), and in Gen. Motors Corp. v. United States, 78 Fed.Cl. 336, 340 n. 15 (2007).
. With respect to the Greenville Salaried plan and Greenville Hourly plan, the court previously held that the government could not challenge Raytheon’s asset and liability segment closing adjustment calculation, following the government’s judicial admission to the court that those calculations were not in dispute. See Order on Mot. to Strike, Dec. 14, 2010, ECF No. 199.
. While AIS employees were participants in the Raytheon Salaried plan, no pension costs for that plan were charged to any AIS contracts and no pension contributions were made to the plan for any AIS employees. See PX 19.0002 at n. 1. Accordingly, the parties agree that the government’s participation percentage, and hence its share of the Raytheon Salaried plan’s segment closing adjustment, is zero.
. Although decisions of the Armed Services Board of Contract Appeals ("ASBCA”) "are not accorded stare decisis effect,” the court may find the reasoning contained therein persuasive. W. Bay Builders, Inc. v. United States, 85 Fed.Cl. 1, 29 n. 29 (2008) (quoting Universal Restoration, Inc. v. United States, 16 Cl.Ct. 214, 218 (1989)).
. CAS 413 does not provide an explicit definition of "inactive” pension plan participants. CAS 413 defines a "pension plan participant” as follows:
any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit from a pension plan which covers employees of such employer or members of such organization who have satisfied the plan’s participation requirements, or whose beneficiaries are receiving or may be eligible to receive any such benefit.
CAS 413 — 30(a)(l 3). CAS 413 further defines an "active" pension plan participant as "a participant whose employment status with the employer has not been terminated." Id. Accordingly, an "inactive” plan participant is fairly understood to mean a participant whose employment with the employer has been terminated.
. For the AIS segment, the only plan in which Mr. England has raised the inaetives issue and in which such a surplus exists is the Raytheon Salaried plan. However, as previously discussed, the government's participation percentage for the Raytheon Salaried plan in the AIS segment is zero, Tr. 2081 (England), PX 428.0054, and therefore the exclusion of any inactive Raytheon Salaried participants would have no effect on the government share of the AIS segment closing adjustment. Mr. England contends, however, that for the Nonbargaining plan in the Optical segment missing inaetives may account for a large surplus.
. With respect to the AIS segment and alleged PWF segment, in the case of the RTIS plan, because RTIS has a pension deficit, the exclusion of any of inactive RTIS participants operates to the benefit of the government, because any additional inactive participants would increase the amount of the deficit. Tr. 851 (Barry); Tr. 1830 (Vernon); Tr. 2081 (England).
. "In computing the market value of assets for the segment, if the contractor has not already allocated assets to the segment, such an allocation shall be made in accordance with the requirements of paragraphs (c)(5)(i) and (ii) of this subsection.” CAS 413—50(c)(12)(ii).
. CAS 413-50(c)(5) states, in relevant part, as follows;
[T]here shall be an initial allocation of a share in the undivided market value of the assets of the pension plan to th[e] segment, as follows: (i) If the necessary data are readily determinable, the funding agency balance to be allocated to the segment shall be the amount contributed by, or on behalf of, the segment, increased by income received on such assets, and decreased by benefits and • expenses paid from such assets. Likewise, the accumulated value of permitted unfunded accruals to be allocated to the segment shall be the amount of permitted unfunded accruals assigned to the segment, increased by interest imputed to such assets, and decreased by benefits paid from sources other than the funding agency; or
(ii) If the data specified in paragraph (c)(5)(i) of this subsection are not readily determinable for certain prior periods, the market value of the assets of the pension plan shall be allocated to the segment as of the earliest date such data are available. Such allocation shall be based on the ratio of the actuarial accrued liability of the segment to the plan as a whole, determined in a manner consistent with the immediate gain actuarial cost method or methods used to compute pension cost.
Id.
.Under CAS 413 — 50(c)(l 2)(i), "[t]he determination of the actuarial accrued liability shall be made using the accrued benefit cost method. The actuarial assumptions employed shall be consistent with the current and prior long term assumptions used in the measurement of pension costs.”
. This term is not defined in the CAS, but ordinarily "determinable” means "capable of being determined.” See, e.g., Webster's Third New International Dictionary 616 (1986) (defining "determinable" as "capable of being determined, definitely ascertained, or decided upon”).
. The Raytheon Benefits Center is a third party vendor that provides benefits administration for Raytheon. Tr. 798 (Winer).
. Mercer used the same approach to find inac-tives associated with PWF business units. PX 18 at App. A.
. Mercer has been the pension actuary for Ray-theon since the 1940s and maintains a database for each of the Raytheon pension plans for which Mercer performs valuations. Tr. 671 (Winer); Tr. 850 (Barry). Mercer was also the pension actuary for TI, E-Systems, and CTAS, portions of which were combined to form AIS, and Mercer has records of inactive participants from the pension plans sponsored by those companies. Tr. 893-94 (Barry); Tr. 800 (Winer).
.Though terming it "unlikely,” Mr. England acknowledged at trial that for the RTIS plan it was possible that zero inactives was correct, because the RTIS plan as a whole had only 6.6 percent inactives and had only thirty-four active employees in the AIS segment. DX 241.0051; Tr. 1944-45 (England). In other words, he agreed that it was possible that no RTIS plan participant had ever retired or terminated with a benefit from the AIS segment. Id.
. "The calculation of the difference between the market value of the assets and the actuarial accrued liability shall be made as of the date of the event ... that caused the closing of the segment.” Id. If the date of the segment closing "is not readily determinable, or if its use can result in an inequitable calculation, the contracting parties shall agree on an appropriate date.” Id.
. This issue is also potentially relevant in the CAS segment closing adjustment calculation for the alleged PWF segment, which closed on April 21, 2000. Because the Optical segment, which closed on March 1, 2001, closed on the first of the month, no asset estimation technique is necessary to value the assets of the Nonbargaining plan for that segment. With respect to the plans at issue in the Aerospace segment, which closed on June 8, 2001, the court previously held that the government could not challenge Raytheon's asset and liability segment closing adjustment calculation, following the government’s judicial admission to the court that those calculations were not in dispute. See Order on Mot. to Strike, Dec. 14, 2010, ECF No. 199; see. also infra Part III.D.
.Although Mr. England testified that, in his experience, it is possible to request actual asset values on dates other than the first of the month, Tr. 1898-99 (England), Mr. England’s fourth report acknowledges pension trust asset statements are typically only prepared once a month. See DX 161 at 18.
. The S & P 500 Index tracks large U.S. equities and Mr. England testified that it is used routinely as a proxy for the U.S. market. Id.
. ASOP 44 § 3.2.6 provides, in relevant part:
the actuary should consider other known, relevant factors such as the following: ... the characteristics of the asset classes in which the plan is invested (for example, the volatility of the return of each asset class and the córrela*277tion of the return with changes in the value of plan obligations.)
See DX 1.92 at § 3.2.6.
. In response to Mr. England's criticism that Mr. Vernon failed to follow ASOP No. 44 by failing to consider the volatility of the asset classes involved, Mr. Vernon testified that it was unnecessary to examine the volatility of the stocks in Raytheon’s pension trust because he knew the appropriate indices were not available and also knew that volatility in the stocks is likely to be offset by the bonds. Tr. 1734-35 ("[I]t’s a general principle with investing pension assets that you invest in stocks and bonds and the stocks, the volatility in the stocks is somewhat compensated by bonds, and so the overall volatility of a combined portfolio is less than the volatility in stocks by themselves.”).
. This is also an issue with respect to the Optical segment and the Nonbargaining plan in the alleged PWF segment.
. For example, even the DCMA/DCAA Joint Guidance notes that the historical data necessary to trace a segment closing surplus of deficit to specific pension costs "in most, if not all cases is not available,” necessitating the use of estimates and assumptions. DX 114.0003.
. Additionally, in the Teledyne case, the government computed its share of the Teledyne Electronic Systems ("TES”) segment closing adjustment using the TES sales mix over a representative period of years. See Teledyne, 50 Fed.Cl. at 158 ("On August 21, 1996, the [contracting officer ("CO”)] issued a final decision, asserting a government claim against Teledyne for $2,883,165 plus interest from the date of the sale of TES. The CO computed the amount of the government claim by multiplying the amount of the TES pension surplus by TES's percentage of CAS-covered contracts, including both flexibly-priced and firm-fixed-price contracts, during the period of years the CO deemed to be representative of the government’s participation in the TES pension plans.”).
. The Joint Guidance incorporates the equitable adjustment into the government share calculation as follows: first, the portion of the deficit is allocated between the periods before and after the 1995 amendments to CAS 413; second, the government’s share must be separately calculated for each period; and, third, the government’s CAS 413 obligation (in dollars) must be separately calculated for each period (equal to the deficit allocable to the period times the government’s share calculated for the period). See DX 114.0003. The Joint Guidance attempts to com*286press these "three steps into a mathematically equivalent one-step calculation.” Id. Additionally, if the contractor performed contracts before CAS 413 became effective, the Joint Guidance provides that a portion of the surplus or deficit attributable to contributions allocated to pre-CAS 413 contracts must also be excluded from the calculation "by adjusting the denominator of the fraction used to calculate the government's share.” Id. at .0005.
. In this connection, Raytheon argues that it does not matter that the government in its answer to the plaintiff's amended complaint, ECF No. 66, raised as a defense its entitlement to an equitable adjustment under FAR 52.230-3 "to the extent that it would be required to pay a greater amount of segment-closing adjustment with respect to any such portion under Revised CAS 413 than it would under Original CAS 413.” Raytheon contends that the government needed a final written decision from the contracting officer to assert such a claim.
. This provision of the CDA is currently codified at 41 U.S.C. § 7103(a)(3) ("Each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer.”).
. The government’s defense regarding the equitable adjustment is not sufficient to establish jurisdiction; the government’s claim for an equitable adjustment must therefore be dismissed. See M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed.Cir.2010) (holding that the jurisdictional requirements of the CDA apply even when a claim is asserted as a defense); see also Joseph Morton Co., 757 F.2d at 1279-81.
.This figure reflects a $2,903 increase in the RTIS plan pension deficit attributable to the AIS segment from the $82,071 deficit originally calculated by Raytheon. See supra Parts III.A.l., III.A.3.d.
. In his July 2010 expert report, Mr. Vernon explained that because the Nonbargaining plan was overfunded, he initially treated the $55,172,000 contribution as a prepayment credit in his earlier reports. Id.
. CAS 413 — 50(c)(5) states, in relevant part, as follows:
[T]here shall be an initial allocation of a share in the undivided market value of the assets of the pension plan to th[e] segment, as follows:
(i) If the necessary data are readily determinable, the funding agency balance to be allocated to the segment shall be the amount contributed by, or on behalf of, the segment, increased by income received on such assets, and decreased by benefits and expenses paid from such assets. Likewise, the accumulated value of permitted unfunded accruals to be allocated to the segment shall be the amount of permitted unfunded accruals assigned to the segment, increased by interest imputed to such assets, and decreased by benefits paid from sources other than the funding agency; or
(ii) If the data specified in paragraph (c)(5)(i) of this subsection are not readily determinable for certain prior periods, the market value of the assets of the pension plan shall be allocated to the segment as of the earliest date such data are available. Such allocation shall be based on the ratio of the actuarial accrued liability of the segment to the plan as a whole, determined in a manner consistent with the immediate gain actuarial cost method or methods used to compute pension cost. Such assets shall be brought forward as described in paragraph (c)(7) of this subsection.
Id. (emphasis added).
. In describing its calculations in its submission, Mercer mistakenly referenced CAS 413-50(c)(5)(i), but quoted (c)(5)(ii). In addition, Mr. Winer, who prepared Mercer’s calculations, testified that in fact he used (c)(5)(ii) for the contributory participants. Tr. 809, 811 (Winer). This comports with Mercer's statement in its submission that "the portion of plan assets attributable to a given segment (if those assets are not readily determinable for prior periods), is equal to the ratio of the Accrued Liability for the segment over the Accrued Liability for the entire plan ... multiplied by the Market Value of Assets,” see PX 78.0003. This describes the CAS 413 — 50(c)(5)(ii) method.
. The DCAA did, however, “take exception” to Raytheon’s PRB calculation, see PX 110.0002, which, as discussed previously, was the subject of the court's decision in Raytheon I.
. Although the government knew of a potential surplus arising from the Optical segment closing as set forth in the Mercer submission, the surplus was never identified in the contracting officer's decision. In other words, the decision did not include any finding that Raytheon was indebted to the government. See 48 C.F.R. 33.211(a)(4)(vi).
. In his July 2010 report, Mr. Vernon states that the $55,172,000 contribution ''would have been allocable to both Contributory and Noncontributory participants who were in the plan year as of December 1, 1991. However, we do not have data as of that plan year to be able to precisely split those contributions between two types of participants. Thus, we adopted a reasonable alternative approach.” PX 18.0011. Under Mr. Vernon’s approach, all of the $55,172,000 contribution was allocated to the noncontributory participants. PX 18.0011-.0012.
. In his attempt to make the required (c)(5)(i) adjustments, Mr. Vernon did not provide any evidence or data, apart from data for the Non-bargaining plan as a whole, from which to determine the income received on the $55,172,000 "noncontributoiy contribution” of assets or regarding specific benefits and expenses paid from such "noncontributory” assets. See CAS 413(50)(c)(5)(i) ("If the necessary data are readily determinable, the funding agency balance to be allocated to the segment shall be the amount contributed by, or on behalf of, the segment, increased by income received on such assets, and decreased by benefits and expenses paid from such assets.”) (emphasis added). Mr. Vernon calculated the amount of growth and expenditures from the $55,172,000 contribution based on the rate of growth of the Nonbargaining plan assets as a whole. PX 18.0012 ("In other words, we assumed that the $55,172,000 in contributions changed at the same rate as the remainder of the assets.”). Mr. Vernon then subtracted this amount, approximately $60 million (which he attributed to noncontributory participants in the entire plan), from the total asset amount for the Nonbargaining plan (approximately $4 billion) to identify the asset value he attributed to contribu*294tory participants in the entire plan as of the segment closing date. In order to then allocate a share of those amounts for each class of participants to the Optical segment, Mr. Vernon used the same approach as Mercer (using a ratio of segment liabilities to plan liabilities for each class of participant against the plan assets he had found for each class of participant). PX 18.0010 ("Mercer provided updated values for ongoing liabilities which we used to redetermine the allocation of assets between the Contributory and Noneontributory components of the plan, and the assets allocable to Optical at segment closing.”).
. The alternative segment closing adjustment calculation using only the (c)(5)(ii) method prepared by Mercer and submitted to the government found a surplus of $11,438,570. PX 78.0005; Tr. 809, 811 (Winer). The govern-mentis expert, Mr. England, testified that using the (c)(5)(h) method would reduce the deficit proposed by Raytheon (of $8,972,581) by $16,227,882, resulting in a surplus position. Tr. 2024-26 (England).
. In support of its argument, the government’s cites only the Federal Circuit’s decision in Johnson v. All-State Constr., 329 F.3d 848, 853 (Fed.Cir.2003), recognizing the common law right to set-off. See id. ("Both the Supreme Court and this court have made clear that the government’s set-off right can be defeated only by explicit [or contractual] language.”); see also Cecile Indus., 995 F.2d at 1055 (finding the language of the Debt Collection Act "does not contain a clear mandate to abrogate or severely restrict the Government’s common law contractual offset rights”).
. The statute of limitations applicable to a government claim is six years. 41 U.S.C. § 7103(a)(4)(A) (formerly codified at 41 U.S.C. § 605) (”[E]ach claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim.”); see also Raytheon Co. v. United States, 104 Fed.Cl. 327, 330, No. 09-306C, 2012 WL 1072294, at *3 (Fed.Cl. Mar. 22, 2012).
. Under the precedent established in Applied Cos. and Joseph Morton Co., the government's contention that it has an independent right to a set-off in circumstances where the CDA applies is simply incorrect.
. Though, as discussed in Part H.A.2., supra, the fact that a claim for a pension surplus or a pension deficit determined through a CAS 413 segment closing adjustment is a claim “relating to a contract” is not determinative of whether that same claim is contract-specific. Such a claim may, as provided for in CAS 413-50(c)(12)(vi)-(vii), be brought through any CAS-covered contract open at the time of segment closing. As the Federal Circuit held in Gates:
CAS 413 is unusual in that it does not require an analysis of individual contracts, but rather ... affects all of the contractor’s CAS-covered contracts.... The current period adjustment provided for under CAS 413, by its terms, represents an adjustment of previously-determined pension costs for the segment as a whole, and does not require an impact analysis of individual contracts within the segment. This adjustment is not contract specific, nor does it involve a cost adjustment of any individual contract.
Gates, 584 F.3d at 1069, 1069 n. 8. Thus, consistent with the court's earlier decision that Ray-theon's CAS 413 claims are not barred by virtue of its novation of certain specific CAS-covered contracts, Raytheon's CAS 413 claims are brought pursuant to the CDA through other of its CAS-covered contacts that were not novated.
.This provision of the CDA is currently codified at 41 U.S.C. § 7103(a)(3) ("Each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer.”).'
. This figure reflected both a $9,261,669 pension deficit and a $4,554,713 PRB deficit. PX 25.
. The DCAA issued an audit report on April 18, 2001, finding Raytheon in noncompliance with CAS 413-50(c)(12) for not having submitted its segment closing calculation for the PWF segment. PX 64. After Raytheon submitted its segment closing calculation, the contracting officer asked the CIPR Center and the DCAA to review the submission, and both agencies issued reports. See PX 120; PX 267. Prior to trial, the reviewing agencies did not raise the issue that PWF might not be a segment within the meaning of the CAS.
.
The Government’s share of the adjustment amount determined for a segment shall be the product of the adjustment amount and a fraction. ... The numerator of such fraction shall be the sum of the pension plan costs allocated to all contracts and subcontracts (including Foreign Military Sales) subject to this Standard during a period of years representative of the Government's participation in the pension plan. The denominator of such fraction shall be the total pension costs assigned to cost accounting periods during those same years.
CAS 413-50(c)(12)(vi).
. The government also correctly observes that Raytheon itself recognized that PWF "had no contracts of its own and no sales records to determine the amount of the Government's share.” PX 28.0003. In its certified claim, and at trial, it was admitted that Raytheon had no evidence, beyond an e-mail documenting a phone call from the Raytheon Director of Finance Shared Services, an individual who did not testify at trial, "estimating] that government participation would have been 95% plus.” PX 27; PX 28.0003. While PWF was apparently responsible for manufacturing printed circuit boards and making intra-company transfers of those boards to other parts of Raytheon, Raytheon has produced no evidence on which to base a determination of the government’s share of any pension costs associated with that work. Accordingly, even if the court were to decide that PWF was a segment requiring a CAS 413 segment closing adjustment, Raytheon could not support its government share calculations. Therefore, its claim for the government’s participation in a share of any pension deficit that may have existed in the PWF segment must also fail for this reason.
. The contracting officer also noted that the government also questioned Raytheon's reliance on sales data to determine the government share, stating as follows:
Although a moot point because the Government has no intention of sharing in this pension deficit adjustment, the Government sees nothing in CAS 413-60(c)(9) that allows the use of CAS-covered sales as a proxy for pension plan costs in determining the amount of the Government’s share.
Id.
. As explained by the court in General Motors Corp., 66 Fed.Cl. at 159, Raytheon will be required to apply the judgment to the pension deficits identified above to the extent sufficient contributions have not been made by Raytheon in the years following the AIS and Aerospace segment closings to cover these pension deficits. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218274/ | OPINION AND ORDER
1
WOLSKI, Judge.
This case involves a procurement award for a design-build contract solicited by the Hurricane Protection Office (“HPO”) of the United States Army Corps of Engineers (“Corps” or “Agency”). The Corps initially awarded the contract to Plaintiff CBY Design Builders (“CBY”), which is a joint venture of Brasfield & Gome, L.L.C., CDM Constructors Inc., and W.G. Yates and Sons Construction Co. On November 4, 2011, CBY *309filed a bid protest in our court challenging a decision of the Corps to follow recommendations of the Government Accountability Office (“GAO”) and to implement corrective action in accordance with a GAO decision sustaining the protests of unsuccessful offer-ors. This corrective action entailed a conflict-of-interest investigation, a stay of the award, amendment of the solicitation, and a resolicitation of proposals for a new evaluation and award. Bechtel Infrastructure Group (“Bechtel”) and PCCP Constructors, JV (“PCCP”), the protesters before GAO, have intervened in this case to defend the Corps’s decision to take corrective action. Plaintiff CBY has moved for judgment on the administrative record, arguing that the GAO decision was arbitrary and capricious, and that therefore the Corps also acted arbitrarily and capriciously by following the GAO’s recommendation. CBY seeks permanent in-junctive relief to prevent the Corps from proceeding with the corrective action, as well as an order directing the Corps to proceed with performance under the contract originally awarded to CBY. The government has moved to dismiss the ease, challenging the Court’s subject matter jurisdiction and, in the alternative, cross-moved for judgment on the administrative record. The intervenors also have cross-moved for judgment on the administrative record.
For the reasons that follow, the Court has determined that it lacks subject matter jurisdiction over CBY’s challenge to the conflict-of-interest investigation, due to mootness and a lack of standing; and that the GAO’s recommendation concerning the evaluation of CBY’s foundation design provided a rational basis for the corrective action taken by the Corps. Thus, defendant’s and intervenors’ cross-motions for judgment on the administrative record are GRANTED and plaintiffs motion for judgment on the administrative record is DENIED.
I. BACKGROUND
A. The Solicitation
The United States Army Corps of Engineers, Hurricane Protection Office, issued Solicitation No. W912P8-09-R-0013 on April 30, 2010. Admin. R. (“AR”), Tab 3 at 90. The solicitation sought proposals for the construction of a system of Permanent Canal Closures and Pumps to aid in the protection of New Orleans, Louisiana from future flood damage. AR, Tab 3 at 90; AR, Tab 71 at 17447. During Hurricane Katrina, water from Lake Pontehartrain breached the outfall canals at 17th Street and London Avenue, flooding downtown New Orleans. AR, Tab 71 at 17447. Afterward, the Corps installed an interim structure of canal closures and pumps. Id. The contract at issue in this litigation is for the design and construction of a permanent replacement for the interim structures on three outfall canals into Lake Pontehartrain. Id. The primary goals of the Permanent Canal Closures and Pumps project (“Permanent Canal Project”)2 included achieving a 100-year level of storm-surge risk reduction and allowing rainwater to be evacuated from the city. AR, Tab 3 at 92.
The solicitation established a two-phase source selection for a performance-based, firm-fixed price, design-build contract. AR, Tab 3 at 94; AR, Tab 4 at 776. In the first phase, offerors were evaluated based on their Experience, Technical Approach, and Past Performance, all of which were considered approximately equal in importance during Phase I. AR, Tab 3 at 100-01. On June 1, 2010, the Corps received seven timely Phase I proposals. AR, Tab 11 at 10469. Of the seven proposals received, the Corps selected the five most qualified firms to participate in Phase II. Id.; see also AR, Tab 1 at 3. The five firms selected for Phase II were CBY, Bechtel, PCCP Constructors, [Offeror A], and [Offeror B]. AR, Tab 8 at 10315; AR, Tab 11 at 10469.
1. Phase II Evaluation Criteria
On June 30, 2010, the Corps issued Amendment 4 to the solicitation, which initiated the beginning of Phase II of the procurement process. AR, Tab 4 at 252-53. *310After one-on-one discussions with each of the five offerors to receive feedback on the RFP requirements, the Corps then issued Amendment 5 on August 12, 2010, which laid out the Phase II requirements and evaluation criteria, and incorporated feedback from the of-ferors from the one-on-one sessions. AR, Tab 1 at 4; AR, Tab 4 at 709-10. The RFP laid out five main evaluation factors for Phase II. Factor 1, Technical Approach, had five subfaetors: pump station operation, operation and maintenance, project execution approach, aesthetics, and adaptability. AR, Tab 4 at 759-64, 776-78. Factor 2, Management Capability, had two subfaetors: design and construction management, and key personnel and organization. Id. at 764-66, 778. Factor 3 was the Socio-Economic — Small Business Participation Plan, and was to be combined with Factor 3 from Phase I, Past Performance. Id. at 767-68, 776, 778. Factor 4 was for Price, which was to be “evaluated for reasonableness” under FAR Section 15.404-1. Id. at 769, 778.
The solicitation ranked Factor 1 as the most important factor, and listed its five subfactors in descending order of importance. AR, Tab 4 at 758, 776. Within Factor 2, the two subfactors were “approximately equal in importance.” Id. The small business participation plan in Factor 3 was “approximately equal in importance” to Factor 3 from Phase I, and when combined they were “less important” than Factor 2 in Phase II. Id. The non-price factors when combined were “significantly more important” than the fourth factor for price. Id.
The RFP instructed offerors to submit their proposals in four volumes. AR, Tab 4 at 757. Volume I was to contain the offeror’s technical proposal; Volume II would contain the offeror’s small business participation plan; Volume III would contain price information and pro forma requirements; and Volume IV was to be submitted as an attachment containing supporting documentation that would serve as an appendix to Volumes I and III. Id. at 757-71. The RFP specifically listed Volume IV as “Attachment A” and described it as “Not Evaluated.” Id. at 757. When explaining the instructions for submitting Volume I, the RFP stated that offerors should provide “a narrative that summarizes their proposed technical solution,” and that the drawings and technical data contained in Volume IV “can be referenced as required.” Id. at 759, 760. The supporting documentation in Volume IV was to include the “design information for each PCCP and any additional information that is needed to clearly illustrate the scope and approach of their proposal.” Id. at 771. The items in Volume IV would be used “as supporting documentation during the evaluation, as referenced by the proposal.” Id.
The RFP identified five adjectival ratings that evaluators would use to rate Factors 1 and 2. AR, Tab 4 at 779. The possible ratings were “Excellent,” “Good,” “Acceptable,” “Marginal,” and “Unacceptable.” Id. “Excellent” described proposals that “will clearly result in the superior attainment of all requirements and objectives”; included “numerous advantageous characteristics of substance and essentially no disadvantages”; contained solutions that are “exceptionally clear and precise, fully supported, and demonstrate a clear understanding of the requirements”; and presented a “very low” risk of unsuccessful performance. Id. “Good” was the rating for proposals that demonstrated “a sound approach which is expected to meet all requirements and objectives”; had “few relatively minor disadvantages”; were expected to result in “satisfactory performance”; demonstrated “an understanding of the requirements”; and presented a “low” risk of unsuccessful performance. Id. Proposals rated “Acceptable” must demonstrate “an approach which is capable of meeting all requirements and objectives,” but contain “both advantageous and disadvantageous characteristics of substance, where the advantages are not outweighed by the disadvantages.” Id. Proposals deemed acceptable still demonstrated “a general understanding of the requirements,” had advantages and disadvantages that collectively were expected to result in “acceptable performance,” and posed a “moderate” risk of unsuccessful performance. Id. “Marginal” proposals presented an approach that “may not be capable of meeting all requirements and objectives,” had “disadvantages of substance” which outweighed advantages, *311were “not likely to result in satisfactory performance,” and presented a “high” risk of unsuccessful performance. Id. Finally, “[ujnaceeptable” proposals would “very likely not be capable of meeting all requirements and objectives,” had “numerous disadvantages of substance,” would not result in satisfactory performance, and presented a “very high” level of risk that performance would be unsuccessful. Id.
The adjectival ratings for Factor 3 were “Outstanding,” “Good,” “Acceptable,” “Marginal,” “Susceptible to Being Made Acceptable,” and “Unacceptable.” AR, Tab 4 at 780-81. “Outstanding” was the rating used for proposals that “achieve or nearly achieve almost all RFP objectives,” had goals that were “highly realistic,” presented an “extensive and compelling rationale” for all proposed goals, and had strengths which “far outweigh weaknesses.” Id. at 780. The “Good” rating was given to proposals that would achieve or nearly achieve most RFP objectives, had “realistic” goals, provided a “substantive rationale” for almost all proposed goals, and had strengths that outweighed weaknesses. Id. “Acceptable” proposals had “meaningful” goals to achieve almost all RFP objectives, provided a “reasonable” rationale for the majority of proposed goals, and whose strengths and weaknesses were “offsetting.” Id. “Marginal” proposals presented meaningful goals for several RFP objectives and had goals that “may not be realistic,” gave a “limited rationale” for proposed goals, and had weaknesses which outweighed their strengths. Id. at 781. The rating of “Susceptible to Being Made Acceptable” was applied to proposals which could not be rated marginal because of an error, but which were capable of being corrected without a major revision. Id. “Unacceptable” proposals for Factor 3 failed to propose meaningful goals for almost all RFP objectives or failed to satisfy RFP objectives, presented goals that were “not realistic,” gave “little or no meaningful rationale” for proposed goals, and had weaknesses which “far” outweighed any strengths. Id.
No adjectival ratings were given for Factor 4, but the RFP reiterated that price would be evaluated for reasonableness under FAR Section 15.404-1. AR, Tab 4 at 769, 781. The RFP stated that a “[f]ormal [s]ource [s]election process will be conducted in accordance with FAR Part 15.101 and the Army Source Selection Manual.” AR, Tab 4 at 776. Evaluations would be made using “the Best Value Continuum — Tradeoff process prescribed by Federal Acquisition Regulation (FAR) Part 15.101.” Id. The Corps stated its intention of selecting an offeror for award without discussions whose proposal “conforms to the solicitation requirements and is determined to be the Best Value to the [g]overnment.” Id.
2. Pricing Language
One of the issues in this case is the use of the RFP’s language regarding the pricing requirements. Prior to issuing the solicitation, the Corps issued the Synopsis to the Solicitation in March 2010 and modified it on April 23, 2010. AR, Tab 78 at 17533. The Synopsis described the build-to-budget concept as setting a budget that was a “ceiling amount,” stating:
... this Design-Build project will have a build to budget amount. The Government’s intent is to maximize the best value obtainable for that ceiling amount. In selecting the winning offer in Phase II, technical non-cost factors when combined are significantly more important than eosV price. However, the contract award for design and construction shall not exceed the ceiling amount. The selection process will be structured such that offers that optimize technical/management solutions within the contract budget amount will be viewed more favorably than offers that attempt to trade off performance in favor of lower prices.
AR, Tab 78 at 17534.3
The initial solicitation contained a Preamble which stated that the government’s con*312tract budget for the design and construction of the Permanent Canal Project was $650,000,000. AR, Tab 3 at 94. According to the RFP,
[ojffers that exceed the contract budget will be eliminated from the competition without further consideration. However, the Government desires to maximize the best value obtainable for that amount. Therefore, Offerors should strive to propose the best teehnical/management solution within that budget amount. Technical/management approaches that seek to trade off performance in favor of costs below the contract budget amount are not desired and will not be rewarded.
AR, Tab 3 at 94-95; see also id. at 112. This language remained unchanged in Amendment 5, which issued the proposal submission instructions for Phase II in August, 2010. See AR, Tab 4 at 715. In response to some offerors’ concerns that they could not submit proposals within the $650 million budget, the Corps issued Amendment 8 on September 17, 2010, increasing the contract budget amount to $700 million. AR, Tab 4 at 1243, 1245. As stated above in the RFP, offers that exceeded the budget amount — now $700 million — would be eliminated. Id. at 715.
Amendment 5 to the solicitation contained a section entitled “Questions and Answers” in which the agency’s response to offerors’ questions included a further description of the pricing approach. The introduction to the Question and Answer section of the amendment explained that the RFP “was developed to model the best value technique known as ‘Build to Budget.’ ” AR, Tab 4 at 1223. According to the Design Build Institute of America (DBIA), the Build to Budget technique is “a method to help owners ensure proposed prices are affordable while further enhancing the focus on technical excellence instead of proposed initial cost.” Id. This explanation continued with the following:
In this competition, the Government has stipulated the budgeted amount available. In this competition, we expect our solutions to utilize the full budget available and not focus on providing a low bid design. Attempts to offer lower priced technical solutions may be determined non-competitive and result in elimination accordingly. Offerors shall maximize the capability of the [Permanent Canal Project] within the available budget. That is the intent of this acquisition. DBIA recognizes that Government acquisitions must use price as a factor. However, the Government has stated that our non-cost factors are significantly more important than price in this competition.
AR, Tab 4 at 1223. This language is consistent with the RFP’s instructions that said offerors “should strive to propose the best technical/management solution within that budget amount,” and the RFP warnings that proposals which “seek to trade off performance in favor of costs below the contract budget amount are not desired.” AR, Tab 4 at 758.
In further questions and answers contained in Amendment 10, an offeror expressed concern that even though the budget had been increased to $700 million, the Corps still had not “properly addressed” what actions an offeror could take if its cost estimate exceeded the budget. AR, Tab 4 at 1412. The offeror thought it inequitable that the RFP provided a means for an offeror whose cost was less than the budget to simply increase its cost estimate until it equaled the stated budget amount (by including better-ments) but did not address what an offeror could do if its estimate exceeded the budget amount. Id. The Corps’s response to this query was simply that “[t]he Offeror’s proposal must comply with the RFP requirements.” Id. During discussions with Bechtel on July 15,2010, the contracting officer allegedly stated in an answer to a question that proposals priced at less than the budget amount would be favorably received. AR, Tab 44 at 15138 (Lewis Deck). After a recess, the contracting officer purportedly returned to clarify that the comment had been a mistake, and that offerors should focus more on providing the best possible value *313within the budget amount rather than on providing a lower price. Id.
B. Evaluation of Proposals and Award of Contract
1. SSEB Evaluations
On November 15, 2010, the Corps received the initial Phase II proposals from all five offerors. AR, Tab 1 at 5. Under the Source Selection Plan, the Source Selection Evaluation Board (“SSEB”) was to consist of a chairperson and a team of evaluators and advisors if necessary. AR, Tab 17 at 11074. For Phase II, the SSEB was subdivided into four different teams of evaluators — the technical approach evaluators, the management capability evaluators, the socio-economic utilization evaluators, and a price team. AR, Tab 11 at 10470-71; AR, Tab 21 at 12907, 12944. The SSEB evaluators for each factor convened for several weeks to evaluate each proposal and, based on the evaluations, the contracting officer established the competitive range on December 21, 2010, which included all five offerors. AR, Tab 1 at 5; AR, Tab 11 at 10475. The contracting officer determined it was in the government’s best interest in order to achieve a “best value” outcome to enter into discussions with all five offerors, invite them to give oral presentations, and then to allow them to submit revised proposals. AR, Tab 11 at 10475.
The initial SSEB consensus report on December 17,2010 gave all five offerors a “Marginal” rating for the first sub-factor in Factor 1, the pump station operation. AR, Tab 8 at 10325; AR, Tab 11 at 10475.4 For the second sub-factor in Factor 1, operation and maintenance, Bechtel, [Offeror A], and [Of-feror B] received “Marginal” ratings; PCCP received an “Acceptable” rating; and CBY received a rating of “Good.” Id. For Factor 1, sub-factor 3 for project execution approach, CBY, [Offeror A], and [Offeror B] all received “Marginal” ratings, and both Bechtel and PCCP received higher ratings of “Acceptable.” Id. For Factor 1, sub-factor 4 for aesthetics, Bechtel, PCCP, and [Offeror B] received “Acceptable” ratings, while CBY and [Offeror A] received the higher “Good” rating. Id. For Factor 1, sub-factor 5 for adaptability, CBY, [Offeror A], and [Offeror B] received “Marginal” ratings; PCCP received a rating of “Acceptable”; and Bechtel received the highest rating of “Good.” Id. In Factor 2, subfaetor 1 for design and construction management, CBY and [Offeror A] received “Acceptable” ratings, and Bechtel, PCCP, and [Offeror B] received the higher rating of “Good.” Id. In the second sub-factor of Factor 2, for key personnel and organization, PCCP received only a “Marginal” rating; Bechtel, CBY, and [Offeror A] received “Acceptable” ratings; and [Offeror B] received the higher rating of “Good.” Id. For Factor 3, Bechtel received an “Acceptable” rating, PCCP received a rating of “Good,” and CBY, [Offeror A], and [Offeror B] all received an “Outstanding” rating. Id.
In the initial SSEB report, all five offerors were rated as offering a “Low Risk” in the past performance category carried over from Phase I. AR, Tab 8 at 10325; AR, Tab 11 at 10475. All of the offerors except for CBY proposed exactly $700 million in their initial Phase II proposals. Id. CBY, however, offered a lower price of $674,998,555. Id.
After the initial SSEB evaluation, all five offerors were invited to give two-hour oral presentations over January 18-20, 2011, in order to present an overview of their proposals. AR, Tab 1 at 5; AR, Tab 11 at 10475-76. After the presentations, each offeror received a handout with a bullet-point list of the SSEB’s conclusions regarding its weaknesses, significant weaknesses, and deficiencies, and requesting clarifications for all non-cost factors. AR, Tab 1 at 5; AR, Tab 11 at 10476. Offerors then were allowed to ask questions and discuss any findings which were unclear, and the evaluators asked questions about the offerors’ presentations. AR, Tab 11 at 10476. On January 22, 2011, each offeror received a letter containing a more detailed description of the “non-cost feedback” from the initial evaluation, price feedback, and a transcript of the question and answer session following the presentations. Id. After receiving the feedback letter, offer-ors could call the contracting officer if they needed additional clarification of any of the *314findings. Id. On February 7, 2011, the contracting officer closed discussions, and the final proposal revisions for all offerors were submitted on February 14, 2011. Id.
When the SSEB reviewed the revised proposals, the evaluation teams rated each factor and sub-factor a second time using the same adjectival ratings as before. For Factor 1, sub-factor 1, evaluators rated PCCP and [Offeror B] as “Marginal” for their revised proposals; and Bechtel, CBY, and [Of-feror A] received a “Good” rating. AR, Tab 8 at 10326; AR, Tab 11 at 10477. In sub-factor 2, all five offerors received a “Good” rating. AR, Tab 8 at 10326. For Factor 1, subfactor 3, Bechtel and [Offeror B] received an “Acceptable” rating; and CBY, [Offeror A], and PCCP all received a “Good” rating. Id. For sub-factor 4, Bechtel received an “Acceptable” rating, and the other four offer-ors received “Good.” Id. For Factor 1, sub-factor 5, Bechtel received the highest rating of “Excellent,” and all the others received an “Acceptable” rating. Id. For Factor 2, sub-factor 1, [Offeror B] received a “Marginal” rating, [Offeror A] received an “Acceptable” rating, and Bechtel, CBY, and PCCP each received a “Good” rating. Id. For Factor 2, sub-factor 2, CBY and [Offeror B] received a “Good” rating, while Bechtel, [Offeror A], and PCCP each received the lower “Acceptable” rating. Id. All five offerors received an “Outstanding” rating for Factor 3, and they each retained the “Low Risk” rating on Past Performance from the previous evaluation. AR, Tab 8 at 10326.
Regarding the price factor, the price evaluation team determined whether the proposed prices were fair and reasonable, and — finding “there was adequate price competition among the offerors” — the evaluators used FAR Section 15.404.1(b) price analysis procedures. AR, Tab 21 at 12908; AR, Tab 22 at 13037. Accordingly, the agency developed an Independent Government Estimate (“IGE”) based on each offeror’s proposed solution, and evaluated the prices in comparison with the respective IGEs of the other proposals to determine reasonableness. AR, Tab 21 at 12908; AR, Tab 22 at 13037. As part of both the initial and final evaluations, the price team conducted a summary analysis of the price proposals after reviewing each proposal both independently and as a team “to determine pricing anomalies within each proposal.” AR, Tab 22 at 12968, 13037. The summary included the analysis for each contractor and charts comparing the proposals. See AR, Tab 22 at 12967-13024 (Price Evaluation Team Report, December 16, 2010); AR, Tab 22 at 13036-78 (Price Evaluation Team Report, February 25, 2011).5
In the revised proposals, Bechtel and PCCP were the only offerors who still proposed a price of exactly $700 million. AR, Tab 8 at 10326. CBY maintained its initial price proposal of $674,998,555. Id. [Offeror A], however, proposed $766,952,258, which the price team recognized “exceedfed] the $700M ceiling” by $67 million. AR, Tab 22 at 13057; see also id. at 13053; AR, Tab 8 at 10326.6 For [Offeror B], the price team found that “a minor math error” resulted in a total price that was slightly higher than the budget amount. AR, Tab 21 at 12964; AR, Tab 22 at 13066. [Offeror B]’s proposal also assumed that it would meet the $700 million limit by a [XXX] reduction in costs due to [XXX] that would occur after award — which meant that [Offeror B] was actually proposing a cost of [XXX], thus exceeding the cost ceiling.7 AR, Tab 8 at 10330; AR, Tab 11 at 10477, 10485; AR, Tab 21 at 12964; see also AR, Tab 22 at 13066-72. Based on the price team’s report, the contracting officer deter*315mined that the “overall prices” offered by CBY, Bechtel, and PCCP were “fair and reasonable,” but that [Offeror B]’s and [Of-feror A]’s proposals exceeded the budget amount. AR, Tab 21 at 12965.8
The revised proposals, as well as the SSEB’s initial findings, were then reviewed by the Source Selection Advisory Council (“SSAC”) to identify discriminating characteristics in each factor and sub-factor among the proposals in order to assist the Source Selection Authority (“SSA”) in the final decision. AR, Tab 1 at 6. According to the Source Selection Plan, the SSAC was to monitor the SSEB and “provide guidance as necessary”; to review the evaluations of the SSEB in order to “validate the strengths, weaknesses and deficiencies prior to or concurrent with the SSA approving a competitive range determination”; and to identify discriminatory factors among offerors to aid the SSA in the selection process. AR, Tab 17 at 11073. On March 3, 2011, the SSAC’s Memorandum for Record summarized the “discriminators” it found in each sub-factor for CBY, Bechtel, and PCCP, and gave its recommendation on which of the three proposals it deemed to be the strongest, taking the “discriminators” into account.9 AR, Tab 13 at 10530-36. In Factor 1, sub-factor 1, the SSAC found CBYs proposal to be the strongest. Id. at 10531. For sub-factor 2 in Factor 1, the SSAC also found CBYs proposal to be the strongest, id. at 10532, and for sub-factor 3, the SSAC found PCCP’s proposal to be the strongest. Id. at 10533. For sub-factor 4, CBYs proposal was ranked the strongest, id. at 10533-34, but for sub-factor 5 the SSAC found Bechtel’s proposal to be the strongest. Id. at 10534. For Factor 2, the SSAC found all three proposals to be equal in the first sub-factor, but for the second sub-factor the SSAC considered CBYs to be the strongest proposal. AR, Tab 13 at 10535. For both parts of Factor 3, the socio-economic plan and the past performance, the SSAC found the three proposals to be equal. Id. at 10536. Regarding price, the SSAC noted that Bechtel and PCCP submitted proposals at the “$700,000,-000 ceiling” and identified CBY’s price as $674,998,555. Id. The SSAC concluded that “[a]ll prices were found fair and reasonable,” but did not ascribe any particular significance to CBY’s price being lower than that of the other two offerors. See id. On March 10, 2011, the SSAC provided a summary of its findings in a brief to the SSA. AR, Tab 1 at 6; see AR, Tab 12 at 10515-29.
At the SSEB’s consensus meeting on April 7, 2011, the SSEB gave each offeror a final overall rating for each factor. AR, Tab 8 at 10326; AR, Tab 11 at 10477. In the Technical Approach category, Bechtel, CBY, and [Offeror A] each received an overall rating of “Good,” while PCCP and [Offeror B] received an overall rating of “Marginal.” Id. For the second factor of Management Capability, Bechtel, [Offeror A], and PCCP each received an overall rating of “Acceptable,” [Offeror B] received a “Marginal” rating, and CBY received an overall rating of “Good.” Id. In the Socio-Economic and Small Business Participation plan factor, all five offerors received an overall rating of “Outstanding.” Id. The past performance and price categories remained unchanged. Id. The SSEB also wrote summaries of the final evaluations for each of the five offerors. See AR, Tab 8 at 10327-30; AR, Tab 9 at 10384-10490.
2. Source Selection Decision
This procurement was also subjected to agency-mandated peer review. AR, Tab 1 at 7. Both a Solicitation Review Board (“SRB”) and a Contract Review Board (“CRB”) reviewed the acquisition and made comments. Id.; AR, Tab 17 at 11080. The CRB review began on March 21, 2011, to ensure that meaningful discussions were held and “that the selection was made in accordance with *316the solicitation procedures, FAR, its supplements, and Corps policy.” AR, Tab 1 at 7. On April 8, 2011, the SSEB Chairman briefed the SSA on all the CRB findings and resolutions. Id.; see also AR, Tab 12 at 10493-10529. The SSA, [Ms. W], then made the final source selection decision and concluded that CBY’s proposal presented the best value to the government. AR, Tab 11 at 10478. Accordingly, on April 13, 2011, the Corps awarded the contract to CBY for $675 million.10 AR, Tab 5 at 1425.
The SSA concluded that CBY’s design included “many advantages,” and reflected “a very good, low risk, sound approach for pump station operation ... expected to result in satisfactory performance.” AR, Tab 11 at 10478. Moreover, CBY’s overall system was designed with “proper consideration of the operation and maintenance requirements as defined in the RFP.” Id. For the other factors and sub-factors, the SSA found overall a low risk of unsuccessful performance and a sound approach expected to meet all requirements and objectives. Id. at 10478-80. Regarding price, the SSA noted that the price analysis of all offerors “identified some minor level of imbalance,” but that the contracting officer determined that any lack of balance in CBY’s pricing “d[id] not pose an unacceptable risk to the [government.” Id. at 10480.
The SSA summarized the agency’s evaluations for the other four offerors, but explained that [Offeror B] and [Offeror A] had to be eliminated because they each proposed a price that “exceeds the available funding.” AR, Tab 11 at 10492.11 In her conclusion, the SSA found that CBY’s proposal represented “the strongest technical approach in this competition,” id. at 10490, and listed CBY’s technical strengths in Factors 1 and 2 which she found particularly appealing. See id. at 10490-91. The SSA also mentioned that “[tjhere is a price premium of approximately $25M in the offers from PCCP JV and Bechtel in comparison to CBY.” Id. at 10492. The SSA further concluded that PCCP had “significant weaknesses identified in the most important factor, Factor 1 Sub-factor 1,” and that PCCP’s strengths did not support a $25M premium. Id. The SSA noted that Bechtel offered, several “excellent strengths” but that those features were in the “least important factor” and “do not support a $25M premium.” Id.
3. Debriefing
On April 13, 2011, the Corps notified CBY of its award, AR, Tab 5 at 1425, and sent out notices to the four unsuccessful offerors informing them that the contract had been awarded to CBY and explaining the post-award debriefing process. See AR, Tab 61 at 17084-17091. Both Bechtel and PCCP requested debriefings, which were provided on April 21, 2011. See AR, Tab 62 at 17092; AR, Tab 64 at 17156. The offerors were given copies of the Source Selection Decision Document with the confidential information of other offerors redacted, except for CBY’s overall ratings and the SSA’s discussion of CBY’s strengths in the conclusion. See AR, Tab 62 at 17098-17123; AR, Tab 64 at 17162-17187. During the face-to-face debriefing, the contracting officer, along with [Mr. X], the technical approach team leader, and [Mr. Y], the management capability team leader, gave feedback from the evaluation teams. AR, Tab 62 at 17098; AR, Tab 64 at 17162. Mister Black explained the source selection process, discussed the offeror’s evaluation, and responded to the offeror’s questions — including written questions that *317had been submitted prior to the debriefing. AR, Tab 62 at 17098; AR, Tab 64 at 17162.
C. Alleged Organizational Conflict of Interest
On February 14, 2011, before the Corps awarded the contract, Bechtel had raised an organizational conflict of interest (“OCI”) concern regarding Richmond Kendrick, an employee of CDM (one of the partners in the CBY joint venture), who had previously worked for the agency on the Permanent Canal Project. AR, Tab 1 at 5; AR, Tab 15 at 10559. Bechtel project manager Michael Lewis told the contracting officer that if CBY were to win the competition, Bechtel would protest based on CDM’s hiring of Mr. Kendrick. AR, Tab 1 at 5; AR, Tab 15 at 10559. Richmond Kendrick had been the Chief of Program Execution for the Hurricane Protection Office of the Corps. AR, Tab 15 at 10557. Mister Kendrick was responsible for all HPO projects, and he reported directly to Colonel Robert Sinkler, the HPO Commander. Id. Mister Kendrick’s role in the HPO involved “oversight and direction of the management processes of the organization; development and execution of project agreements; oversight and direction of program and project managers to establish broad mission requirements and objectives; review of program status; planning for program accomplishment, and providing guidance on manpower and program policy.” Id. While Mr. Kendrick was aware of requirements and planning for the Permanent Canal Project solicitation and evaluation criteria for the Phase I process, he did not assist in preparing the RFP requirements. Id. Mister Kendrick did not attend intérnal Permanent Canal Project meetings after June 23, 2010, and he retired on August 31, 2010, shortly after Phase II was initiated. Id. at 10558. After retiring, Mr. Kendrick accepted a position as a project manager with CDM, a partner in the CBY joint venture. Id.
1. First OCI Investigation
In response to Bechtel’s concern, the Corps conducted an OCI investigation prior to awarding the contract. AR, Tab 15 at 10559. On March 24, 2011, Contracting Officer Timothy Black reported his conclusions that Mr. Kendrick’s employment by CDM did not give CBY an unfair competitive advantage, nor give it unequal access to information, and that “[t]here is no reason to believe any type of OCI exists.” AR, Tab 15 at 10561. More specifically, Mr. Black determined that Mr. Kendrick had had no involvement with the Permanent Canal Project from June, 2010 until his retirement in August, 2010. Id. at 10558. Phase II of the procurement began on June 30, 2010, and the final solicitation amendment prior to submission of Phase II proposals was issued on October 15, 2010, which indicated that Mr. Kendrick had not been involved in developing Phase II of the procurement. Id. Mister Black also determined that Mr. Kendrick did not participate in the evaluations of any Permanent Canal Project offerors, that all Phase II evaluations occurred after Mr. Kendrick had left federal service, and that the evaluations were performed by outside individuals wlm did not know Mr. Kendrick. Id. at 10560, 10561.
Moreover, the contracting officer found that Mr. Kendrick sought and received specific written guidance from an agency ethics counselor, before he left the employ of the Corps, concerning restrictions on his post-employment activities. AR, Tab 15 at 10558. The written guidance prohibited him from representing CDM/CBY before the Corps, from communicating to the Corps on CBY’s behalf, and from disclosing proprietary information or source selection information.12 Id. The contracting officer further investigated Mr. Kendrick’s role at CBY in the procurement process, conducted interviews with agency personnel involved in the project, consulted with technical advisors and counsel, and reviewed project documents along with FAR provisions and ease law. Id. at 10559. Based on this investigation, Mr. Black concluded that despite a possible appearance of a conflict regarding unequal access to information, no actual conflict existed, as he found no facts suggesting that Mr. *318Kendrick had access to non-public information unavailable to other competitors. Id. at 10560-61. Ultimately, Mr. Black determined that Bechtel’s concern about an OCI “remains a mere allegation or suspicion for which I have found no actual factual basis.” Id. at 10561.
2. Second OCI Investigation
On April 25, 2011, after the contract award and debriefing, PCCP Constructors submitted a letter to the contracting officer that provided information regarding a possible violation of the Procurement Integrity Act (“PIA”), 41 U.S.C. §§ 2102-07 (Supp. IV 2011), again in reference to Mr. Kendrick’s involvement with the procurement. AR, Tab 15 at 10584-85; see also id. at 10565; AR, Tab 1 at 8. The next day, PCCP Constructors filed a GAO protest of the CBY award, which also contained allegations relating to possible PIA violations. See AR, Tab 15 at 10566. In response, the contracting officer “ordered a review” of his findings from the previous OCI investigation in March, and conducted a second investigation into Mr. Kendrick’s role in the Permanent Canal Project procurement. Id. On May 23, 2011, the contracting officer again concluded that Mr. Kendrick did not have access to non-public, source selection information and had no inside knowledge that unfairly benefited CBY. Id. at 10574-75. Mister Black determined that the alleged PIA violations which PCCP reported “had no impact on the selection of CBY Design Builders for award of the [Permanent Canal Project] contract,” and stated that he “found no evidence supporting” PCCP’s allegations. Id.
PCCP’s letter to the contracting officer had alleged that Mr. Kendrick had access to source selection information before he worked for CDM, which “likely included” information regarding Phase I proposals. AR, Tab 15 at 10565. The letter also alleged that CBY’s proposal price of $25 million below the budget amount in the RFP strongly indicated that Mr. Kendrick must have disclosed non-public source selection information to CBY regarding the Corps’s willingness to accept a lower priced proposal. Id. PCCP did not offer any evidence to support either of these allegations. Id. at 10566. In his second Determination and Findings (“D & F”), Mr. Black divided the allegations in the letter and in the GAO protest into four categories for purposes of investigation: 1) whether Mr. Kendrick had broad access to non-public source selection information; 2) whether Mr. Kendrick’s role in developing the build-to-budget approach gave him inside knowledge as to how proposals with prices lower than $700 million would be evaluated; 3) whether Mr. Kendrick violated the Procurement Integrity Act by disclosing inside information to CDM; and 4) whether the Corps failed to investigate and take action on the potential conflict of interest created when CDM hired Mr. Kendrick. Id. at 10566-67.
Mister Black then investigated Mr. Kendrick’s access to non-public information and concluded that his role while working for the Corps and his participation in the Permanent Canal Project did not give him competitively useful non-public information regarding source selection. AR, Tab 15 at 10567, 10570-71. Specifically, Mr. Kendrick did not attend meetings related to the Permanent Canal Project’s acquisition issues; he did not have access to any Phase I proposals; he did not attend any Phase I SSEB team meetings; he did not have input into the selection of offerors for Phase II; and he was not informed as to which contractors were selected for Phase II. Id. at 10570-71. Though Mr. Kendrick may have had access to the Source Selection Plan, it did not contain competitively useful non-public information. Id. at 10571. According to the contracting officer’s findings, Mr. Kendrick “likely had access” to the Permanent Canal Project acquisition plan, but since it was prepared three and one-half years before the Phase I solicitation was issued it was obsolete and irrelevant. Id.
Mister Black noted that the second category of allegations, regarding Mr. Kendrick’s role in developing the build-to-budget approach used in the procurement, was not addressed in the previous OCI investigation because no information had been found at that time to connect him to the pricing issue. AR, Tab 15 at 10572. Accordingly, in the second investigation, Mr. Black explained *319further that Mr. Kendrick was not responsible for the decision to use a build-to-budget technique. Id. Rather, Ms. Diana Hoag, an expert on procurement and acquisitions employed by Xcelsi Group, acted as an advisor to the HPO in preparing the RFP and first suggested using the build-to-budget approach. Id. The suggestion was in response to concern over the difficulties of finding additional funding if the offerors’ bids came in higher than the amount budgeted. Id. Mister Kendrick did not participate in the drafting of the solicitation’s pricing language. Id. at 10573. Rather, Ms. Hoag provided the initial language for the pricing requirement, a contractor drafted the final language, and the SSA made the final decision to use a build-to-budget approach. Id. at 10572.
Regarding the third and fourth categories, Mr. Black explained that a team which examined the proposal found nothing to indicate that CBY benefited from superior or nonpublic information that could be attributed to Mr. Kendrick. AR, Tab 15 at 10573. According to Mr. Black, the Corps conducted an OCI investigation before awarding the contract to CBY — which concluded there was no conflict — and therefore the Corps did not fail to investigate the potential conflict, as PCCP alleged. Id. As was noted above, Mr. Black finally concluded that the alleged PIA violations would have had no impact on the selection of CBY for the contract award, and found no evidence to support PCCP’s allegations. Id. at 10574.
D. The GAO Protests
On April 26, 2011, PCCP Constructors and Bechtel filed post-award protests with the GAO challenging the award decision, and the contracting officer accordingly stayed performance on the contract. AR, Tab 1 at 9; AR, Tab 44 at 15066; AR, Tab 45 at 15176. Both Bechtel and PCCP alleged that CBY had an unfair competitive advantage due to CDM’s hiring of Mr. Kendrick. AR, Tab 44 at 15068; AR, Tab 45 at 15179. PCCP specifically alleged PIA violations and argued Mr. Kendrick provided sensitive source selection information to CBY. AR, Tab 45 at 15179. Additionally, both PCCP and Bechtel argued that the agency’s pricing language had misled offerors to believe that they could not propose a price below $700 million, and that the Corps deviated from the RFP’s instructions regarding price and the best value determination when awarding the contract to CBY. AR, Tab 44 at 15067, 15075-81; AR, Tab 45 at 15180, 15210-12. In Bechtel’s third supplemental protest, Bechtel argued that the record demonstrated that CBY’s proposed foundation and pile design failed to comply with the fixity requirements for lateral loading established by the Hurricane and Storm Drainage Risk Reduction System Design Guidelines (“HSDRRS Design Guidelines”), and that the agency failed to reasonably evaluate this error. AR, Tab 49 at 15693, 15696-15701.13
The GAO held a hearing, from June 27 through July 1, 2011, in order to assist the hearing officer in understanding the technical issues and to complete the record — since there was apparently no contemporaneous documentation of the agency’s review of CBY’s proposed foundation. AR, Tab 52 (Hearing Transcript) at 16116; AR, Tab 71 (GAO decision) at 17455. One of the main issues at the hearing was Bechtel’s argument that the Corps improperly evaluated CBYs proposed foundation concept and should have *320assessed it as unacceptable regarding the depth of the piles, the way the piles connected to the structure, and the structure’s ability to withstand lateral loading. AR, Tab 71 at 17454.
The GAO informed the parties that they would need to provide witnesses to testify concerning the issues relating to the technical evaluation of proposals, and Bechtel provided its technical consultant, Maurice Ma-succi, as its witness. AR, Tab 71 at 17455. Mister Masueci was a civil engineer with experience in construction consulting and forensic engineering. Id. PCCP called engineer Douglas Hamilton to provide testimony relating to its hydraulics issues, primarily concerning the London Avenue Canal. AR, Tab 52 at 16198. In response, the agency called Corps employee and hydraulics expert [Mr. Z] to testify concerning the hydraulics issues, see AR, Tab 52 at 16146-98, but only provided one witness, [Mr. X], to address all of the other technical issues and to explain how the technical evaluations were conducted. See AR, Tab 52 at 16198, 16222-80. Mister [X], who served as leader of the technical approach evaluation team for the Permanent Canal Project procurement, was the chief of the Corps’s mechanical structural branch and a mechanical engineer. Id. at 16223-24. The other evaluators on the technical approach team included another mechanical engineer, a structural engineer, a geotechnical engineer, and a hydraulics expert. Id. at 16225; see also PL’s Mot. J. Admin. R. at 34. The contracting officer, Timothy D. Black, also testified at the hearing concerning the general evaluation process, though he was not a technical expert. See AR, Tab 52 at 16310-23.
Although several other issues were raised in the hearing by Bechtel and PCCP, the GAO decision focused on hearing testimony regarding the technical evaluation and the OCI issue — particularly the testimony of Messrs. Masueci and [X] on the former. See AR, Tab 71 at 17454-57, 17463-65.14 Mister Masueci testified at the hearing that CBY’s drawings indicated that its design was based on a [XXX] connection rather than a [XXX] connection between piles and foundation, and that because [XXX], the structure would not be able to withstand as great a lateral load as it would [XXX]. AR, Tab 71 at 17454 & n. 9; AR, Tab 52 at 16282-86.15 The GAO also noted that neither CBY nor the agency presented any rebuttal to Mr. Masucci’s testimony. AR, Tab 71 at 17454-55, n. 9.
The GAO found it troubling that [Mr. X] repeatedly testified that because he was a mechanical engineer and not a structural engineer, he therefore “had no real understanding” of the technical issues raised in Bechtel’s protest. AR, Tab 71 at 17455, n. 10 (citing AR, Tab 52 at 16251,16260,16263-64, 16265). The GAO noted that although [Mr. X] testified the foundation was “very important” to the project and that the ability of the facilities to withstand lateral loads was crucial to the project, [Mr. X] also testified that because of the design-build nature of the contract the SSEB did not evaluate the ability of the structures to meet the guidelines. AR, Tab 71 at 17455-56 (citing AR, Tab 52 at 16251, 16254, 16260). Mister [X] testified that the technical evaluation team may have discussed CBY’s foundation approach for less than five minutes, and did not evaluate the supporting documentation for the foundation that CBY had referenced in its technical proposal. AR, Tab 71 at 17456. Based mainly on this testimony, along with Bechtel’s “detailed argument,” the GAO concluded that the agency’s technical evaluation was “unreasonable and inconsistent with the terms of the RFP,” and that the Corps did not meaningfully evaluate CBY’s proposed foundation. Id. at 17457. The GAO found that the evaluators’ approach “was influenced more by a generalized belief about what is required in the evaluation under a design-*321build procurement than by the actual terms of the RFP,” because, according to the GAO, the solicitation “clearly required” the agency to evaluate “the adequacy of the offerors’ design provisions to account for structural design loads,” yet there was no record showing that the agency did so. Id.
The GAO hearing also addressed the OGI allegations, and on that issue Daniel Bradley, the branch chief of the Permanent Canal Project, and Mr. Kendrick testified as witnesses. See AR, Tab 52 at 16327-48, 16348-16405. The GAO determined that their testimony revealed several facts about Mr. Kendrick’s access to competitively sensitive information, and also his role at CBY, which the GAO found were “hard facts ... to suggest the existence of a potential, if not actual, OCI that the Corps failed to reasonably evaluate and avoid, neutralize, or mitigate.” AR, Tab 71 at 17466. Specifically, the GAO found that the record and the testimony revealed that the Corps failed to reasonably investigate Mr. Kendrick’s access to information relating to the build-to-budget solicitation language, and that this failure “taints the integrity of the procurement process.” Id. at 17467. The GAO concluded that the contracting officer had not conducted a reasonable OCI investigation in the two prior investigations because the scope had been too narrowly focused on Mr. Kendrick’s role and did not adequately investigate Mr. Kendrick’s access to non-public source selection information. Id. at 17462.
The GAO decision also concluded that the agency misled offerors as to how price would be evaluated. AR, Tab 71 at 17459. The GAO’s basis for this conclusion was that, despite the inclusion of language in the solicitation indicating that the award would be the result of a best-value tradeoff, four out of five offerors initially proposed prices of $700 million — which GAO suspected to have resulted from RFP language stating the agency expected offerors to use the full budget amount of $700 million. Id. at 17458. Because all but CBY bid $700 million in the initial proposals, GAO believed the Corps should have been aware that , only CBY understood the RFP instructions, and yet the Corps failed to explain during discussions that lower prices would be favorably considered. Id. Apparently without any further support, the GAO accepted Bechtel’s and PCCP’s assertions that they “would have allocated resources differently and submitted different proposals” if they had understood the agency would allow prices below $700 million, and therefore found they had been prejudicially misled. Id. at 17459.
The GAO issued its decision on August 4, 2011 in PCCP Constructors Joint Venture; Bechtel Infrastructure Corp., B- 405036 et al., 2011 CPD ¶ 156, sustaining the protests on the three grounds described above — the OCI issue, the price issue, and the foundation evaluation issue — and recommending corrective action for each issue. Specifically, the GAO recommended that the Corps further investigate the OCI allegations and consider how to. mitigate any conflict found to exist. AR, Tab 71 at 17469. The GAO also recommended that the Corps amend the solicitation in order to clarify that its build-to-budget approach allowed offerors to offer prices lower than the budget maximum and, if necessary, to conduct discussions about the technical and price issues considered in the protests. Id. at 17469-70. Finally, the GAO recommended that the Corps “accept and evaluate revised proposals, and make a new source selection decision consistent with” its decision, and directed the Corps to terminate CBY’s contract if a different offeror were selected for award. Id. at 17469-70.
E. The Agency’s Corrective Action
On August 17, 2011, the contracting officer sent a corrective action letter to CBY on the topic of the GAO’s decision that the Corps had not reasonably investigated the allegations concerning Mr. Kendrick. AR, Tab 66 at 17284. The letter noted the concern expressed by the GAO that Mr. Kendrick may have provided CBY “access to non-public, source selection sensitive information.” Id. The Corps told CBY that it was making an “effort to comply with the recommendations of the GAO and assure that a reasonable investigation is conducted,” and accordingly requested that CBY provide information described in a list of ten items. Id. at 17284-85. CBY responded on August 31, 2011 with *322a letter and the ten items the Corps requested. AR, Tab 66 at 17189-17275; AR, Tab 67 at 17292. On September 7, 2011, the Corps asked CBY to provide further information regarding Mr. Kendrick’s activities, and CBY again provided the items requested. AR, Tab 66 at 17286,17276-83.
On September 29, 2011, the contracting officer informed CBY that after conducting a third OCI investigation which included the new information provided, he still had “not identified a potential or actual organizational conflict of interest within the CBY organization,” and concluded that there was a “lack of any evidence to establish” that Mr. Kendrick “ever had actual access to any source selection information related to this procurement.” AR, Tab 66 at 17289.16 Despite this finding, however, Mr. Black also expressed he was “deeply concerned about the inference that a potential or actual conflict exists,” and that the “high-profile nature of this procurement demands a level of transparency” that would assure the public and other offer-ors that the investigation had been reasonable. Id. at 17289. Because of this concern, Mr. Black determined that CBY must agree to ensure that Mr. Kendrick would have no involvement in any future activities related to the Permanent Canal Project procurement, and that CBY must establish a firewall [XXX]. Id. at 17289-90.
According to the Determination and Findings of October 7, 2011, the purpose of the third investigation was to “address whether Mr. Kendrick had actual access to proprietary or specific source selection information that would give CBY a competitive advantage” in the Permanent Canal Project procurement. AR, Tab 67 at 17293. Accordingly, the Corps conducted a broader and “more reasonable” investigation regarding the potential OCI than it had previously, and specifically focused on the issues the GAO found problematic. Id. at 17292-93. The contracting officer particularly focused the investigation on Mr. Kendrick’s access to non-public information, especially regarding the RFP’s build-to-budget language, and whether Mr. Kendrick’s role enabled CBY to gain unequal access to competitively useful information. Id. at 17292, 17295-98. Contrary to the previous investigations, Mr. Black found that Mr. Kendrick did have “specific knowledge” that offerors could submit proposals below $700 million, and that Mr. Kendrick communicated that knowledge to a member of CBY’s proposal team before CBY submitted its bid. Id. at 17297. The contracting officer, however, also found that knowledge that bids below $700 million would be considered acceptable was not non-public source selection information because the Corps had always intended to communicate that information through the RFP. Id. Mister Black further determined that neither Mr. Kendrick’s access to this information nor his communications about it to CBY were impermissible, particularly because the agency had intended it to be disclosed to all offerors and believed that it had been adequately disclosed. Id. Additionally, Mr. Black concluded that the investigation did not establish that CBY actually relied on Mr. Kendrick’s knowledge because it had always been CBY’s intent to propose less than the budget amount. Id. at 17298. Thus, even though Mr. Black stated that Mr. Kendrick did “provide CBY with unequal access to competitively useful information,” Mr. Black concluded that it was not source selection information, and that CBY’s access to it was “not due to impermissible conduct.” Id.
After conducting the third OCI investigation as GAO had recommended, the contracting officer announced that “there are no hard facts to establish that Mr. Kendrick or CBY had actual access to proprietary or source selection information,” and that no conflict of interest existed for CBY under the FAR. AR, Tab 67 at 17299. The contracting officer explicitly confirmed his previous PIA Deter*323mination and Findings of May 23, 2011 “that found no violation and no impact on the procurement.” Id. Despite the absence of an OCI, however, Mr. Black acknowledged GAO’s finding that the RFP was misleading in how it conveyed the build-to-budget evaluation criterion, and stated that the RFP would be amended to address this concern. Id.
On October 21, 2011, the contracting officer sent letters to each of the five Phase II offerors announcing that the Corps would take corrective action to implement the GAO recommendation. AR, Tab 69 at 17308-17. In those letters, the contracting officer explained that the Corps had performed a third investigation as recommended by the GAO and had confirmed its original determination that no OCI existed within the CBY team. Id. He also announced that in accordance with the GAO recommendation, “and in order to address the current needs of the agency,” the Corps intended to amend the RFP so that new proposals could be accepted and evaluated. Id. at 17308, 17310, 17312, 17314, 17316. On October 28, 2011, the Corps sent out additional corrective action letters with a draft of the proposed changes to the RFP. See AR, Tab 70 at 17318-17442.
F. The Protest Filed with the Court
CBY filed a complaint in our court on November 4, 2011, alleging that the Corps’s decision to take the corrective action was arbitrary and capricious because the underlying GAO decision was arbitrary and capricious. Compl. ¶¶ 1, 145, 236. CBY’s complaint alleged two counts. Count I challenged the agency’s decision to implement the GAO recommendation as arbitrary and capricious for the following reasons: because the GAO erroneously concluded that the RFP directed offerors not to bid below $700 million and that offerors were misled to believe they had to bid exactly $700 million, Compl. ¶¶ 142-56; because the GAO irrationally considered an untimely post-award challenge to a patent ambiguity in the RFP, Compl. ¶¶ 157-64; because the GAO irrationally concluded that Bechtel and PCCP demonstrated prejudice as a result of errors in the price evaluation, Compl. ¶¶ 165-74; because the GAO did not require the establishment of a prima facie case of an unfair competitive advantage before recommending further investigation, Compl. ¶¶ 175-83; because there were no hard facts for the GAO to find that an unequal access to information OCI existed, Compl. ¶¶ 184-92; because the GAO improperly determined that the Corps failed to adequately investigate Mr. Kendrick’s access to non-public, source selection information, and that the Corps must investigate Mr. Kendrick’s role in CBY’s proposal, Compl. ¶¶ 193-213; and because the GAO irrationally determined the Corps did not meaningfully evaluate CBY’s foundation design, and based this decision on a misreading of the RFP and the failure to give appropriate deference to the agency. Compl. ¶¶ 214-23. Count II of the complaint alleged that the Corps’s decision to implement the remainder of the GAO recommendation after conducting the third OCI investigation was arbitrary and capricious because the third investigation determined that no OCI existed. Compl. ¶¶ 224-36.
On November 7, 2011, three days after CBY filed its complaint in this court, PCCP Constructors and Bechtel each filed agency-level protests challenging the Corps’s third OCI investigation and findings. Pl.’s Mot. Suppl. R. Ex. 2 at 1; see also id. Ex. I.17 PCCP’s protest specifically requested that the agency disqualify CBY for the procurement or appoint a new contracting officer to conduct yet another OCI investigation. Pl.’s Opp’n to Gov’t Mot. to Dismiss (“Pl.’s Opp’n”) at 15, Ex. 1 at 5. Both of the agency-level protests have been stayed pending reso*324lution of the litigation before this Court. PL’s Opp’n Ex. 2 at 1. Also on November 7, 2011, Bechtel and PCCP each separately moved to intervene in CBY’s protest, which was granted without opposition that same day. Scheduling Order (Nov. 7, 2011).
An administrative record consisting of sixteen volumes of documents, totaling 17,-538 pages, was filed by the government on November 16 and November 30, 2011, and further corrected on December 7, 2011. Plaintiff has moved for judgment on the administrative record, and defendant and in-tervenors have cross-moved for judgment on the administrative record, with the government adding a motion to dismiss. Because of the size of the record and the complexity of the issues concerned, the Court allowed the parties to greatly exceed the normal page limits for briefs. See Order (Dee. 13, 2011); Order (Jan. 12, 2012); Order (Jan. 26, 2012); Order (Feb. 10, 2012).
Plaintiff argues that the Corps’s decision to implement the GAO’s recommended corrective action was arbitrary and capricious because the GAO decision itself was irrational. Pl.’s Mem. of P & A in Supp. Mot. J. Admin. R. (“Pl.’s Br.”) at 1-2. Plaintiff challenged the rationality of the GAO’s determinations concerning three main issues: first, that offerors were misled to believe they had to propose exactly $700 million despite the RFP’s express language, Pl.’s Br. at 2, 37-51; second, that the Corps failed to reasonably investigate the OCI allegations regarding Mr. Kendrick’s involvement with the Permanent Canal Project, id. at 2, 51-74; and third, that the Corps failed to meaningfully evaluate CBY’s proposed foundation design. Id. at 2, 74-82.
In response, the government moves under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) to dismiss CBY’s claims for lack of subject matter jurisdiction. It argues that a challenge to the recommended third OCI investigation is moot, as the investigation has already been completed and did not result in harm to CBY. Def.’s Mot. to Dismiss or Cross-Mot. J. Admin. R. and Resp. to Pl.’s Mot. J. Admin. R. (“Def.’s Br.”) at 1, 28-30. Concerning plaintiffs challenges to the other aspects of the corrective action, defendant maintains that these are not yet ripe for review and that CBY lacks standing to bring them until the corrective action is completed and results in the selection of another offeror for the award, Def.’s Br. at 31-36; and also contends that the' challenges do not come within our bid protest jurisdiction under 28 U.S.C. § 1491(b)(1). Id. at 36-37. In the alternative, the government cross-moves for judgment on the administrative record, arguing that the GAO’s recommendation had a rational basis, and therefore the Corps’s decision to follow that recommendation was not arbitrary or capricious. Id. at 37-66.
Intervenors Bechtel and PCCP, JV also oppose plaintiffs motion and each cross-move for judgment on the administrative record. Intervenors argue that the GAO rationally determined that the Corps’s evaluation process was flawed by failing to reasonably evaluate whether CBY’s design foundation complied with the requirements, Bechtel’s Opp’n to PL’s Mot. J. Admin. R. and Cross-Mot. J. (“Bechtel’s Br.”) at 2-3, 30-41; PCCP Constructors’ Opp’n to Pl.’s Mot. J. Admin. R. and Cross-Mot. J. Admin. R. (“PCCP’s Br.”) at 44^47; by misleading offerors to believe they could not offer proposals priced lower than $700 million, Bechtel’s Br. at 3-4, 41-52; PCCP’s Br. at 4, 41-44; and by failing to assess the extent of Mr. Kendrick’s access to non-public, competitively useful information. Bechtel’s Br. at 5, 53-58; PCCP’s Br. at 2-3, 23-31 Intervenor PCCP argues that CBY is barred from challenging the third OCI investigation, due to estoppel, waiver, and a lack of prejudice. PCCP’s Br. at 19-23. Bechtel contends that by accommodating the Corps’s request for additional information regarding the OCI allegations, and by pledging that Mr. Kendrick would not participate in the procurement, CBY has waived any objections to the corrective action. Bechtel’s Br. at 54-58. The intervenors also argue that a change in the Corps’s needs justifies the corrective action, and that because GAO’s determinations were rational and supported by the record before it, the Corps’s decision to follow GAO’s recommendations was also rational. Bechtel’s Br. at 1-5, 52-53; PCCP’s Br. at 1-5, 38-56.
*325After a long and thorough hearing on the parties’ motions, see Tr. 3-322 (Feb. 23,2012) (“Tr.”), the Court requested supplemental briefing on two issues that arose during the course of the hearing — the relevance of certain GAO opinions concerning investigations of alleged unfair competitive advantage, and the proper application of deference to the GAO’s underlying decision in this matter. See Order (Feb. 28, 2012). Concerning the second issue, the Court inquired whether and how much deference may be given to opinions on questions of law, such as the interpretation of a solicitation. The parties each filed a supplemental brief the following week. See Pl.’s Resp. to Court’s Req. for Supp’l Br. (“Pl.’s Supp’l Br.”); Def.’s Supp’l Br.; Bechtel’s Post-Hrg. Supp’l Br. (“Bechtel’s Supp’l Br.”); PCCP Constructors’ Supp’l Br. (“PCCP’s Supp’l Br.”).
II. DISCUSSION
A. Legal Standards
1. Bid Protest Jurisdiction
Bid protests are heard by this Court under the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub.L. No. 104-320, § 12(a)-(b), 110 Stat. 3870, 3874 (1996). 28 U.S.C. § 1491(b)(1) (2006). The relevant provision states that our court:
... shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1). Concerning the last phrase of this provision, “[a] non-frivolous allegation of a statutory or regulatory violation in connection with a procurement or proposed procurement is sufficient to establish jurisdiction.” Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1345 n. 1 (Fed.Cir.2008).
The Federal Circuit has construed the ADRA term “interested party” to have the same definition as under the Competition In Contracting Act (“CICA”), encompassing “actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001); see 31 U.S.C. § 3551(2). In the context of a pre-award protest, the requisite interest supporting standing and prejudice is established by alleging “a non-trivial competitive injury which can be redressed by judicial relief.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1363 (Fed.Cir.2009). Normally when considering a motion to dismiss — even one based on the lack of subject matter jurisdiction — a court must accept all well-pleaded facts as true and draw all reasonable inferences in the plaintiff’s favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed.Cir.2002); Englewood Terrace Ltd. P’ship v. United States, 61 Fed.Cl. 583, 584 (2004).18
2. Judgment on the Administrative Record in a Bid Protest
The ADRA amendments to the Tucker Act require our court to follow Administrative Procedure Act (“APA”) standards of review in bid protests. 28 U.S.C. § 1491(b)(4). Those standards, incorporated by reference, provide that a:
reviewing court shall ... (2) hold unlawful and set aside agency action, findings, and *326conclusions found to be — [¶] (A) arbitrary, capricious, an abuse of discretion, or othei’-wise not in accordance with law; [¶] (B) contrary to constitutional right, power, privilege, or immunity; [¶] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [¶] (D) without observance of procedure required by law; [¶] (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or [¶] (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
5 U.S.C. § 706 (2006).
Based on an apparent misreading of the legislative history, see Gulf Grp., Inc. v. United States, 61 Fed.Cl. 338, 350 n. 25 (2004), the Supreme Court had determined, before the 1996 enactment of the ADRA, that the de novo review standard of 5 U.S.C. § 706(2)(F) does not usually apply in review of informal agency decisions — decisions, that is, such as procurement awards. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (“Overton Park ”). Instead, courts in those cases are supposed to apply the standard of 5 U.S.C. § 706(2)(A): whether the agency’s acts were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Overton Park, 401 U.S. at 416, 91 S.Ct. 814 (citation omitted); see also Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed.Cir.2000) (applying 5 U.S.C. § 706(2)(A)). But see Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 n. 5 (Fed.Cir.2001) (“Domenico Garufi”) (also citing 5 U.S.C. § 706(2)(D) as applicable in bid protests). The “focal point for judicial review” is usually “the administrative record already in existence,” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), even when the matter under review was not the product of a formal hearing. See Fla. Power & Light Co. v. Lorian, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed.Cir.2009).
A motion for judgment on the administrative record under Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) differs from motions for summary judgment under RCFC 56, as the existence of genuine issues of material fact does not preclude judgment on the administrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1355-57 (Fed.Cir.2005); Fort Carson Supp. Servs. v. United States, 71 Fed.Cl. 571, 585 (2006). Rather, a motion for judgment on the administrative record examines whether the administrative body, given all the disputed and undisputed facts appearing in the record, acted in a manner that complied with the legal standards governing the decision under review. See Fort Carson, 71 Fed.Cl. at 585; Greene v. United States, 65 Fed.Cl. 375, 382 (2005); Arch Chems., Inc. v. United States, 64 Fed.Cl. 380, 388 (2005). Factual findings are based on the evidence in the record, “as if [the Court] were conducting a trial on the record.” Bannum, 404 F.3d at 1357; see also Carahsoft Tech. Corp. v. United States, 86 Fed.Cl. 325, 337 (2009); Gulf Grp., 61 Fed.Cl. at 350.
Under the “arbitrary and capricious” standard, the Court considers “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” by the agency. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. Athough “searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. The court will instead look to see if an agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Inc. v. Ark-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 *327S.Ct. 438, 42 L.Ed.2d 447 (1974). The Court must determine whether “the procurement official’s decision lacked a rational basis,” Domenico Garufi, 238 F.3d at 1332 (adopting APA standards developed by the D.C. Circuit); see also Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 204 (D.C.Cir.1984). A second ground for setting aside a procurement decision is when the protester can show that “the procurement procedure involved a violation of regulation or procedure.” Domenico Garufi, 238 F.3d at 1332. This showing must be of a “clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973)).
Under the first rational basis ground, the applicable test is “whether ‘the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’” Domenico Garufi, 238 F.3d at 1333 (quoting Latecoere Int'l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.1994)). This entails determining whether the agency “ ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,’ ” or made a decision that was “ ‘so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.Cir.2009) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856).
Because of the deference courts give to discretionary procurement decisions, “the ‘disappointed bidder bears a heavy burden of showing that the [procurement] decision had no rational basis.’ ” Domenico Garufi, 238 F.3d at 1333 (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C.Cir.1994)). “The presence (by the government) or absence (by the protester) of any rational basis for the agency decision must be demonstrated by a preponderance of the evidence.” Gulf Grp., 61 Fed.Cl. at 351; see Overstreet Elec. Co. v. United States, 59 Fed.Cl. 99, 117 (2003); Info. Tech. & Appl’ns Corp. v. United States, 51 Fed.Cl. 340, 346 (2001) (citing GraphicData, LLC v. United States, 37 Fed.Cl. 771, 779 (1997)), aff'd, 316 F.3d 1312 (Fed.Cir.2003). If arbitrary action is found as a matter of law, the Court will then decide the factual question of whether the action was prejudicial to the bid protester. See Bannum, 404 F.3d at 1351-54.
The interpretation of a solicitation, as that of contract provisions generally, is a question of law which courts review de novo. NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1353 (Fed.Cir.2004). Whether a provision in a solicitation is ambiguous, and whether an ambiguity is latent or patent, are also questions of law over which courts exercise independent review on a case-by-ease basis. NVT Techs., 370 F.3d at 1159; Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed.Cir.1996). When interpreting a solicitation, the document must be considered as a whole and interpreted in “a manner that harmonizes and gives reasonable meaning to all of its provisions.” Banknote Corp., 365 F.3d at 1353; NVT Techs., 370 F.3d at 1159. If the provisions are clear and unambiguous, the Court must give them “their plain and ordinary meaning.” Banknote Corp., 365 F.3d at 1353.
3. Injunctive Relief
In a bid protest, our court has the power to issue a permanent injunction pursuant to 28 U.S.C. § 1491(b)(2). In determining whether to grant a motion for a permanent injunction, the court applies a four-factored standard, under which a plaintiff must show: 1) that it has actually succeeded on the merits; 2) that it will suffer irreparable harm if the procurement is not enjoined; 3) that the harm suffered by it, if the procurement action is not enjoined, will outweigh the harm to the government and third parties; and 4) that granting injunctive relief serves the public interest. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed.Cir.2009); PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed.Cir.2004); Mobile Med. Int’l Corp. v. United States, 95 Fed.Cl. 706, 742-43 (2010). None of the four factors, standing alone, is disposi-tive; thus, “the weakness of the showing regarding one factor may be overborne by *328the strength of the others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993); AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 378 (2009). Conversely, the lack of an “adequate showing with regard to any one factor may be sufficient, given the weight or lack of it assigned the other factors,” to deny the injunction. Chrysler Motors Corp. v. Auto Body Panels of Ohio, Inc., 908 F.2d 951, 953 (Fed.Cir.1990). A lack of success on the mei’its, however, obviously precludes the possibility of an injunction. See Tech Sys., Inc. v. United States, 98 Fed.Cl. 228, 268 (2011); Gulf Grp., 61 Fed.Cl. at 364.
B. Jurisdictional Issues
1. The Challenge to the Third OCI Investigation is Moot, and CBY Lacks Standing to Enjoin a Process that Exonerated It
In the first count of the complaint, CBY alleged that the Corps’s decision to follow the GAO recommendation and conduct a third OCI investigation was arbitrary and capricious. Compl. ¶¶ 183, 192, 204, 213; see also Pl.’s Br. at 51; Pl.’s Reply in Supp. Mot. J. Admin. R. (“Pl.’s Reply”) at 16. Underpinning this claim are CBY’s allegations in Count I.B that the GAO irrationally determined that the prior OCI investigations were too narrow in scope, and that the recommendation to further investigate a potential OCI was therefore arbitrary and capricious. Compl. ¶¶ 175-213. According to plaintiff, the GAO decision in this regal’d was irrational because GAO failed to give due deference to the contracting officer’s findings in the two previous investigations; because the build-to-budget information was public knowledge; because GAO applied the wrong standards; and because there were no hard facts to support the conclusion that Mr. Kendrick had access to non-public, competitively useful information. Pl.’s Br. at 52-72.
The government has moved to dismiss CBY’s claims for lack of subject matter jurisdiction. Regarding the corrective action relating to the OCI issue, the government contends that CBY’s challenge to the third OCI investigation is moot because the investigation has already been completed, and resulted in a favorable outcome for CBY. Def.’s Br. at 25-26, 27, 28-30. The government also argues that CBY lacks standing to challenge the third OCI investigation because the investigation did not cause any injury to CBY that this court could redress. Id. at 26-27, 29-30, 35-36.
In response, CBY argues that the agency-level protests filed by Bechtel and PCCP demonstrate that the OCI matter is still a live controversy, with the results of the third investigation thus still open to challenge.19 Pl.’s Opp’n at 16-17. Plaintiff notes that PCCP’s protest seeks to have CBY disqualified from the procurement, and thus if PCCP is successful this will cost it the contract already awarded and exclude it from competing under the resolicitation. Id. at 16-18; see Def.’s Reply in Supp. Mot. to Dismiss at 2 (“Def.’s Dism. Reply”).
The mootness of a case is properly the subject of an RCFC 12(b)(1) motion. “The inability of the federal judiciary ‘to review moot cases derives from the requirement of Art. Ill of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.’” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964)); Technical Innovation, Inc. v. United States, 93 Fed.Cl. 276, 278 (2010). Thus; mootness presents a question of subject matter jurisdiction. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). When a matter before this court is subject to review by the Federal Circuit, an Article III court, see 28 U.S.C. §§ 1295(a)(3), 2522; see also Seaboard Lumber Co. v. Unit*329ed States, 903 F.2d 1560, 1562 (Fed.Cir.1990), mootness is not merely a matter of prudence. Technical Innovation, 93 Fed.Cl. at 278. Rather, each “ease or controversy,” 28 U.S.C. §§ 2517, 2519, which Congress has placed under the jurisdiction of both our court and the Federal Circuit must necessarily meet the Article III justiciability requirements. See Technical Innovation, 93 Fed.Cl. at 278; Am. Mar. Transp., Inc. v. United States, 18 Cl.Ct. 283, 290-91 (1989); Welsh v. United States, 2 Cl.Ct. 417, 420-21 (1983).
As a question of jurisdiction, mootness is an exception to “the long-standing rule in the Federal courts that jurisdiction is determined at the time the suit is filed and, after vesting, cannot be ousted by subsequent events, including action by the parties.” F. Alderete Gen. Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983).20 The Supreme Court has explained that “jurisdiction, properly acquired, may abate if the ease becomes moot,” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) — which happens when it is unreasonable to expect “that the alleged violation will recur,” and when “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (citations omitted). In other words, a ease will be moot where it no longer presents a “live” controversy or the parties no longer have a “ ‘legally cognizable interest in the outcome’ ” of the litigation. See Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1019 n. 3 (Fed.Cir.2005) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)); see also Davis, 440 U.S. at 631, 99 S.Ct. 1379; Technical Innovation, 93 Fed.Cl. at 279; 15 James Wm. Moore et al., Moore’s Federal Practice § 101.90 (3d ed. 2009).
Moreover, plaintiff must also demonstrate that it has been prejudiced by the Corps’s decision to conduct the third investigation, in the context of standing. See Info. Tech. & Appl’ns Corp. v. U.S., 316 F.3d 1312, 1319 (Fed.Cir.2003). In bid protests, prejudice “is a necessary element of standing,” and in all cases “standing is a threshold jurisdictional issue.” Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366,1369-70 (Fed.Cir.2002); see also Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378-79 (Fed.Cir.2009). Under the ADRA, an offeror has standing to challenge procurement decisions that affect its “direct economic interest,” see Am. Fed’n of Gov’t Employees, 258 F.3d at 1302 (borrowing the definition from 31 U.S.C. § 3551(2)), which in a pre-award protest requires alleging “a nontrivial competitive injury which can be redressed by judicial relief.” Weeks Marine, 575 F.3d at 1363.
The Court is not persuaded by CBY’s arguments that the Corps’s decision to follow the GAO recommendation and conduct a third OCI investigation may be challenged in this bid protest. The complaint on its face alleges that the third OCI investigation has been completed and resulted in the contracting officer’s determination that no actual or potential OCI existed. See Compl. ¶¶ 3, 27-29, 97-106; id. Exs. 2 & 3. Assuming that CBY is correct in alleging that the GAO was arbitrary and capricious in recommending that the Corps should conduct a third investigation, the Corps completed that investigation and concluded that no OCI existed to preclude CBY from competing for or being awarded the Permanent Canal Project contract. Had the investigation resulted in the opposite conclusion, and plaintiffs award were accordingly cancelled, that investigation — and possibly the rationality of the GAO recommendation that spawned it21 — could *330certainly be the subject of a bid protest. But the result of the Corps’s allegedly arbitrary decision to conduct a third investigation is the further exoneration of CBY and Mr. Kendrick. See AR, Tab 67 at 17291-99.
In his Determination and Findings for the third investigation, the contracting officer stressed that the proposed amendment to the solicitation relating to the build-to-budget evaluation criterion “will correct the perceived errors in the RFP as identified by the GAO and is not in response to any claims or assertions about the alleged existence of an OCI.” AR, Tab 67 at 17299 (emphasis added). The corrective action letters sent out to offerors stated that the Corps “has reconfirmed its original determination that no Organization Conflict of Interest exists within the CBY team,” and does not link the third OCI investigation to the decision to amend the solicitation and to accept for evaluation new proposal revisions. See AR, Tab 69 at 17308-17; Compl. Ex. 2. The government concedes that the result of the third OCI investigation cannot be the basis for the decision to stay the contract award to CBY and conduct a recompetition. Def.’s Br. at 30; Tr. at 141. Thus, even if the Corps had irrationally followed an arbitrary recommendation from the GAO, this has resulted in a final decision that has not injured CBY. The recommendation has already been followed, it is not reasonable to believe that it can “recur,” and the result of the third investigation has “completely and irrevocably eradicated the effects of’ any error in following the recommendation. Davis, 440 U.S. at 631, 99 S.Ct. 1379. Any challenge by CBY to the decision to conduct a third investigation is now moot.
The Court does not find that the pendency of the intervenors’ agency-level protests, see Pl.’s Opp’n, Exs. 1-2, brought under 48 C.F.R. § 33.103, affects the mootness analysis. Plaintiff maintains that the conclusion of the third investigation has given the interve-nors another reason to challenge the finding that no OCI existed, prolonging litigation and delaying the performance of the contract it was awarded. Pl.’s Opp’n at 16-17; Tr. at 19-20. Although it is true that, had there been no third investigation, there could be no agency-level protest of the result of that investigation, this does not mean that inter-venors’ continued protests are dependent on the existence of that investigation. Had the Corps decided not to follow the GAO recommendation and not to conduct a third investigation, the intervenors could have protested that decision at the agency level, or in our court as part of a protest of any award to CBY. Thus, any looming risk to CBY’s award is not the product of the third investigation, but rather of the intervenors’ determination to protest. These protests may be inconvenient for CBY, but unless the government violates some statute or regulation in accepting the protests for filing, it is hard to see how our bid protest jurisdiction is remotely implicated. The ADRA is not a mechanism for the removal to our court of protests filed elsewhere, cf. 28 U.S.C. § 1446 (providing for removal of civil actions to district courts), and speculation about the potential results of agency-level protests is not itself an injury to the direct economic interests of the plaintiff. To be sure, if those protests are decided against CBY, and it is excluded from competition for the Permanent Canal Project contract, then there would exist a decision by the Corps that could be challenged in our court. But that would be a different decision, and a different protest.
For the same reasons described above, the Court concludes that CBY lacks standing to challenge the Corps’s decision to conduct a third OCI investigation. The decision to follow the GAO recommendation resulted in the further exoneration of CBY and Mr. Kendrick, see AR, Tab 67 at 17291-99, and thus is not an impediment to CBY receiving its contract award. And there is no connection between the decision to conduct a third investigation and the portions of the corrective action calling for new revised proposals to be evaluated for a new award. See AR, Tab 69 at 17308-17; Compl. Ex. 2. The decision to follow the GAO recommendation concerning the OCI investigation, arbitrary or not, has imposed no competitive injury upon CBY.
*331Accordingly, the government’s motion to dismiss CBY’s claims relating to the third OCI investigation, for lack of subject matter jurisdiction, is GRANTED. The challenge has been rendered moot by the contracting officer’s decision in CBY’s favor, and plaintiff has not been injured by this decision either directly (as CBY was not disqualified from award) or indirectly (as the remainder of the corrective action does not rest upon it), and thus lacks standing to protest the investigation.
2. The Rest of the Corrective Action is Ripe for Judicial Review
Concerning the remaining, non-OCI aspects of the agency’s decision to take corrective action, the government moves for dismissal for lack of subject matter jurisdiction, on three grounds. See Def.’s Br. at 31-37. Under the first ground, defendant argues that these matters are not ripe for review. Id. at 31-35.22 The ripeness doctrine prevents courts from deciding hypothetical, abstract, or contingent claims. As the Supreme Court has explained:
its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
Abbott Labs. v. Gardner, 387 U.S. 136, MS-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
In order to determine whether a claim is ripe for review “a twofold inquiry must be made: first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied at that stage.” Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507. These two prongs are typically referred to as fitness and hardship. Generally, a ease is fit for review when the legal issues presented are not ones for which the court could “benefit from further factual development,” and the court does not risk inappropriate “interfere[nee] with further administrative action.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). The hardship prong is met when the challenged decision has an impact that is “sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.” Abbott Labs., 387 U.S. at 152, 87 S.Ct. 1507.
Concerning the fitness prong, the government argues that the decision of the agency to follow the GAO’s recommended corrective action is not a sufficiently “final” agency action that may be challenged at this time, as it is the beginning and not the consummation of a decisionmaking process. Def.’s Br. at 32. Defendant primarily relies on Tokyo Kikai Seisakusho, Ltd. v. United *332States, 529 F.3d 1352 (Fed.Cir.2008) (“TKS”), a case that states “it is clear that nonfinal agency action is not ripe for review,” id. at 1362, and that quotes the following test for finality:
As a general matter, two conditions must’ be satisfied for agency action to be ‘final’: First, the action must mark the ‘consummation’ of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’
TKS, 529 F.3d at 1362 (quoting Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citations omitted)); see Def.’s Br. at 32. The government also relies on Madison Services, Inc. v. United States, 90 Fed.Cl. 673 (2009), an opinion from our court that in turn relies on TKS and Bennett. See Def.’s Br. at 33; Madison Servs., 90 Fed.Cl. at 678-79. The Court notes that the TKS statement concerning “non-final agency action” rests on two sources: a Federal Circuit case involving review under the APA, which is limited to “final agency action” unless a statute otherwise makes action reviewable, U.S. Ass’n of Imps. of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1349-50 (Fed.Cir.2005) (“USA-ITA”)-, and the provision of the APA requiring final agency action unless a suit is otherwise allowed (5 U.S.C. § 704). See TKS, 529 F.3d at 1362.
As is discussed below, the Court doubts that ripeness precedents which focus on the existence of a final agency action under the APA have much, if any, relevance to the question of whether a bid protest is ripe. But in any event, a decision challenged under our bid protest jurisdiction would need to be sufficiently final to affect the “direct economic interest” of an actual or prospective offer- or for that offeror to be an “interested party” eligible to challenge the decision. See Am. Fed’n of Gov’t Employees, 258 F.3d at 1302. With that in mind, the Court is persuaded by the five precedents relied upon by CBY that the corrective action being challenged is a final agency action reviewable under our bid protest jurisdiction,23 and finds the precedents cited by the government to be distinguishable.
To recap our situation, after CBY was awarded a contract on April 13, 2011, see AR, Tab 61 at 17084-91, protests filed with the GAO resulted in the August 4, 2011 recommendation that the Corps conduct a new OCI investigation, amend the solicitation to clarify the approach to price, conduct discussions regarding the issues in those protests “if necessary,” “accept and evaluate revised proposals, and make a new source selection decision consistent with” the GAO decision. AR, Tab 71 at 17469-70. After the third OCI investigation was completed, on October 21, 2011, the Corps contacted the five offerors in the competitive range to inform them that no OCI existed; that “[i]n accordance with the recommendation from GAO, and in order to address the current needs of the agency, it is [the Corps’s] intent to request, accept, and evaluate new proposal revisions from all short listed offerors”; and that it “intends on issuing an Amendment to the solicitation which will make” at least eight changes to the solicitation. See AR, Tab 69, at 17308-17. The following week, per its proposed schedule, the Corps sent a draft of the proposed amendment to the offerors, which was to be issued in final form one month later after comments were to have been received and considered. See AR, Tab 70, at 17318-*33317442. One week later, on November 4, 2011, CBY filed its protest here.
As plaintiff has persuasively explained, several opinions of our court have found bid protests ripe in similar circumstances. Looking first at the fitness prong, in Centech Group our court rejected the argument that corrective action in which a contract award was suspended and the solicitation amended for a new competition was not ripe until an award was made to a party other than the awardee protesting the action. Centech Grp., Inc. v. United States, 78 Fed.Cl. 496, 505 (2007). The court explained that the corrective action was “distinct from any future evaluation and award” and involved “different controversies than those which may arise from the new evaluation and award in the post-award landscape.” Id. In Ceres Gulf, the same ripeness argument was rejected in a case differing from Centech Group only in that the contract award was terminated. Ceres Gulf, Inc. v. United States, 94 Fed.Cl. 303, 317 (2010). The relevant decision to be consummated for purposes of review was found to be the decision to conduct a new competition, not the decision to award a contract under the second competition. Id. Similarly, our court in Sheridan Corp. found corrective action, in the form of a request for revised proposals, final for purposes of a bid protest, as it was the rationale for having the new competition that was at issue. Sheridan Corp. v. United States, 95 Fed.Cl. 141, 150 (2010). In Jacobs Technology Inc., our court followed the reasoning of Ceres Gulf, finding the decision to re-solicit a contract the plaintiff had already won to be a final decision “which effectively voided its previous decision.” Jacobs Tech. Inc. v. United States, 100 Fed.Cl. 173, 177 (2011). And in Systems Application & Technologies, Inc., our court found the fitness prong of the ripeness test satisfied by an announced decision to terminate an award, amend a solicitation, and allow revised proposals — as the decision was not tentative or interlocutory, and affected the legal rights and obligations of the plaintiff to perform the contract previously awarded. Sys. Appl’n & Techs., Inc. v. United States, 100 Fed.Cl. 687, 709-10 (2011).
These decisions also found the hardship prong met by the protests of the corrective actions. The immediate impact of corrective action decisions which effectively nullify or terminate a contract award and require the protester to compete a second time have been recognized to include the burden of having to win the same contract twice, see Jacobs Tech., 100 Fed.Cl. at 177; Sheridan Corp., 95 Fed.Cl. at 150; Ceres Gulf, 94 Fed.Cl. at 317; the time, effort, and expense of recompeting, see Sys. Appl’n, 100 Fed.Cl. at 710; Jacobs Tech., 100 Fed.Cl. at 177; the delay in performing and earning income under the awarded contract, Sys. Appl’n, 100 Fed.Cl. at 710; and the disadvantage due to one’s proposal information having been revealed to other offerors, id.; Sheridan Corp., 95 Fed.Cl. at 150. The possibility that an attempt to object to the corrective action decisions in a post-award protest could be found (or at least be challenged as) untimely under the Federal Circuit decision in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed.Cir.2007), has been identified as an additional source of hardship. See Sys. Appl’n, 100 Fed.Cl. at 710; Jacobs Tech., 100 Fed.Cl. at 177 & n. 8; Sheridan Corp., 95 Fed.Cl. at 150; Ceres Gulf, 94 Fed.Cl. at 317-18; Centech Grp., 78 Fed.Cl. at 505.
The Court agrees with this now-long list of precedents which hold that corrective actions requiring an awardee to compete a second time for a contract are ripe for our review. The relevant decision that must be consummated for our purposes, see Bennett, 520 U.S. at 178, 117 S.Ct. 1154, is the decision to have another competition for the award. It is not disputed that this competition will be held if plaintiffs protest fails. Absent this corrective action decision, CBY would either be performing the contract today, or defending its award in a bid protest initiated by the intervenors. Thus, the decision to take corrective action has had legal consequences, precluding plaintiff from performing the contract or resolving the propriety of its award. No additional factual development is needed, for the alleged arbitrariness concerns not the second evaluation process, but rather the decision to undertake that process. Entertaining plaintiffs protest would not “inappropriately interfere with further administrative *334action,” Ohio Forestry Ass’n, 523 U.S. at 733, 118 S.Ct. 1665, for the simple reason that if the decision to recompete the contract were an arbitrary one, there is no need for any further such action. Withholding judicial review of the corrective action decision would result in hardship to plaintiff, assuming, as we must, that its well-pled allegations are true, see Scheuer, 416 U.S. at 236, 94 S.Ct. 1683, as the benefits under the contract already awarded to CBY would be arbitrarily delayed while plaintiff was needlessly forced to expend additional resources to attempt to win the contract a second time.
The government’s argument that an agency’s procurement decision is not ripe for challenge until the agency decides to award a contract to another offeror, see Def.’s Br. at 34; Def.’s Dism. Reply at 8, cannot be reconciled with the ADRA, which clearly gives our court jurisdiction over actions “objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract,” and which emphasizes that we possess “jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.” 28 U.S.C. § 1491(b)(1). The argument is also contrary to Federal Circuit precedent requiring that protests alleging patent errors in a solicitation’s terms must be brought before the deadline for submitting offers. See Blue & Gold Fleet, 492 F.3d at 1313. Nor, for that matter, can the argument be squared with the Federal Circuit’s decision in Centech Group, a case in which an awardee’s contract award was suspended while revised proposals were solicited for a new evaluation. See Centech Grp., 554 F.3d at 1035. The Federal Circuit affirmed our court’s decision, concluding the agency “acted properly when it followed GAO’s recommendation to solicit revised proposals.” Id. at 1039. Although, as discussed above, the government had moved to dismiss the protest as unripe, Centech Grp., 78 Fed.Cl. at 505-06, no ripeness (or other jurisdictional) concerns are mentioned in the opinion.24
Defendant relies heavily on the Federal Circuit opinion in TKS, see Def.’s Br. at 32-34, which concerned a challenge to a decision of the Department of Commerce to reopen an administrative proceeding which had previously resulted in the revocation of an anti-dumping order. TKS, 529 F.3d at 1357-58, 1362-64. At issue was an “advance notification” that the so-called sunset review would be reopened “approximately 30 days after publication.” Id. at 1363 (quoting 71 Fed. Reg. 11,590, 11,591-92 (March 8, 2006)). The Federal Circuit explained that the “stated intention to reopen” was a statement that “leaves room for Commerce to change course,” and thus was not yet “ ‘formalized and its effects felt in a concrete way by the challenging parties.’” Id. (quoting Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507). Moreover, the hardship prong was not satisfied even by the reopening, as “at this juncture TKS faces no ‘legal or practical effect, except the burden of responding to the charges made against it.’ ” Id. at 1364 (quoting FTC v. Standard Oil Co., 449 U.S. 232, 242, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980)). Thus, the court found there was no final agency action satisfying the APA requirements for review, see 5 U.S.C. § 704, just an “intention to reopen” that imposes minimal administrative burdens. TKS, 529 F.3d at 1363-64.
In contrast, in this ease the contracting officer has officially informed the offerors, in two letters, of the corrective action that is actually being taken. See AR, Tab 69, at 17308-17; AR, Tab 70, at 17318-17442. The agency has decided to “follow the course of action recommended by GAO,” AR, Tab 69, at 17308, 17310, 17312, 17314, 17316. While the government maintains that the award to CBY has not officially been cancelled, it has effectively been cancelled — as CBY, under the corrective action, will only be the awar-dee if it wins the contract again with a revised proposal in response to an amended solicitation. Unlike the parties attempting to challenge agency action in TKS and the eases that opinion relied upon — a business facing *335the prospect of the reimposition of antidump-ing duties, TKS, 529 F.3d at 1358; a business being investigated for unfair methods of competition, Standard Oil, 449 U.S. at 234, 241, 101 S.Ct. 488; and an association objecting to petitions that sought to restrict the importation of Chinese textiles, USA-ITA, 413 F.3d at 1345-46 — here CBY has suffered a practical, legal effect of the corrective action, as it is not performing a contract it has won. The parties in the other cases lost nothing until the administrative proceedings were complete, but here the right to perform a contract has been denied and the costs of preparing and submitting a proposal have been reimposed on the awardee — costs which, the Court notes, have legal significance, as they are expressly awardable in a bid protest action. See 28 U.S.C. § 1491(b)(2).25
The Court also disagrees with the government’s argument that the circumstances considered in the Madison Services decision are similar to those presented in this case. See Def.’s Br. at 33. The former ease was brought by an “intended awardee,” Madison Servs., 90 Fed.Cl. at 676, who was objecting to a “stated intention, informally related to plaintiff via FEMA’s counsel,” that the agency decided to follow a GAO recommendation. Id. at 679. No action was identified “to implement or even to formalize this decision,” which the court found to be tentative. Id. The protest was filed but nine days after the GAO recommended reopening the subject competition, and six days after plaintiff was informally informed of the agency’s intention. Id. at 676. This case, in contrast, involves an actual awardee, objecting to corrective action formally announced by the contracting officer in letters dated seventy-eight and eighty-five days after the GAO’s decision was issued. See AR, Tab 69, at 17308-17 (corrective action letters dated Oct. 21, 2011); AR, Tab 70, at 17318-17442 (corrective action letters dated Oct. 28, 2011); AR, Tab 71, at 17443 (facsimile transmission sheet of GAO decision, dated Aug. 4, 2011). The timing of these communications is significant because of the following requirement of agencies involved in GAO protests:
If the Federal agency fails to implement fully the recommendations of the Comptroller General under this subsection with respect to a solicitation for a contract or an award or proposed award of a contract within 60 days after receiving the recommendations, the head of the procuring activity responsible for that contract shall report such failure to the Comptroller General not later than 5 days after the end of such 60-day period.
31 U.S.C. § 3554(b)(3) (2006) (emphasis added). In Madison Services, the agency still had fifty-one days to decide not to fully implement the GAO decision, at the time the complaint was filed challenging the informal intention to follow the recommendations. Here, the corrective action letters were sent more than two weeks after the agency was required to consummate a decision to fully implement the GAO recommendation, and they memorialize a decision to “follow the course of action recommended by GAO.” See AR, Tab 69, at 17308-17.26 The absence of any report to the Comptroller General, in the administrative record, announcing a failure to fully implement the GAO recommendations confirms that the corrective action was a final, non-tentative decision to follow them.27
*336In any event, the government’s focus on cases concerning the presence of “final agency action” satisfying the requirements of the APA appears to the Court to be misplaced. Under the APA, the agency actions that are reviewable are “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Thus, the “final agency action” ripeness eases reflect just a subset of the cases that may be brought under the APA, which also embraces all manner of pre-enforcement review prescribed statutorily by Congress. See Ohio Forestry Ass’n, 523 U.S. at 737, 118 S.Ct. 1665; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 330 F.3d 1345, 1347 (Fed.Cir.2003) (explaining how immediate review statutes displace the normal APA ripeness test). Moreover, the Federal Circuit has held that the only portion of the APA incorporated by reference into the Tucker Act by the ADRA was the “arbitrary or capricious standard of review of [title 5] section 706(2)(A).” PGBA, LLC v. United States, 389 F.3d 1219, 1226 (Fed.Cir.2004). The Circuit found that the APA standard of relief, which contains the term “agency action,” was not incorporated into 28 U.S.C. § 1491(b)(4). Id. The Tucker Act provisions governing bid protests do not themselves make reference to “agency action,” final or otherwise. Indeed, the provision incorporating the APA standards describes the subject matter of a bid protest as “the agency’s decision." 28 U.S.C. § 1491(b)(4) (emphasis added).
Congress has specifically placed matters within our bid protest jurisdiction that seem incompatible with an APA “final agency action” definition that rules out the “tentative or interlocutory.” Bennett, 520 U.S. at 178, 117 S.Ct. 1154. We have jurisdiction over objections to solicitations by the government, including challenges to the terms of the documents used to solicit offers, see Blue & Gold Fleet, 492 F.3d at 1313, when these documents are constantly amended. We have jurisdiction over objections to “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1), which includes the decision not to procure items through competitive bidding. Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed.Cir.2008). Thus, even were the definition of “agency action” contained in the APA somehow relevant to bid protests, such protests would more naturally be considered to involve “[a]gency action made reviewable by statute,” 5 U.S.C. § 704, eligible for immediate judicial review. Cf. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 811 n. 4, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (dicta recognizing that the Tucker Act “authorizes immediate judicial relief from certain types of agency determinations” in bid protest actions) (internal quotation and alteration marks omitted); id. at 820, 123 S.Ct. 2026 (Breyer, J., dissenting) (explaining that the Tucker Act “specifies that prospective bidders for Government contracts can obtain immediate judicial relief from agency determinations” including solicitations for bids and any “ ‘violation of statute or regulation in connection with a procurement or a proposed procurement’ ”) (quoting 28 U.S.C. § 1491(b)(1)).
3. Plaintiff has Standing to Challenge the Corrective Action
The government also moves to dismiss the case on the ground that CBY has “yet to suffer any injury or loss of direct economic interest,” and thus lacks standing to pursue the matter. Def.’s Br. at 35. The corrective action announced by the agency, “to follow the course of action recommended by GAO,” includes amending the solicitation, requesting and evaluating new proposal revisions, and necessarily making a new award. AR, Tab 69, at 17308-17. The GAO did not recommend terminating CBY’s contract unless “an offeror other than CBY is selected for award” after the second competition is completed. See AR, Tab 71, at 17470. But CBY has gone from being the awardee, ready to begin performance on the contract (or to help defend against a bid protest in our court) to just one of the offerors, who must compete again. Unlike the more typi*337cal pre-award bid protest, where the challenge occurs before proposals are received and evaluated, see Weeks Marine, 575 F.3d at 1361, here we know that but for the decision being challenged, CBY would be the awardee. If the loss of a substantial chance of being an awardee is a sufficient economic interest to support standing, then the loss of the certain chance of being the awardee (even if a substantial chance of winning the new competition remains) should also be sufficient for purposes of standing. See Centech Grp., 78 Fed.Cl. at 504. The Federal Circuit has found that an offeror who had a substantial chance at receiving a large portion of contracts through sealed bidding but an un-cei’tain chance at receiving them as task orders possessed the requisite economic interest to support standing. Weeks Marine, 575 F.3d at 1362. The Court finds the impact of the corrective action on CBY to be similar.
If, as CBY alleges, it is arbitrarily being required to win the same award twice, this is certainly the sort of non-trivial competitive injury sufficient to support its standing to object to the corrective action. See Centech Grp., 78 Fed.Cl. at 504; Sheridan Corp., 95 Fed.Cl. at 149; Jacobs Tech., 100 Fed.Cl. at 178; Sys. Appl. & Techs., 100 Fed.Cl. at 708. By effectively changing this competition from a single- to a double-elimination tournament for all offerors in Phase II but CBY, the Corps has inflicted sufficient competitive injury upon plaintiff to support the protester’s standing to challenge this change.28
4. CBY’s Objection to a Solicitation for Proposals is within Our Jurisdiction
The government’s third ground for dismissing the ease rests on the argument that CBY’s protest of the corrective action is not within our ADRA jurisdiction, because plaintiff is not challenging the legality of any terms of a solicitation. See Def.’s Br. at 36-37. But our jurisdiction is not limited to challenges to the actual document known as the solicitation, but rather extends to the action of soliciting proposals — it is over objections “to a solicitation by a Federal agency for bids or proposals for a proposed contract.” 28 U.S.C. § 1491(b)(1) (emphasis added). This basis for jurisdiction has been clearly identified in the complaint. See Compl. 14. The purpose of the corrective action is to solicit new proposal revisions for evaluation and contract award. See AR, Tab 69, at 17308-17. Thus, the Court finds the corrective action to be “a solicitation by” the Corps for “proposals for a proposed contract,” 28 U.S.C. § 1491(b)(1), and CBY’s protest need not be addressed to the terms of a soliciting document to be within our jurisdiction. See Ceres Gulf, 94 Fed.Cl. at 315-16; Jacobs Tech., 100 Fed.Cl. at 175-76; Sys. Appl. & Techs., 100 Fed.Cl. at 703-05.
C. Does the Deference Given to Decisions of the GAO Include Deference on Questions of Law, Such as the Interpretation of a Solicitation?
The decision of the Corps to resolicit revised proposals for the contract previously awarded to CBY rests on two independent determinations — that the “offerors were misled as to how price would be considered in this procurement,” AR, Tab 71 at 17459; and that the evaluation of proposals failed to comply with an RFP requirement that “the agency ... evaluate the adequacy of the offerors’ design provisions to account for structural design loads.” Id. at 17457. Our court’s review of such decisions, under the deferential APA “arbitrary and capricious” standard, see 5 U.S.C. § 706(2)(A), is usually straight-forward. Following the variation of the “hard-look doctrine”29 that the Federal Circuit has made applicable to bid protests, an agency’s procurement decision may be found arbitrary and capricious when “the agency ‘entirely failed to consider an impor*338tant aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the ageney, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of ageney expertise.’ ” Ala. Aircraft, 586 F.3d at 1375 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856) (alteration in original).
Under this approach, our court may not “substitute its judgment for that of the agency,” but instead looks to see if an ageney has “examine[d] the relevant data and artieu-late[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); see also Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001) (quoting same). In this inquiry, we do not second-guess the decisions being reviewed, and concern ourselves less with what was decided and more with the why supplied by the agency — which “involves verifying that objective elements contained in the agency’s analysis ... correspond to the evidence in the record ... and checking to see if subjective judgments are reached elsewhere in the analysis that contradict the evaluators’ conclusions ... making the decision too ‘implausible.’ ” USfalcon v. United States, 92 Fed.Cl. 436, 462 (2010) (citations omitted); see also Tech Sys., 98 Fed.Cl. at 247.
Two complications are present in this case, however. First, in deciding to resolicit revised proposals, the Corps was “taking steps to follow the course of action recommended by GAO” in the ruling on intervenors’ prior protests. AR, Tab 69, at 17308, 17310, 17312, 17314, 17316. Thus, the Court is called on to review the rationality of GAO’s decisions that the Corps acted unreasonably, rather than the rational basis of the latter’s actions. Second; underlying the GAO decisions may be its interpretation of the Permanent Canal Project solicitation. The interpretation of a solicitation is a question of law, and is given independent, de novo review by the Federal Circuit in bid protests. NVT Techs., Inc., 370 F.3d at 1159; Banknote Corp. of Am., 365 F.3d at 1353. Since GAO decisions may be treated by our court as persuasive authorities on questions of law, see Orion Int’l Techs. v. United States, 66 Fed.Cl. 569, 573 (2005); Univ. Research Co. v. United States, 65 Fed.Cl. 500, 503 (2005), the Court requested supplemental briefing to address whether the GAO should receive the same deference for its interpretation of solicitation terms that it gets when it applies that interpretation to the facts found. Order (Feb. 28, 2012).
The government maintains that when an agency decides to follow the recommendation resulting from a GAO bid protest, our review of a protest of that corrective action utilizes a different standard than usually applies. Def.’s Supp’l Br. at 7. In such cases, the protest concerns whether the GAO “decision itself was irrational.” Honeywell v. United States, 870 F.2d 644, 648 (Fed.Cir.1989). The government argues that the Federal Circuit’s description of this review as requiring “appropriate deference” and not permitting the “independent de novo determination of’ the issue decided by GAO, see id. at 647, 649, places such matters under a different standard than the Circuit employs to review our court’s decisions in this area. Def.’s Supp’l Br. at 6-7. Defendant cites our court’s decision in Jacobs Technology Inc. v. United States, 100 Fed.Cl. 186, 190-95 (2011), as exemplifying this purportedly different approach. Def.’s Supp’l Br. at 7 & n. 2.
These arguments are echoed by the inter-venors. Bechtel contends that although questions of law are usually decided by courts de novo, the “different posture” of a case involving the implementation of a GAO recommendation, where “the GAO decision is the focus of review,” does not allow de novo consideration of any aspect of the decision being protested. Bechtel’s Supp’l Br. at 2-5. And PCCP Constructors argues that it is a “special situation when this court reviews an agency’s decision to follow the GAO’s recommendation,” PCCP’s Supp’l Br. at 5, because of a “high degree of deference, based on the GAO’s special role and expertise.” Id. at 6. It further contends that the Federal Circuit’s decision in Honeywell, rebuking what *339it perceived as the de novo review of the responsiveness of bid documents, shows that questions of law are not independently determined in such proceedings. Id. at 7-8 (discussing Honeywell, 870 F.2d at 647).
Plaintiff, on the other hand, focuses on the well-settled principle that our court is not “bound by the views of the Comptroller General.” Pl.’s Supp’l Br. at 7 (quoting SP Sys., Inc. v. United States, 86 Fed.Cl. 1, 12-13 (2009) (citing Burroughs Corp. v. United States, 223 Ct.Cl. 53, 63, 617 F.2d 590 (1980))). It argues that the questions of law are still for our court to decide, even if a bid protest involves review of a GAO decision. Id. at 8. In support of its position, CBY cites two opinions from our court which expressly refused to defer to the GAO on questions of law — one involving statutory interpretation, Grunley Walsh Int’l, LLC v. United States, 78 Fed.Cl. 35, 38-39 (2007), and the other interpretation of a solicitation, Metcalf Constr. Co. v. United States, 53 Fed.Cl. 617, 626 & n. 17 (2002), although neither involved the protest of corrective action following a GAO recommendation. See Pl.’s Supp’l Br. at 8.
After carefully reviewing the supplemental briefs and relevant authorities, the Court concludes that defendant and intervenors are mistaken in their assertions that a special standard of review applies when a bid protest challenges corrective action taken in accordance with a GAO recommendation. Statements that our review is not de novo do not distinguish these circumstances from any other bid protest, as review is always under the deferential APA “arbitrary and capricious” standard rather than de worn30 See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380-82 (Fed.Cir.2009). Nor is there any significance to descriptions of our review as concerning the rationality of the GAO’s decision, as bid protests always involve such review of a decision. See 28 U.S.C. § 1491(b)(4) (requiring that “courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5” (emphasis added)); Domenico Garufi, 238 F.3d at 1332 (explaining that under the APA standards a protest may succeed if “the procurement official’s decision lacked a rational basis” (emphasis added)).
What is different in cases when an agency follows a GAO recommendation is not that a decision is being reviewed for rationality, but whose decision matters in this review. When the relevant procurement official (usually the contracting officer) decides to adopt the views of the GAO after a protest has been heard by that body, this agency decision is not considered inherently unreasonable (for departing from the agency’s previous position) nor invulnerable (under the shield of GAO authority), but is instead measured by the rationality of the recommendation it follows. Instead of deferring to the initial agency decision, and re-reviewing the protest that was brought in the GAO by scrutinizing the rationality of the initial decision, we defer to the second agency decision, and scrutinize the rationality of the GAO’s resolution of the protest it heard. But the review standard does not change because of the GAO’s involvement. See Centech Grp., 554 F.3d at 1037 (quoting the APA standard as described in Domenico Garufi, 238 F.3d at 1332).
When the GAO denies a bid protest, and finds the agency decision reasonable, the GAO decision drops out of the equation when a subsequent protest is brought in our court. See Data Mgmt. Servs., J.V. v. United States, 78 Fed.Cl. 366, 371 n. 5 (2007) (explaining that the GAO decision “is given no deference”); All Seasons Constr., Inc. v. United States, 55 Fed.Cl. 175, 177 n. 1 (2003).31 The *340Court is not aware of any Federal Circuit opinions in which the GAO’s seal of approval brings with it any enhanced deference toward the agency decision — after these opinions note the GAO’s denial of a protest, the GAO decisions do not figure into the Circuit’s analysis. See, e.g., Ala. Aircraft, 586 F.3d at 1374-76; Axiom, Res. Mgmt., 564 F.3d at 1378, 1381-84; Tip Top Constr., Inc. v. United States, 563 F.3d 1338, 1341-47 (Fed.Cir.2009); Info. Tech., 316 F.3d at 1317, 1319-24. In the admittedly rare case in which the GAO sustains a protest but the agency chooses not to follow that office’s recommendation, it seems the agency’s initial procurement decision (not the decision to eschew the recommendation) would be the topic of a resulting bid protest in court, and the deference given the agency’s decision is not reduced due to the GAO’s disagreement. See Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 201-02 (D.C.Cir.1984) (Scalia, J.) (“regard[ing] the assessment of the GAO as an expert opinion, which we should prudently consider but to which we have no obligation to defer” and “rejecting .the] contention that every decision of the GAO should be adopted and enforced by the court unless that decision lacks a rational basis”).
Since the amount of deference given to an agency decision under the “arbitrary and capricious” standard of review does not change when the GAO denies a protest of the decision, or when the GAO sustains a protest but its recommendation is not followed, it is hard to see how this deference would be altered by an agency’s decision to follow a GAO recommendation. No “special” amount of deference, covering questions of law as well as the ultimate decision being reviewed, can be gleaned from the three Federal Circuit precedents concerning the review of such corrective actions. See Turner Constr. Co. v. United States, 645 F.3d 1377, 1383-87 (Fed.Cir.2011); Centech Grp., 554 F.3d at 1036-40; Honeywell, 870 F.2d at 647-49.
In Honeywell, the Federal Circuit explained that the expectation that agencies, under CICA, would defer to recommendations of the GAO, shifted the focus of bid protests to the rationality of the GAO decision when these recommendations were being followed. Honeywell, 870 F.2d at 647-48. Instead of conducting the deferential, rational basis review under the APA standards, our court was found to have “impermissibly undertaken] what can fairly be characterized only as its own independent de novo determination of whether the bid documents identified [one particular company] as the bidder.” Id. at 647. In other words, our court second-guessed the judgment of the GAO as to whether the bid was responsive to the solicitation. The case did not involve the interpretation of a solicitation, but rather of the bid submitted by the awardee. If the interpretation of bids or proposals were considered a legal question, then every bid protest involving the evaluation of bids or proposals would turn on legal questions, evading deference. The Circuit treated the issue as a factual (or perhaps mixed) question, faulting our court for “its own weighing and evaluation of’ bid documents, id.; finding “the Comptroller General’s decision ... had ample support in the bid documents,” id. at 648, and “was supported by numerous statements in the bid documents,” id. at 649; and determining that our court “failed to give appropriate deference to the GAO’s conclusion that” two documents had not “contained evidence that the” awardee had itself entered into a joint venture. Id. (emphasis added). From this, one cannot conclude that the Court must defer to the GAO’s views on questions of law, such as the interpretation of a solicitation. Cf. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997, 999 (Fed.Cir.1996) (in an appeal of a Brooks Act protest from the General Services Administration Board of Contract Appeals, holding that the interpretation of a solicitation is a question of law, but the “determination that a proposal meets a particular Solicitation provision” is a question of fact).
In Centech Group, another case involving the interpretation of an awardee’s offer, the Federal Circuit makes no mention of any special deference to the GAO recommenda-*341tíon. See Centech Grp., 554 F.3d at 1036-40. The Circuit invoked the typical “arbitrary and capricious” APA standard employed in bid protests, see id. at 1037 (quoting Domenico Garufi, 238 F.3d at 1332), and noted that in appeals of bid protests “we apply the ‘arbitrary and capricious’ standard of § 706 anew, conducting the same analysis as the Court of Federal Claims.” Id. Rather than simply deferring to GAO’s interpretation of FAR provisions, the Federal Circuit noted these were “not binding” but “are instructive in the area of bid protests.” Id. at 1038 n. 4. The Circuit concluded that “[t]he record fully supports GAO’s determination.” Id. at 1040.
The Federal Circuit’s decision in Turner Construction Co. v. United States, 645 F.3d 1377 (Fed.Cir.2011), also contains no language from which one can conclude that special deference, extending to questions of law, applies when GAO recommendations were followed by an agency. References to review as “deferential” and not de novo, id. at 1384, do not set this type of bid protest apart from others. Moreover, the Federal Circuit’s placement of the GAO under the rule — based on the APA’s “arbitrary and capricious” standard, see Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856 — that “[w]hen an officer’s decision is reasonable,” the body considering a protest cannot “substitute its judgment for that of the agency,” suggests a shift in the legal landscape that is incompatible with deference on questions of law. See Turner Constr., 645 F.3d at 1383.
The Court also does not find the numerous references in opinions to the “deference” to be given GAO decisions in the procurement area as supporting the ceding to GAO of our normal role in deciding questions of law. The term “deference” is used to mean we will consider the GAO’s views for their persuasiveness, a consideration which rarely extends to non-judicial opinions. See United States v. Mead Corp., 533 U.S. 218, 227-28, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944). To go further than this and, in effect, give Chevron deference to the GAO’s opinion on a question of law, see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), seems particularly inappropriate when that question is the interpretation of a solicitation. Under Chevron, when more than one reasonable interpretation exists for statutory language, an agency’s selection of one of them will be honored by courts. See id. But if our court were limited to merely verifying that the GAO’s interpretation of a solicitation is a reasonable one, as part of a rational basis review, this ignores the possibility that more than one interpretation could be reasonable — despite the significance of ambiguity in a solicitation, particularly when it is patent (both questions of law). See Blue & Gold, 492 F.3d at 1313-15; NVT Techs., 370 F.3d at 1159; Banknote Corp., 365 F.3d at 1353; Grumman Data Sys., 88 F.3d at 997.
Nor does the Court find that the Honeywell opinion’s invocation of the Court of Claims decision in John Reiner & Co. v. United States, 163 Ct.Cl. 381, 325 F.2d-438 (1963), supports deferring to the GAO on questions of law. See Honeywell, 870 F.2d at 647-48 (citing John Reiner & Co., 163 Ct.Cl. at 390, 325 F.2d 438). The latter, pre-FAR decision was premised upon the Comptroller General’s “general concern with the proper operation of competitive bidding in government procurement,” and noted that GAO “can make recommendations and render decisions that, as a matter of procurement policy, awards on contracts should be cancelled or withdrawn even though they would not be held invalid in court.” John Reiner & Co., 163 Ct.Cl. at 386, 325 F.2d 438 (emphasis added). Any deference based on the GAO’s policymaking role would not seem to survive the Federal Circuit’s determination that the office cannot “substitute its judgment for that of the agency” in bid protests. Turner Constr., 645 F.3d at 1383. And the decision of Congress, through CICA, to codify the GAO’s role in the procurement process, see Honeywell, 870 F.2d at 648, has since been matched by its decision, in the ADRA, to give our court exclusive trial court jurisdiction over procurement bid protests — which we have now exercised for more than eleven years. See Banknote Corp., 365 F.3d at 1350. Thus, while we may still find the opinions of the GAO to be persuasive, given *342its important role and considerable expertise in this area, our court has also developed expertise in the government procurement field.
There is nothing about interpreting a solicitation that makes it a question of law only in the hands of the Federal Circuit. Indeed, in Banknote Corp., a pre-Bannum decision that reviewed a bid protest decision of our court under the summary judgment standard, the Federal Circuit explained that “judgment on the administrative record is often an appropriate vehicle” for our use — since protests “typically involve” such questions of law as “the correct interpretation of the solicitation issued,” rather than disputes of material fact. Banknote Corp., 365 F.3d at 1352. The Federal Circuit has described its “ ‘task’ ” of “ ‘addressing] independently any legal issues, such as the correct interpretation of a solicitation,’” as part of its reapplication of the same APA standard used by our court in bid protests. See Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed.Cir.2004) (quoting Banknote Corp., 365 F.3d at 1353). The Court concludes that it has the duty to determine independently any questions of law, such as the correct interpretation of a solicitation, that must be addressed in bid protests.
D. The GAO’s Recommendation Relating to the Build-to-Budget Language
One GAO recommendation followed by the Corps concerned the offerors’ understanding of the manner in which price was to be evaluated in the procurement. The GAO found that “offerors were misled as to how price would be considered,” AR, Tab 71 at 17459, and recommended that the Corps amend the solicitation with regard to the build-to-budget language to clarify that the agency would consider offers priced lower than the budget amount. Id. at 17469-70. In support of this conclusion, the GAO pointed to the fact that four out of five offerors submitted initial proposals priced at exactly $700 million, which the GAO believed should have indicated to the agency that only CBY understood that it could offer a price below the budget amount. Id. at 17458. Additionally, the GAO noted that the Corps never told offerors in discussions that offers below the budget amount “would be favorably considered,” id., and appears to have accepted Bechtel’s and PCCP’s arguments that they would have “allocated resources differently and submitted different proposals” if they had understood that prices under $700 million would be accepted. Id. at 17459.
Plaintiff argues that this recommendation was arbitrary and capricious because the RFP language did not expressly require that all offerors bid exactly $700 million, prohibited offerors from proposing prices in excess of $700 million but did not exclude offers below that amount, and included phrases such as “within the budget amount.” Pl.’s Br. at 2, 37-39. CBY further contends that the GAO’s interpretation is irrational because mandating a set price for the proposals would have violated the FAR requirements for source selection, best-value tradeoff analysis, and price evaluation, as well as statutory requirements that agencies include cost as an evaluation factor. Id. at 39-45. CBY also argues that Bechtel and PCCP failed to demonstrate competitive prejudice, id. at 46-48, and that the GAO failed to address whether the protestors’ reading of the RFP was a patent ambiguity which should have been challenged earlier. Id. at 48-49.
In the GAO proceeding, Bechtel and PCCP alleged that offerors believed that the RFP required them to propose the full budget amount, and that either the agency deviated from the solicitation by accepting CBY’s proposal or by giving CBY credit for offering less than $700 million, or the fact that offer-ors could propose less than $700 million was non-public information to which only CBY had access. See AR, Tab 44 at 15075-80; AR, Tab 45 at 15210-12; AR, Tab 49 at 15707-16, 15717-22; AR, Tab 50 at 15826-32. Before this Court, the agency now defends the GAO finding that both the RFP language and the fact that four out of five offerors initially proposed exactly $700 million indicate that offerors were misled regarding how price was to be evaluated. Def.’s Br. at 46-50. Intervenors argue that the Corps’s decision to follow the GAO recommendation to change the build-to-budget language is rational because the RFP language misled them into *343believing proposals below $700 million would not be viewed favorably, and they therefore structured their proposals without understanding the agency’s “true preferences” regarding price. PCCP’s Br. at 41-43; Bechtel’s Br. at 41-45.
If the Court were called to address the proper interpretation of the solicitation, a question of law, see Banknote Corp., 365 F.3d at 1352-53, it would have little difficulty concluding that offers below the $700 million limit were not only acceptable but, ceteris paribus, better than $700 million offers. In contrast to offers that “exceed the contract budget,” which the solicitation made clear “mil be eliminated from the competition without further consideration,” AR, Tab 4 at 715, 758 (emphasis added), the most that was said regarding prices below budget was “[a]t-tempts to offer lower priced technical solutions may be determined non-competitive and result in elimination accordingly.” Id. at 1223, 1232 (emphasis added). In stressing that the Corps “desires to maximize the best value obtainable for that amount,” and that “[o]fferors should strive to propose the best teehnieal/management solution within that budget amount,” AR, Tab 4 at 715, 758, the Corps seems to have been emphasizing the risks involved in sacrificing technical quality, as “non-cost factors are significantly more important than price.” Id. at 1223, 1232; see also id. at 758. Thus, the Corps was not expressing its distaste for a lower price but rather lower quality: “Teehnieal/management approaches that seek to trade off performance in favor of costs below the contract budget amount are not desired and will not be rewarded.” Id. at 715 (emphasis added); see also id. at 758.
As the Corps explained, the build-to-budget approach of the solicitation concerns the use of a ceiling and the prioritization of quality, as it is “a method to help owners ensure proposed prices are affordable while further enhancing the focus on technical excellence instead of proposed initial cost.” AR, Tab 4 at 1223, 1232 (emphasis added). Although the agency “expeet[ed] our solutions to utilize the full budget available and not focus on providing a low bid design,” it also noted “that Government acquisitions must use price as a factor.” Id. (emphasis added). The solicitation accordingly identified price as a factor, id. at 757-58, 769, 776, 778, 781, and informed offerors that the “[a]ward shall be made utilizing the Best Value Continuum using the Tradeoff process prescribed by” FAR section 15.101-1. AR, Tab 4 at 754, 776. Since these tradeoffs by definition are decisions whether a lower price justifies accepting lower technical quality, or higher technical quality warrants paying a higher price, see 48 C.F.R. § 15.101-1(a), (e), they require the possibility that there may be differences in price among offerors, and rest (to the great relief of taxpayers, no doubt) on the notion that lower prices are better than higher prices. As far as the interpretation of the solicitation is concerned, the Court concludes that the only reasonable reading of the build-to-budget language is that the stated budget amount is only a ceiling, and not a floor.32
The government and intervenors, however, accurately point out that the GAO did not render an interpretation of the solicitation’s build-to-budget language, but rather made the finding that offerors were misled by the solicitation’s language and (in Bechtel’s ease) by the contracting officer’s retraction of an oral statement. See Def.’s Br. at 46-50; PCCP’s Br. at 41; PCCP’s Supp’l Br. at 10-15; Bechtel’s Br. at 41-43.33 The GAO noted the solicitation language stressed by the in-tervenors, and summarized the Corps’s positions (at that time) that the best value language adequately notified the parties of the *344treatment of price and that ignoring price would violate CICA. AR, Tab 71 at 17458. But its determination was of a factual nature — inferring that the reason four of five offerors initially proposed prices of $700 million “appears to be tied to the above-quoted language in the RFP advising offerors that the agency expected them to use the full budgeted amount of $700 million for their projects,” and concluding from this that “it should have been apparent to the Corps that only CBY understood that it was allowed to propose a price below the stated budget amount.” Id.
The GAO further noted that during the discussions the Corps “never advised” offer-ors “that offez’S below the build-to-budget amount would be favorably considered.” AR, Tab 71 at 17458. And it added that “the Corps has not rebutted Bechtel’s allegation that during discussions, the contracting officer initially informed Bechtel that a lower pi’iee would be favorably received, but then, after a l’ecess, expressly retracted that statement, advising Bechtel that the pi*ior statement was made in error.” Id. at 17458-59. Based on these facts, the GAO found “that offerors were misled as to how price would be considei’ed in this pi’oeurement” and recommended “that the agency amend the solicitation to clarify this matter.” Id. at 17459.
The Coui’t finds the GAO’s treatment of this issue as a question of fact somewhat problematic and inconsistent. At the outset of the hearing, the GAO hearing examiner explained: “[Tjhere are some issues that I identified that I think are questions of law. One of them is the build to budget question, and that’s not going to be discussed at the heai’ing.” AR, Tab 52 at 16116. Thus, although the contracting officer — the other pai’ticipant in the Bechtel conversation, see AR, Tab 44 at 15138 — testified at the hearing, he was not given the opportunity to address this purportedly “not rebutted” allegation. See AR, Tab 52 at 16310-23. But in any event, the Coui’t recognizes that a rational conclusion that offeroi’s were misled might be supported by the thin reed of fact that four of five offerors submitted pi’oposals at exactly $700 million (although the conclusion that this i’esulted from offers bumping against a tight ceiling is much more plausible). This, however, does not l’esolve the rationality of the build-to-budget determination, as the Court finds that this is one of the rare cases in which “the agency ‘entii'ely failed to consider an impoi’tant aspect of the problem.’” Ala. Aircraft, 586 F.3d at 1375 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856).
The “important aspect” that was not considered concerns what the offerors were purportedly misled into believing. If the of-ferors believed they were not “allowed to propose a pric.e below the stated budget amount,” AR, Tab 71 at 17458, and the solicitation clearly stated that “[o]ffers that exceed the contract budget will be eliminated from the competition without further consideration,” AR, Tab 4 at 758, then this means that the misled offerors thought that every offer must be at exactly $700 million. This, however would effectively eliminate price as a factor — prices themselves are just numbers, and if all the numbers are the same, there can be no comparisons and no distinctions. A. process in which all pi’iees must be the same is one in which price does not matter, running afoul of CICA and the FAR.
Congress has mandated that in presci’ibing the evaluation factors for competitive proposals, an agency “shall include cost or pi’ice to the Federal Government as an evaluation factor that must be eonsidei’ed in the evaluation of proposals.” 10 U.S.C. § 2305(a)(3)(A)(ii) (2006); see also 41 U.S.C. § 3306(c)(1)(B) (Supp. IV 2011). Solicitations must include
at a minimum ... all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating sealed bids (including pi’ice) or competitive proposals (including cost or price, cost-related or price-related factors and subfaetors, and non-cost-related or non-priee-related factors and subfac-tors) ...
10 U.S.C. § 2305(a)(2)(A)(i) (2006); see also 41 U.S.C. § 3306(b)(1)(A) (Supp. IV 2011).34 *345The FAR also requires that the agency include cost as a factor in the solicitation and evaluate price as a factor in making procurement determinations — stating that although the evaluation factors applying to an acquisition are within the broad discretion of agency officials, “[p]rice or cost to the Government shall be evaluated in every source selection.” 48 C.F.R. § 15.304(c)(1)(2011). Indeed, the contracting officer’s “primary concern is the overall price the Government will actually pay.” 48 C.F.R. § 15.405(b)(2011).
The Federal Circuit has recognized that “[p]rice (or cost) must always be a ‘factor in an agency’s decision to award a contract,” and that in a tradeoff analysis the importance of price “must not be discounted to such a degree that it effectively renders the price factor meaningless.” Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed.Cir.1993). Even where, as in the case at issue here, the solicitation stipulates that non-price factors are more important, price must remain a meaningful factor in the SSA’s decision-making when conducting a trade-off analysis of competing proposals. PlanetSpace, Inc. v. United States, 96 Fed.Cl. 119, 125 (2010) (citing Lockheed Missiles, 4 F.3d 955, 959). This court has also interpreted both CICA and the FAR to require that agencies evaluate price as a factor when determining what to buy and which proposal to accept in negotiated procurements. Glenn Def. Marine (Asia) PTE, Ltd. v. United States, 97 Fed.Cl. 311, 320 (2011); Serco, Inc. v. United States, 81 Fed.Cl. 463, 491 (2008) (recognizing that CICA and the FAR indicate Congress intended price competition to play a meaningful role in government contracting decisions). Price must not be relegated to a “nominal evaluation factor” or “a mere consideration” in determining an offer- or’s eligibility for award, but must be given meaningful consideration. Serco, 81 Fed.Cl. at 491 (“[A]n evaluation that fails to give price its due consideration is inconsistent with CICA and cannot serve as a reasonable basis for an award.”).
Moreover, the GAO itself has recognized on several occasions that CICA requires agencies to include cost as a factor that' must receive “meaningful consideration” in the evaluation of proposals. MIL Corp., B-294836, 2005 CPD ¶ 29, 2004 WL 3190217, at *1 (Comp.Gen. Dec. 30, 2004). Consideration is not meaningful when price is minimized to the extent of being only a “nominal” evaluation factor. Id. at *7; see also Eurest Supp. Servs., B- 285882.4, 2003 CPD ¶ 139, 2001 WL 34118414, at *6 (Comp.Gen. July 3, 2001) (stating that evaluations which fail to give “significant consideration” to cost are “inconsistent with CICA and cannot serve as the basis for a reasonable source selection”); Electronic Design, Inc., B- 279662.2, 98-2 CPD ¶ 69, 1998 WL 600991, at *5-6 (Comp. Gen. Aug. 31, 1998) (finding the agency did not give significant consideration to cost when evaluation minimized its potential impact by not considering the relative differences in price among proposals, thus making price a nominal evaluation factor).
If the build-to-budget language in the solicitation were construed to mean that all offerors’ prices would be the same, then price would not even be a nominal consideration— it would be eliminated as a factor, in violation of CICA and the FAR. Although the solicitation, when identifying the price factor, noted that price “will be evaluated for reasonableness” in accordance with FAR section 15.404-1, see AR, Tab 4 at 769, 778, 781, the Court is not convinced that such evaluation alone satisfies the requirement that price be a factor. As the GAO has persuasively explained, “[t]he statutory requirement to consider offerors’ proposed prices in an agency’s selection determination is not satisfied by the agency’s determination that all proposed prices are reasonable, because a price reasonableness determination accords no relative weight to price in determining which offer represents the best value to the government.” Sturm, Ruger & Co., B- 250193, 93-1 CPD ¶ 42, 1993 WL 17603, at *3 (Comp. Gen. Jan. 14, 1993).
*346Although the GAO decision acknowledged the Corps’s argument that the intervenors’ interpretation of the solicitation would violate CICA, it entirely failed to consider this point. See AR, Tab 71 at 17458-59.35 But it is not reasonable for an offeror to believe that the statutory requirement that price be an evaluation factor may be dispensed with by an agency. Cf. Centech Grp., 554 F.3d at 1039 (holding that agencies may not informally alter the procurement requirements set in statutes and regulations). If any of the of-ferors truly believed the solicitation mandated that all offers be priced at exactly $700 million, the offeror would have had a duty to challenge such an illegal term before submitting its proposal. See Blue & Gold Fleet, 492 F.3d at 1313-15. Even if an offeror felt that the consideration of price was ambiguous, because of the presence of the best value tradeoff language, this would have been a patent ambiguity requiring challenge prior to proposal submission. See id.36
The GAO did not consider the legality of an evaluation scheme that removed price as a factor, the objective reasonableness of believing that such a scheme was prescribed, or the timeliness of any challenges based on such a scheme. Its determination “that of-ferors were misled as to how price would be considered in this procurement,” AR, Tab 71 at 17459, thus lacks a rational basis, and it was not rational for the Corps to have based corrective action on the corresponding GAO recommendation.
E. The GAO’s Recommendation Concerning the Agency’s Evaluation of CBY’s Technical Proposal
As the Court has dismissed plaintiffs claims relating to the GAO’s recommendation of a further OCI investigation — a recommendation which the government concedes cannot in any event support the rest of the corrective action, see Def.’s Br. at 30; Tr. at 141 — and has determined that the GAO was arbitrary in recommending corrective action based on the purportedly misleading build-to-budget language, the Corps’s non-OCI corrective action must stand or fall on the GAO’s decision regarding the evaluation of CBY’s foundation. Concerning this issue, the GAO interpreted the solicitation as requiring that the evaluation of the technical proposal include a review of the referenced supporting documentation (drawings and calculations), and determined that the Corps failed to “meaningfully evaluate[]” whether CBY’s foundation design would meet certain solicitation requirements. AR, Tab 71 at 17456-57. As was discussed above, see Section II.C supra, the interpretation of a solicitation is a question of law, independently determined by the Court. See Banknote Corp., 365 F.3d at 1352-53.
1. Did the RFP Require Review of the Supporting Documentation?
In interpreting the solicitation, the GAO began by noting that the RFP specifically incorporated the Corps’s HSDRRS Design Guidelines. AR, Tab 71 at 17453 (citing AR, Tab 4 at 834, 852). It cited the instruction that offerors address each factor “‘in sufficient detail to permit a complete and comprehensive evaluation.’ ” Id. (quoting AR, Tab 4 at 758). The GAO also noted that submission requirements for Factor 1, sub-factor 1 instructed offerors to provide “adequate design provisions to account for structural design loads,” and that “at a minimum” offerors were required to describe their “‘[foundation and basis of major structural component design(s), including design provisions for minimizing and accommodating settlement.’ ” Id. (quoting AR, Tab 4 at 759). And it emphasized that under sub-factor 1 of the *347technical approach, concerning pump station operation, offerors were told that each “ ‘proposal will be evaluated with respect to the ability of the Offeror’s solution to provide ... for each outfall canal ... [s]torm surge barrier protection ... with specific consideration of ... [ajdequate design provisions to account for structural design loads’ ” and “ ‘[continuous evacuation of water from the canals ... with specific consideration of ... [a]dequacy of design provisions to account for structural design loads.’ ” Id. at 17453-54 (quoting AR, Tab 4 at 776).
The GAO determined that the solicitation required the evaluation of supporting documentation, contained in Volume IV of the proposals, when this documentation was referenced in the technical proposal. It found this approach to be required because the RFP “expressly required that offerors explain their technical approach.” AR, Tab 71 at 17456. The GAO noted that the solicitation expressly provided “that offerors could reference the supporting documentation volume to respond to the RFP’s requirement that offerors explain their technical approach.” Id. at 17456 n. 12 (citing AR, Tab 4 at 760). It acknowledged that the RFP described Volume IV as “Not Evaluated,” but also noted that because the RFP specifically stated the contents of Volume IV would be used “‘as supporting documentation during the evaluation as referenced,’” the Corps was required to incorporate Volume IV materials in its evaluation at least to that extent. Id. (quoting AR, Tab 4 at 771). Thus, the GAO concluded that the evaluators “did not need to separately evaluate” the contents of Volume IV “except to the extent that relevant portions of that volume were referenced” in Volume I. Id.
Plaintiff argues that because this was a design-build contract, there was no need for detailed analysis of CBY’s foundation design prior to award, and that offerors only had to include “design concepts” in the proposal rather than the full design. Pl.’s Br. at 29, 76-78 (citing 48 C.F.R. §§ 36.303-2(a), 36.102). CBY contends that the RFP language did not require detailed design review and highlights the fact that the RFP included a section called “Design After Award,” which described the various design packages the awardee would later produce for evaluation. Pl.’s Br. at 30 (quoting AR, Tab 4 at 927). According to CBY, the RFP did not require the technical evaluators to conduct a detailed evaluation of CBY’s design, or of the calculations submitted in Volume IV, because the design-build process contemplated that a more detailed evaluation would be conducted after award. Pl.’s Br. at 29, 75-80. Thus, CBY argues that GAO “impermissibly substituted its judgment for that of evaluators with technical expertise” when it determined that the Corps did not properly evaluate CBY’s design. Id. at 75.
In construing the terms of a solicitation, the document must be considered as a whole and interpreted in “a manner that harmonizes and gives reasonable meaning to all of its provisions.” Banknote Corp., 365 F.3d at 1353; NVT Techs., 370 F.3d at 1159. Looking closely at the terms of the solicitation, and considering the arguments of the parties, the Court concludes that the GAO’s interpretation of the solicitation’s evaluation method is correct. First, plaintiff has identified nothing in the design-build statute, see 10 U.S.C. § 2305a, or the FAR provisions implementing it, see 48 C.F.R. §§ 36.300-36.303-2, which indicates that the design concepts being reviewed need not meet solicitation requirements. Second, turning to the RFP, while the requirements for Factor 1, sub-factor 1 did not state specifically how the foundation design would be evaluated, the solicitation did specify that an offeror must demonstrate that its approach provided “storm surge barrier protection” as required by the Statement of Work and that, in doing so, offerors should give specific consideration to “adequate design provisions to account for structural design loads.” AR, Tab 4 at 759. The RFP required offerors to provide in Volume I “a narrative that summarizes their proposed technical solution,” and allowed them to submit drawings and technical data in Volume IV which “can be referenced as required.” Id. at 759, 760. The RFP specified that Volume IV must be labeled “Supporting Documentation,” and that it “shall include the design information for each [Permanent Canal Closure and Pump] and any additional information that is needed to *348clearly illustrate the scope and approach of [the] proposal.” AR, Tab 4 at 771. In its overview of the content of each volume, the RFP described Volume IV as “Attachment A (Not Evaluated),” AR, Tab 4 at 757, yet the RFP also stated that the contents of Volume IV “will be used as supporting documentation during the evaluation, as referenced by the proposal.” AR, Tab 4 at 771.
In the RFP’s description and instructions for Volume IV, offerors were told that by submitting drawings and key design data in Volume IV “the Offeror is certifying that the items are in compliance with all the requirements of the RFP.” AR, Tab 4 at 771. Following that statement, the RFP instructed that drawings should be developed “to an appropriate level to facilitate pricing and to clearly convey the intended approach and proposed scope of work.” Id.; see also id. at 773. The description of Volume IV also indicated that “[f]oundation plans, including details for piles and piers” should be included in the sub-section entitled “Structural Drawings.” Id. at 771. It is true that the design-build contract under this procurement entails finalizing the design after award, see AR, Tab 4 at 927-45, and that among the required design packages the awardee must submit are separate “Foundation and Substructure” packages for each canal, id. at 927, but offerors were also instructed that “[t]he Technical proposal shall address the Offeror’s proposed approach to fully 'perform the requirements of the RFP.” Id. at 758 (emphasis added). Taking the foregoing into account, the Court concludes that a two-phase design-build contract does not call for an “award-first, evaluate later” process. Of-ferors were to submit design concepts that met the requirements, explained in a brief technical proposal that could reference supporting documentation in another volume. When materials in Volume IV are referenced in the technical proposal as supporting the proposal’s meeting of requirements, those materials must be reviewed as part of the evaluation of the technical proposal.
31. Was the GAO Arbitrary in Concluding that the Corps Did Not Meaningfully Evaluate CBY’s Foundation Design?
Having concluded that the GAO was correct in its interpretation of the RFP, the next question to be considered is whether the GAO was arbitrary in determining that the Corps departed from the solicitation’s terms and thus failed to meaningfully evaluate CBY’s foundation design. See AR, Tab 71 at 17457. As discussed above, intervenors Bechtel and PCCP filed protests with the GAO challenging the award to CBY, arguing that the Corps improperly evaluated CBY’s technical proposal.37 AR, Tab 44 at 15067-68; AR, Tab 45 at 15179-80. Bechtel maintained that CBY’s foundation design with [XXX] was insufficient to withstand lateral loading as required by the HSDRRS Design Guidelines. AR, Tab 49 at 15693, 15696-15700. During the hearing, the GAO heard testimony on this issue from Bechtel’s expert, Mr. Masucci, and from [Mr. X], the chair of the technical evaluation team.
As we have seen, the RFP specified that portions of Volume IV would be involved in the evaluation when referenced by the technical proposal, and CBYs proposal referenced Volume IV materials on several occasions. For example, after asserting that its [XXX] were all designed according to the requirements in the RFP and the HSDRRS guidelines, the proposal then specified that the “[structural drawings for all major components are included in Volume IV-A,” and that its “[d]esign criteria and [XXX] are provided in Volume IV-C, under Hurricane Resistance Design Data and Related Information.” AR, Tab 7 at 6587. After stating that flood walls would be designed and constructs ed to achieve the necessary stability and lateral deflection limits in accordance with the RFP and guidelines, CBY’s proposal further stated that its “[XXX] are included in Volume IV.” AR, Tab 7 at 6588. Based on such language, the GAO rationally concluded that these references were specific enough to warrant the agency’s review of the relevant *349supporting documentation in its evaluation of the foundation design.
Because there was no contemporaneous record of how the technical evaluation was conducted, the GAO mainly based its assessment of that evaluation on the hearing testimony, particularly that of [Mr. X]. See AR, Tab 71 at 17453-57. The hearing officer informed the parties that they would need to provide witnesses to address the technical issues raised in the protests, AR, Tab 71 at 17455, yet of the seven people on the technical evaluation team, [Mr. X], the chair of the technical evaluation team, was the only one to testify about the foundation design issue and the use of Volume IV in the evaluations.38 See AR, Tab 52 at 16224-25. At the prehearing conference, the hearing officer asked agency counsel whether [Mr. X] would be able to discuss “anything that the SSEB evaluated,” and the agency counsel answered that he was the witness “we think is best to address this.” AR, Tab 52 at 16262.39 The hearing officer also expressed concern that the Corps had only provided two witnesses from the evaluation team. AR, Tab 52 at 16118.40
At the hearing, [Mr. X] explained that each technical evaluator first reviewed each proposal individually, and then the evaluators discussed the proposals in what they called “a round table” in order to come to a consensus regarding the strengths, significant strengths, weaknesses, significant weaknesses, or deficiencies of the offerors. AR, Tab 52 at 16225-26. Mister [X] did not remember any discussion among the evaluators about CBY’s foundation design or about any issues associated with the pile foundation and lateral loading. AR, Tab 52 at 16251, 16254, 16255-56. On cross-examination he indicated that the ability of CBY’s proposed structures to withstand the lateral loading was “not specifically evaluated during the evaluation” and said it did not come up in discussion. Id. at 16254. When asked whether CBY’s references to Volume IV caused the evaluators to “actually consider” or analyze its contents, [Mr. X] testified that he personally did not do so, and that he did not know what the other evaluators did regarding the Volume IV data. Id. at 16255, 16257. According to [Mr. X]’s testimony, because the evaluators were preoccupied with strengths and weaknesses, they only consulted Volume IV when the evaluators had already identified a strength or weakness in the Volume I proposal itself. Id. at 16257-58. He explained that this was because the evaluators viewed the design-build concept as providing for more complete evaluation after award, and that “unless [they] saw a problem with something, [they] wouldn’t research it f[u]rther.” Id. at 16257-58. The GAO found that this approach of reviewing Volume IV only after coming to conclusions about Volume I was inconsistent with the RFP, and reiterated the problem of having no contemporaneous record showing how the evaluation team used Volume IV. AR, Tab 71 at 17455 n. 11. The GAO also noted that the agency did not explain how evaluators could reasonably determine strengths and weaknesses without first reviewing the supporting documentation.41 Id.
*350Mister [X] also testified that he remembered a discussion about the piling arrangement, but that the discussion only concluded that “it looked reasonable” and that the design would become more detailed after award. AR, Tab 52 at 16255. He said that he believed the discussion about the piles during Phase I involved all seven evaluators and that the discussion lasted perhaps five minutes “if it was that long.” Id. at 16255-56. Later he testified that there was no discussion about the foundation design “other than it looked reasonable.” Id. at 16261-62. In response to further questioning about the extent to which CBYs Volume IV was evaluated, he repeatedly testified either that he did not know, did not remember, or could not speak for what the other evaluators did. Id. at 16254, 16255, 16257, 16259, 16277, 16278. When asked to explain his understanding of a[XXX] connection, he answered, “I do not know what that is.” Id. at 16259.
The GAO noted that Bechtel’s expert, Mr. Masueei, testified that CBYs drawings in Volume IV showed that CBYs design was based on a[XXX], AR, Tab 52 at 16136, 16284-85, and that although the guidelines allowed for either a pinned or fixed connection, CBYs design was inconsistent with [XXX] which purported to show the design met the HSDRRS Design Guidelines — as these [XXX] were based on [XXX], which would purportedly be [XXX]. AR, Tab 52 at 16284, 16287; AR, Tab 71 at 17454. The GAO decision emphasized that this testimony was not rebutted by the agency or by CBY. AR, Tab 71 at 17454-55 & n. 9.
From the foregoing, the Court concludes that the GAO had a rational basis for its determination that the Corps failed to meaningfully evaluate CBYs foundation design. Bechtel’s expert testified that based on the referenced supporting documentation in CBYs Volume IV, one could conclude that the design was inadequate to meet the RFP requirements under the HSDRRS Design Guidelines. Nothing in the record indicates that the technical evaluators specifically considered this information and reached the opposite conclusion. The evaluation summaries provided in the record do not indicate whether or to what extent CBYs Volume IV drawings [XXX] were evaluated. Mister [X] testified before the GAO that each evaluator “individually reviewed the packets or the proposals” and that “[e]ach one did it a little bit differently].” AR, Tab 52 at 16225. Unfortunately the record does not contain any individual evaluator worksheets or notes that would indicate what the evaluators actually looked at or evaluated, nor does it contain any notes or worksheets that reflect the extent to which evaluators analyzed the proposals.42 With no documents illuminating the evaluation process in this regard, and the inability of the agency’s witness to shed light on the matter, the GAO could reasonably conclude that the evaluation of the foundation design was not meaningful, see AR, Tab 71 at 17454-57, and the Court finds that the GAO “examine[d] the relevant data and articulate[d] a satisfactory explanation for its” decision. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856. This conclusion does not mean that one could not find, based on the materials discussed at the GAO hearing, that CBYs foundation design met the requirements, or that other documentation in Volume IV would be insufficient to establish this. Nor can it be taken to mean that the evaluation of the other offerors’ technical proposals was adequately meaningful in the same regard. Although the evaluation of CBY’s technical proposal was the focus of the GAO decision, what the hearing revealed was an approach to the technical evaluation in general that was inconsistent with the solicitation.
8. Is the Corrective Action Justified Based on the Recommendation Concerning the Evaluation of Proposals?
The Court, therefore, concludes that the GAO rationally determined that the Corps failed to properly evaluate CBY’s foundation design (and, by implication, the technical proposals of all offerors) by not reviewing the referenced support drawings and calculations. It was therefore rational for the Corps to have followed the GAO recommen*351dation that the Corps “conduct discussions with respect to the technical ... issues raised in these protests if necessary, accept and evaluate revised proposals, and make a new source selection decision consistent with [the GAO] decision.” AR, Tab 71 at 17470. Although CBY maintains that the “GAO’s findings on their face called for no more than a re-evaluation,” Pl.’s Br. at 35, had the Corps properly evaluated proposals, any weaknesses or deficiencies identified based on the relevant Volume IV materials would have been included in discussions and could have been addressed prior to the submission of final proposal revisions. Thus, the submission of revised proposals is appropriate.
The final question for the Court to consider is whether the Corps can reasonably bootstrap the RFP changes in the proposed corrective action to the need for revised proposals and evaluations. Although the offer-ors who misunderstood the build-to-budget language may have no right to have the language dropped from the solicitation, the Court is not aware of any restriction on the Corps’s ability to do this, when the procurement is ongoing. While the confusion over this language may not be an independent ground for a stay of CBY’s award and a resolicitation and new evaluation, this confusion may rationally be addressed by the Corps — even if the Corps had no obligation to infer that the offerors harbored an unreasonable interpretation of the language, their subjective views are now certainly known and may be taken into account. See East West, Inc. v. United States, 100 Fed.Cl. 53, 57 n. 5 (2011).
Moreover, in the context of an on-going procurement, it is reasonable, as the contracting officer concluded in the Determination and Findings following the third OCI investigation, to “[a]mend[ ] the RFP to more fully communicate the basis on which proposals will be evaluated,” since this “renders moot any concern that Mi'. Kendrick’s access to this information and subsequent employment with CDM created an impermissible conflict of interest.” AR, Tab 67 at 17298; see also PCCP’s Br. at 43-14. And although the other RFP changes, relating to hydraulics issues raised in the GAO proceeding, would not warrant a resolicitation and could have been accomplished through a contract modification, see AT & T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed.Cir.1993), the Court does not see any reason why they cannot be addressed, when revised proposals and a new evaluation have been deemed necessary. Accordingly, the Court concludes that the entire corrective action has a rational basis, and defendant’s and intervenors’ cross-motions for judgment on the administrative record are GRANTED. Plaintiffs motion for judgment on the administrative record is DENIED, and plaintiffs motion for a permanent injunction is DENIED for lack of success on the merits. See Tech Sys., 98 Fed.Cl. at 268; Gulf Grp., 61 Fed.Cl. at 364.
III. CONCLUSION
For the foregoing reasons, the Court finds that the corrective action taken by the Army Corps of Engineers, following a recommendation of the GAO, was not arbitrary and capricious, but rather had a rational basis. Defendant’s motion to dismiss plaintiffs claims for lack of subject matter jurisdiction is GRANTED-IN-PART, insofar as the claims concern the third OCI investigation, and DENIED in all other respects. Defendant’s and intervenors’ cross-motions for judgment on the administrative record are GRANTED and plaintiffs motion for judgment on the administrative record is DENIED. The Clerk of Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
. This opinion was originally filed under seal, with the parties given the opportunity to suggest redactions. Plaintiff, defendant, and PCCP each proposed redactions, some of which (pertaining to proprietary information, and the names of other offerors and of agency personnel with continuing roles in the source selection) were accepted and others (such as the adjectival ratings of proposals) rejected as unjustified. Redacted names are replaced by pseudonyms (within brackets), and other redacted text has been replaced in the following manner: "[XXX].'’ The opinion is released for publication, with some minor, non-substantive corrections.
. While the record in this case refers to the project as the “PCCP project," the Court will refer to it as the "Permanent Canal Project” in order to avoid confusion with the intervenor PCCP Constructors.
. Plaintiff repeatedly emphasizes the use of the word "ceiling” in the Synopsis, and the government argues that the Synopsis should not be considered because it was not presented to the GAO, see Def.’s Mot. to Dismiss at 52, but the reference to the budget amount being a "ceiling” *312is also found in other places besides the Synopsis. See e.g., Tab 10 at 10421 (Summary Price Analysis for Revised Proposals); AR, Tab 11 at 10485 (Source Selection Decision Document); AR, Tab 13 at 10536 (SSAC Memorandum for Record).
. The entire initial SSEB report is at AR, Tab 58 at 16820.
. The Price Evaluation Team Report for revised proposals, dated February 25, 2011, can also be found at Tab 10, AR at 10420-62, where it is included as Appendix E to the final SSEB Report.
. [Offeror A] offered an alternative proposal for $700 million which would have [XXX]. but which consequently did not meet the solicitation's requirements. AR, Tab 11 at 10482; AR, Tab 21 at 12955; AR, Tab 22 at 13053-54.
.In its Price Analysis Report, the price team listed several assumptions [Offeror B] made in its price proposal and suggested that the contracting officer review them to ensure compliance with the RFP and the FAR. AR, Tab 22 at 13067. The contracting officer later confirmed that [Offeror B]'s assumptions included [XXX] reductions in order to maintain the $700M price, as well as [XXX], which presented “a significant risk to the Government.” AR, Tab 21 at 12964.
. The price team’s findings were confirmed by the contracting officer in the Price Negotiation Memorandum, which was signed by the contracting officer on April 8, 2011 and was included in the update submitted to the Source Selection Authority. See Tab 21, AR at 12941, 12965.
. The SSAC confirmed the SSEB’s determination that [Offeror B]’s proposal included assumptions which rendered the proposed price “in excess of the $700,000,000 RFP ceiling,” and that [Offeror A]'s proposal also exceeded the price ceiling— and thus did not further analyze their strengths and weaknesses. AR, Tab 13 at 10530.
. According to the Source Selection Plan, the SSA was not bound by the SSEB’s findings, but the SSA's decision had to have a rational basis in terms of the solicitation’s evaluation criteria and had to meet all legal and procedural requirements. AR, Tab 17 at 11080.
. Despite [Offeror B's and Offeror A’s] higher priced proposals, the SSA still included them in her final analysis. See AR, Tab 11, at 10480-85. The SSA determined that [Offeror A] failed to stay within the RFP’s stated budget amount, even though discussions had "reiterated to all offerors the importance of not exceeding the maximum RFP budget.” AR, Tab 11 at 10482. The SSA also found that [Offeror B]'s assumed reduction in costs due to future [XXX] savings (which would entail a change in the technical solution), along with [Offeror B’s] [XXX], presented "a significant risk” to the government, and that [Offer- or B] was actually proposing a cost of [XXX]. AR, Tab 11 at 10485.
. The ethics letter also advised him that he could not accept compensation from a contractor for a period of one year if while in government employment he had particular involvement with a contract worth more than $10 million awarded to that contractor. See AR, Tab 15, at 10632.
. Bechtel and PCCP raised numerous protest allegations in both their initial and supplemental protests, which the GAO did not include as grounds for its decision. In the initial protest, Bechtel alleged that CBY’s technical proposal did not comply with RFP requirements, and argued that the agency unreasonably evaluated the non-price aspects of proposals by treating offerors unequally, unreasonably assigning weaknesses to Bechtel’s proposal, and failing to conduct meaningful discussions. AR, Tab 44 at 15067-68. PCCP also alleged that the agency unreasonably evaluated PCCP’s technical proposal and incorrectly applied data that resulted in the erroneous assignment of significant weaknesses to PCCP’s proposal. AR, Tab 45 at 15179-80. PCCP's supplemental protest additionally alleged that the agency should have assigned CBY a significant weakness for its improper approach to maintaining low water elevation in canals, and that the agency improperly evaluated the proposals regarding the pumps and water flow designs for the London Avenue Canal. AR, Tab 50 at 15805-07. Because the GAO did not sustain the protest on these grounds, however, they are not relevant issues before this Court, and only the specific issues that relate to CBY’s protest will be addressed.
. The GAO concluded that PCCP failed to "establish a clear basis to find that the agency’s evaluation” of proposals with regard to the water flow requirements through the London Avenue Canal was either unreasonable or violated procurement laws or regulations. AR, Tab 71 at 17469.
. The GAO noted that the solicitation permitted offerors to base their designs on either a pinned or fixed connection, as long as it met the requirements of the HSDRRS Design Guidelines, which require a certain depth of embedment relative to the pile's diameter. AR, Tab 71 at 17454-55, n. 9.
. This letter was a correction to a letter which Mr. Black had written on September 23, 2011, in which he indicated that the Corps had determined that there was a potential OCI and listed actions the Corps planned to take to mitigate the conflict and "allow CBY to remain in the competition." AR, Tab 66 at 17287. The September 29 letter purported to "correct and clarify the substance” of the letter dated September 23, after "further review and analysis were conducted” which confirmed that no "hard facts” established Mr. Kendrick’s actual access to source selection information. AR, Tab 66 at 17289.
. The agency-level protests were not included in the administrative record. The Court first learned of these protests on January 31, 2012, when plaintiff CBY requested leave to submit evidence about them to the Court’s record. See Pl.'s Mot. Suppl. R. at 3-5. The government agreed with plaintiff that this evidence could be admitted as part of the court’s record, but opposed its inclusion on timeliness and relevance grounds. Def.’s Opp’n to Pl.’s Mot. Suppl. R. at 2-4. Intervenor PCCP also opposed CBY’s motion as irrelevant. PCCP’s Opp’n to Pl.’s Mot. to Suppl. R. at 2-5.
. The exception, not presented here, is when jurisdictional facts are challenged, as the plaintiff must then demonstrate jurisdiction by a preponderance of the evidence. See McNutt v. GMAC, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). In examining jurisdictional facts, a court may consider all relevant evidence, including material outside the pleadings. See Land v. Dollar, 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); KVOS, Inc. v. AP, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936); Moyer v. United States, 190 F.3d 1314, 1318 (Fed.Cir.1999); Indium Corp. of Am. v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985); Forest Glen Props., LLC v. United States, 79 Fed.Cl. 669, 676-78 (2007); Patton v. United States, 64 Fed.Cl. 768, 773 (2005).
. While it is not in the administrative record, plaintiff CBY has moved to supplement the Court's record with a copy of PCCP's agency-level protest and a declaration concerning CBY’s counsel’s knowledge of the Bechtel counterpart. See Pl.'s Mot. to Suppl. R. at 1-2, Ex. 1, Ex. 2. Because these documents address the issue of prejudice, which often cannot rest on matters in an administrative record, see East West, Inc. v. United States, 100 Fed.Cl. 53, 57 (2011); PlanetSpace, Inc. v. United States, 90 Fed.Cl. 1, 4-5 (2009); AshBritt, 87 Fed.Cl. at 366-67, plaintiff’s motion to supplement the Court's record is GRANTED.
. In the other direction, jurisdictional questions of ripeness are not based on the state of affairs at the time of filing, as subsequent events may make a matter ripe. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974).
. The intervenors maintain that CBY waived the ability to challenge the decision to conduct a third OCI investigation by willingly participating in it, relying on the Federal Circuit’s decision regarding the timeliness of challenges to patent errors in the terms of a solicitation. See PCCP’s Br. at 19-21 (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313-15 (Fed.Cir. 2007)); Bechtel's Br. at 54-58 (same). The government takes the position that the rationality of the GAO recommendation and the results of the subsequent investigation could be challenged together in a protest of a decision to disqualify an offeror. Tr. at 139. The resolution of the gov*330ernment’s RCFC 12(b)(1) motion takes precedence over the intervenors' merits arguments, which are rendered moot by the decision on the former.
. Whether a motion to dismiss on ripeness grounds should be viewed as a question of jurisdiction rather than a failure to state a claim has been a matter of contention, as some ripeness considerations, such as the finality of a decision, are ''prudential” and not derived from Article III of the Constitution. See White & Case LLP v. United States, 67 Fed.Cl. 164, 168 (2005) (citing Suitum v. Tahoe Ref l Planning Agency, 520 U.S. 725, 733-34, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997)); see also Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 32 L.Ed.2d 317 (1972) (explaining that due to ripeness considerations "even when jurisdiction exists it should not be exercised"). In a case involving the challenge to a substantive rule issued by an agency, the Federal Circuit broadly held that "ripeness is a jurisdictional consideration that the court may address sua sponte.” Coal, for Common Sense in Gov’t Procurement v. Sec'y of Veterans Affairs, 464 F.3d 1306, 1316 (Fed.Cir.2006) (citing Nat’l Park Hospitality Ass'n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003), which in turn cited Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993)). Although the Supreme Court opinion that was ultimately the basis for the Federal Circuit’s decision rested upon a misstatement of a prior Supreme Court holding, compare Catholic Soc. Servs., 509 U.S. at 57 n. 18, 113 S.Ct. 2485 (stating "[e]ven when a ripeness question in a particular case is prudential, we may raise it on our own motion”) with Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (explaining "we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the ‘Case or Controversy' sense") (emphasis added), the Circuit’s decision seems to settle the matter, and ripeness will be treated as a jurisdictional question regardless of the considerations at issue.
. See Pl.’s Opp’n at 5-8 (citing Sys. Appl'n & Techs., Inc. v. United States, 100 Fed.Cl. 687 (2011); Jacobs Tech. Inc. v. United States, 100 Fed.Cl. 173 (2011); Sheridan Corp. v. United States, 95 Fed.Cl. 141 (2010); Ceres Gulf, Inc. v. United States, 94 Fed.Cl. 303 (2010); and Centech Grp., Inc. v. United States, 78 Fed.Cl. 496 (2007)). Of course, decisions from our court are merely persuasive authority. See Vessels v. Sec’y of Dep’t of Health & Human Servs., 65 Fed.Cl. 563, 569 (2005). Because our jurisdiction is both nationwide and exclusive concerning most matters, our judges have a functional reason, perhaps, to be more resistant to such persuasion than other federal trial courts — as the Federal Circuit as a practical matter has no alternative source of judicial decisions it can consult in those matters. Cf. F. Alderete Gen. Contractors v. United States, 715 F.2d 1476, 1479 (Fed.Cir.1983) ("We are aware of the advantage which an appellate court has in resolving an issue where the ground has been well plowed in the conflicting decisions of a lower court.”).
. Although such "drive-by jurisdictional rulings” are not normally taken to be precedential, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Federal Circuit has stressed the need to explicitly consider jurisdictional issues in bid protests. See Info. Tech. & Appl’ns Corp., 316 F.3d at 1319.
. The situations would be comparable if CBY merely faced an investigation — say, a fourth OCI proceeding — which could result in contract termination, while it continued to perform the contract.
. The facsimile notations on the copy of the GAO decision in the record indicate that it might have been transmitted (and, presumably, received) on August 5, 2011, the day after the decision (and cover sheet) was dated. AR, Tab 71, at 17443-70. This would mean that the first corrective action letter was sent seventy-seven days after receipt of the GAO decision.
. The Court does not find the other precedents cited by the government to be relevant or persuasive. One, an unpublished opinion of the Federal Circuit, found that a contract awardee had standing to protest the resolicitation of its contract, and thus, if anything, would seem to support the plaintiff’s position. See Roxco, Ltd. v. United States, 185 F.3d 886 (Fed.Cir.1999) (table), 1999 WL 160608, at *2. The other concerns an attempt to enjoin a hearing that was to determine whether deportation deferrals should continue, see Karake v. U.S. Dep't of Homeland Sec., 672 F.Supp.2d 49, 53-54 (D.D.C.2009), and, like TKS, involved no legal or practical effect on the *336plaintiffs until a decision resulted from the hearing.
. Additional competitive injury that would be suffered by CBY were it arbitrarily to be required to win the award a second time includes the disclosure to competitors of not just the price it proposed, see AR, Tab 61, at 17084-91, but also the summary of its strengths, see AR, Tab 62, at 17121-22; AR, Tab 64, at 17185-86. Plaintiff has not been given the same information regarding its competitors. See AR, Tab 63, at 17131— 55.
. See Cass R. Sunstein, Deregulation and the Hard-Look Doctrine, 1983 Sup.Ct. Rev. 177, 178, 181-84, 194-96 (1983).
. The Court recognizes, however, that this state of affairs is based on the Supreme Court’s misreading of legislative history. See Gulf Grp., 61 Fed.Cl. at 350 n. 25 (criticizing Overton Park, 401 U.S. at 415, 91 S.Ct. 814).
. Some confusion on this point might result from dictum in Allied Technology Group, Inc. v. United States, 649 F.3d 1320 (Fed.Cir.2011) if Allied Tech. Grp. II”), which inaccurately suggested that our court had reviewed the GAO’s denial of a protest. See id. at 1322, 1326; cf. Allied Tech. Grp., Inc. v. United States, 94 Fed.Cl. 16, 23-24, 38-50 (2010) (reviewing the actions of the contracting officer). But in its holdings, the Federal Circuit was clearly reviewing the decisions of the agency’s contracting officer. Allied Tech. Grp. II, 649 F.3d at 1330 (explaining "this court affirms the Contracting Officer’s decision”), 1331 (finding "the Contracting Officer did not lack a rational basis”), 1333 (twice determining that the *340contracting officer "had a rational basis,” and "affirming the government’s award of the contract”).
. The Court does not find that the Corps’s failure to correct the inaccurate premise of a question from an offeror — that a proposal that would have been below budget can be made "compliant” by an "offeror simply including] better-ments and increas[ing] its estimate of costs until it equals the stated budget amount,” AR, Tab 4 at 1412 — somehow incorporates that premise into the solicitation. The offeror was looking for a way to exceed the budget amount, and was tersely instructed: "The Offeror’s proposal must comply with the RFP requirements.” Id.
. The GAO’s passing reference to "the RFP's express direction not to offer a lower price,” AR, Tab 71 at 17465, in the portion of its decision concerning the OCI allegations, does not constitute an interpretation of the solicitation, at least for purposes of the build-to-budget finding and recommendation.
. In a two-phase design-build procurement like the Permanent Canal project, cost or price is *345omitted from phase one, but required as an evaluation factor in phase two. See 10 U.S.C. § 2305a(c)(2)-(4); 41 U.S.C. § 3309(c)(2)-(4)(Supp. IV 2011); see also 48 C.F.R. § 36.303-2(b).
. Indeed, the footnote in which the GAO disclaimed any opinion on the meaning of the build-to-budget language stated that it " expressed] no opinion with respect to the wisdom of the build-to-budget approach,” and did not even reference its legality. AR, Tab 71 at 17459 n. 15 (emphasis added).
. Contrary to the government's contention, see Def.’s Br. at 53, this conclusion is not undermined by our court’s decision in Gentex Corp. v. United States, 58 Fed.Cl. 634, 652 (2003). Although Gentex, which predated Blue & Gold Fleet by three and one-half years, concerned the problem of a "lack of clarity in the RFP” regarding which purported requirements needed to be met, it involved no question of the legality of terms nor was there a determination of whether any ambiguities were patent or latent. See id. at 650-52.
. Bechtel and PCCP raised several other allegations about CBY’s technical proposal, but only the issues on which the GAO sustained the protests, and which CBY now challenges in this Court, are relevant to this case.
. The Corps called one other member of the team, a hydraulics expert named [Mr. Z], to testify about the hydraulics issue, but [Mr. X] was the only one to address the technical evaluation process. The GAO decision noted that the agency provided only one witness ([Mr. X]) who was a mechanical engineer and who professed an inability to testify about the foundation issues raised in Bechtel’s protest. AR, Tab 71 at 17455 n. 10. The contracting officer, Mr. Black, testified mainly about the overall process and other issues not related to the evaluation of CBY's design or Volume IV materials. See AR, Tab 52 at 16310— 23.
. It appears from the transcript that CBY had an expert at one point named Mr. Dyhouse, but nothing in the record indicates why he did not testify at the hearing. See AR, Tab 52 at 16142.
. The GAO hearing examiner implied that she may not have allowed the entire seven-member team to testify, see AR, Tab 52 at 16262, but the record does not indicate that either CBY or the agency made an attempt to call other technical evaluators as witnesses.
. When asked about handling inconsistencies between the data in Volume I and Volume IV, [Mr. X] answered, "You would probably have to ask Tim Black, the contracting officer.” AR, Tab 52 at 16259. No one, however, asked Mr. Black about that issue during his testimony. See AR, Tab 52 at 16310-23.
. The Court assumes that the agency had ample opportunity and incentive to maintain, locate, and include such documents in the record before the GAO if such documents existed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218276/ | OPINION
ALLEGRA, Judge:
Petitioner, Elizabeth Shapiro, seeks review of a decision issued by Special Master Christian Moran denying her petition for vaccine injury compensation. Petitioner brought this action pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to 300aa-34 (2006), alleging that she suffers from hypothyroidism and Systemic Lupus Erythematosus (SLE) as a result of hepatitis-B vaccinations that she received. Initially, the Special Master denied compensation, finding that petitioner’s illnesses were not caused by the hepatitis-B vaccinations. Shapiro v. Sec’y of Health and Human Servs., 2011 WL 1897650 (Fed.Cl. Apr. 27, 2011) (Shapiro I). This court affirmed the Special Master’s findings regarding the SLE claim, but remanded the case for further consideration of petitioner’s thyroid claim. Shapiro v. Sec’y of Health and Human Servs., 101 Fed.Cl. 532 (2011) (Shapiro II). After further consideration, the Special Master issued a decision denying compensation on the thyroid claim. Shapiro v. Sec’y of Health and Human Servs., 2012 WL 273686 (Fed.Cl. Jan. 10, 2012) (Shapiro III). Petitioner now moves for review of this decision, as well as for reconsideration of the denial of her SLE claim. For the reasons that follow, however, the court DENIES both motions.
1. BACKGROUND
A brief recitation of the facts provides necessary context.2
Petitioner was born in 1950 and is a nurse-practitioner. She has three children and her husband is a pediatrician. The record contains no contemporaneous medical records suggesting that petitioner had either of the illnesses in question prior to receiving her first hepatitis-B vaccination in 1992. Her only medical visits before those vaccinations were for routine checkups.
On April 13, 1992, petitioner received the first of three hepatitis-B vaccinations. On April 29, 1992, she visited Dr. Sylvan Frie-man and reported abdominal bloating and weight gain. Dr. Frieman’s records do not reflect when these symptoms began.
On September 21, 1992, petitioner received her second hepatitis-B vaccination. On October 19, 1992, petitioner visited Dr. Richard Berg, an internist and infectious disease specialist, complaining of a five-day history of severe headache and neck ache; lightheadedness; a rapid, irregular heartbeat; and an extended menstrual period. That same day, testing revealed that petitioner’s thyroid stimulating hormone (TSH) was ten times the normal level, indicative of hypothyroidism. On October 21, 1992, Dr. Berg prescribed synthroid to treat petitioner’s hypothyroidism. About a month later, petitioner’s palpitations and lightheadedness had abated and her menstrual period had improved.
On February 8, 1993, petitioner received her third and final hepatitis-B vaccination. She returned to Dr. Berg twice in March of 1993, complaining of worsening symptoms, and reporting palpitations, nausea and abdominal pain. Petitioner’s weight fluctuated during this period, likely as the result of her thyroid condition and treatment. Dr. Berg adjusted petitioner’s dosage of synthroid and referred her back to Dr. Frieman, as well as to a new doctor, Dr. Ronald L. Ginsberg, a gastroenterologist. Petitioner visited Dr. Ginsberg in April of 1993, complaining of constipation, weight gain, prolonged menstrual periods, palpitations and lightheadedness.
Petitioner continued to experience nausea and discomfort in her abdomen. Dr. Gins*356berg ordered a CT scan of her abdomen, which was normal. An upper endoscopy was then performed, resulting in a diagnosis of gastritis. Five times from April through July of 1993, petitioner saw Dr. Berg. Dr. Berg readjusted her medication. In July of 1993, petitioner’s thyroid tests were normal. On July 23, 1993, she filed an incident report with the Vaccine Adverse Event Reporting System, citing problems such as weight loss, lightheadedness, palpitations, weight on chest, fatigue and nausea.
On August 2, 1999, petitioner filed her vaccine petition. Subsequently, she filed several sets of medical records and a number of expert reports. Among the reports was one rendered by Dr. Joseph Bell anti, in June 2006, who opined that Ms. Shapiro’s symptoms worsened after each dose of the hepatitis-B vaccination, a causation pattern known as “challenge-rechallenge.” Dr. Bellanti opined that this sequence of adverse reactions resulted in the development of SLE. On January 8, 2007, petitioner filed a report by a second expert, Dr. Yehuda Shoenfield, who serves as the head of the Center for Autoimmune Diseases at Sheba Medical Center, Tel-Aviv University, Israel.3 Dr. Shoenfield opined that Ms. Shapiro likely had a genetic predisposition to develop autoimmune diseases and that the hepatitis-B vaccine triggered her autoimmune condition. Dr. Shoenfeld linked the three hepatitis-B vaccinations received by petitioner to her development of thyroid disease and SLE. For its part, respondent provided expert reports from two doctors, Dr. Alan Brenner and Dr. Brian Ward. Both concluded that there was no association between Ms. Shapiro’s medical conditions and her receipt of the hepatitis-B vaccine.
On July 30, 2007, the case was reassigned to Special Master Moran. He conducted two hearings in the case — on November 24, 2008, and January 8, 2009, respectively. At the first of these hearings, Ms. Shapiro and Dr. Shoenfeld testified in person; at the second, Dr. Ward testified in person. Subsequent to these hearings, Ms. Shapiro was permitted to file additional evidence and medical literature in support of her ease.
On April 27, 2011, the Special Master issued a decision denying petitioner’s claim. Shapiro I, 2011 WL 1897650. In that decision, he rejected the opinions of petitioner’s experts, observing that they had relied on assertions made by Ms. Shapiro that she was healthy prior to 1992. Although Ms. Shapiro had reaffirmed these assertions in affidavits filed in the case, the Special Master concluded that “[a] preponderance of evidence supports a finding that Ms. Shapiro was having health problems before 1992.” Id. at *6. In this regard, the Special Master relied heavily on the April 1993 records of petitioner’s gas-troenterologist, Dr. Ginsberg, finding that his records put the onset of petitioner’s hypothyroidism condition to about October of 1991— before she received the first of the vaccinations in question. The Special Master concluded his brief analysis of the thyroid issue by stating that “[a] finding that Ms. Shapiro’s thyroid problems began before she first received the hepatitis B vaccine resolves Ms. Shapiro’s claim that the hepatitis-B vaccine caused her thyroid condition,” adding that “[bjecause Ms. Shapiro was afflicted with a thyroid condition before she received the hepatitis-B vaccine, the vaccine could not have caused the disease.” Id. at *13.
As to Ms. Shapiro’s SLE claim, the Special Master noted that proof of that claim required evidence of a temporal relationship between the administering of the vaccine and the onset of Mr. Shapiro’s SLE symptoms. The Special Master first reviewed the medical literature and Dr. Shoenfeld’s testimony and concluded, based thereupon, that the timeframe in which it was “medically acceptable to infer causation” was two to three weeks, that is to say, this was the period within which exposure to any antigen in the vaccine should have produced symptoms. Id. at *14. The Special Master then found that petitioner’s symptoms did not onset within
*357this interval. He noted that petitioner’s second and third doses of the vaccine were administered on September 21, 1992, and February 8, 1993, respectively. He further noted that the two symptoms that Dr. Shoen-feld testified had heralded the onset of the SLE did not arise until July of 1993 — as documented by medical reports from Drs. Berg and Sehonwald — too láte to fall within the period expected. The Special Master found, relying upon the expert report of Dr. Ward, that the remainder of the symptoms petitioner experienced “immediately following her first and second doses of the hepatitis B vaccine are compatible with hypothyroidism.” Id. Based on these findings, the Special Master concluded that Ms. Shapiro had failed “to establish a’ showing of a proximate temporal relationship between vaccination and injury.’ ” Id. at *13 (quoting Althen v. Sec’y of Health and Human Servs., 418 F.3d 1274, 1278 (Fed.Cir.2005)).4 On this basis, he found that “Ms. Shapiro is not entitled to compensation for her thyroid condition or SLE.” Id.
On May 27, 2011, petitioner filed a motion to review the Special Master’s decision. On October 27, 2011, this court issued an opinion granting, in part, and denying, in part, petitioner’s motion for review. The court vacated the Special Master’s finding that petitioner had suffered from thyroid disease prior to receiving her first vaccination, finding that the Special Master had improperly relied upon a single medical record as a “factual fulcrum on which to leverage his findings.” Shapiro II, 101 Fed.Cl. at 537. The court found that the Special Master improperly treated the medical record in question, the October 1993 letter by Dr. Ginsberg, as a contemporaneous medical record, even though it was written years after the symptoms it described and “was in no sense contemporaneous.” Id. at 539. What’s more, this court observed, the Special Master’s opinion ignored a statement on the very next page of Dr. Ginsberg’s letter that supported petitioner’s claim that she had acquired her thyroid disease after the first of her vaccinations. Id. at 540. Wrote the court, “the Special Master was not at liberty to don blinders to the portion of the letter that contradicted his findings and then to use his selective reading to shred other evidence originating near the same time as the letter.” Id. Accordingly, the court remanded the matter to the Special Master to reconsider the record as a whole.
Regarding petitioner’s SLE, the court held that the Special Master had not erred in finding that petitioner had failed to demonstrate a proximate temporal relationship between the vaccination and the onset of her SLE. Id. at 542. The court held that the Special Master requirement that symptoms of SLE develop within two to three weeks of her vaccinations was reasonable and supported by the record. It further found that the record supported the Special Master’s finding that petitioner had “failed to demonstrate that she had SLE symptoms during the accepted temporal causation period.” Id. at 542-43. In short, “the denial of compensation in this case ... was not the result of a misapplication of the law, but rather the shortcoming in petitioner’s evidence.” Id. at 543.
On remand, the parties declined the opportunity to file additional materials. The Special Master again held that petitioner had failed to demonstrate that the vaccinations had caused her thyroid disease. Shapiro III, 2012 WL 273686. He found that petitioner had failed to meet, by a preponderance of the evidence, the proof requirements set forth in Althen, 418 F.3d at 1280. He found first, in this regard, that petitioner had failed to present a reliable medical theory causally connecting the vaccination and the injury, as required by Althen. Shapiro *358III, 2012 WL 273686, at *5. Petitioner’s expert had proposed four separate possible theories, but each one, the Special Master determined, was not only lacking in scientific support, but contradicted by more persuasive evidence provided by defendant’s expert. Id. at *5-8. The Special Master further found that petitioner had failed to show an appropriate temporal relationship between her first vaccination and the onset of her symptoms, as required by Althen. Id. at *9. According to the Special Master, defendant’s expert credibly explained that thyroid disease progresses so slowly that developing it within the first three weeks after vaccination — as petitioner did — was “simply not plausible.” Id. at *10. Finally, the Special Master held that, based upon her failure to present a reliable medical theory or an appropriate temporal relationship, petitioner could not show a logical sequence of cause and effect showing that the vaccination was the reason for the injury, the final requirement of Althen. Id. at *11.
On February 9, 2012, petitioner filed a second motion for review, together with a motion seeking reconsideration of this court’s prior ruling on petitioner’s SLE claim. On March 8, 2012, respondent filed its opposition to petitioner’s motion for review; the court did not request, and respondent did not file a response to petitioner’s motion for reconsideration. Argument on these motions is deemed unnecessary.
II. DISCUSSION
Under the Vaccine Act, this court may review a special master’s decision upon the timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)-(2). In that instance, the court may: “(A) uphold the findings of fact and conclusions of law ...; (B) set aside any findings of fact or conclusion of law ... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ..., or; (C) remand the petition to the special master for further action in accordance with the court’s direction.” Id. at § 300aa-12(e)(2)(A)-(C). Findings of fact and discretionary rulings are reviewed under an “arbitrary and capricious” standard, while legal conclusions are reviewed de novo. Munn v. Sec’y of Health and Human Servs., 970 F.2d 863, 870 n. 10 (Fed.Cir.1992); see also Doyle ex rel. Doyle v. Sec’y of Health and Human Servs., 92 Fed.Cl. 1, 5 (2010).
Within this framework, petitioner makes several basic claims. First, she asserts that the Special Master incorrectly determined that her thyroid disease began prior to her vaceinations, arbitrarily and capriciously ignoring evidence that the thyroid disease began shortly following vaccination. She also argues that the Special Master held her medical theories of causation of her thyroid disease to an impermissibly high standard of proof. Petitioner also requests that this court reconsider its earlier ruling on SLE, arguing that the evidence on the record shows that her SLE began during the appropriate time period immediately following her vaccinations.
A. Motion for Review — Hypothyroidism
Special Master Moran rejected petitioner’s claim that she developed hypothyroidism in reaction to the hepatitis-B vaccine because he found that she had not provided a persuasive medical theory causally connecting the vaccine to her condition. In this regard, the Special Master found that petitioner’s expert, Dr. Shoenfeld, had failed to demonstrate that any of the four theories of causation he offered — molecular mimicry, bystander activation through adjuvant, poly-clonal activation, and interferon alpha — could account for the hepatitis-B vaccine causing petitioner’s hypothyroidism. He also concluded that the onset of her thyroid symptoms occurred well before the medically appropriate time in which the vaccine could have been the cause.
Under what is commonly referred to as Althen’s first prong, a vaccine claimant is obliged to show a “medical theory causally connecting the vaccination and the injury.” Althen, 418 F.3d at 1278. In Simanski v. Sec’y of Health and Human Servs., 671 F.3d 1368, 1384 (Fed.Cir.2012), the Federal Circuit recently described what this standard entails—
Although a finding of causation “must be supported by a sound and reliable medical *359or scientific explanation,” causation “can be found in vaccine cases ... without detailed medical and scientific exposition on the biological mechanisms.” Knudsen v. Sec’y of the Dep’t of Health & Human Servs., 35 F.3d 543, 548-49 (Fed.Cir.1994). It is not necessary for a petitioner to point to conclusive evidence in the medical literature linking a vaccine to the petitioner’s injury, as long as the petitioner can show by a preponderance of the evidence that there is a causal relationship between the vaccine and the injury, whatever the details of the mechanism may be. Moberly [v. Sec’y of Health And Human Servs.], 592 F.3d [1315], 1325 [ (Fed.Cir.2010) ]; Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1378 (Fed.Cir.2009).
See also Porter v. Sec’y of Health and Human Servs., 663 F.3d 1242, 1249-50 (Fed.Cir. 2011); Lombardi v. Sec’y of Health and Human Servs., 656 F.3d 1343, 1351 (Fed.Cir.2011). “[T]he purpose of the Vaccine Act’s preponderance standard,” the Federal Circuit has stated, “is to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body,” even if the possible link between the vaccine and the injury is “hitherto unproven.” Althen, 418 F.3d at 1280; see Porter, 663 F.3d at 1261. Under the vaccine compensation system created by Congress, “close calls regarding causation are resolved in favor of injured claimants.” Id. (citing Knudsen, 35 F.3d at 549).
At the hearing, defendant’s expert, Dr. Ward, testified that he was unaware of any scientific or epidemiological evidence of a causal link between the hepatitis-B vaccine and thyroid disease. Petitioner’s expert, Dr. Shoenfeld, proffered four theories he claimed demonstrated that the hepatitis-B vaccine might cause autoimmune thyroid disease. On remand, the Special Master examined each of these theories in detail, weighing the scientific evidence presented by each side.
Dr. Shoenfeld’s first theory — and the one that he believed was the most plausible mechanism for the autoimmune reaction that led to petitioner’s injury — involved a biological mechanism known as “molecular mimicry.” As noted by the Special Master, “[t]his theory postulates that the molecular structure of the hepatitis B vaccine resembles the structure of thyroid tissue,” causing the body’s immune response to the vaccine to be “misdirected at its own tissue.” Shapiro III, 2012 WL 273686, at * 6. However, as defendant’s expert, Dr. Ward, pointed out, Dr. Shoenfeld’s own published work contradicts this theory, for it concludes that there is “no obvious similarity” between the hepatitis-B vaccine genome and “human proteins.” Id. (quoting Carlo Selmi et al., “Vaccines in the 21st century: the genetic response and the innocent bystander,” 4 Autoimmunity Reviews 79 (2005) at 2). As the Special Master noted, neither Dr. Shoenfeld, nor any other aspect of petitioner’s proof, addressed this earlier study. Id.
Dr. Shoenfeld’s next two theories involved “bystander activation” and “polyclonal activation,” respectively. The first of these theories suggests a reaction by the body to the aluminum salts found as an adjuvant in the hepatitis-B vaccine; the second focuses on the reaction to the vaccine experienced by individuals with a rare genetic background. In both instances, however, Dr. Shoenfeld directed his comments about these theories to SLE and not to petitioner’s autoimmune thyroid disease. And, even in this other context, the Special Master properly found that the testimony was “extremely cursory,” and contradicted by Dr. Ward’s testimony that there was no evidence supporting the application of these theories to the hepatitis-B vaccine. 2012 WL 273686, at *7-8.
Dr. Shoenfeld’s fourth and final theory implicated “interferon alpha” — part of the immune system that prevents viruses from replicating. The Special Master noted that Dr. Shoenfeld could produce no support for his theory. More importantly, he noted that Dr. Ward had convincingly observed that the hepatitis-B vaccine was incapable of inducing interferons because, unlike a virus, it “contains only a portion of the surface antigen” and thus “does not replicate.” Id. at *7. The Special Master noted that Dr. Ward supported his opinion by citing three studies in which people who were infected with the hepatitis-C virus, a disease that elicits a strong interferon response, were safely ad*360ministered the hepatitis-B vaccine. Id. & n. 9 (citing the studies). The Special Master noted that while Dr. Ward had thus given a specific reason for questioning the reliability of Dr. Shoenfeld’s “interferon alpha” theory, petitioner had provided no reason to question the reliability of Dr. Ward’s testimony. Id. at *7.
Based on his careful review, the Special Master concluded that petitioner had provided no indication that her theories accounted for her injury and no rebuttal to the countervailing evidence provided by respondent on this count. Id. at *8. Contrary to petitioner’s claims, the Special Master did not apply a causation standard more strict than that authorized by law. Cf. Porter, 668 F.3d at 1253.5 Rather, carefully examining each of these theories, the Special Master found each to be flawed and concluded that “Ms. Shapiro’s ease falls short of the preponderance of the evidence standard.” 2012 WL 273686, at *8. As has often been noted by the Federal Circuit, “ ‘reversible error will be extremely difficult to demonstrate’ where the special master ‘has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision.’ ” Porter, 663 F.3d at 1253-54 (quoting Hines v. Sec’y of Health and Human Servs., 940 F.2d 1518, 1528 (Fed.Cir.1991)); see also Lombardi, 656 F.3d at 1353. Such is the case here. Unlike his first opinion, the Special Master’s most recent opinion reveals a thorough and careful evaluation of all of the evidence, including records, tests, reports and medical literature, as well as the experts’ opinions. Weighing all this, the Special Master properly concluded that petitioner had not carried her burden of demonstrating “a medical theory causally connecting” the hepatitis-B vaccine to autoimmune thyroid disease. Shapiro III, 2012 WL 273686, at *1. The court sees no reason to overturn these well-supported findings.
Putting aside the Special Master’s findings regarding causal link, it remains that petitioner still failed to meet the proof requirements of Althen’s third prong, under which she was obliged to show a “proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278. Under this requirement, petitioner had to provide “preponderant proof that the onset of symptoms occurred within a timeframe for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer causation-in-fact.” de Bazan v. Sec’y of Health and Human Servs., 539 F.3d 1347, 1352 (Fed.Cir.2008); see also Simanski, 671 F.3d at 1384; Pafford v. Sec’y of Health and Human Servs., 451 F.3d 1352, 1358 (Fed.Cir.2006). Under this test, petitioner was first required to establish the timeframe for which it is medically acceptable to infer causation, that is, the timeframe in which symptoms would be expected to arise if the SLE was caused by the vaccination. Then, she was obliged to show that the onset of her SLE occurred during this causation period. See de Bazan, 539 F.3d at 1352 (stating, “we see no reason to distinguish between cases in which onset is too soon and cases in which onset is too late”); Campbell v. Sec’y of Health and Human Servs., 97 Fed.Cl. 650, 671 (2011).
In this regard, the Special Master found, based upon considerable evidence that, “[t]he etiology of an autoimmune thyroid disease appears to be months or years.” Shapiro III, 2012 WL 273686, at *9. And, he further found, based upon uncontradicted evidence, that “Ms. Shapiro’s manifestation of autoimmune thyroid disease occurred too quickly,” *361i.e., within two to three weeks. Id.6 Accordingly, on this basis alone, the court is compelled to sustain the Special Master’s finding that the hepatitis-B vaccine did not trigger petitioner’s injury.7
B. Motion for Reconsideration — SLE
Although petitioner seeks reconsideration of this court’s prior ruling under RCFC Appendix B (Vaccine Rules), Rule 23, it would appear that any reconsideration of this court’s ruling sustaining the Special Master’s decision regarding petitioner’s SLE claim must arise under RCFC 59.8 See Hall v. Sec’y of Health and Human Servs., 93 Fed.Cl. 239, 251-52 (2010), aff'd, 640 F.3d 1351 (Fed.Cir.), cert. denied, — U.S. -, 132 S.Ct. 815, 181 L.Ed.2d 525 (2011); see also Patton v. Sec’y of Health & Human Servs., 25 F.3d 1021, 1028-29 (Fed.Cir.1994); Waller v. Sec’y of Health and Human Servs., 76 Fed.Cl. 321, 325 (2005).
To prevail on a motion for reconsideration under RCFC 59, the movant must identify a “manifest error of law, or mistake of fact.” Fru-Con Constr. Corp. v. United States, 44 Fed.Cl. 298, 300 (1999) (quoting Bishop v. United States, 26 Cl.Ct. 281, 286 (1992)), aff'd, 250 F.3d 762 (Fed.Cir.2000); see also Alli v. United States, 86 Fed.Cl. 33, 34 (2009); Six v. United States, 80 Fed.Cl. 694, 697 (2008). Specifically, the moving party must show: (i) an intervening change in controlling law; (ii) the availability of previously unavailable evidence; or (iii) the necessity of granting the motion to prevent manifest injustice. Petro-Hunt, L.L.C. v. United States, 2012 WL 1957929, at *1 (Fed.Cl. May 30, 2012); Stovall v. United States, 86 Fed.Cl. 770, 771 (2009). The court has considerable discretion in ruling on a motion for reconsideration. See Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed.Cir.1990); see also Stovall, 86 Fed.Cl. at 771; Banks v. United States, 84 Fed.Cl. 288, 291 (2008). Nonetheless, granting such relief requires “a showing of extraordinary circumstances.” Caldwell v. United States, 391 F.3d 1226, 1235 (Fed.Cir.2004) (citation omitted), cert. denied, 546 U.S. 826, 126 S.Ct. 366, 163 L.Ed.2d 72 (2005); see also Stovall, 86 Fed.Cl. at 772; Ally 86 Fed.Cl. at 34.
Petitioner does not claim that there has been an intervening change in the law, nor does she contend that there is new evidence that was unavailable at the time of the court’s prior decision. She must, therefore, demonstrate that the denial of her motion for reconsideration would result in a manifest injustice. See Hall, 93 Fed.Cl. at 251.
In its original decision, the court held that petitioner had failed to establish that the development of her SLE occurred within the medically appropriate interval. As this court explained, “petitioner failed to demonstrate that she had SLE symptoms during the accepted temporal causation period; rather, it appears that her SLE symptoms manifested themselves months after she received her second vaccination.” Shapiro II, 101 Fed.Cl. at 543. Commenting on petitioner’s disagreement with this finding, the court adumbrated—
the denial of her SLE claim was based on the Special Master’s weighing of the evidence. Laid bare, petitioner’s arguments reflect little more than mere disagreement with the finding that petitioner failed to establish a proximate temporal relationship between the vaccination and the onset of the SLE. “‘Such naked claims,’” this *362court has stated, “ ‘by all appearances unsupported by anything in the record, fall far short of meeting the heavy burden of demonstrating that these findings were the product of an irrational process and hence arbitrary and capricious.’ ” Doyle, 92 Fed.Cl. at 7 (quoting JWK Int’l Corp. v. United States, 52 Fed.Cl. 650, 660 (2002), aff'd, 56 Fed.Appx. 474 (Fed.Cir.2003)).
Shapiro II, 101 Fed.Cl. at 543. The court went on to reject petitioner’s claim that the court should overrule the Special Master’s findings based on the contrary — albeit unsupported — conclusion of its expert, Dr. Sho-enfeld, observing that ‘“proof of causation entails more than having a well-qualified expert proclaim that the vaccination caused a disease.’ ” Shapiro II, 101 Fed.Cl. at 543 n. 15 (quoting Doyle, 92 Fed.Cl. at 8).
In Shapiro II, petitioner offered very little to rebut the Special Master’s finding that she had failed to demonstrate that her SLE symptoms arose during the accepted temporal causal period. Shapiro II, 101 Fed.Cl. at 543. And, here, petitioner offers even less in seeking reconsideration of this court’s decision upholding the Special Master’s finding. Indeed, petitioner raises nothing new, but merely reargues evidence and expert opinions that the Special Master and, in turn, this court have already rejected. For example, petitioner contends that the Special Master arbitrarily set the date of onset as the first date on which SLE was mentioned in her medical records. But, petitioner overlooks the fact that the primary deficiency in her proof on this count was the absence of any evidence indicating that her SLE symptoms began during the appropriate time period following her vaccinations. To the extent that petitioner argues otherwise, her factual allegations are no more compelling this — the third — time around. No manifest injustice has been demonstrated and reconsideration, therefore, is not in order.
III. CONCLUSION
This court need go no further. For the foregoing reasons, the court DENIES petitioner’s motion for review, as well as her motion for reconsideration.9
IT IS SO ORDERED.
. As the basic facts here have not changed significantly, the court's recitation of the background facts here draws from its earlier opinion in Shapiro II.
. As noted by the Special Master in his opinion, Dr. Shoenfeld "has written more than 1,500 articles in peer-reviewed journals and more than 20 books, one of which includes the 'first trial in the world to compile the diagnostic criteria for more than 100 different autoimmune diseases.’ Dr. Shoenfeld also served as editor and founder of the journal, Autoimmunity Reviews.” Shapiro I, 2011 WL 1897650, at *2.
. Regarding petitioner’s SLE claim, the Special Master further observed:
Ms. Shapiro’s second theory for compensation asserted that she developed SLE within three weeks after her second dose or third dose of the hepatitis B vaccine. Ms. Shapiro has established that a medically appropriate interval for the development of SLE is within three weeks of a vaccination. But, Ms. Shapiro did not experience problems linked to SLE within three weeks following her second or third dose. Although the record shows that Ms. Shapiro may have developed SLE, this onset was outside the time expected by medical science.
Shapiro I, 2011 WL 1897650, at *16.
. The Special Master’s approach was consistent with the Federal Circuit's recent decision in Simanski, 671 F.3d at 1384. In that case, the special master dismissed the case prior to receiving any evidence from the respondent because plaintiff's expert had failed to produce "a clearly articulated theory” of how the vaccines in question caused the petitioner’s illness, including "identification and proof of specific biological mechanisms.” Id. The court found this standard “too demanding,” holding that a petitioner need only present a "sound and reliable” medical theory and demonstrate by a “preponderance of the evidence that there is a causal relationship between the vaccine and the injury,” even if there is no "conclusive evidence in the medical literature” linking the vaccine to the injury. Id. In the case sub judice, the Special Master merely required that the theories be reliable and meet the preponderance of the evidence standard. He found each of Dr. Shoenfeld's explanations lacking in this regard, based upon major gaps and flaws in those theories, and instead was persuaded by Dr. Ward’s contradicting testimony.
. Petitioner implies that it was her SLE, not her thyroid disease, that caused the symptoms that began shortly after her first vaccination. But, in other portions of her briefs, she admits to experiencing symptoms of hypothyroidism during this same period. For his part, Dr. Shoenfeld cited the constipation and palpitations that petitioner experienced shortly after her first vaccination as "very classical to ... autoimmune thyroid disease.” He indicated further that petitioner’s constipation was not symptomatic of SLE. The record thus supports the Special Master's finding that the onset of petitioner's autoimmune thyroid disease does not arise at a time that can be explained as being a reaction to her first hepatitis-B vaccination.
. The Special Master gave additional reasons for this conclusion. Based upon its other conclusions, the court need not further examine that analysis here.
. Vaccine Rule 36 discusses motions for reconsideration filed “after the entry of judgment” and is seemingly inapplicable here. See also Vessels v. Sec'y of Health & Human Servs., 65 Fed.Cl. 563 (2005).
. This opinion shall be unsealed, as issued, after July 5, 2012, unless the parties, pursuant to Vaccine Rule 18(b), identify protected and/or privileged materials subject to redaction prior to that date. Said materials shall be identified with specificity, both in terms of the language to be redacted and the reasons therefor. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218277/ | *367
OPINION AND ORDER
GEORGE W. MILLER, Judge.
Plaintiff, Wildflower International, Ltd. (“Wildflower”), filed this pre-award bid protest action against defendant, the United States, on November 3, 2011. See Compl. (docket entry 1). Wildflower challenges the Department of Homeland Security (“DHS”), Customs and Border Protection’s (“CBP”) decision to terminate Wildflower’s delivery order for convenience and to repost a revised Request for Quotes (“RFQ”) as part of CBP’s “corrective action” with respect to perceived problems with the conduct of the initial procurement pursuant to the initial RFQ. For the following reasons, defendant’s motion to dismiss based on lack of jurisdiction, standing, and ripeness is DENIED; defendant-intervenor Govplace Inc.’s (“Govplace”) motion to dismiss based on lack of jurisdiction is DENIED; Wildflower’s motion for judgment on the administrative record is DENIED; and defendant’s and Govplaee’s motions for judgment on the administrative record are GRANTED (docket entry 33, Dee. 6, 2011; docket entry 34, Dec. 6, 2011; docket entry 38, Dec. 9, 2011; docket entry 53, Feb. 7, 2012; docket entry 54, Feb. 7, 2012).
I. Background
The procurement at issue deals with the delivery, installation, and support of Local Area Network (“LAN”) switches and related equipment for numerous CBP facilities under DHS’s FirstSource contract, a multiple-award, indefinite-delivery/indefinite-quantity contract. See Administrative R. (“AR”) Tab A, at 4; AR Tab B, at 56, 258; AR Tab E, at 649. Wildflower and Govplace are prime contractors under the FirstSource contract. See AR Tab F, at 726-27. The purpose of the FirstSource contract is to provide DHS with the ability to purchase information technology “commodity products (hardware and software) and associated services.” AR Tab E, at 649.
CBP used a “reverse auction” on a website called FedBid to fill the delivery order at issue. See AR Tab B, at 56. The First-Source Ordering Guide describes FedBid as “[a]n online reverse auctioning tool where buyers can procure commodity-type commercial items and satisfy competition, publicizing, and reporting requirements.” AR Tab F, at 747. A vendor cannot view the price or name of other vendors during the bidding period, but knows whether its price “leads” or “lags.” Def.’s Mot. to Dismiss, or in Alternative, for J. upon Administrative R. (“Def.’s Mot.”) 6-7 (internal quotation marks omitted). A vendor can reduce its bid and underbid another vendor until the bidding period closes. Id. FedBid allows vendors to ask questions directly to the contracting officer during the bidding period and allows the contracting officer to respond directly to the vendor that submitted the question. AR Tab B, at 56. “Vendors can only view other vendor’s questions and answers if these questions and answers are posted as an attachment to the RFQ.” AR Tab B, at 56-57; see also AR Tab B, at 69, 73.
A. Initial RFQ and Award to Wildflower
The initial RFQ — RFQ 20064082 — was posted on FedBid on August 24, 2011, with the bidding period ending on August 31, 2011, which was later extended to September 6, 2011. AR Tab B, at 66-70, 219, 508.
The RFQ indicated that the delivery order would be awarded to the offeror whose past performance did not pose a risk and whose offer was the lowest priced and technically acceptable. AR Tab B, at 69. Technical acceptability meant the “technical capabilities conform to the Government’s Statement of Work or listed specs whichever is applicable to the buy.” Id. Delivery was required approximately eighteen months from the time of award. Id. The RFQ called for “[bjrand [njame [Cisco] or [e]qual” equipment. AR Tab B, at 68. Vendors were instructed that they could “submit bids for alternate items, provided those items [met] all of the salient physical, functional, or performance characteristics specified by this solicitation.” Id. The FirstSource contract requires hardware and software “that are factory-installed and ready for immediate use,” unless otherwise provided in the delivery order. AR Tab E, at 658.
*368The Statement of Work (“SOW”) required some of the equipment to have “functionality” with, inter alia, the so-called “802.1ae” standard. See AR Tab B, at 110. According to defendant, 802.1ae is a standard developed by the Institute of Electrical and Electronic Engineers that specifies protocols to meet security requirements. At issue in this action is whether the solicitation was ambiguous as to whether an offeror was required to be technically compliant with 802. lae at the time of award or at some later time during the eighteen-month performance period.
By the end of the bidding period, on September 6, 2011, four bids had been submitted by FirstSource contractors. AR Tab B, at 66. Wildflower submitted the lowest bid at approximately $5.1 million, and Govplace submitted the highest bid at approximately [* * *]. Id.
The technical evaluator at first found Wildflower’s offer to be technically unacceptable because, inter alia, he believed that the initial SOW required the awardee’s equipment to be technically compliant at the time of award, and three of Wildflower’s proposed switches would not become technically compliant until the last quarter of 2012. See AR Tab B, at 180, 548. CBP told Wildflower that some of Wildflower’s “devices do not meet the requirement to support 802.1AE. While the support is enabled in hardware, the software required to support this requirement will not be available till 4th quarter 2012.” Id.
In response, Wildflower pointed to a question-and-answer exchange in which CBP had suggested that an offeror could propose equipment that would meet CBP’s technical requirements by the end of the eighteen-month performance period. See AR Tab B, at 189, 550; see also AR Tab B, at 147, 150. Wildflower’s question stated:
802.1AE is an open standard that is not widely enabled in the industry. While most hardware will support 802.1AE when there is further software development and released in the next year [sic]. By requiring that this specification be enabled at the time of contract award, the Government is effectively limiting competition to CISCO and creating a sole source procurement.
AR Tab B, at 150. In its answer, CBP identified Juniper as a producer of non-Cisco equipment that “has this capability and will be released in its next scheduled software release.” AR Tab B, at 546. In its response to CBP’s letter identifying technical issues, Wildflower wrote: “Based on the government response, Wildflower bid a solution that is compliant. Please note that the government specifically called out Juniper products with future releases as being acceptable. In reliance upon the government representation Wildflower bid the Juniper product.”1 AR Tab B, at 189. The parties dispute whether this question-and-answer exchange was shared with other offerors. See infra Part IV.A.
Wildflower also pointed to a public question and answer in which a bidder had asked if CBP expected an “equal amount of work” performed each month over the eighteen-month period. CBP responded: “The Offer- or has the responsibility and flexibility to design the schedule in the most cost effective manner it can so long as it is executed in the time allocated. The creation of the schedule is the Offeror’s responsibility.” AR Tab B, at 189; see AR Tab B, at 135.
After reviewing Wildflower’s response, the technical evaluator indicated that CBP could accept Wildflower’s bid if Wildflower “were to be contractually liable to retrofit the installation of th[e] equipment within the contract award time at no cost to the Government.” AR Tab B, at 204. CBP asked Wildflower, “Are you agreeing to start installation upon time of award and then retrofit the installed equipment at no cost to the Government when the 802. lae software capability is available in 4th quarter of 2012?” AR Tab B, at 215, 555. Wildflower responded in the affirmative. Id.
In light of the foregoing exchange, the technical evaluator found Wildflower’s offer *369technically acceptable and, on September 17, 2011, Wildflower was awarded the delivery order. See AR Tab B, at 214, 219, 223. The e-mail exchange between CBP and Wildflower reflecting Wildflower’s agreement to retrofit compliant equipment at no cost to the Government was attached to the delivery order. See AR Tab B, at 286. Wildflower’s price was disclosed to the other offerors through FedBid sometime between September 17, 2011, when Wildflower was awarded the delivery order, AR Tab B, at 58, 223, and September 19, 2011, when Govplace submitted a letter to CBP expressing concern over a “possible error” in the procurement process. AR Tab B, at 371-73; see AR Tab B, at 58, 588.
B. Termination for Convenience of Wildflower’s Delivery Order and Resolici-tation with Revised SOW
On September 19, 2011, Govplace sent a letter to the ombudsman for the Firsts ouree contract, see AR Tab D, at 646 (naming the ombudsman for CBP’s task and delivery orders); AR Tab E, at 677, 732, which pointed out a “possible error” in the technical evaluation. AR Tab B, at 372. Govplace stated that “[i]t appears that the government is accepting a technical solution that does not conform to a material government need.” Id. Govplace stated that at the time of the procurement only Cisco equipment, which Govplace had proposed, could satisfy the 802.1ae requirement. Govplace apparently believed that technical compliance was required at the time of award.
Following two meetings attended by the ombudsman, the contracting officer, the contracting specialist, and the technical evaluator on September 20, 2011 (the day after Govplace’s September 19, 2011 letter), the contracting officer decided to terminate Wildflower’s delivery order for convenience and reissue the RFQ with a revised SOW. The contracting officer’s rationale for taking such action was that the initial solicitation was ambiguous with respect to whether an awardee’s equipment was required to be 802.1ae compliant at the time of award or could come into compliance during the eighteen-month performance period. In a September 23, 2011 memorandum for the record, the contracting officer stated:
The facts of the solicitation and technical evaluation was [sic] discussed [at the two meetings] and the conclusion that resulted was that the solicitation was not clear on when an offeror had to be fully 802.1ae compliant and this change was significant enough to Terminate for the Convenience of the Government the Wildflower International award, ... change the Statement of Work to clarify when full compliance of 802.1ae function was required and resolieit this requirement with the revised Statement of Work.
AR Tab B, at 395. The administrative record also contains e-mails preceding the contracting officer’s decision to take what defendant refers to as “corrective action” in which CBP and DHS personnel discussed such matters as the specific language to include in the revised SOW to clarify the ambiguity, the revised publicly posted questions and answers, and the delivery schedule that would result from the changes to the RFQ. See AR Tab B, at 389-90, 397, 400-01, 406-07, 416-17, 450.1-.3, 453-55, 457-64, 466, 468-71, 473-74, 476-77, 479-81, 483-84.
On the afternoon of September 20, 2011, Wildflower was informed of the termination of its delivery order by phone and in a letter attached to an e-mail. See AR Tab G, at 773. On September 21, 2011, CBP e-mailed Wildflower a letter with instructions on how to request termination costs.2 AR Tab H, at 774. Pursuant to amendment number P00001, Wildflower’s delivery order was formally amended to terminate the order for the convenience of the Government on September 23, 2012.3 AR Táb B, at 369; see AR Tab B, at 395.
*370On September 21, 2011, CBP issued the second RFQ — RFQ 2006687 — with a revised SOW. AR Tab A, at 4; AR Tab B, at 59-60, 596. The revised SOW differed from the initial SOW in the following respects. First, the revised SOW expressly provided that CBP would “deem a solution technically compliant if the 802. lae functionality [was] fully operational (in software) by 2 January, 2013.” AR Tab A, at 10 (emphasis omitted). An offeror proposing a solution that was not technically compliant at the time of the award was required to provide documentation demonstrating that it would be compliant by January 2, 2013. Second, the SOW’s description of the equipment requiring 802. lae functionality was updated to explain that functionality was required to be achieved by January 2013. See AR Tab A, at 11-14. Third, the awardee was required to provide, within forty-five days, a plan for replacing the switches and related equipment and to begin executing that plan within ninety days from the date of contract award. See AR Tab A, at 5. The questions and answers attached to the revised SOW referenced the provision that explained that 802.1ae functionality could be achieved by January 2013. See AR Tab B, at 634-35.
The bidding period for the revised RFQ was approximately twenty-four hours. See AR Tab B, at 59-60. The same four offerors submitted bids in response to the second RFQ. Govplace proposed the lowest price, approximately [* * *], a significant reduction from its initial price of approximately [* * *]. AR Tab B, at 66; AR Tab J, at 781. Wildflower submitted the third lowest bid at [* * *], AR Tab J, at 781, [* * *] as its original bid of $5,076,806.91. AR Tab B, at 66. Govplace proposed Cisco equipment and does not appear to have changed its technical proposal in response to the resolicitation. See AR Tab J, at 809.
On September 22, 2011, before bidding closed, Wildflower filed a protest with the Government Accountability Office (“GAO”). See AR Tab B, at 488. In the GAO protest, Wildflower alleged that (1) CBP’s termination of Wildflower’s delivery order was arbitrary and unreasonable; (2) CBP’s decision to resolicit the LAN equipment requirement was unreasonable and unfair; (3) CBP resolicited the RFQ in order to award the delivery order to CBP’s preferred vendor, which was unreasonable, an abuse of discretion, and contrary to law; and (4) Cisco should be excluded from the competition due to conflicts of interests. Wildflower withdrew its GAO protest on November 3, 2011 before responding to CBP’s agency report. AR Tab C, at 644.
Aso on November 3, 2011, Wildflower initiated this action, challenging the termination for convenience of its delivery order and the reissuanee of the RFQ with a revised SOW. Defendant has moved to dismiss based on lack of jurisdiction, standing, and ripeness pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). Gov-place has filed a motion to dismiss based on lack of jurisdiction pursuant to RCFC 12(b)(1). Wildflower has filed a motion for judgment on the administrative record pursuant to RCFC 52.1. Both defendant and Govplace filed motions for judgment on the administrative record pursuant to RCFC 52.1. The Court heard oral arguments on January 27, 2012 and March 14, 2012. See Hr’g, Wildflower Int’l, Ltd. v. United States, No. 11-734 (Fed.Cl. Jan. 27, 2012) (hereinafter “Jan. 27, 2012 Hr’g”); Hr’g, Wildflower Int’l, Ltd. v. United States, No. 11-734 (Fed.Cl. Mar. 14, 2012) (hereinafter “Mar. 14, 2012 Hr’g”). The March 14, 2012 oral argument was principally devoted to the issue whether this court has subject matter jurisdiction over plaintiffs action.
II. Subject Matter Jurisdiction
“Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, *371463 U.S. 1, 9-10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). When considering a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the court assumes the truth of all undisputed facts as alleged in the complaint and draws all reasonable inferences in the non-movant’s favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed.Cir.2006).
“[Ojnce the ... court’s subject matter jurisdiction [is] put in question it [is] incumbent upon [the plaintiff] to come forward with evidence establishing the court’s jurisdiction.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). The plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” George Family Trust ex rel. George v. United States, 91 Fed.Cl. 177, 189 (2009) (quoting Reynolds, 846 F.2d at 748) (internal quotation marks omitted).
A The Federal Acquisition Streamlining Act’s Limitation on Protests of Civilian Agency Task or Delivery Orders Did Not Bar Wildflower’s Action When It Was Filed in November 2011 Because the Limitation Expired on May 27, 2011
In 1994, Congress passed the Federal Acquisition Streamlining Act (“FASA”), Pub.L. No. 103-355, 108 Stat. 3243. FASA contained a provision stating that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.” FASA, § 1054, 108 Stat. at 3264 (codified as amended at 41 U.S.C. § 4106(f)). That provision pertained to the issuance or proposed issuance of task or delivery orders by civilian agencies. FASA also contained a provision limiting protests of defense agency task or delivery orders. See FASA, § 1004, 108 Stat. at 3253 (codified as amended at 10 U.S.C. § 2304c(e)).
Initially, it was not entirely clear whether FASA’s limitation applied to civil actions in this court. See A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126, 133 (2006); Labat-Anderson Inc. v. United States, 50 Fed.Cl. 99, 105 (2001). Since that time, the courts have interpreted FASA’s limitation, which refers to “a protest,” as applying to actions in the Court of Federal Claims. See, e.g., A & D Fire Prot., Inc., 72 Fed.Cl. at 133 (“This court cannot frustrate the intent of Congress_ In the place of agency protests, [GAO] protests or judicial review, Congress saw fit to offer disappointed task order bidders recourse to the agency’s task and delivery order ombudsman.”).
The Court of Federal Claims has held that FASA’s limitation on protests of task or delivery orders is jurisdictional. See, e.g., Solute Consulting v. United States, 103 Fed.Cl. 783, 794 (2012); Furniture by Thurston v. United States, 103 Fed.Cl. 505, 511 n. 8 (2012); MORI Assocs., Inc. v. United States, 102 Fed.Cl. 503, 541 (2011); MED Trends, Inc. v. United States, 102 Fed.Cl. 1, 4-5 (2011); DataMill, Inc. v. United States, 91 Fed.Cl. 740, 762 (2010); Global Computer Enters., Inc. v. United States, 88 Fed.Cl. 350, 409 (2009), modified on other grounds by 88 Fed.Cl. 466 (2009); A & D Fire Prot., Inc., 72 Fed.Cl. at 133 n. 7.
In 2008, as part of the National Defense Authorization Act for Fiscal Year 2008 (“2008 NDAA”), Congress authorized protests of civilian agency task or delivery orders valued in excess of $10 million and gave GAO exclusive jurisdiction to hear such protests. Pub.L. No. 110-181, § 843(b)(2)(C), 122 Stat. 3, 239 (codified as amended at 41 U.S.C. § 4106(f)). Congress also added a three-year sunset date. The provision in the 2008 NDAA governing protests of civilian agency task or delivery orders read as follows:
(e) PROTESTS. — (1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for—
(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
*372(B) a protest of an order valued in excess of $10,000,000.
(2) Notwithstanding section 3556 of title 31, United States Code, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).
(3) This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.
Id. The 2008 NDAA was enacted on January 28, 2008. Accordingly, paragraph (3) provided that “this subsection” would expire on May 27, 2011. The 2008 NDAA made similar amendments to the provision limiting protests of defense agency task or delivery orders. See 2008 NDAA, § 843(a)(2)(C), 122 Stat. at 237 (codified as amended at 10 U.S.C. § 2304c(e)).
In January 2011, before the sunset date, Congress extended the sunset date with respect to the FASA provision limiting the protests of defense agency task or delivery orders. See Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (“2011 NDAA”), Pub.L. No. 111-383, § 825, 124 Stat. 4137, 4270 (codified as amended at 10 U.S.C. § 2304c(e)). The amended sunset provision identified the paragraphs to which it applied: “(3) Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.” Id. (emphasis added).
May 27, 2011 came and went without an extension of the sunset date with respect to the provision limiting protests of civilian agency task or delivery orders. This raised the question whether paragraph (3) of 41 U.S.C. § 4106(f), which provided that “this subsection” would expire, referred to the entire subsection (f) of § 4106 or only to paragraphs (1)(B) and (2) — whether the sunset date caused the limitation on protests of civilian agency task or delivery orders to expire on May 27, 2011 or caused only the authorization of protests of orders valued in excess of $10 million and the GAO’s exclusive jurisdiction over such protests to expire.
In November 2011, Wildflower filed this bid protest action challenging a civilian agency delivery order in the Court of Federal Claims, after having withdrawn its protest at GAO. It is undisputed that Wildflower’s protest is neither a protest of an order valued in excess of $10 million nor a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued. After Wildflower filed this action in November 2011, the president on December 31, 2011 signed the National Defense Authorization Act for Fiscal Year 2012 (“2012 NDAA”), Pub.L. No. 112-81, 125 Stat. 1298 (2011). The 2012 NDAA extended the sunset date in paragraph (3) of 41 U.S.C. § 4106(f) and amended the language of paragraph (3) so that it stated to which paragraphs the sunset date applied: “(3) EFFECTIVE PERIOD.— Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.” 2012 NDAA, § 813, 125 Stat. at 1491. Whereas the sunset date in the 2008 NDAA applied to “this subsection,” the paragraph containing the sunset date as amended by the 2012 NDAA referred only to the authorization of protests of orders valued in excess of $10 million and GAO’s exclusive jurisdiction over such protests.
Based on the plain and unambiguous language of the 2008 NDAA, the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011. See MORI Assocs., 102 Fed.Cl. at 536-37; see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (“[W]here the statutory language provides a clear answer, [the court’s analysis] ends there_”); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ ” (citations omitted) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981))); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). In this case, relying on the plain and unambiguous language does not lead to an absurd result. *373See MORI Assocs., 102 Fed.Cl. at 539-40. The legislative history of the 2008 NDAA does not embody an extraordinary showing of intentions contrary to the plain and unambiguous language of the statute. See Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 395 (Fed.Cir.1990) (“[T]he legislative history should usually be examined at least ‘to determine whether there is a clearly expressed legislative intention contrary to the statutory language.’ ” (quoting Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed.Cir.1989))).
Defendant and Govplaee ask the Court to depart from the plain and unambiguous language of the 2008 NDAA in light of statutes enacted subsequent to the 2008 NDAA and their legislative history — specifically, the 2012 NDAA and the 2012 NDAA’s legislative history as well as the 2011 NDAA. “The question of how much weight a court should accord to subsequent legislation and subsequent legislative history is one that has troubled many judges throughout the years.” In re Conner Home Sales Corp., 190 B.R. 255, 259 (E.D.N.C.1995). “[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 4 L.Ed.2d 334 (1960).
The Federal Circuit has observed that “[t]here appears to be some confusion as to the role of later statutes in interpreting earlier ones.”4 Thompson v. Cherokee Nat. of Okla., 334 F.3d 1075, 1092 (Fed.Cir.2003), aff'd sub nom. Cherokee Nat. of Okla. v. Leavitt, 543 U.S. 631, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005). The Federal Circuit has also explained “there appears to be general agreement that a later statute cannot be read as clarifying the meaning of an earlier statute where the earlier statute is unambiguous and the later statute is ambiguous.”5 Id. at 1092. The Supreme Court affirmed the Federal Circuit, specifically rejecting the use of a later statute to interpret earlier ones because the earlier statutes were not ambiguous. Cherokee Nat. of Okla., 543 U.S. at 646-47, 125 S.Ct. 1172.
Here, as discussed supra, the plain and unambiguous language of the 2008 NDAA makes clear that the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011. The statutes enacted subsequent to the 2008 NDAA are ambiguous with respect to whether subsequent Congresses believed that the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011.
In January 2011, before the enactment of the 2012 NDAA, Congress enacted two other statutes.
In one, the provision relating to defense contracts was changed to sunset in 2016 the subparagraph authorizing task order protests exceeding $10 million, and the GAO’s exclusive authority over them. In the other, Congress expressly stated its reeodification of title 41 [, which included the limitation on protests of civilian ageney task or delivery orders,] was intended to conform to the original intent of the enacting Congresses, with corrections to address ambiguities, and its only change to the FASA sunset was the housekeeping insertion of the actual date of passage.
*374MORI Assocs., 102 Fed.Cl. at 541 (citations omitted). These statutes are ambiguous — if not irrelevant — with respect to the issue whether the 111th Congress believed that the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011.
With the 2012 NDAA, the 112th Congress amended paragraph (3) of § 4106(f), which relates to protests of civilian agency task and delivery orders, by inserting the following paragraph: “(3) EFFECTIVE PERIOD. — Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.” The parties have proffered at least two ways that the 2012 NDAA’s amendment to the paragraph containing the sunset date can be interpreted as it relates to the paragraph containing the sunset date in the 2008 NDAA.
One could conclude from the 2012 NDAA, as Wildflower does, that the 112th Congress believed that FASA’s limitation on protests of civilian agency task or delivery orders expired in May 2011. Stated differently, the perceived need to state to which paragraphs the 2012 NDAA sunset date applied shows that Congress understood that the sunset date in the 2008 NDAA caused the entire subsection (f) to expire, not only the provision authorizing protests of orders valued in excess of $10 million and GAO’s exclusive jurisdiction over such protests. Pl.’s Resp. to Def.’s & Intervenor’s Mots, to Dismiss for Lack of Jurisdiction (“Pl.’s Supplemental Resp.”) 8-9 (citing MED Trends, Inc., 102 Fed.Cl. at 6) (docket entry 55, Feb. 15, 2012).
However, one could also argue, as defendant and Govplace do, that the 2012 NDAA shows the 112th Congress believed that the 2008 NDAA sunset date did not affect the entirety of subsection (f). According to defendant and Govplace, the 2012 NDAA only addressed the authorization of protests of orders valued in excess of $10 million and GAO’s exclusive jurisdiction over such protests. Because the 2012 NDAA did not address the limitation on protests or the authority of the Court of Federal Claims to hear protests of task and delivery orders related to the scope, period, or maximum value of the underlying contract, Congress must have assumed that these two provisions remained in effect. See Def.-Intervenor’s Mot. to Dismiss for Lack of Subject Matter Jurisdiction (“Def.-Intervenor’s Supplemental Mot.”) 4-5; Def.-Intervenor’s Reply to Pl.’s Resp. to Def.-Intervenor’s Mot. to Dismiss (“Def.-Intervenor’s Supplemental Reply”) 2-6 (docket entry 60, Feb. 27, 2012); Def.’s Mot. to Dismiss (“Def.’s Supplemental Mot.”) 8; Def.’s Reply in Supp. of Its Mot. to Dismiss (“Def.’s Supplemental Reply”) 6-8 (docket entry 67, Mar. 7, 2012); Mar. 14, 2012 Hr’g at 10:05:35.
As demonstrated by the parties’ arguments above, the 2012 NDAA is ambiguous with regard to the scope of the sunset provision in the 2008 NDAA. Because the language of the earlier statute is plain and unambiguous, this case does not present an occasion to depart from the plain meaning of the earlier statute based on subsequent enactments. See Thompson, 334 F.3d at 1092.
With regal’d to subsequent legislative history, defendant and Govplace cite Senate and House reports on the 2012 NDAA to suggest that some members of the 112th Congress believed that the limitation on protests of civilian agency task or delivery orders did not expire on May 27, 2011. See Def.’s Supplemental Mot. 8; Def.’s Supplemental Reply 12; Def.-Intervenor’s Supplemental Mot. 4; Def.-Intervenor’s Supplemental Reply 4, 8. For example, defendant and Govplace cite a report by the House Committee on Armed Services that stated that the 2008 NDAA had “temporarily expanded the [GAO’s] jurisdiction to hear bid protests by authorizing it to hear protests on task and delivery orders valued in excess of $10.0 million” and that “[t]he authority was provided with a sunset in 2011 in order to allow Congress to evaluate the effectiveness of the expanded jurisdiction and gauge the impact of increased workload on GAO.” H.R.Rep. No. 112-78, at 171-72 (2011); see also S.Rep. No. 112-16, at 3 (2011).
The Court is not persuaded that the legislative history of subsequent enactments sheds significant light on the meaning of the 2008 NDAA. See, e.g., MORI Assocs., Inc., 102 Fed.Cl. at 541 (finding that subsequent legislative history did not control the meaning of the 2008 NDAA). The language of the *3752008 NDAA is clear. Additionally, subsequent legislative history is less weighty than subsequent statutes in interpreting the meaning of an earlier statute. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n. 13, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). Moreover, as the Supreme Court has stated, “[E]ven when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment.” Id.
For these reasons, when Wildflower’s action was filed in November 2011, the limitation on protests of civilian agency task or delivery orders did not bar Wildflower’s bid protest action because the limitation had expired.
B. The Restored Limitation on Protests of Civilian Agency Task or Delivery Orders Pursuant to the 2012 NDAA Does Not Divest this Court of Jurisdiction Over Wildflower’s Bid Protest Action that Was Pending When the 2012 NDAA Was Enacted
1. The Supreme Court Has Established a Framework for Analyzing Whether a Statute Is Retroactive
Defendant and Govplace argue in the alternative that, even if the limitation had expired, the 2012 NDAA “resurrected” or “reinstated” the limitation on protests of civilian agency task or delivery orders. This limitation, defendant and Govplace argue, withdraws jurisdiction over actions, such as this one, that were pending when the 2012 NDAA was enacted. Def.’s Supplemental Mot. 8-9; Def.’s Supplemental Reply 13 n. 4; Def.-Intervenor’s Supplemental Mot. 5-7; Def.-Intervenor’s Supplemental Reply 6-8. The parties agree that the relevant statutory language is “[a] protest is not authorized.” 41 U.S.C. § 4106(f).
The Supreme Court has held that “a court is to apply the law in effect at the time it renders its decision.” Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). The Court has also held that “[r]etroactivity is not favored in the law” and that “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.”6 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The Supreme Court has often stated that there exists a presumption against retroactivity. Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.”).
The Supreme Court has developed a two-step framework to analyze whether a statute is retroactive.7 See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). First, the court must assess “whether Congress has expressly prescribed the statute’s proper reach.” Id. (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483) (internal quotation marks omitted). If Congress has not provided an express statement in the statute regarding its reach, the court should “try to draw a comparably firm conclusion about the temporal reach specifically intended by applying ‘our normal rules of construction.’ ”8 Id. (quoting Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, *376138 L.Ed.2d 481 (1997)); accord INS v. St. Cyr, 533 U.S. 289, 316-17, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
If the statute’s temporal reach is not resolved at the first step, the court then turns to the second step of the retroactivity analysis. At this step, the court seeks to determine “whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of ‘affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment.’” Fernandez-Vargas, 548 U.S. at 37, 126 S.Ct. 2422 (alterations in original) (quoting Landgraf, 511 U.S. at 278, 114 S.Ct. 1483).
A statute does not operate retroactively simply “because it is applied in a case arising from conduct antedating the statute’s enactment or upsets expectations based in prior law.” Landgraf, 511 U.S. at 269, 114 S.Ct. 1483 (citation omitted). “Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Id. at 269-70, 114 S.Ct. 1483. The determination that a statute operates retroactively “comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.”9 Id. at 270, 114 S.Ct. 1483.
If the court determines that a statute has a retroactive effect at the second step, the presumption against retroactivity is triggered and the statute will not apply to events or transactions occurring before its enactment absent clear congressional intent to the contrary. Id. at 280, 114 S.Ct. 1483; see Rodriguez v. Peake, 511 F.3d 1147, 1153 (Fed.Cir.2008).
2. Step One of the Retroactivity Analysis: The Language “A Protest Is Not Authorized ” Sufficiently Evidences the Prospective Reach of the Restored Limitation on Protests of Civilian Agency Task or Delivery Orders
At the first step of the retroactivity analysis, the Court must determine whether Congress has expressly stated the statute’s temporal reach. Here, the statute does not contain a specific statement that Congress desired the statute to apply retroactively. In fact, no party has contended that the 2012 NDAA expressly addresses the effect of § 4106(f) on pending actions. Because Congress has not provided an express statement, the Court must “try to draw a comparably firm conclusion about the temporal reach specifically intended by applying ‘our normal rules of construction.’” Fernandez-Vargas, 548 U.S. at 37, 126 S.Ct. 2422 (quoting Lindh, 521 U.S. at 326, 117 S.Ct. 2059).
In applying the normal rules of statutory construction, one must first consider the meaning of the verb phrase, “is not authorized,” which follows the subject, “a protest.” 41 U.S.C. § 4106(f)(1). This formulation is in the passive voice, meaning that the subject is acted upon rather than acting. See The University of Chicago, Chicago Manual of Style para, 5.115 (16th ed. 2010) (“Voice shows whether the subject acts (active voice) or is acted on (passive voice)_”).10 Accordingly, a protest is the thing not authorized.
The Oxford English Dictionary defines “authorize” as a verb meaning, inter alia, “[t]o give legal or formal warrant to (a person) to do something; to empower, permit authoritatively.” The Compact Oxford English Dictionary 799 (2d ed. 1997). Black’s Law Dictionary similarly defines the term as a verb meaning “[t]o give legal authority; to empower” and “[t]o formally approve; to *377sanction.” Black’s Law Dictionary 153 (9th ed. 2009). Accordingly, to say that something is not authorized means that the thing is not “empower[ed],” is not “permitted] authoritatively,” is not “formally approved,” and is not “sanctioned.” Here, as noted, that thing is “a protest.”
Conspicuously omitted from the statute’s language is a phrase following “authorized” indicating what a protest is not authorized to do or have done to it (e.g., to be filed, to be maintained, to be brought), as The Oxford English Dictionary definition suggests. Accordingly, the Court must look elsewhere in the statute to determine what, specifically, is not authorized. On this point, the definition of “protest” itself is instructive.
“Protest” is used as a singular noun in paragraph (1) of § 4106(f) — “[a] protest is not authorized.” 41 U.S.C. § 4106(f)(1). “Protest” is also used as a singular noun in the other paragraphs of the subsection. See 41 U.S.C. § 4106(f)(1)(A) (authorizing “a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued”); id. § 4106(f)(1)(B) (authorizing “a protest of an order valued in excess of $10,000,000”); id. § 4106(f)(2) (“Notwithstanding section 3556 of title 31, the Comptroller General shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).”).
The parties agree that “protest” is not defined for purposes of § 4106(f). If a statute does not define a term, the courts “give the phrase its ordinary meaning.” Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 1270, 176 L.Ed.2d 1 (2010). Black’s Law Dictionary defines the noun protest as “[a] formal statement or action expressing dissent or disapproval.” Black’s Law Dictionary 1344 (9th ed. 2009). The Competition in Contracting Act (“CICA”) similarly defines “protest” as “a written objection by an interested party.” 31 U.S.C. § 3551(1); see Technatomy Corp., B- 405130, 2011 WL 2321836, at *4 (Comp.Gen. June 14, 2011) (employing CICA’s definition of protest in GAO’s analysis of § 4106(f)). When CICA’s definition is adopted, the provision could be read as stating that “[a written objection by an interested party] is not authorized in connection with the issuance or proposed issuance of a task or delivery order.” The provision could be read similarly if Black’s Law Dictionary’s definition is relied upon.
Reading § 4106(f) as stating that “[a written objection by an interested party or a formal statement or action expressing dissent or disapproval] is not authorized” means that a filing by a party with GAO or the court is not authorized. If “a filing” — read as a noun — is not authorized, it is necessarily implied that the act of filing-read as the verb “to file” — is not authorized. See Technatomy Corp., 2011 WL 2321836, at *4 (“[T]he prohibition of protests in the 2008 NDAA, which states that ‘[a] protest is not authorized,’ can only be reasonably interpreted as meaning a protest may not be filed.” (second alteration in original)).
Because § 4106(f) provides that a filing is not authorized, the statute sufficiently evidences its prospective reach and that it does not affect a court’s jurisdiction over the action of a party, such as Wildflower, that filed its action before the subsequent statute took effect.11 See Kevcon, Inc., B- 406418, 2012 *378WL 759325, at *3 (Comp.Gen. Mar. 7, 2012); Standard Commc’ns, Inc., B- 406021, 2012 WL 474550, at *2 (Comp.Gen. Jan. 24, 2012). Here, because Wildflower filed its action before the limitation on protests of civilian agency task or delivery orders was restored, the action is not affected by § 4106(f). Accordingly, the Court finds that Congress’s language was sufficiently clear to establish that the restored limitation was not intended to affect pending actions.12
In so holding, the Court rejects the arguments advanced by Govplaee regarding the language of the restored limitation on protests of task or delivery orders. Govplaee argues that § 4106(f) indicates that filing and maintaining an objection are not authorized or that the “entire proceedings” are not authorized. Def.-Intervenor’s Supplemental Reply 7; Mar. 14, 2012 Hr’g at 10:07:17. In so arguing, Govplaee appears to overlook the distinction between filing and maintaining an action. Although § 4106(f) clearly provides that filing an objection is not authorized, additional language would be needed to provide that maintaining a pending objection is not authorized. See, e.g., Gibbs v. Ryan, 160 F.3d 160, 163 (3rd Cir.1998). Moreover, neither CICA’s nor Black’s Law Dictionary’s definition of the noun “protest” embraces the all-encompassing “entire proceedings” interpretation advanced by Govplaee.
3. Step Two of the Retroactivity Analysis: The Restored Limitation on Protests of Civilian Agency Task or Delivery Orders Does Not Divest this Court of Jurisdiction over Wildflower’s Pending Action Because of the Presumption Against Retroactivity
Having analyzed the language of § 4106(f), the Court concluded that Congress intended that the provisions of § 4106(f) should apply prospectively, thus leaving pending actions, such as this one, unaffected. However, even if Congress had not addressed the statute’s temporal reach, the Court would conclude at the second step of the retroactivity analysis that § 4106(f) does not apply to Wildflower’s pending action because of the presumption against retroactivity-
As noted, see supra Part II.B.1, at this step in the retroactivity analysis, the court must consider “whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of ‘affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment.’” Fernandez-Vargas, 548 U.S. at 37, 126 S.Ct. 2422 (alterations in original) (quoting Landgraf, 511 U.S. at 278, 114 S.Ct. 1483). In Princess Cruises, Inc. v. United States, the Federal Circuit announced three factors based on the Supreme Court’s Landgraf decision that the court must consider at the second step of the retroactivity analysis. 397 F.3d 1358, 1362-63 (Fed.Cir.2005). Those factors are (1) “the nature and extent of the change of the law”; (2) “the degree of connection between the operation of the new rule and a relevant past event”; and (3) “familiar considerations of fair notice, reasonable reliance and settled expectations.” Id. (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483); see, e.g., Woodward v. Dep’t of Justice, 598 F.3d 1311, 1315 (Fed.Cir.2010) (applying Princess Cruises factors); Tarver v. Shinseki, 557 F.3d 1371, 1375-77 (Fed.Cir.2009) (same); Rodriguez, 511 F.3d at 1152-56 (same); Lyons v. United States, 99 Fed.Cl. 552, 558-60 (2011) (same).
*379a. Princess Cruises Factor One: The Nature and Extent of the Change in Law Weighs in Favor of Finding that the Restored Limitation on Protests of Civilian Agency Task or Delivery Orders Does Not Apply to Wildflower’s Pending Action
Pursuant to the first Princess Cruises factor, the Court must consider the nature and extent of the change in law. With regard to the former, the Supreme Court has stated that a statute that is jurisdictional in nature — such as § 4106(f), see supra Part II.A — “usually” does not affect substantive rights. Landgraf, 511 U.S. at 274, 114 S.Ct. 1483 (“Application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ ” (quoting Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 60 L.Ed. 409 (1916))); see also Hughes Aircraft Co. v. United States, 520 U.S. 939, 951, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997) (“The fact that courts often apply newly enacted jurisdiction-allocating statutes to pending cases merely evidences certain limited circumstances failing to meet the conditions for our generally applicable presumption against retroactivity-”). Thus, jurisdictional statutes “normally” apply to pending actions. Landgraf, 511 U.S. at 274, 114 S.Ct. 1483.
However, there is not a presumption that jurisdictional statutes apply to pending actions. Hamdan, 548 U.S. at 576, 126 S.Ct. 2749; see Hughes Aircraft Co., 520 U.S. at 951, 117 S.Ct. 1871. The Supreme Court has established that a statute may both be jurisdictional and affect substantive rights.13 See Hughes Aircraft Co., 520 U.S. at 951, 117 S.Ct. 1871 (finding that a law created “jurisdiction where none previously existed” and “thus [spoke] not just to the power of a particular court but to the substantive rights of the parties,” and explaining that “[s]uch a statute, even though phrased in ‘jurisdictional’ terms, is as much subject to [the] presumption against retroactivity as any other”); LaFontant v. INS, 135 F.3d 158, 163 (D.C.Cir.1998) (“The Supreme Court has clearly established the principle that in determining retroactivity, jurisdictional statutes are to be evaluated in the same manner as any other statute.”).
When a statute allocates jurisdiction to an administrative forum from a judicial forum, case law indicates that the statute is solely jurisdictional and does not affect the substantive rights of the parties. See Hallowell, 239 U.S. at 508, 36 S.Ct. 202; LaFontant, 135 F.3d at 162; Hincapie-Nieto v. INS, 92 F.3d 27, 29 (2d Cir.1996); Kolster v. INS, 101 F.3d 785, 788 (1st Cir.1996). Case law also indicates that a statute eliminating the jurisdiction of all potential fora is substantive as well as jurisdictional. See Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 166 (3d Cir.1998) (finding that an amendment did “not simply allocate jurisdiction among fora,” but rather “ ‘[destroyed] jurisdiction where [it] previously existed’” and “‘thus [spoke] not just to the power of a particular court but to the substantive rights of the parties as well’ ” (second alteration in original) (quoting Hughes Aircraft Co., 520 U.S. at 951, 117 S.Ct. 1871)); Bonner v. Home123 Corp., No. 2:05-CV-146 PS, 2006 WL 1518974, at *10 (N.D.Ind.2006) (explaining that a statute had “an impermissible retroactive effect by extinguishing Plaintiffs’ substantive right to have their day in court”).14
Here, § 4106(f) limits protests of civilian agency task or delivery orders at GAO and in *380the courts. FAR 16.505(a)(10) also limits protests of task or delivery orders at GAO or at an agency. Thus, the only recourse for a would-be protestor of a task or delivery order valued at less than $10 million whose protest does not concern the scope of the underlying contract is to make a complaint to the contract ombudsman, who is tasked with ensuring that all contractors are afforded a fair opportunity to be considered for the task or delivery order. See 41 U.S.C. § 4106(g); FAR 16.505(b)(6); see also AR Tab E, at 674 (FirstSource contract provision limiting delivery order protests pursuant to then-FAR 16.505(a)(9)); AR Tab E, at 677 (FirstSource contract provision setting forth ombudsman procedures pursuant to then-FAR 16.505(b)(5)). The Court does not view the ombudsman procedures for complaints as comparable to an administrative or judicial review of protests. See Weeks Marine, Inc. v. United States, 79 Fed.Cl. 22, 24 n. 2 (2007) (“The Court does not regard a[n agency] ‘ombudsman’ procedure included in the solicitation as a viable substitute for the judicial or administrative bid protest review that currently exists for sealed bidding.” (citation omitted)), rev’d in part on other grounds, 575 F.3d 1352 (Fed.Cir.2009). Accordingly, the restored limitation on protests of civilian agency task or delivery orders is substantive as well as jurisdictional and effects a significant change in the law. Thus, the first Princess Cruises factor weighs in favor of finding that the restored limitation does not apply to Wildflower’s pending action by reason of the presumption against retroactivity,
b. Princess Cruises Factor Two: The Connection Between Operation of the New Rule and Relevant Past Events Weighs in Favor of Finding that the Restored Limitation on Protests of Civilian Agency Task or Delivery Orders Does Not Apply to Wildflower’s Pending Action
Pursuant to the Princess Cruises framework, the Court next considers the connection between the operation of the new rule and a relevant past event. The Federal Circuit’s analysis of this factor has focused on whether a party has relied to its detriment on the prior law. E.g., Rodriguez, 511 F.3d at 1155.
Here, when Wildflower submitted its bid and when it filed its bid protest, the limitation on protests of civilian agency task or delivery orders was no longer in existence, and, as later discussed, see infra Part II.C, Wildflower was entitled to file a protest of a delivery order in this court. Wildflower was not aware that, a few months later, its only recourse would be to file a complaint with the ombudsman. These facts show a significant connection between operation of the new rule (a limitation on protests of civilian agency task or delivery orders) and the relevant past events (submission of a bid and filing of a bid protest action).15 Thus, the second factor in Princess Cruises also weighs in favor of concluding that the restored limitation on protests of civilian agency task or delivery orders does not apply to Wildflower’s pending action because of the presumption against retroactivity.
c. Princess Cruises Factor Three: Fair Notice, Reasonable Reliance, and Settled Expectations Weigh in Favor of Finding that the Restored Limitation on Protests of Civilian Agency Task or Delivery Orders Does Not Apply to Wildflower’s Pending Action
Finally, the Court must consider whether the new law offends notions of fair notice, reasonable reliance, and settled expectations. The Federal Circuit has not decided how much weight to afford this third factor because in the cases in which the Princess Cruises framework has been applied, the other two factors pointed in the same direction as the third factor. E.g., Princess Cruises, Inc., 397 F.3d at 1366.
Here, Wildflower submitted its bid after the limitation on protests of task or delivery orders had expired. Wildflower filed its bid *381protest after the Court of Federal Claims and GAO held that the limitation had expired. The president signed the 2012 NDAA a few months after Wildflower submitted its bid and filed its bid protest action in this court. Under these circumstances, the Court concludes that Wildflower’s reliance on the previous law was objectively reasonable, Wildflower had settled expectations, and Wildflower was without fair notice that the law would change. Thus, the third Princess Cruises factor weighs in favor of not applying the restored limitation on protests of civilian agency task or delivery orders to Wildflower’s pending action because of the presumption against retroactivity.
Accordingly, even if the language of the provision limiting protests of civilian agency task or delivery orders did not sufficiently evidence the temporal reach of the limitation, all three Princess Cruises factors indicate that applying the restored limitation would be retroactive in the disfavored sense, and thus the presumption against retroactivity would apply. Accordingly, the restored limitation on protests of civilian agency task or delivery orders would not operate to divest this court of jurisdiction over Wildflower’s action that was pending when the 2012 NDAA was enacted.
C. Absent FASA, the Tucker Act as Amended by the Administrative Dispute Resolution Act Confers Jurisdiction on the Court to Hear Protests of Task or Delivery Orders
Having found that 41 U.S.C. § 4106(f) does not affect the Court’s jurisdiction over Wildflower’s pending action, the Court must determine whether, in the absence of FASA, its general bid protest jurisdiction confers jurisdiction over protests of task or delivery orders. The Tucker Act as amended by the Administrative Dispute Resolution Act of 1996 (“ADRA”) provides, in part, that the Court of Federal Claims has the authority
to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1).
Defendant argues that FASA is the sole source of the court’s jurisdiction over task or delivery order protests and that, when the limitation did not exist from May through December 2011, this Court had no jurisdiction over task or delivery order protests because “when the jurisdiction of a cause depends upon a statute[,] the repeal of the statute takes away the jurisdiction.” Def.’s Supplemental Reply 13 (alteration in original) (quoting Ins. Co. v. Ritchie, 72 U.S. 541, 544, 5 Wall. 541, 18 L.Ed. 540 (1866)) (internal quotation marks omitted); see Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868).
However, defendant overlooks the fact that two years after the enactment of FASA’s limitation on task or delivery order protests, Congress passed the ADRA which conferred jurisdiction on the Court of Federal Claims to hear a broad range of bid protests. Pub.L. No. 104-320, § 12, 100 Stat. 3870, 3874-76 (1996). When confronted with the coexistence of these two statutes, the court in A & D Fire Protection, Inc. explained that the broad bid protest jurisdiction contained in the ADRA did not repeal FASA’s limitation on task or delivery order protests. 72 Fed.Cl. at 134. Rather, the two existed concurrently — the Tucker Act as amended by the ADRA conferring jurisdiction to hear bid protests and FASA limiting the court’s jurisdiction to hear task or delivery order protests. See id. The court “[understood] that [the] ADRA expanded this court’s bid protest jurisdiction but left intact the bar against a specific type of bid protest.” Id.
Accordingly, as originally passed, FASA deprived the Court of Federal Claims of jurisdiction over task or delivery order protests, except as they related to an order that increased the scope, period, or value of the underlying contract. See FASA, § 1054, 108 Stat. at 3264. After FASA’s passage, the Tucker Act was amended and the court’s bid protest jurisdiction was expanded. The limitation on hearing task or delivery order protests, however, remained in place and co*382existed with the new, broader jurisdiction of the court. See A & D Fire Prot., Inc., 72 Fed.Cl. at 134. Thus, FASA had, and continues to have, a limiting effect on the court’s broader jurisdiction under the Tucker Act as amended by the ADRA. Phrased another way, FASA effectively displaces the government’s waiver of sovereign immunity contained in 28 U.S.C. § 1491. See Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1336 (Fed.Cir.2007). Therefore, the Court finds that, absent the FASA limitation, task or delivery order protests fall within the court’s broader bid-protest jurisdiction. See MORI Assocs., Inc., 102 Fed.Cl. at 540 (“The government does not argue that it would be absurd for [the court’s] general bid protest jurisdiction to extend over task order protests, and the Court agrees with the MED Trends opinion’s conclusion that this ‘would not be an absurd result.’” (quoting MED Trends, Inc., 102 Fed.Cl. at 6)); MED Trends, Inc., 102 Fed.Cl. at 6 (finding jurisdiction over a task order protest filed in June 2011 and noting that “a default to the court’s general jurisdiction over bid protests under 28 U.S.C. § 1491(b)(1) [in the absence of the FASA limitation] would not be an absurd result”); A & D Fire Prot., Inc., 72 Fed.Cl. at 134. Accordingly, in the absence of FASA, Wildflower’s delivery order protest would fall within the court’s general bid protest jurisdiction.
D. The Court Has Jurisdiction Pursuant to the Tucker Act as Amended by the ADRA to Hear Challenges to Corrective Actions
Pursuant to the Tucker Act, as amended by the ADRA, this court has exercised jurisdiction to hear bid protests in three circumstances:
(1) a pre-award protest, which is an objection to “a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award ... of a contract”; (2) a post-award protest, which objects to “the award of a contract”; or (3) a protest objecting to “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.”
Magnum Opus Techs., Inc. v. United States, 94 Fed.Cl. 512, 527 (2010) (alteration in original) (citations omitted) (quoting 28 U.S.C. § 1491(b)(1)).
To support its motion to dismiss Wildflower’s claims for lack of jurisdiction, defendant argues that Wildflower’s claims do not fall within any of the categories of actions that can be brought in this court. Def.’s Mot. 32. Specifically, defendant argues that Wildflower does not challenge the solicitation, a proposed award, or a final award, nor does it allege a violation of statute or regulation in connection with a procurement. Id.
This court has held that corrective action is part of an agency’s procurement process and, thus, a protest of a corrective action falls within this court’s bid protest jurisdiction as an objection to a solicitation. Sys. Application & Techs., Inc. v. United States, 100 Fed.Cl. 687, 705-06 (2011); see Ceres Gulf, Inc. v. United States, 94 Fed.Cl. 303, 315 (2010) (“[W]here a plaintiff, as the contract awardee, files a protest challenging an agency’s decision to resolieit a proposal, the plaintiffs protest ‘is in the nature of a pre-award claim.’ ” (quoting IMS Servs., Inc. v. United States, 32 Fed.Cl. 388, 398 (1994))). As has been previously determined, “the jurisdictional grant in 28 U.S.C. § 1491(b)(1) applies to the entire procurement process.” Sys. Application & Techs., Inc., 100 Fed.Cl. at 703. And the Federal Circuit has broadly interpreted “procurement” to encompass the period from the agency’s determination that it requires contracted goods or services through final contract award and completion. Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1345 (Fed.Cir.2008) (adopting the definition of procurement in title 41 and stating that “ ‘procurement’ includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” (quoting 41 U.S.C. § 403(2) (2006), which was recodified at 41 U.S.C. § 111 by Pub.L. No. 111-350, § 3, 124 Stat. 3477, 3681 (2011)) (internal quotation marks omitted)).
Accordingly, this court possesses broad bid protest jurisdiction that encompasses a protest of corrective action executed *383during the course of a procurement. See Sys. Application & Techs., Inc., 100 Fed.Cl. at 703 & n. 9 (“[T]he body of decisional law addressing challenges to a procuring agency’s corrective action reflect[s] that the bid protest jurisdiction of the Court of Federal Claims under 28 U.S.C. § 1491(b)(1) should be broadly construed.”); Sheridan Corp. v. United States, 95 Fed.Cl. 141, 148-49, 151 (2010) (finding that the court had jurisdiction pursuant to 28 U.S.C. § 1491(b)(1) when the plaintiff challenged “the agency’s corrective action of resoliciting revised proposals” after the agency had awarded the contract to the plaintiff); Ceres Gulf, Inc., 94 Fed.Cl. at 316 (finding jurisdiction over a pre-award bid protest that challenged the agency’s corrective action and noting that “this Court and the Federal Circuit have ruled that jurisdiction exists to review an agency’s corrective action decision”).
Moreover, in order for this court to have jurisdiction, Wildflower does not have to challenge the terms of a solicitation as defendant argues; rather, Wildflower’s challenge to the corrective action taken during the course of a procurement is sufficient to bring its claims within the court’s bid protest jurisdiction. See Ceres Gulf, 94 Fed.Cl. at 316 (noting that the plaintiff “need not challenge precise terms in the amended solicitation in order for this Court to have preaward bid protest jurisdiction” and that the agency’s “decision to reopen the procurement itself provides the Court with the jurisdiction necessary to review [the plaintiffs] claims”).
Because Wildflower’s challenge to CBP’s corrective action falls within the court’s pre-award bid protest jurisdiction, Wildflower need not assert an additional challenge to an award or proposed award, neither of which currently exists, nor must it allege a violation of a statute or regulation relating to the procurement in order to avail itself of this Court’s jurisdiction.16 Jacobs Tech. Inc. v. United States, 100 Fed.Cl. 173, 175 (2011) (“Several Court of Federal Claims cases reject the proposition that allegation of specific statutory or regulatory violations is necessary for the court to have jurisdiction over solicitations, proposed awards or awards_”).
In addition to its contention that Wildflower’s claims are not within this court’s bid protest jurisdiction, defendant states that Wildflower is presenting “a [Contract Disputes Act (“CDA”) ] claim disguised as a bid protest.” Def.’s Combined Br. in Resp. to Pl.’s Mot. for J. Upon Administrative R. & in Reply in Supp. of Def.’s Mot. to Dismiss, or in Alternative, for J. Upon Administrative R. (“Def.’s Resp.”) 5 (docket entry 46, Jan. 18, 2012). Defendant and Govplace assert that this Court must dismiss Wildflower’s claims for lack of jurisdiction because Wildflower has not completed the procedures required before it may bring a CDA claim in this court.
The Tucker Act states that “[t]he Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41, including a dispute concerning termination of a contract.” 28 U.S.C. § 1491(a)(2) (emphasis added). Section 7104(b)(1) of title 41 is the codification of section 10 of the CDA, Pub.L. No. 95-563, § 10, 92 Stat. 2383, 2388 (1978). See Pub.L. No. 111-350, § 3, 124 Stat. 3677, 3820 (2011).
“When the [CDA] applies, it provides the exclusive mechanism for dispute resolution; the [CDA] was not designed to serve as an alternative administrative remedy, available at the contractor’s option.” Dalton v. Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed.Cir.1995). In order to bring *384an action pursuant to the CDA in this court, a plaintiff must first submit a written claim to the contracting officer. 41 U.S.C. § 7103(a); see also Diversified Maint. Sys., Inc. v. United States, 103 Fed.Cl. 431, 438 (2012) (“Before filing suit in this court under the CDA, a plaintiff must first submit a written claim to the contracting officer for a final decision.” (citing 41 U.S.C. § 7103(a))).
Defendant is correct that a challenge to a contract termination is properly brought pursuant to the CDA. See Data Monitor Sys., Inc. v. United States, 74 Fed.Cl. 66, 71 (2006) (noting that a challenge to a contract termination claim “may only be brought under the CDA”); Davis/HRGM Joint Venture v. United States, 50 Fed.Cl. 539, 544 (2001) (holding that this court’s bid protest jurisdiction does not encompass “claims involv[ing] a dispute arising out of the contract between the parties” and finding that a challenge to a termination for convenience “does not relate to an interested party’s objection to a solicitation, a proposed award, or an award” pursuant to § 1491(b)(1)); see also 41 U.S.C. § 7102(a) (explaining that, in relevant part, 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; [and] (2) the procurement of services.”). Accordingly, if Wildflower were only challenging the agency’s decision to terminate its contract for convenience, then Wildflower would have to do so pursuant to this court’s CDA jurisdiction and would, therefore, be statutorily required to submit a claim to the contracting officer before filing suit in this court.
However, Wildflower asserts claims challenging CBP’s corrective action implemented during the course of a procurement, and corrective action taken during the course of procurement falls within the court’s bid protest jurisdiction, as discussed supra Part II.D. That a contract termination is involved in an agency’s corrective action conducted during the course of a procurement, as is the ease here, “does not divest the court of its bid protest jurisdiction.” Sys. Application & Techs., Inc., 100 Fed.Cl. at 705. As a result, the Court has jurisdiction over Wildflower’s bid protest claims pursuant to 28 U.S.C. § 1491(b)(1).
Accordingly, the Court DENIES defendant’s and Govplace’s motions to dismiss Wildflower’s claims for lack of jurisdiction.
III. Standing and Ripeness
A Wildflower Has Standing
“[Standing under § 1491(b)(1) is limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Emps. v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001). A showing of “direct economic interest” requires the plaintiff to demonstrate that “any alleged errors caused prejudice.” Weeks Marine, Inc., 575 F.3d at 1359. To show prejudice, a pre-award protestor must show “a ‘non-trivial competitive injury which can be addressed by judicial relief.’” Id. at 1361 (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed.Cl. 748, 763 (1998)); accord ICP Nw., LLC v. United States, 98 Fed.Cl. 29, 36 (2011) (“Applying these standards, the Federal Circuit and this court have required pre-award bid protestors, in cases such as this one, to demonstrate that the solicitation would prejudice them by imposing a significant competitive disadvantage.”).
Here, Wildflower is indisputably an actual bidder. As the former awardee protesting corrective action, Wildflower has shown a “direct economic interest” that would be affected by the award of the contract or failure to award the contract. See Sys. Application & Techs., Inc., 100 Fed.Cl. at 708 (“[I]n almost every decision in which the standing of a contract awardee to protest a procuring agency’s corrective action was addressed, the court has concluded that the protester had standing.”); Jacobs Tech., 100 Fed.Cl. at 178; Sheridan, 95 Fed.Cl. at 149; The Centech Grp., Inc. v. United States, 78 Fed.Cl. 496, 504 (2007); Delaney Constr. Corp. v. United States, 56 Fed.Cl. 470, 474 (2003); cf. Outdoor Venture Corp. v. United States, 100 Fed.Cl. 146, 152-53 (2011) (finding the plaintiff was not an interested party and therefore lacked standing because the *385plaintiff was the awardee and the contract was not being resolicited). Accordingly, the Court DENIES defendant’s motion to dismiss for lack of standing.
B. Wildflower’s Claims Are Ripe
The doctrine of ripeness “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). A two-part test determines whether a claim is ripe for judicial action: (1) “whether the issues are fit for judicial decision — that is, whether there is a present case or controversy between the parties” and (2) “whether there is sufficient risk of suffering immediate hardship to warrant prompt adjudication — that is, whether withholding judicial decision would work undue hardship on the parties.” Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1580-81 (Fed.Cir.1993). The first part of the test requires that the “agency action is final.” Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1362 (Fed.Cir.2008).
Here, defendant argues that “the agency’s pending solicitation is not a final decision because it does not mark the consummation of the agency’s decision making process.” Def.’s Mot. 33. Defendant also argues that Wildflower’s harm is contingent upon future events that may not occur, i.e., Wildflower may receive the award again. Id. at 35. Nonetheless, the fact that CBP has terminated Wildflower’s contract and issued a second solicitation makes this ease ripe for judicial action. See, e.g., Sheridan Corp., 95 Fed.Cl. at 150; The Centech Group, Inc., 78 Fed.Cl. at 505.
Accordingly, the Court DENIES defendant’s motion to dismiss for lack of ripeness.
IV. Merits
Wildflower initiated this action on November 3, 2011 challenging the termination for convenience of its delivery order and the reissuance of the RFQ with a revised SOW. Wildflower has filed a motion for judgment on the administrative record pursuant to RCFC 52.1. Both defendant and Govplace filed motions for judgment on the administrative record pursuant to RCFC 52.1.
In a bid protest action, the court may set aside agency action if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 28 U.S.C. § 1491(b)(4); see 5 U.S.C. § 706(2)(A); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). The protestor will succeed when “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Banknote Corp. of Am., 365 F.3d at 1351 (quoting Impresa Construzioni Geom. Domenico Garufi, v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)) (internal quotation marks omitted). To succeed on the first ground, the protestor must show that the agency failed to provide a “coherent and reasonable explanation of its exercise of discretion”; to succeed on the second ground, the protestor must show that there was a “clear and prejudicial violation of applicable statutes or regulations.” Id. (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332-33) (internal quotation marks omitted).
Here, Wildflower makes two broad arguments. First, Wildflower contends that the contracting officer’s decision to implement corrective action was unreasonable, arbitrary, capricious, and an abuse of discretion. Second, Wildflower argues that the scope of the corrective action — to terminate the contract award to Wildflower, revise the RFQ, and resolieit bids — was arbitrary, capricious, and an abuse of discretion.
A. The Contracting Officer’s Decision to Implement Corrective Action Was Reasonable
A contracting agency has broad discretion whether to pursue corrective ac*386tion during the course of a procurement. Sys. Application & Techs., Inc., 100 Fed.Cl. at 716 (“As with all procurement decisions, an agency has broad discretion to take necessary corrective action.”); Jacobs Tech., 100 Fed.Cl. at 190 (“Contracting officers are entitled to broad discretion in the procurement process, including in their decisions to take corrective action.” (citation omitted)). When reviewing an agency’s decision to take corrective action, the Court must assess whether the decision was “rational, reasonable, and coherent and reflect[ed] due consideration of all relevant factors.” Sys. Application & Techs., Inc., 100 Fed.Cl. at 716. The contracting agency does not have to “admit an error” prior to its decision to pursue corrective action. ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed.Cl. 57, 72 (2001).
Here, CBP decided to take corrective action after receiving a letter from Govplace in which Govplace requested that CBP hold the award and “review the requirements and lowest priced technical solution that was submitted” because Govplace perceived that an error occurred in the solicitation process with regard to whether the equipment had to be immediately compliant with the 802.1ae standard. AR Tab B, at 371-73; see AR Tab B, at 394-95. CBP’s decision to take corrective action was premised on its conclusion that “the solicitation was not clear on when an offeror had to be fully 802.1ae compliant.” AR Tab B, at 395.
The main issue in the dispute over whether CBP’s decision to implement corrective action was reasonable is whether or not it was rational for the agency to conclude that the RFQ, including the SOW and other related materials, was ambiguous. If that conclusion was not rational, then CBP acted unreasonably when it decided to implement the corrective action. However, if CBP rationally perceived an ambiguity in the solicitation with respect to when proposals had to meet the standards set forth in the SOW, then it was reasonable for CBP to craft corrective action to clarify the ambiguity in order to afford a fair opportunity to all bidders.
A term in a solicitation is ambiguous when it is “open to more than one reasonable interpretation.” CW Gov’t Travel, Inc. v. United States, 99 Fed.Cl. 666, 674 (2011) (citing Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed.Cir.1996)); accord Banknote Corp. of Am., Inc., 365 F.3d at 1353 (“The solicitation is ambiguous only if its language is susceptible to more than one reasonable interpretation.”).
Wildflower points out that the RFQ states that the awardee would have 550 days (about 18 months) for “delivery.” AR Tab B, at 68-69. Presumably, delivery includes full performance and total compliance with the requirements of the SOW. Given this, it was reasonable for an offeror to believe that it would be proposing a technically acceptable bid if its proposed software came into compliance and could be properly installed within the performance period.
Defendant notes that the FirstSource contract, under which this procurement was initiated, provided that hardware and software components must be “ready for immediate use ... unless otherwise specified in individual delivery orders.” Def.’s Resp. 28 (citing AR Tab E, at 658) (internal quotation marks omitted). It does not appear that any of the materials in the procurement at issue contained an explicit provision indicating that anything other than immediate compliance was acceptable. Therefore, the FirstSource contract language and the fact that there was no explicit provision regarding the timing of full compliance in the solicitation suggest that immediate compliance was mandatory to receive award. However, that conclusion is at variance with the implication created by the eighteen-month performance period.
Wildflower next notes that the SOW and the RFQ both contain “or equal” language, meaning that the required equipment could be the equipment specified in the SOW or its equivalent. See, e.g., AR Tab B, at 68, 106. A1 parties understood that the brand to which the “or equal” equipment would be compared was Cisco, and it apparently was common knowledge that only Cisco equipment was immediately compliant with the 802.lae standard set forth in the SOW. Therefore, if Cisco equipment was immedi*387ately compliant with the SOW standards, and the RFQ and SOW stated that proposed non-Cisco equipment must be equal to its brand-name equivalent, it would be reasonable for an offeror to conclude that “or equal” equipment should, too, be immediately compliant. However, because Cisco was understood to be the only brand that could immediately comply with the specifications, there was, in effect, no “or equal” brand. This interpretation would effectively render the “or equal” language meaningless, implying that it was acceptable to provide 802. lae compliant equipment sometime during the eighteen-month performance period.
Wildflower explained this reasoning in a question it posed to CBP while the bidding process was underway. See AR Tab B, at 150. It requested clarification of whether software that was not immediately compliant with the 802.1ae standard would be acceptable if it became compliant within the eighteen-month performance period. Id. By limiting acceptable software to that which was equal to Cisco, Wildflower explained that CBP was effectively “creating a sole source procurement.” Id. In response, CBP stated that other brands offered equipment that would soon become compatible with the 802.1ae standard, specifically noting the Juniper brand. AR Tab B, at 546. CBP’s answer suggested that brands that did not immediately meet the standard could still be technically acceptable for purposes of the procurement if it was known that the brand would later be able to meet the standard. However, only Wildflower was privy to this information since CBP provided its answer directly to Wildflower and did not post it on FedBid for the other offerors to view and consider. See AR Tab B, at 57.
Wildflower argues that its question and CBP’s corresponding answer were, in fact, available to the other offerors. See Pl.’s Resp. to Def.’s FedBid Ex. Provided at Oral Arg. & Provision of Citations Relating to Alleged Funding Excuse (“Pl.’s Supplemental Br.”) 1-3 (docket entry 56, Feb. 15, 2012). In support of this argument, Wildflower points to the FedBid Buy Activity Report, which displays the question at issue along with a number of other questions and their corresponding answers that were handled by CBP between August 31, 2011 and September 2, 2011. Id. at 2 (citing AR Tab B, at 147-48). Wildflower argues that, from the face of this document, it is evident that CBP answered and posted Wildflower’s question and its corresponding answer. Id. Accordingly, Wildflower reasons the other offerors were able to view the exchange.
In response, defendant argues that the Buy Activity Report is “a ‘buyer’s report’ evidencing the buyer’s direct communications” and is available only to the buyer, not to any sellers involved in the procurement. Def.’s Reply to Pl.’s Feb. 15, 2012 Supplemental Post-Hr’g Br. (“Def.’s Supplemental Br.”) 2 (docket entry 59, Feb. 27, 2012). In support of this explanation, defendant submitted documents from the FedBid website as an exhibit during the January 27, 2012 oral argument. See Def.’s Ex. 1. One document included a list of frequently asked questions as they relate to sellers involved in a procurement conducted through FedBid. See id. Defendant highlighted the answer to the following question: “What if [the seller has] a question or comment regarding a Buy?” Id. at 4. The highlighted portion of the answer explained how to submit a question to the buyer, here CBP, through the FedBid website. Id. It then explained that “[a]n-swers not requiring reposting may be answered offline through email by the appropriate responder (i.e. ... the Buyer, if the question or comment is related to the solicitation).” Id.
To further clarify, defendant draws the Court’s attention to a video posted on the FedBid website. See id. at 5. This video explains to the buyer how sellers may submit questions and how the buyer then can manage its answers to those questions. The video states: “All questions and answers will be documented in the Buy Activity Report.” Id. at 5; Answering Buy Spec Questions, FedBid, http://www.fedbid.com/buyers/ videos/answering-buy-specification-questions/ (last visited Mar. 8, 2012) [hereinafter Fed-Bid Video ] (emphasis added). “All” implies that any question and answer addressed by the buyer will appear on the Buy Activity Report without regard to whether that ques*388tion and answer were posted for other offer-ors to view. This is supported by the fact that the buyer is able to designate “no reply” as a response to a question received, a designation which appears on the Buy Activity Report so that the Buyer may manage its responses to sellers’ questions. FedBid Video. Furthermore, the video explains that questions answered via FedBid would generate an e-mail to the seller. Id. Nothing in the video or defendant’s exhibit suggests that this Buy Activity Report is available to any entity other than the buyer. Based on this evidence, defendant argues that, although the Buy Activity Report displayed a record of the questions submitted to and subsequently answered by the buyer, this report was not available to the offerors.
Other evidence in the record supports defendant’s explanation. The contracting officer stated that no questions were posted for offerors to view after August 30, 2011. AR Tab B, at 57. He further stated that “questions and answers (19) up to [August 30, 2011] were posted as an attachment to the RFQ on FedBid for all potential offerors to review.” Id. This is confirmed by the Buy Activity Report, which shows that the solicitation was reposted on August 30, 2011. AR Tab B, at 147. Defendant’s exhibit explains that “[i]f the Buyer determines that an amendment to the solicitation is required, the Buyer will repost the Buy.” Def.’s Ex. 1, at 4. Here, it is clear that CBP decided to post all questions and answers addressed from the opening date of the procurement through August 30, 2011 as an attachment to the RFQ, which required CBP to repost the solicitation, or “Buy.” No other such reposting was made and the next entry on the chronological list of activity is the date the period to submit bids expired, as is evidenced by the term “Cancelled” appearing on September 6, 2011.
Accordingly, the weight of the evidence demonstrates, and the Court finds, that the Buy Activity Report was not available to any offerors during the course of the procurement and Wildflower’s August 31, 2011 question and the corresponding answer were not disclosed to the other offerors at any point during the procurement process.17 Therefore, the Court concludes that no offeror was privy to CBP’s answer to Wildflower’s question regarding the timing of 802. lae compliance except for Wildflower through the email it received in response to its inquiry.
Given the information generally available to all the offerors, it was reasonable for an offeror to understand that the equipment had to be immediately compliant with the 802.1ae standard, and it was also reasonable for an offeror to understand that equipment could become compliant during the eighteen-month performance period.
Furthermore, although Wildflower is correct when it argues that silence does not necessarily translate to ambiguity, see Wanless v. Shinseki, 618 F.3d 1333, 1337 (Fed.Cir.2010) (explaining that “silence alone does not create an ambiguity” in the context of statutory interpretation); Thomas v. Nicholson, 423 F.3d 1279, 1284 n. 5 (Fed.Cir.2005) (noting, in the context of statutory interpretation, that “silence alone does not infer an ambiguity”), the solicitation was not merely silent. The RFQ, SOW, and FirstSouree contract contained information regarding when full performance had to be achieved and what type of equipment was required, but those sources of information, even taken together, did not provide an adequate explanation as to when fully compliant equipment had to be available.
Accordingly, the Court finds that there are at least two reasonable interpretations of the information the offerors had when preparing their initial bids — that the equipment had to *389be immediately compliant with the 802. lae functionality standard at the time of the award and that the equipment could come into compliance with that standard sometime during the performance period. This amounts to an ambiguity.18 Defendant argues that CBP was obligated to rectify this defect because it had to “provide each contractor ‘a fair opportunity to be considered for all delivery orders’ ” pursuant to FAR 16.505(b) and sections G.5(a) and G.9 of the FirstSouree contract. Def.’s Resp. 20-21 (citing AR Tab E, at 672, 674). Given CBP’s regulatory and contractual obligations, it acted reasonably and within its discretion when it concluded that the initial solicitation was ambiguous and that corrective action was required in order to give all offerors a fair opportunity to bid.
B. The Corrective Action Implemented by CBP Was Reasonable
Once it is established that an agency’s decision to undertake corrective action is reasonable, the Court must determine whether the corrective action itself was “reasonable under the circumstances.” Sheridan Corp., 95 Fed.Cl. at 151 (quoting DGS Contract Serv., Inc. v. United States, 43 Fed.Cl. 227, 238 (1999)). Corrective action is reasonable when it is “rationally related to the defect to be corrected.” Id. (citing MCII Generator & Elec. v. United States, No. 1:02-CV-00085-LMB, 2002 WL 32126244, at *1 (Fed.Cl. Mar. 18, 2002)). “Furthermore, the reason for the corrective action must be supported by the evidence in the record.” Id. (citing MCII Generator & Elec., 2002 WL 32126244, at *1).
Here, the corrective action implemented by CBP involved two interconnected steps: first, CBP terminated for convenience the delivery order that had been awarded to Wildflower, and, second, CBP revised the solicitation and reopened the bidding process, giving offerors twenty-four hours to submit their proposals in response to the revised solicitation. The Court must now determine whether the corrective action itself was rational in light of the circumstances surrounding the procurement and whether the corrective action was rationally related to the defect, namely the ambiguity with regard to the timing of 802. lae compliance.
In support of its argument that the corrective action was unreasonable, Wildflower contends that (1) the revision to the RFQ did not address the ambiguity because there was no such ambiguity; (2) the revision to the RFQ was immaterial because it “simply put in writing what offerors already knew” and because Govplace did not make any technical changes to its proposal, Pl.’s Resp. 31-33; and (3) CBP’s decision to give the offerors only twenty-four hours in which to submit new bids is evidence that the corrective action was not rationally related to clarifying the ambiguity. Pl.’s Mot. 28; Pl.’s Resp. 2, 36-37.
1. The Initial RFQ Was Ambiguous
Wildflower’s argument that the RFQ was not ambiguous with respect to when the equipment had to be 802.lae compliant has been addressed above, see supra Part IV.A, and found to be unpersuasive. The Court has concluded that Wildflower’s argument that the corrective action was not related to the defect in the solicitation because the solicitation was not ambiguous fails.
2. The Amendments to the Language of the Initial RFQ Corrected the Ambiguity in the Solicitation, and It Is Irrelevant that Govplace’s Response to the Second RFQ Made No Technical Changes
Wildflower’s argument that the RFQ merely “put in writing what offerors already knew” is not persuasive. The Court has found that the solicitation was ambiguous as to when the equipment had to be 802.1ae compliant. That Wildflower and two other offerors may have proposed equipment *390that was not immediately compliant with the requisite standard does not mean that the solicitation was not open to more than one reasonable interpretation, i.e., that it was not ambiguous. Therefore, because CBP reasonably determined that the solicitation was ambiguous and, thus, did not afford all offer-ors a fair bidding opportunity, the alteration of the RFQ’s language to correct that ambiguity was material to the procurement and properly corrected the ambiguity.
Additionally, although Wildflower correctly points out that Govplaee did not make any technical changes to its proposal during the resolieitation, this Court must analyze the reasonableness of an agency’s corrective action based on the circumstances as they existed at the time the agency crafted the corrective action. Therefore, that Govplaee did not alter its technical proposal is irrelevant to the question whether CBP’s corrective action was reasonable or rationally related to clarifying the ambiguity in the original solicitation.
3. CBP’s Decision to Permit Twenty-Four Hours to Submit Bids Responsive to the Second RFQ Was Reasonable Under the Circumstances
Wildflower argues that the twenty-four hour period offerors were given to bid during the second solicitation was unreasonable. Wildflower states, “CBP’s corrective action cannot be rational since it was not structured to remedy the very flaw that supposedly justified the corrective action in the first place.” Pl.’s Resp. 37. Wildflower argues that the twenty-four hour resolicitation period proves the arbitrariness of CBP’s corrective action. Id.
To better address this argument, at the January 27, 2012 oral argument, the Court inquired into the reasons for the twenty-four hour rebidding period and asked the parties to discuss the ombudsman’s remarks regarding the need to proceed quickly with the resolicitation. See AR Tab B, at 390 (containing statements of the ombudsman that “this is no-year money,” “[t]ime is of the essence,” and “[w]e are poised to cancel and repost but not without getting the funded [procurement request] back in our box today”).
Defendant and Govplaee explained that funding, or the potential lack thereof, was a reason for the twenty-four hour period for rebidding. See Def.-Intervenor’s Reply to Pl.’s Resp. to Def.’s FedBid Ex. Provided at Oral Arg. & Provision of Citations Related to the Alleged Funding Excuse (“Def.-Interve-nor’s Supplemental Br.”) 3 (docket entry 61, Feb. 27, 2012); Def.’s Supplemental Br. 3-5. Defendant states that CBP expected that the Fiscal Year (“FY”) 2012 budget would reflect the same uncertainty as the FY 2011 budget and the agency was not certain which of its “funds could be subject to rescission.” Def.’s Supplemental Br. 4. The fear of rescission of funds, particularly unobligated funds, defendant argues, was the reason CBP acted quickly with respect to rebidding after the award to Wildflower was terminated. See id. Because of this background, defendant argues that the ombudsman’s statement that “[t]ime is of the essence” and other remarks regarding time sensitivity related to funding concerns. Id. at 5.
Wildflower argues that funding was not an issue. Wildflower interprets the ombudsman’s statements, see AR Tab B, at 390, as being triggered by “a threat of a protest by Govplaee.” Pl.’s Supplemental Br. 4. Wildflower asserts that the ombudsman’s statement that the procurement was funded by “no-year money” showed that “there was no time pressure regarding the award of this procurement caused by a threatened loss of funding.” Id. at 6.
Although the Court finds the position of defendant and Govplaee more persuasive, it is not necessary to finally resolve the agency’s motive. Given the information CBP had when crafting the corrective action and the nature of the revisions made, see AR Tab B, at 59-60, the Court finds that the twenty-four hour resolicitation period was reasonable. Nothing in the record suggests that a twenty-four hour period was insufficient to cure the ambiguity in the solicitation, and none of the offerors objected when they were informed of the amount of time the second *391solicitation would be open.19 Accordingly, the Court finds that the twenty-four hour period in which to resubmit bids responsive to the amended RFQ was reasonable under the circumstances.
The corrective action CBP crafted and implemented was reasonable, and CBP did not abuse its discretion or act arbitrarily, capriciously, or otherwise not in accordance with law when it executed the corrective action.
C. CBP Was Required by FAR to Disclose to the Other Offerors Wildflower’s Winning Low Bid in Response to the Initial RFQ
Wildflower argues that it was prejudiced by the fact that CBP disclosed the price of the contract that Wildflower was awarded to the other offerors before implementing the corrective action. Wildflower contends that, by disclosing Wildflower’s price to the other offerors and then resoliciting bids, the agency was essentially inviting the other offerors to underbid Wildflower. See Pl.’s Mot. 32-34. According to Wildflower, this action created “extreme competitive prejudice,” id. at 33, “ensured that Wildflower would stand no chance of receiving the contract,” id. at 34, and “undermined the fairness and integrity of the procurement.” Id. As a result, Wildflower maintains that CBP’s corrective action was “arbitrary and an abuse of discretion.” Id. at 33.
As an initial matter, Wildflower concedes that its price was properly disclosed to the other offerors once Wildflower was awarded the contract. According to FAR Part 15, “[w]ithin 3 days after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award.” FAR 15.503(b)(1); see also Sys. Application & Techs., Inc., 100 Fed.Cl. at 721 n. 23 (“The government is required to disclose the price of an awarded contract to the unsuccessful offerors.” (referencing FAR 15.503 and FAR 15.506)). By posting the name of the successful offeror and the price of its winning bid, CBP properly followed FAR directives, a fact Wildflower conceded at both oral arguments. Jan. 27, 2012 Hr’g at 10:01:00; Mar. 14, 2012 Hr’g at 10:37:52 (“The release of Wildflower’s pricing information was absolutely by the book.”).
Moreover, the publicly available “Seller Frequently Asked Questions” posted on the FedBid website explained that “[o]nce a Buy has closed, and the Buyer has chosen a Selected Seller, all participating bidders may view the Selected Seller’s total bid price and the Selected Seller’s identity.” Def.’s Ex. 1, at 1. Therefore, all offerors should have been aware that, by virtue of the standard procedures of the FedBid website, when bidding closed and an awardee was selected, that awardee and its winning price would be disclosed.20
The Court recognizes that the disclosure of a winning bid prior to resolicitation could confer a competitive advantage on other of-ferors during a resolieitation in a lowest-price, technically acceptable procurement. However, in this case, because CBP’s disclosure of Wildflower’s price information was lawful and the offerors knew or should have known that the price of the winning bid would be revealed, and because the corrective action was reasonably calculated to cure the defect in the solicitation, it was proper for CBP to implement the corrective action despite the fact that other offerors knew Wildflower’s winning price. See Phenix Research Prods., B- 292184.2, 2003 WL *39221956013, at *5 (Comp.Gen. Aug. 8, 2003) (“[T]he prior disclosure of [product and price] information in a vendor’s quotation does not preclude resolicitation where ... the resolieitation is undertaken to correct perceived flaws in the original solicitation process.”).
Wildflower argues that the Court of Federal Claims has in other cases found that the release of an offeror’s winning price proposal prior to resolieitation was prejudicial to that offeror. Pl.’s Mot. 33 n. 20 (citing DGS Contract Serv., Inc., 43 Fed.Cl. at 238). However, the court in DGS Contract Service held that it was appropriate in that ease for the contracting officer to disclose price information to all offerors because one unsuccessful offeror had received price information during debriefing. DGS Contract Serv., 43 Fed.Cl. at 238. If the price information had not been revealed to all offerors, the offeror that had been debriefed would have been the only offeror privy to that information and would have therefore enjoyed a unique competitive advantage.
Here, the winning bid was lawfully disclosed to all unsuccessful offerors, rather than just to one. Moreover, the fact that the DGS Contract Service court found that it was appropriate for the agency to provide all offerors with price information in an effort to reduce competitive advantages during the reopened solicitation process, id., supports the Court’s conclusion that the disclosure of Wildflower’s price prior to the resolieitation was not improper. Accordingly, Wildflower’s argument related to disclosure of its winning price is unpersuasive.
D. Wildflower Conceded that CBP Acted in Good Faith
Wildflower’s counsel stated at the initial status conference that Wildflower was alleging that CBP acted in bad faith when it implemented corrective action. Hr’g at 11:29:49, Wildflower v. United States, 11-734 C (Fed.Cl. Nov. 7, 2011). Wildflower also alleged bad faith in its complaint and argued bad faith in its briefs. See, e.g., Compl. ¶ 58 (contending that amending the RFQ and re-posting it was a “spurious excuse to justify giving GovPlaee another opportunity to beat Wildflower’s price”); Pl.’s Mot. 36. However, Wildflower’s counsel abandoned any claim of bad faith at the hearing on March 14, 2012. In addition to stating that Wildflower was no longer alleging bad faith, Wildflower’s counsel stated that the record demonstrates that government personnel “were acting in quite good faith.”21 Mar. 14, 2012 Hr’g at 10:36:48.
CONCLUSION
For the foregoing reasons, Wildflower’s motion for judgment on the administrative record pursuant to RCFC 52.1 is DENIED; defendant’s motion to dismiss based on lack of jurisdiction, standing, and ripeness pursuant to RCFC 12(b)(1) and Govplace’s motion to dismiss for lack of jurisdiction pursuant to RCFC 12(b)(1) are DENIED; and the motions of defendant and Govplace for judgment on the administrative record pursuant to RCFC 52.1 are GRANTED. The Clerk shall enter judgment accordingly.
Some information contained herein may be considered protected information subject to the protective order entered in this action on November 9, 2011 (docket entry 15). This Opinion and Order shall therefore be filed under seal. The parties shall review the Opinion and Order to determine whether, in their view, any information should be redacted in accordance with the terms of the protective order prior to publication. The Court ORDERS that the parties shall file, by Monday, June 4, 2012, a joint status report identifying the information, if any, they contend should be redacted, together with an explanation of the basis for each proposed redaction.
IT IS SO ORDERED.
. Wildflower notes that it was not the only bidder to propose non-Cisco equipment and that two offerors, who are not involved in this case, also included non-Cisco equipment in their quotes. PL's Mot. for J. on Administrative R. & Req. for Permanent Inj. Relief ("Pl.’s Mot.”) 4 n. 1, 8.
. The letter attached to the September 21 e-mail is dated September 22 and states that the contract was terminated September 21, "yesterday." Other than this letter, the administrative record indicates that the contract was terminated on September 20, and Wildflower was provided with instructions for requesting termination costs on September 21. See AR Tab G, at 772-73; Tab H, at 774-75.
. In late October and early November 2011, Wildflower and the contracting officer exchanged letters regarding the approximately *370$270,000 in termination costs Wildflower requested. CBP has not yet paid any termination costs to Wildflower. Wildflower has also not received a final decision from the contracting officer. See Def.’s Mot. Attachs.
. On one hand, the Supreme Court has indicated that later statutes play an extremely limited role, if any, in interpreting earlier statutes. See, e.g., O’Gilvie v. United States, 519 U.S. 79, 90, 117 S.Ct. 452, 136 L.Ed.2d 454 (1996); United States v. X-Citement Video, Inc., 513 U.S. 64, 77 n. 6, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); United States v. Sw. Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968); Price, 361 U.S. at 313, 80 S.Ct. 326. On the other hand, the Supreme Court has been receptive to the use of subsequent legislation to interpret an earlier enactment. See, e.g., Heckler v. Turner, 470 U.S. 184, 211, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985); Bell v. New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983); Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 63 L.Ed.2d 36 (1980); Andrus v. Shell Oil Co., 446 U.S. 657, 666 n. 8, 100 S.Ct. 1932, 64 L.Ed.2d 593 (1980); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Tiger v. W. Inv. Co., 221 U.S. 286, 309, 31 S.Ct. 578, 55 L.Ed. 738 (1911).
. The Federal Circuit found that a later statute "was not unambiguously intended to clarify the meaning of the prior ... acts" at issue. Thompson, 334 F.3d at 1092. Under those circumstances, the court held that the later statute "[could ]not work a supposed clarification of the earlier ... acts.” Id.
. "Despite the dangers inherent in retroactive legislation, it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect.” INS v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
. "[Pjrecedent focuses upon private parties, and the analysis therefore only imperfectly applies to Congress's changes to governmental liability.” Lyons v. United States, 99 Fed.Cl. 552, 556 (2011).
. For example, in Hamdan v. Rumsfeld, the Supreme Court found that a jurisdiction-ousting statute did not apply to pending actions given its analysis using normal rules of construction. 548 U.S. 557, 577-80, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), superseded by statute on other grounds by Military Commissions Act of 2006, Pub.L. No. 109-366, 120 Stat. 2600. The Supreme Court stated that the absence of a provision reserving jurisdiction over pending actions in a jurisdiction-ousting statute is not dispositive. Hamdan, 548 U.S. at 578 n. 7, 126 S.Ct. 2749 (relying on, inter alia, Bruner v. United States, 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952)).
. Determining whether a statute operates retroactively “is not always a simple or mechanical task.” Landgraf, 511 U.S. at 268, 114 S.Ct. 1483. "Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity.” Id. at 270, 114 S.Ct. 1483. "However, retroactivity is a matter on which judges tend to have ‘sound ... instinct(s],‘ and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.” Id. (alteration in original) (citations omitted) (quoting Danforth v. Groton Water Co., 178 Mass. 472, 59 N.E. 1033, 1034(1901)).
. In this particular statute, the actor is never identified; there is no phrase indicating by whom a protest is not authorized. The sensible conclusion is that Congress, the author of the statute, does not authorize a protest.
. Cf. Salahuddin v. Mead, 174 F.3d 271, 275 (2d Cir.1999) ("[B]y limiting the exhaustion requirement to actions that ‘shall be brought,' Congress has expressly precluded application of that requirement to actions that have already been filed.”); Craig v. Eberly, 164 F.3d 490, 494 (10th Cir.1998) ("The language 'may be brought' clearly indicates that [the statute] applies only to cases commenced after its enactment, not to those pending at the time.”); Gibbs v. Ryan, 160 F.3d 160, 163 (3rd Cir.1998) ("We believe that if Congress had intended [to apply the three-strikes provision of the Prison Litigation Reform Act to pending cases,] it would not have limited the 'three strikes’ provision to an inmate’s ability to ‘bring’ an action. Congress could have tied the 'three strikes' bar to an inmate's, ability to maintain an action. It did not do so.”); Wright v. Morris, 111 F.3d 414, 418 (6th Cir.1997) ("[Because [the statute] governs only the bringing of actions, it does not affect pending cases.”); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) (interpreting the statutory language "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding" as only governing "bringing new actions or filing new appeals”); White v. Gregory, 87 F.3d 429, 430 (10th Cir.1996) ("Our review of the Act leads us to conclude the amendments to 28 U.S.C. § 1915 do not apply when, as in this case, *378the prisoner/appellant filed his notice of appeal before April 26, 1996, the date President Clinton signed the Act into law.”).
. As discussed, see infra Part II.C, absent the limitation on protests of civilian agency task or delivery orders, this Court has general bid protest jurisdiction over protests of task or delivery orders. Thus, the issue is whether the 2012 NDAA has withdrawn the court's jurisdiction over cases such as this one where the case was within the court's jurisdiction when filed. The Court’s conclusion that the language of the statute sufficiently indicates the prospective reach of the limitation on protests of task and delivery orders is buttressed by the principle that "withdrawal of Tucker Act jurisdiction by implication is disfavored, which means that a court must find that the statute at issue ... reflects an unambiguous congressional in [sic] intent to displace the Tucker Act’s waiver of sovereign immunity.” Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1336 (Fed.Cir.2007).
. In Hamdan, the Supreme Court indicated that both jurisdiction-creating and jurisdiction-ousting statutes may be substantive as well as jurisdictional. 548 U.S. at 582 n. 12, 126 S.Ct. 2749 ("While the Court ... [has] recognized that statutes 'creating' jurisdiction may have retroactive effect if they affect ‘substantive’ rights, we have applied the same analysis to statutes that have jurisdiction-stripping effect.” (citations omitted) (relying on Lindh, 521 U.S. 320, 117 S.Ct. 2059)).
. For example, the U.S. District Court for the District of Columbia recently held:
Unlike LaFontant, in which the petitioner was still permitted to seek relief in an agency proceeding, the statute in the instant case bars plaintiff from relief in any tribunal.... As such, it is not merely a jurisdictional statute, but rather it also affects substantive entitlement to relief. Accordingly, in the absence of an express provision to the contrary, the Court applies the general presumption against retro-activity. See LaFontant, 135 F.3d at 162-163.
Moses v. Dodaro, 774 F.Supp.2d 206, 211 (D.D.C. 2011).
. Wildflower both submitted its bid to the agency and filed its bid protest action in this court after the limitation on protests had expired and before the 2012 NDAA sought to restore the limitation. Because the issue is not before the Court, the Court does not address the effect that the limitation on protests of task or delivery orders would have had on this case had Wildflower either submitted its bid to the agency before the limitation expired on May 27, 2011 or filed its bid protest action with the court after the 2012 NDAA was enacted on December 31, 2011.
. With regard to the category of actions concerning violations of statute or regulation, Wildflower argues that, "[s]ince Wildflower’s complaint alleged that CBP failed to treat Wildflower fairly, Wildflower has sufficiently alleged a violation of a regulation in connection with a procurement.” Pl.’s Resp. to Def.’s & Intervenor’s Mots, to Dismiss & Mots, for J. on Administrative R. 16 n. 8 (discussing the directives contained in FAR 1.102-2(c)(1) and (c)(3)) (docket entry 47, Jan. 18, 2012). Because the Court has jurisdiction over Wildflower’s claims pursuant to its pre-award bid protest jurisdiction, the Court need not address whether it has jurisdiction by reason of an alleged violation of statute or regulation. See Sys. Application & Techs., Inc., 100 Fed.Cl. at 706 (”[A]n allegation [of a violation of statute or regulation] is unnecessary, however, when a complaint ... falls within the first prong of section 1491(b)(1).’’).
. Nothing in the record suggests that Wildflower's August 31, 2011 question and its answer were attached to or disclosed during the second solicitation. The contracting officer explained that the questions attached to the original solicitation on August 30, 2011 were reattached to the second solicitation with edits made to the answer to one particular question in order to clarify the timing of 802.lae compliance. AR Tab B, at 60. The record shows that the questions attached to the second solicitation (RFQ 20066877) were identical to those attached to the first (RFQ 20064082), except for alterations made to the answer dealing with the required time of 802.lae compliance. Compare AR Tab B, at 634-38 (questions attached to second RFQ), with AR Tab B, at 541-44 (questions attached to initial RFQ).
. Wildflower argues that Govplace was not prejudiced by the ambiguity in the solicitation. As discussed, in its review of an agency’s decision to take corrective action, the Court must assess whether the agency's decision was “rational, reasonable, and coherent and reflected] due consideration of all relevant factors.” Sys. Application & Techs., Inc., 100 Fed.Cl. at 716. Accordingly, whether Govplace was specifically prejudiced by the ambiguity is not dispositive. Here, the record makes clear, and the Court finds, that the agency considered "all relevant factors” and, as a result of such consideration, rationally sought to cure a reasonably perceived defect in the initial solicitation — namely the ambiguity surrounding the timing of 802.1ae compliance.
. According to the contracting officer, all offer-ors were told via a 4:39 p.m. e-mail on September 20, 2011 that the solicitation would be re-posted. AR Tab B, at 59. This was nearly one day before the solicitation was actually reposted on FedBid. Thus, all four offerors knew before the RFQ was reposted that they would be required to submit new proposals within a twenty-four hour period. See Mar. 14, 2012 Hr’g at 11:36:45.
. Wildflower also argues that it was "disparately” treated because the agency "did not release the prices of the other offerors to Wildflower, so Wildflower was the only offeror during the second round without the benefit of another offer- or's price.” Pl.’s Mot. 32 n. 16. The Court is not persuaded by this argument because, even had the agency released the prices of each offeror, in a lowest-price, technically acceptable, reverse auction procurement, Wildflower’s winning price would remain the most significant item of information.
. Govplace argues that when an agency’s decision to resolicit bids is made in "good faith,” then the court should not disturb that determination. Def.-Intervenor’s Mot. to Dismiss, for J. on Administrative R., & in Opp’n to Req. for Permanent Inj. 14 (citing Ceres Gulf, 94 Fed.Cl. at 318). The Court declines to adopt this formulation because ”[a]n agency acting in good faith may still violate th[e] standard” set forth in 5 U.S.C. § 706(2)(A). Sys. Application & Techs., Inc., 100 Fed.Cl. at 716 n. 21. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218278/ | *395OPINION
HORN, J.
At issue is a 3.46 mile right of way in Thurston County, Washington. The plaintiffs in this Longnecker class action allege that when the United States Department of Transportation, Surface Transportation Board (STB) issued a Notice of Interim Trail Use (NITU), pursuant to the National Trails System Act, 16 U.S.C. §§ 1241-1251 (2006), and authorized conversion of the railroad line for use as a public recreational trail, the federal government denied plaintiffs their re-versionary interest in the rights of way located on their properties, formerly occupied by a railroad. Plaintiffs, therefore, claim the United States effected a taking, compensable under the Fifth Amendment to the United States Constitution. This opinion addresses cross-motions for partial summary judgment regarding those deeds which conveyed only easements, and whether the scope of the easements was exceeded by the issuance of the NITU. Previously, on March 2, 2012, this court issued an Order dismissing certain claims which conveyed only fee interests. The facts established in the March 2, 2012 Order are incorporated into this opinion. Certain of the relevant facts are briefly repeated below, together with additional facts pertinent to this opinion.
FINDINGS OF FACT
The parties have stipulated that the majority of the railroad line in question was originally acquired by the Tacoma, Olympia and Gray’s Harbor Railroad Company (the TO & GHR) and its successor, the Northern Pacific Railway (the NPR). Between July 1890 and February 1911, the TO & GHR and the NPR acquired the land needed to construct the railroad by deeds granted by the plaintiffs’ predecessors in title to the railroad:1 Jane Adams and Mary and G.W. Carpenter,2 Charles and Gertrude Hochhaus,3 William Stewart,4 Allen and Ellen Weir,5 John M. and Sarah E. Patton,6 J.C. and Eva Ellis,7 David *396and Ella N. Fleetwood,8 Joseph and Almeda G. Rowe,9 George W. and Mary A. Carpenter,10 John M. and Jane Adams,11 David and Elizabeth Chambers,12 and Herman J. and Emilie G. Frase.13
The parties have stipulated that the deeds at issue in this opinion, the Patton Deed, the Ellis Deed, the Fleetwood Deed, the Rowe Deed, the Carpenter Deed, the Adams Deed, the Chambers Deed, and the Frase Deed, each titled, “Right of Way Deed” (collectively, the Right of Way Deeds), conveyed only easements to the TO & GHR. Despite variations in the grantors’ names, the dates the deeds were executed, the amount of consideration paid, and the property descriptions, the Patton Deed, the Ellis Deed, the Fleetwood Deed, the Rowe Deed, the Carpenter Deed, the Adams Deed, the Chambers Deed, and the Frase Deed contain nearly identical formats, including nearly identical granting, ha-bendum, and reverter clauses. The only differences between the granting, habendum, and reverter clauses in the Right of Way Deeds occur in spelling and punctuation, except that the Fleetwood Deed does not state the width of the right of way and the Adams Deed grants “a right of way One hundred and fifty feet in width,” comprised of “a strip of land Fifty feet in width on such each side of the center line ... [and] also a strip fifty feet wide on the south side of and adjoining such strip already described.” Examples of a few slight variations in the language of the other Right of Way Deeds are: the Patton Deed contains an additional stipulation that the TO & GHR build a fence on both sides of *397the right of way to protect livestock and the Ellis and Fleetwood Deeds state that the grant is for “One Dollar and other valuable considerations.” Neither provision is included in the other Right of Way Deeds.
Ownership of the railroad line transferred hands several times after the initial acquisitions by the TO & GHR and its successor the NPR, by operation of mergers. In 1970, the NPR merged with the Great Northern Railway Company and the Chicago Burlington and Quincy Railroad Company to become the Burlington Northern Railroad Company. Subsequently, the Burlington Northern Railroad Company merged with the Atchison Topeka and Santa Fe Railway Company to become the Burlington Northern and Santa Fe Railway Company (the Burlington Northern).
By 2002, the railroad line was out of service and the Burlington Northern and local authorities began discussing the fate of the line. On November 7, 2002, the City of Lacey wrote to counsel for the Burlington Northern regarding the rail line’s suitability for alternative, public use as a recreational trail and its request that, upon abandonment, “the roadbed and structures such as bridges, trestles, and culverts be left intact, to the extent that they are currently installed in this section of rail corridor. In the November 7, 2002 letter the City of Lacey also stated: “The Cities do not object to the removal of track materials, such as rails and ties.” On December 2, 2002, the City of Olympia informed the Burlington Northern that it agreed with the statements made by the City of Lacey.
On March 26,2004, the Cities of Lacey and Olympia filed a “request for both a Public Use Condition and a Trail Use” for the S.46 mile line at issue in this ease. On April 6, 2004, the Burlington Northern filed a Notice of Exemption to abandon 5.80 miles of railroad corridor between milepost 3.27 in Quad-lock, Washington and milepost 9.07 in Olympia, Washington. See BNSF Railway Co.14 —Abandonment Exemption—in Thurston Cnty., WA, STB Docket No. AB-6 (Sub. No. 410X), 2005 WL 678995 (S.T.B. Mar. 23, 2005). The 3.46 mile right of way was within the railroad corridor between Quadlock, Washington and Olympia, Washington, extending from milepost 3.27 in Quadloek to milepost 6.73 in Olympia. Id. After receiving notice that their original request was premature because it was filed before the railroad filed a Notice of Exemption, the Cities filed a new request on April 21, 2004. On April 26, 2004, the Burlington Northern filed a letter with the STB indicating that it did not object to the issuance of a NITU for the 3.46 mile line. On May 24, 2004, the STB issued a NITU for the 3.46 mile section of the line. See Burlington Northern & Santa Fe Ry. Co.—Abandonment Exemption—in Thurston Cnty., WA, STB Docket No. AB-6 (Sub. No. 410X), 2004 WL 1153050 (S.T.B. May 19, 2004). The STB’s ruling authorized the conversion of the railroad right of way into a recreational trail pursuant to 16 U.S.C. § 1247(d).
On November 22, 2004, the Cities of Lacey and Olympia and the Burlington Northern entered into a Railbanking and Bargain Sale Contract, which indicated:
pursuant to Section 1247(d) of the National Trails Systems Act, as amended, and the terms and conditions set forth herein, BNSF is willing to sell to Buyer at a substantially reduced purchase price all of BNSF’s right, title and interest, subject to any reservations set forth hereinbelow, (i) in a rail corridor and trail-related structures (including land, bridges, culverts, ballast and earthwork)_
The Railbanking and Bargain Sale Contract acknowledged the Burlington Northern’s right to reactivate and restore rail service on the property and the possibility that the Burlington Northern’s interest in the property, “may be subject to reversion upon abandonment of use for railroad purposes or cessation of interim trail use.”
On November 23, 2004, the Burlington Northern notified the STB that it had *398reached a trail use agreement for the 3.46 mile line. See BNSF Railway Co.—Abandonment Exemption—in Thurston Cnty., WA STB Docket No. AB-6 (Sub. No. 410X), 2005 WL 678995 (S.T.B. Mar. 23, 2005). On December 15, 2004, the Burlington Northern notified the STB that it had consummated the abandonment for the remainder of the line between milepost 6.73 and milepost 9.07. Id. On January 20, 2005, the Burlington Northern executed quit claim deeds granting its interests in the 3.46 mile railroad line to the Cities of Lacey and Olympia pursuant to the Railbanking and Bargain Sale Contract. The City of Olympia completed a trail on its portion of the right of way on December 1, 2007, and by December 31, 2009, the City of Lacey completed a trail on its portion of the right of way. From the record, it appears the tracks were removed from the rail line.
Thereafter, the plaintiffs filed their claims in the United States Court of Federal Claims, alleging that, following the issuance of the NITU for the 3.46 mile line section of the railroad, “[b]y operation of the Trails Act, the United States took Plaintiffs’ property for which it is Constitutionally obligated to pay just compensation,” pursuant to the Fifth Amendment to the United States Constitution. Subsequently, the plaintiffs filed a motion to certify this ease as a class action, citing to Rule 23 of the Rules of the United States Court of Federal Claims (RCFC). The defendant did not oppose certification, and the motion to certify the class was granted by the court. Subsequently, the plaintiffs filed an amended complaint. On March 2, 2012, this court issued an Order granting a motion by defendant for partial summary judgment, concluding that the deeds which conveyed a fee interest, the Adams/Carpenter Deed, the Hochhaus Deed, the Stewart Deed, and the Weir Deed, could not give rise to takings, and dismissed the claims depen-dant on those deeds which conveyed a fee interest.15
In the pending cross-motions for partial summary judgment, the parties have jointly stipulated to the material facts. The plaintiffs allege that the railroad owned only easements in certain portions of the right of way and seek a determination that interim toil use is outside the scope of those easements. By contrast, defendant alleges that railbank-ing with interim trail use is within the scope of the easements.
DISCUSSION
RCFC 56 is patterned on Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ. P.) and is similar, both in language and effect. Both rules provide 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.” RCFC 56(a) (2011); Fed.R.Civ.P. 56(a) (2012); see also Alabama v. North Carolina, — U.S. -, 130 S.Ct. 2295, 2308, 176 L.Ed.2d 1070 (2010); Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1325 (Fed.Cir.), reh’g denied (Fed.Cir.2010); Consol. Coal Co. v. United States, 615 F.3d 1378, 1380 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2990, 180 L.Ed.2d 821 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d 1350, 1355 (Fed.Cir.2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1378 (Fed.Cir.2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed.Cir.2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed.Cir.2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1139, 125 S.Ct. 2963, 162 L.Ed.2d 887 (2005); Cohen v. United States, 100 Fed.Cl. 461, 469 (2011); Boensel v. United States, 99 Fed.Cl. 607, 610 (2011). A fact is material if it will make a difference in the *399result of a ease under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; see also Thompson v. United States, 101 Fed.Cl. 416, 426 (2011); Cohen v. United States, 100 Fed.Cl. at 469. Irrelevant or unnecessary factual disputes do not preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. 2505; see also Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed.Cir.2001); Walker v. United States, 79 Fed.Cl. 685, 692 (2008); Curtis v. United States, 144 Ct.Cl. 194, 199, 168 F.Supp. 213, 216 (1958), cert. denied, 361 U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81 (1959), reh’g denied, 361 U.S. 941, 80 S.Ct. 375, 4 L.Ed.2d 361 (1960).
When reaching a summary judgment determination, the judge’s function is not to weigh the evidence and determine the truth of the case presented, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505; see, e.g., Schlup v. Delo, 513 U.S. 298, 332, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed.Cir.1998) (“Due to the nature of the proceeding, courts do not make findings of fact on summary judgment.”); Cohen v. United States, 100 Fed.Cl. at 469-70; Boensel v. United States, 99 Fed.Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed.Cl. 708, 717 (2011); Dick Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed.Cl. 113, 126 (2009); Johnson v. United States, 49 Fed.Cl. 648, 651 (2001), aff'd, 52 Fed.Appx. 507 (Fed.Cir.2002), published at 317 F.3d 1331 (Fed.Cir.2003). The judge must determine whether the evidence presents a disagreement sufficient to require submission to fact finding, or whether the issues presented are so one-sided that one party must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52, 106 S.Ct. 2505; Jay v. Sec’y of Dep’t of Health and Human Servs., 998 F.2d 979, 982 (Fed.Cir), reh’g denied and en banc suggestion declined (Fed.Cir.1993). When the record could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d 1306, 1316 (Fed.Cir.2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n. 3 (Fed.Cir.1996). In such a ease, there is no need for the parties to undertake the time and expense of a trial, and the moving party should prevail without further proceedings.
In appropriate cases, summary judgment:
saves the expense and time of a full trial when it is unnecessary. When the material facts are adequately developed in the motion papers, a full trial is useless. “Useless” in this context means that more evidence than is already available in connection with the motion for summary judgment could not reasonably be expected to change the result.
Dehne v. United States, 23 Cl.Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626 (Fed.Cir.1984)), vacated on other grounds, 970 F.2d 890 (Fed.Cir.1992) (citation omitted); see also Metric Constr. Co., Inc. v. United States, 73 Fed.Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; see also Takeda Pharm. Co. v. Doll, 561 F.3d 1372, 1375 (Fed.Cir.2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007), cert. denied, 555 U.S. 812, 129 S.Ct. 38, 172 L.Ed.2d 19 (2008); Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2001), cert. denied, 534 U.S. 1109, 122 S.Ct. 913, 151 L.Ed.2d 879 (2002); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350, 1353 (Fed.Cir.1999); Gonzales-McCaulley Inv. Group, Inc. v. United States, 101 Fed.Cl. 623, 629 (2011). In other words, if the non-moving party produces sufficient evidence to raise a question as to the outcome of the *400case, then the motion for summary judgment should be denied. Any doubt over factual issues must be resolved in favor of the party opposing summary judgment, to whom the benefit of all presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88, 106 S.Ct. 1348; Yant v. United States, 588 F.3d 1369, 1371 (Fed.Cir.2009), cert. denied, — U.S. -, 131 S.Ct. 69, 178 L.Ed.2d 23 (2010); Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed.Cir.2001), reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed.Cir.2002), cert. denied, 539 U.S. 957, 123 S.Ct. 2637, 156 L.Ed.2d 655 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v. Fedders Corp., 145 F.3d 1461, 1463 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371 (citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed.Cir.2000)); Boensel v. United States, 99 Fed.Cl. at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’ ” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88, 106 S.Ct. 1348; Casitas Mun. Water Dist. v. United States, 543 F.3d at 1283, Lathan Co. Inc. v. United States, 20 Cl.Ct. 122, 125 (1990))). “However, once a moving party satisfies its initial burden, mere allegations of a genuine issue of material fact without supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed.Cir.2009); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. 2505.
The initial burden on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact may be discharged if the moving party can demonstrate that there is an absence of evidence to support the nonmov-ing party’s ease. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed.Cir.2005); Crown Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed.Cir.), reh’g denied (Fed.Cir.2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741 (Fed.Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed.Cir.1994), reh’g denied and en banc suggestion declined (Fed.Cir.1995)), reh’g denied and en banc suggestion declined (Fed.Cir.1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1569 (Fed.Cir.1997); Dana R. Hodges Trust v. United States, 101 Fed.Cl. 549, 553 (2011). If the moving party makes such a showing, the burden shifts to the nonmoving party to demonstrate that a genuine dispute regarding a material fact exists by presenting evidence which establishes the existence of an element essential to its case upon which it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548; see also Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed.Cir.2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Florida Power & Light Co. v. United States, 375 F.3d 1119, 1124 (Fed.Cir.2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207 (Fed.Cir.2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed.Cir.2000). However, “a non-movant is required to provide opposing evidence under Rule 56(e) only if the moving party has provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1369 (Fed.Cir.2006).
Even if both parties argue in favor of summary judgment and allege an absence of genuine issues of material fact, the court is not relieved of its responsibility to determine the appropriateness of summary disposition in a particular case, and it does not follow that summary judgment should be granted to one side or the other. See Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987)); see also Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968-69 (Fed.Cir.2009); B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir.2001); Atl. Richfield Co. v. Farm Credit *401Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n. 5 (9th Cir.2000), cert. denied, 532 U.S. 942, 121 S.Ct. 1403, 149 L.Ed.2d 346 (2001); Bubble Room, Inc. v. United States, 159 F.3d 553, 561 (Fed.Cir.1998) (“The fact that both the parties have moved for summary judgment does not mean that the court must grant summary judgment to one party or the other.”), reh’g denied and en banc suggestion declined (Fed.Cir.1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir.1998); Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed.Cir.1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401 F.2d 689, 692 (4th Cir.1968), cert. denied, 393 U.S. 1083, 89 S.Ct. 866, 21 L.Ed.2d 776 (1969); Rogers v. United States, 90 Fed.Cl. 418, 427 (2009), subsequent determination, 93 Fed.Cl. 607 (2010); Consol. Coal Co. v. United States, 86 Fed.Cl. 384, 387 (2009), aff'd, 615 F.3d 1378 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2990, 180 L.Ed.2d 821 (2011); St. Christopher Assocs., L.P. v. United States, 75 Fed.Cl. 1, 8 (2006), aff'd, 511 F.3d 1376 (Fed.Cir.2008); Reading & Bates Corp. v. United States, 40 Fed.Cl. 737, 748 (1998). The court must evaluate each party’s motion on its own merits, taking care to draw all reasonable inferences against the party whose motion is under consideration, or otherwise stated, in favor of the non-moving party. See First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed.Cir.2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2001), cert. denied, 534 U.S. 1114, 122 S.Ct. 921, 151 L.Ed.2d 886 (2002); Oswalt v. United States, 85 Fed.Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v. United States, 71 Fed.Cl. 114, 119 (2006).
Cross-motions are no more than a claim by each party that it alone is entitled to summary judgment. The making of such inherently contradictory claims, however, does not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d at 593; Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir.1998); Rogers v. United States, 90 Fed.Cl. at 427; Reading & Bates Corp. v. United States, 40 Fed.Cl. 737, 748 (1998).
“Questions of law are particularly appropriate for summary judgment.” Oenga v. United States, 91 Fed.Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d 1344, 1347 (Fed.Cir.1999) (“Summary judgment was appropriate here [in Dana Corp.] because no material facts were disputed, many being stipulated, and the only disputed issues were issues of law. Moreover, on each issue one party or the other is entitled to judgment as a matter of law.”)). For the purposes of resolving the cross-motions for partial summary judgment currently before the court, the material facts are not in dispute. Therefore, the issues presented may be resolved by summary judgment.
The Right of Way Deeds
In their cross-motion for partial summary judgment, the plaintiffs seek “a threshold ruling” that the easements granted in the Right of Way Deeds “were easements limited to railroad purposes, and that recreational trail use exceeded the scope of such easements,” resulting in the defendant’s liability for takings, “absent other considerations specific to individual Plaintiffs’ properties.” By contrast, the defendant argues that, with respect to the properties governed by the Right of Way Deeds which granted easements, the plaintiffs cannot “show that rail: banking and interim trail use exceed the scope of the easements at issue under Washington law.”
Under the Tucker Act, the United States Court of Federal Claims has exclusive jurisdiction to render judgment upon any claim against the United States for money damages exceeding $10,000.00 that is “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) *402(2006). Therefore, “a claim for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. 498, 520, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)); see also Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1336 (Fed.Cir.2007); Morris v. United States, 392 F.3d 1372, 1375 (Fed.Cir.2004) (“Absent an express statutory grant of jurisdiction to the contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over takings claims for amounts greater than $10,000.”). The United States Supreme Court has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the [United States Court of Federal Claims] to hear and determine.” Preseault v. Interstate Commerce Comm’n,16 494 U.S. 1, 12, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (quoting United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946)); see also Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1368 (Fed.Cir.2005); Narramore v. United States, 960 F.2d 1048, 1052 (Fed.Cir.1992); Perry v. United States, 28 Fed.Cl. 82, 84 (1993).
The Takings Clause of the Fifth Amendment to the United States Constitution provides in pertinent part: “nor shall private property be taken for public use without just compensation.” U.S. Const, amend. V. The purpose of this Fifth Amendment provision is to prevent the government from “‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)); see also Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123-24, 98 S.Ct. 2646, 57 L.Ed.2d 631, reh’g denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005); E. Enters. v. Apfel, 524 U.S. at 522, 118 S.Ct. 2131; Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1266 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1501, 176 L.Ed.2d 109 (2010); Janowsky v. United States, 133 F.3d 888, 892 (Fed.Cir.1998); Resource Invs., Inc. v. United States, 85 Fed.Cl. 447, 469-70 (2009); Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166, 179, 20 L.Ed. 557 (1871) (citing to principles which establish that “private property may be taken for public uses when public necessity or utility requires” and that there is a “clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified.”).
To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that the government took a private property interest for public use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.Cir.2004), cert. denied, 546 U.S. 811, 126 S.Ct. 330, 163 L.Ed.2d 43 (2005); Arbelaez v. United States, 94 Fed.Cl. *403753, 762 (2010); Gahagan v. United States, 72 Fed.Cl. 157, 162 (2006). “The issue of whether a taking has occurred is a question of law based on factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78 (Fed.Cir.), cert. denied, 555 U.S. 1045, 129 S.Ct. 626, 172 L.Ed.2d 608 (2008).
The Federal Circuit has established a two-part test to determine whether government actions amount to a taking of private property under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.Cir.2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.), cert. denied, 516 U.S. 808, 116 S.Ct. 53, 133 L.Ed.2d 18 (1995)). A court first determines whether a plaintiff possesses a cognizable property interest in the subject of the alleged takings. Then, the court must determine whether the government action is a “ ‘compensable taking of that property interest.’ ” Huntleigh USA Corp. v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).
A takings plaintiff must have a legally cognizable property interest, such as the right of possession, use or disposal of the property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)); CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2459, 179 L.Ed.2d 1211 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed.Cir.), reh’g denied and en banc suggestion denied (Fed.Cir.2000), cert. denied, 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001). “ ‘It is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation.’ ” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001), cert. denied 535 U.S. 1077, 122 S.Ct. 1960, 152 L.Ed.2d 1021 (2002) and citing Cavin v. United States, 956 F.2d 1131, 1134 (Fed.Cir.1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d 1344, 1352 (Fed.Cir.2003) and M & J Coal Co. v. United States, 47 F.3d at 1154). The court does not address the second step “without first identifying a cognizable property interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed.Cir.) (citing Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States, 291 F.3d 1334, 1340 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003)), reh’g denied and reh’g en banc denied (Fed.Cir.2005). Only if there is to be a next step, “after having identified a valid property interest, the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest.” Huntleigh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372).
If a plaintiff has a valid property interest, the government takes that interest by destroying, physically occupying, or excessively regulating it for a public purpose. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., — U.S. -, 130 S.Ct. 2592, 2601, 177 L.Ed.2d 184 (2010); Boyle v. United States, 200 F.3d 1369, 1374 (Fed.Cir.2000). “ ‘When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.’ ” Brown v. Legal Found. of Wash., 538 U.S. 216, 233, 123 S.Ct. 1406, 155 L.Ed.2d 376 (2003) (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321-23, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002)) (citations omitted); see also John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1357 (Fed.Cir.) (“[A] permanent physical occupation by the government is a per se physical taking requiring compensation under the Fifth Amendment because it destroys, among oth*404er rights, a property owner’s right to exclude.”), reh’g en banc denied (Fed.Cir.2006), aff'd, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). The United States Supreme Court has indicated that when “deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.... ” Penn Central Transp. Co. v. City of New York, 438 U.S. at 130-31, 98 S.Ct. 2646. If a plaintiff does possess a property interest, the court decides if the “property has been deprived or abridged sufficiently to qualify as ‘taken.’ ” See Northwest La. Fish & Game Pres. Comm’n v. United States, 574 F.3d 1386, 1390 (Fed.Cir.2009) (quoting Members of Peanut Quota Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2005), cert. denied, 548 U.S. 904, 126 S.Ct. 2967, 165 L.Ed.2d 951 (2006)), cert. denied, — U.S. -, 130 S.Ct. 1072, 175 L.Ed.2d 886 (2010); see also Acceptance Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 2402, 176 L.Ed.2d 922 (2010); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003); Wyatt v. United States, 271 F.3d at 1099-1100; Karuk Tribe of Cal. v. Ammon, 209 F.3d at 1374.
The STB has authority to regulate most railroad lines in the United States. See 49 U.S.C. § 702 (2006). A railroad seeking to abandon any part of its railroad lines must either (1) file an application to abandon or (2) file a notice of exemption to abandon the line. See 49 U.S.C. § 10903 (2006); see also 49 C.F.R. § 1152.50 (2012). “If the STB approves a standard abandonment application or grants an exemption and the railroad ceases operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and state.law reversionary property interests, if any, take effect.” Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed.Cir.2004) (citing Preseault I, 494 U.S. at 6-8, 110 S.Ct. 914), reh’g en banc denied (Fed.Cir.), cert. denied, 546 U.S. 826, 126 S.Ct. 366, 163 L.Ed.2d 72 (2005).
Alternatively, by operation of the Trails Act, the STB may issue a NITU, “suspending exemption proceedings for 180 days to allow a third party to enter into an agreement with the railroad to use the right-of-way as a recreational trail.” Barclay v. United States, 443 F.3d 1368, 1371 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2006), cert. denied, 549 U.S. 1209, 127 S.Ct. 1328, 167 L.Ed.2d 81 (2007). Section 8(d) of the Trails Act, “allows a railroad to negotiate with a state, municipal, or private group (‘the trail operator’) to assume financial responsibility for operating the railroad right of way as a recreational trail.” See Bright v. United States, 603 F.3d 1273, 1275 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010) (citing Caldwell v. United States, 391 F.3d at 1229). If the railroad and an authorized trail provider17 reach an agreement, the NITU extends indefinitely, and the corridor is rail-banked, with interim trail use permitted. See 49 C.F.R. § 1152.29(d)(1)-(2) (current through April 19, 2012) (“The NITU will indicate that interim trail use is subject to future restoration of rail service ... [t]he NITU will also provide that, if the user intends to terminate trail use, it must send the [STB] a copy of the NITU and request that it be vacated on a specific date.”); see also Caldwell v. United States, 57 Fed.Cl. 193, 194 (2003) (quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903 n. 1 (8th Cir.1997)) (“The term railbanking refers to the ‘preservation of railroad corridor for future rail use,’ while making the corridor available for other activities.”), aff'd, 391 F.3d 1226 (Fed.Cir.2004), reh’g en banc denied (Fed.Cir.), cert. denied, 546 U.S. 826, 126 S.Ct. 366, 163 L.Ed.2d 72 (2005). When the NITU extends indefinitely and the corridor is railbanked, the STB retains jurisdiction and abandonment of the rail corridor is blocked. See 16 U.S.C. § 1247(d) (“[I]n the *405ease of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.”)-
As described by the United States Court of Appeals for the Federal Circuit:
Thus, section 8(g) of the Trails Act prevents the operation of state laws that would otherwise come into effect upon abandonment-property laws that would “result in extinguishment of easements for railroad purposes and reversion of rights of way to abutting landowners.” Rail Abandonments-Use of Rights-of-Way as Trails, Ex Parte No. 274 (Sub No. 13), 2 I.C.C.2d 591, 1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original easement granted to the railroad under state property law is not broad enough to encompass a recreational trail. See Preseault II, 100 F.3d at 1552; see also Toews [v. United States], 376 F.3d at 1376.
Caldwell v. United States, 391 F.3d at 1229.
The Federal Circuit has established a three-part inquiry to determine takings liability in cases involving the conversion of railroad rights of way to a recreational trail via 16 U.S.C. § 1247(d) of the Trails Act:
(1) who owned the strips of land involved, specifically did the Railroad ... acquire only easements, or did it obtain fee simple estates; (2) if the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; and (3) even if the grants of the Railroad’s easements were broad enough to encompass recreational trails, had these easements terminated pri- or to the alleged taking so that the property owners at that time held fee simples unencumbered by the easements.
Preseault II, 100 F.3d at 1533. Phrased differently, the Federal Circuit more recently indicated:
the determinative issues for takings liability are (1) who owns the strip of land involved, specifically, whether the railroad acquired only an easement or obtained a fee simple estate; (2) if the railroad acquired only an easement, were the terms of the easement limited to use for railroad purposes, or did they include future use as a public recreational trail (scope of the easement); and (3) even if the grant of the railroad’s easement was broad enough to encompass a recreational trail, had this easement terminated prior to the alleged taking so that the property owner at the time held a fee simple unencumbered by the easement (abandonment of the easement).
Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed.Cir.2009) (citing Preseault II, 100 F.3d at 1533).
As indicated above, the parties have stipulated that the Right of Way Deeds, “conveyed an easement to the acquiring railroad,” thereby addressing the first part of the Federal Circuit’s rails to trails takings inquiry.18 The court, therefore, turns to the second part of the rails to trails takings inquiry, the scope of the easements.
Scope of the Easements for the Right of Way Deeds
The Right of Way Deed from Joseph B. and Almeda G. Rowe to the TO & GHR, dated August 27, 1890, is representative of the Right of Way Deeds. The Rowe Deed reads:
This Indenture made and entered into this twenty seventh day of August, 1890, by and between Joseph B. Rowe and Almeda G. Rowe, his wife, of the County of Thur-ston in the State of Washington, party of the first part, and The Tacoma, Olympia and Gray’s Harbor Railroad Company a corporation duly incorporated and existing under the laws of the State of Washington, party of the second part, Witnesseth, That *406for and in consideration of the sum Seventy five Dollars in lawful money of the United States, to said party of the first part in hand paid by said party of the second part, the receipt whereof is hereby acknowledged, the said parties of the first part have granted, and hereby do grant to the said party of the second part, its successors and assigns, a right of way One hundred feet in width for the construction, operation and maintenance of said railroad company’s proposed line of railroad on, over, across and through the following described tracts or parcels of land situated in Thurston County, State of Washington, as follows, to wit: A portion of the Lyrus Hines donation claim in sections fifteen (15) and twenty two (22) in township eighteen (18) north range One (1) west more particularly described as follows: commencing at a stake in the center of the Olympia and Steilacoom road which stake is also on the west boundary of the said Hines donation claim and running thence due south forty (40) rods to a stake, thence at right angles east forty-two (42) rods to a stake on the bank of a small pond known as Goose Pond; thence due north fifty two and one fourth (52 1/4) rods, be the same more or less to the center of the foresaid road; thence southwesterly following the center of said road forty four and three fourths (44 3/4) be the same more or less to the place of beginning containing sixteen and sixty-five one hundredths (16 65/100) acres more or less, and said parties of the first part have granted, bargained and sold and by these presents do grant, bargain, sell and convey and wai’rant to said party of the second part, and to its successors and assigns, as and for such right of way, a strip of land fifty feet in width on each side of the centre line of said proposed railroad as heretofore surveyed and now located and staked out and hereafter to be19 constructed, operated and maintained upon, across, over and through the land hereinbefore described. To Have and to Hold the said strip of land to the said party of the second part, its successors and assigns, so long as the same shall be used for railroad purposes. Witness our hands and seals this twenty-seventh day of August, 1890.
As indicated above, although differences exist among the grantors’ names, the dates the deeds were executed, the amount of consideration paid, and the description of the land, the Patton Deed, the Ellis Deed, the Fleetwood Deed, the Rowe Deed, the Carpenter Deed, the Adams Deed, the Chambers Deed, and the Frase Deed contain nearly identical granting, habendum, and reverter clauses. The Right of Way Deeds granting clauses all state:
[T]he said parties of the first part have granted, and hereby do grant to the said party of the second part, its successors and assigns, a right of way One hundred feet in width for the construction, operation and maintenance of said railroad company’s proposed line of railroad on, over, across and through the following described tracts or parcels of land
[composed of] a strip of land fifty feet in width, on each side of the centre line of said proposed railroad as heretofore surveyed and now located and staked out and hereafter to be constructed, operated and maintained upon, across, over and through the land hereinbefore described.
Additionally, all of the Right of Way Deeds have the same habendum and reverter clauses: “To Have and to Hold the said strip of land to the said party of the second part, its successors and assigns so long as the same shall be used for railroad purposes.”20 As *407the Right of Way Deeds are essentially the same, the Right of Way Deeds will be examined together.
The United States Court of Appeals for the Federal Circuit has indicated that “[a] Fifth Amendment taking occurs if the original easement granted to the railroad under state property law is not broad enough to encompass a recreational trail.” Caldwell v. United States, 391 F.3d at 1229 (citing Preseault II, 100 F.3d at 1533). The Federal Circuit also has stated, “[i]t is settled law that a Fifth Amendment taking occurs in Rails-to-Trails cases when government action destroys state-defined property rights by converting a railway easement to a recreational trail, if trail use is outside the scope of the original railway easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed.Cir.2010), reh’g and reh’g en banc denied, 646 F.3d 910 (Fed.Cir.2011) (citing Ellamae Phillips Co. v. United States, 564 F.3d at 1373); see also Jenkins v. United States, 102 Fed. Cl. 598, 605 (2011); Dana R. Hodges Trust v. United States, 101 Fed.Cl. at 551. In Toews v. United States, 376 F.3d 1371 (Fed.Cir.), reh’g denied (Fed.Cir.2004), the Federal Circuit noted that “[i]t is elementary law that if the Government uses ... an existing railroad easement for purposes and in a manner not allowed by the terms of the grant of the easement, the Government has taken the landowner’s property for the new use. The consent of the railroad to the new use does not change the equation-the railroad cannot give what it does not have.” Id. at 1376.
There is no dispute that Washington State law controls to determine the scope of the easements for the Right of Way Deeds. The United States Court of Appeals for the Federal Circuit, interpreting a takings claim for a railroad right of way, was clear that “state law generally creates the property interest in a railroad right-of-way,” Barclay v. United States, 443 F.3d at 1374 (citing Preseault I, 494 U.S. at 8, 16, 110 S.Ct. 914), and in a footnote on the same page repeated, “[i]n Toews v. United States, 376 F.3d 1371 (Fed.Cir.2004), we reiterated that state law controls the basic issue of whether trail use is beyond the scope of the right-of-way.” Barclay v. United States, 443 F.3d at 1374 n. 4. “The nature of the interest conveyed is determined according to the law of the state where the conveyance occurred. ‘State law creates and defines the scope of the rever-sionary or other real property interests affected by the ICC’s [Interstate Commerce Commission] action pursuant to Section 208 of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).’ ” Chevy Chase Land Co. of Montgomery Cnty. v. United States, 37 Fed.Cl. 545, 565 (1997) (quoting Preseault I, 494 U.S. at 20, 110 S.Ct. 914 (O’Connor, J., concurring) (citing Ruckelshaus v. Monsanto Co., 467 U.S. at 1001, 104 S.Ct. 2862)), aff'd, 230 F.3d 1375 (Fed.Cir.1999), reh’g and reh’g en banc denied (Fed.Cir.), cert. denied, 531 U.S. 957, 121 S.Ct. 380, 148 L.Ed.2d 293 (2000); see also Whispell Foreign Cars, Inc. v. United States, 97 Fed.Cl. 324, 331 (“Whether an individual has a compensable private property interest is determined by state law.”), amended after recons, in part, 100 Fed.Cl. 529 (2011).
While Chevy Chase Land Co. of Montgomery County v. United States and Preseault I specifically addressed the application of state law to be applied in rails to trails eases, the United States Supreme Court has made similar pronouncements about state law governing how determinations are made regarding property conveyances. For example, in Ruckelshaus v. Monsanto Co., 467 U.S. at 1001, 104 S.Ct. 2862, the Supreme Court stated, “we are mindful of the basic axiom that “[property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.””’ (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972))) (omission in original). In Oregon ex rel. State Land Bd. *408v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977), the United States Supreme Court stated that, “[u]nder our federal system, property ownership is not governed by a general federal law, but rather by the laws of the several States.” Id. at 378, 97 S.Ct. 582; see also Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155, 64 S.Ct. 474, 88 L.Ed. 635 (1944) (“The great body of law in this country which controls acquisition, transmission, and transfer of property, and defines the rights of its owners in relation to the state or to private parties, is found in the statutes and decisions of the state.”). The Federal Circuit also has directed that state law determines whether trail use exceeds the scope of the easement. See generally Toews v. United States, 376 F.3d 1371; see also Preseault II, 100 F.3d at 1541-42.
Under Washington law, when an easement terminates because it is used for a purpose outside of the scope of the grant, “the land is discharged of the burden of the easement and the right to possession reverts to the original landowner_” Roeder Co. v. Burlington Northern, Inc., 105 Wash.2d 567, 716 P.2d 855, 859, recons. denied (Wash.1986) (footnote omitted); see also London v. City of Seattle, 93 Wash.2d 657, 611 P.2d 781, 787 (1980). The State of Washington Supreme Court in Morsbach v. Thurston County, 152 Wash. 562, 278 P. 686 (1929) held that a “ ‘grant of a right of way to a railroad company is the grant of an easement merely, and the fee remains in the grantor.’ ” Id. at 690 (quoting 1 Thompson on Real Property § 420); see also Washington Sec. and Inv. Corp. v. Horse Heaven Heights, Inc., 132 Wash.App. 188, 130 P.3d 880, 883 (“[I]f the right-of-way was granted to the railroad as an easement, then the [plaintiffs] would hold title to the land underlying the right-of-way and the railroad would merely maintain a right of use so long as it continued to operate its railway.”), review denied, 158 Wash.2d 1023, 149 P.3d 379 (2006).
According to the State of Washington Supreme Court, under Washington law, “when construing a deed, the intent of the parties is of paramount importance and the court’s duty to ascertain and enforce.” Brown v. State, 130 Wash.2d 430, 924 P.2d 908, 911, recons. denied (Wash.1996) (footnote omitted); see also Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n, 156 Wash.2d 253, 126 P.3d 16, 25-26 (2006); Wash. State Grange v. Brandt, 136 Wash.App. 138, 148 P.3d 1069, 1073 (2006) (“Generally, when construing a deed, the intent of the parties is of paramount importance and courts must ascertain and enforce such intent.”), review denied, 161 Wash.2d 1024, 171 P.3d 1054 (2007). The State of Washington Supreme Court also has concluded that, “[t]he interpretation of an easement is a mixed question of law and fact. What the original parties intended is a question of fact and the legal consequence of that intent is a question of law.” Sunnyside Valley Irr. Dist. v. Dickie, 149 Wash.2d 873, 73 P.3d 369, 372 (2003) (citing Veach v. Culp, 92 Wash.2d 570, 599 P.2d 526, 527 (1979)). The Sunnyside Valley court also offered standard contract interpretation guidance as applied to railroad deeds, stating:
The intent of the original parties to an easement is determined from the deed as a whole. Zobrist v. Culp, 95 Wash.2d 556, 627 P.2d 1308[, 1310] (1981). If the plain language is unambiguous, extrinsic evidence will not be considered. City of Seattle v. Nazarenus, 60 Wash.2d 657, 374 P.2d 1014[, 1019-20] (1962). If ambiguity exists, extrinsic evidence is allowed to show the intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties’ prior conduct or admissions.
Sunnyside Valley Irr. Dist. v. Dickie, 73 P.3d at 372 (other citations omitted); see also City of Seattle v. Nazarenus, 60 Wash.2d 657, 374 P.2d 1014, 1019-20 (1962) (“ ‘Where the language is unambiguous, other matters may not be considered; but where the language is ambiguous the court may consider the situation of the properly and of the parties, and the surrounding circumstances at the time the instrument was executed, and the practical construction of the instrument given by the parties by their conduct or *409admissions.’ ”) (quoting 28 C.J.S. Easements § 26, p. 680).21
The State of Washington Supreme Court, however, has applied the “context rule” to interpretation of railroad deeds. As indicated in Harris v. Ski Park Farms, Inc., “[t]his court has adopted the ‘context rule’ which succinctly stated is that ‘extrinsic evidence is admissible as to the entire circumstances under which [a] contract [is] made, as an aid in ascertaining the parties’ intent,’ specifically adopting the Restatement (Second) of Contracts §§ 212, 214(c) (1981).” Harris v. Ski Park Farms, Inc., 120 Wash.2d 727, 844 P.2d 1006, 1014, recons. denied (Wash. 1993), cert. denied, 510 U.S. 1047, 114 S.Ct. 697, 126 L.Ed.2d 664 (1994) (footnote omitted) (omissions in original); see also Brown v. State, 924 P.2d at 912 (“In addition to the language of the deed, we will also look at the circumstances surrounding the deed’s execution and the subsequent conduct of the parties.”). Citing to Brown v. State and Harris v. Ski Park Farms, Inc., the State of Washington Court of Appeals in Roeder Co. v. K & E Moving & Storage Co., Inc., noted that “the Supreme Court has recently ruled that, in light of Washington’s adoption of the ‘context rule’ for contracts, courts may look to extrinsic evidence along with the deed itself to determine the parties’ intent.” Roeder Co. v. K & E Moving & Storage Co., Inc., 102 Wash.App. 49, 4 P.3d 839, 841 n. 6 (citing Brown v. State, 924 P.2d at 912 and Harris v. Ski Park Farms, Inc., 844 P.2d at 1014), recons. denied, (Wash.Ct.App. 2000), review denied, 142 Wash.2d 1017, 16 P.3d 1264 (2001) (emphasis in original). To look first to the language of the source deeds, but then also to refer to the context of the deeds at their time of execution is reasonable, given their age and the sometimes stilted language used. The meaning of the source deeds is not always clear’ to a reader in some instances more than 100 years later, creating possible ambiguities.
The plaintiffs argue that “the issuance of the NITU authorizing conversion of the railroad right-of-way for use as a recreational trail is beyond the scope of the easements.” The plaintiffs allege that use as a recreational trail is not within the permissible uses of the easements granted in the Right of Way Deeds, and, therefore, takings by the government result. At oral argument, the defendant admitted that the easements were for railroad purposes, stating, “[t]he government doesn’t dispute that these easements are for railroad purposes,” but indicated that the disagreement with the parties as to scope stems instead from what is encompassed within the terminology of “railroad purposes.”
All of the Right of Way Deeds specifically state that “the said parties of the first part have granted, and hereby do grant to the said party of the second part, its successors and assigns, a right of way One hundred feet in width for the construction, operation and maintenance of said railroad company’s proposed line of railroad on, over, across and through the following described tracts or parcels of land ... [of] said proposed railroad as heretofore surveyed and now located and staked out and hereafter to be constructed, operated and maintained upon, across, over and through the land here-inbefore described.” The habendum clauses indicate that the property is “To Have and to Hold ... so long as the same shall be used for railroad purposes.” Therefore, plaintiffs argue, the Right of Way Deeds “are limited by their terms to railroad purposes.” The language chosen by the source deed grantors in the Right of Way Deeds when granting the easements to the TO & GHR is specific and clear. The intention of the easements was to permit the railroad access for “construction, operation and maintenance ... so *410long as the same shall be used for railroad purposes.”
Moreover, there is no dispute that a railroad line was actually constructed and was operational on the impacted properties. For example, as the defendant states, “[t]he rail line was, at least in part, constructed and in operation by 1894, because the March 20, 1894, deed from William A. Stewart references ‘the center line of the Grantee’s railroad as the same is now constructed and operated,’ ” and further states that “[n]ot all of the corridor was acquired before the rail line had been constructed. The grants in fee by warranty deeds from William A. Stewart, dated March 20, 1894, and from Charles and Gertrude Hochhaus, dated February 27, 1911, both indicate that the railroad has been ‘constructed and operated.’ ”
The plain language limitation in all the Right of Way Deeds, that the “said strip of land to the said party of the second part, its successors and assigns so long as the same shall be used for railroad purposes,” does not allow for use as a recreational trail. A recreational trail, for walking, hiking, and biking is inconsistent with the easements granted specifically for “railroad purposes.” As the United States Court of Appeals for the Federal Circuit in Toews v. United States stated:
[I]t appears beyond cavil that use of these [railroad] easements for a recreational trail — for walking, hiking, biking, picnicking, frisbee playing, with newly-added tarmac pavement, park benches, occasional billboards, and fences to enclose the trail-way — is not the same use made by a railroad, involving tracks, depots, and the running of trains. The different uses create different burdens. In the one ease there was an occasional train passing through.... In the other, individuals or groups use the property, some passing along the trail, others pausing to engage in activities for short or long periods of time.
Toews v. United States, 376 F.3d at 1376. Further, as stated by the Toews court, “[s]ome might think it better to have people strolling on one’s property than to have a freight train rumbling through. But that is not the point. The landowner’s grant authorized one set of uses, not the other.” Id. at 1376-77; see also Thompson v. United States, 101 Fed.Cl. at 433 (“In this ease, by contrast, conversion of the Railroad easements into a public recreational trail transforms the nature of the easement and is substantially different from the original use.”). A Judge of the United States Court of Federal Claims also wrote:
A railroad, or a highway for public travel, has the primary purpose of transporting goods and people. The purpose of a recreational trail is fundamentally different. A bicycle trail does not exist to transport people but rather to allow the public to engage in recreation and enjoy the outdoors. The two uses are distinct and an easement for a recreational trail is not like in kind to an easement for railroads.
Capreal, Inc. v. United States, 99 Fed.Cl. 133, 145 (2011).
Although the plain language of the Right of Way Deeds indicates that the Right of Way Deeds granted easements for the construction, operation and maintenance of the rail line and for railroad purposes, the State of Washington Supreme Court has instructed courts to look at the circumstances surrounding the deed’s execution and the subsequent conduct of the parties. As noted above, in Harris v. Ski Park Farms, Inc., 844 P.2d at 1014, the State of Washington Supreme Court rejected the requirement that ambiguity in the contract language must exist before allowing evidence of the “surrounding circumstance,” in the case of railroad deeds. The Harris court instead “adopted the ‘context rule’ which succinctly stated is that ‘extrinsic evidence is admissible as to the entire circumstances under which [a] contract [is] made, as an aid in ascertaining the parties’ intent,’ specifically adopting the Restatement (Second) of Contracts §§ 212, 214(c) (1981).” Id. (footnote omitted) (omissions in original); see also Brown v. State, 924 P.2d at 912 (“In addition to the language of the deed, we will also look at the circumstances surrounding the deed’s execution and the subsequent conduct of the parties.”); Roeder Co. v. K & E Moving & Storage Co., Inc., 4 P.3d at 841 n. 6 (noting that Washington State courts should “consider both the deed and the extrinsic evidence.”) (citing Brown v. State, 924 *411P.2d at 912 and Harris v. Ski Park Farms, Inc., 844 P.2d at 1014). In the Longnecker class action, however, the limited record before this court does not provide any contextual information relevant to the intent of the parties at the time of the signing of the Right of Way Deeds to suggest that the grantors conveyed anything other than easements which were intended to assist with the construction, operation and maintenance of the railway line so long as the easements were used for railroad purposes. Therefore, the court relies on the plain language of the conveyances that the scope of the easements was limited to the construction, operation and maintenance of the railway line, “so long as the same shall be used for railroad purposes.”
Plaintiffs rely on Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986), to argue that issuance of the NITU authorizing conversion of the railroad line for use as a public recreational trail under the Trails Act is beyond the original scope of the easements.22 According to plaintiffs, the issue “virtually begins and ends with a discussion of Lawson v. State, a State of Washington Supreme Court ease that is directly on point and was discussed and quoted with approval by the Federal Circuit in the seminal case of Preseault II.” In Preseault II, as discussed above, the Federal Circuit established a three-part takings analysis. The Federal Circuit endorsed the reasoning in Lawson, noting the similarity of the Lawson ease to the case under consideration in Preseault II. The Preseault II court discussed the Lawson ease at length and stated: “[m]ost state courts that have been faced with the question of whether conversion to a nature trail falls within the scope of an original railroad easement have held that it does not. Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986) (in banc), is an example of a case practically on all fours with the case before us.” Preseault II, 100 F.3d at 1543. The Federal Circuit proceeded to provide an in-depth summation of the Lawson ease as follows:
The Burlington Northern Railroad Company petitioned the ICC23 for permission to discontinue rail service over a certain right-of-way. King County requested the ICC to determine that the right-of-way was suitable as a public recreational trail, and to require that it be offered for sale for public purposes. The ICC did so under its Rails-To-Trails authority, and King County acquired the right-of-way from the Raih’oad.
The property owners who owned the underlying fee estates sued in Washington State court for a declaratory judgment that this was an unlawful taking without just compensation. The trial court held for the County. The Washington Supreme Court, in banc, reversed. The Court stated the common law rule to be that when a deed conveys a right-of-way for railroad purposes only, upon abandonment by the railroad of the righCof-way the land over which the right-of-way passes “reverts” to the reversionary interest holder (the owner of the fee estate) free of the easement.
The [Lawson ] court then stated:
In addition to outright abandonment of a right of way, there may be a change in *412use of the right of way which is inconsistent with the purpose for which the right of way was granted. Where the particular use of an easement for the purpose for which it was established ceases, the land is discharged of the burden of the easement and right to possession reverts to the original land owner or to that landowner’s successor in interest.
Id., 730 P.2d at 1312. The [Lawson ] court went on to hold that a hiking and biking trail is not encompassed within a grant of an easement for railroad purposes, citing cases from Illinois and Wisconsin, and concluded that “[a]pplying common law principles, we hold that a change in use from ‘rails to trails’ constitutes abandonment of an easement which was granted for railroad purposes only.24 At common law, therefore, the right of way would automatically revert to the reversionary interest holders.” Id., 730 P.2d at 1313. The court went on to hold that a state statute which purported to prevent the ripening of the reversionary interest upon abandonment was unconstitutional as applied to the vested property rights of the plaintiffs “insofar as it purports to authorize King County to acquire without payment of just compensation existing reversionary interests which follow easements for railroad purposes only.” Id., 730 P.2d at 1316.
The Court thus concluded that “King County cannot acquire the [ ] right of way from Burlington Northern without payment of just compensation to the rever-sionary interest holders. If the County takes this right of way and commences to build a recreation trail, it does so in violation of the constitution.” Id.
Preseault II, 100 F.3d at 1543-44 (footnote omitted, omissions in original).
In response, defendant states that “[i]t is no surprise that, as Plaintiffs note in their brief, the Federal Circuit found Lawson to be ‘practically on all fours’ with Preseault II.” Despite extensive discussion and reliance on Lawson by the United States Court of Appeals for the Federal Circuit in Preseault II, defendant argues that, although the Federal Circuit found Lawson to be persuasive, Lawson “provides absolutely no guidance and has no application to the facts of this case” because the question before the court was the constitutionality of Washington state statutes25 authorizing the use of a railroad corridor for public nonrailroad use without compensation and, thus, did not involve the Trails Act or railbanking.
Defendant also argues that Lawson is inapplicable to this case because it did not consider the Trails Act or railbanking, and cites to Good v. Skagit County, 104 Wash.App. 670, 17 P.3d 1216, review denied, 144 Wash.2d 1013, 32 P.3d 283 (2001). Good v. Skagit County, a Washington Court of Appeals decision, which is not a State of Washington Supreme Court decision, and which holds only that the Trails Act “preempts state law on just compensation remedies such that a petitioner [alleging a Trails Act taking] must bring a claim for just compensation under the Tucker Act in the Federal Court of Claims.” Good v. Skagit Cnty., 17 P.3d at 1217; see also 28 U.S.C. § 1491; Preseault I, 494 U.S. at 11-17, 110 S.Ct. 914 (finding that the remedy for any taking caused by the Trails Act was a Tucker Act remedy).
*413There is no disagreement that an alleged Trails Act, takings claim must be filed in the United States Court of Federal Claims. See 28 U.S.C. § 1491; Toscano v. United States, 98 Fed.Cl. 152, 153 (2011) (quoting Morris v. United States, 392 F.3d 1372, 1375 (Fed.Cir.2004) (“ ‘[T]he Tucker Act provides the Court of Federal Claims exclusive jurisdiction over takings claims for amounts greater than $10,000.’ ”)). The Lawson reasoning is relevant to decisions in this court because it was adopted by the United States Court of Appeals for the Federal Circuit in Preseault II, as a ease “on all fours with the case before us,” therefore, is not only relevant, but binding on the decisions issued by this court, which must follow the Federal Circuit directives. See Strickland v. United States, 423 F.3d 1335, 1338 n. 3 (Fed.Cir.) (“Ordinarily, a trial court may not disregard its reviewing court’s precedent. There are two narrow exceptions: if the circuit’s precedent is expressly overruled by statute or by a subsequent Supreme Court decision.”) (citing Crowley v. United States, 398 F.3d 1329, 1335 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.), cert. denied, 546 U.S. 1031, 126 S.Ct. 733, 163 L.Ed.2d 569 (2005) and Bankers Trust N.Y. Corp. v. United States, 225 F.3d 1368, 1372 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2000), reh’g en banc denied (Fed.Cir.2005)); see also Hall v. Sec’y of Dep’t of Health and Human Servs., 93 Fed.Cl. 239, 247 (“This court may not ignore the binding precedent of the Federal Circuit unless the United States Supreme Court or a federal statute expressly overrules that precedent.” (citing Strickland v. United States, 423 F.3d at 1338)), recons. denied (2010), aff'd 640 F.3d 1351 (Fed.Cir.), cert. denied sub nom. Hall v. Sebelius, — U.S. -, 132 S.Ct. 815, 181 L.Ed.2d 525 (2011). Moreover, in Preseault II, the Federal Circuit indicated that “if the easements were in existence in 1986 when, pursuant to ICC Order, the City of Burlington established the public recreational trail, its establishment could not be justified under the terms and within the scope of the existing easements for railroad purposes. The taking of possession of the lands owned by the Preseaults for use as a public trail was in effect a taking of a new easement for that new use, for which the landowners are entitled to compensation.” Preseault II, 100 F.3d at 1550.
The defendant further alleges that the procedural posture of the Lawson ease dictated that the Lawson plaintiffs’ factual allegations were presumed true, and, therefore the Lawson case did not address the language of the deeds. It is correct that the State of Washington Supreme Court stated, “we emphasize at the outset that the trial court dismissed this ease on King County’s motion to dismiss for failure to state a claim upon which relief can be granted,” and “the plaintiffs’ factual allegations are presumed to be true,” for a failure to state a claim motion. Id. at 1310—11. Regardless of the posture of the case before the State of Washington Supreme Court, the basic position of the State of Washington Supreme Court on the scope of railroad easements is clear, subject to application of the specific facts of each ease. The Lawson court enunciated important guidance for rails to trails eases involving Washington State property, guidance which was then adopted by the United States Court of Appeals for the Federal Circuit in Preseault II, as follows: “[djefendants argue that under Washington law a railroad is a perpetual public easement. They contend that a railroad right of way easement does not terminate upon a change from one transportation use to another transportation or recreation use, or any other consistent public use. We disagree.” Id. at 1311.
Railbanking and Interim Trail Use
Defendant further argues that there are decisions which have concluded that conversion to interim trail use does not exceed the scope of easements. In support of its argument that railbanking with interim trail use in the Longnecker class action is within the scope of the easements because it is a railroad purpose, the defendant cites Chevy Chase Land Co. of Montgomery County v. United States, 230 F.3d 1375, 1999 WL 1289099 (Fed.Cir. Dec. 17, 1999) (unpublished table decision),26 reh’g and reh’g en *414banc denied (Fed.Cir.), cert. denied 531 U.S. 957, 121 S.Ct. 380, 148 L.Ed.2d 293 (2000). Defendant argues that the Chevy Chase Land Co. court applied Maryland law and rejected a takings claim “ ‘on the state law ground that the original easement authorizes the current recreational trail use’ and noting that under Maryland law, the railbanking process ‘did not work an abandonment of the easement.’ ” (quoting Chevy Chase Land Co. of Montgomery Cnty. v. United States, 230 F.3d 1375, 1999 WL 1289099, at *3). Responding to a certification request from the United States Court of Appeals for the Federal Circuit, Chevy Chase Land Co. of Montgomery Cnty. v. United States, 158 F.3d 574 (Fed.Cir.1998), the Maryland Court of Appeals, interpreting a 1911 Maryland railroad deed, concluded: “We believe it indisputable that use of the right-of-way as a trail is consistent with its essential nature relating to the ‘passing] over land of another’ and is a reasonable use of a general right of way. Accordingly, the scope of the right-of-way in the instant case encompasses use as a hiker/biker trail.” Chevy Chase Land Co. v. United States, 355 Md. 110, 733 A.2d 1055, 1076 (1999). After the Maryland Court of Appeals responded to the certification request, the Federal Circuit, in a brief, unpublished decision adopted the state court’s interpretation, and rejected plaintiffs claim for an unconstitutional taking in the State of Maryland. Chevy Chase Land Co. of Montgomery Cnty. v. United States, 230 F.3d 1375, 1999 WL 1289099, at *2. The Federal Circuit stated:
The Court of Appeals’ answers to the certified questions, which we accept, state that the current recreational trail use of the easement is a permissible use, no acts of abandonment of that use being shown. Consequently, as we stated in Preseault, the servient estate holder, here the Land Company, cannot show a property interest that has been impermissibly taken. We do not consider the Country Club’s new state law argument, see Jay v. Secretary of Health & Human Servs., 998 F.2d 979, 983, n. 4 (Fed.Cir.1993), and thus the Country Club lacks grounds to support its takings claim.
Chevy Chase Land Co. of Montgomery Cnty. v. United States, 230 F.3d 1375, 1999 WL 1289099, at *3. Notably, the Federal Circuit indicated that the Maryland Court of Appeals held that “since the easement [in the 1911 conveyance] is not limited in scope to railroad purposes, and embraces the current trail use, ‘a party alleging abandonment must show more than an intent to abandon railroad service.’” Id. at *2 (quoting Chevy Chase Land Co. v. United States, 733 A.2d at 1080). As this court has determined above, the scope of the Right of Way Deeds in the Longnecker class action was limited to railroad purposes, and, therefore, the Federal Circuit’s brief, unpublished decision adopting a State of Maryland court’s interpretation of Maryland law, carries little weight with this court when interpreting State of Washington property and source deeds with clear “railroad purposes” language regarding the intent of the source deed easements granted.
Defendant also cites to State by Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543 (Minn.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3540, 77 L.Ed.2d 1390 (1983), in which the Supreme Court of Minnesota interpreted railroad deeds under Minnesota law. See id. at 545-46.27 The State by *415Washington Wildlife Preservation, Inc. court stated:
Significantly, however, none of the deeds expressly limit the easement to railroad purposes, provide that the interest conveyed terminates if use for railroad purposes ceases, or provide that the easement would exist only for so long as the right-of-way was used for railroad purposes. While the grantors were undoubtedly aware that a railroad would be constructed on the land, none of the deeds limit the use to railroad purposes.
Id. at 546. The State by Washington Wildlife Preservation, Inc. court also stated that the “[u]se of the right-of-way as a recreational trail is consistent with the purpose for which the easement was originally acquired, public travel, and it imposes no additional burden on the servient estates.” Id. at 545. As noted above, however, this court has concluded that the language of the Right of Way Deeds in the Longnecker class action is clear and was limited to railroad purposes. In sum, the Right of Way Deeds did not establish trail use as within the scope of the easements at issue regarding the plaintiffs included in the Longnecker class action. Moreover, in Lawson v. State, the Washington case which comes closest to addressing the issue before this court, the State of Washington Supreme Court rejected the proposition that an easement granted for railroad purposes could be used for any public transportation purpose and indicated that under State of Washington law a recreational trail is outside the scope of a railroad purpose easement. See Lawson v. State, 730 P.2d at 1312. Neither Chevy Chase Land Co. or State by Washington Wildlife Preservation, Inc. holds that railbanking with interim trail use is a railroad purpose; instead, the court in each ease interprets the easements included in the particular deeds at issue in those eases to include more than railroad purposes. See Chevy Chase Land Co. of Montgomery Cnty. v. United States, 230 F.3d 1375, 1999 WL 1289099, at *2; State by Wash. Wildlife Pres., Inc. v. State, 329 N.W.2d at 545.
Defendant also looks to the text of the Right of Way Deeds to try and demonstrate that railbanking is a railroad purpose, noting that the easements were granted for the “construction, operation and maintenance of said railroad company’s proposed line of railroad.” (emphasis added). The defendant argues that “railbanking and interim trail use are wholly consistent with, and within the scope of, easements granted for future railroad construction, operation and maintenance” because “[rjailbanking and interim trail use conserves the corridor for future active rail service.” (emphasis in original). Therefore, according to defendant, “[tjhere is no specified time period within which the railroad must construct the rail line,” and “[pjlaintiffs now are in exactly the same situation as the original grantors of the easements to the railroad. The railroad has a current property interest in the corridor for future railroad construction, operation and maintenance.” In response, plaintiffs stress “[tjhe government’s argument that the easements contemplated future railroad use just highlights that future trail use was not contemplated ... the railroad purpose easement does not contemplate use of the line as a recreational trail; the railroad purpose easement never allowed the railroad to build a recreational trail.” (emphasis in original). Plaintiffs argue that “[i]f one accepts the government’s logic, then it would not matter what the railroad used the easement for, so long as it had the right to use the line in the future as a railroad.”
The language at issue in the Right of Way Deeds states that a right of way is granted “for the construction, operation and maintenance of said railroad company’s [referencing the TO & GHR] proposed line of rail-road_” (emphasis added). The rail line contemplated was, as indicated above, constructed, operated and maintained pursuant to the source deed easements. The entire context of the source deeds was for railroad purposes. There is no indication that use as a recreational trail, or even construction of another, separate or replacement railroad *416line in the future was anticipated by the grantors in the late 1890s or 1900s. The source deed grantors conveyed the easements to the TO & GHR for the benefit of a rail line constructed at the time and did not contemplate interruption of the use of the easement for other purposes, such as a recreational trail, followed by construction of a new railroad line more than one hundred years later. The government’s claim, that from now until time immemorial, and at any unspecified time in the future, a rail line could be constructed that would be within the scope of the source deed easements, in order to avoid responsibility for takings claims, creates an unfair burden on the land for property owners.
In addition, the Federal Circuit in Toews v. United States suggested that the government cannot escape takings liability for imposing a trail use outside the scope of a railroad easement by asserting that the use is railbanking, with interim trail use:
As a result of the imposition of the recreational trail and linear park, the easement for railroad purposes was converted into a new and different easement. The references in the ICC’s and the City of Clovis’s various documents to railbanking and possibility that one day the railroad easements might be used for a light rail system do not change the analysis. There is a reality test in takings law. It is clear from the record that for the foreseeable future these lands will be used for the recreational trail project. Whether there ever will be a light rail system or other railroad service over these paved routes in Clovis is a matter of speculation_Such speculation does not provide a basis for denying protection to existing property rights under the Constitution.
Toews v. United States, 376 F.3d at 1381.
The defendant also cites to Troha v. United States, 692 F.Supp.2d 550 (W.D.Pa.2010), for the proposition that railbanking with interim trail use is within the scope of railroad purpose easements. In Troha, the United States District Court for the Western District of Pennsylvania found that easement deeds “for the purposes of said Railroad” and limited to “ ‘railroad purposes’ ” encompassed use as a public recreational trail under Pennsylvania law because railbanking with interim trail use preserves future rail service by conserving the right of way in a “ Tail-ready state’ ” and allowing “ ‘investment in the upkeep of rail networks....’” Id. at 563 (quoting Moody v. Allegheny Valley Land Trust, 601 Pa. 655, 976 A.2d 484, 491-92 (2009)). The court in Troha relied on another Pennsylvania decision, Moody v. Allegheny Valley Land Trust, and borrowed language from Moody regarding the railroad purposes served by railbanking. See Moody v. Allegheny Land Trust, 976 A.2d at 491-92 (terming railbanking “a method of rail maintenance and preservation” which “provides conservation of this right-of-way in a rail-ready state during a period when rail service is not feasible ... [and] preserves rail networks for the purposes of rail service in the future”). The Moody court, in turn, relied on another Pennsylvania court case, Buffalo Township v. Jones, 778 A.2d 1269 (Pa.Commw.Ct.2001), aff'd, 571 Pa. 637, 813 A.2d 659 (2002), reargument denied (Pa.), cert. denied, 540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 41 (2003), for the proposition that, under Pennsylvania law, a railroad does not abandon a right of way by transferring it to a trail operator for railbanking with interim trail use because railbanking preserves a railroad corridor. See Moody v. Allegheny Land Trust, 976 A.2d at 489 (“In Buffalo Township, this Court established that private railbanking is valid as long as the terms of the railbanking are in compliance with Section 1247(d) of the National Act-Rail-banking consistent with the requirements of Section 1247(d) means that the right-of-way is preserved for future use by another rail operator-”).
Washington State law, not Pennsylvania State law, controls the case at bar. See Preseault I, 494 U.S. at 20, 110 S.Ct. 914 (O’Connor, J., concurring); Toews v. United States, 376 F.3d at 1371; Preseault II, 100 F.3d at 1534-49; Whispell Foreign Cars, Inc. v. United States, 97 Fed.Cl. at 331. No State of Washington case has been identified which has considered whether railbanking is a railroad purpose, and no State of Washington case has cited to Troha. In fact, the State *417of Washington Supreme Court rejected the concept that a railroad easement could constitute a perpetual public easement under Washington law in Lawson v. State, 730 P.2d at 1313. Moreover, no federal court has relied on the holding in Troha that railbank-ing with interim trail use preserves future rail service. In fact, the only court to cite to the Troha decision is the United States Court of Federal Claims. For example, in a footnote in Raulerson v. United States, 99 Fed.Cl. 9, 12 n. 2 (2011), the court cited to Troha and stated: “But see Troha v. United States, 692 F.Supp.2d 550, 559-60 (W.D.Pa.2010) (holding that railbanking agreement precluded finding of abandonment).” Raulerson v. United States, 99 Fed.Cl. at 12 n. 2. In Biery v. United States, 99 Fed.Cl. 565 (2011), the court noted that included in the defendant’s submissions to the court was a letter supplementing earlier pleadings regarding the Moody and Troha cases. See Biery v. United States, 99 Fed.Cl. at 568 n. 2. Troha remains an outlier as compared to other cases applying state law to interpret railroad easements.
The characterization of railbanking as a railroad purpose within the scope of the easement in Troha also conflicts with the Federal Circuit’s direction requiring courts to evaluate whether trail use is within the scope of an easement. See Ladd v. United States, 630 F.3d at 1019 (“It is settled law that a Fifth Amendment taking occurs in Rails-to-Trails eases when government action destroys state-defined property rights by converting a railway easement to a recreational trail, if trail use is outside the scope of the original railway easement.”); see also Ellamae Phillips Co. v. United States, 564 F.3d at 1372-73 (citing the Preseault II factors as the “determinative issues for takings liability” in eases arising under the Trails Act); Caldwell v. United States, 391 F.3d at 1229 (“A Fifth Amendment taking occurs if the original easement granted to the railroad under state property law is not broad enough to encompass a recreational trail.” (citing Preseault II, 100 F.3d at 1552 and Toews v. United States, 376 F.3d at 1376)).
Moreover, courts in this Circuit have declined to find railbanking a railroad purpose or even a relevant consideration for analysis of a claim for a Trails Act taking. See, e.g., Preseault II, 100 F.3d at 1554 (Rader, J., concurring) (Rejecting the railbanking argument as a “vague notion” incapable of overriding the present use of the property as a recreational trail.); Capreal, Inc. v. United States, 99 Fed.Cl. at 146 (Interpreting Massachusetts law in which the court stated, “that railbanking is too hypothetical and unlikely to serve as a railroad purpose.”); Nordhus Family Trust v. United States, 98 Fed.Cl. 331, 339 (2011) (Interpreting Kansas law, the court stated, “[i]n the present case, there is no evidence of any plan to reactivate the rail service — simply a speculative assertion by Defendant that some resumed rail service could occur in the future. The transfer of the easement to entities completely unconnected with rail service, and the removal of all rail tracks on the corridor, lead the Court to conclude that any future rail use simply is unrealistic.”);28 Macy Elevator, Inc. v. United States, 97 Fed.Cl. at 730 (Interpreting Indiana law and relying on Preseault II to deem railbanking “irrelevant to the question of whether a taking has occurred.”); Rogers v. United States, 90 Fed.Cl. at 432 (Interpreting Florida law and indicating, “[h]ere, as in Preseault II, the use of the right-of-way as a public trail while preserving the right-of-way for future railroad activity was not something contemplated by the original parties to the Honoré conveyance back in 1910.”); Glosemeyer v. United States, 45 Fed.Cl. 771 (2000) (Interpreting Missouri law, the court stated, “[i]n sum, neither component of railbanking — the preservation of the rail line for future use nor the ‘interim’ use of the easement as a recreation trail— constitutes a railroad purpose under Missouri law.”). Consequently, defendant’s argument that railbanking is both a railroad purpose and within the scope of the easements is not *418persuasive and should not be applied in a case interpreting the law of the State of Washington. In sum, the plain language of the Right of Way Deeds makes it clear that uses other than for railroad purposes, including as a recreational trail, exceed the scope of easements of the Right of Way Deeds under consideration in the Longnecker class action. The issuance of the NITU, which authorized the conversion of the railroad easements to trail use, therefore, denied plaintiffs their reversionary interests in the land.
The defendant makes two additional arguments to attempt to defeat liability in this case. The defendant argues that the plaintiffs cannot “argue that the STB’s issuance of the NITU exceeded the scope of the easements,” because “the NITU did not mandate interim trail use” and “subsequent actions by third parties were required to initiate interim trail use.” In the context of cases regarding claim accrual to determine when all elements of a claim have been perfected and the statute of limitations begins to run, the United States Court of Appeals for the Federal Circuit has repeatedly recognized that the issuance of the NITU is the government action which triggers the taking, if trail use is outside the scope of the easement. See Ladd v. United States, 630 F.3d at 1023 (“A taking occurs when state law reversionary property interests are blocked. The NITU is the government action that prevents the landowners from possession of their property unencumbered by the easement.” (citation and footnote omitted)); Caldwell v. United States, 391 F.3d at 1235 (“We therefore hold that the appropriate triggering event for any takings claim under the Trails Act occurs when the NITU is issued.”).
In addition, relying on Navajo Nation v. United States, 631 F.3d 1268 (Fed.Cir.2011), the defendant asserts that because the “STB did not require any parties to enter into an interim trail use agreement.... The United States therefore should not be held liable for a taking, because third parties chose to enter into an agreement for interim trail use.” As described above, the issuance of the NITU by the STB is the government action which effects the taking, and, moreover, the Federal Circuit has rejected defendant’s argument in two previous cases. In Preseault II, the United States argued that “since it was the City that actually established the trail, the United States should not be considered the responsible actor.” Preseault II, 100 F.3d at 1551. Referring to the federal control over the regulation of rail lines and abandonment, the Federal Circuit held “when the Federal Government puts into play a series of events which result in a taking of private property, the fact that the Government acts through a state agent does not absolve it from the responsibility, and the consequences, of its actions.” Id. The same argument was made again by defendant before the Federal Circuit in Toews v. United States, 376 F.3d at 1381:
[T]he Government argued in addition that, whatever the scope of the easements, if it was exceeded by the way in which the new use as a recreational trail was implemented, that was a consequence of what the City of Clovis did, since Clovis actually established the trail, and thus it was not the responsibility of the United States.
Id. The Toews court characterized this as a “meritless argument,” noting that it had been rejected before, quoting the Preseault II passage quoted above. See Toews v. United States, 376 F.3d at 1381. Nothing in Navajo Nation defeats this precedent. In Navajo Nation, the plaintiff asserted that a federal statute requiring consent from both the Navajo and the Hopi for development within certain designated portions of a Reservation resulted in a taking of the property of the Navajo Nation. See Navajo Nation v. United States, 631 F.3d at 1269, 1271. The Federal Circuit held that the Navajo Nation’s claim was time-barred because it was filed more than six years after the congressional enactment of a 1980 Amendment that codified the mutual consent requirement. See id. at 1274. The 1980 Amendment, rather than the Hopi Tribe’s decision “to impose a moratorium on approval of Navajo construction projects,” was the governmental exercise which constituted the action upon which a takings claim could be premised. Id. Moreover, Navajo Nation is not a rails-to-trails case and Navajo Nation, which cites with approval Ladd v. United States and Caldwell *419v. United States, does not undermine the established principle that if a taking occurs in a rails to trails context, it occurs upon the issuance of the NITU by the STB rather than the establishment of a trail. See Navajo Nation v. United States, 631 F.3d at 1275.
Abandonment
Finally, the defendant argues that “plaintiffs cannot demonstrate that the railroad abandoned those easements in the railroad corridor.” Defendant alleges that abandonment might be the dispositive issue, and argues that the railroad “retained a present property interest in the easements when it reserved to itself in each quit-claim deed to the Cities, ‘the right to reactivate and restore rail service on the Property.’” Although noting that abandonment could provide plaintiffs with a basis for a taking, plaintiffs indicate that the scope of the easement is the dispositive issue, and that “the issue of abandonment need only be reached if the scope of the easement issue is decided in favor of the government.” As determined above, the court has found in favor of the plaintiffs that the issuance of the NITU authorizing a recreational trail exceeded the scope of the easements for the Right of Way Deeds. Courts in this Circuit have indicated that if the scope issue is decided in favor of plaintiffs, it could be determinative regarding the issue of abandonment. See Toews v. United States, 376 F.3d at 1376 (court declined to decide the issue of abandonment because the “defining issue in this case is the question of the scope of the easements originally granted to the railroad”); see also Preseault II, 100 F.3d at 1549 (“[W]e find the question of abandonment is not the defining issue, since whether abandoned or not the Government’s use of the property for a public trail constitutes a new, unauthorized, use.”); Jenkins v. United States, 102 Fed.Cl. at 614-15 (“[T]he government’s narrow interpretation of the Trails Act divorces the language of the Act from its history, purpose, and regulatory scheme. The Trails Act scheme does not, as the government contends, authorize only that the railway right-of-way will not be deemed abandoned for railroad purposes if the corridor is railbanked.”); Ybanez v. United States, 102 Fed.Cl. 82, 87 (2011) (citing Pre-seault II, 100 F.3d at 1533 and Toews v. United States, 376 F.3d at 1381) (“Where the scope of a new easement exceeds the original grant, a determination of whether abandonment occurs is unnecessary.”); Whispell Foreign Cars, Inc. v. United States, 100 Fed.Cl. 529, 541 (2011) (footnote omitted) (“Because the court has determined that recreational trail use is not within the scope of the easement, the court need not determine at this time whether the easement was abandoned under Florida law.”); Ellamae Phillips Co. v. United States, 99 Fed.Cl. 483, 487 (2011) (interpreting the General Railroad Right of Way Act of 1875, a Judge of the Court of Federal Claims, noted: “Defendant raises several arguments concerning abandonment. Since we have determined that trail use exceeds the scope of the easement, we have no need to address the contingent issue of abandonment.”); Rogers v. United States, 90 Fed.Cl. at 432 (“Because it is clear that the Honoré easement did not encompass recreational trails, this Court need not reach the third prong of the Preseault II analysis — i.e., whether, even if the grants of the railroad’s easements were broad enough to encompass recreational trails, these easements had terminated prior to the alleged taking.”).
Despite the indications by courts in this Circuit that this court might not need to reach the issue of abandonment, the court notes that abandonment is a question of fact and has not been fully briefed in the filings submitted to the court to date. See Preseault II, 100 F.3d at 1546 (quoting Lague, Inc. v. Royea, 152 Vt. 499, 503, 568 A.2d 357 (1989)) (applying Vermont law and holding “[u]nder Vermont law, ‘the question whether there has been an abandonment ... is one of fact.’ ”) (omission in original); see also Carolina Plating Works, Inc. v. United States, 102 Fed.Cl. 555, 560 (2011) (quoting Preseault II, 100 F.3d at 1546) (“In Preseault II, the Federal Circuit held that whether an abandonment has occurred is a question of ‘fact, and the fact that question relates to a right of way taken by a railroad company does not make it one of law.’ ”). Under State of Washington law, abandonment is a question of fact. See Mouat v. Seattle, Lake Shore & Eastern Ry. Co., 16 Wash. 84, 47 P. 233, 234 (1896) (“It must follow that what would constitute an abandonment of the *420property for railroad purposes, within the meaning of the condition in the deed, would be a question of fact, as to which different minds might honestly come to different conclusions.”); see also Heg v. Alldredge, 157 Wash.2d 154, 137 P.3d 9, 13 (2006) (quoting Neitzel v. Spokane Int’l Ry. Co., 80 Wash. 30, 141 P. 186, 190 (1914)) (noting that ‘“the lapse of time does not, of itself, constitute an abandonment, but is a circumstance for the jury to consider in arriving at the intention of the [owner of the dominant estate].’ ”) (brackets in original). If abandonment is raised in future proceedings, the parties will have the opportunity to brief whether or not the finding by this court that the scope of the easements were exceeded precludes the necessity of determining whether or not the easement was abandoned.
CONCLUSION
For the reasons discussed above, the court finds that the scope of the easements granted by the Patton Deed, Ellis Deed, Fleet-wood Deed, Row Deed, Carpenter Deed, Adams Deed, and Chambers Deed were exceeded by the issuance of the NITU authorizing a recreational trail and that defendant’s railbanking argument is rejected. The court DENIES the defendant’s motion for partial summary judgment and GRANTS the plaintiffs’ motion for partial summary judgment. Future proceedings will be scheduled by separate Order.
IT IS SO ORDERED.
. Additional conveyances in this case are not at issue in the pending cross-motions for partial summary judgment, and, therefore, are not addressed in this opinion. These include an ordinance issued by the City of Olympia conveying an easement or license to the NPR to operate its railroad within its city, which the plaintiff concedes does not apply to any of the plaintiffs' parcels, and a deed whereby the NPR granted an easement to the TO & GHR. The parties "have agreed to defer resolution of the interest held by the railroad in the area of the line covered by the [NPR] to the [TO & GHR] deed, so that they can continue to investigate the issues involved and also attempt to resolve the issues without Court intervention.”
. The plaintiff whose property interest is associated with the Jane Adams and Mary and G.W. Carpenter Deed (the Adams/Carpenter Deed) was R.E. Carpet. As discussed below, in a March 2, 2012 Order, this court determined that the Adams/Carpenter Deed conveyed a fee interest for which the government was not liable for a taking and dismissed those claims dependant on the Adams/Carpenter Deed.
. The plaintiffs whose property interests are associated with the Charles and Gertrude Hoch-haus Deed (the Hochhaus Deed) were Chandler Investment II, LLC and Peter and Kathryn Fluetsch. As discussed below, in the March 2, 2012 Order, this court determined that the Hoch-haus Deed conveyed a fee interest for which the government was not liable for a taking and dismissed those claims dependant on the Hochhaus Deed.
. The plaintiffs whose property interests are associated with the William Stewart Deed (the Stewart Deed) were Kathleen and Dennis Boos, Peter and Kathryn Fluetsch, and St. Martin’s Abbey. As discussed below, in the March 2, 2012 Order, this court determined that the Stewart Deed conveyed a fee interest for which the government was not liable for a taking and dismissed those claims dependant on the Stewart Deed.
. The plaintiffs whose property interests are associated with the Allen and Ellen Weir Deed (the Weir Deed) were Kris and Lauri O'Bannon. As discussed below, in the March 2, 2012 Order, this court determined that the Weir Deed conveyed a fee interest for which the government was not liable for a taking and dismissed those claims dependant on the Weir Deed.
. The plaintiffs whose property interests are associated with the John M. and Sarah.E. Patton Deed (the Patton Deed) are Paul and Diana Bow-yer, Michael Lundsten, Larry and Soon Ja Spola-rich, and Woodland Creek Estate Homeowners' Association. Regarding all current Longnecker class action plaintiffs, including those mentioned in footnotes 6-13, the property interests are currently "based on the parties' best efforts ... subject to confirmation by a professional engineer or mapping service, or by stipulation of the parties....” At this time, the court does not *396make a final, legal judgment as to the validity of chain of title regarding any of the properties brought by the plaintiffs in the Longnecker class action included in footnotes 6-13.
. The plaintiffs whose property interests are associated with the J.C. and Eva Ellis Deed (the Ellis Deed) are Nathaniel and Thelma Jackson, Sprout Family Revocable Living Trust, and Western Washington Sheet Metal JATC.
. The plaintiffs whose property interests are associated with the David and Ella N. Fleetwood Deed (the Fleetwood Deed) are Nathaniel and Thelma Jackson and Sprout Family Revocable Living Trust.
. The plaintiffs whose property interests are associated with the Joseph and Almeda G. Rowe Deed (the Rowe Deed) are Kay Packaging Company, Stuart Sulman, James and Neil Keller, Vasick Real Estate LLC, and Western Washington Sheet Metal JATC.
. The plaintiffs whose property interests are associated with the George W. and Mary A. Carpenter Deed (the Carpenter Deed) are Jay and Barbara' Dayton, Herrick Higson II, Cheryel Jean Higson, Kevin Turner Investment Properties LLC, Money Saver Lacey Associates, LLC, Mueller/Doyle Lacey Venture, New Zion Baptist Church, and Villa Del Vista Condominium Association.
. The plaintiffs whose property interests are associated with the John M. and Jane Adams Deed (the Adams Deed) are Judith Crawford, Robert Helstrom, Newmarket I, R.E. Carpet, Restructuring Concrete, Inc., Ryder Family, LLC, Kenneth and Teresa Trapp, and Kevin Turner Investment Properties, LLC.
. The plaintiffs whose property interests are associated with the David and Elizabeth Chambers Deed (the Chambers Deed) are 2003 JLR Family LLC, Andbry Properties LLC, Capital Development Company, William and Marilyn Car-ruth, Elaine Hanson, Sang Ho and Mi Young Choi, Walter Cox, James Dyer, Josephine Evans, Happy Teriyaki III, Inc., John Hartung, Charles and Diane Kennedy, Aurelia Kennish, Joseph Kennish, individually, and on behalf of Richard Kennish, Frances Kennish Mackenzie, A. Mary Osborne, William Kennish, David Kennish, Peter Kennish, James Kennish, Anthony Kennish, through power of attorney, the Helen Marie Stubbings Trust, Kevin Turner Investment Properties, LLC, Nae To Ki, Sung Kim, Ivan Kralo-vensky, Lacey Town Square, LLC, Lion-El Properties, Inc., Macarios, Inc., Margent Corporation, Patrick and Sharon Martin, Meadow Green Park, LLC, Don Miles, by and through his personal representative, Jane Hanson, Gretchen Morris, Benjamin Morton, Olympia Lodge No. 1759 Loyal Order of Moose, Jim and Donna Palmer, Rick and Coleen Parnell, Robert and Shirley Pearsall, Richard and Kathy Peregrin, Kenneth and Robin Phillips, Prime Enterprises, LLC, R.I.C. 20 Ltd., by and through its general partner. Realty Income Corporation, Leo and Cecilia Roberts, individually, and as Trustees of Living Trust of Leo C. Roberts and Cecilia L. Roberts, Michael and Patricia Saylors, South Sound Villa, the Lee Revocable Trust, the Spratt Living Trust, Robert and Maty Ann Thompson, Mary Wightman, and Mark and Janelle Williams.
. The plaintiffs whose property interests are associated with the Herman J. and Emilie G. Frase Deed (the Frase Deed) are Capital Development Company, E. Paul and Phyllis DeTray, Longnecker Property, Kris and Lauri O’Bannon, and the Crown Beverage Packaging, Inc. Master Trust.
. In a footnote, the STB decision stated that: "Effective January 20, 2005, The Burlington Northern and Santa Fe Railway Company changed its name to BNSF Railway Company.” BNSF Railway Co.—Abandonment Exemption—in Thurston Cnty., WA, STB Docket No. AB-6 (Sub. No. 410X), 2005 WL 678995, at *1 n. 1.
. No plaintiffs were dismissed from the Long-neclcer class action based on the March 2, 2012 Order because each plaintiff who owns property governed by the fee deeds also has property governed by some other conveyance still at issue in the case.
. Preseault v. Interstate Commerce Commission, 494 U.S. 1, 110 S.Ct. 914, is a 1990 United States Supreme Court decision and is sometimes referred to as Preseault I. In Preseault I, the Supreme Court concluded that although the Trails Act represented a valid exercise of Congressional power under the Commerce Clause of the United States Constitution, when railroad rights of way are converted to interim public trail use under the Trails Act, the Trails Act taking of private property cannot occur without just compensation. See generally Preseault I, 494 U.S. 1, 110 S.Ct. 914. Subsequently, in 1996, the United States Court of Appeals for the Federal Circuit issued a decision also involving the Preseaults, Preseault v. United States, 100 F.3d 1525 (Fed. Cir.1996), sometimes referred to as Preseault II. As explained by the Federal Circuit, ”[t]he Pre-seaults own a fee simple interest in a tract of land near the shore of Lake Champlain in Burlington, Vermont, on which they have a home. This tract of land is made up of several previously separate properties, the identities of which date back to before the turn of the century. The dispute centers on three parcels within this tract, areas over which the original railroad right-of-way ran.” Id. at 1531. In Preseault II, the Federal Circuit concluded that "[w]hen state-defined property rights are destroyed by the Federal Government’s preemptive power in circumstances such as those here before us, the owner of those rights is due just compensation.” Preseault II, 100 F.3d at 1552.
. The Trails Act indicates that a trail provider may be "a State, political subdivision, or qualified private organization [that] is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way.” 16 U.S.C. § 1247(d).
. As noted above in the first footnote, one ordinance issued by the City of Olympia and one deed from the NPR to the TO & GHR were not stipulated to by the parties and are not the subject of this opinion.
. The Rowe Deed states "hereafter to the constructed," whereas the other Right of Way Deeds all state "hereafter to be constructed,” an apparent mistake in the Rowe Deed.
. As noted above, the only differences between the granting, habendum, and reverter clauses in the Right of Way Deeds occur in spelling and punctuation, except that the Fleetwood Deed does not state the width of the right of way and the Adams Deed grants "a right of way One hundred and fifty feet in width,” comprised of "a strip of land Fifty feet in width on such each side of the center line ... [and] also a strip fifty feet wide on the south side of and adjoining such strip already described.” Additionally, the Patton Deed contains an additional stipulation that the TO & GHR build a fence on both sides of the right of way to protect livestock, and the Ellis *407and Fleetwood Deeds state that the grant is for "One Dollar and other valuable considerations,” with neither provision included in the other Right of Way Deeds. None of these differences are material or prevent the court from analyzing the Right of Way Deeds together.
. The current version of the Corpus Juris Se-cundum on Easements quoted by the State of Washington Supreme Court is at section 64 of the Corpus Juris Secundum on Easements. See 28A C.J.S. § 64 (2012) ("Where the language is unambiguous, other matters may not be considered, as an easement specific in its terms is decisive of its limit. However, where the language is ambiguous the court may consider the situation of the property and of the parties, and the surrounding circumstances at the time the instrument was executed, and the practical construction of the instrument given by the parties by their conduct or admissions.”) (footnotes omitted).
. Plaintiffs also cite to King County v. Squire Investment Co., 59 Wash.App. 888, 801 P.2d 1022 (1990), review denied, 116 Wash.2d 1021, 811 P.2d 219 (1991) for support that a public recreational trail use is beyond the scope of the easements. The discussion regarding the scope of the easement in Squire Investment Co., however, is dicta and from the State of Washington Court of Appeals. In Squire Investment Co., the court determined that the deed at issue conveyed an easement to the railroad which terminated when the railroad abandoned the line with Interstate Commerce Commission approval. This precluded any need by the State of Washington Court of Appeals in Squire Investment Co. to address the scope of the easement. See id. at 1025 ("King County contends, however, that its use of the right-of-way as a recreational trail is within the scope of the interest conveyed to the railroad and, hence, it was not abandoned. The County’s argument is without merit. Burlington Northern formally abandoned the right-of-way on July 29, 1985 [the date the ICC issued a Certificate of Abandonment]. The easement was extinguished at that moment and its interest reverted to the Squires’ heirs. Burlington Northern had no interest to convey to King County for use as a railroad much less as a trail.”) (footnotes omitted).
. At the time of the Preseault II case, the Interstate Commerce Commission (ICC) was the government entity responsible for railroad regulation.
. Although the Lawson court used the term "abandonment," the court was referring to a previous paragraph in the Lawson decision in which the State of Washington Supreme Court described the two ways in which an easement could be extinguished: either abandonment, which the Washington Supreme Court termed "outright abandonment,” or exceeding the scope of the easement, which the same court termed "abandonment.” Lawson v. State, 730 P.2d at 1311-13. Regardless of the terminology used, the holding by the State of Washington Supreme Court rested on a finding that the scope of the easement had been exceeded. Id. at 1311-12 ("In addition to outright abandonment of a right of way, there may be a change in use of the right of way which is inconsistent with the purpose for which the right of way was granted .... clearly, a hiking and biking trail is not encompassed within a grant of an easement for railroad purposes only.").
. The Lawson plaintiffs filed suit challenging the constitutionality of two Washington statutes that "authorize^] a change in the use of a railroad right of way to a public nonrailroad use without compensation to holders of reversionary interests in the right of way.” Lawson v. State, 730 P.2d at 1309.
. After the adoption of Federal Circuit Rule 32.1, parties may cite nonprecedential disposi*414tions issued after January 1, 2007. See Fed. Cir. R. 32.1 (2011). The rule makes no provision regarding the citation of nonprecedential dispositions issued before that time. Chevy Chase Land Co. of Montgomery County v. United States was issued as an unpublished table decision in 1999. See Chevy Chase Land Co. of Montgomery Cnty. v. United States, 230 F.3d 1375, 1999 WL 1289099.
. Just as the Federal Circuit cited to Lawson in Preseault II, the Federal Circuit also cited to State by Washington Wildlife Preservation, Inc., noting that the decision was one of the few to hold that the conversion to a recreational trail falls within the scope of an original railroad easement. See Preseault II, 100 F.3d at 1544. The Federal Circuit indicated that:
The [State by Washington Wildlife Preservation, Inc.] court with little analysis declared that use of such a right-of-way for a recreational trail is consistent with the purpose for which the easements were originally acquired, public travel, and that such use imposes no additional burden on the servient estates. The court specifically pointed out that "[wjhile the grantors were undoubtedly aware that a railroad would be constructed on the land, none of the deeds limit the use to railroad purposes.” [State by Wash. Wildlife Pres., Inc. v. State, 329 N.W.2d] *415at 546. Furthermore, said the court, even though abandoned for railroad purposes, the easements were not abandoned for public travel purposes, including travel by hikers, bikers, cross-country skiers, and horseback riders.
Preseault II, 100 F.3d at 1544.
. Defendant argues that "neither Nordhus nor Capreal has any relevance to the legal issues in dispute before this Court.” The defendant is correct that neither Nordhus Family Trust v. United States, 98 Fed.Cl. 331, nor Capreal, Inc. v. United States, 99 Fed.Cl. 133, applied Washington law, however, both suggest that Troha also remains an outlier compared to other rails to trails decisions. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218279/ | OPINION AND ORDER
SMITH, Judge.
Plaintiffs bring this breach of contract case to recover refunds from overcharges of electricity prices during the Energy Crisis of 2000-2001 in the state of California. In this liability phase, the Court held a four week trial in San Francisco, CA. After consideration of all the evidence, briefs and arguments, the Court finds that the United States breached its contract with the Plaintiffs.
INTRODUCTION
During the summer of 2000 through 2001, California experienced a power crisis which dramatically affected the price of electricity. During that time, the electricity used in the California market was sold in two new centralized auction electricity markets, one run by the California Independent System Operation Corporation (“ISO”) and one run by a centralized market called the California Power Exchange (PX). In both of these markets, participants signed contracts binding themselves to the terms of tariffs that governed the operations of the markets. Plaintiffs now bring these suits based upon these contracts and tariffs and seek refunds of the overcharges on electric power the Agencies sold between May 1, 2000 and June 20, 2001 in wholesale markets operated by the PX and ISO. Specifically, in their complaint, Plaintiffs allege two breach of contract claims. First, Plaintiffs allege breach by anticipatory repudiation. Second, Plaintiffs allege a present breach, as well as declaratory relief claims.
The Court held trial in San Francisco, CA The record in this ease, including all the briefing, the trial testimony, and the exhibits is extensive. Much of the evidence at trial was to provide the Court with an explanation of the market structure and the economics that gave rise to Plaintiffs’ claims. However, Plaintiffs assert that most of the evidence is not necessary to decide the issues before the Court.
Despite the daunting complexity of the tariffs, at least to one not schooled in utility economics, of the transaction at issue, and of the variety of litigation related to the power crisis, Defendant also asserts that these cases are quite simple. Defendant argues that the agencies have no obligation to pay the Plaintiffs anything. Instead, Defendant argues that the contracts signed by the agen-*424eies were with the ISO and the PX, not with the Plaintiffs. Further, Defendant argues that by Plaintiffs’ own admission, no obligations have arisen under the contracts.
Even though both parties claim that these cases are quite simple, however, in order to fully understand this case, the Court must delve into the novel utility markets created by the State of California, as well as the economy of the time. The Court will, therefore, begin its opinion with the parties in this litigation, the history of the electricity market, and then the tariffs. The Court will thereafter move into the FERC and Ninth Circuit litigation and, thereafter, the issues before the Court.
BACKGROUND AND FINDINGS OF FACT
A. The Parties
1. The Plaintiffs
Plaintiffs Pacific Gas and Electric (“PG & E”), Southern California Edison Company (“SCE”) and San Diego Gas & Electric (“SDG & E”) are investor owned utilities (IOUs) engaged in the purchase, transmission, distribution, and sale of electric energy within California. The IOUs provide electric power to the vast majority of California’s businesses and residences, and together serve about 70 percent of all electric customers in the State.
PG & E is one of the nation’s largest IOUs, providing electricity to approximately 15 million people in northern and central California. SCE serves approximately 15 million people in 15 Southern California counties. SDG & E services approximately 14 million people in both San Diego County and southern Orange County.
Plaintiffs the People are represented by the California Attorney General’s Office on behalf of the ratepayers of the State and the California Energy Resources Scheduling Division (“CERS”). CERS is a state governmental entity created in January 2001 to serve as the power buyer of last resort for the State’s electricity customers. CERS is a division within California’s Department of Water Resources (“DWR”).
2. The Agencies
The United States is defending Plaintiffs’ claims on behalf of Bonneville Power Administration (“BPA”) and Western Area Power Administration (“WAPA”), which are federal agencies responsible for marketing hydroelectric power generated by certain federal and non-federal facilities. BPA markets more than 20,000 megawatts of power per year generated by a nuclear power plant and 31 federal hydro projects that constitute the federal Columbia River power system in the Pacific Northwest. WAPA markets and transmits about 10,000 megawatts of power per year from some 55 hydro power plants to a 15-state region in the central and western United States, selling about 40 percent of all the hydroelectric power generated in that region.
B. Acquisition of Power from the Agencies Prior to 1998
Prior to 1998, the IOUs were vertically integrated. Specifically, the IOUs owned and operated their own generation, transmission, and distribution systems. The power rates which the IOUs could charge were regulated by the California Public Utilities Commission (“CPUC”). For the wholesale power bought and sold by the IOUs on the Western transmission grid, FERC regulated such activities. See CPUC v. FERC, 462 F.3d 1027 (9th Cir.2006).
During this time, the IOUs generated through their own facilities the power needed to serve their customers. To meet their demand, if necessary, the IOUs would purchase electricity from other suppliers. In order to effectuate the sale, the IOUs and out-of-state suppliers would enter into bilateral contracts. The IOUs had such agreements with BPA and WAPA, and some IOUs continue to do so today. The bilateral contracts negotiated price and volume, the specific source from which the power would be delivered to the transmission grid, and defined the transmission path through which the power would be distributed. In order to determine how much was owed, the parties used a settlement process basing the amount owed on metering data showing how much *425power was actually generated, transmitted, and received.
C. Acquisition of Power from the Agencies After 1998
In 1996, California enacted Assembly bill 1890 (“AB 1890”), which restructured California’s electric power markets. This bill created two new wholesale electricity markets: the PX and the ISO. Both the PX and ISO are non-profit, public benefit corporations organized under California law and they are FERC jurisdictional public utilities which commenced operations in 1998.
Under AB 1890, the IOUs were required to “unbundle” their functions by separating their generation, transmission, and distribution functions. The IOUs had to divest substantial amounts of their power generation facilities and to transfer control of their transmission systems to the ISO. In addition, the IOUs were not permitted to use them remaining generating capacity to serve their customers, but instead were required to sell all of the power they generated, and buy substantially all of the power they needed through the PX and ISO. This buy-sell requirement applied only to the three IOUs in this case.
1. The PX
The PX was deemed a public utility pursuant to the Federal Power Act (FPA) and, as such, its operations and transactions were governed by a tariff approved by FERC. The PX was a nonprofit corporation that provided a centralized clearinghouse, similar to a stock exchange, which facilitated electricity transactions between sellers and buyers. The trading parties were called “market participants” and, therefore, the IOUs, CERS, and the Agencies all were considered Market Participants who bought and sold power in the PX.
Pursuant to its FERC-regulated Tariff, the PX operated daily auctions in which buyers purchased power for the following day, as well as houi’ly auctions that allowed buyers to make any necessary adjustments to purchases. As with any trading exchange, sellers submitted offers (“bids”) to sell power in each auction and buyers submitted demand bids for the amount of electricity they wanted to buy. For each auction, the PX ranked the sellers offers to buy from low to high with a resulting supply curve. Price was mapped vertically and quantity horizontally, and the chart would depict the supply curve slopped upward because as the price increased, sellers were willing to sell more. On the other hand, the buyers’ offers formed the “demand curve” which sloped downward because as the price increased, purchasers were willing to purchase less. Like all supply and demand curves, the point where the lines intersected represented the quantity sold in that auction and the “market clearing price” (“MCP”) for that power.
The PX and ISO Tariffs provided the formula for the price; thus, the price of the last accepted seller’s bid (the highest price) set the MCP for all of the power sold in that auction. PX Tariff § 3.8, Pis. Exh. 57 at 910; id., Schedule 3, Pis. Exh. 57 at 958; id., Appendix B, Master Definitions Supplement, Pis. Exh. 57 at 1061. After the MCP was set, the PX informed the participants whose bid had been accepted, and the winning buyer and sellers would submit a “schedule” to the PX in which the sellers provided the location where the power would be delivered and the buyers identified the location where the power would be received.
2. The ISO
Unlike the PX, the ISO acted as the buyers’ agent for all buyers in the market. ISO Tariff § 2.2.1. The role of the ISO was to maintain a stable power supply and adequate reserves as well as ensuring nondiseriminato-ry access to power. After the restructuring, the IOUs continued to own and maintain their transmission lines, but the ISO controlled access to and transmission over these lines, including minute-by-minute balancing of power supply and demand. The ISO, therefore, operated the electricity grid, and directed the necessary power to the loads of the IOUs. The parties who' participated in the buying and selling of power in the ISO markets were called “Scheduling Coordinators.” Hence, the IOUs, CERS, and the Agencies all were ISO Scheduling Coordinators. Additionally, by statute, the PX also *426was authorized to act as a Scheduling Coordinator for the PX market participants.
After the PX held the auctions, the ISO then accepted the schedules for power supply and usage. The ISO also procured additional electric power to make up the difference between the amount sold in the PX and the amount the ISO determined would actually be necessary to meet the demand. To accomplish this, the ISO set a single market clearing price for each interval and then the MCP was paid to every seller whose bid was accepted, even if that seller’s bid was below the MCP. The cost of the additional supply was paid by the IOUs and other entities that used power from the system during that time interval, in proportion to its usage.
At times, the ISO had to obtain power outside the auction process to maintain the reliability of California’s electric grid. This outside power was known as “out-of-market” or “OOM” power. The Tariff allowed for these types of transactions, see ISO Tariff § 2.3.5.1.5, and when the ISO acquired the power in this way, the costs were passed on to the market participants that used it. Dining the crisis, both WAPA and BPA made OOM sales to the ISO by way of “energy exchanges” in which the Agencies delivered energy in exchange for the ISO’s agreement that they would be paid “in kind” rather than in cash by a subsequent return of an agreed amount of energy to the Agencies.
D. The Contracts
In order for the Agencies to have access to the PX and ISO markets, the Agencies were required to sign written contracts that incorporated the entire Tariffs, as well as agreeing to abide by the Tariffs’ terms and subsequent changes to those Tariffs. PX participants were required to sign a PX Participation Agreement (“PX Agreement”). PX Tariff § 2.6.2(f), P.Ex. 57 at 903. In the ISO, the Scheduling Coordinators were also required to sign a Scheduling Coordinator Agreement (“SC Agreement”). ISO Tariff § 2.2.3.1., Pis. Exh. 66 at 31. The PX and ISO Tariffs were incorporated by reference, in their entirety, into the PX and SC Agreements. PX Tariff, Appendix A, PX Agreement §§ II, 8, Pis. Exh. 57 at 1056, 1058; ISO Tariff, Appendix B, SC Agreement §§ 2, 8, Pis. Exh. 66 at 388, 390. As the Tariffs were incorporated in their entirety, the Participants were obligated to abide by not only the PX and ISO Agreements, but were obligated to abide by the Tariffs as well.
Specifically, the PX Agreements stated that the Agencies would “abide by and will perform all of the obligations under the PX Tariff in respect to all matters set forth therein including, without limitation all matters relating to the trading of Energy by [them] through the PX Markets ... [and] billing payments.” PX Tariff, Appendix A, Participation Agreement § 11(B), Pis. Exh. 57 at 1056. With regard to the SC Agreements, those agreements specifically stated that the Agencies would “abide by, and will perform all of the obligations under the ISO Tariff placed on Scheduling Coordinators in respect of all matters set forth therein including, without limitation, all matters relating to the scheduling of Energy and Ancillary Services on the ISO Controlled Grid, ... [and] billing and payments....” ISO Tariff, Appendix B, SC Agreement § 2(b), Pis. Exh. at 388.
FERC LITIGATION
A. The FPA and FERC Jurisdiction
The Federal Power Act (“FPA”) gives FERC exclusive jurisdiction over all wholesale power transactions by “public utilities.” The term only applies to private market participants such as the IOUs, the PX, and the ISO, but not governmental entities such as the Agencies. FPA § 201(b), (e), 16 U.S.C. § 824(b), (e) (2000). See generally N.Y. v. FERC, 535 U.S. 1, 122 S.Ct. 1012, 152 L.Ed.2d 47 (2002). Although governmental entities such as the Agencies are not “public utilities” under the FPA, (FPA § 201(f), 16 U.S.C. § 824(f) (2000)), they may contract to abide by FERC-regulated rates. See Bonneville, 422 F.3d at 925-26. The rates, terms, and conditions for all wholesale sales of power must be filed with and approved by FERC. FPA § 205(a), 16 U.S.C. § 824d(a) (2000). FERC’s regulatory authority extends not only to particular prices, but also *427to rate formulas, practices, and other terms and conditions of service. See Pub. Utils. Comm’n of the State of Cal. v. FERC, 254 F.3d 250, 254 (D.C.Cir.2001).
Interested parties, and FERC itself, may initiate complaint proceedings to challenge electric rates under FPA Section 206, 16 U.S.C. § 824e (2000). When a party files a challenge under FPA Section 206, FERC must investigate whether the rates being charged under the tariff are unjust, unreasonable, or otherwise unlawful. Id. § 824e(a). If the rates are not just and reasonable, FERC must determine the just and reasonable rate, id., and has authority to order refunds for transactions occurring after a FERC-specified “refund effective date.” The “refund effective date” established by FERC must be at least sixty days after the filing of the complaint. FPA § 206(b), 16 U.S.C. § 824e(b) (2000). Pursuant to Section 309 of the FPA, FERC may also order refunds for the period prior to the refund effective date if it finds that there has been a tariff violation. Id. § 825h (2009); CPUC v. FERC, 462 F.3d at 1045.
B. The PX and ISO Tariffs and FERC
As already noted, the PX and ISO were “public utilities” under the FPA, therefore, all sales and purchases of power in those markets were governed by FERC-regulated tariffs. See FPA § 201(b), (d), (e), 16 U.S.C. § 824(b), (d), (e) (2000). Automated Power Exch. v. FERC, 204 F.3d 1144 (D.C.Cir.2000) (upholding FERC jurisdiction over power exchanges that facilitate power trading in California). The Tariffs, which were filed with FERC, specified the rules to abide by in order to participate in these markets, including when and in what form participants would submit bids to buy and sell power, and the formulas used to establish prices for all purchase-sale transactions. The Tariffs also prescribed the financial settlements resulting from market transactions. They also allocated risks as between the markets and the market participants. FERC could alter or amend the Tariffs, including their pricing formulas, and to review and correct the market-clearing prices. See San Diego Gas & Elec. Co., 127 FERC ¶ 61,191, at P 31 (2009) (“May 29, 2009 Order”); CPUC v. FERC, 462 F.3d at 1043-44. Both Tariffs authorized market participants to seek FERC’s review and correction of prices set under the Tariff formulas. PX Tariff § 13, Pis. Exh. 57 at 918-19 (preserving PX participants’ rights to seek FERC review of prices under FPA Section 206); ISO Tariff § 19, Pis. Exh. 66 at 316-17. Thus, it is uncontested that when the Agencies signed the PX and SC Agreements, they agreed to accept the prices, terms, and conditions established by the PX and ISO Tariffs, as determined and modified from time to time by FERC.
C. FERC Determined that PX and ISO Sellers’ Prices Were Unjust and Unreasonable
SDG & E filed a complaint with FERC on August 2, 2000 against all sellers of electricity into the PX and ISO markets, alleging that the California wholesale power markets were not competitive, and that FERC should grant relief consistent with its statutory charge to assure that wholesale rates are just and reasonable.1 PG & E, SCE, and the People all intervened in that proceeding, asking FERC to investigate the markets, place caps on prices, and to change the markets’ rales if FERC found the rales were not working as intended and were contributing to the market dysfunction, as well as order refunds.
Thereafter, on August 23, 2000, FERC opened an investigation into whether sellers’ rates were just and reasonable. San Diego Gas & Elec. Co., 92 FERC ¶ 61,172, at 61,-603, 61,609 (2000) (“August 23, 2000 Order”) (“Remedy Proceeding”). The Agencies were respondents to the initial SDG & E complaint, and they also formally intervened as parties and gained full participatory rights in the Remedy Proceeding. Pis. Exh. 67, 69.
In the August 23, 2000 Order, FERC established a “refund effective date” to begin October 2000 and end June 20, 2001 (“refund period”) putting sellers on notice that any sales they made between these dates might be subject to refund if FERC concluded, *428following investigation, that prices must be corrected. August 23, 2000 Order, 92 FERC at 61,609; see also San Diego Gas & Elec. Co., 93 FERC ¶ 61,121, at 61,370 (2000) (“November 1, 2000 Order”); CPUC v. FERC, 462 F.3d at 1046-47. Additionally, FERC announced that its investigation would consider modification of the PX and ISO Tariffs and related agreements. August 23, 2000 Order, 92 FERC, at 61,606; PX Tariff § 13, Pis. Exh. 57 at 918-19; ISO Tariff § 19, Pis. Exh. 66 at 316-17. FERC has been granted this authority and it is undisputed, as WAPA’s own witness Mr. Sanderson conceded that FERC has power to amend the PX and ISO Tariffs, including revising the prices set under the Tariffs, and that the Agencies are bound to follow the Tariffs as amended by FERC.
In its November Order, FERC acknowledged that serious flaws in the market structure and rules, along with an artificially created imbalance of supply and demand, were causing unjust and unreasonable electricity rates. November 1, 2000 Order, 93 FERC ¶ 61,121, at 61,349-50. See also CPUC v. FERC, 462 F.3d at 1039-40 (discussing the potential for manipulation by sellers under the market rules and Enron fraudulent strategies).
In the case at bar, during trial, Plaintiffs put forth evidence that showed that during the Energy Crisis, the Agencies sought to “cash in” on the market dysfunction and stratospheric prices. For instance, the evidence showed that BPA gave instructions to its traders dealing with the PX and ISO through documents called “Operations Memos” or “UFNs” (“Until Further Notice”) and that BPA’s September 15, 2000 UFN stated that the ISO expected Stage 2 and possibly Stage 3 emergencies, and went on to say: “[T]he [ISO] called this morning to warn us of their expected heavy loads early next week.... Our ability to aid (cash in) in there [sic] anticipated crisis would be limited by transmission space.” Pis. Exh. 65 at 119675 (emphasis added); Trial Tr. 2101:5-13 (Oliver). The evidence is clear that the Agencies’ traders recognized that the Energy Crisis provided the Agencies an opportunity to reap windfall profits. As BPA explained in another UFN, “[s]elling at such times is an ancient but still true marketing strategy derived from Neanderthal hunting philosophy translated from cave paintings: ‘wait till they fall in the tar pit then whomp 'em.’ ” BPA June 22, 2000 Operations Memo, Pis. Exh. 54 at 119648 (emphasis added); see Trial Tr. 2103:10-2104:5 (Oliver).
D. FERC Corrected Prices Charged in the PX and ISO Markets During the Refund Period
FERC eventually altered the pricing formulas in the PX and ISO Tariffs and corrected prices set under those formulas for sales in the PX and ISO markets. Specifically, in its July 25, 2001 Order, FERC corrected the prices for the PX and ISO auction and OOM sales during the refund period. San Diego Gas & Elec. Co., 96 FERC ¶ 61,120 (2001) (“July 25, 2001 Order”). FERC adopted a methodology to recalculate, on a market-wide basis, the maximum prices that would have existed in the PX and ISO markets if sellers had charged just and reasonable rates. Id. at 61,516-19. The corrected, maximum rates were called the “Mitigated Market Clearing Price,” or “MMCP.” FERC rejected requests by various market participants to set different MMCPs for different classes of sellers, and crafted the MMCP as a single, market-wide remedy. See, e.g., December 19, 2001 Order, 97 FERC ¶ 61,275, at 62,218. FERC’s price correction included an interest' component to compensate market participants who had originally overpaid for their power purchases, as authorized by the Tariffs. PX Tariff § 15.6, Pis. Exh. 57 at 922; ISO Tariff § 12.6, Pis. Exh. 66 at 298; see also July 25, 2001 Order, 96 FERC ¶ 61,120, at 61,519; 18 C.F.R. § 35.19(a)(2).
On appeal from FERC’s July 25, 2001 Order and related orders, the Ninth Circuit affirmed FERC’s authority to correct the market clearing price that all sellers, including the Agencies, agreed to accept for their sales during the Refund Period, including OOM sales. CPUC v. FERC, 462 F.3d at 1051-53. The court held that FERC’s price corrections were not impermissibly “retroactive;” in fact, FERC complied with the rule against retroactive ratemaking by limiting its *429remedies to the period following the refund effective date. Id. at 1063.
E. The PX and ISO Recalculated Prices and Published Settlement Statements
The PX and ISO were responsible for tracking how much power each market participant bought and sold and the price associated with each transaction in those markets. PX Tariff §§ 3.1, 6.2, Pis. Exh. 57 at 904-905; ISO Tariff §§ 11.1, 11.2, Pis. Exh. 66 at 274-75. For each “Settlement Period,” the PX and ISO calculated each PX Participant’s and Scheduling Coordinator’s respective purchases and sales, netted out the credits and debits attributable to each buyer and seller, and prepared and distributed “settlement statements” reflecting the amounts payable and receivable by market participants in connection with their transactions. PX PSABP § 5.4, Pis. Exh. 188 at 1743-44; ISO Tariff § 11.9, Pis. Exh. 66 at 289.
FERC directed the PX and ISO to apply the MMCP to sales for each auction interval during the refund period in order to recalculate the corrected prices that all sellers should have charged and to re-run their settlement and billing processes under their respective Tariffs. July 25, 2001 Order, 96 FERC ¶ 61,120, at 61,513, 61,516-20. The PX and the ISO complied with the directive and recalculated the accounts of all sellers and buyers in their markets to reflect the corrected prices for the Refund Period. BPA never raised any objection to those.
In order to apply the MMCP, the ISO needed factual data related to the sellers’ actual generation costs. Evidentiary hearings were held to establish the facts needed to calculate the MMCP and resulting refunds, July 25, 2001 Order, 96 FERC ¶ 61,-120, at 61,519-20, and thereafter proposed findings were issued on December 12, 2002. On March 26, 2003, FERC issued an order largely adopting the proposed factual findings regarding the various market transactions and related costs. San Diego Gas & Elec. Co., 102 FERC ¶ 61,317 (2003).
The PX and ISO then applied the MMCP to the Agencies’ sales data to calculate the Agencies’ refund obligations — the amounts the Agencies charged for each of their sales transactions during the Refund Period in excess of the MMCP — including the interest component authorized by the Tariffs. In 2004-2005 the PX and ISO furnished those calculations to the Agencies in the form of revised settlement statements known as “refund rerun settlement statements.” See Forty-Fifth Status Report of the California Independent System Operator Corporation on Settlement Re-Run Activity (Jul 16, 2010) (“ISO 45th Status Report”), Pis. Exh. 254 at 1969, 1982.
The PX furnished PX market participants with preliminary refund rerun settlement statements on February 8, 2005. See PX’s February 9, 2005 market notice, Pis. Exh. 127 (“[yjesterday, February 8, 2005, all CalPX settlement statements in the FERC [Remedy Proceeding] were published”); Trial Tr. 1033:23-1034:3 (Conn) (explaining that PX’s February 9, 2005 market notice notified market participants that “the refund calculations were complete and that the settlement statements were available for review”). Final refund rerun settlement statements were published on May 17, 2005. See PX’s May 17, 2005 market notice, Pis. Exh. 132; Trial Tr. 1041:22-1042:13 (Conn) (explaining that PX’s May 17, 2005 market notice notified market participants that PX had published final refund rerun settlement statements).
Following the PX action, the ISO furnished Scheduling Coordinators with refund rerun settlement statements covering the Refund Period on a rolling basis between October 25, 2004 and February 17, 2006. For a seller, these settlement statements showed the amount of the seller’s refund obligation.
The evidence is undisputed that the refund calculations are complete, and there are no outstanding or unresolved disputes concerning BPA or WAP A. See Forty-Third Status Report of the California Independent System Operator Corporation on Settlement Re-Run Activity (May 8, 2009) (“ISO 43rd Status Report”), Pis. Exh. 178 at Attachment A; ISO 45th Status Report, Pis. Exh. 254 at 1968. At trial, Dr. Conn explained that the PX’s remaining adjustments to the refund calculations are items that will be allocated to *430buyers, not sellers like BPA and WAP A. Mr. Bouillon of the ISO confirmed that ongoing adjustments to refund obligations for fuel costs and emissions do not apply to the Agencies as sellers. Although BPA’s Stephen Oliver initially claimed that the calculation of refunds remained incomplete because adjustments were being made to the refund figures, he later admitted that none of the adjustments had any bearing on BPA’s refund obligations.
F. Current FERC Litigation
The Agencies also made sales for which FERC is in the process of determining corrected prices pursuant to the Ninth Circuit’s decision. See infra pp. 430-31. FERC has already corrected prices for many of the transactions, however, it had concluded that it lacked authority to order refunds for the Summer Period (May 1, 2000 to October 1, 2000), and thus denied relief for that period. CPUC v. FERC, 462 F.3d at 1045-1048. FERC also refused to correct the rates for Refund Period energy exchanges and multi-day sales (sales of power for periods longer than 24 hours), which are collectively referred to as the “Excluded Transactions.” Id. at 1055, 1059.
The Ninth Circuit reversed FERC’s orders refusing to grant such relief. Id. at 1065. The court held that FERC failed to provide any valid reason for its refusal to apply its MCP methodology to the Excluded Transactions, id. at 1057-58 (multi-day transactions), 1059-61 (energy exchanges), and granted Plaintiffs’ petitions “challenging FERC’s exclusion of such transactions.” Id. at 1065. Similarly, as to Summer Period transactions, the court held that FERC provided insufficient justification for its refusal to consider a market-wide remedy. Id. Noting that Plaintiffs provided “significant evidence of pervasive tariff violations,” id. at 1049, the court held that “FERC’s categorical rejection of the California Parties’ request for ... relief was arbitrary, capricious, and an abuse of discretion.” Id. at 1051. This matter is still moving forward on remand.
G. Ninth Circuit Litigation
FERC’s July 25, 2001 Order contained two distinct rulings relating to the Agencies’ refund obligations. First, FERC adopted the MMCP, altering the Tariffs’ pricing formulas, to correct the prices that all sellers— public utilities and governmental agencies alike — agreed to accept for their sales during the refund period. That action was upheld by the Ninth Circuit. CPUC v. FERC, 462 F.3d at 1043-44. In its second ruling, FERC held that its power to enforce sellers’ payment of their refund obligations under the FPA extended to governmental entities such as the Agencies. This was reversed on appeal holding that FERC lacked statutory authority to enforce governmental entities’ refund obligations. Bonneville Power Admin. v. F.E.R.C., 422 F.3d 908, 911 (9th Cir.2005). The effect of that holding was that, after Bonneville, Plaintiffs’ refund claims against the Agencies were no longer being determined within the Remedy Proceeding but would be decided by the Court. At the same time, FERC retained jurisdiction over the Agencies’ claims against the IOUs for the amounts the IOUs still owe for their purchases of the Agencies’ power, and for refunds owed by the IOUs or other sellers for overcharges on any purchases by the Agencies. October 19, 2007 Order, 121 FERC ¶ 61,067, at PP 42, 57.
The Ninth Circuit suggested in Bonneville that although FERC could not enforce governmental sellers’ refund obligations, market participants could obtain “the equivalent refund relief’ by bringing claims in court directly against the Agencies to enforce the contractual obligations created by the Tariffs and related agreements. Bonneville, 422 F.3d at 925-26. On remand and in light of Bonneville, FERC reaffirmed that it had found prices in the PX and ISO markets excessive and had reset the prices that all parties in those markets, including the Agencies, agreed to accept for sales in those markets. San Diego Gas & Elec. Co., 121 FERC ¶ 61,188, at PP 10-13 (2007), clarifying October 19, 2007 Order, 121 FERC ¶ 61,067, at P 36 (confirming FERC “revised the pricing formulations contained in the CAISO/PX tariffs” to “reset the market clearing prices” for PX and ISO transactions during refund period).
*431However, as the Ninth Circuit ruled in Bonneville that FERC did not have authority to enforce the corrected prices with respect to governmental entities, FERC vacated its orders that had previously required governmental entities to refund their overcharges, and ruled that the PX and ISO should disburse any remaining payments for the Agencies’ sales to them in the first instance at the original, unmitigated prices, without withholding the refunds they owe. October 19, 2007 Order, 121 FERC ¶ 61,067, at PP 23-24, 36, 57. FERC expressly left the determination of the Agencies’ refund obligations to this Court, holding that “[a]mounts owed and payments thereof by [governmental sellers], if any, as a result of these contractual claims are a matter to be resolved by the relevant court.” October 19, 2007 Order, 121 FERC ¶ 61,067, at P 76, PP 3, 37, 59. FERC further held that the PX and ISO should finish calculating the governmental entities’ refund liabilities, and that the shortfall resulting from these entities’ refusal to pay refunds would be re-allocated to other market participants, including Plaintiffs. Id. at PP 38-39.
WITNESSES
Several witnesses testified at tidal. For Plaintiff PG & E, Roy Kuga, Vice President, Energy Supply Management, Veronica Andrews, Senior Director of Short Term Electric Supply, and Joseph Castillo Manager of FERC Refund Settlements, testified. For SCE, Gary Stern Director of Market Strategy and Resource Planning testified. Michael Strong Manager of Settlements and Systems testified for SDG & E. Peter Garris, (former) Deputy Director for CERS, and Susan Lee, (former) Manager of Trading and Scheduling for CERS testified for The People.
Other witnesses who testified for the PX and ISO included Lawrence Conn, Director of Operations and John Melby, (former) Senior Director of Marketing and Product Development as well as Bradley Bouillon Settlements Manager, Michael Epstein, Director of Financial Planning, and William Regan, (former) ISO Chief Financial Officer.
BPA had testify on its behalf Stephen Oliver, Vice President, Generation Asset Management and Donald Wolfe (by deposition), Public Utilities Specialist. WAPA called Jeffrey Ackerman, Manager of the Colorado River Storage Project Energy Management and Marketing Office and Sean Sanderson, Billing and Settlements Manager.
Two experts were called. Robert Gee, President, Gee Strategies Group LLC for the Plaintiffs, and Jeffrey Tranen, Senior Vice President, Compass Lexecon, for the Defendant.
DISCUSSION
Plaintiffs have brought this suit under two independent alternative legal theories of contract recovery. First, Plaintiffs assert that the Agencies anticipatorily breached their contracts by repudiating their obligation to refund their overcharges to Plaintiffs, entitling Plaintiffs to sue now for damages. PG & E and SCE Complaint, Docket No. 1, Case No. 07-157 (Mar. 12, 2007) (“Compl.”) ¶¶ 78-79. To constitute repudiation, the Agencies’ renunciation of their contract obligation need only be “sufficiently positive to be reasonably interpreted to mean that [they] will not or cannot perform.” Restatement § 250 cmt. b. The promisor’s repudiation of its contractual obligations “ripens into a breach” if and when the promisee “elects to treat it as such.” Franconia, 536 U.S. at 143-44, 122 S.Ct. 1993. Second, and alternatively, Plaintiffs argue that the Agencies have a present contractual duty to pay the refunds they owe, and they have breached that duty by nonpayment. Compl. ¶¶ 73-76. Plaintiffs argue that the Agencies contractually agreed to abide by the prices set by FERC, and are obligated to refund the amounts they charged in excess of those prices. Id. It is true and the evidence is undisputed that the Agencies have not paid the refunds FERC has determined they owe. BPA’s rejection of IOUs’ claims, Pis. Exh. 162; WAPA’s rejection of IOUs’ claims, Pis. Exh. 165; BPA’s rejection of the Peoples’ claim, Pis. Exh. 163; WAPA’s rejection of the Peoples’ claim, Pis. Exh. 166.
Plaintiffs assert that between July 25, 2001, when FERC corrected the prices for the refund period, and September 6, 2005, when the Ninth Circuit issued its Bonneville *432decision, FERC was exerting exclusive jurisdiction over the refund obligations of all PX and ISO sellers. That meant that the Agencies’ contractual refund obligations — the amount, and when and how the refunds would be paid — could be determined only through the FERC regulatory process, and would be enforced by FERC order. After the Bonneville decision, the Agencies could not be compelled to refund their overcharges through the FERC process. Plaintiffs claim, therefore, that the Agencies breached their contracts by failing and refusing to refund their overcharges within a reasonable time after the Bonneville decision, and, in any event, no later than March 2006, when the Agencies denied Plaintiffs’ CDA claims demanding payment of the refunds the Agencies owe. Pis. Post-Trial Brief 59.
On the other hand, Defendant raises several arguments in its post-trial brief asserting that the Plaintiffs’ breach of contract claims must fail. To begin, Defendant asserts that Plaintiffs have failed to demonstrate that the United States breached the SC Agreements that it entered into with the ISO or PX. Def. Post Trial Br. at 2. Additionally, Defendant asserts that the IOUs are estopped from asserting that they are in privity with the United States regarding the PX transactions. Id. Next, Defendant argues that the IOUs failed to demonstrate that they are third-party beneficiaries of the agreements between the United States and the PX, as well as arguing that the State of California failed to demonstrate that is was a surety for the IOUs ISO power purchases. Id. And lastly, Defendant argues that Plaintiffs failed to demonstrate that they are entitled to declaratory relief. Id.
In the alternative, Defendant asks this Court to defer judgment in these eases until the question of the authority of the FERC to “reset” rates retroactively has been determined. Id. That question is presently before the United States Court of Appeals for the Ninth Cii’cuit. Defendant requests this in order “[t]o avoid the prejudice to the United States of potentially inconsistent judgments in that litigation and this [litigation] ... before deciding whether the United States has breached any obligation of its agreements with the ISO or the PX.” Id.
The Court DENIES Defendant’s request to defer judgment. If this was the only case with this issue the Court might be persuaded to stay but since there are cases that say that FERC is entitled to reset prices, this Court is not persuaded to stay this ease. See e.g. Bonneville Power Admin. v. F.E.R.C., 422 F.3d 908 (9th Cir.2005); CPUC v. FERC, 462 F.3d 1027 (9th Cir.2006). Furthermore, for the reasons set forth below, the Court finds that the evidence Plaintiffs produced at trial proves that there was a contract and that Defendant breached its present contractual obligation to refund its overcharges.
I. Are the Plaintiffs Estopped from Asserting Privity?
Throughout this case, Defendant has argued that Plaintiffs lack privity with the Agencies. As held above, the facts at trial showed that the Agencies contracted with and owe contract obligations to the Plaintiffs. First, the evidence showed that the PX and ISO were “public utilities” under the FPA. Second, as a public utility, all the sales and all the purchases of power in those markets were governed by FERC-regulated tariffs. Third, the applicable Tariffs in this case which were filed with FERC, specified the rules to abide by in order to participate in these markets. The Tariffs included when and in what form participants would submit bids to buy and sell power, and the formulas used to establish prices for all purchase-sale transactions as well as prescribing the financial settlements resulting from market transactions. The Tariffs also allocated risks as between the markets and the market participants. Fourth, because the Tariffs were FERC regulated, FERC could alter or amend them, including their pricing formulas, and to review and correct the market-clearing prices. And finally, the Tariffs authorized market participants to seek FERC’s review and correction of prices set under the Tariff formulas.
At trial, the evidence was clear that in order for the Agencies to have access to the PX and ISO markets, the Agencies were required to sign written contracts that incor*433porated these Tariffs, as well as agreeing to abide by the Tariffs’ terms and subsequent changes to those Tariffs. In the ISO, the Scheduling Coordinators were also required to sign a Scheduling Coordinator Agreement. Thus, the evidence is clear and uneontested that when the Agencies signed the PX and SC Agreements, they agreed to accept the prices, terms, and conditions established by the Tariffs, as determined and modified from time to time by FERC. Thus the facts at trial proved that the PX and ISO were facilitators only, and that the payment obligations were between the buyer and seller.2 Since the PX and ISO were pass-through entities or clearinghouses, the contractual relationships of offer, acceptance, and mutual intent ran between the Agencies and the IOUs, the Plaintiffs. The Defendant’s argument is illogical that there is no relationship between the Agencies and Plaintiffs. For example, when one pays a bill with a check, the money may go into the creditor’s bank account, but it is the legal property of the creditor. It meets the debtor’s legal obligations. The same relationship existed here. The PX and ISO were like a bank, and the Agencies and the Plaintiffs had the obligations.
It appears that now, as a last resort, Defendant revives another previously rejected argument, that the IOUs are collaterally es-topped from asserting privity. Def. Post-trial Br. 22-25. In support of its argument, Defendant argues that a FERC order, Southern California Edison Co., 80 FERC ¶ 61,262 (1997) (“Edison ”), estops the IOUs from asserting privity in PX transactions. Def. Br. 24. The Court must, therefore, turn its attention to the question as to whether collateral estoppels applies.
A court’s determination of whether collateral estoppel is appropriate turns on a four-part test. Ammex, Inc. v. U.S., 384 F.3d 1368, 1371 (Fed.Cir.2004). To collaterally estop Plaintiffs from asserting a contractual relationship, Defendant bears the burden of showing that: (1) the issue is identical to the issue decided in a former proceeding; (2) the issue was actually litigated in the former proceeding; (3) the issue was necessarily decided in the former proceeding; and (4) the party against whom preclusion is sought had a full and fair opportunity to litigate its position. Id.
In addressing Edison, Defendant asserts at most that only two parts of the test are met. Thus Defendant ignores the first step, that the issues in the two proceedings must be identical. In Edison, SCE sought an order declaring whether sales through the PX should be considered wholesale or retail sales under the Public Utility Company Holding Act. Here, the issue is whether PX market participants can sue one another under the terms of the PX Tariff. Thus, as the four part test is not satisfied, Defendant’s collateral estoppel argument must fail.
Defendant also contends that SCE should be collaterally estopped from asserting privity with respect to PX transactions on the basis of Southern California Edison Co. v. Lynch, 307 F.3d 794 (9th Cir.2002) (“Lynch ”). Def. Post-trial Br. 24-25. Once again, Defendant does not and cannot demonstrate that Lynch meets the four-part test. Again, there is no identity of issues. The issue in Lynch was whether two generators that were owed money for power they had sold in the PX markets could intervene to challenge the settlement of a lawsuit in which SCE sought to compel the California Public Utilities Commission to increase SCE’s retail rates during the Energy crisis—not, as here, whether SCE and generators could sue one another to enforce obligations under the PX Tariff. Accordingly, the Court finds Defendant has established no grounds on which estoppel could properly be applied. Having found that privity exists and that estoppel does not apply, the Court moves on to the merits of this case.
*434II. Did Defendant Breach its Contractual Obligation to Refund its Overcharges?
Defendant raises several arguments with respect to its contention that the Defendant did not breach any contract. Defendant first raises the defense that it is not obligated to pay the Plaintiffs anything because the contracts signed by the agencies were with the ISO and the PX, not with the Plaintiffs. Defendant further argues that no obligations have arisen under the contracts nor have Plaintiffs identified a tariff provision that they allege defendant breached as well as failing to identify the breach of any contract provision that governs how and when that alleged refund obligation was to have been satisfied. The Court will, therefore, turn its attention to these arguments.
A. Did the Tariffs Allow Prices to be Corrected by FERC?
Defendant contends that because FERC was not authorized to reset ISO and PX prices for the Agencies’ sales, the Agencies did not agree to refund their overcharges when they agreed to be bound by the Tariffs. Def. Post Trial Br. 4-5.
First, Defendant argues that the ISO Scheduling Coordinating Agreements and PX Participation Agreements, which, incorporated the ISO and PX Tariffs provide that the Tariffs govern bidding and settlement. Pis. Exh. 23 at 600 ¶ 2, 603 § 8; Pis. Exh. 26 at 606 § II.A, 608 § 8. These provisions, Defendant argues, do not contain language that the prices that the agencies received for power were subject to retroactive revision, or to any revision of rate change at which the United States agreed to sell power. Def. Post Trial Br. 4.
Second, Defendant argues that Plaintiffs reliance on PX Tariff § 13 and ISO Tariff § 19 is misplaced as Defendant contends these provisions merely preserve the ability of scheduling coordinators and market participants to exercise rights under sections 205 and 206 of the FPA, 16 U.S.C. §§ 824d, 824e(a), “and FERC’s rules and regulations thereunder.” Pis. Exh. 57 at 918-19 § 13; Pis. Exh. 66 at 316-17 § 19, Def. Post Trial Br. 4. As FERC’s rate jurisdiction under sections 205 and 206 expressly applies only to public utilities, Defendant asserts that governmental entities such as BPA and WAPA cannot be regulated under such provisions. Bonneville Power Admin. v. F.E.R.C., 422 F.3d 908, 918 (9th Cir.2005).
Defendant’s arguments notwithstanding, the Court finds that the evidence at trial showed that the Tariffs contain provisions as a matter of contract law allowing FERC to reset prices for all PX and ISO transactions during the relevant time period. This role for FERC is created by a contract between all market participants, both private and governmental. The evidence showed that the PX and ISO Tariffs gave Plaintiffs the contractual right to ask FERC to review and modify the prices charged under those Tariffs during the Energy Crisis.3 It makes FERC an arbitrator under the contract apart from any independent authority FERC has under Federal law over government participants in the PX and ISO markets. Specifically, PX Tariff Section 13 states:
Any amendment or other modification of any provision of this PX Tariff must be in writing and approved by the PX Governing Board in accordance with the bylaws of the PX. Any such amendment or modification shall be effective upon the date it is permitted to become effective by FERC.... Nothing contained in this Tariff or any service or participation agreement shall be construed as affecting, in any way, the ability of any PX Participant receiving service under this Tariff to exercise its rights under Section 206 of the FPA and pursuant to FERC’s rules and regulations promulgated thereunder.
Pis. Exh. 57 at 918-919 (emphasis added.) Section 19 of the ISO Tariff is substantively identical. Pis. Exh. 66 at 316-17.
*435The intention of the parties in creating a contract is key to its interpretation. Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988). Defendant argues that when they entered into the agreements with the ISO and the PX, the agencies could not have intended to be bound by a retroactive revision of rates implemented by FERC because such a revision would have been entirely novel and unforeseeable. Def. Post Trial Br. 4-5. However, in determining the meaning of terms in a contract, the Court may receive and review evidence of trade practice and custom. See e.g., Metric Constructors, Inc. v. NASA, 169 F.3d 747, 752-53 (Fed.Cir.1999) (considering evidence of trade practice and custom); Bos. Edison Co. v. FERC, 441 F.3d 10, 13-16 (1st Cir.2006).
The evidence at trial showed, and as Plaintiffs’ expert witness, Robert Gee explained, PX Tariff Section 13 and ISO Tariff Section 19 have a well understood meaning in the specialized practice and custom of the energy industry. These provisions, he testified, are known in the industry as “Memphis clauses,” and signify that prices charged under the contract are not “fixed,” but rather are subject to review and change by FERC. Additionally, Defendant’s own expert, Jeffrey Tranen, conceded that PX Tariff Section 13 and ISO Tariff Section 19 are “Memphis Clauses” that expressly give the contracting parties the right to seek FERC correction of prices for sales made under the Tariffs. The Court finds that under industry usage, PX Tariff § 13 and ISO Tariff § 19 represent a contractual agreement of the market participants. That agreement is that the participants could petition FERC to investigate whether prices being charged are just and reasonable and, if FERC found they were not, correct those prices to just and reasonable levels.
In addition, the Court holds that FERC’s correction of prices for PX and ISO market sales is, therefore, contemplated by the contract and contractually binding on the Agencies. Although FERC’s regulatory jurisdiction applies only to the rates charged by “public utilities” the ISO and PX are public utilities and the Agencies voluntarily contracted to abide by prices set under the FERC regulated ISO and PX Tariffs because they wanted to trade in those markets. Therefore, the Court finds that the Agencies contractually bound themselves to the corrected rates even though FERC lacked jurisdiction to regulate the Agencies directly.
Even so, Defendant argues that pursuant to § 206(a) of the FPA, FERC possesses the authority to determine a rate only prospectively. Def. Post Trial Br. 4-5. Thus, according to Defendant, FERC does not possess authority pursuant to § 206(a) to reset rates retroactively and, therefore, FERC’s action of resetting rates retroactively is beyond its authority. Thus says Defendant, this action has no effect upon the agencies’ contract obligations. Cf. Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1362 (Fed.Cir.1998) (holding that the ultra vires conduct of a Government official cannot affect a governmental taking). Defendant relies on the testimony of its expert witness Jeffery Tranen that “under the Federal Power Act ... FERC cannot engage in the retroactive resetting of rates.” Trial Tr. 2277:9-14 (Tranen). In support of this position, Mr. Tranen testified that before and after this ease, FERC has only ever changed rates on a prospective basis. During his testimony, Mr. Tranen discussed his understanding of section 206; and in his opinion, FERC does not retroactively reset rates. He further opined that market participants could not have been on notice that FERC would retroactively reset rates basing his opinion upon his direct experience, as an industry executive, with FERC’s customs and practices in cases in which he was involved.
Plaintiffs assert, and the Court agrees, that Defendant’s argument and the testimony provided is contrary to FERC’s own rulings addressing its authority to reset prices for sales under the PX and ISO Tariffs. The testimony provided by Mr. Tranen indicates that he misunderstood how FPA Section 206(b) operates. Under Section 206(b), a market participant files a complaint and FERC initiates proceedings to assess the complaint. As part of that process FERC establishes a “refund effective date” 60 days *436after the date the complaint is filed. FPA § 206(b), 16 U.S.C. § 824e(b) (2000). The imposition of a refund effective date places market participants on notice that prices charged after the refund effective date are provisional and subject to change. CPUC v. FERC, 462 F.3d at 1046-47. FERC’s price correction is prospective from the refund effective date, not retroactive. As Senator Bumpers, the sponsor of the Regulatory Fairness Act, the bill that added this particular provision to FPA Section 206 explained, the statute “would provide that rate reductions ordered by FERC be prospective from, a refund effective date set by the Commission as contrasted to the date of the final Commission order.” 134 Cong. Ree. 22,906, 22,907 (1988) (statement of Sen. Bumpers) (emphasis added); Pis. Post Trial Br. 53. On cross-examination, Mr. Tranen admitted he was unaware of these facts.
Moreover, Mr. Tranen purported to base his opinion on Court of Appeals decisions that discussed retroactive ratemaking generally, but he was unaware of specifically relevant decisions. For instance, in Public Utilities Commission of the State of California v. FERC, 988 F.2d 154 (D.C.Cir.1993), the court explained that “when determining whether a FERC order violates either the filed rate doctrine or the rule against retroactive rate-making, this court inquires whether, as a practical matter, the [parties] ... had sufficient notice that the approved rate was subject to change.” Id. at 164 (emphasis added). Significantly, notice does not mean that the rule against retroactive ratemaking does not apply; rather, notice, such as that provided by a refund effective date, “changes what would be purely retroactive ratemaking into a functionally prospective process by placing the relevant audience on notice at the outset that the rates being promulgated are provisional only and subject to later revision.” Id. (internal quotations and citations omitted). Mr. Tranen did not consider this authority, and others, in formulating his opinion. As such, the Court finds Mr. Tranen’s testimony with regard to this issue of no probative value.
Likewise, it is well settled that FERC’s orders are binding law, unless and until overturned on direct review by a federal court of appeals. As Defendant concedes, this Court has no jurisdiction to consider this attack on FERC’s authority, or to take any action on the assumption that a FERC order may be erroneous. As both FERC and the Ninth Circuit have held,
The Commission’s actions in this proceeding are well within the authority granted to it under section 206, which specifically provides that the Commission may reset prices in Commission jurisdictional tariffs and order refunds back to the refund effective date.
Contrary to the [governmental sellers’] argument, the Commission ... is not engaging in impermissible retroactive action unth respect to rate changes [under the PX and ISO Tariffs]. Rather, in the November 2000 Order, we determined rates charged under the jurisdictional CAISO/PX tariffs to be unjust and unreasonable. Pursuant to the statutory requirement placed upon the Commission by Congress under FPA section 206(b), we established a refund effective date of October 20, 2000. FPA section 206(b) also permits the Commission to order refunds for the period subsequent to the refund effective date through a date fifteen months after such refund effective date. That is what occurred here.
May 29, 2009 Order, 127 FERC ¶ 61,191, at PP 15, 18 (emphasis added). That Order is currently in effect and as such constitutes the governing federal law, unless and until it is overturned. See 18 C.F.R. § 385.2007(e) (2008). Hence, FERC’s actions in correcting prices are consistent with its authority under the FPA as the law now stands and the Agencies are bound by the rulings.
B. Did Plaintiffs Place in Evidence Transactions Showing Overcharges?
Defendant asserts that Plaintiffs have failed to identify transactions in which Plaintiffs were overcharged by the Agencies. Def. Post Trial Br. 6. This assertion ignores the undisputed evidence at trial. Pursuant to their Tariffs, the PX and ISO issued settlement statements to the Agencies showing *437each of the Agencies’ transactions. PX PSABP § 5.4, Pis. Exh. 188 at 1743-44; ISO Tariff § 11.9, Pis. Exh. 66 at 289.
After FERC revised the market-clearing prices for the refund period sales, the PX and ISO issued “refund re-run settlement statements” showing the corrected prices for each of the Agencies’ transactions. Specifically, as the evidence showed, in the July 25, 2001 Order and subsequent orders, FERC directed the PX and ISO to apply the MMCP to sales for each auction interval during the Refund Period in order to recalculate the corrected prices that all sellers should have charged and to re-run their settlement and billing processes under their respective Tariffs. July 25, 2001 Order, 96 FERC ¶ 61,120, at 61,513, 61,516-20; Tr. 261:4-17 (Kuga); Tr. 1022:11-21 (Conn).
Thereafter, and pursuant to FERC’s directive, the PX and the ISO recalculated the accounts of all sellers and buyers in their markets to reflect the corrected prices for the refund period. The evidence showed that BPA never raised any objection to those calculations. Trial Tr. 2069:8-14 (Oliver). The evidence further showed that the PX and ISO then applied the MMCP to the Agencies’ sales data to calculate the Agencies’ refund obligations — the amounts the Agencies charged for each of their sales transactions during the Refund Period in excess of the MMCP — including the interest component authorized by the Tariffs. In 2004-2005 the PX and ISO furnished those calculations to the Agencies in the form of revised settlement statements known as “refund rerun settlement statements.” See Forty-Fifth Status Report of the California Independent System Operator Corporation on Settlement Re-Run Activity (Jul 16, 2010) (“ISO 45th Status Report”), Pis. Exh. 254 at 1969, 1982; Trial Tr. 261:4-22 (Kuga); Trial Tr. 1030:20-1031:4, 1032:16-24, 1035:8-1036:8,1064:18-24 (Conn); Trial Tr. 1301:20-24, 1302:22-1303:4; Trial Tr. 1327:19-21 (Bouillon); Trial Tr. 1492:25-1493:5 (Andrews).
On February 8, 2005, the PX furnished PX market participants with preliminary refund rerun settlement statements. See PX’s February 9, 2005 market notice, P.Ex. 127 (“[yjesterday, February 8, 2005, all CalPX settlement statements in the FERC [Remedy Proceeding] were published”); Trial Tr. 1033:23-1034:3 (Conn) (explaining that PX’s February 9, 2005 market notice notified market participants that “the refund calculations were complete and that the settlement statements were available for review”). The evidence conclusively showed that the final refund rerun settlement statements were provided on May 17, 2005. See PX’s May 17, 2005 market notice, Pis. Exh. 132; Trial Tr. 1041:22-1042:13 (Conn) (explaining that PX’s May 17, 2005 market notice notified market participants that PX had published final refund rerun settlement statements).
In the ISO market, the ISO furnished Scheduling Coordinators with refund rerun settlement statements covering the Refund Period on a rolling basis between October 25, 2004 and February 17, 2006. Trial Tr. 1307:22-1308:2 (Bouillon); ISO 45th Status Report, Pis. Exh. 254 at 1982. For a seller, these settlement statements showed the amount of the seller’s refund obligation, or “delta,” i.e., the difference between the original price (MCP) and the FERC-correeted price (MMCP) per unit of power, multiplied by the quantity. See Forty-Fifth Status Report of the California Independent System Operator Corporation on Settlement Re-Run Activity (Jul 16, 2010) (“ISO 45th Status Report”), Pis. Exh. 254 at 1969, 1982; Trial Tr. 261:4-22 (Kuga); 1030:20-1031:4, 1032:16-24, 1035:8-1036:8, 1064:18-24 (Conn); Trial Tr. 1301:20-24,1302:22-1303:4; Trial Tr. 1327:19-21 (Bouillon); Trial Tr. 1492:25-1493:5 (Andrews). (Feb. 23, 2006), Pis. Exh. 157; Trial Tr. 1050:10-11 (Conn).
It is clear from the evidence that the Agencies have validated those statements, which are, therefore, binding on them. The evidence showed that the IOUs purchased power in every auction in which the Agencies sold power, therefore, the IOUs are entitled to a proportionate share of refunds on every sale the Agencies made at a price exceeding the MMCP during the Refund Period. The trial testimony established that the refund re-run settlement data can be used to identify all such sales and that the specific amount that each Agency owes to each of the IOUs *438can be calculated from the data shown on the refund re-run settlement statements. See Trial Tr. 1506:9-14 (Andrews); 1570:17-1571:1 (Castillo). Cf. Def. Br. 12-13. Contrary to Defendant’s assertion, to establish liability, Plaintiffs need only show they have been injured by Defendant’s refusal to pay the refunds the Agencies owe. Fireman’s Fund Ins. Co. v. U.S., 92 Fed.Cl. 598, 698 (2010) (citing Lindemann Maschinenfabrik GmbH v. Am. Hoist & Derrick Co., 895 F.2d 1403, 1406 (Fed.Cir.1990)). The Court finds that Plaintiffs have done so.
C. Do the Plaintiffs Get Paid Directly?
Next, Defendant asserts that Plaintiffs’ have failed to identify any agency obligation to pay them directly. Def. Post Trial Br. 6. Plaintiffs assert that this miseharaeterizes their claims as alleging the Agencies must pay refunds directly to Plaintiffs, rather than through the PX and ISO. Pis. Reply at 5 (emphasis in the original). The Court agrees. Here, in the liability phase, Plaintiffs are suing to establish the Agencies’ breach of their contractual duty to pay refunds. How damages eventually will be paid is irrelevant to the existence of the Agencies’ liability to refund their overcharges. Plaintiffs have been damaged by the Agencies’ nonpayment regardless of whether payment was to be made directly to Plaintiffs or through the PX and ISO, though the evidence clearly shows the PX and ISO were only conduits for exchanges between Plaintiffs and Defendant. As the Court has already observed during trial, “Plaintiffs will tell [Defendant] if they win” how Defendant should pay the judgment.” Trial Tr. 1527:9-14, 23-25. Whether payment should be made directly or through the PX and ISO is an issue for the Court to resolve after it determines liability.
D. Did Plaintiffs Establish that the Agencies Owe Refunds?
Defendant claims that the letters it solicited from the PX and ISO show that the Agencies owe no refunds. Def. Post Trial Br. 10-11. The undisputed evidence from the PX and ISO witnesses at trial, however, was unambiguously to the contrary. As the PX and ISO witnesses explained at trial, these letters state on their faces that they do not reflect the amounts of the Agencies’ existing refund obligations, which the PX and ISO have calculated but which are reflected in different accounts. Specifically, Dr. Lawrence Conn of the PX testified that the amounts reflected on the PX’s letters to the Agencies, which he wrote, merely reflect the unpaid balances for the Agencies’ PX and ISO sales, and do not include the Agencies’ refund obligations. Trial Tr. 1077:21-1078:14 (Conn). The PX’s letters themselves state that they “do[ ] not provide a complete picture of a participant’s final balance with CalPX.” June 24, 2010 letter from PX to WAPA, PI. Exh. 238 at 2045. The letters then list four adjustments that were excluded from the cash balance amounts reported in the letters; one of those adjustments is the PX’s calculation of the Agencies’ refund obligations. Id. at 2046.
The ISO’s letters are similar. Michael Epstein of the ISO explained that its letters do not “indicate anything about whether BPA and WAPA have any refund liability for the refund period.” Tr. 1422:13-17 (Epstein). Rather, the letters refer only to the amount of any invoices issued to the Agencies that remain unpaid nor do the letters refer to the amounts shown on settlement statements issued to the Agencies for the Refund Period. Trial Tr. 1420:8-9, 1417:14-23,1420:3-11 (Epstein).
In addition, Defendant maintains that it has no obligation to pay refunds until it receives invoices from the PX and ISO. Def. Post Trial Br. 11-12. However, this is impossible in light of FERC’s clear direction in its October 19, 2007 Order, that in light of Bonneville, the collection of the refund payments from the Agencies will not be conducted by the PX and ISO through the issuance of invoices, but pursuant to this Court’s orders when liability is determined in this action. Furthermore, it is clear that the Tariffs do not make invoices a condition precedent to the obligation to pay. Defendant argues that the invoice shows the amount due and a payment date. But the evidence clearly demonstrated that invoices were merely a convenience, a prompt for payment and a summary of the obligation shown on the settlement statements. The *439invoice did not create the legal obligation to pay a specific amount on a specific date. E.g. Trial Tr. 430:23-34 (Melby); Trial Tr. 1946:4-1947:1,1947:8-1949:14 (Oliver).
Agency witnesses did not dispute that the refund re-run settlement statements, which they have validated, establish a binding obligation for payment of a specific amount, without the need of an invoice. As Dr. Re-gan testified, the preliminary settlement statement “is a firm binding obligation for settlement.” Trial Tr. 1182:12-14 (Regan). BPA’s Stephen Oliver acknowledged that the settlement statements establish the amount owed, Trial Tr. 2075:6-8 (Oliver), and stated: “I understand that the basis for the obligations that were in those invoices are established by the settlement statements.” Trial Tr. 2075:13-15 (Oliver). If the Court were to accept Defendant’s position, that even though the Agencies received binding settlement statements establishing their obligations, the absence of an invoice would allow them to retain prices that far exceed those set under their contracts. Thus, to accept Defendant’s argument that the contracts make invoicing a condition precedent to the duty to pay, the Court would have to ignore provisions in the same contracts that set prices for the Agencies’ sales.
In Unisys Corp. v. United States, 48 Fed.Cl. 451 (2001), the court held that the only reasonable interpretation of the contract was that the United States must refund overpay-ments it received under a settlement agreement, even though the contract did not expressly provide for refunds, because the United States’ interpretation would render meaningless the provisions setting the amount to be paid under the contract. Id. at 455. Similarly, an interpretation that the ISO and PX Tariffs do not require payment of refunds — merely because no invoice has been issued — would render meaningless the provisions setting the prices for transactions, as corrected by FERC. While the Bonneville ' decision and the October 19, 2007 Order have compelled Plaintiffs to resort to this Com’t to obtain payment from the Agencies rather than relying on the ordinary invoicing and payment process under the Tariffs, that fact does not entitle the Agencies to simply retain their overcharges. Instead, the Com’t reads the invoicing and pricing provisions as consistent with each other so that the mere lack of an invoice does not allow the Agencies to keep funds to which they are not contractually entitled.
III. Do Plaintiffs’ Contract Disputes Act Claims Satisfy the Statutory Requirements?
Defendant contends that the Court lacks jurisdiction over Plaintiffs’ claims “because plaintiffs did not submit sum-certain claims to a contracting officer.” Def. Post-trial Br. 21. The Court previously rejected this argument in denying Defendant’s December 22, 2009 motion to dismiss. See Order, Docket No. 142, Case No. 07-0157 (May 5, 2010); see also April 16, 2010 Hearing Tr. at 72:4-5. Moreover, the sum certain requirement, which is found in the Federal Acquisition Regulations (“FAR”), does not even apply to the Agencies’ sales of electricity. See Little River Lumber Co. v. United States, 21 Cl.Ct. 527, 534-35 (1990) (timber sales by U.S.); FAR § 2.101 (48 C.F.R. 2.101); id. § 52.233.1 (48 C.F.R. 52.233.1). Rather, whether a CDA claim satisfies the requirements of the CDA depends on the terms of the contract, any applicable regulations, and the facts of the case. Garrett v. Gen. Elec. Co., 987 F.2d 747, 749 (Fed.Cir.1993). “[T]he submission to the contracting officer must include the amount claimed or some method or supporting material by which the total amount then claimed to be involved can be ascertained.” 25 New Chardon St. L.P. v. U.S., 19 Cl.Ct. 208, 210 (1990); see also United States v. Gen. Elec. Corp., 727 F.2d 1567, 1569 (Fed.Cir.1984).
Here, the claims asserted that the Agencies were “contractually obligated to reimburse purchasers for the difference between the rates [they] initially charged in [their] sales in the ISO and PX markets and the lower FERC adjusted lawful rates” and that Plaintiffs sought to recover from the Agencies their “overcharges in the ISO and PX markets” pursuant to the revised prices set by FERC. IOUs’ Amended Claim to WAPA, Pis. Exh. 143 at 17; IOUs’ Amended Claim to BPA, Pis. Exh. 144 at 6; the Peo-*440pies’ Claim to WAPA, Pis. Exh. 145 at 799-800; the Peoples’ Second Amended Claim to BPA, Pis. Exh. 151 at 813. The IOUs’ CDA claims gave notice that the IOUs were owed “approximately $49.8 million” by BPA and “approximately $24.3 million” by WAPA. IOUs’ Amended Claim to WAPA, Pis. Exh. 143 at 17; IOUs’ Amended Claim to BPA, Pis. Exh. 144 at 6. The People’s claims gave notice that BPA was estimated to owe “$119 million” and WAPA owed “approximately $5.2 million.” The Peoples’ Claim to WAPA, Pis. Exh. 145 at 800; the Peoples’ Second Am Amended Claim to BPA, Pis. Exh. 151 at 814. The CDA claims thus informed the contracting officers of the amount of the claims and the method by which damages were calculated.
The IOUs also explained that their stated estimates of the amounts of their damages claims were based on revised market data published by the ISO and PX, but did not reflect more recent refund rerun data from the ISO and PX. Letter from California Parties to BPA (Feb. 1, 2006), Pis. Exh. 152 at 34788; Letter from California Parties to WAPA (Feb. 1, 2006), Pis. Exh. 153 at 34790. There is no dispute that these data were provided to the Agencies. Nor is there any dispute that the Agencies could have determined their refund obligation from the refund rerun settlement data. Under these circumstances, Plaintiffs provided the best information available to them of the amounts of their Claims — all that is needed to satisfy the statutory requirements. See Sun Cal, Inc. v. United States, 21 Cl.Ct. 31, 35 (1990) (where components of claims “could not be ascertained with certainty at the time the claim was filed, it was necessary to estimate them”). And, even if the sum certain applied, that requirement is satisfied by Plaintiffs’ submission of their “[b]est, good faith estimate at the ... time” of the claim. Hernandez, Kroone & Assocs., Inc. v. United States, No. 07-165C, 2009 WL 5549368, at *1 (Fed.Cl. Oct. 5, 2009).
The evidence is clear, Plaintiffs submitted their claim to the contracting officer. Plaintiffs gave adequate notice of their claim by providing the method of their calculations. Therefore, the Government had notice of Plaintiffs claim, with the best available evidence satisfying the CDA requirements.
CONCLUSION
For the reasons set forth above, the Court hereby finds Defendant breached its present contractual duty to pay the refunds they owe, and they have breached that duty by nonpayment.
IT IS ORDERED.
. Complaint of SDG & E, FERC Docket No. EL00-95 (Aug. 2, 2000), Pis. Exh. 58.
. In light of this finding, the Court need not address whether the Plaintiffs are third party beneficiaries as the evidence proved that they are direct beneficiaries. Furthermore, the Court need not address whether the State of California is a surety. The facts proved that under the terms of the market, CERS was a market participant as California bought power through the PX and ISO. As a market participant, CERS had a direct contract relationship with the Government. Therefore, the State of California has the same relationship as any market participant.
. In Bonneville, the Ninth Circuit validated this premise on which Plaintiffs’ contract claim is based:
FERC and intervenor California Parties [Plaintiffs here] emphasize that the [Agencies] entered into agreements with ISO and CalPX that obligated them to abide by the ISO and CalPX tariffs. They argue that these agreements made it obvious to the [Agencies] that the tariffs setting the prices in the ISO and CalPX markets would be subject to FERC regulation_All of this is true. 422 F.3d at 925. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218280/ | OPINION
ALLEGRA, Judge:
This court has previously held that plaintiffs breached their contracts under a Federal subsidized housing program by failing to maintain and operate several apartment complexes in a decent, safe and sanitary fashion. And it has held that plaintiffs were liable on defendant’s counterclaim, which seeks to recover various expenses occasioned by plaintiffs’ misfeasance. Subsequently, the court granted defendant’s motion for default as to its counterclaim, thereby determining the damages owed by BSA Corporation (BSA Corp.). Now pending before the court is defendant’s motion for summary judgment, seeking to determine the damages owed by the other plaintiffs on the counterclaim. After considering the parties’ filings, and for the reasons that follow, the court GRANTS defendant’s motion and concludes that defendant is entitled to judgment, as a matter of law, in the amount of $1,211,049.11.
I. BACKGROUND
The procedural background in this case is extensive, but the following facts will suffice.
Plaintiffs, Benjamin Alii and Shaki Alii, a married couple, and BSA Corp., a corporation wholly owned by the Allis, filed their complaint in this case on November 29, 2001; they later amended their complaint on May 22, 2002, and, again, on August 15, 2002. Plaintiffs' claimed that defendant had breached their Housing Assistance Payment (HAP) contracts with the Department of Housing and Urban Development (HUD) with respect to three apartment complexes located in Detroit, Michigan: Collingwood, Pingree, and Riverside. On October 2, 2002, defendant filed its answer and a counterclaim, alleging *442in the latter that plaintiffs had breached the HAP contracts at issue in failing to maintain the three properties in a safe and habitable fashion.
Trial was held in this case on July 24-27, 2007, in Detroit, Michigan. Following post-trial briefing, on August 26, 2008, the court issued an opinion concluding that plaintiffs had failed to demonstrate any breach of contract by defendant. Alli v. United States, 83 Fed.Cl. 250 (2008) (Alli I). Finding, conversely, that defendant had “demonstrat[ed] that plaintiffs breached the HAP contracts in failing to maintain the properties in a safe, decent and sanitary state,” the court held plaintiffs liable under defendant’s counterclaim for breach of contract as to the Colling-wood, Pingree, and Riverside properties. Id. at 276. The court, in addition, pierced BSA Corp.’s corporate veil and held “Dr. Alii and his wife personally liable for any damages arising under the Collingwood counterclaim.” Id. at 277-78. The only issue that remained for decision, following these rulings, was the amount of damages plaintiffs owed.
On December 22, 2008, plaintiffs filed a motion for reconsideration of the court’s finding that plaintiffs had breached their HUD agreements and that Dr. Alii and Mrs. Alii were personally liable under defendant’s counterclaim. The court denied this motion on February 23, 2009. Alli v. United States, 86 Fed.Cl. 33 (2009) (Alli II). After settlement negotiations broke down, plaintiffs’ counsel withdrew in April 2009. On May 8, 2009, defendant filed a motion for summary judgment on its counterclaim, seeking $79,674.93 for the costs HUD incurred relocating the residents of the Riverside apartment complex, $110,096.45 for the relocation of Pingree’s residents, and $1,024,277.73 for the costs HUD incurred related to the Coll-ingwood apartment complex.1
On July 10, 2009, the court ordered plaintiffs to secure new counsel by July 27, 2009, or risk entry of a default judgment on defendant’s counterclaims pursuant to RCFC 55. On August 5, 2009, plaintiffs filed a motion to proceed pro se, which the court granted, in part, and denied, in part, on August 10, 2009. Dr. and Mrs. Alli were ordered to respond to defendant’s motion for summary judgment on their own behalf and defendant was given the option to file a motion for default judgment as to BSA Corp. On August 14, 2009, defendant filed a motion for default judgment against BSA Corp. Upon receipt of that motion, the Clerk entered the requested default. On August 25, 2009, defendant filed a motion with the court seeking entry of a default judgment against BSA Corp. in connection with its breaches of the Collingwood, Riverside, and Pingree HAP contracts. Attached to this motion were several affidavits, supported by various spreadsheets and exhibits, detailing the damages that defendant asserted were incurred as the result of BSA Corp.’s breaches of the HAP contracts. In response to questioning from the court, defendant withdrew its request for default judgment against BSA Corp. as to both the Riverside and Pingree properties, admitting that privity of contract between BSA Corp. and HUD existed only with respect to the Collingwood HAP contract. On June 11, 2010, the court granted defendant’s motion for default judgment as to Collingwood against BSA Corporation in the amount of $1,024,277.73. Alli v. United States, 93 Fed.Cl. 172 (2010) (Alli III). That same day, the court, acting pursuant to RCFC 54(b), entered judgment in favor of defendant and against BSA Corp. in the amount of $1,024,277.73.
Also on June 11, 2010, the court issued an order setting a deadline of August 27, 2010, for discovery limited to defendant’s counter*443claim as it applies to the individual plaintiffs and the Riverside and Pingree complexes. On September 14, 2010, plaintiffs filed a motion to compel defendant’s responses to nine sets of discovery requests. On December 13, 2010, the court published an order detailing which of plaintiffs’ discovery requests fell within the scope of the limited discovery authorized by the court in its order of June 11, 2011. The court ordered defendant to respond to thirty specific admissions requests, six interrogatories, and fifteen production requests by February 3, 2011. Additionally, the court ordered that “[o]n or before February 28, 2011, the depositions [of] Holly C. Malloy, Ruth E. Pomp and Adon Parker shall occur on a date mutually agreeable to the parties or, barring such agreement, at a reasonable time and place set by plaintiffs.” Finally, the court allowed plaintiffs to file a motion with the court for leave to conduct additional depositions before February 11, 2011.
On February 25, 2011, plaintiffs filed motions for default judgment and sanctions alleging that defendant had improperly redacted information from its discovery requests and impeded plaintiffs from deposing certain witnesses. On June 10, 2011, plaintiffs filed a motion seeking relief from the judgment against BSA Corp. under RCFC 60. In an order issued on July 20, 2011, the court denied plaintiffs’ motions for default and sanctions, finding that “defendant has responded appropriately and to the extent practicable to all plaintiffs’ written discovery requests.” The court specifically noted that defendant’s redaction of personal identifying information related to plaintiffs’ former tenants’ moving costs was not obstructive, since the unit numbers were left unredacted. As to the depositions, the court found that plaintiffs never sought to notice depositions under RCFC 30(b)(1), despite defendant’s repeated attempts to schedule the depositions.
Two days later, on July 22, 2011, the court denied plaintiffs’ motion for relief from the default judgment against BSA Corp.2 In September of 2011, plaintiffs finally hired an attorney. Briefing on defendant’s motion for summary judgment was subsequently completed. Argument is deemed unnecessary.
II. DISCUSSION
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See RCFC 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputes over facts that are not outcome-determinative will not preclude the entry of summary judgment. Id. at 248, 106 S.Ct. 2505. However, summary judgment will not be granted if “the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Becho, Inc. v. United States, 41 Fed.Cl. 595, 599 (2000).
When making a summary judgment determination, the court is not to weigh the evidence, but to “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505; see also Agosto v. Immigration & Naturalization Serv., 436 U.S. 748, 756, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978) (“a [trial] court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented”); Am. Ins. Co. v. United States, 62 Fed.Cl. 151, 154 (2004). The court must determine whether the evidence presents a disagreement sufficient to require fact finding, or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 250-52, 106 S.Ct. 2505; see also Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (“ ‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmov-ing party, there is no genuine issue for tri*444al.’ ” (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348)). Where there is a genuine dispute, all facts must be construed, and all inferences drawn from the evidence must be viewed, in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Stovall v. United States, 94 Fed.Cl. 336, 344 (2010); L.P. Consulting Grp., Inc. v. United States, 66 Fed.Cl. 238, 240 (2005).
At this juncture, this court has already decided that Benjamin and Shaki Alli are liable under defendant’s counterclaim. See Alli I, 83 Fed.Cl. at 276. It remains to determine the damages they owe. For Collingwood, defendant’s main argument is that it is entitled, as a matter of law, to judgment in the amount of $1,024,277.73 against plaintiffs Benjamin and Shaki Alii based on the combined impact of two of this court’s prior rulings: (i) the August 28, 2008, opinion holding that the corporate veil of BSA Corp. should be disregarded and that Dr. Alii and his wife are personally liable for any damages arising under the Collingwood counterclaim, Alli I, 83 Fed.Cl. at 277-78; and (ii) the June 11, 2010, ruling that the United States was entitled to a default judgment on its Collingwood counterclaim as to BSA Corp. in the amount of $1,024,277.73. See Alli III, 93 Fed.Cl. at 182. In defendant’s view, under the 2008 opinion, the Allis are liable to the United States for the amount of the 2010 default judgment entered against BSA Corp. The court agrees.
Following a trial on the record, the court rendered findings holding plaintiffs liable on defendant’s counterclaim, and determining that BSA Corp.’s corporate form should be disregarded, leaving Dr. Alii and his wife liable for the Collingwood portion of the counterclaim. Alli I, 83 Fed.Cl. at 276-77. While these findings are factual in nature and thus not binding under the law-of-the-case doctrine,3 they are, nevertheless, supported by overwhelming evidence. See id. (indicating that “the relevant facts are firmly established”). As such, the court will neither disturb these findings, nor permit plaintiffs a second chance to raise new factual questions as to points that were long ago decided. Bronx Brass Foundry v. Irving Trust Co., 297 U.S. 230, 231, 56 S.Ct. 451, 80 L.Ed. 657 (1936) (“It is not intended that a party shall have two trials of the same issue”); Hyde Const. Co. v. Koehring Co., 388 F.2d 501, 505 (10th Cir.1968) (“[ojrdinarily, one trial of a controversy is enough”). Indeed, plaintiffs have had their second bite of this apple, as this court has already considered and rejected a motion for reconsideration on these same points. See Alli II, 86 Fed.Cl. at 35. No further examination of these findings is warranted.
The default judgment entered against BSA Corp. is final in every sense of the word.4 The court has already denied a motion seeking relief from that judgment. Order No. 01-669 (July 22, 2011). And, subsequent to that denial, Dr. Alli and Mrs. Alli attempted to appeal the default judgment to the Federal Circuit, but their appeal was dismissed as untimely. See Alli IV, 447 Fed.Appx. at 224. In these circumstances, the judgment against BSA Corp. is entitled to binding effect under the doctrine of res judi-cata (or, in the parlance of the Restatement (Second) Judgments, “claim preclusion”). The doctrine serves to “relieve parties of the cost and vexation of multiple lawsuits, con*445serve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). This form of preclusion applies if “(1) the prior decision was rendered by a forum with competent jurisdiction; (2) the prior decision was a final decision on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases.” Carson v. Dept. of Energy, 398 F.3d 1369, 1375 (Fed.Cir.2005); Emiabata v. United States, 90 Fed.Cl. 22, 29 (2009).
The default judgment entered against BSA Corp. satisfies each of these three requirements. This court had jurisdiction to render that judgment. And, even though it was rendered upon a default, the judgment was a decision on the merits. See Morris v. Jones, 329 U.S. 545, 550-51, 67 S.Ct. 451, 91 L.Ed. 488 (1947) (“ ‘[a] judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata, ... even if obtained upon a default.’” (quoting Riehle v. Margolies, 279 U.S. 218, 225, 49 S.Ct. 310, 73 L.Ed. 669 (1929))); see also Nasalok Coating Corp. v. Nylok Corp., 522 F.3d 1320, 1329 (Fed.Cir.2008); Sharp Kabushiki Kaisha v. Thinksharp, Inc., 448 F.3d 1368, 1371 (Fed.Cir.2006). Moreover, while the judgment was directed at BSA Corp., there is little doubt that it may be enforced against Dr. Alii and his wife, who, because of their control over BSA Corp. and the prior litigation, are viewed as “privies” of the corporation.5
Accordingly, the court finds that the judgment against their corporation precludes the Allis from contesting the amount of damages owed on the Collingwood counterclaim. As the result of this court’s prior ruling piercing the corporate veil, Dr. Alii and his wife are jointly and severally liable for the damages that this court previously determined were owed by BSA Corp.
Defendant is also entitled to summary judgment as to the other two properties at issue' (Pingree and Riverside) for a second, independent reason; plaintiffs have failed to create a genuine issue of material fact as to the damages claimed by defendant. The party opposing the motion “must present affirmative evidence in order to defeat a properly supported motion for summary judgment,” Anderson, 477 U.S. at 257, 106 S.Ct. 2505, and that evidence “must point to an evidentiary conflict created on the record.” SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.Cir.1985) (en banc) (citing Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed.Cir.1984)). The opposing party may employ “any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also RCFC 56(c)(1); Grand Acadian, Inc. v. United States, 97 Fed.Cl. 483, 488 (2011).
Plaintiffs have provided no evidentiary materials that rebut the declaration and documents filed by defendant in support of its damages claim. Their rejoinder to defendant’s materials instead takes two forms. First, plaintiffs claim that the materials provided by defendant do not go far enough to support its claims. But, plaintiffs have failed to demonstrate, to any degree, that the materials supplied by defendant are inadmissible or unreliable, nor have they supplied any materials themselves that would lead the court to question whether the expenses in *446question were incurred or reasonable.6 Plaintiffs’ “mere denials or conelusory statements are insufficient” to meet the requirement of RCFC 56(e)(2) that they set out specific facts showing a genuine issue for trial. SRI Int'l, 775 F.2d at 1116; see also Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1337 (Fed.Cir.2010); Prudential Ins. Co. of Am. v. United States, 801 F.2d 1295, 1301 (Fed.Cir.1986); Barmag Barmer, 731 F.2d at 836.
Second, plaintiffs seek a further opportunity to conduct discovery in this matter under RCFC 56(d). But, of course, plaintiffs already have had an opportunity to conduct discovery under this provision — that in response to defendant’s original motion for summary judgment. They have had more than ample time to develop evidence in support of their case. Yet, they come to this motion essentially with empty hands. There is no valid excuse for this. In particular, plaintiffs inexplicably chose not to depose the government witnesses who accumulated and developed the information supporting defendant’s damages ease, even though this court made specific provision for those depositions to occur. See Order No. 01-669 (Dec. 13, 2010).7 Plaintiffs should not be heard now to complain that they lack the evidence needed to rebut defendant’s claim when that deficiency is one of their own making. See Panatronic USA v. AT & T Corp., 287 F.3d 840, 846 (9th Cir.2002); Claytor v. Computer Assocs. Intern., Inc., 262 F.Supp.2d 1188, 1200 (D.Kan.2003). Nor will this court reopen discovery yet again to allow plaintiffs to obtain evidence that, if it exists at all, should have already been obtained. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1026 (9th Cir.2006); Williams v. R.H. Donnelley Corp., 368 F.3d 123, 126 n. 1 (2d Cir.2004).
The preceding considerations demonstrate that plaintiffs have not created any genuine issues of material fact as to defendant’s counterclaims. The court instead believes that defendant has provided evidence that proves its entitlement to damages with the requisite “reasonable certainty.” See Alli III, 93 Fed.Cl. at 181; see also In re Catt, 368 F.3d 789, 793 (7th Cir.2004); Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.1999). Based on that evidence, defendant is entitled, as a matter of law, to a judgment in the amount of $79,674.93 for the costs incurred by HUD in relocating the residents of Riverside, and in the amount of $110,096.45 for the costs HUD incurred relocating the residents of Pingree.8 To determine the full amount owed on defendant’s counterclaims, the sum of these damage amounts must be added to the $1,024,277,73 that plaintiffs owe as the result of the prior default judgment entered against BSA Corp. with respect to Collingwood.
III. CONCLUSION
This case is at an end. Based on the foregoing, the court holds that, on its counterclaim, defendant is entitled to judgment, as a matter of law, in the amount of $1,211,049.11, which amount is owed jointly and severally by plaintiffs Benjamin and *447Shaki Alli. The Clerk shall enter an appropriate judgment.
IT IS SO ORDERED.
. Among its papers, defendant included a signed declaration from Ruth E. Pompa, HUD’s Director of the Multifamily Property Disposition Center in Ft. Worth, Texas (the Disposition Center). The Disposition Center oversaw the foreclosure proceedings and sale of Collingwood and managed the relocation of tenants from Riverside and Pingree. Ms. Pompa, in fact, was personally involved in the foreclosure of Collingwood and in monitoring the costs associated with that foreclosure. Her declaration explained how HUD utilizes its Data Prompt Property Management System to track "property management and sales expenditures for all HUD-insured multifamily properties.” Attached to her declaration were a series of six detailed printouts from that system, showing the expenses (including relocation costs) incurred with respect to each of the properties at issue.
. Additionally, on June 13, 2011, plaintiffs filed a notice of appeal, seeking to appeal the June 11, 2010, entry of default judgment against BSA Corp. On November 16, 2011, the United States Court of Appeals for the Federal Circuit dismissed the appeal, No. 2011-5100, as untimely filed, because more than sixty days had elapsed since the entry of judgment. Alli v. United States, 447 Fed.Appx. 223 (Fed.Cir.2011) (Alli IV).
. The law of the case doctrine, "[a]s most commonly defined ... posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (internal quotation marks omitted). However, a trial court's finding of fact that has not been reviewed by an appellate court is " ‘subject to revision at any time before the entry of judgment.' ” Banks v. United States, 93 Fed.Cl. 41, 52 (2010) (quoting United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986)); see also Alli III, 93 Fed.Cl. at 181 n. 21.
. See Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (a final judgment is "one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”); see also Restatement (Second) Judgments § 13 (1982) (a final judgment "includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect”).
. See Griswold v. County of Hillsborough, 598 F.3d 1289, 1293 (11th Cir.2010) (president and sole owner of corporation was precluded by judgment against corporation because he "had complete control over the prior litigation”); In re Russell, 76 F.3d 242, 245 (9th Cir.1996) (principals were bound by issue-preclusion effects of judgment against their corporation); In re Belmont Realty Corp., 11 F.3d 1092, 1097 (1st Cir.1993) (controlling shareholder of corporation was bound by judgment against corporation); Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869, 877 (2d Cir.1991) (same); Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975) (same); see also 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4460 (2002) (preclusion may apply where "controlling owner has in fact participated extensively in directing litigation by or against the corporation”).
. In their brief, plaintiffs reiterate their objections to the redaction of certain information from the exhibits provided by defendant. The court has already dealt with this claim during discovery, finding that the evidence provided by defendant adequately revealed the units that were affected by HUD’s relocation efforts. See Order No. 01-669C (July 20, 2011).
. Despite their objections to the exhibits and declaration provided by defendant, plaintiffs have failed to conduct any discovery dedicated to showing that any of the costs in question were not incurred or were otherwise excessive.
. It should not be overlooked that, in its trial opinion, this court found that both Pingree and Riverside were dilapidated and in ill-repair, and that these problems, in combination with numerous documented health and safety violations, left HUD with no choice but to relocate the tenants involved. See Alli I, 83 Fed.Cl. at 255-57, 272-75. These and other findings made in the prior opinion, in the court's view, more than suffice to demonstrate that the inaction of the Allis was the proximate cause of the damages in question and that the damages incurred by defendant were foreseeable. See Energy Capital Corp. v. United States, 302 F.3d 1314, 1324-25 (Fed.Cir.2002); Franconia Assocs. v. United States, 61 Fed.Cl. 718, 746 (2004). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218281/ | OPINION
1
HEWITT, Chief Judge.
This case arises from a cancelled construction project on leased property where the United States (defendant or the government), acting through the Federal Emergency Management Agency (FEMA), had sought to create a recreational vehicle (RV) park as emergency housing for victims of Hurricanes Katrina and Rita. See Grand Acadian, Inc. v. United States (2009 Summary Judgment Opinion or 2009 SJ Op.), 87 Fed.Cl. 193, 196, 205 (2009).
Grand Acadian, Inc. (plaintiff or Grand Acadian) alleges that the government breached its contractual obligations to construct infrastructure on the Leased Property, see id. at 195; infra Part I (providing background), and to “‘remove any physical *451additions and improvements, repair any alterations, and restore the premises to the condition existing at the lease commencement date, normal wear excepted,’ ” 2009 SJ Op., 87 Fed.Cl. at 207 (quoting Lease Rider ¶ 6); see also infra Part III.B.3 (describing the Lease). The court granted summary judgment to defendant on Grand Acadian’s claimed breach of an obligation to construct infrastructure. 2009 SJ Op., 87 Fed.Cl. at 199-207. On Sunday, November 6, 2011 the court conducted a site visit and thereafter the trial of Grand Acadian’s claim for restoration and the government’s counterclaims, see Apr. 15, 2011 Order, Docket Number (Dkt. No.) 98, at 4 (setting forth the dates of the trial), which allege that Grand Acadian’s certified claim is false and fraudulent, see Def.’s Third Am. Answer, Affirmative Defenses, and Counterclaims (Answer), Dkt. No. 74, ¶ 187; infra Part V (discussing the government’s counterclaims).
Now before the court are the Transcript (Tr.) of the trial, held in Lake Charles, Louisiana from Monday, November 7, 2011 through Thursday, November 10, 2011, from Monday, November 14, 2011 through Friday, November 18, 2011, see Dkt. Nos. 160-76 (transcripts of proceedings held November 7-10, 2011 and November 14-18, 2011), and in Washington, DC on January 5, 2012,2 see Dkt. No. 184 (transcript of proceeding held January 5, 2012); and Defendant’s Posh-Trial Memorandum of Facts and Law (Def.’s Br.), Dkt. No. 188, filed January 27, 2012; Plaintiffs Post-Trial Brief (Pl.’s Br.), Dkt. No. 189, filed January 27, 2012; Defendant’s Response to Plaintiffs Post-Trial Memorandum (Def.’s Resp.), Dkt. No. 192, filed February 17, 2012; and Plaintiffs Response in Opposition to the Government’s Posh-Trial Memorandum of Facts and Law (Pl.’s Resp.), Dkt. No. 193, filed February 17, 2012.
I. Background
In December 2004 Grand Acadian purchased a sixty-acre tract of wooded property (Grand Acadian’s property or the sixty-acre property) in Sulphur, Louisiana for $217,320. Joint Stip. of Facts (JS), Dkt. No. 108, ¶ 1; cf. Joint Ex. (JX) 1 (July 25, 2004 Aerial Photo3) (showing Grand Acadian’s property). Between July 2005 and October 2005 Grand Acadian cleared and logged the sixty-acre property with the intention of developing it as an RV park. See infra Part III.A.4.
On or about August 29, 2005 and September 23, 2005 Hurricanes Katrina and Rita struck the Gulf Coast region of the United States. See infra Part III.B.l. The hurricanes left approximately 200,000 to 300,000 families without shelter and the federal government sought to provide temporary housing for those who had been displaced. See infra Part III.B.l.
Because the need for temporary housing after the hurricanes exceeded the available supply of housing options that do not require new construction — such as hotel rooms and existing RV pads — the government decided to develop several RV parks. See infra Part III.B.l. Representatives of the government visited Grand Acadian’s property and the government signed a lease (the Lease) for the western half (the Leased Property) of Grand Acadian’s property on December 7, 2005. See infra Parts III.B.2-3. Grand Aca-dian ceased work on the Leased Property, but continued to develop the eastern half of its property (the Non-Leased Property) as an RV park. See infra Part III.A.5.
The government’s contractor, Fluor, began work on the Leased Property on January 7, 2006 and immediately encountered difficulties. See infra Parts III.D.1-3. The upper layer of soil was too wet and unstable to support development and required time-consuming remediation to create a dryer, more *452stable surface. See infra Part III.D.2. The government worked to remediate the soil; however, in the meantime, the demand for temporary housing decreased. See infra Part III.D.3. In light of the delay resulting from the difficulties that Fluor encountered while working on the Leased Property and the simultaneous decrease in demand for temporary housing, see infra Part III.D.3, the government ceased construction and informed Grand Acadian that it intended to exercise its right to terminate the Lease, effective at the end of its first one-year term, see JS ¶¶ 56-59.
Mr. John Patrick (Pat) McConnaughhay is a shareholder of Grand Acadian and serves as its president and as a member of its board of directors. See McConnaughhay Dep.4 8:18-9:1, Oct. 28, 2008. On February 20, 2006, see Tr. 642:1-6 (McConnaughhay), following discussions between Mr. McCon-naughhay and government employees, Grand Acadian sent the government a document styled a settlement proposal (the Settlement Proposal),5 see JX 49 (Settlement Proposal) 0230.6 Grand Acadian sought payment of the balance of the first year’s rent and stated that the government had damaged the Leased Property and had failed to provide for its “restoration to a reasonable condition.” See id. The Settlement Proposal further stated that, “[i]n the event that the lease is terminated and the property is returned to lessor in its present state,. Grand Acadian will, in addition to the costs of restoration of the land and the loss of rental income, suffer numerous damages,” including loss of infrastructure that the government had proposed to construct and leave in place at the end of the Lease and additional expense in proceeding with its own construction plans. Id. at 0231. Attached to the Settlement Proposal was a proposal from D & G Construction, L.L.C. (D & G), the body of which stated in its entirety, “1. Remove and dispose of unsuitable soil from site. 2. Import and compact select soil to subgrade. TOTAL $1,998,000.00.” Id. at 0233. The Settlement Proposal included several items in addition to the amounts in the D & G proposal, including $100,000 for “[r]eplanting of trees,” and stab ed that Grand Acadian “proposes to accept the sum of $2,811,462.38 in full satisfaction of its claim.” Id. at 0230.
The Settlement Proposal did not lead to settlement. “On June 14,2006, Grand Acadi-an submitted a certified claim [ (the First Certified Claim) ] to the Government demanding payment of $5.7 million for ‘repairs and restoration’ of the property.” JS ¶ 61; see also JX 56 (First Certified Claim). However, Grand Acadian attached no documentation to its First Certified Claim to support the amount of $5.7 million that Grand Acadi-an claimed it was owed. See JX 56 (First Certified Claim). On June 22, 2006 the government sent Grand Acadian a letter stating that “[i]n order to review your claim, you must provide us with additional documentation in support of your claim.” JX 57 (June 22, 2006 Letter from FEMA).
“In July 2006, Grand Acadian submitted a revised certified claim [ (the Second Certified Claim) ] to the Government demanding payment of $5.75 million for ‘repairs and restora*453tion’ of the property.” JS ¶ 62; see also JX 59 (Second Certified Claim). Attached to Grand Acadian’s Second Certified Claim was a cost estimate compiled by Laneon Engineers, Inc. (Laneon Engineers), which itemized the components of Grand Acadian’s restoration claim. See JX 59 (Second Certified Claim) 0009-10. Among the items listed in the cost estimate was the cost to “[rjeplace trees originally planned to remain in facility” and the cost to “hydroseed” grass. Id. at 0010. The total cost estimate of $5,749,383 included approximately $4 million for the replacement of soil.7 Id. The certified Second Certified Claim contained no explanation of why Grand Acadian had claimed a cost to replace soil twice as high as the cost listed in its Settlement Proposal.
“On September 28, 2006, Grand Acadian submitted a supplemental certified claim [ (Supplemental Certified Claim) ] to the Government demanding payment of $1 million for remediation of silt run-off into the adjacent bayou.” JS ¶ 64; see also JX 65 (Supplemental Certified Claim). Grand Aca-dian also claimed $570,000 for lost revenue from its planned RV park, $1,120,000 for increased construction costs, $350,000 for increased borrowing costs and $12,000,000 for “Loss of Improvements to Land”; the foregoing increased the amount of its claimed damages by $15,040,000, for a total of $20,789,383. JX 65 (Supplemental Certified Claim) 0271. On December 14, 2006 the contracting officer denied Grand Acadian’s claims in their entirety.8 JS ¶ 69.
On November 30,2007 Grand Acadian filed this action in the United States Court of Federal Claims. See Compl., Dkt. No. 1, at 1. Grand Acadian alleged that Fluor had not followed its own project specifications and faded to create adequate drainage before beginning construction with heavy equipment. First Am. Compl., Dkt. No. 8, ¶¶ 50-53. Grand Acadian alleged that “[a]s this heavy machinery tracked back and forth across the undrained site, it mixed topsoil, surface debris, mud, clay, and other material.” Id. ¶ 54. Grand Acadian alleged that this “destructive activity created an unstable surface that is unable to support the proposed structures.” Id. ¶ 55. Grand Acadian argued that the government “failed to restore and repair the property as required in the Lease with Grand Acadian” and that “[wjhat remained was destruction and devastation instead of the $12,000,000.00 in infrastructure that was promised in return for the Lease.” Id. at 3.9
Grand Acadian’s Complaint sought damages of $12,000,000 for the government’s failure to construct improvements, $6,000,000 for damage to the Leased Property, $2,040,000 “for loss of revenue, increased construction cost and increased cost of borrowing” and $1,000,000 “for remediation of silt run-off into [the] adjacent bayou caused by [the failure of the government’s contractors] to follow appropriate procedure.”10 Id. ¶ 178.
*454In its answer, the government denied that Grand Acadian is entitled to the relief it requested and pleaded as an affirmative defense that the government is entitled to offset the first $800,000 of any damages awarded to Grand Acadian because of a settlement reached by Grand Acadian with Fluor and Fluor’s subcontractors and insurers. Answer ¶ 184. The government also raised the affirmative defense of “illegality as a result of submitting a false claim.”11 Id. ¶ 185. The government alleged that “Grand Acadian made misrepresentations of material fact concerning the pre-lease condition of the property in connection with its certified claim for restoration of trees and grass.” Id. ¶ 218. The government pleaded counterclaims under the False Claims Act (FCA), 31 U.S.C. §§ 3729-31 (2006), the antifraud provision of the Contract Disputes Act (CDA), 41 U.S.C.A. § 7103(c)(2) (West 2012), and the Forfeiture of Fraudulent Claims Act (FFCA), 28 U.S.C. § 2514 (2006), seeking forfeiture of Grand Acadian’s entire claim and dismissal of its complaint, “damages in the amount of Grand Acadian’s unsupported claims, plus the Government’s cost of reviewing the false claims” and “such civil penalties as allowable by law,” Answer ¶¶ 186-233, p. 33.
In two opinions addressing the parties’ motions for summary judgment, the court interpreted the government’s duties under the Lease and narrowed the issues that remain to be decided. The parties first filed cross-motions for summary judgment addressing whether the Lease required the government to construct infrastructure on the Leased Property or to restore the Leased Property to its condition at the beginning of the Lease term. See 2009 SJ Op., 87 Fed.Cl. at 216-17. The court found that the government had no duty to construct infrastructure on the Leased Property, but that, if restoration is required, the government had a duty under the Lease to restore the Leased Property in-accordance with the Lease’s restoration clause (Restoration Clause), that is, to its pre-Lease condition, “normal wear excepted.”12 Id. The court found that, “[wjhile the general rule provides that recovery based on the cost of [restoration] is subject to an absolute ceiling of ‘diminution in fair market value,’ ” this rule is not applicable to the Lease because the Lease had been “specifically tailored” to allow Grand Acadian to require the government to *455return the Leased Property in its pre-Lease condition, “normal wear excepted.” Id. at 216 (internal quotation marks omitted).
The government filed a second motion for summary judgment, arguing that its duty to restore the Leased Property was limited by the narrow scope of its obligations under the Restoration Clause and by the breadth of the exception for normal wear. See Grand Acadian, Inc. v. United States (2011 Summary Judgment Opinion or 2011 SJ Op.), 97 Fed.Cl. 483, 484, 491 (2011). The court examined interpretations of the term “normal wear” in federal caselaw and concluded that “[rjemov-ing trees from a property when necessary to perform the construction for which the property was leased is normal wear.” Id. at 492-95. Accordingly, the court granted the government’s motion for summary judgment to the extent it concerned the government’s duty to replace the trees that were standing on the Leased Property at the beginning of the Lease term. See id. at 495.
The court otherwise denied the government’s motion, finding that genuine issues of material fact remained both as to the amount of damage, if any, done by the government to the Leased Property and as to “the extent of normal wear that would be expected from this type of construction project, including any amount of additional wear that could be expected as a result of the haste with which the housing was to be constructed in the wake of the hurricanes.” Id. at 494-95. The court found unpersuasive defendant’s argument that certain drainage structures constructed by the government — but not filled before the end of the Lease term — constituted normal wear. Id. at 492-94; cf. infra Part III.D.1 (describing construction of the East Ditch, the South Ditch and the retention pond).
The court instead found as a matter of law that “planned additions, improvements and alterations are not themselves normal wear” under the Lease and that the government was required to fill and grade the drainage structures at Grand Acadian’s election. 2011 SJ Op., 97 Fed.Cl. at 493-94. But see infra Part IY.B (finding that, because previously unavailable evidence presented at trial establishes that the retention pond, the East Ditch and the unfilled portions of the South Ditch were left in place at the recommendation of state regulators to control stormwater, the Lease did not require the government to remove them). The court found that “[t]he issues remaining for trial include the condition of the Property both at the commencement of the Lease and the termination of the Lease and the cost to remove any additions and improvements, repair any alterations and restore the Property to its pre-Lease condition, ‘normal wear excepted.’ ” 2011 SJ Op., 97 Fed.Cl. at 500.
II. Legal Standards
A. Breach of Contract
“It is well settled that contracts to which the government is a party — and though a lease may concern and convey a property interest it is also very much a contract — are normally governed by federal law, not by the law of the state where they are made or performed.” Prudential Ins. Co. of Am. v. United States, 801 F.2d 1295, 1298 (Fed.Cir.1986). Further to the foregoing, the Lease states, “This lease shall be governed by Federal law.” JX 31 (General Clauses) ¶ 15; see also infra Part III.B.3 (describing the Lease).
“To recover for breach of contract, a party must allege and establish: (1) a valid contract between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that duty, and (4) damages caused by the breach.” San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed.Cir.1989). This Opinion addresses whether the government breached its obligations under the Restoration Clause of the Lease. See 2011 SJ Op., 97 Fed.Cl. at 500 (“The issues remaining for trial include the condition of the Property both at the commencement of the Lease and the termination of the Lease and the cost to remove any additions and improvements, repair any alterations and restore the Property to its pre-Lease condition, ‘normal wear excepted.’ ”).
*456B. Normal Wear
The court analyzed the application of the term “normal wear” in federal easelaw in its 2011 Summary Judgment Opinion. See generally 2011 SJ Op., 97 Fed.Cl. at 489-91, 494-95. Damage to a property that necessarily results from the purposes for which the property was leased is normal wear. See Mount Manresa v. United States, 70 Ct.Cl. 144, 150 (1930) (stating that damage to a property that was necessary “for the proper utilization of the premises for the purposes for which they were leased” did not violate an obligation to return the property in as good condition as when received, “reasonable wear and tear, and damages by the elements excepted”). “Whatever damages would necessarily result from a use for the same purpose by a good tenant must fall upon the lessor.” United States v. Bostwick, 94 U.S. 53, 66, 24 L.Ed. 65 (1876).
Accordingly, the specific purpose for which a property is leased is central to the determination of what constitutes normal wear. See Riverside Military Acad. v. United States (Riverside), 122 Ct.Cl. 756, 783 (1952) (“There would necessarily have been considerable wear and tear and essential repairs to the premises of [a boys’] school[,] ... [which] is not exactly a lace-curtain affair.”); accord 49 Am.Jur.2d Landlord and Tenant § 743 (2012) (“In determining what constitutes necessary wear and tear in a particular ease, it is useful to consider the character of the specific rights granted in the lease; the lessor may be considered to have given his assent to the wear and tear normally involved with exercising the rights granted”).
Where a lease does not require the lessee to remedy normal wear, the lessee “is required to make good any loss or damage resulting from a want of reasonable care of the property in its use.” Mount Manresa, 70 Ct.Cl. at 149; see also Davenport v. United States, 26 Ct.Cl. 338, 344 (1891) (distinguishing between “repair’s which would have been needed because of the ordinary wear and tear and those needed because of improper use by the defendants”). Whether sufficient precautions were taken to protect a leased property is therefore a relevant consideration. Cf. Consol. Laundries Corp. v. United States, 128 Ct.Cl. 675, 680, 121 F.Supp. 516, 518-19 (1954) (concluding, given the government’s expenditure of $18,000 to “condition[ ]” leased washing machines and its employment of a full-time maintenance crew on the leased premises, that any damage to the washing machines constituted ordinary wear and tear).
Mixing significant quantities of construction materials into the soil of a property has been held not to be normal wear. See, e.g., Mount Manresa, 70 Ct.Cl. at 150 (finding that damage that included mixing building construction materials such as “concrete, wood lath, paper, joists, and various kinds of timber, tar paper and other roofing material, galvanized iron, [and] terra cotta” into the soil was not “reasonable wear and tear”); San Nicolas v. United States, 223 Ct.Cl. 223, 227-29, 617 F.2d 246, 248-49 (1980) (per cu-riam) (finding that merely spreading a layer of sand and crushed coral over a layer of dumped “construction spoil and debris” between one and six feet thick did not satisfy a lease requirement to “restore the premises to the same conditions as that existing at the time of entering this lease, reasonable wear and tear by the elements excepted” (quotation marks omitted)).
C. Fraud and False Claims
1. False Claims Act (FCA)
The FCA13 provides, in relevant part, that “any person who ... knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval,” is liable for a civil penalty “of not less than $[5,500]14 and *457not more than $[11,000] ..., plus 3 times the amount of damages which the Government sustains because of the act of that person.” 31 U.S.C. § 3729(a)(1); cf. 28 C.F.R. § 85.3(a)(9) (2011) (listing civil monetary penalties as adjusted for inflation).
In order to recover damages under the FCA, the government must establish that:
(1) the contractor presented or caused to be presented to an agent of the United States a claim for payment;
(2) the claim was false or fraudulent;
(3) the contractor knew the claim was false or fraudulent; and
(4) the United States suffered damages as a result of the false or fraudulent claim.
Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1043 (Fed.Cir.1994) (citing Miller v. United States, 550 F.2d 17, 23, 213 Ct.Cl. 59, 70 (1977)). If the government does not establish that it suffered damages as a result of a false claim, it may recover only the statutory penalty. See, e.g., Daewoo Eng’g and Const. Co. v. United States (Daewoo), 557 F.3d 1332, 1341 (Fed.Cir.2009).
“ ‘Knowingly1 is defined as (1) ‘actual knowledge,’ (2) acting ‘in deliberate ignorance of the truth or falsity’ of information, or (3) acting ‘in reckless disregard of the truth or falsity3 of information; [in addition,] ‘no proof of specific intent to defraud is required.’ ” Daewoo, 557 F.3d at 1340 (quoting 31 U.S.C. § 3729(b)). “The government must prove the elements of the cause of action [under the FCA] by a preponderance of the evidence.” Commercial Contractors, Inc. v. United States, 154 F.3d 1357, 1362 (Fed.Cir.1998) (citing 31 U.S.C. § 3731(c)).
2. Antifraud Provision of the Contract Disputes Act (CDA)
The CDA15 provides, in relevant part:
If a contractor is unable to support any part of the contractor’s claim and it is determined that the inability is attributable to a misrepresentation of fact or fraud by the contractor, then the contractor is liable to the Federal Government for an amount equal to the unsupported part of the claim plus all of the Federal Government’s costs attributable to reviewing the unsupported part of the claim.
41 U.S.C.A. § 7103(e)(2). This provision is often referred to as “the antifraud provision of the [CDA].” See, e.g., Daewoo, 557 F.3d at 1335.
“The term ‘misrepresentation of fact’ means a false statement of substantive fact, or conduct that leads to a belief of a substantive fact material to proper understanding of *458the matter in hand, made with intent to deceive or mislead.” 41 U.S.C.A § 7101(9). “The government must establish this falsity and intent by a preponderance of the evidence.” Daewoo, 557 F.3d at 1335 (citing Commercial Contractors, 154 F.3d at 1362).
3. Forfeiture of Fraudulent Claims Act (FFCA)
The FFCA provides that “[a] claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof.” 28 U.S.C. § 2514. “In such cases the United States Court of Federal Claims shall specifically find such fraud or attempt and render judgment of forfeiture.” Id. A plea seeking forfeiture of a contractor’s claims pursuant to the FFCA is often referred to as a “special plea in fraud.” See, e.g., Daewoo, 557 F.3d at 1335.
“To prevail under [the FFCA], the government must ‘establish by clear and convincing evidence that the contractor knew that its submitted claims were false, and that it intended to defraud the government by submitting those claims.’ ” Daewoo, 557 F.3d at 1341 (quoting Commercial Contractors, 154 F.3d at 1362). “Proof of negligence or ineptitude does not meet the standard of clear and convincing evidence; rather, ‘[a]n intent to deceive the Government must be proved.’ ” Alcatec, LLC v. United States, 100 Fed.Cl. 502, 517 (2011) (alteration in original) (quoting Miller, 213 Ct.Cl. at 68, 550 F.2d at 22). “The court may, however, consider circumstantial evidence in making its determination.” Id. (citing Kamen Soap Prods. Co. v. United States, 129 Ct.Cl. 619, 642, 124 F.Supp. 608, 620 (1954)).
“Unlike the antifraud provision of the Contract Disputes Act, under which a contractor may incur liability only for the unsupported part of a claim, forfeiture under 28 U.S.C. § 2514 requires only part of the claim to be fraudulent.” Daewoo, 557 F.3d at 1341 (internal citation omitted); see, e.g., Young-Montenay, 15 F.3d at 1042-43 (affirming opinion of trial court finding that a contractor’s entire claim was forfeited pursuant to the FFCA but awarding treble damages under the FCA only for the unsupported portion of the claim).
III. Overview of Evidence
The issues remaining to be resolved at trial were: (1) the condition of the soil on the Leased Property at the beginning and end of the Lease term, (2) whether the condition of the soil on the Leased Property at the beginning and at the end of the Lease term differed such that the Lease required that the soil be replaced or otherwise restored by the government at the end of the Lease term, (3) whether defendant is responsible for the cost of filling the retention pond, the East Ditch and the remaining portions of the South Ditch16 and (4) the merits of the government’s counterclaims.
Grand Acadian’s view of the evidence presented at trial and described in this Part III is that, at the beginning of the Lease term, the soil on the Leased Property was suitable for construction without bringing additional soil from offsite. See Pl.’s Br. 1-7; Pl.’s Resp. 1-7, 15-16. Grand Acadian contends that, during the first four days of construction, the government’s contractor, Fluor, rendered the soil on the Leased Property unusable by beginning construction with heavy equipment while the ground was still wet. See Pl.’s Br. 7-18; PL’s Resp. 2, 7-13. Grand Acadian contends that Fluor’s construction activities pushed organic matter into the soil and mixed the silt and clay layers. See PL’s Br. 7-18; PL’s Resp. 2, 7-13. Based upon the foregoing propositions, Grand Acadian contends that, to restore the Leased Property to its pre-Lease condition, *459two and one-half feet of soil must be removed and replaced with structural fill. See Pl.’s Br. 20-21 (arguing that expert testimony presented at trial proved that soil to a depth of thirty inches — two and one-half feet — requires replacement).
The government’s view of the evidence presented at trial and described in this Part III is that Fluor improved the soil on the Leased Property by removing stumps, tree limbs and other organic debris, with the result that the soil on the Leased Property contains less organic material than occurs in nature. See Def.’s Br. 49; Def.’s Resp. 2, 21-22. The government also contends that Grand Acadian has failed to demonstrate any increase in organic content or mixing of the soil layers caused by the government. Def.’s Br. 46-51; Def.’s Resp. 2, 19-23. The government notes that Grand Acadian did not measure the amount of organic material existing naturally in the soil or the amount of organic material mixed into the soil by Grand Acadian’s clearing and logging activities before the Lease term. Def.’s Br. 48-50; Def.’s Resp. 7-8. The government also notes that Grand Acadian did not measure the clay content of the silty soil on the Leased Property at any point to determine the degree to which the soil types had been mixed. Def.’s Br. 50-51; Def.’s Resp. 22-28. The government acknowledges that “some mixing of surface debris into the soil is a normal incident to the use of heavy construction equipment,” but contends that “Fluor exercised ordinary care in all of its work” and that any effect of Fluor’s activities on the Leased Property is normal wear. Def.’s Br. 49.
A. Grand Acadian’s Soil Sampling, Clearing and Logging Activities, and Construction Before the Arrival of the Government’s Contractors
In December 2004 Grand Acadian purchased a sixty-acre17 tract of undeveloped woodland in Sulphur, Louisiana. JS ¶ 1. The sixty-acre property is bordered along its northern edge by Mosswood Road. See JX 17 (Sept. 31, 2005 Aerial Photo). A bayou abuts its southeast corner. See id. A water tower stands just west of the northwest corner of the sixty-acre property and is visible in many of the photographs presented at trial. See, e.g., JX 54 (Mar. 2006 Aerial Photo); JX 35 (Dec. 29, 2005 Photos) 8856. “In 2004, local parish officials zoned and approved Grand Acadian’s property for development and use as a[n] [RV] park.” JS ¶ 2.
Because the issues to be resolved at trial included “the condition of the [Leased] Property both at the commencement of the Lease and the termination of the Lease and the cost to ... restore the [Leased] Property to its pre-Lease condition, ‘normal wear excepted,’ ” 2011 SJ Op., 97 Fed.Cl. at 500, much of the evidence presented at trial concerned the condition of the Leased Property and its suitability for construction at the beginning of the Lease term.
Before Grand Acadian began to develop its wooded, sixty-acre property, Grand Acadian applied for and received a wetlands determination from the United States Army Corps of Engineers (Corps), see infra Part III.A.1, obtained a report of several composited soil borings and received preliminary engineering recommendations concerning preparation for construction of roads, parking lots and RV parking pads, see infra Parts III.A2-3.
Grand Acadian then began to develop its sixty-acre property by clearing and logging it, a process that changed the sixty-acre property and its soil significantly. See infra Part III. A4. After the government decided to lease the western half of Grand Acadian’s property, Grand Acadian continued to develop the eastern half of its property by removing significant amounts of debris, including debris that Grand Acadian removed from below the surface of the soil using a root rake.18 See infra Part III.A.5.a. Grand Aca-dian also built a road along the western edge of the Non-Leased Property, which blocked drainage and — after the Lease commenced but before the government’s contractors arrived to begin work — caused standing water *460to pool on the Leased Property. See infra Part III.A.5.b.
1. Wetlands Determination and Clean Water Act Permit
Prior to September 2004, before purchasing the sixty-acre property, see JS ¶ 1, Grand Acadian filed a wetlands determination request with the Corps. See Tr. 1657:6-10 (Couret); JX 2 (Determination Request) ll.19 A wetlands determination is a decision by the Corps as to whether a property contains wetlands within the Corps’ jurisdiction; construction on such wetlands requires a permit. See Tr. 1656:6-20 (Couret).
Grand Acadian’s wetlands determination request was prepared by Shawn Mays, who identified himself as an “Engineering Specialist.” JX 2 (Determination Request) 11. Mr. Gary Couret, a botanist employed by the Corps, Tr. 1655:16-1656:2 (Couret), reviewed Grand Acadian’s wetlands determination request and conducted a site visit on September 21, 2004, see id. at 1657:6-1659:21. Mr. Couret testified that Mr. Mays, who did not testify at trial, would have, in preparing Grand Acadian’s wetlands determination request, walked across the sixty-acre property several times, filling out a standardized wetlands determination form at each of forty-three data points. See id. at 1667:21-1669:7; cf. JX 2 (Determination Request) 12 (map of Grand Acadian’s property showing Mr. Mays’ route and the location of the data points).
In his trial testimony concerning the forms Grand Acadian submitted, Mr. Couret explained that wetlands- within the jurisdiction of the Corps are defined by three characteristics: hydrophytic vegetation, hydric soils and wetland hydrology, Tr. 1656:8-11 (Cour-et); see also JX 2 (Determination Request) 33-34 (containing sections labeled “Vegetation,” “Hydrology” and “Soils,” as well as a section labeled “Wetland Determination” that summarizes whether hydrophytic vegetation, hydric soils and wetland hydrology were present). Mr. Couret explained that, in the context of a determination request, “[hjydro-phytic vegetation is plants that are adapted to saturated conditions,” that “[hjydric soils are soils that are saturated for at least 5 percent of the growing season or long enough to create anaerobic conditions within [the] soil,” and that “[wjetland hydrology is at least two weeks of saturation, ponding or flooding.” Tr. 1658:5-1659:3 (Comet).
Grand Acadian’s wetlands determination documents whether Mr. Mays found each characteristic at each data point and, as to each data point, whether it was or was not within a wetland. See, e.g., JX 2 (Determination Request) 33-34 (describing data point eleven). For instance, at one data point that Mr. Mays found to be in a wetland, Mr. Mays found wetland hydrology: the soils were saturated with water beginning at six inches below the surface and oxidized root channels were present in the top twelve inches of soil, see id., indicating that plants were adapted to saturated conditions, see Tr. 1671:9-19 (Cour-et). At this data point, Mr. Mays also found hydrophytic vegetation and hydric soils. See JX 2 (Determination Request) 34.
The Corps issued a wetlands determination, finding that Grand Acadian’s sixty-acre property contained wetlands within the Corps’ jurisdiction. JX 4 (Wetlands Determination) 1.
The Corps determined that a rectangular area measuring 900 feet from east to west and 1,275 feet from north to south, located in the northwest corner of Grand Acadian’s property, contained 42% wetlands. See id. at 1-2. The Corps determined that the remaining area of Grand Acadian’s property contained 23% wetlands.20 See id. Mr. Couret *461testified that approximately the northern two-thirds of the Leased Property are within the wetter area containing 42% wetlands. See Tr. 1665:20-25 (Couret). The Leased Property includes the majority of the wetlands identified in the wetlands determination. Compare JX 4 (Wetlands Determination) 1 (stating that “[p]art of the property is 42% wetland and part of the property is 23% wetland”), with id. at 2 (map showing that most of the area that is 42% wetlands is located in the northwest corner of Grand Acadian’s property, within the Leased Property).
The Corps stated that “[t]he wetlands and nonwetlands are so intermingled that a detailed map cannot be completed without a survey.” Id. at 1. Asked to explain this statement at trial, Mr. Couret testified that “[t]he wetlands or nonwetlands in this particular soil complex are intermingled in such a way that the nonweüands tended to be moundy and the intermound areas tend to be wetland.” Tr. 1666:20-25 (Couret). The Corps advised Grand Acadian that a “permit under Section 404 of the Clean Water Act will be required prior to the deposition or redistribution of dredged or fill material into the wetlands on this property.” JX 4 (Wetlands Determination) 1.
Grand Acadian’s permit application is not in evidence; however, the trial record does contain the July 2005 Corps memorandum in which the application was evaluated and granted. See JS ¶ 6; JX 7 (Clean Water Act Permit Memo) 1220-43. The Corps’ memorandum made several observations about the soil types (silt loams) present on Grand Aca-dian’s property and their drainage characteristics. The memorandum stated that “[ale-cording to [the] Calcasieu Parish soil survey, [Grand Acadian’s property] is located on two soil complexes: Guyton-Messer and Kinder-Messer. Both silt loams are listed as hydrie soils.” JX 7 (Clean Water Act Permit Memo) 1222. A soil complex is a combination of two or more soil types. Cf. id. at 1222-23.
Describing Guyton and Kinder soils, the memorandum stated that “[w]ater and air move through [these soils] slowly.... Water runs off the surface slowly and stands in low places for short periods after heavy rain.” Id. at 1222 (describing Guyton soils); see also id. at 1223 (stating same regarding Kinder soils). Guyton soil “is subject to short periods of flooding during unusually severe rainstorms” and “[t]he surface layer of this soil remains wet for long periods after a heavy rain.” Id. at 1222. Kinder soil “dries slowly after a heavy rain.” Id. at 1223. In contrast, Messer soil is “moderately well drained.” Id. at 1222. At trial, defendant’s expert witness in geotechnical engineering, Mr. Jesse L. Arnold, testified that 80-90% of the Leased Property is made up of the “[v]ery poorly drained” Guyton-Messer soil complex. Tr. 3365:20-3366:10 (Arnold).
2. The First Summit Soil Boring Report/Mr. Hudson
Grand Acadian relies primarily on two witnesses, Mr. Edward Hudson and Mr. Ronald H. Jones, for its description of the Leased Property at the beginning of the Lease. See Pl.’s Br. 2-3; Pl.’s Resp. 1-3. Both witnesses prepared reports which address soil conditions prior to clearing and logging. See infra Parts IIIA.2-4. One of the witnesses, Mr. Jones, plaintiffs expert witness in geo-technical engineering, had not then visited the Leased Property. See infra Part III.A.3.
“In June 2005, Grand Acadian commissioned a report from The Summit Group with an investigation of the near-surface soils existing at Grand Acadian’s 60-aere property ...” (the First Summit Report). JS ¶ 3; see also JX 5 (First Summit Report). The First Summit Report was prepared for no charge by Mr. Hudson, see Tr. 3243:23-3244:6 (Hudson),21 a friend of Mr. McConnaughhay, see *462id. at 3210:4-12, and the owner of the Summit Group, cf. id. at 3208:11-3209:1.
The First Summit Report is the first assessment of the soil at the sixty-acre property for construction purposes and the only assessment undertaken before any clearing, logging and construction activity occurred. The Summit Group is not an engineering firm, id. at 3209:23-25, but serves as a data collection service for engineers at other firms, see id. at 3245:6-9; Tr. 3419:24 (Krie-low) (describing the Summit Group as a “testing lab”); Tr. 884:9-14 (Jones) (stating that for ten years, Mr. Hudson has served as Mr. Jones’s subcontractor for field investigation and geotechnical testing).
According to Mr. Hudson, the First Summit Report provides “a general review of the site conditions” at the time it was written. Tr. 3215:22-3216:1 (Hudson). The report consists of a one-page narrative description of Mr. Hudson’s observations and a table summarizing the results of laboratory tests conducted on three composited soil borings. See JX 5 (First Summit Report) 2601-02.
The narrative portion of the First Summit Report states, without elaboration or explanation, that “[t]he near surface soils, varying [in] depth from 15 to 24 inches, consist of high silt content and low Plasticity Index (PI) soils.” JX 5 (First Summit Report) 2601. The First Summit Report also states that “[t]he soil in this depth range is generally suitable for cement treatment, but would probably not meet the [Louisiana Department of Transportation and Development] specification^] due to the high silt content. This soil type is used for cement treatment on local projects.” Id.
The First Summit Report does not explain how Mr. Hudson estimated that the soils with high silt content vary in depth between fifteen and twenty-four inches or the degree of confidence with which Mr. Hudson stated this conclusion. See id. On cross-examination, Mr. Hudson agreed that whether soil is actually suitable for use in soil cement22 is an engineering judgment. Tr. 3270:3-17 (Hudson); cf. JX 5 (First Summit Report) 2601 (stating that the table of data included in the report merely “reflects the general parameters of the soils encountered”).
The First Summit Report states that “[t]he depth of the cement-treatable soil is excessive and removal of approximately 16 inches would be suggested and normal road construction practice. The remaining 8 inches would be cement or flyash treated,” placed over structural fill and topped with asphalt or concrete to form roads. JX 5 (First Summit Report) 2601. The report notes that suitable structural fill could be obtained from areas where Grand Acadian intended to dig ponds as it developed its RV park. Id. Mr. Hudson conducted no testing of the quantity of organic material present in the samples.23 Tr. 3254:5-9 (Hudson).
Attached to the narrative portion of the First Summit Report is a table containing laboratory test data for three soil borings. See JX 5 (First Summit Report) 2602. The first soil boring is described as containing “Brown Silt” between zero and fifteen inches of depth and “Tan & Brown Silty Clay” between twenty-six and thirty-four inches.24 *463Id. The table does not describe the soil between fifteen and twenty-six inches or state at what depth the transition between “Brown Silt” and “Tan & Brown Silty Clay” occurs. Id. The second soil boring is described as containing “Tan & Brown Silty Clay” between twenty-six and thirty-four inches. Id The third boring is described as containing “Tan & Red Clay” between thirty-four and fifty-five inches. Id. The table does not characterize the upper twenty-six inches of soil at the second boring location or the upper thirty-four inches of soil at the third boring location; nor does the table state the depth at which the transition between any silty surface layer and the clay described in the table occurs at either the second or the third boring locations. See id.
Mr. Hudson testified that the soil samples analyzed in the First Summit Report were composited samples. Tr. 3216:18-3217:4 (Hudson). Composited samples are samples from “a multitude of hand augur borings,” id. at 3217:5-8, that Mr. Hudson collected in the field and, based on visual classification, determined to be consistent with the three soil samples taken for laboratory testing, id. at 3216:18-3217:14. The purpose of using com-posited samples is “to reduce the time and effort for the laboratory work and the people involved” and to “explain ... to the engineer that this site is consistent without giving him a whole bunch of data.” Id. at 3276:4-9.
Mr. Hudson’s method of collecting the composited samples was unstructured and poorly documented.25 Although geotechnical engineers develop boring plans to guide sampling based factors such as “the location, the geology, the expected construction, the type of facility, [and the] expected cost of the project,” Tr. 913:22-914:3 (Jones), no engineer created a boring plan to guide Mr. Hudson’s work, cf. id. at 914:4-6 (Mr. Jones testifying that he did not create a boring plan for Mr. Hudson). Mr. Hudson did not describe any methodology that guided his collection of additional samples. Mr. Hudson was uncertain how many additional samples he had collected, estimating on direct examination that he had collected between thirty and forty soil samples, Tr. 3216:23-24 (Hudson), “[p]robably 15 or 20” of which were on the Leased Property, id. at 3230:5-8, an estimate that contradicted Mr. Hudson’s statement in a 2008 deposition that he had had only collected a total of “[p]robably 15 to 30” samples, a range he described in the deposition as “[j]ust a good guess,” id. at 3251:20-24 (acknowledging prior deposition testimony). Mr. Jones, plaintiffs expert witness in geotechnical engineering, believed that Mr. Hudson collected even fewer samples, stating, “I can’t remember, but I think he made about 15 borings.” Tr. 878:12-14 (Jones). Mr. Jones also testified that three soil bor-ings are insufficient to support an engineering opinion concerning soil conditions across a sixty-acre site. Id. at 913:12-18.
“In civil design work that involves soils information, [the location of soil borings is] cardinal information. It’s absolutely essential that you know where [the soils information] came from.” Tr. 3363:10-12 (Arnold). Mr. Hudson agreed that, although he attempted to collect samples from all parts of the sixty-acre property for consistency, Tr. 3217:22-3218:3 (Hudson), he had no record of the locations of his June 2005 soil borings and could not testify that any of the three soil borings subjected to laboratory testing were conducted on the portion of Grand Aca-dian’s property later leased to the government, id. at 3249:4-3253:12.
Mr. Hudson testified that creating compo-sited samples is “fairly standard” for a site of the size of Grand Acadian’s property, id. at 3217:5-17, but believed that the size of Grand Acadian’s property was forty acres rather than sixty, see id. at 3217:18-21, and that he had composited six samples for laboratory testing rather than three, see id. at 3249:18-22.
Because of the imprecision with which Mr. Hudson collected, analyzed and described his soil borings and because Mr. Hudson was *464uncertain whether any of the three soil bor-ings sent for laboratory analysis were collected on the Leased Property, the First Summit Report provides at best only a suggestive indication of the sediment types present on the Leased Property in June 2005 and the depths at which they occurred before any clearing, logging or construction efforts began on the Leased Property.
3. The CBK Engineering Report/Mr. Jones
“In July 2005, Grand Acadian commissioned a report from CBK Soils Engineering [ (CBK) ] with recommendations for developing Grand Acadian’s 60-acre property as an RV park” (the CBK Report). JS ¶ 4; see also JX 10 (CBK Report). Grand Acadian hired CBK “to do engineering recommendations .for the roadways, parking lots and RV pads for [its] development.” Tr. 877:1-4 (Jones). Mr. Jones, plaintiffs expert witness in geotechnical engineering and the owner of CBK, see id. at 874:22-24, drafted the CBK Report, see JX 10 (CBK Report) 5.
As the basis for his report, Mr. Jones was provided with preliminary construction plans, see Tr. 887:16-18 (Jones), and the soils data collected by Mr: Hudson,26 see id. at 877:5-9; JX 10 (CBK Report) 6 (reproducing the table of test data appearing in the First Summit Report); JX 10 (CBK Report) 1 (“We have reviewed your preliminary site plans and the soils data provided by others.”). Mr. Jones did not visit the site himself. Tr. 909:5-14 (Jones). Mr. Jones explained in the CBK Report that, although the soil borings conducted by Mr. Hudson were consistent with other soil borings he had seen from the area, see id. at 891:13-15, variations can be expected in subsurface conditions,27 JX 10 (CBK Report) 2. Mr. Jones further cautioned:
Should conditions be encountered during construction that are different than those indicated by the soil borings made for this study, this firm should be contacted immediately for an assessment and reevaluation of the recommendations provided herein.
Id.
The CBK Report concluded that the silt soils between the surface and the clay layer on the Grand Acadian property would not provide sufficient support for RV park improvements:
The silt soils present in the upper 2 ± feet across the site are quite moisture sensitive. This material may appear firm when relatively dry, but becomes soft and unstable when wet. Achieving proper compaction of base materials and asphaltic concrete pavement over the silt is rarely possible. In-place stabilization of the upper portions of the silt is sometimes used to provide the “working table” needed to properly construct the base and pavement. However, for this project, where there will be an abundance of fill material available from excavation of the lakes, we recommend that the silt soils simply be removed and replaced with structural fill. Much of the near surface soils below the silts appears suitable for use as structural fill material.
Id.
To construct roads and parking lots, the CBK Report recommended that — after sufficient structural fill had been placed on top of the clay subgrade to reach to an appropriate elevation — a road base of soil cement at least eight inches thick be created and covered with a layer of asphaltic concrete at least two inches thick. See id. at 3-5. To construct RV parking pads, the CBK Report recommended that — after sufficient structural fill *465had been placed on top of the clay subgrade to reach an appropriate elevation — a road base of soil cement at least six inches thick be created and covered with a layer of Portland cement concrete at least six inches thick. See id.
At trial, Mr. Jones explained that the upper portion of the silty soils could be expected to contain organic matter such as grass and roots and could be used for nonstructural purposes such as landscaping. See Tr. 895:2-24 (Jones); id. at 903:20-22 (“[I]t’s implied that you’re going to remove some [of the silty soil] that’s not suitable because it’s going to have organic content.”); cf. Tr. 1357:21-1358:2 (Proehaska) (stating that the CBK Report called for using excavated material for “for general fill outside the structural areas”). Organic matter, when it decomposes, can create “soft spots,” or cause pavement or structures built on top of it to “fail.” Tr. 687:17-688:2 (Boseeker). Mr. Jones testified that he expected there to be approximately sixteen inches of this “excess silt material,” Tr. 936:7-13 (Jones), which could “simply be pushed aside,” id. at 937:1-4.
As to whether any portion of the 2 ± feet of silty soil could be used in combination with other materials to make soil cement to support improvements, Mr. Jones testified that “[o]nee you get to a certain elevation, the bottom portion of that material, the 16- to 24-inch, for example, depth range, many times that material is suitable to be used” in soil cement.28 Id. at 895:14-18; see also id. at 898:4-13 (discussing collection of silty material from “the 16- the 24-inch range” for use in soil cement); id. at 903:10-16 (agreeing that soil “[i]n the 16[-] to 24-inch range” would be suitable for use in soil cement).
Mr. Jones also testified that the clay content of the soil influences whether the soil is appropriate for use as soil cement to support improvements. Clay cannot be made into soil cement, id. at 896:21-23, but, in some cases, the mixing of a controlled volume of clay into the silty material can reduce the amount of cement — an expensive material— required to stabilize it, id. at 900:8-23. The CBK Report recommended that “[qualified geotechnical personnel should guide the selection of available site soils and mixing of materials to meet the specifications.” JX 10 (CBK Report) 4. Mr. Jones testified that construction contractors do not have the training required to identify appropriate sediments for use in soil cement, see Tr. 899:16-25 (Jones), and' that the amount of sand, silt and clay in the soil is “mostly ... defined by testing, laboratory testing,” id. at 924:25-926:2.
The sand content of silty soil also determines whether the soil is suitable for use in soil cement. Mr. Billy R. Proehaska, an expert witness in geotechnical engineering for plaintiff,29 confirmed that laboratory testing is necessary to determine whether silty soil is suitable for use in soil cement. Tr. 1322:16-19 (Proehaska). Mr. Proehaska testified that, based on their soil classification, the silty soils on Grand Acadian’s property could contain between five and forty percent sand and “some of them would not meet the cement stabilization [requirements].” Id. at 1358:22-1359:4.
In a portion of Mr. Prochaska’s deposition read into the record at trial, Mr. Proehaska stated that, whenever silty soil from a construction site is used to create soil cement, samples must be collected from across the site to measure the silty soil’s grain size distribution — the proportions of silt, clay and sand — and organic content.30 See id. at *4661323:18-1324:18 (acknowledging prior deposition testimony); cf. Tr. 3379:13-16 (Arnold) (“[TJhat’s why you run the tests. It’ll vary from point to point. Even in what appears to be an otherwise uniform stratum. If you were to run 10 tests, you would get different results.”); Tr. 3419:25-3420:2 (Krielow) (describing the CBK Report as a “cursory geo-technical analysis”).
While Mr. Jones expected that some of the silty material below sixteen inches of depth at Grand Acadian’s property may have been suitable for use in soil cement, laboratory testing — including grain size analysis and measurement of organic content — would have been necessary after construction had begun to determine what silty soil, if any, could be used. Neither Mr. Jones nor Mr. Hudson performed such tests. See Tr. 3265:21-3266:15 (Hudson) (agreeing that he did not perform laboratory testing of the organic content or the proportions of silt, clay and sand in his soil borings); cf. Tr. 883:23-884:1 (Jones) (agreeing that he did not “actually do the digging at the site” because he “had Mr. Hudson’s information”).
The CBK Report cautioned that, in preparation of the subgrade, “[pjartieular attention should be paid to cleaning out stumpholes.” JX 10 (CBK Report) 3. Mr. Jones explained in testimony that tree roots extend to depths of four feet or more beneath the surface of the soil. See Tr. 939:16-23 (Jones). Mr. Jones testified that the likelihood of organic matter being mixed into the soil is greater when trees are knocked down, pushed into a pile and burned during clearing operations. See id. at 941:15-20. Cutting trees down and then removing their stumps “is a little bit cleaner” because “they’re able to pull the stumps out and pull a lot of the root system with it.” Id. at 942:21-25. Filling stum-pholes by pushing dirt into them is the “pri-mar[y]” manner in which clearing can mix organic material into the soil. See id. at 942:12-21. The descriptions of Grand Acadi-an’s property provided by both Mr. Jones and Mr. Hudson referred to the period before the sixty-acre property was cleared and logged.
4. Clearing, Logging and Hurricanes
Grand Acadian contracted with one company to clear and another to log its sixty-acre property. “Beginning in late July 2005 and continuing through approximately October 7, 2005, Grand Acadian’s contractor, AAA Construction [ (AAA) ], cleared underbrush and small trees approximately six inches or less in diameter from Grand Acadian’s 60-aere property using heavy construction equipment.” JS ¶ 7. At trial, Mr. Ronald Bille-deaux, the owner of AAA, see Tr. 2960:2-12 (Billedeaux) summarized AAA’s work of clearing and “grubbing” Grand Acadian’s property as follows:
Q You did some clearing and grubbing for the Grand Acadian property?
A That’s correct.
Q Please describe what you mean by clearing!?]
*467A Basically, land that was grown with timber and shrubs and I just clear it, push[ ] it, burn it, clean it up.
Q You push down both trees and shrubs?
A Yes, sir.
Q What do you mean by grubbing?
A Grubbing is basically the underbrush and kind of pushing the branches and stuff along with the trees.
Q Pushing them to where, sir?
A We pile them up on the property.
Q Where on the property did you pile?
A Anywhere. We make different piles.
Id. at 2960:18-2961:8.
A little later, Mr. Billedeaux described clearing activities in more detail:
Q Now, sir, when your company is clearing trees, tell us about how that’s done. How do you take a tree from a standing position to getting it to a pile on the side of the property or a pile within the property I believe you said? Just take us through that process if you would.
A Basically, depending on the size of the tree, sometime[s] they push out. We may corner around the tree with a dozer blade to kind of break the root system, and then push it down. If they’re bigger, we can kind of corner or dig around them a little bit with a track hoe and reach a little higher to push them down.
And we can either push them or even pull them out with the track hoe. If they’re small enough, we can just reach and grab and pull some of this stuff.
Q So when you’re pushing a tree after you’ve knocked a tree down, is there a hole left?
A Yes.
Q Okay. And then how do you push the tree into the pile?
A With a dozer.
Q You just push it along the ground?
A Yes.
Q And when you’re pulling a tree after it’s been knocked over, you also use a bulldozer or a track hoe?
A We normally don’t pull them; we push them.
Q Okay. Did you testify earlier you can pull?
A We can pull smaller trees, pull them out of the ground with the track hoe.
Q I see, and then you would still push those using the bulldozer?
A Then we would still push them.
Q Along the ground?
A That’s correct[.]
Q Into piles?
A And sometimes we carry them if it’s a little far.
Q Carry them by hand?
A No, with the track hoe
Q I see. What, if anything, did you do with those holes that were left when a tree was gone?
A We backfilled the holes.
Q What did you use to backfill the holes? A Dozer.
Q I mean what kind [of dirt]? Was it dirt from the area or did you bring in something?
A Dirt from the area. That’s correct.
Q Did you root rake that dirt before putting it into the hole?
A No.
Id. at 2978:24-2980:24.
Mr. Billedeaux was uncertain how many burn piles AAA created, but there were “definitely more than 10.” Id. at 3000:12-3001:6. Using bulldozers, AAA dispersed the ash remaining from burn piles across the sixty-acre property. Id. at 3001:10-15.
The bulldozers that AAA uses vary in weight between approximately 20,000 and 40,000 pounds. See id. at 2962:24-2963:6. The track hoes that AAA uses vary in weight between approximately 25,000 and 40,000 pounds. See id. at 2984:17-19. The time sheets submitted by AAA indicate that, on almost every day that AAA. worked on the Grand Acadian property, it used at least one bulldozer and one track hoe. See Pl.’s Ex. (PX) 200 (Time Sheets) passim. On many *468days, AAA used two track hoes or two bulldozers. See id. passim,}31
Grand Acadian hired Kinder Timber Company, LLC (Kinder Timber) to log its sixty-acre property. See Tr. 3019:26-3020:8 (Wof-ford); cf. JX 13 (Timber Deed) (describing, among other things, the rates at which Grand Acadian would be compensated for different types of timber removed from the property). Mr. Leo Brent Wofford, a manager at Kinder Timber, see Tr. 3019:13-24 (Wofford), testified that Kinder Timber arrived after clearing operations had begun, see id. at 3038:5-12.
Mr. McConnaughhay marked the trees that were to be left for aesthetic purposes rather than being logged or cleared.32 See id. at 3036:8-16 (stating that Kinder Timber left trees flagged by Mr. McConnaughhay); Tr. 102:24-103:4 (McConnaughhay) (describing photos taken in August 2005 showing trees “marked to stay” with white ribbon); Tr. 3738:15-25 (McConnaughhay) (describing a “bu[ffer] zone” of trees left on the Leased Property for aesthetic purposes). Kinder Timber began logging on September 5, 2005. See JX 14 (Landowner Payment Forms) 4947; cf. Tr. 3026:4-16 (Wofford) (stating that the column on each payment form labeled “Work Complete From” describes the date that Kinder Timber performed the work shown).
Kinder Timber used a mechanical shear to cut down trees. Tr. 3029:4-8 (Wofford). A mechanical shear is composed of mechanical arms that encircle the tree and a large circular saw that cuts it. Id. at 3029:18-26. Kinder Timber then used a skidder, a “four-wheeled] machine with a grapple on the back that goes around, picks the trees up and brings it back to ... a loading site.” Id. at 3029:9-12. Mr. Wofford explained that the grapple lifted the cut end of the tree and then dragged the top of the tree and the limbs — about 75% of the tree’s mass — along the ground, see id. at 3030:5-3031:3, to a loading site on Grand Acadian’s property located just south of Mosswood Road, see id. at 3032:25-3033:11.
At the loading site, each tree was pulled through a de-limber and was loaded onto a truck with a hydraulic loader. See id. at 3029:13-17. The de-limber cuts off the limbs and the top portion of the tree, which is “not merchantable.” Id. at 3033:22-3034:9.
Using the skidder, Kinder Timber then dragged the limbs and other debris from the loading site to a burn pile closer to the middle of the sixty-acre property, id. at 3034:20-3035:7, tended by AAA, see id. at 3038:5-9 (stating that the contractor “doing the burning” was also “doing some clearing”); cf. Tr. 3000:8-3001:6 (Billedeaux) (stating that AAA had burn piles on Grand Acadi-an’s property). Trees shorter than fifteen or sixteen feet — those approximately two or three inches in diameter — are not saleable and Kinder Timber either left them standing or ran over them when using the skidder to remove the larger trees. See Tr. 3036:17-3037:2 (Wofford).
During the nine days that Kinder Timber worked on Grand Acadian’s property — from September 5, 2005 to September 13, 2005— Kinder Timber removed 1,085 tons33 of timber for which it paid Grand Acadian $7,855.33. See JX 14 (Land Owner Payment Forms) 1-3. While working on Grand Aeadi-*469an’s property, Kinder Timber used one skid-der and one mechanical shear. See Tr. 3031:10-12 (Wofford). A mechanical shear weighs approximately 40,000 to 42,000 pounds and a skidder weighs approximately 30,000 pounds. Id. at 3031:4-17. In addition to the weight of the skidder itself, the skid-der can “easily” carry a load of 3,000 pounds. Id. at 3032:22-24.
Skidders have rubber tires and sink more easily into the ground than track-mounted equipment, which spread their weight across the length of the tracks. See Tr. 1791:10-25 (Gourgues); Tr. 1738:17-24 (Beck) (stating that “a track machine kind of rides over debris” and “does not pack stuff like rubber tires and stuff do”). “[I]n wet conditions, ... a ski[dd]er will gut the property up, literally gut it.” Tr. 3432:11-15 (Krielow). “If you have skidder ruts, then you have a situation where the organic [matter] is going to be pushed much deeper than if it were a dry site.” Id. at 3452:9-11.
The work performed by Kinder Timber and AAA left skidder ruts and ruts from tracked equipment in the soil across Grand Acadian’s sixty-acre property. See JS ¶ 36 (stating that, in December 2005, ruts were scattered across the property); Tr. 1784:17-21 (Gourgues) (stating that he observed “a lot of skidder ruts” when visiting the Leased Property on December 29, 2005); id. at 1792:18-1793:2 (stating that he observed “skidder ruts and impressions in the soil that [were] caused by rubber tire logging equipment” when visiting the Grand Acadian property on December 29, 2005); Tr. 1159:9-11 (Jarboe) (agreeing that he observed rutting); JX 34 (Dee. 15, 2005 Aerial Photos) 2446-48 (showing ruts across the entire sixty-acre property).
After Kinder Timber logged Grand Acadi-an’s property, AAA pulled up the stumps left behind. Tr. 2985:2-8 (Billedeaux); cf. Tr. 3035:8-13 (Wofford) (stating that Kinder Timber did not remove the stumps or root systems of the trees it cut down).
AAA filled the stump holes with soil that had not been root raked. Tr. 2980:14-24 (Bil-ledeaux). As Mr. Jones, plaintiffs expert witness in geotechnical engineering, explained in his discussion of preparing the subgrade for construction work, filling stum-pholes by pushing dirt into them is the “pri-mar[y]” manner in which clearing can mix organic material into the soil. Tr. 942:12-21 (Jones). As Mr. Jones testified, filling stum-pholes in this manner can introduce grass, roots and tree limbs into the subsurface soil. See id.; cf. Tr. 3378:11-21 (Arnold) (describing same).
Over the course of its engagement with Grand Acadian, AAA ran a root rake over the entire sixty-acre property to remove debris from its surface, but held the teeth of the root rake at or near the surface of the ground, see Tr. 2985:21-2987:15 (Billedeaux), rather than lowering the teeth of the rake into the ground to gather roots or other organic material, see id. at 3005:18-20 (stating that “[t]he root rake was just like a leaf rake”).
Hurricane Rita struck on September 23, 2005, see JS ¶ 13, uprooting some of the remaining trees, see Tr. 2967:7-15 (Bille-deaux). “For approximately two weeks following Hurricane Rita, ... AAA ... piled up some downed trees and uprooted some stumps from Grand Acadian’s 60-acre property using heavy construction equipment, but AAA ... did not remove any downed trees or stumps from the property during this time.” JS ¶ 14.
Although Mr. Billedeaux agreed with counsel for plaintiffs characterization that, when AAA was working, “the property was generally dry,” id. at 3007:18-20, and testified that Grand Acadian’s property was dry “[w]hen we started,” id. at 3006:16-18; see also JX 12 (Aug. 1, 2005 Photos) 1075 (showing bulldozer disturbing dust as it worked, indicating that the surface of the soil was dry), the presence of ruts in the soil at the beginning of the Lease term, see JS ¶ 36, indicates that the soil was not completely dry at all times when AAA and Kinder Timber were working. Mr. Wofford testified that Kinder Timber informed Mr. McConnaughhay that Kinder Timber would log Grand Acadian’s property only if the soil was dry, but did not state how dry the soil needed to be for logging to proceed. See Tr. 3021:2-3 (Wof-ford).
*470The rain data presented at trial demonstrates that there was significant rainfall during and just before the time that AAA and Kinder Timber were working. Between mid-July 2005 and October 7,2005, there was rainfall of one-half inch or more on twelve days. See PX 179 (Rain Data) 1285-86. Rainfall approaching or surpassing one inch fell on July 15 (1.55 inches), July 22 (2.29 inches), August 3 (1.38 inches), August 10 (.98 inches), August 15 (.82 inches) and August 22 (1.65 inches). See id. at 1285. Eight days after the rainfall associated with Hurricane Rita, which totaled 9.15 inches on September 24 and .34 inches on September 25, see id. at 1286, AAA resumed work on Grand Acadian’s property, see Tr. 2983:14-2984:2 (Billedeaux) (stating that AAA resumed work on October 3, 2005). Grand Acadian did not cut any ditches to drain the water that had fallen during Hurricane Rita before AAA resumed its clearing. See Tr. 521:12-18 (McConnaughhay).
The soils on the Leased Property drain slowly and the northern two-thirds of the Leased Property are within an area that is 42% wetlands. See supra Part III.A.1. In some areas, the soil just below the surface remains saturated with water after the surface has dried. See supra Part III.A.1. Based on the evidence, it appears likely that Kinder Timber and AAA worked in both wet and dry conditions and on both wet and dry portions of Grand Acadian’s property.
When AAA and Kinder Timber finished their work, they had removed almost all of the trees and underbrush from Grand Acadi-an’s sixty-acre property. See JX 34 (Dec. 15, 2005 Aerial Photos) 2446-48; see MeCon-naughhay Dep. 130:4-8, May 21, 2010; JX 18 (Trip Report) 8671 (stating that “[t]he lot has been mostly cleared of vegetation”). However, AAA and Kinder Timber left several piles of debris. McConnaughhay Dep. 130:9, May 21, 2010. Although Mr. Billedeaux believed that he had pulled up and burned all of the stumps, see Tr. 2966:18-22 (Billedeaux), and root raked the entire property, see id. at 2985:21-2987:15, the parties have stipulated that tree stumps, downed trees and other debris were still scattered across the Leased Property in December 2005, JS ¶ 36. The remains of trees, limbs, branches and roots could be seen mixed into the soil. Tr. 3847:8-16, 3852:16-22 (Berg) (describing her observations during a December 29, 2005 site visit); JX 35 (Dee. 29, 2005 photos) 8849-50, 8852, 8856; Tr. 3672:11-21 (Samnik) (describing “roots sticking up that have been broken off and torn,” visible in a photograph taken on December 29,2005).
5. Grand Acadian’s Construction Activities on the Non-Leased Property
After the government determined that it would lease only the western portion of Grand Acadian’s property, see infra Part III. B.2, Grand Acadian continued to develop the Non-Leased Property as an RV park.
a. Removing Debris, Logging and Clearing
On or around November 9, 2005 Grand Acadian hired D&G Construction, L.L.C. to finish clearing and grubbing the Non-Leased Property, establish drainage, dig ponds and build roads. See McConnaughhay Dep. 29:13-30:15, May 21, 2010; JX 22 (D & G Daily Reports) 0056 (describing, on the earliest of D & G’s daily reports in evidence, work done on November 9, 2005). D&G restricted its work to the Non-Leased Property and did “[njothing” on the Leased Property. McConnaughhay Dep. 30:16-22, May 21, 2010.
“Beginning in November 2005 and continuing through December 2005, ... D&G ... cleaned all of the debris out of the soils so there would not be any organic matter, sold 10 or 15 dump truck loads to the public, and spread the rest out across the non-leased property.” JS ¶ 22. D&G used a root rake to collect this organic matter, which it piled and burned. See Tr. 223:8-17 (McConnaugh-hay). Debris that did not burn was hauled off the property. See id. at 640:9-20, 547:2— 4. D&G hauled ninety-two dump truck loads of debris off of Grand Acadian’s property.34 See id. at 543:8-554:7.
*471b. Construction of the Center Road, Blockage of Drainage
Around the same time, D & G began to construct a road that ran along the western edge of the Non-Leased Property, adjacent and parallel to the Leased Property (the Center Road). See JX 34 (Dec. 15, 2005 Aerial Photos) 2448 (showing an unpaved road between the Leased Property and the Non-Leased Property); Tr. 532:5-540:2 (MeConnaughhay) (reading aloud D & G’s daily reports for the period of time from November 9 to December 3, 2005 and describing the work that took place); JX 22 (D & G Daily Reports) 0056-78 (describing roadwork undertaken before December 15, 2005; making several references to hauling, placing and compacting fill material on roads).
When D & G built the Center Road, it followed the recommendations in the CBK Report, first removing the silty soils to expose the clay subgrade beneath them. See MeConnaughhay Dep. 16:3-25:14, May 21, 2010. D & G then placed and compacted clay fill that it had excavated from the areas where Grand Acadian was constructing ponds. See id. at 19:22-21:3; Tr. 539:19-540:2 (MeConnaughhay) (describing the placement and compaction of clay in layers six to eight inches thick). D & G placed silt on top of the clay to form the road base layer, but halted work without mixing cement into the silt to make soil cement, see MeCon-naughhay Dep. 18:18-22, May 21, 2010, or pouring the two inches of asphalt recommended by the CBK Report, see id. at 24:8-13.35
Before the development of Grand Acadi-an’s sixty-acre property began, water drained across the surface of the soil — a process that Mr. MeConnaughhay called “sheet flow,” Tr. 59:17-60:6 (MeConnaughhay) — traveling from northwest (that is, the northwest corner of the Leased Property) to southeast (that is, the southeast corner of the Non-Leased Property), see id. at 59:17-25 (stating that water drained toward the bayou); Tr. 3442:14-19 (Krielow); cf. Tr. 1138:7-10 (Jar-boe) (stating that the property sloped from west to east).
Defendant’s expert in construction practices and construction cost estimation, Mr. Carl J. Krielow, explained that, because the clay used as structural fill for the Center Road was impermeable to water, see Tr. 3449:3-11 (Krielow), the Center Road blocked drainage from the Leased Property,36 id. at 3448:7-8. Mr. Krielow testified, “Once you elevate the surface on the non-leased side[,] it obstructs the natural flow of the surface drainage on the leased side,” id. at 3443:3-5, an observation confirmed by at least two of the fact witnesses working on the Leased Property, see Tr. 1842:15-1843:4 (Gourgues) (stating that construction of the Center Road “definitely stopped the flow of water”); cf. Tr. 747:23-748:15 (Rothkamm) (stating that he could tell by looking at Grand Acadian’s property that the Leased Property was lower than the Non-Leased Property as a result of construction activities on the Non-Leased Property).
Construction of the Center Road caused the Leased Property to hold more water after rainfall. Before construction of the *472Center Road, on approximately September 23, 2005, Hurricane Rita struck the Gulf Coast area, see JS ¶ 13, dropping 9.15 inches of rain in Sulphur, Louisiana on September 24 and .34 inches on September 25, see PX 179 (Rain Data) 1284, 1286. An aerial photograph taken six days later, on September 31, 2005 indicates that there was little or no standing water37 on Grand Acadian’s sixty-acre property. See JX 17 (Sept. 31, 2005 Aerial Photo). In contrast, on December 15, 2005 2.55 inches of rain — a significantly smaller amount — fell in Sulphur, Louisiana, see PX 179 (Rain Data) 1284, 1288, but submerged 50-60% of the Leased Property in water, see JS ¶ 39. Small quantities of rain also fell on December 17 (.1 inches), December 18 (.21 inches) and December 25 (.21 inches). See PX 179 (Rain Data) 1288. Because of the obstructed drainage, the Leased Property remained wet and muddy on December 29, 2005. See Tr. 3847:8-11 (Berg) (describing the Property as “a very wet, muddy site” on December 29, 2005); Tr. 1786:21-1787:5 (Gourgues) (describing site conditions as “wet” on December 29, 2005); cf. 1726:1-18, 1730:13-19 (Beck) (stating that in late December 2005 or early January 2006 the Leased Property had standing water, including a “real wet area” west of its center).38
When construction of the Center Road blocked natural drainage from the Leased Property, see Tr. 3448:3-21 (Krielow), it also worsened a condition that Mr. Krielow described as “perched standing water,” see id. at 3444:3-10. The term “perched standing water” refers to “water that is standing on the surface and in the soft soils near the surface because it cannot penetrate the clay that’s beneath it, so it has to drain through the surface.” Id. at 3444:11-16; see also Tr. 2820:10-14 (McDowell) (“It’s a trapped water condition ... where there is no drainage path. There is nowhere for the water to go besides evaporation.”). The effect of perched water is to “make the upper soils until you get to the clay base soft and mushy.” Tr. 3444:17-21 (Krielow).
B. The Hurricanes, the Government’s Evaluation of Grand Acadian’s Property for Temporary Housing, and the Lease
1. Hurricanes Katrina and Rita
“On approximately August 29, 2005, Hurricane Katrina struck the [G]ulf [C]oast region of the United States and caused a declared state of emergency in Louisiana.” JS ¶ 9. “On approximately September 23, 2005, Hurricane Rita struck the [G]ulf [C]oast region *473of the United States, including Sul[ph]ur, Louisiana, and exacerbated the declared state of emergency that had existed in Louisiana from Hurricane Katrina.” JS ¶ 13. According to Mr. Stephen M. DeBlasio, Sr., who was assigned to the Gulf Coast region as the Housing Area Command logistics support representative before Hurricane Katrina struck, Tr. 1607:9-12 (DeBlasio), the hurricanes left approximately 200,000 to 300,000 families without shelter, see id. at 1608:6-8. The federal government sought to provide temporary housing for those who had been displaced. See JS ¶ 16.
When providing temporary housing for hurricane victims, Mr. DeBlasio explained, FEMA’s “first preference is to use available housing stock in the area: apartments, even hotels, [and] motels.” Tr. 1610:3-5 (DeBla-sio). FEMA’s second preference “would be to get units39 installed on an individual’s private property” to avoid the need for relocation and other services. Id. at 1610:8-12 (footnote added). FEMA’s third preference “would be to go out and lease commercial pads” on which to place housing units. Id. at 1610:13-19. FEMA inspected every commercial RV pad in the state of Louisiana to see whether housing could be placed on them. Id. at 1610:15-23.
If it is not possible to house hurricane victims using its first three methods, FEMA will construct group sites where it can place multiple units — an approach that is “very costly and ... [the] least desirable method of housing individuals.” See id. at 1610:24-1611:10. Mr. DeBlasio testified that “one of the risks” involved in constructing group sites is that they will not be completed before they become unnecessary:
[A]s you take a lot of time to build these sites out, and it’s not uncommon to take a lot of time, usually it’s 45 to 60 days at a minimum to build a group site. Other things start to happen. Folks get back into their homes, they go and rent another place because there were a lot of renters out there. Commercial parks come up and become available. Utilities, sewage, water, electrical utilities start coming online so people can get back into their own homes if they were not damaged directly.
Id. at 1627:12-24.
Mr. DeBlasio explained that his initial goal was to bring 500 units of housing into Mississippi and 500 units of housing into Louisiana every day. Id. at 1608:8-11. After Hurricane Katrina, FEMA’s efforts to provide housing in Louisiana were “lagging behind quite a bit and we were getting a lot of pressure,” leading FEMA to appoint Mr. De-Blasio as the housing officer for FEMA’s joint field office in Baton Rouge, Louisiana, a position in which he focused solely on providing housing in the state of Louisiana. Id. at 1611:14-22. Mr. DeBlasio was given a goal of housing 1,000 families per day in Louisiana, which he described as “scientifically, physically impossible.” Id. at 1614:22-25. For two months after Hurricane Rita, “the numbers were increasing all the time,” and “[t]here was no end in sight.” Id. at 1614:16-20.
When installation of housing units on private property and commercial RV pads proved insufficient, Mr. DeBlasio and his staff began to discuss “the possibility of building a couple of group sites,” including one on Grand Acadian’s property. Id. at 1616:15-1617:6.
2. The Government’s Evaluation of Grand Acadian’s Property for Temporary Housing
“On September 20, 2005, the Government’s strike team of contractors evaluated Grand Acadian’s 60-aere property from looking at the surface. The Government’s strike team did not conduct any subsurface testing on Grand Acadian’s 60-acre property.” JS ¶ 12. “On October 10, 2005, representatives from the Corps evaluated Grand Acadian’s 60-acre property from looking at the surface. The Corps did not conduct any subsurface testing on Grand Acadian’s 60-aere property.” JS ¶ 17. Mr. David Scott Rothkamm, the site manager for Fluor, Tr. 733:22-23 (Roth-kamm), the government’s contractor for its RV park development on the Leased Proper*474ty, agreed that, based on his observations, he “didn’t anticipate any problems building the project,” id. at 777:25-778:4.
Dr. Herman H. Jarboe, a Corps water resource planner specializing in ecosystem restoration, Tr. 1128:19, 1130:2-5 (Jarboe), participated in the October 10, 2005 site visit, see id. at 1135:18-1136:3, and testified regarding his observations. Dr. Jarboe’s role was to walk over potential housing sites and evaluate, principally, “natural resource conditions and the overall state of the site in regards to natural resources.” Id. at 1132:13-21. Dr. Jarboe wrote in his trip report that “there is a damp area which currently holds water and smells of a highly eutrophic environment very much like a former agriculture feed lot.” JX 18 (Trip Report) 8669. At trial, Dr. Jarboe explained that by “smells of a highly eutrophic environment,” he meant that the wet area smelled of urine, which is characteristic of an area with high levels of nitrogen and phosphorous. Tr. 1153:17-1154:6 (Jarboe). Dr. Jarboe further testified that “if an area has stood for a while, ... [sjometimes in a eutrophied area, algae develops around the edges of the pools.” Id. at 1154:10-14. Dr. Jarboe observed “the precursors o[f] algae development at this site as well.” Id. at 1154:15-16.
Dr. Jarboe observed that, according to a 1998 floodplain map, “at least 70% of the site was in the 100-year flood plain.” JX 18 (Trip Report) 8670. Dr. Jarboe noted in his trip report that Grand Acadian had applied for a permit under the Clean Water Act, that a permit had been issued and that Grand Acadian had satisfied the permit’s mitigation requirements.40 Id. at 8670-71.
“On October 9, 2005 the Government directed its contractor, Fluor,41 to begin preparing designs for the proposed development of Grand Acadian’s 60-aere property.” JS ¶ 16. “On October 11, 2005, the Government expressed interest in leasing Grand Acadi-an’s property for use as a temporary housing site.” JS ¶ 18.
Because Grand Acadian’s property was located in a flood plain, the government decided, in light of an executive order and FEMA regulations requiring FEMA to avoid construction in flood plains, to lease only the western half of Grand Acadian’s property, which was almost entirely outside of the flood plain. See Tr. 1773:10-1775:1 (Kilner); JS ¶ 20 (stating that the government “decided to pursue a lease of the western 30 acres of Grand Acadian’s property”).
After the government decided to lease only the western half of Grand Acadian’s property, Grand Acadian hired D & G to continue development of the Non-Leased Property as an RV park. See supra Part III.A.5 (describing Grand Acadian’s development, beginning around November 9, 2005, of the Non-Leased Property).
3. The Lease
“On December 7, 2005, the Government and Grand Acadian entered into a contract to lease approximately 30 acres of Grand Acadi-an’s land.” JS ¶ 32; see also JX 31 (Lease42 *475). “The exact amount of Grand Acadian’s property that was leased to the Government was 27.4 acres.” JS ¶34. The Lease commenced on December 7, 2005 for a term of three years at an annual rent of $252,262.50 “subject to termination and renewal rights.” JX 31 (Standard Form Lease) ¶¶ 2-3.
A section of the Lease titled “Use of Land” states as follows:
The Government (including FEMA and other entities listed above) are providing disaster relief to victims of Hurricane Rita [sic ] which occurred in August 2005. One type of disaster assistance is temporary housing for disaster assistance recipients. Use of the Property shall be for construction and establishment of temporary housing facilities for disaster assistance recipients and the construction of improvements (including, but not limited to utilities, roads or driveways, and trailer pads) as the Government determines necessary and/or expedient in connection with the establishment and operation of temporary housing facilities.
JX 31 (Lease Rider) ¶ 2.
The Lease contains a Restoration Clause, which reads, in pertinent part:
Alterations and Improvements. Any physical additions or improvements to the Premises made by the Government will become the property of Lessor. Lessor may require that the Government, at the end of the Term and at the Government’s expense, remove any physical additions and improvements, repair any alterations, and restore the premises to the condition existing at the lease commencement date, normal wear excepted.
Id. ¶ 6.
The Lease also requires the government to “comply with all Federal, State and local laws applicable to and enforceable against it as a tenant under this lease.” JX 31 (General Clauses)¶ 15.
C. The Condition of the Soil on the Leased Property at the Beginning of the Lease
The Leased Property, prior to clearing and logging, was covered with trees and a surfi-eial layer of silty soil, below which was a layer of stiff clay. See supra Part III. A. The precise depth of the clay layer at the beginning of the Lease is not known, which is demonstrated by the contradictory answers provided by Mr. Hudson and by plaintiffs three expert witnesses in geotechnical engineering. Mr. Hudson concluded that the clay layer began at approximately fifteen to twenty-four inches of depth but, because of poor sampling techniques and the limited number of samples collected, the soil borings provided only a rough indication of the depth at which the clay layer actually began. See supra Part III.A.2. One of Grand Acadian’s expert witnesses in geotechnical engineering, Mr. Jones, relying only on Mr. Hudson’s composited soil borings, estimated that the clay layer was located approximately two feet beneath the surface of the soil. See supra Part III.A3. Another of Grand Acadian’s expert witnesses in geotechnical engineering, Mr. Boseeker, after considering the CBK Report in light of United States Geological Survey (USGS) soil conservation maps, concluded that the clay layer was likely located between approximately two and three feet in depth. See infra Part III.D.5. Grand Acadi-an argues that test pits dug by its third expert witness in geotechnical engineering, Mr. Prochaska, “on the Grand Acadian side in the ‘buffer zone’ revealed soils in their undisturbed, natural state, with two to four feet ... of silty soil laying over a distinct clay base.” Pl.’s Br. 16 (citing Tr. 1225-27 (Prochaska)).43
*476Over the course of several months, prior to the commencement of the Lease term, Grand Acadian had cleared and logged the Leased Property, introducing an unknown quantity of additional organic material into the soil. See supra Part III.A.4 (describing clearing and logging by Grand Acadian’s contractors). The contractor hired to log Grand Acadian’s property dragged 1,085 tons of timber across Grand Acadian’s property with skidders to a staging area, where it de-limbed the trees and loaded them into trucks. See supra Part III.A.4. The skidders, which tend to sink into the soil more than tracked equipment due to their rubber tires, left ruts on the Leased Property and pushed organic material below the surface of the ground. See supra Part III.A.4.
Notwithstanding Mr. Jones’s trial testimony that the likelihood of organic matter being mixed into the soil is greater when trees are pushed down, pushed into a pile and burned during clearing operations, see supra Part III.A.3, AAA, the contractor that cleared Grand Acadian’s property, pushed trees down, pushed them into piles and burned them, see supra Part III.A.4. Mr. Jones testified that if trees are cut down before their stumps are pulled up, “they’re able to pull the stumps out and pull a lot of the root system with it.” Tr. 942:21-25 (Jones). AAA, however, cut the root systems of larger trees with a bulldozer and then pushed them down, see supra Part III.A.4, leaving the root systems in the soil. Hurricane Rita pushed down some of the large trees that had not been logged, see supra Part III.A.4, leaving additional roots in the soil. AAA filled stump holes by pushing soil from the surface of the Leased Property into the stump holes, which, according to Mr. Jones, is the “primar[yj” manner in which clearing operations mix organic material into the soil. See supra Part III.A.4.
The amount of organic material Grand Acadian’s clearing and logging operations mixed into the subsurface of the soil is not known. However, Grand Acadian’s development of the Non-Leased Property, in particular, the testimony of Mr. McConnaughhay that ninety-two truckloads of debris were removed from the Non-Leased Property after root raking and that additional debris was burned, indicates that a large quantity of organic material was at or beneath the surface of the soil of the Leased Property at the beginning of the Lease term. See supra Part III.A.5.a.
Moreover, the soil on the Leased Property drained slowly and two-thirds of the Leased Property was located in an area in that was 42% wetlands. See supra Part III.A.1. A wetlands determination request filled out by Grand Acadian’s engineering specialist, Mr. Mays, documented the presence of saturated soils in some areas beginning six inches below the surface and oxidized root channels at a depth of twelve inches below the surface. See supra Part III.A.1. These observations indicate that the soil beneath the surface could remain wet even when the surface was dry and that the vegetation had adapted to persistent wetness. See supra Part III.A.1. In some portions of the Leased Property, there was a feed lot smell and the precursors of algae development had begun to appear. See supra Part III.B.2.
In its natural state, Grand Acadian’s property sloped from west to east, and water drained from the Leased Property across surface of the Non-Leased Property into a bayou. See supra Part III.A5.b. When a strike team of the government’s contractors evaluated Grand Acadian’s property on September 20, 2005, see JS ¶¶ 11-12, and when representatives from the Corps evaluated Grand Acadian’s sixty-acre property on October 10, 2005, see JS 1! 17, this natural drainage had not yet been obstructed by Grand Acadian’s construction activity on the Non-Leased Property, see supra Part III.A5.b.
However, in November and December 2005, Grand Acadian built the Center Road, which blocked drainage from the Leased Property. See supra Part III.A.5.b. The effect Grand Acadian’s construction of the Center Road had on the Leased Property became clear when rain fell on December 15, 2005 — soon after the Lease was signed. See supra Part III.A.5.b. The rain collected on *477the Leased Property as perched standing water, much of which remained two weeks later, on December 29, 2005, when Fluor visited the Leased Property, see supra Part III.A.5.b, and three weeks later, on January 7, 2006, when Fluor began work, see infra Part III.D.l. As a result of the perched standing water, the silty layer of soil was “soft and mushy.” Tr. 3444:7-21 (Krielow).
D. The Government’s Construction Activities and Soil Sampling
1. Fluor’s Arrival, Establishment of Drainage and Completion of Clearing
“On December 7, 2005, the Government authorized Fluor to proceed with construction on Grand Acadian’s leased property,” JS ¶35, and “[o]n January 3, 2006 the local Calcasieu Parish Division of Planning and Development approved the Government’s application to develop [the Leased Property] for temporary housing,” JS ¶ 40.
On January 5, 2006 Fluor executed a subcontract with Dexter Honoré Construction, LLC (Honoré44) to “supply all supervision, labor, equipment, tools, materials, protective equipment and all items of expense” to develop the Leased Property. JX 81 (Fluor-Hon-ore Contract) 1, 3. Honoré agreed to complete construction of the planned 180-unit RV park “not later than [s]ixty days from the first day of mobilization.” Id. at 1.
Fluor and its subcontractors arrived at the Leased Property after lunch on January 7, 2006 and spent much of the remaining portion of the day offloading equipment, see Tr. 738:14-739:1, 741:18-22 (Rothkamm). Fluor then “immediately” began to construct temporary drainage ditches approximately eighteen inches deep to drain surface and subsurface water from the Leased Property.45 Tr. 1814:15-16, 1816:11-12 (Gourgues). Fluor used pumps to “dewater[ ]” the Leased Property, see id. at 1819:8-10 (“Every day we were there, we were ... dewatering [and] digging temporary ditches.”); cf. id. at 1831:22-1832:2 (“Dewatering is using a water pump to pump water out of the area that’s holding water into either a retention pond or into a temporary ditch. It is funneling the water away from the work.”). Fluor spread some of the wet soil on higher areas, see, e.g., JX 37 (Fluor Daily Reports46) 2477, in an attempt “[t]o try and dry the topsoil out,” Tr. 753:17-23 (Rothkamm).
At the same time that Fluor established and maintained temporary drainage, see Tr. 3421:20-3422:6 (Krielow), Fluor installed measures to prevent runoff of silt,47 cleared the remaining trees from the Leased Property and burned debris, see JX 37 (Fluor Daily Reports) passim; Tr. 744:2-757:10 (Roth-kamm) (explaining work documented on Fluor’s daily reports); JX 38 (Fluor Surveillance Reports48) 2000-01 (describing clearing of debris). Fluor dug up, piled and burned “[h]undreds” of stumps that had been left behind by Grand Acadian’s contractors.49 *478Tr. 1732:15-21 (Beck50).
On January 8, 2006 — the first full day of construction — Fluor encountered difficulties with the soil on the Leased Property. See JX 38 (Fluor Surveillance Reports) 2001 (stating, in an entry dated January 8, 2006, “The soil is wet in some area[s] at the back side of the property.... Area near the fire station [has] standing water. Approximate 50' x 70' area from the last rain about a week or so ago”); Tr. 1730:13-15 (Beck) (stating that, at the time that he began work, the Leased Property was wet and had standing water). The wettest part of the Leased Property was a low area located to the southwest of where the retention pond would later be built. See Tr. 1751:9-1752:1 (Beck); JX 75 (Dec. 29, 2006 Aerial Photos) 2070-71 (showing the location of the retention pond). On January 9, 2006 Fluor held a meeting to discuss the condition of the soil, which Fluor’s site manager, Mr. Rothkamm, described as containing “wet areas, mud, [and] low spots.” Tr. 749:8-23 (Rothkamm); see also JX 37 (Fluor Daily reports) 2479 (stating, in an entry dated January 9, 2006, “meeting @ 4:00 to discuss soil @ site”).
Defendant’s expert witness in construction practices and construction cost estimation, Mr. Krielow, explained that, while soil is wet, it is not possible to begin “earth work embankment operations” and work was limited to dewatering and clearing. Tr. 3534:6-20 (Krielow). Mr. Krielow explained that “[e]mbankment is a fill material that can either be placed in an area that has been excavated or above grade on a project for building a project up.” Id. at 3406:4-9. The replacement, described in the CBK Report, of silty material with clay beneath planned improvements can be described as building embankment. See id. at 3474:22-3475:3.
Mr. Kevin P. Gourgues, an employee of Group Contractors, the Fluor subcontractor responsible for “clearing and grubbing, installing roadways ... [and] digging a retention pond,” Tr. 1802:9-17 (Gourgues), informed Fluor that “we could not perform the work in the amount of time [allotted] ... because the ground was extremely wet at that time of the year and there was no way it was going to get dried out fast enough to build it in the allotted time,” id. at 1812:24-1813:3; cf. id. at 1812:2-8 (“The issue was ... it was too wet to do it in the timeframe provided, which was 60 days.”). Fluor decided to conduct soil borings to determine the extent of the problem. See JX 37 (Fluor Daily Reports) 2478; cf. infra Part III.D.2 (discussing the results of the soil borings).
After the meeting to discuss site conditions, Fluor began to construct the permanent drainage and erosion control structures that it had planned for the Leased Property. See JX 37 (Fluor Daily Reports) 2470-75. Fluor’s engineering drawings “provided for a drainage ditch to run north and south along the eastern boundary of the leased property [ (the East Ditch) ],” JS ¶ 26, “a drainage ditch to run east and west along the southern boundary of the leased property [ (the South Ditch) ],” JS ¶ 27, and “a retention pond to be located on the south-eastern portion of the leased property,” JS ¶ 28. “[T]he east ditch was to drain to the south ditch, which would drain to the bayou.” Tr. 772:18-20 (Roth-kamm). To reach the bayou — which abuts the southeast corner of Grand Acadian’s sixty-acre property, see JX 17 (Sept. 31, 2005 Aerial Photo) — the South Ditch continued across the southern edge of the Non-Leased Property, see Tr. 1833:16-1834:8 (Gourgues).
Fluor dug the East Ditch between January 11, 2006 and January 13, 2006. See JX 37 (Fluor Daily Reports) 2470-75. Fluor dug both the retention pond and the South Ditch between January 12, 2006 and January 15, 2006, see id. at 2466-73, and began work on a temporary road on January 12, 2006,51 see id. at 2473 (“Started east road[.]”); id. at 2469 (“Backfill along east roadway[.]”); id. at 2468 (“Building temporary site road[.]”).
*4792. The SEI Soil Boring Report
“On January 10-11, 2006, a representative of Site Engineering, Inc. (“SEI”) took 30 soil boring samples to a depth of six feet in a grid pattern evenly distributed across the entire leased property.” JS ¶43. To determine the depth of the soft, unstable soils, “a — inch diameter probe rod was ‘pushed’ into the soft soils to a depth of firm resistance .... Several probings were performed at each boring location and an average thickness recorded.” JX 44 (SEI Report) 2. “In general, very soft soils appeared to be present in the upper 2 to 4 feet of the site with an average thickness of about 3 feet.” Id.
The parties have stipulated, and the court adopts as a factual finding, the following:
SEI issued a preliminary report on January 11, 2006 and a final report [ (the SEI Report) ] on January 15, 2006. The purpose of SEI’s analysis was to determine the depth of soft, unstable soils within the area intended for construction and to provide recommendations with regard to options for remediation of the soft conditions. SEI determined that very soft, water saturated, silty soils appeared to be present in the upper two to four feet of the site with an average thickness of about three feet. SEI recommended the removal and replacement of the soft, unstable, water[-]saturated soils with compacted structural fill for construction.
JS ¶ 43; see generally JX 41 (Preliminary SEI Report); JX 44 (SEI Report). The SEI Report stated, “It is believed that the saturated nature of the near surface soils can be attributed to perched water.... Generally, perched water is slow to drain and may thereby significantly retard earthwork and construction activities.” JX 44 (SEI Report) 3 (internal quotation marks omitted).
SEI did not perform testing to determine the organic content or the clay content of the silty soil, see Tr. 3368:19-24 (Arnold); however, the SEI Report stated that “[t]he upper soils also contained a significant organic content,” JX 44 (SEI Report) 3. Asked at trial to explain his use of the word “significant,” Mr. Clint McDowell, a licensed engineer and the owner of SEI, Tr. 2805:3-18 (McDowell), stated as follows: “Visually obvious ... is a good way to put it. [The soil samples] contained root fragments and organic material,” id. at 2846:9-12. In testimony, Mr. McDowell stated that SEI subjected sixteen of the thirty samples to laboratory testing and that organic material was visible in ten52 of the sixteen samples. See id. at 2856:13-2857:1; cf. id. at 2847:10-13 (agreeing that the organic material was visible to “people on the ground ... and in the lab.”). In its description of eight of the soil borings with organic content, the SEI Report did not note the depth to which organic materials continued, indicating instead that organics were visible somewhere in the portion of the sample collected between zero and two feet of depth. See JX 44 (SEI Report) 6-9; Tr. 2854:6-13 (McDowell) (“Q Does this chart tell me whether those organics were found on top of the dirt or two feet down? A No. Q Okay. So somewhere between 0-2 feet? A Right. Q Could be zero? Could be two? A Correct.”). Describing the other three soil bor-ings with organic content, the SEI Report stated that in soil boring twenty-five, organics continued to twenty-eight inches of depth, in soil boring twenty-nine, organics continued to thirty inches of depth and that in soil boring thirty, organics continued to twenty-nine inches of depth. See JX 44 (SEI Report) 9. Owing to the size of the sampling device, any organic material appearing in SEI’s soil borings would be no larger than the three inches in diameter and eighteen to twenty-four inches in length.53 See Tr. 2863:2-14 (McDowell).
Although the parties mention only one method of remediation in their joint stipula*480tion — the removal and replacement of soil, see JS ¶43 — the SEI Report also described two other options that would render the soft, unstable soils usable but which were undesirable in the circumstances because they were either slow or expensive. The SEI Report stated that the wet soil could be dried “by disking54 and allowing the soils to dry naturally by exposure to the sun and wind.” JX 44 (SEI Report) 3 (footnote added). The SEI Report cautioned that allowing the soil to dry naturally would be “extremely weather dependent” and that “[n]aturally drying the soils will require extensive time and effort due to the thickness of the unstable soils encountered.” Id. The SEI Report stated that stabilizing the soil “with fly ash or Portland cement is generally a quicker alternative but [is] much more expensive than naturally drying the soils” and may interfere with excavation to install utilities and create footings for building construction. Id. Accordingly, the SEI Report concluded that, “[b]ased on our understanding of the time and economic constraints of this project, it appears that removal and replacement of the soft, unstable, saturated soils will produce the most economical remediation results.” Id. at 4.
Replacing such a large volume of soil would not necessarily have kept the project on schedule, as plaintiffs expert witness on geotechnical engineering, Mr. Prochaska, indicated in a portion of his deposition read into the record at trial:
Question: If you were told in early January of 2006 that you have 30 days to do all the earth work on this site, what would you have said?
Answer: I’d have laughed in their face.
Question: Why?
Answer: Because you’d have to go 24-hours a day and haul it all off and start from scratch and you still may not make it because you’ve got rains coming fairly regularly at that time of the year.
Tr. 1318:18-1319:11 (Prochaska) (acknowledging prior deposition testimony); see also id. at 1318:11-14 (“Q If you were told in early January 2006 that you had 30 days to do all the earth work on this site, what would you have said? A I would have said no.”).
3. The Order to Stop Work
In a proposal transmitted to Fluor on January 18, 2011, Mr. Robert H. Benton, Jr., Honore’s project manager, wrote that Hon-oré had “completed all ‘work-around’ activities on the jobsite and if we are unable to begin the soil remediation process, we will be forced to halt work until a decision is made.” PX 480 (E-mail from Honoré to Fluor) 6343, 6345. Mr. Benton wrote that “[w]e must receive a soil remediation resolution in a very short time or we will run out of work for our jobsite personnel.” Id. at 6345. Mr. Benton included six proposals for remediation of site conditions, stating that each could be completed in fourteen days. See id. at 6344. At trial, Mr. Benton testified that completing the remediation efforts he described in the proposal would have required Honoré to work twenty-four hours a day. See Tr. 3343:11-15 (Benton).
On January 21, 2006 Fluor notified the government that “we have a soil issue at the Gran[d] Acadian RV Park and we estimate the increased cost for the soils work should run about $2.8M.” JS ¶ 44 (quotation marks omitted). Mr. Benton testified that Fluor was referring to his fourth remediation proposal, which called for excavation of the top one and one-half feet of soil and replacement with structural fill. See Tr. 3344:3-16 (Benton).
On January 24, 2006 the government’s contracting officer’s technical representative (COTR) “notified Fluor that [the] site [would] need approval from environment[al] before proceeding, and Fluor suspended all work on [the Leased Property] except for de-watering and other water control work.” JS ¶ 45 (quotation marks omitted). “On February 2, 2006, the COTR directed Fluor to stop work on Grand Acadian’s leased property,” JS ¶ 48, “to give [FEMA] a chance to really analyze what the best way forward was going to be,” Tr. 1625:17-1626:4 (DeBlasio).
*481“On February 6, 2006, the Government decided to proceed with the Grand Acadian project notwithstanding Fluor’s estimate of additional costs associated with soil conditions on the leased property,” JS ¶ 50, and it directed Fluor to resume work, JS ¶ 51. Mr. DeBlasio, the housing officer for FEMA’s joint field office in Baton Rouge, Louisiana, made the decision to proceed with the project, Tr. 1633:1-10 (DeBlasio), and testified that he did so because he “felt that the site still needed to be built,” id. at 1633:11-14. Removing and replacing soil “seemed like it was the only way that the contractors were going to get any traction ... in getting this construction moving. Time was of the essence and the longer it took for us to build the site, the more likely that we weren’t going to have anybody to put in there once we built it-” Id. at 1624:17-1625:5.
FEMA evaluated the supply of temporary housing and the demand for additional temporary housing on a daily basis. Id. at 1628:15-22. Soon after authorizing construction to continue, Mr. DeBlasio reconsidered his decision in light of the then substantially decreasing demand for temporary housing. Mr. DeBlasio testified that, “once November hit, following Thanksgiving, there was an obvious and dramatic dropoff in the number of units I could install per day and the overall requirements for housing units in general.” Id. at 1615:9-13. Thereafter, “[ajfter the Christmas and New Year’s holidays, the trend was definitely on a major downward flow.” Id. at 1615:16-17. Demand for temporary housing “just dropped off tremendously from the holiday season on.... [Ujtilities were coming up, and people were finding their own means of safe and habitable housing.” Id. at 1628:1-14.
On February 9, 2006 the government instructed Fluor to place the Grand Acadian project on hold. JS ¶ 54. On February 11, 2006 the government decided to cancel the Grand Acadian project and directed Fluor to stop work. See JS ¶¶ 56-57. On February 15, 2006 the government sent Grand Acadian a notice of Lease termination effective December 6, 2006. JS ¶ 59. The government’s notice of termination stated that “[pjrior to the effective date of lease termination, the Government will clean the land, finish grading as necessary and seed the land to prevent erosion.” JX 51 (Notice of Termination).
4. Soil Replacement Cost Estimate by Mi’. Lowery
In April 2006 Grand Acadian retained Lan-con Engineers to develop a cost estimate to perform soil replacement at the Leased Property. See Tr. 2928:2-9 (Lowery). Mr. John Lowery, who is employed by Laneon Engineers as a senior project engineer, see id. at 2927:25-2928:1, provided two cost estimates to Grand Acadian, see JX 55 (First Laneon Report); JX 58 (Second Laneon Report).
The First Laneon Report, dated April 27, 2006, provided a cost estimate to undercut the East Ditch, the South Ditch and the retention pond by one foot and fill them with compacted material; to remove the uppermost four feet of soil from the remaining portion of the Leased Property and replace it with compacted material; and to replace 150 “trees originally planned to remain in [the] facility.” JX 55 (First Laneon Report) 1-2. The total cost of these items and a contingency fee of 20% was $4,786,403. See id. at 2.
The Second Laneon Report, dated July 5, 2006, stated, “Per your direction at our meeting last week we have added several items to the original cost estimate for the project.” JX 58 (Second Laneon Report) 1. The items added to the cost estimate were “hydroseed-ing the property when the project is complete, dewatering during construction, and engineering and surveying fees associated with detailed design of the project as well as an allowance for field inspection.” Id. The Second Laneon Report stated that the “[a]d-dition of these items has raised our initial cost estimate to complete the original scope of work from 4.79 million dollars to 5.75 million dollars,” id., almost exactly the measure of damages that Grand Acadian had demanded in its First Certified Claim, see supra Part I.
The First and Second Laneon Reports provide estimates to perform soil replacement in a manner specified by Mr. MeConnaughhay. Neither is an independent investigation of soil conditions on the Leased Property or an *482assessment of the necessary measures to restore the Leased Property to its condition at the beginning of the Lease term. In a portion of his deposition read into the record at trial, Mr. Lowery stated that, before recommending “[i]n a stamped report or plans [that] ‘x’ amount of soil had to be removed,” he would request soil borings. Tr. 2931:9-20 (Lowery) (acknowledging prior deposition testimony). However, although Mr. Lowery performed a “visual inspection of the site and estimated [the] dimensions” of the East Ditch, the South Ditch and the retention pond, JX 55 (First Laneon Report) 1, Mr. Lowery received “no geotechnical data related to the property,” and performed no testing of his own, Tr. 2929:12-22 (Lowery). The Second Laneon Report added items to the cost estimate “[p]er [Mr. McConnaugh-hay’s] direction at our meeting.” JX 58 (Second Laneon Report) 1. The Second Laneon Report stated that “[t]hese items of work were developed based upon discussions with [Mr. McConnaughhay] in regard to [Mr. McConnaughhay’s] requirements for repair and restoring the property.” Id. Testimony made clear that Mr. Lowery had never “set foot at all in the Grand Acadian property before Grand Acadian retained Laneon,” Tr. 2929:9-11 (Lowery) and believed, incorrectly, that no work had been performed and no heavy equipment had been used on the Leased Property before December 2005, see id. at 2928:20-2929:8, when the Lease began, see supra Part III.B.3.
5. Restoration Analysis by Mr. Bosecker
After the government cancelled construction of the RV park it had planned for the Leased Property, FEMA retained Mr. David Anthony Bosecker, an engineer employed by the firm Freese & Nichols, Tr. 659:1-660:23, 664:16-665:1 (Bosecker), to evaluate whether the Leased Property required restoration,55 see id. at 675:2-16 (describing Mr. Bosecker’s conclusions).
In undisputed testimony, Mr. Bosecker described materially misleading statements that Mr. McConnaughhay made to Mr. Bo-secker and other Freese & Nichols employees about the construction activities that had taken place on Grand Acadian’s property. Mr. McConnaughhay represented that the Non-Leased Property “had been modified in the same manner as the leased property, up to the point of government involvement in December 2005.” Id. at 707:21-708:11. Because of this representation, Mr. Bosecker used the Non-Leased Property “as a reference point” as he determined the original site conditions and the scope of work necessary to restore the Leased Property to its pre-Lease condition. Id. at 712:13-713:1.
Because the Leased Property and the Non-Leased Property had not, in fact, been “modified in the same manner ... up to the point of government involvement,” id. at 707:21-708:11, the Non-Leased Property was not an appropriate reference point. Between November 2005 and December 2005, Grand Acadian had “cleaned all of the debris out of the soils [on the Non-Leased Property] so there would not be any organic matter.” JS ¶ 22. Grand Acadian piled and burned this debris and hauled away any debris that did not burn. See supra Part III.A5.a. Ninety-two truckloads of debris did not burn and were hauled away. See supra Part III.A5.a. Mr. McConnaughhay did not disclose to Freese & Nichols that this debris had been removed from the Non-Leased Property. See Tr. 713:2-15 (Bosecker). By contrast, the organic matter had not been removed from the soil of the Leased Property. See supra Parts III.A4, III.D. 1 (describing clearing and logging activities on the Leased Property).
Mr. Bosecker read the CBK Report and soil conservation maps published by USGS, see Tr. 669:17-24 (Bosecker); supra Part III.A3 (describing the CBK Report), which led him to expect that he would find silty soil *483to a depth of two or three feet, underlain by clay, Tr. 681:2-7 (Bosecker).
On or around May 18, 2006, see id. at 674:10-12, Mr. Bosecker “walked around the site two or three times to look at the ... soil conditions of the site,” and then “dug six shallow test pits to look at the ... subsurface soils,” id. at 669:3-12. In the test pits, Mr. Bosecker found subsurface soil conditions different than the CBK Report led him to expect. See id. at 669:25-670:5. In most of the test pits, Mr. Bosecker found organic material and “some clay” mixed into the silt. Id. at 674:19-675:1. Mr. Bosecker concluded “that the top two to three feet of soils had been thoroughly mixed with brush and debris and some charred remains from the brush, as well.” Id. at 674:13-18.
Based upon the information that he had at the time, Mr. Bosecker concluded “that the site in its original condition ... was in a suitable condition for use as an RV park if normal earthwork operations had been taken.” Id. at 709:24-710:3. Mr. Bosecker informed the government “that the soils [had] been mixed thoroughly ... as a result of FEMA activities,” id. at 687:14-16, and that the Leased Property was “not suitable for development as a mobile home park,” id. at 675:2-8.
Mr. Bosecker concluded that “the biggest issue was” the presence of vegetative debris, which, when it decomposes, can create “soft spots,” or cause pavement or structures built on top of it to “fail.” Id. at 687:17-688:2. Mr. Bosecker testified that, “to build a substantial structure on that property and use the entire property,” he “would recommend that the top two to three feet beneath any structures or pavement be replaced with clean fill.” Id. at 691:7-19.
At the time that Mr. Bosecker developed his initial recommendation, he believed that the information at his disposal was sufficient to develop an opinion regarding subsurface conditions at the beginning of the Lease term. See id. at 684:11-20, 686:4-11. However, after meeting with “some of the personnel that were involved with the project” and receiving letters from others, Mr. Bosecker reached a different conclusion. Id. at 715:9-15.
Mr. Bosecker agreed with the characterization of counsel for defendant that, in light of “additional information,” “there was not, in fact, a reasonable degree of scientific certainty concerning the original site conditions,” including the “extent of mixing of organic debris prior to FEMA’s involvement in December 2005.” Id. at 698:12-700:14. Mr. Bosecker agreed that, because he could not determine the original site condition, he “can no longer stand by” his May 2006 opinions regarding site restoration. Id. at 699:7-22.
Nor is Mr. Boseeker’s conclusion that soil replacement would be necessary “to get [the Leased Property] to developable conditions,” id. at 722:13-723:15, authoritative. Mr. Bo-secker did not describe where he had dug test pits or whether they were clustered in one part of the property. Cf. supra Part III.A.2 (discussing flaws in Mr. Hudson’s soil sampling before the Lease); infra Part III. D.7 (discussing flaws in Mr. Hudson’s soil sampling after the government’s construction efforts). Mr. Bosecker has no experience in working in southwest Louisiana and is unfamiliar with “the degree of mixed soil types occurring naturally.” Tr. 699:23-700:9 (Bo-secker). Mr. Bosecker performed no testing to determine the organic content or the clay content of the soil. Tr. 3369:3-7 (Arnold); see also Tr. 700:15-18 (Bosecker) (agreeing that he did not “undertake to determine the percentage of organic content in the soil by using any scientific measure”).
Mr. Bosecker did not state how many of his test pits did not contain organic material, see Tr. 674:19-675:1 (Bosecker) (stating only that he found organic material in “most” of the test pits), or whether he found the amount of organic material in every test pit in which he found organic material to be great enough to interfere with the use of the silt in development. Neither did Mr. Bo-secker describe the amount of organic material that he observed below sixteen inches of depth, cf. supra Part III.A.3 (describing Mr. Jones’s recommendation in the CBK Report that only silt deeper than sixteen inches below the surface be used because of the organic content of soil closer to the surface), state that the amount of organic material deeper *484than sixteen inches would interfere with the use of the silt in development, or state that the organic material below sixteen inches of depth could not be removed using a root rake.
Mr. Boseeker’s testimony does not persuade the court that restoration is required to return the soil on the Leased Property from its post-Lease condition to its pre-Lease condition or that the Leased Property could not be developed after removing organic materials from the soil in a manner similar to the manner by which organic materials were removed from the soil on the Non-Leased Property. See supra Part III.A.5.a.
6. Fluor’s Stormwater Remediation
Before beginning construction at a site in Louisiana larger than five acres, a developer must submit a stormwater pollution prevention plan to the Louisiana Department of Environmental Quality (LDEQ) and secure a stormwater discharge permit (stormwater permit).56 See Tr. 3840:4-20 (Berg). As a condition for termination of the government’s stormwater permit, at least 70% of the surface of the construction site was required to be covered with grass or other ground cover to prevent erosion. See id. at 3860:7-3861:9.
In August and September 2006 Fluor returned to the Leased Property to bring the stormwater controls into compliance with the stormwater permit, activities described at trial as “remediation,” see Tr. 800:1-802:16 (Wilson), and performed by P2S, a subsidiary of Fluor, see Tr. 3859:13-23 (Berg).
The remediation activities of P2S were described by Mr. Lamar Dousay, a foreman on Leased Property. See Tr. 2890:24-2891:7 (Dousay). When P2S arrived, drainage ditches were holding water and water on the Leased Property was not draining. Tr. 2884:6-18 (Cloud57). P2S filled in the portion of the South Ditch that was on the Leased Property, but did not fill in the East Ditch, the retention pond or the portion of the South Ditch that was on the Non-Leased Property. See JS ¶¶63, 66-67. P2S removed the silt fences and hay bales, see Tr. 2900:4-8 (Dousay), and the mud from the bottom of the portion of the South Ditch that it filled, see id. at 2894:8-19; JX 63 (Sept. 2006 Photos) 1442. P2S placed dry dirt, see Tr. 2893:9-24 (Dousay); JX 63 (Sept. 2006 Photos) 1389, in layers — also called lifts— fifteen inches thick, compacting each layer before placing the next layer, see Tr. 2875:14-20 (Cloud); JX 63 (Sept. 2006 Photos) 1483-89 (showing a layer of dirt being placed into the South Ditch on top of a smooth, compacted layer).
P2S also leveled the areas at the northern and southern ends of the Leased Property— including the area where the South Ditch was located on the Leased Property — and planted grass on the leveled areas. See Tr. 2900:4-9 (Dousay); JX 63 (Sept. 2006 Photos) 1596 (showing the southern end of the Leased Property, which had been leveled and covered with alternating sections of sod and erosion control blankets); Tr. 3907:24-3908:14 (Berg) (describing same).
As it performed remediation, P2S stacked in piles some of the larger “roots, tree trunks, stumps, limbs, branches [and] other debris” it encountered on the Leased Property. Tr. 2892:13-17 (Dousay); see also Tr. 3937:19-22 (Berg) (agreeing that P2S piled the debris it encountered); JX 66 (Oct. 2006 Photos) 1765,1802,1916-17 (showing piles of debris). As a result, there was substantially less debris on the surface of the Leased Property when P2S finished its work. See Tr. 3907:15-23, 3927:9-16 (Berg).
Aerial photographs taken on December 29, 2006 — shortly after the end of the Lease— show green areas where P2S had planted grass at the northern and southern ends of the Leased Property and along a narrow strip circling the retention pond and continuing north to Mosswood Road along the east*485ern edge of the Leased Property. See JX 75 (Dee. 29, 2006 Aerial Photos) 2069-75.
Except for stacking debris, P2S performed no work on the Leased Property other than the remediation required by the stormwater permit. See Tr. 808:4-7 (Wilson); Tr. 3940:16-25 (Berg). Ms. Heather Berg, an environmental scientist employed by TRS, also a subsidiary of Fluor, see Tr. 3838:11-18 (Berg), ensured that P2S complied with the stormwater pollution prevention plan and advised P2S on the process of controlling erosion on the Leased Property, see id. at 3853:9-23. Ms. Berg is not a construction expert. Id. at 3857:8. To ensure compliance with the stormwater pollution prevention plan, Ms. Berg verified that no erosion was taking place; filled out reports on a weekly basis and after rainfall greater than one-half inch; and advised P2S on the location, maintenance and replacement of erosion controls such as silt fences and straw bales.58 See id. at 3853:9-18. To attain the 70% groundcover required by LDEQ, P2S planted grass, using a combination of sod, erosion control blankets59 and grass seed covered with straw. See id. at 3878:25-3879:6.
On November 8, 2006 Fluor requested termination of the government’s stormwater permit, see id. at 3920:21-24; JX 72 (Notice of Termination), a request that the Louisiana Department of Environmental Quality granted by letter dated December 18, 2006, see Tr. 3925:15-22 (Berg); JX 76 (Letter Terminating Permit).
7. The Second Summit Soil Boring Report
On October 5, 2006, after Grand Acadian filed its certified claims with the government, see supra Part I, Mr. Hudson provided Grand Acadian with a soil boring report (the Second Summit Report), see PX 52 (Second Summit Report) 1, which purports to determine how soil conditions had changed on the Leased Property since the First Summit Report, see Tr. 3224:20-3225:1 (Hudson). Mr. Hudson provided the Second Summit Report, like the First Summit Report, at no charge, as a favor to Mr. McConnaughhay. See id. at 3243:20-3244:6.
The Second Summit Report contains a one-page narrative section and a description of the material found in each of six soil borings. See PX 52 (Second Summit Report) 1-10. The description of each soil boring was based on visual classification rather than laboratory analysis. See Tr. 3369:15-20 (Arnold). The Second Summit Report describes the first and second soil borings as “topsoil fill w/ roots and debris” to depths of 4 feet and 3.5 feet, respectively. See PX 52 (Second Summit Report) 5-6. The first soil boring contained “[s]tiff, natural tan & light gray clay ... at 4 feet.” Id. at 5. The second soil boring was terminated due to waning daylight before Mr. Hudson believed that he had reached the clay layer. See id. at 6.
The third soil boring contained “[t]opsoil fill w/ roots and debris to a depth of 2.0 feet,” where the sample “[t]ransition[ed] to dark gray silty clay.” Id. at 7. The fourth soil boring contained “[t]opsoil fill w/ roots and debris to a depth of 1.5 feet,” the depth at which it “terminated ... due to [a] eave-in.” Id. at 8.
Mr. Hudson testified that two of the soil borings (the fifth and sixth soil borings) were located in areas that he believed were relatively undisturbed by construction activities. See Tr. 3226:13-3227:7 (Hudson). One of these soil borings contained “[c]lean topsoil to a[ jdepth of 18 [inches],” where the sample “[t]ransition[ed] to stiff gray & tan silty clay.” PX 52 (Second Summit Report) 9. The other contained “[c]lean topsoil to a[]depth of 18 [inches]” and “[s]tiff natural tan & gray clay @ 18 [inches].” Id. at 10. Mr. Hudson wrote that the results of the fifth and six soil borings were “consistent with the original hand borings I performed prior to the beginning of the [p]ark project when the site was still wooded.” Id. at 1.
*486Mr. Hudson wrote that “[t]he surface is crusted over (dry/dessicated) topsoil and shows heavy deflection under pick-up truck weight,” and that “the conditions worsen further south.” Id. Based upon his observations, Mr. Hudson concluded, “This is indicative of a very poor attempt to recondition this site.” Id. Mr. Hudson stated that the Leased Property could require “2 to 5 + feet of excavation.” Id.
The court finds unpersuasive Mr. Hudson’s assumption that any change in soil conditions between the First Summit Report and the Second Summit Report can be attributed to the government’s activities. See, e.g., Tr. 3225:10-15 (Hudson) (describing the two areas sampled for the Second Summit Report as areas disturbed by Fluor and “background” areas not disturbed by Fluor). Mr. Jones, plaintiffs expert witness in geotechnical engineering, stated in the CBK Report that clearing operations could introduce a “significant amount of organic matter,” rendering the silty soil unsuitable for use as soil cement. JX 10 (CBK Report) 4. Mr. Hudson did not collect soil borings to examine the amount of organic material mixed into the soil during the several months that Grand Acadian’s contractors, Kinder Timber and AAA, spent clearing and logging Grand Aca-dian’s sixty-acre property. See JS H 8 (“Between July 2005 and January 9, 2006, no soil borings were taken from Grand Acadian’s 60-acre property.”); cf. supra Part III.A.4 (describing logging and clearing by Grand Acadian’s contractors); JS ¶7 (stating that AAA conducted clearing operations from late July 2005 through approximately October 7, 2005). Mr. Hudson did not observe any of the work that took place on the Leased Property, as he agreed in a portion of his deposition read into the record at trial:
Question: Did you observe any work being done on the west side of the site ever? Answer: No, not in specific, actually observing it. I may have seen something going on over there, but I didn’t pay any attention. I mean, I was out there one day watching them do a bunch of grubbing or clearing or whatever.
Tr. 3267:4-18 (Hudson) (acknowledging prior deposition testimony). Mr. Hudson did not know what work the government’s contractors had performed on the Leased Property, see id. at 3266:18-21, and did not describe speaking to the government’s contractors or anyone other than Mr. McConnaughhay about the soil conditions that existed when the government’s contractors arrived. Therefore, Mr. Hudson could not have known what portion of any change in soil conditions was attributable to the government’s contractors and what portion of any change was attributable to clearing and logging by Grand Acadian’s contractors before the beginning of the Lease.
The court also finds unpersuasive Mr. Hudson’s conclusions about the change in soil conditions on the Leased Property. Describing the soil borings, Mr. Hudson wrote that there was “continued cave-in at the 18 inch depth.” PX 52 (Second Summit Report) 1; see also Tr. 3228:7-10 (Hudson) (“[W]e would advance the augur and try to take a sample, and the holes would cave in due to water conditions. The site was holding water at 18 inches_”). In uncontradicted testimony, defendant’s expert witness in geotechnical engineering, Mr. Arnold, explained that when there are cave-ins during the collection of a soil boring, the soil boring cannot be considered a reliable source of information about the materials present and the depths at which they occur:
[The results] can totally mislead you, and therefore the results would be viewed as utterly inaccurate. That’s called fall-in and once it caves in, it has to go somewhere, and that is usually to the bottom of your hole.
And if you sample through that, you may confuse it with the material that fell in at that depth.... That would be called a form of cross-contamination of a sample.
The material up in the upper stratum might wind up in the lower stratum, such that a person would interpret that to mean that the upper stratum was much deeper than it actually was.
Tr. 3373:10-3374:2 (Arnold).
Mr. Hudson appeared to concede the insufficiency of his soil borings in the Second *487Summit Report, writing, “Due to the saturated condition of the upper 18 inches of fill and the necessity to ease the hole, a visual review of the site conditions by all parties concerned should be conducted and test pits performed with a track-hoe.” PX 52 (Second Summit Report) 1; see also Tr. 3234:13-19 (Hudson) (“Q Mr. Hudson, did you recommend that pits actually be dug? A Yes, I did. Q Why? A To determine the depth of disturbed soil conditions. I couldn’t do it with the augur bo[ring] rig that I had.”).
Although geotechnical engineers develop boring plans to guide the collection of soil borings, Tr. 913:24-914:3 (Jones), the engineer hired by Grand Acadian, Mr. Jones, did not design a boring plan to guide drilling, id. at 914:4-6, and Mr. Hudson “had no role in the selection” of the boring locations, Tr. 3261:21-24 (Hudson). In the ease of Mr. Hudson’s boring locations, Mr. McConnaugh-hay directed Mr. Hudson where to collect the samples.60 See Tr. 448:2-16 (McConnaugh-hay). Mr. McConnaughhay has been shown to have made materially misleading statements about the comparative conditions of the Leased Property and the Non-Leased Property to Mr. Boseeker, the engineer retained by FEMA after the government can-celled construction and who testified at trial as plaintiffs expert witness in geotechnical engineering. See supra Part III.D.5. No evidence was presented that the boring locations were distributed at regular intervals.61 Therefore, the fact that Mr. Hudson’s soil boring locations were chosen by Mr. McCon-naughhay rather than by Mr. Hudson or, better, by a geotechnical or construction engineer, significantly undermines their exemplary value. Samples collected in burn piles or debris piles, see infra Part III.D.8.a (describing two test pits that were excavated, at Mr. MeConnaughhay’s direction, at a burn pile and a pile of stumps), or collected from structural features such as drainage ditches, would not be representative of general soil conditions at the Leased Property, see Tr. 3551:15-3552:8 (Krielow) (stating that the clay layer may have been penetrated by construction equipment “in the area of [the] retention pond and ditches,” and “where[ever] there w[ere] burn piles”). Mr. Hudson appeared to believe that he collected samples in areas that had been excavated and backfilled by Fluor, see Tr. 3225:10-15, 3232:9-14 (Hudson), from which the court infers that the locations chosen by Mr. McConnaughhay may have included temporary drainage ditches filled during the grading process, the northernmost section of the East Ditch, the road that Fluor began to build, or burn piles, see supra Parts III.D.l, III.D.6 (describing Fluor’s construction activities and stormwater remediation).
And, significantly, Mr. Hudson collected all of his soil borings within 100 feet of one another, which Mr. Hudson agreed represents “a very small portion of the property.” Tr. 3263:16-3264:9 (Hudson); see also PX 52 (Second Summit Report) 1 (“These sample locations represent a very small portion of the site.”); of. JX 4 (Wetlands Determination) 2 (describing the dimensions of Grand Acadian’s sixty-acre property as approximately 1,325 feet from east to west and 1,975 feet from north to south). Asked to circle on an aerial photograph of the Leased Property the area where the borings were collected, Mr. Hudson circled an area at the northernmost edge of the Leased Property, where the ground had been leveled and planted with grass by P2S. See JX 75A (Aerial Photo Marked by Mr. Hudson); Tr. 3285:19-3289:19 (Hudson); cf. supra Part III.D.6 *488(discussing an area at the north end of the property leveled and planted with grass by P2S).
The evidence does not support Mr. Hudson’s assumption that the condition of the northernmost section of the Leased Property would have been consistent with the condition of the rest of the Leased Property. In addition to leveling and planting grass in this area, swpra Part III.D.6, Kinder Timber, the company retained by Grand Acadian to log Grand Acadian’s property, created a loading area on the northern end of Grand Acadian’s property, where it positioned its equipment and where it dragged, de-limbed and loaded into trucks the 1,085 tons of timber it removed, see supra Part III.A.4. At least one of Fluor’s subcontractors, Goodrich Equipment, created a staging area for its equipment on the northern end of the Leased Property. See Tr. 1728:11-1730:5 (Beck). Mr. Hudson did not conduct soil borings further south to verify that the soil borings he did collect were consistent with the rest of the Leased Property.62 See JX 75A (Aerial Photo marked by Mr. Hudson).
When studying the soil conditions on Grand Acadian’s sixty-acre property before construction began, Mr. Hudson composited the results of fifteen to twenty soil borings. See supra Part III.A.2 (describing the First Summit Report). Defendant’s expert witness in geotechnical engineering, Mr. Arnold, testified that in his own engineering practice and in the practice of many of his peers, it would be typical to perform one soil boring per acre when assessing soil conditions, possibly conducting additional samples in areas of interest. See Tr. 3363:13-24 (Arnold). Plaintiffs expert witness in geotechnical engineering, Mr. Jones, testified that greater variation in subsurface conditions can occur when the soil has been disturbed. See 892:3-893:8, 924:13-20 (Jones). Here, where the subsurface would have been affected by a sequence of clearing, logging and construction, it appears to the court that more than one soil boring per acre would likely have been necessary to characterize properly the soil conditions.
The size of the Leased Property is 27.4 acres. JS ¶34. To prepare the Second Summit Report, however, Mr. Hudson collected only four soil borings from portions of the Leased Property affected by clearing and logging activities by Grand Acadian, as well as by construction,63 only three of which were deeper than eighteen inches. See PX 52 (Second Summit Report) 5-10. Of the three borings deeper than eighteen inches, one located “dark gray silty clay” at a depth of two feet, see id. at 7, a depth consistent with Mr. Hudson’s characterization of site conditions before construction began, see supra Part III.A.2. Mr. Hudson did not measure the organic content of the soil. See Tr. 3265:16-24 (Hudson).
Mr. Hudson failed to distinguish among changes in soil conditions which resulted from the government’s activities or from the clearing and logging performed by Grand Acadian. Furthermore, in light of the cave-ins that occurred during Mr. Hudson’s soil borings, the selection of boring locations by Mr. McConnaughhay rather than an engineer or other geotechnical personnel, the limited number of soil borings and the restricted area in which they were collected, as well as the failure to measure the organic content or the clay content of the soil, the court finds Mr. Hudson’s conclusion that, on October 5, 2006 the Leased Property was characterized by poor site conditions to a depth of two to *489five feet or more, see PX 52 (Second Summit Report) 1, to be unsupported.
8. Restoration Analysis by Mr. Prochaska
In 2008 plaintiffs expert witness in geo-technical engineering, Mr. Prochaska, visited the Leased Property three times. Mr. Pro-chaska viewed the Leased Property for the first time on February 18, 2008, observed the digging of test pits and a test trench on November 3, 2008 and observed the collection of soil borings on November 13, 2008. See Tr. 1219:23-1220:8,1281:3-8 (Prochaska). Defendant’s expert witness in geotechnical engineering, Mr. Arnold, was also present on November 3, 2008 and November 13, 2008. See Tr. 3379:1-4 (Arnold).
As with the locations where Mr. Hudson conducted his second set of soil borings, see supra Part III.D.7, the locations of the test pits and soil borings had already been staked when Mr. Prochaska arrived, see Tr. 1220:10-16 (Prochaska), from which the court infers that Mr. McConnaughhay — rather than an engineer or other geotechnical personnel — again chose the locations where sampling would be performed.
a. Test Pits and Trench
Eight test pits were dug on the Leased Property. See id. at 1303:7-10. Mr. Pro-chaska testified that the test pits “were scattered over the FEMA side of the site, starting near boring 8 and kind of came around to the north and then along the east side and then near the south side of the site,” id. at 1227:13-18, but no vicinity sketch or detailed description of the location of the test pits was provided to the court. A video recording of the digging of the test pits was played at trial. See Tr. 1228:1-7 (plaintiffs counsel); Tr. 1230:8-11 (colloquy between the court and plaintiffs counsel); PX 178 (Test Pit Video).
Two of the eight test pits, test pit four and test pit eight, cannot accurately be characterized as pits because they did not penetrate the surface of the soil. Mr. Prochaska agreed that “test pit number 4[was] several feet above the ground in a burn pile.” Tr. 1303:11-14 (Prochaska); see also id. at 1231:1 (“[Njumber 4 was in a burn pile for sure.”). Test pit eight “was not an actual pit.” Id. at 1345:13-17.
Mr. Arnold, defendant’s expert witness in geotechnical engineering, described the volume of organic material visible in the video of the six test pits that penetrated the surface of the soil:
What I saw in those test pits was very little material. I think I characterized it as hardly more than you could put in several wheelbarr[ows] and take off the site, and where there might have been a larger piece that was seen in some of the videos, that was typically at or near ground surface within the upper foot.
Tr. 3382:22-3383:3 (Arnold). As depicted in the video, the organic matter present in the test pits was sparse64 and was concentrated on and, apparently, near the surface of the soil. See PX 178 (Test Pit Video). In particular, so-called “test pit” eight was “just a big pile of stumps,” Tr. 1306:18-1307:12 (Pro-chaska) (acknowledging prior deposition testimony), which “tells you nothing” about subsurface conditions at the Leased Property, Tr. 3381:18-23 (Arnold).
The trench was approximately 200 feet long and two feet deep, and was located in the “northwest quadrant” of the Leased Property. Tr. 1284:8-1285:3 (Prochaska). The excavation of the trench is not shown in the video recording, see PX 178 (Test Pit Video), but several photographs of the trench were admitted into evidence, see PX 178 (Prochaska Photos65) passim. Mr. Prochas-ka testified that “some areas [of the trench] *490had some significant wood [and] other areas had little wood.” Tr. 1285:4-6 (Proehaska). Mr. Proehaska did not state whether any of the organic debris that he observed in the trench was at a depth greater than sixteen inches (the depth below which the CBK Report recommended collecting silty soil for use in soil cement). See supra Part III.A.3 (describing the recommendation of the CBK Report that approximately sixteen inches of soil be removed and used for non-struetural purposes). The photographs show pieces of wood at the surface of the ground, see PX 178 (Proehaska Photos) 0554, next to the trench, see id. at 0556-62, 0564, and in the bucket of an excavator, see id. at 0553, as well as wood that appears to have fallen into the trench, see id. at 0555. However, the court is unable to discern in the photographs — particularly in the absence of testimony of a witness specifically pointing it out — wood or other debris beneath the surface of the trench or at a depth greater than sixteen inches.
In portions of his deposition read into the record at trial, Mr. Proehaska agreed that the organic materials found in the test pits and the trench could be removed by root raking.66 See Tr. 1313:2-25 (Proehaska) (reading the following portion of Mr. Pro-ehaska’s deposition regarding the test pits: “And again, these materials that we just saw are of a size that you would expect to be able to remove in the root raking process? Answer: Yes, sir”); id. at 1315:11-25 (reading the following portion of Mr. Prochaska’s deposition regarding the trench: “Could those logs be root raked as part of the developing process? Answer: Yes”). Mr. Proehaska testified at trial that any organic material located deeper than the tines of the root rake could reach can be removed by treating the soil in lifts, see id. at 1343:9-14,1354:17-23, a process that the court concludes would be facilitated by the planned removal of the uppermost layer of soil for use in non-strue-tural areas, see supra Part III.A.3 (describing the CBK Report’s recommendation that approximately sixteen inches of soil be removed and used for nonstruetural purposes). There was no testimony that root raking of the Leased Property would be more difficult than the root raking performed on the Non-Leased Property. See generally supra Part III.A5.a (describing the root raking performed on the Non-Leased Property).
b. Soil Borings
Eight soil borings were collected67 on Grand Acadian’s sixty-acre property which, Mr. Proehaska agreed on direct examination, was insufficient “to test the soil condition.” Tr. 1220:10-19 (Proehaska). Asked whether eight soil borings was sufficient to compare the Leased Property and the Non-Leased Property, Mr. Proehaska testified that he “would like to have had more but eight— eight was what was set up.”68 Id. at 1220:17-1221:18.
Three soil borings were conducted on the Non-Leased Property (soil borings one through three) and five soil borings (soil borings four through eight) were conducted on the Leased Property, see id. at 1222:1-2, one of which (soil boring eight) was conducted in an undisturbed “buffer zone” on the *491western edge of the Leased Property, adjacent to a neighboring subdivision, see id. at 1225:16-22. Mr. Prochaska recorded the location of each soil boring with a global positioning system (GPS) and recorded the “general locations” in a boring plan, see id. at 1223:17-25, but neither the boring plan nor the GPS coordinates were provided to the court or described in detail at trial.
In soil borings four, five and eight, Mr. Prochaska did not note the presence of any organic debris. See id. at 1300:23-1301:4. In soil boring seven, Mr. Prochaska observed “a 1 [inch] diameter wood in the sample,” which the court understands to refer to a single piece of wood one inch in diameter. See id. at 1300:12-22. Mr. Prochaska did not state whether soil boring six contained organic material.
Notwithstanding the near absence of organic debris in the soil borings and the scarcity of organic debris below six inches of depth in the test pits, Mr. Prochaska testified, “We found various depths of disturbed soil where you had mixtures of the soil, along with wood debris, ash, logs at the varying depths, one ... was over three feet deep. Others [were] normally around two and a half to three feet.” Id. at 1226:13-19. Mr. Prochaska testified that “buried and burned debris” was present on the Leased Property. See id. at 1231:6. The foregoing testimony is inconsistent with the evidence of the soil borings, test pits, and trench described by Mr. Prochaska.
At trial, Mr. Prochaska testified that it is not possible to “develop the FEMA side of Grand Acadian’s property into an RV park today consistent with CBK’s recommendations.” Id. at 1326:6-9. Mr. Prochaska recommended that the uppermost two and one-half feet of soil at the Leased Property be removed and replaced. See id. at 1332:3-9, 1349:19-22. However, Mr. Prochaska testified differently in his deposition. Asked “Can I develop this — the FEMA side of this site into an RV park consistent with the CBK recommendations today?” Mr. Prochaska stated, “You can,” provided that construction is limited to dry portions of the year. Id. at 1326:10-1327:15 (acknowledging prior deposition testimony). In light of this unexplained contradiction in Mr. Proehaska’s testimony, the court discounts Mr. Prochaska’s trial testimony that the Leased Property cannot be developed consistent with the recommendations in the CBK Report.
IV. Disposition of Grand Acadian’s Claims
A. Grand Acadian’s Claim for Soil Replacement
1. Soil Replacement Evidence Overview
Plaintiff argues that “the Property was in a condition suitable for development, without bringing in materials from offsite, at the time of the commencement of the Lease.” Pl.’s Br. 7. Plaintiff contends that the government “altered the soil composition of the FEMA west half during the first days of construction.... Within a week the soil was rained. Co-mingled soil types and the extensive infusion of organic materials rendered it unusable.” Id. at 10.
Defendant responds that “[a]t the beginning of the lease in December 2005, the subsurface of the leased property was comprised of unstable wetlands and it contained unknown quantities of organic and clay content.” Def.’s Resp. 3. Defendant argues that “it is unknown whether the soils on the leased property in December 2005 actually could have been [used in construction].” Id. at 8. Defendant contends that the evidence does not support plaintiffs argument that Fluor “ ‘thoroughly mixed the soil types.’ ” Id. at 23 (quoting Pl.’s Br. 12, 20). Defendant argues that there is no evidence of additional organic material or clay in the soil at the end of the Lease term. See id. at 19-24. For the reasons below, the court finds that defendant is correct.
a. The Parties’ Arguments Regarding the Condition of the Leased Property at the Beginning of the Lease
Citing the First Summit Report and the CBK Report, plaintiff argues that at the beginning of the Lease term, “[b]oth Hudson and Jones confirmed that the existing soils on the Property were suitable for use in construction, without the need for bringing in soils from off site.” Pl.’s Resp. 1-2. Defen*492dant responds that “Mr. Hudson testified to his personal opinion that ‘the soils above the clay are suitable for cement or [fly ash] treatment for stabilization purposes,’ but on cross, examination he admitted that is ‘an engineering judgment’ beyond his expertise and he necessarily deferred to Mr. Jones of CBK, who is a qualified geotechnical engineer.” Def.’s Resp. 7 (quoting Tr. 3220:8-3221:12,3269:19-3270:17 (Hudson)).
Defendant correctly argues that, according to the testimony of plaintiffs own expert witnesses, further testing was required after clearing and logging operations to determine whether the silty soils on the Leased Property could be used for construction. See Def.’s Resp. 7-8. Defendant notes Mr. Jones’s testimony that “to make a determination of whether particular soil is suitable for use in soil cement requires the presence of ‘qualified geotechnical personnel ... to visually examine the materials and select the ones ... that are suitable for mixing’ as soil cement.” Id. at 7 (omissions in original) (quoting and citing Tr. 893:11-899:25 (Jones)). Defendant also points to Mr. Jones’s testimony that “ ‘[i]f you have a site that is heavily wooded and you clear it, you’re going to have roots and organic matter in the silty soils to some depth,’ and, ‘if that clearing results in a significant amount of organic matter, stirred into the silty soils, then they may not be usable for soil cement base construction; probably wouldn’t.’ ” Id. at 8 (alteration in original) (quoting Tr. 940:24-941:25 (Jones)). Mi’. Proehaska, another of plaintiffs expert witnesses in geotechnical engineering, also testified that testing was required to determine whether the organic content and grain size distribution of the silty soils were compatible with use as soil cement. See supra Part III.A.3; Def.’s Resp. 8. Defendant is correct that “no one conducted that testing” before the Lease began. Def.’s Resp. 8; see supra Parts III.A-B. What is certain is that the Leased Property had been an undeveloped, wooded site, see supra Part III.A, that it had been cleared and logged, see supra Part III.A.4, and that, as Mr. Jones testified, after clearing of a wooded property, “you’re going to have roots and organic matter in the silty soils to some depth,” Tr. 941:1-7 (Jones).
Plaintiff also argues that “the Property had been specifically selected and purchased for development as an RV Park.” Pl.’s Br. 2. Defendant is correct, however, that “Mr. McConnaughhay has no experience in geo-technical science or wetlands and he has never personally conducted any testing of soil conditions.” Def.’s Resp. 3 (citing Tr. 465:19-472:23 (McConnaughhay)). Grand Acadian’s selection of its sixty-acre property for use as an RV park does not support plaintiffs argument about the condition of the soils on the Leased Property at the beginning of the Lease.
Plaintiff argues that Fluor and “[government scientists” determined that the Leased Property was suitable for construction at the beginning of the Lease term. Pl.’s Resp. 4-7. Defendant is correct, however, that “[t]he parties have stipulated ... that Fluor conducted a site assessment in September 2005 ‘from looking at the surface,’ but Fluor ‘did not conduct any subsurface testing on Grand Acadian’s 60-acre property.’ ” Def.’s Resp. 5-6 (quoting JS ¶ 12). Defendant notes that “[t]here is no evidence that the Government or Fluor took any soil borings or analyzed the subsurface soil conditions prior to January 10, 2006, the fourth day of construction.” Id. at 6.
The “government scientists” whose testimony plaintiff cites are Dr. Jarboe and Ms. Kilner, see Pl.’s Resp. 4-5, both of whom were involved in environmental and regulatory compliance rather than construction, see Def.’s Resp. 4-5. Plaintiff argues that “Dr. Jarboe noted in his report and confirmed at trial that based upon his inspection[,] most of the preparatory work was complete, and only minimal effort would be required for the construction of FEMA[’s] RV park.” Pl.’s Br. 3-4 (citing Tr. 1134, 1158-60 (Jarboe); JX 18 (Trip Report)). Defendant is correct, however, that Dr. Jarboe is “a natural resource biologist with no expertise in geotech-nical matters.” Def.’s Resp. 4. “Dr. Jarboe testified ... that he only conducted a ‘cursory evaluation’ of soil conditions by walking on the surface of the site, his ‘assessment was not as an engineer,’ and he ‘doubt[ed] that he would have written that sentence’ in his re*493port if he had been assessing surface conditions on the west half of the Grand Acadian property in December 2005.” Id. (alteration and omission in original) (quoting and citing Tr. 1131:23-1133:5, 1142:23-1143:23, 1176:1-1177:4 (Jarboe)). Ms. Kilner’s role was to conduct environmental reviews, which she described as ensuring compliance with “a suite of environmental and historic preservation laws that get triggered with federal action.” See Tr. 1767:2-12 (Kilner).
Defendant correctly notes that, although “Ms. Kilner was not involved in conducting a site assessment, ... the unsuitability of the soil conditions during her November 20, 2005 visit was apparent given her ‘prior experience and the conditions of the site.’ ” Def.’s Resp. 5 (quoting and citing Tr. 1772:14-23, 1775:18-1776:13 (Kilner)). Ms. Kilner described this observation in the following testimony:
Q Did you have any other concerns about this project other than what we’ve talked about so far?
A Well, my impression from looking at the Corps of Engineers environmental evaluation and in particular the soil descriptions as far as drainage characteristics, followed by the brief site visit that I did there, my impression was that it probably [would] be a difficult site to develop in terms of dealing with the soil conditions and possibly expensive. But I also want to clarify that was not my role. That was just my impression based on prior experience and the conditions of the site.
Q What do you mean by you “thought it would be expensive”?
A Well, in order to set the mobile home pads and the infrastructure inside the site, you really need to have a stable platform to build on, and the soil conditions at the site basically were not conducive to just developing it as is, so there needed to be more site prep work and on 30 acres that can be a lot of work.
Tr. 1775:18-1776:13 (Kilner).
Plaintiff argues that “[Corps] Botanist, Gary Couret, testified that the entire 60 acre Property included some percentage of legally protected wetland, but nonetheless he recommended that a permit for the construction of an RY Park be granted and his recommendation was accepted.” Pl.’s Br. 2 (citing Tr. 1657, 1686, 1689 (Couret); JX 1 (July 25, 2004 Aerial Photo)). Defendant is correct, however, that “Mr. Couret conducted only a wetlands delineation assessment, not a suitability assessment of the soils for use as an RV Park.” Def.’s Resp. 3 (citing Tr. 1655:16-1662:11 (Couret); see also supra Part III.A.l (describing Grand Acadian’s 2004 applications for a wetland determination and a wetland permit)). “Grand Acadian’s proposed development would have destroyed the wetlands on the property, and the Corps merely granted regulatory permission for Grand Acadian to proceed with its development plans upon satisfying a wetlands mitigation requirement.” Id. (citing JS ¶ 6).
b. The Parties’ Arguments Regarding the Condition of the Leased Property at the End of the Lease
Plaintiff contends that “[t]he Government’s activities of incorporating debris down into the top 3-4 fee[t] of soil and mixing the soil types has made use of the soil on the PEMA half impossible.” Pl.’s Resp. 27. Defendant responds that there is no evidence that the government’s contractors increased the amount of clay or organic material in the soil. See Def.’s Resp. 19-24.
According to plaintiff, Mr. McDowell, the owner of SEI, “confirmed that as of January 11, 2006, the upper two (2) to four (4) feet of soil had ‘significant organic content’ that was plainly visible across a majority of the site and confirmed in laboratory tests.”69 Pl.’s Resp. 12 (citing Tr. 2843-47, 2856-57 (McDowell); JX 41 (SEI Preliminary Report); JX *49444 (SEI Report)). Soil borings conducted by Mr. McDowell “revealed the thorough mixing of the underlying clay base with the silty soil in every test location and at every depth between the surface and six feet deep.” Id. (citing Tr. 2852-53 (McDowell); JX 41 (SEI Preliminary Report); JX 44 (SEI Report)). “Based upon these results, Mr. McDowell concluded that the soil was not suitable for use in construction and reeommend[ed] that the cheapest means of restoration would be removal and replacement of the soil with structural fill.” Id. (citing JX 41 (SEI Preliminary Report); JX 44 (SEI Report)).
Plaintiff misinterprets both Mr. McDowell’s observations and his recommendations for remediation of soil conditions. The SEI Report described the surficial soils as containing “significant organic content,” but did not state that the organic material extended to a depth of two to four feet. See supra Part III.D.2. Of the sixteen soil borings that SEI subjected to laboratory testing, organic material was visible in eleven soil borings. See supra Part III.D.2. In eight of these soil borings, the organic material was described as being present to a depth between zero and two feet, but the SEI Report did not note the precise depth at which the organic material ended. See supra Part III.D.2 (quoting the following portion of Mr. McDowell’s testimony: “Q Does this chart tell me whether those organics were found on top of the dirt or two feet down? A No. Q Okay. So somewhere between 0-2 feet? A Right. Q Could be zero? Could be two? A Correct”). In the other three soil borings, organic material continued not to depths ranging from two to four feet, but to — at most — two and one-half feet. See supra Part III.D.2. Neither Mr. McDowell nor the SEI Report described laboratory testing of the volume of organic material or stated that the volume or depth of organic material was problematic.
Mr. McDowell did not, as plaintiff contends in briefing, observe the “thorough mixing of the underlying clay base with the silty soil in every test location and at every depth between the surface and six feet deep.” Pl.’s Resp. 12. Rather, Mr. McDowell testified that “[tjhere was probably clay in every sample” at every depth, including the surface. Tr. 2853:16-23 (McDowell). Mr. McDowell did not state that the presence of clay reflected mixing of the layers of soil, and plaintiffs own expert witness in geotechnical engineering, Mr. Prochaska, stated in his deposition that the silty soil, in its natural state, could contain different proportions of silt, clay and sand, and as a result, required testing before it was used for soil cement. See Tr. 1323:18-1324:18 (Prochaska) (acknowledging prior deposition testimony). Similarly, Mr. Jones, another of plaintiffs expert witnesses in geotechnical engineering, testified that — particularly at the intersection between silt and clay — there can be a small clay component in the silty layer, “usually in small, well[-]distributed pockets.” Tr. 927:16-25 (Jones).
Nor is the SEI Report evidence that silt had been mixed into the clay layer to a depth of six feet. The clay layer, in its undisturbed state, “is a combination of a little bit of silt, a little bit of sand and more clay.” Tr. 890:23-891:9 (Jones). Accordingly, the SEI Report stated that, beneath the “soft to very soft, saturated” silty soils, which were two to four feet deep, were “stiff to very stiff, moderately to highly plastic clay or sandy clay soils.” JX 44 (SEI Report) 3. Neither Mr. McDowell nor the SEI Report stated that additional silt had been mixed into the clay layer or that additional clay had been mixed into the silty layer, making either layer of soil inappropriate for use in construction.
The evidence presented at trial pertaining to construction practices established, consistent with the findings in the SEI Report, that, even under wet conditions, it is unlikely that the clay layer would become soft enough to mix significantly with the silt layer. See Tr. 3432:22-3433:10 (Krielow). Mr. Krielow, defendant’s expert witness in construction practices and construction cost estimation, explained that, although the silty layer becomes unstable when wet, the clay layer beneath it remains stable and able to support tracked equipment, noting, “[I]n fact, that’s how we build jobs.” Id.; cf. JX 44 (SEI Report) 3 (describing the clay layer beneath the “soft to very soft” silty soils as “stiff to very stiff’). The clay layer therefore remained largely undisturbed during Fluor’s *495construction activities.70 See Tr. 3519:7-12 (Krielow).
Mr. McDowell did not, as plaintiff suggests, conclude that, because of the mixing of soil layers and the presence of organic debris, “the soil was not suitable for use in construction [or] recommend that the cheapest means of restoration would be removal and replacement of the soil with structural fill.” Pl.’s Resp. 12. Rather, Mr. McDowell concluded in the SEI Report that removal and replacement of the soft, unstable soils would be the most rapid means of remediat-ing the wet, unstable, poorly drained conditions on the Leased Property given the time constraints on the government’s development activities. See supra Part III.D.2.
Plaintiff argues that Mr. Lowery, an employee of Lancon Engineers, a firm hired by Grand Acadian, “made his own independent investigation of the cost to restore the Property, and concluded it to be $4,786,403.00.” Pl.’s Br. 12. However, the cost estimates provided by Lancon Engineers evaluated the cost of performing soil replacement in a manner specified by Mr. MeConnaughhay and were not independent investigations of soil conditions on the Leased Property or assessments of the measures necessary to restore the Leased Property to its condition at the beginning of the Lease term. See supra Part III.D.4.
Plaintiff contends that Mr. Prochaska, plaintiffs expert witness in geotechnical engineering, “testified that the borings on the FEMA half showed various depths of disturbed, mixed soil types and organic debris, ash, and logs to depths of over three feet.” Pl.’s Br. 16-17. Plaintiff states that, “[during his visit to the site in November 2008, Mr. Prochaska observed organic materials and wood from the surface of the soil up to four feet (4') in the ground that had, in places, been pushed down by FEMA’s heavy equipment and in others, burned and buried by FEMA.” Id. at 17. The court has found unpersuasive, however, Mr. Prochaska’s trial testimony about soil conditions and the restoration required on the Leased Property. See supra Part III.D.8. Mr. Prochaska testified in his deposition that the organic material he observed on the Leased Property can be removed by root raking and that the Leased Property can still be developed consistent with the recommendations that Grand Acadi-an received in the CBK Report before the beginning of the Lease. See supra Part III.D.8.
Plaintiff argues that Mr. Hudson found soil “conditions to be very poor, reflecting a drastic difference from his pre-Lease testing.” Pl.’s Br. 15. Plaintiff contends that “[Mr.] Hudson confirmed that every boring in the disturbed locations revealed pieces of wood, roots, and organic debris, while the two samples in the undisturbed area matched his previous findings of no roots or debris.” Id. Plaintiff argues that, by collecting soil samples only in the northernmost area of the Leased Property, Mr. Hudson “intended to collect the most favorable samples possible in the area where FEMA had done the most work.” Pl.’s Br. 15. However, Mr. Hudson “had no role in the selection” of the location of his second set of soil borings, and the court has found that, in light of Mr. Hudson’s pre-existing relationship with Mr. MeCon-naughhay and in light of a number of failings in Mr. Hudson’s methodology, Mr. Hudson’s conclusions regarding the change in soil con*496ditions are unsupported by his observations. See supra Part III.D.7.
Plaintiff argues that Mr. Bosecker, the engineer retained by FEMA after the government cancelled construction who testified at trial as plaintiffs expert witness in geo-technical engineering, “inspected the site during the lease term, determined that the site was rendered unsuitable for development as a mobile home park, that the soils needed replacing, and that the unfavorable soil conditions were attributed to FEMA’s activities on the site.” Pl.’s Resp. 7. Mr. Bosecker, however, had been misled by Grand Acadi-an’s president, Mr. MeConnaughhay, about the work that had taken place on the Non-Leased Property, and upon receiving further information, Mr. Bosecker concluded that, because he could not determine the original site condition, he could “no longer stand by” his opinions regarding which restoration measures were necessary. See supra Part III.D.5.71
The soil evidence presented at trial does not support plaintiffs argument that restoration was required to return the soil to its condition at the beginning of the Lease term, normal wear excepted.
2. Additional Contentions by Plaintiff Do Not Support Soil Replacement.
Nor do several arguments by plaintiff not grounded in the large amount of soil evidence adduced at trial support plaintiffs claim for soil replacement.
a. The Government’s Cancellation of Construction Does Not Support Grand Acadian’s Claim for Soil Replacement
Plaintiff argues that the government’s cancellation of the construction of its RV park reflects the government’s belief that — contrary to the government’s litigation position — Fluor damaged the soil on the Leased Property. See Pl.’s Br. 11. Plaintiff contends that, “after the activities occurring within the first week of construction, Mr. Gourgues[, an employee of Group Contractors, one of Fluor’s subcontractors,] concluded that the soil was no longer usable and submitted a bid for $2,200,000.00 for restoration that included removal and replacement of thirty inches (30") of soil across the site.” Id. at 9. Plaintiff argues that, “[t]o a man, the experienced contractors who had inspected the site previously and agreed to perform the construction using the existing soil[] had changed their minds and were now advocating removal and replacement.” Id. at 10. Plaintiffs view is that “[o]nce the damage to the Property was reported and the additional cost was clear, FEMA issued a stop work order.” Id. at 11. Plaintiff quotes an e-mail sent by Ms. Ramona Van Cleve, a FEMA employee, which, plaintiff argues, “revealed that the true motivation for the cancellation was that ‘the cost per pad is too high.’ ” Id. (quoting PX 418 (Van Cleve E-mails) 0124). *497Defendant responds that “Ms. Van Cleve, ... who made the recommendation to cancel, and Steven DeBlasio, ... who made the decision, testified that the housing project actually was cancelled for lack of need and the project would have been built if the Government had needed it to house victims of the hurricanes.” Def.’s Resp. 15.
For two reasons, plaintiffs argument that the government’s cancellation of its planned construction of an RV park resulted from damage to the soil by Fluor is inconsistent with the evidence presented at trial. First, Mr. DeBlasio, the FEMA official who made the decision to cancel construction, see Tr. 1633:21-25 (DeBlasio), testified that the “primary” basis for his decision to cancel the project “was that the need for housing had dwindled as all this time ha[d] elapsed,” id. at 1632:9-12; see also supra Part III.B.l (describing Mr. DeBlasio’s testimony that “[o]ne of the risks” of building group sites is that they will become unnecessary before construction is completed); supra Part III. D.3 (describing the decline in demand for temporary housing while construction was delayed by wet soil conditions). In testimony that the court finds both credible and persuasive, Mr. DeBlasio stated that if the RV pads being built on the Leased Property were needed, they would have been completed despite the increased cost. See Tr. 1647:3-5 (DeBlasio) (“Sir, again, it’s not a matter of cost. If I had 150 families living under a bridge or in cars, this site would have been built.”); id. at 1625:7-13 (“[C]ost is always a consideration, but the primary goal is to house families, and looking at what we spent on that event, I mean, cost was not going to be a factor as far as the decision-making.”).
Mr. DeBlasio’s testimony is consistent with Mr. DeBlasio’s actions. Mr. DeBlasio initially approved the soil remediation work despite the increased cost because “it seemed like it was the only way that the contractors were going to get any traction so to speak in getting this construction moving” and because “[tjime was of the essence.” Id. at 1624:10-1625:6. Asked whether his budget was “limited in terms of ability to make changes of this nature,” Mr. DeBlasio replied, “No, sir, it was not.” Id. at 1625:14-16. Mr. DeBlasio testified that he viewed the cost overrun as a “cost of doing business” because “[y]ou never know what you’re going to find when you start tearing into land.” Id. at 1633:11-20. It was not until FEMA determined that it no longer needed the RV pads that it cancelled construction. See supra Part III.D.3.
Second, the problematic soil conditions that Fluor identified as requiring remediation were not the mixing of organics into the subsurface or the mixing of the clay and silt layers, the conditions that plaintiff contends that defendant created, see supra Part IV. A.l.b, but perched, standing water and wet, unstable soil — conditions that already existed when Fluor arrived to begin work, see supra Part III.A.1 (describing Grand Acadian’s application for a wetlands determination and a permit under the Clean Water Act before beginning the clearing and logging of its sixty-acre property); supra Part III.A5.b (describing Grand Acadian’s obstruction of drainage from the Leased Property); supra Part III.C (describing the condition of the Leased Property at the beginning of the Lease); supra Part III.D.1-2 (describing the difficulties that Fluor encountered with the soil on the Leased Property and the results of soil borings).
After discovering that the soil on the Leased Property was wet and unstable, Fluor hired SEI to investigate. See supra Part III.D.2. In fact, the parties have stipulated that “[t]he purpose of SEI’s analysis was to determine the depth of soft, unstable soils within the area intended for construction and to provide recommendations with regard to options for remediation of the soft conditions.” JS ¶ 43; cf. JX 44 (SEI Report) 2 (“We understand that the purpose of this exploration was to determine the depth of soft, unstable soils within the area intended for construction and to provide recommendations ... for remediation of the soft conditions.”). SEI provided no measurement of the amount of organic material or clay in the silty soil and did not state that the volume of either required remediation. Accordingly, SEI’s report made no recommendations for the remediation of excess organic material or *498clay in the silty soil.72 SEI did recommend removal and replacement of the wet, unstable soil — instead of disking the soil and allowing it to dry naturally — not because of the volume of organic material or clay in the silt layer but because allowing the soil to dry naturally was “extremely weather dependent” and would “require extensive time and effort due to the thickness of the unstable soils encountered.” JX 44 (SEI Report) 3; see also Tr. 1623:17-25 (DeBlasio) (stating that the purpose of excavation was “to get to a good solid platform there upon which we could start to build”).
Both SEI and the contractors who worked on construction of the RV park on the Leased Property believed that the soil on the Leased Property could be used for construction that proceeds on an ordinary timeline. See, e.g., Tr. 1831:9-15 (Gourgues) (“Q Could the soil have been worked with after it dried out? A Yes.... It could have been worked with in the condition it was [when] wet. It would have just taken longer.”); Tr. 1740:25-1741:1 (Beck) (“[I]t was nothing that some time couldn’t fix for the most part.”); JX 44 (SEI Report) 4 (recommending replacement of soil because it was faster, but also stating that, “[i]f desirable, additional recommendations for stabilization or natural drying can be provided at your request”).
The problem that Fluor sought to remediate by removing and replacing soil was not, therefore, the amount of organic material or clay in the silty soil but the wet, unstable conditions — conditions that already existed when Fluor arrived.73 The recommendation by Mr. Gourgues or any of the other contractors who worked on the Leased Property that the silty soils be removed and replaced does not reflect an acknowledgment that Fluor had damaged the soil but rather reflects a belief that the silty soil could not be dried quickly enough to meet the need for temporary housing for disaster assistance recipients. See supra Part III.B.l (describing the urgency with which temporary housing was needed after Hurricanes Katrina and Rita); supra Part III.D.2 (describing the level of difficulty of accomplishing the soil work on the Leased Property in the thirty days allotted); supra Part III.D.3 (describing the decline in demand for temporary housing while construction was delayed on the Leased Property).
b. Comparison to Construction Activities on the Non-Leased Property Does Not Support Grand Acadian’s Claim for Soil Replacement
Plaintiff contends that the “strongest evidence” that the government damaged the soil on the Leased Property is that the government found the soil on the Leased Property unsuitable soon after it began construction, whereas “Grand Acadian, who began working with the same native soils, was able to complete the dirt work phase of construction without incident by following the recommendations of its soil experts.” Pl.’s Resp. 16 (citing Tr. 426:4-25 (McConnaugh-hay)).
In the relevant portions of the testimony cited by plaintiff, Mr. McConnaughhay described as follows Grand Acadian’s soil work on the Non-Leased Property:
I’ll speak based on my experience.... We treated both soils as per recommendations by reports that I had [in] different ways. We stockpiled them different. We treated the clay with lime. In the future, when we put the silty soils, the finish layer on top *499for the roads, those would be treated with soil cement, like in the CBK.... [A]nd it was very easy. We spent about around $200,000 on the other side. And you can ... drive on it, walk on it, [put a] FEMA trailer, whatever you want, anywhere on it.
Tr. 426:4-17 (McConnaughhay).
Comparison of the government’s effort to construct temporary housing for disaster assistance recipients on the Leased Property to Grand Acadian’s partial construction of improvements for an RV park on the Non-Leased Property, however, is inapposite. Soil conditions on the Leased Property and the Non-Leased Property were different. The Leased Property contains a greater proportion of wetlands than the Non-Leased Property, see supra Part III.A1 (finding that two-thirds of the Leased Property are within an area that is 42% wetlands); JX 4 (Wetlands Determination) 2 (showing, on a map of Grand Acadian’s sixty-acre property, that most of the Non-Leased Property lies in the other area, which is 23% wetlands). And, perhaps most importantly, Grand Acadian had obstructed drainage from the Leased Property, see supra Part III.A.5.b, leading to the accumulation of standing, perched water that created and exacerbated soft, unstable soil conditions, see supra Part III.A.5.b (describing the accumulation of perched water); supra Part III.D.2 (describing the soil conditions documented by SEI). The government’s contractors arrived at the Leased Property to begin work on January 7, 2006, see supra Part III.D.l, at a time when the natural characteristics of the soil, the obstructed drainage and a recent rainfall of more than two and one-half inches combined to make the Leased Property into “a very wet, muddy site,” supra Part III.A.5.b.
The wet, unstable soil conditions made the Leased Property inappropriate for rapid development as temporary housing for disaster assistance recipients, see supra Parts III. D.l-3, but do not preclude the development of the Leased Property as an ordinary RV park, see supra Part III.D.8.b (describing the deposition testimony of Mr. Prochaska that the Leased Property can still be developed consistent with the recommendations in the CBK Report if wet weather is avoided); supra Part IV.A.2.a (describing the opinion testimony of the government’s contractors and SEI that the Leased Property could be developed if sufficient time was available to allow the soil to dry).
Comparisons to construction activities on the Non-Leased Property do not support Grand Acadian’s claim for soil replacement.74
e. Purported Admissions by Fluor and Government Personnel Do Not Support Grand Acadian’s Claim for Soil Replacement
Plaintiff contends that government and Fluor employees have admitted that the Leased Property requires restoration. See Pl.’s Br. 11-14; Pl.’s Resp. 8-9. In support of this argument, plaintiff relies upon the testimony, taken out of context, of witnesses with no personal knowledge of the condition of the Leased Property at the beginning of the Lease, of the work undertaken by Fluor before its stormwater remediation efforts, or of the effect of Fluor’s construction activities on subsurface soil conditions.
Citing the trial testimony of FEMA employee Ms. Van Cleve and e-mails written by Ms. Van Cleve, plaintiff argues that “Ms. Van Cleve confirmed that FEMA contractors ‘had scraped the land raw* and testified that there was never any question in her mind *500that the Grand Acadian property needed to be restored, stating that it was unacceptable the way that Grand Acadian was being treated by FEMA and asking FEMA employees to make it right.” PL’s Br. 11 (quoting Tr. 568 (Van Cleve)). Defendant responds that “Ms. Van Cleve never saw the pre-lease condition of the property or any construction work, and she relied on Mr. McConnaughhay for all of her information.” Def.’s Resp. 15. Based on the parties’ stipulations in this matter, defendant points out that “Mr. McConnaughhay did not tell Ms. Van Cleve that, by December 2005, Grand Acadian’s contractors already had scarified the surface and there was virtually no grass or ground vegetation left on the leased property prior to any Government construction.” Id. Scarification is the process of clearing vegetation. See Tr. 1140:10-14 (Jai’boe). It is uncontested that the Leased Property was scarified by Grand Acadian’s contractors before the beginning of the Lease. See JS ¶ 37 (“In December 2005, there was virtually no grass or ground vegetation upon the leased property.”); supra Part III.A.4 (describing the logging and clearing of the Leased Property by Grand Acadian’s contractors before the Lease began).
Defendant is correct. Mr. DeBlasio described Ms. Van Cleve as belonging to the “programmatic side” of FEMA rather than the “contracting arena,” and described her responsibilities as including “dealing with the local parish folks, possibly landowners to some degree, ... looking at the numbers of our daily reports, ... looking for trends, looking for just unmet needs out there.” Tr. 1622:2-8 (DeBlasio). Ms. Van Cleve had no experience “with soil projects,” Tr, 587:12-14 (Van Cleve), and did not know what construction activities had taken place on the Leased Property prior to February 2006, see id. at 588:8-24. Ms. Van Cleve described her role as “the in-between person between Mr. McConnaughhay ... and our Baton Rouge office.” Id. at 587:8-11.
In fact, Ms. Van Cleve’s only source of information about soil conditions and the need for restoration was Mr. McConnaugh-hay. See id. at 590:5-10. Ms. Van Cleve described a conversation that she had with Mr. McConnaughhay in his truck, in which she asked him the cost of any required restoration and Mr. McConnaughhay agreed to develop an “exact figure” for Ms. Van Cleve to “take forward.” Id. at 586:12-22. Ms. Van Cleve did not have the expertise to analyze Mr. McConnaughhay’s restoration request. Id. at 587:1-7. Ms. Van Cleve explained that by her use of the word “unacceptable,” she meant that “it was unacceptable that it was taking that long to work with Mr. McConnaughhay and decide what we were doing with his land[, bjecause he couldn’t use the 30 acres that we had a lease on,” id. at 577:20-578:8, an explanation that was inconsistent with the government’s right under the Lease to continue to occupy the Leased Property until the Lease terminated.
Plaintiff also relies on the testimony of one Fluor employee and two P2S employees assigned to undertake stormwater remediation on the Leased Property. See Pl.’s Br. 14-15. Plaintiff contends that “in a candid conversation with Pat McConnaughhay, [Timothy Wilson] promised to restore the Property that Fluor had ‘screwed up.’ ” Pl.’s Br. 14 (quoting and citing Tr. 808-09, 817-18 (Wilson)). Mr. Wilson’s role, however, was to oversee stormwater remediation, not construction of the RV park. See Tr. 800:11-23 (Wilson). Mr. Wilson “never saw the condition of the property” before he arrived in August 2006, see id. at 809:22-23, 800:1-3, and was not familiar with the construction activities that took place before he arrived, see id. at 823:9-12. Mr. Wilson therefore has no personal knowledge of the condition of the Leased Property at the beginning of the Lease or the effect of Fluor’s work on subsurface conditions.
Furthermore, Mr. Wilson explained at trial that “Fluor screwed it up in the sense that we had stuff we needed to do to get back in conformance with the storm water permit.” id. at 810:16-19; see also id. at 809:17-20 (“I told him that it was screwed up, but screwed up in a sense that it was unfinished. It was obviously a place that had been started and then pulled off.”). Mr. Wilson testified that Fluor “had some erosion issues, [and] some silt in the bayou from the drainage ditches.” Id. at 801:3. Mr. Wilson testified that “we *501had to go back and get the property viable to meet the storm water permit requirements.” Id. at 800:21-23; see also supra Part III.D.6 (describing Fluor’s stormwater remediation efforts).
In briefing, plaintiff quotes out of context selected words from the testimony of Mr. Chris Cloud, arguing that Mr. Cloud and Mr. Dousay were assigned to “‘reelafim]’ the Property or level it off after it had been ‘disturbed’ and ‘damage[d]’ by previous contractors.” Pl.’s Br. 14 (brackets added) (quoting Tr. 2870-71, 2877 (Cloud)). Mr. Cloud, who supervised the P2S employees performing stormwater remediation on the Leased Property, see Tr. 2870:1-6, 2872:10-24 (Cloud), first saw the Leased Property late in the summer of 2006, id. at 2870:19-23. Mr. Dousay, who was employed by P2S as a foreman on the Leased Property, visited the Leased Property for the first time in August 2006. See Tr. 2891:12-16 (Dousay). Neither Mr. Cloud nor Mr. Dousay had personal knowledge of the condition of the Leased Property at the beginning of the Lease or the effect of Fluor’s construction efforts on subsurface conditions.
Furthermore, read in context, the testimony quoted by plaintiff indicates that Mr. Cloud believed that any damage to the Leased Property related to stormwater controls and erosion rather than subsurface conditions. In the sentences in which Mr. Cloud referred to “damage” to the Leased Property and described the Leased Property being “disturbed” by other contractors, Mr. Cloud’s testimony described areas that needed to be leveled for stormwater compliance, not to mixing of the soil layers or the pushing down of organic materials into the subsurface of the soil. See Tr. 2877:9-10 (Cloud) (“We went there to try to level it back off from the damage that was done prior.”); id. at 2871:1-3 (“We were asked to come in and level the property back off that [had been] disturbed earlier by another contractor.”); cf. supra Part III.D.6 (describing the requirement that 70% of the property be planted with ground cover to satisfy the requirements of the storm water permit). Mr. Cloud appeared to use the term “reclamation” because he had confused “reclamation” with the term “stormwater remediation.” See Tr. 2871:3-5 (Cloud) (“It’s called a reclamation if I remember! — Jthat’s what they said we was going in to [do — ]a reclamation on this property.”).
Plaintiff contends that when Mr. Mark Ashby, who is employed by Fluor as a government contracts administrator, Tr. 833:3-14 (Ashby), “requested [Gerald Matthew] Rottinghaus], the government’s contracting officer,] for authority to perform restoration work, Rottinghaus refused,” Pl.’s Resp. 8 n.22. Plaintiff provides no citation to support this proposition, and the details of any request were not presented at trial. See id. The implication of plaintiffs argument is that, by requesting authority to perform restoration of the soil, Mr. Ashby acknowledged that the soil requires soil replacement. The evidence presented at trial does not support plaintiffs argument.
By an e-mail dated February 25, 2006, the government’s COTR, Mr. Tom Nadsady, directed Fluor to “[s]olieit bids for land restoration work at the Grand Acadian site.” JX 50 (Nadsady E-mail). Mr. Nadsady stated that “[t]he scope of work shall include the removal of debris piles and grading the site to restore a natural drainage pattern,” as well as seeding grass. Id. Mr. Nadsady did not state that the scope of work was to include the removal and replacement of soil. Id. Mr. Nadsady did not testify at trial and Mr. DeBlasio — the only recipient of the email to testify at trial — was not asked about the e-mail.
By an e-mail dated August 8, 2006, Mr. Ashby answered questions posed in an earlier e-mail from Mr. Rottinghaus regarding work that, it appears from the e-mail, Fluor suggested would be necessary to “restore the property back to the condition it was at the time of the effective date of the lease.” PX 303 (Ashby E-mail) 4847. The nature of the work that Fluor thought was necessary was not described in the e-mail and the authors of the responses did not testify at trial. See Tr. 863:2-17 (Ashby) (Mr. Ashby explaining that he “faeilitatefd] the responses,” but that they were written by others). Nor did the e-mail describe why Fluor believed that restoration of the Leased Property was appropriate.
*502Referring, the court concludes, to Mr. Bo-secker, the engineer retained by FEMA after the government cancelled construction and who testified at trial as plaintiffs expert witness in geotechnical engineering, see supra Part III.D.5 (describing Mr. Bosecker’s restoration analysis), the August 8, 2006 e-mail explained as follows “the disparity between [Mr. Bosecker’s] solution to restore the property to the original condition” and Fluor’s proposal:
The main disparity exists between ... the standard used for ‘original condition’ to which to return the land. The government consultant used the original condition prior to deforestation.... Fluor’s measure was to return it [to] an equal condition [to that] prior to Fluor commencing construction activities in the wake of [H]urrieane Rita and the removal of timber by the own-er_ [Mr. Bosecker’s] solution proposes to remove 4 feet of the soil with the addition of back fill to make this site suitable for commercial use or development, not the original state of the property. In addition, there are engineering fees, consulting fees, surveys, replacement of trees, and site dewatering costs that Fluor deemed unnecessary or redundant for completion of the site remediation to its original state.
PX 303 (Ashby E-mail) 4848. It appears from the price of the work that Fluor proposed to undertake, compare id. at 4847 (proposing a price of $448,274), with PL’s Resp. 29 (arguing that the court should award Grand Acadian $6,095,529.13 for the government’s breach of its duties under the Restoration Clause), and from Fluor’s disagreement with Mr. Bosecker’s suggestion of removing and replacing four feet of soil, that Fluor believed that relatively minor restoration efforts — not to include soil replacement — were appropriate, cf. supra Part III. D.6 (describing Fluor’s stormwater remediation efforts and filling of the portion of the South Ditch on the Leased Property). The purported admissions of government and Fluor personnel cited by plaintiff do not support plaintiffs claim for soil replacement. The government is not responsible to restore the Leased Property to its “original condition prior to deforestation.” PX 303 (Ashby Email) 4848.
3. Any Change in Soil Conditions Was Normal Wear
The Restoration Clause does not require the government to remedy a change in soil conditions if the change is the result of normal wear. Supra Part III.B.3. The analysis of whether construction impacts on the soil of the Leased Property is normal wear requires the court to determine whether Fluor exercised reasonable care in its work on the Leased Property. See supra Part II.B. For the reasons described below, the court finds that Fluor exercised reasonable care in its work on the Leased Property and that any change in soil conditions necessarily resulted from the purpose for which the Leased Property was leased.
a. Soil Damage that Would Necessarily Result from the Purpose for Which the Leased Property Was Leased Is Normal Wear
Damage to a property that necessarily results from the purposes for which the property was leased is normal wear. See Mount Manresa, 70 Ct.Cl. at 150. Accordingly, the specific purpose for which a property is leased is central to the determination of what constitutes normal wear. See Riverside, 122 Ct.Cl. at 783.
The Lease describes the purpose for which the Leased Property was leased as follows: “Use of the Property shall be for construction and establishment of temporary housing facilities for disaster assistance recipients and construction of improvements ... as the Government determines necessary and/or expedient in connection with the establishment and operation of temporary housing facilities.” Supra Part III.B.3 (quoting JX 31 (Lease Rider) ¶ 2).
At trial, Mr. DeBlasio, the housing officer for FEMA’s joint field office in Baton Rouge, Louisiana, described the urgency with which temporary housing was required for disaster assistance recipients. Hurricanes Katrina and Rita had displaced between 200,000 and 300,000 families. See supra Part III.B.l. Describing the demand for temporary housing, Mr. DeBlasio testified that, for two *503months after Hurricane Rita, “the numbers were increasing all the time,” and “[t]here was no end in sight.” Supra Part III.B.l (quoting Tr. 1614:16-20 (DeBlasio)). Hon-ore’s subcontract with Fluor, reflecting the urgency of the need for temporary housing, required Honoré to finish all aspects of construction within sixty days. See supra Part III.D.l.
Some normal wear would necessarily result from preliminary construction work of the type undertaken by Fluor. It is “normal to have some organic material mixed into the top layers of soil during every clearing operation.” Tr. 1317:20-25 (Prochaska); see also Tr. 3450:6-15 (Krielow) (stating same). Pulling up stumps can bring balls of clay to the surface, see Tr. 3562:22-3563:4 (Krielow), and the resulting stumpholes must be carefully cleaned out before the construction of paved areas, see supra Part III.A.3. Burn piles can penetrate the clay layer, see Tr. 3551:15-24 (Krielow), and produce ash, which may interfere with the use of silty soil for soil cement, see Tr. 1351:13-16, 1352:18-21 (Prochaska). The excavation of features such as the East Ditch, the South Ditch and the retention pond requires penetration of the clay layer. See Tr. 3551:15-3552:8 (Krielow).
The government’s construction efforts were hampered by wet, unstable soil conditions, see supra Parts III.D.1-2, which had been exacerbated by Grand Acadian’s own actions, particularly the construction by Grand Acadian of the road at the eastern boundary of the Leased Property, blocking drainage from the Leased Property, see supra Part III.A5.b. Owing to the urgency of the purpose for which the government leased the Leased Property — the housing of disaster assistance recipients, see supra Part III. B.l — the court finds that the government necessarily would have attempted to drain the Leased Property and dry the soil before concluding that construction could not be completed before the demand for temporary housing ebbed. The government necessarily would have worked rapidly and would have continued to undertake clearing and any other “work-around activities,” see supra Part III.D.3, that could be accomplished during the delay. As appears below, trial evidence includes no proof of failure by the government’s contractor to exercise reasonable care in its work. See infra Part IV.A3.b. Any damage to the soil would necessarily have resulted from the purpose for which the Leased Property was leased and would be normal wear.
b. Fluor Exercised Reasonable Care in its Activities on the Leased Property
Plaintiff argues that the construction practices employed by the government were flawed in several respects. See Pl.’s Br. 7-11. In particular, plaintiff faults Fluor for “beg [inning] significant dirt work operations, using heavy equipment, without undertaking any effort to establish drainage or mitigate the saturated conditions,” id. at 8; see also id. at 9-11; Pl.’s Resp. 16-19 (repeating plaintiffs argument that Fluor employed heavy equipment on the Leased Property before establishing drainage), and for failing to “clear[ ] the land of surface debris,” Pl.’s Br. 8. Plaintiff did not present expert testimony on the topic of construction practices. Instead, in support of this argument, plaintiff cites the testimony of Mr. McCon-naughhay and Mr. Mark A. Fontenot, one of the subcontractors who worked on the Non-Leased Property, about their observations of the work that Fluor performed on the Leased Property.75 See id.
*504Mr. Fontenot testified that Fluor was “cutting roads in there but they didn’t provide any drainage to get rid of the water.” Tr. 964:1-9 (Fontenot); see also id. at 962:15-18 (“They didn’t drain the water from the site before starting to work.”). It appeared to Mr. Fontenot that Fluor “just pushed and piled up mud, or they didn’t allow the soils to dry enough to work.” Tr. 961:21-24 (Fonte-not). Mr. Fontenot believed that clearing had been completed on all but one corner of the Leased Property.76 See id. at 966:6-15.
Contrary to Mr. Fontenot’s mistaken observations made from the Non-Leased Property and plaintiffs argument in briefing, Fluor did not “skip” drainage,77 see Pl.’s Resp. 14, 17, and proceed directly to road construction as Mr. Fontenot believed, see supra Part III.D.l (describing Fluor’s activities on the Leased Property before the government ordered Fluor to stop work). Rather, Fluor undertook precisely the types of drainage and clearing activities that plaintiff and Mr. Fontenot contend were required. See supra Part III.D.l.
Almost immediately after its arrival at the Leased Property, Fluor began digging temporary drainage ditches, spreading wet soil on higher ground to dry, and employing pumps to dewater the soil. See supra Part III.D.l. Fluor constructed berms to prevent stormwater from eroding the Leased Property and dug permanent drainage and erosion prevention structures: the East Ditch, the South Ditch and the retention pond. See supra Part III.D.l. To facilitate its construction and digging, Fluor cleared trees and other debris from the areas where it planned to work. See Tr. 1735:18-1736:1 (Beck); see also supra Part III.D.l (describing Fluor’s drainage and clearing activities). As Mr. Fontenot acknowledged, it is necessary to perform clearing “in the area that you’re working on” when constructing roads and RY pads. Tr. 966:20-967:4 (Fontenot). Similarly, Mr. MeConnaughhay noted that, in its development of the Non-Leased Property, Grand Acadian cleared the areas where it planned to perform “any dirt work,” including the digging of ditches. Tr. 222:3-25 (MeConnaughhay). To support its clearing, drying and drainage efforts, and to make efficient use of some of the clay being excavated from the East Ditch, the South Ditch and the retention pond, Fluor began to construct a temporary road along the east side of the Leased Property.78 See supra Part *505III.D. 1. However, Fluor did not begin to construct permanent roads, RV pads, parking lots or other structures not required to support its activities. See supra Part III. D.l; Tr. 3418:14-3419:3 (Krielow) (stating that Fluor “had not actually gotten into what I would consider the heavy earth work part of the project when it was stopped”).
Plaintiff argues that defendant should have established drainage and cleared the surface of debris before undertaking further work. See Pl.’s Br. 8-11; Pl.’s Resp. 16-19. It therefore follows from plaintiffs own view of the work necessary to be undertaken by the government at the beginning of the Lease term that any harm to the soil that resulted from establishing drainage, drying the soil and clearing surface debris necessarily resulted from the purpose for which the Leased Property was leased and is normal wear for which defendant is not liable in damages. Although plaintiff argues that Fluor did not complete the South Ditch, the East Ditch and the retention pond soon enough, Pl.’s Br. 8-9, plaintiff does not argue that Fluor did not exercise reasonable care in these activities. Plaintiff blames Fluor for delay on the ground that Fluor failed timely to make the necessary phone calls to have the locations of underground utilities marked. See id. Defendant responds that “no one testified that Fluor originally intended to begin work by excavating the permanent ditches. In fact, the timing of marking the utilities did not actually impact the construction schedule because Fluor always had planned to clear the surface before excavating the permanent ditches.” Def.’s Resp. 12. Defendant is correct, as Fluor’s site manager, Mr. Rothkamm, explained in the following colloquy:
Q Did the timing of the call ... change anything about the schedule for the project?
A No, sir.
Q Why do you say that?
A We had several days of clearing.
Q Okay. Did the timing of the call ... change anything about the order in which tasks would be performed on the project? A No, sir.
Q Why is that?
A That’s the way the schedule was laid out.
Tr. 790:12-23 (Rothkamm); see also Tr. 1734:25-1736:17, 1737:15-19 (Beck) (stating that the timing of the call to request that utilities be marked did not affect the timing of excavating the South Ditch and the East Ditch); 1834:18-22 (Gourgues) (stating same).
At trial, Mr. Krielow, defendant’s expert witness in construction practices and construction cost estimation, testified that the wetness and instability of the silty soil probably prevented Fluor from excavating the South Ditch and the East Ditch before the temporary drainage ditches and dewatering efforts had drained the Leased Property and dried the soil: “More than likely, if they would have ... attempted to put the permanent ditches in at this stage they would have gotten filled in, sloughed in, or they would not have ended up where they needed to end up for the final plans.” Tr. 3445:7-24 (Krie-low). Mr. Krielow explained that, in “all” of the projects in which Mr. Krielow has encountered perched water, he has established temporary drainage to “get the site in a condition that we can work on.” Id. at 3446:19-22; cf. id. at 3434:14-17 (“[T]he order of work that they were performing ... was what I would expect to see on the site of this nature just getting started in the preparatory stages....”). The court finds no evidence in the trial record to contradict Mr. Krielow’s expert testimony that any change in the condition of the Leased Property was within what would be considered normal wear in the construction industry. See id. at 3424:5-3425:3.
Fluor’s construction activities on the Leased Property were almost entirely limited to creating drainage, drying the soil and removing surface debris79 — activities which *506were necessary to prepare the Leased Property for further construction, see supra Part III.D.l, and which plaintiff agrees that Fluor should have performed, see Pl.’s Br. 8-11; Pl.’s Resp. 16-19. The court finds no indication that Fluor failed to exercise reasonable care in its work; accordingly, any changes in the soil that resulted from Fluor’s work are the result of normal wear.
Grand Acadian has not persuaded the court that soil replacement or other soil restoration efforts are required to return the Leased Property to its condition at the beginning of the Lease term, normal wear excepted. Grand Acadian’s arguments regarding the condition of the soil at the beginning of the Lease rely upon evidence of soil conditions developed before Grand Acadian undertook months of clearing and logging. See supra Part IV.A.l.a. Descriptions of the clearing and logging, the testimony of plaintiff’s own expert witness in geotechnical engineering, Mr. Jones, and the work that Grand Acadian undertook on the Non-Leased Property to remove organic material from the soil all indicate that Grand Acadian’s own activities prior to the commencement of the Lease term introduced substantial amounts of organic debris into the soil. See supra Parts III.A.3-4, III.A5.a, IV.Al.a.
According to Grand Acadian’s argument in briefing, as a result of the government’s actions, the soil on the Leased Property is unsuitable for use in construction without removal and replacement of the uppermost two and one-half feet of soil. See Pl.’s Br. 18-21. However, Grand Acadian never conducted the testing necessary to determine whether the soil is suitable for use in construction. See supra Part IV.Al.b. Visual inspection indicates that there is little organic debris beneath the surface of the soil, and plaintiffs own expert witness in geotechnical engineering, Mr. Proehaska, testified in his deposition that the organic material he observed could be removed in the same manner as the organic material in the soil on the Non-Leased Property. See supra Part III. D.8. In addition, Mr. Proehaska testified during his deposition that Grand Acadian could still develop the Leased Property consistent with the engineering recommendations that Grand Acadian received before the Lease. See supra Part III.D.8.b.
In its briefing, Grand Acadian invites the court to speculate that, in the first four full days of construction, Fluor’s alleged improper construction practices damaged the soil on the Leased Property. See Pl.’s Br. 8-11; Pl.’s Resp. 2, 7-13. Relying upon the testimony of Mr. McConnaughhay, who has never worked as a construction contractor, and the testimony of Mr. Fontenot, a subcontractor who worked on the Non-Leased Property but never entered the Leased Property and appears to have misunderstood the nature of the work taking place there, Grand Acadian contends that Fluor failed to establish drainage and proceeded directly to other construction activities. The evidence presented at trial, however, indicates that Fluor undertook precisely the activities Grand Acadian argues it should have — creating drainage, dewater-ing and attempting to dry soil, and clearing the surface of the Leased Property — rather than proceeding directly to other construction. The court agrees with defendant that Fluor exercised reasonable care in its work and caused no harm to the soil on the Leased Property that did not necessarily result from the purpose for which the Leased Property was leased. Any changes in the soil on the Leased Property were normal wear that would be anticipated by the permitted use. The court concludes that plaintiff is not entitled to damages for soil replacement or other soil restoration.
B. Grand Acadian’s Claim for Removal of Alterations
In its 2011 Summary Judgment Opinion, the court found that the Restoration Clause required the government to fill the retention *507pond, the East Ditch and the unfilled portions of the South Ditch. See supra Part I; 2011 SJ Op., 97 Fed.Cl. at 493-94. At the time of the court’s 2011 Summary Judgment Opinion, it was not clear why the government had left these structures unfilled.
However, trial testimony makes clear that the retention pond, the East Ditch and the unfilled portions of the South Ditch “were maintained to comply with the LDEQ storm water permit.” Def.’s Br. 52 n.8. The government contends that the Lease did not require the government to fill these structures because the Lease “requires the Government to ‘comply with all Federal, state and local laws applicable to the ... premises, including ... laws applicable to the construction, ownership, alteration or operation of the property.” Id. at 52-53 (omissions in original) (quoting JX 31 (General Clauses) ¶ 15). Defendant states that it learned that the retention pond, the East Ditch and the unfilled portions of the South Ditch were maintained to comply with the LDEQ storm water permit only “[a]fter Heather Berg returned to the United States in December 2011 following several years in Afghanistan.” Id. at 52 n. 8. Ms. Berg, an environmental scientist, was employed on the Leased Property to ensure that P2S complied with Fluor’s stormwater pollution prevention plan and to advise P2S on the process of stabilizing the surface of the Leased Property. See supra Part III.D.6.
The government contends that “[LDEQ] visited Grand Acadian’s property one time in mid-September 2006 and recommended that Fluor maintain the east ditch on the leased property, the retention pond on the leased property, and the south ditch on the non-leased property, along with other water control measures, to comply with state requirements for storm water management.” Def.’s Br. 32-33 (citing Tr. 3874:10-3878:19, 3887:21-3889:9 (Berg); JX 64 (Berg E-mail)).
Plaintiff does not respond in its briefing to defendant’s contention. It is undisputed that Ms. Berg did not return to the country until approximately December 11, 2011, nine months after the court’s 2011 Summary Judgment Opinion. See Def.’s Consent Mot. for the Ct. to Hear Live Trial Test, of One Witness Out of Time, Dkt. No. 145, at 1 (defendant’s counsel representing, in a motion to which plaintiffs counsel consented, that Ms. Berg would return on approximately December 11, 2011); Grand Acadian, Inc. v. United States, 101 Fed.Cl. 398, 410 (2011) (granting defendant’s motion to hear the testimony of Ms. Berg).
Defendant is correct that the Lease requires the government to “comply with all Federal, State and local laws applicable to and enforceable against it as a tenant under this lease.” See supra Part III.B.3. The court “must interpret [the Lease] as a whole and ‘in a manner which gives reasonable meaning to all its parts and avoids conflict or surplusage of its provisions.’ ” United Int’l Investigative Seros, v. United States, 109 F.3d 734, 737 (Fed.Cir.1997) (quoting Granite Constr. Co. v. United States, 962 F.2d 998, 1003 (Fed.Cir.1992)). In light of Ms. Berg’s uncontested testimony that the retention pond, the East Ditch and the portion of the South Ditch on the Non-Leased Property were left in place at the recommendation of LDEQ for purposes of stormwater control, see Tr. 3874:10-3876:9, 3887:21-3889:9 (Berg); JX 64 (Berg E-mail), and the fact that Ms. Berg was overseas until after the court’s 2011 Summary Judgment Motion, the court concludes in the light of Ms. Berg’s trial testimony that the Lease did not require the government to remove the retention pond, the East Ditch or the portion the South Ditch on the Non-Leased Property.80
*508V. Disposition of the Government’s Counterclaims
The government pleaded counterclaims in fraud under the FCA, the FFCA and the antifraud provision of the CDA. See Answer ¶ 187.
Each of the three statutes under which defendant pleaded its counterclaims has a mental state requirement. The FCA requires the government to prove by a preponderance of the evidence that the contractor knew that a claim presented to the government was false or fraudulent, see supra Part II.C.l, and defines “knowingly” as “(1) ‘actual knowledge,’ (2) acting ‘in deliberate ignorance of the truth or falsity of information, or (3) acting ‘in reckless disregard of the truth or falsity’ of information,” Daewoo, 557 F.3d at 1340 (quoting 31 U.S.C. § 3729(b)). To prevail under the antifraud provision of the CDA, the government must prove by a preponderance of the evidence “that the contractor made false or fraudulent statements in its submitted claim with an intent to deceive or mislead the government.” Commercial Contractors, 154 F.3d at 1362. “To prevail under [the FFCA], the government must ‘establish by clear and convincing evidence that the contractor knew that its submitted claims were false, and that it intended to defraud the government by submitting those claims.’ ” Daewoo, 557 F.3d at 1341 (quoting Commercial Contractors, 154 F.3d at 1362).
In its post-trial briefing, the government summarizes its counterclaims as follows:
Grand Acadian made misrepresentations of material fact concerning the pre-lease condition of the property in its certified claim for “restoration” of dead, dying, and damaged trees and non-existent grass, even though Grand Acadian’s president, Patrick McConnaughhay, visited Grand Acadian’s property nearly every day in November and December 2005 and was familiar with the property’s condition on December 7, 2005.
Def.’s Br. 59 (some quotation marks omitted). For the following reasons, the court finds that the evidence presented at trial does not support the government’s counterclaims.
A. Grass
In Grand Acadian’s Second Certified Claim, Grand Acadian demanded payment of $144,000, which includes the associated portion of a 20% project contingency fee, to hydroseed grass on the Leased Property. See JX 59 (Second Certified Claim) 0010. The parties have stipulated that “[i]n December 2005, there was virtually no grass or ground vegetation upon the leased property.” JS ¶ 37. The government argues that, “[d]e-spite actual knowledge that there was no grass upon the leased property in December 2005, Grand Acadian never once disclosed this fact to the contracting officer despite maintaining a claim for restoration of grass, thus creating the misleading impression that grass existed prior to the lease, when none actually existed.” Def.’s Br. 61.
Grand Acadian argues that “[nowhere] in its claim did Grand Acadian make a repre*509sentation regarding the state of ground cover prior to the lease.” Pl.’s Resp. 23. Grand Acadian contends that it included the cost of seeding the Leased Property in its Second Certified Claim because “[b]y law, Mr. McConnaughhay must re-seed in order to comply with DEQ regulations.” Pl.’s Br. 24-25. Grand Acadian argues that, at trial, both defendant’s counsel and Heather Berg, an environmental scientist employed by Fluor’s subsidiary, TRS, conceded the existence of this requirement. See id.
Defendant responds that “[t]he contracting officer asked Grand Acadian questions about the certified claims, and Grand Acadian never provided ‘any justification for its claim for hydroseeding grass.’ ” Def.’s Br. 61 (quoting Tr. 1126:3-11 (Rottinghaus)). Defendant argues as follows regarding Mr. MeConnaugh-hay’s testimony related to the requirement to seed grass:
At trial, Mr. McConnaughhay testified on direct that a Louisiana storm water permit requirement is the basis of the grass claim, but, on cross, he admitted that: (i) “I don’t know exactly when I decided that,” (ii) he didn’t obtain such a permit when D & G Construction performed similar work [on the Non-Leased Property], and (iii) he could not provide any evidence or describe any circumstances that would corroborate his claim to have learned about the permit requirement prior to September 2006, when Fluor planted sod and grass on the property.
Id.
The concession by defendant’s counsel and by Ms. Berg that stormwater permits issued by LDEQ require the establishment of ground cover is dispositive of defendant’s counterclaims regarding the planting of grass. See Tr. 1207:1-10 (defendant’s counsel) (“[T]here is in fact some [LDEQ instruction, possibly a regulation, requiring the seeding of grass on disturbed areas of property exceeding five acres or more. And I wanted the Court to understand that the Government does not contend there is no such instruction or regulation.”); Tr. 3860:4-3861:16 (Berg); cf. supra Part III.D.6 (describing Fluor’s planting of grass to satisfy the requirements of the stormwater permit). That Mr. McConnaughhay was unable to articulate precisely when and how he learned of the requirement that disturbed soil be stabilized with ground cover, and that Mr. McConnaughhay may not have complied with the rule in previous work on the Non-Leased Property, as defendant argues, see Def.’s Br. 61, does not supply proof sufficient to carry the government’s evidentiary burden.81
For the foregoing reasons, the court finds that the government has not carried its burden of establishing the requisite mental state under the FCA, the FFCA or the antifraud provision of the CDA with regard to Grand Acadian’s claim for the cost of planting grass.
*510B. Trees
Before the Lease began, Grand Aca-dian’s contractors largely cleared and logged the Leased Property, leaving some trees standing for aesthetic purposes. See supra Part III.A.4. Hurricane Rita knocked down some of the trees left by Grand Acadian’s contractors. See id. During the Lease term, to accommodate construction, Fluor removed all of the remaining trees on the Leased Property. See supra Part III.D.l. In Grand Acadian’s Second Certified Claim, Grand Acadian demanded payment of $180,-000 — including the associated portion of a 20% project contingency fee — to replace 150 trees on the Leased Property. See JX 59 (Second Certified Claim) 0010. The court has determined that the Lease does not entitle Grand Acadian to the cost of replacing trees on the Leased Property. See supra Part I. In support of its counterclaims relating to Grand Acadian’s claim for the replacement of trees, the government argues that Grand Acadian misrepresented both the number and the state of health of the trees on the Leased Property at the beginning of the Lease term. See Def.’s Br. 59-60.
The government cites the testimony of Mr. Bosecker, see id. at 22, who testified that Mr. McConnaughhay informed Freese & Nichols personnel that he had “left approximately 150 trees on the leased property to add aesthetic value to the property,” Tr. 704:14-17 (Bosecker); cf. supra Part III.A.4 (describing Mr. McConnaughhay’s marking of trees that were not to be removed during Grand Acadian’s logging and clearing operations). The government argues that “Grand Acadian had actual knowledge that clearing activities and Hurricane Rita caused extensive damage to the trees prior to December 2005.” Def.’s Br. 59-60 (citing McConnaugh-hay Dep. 133:10-21, May 21, 2010 (stating that in December 2005 the Leased Property “had some downed hurricane trees”); McConnaughhay Dep. 252:2-5, May 21, 2010 (“I know that 90 percent of every tree in southwest Louisiana was damaged to some extent or another by Rita.”); Tr. 3741:1-24 (McConnaughhay) (“I’m sure a few [trees] died from the clearing activities.”)).
The government argues that its expert witness in arboriculture, Mr. Joseph Robert Samnik, Jr., using enlarged photographs that were “enhanced with clarity that was exponentially better than the 8.5 by 11 inch versions of the joint exhibits used at trial,” determined that only 110 trees were standing on the Leased Property at the beginning of the Lease term, the others having been downed by Hurricane Rita. Def.’s Br. 22 (internal quotation marks omitted). Based upon Mr. Samnik’s analysis of the trees on the Non-Leased Property, defendant argues that, “[o]f the 110 trees that were standing, 10 were dead or nearly dead as any person without tree biology training could recognize, and the remaining 100 trees were in less advanced stages of dying or were damaged to various degrees.” Id. at 59. The government cites Mr. Samnik’s testimony that only a trained arborist can recognize “trees that are damaged, irreparably damaged, or in an early stage of dying (or ‘decline’), but an average person without tree biology training can recognize that ‘something is wrong’ with trees in a moderate stage of decline, and any untrained layperson can recognize trees that are either dead, or in advanced decline (‘nearly dead’).” Id. at 24 (quoting Tr. 3678:15-3682:1 (Samnik)).
In the government’s view, Mr. MeCon-naughhay must have been aware — or, at a minimum, must have acted with reckless disregard for the fact — that, because certain of the 150 trees that he had left on the Leased Property for aesthetic purposes were killed and nearly all were damaged by Hurricane Rita and by Grand Acadian’s clearing activities, not all 150 of the trees remained alive and healthy at the beginning of the Lease term. See id. at 62-68 (applying the standards of the FCA, the FFCA and the anti-fraud provision of the CDA to plaintiffs certified claims).
Grand Acadian responds that Mr. McCon-naughhay “had not counted the trees before Fluor removed them because there was no way of knowing while the trees were still •standing that the FEMA Park would be can-celled mid-stream, that his land would be returned in an un-restored condition, or that he would have to file a lawsuit in order to *511enforce the lease agreement.” Pl.’s Br. 21. Grand Acadian argues that its expert witness in tree health and tree appraisal, Mr. Evarist Joseph (E.J.) Dennis, III, determined that there were more than 150 living trees standing on the Leased Property at the beginning of the Lease term and “offered favorable opinions about their health.”82 Id. at 21-22, 24. The implication of Grand Acadian’s argument is that Mr. MeConnaughhay’s estimate of the number of trees standing on the Leased Property was both accurate and reasonable given the information available to him. See id.
The government has not carried its burden of proving the requisite mental state under the FCA, the FFCA or the antifraud provision of the CDA regarding Grand Acadian’s claim for the cost of replacing trees. Mr. McConnaughhay consistently testified that he estimated — but did not count — the number of trees standing on the Leased Property at the beginning of the Lease term. See, e.g., McConnaughhay Dep. 198:17, May 21, 2010 (“I never counted the trees. I estimated.”); Tr. 3735:24-3736:5 (McConnaughhay) (“Q Okay. How did you come up with the number of trees? A It was an estimate of what I recalled was left on the site after we did our initial clearing and the hurricanes, up to the point of the lease. Q Did you count the trees? A No, I did not.”).
The government argues that only 110 trees were standing on the Leased Property at the beginning of the Lease term, ten of which were “dead or nearly dead.” Def.’s Br. 24-25. The court agrees with plaintiff, however, that Mr. MeConnaughhay’s estimate of the number of trees on the Leased Property— even if inaccurate — was not unreasonable. See Pl.’s Br. 21-22, 24; Tr. 3736:10-16 (McConnaughhay). The photographs presented at trial consisted of aerial photographs taken from a great height, see, e.g., JX 17 (Sept. 31, 2005 Aerial Photo); JX 34 (Dec. 15, 2005 Aerial Photos), and ground-level photographs of small portions of the Leased Property, see, e.g., JX 35 (Dec. 29, 2005 Photos). The court views the photographs presented at trial, in the hands of a person with no special training in arboricul-ture, as supporting only a rough estimate of the number of trees on the Leased Property. Defendant argues that Mr. Samnik arrived at a more accurate count of the trees standing on the Leased Property using photographs that were “enhanced with clarity that was exponentially better than the 8.5 by 11 inch versions of the joint exhibits used at trial,” Def.’s Br. 22 (internal quotation marks omitted), but does not contend that Mr. MeCon-naughhay had available similarly enlarged or enhanced photographs when estimating the number of trees on the Leased Property or the number of trees that were downed by Hurricane Rita or killed during clearing.
Neither has the government persuaded the court that Grand Acadian misrepresented the state of health of the trees in its Second Certified Claim. The government argues that 100 of the 110 trees standing on the Leased Property at the beginning of the Lease term were in “less advanced stages of dying or were damaged to various degrees,” Def.’s Br. 24-25, and that Grand Acadian’s certified claim “creat[ed] the misleading impression” that the remaining trees were healthy, id. at 60. However, Mr. Samnik testified that a person without training in tree biology would not notice anything wrong with a tree in an early stage of decline and might believe that a tree in a moderate stage of decline can be saved with pruning. See Tr. 3681:6-21 (Samnik).
Mr. Samnik described types of damage that would not be apparent to a person without training in tree biology. See, e.g., id. at 3623:13-3624:14 (describing “the three ways to kill a tree”: compaction of the air space in the soil, disruption of root systems, as with a root rake, and cutting down the grade of the soil around the tree); id. at 3624:24-3625:6 *512(describing how gouges in tree trunks from construction equipment lead to infection by opportunistic fungi, “which cannot be stopped”); id. at 3693:5-3694:19 (describing epicormie growth, in which a tree responds to injury by growing leaves in places where it would not grow them otherwise); id. at 3695:13-3696:7 (describing the susceptibility of magnolia trees to damage from clearing activities because of their large root systems).
Mr. Samnik also described signs of damage that, although apparent during his assessment of trees remaining on the Non-Leased Property in September 2010, see id. at 3674:21-22, might not have been apparent — particularly to the untrained eye — before Grand Acadian filed its Second Certified Claim in July 2006, nearly four years earlier, see, e.g., id. at 3692:18-3693:1 (describing the process of canopy diebaek that occurs “as defenses in the tree break down”). Mr. Samnik testified that construction disturbs the shallow roots that “collect moisture and mineral[s] from the soil,” id. at 3627:20-22, and that “enable a tree to survive” rather than merely offering support, id. at 3671:23-25. The government has not proven that either the extent of this damage or its implications for the survival of the trees would have been apparent to Mr. McConnaughhay when Grand Acadian filed its Second Certified Claim in July 2006. See JS ¶ 62.
For the foregoing reasons, the court finds that the government has not carried its burden to establish the requisite mental state under the FCA, the FFCA or the antifraud provision of the CDA with regard to Grand Acadian’s claim for the cost of replacing trees.
VI. Conclusion
Grand Acadian has not carried its burden to prove by a preponderance of the credible evidence that further measures are required to restore the soil on the Leased Property to its condition at the beginning of the Lease term, normal wear excepted.83 Nor does the Lease entitle Grand Acadian to the cost of filling the retention pond, the East Ditch and the unfilled portions of the South Ditch, which were left in place for purposes of stormwater control. The Clerk of Court shall ENTER JUDGMENT for the government on Grand Acadian’s claims.
The government has not carried its burden to prove the elements of its counterclaims in fraud. The Clerk of Court shall ENTER JUDGMENT for Grand Acadian on the government’s counterclaims.
No costs.
IT IS SO ORDERED.
APPENDIX A
Witnesses Upon Whose Live Testimony the Court Relies
For convenient reference, the name, in alphabetical order, and a description of each witness upon whose live testimony the court relies in this Opinion follows. With the consent of the parties and to shorten the process of voir dire, see Tr. 654:21-656:16 (colloquy between the court and counsel), the court admitted into evidence the resumes of certain expert witnesses who testified at trial.
Mr. Gavin D. Abshire is an expert witness for plaintiff. Mr. Abshire has completed eoursework in several construction- and business-related topics. See PX 516 (Abshire Resume) 3. Mr. Abshire has worked almost exclusively in construction since 1981 and is the president and owner of River West Enterprises, Inc., see id. at 1-3, a company that manages capital projects on behalf of government agencies, see Tr. 1365:19-1366:6 (Ab-shire). Mr. Abshire held a contractor’s license that expired the year before trial was held. See id. at 1369:25-1370:1. The court qualified Mr. Abshire “as an expert in construction.” Tr. 1370:12-14 (court).
Mr. Jesse L. Arnold is an expert witness for defendant. Mr. Arnold holds a bachelor’s degree and a master’s degree in civil engineering from Louisiana State University and is licensed as an engineer by the state of Louisiana. See DX 26 (Arnold Resume) 1-2. *513Since 1993, Mr. Arnold has been the president and owner of J.L. Arnold, Inc., a company that has had “numerous consulting assignments involving soil investigations for foundation and earthwork design and construction.” Id. at 1. The court qualified Mr. Arnold as “A professional engineer with expertise in the area of geotechnical engi-neerfing].” Tr. 3349:18-23 (colloquy between the court and defendant’s counsel).
Mr. Mark Ashby is a fact witness called by plaintiff. Mr. Ashby is employed by Fluor as a government contracts administrator, Tr. 833:3-12 (Ashby), a role in which Mr. Ashby facilitated communication with the government’s contracting officer, see id. at 833:14-18, 834:8-15.
Mr. Kenneth T. Beck is a fact witness called by defendant. During the period of time relevant to this case, Mr. Beck was the owner of Goodrich Equipment, see Tr. 1722:16-19 (Beck), a subcontractor employed by Group Contractors to conduct clearing, grubbing and stripping of topsoil from the Leased Property, id. at 1726:24-1727:10, and to dig drainage ditches, see id. at 1734:22-24.
Mr. Robert H. Benton, Jr. is a fact witness called by defendant. During the period of time relevant to this case, Mr. Benton was an employee of D. Honoré Construction, see Tr. 3301:15-24 (Benton), the company hired as Fluor’s general contractor for the Grand Acadian project, Tr. 302:2-3 (MeConnaugh-hay). Mr. Benton served as project manager for the Grand Acadian project, a role that “mainly foeus[ed] on the office end of the project,” id. at 3303:7-3304:5.
Ms. Heather Berg is a fact witness called by defendant. During the period of time relevant to this case, Ms. Berg was employed as an environmental scientist by TRS, a subsidiary of Fluor. See Tr. 3838:11-18 (Berg). Ms. Berg’s responsibilities included conducting environmental assessments, preparing stormwater pollution prevention plans and ensuring compliance with health and environmental regulations.84 See id. at 3838:22-3839:1.
Mr. Ronald Billedeaux is a fact witness called by defendant. During the period of time relevant to this ease, Mr. Billedeaux was the owner of AAA Construction, the company hired by Mr. McConnaughhay to clear and grub Grand Acadian’s sixty-acre property. See Tr. 2960:2-17 (Billedeaux).
Mr. David Anthony Boseeker is an expert witness for plaintiff. Mr. Boseeker holds degrees in geology and civil engineering from the University of. Illinois, Tr. 659:12-14 (Bo-seeker), and is a registered professional engineer in the state of Texas, id. at 664:16-18. The court recognized Mr. Boseeker as an expert “in geotechnical matters, -with respect to the composition of subsurface soils,” but did not recognize Mr. Boseeker as an expert in estimating the cost of restoring land thought to be damaged. Tr. 668:12-17 (court). Mr. Boseeker’s firm was hired by FEMA to work on the Leased Property, see Tr. 668:21-24 (Boseeker), but Mr. Boseeker was called as a witness by plaintiff, who subpoenaed him to testify, see Grand’s Mot. for Leave to Seive Subpoena Upon Witnesses Who Reside More than 100 Miles from the Place of Trial, Dkt. No. 127, at 1.
*514Mr. Christopher A. Cloud is a fact witness called by defendant. During the period of time relevant to this case, Mr. Cloud was employed as a project manager by P2S, a subsidiary of Fluor. See Tr. 2868:24-2869:7 (Cloud). Mr. Cloud supervised the P2S employees working on the Leased Property, id. at 2869:19-2870:3, and visited between eight and fourteen times to check on their work, id. at 2872:25-2873:6.
Mr. Gary Couret is a fact witness called by defendant. Mr. Couret is a botanist employed by the Corps to perform “wetland determination and delineation[ ] for purposes of Section 404 under the Clean Water Act” and for purposes of enforcement. Tr. 1655:16-1656:2 (Couret). Mr. Couret reviewed Grand Acadian’s wetlands determination request, id. at 1657:6-25, and conducted a site visit on September 21, 2004, see id. at 1659:7-21.
Mr. Stephen M. DeBlasio, Sr. is a fact witness called by defendant. During the period of time relevant to this case, Mr. DeBla-sio was a division director in the FEMA regional office in New York City. See Tr. 1607:5-9 (DeBlasio). Mr. DeBlasio traveled to the area affected by Hurricane Katrina and served as the Housing Area Command logistics support representative, a role that required him to “ensure that the appropriate number of manufactured housing units, park models and travel trailers were procured and delivered to the Gulf Coast area.” Id. at 1607:9-18. Mr. DeBlasio coordinated “procurement, delivery, receipt, accounting and storage [and] staging of all the units for both Mississippi and Louisiana.” Id. at 1607:24-1608:2. When FEMA came under pressure to secure more housing for hurricane victims in Louisiana, Mr. DeBlasio was appointed the housing officer in FEMA’s joint field office in Baton Rouge, Louisiana. See id. at 1611:11— 22.
Mr. Evarist Joseph (E.J.) Dennis, III is an expert witness for plaintiff. Mr. Dennis is an arborist licensed by the states of Mississippi and Louisiana and has taken a number of classes in his field. See PX 519 (Dennis Resume) 1-4. Mr. Dennis describes his current position as “Owner and operator of E.J. Dennis and Associates, Inc.” Id. at 4. The court qualified Mr. Dennis as an expert witness in “tree health” and “tree appraisal.” Tr. 3767:8-10 (court).
Mr. Lamar Dousay is a fact witness called by defendant. During the period of time relevant to this case, Mr. Dousay was employed as a foreman by P2S, see Tr. 2890:24— 2891:7 (Dousay), a Fluor subsidiary, Tr. 2869:1-5 (Cloud). Mr. Dousay’s supervisor was Mr. Cloud. Tr. 2891:17-19 (Dousay). Mr. Dousay can be seen operating equipment in photographs of the work performed by P2S on the Leased Property. See, e.g., JX 63 (Sept. 2006 Photos) 1442; ef. Tr. 2894:11-13 (Dousay) (identifying himself in same).
Mr. Mai’k A Fontenot is a fact witness called by plaintiff. Mr. Fontenot is the owner of MSK Enterprises. Tr. 956:6-7 (Fonte-not). After Grand Acadian’s sixty-acre property had been divided, MSK Enterprises was hired as a subcontractor to excavate and place sediment to create ponds and roads on the Non-Leased Property. See id. at 958:23-959:25.
Mr. Kevin P. Gourgues is a fact witness called by defendant. Mr. Gourgues is employed by Group Contractors, Tr. 1781:11-14 (Gourgues), a subcontractor hired by Honoré, id. at 1802:13-17. Mr. Gourgues visited the Leased Property at “at least five or six times” during the Grand Acadian project. Id. at 1806:22-24.
Mr. Edward A Hudson is a fact witness called by plaintiff. Mr. Hudson owns the Summit Group, see Tr. 3208:11-3209:1 (Hudson), a data collection service for engineers, id. at 3245:6-9; see also Tr. 3419:24-25 (Krielow) (describing the Summit Group as a “testing lab that gathered the samples and did some classifications”). In June 2005 Mr. Hudson performed soil borings at the Grand Acadian’s sixty-acre property, see Tr. 3245:10-21 (Hudson), and provided the results of his observations to Mr. Ronald Jones, an engineer hired by plaintiff to assist with the planning of its RV park, see Tr. 877:1-10 (Jones); cf. JX 5 (First Summit Report) (describing Mr. Hudson’s observations to Grand Acadian). Mr. Hudson provided Grand Aca-dian with the results of additional soil bor-*515ings on October 6, 2006. See PX 52 (Second Summit Report).
Dr. Herman H. Jarboe is a fact witness called by defendant. Dr. Jarboe, a biologist, is a water resource planner with the Corps and a subject matter expert in ecosystem restoration. Tr. 1128:19, 1130:2-5 (Jarboe). Dr. Jarboe aids “in the planning of projects that are related to the water resource activities of the Corps.” Id. at 1130:12-15. After Hurricanes Katrina and Rita, Dr. Jarboe was a member of a team that “evaluat[ed] sites for temporary housing facilities.” Id. at 1131:7-13. Dr. Jarboe is not an expert in geotechnical matters. Id. at 1131:20-22. His role was to review potential housing sites and evaluate “natural resource conditions and the overall state of the site in regards to natural resources.” Id. at 1132:13-21.
Mr. Ronald H. Jones is an expert witness for plaintiff. Mr. Jones holds bachelor’s and master’s degrees in civil engineering from Tulane University and is an engineer licensed by the state of Louisiana and specializing in geotechnical engineering. Tr. 874:2-11 (Jones). Mr. Jones is the owner of CBK Soils Engineering, Inc. See id. at 874:22-24. Mr, MeConnaughhay hired Mr. Jones “to do engineering recommendations for the roadways, parking lots and RV pads” for Grand Acadian’s RV park — a project for which, using test data from soil borings collected by Mr. Hudson, Mr. Jones produced a report on July 25, 2005. Id. at 877:1-17; see also JX 10 (CBK Report). The court recognized Mr. Jones “as an expert in the field of geotechnical engineering, recognizing [that,] in this ease[,] he’s likely to speak about soils.” Tr. 875:18-21 (court).
Ms. Science Kilner is a fact witness called by defendant. During the period of time relevant to this case, Ms. Kilner was a regional environmental officer for FEMA and was deployed after Hurricane Katrina to Baton Rouge, Louisiana as deputy environmental liaison officer for housing to support FEMA’s temporary housing mission. See Tr. 1765:21-1766:17 (Kilner). Ms. Kilner’s role was to conduct environmental reviews, which she described as ensuring compliance with a suite of environmental and historic preservation laws triggered by federal action. See id. at 1766:21-1767:12.
Mr. Carl J. Krielow is an expert witness for defendant. Mr. Krielow is a contractor licensed by the states of Louisiana and Mississippi, Tr. 3410:10-13 (Krielow), and currently owns two construction companies, id. at 3410:14-23. Mr. Krielow has been involved in construction since 1978, primarily working on public works projects that “entail clearing, grubbing, excavation, embankment, [and] road construction.” Id. at 3405:9-16. Mr. Krielow has constructed several RV parks at state campgrounds, certain of which involved the use of soil cement for stabilization beneath roads. Id. at 3408:21-3409:13. Mr. Krielow has experience constructing drainage and completing cost estimates for remediation of property by replacing unsuitable soils with select fill. See id. at 3410:24-3413:18. The court qualified Mr. Krielow “as an expert in construction practices and construction cost estimation.” Tr. 3415:5-8 (court).
Mr. John Lowery is a fact witness called by defendant. Mr. Lowery is a employed as a senior project engineer by Laneon Engineers, a firm retained by Grand Acadian in April 2006 to provide a cost estimate to perform certain restoration work on the Leased Property. Tr. 2927:17-2928:9 (Lowery).
Mr. John Patrick (Pat) MeConnaughhay is a fact witness called by plaintiff. Mr. MeConnaughhay is a shareholder of Grand Acadian and serves as both its president and a member of its board of directors. See MeConnaughhay Dep. 8:18-9:1, Oct. 28, 2008. Mr. MeConnaughhay was on Grand Acadi-an’s property “[v]ery close to every day and most of the day.” Tr. 141:18-20 (MeCon-naughhay).
Mr. Clint McDowell is a fact witness called by defendant. Mr. McDowell is an engineer licensed by the state of Louisiana and is the owner of Site Engineering, Inc. (SEI), which “provide[s] geotechnical engineering and materials testing services.” Tr. 2805:13-20 (McDowell). SEI was hired by Honoré to “determine the extent of soft ... unstable soils on the” Leased Property. Id. at *5162806:8-14; see also JX 41 (SEI Preliminary Report); JX 44 (SEI Report).
Mr. Billy R. Prochaska is an expert witness for plaintiff. Mr. Prochaska is a geo-technical engineer and holds a bachelor’s degree from the University of Louisiana at Lafayette and a master’s degree in engineering from the University of Florida. Tr. 1209:6-1210:5 (Prochaska). Mr. Prochaska has never worked as a contractor. Id. at 1213:17. The court recognized Mr. Proehas-ka as an expert in the field of geotechnical engineering, see Tr. 1211:14-16 (colloquy between court and plaintiffs counsel), but advised the parties that the court would sustain objections to testimony by Mr. Prochaska related to construction, see Tr. 1214:16-24 (court).
Mr. David Scott Rothkamm is a fact witness called by defendant. Mr. Rothkamm was employed by Fluor as the site manager at the Leased Property, Tr. 733:22-23 (Roth-kamm), a position in which Mr. Rothkamm’s role was “[t]o assure the project gets built within budget and on time,” id. at 735:19-21. Mr. Rothkamm monitored the progress made by subcontractors and passed “any engineering issues that arose ... up the ladder.” Id. at 736:16-19.
Mr. Gerald Matthew Rottinghaus is a fact witness called by plaintiff. Mr. Rottinghaus became a contracting officer for FEMA in August 2006 and was assigned to review the Grand Acadian claim. Tr. 1055:16-19 (Rot-tinghaus).
Mr. Joseph Robert Samnik, Jr. is an expert witness for defendant. Mr. Samnik is an arborist certified by the International Society of Arboriculture. Tr. 3609:21-24 (Sam-nik). The court qualified Mr. Samnik “as an expert in the field of arboriculture.” Tr. 3615:16-17 (court).
Ms. Ramona Van Cleve is a fact witness called by plaintiff. Ms. Van Cleve held several positions with FEMA after Hurricanes Katrina and Rita, including director of the area field office and housing officer for temporary housing units. See Tr. 560:6-561:8 (Van Cleve). Ms. Van Cleve visited the Grand Acadian site “two or three times,” with the first visit occurring on February 10, 2006. Id. at 561:23-562:3.
Mr. Timothy Wilson is a fact witness called by plaintiff. Mr. Wilson is an employee of Fluor and served as construction manager on the Leased Property, see Tr. 798:25-799:16 (Wilson), from approximately August to September 2006, see id. at 799:23-800:10. During this time, Mr. Wilson “oversaw the [stormwa-ter] remediation efforts on the property.” Id. at 800:11-15.
Mr. Leo Brent Wofford is a fact witness called by defendant. Mr. Wofford is a manager at Kinder Timber Company, LLC, the company hired by Mr. McConnaughhay to log Grand Acadian’s property. See Tr. 3019:13-3020:8 (Wofford).
APPENDIX B
Table of Contents
I. Background.451
II. Legal Standards. LO LO
A. Breach of Contract. LO LQ
B. Normal Wear. CO ho
C. Fraud and False Claims. CO LO
1. False Claims Act (FCA). CO hO
2. Antifraud Provision of the Contract Disputes Act (CDA). to
3. Forfeiture of Fraudulent Claims Act (FFCA). CO ho
III. Overview of Evidence. 4^ CR 00
A. Grand Acadian’s Soil Sampling, Clearing and Logging Activities, and Construction Before the Arrival of the Government’s Contractors. 4^-Cn CO
1. Wetlands Determination and Clean Water Act Permit... 4^ Ci O
2. The First Summit Soil Boring Report/Mr. Hudson. 4^ C5 H-4
*5173. The CBK Engineering Report/Mr. Jones CD
4. Clearing, Logging and Hurricanes. CO CD
5. Grand Acadian’s Construction Activities on the Non-Leased Property O ^
a. Removing Debris, Logging and Clearing. O ^
b. Construction of the Center Road, Blockage of Drainage. t-1 C- ^
B. The Hurricanes, the Government’s Evaluation of Grand Acadian’s Property for Temporary Housing, and the Lease. cq
1. Hurricanes Katrina and Rita. cq ^
2. The Government’s Evaluation of Grand Acadian’s Property for Temporary Housing. co o
3. The Lease. t-
C. The Condition of the Soil on the Leased Property at the Beginning of the
D. The Government’s Construction Activities and Soil Sampling.477
1. Fluor’s Arrival, Establishment of Drainage and Completion of Clearing.477
2. The SEI Soil Boring Report .479
3. The Order to Stop Work.480
4. Soil Replacement Cost Estimate by Mr. Lowery.481
5. Restoration Analysis by Mr. Bosecker.-.482
6. Fluor’s Storm water Remediation.484
7. The Second Summit Soil Boring Report.485
8. Restoration Analysis by Mr. Prochaska.489
a. Test Pits and Trench.489
b. Soil Borings.490
IV. Disposition of Grand Acadian s Claims. CS
A. Grand Acadian’s Claim for Soil Replacement Ci ^
1. Soil Replacement Evidence Overview... ^
a. The Parties’ Arguments Regarding the Condition of the Leased Property at the Beginning of the Lease. Mix CO
b. The Parties’ Arguments Regarding the Condition of the Leased Property at the End of the Lease. Mix CO co
2. Additional Contentions by Plaintiff Do Not Support Soil Replacement CO Oi
a. The Government’s Cancellation of Construction Does Not Support Grand Acadian’s Claim for Soil Replacement. Mix CO Oi
b. Comparison to Construction Activities on the Non-Leased Property Does Not Support Grand Acadian’s Claim for Soil Replacement. M^ CO 00
e. Purported Admissions by Fluor and Government Personnel Do Not Support Grand Acadian’s Claim for Soil Replacement M^ co co
3. Any Change in Soil Conditions Was Normal Wear. cn o to
a. Soil Damage that Would Necessarily Result from the Purpose for Which the Leased Property Was Leased Is Normal Wear cn o to
b. Fluor Exercised Reasonable Care in its Activities on the Leased Property. cn o co
B. Grand Acadian’s Claim for Removal of Alterations cn o a*
V. Disposition of the Government s Counterclaims. 508
A Grass.508
B. Trees.510
VI. Conclusion .512
Appendix A — Witnesses Upon Whose Live Testimony the Court Relies.512
Appendix B — Table of Contents.516
. For convenient reference, the court attaches at the end of this Opinion a list with the name, in alphabetical order, and a description of each witness upon whose live testimony the court relies (Appendix A) and a Table of Contents (Appendix B).
. At the conclusion of the trial in Lake Charles, Louisiana, the record remained open at defendant’s request to admit the live testimony of Ms. Heather Berg, a witness called to testify by defendant, who was out of the country at the time of the trial. Grand Acadian, Inc. v. United States, 101 Fed.Cl. 398, 410 (2011). The court heard the testimony of Ms. Berg in a final day of trial in Washington, DC on Thursday, January 5, 2012. See Oct. 27, 2011 Order, Docket Number (Dkt. No.) 154, at 1-2.
. The parties have stipulated that the photographs cited by the court in this Opinion are "true, accurate, and admissible” and have stipulated to the dates that the photographs were taken. See Joint Stip. of Facts (JS), Dkt. No. 108, ¶¶ 78-100.
.Defendant designated portions of two depositions of Mr. John Patrick (Pat) McConnaughhay for admission at trial pursuant to Rule 32 of the Rules of the United States Court of Federal Claims (RCFC). See Def.’s Consent Mot. to Introduce Dep. Testimony of Pl.'s President and Corporate Designee, Dkt. No. 122, at 1. The selected portions were filed on the court’s docket, see Dkt. No. 122-1 (McConnaughhay Dep., May 21, 2010); Dkt. No. 122-2 (McConnaughhay Dep., Oct. 28, 2008), and were admitted into evidence as Defendant’s Exhibit (DX) 27, see Trial Transcript (Tr.) 593:18-22 (court). Several pages of DX 27 that were omitted in error were subsequently admitted as DX 27.1. See Tr. 3746:10-24 (colloquy between the court and counsel).
. Defendant characterizes Joint Exhibit (JX) 49 (Settlement Proposal) as "an uncertified ‘claim for damages.’ ” Def.’s Post-Trial Mem. of Facts and Law (Def.'s Br.), Dkt. No. 188, at 56. Because it is immaterial to the outcome of this action whether JX 49 is a settlement proposal or an uncertified claim for damages, the court makes no finding of fact on this issue. JX 49 was offered into evidence by defendant without objection. See Tr. 597:15-20 (colloquy between Mr. McConnaughhay, the court and defendant’s counsel).
. The court refers to exhibits that lack clear or consistent pagination by the final four digits of the Bates number appearing at the bottom of the referenced page.
.The cost estimate divided Grand Acadian's restoration claim into the following construction-related components: (1) undercut the East Ditch by one foot and backfill with compacted material ($112,674); (2) undercut the South Ditch by one foot and backfill with compacted material ($94,-977); (3) undercut the retention pond by one foot and fill with compacted material ($197,237); (4) undercut the surface of the Leased Property by four feet and backfill with compacted material ($3,433,780); (5) replace 150 trees ($150,000); (6) ‘'hydroseed” thirty acres of grass ($120,000); and (7) de-water soil ($225,000). See JX 59 (Second Certified Claim) 0010; cf. infra Part III.D.l (describing Fluor's construction of the East Ditch, the South Ditch and the retention pond).
The cost estimate also included a 20% project contingency fee ($866,734); a "Topographic and Property Survey” ($20,000); a "Resident Project Representative” for one year ($93,600); and engineering fees ($435,380). See JX 59 (Second Certified Claim) 0010.
. There is no dispute that the government paid rent for the one-year term of the Lease. "The Government paid Grand Acadian one full year’s rent, a total of $252,262.50, pursuant to the terms of the lease contract.” JS ¶ 71.
. The parties’ pleadings contain sections with numbered paragraphs and sections without numbered paragraphs. See, e.g., First Am. Compl. (Am. Compl.), Dkt. No. 8, at 3; Def.'s Third Am. Answer, Affirmative Defenses, and Counterclaims (Answer), Dkt. No. 74, at 33. The court cites to the numbered paragraph(s) or, for material not in numbered paragraphs, to the page number®.
. Grand Acadian has withdrawn its $1,000,000 claim for remediation of silt runoff. See Tr. 3844:13-16 (plaintiff’s counsel) (stating that the *454claim regarding "the silt in the bayou ... [] has been withdrawn”); Tr. 3845:2-3 (plaintiff's counsel) ("We withdrew the claim for the silt in the bayou....”).
Further, because Grand Acadian presented no evidence at trial and made no argument in its pretrial or post-trial briefing regarding its $2,040,000 claim "for loss of revenue, increased construction cost and increased cost of borrowing,” Am. Compl. ¶ 178, the court also views this claim as withdrawn.
. Defendant also raised the affirmative defenses of release, based upon an agreement signed by plaintiff "that holds the Government harmless for any damages to plaintiff's property and releases any and all claims arising out of any activities of the Government on the property.” Answer ¶ 183. The court has found as a matter of law that, notwithstanding this agreement, the government had a duty, pursuant to the lease (the Lease) "to restore the Property to its pre-Lease condition.” Grand Acadian, Inc. v. United States (2009 SJ Op.), 87 Fed.Cl. 193, 208-09 (2009).
Even given the plethora of evidence adduced at trial, the government did not file counterclaims or raise affirmative defenses based upon Grand Acadian’s interference with drainage from the Leased Property or the condition in which the Leased Property was delivered at the commencement of the Lease term. Cf. infra Parts III.A.4-5 (describing Grand Acadian’s construction on the Non-Leased Property and its interference with drainage from the Leased Property).
. In its briefing on the parties’ cross motions for summary judgment, Grand Acadian relied upon certain statements made by Mr. McCon-naughhay in an affidavit. 2009 SI Op., 87 Fed. Cl. at 204. Noting that Mr. McConnaughhay had provided contradictory testimony in a deposition and that plaintiff had failed to explain discrepancy, the court disregarded Mr. McConnaughhay’s affidavit. Id. at 203-07. Whether intentionally or unintentionally, Mr. McConnaughhay has continued to be a source of inconsistent and inaccurate information, both to those sent to evaluate the Leased Property, see infra Part III.D.5 (discussing Mr. McConnaughhay’s representation to Freese & Nichols personnel that the Leased Property and Non-Leased Property had been modified in the same manner before Fluor’s arrival), and to the court, see infra n. 38 (discussing Mr. McConnaughhay’s testimony that Grand Acadian dug a drainage trench between the Leased Property and a road that Grand Acadian built on the Non-Leased Property).
. The False Claims Act (FCA) was amended on May 20, 2009. See Fraud Enforcement and Recovery Act of 2009, Pub.L. No. 111-21, sec. 4(a), 123 Stat. 1671, 1621 (to be codified at 31 U.S.C. § 3729). The amendments applicable to presentation of false or fraudulent claims "apply to conduct on or after the date of enactment.” Id. sec. 4(f). Because Grand Acadian submitted its certified claims to the government in 2006, see JS ¶¶ 61-62, 64, the amendments do not apply to the government's counterclaim for presentation of a false or fraudulent claim.
. The FCA provides for a statutory penalty of “not less than $5,000 and not more than *457$10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990.” 31 U.S.C. § 3729(a)(1) (2006). The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub.L. No. 101-410, 104 Stat. 890, as amended by subsequent legislation, directs the head of each federal agency, at least once every four years, to "(1) by regulation adjust each civil monetary penalty provided by law within the jurisdiction of the Federal agency ...; and (2) publish each such regulation in the Federal Register.” 28 U.S.C. § 2461 note (2006). The civil monetary penalty associated with the FCA, as adjusted for inflation, is codified at 28 C.F.R. § 85.3(a)(9) (2011). See 28 C.F.R. § 85.3(a)(9).
. Congress recently amended the Contract Disputes Act (CDA) and enacted it into positive law. See Act of Jan. 4, 2011, Pub.L. No. 111-350, 124 Stat. 3677 (the CDA amendment). The only effect of the CDA amendment as it relates to this case is the relocation of the provisions of the ' CDA from 41 U.S.C. §§ 601-13 (2006) to 41 U.S.C. §§ 7101-09. See id. §§ 7101-09.
"[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_” Id. sec. 2(b). Consistent with this goal, Congress did not change the substantive law of the CDA as it relates to this case. Compare 41 U.S.C. § 604 (2006) ("If a contractor is unable to support any part of his claim and it is determined that such inability is attributable to misrepresentation of fact or fraud on the part of the contractor, he shall be liable to the Government for an amount equal to such unsupported part of the claim in addition to all costs to the Government attributable to the cost of reviewing said part of his claim.”), with 41 U.S.C.A. § 7103(c)(2) (West 2012) ("If a contractor is unable to support any part of the contractor’s claim and it is determined that the inability is attributable to a misrepresentation of fact or fraud by the contractor, then the contractor is liable to the Federal Government for an amount equal to the unsupported part of the claim plus all of the Federal Government’s costs attributable to reviewing the unsupported part of the claim.”).
. See supra Part I (describing the court’s holding that "planned additions, improvements and alterations are not themselves normal wear," under the Lease and that the government was required to fill and grade these structures at Grand Acadian's election). But see infra Part IV.B (finding that, because previously unavailable evidence presented at trial establishes that the retention pond, the East Ditch and the unfilled portions of the South Ditch were left in place, at the recommendation of state regulators, to control stormwater, the government was not required by the Lease to remove them).
. The dimensions of Grand Acadian's property are approximately 1,325 feet from east to west and 1,975 feet from north to south. See JX 4 (Wetlands Determination) 2.
. A root rake is a piece of equipment attached to the blade of a bulldozer to collect organic debris from the surface and/or subsurface of the soil. See infra n. 66.
. The Bates numbers at the bottom of each page of Grand Acadian’s wetlands determination request begin with the number ten. See JX 2 (Determination Request) 10.
. The position of the two areas is shown on a wetlands determination map, see JX 4 (Wetlands Determination) 2, derived from a map created by Mr. Shawn Mays, see Tr. 1664:24-1665:5 (Cour-et). After visiting Grand Acadian’s property, see id. at 1659:7-21, Mr. Gary Couret called Mr. Mays and both agreed that Mr. Mays had drawn the features of the map related to wetlands upside down, see id. at 1697:18-24. Mr. Couret "changed the north arrow 180 degrees” before including the map in the Corps’ wetlands determination. Id. at 1665:10-12; cf. id. at 1664:4-23 (agreeing that the corrected map "accurately reflect[s]” the location of wetlands on Grand Aca-dian’s property).
. The court denied the proffer of Mr. Edward A. Hudson as an expert witness but permitted him to testify as a lay witness regarding his observations and the information he provided to plaintiff’s expert witness in geotechnical engineering, Mr. Ronald H. Jones. See Tr. 3209:4-3215:13 (colloquy between Mr. Hudson, the court and counsel); cf. id. at 3220:8-22 (the court sustaining an objection to testimony by Mr. Hudson regarding the suitability of the soil on Grand Acadian's property to development). Accordingly, Mr. Hudson was permitted to explain the measurements he had included in his report, for instance, the depth of the stiff clay base on the *462Leased Property. See, e.g., Tr. 3218:18-3219:7 (Hudson). Similarly, over plaintiff's objection, Mr. Clint McDowell was permitted to testify. See Tr. 2816:13-2817:5 (colloquy between Mr. Hudson, the court and counsel). Where interpretation of Mr. Hudson and Mr. McDowell’s observations requires "scientific, technical, or other specialized knowledge,” see Fed.R.Evid. 701(c), for example, to determine construction procedures necessary to prepare the Leased Property for construction or the suitability of different soil types for use in construction, the court relies upon the testimony of the witnesses qualified by the court as experts.
.Soil cement is a mixture of soil and cement, poured over structural fill to create a base for pavement. See Tr. 895:11-24 (Jones); infra Part III.A.3 (discussing the recommendations Grand Acadian received for the construction of paved areas).
. To determine the organic content of soil through laboratory testing, a soil sample is placed in a furnace to burn off the organic material. See Tr. 3356:3-3357:23 (Arnold). The sample is weighed before and after it is placed in the furnace to determine the change in weight. See id.
. The table also describes the liquid limit, plastic limit and plasticity index of each sample. See JX 5 (First Summit Report) 2602.
. In contrast, during the government’s construction efforts, Site Engineering, Inc. (SEI) collected thirty soil borings on the Leased Property at regular intervals in a grid pattern and subjected sixteen of these soil borings to laboratory analysis, see infra Part III.D.2 (describing the SEI Report), an approach that Mr. McDowell agreed was "standard practice," Tr. 2845:22-2846:4 (McDowell).
. Because Mr. Jones did not mention Grand Acadian’s wetlands determination in the CBK Report or in his trial testimony, there is no evidence that Mr. Jones was aware that Grand Acadian’s property contained wetlands or that Mr. Jones determined that the soil samples collected by Mr. Hudson were or were not representative of wetland portions of Grand Acadian's property.
. Mr. Jones testified that there is greater variation in subsurface conditions when the soil has been disturbed. See Tr. 891:19-893:10, 924:13-20 (Jones). Because the soil layers present on the Leased Property are "flood plain deposits,” the characteristics of each layer are relatively predictable and can be confidently incorporated into design recommendations. Id. at 892:8-893:1. By contrast, when the clay subgrade has been disturbed, its characteristics are less predictable, which undermines the confidence with which an engineer can make design recommendations. See id. at 893:2-5.
. Mr. Jones testified that the organic content would be particularly high in approximately the uppermost eight inches of soil. See id. at 939:2-11, 903:23-904:6. At several points in his testimony, Mr. Jones appeared to suggest that any silty soil beneath eight inches in depth might be found suitable for use in construction. See, e.g., id. at 893:11-894:6.
. Plaintiff presented the testimony of three expert witnesses in geotechnical engineering: Mr. Jones, Mr. Billy R. Proehaska and Mr. David Anthony Boseeker. See infra App. A (Table of Witnesses).
.At his deposition, Mr. Proehaska testified as follows regarding the testing of silty soil:
Question: So before you can use the silty soil you have to test it and see if it is indeed — if it contains too much of this deca[yed] organic material in addition to these big pieces that you're talking about[?]
Answer: That’s right.
*466Question: And you would have to do that on any site that you were developing for a silty soil like this.
Answer: That’s right.
Question: And at times, the naturally occurring organic material in a site like this could potentially disqualify that silty soil as suitable for use with soil cement, isn’t that correct?
Answer: That’s correct. And not only that, ... the proportions of silt, clay and sand in your soil have to be right for soil cement. So it would take a series of grain size analyses over the site to see if it’s generally acceptable.
Tr. 1323:18-1324:18 (Prochaska) (acknowledging prior deposition testimony). Before this portion of his deposition was read, Mr. Prochaska contradicted his deposition testimony, stating that the suitability of the soil types on Grand Acadi-an’s property had been determined by the United States Department of Agriculture (USDA) in a 1988 soil survey. I’d. at 1316:9-25. The implication of Mr. Prochaska’s trial testimony (given prior to his review of his deposition testimony) was that no further testing of the soil on the Leased Property would be required before the silty soil was used for soil cement. Neither party specifically pointed out at trial the portions of the referenced USDA soil survey relied upon by Mr. Prochaska. See Tr. 3352:5-3356:2 (Arnold) (briefly discussing, at the only point during which the referenced USDA soil survey was specifically pointed out at trial, the drainage characteristics of Guyton-Messer and Kinder-Messer soil complexes); LX 53 (Excerpts from USDA Soil Survey). In light of the unexplained contradiction in Mr. Prochaska’s testimony, the court will discount Mr. Prochaska’s trial testimony that testing conducted by the USDA of the soil types present on Grand Acadian's property makes further testing unnecessary.
. Before reviewing the time sheets, Mr. Ronald Billedeaux recalled that AAA Construction (AAA) had used two or three bulldozers on Grand Aca-dian's property. See Tr. 2962:26-2963:2 (Bille-deaux). Because Mr. Billedeaux stated "I don’t remember” before making this estimate, see id. at 2963:1, the court concludes that the time-sheets provide a more accurate account of the number of bulldozers that AAA used.
. Mr. Billedeaux testified that Mr. McCon-naughhay marked the trees that AAA was to leave standing to be logged. Tr. 2961:18-23 (Bille-deaux). Because other witnesses testified that trees marked by with a white ribbon were to remain for aesthetic purposes rather than be logged, see Tr. 3036:8-16 (Wofford); Tr. 102:25-103:4 (McConnaughhay), and because the parties have stipulated that AAA cleared trees six inches in diameter and smaller, see JS ¶ 7, it appears that Mr. Billedeaux may have remembered this detail incorrectly.
.This figure, based upon the court’s calculation from information’ provided in Kinder Timber's records, see JX 14 (Landowner Payment Forms) 1-2, is slightly lower than the figure of "just over 1,100 tons” calculated by defendant’s counsel at trial, Tr. 513:12-514:2 (colloquy between Mr. McConnaughhay and defendant’s counsel).
. Mr. McConnaughhay explained the balance between burning material and hauling it off site as follows:
*471[A] lot of things just don’t bum.... So[,] you can either sit there and just keep trying to bum them, which prevents you from working in that area, because you have debris there, piles of debris. Or to move on with the project — eventually we were running out of room. We needed to work. You know, and so it’s — it's more cost effective, instead of holding all your crews up, just to haul it off, even though it costs to haul it off.
Tr. 640:11-20 (MeConnaughhay).
. The reason that Grand Acadian ceased work on the Non-Leased Property was not squarely addressed at trial and the parties do not contend that it is material to the resolution of this action.
. None of plaintiff's expert witnesses in geo-technical engineering contradicted Mr. Carl J. Krielow’s analysis. Mr. Prochaska did not analyze the effect that Grand Acadian’s work on the Non-Leased Property had on the drainage of the Leased Property, Tr. 1308:22-1309:1 (Prochas-ka), and Mr. Bosecker did not mention the Center Road in his testimony. Mr. Jones described his recommendation that clay excavated from planned “lake features’’ be used to raise the elevation of road beds to create drainage and prevent pavement failure, Tr. 933:1-935:18 (Jones), but did not testify regarding the effect on the drainage of the Leased Property of building a road between the Leased Property and the Non-Leased Property.
. The court is unable to determine whether several very small, dark spots on the photograph are standing water or burn piles. See JX 17 (Sept. 31, 2005 Aerial Photo). If the spots are burn piles, there is no standing water visible in the photograph.
Although there was little or no standing water on the surface of Grand Acadian’s property, the soils just below the surface may have been wet, as they were in many areas when Grand Acadi-an’s engineering specialist, Mr. Mays, sampled them for Grand Acadian’s wetlands determination request. See supra Part III.A. 1.
. Relying upon portions of the trial testimony of Mr. McConnaughhay and Mr. Mark A. Fontenot, the owner, Tr. 956:6-7 (Fontenot), of one of the subcontractors that worked on the Non-Leased Property, see id. at 958:23-959:25, Grand Acadi-an argues that "Grand Acadian did not dam up the FEMA side,” Pl.'s Resp. in Opp’n to the Gov’t's Post-Trial Mem. of Facts and Law (Pl.'s Resp.), Dkt. No. 193, at 14 (emphasis omitted). The portion of Mr. Fontenot’s testimony quoted by Grand Acadian, however, supports the proposition that construction of a road can obstruct drainage: " 'Q Would a road along the center with clay build up act as a dam between the two sides of the property? A If there’s not a ditch cut along there, yeah.’ ” Id. at 14 n. 37 (quoting Tr. 976:7-11 (Fontenot)). Mr. Fontenot did not testify that a ditch was dug next to the Center Road.
In the portion of Mr. McConnaughhay's testimony quoted by Grand Acadian, Mr. McCon-naughhay stated that Grand Acadian dug a ditch next to the Center Road, placing the dirt in conical piles to allow water to flow around the piles and into the ditch. See id. at 14 n. 38 (quoting Tr. 135:13-136:7 (McConnaughhay)). At trial, Mr. McConnaughhay pointed out the conical piles on an aerial photograph or photographs taken on December 15, 2005. Cf. Tr. 134:13-136:24 (McConnaughhay). The conical piles indicated by Mr. McConnaughhay, however, continue for only a short distance along the northerly portion of the Center Road, and water can be seen pooled against the Center Road south of the piles, indicating that the ditch was insufficient to mitigate the obstruction by the Center Road of drainage from the Leased Property. See JX 34 (Dec. 15, 2005 Aerial Photos) 2445-49.
. Mr. Stephen M. DeBlasio, Sr. testified that FEMA housed hurricane victims in travel trailers, "park model units” and “full manufactured housing units." Tr. 1609:9-24 (DeBlasio).
. Mr. McConnaughhay explained that, to comply with the Corps’ mitigation requirements, Grand Acadian was required to offset the impact to the wetlands Grand Acadian was developing by paying for the purchase of land located elsewhere in a "mitigation land bank” and the planting of trees on the purchased land. See Tr. 67:1-69:22 (McConnaughhay).
. Because it is not clear from the parties’ briefing and the evidence presented at trial exactly which of Fluor’s corporate entities was involved with construction on the Grand Acadian property other than Fluor’s subsidiary, P2S, the court, when discussing any Fluor entity other than P2S, refers to Fluor.
In its briefing, the government capitalizes all of the letters in the word "FLUOR” when referring to the actions of both Fluor and its subcontractors. Def.’s Br. 25. In its briefing and pleadings, Grand Acadian at times capitalizes all of the letters in the word "FLUOR,” as well as the names of parties and other terms. See, e.g., Am. Compl. 1 (capitalizing all of the letters in the words "GRAND ACADIAN” and "LEASE”), 3 (capitalizing the word "FLUOR"), 4 (capitalizing all of the letters in the word "SITE”), 8 (capitalizing all of the letters in the words "FEMA WEST-HALF” and "GRAND EAST-HALF”). For clarity and consistency, the court has replaced the parties’ use of capitalization with standard capitalization in its quotations from and references to the parties' briefing.
.The lease at issue in this case (the Lease) includes several documents. The court cites to each document using the original pagination and paragraph numbering within each document. The court refers to the first two pages of the Lease as the "Standard Form Lease,” pursuant *475to legends that appear in the upper left-hand comer of the first page and the lower left-hand comer of the second page. See JX 31 (Standard Form Lease) 1-2. The Standard Form Lease incorporates by reference four documents, including a lease rider (Lease Rider) and a document containing general clauses (General Clauses). See id. ¶ 6.
. The soil borings made by SEI, described below in detail — which, although collected after the Lease began, were made at regular intervals across the entire Leased Property in a grid pattern — appear to be the best evidence of the depth of the clay base on the Leased Property. See infra Part III.D.2. "SEI determined that very soft, water saturated, silty soils appeared to be present in the upper two to four feet of the site *476with an average thickness of about three feet.” JS ¶ 43. Regardless of its average depth, the clay layer varied, "almost like waves through the cross section of the soil.” Tr. 910:12-16 (Jones).
. Dexter Honoré, LLC (Honoré) hired Group Contractors as a subcontractor; Group Contractors hired Goodrich Equipment as a subcontractor. See Tr. 1802:13-22 (Gourgues).
. The temporary drainage ditches addressed not only the water pooled on the surface of the ground but also the subsurface water, which "tends to bleed through the silty topsoil and into the ditches.” Tr. 3537:1-9 (Krielow).
. Each of Fluor’s daily reports contains a section where Honoré described the work it performed and a second section for comments by Mr. David Scott Rothkamm or his site superintendent. See Tr. 740:6-25 (Rothkamm).
. One of the erosion control measures used by Fluor was the construction of berms. Tr. 3897:3-6 (Berg). A berm is "a mound of uncom-pacted dirt.” Tr. 3265:9-13 (Hudson). One berm ran along the eastern side of the Leased Property from Mosswood Road to the retention pond, see Tr. 3890:17-3891:14 (Berg), continuing around the retention pond, see id. at 3894:3-7. A second berm built by Fluor ran east-to-west along the northern side of the Leased' Property. See id. at 3896:19-22.
. Fluor's surveillance reports were maintained by a Fluor employee stationed on the Leased Property and tasked with ensuring that subcontractors complied with Fluor's quality control procedures. See Tr. 758:18-759:20 (Rothkamm). The author of the surveillance reports did not testily at trial.
. The evidence presented at trial did not address whether Fluor filled stumpholes with dirt from the surface of the Leased Property, which could have introduced some organic material. See supra Part III.A.4. The practice of filling stumpholes with dirt from the surface during clearing operations is consistent both with local practice, see Tr. 942:4-11 (Jones), and the activi*478ties of Grand Acadian’s own contractors on the Leased Property, see supra Part III.A.4.
. During the period of time relevant to this case, Mr. Kenneth T. Beck was the owner of Goodrich Equipment, see Tr. 1722:16-19 (Beck), a subcontractor employed by Group Contractors to conduct clearing, grubbing and stripping of topsoil from the Leased Property, id. at 1726:24-1727:10, and to dig drainage ditches, see id. at 1734:22-24.
. The purpose of the temporary road was briefly described at trial. See infra n. 78.
. The SEI Report documents the presence of organic materials in eleven samples. See JX 44 (SEI Report) 6-9. At trial, Mr. McDowell, apparently by mistake, counted ten samples that contained organic material. See Tr. 2856:13-2857:1 (McDowell).
. SETs soil borings were collected with a Shelby tube approximately thirty inches long and three inches diameter. See Tr. 2863:2-8 (McDowell). Although SETs soil borings continued to a depth of six feet, see JS ¶ 43, each sample was composed of multiple "recoveries]” between eighteen and twenty-four inches in length, see Tr. 2863:7-10 (McDowell).
. "Disking” soil is using a truck or tractor to pull a device fitted with several angled disks through the surface of the soil. See Tr. 637:5-638:12 (McConnaughhay).
. Although Mr. Bosecker was hired by (he government to evaluate the Leased Property, see Tr. 660:18-23, 675:2-16 (Bosecker), Grand Acadian called Mr. Bosecker to testify as an expert witness, see Grand's Witness List, Dkt. No. 114-2, at 1; cf. Def.’s Am. List of Trial Witnesses, Dkt. No. 143 (not listing Mr. Bosecker among the witnesses defendant expected to call to testify at trial). The court sustained defendant's hearsay objection, raised in a motion in limine, to the introduction into evidence of Mr. Bosecker’s written reports to the government — which were also employed as expert reports. See Grand Acadian, 101 Fed.Cl. at 404-06.
. The court describes the requirements of the stormwater discharge permits (stormwater permits) issued by the Louisiana Department of Environmental Quality (LDEQ) only as explained by witnesses at trial and solely for the purpose of describing Fluor's actions after the government's order to stop work on the Leased Property.
. Mr. Christopher A. Cloud was employed by P2S as a project manager. Tr. 2868:24-2869:7 (Cloud).
. Silt fences and hay bales prevent erosion by slowing the runoff of rainwater, causing sediment to settle rather than being carried away. See Tr. 3854:4-24 (Berg).
. Erosion control blankets are composed of a fibrous material embedded with grass seeds. See id. at 3855:16-3856:11. The fibrous material absorbs rainwater, preventing erosion,' and the grass seeds sprout, growing through the fibrous material. See id.
. Mr. McConnaughhay testified that he chose the northernmost area of the Leased Property because "this is the area that was allegedly fixed and restored” and he wanted to document its condition. Tr. 448:2-16 (McConnaughhay); see also id. at 447:10-15 (stating same). Mr. McConnaughhay appears to have misunderstood the nature of the remediation P2S performed on the Leased Property, which addressed the requirements of the stormwater permit rather than subsurface conditions. See supra Part III.D.6; Tr. 802:19-23 (Wilson) ("Q During the period that you were there, was part of your job to restore the property? A I was never told to restore the property. What we were trying to do was meet the requirements of the storm water permit.”).
. By contrast, the locations of the soil borings collected by SEI, for instance, were staked at regular intervals in a grid, with slightly more than one soil boring conducted per acre of the Leased Property, LX 44 (SEI Report) 2; see supra Part III.D.2 (describing the SEI Report).
. Mr. Hudson appeared to suggest in his testimony that he was unable to conduct planned soil borings further south because soil conditions were impassable for his truck-mounted augur rig. See Tr. 3227:24-3228:9 (Hudson) (stating that "at that time, I had an old truck augur rig"); id. at 3232:9-14 ("You couldn’t drive a truck out because it was rutting and pumping to the point where the truck would have gotten stuck.”); id. at 3233:2-4 ("So again the site conditions were poor to the point where we could not get where we needed to get to do the borings.”). However, on cross-examination, Mr. Hudson agreed that he collected the samples with a hand augur that is not mounted on a truck and does not require a truck to operate. See id. at 3294:20-3295:8. Mr. Hudson testified that the hand augur is "hand equipment” that weighs two pounds and can easily be carried. Id.
. The fifth and sixth soil borings were collected in a small stand of trees- — described as a buffer area — between the Leased Property and neighboring buildings, that remained undisturbed. See id. at 3241:11-3242:10.
. Mr. Prochaska testified that test pit one "was relatively clear of wood,” Tr. 1301:21-24 (Pro-chaska), and that in test pit two, “there was a limited number” of pieces of wood, id. at 1302:1— 4. Mr. Prochaska did not describe the amount of wood visible in each of the other test pits that penetrated the surface of the soil. Cf. id. at 1302:24-1303:2 (stating that he did not remember the number of pieces of wood in test pit three); id. at 1305:1-16 (stating that he did not know the number of pieces of wood in test pits five, six or seven).
. PX 178 includes both a video recording and photographs. See Tr. 1281:9-10 (plaintiff's counsel) (moving "to admit PX-178, inclusive of the pictures”).
.Mr. Proehaska described the process of root raking debris out of the soil in a portion of his deposition testimony read into the record at trial:
Question: It’s got more organic material in it? Answer: Yeah, it’s got the big stuff in it. It’d have to be gotten out, the limbs and the big stuff.
Question: And how would you go about doing that, getting that material out?
Answer: You’d have to go in with a dozer equipped with a root rake, which is teeth hanging below the blade. It brings that stuff up. And then you’d have to pick it up manually and pile it and then load it in trucks and haul it off. It’s an expensive proposition.
Tr. 1314:8-1315:6 (Proehaska) (acknowledging prior deposition testimony). Grand Acadian performed a similar process of root raking and hauling debris to clear organic material from the soil on the Non-Leased Property. See supra Part III.A.5.a.
. Mr. Proehaska testified that he observed while another individual (not identified at trial) collected the soil borings. See Tr. 1223:6-7 (Prochas-ka).
. Asked a second time by plaintiff’s counsel whether eight soil borings would be sufficient "to give you a comparison" between the Leased and Non-Leased Properties, Mr. Proehaska contradicted himself, stating that eight soil borings would be sufficient. See id. at 1221:20-23.
. Grand Acadian argues that "the subsurface soils of the FEMA west half exist today in substantially the same condition as they were on January 11, 2006, when FEMA's geotechnical engineer recommended that they be removed and replaced.” Pl.’s Br. 16. The court therefore views Grand Acadian’s position to be that any damage to soil of the Leased Property was substantially complete by January 11, 2006.
. In pretrial briefing, plaintiff argued that Fluor’s actions had "lower[ed] the clay base” on the Leased Property. Pl.’s Mem. of Contentions of Fact and Law, Dkt. No. 130, at 13. Plaintiff appears to have abandoned this argument in its post-trial briefing. The contention that Fluor "lower[ed] the clay base” at the Leased Property is without merit. The depth of the clay base is expected to vary, "almost like waves through the cross section of the soil.” Tr. 910:12-16 (Jones). The best evidence of the depth of the clay base is the SEI Report, which concluded that the stiff clay layer was located between two and four feet deep with an average depth of approximately three feet. See supra n. 43. SEI's calculation, based on data collected several days after Fluor's work had begun, see supra Part III.D.2, and after the period during which Grand Acadian contends that any damage to the soil had been done, see supra n. 69, is approximately consistent with the estimates made by plaintiff’s expert witnesses Mr. Prochaska (between two and four feet), Mr. Bosecker (between two and three feet) and Mr. Jones (between one and one-half and two and one-half feet) of the depth of the clay base at the beginning of the Lease — estimates that were made without the benefit of comprehensive soil sampling of the Leased Property, see supra Parts III.A.3, III.D.5, III.D.8 (describing the analyses of Mr. Prochaska, Mr. Bosecker and Mr. Jones).
. Plaintiff contends that the government’s contracting officer, Mr. Gerald Matthew Rotting-haus, pressured Mr. Bosecker to modify his initial conclusions. See Pl.’s Post-Trial Brief (Pl.’s Br.), Dkt. No. 189, at 13 (citing, inter alia, PX 111 (Rottinghaus E-mail)). Mr. Rottinghaus's trial testimony and the e-mail cited by plaintiff establish that Mr. Rottinghaus did not attempt to influence Mr. Bosecker’s opinions, but rather sought to ensure that Mr. Bosecker’s opinions were based upon complete and accurate information.
Mr. Rottinghaus did not believe that Grand Acadian was candid in its responses to his questions regarding Grand Acadian’s claims. Tr. 1126:9-11 (Rottinghaus). In the e-mail cited by plaintiff, which is addressed to Trey Shanks, a Freese & Nichols employee, see id. at ¡100:8-1101:18, Mr. Rottinghaus stated he was concerned about the opinions and conclusions reached by Freese & Nichols "based partially on some information that I had that apparently had not been provided to you,” PX 111 (Rottinghaus E-mail) 1. Rather than pressuring Freese & Nichols to reach different conclusions, Mr. Rotting-haus wrote, "FEMA’s expectation and objective regarding the final [Freese & Nichols] report on the Grand Acadian site [is that] the report be factually correct, void of ambiguities, complete and unbiased, and if conclusions or opinions are stated, there is undisputable evidence or facts that can support all stated opinions or conclusions.” Id. Mr. Rottinghaus requested an explanation of any change in Freese & Nichols’s conclusions. Id.
Mr. MeConnaughhay had, in fact, misrepresented to Mr. Bosecker the scope of work that had been completed on the Non-Leased Property, leading Mr. Bosecker to use the Non-Leased Property as a "reference point.” See supra Part III.D.5. Mr. Rottinghaus’s concern that Mr. Bo-secker was acting on incomplete — and perhaps intentionally misleading — information was therefore well-founded.
. The information that Mr. DeBlasio had received also indicated that the problem with the Leased Property was that the soil was wet and unstable: ''[T]he contractors just could not work the land. It was too wet. They were unable to dewater.” Tr. 1623:10-14 (DeBlasio).
. Furthermore, if SEI had determined that the problem with the soil was not the wet and unstable conditions but the volume of organic material and clay in the silty soil, the solution proposed by SEI would not have been inappropriate. Approximately the uppermost sixteen inches of silty soil were thought to contain, in their natural state, too great a volume of organic material to be appropriate for use as soil cement, and were therefore to be used for non-structural purposes. See supra Part III.A3 (describing the engineering recommendations in the CBK Report). Therefore, additional organic material and clay in the uppermost sixteen inches of soil would not have been problematic, and there would have been no reason for SEI to recommend the time-consuming process of replacing this portion of the soil with fill material brought from elsewhere.
. Furthermore, whether or not the soil work undertaken by Grand Acadian on the Non-Leased Property was successful is a topic not squarely addressed at trial. Mr. McConnaugh-hay testified about construction efforts on the Non-Leased Property, see supra Part IV.A.2.b, and aerial photographs show excavated and graded areas where it appears that Grand Acadi-an was creating roads, parking lots and ponds on the Non-Leased Property before it ceased construction, see JX 75 (Dec. 29, 2006 Aerial Photos) 2069-75; JX 77 (Jan. 29, 2007 Aerial Photos) 2047-49, 2063, 2066, but no comprehensive soil data from the Non-Leased Property was presented at trial. Nor was the reason that Grand Acadian ceased work on the Non-Leased Property addressed at trial. The court sustained objections on the grounds of lack of foundation, hearsay and relevance to certain testimony by Mr. McConnaughhay regarding the cessation of work on the Non-Leased Property. See Tr. 149:2-154:8 (colloquy between Mr. McConnaughhay, the court and counsel).
. Defendant responds that Mr. McConnaughhay "has no personal experience as a construction contractor,” and that Mr. Fontenot "did no work on the leased property, did not walk on the leased property, did not speak with anyone working for Fluor, and had limited knowledge of Fluor’s work on the leased property.” Def.'s Resp. to Pl.’s Post-Trial Mem., Dkt. No. 192, at 13.
Mr. McConnaughhay did not testify at trial to any experience working as a construction contractor. See Tr. 44:4-45:13 (McConnaughhay) (describing his work experience). In a brief portion of his testimony, Mr. McConnaughhay stated that he once "built about a 20-acre development ... put[ting] that project together and man-ag[ing] it” on behalf of an individual who was working out of state, id. at 45:7-13, but did not describe his role in the project or testify that he was involved in construction. Defendant is correct that Mr. Fontenot never walked on the Leased Property during construction or spoke with any of the contractors. See Tr. 965:10-17 (Fontenot).
. Pursuant to an agreement between the parties, Mr. Fontenot was permitted to testify as a percipient witness but was not tendered as an expert witness. See Tr. 955:7-14 (colloquy between the court and counsel). Where Mr. Fonte-not's testimony addressed topics that require "scientific, technical, or other specialized knowledge,” see Fed.R.Evid. 701(c), such as the proper drainage of construction sites, see, e.g., Tr. 962:15-962:19 (Fontenot), the court treats Mr. Fontenot’s testimony as reflecting only his experience establishing site drainage and Mr. Fonte-not’s and Mr. McConnaughhay's state of mind regarding the construction practices used on the Leased Property. To determine whether proper construction practices were used on the Leased Property, the court has relied upon the testimony of the witnesses timely disclosed by the parties and qualified by the court as expert witnesses. See Fed.R.Evid. 702(a) (stating that an expert witness may testify if, inter alia, "the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”).
. In its briefing, plaintiff argues, without citation to evidence, that "[t]he Fluor drainage plan called for temporary ditches across the site that flowed into a retention pond, that flowed into a north/south ditch, that flowed southerly into an east/west ditch, that flowed eastward off of the property and into a natural bayou. Fluor skipped the drainage plan and instead started traversing the site with heavy equipment from the outset.” Pl.’s Resp. 17. Although witnesses described Fluor’s drainage plan for the Leased Property when permanent drainage structures had been completed, see, e.g., Tr. 1346:13-1349:1 (Prochaska), no plan for temporary drainage was entered into evidence or described at trial. Mr. Krielow testified that "in a perfect world,” water would drain from temporary drainage ditches into a retention pond with an outflow that carried water off of the Leased Property. Tr. 3536:14-3537:5, 3538:23-3539:16 (Krielow). In any case, the evidence presented at trial does not indicate that Fluor's temporary drainage ditches and dewatering activities were ineffective in removing water from the Leased Property.
.Grand Acadian does not argue that Fluor’s construction of the temporary road was unnecessary to support Fluor’s drainage, dewatering or clearing activities or that construction of the temporary road was undertaken without reasonable care. To the contrary, Grand Acadian argues that the damage to the Leased Properly was substantially complete by January 11, 2006, see supra n. 69, the day before construction of the temporary road began, see JX 37 (Fluor Daily Reports) 2473.
. Grand Acadian does not argue that Fluor’s stormwater remediation after construction harmed the Leased Property or was undertaken without reasonable care. To the contrary, Grand Acadian contends that the soil on the Leased Property remains in substantially the same condition as on January 11, 2006, see supra n. 69, approximately seven months before Fluor began *506stormwater remediation, see supra Part III.D.6. Furthermore, because Fluor's stormwater remediation — which entailed filling a portion of the South Ditch, maintaining stormwater controls, and grading and seeding portions of the Leased Property — was required by the stormwa-ter permit, see supra Part III.D.6, the damage, if any, to the soil that resulted from Fluor’s storm-water remediation efforts, in the absence of a failure to exercise reasonable care, is normal wear, see supra Part II.B.
. In its Answer, the government claimed that "[pllaintiff's claims for damages are barred, in whole or in part, because plaintiff already has been compensated $800,000 by defendant’s contractor and its subcontractors and insurers” through settlements in related litigation. Answer ¶ 184. "The purpose of damages for breach of contract is generally to put the wronged party in as good a position as he would have been had the contract been fully performed.” S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1332 (Fed.Cir.2005). "In light of this general purpose, a wronged party is typically not allowed to recover twice for the same harm, here a breach of contract.” Id. at 1332-33. This is true "even where claims exist under both contract and tort.” Id. at 1333. "[A] nonsettling defendant is entitled to a credit of the settlement amount against any judgment obtained by the plaintiff against the nonsettling defendant as long *508as both the settlement and judgment represent common damages.” Singer v. Olympia Brewing Co., 878 F.2d 596, 600 (2d Cir.1989).
Once a non-settling defendant has shown “that the plaintiff settled claims with other parties on which the non-settling defendants were found liable at trial ..., the burden then shifts to the plaintiff to prove that, under the terms of its agreement with the settling defendants, the settlement did not represent common damages with the [trial] award.” U.S. Indus., Inc. v. Touche Ross & Co. (U.S. Indus.), 854 F.2d 1223, 1262 (10th Cir.1988), overruled on other grounds as recognized by Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir.1996); accord In re Tex. Gen. Petrol. Corp., 52 F.3d 1330, 1340 (5th Cir.1995); Gulfstream III Assocs., Inc. v. Gulf-stream Aerospace Corp., 995 F.2d 425, 436 (3d Cir.1993).
Grand Acadian’s settlement agreements do not allocate the settlement amounts between its various claims against Fluor and its subcontractors; instead, the agreements simply release the defendants from "any and all claims.” See JX 79 (Grand Acadian Fluor Settlement) 1; JX 80 (Grand Acadian Subcontractor Settlement) 3. A plaintiff may not, by signing a settlement agreement that is ambiguous or that does not allocate settlement amounts, deprive a defendant of a credit to which the defendant is otherwise entitled. See, e.g., U.S. Indus., 854 F.2d at 1262-63. If Grand Acadian were entitled to damages in this litigation, the government would be entitled to a credit of $800,000 against any such damages.
. Defendant briefly argues in the alternative that “Grand Acadian certified a claim for 30 acres of hydroseed, or 100 percent coverage, on the roughly 30-acre leased property. Accordingly, even if Grand Acadian’s non-fraudulent explanation were credited as to the 70 percent of the claim for hydroseeding grass ($100,800), the remaining 30 percent ($43,200) still would be false and inflated_" Def.’s Br. 61-62 (citations omitted). Although Ms. Berg testified that the government’s stormwater permit required 70% ground coverage, see Tr. 3860:4-3861:16 (Berg), she did not explicitly testify that the 70% requirement — as distinguished from a 100% coverage requirement — would apply to Grand Acadian’s proposed restoration efforts. The regulatory requirements of Louisiana stormwater permits were neither squarely addressed at trial nor briefed by the parties. The court is unable to conclude on the record before it that Grand Acadian’s claim for the cost of planting grass was inaccurate or inflated.
Rather, Grand Acadian’s inclusion of the cost of seeding all of the disturbed soil could reflect an intention to comply with the regulatory requirements. Mr. John Lowery, the engineer who created Grand Acadian’s cost estimate, see supra Part III.D.4, testified that he included the cost of planting grass on thirty acres because he believed that approximately thirty acres of soil would be disturbed, see Tr. 2934:14-20 (Lowery). Although the court has determined that Mr. Lowery made no independent investigation of the measures necessary to restore the soil on the Leased Property to its pre-Lease condition, see supra Part III.D.4, the fact that Mr. Lowery, after he had been instructed that seeding the disturbed area should be included in the cost estimate, see Tr. 2934:21-2935:1 (Lowery), decided to include in his cost estimate the cost of seeding all— rather than 70% — of the disturbed soil reflects an independent judgment upon which Grand Acadi-an could — not unreasonably — rely in its certified claim.
. In their briefing, the parties discuss at length the number and the state of health of the trees standing on the Leased Property at the beginning of the Lease term. See, e.g., Pl.'s Br. 21-26; Def.’s Br. 22-25, 59-60. Because the court has ruled that Grand Acadian is not entitled to the cost of replacing trees, see supra Part I, and because it is not necessary to determine the precise number and the state of health of the trees on the Leased Property at the beginning of the Lease term in order to decide the government’s counterclaims, the court makes no findings of fact on these issues.
. At trial, the parties brought cross-motions for judgment on partial findings pursuant to RCFC 52(c). See Tr. 3298:6-3299:13 (defendant's counsel); 3732:14-3733:3 (plaintiffs counsel). The parties' motions under RCFC 52(c) are MOOT.
. Because Ms. Berg was out of the country at the time of the trial, her testimony was heard in Washington, DC on January 5, 2012. Jan. 23, 2012 Order, Dkt. No. 187, at 1. Ms. Berg's testimony was recorded by the court’s electronic digital recording (EDR) system and then transcribed. Id.
Because the transcript of Ms. Berg's testimony indicates that certain portions of Ms. Berg’s testimony were inaudible although her answers could be heard at the hearing and can be heard on the EDR recording, see id., the court directed the parties to endeavor to agree upon the content of any testimony described as inaudible in the transcript but audible in the EDR recording and cited by the parties in their briefing, see Feb. 29, 2012 Order, Dkt. No. 196, at 1-2. The parties submitted a proposed transcription of fifteen brief portions of Ms. Berg’s testimony described as inaudible in the transcript. See Def.’s Proposed Transcription of Portions of Jan. 5, 2012 Trial Test. Deemed "Inaudible” By Ct. Rep., Dkt. No. 195; cf. Def.'s Unopposed Mot. for an Order Directing Correction of the Trial R., Dkt. No. 194. The court deemed the transcription provided by the parties "to be the correct transcription of the corresponding testimony [provided by] Ms. Berg and described by the court reporter as 'inaudible.' ” Feb. 29, 2012 Order 2. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218282/ | OPINION
HORN, Judge.
FINDINGS OF FACT
The plaintiffs, who claim property interests along a rail line in Beaufort County, South Carolina, filed a complaint in the United States Court of Federal Claims alleging that the government caused uncompensated takings of their property interests pursuant to the Fifth Amendment to the United States Constitution. The rail line at issue in the above captioned ease is the former Port Royal Railroad line, extending twenty-five miles between milepost AMJ-443.26 in Yemassee, South Carolina, to milepost AMJ-468.31 in Port Royal, South Carolina. The plaintiffs allege that the government effected the takings by allowing the conversion of railroad easements across their properties from rail use to trail use. The plaintiffs premise their claim on the United States Department of Transportation Surface Transportation Board’s (STB) issuance of a Notice of Interim Trail Use (NITU) pursuant to the National Trails System Act (Trails Act), 16 U.S.C. §§ 1241-51 (2006).
*520In 1857, in the Port Royal Railroad Charter, the State of South Carolina granted the Port Royal Railroad Company (the Port Royal Railroad) the authority to condemn land to operate a railroad, pursuant to “An Act to Charter the Port Royal Railroad Company.” The Port Royal Railroad Charter read, in pertinent part:
Be it enacted by the Senate and House of Representatives, now met and sitting in General Assembly, and by the authority of the same, That for the purpose of establishing a communication by railroad from the waters of Port Royal Harbor, in the neighborhood of Beaufort, to some point on the Savannah River, passing near the Salcahatchie Bridge, the formation of a corporate Company is hereby authorized, to be called “The Port Royal Railroad Company”
That the said Company is hereby authorized to construct a railroad from the waters of Port Royal Harbor, in the neighborhood of Beaufort, to some point on the Savannah River, passing near the Salca-hatchie Bridge, by a route to be determined by the said Company, after the same shall have been formed.
[A]ll the powers and privileges granted by the Charter of the Spartanburg and Union Railroad Company,1 shall be, and are hereby granted to the Port Royal Railroad Company, subject to the conditions therein contained, except in so far as the special provisions of this Act may require the same to be modified or varied.
That all questions concerning the right of way for said railroad, where the Company and the land owners cannot agree touching the same, shall be determined in the same manner as is provided by the tenth section of an Act, entitled “An Act to authorise [sic] the formation of the Greenville and Columbia Railroad Company,” ratified on the fifteenth day of December, in the year of our Lord one thousand eight hundred and forty-five, for determining questions of right of way for said railroad.
In 1870, the South Carolina legislature amended the Port Royal Railroad Charter to extend the permissible amount of time to complete the railroad and to lengthen the life of the charter by fifty years. The Port Royal Railroad subsequently acquired portions of the rail line without the benefit of recorded instruments from the original landowners.
In addition to acquiring easements for portions of the rail line at issue in this case without the benefit of recorded instruments from landowners through condemnation, the Port Royal Railroad also acquired easements from certain landowners by written conveyances. Four portions of the Port Royal Railroad line established by conveyance also are at issue in the above captioned case. On May 27, 1870, William Fuller conveyed a right of way to the Port Royal Railroad (the Fuller deed). On July 23, 1870, Benjamin Mack conveyed a right of way to the Port Royal. Railroad (the Mack deed). On May 1, *5211873, Daniel F. Appleton conveyed an easement to the Port Royal Railroad (the Appleton deed). George Waterhouse and Anna S. Mulford conveyed a right of way to the Port Royal and Augusta Railway Company (the Mulford-Waterhouse deed), dated July 12, 1881.
The Port Royal Railroad merged into the Seaboard System Railroad, Inc. (Seaboard) and acquired the rights of way. In 1984, at Seaboard’s request, the Interstate Commerce Commission2 authorized Seaboard to abandon the rights of way. See Beaufort R.R. Co.—Modified Rail Certificate, STB Finance Docket No. 34943, 2008 WL 727785, at *1 (S.T.B. Mar. 18, 2009). Seaboard, however, did not abandon the rights of way, instead it transferred its interests in the line to the South Carolina State Ports Authority (Ports Authority). See id.; see also Beaufort R.R. Co.—Modified Rail Certificate, STB Finance Docket No. 34943, 2009 WL 1416460 (S.T.B. May 19, 2009). The Ports Authority then leased the rights of way to the South Carolina State Ports Commission, which is currently part of the State of South Carolina Division of Public Railways. See Beaufort R.R. Co.—Modified Rail Certificate, STB Finance Docket No. 34943, 2008 WL 727785, at *1. From 1985 to 2003, Tangent Transportation Company, Inc. (Tangent), a wholly owned subsidiary of the South Carolina State Ports Commission, operated the rail line pursuant to a modified certificate.3 See id.
Tangent gave notice to the STB in 2003 that it intended to terminate service over the rail line due to Port Royal’s closed port. In December 2006, however, Beaufort Railroad Company, Inc. (Beaufort Railroad), a subsidiary of the South Carolina Division of Public Railways, notified the STB that it would reactivate rail service along the rail line pursuant to a new modified certificate, which the STB issued that month.4 See Beaufort R.R. Co.—Modified Rail Certificate, STB Finance Docket No. 34943, 2009 WL 2170143 (S.T.B. July 20, 2009). On July 16, 2008, Beaufort Railroad filed a notice of intent to terminate service over the entire rail line pursuant to the modified certificate that the STB had issued in 2006.
Subsequently, the Ports Authority and the Beaufort-Jasper Water and Sewer Authority (BJWSA) filed a joint request for a NITU, and informed the STB that the parties had entered into a “rail banking/interim trail use agreement, contingent upon the issuance of a NITU.” Beaufort R.R. Co. — Modified Rail Certificate, STB Finance Docket No. 34943, 2009 WL 1416460, at *7. On May 20, 2009, the STB issued the NITU, which authorized the Ports Authority to negotiate a final trail use agreement with the BJWSA. The interim trail use/railbanking agreement, executed May 30, 2008, stated:
WHEREAS PURCHASER [the BJWSA] seeks to purchase, pursuant to the National Trails System Act, 16 U.S.C. § 1247(d), all of SELLER’S [the Ports Authority’s] right, title and interest in all portions of the following rail corridors and all track structures approximately situated between the following mileposts: AMJ-443.37 to AMJ-468.31, including, but not limited to all bridges, culverts, track materials and *522appurtenances, except as otherwise excluded as provided herein.
The interim trail use/railbanking agreement continued:
In consideration of the foregoing premises and the mutual covenants and agreements herein contained, the SELLER agrees to sell to the PURCHASER and the PURCHASER agrees to purchase from the SELLER as is and by quit-claim, on the terms and conditions hereinafter set forth, all of such right, title and interest that SELLER may have in the Property located in Beaufort County ... together with and including all rails and improvements located thereon and all rights of SELLER to operate a railroad on, upon and across said Property, but excluding any parcels contiguous with the said railroad corridor which are not themselves part of the corridor ....
On November 5, 2009, the Ports Authority quitclaimed its interest in the rail line to the BJWSA. The quitclaim deed impacted the twenty-five linear miles of rail line between Yemassee, South Carolina and Port Royal, South Carolina. The quitclaim deed stated that the conveyance was:
subject to and in conformance with (i) the provisions of the National Trails System Act, 16 U.S.C. Section 1247(d); and (ii) the Contract to Purchase and interim Trail Use/Railbanking Agreement between the parties dated May 30, 2008, as amended, which is incorporated herein by reference, has remised, released and forever quit-claimed, and by these presents does hereby remise, release and forever quit-claim unto the said Grantee [BJWSA] all of its right, title and interest in and to the following described property....
By conveying the rail line to the BJWSA, which was considered the “trail sponsor,” the rights of way were converted to interim trail use. See 16 U.S.C. § 1247(d) (2006).
The plaintiffs filed suit in the United States Court of Federal Claims alleging that the NITU issued on May 20, 2009, and the agreement to use the easements running across the plaintiffs’ parcels of land for trail purposes, constituted uncompensated takings in violation of the Fifth Amendment to the United States Constitution. The plaintiffs’ property interests5 fall into one of five categories: (1) properties abutting and underlying6 the railroad easements established by the Port Royal Railroad Charter;7 (2) prop*523erties abutting and underlying the railroad easement established by the Fuller deed;8 (3) properties abutting and underlying the railroad easement established by the Mack deed;9 (4) properties abutting and underlying the railroad easement established by the Appleton deed;10 and (5) properties abutting and underlying the railroad easement established by the Mulford-Waterhouse deed.11
Because the Port Royal Railroad acquired portions of the line without the benefit of recorded instruments from certain landowners through condemnation, there is no deed language associated with those property interests. The remaining conveyances at issue in the above captioned case originate in recorded instruments from landowners. “The Conveyance of Right of Way” from William Fuller to the Port Royal Railroad on May 27, 1870, reads, in pertinent part:
Whereas the General Assembly of the State [of South Carolina] did on the twenty first day of December, in the year of our Lord one thousand eight hundred fifty-seven pass an Act to incorporate the Port Royal Railroad Company, for the purpose of establishing a communication by Railroad from the waters of Port Royal Harbor, in the neighborhood of Beaufort to some point on the Savannah River, passing near the Solcahatchie (sp?)12 Bridge; wherein and whereby certain powers were conferred upon the said Company, and among them, the power to take & hold in fee simple, lands tenements or heredita-ments, that they may find necessary, as well for the site on and along which to locate run and establish the said Railroad, as for the procuring and from time to time, readily obtaining proper materials for constructing, repairing grading and sustaining the same. And whereas the said Port Royal Railroad Company find the piece parcel or strip of land hereinafter more particularly described, necessary for the uses & purposes of the said Road. Now know by all men these presents that I William Fuller of the County of Beaufort in the State aforesaid in consideration of the premises and also in consideration of *524the sum of [illegible]13 five dollars to me in hand paid by the Port Royal Railroad Company the receipt whereof I do hereby acknowledge, have granted bargained sold and released, and by these presents do grant, bargain sell and release unto the Port Royal Railroad Company all that piece parcel or strip of land measuring in length eight hundred & thirty-seven feet, and in width throughout its entire length one hundred feet, being part & parcel of a tract of land belonging to me the said Wm. Fuller situate in the County of Beaufort in the State aforesaid [Illegible] which the said railroad is to be constructed, and upon which the same is located, which said strip of land is fully and accurately delineated and described in a plat thereof and of the said Railroad. Provided nevertheless, that whenever it may become necessary for the said Company to occupy a space wider than the said width of the said strip of land to-wit 100 feet by reason of cutting and filling, it shall and may be lawful for them to occupy as much land outside the limits of the said strip as may be sufficient to deposit waste earth and construct embankments; that when the lands adjacent to the said strip are under construction it shall and may be lawful for me the said Wm. Fuller and my heirs and assigns from time to time, and at all times, to cultivate the same on both sides of the said road, and as near to the track thereof as may be convenient, without obstructing the use of the same, by the said Company. And provided also, that the said Company shall, at all times have the right to cut down and remove any tree or trees, which from the position or condition of it or them, may in any way endanger the track or property of the said Company, notwithstanding the said tree or trees may be without the limits of the said piece parcel or strip of land.
To have and to hold all and singular as the premises unto the said Port Royal Rail Road Company, their successors and assigns forever.
The “Release of Right of Way” from Benjamin Mack to the Port Royal Railroad on July 23,1870, reads, in pertinent part:
Know all men by these presents that I, Benjamin Mack of the County of Beaufort in the State aforesaid, for divers good and sufficient reasons, especially for and in consideration of the sum of fifty ($50) dollars to me paid at the time of the sealing of these presents by the Port Royal Railroad Company in the State of South Carolina, the receipt whereof is hereby acknowledged, have granted bargained, sold and conveyed, and by these presents do grant bargain sell and convey unto the said The Port Royal Railroad Company and to their successors & assigns forever, all that parcel or strip of land situate on Port Royal Island in the- County of Beaufort and State aforesaid being a part of lot number (20) twenty ... meaning thereby to convey to the said Rail Road Company the right of way over and through my said lot of land. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and all the estate right title interest property possession, claim and demand whatsoever of the said Benjamin Mack of in or to the above described premises, and every part and parcel thereof with the appurtenances to have and to hold forever.
The “Lien Claims Deed” from Daniel F. Appleton to the Port Royal Railroad on May 1,1873, reads, in pertinent part:
This Indenture made the first day of May in the year one thousand and eight hundred and seventy three between Daniel F. Appleton of the County City and State of New York party of the first part, and the Port Royal Rail Road Company of the State of South Carolina & Georgia party of the second part.
Witnesseth, that the said party of the first part, for and in consideration of the sum of one dollar and other valuable considerations, lawful money of the United States of America to him in hand paid by the said party of the second part, at or before the *525sealing and delivery of these present, the receipt whereof is hereby acknowledged, hath remised released and quitclaimed, and by these presents doth remise release and quit-claim unto the said party of the second part and to their heirs and successors and assigns forever.
All those three parcels of land situate in the City of Port Royal County of Beaufort and State of South Carolina recorded and described as follows _ [property description] The said grant [illegible]14 being forty acres of land at Port Royal for the use of the said Rail Road, which said three pieces of land have been surveyed and set apart by George Gage Engineer of said Port Royal Rail Road in accordance with an agreement between the parties herein. And the said Railroad Company hereby agrees to accept the three pieces of land herein described in place of forty acres in one lot acquired by the said agreement. ...
Together with all and singular the tenements hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever as well in law or in equity of the said party of the first part of, in or to the above-described premises and every part and parcel thereof with the appurtenances.
To have and to hold all and singular the above mentioned and described premises together with the appurtenances unto the said party of the second part their heirs successors and assigns forever.
The “Conveyance” from George Water-house and Anna S. Mulford to the Port Royal and Augusta Railroad Company, dated July 12, 1881, reads, in pertinent part:
Know all men by these presents that we, George Waterhouse, Beaufort in the State aforesaid and Mrs. Anna S. Mulford widow, Millville in the State of New Jersey for and in consideration of the sum of One dollar to us paid by the Port Royal and Augusta Railway Company a [illegible]15 petition and corporate by and under the laws of the State of South .Carolina receipt whereof is hereby acknowledged, have granted bargained, sold and released and by these presents do grant bargain sell and convey unto the said the Port Royal and Augusta Railroad Company All that piece parcel or strip of land situated lying and being on Port Royal Island in the County of Beaufort and the State of South Carolina being a part of the plantation known as “Fuller Hermitage” and described as follows to-wit: Commencing at the southern boundary of the said Fuller Hermitage at a point seventy five (75) feet West of the Center of the track of the Port Royal and Augusta Railway Company and subsiding thence South one thousand one hundred and fifty feet (1150) on a line parallel with said track thence east forty-five feet (45) thence south two thousand seven hundred feet (2700) on a line parallel with said track thence east across said track sixty feet (60) thence south two thousand seven hundred feet (2700) on a line parallel with said track thence east forty-five (45) thence north one thousand one hundred and fifty feet (1150) on a line parallel with said track thence west across said track one hundred and fifty feet to the place of beginning measuring and continuing seven and two thirds acres (7 2/3) more or less upon which said strip the [sic] track of the said Port Royal and Augusta Railway Company has been constructed to have and to hold the said strip of land unto the said Port Royal and Augusta Railway Company, their successors and assigns for the purpose of the operation of the said *526road so long as the same shall be used for such highway and no longer.
Previously, the court dismissed from the above captioned case claims brought by a number of the property owners included in the original complaint. The property owners who were dismissed from the above captioned ease alleged that their property interests derived from railroad easements established pursuant to the Port Royal Railroad Charter, but their property interests did not abut the subject easement or, alternatively, the plaintiffs could not establish that they owned their property interest as of the date the NITU was issued. The dismissed plaintiffs and their properties are: Clayton C. Barnard, Managing Member, C.C. Barnard, LLC (PID # R100 026 00A 0266 0000, # R100 026 00A 0267 0000, # R100 026 00A 0268 0000 (dismissed May 5, 2011) and PID # R100 029 000 002A 0000 (dismissed April 21, 2011)); Ronald G. Barnard, Trustee, the Ronald G. Barnard Trust dated April 29, 2004 (PID # R100 026 00A 0299 0000, # R100 026 00A 0263 0000, # R100 026 00A 0298 0000 (dismissed May 5, 2011)); Frederick E. Bley, Jr. (PID # R100 026 000 148A 0000 (dismissed April 21, 2011)); Janice B. Cappelmann, Trustee, the Janice B. Cappel-mann Trust (PID # R100 012 000 010A 0000 (dismissed April 21, 2011)); and James Sneed, Jr. (PID # R100 025 000 023A 0000 (dismissed April 21, 2011)). The court also dismissed from the above captioned case two additional parcels owned by Erin L. and Marsha D. Peets (PID # RUO 008 000 365B 0000, # R110 008 000 0667 0000 (dismissed April 21, 2011)), who alleged that their properties abutted the railroad easement pursuant to the Appleton deed. Erin L. and Marsha D. Peets, however, still claim separate and surviving interests in the ease pursuant to the Appleton deed (PID # R110 008 000 0665 and # R110 008 000 0666 0000).
The parties have been working together and have negotiated settlements on a number of key issues. The government states, it “does not believe a determination of liability is necessary to reach a settlement in this matter.” The parties also have agreed that easements, and not fee interests, are at issue in the above captioned case. In addition, the government indicates that for the purposes of settlement and compromise, regarding the plaintiffs in this ease, “the United States agrees to assume that recreational trail use is beyond the scope of a railroad purposes easement under South Carolina law.” The defendant’s cross-motion for partial summary judgment states, “[t]he parties do not dispute that, at one time, a railroad easement burdened Plaintiffs’ properties.”
The parties also indicate they will try to resolve specific title issues and engage in “a cooperative effort to determine the impact that the NITU may have on the market value of Plaintiffs’ property.” In this regard, the parties have agreed that the “proper method to determine the value of each owner’s property affected by the Trails Act is for an appraiser to determine the fair market value of the landowner’s entire parcel of property in a ‘before taken’ condition and in an ‘after taken’ condition.” According to the parties, the difference between these two values represents the value of the property interest taken by the Trails Act. “The parties also agree that, in its ‘after taking condition, the property is encumbered by those easements created and perpetuated by the Trails Act, including an easement for so-called ‘railbank-ing’ (the STB’s continuing jurisdiction to authorize any railroad to construct a new railroad line across the land) and for current use by the public for interim trail use and related recreation.”
In its cross-motion for partial summary judgment, the defendant further states: “Consistent with the parties’ efforts to resolve this matter through negotiation and compromise, Plaintiffs and the United States have agreed to engage in a joint appraisal project designed to measure the value of the property interest Plaintiffs allege the United States has taken in this case.” To this end, the plaintiffs note, “that the landowners and the government have agreed to use the South Carolina commercial real estate appraiser, Patrick Keenan, as a common appraiser to determine the value of each Plaintiffs property subject to the NITU.” The pai’ties also indicate that they “have agreed to settle the interest rate to be applied in the settlement of certain Plaintiffs’ properties in this ease.”
*527The parties, however, do not agree on how to determine the value of the properties before the NITU was issued. As indicated in the plaintiffs’ motion for partial summary judgment, “[t]he parties cannot agree, however, on the condition of the property as it is to be appraised in the ‘before taken’ condition.” Or, as similarly noted by the defendant, the “Court need only address whether a railroad easement burdened Plaintiffs’ property at the time the STB issued the NITU.” The dispute was articulated by the parties in a joint filing submitted to the court as follows:
The Plaintiffs’ position is that upon the STB’s issuance of the NITU, the federal government destroyed the “reversionary” interest Plaintiffs otherwise held in their property to regain full, unencumbered use of the land free of the railroad easement upon abandonment. As such, the proper standard for measuring the “before” value is to appraise the Plaintiffs’ property unencumbered by a railroad easement. The Defendant’s position is that, at the time the STB issued the NITU, a railroad easement encumbered Plaintiffs’ property. Because this easement existed at the time the NITU was issued, the United States believes that an appraisal of the property in the “before” condition must account for the easement, (emphasis in original).
DISCUSSION
The parties have filed cross-motions for partial summary judgment on the limited issue of how to value the plaintiffs’ properties prior to the issuance of the NITU. Rule 56 of the Rules of the United States Court of Federal Claims (RCFC) (2011) is patterned on Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) and is similar, both in language and effect. Both rules provide 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.” RCFC 56(a); Fed.R.Civ.P. 56(a) (2012); see also Alabama v. North Carolina, - U.S. -, 130 S.Ct. 2295, 2308, 176 L.Ed.2d 1070 (2010); Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1325 (Fed.Cir.), reh’g denied (Fed.Cir.2010); Consol. Coal Co. v. United States, 615 F.3d 1378, 1380 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2990, 180 L.Ed.2d 821 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d 1350, 1355 (Fed.Cir.2009); Arico Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1378 (Fed.Cir.2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed.Cir.2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed.Cir.2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1139, 125 S.Ct. 2963, 162 L.Ed.2d 887 (2005); Cohen v. United States, 100 Fed.Cl. 461, 469 (2011); Boensel v. United States, 99 Fed.Cl. 607, 610 (2011). A fact is material if it will make a difference in the result of a case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; see also Thompson v. United States, 101 Fed.Cl. 416, 426 (2011); Cohen v. United States, 100 Fed.Cl. at 469. Irrelevant or unnecessary factual disputes do not preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. 2505; see also Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed.Cir.2001); Walker v. United States, 79 Fed.Cl. 685, 692 (2008); Curtis v. United States, 144 Ct.Cl. 194, 199, 168 F.Supp. 213, 216 (1958), cert. denied, 361 U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81 (1959), reh’g denied, 361 U.S. 941, 80 S.Ct. 375, 4 L.Ed.2d 361 (1960).
When reaching a summary judgment determination, the judge’s function is not to weigh the evidence and determine the truth of the case presented, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 *528U.S. at 249, 106 S.Ct. 2505; see, e.g., Schlup v. Delo, 513 U.S. 298, 332, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed.Cir.1998) (“Due to the nature of the proceeding, courts do not make findings of fact on summary judgment.”); Cohen v. United States, 100 Fed.Cl. at 469-70; Boensel v. United States, 99 Fed.Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed.Cl. 708, 717 (2011); Dick Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed.Cl. 113, 126 (2009); Johnson v. United States, 49 Fed.Cl. 648, 651 (2001), aff'd, 52 Fed.Appx. 507 (Fed.Cir.2002), published at 317 F.3d 1331 (Fed.Cir.2003). The judge must determine whether the evidence presents a disagreement sufficient to require submission to fact finding, or whether the issues presented are so one-sided that one party must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52, 106 S.Ct. 2505; Jay v. Sec’y of Dep’t of Health and Human Servs., 998 F.2d 979, 982 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir. 1993). When the record could not lead a rational trier of fact to find for the nonmov-ing party, there is no genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d 1306, 1316 (Fed.Cir.2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n. 3 (Fed.Cir.1996). In such a case, there is no need for the parties to undertake the time and expense of a trial, and the moving party should prevail without further proceedings.
In appropriate eases, summary judgment: saves the expense and time of a full trial when it is unnecessary. When the material facts are adequately developed in the motion papers, a full trial is useless. “Useless” in this context means that more evidence than is already available in connection with the motion for summary judgment could not reasonably be expected to change the result.
Dehne v. United States, 23 Cl.Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex, (U.S.A.) Inc., 739 F.2d 624, 626 (Fed.Cir.1984)), vacated on other grounds, 970 F.2d 890 (Fed.Cir.1992) (citation omitted); see also Metric Constr. Co., Inc. v. United States, 73 Fed.Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; see also Takeda Pharm. Co. v. Doll, 561 F.3d 1372, 1375 (Fed.Cir.2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007), cert. denied, 555 U.S. 812, 129 S.Ct. 38, 172 L.Ed.2d 19 (2008); Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2001), cert. denied, 534 U.S. 1109, 122 S.Ct. 913, 151 L.Ed.2d 879 (2002); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350, 1353 (Fed.Cir.1999); Gonzales-McCaulley Inv. Group, Inc. v. United States, 101 Fed.Cl. 623, 629 (2011). In other words, if the non-moving party produces sufficient evidence to raise a question as to the outcome of the case, then the motion for summary judgment should be denied. Any doubt over factual issues must be resolved in favor of the party opposing summary judgment, to whom the benefit of all presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88, 106 S.Ct. 1348; Yant v. United States, 588 F.3d 1369, 1371 (Fed.Cir.2009), cert. denied, — U.S. -, 131 S.Ct. 69, 178 L.Ed.2d 23 (2010); Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed.Cir.2001), reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed.Cir.2002), cert. denied, 539 U.S. 957, 123 S.Ct. 2637, 156 L.Ed.2d 655 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v. Fedders Corp., 145 F.3d 1461, 1463 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371 (citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed.Cir.2000)); Boensel v. United States, 99 Fed.Cl. at 611 (“ ‘The evidence of the nonmovant is to be *529believed, and all justifiable inferences are to be drawn in his favor.’ ” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88, 106 S.Ct. 1348; Casitas Mun. Water Dist. v. United States, 543 F.3d at 1283, Lathan Co. Inc. v. United States, 20 Cl.Ct. 122, 125 (1990))). “However, once a moving party satisfies its initial burden, mere allegations of a genuine issue of material fact without supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed.Cir.2009); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. 2505.
The initial burden on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact may be discharged if the moving party can demonstrate that there is an absence of evidence to support the nonmov-ing party’s ease. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed.Cir.2005); Crown Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed.Cir.), reh’g denied (Fed.Cir.2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741 (Fed.Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed.Cir.1994), reh’g denied and en banc suggestion declined (Fed.Cir.1995)), reh’g denied and en banc suggestion declined (Fed.Cir.1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1569 (Fed.Cir. 1997); Dana R. Hodges Trust v. United States, 101 Fed.Cl. 549, 553 (2011). If the moving party makes such a showing, the burden shifts to the nonmoving party to demonstrate that a genuine dispute regarding a material fact exists by presenting evidence which establishes the existence of an element essential to its case upon which it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548; see also Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed.Cir.2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Florida Power & Light Co. v. United States, 375 F.3d 1119, 1124 (Fed.Cir.2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207 (Fed.Cir.2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed.Cir.2000). However, “a non-movant is required to provide opposing evidence under Rule 56(e) only if the moving party has provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1369 (Fed.Cir.2006).
Even if both parties argue in favor of summary judgment and allege an absence of genuine issues of material fact, the court is not relieved of its responsibility to determine the appropriateness of summary disposition in a particular ease, and it does not follow that summary judgment should be granted to one side or the other. See Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987)); see also Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968-69 (Fed.Cir.2009); B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir.2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n. 5 (9th Cir.2000), cert. denied, 532 U.S. 942, 121 S.Ct. 1403, 149 L.Ed.2d 346 (2001); Bubble Room, Inc. v. United States, 159 F.3d 553, 561 (Fed.Cir.1998) (“The fact that both the parties have moved for summary judgment does not mean that the court must grant summary judgment to one party or the other.”), reh’g denied and en banc suggestion declined (Fed.Cir.1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir.1998); Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed.Cir.1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401 F.2d 689, 692 (4th Cir.1968), cert. denied, 393 U.S. 1083, 89 S.Ct. 866, 21 L.Ed.2d 776 (1969); Rogers v. United States, 90 Fed.Cl. 418, 427 (2009), subsequent determination, 93 Fed.Cl. 607 (2010); Consol. Coal Co. v. United States, 86 Fed.Cl. 384, 387 (2009), aff'd, 615 F.3d 1378 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2990, 180 L.Ed.2d 821 (2011); St. Christopher Assocs., L.P. v. United *530States, 75 Fed.Cl. 1, 8 (2006), aff'd, 511 F.3d 1376 (Fed.Cir.2008); Reading & Bates Corp. v. United States, 40 Fed.Cl. 737, 748 (1998). The court must evaluate each party’s motion on its own merits, taking care to draw all reasonable inferences against the party whose motion is under consideration, or otherwise stated, in favor of the non-moving party. See First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed.Cir.2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2001), cert. denied, 534 U.S. 1114, 122 S.Ct. 921, 151 L.Ed.2d 886 (2002); Oswalt v. United States, 85 Fed.Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v. United States, 71 Fed.Cl. 114, 119 (2006).
Cross-motions are no more than a claim by each party that it alone is entitled to summary judgment. The making of such inherently contradictory claims, however, does not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d at 593; Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir.1998); Rogers v. United States, 90 Fed.Cl. at 427; Reading & Bates Corp. v. United States, 40 Fed.Cl. 737, 748 (1998).
“Questions of law are particularly appropriate for summary judgment.” Oenga v. United States, 91 Fed.Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d 1344, 1347 (Fed.Cir.1999) (“Summary judgment was appropriate here [in Dana Corp.] because no material facts were disputed, many being stipulated, and the only disputed issues were issues of law. Moreovei’, on each issue one party or the other is entitled to judgment as a matter of law.”)).
At this juncture of the above captioned case, the parties have submitted to the court a joint statement identifying a single issue of law for resolution: whether the valuation of the taken property in its “before taken” condition should account for an existing railroad easement that later would be converted into a trail, or whether the property should be valued as unencumbered by any easement in its “before taken” condition. The parties agree that no material facts are in dispute and that the single issue presented may be resolved by partial summary judgment proceedings.
Pursuant to the Tucker Act, the United States Court of Federal Claims has exclusive jurisdiction to render judgment upon any claim against the United States for money damages exceeding $10,000.00, “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) (2006).
The Takings Clause of the Fifth Amendment to the United States Constitution provides in pertinent part: “nor shall private property be taken for public use without just compensation.” U.S. Const, amend. V. The purpose of this Fifth Amendment provision is to prevent the government from “‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’” Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)); see also Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123-24, 98 S.Ct. 2646, 57 L.Ed.2d 631, reh’g denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005); E. Enters. v. Apfel, 524 U.S. 498, 522, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998); Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1266 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1501, 176 L.Ed.2d 109 (2010); Janowsky v. United States, 133 F.3d 888, 892 (Fed.Cir.1998); Resource Invs., Inc. v. United States, 85 Fed.Cl. 447, 469-70 (2009); Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166, 179, 20 L.Ed. 557 (1871) (citing to principles which establish that “private property *531may be taken for public uses when public necessity or utility requires” and that there is a “clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified.”).
Therefore, “a claim for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. at 520, 118 S.Ct. 2131 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)); see also Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1336 (Fed.Cir.2007); Morris v. United States, 392 F.3d 1372, 1375 (Fed.Cir.2004) (“Absent an express statutory grant of jurisdiction to the contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over takings claims for amounts greater than $10,000.”). The United States Supreme Court has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the [United States Court of Federal Claims] to hear and determine.” Preseault v. Interstate Commerce Comm’n,16 494 U.S. 1, 12, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (quoting United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946)); see also Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1368 (Fed.Cir.2005); Narramore v. United States, 960 F.2d 1048, 1052 (Fed.Cir.1992); Perry v. United States, 28 Fed.Cl. 82, 84 (1993).
To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that the government took a private property interest for public use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.Cir.2004), cert. denied, 546 U.S. 811, 126 S.Ct. 330, 163 L.Ed.2d 43 (2005); Arbelaez v. United States, 94 Fed.Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed.Cl. 157, 162 (2006). “The issue of whether a taking has occurred is a question of law based on factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78 (Fed.Cir.), cert. denied, 555 U.S. 1045, 129 S.Ct. 626, 172 L.Ed.2d 608 (2008).
The Federal Circuit has established a two-part test to determine whether government actions amount to a taking of private property under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.Cir.2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.), cert. denied, 516 U.S. 808, 116 S.Ct. 53, 133 L.Ed.2d 18 (1995)). A court first determines whether a plaintiff possesses a cognizable property interest in the subject of the alleged takings. Then, the court must determine whether the government action is a “ ‘compensable taking of that property interest.’ ” Huntleigh USA Corp. v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).
A takings plaintiff must have a legally cognizable property interest, such as the right of possession, use or disposal of the property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. *532373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)); CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2459, 179 L.Ed.2d 1211 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed.Cir.), reh’g denied and en banc suggestion denied (Fed.Cir.2000), cert. denied, 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001). “ ‘It is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation.’ ” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001), cert. denied 535 U.S. 1077, 122 S.Ct. 1960, 152 L.Ed.2d 1021 (2002) and citing Cavin v. United States, 956 F.2d 1131, 1134 (Fed.Cir.1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d 1344, 1352 (Fed.Cir.2003) and M & J Coal Co. v. United States, 47 F.3d at 1154). The court does not address the second step “without first identifying a cognizable property interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed.Cir.) (citing Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States, 291 F.3d 1334, 1340 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003)), reh’g denied and reh’g en banc denied (Fed.Cir.2005). Only if there is to be a next step, “after having identified a valid property interest, the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest.” Huntleigh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372).
If a plaintiff has a valid property interest, the government takes that interest by destroying, physically occupying, or excessively regulating it for a public purpose. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., — U.S. -, 130 S.Ct. 2592, 2601, 177 L.Ed.2d 184 (2010); Boyle v. United States, 200 F.3d 1369, 1374 (Fed.Cir.2000). ‘“When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.’ ” Brown v. Legal Found. of Wash., 538 U.S. 216, 233, 123 S.Ct. 1406, 155 L.Ed.2d 376 (2003) (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321-23, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002)) (citations omitted); see also John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1357 (Fed.Cir.) (“[A] permanent physical occupation by the government is a per se physical taking requiring compensation under the Fifth Amendment because it destroys, among other rights, a property owner’s right to exclude.”), reh’g en banc denied (Fed.Cir.2006), aff'd, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). The United States Supreme Court has indicated that when “deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.... ” Penn Central Transp. Co. v. City of New York, 438 U.S. at 130-31, 98 S.Ct. 2646. If a plaintiff does possess a property interest, the court decides if the “property has been deprived or abridged sufficiently to qualify as ‘taken.’ ” Northwest La. Fish & Game Pres. Comm’n v. United States, 574 F.3d 1386, 1390 (Fed.Cir.2009) (quoting Members of Peanut Quota Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2005), cert. denied, 548 U.S. 904, 126 S.Ct. 2967, 165 L.Ed.2d 951 (2006)), cert. denied, — U.S. -, 130 S.Ct. 1072, 175 L.Ed.2d 886 (2010); see also Acceptance Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 2402, 176 L.Ed.2d 922 (2010); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003); Wyatt v. United States, 271 F.3d at 1099-1100; Karuk Tribe of Cal. v. Ammon, 209 F.3d at 1374.
The STB has authority to regulate most railroad lines in the United States. See 49 *533U.S.C. § 702 (2006). A railroad seeking to abandon any part of its railroad line must either (1) file an application to abandon or (2) file a notice of exemption to abandon the line. See 49 U.S.C. § 10903 (2006); see also 49 C.F.R. § 1152.50 (2012). “If the STB approves a standard abandonment application or grants an exemption and the railroad ceases operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and state law reversionary property interests, if any, take effect.” Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed.Cir.) (citing Preseault I, 494 U.S. at 6-8, 110 S.Ct. 914), reh’g en banc denied (Fed.Cir.), cert. denied, 546 U.S. 826, 126 S.Ct. 366, 163 L.Ed.2d 72 (2005).
By operation of the Trails Act, the STB may issue a NITU, “suspending exemption proceedings for 180 days to allow a third party to enter into an agreement with the railroad to use the right-of-way as a recreational trail.” Barclay v. United States, 443 F.3d 1368, 1371 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2006), cert. denied, 549 U.S. 1209, 127 S.Ct. 1328, 167 L.Ed.2d 81 (2007). Section 8(d) of the Trails Act, “allows a railroad to negotiate with a state, municipal, or private group (‘the trail operator’) to assume financial responsibility for operating the railroad right of way as a recreational trail.” See Bright v. United States, 603 F.3d 1273, 1275 (Fed.Cir.) (citing Caldwell v. United States, 391 F.3d at 1229), reh’g and reh’g en banc denied (Fed.Cir.2010). If the railroad and an authorized trail provider17 reach an agreement, the NITU extends indefinitely, and the corridor is railbanked, with interim trail use permitted. See 49 C.F.R. § 1152.29(d)(l)-(2) (current through April 19, 2012) (“The NITU will indicate that interim trail use is subject to future restoration of rail service ... [t]he NITU will also provide that, if the user intends to terminate trail use, it must send the [STB] a copy of the NITU and request that it be vacated on a specific date.”); see also Caldwell v. United States, 57 Fed.Cl. 193, 194 (2003) (quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903 n. 1 (8th Cir.1997)) (“The term railbanking refers to the ‘preservation of railroad corridor for future rail use,’ while making the corridor available for other activities.”), aff'd, 391 F.3d 1226 (Fed.Cir.2004), reh’g en banc denied (Fed.Cir.), cert. denied, 546 U.S. 826, 126 S.Ct. 366, 163 L.Ed.2d 72 (2005). When the NITU extends indefinitely and the corridor is railbanked, the STB retains jurisdiction and abandonment of the rail corridor is blocked. See 16 U.S.C. § 1247(d) (“[I]n the ease of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.”).
As described by the United States Court of Appeals for the Federal Circuit:
Thus, section 8(g) of the Trails Act prevents the operation of state laws that would otherwise come into effect upon abandonment-property laws that would “result in extinguishment of easements for railroad purposes and reversion of rights of way to abutting landowners.” Rail Abandonments-Use of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C.2d 591, 1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original easement granted to the railroad under state property law is not broad enough to encompass a recreational trail. See Preseault II, 100 F.3d at 1552; see also Toews [v. United States ], 376 F.3d at 1376.
Caldwell v. United States, 391 F.3d at 1229
The Federal Circuit has established a three-part inquiry to determine takings liability in eases involving the conversion of railroad rights of way to a recreational trail via 16 U.S.C. § 1247(d) of the Trails Act:
*534(1) who owned the strips of land involved, specifically did the Railroad ... acquire only easements, or did it obtain fee simple estates; (2) if the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; and (3) even if the grants of the Railroad’s easements were broad enough to encompass recreational trails, had these easements terminated pri- or to the alleged taking so that the property owners at that time held fee simples unencumbered by the easements.
Preseault II, 100 F.3d at 1533. Phrased differently, the Federal Circuit more recently indicated:
the determinative issues for takings liability are (1) who owns the strip of land involved, specifically, whether the railroad acquired only an easement or obtained a fee simple estate; (2) if the railroad acquired only an easement, were the terms of the easement limited to use for railroad purposes, or did they include future use as a public recreational trail (scope of the easement); and (3) even if the grant of the railroad’s easement was broad enough to encompass a recreational trail, had this easement terminated prior to the alleged taking so that the property owner at the time held a fee simple unencumbered by the easement (abandonment of the easement).
Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed.Cir.2009) (citing Preseault II, 100 F.3d at 1533).
According to the United States Court of Appeals for the Federal Circuit, “[i]t is settled law that a Fifth Amendment taking occurs in Rails-to-Trails cases when government action destroys state-defined property rights by converting a railway easement to a recreational trail, if trail use is outside the scope of the original railway easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed.Cir.2010), reh’g and reh’g en banc denied, 646 F.3d 910 (Fed.Cir.2011); see also Ellamae Phillips Co. v. United States, 564 F.3d at 1373. “It is the law-created right to own private property, recognized and enforced by the Constitution, legislation, and common law, that gives the owner an historically rooted expectation of compensation.” Preseault II, 100 F.3d at 1540. The Federal Circuit in Preseault II also indicated “that power includes the power to preempt state-created property rights, including the rights to possession of property when railroad easements terminate. However, as Justice O’Connor succinctly pointed out in her concurring opinion in Preseault I, having and exercising the power of preemption is one thing; being free of the Constitutional obligation to pay just compensation for the state-created rights thus destroyed is another.” Id. at 1537 (citing Preseault I, 494 U.S. at 22, 110 S.Ct. 914).
The parties have agreed that the Port Royal Railroad acquired only easements for the properties at issue in the above captioned case. For purposes of settlement and compromise, the United States agrees to “assume that recreational trail use is beyond the scope of a railroad purposes easement under South Carolina law.” Because the Port Royal Railroad acquired only easements, and because the easements were not sufficiently broad to contemplate trail use, the government is liable to the plaintiffs in the above captioned case for the property interests that it has taken.
To determine the nature of the property interest, the court looks to state law. The United States Court of Appeals for the Federal Circuit, interpreting a takings claim for a railroad right of way, stated that, “state law generally creates the property interest in a railroad right-of-way.” Barclay v. United States, 443 F.3d at 1374 (citing Preseault I, 494 U.S. at 8, 16, 110 S.Ct. 914). In a footnote on the same page, the court repeated, “[i]n Toews v. United States, 376 F.3d 1371 (Fed.Cir.2004), we reiterated that state law controls the basic issue of whether trail use is beyond the scope of the right-of-way.” Barclay v. United States, 443 F.3d at 1374 n. 4. “The nature of the interest conveyed is determined according to the law of the state where the conveyance occurred. ‘State law creates and defines the scope of the reversionary or other real property interests affected by the ICC’s [Interstate Commerce Commission] action pursuant to See*535tion 208 of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).’ ” Chevy Chase Land Co. of Montgomery Cnty. v. United States, 37 Fed.Cl. 545, 565 (1997) (quoting Preseault I, 494 U.S. at 20, 110 S.Ct. 914 (O’Connor, J., concurring) (citing Ruckelshaus v. Monsanto Co., 467 U.S. at 1001, 104 S.Ct. 2862)), aff'd, 230 F.3d 1375 (Fed.Cir.1999), reh’g and reh’g en banc denied (Fed.Cir.), cert. denied, 531 U.S. 957, 121 S.Ct. 380, 148 L.Ed.2d 293 (2000); see also Whispell Foreign Cars, Inc. v. United States, 97 Fed.Cl. 324, 331 (“Whether an individual has a compensable private property interest is determined by state law.”), amended after recons, in part, 100 Fed.Cl. 529 (2011).
While Chevy Chase Land Co. of Montgomery County v. United States and Preseault I specifically addressed the application of state law to be applied in rails to trails cases, the United States Supreme Court has made similar pronouncements about state law governing how determinations are made regarding property conveyances. For example, in Ruckelshaus v. Monsanto Co., 467 U.S. at 1001, 104 S.Ct. 2862, the Supreme Court stated, “we are mindful of the basic axiom that ‘ “[property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”’” (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972))) (omission in original). In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977), the United States Supreme Court stated that, “[ujnder our federal system, property ownership is not governed by a general federal law, but rather by the laws of the several States.” Id. at 378, 97 S.Ct. 582; see also Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155, 64 S.Ct. 474, 88 L.Ed. 635 (1944) (“The great body of law in this country which controls acquisition, transmission, and transfer of property, and defines the rights of its owners in relation to the state or to private parties, is found in the statutes and decisions of the state.”). The United States Court of Appeals for the Federal Circuit also has directed that state law determines whether trail use exceeds the scope of the easement. See generally Toews v. United States, 376 F.3d 1371; see also Preseault II, 100 F.3d at 1541-42. Therefore, to determine if the value of the properties in this case, which are located in South Carolina, should account for an existing easement on the property at the time of the taking, or if the properties should be valued as unencumbered by any easement in its “before taken” condition, the court looks to South Carolina law.
According to the plaintiffs, “[b]ut for the federal Trails Act’s preemption and destruction of their state-law reversionary title to their land,” they would have “regained the right to exclusive title and possession of their property unencumbered by any railroad right of way easement and unencumbered by any easement for public recreation.” The plaintiffs argue, therefore, that “the property which the government has taken from these landowners should be valued in the ‘before taken’ condition as unencumbered by those easements established or perpetuated by the federal Trails Act.” The plaintiffs assert that “[i]n a Trails Act taking, the STB’s issuance of the NITU ‘effectively eliminates’ and ‘destroys’ the landowner’s state-law ‘reversion-ary’ interest in their property.” Moreover, plaintiffs argue that under Federal Circuit precedent, a “compensable taking under the Trails Act arises ‘when the government takes action which deprives landowners of “possession of their property unencumbered by [an] easement.” ’ ” (quoting Navajo Nation v. United States, 631 F.3d 1268, 1275 (Fed.Cir.2011) (quoting Ladd v. United States, 630 F.3d 1015, 1023 (Fed.Cir.2010))) (brackets in original). Plaintiffs state, “issuance of the NITU, which invokes [16 U.S.C.] § 1247(d) and preempts state-law property interests, deprives the landowners of their right to possession of their property unencumbered by any easement.” (emphasis in original).
The defendant, however, contends that “the State of South Carolina did not abandon its property interest in the railroad corridor before the STB issued the NITU relevant to this case,” and the property remained “sub*536ject to a railroad easement in the ‘before’ condition.” The defendant argues that “the measurement of just compensation in this case must account for that encumbrance,” necessarily resulting in a lower valuation of the properties’ “before taken” value and, consequently, in a lower total measure of just compensation. The defendant asserts that the question for the court, therefore, is whether, when the NITU issued, was the land encumbered by the railroad easements, or had the easements been abandoned prior to the issuance of the NITU.
The South Carolina Supreme Court has stated that: “It is well settled that an easement may be lost by abandonment and in determining such question the intention of the owner to abandon is the primary inquiry.” Carolina Land Co., Inc. v. Bland, 265 S.C. 98, 217 S.E.2d 16, 21 (1975). According to South Carolina law:
The question of whether a railroad has abandoned its right-of-way is ordinarily a question of fact. Lorick & Lowrance, Inc. v. Southern Ry. Co., 87 S.C. 71, 68 S.E. 931 (1910). In Lorick & Lowrance the court said that in order to destroy the rights of the railroad to a right-of-way under a statute similar to the one in this case “there must be shown either a use separate and distinct from railroad purposes or nonuse for railroad purposes under such circumstances as to indicate an intention to abandon the right-of-way.” Id. at 74, 68 S.E. at 931. The doctrine of abandonment as it relates to railroads is stated in the case of Raleigh, C. & S. Ry. Co. v. McGuire, 171 N.C. 277, 280, 88 S.E. 337, 339 (1916):
It includes both the intention to abandon and the external act by which such intention is carried into effect. There must be a concurrence of the intention with the actual relinquishment of the property. It is well settled that to constitute an abandonment or renunciation of a claim to property there must be acts and conduct, positive, unequivocal and inconsistent with the claims of title.
Eldridge v. City of Greenwood, 300 S.C. 369, 388 S.E.2d 247, 250-51 (App.1989) (Eldridge I); see also Raulerson v. United States, 99 Fed.Cl. 9, 11 (2011).
In addition, the South Carolina Supreme Court has indicated that an external act expressing intent to abandon may be found in a number of ways:
The intention to abandon need not appear by express declaration, but may be inferred from all of the facts and circumstances of the case. It may be inferred from the acts and conduct of the owner and the nature and situation of the property, where there appears some clear and unmistakable affirmative act or series of acts clearly indicating, either a present intent to relinquish the easement, or purpose inconsistent with its further existence.
Carolina Land Co. v. Bland, 217 S.E.2d at 21. Subsequently, the South Carolina Supreme Court further explained:
‘“An abandonment occurs where the use for which the property is dedicated becomes impossible of execution, or where the object of the use for which the property is dedicated wholly fails. Any use which is not inconsistent with the declared purpose of a dedication will not support a charge of abandonment.’ ”
K & A Acquisition Grp., LLC v. Island Pointe, LLC, 383 S.C. 563, 682 S.E.2d 252, 259 (2009) (quoting City of Myrtle Beach v. Parker, 260 S.C. 475, 197 S.E.2d 290, 295-96 (1973) (quoting 26 C.J.S. Dedication § 63 at page 552)).
South Carolina courts also have followed “the longstanding rule that an easement is extinguished upon the railroad’s abandonment of the right of way for railway purposes.” Eldridge v. City of Greenwood, 331 S.C. 398, 503 S.E.2d 191, 203 (App.) (Eldridge II), reh’g denied (S.C.Ct.App.1998), cert. denied (S.C.1999).18 Moreover, South *537Carolina courts have held that railroads indicate intent to abandon a railroad easement by using an easement for “ ‘a use separate and distinct from railroad purposes or non-use for railroad purposes under such circumstances as to indicate an intention to abandon the right-of-way.’ ” Eldridge I, 388 S.E.2d at 250 (quoting Lorick & Lowrance v. Southern Ry. Co., 87 S.C. 71, 68 S.E. 931, 931 (1910)). “[A]n intent to abandon has been found in a railroad conveying its right-of-way to another for purposes other than a railroad.” Eldridge I, 388 S.E.2d at 251 (citing J.A. Connelly, Annotation, What Constitutes Abandonment of a Railroad Right of Way, 95 A.L.R.2d 468, 498 (1964)). Use for a non-railroad purpose constitutes abandonment because such use is “ ‘ “inconsistent with the declared purpose of a dedication.” ’ ” K & A Acquisition Grp., LLC v. Island Pointe, LLC, 682 S.E.2d at 259 (quoting City of Myrtle Beach v. Parker, 197 S.E.2d at 295-96 (quoting 26 C.J.S. Dedication § 63 at page 552)). Moreover, a non-railroad purpose constitutes abandonment because “a railroad company may only acquire property under authority of a statute or its charter and for purposes stated in its charter.” Eldridge I, 388 S.E.2d at 250 (citing 65 Am.Jur.2d Railroads § 47 (1972)). “A railroad company takes property for public use on condition that it be used only for the purposes set forth in its charter.” Eldridge I, 388 S.E.2d at 250. “Ownership of a right-of-way by a railroad company carries with it the right to use the property within the right-of-way for any purpose which furthers the business of the railroad.” Id.
Recreational trail use was not contemplated in 1857 when the South Carolina Legislature authorized the Port Royal Railroad to “construct a railroad,” for the benefit of creating and operating a railroad, and called it a “right of way for said railroad,” in the Port Royal Railroad Charter. Because the easements were acquired pursuant to the Port Royal Railroad Charter and subsequently conveyed by the Ports Authority to the BJWSA for purposes unrelated to operating a railroad, and use as a trail was not contemplated in the Port Royal Railroad Charter, under South Carolina law, the railroad easements were abandoned. Pursuant to South Carolina law, a conveyance for a purpose unrelated to operating a railroad, once consummated, terminates the railroad easement on the properties. See K & A Acquisition Grp., LLC v. Island Pointe, LLC, 682 S.E.2d at 259.
Similarly, the landowners who granted the Port Royal Railroad easements in the Fuller, Mack, Appleton and Mulford-Waterhouse deeds did so for railroad purposes, which ceased when the Ports Authority and the BJWSA signed their interim trail use/rail-banking agreement to transfer the easements and the NITU was subsequently issued on May 20, 2009. The conveyance in the Fuller deed, dated May 27, 1870, of a “piece parcel or strip of land” to the Port Royal Railroad Company in “which the said railroad is to be constructed,” refers repeatedly to the construction of the railroad in Beaufort County and expressly states that the conveyance is only to be for “uses & purposes of the said Road.” In the context of the rest of the Fuller deed, and the earlier references in the Fuller deed to the Port Royal Railroad, in the opinion of this court, the word “Road” refers to the Port Royal Railroad, and the location “along which to locate run and establish the said Railroad.” The Mack deed, dated July 23, 1870, also conveyed “to the said Rail Road Company the right of way over and through my said lot of land,” and the Port Royal Rail Road was chartered “to construct a railroad.” Consistent with the Fuller and Mack deeds, the Appleton deed, dated May 1, 1873, specifically granted an easement to the “Port Royal Rail Road Company” “for the use of the said Rail Road, which said three pieces of land have been surveyed and set apart by George Gage Engineer of said Port Royal Rail Road in accordance with an agreement between the parties herein.” Finally, the Mulford-Waterhouse deed, dated July 12,1881, specif*538ically stated that the “said strip the [sic] track of the said Port Royal and Augusta Railway Company has been constructed to have and to hold the said strip of land unto the said Port Royal and Augusta Railway Company, their successors and assigns for the purpose of the operation of the said road so long as the same shall be used for such highway and no longer.”
The easements acquired pursuant to the Port Royal Railroad Charter, and the Fuller, Mack, Appleton and Mulford-Water-house deeds, showed specific intent to convey for railroad purposes. When the Ports Authority transferred the railroad easements to the BJWSA, through the interim trail use/ra-ilbanking agreement, with the specific intent to convert to a public recreational trail, the easements no longer were to be used for railroad purposes. Moreover, the interim trail use/railbanking agreement, which preceded the issuance of the NITU, was “contingent upon the issuance of a NITU,” by its very terms. The sale and transfer of the easements by the Ports Authority to the BJWSA, a non-railroad entity, was accomplished by a document which stated it was a “contract to purchase and interim trail use/railbanking agreement,” “contingent upon the issuance of a NITU.” Beaufort B.R. Co. — Modified Rail Certificate, STB Finance Docket No. 34943, 2009 WL 1416460, at *7. The interim trail use/railbanking agreement referenced the National Trails System Act several times and the express intention of the parties was to create a recreational trail, as then confirmed by the issuance of the NITU. The Ports Authority plainly transferred its easement interests in the rail line for purposes other than railroad purposes, as the interim trail use/railbanking agreement was intended to transfer the easements for future use as a recreational trail. Although the interim trail use/railbanking agreement indicated that the right to operate a railroad also transferred, these words were overridden by the stated intention of the parties immediately to develop a recreational trail on the easements, which clearly demonstrated that the easements were no longer to be used for railroad purposes. Furthermore, there is nothing in record before the court to even suggest an intent to reactivate an operating railroad at any time in the future. When the NITU was issued, the railroad easements were extinguished because they no longer were to be used for the designated railroad purposes and plaintiffs properties no longer were burdened by the easements. The intent in the Port Royal Railroad Charter and of the Fuller, Mack, Appleton, and Mulford-Waterhouse source deed grantors was not consistent with uses other than railroad use and did not contemplate use as a recreational trail. Under South Carolina law, the easements, therefore, were abandoned, and, but for the issuance of the NITU, the property interests would have reverted to the plaintiffs in fee simple. The properties, therefore, should be valued as fee interests unencumbered by the easements.
In Raulerson v. United States, a Judge of the United States Court of Federal Claims applied South Carolina law to resolve valuation of easements which also formerly were held by the Port Royal Railroad, and which also were conveyed to the BJWSA for the creation of a recreational trail. See Raulerson v. United States, 99 Fed.Cl. 9. In a submission in the above captioned Ingram case, the government stated that the present plaintiffs’ allegations are “identical” to the plaintiffs’ allegations in Raulerson. In Rau-lerson, the court stated: “By conveying the easement to the BJWSA for non-railroad use, South Carolina would have abandoned its right to the easement under state law, causing the property to revert back to plaintiffs in fee simple. Because the Trails Act expressly prevents such reversion, plaintiffs have been subject to a taking that must be measured by reference to the fee simple value of their properties.” Id. at 11. As in the Ingram case, the Raulerson parties also disagreed on the measurement of just compensation. See id. at 10. The Judge in Raulerson found that provisions in the rail-banking agreement allowing for reactivation of a railroad in the future, with no present intent to do so, were insufficient to avoid abandonment. See id. at 12. The Raulerson court stated:
But for the Trails Act, the railbanking agreement would have effected an abandonment under South Carolina law, which *539would have caused the easement to revert back to plaintiffs. Plaintiffs’ damages must therefore be determined by reference to the fee simple value of their properties, unencumbered by any railroad easement. Ultimately, the measure of damages for just compensation must be the difference between the value of plaintiffs’ land unencumbered by a railroad easement and the value of plaintiffs’ land encumbered by a perpetual trail use easement subject to possible reactivation as a railroad.
Id.; see also Carolina Plating Works, Inc. v. United States, 102 Fed.Cl. 555, 560 (2011) (“Of course, nothing in the Rails-to-Trails Act precludes a finding that a railroad abandoned its right-of-way before the conversion to a trail, irrespective of the statute.” (citing Ellamae Phillips Co. v. United States, 564 F.3d at 1372)).
Another Judge of the United States Court of Federal Claims also considered abandonment in a Rails-to-Trails ease involving a South Carolina rail line, and how to value the takings at issue. See generally Carolina Plating Works, Inc. v. United States, 102 Fed.Cl. 555. The Judge wrote, “the parties disagree as to how to calculate the ‘before’ value of the property in question — that is, the value of the property before the takings in question.” Id. at 559. The Judge also noted that “[i]n Preseault II, the Federal Circuit held that whether an abandonment has occurred is a question of ‘fact, and the fact that question relates to a right of way taken by a railroad company does not make it one of law.’ ” Id. (quoting Preseault II, 100 F.3d at 1546). The Judge in Carolina Plating Works then found that, “[wjhile this court might ultimately conclude that, under South Carolina law, the railway in question was abandoned prior to the alleged takings here, the evidence at this point is too unsettled to allow the court to reach that conclusion as a matter of law.” Carolina Plating Works, Inc. v. United States, 102 Fed.Cl. at 562; see also id. at 561 (“In the court’s view, the existence of genuine issues of material fact precludes the court from determining, as a matter of South Carolina law, that the railroad easements on the properties in question were abandoned prior to the alleged takings here, so as to leave plaintiffs’ property unencumbered as of the time of the issuance of the NITU.”). In the case before the court, contrary to the finding in Carolina Plating Works, the Port Royal Railroad Charter and the Fuller, Mack, Appleton and Mulford-Waterhouse deeds indicate specific intent that the easements conveyed were to be used for railroad purposes. Moreover, the interim trail use/railbanking agreement was “contingent on the issuance of a NITU,” which gave clear intent that the easements were to be used for trail, not railroad, purposes. In addition, there is no evidence in the record to suggest that railroad operation is even contemplated for any time in the future.
No South Carolina ease has been identified which specifically has considered whether railbanking is a railroad purpose. Under South Carolina state law, however, a use separate and distinct from railroad purposes indicates intent to abandon a right of way. See Eldridge II, 503 S.E.2d at 202;19 Lorick & Lowrance, Inc. v. Southern Ry. Co., 68 S.E. at 931-32. The United States Court of Appeals for the Federal Circuit has stated, “the Government’s use of the property for a public trail constitutes a new, unauthorized, use.” Preseault II, 100 F.3d at 1549. The United States Court of Appeals for the Federal Circuit in Toews v. United States also has written:
[I]t appears beyond cavil that use of these [railroad] easements for a recreational trail — for walking, hiking, biking, picnicking, frisbee playing, with newly-added tarmac pavement, park benches, occasional billboards, and fences to enclose the trail-way — is not the same use made by a railroad, involving tracks, depots, and the running of trains. The different uses create different burdens. In the one case there was an occasional train passing through.... In the other, individuals or *540groups use the property, some passing along the trail, others pausing to engage in activities for short or long periods of time.
Toews v. United States, 376 F.3d at 1376. The Toews court further wrote, “[s]ome might think it better to have people strolling on one’s property than to have a freight train rumbling through. But that is not the point. The landowner’s grant authorized one set of uses, not the other.” Id. at 1376-77; see also Thompson v. United States, 101 Fed.Cl. at 433 (“In this case, by contrast, conversion of the Railroad easements into a public recreational trail transforms the nature of the easement and is substantially different from the original use.”).
The defendant makes several additional arguments. First, defendant contends that because the interim trail use/railbanking agreement stated that it sold by quit-claim its interests in the property, “together with and including all rails and improvements located thereon and all rights of SELLER to operate a railroad on, upon and across said Property,” the execution of the railbanking agreement is not evidence of an intent to abandon the easement. According to defendant, South Carolina has not abandoned use of the easements for railroad purposes, rather “additional use results in an additional burden on the land and not abandonment of the original easement.” The government states:
It is undisputed that South Carolina kept the tracks and ties in place, and maintained the tracks in a state of readiness for service. South Carolina kept the line in good repair, spending approximately $30,000 to keep the corridor operable. South Carolina also reserved its right to use the railroad easement in both its quit claim deed to BJWSA, as well as in the trail use agreement.
(citations omitted). In support, defendant cites to Troha v. United States, 692 F.Supp.2d 550, 564 (W.D.Pa.2010), a ease decided by the United States District Court for the Western District of Pennsylvania, which applied Pennsylvania law. In the case currently before the court, however, South Carolina State law, not Pennsylvania State law, controls. See Preseault I, 494 U.S. at 20, 110 S.Ct. 914 (O’Connor, J., concurring); Toews v. United States, 376 F.3d at 1371; Preseault II, 100 F.3d at 1536, 1545-46; Whispell Foreign Cars, Inc. v. United States, 97 Fed.Cl. at 331.
Defendant’s argument is too speculative. As indicated above, the record before the court does not contain even a suggestion that a railroad line would be reactivated across the easements at issue. As stated by the United States Court of Appeals for the Federal Circuit, “possible resumption of railroad operations at some undefined time in the future [is] of course self-serving and not indicative of the facts and circumstances” at the time of the taking, and does not defeat abandonment. See Preseault II, 100 F.3d at 1548. Although applying Missouri law, and not South Carolina law, a Judge of the United States Court of Federal Claims wrote:
There is no question that this potentiality, insofar as these particular easements are concerned, exists purely in the realm of the hypothetical. No evidence was offered of a present intent to reinstate rail service in the future. Cases discussed in connection with abandonment seem to make it clear that such contingent possibilities do not forestall abandonment.
Glosemeyer v. United States, 45 Fed.Cl. 771, 780 (2000) (footnotes omitted). Moreover, courts in this Circuit have declined to find railbanking a railroad purpose or even a relevant consideration for analysis of a claim for a Trails Act taking. See, e.g., Preseault II, 100 F.3d at 1554 (Rader, J., concurring) (Rejecting the railbanking argument as a “vague notion,” incapable of overriding the px-esent use of the property as a recreational trail); Capreal, Inc. v. United States, 99 Fed.Cl. 133, 146 (2011) (Interpreting Massachusetts law in which the court stated, “that railbanking is too hypothetical and unlikely to serve as a x’ailroad purpose.”); Nordhus Family Trust v. United States, 98 Fed.Cl. 331, 339 (2011) (Interpreting Kansas law, the court stated, “[i]n the present case, thei’e is no evidence of any plan to reactivate the rail sexvice — simply a speculative assertion by Defendant that some resumed rail seiviee could occur in the future. The transfer of the easement to entities completely uneon-*541nected with rail service, and the removal of all rail tracks on the corridor, lead the Court to conclude that any future rail use simply is unrealistic.”); Macy Elevator, Inc. v. United States, 97 Fed.Cl. at 730 (Interpreting Indiana law and relying on Preseault II to deem railbanking “irrelevant to the question of whether a taking has occurred.”); Rogers v. United States, 90 Fed.Cl. at 432 (Interpreting Florida law and indicating, “[h]ere, as in Preseault II, the use of the right-of-way as a public trail while preserving the right-of-way for future railroad activity was not something contemplated by the original parties to the Honoré conveyance back in 1910.”); Glosemeyer v. United States, 45 Fed.Cl. at 781 (Interpreting Missouri law, the court stated, “[i]n sum, neither component of railbanking — the preservation of the rail line for future use nor the ‘interim’ use of the easement as a recreation trail — constitutes a railroad purpose under Missouri law”).
Defendant also cites to the trial court decision of Schneider v. United States, No. 8:99-CV-315, 2003 WL 25711838 (D.Neb. Aug. 29, 2003), recons, denied (D.Neb. May 12, 2004), an unpublished decision issued by the United States District Court for the District of Nebraska. Defendant argues that the Schneider case addressed the issue of compensation to plaintiffs for a taking, “when a railroad easement burdened Plaintiffs’ property at the time the NITU was issued.” Defendant quotes Schneider as finding that a railroads’ adherence to “ ‘the discontinuance procedure outlined in the [Trails Act] cannot constitute the decisive acts necessary to establish an intent to abandon an easement under state law.’ ” Id. at *5. Defendant points out the District Court for the District of Nebraska “declined to rule that the railroad abandoned its interest before the STB issued the NITU.” (quoting Schneider v. United States, 2003 WL 25711838, at *5). The Schneider trial court decision, however, does not express the prevailing view on abandonment and is not binding on this court. Furthermore, Schneider, which was decided under Nebraska state law, does not assist in understanding how to apply South Carolina law.
CONCLUSION
In the above captioned case, but for issuance of the NITU, upon transfer of the easements for other than railroad purposes, the easements would have reverted to the plaintiffs in fee simple and plaintiffs would have held their property interests unencumbered by any easements. The measure of just compensation to the plaintiffs for the takings of plaintiffs’ property should capture the value of the reversionary interests in their “before taken” condition, unencumbered by the easements. Therefore, the plaintiffs’ motion for partial summary judgment is GRANTED. The defendant’s cross-motion for partial summary judgment is DENIED. Further proceedings will be established by separate Order.
IT IS SO ORDERED.
. In 1847, the State of South Carolina Senate and House of Representatives granted the Spar-tanburg and Union Railroad condemnation authority in the Spartanburg and Union Charter, which stated, in pertinent part:
That the said Spartanburg and Union Rail Road Company shall have the power and capacity to purchase, take and hold in fee simple [illegible] for years, to them and their successors, any lands, tenements, or hereditaments, that they may feel necessary for the site on and along which to locate, run and establish the Rail Road aforesaid, or to vary or to alter the plan or plane to such breadth or dimensions, through the whole course of the Road, as they may see fit....
That in any case where lands or private rights of way may be required by the said Company for the purposes aforesaid, and the same cannot be purchased from the owner or owners for want of agreement of the parties as to price, or from any other cause, the same make be taken by the Company at a valuation to be made by Commissioners....
That in the absence of any written contract between the said Company and the owner or owners of land, through which the said Rail Road may be constructed, in relation to said land, it shall be presumed that the land upon which the said Rail Road may be constructed, together with one hundred feet on each side of the centre of said road, has been granted to the said Company by the owner or owners thereof, and the said Company shall have good right and title to the same, (and shall have, hold and enjoy the same) unto them and their successors, so long as the same may be used only for the purpose of the said road and no longer....
. The STB assumed many of the Interstate Commerce Commission's (ICC) functions subsequent to the ICC's closure. See Interstate Commerce Commission Termination Act, Pub.L. 104-88, § 109 Stat. 803 (1995); see also Toews v. United States, 376 F.3d 1371 (Fed.Cir.), reh'g denied (Fed.Cir.2004).
. As noted in the Joint Stipulation of Facts: "A modified certificate is a license that operators of state-owned rail lines can obtain and relinquish simply by giving the STB notice.” Sections 1150.21-24 of Chapter 49 of the Code of Federal Regulations govern modified certificates of public convenience and necessity, and 49 C.F.R. § 1150.21, titled "scope of rules,” states that "[t]hese special rules apply to operations over abandoned rail lines, which have been acquired (through purchase or lease) by a State. The rail line must have fully abandoned, or [sic] approved for abandonment by the Board or a bankruptcy court.” 49 C.F.R. § 1150.21 (current as of May 10, 2012).
. In 2008, several landowners petitioned the STB to reconsider its decision to issue the modified certificate, claiming that the rail line had been abandoned. The STB found that Tangent’s discontinuation of service along the rail line in 2003 did not constitute consummation of abandonment because the state had maintained the rail lines subsequent to Tangent's discontinuation of service. See Beaufort R.R. Co.—Modified Rail Certificate, STB Finance Docket No. 34943, 2008 WL 727785.
. The parties have jointly stipulated that each plaintiff claimed a property interest at the time the STB issued the NITU, and each plaintiff also claimed a property interest at the time the plaintiffs filed the complaint.
. The Joint Stipulation of Facts submitted by the parties uses the terms "abut” and "underlie,” but does not define either term.
. The parties whose property interests are associated with the Port Royal Railroad Charter are: John Stevenson Barker and Mikell B. Barker (the Barker properties are identified by the Beaufort County Assessor’s Office by Property Identification (PID) # R100 006 000 0036 0000 and # R100 006 000 03 6A 0000); Beaufort Auto Repair & Towing, L.L.C (PID # R100 025 000 0013 0000); Beaufort Six Partners (PID #R100 029 0010 0000); E. Brent Cooper and Karen D. Cooper-Haber, as tenants in common (PID # R100 006 000 034B 0000); Deirdre D. DuBose (PID # R120 003 000 0440 0000); Michael A. Dunn (PID # R120 008 000 0559 0000); Earl R. Dupriest, III (PID #R120 008 000 023C 0000 and #R111 008 000 0541 0000) (this property abuts a segment of the right of way established by the Appleton deed); Glenn D. Guidroz and Loretta A. Guidroz (PID # R120 008 000 0406 0000); Madeline M. Harper Trust, c/o Frances H. Hill, Trustee, and Frances H. Hill (PID # R120 005 000 0352 0000); James C. Mann (PID # R100 006 000 122A 0000); Lila Meeks, Virginia Meeks Shuman, and Sidney N. Meeks, as joint owners (PID # R700 035 000 0002 0000), and Lila Meeks and the aforementioned joint owners, as tenants in common (PID # R700 026 000 0046 0000); Ronald Richard Melter (PID # R120 003 000 686F 0000); Peter Miletic (PID # R120 008 000 0555 0000, #R700 019 000 0095 0000); Jack F. and Christina N. Nietert (PID # R120 006 000 0280 0000); Todd Palom-bo and Lewis P. Palombo, as tenants in common (PID # R100 006 000 0163 0000); Shetyl Pink-ney-Maas (PID #R700 019 000 0181 0000); James Earl Simmons and Lana Michelle Simmons (PID # R120 005 000 0369 0000); Peter L. Singleton and Louise Botta Singleton (PID # R120 006 000 0481 0000); John J. Smith and Georgia L. Van Zyle (PID #R700 036 000 012E 0000); South Carolina Coast & Lakes, LLC (PID # R122 029 000 0253 0000, #R122 029 000 0401 0000); W. Richard Steele and Virginia M. Steele (PID #R100 006 000 0034 0000); the Town of Yemassee (PID #R710 001 000 0042 0000); the Trask Family Partnership (PID # R120 025 000 0012 0000, #R100 016 000A 0126 000, # R100 020 000 119A 0000); James H. Trask (PID #R100 025 000 012C 0000); *523Mark P. Ward (PID # R700 026 000 0035 0000); Debra Washington (PID #R100 020 000 118A 0000); Shirley Young (PID #R100 020 000 096B 0000); Lake Moultrie Water Co., Inc. (PID # R100 029 000 0254 0000) and Peoples Gas & Appliance of Beaufort, S.C., Inc. (PID #R100 029 000 0250 0000). The PID numbers in footnotes 7-11 are included for reference for future proceedings in the case. The parties shall confer and confirm that the PID numbers are correct and correspond to the correct plaintiffs.
. The parties whose property interests are associated with the Fuller deed are the heirs of Arthur Bowman. While the plaintiffs indicate that the deed to the Bowman land (PID # R700 019 000 0058 0000) is not available, plaintiffs submitted a copy of the Beaufort County Assessor’s Office 2009 tax record for this property with the second amended complaint to indicate that the heirs of Arthur Bowman claim title to the property in question. Moreover, the parties jointly stipulated that, "[t]he Heirs of Arthur Bowman acquired property in Beaufort County on January 30, 1952 by that deed recorded in the Beaufort County Recorder of Deeds' Office in Book 70, Page 431.” (internal citation omitted).
. The party whose property interest is associated with the Mack deed is Paula Bellamy, Co-Trustee of the Caroline L. Bellamy Revocable Trust (PID # R100 025 000 018A 0000).
. The parties whose property interests are associated with the Appleton deed are: Affordable Home Rentals, Inc. (PID #R110 008 000 0141 0000); Fred S. Boggess (PID #R120 008 000 0416 0000); Bichvan T. Dang and Nho-Tran (PID # R120 008 000 0412 0000); Philip Fairbanks (PID # R110 010 000 042A 0000); Charles E. Friedman (PID #R110 010 000 0042 0000); Craig R. Ingram (PID #R110 008 0126 0000); Garner Jones (PID #R110 008 000 0143 0000); Reggie Newton Lohr, Jr. and Judith Moran Lohr (PID # R110 008 000 0138 0000, #R110 008 000 0131 0000, R110 008 000 0132 0000); Erin L. and Marsha D. Peets (PID #R110 008 000 0665, # R110 008 000 0666 0000); Sea Island Rentals, Inc. (PID #R110 008 000 0134 0000, #R110 008 000 0130 0000); Ernie and Laurie A. Watts (PID # R120 008 000 0396 0000); and Martha M. Woods (PID #R120 008 000 0393 0000).
. The parties whose property interests are associated with the Mulford-Waterhouse deed are: Nibil LLC (PID # R120 003 000 712A 0000); and Donald P. O’Laughlin and Gloria H. O’Laughlin (PID #R120 005 000 0410 0000).
. The parenthetical “(sp?)” was included in the transcription of the Fuller deed as an exhibit to the Joint Stipulation of Facts, but does not appear to be included in the photocopy of the original hand-written copy of the Fuller deed.
. The word "illegible,” which appears twice in the Fuller deed was included in the transcription of the Fuller deed as an exhibit to the Joint Stipulation of Facts, but does not appear to be included in the photocopy of the original handwritten copy of the Fuller deed.
. As in the Fuller deed, the word "illegible” was included in the transcription of the Appleton deed as an exhibit to the Joint Stipulation of Facts, but does not appear to be included in the photocopy of the original hand-written copy of the Appleton deed.
. As in the Fuller and Appleton deeds, the word “illegible" was included in the transcription of the Waterhouse-Mulford deed as an exhibit to the Joint Stipulation of Facts, but does not appear to be included in the photocopy of the original hand-written copy of the Waterhouse-Mulford deed.
. Preseault v. Interstate Commerce Commission, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1, is a 1990 United States Supreme Court decision and is sometimes referred to as Preseault I. In Preseault I, the Supreme Court concluded that although the Trails Act represented a valid exercise of Congressional power under the Commerce Clause of the United States Constitution, when railroad rights of way are converted to interim public trail use under the Trails Act, the Trails Act taking of private property cannot occur without just compensation. See generally Preseault I, 494 U.S. 1, 110 S.Ct. 914. Subsequently, in 1996, the United States Court of Appeals for the Federal Circuit issued a decision also involving the Preseaults, Preseault v. United States, 100 F.3d 1525 (Fed.Cir.1996), sometimes referred to as Preseault II. As explained by the Federal Circuit in Preseault II, "[t]he Preseaults own a fee simple interest in a tract of land.... The dispute centers on three parcels within this tract, areas over which the original railroad right-of-way ran.” Id. at 1531. In Preseault II, the Federal Circuit concluded that ”[w]hen state-defined property rights are destroyed by the Federal Government's preemptive power in circumstances such as those here before us, the owner of those rights is due just compensation.” Preseault II, 100 F.3d at 1552.
. The Trails Act indicates that a trail provider may be "a State, political subdivision, or qualified private organization [that] is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way.” 16 U.S.C. § 1247(d).
. In Eldridge II, 503 S.E.2d at 199, although the issue was raised that "any taking of reversionary interests by the ICC's decision is a matter for federal and not state jurisdiction,” the court disagreed and stated:
Neither the record before us nor the ICC decisions affecting this property mention any Trails Act issues. The relevant portions of the Trails Act were not enacted until March 1983. The ICC approved abandonment of the lines at *537issue here in 1978, and the trial judge found that the rails were removed between November 1982 and July 1983. Since no Trails Act conversion occurred, Preseault [7] does not require the Respondents to seek compensation under federal law.
Id. at 200.
. The Eldridge II court also indicated that "[e]ven if we assume the Railroad did not abandon its easement prior to execution of the quitclaim deeds, we still reject the 'substitution of transportation’ argument and conclude the easement was extinguished.” Eldridge II, 503 S.E.2d at 202. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218283/ | OPINION
HORN, J.
FINDINGS OF FACT
This ease involves a post-award bid protest brought by the plaintiff, Glenn Defense Marine (Asia), PTE Ltd. (Glenn Defense Marine), and is before the court on the parties’ cross-motions for judgment on the administrative record. On November 3, 2009, the Department of the Navy, Naval Supply Systems Command, Fleet Logistics Center Yokosuka (Navy) issued a Request for Proposals (RFP) N62649-09-R-0041 (the solicitation) for maritime husbanding support2 for United States Navy ships visiting ports and operating in any one of four regions in the Western Pacific and Indian Ocean. The solicitation contemplated the award of four separate contracts, one for each one of the four regions.3 Offerors to. the solicitation were instructed to submit separate proposals for each region for which they sought a contract. The contracts were to be awarded as firm-fixed-priee, indefinite delivery/indefinite quantity contracts for one base year, with the possibility of four option years,4 with contract performance to begin 30 days after contract award. The solicitation indicated that the minimum quantity of each contract would be $100,000.00. Included with the solicitation was a Performance Work Statement, which identified the tasks the contractor was required to perform, including management services, sewage removal and disposal, and force protection. The Performance Work Statement stated that the contractor “shall provide timely delivery of quality goods and services at fair and reasonable prices to ships making port visits.” On June 24, 2011, Contract No. N62649-11-D-0015 for Region 1 (South Asia) (the contract) was awarded to MLS-Multinational Logistic Services Ltd. (MLS). MLS is the defendant-intervenor in this case. The current protest concerns the award to MLS regarding the contract for South Asia.5
The solicitation’s Evaluation and Source Selection Decision stated:
1. The Government will award contracts by Region resulting from this solicitation to the responsible offeror(s) whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered.
2. An offer must be acceptable, taking no exception to the terms and conditions, in order for the offeror to be eligible for award. The Government will not award a contract on the basis of an unacceptable offer. An acceptable offer shall also include an ACCEPTABLE Security Plan.
3. The Government will use the trade-off process described in FAR 15.101-1.6 The *546evaluation will assess the offeror’s Technical Approach and Past Performance. This assessment will be used as a means of evaluating the offeror’s ability to successfully meet the requirements of the solicitation.
4. In order to select the awardee, the Government will compare offerors’ non-price factors (i.e., Technical Approach and Past Performance) and Price.
5. Consistent with the trade-off process, the Government will consider award to other than the lowest priced offeror or other than the highest rated non-price factors offeror. The Government may accept other than the lowest priced proposal.
The solicitation also stated that “[t]he following factors, in order of importance, shall be used to evaluate acceptable offers: Technical Approach, Past Performance, and Price. The non-price factors, when combined, are significantly more important than price.”7 For the Technical Approach factor, the solicitation stated that the government would evaluate the offeror’s proposal based on the offeror’s understanding of what is required by the contract. The three aspects of the Technical Approach factor were: understanding the requirement, management approach, and quality assurance, with each aspect given equal consideration.
For the Past Performance factor, the solicitation stated that “Past Performance is a measure of the degree to which an offeror satisfied its customers in the past by performing its contractual obligations on relevant directly related contracts and subcontracts (or partnerships or joint ventures) that are similar in scope, magnitude, and complexity to that required by the solicitation (completed within the past 3 years or currently in progress).” The solicitation continued:
There are four areas to be reviewed: Level of Capability, Efficiency, and Effectiveness in Providing Service; Conformance to the Terms and Conditions of the Contract; Level of Reasonableness and Cooperation; and Level of Commitment to Good Customer Service. Under the Past Performance factor, each of the areas to be reviewed will be given equal consideration. Within each area, the elements making up the area will be given equal consideration. Equal consideration means equal importance.
Under the Level of Capability, Efficiency, and Effectiveness in Providing Service area, the elements were “[rjeliability and consistency of the company’s key personnel,” “[c]a-pability to manage subcontractors,” and “[ejapability of managing and controlling the contract.” Under the Conformance to the Terms and Conditions of the Contract area, the elements were “[performance within negotiated prices,” and “[tjimeliness in providing goods or services in accordance with the contract schedule.” Under the Level of Reasonableness and Cooperation area, the elements were “[rjesponsiveness to changes in requirements,” “[e]ase of communication,” and “[tjimely response in dealing with problems and ability to find cost effective solutions.” The only element of the Level of Commitment to Good Customer Service area was “[ejvidence of business practices resulting in savings to the Government or to lower overall port visit costs.”
The solicitation stated that if an offeror’s past performance was not similar in scope, *547complexity, magnitude or otherwise was not relevant to the solicitation, the Navy would take that into account and evaluate the proposal accordingly. Section 8.2.4 of the solicitation stated:
In the case of an offeror whose past performance is somehow not similar in scope, complexity, or magnitude, or otherwise lacks relevance to some degree then the Government will take this into consideration and evaluate accordingly (for example, a “customer” may give an offeror “outstanding” on its performance on the customer’s contract, but if the contract in question is smaller or otherwise lacks relevance, then the overall rating given by the Government may be adjusted as it is less relevant).
The solicitation cautioned that in the case of an offeror without relevant past performance, that offeror may not be evaluated either favorably or unfavorably on past performance, and that the Navy would consider past performance along with the other non-price evaluation factors. The solicitation also stated that, “the proposal of an offeror with no record of relevant Past Performance or for whom information on Past Performance is not available, may not represent the most advantageous proposal to the Government, and thus may be an unsuccessful proposal when compared to the proposals of other offerors.”
In order for the Navy to evaluate past performance, an offeror was required to submit a past performance matrix, as well as past performance reference information sheets for three to five customers identified on the past performance matrix. As described in the solicitation, the past performance matrix was to list and describe:
all directly related or similar Government or commercial contracts or subcontracts currently being performed, or completed in the past three years which are similar in scope, magnitude and complexity to that which is detailed in this solicitation. The information for contracts and subcontracts shall be for relevant contracts and subcontracts currently in process or completed within the past (3) [sic] years.
The Past Performance Evaluation Team received performance reference information sheets in the form of past performance questionnaires from some of the offerors’ references identified on the past performance matrix. The past performance questionnaires asked the references to apply the following five ratings:
Outstanding (0) — exceeded requirements, highest quality, extremely strong expectation of customer satisfaction;
Better (B) — met requirements, exceeded some, minor problems were corrected; Satisfactory (S) — performance was adequate, corrective action addressing problems had some effect;
Less than Satisfactory (LS) — did not meet requirements, corrective actions addressing serious problems had little effect. Neutral (N) — no information available!.]
The references were asked to give an overall rating of the offeror, as well to rate each of the elements within the four areas (Level of Capability, Efficiency, and Effectiveness; Conformance to the Terms and Conditions of the Contract; Reasonableness and Cooperation; and Level of Commitment to Good Customer Service).8 The five ratings, Outstanding, Better, Satisfactory, Less than Satisfactory, and Neutral, were the same ratings that the Past Performance Evaluation Team used to rate an offeror’s past performance. As indicated in the Source Selection Plan:
The evaluation team will use the following adjectives in evaluating past performance:
OUTSTANDING (0) [VERY LOW PERFORMANCE RISK] — The offeror’s performance of previously awarded relevant contracts met or exceeded all requirements and provided exceptional performance/quality results.... The offeror’s past performance record leads to an extremely strong expectation of customer satisfaction and successful performance.
BETTER (B) [LOW PERFORMANCE RISK] — The offeror’s performance of previously awarded relevant contracts met or *548exceeded some requirements and provided high performance/quality results.... The offeror’s past performance record leads to a strong expectation of customer satisfaction and successful performance.
SATISFACTORY [sic] [MODERATE PERFORMANCE RISK] — The offeror’s performance of previously awarded relevant contracts met requirements and provided accepted performance/quality results .... The offeror’s past performance record leads to an expectation of acceptable customer satisfaction and successful performance.
LESS THAN SATISFACTORY (LS) [HIGH PERFORMANCE RISK] — The offeror’s performance of previously awarded relevant contracts did not meet some requirements and provided marginal performance/quality results.... The offeror’s past performance record leads to an expectation of marginal customer satisfaction and less than fully successful performance.
NEUTRAL (N) — The offeror lacks a record of relevant or available past performance history. There is no expectation of either successful or unsuccessful performance based on the offeror’s past performance record.
(emphasis in original).
The solicitation stated that the Navy intended to award a single contract for each region and any proposals needed to include a price for each region for which the offeror was seeking award. For the Price factor, the solicitation stated that, “[t]he Government intends to perform price analysis using the various techniques and procedures outlined in FAR Part 15.404-1. The Government may reject an offer if prices are unbalanced or if they are other than fair and reasonable.” The solicitation also indicated that total evaluated price would be “calculated by applying the offerors’ proposed unit prices for ‘targeted lots’ to a sample of logistical requirements (LOGREQs) based upon historical port visit data for those ‘targeted lots,’ ” which were identified in the Performance Work Statement. Furthermore, for award purposes, an offeror’s evaluated price would not include port tariff items, provisions, fuel, incidentals, or any to be determined items. The final Business Clearance Memorandum explained that “the Government projects minimal visits to non-targeted ports. Many of the non-targeted ports are usually in austere locations where infrastructure is minimal and as a result, market pricing is scarce.” In addition, the solicitation indicated that “[Consistent with the trade-off process, the Government will consider award to other than the lowest priced offeror or other than the highest rated non-price factors offeror. The Government may accept other than the lowest priced proposal.”
The Navy received four proposals in response to the solicitation for Region 1, one proposal each from: plaintiff Glenn Defense Marine, intervenor MLS, [deleted], and [deleted]. The initial evaluations for the offer-ors in Region 1 (South Asia) were:
Offeror Evaluated Price Technical Past Performance Security Plan
Glenn Defense $[deleted] Better Less than Acceptable Marine_Satisfactory9_
MLS_$[deleted]_Better Better_Acceptable
[Deleted] $[deleted] Better Satisfactory ' Unacceptable
[Deleted]_$[deleted]_Better_Better_Acceptable
Independent Govern- $[deleted] ment Estimate
*549Only Glenn Defense Marine and MLS were determined to have submitted proposals which were in the competitive range for Region 1, as both [deleted] and [deleted] were eliminated from consideration after their evaluated prices were calculated. In the initial proposals, Glenn Defense Marine’s evaluated price for Region 1 was $[deleted], and MLS’ evaluated price for Region 1 was $[deleted], or [deleted]% higher than that of Glenn Defense Marine.
As required by the solicitation, Glenn Defense Marine submitted a past performance matrix with its past performance proposal. For Region 1, Glenn Defense Marine’s past performance matrix included descriptions of 19 contracts and task orders for husbanding services in the Western Pacific and Indian Ocean. Glenn Defense Marine also submitted five past performance references with its proposal, four of which provided feedback to the Past Performance Evaluation Team. Of the four references that responded, the Past Performance Evaluation Team determined that one reference regarding Contract No. N40345-09-D-0003, for “Husbanding Services South Asia,” performed by Glenn Defense Marine for the Navy in South Asia and the Indian Ocean Islands was highly relevant (the highly relevant contract), and the other three references were moderately relevant.10 The Past Performance Evaluation Team also solicited a past performance evaluation from the then-current, contracting officer of the highly relevant contract, [deleted], Chief of the Husbanding Branch at the FLC [Navy Fleet Logistics Center] Singapore.
For the highly relevant contract, one reviewer, [deleted] of the FLC Yokosuka, Site Singapore, the lead contract specialist for the highly relevant contract, gave Glenn Defense Marine an overall evaluation of Better, while the then-current, contracting officer gave an overall evaluation of Satisfactory. For Glenn Defense Marine’s three moderately relevant references, two reviewers, [deleted], who also was a reviewer on Glenn Defense Marine’s highly relevant contract, Contract No. N68047-06-D-0003 (husbanding services in Singapore), and [deleted], U.S. Naval At-taché — Kuala Lumpur, on Contract No. N68047-04-D-0001 (husbanding services in Brunei, Indonesia, Malaysia, and East Timor), gave overall evaluations of Outstanding. The final reviewer, [deleted], U.S. Naval Attaehé — Bangkok, on Contract No. N40345-06-D-0001 (husbanding services in Thailand), gave an overall evaluation of Better. All the reviewers gave varied reviews for the elements in the four areas (the Level of Capability, Efficiency, and Effectiveness in Providing Service; Conformance to the Terms and Conditions of the Contract; the Level of Reasonableness and Cooperation; and the Level of Commitment to Good Customer Service). Notably, for the sole element in the Level of Commitment to Good Customer Service area, “evidence of business practices resulting in savings to the government or to lower overall port visit costs,” the only ratings given by the reviewers were Satisfactory and Less than Satisfactory, with the then-current, contracting officer of the highly relevant contract, [deleted], giving Glenn Defense Marine a Less than Satisfactory rating. [Deleted] gave plaintiff three additional Less than Satisfactory ratings for the elements: ease of communication, timely response to problems and ability to find effective solutions, and performance within negotiated price.
[Deleted] also included a number of critical narrative comments in his evaluation, noting that a number of pre-visit estimates were received late, government contract specialists routinely had to request corrections, and email responses were routinely delayed. The contracting officer also stated-that two negative past performance letters were sent to Glenn Defense Marine, one for not providing force protection barriers and one for failing to provide a “proposed pricing plan for insuring that non-priced items are offered at fair and reasonable prices.” [Deleted], contract specialist at FLC Singapore, as a reviewer of *550a moderately relevant contract, also indicated in her additional comments that Glenn Defense Marine received a negative past performance letter regarding Glenn Defense Marine’s customer service not being responsive to requests.
Like Glenn Defense Marine, MLS submitted a past performance matrix with its past performance proposal, which included descriptions of 42 contracts. As required by the solicitation, MLS provided past performance reference information sheets for a number of customers identified on the past performance matrix. The Past Performance Evaluation Team sought comments from the points of contact identified on MLS’ past performance reference information sheets, and ultimately received three past performance questionnaires for MLS, three past performance questionnaires for MLS’ subcontractor, [deleted], and two past performance questionnaires for another MLS subcontractor, [deleted].11 The Past Performance Evaluation Team determined that the three past performance questionnaires submitted for MLS were only moderately relevant contract references, none of which were performed in South Asia, and that the remaining four past performance questionnaires submitted for [deleted] and [deleted] were highly relevant contract references. For [deleted], a reviewer, [deleted], gave the subcontractor an Outstanding overall rating. For [deleted], two reviewers, [deleted] and [deleted], gave the subcontractor an overall rating of Better, and one, [deleted], assigned an overall rating of Outstanding. For the two reviewers assigning overall ratings of Outstanding, [deleted] and [deleted], every element, except one for [deleted] was rated Outstanding (the other rating was Better). For the two reviewers assigning ratings of Better, there was a mixture of Outstandings and Betters, and one reviewer, [deleted], assigned two ratings of Satisfactory, one for performance within the negotiated price, and one for ease of communication.
The Past Performance Evaluation Team was comprised of three people, the Past Performance Evaluation Team Chairman, [deleted], Ashore Contracts Division, Far East Contracting Department, FISC (United States Fleet and Industrial Supply Center), Yokosuka, Japan, and two members, [deleted], Director, Policy and Oversight Division, Far East Contracting Department, FISC, Yokosuka, Japan, and [deleted], Director, Afloat Contracts Division, FISC, Yokosuka, Japan. In the Past Performance Evaluation Team’s initial overall evaluation of Glenn Defense Marine’s past performance, the two members of the Past Performance Evaluation Team, [deleted] and [deleted], initially found that Glenn Defense Marine’s past performance was Satisfactory. [Deleted] noted in his assessment, however, “[although there were several ‘Outstanding (0)’ ratings on the offeror’s past performance (i.e., individual questionnaires), those ratings are not substantiated by specific comments unlike several ‘Less than Satisfactory (LS)’ ratings.” [Deleted] stated that “[c]omments in the PPI questionnaires and CPARS [Contractor Performance Assessment Reporting System] were a mixture of ‘outstanding, to better, satisfactory to less satisfactory.’ However, on the most highly rated (high relevancy) and some of the lesser rated (moderate relevancy) contacts, the contractor had various degrees of successes that brought performance to an acceptable level which was seen as a trend across all high and moderately relevant contracts.”12
The assessments of [deleted] and [deleted] were adopted into the Past Performance Evaluation Team’s Summary Report, prepared by the Past Performance Evaluation Team Chairman, [deleted], on October 30, *5512010, and concurred with by the two Past Performance Evaluation Team members, [deleted] and [deleted], on November 2, 2010. The Past Performance Evaluation Team’s Summary Report concluded that Glenn Defense Marine should be assigned an overall rating of Satisfactory, noting “PPET rated the majority of the assessment areas as being satisfactory. This meant that the offer- or’s past performance record led to an expectation of acceptable customer satisfaction and successful performance. Based on the above, the PPET rated this offeror’s overall rating as being ‘Satisfactory.’ ” In its report, however, the Past Performance Evaluation Team cautioned, “[although there were some ‘Outstanding (0)’ ratings provided by offeror’s references on the offeror’s past performance (i.e., individual area questions), these positive ratings were not necessarily substantiated by convincing comments unlike several ‘Less than Satisfactory (LS)’ ratings.”
On November 4, 2010, the Chairman of the Past Performance Evaluation Team, [deleted], forwarded the Summary Report to the Primary Contracting Officer/Source Selection Authority, [deleted], who, on the same day, forwarded a draft pre-negotiation Business Clearance Memorandum to [deleted], a member of the Naval Supply System Command Contract Review Board (Board). The draft pre-negotiation Business Clearance Memorandum reflected the Past Performance Evaluation Team’s Region 1 overall past performance rating for Glenn Defense Marine as Satisfactory and the Primary Contracting Officer/Source Selection Authority determinations, as a result of which Glenn Defense Marine had been assessed a rating of “SATISFACTORY [Moderate Performance Risk].” (emphasis in original). The draft pre-negotiation Business Clearance Memorandum also reflected the concerns raised on the past performance questionnaires. Thereafter, Board member [deleted] raised concerns with the Primary Contracting Officer/Source Selection Authority about Glenn Defense Marine’s proposals for a number of regions, including Region 1, and stated “a ‘Satisfactory’ rating appears dubious at best.”13 The Primary Contracting Officer/Source Selection Authority responded that: “After discussing this with the PPET Chairman, he agreed it was a borderline decision. Although there were some contract admin [sic] performance issues, on the whole, especially when considering the very positive feedback from the end user (Fleet and DAO [United States Defense Attaché Office]), the PPET felt in balance a SATISFACTORY rating was appropriate.”
After indicating Glenn Defense Marine’s past performance rating was a borderline decision, the Past Performance Evaluation Team Chairman reached out to the two members of the Past Performance Evaluation Team on December 16, 2010, and stated that because of the Primary Contracting Offi-eer/Source Selection Authority’s conversation with the Board member, [deleted], the Naval Supply System Command Contract Review Board was concerned that “[b]ased on the current write up and the rating definition, GDM’s14 PPI [Past Performance Information] rating for Regions 1, 2 and 3 should be ‘Less than Satisfactory (High Performance Risk)’ vice ‘Satisfactory (Moderate Performance Risk)’ unless we can beef up the existing statement for the current rating. It may be easier for us to adjust the ratings downward based on the currently available negative PPI.” The Past Performance Evaluation Team Chairman urged the members, “go back to your evaluation sheets for GDM whether [sic] you can readjust the GDM’s ratings for those three regions,” and concluded, “[i]f it would be difficult for you to readjust them, please let me know.”
The same day, December 16, 2010, one Past Performance Evaluation Team member, [deleted], replied to the Past Performance Evaluation Team Chairman, [deleted], and indicated that “based on the below guidance,15 GMDA’s PPI ratings for Region 1 *552through 3 have been revised.” On that same day, December 16, 2010, the Past Performance Evaluation Team Chairman sent a revised Summary Report to the Primary Contracting Officer/Source Selection Authority and indicated that one of the Past Performance Evaluation Team members, [deleted], would provide the Chairman with the revised rating sheets at a later time. The Chairman stated: “Based on your guidance and advice, the PPET has revised the original ratings as shown in the attachment....”
Past Performance Evaluation Team member [deleted] lowered his overall rating for Glenn Defense Marine’s past performance to Less than Satisfactory. His comments included a nearly identical observation as before, “[a]lthough there were several ‘Outstanding (0)’ ratings on the offeror’s past performance (i.e., individual questionnaires submitted by referenced personnel), those ratings are not substantiated by specific comments unlike several ‘Less than Satisfactory (LS)’ [sic] ratings.” He added, “[a]ll information used for the above LS ratings is highly relevant to this region and also substantiated by specific and detailed comments.” [Deleted] also lowered his overall rating for Glenn Defense Marine’s past performance to Less than Satisfactory, and his comments were likewise similar to his earlier comments, although he noted: “Lack of effective management of subcontractors’ performance and controlling contract cost had an overall effect on substandard business practices of which savings to the Government was not always maximized during port visits.”
Reflecting these changes, the Past Performance Evaluation Team issued a revised Summary Report for Region 1, albeit still reflecting the dates of October 30-November 2, 2010.16 The revised Summary Report concluded “PPET rated the majority of the assessment areas as being less than satisfactory. This meant that the offeror’s past performance record led to an expectation of marginal customer satisfaction and less than fully successful performance. Based on the above, the PPET rated this offeror’s [Glenn Defense Marine’s] overall rating as being ‘Less than Satisfactory.’ ”
The Past Performance Evaluation Team issued an initial Summary Report for MLS, which also reflected the dates of October 30-November 2, 2010. In contrast to Glenn Defense Marine’s Past Performance Evaluation, MLS was awarded a past performance rating of Better, with the summary notes indicating, “PPET rated the [sic] most of the assessment areas as being better. The offer- or was very cooperative and committed to customer service. This meant that the offer- or’s past performance record led to a strong expectation of customer satisfaction and successful performance. Based on the above, the PPET rated this offeror’s overall rating as being ‘Bette.’ ” In the Summary Report for MLS, for each area of Past Performance, Level of Capability, Efficiency, and Effectiveness in Providing Service; Conformance to the Terms and Conditions of the Contract; Level of Reasonableness and Cooperation; and Level of Commitment to Good Customer Service, and each element of each area, the PPET noted that there were “no major issues or weaknesses_” MLS’ past performance rating, although re-evaluated, was not revised by the Past Performance Evaluation Team.
After the initial evaluations were completed, the Primary Contracting Offieer/Source Selection Authority prepared the pre-negoti-ation Business Clearance Memorandum to seek approval to establish a competitive range and open discussions, which was approved on December 30, 2010. As noted by the Primary Contracting Officer/Source Selection Authority, “[b]ased on the evaluation criteria of the solicitation the Contracting Officer has determined that GDM and MLS are the most highly rated proposals and should be retained in the competitive range.” *553The Primary Contracting Officer/Source Selection Authority continued, Glenn Defense Marine’s “proposal is highly rated since it has the lowest overall price, a technical proposal rated as BETTER, past performance rated as LESS THAN SATISFACTORY, and an ACCEPTABLE security plan. MLS’s proposal is also highly rated since it has the second lowest evaluated price which is considered competitive, a technical proposal rated as BETTER, past performance rated as BETTER, and an ACCEPTABLE security plan.” (emphasis in original).
As noted in the final Business Clearance Memorandum, “[t]he purpose of the discussions were [sic] to point out weaknesses or deficiencies in the offeror’s technical approach; provide an opportunity to respond to any negative or missing past performance information; and identify pricing outliers that were considered high or low.” On January 4, 2011, the Primary Contracting Officer/Source Selection Authority raised eight past performance issues with Glenn Defense Marine, based on comments in the past performance questionnaires, including key personnel being less than responsive, significant differences between estimated prices and final invoices, purchasing plans never provided to the government, failure to obtain the required compensation for nonprieed items, and communications difficulties in reaching Glenn Defense Marine personnel. Glenn Defense Marine timely responded in writing to the issues raised by January 18, 2011.17
In the final Past Performance Evaluation Team Summary Report, both members of the Past Performance Evaluation Team noted Glenn Defense Marine’s response to the discussion questions and the proposed corrective actions Glenn Defense Marine indicated it would take, but both members also noted that the proposed corrective actions in response to the discussion questions could not be verified. [Deleted] wrote: “The offer- or submitted additional information as a result of the PPI discussions with the KO.... [T]he offeror provided responses (including corrective actions being taken/to be taken) to the issues stated above. However, the majority of them cannot be verified now or does [sic] not fully address issues/deficiencies although some of their responses seem reasonable to resolve them.”
The Primary Contracting Officer/Source Selection Authority noted that:
The PPET reviewed GDM’s responses to the 8 past performance issues. Based upon GDM’s responses, the PPET’s overall rating for GDM did not change. The PPET determined that GDM’s response to the past performance issue about subcontractor management satisfactorily resolved the concerns with that past performance issue. GDM’s response to the other 7 issues did not satisfactorily resolve the past performance concerns raised by the PPET.
Each offeror in the competitive range was afforded an opportunity to submit a final revised proposal. Both Glenn Defense Marine and MLS timely submitted final revised proposals on February 22, 2011. The final evaluations for the remaining two offerors were:
Offeror_Evaluated Price Technical Past Performance Security Plan
Glenn Defense $1,548,200.00 Better Less than Acceptable Marine_Satisfactory18_
MLS_$2,537,414,00_Better_Better_Acceptable
Independent Govern- $[deleted] ment Estimate
*554As in the initial evaluation, Glenn Defense Marine and MLS both achieved a Technical Approach rating of Better and each of their security plans was deemed acceptable in the final evaluation. Similarly, as in both the initial evaluation and in the final evaluation, Glenn Defense Marine’s past performance rating was Less than Satisfactory, while MLS’ past performance rating was Better. In its revised proposal, MLS’ price of $2,537,414.00 was $989,214.00 higher, or approximately 64% higher than Glenn Defense Marine’s price of $1,548,200.00.
Regarding the past performance rating for Glenn Defense Marine in the final, February 23, 2011,19 evaluation, the Past Performance Evaluation Team’s Summary Report indicated:
For Region 1, this offeror’s [Glenn Defense Marine’s] past performance on previously awarded relevant contracts did not meet some significant requirements. Although the offeror was generally responsive to changes in requirements, provided timely services and had reasonably good control over managing subcontractors, there were several noted deficiencies in its performance when it came to the reliability and consistency of its customer service practices, transparency in pricing and ease of communications. Overall, the offeror was less than fully cooperative and did not demonstrate a commitment to service. The corrective actions taken have not demonstrated the offeror’s effectiveness. Proposed corrective actions lacked sufficient details for the PPET to determine the offeror’s effectiveness in addressing the deficiencies. Therefore, based upon the offeror’s past performance record, it leads the PPET to expect marginal customer satisfaction and less than fully successful performance.
The Primary Contracting Officer/Source Selection Authority subsequently issued a final Business Clearance Memorandum, dated April 7, 2011, and agreed with the Less than Satisfactory past performance rating for Glenn Defense Marine. The Primary Contracting Offieer/Source Selection Authority identified specific past performance issues for Glenn Defense Marine, including: “[m]ul-tiple concerns were expressed by Government officials regarding key personnel’s responsiveness to correspondence; proposed corrective [sic] lack sufficient details to determine their anticipated effectiveness.” Glenn Defense Marine “failed to demonstrate that they met contract competition requirements for non-prieed items over $3,000,” and Glenn Defense Marine “failed to provide supporting documentation to substantiate proposed prices for nonpriced items.” The Primary Contracting Offieer/Source Selection Authority also noted that “[t]here were documented instances where contracting personnel encountered communications difficulties with GDM; proposed corrective [sic] lacked sufficient details to determine their [Glenn Defense Marine’s] anticipated effectiveness.”
The Primary Contracting Offieer/Source Selection Authority continued:
GDM’s final overall past performance rating was considered LESS THAN SATISFACTORY by the PPET. According to the PPET, GDM [sic] past performance on previously awarded contracts did not meet some significant requirements. Although GDM was generally responsive to changes in requirements, provided timely services and had reasonably good control over managing subcontractors, there were several noted deficiencies in their performance when it came to reliability and consistency of its customer service practices, transparency in pricing and ease of communications.
(emphasis in original). The Primary Contracting Offieer/Source Selection Authority concluded that, “[t]he Contracting Officer has reviewed the PPET’s final evaluation report and concurs with the PPET’s final rating of LESS THAN SATISFACTORY [HIGH PERFORMANCE RISK].” (emphasis in original).
*555By contrast, regarding the past performance of MLS in the final evaluation, dated February 23, 2011,20 the Past Performance Evaluation Team’s Summary Report indicated that:
For Region 1, this offeror’s past performance on previously awarded relevant contracts met or exceeded the [sic] most requirements. The offeror was very responsive to customer service issues, provided timely services, flexible when responding to changes in requirements, maintained control over managing subcontractors, was transparent in its pricing processes and was effective in communications. Overall, the offeror was very cooperative and demonstrated a commitment to customer service. There were no substantiated problems or issues documented in this past performance assessment. Therefore, based upon the of-feror’s past performance record, it leads the PPET to expect a strong customer satisfaction and fully successful performance.
In reviewing MLS’ past performance, the Primary Contracting Officer/Source Selection Authority stated that, “MLS had no past performance issues for discussions and their final rating remained unchanged.” The Primary Contracting Offieer/Source Selection Authority highlighted specific past performance instances in which MLS exceeded requirements, including “Consistently provided a high level of customer service as the prime [contractor] as well as through their subcontractors,” “[h]igh level of customer satisfaction,” “[v]ery responsive to customer inquiries and timely with pre-visit cost estimates,” and “[r]esponsive to providing cost effective solutions.” The Primary Contracting Officer/Source Selection Authority also noted that “[performance risk for MLS meeting all contract requirements is considered low.” (emphasis in original). The Primary Contracting Offieer/Source Selection Authority concluded that “[t]he Contracting Officer has reviewed the PPET’s final evaluation report and concurs with the PPET’s final rating of BETTER [LOW PERFORMANCE RISK].” (emphasis in original).
As indicated above, in its revised proposal, MLS’ price of $2,537,414.00 was $989,214.00, or approximately 64% higher than Glenn Defense Marine’s price of $1,548,200.00. The Primary Contracting Officer/Source Selection Authority noted that although the two offer-ors’ technical evaluations were relatively equal, “the fact that MLS’s past performance was significantly higher than GDM’s past performance, supports MLS being rated higher in terms of their ability to successfully meet all the requirements of the solicitation,” thus “[w]hen combining the non-price factors together, MLS is rated higher than GDM.” The Primary Contracting Officer/Source Selection Authority stated that because of the difference in price, a trade-off analysis was required to determine the best value proposal to the Navy. After the analysis, “[t]he Contracting Officer has determined MLS’s proposal to be the ‘best value’ and most advantageous to the Government.” The Primary Contracting Officer/Source Selection Authority emphasized that “GDM had significant deficiencies in meeting both pricing submission requirements as well as responding in a timely manner to facilitate pricing transparency.” Moreover, “GDM’s past performance leads the Contracting Officer to believe the additional contract administration costs would be required if a contract were awarded to GDM rather than MLS.” The Primary Contracting Offieer/Source Selection Authority concluded that “[t]he perceived benefits and substantially lower risk, although not easily quantifiable, are considered to be worth more than the $989,214 price difference. Therefore, the source selection decision is to award the contract for the South Asia region to MLS.” (emphasis in original).
The contract was awarded to MLS on June 24, 2011. Glenn Defense Marine filed a protest at the Government Accountability Office (GAO) on July 5, 2011, which was denied on October 13, 2011. See In re Glenn Defense Marine-Asia PTE, Ltd., B-402687.6, B-402687.7, 2011 WL 6947628 (Comp.Gen. Oct. 13, 2011). The protest before the GAO al*556leged that the Navy should have rated Glenn Defense Marine’s technical proposal superior to MLS, and disagreed with the past performance rating of Better for MLS and Less than Satisfactory for Glenn Defense Marine. See id. at *4, *7-*8. Regarding the technical evaluation, the GAO noted that the evaluation of proposals is within the discretion of the contracting agency, highlighted the major strengths identified in MLS’ proposal, and concluded that, “the agency’s evaluation of the proposals as technically equal was reasonable.” Id. at *6. Regarding the past performance evaluation of Glenn Defense Marine, the GAO noted that although Glenn Defense Marine believed it was entitled to a higher past performance rating, it did not disagree with many of the negative comments about its past performance, only how the negative comments were weighted in its evaluation. Id. at *7. The GAO stated, absent a showing of why the conclusions were unreasonable, the GAO had “no basis” to determine the Navy had evaluated Glenn Defense Marine’s past performance in a way that was inconsistent with the solicitation. Id. The GAO concluded, “[i]n our view, the Navy reasonably concluded that MLS’s past performance offered a clear advantage over the past performance of GDMA, and the Navy reasonably documented its decision to select MLS over GDMA for this reason. The protest is denied.” Id. at *8. After its protest was denied at the GAO, plaintiff filed its bid protest in this court.21 The parties have filed cross-motions for judgment on the administrative record.
DISCUSSION
Standard of Review
The Administrative Dispute Resolution Act of 1996 (ADRA), Pub.L. No. 104-320, §§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(l)-(4) (2006)), amended the Tucker Act, providing the United States Court of Federal Claims with a statutory basis for bid protests. See Impresa Construzioni Geom. Domenico Ga-rufi v. United States, 238 F.3d 1324, 1330-32 (Fed.Cir.2001). The statute provides that protests of agency procurement decisions are to be reviewed under Administrative Procedure Act (APA) standards, making applicable the standards outlined in Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970) and the line of eases following that decision. See, e.g., Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed. Gir.) (citing Scanwell Laboratories, Inc. v. Shaffer for its reasoning that “suits challenging the award process are in the public interest and disappointed bidders are the parties with an incentive to enforce the law.”), reh’g denied (Fed.Cir.2004); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004) (“Under the APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’” (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332)); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2003).
Agency procurement actions should be set aside when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without observ-*557anee of procedure required by law.” 5 U.S.C. § 706(2)(A), (2)(D) (2006);22 see also Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1285-86 (Fed.Cir.2010); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed.Cir.2009); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed.Cir.2009) (noting arbitrary and capricious standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa Construzioni Geom. Domenico Ga-rufi v. United States, 238 F.3d at 1332); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed.Cir.2007) (“[T]he inquiry is whether the [government’s] procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” (quoting 5 U.S.C. § 706(2)(A) (2000))); Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005); Contracting, Consulting, Eng’g LLC v. United States, 104 Fed.Cl. 334, 340 (2012). “In a bid protest case, the agency’s award must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Turner Constr. Co., Inc. v. United States, 645 F.3d 1377, 1383 (Fed.Cir.2011) (quoting PAI Corp. v. United States, 614 F.3d 1347,1351 (Fed.Cir.2010)).
In discussing the appropriate standard of review for bid protest cases, the United States Court of Appeals for the Federal Circuit specifically addressed subsections (2)(A) and (2)(D) of 5 U.S.C. § 706. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332 n. 5; see also NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004) (“Bid protest actions are subject to the standard of review established under section 706 of title 5 of the Administrative Procedure Act (‘APA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).”) (citations omitted); Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1350 (“Among the various APA standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,1057-58 (Fed.Cir.), reh’g denied (Fed.Cir.2000))); Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319 (“Consequently, our inquiry is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”).
The United States Supreme Court has identified sample grounds which can constitute arbitrary or capricious agency action:
The agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, *55843, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see also Alabama Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.Cir.2009); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed.Cir.2002) (“The agency must present a full and reasoned explanation of its decision_The reviewing court is thus enabled to perform a meaningful review .... ”), aff'd on subsequent appeal, 262 Fed.Appx. 275 (Fed.Cir.2008); Textron, Inc. v. United States, 74 Fed.Cl. 277, 285-86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean Technical Servs., Inc., 222 Fed.Appx. 996 (Fed.Cir.2007);
A disappointed bidder has the burden of demonstrating the arbitrary and capricious nature of the agency decision by a preponderance of the evidence. See Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995-96 (Fed.Cir.1996); Contracting, Consulting, Eng’g LLC v. United States, 104 Fed.Cl. at 339-40; Textron, Inc. v. United States, 74 Fed.Cl. at 285; Labat-Anderson Inc. v. United States, 50 Fed.Cl. 99, 106 (2001); Emery Worldwide Airlines, Inc. v. United States, 49 Fed.Cl. 211, 222, aff'd, 264 F.3d 1071 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2001); Dynacs Eng’g Co. v. United States, 48 Fed.Cl. 614, 619 (2001); Ellsworth Assocs., Inc. v. United States, 45 Fed.Cl. 388, 392 (1999), appeal dismissed, 6 Fed.Appx. 867 (Fed.Cir.2001). The Federal Circuit has made clear that “[t]his court will not overturn a contracting officer’s determination unless it is arbitrary, capricious, or otherwise contrary to law. To demonstrate that such a determination is arbitrary or capricious, a protester must identify ‘hard facts;’ a mere inference or suspicion of an actual or apparent conflict is not enough.” PAI Corp. v. United States, 614 F.3d at 1352 (citing John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300 (Fed.Cir.1999); C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed.Cir.1983) and Filtration Dev. Co., LLC v. United States, 60 Fed.Cl. 371, 380 (2004)).
Furthermore, to prevail in a bid protest case, the protester not only must show that the government’s actions were arbitrary, capricious, or otherwise not in accordance with the law, but the protestor also must show that it was prejudiced by the government’s actions. See 5 U.S.C. § 706 (“due account shall be taken of the rule of prejudicial error”). Recognizing the two-step analysis of bid protest cases, the Federal Circuit has stated that:
A bid protest proceeds in two steps. First ... the trial court determines whether the government acted without rational basis or contrary to law when evaluating the bids and awarding the contract. Second ... if the trial court finds that the government’s conduct fails the APA review under 5 U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct.
Bannum, Inc. v. United States, 404 F.3d at 1351. In describing the prejudice requirement, the United States Court of Appeals for the Federal Circuit has held that:
To prevail in a bid protest, a protester must show a significant, prejudicial error in the procurement process. See Statistics Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). “To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have been awarded the contract.” Data General, 78 F.3d at 1562 (citation omitted). Rather, the protester must show “that there was a substantial chance it would have received the contract award but for that error.” Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983) (to establish competitive prejudice, protester must demonstrate that but for the alleged error, “ ‘there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration.’”) (citation omitted).
Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.), reh’g denied (Fed.Cir.1999) (citation omitted in original); see also Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2011); Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1331; Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319; Myers In*559vestigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370 (Fed.Cir.2002); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33; OMV Med., Inc. v. United States, 219 F.3d 1337, 1342 (Fed.Cir.2000); Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057; Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed.Cir.2000).
In Data General Corporation v. Johnson, the United States Court of Appeals for the Federal Circuit wrote:
We think that the appropriate standard is that, to establish prejudice, a protester must show that, had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract_The standard reflects a reasonable balance between the importance of (1) averting unwarranted interruptions of and interferences with the procurement process and (2) ensuring that protesters who have been adversely affected by allegedly significant error in the procurement process have a forum available to vent their grievances. This is a refinement and clarification of the “substantial chance” language of CACI, Inc.-Fed., 719 F.2d at 1574.
Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.), reh’g denied, en banc suggestion declined (Fed.Cir.1996); see also Ban-num, Inc. v. United States, 404 F.3d at 1353, 1358 (“The trial court was required to determine whether these errors in the procurement process significantly prejudiced Ban-num.... To establish ‘significant prejudice’ Bannum must show that there was a ‘substantial chance’ it would have received the contract award but for the [government’s] errors” in the bid process, (quoting Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v. United States, 175 F.3d at 1367; Sta-tistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); and Data Gen. Corp. v. Johnson, 78 F.3d at 1562)); see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1331 (“To establish prejudice, the claimant must show that there was a ‘substantial chance it would have received the contract award but for that error.’ ” (quoting Statistica, Inc. v. Christopher, 102 F.3d at 1582)); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d at 1370 (using the “substantial chance” standard); OMV Med., Inc. v. United States, 219 F.3d at 1342 (invoking a “reasonable likelihood” of being awarded the contract test); Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057 (using a “reasonable likelihood” rule); Stratos Mobile Networks USA, LLC v. United States, 213 F.3d at 1380 (using a “substantial chance” test); Info. Scis. Corp. v. United States, 73 Fed.Cl. 70, 96 (2006) (using a “substantial chance” test), recons, in part, 75 Fed.Cl. 406, 412 (2007) (using a “substantial chance” test); Park Tower Mgmt., Ltd. v. United States, 67 Fed.Cl. 548, 559 (2005) (using a “substantial chance” test).
Under an arbitrary or capricious standard, the reviewing court should not substitute its judgment for that of the agency, but should review the basis for the agency decision to determine if it was legally permissible, reasonable, and supported by the facts. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43, 103 S.Ct. 2856 (“The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency.”); see also R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (Fed.Cir.2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed.Cir.) cert. denied 516 U.S. 916, 116 S.Ct. 304, 133 L.Ed.2d 209 (1995)). “If the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.Cir.1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C.Cir.1971)); see also HP Enter. Servs., LLC v. United States, 104 Fed.Cl. 230, 238-39 (2012); Vanguard Recovery Assistance v. United States, 101 Fed.Cl. 765, 780 (2011); Seaborn Health Care, Inc. v. United States, 55 Fed.Cl. 520, 523 (2003) (quoting Honeywell, Inc. v. United *560States, 870 F.2d at 648 (quoting M. Steinthal & Co. v. Seamans, 455 F.2d at 1301)).
As stated by the United States Supreme Court:
Section 706(2)(A) requires a finding that the actual choice made was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.
Citizens to Preserve Overton Park, Inc. v. Volvo, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted); see also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6-7, 122 S.Ct. 431, 151 L.Ed.2d 328 (2001); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975); Co-Steel Raritan, Inc. v. ITC, 357 F.3d 1294, 1309 (Fed.Cir.2004) (In discussing the “arbitrary, capricious, and abuse of discretion otherwise not in accordance with the law” standard, the Federal Circuit stated that “the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.”); In re Sang Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here is highly deferential. This standard requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285, 95 S.Ct. 438)); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed.Cir.1993); Gulf Group Inc. v. United States, 61 Fed.Cl. 338, 351 (2004) (“Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.”); ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed.Cl. 57, 63 (2001), aff'd, 30 Fed.Appx. 995 (Fed.Cir.2002); Ellsworth Assocs., Inc. v. United States, 45 Fed.Cl. at 392 (“Courts must give great deference to agency procurement decisions and will not lightly overturn them.” (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985))).
A contracting officer has broad decision making discretion in the procurement process. In Garufi, the United States Court of Appeals for the Federal Circuit wrote:
Under the APA standards that are applied in the Scanwell line of cases, a bid award may be set aside if either: (1) [T]he procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure _When a challenge is brought' on the first ground, the courts have recognized that contracting officers are “entitled to exercise discretion upon a broad range of issues confronting them” in the procurement process. Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.1994). Accordingly, the test for reviewing courts is to determine whether “the contracting agency provided a coherent and reasonable explanation of its exercise of discretion,” id., and the “disappointed bidder bears a ‘heavy burden’ of showing that the award decision ‘had no rational basis.’” Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C.Cir.1994). When a challenge is brought on the second ground, the disappointed bidder must show “a clear and prejudicial violation of applicable statutes or regulations.” Kentron [Hawaii, Ltd. v. Warner], 480 F.2d [1166,] 1169 [ (D.C.Cir.1973) ]; Latecoere, 19 F.3d at 1356.
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33 (selected citations omitted); see also Allied Tech. Grp., Inc. v. United States, 649 F.3d at 1326; Centech Group, Inc. v. United States, 554 F.3d 1029, 1037 (Fed.Cir.2009) (reaffirming the analysis of Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Banknote Corp. of Am. v. *561United States, 365 F.3d at 1351; OMV Med., Inc. v. United States, 219 F.3d at 1343.
The United States Court of Appeals for the Federal Circuit also has stated: Effective contracting demands broad discretion. Burroughs Corp. v. United States, 617 F.2d 590, 598 (Ct.Cl.1980); Sperry Flight Sys. Div. v. United States, 548 F.2d 915, 921, 212 Ct.Cl. 329 (1977); see NKF Eng’g, Inc. v. United States, 805 F.2d 372, 377 (Fed.Cir.1986); Tidewater Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct.Cl. 69 (1978); RADVA Corp. v. United States, 17 Cl.Ct. 812, 819 (1989), aff'd, 914 F.2d 271 (Fed.Cir.1990). Accordingly, agencies “are entrusted with a good deal of discretion in determining which bid is the most advantageous to the Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct.Cl. 69....
Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d at 958-59; see also Grumman Data Sys. Corp. v. Dalton, 88 F.3d at 995; Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1046 (Fed.Cir.1994); Cybertech Group, Inc. v. United States, 48 Fed.Cl. 638, 646 (2001) (“The court recognizes that the agency possesses wide discretion in the application of procurement regulations.”); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958; JWK Int’l Corp. v. United States, 49 Fed.Cl. 371, 388 (2001).
Similarly, the Federal Circuit has indicated that:
Contracting officers “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001) (internal quotation marks omitted). Accordingly, procurement decisions are subject to a “highly deferential rational basis review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.Cir.2008) (internal quotation marks omitted). Applying this highly deferential standard, the court must sustain an agency action unless the action does not “evinee[] rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.Cir.2000) (alterations added).
PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United States, 575 F.3d at 1368-69 (“We have stated that procurement decisions ‘invoke[ ] “highly deferential” rational basis review.’ Under that standard, we sustain an agency action ‘evincing rational reasoning and consideration of relevant factors.’”) (quoting CHE Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1058)).
The wide discretion afforded contracting officers extends to a broad range of procurement functions, including the determination of what constitutes an advantage over other proposals. See Compubahn, Inc. v. United States, 33 Fed.Cl. 677, 682-83 (1995) (“[T]his court is in no position to challenge the technical merit of any comments made on the evaluation sheets or decisions made during the several stages of evaluation.”) (footnote omitted); see also Textron, Inc. v. United States, 74 Fed.Cl. at 286 (in which the court considered technical ranking decisions are “ ‘minutiae of the procurement process’ ” not to be second guessed by a court) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed.Cir.1996)). The question is not whether the court would reach the same conclusions as the agency regarding the comparison of proposals, but, rather, whether the conclusions reached by the agency lacked a reasonable basis and, therefore, were arbitrary or capricious, in which ease, courts have a role to review and instruct.
The amount of discretion afforded the contracting officer is greater in some circumstances as compared to others. For example, in a negotiated procurement, contracting officers are generally afforded greater decision making discretion, in comparison to their role in sealed bid procurements. See Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330 (“Because the bid protest at issue here involved a ‘negotiated procurement,’ the protestor’s burden of proving that the award was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law is greater than in other types of bid *562protests”) (citations omitted); see also Hayes Int’l Corp. v. United States, 7 Cl.Ct. 681, 686 (1985) (“It is well-established that contracting officials are accorded broad discretion in conducting a negotiated procure-ment_” (citing Sperry Flight Sys. v. United States, 212 Ct.Cl. 329, 339-40, 548 F.2d 915 (1977))). In Burroughs Corporation v. United States, the court described the broad discretion afforded a contracting officer in a negotiated procurement as follows:
Remarking on the contracting officer’s discretion in negotiation, the court in Sperry Flight Systems Division v. United States, 212 Ct.Cl. 329, 339, 548 F.2d 915, 921 (1977) noted that “the decision to contract — a responsibility that rests with the contracting officer alone — is inherently a judgmental process which cannot accommodate itself to absolutes, at least not without severely impairing the quality of the judgment called for ... ” and that, “effective contracting demands broad discretion.” Because of the breadth of discretion given to the contracting officer in negotiated procurement, the burden of showing this discretion was abused, and that the action was “arbitrary and capricious” is certainly much heavier than it would be in a case of formal advertising.
Burroughs Corp. v. United States, 223 Ct.Cl. 53, 65, 617 F.2d 590, 598 (1980) (citation omitted; omissions in original); see also Am. Tel. and Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed.Cir.2002), reh’g en banc denied (Fed.Cir.), cert. denied, 540 U.S. 937, 124 S.Ct. 56, 157 L.Ed.2d 249 (2003); LaBarge Prods., Inc. v. West, 46 F.3d 1547, 1555 (Fed.Cir.1995); ManTech Telecomms, and Info. Sys. Corp. v. United States, 49 Fed.Cl. at 64.
When the contracting officer’s discretion grows, so does the burden on the protestor. As noted recently in D & S Consultants, Inc. v. United States:
The protestor’s burden becomes more difficult the greater the degree of discretion vested in the contracting officer. Dyn-Corp Int’l v. United States, 76 Fed.Cl. 528, 537 (2007). Negotiated procurements afford the contracting officer a “breadth of discretion;” “best-value” awards afford the contracting officer additional discretion. Id. Therefore, in a negotiated, best-value procurement, the “protestor’s burden is especially heavy.” Id.
D & S Consultants, Inc. v. United States, 101 Fed.Cl. 23, 33 (2011). D & S Consultants identifies another circumstance in which the contracting officer is afforded yet greater discretion. As D & S Consultants explains, procurements in which a best-value determination is made affords the contracting officer broader decision making discretion than a negotiated procurement in which a best-value determination is not at issue. See id.; see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330 (noting that contracting officers have great discretion in negotiated procurements but even greater discretion in best-value determinations than in procurements based on cost alone); PHT Supply Corp. v. United States, 71 Fed.Cl. 1, 11 (2006) (“It is critical to note that ‘a protestor’s burden is particularly great in negotiated procurements because the contracting officer is entrusted with a relatively high degree of discretion, and greater still, where, as here, the procurement is a “best-value” procurement.’”) (citations omitted). “It is well-established that contracting officers have a great deal of discretion in making contract award decisions, particularly when, as here, the contract is to be awarded to the bidder or bidders that will provide the agency with the best value.” Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355 (citing TRW, Inc. v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed.Cir.1996); E.W. Bliss Co. v. United States, 77 F.3d at 449; and Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958-59); see also Am. Tel. and Tel. Co. v. United States, 307 F.3d at 1379; Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958.
In E.W. Bliss Co. v. United States, the United States Court of Appeals for the Federal Circuit offered guidance on the applicable standard of review in negotiated procurements and best value determinations:
Procurement officials have substantial discretion to determine which proposal represents the best value for the government. See Lockheed Missiles & Space Co., Inc. v. *563Bentsen, 4 F.3d 955, 958 (Fed.Cir.1993); cf. Widnall v. BSH, 75 F.3d 1577 (Fed.Cir.1996) (holding that Board of Contract Appeals should defer to agency’s best value decision as long as it is “grounded in reason ... even if the Board itself might have chosen a different bidder”); In re General Offshore Corp., B-251969.5, B- 251969.6, 94-1 Comptroller Gen.’s Procurement Decisions (Federal Publications Inc.) ¶ 248, at 3 (Apr. 8, 1994) (“In a negotiated procurement, any proposal that fails to conform to material terms and conditions of the solicitation should be considered unacceptable and may not form the basis for an award. Where an evaluation is challenged, we will examine the agency’s evaluation to ensure that it was reasonable and consistent with the evaluation criteria and applicable statutes and regulations, since the relative merit of competing proposals is primarily a matter of administrative discretion.”) (citations omitted).
* * *
Bliss’ [other challenges to the procurement] deal with the minutiae of the procurement process in such matters as technical ratings ... which involve discretionary determinations of procurement officials that a court will not second guess. See Lockheed Missiles & 'Space Co., 4 F.3d at 958; Grumman Data Systems Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed.Cir.1994) (“[S]mall errors made by the procuring agency are not sufficient grounds for rejecting an entire procurement.”) _
E.W. Bliss Co. v. United States, 77 F.3d at 449; see also Vanguard Recovery Assistance v. United States, 101 Fed.Cl. at 780; Galen Med. Assocs., Inc. v. United States, 74 Fed.Cl. 377, 383-84 (2006); JWK Int’l Corp. v. United States, 49 Fed.Cl. 371, 388 (2001), aff'd, 279 F.3d 985 (Fed.Cir.), reh’g denied (Fed.Cir.2002).
Plaintiff brings three related counts before this court. In Count I, plaintiff alleges that the Navy did not evaluate Glenn Defense Marine’s past performance in accordance with the solicitation and that it should not have received an overall Less than Satisfactory past performance rating. In Count II, plaintiff alleges that the Navy did not evaluate the intervenor MLS’, past performance in accordance with the solicitation and that its determination that MLS’ past performance was rated Better lacked a rational basis. In Count III, plaintiff alleges that the Navy’s best value determination lacked a rational basis, noting that MLS’ proposed price was 63.8% higher than the price proposed by Glenn Defense Marine. Plaintiff also asserts that the Navy’s determination that MLS’ proposal presented the best value over Glenn Defense Marine was based entirely on the determination that MLS’ past performance rating was superior to Glenn Defense Marine’s past performance rating, and, according to plaintiff, “any best value determination based on the past performance evaluations of GDMA and MLS as they currently stand is arbitrary, capricious, and a violation of procurement laws and regulations.” Plaintiff, therefore, states that “the record shows that the Agency’s past performance evaluations of GDMA and MLS were arbitrary, capricious, an abuse of discretion, and not in accordance with law and that these errors likewise tainted the best value determination that was based on these improper evaluations.”
Plaintiff seeks a permanent injunction to prevent MLS from performing under the contract awarded pursuant to the solicitation. Plaintiff also seeks to enjoin the Navy from authorizing performance until it reevaluates both Glenn Defense Marine’s past performance and MLS’ past performance ratings, as well as the best value determination. Plaintiff argues that, “[b]eeause GDMA will succeed on the merits of this protest and because the other factors weigh heavily in favor of this Court issuing an injunction requiring the Agency to cease performance of the contract awarded to MLS, conduct a re-evaluation of proposals and make a new best value determination, this Court should grant the injunctive relief GDMA seeks and award GDMA its bid preparation and proposal costs.”
Past Performance
Plaintiff asserts that Glenn Defense Marine’s past performance rating of Less than Satisfactory was arbitrary, capricious and lacked a rational basis. Plaintiff alleges that *564the Agency improperly relied “almost entirely on five past performance questionnaires that were completed by individuals familiar with GDMA’s past performance.” According to plaintiff, the Agency failed to explain how plaintiffs past performance warranted a rating of Less than Satisfactory when two of the past performance reviews, which were deemed “highly relevant,” were rated Satisfactory or Better. Furthermore, plaintiff claims that the Agency acted wrongfully when it relied on negative comments within the questionnaires, each of which had assigned an overall rating of Satisfactory or higher. The plaintiff also asserts that because the Navy did not properly evaluate MLS’ past performance, the MLS past performance rating of Better was arbitrary, capricious and lacked a rational basis. Plaintiff argues that the Navy’s determination that the MLS’ subcontractors’ reference questionnaires on past performance were highly relevant “was based solely on the fact that the contracts were performed in South Asia,” and that the Navy “has no rational basis for concluding that these references are of similar scope, magnitude, or complexity to the scope of work of the contract.” By contrast, the defendant argues that the plaintiff has not demonstrated that the Navy’s evaluation of either Glenn Defense Marine or MLS was arbitrary, capricious, or otherwise not in accordance with law. The intervenor agrees with the defendant.
As a Judge of the United States Court of Federal Claims explained, “[i]n the bid protest context, the assignment of a past performance rating is reviewed ‘only to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations, since determining the relative merits of the offerors’ past performance is primarily a matter within the contracting agency’s discretion.’ ” Todd Constr., L.P. v. United States, 88 Fed. Cl. 235, 247 (2009) (quoting Clean Venture, Inc., B-284176, 2000 CPD ¶47, 2000 WL 253581, at *3 (Comp.Gen. Mar. 6, 2000)), aff'd, 656 F.3d 1306 (Fed.Cir.2011); see also Al Andalus Gen. Contracts Co. v. United States, 86 Fed.Cl. 252, 264 (2009) (“It is well-recognized that an agency’s evaluation of past performance is entitled to great deference.”); SP Sys., Inc. v. United States, 86 Fed.Cl. 1, 23 (2009) (“[P]ast performance evaluation ‘will not be disturbed unless it is unreasonable or inconsistent with the terms of the solicitation or applicable statutes or regulations.’ ” (quoting Consolidated Eng’g Servs., Inc. v. United States, 64 Fed.Cl. 617, 637 (2005))). “ ‘When the Court considers a bid protest challenge to a past performance evaluation conducted in the course of a negotiated procurement, “the greatest deference possible is given to the agency.”’” First-Line Transp. Sec., Inc. v. United States, 100 Fed.Cl. 359, 396 (2011) (quoting Univ. Research Co. v. United States, 65 Fed.Cl. 500, 505 (2005) (quoting Gulf Grp. Inc. v. United States, 61 Fed.Cl. 338, 351 (2004))); see also Fort Carson Support Servs. v. United States, 71 Fed.Cl. 571, 598 (2006) (“Evaluation of past performance is ‘within the discretion of the contracting agency and will not be disturbed unless it is unreasonable or inconsistent with the terms of the solicitation or applicable statutes or regulations.’ ”) (quoting Consolidated Eng’g Servs. v. United States, 64 Fed.Cl. at 637); Overstreet Elec. Co., Inc. v. United States, 59 Fed.Cl. 99, 117 (2003) (“And when a procurement involves performance standards ... a court must grant even more deference to the evaluator’s decision.” (citing E.W. Bliss Co. v. United States, 77 F.3d at 449)), appeal dismissed, 89 Fed.Appx. 741 (Fed.Cir.2004) (emphasis in original). Likewise, the Court in Seaborn Health Care, Inc. v. United States, 101 Fed.Cl. 42 (2011), wrote:
A similar deferential standard applies when the Court is reviewing an agency’s assessment of past performance evaluations. Commissioning Solutions Global, LLC v. United States, 97 Fed.Cl. 1, 9 (2011) (“[I]n cases such as this, when a negotiated procurement is involved and at issue is a performance evaluation, the greatest deference possible is given to the agency — what our Court has called a ‘triple whammy of deference.’ ”) (quoting Gulf Grp. Inc. v. United States, 61 Fed.Cl. 338, 351 (2004)); see also Blackwater Lodge & Training Center Inc. v. United States, 86 Fed.Cl. 488, 493 (2009) (“mere disagree*565ment” with past performance evaluations is insufficient to disturb agency’s decision).
Seaborn Health Care, Inc. v. United States, 101 Fed.Cl. at 48. Continuing, the court stated:
In evaluating an offeror’s past performance, FAR 15.305(a)(2) affords agencies considerable discretion in deciding what data is most relevant. PlanetSpace Inc. v. United States, 92 Fed.Cl. 520, 539 (2010). “Thus, when evaluating an offeror’s past performance, the [contracting officer] ‘may give unequal weight,’ or no weight at all, ‘to different contracts when [the contracting officer] views one as more relevant than another.’ ” Line Gov’t Servs., LLC v. United States, 96 Fed.Cl. 672, 718 (2010) (quoting SDS Int’l, Inc. v. United States, 48 Fed.Cl. 759, 769 (2001)).
Seaborn Health Care, Inc. v. United States, 101 Fed.Cl. at 51 (alterations in original); see also Vanguard Recovery Assistance v. United States, 101 Fed.Cl. at 787. In Vanguard Recovery Assistance v. United States, the court noted the ‘“well-recognized’ principle that ‘an agency’s evaluation of past performance is entitled to great deference.’ ” Vanguard Recovery Assistance v. United States, 101 Fed.Cl. at 785 (quoting Al Andalus Gen. Contracts Co. v. United States, 86 Fed.Cl. at 264 (citing Westech Int’l, Inc. v. United States, 79 Fed.Cl. 272, 293 (2007))).
Glenn Defense Marine
Plaintiff argues that “[t]he evaluation of GDMA’s past performance as ‘Less than Satisfactory’ was arbitrary and capricious because it was counter to the information before the Agency — the five references that assessed GDMA’s overall performance as ‘Outstanding,’ ‘Better,’ and ‘Satisfactory.’ ” Stated otherwise, plaintiff argues the “Agency’s evaluation of GDMA’s past performance as ‘Less than Satisfactory’ is also arbitrary, capricious, and an abuse of discretion because the PPET failed to articulate a rational connection between its ‘Less than Satisfactory’ rating and the much higher overall ratings of the five past performance references on which the PPET relied.”
The parties agree that, initially, the Past Performance Evaluation Team assigned Glenn Defense Marine a past performance rating of Satisfactory, and that the past performance questionnaires gave Glenn Defense Marine’s past performance overall ratings of Outstanding, Better, and Satisfactory. Defendant states, “it is undisputed that the members of the PPET initially found GDMA’s past performance to be Satisfactory after reviewing five past performance reference questionnaires,” but argues that the Agency’s revision of plaintiffs past performance evaluation to Less than Satisfactory was based on information before the evaluators and was not “arbitrary, capricious, or unlawful.” Although the Past Performance Evaluation Team changed the plaintiffs initial Past Performance rating from Satisfactory to Less than Satisfactory, plaintiff does not argue that a Past Performance Evaluation Team or an Agency can never change an evaluation. At oral argument, counsel for plaintiff stated: “They could if they had additional information. I want to be clear. I’m not saying they can never change it. They’d have to go get some additional information. Call, flesh it out. Have this be a thoughtful process, a reasoned process.” Glenn Defense Marine also does not allege bad faith on the part of the government, rather, plaintiff only alleges that the government improperly analyzed the information available to the Past Performance Evaluation Team. Although it is not surprising that the plaintiff questioned defendant’s quick revision of Glenn Defense Marine’s overall past performance rating, the court must review the propriety of the re-evaluation by the Past Performance Evaluation Team based on all the information available to the Agency. The ultimate issue is whether the Navy’s award decision was unsupportable or arbitrary and capricious.
Plaintiffs claims raise the issue of whether the Past Performance Evaluation Team was obligated to adopt the overall rating labels on the past performance questionnaires, which gave Glenn Defense Marine overall ratings of Better and Satisfactory for the highly relevant contract, as well as overall ratings of Outstanding and Better for the moderately relevant contracts. Alternatively, was the Past Performance Evaluation Team permitted, as it did, to look beyond the overall past *566performance rating and consider the underlying narrative, comments included in the past performance questionnaires, as well as other information, in order to revise the overall labels and reach a different final overall rating. Although it would have been far preferable for the Agency personnel, including the Past Performance Evaluation Team, to have done a complete analysis initially before submitting its first overall past performance rating for plaintiff in Region 1, the additional comments submitted as part of the responsive questionnaires were relevant sources of information which could provide a more complete perspective of a prospective bidder’s past performance, as was the information provided by the then-current, contracting officer, [deleted].
Most notably, the comments from the then-current, contracting officer, [deleted], for Glenn Defense Marine’s highly relevant contract, demonstrate a disconnect between his overall rating of Satisfactory and the past performance of Glenn Defense Marine. Moreover, [deleted]’s additional comments revealed a great deal of information, not available from an overall rating alone. [Deleted]^ comments state in full:
1-6 of 9 pre-visit estimates for port visits covered by this contract from 27 OCT 09-present were received late. In addition, the contract specialists at FISC Det. Singapore routinely have to request corrections to the PCEs received for port visits (e.g., not all items requested in LOGREQ [logistical requirements] are included in the PCE [pre-visit cost estimates]).
2-A negative past performance letter regarding the USS LASSEN and USS Shiloh port visits to Goa, India was sent to GDMA on 6 July 10. GDMA did not provide force protection barriers as specified by the ships in their ordering LO-GREQs. A complaint from State Department personnel in Goa led to the issuance of this past performance letter.
3-A negative past performance letter regarding performance under this contract was sent to GDMA on 14 JUN 10. GDMA has not provided a proposed pricing plan for insuring that non-priced items are offered at fair and reasonable prices. This pricing plan is a deliverable specified under this contract. Fair and reasonable pricing for non-priced items is an unresolved issue under this contract. The FISC Det. Singapore office has yet to receive competitive price quotations for any non-priced services provided under this contract.
4-Email responses from GDMA representatives to questions from the FISC Det. Singapore contract specialists are routinely delayed. The delayed responses exacerbate the short lead time for arranging port visit services.
For the other highly relevant contract reference, [deleted] of FLC Yokosuka, Site Singapore, in her additional comments stated, in part, “[t]heir prices for the non-contract are rather high and attempt to negotiate the cost seems pointless,” and noted that “[n]o major issues under the purview of this contract except the DAO Representative in India complained about their service during the USS Shiloh and USS Lassen visit to GAO in Apr 10. He complained about GDMA inability to provide pier side force protection services utilizing containers. The pier was not cordoned off appropriately. FISC Det Singapore Contracting Officer issued a negative past performance letter addressing this issue.”23
Moreover, some of the comments offered in the questionnaire submitted to the Past Performance Evaluation Team by [deleted], the Naval Attaché in Kuala Lumpur, for one of Glenn Defense Marine’s moderately relevant contracts, shed light on the weight to be placed on the Captain’s overall rating of Outstanding. Although [deleted]’s overall rating for Glenn Defense Marine’s past performance was Outstanding, and, for each element he rated, he concluded Glenn Defense Marine’s past performance was Outstanding, he *567noted for the element “performance within the negotiated price,” “UNKNOWN — I’m not involved with the price side of the contract,” and for the element “business practices resulted in savings to the Government or lowered overall port visit costs,” he stated “I have no idea, I’m not a FISC or SUPPLY officer, don’t have visibility on the overall cost of port visits.” [DeletedJ’s overall rating, thus, had limited application without considering his internal comments, which were more specific and directed. Similarly, [deleted]’s reference for the moderately relevant contract gave an overall rating of Outstanding, but she noted in her additional comments that a negative past performance letter was issued to Glenn Defense Marine regarding “GMDA Customer Service representative not being responsive to their [the USS Cowpens] request.”
Ultimately, the Past Performance Evaluation Team reviewed and considered the internal comments in the narrative statements in the past performance questionnaires to reach overall Past Performance ratings for Region 1. This is reflected in both the individual Past Performance Evaluation Team members’ assessments and the Past Performance Evaluation Team Summary Report. [Deleted] noted in his assessment, however, “[a]l-though there were several ‘Outstanding (0)’ ratings on the offeror’s past performance (i.e., individual questionnaires), those ratings are not substantiated by specific comments unlike several ‘Less than Satisfactory (LS)’ ratings.” Moreover, the Past Performance Evaluation Team’s Summary Report noted concerns raised by the additional comments and indicated, “when questioned about declining performance issues, this offeror was non-responsive to inquiries at times. Changes to existing terms and conditions were [sic] delayed performance to start in some areas,” and cited “deficiencies in its performance when it came to the reliability and consistency of its customer service practices, transparency in pricing and ease of communications.”
The pre-negotiation Business Clearance Memorandum synthesized the information in the past performance questionnaires and the Summary Reports. The pre-negotiation Business Clearance Memorandum, like the Summary Reports, assigned Glenn Defense Marine’s past performance an overall Satisfactory rating [moderate performance risk], but noted potential major past performance issues, such as “[t]here were multiple complaints about GDM’s customer service representative being less than responsive to Government inquiries,” and Glenn Defense Marine “failed to provide a proposed pricing plan to ensure non-priced items were offered at fair and reasonable prices, although it was a deliverable under the contract N40345-09-D-0003. Although GDM stated they would provide the plan at a later date, a plan was never received.” The above demonstrates the legitimate concerns the Navy had even before reconsideration of plaintiffs initial overall past performance rating.
Moreover, the revised evaluation of Glenn Defense Marine’s past performance rating as Less than Satisfactory by the Past Performance Evaluation Team was not the final determination by the Navy. The Navy provided each responsive offeror a chance to submit revised proposals and the Navy opened discussions with the two remaining proposers. Glenn Defense Marine was asked to respond to a series of questions, including eight questions related to past performance. The Primary Contracting Offieer/Souree Selection Authority noted:
The PPET reviewed GDM’s responses to the 8 past performance issues. Based upon GDM’s responses, the PPET’s overall rating for GDM did not change. The PPET determined that GDM’s response to the past performance issue about subcontractor management satisfactorily resolved the concerns with that past performance issue. GDM’s response to the other 7 issues did not satisfactorily resolve the past performance concerns raised by the PPET.
After discussions and a re-evaluation of the proposals, the Past Performance Evaluation Team’s final evaluation found:
Overall, the offeror was less than fully cooperative and did not demonstrate a commitment to service. The corrective actions taken have not demonstrated the of-*568feror’s effectiveness. Proposed corrective actions lacked sufficient details for the PPET to determine the offeror’s effectiveness in addressing the deficiencies. Therefore, based upon the offeror’s past performance record, it leads the PPET to expect marginal customer satisfaction and less than fully successful performance.
To conclude that it was unreasonable for the Navy to determine that the plaintiffs final past performance overall rating was Less than Satisfactory would suggest that the Navy should ignore concerns about past performance reported on the questionnaires, or other information available, and that Glenn Defense Marine had failed satisfactorily to address seven of the eight past performance concerns identified in the questionnaires and raised during discussions. It was proper for the Navy to consider the entire record of past performance submitted in accordance with the solicitation procedures and requirements, including the additional comments in the past performance questionnaires and the results of the discussions between the Navy and Glenn Defense Marine. The comments demonstrate that an overall past performance rating of Less than Satisfactory for Glenn Defense Marine was a legitimate choice, and was not arbitrary or capricious. The comments reflect past performance more aligned with the Past Performance Evaluation Team adjectives for Less than Satisfactory past performance than Satisfactory past performance. As noted above, Less than Satisfactory indicates a high performance risk and reflects that, “[t]he offeror’s performance of previously awarded relevant contracts did not meet some requirements and provided marginal performance/quality results,” and that “[t]he offeror’s past performance record leads to an expectation of marginal customer satisfaction and less than fully successful performance.” By contrast, Satisfactory past performance indicates a moderate performance risk and reflects that “[t]he offeror’s performance of previously awarded relevant contracts met requirements and provided accepted performance/quality results,” and “[t]he offeror’s past performance record leads to an expectation of acceptable customer satisfaction and successful performance.” A number of the comments indicated marginal customer satisfaction with plaintiffs past performance and less than fully successful performance, which the Navy was entitled to take into account when determining the final overall past performance rating for Glenn Defense Marine for Region 1.
In sum, there is a great deal of discretion afforded to the Agency with regard to evaluations of past performance, and the facts in each case present differently. Such discretion makes quantification for evaluation purposes difficult as many subjective, discretionary opinions are involved from numerous individuals. Overall ratings should be read in the context of the information available, including the internal comments included in the questionnaires to allow greater depth of understanding to the evaluators when making final contractor selections. The government has a responsibility to analyze all timely submitted information received in order to protect the taxpayers before the government expends funds from the Treasury.
In addition, although certainly government officials can and do make mistakes, there is a strong presumption of the regularity accompanying government proceedings, including that the military generally carries out its responsibilities properly, lawfully and in good faith. See Richey v. United States, 322 F.3d 1317, 1326 (Fed.Cir.2003); Porter v. United States, 163 F.3d 1304, 1316 (Fed.Cir.1998), reh’g denied, en banc suggestion declined (Fed.Cir.), cert. denied, 528 U.S. 809, 120 S.Ct. 41, 145 L.Ed.2d 37 (1999). The plaintiff bears the burden of overcoming the “strong, but rebuttable, presumption” that the military discharges its duties “correctly, lawfully, and in good faith.” Bernard v. United States, 59 Fed.Cl. 497, 501 (quoting Hary v. United States, 223 Ct.Cl. 10, 17, 618 F.2d 704, 707 (1980) (citations omitted)), aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004).
The United States Court of Appeals for the Federal Circuit recently reiterated that, “[a]s we stated in Rizzo, ‘ “[t]he presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly *569discharged their official duties.” ’ ” Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed.Cir.2011) (quoting Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed.Cir.2009) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004))). As noted in Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324:
The cases also establish that, in determining whether to require an explanation, the agency decision is entitled to a presumption of regularity. Bowen v. Am. Hosp. Assn., 476 U.S. 610, 626-27,106 S.Ct. 2101, 90 L.Ed.2d 584 (1986); Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 n. 9, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926). Because of that presumption of regularity, the agency should not be required to provide an explanation unless that presumption has been rebutted by record evidence suggesting that the agency decision is arbitrary and capricious. Cf. United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (requiring a defendant asserting a selective prosecution claim to make a threshold showing in order to overcome the presumption of regularity of the agency decision to prosecute before the defendant is entitled to discovery). The litigant challenging that presumption necessarily bears a heavy burden.
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1338 (footnote omitted); see also Terry v. United States, 103 Fed.Cl. 645, 653 (2012); Tippett v. United States, 98 Fed.Cl. 171, 177 (2011); Alabama Aircraft Indus., Inc.-Birmingham v. United States, 82 Fed.Cl. 757, 773 (2008) (“[A]gency decisions, including those of contracting officers, are entitled to a presumption of regularity, ‘unless that presumption has been rebutted by record evidence suggesting that the agency decision is arbitrary and capricious.’ ” (quoting Impresa Construz-ioni Geom. Domenico Garufi v. United States, 238 F.3d at 1338)).
Each past performance analysis and reevaluation if it occurs must rest on the facts presented by the particular ease. In Vanguard Recovery Assistance v. United States, 101 Fed.Cl. 765, the protestor argued that the agency cannot contradict itself in a subsequent evaluation. The court noted, however, that “an agency has the right to change its mind in the course of an evaluation if it has good reason,” id. at 786, and concluded that the Federal Emergency Management Agency had grounds to do so, if the Agency failed to identify an existing weakness in a proposal and went back to reevaluate and reseore a proposal. Id. Government contracts should be awarded for the right reasons, to the offeror who best meets the solicitation requirement as determined by the Agency. Agency evaluators must be allowed the discretion to review their own conclusions if they conclude a mistake has been made, or if further inquiry appears appropriate, provided the re-evaluation conforms with the solicitation, including any modifications to the solicitation and the evaluation process is conducted in a manner fair to all offerors. In the case currently before the court, the Navy had sufficient reason to re-evaluate and revise the overall past performance rating after reviewing the comments in the references, especially after the Primary Contracting Officer/Souree Selection Authority’s suggestion to the Past Performance Evaluation Team to ensure that the correct overall rating was assigned, and after what the Agency deemed unresolved negative information following unsatisfactory discussions with plaintiff.
The decision in Fort Carson Support Services v. United States, 71 Fed.Cl. 571, also is instructive. In Fort Carson, all offerors, including the protestor Fort Carson Support Services, were assigned a low risk rating for the past performance and experience subfactor and for each element of past performance and experience in the Army’s initial evaluation of past performance and experience. See id. at 598. As in the case before this court, the Agency “ ‘re-validate[d] PPE [past performance and experience] information,’” id., and the Army “determined that FCSS [Fort Carson Support Services] should receive only a ‘Moderate’ risk rating for the Managerial and Cost Control elements of PPE, and an overall PPE risk rating of ‘Low/Moderate.’ ” Id. (internal citations omitted). The protestor argued that the *570worsening of its risk rating for past performance and experience was arbitrary and capricious, because the second evaluation was based on the same information as the first evaluation. See id. The Fort Carson court started with the premise that “ ‘[w]hen the Court considers a bid protest challenge to the past performance evaluation conducted in the course of a negotiated procurement, “the greatest deference possible is given to the agency.” ’ ” Id. at 598-99, 600 (quoting Univ. Research Co. v. United States, 65 Fed.Cl. at 505 (quoting Gulf Grp. Inc. v. United States, 61 Fed.Cl. at 351)). The court in Fort Carson indicated that review of past performance was within the Agency’s discretion and “[u]nless such an action was forbidden by law, by the Solicitation, by the FAR, or by the SSP [Source Selection Plan], the Army was free to review proposals as many times as it felt it needed, so long as it treated all offerors fairly and equally.” Id. at 599.
The court in Fort Carson noted that the Chairman of the Source Selection Evaluation Board explained, “ ‘the SSEB [Source Selection Evaluation Board] reconsidered the PPE information in light of the importance of the PPE Subfaetor ... and in light of the fact that the Management Subfactor ratings and proposal risk assessments of the offerors were closer than they had been in the initial evaluation round.’” Id. at 581. The Fort Carson court indicated that, “without elaboration, he [Chairman of the Source Selection Evaluation Board] added that ‘the SSEB found some instances in which it felt that its initial evaluations of PPE had been erroneous and made appropriate adjustments in this round.’ ” Id. at 600. Subsequently, the Source Selection Authority explained that ‘“[Booking beyond the ratings to the substantive information,’” the Source Selection Authority found the awardee to be “well above” Fort Carson Support Services in the past performance and experience subfactor assessment, that Fort Carson Support Services prime contracts were significantly less relevant than the awardee’s contract and that Fort Carson Support Services’ “ratings were considerably more mixed than either of the other two offerors.” Id. Based on the record before it, and given the greatest deference possible that must be afforded to the agency’s judgments in past performance evaluations, the court concluded that the assessment of past performance and experience of Fort Carson Support Services was not arbitrary, and that, “nothing contained in the underlying information and analysis contradicts the SSA’s conclusions concerning PPE.” Id.; see also id. at 601; CRAssociates, Inc. v. United States, 102 Fed.Cl. 698, 715 n. 16 (2011) (noting “‘it is certainly the Army’s prerogative to change its mind — its failure to identify an existing weakness in a proposal does not preclude the Army from considering the weakness later.’ ” (quoting Fort Carson Support Servs, v. United States, 71 Fed.Cl. at 604)), motion for stay pending appeal denied, 103 Fed.Cl. 23 (2012); Tech Sys., Inc. v. United States, 98 Fed.Cl. 228, 248 (2011) (indicating “an agency’s ‘prerogative to change its mind’ ” (quoting Fort Carson Support Servs, v. United States, 71 Fed.Cl. at 604)).
In the above captioned case, applying the same deferential standard, although dealing with a different set of facts, the court cannot conclude that the Navy’s final evaluation of plaintiff was arbitrary, capricious or not in accordance with the law. In the protest now before the court, when discussing the initial evaluation of Satisfactory, the Primary Contracting Officer/Source Selection Authority informed the Board member, [deleted], that “[a]fter discussing this with the PPET Chairman, he agreed it was a borderline decision.” The information included in the questionnaires in the initial Past Performance Evaluation Team’s Summary Report and the draft pre-negotiation Business Clearance Memorandum demonstrated that there existed numerous concerns with respect to Glenn Defense Marine’s past performance in the record leading to a selection decision. For example, included in the Satisfactory rating for the draft prenegotiation Business Clearance Memorandum, were the statements, “[t]here were multiple complaints about the GDM’s customer service representative being less than responsive to Government inquiries,” and “[t]here were many documented instances where GDM submitted pre-visit cost estimates (PCE) late. Aso, many of the PCEs were incom-*571píete when submitted.” The initial Past Performance Evaluation Team report similarly noted that, “multiple delays in responsiveness prevented some ports visited as scheduled,” and that “email responses from the offeror to questions raised by the contracting officer were routinely delayed and caused exacerbating the short lead time for arranging port visit services.” The plaintiff has characterized [deleted]’s conduct, as a member of the Naval Supply System Command Contract Review Board, as an attempt to “insert an unjustified evaluation into the record.” The plaintiff states: “Despite the fact that the CRB [Naval Supply System Command Contract Review Board] did not have before it all of the relevant evidence regarding GDMA’s past performance, the CRB opined that the PPET’s rating of GDMA was too high.” It is the Navy’s response and subsequent re-evaluation that is relevant here. The inquiry from the Board member alerted the Navy to the need to revisit the overall rating and determine if it was correct. The court will not overrule the Navy’s judgment that a more complete evaluation for Glenn Defense Marine’s past performance should attribute a Less than Satisfactory rating to the plaintiff.
Based upon all the ratings and comments in the past performance questionnaires, the analysis and review performed by the Past Performance Evaluation Team and the Primary Contracting Officer/Source Selection Authority, as well as the discussions between Glenn Defense Marine and the Navy, the court cannot conclude the plaintiffs final overall past performance rating of Less than Satisfactoi’y was arbitrary or capricious. For example, the additional comments from the then-current, contracting officer, on Glenn Defense Marine’s highly relevant contract, [deleted], noted that multiple negative past performance letters regarding performance under the highly relevant contract were sent to Glenn Defense Marine, responses from Glenn Defense Marine to “contract specialists are routinely delayed,” and that plaintiff had failed to “provided a proposed pricing plan for insuring that non-prieed items are offered at fair and reasonable prices.” The Past Performance Evaluation Team’s final evaluation noted deficiencies with Glenn Defense Marine’s past performance “when it came to the reliability and consistency of its customer service practices, transparency in pricing and ease of communications,” and noted that, “[o]verall, the offeror was less than fully cooperative and did not demonstrate a commitment to service,” and “[t]he corrective actions taken have not demonstrated the offeror’s effectiveness.” The Primary Contracting Officer/Source Selection Authority also highlighted specific past performance issues with Glenn Defense Marine, such as, “[m]ultiple concerns were expressed by Government officials regarding key personnel’s responsiveness to correspondence,” and “proposed corrective action lacked sufficient details to determine their anticipated effectiveness.”
In order to sustain a protest, a protestor also must demonstrate that it was prejudiced by the conduct and that there was a substantial chance it would have received the contract award, but for that conduct. See Bannum, Inc. v. United States, 404 F.3d at 1351; see also Alfa Laval Separation, Inc. v. United States, 175 F.3d at 1367; Data Gen. Corp. v. Johnson, 78 F.3d at 1562. Even with a Satisfactory rating for past performance, Glenn Defense Marine still would have had an inferior past performance rating as compared to MLS, and still would have had negative past performance comments in the record, which plaintiff did not challenge. As noted by the GAO, “[w]hile GDMA contends that its past performance rating should have been better than the Less than Satisfactory rating it ultimately received, we note that GDMA does not disagree with many of the negative remarks regarding its past performance.” In re Glenn Defense Marine-Asia PTE, Ltd., B- 402687.6, B- 402687.7, 2011 WL 6947628, at *7. The underlying problems identified on the past performance questionnaires and included in the Past Performance Evaluation Team evaluation and in the Primary Contracting Officer/Source Selection Authority’s Business Clearance Memorandum were in the record. Despite the fact that Glenn Defense Marine was given an opportunity to fully address the eight concerns the Navy had identified in the plaintiffs proposal, the plaintiff failed to address *572all the issues to the satisfaction of the Primary Contracting Officer/Source Selection Authority. Moreover, Glenn Defense Marine’s rating of Less than Satisfactory was not the only reason it did not receive the award. As noted above, Glenn Defense Marine’s past performance rating also was downgraded in Regions 2 and 3 to Less than Satisfactory, as in Region 1, but in both instances Glenn Defense Marine was awarded the contract. As discussed below, MLS’ Better past performance rating, as opposed to the Satisfactory rating Glenn Defense Marine is arguing for, played an important role in MLS receiving the award. Even with a Satisfactory past performance rating, it is not at all clear a trade-off analysis would have resulted in plaintiff receiving the contract award.
MLS
In addition to challenging its own past performance evaluation, plaintiff alleges that the Agency’s evaluation of the past performance of the intervenor MLS was arbitrary, capricious, an abuse of discretion, and not in accordance with law. Specifically, plaintiff asserts that “the PPET’s determination that the past performance of MLS’s subcontractors was ‘highly relevant’ and the PPET’s assessment that these references supported an overall rating of ‘Better’ run counter to the facts before the PPET during its evaluation.” For support that a flawed evaluation of MLS’s overall rating resulted in a rating of Better for the intervenor, plaintiff argues that “[t]he sparse supporting comments on MLS’s subcontractors’ past performance questionnaires do not demonstrate a rational connection to the adjectival reference evaluations.” Plaintiff also argues that “[t]he Agency’s evaluation of MLS’s past performance does not acknowledge that MLS’s references provide no meaningful comments to explain or support their overall ratings.” Defendant disagrees.
The court first notes that the plaintiffs position with respect to the evaluation of MLS is almost inverted from its arguments on the alleged flaws of the Past Performance Evaluation Team’s conclusions regarding Glenn Defense Marine’s proposal, which was based on opposition to relying on the additional narrative comments in the past performance questionnaires. Regarding its own evaluation, plaintiff argued the comments should not be allowed to override the overall ratings. With respect to MLS, however, plaintiff argues that the lack of comments on MLS past performance questionnaires should put into question the overall ratings assigned to MLS for past performance. Plaintiff is correct that some of the past performance questionnaires for MLS contained limited additional comments. For example, [deleted] rated [deleted] (one of MLS’ subcontractors) overall performance on a highly relevant contract as Outstanding, and rated each area and every element, save one, as Outstanding ([deleted] rated performance within negotiated prices, an element of conformance to the terms and conditions of the contract, as Better). [Deleted]’s additional comments merely stated: “We have a general agreement to use [deleted] worldwide within very short notices. In most eases we use the service in emergency situations when we cannot rely on charterers agents and when we need a reliable and efficient partner looking after the actual problems with our vessels. Cooperation and ability to help us was always excellent.” [Deleted], an evaluator for one of MLS’ highly relevant subcontractor’s reference, rated [deleted]’s overall performance as Better and assigned two ratings of Outstanding, two ratings of Satisfactory, and the remainder as Better for all of the elements. [Deleted], however, did not include any additional comments. [Deleted] also rated [deleted], and assigned an overall rating of Outstanding as well as Outstanding on every element. [Deleted]’s comments were: “We do not hold a contract with [deleted], our contract is with [deleted]. However, [deleted]has been the [deleted] approved agent since 2000. They have ensured all [deleted] vessel port calls and requested services meet the highest standard of operational/financial performance and ethical standards as required by the [deleted].” The final evaluator for [deleted], [deleted], assigned [deleted]’s overall performance as Better, and assigned a mixture of Outstanding and Better for the elements. His sole additional comment was “[deleted] has proven to be a competent and *573helpful aid in delivering our cruise vessels operations in ports in India.”
Each questionnaire also asked for a brief description of services, the place of performance, the value of the contract for each year, and provided space to evaluate the past performance with a series of objective ratings. In addition to an overall rating, all of the past performance questionnaires reviewed by the Past Performance Evaluation Team requested reviewers to rate each element of the four areas: level of capability, efficiency, and effectiveness; conformance to the terms and conditions of the contract; level of reasonableness and cooperation; and level of commitment to customer service.24 The five ratings identified on the past performance questionnaire were: Outstanding, Better, Satisfactory, Less than Satisfactory, and Neutral, which were the same ratings that the Past Performance Evaluation Team used to rate an offeror’s overall past performance.
The past performance questionnaires for MLS might have been easier for the Agency to evaluate if they had included more pointed comments to better inform the Past Performance Evaluation Team. Given the objective rating system for each element of past performance, however, there was sufficient information to support the evaluation conclusions the Agency reached on MLS’ proposal. Albeit after the fact, in a supplemental report, which is included in the Administrative Record before this court, filed by the Navy at the GAO to defend against Glenn Defense Marine’s GAO protest, the defendant noted, “[w]hile the agency certainly prefers detailed past performance comments because they provide a more complete picture of a contractor’s past performance, detailed comments are not received in every instance.” The Agency also indicated in the report to the GAO that the Past Performance Evaluation Team’s “evaluation of the subcontractor’s past performance considered the whole of the information on the comment forms — the description of the scope of the contractual work that had been performed, the overall rating for the contract’s performance, the ratings for each of the faetors/sub-factors, and any narrative comments.” The Navy supplemental report concluded: “The narrative statements, while helpful, were not the only information on which the past performance rating was based, rather, the whole of the information provided in response to the past performance queries was considered in determining the past performance rating.” Based on the record before the court and the discretion due the Agency, the court cannot find that the Past Performance Evaluation Team was arbitrary or capricious in its evaluation of MLS’ past performance.
Plaintiff also argues that the Navy’s determination concluding that reference contracts for MLS’ subcontractors were highly relevant was flawed. Plaintiff alleges that “[t]he Solicitation stated that the relevance of a past performance reference contract would be determined by whether the referenced contract was similar in scope, magnitude, and complexity to the Region 1 contract.” The solicitation also stated that: “Past Performance is a measure of the degree to which an offeror satisfied its customers in the past by performing its contractual obligations on relevant directly related contracts and subcontracts (or partnerships or joint ventures) that are similar in scope, magnitude, and complexity to that required by the solicitation *574(completed within the past 3 years or currently in progress).” Furthermore, the solicitation stated that, “[i]n the case of an offeror whose past performance is somehow not similar in scope, complexity, or magnitude, or otherwise lacks relevance to some degree then the Government will take this into consideration and evaluate accordingly....” The determination of whether a contract was relevant or not for a past performance evaluation was within the discretion of the Navy. See Line Gov’t Servs., LLC v. United States, 96 Fed.Cl. 672, 718 (2010) (“Thus, when evaluating an offeror’s past performance, the SSA ‘may give unequal weight,’ or no weight at all, ‘to different contracts when the SSA views one as more relevant than another.’ ” (quoting SDS Int'l v. United States, 48 Fed.Cl. 759, 769 (2001))); see also PlanetSpace, Inc. v. United States, 92 Fed.Cl. 520, 539 (“At the outset, it is important to note that what does or does not constitute ‘relevant’ past performance falls within the SSA’s considered discretion.”), subsequent determination, 96 Fed.Cl. 119 (2010); Afghan Am. Army Servs. Comp. v. United States, 90 Fed. Cl. 341, 364 (2009).
MLS’ past performance matrix of contracts it had performed, and the contracts its subcontractors had performed, included 42 husbanding services contracts, and included contracts for its prospective subcontractors, [deleted]. The Navy concluded that the references for MLS’ contracts, in which it was the prime contractor, were only moderately relevant. The Navy determined, however, that four of the references from its subcontractors were on highly relevant contracts. The solicitation expressly discussed the potential role of including subcontractors for the past performance evaluation, requiring that a potential offeror include any contractors it intended to use as a subcontractor for husbanding and submit the same past performance information for each subcontractor that it submitted for itself. The solicitation stated that:
The past performance information requirements for subcontractors are similar to the past performance information requirements for contractors. Information about the contracts and subcontracts that the proposed subcontractor is currently performing or has performed within the last three years that are similar in scope, magnitude and complexity to the tasks the subcontractor will be called upon to perform under the contract.
Plaintiff alleges that the “record in this case offers no explanation as to how the Agency could conclude that MLS’s subcontractors’ past performance was ‘highly relevant’ when the evidence before the Agency was devoid of even the most basic information regarding the scope, complexity, and magnitude of these contracts.” Citing to the defendant’s opening brief, plaintiff also alleges that the determination regarding the four contracts performed by MLS’s subcontractors’ [deleted] and [deleted] as “highly relevant” “was based entirely on their geographic location and not on additional information regarding the magnitude, scope, and complexity.” At oral argument defendant conceded, “[t]he record is weak with respect to the basis for the evaluation of MLS’s contracts as relevant.” In its filings defendant argues, however, that the record demonstrates “the missing information did not detract from the PPET’s ability to understand that the references had knowledge concerning the contractors, the contracts had been performed in South Asia, the contracts concerned providing commercial husbanding services for transiting ships, and the references were well satisfied with the performance they had received.”
Moreover, defendant maintains that the entire basis of the highly relevant decision did not rest solely on geography, as is demonstrated in the record before this court and at the GAO. For example, the overall and internal ratings offered significant, comprehensive information. Defendant also cites to the conclusions of the GAO as a good summary of why the highly relevant rating given to MLS’s contracts was not limited to geography:
We first note that the record shows that the past performance of MLS’s subcontractors were [sic] for husbanding services at many of the same ports as those covered by this contract. In addition, the services performed by the subcontractors *575were for a variety of sizes of vessels that spend the majority of their useful life traveling from port to port rather than remaining berthed at a home location. As here, the subcontractors had to provide services on short notice, and be prepared for frequent ship schedule changes. The subcontractors also had to have flexibility and be able to provide varying services depending on the type of ship that comes into port.
In re Glenn Defense Marine-Asia PTE, Ltd., B- 402687.6, B- 402687.7, 2011 WL 6947628, at *8. The supplemental report filed by the Navy at the GAO to defend against Glenn Defense Marine’s GAO protest, included as part of the Administrative Record before this court, also noted that “[t]he subcontracts that MLS provided for consideration as past performance information are highly relevant to the requirements included in the solicitation because they require services that are similar in scope, magnitude, and complexity.” The Administrative Record reflects the supplemental statements by the Navy that those subcontracts:
require services at many of the same ports as those covered in the contract, they require services on a variety of size vessels (the Navy vessels that can order services under the contract at South Asia ports are also of various sizes) that spend the majority of their useful life, as do Navy ships, traveling from port to port rather than remaining berth at a home location, they require the capacity to provide services on short notice and to be prepared for frequent ship schedule changes, they require flexibility and varying services depending on the type ship that comes into port, they require the ability to manage port visits that tend to attract attention because of the international status of the ship’s owner, and they require coordination with ordering officers and home office contracting organizations located away from India.
Although important, geography was not the only basis on which the Navy determined relevancy of previous contracts for the past performance evaluations.
Plaintiff also argues that none of the highly relevant contracts were for husbanding services to military vessels. The plaintiff, however, does not point to a requirement in the solicitation that required highly relevant contracts to be for servicing on military vessels. Moreover, in addition to the lack of such a requirement, as noted in the pre-negotiation business clearance memorandum, for the highly relevant references, “[tjhese contracts were considered of high relevance since performance was in the countries of India and Sri Lanka — two of the contracts supported military vessels, the other six contract [sic] supported commercial customers.” Also, as noted at the GAO, “the past performance of MLS’s subcontractors were [sic] for husbanding services at many of the same ports as those covered by this contract.” In re Glenn Defense Marine-Asia PTE, Ltd., B- 402687.6, B- 402687.7, 2011 WL 6947628, at *8. The court, therefore, concludes, based on the record, that it was not arbitrary to identify the MLS’ subcontractors’ contracts as highly relevant references. Moreover, deference is due the Agency decision, absent a showing of sufficient, negative information in the record to call the Agency’s determination into question. See Vanguard Recovery Assistance v. United States, 101 Fed.Cl. at 785 (It is a “ Veil-recognized’ principle that ‘an agency’s evaluation of past performance is entitled to great deference.’ ” (quoting Al Andalus Gen. Contracts Co. v. United States, 86 Fed.Cl. at 264)).
Plaintiff further alleges that the Past Performance Evaluation Team “violated a clear Solicitation requirement,” namely Section 8.2.4 of the solicitation. Section 8.2.4 stated:
In the case of an offeror whose past performance is somehow not similar in scope, complexity, or magnitude, or otherwise lacks relevance to some degree then the Government will take this into consideration and evaluate accordingly (for example, a “customer” may give an offeror “outstanding” on its performance on the customer’s contract, but if the contract in question is smaller or otherwise lacks relevance, then the overall rating given by the Government may be adjusted as it is less relevant).
The plaintiff argues that:
Despite this clear instruction [in Section 8.2.4] that only past performance refer-*576enees that were somehow not relevant could be downgraded, here the Agency effectively downgraded GDMA’s past performance references (by ignoring their overall ratings) despite the fact that they were all found either to be “highly relevant” or “moderately relevant.” Under the terms of the Solicitation, the PPET had no authority to ignore the “Satisfactory” and “Better” ratings assessed by the references for the contract deemed “highly relevant” because there were no meaningful differences in the scope, complexity, or magnitude of this contract.
The government, by contrast, argues that, “the Solicitation did not limit the PPET’s authority to overrule the overall ratings of relevant past performance references to circumstances where it found that the reference was not similar in scope, complexity, or magnitude, or otherwise lacked relevance.” The government correctly observes that “[w]hile recognizing the importance of relevance, this section of the Solicitation made no representation that the PPET or the SSA would be bound by the overall ratings provided by a customer or other reference in situations in which contract relevance was not an issue,” or to “limiting the extent to which the Navy can consider the comments included by the references as part of their questionnaires.” The government properly concludes that Section 8.2.4 “simply provided notice that past performance on less relevant contracts, regardless of the rating, would be given less consideration than past performance on more relevant contracts.” The court agrees with the defendant. The Navy was not limited by Section 8.2.4 to overall ratings assigned by the past performance references or limited in reviewing the additional comments. The government has an obligation to review the relevant materials and is not limited by the references’ overall ratings. Moreover, Section 8.2.4 is permissive, it stated that “the overall rating given by the Government may be adjusted as it is less relevant.” (emphasis added). The Past Performance Evaluation Team, and the Navy, had the ability to look beyond the labels and determine which contract references were the most relevant and which comments best explained the past performance of each offeror.
Plaintiff also alleges that:
If the PPET had applied § M.8.2.4 [solicitation Section 8.2.4] equally to both GDMA and MLS, it would have accepted, without downgrading, the overall ratings assigned by both GDMA’s and MLS’s references. By ignoring the ratings provided by GDMA’s references and accepting those provided MLS’s references, the Agency unequally applied § M.8.2.4. The PPET provided no explanation of its unequal application of § M.8.2.4, and nothing in the record indicates it even considered the issue of how this evaluation treatment was reasonable and in accordance with the Solicitation.
(emphasis in original). Defendant argues that the Navy’s past performance evaluation was consistent with Section 8.2.4 of the solicitation and notes that, “[t]he comments from the references on the highly relevant contract were appropriately given more weight than the comments concerning the moderately relevant contracts.” In fact, the Past Performance Evaluation Team appears to have given more weight to the highly relevant reference than the moderately relevant references. For example the revised Past Performance Evaluation Team Summary Report regarding Glenn Defense Marine noted: “Although there were some ‘Outstanding’ ratings provided by offeror’s references on the offeror’s past performance individual area questions), those positive ratings were not necessarily substantiated by convincing arguments unlike several ‘Less than Satisfactory’ ratings. Additionally, some of those Less than Satisfactory ratings were of the highly relevant contract, and the performance risk is significantly high.” The Past Performance Evaluation Team similarly gave more deference to the Outstanding rating of the highly relevant reference for MLS’ past performance. Plaintiff has not demonstrated the Navy violated Section 8.2.4 as alleged.
Given the identified, individual strengths noted regarding MLS’ past performance, and that of its subcontractors, even if the Navy improperly weighted the subcontractor contracts, it is not clear that the overall result *577would have changed or that MLS would not have received a higher overall past performance rating than Glenn Defense Marine. In all of the MLS’ evaluations, only strengths were identified and no past performance problems were documented. For example, in its final evaluation, the Past Performance Evaluation Team noted in its summary notes regarding MLS, in addition to its narrative assessment for each element, that:
For Region 1, this offeror’s past performance on previously awarded relevant contracts met or exceeded the [sic] most requirements. The offeror was very responsive to customer service issues, provided timely services, flexible when responding to changes in requirements, maintained control over managing subcontractors, was transparent in its pricing processes and was effective in communications. Overall, the offeror was very cooperative and demonstrated a commitment to customer service. There were no substantiated problems or issues documented in this past performance assessment. Therefore, based upon the of-feror’s past performance record, it leads the PPET to expect a strong customer satisfaction and fully successful performance.
Despite the above, the final revised evaluation determination for MLS’ past performance was Better, rather than Outstanding, the contracting officer explained the difference as, “[a]fter discussing this with the PPET chairman, although there were no past performance issues for MLS, the references provided feedback that didn’t substantiate the higher OUTSTANDING rating.” The above not only demonstrated the very high level of past performance by MLS, but shows the Past Performance Evaluation Team did not only review and consider negative comments from Glenn Defense Marine’s past performance questionnaires, but also from MLS’ past performance questionnaires. The difference between the two is the negative comments prevented MLS from achieving an Outstanding past performance rating and was left with a still impressive, Better, overall past performance rating; whereas for Glenn Defense Marine, the negative feedback resulted in a lowering of the overall rating from Satisfactory (still below MLS) to a rating of Less than Satisfactory.
Best Value Trade-Off
Plaintiff also argues that “[t]he Agency’s best value determination is arbitrary, capricious, an abuse of discretion, and contrary to law.” Defendant responds that “the Court should not overturn the Navy’s best value trade-off decision awarding the contract to MLS,” arguing, “[t]he record fully supports the best value decision in this ease, which reasonably reflects the Navy’s evaluation of the relative merits of the proposals, consistent with the Solicitation.”
The FAR at 48 C.F.R. § 15.101-1 describes the best value process as:
(a) A tradeoff process is appropriate when it may be in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.
(b) When using a tradeoff process, the following apply:
(1) Ml evaluation factors and significant subfaetors that will affect contract award and their relative importance shall be clearly stated in the solicitation; and
(2) The solicitation shall state whether all evaluation factors other than cost or price, when combined, are significantly more important than, approximately equal to, or significantly less important than cost or price.
(e) This process permits tradeoffs among cost or price and non-cost factors and allows the Government to accept other than the lowest priced proposal. The perceived benefits of the higher priced proposal shall merit the additional cost, and the rationale for tradeoffs must be documented in the file in accordance with 15.406.
48 C.F.R. § 15.101-1. Describing the documentation needed for a best value trade-off analysis, 48 C.F.R. § 15.308 states:
The source selection authority’s (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation. While the SSA may use reports and analyses prepared by others, the source selection *578decision shall represent the SSA’s independent judgment. The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision.
48 C.F.R. § 15.308 (current through May 17, 2012).
The United States Court of Appeals for the Federal Circuit in E.W. Bliss Co. v. United States, noted that:
Procurement officials have substantial discretion to determine which proposal represents the best value for the government. See Lockheed Missiles & Space Co., Inc. v. Bentsen, 4 F.3d 955, 958 (Fed.Cir.1993); cf. Widnall v. B3H, 75 F.3d 1577 (Fed.Cir.1996) (holding that Board of Contract Appeals should defer to agency’s best value decision as long as it is “grounded in reason ... even if the Board itself might have chosen a different bidder”)....
E.W. Bliss Co. v. United States, 77 F.3d at 449 (citations omitted); see also Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355 (citing TRW, Inc. v. Unisys Corp., 98 F.3d at 1327-28) (“It is well-established that contracting officers have a great deal of discretion in making contract award decisions, particularly when, as here, the contract is to be awarded to the bidder or bidders that will provide the agency with the best value.”); Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed.Cl. 488, 514 (2009); Akal Sec., Inc. v. United States, 103 Fed.Cl. 310, 329 (2011) (“The United States Court of Appeals for the Federal Circuit has recognized that ‘[procurement officials have substantial discretion to determine which proposal represents the best value for the government.’ ” (quoting E.W. Bliss Co. v. United States, 77 F.3d at 449)). The Federal Circuit also has indicated that because “the contract was to be awarded based on ‘best value,’ the contracting officer had even greater discretion than if the contract were to have been awarded on the basis of cost alone.” Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330.
It is established that “a plaintiffs burden ‘is elevated where the solicitation contemplates award on a “best value” basis.’ ” Brooks Range Contract Servs., Inc. v. United States, 101 Fed.Cl. 699, 707 (2011) (quoting Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed.Cl. at 503); see also Matt Martin Real Estate Mgmt. LLC v. United States, 96 Fed.Cl. 106, 113 (2010); Serco v. United States, 81 Fed.Cl. 463, 496 (2008) (“To be sure, as noted at the outset, plaintiffs have a significant burden of showing error in that regard because a court must accord considerable deference to an agency’s best-value decision in trading off price with other factors.”). Summarizing the challenge a protester faces in contesting a best value determination, a Judge of the Court of the Federal Claims stated:
The plaintiff in a bid protest thus “bears a heavy burden.” Impresa, 238 F.3d at 1333. That burden lies heavier still when the plaintiff challenges a contract award made subsequent to negotiated procurement, where the procurement official is entrusted with “especially great discretion, extending even to his application of procurement regulations.” Am. Tel. & Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed.Cir.2002). Greater yet is the procurement official’s discretion when selecting a contract-awardee on the basis of a best value determination rather than price alone. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed.Cir.2004). Of course, as courts have repeatedly observed, the greater the procurement official’s vested discretion, the higher the threshold for finding the official’s decision irrational or otherwise unlawful. See, e.g., id.; Burroughs Corp. v. United States, 617 F.2d 590, 597 (Ct.Cl.1980); Cygnus Corp., Inc. v. United States, 72 Fed.Cl. 380, 384-85 (2006) [aff'd, 227 Fed.Appx. 909 (Fed.Cir.2007) ]. An agency’s contract award is thus least vulnerable to challenge when based upon a best value determination. See Galen Med. Assocs., 369 F.3d at 1330.
PlanetSpace Inc. v. United States, 96 Fed.Cl. 119, 125 (2010).
*579Generally speaking, the United States Court of Federal Claims “will not disturb an agency’s best value decision merely because a disappointed bidder disagrees with the agency’s analysis,” Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed.Cl. at 515, but if “ratings that provided the basis for the Agency’s tradeoff analysis and best value award were fundamentally flawed and arbitrary, the best value award itself was arbitrary and capricious.” Bay-First Solutions, LLC v. United States, 102 Fed.Cl. 677, 695 (2012) (citing Huntsville Times Co. ¶. United States, 98 Fed.Cl. 100, 119 (2011)); Serco Inc. v. United States, 81 Fed.Cl. at 497 (“Conclusory statements, devoid of any substantive content, have been held to fall short of this requirement, threatening to turn the tradeoff process into an empty exercise.”) (footnote omitted); see also FirstLine Transp. Sec., Inc. v. United States, 100 Fed.Cl. at 381 (“when selecting a low-price technically inferior proposal in a best-value procurement where non-price factors are more important than price, it is not sufficient for the government to simply state that a proposal’s technical superiority is not worth the payment of a price premium. Instead, the government must explain specifically why it does not warrant a premium.”) (emphasis in original). The FAR at 48 C.F.R. § 15.308, however, does require the government to document the reasons for selecting the higher priced offeror. See 48 C.F.R. § 15.308 (“the documentation need not quantify the tradeoffs that led to the decision.”). In Akal Security, Inc. v. United States, 103 Fed.Cl. 310, the court noted, however, that, “Understandably, the United States Court of Federal Claims has declined to venture too far into the weeds of most bid protests that are factually driven.” Id. at 332. “In performing the tradeoff analysis, the agency need neither assign an exact dollar value to the worth associated with the technical benefits of a contract nor otherwise quantify the non-cost factors.” Serco Inc. v. United States, 81 Fed.Cl. at 497 (citing 48 C.F.R. § 15.308).25
Plaintiffs main argument that the Agency’s best value determination was arbitrary, capricious, an abuse of discretion, and contrary to law, seems to stem from its belief that the past performance evaluations of Glenn Defense Marine and MLS were flawed. Yet the court already has determined that the past performance evaluations of Glenn Defense Marine and MLS were not arbitrary, capricious, an abuse of discretion, or contrary to law. As to whether the Navy sufficiently documented its decision to accept the higher price, the Primary Contracting Officer/Source Selection Authority first noted that only Glenn Defense Marine and MLS had submitted proposals in the competitive range, had submitted acceptable security plans, “did not receive any unacceptable ratings for non-price factors, submitted complete proposals, and did not take any exceptions to the terms and conditions contained within the solicitation.” Therefore, the Agency concluded that the trade-off analysis would be limited to those two offerors. The Primary Contracting Officer/Source Selection Authority noted that: “The trade-off process outlined below is in accordance with FAR 15.101-1, the solicitation, and SSP [Source Selection Plan]. The evaluation assesses each offerors technical approach and past performance as a means of evaluating the offerors ability to successfully meet the requirements of the solicitation. The analysis compares offerors’ non-price factors (i.e., technical approach and past performance and price).”26 The Primary Contracting Offi*580cer/Source Selection Authority continued, “[t]he following factors, in order of importance, were used to evaluate the acceptable offers: technical approach; past performance; and price. The non-price factors, when combined, are significantly more important than price.”
The Primary Contracting Offieer/Source Selection Authority’s analysis revealed that both offerors received a Better rating for technical approach, noted many of the strengths were the same for both offerors and identified an individual technical strength for each offeror, before concluding that the offerors were equal in their Technical Approach. The Primary Contracting Officer/Source Selection Authority also indicated a “significant difference” between the past performance of MLS, which was rated as Better and which had no performance concerns and Glenn Defense Marine, which was rated as Less than Satisfactory, and had “past performance issues regarding responsiveness to Government inquiries, late and/or incomplete pre-port visit cost estimates, lack of transparency into prices that were not pre-priced in the contract and communications difficulties.” MLS also was identified as “responsive with solutions and providing a very high level of customer service.” The Primary Contracting Officer/Source Selection Authority, therefore, decided the contract should be awarded to MLS, despite MLS’s price coming in 63.8% higher than that of Glenn Defense Marine. A table of the final evaluations indicates:
Offeror Evaluated Price Technical Past Performance Security Plan
Glenn Defense $1,548,200.00 Better Less than Acceptable Marine_Satisfactory_
MLS $2,537,414.00 Better Better Acceptable
Independent Govern- $[deleted] ment Estimate
MLS’ price of $2,537,414.00 in its revised proposal was $989,214.00 higher or approximately 64% higher than Glenn Defense Marine’s price of $1,548,200.00 in its revised proposal. The Primary Contracting Officer/Source Selection Authority stated that since Glenn Defense Marine’s total evaluated price is $989,214.00 lower than MLS’ total evaluated price, “a trade-off analysis is required to determine the ‘best value’ proposal that will be the most advantageous to the Government.”
The Primary Contracting Offieer/Source Selection Authority concluded, “[t]he Contracting Officer has determined MLS’s proposal to be the ‘best value’ and most advantageous to the Government,” and identified three specific perceived benefits which warranted the higher cost of MLS’ proposal: performance risk, pricing transparency, and contract administration. Regarding performance risk, the Primary Contracting Officer/Source Selection Authority stated that Glenn Defense Marine had fallen short of meeting contract requirements related to contract administration for “timely and accurate pre-port visit estimates, transparency in pricing matters, and communications,” all of which the Primary Contracting Officer/Source Selection Authority indicated were “very important for the successful delivery of husbanding services.”
The Primary Contracting Officer/Source Selection Authority also indicated that as it related to past performance, Glenn Defense Marine had “significant deficiencies in meeting both pricing submission requirements as well as responding in a timely manner to facilitate pricing transparency.” This was of particular concern to the Primary Contracting Officer/Source Selection Authority because of the high number of requirements which were not pre-priced in the contract. According to the Primary Contracting Officer/Source Selection Authority, up to $7,000,000.00 out of the estimated $10,000,000.00 total contract value potentially could be non-pre-prieed items, such as port tariffs, fuel, provisions and incidentals. Although conceding that Glenn Defense Marine had an adequate system and process to ob*581tain fair and reasonable prices for non-priced items, the Primary Contracting Officer/Source Selection Authority concluded that Glenn Defense Marine’s past performance “indicates that attempts by the Government to obtain pricing information from GDM for items not pre-priced in previous relevant contracts were never adequately addressed to the Government’s satisfaction,” even after discussions between the Navy and Glenn Defense Marine.
By contrast, the Primary Contracting Officer/Source Selection Authority determined that “pricing transparency has been an area where MLS has clearly excelled,” noting them “long and established past performance history of going above and beyond the minimum contract requirements to substantiate non-priced items through a very robust information system developed specifically for this purpose.” The Primary Contracting Offi-eer/Souree Selection Authority concluded that there was a “very high degree of confidence” that MLS would not only exceed the pricing transparency requirements, but through the specifically designed online pricing application, provide additional benefits to the Navy related to invoicing, data mining and other analytic tools.
Finally, the Primary Contracting Offi-eer/Source Selection Authority analyzed contract administration and indicated that additional contract administration costs would likely be required if a contract were awarded to Glenn Defense Marine, stating that “a conservative estimate of enhanced contract oversight and management that would be required by Government to mitigate the risks would be hundreds of thousands of dollars over a five-year period.” The Primary Contracting Offieer/Source Selection Authority specifically noted Glenn Defense Marine’s “late pre-port cost estimates, lack of a response to correspondence, and pricing issues.” As applied to the contract to be awarded, the Primary Contracting Offi-eer/Source Selection Authority concluded that Glenn Defense Marine’s potential lack of responsiveness “not only increases the contract administration costs to the Government, but also could jeopardize the mission of the U.S. Navy since much of this correspondence was in relation to an upcoming ship visit where timely communication is critical to Government decision makers.”
Plaintiff cites to FirstLine Transportation Security v. United States, 100 Fed.Cl. 359 to support its argument that the best value trade-off analysis was arbitrary and capricious. In FirstLine, the court determined that the Source Selection Evaluation Board best value analysis, not only was insufficiently documented, but was irrational and contrary to the request for proposals because “the SSEB [Source Selection Evaluation Board] minimized the substantial differences between the proposals, which had the effect of elevating the relative importance of price in its best-value tradeoff analysis,” and which “had the effect of converting the best-value procurement contemplated under the RFP into one based on low price and mere technical acceptability.” Id. at 376. Therefore, the FirstLine court concluded, “[b]ecause the SSEB’s best-value analysis was inconsistent with the RFP, it was irrational and contrary to law.” Id. In FirstLine, the court determined that by “minimizing the importance of the non-price factors, and thus elevating the relative importance of price, the SSEB deviated from the requirements of the RFP, which required a best-value procurement,” and that “the government has essentially conducted this procurement on a lowest-price technically acceptable basis.” The FirstLine court further noted “it is clear that the SSEB failed to account for the significant differences between the competing proposals with respect to technical quality,” to which the court could not “fathom how the SSEB could have reached the conclusion that the First-Line proposal was only ‘moderately better’ than the [winning bidder’s] proposal.” Id. at 377.
Although the plaintiff tries to draw a parallel between FirstLine and the above captioned protest, arguing “[t]he flaws in the SSEB’s best-value tradeoff analysis in First-Line are present in this case,” the two eases are not alike. In the above captioned case, the solicitation specifically stated, “[t]he following factors, in order of importance, shall be used to evaluate acceptable offers: Technical Approach, Past Performance, and Price. *582The non-price factors, when combined, are significantly more important than price.” In the protest before the court, the solicitation instructed the Navy to “compare offerors’ non-price factors (i.e., Technical Approach and Past Performance) and Price,” and stated that “[Consistent with the trade-off process, the Government will consider award to other than the lowest priced offeror or other than the highest rated non-price factors of-feror. The Government may accept other than the lowest priced proposal.” The Navy followed these directives and concluded that MLS had superior past performance, for the specific reasons identified by the Past Performance Evaluation Team in the Business Clearance Memorandum, and applied the defects it identified for plaintiff in the trade-off analysis. The Past Performance Evaluation Team and the Business Clearance Memorandum, in particular, identified specific reasons for Glenn Defense Marine’s Less than Satisfactory past performance rating, which justified the Agency decision. The Navy adequately documented the trade-off analysis and reasons for its conclusion that MLS provided the Navy with the best value, despite its higher price. The Navy followed the requirements of the solicitation when conducting the best value trade-off analysis and when awarding the contract to MLS.
The plaintiff also argues that the Primary Contracting Officer/Souree Selection Authority’s statement that Glenn Defense Marine’s past performance indicated that its performance of the contract would impose costs of “‘hundreds of thousands of dollars over a five-year period’ also was arbitrary, capricious, and an abuse of discretion.” Plaintiff states, “[i]n the absence of any explanation showing how GDMA’s past performance would likely result in hundreds of thousands of dollars in increased costs (effectively decreasing the evaluated price difference between GDMA and MLS), the PCO/SSA’s [Primary Contracting Offieer/Source Selection Authority’s] determination lacks a reasonable basis.” Defendant, however, correctly notes that the language quoted by plaintiff, that Glenn Defense Marine’s past performance would cost “hundreds of thousands of dollars over a five-year period,” “is misleading because it is incomplete.” Although addressed above, in the documentation of the potential benefit of MLS’ contract administration, the entire paragraph of the trade-off analysis regarding contract administration states:
Contract Administration — GDM’s past performance leads the Contracting Officer to believe that additional contract administration costs would be required if a contract were awarded to GDM rather than MLS. Although the additional administrative costs are not easily quantifiable, a conservative estimate of enhanced contract oversight and management that would be required by Government to mitigate the risks would be hundreds of thousands of dollars over a five-year period. There were noted instances where contracting personnel were required to follow-up with GDM on important matters, such as inquiring about late pre-port cost estimates, lack of a response to correspondence, and pricing issues. GDM’s lack of responsiveness not only increases the contract administration costs to the Government, but also could jeopardize the mission of the U.S. Navy since much of this correspondence was in relation to an upcoming ship visit where timely communication is critical to Government decision makers.
(emphasis in original).
The Primary Contracting Officer/Source Selection Authority was not required to assign an exact amount to quantify the impact of plaintiffs past performance on future contract performance. See Serco Inc. v. United States, 81 Fed.Cl. at 497 (citing 48 C.F.R. § 15.308) (“in performing the tradeoff analysis, the agency need neither assign an exact dollar' value to the worth associated with the technical benefits of a contract nor otherwise quantify the non-cost factors.”); see also Fort Carson Support Servs. v. United States, 71 Fed.Cl. at 598. The Primary Contracting Officer/Source Selection Authority also gave specific examples as to why Glenn Defense Marine’s past performance could impact the cost to the Navy if the contract under consideration was awarded to plaintiff. Moreover, in a bid protest review, addressing a past performance evaluation and a best value trade-off analysis, this court must accord *583considerable deference to the Agency. The plaintiff has not met its substantial burden of proof and cannot prevail. Based on the foregoing, this court concludes that the Navy’s best value determination in selecting MLS for contract award over Glenn Defense Marine was reasonable, in compliance with the solicitation’s evaluation criteria and applicable law, not arbitrary or capricious and in accordance with law. Because the court also has determined that the past performance evaluations of Glenn Defense Marine and MLS had a rational basis, the court does not reach the issue of injunctive relief.
CONCLUSION
For the reasons discussed above, the Navy’s past performance evaluations for Glenn Defense Marine and MLS were not arbitrary, capricious or not otherwise in accordance with law. Moreover, the best value trade-off analysis had a rational basis, resulting in an award of the contract to MLS. Therefore, plaintiffs motion for judgment on the administrative record is DENIED and defendant’s cross-motion for judgment on the administrative record is GRANTED. Plaintiffs complaint is DISMISSED. The Clerk’s Office shall enter JUDGMENT consistent with this opinion
IT IS SO ORDERED.
. The solicitation defined maritime husbanding support as: "Providing supplies and services as defined in the Performance Work Statement of the contract in support of Naval forces within a port area.”
. The four regions were South Asia (Region 1) (including, among other countries, Bangladesh, Burma, India, and Sri Lanka); South East Asia (Region 2) (including, among other countries, Cambodia, China, the Philippines, Taiwan, Thailand and Vietnam); Australia, and the Pacific Islands (Region 3) (including, among other countries, Australia, New Zealand, Papua New Guinea, Fiji, French Polynesia, and Western Samoa); and East Asia (Region 4) (including countries Japan, South Korea, Mongolia, and Russia). Only Region 1 is at issue in this protest.
. The solicitation noted that "[t]he contract also includes the clause entitled FAR 52.217-9 Option to extend the Term of the Contract. If all options are exercised under FAR 52.217-9, the duration of this contract is 66 months.”
. According to the plaintiff, Glenn Defense Marine was awarded contracts for Regions 2 and 3 pursuant to the solicitation at issue.
. 48 C.F.R. § 15.101-1 states:
(a) A tradeoff process is appropriate when it may be in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.
(b) When using a tradeoff process, the following apply:
*546(1) All evaluation factors and significant sub-factors that will affect contract award and their relative importance shall be clearly stated in the solicitation; and
(2) The solicitation shall state whether all evaluation factors other than cost or price, when combined, are significantly more important than, approximately equal to, or significantly less important than cost or price.
(c) This process permits tradeoffs among cost or price and non-cost factors and allows the Government to accept other than the lowest priced proposal. The perceived benefits of the higher priced proposal shall merit the additional cost, and the rationale for tradeoffs must be documented in the file in accordance with 15.406.
48 C.F.R. § 15.101-1 (current as of May 17, 2012).
. In addition, all offerors were required to submit a security plan and address the protection of ship schedule information, security screening of contractors and subcontractor employees, and how contractor and subcontractor personnel would be recognizable to ship personnel. The security plan requirement is not at issue in this bid protest.
. There were minor stylistic differences between the wording of the past performance questionnaires and the wording of the elements as described in the solicitation.
. Glenn Defense Marine was initially given a Satisfactory past performance rating by the Past Performance Evaluation Team. As indicated by the Past Performance Evaluation Team's initial Summary Report, "PPET [Past Performance Evaluation Team] rated the majority of the assessment areas as being satisfactory. This meant that the offeror’s past performance record led to an expectation of acceptable customer satisfaction and successful performance. Based on the above, the PPET rated this offeror's overall rating as being 'Satisfactory.' " As discussed more fully below, the Past Performance Evaluation Team subsequently lowered Glenn Defense Marine’s past performance rating to Less than Satisfactory in a revised Summary Report.
. The moderately relevant references were for Contract No. N68047-06-D-0003 (husbanding services in Singapore), Contract No. N68047-04-D-0001 (husbanding services in Brunei, Indonesia, Malaysia, and East Timor), and Contract No. N40345-06-D-0001 (husbanding services in Thailand).
. As noted in the joint stipulation of facts, "[u]pon receiving the responses, the PPET [Past Performance Evaluation Team] realized that one of the two responses on [deleted] contracts concerned a contract that had been performed prior to three years before the Solicitation closing date and the information provided was not further considered.”
. Plaintiff states that, "[n]either evaluator relied on information other than the five reference questionnaires,” however, the joint stipulation of facts and the record state that [deleted] relied on "questionnaire references, CPARS [Contractor Performance Assessment Reporting System] and other government sources," and that [deleted] also relied on the past performance questionnaires.
.As noted in the joint stipulation of facts, "[t]he Navy’s internal procedures required review of this procurement by a contract review board ('CRB') at both local and NAVSUP [U.S. Naval Supply Systems Command] levels.”
. The record and the filings by the parties use both "GDM" and "GMDA" as an acronym for Glenn Defense Marine.
. The “below guidance” referred to the earlier correspondence between [deleted] and the Past *552Performance Evaluation Team Chairman, described above.
. At oral argument, plaintiff indicated that the Navy reevaluated Glenn Defense Marine’s past performance rating downward in three of the four regions, Regions 1, 2, and 3. There is no information in the record regarding Region 4. Plaintiff also noted that Glenn Defense Marine, nonetheless, was awarded the contracts for Regions 2 and 3 with a Less than Satisfactory past performance rating.
. The Primary Contracting Officer/Source Selection Authority also sent price related and technical questions to Glenn Defense Marine and to MLS. The Primary Contracting Officer/Source Selection Authority did not send MLS any past performance questions. MLS also timely responded to the discussion questions.
. As noted above, Glenn Defense Marine was initially given a Satisfactory past performance rating by the Past Performance Evaluation Team, but the Past Performance Evaluation Team subsequently lowered Glenn Defense Marine’s past performance rating to Less than Satisfactory in its revised Summary Report.
. The Past Performance Evaluation Team final Summary Report for Glenn Defense Marine is dated February 23, 2011, but was not concurred with by the two team members until February 24, 2011.
. As with Glenn Defense Marine, the Past Performance Evaluation Team final Summary Report for MLS is dated February 23, 2011, but was not concurred with by two team members until February 24, 2011.
. Although the GAO decision notes that "[t]he protester has attacked virtually every aspect of the technical and past performance evaluations,” In re Glenn Defense Marine-Asia PTE, Ltd., 2011 WL 6947628, at *3, in the case before this court, Glenn Defense Marine is only challenging the past performance evaluation in its bid protest. Prior to filing the above captioned case, however, plaintiff filed an earlier, pre-award bid protest related to the same solicitation as is at issue in the above captioned case, also in the United States Court of Federal Claims, which was subsequently denied. See Glenn Defense Marine (Asia) PTE, Ltd. v. United States, 97 Fed.Cl. 568, appeal dismissed, 459 Fed.Appx. 906 (Fed.Cir.2011). In the pre-award bid protest, a Judge of the Court of Federal Claims determined that the price evaluation methodology in the solicitation challenged by Glenn Defense Marine was not arbitraiy or capricious or not in accordance with law. See id. at 571. Although Glenn Defense Marine initially filed an appeal to the United States Court of Appeals for the Federal Circuit, plaintiff subsequently filed a notice of withdrawal and the appeal was dismissed. See Glenn Defense Marine (Asia) PTE Ltd. v. United States, 459 Fed.Appx. 906 (Fed.Cir.2011).
. The full language of 5 U.S.C. § 706 of the Administrative Procedures Act provides:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
5 U.S.C. § 706.
. [Deleted] also stated, "GDMA has the capability to provide services in remote locations such as Port Blair,” and “[t]hey are very professional and their staffs are very knowledgeable and experience [sic].” These comments likely informed her decision to assign Glenn Defense Marine an overall rating of Better, despite the other concerns she identified above regarding price and the inability to provide pier side service, resulting in a negative past performance letter.
. As noted above, the following elements were associated with each area:
1. Level of capability, efficiency, and effectiveness; conformance to the terms and conditions of the contract:
a. Reliability and consistency of the company's key personnel
b. Capability to manage subcontractors
c. Capability of managing and controlling the contract
2. Conformance to the terms and conditions of the contract:
a.Performance within negotiated prices
b.Timeliness in providing goods or services in accordance with the contract schedule
3. Level of reasonableness and cooperation area:
a. Responsiveness to changes in requirements
b. Ease of communication
c. Timely response in dealing with problems and ability to find cost effective solutions
4. Level of commitment to customer service: a. Evidence of business practices resulting in savings to the Government or to lower overall port visit costs
. The facts in Serco are an example of the extent to which it can be a heavy burden for a plaintiff to overturn an Agency’s trade-off analysis. The Serco court overturned the trade-off analysis, but only after the court noted that the Agency was willing to pay a premium of as much as $3.6 million for a technical ranking advantage of a mere one-tenth of a point, and the Source Selection Authority failed to explain if the difference in technical scores resulted in a real technical superiority, failed to perform any cost/benefit comparisons, and failed to explain why, as required by the solicitation, the supposed added value of the more expensive proposal was worth the extra cost. See Serco v. United States, 81 Fed.Cl. at 498.
. The solicitation stated that "[t]he Government will use the trade-off process described in FAR 15.101 -1," and that ”[t]he evaluation will assess the offeror’s Technical Approach and Past Performance. This assessment will be used as a means of evaluating the offeror’s ability to successfully meet the requirements of the solicitation.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218284/ | *585
OPINION AND ORDER
1
GEORGE W. MILLER, Judge.
Petitioners, Gus Deribeaux and Kimberly Burshiem, on behalf of their daughter, Madison Deribeaux, seek review of Special Master Lord’s December 9, 2011 decision denying compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34, established by the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660,100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-l to -34) (“Vaccine Act”). Petitioners filed for compensation on March 11, 2005, alleging that Madison was injured by the diphtheria, tetanus, and acellular pertussis (“DTaP”) vaccine she received on March 29, 2002. Special Master Millman first heard petitioners’ ease and granted entitlement to compensation. After new evidence emerged during the damages phase, the case was transferred to Special Master Lord, who held an additional hearing and subsequently denied relief on the ground that respondent, the Secretary of Health and Human Services, proved by a preponderance of the evidence that a factor unrelated to the vaccine, namely Madison’s genetic mutation, caused her injury.
Petitioners timely filed a motion for review under § 300aa-12(e) of the Vaccine Act, claiming that Special Master Lord’s decision was arbitrary, capricious, not in accordance with law, and an abuse of discretion. See Mot. for Review (docket entry 115, Jan. 9, 2012). Petitioners assert that the special master’s decision should be set aside and a new decision should be entered in petitioners’ favor or, in the alternative, that the Court should remand the case back to the special master for further consideration. Id. at 2.
I. Background2
A. Madison’s Medical History
Madison Deribeaux was born on August 19, 2001. Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., No. 05-306V, 2011 WL 6935504, at *3 (Fed.Cl. Dec. 9, 2011) (special master decision). On March 28, 2002, she received the DTaP vaccine along with other typical childhood vaccines. Id. The next day, she was taken to the emergency room having suffered a prolonged seizure. Id. No fever was observed upon her arrival at the hospital. Id. She continued to seize, and her temperature was later recorded as 103.6 degrees Fahrenheit. Id.
Madison was at the hospital for several days during which she suffered no additional seizures and her electroencephalogram (“EEG”) and computerized tomography (“CT”) tests were reported normal. Id. Additionally, an April 4, 2002 magnetic resonance imaging (“MRI”) of Madison’s brain was reported normal. Id. After this initial visit to the hospital, Madison experienced seizures throughout the year that were often, though not always, accompanied by a fever. Id. at *3-5. On April 16, 2002, an immunologist observed the temporal association between Madison’s seizures and her vaccinations. Id. at *4. Through April 18, 2002, Madison’s MRI and EEG test results were reported as normal. Id. A January 2003 EEG was also reported as normal. Id. at * 5.
In April 2003, Madison was admitted to the hospital with “recurrent convulsive episodes.” Id. Her discharge note stated that Madison had a seizure disorder that began two days after the DTaP vaccination, “with subsequent admission and treatment for atypical Kawasaki disease.”3 Id. An April 30, 2003 MRI “reported white matter abnormalities possibly related to hypomyeliniza*586tion, or ‘a metabolic disease such as lysoso-mol or mitochondrial disease as well [as] metachromatic leukodystrophy.”’4 Id. (alteration in original) (quoting Pet’rs’ Ex. 6, at 8; Pet’rs’ Ex. 4, at 397). Madison’s seizures and related treatment persisted through July 2003. Id. In August 2003, a test for enterovi-rus 5 was positive. Id. A November 7, 2003 MRI revealed “increased T2-weighted signal in the periventricular white matter.... Differential diagnosis includes gliosis versus hy-pomyelination.”6 Id. (alteration in original) (quoting Pet’rs’ Ex. 6, at 9; Pet’rs’ Ex. 4, at 304) (internal quotation marks omitted). Thereafter, Madison continued to experience seizures and receive related treatment. Id.
In April 2004, Madison was observed to have “delayed fíne motor skills, poor attention, and hyperactive behavior.” Id. at *6 (citing Pet’rs’ Ex. 6, at 10; Pet’rs’ Ex. 4, at 163). In February 2005, while at the hospital for treatment, it was observed that Madison’s development stopped after her first year. Id. Madison continued to experience seizures through 2005. Id.
In December 2005, genetic testing revealed that Madison had a “DNA sequence variation in [her] SCN1A gene.” Id. at *7. The laboratory report stated that the mutation was not inherited and arose de novo. Id. An SCN1A mutation has been associated with Dravet’s Sydrome (“DS”), which is also known as Severe Myoclonic Epilepsy of Infancy (“SMEI”).7 Id. at *7-8. Following genetic testing, “her treating physicians consistently noted the diagnosis of DS and/or SCN1A mutation in association with her chronic seizures and developmental delays.” Id. at *7.
B. Procedural History
On March 11, 2005, before Madison’s genetic mutation was discovered, petitioners filed a petition for compensation on behalf of Madison pursuant to the Vaccine Act. Id. at *1. The petition alleged that Madison’s seizure disorder resulted from the DTaP vaccine she received. Id. On September 20, 2007, a hearing was held before Special Master Millman. Id.
At this hearing, petitioners and respondent each presented two experts. Petitioners presented the testimony of Dr. Tornatore, “an associate professor of neurology at Georgetown University School of Medicine ... [who] serves as director of its neurology residency program.” Id. at *9. Dr. Torna-tore is board certified in neurology. Id. Dr. *587Tornatore testified that Madison had a reaction to the vaccine as a result of her poor immune system, which triggered the initial seizure and the subsequent condition. Id. at *10. The initial seizure, Dr. Tornatore testified, caused brain damage that resulted in the full extent of Madison’s condition. Id. He also testified that the vaccine caused Madison’s Kawasaki disease. Id.
Petitioners also presented the testimony of Dr. Joseph Bellanti, “a professor of pediatrics in microbiology and immunology at Georgetown University School of Medicine.” Id. Similar to Dr. Tornatore, Dr. Bellanti’s testimony was that “the vaccinations Madison received triggered an inflammatory response that cascaded into all the conditions from which she suffered.” Id.
The experts put forward by respondent testified that the vaccine did not cause Madison’s condition. Dr. Russell Snyder, a neurologist who is board certified in neurology, pediatries, and pediatric neurology, testified that Madison’s condition “could be explained completely by Kawasaki disease” and that there was no evidence that Madison’s initial seizure resulted in brain damage. Id. He testified that “DTaP vaccination can cause febrile seizures but not chronic seizure disorders in children.” Id. Additionally, Dr. Snyder noted the relationship between SCN1A mutations and DS. Id. at *11. He explained that, with an SCN1A mutation, the vaccine could have caused a fever that resulted in the initial seizure, but the fever “would not be a ‘cause’ of the child’s neurological problems.” Id.
Dr. Brian Ward was the second of respondent’s experts before Special Master Mill-man. Dr. Ward, “an infectious disease specialist from McGill University,” testified that Madison’s condition was caused by enterovi-rus. Id. He opined that her initial seizure was not related to the vaccination. Id. Additionally, although he agreed that the vaccination could have caused a fever, he stated that it would not have caused brain damage. Id.
After reviewing the testimony and all the evidence, Special Master Millman concluded that petitioners had established causation and were entitled to compensation. Deribeaux ex rel. Deribeaux v. Sec’y of Dept. of Health & Human Servs., No. 05-306V, 2007 WL 4623461, at *36 (Fed.Cl. Dec. 17, 2007), vacated by Deribeaux, 2011 WL 6935504. She then directed the parties to begin the damages phase of the proceedings. Id.
During the damages phase, petitioners produced medical records at the request of respondent. These records, previously undisclosed, included documents relating to Madison’s diagnosis of DS and the opinions of her treating physicians that DS caused her seizures. Deribeaux, 2011 WL 6935504, at *1, *12. The records demonstrated that “Madison suffered from a genetic mutation known to cause a severe seizure and developmental disorder called [DS].” Id. at *1. As a result, respondent moved to re-open the entitlement phase of the proceeding. Id. at *1, *12.
After respondent moved to reopen the entitlement phase, the case was transferred to Special Master Lord. Id. at *1. Special Master Lord determined that the evidence presented before Special Master Millman was “sufficient to set forth Petitioners’ prima facie case, and to shift the burden of proof to the Secretary to establish alternative causation.” Id. at *3. Accordingly, Special Master Lord limited the proceedings before her, including briefing and a hearing, to the issue of whether respondent carried her burden to show alternative causation. Id.
During the second set of proceedings, petitioners’ expert, Dr. Tornatore, stated that his opinion expressed during the first proceedings was unchanged by the evidence of Madison’s DS. Id. at *6, *12. Respondent presented the testimony of an additional expert not involved in the first hearing, Dr. Gerald Raymond. Id. at *12. “Dr. Raymond opined that the sole cause of Madison’s neurological disorders was her genetic mutation, and that vaccination neither caused nor aggravated her condition.” Id. (citing Resp’t’s Ex. RR, at 6).
After reviewing the briefs of the parties, the testimony of both experts, the findings of Special Master Millman, and the plethora of medical literature presented by both sides, Special Master Lord determined that respondent carried her burden to demonstrate al*588ternative causation and concluded that “DS provided a complete, alternative explanation for Madison’s condition.” Id. at *46. Accordingly, she found that petitioners had not established entitlement to compensation. Id.
Pursuant to Vaccine Rule 23 of Appendix B of the Rules of the Court of Federal Claims, on January 9, 2012 petitioners filed a motion for review in the Court of Federal Claims requesting the court to “set aside the Decision and that a decision be entered in Petitioners’ favor or in the alternative that the Court remand the case back to the Special Master for further consideration.” Mot. for Review 2. Respondent filed a response in opposition to petitioners’ motion for review on February 8, 2012 (docket entry 117). A hearing was held on April 30, 2012.
II. Jurisdiction and Standard of Review
Pursuant to the Vaccine Act, the Court of Federal Claims has jurisdiction to review decisions of special masters. 42 U.S.C. § 300aa-12(e). After reviewing a motion for review, the Court of Federal Claims may do one of three things: it may (1) “uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision”; (2) “set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law”; or (3) “remand the petition to the special master for further action in accordance with the court’s direction.” Id. § 300aa-12(e)(2)(A)-(C).
The court will review the legal conclusions of the special master de novo and will defer to the special master on findings of fact, unless the court determines that such findings are arbitrary or capricious. Porter v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1248-49 (Fed.Cir.2011); Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed.Cir.2010). “ ‘[Reversible error will be extremely difficult to demonstrate’ where the special master ‘has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision.’ ” Porter, 663 F.3d at 1253-54
(quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed.Cir.1991)).
III. Discussion
In their motion for review, petitioners make three objections to the decision of the special master denying them entitlement to compensation. First, petitioners challenge the special master’s analysis in concluding that respondent met her burden of proof. Petitioners state that a different standard should have been utilized—namely the allegedly higher burden of proof contained in the Restatement (Second) of Torts rather than the three-part test announced by the Federal Circuit in Althen v. Secretary of Health & Human Services, 418 F.3d 1274 (Fed.Cir.2005). Second, petitioners challenge the special master’s reliance on the testimony of respondent’s expert, Dr. Raymond, concerning the effect of Madison’s genetic mutation, arguing that the special master substituted the expert’s opinion for legal causation. Third, petitioners argue that the special master’s determination that respondent proved the existence of a “sole substantial factor unrelated” to the vaccination was arbitrary, capricious, an abuse of discretion, and contrary to law.
A. Petitioners’ Objection to the Standard of Proof Used by the Special Master in Finding for Respondent
Pursuant to the Vaccine Act, there are two ways in which a petitioner can show that a vaccine caused his injuries. He may demonstrate that his injury is listed on the Vaccine Injury Table (a Table injury), in which case he will receive a statutory presumption of causation. 42 U.S.C. §§ 300aa-11(c), -14(a). If his injury is not on the Vaccine Injury Table (an off-Table injury), he must prove causation in fact to demonstrate entitlement to compensation. Id. §§ 300aa-11(c), -13(a)(1). In this case, Madison’s condition was off-Table, thus requiring petitioners to prove causation in fact by a preponderance of the evidence. Id. § 300aa-13(a)(l).
The Federal Circuit has established a three-prong test that petitioners alleging an offTable injury must satisfy in order to prove *589causation. See Althen, 418 F.3d at 1278. Specifically, a petitioner must
show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.
Id.
Once a petitioner establishes his pri-ma facie ease by satisfying the Althen threeprong test, the burden shifts to the respondent to show by a preponderance of the evidence that the injury is the result of factors unrelated to the vaccine. See 42 U.S.C. § 300aa-13. In order to meet its burden, the government must “identify[] a particular ... factor (or factors) and pres-ente ] sufficient evidence to establish that it was the sole substantial factor in bringing about the injury.” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347,1354 (Fed.Cir.2008) (citing Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed.Cir.1994)); accord Althen, 418 F.3d at 1278.
In this case, Special Master Lord determined that, given the evidence presented at the proceeding before Special Master Mill-man, petitioners established their prima facie case of causation and entitlement to compensation. Deribeaux, 2011 WL 6935504, at *3. Accordingly, the burden shifted, and Special Master Lord limited the proceedings before her to the specific issue of whether respondent carried her burden of establishing alternative causation. Id.
Petitioners take issue with the analysis the special master applied when reviewing the evidence respondent presented to show that a factor unrelated to the vaccine caused Madison’s condition. Specifically, they argue that the special master should have applied the standard contained in the Restatement (Second) of Torts as announced in Shyface v. Secretary of Health & Human Services, 165 F.3d 1344 (Fed.Cir.1999), not the three-part Althen test. In Shyface, which pre-dates the Althen decision by approximately six years, the Federal Circuit adopted, the Restatement (Second) of Torts approach to causal relationships and held that “establishment oí'prima facie entitlement to compensation according to the non-Table method would require the petitioner to prove, by a preponderance of the evidence, that the vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Shyface, 165 F.3d at 1352. In addition, the Shyface court endorsed the Restatement’s recognition that
concurrent forces may bring about a single harm, requiring weighing the contributing factors: ... “Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of [another factor] insignificant and, therefore, to prevent it from being a substantial factor.”
Id. (quoting Restatement (Second) of Torts § 433 cmt. d).
Petitioners mischaracterize the relationship between the Federal Circuit’s adoption of the Restatement (Second) of Torts in Shy-face and its announcement of the three-part test in Althen. The Restatement standard, as adopted in Shyface, is not at odds with the Althen factors; rather, those factors are themselves derived from the Restatement standard.
In Shyface, the Federal Circuit determined that, to prevail on a petition for compensation, a petitioner must show “by a preponderance of the evidence, that the vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Shyface, 165 F.3d at 1352. The Althen court viewed this standard in conjunction with the analyses in other off-Table injury eases and succinctly stated the test petitioners must meet in order to state a prima facie ease. More specifically, in Althen the Federal Circuit began with the statutory requirements for proving an off-Table injury, 42 U.S.C. §§ 300aa-ll(e)(l)(C)(ii)(I), -13(a)(1), then cited Shyface for the proposition that a petitioner must prove by a preponderance of the evidence that the vaccine caused his injury. Althen, 418 F.3d at 1278 (citing Shyface, *590165 F.3d at 1352-53). It relied on Grant v. Secretary of Health & Human Services, a 1992 off-Table injury case, to explain that “[t]o meet the preponderance standard, [a petitioner] must ‘show a medical theory causally connecting the vaccination and the injury.’ ” Althen, 418 F.3d at 1278 (citing Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148 (Fed.Cir.1992)). After briefly discussing Grant, the Althen court adopted the Shyface standard, influenced by the Restatement (Second) of Torts, that a petitioner must show “the vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Id. (quoting Shyface,. 165 F.3d at 1352-53) (internal quotation marks omitted). This assessment of the standards employed in off-Table vaccine cases preceding Althen led the court to announce its three-part test. The Althen test embodies the concepts contained in the Restatement (Second) of Torts that were adopted by the Shyface court. See Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1379 (Fed.Cir.2012) (“[T]he causation standard in off-Table Vaccine Act cases is to be applied consistently with the principles set forth in the Second Restatement of Torts.” (citing Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146, 1151 (Fed.Cir.2007))); Walther, 485 F.3d at 1150 (explaining that, in the context of vaccine cases, the Federal Circuit in Shyface “adopted the actual causation standard of the Restatement (Second) of Torts” and that “precedent has established that a petitioner satisfies this standard by” meeting the three-part Althen test); Ham-mitt ex rel. Hammitt v. Sec’y of Health & Human Servs., 98 Fed.Cl. 719, 728 (2011) (explaining that a petitioner meets the standard announced in Shyface, taken from the Restatement (Second) of Torts, by satisfying the three prongs of Althen), aff'd sub nom. Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373 (Fed.Cir.2012).
Accordingly, by applying the Althen factors to respondent’s ease, the special master in fact applied the Restatement standard. Therefore, the Court rejects petitioners’ argument that the special master should have applied the standard announced in Shyface. Indeed, that standard is subsumed within the Althen three-prong test.
To the extent that petitioners are arguing that the special master should have applied a superseding cause analysis, see Mot. for Review 6-8, the Court disagrees. As this court has observed, “the ‘factor unrelated’ defense under the Vaccine Act is not analogous to the defense of ‘superseding cause’ in the common law.” Hammitt, 98 Fed.Cl. at 728; see also Stone v. Sec’y of Health & Human Servs., 99 Fed.Cl. 187, 192 (2011) (observing the distinction between a superseding cause and the sole cause of an injury), aff'd, 676 F.3d 1373 (Fed.Cir.2012). Additionally, as respondent points out, she never presented a superseding cause theory in support of her case. By law, respondent’s burden is to establish by preponderant evidence that a factor unrelated to the vaccine caused Madison’s condition. 42 U.S.C. § 300aa-13(a)(l). This is the standard that the special master applied when conducting her analysis of respondent’s evidence. This was in accordance with law and the special master was under no obligation to conduct a superseding cause analysis.8 See Stone, 676 F.3d at 1381 (“[The superseding cause] analysis has no role to play where ... the initial factor is found to have no causal relationship to the ultimate injury.”).9
*591Intertwined with their previous arguments, petitioners contend that the special master should have applied a higher burden of proof to respondent’s ease. Mot. for Review 8,11-12. First, the Vaccine Act itself states that the government’s burden is to prove by a preponderance of the evidence a substantial factor unrelated to the vaccine caused the injury. 42 U.S.C. § 300aa-13(a)(l)(B). This is identical to the burden of proof a petitioner bears to establish his prima facie case. Id. § 300aal3 (a)(1)(A) (“Compensation shall be awarded under the Program to a petitioner if the special master or court finds on the record as a whole ... that the petitioner has demonstrated by a preponderance of the evidence the matters required in the peti-tion_”). Case law indicates that the only time a petitioner’s burden should be weighed differently from respondent’s is when “the evidence is seen in equipoise,” in which case-“the government has failed in its burden of persuasion and compensation must be awarded.” Knudsen, 35 F.3d at 550; see Althen, 418 F.3d at 1280 (noting that in “the system created by Congress ... close calls regarding causation are resolved in favor of injured claimants”). Indeed, the Federal Circuit has stated, “[T]he standards that apply to a petitioner’s proof of actual causation in fact in off-table cases should be the same as those that apply to the government’s proof of alternative actual causation in fact.” Knudsen, 35 F.3d at 549. Accordingly, the special master did not err when she applied a preponderance of the evidence standard to respondent’s case.
To the extent that petitioners take issue with the special master’s specific method of assessing respondent’s ease, namely employing the Althen factors to review respondent’s evidence in support of her theory that a factor unrelated to the vaccine caused Madison’s condition, the Court finds petitioners’ contention unpersuasive. According to statute, the special master was to assess whether respondent showed by “a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition.” 42 U.S.C. § 300aa-13(a)(l). And, as the Federal Circuit has observed, “[t]he special master’s role is to apply the law.” Althen, 418 F.3d at 1280. The statute does not dictate the precise method the special master is to employ when conducting this analysis. Here, the special master properly analyzed whether, pursuant to the Vaccine Act, respondent proved her case by a preponderance of the evidence.10
Accordingly, Special Master Lord did not act arbitrarily, capriciously, or contrary to law when she employed the Althen factors to analyze whether, after petitioners established their prima facie case, respondent carried her burden to prove that a factor unrelated to the vaccine caused Madison’s injuries.11
B. Petitioners’ Objection to the Special Master’s Reliance on the Expert Testimony of Dr. Raymond
Petitioners’ second objection in their motion for review is that the special master *592inappropriately relied on Dr. Raymond’s testimony regarding Madison’s genetic mutation and improperly substituted his testimony for legal causation. More specifically, petitioners argue that the “Special Master’s decision supplanting legal causation, or Respondent’s burden of proof, with Respondent’s expert’s medical opinion was not in accordance with law.” Mot. for Review 2; see id. at 12-14.
In support of their position, petitioners argue that the Vaccine Act states that the respondent must demonstrate legal causation with regard to the injury, and not merely rely on medical opinion to rebut a petitioner’s prima facie case. Id. at 13. Petitioners argue that it was contrary to law for Special Master Lord to rely on the evidence presented by Dr. Raymond, l’espondent’s expert during the second set of proceedings, and to disregard respondent’s other two experts as well as petitioners’ experts and evidence. Id. Petitioners argue that Special Master Lord erred when she “[chose] one expert over another” because the government fails to meet its burden, and compensation must be awarded, when a ease involves conflicting experts and the evidence is “seen in equipoise.” Id. (quoting Harris v. Sec’y of Health & Human Servs., 102 Fed.Cl. 282, 304 (2011)).
“The purpose of the Vaccine Act’s preponderance standard is to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body.” Althen, 418 F.3d at 1280. Accordingly, the circumstances of a given case are heavily considered when determining causation and specific, scientific proof is not required. Knudsen, 35 F.3d at 548-49 (explaining that “[c]ausation in fact under the Vaccine Act is ... based on the circumstances of the particular case” and that “to require identification and proof of specific biological mechanisms would be inconsistent with the purpose and nature of the vaccine compensation program”).
In light of the purpose and structure of the Vaccine Program, “[w]here ‘medical evidence [is] not definitive’ the special master may rely heavily on expert medical testimony.” Locane v. Sec’y of Health & Human Servs., 99 Fed.Cl. 715, 727 (2011) (second alteration in original) (quoting Broekelschen, 618 F.3d at 1347). In fact, it is the responsibility of the special master to weigh the persuasiveness of the expert testimony presented to him or her. Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1325 (Fed.Cir.2010) (“Weighing the persuasiveness of particular evidence often requires a finder of fact to assess the reliability of testimony, including expert testimony, and we have made clear that the special masters have that responsibility in Vaccine Act cases.”). As such, in vaccine cases, “[t]he special master’s decision often times is based on ... the relative persuasiveness of [the experts’] competing theories.” Broekelschen, 618 F.3d at 1347 (citing Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1362 (Fed.Cir.2000)); see Moberly, 592 F.3d at 1325 (noting that, in vaccine cases, “the legal standard is a preponderance of the evidence, not scientific certainty”). A special master’s determinations regarding the persuasiveness of expert testimony are afforded considerable deference. Broekelschen, 618 F.3d at 1347.
In this case, Special Master Lord carefully considered all the evidence presented in the course of the litigation. When the case was transferred to her, she limited the proceedings to the issue of whether Madison’s genetic mutation was a factor unrelated to the vaccine that caused her condition. She invited both parties to present evidence and argument in support of their respective positions.
Petitioners’ expert, Dr. Tornatore, did not change his testimony from the first proceeding, stating that his opinion was unaffected by the evidence of Madison’s genetic mutation. Deribeaux, 2011 WL 6935504, at *6, *12. With regard to the issue of causation, Dr. Tornatore explained that an MRI Madison received eighteen months after her initial seizure revealed that she suffered brain damage, which led him to conclude that the initial seizure, caused by the vaccine, resulted in her condition. Id. at *36-38. Dr. Raymond, respondent’s expert, refuted Dr. Tornatore’s opinion, explaining that, if such damage had been done by the first seizure, Madison would have exhibited clinical symptoms, *593which she did not. Id. at *38. The special master’s decision indicates that she carefully considered the opinions of both experts, finding respondent’s expert more persuasive and explaining that “[n]o reliable medical evidence supported the allegation that Madison’s initial seizure caused brain damage that led to further seizures.” Id.
The special master is entitled to find one expert’s opinion more persuasive than another’s, and there is nothing in the record that suggests that the special master erred when she determined that respondent’s expert’s opinion should be afforded more weight than the other experts’ opinions. This is especially so considering the findings contained in the relevant medical literature the special master reviewed as well as the specific qualifications of Dr. Raymond, who “is one of a limited number of physicians in the United States who holds board certifications in neurology and genetics, as well as special competence in child neurology and clinical genet ics.” Id. at *23. Dr. Tornatore is board certified in neurology, but not in genetics or pediatrics, a distinction that is particularly significant for purposes of this case.12 Id. at *9; see also id. at *38.
Accordingly, Special Master Lord did not act arbitrarily, capriciously, or contrary to law when, after considering all the evidence and testimony, she found Dr. Raymond’s expert opinion persuasive with regard to the issue of causation. It is within her discretion as a special master to rely on the testimonial evidence of experts and to determine the expert’s persuasiveness. See Broekelschen, 618 F.3d at 1347. Indeed, this very action is contemplated by the Vaccine Program. See Althen, 418 F.3d at 1280; Knudsen, 35 F.3d at 548-49; Locane, 99 Fed.Cl. at 727.
C. Petitioners’ Objection to the Special Master’s Determination that Respondent Proved the Existence of a Sole Substantial Factor Unrelated to the Vaccination
Petitioners’ third objection to the special master’s decision is that the special master’s determination that respondent demonstrated that a sole substantial factor unrelated to the vaccine caused Madison’s condition, and thus satisfied respondent’s burden of proof, was arbitrary, capricious, an abuse of discretion, and contrary to law. Petitioners seem to rest this objection on three theories: (1) respondent conceded that Madison’s first fever and seizure were triggered by the vaccine, (2) respondent presented more than one substantial factor unrelated to the vaccine, and (3) the evidence presented before the special master did not support her conclusion that respondent carried her burden.
1. Respondent’s Experts’ Statements that the Vaccine Triggered Madison’s First Fever and Seizure Do Not Render the Special Master’s Decision Arbitrary, Capricious, an Abuse of Discretion, or Contrary to Law
First, petitioners point out that all three of respondent’s experts conceded that the vaccine caused Madison’s first seizure, specifically highlighting Dr. Raymond’s agreement with the special master’s statement that the vaccine “likely contributed to the first febrile seizure.” Mot. for Review 15, 17. Petitioners argue that “it is arbitrary, capricious and an inherent contradiction to state the injury followed the vaccine but was not caused by the vaccine when all parties concede the vaccine caused the first seizure.”. Id. at 16.
Petitioners also point out that the genetic mutation Madison had “can be present with- ' out a diagnosis of [DS].” Id. They reason that respondent has not adequately shown that Madison’s symptoms would have resulted from this mutation regardless of the vaccine and posit that “the Special Master’s conclusion that Madison was ‘destined from infancy’ to have [DS] ignores actual reality ... and her conclusions are therefore contrary to law.” Id. at 17.
In addition, on this theory and somewhat intertwined with their first objection regard*594ing the standard of proof the special master applied, petitioners maintain that “[u]nder the Restatement of Torts [respondent] cannot meet [her] burden if the injury from the ‘alternate cause’ is indistinguishable from the vaccine injury.” Id. at 20. Petitioners rest this claim on the fact that respondent conceded that Madison’s first seizure was a result of the vaccine; if respondent cannot prove that the first seizure is due to the genetic mutation, and not the vaccine, petitioners maintain that respondent has not met her burden. Id.
Respondent argues that, although Dr. Raymond “agreed that the DTaP vaccination likely caused the fever, which brought about Madison’s initial seizure, he emphatically stated that the DTaP fever itself was not the cause of Madison’s seizure disorder.” Resp’t’s Resp. to Pet’rs’ Mot. for Review 18. Respondent then highlights the evidence that Madison’s age was “within the typical onset period for [DS]” and the manifestation of DS was “entirely typical.” Id. Additionally, respondent argues that there was no evidence that the initial seizure altered Madison’s clinical course or resulted in permanent brain damage. Id. at 18-19. In support of the soundness of the evidence, respondent highlights her expert’s qualifications as a child neurologist who often analyzes children who have suffered brain damage.
That respondent’s experts stated that the vaccine caused the initial fever and seizure does not lead the Court to conclude that the special master’s causation determination was erroneous. The evidence reviewed by the special master was sufficient to support her finding that the genetic mutation was a substantial factor unrelated to the vaccine that caused Madison’s condition. That the vaccine triggered the first seizure, a fact that Special Master Lord recognized, Deribeaux, 2011 WL 6935504, at *32, is not dispositive. The evidence proved that the initial seizure did not cause permanent brain damage and that Madison’s condition, including her developmental delay, is a result of DS, not the DTaP vaccine. Additionally, although the circumstances of each case should be considered anew, it is notable that the Federal Circuit has previously affirmed the determination that a mutation of a child’s SCN1A gene was the sole substantial factor unrelated to the DTaP vaccine in causing DS. See Stone, 676 F.3d 1373.13 Here, Special Master Lord’s finding that Madison’s genetic mutation was a sole substantial cause of her condition despite the fact that the vaccine triggered her initial seizure was not arbitrary or capricious.14
*5952. Respondent Proved by a Preponderance of the Evidence that a Sole Substantial Factor Unrelated to the Vaccine Caused Madison’s Condition
Petitioners’ second argument is that the respondent has “alleged three ‘sole substantial factors’ unrelated to the vaccine as potential causes of Madison’s injuries.” Mot. for Review 10-11. This, petitioners argue, has the effect of lowering respondent’s burden of proof.
As discussed, the Federal Circuit in de Bazan explained that the government meets its burden of proving a factor unrelated to the vaccine caused the injury “by identifying a particular factor (or factors) and presenting sufficient evidence to establish that it was the sole substantial factor in bringing about the injury.” 539 F.3d at 1354 (emphasis added) (citing Knudsen, 35 F.3d at 548). Notably, the Federal Circuit did not require the respondents in vaccine cases to establish the “sole factor” in bringing about a petitioner’s injury, but rather the sole substantial factor.
With regard to the meaning of the term substantial, the Federal Circuit explained that a petitioner must show that the vaccine was not only a but-for cause of the injury, but was also a substantial factor in bringing about such injury, de Bazan, 539 F.3d at 1351. The de Bazan court defined but-for causation as requiring that “the harm be attributable to the vaccine to some nonnegli-gible degree,” and noted that, although substantial is somewhere beyond the low threshold of but-for causation, it does not mean that a certain factor must be found to have definitively caused the injury. Id. Accordingly, a factor deemed to be substantial is one that falls somewhere between causing the injury to a non-negligible degree and being the “sole or predominant cause.” Id.
This definition of substantial — somewhere between non-negligible and predominant — is applicable to respondent’s burden to prove a sole substantial factor unrelated to the vaccine. Accordingly, a respondent’s burden is to prove that a certain factor is the only substantial factor — one somewhere between non-negligible and predominant — that caused the injury.
Here, although petitioners established their prima facie case, the special master determined that respondent successfully proved by more than preponderant evidence that Madison’s genetic mutation was the sole substantial factor contributing to her disease. Deribeaux, 2011 WL 6935504, at *44 (“Respondent submitted more than preponderant evidence that an alternative factor, Madison’s genetic mutation, was the sole substantial cause of her neurological condition.”). Nothing in the record suggests that this determination was erroneous or unfounded. Moreover, that respondent presented other evidence and testimony during the first proceeding that suggested that other factors may have contributed to Madison’s condition, such as Kawasaki’s disease and enterovirus, does not preclude the special master from determining that Madison’s genetic mutation was the sole substantial factor in bringing about her condition. This is especially so in light of the fact that the evidence of Madison’s genetic mutation was revealed after the first proceeding concluded.15
*5963. The Weight of the Evidence Supports the Special Master’s Determination
During oral argument, petitioners implicitly maintained that the weight of the evidence does not support the special master’s conclusion that respondent carried her burden of proof. They emphasized, in particular, that “[tjhere is no one-to-one relationship between Madison Deribeaux’s genetic mutation, and ... [her] seizure disorder.” Transcript of Oral Argument at 12-13, Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., No. 05-306V (Fed.Cl. Apr. 30, 2012). That the mutation necessarily results in DS, petitioners argued, is “total and complete speculation,” and the special master’s reliance on such speculation was erroneous. Id. Petitioners seem to argue that they should prevail because it cannot be said with absolute certainty that Madison, by reason of her genetic mutation, would have experienced the same symptoms even if she had not been vaccinated.
Special Master Lord rightly recognized in her decision that “[p]roof of an unrelated factor does not, under the Vaccine Act, require absolute certainty.” Deribeaux, 2011 WL 6935504, at *32; see Knudsen, 35 F.3d at 548-49 (“The detei’mination of causation in fact under the Vaccine Act involves ascertaining whether a sequence of cause and effect is ‘logical’ and legally probable, not medically or scientifically certain.”). In fact, a requirement that a respondent definitively prove that a factor unrelated to the vaccine caused the injury at issue would contravene the purpose of the Vaccine Act, which, as noted, is “to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body.” Al-then, 418 F.3d at 1280. Here, the special master found that, although the vaccine played a role in triggering Madison’s first seizure, “there is more than preponderant evidence that a genetic abnormality was the sole substantial cause of Madison’s neurological condition.” Deribeaux, 2011 WL 6935504, at *32. The special master was not required to find that a conclusive one-to-one relationship existed between Madison’s illness and her genetic mutation. The Court finds no error in the special master’s application of the preponderance standard under the Vaccine Act.
Accordingly, Special Master Lord did not abuse her discretion or act arbitrarily, capriciously, or contrary to law when she determined that respondent met her burden of proving by a preponderance of the evidence that a substantial factor unrelated to the vaccine caused Madison’s injuries.
CONCLUSION
In view of the foregoing, the Court upholds the special master’s findings of fact and conclusions of law as well as the special master’s decision denying petitioners’ claim for compensation under the Vaccine Act. Accordingly, petitioners’ motion for review is DENIED, and Special Master Lord’s December 9, 2011 decision is AFFIRMED.
IT IS SO ORDERED.
. Pursuant to Rule 18(b), Appendix B of the Rules of the Court of Federal Claims, this Opinion and Order is initially being filed under seal. By rule, the parties are afforded fourteen days in which to propose redactions.
. The parties do not dispute the underlying facts of this case, which, for purposes of this Opinion and Order, are taken from the special master's decision, Deribeaux ex rel. Deribeaux v. Secretary of Health & Human Services, No. 05-306V, 2011 WL 6935504 (Fed.Cl. Dec. 9, 2011). For a detailed recitation of the underlying facts, see id. at *3-10.
."Kawasaki disease is a rare, immune-mediated vasculitis that can affect the skin, heart, mucus membranes, eyes, mouth and central nervous system.” Deribeaux, 2011 WL 6935504, at *1 n. 4.
. The special master’s decision well explained the results of Madison’s MRI:
Hypomyelinization is the disappearance or inadequate formation of myelin sheaths on nerves. [Dorland’s Illustrated Medical Dictionary 903 (32d ed. 2012)]. (Note "myelinization" and "myelination” are used interchangeably, see id. at 1218). Metabolic disease is a general term for diseases caused by disruption of a normal metabolic pathway because of a genetically determined enzyme defect. Id. at 538. Mitochondrial diseases are a diverse group of mainly multisystemic and maternally inherited disorders caused by mutations of mitochondrial DNA_ Id. at 539. Me-■tachromatic leukodystrophy is an autoso-mal recessive genetic disorder. The infantile form usually begins in the second year of life and is additionally characterized by developmental delay, seizures, optic atrophy, ataxia, weakness, loss of speech, and progressive spastic quadripare-sis. Id. at 1029.
Deribeaux, 2011 WL 6935504, at *5 n. 11.
. "Enterovirus is a genus of viruses that preferentially inhabit the intestinal tract. Infection is usually asymptomatic or mild but may result in a variety of disease syndromes. Most strains of human enterovirus cause only mild symptoms such as fever.” Deribeaux, 2011 WL 6935504, at *5 n. 12 (citing Dorland's Illustrated Medical Dictionary, supra, at 626-27).
. Gliosis is the overgrowth of certain cells in a damaged area of the brain or spinal cord. Sted-man's Medical Dictionary 812 (28th ed. 2006); see Dorland's Illustrated Medical Dictionary, supra, at 784.
. DS is an epilepsy syndrome that typically presents during the first year of life. Deribeaux, 2011 WL 6935504, at *8. Infants with DS experience normal development for the first few months of life, "but then develop seizures in a characteristic fashion.” Id. (quoting Resp't’s Ex. RR, at 2) (internal quotation marks omitted). After the first seizures, which are typically prolonged, an individual with DS may “manifest a variety of types of seizures, not associated with fever,” which are difficult to treat. Id. (citing Resp't’s Ex. RR, at 2). After their first year, children with DS experience developmental delays. Id. A connection between DS and the SCN1A gene has been consistently observed. See id. at *8-9.
. Petitioners rely on the Office of Special Master’s decision in Sucker v. Secretary of Health & Human Services, No. 07-0058V, 2010 WL 1370627 (Fed.Cl. Mar. 15, 2010), to support their argument that a superseding cause analysis was required in this case. Mot. for Review 6-8. In Sucker, however, the respondent specifically presented a superseding cause theory and attempted, unsuccessfully, to prove that the victim’s genetic predisposition to seizures — a genetic predisposition not related to an SCN1A mutation — "was a superseding cause of her injury, rendering irrelevant the vaccine as a substantial cause.” Sucker, 2010 WL 1370627, at *43-45.
. Notably, Special Master Lord addressed the question of significant aggravation, an issue not addressed by Special Master Millman. See Deribeaux, 2011 WL 6935504, at *44-46. Significant aggravation "means any change for the worse in a preexisting condition which results in markedly greater disability, pain, or illness accompanied by substantial deterioration of health.” 42 U.S.C. § 300aa-33(4). The special master found that petitioners did not meet their burden of proving that Madison’s DS was aggravated by the DTaP vaccination, Deribeaux, 2011 WL 6935504, at *45-46, and petitioners do not now *591argue that Special Master Lord’s conclusion in this respect was arbitrary, capricious, contrary to law, or an abuse of discretion.
. The Office of Special Masters has previously applied the Althen three-part test when determining if the government met its burden of proof. See, e.g., Stewart v. Sec’y of Health & Human Servs., No. 06-777, 2011 WL 3241585, at *18 (Fed.Cl. July 8, 2011) (special master decision) ("In proving alternative causation, the government must also satisfy the three prong Althen test.”); Hazlehurst v. Sec’y of Health & Human Servs., No. 03-654V, 2009 WL 332306, at *18 (Fed.Cl. Feb. 12, 2009) (special master decision) ("Respondent bears the burden of proving alternative causation by preponderant evidence, and respondent establishes alternative causation (a factor unrelated to the administration of the vaccination) by satisfying the Althen factors....”), aff’d, 88 Fed.Cl. 473, aff'd, 604 F.3d 1343 (Fed.Cir.2010); Heinzelman v. Sec’y of Health & Human Servs., No. 07-01 V, 2008 WL 5479123, at *17-19 (Fed.Cl. Dec. 11, 2008) (special master decision) (employing the Althen factors when analyzing whether respondent met her burden of proving by preponderant evidence that a factor unrelated to the vaccine caused the petitioner's injury); Walther v. Sec'y of Health & Human Servs., No. 00-0426V, 2008 WL 243762, at *15 (Fed.Cl. Jan. 29, 2008) (special master decision) (noting that a respondent establishes a prima facie case of alternative causation by satisfying the Althen factors).
. Because the Court so finds, it need not address the issue of waiver that respondent has identified. See Resp't’s Resp. to Pet’rs’ Mot. for Review 15.
. The Federal Circuit has determined that, in two other cases involving children who received the DTaP vaccine and suffered from DS, the special master did not act arbitrarily or capriciously in finding that Dr. Raymond’s testimony was more persuasive than the testimony of the petitioners' experts in light of Dr. Raymond's qualifications. Stone, 676 F.3d at 1377-78, 1382-84.
. See also Hammitt, 98 Fed.Cl. at 727 ("[T]his Court finds Respondent's evidence that [the petitioner’s] SCN1A gene mutation caused her SMEI strong enough to demonstrate that it was the ‘sole substantial' cause_”); Stone, 99 Fed.Cl. at 193 (upholding the special master’s determination that the respondent proved by preponderant evidence that the petitioner’s "SMEI was caused solely by an SCN1A gene mutation, a factor unrelated to the [DTaP] vaccine”).
. Also in support of their argument that the special master improperly concluded that respondent met her burden even though her experts stated that the vaccine triggered Madison’s first seizure, petitioners cite Harris v. Secretary of Health & Human Services, 102 Fed.Cl. 282 (2011). Mot. for Review 18-19. In that case, the Court of Federal Claims reversed a special master’s decision denying compensation "because the Government failed to meet its burden of proof to establish that the presence of a SCN1A mutation was not merely a possible alternate cause of [the petitioner’s] first febrile seizure and [generalized epilepsy with febrile seizures plus ("GEFS + ”) ], but was, in fact, the sole cause of [the petitioner's] first febrile seizure and subsequent GEFS + .” Harris, 102 Fed.Cl. at 304. In Harris, the petitioner received the DTaP vaccine, suffered a seizure shortly thereafter, and was subsequently afflicted with periodic seizures, a condition that was found to be GEFS +, which is associated with an SCN1A genetic mutation, but was determined to be less severe than DS. Id. at 284-86. The main issue was "whether the DTaP vaccine, even if it caused the first seizure, affected [the petitioner’s] ultimate outcome.” Id. at 298. On review, the Court of Federal Claims noted that the case involved conflicting expert testimony and determined that, although the respondent had submitted sufficient evidence to show that the genetic mutation could be an alternative cause of petitioner’s injury, respondent had failed to meet her burden to prove that it was an alternative cause of the injury. Id. at 304. Therefore, the court concluded that the petitioner was entitled to compensation because he "carried his burden to demonstrate that his condition was caused-in-fact by his DTaP vaccination.” Id.
Petitioners argue that, in the present case, respondent has likewise failed to prove that Madison’s genetic mutation was the cause of her *595injury. However, in Harris, the condition resulting from the petitioner’s genetic mutation was less severe than DS, and Dr. Raymond — the same expert who testified for respondent during the second proceeding in this case — "was 'uncertain' as to why [the petitioner’s] mutation did not result in SMEI or [DS] in light of the factors he looks to when determining whether a mutation will be severe or not.” Id. at 302. Therefore, that there was inadequate evidence of causation in one case involving GEFS+ does not indicate that there is insufficient evidence of alternative causation in a different case, such as this one, involving DS. As noted, the circumstances of each particular case should dictate its result. Knudsen, 35 F.3d at 548 ("Causation in fact under the Vaccine Act is ... based on the circumstances of the particular case, having no hard and fast per se scientific or medical rules.”).
. With regard to the timing of the evidence of the genetic mutation, respondent at oral argument stated that the lateness of the mutation evidence "casts doubt on the reliability of the first Special Master’s conclusion that Petitioners had made their prima facie case.” Transcript of Oral Argument at 30, Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., No. 05-306V (Fed.Cl. Apr. 30, 2012). The Court recognizes that respondent's evidence is relevant not only once the burden shifts, but that the special master may also consider evidence offered by the respondent in evaluating the petitioner’s case-in-chief. Stone, 676 F.3d at 1379-80; Doe v. Sec'y *596of Health & Human Servs., 601 F.3d 1349, 1358 (Fed.Cir.2010); da Bazan, 539 F.3d at 1353. However, because the Court finds that the special master properly found that respondent carried her burden to show alternative causation, the Court need not inquire into how the evidence of Madison’s genetic mutation might have affected the outcome of petitioners' case-in-chief. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218285/ | OPINION
HEWITT, Chief Judge.
I. Background
This is a rails-to-trails case brought by Whispell Foreign Cars, Inc., et al. (plaintiffs). “Plaintiffs claim that the government effected a taking of their property when it converted a railroad right of way to a trail pursuant to the National Trails System Act Amendments of 1983 (the Trails Act Amendments), Pub.L. No. 98-11, 97 Stat. 42, to the National Trails System Act (Trails Act), Pub.L. No. 90-543, 82 Stat. 919 (1968) (codified as amended at 16 U.S.C. § 1241 (2006)).” Whispell Foreign Cars, Inc. v. United States (Whispell), 100 Fed.Cl. 529, 531 (2011). The court previously resolved the claims of several plaintiffs.1 With respect to the claim of Mr. Lawrence C. Aton, the court previously held that an ordinance passed by the city of *598St. Petersburg, Florida in 1914 (Ordinance 429) — which the parties stipulated is the conveyance at issue for the right of way across Mr. Alton’s property, see Second Joint Stipulation, Docket Number (Dkt. No.) 89, at 3— conveyed an easement and not title in fee simple from the city of St. Petersburg to the Tampa & Gulf Coast Railroad Co. (individually and/or collectively with its successors, as the context requires, Tampa & Gulf Coast), Whispell, 100 Fed.Cl. at 540, and that the scope of the easement granted to Tampa & Gulf Coast did not encompass use as a recreational trail, id. at 541.2
On January 3, 2012 the court ordered plaintiffs to “file additional documentation ... to support Mr. Alton’s claim of fee simple title to the property underlying the easement granted to the railroad by Ordinance 429.” Order of Jan. 3, 2012, Dkt. No. 131, at 2. With respect to Ordinance 429, the court noted that plaintiffs had stated in their briefing that
[t]he city did not own the land under the streets. The fee estate in the land under the streets was owned by the adjoining owners. The [c]ity held an easement to use the property for a street and granted the Railroad a railroad easement across their existing street-easement.
Id. at 1 (second alteration in original) (quoting Pis.’ Mem. of Law in Support of Mot. for Partial Summ. J., Dkt. No. 31, at 4 n.20). However, plaintiffs provided no citation “to any document in the record” that would support their contention that Mr. Alton did, in fact, own title in fee simple to the land underlying the railroad easement. Id. Defendant was provided an opportunity to respond, and plaintiffs wei’e provided an opportunity to reply. Id. at 2.
Before the court are Plaintiffs’ Response to this Court’s Order of January 3, 2012 (Dkt. [No.] 131) (Pis.’ Br.), Dkt. No. 136, filed February 15, 2012; the United States’ Memorandum in Response to Plaintiffs’ Supplemental Briefing on the Lawrence C. Alton Property (Def.’s Resp.), Dkt. No. 145, filed April 16, 2012; and Plaintiffs’ Reply in Support of their Supplemental Brief Filed February 15, 2012 (Dkt. [No.] 136) Re: Alton’s Chain of Title Confirming His Fee Ownership to the City Street Centerline (Pis.’ Reply), Dkt. No. 146, filed April 23,2012.
II. Legal Standards
“[0]nly persons with a valid property interest at the time of the taking are entitled to compensation.” Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001). “Because real property rights arise from state law, the extent of the plaintiffs’ property interests in the right-of-way depend on the law of the state in which the property is located.” Macy Elevator, Inc. v. United States, 97 Fed.Cl. 708, 718 (2011) (citing Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., — U.S. -, 130 S.Ct. 2592, 2597, 177 L.Ed.2d 184 (2010)); see also Whispell, 100 Fed.Cl. at 537 (“Whether an individual has a compensable private property interest is determined by state law.” (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972))).
Under Florida law:
Where the owner of land has it surveyed, mapped, and platted, showing subdivisions thereof, with spaces for intervening streets or other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and, where such conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets, in the absence of a contrary *599showing, extends to the center of such highway, subject to the public easement. And, where the highway is lawfully surrendered, the then holder of the title to abutting property and to the center of the street has the property relieved of the public easement.
Smith v. Horn, 70 Fla. 484, 70 So. 435, 436 (1915) (emphasis added); see also Winter v. Payne, 33 Fla. 470, 15 So. 211, 213 (1894) (“Where the owner of a tract of land makes a town plat of it, with spaces indicating the dedication of roads or streets, and conveys lots with reference to, and bounded by, said roads or streets, he thereby dedicates them to public use....”); Porter v. Carpenter, 39 Fla. 14, 21 So. 788, 789 (1897) (citing Winter for the same proposition); Florida S. Ry. Co. v. Brown, 23 Fla. 104, 1 So. 512, 513 (1887) (finding that “where a street or highway is the boundary of a lot or piece of land, ... the owner of such land owns the soil to the center of such street or highway, subject to the right of the public to pass and repass over and along it,” and that “when no street or highway is specifically mentioned in the conveyance, but the land is described by words or figures, and abuts on a street, ... the same rule prevails”); Burns v. McDaniel, 104 Fla. 526, 140 So. 314, 316 (1932) (“[I]n the absence of evidence to the contrary, [an] abutting lot owner is presumed to own the same to the center of the street.”). As provided in a Florida treatise:
In the absence of a statute providing for the acquisition of the fee or a deed from the owner expressly conveying the fee, the public, in obtaining property for use as a highway, acquires merely an easement of passage and the abutting property owner is presumed to own the soil to the center of the road subject to the easement in favor of the public. In such eases, the owner of land over which a highway passes retains the fee and all rights of property not incompatible with the public easement or right of passage common to all citizens.
28A Fla. Jur.2d Highways, Streets, and Bridges § 106 (2012); cf. Fla. Stat. § 177.085(1) (2011) (“When any owner of land subdivides the land and dedicates streets ... on the map or plat, and the dedication contains a provision that the re-versionary interest in the street ... is reserved unto the dedicator or his or her heirs ... and thereafter conveys abutting lots or tracts, the conveyance shall carry the rever-sionary interest in the abutting street to the centerline or other appropriate boundary, unless the owner clearly provides otherwise in the conveyance”).
III. Discussion
Plaintiffs attached to their opening brief in response to the court’s Order of January 3, 2012 “a complete Chain-of-Title Report [for] Mr. Alton’s property3 prepared by Stewart Title Guaranty Company in Tampa, Florida.” Pis.’ Br. 2 (footnote added).4 Plaintiffs state *600that all the conveyances are “between private individuals, families, or entities. There is no conveyance in this chain of title to Pinellas County or any other government entity.” Id. Plaintiffs state that there is only one deed in the chain of title report that mentions public roads or highways: a deed “dated March 19, 1911 ... between David W. Meeker and Jaime R. Meeker (the Meekers), to H. Walter [F]uller and Zophar L. Howell” (the Meeker to Howell deed). Id. According to plaintiffs, the Meeker to Howell deed provides that the land conveyed “is subject to the existing 100 — f[oo]t wide right-of-way of the Orange Belt Railway,” id. at 3, and is also
subject ... to all public roads or highways dedicated by [the Meekers] as shown by plats of record in the office of the Clerk of the Circuit Court of said County, and also as provided for in deed from [the Meekers] to W.A. Holshouser [ (the Meeker to Hol-shouser deed) ], dated November 3, 1906, recorded in deed book #73, page 147 in the office of said Clerk[,]
id. (internal quotation marks omitted); accord Pis.’ Ex. A at 12. The Meeker to Holshouser deed appears to grant from the Meekers to William A Holshouser a tract of land abutting the land conveyed in the Meeker to Howell deed. See Pis.’ Ex. B at 1. The Meeker to Holshouser deed states that the land was conveyed “[excepting a strip of land twenty five feet wide along the Westerly side of said ten acres which is reserved as the one half of a Street.” Id.
The parties appear to agree that: (1) Mr. Alton’s property was part of Fuller’s Subdivision, Def.’s Resp. 2-3, Pis.’ Reply 3; (2) Second Avenue was platted as part of Fuller’s Subdivision and abuts Mr. Alton’s property, Def.’s Resp. 3, Pis.’ Reply 3, 3 n.2; and (3) Second Avenue is the street on which the former rail corridor was located, Def.’s Resp. 3, Pis.’ Reply 3, 3 n.3. Plaintiffs and defendant agree that Mr. Alton’s property and Second Avenue were platted as part of Fuller’s Subdivision and the court is aware of no basis for concluding otherwise.
According to plaintiffs, the absence of a “single conveyance to the City of St. Peters-burg or Pinellas County ... conveying any interest in the land under the public roads,” Pis.’ Br. 3, shows that “the public roads are simply another easement burdening the property” and, therefore, that Mr. Alton owns to the centerline of the land subject to the railway easement, see id. at 4-5 (citing Smith v. Seaboard Air Line Ry. Co., 215 F.2d 365, 366 (5th Cir.1954) (“Prima facie the appellant, who is the abutting owner, has the fee to the middle of the street, subject to the easement in favor of the public-”)).
Defendant responds that “[u]nder Florida law, recording the [plat of Fuller’s Subdivision in which Mr. Alton’s property is located (Fuller plat) ] and selling lots referencing the plat constituted an offer to dedicate the platted streets for public use.” Def.’s Resp. 3. According to defendant, a 1926 aerial map of the city of St. Petersburg (which shows a street adjacent to the Alton property), see Def.’s Ex. A;5 cf. Straup Deck 1 (noting that Mr. Alton’s property abutted Second Avenue in a 1926 aerial photograph) — in connection with the Fuller plat, subsequent maps and the Florida rule that states that platted streets are deemed dedicated to public use— all “evidence[ ] the City’s interest in the land underlying the street.” Id.
While defendant does acknowledge the Florida rule that, when a platted street is dedicated to the public, the abutting lot owner remains the owner of the land underlying the street to the center line, see id. at 5 (citing Smith, 70 So. at 436), defendant nevertheless contends that “the City had a property interest in a street abutting the Alton *601property and retained that interest through June 2004,” id. at 7, because the city did not “waive or vacate its property interest” by granting an easement over the street to the railroad by the Ordinance 429, id. at 6. However, defendant does not specify what type of property interest — an easement or fee simple title, for example — it believes the city owns in the land underlying the railroad easement. See generally id.
Plaintiffs reply that “[a]s a matter of Florida law, Alton owned fee title to the land under the street abutting his platted lots,” Pis.’ Reply 2, and that because Mr. Alton— and not the city — owned fee title to the land underlying the street, “[t]he government’s arguments about the City not waiving a property interest are irrelevant,” id. at 4.
Many of the legible deeds in Mr. Alton’s chain of title, including one legible deed from as early as 1921, describe the Alton property as “Lots Seven (7) and Eight (8) Block Twenty One (21) of Fuller’s Subdivision, according to the plat thereof on file in the office of the Clerk of the Circuit Court County of Pinellas State of Florida plat book 1, page 16.” See Pis.’ Ex. A at 38; accord, e.g., id. at 5,10, 24-26. According to defendant, Fuller’s Subdivision is “shown on a plat recorded in or about 1912.” Def.’s Resp. 2-3.6
In these circumstances, Florida law dictates that fee title to the land under the street remains .in the owner or the owner’s grantees:
Where the owner of land has it surveyed, mapped, and platted, showing subdivisions thereof, with spaces for intervening streets or other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other highways to the public use as such, the title to the land under the street remaining in the owner or his grantees.
Smith, 70 So. at 436. Here, when Fuller’s Subdivision was platted, the owner “evince[d] an intention” to grant easements to the city of St. Petersburg over the platted streets. Absent an express statement to the contrary in subsequent conveyances of properties forming part of Fuller’s Subdivision, the abutting owners (including Mr. Alton) remain the owners in fee simple to the centerline of the land under the street.7 See id.; Burns, 140 So. at 316.
*602Mr. Alton’s predecessor in interest was therefore the fee simple owner of the land underlying the City’s street easement in 1914 when the City granted an easement to Tampa & Gulf Coast. See St. Petersburg, Fla., Ordinance 429 (Apr. 16, 1914)8; Whispell, 100 Fed.Cl. at 541 (holding that Ordinance 429 granted an easement to Tampa & Gulf Coast). Mr. Alton’s predecessors in interest also held fee title to the centerline of the land underlying the railway easement for the easement’s duration, and Mr. Alton was the owner in fee simple of the land under the railroad easement at the time of the taking.
As explained in Rogers v. United States, “Because [the railroad] obtained an easement in the [relevant] conveyance, successors to the ... grantees [of the easement] retained fee title [under Florida law] to the underlying land encumbered by the easement.” 90 Fed.Cl. 418, 431 (2009) (citing Smith, 70 So. at 436). Mr. Alton, therefore, is a plaintiff entitled to just compensation pursuant to the court’s August 2011 decision. See Whispell, 100 Fed.Cl. at 541 (concluding that “Ordinance 429 granted an easement limited to constructing, maintaining, and operating railway tracks, and the government effected a taking of plaintiffs’ property by imposing a new easement for public recreational trail use on their property” (emphasis omitted) (citation and internal quotation marks omitted)).
IV. Conclusion
Mr. Alton was the owner in fee simple of the property to the centerline of the land underlying the railway easement at the time of the taking and is entitled to just compensation therfor.
IT IS SO ORDERED.
. The court’s previous opinions in this matter provide more detail on the facts of this case and the resolution of various plaintiffs’ claims. See generally Whispell Foreign Cars, Inc. v. United States, 100 Fed.Cl. 529 (2011); Whispell Foreign Cars, Inc. v. United States, 97 Fed.Cl. 324 (2011).
. In addition to the question of Mr. Lawrence C. Alton's title to the land underlying the railroad easement addressed in this Opinion, the court must also determine the proper measure of just compensation owed to Mr. Alton. Briefing by the parties on cross-motions for summary judgment on the issue of just compensation was stayed pending the court’s resolution of the title issue. See Order of Jan. 5, 2012, Docket Number (Dkt. No.) 133, at 1-2.
. Upon reviewing the copies of the documents provided, the court found many of them to be illegible. See Order of Feb. 23, 2012, Dkt. No. 139, at 1 (noting that “[p]ortions of the Exhibit are illegible”). On February 23, 2012 the court ordered plaintiffs to "file legible copies of those portions of Exhibit A that are not legible ... on or before Thursday, March 22, 2012.” Id. On March 22, 2012 plaintiffs filed a notice stating that "[i]n compliance with this Court's order, Plaintiffs contacted Stewart Title Company and asked their personnel to make efforts to obtain more legible copies of the documents referenced in this Court's February 23, 2012, Order." Pis.’ Notice of Compliance in Resp. to this Court’s Order of Feb. 23, 2012, Dkt. No. 142, at 2. Plaintiffs state that ”[a]fter diligent efforts, Stewart Title Company was unable to procure any better copies of the documents.” Id.
The documents are not sufficiently clear to verify plaintiffs’ statement that "[tjhere is no conveyance in this chain of title to Pinellas County or any other government entity,” Pis.’ Resp. to This Court's Order of Jan. 3, 2012 (Dkt. [No.] 131) (Pis.’ Br. or Plaintiffs’ Brief), Dkt. No. 136, at 2; however, because the court can resolve the matter on the basis of Florida case law, see infra Part III; cf. infra note 7 (concluding that because defendant provides no evidence to rebut the Florida law presumption that the public acquires only an easement in a city street, it is appropriate to conclude that the land underlying the street was not previously conveyed to the city in fee simple), the court determines that it is not essential that legible documents be produced in order to resolve the question of Mr. Alton’s claim of title.
. Plaintiffs’ Brief consists of five unnumbered pages and two attached exhibits (Exhibits A and B) which provide the chain of title information. See generally Pis.' Br. For ease of reference, the court treats the five pages of the body of the brief as though they were numbered pages 1-5. Be*600cause the attached Exhibits are not independently paginated, when citing to the Exhibits, the court refers to the numbers assigned to the pages of the Exhibits by the CM/ECF electronic filing' system.
. Defendant attached five documents to its Response. United States’ Mem. in Resp. to Pis.’ Supplemental Briefing on the Lawrence C. Alton Property (Def.’s Resp.), Dkt. No. 145. The first document is a declaration by Cindi Straup, director of Axxion Administration, LLC, which the court will refer to in citations as the "Straup Declaration." The remaining four documents are exhibits to the Straup Declaration and will be referred to by the court as defendant’s Exhibits A through D. See Def.’s Exs., Dkt. Nos. 145-2 through 145-5.
. At least one street abutting the Alton property apparently pre-dates the plat of Fuller’s Subdivision (Fuller plat). A deed from 1906 conveying the Alton property from David and Jennie Meeker to William A. Holshouser (Meeker to Hol-shouser deed) excepts from the conveyance "a strip of land twenty five feet wide along the Westerly side of said ten acres which is reserved as the one half of a Street.” See Pis.’ Ex. B at 1. Moreover, a deed dated March 19, 1911 (Meeker to Howell deed) references a "right of way, one hundred (100) [feet] in width; granted to the Orange Belt Railway,” Pis.’ Ex. A at 11, and references "public roads or highways ... as shown by plats of record,” id. at 12. The reference to roads and highways "shown by plats of record” in the Meeker to Howell deed dated 1911 indicates that, although the Fuller plat may have been filed in 1912, at least one plat that included Mr. Alton’s property predated the March 19, 1911 deed.
. Many of the deeds that predate the 1912 Fuller plat are illegible, and at least one street that abuts the Alton property predates the Fuller plat. See supra note 6. It is therefore theoretically possible that one of these deeds granted fee simple interest to the city in the roadway. However, plaintiffs represent that ”[t]here is no conveyance in [Mr. Alton’s] chain of title to Pinellas County or any other government entity,” Pis.' Br. 2, and defendant does not contend otherwise, see Def.’s Resp. passim.
Under the default rule of Florida property law, public entities in the state ordinarily obtain only easements in public streets. See 28A Fla. Jur.2d Highways, Streets, and Bridges § 106 (2012) (noting that ”[i]n the absence of a statute providing for the acquisition of the fee or a deed from the owner expressly conveying the fee, the public, in obtaining property for use as a highway, acquires merely an easement of passage”). Defendant provides no evidence to rebut the presumption under Florida law that the public acquires only an easement in a city street. In these circumstances, it is appropriate to conclude that no previous conveyances of the land underlying the street to the city change the result of the default plat rule.
This conclusion is further supported by the language of the few legible deeds that date prior to the 1912 Fuller plat. The 1906 deed states that the land is conveyed "[excepting a strip of land twenty five feet wide along the Westerly side of said ten acres which is reserved as the one half of a Street." Pis.’ Ex. B at 1. The wording *602of the 1911 Meeker to Howell deed indicates that the twenty-five feet reserved for “one half of a Street” in the 1906 Meeker to Holshouser deed referred to an easement, stating that the grantee took the land "subject ... to all public roads or highways dedicated by the [Meekers] as shown by plats of record ... and also as provided for in the [1906 Meeker to Holshouser deed].” Pis.’ Ex. A at 12 (emphasis added).
. A copy of Ordinance 429 was attached to the court’s Order of June 27, 2011, Dkt. No. 85, at 2. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218286/ | OPINION AND ORDER
GEORGE W. MILLER, Judge.
Plaintiff, Red River Coal Company, Inc., filed a complaint against the United States on July 31, 2001 (docket entry 1), which it amended on February 6, 2007 (docket entry 26-1), seeking reimbursement of $246,372.17 in fees it paid pursuant to the Surface Mining Control and Reclamation Act of 1977. See Am. Compl. 4-5. On October 26, 2001, an initial stay was granted (docket entry 7), which was subsequently extended on September 13, 2002 (docket entry 15) pending the resolution of Consolidation Coal Co. v. United States, No. 01-254C (Fed.Cl. filed Apr. 27, 2001). On June 13, 2011, the Supreme Court denied the plaintiffs’ petition for a writ of certiorari in Consolidation Coal. See Consolidation Coal Co. v. United States, — U.S. -, 131 S.Ct. 2990, 180 L.Ed.2d 821 (2011). Plaintiff subsequently filed a motion to continue the stay of proceedings (docket entry 40, Oct. 14, 2011), which the Court denied on January 31, 2012 (docket entry 47). On February 16, 2012, defendant filed a motion for summary judgment pursuant to Rule 56 of the Rules of the Court of Federal Claims (“RCFC”) (docket entry 48). Plaintiff filed its response in opposition to defendant’s motion for summary judgment on March 1, 2012 (docket entry 49), and defendant filed its reply in support of its motion on March 6, 2012 (docket entry 50). For the reasons set forth below, the Court GRANTS defendant’s motion for summary judgment.
I. Background
A. Statutory and Regulatory History
In 1977, Congress passed the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), Pub.L. No. 95-87, 91 Stat. 445 (codified as amended at 30 U.S.C. §§ 1201-1328), which established the Abandoned Mine Reclamation Fund in order to, among other activities, restore land and water resources damaged by coal mining. 30 U.S.C. § 1231(a), (c). This fund is supported in part by a reclamation, or abandoned mine land (“AML”), fee levied on coal mining operators. Id. §§ 1231(b), 1232. Pursuant to statute, “[a]ll operators of coal mining operations ... shall pay to the Secretary of the Interior, for deposit in the fund, a reclamation fee” determined in part by the amount of “coal pro*604duced.”1 Id. § 1232(a). The statute does not define “coal produced” or explain when the fees are to be calculated. See id. § 1232. In December 1977, the Secretary of the Interior, acting through the Office of Surface Mining Reclamation and Enforcement (“OSM”), promulgated regulations providing that the fee on coal produced is to be calculated “by the weight and value at the time of initial bona fide sale, transfer of ownership, or use by the operator.” Abandoned Mine Reclamation Fund-Fee Collection and Coal Production Reporting, 42 Fed.Reg. 62713, 62715 (Dec. 13,1977) (codified as amended at 30 C.F.R. § 870.12). The regulations do not provide a definition for “coal produced.” See 30 C.F.R. § 870.
B. Case Law
In 2001, over sixty coal producers filed a complaint in the United States Court of Federal Claims. See Complaint at 1-2, Consolidation Coal Co. v. United States, 54 Fed.Cl. 14 (2002). The plaintiffs challenged the constitutionality of the AML fees they paid for exported coal. Consolidation Coal Co. (“Consol. I ”), 54 Fed.Cl. at 15. They alleged that the AML fee, as applied to exported coal, violated the Export Clause of the United States Constitution.2 Id. The Court of Federal Claims originally dismissed the ease for lack of subject matter jurisdiction. Id. at 20. The court held that jurisdiction in the Court of Federal Claims was improper because a provision of SMCRA provides for judicial review of regulations in the United States District Court for the District of Columbia when a petition for review is filed within sixty days following the enactment of the regulations. Id. at 17, 19-20; see 30 U.S.C. § 1276(a)(1).
The United States Court of Appeals for the Federal Circuit reversed and held that the Court of Federal Claims possessed jurisdiction. Consolidation Coal Co. v. United States (“Consol. II”), 351 F.3d 1374, 1381 (Fed.Cir.2003). Relying on Cyprus Amax Coal Co. v. United States, 205 F.3d 1369 (Fed.Cir.2000), the court found that because the Export Clause provides a self-executing cause of action that mandates compensation, it provides the substantive right necessary for this court to have jurisdiction. Consol. II, 351 F.3d at 1379; see Cyprus Amax Coal Co., 205 F.3d at 1376 (“[T]he [Export] [Cjlause provides a cause of action to recover money that was unlawfully exacted through either a duty or a tax.”). On remand, the Court of Federal Claims granted summary judgment for the plaintiffs, holding that the AML fee as applied to exported coal violated the Export Clause. Consolidation Coal Co. v. United States (“Consol. III”), 64 Fed.Cl. 718, 724-28, 733 (2005).
On appeal, the Federal Circuit addressed the constitutionality. of SMCRA and employed the canon of constitutional avoidance3 to find that “coal produced” referred only to “coal extracted.” See Consolidation Coal Co. v. United States (“Consol. IV”), 528 F.3d 1344, 1347-48 (Fed.Cir.2008). The court concluded that this determination was not “plainly contrary to the intent of Congress,” id. at 1347 (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)) (internal quotation marks omitted), and therefore was “the only reasonable construction which preserves the constitutionality of the statute.” Id. at 1348. The court’s interpretation thus avoided a conflict between SMCRA and the Export Clause. See id. at 1347. The court acknowledged that the AML-fee would be unconstitu*605tional if an alternative interpretation were adopted that included both the extraction and sale of coal. Id. The court thus reversed the decision in Consol. III and remanded the case to the Court of Federal Claims. Id. at 1348.
On remand, the plaintiffs argued that the Federal Circuit addressed only the constitutionality of SMCRA and that the OSM regulations deferring the calculation of the AML fee until the time of sale violated the Export Clause and therefore were unconstitutional. See Consolidation Coal Co. v. United States (“Consol. V”), 86 Fed.Cl. 384, 385 (2009). The Court of Federal Claims disagreed and granted the defendant’s motion for summary judgment, interpreting the Federal Circuit’s opinion in Consol. IV as having addressed the OSM regulations as well as SMCRA. Id. at 389-90. On appeal, the Federal Circuit held that the OSM regulations did not violate the Export Clause and were therefore constitutional. Consolidation Coal Co. v. United States (“Consol. VI”), 615 F.3d 1378, 1381-82 (Fed.Cir.2010). The court also held that the time of fee calculation did not affect the fact that the liability for the fee accrued at the time of extraction. Id. at 1382. The plaintiffs’ subsequent combined petition for a rehearing and a rehearing en banc was denied, see id. at 1378, as was their petition for a writ of certiorari to the Supreme Court, Consolidation Coal Co., 131 S.Ct. 2990.
C. Pending Action
On July 31, 2001, plaintiff filed a complaint in this court alleging that the AML fee, as applied to coal that is exported from the United States, violates the Export Clause of the United States Constitution. Am. Compl. ¶ 16. Plaintiff also claims that the “unconstitutional exaction of the Coal Reclamation Fee on coal sold for export violates the Takings Clause of the Fifth Amendment of the United States Constitution.”4 Id. ¶ 20. Defendant addresses plaintiffs second claim as including both a Takings Clause claim as well as an illegal exaction claim. Def.’s Mot. Summ. J. 8.
Plaintiffs case was stayed pending the resolution of Consolidation Coal.5 Following the Supreme Court’s denial of the plaintiffs’ petition for a writ of certiorari in Consolidation Coal, plaintiff in this case requested a stay pending the resolution of Coal River Energy, LLC v. Salazar, No. 11-01648 (D.D.C. filed Sept. 13, 2011), and the subsequent resolution by the Supreme Court of any circuit split that might theoretically result (docket entry 40, Oct. 14, 2011). The Court denied the motion, see Jan. 31, 2012 Opinion and Order 2, and defendant filed a motion for summary judgment.
II. Discussion
Summary judgment is appropriate when there exists “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Curtis v. United States, 168 F.Supp. 213, 216 (Ct.Cl.1958) (“A material fact is one that will make a difference in the result of the case.”); Rogers v. United States, 101 Fed.Cl. 287, 292 (2011) (citing Anderson, 477 U.S. at 247, 106 S.Ct. 2505). “[A]ll evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable factual inferences should be drawn in favor of the nonmoving party.” Dairyland Power Coop. v. United States, 16 *606F.3d 1197, 1202 (Fed.Cir.1994) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). The Court of Federal Claims is bound by the decisions of the Supreme Court, the Federal Circuit, and the Federal Circuit’s predecessor, the Court of Claims. See Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1353 (Fed.Cir.2006) (citing First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1290 n. 3 (Fed.Cir.1999)). Both parties agree that the decisions of the Federal Circuit in Consol. IV and Consol. VI are on point and constitute binding precedent. See Def.’s Mot. Summ. J. 6 (“This Court must now follow that straightforward precedent.”); Pl.’s Resp. to Def.’s Mot. Summ. J. 9 (“Plaintiff recognizes that this Court must follow the decisions of the Federal Circuit.”).
A. Defendant Is Entitled to Summary Judgment Because the Federal Circuit Has Already Determined the Constitutionality of SMCRA and the OSM Regulations
In support of its argument that the Court should not adhere to Federal Circuit precedent, plaintiff contends that the Federal Circuit wrongly decided Consol. IV and Consol. VI. This Court need not consider arguments regarding alleged mistakes by the Federal Circuit. See Banks v. United States, 76 Fed.Cl. 686, 691 (2007) (“Because the Federal Circuit is the appeals court for the Court of Federal Claims, this court will revisit an issue decided by the Federal Circuit only if changed circumstances in law or evidence make the Federal Circuit’s decision inappo-site.” (citation omitted)). Moreover, plaintiff concedes that this Court must follow the decisions of the Federal Circuit. See Pl.’s Resp. to Def.’s Mot. Summ. J. 27. Plaintiff does not dispute that Consol. IV and Consol. VI decided the same issues that are before the Court in this case, and it does not attempt to distinguish this ease on its facts. Id. at 8. For those reasons, this Court finds plaintiffs argument that the Federal Circuit wrongly decided previous cases to be unpersuasive. See generally Consol. VI, 615 F.3d 1378; Clinchfield Coal Co. v. United States, 105 Fed.Cl. 134, 2012 WL 1957630 (2012) (granting summary judgment because the legal issues were already decided by the Federal Circuit in Consol. TV and V7); Consolidation Coal Co. v. United States, 104 Fed.Cl. 190 (2012) (granting summary judgment in an analogous action relying on Federal Circuit precedent in Consol. TV and VI).
Plaintiff also argues that the decision of the United States District Court for the District of Columbia in Drummond Coal Co. v. Hodel, 610 F.Supp. 1489 (D.D.C.1985), and the affirming opinion of the Court of Appeals for the District of Columbia Circuit, 796 F.2d 503 (D.C.Cir.1986), confirm that the AML fee is a tax on the sale of exported coal. Pl.’s Resp. to Def.’s Mot. Summ. J. 15-16. In Drummond, the plaintiff claimed that the OSM regulations exceeded the Secretary of the Interior’s statutory authority under SMCRA “because it include[d] within the material taxed ‘excess’ moisture attributable to post-excavation rainfall or washing, which ... is not properly regarded as part of ‘coal’ ” 796 F.2d at 504. The district court ultimately concluded, and the D.C. Circuit affirmed, that “coal produced” “could reasonably be interpreted to include the entire process of extracting and selling coal,” thereby including the “excess” moisture,6 and, thus, *607the Secretary did not exceed his authority by promulgating regulations reflecting this interpretation. Drummond, 610 F.Supp. at 1497-1505; see Drummond, 796 F.2d at 507-08.
The Federal Circuit has already addressed plaintiff’s argument and distinguished the decision in Drummond from its decision in Consol. IV. The Drummond court determined whether impurities such as water were reasonably included within the statutory language “coal produced.” Consol. IV, 528 F.3d at 1348. The court was not interpreting SMCRA in light of a potential conflict with the Export Clause. Id. at 1347. The Federal Circuit noted that the Drum-mond court found the statutory language to be ambiguous. Id. at 1347-48 (citing Drummond, 796 F.2d at 505). The Drummond court did not conclude that “coal produced” included the sale of coal, but that the Secretary’s interpretation that the term included the weight of water and other impurities was reasonable. Id. at 1348. For that reason, the court gave Chevron deference to the interpretation of “coal produced” used by the Secretary in implementing the OSM regulations. See Drummond, 796 F.2d at 506-08. When faced with a possible constitutional conflict — as was the case in Consol. IV— a court must interpret an ambiguous statute so as to give it the “only reasonable construction which preserves the constitutionality of the statute.” Consol. IV, 528 F.3d at 1348. Therefore, because of the Federal Circuit’s decision in Consol. IV, plaintiffs argument that the Court follow the precedent set by the court in Drummond is unpersuasive.
Similarly, the Federal Circuit has already addressed plaintiffs argument that the OSM regulations amount to an unconstitutional tax on exported coal. Plaintiff contends that OSM has consistently imposed the AML fee “on coal when sold, rather than when extracted, and interpreted the statutory language to apply to the sale of coal,” which shows that the regulation is unconstitutional. Pl.’s Resp. to Def.’s Mot. Summ. J. 16. In Consol. V, the Court of Federal Claims determined that Consol. IV had addressed and resolved the constitutionality of both the reclamation fee statute and its implementation through OSM regulations. Consol. V, 86 Fed.Cl. at 389. On appeal, the Federal Circuit directly addressed plaintiffs argument that the OSM regulations constitute a tax on “coal sold” rather than “coal extracted” regardless of the meaning of “coal produced” in SMCRA because the OSM regulations call for the calculation of the AML fee at the time of sale. Consol. VI, 615 F.3d at 1381. The Federal Circuit concluded that the “timing of the tax ‘mitigate[s] the burden’ on manufacturers and ‘indicates no purpose to impose the tax upon ... sale.’ ” Id. at 1381-82 (quoting Liggett & Myers Tobacco Co. v. United States, 299 U.S. 383, 386, 57 S.Ct. 239, 81 L.Ed. 294 (1937) (alterations in original)). The court held that the “liability incurs at the time of extraction, and OSM merely collects the fee at the time of sale.” Id. at 1382. The Federal Circuit again utilized the doctrine of constitutional avoidance and held that the OSM regulations apply to “coal extracted” and therefore do not violate the Export Clause. Id. Thus, plaintiffs argument that the OSM regulations constitute an unconstitutional tax on exported coal fails.
Finally, plaintiff argues that Consol. VI was wrongly decided because of the Federal Circuit’s reliance on Liggett & Myers Tobacco Co., 299 U.S. 383, 57 S.Ct. 239. Pl.’s Resp. to Def.’s Mot. Summ. J. 20-22. In Liggett, a tobacco manufacturer challenged a statute that placed a tax “[u]pon all tobacco and snuff manufactured in or imported into the United States, and ... sold by the manufacturer or importer, or removed for consumption or sale.” Liggett & Myers Tobacco Co., 299 U.S. at 384, 57 S.Ct. 239 (quoting Revenue Act of 1926, Pub.L. No. 69-20, § 401, 44 Stat. 9, 88 (codified at I.R.C. § 700(a) (1934))) (internal quotation marks omitted). The Supreme Court held that the tax was on the manufacture of tobacco, and “the effect upon the purchaser was indirect and imposed no prohibited burden.” Id. at 386, 57 S.Ct. 239. The fact that the time for paying the tax was upon either sale or removal “indicated] no purpose to impose the tax upon either sale or removal.” Id. The *608Federal Circuit determined that the tax in Liggett was analogous to the AML fee. See Consol. VI, 615 F.3d at 1382. The court found that the Liggett court “did not differentiate between an organic product like tobacco that could change weight and other products that could not.” Id. The Federal Circuit “[saw] no reason to do so” in Consol. VI. Id. Plaintiffs contention that Liggett differs both doetrinally and factually from the situation presented in Consol. VI and in this case is therefore unpersuasive.
B. Plaintiff’s Takings or Illegal Exaction Claim Fails
Plaintiff argues that the “unconstitutional exaction of the [AML fee] on coal sold for export violates the Takings Clause of the Fifth Amendment of the United States Constitution, which provides, ‘nor shall private property be taken for public use without just compensation.’” Am. Compl. ¶20. Defendant contends that plaintiff abandoned its takings claim by not mentioning that claim in its response to defendant’s motion for summary judgment. Def.’s Reply to PL’s Resp. to Def.’s Mot. Summ. J. 2. However, this Court need not address the issue of waiver because plaintiffs takings claim fails on the merits.
There is no genuine dispute as to any material fact regarding plaintiffs claim that the AML fee constitutes a taking. A takings claim requires that a plaintiff identify a property “interest that has allegedly been taken by operation of [an] Act.” See Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 294, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). In this instance, plaintiffs property interest is monetary, and the alleged taking is effectuated by the AML fee. The Federal Circuit has found that it is bound by the Supreme Court’s opinions in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), in which five justices agreed that “regulatory actions requiring the payment of money are not takings.”7 Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1339 (Fed.Cir.2001) (en banc).
Commonwealth Edison Co. involved regulations that required domestic utility providers benefitting from government uranium enrichment facilities to make payments to a Uranium Enrichment Decontamination and Decommissioning Fund. Id. at 1333. The Federal Circuit held that “while a taking may occur when a specific fund of money is involved, the mere imposition of an obligation to pay money ... does not give rise to a claim under the Takings Clause of the Fifth Amendment.”8 Id. at 1340.
*609Moreover, in a different opinion, the Federal Circuit directly addressed payments alleged to be unconstitutional under the Export Clause. See U.S. Shoe Corp. v. United States, 296 F.3d 1378, 1381-84 (Fed.Cir.2002). In that ease, the plaintiff sued to recover taxes paid under the Harbor Maintenance Tax, I.R.C. §§ 4461-4462 (2000), which was levied on commercial cargo for the use of certain ports. U.S. Shoe Corp., 296 F.3d at 1381. The court found the statute violated the Export Clause, but not the Takings Clause. Id. at 1383. Taxation, the court held, is not a per se taking because money is private property that cannot be physically occupied by the government. Id. (citing United States v. Sperry Corp., 493 U.S. 52, 62 n. 9, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989)). Taxation is not a regulatory taking because “[r]egulatory actions requiring the payment of money are not takings.” Id. (quoting Commonwealth Edison Co., 271 F.3d at 1339) (internal quotation marks omitted). Accordingly, there is no genuine dispute as to any material fact regarding whether the AML fee as applied to plaintiff constitutes a taking.9
Additionally, plaintiffs claim that the AML fee amounts to an illegal exaction does not present a genuine dispute as to any material fact. An “illegal exaction” occurs when the government has “improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.” Norman v. United States, 429 F.3d 1081, 1095 (Fed.Cir.2005) (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007-08 (Ct.Cl.1967)) (internal quotation marks omitted). The Federal Circuit has declared that the AML fee does not violate the Export Clause and is therefore constitutional. See Consol. VI, 615 F.3d at 1381-82. Because the court has declared the AML fee does not violate the Constitution, and nothing suggests that the regulation is otherwise illegal, there can be no “illegal exaction” claim.
C. The Court Has Jurisdiction Over Plaintiff’s Claims
Finally, in its motion for summary judgment, defendant argues that the Court does not have jurisdiction over plaintiffs claims. Under § 1276(a)(1) of SMCRA, “[a]ny action by the Secretary promulgating national rules or regulations ... shall be subject to judicial review in the United States District Court for the District of Columbia Circuit” if a petition for review is filed “within sixty days from the date of such action.” 30 U.S.C. § 1276(a)(1). Defendant contends that, because plaintiff claims that the AML fee regulations are unlawful, the Court should follow Amerikohl Mining, Inc. v. United States, 899 F.2d 1210 (Fed.Cir.1990), and find that it lacks jurisdiction because plaintiffs claims are untimely and have been filed in the wrong court. Def.’s Mot. Summ. J. 10. In Amerikohl Mining, Inc., the Federal Circuit held that “the plain meaning of the language in section 1276(a)(1) [demonstrated] that Congress intended the District Court for the District of Columbia to be the exclusive, forum for challenging national rules and regulations promulgated under the SMCRA.” 899 F.2d at 1213. Therefore, the Federal Circuit dismissed for lack of jurisdiction. Id. at 1215.
The Federal Circuit addressed defendant’s argument in Consol. II, in which it reaffirmed its holding in Cyprus Amax Coal Co.10 In *610Consol. II, the court held that the “Export Clause provides ... coal producers with an independent self-executing cause of action that allows for Tucker Act jurisdiction in the Court of Federal Claims.” 351 F.3d at 1379. The Federal Circuit distinguished Consol. II from Amerikohl Mining, Inc. by noting that “the cause of action asserted in Amerikohl was not based on the Constitution or any federal law other than the SMCRA itself,” whereas the Consol. II court dealt with the relationship between SMCRA and the Export Clause. Id. at 1380, Accordingly, the Federal Circuit has made clear that the Court of Federal Claims has jurisdiction over plaintiffs claims. See Consol. II, 351 F.3d at 1380-81; see also Clinchfield Coal Co., 105 Fed.Cl. at 135-36, 2012 WL 1957630 at *2; Consolidation Coal Co., 104 Fed.Cl. at 194-96.
Defendant also contends that Consol. II was superseded by the intervening Supreme Court decision in United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008). Def.’s Mot. Summ. J. 10-11. The Supreme Court in Clintwood Elkhom held that a tax claim based on the Export Clause had to be filed with the Internal Revenue Service within the statute of limitations set forth in the Internal Revenue Code before being filed with the Court of Federal Claims. 553 U.S. at 4-5, 14, 128 S.Ct. 1511. Defendant argues the Court’s decision in Clintwood Elkhom “suggests that courts must look to see if claims are covered by a stricter statute of limitation” and thus implies that SMCRA’s sixty-day time limit to challenge a regulation bars plaintiff from relying upon the six-year limitation set forth in the Tucker Act. Def.’s Mot. for Summ. J. 11.
Nonetheless, the Federal Circuit found that the Court of Federal Claims has Tucker Act jurisdiction over claims alleging that the AML fee violates the Export Clause. See Consol. II, 351 F.3d at 1379. This court is bound to follow Federal Circuit precedent unless “the circuit’s precedent is expressly overruled by statute or by a subsequent Supreme Court decision.” Strickland v. United States, 423 F.3d 1335, 1338 n. 3 (Fed.Cir.2005). Because the Supreme Court did not expressly overrule Consol. II, the Court finds that binding precedent requires the conclusion that the Court of Federal Claims has jurisdiction to hear this case under the Tucker Act. See Consolidation Coal Co., 104 Fed.Cl. at 195-96.
CONCLUSION
In view of the foregoing, the Court finds that plaintiffs claims do not raise a genuine issue of any material fact, and defendant is entitled to judgment as a matter of law. Accordingly, the Court GRANTS defendant’s motion for summary judgment. The Clerk of the Court shall enter judgment in favor of defendant.
IT IS SO ORDERED.
.At the time the complaint was filed, the statute provided for "a reclamation fee of 35 cents per ton of coal produced by surface coal mining and 15 cents per ton of coal produced by underground mining or 10 per centum of the value of the coal at the mine, as determined by the Secretary, whichever is less, except that the reclamation fee for lignite coal shall be at a rate of 2 per centum of the value of the coal at the mine, or ¡0 cents per ton, whichever is less.” 30 U.S.C. § 1232(a) (2000).
. The Constitution provides that "[n]o Tax or Duty shall be laid on Articles exported from any State.” U.S. Const, art. I, § 9, cl. 5.
. Constitutional avoidance "is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).
. The Fifth Amendment provides that private property shall not "be taken for public use, without just compensation.” U.S. Const, amend. V.
. An initial stay was granted to plaintiff on October 26, 2001, after which plaintiff attempted to consolidate its case with Consolidation Coal. The motion to consolidate was denied on November 29, 2001 (docket entry 11). The case was then stayed pending the resolution of the original appeal in Consolidation Coal. A joint motion to stay the proceedings pending the final resolution of the liability issue in Consolidation Coal was granted on April 5, 2004 (docket entry 22). A subsequent motion to continue the stay was granted on May 26, 2009 (docket entry 29) with an order that the parties file a joint status report within 20 days of final resolution of the liability issue in Consolidation Coal. The parties filed the joint status report on July 5, 2011 (docket entry 30) indicating the liability issue was finally resolved.
. The original regulations implemented by OSM under SMCRA were not clear, so Drummond and at least five other Alabama companies interpreted the regulations to be similar to a state tax that allowed for "coal operators to deduct the weight of 'excess’ moisture — moisture in excess of 2.88% of the total weight of taxable coal.” Drummond, 796 F.2d at 504-05. When OSM discovered Drummond and other companies were making deductions, it proposed new regulations to clarify its position. Id. The amended regulation read, "[i]mpurities, including water, that have not been removed prior to the time of initial bona fide sale, transfer of ownership, or use by the operator shall not be deducted from the gross weight.” 30 C.F.R. § 870.12(b)(3)(i) (1982). Drummond hinged upon the interpretation of the statute’s language "coal produced.” Finding the phrase ambiguous, and not finding a contrary congressional intent within the legislative history, the D.C. Circuit agreed with the district court and deferred to the Secretary’s construction of the statutory language. Drummond, 796 F.2d at 504-05. The court found that the Secretary’s construction could be inferred from the 1982 amendment to the OSM regulations, which adopted an interpretation of the statutory language that defined "production ... to include the entire process of extracting and selling coal, complete from pit to buyer’s door.” Drummond, *607610 F.Supp. at 1497-98; see Drummond, 796 F.2d at 505.
. In Eastern Enterprises, "the Supreme Court confronted a constitutional challenge to the retroactive liability provisions of the Coal Industry Retiree Health Benefit Act of 1992, codified at 26 U.S.C. §§ 9701-9722 (the ‘Coal Act’).” Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1339 (Fed.Cir.2001) (en banc); see E. Enters., 524 U.S. at 503-04, 118 S.Ct. 2131. Five members of the court rejected the idea that an obligation to pay money amounted to a taking. The plurality opinion, written by Justice O’Con-nor and joined by three other justices, "concluded that the retroactive impact of the Coal Act as applied to [the plaintiff] resulted in an unconstitutional taking of property because it placed a 'severe, disproportionate and extremely retroactive burden on [the plaintiff].’ ” Commonwealth Edison Co., 271 F.3d at 1339 (quoting E. Enters., 524 U.S. at 538, 118 S.Ct. 2131 (plurality opinion)). Justice Kennedy, in his concurrence, disagreed that the act in that case, which required coal operators to fund future health benefits of retired employees, constituted an unconstitutional taking because it imposed a financial burden without regard to property. Id.; E. Enters., 524 U.S. at 540, 118 S.Ct. 2131 (Kennedy, J., concurring in judgment and dissenting in part). The four dissenting justices (Justices Stevens, Souter, Ginsberg, and Breyer) agreed with Justice Kennedy that the Takings Clause was not implicated by an obligation to pay a fee. Commonwealth Edison Co., 271 F.3d at 1339 (citing E. Enters., 524 U.S. at 554, 118 S.Ct. 2131 (Breyer, J., dissenting)). "Thus, five justices of the Supreme Court in Eastern Enterprises agreed that regulatory actions requiring the payment of money are not takings.” Id. The Federal Circuit agreed with "the prevailing view that [it was] obligated to follow the views of that majority” of justices. Id.; see also id. at 1339 n. 10 (collecting cases adopting the prevailing view).
. The Supreme Court held in Phillips v. Washington Legal Foundation that interest generated by an Interest on Lawyers Trust Account ("IOLTA”) "is the 'private property’ of the owner of the principal” subject to the Takings Clause of the Constitution. 524 U.S. 156, 172, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998). The Federal Circuit recognized that the case before it did not involve a similar fund, and, therefore, Phillips did not apply. See Commonwealth Edison, Co., 271 F.3d at 1338, 1340. Likewise, Phillips does not apply *609here because this case does not involve a fund similar to an IOLTA.
. Several circuits have held that the AML fee is a tax. See, e.g., United States v. Ringley, 985 F.2d 185, 187-88 (4th Cir.1993); United States v. Tri-No Enters., Inc., 819 F.2d 154, 159 (7th Cir.1987); United States v. River Coal Co., 748 F.2d 1103, 1106 (6th Cir.1984). Even if the AML fee were not a tax, the imposition of the fee would not effect a taking pursuant to Federal Circuit precedent. See Commonwealth Edison Co., 271 F.3d at 1340.
. Cyprus Amax Coal Co. dealt with a challenge to the Coal Tax, 26 U.S.C. § 4121, that did not exempt exported coal from the tax. 205 F.3d at 1371. The plaintiff alleged that the tax violated the Export Clause. Id. The Federal Circuit stated that the Tucker Act is purely jurisdictional and "on its own predicate, it does not enable a party to recover monetary damages from the United States.” Id. at 1373. The Tucker Act requires “a complementary substantive right found in another source of federal law, such as the Constitution, federal statutes, or executive regulations.” Id. This was satisfied by the Export Clause, which, "given a fair textual interpretation, ... leads to the ineluctable conclusion *610that the clause provides a cause of action with a monetary remedy.” Id. The court concluded that "a party can recover for payment of taxes under the Export Clause independent of the tax refund statute” because a cause of action based on the Export Clause is self-executing. Id. at 1374. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218287/ | OPINION AND ORDER
DAMICH, Judge:
In this complaint for military back pay and allowances, Plaintiff Thomas J. Schnable challenges the validity of his court-martial conviction and subsequent dishonorable discharge from the United States Navy. He alleges that his discharge was unlawful and void because, in the appeal of his conviction, he was denied his Sixth Amendment right to counsel of his choice and his Fifth Amendment right to due process. He seeks back pay and allowances in excess of $678,532.39 dating from his 2007 discharge, as well as costs, disbursements, and attorney’s fees.
Defendant has moved for dismissal of Plaintiffs complaint for failure of subject matter jurisdiction, pursuant to Rule 12(b)(1) *612of the Rules of the Court of Federal Claims (“RCFC”), and for failure to state a claim on which relief may be granted, pursuant to RCFC 12(b)(6), or, in the alternative, for Judgment on the Administrative Record, pursuant to RCFC 52.1.
Although in limited circumstances in the Court of Federal Claims a plaintiff may pursue a collateral attack on a military court-martial conviction, here jurisdiction does not yet properly attach because Plaintiff has failed first to exhaust all remedies available to him within the military justice system.
Accordingly, for the reasons stated below, Defendant’s motion to dismiss for lack of subject matter jurisdiction is granted.
I. Background
In September of 1998, the Naval Criminal Investigative Service (“NCIS”) initiated an investigation of Plaintiff, a Chief Petty Officer Sonar Technician, on allegations that he sexually abused his 13-year-old adopted daughter and threatened to kill his wife. Compl. ¶ 5-6. Plaintiff was placed in pretrial custody at the Navy Brig in Bangor, Washington, and was provided military trial counsel, pursuant to 10 U.S.C. § 827. Id. ¶ 7,10.
Additionally, pursuant to 10 U.S.C. § 838(b)(2) and (b)(4), Plaintiff retained civilian legal counsel, J. Byron Holcomb, and designated him as lead counsel. Id. ¶¶ 7-9.1 Plaintiff, a recent law school graduate, avers in his complaint that he “sought out the services of Holcomb in particular, because of Holcomb’s reputation as a vigorous appellate advocate.” Id. ¶ 8. Plaintiffs assigned military counsel assisted as associate counsel.
In February of 1999, Plaintiff was convicted by general court-martial on four specifications of indecent acts with a minor and one specification of communicating a threat. See United States v. Schnable, 58 M.J. 643, 645 (N-M.Ct.Crim.App.2003). He was sentenced to 20-years’ confinement, forfeiture of all pay and allowances, reduction to the lowest pay grade, and dishonorable discharge. Compl. ¶ 6. Upon his conviction, he was transferred to the Navy’s correctional facility at Mira-mar, California, in late February 1999. Id. ¶ 12.
On petition for clemency before the “convening authority” (the officer, authorized by the Uniform Code of Military Justice, who ordered the formation of the court-martial), pursuant to 10 U.S.C. § 860, Plaintiff received a reduction in confinement to no greater than 15 years, and a six-month suspension of the reduction in his pay grade (on the condition that he assign the money to his spouse for the maintenance of his adopted daughter). Id. ¶ 13.
In accordance with 10 U.S.C. § 866, Plaintiffs case was referred to the U.S. Navy-Marine Corps Court of Criminal Appeals (“NMCCA”). Id. ¶ 14. Mr. Holcomb continued to serve as lead counsel for Plaintiff, assisted, pursuant to 10 U.S.C. § 870(c), by assigned military appellate counsel, LT. Glenn Gerding, JAGC, USNR. Compl. ¶¶ 15, 16.2 In October of 2001, while his appeal was pending before the NMCCA, Plaintiff was transferred once again, from Miramar, CA, to Fort Leavenworth, Kansas. Id. ¶ 17.
In April 2003, the NMCCA affirmed his conviction and sentence, denying his appeal. Schnable, 58 M.J. 643. Plaintiff filed for certiorari to the Court of Appeals for the Armed Forces (“CAAF”), alleging that the NMCCA opinion had improperly incorporated without attribution large portions of the Government’s brief, suggesting a failure to provide an independent appellate review. Compl. ¶ 19. According to Plaintiff, his appeal to the CAAF was filed by his military counsel, but also listed Mr. Holcomb as his civilian counsel and provided contact information therefor. Id. ¶ 20. In its instant motion to dismiss, the Government advises that LT. Gerding had left active duty on September 20, 2002, prior to the decision of the NMCCA, and was not involved in any subsequent appellate action on behalf of *613Plaintiff. LT. Gerding’s successor as assigned military appellate counsel was LT. Marcus Fulton, JAGO, USN. Def.’s Mot. Dismiss at 5.
The CAAF granted Plaintiffs petition for certiorari in January 2004 and in September 2004, in light of its decision on a similar appeal in United States v. Jenkins, 60 M.J. 27 (C.A.A.F.2004), ordered that the NMCCA decision be set aside and that Plaintiffs appeal be remanded back to the NMCCA for review by a wholly new panel.3 The Administrative Record (“AR”) filed herein reflects that Mr. Holcomb was copied on the CAAF’s order granting Plaintiffs petition for certio-rari as well as on its order for remand. AR 58, 57.
According to Plaintiff, however, neither he nor Mr. Holcomb was notified of the CAAF decision to send Plaintiffs appeal back on remand to the NMCCA, even though “Holcomb had made an appearance before the Court in the matter, and his name, address and phone number were on the brief.” Compl. ¶ 22. Nor, he avers, was he or Mr. Holcomb informed of the CAAF action, by Plaintiffs assigned military appellate counsel. Id.
On October 13, 2004, the Navy JAG office sent a memo of “Instructions for Compliance” with the CAAF remand to the Chief Judge of the NMCCA, enclosing the CAAF order. The memo recites, “Copy to:”, among others, Mr. Holcomb and the accused. AR 56.
Upon remand at the NMCCA, Plaintiff was represented by a new military appellate counsel, LT. Stephen Reyes. Def.’s Mot. to Dismiss at 6 n. 8. In addition to Plaintiffs initial assignment of errors before the NMCCA, LT. Reyes filed three additional assignments of error in the NMCCA remand. See United States v. Schnable, 65 M.J. 566, 569 n. 1 (N-M.Ct.Crim.App.2006). On July 27, 2006, however, the reconstituted NMCCA panel again affirmed Plaintiffs conviction, but found “inappropriately severe” a sentence of confinement for more than 16 years, and granted an additional one-year reduction in confinement as discretionary relief “considering the lengthy processing delays during the appellate review by this court.” Id. at 574, 576.
Plaintiff complains, however, that
Following the remand, military counsel, without attempting to contact or inform, and without the authorization of the Plaintiff or Holcomb, prepared and filed a brief on the Petitioners [sic] behalf for the new NMCCA panel’s consideration. Despite the fact that he’d been designated as lead counsel by the Petitioner, Holcomb was unaware of the brief and played no role in its preparation or argument.
Compl. ¶ 23.
In addition, Plaintiff alleges that neither he nor Mr. Holcomb received a copy of the NMCCA decision on remand or had any notice or knowledge of the ruling. Id. ¶ 25.
Furthermore, Plaintiff complains that, without his or Mr. Holcomb’s knowledge, his military appellate counsel let pass the deadline within which to file a petition for certio-rari to the CAAF, thus allowing the NMCCA remand decision to become final. Id. ¶ 26.
The AR reflects that on September 13, 2006, the Navy JAG sent a letter to Plaintiff attaching a copy of the NMCCA decision on remand. AR 5. The letter, however, was addressed to him at the Navy Brig at Mira-mar, not addressed to him at Fort Leavenworth. Furthermore, although the AR further reflects that the September 13, 2006, letter was sent via “certified mail,” see AR 3, the “certificate of personal service” in the record, at AR 4, attesting that a copy of the NMCCA remand decision was “personally delivered” to Mr. Schnable, is unsigned and undated and there is no other evidence that the Navy JAG’s certified letter was ever received by Mr. Schnable.
According to Rule 19 of the CAAF Rules of Practice and Procedure for timely appeal, Plaintiff had 60 days from the earlier of the date he was notified of the NMCCA’s remand decision or the date the decision was *614mailed to hi m, after it was served upon appellate counsel of record. CAAF Rule 19(a)(a) (App.2-S); see Def.’s Mot. to Dismiss at 7 n. 10. The NMCCA decision, therefore, was deemed final on or about November 17, 2006. AR 3.
Plaintiffs discharge from the Navy became effective on April 30, 2007, upon the issuance of a Certificate of Release or Discharge from Active Duty (DD-214). Compl. ¶ 27. He alleges that when he received his discharge he assumed, without having had knowledge of the CAAF decision or the NMCCA decision on remand, that the CAAF had denied his petition for certiorari in the first place. Id. ¶ 27. He further alleges that he first learned of the CAAF decision and the NMCCA decision on remand from a fellow inmate on or about June of 2007. Id. ¶ 28. He says he immediately contacted Mr. Holcomb, who contacted the court to request a copy of the trial record (but was informed it had been lost). Id. ¶ 29. Plaintiff was released from confinement on October 16,2007. Id. ¶ 30.
Plaintiffs complaint therefore cites three causes of action: 1) that the failure to provide Plaintiff or Mr. Holcomb notice and the opportunity to participate in the NMCCA’s rehearing of his appeal violated his Sixth Amendment right to counsel of his choice; 2) that the failures further violated his Fifth Amendment right to due process of law and deprived him of the opportunity to seek cer-tiorari anew from the CAAF; and 3) that the violation of Plaintiffs constitutional and statutory right to civilian counsel of choice accordingly renders his sentence and discharge void or voidable.
Because, as he claims, his discharge was unlawful, he asserts an entitlement to back pay and allowances in an amount in excess of $678,532.39.
II. Defendant’s Motion to Dismiss
Plaintiffs Complaint was filed on July 28, 2011. In October of 2011, Defendant moved to dismiss the complaint, both for lack of jurisdiction and for failure to state a claim on which relief can be granted, or, in the alternative, for judgment on the AR.
Defendant argues foremost that Plaintiff “failed to exhaust his remedies within the military court system as to his claims, and thus this Court does not possess jurisdiction over them.” Def.’s Mot. to Dismiss at 8. Defendant further argues, aside from Plaintiffs subject matter jurisdiction insufficiency, that he fails to state a claim entitling him to relief because the NMCCA remand panel “never affirmatively rejected Mr. Schnable’s purported counsel of choice” and he was not denied due process because “Mr. Schnable still had a ‘meaningful’ opportunity to be heard by the NMCCA.” Id. In addition, the acts and omissions alleged by Mr. Schnable “do not rise to the level of ineffective assistance of counsel.” Id.
Finally, even if the court finds that Plaintiff has properly stated a claim for relief, on the facts of the AR, “Mr. Schnable and his civilian counsel either had or should have had timely notice of the NMCCA’s remand proceedings” and his counsel’s performance was not ineffective.
III. Standards of Review
In weighing a motion to dismiss for lack of subject-matter jurisdiction, the Court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in [the] plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995).
It is well-established, however, that subject-matter jurisdiction is “a threshold question that must be resolved ... before proceeding to the merits” of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). When this court’s jurisdiction is challenged, the plaintiff must demonstrate jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988).
*615Even where the court has jurisdiction over the complaint, it may still be subject to dismissal unless it states a claim that is “plausible on its face,” that is, with sufficient factual content from which a court may draw “the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). As with a motion to dismiss for lack of jurisdiction, the court must accept the factual allegations to be true, but is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. A complaint fails where the factual allegations do not “plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937; see also Kam-Almaz v. United States, 682 F.3d 1364, 1367-68 (Fed.Cir.2012).
On a motion for judgment on the administrative record, as Defendant argues in the alternative, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial on a “paper record, allowing fact-finding by the trial court.” Bannum v. United States, 404 F.3d 1346, 1356 (Fed.Cir.2005). Unlike summary judgment standards, genuine issues of material fact do not preclude a judgment on the administrative record. See id. at 1355-56. Questions of fact are resolved by reference to the administrative record. Id. at 1356.
IV. Discussion
The jurisdiction of the Court of Federal Claims to grant relief against the United States is limited to the extent that the United States has waived its sovereign immunity. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Such waiver must be unequivocally expressed, not merely implied. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). The principal source of the jurisdiction of the Court of Federal Claims is found in the Tucker Act, which waives sovereign immunity for claims, not sounding in tort, that are founded upon the Constitution, a federal statute or regulation, or an express or implied contract. 28 U.S.C. § 1491(a)(1).
The Tucker Act, however, merely opens the Court’s jurisdictional window. It “does not create any substantive right enforceable against the United States for money damages.” Testan, 424 U.S. at 398, 96 S.Ct. 948. A plaintiff must therefore properly assert the requisite “money-mandating” constitutional, statutory (or regulatory), or contractual violation. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed.Cir.1994) (en banc).
It is well-established that “judgments by courts-martial, although not subject to direct review by federal civil courts, may nevertheless be subject to narrow collateral attack in such courts on constitutional grounds if the action is otherwise within a court’s jurisdiction.” Bowling v. United States, 713 F.2d 1558, 1560 (Fed.Cir.1983); see also Augenblick v. United States, 180 Ct.Cl. 131, 141, 377 F.2d 586 (1967) (“There has, however, been an unbroken continuity, going back to the 19th century, in the position that a void court-martial conviction can be attacked through a suit for back-pay in this court”), rev’d on other grounds, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).
Similarly, in Matias v. United States, 19 Cl.Ct. 635 (1990), the plaintiff sought correction of his military record and back pay by voiding his court-martial conviction on constitutional grounds. The trial court, citing Bowling, denied the Government’s motion to dismiss for lack of subject matter jurisdiction, but cautioned that a plaintiff “must, however, allege significant defects in the military justice system that rise to a constitutional level before this Court can undertake a collateral review of those proceedings.” Id. at 638. The Court of Appeals for the Federal Circuit affirmed the trial court’s determination of subject matter jurisdiction. The plaintiffs claims, it held, “fall squarely within the Claims Court’s Tucker Act jurisdiction.” Matias v. United States, 923 F.2d 821, 823 (Fed.Cir.1990).
Here, however, the Government acknowledges this Court’s jurisdiction over challenges to convictions under the Uniform Code for Military Justice (UCMJ), but avers that “[s]uch challenges, however, are limited in scope and may not be brought until all *616appeals authorized by the UCMJ have been exhausted.” Mot. to Dismiss at 10. The Government states that Plaintiff has yet to present his constitutional claims to any military tribunal. Having failed to exhaust his remedies within the military justice system, according to the Government, Mi’. Schnable “may not pursue in this Court a collateral attack upon his court-martial convictions.” Id. at 10.
As an initial matter, it is critical to recognize that civilian courts owe “extreme deference” to judgments of the military court system. Madsen v. United States, 48 Fed.Cl. 464, 468 (2000). “Because of the military’s overriding interest in maintaining order within its own house, federal courts have properly avoided intervention and interference with respect to disciplinary actions taken by commanders or by military courts.” Williams v. Secretary of the Navy, 787 F.2d 552, 561 (Fed.Cir.1986); see also Schlesinger v. Councilman, 420 U.S. 738, 753, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) (acknowledging “the deference that should be accorded the judgments of the carefully designed military justice system established by Congress”).
Accordingly, therefore, civilian courts are loath to undertake review prematurely of a collateral attack on a court-martial conviction. Thus there has also been developed a clear rule regarding exhaustion of military remedies. “The general rule requires that, before seeking to collaterally attack his court martial conviction in the civilian courts, [a plaintiff] must have exhausted all remedies available to him within the military.” Williams, 787 F.2d at 558. “The purpose of the exhaustion doctrine is to allow the military courts the opportunity to review a question and decide it using their particular expertise.” Cooper v. Marsh, 807 F.2d 988, 990 (Fed.Cir.1986). In this regard, the “exhaustion doctrine” advances the values both of efficiency and comity. “The policy underlying the exhaustion rule is twofold. The unused military procedure may be completely dispositive of the alleged defect, thus making intervention by the federal court wholly needless. If the military procedure proves to be adequate, potential friction between the federal and military systems is thus avoided.” Small v. Commanding General, 320 F.Supp. 1044, 1045 (S.D.Cal.1970) (citing Gusik v. Schilder, 340 U.S. 128, 131-132, 71 S.Ct. 149, 95 L.Ed. 146 (1950)), aff'd, 448 F.2d 1397 (9th Cir.1971). “The concern underlying the exhaustion requirement is not whether a federal court may review the constitutionality of a military policy or regulation, but when it may do so.” Williams, 787 F.2d at 560.
The Federal Circuit’s decision in Cooper explains that a plaintiff “must have given the military courts an opportunity to pass upon the claims he now asserts as bases for attacking his court-martial.” Cooper, 807 F.2d at 991. Even where a plaintiff has properly exhausted his military remedies and the claims are of significant constitutional defects, “it is not the role of the civil courts to simply reweigh the evidence.” Matias, 19 Cl.Ct. at 638. “This court does not have the authority to retry the facts of a court-martial proceeding nor to act as a reviewing court of the decision of the court-martial tribunal.” Flute v. United States, 210 Ct.Cl. 34, 38, 535 F.2d 624 (1976). Rather, the “limited function” of the Court of Federal Claims is “to determine whether the military tribunal gave fair consideration to each of [the plaintiffs] claims. Matias, 923 F.2d at 826.
Notwithstanding the gravity of the constitutional errors that Plaintiff asserts, they are nonetheless before this Court without any prior review within the military justice system. Plaintiff argues, however, citing Martinez v. United States, 333 F.3d 1295 (Fed.Cir.2003) (en banc) (“Martinez 2003”), that the accrual of his cause of action for back pay as of the time of discharge obviates any exhaustion requirement prior to suit in this court. In Martinez 2003, the Federal Circuit first re-affirmed that, in a military discharge case, “the plaintiff’s cause of action for back pay accrues at the time of the plaintiffs discharge.” Id. at 1303. “The service member therefore has the right to sue immediately upon discharge for the funds improperly being withheld.” Id. The military plaintiffs action in the meantime for correction of military records, by virtue of its being a permissive administrative remedy, thus “does not prevent the accrual of the plaintiffs cause of action, nor does it toll the *617statute of limitations pending the exhaustion of that administrative remedy.” Id. at 1304. Plaintiff reasons that, if he is entitled, per Martinez 2003, to “sue immediately” for back pay, which is the focus of his current action, he is not bound by any exhaustion requirement to have raised his claims before a military tribunal.
In effect, then, Plaintiff would stretch the import of Martinez 2003, addressing the accrual of a cause of action for statute of limitations purposes, to entirely upend the long line of eases establishing the exhaustion requirement applicable to civilian court collateral review of a court-martial conviction. This Court finds no basis for such a reading. Not only should Martinez 2003 be limited to its acerual-of-eause-of-action context, there is no language in Martinez 2008, even in dicta, that the Federal Circuit was intending, even by implication, much less explicitly, to reverse its prior holdings in Williams and Cooper, for example. Plaintiffs rendering of Martinez 2003 would, as well, make a nullity of the prescription in Matias — that the “limited function” of the Court of Federal Claims is to determine whether the military forum gave “fair consideration” to a plaintiffs constitutional claims — if Plaintiff were enabled to avoid that forum altogether. Indeed, in Martinez v. United States, 914 F.2d 1486 (Fed.Cir.1990) (“Martinez 1990 ”), the Federal Circuit held plainly, “Absent a showing of good cause and prejudice, an appellant’s failure to raise his constitutional claims in the military court system bars him from raising them in federal court.” Id. at 1488.
The Government notes that Mr. Schnable was still in military custody when he says he first learned in June 2007 of the CAAF decision to send his case back to the NMCCA on remand and of the NMCCA’s subsequent affirmance of his conviction. The Government further notes that Plaintiff could have filed an extraordinary writ, such as a writ of coram nobis,4 to the NMCCA raising the Fifth and Sixth Amendment claims he alleges here. Even after his military incar-eeration ended, he has not been impeded from filing such a writ at the NMCCA. See United States v. Denedo, 556 U.S. 904, 913, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009).
Accordingly, the Court finds that, until Plaintiff has exhausted his remedies within the military justice system, his constitutional complaints here fail for lack of subject matter jurisdiction.
While it may appear that Plaintiff makes a compelling complaint of the violation of his Sixth Amendment right to counsel of choice in the appeal of his conviction and sentence before the NMCCA on remand, this Court should necessarily defer to the military justice system to weigh that constitutional complaint in the first instance. Therefore, the Government’s motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) is granted and the Court need not address the Government’s motion to dismiss for failure to state a claim or for judgment on the administrative record.
The Clerk of Court is hereby directed to dismiss Plaintiffs complaint.
. Plaintiffs Complaint cites Mr. Holcomb’s name as "Byron T. Holcomb,” although the April 23, 2003, decision of the NMCCA, as reported at 58 M.J. 643 (N-M.Ct.Crim.App.2003), cites Plaintiff's principal counsel as J. Byron Holcomb.
. Plaintiff’s Complaint cites LT. Gerding’s first name as "Douglas,” although the April 23, 2003, decision of the NMCCA cites it as Glenn.
. Plaintiff's complaint cites the date of his petition for certiorari and the CAAF's remand as June 29, 2004.
. Coram nobis is "[a] writ of error directed to a court for review of its own judgment and predicated on alleged errors of fact.” Black’s Law Dictionary 362 (8th ed. 2004). Although the writ was originally employed merely for correction of factual errors, it is now understood to encompass constitutional challenges to court-martial convictions. Ross v. United States, 43 M.J. 770, 772 (N-M.Ct.Crim.App.1995). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218288/ | OPINION AND ORDER DENYING PLAINTIFF’S THIRD MOTION FOR CLASS CERTIFICATION
WILLIAMS, Judge.
In this action Plaintiff seeks a refund of communications excise taxes. This matter comes before the Court on Plaintiffs third motion to certify a class of similarly situated taxpayers. Because the Court lacks jurisdiction over the tax refund claims of putative class members, and because RadioShack fails to satisfy the requirements of Rule 23 of the Rules of the United States Court of Federal Claims (“RCFC”), Plaintiffs motion is denied.
Background1
Section 4251(a) of the Internal Revenue Code imposes an excise tax on amounts paid for communication services, including long-distance calls that are charged on the basis of both distance and duration. Carriers collect the tax from consumers, pay the tax to the Internal Revenue Service (“IRS”), and file a corresponding tax return.
In the 1990s, carriers stopped using distance to price long-distance calls and began charging per-minute rates. The IRS continued to assess the excise tax during this period, a practice that several courts eventually held was improper. See, e.g., Fortis, Inc. v. United States, 447 F.3d 190 (2d Cir.2006); Reese Bros., Inc. v. United States, 447 F.3d 229 (3d Cir.2006); Am. Bankers Ins. Group v. United States, 408 F.3d 1328 (11th Cir. 2005); OfficeMax, Inc. v. United States, 428 F.3d 583 (6th Cir.2005); Nat’l R.R. Passenger Corp. v. United States, 431 F.3d 374 (D.C.Cir.2005).
In June 2006, the IRS issued Notice 2006-50, 2006-1 C.B. 1141, admitting that the IRS had improperly collected excise taxes and instructed earners to cease collecting and paying the tax paid on time-only long-distance service billed after July 31, 2006. Notice 2006-50 authorized taxpayers to request a credit or refund on their 2006 federal income tax returns for excise taxes paid on services billed after February 28, 2003, and before August 1, 2006. On January 29, 2007, the IRS issued Notice 2007-11, 2007-1 C.B. 405, which supplemented Notice 2006-50 by clarifying the conditions that individual tax*620payers were required to meet and answering questions that arose after Notice 2006-50 was issued.
Under the IRS’s procedures, taxpayers could request and obtain a refund on the 2006 income tax return or file an amended tax return for 2006. For individuals who were not required to file a 2006 income tax return, the IRS created Form 1040EZ-T for requesting a refund. Under this process, which will remain in effect until July 27, 2012, to request a credit or refund for the actual amount of excise tax paid, taxpayers must complete Form 8913, Credit for Federal Telephone Excise Tax Paid, and attach that form to their 2006 Form 1040 Series federal income tax return or to an amended tax return for that year.
The excise taxes at issue had been collected by telephone companies and paid directly to the IRS, leaving many taxpayers without the documentation necessary to claim a refund. The IRS therefore created a “safe harbor” for these taxpayers. To receive the safe-harbor standard amount, a taxpayer must demonstrate that he paid all taxes billed by the service provider during the relevant period, and that he had not received, requested, or filed a claim for the credit or refund. The standard amount for individuals ranges from $30 to $60, with an interest component governed by 26 U.S.C. § 6611. Businesses and other entities can also present minimal documentation to claim a safe-harbor refund based on an estimate of the taxes actually paid during the refund period. To calculate the refund amount, businesses must submit two monthly telephone bills from 2006 (rather than a bill for each month during the entire relevant period).
The IRS implemented an outreach strategy to notify taxpayers of this administrative refund mechanism. As part of this strategy, the IRS issued at least 22 news releases and eight internet publications entitled “Tax Tips,” and disseminated refund information via more than 4,000 articles and interviews in magazines and various media outlets, eollec-tively estimated to reach over 88 million readers. The IRS also launched a website that explains how to obtain a refund, which millions of taxpayers have viewed. A similar explanation was incorporated into the “What’s New” section of the 2007 Instructions for IRS Tax Forms 1040, 1040A, and 1040EZ. The IRS also partnered with software developers to ensure that popular tax preparation products, such as TurboTax and TaxCut, included information regarding the refund. Finally, the IRS collaborated with 65 national partners and more than 300 community-based coalitions to raise awareness of the refund. By April 26, 2012, these efforts had generated refunds of approximately $4.33 billion to roughly 100,168,030 million individual taxpayers, and of over $1.45 billion to 809,354 businesses. Approximately $7.21 billion in erroneously collected excise taxes, however, has not been refunded.2
On Api’il 5, 2012, the IRS released Announcement 2012-16, 2012-18 I.R.B. 876, establishing a cutoff date of July 27, 2012, for requesting refunds. The Announcement states:
The Internal Revenue Service reminds and encourages taxpayers to timely request a Telephone Excise Tax Refund if they have not already done so. Since the Service stopped collecting the tax on long distance service in 2006, it has administered a simplified' procedure for taxpayers to request a refund of excise taxes paid under section 4251 on nontaxable services that were billed after February 28, 2003, and before August 1, 2006. Taxpayers have until July 27, 2012, to request refunds of the telephone excise tax.
Based on recent litigation, the validity of the notice that outlines the procedures under which a taxpayer may request a refund of telephone excise tax has been called into question. While the litigation continues, in the interest of providing certainty to taxpayers, if the taxpayer chooses to request a refund, the Internal Revenue Service will process and honor requests that are made *621on or before July 27, 2012. Taxpayers should make their requests on the appropriate 2006 income tax return.
The Service will not process refund requests submitted after July 27,2012.3
On April 5, 2012, the Government released Announcement 2012-16, 2012-18 I.R.B., announcing that “[t]he Service will not process refund requests submitted after July 27, 2012.” Soon after, on April 10, 2012, the United States District Court for the District of Columbia held that the IRS failed to comply with the Administrative Procedure Act’s notice-and-comment procedures and prospectively vacated Notice 2006-60. In Re Long-Distance Telephone Service Federal Excise Tax Refund Litig., 863 F.Supp.2d 138 (D.D.C.2012). On May 1, 2012, this Court held a status conference to discuss the impact of those developments on this case.
Discussion
In its third motion for class certification, RadioShack moves the Court to certify the following class:
Each individual or business that: (1) paid the Federal communications excise tax under section 4251 (“Communications Excise Tax” or “Tax”) with respect to charges for toll telephone services that did not vary based on distance and charges for services that Defendant otherwise determined were not taxable (referred to herein collectively as “Non-Taxable Telephone Services”); (2) did not receive a refund of the entire amount of such tax, plus interest on such tax, from the Internal Revenue Service (“IRS”); and (3) satisfies the jurisdictional requirements for pursuing a tax refund and overpayment interest in the Court of Federal Claims at the time that individual or business opts-in to the Class.
Pl.’s Mot. 1 (footnotes omitted).4 RadioSh-ack concedes that class members for whom it seeks certification have not all filed, refund claims with the IRS. Pl.’s Am. Compl. ¶ 11. Plaintiff represents that notice can be provided to potential class members by including a notice in the telephone bills issued to current telephone users. Pl.’s Mot. 28-29. Plaintiff suggests that “Defendant has vast resources, including billions of dollars of erroneously collected Communication Excise Taxes, that can be used to fund any administrative effort.” Id. at 28.
At oral argument on this motion, RadioSh-ack moved the Court, in the alternative, to certify a class only with respect to claims for unpaid statutory interest on communication excise tax refunds. Specifically, Plaintiff proposed the following class:
Each taxpayer that (1) paid the Federal Communications Excise Tax under section 4251 with respect to charges for toll telephone services that did not vary based on distance and charges for services that Defendant otherwise determined were not taxable; (2) is entitled to statutory interest with respect to the overpayment of such tax pursuant to section 6611(a); and (3) has not yet received the full amount of such statutory interest from the IRS.
Pl.’s Supplemental Br. in Supp. of Pl.’s Mot. (“Pl.’s Supplemental Br.”) 25-26.
This Court has jurisdiction to consider tax refund suits under 28 U.S.C. § 1491(a)(1). Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301-02 (Fed.Cir.2004); Shore v. United States, 9 F.3d 1524, 1525 (Fed.Cir.1993); Hindi v. United States, 64 Fed.Cl. 71, 74-76 (2005), aff'd, 446 F.3d 1307 (Fed.Cir.2006). However, this Court’s jurisdiction is limited to “the extent to which the United States has waived its sovereign immunity.” Inter-Coastal Xpress, Inc. v. United States, 296 F.3d 1357, 1365-66 (Fed.Cir.2002) (quoting Myers v. United States, 50 Fed.Cl. 674, 682 (2001)) (internal quotation marks omitted). With respect to tax refund suits, the United States has waived its sovereign immunity only as *622articulated in the Internal Revenue Code. See United States v. Williams, 514 U.S. 527, 532-35, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995); United States v. Dalm, 494 U.S. 596, 610, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990); Flora v. United States, 362 U.S. 145, 157-58, 176-77, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960).
Section 7422(a) of the Internal Revenue Code bars a taxpayer from filing a suit for refund unless a claim for refund has been duly filed with the IRS in accordance with § 6511. Computervision Corp. v. United States, 445 F.3d 1355, 1363-64 (Fed.Cir.2006); Chicago Milwaukee Corp. v. United States, 40 F.3d 373, 374 (Fed.Cir.1994), cert. den., 525 U.S. 932, 119 S.Ct. 342, 142 L.Ed.2d 282 (1998) (stating that Section 7422(a) waives sovereign immunity with respect to tax refund suits “provided the taxpayer has previously filed a qualifying administrative refund claim” with the IRS).
Specifically, to maintain a tax refund suit in this Court, a taxpayer must satisfy the requirements of 26 U.S.C. § 7422(a), which provides:
No suit prior to filing claim for refund. No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.
The Supreme Court explained in United States v. Clintwood Elkhom Mining Company, that it “[could not] imagine what language could more clearly state that taxpayers seeking refunds of unlawfully assessed taxes must comply with the Internal Revenue Code’s refund scheme before bringing suit, including the requirement to file a timely administrative claim.” 553 U.S. 1, 7, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008). Section 7422(a) unambiguously indicates that the administrative exhaustion requirement is a necessary prerequisite for every taxpayer who brings a tax refund suit in this Court, and applies even where the taxpayer was not required to file a tax return. See RadioShack, 566 F.3d at 1361-62 (finding that the limits set forth in 26 U.S.C. §§ 6511 and 7422 applied to the communications excise tax because the carrier was required to file a tax return — even if individual telephone-service customers were not).
A taxpayer must file a tax refund claim with the IRS either: (1) three years from the time the return was filed; or (2) two years from the time the tax was paid (whichever period expires later); or (3) if the taxpayer did not file a tax return within two years from the time the tax was paid. 26 U.S.C. § 6511. In addition, 26 U.S.C. § 6532(a)(1) expressly precludes a taxpayer from “beginning” a refund suit before the statutorily established time has expired for the Secretary to decide that administrative refund claim. Section 6532(a)(1) provides:
No suit or proceeding under section 74.22(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.
(emphasis added).
In sum, under the clear language of the Internal Revenue Code, this Court has jurisdiction over a tax refund suit only if the taxpayer has exhausted administrative remedies before bringing suit.
RadioShack Has Failed to Establish that this Court Has Jurisdiction over the Refund Claims of Putative Class Members
Ignoring the mandatory pre-lawsuit exhaustion requirements in the Internal Revenue Code, Plaintiff seeks to certify a class of taxpayers that “satisfies the jurisdictional requirements for pursuing a tax refund and overpayment interest in the Court of Federal Claims at the time that individual or busi*623ness opts-in to the Class.” Pl.’s Mot. 1 (emphasis added). Plaintiff maintains that the Court has the authority to certify a proposed class whose members do not yet satisfy the jurisdictional exhaustion requirements on the theory that neither the filing of a class action complaint nor the certification of the class would “begin” a refund suit for a yet unnamed taxpayer plaintiff within the meaning of § 6532(a)(1). Thus, in Plaintiffs view, the Court would not exercise jurisdiction over the tax refund claims of putative class members until those members affirmatively opt in to the class, at which point they will have both begun their suit for purposes of § 6532(a)(1) and satisfied the jurisdictional prerequisites for a tax refund suit.
Plaintiff argues that Bright v. United States, 603 F.3d 1273 (Fed.Cir.2010) stands for the proposition that “absent class members begin their action in the opt-in class context on the date on which the absent class member opts-in to the class.” Pl.’s Reply to Def.’s Supplemental Br. (“Pl.’s Reply”) 3. The narrow question before the Bright court was whether the timely filing of a class action complaint tolled the statute of limitations for absent class members while the Court of Federal Claims considered certification of the proposed class. The Bright court answered this question in the affirmative. Id. at 1283. Plaintiff contends:
As noted in Bright, while the Court in American Pipe [& Const. Corp. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) ] held that the filing of a class action complaint “commences” the tolling of the period of limitations for absent class members, the Court did not hold that the filing of the class action complaint “commences” a suit for absent class members for purposes of applying the jurisdictional requirements.
Pl.’s Reply 7. Plaintiff reads Bright too broadly. Bright did not establish an overarching rule that class members need not satisfy threshold jurisdictional requirements applicable to any and all types of cases until they opt into the suit. In Bright, a Fifth Amendment taking suit, there was no administrative exhaustion requirement. Thus, Bright's tolling of the statute of limitations in a class action taking suit does nothing to whittle away the absolute, mandatory administrative exhaustion requirement for each and every tax refund action. Bright does not touch § 7422(a)’s “no suit prior to filing claim for refund” mandate.
The fact that the Court of Federal Claims has adopted an opt-in class action mechanism does not alter § 7422(a)’s mandatory exhaustion requirement, which is an express limitation on the waiver of sovereign immunity in tax refund suits. Rule 23, a procedural mechanism, does not modify the limitations of the Court’s jurisdiction over tax refund actions. The Court “cannot, through its acknowledged rule-making power, expand its jurisdiction beyond the limits prescribed by Congress.” Bright, 603 F.3d at 1283 (quoting Rolls-Royce, Ltd. v. United States, 364 F.2d 415, 419 (1966)) (internal quotation mark omitted).
Plaintiffs effort to have jurisdiction be determined at the time an individual class member opts into the class would fly in the face of both the Internal Revenue Code’s exhaustion requirement and the fundamental precept that jurisdiction is determined at the time a suit is filed. The waiver of sovereign immunity expressed in the Internal Revenue Code, as in other statutes, must be strictly construed. Fed. Nat’l Mortg. Ass’n v. United States, 469 F.3d 968, 972 (Fed.Cir.2006). The Internal Revenue Code imposes jurisdictional prerequisites, which must be met by each individual taxpayer plaintiff before he files suit — not before he opts into a lawsuit that met jurisdictional prerequisites because another taxpayer with a different claim satisfied the exhaustion requirements. Simply stated, RadioShack’s administrative tax refund claim is unique to RadioShaek and cannot form the jurisdictional predicate to enable another taxpayer, who has not yet filed an administrative claim, to join in RadioSh-ack’s suit. As the Claims Court reiterated in Saunooke v. United States, “strict adherence to sovereign immunity mandates that this court cannot gain subject matter jurisdiction over a tax refund action until each member of the proposed class has paid his entire assessed deficiency and filed a timely claim *624for refund pursuant to 26 U.S.C. § 7422(a).” 8 Cl.Ct. 327, 329-30 (1985).
Several federal courts have refused to certify classes in tax refund suits under Federal Rule of Civil Procedure 23 where the named plaintiffs did not show that all putative class members had met the jurisdictional prerequisites for tax refund suits at the time of the filing the complaint. See, e.g., Oatman v. Dept. of Treasury-Internal Revenue Service, 34 F.3d 787, 789 (9th Cir.1994) (“The district court lacks jurisdiction over claims for refunds pressed by any potential class members who have not satisfied the procedural requirements of 26 U.S.C. §§ 6532 and 7422.”) (citation omitted); Lewis v. Sandler, 498 F.2d 395, 399-400 (4th Cir.1974) (denying class certification in part because neither the named plaintiff nor any class member alleged that he had filed an administrative refund claim before filing suit). A plaintiff taxpayer must file an administrative refund claim before filing suit in federal court. Bartley v. United States, 123 F.3d 466, 472 (7th Cir.1997); Heisler v. United States, 463 F.2d 375, 375 (9th Cir.1972); Appoloni v. United States, 219 F.R.D. 116, 119 (W.D.Mich.2003) (“A taxpayer whose claim had neither been denied nor pending for at least six months at the time suit was filed would not be entitled to file suit ... [and] could not properly be included in the class....”); McConnell v. United States, 295 F.Supp. 605, 606 (E.D.Tenn.1969). These cases are grounded in the principle that potential plaintiffs seeking tax refunds cannot be included in a class action unless they have exhausted the administrative process prior to the filing of the lawsuit.
RadioShack’s Complaint Does Not Constitute an Administrative Refund Claim
In a curious alternative argument, Ra-dioShack submits that its complaint in this action constitutes an informal refund claim for the yet-to-be-defined class sufficient to fulfill the jurisdictional prerequisites for all members of the putative class, and that Notice 2006-50 signifies the IRS’s allowance of such refund claims.
A timely administrative refund claim that suffers from “purely formal defects” will satisfy jurisdictional prerequisites, at least for purposes of timeliness, so long as the claim “fairly apprises the IRS of the basis for the claim” and its defects are later remedied by amendment. Computervision Corp., 445 F.3d at 1364. However, a class representative’s filing of a class action complaint in federal court clearly does not satisfy the jurisdictional administrative exhaustion requirements for all putative class members. See In re Long-Distance Telephone Service Federal Excise Tax Refund Litig., 539 F.Supp.2d 281, 292 (D.D.C.2008), aff'd in relevant part sub nom, Cohen v. United States, 578 F.3d 1 (D.C.Cir.2009) (“[the] suggestion that the court treat [a] civil complaint as a substitute for a properly filed administrative refund claim deserves little comment beyond the observation that it is meritless”); Disabled American Veterans v. United States, 650 F.2d 1178, 1179 (Ct.Cl.1981) (“Filing a petition is not a satisfactory claim for refund.”).
As such, the Court summarily rejects Ra-dioShack’s contention that its complaint constitutes an informal refund claim sufficient to satisfy the jurisdictional prerequisites for all potential class members.
RadioShack’s Proposed Class Does Not Meet the Criteria for Class Certification
Additionally, RadioShaek has not established the requisites for class action suits in this Court. Rule 23 provides:
(a) Prerequisites. One or more members of a class may sue as representative parties on behalf of all members only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. A class action may be maintained if RCFC 23(a) is satisfied and if: *625(2) the United States has acted or refused to act on grounds generally applicable to the class; and
(S) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by class members; (C) [not used]; and (D) the likely difficulties in managing a class action.
The requirements of Rule 23 can be grouped into five categories: (i) numerosity, ie., the class is so large that joinder is impracticable; (ii) commonality, ie., the presence and predominance of common questions of law or fact and the treatment received by the class members at the hands of the Government; (iii) typicality, ie., that the named parties’ claims are typical of the class; (iv) adequacy, ie., fair representation; and (v) superiority, ie., that a class action is the fairest and most efficient way to resolve the controversy. See, e.g., Bigelow Trust v. United States, 97 Fed.Cl. 674, 676 (2011); Barnes v. United States, 68 Fed.Cl. 492, 494 (2005). “These requirements are in the conjunctive; hence, the failure to satisfy any one of them is fatal to a class certification.” Bigelow Trust, 97 Fed.Cl. at 676.
Numerosity
Rule 23’s numerosity requirement is met where “the class is so numerous that joinder of all members is impracticable.” RCFC 23(a)(1). Speculation as to the number of potential class members involved is not sufficient to satisfy the requirements of Rule 23(a). Fisher v. United States, 69 Fed.Cl. 193, 198 (2006); Edge v. C. Tech Collections, Inc., 203 F.R.D. 85, 89 (E.D.N.Y.2001) (citing Demarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968)) (“Where the plaintiffs assertion of numerosity is pure speculation or bare allegations, the motion for class certification fails.”); Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989); Grimes v. Pitney Bowes, Inc., 100 F.R.D. 265, 269-70 (N.D.Ga.1983) (“[M]ere allegations of numer-osity are insufficient to meet this prerequisite.”).
Here, RadioShaek has not met its burden of demonstrating that the prospective class would be so numerous that it would be impracticable to join all members. RadioSh-ack has not shown that this Court has jurisdiction over a single member of the purported class beyond RadioShaek. RadioShaek can only speculate as to the number of “future” class members that will one day file a refund claim, fulfill the jurisdictional requirement of § 7422(a), and opt into the class. As such, RadioShaek has failed to demonstrate numerosity, which, standing alone, is sufficient to deny class certification.
The Court Denies Certification of a Class Seeking Only Unpaid Statutory Interest
In the alternative, in the event this Court concludes it lacks jurisdiction over claims of purported class members who have not filed administrative refund claims, RadioShaek moves to certify a class of taxpayers who do not seek refunds in this lawsuit and instead only seek interest on the tax they paid. Plaintiff characterizes this class as follows:
Each taxpayer that (1) paid the Federal Communications Excise Tax under section 4251 with respect to charges for toll telephone services that did not vary based on distance and charges for services that Defendant otherwise determined were not taxable; (2) is entitled to statutory interest with respect to the overpayment of such tax pursuant to section 6611(a); and (3) has not yet received the full amount of such statutory interest from the IRS.
Pl.’s Supplemental Br. 25. Plaintiff does not limit this proposed class to taxpayers who received a refund through the administrative process, stating “[w]hen notice is effectuated, class members may also request the Commissioner to pay the Communications Excise Tax refund to which the members are entitled.” Id. at 28.
There are several insuperable obstacles to granting certification of a class seek*626ing only interest here. First, as a matter of law, in order to demonstrate entitlement to interest under the Internal Revenue Code, a taxpayer must prove, and the IRS or a court must determine, that there has been an overpayment of tax. 26 U.S.C. § 6611 (2011). A plaintiff cannot simply allege that he made an overpayment and is owed interest on that alleged overpayment. Under § 6611(a), “[i]nterest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at the overpayment rate established under section 6621.” An overpayment is “any payment in excess of that which is properly due,” and a taxpayer must establish that there was an overpayment. See General Elec. Co. & Subsidiaries v. United States, 384 F.3d 1307, 1312 (Fed.Cir.2004) (citation omitted); Cherbanaeff v. United States, 77 Fed.Cl. 490, 500 (2007) (“[t]he payment of interest is triggered by the ‘overpayment’ by a taxpayer.”). The Court can entertain claims for statutory interest only when it has already been determined that a plaintiff has a valid underlying tax refund claim — which also requires a showing that the plaintiff actually paid the tax at issue. Cherbanaeff, 77 Fed.Cl. at 500 (“This ... court may exercise jurisdiction over claims solely for statutory interest where it has already been established that there was an ‘overpayment’ by the taxpayer.”) (citing Brown & Williamson Ltd. v. United States, 231 Ct.Cl. 413, 688 F.2d 747 (1982)).
There is a jurisdictional barrier to Plaintiffs “interest-only” claim. In order to demonstrate an overpayment in this forum, taxpayers must first file administrative claims for this Court to have jurisdiction to entertain their judicial claims for a refund. A putative class cannot invoke the jurisdiction of this Court to recover only interest without exhausting the mandatory administrative refund process required for a determination that there has been an “overpayment” that warrants interest. Section 7422(a)’s mandate, “... no suit prior to filing a claim for refund ...” applies equally to a lawsuit for interest on an overpayment authorized in § 6611(a).
RadioShack concedes that this Court has declined to exercise jurisdiction over a taxpayer’s claim solely for statutory interest in cases where there was no prior determination that an overpayment occurred. Pl.’s Supplemental Br. 27. Instead, RadioShack argues that Notice 2006-50 constitutes a concession by the Commissioner that an overpayment has occurred. Plaintiffs argument fails because Notice 2006-50 is not a determination that a party is entitled to a refund due to an overpayment. The Notice itself states that the “Commissioner agrees to credit or refund the amounts paid for nontaxable service if the taxpayer requests the credit or refund in the manner prescribed in this notice.” IRS Notice 2006-50, 2006-25 I.R.B. 1141 § 5(a) (emphasis added). Notice 2006-50 is merely an invitation for individual taxpayers to file a claim for a refund. Cf. Rosenberg v. United States, 72 Fed.Cl. 387, 392 (2006), aff'd, 223 Fed.Appx. 985 (Fed.Cir.2007) (dismissing plaintiffs claim that IRS could have waived the jurisdictional requirements of 26 U.S.C. § 7422(a) by publishing Notice 2006-50). The Internal Revenue Code requires taxpayers to file an administrative refund claim before filing suit in court — regardless of whether the IRS publishes an Internal Revenue Bulletin. The issuance of this generic notice is not a determination that any individual taxpayer actually paid the communications excise tax.
RadioShack also argues that the Commissioner’s act of scheduling an overassessment constitutes an official allowance of refund claims. Pl.’s Supplemental Br. 19. Scheduling an overassessment is the accounting mechanism that the IRS uses to adjust the amount of tax that should have been imposed, and it is independent of any actual taxpayer’s payments. See General Instrument Corp. v. United States, 33 Fed.Cl. 4 (1995). Importantly, the scheduling of an overassessment does not remove the statutory requirement that a taxpayer prove that the tax was actually paid. The burden remains on each plaintiff to prove a specific overpayment of tax. See United States v. Wurts, 303 U.S. 414, 417-18, 58 S.Ct. 637, 82 L.Ed. 932 (1938) (explaining that the signature of the Commissioner on a schedule of overassessment does not finally establish a claimant’s right to a refund and does not *627preclude further investigation and consideration of the refund claim).
In any event, because Plaintiff has not identified a single putative class member who has demonstrated an overpayment of tax and who desires to file a lawsuit to recover only the interest on the tax, class certification is not warranted.
Conclusion
RadioShaek’s Third Motion for Class Certification is DENIED. The parties shall file a joint status report on or before July 17, 2012, apprising the Court of proposed further proceedings in this litigation.
. This background is derived from Plaintiff’s amended complaint, the motion papers, and pri- or decisions issued during this litigation. See RadioShack Corp. v. United States, 566 F.3d 1358 (Fed.Cir.2009); RadioShack Corp. v. United States, No. 06-28T, 2009 WL 514065 (Fed.Cl. Feb. 27, 2009) (unpub.); RadioShack Corp. v. United States, 82 Fed.Cl. 155 (2008). It should not be construed as findings of fact.
. Plaintiff alleges that $13 billion of communications excise tax was erroneously collected. Pl.’s Mot. for Class Certification ("Pl.’s Mot.”) 5. As of April 26, 2012, the Government has refunded a total of $5,781,128,482.90, leaving $7,218,871,518.10 not refunded. Def.’s Status Report (May 1, 2012).
. After the District Court for the District of Columbia vacated Notice 2006-50, the IRS opted to honor the July 27, 2012 refund request deadline announced in Announcement 2012-16, 2012-18 Internal Revenue Bulletin. Tr. 8-9 (May 1, 2012).
. The Court denied Plaintiff's previous motions for class certification while it adjudicated Defendant’s motion to dismiss Plaintiffs 1996 claim as time-barred and the Federal Circuit considered that issue on appeal. See RadioShack Corp., 82 Fed.Cl. at 155, aff'd, 566 F.3d at 1358. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218289/ | OPINION AND ORDER1
LETTOW, Judge.
Ms. Marilyn Davis seeks review of a decision entered by the special master on March 20, 2012, concerning attorneys’ fees and costs in her vaccine ease. Ms. Davis had presented a petition for compensation alleging that she developed neuromyelitis optica (“NMO”) as a result of an influenza vaccination. The special master denied her claim for compensation, finding that she failed to provide a persuasive theory of how the vaccine could have triggered the onset of her NMO. Petitioner sought review in this court which affirmed the denial of entitlement to compensation, concluding that several errors in the proceedings before the special master were harmless. Ms. Davis then appealed to the Federal Circuit, which also affirmed.
After her defeat in the Federal Circuit, Ms. Davis asked the special master to award her attorneys’ fees and costs pursuant to 42 U.S.C. § 300aa-15(e)(l). The special master made an award but declined to grant the bulk of the fees and costs that she sought. Specifically, he denied all fees and costs associated with her appeal to the Federal Circuit, ruling that the appeal lacked a reasonable basis. He also found that counsel spent an inordinate amount of time in handling the motion for review to this court and accordingly reduced the award for that work.
Ms. Davis requests that this court set aside the special master’s decision as an abuse of his discretion and award her the amount she originally sought. The government opposes Ms. Davis’s motion and asks the court to affirm the special master’s decision.
*630BACKGROUND AND PROCEDURAL HISTORY
A. The Special Master’s Entitlement Decision
The background of this case has been described at length in a prior opinion. See Davis v. Secretary of Health & Human Servs. (“Davis III”), 94 Fed.Cl. 53, 58-61 (2010), aff'd, Davis v. Secretary of Health & Human Servs. (“Davis IV”), 420 Fed.Appx. 973 (Fed.Cir.2011) (per curiam) (Fed.Cir. R. 36). Briefly, Ms. Davis received an influenza vaccine in December of 2006. Within a month, she began exhibiting symptoms ranging from lower back pain to paraplegia. Her treating physician eventually diagnosed her with NMO,2 but he was unable to discern its etiology. Ms. Davis filed a petition for compensation in June 2007. Although the government did not contest that Ms. Davis suffered from NMO, it challenged her assertion that the vaccine was the cause of this injury.
A hearing was held on September 15, 2009 before the special master. Dr. J. Griffith Steel testified on behalf of Ms. Davis. He opined that the influenza vaccine damaged the lining of the blood vessels, which permitted the protein aquaporin-4 to pass through the blood-brain barrier. Tr. 68:3-25, 121:5-20 (Sept. 15, 2009). This, in turn, triggered an immune response from the body which resulted in damage to the myelin. See Tr. 20:24 to 21:10, 22:19-25, 68:14-21 (Sept. 15, 2009). The government’s expert, Dr. Arthur Safran, opinioned that no connection existed between Ms. Davis’s vaccination and her NMO. He had found no medical literature discussing such a correlation, and he also pointed to alternative causes which he believed could better explain petitioner’s NMO. See Tr. 137:3-8 (Sept. 15, 2009).
The special master rejected Dr. Steel’s hypothesis, finding that “Ms. Davis has not established, by a preponderance of the evidence, the reliability of the assertion that the flu vaccine can damage” the lining of the blood vessels. Davis v. Secretary of Health & Human Servs. (“Davis II”), No. 07-451V, 2010 WL 1444056, at *8 (Fed.Cl.Spec.Mstr. Mar. 16, 2010), aff'd, 94 Fed.Cl. 53, aff'd, 420 Fed.Appx. 973. While Dr. Steel had referred to several medical articles relating to this subject, none of them directly supported the proposition that the influenza vaccine could damage blood vessels. Id. The special master concluded that Ms. Davis had failed to satisfy the first prong of Althen and so was not entitled to compensation. Id. at *15.3
B. Ms. Davis’s Motion for Review and Subsequent Appeal
Ms. Davis filed a motion for review with this court on April 15, 2010. She contended that the special master had applied too exacting a standard in assessing Dr. Steel’s theory and that the evidentiary record supported finding that each of the Althen prongs for causation had been satisfied. See Pet’r’s Mem. in Support of Mot. for Review of the Spec. Mstr.’s Decision at 15-20, Apr. 15, 2010, EOF No. 73. Among other things, she argued that the special master had raised her burden of proof by requiring that Dr. Steel’s hypothesis be generally accepted in the medical community. Id. at 17-18. A hearing was held on May 26, 2010, during which Ms. Davis was represented by Ms. Sylvia Chin-Caplan and Ms. Christina M. Ciampolillo.
This court affirmed the special master’s decision in an opinion issued July 12, 2010. See Davis III, 94 Fed.Cl. 53.4 The court *631concluded that the special master had “relied on the dearth of medical literature supportive or dismissive of Dr. Steel’s hypothesis to bolster his conclusion that Ms. Davis had not met her burden under Althen.” Id. at 68. The court was unwilling to discount Dr. Steel’s theory, but it nonetheless upheld the special master’s determination on the ground that “medical science has not yet advanced sufficiently far to conclude that [Dr. Steel’s] conceptual approach to causation can now be said to be established by a preponderance of the evidence.” Id.
Petitioner appealed from this judgment to the Court of Appeals for the Federal Circuit. In her brief, she focused particularly on prong one of Althen and claimed that she had satisfied the requirements of that prong by providing (1) “a biologically plausible mechanism,” (2) “circumstantial evidence contained in the medical records,” and (3) “case reports and supporting statements in the scientific literature.” Brief for Petitioner-Appellant (“Appellant’s Br.”) at 31, Davis IV, 420 Fed.Appx. 973. Ms. Davis averred that this court “requir[ed] literature directly supportive of Dr. Steel’s theory” and thus “elevated the standard of proof to an unattainable level.” Id. at 21.
The Court of Appeals summarily affirmed this court’s decision, citing Fed. Cir. R. 36.5 Davis IV, 420 Fed.Appx. 973. The clerk of the Federal Circuit entered judgment against Ms. Davis and taxed the government’s costs to her under Fed. R.App. 39.6 See Notice of Entry of Judgment, May 12, 2011, ECF No. 82.
C. The Special Master’s Decision on Attorney’s Fees and Costs
After the Federal Circuit affirmed the denial of entitlement, Ms. Davis moved to the last stage of the litigation, namely, attorneys’ fees and costs. Under the Vaccine Act, even if a petitioner does not obtain compensation for her injury, a special master may grant her attorneys’ fees and costs if he “determines that the petition was brought in good faith and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa-15(e)(l). Ms. Davis had already received an award of interim attorneys’ fees and costs for the expenses she incurred in presenting her original petition before the special master. See Davis v. Secretary of Health & Human Servs., No. 07-451V, 2010 WL 1252737 (Fed. Cl.Spec.Mstr. Mar. 10, 2010) (“Davis I”). She sought an additional $76,189.79 to pay for the attorneys’ fees and costs involved in (1) her motion for review before this court, (2) her appeal to the Federal Circuit, and (3) her fee request to the special master. See Pet’r’s Appl. for Final Att’ys’ Fees & Costs, Oct. 24, 2011, ECF No. 84; Pet’r’s Supplemental Appl. for Final Att’ys’ Fees, Nov. 17, 2011, ECF No. 89; Pet’r’s Second Supplemental Appl. for Final Att’ys’ Fees, Jan. 27, 2012, ECF No. 94; see also Davis v. Secretary of Health & Human Servs., No. 07-451V, 2012 WL 1357501, at *5 (Fed.Cl.Spec.Mstr. Mar. 20, 2012) (“Davis V”). The government opposed her requested award of fees on two main grounds. See Resp’t’s Opp’n to Pet’r’s Final Appl. for Att’ys’ Fees & Costs, Nov. 3, 2011, ECF No. 86. First, it claimed that the number of hours was excessive and unreasonable. Id. at 1-2. Second, it argued that Ms. Davis did not have a reasonable basis for appealing her case to the Federal Circuit. Id. at 5.
The special master awarded Ms. Davis $20,679.00, less than thirty percent of the amount she had requested. See Davis V, 2012 WL 1357501, at *16. He stated four reasons for significantly reducing the fees awarded to Ms. Davis. First, he found that the time spent drafting the motion for review (45 hours) was unwarranted since only seven pages of the document were “new work.” Id. *632at *5-6. Second, he regarded the time spent by the lead attorney in preparing for oral argument as slightly excessive. Id. at *6. Third, he determined that, given the relative simplicity of the ease, there was no need for a second attorney to be present at oral argument before this court. Id. at *6-8. Fourth, and most significantly, the special master denied all fees and costs attributable to the appeal to the Federal Circuit. Id. at *11-14. He decided that Ms. Davis’s appeal lacked a reasonable basis, and thus she was not entitled to recover her fees and expenses for the appeal under 42 U.S.C. § 300aa-15(e). In explaining his rationale for this finding, the special master emphasized petitioner’s failure to cite in her appellate brief Moberly ex rel. Moberly v. Secretary of Health & Human Servs., 592 F.3d 1315 (Fed.Cir.2010), a decision bearing on the evidence required to show a biological mechanism for injury. See Davis V, 2012 WL 1357501, at *1-3, *11-12. The special master regarded Moberly as essentially foreclosing Ms. Davis’s argument on appeal. Id. at *11. The only way for petitioner’s challenge to escape from Moberly’s holding, he reasoned, would be if she could distinguish her circumstances from the facts of that case. See id. Because Ms. Davis never cited Moberly in her brief to the Federal Circuit, despite repeated references to it by the special master, this court, and the government, see id.,7 in the special master’s view, “Ms. Davis did not present a tenable argument in her appeal,” id.
Apart from Ms. Davis’s failure to address Moberly in her appellate briefing, the special master based his finding on three other considerations. See Davis V, 2012 WL 1357501, at *12 n. 7. First, the government had warned Ms. Davis that it might contest her claim for attorneys’ fees because of her neglect of Moberly. See id. at *3 (quoting Appellee’s Br. at 7 n.4); see also id. at *2 (quoting Resp’t’s Resp. to Pet’r’s Mot. for Review, May 17, 2010, ECF No. 76, at 3 n.4). Second, the costs of the appeal were taxed to petitioner. Id. at *12 n. 7. And third, the Federal Circuit had affirmed this court’s decision without an opinion, per Fed. Cir. R. 36. Id. at *12.
Prescient that this court might be asked to review his decision, the special master provided an alternative holding of what petitioner’s reasonable attorneys’ fees would have been for the appeal. Davis V, 2012 WL 1357501, at *14. In terms of brief writing, he noted that significant portions of Ms. Davis’s appellate briefs were virtually identical to the law firm’s prior submissions. Id. at *14-15. The special master found it difficult to determine a reasonable fee for the “new work” due to the “limited amount of information provided in the attorneys’ time-sheets.” Id. at *14. Nonetheless, he concluded that a reasonable amount of fees for counsel’s work at the Federal Circuit would be $27,606.65, id. at *15, encompassing fees not only for her lawyers’ brief writing, but also for time spent “on matters preliminary to writing the initial brief, on developing the joint appendix with the Seeretary[’s counsel], on presenting supplemental authority, on preparing for oral argument, and on concluding the case after the Federal Circuit’s opinion.” Id.
The special master’s alternative holding did not include any award of Ms. Davis’s costs incurred in pursuing her appeal before the Federal Circuit. Davis V, 2012 WL 1357501, at *16. Noting that the Federal Circuit’s entry of judgment had taxed costs to petitioner, the special master reasoned that “an award of costs to Ms. Davis ... would undermine (if not directly contradict) the Federal Circuit’s order.” Id.
On April 19, 2012, Ms. Davis filed a motion for review of the fee decision, contesting the special master’s reductions. The government has urged the court to affirm the special master’s award of attorney’s fees as a *633reasonable exercise of his discretion. The court held a hearing on petitioner’s motion for review on June 7, 2012, and the case is now ready for disposition.
STANDARD OF REVIEW
The Vaccine Act authorizes this court to review decisions by special masters in vaccine cases and to “set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). The precise standard to be applied varies depending on the nature of the decision under review. “Fact findings are reviewed ... under the arbitrary and capricious standard; legal questions under the ‘not in accordance with law’ standard; and discretionary rulings under the abuse of discretion standard.” Caves v. Secretary of Dep’t of Health & Human Servs., 100 Fed.Cl. 119, 131 (2011) (omission in original) (quoting Munn v. Secretary of Health & Human Servs., 970 F.2d 863, 870 n. 10 (Fed.Cir.1992)), aff'd, 463 Fed.Appx. 932 (Fed.Cir.2012) (per curiam) (Fed.Cir. R. 36); see also Hazlehurst v. Secretary of Health & Human Servs., 604 F.3d 1343, 1348-49 (Fed.Cir.2010).
Here, Ms. Davis specifically challenges the special master’s determinations that (1) she lacked a reasonable basis for her appeal to the Federal Circuit and (2) the number of hours billed was unreasonable. Both of these findings are matters entrusted to the discretion of the special master. See McKellar v. Secretary of Health & Human Servs., 101 Fed.Cl. 297, 305 (2011) (“[W]e are normally obliged to defer to the special master’s discretionary findings that there was a reasonable basis behind the petition.” (citing Saxton ex rel. Saxton v. Secretary of Health & Human Servs., 3 F.3d 1517, 1520 (Fed.Cir.1993))); Hall v. Secretary of Health & Human Servs., 640 F.3d 1351, 1356 (Fed.Cir.2011) (“The determination of the amount of reasonable attorneys’ fees is within the special master’s discretion.” (quoting Saxton, 3 F.3d at 1520)). To prevail, Ms. Davis must show that the special master abused his discretion in making these determinations.
According to the general standards set out by the Federal Circuit in other contexts, this court will find an abuse of discretion only where the special master’s decision “(1) is clearly unreasonable, arbitrary, or'fanciful; (2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on which the [special master] could rationally base [his] decision.” Ninestar Tech. Co. v. International Trade Comm’n, 667 F.3d 1373, 1379 (Fed.Cir.2012) (quoting Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1415 (Fed.Cir.1997)); see also Sabella v. Secretary of Health & Human Servs., 86 Fed.Cl. 201, 204 (2009) (“Under the abuse of discretion standard, this court can only reverse for an error in interpreting law, or exercise of judgment on clearly erroneous findings of material fact, or irrational judgment in weighing relevant factors.” (quoting Plavin v. Secretary of Health & Human Servs., 40 Fed.Cl. 609, 622 (1998))).
Generally, “[i]f the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.” Hall, 640 F.3d at 1354 (alteration in original) (quoting Hines ex rel. Sevier v. Secretary of Health & Human Servs., 940 F.2d 1518, 1528 (Fed.Cir.1991)). Nevertheless, this deferential standard of review “is not a rubber stamp.” Porter v. Secretary of Health & Human Servs., 663 F.3d 1242, 1256 (Fed.Cir.2011) (O’Malley, J., concurring in part and dissenting in part). The court can and should intervene “when the special master has failed to adequately develop the record, failed to consider facts critical to the case, failed to give adequate consideration to a viable medical theory, or otherwise misapplied the law.” Snyder ex rel. Snyder v. Secretary of Health & Human Servs., 88 Fed.Cl. 706, 718 (2009).
ANALYSIS
In adopting the Vaccine Act, Congress sought to “establish a [f]ederal ‘no-fault’ compensation program under which awards can be made to vaccine-injured persons quickly, *634easily, and with certainty and generosity.” H.R.Rep. No. 99-908, at 3 (2d Sess. 1986), reprinted in 1986 U.S.C.C.AN. 6344, 6344. In keeping with this objective, the Vaccine Program employs a liberal fee-shifting scheme. A prevailing petitioner is automatically entitled to “reasonable attorneys’ fees” and “other costs.” 42 U.S.C. § 300aa-15(e)(1)(A), (B). Even if a petitioner fails to carry his or her burden of proof and does not establish entitlement, “the special master ... may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master ... determines that the petition was brought in good faith and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa-15(e)(l).
Ms. Davis bears the burden of demonstrating that she had a reasonable basis for her claim. McKellar, 101 Fed.Cl. at 305. “The presence of a reasonable basis is an objective consideration determined by the totality of the circumstances.” Id. at 303. She also must demonstrate that the number of hours billed by her attorneys was reasonable. Sabella, 86 Fed.Cl. at 211 (citing, e.g., Hensley v. Eckerharb, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The general rule-of-thumb here is that “[hjours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Morse v. Secretary of Health & Human Servs., 93 Fed.Cl. 780, 790 (2010) (quoting Saxton, 3 F.3d at 1521).
A. The Basis for Ms. Davis’s Appeal
The special master denied Ms. Davis’s request for fees and costs pertaining to her counsel’s work before the Federal Circuit, on the ground that her appeal lacked a reasonable basis. He identified four factors that led to this conclusion. Davis V, 2012 WL 1357501, at *12 n. 7. Chief among them was the petitioner’s failure to address Moberly in her appellate brief. Id. at *11.
The special master treated Moberly as unambiguously and dispositively rejecting the arguments made by Ms. Davis on appeal. Davis V, 2012 WL 1357501, at *11. He interpreted the crux of her appeal to be that the entitlement decision “wrongly imposed a burden above the standard of biologic plausibility.” Id. He regarded this avenue of appeal as cut off by Moberly, which held that “proof of a ‘plausible’ or ‘possible’ causal link between the vaccine and the injury ... is not the statutory standard.” Id. (quoting Moberly, 592 F.3d at 1322). Because Ms. Davis did not attempt to distinguish her case from Moberly, the special master found that “Ms. Davis effectively surrendered any argument based upon a legal error” and had no reasonable basis to appeal this court’s decision. Id. at *12.
The problem with the special master’s analysis is that he drew a direct comparison between incommensurate elements of Ms. Davis’s burden of proof. Ms. Davis discussed biological plausibility in the context of the first Althen prong. Appellant’s Br. at 25 (“Althen’s prong 1 is satisfied by showing that it is biologically plausible that a specific vaccine can cause a specific injury.”). In contrast, Moberly criticized the use of the “plausibility” standard in the broader context of proving causation-in-faet, taking into account all three Althen prongs. See Moberly, 592 F.3d at 1322. That opinion did not say, as was suggested by the special master, that petitioner’s proposed medical theory by itself must meet a particular standard of proof. Rather, Moberly applied the “traditional ‘more likely than not’ standard” to the overall question of whether the vaccine caused the injury in the particular ease of the petitioner at bar. Id.
In actuality, the standard of proof for the first Althen prong standing alone is still an unsettled matter in the vaccine jurisprudence. A judge of this court recently reversed a special master for his mode of applying the more-likely-than-not standard to one but not all of the Althen prongs collectively. Doe 93 v. Secretary of Health & Human Servs., 98 Fed.Cl. 553, 566 (2011) (“[T]he [sjpecial [mjaster impermissibly elevated the burden of proof on the requirement that [petitioner provide a medical theory causally linking the flu vaccine to [the injury].”). The court ruled that the first Althen prong mandated only “a biologically plausible medical theory.” Id. (citing, e.g., Andreu ex *635rel. Andreu v. Secretary of Health & Human Servs., 569 F.3d 1367, 1375 (Fed.Cir.2009)). The court in Doe 93 found that, by elevating the petitioner’s evidentiary burden “beyond the realm of biological plausibility into the realm of legal probability,” the special master had impermissibly raised the standard of proof for the medical theory. Id. at 567; see also Doe/11 ex rel. Estate of Doe/11 v. Secretary of Health & Human Servs., 83 Fed.Cl. 157, 173-174 (2008). Contrastingly, however, another judge on this court has upheld a special master’s decision that appeared to address prong one of Althen on a discrete basis. See Caves, 100 Fed.Cl. at 144 (“[T]he special master properly concluded that petitioner was required to satisfy the first prong of the Althen test by a preponderance of the evidence.”); see also id. at 144 n. 18 (specifically declining to adopt the reasoning of Doe 93).
This court does not propose to take a position on this dispute in addressing attorneys’ fees for Ms. Davis. Instead, these eases are cited merely to demonstrate that Moberly has not definitively resolved the standard of proof for the first Althen prong, standing alone. Rather, on its face Moberly reaffirms that the petitioner’s overall burden is one of a preponderance of the evidence8— a proposition never denied by Ms. Davis. See, e.g., Appellant’s Br. at 19 (“The standard of proof required by the [Vaccine] Act is simple preponderance of evidence.” (quoting Bunting v. Secretary of Health & Human Servs., 931 F.2d 867, 873 (Fed.Cir.1991))). Consequently, petitioner’s appeal was not foreclosed by Moberly, and her failure to cite to the case cannot be grounds for determining that her appeal lacked a reasonable basis.9
This is not to suggest that neglecting Mob-erly was a prudent decision on the part of Ms. Davis’s counsel. Even though that case did not render Ms. Davis’s appeal without a reasonable basis, it certainly had a bearing on a number of the issues raised in her appellate brief. The relevance of Moberly is reinforced by the fact that each of the three judges on the appellate panel inquired about that precedent during oral argument, with one even going so far as to ask why Ms. Davis failed to mention it in her brief. Davis IV Oral Argument at 5:17 to 10:01. Ms. Davis would have been well-served by addressing Moberly, perhaps putting that decision in context by comparing it to Andreu, 569 F.3d 1367, and Capizzano, 440 F.3d 1317. Nevertheless, although this omission may evidence poor practice, it does not indicate that the appeal generally lacked a reasonable basis.
The special master also took into account the government’s notice that the United States might contest petitioner’s claim for attorneys’ fees. See Davis V, 2012 WL 1357501, at *3 (quoting Appellee’s Br. at 7 n.4); see also id. at *2 (quoting Resp’t’s Resp. to Pet’r’s Mot. for Review, May 17, 2010, ECF No. 76, at 7 n.4). This warning related to Ms. Davis’s failure to cite to Mob-erly. Appellee’s Br. at 3 n.4 (“Petitioner’s failure to cite or distinguish Moberly in this appeal raises a legitimate question about its fi’ivolousness.”). The government shares the special master’s expansive reading of Moberly and believes that it precluded petitioner’s appeal. Nonetheless, because Moberly did *636not dispositively address the issues raised in the appeal, the government’s warning was unwarranted, and Ms. Davis did not act unreasonably in failing to heed its admonition.10
The special master also inferred that the appeal lacked a reasonable basis because the costs of the appeal were taxed to Ms. Davis. See Davis V, 2012 WL 1357501, at *12 n. 7. He implicitly assumed that the Federal Circuit would not have taxed costs to Ms. Davis if her case had a reasonable basis. This conjecture is unwarranted, however. The per curiam decision disposing of the appeal did not allocate costs one way or the other. The summary disposition citing Fed. Cir. R. 36 was silent on the subject. Rather, the Federal Circuit clerk’s entry of judgment provided that Ms. Davis would be responsible for the government’s costs. See Notice of Entry of Judgment at 1, May 12, 2011, EOF No. 82 (“Costs are taxed against the Appellants) in favor of the Appellee(s) under Rule 39.”). In doing so, the clerk’s office appears to have merely followed Fed. R.App. P. 39(a)(2). This rule states that, “if a judgment is affirmed, costs are taxed against the appellant” barring a court order to the contrary. The special master acted unreasonably in reading an implicit censure in this simple application of the appellate rules of procedure by the Federal Circuit clerk’s office.
Lastly, the special master noted that the Federal Circuit issued its decision pursuant to Fed. Cir. R. 36. Davis V, 2012 WL 1357501, at *12. Under this rule, the court may enter a judgment without an opinion when “an opinion would have no precedential value” and the decision below was not erroneous. See Fed. Cir. R. 36(a), (e). The special master, drawing on Sparks v. Eastman Kodak Co., 230 F.3d 1344 (Fed.Cir. 2000), considered that the use of Rule 36 was further proof that the appeal lacked a reasonable basis. Davis V, 2012 WL 1357501, at *12. In Sparks, the successful appellee sought sanctions against the appellant for filing an allegedly frivolous appeal. Sparks, 230 F.3d at 1345. The appellee argued that such sanctions were warranted because the Federal Circuit had affirmed the lower court’s decision via Rule 36. Id. Although the Federal Circuit commented that the underlying case had been “an easy one to decide,” it nonetheless denied the request for sanctions. Id.
The special master concluded that, because Ms. Davis’s appeal was also dispatched by Rule 36, it too must have been “an easy one” for the Federal Circuit to decide. Davis V, 2012 WL 1357501, at *12. From this, he inferred that her case probably lacked a reasonable basis. Id. This reasoning is not supported by Sparks, however. That opinion did not say that an appeal dispatched via Rule 36 was necessarily frivolous. See 230 F.3d at 1345 (“This case, like some others we hear, was an easy one to decide.” (emphasis added)). To the contrary, Sparks cautions lower courts from reading too much into a Rule 36 decision. It rejected the appellee’s argument that an affirmance without opinion always meant that the appeal was frivolous; according to the court, the only reliable inference from a Rule 36 disposition *637was that [t]he trial court’s explanation for its decision was clear and sound and no useful purpose would have been served by our writing an opinion.” Id. Taken as a whole, the Sparks decision discourages automatically equating Rule 36 with the absence of a reasonable basis.11
These flaws in the special master’s reasoning demonstrate that he abused his discretion in finding that Ms. Davis lacked a reasonable basis for her appeal. “[Bjeeause the special master’s decision was not in accordance with law, [this] court [is] permitted to review the evidence anew and come to its own conclusion.” Althen, 418 F.3d at 1281 (citing 42 U.S.C. § 300aa-12(e)(2)(B)). Given the sufficiency of the record below and the narrow scope of the inquiry, the court is well situated to spare both parties further litigation by making its own finding.
In assessing whether Ms. Davis had a reasonable basis for her appeal, the court gives weight to the outcome of Calise v. Secretary of Health & Human Servs., No. 08-865V, 2011 WL 1230155 (Fed.Cl.Spec.Mstr. Mar. 14, 2011).12 The facts of Calise bear a striking resemblance to petitioner’s entitlement claims. Like Ms. Davis, Ms. Calise was stricken with NMO shortly after receiving the influenza vaccine. Calise, 2011 WL 1230155, at *1. She sought compensation from the Vaccine Program and hired the same law firm to represent her as Ms. Davis. Ms. Calise even retained the same expert witness, Dr. Steel, to address how the vaccination could have triggered her NMO. Id. Yet, in contrast to the outcome of Ms. Davis’s ease, the special master in Calise found that the petitioner had established causation and was entitled to compensation. Id. at *28.
There is nothing inherently improper in the disparate outcomes of these two eases, of course. A decision by one special master is not binding on another special master, see Hanlon v. Secretary of Health & Human Servs., 40 Fed.Cl. 625, 630 (1998), aff'd, 191 F.3d 1344 (Fed.Cir.1999), and there are salient differences between the two eases.13 Nevertheless, the decision in Calise demonstrates that Ms. Davis’s underlying entitlement claim was reasonable and that, factually, it retained that reasonableness throughout the appellate process. Calise dealt with the same vaccine, the same injury, the same expert, and even the same counsel. If another special master found causation-in-fact under these circumstances, it was not outlandish for Ms. Davis to think that the Federal Circuit might reach a similar conclusion and reverse this court’s decision. The divergent outcome in Calise, coupled with the factual arguments made in petitioner’s appellate brief, demonstrate that Ms. Davis had a reasonable basis to appeal the denial of entitlement to compensation.
B. The Special Master’s Other Reductions
1. Reduced hours for brief uniting, preparing for oral argument, and second counsel.
The special master declined to award attorneys’ fees for 32.3 hours spent by Ms. Davis’s counsel in preparing for and arguing the motion for review. A special master is permitted and even expected to examine a law firm’s time sheets and root out *638“hours that are excessive, redundant, or otherwise unnecessary” so that they may be “excluded from an award.” Carrington v. Secretary of Health & Human Servs., 85 Fed.Cl. 319, 323 (2008) (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933) (internal quotation marks omitted). In evaluating the requested attorneys’ fees, the special master can rely upon his past experiences with the vaccine program to determine whether the time expended on a particular task is justified. See Saxton, 3 F.3d at 1521 (“[The special master’s] past experience is a relevant factor and should be taken into account.”). He is also empowered to deny fees and costs for additional counsel if, in his estimation, the case does not warrant their involvement. See Hines ex rel. Sevier v. Secretary of Health & Human Servs., 22 Cl.Ct. 750, 755 (1991) (“While petitioner points to the ‘complex nature of this case,’ nowhere does she articulate ... why it was necessary for three members of [the law firm] to be present at that hearing.”); see also Valdes v. Secretary of Health & Human Servs., 89 Fed.Cl. 415, 425 (2009); Sabella, 86 Fed.Cl. at 213-15.
Here, the special master provided lucid explanations for his reductions. First, he deducted 20 hours from the 45 hours billed for drafting the motion for review. See Davis V, 2012 WL 1357501, at *5. The special master reviewed the twenty-page motion and found that seven pages were freshly drafted. Id. He then awarded compensation for the time it would take a reasonable lawyer to complete the task of preparing the motion: 15 hours to draft the new material, 5 hours to edit the previous thirteen, and an additional 5 hours for paralegal activities such as creating tables and cite-ehecking the new portion of the brief. Id. Because the special master took into account the time taken to integrate prior arguments with newly framed contentions, and did not focus solely on “new material,” the court accepts the special master’s reckoning.
Second, the special master awarded fees for 14.2 hours spent by Ms. Chin-Caplan in preparing for the hearing on the motion for review, rather than the 17.2 hours sought by petitioner. Davis V, 2012 WL 1357501, at *6. He regarded the time spent by Ms. Chin-Caplan as excessive, given that Ms. Chin-Caplan was the trial attorney and also one of the primary drafters of the motion. Id. The special master awarded fees for her preparations while traveling (4.7 hours) and on the morning of the hearing (1.5 hours) because she had little else to do during this time. Id. Indeed, other activities probably would have been a counterproductive distraction for her at that time. He also granted fees for a full day of preparing prior to her departure to Washington, D.C. (8 hours). Id.
Lastly, the special master denied all fees and costs associated with Ms. Ciampolillo’s presence at the hearing. He commented that Ms. Chin-Caplan was capable of arguing the motion for review by herself, as she had done in a number of prior eases. Davis V, 2012 WL 1357501, at *7 (citing Hibbard v. Secretary of Health & Human Servs., 100 Fed.Cl. 742 (2011); Hennessey v. Secretary of Health & Human Servs., 91 Fed.Cl. 126 (2010)). He further remarked that there was nothing especially demanding about the case, citing as metrics the number of experts, the duration of the hearing, the number of opposing counsel, and the quantity of medical articles submitted. Id. at *7-8. Given the “routine” nature of the case, he ruled that Ms. Ciampolillo’s presence was unnecessary.
Despite the fact that the court found Ms. Davis’s entitlement case to be anything but routine, given the rapidly emerging biological research results, the court finds no evidence that the special master abused his discretion in making these reductions. He provided specific explanations for why he considered certain hours to be unnecessary and how he reflected those reductions in his final award. Indeed, other courts have approved of the techniques he employed in arriving at a final fee amount figure. See e.g., Hines, 22 Cl.Ct. at 755 (denying fees for superfluous attorneys attending a hearing). While the court might quibble with some of the numbers derived by. the special master, his figures are certainly within the range of reasonableness, particularly considering that he is permitted to draw upon his own experience with the Vaccine Program.
*639Moreover, Ms. Davis has not alleged any particular error in the special master’s reasoning. In fact, her motion for review does not contest the specific deductions imposed by the special master. Instead, petitioner simply expounds on the policy goals of the Vaccine Program and asseverates that every hour expended on the case was reasonable and necessary. Pet’r’s Mot. for Review at 15-17. These generic statements cannot substitute for a factual showing of how the special master allegedly abused his discretion in docking 32.3 hours from the time billed by petitioner’s counsel. Nor does the court, in its own examination of the decision on attorneys’ fees, perceive any error in the special master’s determination. The court thus affirms these reductions.
2. Alternate holding on fees for the appeal to the Federal Circuit.
Apparently aware that this court might review and reverse his ruling that Ms. Davis lacked a reasonable basis for her appeal to the Federal Circuit from the denial of entitlement, the special master provided an alternate holding, i.e., if petitioner did have a reasonable basis, she would be entitled to only $27,606.65 for counsel’s work during the appeal. Davis V, 2012 WL 1357501, at *15. A trier of fact manifestly has discretion in awarding attorneys’ fees, and two recent Supreme Court cases help demarcate the bounds of that discretion. In Fox v. Vice, — U.S. -, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011), the Court emphasized the flexibility to be accorded trial courts in assessing attorneys’ fees. It cautioned appellate courts against requiring trial courts to tabulate fees with the precision of “green-eyeshade accountants.” Id. at 2216. In applying a fee-shifting statute, the trial court should seek “to do rough justice, not to achieve auditing perfection.” Id. Thus, for example, “trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Id.
The Supreme Court nevertheless noted that “the trial court must apply the correct standard, and the appeals court must make sure that has occurred.” Fox, 131 S.Ct. at 2216 (emphasis added). In adding this caveat, the Supreme Court cited approvingly to a case it had decided the previous year, Perdue v. Kenny A. ex rel. Winn, — U.S. -, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). That case stressed that “the [trial] judge’s discretion is not unlimited” in assessing attorneys’ fees. Perdue, 130 S.Ct. at 1676. “It is essential that the judge provide a reasonably specific explanation for all aspects of a fee determination.... Unless such an explanation is given, adequate appellate review is not feasible.” Id.; cf. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Taken together, Fox and Perdue give considerable latitude to a trier of fact in calculating a specific figure for attorneys’ fees, so long as he or she provides a sufficient and lucid explanation of how the amount was derived.
In addition to these Supreme Court opinions, the court is also guided by Wasson ex rel. Wasson v. Secretary of Health & Human Servs., 24 Cl.Ct. 482 (1991), a case which dealt with attorneys’ fees in the unique context of the Vaccine Program. There, the petitioner sought review of a reduced fee award ordered by the special master. Id. at 483-84. In examining the decision on attorneys’ fees, the court found that the special master “presents only a conclusion” without “an appropriate description of the relevant experience and the reasoning that she used” to reach it. Id. at 486. Consequently, the court had little choice but to remand the fee award because “the conelusory nature of her statement ... makes it impossible for this court to evaluate whether the special master abused her discretion.” Id. at 485. Absent an explanation of how the special master ai’rived at the amount awarded, the court was unable “to perform its review function.” Id. at 486.
This court finds itself in a similar predicament to the Wasson court with respect to the alternate holding for attorneys’ fees on appeal. The special master found that unspecified “portions of Ms. Davis’s initial Federal Circuit brief were either copied from or based upon previously written briefs,” Davis V, 2012 WL 1357501, at *14, and that all but eight pages of her reply brief were likewise duplicated from earlier work, *640id. at *15. After noting these areas of repetition, the special master simply states that $27,606.65 would be a reasonable fee. He gives no hint as to how he reached this figure. He may have used the lodestar method, multiplying a reasonable rate by the number of hours he decided counsel should have expended in drafting the appellate briefs. Or he may have lopped a fixed percentage off the total fee requested by Ms. Davis. Or he could have applied some other methodology.
In these circumstances, the court cannot adopt the special master’s alternative result. He has not given any indication as to what method he used to derive his result or how he employed it. Cf. Perdue, 130 S.Ct. at 1676. Although the special master need not don the green eyeshade of an accountant and provide a line-by-line analysis of each entry in counsel’s timesheets, see Fox, 131 S.Ct. at 2216, he must nonetheless provide “a reasonably specific explanation for all aspects of [the] fee determination,” including his general methodology for arriving at the award amount, Perdue, 130 S.Ct. at 1676. Without such an overview, the court can neither discern nor review the basis for the award of $27,606.65. Id.; see also Wasson, 24 Cl.Ct. at 486 (“The court cannot evaluate the special master’s conclusion ... because the special master simply stated her conclusion without explaining her reasoning.”). Consequently, this portion of the fees decision must be set aside and remanded.
3. Alternate holding on costs for the appeal to the Federal Circuit.
Just as the special master provided an alternate holding for petitioner’s appellate fees, so too did he give an alternate holding for her appellate costs. He ruled that, if Ms. Davis did have a reasonable basis for appealing the adverse entitlement decision to the Federal Circuit, she nonetheless would not be entitled to any costs. Davis V, 2012 WL 1357501, at *16. He opined that “an award of costs to Ms. Davis ... would undermine (if not directly contradict) the Federal Circuit’s order” that “costs [be] awarded to the appel-lee.” Id.
As the court discussed supra, the special master placed too great an emphasis on the clerk’s quotidian application of Fed. R.App. P. 39. Although he says that the Federal Circuit ordered costs to be awarded to the government, the affirmance itself did not tax costs to petitioner. Rather, it was the entry of judgment, issued by the clerk’s office, which stated that “[c]osts are taxed against the Appellant(s) in favor of the Ap-pellee(s) under Rule 39.” Notice of Entry of Judgment at 1, May 12, 2011, ECF No. 82. There is no indication that the Federal Circuit gave the matter of costs any thought whatsoever in issuing its ruling citing Fed. Cir. R. 36. Certainly there is no suggestion that the appellate court sought to foreclose the possibility of an award of costs under 42 U.S.C. § 300aa-15(e)(l). Consequently, the special master acted arbitrarily in refusing to award costs. Cf. Hocraffer, 2011 WL 3705153, at *32 n. 30 (awarding petitioner’s costs for appeal even though costs incurred by the government were taxed to petitioner); Notice of Entry of Judgment, Hocraffer, No. 99-533V, Feb. 16, 2010, ECF No. 172. The court thus finds that Ms. Davis is entitled to her costs during and for the appeal.
CONCLUSION
For the reasons stated, petitioner’s motion for review of the special master’s decision on attorneys’ fees and costs is GRANTED IN PART and DENIED IN PART, as follows:
1. The portion of the special master’s decision finding that Ms. Davis lacked a reasonable basis for her appeal to the Federal Circuit from an adverse entitlement decision is SET ASIDE and replaced by the court’s finding that her appeal had a reasonable basis;
2. The portion of the decision awarding attorneys’ fees in a reduced amount for counsel’s work preparing and arguing the motion for review of the adverse entitlement decision is AFFIRMED;
3. The portion of the decision stating in the alternative an amount of Ms. Davis’s fees for her appeal is SET ASIDE and REMANDED to the special master for further proceedings;
*6414. The portion of the decision concerning Ms. Davis’s costs during her appeal is REVERSED and replaced by the court’s own finding that she is entitled to such costs.
In accord with 42 U.S.C. § 300aa-12(e)(2), the court allows 90 days for the completion of proceedings on remand.
It is so ORDERED.
. In accord with the Rules of the Court of Federal Claims ("RCFC”) App. B, Rule 18(b), this opinion and order is initially filed under seal. By rule, the parties are afforded fourteen days within which to propose redactions.
. NMO is the "demyelination of the optic nerve and spinal cord; it is marked by diminution of vision and possibly blindness, flaccid paralysis of the extremities, and sensory and genitourinary disturbances." Dorland's Illustrated Medical Dictionary 1267 (32nd ed. 2012). Demyelination is the "destruction, removal, or loss of the myelin sheath of a nerve or nerves.” Id. at 486.
. Under Althen, to demonstrate causation-in-fact a petitioner must "show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Secretary of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.Cir.2005).
.The court held that the special master acted improperly by considering evidence outside the record, but found that this error was harmless. Davis III, 94 Fed.Cl. at 66.
. In pertinent part, that rule provides:
The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value:
(a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous; [or]
(e) a judgment or decision has been entered without an error of law.
Fed. Cir. R. 36.
. Fed. R.App. P. 39(a)(2) provides that "if a judgment is affirmed, costs are taxed against the appellant.”
. Both the special master and this court cited Moberly in their opinions on Ms. Davis’s petition for entitlement and her motion for review, respectively. See Davis II, 2010 WL 1444056, at *6-7, *9, *13-14; Davis III, 94 Fed.Cl. at 63-64, 67. The government discussed Moberly at length in its briefs before the special master, this court, and the Federal Circuit. See, e.g., Resp’t's Resp. to Pet’r’s Mot. for Review, May 17, 2010, ECF No. 76, at 3 n.4; Brief for Respondent-Appellee, ("Appellee’s Br.") at 7 n.4, Davis IV, 420 Fed.Appx. 973; Oral argument at 5:17 to 10:01, Davis IV, 420 Fed.Appx. 973 (No. 2010-5159), available at http://www.cafc.uscourts.gov/oral-argument-recordings/2010-5159/all ("Davis IV Oral Argument”).
. Moberly, of course, stands for more than this overly simplistic recital of the statutory standard. The court has commented on the standard of proof only because it was the aspect of Moberly to which the special master pointed in his decision on attorneys’ fees. See Davis V, 2012 WL 1357501, at *11. Notably, Moberly also held that "the special master is entitled to require some indicia of reliability to support the assertion of the expert witness [as to the posited biological mechanism].” 592 F.3d at 1324. Ms. Davis did not and has not disputed this holding; in fact, she claimed she provided such “indicia of reliability" in the form of medical records, case reports, and circumstantial support in the medical literature. See Appellant’s Br. at 31.
. Further complicating the special master’s analysis is the holding in Capizzano v. Secretary of Health & Human Servs., 440 F.3d 1317 (Fed.Cir.2006). There the Federal Circuit ruled that "evidence used to satisfy one of the Althen. prongs [may] overlap to satisfy another prong.” Id. at 1326; cf. Appellant's Br. at 22 n.13, 33. For example, petitioner's proof concerning Althen prongs two and three might supplement her evidence for the first prong. Thus, even if the court agreed with special master that Moberly was unambiguous in its approach to Althen prong one, it would not necessarily follow that petitioner’s cause was frivolous or hopeless.
. As a general principle, the court is hesitant to give much weight to the government’s warnings when addressing whether a petitioner's claim has a reasonable basis. For instance, in opposing the present motion for review, the government chides Ms. Davis for failing to cite to Ferreira v. Secretary of Health & Human Servs., 33 F.3d 1375 (Fed.Cir.1994), and includes a similar warning that the omission of this case may render frivolous her motion for review of the special master’s fee decision. See Resp’t’s Resp. to Pet’r’s Mot. for Review ("Resp’t’s Opp’n”), May 16, 2012, ECF No. 98, at 10 n.ll. Yet Peneira is hardly dispositive of Ms. Davis’s request for fees. In Peneira, the attorneys learned midway through the litigation that their "expert['s] opinion was grounded in neither medical literature nor studies.” 33 F.3d at 1377. Here, the scien-tifie underpinning of Ms. Davis’s case has remained as sound as when the petition was first filed. The central contention for doubting the reasonable basis of Ms. Davis’s appeal turns on the interpretation of Moberly. Peneira provides no guidance on this question, beyond the basic notion that a claim can lose its reasonable basis based on fact' — a proposition that Ms. Davis has never disputed. And yet the government suggests that Perreira is so crucial to the outcome of this motion that Ms. Davis may have acted frivolously in failing to consider and distinguish it. This example demonstrates how, in the heat of litigation, lawyers may be too quick to claim that their opponents are “not dealing] fairly with the court” or are "significantly misrepresent[ing] the law.” Resp’t’s Opp’n at 10 n.11 (quoting Abbs v. Principi, 237 F.3d 1342, 1345 (Fed.Cir.2001)).
. The special master acknowledged as much in his opinion. He disavowed using Rule 36 as a bright line test and noted that special masters have awarded attorneys’ fees for appeals that were denied without opinion. Davis V, 2012 WL 1357501, at *12 (citing Hocraffer v. Secretary of Health & Human Servs., No. 99-533V, 2011 WL 3705153, at *32 (Fed.Cl.Spec.Mstr. July 25, 2011), aff'd, 2011 WL 6292218 (Fed.Cl. Nov. 22, 2011)). He nonetheless listed the Rule 36 affir-mance as an "important factor” in his determination. Id. at *12.
. The special master does not mention Calise in his decision, although Ms. Davis discussed the case in her briefing. See Pet'r's Reply to Resp't’s Resp. in Opp’n to Pet’r’s Appl. for Final Attys’ Fees and Costs, Nov. 17, 2011, ECF. No. 90, at 9-10.
.In addition to serving as Ms. Calise’s expert witness, Dr. Steel was also her treating neurologist. Calise, 2011 WL 1230155, at *24; cf. Capizzano, 440 F.3d at 1326 (recognizing that opinions of treating physicians are due particular respect). Furthermore, Dr. Steel’s theory of causation had matured in the year following his testimony in Davis. Calise, 2011 WL 1230155, at *17. Knowledge in this field of medicine is increasing rapidly, and further developments enabled Dr. Steel to articulate his theory more persuasively than he could during the Davis hearing. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218290/ | ORDER
WOLSKI, Judge.
Plaintiff CBY Design Builders (“CBY’) has moved to amend the protective order issued in this case. See CBY Design Build*642ers’ Mot. to Amend. Prot. Order (“PL’s Mot.”) at 1-2. It argues that further corrective action or a new award under the subject procurement could give rise to subsequent bid protests, to which protected information obtained in the course of this bid protest could be relevant. Id. at 1. Accordingly, CBY requests that two paragraphs of the protective order be amended — to allow the parties to this ease to retain all copies of documents containing the information protected by that order until sixty days following a new award, or thirty days following the conclusion of any subsequent protest concerning this procurement, whichever comes later; and to allow the private parties to use the protected information for purposes of any subsequent protest concerning this procurement. See id. at 1-2. By these amendments, plaintiff and the intervenors could avoid having to print or reproduce copies of documents destroyed because of the protective order, which are needed for any subsequent protests of actions taken in this procurement. Id. at 1.
One intervenor, PCCP Constructors, J.V., has given its consent to CBY’s motion, and the other, Bechtel Infrastructure Group, has taken no position on it. Id. at 2. The government, however, opposes the motion, arguing that CBY lacks good cause for amending the terms of a protective order to which the parties had previously agreed. See Def.’s Opp’n to PL’s Mot. at 2-3. Defendant contends that it is mere speculation that any information obtained in the course of this protest may be relevant to a future protest relating to this procurement, and that if the government were to omit any such information from the administrative record for a future protest a party could at that time seek relief from the Court. Id. The government downplays the prospects for saving much paper as a result of CBY’s proposed amendments, noting that future protests relating to this procurement could involve counsel (and even parties) differing from those admitted under the protective order, who would need their own copies of the relevant documents. Id. at 3.
Upon careful reflection, the Court concludes that good cause exists to support CBY’s requested amendments to the protective order. First, the administrative record for this protest was notably large, totaling sixteen volumes and 17,538 pages worth of material. CBY Design Builders v. United States, 105 Fed.Cl. 303, 323-24, 2012 WL 1889299, at *18 (2012). Plaintiff and interve-nors were each permitted to make up to six copies of protected documents. Protective Order ¶ 13 (Nov. 8, 2011). Thus, if only one percent of the administrative record were to be relevant to a future protest, the private parties could avoid wasting more than 3,000 sheets of paper.
Second, and more important, is the content of the protective order that CBY wants to amend. The government proposed, without opposition from the other parties, that the protective order for this case deviate in a few particulars from the sample order, Form 8 in the Appendix of Forms to the Rules of the United States Court of Federal Claims.1 See Def.’s Unopposed Mot. for Prot. Order (“Def.’s Mot.”) at 1. Defendant sought to broaden the class of government employees who were entitled to have access to protected information, to include “Executive Branch personnel involved with or affected by this litigation.” Protective Ordér ¶ 7; Def.’s Mot. at 3. And the government sought to narrow the restriction on use of protected information, excusing itself from the provision forbidding the use of protected information for purposes other than this litigation. Def.’s Mot. at 1-3; see Protective Order ¶ 2 (imposing a restriction on how “[protected information may be used by private parties”).
The latter modification was a particular cause for some concern, as the Court was reluctant to treat government counsel differently from their private counterparts. See CBY Design Builders v. United States, No. 11-740, 2011 WL 5402686, *1 (Fed.Cl. Nov. 8, 2011). Defendant justified the one-way nature of these modifications by noting that *643private parties could use proprietary information obtained in a bid protest “to gain an unfair competitive advantage for their businesses,” while the government “necessarily needs to obtain this information as part of any procurement decision” and — when this information is material to other decisions— “should not be forced to ignore that information in its decision-making process.” Def.’s Mot. at 2. The government added that its lawyers’ perpetual access to protected information would help “to ensure that [its] positions in [similar] cases are consistent.” Id. at 3. Although the government’s potential use of the protected information for purposes other than this litigation did not rise above mere speculation, and defendant was “proposing an uneven playing field of sorts,” the Court allowed the government’s motion, as the private parties whose protected information was at issue did not object. CBY Design Builders, 2011WL 5402686, at *1-2.
Any lingering qualms the Court may have concerning those modifications are alleviated by CBY’s motion. The changes proposed by plaintiff would level the playing field, eradicating the unequal treatment embodied in the protective order as issued. The uses of protected information that would be allowed under CBY’s proposal mirror the specific examples used by the government to support its own version of the protective order, as the information could be used by offerors in making procurement-related decisions (such as whether to protest subsequent decisions and how to challenge or defend these decisions) and in assessing the government’s consistency throughout this process.2 The information is not to be used for competitive advantage, but rather for the public purpose of ensuring that public servants make procurement decisions that are lawful and rational. These potential uses are no more speculative when contained in CBY’s motion than they were when the government deployed them in its motion. And in both instances, none of the private parties whose proprietary information is at issue object to the proposed terms.
The Court is not aware of any reason to believe that private counsel will be less scrupulous in following the protective order than will be counsel from the Department of Justice. As the Court has elsewhere explained, the often invoked (and misunderstood) presumptions of regularity and of good faith conduct were traditionally recognized to apply to private parties as well as public actors, see Tecom, Inc. v. United States, 66 Fed.Cl. 736, 758, 760-62 (2005), and the Federal Circuit has applied both presumptions to the actions of government contractors. See Alaska Airlines v. Johnson, 8 F.3d 791, 796 (Fed.Cir.1993). The government’s lawyers have come to possess the protected information in the same way that plaintiffs have, by representing parties to a lawsuit which concerned efforts to enter into a commercial relationship. It has long been settled that when the government “comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there.” Cooke v. United States, 91 U.S. (1 Otto) 389, 398, 23 L.Ed. 237 (1875); see also United States v. Winstar Corp., 518 U.S. 839, 895 & n. 39, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996) (plurality opinion). Thus, the Court holds that whenever a protective order issued in a bid protest case would broadly allow the government to use protected information for purposes other than that litigation, a presumption arises that the private parties should also be allowed to use that information for purposes of any subsequent bid protests concerning the same procurement. Good cause to amend the protective order to accommodate such uses will henceforth be presumed, and the burden in such cases will fall on the government to rebut this presumption. Plaintiff has demonstrated good cause for its motion, which is hereby GRANTED.
Accordingly, the protective order issued in this case is modified as follows. Paragraph two shall now read:
Restrictions on the Use of Protected Information. Protected information may be *644used by private parties for the purposes of this litigation and of any subsequent pro-testes) concerning the procurement that was the subject of this case, and may not be given, shown, made available, discussed, or otherwise conveyed in any form except as provided herein. If protected information is used in connection with any subsequent protest(s), the parties shall continue to treat that protected information as subject to the terms of this Protective Order, including limiting access to protected information to those individuals admitted under the Protective Order, until such time as a new protective order is issued to govern the other protest(s) and individuals are admitted thereunder.
Paragraph twenty shall now read:
Disposing of Protected Information. The private parties may retain all copies of protected information for sixty days following the procuring agency’s decision to award a contract under the procurement that was the subject of this case, or, if any protest related to this procurement is filed prior to that time, for thirty days following the conclusion of any protest(s) of the award decision (including any appeals or remands) or of any aspect of the corrective action taken in this procurement. At the conclusion of the later of the time periods specified in the previous sentence, each private party must destroy all protected information and certify in writing to each other party that such destruction has occurred or must return the protected information to the parties from which the information was received. Each private party may retain one copy of such documents provided those documents are properly marked and secured.
IT IS SO ORDERED.
. The basis for the protective order was Form 8 as it existed in November 2011. The sample order has since been modified, in a manner that does not affect the Court’s analysis of plaintiff’s motion. See Form 8, Appendix of Forms to the Rules of the United States Court of Federal Claims (as amended through July 2, 2012).
. The government’s lack of consistency in its subjective judgments can be evidence that a procurement decision was arbitrary. See USfalcon, Inc. v. United States, 92 Fed.Cl. 436, 462 (2010) (citing Beta Analytics Int'l, Inc. v. United States, 67 Fed.Cl. 384, 399 (2005)). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218291/ | MEMORANDUM OPINION AND FINAL ORDER
BRADEN, Judge.
On September 16, 2011, pro se plaintiff David Mark Rivera (“Plaintiff’), a federal prisoner at the Federal Correctional Complex (Low) in Yazoo City, Mississippi, filed a Complaint (“CompL”) in the United States Court of Federal Claims. The September 16, 2011 Complaint alleges that, through a series of events, Plaintiff deposited hundreds of millions of dollars with the United States *646Treasury (“the Treasury”) to hold in trust, that he now demands be repaid. Compl. at 4-13.
I. FACTUAL BACKGROUND.1
A. “The Sovereign Citizen Movement.”
The September 16, 2011 Complaint and the attached documents are proffered as evidence that Plaintiff is a sovereign, not a United States citizen, and therefore is entitled to obtain certain funds under a theory known as “redemption.” Compl. at 4-12,18-19. According to this theory, sovereign citizens become parties to government contracts on receipt of a birth certificate and social security card. See Bryant v. Washington Mut. Bank, 524 F.Supp.2d 753, 758 (W.D.Va.2007). Through these contracts, individuals “unknowingly pledge themselves and their property ... as security for the national debt,” but the Government holds the “profits it makes from this use of its citizens and their property.” Id. at 758-59. Those who subscribe to this theory believe that the 1933 House Joint Resolution 192 provides the legal basis for “sovereign citizens” to collect money held by the Government in the trust when they file one or more Uniform Commercial Code (“UCC”) financing statements, naming themselves as both the secured party and the debtor. Id. at 759 (citing H.R.J. Res. 192, 73d Cong. (1933)).
B. Facts Alleged In The September 16, 2011 Complaint.2
The September 16, 2011 Complaint alleges that Plaintiff is a sovereign entity, not a citizen subject to United States law. Compl. at 18; see also Compl. at 46-47 (document entitled “Notice Declaration & Certificate of Sovereign Status”). The September 16, 2011 Complaint also alleges that Plaintiff has a “perfected security interest in all property held in the name of ‘DAVID MARK RIVERA(C)’ ” as the “original grantor and beneficiary’ of a “trusVtreasury account” through which he has extended credit to the Government. Compl. at 4, 6-7, 18-19. This trust account was established by a “Contract Deed,” allegedly created by the Government’s issuance of Plaintiffs birth certificate and social security number. Compl. at 4, 6-7. The funds in this “trusVtreasury account” are “presently under the custodial care of the U.S. Treasury,” with the Secretary of the Treasury acting as “trustee” until Plaintiff “redeem[s]” his “trusVtreasury account,” Compl. at 4, 19. In the interim, these trust accounts are used to issue “U.S. Treasury Bonds and/or Notes” and the funds of the bonds and/or notes are “paid into the federal court’s registry and later deposited into U.S. Treasury.” Compl. at 5. As a result of this trust, Plaintiff is owed hundreds of millions of dollars that he allegedly issued to the *647United States as credit. Compl. at 6-12, 19. The Secretary of the Treasury, as “trustee,” however, has refused Plaintiffs demand for repayment. Compl. at 6-12, 19. Therefore, the September 16, 2011 Complaint seeks repayment as well as injunctive and equitable relief, including protection against retaliation for having commenced this action.3 Compl. at 11-13.
II. PROCEDURAL HISTORY.
On November 14, 2011, the Defendant (“the Government”) filed a Motion To Dismiss Complaint (“Gov’t. Mot.”), pursuant to RCFC 12(b)(1) and 12(b)(6), because Plaintiff has not established a valid contract with the Government, has not cited any statutes that would enable the court to have jurisdiction, and the bounds of the court’s remedial powers are exceeded by the request for equitable relief. Gov’t. Mot. at 7-10.
On December 12, 2011, the Government also filed three additional motions: (1) a Motion For Protective Order Striking Plaintiffs Second Discovery Request, (2) a Motion For Leave To File An Amended Certificate Of Service For Defendant’s Motion For Protective Order Striking Plaintiffs Discovery Request, and (3) a Motion For Leave To File An Amended Certificate Of Service For Defendant’s Response To Plaintiffs Motion To Strike Government Counsel’s Notice Of Appearance.
On December 28, 2011, Plaintiff filed a document captioned “Notice Of Response To Respondent’s Response And Motion And Command To Respondent, The United States — By Special Visitation[.]” On December 29, 2011, Plaintiff filed a document captioned “Constructive Notice — By Special Vis-itationf.]” On January 17, 2012, Plaintiff filed a document captioned “Notice Of Response To Second ‘Notice Of Appearance’ And Emergency Third Special Interrogatory And Special Advisory — By Special Visitation[.]”
On April 25, 2012, the court allowed several documents to be filed that were previously submitted by the parties, but not formally docketed due to filing defects. These include: a document captioned “Notice And Demand For Emergency Hearing And Determination On Verified Notice And Petition — By Special Visitation,” filed by Plaintiff; a document captioned “Verified Final Notice And Demand To Strike Respondent’s Papers And For Final Order Of The Court— By Special Visitation,”4 filed by Plaintiff; a Motion For A Protective Order Striking Plaintiffs Discovery Request, filed by the Government; and a Response To Plaintiffs Motion To Strike Government Counsel’s Notice Of Appearance And For Final Order Of The Court, filed by the Government.
III. DISCUSSION.
A. Jurisdiction.
The jurisdiction of the United States Court of Federal Claims is established by the Tucker Act. See 28 U.S.C. § 1491 (2006). The Tucker Act authorizes the court “to render judgment upon 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, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the *648United States for money damages.... [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Therefore, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, or executive agency regulation that provides a substantive right to money damages. See Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc) (“The Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.”). The burden of establishing jurisdiction falls on the plaintiff. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (holding that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction); see also RCFC 12(b)(1).
The jurisdictional defects in Plaintiffs September 16, 2011 Complaint are discussed below.
B. Standards For Decision On Motion To Dismiss.
1. Under RCFC 12(b)(1).
A challenge to the United States Court of Federal Claims’ “general power to adjudicate in specific areas of substantive law .... is properly raised by a [Rule] 12(b)(1) motion[.]” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999); see also RCFC 12(b)(1) (“Every defense to a claim for relief in any pleading must be asserted in the responsive pleading.... But a party may assert the following defenses by motion; (1) lack of jurisdiction over the subject matter[.]”). When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is “obligated to assume all factual allegations of the complaint to be true and to draw all reasonable inferences in plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995).
Nonetheless, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (“[0]nce the [trial] court’s subject matter jurisdiction [is] put in question .... [the plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.”).
2. Under RCFC 12(b)(6).
A challenge to the United States Court of Federal Claims’ “[ability] to exercise its general power with regard to the facts peculiar to the specific claim ... is raised by a [Rule] 12(b)(6) motion[.]” Palmer, 168 F.3d at 1313; see also RCFC 12(b)(6) (“Every defense to a claim for relief in any pleading must be asserted in the responsive pleading.... But a party may assert the following defenses by motion: ... (6) failure to state a claim upon which relief can be granted[.]”).
When considering whether to dismiss an action for failure to state a claim, the court “must assess whether the complaint adequately states a claim and whether plaintiffs can allege facts plausibly suggesting (not merely consistent with) a showing of entitlement to relief.” Hutchens v. United States, 89 Fed.Cl. 553, 562 (2009) (citations omitted) (internal quotation marks omitted). The plaintiffs factual allegations must be substantial enough to raise the right to relief “above the speculative level,” accepting all factual allegations in the complaint as true and “indulging] all reasonable inferences in favor of the non-movant.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
C. Standard Of Review For Pro Se Litigants.
The pleadings of a pro se plaintiff are held to a less stringent standai’d than those of litigants represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers” (citations omitted) (internal quotation marks omitted)). It has been the tradition of this court to examine the record “to see if [a pro *649se ] plaintiff has a cause of action somewhere displayed.” Ruderer v. United States, 412 F.2d 1285, 1292 (Ct.Cl.1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs complaint, the court “does not excuse [a complaint’s] failures.” Henke, 60 F.3d at 799.
D. Whether Plaintiffs Complaint Should Be Dismissed For Lack Of Jurisdiction.
1. The Government’s Argument.
The Government argues that the allegations in the September 16, 2011 Complaint are not new, but have been asserted in a series of frivolous filings in courts throughout the United States. Gov’t. Mot. at 2. A pro se plaintiff is not excluded from complying with jurisdictional requirements, despite the leniency generally afforded to them. Gov’t. Mot. at 6. Therefore, the September 16, 2011 Complaint must be dismissed, because it does not state a claim within this court’s jurisdiction. Gov’t. Mot. at 7.
First, Plaintiff alleges that his birth certificate and social security number are express contracts with the United States, under which Plaintiff loaned funds to the Government. Compl. at 4, 6-7, 18-19. Because “[n]either birth certificates nor social security numbers recognize or impose contractual rights, obligations, or duties,” this court previously has held that such an allegation is “frivolous” and does not confer jurisdiction on this court. See Gravatt v. United States, 100 Fed.Cl. 279, 286 (2011); see also Bryant, 524 F.Supp.2d at 762 (holding that a claim based on the same theories as those advanced by plaintiff in this case are “clearly nonsense in almost every detail”).
Second, 28 U.S.C. § 2042 is not money-mandating. See Gravatt, 100 Fed.Cl. at 287 (holding that section 2042 is not money-mandating because “it describes the requirements for disbursement of money paid into the court by private parties .... [and] does not impose any specific monetary obligations on the government”). Moreover, a claim based on section 2042 is “frivolous on its face because the provision does not apply to the Court of Federal Claims.” Id.
Third, Plaintiffs reliance on 31 U.S.C. §§ 1321(b)(1) and 1322 is misguided. Gov’t. Mot. at 9. The analysis of whether sections 1321(b)(1) and 1322 are money-mandating is unnecessary, because the claims alleged in the September 16, 2011 Complaint are “patently frivolous” and “[i]t strains all logic and reason to believe that the trust fond alleged by plaintiff actually exists.” Gravatt, 100 Fed.Cl. at 288. Since the September 16, 2011 Complaint failed to make any credible allegation that Plaintiff is the beneficiary of an actual trust, Plaintiff is not within the class of plaintiffs entitled to recover under sections 1321(b)(1) and 1322 if those provisions were money-mandating. Gov’t. Mot. at 10 (citing Gravatt, 100 Fed.Cl. at 288).
Fourth, the court does not have the authority to grant equitable or injunctive relief, unless it is tied to a money judgment. See Voisin v. United States, 80 Fed.Cl. 164, 177-78 (2008) (noting that the court has no authority to grant equitable relief unless it is tied and subordinate to a money judgment (citing United States v. King, 395 U.S. 1, 5, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (holding that the court generally does not have the authority to issue declaratory judgments); James v. Caldera, 159 F.3d 573, 580-81 (Fed.Cir.1998) (holding that the court has the authority to grant declaratory relief in cases where the declaratory relief is “an incident of and collateral” to a money judgment))). In this ease, there is no legitimate claim for a money judgment, because the September 16, 2011 Complaint does not assert a valid contract claim nor cite a money-mandating statute. Gov’t. Mot. at 10. As a result, the claims in the September 16, 2011 Complaint must be dismissed. Gov’t. Mot. at 11.
2. Plaintiffs Response.
The September 16, 2011 Complaint alleges that this court has jurisdiction to adjudicate the claims therein under 28 U.S.C. § 2041 et seq., 31 U.S.C. § 1321 et seq., the “Big Tucker Act,” 28 U.S.C. § 1491(a)(1), and the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2). Compl. at 2-3. The following factual allegations establish jurisdiction under one or more of these statutes.
First, Plaintiff extended credit to the Government through the use of his “common-*650law-copyrighted trade-name/trademark,” as evidenced by Plaintiffs birth certificate that “is used by a bond(s) for the performance of UNITED STATES Government Contract Number [Plaintiffs Social Security Number].” Compl. at 4. This bond was held by the trustee, the Secretary of the Treasury, in a “National Registry/Trust Aceount[.]” Compl. at 4. In addition, Plaintiff caused “several and substantial special deposits to be advanced on behalf of BORROWER [The United States]” and that the trust account was used to issue Ti’easury Bonds. Compl. at 4-5. Subsequently, these bonds “were paid into the federal court’s registry and later deposited into U.S. Treasury.” Compl. at 5.
Therefore, Plaintiff is entitled to have these funds repaid, as he is “the rightful owner of the trust/registry funds paid into the federal registry and on deposit in the U.S. Treasury.” Compl. at 7. The Government has no beneficial interest in these funds, but rather is merely holding these funds for the rightful owner — here, the Plaintiff. Compl. at 8 (citing United States v. Klein, 303 U.S. 276, 58 S.Ct. 536, 82 L.Ed. 840 (1938)). As such, these funds must be distributed to Plaintiff, pursuant to 28 U.S.C. § 2042 and 31 U.S.C. § 1321(b)(1), that govern the “distribution of trust/registry funds[.]” Compl. at 9. Under these statutes, the court is “duty-bound” to determine the entitlement of the property at issue and to “direct disbursement and trust distribution^]” Compl. at 10.
In addition, the Plaintiff is entitled to in-junctive and equitable relief. An affidavit submitted by Plaintiff claims that after he brought past actions, the Government retaliated against him, including by placing him in a Special Housing Unit. Compl. at 19-20. The September 16, 2011 Complaint requests that this court grant his request for “temporary injunctive and equitable relief’ to prevent this type of retaliation. Compl. at 12.
3. The Court’s Resolution.
As a threshold matter, neither a birth certificate nor a social security number evidence a contract on which a private party can sue the Government. See Gravatt, 100 Fed.Cl. at 286 (holding that “[n]either birth certificates nor social security numbers recognize or impose contractual rights, obligations, or duties” and determining that such claims are “frivolous”); cf. Troxelle v. United States, No. 10-312C, 2010 WL 3982349, at *3-4 (Fed.Cl. Oct. 6, 2010) (unpublished) (holding that the issuance of a social security number is not a property interest for purposes of alleging a claim under the Fifth Amendment under the United States Constitution).
Plaintiff also contends that jurisdiction is proper because he has an implied contract with the Government. Compl. at 3. If Plaintiff is suggesting that the September 16, 2011 Complaint alleges a breach of an implied-in-law contract, the court does not have jurisdiction over such a claim. See Hercules Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (“We have repeatedly held that [the jurisdiction of the United States Court of Federal Claims] extends only to contracts implied in fact, and not to claims on contracts implied in law.”). If Plaintiff is suggesting that the September 16, 2011 Complaint alleges a breach of an implied-in-fact contract, the elements required to establish an implied-in-fact contract were not pled. See City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990) (holding that in order to establish an implied-in-fact contract, a plaintiff must demonstrate: (1) “mutuality of intent to contract;” (2) “consideration;” (3) “lack of ambiguity in offer and acceptance;” and (4) “the Government representative whose conduct is relied upon must have actual authority to bind the government in contract” (internal quotation marks omitted)).
Plaintiff also fails to understand that 28 U.S.C. § 2042 “does not obligate the government to pay money to elaimants[,]” but instead “describes the requirements for the disbursement of money paid into the court by private parties.” Gravatt, 100 Fed.Cl. at 287. Since section 2042 “does not impose any specific monetary obligations on the [Government, it cannot provide a basis for the payment of damages,” and therefore it “is not a money-mandating source of jurisdiction under the Tucker Act.” Id. Moreover, *651the section 2042 claim is “frivolous on its face because the provision does not apply to the Court of Federal Claims.” Id. at 287-88.
Nor do 31 U.S.C. §§ 1321(b)(1) and 1322 provide Plaintiff with a remedy in this court. Section 1321(b)(1) requires that amounts to be held in trust by the United States as a trustee must be “deposited in an appropriate trust fund account in the Treasury” and “disbursed in compliance with the terms of the trust.” 31 U.S.C. § 1321(b)(1) (2006). Section 1322 requires the Secretary of the Treasury to transfer unclaimed trust funds into a special account from which claims to those specific funds can be paid. See 31 U.S.C. § 1322 (2006). As the court has held, “[i]t strains all logic and reason to believe that the trust fund alleged by plaintiff actually exists.” Gravatt, 100 Fed.Cl. at 288. Therefore, because the September 16, 2011 Complaint does not state a credible allegation that Plaintiff “is a beneficiary of a trust to which the United States serves as trustee,” he is unable to recover under sections 1321(b)(1) and 1322. Id. (quoting Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1307 (Fed.Cir.2008) (holding that a plaintiff must make a “nonfrivolous assertion that [he or she] is within the class of plaintiffs entitled to recover under the money-mandating source”)).
Finally, the court does not have jurisdiction to adjudicate claims for injunctive relief related to a prison sentence because, in non-bid protest actions, the court only has jurisdiction to provide equitable relief in limited circumstances. See, e.g., Nat’l Air Traffic Controllers Ass’n v. United States, 160 F.3d 714, 716 (Fed.Cir.1998) (“Although the Tucker Act has been amended to permit the [United States] Court of Federal Claims to grant equitable relief ancillary to claims for monetary relief over which it has jurisdiction, there is no provision giving the [United States] Court of Federal Claims jurisdiction to grant equitable relief when it is unrelated to a claim for monetary relief pending before the court.” (citations omitted)).
Since the September 16, 2011 Complaint does not involve a contractual relationship with the Government, nor invoke a money-mandating statute, it must be dismissed for lack of jurisdiction pursuant to RCFC 12(b)(1).
IV. CONCLUSION.
For the reasons discussed herein, the Government’s November 14,2011 Motion To Dismiss is granted. See RCFC 12(b)(1) and (6). Accordingly, the Clerk of the Court is directed to dismiss Plaintiffs September 16, 2011 Complaint.
IT IS SO ORDERED.
. The facts herein have been derived from the September 16, 2011 Complaint and the documents attached thereto. In support of the Complaint, the following documents, among others, were attached: a Washington State Department of Licensing Uniform Commercial Code Debtor Information Search Report; two "Copyright Notices" for the name, David Mark Rivera; federal tax forms; letters to the Secretary of Treasury; Plaintiff's birth certificate; a UCC Financing Statement No. 2007-271-7348-7; a July 18, 2007 “Non-Negotiable Security Agreement” issued as "Bond” in the amount of $100 million dollars; a "Notice Declaration & Certificate of Sovereign Status;” a UCC Financing Statement No. 11-7280530037; and a July 29, 2011 "Notice of Special Deposit And Liability And For Discharge, Release And Reconveyance.” Compl. at 31-114. Several of the attachments are captioned "Special Deposits” or "Money Order” and have writing across the face of the documents indicating that Plaintiff attempted to create money orders in total amount of hundreds of millions of dollars, and then to deposit those money orders into the Treasury. Compl. at 115-81. The deposits were to be charged against debts supposedly created by the Government through the United States District Court for the Southern District of Texas, the United States Department of Justice, the Department of Treasury, and various federal employees whose names have appeared on pleadings or other official documents related to this case.
. The "Sovereign Citizen Movement” has been discussed in government and other documents. See generally The Sovereign Citizen Movement, Fed. Bureau of Investigation, http://www.fbi.gov/ news/stories/2010/april/sovereigncitizens_041310 (last visited June 12, 2012); Sovereign Citizen Movement — Extremism in America, Anti-Defamation League, http://www.adl.org4eam/ex1_us/ SCM.asp?xpicked:4 (last visited June 12, 2012); Sovereign Citizens Movement, Southern Poverty Law Center, http://www.splcenter.org/get-informed/intelligence-files/ideology/sovereign-citizens-movement (last visited June 12, 2012).
. The claims presented in the Plaintiff’s September 16, 2011 Complaint are similar to those of Brandon S. Gravatt, an inmate housed in the same prison as Plaintiff. See Gravatt v. United States, 100 Fed.Cl. 279 (2011). For example, the September 16, 2011 Complaint cites the same statutes that the Gravatt plaintiff also relied upon: 28 U.S.C. § 2042 and 31 U.S.C. §§ 1321(b)(1), 1322. Compare Compl. at 2, with Gravatt, 100 Fed.Cl. at 287-88. Similarly, the Gravatt plaintiff also requested injunctive relief that the court denied, because there were no valid monetary claims presented. Compare Compl. at 11-13, with Gravatt, 100 Fed.Cl. at 288.
. The document captioned "Verified Final Notice And Demand To Strike Respondent’s Papers And For Final Order Of The Court — By Special Visitation" requests that the court "strike” the Government's Motion To Dismiss and enter judgment for all the relief requested by Plaintiff, therefore the court treats this filing as Plaintiff's Response to the Government’s Motion To Dismiss. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218292/ | OPINION
BRUGGINK, Judge.
This is a claim for recovery of monies allegedly illegally withheld by offset from a tax refund. The government used the offset process in order to recoup monies it contends were owed after plaintiff defaulted in repayment of student loans. We previously held that plaintiff had executed a promissory note, which was in default. We declined to grant the government’s motion for summary judgment, however, because it had not established that the note had been assigned to the Department of Education (“DOE”) and that the department had followed all necessary procedures preliminary to offset. See Kipple v. United States, 102 Fed.Cl. 773, 774-75 (2012).
Pending are the parties’ cross-motions for summary judgment. Defendant asserts that the government accepted assignment of the loan and satisfied all the requirements of 31 U.S.C. § 3720A (2006) before taking plaintiffs money. In his cross-motion, plaintiff asks the court to revisit the issues resolved in our prior ruling and challenges defendant’s assertions of assignment and satisfaction of the procedural requirements. The matter is fully briefed. Oral argument is deemed unnecessary. For the reasons set out below, we conclude that there is not a genuine dispute of material fact and that defendant is entitled to summary judgment.
BACKGROUND
In 1969, plaintiff entered the University of St. Thomas (“UST”) where he received four disbursements totaling $1,650 during 1969 to 1972 to pay for his studies.1 Upon each disbursement, plaintiff signed a corresponding line on a document also recording the date and amount of money for each disbursement. The document, clearly denominated “Promissory Note,” contained all the indicia of a loan even though plaintiff did not sign *653one section at the end of the second page. We previously held that plaintiff had indeed borrowed money from UST. See Kipple, 102 Fed.Cl. at 778. DOE computer records clearly indicate that plaintiff defaulted on this loan in 1978 and made no further payments on the account after 1978.
In 1984, UST sought to assign the loan to the DOE. DOE rejected UST’s first application for assignment in July 1984 due to a lack of exit interview documentation. After a university official supplied a reason for the missing exit interview documentation, DOE no longer considered the missing exit interview documentation an obstacle to assignment. DOE computer records indicate the loan entered its computer system in November 1984. DOE referred plaintiff’s loan to the Treasury Offset Program (“TOP”) in 1990 and continued to pursue tax refund offset through 1992. The department made a few collection attempts through 2007, when it authorized a collections agency to seek repayment and resumed seeking tax refund offset.
The current dispute began in 2007 when DOE’s collections agent Van Ru Credit Corporation began contacting plaintiff. Plaintiff immediately objected on the ground that the $1,650 disbursed to him at UST did not constitute a loan. He voiced those objections to Van Ru Credit Corporation, the DOE’s Customer Care Group, its Office of the Ombudsman, the DOE Default Resolutions Group, his United States senator, and finally to this court through the present lawsuit. Plaintiff eventually moved for summary judgment, and defendant filed a cross-motion for summary judgment.
We construed plaintiffs complaint as seeking recovery for an illegal exaction. Plaintiff, as he has maintained for some years now, argued that the document he had signed, though denominated a “Promissory Note,” represented a grant or scholarship. Looking to the four corners of the document and plaintiff’s signature affixed to each disbursement of funds, we held that the document was a loan, which plaintiff had the obligation to repay. Plaintiff presently seeks to resurrect the controversy over whether he borrowed money, but he produces no new or persuasive evidence. We also noted in our prior opinion that defendant’s proposed findings of fact, supported by letters and computer recoi’ds, established plaintiffs default. Plaintiff did not meaningfully challenge defendant’s proposed findings of fact with respect to default. See id. at 775. Plaintiff contends once again that he was not in default, but has not supplied any evidence that raises a meaningful challenge. We will not, therefore, reconsider plaintiffs challenges to the existence of a loan and to his default.
We could not fully resolve the case during the last round of summary judgment motions because there was not sufficient evidence as to whether DOE had accepted assignment and whether it properly followed procedures applicable to offset. Defendant, relying on additional evidence concerning DOE’s adherence to TOP procedures, has renewed its motion for summary judgment; plaintiff has cross-moved.
DISCUSSION
In determining whether DOE engaged in an illegal exaction by improperly offsetting plaintiffs tax refund, we consider the relevant statutes and regulations governing TOP and whether DOE conformed with them. See Norman v. United States, 429 F.3d 1081, 1095 (Fed.Cir.2005) (“An ‘illegal exaction,’ as that term is generally used, involves money that was ‘improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.’”) (citation omitted).
The statute authorizing federal agencies to utilize TOP, 31 U.S.C. 3720A (2006), provides the following:
(a) Any Federal agency that is owed by a person a past-due, legally enforceable debt (including debt administered by a third party acting as an agent for the Federal Government) shall, and any agency subject to section 9 of the Act of May 18, 1933 (16 U.S.C. 831h), owed such a debt may, in accordance with regulations issued pursuant to subsections (b) and (d), notify the Secretary of the Treasury at least once each year of the amount of such debt.
*654(b) No Federal agency may take action pursuant to subsection (a) with respect to any debt until such agency—
(1) notifies the person incurring such debt that such agency proposes to take action pursuant to such paragraph with respect to such debt;
(2) gives such person at least 60 days to present evidence that all or part of such debt is not past-due or not legally enforceable;
(3) considers any evidence presented by such person and determines that an amount of such debt is past due and legally enforceable;
(4) satisfies such other conditions as the Secretary may prescribe to ensure that the detennination made under paragraph (3) with respect to such debt is valid and that the agency has made reasonable efforts (determined on a government-wide basis) to obtain payment of such debt; and
(5) certifies that reasonable efforts have been made by the agency (pursuant to regulations) to obtain payment of such debt.
TOP is thus only authorized with respect to debts owed to the government. In addition, the agency utilizing TOP must notify the debtor and give him an opportunity to present evidence objecting to the legal enforceability or past-due status of the debt. Further, the agency must review any evidence presented to it. Finally, the agency must conform to any regulations specified by the Secretary of the Treasury and certify to the Secretary that “reasonable efforts have been made ... to obtain payment of such debt.” Id. The Treasury has promulgated regulations governing eligibility for refund offset, some of which further specify the requirements of 31 U.S.C. 3720A(b). See 26 C.F.R. § 301.6402-6(b)-(e) (2007); 31 C.F.R. §§ 285.2-285.5 (2007). We will consider each requirement in turn.
1. Assignment to the Department of Education
The first requirement is that the agency in question must in fact be “owed by a person a past-due, legally enforceable debt.” 31 U.S.C. § 3720A(a). Defendant provided the declaration of Annette Derrick to support its contention that plaintiffs loan had indeed been assigned to DOE. Ms. Derrick, a Management and Program Analyst at the DOE, helps oversee a variety of activities at the Office of Federal Student Aid, including assignments of certain loans to DOE. Def.’s Ex. 1 at 1.2 She also has access to DOE computer systems related to this dispute. Id. In her declaration, Ms. Derrick explains the documents relating to UST’s assignment of the loan to DOE. Def.’s Ex. 1 at 4. UST first submitted the loan to DOE on or about July 27, 1984, but DOE rejected assignment due to the lack of exit interview documentation. Def.’s Ex. 1 at 4, 10-11, 15. UST responded with an explanation for its failure to conduct an exit interview and submitted a new application on or around October 10, 1984; DOE rejected this application on October 19, 1984, due to the lack of a manifest of assignment. Def.’s Ex. 1 at 4, 16-17. Finally, UST submitted another assignment form which the DOE approved on or around November 6,1984, as evidenced by a review checklist marked “approved” with “ADD” written on it. Def.’s Ex. 1 at 4, 18. Ms. Derrick states that a computer printout from the DOE’s computer system confirms DOE’s acceptance of assignment in November 1984. Def.’s Ex. 1 at 4,8.
Plaintiff suggests that successful assignment requires generation of a number of other documents. See, e.g., 34 C.F.R. § 674.50 (2011). Defendant responds that not all of these documents are required. See id. § 674.50(c). The parties do not provide the years of the relevant regulations in their citations, but it appears both are relying on rules currently regulating assignments to the DOE. The regulations have changed, however, since 1984. See Perkins Loan Program, 52 Fed. Reg. 45,552 (Nov. 30, 1987) (to be codified at 34 C.F.R. § 674) (operating as part of the replacement of the National Direct Student Loan Program with the Perkins *655Loan Program). The regulations in place when the assignment occurred were less specific, allowing assignment as long as “due diligence” was exercised. 34 C.F.R. § 674.8(e) (1984). The due diligence requirements applicable at the time mainly consisted of certain disclosure rules, including conducting an exit interview, as well as procedures in the event no exit interview could be conducted. See Id. § 674.42. The exit interview regulation further specified that an “institution must, if possible, conduct an interview ...” Id. § 674.43(b) (emphasis added). A UST official’s letter explaining why the assignment application lacked exit interview documentation specifically stated that one was not “able to be done.” Def.’s Ex. 1 at 16. As for other due diligence requirements, both Correction Worksheets note that the DOE determined that all other such requirements were satisfied even in the rejected applications. Def.’s Ex. 1 at 15, 17.
The only evidence to the contrary plaintiff offers are a pair of computer warnings on the printout that confirms assignment. Pl.’s Resp. & Cross-Mot. 16; Pl.’s Ex. 13. These warnings do not call into doubt whether assignment occurred, however. One is a computer-generated warning that the last grace date of the loan, February 30, was invalid. The other warns that the last payment date was later than the default date. We view neither of these warnings as vitiating defendant’s evidence that DOE followed assignment procedures in effect in 1984. At most they are harmless errors. There is no genuine issue of material fact as to whether the assignment occurred.
II. Notice and Opportunity to Present Evidence
The TOP statute requires that a person indebted to a federal agency receive notice and the opportunity to object before that agency seeks to offset the person’s tax refund. See 31 U.S.C. § 3720A(b)(l)-(2). Implementing regulations provide that an agency must notify or reasonably attempt to notify the debtor, including in such notice a warning that the person must repay within sixty days or have the person’s refund offset, and they require that the agency give the taxpayer the opportunity to present evidence concerning the legal enforceability or default status of the debt. 26 C.F.R. § 301.6402-6(c)(4)-(5) (2007). DOE regulations specify that the notice must include the default status of the debt, the intent to offset that debt, the opportunity for review, and the date by which such review must be requested. 34 C.F.R. § 30.33(b) (2007).
Plaintiff does not appear to challenge the sufficiency of notice. Pl.’s Resp. & Cross-Mot. 3 (“[Bjoth [parties] agree that the Department is in compliance with the [notice provisions], but there appears to be a difference in opinion as to both the date and method of that compliance.”). Plaintiff seems to concede that the DOE satisfied its notice requirement after offset pursuant to 34 C.F.R. § 30.28. Id. at 26-27. While 34 C.F.R. § 30.28 may allow the DOE to offset without first meeting notice requirements, neither party claims that the standards for justifying post-offset notice have been met. Defendant actually disclaims the notion that the DOE sent late notice in reliance on 34 C.F.R. § 30.28. See Def.’s Reply 11. Hence, we must determine whether DOE sent sufficient notice before offset.
Defendant has proffered a computer printout and an affidavit interpreting that printout as evidence that DOE sent a notification letter to plaintiff in 2007 prior to the April 2008 offset. Def.’s Ex. 2 at 3-4, 12. Rubio Canias, a loan analyst for DOE experienced with the computer system that produced the printout, states in his declaration that a line with the code “N 18” indicates that DOE sent a TOP notification letter on the date specified on that line. Def.’s Ex. 2 at 1-2, 12-13. The computer printout includes a line item with N18 on August 18, 2007, meaning that DOE sent a TOP notification letter on that date. Def.’s Ex. 2 at 4,12. Plaintiff draws attention to the fact that the computer printout has a blank space for his address on that same line, but we attach no significance to that. Canias in his affidavit explains that the N18 letter was sent to the address on file.3 Moreover, the lack of a “U” *656code on the N 18 line for August 18, 2007, means that any notification documented on that line did not return to DOE as undeliverable. August 18, 2007, precedes the offset date in April 2008 by more than sixty-five or sixty days, the time requirements under 34 C.F.R. § 30.33 and 31 U.S.C. § 3720A, respectively.
DOE has further provided a sample notification letter typifying what would be sent under an N18 code. Def.’s Ex. 2 at 6-11. Mr. Canias states that the proffered sample letter would be representative of the kind sent to plaintiff. Def.’s Ex. 2 at 3-4. The sample letter satisfies the various requirements for TOP notification letters mentioned above. For example, it clearly indicates the agency’s intent to offset and explains how the recipient can request review. Because plaintiff offers no contrary evidence, we are satisfied that DOE sent a notification letter meeting the statutory and regulatory requirements.
Although DOE satisfied notice requirements by sending a letter to plaintiffs last address on file, defendant emphasizes the likelihood that plaintiff actually received “at least one, if not all of the letters sent by DOE.” Def.’s Renewed Mot. Sum. J. 6-7. From the tenor of plaintiffs correspondence with Van Ru Credit Corporation and the DOE, it seems more likely to us that he did not actually receive notice of the offset before it occurred. The likelihood of actual receipt, however, is not the relevant standard. By sending a notification letter to plaintiff at his address on file, the DOE satisfied the notice requirements. Relevant regulations provide that notification or a “reasonable attempt” to notify should be sent to the taxpayer; one possible reasonable attempt would be to send a letter to an address on file at the IRS, and another would be to send to the last address on file at the agency. See 26 C.F.R. § 301.6402-6(c)(4), (d)(1) (2007) (stating that the IRS’s last address on file would be reasonable); 31 C.F.R. § 285.2(d)(2) (2007) (stating that relying on the agency’s last address on file would be reasonable). DOE’s manner of notification was sufficient.
III. Review of Evidence Presented and Certification
DOE was obligated to consider any evidence presented by plaintiff in response to the TOP notification letter within at least 60 days. See 31 U.S.C. § 3720A(b)(2)-(3). DOE regulations specify exactly what the debtor must do to obtain consideration of evidence in response to a notice; the regulations also specify the period of time during which the debtor may object before the DOE can properly refer the debt to the Treasury. See 34 C.F.R. §§ 30.24, 30.33 (2007). Within 20 days after the date of notice, the debtor must file a request for review to DOE, providing all information necessary to identify the particular debt being contested, explaining why the debtor believes the notice contains any inaccuracies, and including documents in support of the debtor’s contentions. See id.
The TOP notification was sent on August 18, 2007. Shortly thereafter, correspondence occurred involving plaintiff, Van Ru Credit Corporation, and DOE. Defendant argues that, by virtue of this correspondence, the agency satisfied its obligation to consider evidence submitted by plaintiff prior to offsetting plaintiff’s refund. The correspondence, however, betrays no awareness of the impending tax refund offset. None of the correspondence indicates that plaintiff filed a timely request for review directly to DOE with respect to the offset. Instead, his correspondence was directed to Van Ru Credit Corporation.
Nevertheless, DOE did respond to the substance of plaintiffs objections, even though they went through Van Ru Credit Corporation. Def.’s Ex. 2 at 4. We further note that the DOE Office of the Ombudsman offered to explain to plaintiff how to file an untimely request for review of the TOP referral. See PL’s Ex. 18 at 4. Apparently plaintiff did file such an untimely request for review and DOE considered the submission, although it did not change its position. PL’s Ex. 16.
*657The TOP statute also requires an agency pursuing Treasury offset to certify that “reasonable efforts have been made by the agency (pursuant to regulations) to obtain payment of such debt.” 31 U.S.C. § 3720A(b)(5). To demonstrate compliance with this obligation, defendant produced an official certification agreement between DOE and Treasury, which states that,
[a]ny person who submits Debts via an Add Record or Update Record has or will have delegated authority to certify the Debts on behalf of the head of the U.S. Department of Education_ [T]he person is certifying to [Treasury] ... that to the best of his or her knowledge and belief, the following is true and correct ... The U.S. Department of Education has made reasonable efforts to obtain payment of the Debt.
Def.’s Ex. 2 at 51-53. The DOE thus fulfilled the requirements of 31 U.S.C. § 3720A(b)(5).
With respect to Treasury regulations governing offset, plaintiff contends that DOE failed to comply with procedures implicit in the definition of “enforceable debt.” He points out that a “legally enforceable” debt in the TOP context arises when there has been a final agency determination that the amount of the debt is due and no provisions of law bar collection by offset. 31 C.F.R. § 285.5. Plaintiff contends the DOE has failed to make such a final agency determination. We do not agree. The relevant regulations focus the agency’s inquiry on whether some legal bar such as an automatic stay in a bankruptcy proceeding precludes collection. The DOE letter of October 18, 2007, clearly reflects that the agency made a determination that plaintiff owed money and that no legal bar prevented collection. See Def.’s Ex. 2 at 16. Even if 31 C.F.R. § 285.5 created a separate procedural requirement for TOP, defendant clearly complied with such a requirement.4
Defendant has therefore produced meaningful evidence that it fulfilled its obligations under both 31 U.S.C. § 3720A and relevant regulations before referring plaintiffs loan to Treasury for offset. DOE properly accepted assignment of plaintiffs defaulted loan in 1984, and DOE sent plaintiff a notification letter on August 18, 2007. Plaintiff did not file a timely request for review, although DOE did consider both plaintiffs objections to collection attempts and plaintiffs untimely request for review. DOE certified that it had made reasonable attempts to collect the debt and that it had followed other Treasury regulations. Plaintiff has produced no meaningful contrary evidence. Defendant is therefore entitled to summary judgment.
CONCLUSION
For the reasons stated above, we grant defendant’s renewed motion for summary judgment and deny plaintiffs cross-motion for summary judgment. The Clerk shall enter final judgment for defendant and dismiss the complaint with prejudice. No costs.
. A more detailed background for the case may be found in our prior opinion. See Kipple, 102 Fed.Cl. at 774-75.
. We refer throughout to exhibits attached to the defendant’s renewed motion for summary judgment and plaintiff’s cross-motion for summary judgment.
. It was plaintiff's obligation to maintain a current address on record. See Pl.’s Ex. 3 at 2; *656Def.’s Ex. 2 at 16.
. The Treasury has enacted various other regulations for TOP. See 26 C.F.R. § 301.6402-6(b) (2007); 31 C.F.R. §§ 285.2, .5 (2007); see also 31 U.S.C. § 3720A(d) (allowing Treasury to regulate referrals); 26 U.S.C. § 7805(a) (2006) (allowing Treasury to regulate anything authorized in the IRC); 26 U.S.C. § 6402 (2006) (authorizing tax refund offsets, which allows Treasury to regulate them under § 7805). These regulations, which further specify the requirements of 31 U.S.C. § 3720A, either have been satisfied or do not apply. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218293/ | OPINION AND ORDER
LETTOW, Judge.
The United States (“the government”) claims that Sikorsky Aircraft Corporation (“Sikorsky”) owes the government approximately $80 million, stemming from the accounting method for indirect costs in place at Sikorsky from 1999 to 2005. See Sikorsky Aircraft Corp. v. United States, 102 Fed.Cl. 38, 40 (2011). According to the government, Sikorsky’s accounting method misallocated *660overhead costs to Sikorsky’s government contracts in contravention of the Cost Accounting Standards (“CAS”) set out at 48 C.F.R. (“FAR”) Chapter 99. Sikorsky denies that its accounting practices were ever noncompliant and has also raised affirmative defenses to the government’s claim. At issue presently are the government’s motions for summary judgment on two of those affirmative defenses. First is Sikorsky’s affirmative defense that the government’s claim is barred by the six-year statute of limitations found in the Contract Disputes Act of 1978 (“CDA”). See 41 U.S.C. § 7103(a)(4)(A). Sikorsky’s defense essentially is that the government knew of the purported CAS violation by 1999, so its claim asserted in 2008 came too late. The government’s motion contends that its claim did not accrue until either 2004, when the contracting officer monitoring Sikorsky received an audit showing a potential violation, or 2008, when the contracting officer completed all the administrative steps necessary before bringing the government’s claim. The government’s second motion relates to Sikorsky’s affirmative defense that an earlier accord and satisfaction precludes the government’s claim. According to this defense, in 2005 Sikorsky and the government’s contracting officer struck a deal: Sikorsky agreed to change its accounting system in 2006, and the officer agreed not to pursue any possible noneompliance attributable to the system in place from 1999 to 2005. The government’s motion contends that there was no such agreement, or if there was, that it did not extend to cost impacts prior to 2006. Both of the government’s motions have been briefed and argued and are now ready for disposition.1
BACKGROUND
I. The Legal Framework
The government’s motions rely on the statutes and regulations governing the initiation and resolution of contract disputes between the federal government and its contractors. In particular, the briefs respecting the motions address at length the provisions regulating the duties of federal contracting officers. Many of the events occurring prior to the present litigation, especially the actions of various government employees, become somewhat understandable when viewed as following — or not following, as the case may be — the processes set out by these statutes and regulations.
The overarching statute in the present dispute is the CDA, codified at 41 U.S.C. §§ 7101-7109.2 Contractors and the government both can submit claims under the CDA See 41 U.S.C. § 7103. Initially, a claim is presented to or by a contracting officer, who is obliged to render a written decision on the claim. 41 U.S.C. § 7103(a)(1), (3). A contractor may appeal a contracting officer’s decision on a claim to the proper board of contract of appeals within 90 days, or, as was done here, bring an action in this court within one year. Id. § 7104; see also 28 U.S.C. § 1491(a)(2).3 Concomitantly, if a contractor or the government fails to obtain a contracting officer’s written decision, then this court is without jurisdiction to hear the underlying claim. See Raytheon Co. v. United States, 105 Fed.Cl. 236, 286-87, 297-98 (2012).
Crucially, the CDA sets out a statute of limitations for the initial submission of a claim. “Each claim by a contractor against the [fjederal [government relating to a con*661tract and each claim by the [f]ederal [government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A). The CDA itself does not define “accrual,” but it is defined in the FAR, Chapter 1, Part 33. See Raytheon Co. v. United States, 104 Fed.Cl. 327, 330-31 (2012); cf. H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564 (Fed.Cir.1995). According to the regulation:
Accrual of a claim means the date when all events, that fix the alleged liability of either the [g]overnment or the contractor and permit assertion of the claim, were known or should have been known. For liability to be fixed, some injury must have occurred. However, monetary damages need not have been incurred.
FAR § 33.201.
FAR Part 33 also sets out the general procedures the government must follow when a potential claim has accrued. “[Contracting officers are authorized, within any specific limitations of their warrants, to decide or resolve all claims arising under or relating to a contract subject to the [CDA].” FAR § 33.210. “The [government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim.” FAR § 33.204. However, if a claim by or against a contractor is submitted and it “cannot be satisfied or settled by mutual agreement!,] ... a decision [by the contracting officer] on the claim is necessary.” FAR § 33.211(a). In accord with the CDA’s statute of limitations, “[t]he contracting officer shall issue a written decision on any [g]overnment claim initiated against a contractor within 6 years after accrual of the claim, unless the contracting parties agreed to a shorter time period.” FAR § 33.206(a).
FAR Part 30 establishes procedures to be followed in the administration of contracts subject to the CAS.4 First, for such contracts, the contractor must submit a “Disclosure Statement,” which is “a written description of a contractor’s cost accounting practices and procedures.” FAR § 9903.202-l(a) (incorporated by FAR § 30.202-1); see also FAR § 52.230-2(a)(l). An updated Disclosure Statement must also be submitted when “extensive changes require it.” FAR § 9903.202-3 (incorporated by FAR § 30.202-3); see also FAR § 52.230-6(b).5 A copy of the Disclosure Statement must be submitted to the cognizant federal auditor and to the cognizant federal agency official (“CFAO”) administering the CAS respecting the contractor’s CAS-covered contract or contracts. FAR § 9903.202-5(b) (incorporated by FAR § 30.202-5); see FAR § 30.001. “The cognizant auditor is responsible for conducting reviews of Disclosure Statements for adequacy and compliance,” FAR § 30.202-6(c), and “[t]he CFAO is responsible for issuing determinations of adequacy and compliance of the Disclosure Statement,” FAR § 30.206-6(d). A Disclosure Statement is first reviewed for adequacy and then for compliance. The auditor “[c]onduct[s] a detailed compliance review to ascertain whether or not the disclosed practices comply with [the CAS and] ... [a]dvise[s] the CFAO of the results.” FAR § 30.202-7(b)(l)(i)-(ii). Based on this advisement, the CFAO “make[s] a determination of compliance or *662take[s] action regarding a report of alleged noncompliance in accordance with [FAR § ] 30.605(b).” FAR § 30.202-7(b)(2).
In the ease of an alleged noncompliance, the CFAO’s actions involve several steps. First, “[w]ithin 15 days of receiving a report of alleged noncompliance from the auditor, the CFAO shall ... [n]otify the auditor that the CFAO disagrees ... [or] [i]ssue a notice of potential noncomplianee to the contractor.” FAR § 30.605(b)(1). If a notice is issued, the contractor has 60 days to respond. FAR § 30.605(b)(2). After this time has elapsed, and in light of any response sent by the contractor, the CFAO then must “[m]ake a determination of compliance or noncompliance” and notify the contractor’. FAR § 30.605(b)(3).
This compliance determination leads to one of three further procedures. If the practice is determined to be compliant, no further action is required. Similarly, if the practice is determined to be noneompliant but has no appreciable effect on the underlying contracts — that is, “the cost impact is immaterial” — then little action is required. FAR § 30.605(b)(4). The CFAO simply urges the contractor to change the noneompliant practice and warns that if the contractor does not, then “the [gjovernment reserves the right to make appropriate contract adjustments should the noncompliance become material in the future.” FAR § 30.605(b)(4)(i)(B).
If the noncomplianee is determined to be material, however, then more steps must be followed. Initially, within 60 days of the notice of noncompliance, the contractor must submit “a description of any cost accounting practice change needed to correct [the] noncompliance.” FAR § 30.605(c)(1); see also FAR § 52.230-6(b)(4)(ii). Provided the change itself is deemed adequate and compliant, the CFAO must then take action to resolve any money potentially owed the government under the past, noneompliant' accounting practice. The CFAO first must ask the contractor for a “general dollar magnitude” or “[detailed cost-impact” proposal. FAR § 30.605(c)(2)(i)(B), (d), (f); see also FAR § 52.230-6(c)(l)-(2). Such a proposal is meant to estimate the cost impact of the noncomplianee, that is, “the total increase or decrease in contract and subcontract prices and cost accumulations.” FAR § 30.605(d)(2)(iii); see FAR § 30.605(d)(4). If the contractor fails to submit a cost-impact proposal, then the CFAO may estimate the cost impact himself and either withhold payments under the disputed contracts or “[¡issue a final decision ... and unilaterally adjust the contract(s).” FAR § 30.604Q); FAR § 30.605(i); see also FAR § 52.230-6(j). If, instead, the contractor does submit a cost-impact proposal, then either of two further actions is required. If the cost impact is shown to be immaterial, then no money is owed and the government reserves the right to make future adjustments if the noncompliance becomes material. FAR § 30.605(e) (referencing FAR 30.605(b)(4)). If the cost impact proves to be material, however, then the CFAO must “[n]egotiate and resolve the cost impact.” FAR § 30.605(e)(1); see FAR § 30.606(a)(1), (b)(1). If the CFAO and the contractor do not agree “on the amount of the cost impact or the contract adjustments,” then the CFAO must “issue a final decision ... and unilaterally adjust the contract(s).” FAR § 30.606(c)(6)(ii).
In addition to FAR Parts 30 and 33, FAR § 52.230 plays a role in CAS administration. FAR § 52.230 consists of contract clauses incorporated into CAS-covered contracts. See FAR § 30.201-4. These clauses essentially mirror some of the procedures found at FAR Part 30 by obligating the contractor to comply with the government’s requirements and requests made pursuant to its authority under FAR Part 30. Those contractual obligations include the requirements to submit a Disclosure Statement, FAR § 52.230-2(a)(l), to correct a practice found noneompliant, FAR § 52.230-6(b)(4), and to submit a cost-impact estimate when asked by the CFAO, FAR § 52.230-6(c). FAR § 52.230 also contains clauses confirming that a dispute over CAS compliance is a dispute under the CDA, FAR § 52.230-2(b); see also Raytheon, 105 Fed.Cl. at 286-87, 2012 WL 2878605, at *48 (“A government claim for an equitable adjustment under FAR [§ ] 52.230-2 is subject to the CDA.”), and that the government may issue a final decision if a contractor fails to *663submit timely a cost-impact proposal related to a noneompliance, FAR § 52.230—6(j).
II. The Facts
The government contends that no material facts exist to substantiate Sikorsky’s statute-of-limitations and aeeord-and-satisfaetion affirmative defenses. The statute-of-limitations defense depends in large part on events that occurred in 1999. The question is whether those events, which related to Sikorsky’s accounting change effective at the beginning of that year, and the government’s first audit of that change, provided notice to the government of a potential claim. In contrast, the aceord-and-satisfaction defense depends in large part on events that occurred in 2004. In 2004, the government audited Sikorsky’s accounting change a second time, and the question is whether the negotiations that followed between Sikorsky and the government resolved any potential government claim.
A. The 1999 Accounting Change, Audit, and Review
On August 13, 1998, Sikorsky submitted a revised cost-accounting Disclosure Statement to Joan R. Sherwood, its Corporate Administrative Contracting Officer (“CACO”).6 See Def.’s Mot. for Summary Judgment upon the Affirmative Defense Based upon the Statute of Limitations (“Def.’s Mot. for Judgment on Limitations Defense”) App. at 1-2. The changes disclosed would take effect on January 1, 1999. Id. App. at 2. Sikorsky did not provide a cost-impact proposal with its Disclosure Statement, stating that one would be provided separately. Id. The Disclosure Statement was reviewed for adequacy and compliance by the Defense Contract Audit Agency (“DCAA”), including Robert Boyer, a technical specialist, and A.J. O’Falt, the resident auditor. The Disclosure Statement soon passed adequacy review. See id. App. at 38-43.
The compliance review was less swift. According to handwritten notes by Mr. Boyer, on February 4, 1999 a meeting was held regarding the cost impact of Sikorsky’s accounting change. See Pl.’s Opp’n to Def.’s Mot. for Judgment on Limitations Defense (“Pl.’s Opp’n to Judgment on Limitations Defense”) Ex. E, at 1. The notes state that present at the meeting were Sikorsky representatives, DCAA officials including Messrs. Boyer and O’Falt, and the CACO, Ms. Sherwood. Id. Mr. Boyer wrote that the cost impact of the accounting change appeared to be $11.8 million in 2001 and $54.1 million in 2008, and that he “emphasized that total cost-impact 1999-2003 per [Sikorsky] is $140 million increased costs for the [government].” Id. Ex. E, at 3. Mr. Boyer also wrote, “Auditor showed these figures to [C]ACO at meeting.” Id.
On April 22, 1999, DCAA submitted to Sikorsky a draft audit of the revised Disclosure Statement. Def.’s Mot. for Judgment on Limitations Defense App. at 44. The draft audit found that Sikorsky’s revised accounting practice was “in noncompliance with CAS 418,” id. App. at 46, resulting in costs to the government of approximately $5 million in 2001 and $32 million in 2008, id. App. at 48; see also Pl.’s Opp’n to Judgment on Limitations Defense Ex. B (Dep. of Robert Boyer (July 20, 2011)), at 185:15 to 186:4. Sikorsky responded to the draft audit on June 28, 1999. Def.’s Mot. for Judgment on Limitations Defense App. at 62-63. Sikorsky wrote that its accounting change would have resulted in an increased cost to the government of approximately $1.7 million in 1998. Id. App. at 62. Sikorsky also wrote, “As discussed during our last meeting, it is recommended that during the latter part of this year we reassess the [accounting change] to determine the extent of the impact on future years. We will then make a determination regarding future impacts.” Id. App. at 63.
On July 22, 1999, DCAA. issued its final audit and a supplemental audit of Sikorsky’s accounting change. The audit concluded:
Our audit procedures disclosed no instances [of] noncompliance with CAS 418. However, instances of noncompliance not *664detected during this audit may be discovered during our continuous audit of the contractor’s cost accounting practices.
This opinion is primarily based on the fact that there is no material impact on CAS covered contracts for CY[, ie., calendar year] 1999 due to the [accounting] change....
... DCAA and the contractor have agreed to reassess the impact of this change on future years during the last half of CY 1999. The future production of RAH-66 Commanehe [sic] and S-92 helicopters coupled with Sikorsky’s announced and unannounced restructuring plans may alter our opinion regarding the present-immateriality of this change on CAS covered contracts.
We accordingly recommend that you [Ms. Sherwood] notify Sikorsky that our opinion regarding its compliance with CAS 418 is based on the fact that its above-described cost accounting change does not at this time result in a material impact on CAS covered contracts. Further, should there be a shift due to the type or mix of future business or restructuring, we reserve the right to reopen this issue.
Def.’s Mot. for Judgment on Limitations Defense App. at 67; see also id. App. at 83. Accordingly, Ms. Sherwood determined that the revised Disclosure Statement was “both adequate and compliant with the caveat that a condition that could result in a potentially material CAS 418 noncompliance will be continually monitored and may require redress in the future.” Id. App. at 64. Ms. Sherwood also requested that Sikorsky submit a cost-impact proposal within 60 days. Id.
On February 23, 2000, Sikorsky submitted its cost impact proposal to Ms. Sherwood. The proposal reported a net benefit to the government of $2.35 million through 2003. Def.’s Mot. for Judgment on Limitations Defense App. at 98-99. The proposal was revised by Sikorsky on September 15, 2000, with a slightly decreased net benefit to the government of $2.34 million through 2003. Id. App. at 115. The documentary record before the court does not indicate what action, if any, Ms. Sherwood took in response to Sikorsky’s proposal.
B. The 2004. Audit and Alleged Agreement
On June 20, 2001, Mr. Edward Weisman replaced Ms. Sherwood as the government’s CACO for Sikorsky. Def.’s Mot. for Judgment on Limitations Defense App. at 155. A little over a year later, on August 22, 2002, DCAA began preparing a second compliance review of Sikorsky’s accounting change. PL’s Opp’n to Judgment on Limitations Defense Ex. K, at 1. The second audit took an inordinate two years and two months to complete and was finally issued on October 29, 2004. Def.’s Mot. for Judgment on Limitations Defense App. at 132. The audit found that Sikorsky’s changed accounting practice was “in potential noncomplianee” with CAS 418, id. App. at 133, noting that a fully compliant accounting practice could “re-sulte in an] allocation [to government contracts that] may be materially different,” id. App. at 139. The audit did not ascertain the materiality of the potential noncompliance because “it would be difficult or nearly impossible for the auditor to determine” certain aspects of Sikorsky’s costs. Id. App. at 144; see also id. App. at 142 (citing AiResearch Mfg. Co., ASBCA No. 20998, 76-2 BCA ¶ 12,-150, 1976 WL 2047, (holding that the ASBCA has jurisdiction over a CAS noncompliance claim, despite the government’s omission of a cost-impact estimate, when the contractor’s noneompliant accounting is the very reason a cost impact cannot be estimated)).
Sikorsky’s response to an earlier draft of the 2004 audit, incorporated into the final 2004 audit, took issue with the government’s failure to estimate the materiality of the alleged potential noncompliance. See Def.’s Mot. for Judgment on Limitations Defense App. at 153. The response also argued that “[t]he current method ... was approved in 1999. This audit report does not demonstrate any change in business environment from 1999 to 2004 that warrants a change.” Id. Nevertheless, Sikorsky noted that it was considering a change to its allegedly noncom-pliant practice as part of a much broader accounting overhaul slated to go into effect on January 1, 2006. Id.
From here, the parties’ accounts diverge. Sikorsky avers that its representative, Mr. Joseph Chancio, negotiated with Mr. Weis-*665man over the course of 2005 to resolve the potential noncomplianee. Eventually, according to Sikorsky, the parties made an agreement: Sikorsky would change its accounting practice on January 1, 2006, which change would result in substantial savings to the government, and in exchange, the government would consider the noncomplianee issue resolved. See Pl.’s Opp’n to Def.’s Mot. for Summary Judgment on the Accord & Satisfaction Defense (“Pl.’s Opp’n to Judgment on Accord Defense”) at 3-8. The government differs, averring that, while Mr. Weisman may have approved of Sikorsky’s changes going forward, he never waived any past money owed the government for alleged noncomplianee. See Def.’s Mot. for Summary Judgment upon the Affirmative Defense Based upon Accord & Satisfaction (“Def.’s Mot. for Judgment on Accord Defense”) at 9-12. The difficulty in ascertaining what actually happened in 2005 is compounded by the fact that Mr. Weisman died shortly after this suit was filed.
Despite this uncertainty, the available evidence provides some outline of what took place in 2005. Mr. Weisman wrote an e-mail to government personnel on July 20, 2005, stating that he “wanted to sit down with [Mr. Chaneio] and clear the air as to what we wanted, so there would be no questions down the road as to our issues.... [W]e need this meeting, so everyone’s on the same sheet of music.” Pl.’s Opp’n to Judgment on Accord Defense Ex. G. Thereafter, one or more meetings were held involving at least Mr. Chaneio and Mr. Weisman. After this meeting or meetings, on August 15, 2005, Mr. Weisman issued a memorandum to file purporting to resolve and dispose of DCAA’s noncomplianee finding. See Pl.’s Opp’n to Judgment on Accord Defense Ex. I, at 1. Mr. Weisman wrote that he “concurs with DCAA’s position that [Sikorsky’s] current practice ... creates a potential noncompli-anee with CAS 418.” Id. Ex. I, at 4. However, he continued, “[w]hile concurring with DCAA’s position, the CACO will not require [Sikorsky] to make the recommended changes at this time. In view of the impending implementation of the new [accounting] system, the CACO agrees with Mr. Chaneio that it is not cost effective to force these changes into ‘legacy’ systems which will be shut down in just a few months.” Id. Ex. I, at 4-5. This determination was communicated in a letter to Sikorsky soon after. See id. Ex. J. The letter stated in part:
[I]n view of the impending implementation of the [new accounting] system in January, 2006, and your agreement to establish a Material Handling rate under the new system, the CACO has determined that it would be neither cost-effective, nor of any substantial benefit to the [government, to require implementation of the changes recommended by DCAA at this time.
Id. Mr. Weisman also filled out forms marking the 2004 audit variously as “closed,” “dis-positioned,” and “resolved.” Id. Ex. K, at 1, 3; see also id. Ex. M (Dep. of Frank Colan-dro (March 30, 2011) (“Colandro Dep.”)), at 248:21 to 249:8.
Mr. Chaneio has averred that Mr. Weis-man agreed that the noncomplianee issue “would be closed if we made the change [to the 2006 accounting system], and there would be no request for any cost impact determination for the periods of 1999 to 2005.” Pl.’s Opp’n to Judgment on Accord Defense Ex. F (Dep. of Joseph Chaneio (June 3, 2011) (“Chaneio Dep.”)), at 81:3-5. Similarly, Sikorsky’s former CFO, Mr. Richard Pierpont, has stated that “[i]t was my understanding that the government was not ... going to pursue any damages against Sikorsky for what they alleged was a noncomplianee.” Id. Ex. P (Dep. of Richard Pierpont (April 5, 2011)), at 50:2-4.
Government officials deny these assertions, reciting recollections of statements that constitute hearsay, at least in part. Mr. Frank Colandro, who succeeded Mr. Weisman as the government’s CACO for Sikorsky, recounted an alleged conversation that occurred sometime in 2006 or 2007, after he had taken over as CACO. See Colandro Dep. at 216:1-5; cf. id. at 274:1-8. This conversation, in the presence of Mr. Weisman and Mr. Colandro,
was precipitated by the fact that I picked up the CAS noncompliance folder [containing materials related to the Sikorsky noncompliance and audit] and I did not see *666that it had ... gone through fruition, and there was no determination of materiality, ... there was no cost impact-And [Mr. Weisman] said I forgot to ask for the cost impact. There was no deal to waive any cost impact.
Id. at 215:13-22; see also id. at 248:5-7 (“[W]e realized that although the issue was dispositioned, it wasn’t closed.”); id. at 270:11-19 (same). Similarly, Ms. Sherwood, who had preceded Mr. Weisman as CACO, stated that she did not recall Mr. Weisman ever stating that there was a “deal” between the government and Sikorsky. See Pl.’s Opp’n to Judgment on Accord Defense Ex. B (Dep. of Joan Sherwood (May 10, 2011)), at 104:6 to 105:14. Contra Colandro Dep. at 213:1-21 (Colandro’s indication that Sherwood had spoken with Weisman, and that Weisman had told her that “there was a deal,” id at 213:10).
Regardless of the alleged agreement’s existence and scope, Sikorsky continued with the implementation of its new accounting system. It filed a revised Disclosure Statement on October 31, 2005, effective January 1, 2006. Pl.’s Opp’n to Judgment on Accord Defense Ex. Q., at 2. DCAA issued an audit on February 15, 2006, finding the revised Disclosure Statement adequate and compliant. Id. Ex. S at 3. Six days later, Mr. Weisman signed off on the revised Disclosure Statement as adequate and compliant. Id. Ex. R. Sikorsky later estimated the cost impact of the 2006 accounting change as involving ten changes benefiting the government for $58 million, and one change, ascribed to the CAS noncomplianee issue, resulting in harm to the government of either $19 million or $35 million. See Def.’s Mot. for Judgment on Accord Defense App. at 168, 171, 189. It is unknown when or if Sikorsky submitted this cost-impact information to the government. See id. App. at 182; of. Pl.’s Opp’n to Judgment on Accord Defense Ex. W, at 3.
C. The Government’s Claim
Mr. Colandro succeeded Mr. Weisman as the government’s CACO for Sikorsky in June 2006. Pl.’s Opp’n to Judgment on Accord Defense at 7. Mr. Colandro apparently had some knowledge previous to this time of an accounting dispute involving Sikorsky. However, it was not until February 2007 that Mr. Colandro became aware of the 2004 audit finding Sikorsky’s practice noncompliant. See Def.’s Mot. for Judgment on Limitations Defense App. at 159; see also Pl.’s Opp’n to Judgment on Accord Defense Ex. L (e-mail from Boyer to Colandro (Feb. 13, 2007)), at 2 (“[T]he contractor was in potential noncompliance with CAS 418 ... during the period prior to January 1, 2006. Off hand, I do not recall if Ed Weisman ever made a final finding of noncompliance.... I do not know what the impact of the revised accounting practice is on CAS covered contracts.”).
Soon thereafter, Mr. Colandro began pursuing a potential claim against Sikorsky. On April 5, 2007, he sent Sikorsky a notice of potential noncompliance, writing that “[although you ceased following the noncompli-ant practice at issue ..., the noncompliance was not fully processed in accordance with FAR [§ ] 30.605.” Pl.’s Opp’n to Judgment on Accord Defense Ex. T. On May 30, 2007, Sikorsky responded, stating that “since the [2006 accounting] change was implemented as agreed to and the [C]ACO indicated that the matter was closed[,] it is our position that there is no materiality for this cited noncompliance. In conclusion we hope this resolves the noncomplianee practice cited in your letter and that a determination of immateriality will be made by your office.” Id. Ex. U, at 2.
Over a year later, on November 6, 2008, Mr. Colandro issued a final determination pursuant to FAR § 30.605(b)(3)(ii), that Sikorsky’s cost accounting practice from 1999 to 2005 was noncompliant. Def.’s Reply to Pl.’s Opp’n to Judgment on the Limitations Defense (“Defi’s Reply re Limitations Defense”) App. at 1. The final determination also requested a cost-impact proposal, on or before November 28, 2008, “containing the impact of this noncompliance from January 1, 2003.” Id. App. at 3. Sikorsky declined to provide a cost-impact proposal. Pl.’s Opp’n to Judgment on Accord Defense Ex. V, at 3. Then, on December 11, 2008, Mr. Colandro issued a final decision determining that Sikorsky’s accounting practice was noncompli-ant from 1999 to 2005, and that the noncompliance became material in 2003. Id. Ex. V, *667at 4. The decision also asserted a government claim for approximately $80 million. Id. Sikorsky filed suit in this court soon thereafter.
STANDARDS FOR DECISION
The government has moved for summary judgment upon Sikorsky’s statute-of-limitations and aceord-and-satisfaction defenses. The court will grant summary judgment if the government shows “that there is no genuine dispute as to any material fact and the [government] is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the Court of Federal Claims. A material fact is one “that might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of material fact exists when the finder of fact may reasonably resolve the dispute in favor of either party. Id. at 250-51,106 S.Ct. 2505.
The moving party bears “the initial responsibility of identifying the legal basis of its motion, and of pointing to those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.” Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043,1046 (Fed.Cir.2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Where the nonmovant will bear the burden of persuasion at trial respecting the claim or defense at issue, as is the ease here with Sikorsky’s affirmative defenses, the movant may meet its summary judgment burden in either of two ways. The movant may either provide “evidence that negates an essential element of the opposing party’s case” or show “that the evidence on file (such as pleadings, depositions, and admissions) establishes no material issue of fact and that the opposer will not be able to prove an essential element of its case.” Vivid Techs., Inc. v. American Sci. & Eng’g, Inc., 200 F.3d 795, 807 (Fed.Cir.1999) (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; 2 Robert L. Haig, Business and Commercial Litigation in Federal Courts § 25.3(d)(1) (1998)). The nonmovant may defeat summary judgment by coming forward with material facts of its own, more than “[m]ere denials or conclusory statements,” indicating “an evidentiary conflict created on the record. Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed.Cir.1984). In evaluating the evidence presented, the court draws all reasonable inferences from the underlying facts in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).
ANALYSIS
I. Sikorsky’s Statute-of-Limitations Affirmative Defense
The government’s first motion seeks summary judgment on Sikorsky’s affirmative defense based upon the statute of limitations. The Contract Disputes Act requires “each claim by the [fjederal [gjovernment against a contractor relating to a contract [to] be submitted within 6 years after the accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A). The parties do not dispute that the government submitted its claim on December 11, 2008, when Mr. Colandro issued his final decision. Thus, the issue is whether the government’s claim accrued before December 11, 2002.
“Accrual of a claim means the date when all events, that fix the alleged liability of ... the contractor and permit assertion of the claim, were known or should have been known.” FAR § 33.201. The government presents two arguments for why its claim accrued after December 11, 2002. The government’s first argument is a legal one: the government contends that the contracting officer had to follow the procedures set out in the parties’ contracts, as listed in FAR § 52.230, before the contract would “permit assertion of the claim.” Those steps were not completed until November 28, 2008, so the government posits that was the date when the claim accrued. The government’s second argument is a factual one: the government contends that it did not have actual or constructive notice of a potential claim until October 29, 2004, when the DCAA reported a potential noncomplianee in its second audit.
*668A. The Relationship Between Claim Accrual and Administrative Procedures
The government contends that under the terms of its contracts with Sikorsky it could not assert a claim any earlier than November 28, 2008. For this proposition, the government relies on a set of Supreme Court and Court of Claims cases issued between 1878 and 1967. These cases hold, in essence, that contractors must follow the dispute resolution proceedings, if any, set out in their contracts, and that a claim assertable in court does not accrue until those proceedings are completed. See Def.’s Reply re Limitations Defense at 9-16 (citing, e.g., Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967)). The government argues that this doctrine applies here because Sikorsky’s contracts include the clauses set out at FAR § 52.230. In the government’s view, when the CFAO issued a determination of noncompliance, Sikorsky was required to “[sjubmit a description of the change necessary to correct a failure to comply with an applicable CAS.” FAR § 52.230-6(b)(4). Also, “[wjhen requested by the CFAO, [Sikorsky was obliged to] submit on or before [the] date specified by the CFAO” a cost-impact estimate. FAR § 52.230-6(c); see FAR § 52.230-6(d) to (i). Otherwise, the CFAO could issue a final decision. FAR § 52.230 — 6(j). In this case, the government reasons, “the contracting officer directed Sikorsky to provide a cost-impact calculation by a specified time: November 28, 2008. When Sikorsky failed to meet this deadline, the [gjovernment’s right to assert a claim accrued.” Def.’s Reply re Limitations Defense at 9 (internal citation omitted).
Sikorsky responds by arguing that the cases cited by the government were superseded by the passage of the CDA in 1978. See PL’s Surreply to Def.’s Mot. for Summary Judgment on the Statute of Limitations Defense at 4-7. Sikorsky also argues that the contract clauses found at FAR § 52.230 speak only to a contractor’s duties under the CAS regime and say nothing about when a claim accrues. See id. at 7-8.
1. The applicability of Crown Coat and its predecessors.
The government relies on Crown Coat, 386 U.S. 503, 87 S.Ct. 1177, for the principle that a claim under a government contract does not accrue until “the completion of the administrative proceedings contemplated and required by the provisions of the contract.” Id. at 511, 87 S.Ct. 1177. While other recent cases have held that a government CAS claim accrues directly and straightforwardly when the government should have known of its potential claim, none of these cases addressed the government’s present argument based on Crown Coat. See Raytheon, 104 Fed.Cl. at 330-31, 2012 WL 1072294, at *3; Boeing Co., ASBCA No. 57490, 12-1 BCA ¶ 34,916, 2012 WL 176315, at *5; McDonnell Douglas Servs., Inc., ASBCA No. 56568, 10-1 BCA ¶ 34,325, 2009 WL 4774620, at *7-8. The court accordingly will examine whether adoption of the CDA in 1978 vitiated the precedential viability of the Crown Coat line of cases in situations where the CDA applies. The parties agree that that case and its progenitors retain vitality in an appropriate situation where' the CDA does not apply or is modified by other statutes. Cf, e.g., Dalton v. Southwest Marine, Inc., 120 F.3d 1249, 1252 (Fed.Cir.1997) (two-year statute of limitation in Suits in Admiralty Act, as incorporated by the CDA, tolled during administrative proceedings); New Valley Corp. v. United States, 119 F.3d 1576, 1580 (Fed.Cir.1997) (requiring exhaustion of contract-prescribed remedies in non-CDA suit).
As an initial matter, the contract clauses and the statutory framework in Crown Coat were different from those in the present case. The relevant contract clause in Crown Coat required the contractor to raise a dispute with its contracting officer. If the contracting officer denied relief, then the contractor had 30 days to appeal the contracting officer’s decision to the relevant board of contract appeals. If the board denied relief, then the contractor could bring a claim in district court or the Court of Claims under 28 U.S.C. § 1346,7 subject to the six-year *669statute of limitations for claims against the government set out in 28 U.S.C. § 2401(a).8 The Supreme Court noted that under this scheme, “final administrative action [before the board of contract appeals], which the claimant must await, may occur more than six years after the completion of the contract. When it does, the claimant would be time-barred if the six-year period is measured from the date of final performance.” Crown Coat, 386 U.S. at 517-18, 87 S.Ct. 1177. Therefore, given this untenable alternative, the Court held that accrual would await the completion of mandatory administrative procedures. Id. at 522, 87 S.Ct. 1177.
Tellingly, the Supreme Court in Crown Coat differentiated the statutory scheme for claims brought under the Suits in Admiralty Act. That statute “requires actions to be brought within two years after the cause of action arises.” Crown Coat, 386 U.S. at 516, 87 S.Ct. 1177 (internal quotation marks omitted). And “while suit was permitted only if a claim had been ‘disallowed,’ the applicable regulations provided that if a claim was not rejected within 60 days after filing, it would be deemed to have been administratively disallowed and the claimant would be free to enforce his claim. There was no chance for administrative action to consume the entire limitations period and therefore bar all resort to the courts.” Id. at 517, 87 S.Ct. 1177 (emphasis added).
The Contract Disputes Act of 1978 enacted a regime that bears little resemblance to the “hodgepodge of overlapping, confusing, and often conflicting procedures and remedies” at issue in Crown Coat. Robert T. Peacock & Peter D. Ting, Contract Disputes Act Annotated at i (1998); see Bromley Contracting Co. v. United States, 10 Cl.Ct. 668, 671 (1986). First, and most obviously, the CDA, unlike the disputes clause in Crown Coat, contains two statutes of limitations. The first governs administrative timing and requires a claim to be submitted to or by a contracting officer “within 6 years after the accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A). The second governs post-claim timing, which requires appeal of a claim to an agency board within 90 days, id. § 7104(a), or suit in the Court of Federal Claims within one year, id. § 7104(b)(3). It would be most odd to hold that Crown Coat applies to the first, six-year limitations period, when the CDA specifically provides a second, 90-day or one-year statute of limitations to file suit after the completion of mandatory administrative proceedings. Cf. Southwest Marine, 120 F.3d at 1252 (holding that the two-year statute of limitations for appeals of maritime contracts under the CDA is tolled during administrative proceedings, but not the initial six-year statute of limitations of the CDA). Additionally, similar to the Suits in Admiralty Act as described in Crown Coat, the CDA deems a claim denied when the contracting officer fails to act within either 60 days or a reasonable time. 41 U.S.C. § 7103(f)(5). Upon the contracting officer’s failure to act, the claim can be asserted in court, thus precluding the possibility of “administrative action ... consuming] the entire limitations period.” Crown Coat, 386 U.S. at 517, 87 S.Ct. 1177; see Bromley, 10 Cl.Ct. at 670 (The CDA “brought a provident change to the resolution of government contract disputes” by giving the contractor “the option of direct access to the United States Claims Court rather than appealing the contracting officer’s decision to the agency’s contract appeals board.”).
The rationale behind Crown Coat was superseded by the CDA for a second reason: the CDA gives the government complete control over when it may assert a claim. The *670government, just like a contractor, is not required to wait on a board of contract appeals. See 41 U.S.C. § 7103(a)(3), (a)(4)(A). And while the government may have its own internal review procedures that it must follow prior to submitting a claim, nothing in the CDA mandates such procedures, nor can such procedures delay accrual of a claim. See United States v. Commodities Export Co., 972 F.2d 1266, 1271 (Fed.Cir.1992).9
2. Claim accrual and the CAS regulations.
Even if Crown Coat were to apply to this ease, which it does not, there is nothing in the contracts between Sikorsky and the government that would delay the accrual of the government’s claim. The government’s CAS claim depends on the contract clauses of FAR § 52.230. Under certain circumstances, “[wjhere the parties ha[ve] agreed in advance to a condition on the filing of a suit, the ... [e]ourt [will give] effect to that agreement by delaying accrual of the right of action.” Commodities Export, 972 F.2d at 1271. “In this ease, however, the parties have not agreed to conditions on institution of a suit” that would delay accrual. Id.
The government first points to certain contract provisions found at FAR § 52.230-2. These provisions state:
(a) [T]he Contractor, in connection with this contract, shall — -
(5) Agree to an adjustment of the contract price or cost allowance, as appropriate, if the [c]ontractor ... fails to comply with an applicable Cost Accounting Standard ... and such failure results in any increased costs paid by the United States.
(a) If the parties fail to agree whether the Contractor ... has complied with an applicable CAS ... and as to any cost adjustment demanded by the United States, such failure to agree will constitute a dispute under the Contract Disputes Act.
FAR § 52.230-2(a), (a)(5), (b). The government contends that FAR § 52.230-2(a)(5) requires the contractor and the United States to “negotiate” an adjustment according to the procedures set out in FAR § 52.230-6, and that a claim only accrues “if the parties [still] fail to agree” after those steps are taken. See Def.’s Reply re Limitations Defense at 7-8 (quoting FAR 52.230-2(b)).
The government misconstrues these provisions. They do not address when a claim *671accrues. They do not require negotiation before a claim could arise. They only confirm that a failure to agree is a dispute that falls within the ambit of the CDA. As such, the provisions make plain the two alternatives available when a noncompliance occurs: if the contractor agrees with the resulting adjustment, it must pay; if the contractor does not agree, it must defend against a claim.
Turning to the more detailed provisions set out in FAR § 52.230-6, these do not constitute a set of conditions that must be satisfied prior to filing suit. The government cites certain contract clauses that instruct the parties of actions they may or must take under particular circumstances. See Def.’s Reply re Limitations Defense at 8-9 (citing FAR § 52.230-6(b)(4) (“[The contractor must sjubmit a description of the change necessary to correct a failure to comply with an applicable CAS.”); FAR § 52.230-6(c) (“When requested by the CFAO, [the contractor shall] submit on or before a date specified by the CFAO” a cost-impact proposal.); FAR § 52.230-6(j)) Cj)(2) (“If the [c]ontraetor does not submit [a description of a correcting change or a cost-impact proposal, as applicable,] within the specified time ..., the CFAO may ... [i]ssue a final decision.”)). These provisions, however, whether viewed together or in isolation, do not comprise the kind of coherent claims resolution process contemplated by the contract clauses examined in Crown Coat and its predecessors. Compare FAR § 52.230-6, with Crown Coat, 386 U.S. at 505, 87 S.Ct. 1177, United States v. Joseph A. Holpuch Co., 328 U.S. 234, 236, 238, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946), and Nager Elec. Co. v. United States, 368 F.2d 847, 858-59 (Ct.Cl.1966). The contract clauses alone, for example, do not explain when or how the CFAO should issue a determination of noncompliance, see FAR § 52.230-6(b)(4), when or under what circumstances the CFAO should request a cost-impact proposal, see FAR § 52.230-6(c), or what the CFAO should do if the contractor does submit a cost impact showing a loss to the government. Implicitly, a coherent whole could be derived from these contractual provisions — but only by reference to the machinery at FAR Part 30. Nonetheless, an agency’s self-imposed, internal regulations are invisible for claim accrual purposes because they are not part of the contract. See Commodities Export, 972 F.2d at 1271. Thus, the clauses at FAR § 52.230, viewed in vacuo as they must be, do not serve as a set of preconditions to filing suit that would serve to delay the statute of limitations.
Furthermore, a delayed accrual rule would be incompatible with the intended functioning of CAS administration. See United States v. Memphis Cotton Oil Co., 288 U.S. 62, 69, 53 S.Ct. 278, 77 L.Ed. 619 (1933) (Accrual of a cause of action “must keep in view the realities of administrative practice, for its effect will be to regulate the conduct of administrative officers.”). FAR § 52.230-6(b)(4) requires a contractor to submit changes to correct a CAS noneompliance within 60 days of receiving a determination of noncompliance. Likewise, FAR § 52.230-6(c) requires a contractor, if asked, to submit an estimate of the cost impact of a noncompliance within a time set by the CFAO. If the contractor fails to do either within the appropriate time, then FAR § 52.230 — 6(j) permits the government’s contracting officer to issue a final decision. If a government claim were to accrue only at this point, then the CFAO could delay the statute of limitations indefinitely simply by refraining from issuing a determination of noncompliance or from requesting a cost impact. “This court cannot, however, permit a single party to postpone unilaterally and indefinitely the running of the statute of limitations.” Commodities Export, 972 F.2d at 1271; see also Raytheon, 104 Fed.Cl. at 330 n. 4, 2012 WL 1072294, at *3 n. 4 (“Contracting parties cannot establish a statute of limitations longer than that set forth in the Contract Disputes Act.”) (citing FAR § 33.206(b)).10
*672B. The Accrual Date of the Government’s Claim
The CDA’s statute of limitations reflects the general rule that “a cause of action accrues when all events necessary to state a claim have occurred.” Chevron U.S.A., Inc. v. United States, 923 F.2d 830, 834 (Fed.Cir.1991) (citing Kinsey v. United States, 852 F.2d 556, 557 (Fed.Cir.1988)). Thus, a government claim accrues under the CDA, as defined in the FAR, “when all events, that fix the alleged liability of ... the contractor and permit assertion of the claim, were known or should have been known.” FAR § 33.201.
“To determine when liability is fixed, we start by examining the legal basis of the particular claim.” Gray Personnel, Inc., ASBCA No. 54652, 06-2 BCA ¶ 33,378, 2006 WL 2390292, at *8; see also, e.g., Franconia Assocs. v. United States, 536 U.S. 129, 141, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002) (applying “applicable principles of general contract law” to determine when a government’s claim for breach of contract accrued (internal quotation marks omitted)). Here, the legal basis for the government’s claim is Sikorsky’s alleged noncomplianee with CAS 418. For a CAS 418 noncompliance claim to accrue, two conditions must be met. First, there must be a violation of CAS 418, which requires both that an indirect cost pool of a contractor contain costs that “do not have the same or a similar beneficial or causal relationship to cost objectives” and that, “if the costs were allocated separately, the resulting allocation would be materially different.” FAR § 9904.418 — 50(b)(2); see Sikorsky, 102 Fed.Cl. at 59-60.11 Second, the government must have actual or constructive notice of the CAS 418 violation.
The parties agree that the government asserted its claim in this ease when the contracting officer, Mr. Colandro, issued his final decision demanding payment on December 11, 2008. Thus, for the government to succeed on summary judgment, it must show that the government did not know, and should not have known, of its claim any earlier than December 11, 2002. Put in oth*673er terms, the question is this: when did the relevant government officials know, or when should they have known, that in their view Sikorsky’s accounting practices were materially noncompliant?
Whether events have occurred to fix a party’s liability “is determined under an objective standard; a [claimant] does not have to possess actual knowledge of all the relevant facts in order for the cause of action to accrue.” Fallini v. United States, 56 F.3d 1378, 1380 (Fed.Cir.1995) (citing Menominee Tribe v. United States, 726 F.2d 718, 721 (Fed.Cir.1984)). The question of when a claimant should know of its claim is a fact-bound inquiry that depends on the reasonableness of the claimant’s actions. See Holmes v. United States, 657 F.3d 1303, 1320 (Fed.Cir.2011) (citing Ingram v. United States, 560 F.3d 1311, 1315-16 & n. 1 (Fed.Cir.2009); L.S.S. Leasing Corp. v. United States, 695 F.2d 1359, 1366 (Fed.Cir.1982) (holding that a claim is suspended if “inherently unknowable” under a reasonableness standard)).
Here, there is a genuine factual dispute as to when the government was on notice of Sikorsky’s alleged CAS violation, including the necessary element that the CAS noncomplianee was material. Evidence in the record indicates that Ms. Sherwood, the CACO until June 25, 2001, may have been aware that Sikorsky’s revised accounting practice would result in a material cost impact on CAS-covered contracts.12 In particular, there is evidence of a meeting held on February 4, 1999, the subject of which was “[c]ost [i]mpact of 8/10/98 [accounting] [e]hange and [a]udit.” Pl.’s Opp’n to Judgment on Limitations Defense Ex. E, at 1. At that meeting, DCAA auditor Boyer allegedly advised Ms. Sherwood that Sikorsky’s accounting change would result in a cost impact of a number of millions of dollars in future years. See id. Ex. E, at 3. Similarly, on a draft of the 1999 audit, Mr. Boyer suggested eliminating the draft’s cost-impact estimates, writing in the margin that “cost impact figures other than these were disclosed to [CACO].” Id. Ex. F, at 7.
Beyond what Ms. Sherwood may have actually known, a factual question exists regarding what Ms. Sherwood and Mr. Weis-man, her replacement as CACO, reasonably should have known. See Holmes, 657 F.3d at 1320. First, in light of the estimates shown to Ms. Sherwood by Mr. Boyer, there is a factual question as to whether it was reasonable for Ms. Sherwood to have found that Sikorsky’s accounting practice was compliant. This is especially so given that the finding of compliance in the 1999 audit was “primarily based on the fact that there is no material impact on CAS[-]eovered contracts for [calendar year ] 1999,” but not future years. Def.’s Mot. for Judgment on Limitations Defense App. at 67 (emphasis added). Second, there is a factual question as to whether Ms. Sherwood or Mr. Weisman should have inquired further or more vigilantly monitored the unfolding results, given the information at hand. On the one hand, Ms. Sherwood, after receiving the 1999 audit, requested a cost-impact proposal from Sikorsky. Id. App. at 64. Sikorsky’s response, issued February 23, 2000 and revised September 15, 2000, indicated a net benefit to the government of about $2.3 million dollars. Id. App. at 98-99, 115. These representations would seem to belie any government notice of a potential claim. On the other hand, the 1999 audit reported that Sikorsky’s current compliance could change, depending in part on future production of military helicopters and a potential restructuring of operations by Sikorsky. Def.’s Mot. for Judgment on Limitations Defense App. at 67 (“[S]hould there be a shift due to the type or mix of future business or restructuring, we reserve the right to reopen this issue.”) (quoted more *674fully supra, at 664); see also id. App. at 83. It remains unresolved whether this report should have reasonably caused Ms. Sherwood or Mr. Weisman to inquire further. It also remains unresolved whether and when Ms. Sherwood or Mr. Weisman reasonably should have reopened the issue based on changes to Sikorsky’s helicopter production or Sikorsky’s restructuring plans. In short, genuine disputes of material fact exist related to the accrual of the government’s claim. The government’s motion to dismiss Sikorsky’s affirmative defense based upon the statute of limitations must be denied.
II. Sikorsky’s Accord-and-Satisfaction Affirmative Defense
The government’s second motion seeks to dismiss Sikorsky’s aecord-and-satisfaction affirmative defense. Sikorsky alleges that in late 2005, in response to the 2004 audit showing a potential noneompliance, it made an agreement with the government. As Sikorsky would have it, Mr. Weisman, the then-CACO, and Mr. Chancio, Sikorsky’s representative, agreed to consider the noncompliance issue resolved in exchange for Sikorsky’s decision to change its accounting practice going forward, which change would result in an alleged net benefit to the government of $95 to $100 million. See Pl.’s Opp’n to Judgment on Accord Defense at 9. The government contends that no accord and satisfaction occurred because the noncompli-anee issue allegedly was never expressly addressed.
A. The Legal Framework
“A claim is discharged by the doctrine of accord and satisfaction when ‘some performance different from that which was claimed as due is rendered and such substituted performance is accepted by the claimant as full satisfaction of his claim.’ ” O’Connor v. United States, 308 F.3d 1233, 1240 (Fed.Cir.2002) (quoting Case, Inc. v. United States, 88 F.3d 1004, 1011 n. 7 (Fed.Cir.1996)). “In its most common form, an accord and satisfaction exists as ‘a mutual agreement between the parties in which one pays or performs and the other accepts payment or performance in satisfaction of a claim or demand which is a bona fide dispute.’ ” Id. (quoting Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 176 F.2d 73, 76 (10th Cir.1949)). An effective accord and satisfaction requires four elements: “(1) proper subject matter; (2) competent parties; (3) a meeting of the minds of the parties; and (4) consideration.” Holland v. United States, 621 F.3d 1366, 1382 (Fed.Cir.2010) (quoting O’Connor, 308 F.3d at 1240). See generally Restatement (Second) of Contracts § 281 (1981).
In this case, the parties dispute only whether there was a meeting of the minds between Mr. Weisman and Mr. Chancio. Whether there was such a meeting of the minds is determined by an examination of “the totality of the factual circumstances.” Texas Instruments Inc. v. United States, 922 F.2d 810, 815 (Fed.Cir.1990). In particular, “[t]here must be accompanying expressions sufficient to make the creditor understand or to make it unreasonable for him not to understand, that the performance is offered to him as a full satisfaction of th[e] claim and not otherwise.” Thomas Creek Lumber & Log Co. v. United States, 36 Fed.Cl. 220, 243 (1996) (quoting Chesapeake & Potomac Tel. Co. v. United States, 654 F.2d 711, 716 (Ct.Cl.1981) (in turn quoting 6 Arthur L. Corbin, Corbin on Contracts § 1277 (1962))); see also Robinson Contracting Co. v. United States, 16 Cl.Ct. 676, 681 (1989) (a meeting of the minds occurs when “[t]he necessary clarity and understanding for a contractual agreement [is] evident.”), aff'd, 895 F.2d 1420 (Fed.Cir.1990) (unpublished table decision).
B. Meeting of the Minds
The government argues that there was no meeting of the minds. According to the government, Mr. Weisman could not have waived any money owed for the noncompliance because that issue was never addressed by the parties. Factually, the government asserts that “[Sikorsky] admits that the cost impact for the material overhead accounting change was never discussed with the contracting officer when the purported ‘deal’ was reached. No oral agreement is reached [on a] topic when the topic is never mentioned.” Def.’s Mot. for Judgment on Accord Defense at 2. The government also points to the regulations at FAR Part 30, which instruct *675the contracting officer to refrain from acting farther on a contractor’s potential noneompli-anee only if he finds the noneompliance immaterial. See id. at 14-15 (citing FAR § 30.602(b)(2), (e)(2); FAR § 30.605(b)(3)). Mr. Weisman never made such a finding, the government argues, which further establishes that there was no agreement resolving monies owed for the potential noneompliance. See id.
Sikorsky contends that the evidentiary record contradicts the government’s assertions. According to Sikorsky, the record shows that Mr. Weisman reached an agreement with Mr. Chancio, and the parties’ subsequent statements and conduct confirmed that they considered the CAS noncompliance issue resolved and closed. See Pl.’s Opp’n to Judgment on Accord Defense at 12-14.
1. Evidence purportedly negating a meeting of the minds.
The government first argues that Sikorsky’s agents affirmatively testified that there was no express agreement between Sikorsky and the government to waive the cost impact of the noneompliance. If the government were correct, then the government would be entitled to summary judgment on ground that it had submitted “evidence that negates an essential element of the opposing party’s [affirmative defense].” Vivid Techs., 200 F.3d at 807. The government cites the following deposition testimony of Mr. Chancio in support of its motion:
Q. ... [D]id you have any specific conversation with Mr. Weisman about the cost impact calculation for the material overhead change?
A. No. What I told Mr. Weisman ... was that we would include it in the accounting change and that we planned to submit a cost impact proposal for the entire accounting change.
I don’t recall breaking that piece out in any conversations because, again, it would be inherent that when we agreed to put it in the accounting change, that it would become part of it, of which we were required to submit the cost impact proposal.
But I do not recall specifically talking to [Mr. Weisman] ... about just a cost impact for that change.
Def.’s Mot. for Judgment on Accord Defense at 11 (Def.’s emphasis removed) (quoting id. App. at 203-04 (Chancio Dep. at 38:25 to 39:17)). The government also points to evidence purporting to show that Sikorsky calculated a noncompliance cost impact after the meetings with Mr. Weisman, further demonstrating that Sikorsky did not believe the cost-impact issue was resolved. See id. at 9-10,14.
In making its argument, the government has conflated two different cost-impact calculations required under the FAR. As Sikorsky correctly points out, there is a difference between a cost-impact proposal required to redress a CAS noneompliance and a cost-impact proposal required for an accounting change, such as the one Sikorsky made in 2006. PL’s Opp’n to Judgment on Accord Defense at 14-15. As discussed supra at 661-63, a cost-impact proposal for an alleged CAS noneompliance estimates the increased or decreased costs to the government due to that noneompliance. See FAR § 30.605(c)(2)(i)(B), (d)(4). In contrast, a cost impact for an accounting change measures the change in costs to CAS-covered contracts due to the accounting change. See FAR § 30.604(b)(l)(i), (d)(1). These are two separate estimates. See FAR § 30.601(a)(2) (“If a change in cost accounting practice or noncompliance has occurred, [the CFAO shall determine] how any resulting cost impacts are resolved.” (emphases added)); FAR § 30.606(a)(3) (differentiating between the cost impacts of noncomplianees and various kinds of changes).
The government’s proffered evidence refers to the anticipated cost impact of Sikorsky’s 2006 accounting overhaul, not the past cost impact of its 1999-to-2006 alleged non-eompliance. This becomes evident when Mr. Chancio’s cited testimony is examined in context:
Q. ... [D]id you have any understanding of what the cost impact for a change from a noncompliant practice to a compliant practice with regard to material overhead costs would be?
*676A. Well, first of all, we thought both practices were compliant, but we were looking [to make] the change to establish a material overhead rate, if we could resolve the alleged noncompliance, that it would become part of our 2006 voluntary accounting change.
So, as part of that package of which ... establishment of material overhead rate was one of several changes, we looked at it from a point of view that it was a voluntary change....
As far as the noncompliance, I don’t recall. We may have done some casual looks at it....
Q. And do you recall the year that the cost impact calculation [was made] for the change in practice for allocating material overhead costs from 1999-2005 to the practice of 2006? ...
A. ... We had planned to put it in as a voluntary change because, in our mind ... [the] alleged noneomplianee issue was closed, was completed....
So, I had promised Mr. Weisman, as part of the arrangement in the agreement, ... that ... we would make the change 1-1-06 and include it as a voluntary change, going forward. So, we calculated it. ...
Q. And, so, you believe that you told Mr. Weisman in 2005 that you would include a cost impact for the change in material overhead practices, but that the calculation would be made as a voluntary change?
A. Yes....
Q. And you recall today specifically talking to Mi’. Weisman about the cost impact calculation? ...
A. ... What I specifically recall is that we told him we would include it in our 2006 accounting change submission. Therefore, by default, it would have to be part of the cost impact proposal ....
Q. Okay. And I understand the logic of that statement, Mr. Chancio, but my question is a little different and, that is, did you have any specific conversation with Mr. Weisman about the cost impact calculation for the material overhead change?
A No. What I told Mr. Weisman ... was that we would include it in the accounting change and that we planned to submit a cost impact proposal for the entire accounting change.
Def.’s Mot. for Judgment on Accord Defense App. at 196-204 (Chancio Dep. at 31:12 to 32:7, 35:9 to 36:18, 37:14 to 39:8) (emphases added). Likewise, in accord with this testimony, Sikorsky’s actions in calculating a cost impact were done as part of the 2006 accounting change, not as a measure of the costs of the alleged noneomplianee from 1999 to 2005. See id. App. at 168 (Letter from Sikorsky to Weisman (Mar. 28, 2006)) (“[Sikorsky’s] CASB Disclosure Statement with an effective date of January 1, 2006 was approved on February 21, 2006. Attached you will find our General Dollar Magnitude [cost-impact statement] associated with the accounting changes. This ... proposal compares contract cost under Sikorsky [’s ] ... accounting practices effective 1/1/2006 and pre 1/1/2006.” (emphasis added)); see also id. App. at 166 (Letter from Sikorsky to Weis-man (Nov. 1, 2005)) (“The General Dollar [Magnitude ... will be submitted in accordance with FAR [§ ] 30.601.” (emphasis added)).
The government also points to a letter dated September 2, 2005 from Mr. Weisman to Sikorsky as evidence negating an accord and satisfaction. According to the government, Mr. Weisman’s letter did not make a finding that Sikorsky’s alleged noncompli-anee resulted in no material cost impact, as would occur when resolving an immaterial cost impact under the applicable regulations. See Def.’s Mot. for Judgment on Accord Defense at 14-15.13
These arguments may be irrelevant. Notably, a determination of the materiality of a noncompliance is part of the CAS administration procedures, FAR *677§ 30.605(b)(3)(ii), but both parties agree that such a determination is unnecessary for an effective accord and satisfaction. Hr’g Tr. 79:15-16, 85:25 to 86:6 (Mr. Poirier); 81:16-21 (Mr. Hall) (June 15, 2012). The court concurs. While “an agent of the [government may not bind the [government to an agreement when such an act is directly forbidden by U.S. law or regulations,” Texas Instruments, 922 F.2d at 815 (citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947)), “[e]ourts have consistently afforded a wide degree of latitude to contracting officers in their ‘authority to enter into, administer, or terminate contracts,’ ” Thomas Creek Lumber, 36 Fed.Cl. at 238 (quoting NKF Eng’g, Inc. v. United States, 805 F.2d 372, 377 (Fed.Cir.1986)). That authority stems from the government’s policy to “try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level” and to make “[reasonable efforts ... to resolve controversies prior to the submission of a claim.” FAR § 33.204. Thus, “contracting officers are authorized, within any specific limitations of their warrants, to decide or resolve all claims arising under or relating to a contract.” FAR § 33.210; see also FAR § 1.602-1; FAR § 2.101 (defining “contracting officer”); cf., e.g., Compliance Corp. v. United States, 22 Cl.Ct. 193, 201 (1990) (upholding a contracting officer’s decision to disqualify a bidder even though not expressly authorized by any statute or regulation because the action was “inherent in his duty to ‘safeguard[] the interests of the United States in its contractual relationships’ ” (alteration in original) (quoting NKF Eng’g, 805 F.2d at 377 (in turn quoting FAR § 1.602-2 (1985)))). This wide authority includes the power to enter into an accord and satisfaction related to a CAS-covered contract without making a formal cost-impact determination. Thus, the fact that Mr. Weisman’s letter dated September 2, 2005 does not discuss a cost impact is no bar to an alleged accord and satisfaction.
2. A purported lack of evidence to support a meeting of the minds.
The government argues in the alternative that, even if there is no evidence specifically negating a meeting of the minds, the evidence on file does establish that there is a “lack of proof of a material fact,” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505, demonstrating that Sikorsky “will not be able to prove an essential element of its [affirmative defense],” Vivid Techs., 200 F.3d at 807. The government’s argument essentially is that Mr. Weisman could not enter into an accord and satisfaction without explicitly addressing the cost impact of the potential noncomplianee, and there is no evidence that Mr. Weisman did so. See, e.g., Hr’g Tr. 78:3-4 (Mr. Poirier) (June 15, 2012) (stating that Mr. Weisman would need to say something akin to “we won’t charge you any damages for your noncompliance” to effect an oral agreement).
At the outset, there is evidence in the record that Mr. Weisman and Mr. Chancio expressly agreed to waive money owed for the past noncomplianee. Mr. Chancio testified that Mr. Weisman agreed that the noncompliance issue “would be closed if we made the change [to the 2006 accounting system], and there would be no request for any cost impact determination for the periods of 1999 to 2005.” Pl.’s Opp’n to Judgment on Accord Defense Ex. F (Chancio Dep.) at 81:3-5; see also id. Ex. F (Chancio Dep.), at 81:9-13 (Q. “And Mr. Weisman specifically told you ‘There will be no requests for a cost impact for the period January 1999 through September of 2005’?” A. “Yes.He said, ‘If you make the change going forward, I will close the noncomplianee out.’ ”). Likewise, Mr. Colandro, who succeeded Mr. Weisman as CACO, testified that Mr. Weisman told the previous CACO, Ms. Sherwood, that “there was a deal.” Colandro Dep. at 213:10. But see id. at 215:20-22 (“[Mr. Weisman] said I forgot to ask for the cost impact. There was no deal to waive any cost impact.”).
Likewise, the parties’ subsequent conduct may be understood, when viewed in the light most favorable to Sikorsky, as evincing an earlier express agreement to waive cost impact. Mr. Weisman’s letter to Mr. Chancio dated September 2, 2005 may be interpreted as memorializing an earlier express agreement to forgo the money owed for any past noncompliance. See Texas Instruments, 922 *678F.2d at 813 (“[W]hen an authorized contracting officer expresses a definite opinion concerning the merits of a claim with knowledge of the relevant facts, a ‘decision’ has been made.” (quoting General Elec. Co. v. United States, 412 F.2d 1215, 1221 (Ct.Cl.1969))). The letter states in relevant part:
[I]n view of the impending implementation of the [new accounting system] in January, 2006, and your agreement to establish a Material Handling rate under the new system, the CACO has determined that it would be neither cost-effective, nor of any substantial benefit to the {g ]ovemment, to require implementation of the changes recommended by DCAA [in the 2004 audit] at this time.
Def.’s Mot. for Judgment on Accord Defense App. at 164 (emphases added). Likewise, Mr. Weisman’s decision to close out the 2004 audit constitutes circumstantial evidence of an express agreement to waive any money potentially owed. In particular, Mr. Weis-man’s actions in marking the database for the 2004 audit not only as “dispositioned,” but also as 11 closed” and “resolved,” Pl.’s Opp’n to Judgment on Accord Defense Ex. K, at 1, 3 (emphases added), is potentially a strong expression of Mr. Weisman’s state of mind at the time of the negotiations.
Further, even if Mr. Chancio and Mr. Weisman failed to explicitly agree in so many words, that would not be dispositive. The formation of an accord and satisfaction does not require an incantation. Rather, there need only be expressions “sufficient to make the creditor understand, or to make it unreasonable for him not to understand, that the performance is offered to him as a full satisfaction of his claim and not otherwise.” Chesapeake & Potomac Tel., 654 F.2d at 716; see Kanag’Iq Constr. Co. v. United States, 51 Fed.Cl. 38, 47 (2001) (“[T]he absence of an express provision regarding discharge does not preclude the finding of an accord.” (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 n. 4 (Fed.Cir.1987))); cfi Dureiko v. United States, 209 F.3d 1345, 1356 (Fed.Cir.2000) (“If [a] release is ambiguous as to its scope of coverage, we construe its language to effect the parties’ intent at the time they executed the release.” (citing King v. Department of the Navy, 130 F.3d 1031,1033 (Fed.Cir.1997))). See generally 13 Arthur L. Corbin et al., Corbin on Contracts § 70.2 n. 1 (rev. ed. 2012).14 At this stage of the litigation, there is a genuine dispute as to the parties’ understanding of the purported agreement between Mr. Chancio and Mr. Weisman. The existence, terms, and scope of any accord and satisfaction entered by them remains a question of fact, and resolution of these matters will require trial.
CONCLUSION
For the reasons stated, the government’s Motion for Summary Judgment upon the Affirmative Defense Based upon the Statute of Limitations is DENIED. Similarly, the government’s Motion for Summary Judgment upon the Affirmative Defense Based upon Accord and Satisfaction is DENIED.15
It is so ORDERED.
. The motions were submitted in anticipation of a trial scheduled to commence on October 22, 2012, relating to factual issues attendant to application of the CAS. See Sikorsky, 102 Fed.Cl. at 58-60.
. The Contract Disputes Act was recently recodi-fied at 41 U.S.C. §§ 7101-7109, replacing 41 U.S.C. §§ 601-613. See Act of Jan. 4, 2011, Pub.L. No. 111-350, sec. 3, §§ 7101-7109, sec. 7(b), 124 Stat. 3677, 3816-26, 3860.
. The pertinent portion of the Tucker Act as amended provides that:
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 7104(b)(1) of title 41, including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of th[e Contracts Disputes] Act[, codified at 41 U.S.C. § 7103].
28 U.S.C. § 1491(a)(2) (last sentence).
. The Cost Accounting Standards, codified at FAR Chapter 99, Subchapter B, Part 9904, are "designed to achieve uniformity and constancy in the cost-accounting principles followed by defense contractors and subcontractors under [f]ed-eral contracts.” Allegheny Teledyne Inc. v. United States, 316 F.3d 1366, 1370 (Fed.Cir.2003). In essence, the standards determine what contractor costs may be allocated to government contracts, and how those costs should be allocated. The aim of the standards is to allow a contractor to charge to government contracts only those costs of doing business that should be fairly attributed to the performance of those contracts. See generally Darrell J. Oyer, Accounting for Government Contracts—Cost Accounting Standards, § 1.01 to .05 (2010). At issue ultimately in this case is Sikorsky’s compliance with CAS 418, codified at FAR §§ 9904.418-10 to 9904.418-63. See Sikorsky, 102 Fed.Cl. at 48-58.
. Such changes, unless deemed desirable to the government, must also be accompanied by a general dollar-magnitude proposal, i.e., a cost-impact proposal, estimating the difference in costs to the government caused by the change. FAR § 30.604(b)(l)(i).
. The FAR and the parties' documents variously refer to the "contracting officer,” the "CACO,” the Divisional Administrative Contracting Officer ("DACO”), the Administrative Contracting Officer ("ACO”), and the "CFAO.” These titular distinctions make no difference for purposes of this opinion, as all refer to the same responsible government officer.
. Section 1346(a) provides now, and provided at the time of the Crown Coat decision, that federal district courts and this court (or its predecessor) have concurrent jurisdiction over suits for "re*669covery of any internal-revenue tax” and "[a]ny other civil action or claim against the United States, not exceeding $10,000 in amount, founded ... upon any express or implied contract with the United States."
. Section 2401 likewise provides now, as it did at the time of Crown Coat, that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” Section 2401 applies to civil suits against the United States in district courts, while 28 U.S.C. § 2501 sets a comparable six-year statute of limitations for suits in this court, unless a more specific statute prescribes a different limitations period.
Notably, in its current form, Section 2401 applies “[e]xcept as provided by chapter 71 of title 41,” which recodifies the Contract Disputes Act.
. In effect, the CDA restricted the government’s options on dispute resolution. As the Federal Circuit observed in Seaboard Lumber Co. v. United States, 903 F.2d 1560 (Fed.Cir.1990):
After the Wunderlich decision [United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951)], Congress, as a matter of grace, provided for narrow judicial review of a contracting officer’s decision, limiting by statute (the Wunderlich Act) the contractual options previously available to the government. See 41 U.S.C. §§ 321, 322 (1982).... However, absent a contractor’s invoking the allowed procedures, a contracting officer’s decision became the final adjudication of the government’s claim by reason of the disputes clause in the contract. Crown Coat[, 386 U.S. at 512-14, 87 S.Ct. 1177.].
The CDA, which followed the Wunderlich Act, further restricted the government’s options on dispute resolution. Congress mandated that the government had to include in its contracts the broader review provisions set out in the CDA, that is, the dual avenues of review either by appeal to a Board of Contract Appeals or by a direct access suit in the Court of Claims. However, Congress confirmed the use of a finality clause in the contract with respect to a contracting officer’s decision in favor of the government, absent the contractor’s resort to these review procedures. See 41 U.S.C. § 605. Otherwise, the government is not required to litigate the merits of its breach claim.
Id. at 1565 (emphasis added). Among other things, the provisions of the CDA providing jurisdictional access to boards of contract appeals and to this court cannot be waived. See Minesen Co. v. McHugh, 671 F.3d 1332, 1337-41 (Fed.Cir. 2012) (enforcing a contractual clause that provided for review of a contracting officer’s decision by a board of contract appeals and also specified the finality of the board’s decision, thus barring an appeal of the board’s decision to the Federal Circuit, but commenting that in the CDA "Congress ensured immutable access to the United States Court of Federal Claims”); id. at 1349 (Bryson, J. dissenting) ("Although the contractual provision at issue in this case purports to displace the provisions of the CDA altogether, it cannot have the effect of foreclosing a direct appeal to the Court of Federal Claims, because 41 U.S.C. § 7104(b)(1) provides that such an appeal can be brought 'notwithstanding any contract provision ... to the contrary.’ ” (alteration in original) (citing Seaboard Lumber, 903 F.2d at 1565)).
. Delayed accrual would similarly frustrate the internal agency procedures set out in FAR Part 30. If the CFAO finds a material noncompliance, he or she must "[r]equest that the contractor submit by a specified date" a cost-impact proposal. FAR § 30.605(c)(2)(i)(B). Only after the time for submission expires, taking into account any extensions of time that may be granted, may the CFAO assert a claim. FAR §§ 30.604(i), .605(i), .606(c)(6)(ii). If a government claim did not accrue until that deadline passed, then the contracting officer could delay *672accrual virtually indefinitely, simply by specifying a long-off date for submission or granting continuing extensions of time.
. This second prong of FAR § 9904.418-50(b)(2), which provides that a contractor remains in compliance with CAS 418 if "the resulting allocation [under a potentially noncompliant practice is not] materially different," bears strong similarity to tire CAS administration procedures found at FAR § 30.605(b)(4). The provision in FAR Part 30 states that, if a CFAO finds that a CAS violation is immaterial, the CFAO shall inform the contractor that ”[t]he noncompliance should be corrected; and ... [ijf the noncompliance is not corrected, the [government reserves the right to make appropriate contract adjustments should the noncompliance become material in the future.” FAR § 30.605(b)(4)(i)(A)-(B). The provision also states that the CFAO should "[c]onclude the cost-impact process with no contract adjustments.” FAR § 30.605(b)(4)(ii). For both FAR § 9904.418-50 and FAR § 30.605, materiality is defined according to the definition found at FAR § 9903.305. FAR § 30.602(a); see FAR § 9904.418-30(a); Sikorsky, 102 Fed.Cl. at 53.
As a technical matter, these provisions differ in that a contractor does not violate CAS 418 — even "facial[ly],” as Sikorsky has termed it, see Hr'g Tr. 64:18 to 65:17 (June 18, 2012) — if the contractor's practices do not result in a materially different allocation of costs to CAS-covered contracts. In such a situation, it is incorrect to say that there is an immaterial noncompliance per FAR § 30.605(b)(4). Rather, the practice is still compliant under FAR § 9904.418 — 50(b)(2).
Regarding claim accrual, however, there is no practical difference. The determination under FAR § 9904.418 — 50(b)(2)—whether "the resulting allocation [is] materially different” — functions in effect as a specific instance of the CFAO's determination under FAR § 30.605(b)(4) of whether a CAS practice's cost impact is material. Under both regulatory provisions, the CAS noncompliance claim accrues when the government knows or should know that the contractor's CAS practices are otherwise noncompliant and are materially affecting CAS-covered contracts. Correlatively, claim accrual does not depend on when, or if, the magnitude of the materiality is ever actually determined. See Raytheon, 104 Fed.Cl. at 330-31, 2012 WL 1072294, at *3; McDonnell Douglas, 2009 WL 4774620, at *8 ("When monetary damages are alleged, some extra costs must have been incurred before liability can be fixed and a claim accrued, but there is no requirement that a sum certain be established.” (citing Gray Personnel, 2006 WL 2390292)); cf. CACI Int’l, Inc., ASBCA No. 57559, 12-1 BCA 1135,027, 2012 WL 1579541, at *7 ("As early as the late 1970’s, we held that we have jurisdiction to decide whether a contractor has violated CAS even though the government has not made a determination of the cost impact of the alleged violations or demanded any cost adjustments.” (citing AiResearch Mfg. Co., 76-2 BCA ¶ 12,150, at 58,447, 1976 WL 2047)).
. The parties strenuously dispute who in the government must have notice of a claim for it to accrue. The government contends that, for a CAS noncompliance claim to accrue, the contracting officer must have notice. See Def.’s Reply re Limitations Defense at 23-26. Sikorsky contends that accrual may occur when other responsible actors, purportedly including DCAA auditors, know of the claim. See Pl.’s Opp'n to Judgment on Limitations Defense at 4-6. At this early juncture it is unnecessary to decide the question. Regardless of the knowledge of other actors, there is a material dispute as to whether either of the contracting officers, namely Ms. Sherwood and Mr. Weisman, had knowledge of the claim prior to December 11, 2002.
. Those regulations include FAR § 30.602(b)-(b)(2) ("A CFAO determination of materiality ... [m]ay be made before or after a general dollar magnitude proposal has been submitted ... [and s]hall be based on adequate documentation.”) and FAR § 30.605(b)(4) ("If the CFAO makes a determination of noncompliance, the CFAO shall follow [additional procedures] unless the CFAO also determines the cost impact is immaterial.”). See supra, at 662.
. This doctrine is not to be confused with the elements of an implied-in-fact contract. "An implied-in-fact contract requires a 'meeting of the minds, which although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in light of the surrounding circumstances, their tacit understanding. ” Bank of Guam v. United States, 578 F.3d 1318, 1329 (Fed.Cir.2009) (quoting Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed.Cir.1997)). There is a difference between determining the meaning of an agreement based upon the parties’ expressions and determining whether the parties have an agreement at all based upon their conduct. See Restatement (Second) of Contracts § 200 cmt. a ("Questions of interpretation arise in determining whether there is a contract as well as in determining rights and duties under a contract.”).
With that said, the court expresses no opinion as to whether plaintiff may have a valid defense based upon an implied-in-fact accord and satisfaction as well as one based upon an express accord and satisfaction.
. Also pending before the court is the government’s Motion to Postpone Trial Regarding Liability so that the Central Liability Issue Can Be Added to the Scope of Trial, filed May 31, 2012. *679For the reasons stated in the court’s prior opinion, Sikorsky, 102 Fed.Cl. 38, in the court's order of January 20, 2012, ECF No. 150, and at the hearing held on June 15, 2012, that motion is also DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218294/ | OPINION AND ORDER
LETTOW, Judge.
This post-trial decision concerns a taking by the United States of property for public use without providing just compensation to the owner. The fundamental facts of the ease are not disputed. In 2006 and 2007, the United States Army Corps of Engineers (“Corps” or “the government”) employed a contractor to remove more than 380,000 cubic yards of clay from the land of National Food & Beverage Co., Inc. (“National Food” or “plaintiff’), without compensating National Food for the removed clay. The Corps used the clay to repair levees in southern Louisiana, which had been damaged during Hurricane Katrina. The chief issues still in dispute are (1) whether National Food actually owned the clay in question, and (2) if so, what just compensation ought to be awarded. In February and March 2012, the court held an eight-day trial in New Orleans, Louisiana, including a site visit to National Food’s land where the clay had been removed. Post-trial briefing has been completed, and on June 28, 2012, the parties presented their closing arguments. The case is accordingly ready for disposition.
FACTS1
A. National Food’s Land
In 1999, National Food purchased from CLL Limited Partnership, Ltd. (“CLL”) some 563 acres of land located approximately twenty-seven miles southeast of New Orleans, in Plaquemines Parish. See PX 19-1, -8 (Sale Agreement).2 In negotiations over the sale, CLL was represented by Mr. Edwin Blair, vice-president of CLL. Tr. 94:1-4 (Blair). National Food was represented by its CEO, Mr. Hai Nguyen. Both parties retained counsel to review the transaction and the deed of sale, which had been drafted by CLL. Tr. 61:11-15, 79:25 to 80:2 (Nguyen); Tr. 102:14-18 (Blair). Of particular interest to this litigation is a clause in the deed of sale that reserves to CLL “all oil, gas and other materials in or under the property.” PX 19-6.
At trial, both signatories to the agreement — Mr. Blair and Mr. Nguyen — testified as to their understanding of that clause. Mr. Blair stated that the term “other materials in or under the property” was intended to encompass clay. See Tr. 115:15-18. At the time of the sale, CLL was operating a clay pit about seven or eight miles from the subject property, and it supposedly did not want another borrow pit opening nearby to compete with its own. Tr. 94:24 to 95:4; 101:3— 14 (Blair). Mr. Blair believed the broad sweep of the term “materials” would encompass clay and could be differentiated from deeds containing a narrower reservation of “gas, oil, and other minerals.” Tr. 102:1-4 (emphasis added). Mr. Blair testified that in *684his experience a reservation of “materials” was “very, very unusual,” Tr. 101:19, and that he had never used or seen it before, Tr. 119:21 to 120:7. At trial, however, this testimony was undermined when plaintiffs counsel produced an earlier deed executed in 1997 by CLL that also reserved “all oil, gas and other materials in or under the [pjroperty.” PX 372-1, 4; see also Tr. 122:1-17 (Blair).
Mr. Nguyen’s testimony places the reservation clause in a broader context. Mr. Nguyen stated that, during negotiations over the price of the property, Mr. Blair had never raised the issue of reserved rights to soil or types of soil in meetings with Mr. Nguyen, and, indeed, he also had never raised the matter after the sale. Tr. 48:2-6. Mr. Nguyen indicated that the reservation clause was not significant to him until 2009, when he learned about it in the course of business talks with a Texas oil company. Tr. 45:21-23.
B. Rebuilding Levees in Southern Louisiana After Hurricanes Katrina and Rita
In August and September of 2005, approximately six years after CLL sold the land to National Food, Hurricanes Katrina and Rita decimated the coast of southern Louisiana, causing deaths and destroying property. Infrastructure damaged by the two storms included the system of levees protecting New Orleans and the surrounding parishes. Public officials had long recognized the risk posed to the area by a hurricane, and the levee system had been constructed to defend against such a threat. However, many of the levees had been diminished by subsidence and erosion when Hurricane Katrina struck, while others had never been finished due to funding shortages. The storm surge over-topped and breached these earthen barriers at numerous points, eliminating the protection they had previously provided. See PX 28-4 (New Orleans to Venice, LA Hurricane Protection Project Information Report).
In the aftermath of the storms, the Corps set about restoring, strengthening, and improving the levees. The agency divided this mission into two distinct efforts. The first was Task Force Guardian, which began around October 2005. Tr. 1568:19-22 (Test, of Brett Herr, a senior project manager with the Corps). This project focused solely on repairing the damage to the levees incurred during the hurricanes. Tr. 367:25 to 368:4 (Herr); see also PX 28-4 (“Rehabilitation assistance is necessary to [establish] a pre-storm condition and level of protection.”). The work was undertaken pursuant to Public Law No. 84-99, 69 Stat. 186, which pertains to “the repair or restoration of any flood control work threatened or destroyed by flood, including the strengthening, raising, extending, or other modification thereof.” See also Tr. 393:1-3 (Herr). This emergency effort would eventually require approximately seven million embanked cubic yards of clay. Tr. 391:16-22 (Herr).3 The Corps achieved most of the aims of Task Force Guardian by June 2006, although it did not finish the work completely until some months later. Tr. 1568:22-24 (Herr).
The second effort was the Hundred-Year Protection program, which authorized the Corps to go beyond simply repairing and restoring the levees and actually to improve them. Tr. 367:20-25 (Herr). As the name of the program suggests, its goal was to protect New Orleans and environs from high-magnitude storms that would be expected only once in a century. Tr. 1534:19-24 (Herr). The billions of dollars required for this massive undertaking were appropriated by Congress on June 15, 2006. See Pub.L. No. 109-234, tit. 2, ch. 3, 120 Stat. 418, 453-474; see also Tr. 535:15-18 (Herr). Although the exact amount of clay needed for the Hundred-*685Year Protection work has fluctuated over time, the Corps currently expects that it will embank 70 to 100 million cubic yards by the time the project is complete. Tr. 387:20-24 (Herr); Tr. 1192:1-6 (Test, of Soheila Holley, a senior project manager for the Corps).
The agency identified three methods of acquiring clay to meet the demands of these efforts. The first was to obtain government-furnished sources, i.e., to locate and acquire clay reserves or to use clay embedded in government-owned land. See DX 139-1; Tr. 384:10-14 (Herr). The Corps would then hire a contractor to extract the clay and place it on a levee. The second method was to rely on contractor-furnished clay, i.e., to pay a contractor both to obtain clay and to use it to repair the levees. See DX 139-1; Tr. 384:15-17 (Herr). The Corps maintained a list of privately-owned sites that contained suitable clay, see, e.g., DX 139-3; a contractor could contact an individual from that list and negotiate directly with him or her for the right to remove the clay from the property. Tr. 442:6-19 (Herr). The third method was to enter into supply contracts, i.e., to pay contractors to deliver clay to a worksite (but not to perform levee repairs themselves). Tr. 1241:1-4 (Holley). During Task Force Guardian, the Corps used only government-furnished clay and supply contracts to meet its needs. See Tr. 386:4-5 (Herr). After the immediate urgency waned, however, the agency has relied upon all three sources for the Hundred-Year Protection work. Tr. 436:9-13 (Herr).
One way the Corps secured government furnished clay was through Louisiana’s Homeland Security and Emergency Assistance and Disaster Act, La.Rev.Stat. Ann. §§ 29:721-736; see id. §§ 29:724(D)(4), 29:727(F)(4). In October 2005, the Corps and Plaquemines Parish (“the Parish”) entered into a Cooperation Agreement for Rehabilitation of a Federal Hurrieane/Shore Protection Project (“Cooperation Agreement”). PX 35. This agreement was subsequently modified in January 2006. PX 83. Under the Cooperation Agreement, the Parish agreed to commandeer a right of entry onto any private lands that were needed to supply clay for levee repairs. PX 83-4, -5. The Parish would then transfer this right-of-entry to the Corps, and the Corps would use that right to enter upon private land to remove clay. Id. In the Cooperation Agreements with parishes, the Corps agreed that it would provide just compensation to the private landowners. Id.
In addition to commandeering entry upon clay-rich lands, the Corps also pursued contractor-furnished and supply-contract sources of clay. Beginning in late 2005, the agency issued a series of solicitations for “Indefinite Delivery-Indefinite Quantity” contracts for clay. See, e.g., PX 45.' Between January 4, 2006, and June 30, 2006, it awarded six contracts for the delivery of clay to sites in Plaquemines Parish and the neighboring St. Bernard Parish. See DX 36. Under these contracts, the Corps paid prices ranging from $21.82 to $33.00 per cubic yard, which included excavation, processing, transport, and delivery. See DX 36-23; DX 36-44. The Corps issued numerous task orders against these contracts in the first half of 2006. See, e.g., PX 76 (task order dated Jan. 9, 2006); PX 205 (task order dated June 30, 2006).
C. The Removal of Clay from National Food’s Land
Several years before the landfall of Hurricanes Katrina and Rita, the Corps had conducted soil borings on National Food’s property in anticipation of a freshwater diversion project. Tr. 165:15-19; 168:6-12 (Test, of Ellsworth Pilie, a lead civil engineer with the Corps). Consequently, after the hurricanes hit southern Louisiana, Corps officials knew that the National Food site contained reserves of acceptable clay, as did an immediately adjacent property owned by Conoco-Phillips. Tr. 172:20-25; 181:4-7 (Pilie). On January 17, 2006, the Corps asked the Parish to grant the Corps a right of entry onto ConocoPhillips’ and National Food’s properties pursuant to the Cooperation Agreement. See PX 84-16 (Letter from Linda Labure, Chief, Real Estate Div., Corps, to Benny Rousselle, President, Plaquemines Parish (Jan. 17, 2006)). The Corps prepared an order for the Parish president to execute, entitled “Commandeering Property for Borrow Material, Stockpiling, and Access; and *686Authorization for Entry for Construction, Borrow, Stockpiling, and Access” (“Commandeering Order”). DX-32.
The Parish president signed the Commandeering Order on January 26, 2006. DX 32-3. This order commandeered approximately 77.2 acres of property to “be used for access; to obtain borrow material; and to stockpile or process material for construction.” DX 32-2. Included in this land was about 46.2 acres of National Food’s property. Tr. 2113:10-14 (Test, of Michael Truax, an appraiser retained by the government). The other lands subject to the commandeered right of access belonged to ConoeoPhillips and bordered National Food’s land to the east, bounded on the other side by the Mississippi River. DX 33-3. Although signed in late January 2006, the Commandeering Order was not implemented immediately. After doing preliminary surveying and testing work, the Corps’ contractor, Shaw Environmental and Infrastructure, Inc. (“Shaw”), began excavating clay from ConoeoPhillips’ property. DX 33-3. About four months later, on or slightly before June 1, 2006, Shaw entered National Food’s property. Tr. 153:8-19 (Test, of William Scoville, a project and program manager with Shaw). Shaw began excavating clay from National Food’s land on June 13, 2006, and continued that work for a period of approximately nine months. See Stip. ¶ 2.
Overall, Shaw removed 383,871 banked cubic yards of clay from National Food’s land. Stip. ¶ l.4 The excavation site was an 18.30-aere strip of land, termed Tract P602 (“the borrow pit”). See DX 31-21 (Truax Report). Adjacent to the borrow pit was a 25.80-acre staging area, where Shaw stored and processed the excavated clay and loaded it onto trucks. Id. Shaw also constructed an access road over 2.16 acres of National Food’s land, connecting the staging area to a secondary public road. Id. Shaw transported the clay along this secondary road to Louisiana Highway 23, and from there to the Buras Levee (approximately 23 or 28 miles from plaintiffs property).5 There it was compacted and em-placed by Shaw per its contract with the Corps. See DX 33-4 to -7. Shaw removed its equipment and vacated plaintiffs property by March 30, 2007. DX 33-3; see also Stip. ¶ 2. At this point, the borrow pit was twenty feet deep, roughly several hundred yards wide and one-half mile long, and would eventually become a small lake or large pond. Cf. Tr. 1674:4 to 1675:23 (Test, of Pierre Hingle, an engineer working as a contract administrator for the Corps). The site visit disclosed that the staging area had largely returned to the condition in which it was found before Shaw’s activities. See also DX 31-51 (Truax Report).
D. The Market for Clay in and around Plaquemines Parish
Clay was in high demand in southern Louisiana after Hurricane Katrina. In the wake of the storm, the Corps embarked on a large-scale effort to rebuild and improve the levee system, which would require an estimated 100 million cubic yards of clay. See Tr. 387:20-24 (Herr); Tr. 391:16-22 (Herr); Tr. 1192:1-6 (Holley). The Corps informed the general public of the magnitude of this need and actively solicited contractors to provide levee-suitable clay. See Tr. 344:2-23 (Test, of Cynthia Nicholas, a contracting officer with the Corps); Tr. 422:18 to 423:9 (Herr). Contractors heeded this call, Tr. 565:6-12 (Howell), and approached owners of property with known clay reserves, such as National Food, to inquire about purchasing the day, Tr. 51:16-21 (Nguyen); see also Tr. 112:1-9 (Blair).
At trial, the parties presented both expert and lay testimony concerning the market for clay before and after Hurricane Katrina. The plaintiffs chief expert was Dr. Jonathan Stuart Wood, a professor of economics at Loyola University. See Tr. 706:20-22 *687(Wood). To calculate a fair market royalty, Dr. Wood started with the price that the Corps paid its contractors to purchase, excavate, and deliver clay to one of its levee sites (typically $25.00 per cubic yard). PX 316-3. From this he deducted the cost of extracting clay from the ground ($4.00 to $5.00 per cubic yard) and then the cost of transporting it to the site ($5.80 per cubic yard, assuming a distance of approximately 25 miles). Id. Lastly, he acknowledged that a landowner might have to pay an entrepreneurial fee to a contractor to perform these tasks ($1.50 to $2.00 per cubic yard). Tr. 750:13-19 (Wood). Dr. Wood posited that the residual amount, ranging from $8.00 to $15.00 per cubic yard, would be retained by the owner as a royalty for the clay. See PX 316-3; see also Tr. 750:2-24. Dr. Wood based his approach and step-by-step deductions upon information supplied by one market participant, Mr. Jerry Howell. Tr. 809:24 to 810:4; see also Tr. 810:23 to 811:11. Dr. Wood was not actually aware of any landowner who received a royalty within his range. Tr. 803:9-13.
The plaintiffs second witness on the local market for clay was Mr. Howell, an entrepreneur with extensive experience in the clay business following Hurricane Katrina. Tr. 560:17 to 561:14 (Howell).6 He used two methodologies to determine the fair market royalty rate for clay at the time of the taking. First, Mr. Howell employed a technique nearly identical to Dr. Wood’s method, deducting the expenses of excavating and transporting clay from the price paid in the Corps’ supply contracts. Tr. 907:11 to 908:3. Under this approach, he derived a fair market value of $12.50 per cubic yard. Tr. 908:3. Like Dr. Wood, Mr. Howell conceded that his technique was somewhat theoretical. He noted that his method “didn’t say that this is [the royalty] the landowner received” but rather “this is what the landowner could receive.” Tr. 591:8-10 (emphasis added). In fact, in his own clay dealings Mr. Howell had never paid a royalty greater than $8.00 per cubic yard. Tr. 900:21-23.
Mr. Howell used a second, alternative methodology to suggest another value for the clay. Under this approach, he looked to an existing contract for clay that he had with White Oak Realty to serve as a comparison for what National Food could have received for its clay. Tr. 592:12-22; 593:9-18. The listed royalty for this contract was $8.00 per cubic yard. DX 145-3. However, the landowner granted certain reductions in the price, such that the average royalty paid by Mr. Howell was approximately $7.45. Tr. 1150:20-21.
Mr. Howell also testified about a contract between his company Evenstar, Inc. (“Ev-enstar”) and National Food for the purchase of the latter’s clay. See PX 231 (Clay Sales Agreement). This agreement, signed on December 4, 2006, gave Evenstar the right to remove clay from National Food’s property for a royalty of $4.00 per cubic yard. PX 231-1. Mr. Howell’s company bore the costs of testing the soil and obtaining the proper approvals, Tr. 891:9-17 (Howell), and also paid a non-refundable $100,000 advance to National Food, see PX 231-1. This contract was for a term of three years, with a one-year option. PX 231-1 to -2. However, Ev-enstar never excavated any clay under this contract. Tr. 894:4-6. Mr. Howell encountered difficulties in securing approval from the Corps, which believed that the site could contain protected wetlands. Tr. 893:1-4. By the time he overcame this hurdle and obtained approval, the market for clay had subsided and he could not find a buyer for the clay. Tr. 894:4-16.
The government presented the testimony of Mr. John Lizak, a professional geologist with Mineral Valuation & Capital, Inc. Mr. Lizak has considerable education and experience in assessing the value of mineral deposits. Tr. 2198:15 to 2199:3 (Lizak). He developed a market rate for clay by gathering royalties from a number of property-owners, borrow-pit operators, and clay suppliers in the area. DX 28-19 (Lizak Report). Included among these market participants were all the landowners on the Corps’ list of pre-*688approved clay sources except National Food and White Oak Realty, who were deemed to have an interest in this litigation. DX 28-19. Mr. Lizak asked them not only how much their royalties were, but also if they could provide an estimate for the market-royalty rates for clay in Plaquemines Parish in January 2006. DX 28-20. Additionally, Mr. Li-zak inquired to see whether the interviewees’ properties had any unusual characteristics that would make them inappropriate for direct comparison to National Food’s clay deposits. DX 28-20 to -21.
After conducting these interviews, Mr. Li-zak had assembled twenty-one royalty rates: three taken from actual contracts and eighteen obtained in phone conversations with market participants. DX 28-29. His next step was to try to ensure that these rates would be comparable to what National Food would have received at market rates in 2006. If an interviewee gave him a range of values, he tried to find where a borrow pit like the one Shaw excavated on National Food’s land would fall within that spread. Tr. 2239:22 to 2240:6. In a few instances, he excluded rates that were unrealistically low. Tr. 2271:1 to 2272:8; see also DX 28-21 (“For example, participant No. 5 noted that his $0.75 per bank cubic yard royalty rate was based upon an appraisal primarily done for tax planning purposes. Participant No. 14 noted that he paid $1.75 per in-situ cubic yard in 2006, but that this rate was paid for an unusually small job.”). By the time he finished this process, he had assigned a fixed dollar amount to each of the interviewees. See DX 167 (Li-zak’s Worksheet); see also Tr. 2272:19 to 2274:14. Drawing upon these figures, Mr. Lizak concluded that a fair market value for clay after Hurricane Katrina was somewhere in the range of $2.00 to $4.00 per banked cubic yard. DX 28-22; Tr. 2276:9-ll.7 His best estimate within this range was $3.25, although he admitted that this value was inherently imprecise. Tr. 2275:5,15-18.
A contentious issue attendant to the market value of banked clay in January 2006 centers on what the price obtainable in 2006 would have been absent the Corps’ extraordinary demands following Hurricane Katrina. Task Force Guardian and the Hundred-Year Protection work required a combined total of approximately 100 million cubic yards of clay. Virtually all of the witnesses agreed that this pressing government demand was a driving force in the clay market in 2006. See Tr. 745:15 to 746:2 (Wood); 872:11 to 873:4 (Howell); DX 28-12 to 13 (Lizak Report).8 Both government witnesses, Mr. Lizak and Mr. Truax, testified that no substantial market for clay existed apart from the Corps’ projects. Mr. Lizak stated that “there was no market for levee borrow clay before the Corps’ Task Force Guardian Project following Hurricane Katrina.” DX 28-12 (Lizak Report). Although he uncovered more than twenty royalty rates for clay sales after the storm, see DX 28-29, he could not find any clay royalties negotiated in the region prior to the hurricane. Tr. 2260:4-17 (Lizak). Mr. Lizak attributed this lethargic market to the fact that “[c]lay is ubiquitous within the local region and the [sjtate,” such that the supply outpaced demand. DX 28-12. Mr. Lizak undercut his own statement on the subject by relating in his expert report that “[mjajor uses for ... common clay are brick, Portland cement, and lightweight aggregate .... Additional lesser uses for common *689clay include borrow material or fill used for landfill liner, commercial projects, and the repair and construction of levees.” DX 28-12 (Lizak Report) (emphasis omitted). Mr. Truax offered little explanatory detail for his conclusory statement. Tr. 2129:1-3 (“[B]ut for the projects that were ongoing regarding levee reconstruction and repair, there was no general market demand for clay-based materials in that location.”).
Lay witnesses with first-hand experience in the clay market disagreed and testified that a market for clay existed pre-Katrina, based upon a variety of uses. These individuals identified a number of non-federal applications for clay in southern Louisiana. It is used for berms surrounding oil storage tanks, refineries, grain terminals, and power plants, Tr. 157:13-22 (Scoville), to build liners and caps for landfills, Tr. 904:12-15 (Howell), to provide stable support for bridge piers and abutments, Tr. 904:9-10 (Howell), and for other construction purposes, Tr. 904:3-8 (Howell), such as non-federal and private levees. Mr. Scoville of Shaw indicated that clay is used locally, particularly by corporations and local governments to build non-federal levees. See Tr. 157:5-9 (Scoville) (describing Shaw’s “levee work for commercial entities to protect industrial properties” such as power plants); Tr. 1516:16 to Tr. 1517:5 (Herr). He stated that Shaw had a number of projects for non-federal entities requiring clay. Tr. 154:17-20; Tr. 156:15-17 (Scoville). Additionally, Mr. Howell estimated that about thirty to forty percent of his company’s clay sales were to entities other than the Corps. Tr. 904:16-19.
Two witnesses were able to testify about the clay market before Hurricane Katrina. Because these transactions antedate the Corps’ emergency need for clay, they shed some light on the market for clay prior to the storm and absent the government’s extraordinary demand. Mr. Blair testified that CLL operated a clay pit sporadically from the 1980s until 2001, when it was shut down. Tr. 95:5-11; Tr. 96:12-17 (Blair). During that time, the company sold clay by the acre instead of the cubic yard. Tr. 96:25 to 97:7. Such land typically went for about $14,000 to $15,000 per acre. Tr. 98:10-11 (Blair). Further testimony on the pre-Katrina market for clay came from Mike Thibodaux, whose company, ITS, won four of the six clay supply contracts for Task Force Guardian. ITS had negotiated a royalty rate of $1.75 per cubic yard for clay sometime before Hurricane Katrina hit. Tr. 1919:25 to 1920:1; Tr. 1931:8-14 (Thibodaux). However, this arrangement was for clay taken from locations in Mississippi. It had to be barged to locations around New Orleans, including Plaquemines Parish, at some expense to ITS, Tr. 1915:6-9, which would have preferred to use closer Louisiana clay sources if possible. Tr. 1929:25 to 1931:2.
E. The Corps’ Temporary Use of Portions of National Food’s Land to Support the Clay Removal Operation
Mr. Truax provided the only testimony on the value of National Food’s property used on a temporary basis by the government to support the clay operation. That property included an easement on 2.16 acres of National Food’s land for a road and an easement to use 25.80 acres as a staging area. DX 31-4. Based on a comparison of sales of similar properties in the area, Mr. Truax concluded that National Food’s land had a fair market value of about $2,000 per acre. DX 31-38. He found that the road easement deprived National Property of nearly all the value of the 2.16 acres, such that the remainder was worth only $100 per acre. DX 31-52; Tr. 2167:8-24 (Truax).
In assessing the value of the staging area, Mr. Truax treated the government’s actions as tantamount to a rental of National Food’s property for the duration of Shaw’s activity. DX 31-52. He pegged the rental rate at 10 percent of the land’s fee value, which he estimated at $2,000 per acre. DX 31-52; Tr. 2168:18 to 2169:13 (Truax). In his view, this amounted to $200 per acre per year, or $5,160 per year for the 25.80-acre staging area.
PROCEDURAL HISTORY
National Food filed its complaint in this court on March 9, 2010, and amended its complaint on July 20, 2010. See Am. Compl. Its pleadings assert a Fifth Amendment takings claim, alleging that the Corps and its *690agent, Shaw, occupied its land and removed its clay without providing just compensation.9
Six months after this case was instituted, on September 14, 2010, the government filed a Complaint in Condemnation in the United States District Court for the Eastern District of Louisiana formally taking some of the land at issue in this case. See Compl. in Condemnation at 1, United States v. 46.26 Acres of Land, More or Less, Civ. No. 10-3062 (E.D.La. filed Sept. 14, 2010).10
On September 3, 2010, the government filed a motion to dismiss plaintiffs takings claim, and on September 30, 2010, it filed a motion to stay proceedings. In its motion to dismiss, the government argued that it had no liability under the Fifth Amendment because it had not taken National Food’s property; rather, Plaquemines Parish was liable, as it had commandeered entry on plaintiffs land. National Food & Beverage Co. v. United States, 96 Fed.Cl. 258, 263 (2010) (“National Food I ”). In its second motion, the government sought to stay proceedings pending the outcome of the condemnation action it had filed in the Eastern District of Louisiana. Id. at 267. Because that condemnation also addresses National Food’s property, albeit not the same property as that at issue in this ease, the government expressed concern that litigating both suits simultaneously could result in a duplicative award of damages or compensation and divergent outcomes. Id.
In an opinion issued December 16, 2010, the court denied both of the government’s motions. See National Food I, 96 Fed.Cl. at 269. The court found that plaintiffs complaint alleged an “undertaking [that] was overwhelmingly an effort of the federal government, in which the parish had a very limited role.” Id. at 266. The court also determined “that this court and the district court [we]re considering distinct and separate takings which address land that overlaps only in part, occurred at different times, and involve[d] entirely separate operative facts.” Id. at 268.
On October 28, 2011, National Food filed a motion for partial summary judgment, asking the court to (1) find that National Food possessed a compensable property interest, (2) determine that the Corps inversely condemned that property interest, and (3) rule on the methodology for calculating just compensation. See Pl.’s Mot. for Partial Summary Judgment that a Federal Inverse Taking of Clay Occurred, Oct. 28, 2011, ECF No. 63. The court granted this motion in part. See National Food & Beverage Co. v. United States, 103 Fed.Cl. 63 (2012) (“National Food II ”). It concluded that there were no genuine disputes of material fact regarding either National Food’s possession of a property interest in the clay or the government’s taking of the clay through the actions of its contractor, Shaw. Id. at 68-69. However, the court remitted the matter of compensation to trial. Id. at 70.
The day after the court issued its opinion, the government filed a motion for reconsideration of the court’s ruling that National Food possessed a compensable property interest in the clay beneath its lands. See Def.’s Mot. for Recons., Jan. 24, 2012, ECF No. 79. The government alleged that it had newly discovered evidence, in the form of a deposition of Mr. Blair taken only days before, which indicated that CLL owned the clay underlying National Food’s property. Id. at 1; see also id. Ex. B. The court held a status conference on the matter on January 25, 2012, and, based on that conference, decided to defer ruling on the government’s motion until after trial. Order of Jan. 26, 2012, ECF No. 81.11
*691The trial began February 27, 2012, and ended on March 7, 2012. A site visit was conducted on March 3, 2012. The parties filed their post-trial briefs in the following months, and the court heard closing arguments on June 28, 2012. A month after closing arguments, the government informed the court that the plat maps it had filed were slightly erroneous. See Def.’s Notice, July 27, 2012, ECF No. 135. Apparently Shaw left untouched part of the land subject to the Commandeering Order, while removing clay from an equally large area outside the commandeered boundary. See id. Ex. 1, at 1. Consequently this mistake did not actually alter the overall affected acreage or the total number of cubic yards of clay taken by the government. Id. Ex. 1, at 2.
STANDARDS FOR DECISION
National Food has alleged an inverse condemnation of its land and its clay. Inverse condemnation “is a cause of action against the government to recover the value of property taken by the government without formal exercise of the power of eminent domain.” Modem, v. United States, 404 F.3d 1335, 1342 (Fed.Cir.2005) (citing United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980)). The government is bound by the Fifth Amendment’s command that private property shall not “be taken for public use, without just compensation,” U.S. Const, amend. V, which requirement constitutes a money-mandating duty that may be enforced in this court through an action brought under the Tucker Act, 28 U.S.C. § 1491(a). See Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 12, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (“[I]f there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the [United States Court of Federal Claims] to hear and determine.” (quoting United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946))).12
Because the Corps’ contractor, Shaw, occupied National Food’s land and removed clay, National Food has claimed a physical, not a regulatory, taking. The court employs “a two-part test to determine whether governmental action constitutes a physical taking.” Estate of Huge v. United States, 687 F.3d 1281, at 1286 (Fed.Cir.2012). First, the court must ascertain whether the plaintiff possesses a compensable property interest. Id. Second, the court must decide whether that property interest was “taken” by the government’s action. Hage, 687 F.3d at 1285-86 (quoting Acceptance Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed.Cir.2009)). Assuming that both of these questions are answered in the affirmative, the court then proceeds to determine the value of the property taken.
The plaintiff bears the burden of proving not only that the government took its property, but also of establishing the value of that property. Klamath Irrigation Dist. v. United States, 635 F.3d 505, 519 n. 12 (Fed.Cir.2011) (“It is plaintiffs’ burden to establish cognizable property interests for purposes of their takings ... claims.” (citing Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1212 (Fed.Cir.2005))); Cienega Gardens v. United States, 331 F.3d 1319, 1328 (Fed.Cir.2003) (holding that plaintiffs had established that they held vested property interests in the real property at issue); Banks v. United States, 102 Fed.Cl. 115, 128 (2011) (“Plaintiffs carry the burden of proving that a taking has occurred justifying the payment of just compensation.” (quoting Loesch v. United States, 645 F.2d 905, 914 (Ct.Cl.1981) (internal quotations omitted))); Interstate Cigar Co. v. United States, 32 Fed.Cl. 66, 71 (1994) (“The burden of establishing the value of the property taken rests upon the claimant.”). The plaintiff must make these showings by a *692preponderance of the evidence. See Banks, 102 Fed.Cl. at 197.
ANALYSIS
A. Compensable Property Interest
In determining whether the plaintiff possessed a compensable property interest, the court looks to the laws of the state in which the land is located, here, Louisiana. See Mildenberger v. United States, 643 F.3d 938, 948 (Fed.Cir.2011) (citing Preseault v. United States, 100 F.3d 1525, 1534 (Fed.Cir.1996) (en banc)).
The government does not dispute that National Food had a property interest in the surface of the 18.3-acre borrow pit prior to the Complaint in Condemnation filed on September 14, 2010. Nor does the government challenge National Food’s ownership of the land used by the Corps for a staging area or for access to the pit. Given the terms of the sale in 1999 from CLL to National Food and no evidence of further transactions, the court is satisfied that National Food owned and owns the subject property. Instead, the contested issue centers on the government’s claim that National Food has no compensable property interest in the clay underlying its property.
The government’s argument hinges on the interpretation of the reservation clause in the deed conveying the original 563 acres from CLL to National Food. See PX 19. That clause reserves to CLL “all oil, gas and other materials in or under the property.” PX 19-6. The government avers that clay is a material in or under plaintiffs property, and so under the terms of the reservation it belongs to CLL rather than to National Food.13 Plaintiff argues for a less expansive understanding of the phrase “other materials.” It contends that the term refers to materials similar to oil or gas, i.e., other fugacious natural resources.
The court agrees with the government that, as a purely technical matter, clay is indeed a material. But under Louisiana law, that marks only the beginning of the inquiry, not the end. This principle is amply demonstrated by the decision of the Louisiana Supreme Court in Holloway Gravel Co. v. McKowen, 200 La. 917, 9 So.2d 228 (1942). That ease centered on whether the conveyor of a property retained ownership of underlying sand and gravel when the deed contained a clause reserving “mineral, oil and gas rights.” Id. at 232. The court did not concern itself with whether sand and gravel were properly classified as minerals. Rather, “[t]he primary question for decision [was] whether, if it be conceded that sand and gravel are minerals, it was the intention of the parties that they should be excepted from sale.” Id. (emphasis added); see also River Rouge Minerals, Inc. v. Energy Res. of Minn., 331 So.2d 878, 881 (La.Ct.App.1976) (holding, that solid minerals such as lignite coal were not covered by a reservation clause for oil, gas, and minerals).
On its face, the contract is ambiguous whether clay was intended to be included in the reservation clause. Mr. Blair testified that the clause was specifically drafted so as to ensure his company’s continued ownership of the clay deposits. Tr. 101:3-14. If so, CLL’s lawyers went about expressing this notion in a very obtuse and arcane manner. Cf. Tr. 115:12-14 (Blair) (“[I]n retrospect I wish ... that our lawyers had worded it differently.”). Instead of stating its intent plainly, CLL used a generic term (“materials”) for another generic term (“minerals”) in a standard reservation clause. Tr. 102:1-4 (Blair). Mr. Blair claims that this substitution was so “very, very unusual” that an experienced attorney was bound to notice it. Tr. 101:19. At trial, however, plaintiff demonstrated that it was not unique by producing an earlier and different deed of sale from CLL that used the same phrase. PX 372-4; see also Tr. 121:1-17 (Blair).
The circumstantial evidence strongly suggests that there was no mutual intent to exclude clay from the sale. Certainly, National Food did not understand the reservation clause to have such a sweeping scope. Although at trial Mr. Nguyen could not recall *693his exact understanding of the reservation clause from when he first read it thirteen years ago, see Tr. 62:22-25; 45:19-23,14 he did testify that he purchased the land to serve as a homestead and a possible factory site, Tr. 44:18-25. From this one can readily infer that Mr. Nguyen did not believe that the reservation clause included literally all the soil on the land; his purpose for buying the land would be completely defeated if CLL could, at any time, move into any portion of his land and open a full-scale borrow pit. See Holloway Gravel, 9 So.2d at 233 (“We do not think it can be seriously contended that it was in the contemplation of [the buyer] that he might at any time be deprived of the use of the land for the purposes for which he had purchased it by the mining of sand and gravel ... for the benefit of his vendors.”); see also Cumberland Mineral Co. v. United States, 513 F.2d 1399, 1402 (Ct.Cl.1975) (“[I]f the plaintiff ... were the owner of the sandstone and clay in the ... land and were to exercise its right of ownership by removing all of these materials, about the only thing that would be left for the [purchaser] would be a vast chasm, thus wholly defeating the purpose of the ... transaction.”).15
Faced with an ambiguous term and differing interpretations by the parties, this court is guided by two salient principles. The first is the doctrine of ejusdem generis. Under this canon of construction, “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.” Black’s Law Dictionary 594 (9th ed. 2009). While this canon of construction applies in a variety of contexts, Louisiana courts have accorded it primacy in interpreting mineral reservations. See Continental Grp., Inc. v. Allison, 404 So.2d 428, 431 (La.1981). In a typical reservation of “oil, gas, and other minerals,” the latter term “necessarily must be read in connection with the things [preceding it] ... and should be confined to things of that nature.” Holloway Gravel, 9 So.2d at 232-33. Otherwise, the specific examples would serve no purpose, because they would be encompassed by the general term. Id. at 233 (“Obviously, [the drafter] used the terms ‘oil and gas’ ... for some purpose, and what could he have intended if his purpose was not to limit or restrict the application of the more comprehensive term?”).
In applying the ejusdem generis canon, Louisiana courts typically look to the physical form of the material in question to determine whether it falls within the reservation clause. See River Rouge, 331 So.2d at 881 (determining that lignite coal was not covered by the reservation clause “on the basis of the physical properties of the mineral — gas or liquid as opposed to solid — rather than [its] elemental composition.”); Huie Hodge Lumber Co. v. R.R. Lands Co., 151 La. 197, 91 So. 676, 677 (1922). One reason for drawing this distinction is that extracting fugacious resources (such as oil or gas) is far less intrusive to the purchaser than removing solid materials (such as gravel, coal, or clay). See River Rouge, 331 So.2d at 879-80. The former can be accomplished “without great disturbance of the surface owner’s enjoyment of the property,” by drilling a narrow bore to a liquid or gaseous reservoir beneath the land. Id. at 879. By contrast, the latter “result[s] in the utter destruction of [the] surface.” Holloway Gravel, 9 So.2d at 233. When a purchaser agrees to permit the seller to retain oil, gas, and other substances, the purchaser rightfully expects that he or she will nonetheless be able to enjoy the surface of the property. See id.
A second guiding principle applied by Louisiana courts in interpreting reservation clauses is to construe an ambiguous or confusing clause against the drafter. See Huie Hodge Lumber, 91 So. at 678 (quoting Detlor v. Holland, 57 Ohio St. 492, 49 N.E. 690 (1898)); Holloway Gravel, 9 So.2d at 233. In *694Holloway Gravel, the court noted reprovingly that “[i]t would have been a very simple matter, granting that all the parties agreed to the reservation of sand and gravel, to have used those words in addition to the words ‘mineral, oil and gas rights.’ ” Holloway Gravel, 9 So.2d at 234. Yet the seller, who had insisted on including a mineral reservation clause, not only neglected to append sand and gravel to the provision but failed to discuss the substances during negotiations. Id. Consequently, the court limited the clause’s application to fugacious resources. Id.
Applying these principles derived from Louisiana law to the facts of this case, this court concludes that the reservation clause in the 1999 deed of sale covered only fugacious resources. First, the ejusdem gen-eris principle applies here with as much force as it did in Huie Hodge, Holloway Gravel, and River Rouge. CLL did not simply reserve all materials but rather withheld “oil, gas, and other materials.” PX 19-6. In keeping with Louisiana law, the term “other materials” in this clause “necessarily must be read in connection with the things [listed before it] ... and should be confined to things of that nature.” Holloway Gravel, 9 So.2d at 232-33. The government’s attempt to distinguish the clause in this ease is unavailing. The government places inordinate weight on the fact that CLL used the term “materials” instead of “minerals,” as is customarily done in such reservation clauses. Yet this distinction does not alter the fact that CLL “employed the terms ‘oil and gas’ ” in such a manner that could have “no other purpose than to define more particularly the [other materials] reserved.” Id. at 233. Most notably, oil and gas can be extracted with minimal disruption to the landowner’s enjoyment of the surface. The same cannot be said of clay mining.16
Alternatively and additionally, the reservation clause should be construed against CLL as the drafter. If CLL wanted to retain ownership of the land’s day deposits, “it would have been a very simple matter ... to have used [the word ‘clay’] in addition to” the phrase “oil, gas, and other materials.” Holloway Gravel, 9 So.2d at 234. Yet the contract omits any mention of clay, nor did Mr. Blair ever discuss the substance with Mr. Nguyen. Tr. 43:8-14 (Nguyen); cf. Holloway Gravel, 9 So.2d at 233.
Because the clause did not reserve ownership of clay to CLL, National Food became the owner of any clay deposits underlying the 663 acres it purchased from CLL. Thus, National Food has a compensable property interest in the 383,000 cubic yards of clay removed by Shaw, the Corps’ contractor. The court accordingly reaffirms its prior ruling in National Food II that National Food owned the clay and denies the government’s motion for reconsideration of that decision.
B. The Taking
Having found that National Food had a compensable property interest in the clay, the court must “determine whether the governmental action at issue amounted to a com-pensable taking of that property interest.” American Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed.Cir.2004) (citing Chancellor Manor v. United States, 331 F.3d 891, 902 (Fed.Cir.2003)). The court settled this issue when it granted National Food’s motion for partial summary judgment on the government’s liability. See National Food II, 103 Fed.Cl. at 69-70. No party disputes that the government’s agent occupied plaintiffs property for nine months, during which time it extracted some 380,000 cubic yards of clay. This act was unmistakably “a direct government appropriation or physical invasion of private property,” for which the United States owes just compensation. Lingle v. Chevron U.S.A Inc., 644 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005).
One detail remains unresolved: the timing of the taking. The government argues that the taking occurred on January 26, *6952006, when the President of Plaquemines Parish signed the Commandeering Order. Def.’s Post-Trial Br. at 11. National Food, on the other hand, claims that the date of taking should be reckoned by when Shaw entered upon its land and began excavating the clay, in June 2006. Pl.’s Post-Trial Br. at 15. The date of taking will determine the date of valuation of the property and the interest due to National Foods. See United States v. Dow, 357 U.S. 17, 22, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958) (“It is [the taking of possession] which ... fixes the date as of which the land is to be valued and the [g]ov-ernment’s obligation to pay interest accrues.”)
A physical taking begins when the government’s action “interferes with or substantially disturbs the owner’s use and enjoyment of the property.” Alder v. United States, 785 F.2d 1004, 1008 (Fed.Cir.1986) (quoting Pete v. United States, 531 F.2d 1018, 1031 (Ct.Cl.1976)); see also Petro-Hunt, L.L.C. v. United States, 90 Fed.Cl. 51, 59 (2009). Typically this is the date when the government actually takes possession of the land or other property. See, e.g., United States v. Dow, 357 U.S. 17, 22, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958). It is possible, however, that the sovereign’s activity may constitute a taking even though its agents have not yet entered upon the property. United States v. 15.65 Acres of Land, 689 F.2d 1329, 1334 (9th Cir.1982). To rise to the level of a taking, however, such interference must be “so complete as to deprive the owner of all or most of his interest in the subject matter.” R.J. Widen Co. v. United States, 357 F.2d 988, 993 (Ct.Cl.1966) (quoting United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945)).
Here, the government did not substantially disturb National Food’s use of the property until June 2006, when Shaw entered the land and began removing clay.17 The Commandeering Order by its own terms did not actually seize National Food’s property. Rather, it merely commandeered entry onto the property. In addressing a comparable commandeering order issued by a different parish after Hurricane Katrina, a Louisiana district judge noted that such orders are premised on a declaration of a local disaster or emergency. See Olivier Plantation, L.L.C. v. Parish of St. Bernard, No. 109-272, slip op. at 7, 2012 WL 1379464 (La.Dist.Ct. Mar. 12, 2012). Citing La.Rev.Stat. Ann. § 29:727, the Louisiana district judge ruled that a commandeering order had a limited duration: “The rights authorized and effective with the declaration of the emergency persist[ ] only as long as the situation upon which the emergency is declared continue[s], but not longer than thirty (30) days after the declaration, unless further affirmative action [is taken by] the parish president to extend the disaster declaration.” Id., slip op. at 9.18 Correlatively, the scope of the rights commandeered are limited in nature:
Commandeering of immovable property evidently purports to assign the landowner[’]s right of use ... to the public benefit, including the right of entry on the commandeered lands for a limited period of time. The act of commandeering immovable property is not a right in or to title of the land, nor is the owner divested of title by the commandeering order, although his right of use is suspended during the duration of the emergency declaration, when the use of the private property is applied for public benefit.
Id. As a result, in Olivier Plantation, “the commandeering order was only effective to impose on [plaintiffs property a temporary right of occupancy, entry[,] and access in connection with public use for ‘the repair, rehabilitation^] and maintenance of ... levees.’” Id., slip op. at 10. So too here. After the Commandeering Order was issued, *696National Food retained ownership of the land — and the clay — and could use it in any manner it pleased so long as it did not “interfere with or abridg[e] the rights” marked out in the Commandeering Order. PX 91-2. It was only in June 2006, when Shaw began physically removing the clay, that National Food lost its right to the substance.
The government argues that the Commandeering Order ought to be recognized as triggering the taking because it prohibited National Food from removing clay from its land. See Def.’s Posh-Trial Br. at 11. Yet the government’s position ignores the temporary nature of the Commandeering Order’s imposition. As the court observed in its prior opinion in this case, the order effected merely “a temporary taking of access to the clay deposit.” National Food I, 96 Fed.Cl. at 264. Later, “the Corps’ physical removal of clay effected a permanent taking of the excavated material.” Id. Moreover, during the interval between issuance of the Commandeering Order and Shaw’s arrival, National Food was free to continue to use the land as pasturage. The Commandeering Order by its own terms did not deprive National Food of all or even most of its interest in the property. See R.J. Widen, 357 F.2d at 993. The taking occurred later, on June 1, 2006, when Shaw occupied the land and began removing the clay.
C. Just Compensation
Having found that National Food has satisfied the pertinent two-part test for takings, see Hage, 687 F.3d at 1285-86, the amount of just compensation must be resolved. Courts have almost universally treated “just compensation” as the fair market value of property on the date it is appropriated. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 734, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (quoting Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 10, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984)). “Under this standard, the owner is entitled to receive ‘what a willing buyer would pay in cash to a willing seller’ at the time of the taking.” Kirby Forest Indus., 467 U.S. at 10,104 S.Ct. 2187 (quoting United States v. 564.54 Acres of Land, 441 U.S. 506, 511, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979)). The overarching aim of just compensation is to put the owner “in as good a position pecuniarily as if his property had not been taken.” Reunion, Inc. v. United States, 90 Fed.Cl. 576, 584 (2009) (quoting Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)).
1. The removed clay.
a. Applicability of the “no government demand" rule.
The Corps’ levee projects markedly affected the clay market in southern Louisiana after Hurricane Katrina. Although fair market value remains the touchstone for just compensation in eminent domain eases, “strict adherence to the criterion of market value may involve inclusion of elements which, though they affect such value, must in fairness be eliminated in a condemnation case.” United States v. Miller, 317 U.S. 369, 375, 63 S.Ct. 276, 87 L.Ed. 336 (1943). One such element is the price enhancement attributable to the government’s special demand for the property or product. See United States v. Cars, 337 U.S. 325, 333, 69 S.Ct. 1086, 93 L.Ed. 1392 (1949) (“It is not fair that the government be required to pay the enhanced price which its demand alone has created.”); see also United States v. Fuller, 409 U.S. 488, 492, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973). Consequently, “governmental demand for property should be disregarded altogether in assessing the fair market value of that property.” United States v. 320.0 Acres of Land, More or Less, 605 F.2d 762, 787 n. 32 (5th Cir.1979).19
The application of this “no government demand” principle is relatively straightforward in the context of construction materials. In assessing just compensation, the court cannot uncritically accept the market’s valuation for rock, gravel, clay, or similar resources. Rather, it must strive to discern what impact the government’s need has had on the demand for, and price of, the substance and then subtract that component from the going price. United States v. Whitehurst, 337 F.2d 765, 772 (4th Cir.1964) (re*697versing a condemnation award because the “record [was] replete with testimony relying on the sales of materials to the [government, and the [adjudicatory body] made no finding that it excluded or ignored such sales.”). This is true both when the court is determining the land’s highest and best use and when it is computing the overall value of the property taken. See J.A. Tobin Const. Co. v. United States, 343 F.2d 422, 424-25 (10th Cir.1965) (finding that the highest and best use of condemned land was not as a quarry because there was no market for stone apart from the government project); United States v. 158.76 Acres of Land, More or Less, 298 F.2d 559, 560 (2d Cir.1962) (“[T]he enhancement principle was violated by the refusal to exclude evidence of gravel sales directly connected with the government project.”); see also United States v. 22.80 Acres of Land, More or Less, 839 F.2d 1362, 1365 (9th Cir.1988); United States v. 121.21 Acres of Land, More or Less, 458 F.2d 568, 570-71 (8th Cir.1972); United States v. Rayno, 136 F.2d 376, 378-79 (1st Cir.1943).
National Food has argued strenuously that the “no government demand” rule should not apply in this case. First, it claims that the bulk of the government’s demand may be legitimately considered under the scope-of-the-project rule. This rule applies when (1) the government initiates a project, (2) the announcement of that project increases the value of surrounding properties, and (3) the government subsequently condemns a person’s land to complete the project. Under the project-scope principle, if that person’s property was not within the original scope of the project, he would be entitled to the increase in value attributable to his property’s proximity to the project. See United States v. Reynolds, 397 U.S. 14, 16-18, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970). National Food argues that the lion’s share of clay demand came from the Hundred-Year Protection project, whereas its property was condemned for the Task Force Guardian project.
The court does not regard the project-scope rule as the guiding principle in this ease. More pertinent, rather, is the broader doctrine that the government is not required to pay extra for property simply because it has great need of it. Courts have treated the project-scope rule as a special case of this larger “no government demand” principle. See Cors, 337 U.S. at 333, 69 S.Ct. 1086 (“[T]hese exceptions [including the project-scope rule] are merely illustrations of a principle which excludes enhancement of value resulting from the government’s special or extraordinary demand for the property.”); 820 Acres, 605 F.2d at 786 (“[The project-scope rule] is essentially yet another application of the ‘no value attributable to [government demand’ principle.”); 121.21 Acres, 458 F.2d at 570 (“The enhancement principle extends beyond the scope-of-the-project situation.”). The project-scope doctrine attempts to distinguish between “value attributable to [g]overnment demand and the value of [g]ov-ernment-eonferred benefits.” 820.0 Acres, 605 F.2d at 787 (internal quotation marks omitted). It “excludes compensation for the former but commands compensation for the latter.” Id. That distinction is not in play in this case, however. Neither Task Force Guardian nor the Hundred-Year Protection program confer special benefits that would influence the price of plaintiffs clay — instead, the main factor affecting the value of National Food’s property is the Corps’ extraordinary need.20
Second, National Food argues that applying the “no government demand” rule would offend the non-discrimination principle artic*698ulated in United States v. Commodities Trading Corp., 339 U.S. 121, 127-28, 70 S.Ct. 547, 94 L.Ed. 707 (1950). See Pl.’s Post-Trial Br. at 16-23. National Food contends that it ought to enjoy the spike in clay prices prompted by the Corps’ emergency demand because other landowners received such a premium when they sold their clay voluntarily to contractors.21 The facts of Commodities Trading are readily distinguishable from those of this case.22 Much more analogous are the numerous cases involving condemned borrow pits and mineral rights, cited supra, which state categorically that government demand must be ignored when calculating just compensation. Plaintiff cannot simply dismiss the weight of these precedents, as well as their progenitor Cors, by invoking a general principle of non-discrimination. Indeed, courts have accepted that the “no government demand” principle can impose privations on a condemnee noticeably greater than merely denying them a windfall granted to others. See United States v. Michoud Indus. Facilities, 322 F.2d 698, 709 (5th Cir.1963) (“While this rule may well work a hardship to a tenant who must relocate ... and who must unquestionably pay for the space later rented by him at ... an inflated [rate], it seems clear that the Supreme Court has settled this issue in such manner as to be binding on this [c]ourt.” (citing Cors, 337 U.S. at 333, 69 S.Ct. 1086)).
Lastly, National Foods appears to argue that, because the Corps voluntarily participated in the private market for clay, it must pay condemnees the higher price caused by those activities. See, e.g., Pl.’s Post>-Trial Br. at 22. It has cited no precedents to support this novel position. Notably, a number of appellate courts have applied the “no government demand” rule in situations where the government had previously been active in the market in its non-sovereign capacity. See United States v. Weyerhaeuser Co., 538 F.2d 1363, 1366 (9th Cir.1976) (holding that the government’s prior payments to a landowner for use of its road could not be considered in determining the fair market value of that road); United States v. Michoud Indus. Facilities, 322 F.2d at 703-04 (ruling that a valuation commission in a condemnation action improperly considered the government’s earlier leases in establishing the fair market value of a building); Carlstrom v. United States, 275 F.2d 802, 808-09 (9th Cir.1960) (refusing to consider evidence of rents paid by government for leases which “had been entered ... out of government necessity”).
The court concludes that the “no government demand” rule must be applied in this case. In calculating just compensation for the clay removed from the borrow pit, the court must sift through the market data and *699filter out those data points attributable to the Corps’ levee reconstruction efforts. This task may not be easy, but such is the mandate given by Cors and its progeny,
b. The highest and best use of National Food’s property at issue.
In assessing fair market value, the court looks to the highest and best use of the property at issue. See Board of Cnty. Supervisors of Prince William Cnty., VA v. United States, 276 F.3d 1359, 1364 (Fed.Cir. 2002) (quoting Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)). To establish the highest and best use of the property, a party must show a “reasonable probability that, at the time of the taking, the land was both physically adaptable for such use and that there was a need or demand for such use in the reasonably near future.” Id. at 1365 (citing United States v. 341.45 Acres of Land, 633 F.2d 108, 111 (8th Cir.1980)). The court does not confine its inquiry to “the use to which the property [was] devoted” at the time of the taking, but also considers “that use to which it may be readily converted.” United States v. Powelson, 319 U.S. 266, 275, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943); see also Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206 (1878) (holding that highest and best use should be “viewed not merely with reference to the uses to which [the land] is at the time applied, but with reference to the uses to which it is plainly adapted”).
National Food claims that the best use of the land subject to the Commandeering Order was as a clay pit, which is how the Corps exploited the property after taking possession of it. The government argues that its highest use was as pasturage, which is how plaintiff used the land prior to the taking. Manifestly, there is no question that National Food’s land was physically adaptable to serve as a borrow pit. The primary issue before the court is whether there was a demand for use of the land as a clay source in the reasonably near future, if one ignores the Corps’ own need for the material.
The evidence suggests that the market for clay in Plaquemines Parish was such that the land’s best and highest use was as a borrow pit. The court heard testimony from witnesses with direct experience buying and selling clay, all of whom indicated that there was a market for clay apart from the demand generated by the Corps’ levee repairs. An official from Shaw explained that his company had used clay for various projects that were not connected to the Corps. Tr. 157:5-9 (Scoville). Mr. Howell testified that thirty to forty percent of his clay sales were to pi’ivate entities or local governments. Tr. 904:16-19. CLL sold clay to up until 2001, well before Hurricane Katrina hit and the concomitant emergency demand arose for the material. Tr. 95:5-11; Tr. 96:12-17 (Blair). And Mr. Thibodaux testified that clay had commercial value apart from emergency levee repairs, as he secured contracts for clay in nearby Mississippi before the hurricane struck. Tr. 1919:25 to 1920:1; Tr. 1931:8-14. This clay went to a variety of projects, including as partial support for piers and abutments attendant to locally-funded bridges, as landfill caps and liners, and for private levees. Tr. 157:5-22 (Sco-ville); Tr. 904:3-15 (Howell); Tr. 1516:16 to Tr. 1517:5 (Herr).
Although the government’s experts did testify that there was no substantial demand for clay outside the Corps’ levee projects, DX 28-12 (Lizak Report); Tr. 2129:1-3 (Truax), this testimony was contradicted by the firsthand experience of participants in the clay market and suffered from methodological shortcomings. Mr. Lizak focused on the price per cubic yard of clay; on the question of most profitable use, he simply “followed the [government’s] directive to assume that the highest and best use of the subject property was as a clay borrow pit.” DX 28-12. Mr. Truax appears to have based his assessment of the highest and best use as pastureland at least in part on comparable sales of land in the area. Tr. 2133:15 to 2134:4. But as Mr. Lizak explained, the sales comparison methodology may be unreliable for determining the market value of a clay deposit. See DX 28-15 (Lizak Report) (“The sales approach has considerable limits or problems when applied to mineral transactions because timely mineral transactions are rare, because it is difficult to determine the actual sales *700price for minerals, and because mineral transactions rarely meet all of the comparable sales criteria.”)- In any event, the court is satisfied that clay was a valuable commodity in the southern Louisiana at the time of the taking, even ignoring the Corps’ special demand. National Food has shown its land was both physically adaptable for use as a clay pit and that there was a demand for such use around the time of the taking. See Board of Cnty. Supervisors, 276 F.3d at 1365.
e. The proper measure of the compensation.
The next question is how the court ought to quantify compensation for the taking. National Food argues that the proper measure is the royalty rate it would have received on the market, multiplied by the number of cubic yards extracted by the Corps’ contractor. The government counters that the appropriate yardstick is the fee value of the land, which presumably would take into account the presence of clay deposits.
The government is correct that courts are often reluctant to calculate the value of a mineral deposit by “estimating the number of tons in place and then multiplying the tonnage by a unit price per ton.” United States v. 91.90 Acres of Land, 586 F.2d 79, 87 (8th Cir.1978). Instructively, however, an exception to the disinclination to rely on volumetric measurement “occurs where the mineral deposit itself is the property being condemned,” for “[i]n such a ease the deposit is treated as merchandise rather than land.” 4 Nichols on Eminent Domain § 13.14[3]; see also United States v. 22.80 Acres of Land, More or Less, 839 F.2d 1362, 1364 n. 2 (9th Cir.1988) (approving a cubic-yard basis of compensation where “the government is taking the [material] itself, [and] not the overlying parcel of land”).23
The exception applies in this case, given the factual setting. The cases relied upon by the government all involve the incidental taking of undeveloped mineral deposits on land. See United States v. Sowards, 370 F.2d 87, 89 (10th Cir.1966) (government took land which had a coal deposit which was essentially unmarketable); Cloverport Sand & Gravel Co., Inc. v. United States, 6 Cl.Ct. 178, 181 (1984) (mineral deposit taken when government’s dam flooded condemnee’s property); Foster v. United States, 2 Cl.Ct. 426, 449-50 (1983) (land purchased for military base had dolomite deposits which had been reserved by plaintiffs’ predecessors-in-interest, and the government precluded a mineral lessor from quarrying on one tract); United States v. 13.40 Acres of Land, 56 F.Supp. 535, 536 (N.D.Cal.1944) (government had initially sought the rock on the land but eventually filed a condemnation action for the fee title). In this case, however, the government in 2006 was not interested in National Food’s land but rather the clay embedded in it. Under the terms of the Commandeering Order, the government did not take fee title to the land at all; rather, it was granted temporary access to the property. PX 91-2. Although the stated purpose of the right of entry was to “obtain borrow,” id., actually excavating clay was beyond the scope of the Commandeering Order. That the government removed and took the clay makes this case more analogous to 22.80 Acres, where the government took a large quantity of rock from plaintiffs land instead of taking the land itself. 839 F.2d at 1364 n. 2. In that situation, the appellate court saw no reason to disturb the trial court’s award of just compensation based on the volume of material removed. Id. at 1362. Similarly, this court believes that the best measure of the taking is not the value of the land per acre, but rather the value of the removed clay per cubic yard.
d. The fair market value of clay in Plaquemines Parish.
The court’s salient responsibility is to define just compensation for the taking of 383,-871 banked cubic yards of clay from National *701Food’s land in Plaquemines Parish in June 2006, absent the Corps’ demand. The parties each presented a pair of witnesses whose primary purpose was to assign a dollar amount for this purpose. Perhaps unsurprisingly, their estimates ran the gamut from $15.00 per cubic yard to essentially zero. It falls upon the court to assess the reliability of each witness’s valuations by weighing “the validity of the appraiser’s premises, procedures, and theories; the soundness of his oilier factual determinations; the comparisons he or she made; the methods the appraiser has followed and the formulae the appraiser has applied.” 4 Nichols on Eminent Domain § 13.01[6].
As a preliminary matter, this task is made difficult by the absence of any expert testimony directly on the price of clay absent the Corps’ demand. The government experts steadfastly insisted that there was no such market for clay prior to Hurricane Katrina, despite the aforementioned evidence to the contrary. DX 28-12 (Lizak Report); Tr. 2129:1-3 (Truax). The plaintiffs witnesses, on the other hand, did nothing to exclude the Corps’ demand from their proposed fair market values — both relied on the post-Katrina price of $25 a cubic yard as their starting points. See PX 316-12 (Wood Report); Tr. 895:13-17 (Howell). Testimony from a number of witnesses, including the parties’ experts, nonetheless provided evidence relating to a fair market value for clay that omits the Corps’ extraordinary need.
Dr. Wood’s methodology was to start with the supply contract price for clay ($25 per cubic yard), which necessarily reflected the government’s demand, and then to subtract the costs of excavation ($4.00 to $5.00), transportation ($5.80), and entrepreneurial profit ($1.50 to $2.00), leaving a royalty of up to $15.00. See Tr. 750:2-24; Tr. 859:16-21. While Dr. Wood has impressive academic credentials in the field of markets, e.g., Tr. 708:13-20, his experience with real estate appraisal — and in particular mineral appraisals — was limited, Tr. 721:19 to Tr. 722:3; Tr. 723:1-3. Correspondingly, though his opinion in this ease presents a cogent theoretical model of the clay market, it appears largely divorced from the realities on the ground.
Dr. Wood’s methodology had a relatively hypothetical foundation that departed from the “three generally accepted valuation methods for determining fair market value in condemnation procedures”: sales comparison, reproduction cost, and income capitalization. 4 Nichols § 13.01[10]; cf. Tulare Lake Basin Water Storage Dist. v. United States, 59 Fed.Cl. 246, 260 (2003). Under cross-examination, Dr. Wood revealed that crucial components of his valuation (i.e., the costs of excavation, transportation, and entrepreneurial fee) were derived entirely from a ten- to fifteen-minute, phone conversation with plaintiffs other main valuation witness, Mr. Howell. Tr. 782:12-23. He also admitted that he did not know whether the removal of National Food’s clay required any additional preparatory measures (such as discing, pumping, backfilling, etc.), nor how much it would cost Shaw to perform these measures. See Tr. 793:22 to 801:6; Tr. 819:12-25. Dr. Wood never attempted to find out whether landowners were actually receiving royalties within the range of his $8.00 to $15.00 estimate. Tr. 803:9-13. And in fact, none of the royalties disclosed during the trial were within his range.24 Given these weaknesses in his analysis, the court does not regard Dr. Wood’s valuation as reliable.
Similar problems adversely affected Mr. Howell’s estimate. He employed a methodology nearly identical to that employed by Dr. Wood and arrived at an estimate of $12.50 per cubic yard. Tr. 908:3. Yet he himself never paid a royalty near this amount. Tr. 900:21-23. Mr. Howell attempted to defend his estimate by explaining that his method “didn’t say that this is [the royalty] the landowner received” but rather “this is what the landowner could receive.” Tr. 591:8-10 (emphasis added). This approach does not aid the court. In a condemnation case, the court is charged with finding “the amount that a willing and informed buyer would pay a willing and informed seller in *702an arm’s length transaction,” not the most advantageous price possible to the seller. Innovair Aviation, Ltd. v. United States, 83 Fed.Cl. 498, 500 (2008).
Nor does the court find Mr. Howell’s alternative estimate to be of much greater value. Mr. Howell offered his contract with White Oak Realty as a point of comparison to suggest that the royalty for that clay, $7.45 per cubic yard, represents the fair market value for clay on National Food’s property. Tr. 592:12-22; 593:9-18. The court would be hesitant to accept a single data point as representative of fair market value under any circumstances, but it is particularly reluctant to do so here. Mr. Howell did not satisfactorily explain why that specific contract captures the fair market value of plaintiffs clay better than any of the other contracts he has — including his agreement with National Food to buy its clay at approximately half the price he agreed to pay White Oak Realty. See PX 231. Indeed, the Idlewild contract seems particularly ill-suited to represent the market because it is an outlier— its royalty rate is the highest Mr. Howell has paid for clay in southern Louisiana. Tr. 900:21-25.
Mr. Truax’s estimate offered on behalf of the government is, if anything, even less helpful. He proffered an estimate of $2,000 per acre for the land itself, assigning no value to the clay and wholly ignoring that the government in 2006 took clay, not the land.
Of the four primary witnesses, Mr. Lizak offers the most useful information regarding the market price of clay. His background and credentials are well suited to the task. He has had extensive experience evaluating mineral interests and has been certified as an expert in the field by numerous courts. See Tr. 2198:15 to 2205:5. Most important, however, was the thoroughness of his research and methodology. Rather than basing his estimate on an abstract model of the clay market or on a single contract royalty, Mr. Lizak obtained royalty information from more than twenty market actors. See DX 28-28. He also adjusted some rates and omitted others which in his professional judgment did not accurately reflect the market, explaining in reasonable detail why he reached those adaptations. 2271:1 to 2272:8.
The chief omission from Mr. Lizak’s analysis is a failing to include Evenstar’s contracts with White Oak Realty and National Food. DX 28-19. The reason behind this omission is understandable, however. Mr. Lizak was not certain whether the National Food contract had been fully executed, Tr. 2226:13 to 2227:4, and he did not receive a copy of the White Oak Realty contract until after he had submitted his report, Tr. 2287:4-11. Considered overall, Mr. Lizak’s analysis was helpful, and in general the court regards Mr. Lizak’s broad range of $2.00 to $4.00 per cubic yard as a starting point to determine the fair market value of National Food’s clay. See DX 28-21; Tr. 2276:9-11.
The court also heard testimony on the pre-Katrina price of clay from two other sources. Mr. Blair testified that CLL sold clay at a price of $14,000 to $15,000 per acre. Tr. 98:10-11. The relevance of this rate to the taking of National Food’s clay is questionable, however. These sales all happened five years or more before the Corps took possession of National Food’s land. Tr. 98:7-11. Additionally, Mr. Thibodaux stated that his company, ITS, negotiated a royalty rate of $1.75 per cubic yard before Hurricane Katrina. Tr. 1919:25 to 1920:1; Tr. 1931:8-14. This rate, however, is not entirely appropriate for National Food’s location. The clay ITS purchased was excavated from Hancock and Adams Counties in Mississippi, Tr. 1915:6-9, and, to be used in southern Louisiana, that clay had to be transported a considerable distance by barge. Given the significance of transportation costs, e.g., Tr. 150:17-25 (Seoville); Tr. 881:21-23 (Howell), the court finds that the Mississippi borrow pits were located in a different market and that market valued clay less than the one in Plaquemines Parish. As discussed supra, clay was an important commodity for various private and local projects in Plaquemines Parish, especially berms, levees, and liners. By contrast, in Mississippi, a lesser demand for clay existed. Proprietors of gravel and sand pits regarded the clay as “something they had to move out of their way to get to the sand and gravel,” which permitted Mr. *703Thibodaux to acquire it at a relatively cheap price pre-Katrina. Tr. 1935:1-11. Given the importance of transportation costs to the clay business, the pre-Katrina ITS contract provides a price floor for the market for clay in Plaquemines Parish.
Within the range identified by Mr. Lizak, the court finds that $3.25 per cubic yard is the best approximation of the fair mai’ket value of levee-suitable clay in Plaquemines Parish at the time of the taking, discounting any government demand. Wholly apart from the government’s need for clay to repair and enhance levees, Plaquemines Parish had a significant demand for clay for use in private and non-federal projects, and the proximity to points of use made the clay moderately more valuable than, for example, the Mississippi clay that was burdened by higher transportation costs. That this price was also the specific value identified by Mr. Lizak as his best estimate is also a factor to be taken into account, albeit a lesser one in the court’s view. As in Bass Enter. Prod. Co. v. United States, 133 F.3d 893, 896 (Fed.Cir.1998), just compensation at this level “is determinable even though it may not be precise but falls only within a reasonable range.” See also Todd v. United States, 155 Ct.Cl. 111, 126 (1961) (awarding just compensation where the “evidence furnishes no basis to determine with any preciseness the fair and reasonable value of plaintiffs’ fishing rights destroyed by defendant”).
2. The surface easements.
Compared to the clay, computing just compensation for the Corps’ remaining seizures is straightforward. To enable the extraction of clay from National Food’s property, the Corps took a temporary road easement over 2.16 acres and a temporary easement over 25.8 acres to serve as staging ground. When the government takes an easement, just compensation is typically reckoned by “the difference between the value of the property before and after the [g]ov-ernment’s easement was imposed.” Otay Mesa Property, L.P. v. United States, 670 F.3d 1358, 1364 (Fed.Cir.2012) (quoting United States v. Virginia Elec. & Power Co., 365 U.S. 624, 632, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961)). For a temporary taking, however, courts typically award “the fair rental value of the property for the period of the taking.” Id. (citing Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949)).
Mr. Truax testified extensively about the fee value of National Food’s land. He stated that, based on comparable sales in the area, plaintiffs property was worth about $2,000 per acre. DX 31-40; Tr. 2164:25 to 2165:3. He opined that the road easement deprived plaintiff of most of the use of those 2.16 acres and that the land was worth only $100 per acre after the imposition of the easement. DX 31-52; Tr. 2167:8-24. This valuation, however, was based upon the mistaken assumption that the road easement was permanent, not temporary. As for the temporary staging area, Mr. Truax assured a rental rate of approximately ten percent of the land’s fee value per annum. That would amount to $200 per acre per year. In his report, Mr. Truax stated that the proper compensation for an 18-month temporary easement would be about $7,740. DX 31-52. This estimate appears to be based on the premise that Shaw occupied the land for a year and one-half, however. During the course of the trial, the parties stipulated that Shaw actually occupied the property for approximately nine months. See Stip. ¶ 2.
National Food called no witness to challenge or rebut Mr. Truax’s valuations of the temporary easements. On the record developed at trial, the court does not have any evidentiary basis to question his assignment of $2,000 per acre as the fee value of National Food’s land and ten percent of that fee value as an appropriate rental amount per year. Consequently, the court will award National Food $324 for the temporary road easement on the 2.16 acres and $3,870 for the nine months that Shaw occupied the 25.8-acre staging area.
3. Interest.
As a prevailing plaintiff in an inverse condemnation suit, National Food is entitled to “the value of the property at the time of the taking,” and also “such addition as will produce the full equivalent of that *704value paid contemporaneously with the taking.” Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 67 L.Ed. 664 (1923). In other words, just compensation “includes a payment for interest.” Library of Congress v. Shaw, 478 U.S. 310, 317 n. 5, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). The interest awarded by the court ought to emulate what “a reasonably prudent person” would have received had he or she “invested the funds to produce a reasonable return while maintaining safety of principal.” Tulare Lake Basin Water Storage Dist. v. United States, 61 Fed.Cl. 624, 627 (2004) (quoting United States v. 429.59 Acres of Land, 612 F.2d 459, 464-65 (9th Cir.1980)).
The court regards the seven-year Treasury STRIPS25 rate as appropriate in this case. First, STRIPS reflect minimal risk because they are government-based securities. Second, seven years is a reasonable approximation of the duration between the taking and the date of judgment. Third, the Treasury STRIPS rate can easily be applied to provide comparable interest rates for similarly situated plaintiffs. See Georgia-Pacific Corp. v. United States, 640 F.2d 328, 365-66 (Ct.Cl.1980) (favoring uniform interest rates). In fact, the court has relied on Treasury STRIPS to supply interest rates in prior takings cases. See, e.g., Arkansas Game & Fish Com’n v. United States, 87 Fed.Cl. 594, 646-47 (Fed.Cl.2009), rev’d on other grounds, 637 F.3d 1366 (Fed.Cir.2011), cert. granted, - U.S. -, 132 S.Ct. 1856, 182 L.Ed.2d 641 (2012).
The court applies compound interest, given that the taking occurred over six years ago. The Federal Circuit has mandated compound interest where it is necessary “to accomplish complete justice” under the Takings Clause. Dynamics Corp. of Am. v. United States, 766 F.2d 518, 520 (Fed.Cir.1985) (quoting Waite v. United States, 282 U.S. 508, 509, 51 S.Ct. 227, 75 L.Ed. 494 (1931)). Here, Treasury STRIPS are zero-coupon securities that initially are valued at a deep discount from their face value, with imputed interest accruing to maturity, when the only payment on them is made. The imputed interest reflects a compounding factor.
CONCLUSION
For the reasons stated, the court finds that plaintiff has suffered a taking for which just compensation is due.26 National Food is entitled to $1,247,580.75 for the clay taken from the borrow pit, $324.00 for the road easement, and $3,870.00 for the storage easement over 25.8 acres of land, totaling $1,251,774.75. The court awards interest on this amount at the seven-year Treasury STRIPS rate from June 1, 2006 to the date the judgment is actually paid. Pursuant to RCFC 54(b), the court determines that there is no just reason for delay in entry of final judgment as specified. The clerk shall accordingly enter a final judgment at this time.
Subsequently, National Food may apply for an award of attorneys’ fees and expenses under Section 304(e) of the Uniform Relocation Assistance Act, 42 U.S.C. § 4654(c). In the interest of efficiency, proceedings to adjudicate such an application shall be deferred *705until after the judgment entered under RCFC 54(b) has become final as defined in 28 U.S.C. § 2412(d)(2)(G), including the conclusion of any appellate process on the final judgment.
National Food is awarded its costs of suit, if and to the extent that such costs are not encompassed by an award of fees and expenses under 42 U.S.C. § 4654(c).
It is so ORDERED.
. The description "PX — -” refers to plaintiff’s trial exhibits, and "DX-" refers to defendant’s trial exhibits. The number before the hyphen designates the particular exhibit being cited, and the number after the hyphen refers to a specific page of the exhibit.
. The density of a given volume of clay varies depending on whether it is banked, loose, or embanked. Banked clay is measured as it is found in a borrow pit. Loose clay is measured after the clay has been excavated and loaded onto a truck. And lastly, embanked clay is measured once the clay has been compacted in place on a levee. The parties have stipulated that 1 banked cubic yard is equivalent to 1.27 loose cubic yards. Notice of Stip. ¶ 1, Mar. 1, 2012 ("Stip.”), ECF No. 112. The ration of loose to embanked clay varies depending upon composition and condition, ranging from one and one-half to two cubic yards of loose truck-hauled clay to one yard of embanked clay.
The Stipulations filed by the parties in mid-trial will be cited as "Stip.”
. The clay removed amounted to 488,668 cubic yards in loose measure. Stip. V 1.
. The plaintiff's experts used the figure 23 miles between the subject property and die levee site. See, e.g., Tr. 750:5-8 (Test, of Stuart Wood); Tr. 906:14-18 (Test, of Jerry Howell). Shaw’s completion report and an expert testifying for the government stated that the distance was 28 miles. See DX 28-13 (Report of John Lizak) ("Lizak Report”); DX 33-3 (Narrative Completion Report for P24 Contract). In any event, the discrepancy of five miles is immaterial to the outcome of the case.
. The court did not find Mr. Howell qualified to provide expert testimony pursuant to Fed.R.Evid. 702; consequently, Mr. Howell’s testimony was limited to his personal experience in the clay market as a lay witness under Fed.R.Evid. 701. Tr. 634:1 to 635:7.
. At trial, Mr. Lizak stated that the royalty ranged between $2.00 and $4.00 per ton. Tr. 2276:9-11. Using his conversion factor of three tons to two cubic yards, see DX 28-20, this would equate to a range of $3.00 to $6.00 per cubic yard. This assessment generally corresponds with his final recommendation of $3.25 per cubic yard, Tr. 2275:1-5, but in terms it conflicts with his expert report, DX 28-22 (“The royalty rates provided by the market participants generally fell within the $2.00 per in-situ cubic yard to $4.00 per in-situ cubic yard") (emphasis added). Nonetheless, his derived royalty rates fell within a relatively narrowly circumscribed band of values.
. Mr. Truax was the only witness to question the conventional wisdom that the Corps’ need for clay resulted in an overall higher demand (and price) for the product. In his opinion, the record of land sales in the area did not reflect an increased demand for clay-bearing land following Hurricane Katrina. Tr. 2133:20 to 2134:4 (Truax). However, he admitted that he did not know for certain whether the tracts of land that were sold contained clay reserves; rather, he assumed that they did because in his view the "whole area is underlined with clay-based soil.” Tr. 2133:5-13.
. In the alternative. National Food alleged that it is the third-party beneficiary of the Cooperation Agreement and thus is entitled to the compensation promised by the federal government in that Agreement. Am. Compl. at 26-27.
. The government’s rationale for the formal condemnation was not readily apparent because it had removed the clay from the land more than three years earlier and had not occupied the land in the intervening time. Seemingly the only benefit the government would obtain from the formal condemnation might be to avoid complying with a backfill ordinance in Plaquemines Parish. See, e.g„ Tr. 800:21 to 801:18 (Wood).
.Shortly thereafter, the court issued formal notice to CLL of this lawsuit pursuant to RCFC 14(b), instructing it to file a pleading if it wished to assert an interest in the litigation. See Notice, Jan. 26, 2012, ECF No. 83. The company filed a motion to intervene a week before trial. See *691CLL’s Mot. to Intervene, Feb. 21, 2012, ECF No. 99. Two days later, however, it withdrew its motion and waived all claims relating to the present action. CLL’s Notice of Withdrawal of Mot. to Intervene, Feb. 23, 2012, ECF No. 102.
. In pertinent part, the Tucker Act provides that ”[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon 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 unliq-uidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).
. The government can raise and pursue this defense even though CLL has waived all claims related to this action. See supra, at 690-91 n. 11.
. At the time he gave his testimony at trial, Mr. Nguyen was 90 years of age. Tr. 41:16-22.
. The initial interaction between Mr. Nguyen and the Corps’ contractor, Shaw, shows that Mr. Nguyen found mining to detract from his enjoyment of the property. The encounter with the contractor resulted in gunshots, dead livestock, and police involvement. See Tr. 65:2-14 (Nguyen). And, when Shaw had ceased mining, Mr. Nguyen was left with an 18-acre lake or pond in the midst of his property.
. Carried to its farthest reach, the government’s interpretation of the reservation clause would border on the absurd. According to the government, CLL owns "quite literally ... all matter in or under the property.” Def.’s Post-Trial Br. at 24. If this understanding of the term were given effect, nothing prevented CLL from marching into the land the day after the sale and removing all of the soil to whatever depth it chose from the entire 563 acres.
. Prior to that time, the Corps and its agents entered upon the property only for limited purposes, such as undertaking survey work or making additional borings. See Tr. 1811:4 to 1812:9 (Thompson); Tr. 1856:1-5 (Pilie). However, nothing in the record suggests that these visits interfered with National Food’s use of the land, much less constituted possession.
. The evidentiary record does not indicate that the emergency declaration in this instance was ever extended by the President of Plaquemines Parish.
. For a discussion of the rationale for this rule, see 320.0 Acres of Land, 605 F.2d at 782-83.
. Courts have traditionally applied the project-scope rule where the government condemned the citizen's land after the project began. See Reynolds, 397 U.S. at 16-17, 90 S.Ct. 803 ("[T]he development of a public project may also lead to enhancement in the market value of neighboring land that is not covered by the project itself. And if that land is later condemned, ... the general rule of just compensation requires that such enhancement in value be wholly taken into account.”) (emphasis added); Miller, 317 U.S. at 376, 63 S.Ct. 276 ("If a distinct tract is condemned, ... other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the [gjovernment, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity.”). Here, the government took National Food's clay before the Hundred-Year Protection project was even confirmed. See Tr. 153:8-19 (Scoville); Tr. 535:15-18 (Herr).
. During trial, the parties sparred over whether National Food could have sold its clay to a contractor for the Hundred-Year Protection project. The government argues that National Food’s clay would not have met the criteria established by the Corps for qualifying clay. This contention is not well taken because the government indeed accepted as satisfactory clay embedded in a large number of acres of National Food's land. Nonetheless, this dispute is not material to determining just compensation in this instance because under the "no government demand" rule, the court must omit the price component attributable to the Corps’ extraordinary need, regardless of whether National Food's clay met the standards for the later and larger project.
. The condemnee in Commodities Trading had been hoarding pepper in the hopes of making a windfall when wartime price controls on the substance would be lifted. 339 U.S. at 122-23, 70 S.Ct. 547. It argued that just compensation should not be the pepper’s ceiling price but rather its "retention value,” i.e., the price the substance would have fetched if the owner had retained it until the price controls were lifted. Id. at 123, 70 S.Ct. 547. In rejecting this claim, the Court noted that only the rich would be able to avail themselves of this rule. Id. at 127, 70 S.Ct. 547. The less fortunate, who would either consume the pepper or sell it during the course of the war, could not claim to be stockpiling the substance and consequently would be entitled to only the price ceiling. Id. Moreover, the rule would also discriminate against those, who motivated out of patriotism, voluntarily sold their pepper stockpiles to the government. Id. The court worried that the promise of an enhanced retention value would thus discourage commodity brokers from selling to the government and so place "[a] premium ... on recalcitrance in time of war.” None of these considerations arise in the present case. Application of the "no government demand” rule here would not require the court to treat two condemnees differently based on whether they could afford to stockpile clay. Nor does it encourage clay-owners to withhold their supplies from market in anticipation of receiving a higher value from a taking.
. The Supreme Court accords trial courts discretion in selecting a methodology for gauging just compensation. See, e.g., United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U.S. 396, 402, 70 S.Ct. 217, 94 L.Ed. 195 (1949) ("Perhaps no warning has been more repeated than that the determination of value cannot be reduced to inexorable rules.”); Cors, 337 U.S. at 332, 69 S.Ct. 1086 ("The Court in its construction of the [takings clause] has been careful not to reduce the concept of 'just compensation' to a formula.”).
. Mr. Howell had initially promised to pay one property-owner $8.00 per cubic yard for clay. The owner agreed to subsequent price reductions, however, such that Mr. Howell paid an average of about $7.45 per cubic yard. Tr. 1150:20-21 (Howell).
. STRIPS stands for "Separate Trading of Registered Interest and Principal of Securities." STRIPS, TreasuryDirect, http://www. treasurydirect.gov/instit/marketables/strips/strips. htm (last visited August 28, 2012). Treasury STRIPS are "the individual interest payment components of a United States Treasury bond, payable semi-annually over the life of the bond.” Chill v. General Elec. Co., 101 F.3d 263, 265 n. 1 (2d Cir.1996). Each individual component becomes a separate marketable security:
For example, a Treasury note with 10 years remaining to maturity consists of a single principal payment, due at maturity, and 20 interest payments, one every six months over a 10 year duration. When this note is converted into STRIPS form, each of the 20 interest payments and the principal payment becomes a separate security.
STRIPS, TreasuryDirect, http://www. treasurydirect.gov/instit/marketables/strips/strips. htm (last visited August 28, 2012). In effect, "STRIPS are ... 'zero coupon’ securities. The only time an investor receives a payment from STRIPS is at maturity.” Id.
. The court DENIES the government's motion for reconsideration of the earlier ruling in National Food II that National Food owned the clay embedded in its land.
The court also DENIES plaintiff’s motion to supplement the trial record, filed July 31, 2012, ECF No. 136. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218296/ | OPINION AND ORDER1
LETTOW, Judge.
As initially filed, this pre-award bid protest challenged actions taken to remove the protestor, McTECH Corporation (“McTECH”), from a competition for a contract to build a conference center and dormitories at the Customs and Border Protection’s Advanced Training Center (“the training buildings”) in Harpers Ferry, West Virginia. McTECH was an incumbent contractor for other construction work at the Center, but it had been eliminated from the procurement competition on the ground that a potential conflict of interest existed based on a relationship with the entity that had designed the training buildings. McTECH was unsuccessful in contesting that elimination before the Government Accountability Office (“GAO”), after which McTECH filed its protest complaint in this court. Subsequent to the filing of the administrative record and MeTECH’s motion for judgment on the record, the procuring authority decided to rescind MeTECH’s disqualification and restore McTECH to the competition for the contractual award. Based upon this corrective action, the government contends that MeTECH’s protest is moot and should be dismissed. McTECH, however, has filed a supplemental complaint challenging the corrective action as unreasonable and insufficient. This pre-award *728protest consequently has devolved into a dispute over whether McTECH can mount a protest over the government’s corrective action at this inchoate stage of the procurement.
BACKGROUND2
A. The Procurement
Acting on behalf of the Department of Homeland Security’s Bureau of Customs and Border Protection, the Fort Worth District Office of the United States Army Corps of Engineers (“the Corps”) on August 29, 2011 issued Request for Proposals No. W9126G-ll-R-0128 (“the solicitation”), seeking offers to construct training buildings. AR 3-86 to - 4727; see AR 3-87, -94.3 McTECH and a number of other offerors responded to the solicitation.
On September 27, 2011, the contract specialist assigned to the solicitation received an anonymous telephone call in which the caller asserted that McTECH had a close relationship to the designer of the training buildings, BrooAexa Design Joint Venture, LLC (“BrooAexa Design J.V.”). AR 13-5159 (Contracting Officer’s Determination and Findings (Dee. 1, 2011)). A search of the Central Contractor Registration database indicated that McTECH and BrooAexa, LLC (“BrooAexa LLC”) had entered into six joint ventures. Id. The Contracting Officer wrote to McTECH, identifying the joint venture agreements and inquiring about a potential organizational conflict of interest (“OCI”). AR 21-5310 (Letter from Linda Eadie to McTECH (Sept. 29, 2011)). A day or so later, the agency received an e-mail from one of the prospective offerors, reporting that it had received an anonymous packet of information about McTECH and BrooAexa LLC. AR 13-5159. McTECH responded to the Contracting Officer denying the existence of an OCI and stating that it had never done work with BrooAexa Design J.V. AR 13-5160. McTECH acknowledged that it had entered into a mentor-protégé agreement with BrooAexa LLC. Id. On October 25, 2011, the Contracting Officer drew upon state corporate and registration documents to conclude that BrooAexa Design J.V. and BrooAexa LLC shared the same offices and manager, that either an actual or potential OCI existed, and that McTECH accordingly was disqualified from the competition for the contract to construct the training buildings. AR 13-5162 to -5163.
B. The GAO Protest
McTECH promptly filed a pre-award protest with GAO, contesting the disqualification and averring that no non-public information was passed between McTECH and either BrooAlexa entity. AR 31-5643 (McTECH Corp., B-406100, B-406100.02, 2012 CPD ¶ 97, at 5, 2012 WL 696526, at *3 (Comp.Gen. Feb. 8, 2012)). GAO also received and considered post-disqualification information submitted by McTECH, by the agency via an agency report and supplemental report, and by testimony from the Contracting Officer and others at a two-day hearing. See, e.g., AR 13-5158 to -5163 (Contracting Officer’s Determination and Findings); AR 17-5196 to -5209 (agency’s exhibits to Contracting Officer’s Determination and Findings); AR 27-5370 to -5521 (hearing testimony); AR 28-5522 to -5567 (hearing testimony).
Based upon these evidentiary materials, both those antedating and postdating the Contracting Officer’s decision to disqualify McTECH, GAO “f[ound] reasonable the C[ontracting ]0[ffieer]’s determination that Mc[TECH]’s close relationship to the designer of the construction project here created the appearance of an unfair advantage that *729could compromise the integrity of the procurement process.” AR 31-5646 (McTECH Corp., 2012 CPD ¶ 97, at 8, 2012 WL 696526, at *6). GAO accordingly denied MeTECH’s protest. Id.
C. The Instant Protest and the Corps’ Corrective Action
McTECH then filed a protest with this court, challenging anew the Contracting Officer’s disqualification. After the administrative record was filed, McTECH submitted a motion for judgment on that record, along with a motion to supplement the record with copies of three nondisclosure agreements signed by officials of BrooAlexa Design J.V. Pl.’s Mot. to Supplement the Admin. Record, Attach. 1, Apr. 2, 2012, ECF No. 21-3. Those non-disclosure agreements had been executed on a form that was appended to the design contract as a required item. See AR 32-5667 (Design Contract ¶ H.2.B (“The Contractor shall not use, disclose, reproduce, or otherwise divulge or transfuse to any persons any technical information or data licensed for use by the Government that bears any type of restrictive or proprietary legend except as may be necessary in the performance of the contract. Refer to the Rights in Data clause for additional information.”)); AR 33-5770, - 5820 (Design Contract, Modification P00002, § J, Attach. 4 (Department of Homeland Security Non-Disclosure Agreement, DHS Form 11000-6)); AR 33-5807 (Design Contract, Modification P00002, Statement of Work (First Revision) ¶ 10.1 (“All cost estimates and/or design documents are considered privileged information and are for official use only. The A[rehitect]/E[ngineer] shall not divulge the cost information and/or design documents to anyone outside C[us-toms and ]B[order ]P[rotection] unless authorized by the Contracting Officer in writing.”)). McTECH also averred that none of its joint ventures with BrooAlexa LLC was awarded any contract work and none of the joint ventures had become operational. Pl.’s Mem. in Support of Appl. for Temporary Restraining Order & Mot. for Prelim. Inj. at 14 & Attach. 3, Feb. 22, 2012, ECF No. 5. McTECH complained that the Contracting Officer had not “inquir[ed] as to whether there was any substance to th[e] Central ]C[ontraetor] Registration] Ij'oint venture] registrations” but rather had relied only on a “facial appearance” of a relationship. Id. at 14.
The government responded to MeTECH’s motion to supplement the administrative record by contending that the non-disclosure agreements signed by officials of BrooAlexa Design J.V. were never considered by the Contracting Officer in making her disqualification determination. Def.’s Opp’n to Pl.’s Mot. to Supplement the Admin. Record at 3. The government also sought and obtained an extension of time to respond to MeTECH’s motion for judgment on the administrative record. Order of April 23, 2012, ECF No. 28. On the day before the government’s response was due, it gave notice of its intent to take corrective action by restoring McTECH to the competition. See Def.’s Notice of Corrective Action, Apr. 24, 2012, ECF No. 31. On the next day, April 25, 2012, the Contracting Officer sent McTE.CH a letter advising that she had withdrawn her disqualification. See Pl.’s Mot. for Leave to File Am. Compl. Ex. 1 Attach. 1 (Letter from Linda Eadie to McTECH (April 25, 2012)), May 7, 2012, ECF No. 34-1. The Contracting Officer also sent all prospective offerors a memorandum on May 4, 2012, asking them to respond to questions asking whether their firms had any business arrangements with BrooAlexa Design J.V. or BrooAlexa LLC. Id. Attach. 2 (Mem. from Linda Eadie to Prospective Offerors (May 4, 2012)).
McTECH persevered in its protest, claiming that the corrective action was inadequate because the Contracting Officer asked offer-ors only about relationships with BrooAlexa Design J.V. and BrooAlexa LLC and ignored other firms that had participated in the design process, and because the Corps had left the same allegedly biased and dysfunctional procurement evaluation team in place. See Pl.’s Appl. for Temporary Restraining Order & Mot. for Prelim. Inj., May 7, 2012, ECF No. 35. McTECH requested that the government be barred from acting further to evaluate offers, or proceeding with the corrective action, or using the same source selection team, id. at 2, pending compliance with the Competition in Contracting Act of 1989, codified in relevant part in sections of *73010 U.S.C., and 48 C.F.R. Subpart 9.5, relating to a procurement authority’s responsibilities to address organizational conflicts of interest, id at l.4
On May 8, 2012, the government moved to dismiss the action, contending that the corrective action had rendered the entire protest moot. Def.’s Mot. to Dismiss at 10, ECF No. 38. The government emphasized that contracting officers “have broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition,” id. at 9 (quoting ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed.Cl. 57, 65 (2001), aff'd, 30 Fed.Appx. 995 (Fed.Cir.2002) (per curiam)), and that “the Corps [as procuring authority for Customs and Border Protection] has and will carry out the remedial action in good faith,” id. at 10 (citing T & M Distribs., Inc. v. United States, 185 F.3d 1279, 1285 (Fed.Cir.1999)). In the government’s view, the corrective action “completely and irrevocably eradicated the effects of the alleged violations.” Id. at 12 (quoting Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 940 (Fed.Cir.2007)).
McTECH responded to the government’s motion to dismiss by invoking RCFC 15(a)(1)(B) as a basis for submitting an amended complaint as of right. See Pl.’s Opp’n to Def.’s Mot. to Dismiss at 2, June 8, 2012, ECF No. 46; Am. CompL, June 1, 2012, ECF No. 43 (“Am. CompL”).5 By its Amended Complaint, McTECH reiterated its objections to the corrective action and its request for injunctive relief to ameliorate alleged deficiencies in the Corps’ process for addressing organizational conflicts of interest and evaluating the pending offers.
The court held a hearing on June 13, 2012, to consider the pending motions. At that hearing, the court observed that both the amended complaint proffered with McTECH’s motion for leave to file such a complaint and its subsequently filed amended complaint appeared to overlap. In addition, both addressed supplemental matters occurring after the original protest complaint had been filed. Hr’g Tr. 9:22 to 10:19 (June 13, 2012). The court concluded that RCFC 15(d) relating to supplemental pleadings applied rather than RCFC 15(a) concerning amended pleadings. Id. Because good cause had been shown for supplementation, however, the court allowed the supplemental complaint to stand as filed, and it deemed the motion for leave to file an amended complaint to be superseded. Hr’g Tr. 10:19-23.6 Also at the hearing, the government reiterated its motion to dismiss on mootness grounds, with that motion now pertaining to the supplemental complaint. Hr’g Tr. 12:9-21. At this stage of the litigation, that motion is the primary focus of dispute.
ANALYSIS
When McTECH filed its pre-award protest on February 22, 2012, this court acquired subject matter jurisdiction over this action under the first prong of 28 U.S.C. § 1491(b)(1), which grants this court “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract.” See Asia Pac. Airlines v. United States, 68 Fed.Cl. 8 (2005) (upholding jurisdiction over a pre-award protest of an agency decision to disqualify an offeror), appeals dismissed, 171 Fed.Appx. 837 (Fed.Cir.2006), 175 Fed.Appx. 346 (Fed.Cir.2006). With the Corps’ post-complaint decision to reinstate McTECH in the procurement, however, the government has challenged the court’s continuing jurisdiction, contending that “McTECH is on equal footing with all other offerors ... and can no longer claim to be an interested party with *731standing to seek to enjoin the agency’s official role in conducting th[e] solicitation.” Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss (“Def.’s Reply”) at 2, June 12, 2012, EOF No. 47. In essence, although the government refers to a lack of standing, it claims that McTECH’s pre-award protest has become moot.
The salient question is whether the Corps’ corrective action has “completely and irrevocably eradicated the effects of the alleged violation.” Chapman Law Firm, 490 F.3d at 940 (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). On the one hand, “a case will not be rendered moot by subsequent acts if some of the requested relief remains available.” BLR Grp. of Am., Inc. v. United States, 94 Fed.Cl. 354, 362 (2010) (quoting Intrepid v. Pollock, 907 F.2d 1125, 1131 (Fed.Cir.1990), and citing Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)), appeal dismissed, 460 Fed.Appx. 918 (Fed.Cir.2011). On the other hand, where a defendant’s actions have eliminated the possibility of meaningful relief, the case ordinarily should be dismissed as moot. See Deakins v. Monaghan, 484 U.S. 193, 200-01 & n. 4, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988).7
The supplemental complaint by McTECH poses two main objections to the Corps’ corrective action. First, in the amended complaint, McTECH avers that the corrective action will be implemented by a source selection team in the Corps’ Fort Worth District Office “that ha[s] demonstrated an unwillingness, inability, lack of interest, or lack of competence to properly develop and reasonably implement an OCI inquiry that comports with the rules governing OCI analyses,” namely 48 C.F.R. Subpart 9.5, particularly Section 9.504. Am. Compl. ¶ 120. Second, McTECH alleges that the Corps’ “corrective action plan is not reasonably broad enough in scope,” Am. Compl. ¶ 119, principally because it focuses only on relationships of offerors with BrooAlexa Design J.V. and BrooAlexa LLC, even though at least six other vendors either contributed to the design or provided the Corps with a projected cost estimation for the construction of the designed buildings, see Pl.’s Reply to Def.’s Opp’n to Mot. for Leave to Amend (“Pl.’s Reply”) at 3, June 4, 2012, ECF No. 44 (identifying six engineering and consulting firms, besides BrooAlexa Design J.V., that were listed on the project drawings).
McTECH’s first objection has been ameliorated by a step taken by the Corps approximately a month after the corrective action reinstating McTECH. On May 31, 2012, the Corps issued Amendment 9 to the Solicitation, assigning a new Contracting Officer and Contract Specialist. See Am. Compl. Attach. 10 (Amendment 0009 to Solicitation (May 31, 2012)). McTECH nonetheless complains that the new procurement team works in the same office as the prior source selection officials and may consult with the prior officials in making procurement decisions. Pl.’s Reply at 3. These adjusted and elaborated claims by McTECH about the new source selection officials, however, are too attenuated and speculative to serve as a continuing basis for equitable relief. Functionally, the Corps has replaced the originally assigned procurement officials, just as McTECH sought in its prayer for relief of the amended complaint.
*732McTECH’s second ground for contesting the Corps’ corrective action has a firmer foundation, however. To date, the only questions about actual or potential OCIs posed by the Corps relate to any relationships that may exist between and among offerors and BrooAlexa Design J.V. and BrooAlexa LLC. See Am. Compl. Attach. 9 (Mem. from Linda Eadie to Prospective Of-ferors (May 4, 2012)). The Corps appears to have made no inquiries about relationships between and among offerors and the other engineering and consulting firms that worked with BrooAlexa Design J.V. on the design for the buildings to be constructed.8
The government’s position also suffers from a legal flaw. It represents that McTECH is now on an “equal footing with all other offerors” and that it “can no longer claim to be an interested party with standing to seek to enjoin the [Corps’] official role in conducting this solicitation.” Def.’s Reply at 2. This argument, however, conflates the concepts of mootness and standing. As the Supreme Court explained in Laidlaw Environmental, 528 U.S. at 189-90, 120 S.Ct. 693, mootness and standing have different procedural connotations. A plaintiff has the burden to show standing, but “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 190, 120 S.Ct. 693 (citing Concentrated Phosphate Export Ass’n, 393 U.S. at 203, 89 S.Ct. 361). The Supreme Court noted that “there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.” Id. Whether or not this is such a ease insofar as standing is concerned, the government assuredly has not shown that McTECH’s claims of unreasonableness of the Corps’ corrective action are moot.
In addition, McTECH’s objections to the scope of the Corps’ corrective action plan and process for addressing OCIs arguably have to be brought at this pre-award stage of the procurement. Otherwise, McTECH might well risk having its objection foreclosed by application of the waiver rule enunciated in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed.Cir.2007). As Judge Allegra observed in CRAssociates, Inc. v. United States, 102 Fed.Cl. 698, 712 (2011), appeal pending, No. 2012-5037 (Fed.Cir.), “the rationale of Blue and Gold leads to the conclusion that a contractor should not be allowed to protest an agency’s failure to identify and mitigate an OCI when the contractor knew about the alleged OCI from the start, but failed to assert it, via protest, prior to the award.”
In sum, the court has juridical power to entertain a complaint challenging proposed corrective action, see Wildflower Int’l, Ltd. v. United States, 105 Fed.Cl. 362, 383-84 (2012); CBY Design Builders v. United States, 105 Fed.Cl. 303, 333 (2012); Jacobs Tech. Inc. v. United States, 100 Fed.Cl. 173, 176-77 (2011); Sheridan Corp. v. United States, 95 Fed.Cl. 141, 150 (2010), appeal dismissed, 453 Fed.Appx. 973 (Fed.Cir.2011); Ceres Gulf, Inc. v. United States, 94 Fed.Cl. 303, 316 (2010), and McTECH has stated a potentially viable challenge to the scope of the Corps’ corrective action in the amended complaint.
CONCLUSION
The government’s motion to dismiss McTECH’s amended complaint on mootness grounds is DENIED.
The parties shall file a joint status report on or before July 31, 2012, proposing a plan and schedule for further proceedings in this pre-award bid protest.9
It is so ORDERED.
. Because this opinion and order might have contained confidential or proprietary information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims ("RCFC”), it was initially filed under seal. The parties were requested to review this decision and to provide proposed redactions of any confidential or proprietary information on or before July 16, 2012. The single redaction is shown by asterisks enclosed by brackets, "[* * *]."
. The recitations that follow are taken both from the plaintiff's pleadings and attachments to the pleadings and from the administrative record of the procurement filed by the government. No question has arisen respecting the authenticity of any of the pertinent documentary materials.
. Citations to "AR-” are to the administrative record filed with the court on March 13, 2012 in accord with RCFC 52.1(a). The number before the hyphen refers to a particular tab, and the number after the hyphen denotes a specific page of the administrative record, e.g., "AR 3-86.” The pages of the administrative record are paginated sequentially without regard to the tabs.
Tab 3 constitutes the solicitation and includes detailed drawings, plans, and specifications for the construction of the buildings. As a result, that tab alone consists of more than 4,500 pages of materials.
. On May 9, 2012, the court held a hearing on McTECH’s application for a temporary restraining order and denied that application on the ground that McTECH had not shown any immediate injury attributable to the corrective action.
. In pertinent part, that rule provides that "[a] party may amend its pleadings once as a matter of course within ... 21 days after service of a responsive pleading ... [or] 21 days after service of a motion under RCFC 12(b), (e), or (f), whichever is earlier.” RCFC 15(a)(1), (a)(1)(B).
.See also Madison Servs., Inc. v. United States, 90 Fed.Cl. 673, 681 (2009) (permitting filing of a supplemental complaint where new allegations concerned events that post-dated the original filing).
. Several exceptions can prevent an otherwise moot case from being dismissed. For example, voluntary cessation by a defendant will not moot a case where a defendant could "return to his old ways." United States v. Concentrated Phosphate Exp. Ass'n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)); see also Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("[I]t is well settled that 'a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of [a] practice.’ ”) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)). Another exception pertains to circumstances where the challenged action is capable of repetition but would evade review. See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam) (citing Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), as "the first case to enunciate the 'capable of repetition, yet evading review’ branch of the law of mootness”).
. McTECH supplements this asserted ground for relief by putting forward an affidavit indicating that [* * *] an anonymous source that [* * *]. See Am. Compl. Attach. 6 (Aff. of Vincent Car-bone ¶¶ 20, 22 (Feb. 22, 2012)).
Recitations of and by anonymous informants have to be viewed with skepticism, as illustrated by the anonymous tip received by the original Contracting Officer regarding a relationship between McTECH and BrooAlexa LLC. The new Contracting Officer nonetheless will have a re*733sponsibility to investigate the most recent anonymous tip.
. The government's motion to waive, or alternatively, to stay the need now to answer the amended complaint is GRANTED IN PART. The parties are requested to address the need for an answer in the joint status report due July 31, 2012. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218297/ | OPINION and ORDER
HEWITT, Chief Judge.
Before the court are Plaintiffs Motion for Summary Judgment on Liability (plaintiffs Motion or Pl.’s Mot.), Docket Number (Dkt. No.) 97, filed October 25, 2011; Plaintiffs Proposed Findings of Uncontroverted Facts in Support of Its Second Motion for Summary Judgment (plaintiffs Proposed Facts or Pl.’s Facts), Dkt. No. 98, filed October 25, 2011; the United States’ Opposition to Plaintiff Dr. Cohen’s Motion for Summary Judgment and Cross-Motion for Summary Judgment that Dr. Cohen Is Entitled to No More than Seven Hundred and Fifty Dollars in Damages (defendant’s Cross-Motion or Def.’s Cross-Mot.), Dkt. No. 103, filed December 6, 2011; the United States’ Response to Plaintiff Dr. Cohen’s Proposed Findings of Uncontroverted Facts (Def.’s Resp. Facts), Dkt. No. 104, filed December 6, 2011; Plaintiffs Reply to United States’ Opposition to Plaintiff, Dr. Cohen’s Motion for Summary Judgment, and Plaintiffs Response to United States’ Cross-Motion for Summary Judgement that Dr. Cohen Is Entitled to No More than Seven Hundred and Fifty Dollars in Damages (plaintiffs Response or Pl.’s Resp.), Dkt. No. 105, filed December 30, 2011; and the United States’ Reply in Support of Its Cross-Motion for Summary Judgment, Dkt. No. 106, filed January 20, 2012.
Plaintiff attached a Supplemental Appendix in support of his Motion (Pl.’s App.), Dkt. Nos. 97-1 to 97-10. Defendant attached a Supplemental Appendix (Def.’s Supp. App.), Dkt. No. 103-1, in support of its Response.
Also before the court are Plaintiffs Supplement to Plaintiffs Response in Opposition to the United States’ Reply in Support of Its Cross[-M]otion for Summary Judgment (Pl.’s Supp. Resp.), Dkt. No. Ill, filed March 5, 2012, and the United States’ Supplemental Reply Pursuant to This Court’s Orders of February 9 and March 9, 2012 in Support of Defendant’s Cross-Motion for Summary Judgment, Dkt. No. 114, filed March 19, 2012. The court heard oral argument on the parties’ cross-motions on Wednesday, June 13, 2012 at 12:00 p.m. Eastern Daylight Time. See June 5, 2012 Order, Dkt. No. 121, at l.1
For the following reasons, defendant’s Cross-Motion is GRANTED and plaintiffs Motion for summary judgment is GRANTED-IN-PART and DENIED-IN-PART.
I. Background
This ease involves a copyright infringement suit by Dr. Norman H. Cohen (Dr. Cohen or plaintiff) against the United States in which Dr. Cohen has elected to receive an award of statutory damages. See Joint Status Report for Scheduling Pretrial Proceedings in This Case (JSR), Dkt. No. 92, at l.2
A. Plaintiffs Claims
Dr. Cohen contends that the United States, acting through the Federal Emergency Management Agency (FEMA), willfully infringed seven of plaintiffs copyrighted publications. Pl.’s Mot. 1-2. The seven publications allegedly infringed are a dissertation and six books or articles on mentoring. Pl.’s Facts 6-7 (listing seven works authored or edited by Dr. Cohen); see also Def.’s Cross-Mot. 1-2 (noting that plaintiff has accused the government of infringing the seven works listed in plaintiffs Proposed Facts). The allegedly infringed works are:
(1) Principles of Adult Mentoring Inventory {PAMI)
*737
(2)Principles of Adult Mentoring Inventory Trainer’s Guide {Trainer’s Guide)
(3) Article titled “The Principles of Adult Mentoring Scale” in Mentoring: New Strategies and Challenges, New Directions for Adult and Continuing Education (Principles Article)
(4) The Manager’s Pocket Guide to Effective Mentoring {Manager’s Pocket Guide)
(5) The Mentee’s Guide to Mentoring {.Mentee’s Guide)
(6) Mentoring Adult Learners: A Guide for Educators and Trainers {Mentoring Adult Learners)
(7) Development and Validation of the Principles of Adult Mentoring Scale for Faculty Mentors in Higher Education (Dissertation).
Pl.’s App. 396-569; see also Def.’s Cross-Mot. 1-2.3
Plaintiff alleges that multiple instances of infringement occurred when FEMA copied— at times with substituted words — PAMI in its entirety and significant portions of plaintiffs six other publications, used the copies during FEMA mentoring courses, and “published, distributed and displayed” the copies on FEMA’s public and internal websites. PL’s Mot. 1-2.
B. The Content of the Allegedly Infringed Material
PAMI, the publication that has been the focus of the parties’ briefing and which the court here uses as a reference point, is composed of a fifty-five question test, scoring instructions for the test, and a description of “The Mentor Role,” which includes both a list of six mentor objectives and descriptions of six mentor behaviors. Pl.’s App. 396-420 {PAMI).
The test, also referred to as an “inventory,” comprises fifty-five statements with respect to which an individual is to select a response among five choices — “Never,” “Infrequently,” “Sometimes,” “Frequently,” and “Always” — that “best represents your actual behavior as a mentor.” Id. at 399-406 {PAMI — Inventory) (emphasis omitted). For example, the first statement reads “I encourage employees to express their honest feelings (positive or negative) about their work-related experiences, including such dimensions as training, educational opportunities and social relationships.” Id. at 399 {PAMI).
The instructions for scoring the test assign a value from one to five that corresponds with each response such that “never” receives a value of one and “always” receives a value of five. Id. at 407-10 {PAMI — Scoring Instructions). The scoring instructions describe how to compute an overall score as well as individual scores within each of the six mentor behaviors. Id.
Finally, PAMI also contains a description of “The Mentor Role” as conceptualized by plaintiff. Id. at 411-18 {PAMI — Mentor Role Description). The description of the mentor role includes a list of six mentor objectives, each associated with one of six mentor behaviors: “1. Trust — Relationship!,] 2. Advice — Information!,] 3. Alternatives— Faeilitative[,] 4. Challenge — Confrontive[,] 5. Motivation — Mentor Model[, and] 6. Initiative — Employee Vision.” Id. at 411 {PAMI — Mentor Objectives) (emphasis omitted). “The Mentor Role” also describes six categories of recommended mentor behaviors. Id. at 412-17 {PAMI). For example, under the category “Relationship Emphasis Behaviors” is a list of five recommended behaviors:
• Practice responsive listening (verbal and nonverbal behaviors that signal sincere interest).
• Ask open-ended question related to expressed immediate concerns about actual situations.
• Provide descriptive feedback based on observations, rather than on inferences about motives.
• Use perception cheeks to ensure comprehension of feelings.
*738• Offer nonjudgmental, sensitive responses to assist in clarifying emotional states and reactions.
Id. at 412 {PAMI).
Nearly identical versions of the fifty-five statement inventory and similar scoring instructions appear in three of plaintiffs other publications. Id. at 560-69 (Dissertation); id. at 449-53 (Principles Article); id. at 543-59 (Mentoring Adult Learners). And similar descriptions of “The Mentor Role,” as illustrated by descriptions of the six mentor behaviors, appear in all seven publications in forms that may be more expansive, condensed, or that use different phrasing from those presented in PAMI. Id. at 555-557 (Dissertation); id. at 446, 452-53 (Principles Article); id. at 525-41, 551-53 (Mentoring Adult Learners); id. at 412-17 (PAMI); id. at 433-34 (Trainer’s Guide); id. at 462-67 (Manager's Pocket Guide); id. at 475-79, 485-518 (Mentee’s Guide). However, only four of plaintiffs publications include a list of six mentor objectives as part of plaintiffs description of “The Mentor Role.” See id. at 522 (Mentoring Adult Learners — Mentor Objectives); id. at 411 (PAMI — Mentor Objectives); id. at 430 (Trainer’s Guide — Mentor Objectives); id. at 481 (Mentee’s Guide— Mentor Objectives).
C. FEMA’s Allegedly Infringing Materials
The allegedly infringing materials are contained in four FEMA documents: (1) Mentoring Instructor Guide (FEMA Instructor Guide), (2) Mentoring Student Manual (FEMA Student Manual), (3) Mentor’s Toolkit (FEMA Toolkit), and (4) Mentor Training (FEMA Powerpoint). Id. at 238-395.4
The FEMA Instructor Guide and the FEMA Toolkit each contains slightly modified versions of the fifty-five statement test presented in PAMI. For example, the FEMA versions substitute “mentee” for “employee” and include the word “FEMA” Id. at 256-63 (FEMA Instructor Guide — Inventory); id. at 361-67 (FEMA Toolkit — Inventory). Accordingly, the FEMA-modified versions of the first statement in the inventory read, “I encourage mentees to express their honest feelings (positive or negative) about their career in FEMA” Id. at 256 (FEMA Instructor Guide — Inventory); id. at 361 (FEMA Toolkit — Inventory). The fifty-five statement inventory in the two FEMA documents is preceded by an acknowledgement such as “Adapted from N.H. Cohen, Principles of Adult Mentoring Inventory {PAMI), HRD Press, 1998.” Id. at 256 (FEMA Instructor Guide — Inventory); see also id. at 361 (FEMA Toolkit — Inventory).
All four FEMA documents — again with modifications — contain all or part of the description of “The Mentor Role” presented in PAMI. Id. at 270-78 (FEMA Instructor Guide — Mentor Role Description); id. at 301-12 (FEMA Student Manual — Mentor Role Description); id. at 324-26 (FEMA Toolkit — Mentor Role Description); id. at 385-91 (FEMA Powerpoint — Mentor Role Description).
For example, the FEMA Student Manual contains a modified list of the six mentor objectives that had been listed in PAMI: “1) Relationship — trust[,] 2) Information — specific advice[,] 3) Facilitative — alternatives];,] 4) Confrontive — challenge[,] 5) Role Model— motivation[,] 6) Critical Thinking — personal initiative and vision.” Id. at 301 (FEMA Student Manual — Mentor Role Description); see also id. at 411 {PAMI — Mentor Role Description). Similarly, the FEMA Power-point contains the following six word pairs: 1) Relationship Emphasis/Trust, 2) Information Emphasis/Adviee, 3) Facilitative Focus/Alternatives, 4) Confrontive Focus/Challenge, 5) Mentor Model/Motivation, and 6) Mentee Vision/Initiative. Id. at 385 (FEMA Powerpoint — Mentor Role Description). And in one section, the FEMA Toolkit lists the following five mentor behaviors:
• Responsive listening (verbal and nonverbal reactions that signal sincere interest)
*739• Open-ended questions related to expressed immediate concerns about actual situations
• Descriptive feedback based on observations rather than inferences of motive
• Perception checks to ensure comprehension of feelings
• Nonjudgmental sensitive responses to assist in clarification of emotional states and reactions[.]
Id. at 324 (FEMA Toolkit — Mentor Role Description).
D. Defendant’s Admission of Copyright Infringement
Defendant admits “that it copied the PAMI that includes a fifty-five question test, scoring system for interpreting the results of the test, and a description of the ‘complete mentor role’ as described by six mentor behaviors,” Def.’s Cross-Mot. 6., in at least two FEMA Documents, the FEMA Instructor Guide and the FEMA Toolkit, Def.’s Resp. Facts. 7.
E. The Court’s Three Prior Opinions
Previously, the court ruled that the continuing wrong theory of damages, which would permit plaintiff to reach back beyond the three-year statute of limitations (plus tolling) in 28 U.S.C. § 1498(b), did not apply to plaintiffs claim. See Cohen v. United States (Cohen I), 94 Fed.Cl. 165, 172-73 (2010). The court also found that there was a genuine issue of material fact regarding whether the tolling provision contained in 28 U.S.C. § 1498(b) is available to plaintiff. Id. at 174-75.
In Cohen v. United States (Cohen II), 98 Fed.Cl. 156 (2011), when addressing the government’s motion for reconsideration, id. at 159, the court determined that plaintiff was both a beneficial and legal owner of the allegedly infringed copyright interests relating to the HRD Press books, see id. at 161. The court also found that defendant could not be held liable for copyright infringement that occurred after March 15, 2004, the date that the government removed the allegedly infringing material from the FEMA website. Id. at 167-71.
And in Cohen v. United States (Cohen III), 100 Fed.Cl. 461 (2011), the court determined that plaintiffs expert, Dr. Ivan Zatko-vich, was precluded from testifying about the value associated with the public’s use of Dr. Cohen’s materials, see id. at 471-75, and that plaintiff could not recover actual damages for lost sales of non-infringed works or for future lost sales, id. at 482-84. The court also determined that there was a genuine issue of material fact relating to an alleged lost sale — the cancelled republication of Mentoring Adult Learners by the Krieger Publishing Company (Krieger), id. at 479-81 — and that defendant had waived its objection to the cancellation theory set forth by plaintiffs expert, id. at 471.
F.The Parties’ Cross-Motions for Summary Judgment
In his Motion now before the court, plaintiff seeks summary judgment that defendant is liable for the copyright infringement of seven publications authored or edited by plaintiff. Pl.’s Mot. 27-30. In its Cross-Motion, defendant seeks summary judgment that only PAMI had been infringed and that plaintiff is limited to $750.00 in statutory damages, an amount that may not be enhanced, even “as a result of alleged willful infringement.” Def.’s Cross-Mot. 1.
II. Legal Standards
A. Summary Judgment
Rule 56 of the Rules of the United States Court of Federal Claims (RCFC) provides, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” RCFC 56(a). The moving party has the initial burden of demonstrating “the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.” Crater Corp. v. Lucent Techs., Inc., 255 F.3d 1361, 1366 (Fed.Cir.2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).5 This *740burden may be discharged by “pointing out ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, the nonmoving party then bears the burden of coming forward with specific facts showing that there are genuine issues of material fact for trial. See id. at 324, 106 S.Ct. 2548; RCFC 56(c)(1).
A fact is material if it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” that is, when the proper resolution of the issue would require a trial. Id. at 248-50, 106 S.Ct. 2505; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In considering a motion for summary judgment, the court draws all inferences in favor of the non-moving party. See id.; Mann v. United States, 334 F.3d 1048, 1050 (Fed.Cir.2003) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
Legal issues raised by the parties’ briefing, although not the focus of the motion, may be resolved on summary judgment. See Delmarva Power & Light Co. v. United States, 79 Fed.Cl. 205, 214 (2007) (“The legal issues before the court may be resolved on summary judgment.” (citing Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1243-44 (Fed.Cir.2007))), aff'd, 542 F.3d 889 (Fed.Cir.2008); City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 214 n. 8, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005) (resolving the “case on considerations not discretely identified in the parties’ briefs,” and stating that the question addressed “is inextricably linked to, and is thus ‘fairly included’ within, the questions presented.”). While summary judgment may not be an appropriate vehicle to determine liability in a copyright infringement suit where reasonable minds could differ, see Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63-64 (2d Cir.2010); Trek Leasing, Inc. v. United States (Trek), 66 Fed.Cl. 8, 10-11 (2005), “it can be appropriate in certain circumstances,” Trek, 66 Fed.Cl. at 11 (listing cases in which courts have held that liability for copyright infringement was resolvable on summary judgment).
III. Discussion
A. The Number of Works at Issue
The United States Court of Federal Claims (Court of Federal Claims) has exclusive jurisdiction over copyright suits against the United States. 28 U.S.C. § 1498(b) (2006). Section 1498(b) of title 28 of the United States Code provides the government’s limited waiver of sovereign immunity for copyright infringement suits against the United States. See Walton v. United States, 551 F.3d 1367, 1371 (Fed.Cir.2009). Section 1498(b) states in relevant part:
[Wjhenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, ... the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code.
28 U.S.C. § 1498(b).
In general, to determine copyright infringement, the Court of Federal Claims *741examines the substantive law of copyright. RT Computer Graphics, Inc. v. United States, 44 Fed.Cl. 747, 754 (1999) (citing Steve Altman Photography v. United States, 18 Cl.Ct. 267, 279 (1989)); see also Act of October 19, 1976 (1976 Copyright Act), Pub.L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§ 101-805,1001-1205 (2006)). Under the 1976 Copyright Act, copyright infringement requires both “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. (Feist), 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see also Gaylord v. United States, 595 F.3d 1364, 1372 (Fed.Cir.2010) (quoting Feist, 499 U.S. at 361, 111 S.Ct. 1282); 17 U.S.C. § 501.
In a case in which a plaintiff pursues statutory damages, however, the court must also examine the provisions of 17 U.S.C. § 504(e), the section of the 1976 Copyright Act governing statutory damages. See 28 U.S.C. § 1498(b) (referencing “minimum statutory damages as set forth in section 504(e) of title 17, United States Code”); Wechsberg v. United States, 54 Fed.Cl. 158, 165-66 (2002) (discussing the intersection of the 1976 Copyright Act and 28 U.S.C. § 1498(b)). Statutory damages are calculated on a per-work basis and § 504(c) sets the range for statutory damages, absent willful conduct, at $750.00 to $30,000.00 per work. 17 U.S.C. § 504(c)(1). Section 504(e) further provides, “For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.” Id.
Accordingly, the court first addresses the parties’ cross-motions regarding how many works are at issue for the purpose of determining statutory damages.
1. Six of Plaintiff’s Publications Are Derivative Works Based on a Seventh Publication, Plaintiffs Dissertation
Defendant argues in its Cross-Motion that to the extent that six of Dr. Cohen’s works are “based upon one or more preexisting works,” such as his Dissertation, the six works constitute derivative works. Def.’s Cross-Mot. 9-10 (citing, inter alia, 17 U.S.C. §§ 101, 504(e)(1)). Although plaintiff has argued in previous rounds of briefing that this action concerns derivative works, Pl.’s Resp. in Opp’n to the United States’ Second Mot. for Partial Summ. J., Dkt. No. 75, at 27, he has since retreated from this position, see Pl.’s Resp. 5 n. 1 (arguing that Dr. Cohen’s use of the word ‘derivative’ as a layperson is dispositive of the issue before the Court, and somehow overrides use of the word ‘related’ ... is wrong”). Plaintiff responds to defendant’s contentions by arguing that each of his publications should be considered “separate works” for the purpose of determining statutory damages because they “were ‘issued separately,’ and ‘not together as a unit.’” See Pl.’s Resp. 4 (citing Arista Records, LLC v. Lime Group, LLC (Arista), No. 06 CV 5936(KMW) 2011 WL 1311771, at *3 (S.D.N.Y. Apr. 4, 2011) (unpublished)).
The 1976 Copyright Act defines a derivative work as “a work based upon one or more preexisting works.” 17 U.S.C. § 101. However, as courts have long recognized, “almost all works are derivative works in that in some degree they are derived from preexisting works.” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (Nimmer) § 3.01 (2011) (citing Emerson v. Davies, 8 F.Cas. 615, 619 (C.C.D.Mass.1845) (No. 4,436)); Pickett v. Prince, 207 F.3d 402, 406 (7th Cir.2000) (“A derivative work is, by definition, bound to be very similar to the original..”). For the purposes of copyright law, a work is a “derivative work only if it would be considered an infringing work.” 1 Nimmer § 3.01; Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp. (Well-Made Toy), 354 F.3d 112, 117 (2d Cir.2003), abrogated in part on other grounds by Reed Elsevier, Inc. v. Muchnick, — U.S. —, 130 S.Ct. 1237, 1248, 176 L.Ed.2d 18 (2010). If a work “sufficiently transforms the expression of the original work such that the two works cease to be substantially similar, then the ... work is not a derivative work and, for that matter, does not infringe the copyright of the original work.” Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 143 n. 9 (2d Cir.1998).
Plaintiffs Dissertation, published in 1993, is the first of plaintiffs writings to have been published. See Pl.’s App. 554 (Dissertation). *742It contains the earliest versions, organized in a series of tables and tailored for faculty mentors in higher education, of the fifty-five statement inventory, scoring instructions, and a description of “The Mentor Role” that is reorganized in another section as “The Faculty Mentor Role.” Id. at 554-69 (Dissertation).
Plaintiffs six remaining works, published in the five years after the publication of plaintiffs Dissertation, contain similar, and, at times, nearly identical, versions of several foundational elements of plaintiffs Dissertation.
All six post-Dissertation publications contain a modified description of six mentor behaviors found in plaintiffs Dissertation. See id. at 452-53 (Principles Article) (containing small organizational changes); id. at 528-41, 550-53 (Mentoring Adult Learners) (containing same); id. at 412-17 (PAMI) (containing small organizational changes and phrasing adjustments); id. at 433-34 (Trainer’s Guide) (containing the core purpose and definitions for each of the six mentor behaviors); id. at 462-67 (Manager’s Pocket Guide) (containing a description of the six mentor behaviors); id. at 478-518 (Mentee’s Guide) (containing a more expansive description of the six mentor behaviors). And three of the six post-Dissertation publications excerpted in the record contain a version of the fifty-five-statement inventory and scoring instructions. Compare id. at 560-66 (Dissertation — Inventory and Scoring), with id. at 449-452 (Principles Article — Inventory and Scoring) (containing an inventory tailored for faculty mentors); id. at 542-49 (Mentoring Adult Learners — Inventory and Scoring) (containing an inventory tailored for mentors in business and government); id. at 399-410 (PAMI — Inventory and Scoring) (containing same).
In addition, four publications also contain background information about mentoring and more expansive explanations about what “The Mentor Role” entails and about a fifty-five-statement inventory. Id. at 445-449 (Principles Article — Essay); id. at 522-41 (Mentoring Adult Learners — Text); id. at 424-431 (Trainer’s Guide — Text); id. at 475-518 (Mentee’s Guide — Text). And four of the six publications, Mentoring Adult Learners, PAMI, Trainer’s Guide, and Mentee’s Guide, contain a list of six mentor objectives. Id. at 522 (Mentoring Adult Learners — Mentor Objectives); id. at 411 (PAMI)', id. at 430 (Trainer’s Guide — Mentor Objectives); id. at 481 (Mentee’s Guide — Mentor Objectives).6
Viewing the facts in the light most favorable to the non-moving party, here, plaintiff, plaintiffs six post-Dissertation publications closely track the work of his Dissertation. While a given post-Dissertation publication may expand on plaintiffs doctoral work, each publication remains focused on and contains significant portions of, the ex-pi’ession in plaintiffs Dissertation, including a description of mentor behaviors, a fifty-five-statement inventory (including scoring instructions) and a list of mentor objectives.7 *743Because the fifty-five-statement inventory and the description of six mentor behaviors contained in plaintiffs Dissertation reappear, with some changes in form and phrasing, as the foci of plaintiffs remaining six publications, each of plaintiffs later six publications “would be considered an infringing work” when compared with plaintiffs preexisting work, his Dissertation.8 1 Nimmer § 3.01; Well-Made Toy, 354 F.3d at 117. Accordingly, the six works are derivative works within the meaning of 17 U.S.C. § 101. Cf. 1 Nimmer § 3.01.
Because plaintiff has pointed to no evidence in the record that would create a genuine issue of material fact regarding whether six of plaintiffs publications are substantially similar to his Dissertation such that they are “derivative works” under 17 U.S.C. § 101, defendant’s Motion for summary judgment on this issue is GRANTED.
2. Because Six of Plaintiffs Publications Are Derivative Works Based on His Dissertation, All Seven Publications Must Be Construed as a Single Work for Statutory Damages Purposes
Defendant argues that 17 U.S.C. § 504 and the cases interpreting the statutory damages provision relating to derivative works and compilations require that all of plaintiffs works be construed as a single work entitled to a single statutory damages award in this case. See Def.’s Cross-Mot. 9-10.
The 1976 Copyright Act provides that, for the purposes of statutory damages, “all the parts of a compilation or derivative work constitute one work.” 17 U.S.C. § 504(c)(1). The House Report accompanying the bill states in relevant part:
Where the suit involves infringement of more than one separate and independent work, minimum statutory damages for each work must be awarded. For example, if one defendant has infringed three copyrighted works, the copyright owner is entitled to statutory damages of at least $750 and may be awarded up to $30,000. Subsection (c)(1) makes clear, however, that, although they are regarded as independent works for other purposes, “all the parts of a compilation or derivative work constitute one work” for this purpose. Moreover, although the minimum and maximum amounts are to be multiplied where multiple “works” are involved in the suit, the same is not true with respect to multiple copyrights, multiple owners, multiple exclusive rights, or multiple registrations. This point is especially important since, under a scheme of divisible copyright, it is possible to have the rights of a number of owners of separate “copyrights” in a single “work” infringed by one act of a defendant.
H.R.Rep. No. 94-1476, at 162 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5778.
Accordingly, publications that constitute separate works for a purpose such as determining copyright infringement may be a single work for the purpose of statutory damages. Xoom, Inc. v. Imageline, Inc., 323 F.3d 279, 285 (4th Cir.2003) (“Although parts of a compilation or derivative work may be ‘regarded as independent works for other purposes[,]’ for purposes of statutory damages, they constitute one work.” (alteration in original) (quoting H.R.Rep. No. 94-1476, at 162, abrogated in part on other grounds by Reed Elsevier, Inc., 130 S.Ct. at 1248)); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 795 F.Supp. 501, 504 (D.Mass. 1992) (stating same and finding that derivative works could be separate works for the purpose of computing attorneys’ fees). In eases where plaintiffs have sought multiple statutory damages awards for derivative works (or parts of a compilation), courts have heeded “Section 504(c)(l)’s one-award restriction,” and have provided a single statutory damages award for derivative works (or parts of a compilation) that appear to eonsti-*744tute one work for statutory damages purposes. See, e.g., Bryant v. Media Right Prods., Inc., 603 F.3d 135, 141 (2d Cir.2010).
While the court has found little authority interpreting § 504(c)(1) solely in the context of construing allegedly infringed derivative works as a single work, courts have found that works that qualify as either “parts of a compilation” or as derivative works should be considered a single work for statutory damages purposes. See, e.g., Bryant v. Europadisk, Ltd., No. 07 Civ. 3050(WGY), 2009 WL 1059777, at *2, *7 (S.D.N.Y. Apr. 15, 2009) (unpublished) (finding only two works at issue in a ease involving two music albums in which the individual tracks and cover art had been registered and stating that, like the individual songs, “the albums’ cover art illustrations comprise ‘parts’ of the compilations and not separate works”); Kepner-Tregoe, Inc. v. Carabio (Kepner-Tregoe), No. 8-71025, 1979 WL 1072, at *17 (E.D.Mich. Apr. 20, 1979) (unpublished) (finding that one of the three allegedly copyrighted works was a derivative work and therefore would not be considered a separate work for statutory damages purposes); cf. Pearson Educ., Inc. v. Nugroho, No. 08 Civ. 8034(DAB)(AJP), 2009 WL 3429610, at *4-5 (S.D.N.Y. Oct. 27) (unpublished magistrate report and recommendation) (finding that defendant’s instructor’s solutions manuals were derivative works that infringed on plaintiffs copyrighted textbooks and were not separate works because they lacked “independent economic value” or copyright lives of their own), adopted by 2009 WL 4884098 (S.D.N.Y.2009).
For example, in Pavlica v. Behr, the United States District Court for the Southern District of New York (Southern District) addressed the issue of whether eight items— three different versions of a teacher’s manual, an addendum to the teacher’s manual, a workshop schedule, and three student workbooks — were each separate works, derivative works, or parts of a compilation. Pavlica, No. 03 Civ. 9628(DC) & 04 Civ. 8152(DC), 2006 WL 1596763, at *1 (S.D.N.Y. June 12, 2006) (unpublished). The Southern District found that “the eight items are not separate, independent works.” Id. Instead, it determined that the three versions of the teacher’s manual, the addendum to the teacher’s manual, and the workshop schedule “are part of a compilation or are derivative works that together can only be considered ‘one work’ for purposes of statutory damages.” Id. The court further determined that the three student workbooks were either derivative of each other or part of a compilation and should have been considered, together, a single work eligible for a separate statutory damages award. Id.
Similarly, the United States Court of Appeals for the Fourth Circuit held that, where a party had created two collections of images and the underlying images for each collection, there were only two works — which were either “compilations or derivative works”— and therefore the party could recover only two statutory damages awards. Xoom, Inc., 323 F.3d at 281-82, 285.
In this ease, six of plaintiffs publications are derivative works based on a seventh publication, plaintiffs Dissertation. See supra Part III.A.1. Because plaintiff has elected to receive statutory damages, only one “work” is at issue for statutory damages purposes, and plaintiff may receive only one award of statutory damages for any infringement of the seven publications. See 17 U.S.C. § 504(c)(1); Pavlica, 2006 WL 1596763, at *1; Xoom, Inc., 323 F.3d at 285.
Plaintiffs reliance on Arista, PL’s Resp. 4, is misplaced. In Arista, the court held that plaintiffs sound recordings, which had been issued as an individual track, could be considered for an award of statutory damages notwithstanding the fact that “plaintiff, at some point in time, also included that sound recording as part of an album or other compilation.” Arista, 2011 WL 1311771, at *3. Notably, the Arista court’s hypothetical scenario, in which a plaintiff had issued an album containing four songs (A, B, C, and D) and had also issued songs A and B as separate tracks, does not support plaintiffs theory of recovery. See id. at *4 n. 7. The Arista court reasoned that plaintiff could “recover three statutory damage awards: one award for song A, one award for song B, and one award for the compilation (of which C and D are a part).” Id. Nowhere did the Arista court indicate that a plaintiff could recover *745three separate statutory damages awards on the basis that A and B, issued as separate tracks, also reappear as parts a compilation. Id.
Accordingly, regardless of the number of derivative works or preexisting works that may have actually been infringed, only one work, at most, will be considered to have been infringed for statutory damages purposes. See Kepner-Tregoe, 1979 WL 1072, at *17. Because plaintiff has not shown that he is entitled to summary judgment as a matter of law that multiple works are at issue in this suit for copyright infringement, plaintiffs Motion is DENIED. Defendant’s Cross-Motion arguing that plaintiffs derivative works should be treated as a single work for statutory damages purpose is GRANTED.
The court therefore considers whether any one of the allegedly infringed works was, in fact, infringed.
B. Defendant Infringed, at Minimum, Plaintiffs Copyright in PAMI
A finding of copyright infringement requires that plaintiff own the relevant copyright interest and that defendant have copied “constituent elements of the work that are original.” Feist, 499 U.S. at 361, 111 S.Ct. 1282. Notably, the requirement of originality in the copyright context is quite low. Id. at 362, 111 S.Ct. 1282 (“As mentioned, originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way.”); see also 1 Nimmer § 3.03[A] (stating, with respect to derivative works, “In general, the applicable standard in determining the necessary quantum of originality is that of a ‘distinguishable variation’ that is more than ‘merely trivial.’ ” and “Any variation will not suffice, but one that is sufficient to render the derivative work distinguishable from its prior work in any meaningful manner will be sufficient.”).
The court has determined previously that plaintiff is the legal and beneficial owner of the allegedly infringed copyright interests in PAMI. See Cohen II, 98 Fed.Cl. at 161. And defendant has admitted that “it copied the PAMI that includes a fifty-five question test, scoring system for interpreting the results of the test, and a description of the ‘complete mentor role’ as described by six mentor behaviors.” Def.’s Cross-Mot. 6.9
Plaintiff asserts, and defendant does not contest, that a version of plaintiffs fifty-five-statement inventory and scoring system were copied from PAMI into two FEMA publications, the FEMA Instructor Guide and the FEMA Toolkit. See Pl.’s Mot. 13-14; Def.’s Cross-Mot. passim; Pl.’s App. 256-66 (FEMA Instructor Guide — Inventory and Scoring); Pl.’s App. 361-70 (FEMA Toolkit — Inventory and Scoring).
As plaintiff recognized, the portions of both the FEMA Instructor Guide and the FEMA Toolkit containing the fifty-five statements and scoring guide include a version of the following attribution: “Adapted from N.H. Cohen, Principles of Adult Mentoring Inventory (PAMI), HRD Press, 1998.” Pl.’s App. 256 (FEMA Instructor Guide); see also id. at 361 (FEMA Toolkit); Pl.’s Mot. 13. The fifty-five-statement inventory and the scoring instructions, with small changes, appear in the FEMA Instructor Guide and the FEMA Toolkit. Pl.’s App. 256-66 (FEMA Instructor Guide — Inventory & Scoring); id. at 361-70 (FEMA Toolkit — Inventory & Scoring).
Plaintiff also appears to argue that defendant infringed plaintiffs list of six “Mentor Objectives” and plaintiffs description of six “Mentor Behaviors” that appear in PAMI. *746PL’s Mot. 10-16. Specifically, plaintiff alleges that all four FEMA documents infringe plaintiffs description of six mentor behaviors found in PAMI and that three of the FEMA documents — the FEMA Instructor Guide, the FEMA Student Manual, and the FEMA Powerpoint — infringe the list of six mentor objectives found in PAMI. Id. at 14-15. Defendant does not dispute that it copied plaintiffs “Mentor Objectives” and the descriptions of the six mentor behaviors found in PAMI.10 See Def.’s Cross-Mot. 8-9.
Because there is no genuine issue of material fact that defendant directly copied PAMI, and because the court has determined previously that plaintiff is the legal and beneficial copyright owner of PAMI, plaintiffs Motion regarding defendant’s liability for copyright infringement of PAMI is GRANTED.11
C. In the Alternative, Only One Statutory Damages Award is Permitted Because Plaintiffs Allegedly Infringed Material Is Protected by a Single Copyright in PAMI
As the court has described, see supra Part III.A2, a plaintiff electing statutory damages may receive only one award of statutory damages per “work” infringed. See 17 U.S.C. § 504(e)(1). However, in a ease where a number of plaintiffs publications appear to contain identical or nearly identical copyrighted material, the appropriate initial inquiry for the court is the extent of the copyright in the original copyrighted work. See Silverman v. CBS Inc., 870 F.2d 40, 49-50 (2d Cir.1989). Specifically, the court examines whether the copied material — despite its appearance in several copyrighted derivative works — is covered by just one copyright, and whether it would therefore be unreasonable to consider multiple statutory damages awards. See Harry Alter Co. v. A.E. Borden Co. (Borden), 121 F.Supp. 941, 945-46 (D.Mass.1954) (finding that, in a case in which plaintiff sought to recover for infringement of each catalog edition in which the copyrighted material originally appeared, defendant’s infringing “A-45 catalog” infringed only one of plaintiffs catalogs); Walt Disney Co. v. Powell (Disney), 897 F.2d 565, 570 n. 10 (D.C.Cir.1990) (dismissing the possibility that separate damages were recoverable for the infringement of a copyright in a movie in which the characters Mickey and Minnie had appeared because plaintiff’s “infringement on the characters completely overlaps any infringement of the movie”); cf. 4 Nimmer § 14.04[E][l][b] (“[Wjhen defendant’s work copies various separate portions or passages of plaintiffs work, but all those portions are protected under a single copyright, then minimum damages are not to be multiplied by reason of the several, separately copied passages.”) (citing, inter alia, Borden, 121 F.Supp. 941).
Borden, a case that preceded the 1976 Copyright Act, involved a series of trade catalogs in which each of plaintiffs catalogs was copyrighted but significant portions of the material in each catalog were “repeated from previous catalogs.” Borden, 121 F.Supp. at 942-43. Plaintiff sought to recover multiple statutory damages awards, one for each of the previous editions of its catalogs in which the “items were originally published.” See id. at 945-46. The Borden court rejected this suggestion and, while relying on the sensible inference that defendant had only copied plaintiffs catalogs that were concurrent with defendant’s infringement and that contained the majority of the copied materials, commented that acceding to plaintiff’s request “would multiply the number of infringements far beyond the actual extent of [defendant’s] wrongdoing.” Id.
Like Borden, this case involves allegedly infringed material that reappears in a variety of publications authored by plaintiff. See *747supra Part III.A.1; Pl.’s Facts 7-10 (stating that “[t]he eight pages of Inventory questions” appear in four of plaintiffs publications and the description of the mentor role, including a list of mentor objectives and a description of six mentor behaviors, appears in all seven of plaintiffs publications); Def.’s Resp. Facts 6 (agreeing with plaintiffs statements insofar as the description of the mentor role is limited to the recitation provided by plaintiff of six mentor behaviors).
Indeed, the parties do not dispute that the allegedly infringed materials are composed primarily of a fifty-five-question “inventory” designed to assess how a candidate performs in six categories of mentor behaviors, directions for scoring and a description of “The Mentor Role,” see Pl.’s Mot. 9-13 (describing the inventory questions and the “basic objectives” of the six mentor behaviors); Def.’s Cross-Mot. 8-9 (“The only common elements that Dr. Cohen points to between the FEMA works and his asserted works [are] the questionnaire that makes up his inventory and the mentor behaviors and objectives that he lists on pages ten through 12 of his brief.”), which the court found were protected by a copyright in PAMI, see Cohen 11, 98 Fed.Cl. at 161 (finding that plaintiff was the legal and beneficial owner of the allegedly infringed copyright interests in PAMI). Nor do the parties dispute the text of the FEMA documents — (1) FEMA Instructor Guide, (2) FEMA Student Manual, (3) FEMA Toolkit, and (4) FEMA Power-point — that contain, to varying degrees, the allegedly infringing material. See Pl.’s App. 238-396 (providing copies of the four FEMA documents); Pl.’s Mot. 8, 14-15 (noting that the four FEMA documents “contained an adapted version” of PAMI)-, Def.’s Cross-Mot. 2-4, 6 (conceding that FEMA had copied “the PAMI that includes a fifty-five question test, scoring system for interpreting the results of the test, and a description of the ‘complete mentor role’ ”).
With the sole exception of a sentence that appears to have been copied from the Trainer’s Guide,12 Pl.’s Mot. 15-16; Def.’s Cross-Mot. 9, the allegedly infringed items — a fifty-five-statement inventory, scoring instructions, a list of six mentor objectives, and a description of six mentor behaviors — were protected at least as early as the publication of PAMI. It follows from Barden that, to the extent that defendant copied the protected materials in PAMI that also have appeared in other works authored by plaintiff, defendant only infringed on the single copyright in PAMI. See Borden, 121 F.Supp. at 945-46. To hold otherwise “would multiply the number of infringements far beyond the actual extent of [defendant’s] wrongdoing.” Id.
Plaintiff has not shown that he is entitled to judgment as a matter of law that multiple works are at issue, see supra Part III.A.2, or equivalently, that multiple statutory damages awards are merited, see Borden, 121 F.Supp. at 945-46. Therefore, on this alternative ground, plaintiffs Motion, insofar as it requests summary judgment that defendant in-fi’inged multiple works and is liable for multiple statutory damages awards, is DENIED. Defendant’s Cross-Motion, insofar as it au-*748gues that plaintiff is entitled to, at most, a single award of statutory damages, is GRANTED.
D. Defendant’s Argument that Titles Are Not Copyrightable Is Irrelevant to the Court’s Opinion on Summary Judgment
Defendant also contends that plaintiff accuses the government of copying without permission both plaintiff’s “expression set foi’th in the PAMI” and the (unprotectable) “ideas described in the PAMI.” Def.’s Cross-Mot. 6. Defendant argues that the list of six mentor objectives set forth in PAMI — (1) Trust — Relationship, (2) Advice — Information, (S) Alternatives-Facilitative, (4) Challenge — Confrontive, (5) Motivation — Mentor Model, and (6) Initiative — Employee Vision, PL’s App. 411 — are not “sufficient expression” to qualify them as copyrightable subject matter, id. (citing 37 C.F.R. § 202.1(a) (2011)). The court did not find a rebuttal to this argument in plaintiffs Response. Instead, plaintiffs Response, without specifically addressing whether the titles that identify the mentor behaviors are copyrightable, states that plaintiff has previously identified the “location and content of ... multiple instances of infringement.” Id. at 3.
Section 102 of title 17 of the United States Code makes clear that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” 17 U.S.C. § 102(b). And defendant is correct that 37 C.F.R. § 202.1(a) provides a list of materials that are not considered to be subject to copyright. See Def.’s Cross-Mot. 6. These materials include “[wjords and short phrases such as names, titles, and slogans; familiar symbols or designs.” 37 C.F.R. § 202.1(a) (2011). If the issue were whether defendant had copied only the categorical titles of the six mentor objectives, the court would be inclined to agree with defendant that no infringement would be possible. See id. But where the categorical titles are part of a larger work, i.e., PAMI, in which a substantial portion of the expression appears to be copied, this determination is immaterial. Defendant’s argument is irrelevant to the court’s determination of how many works were infringed for the purpose of statutory damages.
E. Damages
The 1976 Copyright Act permits plaintiffs to pursue either actual or statutory damages. 17 U.S.C. § 504(a); see also Cohen III, 100 Fed.Cl. at 476. And 28 U.S.C. § 1498(b) limits, by omission, the remedies available against the United States. 3 Nimmer § 12.01[E][1], n. 162 (examining the text of § 1498(b) and noting that “[i]t would therefore appear that, in actions against the government, the court lacks discretion ... to order” certain remedies). Section 1498 of title 28 provides that a copyright owner suing the government may seek only “the recovery of his reasonable and entire compensation as damages for [an] infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code.” 28 U.S.C. § 1498(b).
1. “Reasonable and Entire Compensation” by the Government Does Not Include Damages for Willfulness
Defendant asserts that plaintiff is not entitled to punitive damages for willful copyright infringement because the government has not waived its sovereign immunity for such damages. Def.’s Cross-Mot. 11-14. In this case, plaintiff argues that he merits increased damages — specifically, “maximum statutory damages,” Pl.’s Supp. Resp. 14-19 (capitalization omitted) — on the grounds that the government “willfully” infringed plaintiffs copyright, id. at 18 (“Ms. Zaidel’s willful posting of Plaintiffs works on the FEMA website clearly calls for increased statutory damages.”).
In Leesona Corp. v. United States (Leesona), the United States Court of Claims (Court of Claims) considered the government’s waiver of sovereign immunity for “reasonable and entire compensation” in the context of patent infringement. 220 Ct.Cl. 234, 244, 599 F.2d 958, 964-65 (Ct.Cl.1979). The Court of Claims held that the trial judge erred in converting what was essentially an eminent domain case into a tort case in which the trial judge considered the government’s *749“bad faith” and awarded punitive damages. Id. at 246-47, 599 F.2d at 966 (Ct.Cl.1979). The Leesona court stated that the law of eminent domain guides the court’s interpretation of “reasonable and entire compensation.” Id. at 248, 599 F.2d at 967 (“This court has traditionally searched the law of eminent domain for legal precedents and principles to apply in determining the ‘reasonable and entire compensation’ to be granted in a valid infringement action against the government.” (citing, inter alia, Tektronix, Inc. v. United States, 213 Ct.Cl. 257, 264, 552 F.2d 343, 346-47 (Ct.Cl.), modified, 213 Ct.Cl. 307, 557 F.2d 265 (Ct.Cl.1977))). The Leesona court stated, “The proper measure in eminent domain is what the owner has lost, not what the taker has gained.” Id. at 252, 599 F.2d at 969. The court explained that any waiver of sovereign immunity must be express and that, although punitive damages may indeed be a “salutary” lesson, “it is not one the United States has consented to.” Id. at 251-52, 599 F.2d at 968-69.
Recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that the analysis of “reasonable and entire compensation” in Leesona “applies with equal force in the § 1498(b) context, where courts must determine just compensation for the plaintiffs loss when the government takes what is essentially a compulsory, non-exclusive license on the plaintiffs copyright.” Gaylord v. United States, 678 F.3d 1339, 1343 (Fed.Cir.2012).
Plaintiff attempts to distinguish Leesona on the grounds that it concerned damages for patent infringement rather than the damages for copyright infringement at issue in this case. PL’s Supp. Resp. 19.
Contrary to plaintiffs arguments, however, plaintiff may not recover increased damages for allegedly willful infringement by the government. The government’s waiver of sovereign immunity in § 1498(b) for “reasonable and entire compensation” includes only compensation for what the owner lost. Gaylord, 678 F.3d at 1343. Leesona’s holding that “reasonable and entire compensation” for infringement actions is moored in the law of eminent domain and that, absent an express waiver by the government, the government cannot be held liable for willful infringement, “applies with equal force” to damages determinations in copyright actions against the United States. Id. Willfulness is not a proper consideration for the court in determining “reasonable and entire compensation,” therefore plaintiff cannot seek increased damages against the United States on the grounds that defendant’s behavior was willful.
Plaintiffs Motion on the issue of willfulness is DENIED. Defendant’s Cross-Motion regarding willfulness is GRANTED.
2. The Phrase “including the minimum statutory damages” in 28 U.S.C. § 1498(b) Limits Plaintiffs Pursuing “Reasonable and Entire Compensation” in the Form of Statutory Damages to the $750.00 Statutory Minimum
Defendant argues that any (single) statutory damages award against the government must be a minimum statutory damages award of $750.00. See Def.’s Cross-Mot. 14. Defendant argues that, under 28 U.S.C. § 1498(b), a plaintiff may elect to receive “ ‘just compensation’ in the form of [either] actual damages or ‘minimum statutory damages.’ ” Id. at 14. Defendant argues in the alternative that, even if § 1498(b) permitted a plaintiff to recover a damages award “within the entire range of basic statutory damages,” id. at 33, any award to Dr. Cohen would still be confined to $750.00 due to an absence of evidence or legal theories to support a statutory damages award higher than the minimum, see id. at 26-32.
Plaintiff responds that the government’s waiver of sovereign immunity in 28 U.S.C. § 1498(b) is a waiver for “reasonable and entire compensation” that includes “‘minimum statutory damages as set forth in section 504(c) of title 17,’ ” Pl.’s Supp. Resp. 11 (quoting 28 U.S.C. § 1498(b)), but does not limit a plaintiff who elects statutory damages to the minimum of the statutory damages range, id. at 11-14 (citing, inter alia, Wechs-berg, 54 Fed. Cl. at 165-66 (finding that under § 1498(b), $750.00 constituted the floor but not the ceiling for a copyright plaintiff who elected statutory damages)). Plaintiff as*750serts that he should instead recover “maximum statutory damages” as full compensation for defendant’s “willful infringement.” Id. at 14 (some capitalization omitted).
In the briefing on Cohen III, the parties also raised these issues, which the court did not address because “these legal issues addressing statutory damages are speculative ... [because] Dr. Cohen has not advised the court that he is electing an award of statutory damages instead of actual damages.” 100 Fed.Cl. at 484. The Federal Circuit has not yet addressed the issue of whether the language of § 1498(b) permits a plaintiff who has elected to receive an award of statutory damages may receive more than the minimum statutory damages of $750.00. The only other ease of which the court is aware that has addressed this issue ruled that § 1498(b) did not limit a plaintiff who elected statutory damages to the minimum of the statutory range. Wechsberg, 54 Fed.Cl. at 165-67.
a. The Text of 28 U.S.C. § 1498(b) and Statutory Damages
The text of a statute is the starting point for statutory construction. Zoltek Corp. v. United States (Zoltek), 672 F.3d 1309, 1318 (Fed.Cir.2012) (“It is fundamental that ‘[t]he starting point in every case involving construction of a statute is the language itself.’ ” (alteration in original) (quoting Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977))); Mission Critical Solutions v. United States, 91 Fed.Cl. 386, 395 (2010) (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 98, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)). And because “[s]ection 1498 waives the United States’ sovereign immunity from suit ... it must be strictly construed in favor of the United States.” Zoltek, 672 F.3d at 1318 (citing Blueport Co. v. United States, 533 F.3d 1374, 1378 (Fed.Cir.2008)).
Section 1498(b) states in relevant part:
the exclusive action which may be brought for [copyright] infringement [committed by the United States] shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code.
28 U.S.C. § 1498(b) (emphasis added). Section 1498(b) permits suit by a copyright owner against the federal government “whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States.” Id. However, it specifies that the “action by the copyright owner” must be “for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17.” Id.
The phrase “statutory damages” in § 1498(b) appears not alone, but as part of the phrase “the minimum statutory damages as set forth in section 504(c) of title 17.” Id. “Minimum” indicates lowest end of a given range, The American Heritage Dictionary of the English Language 1121 (5th ed. 2011) (defining “minimum” as meaning, among other things, “[t]he least possible quantity or degree” or “[t]he lower limit of variation”). And the referenced statute, § 504(c) of the 1976 Copyright Act, provides that “the copyright owner may elect ... instead of actual damages and profits, an award of statutory damages ... with respect to any one work ... in a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). Following the cross-reference in § 1498(b) to the 1976 Copyright Act, it is apparent that the phrase “the minimum statutory damages” means $750.00.
Plaintiffs interpretation of the statute— which would make available the entire range of statutory damages upon an election of statutory damages, PL’s Supp. Resp. 10-14— is unpersuasive because such an interpretation renders the word “minimum” meaningless. Under plaintiffs reading, a hypothetical statute that read “reasonable and entire compensation as damages ..., including statutory damages,” would have the same meaning as the actual statute, which states “including the minimum statutory damages.” 28 U.S.C. § 1498(b) (emphasis added). Further, if Congress wished to ensure that the entire statutory range was available, as plain*751tiff suggests, Congress would not have specified “the minimum statutory damages,” which can refer only to one end of the statutory range ($750.00). See 17 U.S.C. § 504(c)(1).13 Because plaintiff’s reading does not give effect to the word “minimum,” the court declines to adopt plaintiffs interpretation of the statute. Cf. Holm v. United States, 524 U.S. 236, 249, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (“We are reluctant to adopt a construction making another statutory provision superfluous.”); Kawaauhau v. Geiger, 523 U.S. 57, 62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (stating same).
b. Congress is Presumed to Be Aware of Prior Judicial Decisions
“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). In addition, when “Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Id. But see Henderson v. Shinseki 589 F.3d 1201, 1215-16 (Fed.Cir.2009) (“The ‘re-enactment rule’ delineated in Lorillard does not establish congressional acquiescence in all situations.”) (citing Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 130 n. 5 (2d Cir.2004), vacated and remanded on other grounds, 546 U.S. 1147, 126 S.Ct. 1189, 163 L.Ed.2d 1125 (2006)), rev’d on other grounds, — U.S. -, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011).
When Congress passed legislation in 1960 (the 1960 Act), amending 28 U.S.C. § 1498 and adding a reference to minimum statutory damages, it borrowed from the then-existing version of 28 U.S.C. § 1498(a), which, at that time, provided a limited sovereign immunity waiver for patent infringement suits against the United States, and from the 1909 Copyright Act, Act of March 4, 1909, 35 Stat. 1075,14 the then-existing copyright statute governing disputes between private parties. See Pub.L. No. 86-726, 74 Stat. 855 (codified as amended at 28 U.S.C. § 1498(b)).
Before the passage of the 1960 Act, Congress’s waiver of sovereign immunity for patent infringement by the United States provided for the “recovery of [the patent owner’s] reasonable and entire compensation for such use and manufacture.” 28 U.S.C. § 1498 (1958); see also Zoltek Corp. v. United States, 51 Fed.Cl. 829, 835-36 (2002) (describing the history of the 1910 patent statute that eventually became § 1498(a)). Judicial decisions construing prior versions of 28 U.S.C. § 1498(a) likened the statute to an eminent domain statute. See, e.g., Irving Air Chute Co. v. United States, 117 Ct.Cl. 799, 802, 93 F.Supp. 633, 635 (Ct.Cl.1950). And evidence supporting “reasonable and entire compensation” for the unauthorized use of a patent took such forms reasonable royalties based on the actual cost, albeit to defendant, of manufacturing products that utilized plaintiffs patents. Nat’l Elec. Signaling Co. v. United States, 99 Ct.Cl. 646, 661, 49 F.Supp. 768, 775 (Ct.Cl.1943) (“[I]n the circumstances, a proper measure of the reasonable and entire compensation to which the owner of the patents is entitled is a reasonable royalty based on the cost to the government of the radio receivers embodying the heterodyne inventions covered by the patents in suit.”); see also Ordnance Eng’g Corp. v. United States, 96 Ct.Cl. 278, 290-91 (Ct.Cl.1942) (finding 7.5% of the fac*752tory cost of production of infringing shells, less certain deductions, to be a reasonable royalty). However, § 1498(a), while perhaps a general model for § 1498(b), H.R.Rep. No. 624, at 3 (1959), is of limited use in the present inquiry, because it contains no parallel provision for minimum statutory damages.
In contrast, the 1909 Copyright Act, like the 1976 Copyright Act now in effect, provided that a private plaintiff could choose either to proceed with proof of actual damages and profits, or “ ‘in lieu of actual damages’ ” to receive statutory damages in an amount that the court determined to be just. L.A. Westermann Co. v. Dispatch Printing Co. (Westermann), 249 U.S. 100, 104, 106, 39 S.Ct. 194, 63 L.Ed. 499 (1919). Judicial decisions under the 1909 Copyright Act defined minimum statutory damages and identified some of the differences between actual and statutory (or “in lieu”) damages. The United States Supreme Court (Supreme Court) in Wester-mann held, with regard to the statutory damages provisions of the 1909 Copyright Act, that the trial court had erred in awarding statutory damages below the minimum of the statutory range provided in the 1909 Copyright Act, thereby determining that the statutory minimum provided a solid floor for a plaintiff’s election of statutory damages. Id. at 109, 39 S.Ct. 194; 4 Nimmer § 14.04[B][l][a] n. 29 (noting that Wester-mann “is equally applicable under the current [Copyright] Act”). The Westermann Court also counseled that, while a court must stay within the statutory damages limits, “[wjithin these limitations the court's discretion and sense of justice are controlling.” Westermann, 249 U.S. at 106-07, 39 S.Ct. 194.
The Supreme Court observed subsequently with respect to the statutory damages section of the 1909 Copyright Act:
The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties, and to give the owner of a copyright some recompense for injury done him, in a ease where the rules of law render difficult or impossible proof of damages or discovery of profits. In this respect the old law was unsatisfactory.
Douglas v. Cunningham, 294 U.S. 207, 208-09, 55 S.Ct. 365, 79 L.Ed. 862 (1935); see also F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 231-32, 73 S.Ct. 222, 97 L.Ed. 276 (1952).
The court will not presume that Congress, when it specified “the minimum statutory damages, as set forth in section 504(c) of title 17,” 28 U.S.C. § 1498(b), was unaware that courts viewed judicial discretion as a controlling factor in the determination of statutory damages under the range provided in the 1909 Copyright Act, see Lorillard, 434 U.S. at 580-81, 585, 98 S.Ct. 866; Westermann, 249 U.S. at 106-07, 39 S.Ct. 194. Nor is the court convinced that Congress did not know that the statutory minimum set a firm floor for judges and had been had been viewed as an alternative form of damages when actual damages were difficult or impossible to prove. See Lorillard, 434 U.S. at 580-81, 585, 98 S.Ct. 866; Douglas, 294 U.S. at 208-09, 55 S.Ct. 365; Westermann, 249 U.S. at 106-07, 39 S.Ct. 194. Accordingly, the court is persuaded that Congress intended to provide minimum statutory damages upon election or as damages in the absence of proof of actual damages.
c. The Legislative History Suggests Only General Similarities to § 1498(a) and Does Not Support a Suit for the Full Range of Statutory Damages
“ ‘Absent a clearly expressed legislative intention to the contrary, [the statute’s plain] language must ordinarily be regarded as conclusive.’ ” Wyeth v. Kappos, 591 F.3d 1364, 1369 (Fed.Cir.2010) (alteration in original) (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). The plain language of the statute, which does not mention the full range of statutory damages, is not contradicted by its legislative history.
The legislative history does not address whether the government’s waiver of sovereign immunity in § 1498(b) also permits copyright owners suing the government to seek the full range of statutory damages *753($750.00-$30,000.00) available under 17 U.S.C. § 504(c). The legislative history of § 1498(b) states in part: “The bill is based, generally, upon provisions similar to those now existing in Federal law for patents, but with modifications appropriate to the nature of copyright property.” H.R.Rep. No. 624, at 3. The legislative history therefore suggests that § 1498(b) was modeled generally on existing federal patent law, “but with modifications” specific to the copyright context. Id.
The only meaningful reference to statutory damages is a comment by a witness responding to another witness’s perception of the inadequacy of minimum statutory damages, see To Amend Title 28 of the United States Code Relating to Actions for Infringements of Copyrights by the United States: Hearing on H.R. 4059 Before the Subeomm. on Patents, Trademarks, and Copyrights of the S. Comm, on the Judiciary, 86th Cong. 20 (statement of George D. Cary, General Counsel, Copyright Office, Library of Congress) (responding to a comment from another witness regarding the inadequacy of minimum statutory damages in the face of legal fees for a plaintiff who elected statutory damages that “[t]his ... illustrates the wisdom of another provision of the bill, and that is the administrative settlement here”).15 The legislative history does not ■ address what amount of statutory damages, besides the minimum amount, may be sought, and therefore awarded, as “reasonable and entire compensation” under § 1498(b). Absent a clear indication of Congress’s intent to the contrary, the court will not disregard the plain meaning of the statute. See Wyeth, 591 F.3d at 1369; Shoshone Indian Tribe of Wind River Reservation v. United States, 364 F.3d 1339, 1345 (Fed.Cir.2004) (“The language of the statute is the best indication of Congress’s intent.”).16
Defendant’s Cross-Motion for summary judgment that § 1498(b) limits copyright plaintiffs to seeking “reasonable and entire compensation” in the form of either actual damages or minimum statutory damages is GRANTED. However, if plaintiff fails to show actual damages to support his requested recovery, the court may award nominal damages of $750.00. Douglas, 294 U.S. at 209-10, 55 S.Ct. 365. Although a recover of $750.00 per work infringed may appear inadequate to plaintiffs such as Dr. Cohen,17 the proper body to address that issue is Congress and not this court. See Sec’y of Agric. v. Ctr. Roig Ref. Co., 338 U.S. 604, 618-19, 70 S.Ct. 403, 94 L.Ed. 381 (1950).18
*754d. Plaintiffs Election to Receive an Award of Statutory Damages
Plaintiff has represented, “Dr. Cohen now wishes to elect statutory damages.” JSR 1. Because plaintiff has elected to receive minimum statutory damages by his election to receive an award of statutory damages in a suit under § 1498(b), the court may award only $750.00 per work infringed. See supra Part III.E.2.a-d. Accordingly, plaintiff is entitled to $750.00 as minimum statutory damages.
However, the court has not previously addressed what statutory damages are available under 28 U.S.C. § 1498(b) and plaintiff may have thought he was entitled to elect a range of statutory damages. See JSR 1 (citing Cohen III, 100 Fed.Cl. at 484, in which the court declined to address the statutory damages awards issues).19 The court now addresses whether, even if the full range of statutory damages were available to plaintiff, plaintiff has provided support for a greater-than-minimum award of statutory damages.20
3. Even If the Full Range of Statutory Damages Is Available Upon Election, No Evidence of Entitlement to Additional Damages Has Been Provided By Plaintiff
Defendant argues in the alternative that, even if the full range of statutory damages is available to plaintiff upon election, plaintiff is entitled to only $750.00, the minimum of the statutory damages range. Def.’s Cross-Mot. 20-21. Specifically, defendant argues that (i) a number of plaintiff’s damages theories have been limited by the court; (ii) the alleged recovery period is seven days; and (iii) all of Dr. Cohen’s remaining damages theories are time-barred or legally impermissible. Id. at 23-32.
a. Defendant is Correct that the Court’s Prior Rulings Have Narrowed Plaintiff’s Possible Theories of Damages
Defendant contends that the court’s prior rulings have limited the types of damages theories available to support plaintiffs request for statutory damages greater than the minimum. Id. at 23-25. The court has ruled that Dr. Cohen may not seek damages under the continuing wrong theory, for secondary liability, for non-infringed works, or for future lost sales. See supra Part I.E. The court also determined that plaintiffs expert, Dr. Zatkovieh, could not testify regarding actual damages under a value-of-use theory as applied to the public. See supra Part I.E.
Plaintiff does not contest defendant’s briefing on these issues, see Pl.’s Supp. Resp. 1, with which the court agrees, see supra Part I.E.
b. Absent Plaintiffs Establishing that Tolling Occurred, Plaintiff Is Limited to a Seven-Day Recovery Period
In its ruling on defendant’s first motion for summary judgment, the court determined that plaintiff had raised a genuine issue of material fact with regard to whether the three-year statute of limitations set forth in § 1498(b) had been tolled and, accordingly, denied defendant’s summary judgment motion with respect to tolling. Cohen I, 94 Fed.Cl. at 174-75. Defendant now argues that, in light of the court’s prior rulings, *755which have limited the damages theories available to plaintiff, and under the statute of limitations in § 1498(b), defendant is entitled to summary judgment that plaintiff is limited to a seven-day recovery period between March 9, 2004, the date three years prior to the date plaintiff filed his complaint, and March 15, 2004, the date that the government took down the allegedly infringing materials from the FEMA website. See Def.’s Cross-Mot. 25-26. In a footnote, defendant observes, “Although provided the opportunity by the Court to take further factual discovery on this issue, plaintiff declined to do so.” Id. at 25 n. 6.
Defendant is correct that the court’s prior ruling set a cutoff point of March 15, 2004— the date that the allegedly infringing materials were taken off FEMA’s website, Cohen II, 98 Fed.Cl. at 168-71. Insofar as defendant’s Cross-Motion is a request for summary judgment that plaintiff is limited to a seven-day recovery period absent a showing that the statute of limitations has been tolled, defendant’s Cross-Motion is GRANTED.
e. Because No Tolling Occurred, Plaintiff Is Limited to a Seven-Day Recovery Period
In its first motion for summary judgment, defendant argued that “no communications from the Plaintiff satisfied the ‘written claim’ requirements” of the tolling provision of § 1498(b). United States’ Motion for Partial Summ. J., Dkt. No. 87, at 12-13. In his response to that motion, plaintiff argued that tolling should apply for the approximately three-month period between October 17,2005 to January 26, 2006. Pl.’s Resp. Opp’n to United States’ Mot. for Partial Summ. J., Dkt. No. 42, at 20 n. 16.
The court in Cohen I determined that a genuine issue of material fact existed because plaintiffs October 17, 2005 letter to FEMA “appear[ed] to be part of a series of communications between FEMA and plaintiff in the context of which the letters could be understood as a written claim for compensation” that would toll the statute of limitations. Cohen I, 94 Fed.Cl. at 174-75. However, because discovery had closed and no additional evidence had been brought to court’s attention, the court asked the parties to discuss at oral argument “whether any additional evidence has been brought out in discovery that is relevant to the court’s observation that, in context, plaintiffs correspondence [with FEMA] ‘could be understood as a written claim for compensation.’ ” June 5, 2012 Order 1-2 (citing RCFC 56(f)). During oral argument on the cross-motions, defendant stated, “And again, the government submits that there is no need for additional evidence ... [the case] is properly resolvable on summary judgment as to tolling. The only evidence in the record were those letters ... from October 17, 2005 to January 26, 2006,” Oral Argument of June 13, 2012, Argument of Mr. David M. Ruddy at 12:35:08-12:35:32, a proposition with which plaintiffs counsel did not disagree, see Oral Argument of June 13, 2012, Argument of Mr. Jonathan M. Cohen at 12:54:00-1:03:39.
Because no additional evidence has been forthcoming, and there has been no suggestion that a trial would help the court decide this issue, the issue of tolling is ripe for summary judgment on the evidence in the record. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (“The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”); 11 James Wm. Moore et ah, Moore’s Federal Practice § 56.11[3] (3d ed. 2004).
Section 1498(b) provides that copyright plaintiffs suing the United States must file a complaint within three years of any infringement for which the plaintiffs seek to recover. See 28 U.S.C. § 1498(b). The three-year statute of limitations contains the following tolling provision:
except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the ease may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted *756as a part of the three years, unless suit is brought before the last-mentioned date.
Id. (emphasis added). Due to the paucity of cases interpreting § 1498(b), the court finds instructive the tolling provision applicable to patents and the cases interpreting that statute. 35 U.S.C. § 286;21 see also Cohen I, 94 Fed.Cl. at 172.
In Custer v. United States, the Court of Claims held that a letter to which plaintiff had attached materials relating to the same subject matter but which did not identify the patent at issue did not constitute an administrative claim that would toll the statute of limitations in 35 U.S.C. § 286. 224 Ct.Cl. 140, 146-48, 622 F.2d 554, 558-59 (Ct.Cl.1980). The court observed that § 286 required that notice to the government be “sufficiently detailed to afford the Government a realistic opportunity to consider and settle the claim.” Id. at 147, 622 F.2d at 558.
Relying on Custer, this court had found that a plaintiffs administrative claim, even though it had been filed as a tort claim, was sufficient to toll the statute of limitations under § 1498(b) when it “notified the correct agency ... of the underlying facts of a claim pending against the government and stated a sum certain for the damages.” Leonardo v. United States, 55 Fed.Cl. 344, 352-53 (2003).
There is no genuine issue of material fact regarding the contents of the written correspondence between plaintiff and FEMA. On October 17, 2005 counsel for plaintiff wrote a letter addressed to Mr. Jordan Fried, associate general counsel, FEMA. Def.’s App. Part I, Dkt. No. 37-1, at A2. The letter stated in its entirety: “It has been many weeks since you said you would speak to Ms. Zaidel and get back to me about this matter. I never heard from you. Please let me know if I have to sue FEMA to get a response.” Id. In reply, Mr. Fried wrote:
Thank you for your recent letter threatening to bring suit against the Federal Emergency Management Agency. As you recall, when you called me I had no background on the matters of concern to you. As we further discussed, you had been working with Edward Broyles of this office to address your concerns. I advised Mr. Broyles of your call and the particular issues raised by you, and referred the matter back to him.
Id. at A3.
The correspondence from plaintiffs attorney contains references to “this matter” and “my inquiry regarding a clear cut case of copyright infringement,” but does not contain any information about specific instances of copyright infringement. Id. at A2, A4. In addition, while the correspondence contains a threat to sue FEMA, it does not, on its face, contain a demand for compensation. See id.
In the absence of a written claim for compensation as well as specific facts or details that would support that claim, plaintiffs correspondence, in particular, a letter from plaintiffs counsel to FEMA stating, “Please let me know if I have to sue FEMA to get a response,” id. at A2, does not, in the court’s judgment, constitute a “written claim for compensation” sufficient to toll the statute of limitations under 28 U.S.C. § 1498(b), see Custer, 224 Ct.Cl. at 147, 622 F.2d at 558; Motorola, Inc. v. United States, 13 Cl.Ct. 420, 427-28 (1987) (finding that a single paragraph in a letter did not constitute an administrative claim that would toll the statute of limitations under 35 U.S.C. § 286 and stating that that a written claim for compensation “must be calculated to make a Government officer reasonably aware that a claim is being made”); Leonardo, 55 Fed.Cl. at 352-53 (finding that an administrative claim filed with the correct agency and that stated a “sum certain” for damages was sufficient to toll the statute of limitations under § 1498(b)). And insofar as plaintiff or plaintiffs counsel may have requested eompensa*757tion from FEMA in a telephone call,22 that communication does not satisfy the requirement that a claim for compensation from the agency be “written.” See 28 U.S.C. § 1498(b). The court therefore finds as a matter of law that the tolling provisions of § 1498(b) do not apply in this case.
d. Damages for the Value of the Alleged Lost Sale to Krieger Are Time-Barred
Additionally, defendant argues that any damages arising from plaintiffs alleged lost sale to Krieger are time-barred. Def.’s Cross-Mot. 27-28. Defendant argues that the cancellation letter from Krieger to plaintiff is dated June 24, 2003, a date outside of any proposed statute of limitations period, even as extended for a three-month tolling period. Id. Therefore, according to defendant, “the accused infringement and damages relating to the Krieger cancellation must have been committed before June 24, 2003,” and are barred by the statute of limitations in § 1498(b). Id. at 28. Plaintiff does not respond directly to this argument, rather, he states that he has “been denied access to precise proof of earnings losses” and reiterates that he is seeking statutory damages based “primarily on 1) the infringer’s state of mind; 2) the deterrent effect on the infringer and third parties; 3) the infringer’s cooperation in providing evidence concerning the value of the infringing material; and 4) the conduct and attitude of the parties.” PL’s Supp. Resp. 8-9 (citing Hounddog Prods., L.L.C. v. Empire Film Grp., Inc., 826 F.Supp.2d 619, 631 (S.D.N.Y.2011)).
Plaintiff does not contest defendant’s argument that any allegedly infringing activities that would have precipitated Krieger’s cancellation necessarily would have preceded the June 24, 2003 letter from Krieger. See id. at 8-10. Viewing the facts in the light most favorable to plaintiff, the court finds that plaintiff has not been able to point to a genuine issue of material fact that would east doubt on the conclusion that “the accused infringement and damages relating to the Krieger cancellation” must have preceded the cancellation letter and therefore fall outside the statute of limitations. See 28 U.S.C. § 1498(b). Defendant is entitled to judgment as a matter of law. Accordingly, defendant’s Cross-Motion regarding this issue is GRANTED.
e. Plaintiff Has Provided No Credible Evidence of the Fair Market Value of Lost Licensing Fees
Defendant argues that plaintiffs only other damages theory — lost licensing fees “for alleged use of the works by FEMA employees” — fails as a matter of law because “neither plaintiff, nor his purported expert rely on any valid evidence establishing fair market value of the lost licensing fee at issue.” Def.’s Cross-Mot. 28. Defendant asserts— and plaintiff does not contest — that plaintiffs expert does not rely on the value of prior licenses, which could permit the court to arrive at a rational estimate of fair market value. Id. at 30-31.
Although it does not appear that plaintiff has licensed his work previously in a way that would generate licensing fees, see Def.’s Supp. App. SA1-SA84 (providing Dr. Ivan Zatkovieh’s July 10, 2009 expert report), there is no evidence in the record of licenses of similar types by different companies that could form a basis for calculating the probable fair market value of a license to use plaintiffs work, see Def.’s Cross-Mot. 31. Rather, it appears that, based on articles available on websites such as “www. themillions.com” and “http://booksquare. com,” plaintiffs expert, Dr. Ivan Zatkovich, assigned a licensing fee of $5 per work to *758each of six allegedly infringed works. Def.’s Supp. App. SAIL Dr. Zatkovich then assumed that 2,000 users, “the number of FEMA employees at the time,” would each have obtained six of plaintiffs allegedly infringed publications from the FEMA website, which would have generated $60,000 in licensing fees. Id. Dr. Zatkovich then accounted for the applicable royalty rate and calculated that plaintiff would be entitled to 50% of the licensing fees, or $30,000. Id. at SA11-SA12.
The Federal Circuit recently stated that, in the absence of evidence of damages in terms of “ ‘lost sales, lost opportunities to license, or diminution in the value of the copyright,’ ” a court may award actual damages equivalent to the fair market value of the lost licensing fee for defendant’s use. See Gaylord, 678 F.3d at 1343 (quoting On Davis v. The Gap, Inc., 246 F.3d 152, 164, 172 (2d Cir.2001)). The Federal Circuit explained that the determination of fair market value requires the determination of the “‘reasonable license fee on which a willing buyer and a willing seller would have agreed for the use taken by the infringer.’” Id. (quoting On Davis, 246 F.3d at 167). The Federal Circuit further stated that a proper determination involves looking at the evidence offered by both sides to determine “ ‘the fair market value of a license to which the parties would have agreed.’ ” Id. And in On Davis, the United States Court of Appeals for the Second Circuit counseled that the amount of damages awarded as fair market value “may not be based on ‘undue speculation.’ ” On Davis, 246 F.3d at 166 (quoting Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 470 (2d Cir.1985)).
One of the articles relied upon by Dr. Zatkovich lists the mean and median prices of five categories of e-books: “Major Publishers,” “Independent Publishers,” “Genre Books,” “Self-Published,” and “Classics.” Def.’s Supp. App. SA70-SA71 (www. themillions.com article). The article does not identify the underlying data used to compute the figures from which plaintiff’s expert arrived at his $5.00-per-work licensing fee. Id. at SA70-SA72. Nor does the article suggest that the five categories of e-books reviewed may aptly be compared to plaintiffs publications.
Viewing the facts in the light most favorable to plaintiff, the court concludes as a matter of law that plaintiff has not pointed to anything in the record that creates a genuine issue of material fact for trial with respect to his theory of a lost licensing fee for FEMA’s use. Defendant’s Cross-Motion regarding the availability to plaintiff of the lost licensing fee theory is GRANTED.
f. Credible Evidence of Damages Being Absent or Unavailable to Plaintiff, Plaintiffs Recovery Is Limited to $750.00
Defendant has argued that plaintiffs remaining theories of entitlement to statutory damages above $750.00 are unavailable to plaintiff. Def.’s Cross-Mot. 27-28. The court agrees.
If a plaintiff requests only minimum statutory damages, “the record on damages need not be developed at all.” Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1016 (7th Cir.1991), abrogated in part on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). However, even if a plaintiff were permitted to elect a range of statutory damages, in oi’der to receive more than the minimum award, the plaintiff must support that request with sufficient evidence. See id. at 1016-17. Courts have recognized that a plaintiff may provide evidence of damages through “lost sales, lost opportunities to license, or diminution in the value of the copyright.” On Davis, 246 F.3d at 164; see also Gaylord, 678 F.3d at 1343. And in eases when a plaintiff has not been able to show such direct evidence of harm, courts have awarded damages based on “ ‘the fair market value of a license covering the defendant’s use.’” Gaylord, 678 F.3d at 1343 (quoting On Davis, 246 F.3d at 164, 172). The fair market value is “calculated based on a hypothetical, arms-length negotiation between the parties.” Id. (citing Jarvis v. K2 Inc., 486 F.3d 526, 533 (9th Cir.2007)); see also Country Rd. Music, Inc. v. MPS.com, Inc., 279 F.Supp.2d 325, 331 (S.D.N.Y.2003).
*759Plaintiff’s theories of damages are either legally unavailable or fail on summary judgment as a matter of law due to plaintiffs failure to come forward with specific facts that would show a genuine issue of material fact for trial. The court ruled previously that plaintiffs expert was precluded from testifying on the value of the public’s use of Dr. Cohen’s materials due, in part, to plaintiffs willful failure to disclose his expert’s opinion regarding this theory to defendant. Cohen III, 100 Fed.Cl. at 474-75. The court has also ruled that any damages for the alleged lost sale or cancellation of the Krieger contract are barred by the statute of limitations, see swpra Part III.E.3.d, and that plaintiff is limited to a seven-day recovery period, see supra Part III.E.3.C. Admissible, credible evidence of “lost opportunities to license[] or diminution in the value of the copyright,” On Davis, 246 F.3d at 164, in terms of FEMA’s use of plaintiffs materials, is not in the record, see Def.’s Supp. App. SA1-SA84 (providing Dr. Ivan Zatkovieh’s July 10, 2009 expert report), and, as described above, plaintiff has not provided the court with credible evidence of fair market value that would enable this court to conduct the hypothetical negotiation contemplated in Gaylord, see supra Part III.E.3.e.
As a result, plaintiff may recover only minimum statutory damages per work, which totals to $750.00 in this case, where a single work is at issue for statutory damages purposes. See Video Views, Inc., 925 F.2d at 1016-17 (stating that a statutory damages award greater than the minimum is permissible only when “the evidentiary record adequately supports that determination”).
F. Plaintiffs Assertions Regarding the Need for a Trial Are Unavailing
Plaintiff argues, “Surely, Plaintiff is entitled to present live testimony to the finder of fact on the factors relevant to statutory damages, so that the credibility of witnesses ... can be assessed by the fact finder.” Pl.’s Resp. 6. Plaintiff emphasizes that the need to determine willfulness, that is, to assess defendant’s state of mind, usually requires a trial. See Pl.’s Supp. Resp. 15; Oral Argument of June 13, 2012, Argument of Mr. Jonathan M. Cohen at 12:07:05-12:08:02 (arguing that a trial would be needed to determine damages based upon the credibility of witnesses and to determine the number of works at issue, which would involve a comparison of the allegedly infringed works and “testimony along with it as to why things ended up where they did”).
To the extent that plaintiff suggests that willfulness or state of mind is a proper consideration for the court and would mandate a trial, plaintiff is incorrect. See supra Part III.E.l. More generally, while the court is cognizant of “the importance of allowing plaintiff a right to a trial on [his] claim,” a full trial would not be warranted “absenft] ... significant probative evidence tending to support [his] claim.” Renfrew v. United States, 38 Fed.Cl. 435, 449 (1997). Further, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).
IV. Conclusion
For the foregoing reasons, the court GRANTS summary judgment to defendant that only one work is at issue for the purposes of statutory damages and that plaintiff is entitled to recover $750.00 in statutory damages for the government’s infringement. Plaintiffs Motion regarding liability is GRANTED as to the infringement of PAMI and is otherwise DENIED. The foregoing disposes of all outstanding issues in this ease. Accordingly, the Clerk of the Court shall enter judgment for plaintiff in the amount of $750.00.
IT IS SO ORDERED.
. The oral argument held on Wednesday, June 13, 2012 was recorded by the court's Electronic Digital Recording (EDR) system. The times noted in citations to the oral argument refer to the EDR record of the oral argument.
. Even if it were the case that plaintiff had not elected to receive an award of statutory damages, plaintiff has not pointed to credible evidence of actual damages to support any damages award above the statutory minimum of $750.00. See infra Part III.E.2. The court must still consider, therefore, how many works are at issue for the purpose of determining a statutory damages award.
. When citing to these seven documents, the court notes parenthetically which document it is referring to within plaintiff’s Appendix, or, where appropriate, the section of the document to which it refers.
. When citing to these four documents, the court notes parenthetically which document it is referring to within plaintiffs Appendix, or, where appropriate, the section of the document to which it refers.
. The Rules of the United ¡States Court of Federal Claims (RCFC) generally mirror the Federal *740Rules of Civil Procedure (FRCP). See RCFC 56, Rules Committee Note (2008) ("The language of RCFC 56 has been amended to conform to the general restyling of the FRCP.”); Flowers v. United States, 75 Fed.Cl. 615, 624 (2007) ("RCFC 56 is patterned on Rule 56 of the [FRCP] and is similar in language and effect.”); Champagne v. United States, 35 Fed.Cl. 198, 205 n. 5 (1996) ("In general, the rules of this court are closely patterned on the [FRCP]. Therefore, precedent under the [FRCP] is relevant to interpreting the rules of this court, including Rule 56.”), aff'd, 136 F.3d 1300 (Fed.Cir.1998); C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 n. 2 (Fed.Cir.1993) ("The [RCFC] generally follow the [FRCP]. [RCFC] 56(c) is, in pertinent part, identical to [FRCP] 56(c).”). Therefore, this court relies on cases interpreting FRCP 56 as well as those interpreting RCFC 56.
. Defendant suggested at oral argument that a fifth publication, The Manager's Pocket Guide to Effective Mentoring (Manager's Poclcet Guide), Pl.’s Supplemental Appendix (Pl.’s App.), Docket Numbers (Dkt. Nos.) 97-1 to 97-10, at 458-67, also contained the list of six mentor objectives. Oral Argument of June 13, 2012, Argument of Mr. David M. Ruddy at 12:40:23-12:41:20 (describing how the same "core content,” including the list of six mentor objectives, also appears in the Manager's Pocket Guide, or what defendant terms "Work 4”). Because the court has been provided only with excerpted copies of plaintiff's works, including the Manager's Pocket Guide, it is possible that a portion of that publication not provided to the court contains, as defendant suggests, the six mentor objectives.
. Neither party disputes that the fifty-five-statement inventory and the descriptions of the six mentor behaviors that appeared first in plaintiff’s Dissertation are substantially similar to the inventories and descriptions of mentor behaviors contained in plaintiff’s remaining six publications. See Pl.’s Proposed Findings of Uncontro-verted Facts in Supp. of Its Second Mot. for Summ. J. (Plaintiff’s Facts or Pl.’s Facts), Dkt. No. 98, at 7-10 (describing how the "eight pages of Inventory questions” appear in four of plaintiff’s publications and “The Mentor Objectives and Mentor Behaviors” appear in all seven publications); United States’ Resp. to PL Dr. Cohen’s Proposed Findings of Uncontroverted Facts, Dkt. No. 104, at 6 (agreeing that the eight pages of inventory statements appear in four of plaintiff’s publications and, insofar as plaintiff’s reference to the "Mentor Objectives and Mentor Behaviors” includes only his recitation of the description of six mentor behaviors in PAMI described on pages seven through ten of Plaintiff’s Facts, *743the description appears in all seven of plaintiff's publications).
. While it is possible for at least four of plaintiff’s publications to be viewed as not only derivative of plaintiff’s Dissertation but of plaintiff’s other preexisting works as well — a conclusion that neither party has offered — this possibility does not change the court’s determination that all six of plaintiff’s post-Dissertation publications are derivative works under 17 U.S.C. § 101 (2006). See 17 U.S.C. § 101 (2006).
. The court need not address defendant’s attempt to qualify its argument with the assertion that ”[t]he government admits that it copied the PAMI, but it did not copy enough expression of the other asserted works that a lay observer would perceive the FEMA [works] and the [other] allegedly infringed works to be substantially similar.” United States' Opp’n to PI. Dr. Cohen's Mot. for Summ. J. and Cross-Mot. for Summ. J. that Dr. Cohen Is Entitled to No More than Seven Hundred and Fifty Dollars in Damages (Def.’s Cross-Mot.), Dkt. No. 103, at 9. This statement is at odds with the position that defendant takes elsewhere in its briefing that "[t]he government has admitted that it copied the PAMI [ (containing a fifty-five-statement inventory, list of six mentor objectives and description of six mentor behaviors)], which appears in and is admittedly the core of the remaining asserted works.” United States' Reply in Support of Its Cross-Mot. for Summ. J. (Def.'s Reply), Dkt. No. 106, at 4 (emphasis added).
. The court notes that, at times, without specific references to which of plaintiff's works he is drawing a comparison, plaintiff alleges that defendant infringed "the Mentor Objectives” and "the Mentor Behaviors." See, e.g., Pl.’s Mot. for Summ. J. on Liability (Pl.’s Mot.), Dkt. No. 97, at 14.
. Because all of plaintiff’s works are derivative of his thesis, the court’s determination regarding defendant’s infringement of non -PAMI works affects neither the number of works at issue nor the number of statutory damages awards in this case. See supra Part III.A.1-2. The court therefore need not reach the issue of whether plaintiff’s six other publications were infringed.
. The court is not persuaded that the government should be liable for a separate award of statutory damages for infringing the Principles of Adult Mentoring Inventory Trainer’s Guide (Trainer’s Guide), PL's App. 421-34 (Trainer's Guide), by copying a sentence from that publication. Even if copying has occurred, a court must consider whether so much of plaintiff's work has been copied as to render the allegedly infringing work substantially similar to plaintiff’s work. See Ringgold v. Black Entm’t Television, 126 F.3d 70, 74-75 (2d Cir.1997) (describing the "quantitative component” of a court’s substantial similarity analysis). If the copied material is not sufficient in quantity to render the two works substantially similar, an action for copyright will not lie. Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir.1998) ("[W]here the unauthorized use of a copyrighted work is ck minimis, no cause of action will lie for copyright infringement, and determination of a fair use claim is unnecessary.” (citing Ringgold, 126 F.3d at 76)). Although plaintiff argues that defendant copied one sentence from the approximately fifty pages of text contained in plaintiff's Trainer’s Guide, see Pl.'s Mot. 15-16, a proposition that defendant does not appear to contest, see Def.'s Cross-Mot. 7, plaintiff has not shown that he is entitled to summary judgment that the government copied so much of the Trainer's Guide as to render the FEMA document substantially similar to the Trainer’s Guide such that it would constitute an infringing work, see Sandoval, 147 F.3d at 217. Therefore, plaintiff is not entitled to a separate award of statutory damages on this basis.
. The court’s interpretation is consistent with the plain meaning of the word "include,” which has been defined as “[t]o consider as part of or allow into a group or class.” The American Heritage Dictionary of the English Language {American Heritage Dictionary) 888 (5th ed. 2011). But see Wechsberg v. United States, 54 Fed.Cl. 158, 165-66 (2002) (stating that ”[t]he phraseology [of 28 U.S.C. § 1498(b)] strongly suggests that the word ‘including’ in the statute should be read to mean ‘but at least,’ that is, that the damage recovery available to a plaintiff as ‘reasonable and entire compensation' would in no event (presuming infringement is proven) be less than the ‘minimum’ statutory damages”).
. The 1909 Copyright Act, Act of March 4, 1909, 35 Stat. 1075, as amended, governed copyright infringement cases between private parties until it was superseded by the Act of October 19, 1976, Pub.L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§ 101-805, 1001-1205 (2006)).
. The provision for administrative settlement contains no cap on the amount of settlement beyond "available appropriations.” See 28 U.S.C. § 1498(b). One witness did note, however, that settlement may not be an option if an agency did not have the authority to settle. See To Amend Title 28 of the United States Code Relating to Actions for Infringements of Copyrights by the United States: Hearing on H.R. 4059 Before the Subeomm. on Patents, Trademarks, and Copyrights of the S. Comm, on the Judiciary, 86th Cong. 21 (statement of Arthur S. Curtis, Attorney).
. Statutory damages are also mentioned in a letter from the Librarian of Congress to Representative Emanuel Celler. The letter states, "The statutory damage provisions of the copyright law are made applicable to the infringements.” H.R.Rep. No. 86-624, at 7 (1959), 1960 U.S.C.C.A.N. 3444, 3450.
. Of course, Congress, when legislating a waiver of sovereign immunity, may structure the damages provision in the waiver differently than the damages provisions in statutes covering suits between private parties. But see Wechsberg v. United States, 54 Fed.Cl. 158, 165-66 (noting that the provision in § 1498(b) for "reasonable and entire compensation,” if read "as both a floor and a ceiling on damages even in the context of a plaintiff's election [of statutory damages],” would be at odds with the election provision in § 504(c), because "there would then be no logical reason for a plaintiff ever to make such an election”).
.Defendant also argues that a footnote in a leading copyright treatise supports its plain meaning argument that the word "minimum" means $750.00. Def.’s Cross-Mot. 15. With regard to 28 U.S.C. § 1498(b), the footnote states in part, "It would therefore appear that, in actions against the government, the court lacks discretion either to order impoundment and destruction of infringing articles or to increase statutory damages above the minimum amount of $750 or, if applicable, $200 for innocent infringement." 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (Nimmer) § 12.01[E][1] n. 162 (2011) (internal citation omitted) (citing, inter alia, 4 Nimmer § 14.04[B]). The court declines to rely on a sentence that is inconsistent with the court's earlier analysis that, in an action *754for copyright infringement against the United States, willfulness, or the defendant’s state of mind, is not an appropriate consideration for the court in determining "reasonable and entire compensation.” See supra Part III.E.l (citing, inter alia, Leesona Corp. v. United States, 220 Ct.Cl. 234, 599 F.2d 958 (Ct.Cl.1979)).
. In his most recent brief, however, plaintiff affirmed that he wished to go forward with proof of statutory rather than actual damages as reasonable and entire compensation. He stated, "[T]his is now a statutory damages case, largely because Defendant thwarted Plaintiff's access to factual proof sufficient to satisfy this Court's assessment of Plaintiff's expert's theories regarding actual damages.” Pl.’s Supplement to Pl.’s Resp. in Opp’n to the United States' Reply in Support of Its Cross[-M]otion for Summ. J., Dkt. No. 111, at 1.
. Even assuming that plaintiff never elected minimum statutory damages and was pursuing only "reasonable and entire compensation,” plaintiff has not provided, and, as a matter of law could not provide, the court with credible evidence of actual damages and, in the absence of evidence of actual damages, can, at most, recover nominal statutory damages, namely the minimum statutory damages of $750.00. See Douglas v. Cunningham, 294 U.S. 207, 209-10, 55 S.Ct. 365, 79 L.Ed. 862 (1935); infra Part III.E.3.
. 35 U.S.C. § 286 states in relevant part:
In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as part of the period referred to in the preceding paragraph.
35 U.S.C. § 286 (emphasis added).
. Plaintiff's Complaint states, "Plaintiff's counsel contacted FEMA’s counsel more than six months before filing this action, and made a claim for damages of a million dollars to resolve this matter. FEMA eventually responded in writing by saying it had no liability, did not violate the Copyright Law, and had engaged in only 'fair use.' ” Civil Action CompL, Dkt. No. 1, at 7. There is no evidence in the record, however, that any $1 million demand was made in writing. See, e.g., Def.’s App. Part I, Dkt. No. 37-1, at A2 (October 17, 2005 letter from plaintiff's counsel to Mr. Jordan Fried) (stating that "[i]t has been many weeks since you said you would speak to Ms. Zaidel”); id. at A3 (October 25, 2005 letter from Mr. Fried to plaintiff's counsel) (referencing a prior call from plaintiff's counsel); id. at A4 (November 1, 2005 letter from plaintiff's counsel to Mr. Fried) (referencing "my inquiry regarding a clear cut case of copyright infringement”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218300/ | OPINION AND ORDER
GEORGE W. MILLER, Judge.
On May 1, 2012, plaintiff, Distributed Solutions, Inc. (“DSI”), filed a complaint in this Court (docket entry 1), which was subsequently amended on May 22, 2012 (docket entry 24), alleging that the Department of Labor (“DOL”) acted arbitrarily, capriciously, and not in accordance with law, and abused its discretion when it awarded a contract for an Acquisition Management System (“AMS”)1 to defendant-intervenor, Compu-search Software Systems, Inc. (“Compu-search”). Thereafter, the parties filed cross-motions for judgment on the administrative record (docket entry 22, May 22, 2012; docket entry 23, May 22, 2012; docket entry 26, May 23, 2012;2 docket entry 33, June 7, 2012; docket entry 35, June 7, 2012) as well as corresponding responses and replies (docket entry 45, June 18, 2012; docket entry 47, June 25, 2012; docket entry 50, June 25, 2012). On July 10, 2012, following oral argument, see Transcript of July 10, 2012 Hear*6ing, Distributed Solutions, Inc. v. United States, No. 12-274 C (Fed.Cl. July 17, 2012) (hereinafter “Hr’g Tr.”), the Court issued a bench ruling GRANTING defendant’s and defendant-intervenor’s motions for judgment on the administrative record and DENYING plaintiffs motion for judgment on the administrative record. The Court stated that a written opinion would follow.
I. Background
A Procurement History and Original Request for Quotes
On November 23, 2009, DOL issued a Request for Information (“RFI”) to conduct market research for E-Procurement Capabilities. Administrative R. (“AR”) Tab 25. On January 4, 2010, plaintiff responded to the RFI, see AR Tab 26, at 544-78, and simultaneously notified DOL that it believed the RFI was biased because it used language adopted from defendant-intervenor’s website describing its acquisition software and, therefore, DOL’s market research would be flawed, AR Tab 26, at 542-43. DOL replied assuring plaintiff that its market research was appropriate. AR Tab 27, at 581.
In May 2010, DOL issued its Market Research Report. AR Tab 90. The report explained that DOL received nine responses to its RFI and that there were three feasible alternative solutions proposed: (1) cheapest to implement (plaintiff), (2) mainstream (defendant-intervenor), and (3) Oracle Advance Procurement Suite with a Contract System ( [* * *]). AR Tab 90, at 2290. The report noted that plaintiffs solution met 96.6% of DOL’s requirements and would be the least expensive to implement, that defendant-in-tervenor’s so-called mainstream solution met 97.6% of DOL’s requirements, and that [* * *] solution met 98% of DOL’s requirements. Id. When discussing pros and eons, the report explained that plaintiffs solution had “no established ‘community of users’ (federal users group) outside of DOL” and that the PRISM solution proposed by both defendant-intervenor and [* * *] had “a very active community of users group [and was] used by 75 federal organizations across the civilian, defense, intelligence and public sectors.” Id. Of the three solutions, DOL found that the two most viable alternatives were proposed by defendant-intervenor and plaintiff. Id.
On June 25, 2010, DOL finalized its Acquisition Plan and accompanying Independent Government Cost Estimate (“IGCE”). See AR Tab 18; AR Tab 19, at 395. The Acquisition Plan concluded “that a [General Services Administration (‘GSA’) ] competition would be the most advantageous procurement strategy to obtain the best value for the Government.” AR Tab 18, at 390.
On July 16, 2010, DOL issued RFQ No. DOL110RQ21021, seeking a firm-fixed price task order contract issued under the GSA Federal Supply Schedule (“FSS”) Information Technology Schedule 70 for “commercial-off-the-shelf’ (“COTS”) acquisition software. AR Tab 34, at 603-04, 627; see also AR Tab 1. The original Request for Quotes (“RFQ”) called for a performance period of a one-year base period, plus four one-year option periods, AR Tab 34, at 628, which was later amended to include six one-year option periods, AR Tab 93, at 2422 (amendment eight). Quotes were limited to GSA schedule holders with applicable Special Item Numbers (“SINs”). AR Tab 34, at 604. On July 29, 2010, in an answer to a quoter’s question, DOL indicated it was seeking a government-off-the-shelf (“GOTS”) solution. AR Tab 2, at 82; compare AR Tab 1 (amended solicitation with COTS references), with AR Tab 34 (original solicitation containing several GOTS references).
B. Bid Protest History, RFQ Amendments, and Corrective Action
Plaintiff filed a pre-award protest at the Government Accountability Office (“GAO”) on August 13, 2010. AR Tab 24. Plaintiff protested, among other things, DOL’s use of the FSS to procure a GOTS system. AR Tab 24, at 478-80. At the request of the GAO, GSA issued comments on the solicitation stating that it could not determine whether the product DOL sought fell within FSS Schedule 70 and that, in general, GOTS systems cannot be acquired through FSS Schedule 70. AR Tab 41, at 718-20. In response to the protest and GSA’s comments, *7DOL informed GAO that it would not seek a GOTS solution and that it would not issue an award under the solicitation as it was then written. AR Tab 44, at 724. As a result, on October 29, 2012, GAO dismissed plaintiffs protest as academic. AR Tab 46, at 227-28.
On December 9, 2010, DOL issued an amended RFQ, RFQ No. DOL110RQ21021-01, utilizing the same FAR Part 8 procurement strategy. AR Tab 1. DOL removed all references to a GOTS system and instead made clear that DOL was pursuing a COTS system. See id.
The RFQ provided that quotes would be evaluated based on technical approach, past performance, product demonstration, and price. AR Tab 1, at 72. Technical approach was “significantly more important than Past Performance and when combined, these two factors [were] more important than Price.” Id. The price factor became “significantly more important as non-price factors approached] equality.” Id. The live product demonstration factor was equal in importance to past performance. Id.
The RFQ stated that technical proposals were to be rated using an adjectival scale ranging from “unsatisfactory” to “excellent.” AR Tab 1, at 69-70. Within the technical factor, subfaetor (a), functionality requirements, and subfactor (b), technical approach, were of equal importance. AR Tab 1, at 69, 72. The RFQ instructed that the technical quotes “shall address the requirements of the RFQ and the evaluation factors presented in [the] RFQ in a straightforward, complete and concise manner.” AR Tab 1, at 69. Additionally, quoters were required to “demonstrate [their] ability to comply with each requirement and explain how such compliance is achieved.” Id. Quotes that paraphrased or regurgitated requirements were considered “inadequate and [would] be deemed not to comply with the RFQ.” Id.
With regard to subfactor (a) of the technical factor, the RFQ required quoters to “provide comment(s) for Attachments 2-4 on how their proposed product meets that specific functionality.” Id. “No comment, commenting as ‘N/A’, or leaving this field blank [would] count against the overall total score.” Id. The RFQ went on to explain: “It is very important that all quoters make it clear how and when they intend to meet each functional requirement. Solutions that fail to meet any of the High Priority functional requirements will not be considered.”3 Id.
Pursuant to the RFQ, subfaetor (b) of the technical factor contained the following ten components, for which each quote was evaluated: (1) Understanding of the Management and Implementation Requirements (based on data migration and conversion requirements), (2) DOL System Interface Requirements, (3) DOL IT Security System Requirements, (4) Project Management and System Development Life Cycle Methodology (“SDLCM”) Implementation Plan and Approach, (5) Quality of Key Personnel, (6) Training, (7) Operations and Maintenance, (8) Help Desk Support, (9) Quality Control Plan, and (10) Quality Assurance Surveillance Plan.4 Id.
For the past performance factor, quoters were to provide at least three past performance references that were directly related to the RFQ requirements, including “implementation, operations and maintenance, training, and help desk support in a Federal agency in the past five years.” AR Tab 1, at 70. Additionally, the RFQ provided that “DOL [could] check other sources of past performance information.” Id. The past performance information was “combined to assess the risk of the Quoter to successfully perform the requirements of [the] RFQ.” Id.
After all technical and past performance evaluations were complete, “a competitive range consisting of the most highly rated Quotes [could] be further evaluated” based on a live product demonstration. AR Tab 1, at 72. For the live product demonstration, quoters were required to “conduct two separate user sessions with DOL staff following the script provided.” AR Tab 1, at 71. Each of the two sessions, “one for the pro*8curement request functions and one for the solieitation/contracting functions,” was to be attended by up to five DOL staff members who would “evaluate the product’s User Interface, Reports, Wizards/Help Tips, etc.” Id. Quoters were to send “key personnel to conduct these sessions and provide specific guidance on moving the users through [the] procurement software.” Id.
The RFQ further stated that DOL “intend [ed] to evaluate quotes and make award without discussions,” and, therefore, the “initial quote should contain the Quoter’s best terms from a price and technical standpoint.” AR Tab 1, at 72. DOL “reserve[d] the right to conduct discussions, if necessary,” and could “reject any or all quotes if such action is in the public interest, accept other than the lowest quote, and waive informalities and minor irregularities in Quotes received.” Id. The RFQ expressly stated that DOL was “more concerned with obtaining superior technical features than with making an award at the lowest overall price to the Government,” but would “not make an award at a significantly higher overall price to the Government to achieve slightly superior technical features.” Id.
On December 29, 2010, plaintiff wrote DOL objecting to portions of the amended RFQ and requesting that DOL take corrective action. AR Tab 47. Plaintiff asserted, among other things, that the changes to the RFQ were “[u]nduly restricting vendors from providing the most affordable solutions to the DOL.” AR Tab 47, at 729. In response, DOL treated plaintiffs letter as an agency-level protest and stated it would amend the RFQ.5 AR Tab 48, at 732-33; see AR Tab 8 (amendment seven); see also AR Tab 52, at 773-74 (explaining that DOL issued amendment seven in response to plaintiffs December 29, 2010 protest). Plaintiff filed a second pre-award protest at the GAO on January 18, 2011. See AR Tab 51. An agency report issued by DOL stated that amendment seven “rendered moot” several of plaintiffs protest grounds. AR Tab 52, at 774. Plaintiff filed a supplemental protest at the GAO on February 28, 2011, contending, in part, that DOL “failed to adequately plan for this acquisition or conduct it in compliance with the FAR or federal law.” AR Tab 55, at 796. Plaintiff withdrew its protest and supplemental protest on April 26, 2011, AR Tab 67, at 1764, allegedly after receiving confirmation that its quote was deemed to be in the competitive range and would be fully considered for award, Pl.’s Mem. in Supp. of Mot. for J. on Administrative R. (“Pl.’s MJAR”) 7.
After receiving initial proposals, DOL held discussions with each quoter. See AR Tab 22, at 457. On June 3, 2011, quoters submitted final proposal revisions. See AR Tab 10, at 98; AR Tab 21, at 404; see also AR Tab 12 (defendant-intervenor’s revised price proposal); AR Tab 13 (plaintiffs revised price proposal). On August 11, 2011, the contracting officer (“CO”) issued an Award Decision Document selecting defendant-intervenor as the awardee. AR Tab 16. Plaintiff filed a third GAO protest on August 26, 2011, its first post-award protest, alleging that DOL had failed to properly conduct the procurement. AR Tab 68. Plaintiff then filed a supplemental protest alleging that DOL evaluated quoters using unstated evaluation criteria and that DOL failed to properly amend the solicitation after changing its requirements. AR Tab 79. DOL subsequently ac*9knowledged making errors in its evaluation and, on October 26, 2011, DOL notified GAO of its intent to take corrective action by conducting a reevaluation of the quoters’ technical proposals. AR Tab 85, at 2255. As a result, the GAO dismissed plaintiffs third protest as academic. AR Tab 88, at 2263-64.
On March 27, 2012, following the completion of the corrective action, the CO issued a new Award Decision Document, reaffirming the award to defendant-intervenor. AR Tab 22. Plaintiff states that it filed a fourth protest on April 9, 2012 “seeking to remedy the remaining flaws in DOL’s evaluation.” PL’s MJAR 11.
C. Evaluation, Reevaluation, and Present Action
As noted, on June 3, 2011, DOL received final quotations from defendant-intervenor, plaintiff, and [* * *]. See AR Tab 10, at 98; AR Tab 21, at 404; see also AR Tabs 12-13. Plaintiffs total evaluated price was [* * *] and defendant-intervenor’s total evaluated price was $19,877,878.63. See AR Tab 16, at 316. DOL evaluated each offeror’s price in relation to the IGCE, which was [* * *]. Id. The IGCE was computed based on the existing rates DOL experienced with its current vendors and the responses DOL received to the RFI. AR Tab 18, at 389; see AR Tab 19, at 395-96. Defendant-intervenor’s price quote was approximately [* * *] lower than the IGCE, and plaintiffs price quote was approximately [* * *] lower. AR Tab 22, at 467-68.
The technical quotations were evaluated by DOL’s technical evaluation panel (“TEP”) and assigned adjectival ratings. See AR Tab 10. The TEP rated defendant-intervenor as “very good” and plaintiff as “good” overall for the technical factor. AR Tab 10, at 145.
For the past performance factor, each quoter identified at least three references for similar work completed within the past five years. AR Tab 11, at 146. Each reference received and answered a questionnaire via email. Id. Additionally, a DOL reference with “firsthand knowledge of the procurement and implementation of DOL’s E-Procurement System (EPS)” received a questionnaire. Id. DOL also searched through the Contractor Performance Assessment Reporting System for additional past performance information. Id. Overall, DOL considered fourteen questionnaires: four for plaintiff, five for defendant-intervenor, and five for [* * *]. Id. Defendant-intervenor received a “very good” past performance rating, and plaintiff received a “satisfactory” rating. AR Tab 11, at 146-47.
After the competitive range was established, each remaining offeror conducted a live product demonstration of its proposed system. AR Tab 1, at 71-72; see AR Tab 9 (summary of product demonstrations). The demonstrations were attended by contracting personnel from several DOL agencies who “tested the systems for look, feel, logic, flow and robustness of reporting function.” AR Tab 81, at 2163; see AR Tab 1, at 71; AR Tab 16, at 316; see also AR Tab 9, at 95-97 (listing personnel who attended the product demonstrations). A summary of the product demonstrations recorded that attendees found defendant-intervenor’s system easy to use and plaintiffs system “very difficult to understand.” AR Tab 9, at 93. Additionally, some users questioned whether plaintiffs system was Section 508 compliant.6 AR Tab 9, at 93-94. Ultimately, defendanb-interve-nor received a rating of “very good” and plaintiff received a rating of “good” for the live product demonstration factor. AR Tab 16, at 317.
Following DOL’s decision to take corrective action on October 26, 2011, the TEP reevaluated the offerors’ technical proposals under each of the factors set forth in the RFQ. AR Tab 21, at 404. The TEP was able to “reach[ ] a new consensus of ratings” for *10the quotes that it documented in its January 26, 2011 report. AR Tab 21, at 405. After the reevaluation of subfactor (a) of the technical factor, defendant-intervenor and plaintiff each received the same ratings as the first evaluation for functional requirements, technical requirements, and integration requirements. Compare AR Tab 10, at 144, with AR Tab 21, at 408; see also AR Tab 21, at 405. The overall ratings for sub-factor (a) changed from a “very good/minimal risk” rating to an “excellent/very good” rating for defendant-intervenor, and from a “good/moderate risk” rating to a “good/marginal” rating for plaintiff. Compare AR Tab 10, at 144, with AR Tab 21, at 408. The TEP explained that defendant-intervenor had “a very good to excellent probability of satisfying the requirements with minimal risk to DOL” and that it did not have “a high degree of confidence that [plaintiffs] product ‘really does what [plaintiff] says it does.’ ” AR Tab 21, at 408.
Under sub-factor (b) of the original evaluation, defendant-intervenor received three “excellent,” six “very good,” and two “good” ratings for an overall rating of “very good/minimal risk.” AR Tab 10, at 144. In the i’eevaluation, defendant-intervenor received six “excellent,” three “very good,” and one “good” rating with an overall rating of “excellent/very good.” AR Tab 21, at 453-54. Plaintiff received five “very good” and six “good” ratings, with an overall rating of “good/moderate risk” in the original evaluation. AR Tab 10, at 144. In the reevaluation, plaintiff received seven “very good” and three “good” ratings, with an overall rating of “very good/good.” AR Tab 21, at 453-54. The subfaetor (b) reevaluation removed two improperly included evaluation categories, “Change Management” and “Business Process Re-Engineering,” and added an additional category, “Quality Assurance Surveillance Plan,” pursuant to the solicitation and in accordance with the agency’s corrective action. Compare AR Tab 10, at 101-02, with AR Tab 21, at 453-54; see AR Tab 85, at 2255.
In her second award decision, the CO reviewed the TEP ratings and assigned her own overall technical ratings to each offeror, giving defendant-intervenor an overall technical rating of “excellent” and plaintiff an overall technical rating of “very good.” AR Tab 22, at 468-70. The CO then engaged in a tradeoff analysis, evaluating price and non-price factors in relation to each other. AR Tab 22, at 472-74. The CO determined that defendant-intervenor “offer[ed] the significantly better quote/proposal from a non-price standpoint.” AR Tab 22, at 473. The CO then concluded that defendant-intervenor, even at a higher price than plaintiff, presented the best overall value to the Government. AR Tab 22, at 474.
On May 22, 2012, plaintiff filed an amended complaint alleging DOL “conducted an arbitrary and capricious procurement process, resulting in flawed evaluations of both plaintiffs and the awardee’s quotes.” Am. Compl. 1. Plaintiff alleges that errors in its initial evaluation went uncorrected and that there were errors in the corrective action. See id. Specifically, plaintiff alleges that (1) DOL improperly reevaluated plaintiffs and defendant-intervenor’s technical approaches; (2) DOL failed to engage in meaningful discussions with plaintiff; (3) DOL misevaluated plaintiffs past performance; (4) DOL mise-valuated plaintiffs product demonstration; (5) DOL misevaluated defendant-intervenor’s technical approach; (6) DOL failed to engage in a proper price-reasonableness evaluation; (7) the IGCE was unreasonably high; (8) DOL’s misevaluations of plaintiffs and defendant-intervenor’s quotes caused a flawed cosVtechnical tradeoff analysis and resulted in a flawed best-value determination; (9) DOL acted arbitrarily and capriciously when it decided to pay more than a [* * *] price premium for a one-level rating improvement; (10) DOL breached the implied contract to fully and fairly consider plaintiffs proposal; (11) DOL failed to treat plaintiff impartially, fairly, and equitably; (12) DOL breached the implied duty of good faith and fair dealing; and (13) DOL failed to implement its proposed corrective action. See Am. Compl. 35-59.
On May 1, 2012, the date the original complaint was filed, the Court held an initial status conference (docket entry 13), during which the Court granted defendant-interve-*11nor’s motion to intervene. See May 2, 2012 Order 1 (docket entry 14). The administrative record was filed on May 4, 2012 (docket entry 18), and amended on May 18, 2012 (docket entry 19). As noted, on May 22, 2012, plaintiff filed its motion for judgment on the administrative record. Defendant and defendant-intervenor filed then’ cross-motions for judgment on the administrative record and responses in opposition to plaintiffs motion for judgment on the administrative record on June 7, 2012. Plaintiff filed its reply to defendant’s and defendant-interve-nor’s responses to plaintiffs motion for judgment on the administrative record on June 18, 2012. On June 25, 2012, defendant and defendant-intervenor filed their replies to plaintiffs response to their cross-motions for judgment on the administrative record.
II. Discussion
A. Jurisdiction
This Court has jurisdiction over post-award protests, such as this one, pursuant to the Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, 110 Stat. 3870. Specifically, 28 U.S.C. § 1491(b)(1) provides this court with the authority “to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1).
Notably, the Federal Acquisition Streamlining Act’s (“FASA”) limitation on the protest of task or delivery orders in the Court of Federal Claims, 41 U.S.C. § 4106(f), does not extend to task orders issued pursuant to the GSA FSS. Furniture by Thurston v. United States, 103 Fed.Cl. 505, 511 n. 8 (2012) (“[T]his statutory constraint [of FASA] does not apply to the court’s jurisdiction over protests of task orders under GSA FSS contracts_”); Data Mgmt. Servs. Joint Venture v. United States, 78 Fed.Cl. 366, 371 (2007) (“The court’s protest jurisdiction extends to protests of task or delivery orders placed against a GSA schedule contract.”); Idea Int’l, Inc. v. United States, 74 Fed.Cl. 129, 135-37 (2006) (discussing FASA and its relation to orders placed against the GSA FSS and concluding that “FASA’s prohibition on bid protests does not cover GSA [FSS] orders”); see also Data Mgmt. Servs. Joint Venture, 78 Fed.Cl. at 371 n. 4 (discussing the court’s precedent on the applicability of FASA to GSA FSS task orders). Accordingly, this Court possesses subject matter jurisdiction over plaintiffs bid protest action.
B. Legal Standard
When deciding a case based on cross-motions for judgment of the administrative record pursuant to Rule 52.1 of the Rules of the Court of Federal Claims, the court “examines whether the administrative body, given all the disputed and undisputed facts appearing in the record, acted in a manner that complied with the legal standards governing the decision under review.” MORI Assocs., Inc. v. United States, 102 Fed.Cl. 503, 518 (2011). The court’s “fflactual findings are based on the evidence in the record, ‘as if [the Court] were conducting a trial on the record.’ ” Id. (quoting Bannum Inc. v. United States, 404 F.3d 1346, 1357 (Fed.Cir.2005)) (second alteration in original); accord Harper v. United States, 104 Fed.Cl. 287, 294 (2012).
The Court of Federal Claims reviews an agency’s procurement decisions pursuant to the Administrative Procedure Act. Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). “[A] reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id. at 1350-51 (quoting Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000)). “Under this standard, a procurement decision may be set aside if it lacked a rational basis or if the agency’s decision-making involved a violation of regulation or procedure.” DynCorp Int’l LLC v. United States, 76 Fed.Cl. 528, 536 (2007) (citing Impresa Construzioni Geom. Domenico Garufi v. *12United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)).
To determine if an agency’s decision lacked a rational basis, the court must analyze “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.” MORI Assocs., Inc., 102 Fed.Cl. at 519 (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333) (internal quotation marks omitted). This analysis involves assessing whether the agency “ ‘failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,’ or made a decision that was ‘so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Id. (quoting Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed.Cir.2009)). With regard to a showing that an agency’s action violated regulation or procedure, the “showing must be of a ‘clear and prejudicial violation.’” Id. (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333).
The agency has broad discretion in conducting a procurement. See Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 958-59 (Fed.Cir.1993) (“Effective contracting demands broad discretion. Accordingly, agencies ‘are entrusted with a good deal of discretion in determining which bid is the most advantageous to the Government.’ ” (citations omitted) (quoting Tidewater Mgmt. Servs., Inc. v. United States, 573 F.2d 65, 73 (Ct.Cl.1978)) (citing Burroughs Corp. v. United States, 617 F.2d 590, 598 (Ct.Cl.1980))); DynCorp Int’l LLC, 76 Fed.Cl. at 537 (“‘[B]est value’ contract awards give a contracting officer more discretion than awards based on price alone.” (citing Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed.Cir.2004))). Specifically, in the context of a rational basis analysis, “courts have recognized that contracting officers are ‘entitled to exercise discretion upon a broad range of issues confronting them’ in the procurement process.” Impresa Con-struzioni Geom. Domenico Garufi, 238 F.3d at 1332 (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.1994)). The court, thus, must afford agency decisions deference, and plaintiff bears the burden to show by a preponderance of the evidence that the award decision lacked a rational basis or violated law. MORI Assocs., Inc., 102 Fed.Cl. at 519.
C. Waiver Does Not Apply to Plaintiffs Claims Except to the Extent that Plaintiff Challenges DOL’s Decision Not to Conduct a Small-Business Set Aside
Defendant-intervenor contends that plaintiff has waived certain arguments pursuant to Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed.Cir.2007), because plaintiff failed to submit timely challenges to DOL’s actions that occurred before October 26, 2011, the date DOL decided to take corrective action and reevaluate the proposals. Specifically, defendant-intervenor states that plaintiff failed to timely raise its contentions that “(1) the original [RFI] was copied verbatim from Compusearch’s website; (2) DOL switched the procurement to a GSA schedule solicitation in order to circumvent small business set aside requirements; and (3) DOL undertook procurement revisions and corrective actions in order to steer the award to Compusearch.” Def.-Intervenor’s Cross-Mot. for J. on Administrative R. 8 (citations omitted).
According to Blue & Gold Fleet, “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims.” 492 F.3d at 1313.
With regard to the first and third arguments defendant-intervenor contends are waived, the Court finds that these are not properly objections to a patent error in the terms of the solicitation at issue. In rejecting plaintiffs claims below, the Court rejects these arguments as well. See infra Parts II.I, II.K.
The second argument, to the extent that it is a challenge to the agency’s decision *13not to conduct a small-business set aside, is not properly before this court. This is an objection to the terms of the solicitation that could have been made pre-award. Although alluded to in its protests to GAO, plaintiffs small-business set-aside argument was never identified as a specific challenge to the procurement before GAO. See AR Tab 24; AR Tab 51. Accordingly, to the extent that plaintiff is now seeking to rely upon this argument,7 it has been waived. See Benchmade Knife Co. v. United States, 79 Fed.Cl. 731, 737-38 (2007) (finding the plaintiffs small-business set-aside argument waived when it did not raise it prior to the close of the solicitation period).
D. DOL’s Reevaluation of the Proposals Was Proper, and Its Corrective Action Was Reasonable
Plaintiff argues that DOL’s reevaluation of the proposals was improper. Specifically, plaintiff alleges that the new ratings resulting from DOL’s reevaluation were arbitrary and capricious because the same TEP evaluated the same proposal information and issued different ratings, resulting in a larger spread between the technical ratings of plaintiff and defendant-intervenor. Plaintiff also argues that the corrective action as executed was arbitrary and capricious because it did not comport with DOL’s stated plan for its corrective action.
To support its argument that the reevaluation was improper because it involved the same TEP and the same proposals, plaintiff points to Wackenhut Services, Inc. v. United States, in which the Court of Federal Claims found that the Source Evaluation Board (“SEB”) violated the Administrative Procedure Act “by failing to create a record to explain and justify the ... increase in point score ... between the SEB’s Preliminary and Final Findings as to [an offeror’s] Technical Approach Subfactor.” 85 Fed.Cl. 273, 297 (2008). Because of this failure to create a record, the court could not determine whether the SEB acted arbitrarily or capriciously in its evaluation of the offerors’ revised final proposals, which were submitted after the agency conducted discussions. Id.
Here, unlike in Wackenhut, the TEP provided adequate documentation to support its analysis and the adjectival ratings it assigned to the quotes. See AR Tab 21; Def.-Intervenor’s Reply Br. in Supp. of Def.-In-tervenor’s Mot. for J. on Administrative R. (“Def.-Intervenor’s Reply”) app. A (comparing excerpts from the TEP’s initial evaluation report and its reevaluation report); compare AR Tab 10, with AR Tab 21. Additionally, as defendant highlights, in Wackenhut, the solicitation provided for a negotiated procurement with two rounds of evaluation — the first round based on initial proposals and the second, post-discussion round based on final proposals. Def.’s Reply to Pl.’s Resp. to Cross-Mots, for J. upon Administrative R. (“Def.’s Reply”) 5; see Wackenhut, 85 Fed. Cl. at 280-81. Here, one round of evaluations was contemplated by the solicitation after the competitive range was established, AR Tab 1, at 72, and the second round of evaluations — intended to replace the first round — was conducted as a result of DOL’s corrective action, see AR Tab 85, at 2255. Accordingly, explanation of the increase in quoter ratings was not necessitated by the solicitation. Regardless, the detailed analysis the TEP provided in the reevaluation report adequately supported the new adjectival ratings and justified the changes made to the evaluations.8 See AR Tab 21.
Nothing suggests that it was improper for DOL to employ the same TEP to reevaluate the same quotes. Despite plaintiffs contentions, the record does not reveal that the members of the TEP were biased or otherwise negatively motivated, and plaintiff posits no persuasive reason why employing the *14same TEP was unreasonable. Accordingly, the Court finds meritless plaintiffs argument that the ratings were arbitrary and capricious because DOL employed the same TEP on reevaluation. See Comprehensive Health Servs., Inc. v. United States, 70 Fed.Cl. 700, 710, 726-29 (2006) (finding that a reevaluation was not arbitrary or capricious when it was conducted by the same evaluation board with one new member, involved the same proposals as the first evaluation, and resulted in changed adjectival ratings for the offerors, including at least one downgrade); YRT Servs. Corp. v. United States, 28 Fed.Cl. 366, 390-91 (1993) (finding the agency’s actions reasonable and that the agency did not merge two distinct evaluation phases when it used “largely the same individuals” from the first phase of evaluations to conduct the second phase of evaluations); see also UD Security Solutions, Inc., B-400351.2 et al., 2008 WL 5505408, at *1-5 (Comp.Gen. Dec. 8, 2008) (denying a protest from an offeror who was originally awarded the contract and, after corrective action was taken involving reevaluation of quotes by the same evaluator, was not found to present the best value to the Government); U.S. Def. Sys., Inc., B-245563 et al., 1992 WL 328737, at *1-2 (Comp.Gen. Nov. 3, 1992) (involving a reevaluation of proposals by the same two-member TEP that conducted the initial evaluation of proposals).
Plaintiff also argues that DOL’s execution of the corrective action was arbitrary and capricious because it did not comport with DOL’s stated plan for its corrective action. Pl.’s MJAR 25-27. After plaintiff alleged that DOL erred in its initial evaluation by, among other things, adding two evaluation items not specified in the solicitation under subfactor (b) of the technical factor and by failing to evaluate an evaluation item, DOL decided to take corrective action. AR Tab 85, at 2255. The proposed corrective action consisted of a reevaluation of the quotes “without reference to the Technical Subfactor (b) factors of ‘Change Management’ and ‘Business Process Re-Engineering’ and with reference to the factor of ‘Quality Assurance Surveillance Plan.’ ” Id.
The corrective action DOL outlined was appropriately conducted. In the second TEP report, the TEP properly listed and evaluated the ten components that the solicitation provided would be analyzed under subfactor (b) of the technical factor, notably excluding “Change Management and Business Process Re-Engineering” and including “Quality Assurance Surveillance Plan” as the solicitation required. See AR Tab 21, at 409. However, “Change Management” and “Business Process Re-Engineering” were stated considerations in the solicitation within the “Project Management and SDLCM Implementation Plan and Approach” component of subfactor (b). AR Tab 1, at 47-48. Contrary to plaintiffs contentions, the solicitation provided that DOL was to evaluate these considerations as part of an announced factor. See Fulcra Worldwide, LLC v. United States, 97 Fed.Cl. 523, 536 (2011) (“A solicitation must state all significant factors and subfactors that the agency will consider in evaluating proposals. Evaluators must base their decisions on these factors and subfaetors.” (citations omitted)). The TEP thus reevaluated the proposals appropriately when it looked at “Change Management” and “Business Process Re-Engineering” in its review of “Project Management and SDLCM Implementation Plan and Approach.”
Plaintiff also contends that DOL acted arbitrarily and capriciously when it “simply moved the same verbiage from its original TEP report regarding ‘Change Management’ and ‘Business Process Re-Engineering’ into another evaluation factor — ‘Project Management’ ” Pl.’s MJAR 12, 26. The Court finds that it was not unreasonable for the TEP, when writing its reevaluation report, to reuse language from its initial evaluation when its initial evaluation of those components did not change upon reevaluation.
Accordingly, the corrective action DOL implemented was rational and supported by the record. Moreover, as discussed above, DOL’s execution of its corrective action was appropriate, reasonable, and within its discretion.
E. DOL’s Discussions with Plaintiff Were Proper and in Accordance with FAR
Plaintiff contends that DOL failed to engage in meaningful discussions regarding *15the weaknesses in its proposals and its past performance evaluations. First, it is not disputed that this solicitation was issued under the GSA FSS for Schedule 70, Information Technology. Accordingly, FAR 8.4 provided the requisite guidelines and procedures for the procurement. FAR 8.403(a) (“Procedures in this subpart apply to — (1) Individual orders for supplies or services placed against [FSS] contracts; and (2) [blanket purchase agreements] established against [FSS] Contracts.”).
Despite the applicability of FAR 8.4, plaintiff contends that DOL failed to conduct meaningful discussions pursuant to FAR 15.306 because, when conducting discussions, “DOL never mentioned any deficiencies in [plaintiffs] Technical Approach, despite its later evaluation of deficiencies in [plaintiffs] Sub-factor (a) and Sub-factor (b) submissions.” PL’s MJAR 33. Additionally, plaintiff contends DOL failed to comply with FAR 15.306 because it did not provide plaintiff with an opportunity to respond to its past performance evaluations. Id. at 34.
Plaintiffs contentions lack merit. As an initial matter, FAR 8.404 expressly provides that FAR Part 15 “do[es] not apply to ... orders placed against [FSS] contracts.” FAR 8.404(a). “FAR Part 15, therefore, is explicitly made inapplicable to FSS contracts.” Sys. Plus Inc. v. United States, 68 Fed.Cl. 206, 210 (2005). Plaintiff contends that because DOL engaged in discussions, it was required to follow FAR Part 15 procedures. This misconstrues case law. This court “consistently has held that procurements conducted under Subpart 8.4 are different from those conducted under Part 15, even if ‘some procedures also present in Part 15 are utilized.’ ” Allied Tech. Grp. v. United States, 94 Fed.Cl. 16, 44 (2010) (quoting Sys. Plus Inc., 68 Fed.Cl. at 211), aff'd, 649 F.3d 1320 (Fed.Cir.2011). Therefore, that DOL conducted discussions did not mean it had to comply with the strict procedures of FAR Part 15. Id. (“Where a solicitation governed by FAR Subpart 8.4 uses procedures found in FAR Part 15, the procurement official need not comply with ‘the more formal and rigorous procedures for negotiated procurements.’ ” (quoting Holloway & Co. v. United States, 87 Fed.Cl. 381, 393 (2009))); Sys. Plus Inc., 68 Fed.Cl. at 210 (“[W]hile the agency can elect to use procedures from [FAR Part 15], they are not presumptively applicable.”); LabaG-Anderson Inc. v. United States, 50 Fed.Cl. 99, 104 (2001) (“[T]his Court has held that FSS acquisitions are not transformed into negotiated procurements simply because an agency chooses to utilize in its evaluation process more formal elements typically used in a negotiated procurement....”).
Despite this, relevant portions of FAR Part 15 may be used in analyzing a procurement when those specific portions of FAR Part 15 were “implicated by the particular procedure that the solicitations stated would be used.” Sys. Plus Inc., 68 Fed.Cl. at 211. Case law suggests that relatively clear intentions that FAR Part 15 procedures will be used is necessary to trigger their application to a procurement. See id.; see, e.g., ACS Gov’t Sohitions Grp., Inc., B-282098 et al., 1999 WL 397426, at *10 (Comp.Gen. June 2, 1999) (analyzing discussions conducted in a FAR Part 8 procurement using FAR Part 15 guidance when the solicitation expressly provided that discussions were part of the procurement process). Here, the solicitation specifically provided that the agency “intended] to evaluate quotes and make award without discussions,” although it reserved the agency’s “right to conduct discussions, if necessary.” AR Tab 1, at 72 (emphasis added). Accordingly, the solicitation not only did not contemplate discussions, but also did not condone a FAR Part 15 procedure governing discussions. And, under FAR Part 8, DOL was under no obligation to hold discussions. See Career Training Concepts, Inc., B-311429 et al., 2008 WL 6049972, at *4 (Comp.Gen. June 27, 2008) (“[W]here a procurement is an FSS purchase conducted pursuant to FAR part 8.4, ... an ageney properly may make award without conducting discussions, even if the solicitation does not expressly advise vendors of that possibility.” (citing Avalon Integrated Servs. Corp., B-290185, 2002 WL 1577705, at *3 (Comp.Gen. July 1, 2002))). Accordingly, plaintiffs con*16tention that DOL violated FAR by failing to provide meaningful discussions fails.9
F. DOL Did Not Act Arbitrarily or Capriciously When It Evaluated Plaintiff’s Quote With Respect to the Technical Subfactors
1. DOL Properly Evaluated Plaintiffs Quote for Subfactor (A)
Plaintiff contends that DOL “improperly downgraded” plaintiff’s rating for subfactor (a)of the technical factor, which assessed functionality requirements, because plaintiff “followed] the RFQ.” PL’s MJAR 28-29. In the solicitation, DOL explained that a quote “shall be evaluated as to what extent it meets each functional requirement” of certain attachments to the RFQ. AR Tab 1, at 69. The solicitation explained: “The quoter must provide comment(s) for Attachments 2-4 on how [its] proposed product meets that specific functionality. No comment, commenting as ‘N/A’, or leaving this field blank WILL count against the overall total score.” Id. (emphasis added). The penultimate sentence in the explanatory paragraph stated, “It is very important that all quoters make it clear how and when they intend to meet each functional requirement.” Id.
Amendment six to the solicitation deleted the entire paragraph that explained subfactor (a) and replaced it with a revised paragraph. AR Tab 7, at 90. The revised paragraph stated, in relevant part: “The quoter shall provide eomment(s) for Attachments 2-4 on how [its] proposed product meets that specific functionality. No comment, commenting as ‘N/A’, or leaving this field blank WILL count against the overall total score.” Id. The final sentence read:
[I]t is very important that all quoters make it clear as to how and when they intend to meet each functional requirement by stating one of the following:
(a) included in the core software package
(b) included through customization at no additional cost to the government
(c) included through customization at additional cost to the government
(d) included by another means (identify means)
(e) not included/offered.
Id. When responding, plaintiff used only the template responses and did not provide any comments or other detail as to how its quote complied with subfactor (a)’s functionality requirements. See AR Tab 21, at 406. Despite not providing comments, plaintiff was rated “good/marginal” for this subfaetor. Id.
Plaintiff now claims that it was “downgraded” for complying with the terms of the solicitation, namely for replying to the functionality subfactor with the template responses. The Court is not persuaded. First, plaintiff was not deemed unsatisfactory and, despite not providing comments, was still assigned a relatively favorable rating— “good/marginal.” Second, amendment six explicitly stated that quoters “shall provide eomment(s) ... on how their proposed product meets that specific functionality.” AR Tab 7, at 90 (emphasis added). Third, the amendment does not state that the template responses are themselves “comments” nor that they can be provided in lieu of comments. The TEP evaluation report explains that the TEP “looked to the template responses ... to determine whether offerors met the requirements, and [it] looked to the comments to support the vendors’ template responses.” AR Tab 21, at 406. Notably, the TEP did not evaluate the comments themselves, which is in accordance with DOL’s answer to a question posed by a quoter. AR Tab 2, at 77. The Court finds the TEP’s evaluative method consistent with the *17explanation contained in the solicitation and, therefore, not arbitrary or capricious.
In addition, the TEP’s evaluation report expressed concern with plaintiffs template responses to some of the functionality requirements because the specific response did not always properly correspond to the functionality requirement being assessed. For example, the TEP explained that plaintiff responded “[i]neluded in the core software package” for an item that was not a core functionality requirement. AR Tab 21, at 406. The TEP, therefore, could not discern how plaintiff would meet this requirement. See id. This lack of clarity, presumably resulting from a lack of detailed comments, reasonably caused the TEP to lack confidence in plaintiffs proposal, thus resulting in plaintiffs “good/marginal” rating. It therefore appears that it was plaintiffs inadequate responses to the functionality requirements, not its failui’e to provide comments, that resulted in its rating.
Accordingly, the agency’s evaluation of plaintiffs response to subfactor (a) was reasonable and within its discretion. See Benchmade Knife Co., 79 Fed.Cl. at 735 (“Agency technical evaluations ... should be afforded a greater deference by the reviewing court.”).
2. DOL Did Not Act Arbitrarily or Capriciously When It Evaluated Plaintiffs Quote for Subfactor (B)
a. DOL’s Evaluation of Plaintiffs Work Breakdown Structure Was Not Arbitrary or Capricious
Plaintiff also takes issue with the weakness it was assigned as a result of its Work Breakdown Structure (“WBS”), which was assessed within the “Project Management and SDLCM Implementation Plan and Approach” component of subfactor (b) of the technical factor. According to the solicitation: “The WBS is the project roadmap; as such, it shall be used throughout the life cycle of the project. The WBS shall document the activities, milestones, resource and duration anticipated to complete each phase of the specific request/requirement.” AR Tab 1, at 46. Notably, DOL expected that quoters would provide a proposed WBS with their quotes. See AR Tab 1, at 68.
Plaintiff rests its challenge on question and answer number 56. See Pl.’s MJAR 30. Question 66 posited: “Does the DOL require Quoters to provide an updated WBS with the quotation? If so, can the basic WBS provided be modified at all levels or are we supposed to only add subtasks to the high-level tasks?” AR Tab 2, at 79. DOL’s answer stated, “DOL does not require the offerors to provide an updated WBS with their quotes.” Id.
Upon evaluation, the TEP determined that “DSI did not provide a comprehensive WBS.” AR Tab 21, at 433. The TEP explained that there were gaps in plaintiffs WBS and noted that the “lack of detailed WBS means there is poor up-front definition and planning, which will cause serious problems for DOL in many areas later in the project lifecycle.” Id. The TEP noted that “there is a moderate risk to DOL that DSI will NOT satisfy this requirement.” Id. Accordingly, this was determined to be a weakness of plaintiffs within the “Project Management” component of subfactor (b) of the technical factor. Id.
The term “updated” in the answer to question 56 seems to refer to the WBS model contained in attachment 5 of the solicitation, see AR Tab 98, at 2545-46, which was also referenced by the initial July 2010 solicitation, AR Tab 34, at 652. Defendant-interve-nor contends that “there would be no purpose to having offerors supply a WBS with their proposal if they could simply copy the identical WBS from the solicitation.” Def.-Intervenor’s Reply 7. The Court agrees. Moreover, when compared to the solicitation’s WBS, AR Tab 98, at 2545-46, plaintiff did, in fact, supply additional detail to its WBS submitted with its quote, indicating that it understood that mirroring the solicitation’s WBS was not contemplated by the agency. See AR Tab 70, 2053-55. Given this, and after review of the record, the Court determines that DOL did not act arbitrarily or capriciously when it assessed a weakness for plaintiff’s WBS.
Even if the Court were to find that it was improper for DOL to assess plaintiff a weak*18ness for its WBS, this was only one of six non-material weaknesses plaintiff received for this component, which ultimately received a “good technical rating and moderate risk rating.”10 AR Tab 21, at 431. Had the TEP not assessed plaintiffs WBS as a weakness, it is unlikely that either the component’s rating or the overall rating for subfactor (b) would have increased.11 Taking WBS out of the evaluation scheme, plaintiff would have received three strengths and five weaknesses; if WBS were included as a strength, plaintiff would have received four strengths and five weaknesses. It is unlikely that this would have altered the “good/moderate” rating that plaintiff received for this component. In fact, the “DOL System Interface Requirements” component, which had two strengths and two non-material weaknesses, also received “a Good technical rating and Moderate risk rating.” AR Tab 21, at 428. Therefore, even if plaintiffs WBS were not considered, or were considered a strength, the ratio of strengths to weaknesses likely would not alter the overall adjectival rating,
b. DOL Properly Concluded that Plaintiff Did Not Adequately Address Risk in Subfactor (B)
Plaintiff also takes issue with another weakness it was assessed under the “Project Management” component of subfactor (b). Plaintiff argues that the TEP’s assessment that plaintiff “did not address ‘how [it] will manage, track and communicate project risks,’ ” Pl.’s MJAR 30 (quoting AR Tab 21, at 433), was improper because “[r]isk management is not one of the evaluation components listed in the RFQ,” id. at 31. Plaintiff explains that, in the Project Management description, “the only mention of risk is ‘risk monitoring.’ ” Id. (quoting AR Tab 1, at 43). It notes that the concluding paragraph of the pertinent section of the solicitation states that the specific phase of the contract at issue “includes assisting the [Project Management Office (“PMO”) ] to setup the project infrastructure and reporting required to manage the project — charter, change management plan, templates, communications and ris/c management plans.” Id. (quoting AR Tab 1, at 47). Plaintiff argues that “there was no requirement to provide a risk management plan and, in fact, that responsibility, post-contract award[,] was only to assist the PMO with such a plan.” Id.
The Court does not find plaintiffs argument persuasive. Although the solicitation did not provide for a specific “risk management” evaluative factor, it is not the case, as plaintiff implies, that plaintiff was faulted for not providing a risk management plan. Instead, in its review of plaintiffs project management proposal, the TEP explained: “DSI did not address how [it] will manage, track and communicate project risks (as all projects have risks). This demonstrates that the vendor does not understand how to manage risks for a project of this size and complexity.” AR Tab 21, at 433. The TEP did not fault plaintiff for not providing a specific risk management proposal, but rather, under the Project Management component of sub-factor (b), the TEP observed that plaintiff did not demonstrate how it would deal with project risks. See AR Tab 1, at 43, 72. The Court finds that it was reasonable for the agency to expect a certain level of competence and understanding demonstrated in the Project Management proposals. It was not an abuse of discretion for the agency to assess the quoter’s attention to risk, or lack thereof, in its Project Management proposal.12
Moreover, even if this were not considered a “weakness,” plaintiff’s overall adjectival rating for this component would not likely change. See supra Part II.F.2.a (concerning plaintiffs adjectival ratings for its WBS). Accordingly, DOL properly concluded that *19plaintiff did not adequately address risk in subfactor (b).
G. DOL Properly Evaluated Plaintiffs Quote With Respect to the Past Performance and Product Demonstration Factors
1. DOL Reasonably Evaluated Plaintiffs Past Performance
The solicitation required quoters to provide past performance references. AR Tab 1, at 70; see AR Tab 22, at 466. DOL sent Past Performance Questionnaires (“PPQs”) to each of the quoter’s respective references. AR Tab 22, at 466. DOL received four responses for plaintiff: one from the [* * *], one from the [* * *], and two from [* * *]. AR Tab 105.[* * *]’s questionnaires both rated plaintiff as “satisfactory” overall, the [* * *] rated plaintiff as “very good” overall, and [* * *] rated plaintiff as “unsatisfactory.”13 Id.; see also AR Tab 22, at 466. As a result of these ratings, plaintiff was given an overall past performance rating of “satisfactory.” AR Tab 22, at 466.
Plaintiff argues several points with regard to DOL’s past performance evaluation. First, plaintiff argues that [* * *] effectively controlled the outcome of plaintiffs past performance rating by providing two questionnaire responses on the same contract, both of which provided overall ratings of satisfactory. Second, plaintiff argues that it should not have received ratings of satisfactory from [* * *] because it had not been told that it performed inadequately during the course of the contract. Third, plaintiff argues that [* * *] questionnaire was flawed because it reviewed a period of time for which plaintiff was a subcontractor and issues with the prime contractor prevented it from performing adequately. Plaintiff contends that DOL should have provided it with an opportunity to explain its unsatisfactory rating from [* * *1.
The Court finds that plaintiffs arguments lack merit. First, [* * *]’s two questionnaires did not control the outcome of the evaluation. Both questionnaires rated plaintiff “satisfactory.” If one had been eliminated, plaintiff would have had one “satisfactory,” one “very good,” and one “unsatisfactory” past performance rating. It is unlikely that this would result in an adjectival rating higher than “satisfactory,” namely “very good” or “exceptional.”
Further, the solicitation explicitly reserved for DOL the ability to obtain past performance information beyond the information provided by the quoters’ references. AR Tab 1, at 70 (“The DOL may check other sources of past performance information.”). Accordingly, it was not improper for DOL to seek out additional information about the past performance of each offeror. Moreover, the past performance evaluation document provides DOL’s reasoning for requesting a second [* * *] questionnaire for plaintiff. The document explained that “[a]n additional reference, with firsthand knowledge of the procurement and implementation of [* * *], was also given PPQs to complete.” AR Tab 11, at 146. Therefore, it is reasonable to conclude that [* * *] PPQs concerning plaintiffs past performance. The agency’s action was certainly reasonable and explicitly contemplated by the solicitation.14
Plaintiff also argues that it should not have received “satisfactory” ratings from [* * *] because [* * *] never provided any negative feedback or criticism during the course of the contract. Plaintiff overlooks the fact that satisfactory is third on a scale of five ratings and indicates that “[performance meets contractual requirements” and that there were “some minor problems for which corrective actions taken by the contractor appear or were satisfactory.” AR Tab 105, at 2884. This is not a negative rating; in fact, this rating reflects a generally acceptable per*20formance.15 Additionally, plaintiff appears to simply disagree with the rating provided, which is not enough to demonstrate arbitrary or capricious conduct on behalf of DOL. Ban-num, Inc. v. United States, 91 Fed. Cl. 160, 173 (2009) (“[The plaintiffs] mere disagreement with the [agency’s] incumbent contract rating is not sufficient for this Court to overturn it.”). The solicitation provided that the CO was entitled to consider past performance ratings in her assessment of the quotes. AR Tab 1, at 70-72. The Court finds that the CO did not abuse her discretion and acted reasonably in her consideration of the past performance factor.
Finally, plaintiff takes issue with the fact that it could not provide an explanation to DOL of the negative rating [* * *] assigned it. First, as previously discussed, this is not a FAR Part 15 procurement; therefore FAR 15.306’s directive to discuss adverse past performance information does not apply. Second, DOL did not conduct past performance discussions with any offerors, see AR Tab 22, at 470, therefore treating all offerors fairly in accordance with FAR 1.102-2, see infra Part II.K Moreover, discussions were explicitly not contemplated by the solicitation, AR Tab 1, at 68, and the solicitation was clear that past performance questionnaires would be used as an evaluative factor, AR Tab 1, at 70. Third, DOL noted that each offeror received one “Iess-than-favorable” reference, either marginal or unacceptable, and determined that “no explanation would have changed the overall result of the Past Performance evaluation.” AR Tab 22, at 470. The CO explained that “[a]t best, if any offeror had submitted an explanation to rebut its rating, DOL might have concluded that the Past Performance on that particular project should not be viewed unfavorably. In all cases, it would not have caused DOL to upgrade the offerors’ overall Past Performance ratings.” AR Tab 22, at 470-71. Given the ratings the offerors received, specifically defendant-intervenor and plaintiff, this is a reasonable assessment. Therefore, discussions regarding past performance evaluations were not required by law and were not contemplated by the solicitation. And, in any event, discussions would not have altered the overall past performance ratings for any of-feror. Accordingly, the agency acted reasonably and within its discretion, and not arbitrarily, capriciously, or contrary to law, when it evaluated past performance according to the terms of the RFQ. See Bannum, Inc., 91 Fed.Cl. at 173 (“An agency does not act unreasonably when it sets forth specific past performance evaluation criteria and then applies those criteria.”).
2. DOL Reasonably Evaluated Plaintiff’s Product Demonstration
Next, plaintiff argues that DOL mi-sevaluated its product demonstration. Plaintiff bases this argument on the fact that (1) the chair of the TEP did not attend its product demonstration, but attended the demonstrations of the other offerors, and (2) the users at the product demonstration questioned whether plaintiff’s system was Section 508 compliant.
Neither of these arguments has merit. First, the solicitation did not state that the members of the TEP had to attend the product demonstrations. See AR Tab 1, at 71. The solicitation instead stated that “[u]p to five (5) DOL staff members will attend each of the [product demonstration] sessions and evaluate the product’s User Interface, Reports, Wizards/Help Tips, etc.” Id. Accordingly, there was no requirement or expectation that the TEP chair attend the product demonstrations.
Second, plaintiff argues that its Section 508 compliance, see supra note 6, was questioned as a result of the product demonstration and that this is erroneous because it had never before been cited as being Section 508 noncompliant during the incumbent contract. Plaintiff neglects to realize that the comments about Section 508 compliance appear only in the “Summary of Product Demonstrations,” which noted that “[t]he users [at the product demonstration] questioned whether the system is Section 508 compliant.” AR Tab 9, at 93-94. This document *21contains a mere recital of the observations of users present at the product demonstration as summarized by Ms. Tova Stein, Hr’g Tr. at 17-18, an advisory member of the TEP, see AR Tab 21, at 404-05. Section 508 compliance did not factor into the CO’s discussion or determination regarding product demonstration. See AR Tab 22; see also Hr’g Tr. at 16-17, 35. The record reflects that this was simply the agency’s thorough recordation of the comments it received as a result of the product demonstration. Accordingly, DOL did not act arbitrarily, capriciously, or contrary to law, nor did it abuse its discretion, with regard to how it conducts ed and assessed the product demonstration factor.
H. DOL Properly Conducted a Price Reasonableness Analysis
Plaintiff argues that DOL failed to conduct a proper price reasonableness analysis. In support of its contention, plaintiff states that the agency’s analysis was erroneous because it “judged all prices reasonable simply because they were below the IGCE.” Pl.’s MJAR 42. Additionally, plaintiff takes issue with DOL’s determination that the price disparity among the offerors, particularly between plaintiff and defendant-intervenor, was due to the types of solutions being proposed — specifically a new-to-the-market product from defendant-intervenor and an upgrade to DOL’s existing product from plaintiff. Id. at 42-43. Relatedly, plaintiff asserts that the spread in prices between plaintiff and defendant-intervenor “should have raised red flags with DOL as to price reasonableness.” Id. at 43. Finally, plaintiff argues that the rationale presented by the CO in the award decision document is post hoc because, despite referencing the same price proposals, it is more extensive than her initial analysis. Id. at 42-43.
The Court does not find any of plaintiffs arguments persuasive. First, FAR 8.404, which governs this procurement, states:
Supplies offered on the schedule are listed at fixed prices. Services offered on the schedule are priced either at hourly rates, or at a fixed price for performance of a specific task_ GSA has already determined the prices of supplies and fixed-price services, and rates for services offered at hourly rates, under schedule contracts to be fair and reasonable. Therefore, ordering activities are not required to make a separate determination of fair and reasonable pricing, except for a price evaluation as required by 8A05~2(d). By placing an order against a schedule contract using the procedures in 8.405, the ordering activity has concluded that the order represents the best value.16
FAR 8.404(d) (emphasis added). In turn, FAR 8.405-2(d) states that “[t]he ordering activity is responsible for considering the level of effort and the mix of labor proposed to perform a specific task being ordered, and for determining that the total price is reasonable.” FAR 8.405-2(d) (emphasis added). That reasonableness determination must be documented. FAR 8.405-2(f) (“The Ordering Activity shall document ... [t]he price reasonableness determination required by paragraph (d) of this subsection.”).
“Price reasonableness generally addresses whether a price is too high....” First Enter. v. United States, 61 Fed.Cl. 109, 123 (2004); accord Tech Sys. Inc. v. United States, 98 Fed.Cl. 228, 264 (2011); see also Afghan Am. Army Servs. Corp. v. United States, 90 Fed.Cl. 341, 356 (2009) (“[T]he purpose of price reasonableness analysis is to ensure that the offeror’s price is not unreasonably high or unreasonably low.” (quoting Erinys Iraq Ltd. v. United States, 78 Fed.Cl. 518, 531 (2007)) (internal quotation marks omitted)). This is distinct from price realism, which seeks to “ensure that an offeror understands the solicitation requirements and actually can perform those requirements.” Erinys Iraq Ltd., 78 Fed.CI. at 531. Here, the parties do not dispute that a price reasonableness analysis was required.
One way to determine price reasonableness is to compare the quoters’ price *22proposals to the IGCE. See FAR 15.404-l(b)(2)(v);17 see Tech Sys. Inc., 98 Fed.Cl. at 264; Holloway & Co., 87 Fed.Cl. at 395 (involving an FSS procurement). Here, that is precisely what the CO did, noting that all price proposals fell below the IGCE of [* * *]. AR Tab 22, at 467-68. As discussed infra, the IGCE itself was reasonable. See infra Part II.I. Accordingly, the CO was within her discretion when she determined that the price proposals were reasonable based on their comparison to the IGCE. The court also finds that the documentation of this assessment, see AR Tab 22, at 471-72, is adequate.
Additionally, the CO discussed the reason for the price discrepancy between plaintiff and defendant-intervenor, noting the differences in their proposed products, AR Tab 22, at 468, 471-72, and the overall desirability of purchasing defendant-intervenor’s technically superior, more efficient solution, AR Tab 22, at 472-74 (discussing the priee/technical tradeoff analysis). The Court finds the agency’s rationale regarding the discrepancy among the offerors’ price proposals to be reasonable.
Finally, plaintiffs argument that DOL’s analysis represents a post-hoc rationale for its price reasonableness determination is unfounded. First, that the evaluation of price proposals in the second award selection document is slightly longer and more detailed than the evaluation of price proposals in the initial award selection document does not suggest that the agency engaged in conduct that was arbitrary, capricious, not in accordance with law, or otherwise unreasonable. In fact, the second evaluation and source selection document was in response to a protest plaintiff mounted which alleged, among other things, that DOL did not engage in a proper price reasonableness analysis. AR Tab 83, at 2190-93. Plaintiffs protest also challenged the agency’s best value determination, stating that a tradeoff analysis weighing technical and price factors was not conducted. AR Tab 83, at 2193.
In response to this protest, the agency reevaluated the proposals and drafted a new award decision document. That it included additional detail and analysis regarding the price reasonableness determination is entirely reasonable, especially in light of the allegations in plaintiffs protest. It appears that, at most, the agency was responding to perceived flaws that plaintiff identified. This cannot now be faulted, especially because the Court finds DOL’s price reasonableness rationale and its documentation to be reasonable and adequate.
I. The IGCE Was Not Irrationally High
Related to its price reasonableness argument is plaintiffs contention that the IGCE was irrationally high. The IGCE was [* * *], which is more than [* * *] higher than the highest-priced quote DOL received. Plaintiff states that this in itself suggests that the IGCE was unreasonable. Additionally, plaintiff contends that the research supporting the IGCE is skewed. Plaintiff argues that the RFI was “based almost verbatim on specifications for a Compusearch product.” PL’s MJAR 44. Thus, plaintiff alleges that the “IGCE appears to be geared toward accommodating an award to Compusearch.” Id. at 45. Additionally, plaintiff challenges the methodology behind the IGCE by stating that DOL simply took “the highest-priced offering on the market and insert[ed] that amount as the IGCE.” Id. This, plaintiff maintains, was unreasonable.
“Generally, independent government estimates ‘represent the agency’s best estimate of the most reasonable current price of the products or services being procured.’ ” Process Control Techs, v. United States, 53 Fed.Cl. 71, 77 (2002) (quoting John Cibinie, Jr. & Ralph C. Nash, Jr., Formation of Government Contracts 1317 (3d ed. 1998)). “While the court accepts that an IG[C]E need not be supported with exhaustive details, the agency must be able to demonstrate the basis for the estimate, where as here, the analysis is questioned.” Nutech Laundry & Textile, Inc. v. United States, 56 Fed.Cl. 588, 594 (2003).
*23In this case, the record adequately supports DOL’s IGCE, and DOL has satisfactorily demonstrated the basis for its estimate. In DOL’s acquisition plan, issued June 25, 2010, the agency stated that “[t]he total estimated lifecycle cost is a maximum of [* * *] (jf vendor hosted).” AR Tab 18, at 389. This estimate was “based on a comparison of labor categories, cost estimates received from the market research conducted in January 2010, and the requirements established in the current contract plus an appropriate price escalation.” Id.
Regarding the market research conducted, DOL issued an RFI, which included 419 questions prospective vendors were to answer. AR Tab 25; see AR Tab 90, at 2296. These questions were “based on the identified and documented requirements of the procurement community in DOL.” AR Tab 90, at 2296. Additionally, the RFI asked vendors to “provide a Rough Order of Magnitude (ROM) cost estimate for” several service models. AR Tab 25, at 538. Two of the three identified alternative solutions provided ROMs totaling [* * *], see AR Tab 90, at 2310, and [* * *], see AR Tab 90, at 2309. The third alternative solution was plaintiffs, and it was singled out for its low price of [* * *]. AR Tab 90, at 2306.
Accordingly, the IGCE was relatively close to two of the three potential solutions identified after market research was completed. That these two solutions were proposed by large businesses does not necessarily reveal any partiality toward large businesses. This is especially true considering plaintiffs was one of the identified alternative solutions.
Additionally, the record reflects an adequate documentation of the IGCE’s calculátion. A spreadsheet containing figures computed in part using information from DOL’s market research and the cost of the then-current contract demonstrates that the estimated cost for the base period of a vendor-hosted service,18 was [* * *]. AR Tab 19, at 395. The estimated cost for each option year for vendor-hosted services was [* * *]. AR Tab 19, at 396. Taken together, the cost of each of the four option years plus the base year totals [* * *]. See AR Tab 18, at 388. Nothing in the record indicates that these calculations were arbitrary, capricious, or otherwise unreasonable.
Plaintiff also argues that “DOL’s IT Dashboard reflects a total projected cost of only $12.5 million for the AMS.” Pl.’s MJAR 44. Plaintiff argues that it was surprised that the IGCE was so high in part because the IT Dashboard did not “indicate that magnitude of expenditure.” Hr’g Tr. at 8-9.
This argument is unavailing. The parties explain that the IT Dashboard is a system through which the agency publishes budgeting information for certain projects.19 Hr’g Tr. at 8-9, 25-26. In this case, the IT Dashboard states that the total planned cost of DOL’s AMS procurement was $12.5 million over the course of a two-year period, AR Tab 66, at 1762, not the five-year period that the initial solicitation contemplated, AR Tab 34, at 628. Further, no evidence suggests that the IT Dashboard provided a figure that DOL was obligated to employ in its procurement process. Accordingly, it cannot be properly used to assess the reasonableness of DOL’s IGCE.
In conclusion, the Court finds that the IGCE was reasonable and that the agency *24has adequately demonstrated the basis for its estimate.
J. DOL’s Tradeoff Analysis Was Reasonable and Adequately Documented
Plaintiff next takes issue with DOL’s tradeoff analysis. First plaintiff alleges that the errors made throughout the solicitation process, such as conducting the reevaluation with the same TEP and assessing plaintiffs understanding of risk under technical subfaetor (b), “obviously infected” the tradeoff analysis. Pl.’s MJAR 46-48. Each “error” plaintiff cites, however, has been addressed by the Court and has been found to be a reasonable action taken by DOL within its sound discretion. Therefore, plaintiffs argument on this ground fails.
Plaintiff next argues that the tradeoff analysis fails to justify the price premium the agency chose to pay for defendant-interve-nor’s product. Pursuant to FAR 8.405 — 2(f), the contracting officer must document “[t]he rationale for any tradeoffs in making the selection.” FAR 8.405 — 2(f)(5). “The amount of documentation necessary in FAR Subpart 8.4 procurements does not rise to the level required by FAR Part 15.” Matt Martin Real Estate Mgmt. LLC v. United States, 96 Fed.Cl. 106, 116 (2010); accord Allied Tech. Grp., Inc., 94 Fed.Cl. at 50; see supra Part II.E. Accordingly, the high standards for a proper tradeoff analysis under FAR Part 15 discussed by plaintiff in its motion for judgment on the administrative record do not apply. See Pl.’s MJAR 49-50.
Even though a lower threshold applies for a FAR Part 8 tradeoff analysis, the Court will analyze the CO’s tradeoff decision to determine whether it is reasonable and within the agency’s discretion. See Allied Tech. Grp., Inc., 94 Fed.Cl. at 50 (finding, in the context of a FAR Part 8 procurement, that a “CO’s best value determination ... was coherent and a reasonable exercise of his discretion”).
Here, DOL engaged in a lengthy tradeoff analysis, detailing the reasons defendant-intervenor presented the best overall value to the Government. See AR Tab 22, at 472-74. The CO and contracting specialist fully explored the benefits of defendant-inter-venor’s product relative to the benefits of plaintiffs product. Additionally, the CO put a premium on efficiency, explaining that plaintiffs “proposed system, which users find difficult to interface with, and which is not intuitive or user-friendly, does not serve DOL’s needs.” AR Tab 22, at 474. This was properly within her discretion and certainly reasonable given the nature of the solicitation and the product being procured.
Plaintiff also contends that the CO incorrectly applied the RFQ award criteria to her best-value analysis by stating that “non-price elements combined are significantly more important than price.” Pl.’s MJAR 51-52 (quoting AR Tab 22, at 472) (internal quotation marks omitted). The RFQ provided that “Technical Approach is significantly more important than Past Performance and when combined, these two factors are more important than Price.” AR Tab 1, at 72. The RFQ further explained that the “product demonstration is equal in importance to Past Performance.” Id. Plaintiff contends that the CO’s statement that non-price elements are significantly more important than price misconstrues the RFQ.
In the Court’s opinion, the CO was not using “significant” as a term of art and included it in the analysis merely to explain that price was outweighed by the non-price factors. This is in accordance with the solicitation. Her tradeoff analysis does not suggest that she unreasonably assessed the weight of price relative to non-price factors; indeed, had she not included the term significant in her tradeoff analysis, it does not appear that the analysis itself would have changed. The tradeoff properly accounts for defendant-intervenor’s higher ratings and technical superiority. The analysis evidences adherence to the terms of the solicitation and is not only reasonable, but well within the CO’s discretion. Accordingly, the Court finds that DOL conducted and adequately documented a reasonable tradeoff analysis.
K. DOL Did Not Breach the Duty to Treat Bids Fairly and Honestly
Plaintiff argues that DOL breached the duty to treat bids fairly and honestly and *25violated various FAR provisions during the course of the procurement. Pl.’s MJAR 55-60. Specifically, plaintiff points to FAR 1.602-2, which tasks contracting officers with the responsibility of “ensuring] that contractors receive impartial, fair, and equitable treatment”; FAR 1.102-2, which states that “[a]ll contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same”; and FAR 3.101-1, which provides that “[government business shall be conducted ... with complete impartiality and with preferential treatment for none.”
In support of its argument, plaintiff reiterates many of the grievances it has already alleged, which effectively amount to a contention that throughout the procurement DOL was attempting to direct an award to defendant-intervenor. See Pl.’s MJAR 55-60. It contends that “DOL’s persistent pattern of conduct demonstrates bias and the absence of a reasonable basis for its decision to award a contract to Compusearch.” Id. at 58.
Here, as discussed, the Court finds that DOL did not act arbitrarily, capriciously, or contrary to law, nor did it abuse its discretion, in the course of the procurement process. Accordingly, DOL did not breach the duty to treat bids fairly and honestly. See FAS Support Servs., LLC v. United States, 93 Fed.Cl. 687, 694 (2010) (“For recovery under the implied contract for bids to be fairly and honestly considered, a plaintiff has to establish arbitrary and capricious action, or an abuse of discretion by the government.” (citing Keco Indus., Inc. v. United States, 492 F.2d 1200 (Ct.Cl.1974))); L-3 Commc’ns Integrated Sys., L.P. v. United States, 94 Fed.Cl. 394, 397 (2010). Furthermore, the Court finds that DOL conducted the procurement in accordance with FAR; nothing suggests that the quoters were treated unfairly or unequally.
With regard to plaintiffs allegations of bad faith and bias, plaintiff has not presented facts sufficient to overcome the presumption of good faith afforded the agency. Galen Med. Assocs., Inc., 369 F.3d at 1330 (noting that the Government is presumed to act in good faith); see also Avtel Servs., Inc. v. United States, 70 Fed.Cl. 173, 210 (2006) (collecting cases regarding the presumption of good faith). To rebut this presumption, a protestor must provide “almost irrefragable,” “clear and convincing” proof of bad faith. Galen Med. Assocs., Inc., 369 F.3d at 1330. “In the eases where the court has considered allegations of [governmental] bad faith, the necessary ‘irrefragable proof has been equated with evidence of some specific intent to injure the plaintiff.” Id. (quoting Torncello v. United States, 681 F.2d 756, 770 (Ct.Cl. 1982)) (internal quotation marks omitted); accord Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1288 (Fed.Cir.2010). Here, plaintiff has presented no such evidence of specific intent to injure nor any other record evidence sufficient to raise an inference of bad faith or bias on the part of DOL.20
CONCLUSION
In view of the foregoing, the Court GRANTS defendant’s and defendant-interve-nor’s motions for judgment on the administrative record and DENIES plaintiffs motion for judgment on the administrative record. Additionally, plaintiffs motion to stay contract performance pending the court’s final ruling (docket entry 56, July 12, 2012) is DENIED as moot. The Clerk shall enter judgment accordingly.
Some information contained herein may be considered protected information subject to the protective order entered in this action on May 4, 2012 (docket entry 17). This Opinion and Order shall therefore be filed under seal. The parties shall review the Opinion and Order to determine whether, in their view, any information should be redacted in accordance with the terms of the protective order prior to publication. The Court ORDERS that the parties shall file, by Thursday, Au*26gust 9, 2012, a joint status report identifying the information, if any, they contend should be redacted, together with an explanation of the basis for each proposed redaction.
IT IS SO ORDERED.
. "Generally, an acquisition management system would be used by the agency to order material and supplies.” Distributed Solutions, Inc. v. United States, 104 Fed.Cl. 368, 371 (2012).
. Plaintiff submitted an amended memorandum in support of its motion for judgment on the administrative record that provided proper page numbers. The Court cites to this document throughout its opinion.
. The original paragraph explaining subfactor (a) was subsequently altered by amendment six to the RFQ. See AR Tab 7, at 90.
. The solicitation set forth various requirements for each component identified within subfactor (b). See AR Tab 1, at 32-55.
. Prior to the January 27, 2011 amendment (amendment seven), AR Tab 8, DOL had twice amended the December 9, 2010 RFQ, see AR Tab 22, at 456; see also AR Tab 6 (amendment five); AR Tab 7 (amendment six). Amendment five, in part, removed the following paragraph from the "Basis for Award” section of the RFQ:
Rejection of Unrealistic Quotes: The Government may but is not required to reject any quote that is evaluated to be unrealistic in terms of program commitments, including task order terms and conditions, or unrealistically high or low in prices when compared to Government estimates, such that the quote is deemed to reflect an inherent lack of competence or failure to comprehend the complexity and risks of the requirements.
AR Tab 6, at 89; see AR Tab 1, at 72. Amendment six principally deleted the paragraph describing subfactor (a) and replaced it with a similar paragraph requiring that quoters provide template language in response to each identified requirement. AR Tab 7, at 90. In addition, the RFQ was later amended once more, as mentioned previously. See supra Part I.A; AR Tab 93 (amendment eight). Amendment eight modified, among other things, the solicitation’s performance metrics and the performance period. AR Tab 93.
. Section 508 of the Rehabilitation Act requires that federal departments and agencies ensure that their electronic and information technology is accessible to users with disabilities. 29 U.S.C. § 794d. Section 508 compliance was mandatory under subfactor (a) of the technical factor of the solicitation. The solicitation stated: "The Quote shall be evaluated as to what extent it meets each functional requirement of Attachments 2-4. Requirements in attachments 2-4 identified as 'High' priority are mandatory.,AR Tab 1, at 69. Attachment 3 to the solicitation. Technical Requirement, provided that Section 508 compliance was high priority. See AR Tab 96, at 2514.
. DSI does not set out any of the above allegations as arguments unto themselves. All of these concepts are discussed or implied in the background section of plaintiff's motion for judgment on the administrative record or throughout its other arguments.
. This holds true for DOL’s assessment of the technical factor for defendant-intervenor. See Pl.’s MJAR 40-41 (arguing that the TEP’s assessment of defendant-intervenor’s technical factor was arbitrary and capricious for the same reasons it alleged that the TEP’s assessment of plaintiff’s technical factor was arbitrary and capricious).
. Although FAR Part 15 does not apply, the Court will review DOL's actions to ensure they comply with FAR’s requirement of fundamental fairness in the procurement process. Allied Tech. Grp., Inc., 94 Fed.Cl. at 44; Unisys Corp. v. United States, 89 Fed.Cl. 126, ¡40 (2009). This requires that "[a]ll contractors and .prospective contractors shall be treated fairly and impartially but need not be treated the same.” FAR 1.102-2(c)(3). DOL treated all quoters fairly with respect to discussions. As plaintiff points out, "DOL held Discussions with each of the vendors in the competitive range following product demonstrations." PL’s MJAR 33; see AR Tab 22, at 457. Nothing in the record implies that these discussions were unequal or that one quoter was provided more information than another.
. This component had three identifiable strengths. AR Tab 21, at 43 3.
. This component is one of ten evaluative components that comprise subfactor (b) of the technical subfactor. Accordingly, the overall impact of the TEP's assessment of plaintiff’s WBS is slight.
.Moreover, the TEP included this analysis concerning risk in its discussion of a table plaintiff provided in its quote “that relate[d] the AMS requirements by solicitation section to the implementation deliverables.” AR Tab 21, at 432. That risk was not its own distinct discussion supports the conclusion that the agency did not improperly consider it a separate component or subfactor.
. Note that there was no "good” rating available. The adjectival scale responders were instructed to utilize was, in ascending order, unsatisfactory, marginal, satisfactory, very good, and exceptional. See AR Tab 105, at 2884.
. In addition to this record evidence, defendant explains that two questionnaires were submitted because "[* * *] had only been in her position for a short time when the questionnaires were distributed, so [* * *] also sought feedback from her predecessor [* * *], who was no longer employed by [* * *].” Def.'s Reply 13 (citing AR Tab 105, at 2883-94); see also Hr'g Tr. at 12.
. DOL indicates that the only ratings that were considered unfavorable were "unacceptable” and "marginal.” AR Tab 22, at 470.
. " 'Ordering activity' means an activity that is authorized to place orders, or establish blanket purchase agreements (BPA), against the General Services Administration’s (GSA) Multiple Award Schedule contracts.’’ FAR 8.401.
. Although FAR Part 15 does not govern this case, the Court may look to it for definitions and guidance when necessary. See Allied Tech. Grp., Inc., 94 Fed.Cl. at 44; see also supra Part II.E.
. Vendor hosted means that "[t]he hardware will be housed and hosted at the Contractor's chosen data center facility” and that "infrastructure services ... will be provided by the Contractor and/or the contractor’s chosen hosting facility.” AR Tab 1, at 14.
.
The IT Dashboard is a website enabling federal agencies, industry, the general public and other stakeholders to view details of federal information technology investments.
The purpose of the Dashboard is to provide information on the effectiveness of government IT programs and to support decisions regarding the investment and management of resources. The Dashboard is now being used by the Administration and Congress to make budget and policy decisions.
Federal IT Dashboard, http://www.itdashboard. gov/ (last visited July 27, 2012); see 74 Fed.Reg. 66661-01, 66662 (Dec. 16, 2009) ("[T]he IT dashboard Web site, which is a part of USAspend-ing.gov, provides details of Federal Information Technology (IT) investments and is based on data received from agency reports to the Office of Management and Budget (OMB).”).
. Notably, to the extent plaintiff contends that DOL's prior evaluations of plaintiff’s performance on the incumbent contract demonstrate bias, this court has before found that "[c]riticism of [a p]laintiff’s performance on the incumbent contract in areas required to be evaluated or erroneous evaluations or inconsistent scoring do not rise to the level of motivation for bias.” Four Points by Sheraton v. United States, 63 Fed.Cl. 341, 344 (2005). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218301/ | OPINION
FIRESTONE, Judge.
On February 2, 2012, plaintiffs, seven small transportation service providers (“TSPs” or more generally, “carriers”), filed this pre-award bid protest. Plaintiffs challenge several terms of the rate solicitations issued by the Department of Defense (“DOD”) Surface Deployment and Distribution Command (“SDDC”). SDDC rate solicitations are issued annually, and govern the transportation of the personal property (also called “household goods”) of military service members and civilian DOD employees (collectively referred to here as “service members”). Plaintiffs challenge the 2012-2013 rate solicitations, which went into effect on May 15,2012.
The terms of the challenged rate solicitations provide that a TSP will not collect or require payment of any freight charges for shipments of personal property totally lost or destroyed in transit. As to shipments lost or destroyed in part, the terms require that a TSP must refund the portion of its freight charges corresponding to the lost or destroyed portion at the time the TSP settles the loss or destruction claim.1 The court will collectively refer to these terms as “freight refund terms.”
Plaintiffs allege that the freight refund terms are contrary to law and arbitrary and capricious in light of the “full replacement value” liability scheme (“FRY liability”), mandated by Congress under 10 U.S.C. § 2686a (2006 & Supp. Ill 2009), that now applies to DOD personal property shipping contracts. Section 2636a and its accompanying regulations require a TSP to pay the full replacement value for loss or destruction of personal property transported under a shipping contract when a service member submits a claim for loss or destruction within nine months of delivery. 10 U.S.C. § 2636a(a); Defense Transportation Regulations 4500.9-R (“DTR”) Part IV, App. G, Attach. G6, § A.l.a; AR 10671.2 The statute itself does not define “full replacement value.” However, SDDC’s regulations define “full replacement value” as “replacement cost at destination,” which includes any shipping charges and sales tax required to replace the item at its destination. DTR Part IV, App. G, Attach. G6, § B.3.g; AR 10673. Section 2636a(b) also provides for an “offset” remedy. The offset remedy requires a TSP to deduct the full replacement value of the lost or destroyed property from the amount owed by the United States to the TSP under the shipping contract if the service member and the TSP cannot settle a claim. 10 U.S.C. § 2636a(b).3
*30Plaintiffs argue that SDDC’s inclusion of the freight refund terms alongside the FRV liability scheme violates 10 U.S.C. § 2636a. Plaintiffs contend that § 2636a provides a complete remedy for the government and service members for the loss or destruction of service members’ personal property, and that this remedy does not include the additional freight refund terms established by SDDC. Plaintiffs argue that paying the service member for full replacement value at destination, including shipping charges, and then refunding the original freight charges to the government makes the government and the service member “more than whole,” contrary to the aim of § 2636a and the intent of Congress. Plaintiffs also argue that the freight refund terms violate general liability principles for the interstate shipment of household goods under the Carmack Amendment, 49 U.S.C. § 14706 (2006), which plaintiffs assert provides a liability ceiling for the loss or destruction of service members’ personal property. Plaintiffs further assex’t that the freight refund terms are improper sanctions under the Administrative Procedure Act (“APA”), 5 U.S.C. § 558(b). Finally, plaintiffs contend that the government’s reliance on inapplicable regulations and statutes to justify its decision to include the freight refund terms in the challenged rate solicitations was arbitrary and capricious.
Plaintiffs request declaratory judgment and injunctive relief against SDDC’s inclusion of the freight refund terms in the solicitations. Plaintiffs ask that the court permanently enjoin the government from including or enforcing the freight refund terms set forth in the challenged rate solicitations.
The government argues that plaintiffs lack standing to bring this bid protest because they have not suffered a competitive injury as a result of the inclusion of the freight refund terms in the challenged solicitations, and because they lack prudential standing under 10 U.S.C. § 2636a, which the government asserts was enacted only for the benefit of service members. Should the court reach the merits of plaintiffs’ protest, the government argues that the freight refund terms do not violate any applicable statutes or regulations, and that SDDC adequately justified its decision to include the freight refund terms alongside FRV liability in its decision. The government seeks judgment in its favor on the administrative record.
For the reasons discussed below, the court holds that plaintiffs possess standing to challenge the rate solicitations. Therefore, the government’s motion to dismiss based on lack of jurisdiction under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) is DENIED. The court further finds that the inclusion of the freight refund terms in the challenged solicitations is contrary to law. Thus, plaintiffs’ motion for judgment on the administrative record is GRANTED, and the government’s cross-motion for judgment on the administrative record is DENIED.
I. BACKGROUND
Military service often requires service members and their families to move between duty stations. Under 37 U.S.C.A. § 476 (West 2012), DOD bears the cost of service member moves, including the movement of personal property.4 Because of the volume of moves, SDDC establishes uniform terms that govern the contractors that DOD hires to perform the moves.
Each year, SDDC releases new solicitations for the submission of rates for transportation services under these uniform terms, conditions, and rules. These terms and conditions will apply to a large variety of “lanes” or “channels” — different types of transportation routes — on which TSPs may bid. The documents that outline the terms for the 2012-2013 DOD moves are the Domestic 400-NG-2012 Tariff (“NG-2012”) and the International Tender 2012 (“IT-2012”) (collectively referred to as “the solicitations”). AR 2872 (NG-2012); AR 11016 (IT-2012). Qualified TSP bidders *31who submit rates during the 2012 bidding period, if successful, will be bound by the terms and conditions set forth, for international movements, in IT-2012, and for domestic movements, in NG-2012. To be eligible to receive bookings of household goods shipments, TSPs must also agree to comply with all provisions of the Defense Transportation Regulations (“DTR”) “Tender of Service.” See DTR, Part IV, App. B (the 2012 Tender of Service). The terms of the Tariff or Tender and Tender of Service are incorporated into the contracts, called the bills of lading, for each DOD move.
Plaintiffs challenge several terms in IT-2012 and NG-2012, which went into effect on May 15, 2012. Specifically, plaintiffs challenge Items 402(a) and (b) of IT-2012 and Items 46A(1) and (2) of NG-2012 — the freight refund terms for each solicitation. These provisions prohibit TSPs from collecting freight charges for lost or destroyed property and mandate that TSPs refund the portion of their freight charges for items lost or destroyed in transit. Items 402(a) and 46A(1) state that a TSP will “not collect ... any published [freight] charges ... when that shipment is totally lost or destroyed in transit.” AR 11072 (IT-2012); AR 2909 (NG-2012). Items 402(b) and 46A(2) state that “[i]n the event that any portion, but less than all, of a shipment ... is lost or destroyed in transit” a TSP will refund that “portion of its published freight charges ... corresponding to [that] portion of the shipment which is lost or destroyed in transit.” AR 11072-73 (IT-2012); AR 2909 (NG-2012).5
The solicitations also reference the government’s general administrative offset authority under 31 U.S.C. § 3716 (2006 & Supp. IV 2010), and authorize the government to access the third party electronic payment system and to “generate[] and approve electronic bills (ebills) in lieu of an administrative offset under 31 USC 3716.” AR 2910 (NG-2012); AR 11103 (IT-2012). The solicitations provide that “[a]pproved ebills paid or collected under this provision ... shall be treated as an administrative offset for purposes of appeals and refunds.” AR 2910 (NG-2012); AR 11103 (IT-2012). Plaintiffs contend that this term means that the government can enforce freight refunds by electronically debiting other amounts due to TSPs for movements other than those subject to claims for loss or destruction. Pis.’ Mot. at 5 n. 3.
Plaintiffs challenge the freight refund terms and the offset provisions in IT-2012 and NG-2012 as arbitrary, capricious, and contrary to law when used in conjunction with FRV liability. Plaintiffs base their claim in part on the historic legislative and regulatory standards governing TSP movement of sendee members’ personal property, and how those standards interact with the current FRV liability scheme. The court now turns to the legislative and regulatory history and the current framework governing TSP liability for lost or destroyed household goods.
A. Statutory History and Current Regulatory Framework Governing TSP Liability for DOD Personal Property Moves
1. Old “depreciated value” liability scheme.
Prior to the mandatory implementation of FRV liability under 10 U.S.C. § 2636a in 2008, rate solicitations for DOD personal property moves limited the liability of TSPs to a depreciated value of $1.25 multiplied by the weight of an item, unless the service member paid an additional fee, called a “valuation charge,” to declare a higher value. See, e.g., AR 527, 593-94 (Domestic Personal Property Rate Solicitation D-12 for 2007); AR 3784 (International Personal Property Rate Solicitation 1-18 for 2007). For exam-*32pie, if a shipment weighed 10,000 pounds, the liability of a TSP would be limited to $12,500, unless the service member purchased additional coverage options. Under this “depreciated value” liability standard, a service member often did not receive enough compensation to replace the lost goods at the destination of the move, due to the relatively low value of used household goods. These pre-2008 solicitations also contained freight refund terms similar to those challenged by plaintiffs. These terms required TSPs to refund the portion of their freight charges for property partially lost or destroyed, and forbade TSPs from collecting freight charges on totally lost or destroyed shipments. See AR 535 (Domestic Personal Property Rate Solicitation D-12 for 2007); AR 3788 (International Personal Property Rate Solicitation 1-18 for 2007).
Because under the depreciated value standard service members would often receive less than what it cost them to replace the household goods lost or destroyed in shipment, Congress, in the National Defense Authorization Act for Fiscal Year 2004, permitted DOD to require payment to service members pursuant to FRY liability under a program called “Families First.” Pub.L. No. 108-136, § 634, 117 Stat. 1392, 1509 (2003) (codified as amended at 10 U.S.C. § 2636a); see also H.R.Rep. No. 108-354, at 709 (2003) (Conf.Rep.), reprinted in 2004 U.S.C.C.A.N. 1407, 1484. The “Families First” program encountered delays in its implementation. Mandatory Provision of Full Replacement Value Coverage by Department of Defense Personal Property Transportation Service Providers (TSPs)/Contractors, 71 Fed.Reg. 75,509, 75,509-10 (Dec. 15, 2006). As a result, three years later, the John Warner National Defense Authorization Act of 2007 required DOD to begin including FRV liability in all contracts for personal property moves involving service members. Pub.L. No. 109-364, § 363, 120 Stat.2083, 2167 (2006) (codified as an amendment to 10 U.S.C. § 2636a); S.Rep. No. 109-254, at 335 (2006). This mandate was codified at 10 U.S.C. § 2636a, to which the court now turns.
2. FRV liability scheme under 10 U.S.C. § 2636a.
a. 10 U.S.C. § 2636a and accompanying regulations.
10 U.S.C. § 2636a(a) now requires SDDC to include, in personal property transportation contracts, terms that compel a TSP to pay the full replacement value of household goods lost or destroyed in transit. Under the current version of the statute and the applicable DTR, whether a service member may collect full replacement value depends on when the sendee member submits his or her claim for lost or destroyed household goods. If a service member submits a claim within nine months of delivery, the TSP “must be liable for the full, undepreciated replacement value on all lost or destroyed items.” DTR, Part IV, App. G, Attach. G6, § Al.a; see AR 10679. Full replacement value is defined in the DTR as “the replacement cost at destination” and “includes any shipping charges and sales tax.” DTR, Part IV, App. G., Attach. G6, § B.3.g; AR 10673. FRV liability is not mandatory if a claim is filed after nine months from the date of delivery. If a claim is filed after nine months from delivery but within a two year limitation period, the service member may receive compensation for the depreciated value of the pei’sonal property. DTR, Part IV, App. G., Attach. G6, § A.l.e; AR 10673.
Claims for loss or destruction of personal property are also subject to certain liability limits. The DTR provide that when a claim is filed with the TSP within nine months of delivery, the TSP’s liability is capped at $5000 per shipment or $4.00 multiplied by the net weight of the shipment, whichever is greater, but not to exceed $50,000. DTR, Part IV, App. G, Attach. G6, § B.2.b; AR 10671. If a claim is filed after nine months but within two years of delivery, the claim is capped under the depreciated value calculation of $1.25 multiplied by the net weight of the shipment. DTR, Part IV, App. G., Attach. G6, § B.2.c; AR 10671.
If a TSP does not settle a service member’s timely filed claim for full replacement value, 10 U.S.C. § 2636a(b) provides for an offset remedy. In that case, “the amount equal to the full replacement value for the *33baggage or household effects shall be deducted from the amount owed by the United States to the [TSP].” Id. The offset amount is remitted to the service member under this provision. Id.; see DTR, Part IV, App. G, Attach. G6, § A.l.a.
The challenged solicitations contain FRV liability provisions consistent with the statute and the DTR. AR 2883-85 (NG-2012); AR 11060-62 (IT-2012). As noted above, the challenged solicitations also contain freight refund terms. AR 11072-73 (IT-2012); AR 2909-10 (NG-2012). In this case, plaintiffs allege that 10 U.S.C. § 2636a(a) and (b) provide the exclusive remedy against TSPs for lost or destroyed personal property. Therefore, plaintiffs allege, SDDC should have revised its rate solicitations to exclude freight refund terms in light of this comprehensive scheme. Plaintiffs base their argument, in part, on the legislative history of 10 U.S.C. § 2636a, to which the court now turns,
b. Legislative history.
The legislative history surrounding the initial enactment of § 2636a reflects Congress’s consideration of both service members and industry in deciding to impose FRV liability. The House Report accompanying the National Defense Authorization Act for Fiscal Year 2004 — the act that initially authorized FRV liability — provides in relevant part:
The conferees understand that the Department of Defense intends to implement changes to claims procedures, including use of the full replacement value standard, as part of more comprehensive changes under the “Families First” Program. The conferees fully support implementation of the various aspects of the “Families First” program, including use of customer surveys, increased direct deliveries through customer to carrier contact, and the on-line claims filing processing. Additionally, the conferees expect that the full replacement value standard for loss or damage will be implemented in a manner that is consistent with commercial practices and that is fully explained to military members who should benefit from this new approach. The conferees recognize that a reasonable time period should be established in which a servieemember’s claim • should be resolved before the services exercise their prerogative to make deductions from the amount owed to the carrier by the United States. The conferees support adoption of industry recommendations wherever feasible, and expect the Department to adopt a reasonable time period to resolve claims, ideally no less than sixty days, as part of its implementation of full value replacement. The conferees urge the Department to continue working closely with industry representatives to resolve open issues prior to implementation and intend to monitor both the implementation of “full replacement value” and the “Families First” Program and assess the overall costs of the program and the impact of these initiatives on small businesses and quality of life of military members and their families.
H.R.Rep. No. 108-394, at 709-10 (2003) (Conf.Rep.), reprinted in 2004 U.S.C.C.A.N. 1407,1484-85 (emphasis added).
The legislative history of the National Defense Authorization Act for Fiscal Year 2007, which amended § 2636a to mandate — rather than merely permit — FRV liability, also referenced both service members and industry. Senate Report No. 109-254, at 335 (2006), addressing the delay in implementing FRV liability, states that “[m]ilitary personnel and their families have waited long enough for realization of the ... promise of full replacement value for household goods lost and damaged by movers in connection with permanent changes of station.” The conference report addressing the FRV mandate, however, also expresses concern for small businesses:
[T]he conferees are concerned about potential adverse effects on capable, service-oriented small business movers resulting from the implementation of the full replacement value standard for recovery due to higher costs involved in obtaining liability insurance. The conferees direct the Secretary of Defense to analyze the potential effects of implementing full replacement value on small businesses and, no later than April 1, 2008, to provide a report to the congressional defense committees on these effects and the Secretary’s recom*34mendations for improving small business’s ability to compete for Department of Defense-related moves.
H.R.Rep. No. 110-477, at 889 (2007) (Conf. Rep.).
B. Revisions to Tenders and Tariffs Under the FRV Liability Scheme and Record Communications Between Industry and SDDC Regarding Freight Refund Terms
In most solicitations following the 2008 Congressional mandate to include FRV liability in DOD personal property transportation contracts, SDDC did not delete or revise the freight refund terms that were included in pre-FRV liability solicitations. See, e.g., AR 799-800, 2556, 4148. The International Tenders issued to solicit rate filings were treated differently. They included the new FRV liability terms but removed the freight refund provisions. See, e.g., AR 8510-23 (a 2008 International Tender).
In December 2010, a warehouse in Germany caught fire, destroying shipments of service members’ personal property which had been transported to the warehouse by TSPs, AR 10699, 10706. In reaction to the warehouse fire, SDDC stated its intent to require TSPs who moved the destroyed shipments to refund their freight charges. AR 10699-700. The 2010 International Tender, which governed the international shipments, including those caught in the warehouse fire, did not contain freight refund terms. Nevertheless, SDDC announced freight charges would not be paid. AR 10706. Subsequently, SDDC released the international tender solicitation for 2011, and included the freight refund language. AR 9777.
After SDDC announced that freight charges would not be paid for shipments destroyed in the warehouse fire, representatives from the International Association of Movers (“IAM”) questioned SDDC’s authority and rationale for imposing freight refunds on claims settled at full replacement value. AR 10714,10716-40. To justify the inclusion of the freight refund terms, SDDC relied on the authority granted to it under several statutes and regulations. First, SDDC relied on 49 C.F.R. Part 375, Department of Transportation (“DOT”) regulations that apply to carriers transporting household goods for “individual shippers.” AR 10712, 10716; see 49 C.F.R. §§ 375.707, 709 (freight refund terms). SDDC stated that these provisions of the C.F.R. are “based upon the laws passed by Congress, specifically 49 U.S.C. 721 and 14706.” AR 10716. 49 U.S.C. § 721 sets forth the general administrative powers of the Surface Transportation Board. 49 U.S.C. § 14706 is popularly known as the Carmack Amendment, and governs the liability of carriers engaged in interstate shipping.
In its correspondence with SDDC, IAM asserted that the “imposition of [freight refund terms] by the Department of Defense (DOD) contradicts settled law and commercial practice, but may also exceed the statute which requires Full Replacement Value.” AR 10717. First, IAM stated that the “DOT regulations requiring a refund ... on lost or damaged shipments do not apply to DOD. Those regulations state that they apply only to ‘individual shippers.’” AR 10723 (citing 49 C.F.R. § 375.101). IAM averred that “government bill of lading shippers,” as separately defined under Part 375, are not subject to DOT regulations. AR 10723-24.
IAM additionally stated that “[t]here is a very real dollar difference between the cost to the earner of claims under the old system and under the new full replacement value system.” AR 10725. IAM asserted that, given the increased cost under FRV liability combined with freight refund terms, “few small to medium sized carriers will be financially strong enough to pay claims at full replacement value, including shipping and taxes, and then give up revenue earned on the shipment as well.” AR 10726. IAM also asserted that even if a TSP could afford to enter into contracts under the new scheme, these TSPs would be forced to raise their rates or exit DOD market completely. AR 10726-27.
Finally, IAM stated that the commercial reality faced by the household goods carrier weighed against inclusion of the freight refund terms. AR 10727. In particular, IAM asserted that a TSP will incur the underlying costs to the shipping line or other service providers subcontracted to transport the per*35sonal property. Id. IAM stated that even if there is a claim against these subcontracted carriers, the liability permitted under the subcontracts is often limited, sometimes by law, and shipping charges must still be paid to the underlying carrier by the TSP. Id. IAM claimed that in this case, the TSP “will have to pay the full replacement value claim and any underlying freight charges without receiving revenue from the Government to cover any of those costs,” and concluded that this “result is unfair, unworkable, and commercially unreasonable.” Id.
In addressing these concerns, SDDC maintained its position that the freight refund terms were properly included in the rate solicitations under the Carmack Amendment and 49 C.F.R. Part 375. AR 10716. In a letter to IAM, SDDC stated that “[w]e cannot pay carriers to move items that were simply not moved.” AR 10732. However, SDDC went on to indicate that “[e]learly, if a shipper loses or destroys an item enroute, we would be responsible for payment of the earned freight charges to the point when the loss/destruction occurred.” Id.
After SDDC declined to remove the freight refund terms and prior to the opening of the rate filing period at issue, plaintiffs filed this action on February 2, 2012. Compl. ¶¶ 2, 12. This case was transferred to the undersigned judge on April 9, 2012. Order, ECF No. 18. Briefing is now complete, and oral argument was held on May 29, 2012.
II. STANDARDS OF REVIEW
A. Dismissal for Lack of Standing under RCFC 12(b)(1)
As a threshold matter, the court must establish that it has subject matter jurisdiction over plaintiffs’ claims. PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). The Tucker Act grants this eourt “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract ... or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). When a defendant challenges this court’s jurisdiction under RCFC 12(b)(1), the plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Ch-.1988). In determining jurisdiction, a court must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff. Trusted Integration, 659 F.3d at 1163. Additionally, when a party challenges the jurisdictional facts alleged in the complaint, the court may consider relevant evidence outside the pleadings to resolve the factual dispute. Reynolds, 846 F.2d at 747.
Plaintiffs must have standing to invoke this court’s subject matter jurisdiction. In bid protest cases under § 1491(b), a plaintiff seeking to establish standing must demonstrate that it is an “interested party.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed.Cir.2009). A plaintiff is an interested party if it “ ‘(1) is an actual or prospective bidder and (2) possesses] the requisite direct economic interest.’ ” Id. at 1361 (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed.Cir.2006)). To establish that it has a “direct economic interest,” a plaintiff must demonstrate “prejudice.” Id. at 1361. To demonstrate “prejudice” in a pre-award protest, a plaintiff must allege a “non-trivial competitive injury which can be addressed by judicial relief.” Weeks Marine, 575 F.3d at 1362.6
*36B. Motion for Judgment on the Administrative Record
RCFC 52.1 provides for review based on the administrative record. Under RCFC 52.1, the court determines whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed.Cir.2005).
The Federal Circuit has held that the proper standard to be applied in claims brought under 28 U.S.C. § 1491(b)(1) is provided by the APA, 5 U.S.C. § 706(2)(A) (2006): “a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed.Cir.2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000)). Under this standard, a procurement decision may be set aside if either:
(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure. A court evaluating a challenge on the first ground must determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion. When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.
Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed.Cir.2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (Fed.Cir.2001)) (internal quotation omitted). A court must find an agency decision arbitrary and capricious if the government “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] was so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.-Bir mingham v. United States, 586 F.3d 1372, 1375 (Fed.Cir.2009).
However, “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Instead, the court must determine if the agency “examine^] the relevant data and artieulate[d] a satisfactory explanation for its action,” id., and “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). The court may, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. at 286, 95 S.Ct. 438.
If the court finds that the agency acted without a rational basis or contrary to law, the court must “determine, as a factual matter, if the bid protester was prejudiced by that conduct.” Bannum, 404 F.3d at 1351. This second prejudice determination is based on the same standard as the initial prejudice determination. Jacobs Tech. Inc. v. United States, 100 Fed.Cl. 198, 207 (2011). In pre-award bid protests, a plaintiff must establish prejudice by demonstrating “a nontrivial competitive injury which can be redressed by judicial relief.” Magnum Opus Techs., Inc. v. United States, 94 Fed.Cl. 512, 530-31 (2010) (“Given the nature of a protest brought prior to the award of a contract or issuance of a solicitation, there is no meaningful way to further assess the prejudice to the plaintiff after examination of the merits — if the failure to hold a competition was wrongful or there was a material error in the solicitation, then the plaintiff has been wrongfully deprived of the opportunity to fully and fairly compete, which suffices to establish prejudicial injury on the merits.”); see also Distributed Solutions, Inc. v. United Fed.Cl. 104 Fed.CI. 368, 380 (2012).
*37III. DISCUSSION
A. Plaintiffs Possess Standing Under the Tucker Act
The government first argues that plaintiffs lack standing to bring their claim under the Tucker Act. The government does not dispute that plaintiffs are “actual or prospective bidders” for purposes of standing. Rather, the government argues that, under the “prejudice” part of the standing test, plaintiffs do not sufficiently allege a “non-trivial competitive injury which can be addressed by judicial relief.” Weeks Marine, 575 F.3d at 1361. The inclusion of the freight refund terms, the government argues, impacts all TSPs that lose service member property, not just plaintiffs. Instead, the government argues that the inclusion of the freight refund terms properly disadvantages TSPs whose own performance makes them more likely to lose service member property. The government further contends that even if plaintiffs are disparately impacted by the freight refund terms, disparate impact alone is not enough to establish the prejudice required for standing. Finally, the government argues that plaintiffs offer insufficient proof to demonstrate a competitive injury, and offer only speculative conclusions as to whether they are disparately impacted by the freight refund terms.
Plaintiffs, as small businesses, allege that they are particularly harmed by the impacts of the freight refund terms and FRV liability. In their complaint, plaintiffs allege several competitive injuries that arise from the inclusion of the freight refund terms and general offset provisions in the challenged solicitations. These injuries relate to the negative economic impact on plaintiffs’ costs, revenues, and profit margins, which plaintiffs argue may force them to decline to bid on certain contracts, submit increased rates which would put them at a competitive disadvantage to larger TSPs, or exit the DOD personal property transportation market completely.
Plaintiffs further state that there is a direct link between a TSP’s financial condition and its eligibility to compete for DOD personal property movement contracts. Under SDDC’s service provider qualifications, TSPs must maintain a specific cash and receivables-to-current liabilities ratio, called a “quick ratio,” to be eligible to compete for contracts. Pis.’ Opp. to Def.’s Mot. to Dismiss, Ex. 1 at 13, ECF No. 22; see also DTR, Part TV, App. B at 4. Moreover, in declarations submitted with their reply to the government’s motion to dismiss,7 plaintiffs offer specific examples of how, as small businesses, they are disparately impacted by the inclusion of the freight refund terms alongside FRV liability. Plaintiffs contend that because they are small businesses, they are more “economically vulnerable than other TSP bidders” to the increased costs and risks associated with the freight refund terms, and that the freight refund terms “threaten[ ] the very survival of smaller companies.” Pis.’ Opp. to Def.’s Mot. to Dismiss at 14; see also id., Ex. 2 ¶ 15; Ex. 3 ¶ 16; Ex. 4 ¶¶ 14, 16; Ex. 5 ¶¶ 18-19. In certain situations, plaintiffs argue, inclusion of the freight refund terms may cause certain plaintiffs to go out of business. See id., Ex. 2 ¶ 13; Ex. 3 ¶ 16; Ex. 4 ¶¶ 14-15; Ex. 5 ¶¶ 16-18.
Finally, plaintiffs argue that this pre-award protest is likely the only opportunity plaintiffs have to obtain judicial review and redress of SDDC’s alleged errors in including provisions that may be contrary to law. Plaintiffs contend that the operative awards are bills of lading issued for loads booked with TSPs whose rates are accepted after the May 15, 2012 effective date of the solicitations challenged here. In these circumstances, plaintiffs argue, they need only identify economic harm stemming from the facial defect in the solicitation to establish standing under Weeks Marine, 575 F.3d at 1363 (“[I]n some cases the injury stemming from a fa-*38dally illegal solidtation may in and of itself be enough to establish standing; in such a ease a bidder should not have to wait until the solicitation is applied unfavorably to establish injury.”).
The court finds that plaintiffs’ allegations and declarations demonstrate the requisite competitive interest to establish standing under the standard outlined in Weeks Marine. Plaintiffs have adequately explained how the freight refund terms enforced in conjunction with FRV liability would cause non-trivial competitive injury. Based on plaintiffs’ allegations and their declarations — declarations which the government has not challenged or countered— plaintiffs will experience negative economic impacts because of the inclusion of the freight refund terms, which will, in turn, affect their ability and eligibility to bid on DOD transportation contracts and may remove them from competing in the DOD personal property transportation market altogether. Plaintiffs’ contentions, supported by declarations, that they will be “deprived of the opportunity to compete,” at least for certain lanes and channels, establish the requisite prejudice for standing. See CW Gov’t Travel, Inc. v. United States, 99 Fed.Cl. 666, 673 (2011) (quoting Google v. United States, 95 Fed.Cl. 661, 674 (2011)) (finding that plaintiff established standing where it was deprived of the opportunity to compete). Moreover, regardless of “whether [plaintiffs] are the winning or losing bidder[s],” plaintiffs have established standing because they have a “definite economic stake in the solicitation being can’ied out in accordance with applicable laws and regulations.” Weeks Marine, 575 F.3d at 1362; Distributed Solutions, 104 Fed.Cl. at 380-81 (citing Weeks Marine to find that a “reduced right to compete is sufficient injury”).
In this regal’d, and contrary to the government’s arguments, plaintiffs do more than simply establish a disparate impact on their ability to compete, which distinguishes plaintiffs from the plaintiff in ICP Nw., LLC v. United States, 98 Fed.Cl. 29, 36 (2011). In ICP, the plaintiff challenged a provision in several Forest Service solicitations that allowed those contractors who were placed on a list for the solicited services to refuse subsequent work orders. Id. The plaintiff argued that the right to refuse work orders would cause other bidders to submit improperly low bids, in turn forcing the plaintiff to lower its own rates. Id. The plaintiff then argued, in part, that it possessed standing because it had made substantial investments in equipment necessary to perform the work orders, and that therefore, the challenged solicitations and resulting low bids imposed a disparate impact on it. Id. at 37. The court concluded that “any such impact would not be caused by the solicitation,” but rather by the plaintiffs particular circumstances, and that therefore, the plaintiff lacked standing to challenge that aspect of its claim. Id.
Here, in contrast, plaintiffs do not merely allege that they will be disparately impacted by the challenged terms. Instead, plaintiffs have shown that the terms of the solicitation would cause them to experience non-trivial, negative economic impacts that affect their ability to compete. Plaintiffs’ ability to compete for DOD personal property transportation contracts was materially impacted after SDDC decided to include and enforce freight refund terms along with FRY liability in the challenged solicitations. The government has not successfully rebutted this contention. If plaintiffs succeed in this protest, plaintiffs will be able to compete for certain lanes or channels — contracts from which they will be excluded if they do not succeed. Plaintiffs have thus established the requisite prejudice for standing under 28 U.S.C. § 1491(b)(1).
B. Prudential Standing Does Not Apply, But If It Did, Plaintiffs Possess Prudential Standing
The government further argues in its motion to dismiss that plaintiffs lack standing because they do not show that they have prudential standing under 10 U.S.C. § 2636a. The government asserts that plaintiffs, even if interested parties under the Tucker Act, must have prudential standing for this court to have jurisdiction over their bid protest. Specifically, the government contends that plaintiffs do not possess prudential standing because they cannot show that they are with*39in the “zone of interests” meant to be protected by § 2636a.
To begin, the court agrees with plaintiffs that the concept of prudential standing does not generally apply to bid protests under 28 U.S.C. § 1491(b)(1). As this court held in Santa Barbara Applied Research, Inc. v. United States, the Federal Circuit has rejected less stringent standing requirements in favor of the two-part “interested party” test. 98 Fed.Cl. 536, 544 (2011) (citing Am. Fed. of Gov’t Emps., AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001)); see also MORI Assocs., Inc. v. United States, 102 Fed.Cl. 503, 542 (2011). Having satisfied this test, plaintiffs have established standing.
Furthermore, even if plaintiffs were required to establish prudential standing, the court finds that plaintiffs have established prudential standing under 10 U.S.C. § 2636a. To establish prudential standing, plaintiffs must demonstrate that “the interest sought to be protected by the [plaintiffs] is arguably within the zone of interests to be protected or regulated by the statute” at issue. Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (emphasis added). Section 2636a may have been enacted to primarily benefit service members, but plaintiffs are nonetheless regulated by the statute. Section 2636a and the accompanying DTR govern the liability terms of DOD contracts between plaintiffs and service members, and mandate settlement procedures with which plaintiffs must comply in the event of loss or destruction of personal property.
The government’s argument that plaintiffs are jurisdictionally barred because § 2636a does not specifically mention freight refund terms runs contrary to the Supreme Court’s holding that the “zone of interests” test is “not meant to be especially demanding.” Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). Plaintiffs do not argue that the freight refund provisions, standing alone, are contrary to law. Plaintiffs argue that the government implemented the FRV liability scheme mandated by § 2636a in a way contrary to law when it defined “full replacement value” to include shipping costs, and at the same time required TSPs to refund freight charges. Regardless of whether 10 U.S.C. § 2636a mentions freight refund terms, plaintiffs are entities regulated under the statute, and their injury relates directly to the implementation of the statute. The court therefore alternatively finds that 10 U.S.C. § 2636a provides sufficient grounds for review of plaintiffs’ claim, and plaintiffs have thus satisfied any prudential standing requirement.
C. SDDC’s Inclusion of Freight Refund Terms is Not Supported in the Record and is Contrary to Carmack Amendment Liability Principles
Having found that plaintiffs have standing, the court now turns to the merits of plaintiffs’ protest. Plaintiffs argue that inclusion of the freight refund terms in the challenged solicitations violates three statutes: 10 U.S.C. § 2636a itself; 49 U.S.C. § 14706, the Carmack Amendment; and 5 U.S.C. § 558, a provision of the APA barring sanctions. Plaintiffs also claim that the government’s decision to include freight refund terms over the objection of the TSP industry was irrational because the government relied on the Carmack Amendment — which plaintiffs argue is violated by the freight refund terms— and 49 C.F.R. Part 375 — which plaintiffs argue does not apply to government bill of lading shippers, such as the service members who will become parties to the bill of lading contracts subject to the terms the solicitations.
[16]For the reasons discussed below, the court agrees with relithat SDDC’s reliance on the Carmack Amendment to justify the inclusion of the freight refund terms is contrary to law. The challenged solicitations violate princiAmendment liability principles by going beyond the liability ceiling established by that statute. Moreover, the court agrees with plaintiffs that even if the government has authority to require a TSP to pay damages that go beyond the Carmack Amendment’s liability ceiling, that authority is not absolute — the government may not exact a penalty that goes beyond damages *40sustained as a result of the loss or destruction of service members’ personal property.
Before addressing the parties’ specific arguments, the court first turns to a brief discussion of the Carmack Amendment and 49 C.F.R. Part 375, the DOT regulations governing interstate shipments of household goods.
1. The Carmack Amendment and 49 C.F.R. Part 375.
Both plaintiffs and the government rely on the carrier8 liability limitations embodied in the Carmack Amendment, 49 U.S.C. § 14706. Congress enacted the Carmack Amendment in 1906 to establish uniform federal guidelines designed to remove uncertainty surrounding a carrier’s liability when loss or damage occurs to a shipper’s interstate shipment. Adams Express Co. v. Croninger, 226 U.S. 491, 503-05, 33 S.Ct. 148, 57 L.Ed. 314 (1913). The Carmack Amendment was designed to occupy the field of interstate transportation to avoid the confusion of conflicting state laws, id., and applies to motor carriers only in the interstate transportation context. 49 U.S.C. § 13501(1). Here, the government does not dispute that the Carmack Amendment applies to the interstate shipments covered by the challenged solicitations. See Def.’s Cross-Mot. at 19.9
Since the enactment of the Carmack Amendment, a carrier of an interstate shipment is “liable to the person entitled to recover under the receipt or bill of lading.” 49 U.S.C. § 14706(a)(1). The person entitled to recover can bring a suit for “actual loss or injury to the property caused” by any carrier in the course of the interstate shipment. Id. The Supreme Court has construed actual loss or damage broadly: “The words of the statute are comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination.” Se. Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 81 L.Ed. 20 (1936) (quotation omitted). Courts have accordingly construed “actual loss or damage” under the Carmack Amendment to include damages for delay, lost profits, and reasonably foreseeable consequential damages. Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 931 (7th Cir.2003).
For the shipment of household goods, “actual loss or damage” traditionally meant the depreciated value of the household goods, since most household goods were used goods. Released Rates of Motor Common Carriers of Household Goods (“2001 Released Rates”), 2001 WL 1637941, at *1 (S.T.B. Dec. 18, 2001). Under the depreciated value option, a household goods shipper could either accept a statutorily-prescribed $1.25 per pound liability payment, or declare a higher value by paying a valuation charge. Id. at *2.
However, the Carmack Amendment also permits the Surface Transportation Board (“STB”)10 to establish rates and liability limi*41tations that may deviate from this standard. 49 U.S.C. § 14706(f)(1). Liability requirements under the Carmack Amendment have since been changed by Congress and the STB, pursuant to this authority, for interstate shippers of household goods that provide their services to “individual shippers.”11
Since 2001, household goods carriers offering their services to interstate shippers may offer two liability options. Released Rates of Motor Common Carriers of Household Goods (“2011 Released Rates ”), 2011 WL 192635, at *1-2 (S.T.B. Jan. 19, 2011). The first is a “released rate” option, which values household goods at $0.60 per pound — substantially less than depreciated value — and thus offers a lower shipping rate. Id. To elect the lower, released rate option, the shipper and the earner must follow certain procedures under the Carmack Amendment. See 49 U.S.C. § 14706(f)(3).
The second option, “Full Value Protection,” was first authorized by the STB in 2001 and replaced the old “depreciated value” liability option. 2001 Released Rates, 2001 WL 1637941, at *8. Under the Full Value Protection option, a shipper declares a total value for the goods in the shipment, and in the event of loss or destruction to the shipment, the carrier pays the shipper the “replacement value” of goods comparable to those lost or destroyed, up to the declared value of the shipment. 2011 Released Rates, 2011 WL 192635, at *2. In 2005, Congress amended the Carmack Amendment to make the Full Value Protection option the default liability option for the interstate movement of household goods. Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”), § 4207, Pub.L. No. 109-59 (codified in relevant part at 49 U.S.C. § 14706(f)). Thus, pursuant to SAFETEA-LU, the full protection level for interstate carriers effectively changed from “actual loss or injury” to “replacement value” under Full Value Protection liability. 2011 Released Rates, 2011 WL 192635, at *2; 49 U.S.C. § 14706(f).
The DOT regulations implementing the Carmack Amendment’s liability scheme are found at 49 C.F.R. Part 375. These regulations apply to carriers offering their services to individual shippers for the interstate movement of household goods. 49 C.F.R. § 375.101. The DOT regulations authorize, consistent with the Carmack Amendment, Full Value Protection liability. Id. § 375.201(b). The DOT regulations also include freight refund terms. If a shipment is partially or totally lost or destroyed, the carrier must refund the portion of the freight charges relative to the property lost or destroyed in transit. Id. §§ 375.707, 709.
The court now turns to the parties’ specific arguments. First, the court addresses plaintiffs’ argument that SDDC’s reliance on 49 C.F.R. Part 375 as the basis for the freight refund provisions is not justified. The court then discusses whether the inclusion of the freight refund terms alongside FRV liability in the challenged solicitations violates the Carmack Amendment, based on the history of freight refund terms and Carmack Amendment case law. Finally, the court addresses whether SDDC may require plaintiffs to pay damages that go beyond making the government and the service member whole under the terms of the solicitations.
*422. SDDC’s reliance on 49 C.F.R. Part 375 was unjustified because Part 375 by its terms does not apply to government shippers, does not define “replacement value” to include shipping costs and sales tax at destination, and therefore does not mandate the freight refunds set forth in the solicitations.
In the record before the court, SDDC relied on the Carmack Amendment and 49 C.F.R. Part 375, the DOT regulations governing the “individual shipper” movement of household goods, to justify the inclusion of the solicitations’ freight refund terms. AR 10716. At the outset, plaintiffs claim that any reliance on 49 C.F.R. Part 375 is arbitrary and capricious, because those regulations by their own terms do not apply to “government bill of lading shippers.” See 49 C.F.R. §§ 375.101, 103. The court agrees that the regulations do not apply to government bill of lading shippers.12 However, that error would be harmless if the DOT regulations, pursuant to the Carmack Amendment, similarly provide for a definition of “full replacement value” that includes the cost of shipping, and also authorize freight refunds. See Bowman, 419 U.S. at 286, 95 S.Ct. 438 (holding that a court may “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned”). If SDDC were simply following Part 375, SDDC’s actions would be consistent with existing DOT regulations governing the interstate shipments of pei’sonal property, and therefore justified. AR 2883 (NG-2012), 11060 (IT-2012) (terms of the solicitations stating that liability will be determined in accordance with the Carmack Amendment).
Yet, a careful review of Part 375 reveals that the relevant DOT regulations are not identical to the liability and freight refund terms found in the solicitations. In particular, 49 C.F.R. Part 375 and the Carmack Amendment — in contrast to the DTR and the solicitations — do not expressly define “replacement value” to include the payment of shipping costs and sales tax at destination by the carrier. First, the Carmack Amendment itself does not expressly define “replacement value” under the Full Value Protection option. A House Report accompanying SAFE-TEA-LU, which changed the standard liability to Full Value Protection, only states that Full Value Protection is “defined as the replacement cost in the event of loss or damage up to the pre-declared, total value of the shipment.” H.R.Rep. No. 109-203, at 1011, 2005 U.S.C.C.A.N. 452, 640 (2005) (Conf. Rep.) (emphasis added).
The DOT regulations do not provide a definition for “replacement value” under Full Value Protection liability either. The model consumer language in 49 C.F.R. Part 375 provides for the cost of replacement but does not mention shipping charges or taxes at destination. Rather it states only:
If any article is lost, destroyed, or damaged while in your mover’s custody, your mover will, at its option, either: repair the article to the extent necessary to restore it to the same condition as when it was received by your mover, or pay you for the cost of such repairs; replace the article with an article of like kind; or pay you for the cost of a replacement article at the current market replacement value, regardless of the age of the lost or damaged article.
49 C.F.R. Part 375, App. A.
STB decisions regarding SAFETEA-LU also do not define “replacement value” under Full Value Protection liability. A 2007 STB *43decision states that under SAFETEA-LU, “the standard (or default) cargo liability of a [household goods] carrier is now the replacement value of the goods (for example, the value of a comparable new television to replace a used television that was lost in a household move, rather than the depreciated value of the used television).” Released Rates of Motor Common Carriers of Household Goods, Amendment b to Released Rates Decision MC-999, 2007 WL 1696988, at *1 (S.T.B. June 11, 2007).
Thus, unlike the DTR and the solicitations, the DOT regulations do not expressly define “replacement value” to include shipping charges and sales tax at destination. In such circumstances, SDDC’s reliance on 49 C.F.R. Part 375 was misplaced. Not only is Part 375 not applicable to government shipments, see §§ 49 C.F.R. 375.101, 103; supra, note 12, but even if it were to apply to the movement of service member goods under government bills of lading, the DOT regulations do not expressly authorize freight refunds under the same terms as required by SDDC.
3. The inclusion of freight refund terms alongside FRV liability violates the Carmack Amendment by requiring damages that go beyond the Carmack Amendment’s liability ceiling.
In addition, the court agrees with plaintiffs that, under the Carmack Amendment, freight refunds may not be imposed where a shipper is otherwise made whole by the liability provisions of a bill of lading. The court bases this conclusion on the history of freight refund terms as applied to household goods shippers and well-established cases interpreting the liability limits set by the Carmack Amendment.
a. The history of freight refund terms suggests that freight refunds may not be imposed where the measure of damages includes transportation costs.
The Interstate Commerce Commission (“ICC”), predecessor to the STB, first mandated freight refunds for consumer household goods shipments in 1971. Petition for Declaratory Order — Household Goods Freight Charges, 114 M.C.C. 176 (1971). The ICC ultimately concluded that a household goods earner could not collect freight charges when a household goods shipment is totally lost or destroyed. Id. at 199 (“We conclude that where an interstate household goods shipment is totally destroyed and does not reach its destination, a carrier may not ... collect its lawfully published charges from the shipper inasmuch as the carrier’s obligation to transport to the agreed destination has not been performed.”).
In so holding, the ICC emphasized the differences between household goods shippers and commercial shippers, who ordinarily pay freight charges on lost or destroyed goods. First, the ICC found that household goods shippers are not as sophisticated as commercial shippers, and therefore should be entitled to stricter protections. Id. at 196. Second, the ICC agreed that the ordinary damages awarded to commercial shippers implicitly include freight charges, while the liability options available to household shippers did not. Id. at 194-95. The ICC noted that commercial shippers typically receive damages for lost, destroyed, or damaged goods based on “market value at destination,” into which the commercial shipper factors freight charges and other costs.13 Id. at 181, 195. The ICC found that, unlike commercial shippers, household shippers rarely know the worth of their goods, and cannot spread the risk of loss by reselling their goods at market value. Id. at 195-96. For these reasons, the ICC concluded that household goods shippers should not be obligated to pay freight charges for lost or destroyed household goods where they only receive the “actual loss or value” of their goods (as opposed to the “market value at destination,” which, for commercial shippers, includes freight *44charges) under the Carmack Amendment. Id. at 199.
The ICC codified this conclusion in a 1977 decision, which also set forth a regulation governing partial loss or destruction. Practices of Motor Common Carriers of Household Goods (Collection of Freight Charges on Household Goods Shipments Lost or Destroyed), 126 M.C.C. 250, 285 (1977). There, the ICC, discussing its 1971 decision, reiterated that “it is the duty of the common carrier to deliver the shipment to the destination, that it is the concurrent duty of the shipper to pay the freight charges upon completion of delivery, and that the [market value rule, which applies to commercial shippers who include freight charges in determining damages and requires commercial shippers to pay freight charges on lost or destroyed goods,] should not be applied under these circumstances because household goods are not shipped for resale and are not enhanced in value as a result of such transportation.” Id. at 264, 264 n. 5.
The ICC subsequently amended its rule regarding proportional refunds of freight charges for partial loss or destruction a number of times, but did not change the ultimate conclusion that a household goods carrier may not collect freight charges for lost or destroyed shipments. In response to a 1989 amendment, carrier industry representatives argued again against freight refunds for household goods shippers. Return of Proportional Freight Charges by Motor Carriers of Household Goods, 5 I.C.C.2d 836, 837 (1989). The industry representatives argued, in part, that freight refund provisions should not apply to household goods shipments subject to the then-authorized depreciated value liability limits, because the depreciated value liability settlements effectively included freight charges. Id. However, the ICC rejected this argument: “The [industry’s] statements that ... the payment of claims for lost or destroyed articles also includes consideration of freight charges [is] not self-evident.” Id. at 838.
Taken together, the ICC decisions hold that a household goods shipper must receive a refund of its freight charges because the damages the shipper receives for lost or destroyed goods do not incorporate those freight charges. However, in this case, the court agrees with plaintiffs that the solicitations’ express inclusion of shipping costs at destination in the definition of “full replacement value” obviates that rationale. If household goods shippers are able to recover their shipping costs in their claims for loss or destruction — as they are under the FRV liability terms of the challenged solicitations— the TSP carrier should be able to collect freight charges, as in the commercial context.
b. Under the Carmack Amendment, a shipper may not receive damages above and beyond those that make it whole under the bill of lading.
This conclusion is supported by the law governing Carmack Amendment liability for commercial goods. As noted above, commercial shippers are ordinarily obligated to pay freight charges for lost or destroyed goods because the damages for commercial goods are usually measured by “market value at destination.”14 See Am. Nati Fire, 325 F.3d at 932. However, when damages are measured by a shipper’s costs at origin, rather than market value at destination, freight refunds may be appropriate under the Carmack Amendment, even in the commercial goods context:
*45The reason for including freight in the measure of damages when the shipper’s cost (or the market value at place of shipment) is employed as the starting point is that the Carmack Amendment allows recovery of lost profits under the ordinary measure of damages. When the shipper’s costs are used [as a measure of damages under the Carmack Amendment in the bill of lading], however, the profit is unknown. We can assume, however, that the shipper at least would have been able to recover in the market at destination his freight, taxes, fees and insurance in addition to the price he paid for the commodity. Thus these items can be recovered (or added to the value) when the measure of damages is the cost to the shipper less the value of the damaged goods.
A rule allowing freight to be recovered when the value is determined by the shipper’s cost (or the value at the place of shipment) but not allowing freight to be recovered when value is determined by the market rate if undamaged at destination comports with the Carmack Amendment decisions.
Am. Nat’l Fire, 325 F.3d at 933.15 In other words, where a shipper’s costs at origin are used as a measure of damages, rather than market value at destination, a shipper’s damages do not include freight charges. Id. Therefore, the shipper may be entitled to a refund of the freight charges associated with the lost or destroyed commercial goods. Id. This reasoning is supported by early and modern Carmack Amendment decisions. Id.; see Pa. R.R. Co. v. Olivit Bros., 243 U.S. 574, 586, 37 S.Ct. 468, 61 L.Ed. 908 (1917); Am. Nat’l Fire, 325 F.3d at 933-34; Albion Elevator Co. v. Chi. & N.W. Transp. Co., 254 N.W.2d 6, 18 (Iowa 1977) (“[W]here a shipper, as here, receives only the point of shipment value of the lost commodity rather than its destination value, a measure of damages which permits him to recover freight charges paid on the lost portion of the shipment as compensation for his ‘full actual loss’ is proper.” (emphasis added)); Marjan Int’l Corp. v. V.K. Putman, Inc., No. 92 Civ. 8531, 1993 WL 541204, at *13-14 (S.D.N.Y. Dec. 28, 1993) (“In the usual cases, where the main element of the damages consists of loss or damage to cargo, recovery of freight charges has characteristically been denied in that such an award would make plaintiffs better than whole; the usual reason appears to be that freight charges were included in the invoice price at destination or had otherwise not been paid by the shipper.”).16
These interpretations of carrier liability under the Carmack Amendment demonstrate that the Carmack Amendment, in connection with freight charges, places a ceiling on carrier liability. Under the Car-mack Amendment, a shipper may not recover freight charges if the measure of damages the shipper receives under the chosen liability scheme puts the shipper back in the position he or she would have been in had the carrier successfully completed delivery. See, e.g., Marjan, 1993 WL 541204, at *13 (“The policy underlying the general rule against recovery of freight charges from a common carrier derives from the compensatory function of contract damages.... Such damages ought go no further than to make the shipper whole for the actual loss or injury suffered by reason of the carrier’s breach.”) (citing 11 *46Williston on Contracts § 1338 (3d ed. 1968); Pa. R.R. Co., 243 U.S. at 586, 37 S.Ct. 468). In other words, where the shipper gets the benefit of the transportation — either in the form of successful delivery or damages that include delivery of a replacement item at destination — the carrier is entitled to retain its freight charges. Am. Nat’l Fire, 325 F.3d at 932 (quoting The Oneida, 128 F. 687, 692 (2d Cir.1904) (Wallace, J. concurring)).
The pai’ties do not dispute that under the Carmack Amendment, a shipper of household goods may choose to allow a carrier to limit its liability for lost, destroyed, or damaged goods in the bill of lading, and thus pay lower rates. 49 U.S.C. § 14706(f); see Part III. C.l, swpra. However, the court agrees with plaintiffs that the shipper may not seek additional damages under the Carmack Amendment that would make the shipper more than whole under the contract,
c. The freight refund terms in the challenged solicitations, when implemented alongside FRV liability, violate the Carmack Amendment’s carrier liability ceiling.
Applying this principle to the case at hand, SDDC’s implementation of the FRV mandate alongside the freight refund terns goes too far. In this ease, the FRV liability terms in the DTR and the solicitations expressly incorporate shipping costs in the “full replacement value” that a service member is entitled to recover. DTR, Part IV, App. G, Attach. G6, § B.3.g; AR 2883-85 (NG-2012), 11060-61 (IT-2012). Yet, if freight charges are included in the measure of damages, then the freight refund terms improperly convey a benefit on the shipper that exceeds the Car-mack Amendment’s liability ceiling. See Am. Nat’l Fire, 325 F.3d at 932 (finding that under the “basic rule of damages for cases involving the carnage of goods” where “the shipper thus gets the benefit of the transportation, the carrier should not lose the freight”) (quoting The Oneida, 128 F. at 692 (Wallace, J., concurring)); Marjan, 1993 WL 541204, at *13.
The court thus agrees with plaintiffs that the freight refund provisions, when implemented alongside the FRV liability scheme, provide more than full compensation to the government and the service member because they require that a TSP pay for successful delivery of a replacement item and also forgo its own freight charges. Therefore, the court holds that the use of freight refund terms in conjunction with FRV liability violates the Carmack Amendment, and is contrary to law. Thus, to the extent SDDC relies on the Car-mack Amendment to justify the inclusion of the freight refund terms, see AR 10716, this reliance is not supported.
In response to plaintiffs’ challenges to its reliance in the record on the Carmack Amendment and 49 C.F.R. Part 375, the government now asserts that 37 U.S.C. § 476 — governing household goods transport for service members — delegates broad authority to DOD to regulate the movement of service members’ personal property. This broad delegation, the government argues, authorizes the government to go beyond the Carmack Amendment’s liability ceiling to include the subject freight refund terms. The government further interprets the Carmack Amendment itself as allowing the government to include any terms it wants in the government bills of lading controlling DOD personal property moves.
At the outset, the court notes that SDDC did not rely on the authority delegated to DOD under 37 U.S.C. § 476 as a justification for its actions. Section 476 is not mentioned anywhere in the administrative record as a justification for freight refund terms. However, even if the government were not constrained by the Carmack Amendment’s liability ceiling, the government’s authority to define damages in its contracts is not boundless. It is well-settled that “[i]t is customary, where Congress has not adopted a different standard, to apply to the construction of government contracts the principles of general contract law.” Fomby-Denson v. Dep’t of Army, 247 F.3d 1366, 1373 (Fed.Cir.2001) (citing Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947)). As discussed above, courts interpreting the Carmack Amendment have held that the Carmack Amendment’s liability ceiling is grounded in the basic contract law principle that damages are compensatory in nature, and that therefore, freight refund *47terms may not be imposed when they would make the shipper more than whole. See Am. Nat’l Fire, 325 F.3d at 932 (quoting The Oneida, 128 F. at 692 (Wallace, J., concurring)); Marjan, 1993 WL 541204, at *13.
In this ease, the standard form government bill of lading governing household goods shipments describes the contract benefits expected of the TSP: to “forward[ ] to destination ... [a service member’s (the consignee’s) property], there to be delivered in good order and condition to said consignee.” DTR Part IV § 413, Figure 413-1, Form SF 1203, Block 16. The court agrees with plaintiffs that the challenged solicitations’ requirement that “full replacement value” include shipping costs to destination provides this benefit. To require TSPs to forgo their freight charges on top of this requirement goes beyond “the compensatory function of contract damages.” Marjan, 1993 WL 541204, at *13; see also Am. Nat’l Fire, 325 F.3d at 935 (“Although the shipper can recover all damages resulting from the carrier’s negligence, the shipper cannot recover more than the injury suffered.” (quotations omitted)).
To further justify the freight refund terms as an enforceable measure of damages, the government argues that the freight refund terms do not go beyond the compensatory function of damages because the government’s interests under the bill of lading stand separate and apart from the service members’ interest in receiving their property at their destination duty stations. The government argues that, for its part, the freight refund terms are necessary to “ensure that TSPs are properly incentivized to deliver service member property.” Def.’s Cross-Mot. at 22. However, the court agrees with plaintiffs that damages may not be used to solely ineentivize performance.17 While “[a]ll provisions for damages are, of course, deterrents of default,” where damage provisions are “included not to make a fair estimate of damages to be suffered but to serve only as a spur to performance, ... courts do not give their imprimatur to such arrangements.” Priebe, 332 U.S. at 413, 68 S.Ct. 123; JMNI, Inc. v. United States, 4 Cl.Ct. 310, 315 (1984); Ogden Dev. Corp. v. Fed. Ins. Co., 508 F.2d 583, 586 (2d Cir.1974) (interpreting a damages provision in a bid request as amounting to a penalty); see also DJ Mfg. Corp. v. United States, 86 F.3d 1130, 1136 (Fed.Cir.1996) (holding that damages provisions may not spur performance when the damages do not serve a compensatory function). The government’s argument that the freight refund terms may be included in the solicitations to “ineentivize” performance, rather than to provide compensation for damages suffered under the contract, is thus contrary to well-settled contract law.
In sum, the court concludes that the inclusion of the freight refund terms alongside FRV liability in IT-2012 and NG-2012 violate the liability principles established by the Carmack Amendment. Under the Carmack Amendment, as well as more general principles of contract law, a household goods shipper may not require a earner to refund its freight charges if the shipper’s damages for lost or destroyed goods include shipping costs for the replaced goods. Yet, the challenged solicitations do just that by including the freight refund provisions alongside the mandated FRV liability, which defines “full replacement value” to include shipping costs and sales tax at destination. This impermis-sibly requires the carrier to forgo its freight charges even though it has placed the government and the service member in the position they would have been in had the contract been successfully performed. For these reasons, the terms of the solicitation are contrary to law.18
*48D. Plaintiffs Have Established Prejudice
Having determined that the inclusion of the freight refund terms in IT-2012 and NG-2012 violate the Carmack Amendment and that SDDC’s reliance on 49 C.F.R. Part 375 is not justified, the court must determine whether plaintiffs have been prejudiced by SDDC’s actions. Given the nature of a pre-award protest, courts have concluded that “there is no meaningful way to further assess the prejudice to the plaintiff after examination of the merits — if the failure to hold a competition was wrongful or there was a material error in the solicitation, then the plaintiff has been wrongfully deprived of the opportunity to fully and fairly compete, which suffices to establish prejudicial injury on the merits.” Magnum Opus, 94 Fed.Cl. at 531; see also Distributed Solutions, Inc. v. United States, 104 Fed.Cl. 368, 380-81, 383-84 (2012) (“There is no meaningful way to assess prejudice if the [government’s actions were] wrongful or not adequately supported. Plaintiffs were wrongfully deprived of the opportunity to fully and fairly compete, which suffices to establish prejudice on the merits.”). Having already determined that plaintiffs have established a non-trivial competitive injury based on the negative economic impacts caused by the freight refund terms that have deprived, or at least lessened, plaintiffs’ ability to compete in the challenged solicitations for certain lanes and channels, the court concludes that, on the merits, plaintiffs were prejudiced by SDDC’s inclusion of the freight refund terms. See Part III.A, supra; Distributed Solutions, 104 Fed.Cl. at 380-81 (citing Weeks Marine to hold that a “reduced right to compete” is sufficient injury).
E. Declaratory and Injunctive Relief is Proper in this Case
Plaintiffs request that the court enter an order declaring that SDDC’s inclusion of the freight refund terms in the challenged solicitations is arbitrary, capricious, irrational, an abuse of discretion, and contrary to law and Congressional intent. Plaintiffs also request a permanent injunction to require the government to amend the IT-2012 and NG-2012 rate solicitations by eliminating the freight refund terms and to refrain from awarding contracts for the transportation of service members’ personal property that incorporate the freight refund terms. Pis.’ Mot. at 38-39. At argument plaintiffs also requested that the government be enjoined from enforcing the invalid terms in those solicitations for any contracts that have already been awarded. See A.T. & T. v. United States, 177 F.3d 1368, 1376 (Fed.Cir.1999) (en banc) (“When a contract or a provision thereof is in violation of law but has been fully performed, the courts have variously sustained the contract, reformed it to correct the illegal teim, or allowed recovery under an implied contract theory; the courts have not, however, simply declared the contract void ab initio.”).
The court has considerable discretion in determining whether to award declaratory and injunctive relief in a bid protest. See 28 U.S.C. § 1491(b)(2) (“To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.”); see also PGBA, LLC v. United States, 389 F.3d 1219, 1226 (Fed.Cir.2004) (acknowledging the court’s “equitable discretion in deciding whether injunctive relief is appropriate”). In deciding whether a permanent injunction should issue, a court considers: (1) whether the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds in-junctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1036-37 (Fed.Cir.2009). Plaintiffs have satisfied the first criterion by demonstrating that they were prejudiced by SDDC’s inclusion of the freight refund terms in violation of the Carmack Amendment and SDDC’s unreasonable reliance on inapplicable regulations to justify its decision in the record. See supra Part III.C, D.
Under the second criterion, plaintiffs contend that if an injunction is not issued, then plaintiffs will suffer irreparable harm *49because, unless the court enjoins such action, plaintiffs may not be eligible for award or will experience reduced ability to compete for certain lanes and channels. See, e.g., Pis.’ Opp. to Def.’s Mot. to Dismiss, Ex. 2 ¶¶ 13, 15. Irreparable harm is established by a lost opportunity to fairly compete. See, e.g., HP Enter. Servs., LLC v. United States, 104 Fed.Cl. 230, 245 (2012) (citing several eases); Magnum Opus, 94 Fed.Cl. at 544 (“A lost opportunity to compete in a fair competitive bidding process for a contract is sufficient to demonstrate irreparable harm.”) (citations omitted). To the extent that plaintiffs are eligible for certain lanes and channels, plaintiffs also argue that they will experience severely decreased or non-existent profit margins based on the freight refund terms, and that they may go out of business altogether because of the increased costs associated with the freight refund terms. See id., Ex. 2 ¶¶ 13,15; Ex. 3 ¶¶ 10,16; Ex. 4 ¶¶ 10, 14; Ex 5 ¶¶ 11,16. The court has repeatedly held that “the loss of potential profits” from a government contract constitutes irreparable harm. See e.g., Furniture by Thurston v. United States, 103 Fed.Cl. 505, 520 (2012) (citing BayFirst Solutions, LLC v. United States, 102 Fed.Cl. 677, 696 (2012)); MORI Assocs., 102 Fed.Cl. at 552-53. The court has also held that where a plaintiff is unlikely to remain in business absent an injunction, see Pis.’ Opp. to Def.’s Mot. to Dismiss, Ex. 2 ¶ 13, a plaintiff has shown irreparable harm. Asia Pac. Airlines v. United States, 68 Fed. Cl. 8, 26 (2005). Therefore, the court agrees that plaintiffs will suffer irreparable harm if an injunction does not issue.
As to the third criterion, the government argues that the hardships weigh in its favor because it will suffer harm by “losing its longstanding potential remedy of collecting [freight refunds.]” Def.’s Cross-Mot. at 35. However, as discussed above, the court finds that the FRV liability scheme serves the same purpose of the freight refund terms by requiring that “full replacement value” include shipping costs to a service member’s destination. For this reason, plaintiffs effectively argue that the balance of hardships favors plaintiffs because the service members are not harmed by enjoining the government from including or enforcing the illegal terms in the solicitations. The court finds the hardships to plaintiffs of not correcting the solicitation exceed the hardships to the government.
With regard to the public interest, it is well-settled that there is a public interest in remedying violations of law. See Magnum Opus, 94 Fed.Cl. at 551. However, not every violation of law warrants correction through an injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (holding that a court has discretion to decline a request for injunction even where there is a conceded violation of law.); PGBA, LLC, 389 F.3d at 1226 (holding that an injunction is not automatic under the Tucker Act in the event of an unlawful contract award). Here, given that the effective date for the terms established under the solicitation has passed, and that plaintiffs did not seek any interim injunctive relief, the court is mindful that certain moves may have been scheduled or even completed under the solicitations in question and that several more may be ongoing. The public interest in ensuring that service member moves continue without disruption must also be considered.
In this connection, the court must tailor an injunction that will not disrupt ongoing or future moves. See Magnum Opus, 94 Fed. Cl. at 551 (tailoring injunctive relief to serve the public interest). To this end, the court concludes that the public interest is best served by imposing an injunction that will allow the challenged rate solicitations to remain in effect but will bar the government from either including the illegal terms in any government bills of lading issued in the future or from enforcing the illegal terms in issued bills of lading. The government is of course free to conduct a new solicitation. However, the court does not wish to disrupt any service member moves, and by eliminating the offending language, plaintiffs’ concerns based on their competitive injuries have also been eliminated.
For all of these reasons, the court concludes that the above-described injunctive relief, in addition to declaratory relief, is proper in this ease.
*50IV. CONCLUSION
In sum, the court holds that plaintiffs have standing to bring their protest. The government’s motion to dismiss is thus DENIED. On the merits, the court holds that the government incorrectly relies on 49 C.F.R. Part 375 to justify the inclusion of the freight refund terms along with “full replacement value” liability in the record. Moreover, the use of the freight refund terms in conjunction with “full replacement value” liability violates the liability ceiling established by the Carmack Amendment, and is thus contrary to law. Plaintiffs’ motion for judgment on the administrative record is therefore GRANTED. The government’s cross-motion for judgment on the administrative record is DENIED. The court hereby DECLARES SDDC’s inclusion of the current freight refund provisions in IT-2012 and NG-2012, at IT-2012 Item 402(a) and (b) and NG-2012 Item 46A(1) and (2), violates the liability principles established in the Carmack Amendment and is therefore contrary to law. The court permanently ENJOINS the government from including or enforcing the above-described freight refund provisions in the bills of lading subject to the solicitations to the extent that they require a TSP to both pay “full replacement value” under FRV liability, including shipping costs, and at the same time forgo the collection of freight charges.
The Clerk shall enter judgment in favor of plaintiffs for the declaratory and injunctive relief described above.
IT IS SO ORDERED.
. The freight refund terms do not apply to "damaged” items. DOD cannot seek freight refunds if an item is only damaged — the item must be lost or destroyed. Administrative Record ("AR”) 11072-73; AR 2909-10. For items that are damaged but not destroyed, the TSP will either repair the items or pay the service member for the cost of those repairs. AR 11060; AR 2884.
. Section 2636a(a) provides: "The Secretary of Defense shall include in a contract for the transportation at Government expense of baggage and household effects for members of the armed forces or civilian employees of the Department of Defense (or both) a clause that requires the carrier under the contract to pay the full replacement value for loss or damage to the baggage or household effects transported under the contract.” 10 U.S.C. § 2636a(a).
.The full text of § 2636a(b) reads: “In the case of a loss or damage of baggage or household effects transported under a contract with a carrier that includes a clause described in subsection (a), the amount equal to the full replacement value for the baggage or household effects shall be deducted from the amount owed by the United States to the carrier under the contract upon a failure of the carrier to settle a claim for such loss or total damage within a reasonable time. The amount so deducted shall be remitted to the *30claimant, notwithstanding section 2636 of this title.”
. Section 476 states in relevant part: "[I]n connection with a change of temporary or permanent station, a member is entitled to transportation (including packing, crating, drayage, temporary storage, and unpacking) of baggage and household effects."
. Although the processing of claims under FRV liability is governed by the DTR, the solicitations also reference other liability regulations in the freight refund terms. NG-2012 states that claims for partially lost or destroyed items will be disposed of under 49 C.F.R. Part 375, which governs interstate shipments of household goods for individual consumers. AR 2909-10. IT-2012 states that claims for partially lost or destroyed shipments will be disposed of under 49 C.F.R. § 1005, which generally governs the claims processing for lost or damaged items transported in interstate and foreign commerce. AR 11072-73.
. In certain pre-award cases, proposals have been submitted and evaluated such that prejudice can be assessed using a more stringent standard. See, e.g., Med. Dev. Int'l, Inc. v. United States, 89 Fed.Cl. 691, 701 (2009) ("[B]ecause this post-competitive range challenge to the competitive range determination is sufficiently analogous to a post-award challenge to award, the 'substantial chance’ test is the appropriate standard under which to evaluate plaintiff's claim.”); see also DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 661 n. 10 (2010); Orion Tech., Inc. v. United States, 102 Fed.Cl. 218, 227-28 (2011). The government at oral argument suggested that the court should evaluate standing under the post-award "substantial chance” standard, because several plaintiffs have since received awards under the challenged solicitations. *36Since this issue was raised for the first time at oral argument, the court declines to consider it. See, e.g., Brandt v. United Fed.Cl. 102 Fed.CI. 72, 77 n. 4(2011).
. In ruling on motions for judgment on the administrative record, the "focus of judicial review of agency action remains the administrative record, which should be supplemented only if the existing record is insufficient to permit meaningful review.” Axiom Res. Mgmt., 564 F.3d at 1381. The court therefore considers this information only in connection with jurisdiction and injunctive relief. Reynolds, 846 F.2d at 747; AshBritt, Inc. v. United States, 87 Fed.Cl. 344, 366-67 (2009).
. As noted above, "carrier” is a general term for a TSP. "Shipper” refers to a person or entity using a carrier's service for shipment.
. Under the DTR and the challenged solicitations, FRV liability for both domestic and international shipments "must be determined [in accordance with] the Carmack Amendment to the Interstate Commerce Act, (Title 49, United States Code, Section 14706, Liability of Carriers Under Receipts and Bills of Lading) unless a specific provision ... establishes a different rule or procedure.” DTR, Part IV, App. G, Attach. G6, § B.2.a. As discussed in detail below, the Car-mack Amendment and its implementing DOT regulations, which apply to individual consumer shippers, mandate slightly different liability terms than the DTR. However, contrary to the government’s argument, the court does not interpret this provision as allowing the government to impose increased damages on TSPs that go beyond what is permissible under the Carmack Amendment.
. The ICC Termination Act of 1995, 49 U.S.C. § 10501 et seq., abolished the Interstate Commerce Commission ("ICC”), which previously had jurisdiction over the commercial activities of household goods motor carriers. Its functions relating to household goods carriers were split between the STB and the Secretary of the Department of Transportation. The STB was given jurisdiction over most rate regulation, while the Secretary was given jurisdiction over consumer protection matters, which the Secretary delegated to the Federal Motor Carrier Safety Administration. See Transportation of Household Goods in Interstate Commerce; Consumer Protection Regulations: Released Rates of Motor Carriers of Household Goods, 77 Fed.Reg. 25,371, 25,371 (Apr. 30, 2012) (to be codified at 49 C.F.R. Part 375).
. The shipment of household goods by individual consumers is governed in part by the regulations found in 49 C.F.R. Part 375. A household goods motor carrier must follow Part 375’s regulations when offering its services to "individual shippers” in interstate commerce. 49 C.F.R. § 375.101. "Individual shipper" under Part 375 is defined as:
any person who—
(1) Is the shipper, consignor, or consignee of a household goods shipment;
(2) Is identified as the shipper, consignor, or consignee on the face of the bill of lading;
(3) Owns the goods being transported; and
(4) Pays his or her own tariff transportation charges.
49 C.F.R. § 375.103. A "government bill of lading shipper” is defined separately in Part 375 as "any person whose property is transported under the terms and conditions of a government bill of lading issued by any department or agency of the Federal government to the carrier responsible for the transportation of the shipment.” Id.
. As noted above, by its own terms, 49 C.F.R. Part 375 only applies to "individual shippers." Id. § 375.101. "Individual shipper” is defined by the regulations as a shipper who "[p]ays his or her own tariff transportation charges.” Id. § 375.103. 49 C.F.R. § 375.103 also separately defines "government bill of lading shipper” as "any person whose property is transported under the terms and conditions of a government bill of lading issued by any department or agency of the Federal government to the carrier responsible for the transportation of the shipment.” The government does not address plaintiffs' objection that Part 375 does not apply to government bill of lading shippers. Instead, the government argues that the government "does not rely on 49 C.F.R. Part 375 as its basis to collect” freight refunds. Def.’s Cross-Mot. at 33. Thus, the court agrees with plaintiffs that the regulations in 49 C.F.R. Part 375 do not apply to government bill of lading shippers who will be parties to the bills of lading governed by the terms of the challenged solicitations.
. This interpretation is confirmed in the early case law pertaining to the shipment of commercial goods under the Carmack Amendment. See Am. Nat'l Fire, 325 F.3d at 932 (reviewing early case law and finding that commercial shippers are obligated to pay freight charges for lost or destroyed goods because the measure of damages under the Carmack Amendment for commercial goods is the market value at destination, which includes "the price of the freight, as well as all necessary costs to the shipper such as insurance and taxes”).
. The court notes that under DOT regulations governing individual shippers, "replacement value” is defined as "current market replacement value.” 49 C.F.R. Part 375, App. A. The court is careful to distinguish between "market replacement value" in the household goods context and "market value at destination" in the commercial context. As noted above, a commercial shipper expects the commercial goods it ships to be worth more at destination, as measured by the "market value at destination.” This measure of damages includes “the price of the freight,” and therefore, by selling its goods at that price or receiving that measure of damages, the commercial shipper receives the benefit of the transportation of its goods. Am. Nat’l Fire, 325 F.3d at 932. By contrast, in the household goods context, a household goods shipper does not expect to resell its goods; when the household goods shipper receives "market replacement value," the household goods shipper is not making a profit on his or her goods. Therefore, unlike the commercial shipper, the household goods shipper is not implicitly receiving the benefit of the transportation by receiving the market replacement value.
. In some unique circumstances in the commercial goods context, freight charges may also be recovered if the entire shipment is damaged in a way that is not obvious upon delivery, and that subsequently makes the entire shipment commercially useless. See Marquette Cement Mfg. Co. v. Louisville & Nashville R.R. Co., 406 F.2d 731, 731-32 (6th Cir.1969); Contempo Metal Furniture Co. of Cal. v. E. Tex. Motor Freight Lines, 661 F.2d 761, 764 (9th Cir.1981).
. Another measure commonly used for the loss or destruction of commercial goods is the replacement cost of those goods when the shipper is able to timely purchase replacements and then sells those replacements. In those circumstances, the shipper can recover the costs of freight by selling the replacements at market value, is made whole when the carrier pays for the replacement costs, and must therefore pay the freight charges to the carrier. Am. Nat’l Fire, 325 F.3d at 935 n. 7. However, as mentioned in note 14, supra, unlike commercial goods shippers who may resell their replacements and recover freight charges, household goods shippers do not typically resell their replacement household goods for a profit that incorporates freight charges. See Petition for Declaratory Order— Household Goods Freight Charges, 114 M.C.C. at 182.
. The government argues in its briefs that a TSP shipping low-valued household goods may simply elect not to ship the goods and instead pay for the replacement costs. Def.'s Cross-Mot. at 22. However, there is nothing in the record to support this view, and where, as here, the TSP must pay full replacement value up to $50,000, there is no basis to conclude that the government's concern is correct.
. Because the court finds that the freight refund terms violate the Carmack Amendment and that SDDC’s reliance on 49 C.F.R. Part 375 is not supported, the court does not address plaintiffs’ alternative arguments that inclusion of the freight refund requirement also violates 10 U.S.C. § 2636a and 5 U.S.C. § 558. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218302/ | OPINION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
WHEELER, Judge.
This case arises from the Government's bailout of American International Group, Inc. (“AIG”) in September 2008 as AIG faced a liquidity crisis. At that time, Plaintiff, Starr International Company, Inc. (“Starr”) was one of the largest shareholders of AIG common stock. Starr alleges that rather than providing the liquidity support it offered to comparable financial institutions, Defendant (“the Government”)1 exploited AIG’s vulnerable financial position by becoming a controlling lender and controlling shareholder of AIG in September 2008. According to Starr, the Government took control of AIG so that it could use the corporation and its assets to provide a “backdoor bailout” to other financial institutions. In so doing, Starr alleges that the Government took AIG’s property, including 562,868,096 shares of AIG common stock, without due process or just compensation.
On November 21, 2011, Starr filed a complaint in this Court against the United States, as well as a complaint in the U.S. District Court for the Southern District of New York against the Federal Reserve Bank of New York (“FRBNY”). See l:ll-cv-08422 (PAE). Starr subsequently filed an amended complaint in this Court on January 31, 2012, alleging violations of the Due Process, Equal Protection, and Takings Clauses of the United States Constitution, as well as an illegal exaction claim.2 Starr asserts allegations of coercion, misrepresentation, and discrimination in support of its constitutional and illegal exaction claims, but not as freestanding tort allegations. Stan seeks damages from the Government of at least $25 billion based upon the alleged market value of the 562,868,096 shares of AIG common stock as of January 14, 2011, the date on which the Government ultimately received the shares.
Starr brings its claims individually and on behalf of a class of others similarly situated, pursuant to Rule of the Court (“RCFC”) 23, and derivatively on behalf of AIG, pursuant to RCFC 23.1. Starr is a privately held Panama corporation, which is, and was at all relevant times, a shareholder of AIG common stock. AIG is a Delaware corporation. In an order dated February 10, 2012, the Court joined Nominal Defendant, AIG as a necessary party pursuant to RCFC 19(a).3 See Starr Int’l Co. v. United States, 103 Fed.Cl. 287 (2012).
On March 1, 2012, counsel for the Government filed a motion pursuant to RCFC 12(b)(1) and 12(b)(6), requesting the Court to dismiss Starr’s Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Counsel for AIG and Starr filed briefs in *55response on March 26, 2012 and March 29, 2012, respectively, and counsel for the Government filed a reply on April 26, 2012. The Court held oral argument on the Government’s motion to dismiss on June 1, 2012 at the National Courts Building in Washington, DC.4
After considering the parties’ filings and oral presentations, the Court grants in part and denies in part the Government’s motion to dismiss. The Court grants the Government’s RCFC 12(b)(1) motion as to: (i) any Due Process claims not characterized as illegal exactions; and (ii) any Equal Protection claims. For the time being, the Court defers the issue of whether Starr adequately pled its demand on AIG’s board or the futility of such a demand, as required by RCFC 23.1. The Court denies the remainder of the Government’s motion challenging subject matter jurisdiction. The Court grants the Government’s RCFC 12(b)(6) motion as to: (i) Starr’s takings claim based on the Government’s conversion of its preferred stock to common stock, insofar as Starr alleges the taking of the same equity interest more than once; and (ii) Starr’s use of the rough proportionality test articulated in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The Court denies the Government’s RCFC 12(b)(6) motion in all other respects.
FACTUAL BACKGROUND
The Government actions at issue arose because AIG found itself in a liquidity crisis in the summer of 2008. To understand the cause of AIG’s liquidity issues — and the Government’s alleged contribution to those issues — the Court provides background regarding AIG’s business related to derivatives, and, in particular, credit default swaps (“CDSs”). The following facts, including the background on AIG’s CDS business, are drawn from Starr’s Complaint. For purposes of this motion to dismiss, the Court accepts as true all of the allegations in Starr’s Complaint.
I. AIG’s CDS Business
Starting in the 1980s, a wholly-owned subsidiary of AIG, AIG Financial Products (“AIGFP”) began entering into contracts called derivatives, whereby one party in effect paid a fee to the other party to take on the risk of a business transaction. In 1998, AIGFP expanded this business to include an early form of what has become known as a “credit default swap.” A CDS is a contract that functions like an insurance policy for debt securities instruments. In exchange for payments over time by a client, or “counter-party,” the pai’ty writing the CDS is obligated to pay the counterparty the par value of the debt instrument in the event the instrument defaults. The party writing the CDS then succeeds to the counterparty’s interest in the debt instrument.
The securities referenced by the CDSs written by AIGFP included collateralized debt obligations (“CDOs”). A CDO is a complex investment product typically backed by a pool of fixed-income assets. The collateral backing of a CDO can consist of various types of assets, including asset-backed securities (“ABSs”). Residential mortgage-backed securities were a common type of ABS used to form CDOs. In December 2005, AIGFP executives determined that writing CDSs on CDOs backed by subprime mortgage debt was too risky, and AIGFP stopped writing such CDSs; however, the CDSs AIGFP had already written remained on its books.
In writing CDSs referencing CDOs, AIGFP took on two types of risk: credit risk and collateral risk. If any CDO defaulted, i.e., could no longer meet its obligation to pay interest to holders of the securities, AIG was responsible for paying the remainder of the CDO’s obligation. This was the credit risk. In some cases, AIG was required to post collateral in connection with a CDS as an assurance that it would be able to perform its obligation in the event of a default. Many of AIGFP’s CDS contracts contained provisions *56requiring AIGFP to post cash collateral if AIGFP’s credit rating fell or if the valuation of the underlying CDO fell below a certain threshold. This was the collateral risk.
II. AIG’s Liquidity Issues In 2008 And The Government’s Response
Beginning in 2007, AIGFP’s CDS counter-parties started to claim that the value of the underlying CDOs was falling precipitously and to make increasingly large collateral calls on AIGFP. Those calls increased in the spring and summer of 2008. At the same time, many of AIG’s assets were relatively illiquid and difficult to sell quickly. Due to the confluence of increased collateral calls and AIG’s inability to sell certain assets, AIG faced a “liquidity squeeze” beginning in July 2008 and continuing into September 2008. Compl. ¶ 40. The following is the account, as alleged by Starr, of the Government’s discriminatory response to AIG’s financial difficulties.
To address its liquidity issues, Starr “repeatedly” sought access to the Federal Reserve’s discount window.5 Id. ¶42. While the Government provided such access to other domestic and foreign institutions, it withheld access to the discount window, as well as other forms of liquidity assistance, from AIG. Over the weekend of September 13-14, 2008, in addition to continuing to seek access to the discount window, AIG attempted to identify a private-sector solution to its liquidity issues. During that time, the Government “discouraged” non-U. S. investors from participating in a private-sector solution to AIG’s liquidity needs. Id. ¶ 49.
On September 15, 2008, Lehman Brothers Holdings Inc. filed for bankruptcy. That same day, the Government brokered talks among a consortium of banks in an attempt to arrange private financing for AIG. Those talks ultimately failed. Later that afternoon, the three largest rating agencies, Moody’s, S & P, and Fitch Ratings Services, downgraded AIG’s long-term credit rating. At that point, AIG faced possible bankruptcy as it would no longer have liquidity sufficient to meet the cash collateral demands of AIGFP’s counterparties.
Starr claims that by engaging in the discriminatory treatment recounted above, the Government contributed to AIG’s financial difficulties. According to Stan-, the Government interfered with AIG’s ability to raise capital and contributed to the decision to downgrade AIG’s credit rating by denying AIG access to financial assistance given to other institutions and “insisting inaccurately” that it would not provide any assistance to AIG. Id. ¶ 53. The Government’s actions and inaction also maximized the leverage of the private-sector consortium, putting the banks in a position to demand “oppressive terms” that the Government itself would later demand from AIG. Id. Two of the banks in the consortium had “severe conflicts of interest,” as they would be among the largest beneficiaries of the Government’s eventual bailout of AIG. Id
Moreover, Starr alleges that the Government used AIG’s financial difficulties to “coerce” it to agree to a government takeover of the corporation, thereby allowing the Government to use the corporation and its assets to bail out other financial institutions. Compl. ¶ 54. As explained below, Starr maintains that the Government takeover commenced in September 2008 when the Government took control of AIG; continued in June 2009 when the Government circumvented shareholder rights; and culminated in January 2011 when the Government acquired over 90% of AIG’s common stock, of which 562,868,096 shares were taken without just compensation.
III. September 2008: The Loan Transaction Between The FRBNY And AIG
A. The Term Sheet
Pursuant to its authority under Section 13(3) of the Federal Reserve Act (“FRA”) (hereinafter “Section 13(3)”), Pub.L. No. 63-43, § 13(3) (1913) (codified as amended at 12 U.S.C. § 343 (2006)), the Government offered AIG access to the discount window on specific terms provided in a “term sheet.” Compl. *57¶ 55(a). The offer included the following terms: “(i) an FRBNY credit facility to AIG of $85 billion secured by all of AIG’s assets ... [with] an initial annual cost to AIG of approximately 14.5% per annum, (ii) a requirement that the Government be given control of AIG as controlling lender and controlling shareholder, and (iii) a promise that the Government would receive a nearly 80% equity stake in AIG.” Id. According to Starr, the Government’s offer was based on a term sheet formulated by the private-sector consortium the Government had assembled. Id. ¶ 55(b).
After delivering the term sheet to AIG, Starr claims the Government “falsely advised” AIG’s CEO that it would be the only offer AIG would get, “pressured” AIG’s Board of Directors (the “AIG board”) to make a decision within hours, and “falsely and irresponsibly representad] that it was willing to risk destroying the global economy” if AIG did not accept the Government’s demands. Id. ¶¶ 58, 58(a). According to Starr, AIG’s board accepted the Government’s terms before the opening of the next trading day, September 17, 2008. Id. ¶¶ 58(a), 59. Aso on September 17, 2008, Stan’ submits that the Government fired AIG’s CEO and replaced him with Edward M. Liddy, who acted at all relevant times as if he were under the control of the FRBNY and the Government. Id. ¶¶ 60-61.
B. The Credit Agreement and Subsequent Agreements
On September 22, 2008, the FRBNY and AIG entered into an agreement (“the Credit Agreement”), under which the FRBNY agreed to extend up to $85 billion in credit to AIG on a revolving basis. The Credit Agreement required AIG to fully secure the loan with AIG assets, pay the interest rate specified in the September 16, 2008 term sheet, and issue to a trust (“the Trust”) Series C Preferred Stock convertible to 79.9% of AIG’s common stock.
To implement the terms of the Credit Agreement, the parties subsequently entered into three related agreements. On January 16, 2009, the parties entered into the AIG Credit Facility Trust Agreement (the “Trust Agreement”), which established the Trust to hold the Government’s Series C Preferred Stock. According to Starr, the Trust “was created ‘for the sole benefit of the United States Treasury’” and consisted entirely of the Series C Preferred Stock. Compl. ¶¶ 69-70 (quoting the Trust Agreement). The Series C Preferred Stock provided the Trust with voting power equivalent to a 79.9% interest in AIG. In addition, on March 1, 2009, the parties entered into the “Stock Purchase Agreement” to facilitate the conversion of the Government’s preferred stock into common stock. Id. ¶ 91. Ultimately, upon the closing of the “Recapitalization Plan” on January 14, 2011, the Government converted its preferred stock into 562,868,096 shares of common stock. Id. ¶ 101.
At the time of the Credit Agreement, Starr maintains that a 79.9% ownership interest in AIG common stock was valued at $23 billion. Id. ¶ 67. Yet, according to Starr, the Trust “was required to pay nothing more than $500,000 for the Series C Preferred Stock with the purported ‘understanding that additional and independently sufficient consideration was also furnished to AIG by the [FRBNY] in the form of its lending commitment ... under the Credit Agreement.’ ” Id.
What Starr calls the “grossly disproportionate” terms of the loan transaction form the basis of Starr’s takings claims. Id. ¶ 55(d). Starr asserts that AIG compensated the Government for its lending commitment by fully securing the loan with AIG assets and offsetting any risk by agreeing to a 14.5% interest rate on the loan. By also demanding a 79.9% interest in AIG, Starr claims the Government acted in excess of its authority under Section 13(3) and took the property of AIG and its shareholders without just compensation. See Compl. ¶ 171.
IV. June 2009: The AIG Shareholder Meeting And Reverse Stock Split
Starr maintains that the Credit Agreement gave the Government the “contractual right” to receive the Series C Preferred Stock convertible to 79.9% of AIG common stock. Tr. 53, 109 (Boies); see also Compl. ¶ 65. As Starr explains, however, AIG’s then-govern*58ing Restated Certificate of Incorporation (AIG’s “Charter”) did not authorize a sufficient number of common shares to allow the Government to acquire a 79.9% interest in AIG. The Charter provided for 5 billion shares of authorized common stock, of which more than S billion had been issued or reserved, leaving less than 40% available for conversion. To enable the Government to acquire a 79.9% interest in AIG, the Government needed to amend the Charter to increase the number of authorized shares of common stock.
To increase the number of authorized shares, Starr contends that Delaware law required the Government to obtain approval from a majority of the then-existing common shareholders voting as a separate class. Id. ¶81 (citing Del.Code Ann. tit. 8, § 242 (2012)). Consistent with Delawai’e law, Starr maintains that the Government represented in the Delaware Court of Chancery, in its securities filings, and in the Stock Purchase Agreement, that it would not convert its preferred stock into common stock without an independent vote of the then-existing common shareholders to increase the number of authorized shares.
According to Starr, at AIG’s annual shareholder meeting on June 30, 2009, the Government “circumvent[ed]” the requisite vote of the common stock shareholders by means of a reverse stock split. Id. ¶ 102. The meeting materials included two proposals (relevant here), which Starr calls “Proposal 3” and “Proposal 4.” Id. ¶¶ 94, 97. Proposal 3 sought to amend the Charter to increase the number of authorized common shares. With the then-existing common shareholders voting as a separate class, Proposal 3 failed. Anticipating that Proposal 3 would fail, the meeting materials also included Proposal 4, which sought to implement a reverse 20.T stock split that would apply to issued, but not authorized, shares. With the Government’s controlling vote participating, Proposal 4 passed.
By means of the reverse stock split, the Government reduced the number of issued common shares from approximately 3 billion to 150 million, while leaving the number of authorized common shares at 5 billion. Correspondingly, the Government increased the percentage of authorized but unissued shares from less than 40% of the outstanding common stock to more than 90% of the outstanding common stock. This enabled the Government to convert its preferred stock into a majority share of AIG common stock, which it did on January 14, 2011, upon the closing of the Recapitalization Plan.
According to Starr, the conversion “completed” the Government’s taking of the AIG shareholders’ interests. Id. ¶ 101(a). Starr contends that the Government obtained the common shares for “virtually nothing” ($500,-000, i.e., what the Government allegedly paid for the Series C Preferred Stock), given that the shares had a market value in excess of $25 billion as of January 14, 2011. Id. ¶¶ 101(a), (c).
V. The Maiden Lane III Transactions
In addition to the Government’s alleged taking of over 562 million shares of AIG common stock, Starr contends that the Government took cash collateral posted by AIG to effect a “backdoor bailout” of AIG’s coun-terparties.
Starr explains that in the summer of 2008, AIG was receiving collateral calls from its counterparties due to the counterparties’ own collateral calls. At that time, the FRBNY created a special purpose vehicle designated Maiden Lane III (“ML III”), ostensibly to resolve AIG’s obligations to its CDS counter-parties. According to Starr, AIG and the FRBNY funded ML III, with AIG ultimately posting $32.5 billion in cash collateral, along with an additional $5 billion equity investment, and the FRBNY lending ML III $24.3 billion.
Starr maintains that “[tjhrough its control over AIG,” the FRBNY “required AIG” to use ML III to purchase CDO assets from AIGFP counterparties. Compl. ¶ 114. In a series of transactions executed in November and December 2008, ML III purchased approximately $62.1 billion worth of notional CDO assets from AIGFP counterparties. As part of the purchase price, the counterparties retained the cash collateral that AIG had posted prior to ML Ill’s formation.
*59Starr contends that the FRBNY paid the AIGFP counterparties near face value for their CDOs in exchange for their agreement to cancel their CDS contracts with AIG. The FRBNY also required AIG to execute releases waiving all claims against the counterparties arising out of the contracts cancelled through ML III. Starr asserts a taking of AIG’s collateral based upon its position that AIG’s obligations could have been compromised for substantially less than face value.
DISCUSSION
Based on the foregoing facts, Starr seeks just compensation for the Government’s taking of the property of AIG and AIG shareholders to engineer a “backdoor bailout” of AIG’s counterparties during the financial crisis in 2008. First, Starr brings a direct takings claim based on the Government’s alleged expropriation of the economic value and voting power associated with the shares of AIG common stock owned by Starr and the class. Second, Starr advances derivative claims to recover just compensation for the Government’s alleged taking of a 79.9% equity interest in AIG, as well as a portion of the collateral posted by AIG prior to the formation of ML III. Finally, Starr brings an illegal exaction claim, asserting that the Government exacted and retained AIG’s property in excess of the Government’s statutory and regulatory authority.
The Government urges the Court to dismiss this action pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction. First, the Government contends that 28 U.S.C. § 1500 bars this action because Starr has pending in district court an action advancing substantially the same claims as alleged here. Second, according to the Government, this Court lacks jurisdiction to hear Starr’s Equal Protection and Due Process claims because those Constitutional provisions are not money-mandating. Third, the Government argues that Starr lacks standing to maintain its direct claim because the interests forming the basis of that claim belong to AIG, not Starr or any other shareholder. Fourth, the Government contends that Starr lacks standing to advance its derivative claims because Starr failed to plead adequately a demand on AIG’s board or the futility of such a demand.
Even if the Court were to find that it possesses jurisdiction, the Government urges the Court to dismiss Starr’s takings and illegal exaction claims under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted. The Government urges dismissal of Starr’s takings claims based on the following five allegations: (1) Starr fails to pinpoint the aetion(s) for which the Government allegedly owes just compensation; (2) Starr relies upon allegations that the FRBNY’s actions were unlawful and unauthorized; (3) Starr fails to demonstrate that the challenged transactions were involuntary; (4) Starr fails to identify legally cognizable property interests taken from it or AIG; and (5) Starr relies, in part, on a “rough proportionality” test that is inapplicable here.
As to Starr’s illegal exaction claim, the Government contends that Starr does not satisfy the jurisdictional prerequisites for such a claim because Starr fails to demonstrate that any statute mandates the return of money to it or AIG. Moreover, as with Starr’s takings claims, the Government maintains that AIG voluntarily entered into the loan agreement, and, as such, AIG’s agreement to transfer equity in exchange for a loan was not an “exaction.” Likewise, neither was the transaction “illegal,” according to the Government, because the FRBNY did not exceed its authority under Section 13(3) of the FRA when it caused the transfer of AIG equity to the Trust in consideration for the loan. The Court addresses each of the Government’s arguments in turn.
I. Standard Of Review
To survive a motion to dismiss, a plaintiff need only “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court must accept as true all well-pleaded allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A well-pleaded complaint may proceed even if it appears on the face of the pleadings that “recovery is very *60remote and unlikely.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In sum, the Court considers the Government’s motion to dismiss keeping in mind that Starr’s burden at this phase is “minimal.” Colonial Chevrolet Co. v. United States, 103 Fed.Cl. 570, 574 (2012). Although the facts of this case are vigorously contested, the Court must accept all well-pleaded allegations in Starr’s Complaint and construe the facts in the light most favorable to Starr.
II. Whether The Court Lacks Subject Matter Jurisdiction To Hear Plaintiffs’ Claims
Subject matter jurisdiction is a threshold issue to be considered before proceeding to the merits of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Where subject matter jurisdiction over a claim is at issue, the plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (internal citations omitted). In “determining whether a motion to dismiss should be granted, the ... Court may find it necessary to inquire into jurisdictional facts that are disputed.” Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991). If subject matter jurisdiction is lacking, the Court must dismiss the action. RCFC 12(h)(3).
A. Whether the Court Possesses Subject Matter Jurisdiction In Light of 28 U.S.C. § 1500 and Starr’s Pending Action in District Court
The Government contends that 28 U.S.C. § 1500 bars this action because Starr has pending in district court an action advancing substantially the same claims as alleged here. By operation of Section 1500, this Court “has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.” United States v. Tohono O’odham Nation, — U.S. -, 131 S.Ct. 1723, 1727, 179 L.Ed.2d 723 (2011). As the U.S. Supreme Court explained in Tohono O’odham, “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in [this Court], if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Id. at 1731. Section 1500 deprives this Court of jurisdiction, however, only where a plaintiff commences a suit in the other court before filing in this Court. Tecon Eng’rs, Inc. v. United States, 343 F.2d 943, 949 (Ct.Cl.1965).
The Government argues that the sequence of filing rule, stated in Tecon, is no longer controlling authority in light of dicta from Tohono O’odham. See Def.’s Mot. 13-14. The Court recently addressed this same argument in United Keetoowah Band of Cherokee Indians in Okla. v. United States, holding that dicta from Tohono O’odham does not supersede otherwise binding precedent from Tecon, 104 Fed.Cl. 180, 189-90 (2012). The Court also concluded that the per se rule from Passamaquoddy Tribe v. United States, is limited to circumstances ‘“when evidence is lacking as to which of the two complaints was filed first.’ ” 82 Fed.Cl. 256 (2008), ajfd, 426 Fed.Appx. 916 (Fed.Cir.2011) (non-prece-dential) (quoting Kaw Nation of Okla. v. United States, 103 Fed.Cl. 613, 634 (2012)).
Here, it is undisputed that Starr filed its complaint in this Court prior to filing in the U.S. District Court for the Southern District of New York. See Tr. 9 (Todor). Consequently, the per se rule from Passamaquod-dy Tribe is inapplicable, and the rule articulated in Tecon dictates that Section 1500 does not deprive this Court of subject matter jurisdiction.
Further, the Court is not convinced that the district court action naming the FRBNY as Defendant would trigger application of Section 1500 in the first place. Starr could not have sued the FRBNY in the Court of Federal Claims. The Court is skeptical of an interpretation of Section 1500 that would require Starr to forgo one of its two actions, which it could not have filed in the same court based upon the named Defendants.
B. Whether the Court Possesses Jurisdiction Over Claims Starr Characterizes As Due Process and Equal Protection Violations
The Government next argues that the Court does not have subject matter juris*61diction over Starr’s Due Process and Equal Protection claims. See Def.’s Mot. 14. The Tucker Act, 28 U.S.C. § 1491(a)(1), operates as a grant of subject matter jurisdiction for “specified types of claims against the United States” and as “a waiver of sovereign immunity with respect to those claims.” United States v. Mitchell, 463 U.S. 206, 212, 103 5.Ct. 2961, 77 L.Ed.2d 580 (1983) (internal footnote omitted). The Act does not, however, create a substantive right to recover against the Government. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Instead, that substantive right must stem from either a “money-mandating” source of positive law or an “illegal exaction” under the color of positive law. Eastport S.S. Corp. v. United States, 372 F.2d 1002,1007-09 (Ct.Cl.1967), abrogated in part on other grounds by Malone v. United States, 849 F.2d 1441, 1444-45 (Fed.Cir.1988).
These two types of permissible Tucker Act claims can be thought of as complements. Crocker v. United States, 37 Fed.Cl. 191, 197 (1997), aff'd per curiam, 125 F.3d 1475 (Fed.Cir.1997). The first type of claim seeks to recover affirmative damages from the Government pursuant to a statutory, regulatory, or constitutional provision. Id. The second type of claim seeks to recover funds already paid to the Government pursuant to a statutory, regulatory, or constitutional provision. Id. The U.S. Court of Appeals for the Federal Circuit has indicated that even in the case of an illegal exaction, a claimant must satisfy the usual money-mandating requirement of the Tucker Act. See Norman v. United States, 429 F.3d 1081, 1095 (Fed.Cir.2005).6 Specifically, the “claimant must demonstrate that the statute or provision causing the exaction itself provides, either expressly or by ‘necessary implication,’ that ‘the remedy for its violation entails a return of money unlawfully exacted.’ ” Norman, 429 F.3d at 1095 (quoting Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373 (Fed.Cir.2000)).
An illegal exaction also may be conceptualized as “a deprivation of property without due process of law.” Id. In that sense, it is an exception to the general rule that the Due Process Clause of the Fifth Amendment is not money-mandating. Murray v. United States, 817 F.2d 1580, 1583 (Fed.Cir.1987) (internal citation omitted). Neither is the Equal Protection Clause money-mandating. Carruth v. United States, 627 F.2d 1068, 1081 (Ct.Cl.1980) (internal citation omitted). Based on the foregoing, Starr may maintain its Due Process claim in this Court only insofar as it is based on an illegal exaction theory. Starr may not maintain an Equal Protection claim as a stand-alone claim in this Court.
C. Whether Starr Has Standing To Bring Its Direct Claim7
Starr brings a direct takings claim for the Government’s alleged “expropriation of the economic value and voting power associated with plaintiffs shares of AIG common stock.” Pl.’s Opp. 29. The Government contends that Starr lacks standing to assert its expropriation claim8 directly because, under *62Delaware law, such claims are generally derivative only and Starr’s claim does not fall within the exception to that general rule. See Def.’s Rep. 4-5. As set forth below, the Court finds that Starr has pled facts sufficiently alleging a harm to the suing stockholders independent of any harm to AIG and as such, has standing to advance its expropriation claim directly.
1. Applicable law
In Tooley v. Donaldson, 845 A.2d 1031 (Del.2004), the Supreme Court of Delaware clarified the test for determining whether a claim is derivative or direct. The determination, it said, turns “solely on the following questions: (1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?” Id. at 1033 (emphasis in original). In other words, “a court should look to the nature of the wrong and to whom the relief should go.” Id. at 1039. The court explained that “[t]he stockholder must demonstrate that the duty breached was owed to the stockholder and that he or she can prevail without showing an injury to the corporation.” Id.
Central to Starr’s claims is its assertion that the Government forced AIG to issue to the Government over 562 million shares of AIG common stock worth over $20 billion9 in exchange for the Series C Preferred Stock, “for which the Government paid virtually nothing” ($500,000). Pl.’s Opp. 11; Compl. ¶¶ 67, 174. Such “corporate overpayment” claims10 are “premised on the notion that the corporation, by issuing additional equity for insufficient consideration, made the complaining stockholder’s stake less valuable.” Feldman, 956 A.2d at 655. The Supreme Court of Delaware has said that such claims are normally regarded as exclusively derivative. Rossette, 906 A.2d at 99. This is because, in Tooley terms, the corporation is “the party that suffers the injury (a reduction in its assets or their value) as well as the party to whom the remedy (a restoration of the improperly reduced value) would flow.” Id.
The Supreme Court of Delaware has recognized, however, “a species of corporate overpayment claim” that is “both derivative and direct in character.” Id.; In re Tri-Star Pictures, 634 A.2d 319; Gatz, 925 A.2d 1265. In Rossette, 906 A.2d at 100, and subsequently in Gatz, 925 A.2d at 1278, the court explained that such a claim arises where:
(1) a stockholder having majority or effective control causes the corporation to issue ‘excessive’ shares of its stock in exchange for assets of the controlling stockholder that have a lesser value; and (2) the exchange causes an increase in the percentage of the outstanding shares owned by the controlling stockholder, and a corresponding decrease in the share percentage owned by the public (minority) shareholders.
Where such a transaction occurs, the court held that in addition to having a derivative claim, the public shareholders also have a direct claim for the expropriation, or dilution, of their economic value and voting power. Rossette, 906 A.2d at 100.
*63In so holding, the court was careful to point out that this type of corporate overpayment claim has two independent aspects, despite arising from the same transaction. See id. at 99. The first aspect is that the corporation was forced to overpay for an asset (here, the $85 billion loan) in the exchange (here, for the 79.9% stake in AIG). Id. This aspect is the basis for the derivative claim because “any dilution in value of the corporation’s stock is merely the unavoidable result (from an accounting standpoint) of the reduction in the value of the entire corporate entity, of which each share of equity represents an equal fraction.” Id. “[S]ueh equal ‘injury,’ ” said the court, “is not viewed as, or equated with, harm to specific shareholders individually.” Id.
The second aspect is that, by means of the overpayment (in the form of excessive shares), the minority shareholders lost a portion of the economic value and voting power of their stock interest. Id. This aspect is the basis for the direct claim because the harm “is not confined to an equal dilution of the economic value and voting power of each of the corporation’s outstanding shares,” i.e., the basis for the derivative claim. Rossette, 906 A.2d at 99. Rather, “[a] separate harm also results:”
an extraction from the public shareholders, and a redistribution to the controlling shareholder, of a portion of the economic value and voting power embodied in the minority interest. As a consequence, the public shareholders are harmed, uniquely and individually, to the same extent that the controlling shareholder is (correspondingly) benefited.
Id. In such a case, the court held that public shareholders are entitled to bring a direct claim “to recover the value represented by the overpayment.” Id.
2. The parties’ arguments
Relying in part on the framework set forth in Gatz and Rossette, Starr asserts that it has standing to bring a direct claim because the Government first took control of AIG and then used that control to expropriate a 79.9% interest in AIG from the minority shareholders.11 See Pl.’s Opp. 22-23. Specifically, Starr claims that the Government gained control of AIG on September 16, 2008 pursuant to the term sheet. See Tr. 78, 106, 109 (Boies). As stated in Starr’s Complaint, one of the terms “demanded” by the Government, ¶ 55(d), was “a requirement that the Government be given control of AIG as controlling lender and controlling shareholder,” ¶ 55(b). In addition, Starr claims that the next day, September 17, 2008, “the Government unilaterally fired AIG’s CEO and replaced him with a new CEO (Edward M. Liddy) who would be under FRBNY’s control.” Id. ¶ 60; see also Tr. 57, 67, 106, 109 (Boies). Starr alleges that “[a]t all relevant times, Mr. Liddy acted as if he were under the control of and the agent of FRBNY and the Government.” Compl. ¶ 61.
Thereafter, Starr asserts that the Government used its control of AIG to expropriate the economic and voting interests of the then-existing common stock shareholders. See Pl.’s Opp. 22-23. Starr alleges that pursuant to the Credit Agreement, signed September 22, 2008, the Government took 79.9% of the minority shareholders’ “equity interest,” consisting of dividends and liquidation value, as well as 79.9% of their “first voting interest,” consisting of dividend and shareholder voting rights (but not yet common stock only voting rights). Tr. 101 (Boies); see also Slide 20.12 Subsequently, Starr al*64leges that the Government took 79.9% of the minority shareholders’ common stock only voting rights by means of the reverse stock split on June 30, 2009 and the conversion of the Series C Preferred Stock into over 562 million shares of common stock on January 14, 2011. Tr. 101 (Boies); see also Slide 16.
The Government concedes that the Gatz-Rossette line of cases recognize the right of a plaintiff to bring a direct claim where a stockholder uses its “‘majority or effective control’ ” to dilute minority shares.13 See Def.’s Rep. 5 (quoting Rossette, 906 A.2d at 100). The Government contends, however, that Starr’s claim does not fall within that Gatz-Rossette framework because the Government was not a stockholder, nor did it have majority or effective control of AIG, when the purported dilution occurred. Id.
Key to the Government’s position is its assertion that any alleged dilution occurred on September 16, 2008, when AIG agreed to transfer a 79.9% equity interest to the Government in exchange for the $85 billion loan. Id. (citing Compl. ¶ 4); Tr. 17 (Todor). In the Government’s view, the subsequent events — the issuance of the Series C Preferred Stock to the Trust, the reverse stock split, and the conversion of the preferred stock into common stock — were merely implementations of the September 16 agreement. See Tr. 17-18 (Todor). On September 16, 2008, however, the Government notes that “neither the United States nor the FRBNY was a common shareholder,” as AIG did not issue the Series C Preferred Stock to the Trust until March 1, 2009 and the Government did not acquire AIG common stock until January 14, 2011. See Def.’s Rep. 5 (citing Compl. ¶¶ 52-54); Tr. 17-18 (Todor). Moreover, the Government asserts that it could not have used its majority or effective control to increase its share at the expense of the minority because it acquired control at the same time it acquired its 79.9% share: on September 16, 2008. See Tr. (Todor).
3. Analysis
[8] In determining whether Starr has standing to advance its direct claim, the Court notes that the question of when the purported dilution occurred is a factual one that cannot be decided definitively at this time. The Court does not have before it the September 16, 2008 Sepsheet or the September 22, canCredit Agreement and cannot make any conclusive determinations as to what pursuthe Government obtained pursuant to Governagreement. While the Government maintains that any purported dilution occurred on the same date the Government acquired control of AIG, the Court must accept as true conposition to the contrary.
The Court notes that it is unclear why, if Starr’s position is to be believed, the term sheet was binding as to control but not as to the transfer of the 79.9% interest in AIG (or why the former was not simply the result of the latter). As stated in Starr’s Complaint, the term sheet consisted of three terms, including “a requirement that the Government be given control of AIG” and “a promise that the Government would receive a nearly 80% equity stake in AIG.” ¶ 55(a). Starr’s position appears to be that while the term sheet was sufficient to establish the Government’s control over AIG, it was not sufficient to give the Government the “contractual right” to a 79.9% interest in AIG. Tr. 53, 109 (Boies). Regardless, insofar as Starr claims that the Government first acquired control of AIG (on September 16, 2008) and then used that control to expropriate a 79.9% interest in AIG from the minority shareholders, Gatz and Rossette can be read to support the right of the minority shareholders to bring a direct claim for the expropriation of a portion of the *65economic value and voting power embodied in their interests.
The Court acknowledges that the circumstances in Gatz and Rossette are distinguishable from those here. Both Gatz and Ros-sette involved breach of fiduciary duty claims rather than takings claims. Moreover, even under Starr’s rendition of the facts, the Government was not a stockholder when the initial dilution purportedly occurred, as the parties agree that stock was not issued to the Trust until March 1, 2009. See Tr. 25 (Sim-kin), 101 (Boies).
Nevertheless, the Court is persuaded that the facts alleged here are sufficiently analogous to those in Gatz and Rossette to support Starr’s right to maintain a direct claim for the taking of its equity and voting interests. Whether styled as a takings claim or a breach of fiduciary duty claim, the Plaintiffs here, like those in Gatz and Rossette, seek compensation for the improper extraction of the economic value and voting power associated with their shares of stock. In Gatz and Rossette, it was important that a controlling shareholder existed because only then did a fiduciary duty to the minority shareholders arise. As stated in Dubroff v. Wren Holdings, LLC, Rossette’s “linkage of equity dilution claims to a controlling shareholder grows out of the principle that a controlling shareholder owes fiduciary duties to the shareholders of the corporation she controls.” C.A. No. 3940-VCN, 2009 WL 1478697, at *3, 2009 Del.Ch. LEXIS 89, at *11 (Del.Ch. May 22, 2009). Here, however, the Government has a preexisting duty under the Fifth Amendment not to take private property for public use without paying just compensation. As in Gatz and Rossette, the Government had an obligation not to appropriate the minority shareholders’ property interests14 — irrespective of whether the Government was a stockholder when the purported dilution occurred.
Given the Government’s preexisting duty not to take property without paying just compensation, the Court looks to Gatz and Rossette to determine who has the right to maintain a takings claim against the Government: AIG or the shareholders individually. As in Gatz and Rossette, Starr claims that AIG was forced to overpay (ultimately in the form of over 562 million shares of common stock) for an asset of lesser value (the Series C Preferred Stock). As in Rossette, Starr’s claim falls comfortably within the framework articulated in Tooley. See 906 A.2d at 102. First, assuming the truth of Starr’s allegations, the Government extracted from the public shareholders, and redistributed to itself, “a portion of the economic value and voting power embodied in the minority interest.” Id. at 100. As a result, AIG’s shareholders were harmed “uniquely and individually” to the same extent that the Government benefited. Id. Second, counsel for AIG represented at oral argument that the Government continues to own 61% of AIG today. Tr. 82 (Allerhand). If Starr were to prevail on its derivative claim only, any recovery would go to AIG, with the Government receiving an amount corresponding to its ownership percentage. Because the party that suffers the alleged harm should be the beneficiary of any recovery, the Government’s continuing ownership interest in AIG provides further support for the view that Plaintiffs have standing to bring a direct claim. For the foregoing reasons, the Court concludes that Starr has standing to advance its direct claim.
D. Whether Starr Has Adequately Pled Demand on AIG’s Board or Excusal of Demand for Purposes of Its Derivative Claim
The Government next argues that the Court should dismiss Starr’s derivative claims under RCFC 23.1 because Starr failed to make a demand on AIG’s board or to plead adequately why such a demand should be excused.15 Def.’s Mot. 18. In response, *66both Starr and Nominal Defendant, AIG have asked the Court to defer ruling on the demand issue until after the Government’s motion to dismiss has been resolved.16 See AIG Resp. 3; Pl.’s Opp. 24. The Government opposes the proposal to defer ruling on the demand issue, contending that doing so would “reverse proper procedure,” “waste judicial resources,” and “violate the requirement that a plaintiff possess standing.” Def.’s Rep. 6-7.
In light of the purpose underlying the demand requirement, the Court finds no reason to address the demand issue at this time. The purpose of the demand requirement is to protect the “directors’ power to manage the affairs of the corporation.” Kaplan v. Peat, Marwick, Mitchell & Co., 540 A.2d 726, 730 (Del.1988) (citing Aronson v. Lewis, 473 A.2d 805, 811 (Del.1984)). As the Supreme Court of Delaware explained in Ar-onson:
By its very nature the derivative action impinges on the managerial freedom of directors. Hence, the demand requirement ... exists at the threshold, first to insure that a stockholder exhausts his in-tercorporate remedies, and then to provide a safeguard against strike suits. Thus, by promoting this form of alternate dispute resolution, rather than immediate recourse to litigation, the demand requirement is a recognition of the fundamental precept that directors manage the business and affairs of corporations.
473 A.2d at 811-12. Here, AIG — the party the demand requirement was meant to protect — has not sought to enforce its right to a demand but instead, has requested that the Court defer ruling on the issue. Under such cii’cumstanees, the Court is not compelled to address the demand issue at this time.
Moreover, deferring the demand issue will preserve judicial resources. In an order dated March 13, 2012, the Court stated that “in the event that [it] denies the Government’s March 12, 2012 motion to dismiss, AIG may file an answer ... or dispositive motion within twenty days after the Government’s filing of its answer.” Dkt. No. 35. If the Court were to decide the demand issue now, based upon the parties’ filings to date, it is conceivable that it would need to do so again upon receiving the pending filing from AIG. The Government concedes as much. Therefore, in the interest of judicial economy, the Court will rule on the demand issue after it receives AIG’s upcoming filing. Once AIG has made its filing, the Court will have all of the parties’ views before it and will be in the best position to decide the demand issue definitively.
In sum, concerning the Government’s motion to dismiss pursuant to RCFC 12(b)(1), the Court concludes that: (i) 28 U.S.C. § 1500 does not deprive the Court of jurisdiction over this action; (ii) the Court has jurisdiction over Starr’s illegal exaction claim; (iii) the Court does not otherwise have jurisdiction over any Due Process claims or any Equal Protection claims; and (iv) Starr has standing to bring its direct claim. In addition, the Court defers the demand issue for the time being. The Court now turns to the Government’s motion to dismiss pursuant to RCFC 12(b)(6).
III. Whether Starr Has Failed To State A Claim Upon Which Relief Can Be Granted
In addition to its jurisdictional arguments, the Government urges the Court to dismiss Starr’s takings claims, as well as its illegal exaction claim, pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief can be granted.
To survive a 12(b)(6) motion, a plaintiff must provide “ ‘a short and plain statement of the claim showing that [it] is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 *67S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The plaintiff must provide more than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A court should assume the truthfulness of all well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
In asserting that Starr fails to state a takings claim, the Government makes five primary arguments. The Court addresses each one in turn.
A. Review of Starr’s Takings Claims
1. Whether Starr fails to state a takings claim because it has not pinpointed adequately the government aetion(s) requiring just compensation
a.The parties’ arguments
The Government argues that Starr fails to state a takings claim because it does not “pinpoint the specific act for which the Government allegedly owes just compensation.” Def.’s Mot. 24. Starr concedes that a “takings analysis requires identification of the action or actions that require just compensation.” Pl.’s Opp. 44 n. 22. In response to the Government’s argument, however, Starr merely states that the Government “cannot credibly claim ... that it does not understand the basis for Starr’s claim that the Government owes just compensation.” Id. Like the Government, the Court has not found Starr’s filings to be a model of clarity on this issue. Nevertheless, for purposes of a motion to dismiss, the Court finds that StaiT has identified sufficiently the government actions allegedly requiring just compensation.
b.Applicable law
The Federal Circuit has stated that where a plaintiff alleges a taking consisting of “several distinct actions viewed in concert,” its “ ‘characterization ... is too broad.’” Acceptance Ins. Cos. v. United States, 583 F.3d 849, 855 (Fed.Cir.2009) (quoting Branch v. United States, 69 F.3d 1571, 1575 (Fed.Cir.1995)). Instead, a plaintiff must “pinpoint what step in the sequence of events ... constituted conduct that the government could not engage in without paying compensation.” Branch, 69 F.3d at 1575. In Branch, the plaintiff characterized its takings claim as consisting of the Government’s “assessment and ... consequent seizure and closure of the Maine National Bank.” Id. The Federal Circuit held that the plaintiffs characterization was “too broad.” Id. The court noted that the bank’s insolvency, which led to its seizure and closure, was the “direct result” of the Government’s assessment of liability. Id. Consequently, the court pinpointed the assessment as the action to be examined for a Fifth Amendment taking. Id.
c.Analysis
During oral argument on the Government’s motion to dismiss, Starr characterized the alleged taking of a 79.9% equity interest in AIG as occurring in three steps, including the signing of the Credit Agreement, the reverse stock split, and the conversion of the Series C Preferred Stock into over 562 million shares of common stock. Tr. 52-56 (Boies); Slide 18. As in Acceptance and Branch, the Court finds that Starr’s characterization is too broad. Instead, the Court must determine the precise event that fixed any potential government liability. Creppel v. United States, 41 F.3d 627, 634 (Fed.Cir.1994) (internal citation omitted).
Notwithstanding Starr’s characterization at oral argument, Starr’s Complaint, opposition brief, and other statements to the Court serve to pinpoint the precise government actions that it contends require just compensation. There are three such actions. First, in its Complaint and statements during oral argument, Starr consistently alleges that the *68Government took a 79.9% equity interest in AIG when it “imposed” the Credit Agreement on AIG’s board, Compl. ¶ 64, thereby obtaining a “contractual right” to the Series C Preferred Stock convertible into 79.9% of AIG’s common stock, Tr. 53 (Boies); see also Compl. ¶¶ 63, 65; Tr. 51-52, 100-01, 105 (Boies). Moreover, in response to the Government’s argument that it had not identified adequately the government conduct requiring just compensation, Starr highlighted its allegations that “the credit agreement contained ... disproportionate terms” and that the Government “coerced the AIG Board.” Pl.’s Opp. 44 n. 22. Starr’s response supports the view that it alleges the first taking occurred when the Government imposed the Credit Agreement on AIG’s board. This view also comports with Starr’s direct claim, whereby Starr maintains that the Government took 79.9% of the minority shareholders’ “equity interest” and “first voting interest” by means of the Credit Agreement. Tr. 100-01 (Boies); see also Slide 20. The actual issuance of the preferred stock to the Trust was simply the “direct result,” Branch, 69 F.3d at 1575, or “implement[ation],” as Starr puts it, Tr. 101 (Boies), of the provisions of the Credit Agreement.
Second, in its Complaint, statements during oral argument, and opposition brief, Starr alleges that pursuant to the reverse stock split on June 30, 2009, the Government took the remaining voting rights (the voting rights for the common stock only votes) of the then-existing common stock shareholders. Compl. ¶¶ 100, 102, 177; Tr. 54-55, 105 (Boies); Slide 16; Pl.’s Opp. 44 n. 22 (citing the Government’s “nullifi[cation] [of] shareholder protections” as an action requiring just compensation). To be precise, Starr claims that the Government took the common stock shareholders’ “right to exclude [the] Government (or anyone) from diluting [the] pool of Common Stock by more than 40%,” Slide 21, by eliminating the majority control the common stock shareholders had when voting as a separate class, see Compl. ¶¶ 81, 95-97.
To address Starr’s claim, the Court recaps the relevant events that occurred during the June 2009 AIG shareholder meeting. As noted, pursuant to the Credit Agreement, the Government received the right to the Series C Preferred Stock convertible to 79.9% of AIG common stock. See Compl. ¶¶ 65-66, 79. Prior to the June 30, 2009 shareholder meeting, however, over 60% of AIG’s common stock was issued or reserved, such that the Government could not convert its preferred shares into 79.9% of AIG common stock. See id. ¶¶ 79-80. With over 60% of all authorized common stock, the common stock shareholders possessed majority voting power when voting as a separate class. See id. ¶¶ 79-83, 95-97; Slide 21.
By means of the reverse stock split on June 30, 2009, the Government decreased the number of issued shares from approximately 3 billion to approximately 150 million, while leaving the number of authorized shares at 5 billion. See Compl. ¶ 97. “Through these machinations,” id., the Government increased the percentage of authorized shares available for conversion, thereby enabling the Government ultimately to obtain an approximate 90% interest in AIG common stock, see id. ¶¶ 94-101. Correspondingly, the common shareholders lost their ability to prevent anyone from diluting the pool of common stock by more than 40% and ultimately, lost their majority vote when voting as a separate class. Slide 21. Even if the Government had the contractual right under the Credit Agreement to convert its preferred stock into 79.9% of AIG common stock, see id. ¶ 65; Tr. 53 (Boies), it was unable to do so prior to the reverse stock split, and the then-existing common shareholders retained their majority in a separate class vote. Thus, the second taking accrued, if at all, when the Government effected the reverse stock split on June 30, 2009.
Third, Starr has maintained throughout this litigation that the Government effected a taking in November and December 2008 when it used the $32.5 billion in cash collateral posted by AIG to purchase certain CDOs from AIGFP counterparties. Compl. ¶¶ 108, 112-115; Tr. 106 (Boies); see also Pl.’s Opp. 29, 44 n. 22 (citing the Government’s use of AIG assets “to effect a ‘backdoor bailout’ ” as an action requiring just compensation).
*69Finally, Starr also alleges that the Government effected a taking when it converted its Series C Preferred Stock to 562,868,096 shares of AIG common stock on January 14, 2011. Tr. 52-56 (Boies); Slide 18. In its Complaint, Starr points to different government actions as amounting to the same taking. Compare Compl. ¶¶ 66-67 (indicating that the Government took a 79.9% equity interest in AIG on September 22, 2008 pursuant to the Credit Agreement), with id. ¶¶ 101, 101(a) (indicating that the Government took the same interest on January 14, 2011 pursuant to the conversion of its preferred stock into common stock). Moreover, in other filings with the Court, Starr specifically states that the January 14, 2011 conversion was a taking “independent[ ]” of the alleged taking on September 22, 2008. Slide 18.
As the Government points out, however, “the same equity interest cannot have been taken twice.” Def.’s Rep. 23. If Starr’s claims are to be believed, on September 22, 2008, the Government obtained a “contractual right” to the “Series C Preferred Stock convertible to 79.9% of AIG’s equity.” Compl. ¶ 65; Tr. 53 (Boies). If the Government, in fact, “took” the 79.9% equity interest in AIG on September 22, 2008, it could not have taken that interest again on January 14, 2011. Instead, after September 22, 2008, the Government held the property interest in the preferred stock and the right to convert it into common stock. Under such circumstances, the Government’s conversion of its preferred stock into over 562 million shares of common stock could not have been an additional taking.
In sum, Starr’s filings and representations allege that the actions the Government could not carry out without paying just compensation were: (1) the imposition of the Credit Agreement on September 22, 2008; (2) the reverse stock split on June 30, 2009; and (3) the Government’s use of AIG collateral to purchase certain CDOs from AIG counter-parties in November and December of 2008. The Court emphasizes that it makes no determinations as to the ultimate merit of Starr’s claims. Nevertheless, for purposes of this motion to dismiss, the Court concludes that Starr has sufficiently identified the government actions allegedly requiring just compensation.
2. Whether Starr fails to state a takings claim because it alleges the FRBNYs actions were unauthorized or unlawful
The Government next argues that “to maintain a takings claim, Starr must, at a minimum, concede that the actions that it alleges constitute takings were authorized and lawful.” Def.’s Mot. 25. The Government characterizes Starr’s takings claims as “premised upon allegations that the Government violated Section 13(3) of the Federal Reserve Act.” Id. As such, the Government urges the Court to dismiss Starr’s action for failure to state a takings claim. Id. In response, Starr denies asserting that the Government’s actions were “unauthorized” as the term is used in .the case law to preclude a takings claim. PL’s Opp. 45. Starr also rejects the Government’s position that it must concede the legality of the government action for all purposes to maintain a takings claim. Id.
To state a cognizable takings claim, a plaintiff must allege: (1) that “the government conduct at issue was ‘authorized,’ Le., ... chargeable to the government”; and (2) “a Fifth Amendment taking for which just compensation is sought, rather than a separate statutory or regulatory violation for which damages or equitable relief is sought.” Del-Rio Drilling Programs Inc. v. United States, 146 F.3d 1358, 1362 (Fed.Cir.1998). As explained below, the Court finds that Starr has satisfied both of the DeV-Rio requirements to state a takings claim.
a. Authorization
The Federal Circuit has made clear that “[a] compensable taking arises only if the government action in question is authorized.” Del-Rio, 146 F.3d at 1362. This is because “when a government official engages in ultra vires conduct, the official “will not, in any legal or constitutional sense, represent the United States, and what he does or omits to do, without the authority of Congress, cannot create a claim against the Government founded upon the Constitution.’ ” Id. (quoting Hooe v. United States, 218 U.S. 322, *70335, 31 S.Ct. 85, 54 L.Ed. 1055 (1910)). Government conduct is ultra vires, or unauthorized, if it is “either explicitly prohibited or ... outside the normal scope of the government officials’ duties.” Id.
Here, while Starr alleges that the Government acted in excess of its statutory authority under Section 13(3), see Compl. ¶¶ 12, 58(a), 76-77, 171, Starr does not allege that Section 13(3) explicitly prohibited the government actions, see Pl.’s Opp. 44. Moreover, Starr does not allege that in acting to manage the 2008 financial crisis, government officials acted outside the normal scope of their duties, see Pl.’s Opp. 44, and the Government certainly does not maintain that its actions were ultra vires, see Def.’s Mot. 8 (stating that “the FRBNY agreed to assist AIG using its emergency authority under section 13(3) of the Federal Reserve Act”). Instead, Starr alleges that the government actions were “authorized” at the highest levels. Pl.’s Opp. 44-45 (“[T]he takings here were approved by senior Government officials, including the Secretary of the Treasury.”); Compl. ¶¶ 104-06. As such, the issue of authorization does not bar Starr’s takings claims.
b. Lawfulness
Regarding the lawfulness of a governmental action in the takings context, the Federal Circuit has been careful to emphasize two related points. As an initial matter, a plaintiff is not barred from advancing a takings claim simply because it alleges that the government conduct was unlawful on other grounds. See Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1330-31 (Fed.Cir.2006); Del-Rio, 146 F.3d at 1362. In Del-Rio, the Federal Circuit noted that in the takings context, courts have distinguished between unauthorized conduct and conduct that is authorized but nonetheless unlawful. 146 F.3d at 1362. The court noted that “a government official may act within his authority even if his conduct is later determined to have been contrary to law” and held that it is no barrier to a takings claim that “the government’s action was legally flawed in some respect.” Id. at 1362-63.
In evaluating a takings claim, however, courts assume that the government conduct at issue was lawful and look to whether that action constituted a taking in violation of the Fifth Amendment. Acadia Tech., 458 F.3d at 1331; Rith Energy, Inc. v. United States, 270 F.3d 1347, 1352 (Fed.Cir.2001). Again, the Federal Circuit has been careful to distinguish between its valid exercise of jurisdiction where a plaintiff claims the government action constituted a taking regardless of whether the action was unlawful, and its lack of jurisdiction where a plaintiff claims the government action constituted a taking because the action was unlawful. Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1369 (Fed.Cir.2005) (internal citation omitted). In Lion Raisins, the plaintiff alleged that the agency action constituted a taking because the action was unlawful. Id. The Federal Circuit held that under those circumstances, the plaintiff did not have a right to litigate the issue as a takings claim but instead should have used the mandated administrative review proceeding. Id. at 1369-70.
In addition to its takings claims, Starr maintains that the Government exceeded its authority under Section 13(3) of the FRA to illegally exact a 79.9% interest in AIG. Pl.’s Opp. 46. Under the Federal Circuit’s reasoning from Acadia Tech., 458 F.3d at 1330, and Del-Rio, 146 F.3d at 1362, Starr’s allegation that the Government acted unlawfully does not bar Starr from advancing its takings claims. In fact, the Court of Federal Claims has held specifically that a plaintiff may advance a takings claim and an unlawful exaction claim concurrently. See Figueroa, 57 Fed.Cl. at 496.17
*71Further, Starr asserts that its takings claim “does not depend on successfully establishing that the Government lacked authority under Section 13(3).” Pl.’s Opp. 46. Starr maintains that even if the Government acted lawfully under Section 13(3) in demanding a 79.9% interest in AIG, the Government’s actions still constituted a taking under the unconstitutional conditions doctrine. Tr. 102 (Boies) (“[I]t is either illegal exaction because it’s illegal or it’s an unconstitutional condition if it is pursuant to an authorized condition ... that is disproportionate.”). This demonstrates that unlike the plaintiff in Lion Raisins, Starr is not merely restating a statutory violation as a takings claim. This conclusion is supported by the fact that Starr seeks just compensation corresponding to the value of the property allegedly taken by the Government, rather than damages based upon a statutory violation. See Compl. at 57, ¶ H. The Court concludes that Starr has stated a takings claim insofar as it concedes that the government actions at issue were authorized and constituted a taking irrespective of their lawfulness.
3. Whether Starr fails to state a takings claim because it has not shown that it or AIG lost a legally cognizable property interest
The Government also contends that Starr fails to state a takings claim because it has not identified a legally cognizable property interest taken by the Government. To establish a takings claim, a plaintiff must demonstrate as a threshold matter the existence of a legally cognizable property interest. See Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1371 (Fed.Cir.2004) (citing Maritrans Inc. v. United States, 342 F.3d 1344, 1351 (Fed.Cir.2003)). If the plaintiff fails to do so, the court’s takings inquiry ends. Id. (citing Maritrans, 342 F.3d at 1352).
StaiT identifies at least three property interests allegedly taken by the Government: (1) the “economic value and voting power” associated with the Plaintiffs’ shares of AIG common stock; (2) the 79.9% equity interest in AIG, ultimately represented by 562,868,-096 shares of AIG common stock;18 and (3) the $32.5 billion of collateral posted by AIG prior to the formation of ML III. See Pl.’s Opp. 29. For purposes of Starr’s derivative claim, it is not in dispute that the 79.9% equity interest in AIG is a legally cognizable property interest. Tr. 39 (Simkin).19 The question remains, however, whether Starr has a legally cognizable property interest in: (1) the equity and voting power associated with the Plaintiffs’ shares of AIG common stock for purposes of Starr’s direct claim; and (2) the $32.5 billion of collateral posted by AIG for purposes of Starr’s derivative claim.
a. The equity and voting power associated with Plaintiffs’ shares of AIG common stock
i. The parties’ arguments
The Government contends that Starr does not have a cognizable property interest in the economic value and voting power associated with its shares of AIG common stock. Def.’s Rep. 23-24. It emphasizes that Starr and the other AIG shareholders retain their shares of AIG common stock and do not have a cognizable property interest in either a fixed value or a particular percentage of equity or voting control in AIG. Def.’s Mot. 36-37. According to the Government, “[common stock comes with no guarantees or rights to proceeds, and share value is therefore not a protected property interest.” Id. at 37. In addition, the Government maintains that Starr’s common stock did not carry with it “a right to exclude others from entering the pool of AIG Common Stock,” and thus, the stock did not include “a right to a *72particular percentage of equity or voting control in AIG.” Id. The Government avers specifically that “voting rights are not property for purposes of the Takings Clause” but are, “at most, collateral interests” not protectable under the Fifth Amendment. Def.’s Rep. 25.
By contrast, Starr contends that it has a cognizable property interest in the equity and voting power associated with its shares of AIG common stock. Pl.’s Opp. 16. Starr cites Gatz, 925 A.2d at 1281, Rossette, 906 A.2d at 100, and Dubroff v. Wren Holdings, LLC, Nos. 3940-VCN, 6017-VCN, 2011 WL 5137175, at *8 (Del.Ch. Oct. 28, 2011), for its position that “settled Delaware law ... protects against ‘expropriation’ of the ‘economic value and voting power’ of public shareholders’ stock through the exercise of a party’s control.” Id. While Starr concedes that the Government did not physically take Plaintiffs’ common shares, it asserts that the Government “engineered a transaction [the reverse stock split] that accomplished precisely the same result in economic substance.” Id. at 5, 17; Tr. 110 (Boies) (“[T]he substance of what happened here was that [the Government] took 80 percent of the stock rights ... Starr had, 80 percent of the dividend rights, 80 percent of the liquidation rights, 80 percent of the voting rights.”). According to Starr, Delaware law “prohibits the use of [such] stratagems” by entitling common shareholders to vote as a class on any proposal that would serve to dilute the shareholders’ interests. Pl.’s Opp. 19; Tr. 105 (Boies).
ii. Applicable law
While the Fifth Amendment protects against the taking of private property for public use without just compensation, the U.S. Constitution does not “create or define the scope of the ‘property’ interests protected.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed.Cir.2005). Instead, courts look to “background principles” and “ ‘existing rules or understandings that stem from an independent source such as state law to define the range of interests that qualify for protection as ‘property under the Fifth” Amendment. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “These ‘background principles’ and ‘rules and understandings’ focus on the nature of the citizen’s relationship to the alleged property, such as whether the citizen had the rights to exclude, use, transfer, or dispose of the property.” Members of the Peanut Quota Holders Ass’n v. United States (“Peanut Quota”), 421 F.3d 1323, 1330 (Fed.Cir.2005) (citing United States v. Gen. Motors, 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945)). Courts have long-recognized that the protections of the Takings Clause apply to intangible property, in addition to real and personal property. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (“That intangible property rights protected by state law are deserving of the protection of the Taking Clause has long been implicit in the thinking of this Court.”).
To determine whether an intangible interest constitutes a property interest protected by the Fifth Amendment, the Federal Circuit has noted that “express statutory language can prevent the formation of a protectable property interest.” Peanut Quota, 421 F.3d at 1330 (citing United States v. Fuller, 409 U.S. 488, 494, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973)). Absent such language, courts look to whether the alleged property interest includes the right to transfer and the right to exclude, which “indicia are part of an individual’s bundle of property rights.” Id. (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)). The Court thus looks to whether the equity and voting power associated with the Plaintiffs’ shares of AIG common stock include the right to transfer and the right to exclude.
iii. Analysis
Transferability
“The right to transfer is a traditional hallmark of property.” Id. at 1332 (citing Loretto, 458 U.S. at 435-36, 102 S.Ct. 3164). It is undisputed that stock is personal property and transferable under Delaware law. See Del. C. Ann. tit. 8, § 159 (“The shares of stock in every corporation shall be deemed personal property and transferable.”). In *73addition, Delaware law recognizes the right of shareholders to transfer the voting rights associated with their stock. See Del. C. Ann. tit. 8, § 218. As stated by the Delaware Court of Chancery, “Shareholders are free to do whatever they want with their votes, including selling them to the highest bidder.” Hewlett v. Hewlett-Packard Co., C.A. No. 19513-NC, 2002 WL 549137 at *4, 2002 Del. Ch. LEXIS 44 at *11 (Del.Ch. Apr. 8, 2002); see also Schreiber v. Carney, 447 A2d 17, 25 (Del.Ch.1982) (“Delaware law has for quite some time permitted stockholders wide latitude in decisions affecting the restriction or transfer of voting rights.”). The transferability of shareholder equity and voting rights under Delaware law supports the view that they constitute protected property under the Fifth Amendment. See Peanut Quota, 421 F.3d at 1333; see also Am. Pelagic, 379 F.3d at 1374 (noting that the authority to assign, sell, or transfer indicates a protecta-ble property interest). The Court therefore turns to the question of excludability.
Excludability
The U.S. Supreme Court has called the right to exclude “perhaps the most fundamental of all property interests.” Lingle v. Chevron U.S.A, Inc., 544 U.S. 528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (internal citations omitted). As the Federal Circuit stated in Mitchell Arms, Inc. v. United States, “[t]he chief and one of the most valuable characteristics of the bundle of rights commonly called ‘property’ is ‘the right to sole and exclusive possession — the right to exclude strangers, or for that matter friends, but especially the Government.’ ” 7 F.3d 212, 215 (Fed.Cir.1993) (quoting Hendler v. United States, 952 F.2d 1364, 1374 (Fed.Cir.1991) (emphasis original)).
Here, the Government maintains that Starr did not have a property interest in a specific value or particular percentage of voting control in AIG because Plaintiffs’ common stock did not include the “right to exclude.” Def.’s Mot. 37; Def.’s Rep. 24-25. In the Government’s view, Delaware law did not entitle the common shareholders to prevent, through a separate class vote or otherwise, the reverse stock split that allowed the Government to exchange its preferred shares for common stock and thereby dilute the minority shareholders’ interests. Def.’s Rep. 25-26. While Starr concedes that Delaware statutory law did not entitle the common shareholders to vote as a class on the reverse stock split, Starr submits that the common shareholders were entitled to such a vote due to AIG’s past representations to the Delaware Court of Chancery. Tr. 105 (Boies). Assuming the truth of the allegations in Starr’s Complaint, the Court agrees with Starr.
According to Starr, a lawsuit was filed in the Delaware Court of Chancery on November 4, 2008 (Walker v. AIG, CA No. 4142-CC) “to ensure that the rights of the Common Stock shareholders of AIG were respected with regard to the Government’s acquisition of a controlling interest in the Company.” Compl. ¶ 85. The lawsuit allegedly “sought ... ‘an order declaring that ... [the Series C Preferred Stock] is not convertible into common stock absent a class vote by the common stock to increase the number of authorized common shares, as well as all relief appropriate in light of the Board of Directors’ ... failure to act in the interests of the common stockholders who are entitled to reject the dilution of their shares.” Id. The Delaware Court of Chancery found the request for relief moot, however, in light of AIG’s representation that there would be a separate vote of the common shareholders on any proposal “ ‘that increases the number of authorized common shares and decreases the par value of the common shares.’ ” Id. ¶ 86 (quoting the Delaware court’s February 5, 2009 “Consent Order”).
Although the Consent Order required a separate vote to “increase the number of authorized common shares,” (emphasis added) as opposed to decrease the number of issued shares (what allegedly occurred here), the order should be read in light of the fact that the lawsuit also requested appropriate relief based upon the common shareholders’ right “ ‘to reject the dilution of their shares.’ ” Id. ¶ 85. In finding the request for relief moot due to AIG’s representations, the Delaware Court of Chancery appears to *74have sought not only to protect the common shareholders’ right to a class vote on any proposal to increase the number of authorized shares, but also to protect the common shareholders from the dilution of their shares generally. While the Government may have complied technically with the Consent Order by allowing the common shareholders to vote as a class on Proposal 3, the Government appears to have violated the spirit, if not the letter, of the order by not holding a common shareholder vote on the reverse stock split, which led to the dilution of the common shareholders’ equity and voting interests.
The Court does not have before it the entirety of the filings in the Delaware Court of Chancery and makes no definitive determination at this time as to whether the common shareholders were entitled to a separate class vote on the reverse stock split. Assuming the truth of the allegations in Starr’s Complaint, however, it appears that the common shareholders were entitled to such a vote under the Consent Order; they appear to have had a right to exclude at least the holders of the Series C Prefen’ed Stock from diluting their shares of common stock. The potential existence of that right to exclude further supports Starr’s view that the common shareholders had a cognizable property interest in the equity and voting power associated with their shares.
Delaware case law
In addition to the issues of transferability and excludability, there is significant Delaware case law to support the view that the equity and voting power associated with the common shareholders’ stock is a property interest protectable under the Fifth Amendment. Delaware courts have consistently protected the economic and voting power embodied in public shareholders’ stock by entitling them to recover when that power is expropriated from them by a controlling party. Feldman v. Cutaia, 951 A.2d 727 (Del.2008); Gatz, 925 A.2d 1265 (2007); Rossette, 906 A.2d 91 (2006); Tri-Star, 634 A.2d 319 (1993). The right to recover is not premised on the •physical expropriation of a shareholder’s stock; instead, it is “premised on the theory that the corporation, by issuing additional stock for inadequate consideration, made the complaining stockholder’s investment less valuable.” Feldman, 951 A.2d at 732.
The Government argues that any claim that it “indirectly affected the value of property ... is not compensable pursuant to the Takings Clause.” Def.’s Rep. 24. However, the authority cited by the Government to support this principle is distinguishable from the instant case. In Air Pegasus, the plaintiff did not have a protectable property interest because the “economic injury [was] not the result of the government taking [the plaintiffl’s property, but [was] the more attenuated result of the government’s purported taking of other people’s property.” 424 F.3d at 1212. Unlike in Air Pegasus, the alleged harm here can be said to have resulted from a direct appropriation of the common shareholders’ property rather than that of a thii’d party.
The common shares ultimately issued to the Government did not belong to the minority shareholders. Nonetheless, Starr asserts that the taking of its equity and first voting interest occurred pursuant to the Credit Agreement when the Government obtained the contractual right to a 79.9% share of AIG common stock. Insofar as the then-existing common shareholders held 60% of AIG’s authorized common stock, the Government, in obtaining the contractual right to 79.9% of it, by necessity “took” (or at least acquired the authority to take) a portion of the shareholders’ equity and voting interests. Moreover, in effecting the reverse stock split on June 30, 2009, the Government allegedly reduced the number of shares that each shareholder held by a 20:1 ratio. In Starr’s view, the reverse stock split was akin to the Government appropriating directly 79.9% of the shareholders’ stock. Starr claims that through these “machinations,” the Government “destroyed” the value of the common shareholders’ stock. Compl. ¶¶ 97,169. The actual mechanics and effect of the Credit Agreement, reverse stock split, and issuance of common stock are factual questions to be considered at a later stage. For purposes of the Government’s motion to dismiss, however, Starr has sufficiently alleged the destruc*75tion of a property interest protected under Delaware law.20
Finally, the Government’s argument that voting rights are not property under the Fifth Amendment ignores Delaware case law specifically protecting voting interests. Delaware courts have observed that voting is a fundamental shareholder right, In re Gaylord Container Corp. S’holders Litig., 747 A.2d 71, 81 (Del.Ch.1999) (internal citation omitted), and have recognized the right of shareholders to bring a direct claim for the dilution of their voting power, see id.; Oliver v. Boston Univ., C.A. No. 16570-NC, 2006 Del.Ch. LEXIS 75 at *76 (2006). Based on the foregoing, the Court concludes that Starr has identified, at this stage, a protectable property interest in the equity and voting power associated with the Plaintiffs’ shares of common stock.
b. The $32.5 billion of collateral posted by AIG prior to the formation of ML III
Finally, the Government maintains that AIG did not have a property interest in the $32.5 billion in collateral AIG posted prior to the formation of ML III. Def.’s Rep. 26. In the Government’s view, “AIG had to post cash collateral to its CDS counterparties because of the fall of the value of the [underlying CDOs], as well as the fall of AIG’s credit rating.” Id. at 26-27. Once AIG posted the collateral, it no longer had a property interest in it. Id. at 27. Moreover, even if AIG had reason to expect that its obligations could be compromised for less than face value, “it had no constitutionally-protected property interest” in that expectation. Id.
At the outset, the Court wishes to clarify the precise property interest allegedly taken by the Government. Starr has maintained that the Government effected a taking of AIG property in connection with the ML III transactions in November and December 2008. Starr’s Complaint is unclear, however, as to whether Starr seeks just compensation for the alleged taking of AIG’s $32.5 billion in cash collateral; $5 billion equity investment in ML III; or residual interests in the CDO assets purchased by ML III. Read together, however, Starr’s Complaint, opposition brief, and statements during oral argument indicate that Starr specifically claims a taking of a portion of the $32.5 billion in cash collateral AIG posted prior to the formation of ML III.
Starr claims that AIGFP’s CDS counter-parties received close to face value through the ML III transactions but that AIG’s obligations could have been compromised for “substantially less.” Compl. ¶¶ 116-17. Specifically, during oral argument, counsel for Starr averred that the CDOs purchased by ML III “were worth, at most ... 60 cents on the dollar” and that “some of the counter! Iparties offered to compromise.” Tr. 65 (Boies). “Given the Government’s control of AIG,” however, AIG was made to forfeit the collateral “in its entirety.” Pl.’s Opp. 20-21. Given these representations, the Court concludes that the property interest Starr alleges the Government took pursuant to the ML III transactions is the portion of the $32.5 billion in cash collateral retained by AIGFP’s counterparties in excess of the compromise amount the counterparties might have accepted. The relevant question for the Court therefore, is whether AIG has a legally cognizable property interest in the portion of the $32.5 billion in collateral that might have been preserved by compromise.
Again, the Court does not have before it the documents giving rise to AIG’s obligations to post collateral or those underlying the ML III transactions. Accordingly, the Court finds it premature to rule definitively on the rights held by the relevant parties and hence, the existence of AIG’s property interest in the ML III collateral. Nonetheless, the Court concludes that the collateral itself would be a protectable property interest under the Fifth Amendment.
The Federal Circuit has held that generalized statutory obligations to pay money do not constitute unconstitutional takings of private property. See Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1339-40 (Fed.Cir.2001) (en banc) (internal citation omitted). However, a specific sum of money, “derived from ownership of particular deposits in an established account,” is a pro-*76teetable property interest under the Fifth Amendment. Adams v. United States, 391 F.3d 1212, 1224-25 (Fed.Cir.2004) (recognizing a depositor’s property right in the interest accruing in a custodial account).
Here, the $32.5 billion in collateral posted by AIG is more akin to the property described in Adams than that invoked in Commonwealth Edison. AIG did not make an outlay to the Government pursuant to any industry-wide statutory scheme. Rather, according to Starr, AIG posted cash collateral to AIGFP counterparties to secure specific CDO assets. The counterparties merely held AIG’s money, pending fluctuations in AIG’s credit rating and in the value of the underlying CDOs. In this sense, the counterparties held AIG’s cash collateral in constructive accounts pending events in the financial markets. The collateral is thus comparable to the “deposits in an established account” found to be protectable property interests in Adams.
Moreover, as noted in Hearts Bluff Game Ranch, Inc. v. United States, a key indicator of a property right is the “ability to sell, assign, transfer, or exclude.” 669 F.3d 1326, 1330 (Fed.Cir.2012). Here, pursuant to the ML III transactions in November and December 2008, the AIGFP counterparties retained all of AIG’s collateral in exchange for their CDOs. See Compl. ¶ 116. These transactions illustrate that the collateral was capable of “sale,” “assignment,” or “transfer.” Based on the foregoing, the Court concludes that Starr has adequately alleged a property interest in the disputed portion of the $32.5 billion in collateral posted by AIG prior to the formation of ML III.
4. Whether Starr fails to state a takings claim because its allegations do not demonstrate that the challenged transactions were involuntary
The Government next asserts that Starr fails to allege the type of government action necessary to state a takings claim because the property allegedly taken was acquired through “agreed-upon transaction[s].” Def.’s Mot. 26. In particular, the Government cites four transactions allegedly constituting takings and argues that they were carried out with the requisite consent from AIG: (1) the reverse stock split; (2) the loan agreement; (3) the Government’s conversion of its preferred stock into common stock; and (4) the ML III transactions. The Court addresses the voluntariness of each of the four transactions in turn.
a. The reverse stock split
As explained above, Starr brings a direct claim for the Government’s alleged expropriation of the shareholders’ equity and voting power, expropriated in part by means of the reverse stock split on June 30, 2009. For purposes of its direct claim, Starr maintains that the Government cannot assert consent as a defense to the reverse stock split because the Government “nullified the shareholders’ right to withhold consent” by “cir-eumvent[ing] the class vote requirement through a reverse stock split.” Pl.’s Opp. 30. The Government rejects Starr’s position, contending that Delaware law did not entitle the common shareholders to a separate class vote on the reverse split. Def.’s Rep. 12 (citing Del. C. Ann. tit. 8, §§ 242(a)(3), (b)(2)).
As a preliminary matter, the Court notes that the voluntariness (or not) of the reverse stock split goes only to the alleged taking of what Starr calls “the voting rights for [the] class-specific, common-stock only votes.” Slide 20. As explained above, supra Part II.C.2, these are the only rights that Starr has alleged the Government took by means of the reverse split for purposes of its direct claim. See Tr. 101 (Boies). In addition, the voluntariness (or not) of the reverse stock split in June 2009 has no bearing on whether AIG’s board voluntarily accepted the loan agreement in September 2008. Insofar as Starr’s opposition brief indicates that it does, the Court rejects its position. There have been no allegations that any form of shareholder approval was necessary to enter into the loan agreement; only that certain shareholder approvals were required to effect the reverse stock split. See Tr. 105 (Boies). With the above in mind, the Court turns to whether the Government effected the reverse stock split in contravention of any necessary shareholder approvals.
*77During oral argument, counsel for Starr conceded that Delaware statutory law did not entitle the common shareholders to vote as a separate class on the reverse stock split. Id. Nevertheless, Starr maintains that the reverse stock split “was done in contravention of the [Government’s] earlier representation in the Delaware court.” Id. As discussed above, the facts alleged in Starr’s Complaint indicate that the Consent Order, issued by the Delaware Court of Chancery on February 5, 2009, entitled the common shareholders to vote as a separate class on the reverse stock split. The parties agree that such a vote by the common shareholders did not, in fact, occur. In light of that fact, the Court rejects the Government’s consent argument as to the reverse stock split.
b. The loan agreement
i. Whether AIG freely agreed to accept the $85 billion loan
The parties’ arguments
The Government contends that Starr fails to state a takings claim because Starr’s allegations do not support its assertion that the Government “compelled” AIG to agree to the loan terms offered on September 16, 2008. Def.’s Mot. 28. According to the Government, Starr “does not allege that it or AIG faced any adverse Government action should it have rejected those terms, or that any governmental power was invoked or even existed to compel acceptance of these terms.” Id. at 28-29 (emphasis in original). “Rather,” says the Government, “the allegations demonstrate that AIG voluntarily transferred equity in exchange for a loan.” Id. at 29.
In Starr’s view, its Complaint demonstrates that the Government “[ejompelled” AIG to accept the Credit Agreement by employing a “strategy [that] forced the AIG Board into an unnecessary game of ‘chicken’ with the global economy, leaving the Board with no choice but to yield.” Pl.’s Opp. 31-32. In the weeks leading up to the loan agreement, Starr alleges the Government “contributed to AIG’s credit downgrade,” thereby “exaeerbat[ing] AIG’s liquidity issues.” Id. at 33. Regarding the loan transaction specifically, Starr claims that the Government offered AIG “grossly” unfair terms and improperly threatened AIG’s board by “misleading” it into believing the offer was the only one it would receive and “pressuring” it to decide whether to accept the loan agreement within hours. Id. at 32.
Applicable law
To establish coercion or duress, a plaintiff must show that: (1) it “involuntarily accepted” the other party’s terms; (2) “circumstances permitted no other alternative”; and (3) “said circumstances were the result of coercive acts of’ the other party.21 Frukauf Sw. Garment Co. v. United States, 126 Ct.Cl. 51, 62, 111 F.Supp. 945 (1953). A coercive act is one that is “wrongful,” but need not be illegal. Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1330 (Fed.Cir.2003). For example, an act may be wrongful and hence, coercive if it “violates notions of fair dealing.” Id. (quoting Sys. Tech. Assocs., Inc. v. United States, 699 F.2d 1383, 1387-88 (Fed.Cir.1983)).
This Court’s jurisprudence has shown that the bar for establishing duress is a high one. To substantiate a claim of duress, a plaintiff “must go beyond the mere showing of a reluctance to accept and of financial embarrassment. There must be a showing of acts on the part of the defendant which produced these two factors.” Frahauf 126 Ct.Cl. at 52, 111 F.Supp. 945. In other words, “[t]he assertion of duress must be proven to have been the result of the defendant’s conduct and not by the plaintiffs necessities.” Id. Moreover, “[a]bsent wrongful conduct, economic pressure and the threat of considerable financial loss do not constitute duress.” IMS Eng’rs-Architects, P.C. v. United States, 92 Fed.Cl. 52, 66 (2010) (internal citations omitted). Instead, it must be shown that the plaintiffs assent “was *78induced by an improper threat which left the recipient no reasonable alternative save to agree.” David Nassif Assocs. v. United States, 644 F.2d 4, 12 (Ct.Cl.1981). Such threats include those that “would breach a duty of good faith and fair dealing under a contract as well as threats which, though lawful in themselves, are enhanced in their effectiveness in inducing assent to unfair terms because they exploit prior unfair dealing on the part of the party making the threat.” Id. (internal citation omitted).
Analysis
Starr alleges that the Government coerced AIG’s board both to accept the terms offered on September 16, 2008, see ¶ 49(a), 58(a), and to accept the Credit Agreement on September 22, 2008, see ¶ 64 (stating that the Credit Agreement was “imposed upon, and not voluntarily agreed to by, the AIG board”). In light of Starr’s allegation that the Government acquired control of AIG on September 16, 2008, see id. ¶ 55(a); Tr. 109 (Boies), the Court views that date as the relevant one for determining whether AIG voluntarily agreed to the terms of the loan transaction. If AIG voluntarily agreed to the terms offered on September 16, 2008, giving the Government control of AIG, it is untenable to maintain that the Government’s use of that control rendered AIG’s subsequent actions involuntary. Those actions would be, for all intents and purposes, Government actions, acquiesced in by AIG beforehand pursuant to the September 16, 2008 term sheet.22 Therefore, to determine whether Starr has stated a cognizable takings claim, the relevant question is whether AIG voluntarily agreed to the terms proposed on September 16,2008.
Starr has alleged repeatedly that AIG’s board involuntarily accepted the Government’s term sheet on September 16, 2008, see Compl. ¶¶ 49(a), 58(a); PL’s Opp. 31, and that the circumstances surrounding its acceptance led to no other alternative, see Compl. ¶ 58(a). Importantly, Starr also has alleged that the circumstances leading the board to accept the Government’s unfair terms were the result of the Government’s wrongful conduct. As noted above, Starr alleges that the Government’s actions and inaction in the weeks leading up to the loan agreement contributed to AIG’s dire financial situation. PL’s Opp. 33. Specifically, Starr claims that prior to September 16, 2008, “[t]he Government discouraged sovereign wealth funds and other non-United States investors from participating in a private-sector solution to AIG’s liquidity needs.” Compl. ¶ 49. Starr also asserts that “the Government interfered with AIG’s ability to raise capital and contributed to the decision to downgrade AIG’s credit rating, which itself triggered collateral calls that imposed pressure on AIG to declare bankruptcy within 24 hours.” Id. ¶ 53.
Moreover, Starr indicates that the Government induced AIG’s assent to the “grossly” unfair terms by an improper threat, whereby the Government misled AIG’s board into believing that the September 16, 2008 offer was the only one it would get and pressured the board to decide within hours. PL’s Opp. 32. Starr attempts to portray the Government as having engaged in unfair practices leading up to the loan agreement, thereby enabling the Government to exploit the situation in which AIG found itself on September 16, 2008. See Compl. ¶ 58(a) (“By irrationally relying on loans in lieu of guarantees, consistently declining to grant AIG liquidity access on the same terms as other similarly situated entities with lower quality collateral, contributing to a credit downgrade and interfering with AIG’s ability to raise capital and the general ability to secure private sector support by repeatedly and inaccurately representing that there would be no Government assistance to AIG, organizing a private-sector effort at a critical time led by two banks with severe conflicts of interest that the Government did not believe *79had a significant chance of success ... demanding consideration it was not legally authorized (by statute or otherwise) to demand, ensuring through its actions and representations that the Board would have only hours to make the decision to avoid a global economic meltdown, instructing AIG to undo its plans for bankruptcy without first informing AIG of its intentions, and falsely and irresponsibly representing that it was willing to risk destroying the global economy if the AIG Board did not accept its extortionate demands, the Government coerced the Board into accepting the Government’s demands.”).
The Court acknowledges that the Government vigorously disputes Starr’s characterization of the voluntariness of the loan agreement, see e.g., Def.’s Mot. 29-30 (contending that AIG’s acceptance of the loan agreement was the result of its business judgment and not an involuntary action); the circumstances surrounding AIG’s acceptance of the loan agreement, id. at 30 (asserting that “AIG was free to reject both the FRBNYs conditions and its funding, no matter how hard that choice may have been”); and the cause of those circumstances, id. at 29 (arguing that “[t]o the extent that AIG’s management ... felt ‘compelled’ ” to accept the terms, “that was the result of business risks taken by AIG and developments in the financial sector of the economy, not any action taken by the Government.”). On a motion to dismiss, however, the Court must assume the truth of the plaintiffs’ allegations and leave the determination as to their merit for a later stage. At this point, Starr has alleged sufficiently that the Government coerced AIG’s board into accepting the terms of the September 16, 2008 loan agreement. Accordingly, the Court rejects the Government’s consent argument with regard to the loan agreement.
ii. Whether the loan transaction was a rescue of AIG from the consequences of its own business risks
In the alternative, the Government argues that even if AIG’s board did not accept the loan agreement voluntarily, the loan transaction would not constitute a taking because it was a rescue of AIG from the consequences of its own business risks. Def.’s Mot. 31. In support of its position, the Government notes that the central underpinning of the Takings Clause is “ ‘to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Id. (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). The Government contends that this is not a case where the public should be made to shoulder the costs of the loan transaction because AIG’s own risky business practices created the crisis, which necessitated the transaction. Id.
Furthermore, the Government emphasizes that AIG was the intended beneficiary of the loan agreement. The Government states that “[b]y September 16, 2008, as a result of the business risks that it took, AIG was facing bankruptcy.” Id. at n. 12. At that point, according to the Government, the loan transaction was not a taking but a governmental “rescue.” Id. at 31. The Government points out that where a private party “ ‘is the particular intended beneficiary of the governmental activity, ‘fairness and justice’ do not require that losses which may result from that activity ‘be borne by the public as a whole,’ even though the activity may also be intended incidentally to benefit the public.’ ” Id. (quoting Nat’l Bd. of YMCAs v. United States, 395 U.S. 85, 92, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969)). As the particular beneficiary of the loan agreement, the Government maintains that “AIG and its shareholders, not the public,” should bear the costs associated with the agreement. Id.
Whatever may be the merit of the Government’s position, it is not the position alleged in Stair’s Complaint. As discussed above, Starr sets forth a very different account of the causes of its financial situation, placing significant blame on specific government actions and inaction prior to September 16, 2008. See Compl. ¶¶ 49, 53, 58(a). Whether AIG or the Government caused or contributed to the dire financial situation of AIG in September 2008, and whether AIG was the particular intended beneficiary of the loan agreement, are factual issues to be considered at a later stage. Given the existing factual disputes on these issues, the Court *80denies the Government’s request to dismiss Starr’s takings claim on the basis that the loan agreement was a rescue of AIG from the consequences of its own business risks.
c. The Government’s acquisition of AIG common stock in January 2011
The Government next argues that Starr has failed to state a takings claim with respect to the 562,868,096 shares of common stock the Government received in exchange for its preferred stock on January 14, 2011. Def.’s Mot. 32. According to the Government, Starr’s Complaint demonstrates that the Government received the common stock through a voluntary exchange of its preferred stock, id. (citing Compl. ¶ 172), and “does not allege that the Government seized or otherwise confiscated those common stock shares,” id.
As set forth above, it is a contested factual issue whether the Government coerced AIG into accepting the terms of the loan agreement on September 16, 2008. If the Court assumes the truth of Starr’s allegations, however, the Government gained control of AIG on September 16, 2008 and used that control to extract a 79.9% equity interest in AIG pursuant to the Credit Agreement on September 22, 2008. See Pl.’s Opp. 22-23. As the Court explained above, Starr cannot advance multiple takings claims based upon the same equity interest. Insofar as the Government’s acquisition of the 562,868,096 shares of common stock resulted from the Credit Agreement, which gave the Government the “right” to 79.9% of AIG’s common stock, Tr. 53, 105 (Boies), the Court reads Starr’s allegations as stating that any taking of AIG equity occurred on September 22, 2008, see Compl, ¶ 65 (stating that “the Credit Agreement ... required AIG ultimately to issue to a trust ... Series C Preferred Stock convertible to 79.9% of AIG’s equity”). Because Starr cannot maintain a claim for the taking of the same property interest more than once, the Court need not address the volun-tariness of the January 14, 2011 conversion,
d. The use of AIG collateral in the ML III transactions
The Government also contends that Starr fails to state a takings claim with regard to the transactions among AIG, ML III, and specific AIG counterparties. Def.’s Mot. 32. In the Government’s view, Starr’s allegations demonstrate that the transactions resulted from “AIG’s negotiated agreements with its counterparties.” Id. at 32-33. In other words, Starr’s allegations show that “AIG agreed to create ML III and took the FRBNY’s financing to enable ML III to discharge AIG’s obligations to counterparties.” Id. at 33. The Government posits that while Starr argues that the terms of the agreements were less favorable to AIG than they should have been, Starr does not allege that the Government did anything to appropriate AIG’s property. Id.
By contrast, Starr maintains that it has made “numei’ous specific allegations” showing that “the Government controlled AIG with respect to all major transactions.” Pl.’s Opp. 34-35. Starr contends that the Government “used its control” to pay off AIG coun-terparties “using $32.5 billion of AIG collateral.” Id. at 34. In reply, the Government maintains that Starr’s allegations “do not establish the Government’s control over the decisions by AIG’s board to agree to the [ML III] transaction.” Def.’s Rep. 17.
The parties’ positions are decidedly at odds on a factual issue that cannot be resolved at this stage. For purposes of the Government’s motion to dismiss, Starr has pled sufficiently that the Government obtained control of AIG and then used that control to engineer the ML III transactions. See Compl. ¶¶ 112-15 (specifically alleging that the “FRBNY is the controlling party and managing member of ML III” and through that control required AIG to use ML III “to fund the purchase of CDOs from the counter-parties”). The Court notes that the issue of whether AIG voluntarily agreed to the ML III transactions may turn on whether AIG voluntarily entered into the initial loan transaction, allegedly giving the Government control of AIG. Both issues, however, are factual ones that the Court defers until a later stage.
5. Whether Stan- may recover based upon the rough proportionality test established in Dolan
Starr contends that irrespective of whether the Government coerced AIG’s board into *81accepting the loan agreement, the Government owes just compensation because “the conditions that the Government imposed upon AIG were disproportionate to the benefits conferred” in violation of the unconstitutional conditions doctrine. Pl.’s Opp. 40. Specifically, Starr alleges that the Government violated the “rough proportionality” test established in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), by requiring a 79.9% interest in AIG in exchange for a fully-secured, high interest loan, see Pl.’s Opp. 35.
a. Applicable law
“Under the well-settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right — here the right to receive just compensation when property is taken for public use — in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property.” Dolan, 512 U.S. at 385, 114 S.Ct. 2309 (internal citations omitted).23 In Dolan, the landowner, Florence Dolan had applied to the City of Tigard for a permit to redevelop her property. Id. at 379, 114 S.Ct. 2309. The City Planning Commission granted a permit to Ms. Dolan on the conditions that she dedicate portions of her property for improvement of a storm drainage system and for a pedestrian/bieyele pathway. Id. at 380, 114 S.Ct. 2309. Ms. Dolan contended that in so doing, the City “forced her to choose between the building permit and her right under the Fifth Amendment to just compensation for the public easements.” Id. at 385-86, 114 S.Ct. 2309.
In evaluating Ms. Dolan’s claim, the Supreme Court expanded upon its test, partially articulated in Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), for determining whether a condition upon land use constitutes an unconstitutional condition in violation of the Fifth Amendment, Dolan, 512 U.S. at 391, 114 S.Ct. 2309. The Court stated that first, it must determine “whether the ‘essential nexus’ exists between the ‘legitimate state interest’ ” and the condition imposed by the Government. Dolan, 512 U.S. at 386, 114 S.Ct. 2309 (quoting Nollan, 483 U.S. at 837, 107 S.Ct. 3141). If such a nexus exists, then the Court must decide whether the Government has shown a “rough proportionality” between “the required dedication” and “the projected impacts of the proposed development.” Id. at 386, 391, 114 S.Ct. 2309. The Court ultimately remanded the case for further proceedings, concluding that the City had not made sufficient findings regarding the impact of the proposed development to support its land use requirement. Id. at 396, 114 S.Ct. 2309.
b. Analysis
Starr argues that the Government’s conditions under the loan agreement were disproportionate to the benefits conferred in violation of Dolan’s rough proportionality test. Pl.’s Opp. 40. In so doing, Starr maintains that the issue of proportionality is a factual one not capable of being resolved on a motion to dismiss. Id. The Court disagrees. As explained below, the Court finds that, as a matter of law, Dolan’s rough proportionality test is inapplicable to the case at hand,
i. Dolan’s rough proportionality test applies only to land use exactions.
From the time of Dolan, there has been ample indication that the rough propor*82tionality test applies only in the context of land use exactions.24 In City of Monterey v. Del Monte Dunes, the U.S. Supreme Court noted that while “concerns for proportionality animate the Takings Clause ... we have not extended the rough-proportionality test of Dolan beyond the special context of exac-tions — land-use decisions conditioning approval of development on the dedication of property to public use.” 526 U.S. 687, 702, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (internal citations omitted). Del Monte Dunes had brought a claim for a regulatory taking where “the city, in a series of repeated rejections, denied its proposals to develop a parcel of land, each time imposing more rigorous demands on the developers.” Id. at 693-94, 119 S.Ct. 1624. In that context the Court explained that the rule applied in Dolan “was not designed to address ... the much different questions arising where ... the landowner’s claim is based not on excessive exactions but on denial of development.” Id. at 703, 119 S.Ct. 1624. Thereafter, in Lingle v. Chevron, the Supreme Court observed that “[b]oth Nollan and Dolan involved Fifth Amendment takings challenges to adjudicative land-use exactions” and quoted positively its statement that “[the Court] ha[s] not extended this standard ‘beyond the special context of [land-use] exactions.’ ” 544 U.S. 528, 546-47, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (quoting Del Monte Dunes, 526 U.S. at 702, 119 S.Ct. 1624).
The circuit courts of appeals have followed suit. For example, in Clcijon Prod. Corp., the Tenth Circuit took the view that “both Nollan and Dolan follow from takings jurisprudence’s traditional concern that an individual cannot be forced to dedicate his or her land to a public use without just compensation.” 70 F.3d at 1578 (emphasis added). The court went on to conclude that “the ‘essential nexus’ and ‘rough proportionality’ tests are properly limited to the context of development exactions.” Id. at 1579. Likewise, the U.S. Court of Appeals for the Ninth Circuit declined to extend the rough proportionality test to a case involving monetary exactions. See San Remo Hotel L.P. v. San Francisco City & Cnty., 364 F.3d 1088, 1098 (9th Cir.2004). In light of the Supreme Court’s reluctance to apply the Nollan/Dolan test “beyond the special context” of land use exactions — even in a case involving land restrictions, Del Monte Dunes, 526 U.S. at 702, 119 S.Ct. 1624 — and the repeated clear statements that the test is meant to apply only in cases involving land use exactions, the Court declines to extend the test to the unique facts of this case.
ii. The factual predicates for using Dolan’s rough proportionality test are not alleged here.
Even if the Nollan/Dolan test were to be applied outside the context of land use exac-tions, the factual predicate for using the test is not alleged here. In Nollan and Dolan, local commissions granted the landowners building permits to develop their properties only on the conditions that the landowners dedicate portions of their properties to public easements. Nollan, 483 U.S. at 828, 107 S.Ct. 3141; Dolan, 512 U.S. at 377, 114 S.Ct. 2309. In both cases, if the landowners rejected the conditions, they would have given up not only the permits, but also the right to develop their properties. In that way, the localities were in a position to exploit their police power to obtain the easements without paying just compensation.
Here, in placing certain conditions on AIG’s receipt of the $85 billion loan, the Government was not exercising preexisting regulatory authority, or anything akin to a state or locality’s police powers. In Nollan and Dolan, the landowners were restricted from building on their land, and the localities would lift those restrictions only if the landowners agreed to certain conditions. By contrast, here, if AIG had refused the conditions of the loan agreement, AIG would not have been subject to any ongoing restrictions; *83AIG simply would not have obtained the loan. In this way, the Government was not in a position to exploit any existing regulatory power to induce the loan transaction. Because StaiT has not alleged the occasion for coercion that was present in Nollan and Do-lan, the Court finds the test articulated in those cases inapplicable here.
In sum, concerning the Government’s motion to dismiss pursuant to RCFC 12(b)(6), the Court concludes that: (i) Starr cannot maintain a claim for the taking of AIG equity based upon the Government’s conversion of its preferred shares to common shares while also maintaining a claim for the taking of that same property interest pursuant to the Credit Agreement; and (ii) Starr cannot maintain a takings claim based upon Dolan’s rough proportionality test. In all other respects, the Court denies the Government’s RCFC 12(b)(6) motion as it pertains to Starr’s takings claims.
B. Review of Starr’s Illegal Exaction Claim
Finally, Starr advances an illegal exaction claim under the color of Section 13(3) of the FRA Starr claims that the Government, in conditioning the loan on its acquisition of a controlling equity interest in AIG, exceeded its authority under Section 13(3). Pl.’s Opp. 48. Starr concedes that Section 13(3) did not expressly prohibit the Government’s actions. Starr asserts, however, that the strict purpose of Section 13(3) is to extend credit to financial institutions in exigent circumstances and that the FRA does not provide, either expressly or impliedly, authority to the FRBNY to purchase equities. Id. at 48-50.
The Government urges the Court to dismiss Starr’s illegal exaction claim. First, the Government contends that Starr does not satisfy the jurisdictional prerequisites for such a claim because Starr fails to demonstrate that any statute mandates the return of money to it or AIG. Def.’s Rep. 28. Second, as with Starr’s takings claims, the Government submits that AIG voluntarily entered into the loan agreement, and, as such, AIG’s agreement to transfer equity in exchange for a loan was not an “exaction.” Id. at 28-29. Third, the Government denies that the FRBNY exceeded its statutory authority in conditioning its loan on a transfer of AIG equity to the Trust and therefore, denies that the transaction was “illegal.” Id. at 29-33.
As explained above, the Court finds that existing factual disputes make it inappropriate at this time to resolve the question of whether AIG voluntarily entered into the loan transaction with the Government. Accordingly, the Court rejects the Government’s position that it should dismiss Starr’s illegal exaction claim because the parties entered into a voluntary agreement such that there was no “exaction.” The Court addresses the Government’s remaining arguments below.
1. Whether Starr, or any other private litigant, has standing to bring claims to enforce the FRBNY’s compliance with Section 13(3)
Before turning to the Government’s two remaining arguments, the Court addresses whether Starr has standing to enforce the FRBNY’s compliance with Section 13(3). In Lucas v. Fed. Reserve Bank of Richmond, the U.S. Court of Appeals for the Fourth Circuit determined that only “the government, the sovereign which created and limited its powers,” has standing to enforce a Federal Reserve bank’s compliance with Section 13(3). 59 F.2d 617, 621 (4th Cm.1932) (internal citations omitted). The Fourth Circuit reached this conclusion by extending the U.S. Supreme Court’s ruling in Kerfoot v. Farmers’ & Merchs.’ Bank, 218 U.S. 281, 287, 31 S.Ct. 14, 54 L.Ed. 1042 (1910), which stated that “[w]here a corporation is incompetent by its charter to take a title ... a conveyance to it is not void, but only voidable, and the sovereign alone can object.”
At issue here is whether the Court should apply Lucas to the instant facts. While persuasive, Lucas is not controlling precedent. Its reliance on the text of The National Bank Act (“NBA”), 13 Stat. 99, 101 (1864), as amended by Section 16 of the Glass-Steagall Act, 48 Stat. 162, 184-85 (1933) (codified as amended at 12 U.S.C.A. § 24 Seventh (West 2008)), and NBA jurisprudence, such as Ker-foot, is sensible outside the standing context; however, a national bank and a Federal Reserve bank differ in important respects, *84which bear directly upon standing. Private national banks and public Federal Reserve banks serve different customers — private businesses and consumers, in the case of the former, and member banks and associated financial institutions, in the ease of the latter. A national bank operates by virtue of a national charter, which the Government provides at its grace. Whereas the Government is the natural regulator of a national bank, its licensee, there is no obvious regulator of a Federal Reserve bank other than the member banks and associated financial institutions that it serves.
Member banks and associated financial institutions, and their appropriate representatives, ought to have standing to ensure a Federal Reserve bank’s compliance with the rule of law.25 In light of the considerable financial requirements that Starr alleges the FRBNY imposed upon AIG, and the lack of an alternative public regulator, Starr has standing to challenge the FRBNY’s compliance with Section 13(3) of the FRA.
2. Whether Starr fails to plead an illegal exaction claim because Section 13(3) is not a money-mandating statute
The Government next contends that Starr fails to satisfy the jurisdictional prerequisites of an illegal exaction claim because it does not demonstrate that any statute mandates the return of money to it or AIG. Def.’s Rep. 28. Specifically, the Government maintains that neither Section 13(3) nor Section 4 of the FRA expressly or impliedly provides for the return of money.26 Id. at n. 9. In support of its argument, the Government asks the Court to analogize to cases decided outside the illegal exactions context, which purportedly illustrate that Section 13(3) is not money-mandating. Id.
As noted above, the Federal Circuit has indicated that an illegal exaction claim requires a showing that the statute causing the exaction is either expressly or implicitly money-mandating. See Norman, 429 F.3d at 1095; Cyprus Amax, 205 F.3d at 1373. But see Figueroa, 57 Fed.Cl. at 499; Bowman, 35 Fed.Cl. at 401. As this case involves novel applications of Section 13(3), the question of whether that section is money-mandating is also a novel one. While the Government maintains that case law “suggest[s]” that Section 13(3) is not money-mandating, the eases it cites — in a footnote — were admittedly decided outside the illegal exactions context and come from non-controlling jurisdictions. See Def.’s Rep. 28 n. 9. Given the limited briefing the parties have provided on the money-mandating issue, the Court concludes that it is premature at this stage to rule decisively on the issue, let alone treat it as dispositive for purposes of Starr’s illegal exaction claim.
3. Whether Starr fails to plead an illegal exaction claim because the FRBNY did not exceed its authority under Section 13(3) of the FRA
Finally, the Government contends that Starr fails to state an illegal exaction claim because the FRBNY did not exceed its authority under Section 13(3) in causing the transfer of AIG equity to the Trust as consideration for the loan.
The Court’s analysis of this issue depends largely upon whether the parties’ exchange under the Stock Purchase Agreement was a “purchase of,” or a “security interest in,” the Series C Preferred Stock by the FRBNY. A Federal Reserve bank unquestionably can, and indeed must, take a security interest in the collateral of a corporation to which it discounts commercial paper. Bd. of Governors of the Fed. Reserve Sys. (“1936 Circular”), 22 Fed. Reserve Bulletin 71, 124 (Feb. 1936) (“[A] Federal Reserve bank shall ascertain to its satisfaction by such means as it may deem necessary ... [t]hat the indorsement or security offered is adequate to protect the Federal Reserve bank against loss.”); Fed. Reserve Bd. (“1932 Circular”), 18 Fed. Reserve Bulletin 473, 519 (Aug. 1932). Moreover, that security interest may be in corporate stock. Lucas, 59 F.2d at *85619-21 (internal citations omitted); see also Cal. Nat’l Bank v. Kennedy, 167 U.S. 362, 369, 17 S.Ct. 831, 42 L.Ed. 198 (1897). The law regulating a Federal Reserve bank’s purchases, however, is much less settled.
Pursuant to the loan agreement and the Stock Purchase Agreement, the FRBNY agreed to provide AIG up to $85 billion in emergency revolving credit conditioned upon: (1) a security interest in all of AIG’s assets; (2) an approximate 14.5% interest rate; and (3) AIG’s issuance of the Series C Preferred Stock to the Trust in exchange for $500,000. See Compl. ¶¶ 55(a), 58-59, 63-67, 69, 73. Several aspects of the agreements indicate that the FRBNY purchased, rather than merely took a security interest in, the preferred shares.
Fust, as Starr emphasizes, the preferred shares do not appear to have “ ‘secure[d]’ the Government’s loan to AIG as collateral because the Government retains the stock even if AIG pays off the loan with interest.” Pl.’s Opp. 48; Compl. ¶ 78. Moreover, according to Starr, the Credit Agreement already provided for a security interest in all of AIG’s assets, in addition to the 14.5% interest rate on the loan. Based upon the information currently before the Court, there does not appear to have been anything more for the preferred stock to secure. Lastly, the Court observes that the parties’ use of the label “Stock Purchase Agreement” is much more suggestive of a “purchase” than a “security interest.” Gov. Mot. 9 (emphasis added).
Based on the foregoing, and for purposes of ruling on the Government’s motion to dismiss, the Court will treat the parties’ exchange as a “purchase of’ the Series C Preferred Stock for $500,000. Accordingly, the relatively straightforward law governing the security interests of a Federal Reserve bank does not control. Instead, the Court looks to the less-settled law governing a Federal Reserve bank’s purchases,
a. Whether the FRBNY had express authority under Section 13(3) to condition its loan to AIG on the issuance of stock to the Trust
As the Court’s analysis of the FRBNY’s express authority under Section 13(3) is dependent upon the text of the relevant statutes and regulations, the Court excerpts them in pertinent part:
Every Federal reserve bank shall have power to establish from time to time, subject to review and determination of the Board of Governors ... rates of discount to be charged by the Federal reserve bank for each class of paper, which shall be fixed with a view of accommodating commerce and business.
12 U.S.C. § 357 (2006).
In unusual and exigent circumstances, the Board of Governors of the Federal Reserve System ... may authorize any Federal reserve bank, during such periods as the said board may determine, at rates established in accordance with the provisions of [12 U.S.C. § 357 (2006)], to discount for any individual, partnership, or corporation, notes, drafts, and bills of exchange when such notes, drafts, and bills of exchange are indorsed or otherwise secured to the satisfaction of the Federal reserve bank.... All such discounts for individuals, partnerships, or corporations shall be subject to such limitations, restrictions, and regulations as the Board of Governors of the Federal Reserve System may prescribe.
Section 13(3) of the Federal Reserve Act, 12 U.S.C. § 343 (2006).
Starr contends that the provisions set forth above did not expressly authorize the Government to condition its loan to AIG on receiving a majority stake in the corporation. Pl.’s Opp. 48. Instead, Starr maintains that the “only consideration for a loan prescribed by” Section 13(3) “is an interest rate subject to the determination of the Board of Governors.” Id. at 49. The Court agrees.
The plain text of Section 13(3) does not expressly authorize a Federal Reserve bank to demand stock in a corporation in return for discounted paper. Moreover, Starr’s view is supported by Federal Reserve circulars explaining the Federal Reserve banks’ powers under Section 13(3) to discount commercial paper for corporations in exigent circumstances. One such circular states that “bank discounts as commonly understood do not apply to a bank’s acquisition through *86purchase of other assets, securities or obligations, such as, for example, corporate stocks, bonds or debentures.” Bd. of Governors of the Fed. Reserve Sys., 44 Fed. Reserve Bulletin 241, 269 (Mar. 1958) (internal quotation omitted). Another states that “[s]uch discounts may be made only at rates established by the Federal Reserve banks, subject to review and determination by the Board of Governors of the Federal Reserve System.” 1936 Circular, 22 Fed. Reserve Bidletin at 123; 1932 Circular, 18 Fed. Reserve Bulletin at 518; .see also 12 U.S.C. § 357 (2006).
Based on the plain text of Section 13(3) and the Federal Reserve circulars quoted above, the Court concurs with commentary concluding that there simply “is no express authority for the Federal Reserve to purchase ... equities.” David Small & James Clouse, Limits the Federal Reserve Act Places on Monetary Policy, 19 Ann. Rev. Banking L. 553, 579 (2000). The Court turns to whether the FRBNY had implied authority under Section 13(3) to require an equity interest in AIG in exchange for exigent financing.
b. Whether the FRBNY had implied authority under the FRA to condition its loan to AIG on the issuance of stock to the Trust
Section 4 of the FRA, which enumerates the statutory powers of the Federal Reserve banks, provides:
[A] Federal Reserve bank ... shall have power ... [t]o exercise ... all powers specifically granted by the provisions of this chapter and such incidental powers as shall be necessary to carry on the business of banking within the limitations prescribed by this chapter.
12 U.S.C. § 341 Seventh (2006). The question is whether a Federal Reserve bank’s “incidental powers” under the FRA include the power to purchase corporate stock. This question is one of first impression. To address it, the Court analogizes to jurisprudence interpreting a national bank’s authority within the meaning of the NBA, 12 U.S.C.A. § 24 Seventh (West 2008). As both parties acknowledge in their briefs, see Def.’s Rep. 28-33; PL’s Opp. 49, the relevant portions of the FRA and the NBA are similarly phrased. Compare FRA, 12 U.S.C. § 341 Seventh (2006), with NBA, 12 U.S.C.A. § 24 Seventh (West 2008); see also Lucas, 59 F.2d at 620 (“The section of the Federal Reserve Act granting incidental powers to the Federal Reserve Banks is practically the same as the section granting incidental powers to national banking associations.”).
In Cal. Nat’l Bank v. Kennedy, 167 U.S. 362, 369, 17 S.Ct. 831, 42 L.Ed. 198 (1897) (“California National”), the U.S. Supreme Court stated that the “power to purchase or deal in stock of another corporation ... is not expressly conferred upon national banks, nor is it an act which may be exercised as incidental to the powers expressly conferred.” The Government attempts to “cabin” California National, an opinion from 1897 that pre-dates Congress’s 1933 passage of the Glass-Steagall Act. Def.’s Rep. 31. According to the Government, Section 16 of the Glass-Steagall Act “modifie[d]” California National, “by limiting a [national] bank to buying or selling stocks for customers, and not ‘for its own account.’ ” Id. The Government emphasizes that no corresponding prohibition appears in the incidental powers provision of 12 U.S.C. § 341 relating to Federal Reserve banks. Id. at 32.
Even if the Glass-Steagall Act could be read as limiting the prohibition in California National only to a national bank purchasing or dealing in corporate stock “for its own account,” requiring the issuance of the Series C Preferred Stock to the Trust seems to qualify as the FRBNY dealing for its own account. The Government attempts to distinguish between ownership of AIG stock by the FRBNY and acquisition of the stock by the Trust eoncededly structured to benefit the Treasury Department. See Def.’s Rep. 29 (“The FRBNY never acquired any AIG stock, and thus did not violate any restriction upon its acquisition of stock. Preferred stock was acquired by the Trust for the benefit of the Treasury, and Starr does not contend that any statute prohibited such an acquisition of stock.”). Without greater factual development, the Court is disinclined to indulge the Government’s distinction.
*87Indeed, according to Starr, the Trust controlled the selection of AIG board members under the terms of the Credit Agreement. PL’s Opp. 27; see also Compl. ¶ 166. The Trust was subject to a standard of care (1) not to act contrary to the Government’s interests, and (2) to elect Directors who would uphold the same standard. Pl.’s Opp. 27; see also Compl. ¶ 165. “According to the Trust Agreement, the Trust ... was created ‘for the sole benefit of the United States Treasury.’ ” Compl. ¶ 69.
Based on the facts currently before the Court, it is not clear why the Government would use a trust procedure unless to circumvent the Supreme Court’s holding in California National. Presumably, the Government does not have the typical concerns of private sector entities when creating trusts, such as estate and tax planning. Thus, at this stage, the Court perceives no meaningful legal distinction between FRBNY and Trust ownership of the Series C Preferred Stock. For purposes of the Government’s motion to dismiss, the Court rales that the FRBNY’s incidental powers under Section 4 of the FRA did not authorize it to condition the provision of exigent financing on AIG’s issuance of stock to the Trust. Based on the foregoing, the Court denies the Government’s 12(b)(6) motion in its entirety as it pertains to Starr’s illegal exaction claim.
CONCLUSION
In sum, the Court GRANTS the Government’s RCFC 12(b)(1) motion as to: (i) any Due Process claims not characterized as illegal exactions; and (ii) any Equal Protection claims. For the time being, the Court defers the issue of whether Starr adequately pled a demand on AIG’s board or the futility of such a demand. The Court DENIES the remainder of the Government’s RCFC 12(b)(1) motion.
The Court GRANTS the Government’s RCFC 12(b)(6) motion as to: (i) Starr’s takings claim based on the Government’s conversion of its preferred stock to common stock, insofar as Starr alleges the taking of the same equity interest more than once; and (ii) Starr’s use of Dolan’s rough proportionality test to assert a takings claim. The Court DENIES the Government’s RCFC 12(b)(6) motion in all other respects.
Pursuant to RCFC 12(a)(4), the Government shall file its Answer to Starr’s Complaint within 14 days of this opinion, on or before July 16, 2012. Counsel for the parties shall conduct an Early Meeting of Counsel as required by Appendix A of the Court’s rules within 14 days of the Government’s Answer. Discovery, including RCFC 26 disclosures, may commence after the Early Meeting of Counsel. In addition, counsel for the parties shall submit to the Court the Joint Preliminary Status Report (“JPSR”) required by Appendix A within 28 days of the Government’s Answer, on or before August IS, 2012. Upon receiving the parties’ JPSR, the Court will arrange a preliminary scheduling conference.
As stated in the Court’s March 13, 2012 order, AIG may file an answer or other response to Starr’s Complaint within 20 days of the Government’s filing of its Answer, see Dkt. No. 35, on or before August 6, 2012.
IT IS SO ORDERED.
.Throughout this opinion the Court refers to Defendant, the United States as "the Government," which Starr defines as "the [U.S.] Department of the Treasury and its agents acting at its direction.” Compl. ¶ 2. In so doing, the Court takes no position on the issue of who may have been acting under the control of the federal government at the time of the incidents alleged.
. When referencing "Starr's Complaint” or citing to "Compl.," the Court is referring to Starr’s amended complaint filed January 31,2012.
. In a notice and order dated January 31, 2012, the Court advised AIG that as a party to this case, it would be bound by the Court’s final judgment and may participate in this case to any extent it deems appropriate. See Dkt. No. 23.
. The Court cites to the Government’s March 1, 2012 motion to dismiss as "Def.’s Mot. - AIG’s March 26, 2012 response as "AIG Resp. -Starr’s March 29, 2012 opposition as "PL’s Opp.-the Government’s April 26, 2012 reply as “Def.’s Rep. -and the transcript of the June 1, 2012 oral argument as "Tr. — (Name of counsel).”
. The Federal Reserve discount window is a means by which eligible institutions can borrow money from a Federal Reserve bank in order to meet temporary liquidity needs.
. But see Figueroa v. United States, 57 Fed.Cl. 488, 499 (2003) (“In the context of an illegal exaction, the court has jurisdiction regardless of whether the provision relied upon can be reasonably construed to contain money-mandating language.” (citing Bowman v. United States, 35 Fed. Cl. 397, 401 (1996))), aff'd, 466 F.3d 1023 (Fed.Cir.2006).
. This Court has jurisdiction over takings claims against the U.S. Government pursuant to the Tucker Act. Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1362 (Fed.Cir.2005) (quoting 28 U.S.C. § 1491(a)(1) (2006)) (noting that this Court’s jurisdiction "includes on its face all takings claims against the United States”). The parties dispute, however, whether Starr can bring such a claim directly.
. While Starr labels its direct claim as one for "expropriation,” Pl.’s Opp. 29, the Supreme Court of Delaware has at times called such claims "dilution” claims, In re Tri-Star Pictures, 634 A.2d 319, 330 (Del. 1993), and has used the terms "expropriation” and "dilution” interchangeably, see Gatz v. Ponsoldt, 925 A.2d 1265, 1278 (Del.2007) (stating that a recapitalization resulted in "a dilution or expropriation of value and voting power”); see also Gentile v. Rossette, 906 A.2d 91, 102 n. 26 (Del.2006) ("In Tri-Star, this Court articulated the harm to the minority in terms of a "dilution” of the economic value and voting power of the stock held by the minority. In this case, we adopt a more blunt characterization — extraction or expropriation — because that terminology describes more accurately the real-world impact of the transaction upon the shareholder value and voting power ... and the *62uniqueness of the resulting harm to the minority shareholders individually.’’). Likewise, in addressing Starr’s direct claim, this opinion refers to it interchangeably as Starr’s "expropriation" or "dilution" claim.
. In its prayer for relief, Starr requests damages in an amount "no ... less than $25 billion," which it maintains was the market value for the 562,868,096 shares of AIG common stock as of January 14, 2011, the date upon which the Government exchanged its Series C Preferred Stock for common stock. Compl. at 57, ¶ H. As set forth below, infra Part III.A.l, the Court finds that Starr ultimately places the Government’s taking of a 79.9% equity interest in AIG at September 22, 2008, when the Government allegedly "imposed” the Credit Agreement upon AIG’s board, see Compl. ¶¶ 63-64, 67; Tr. 51-52, 100— 01, 105 (Boies). Around the time of the Credit Agreement, Starr maintains that an ownership interest in 79.9% of AIG’s common stock was valued at $23 billion. Compl. ¶ 67. At this stage of the case, the Court does not seek to approximate any potential damages but merely explains the reason for its imprecise reference to "over $20 billion.”
. The Delaware Court of Chancery has referred to such "corporate overpayment" claims as "wrongful dilution" claims. Feldman v. Cutaia, 956 A.2d 644, 655 (Del.Ch.2007).
. Initially, in its motion to dismiss, the Government failed to address Gatz or Rossette and contended that Starr’s dilution claim was solely derivative and not direct because AIG suffered the alleged harm and would receive the benefit of any recovery. Def.’s Mot. 17. In its reply, however, the Government conceded that “the [Rcw-sette ] and Gatz cases recognize[e] that ordinarily derivative claims for dilution can become direct if the plaintiff sustainably alleges that the dilution was accomplished by a controlling shareholder that used its majority power discriminatorily to dilute minority shareholders.” Def.’s Rep. 5.
. "Minority” shareholders refers to the AIG common shareholders at the time of the alleged expropriations. The Court refers to them as "minority" shareholders in the sense that, according to Starr’s allegations, they no longer controlled AIG after September 16, 2008. Tr. 78 (Boies). The Court does not refer to them as minority shareholders because of the percentage of their ownership interest in AIG common stock. See In re PNB Holding Co. S’holders Litig., No. Civ. A. 28-N, 2006 WL 2403999, at *9 (Del.Ch. Aug. 18, 2006) (Under Delaware law, “a controlling shareholder exists when a stockholder: 1) owns more than 50% of the voting power of a corporation; or 2) exercises control over the business and affairs of the corporation.” (citing Kahn v. Lynch Comm. Sys., Inc., 638 A.2d 1110, 1113-14 (Del.1994))).
. During the oral argument held on June 1, 2012, counsel for Starr provided the Court with a binder consisting of copies of power point slides, which Starr used to support its argument. Upon request by the Government, the Court agreed to *64consider only those slides to which counsel for Starr referred during his presentation. This opinion refers to those slides as “Slide —.”
. This conclusion presupposes that the shareholders have a legally cognizable property interest in the economic value and voting power associated with their shares of common stock. At this stage of the proceedings, the Court finds that they do. See Discussion, pp. 74-75.
. In its opposition to the Government’s motion to dismiss, Starr argued in the alternative that, should the Court decide to rule on the demand issue now, its Complaint satisfies the demand requirement because it adequately demonstrates that demand is excused in this case. Pl.’s Opp. 25.
. RCFC 23.1(b)(3) provides that the complaint must "state with particularity: (A) any effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members; and (B) *66the reasons for not obtaining the action or not making the effort.”
. In the event future factual development shows that the Government’s actions were not authorized under Section 13(3) of the FRA, Starr could advance its illegal exaction claim to recover just compensation for the value of the property at issue. As in asset forfeiture cases, where a plaintiff seeks the value of wrongly-forfeited assets that may have been sold, damaged, or destroyed, see e.g., Casa de Cambio Comdiv S.A. de C.V. v. United States, 48 Fed.Cl. 137 (2000); Bowman v. United States, 35 Fed.Cl. 397 (Fed.Cl.1996), the Government here cannot simply restore Plaintiffs’ voting power or proportional equity stake. "The egg has been scrambled and there is no apparent way to restore the status quo ante.” Sugar Cane Growers Coop, of Fla. v. Veneman, 289 F.3d 89, 97 (D.C.Cir.2002).
. Whether stated as a 79.9% equity interest or 562,868,096 shares of AIG common stock, it is undisputed that the equity interest in AIG is a protectable property interest. As explained above, however, Starr cannot maintain that the Government took the same property interest more than once. Thus, while Starr identifies both the 79.9% equity interest and the over 562 million shares of AIG common stock as protecta-ble property interests, the Court views the taking of AIG equity as occurring, if at all, on September 22, 2008.
. The Government nevertheless denies that it "took” the 79.9% equity interest in AIG, as it maintains that it paid $85 billion in consideration for the 79.9% interest. Tr. 39 (Simkin).
. The U.S. Supreme Court has stated expressly that "destruction is tantamount to taking.” United States v. Gen. Motors Corp., 323 U.S. 373, 384, 65 S.Ct. 357, 89 L.Ed. 311 (1945).
. The Court notes that Starr does not rely on its allegations of coercion and misrepresentation as freestanding torts, see Pl.’s Opp. 34, as "tort cases are outside the jurisdiction of the Court of Federal Claims,” Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (internal footnote omitted). Instead, Starr asserts ancillary tort allegations, including coercion and misrepresentation, in support of its position that AIG did not voluntarily enter into the Credit Agreement. See Pl.’s Opp. 34.
. Even if AIG's board gave the Government control of the corporation on September 16, 2008, thereby acquiescing in the Government’s subsequent running of the corporation, AIG/the Government appears to have tied its own hands as to the reverse stock split by seemingly representing to the Delaware Court of Chancery that it would "act in the interests of the common stockholders who are entitled to reject the dilution of their shares.” Compl. ¶ 85. In the Court’s view, AIG/the Government’s obligation to allow the common stockholders to vote as a class on the reverse stock split arose, if at all, from the Delaware Consent Order.
. In Frost & Frost Trucking Co. v. R.R. Comm’n, 271 U.S. 583, 593-94, 46 S.Ct. 605, 70 L.Ed. 1101 (1926), Justice Sutherland explained the justification for the doctrine of unconstitutional conditions as follows:
It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence.
. In Clcijon Proel. Corp. v. Petera, the U.S. Court of Appeals for the Tenth Circuit explained that " '[development exactions’ are where a governmental agency requires that a property owner dedicate some of his or her land for public use before granting that property owner a permit to develop the land. This 'exaction’ of land often involves the actual deeding of some of the property to the public — either in the form of an easement or an outright transfer of the land.” 70 F.3d 1566, 1578 n. 20 (10th Cir.1995).
. Starr still must show that it is an appropriate representative of AIG, a question not addressed in this opinion.
. A claim under Section 13(3) of the FRA necessarily implicates Section 4 of the FRA as well, which enumerates the statutory powers of the various Federal Reserve banks. See 12 U.S.C. § 341 Seventh (2006). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218303/ | OPINION
ALLEGRA, Judge:
The Klamath Tribe Claims Committee (Klamath Claims Committee or plaintiff) seeks damages for alleged takings and breaches of fiduciary duty committed by the Department of the Interior (Interior). It asserts that Interior has failed to disburse funds owed to tribal members and to safeguard treaty-based water rights associated with a dam. On February 11,2011, the court granted, in part, a motion filed by defendant, and dismissed two of plaintiffs counts for lack of jurisdiction. As to the remaining counts, this court concluded, under RCFC 19, that a necessary party, the Klamath Tribes (the Tribes)1 must be joined. Subsequently, the Tribes declined to participate in this lawsuit. Accordingly, the court must now determine whether the Tribes is an indispensable party under RCFC 19(b). For the reasons that follow, the court concludes that the Tribes, indeed, is an indispensable party and that the inability to join it in this lawsuit requires that the complaint be dismissed.
I. BACKGROUND
A brief recitation of the facts provides necessary context.
The United States and the Tribes entered into a Treaty in 1864. See Treaty between the United States and the Klamath and Moa-doc Tribes and Yahooskin Band of Snake Indians, October 14, 1864, 16 Stat. 707 (the Treaty). Under this Treaty, the Tribes ceded their interest in approximately twelve million acres of land, reserving unto themselves approximately 800,000 acres, along with “the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries *89within its limits.” Id. In exchange, the federal government gave the Tribes cash and goods worth approximately $300,000. It also committed to provide various services to the Tribes and to hold tribal assets in trust for the benefit of the Tribes and its members. Id. From 1890 to 1920, the Bureau of Indian Affairs (BIA) surveyed the reservation for its irrigation potential and constructed irrigation facilities. One such facility was a diversion dam, the Chiloquin Dam (the Dam), that diverted portions of the Sprague River into canals which served lands on the Williamson River and Upper Klamath Lake.
In 1954, Congress passed the Klamath Termination Act (the 1954 Act), Pub. L. No. 83-587, 68 Stat. 718 (codified, as amended, at 25 U.S.C. §§ 564-564x), which ended federal supervision over the Tribes’ trust assets and tribal properties, and terminated the federal services furnished to the Tribes. As described by the Court of Claims in an earlier ease—
[t]he basic scheme of that statute ... was to give each adult member whose name appeared on the final tribal roll an election between withdrawing from the tribe and having his interest in tribal property commuted to money to be paid to him, and, on the other hand, remaining in the tribe and participating in a nongovernmental tribal management plan.
Klamath & Modoc Tribes v. United States, 436 F.2d 1008, 1010-11 (Ct.Cl.1971).2 Section 10 of the 1954 Act authorized the government to dispose of federally-owned property acquired for administration of the Tribes or to transfer this property to qualifying entities. 1954 Act § 10 (codified at 25 U.S.C. § 564i). Other provisions in this statute dealt with the federally-owned and operated irrigation facilities on the Klamath Reservation, including the Dam. For example, section 13(a) of the 1954 Act authorized the Secretary to transfer the “care, operation and maintenance” of irrigation works to water users associations or irrigation districts. 1954 Act § 13(a) (codified at 25 U.S.C. § 564i(a)).
Section 13(e) of the 1954 Act “authorized to be appropriated” $89,212 for “payment to the Klamath Tribe[s]” at four percent interest “per annum,” calculated from the date of disbursement. 1954 Act § 13(e) (codified at 25 U.S.C. § 564i(c)). The 1954 Act stated that these funds were “reimbursement for tribal funds used for irrigation, construction, operation and maintenance benefitting non-tribal lands on the Klamath Reservation.” Id. It further directed the Secretary to transfer all personal property or funds that the United States held in trust, free of encumbrance, to tribal members within four years. 1954 Act § 8 (codified at 25 U.S.C. § 564g). The Secretary was directed to arrange for the disposition of the Tribes’ property at the earliest practicable time, but not later than August 13,1958. 1954 Act § 6(b) (codified at 25 U.S.C. § 564e(b)); see also Klamath & Modoc Tribes, 436 F.2d at 1011. Once the restrictions on the Tribes’ property were removed, the Secretary was to publish a proclamation in the Federal Register that the trust relationship between the Tribes and the United States was terminated. 1954 Act § 18 (codified at 25 U.S.C. § 564q). Finally, the 1954 Act expressly preserved the Tribes’ water and fishing rights as granted under the 1864 Treaty. 1954 Act § 14 (codified at 25 U.S.C. § 564m).
Following the passage of this legislation, approximately seventy-eight percent of the Tribes’ members (1,660 of 2,133) chose to withdraw, and defendant used its authority under Section 10 of the Act to sell off much of the Tribes’ property to pay these withdrawing members. See Klamath & Modoc Tribes, 436 F.2d at 1011. The Secretary transferred the remaining tribal property to a private trustee to be maintained for those members who chose to remain with the Tribes. In 1955, about a year after the *90passage of the 1954 Act, Congress appropriated funds to reimburse the Tribes for money expended to construct, operate and maintain irrigation facilities benefiting non-tribal lands. See Dept, of Interior and Related Agencies Appropriations Act of 1956, Pub. L. No. 84-78, ch. 147, 69 Stat. 141, 143 (June 16, 1955). In 1961, the Secretary published a notice in the Federal Registrar stating that the federal government’s relationship with the Tribe was officially terminated. 26 Fed. Reg. 7,362 (Aug. 12,1961).
On August 21, 1961, the Tribes’ governing body passed a resolution giving the Klamath Claims Committee authority to pursue certain claims against the United States. See Joint Resolution of Tribal Councils, March 2008 (describing the earlier resolution). The Klamath Claims Committee represents all 2,133 individuals who appeared on the rolls of the Tribes as of the date of their termination under the 1954 Act. In 1961, the Tribes and sevei’al individuals (both withdrawing and remaining members for themselves and as representatives for similarly-situated individuals) filed suit against the United States in the U.S. Court of Claims alleging that the United States effectuated a takings in implementing the 1954 Act. Klamath & Modoc Tribes, 436 F.2d at 1012. In 1962, seventy-three withdrawn members filed a similar suit. Id. at 1013. The Court of Claims consolidated the two cases in 1964. Id. at 1010. The takings claims were eventually settled for approximately $23.5 million. See Klamath & Modoc Tribes v. United States, 199 Ct.Cl. 1024 (Ct. C1.1972). The settlement was effectuated, in part, via legislation passed by Congress in 1965.3
Although the government-to-government relationship between the Tribes and the United States ceased in 1961, BIA took several years to conclude operations and transfer its irrigation project facilities. In 1973, Interior transferred title to the Dam to the Modoac Point Irrigation District (MPID), a non-federal entity chartered under Oregon law, made up of landowners. MPID accepted the transfer in 1974. See Operation and Maintenance Charges, Deletion of Needless Regulations, 44 Fed. Reg. 12,192 (Mar. 6, 1979). In 1979, BIA published a notice deleting all the regulations pertaining to the irrigation system in light of the 1973 transfer of ownership to the MPID. Id. Nevertheless, several court decisions at or around this time confirmed that the Tribes’ rights to certain natural resources under the 1864 Treaty survived the passage of the Termination Act. See Kimball v. Callahan, 493 F.2d 564 (9th Cir.), cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974) (treaty-reserved hunting and fishing rights on former reservation lands survived termination); United States v. Adair, 723 F.2d 1394 (9th Cir.1983), cert. denied, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984) (same as to implied reserved water rights).
In 1986, Congress passed the Klamath Indian Tribe Restoration Act (the Restoration Act), Pub.L. No. 99-398, 100 Stat. 849 (Aug. 27, 1986) (codified at 25 U.S.C. § 566), reestablishing federal recognition of the Tribes. While the Restoration Act restored the Tribes’ federal services, as well as the government-to-government relationship between the Tribe and the United States, it did not alter existing property rights. See 25 U.S.C. § 566(d).
Throughout the post-termination and subsequent restoration period, the Klamath Claims Committee believed that it had broad authority to represent the Tribes and its members in tribal litigation. Several resolutions of the Committee reflect this. For example, a 1983 resolution that states that the Tribes’ August 21, 1961, grant of authority designated the Klamath Claims Committee as “the post-termination representative body of the Tribe” with respect to the “supervision and management of tribal claims against the United States for all dealings.” Klamath Claims Committee Resolution, January 1983; see also Klamath Claims Com*91mittee Resolutions, June 1996; Klamath Claims Committee Resolution, May 1996. In 1993, the Tribes authorized plaintiff to work with BIA to disburse judgments from eases in which plaintiff, acting on behalf of the 1954 membership, was successful. See Kla-math Tribe Executive Resolution, July 1993. More recently, the governing body of the Tribes authorized the Klamath Claims Committee to use funds to “pursue claims, including but not limited to claims now being prosecuted against PaeifiCorp.” See Joint Resolution of Tribal Council, March 2008.4 This resolution, however, did not give the Committee exclusive authority to pursue the Pacificorp litigation, as it envisioned that the Tribes would also participate in that litigation. Id. The same resolution indicated that, to the extent that the Klamath Claims Committee pursued “other claims” outside of the Pacificorp case, it must act “within [its] authority as established by the General Counsel.”5
In the late 1980s, Interior determined that the Dam and its fish ladder were adversely affecting several fish species listed as “endangered” under the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. § 1531 et seq. In 2001, Congress authorized a study to assess alternatives for improving fish passage at the Dam. See Farm Security and Rural Investment Act of 2002, Pub.L. No. 107-171, § 10905, 116 Stat. 134, 537. After consulting with the MPID and the Tribes, Interior determined that the best course of action was removing the Dam. In 2006, BIA negotiated a cooperative agreement with MPID under which Interior would pay to remove the Dam and construct an alternative electric pump plant for irrigation. MPID landowners voted in favor of Dam removal, and signed a cooperative agreement with the BIA. The Dam was removed in August 2008.
Plaintiff filed its initial complaint in this court on February 6, 2009, and an amended complaint on March 17, 2009. The latter advances four causes of action: (i) a takings of Indian trust assets based on the government’s failure to reimburse the Tribes as authorized by section 13 of the 1954 Act; (ii) a breach of fiduciary duty based on the failure to disburse the section 13 authorized funds; (iii) a takings based on the removal of the Chiloquin Dam and its associated water storage; and (iv) a breach of fiduciary duty based on the removal of the Dam and its associated water storage. Plaintiff asserted that this court possesses jurisdiction over these claims under the Indian Tucker Act, 28 U.S.C. § 1505. On May 7, 2009, defendant filed a motion to dismiss under RCFC 12(b)(1) and (6).
On February 11, 2011, the court granted, in part, defendant’s motion. It held that plaintiffs claims involving the disbursements required by section 13 of the 1954 Act and relating to the transfer of the Chiloquin Dam fell far outside the six-year statute of limitations established by 28 U.S.C. § 2501, and thus must be dismissed for lack of jurisdiction. See Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 209 (2011) (Klamath Tribe Claims Comm. I). The court, however, held that it had jurisdiction over the remainder of plaintiffs claims relating to the removal of the Dam in August of 2008. Id. at 210. As to those claims, the court concluded that the Tribes “are a party that should be joined to this action under RCFC 19(a).” Id. at 213. In this regard, the court noted that “there is an overlap between the membership and interests of the Tribes and the Klamath Claims Committee, particularly after the passage of the Restoration Act in 1986.” Id. at 212. Observing that “the Tribes currently possess fishing and water rights that derive from the 1864 *92Treaty,” the court noted that it is “essentially those same rights and associated fiduciary obligations — deriving from the same 1864 Treaty — that plaintiff seeks to vindicate in this case.” Id. Despite this, it found that in communications with plaintiffs counsel, the Chairman of the Tribes had indicated that he was “ ‘not in a position to lend support to litigation over which the Klamath Tribes have no control, particularly where the litigation may potentially affect Tribal rights of the entire General Council membership.’ ” Id. (quoting a letter from the Chairman of the Tribes).
“Based on these facts,” the court concluded that “in the absence of the Tribes, it cannot afford complete relief as between plaintiff and the United States.” Id. It further found “that the Tribes has claimed an interest in the remaining subject matter of this lawsuit and that disposing of this ease in the Tribes’ absence may, as a practical matter, impede the Tribes’ ability to protect that interest or leave the United States subject to inconsistent obligations.” Id. at 212-18. Because the Tribes is a sovereign, the court determined that the appropriate process was to extend an invitation to the Tribes to intervene in this case under RCFC 24. Id. at 214. The court stated that if the Tribes declined that invitation, it would determine whether the Tribes was “indispensable,” further observing that if this was so, the case would then be dismissed under RCFC 19(b). Id.
On April 20, 2011, the Klamath Tribes responded to this court’s invitation, declining to intervene in this matter. This response, nonetheless, asserted that the Tribes “have an interest in the remaining subject matter of this lawsuit” and that “disposing of this case in the Tribes’ absence may, as a practical matter, impede the Tribes’ ability to protect that interest.” Lastly it indicated that “the Plaintiff Claims Committee has no authority to speak for or represent the Tribes.”6 On August 11, 2011, following the death and replacement of plaintiff’s counsel, this court ordered the parties to file simultaneous briefs addressing whether the Tribes were indispensable under RCFC 19(b). In an amicus filing, the Tribes “expressly reserved] its sovereign immunity from suit in this action,” declaring the rights at issue to be ones “that belong to the Tribes.” This amicus brief further claimed that plaintiff is “in fact acting hostilely to the Tribes, asserting control over tribal rights, and inviting this Court to de-legitimize the Tribes.”
The parties’ briefing on the RCFC 19(b) issue is now completed. Argument is deemed unnecessary.
II. DISCUSSION
Indian tribes possess “the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); see also Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 753-54, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). Like all sovereigns, they are free to assert or to waive their immunity, as they see fit. Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). One aspect of this immunity is that a tribe “cannot be haled into court against its will, even as a plaintiff.” Klamath Claims Comm. I, 97 Fed.Cl. at 213.7 In this ease, the Tribes has refused an invitation to intervene in this action under RCFC 24. In that situation, the court must determine whether dismissal here is warranted under RCFC 19(b). See Klamath Claims *93Comm. I, 97 Fed.Cl. at 213-14; see also Narragansett Tribe of Indians v. S.R.I. Land Dev. Corp., 418 F.Supp. 798, 810-11 (D.R.I.1976).
Under RCFC 19(b), “[i]f a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Specifically, the rule indicates that, in making this determination, factors for the court to consider include:
(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s absence would be adequate, and
(4) whether the person would have an adequate remedy if the action were dismissed for nonjoinder.
RCFC 19(b).8 This decision “is to be made in the light of pragmatic considerations.” Fed. R. Civ. P., Advisory Comm, notes (1966); see also Roos v. Texas Co., 23 F.2d 171 (2d Cir.1927), cert. denied, 277 U.S. 587, 48 S.Ct. 434, 72 L.Ed. 1001 (1928); H.H. Robertson Co. v. Lumbermen’s Mut. Cas. Co., 94 F.R.D. 578, 579 (W.D.Pa.1982), affd, 696 F.2d 982 (3d Cir.1982).9 “It must be based on factors varying with the different cases,” the Supreme Court has observed, “some procedural, some compelling by themselves, and some subject to balancing against opposing interests.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); see also Pimentel, 553 U.S. at 863, 128 S.Ct. 2180 (“multiple factors must bear on the decision whether to proceed without a required person”); Kickapoo Tribe of Indians of Kickapoo Reservation in Kansas v. Babbitt, 43 F.3d 1491, 1495 (D.C.Cir.1995).
In Provident, Mr. Justice Harlan, speaking for a unanimous Court, parsed the factors in Rule 19. First, he noted, how the factors reflect the interests of the parties before the Court—
First, the plaintiff has an interest in having a forum. Before the trial, the strength of this interest obviously depends upon whether a satisfactory alternative forum exists.... Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another.
Id. at 109-10, 88 S.Ct. 733. Also manifest in the factors, Justice Harlan wrote, “is the interest of the outsider whom it would have been desirable to join.” Id. at 110, 88 S.Ct. 733. On this point, the Provident Court expounded—
Of course, since the outsider is not before the court, he cannot be bound by the judgment rendered. This means, however, only that a judgment is not res judicata as to, or legally enforceable against, a nonparty. It obviously does not mean either (a) that a court may never issue a judgment that, in practice, affects a nonparty or (b) that (to the contrary) a court may always proceed without considering the potential effect on nonparties simply because they *94are not ‘bound’ in the technical sense. Instead, as Rule 19(a) expresses it, the court must consider the extent to which the judgment may ‘as a practical matter impair or impede his ability to protect’ his interest in the subject matter.
Id. at 110-11, 88 S.Ct. 733. Finally, “there remains the interest of the courts and the public in complete, consistent, and efficient settlement of controversies,” which implicates the “public’s stake in settling disputes by wholes, whenever possible, for clearly the plaintiff, who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtainable against them.” Id. at 111, 88 S.Ct. 733.10
That plaintiff lacks an adequate remedy if this suit is dismissed weighs against dismissal. This court has exclusive jurisdiction over the takings and breach of fiduciary duty claims that remain at issue in this case. See United States v. Tohono O’Odham Nation, - U.S. -, 131 S.Ct. 1723, 1729-31, 179 L.Ed.2d 723 (2011); Trusted Integration v. United States, 659 F.3d 1159, 1162 (Fed.Cir.2011); Morris v. United States, 392 F.3d 1372, 1375 (Fed.Cir.2004). Conversely, a U.S. district court would lack jurisdiction to provide any relief to plaintiff under the Administrative Procedure Act, 5 U.S.C. §§ 702 and 704.11 Accordingly, if this suit is dismissed, plaintiff likely will be left without any ability to recoup compensation for the injuries it claims. In such an instance, the deci-sional law indicates that this court should be “‘extra cautious’ before dismissing an action.” Kescoli, 101 F.3d at 1310 (quoting Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.1990)).12
But, there are countervailing considerations here. Courts generally afford sov*95ereigns “heightened protection” if a lawsuit poses “a potential of injury to the sovereign’s interest.” Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1181 (11th Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 2379, 182 L.Ed.2d 1051 (2012). This consideration has often led courts to dismiss in cases where the United States is the absent party. See Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 375, 66 S.Ct. 219, 90 L.Ed. 140 (1945); State of Minnesota v. United States, 305 U.S. 382, 388-89, 59 S.Ct. 292, 83 L.Ed. 235 (1939). And there likewise is a “strong policy that has favored dismissal when a court cannot join a tribe because of sovereign immunity.” Davis v. United States, 192 F.3d 951, 960 (10th Cir.1999), cert, denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004).13 Indeed, “[w]hen ... a necessary party ... is immune from suit, there is very little room for balancing of other factors set out in Rule 19(b), because immunity may be viewed as one of those interests compelling by themselves.” Enterprise Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 894 (10th Cir.1989) (quoting Wichita & Affiliated Tribes, 788 F.2d at 777 (quoting 3A Moore’s Federal Practice ¶ 19.15, at 19-266 n. 6 (1984))).14 While “this does not mean that balancing can be completely avoided simply because an absent person is immune from suit,” it does mean that “the plaintiffs inability to obtain relief in an alternative forum is not as weighty a factor when the source of that inability is a public policy that immunizes the absent party from suit.” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1293-94 (10th Cir.2003), cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004); see also N. Arapaho Tribe v. Hamsberger, 660 F.Supp.2d 1264, 1283 (D.Wyo.2009).
Recently, in Pimentel, 553 U.S. 851, 128 S.Ct. 2180, the Supreme Court elaborated on the importance of sovereign immunity plays in the balancing analysis required by Rule 19(b). In that ease, various parties claimed assets in a Merrill Lynch brokerage account that included funds which allegedly had been illicitly obtained by former Philippines President Marcos. Id. at 857, 128 S.Ct. 2180. Originally, the Republic of the Philippines and a sovereign Filipino Commission were included as defendants in the action, via in-terpleader, but were later dismissed after they successfully invoked the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1604, 1609. Id. at 859, 128 S.Ct. 2180. After this dismissal, the district court awarded the funds to another party. Id. at 860, 128 S.Ct. 2180. The Ninth Circuit affirmed this ruling, holding that while the Republic and the Commission were necessary parties under Rule 19(a) and entitled to be dismissed based on sovereign immunity, their claim to the disputed assets was unlikely to succeed on the merits.15 The Supreme Court reversed, holding that the lower courts erred in their analysis of Rule 19(b) because they had “not aceord[ed] proper weight to the compelling claim of sovereign immunity.” Pimentel, 553 U.S. at 869, 128 S.Ct. 2180. Framing the *96rationale of the Court, Justice Kennedy stated that cases “involving the intersection of joinder and the governmental immunity of the United States ... instruct us that where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign.” Id. at 867, 128 S.Ct. 2180. Recognizing that “[d]is-missal under Rule 19(b) will mean, in some instances, that plaintiff will be left without a forum for definitive resolution of their claims,” the Court, nonetheless, concluded that this “result is contemplated under the doctrine of foreign sovereign immunity.” Id. at 872,128 S.Ct. 2180.
While Pimentel is, in some regards, distinguishable,16 it, nevertheless, illustrates that sovereign immunity often will be compelling itself in swaying the Rule 19(b) analysis. Pimentel stands for the proposition that where a sovereign party should be joined in an action, but cannot be owing to sovereign immunity, the entire case must be dismissed if there is the potential for the interests of the sovereign to be injured. And this result obtains even when no alternative forum exists in which the plaintiff can press its ease. As subsequent eases confirm, this rationale applies to domestic sovereigns, i.e., States and Indian nations, as much as it does to foreign sovereigns, e.g., the Philippines. See Vann v. Salazar, 883 F.Supp.2d 44, 49-51, 2011 WL 4953030, at *3-4 (D.D.C.2011); N. Arapaho Tribe, 660 F.Supp.2d at 1287; see also A128 Sys., Inc. v. Hydro-Quebec, 626 F.3d 1213, 1221 (Fed.Cir.2010).17
This rationale weighs heavily in favor of dismissing this case owing to the absence of the Tribes. Although the Tribes has decided not to intervene, it has asserted a nonfrivo-lous interest in the subject matter of this suit that might be impaired by an adverse ruling in this case. Even without a direct preclu-sive effect,18 such a ruling would be a negative precedent that the Tribes would have to confront in future litigation involving the 1864 Treaty and the associated statutes. See Acton Co., Inc. of Mass. v. Bachman Foods, Inc., 668 F.2d 76, 78-79 (1st Cir.1982) (“Even if Acton would not be legally bound, an adverse ruling would be persuasive precedent in a subsequent proceeding, and would weaken Acton’s bargaining position for settlement purposes.”); Doty v. St. Mary Parish Land Co., 598 F.2d 885, 887 (5th Cir.1979) (dismissing case under Rule 19(b) because “an unfavorable judgment in the present case would constitute precedent adverse to the [absent party’s] claims”); Johnson & Johnson, 720 F.Supp. at 1123-25 (same). And that negative precedent could ripen into binding adverse precedent were this court’s ruling affirmed by the Federal Circuit. Thus, it would appear that to proceed without the Tribes might “as a practical matter impair or impede” the Tribe’s ability to protect its sovereign interests. See RCFC 19(a); Provident, 390 U.S. at 110, 88 S.Ct. 733 (stating that when considering the “interest of the outsider whom it would have been desirable to join,” the court should consider the “practical” impact of a judgment on that interest); Picciotto v. Continental Cas. Co., 512 F.3d 9, 16-17 (1st Cir.2008).
*97Adding weight to that conclusion is the fact that any disposition here in the Tribes’ absence threatens to leave defendant subject to multiple and conflicting claims with respect to the same fishing and water rights conferred by the 1864 Treaty. Plaintiff and the Tribes, whose memberships are different,19 assert at least partially overlapping claims to those rights. To the extent, moreover, that the Tribes’ claims hinge on the removal of the Chiloquin Dam, the statute of limitations under 28 U.S.C. § 2501 is still open and will remain so until August of 2014. See Kla-math Tribe Claims Comm. I, 97 Fed.Cl. at 210. Accordingly, if this suit proceeds, the United States could find itself subject to competing claims for the same compensation. For this and other reasons, this is not a case in which the interests of the Tribes may be adequately represented by the United States. Id. at 213 n. 16.20 Per contra. Indeed, in numerous recent cases, the United States has urged this court to construe narrowly the trust and treaty responsibilities it owes to various Tribes, both for jurisdictional and merits purposes. See, e.g., Jicarilla Apache Nation v. United States, 100 Fed.Cl. 726 (2011). There is no reason to believe that defendant will be any less zealous in pressings its claims in this case, with obvious implications for the Tribes if the United States were to prevail on these points. See Provident, 390 U.S. at 110, 88 S.Ct. 733.21 Nor does this court see any way that, under RCFC 19(b)(2), “any prejudice could be lessened or avoided” if this suit were allowed to proceed.
Accordingly, a majority of the factors in RCFC 19(b) weigh heavily in favor of holding the Tribes an indispensable party. As such, the court finds that the Tribes is not only a necessary party, but also an indispensable one, compelling dismissal.22
III. CONCLUSION
The court will not gild the lily. For the foregoing reasons, the court hereby orders the Clerk to DISMISS plaintiffs complaint. No costs.
IT IS SO ORDERED.
. The present-day Klamath Tribes is a single, federally-recognized tribal government that uses the plural "Tribes” to reflect the fact that it is composed of the Klamath and Modoac Tribes, and the Yahooskin Band of Snake Indians. The court adopts the Tribes' convention of referring to itself in the singular.
. The 1954 Act created a process in which a list of remaining and withdrawing members was prepared. See 1954 Act § 3 (codified at 25 U.S.C. § 564b). Upon publication of the final roll, the Act directed that "the rights or beneficial interests in tribal property of each person whose name appears on the roll shall constitute personal property." See 1954 Act § 4 (codified at 25 U.S.C. § 564c). The 1954 Act directed that $250 be distributed, per capita, to each individual listed on the final roll. 1954 Act § 7 (codified at 25 U.S.C. § 5640; see Klamath & Modoc Tribes, 436 F.2d at 1011.
. The Klamath Judgment Distribution Act of 1965, Pub. L. No. 89-224, 79 Stat. 897 (codified, as amended, at 25 U.S.C. §§ 565-565g), addressed various claims that the Tribes had pursued against the United States. The law authorized funds to be used in settling these claims. Id. As part of this Act, the BIA could retain funds for the benefit of the Tribes “or any of its constituent parts or groups” for the purpose of "paying the usual and accustomed expenses of prosecuting claims against the United States.” 25 U.S.C. § 565.
. In their suit against Pacificorp, the Tribes sought damages for the disruption of salmon fish runs resulting from the construction and operation of government-authorized hydroelectric dams on the Klamath River. See Klamath Tribes of Or. v. Pacificorp, 2005 WL 1661821 (D.Or. July 13, 2005), aff'd, 268 Fed.Appx. 575 (9th Cir.), cert. denied, 555 U.S. 821, 129 S.Ct. 109, 172 L.Ed.2d 34 (2008).
. The United States and the Tribes jointly filed water rights claims as part of Oregon’s adjudication of the Klamath River Basin. This adjudication will conclusively quantify, pursuant to the McCarran Amendment, the water rights recognized in Adair and held in trust by the United States for the Tribes. 43 U.S.C. § 666; United States v. Oregon, 44 F.3d 758 (9th Cir.1994), cert. denied sub nom., Klamath Tribe v. Oregon, 516 U.S. 943, 116 S.Ct. 378, 133 L.Ed.2d 302 (1995).
. On February 19, 2011, the Tribes’ General Council passed Klamath Tribes General Council Resolution #2011-011, entitled "General Council Resolution Rescinding General Council Resolution #2004-002 and Reaffirming General Council Authority Over Claims of the Klamath Tribe.” This resolution rescinded a prior resolution on which plaintiff had relied in asserting that it could litigate the subject case. The February resolution further stated that "the General Council reaffirms that the Claims Committee does not speak for or represent the Klamath Tribes, nor has it ever done so.”
. See also Clinton v. Babbitt, 180 F.3d 1081, 1090 (9th Cir.1999) ("because the Hopi Tribe enjoys sovereign immunity ... it cannot be joined as a party without its consent”); Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir.1996); Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765, 771 (D.C.Cir.1986) ("tribal immunity quicldy surfaces as a crucial issue in such a suit since if the tribe is an indispensable party, and cannot be joined due to its immunity, the claim may not proceed”).
. Rule 19 formerly spoke in terms of "necessary" and "indispensable” parties. It was altered in 2007 for "stylistic” reasons but the "substance and operation of the rule ... are unchanged.” Rep. of Philippines v. Pimentel, 553 U.S. 851, 855-56, 128 S.Ct. 2180, 171 L.Ed.2d 131 (2008). The same can be said of the 2008 modification of the language of this court’s rule. For a discussion regarding the evolution of this rule, see Katherine Florey, "Making Sovereign Indispensable, Pimentel and the Evolution of Rule 19,” 58 UCLA L. Rev. 667, 673-76 (2011) (hereinafter "Florey”).
. "In general, the rules of [Court of Federal Claims] are patterned on the Federal Rules of Civil Procedure,” making "precedent under the Federal Rules of Civil Procedure ... relevant to interpret rules of [Court of Federal Claims].” Pac. Nat’l Cellular v. United States, 41 Fed.Cl. 20, 25 n. 3 (1998). As to Rule 19, the Federal Circuit has recently noted that "RCFC 19 is virtually identical to Fed.R.Civ.P. 19” and "[b]e-cause our case law on RCFC 19 is limited, we rely on cases interpreting Fed.R.Civ.P. 19 in our analysis of what is a 'necessary' party under RCFC 19.” United Keetoowah Band of Cherokee Indians v. United States, 480 F.3d 1318, 1324 n. 2 (Fed.Cir.2007).
. As the Fifth Circuit indicated shortly after Provident was decided, the essence of Rule 19 is to balance the rights of all those whose interests are implicated by the action:
The plaintiff has the right to "control” his own litigation and to choose his own forum. This "right” is, however, like all other rights, "defined” by the rights of others. Thus the defendant has the right to be safe from needless multiple litigation and from incurring avoidable inconsistent obligations. Likewise the interests of the outsider who cannot be joined must be considered. Finally there is the public interest and the interest the court has in seeing that insofar as possible the litigation will be both effective and expeditious.
Schutten v. Shell Oil Co., 421 F.2d 869, 873 (5th Cir.1970); see also Universal Reinsurance Co., Ltd. v. St. Paul Fire and Marine Ins. Co., 312 F.3d 82, 88 (2d Cir.2002); Nichols v. Rysavy, 809 F.2d 1317, 1332 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 103 (1987); Tick v. Cohen, 787 F.2d 1490, 1495 (11th Cir.1986); Matthew L.M. Fletcher, "The Comparative Rights of Indispensable Sovereigns,” 40 Gonz. L. Rev. 1, 8-9 (2004) (hereinafter "Fletcher”); 7 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, Fed. Prac. & Proc. Civ. § 1602 (2012).
. In Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2004), this court discussed why it believed that district courts lack jurisdiction over matters such as these, stating:
[T]he Federal Circuit, in Consolidated Edison Co. v. United States, 247 F.3d 1378 (Fed.Cir.2001) (en banc), instructed that "[a] party may not circumvent the [Court of Federal Claim's] exclusive jurisdiction by framing a complaint in the district court as one seeking injunctive, declaratory or mandatory relief where the thrust of the suit is to obtain money from the United States.” Id. at 1385 (quoting Rogers v. Ink, 766 F.2d 430, 434 (10th Cir.1985)); cf. Cobell v. Norton, 240 F.3d 1081, 1094-95 (D.C.Cir.2001). Moreover, the Administrative Procedure Act waives sovereign immunity for district court suits only if "there is no other adequate remedy." 5 U.S.C. § 704 (2000). Yet, to the extent that these other actions seek an accounting, that remedy is available here as a prelude to the award of monetary damages. See, e.g., Minnesota Chippewa Tribe Red Lake Band v. United States, 768 F.2d 338, 342 (Fed.Cir.1985); Klamath and Modoc Tribes v. United States, 174 Ct.Cl. 483, 486-91 (1966) (construing 28 U.S.C. § 1505); see also United States v. Mitchell, 463 U.S. 206, 219-22, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983).
More recently, the Federal Circuit has made clear that a compensation award in this court provides most plaintiffs with an "adequate remedy,” thereby precluding a district court from exercising jurisdiction over a related claim under 5 U.S.C. § 704. See Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of IIous. & Urban Dev., 480 F.3d 1116, 1126-27 (Fed.Cir.2007); Consol. Edison Co., 247 F.3d at 1384-85.
. See also Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1260 (10th Cir.2001), cert. denied, 534 U.S. 1078, 122 S.Ct. 807, 151 L.Ed.2d 693 (2002); Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 358 (2d Cir.2000); Pasco Int'l (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n. 9 (7th Cir.1980) (indicating that "the absence of an alternative forum would weigh heavily, if not conclusively against dismissal”).
. See also Yashenko v. Hawaii's NC Casino Co., LLC, 446 F.3d 541, 553 (4th Cir.2006); American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1025 (9th Cir.2002) ("we have regularly held that the tribal interest in immunity overcomes the lack of an alternative remedy or forum for the plaintiffs”); Keweenaw Bay Indian Cmty. v. State, 11 F.3d 1341, 1347-48 (6th Cir.1993) (in case involving fishing rights under treaty, equity required case to be dismissed where two absent bands were indispensable where adequate remedy was available); Florey, supra at 684-85 ("cases from the tribal context continue to form the bulk of cases in which courts contemplate dismissal because an immune Rule 19 party cannot be joined”); Fletcher, supra, at 14 ("For the most part, courts dismiss a case when an absent tribe has a significant stake in the outcome of the litigation.”); Nicholas V. Merkely, "Compulsory Party Joinder and Tribal Sovereign Immunity: A Proposal to Modify Federal Courts' Application of Rule 19 to Cases Involving Absent Tribes as 'Necessary' Parties,” 56 Okl. L. Rev. 931, 939 (2003) (“When applying Rule 19 to cases involving Indian tribes, courts generally dismiss suits because the tribes' sovereign immunity renders joinder infeasible.”).
. Other courts have employed similar reasoning. See also Seneca Nation of Indians v. New York, 383 F.3d 45, 48 (2d Cir.2004), cert. denied, 547 U.S. 1178, 126 S.Ct. 2351, 165 L.Ed.2d 278 (2006); Kickapoo Tribe, 43 F.3d at 1496; Florey, supra at 686.
. See Meirill Lynch, Pierce, Fenner & Smith, Inc. v. ENC Corp., 464 F.3d 885 (9th Cir.2006); In re Republic of Philippines, 309 F.3d 1143, 1149-52 (9th Cir.2002).
. Among other things, the Court there cited deference to the comity and dignity interests of the Republic and the Commission "in determining if, and how, the assets should be used to compensate those persons who suffered grievous injury under Marcos” and the desirability of avoiding the "specific affront that could result to the Republic and the Commission if the property they claimed is seized by the decree of a foreign court.” Pimentel, 553 U.S. at 866, 128 S.Ct. 2180.
. For nearly two centuries, the Supreme Court has described Indian tribes as "domestic dependent nations.” Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831) (Marshall, C.J.); see also United States v. Lara, 541 U.S. 193, 204-05, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004).
. As several courts have noted, it is difficult to determine the preclusive effect of a ruling in later lawsuit. That is particularly true here given the debates regarding the legal relationship between plaintiff and the Tribes. See Huber v. Taylor, 532 F.3d 237, 250 (3d Cir.2008) ("[i]t would be premature for this Court to endeavor to decide whether [the absent party is] in privity in bringing the instant action, for purposes of determining the preclusive effect of this action on a later lawsuit, where the potential later lawsuit is yet to be brought, and where the instant action has not even run its course yet”) (quoting Johnson & Johnson v. Coopervision, Inc., 720 F.Supp. 1116, 1124 (D.Del.1989)).
. While plaintiff and the Tribes dispute the precise contours of the other’s membership, they both agree that an award to the other would provide a windfall to unentitled individuals while denying certain entitled individuals a share. Given this, it is apparent that if the Tribes had intervened in this action, the court would have been forced to determine how to allocate any resulting judgment, requiring it to wade into disputes not only between the claimants and the United States, but also among the claimants themselves. See Makah Indian Tribe, 910 F.2d at 559-61 (holding absent tribe was indispensable where case involved "potential intertribal conflict”).
. See also Sw. Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1154 (9th Cir.1998); Ra-mah Navajo School Bd., Inc. v. Babbitt, 87 F.3d 1338, 1351-52 (D.C.Cir.1996); Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F.Supp.2d 295, 315 (W.D.N.Y.2007).
. To be sure, the court is discomforted by the prospect of dismissing a suit in which the Tribes has claimed that its interests may be impaired, but, nonetheless, has elected not to intervene. But, at least in tribal cases, the weight of authority takes the view that an essential aspect of sovereignty is to decide when not to assert an interest in the suit. See Kickapoo Tribe, 43 F.3d at 1498 ("[fjailure to intervene is not a component of the prejudice analysis where intervention would require the absent party to waive sovereign immunity”); Pueblo of Sandia v. Babbitt, 47 F.Supp.2d 49, 54 (D.D.C.1999); cf. School Dist. of City of Pontiac v. Sec’y of U.S. Dept. of Educ., 584 F.3d 253, 281 (6th Cir.2009), cert. denied, U.S. -, 130 S.Ct. 3385, 177 L.Ed.2d 302 (2010) ("When States stick their heads in the sand for nearly five years of litigation about a high-profile lawsuit, it is difficult to say that proceeding without them will impair their interests — which so far seem focused above all on not being forced to take a public stand on the issues presented.”); see also Florey, supra at 686-87 ("When considering the extent of Rule 19(b) prejudice to a party, some courts have cautioned against attaching any weight to an immune party’s failure to intervene.”); One can imagine a number of reasons why politically, legally, tactically or practically, the Tribes may wish not to assert their rights in a given suit. See Fletcher, supra, at 121-123; see generally, Angela Riley, "Good (Native) Governance," 107 Colum. L. Rev. 1049, 1111-13 (2007) (discussing situations in which tribes have and have not waived their sovereign immunity).
.Because of this ruling, the court will deny, as moot, a motion filed by plaintiff to amend its complaint. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218548/ | 5 U.S.C. §§ 5544(a) & 5546(a) — Sunday Premium Pay Statute; Rules of the United States Court of Federal Claims (“RCFC”), RCFC 23(a) Class Action, RCFC 23(b). Class Actions Maintainable, RCFC 23 (c) Class Certification Order.
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’ MOTION TO AMEND CERTIFICATION OF CLASS ACTION
BRADEN, Judge.
This Memorandum Opinion And Order resolves Plaintiffs’ Motion To Amend Certification Of Class Action Including Points And Authorities In Support Thereof, pursuant to Rule 23 of the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons discussed herein, Plaintiffs have failed, at this juncture, to establish, by a preponderance of the evidence, the requirements .of RCFC 23.
I. RELEVANT FACTS.1
Originally enacted as Section 405 of the Federal Salary and Fringe Benefits Act of 1966, the Sunday Premium Pay Statute ensures that certain federal employees receive additional compensation for work performed on Sundays. See Federal Salary and Fringe Benefits Act of 1966, Pub.L. No. 89-504, § 405(c), 80 Stat. 288, 297-98 (1966) (codified as amended at 5 U.S.C. § 5546(a)). The Premium Pay Statute applies to the majority of executive agency employees and to “prevailing rate” government employees.. See 5 U.S.C. §§ 5544(a),2 5546(a).3
On May 26, 2009, the United States Court of Appeals for the Federal Circuit held that “the word ‘employee,’ as used in Section 5546(a) of the Premium Pay Statute, clearly includes those who work part time.” See Fathauer v. United States, 566 F.3d 1352, 1354-57 (Fed.Cir.2009). In response to this decision, the Office of Personnel Management (“OPM”) issued Compensation Policy Memorandum (CPM) 2009-21 to inform government agencies of this decision and provide guidance to affected agencies as to how to process administrative claims by part-time employees who were denied Sunday premium pay. Amend. Compl. at 4. Specifically, *167OPM instructed the agencies to compute Sunday premium pay and interest retroactively to May 26, 2009 — the date of the Fa-thauer decision — and distribute that pay to eligible part-time employees. Amend. Compl. at 4. To prove eligibility, part-time employees were required to file an administrative claim with the agency where they were employed. Amend. Compl. at 4. The administrative claim procedures placed the burden of proof on the employees to show, through documentation, that he or she was a part-time employee who qualified for Sunday premium pay, but had not received such compensation. Amend. Compl. at 8.
In accordance with OPM’s guidance, several agencies, including the United States Department of Veterans Affairs (the “VA”), the Department of Commerce, and the Department of Defense established internal administrative claims procedures to receive submissions from part-time employees entitled to back pay and interest. Mot. Am. Cert. Cl. at 7-10.
In 2011, OPM amended its regulations to reflect the Fathamr decision. See 76 Fed. Reg. 52, 537, 52, 538 (Aug. 23, 2011) (codified at 5 C.F.R. §§ 532.509, 550.103, and 550.171(a)).
II. PROCEDURAL HISTORY.
On October 14, 2011, Annette Jones, Norman Sampson, Roland Simmons, and Hazella Thornhill (hereinafter “Plaintiffs”) filed a Class Action Complaint in the United States Court of Federal Claims and a Motion To Certify Class, for themselves and others similarly situated, seeking Sunday Premium Pay and interest dating back to May 26, 2003. This case was assigned to Judge Francis M. Allegra. On November 2, 2011, the Government filed an Unopposed Motion, Out Of Time, For Enlargement Of Time To Respond To Plaintiffs’ Motion To Certify Class. On November 3, 2011, the court issued an Order staying Plaintiffs’ October 14, 2011 Motion To Certify Class, subject to further order. On December 5, 2011, the Government filed an Unopposed Motion For Enlargement Of Time To Respond To Plaintiffs’ Complaint. On December 7, 2011, the court granted-in-part and denied-in-part the Government’s December 5, 2011 Unopposed Motion For Enlargement Of Time, ordering the Government to file a Response oh, or before, February 10, 2012.
On December 27, 2011, Plaintiffs filed an Amended Complaint. On February 10, 2012, the Government filed an Answer.
On April 2, 2012, the parties filed a Joint Preliminary Status Report. On April 27, 2012, the court convened a preliminary status conference. On April 30, 2012, the court issued a Scheduling Order for the Government to file a partial Motion To Dismiss for lack of subject-matter jurisdiction on, or before, May 14, 2012, and staying discovery until further order.
On May 14, 2012, the Government filed a Motion To Partially Dismiss Plaintiffs’ Complaint. On June 14, 2012, Plaintiffs filed an Opposition. On June 15, 2012, Plaintiffs filed an Unopposed Motion For Leave To File Corrected Brief and attached the corrected brief thereto. On June 18, 2012, the court granted Plaintiffs’ June 15, 2012 Unopposed Motion For Leave. On July 2, 2012, the Government filed a Reply. On July 10, 2012, Plaintiffs filed a Motion For Leave To File Surreply, that the court denied on July 16, 2012.
On August 23, 2102, the Government filed a Status Report, notifying the court of the ruling in Gross v. United States, 106 Fed.Cl. 369 (2012), a civilian back pay case, that denied a Motion For Class Certification.
On January 2, 2013, the court directed the parties to file a memorandum responding to questions posed by the court regarding the parties’ briefing relating to the Government’s May 14, 2012 Partial Motion To Dismiss. On January 30, 2013, both parties submitted responsive memoranda.
On October 2, 2013, the court issued an Opinion finding that Plaintiffs’ claims for Sunday premium pay that accrued before October 14, 2005 were barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501. See Jones v. United States, 113 Fed.Cl. 39, 43 (2013) (“Jones /”).
On November 20, 2013, the parties filed a Joint Status Report requesting that the court *168lift the November 3, 2011 stay on Plaintiffs’ October 14, 2011 Motion To Certify Class. That same day, Plaintiffs filed a Renewed Motion To Certify Class. On November 21, 2013, the court entered an Order lifting the stay and scheduling briefing.
On December 20, 2013, Plaintiffs filed an Unopposed Motion For Leave To File A Corrected Copy Of Their Brief In Support Of Plaintiffs’ Motion For Class Certification. That same day, the Government filed an Unopposed Motion For An Enlargement Of Time To Respond. On January 6, 2014, the court granted both motions.
On February 3, 2014, the Government filed an Opposition To Plaintiffs’ Motion To Certify Class. On March 6, 2014, Plaintiffs filed a Reply.
On October 20, 2014, the court issued a Memorandum Opinion and Order granting-in-part and denying-in-part Plaintiffs’ Motion For Class Certification. See Jones v. United States, 118 Fed.Cl. 728 (2014) (“Jones II”). Therein, the court determined that the proposed class would be limited to part-time VA employees subject to 5 U.S.C. §§ 6544(a), 6646(a). Specifically, the court rejected Plaintiffs’ attempt to include employees from other federal agencies in the class, because Plaintiffs failed to show how Government-wide inclusion satisfied the requirements for class certification under RCFC 23. See Jones II, 118 Fed.Cl. at 73-74.
On December 9, 2014, Plaintiffs filed an Unopposed Motion To Appoint Counsel, Of Counsel,’ And Class Action Administrator, that the court granted the next day. That motion included a proposed official court notice and a proposed postcard notice to be circulated to putative class members, as well as a proposed protective order.
On January 7, 2016, the Government was ordered to notify the court whether it consented to the proposed notice, postcard notice, and protective order. On January 28, 2016, the Government filed a Response consenting to the proposed postcard and attaching a new proposed court notice and protective order to which the parties conferred and agreed. On January 30, 2016, the court issued a Protective Order. That same day, the court approved the postcard notice and class notice, and entered a Scheduling Order for the distribution of class notices and submission of opt-in claim forms on, or before, February 12,2016.
On February 6, 2016, Plaintiffs filed an Unopposed Motion For Reconsideration of the court’s January 30, 2016 Scheduling Order. On February 6, 2016, the court granted-in-part Plaintiffs’ February 5,2015 Motion For Reconsideration and ordered the Class Action Administrator to distribute a notice to the class on, or before, April 9, 2015, and required class members’ opt-in claim forms to be postmarked on, or before, July 9, 2015. On April 23, 2015, the court issued another Scheduling Order.
On June 23, 2015, the ease was reassigned to the undersigned judge.
On October 12, 2015, Plaintiffs filed a Motion To Amend Certification Of Class Action Including Points And Authorities In Support Thereof to seek the inclusion of part-time federal employees from agencies other than the VA Therein, Plaintiffs included the Declaration of Daniel Kowalski (“10/12/15 Kowal-ski Deck”) as Exhibit 6. On October 28, 2015, the Government filed an Unopposed Motion To Enlarge Time To Respond To Motion To Amend Class, that the court granted the next day: On November 25, 2015, the Government filed another Unopposed Motion To Enlarge Time To Respond To Motion To Amend Class, requesting a 15-day extension. On November 30, 2015, the court granted the Government’s November 25, 2015 Unopposed Motion to Enlarge Time and issued an Order on December 4, 2015 to inform the Government that no further extensions of time would be granted. On December 14, 2015, the Government filed an Opposition To Plaintiffs’ Renewed Motion To Certify Class (“Gov’t Opp.”). On December 28, 2015, Plaintiffs filed a Reply (“Pis. Reply”).
III. DISCUSSION.
A. Jurisdiction.
The Tucker Act provides that the United States Court of Federal Claims has jurisdiction over “any claim against the United States founded either upon the Constitu*169tion, 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) (2006). The Tucker Act, however, does not, by itself, confer jurisdiction on the court. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (“The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. The Court of Claims has recognized that the Act merely confers jurisdiction upon it whenever the substantive right exists.”). Therefore, a plaintiff must identify an independent basis by way of a contract, federal statute, regulation, or the Constitution upon which it is entitled to monetary payment from the federal government. United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 680 (1983) (“The claim must be one for money damages against the United States and the claimant must demonstrate that the source of substantive law he relies upon can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.”) (internal citations omitted); Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2006) (“[I]n order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages. In the parlance of Tucker Act cases, that source must be money-mandating.”) (internal citations and quotations omitted).
In this case, the December 27, 2011 Amended Complaint alleges that Plaintiffs and those similarly situated, have been wrongfully deprived of Sunday premium pay, pursuant to 5 U.S.C. § 6644(a) or 6 U.S.C. § 6546(a). Amend. Compl. ¶¶ 5-7. As such, the December 27, 2011 Amended Complaint properly identified and pled an independent claim for money damages. Accordingly, the court has jurisdiction over the class alleged in the December 27, 2011 Amended Complaint.
B. Standard Of Review On A Motion For Class Certification.
“[T]he party moving for class certification bears the burden of establishing, by a preponderance of the evidence, the requirements set forth in RCFC 23.” Rasmuson v. United States, 91 Fed.Cl. 204, 210 (2010); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (holding that the relevant inquiry on a motion for class certification is not “whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met”).
RCFC 23(a), (b) provides:
(a) Prerequisites. One or more members of a class may sue as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. A class action may be maintained if RCFC 23(a) is satisfied and if ... (2) the United States has acted or refused to act on grounds generally applicable to the class; and (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by class members; ... and (D) the likely difficulties in managing a class action.
RCFC 23(a), (b).
RCFC 23(a) and (b) set forth five requirements:
(i) numerosity — a class so large that join-der is impracticable; (ii) commonality— *170in terms of the presence of common questions of law or fact, the predominance of those questions, and the treatment received by the class members at the hands of .the United States; (in) typicality — that the named parties’ claims are [typical] of the class; (iv) adequacy — relating to. fair representation; and (v) superiority — that a class action is the fairest and most efficient way to resolve a given set of controversies.
Barnes v. United States, 68 Fed.Cl. 492, 494 (2006) (bolded in original) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (regarding Fed.R.Civ.P. 23(a), (b))).
Since the RCFC 23 requirements are in the conjunctive, failure to satisfy any requirement “is fatal to a motion for class certification.” Testwuide v. United States, 56 Fed.Cl. 755, 761 (2003). Therefore, to certify a class, the court must determine if plaintiffs have satisfied the prerequisites of RCFC 23 by a preponderance of the evidence. See Falcon, 457 U.S. at 161, 102 S.Ct. 2364 (holding that class actions “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied”). This analysis requires the court to “make the factual and legal inquiries necessary to ensure that class certification is appropriate.” Christopher Vill. v. United States, 50 Fed.Cl. 635, 642 (2001).
In addition, “[a]n order that grants or denies a class certification may be altered or amended before final judgment.” RCFC 23(c)(1)(C) (emphasis added).
C. Plaintiffs’ October 12, 2015 Motion To Amend Class Certification.
1. Plaintiffs’ Argument.
Plaintiffs argue that the court should amend the current class to include the '“100 or more part-time employees [working at agencies other than the VA, who] have been shut out of the courthouse[,]” pursuant to the court’s decision in Jones II. Mot. Am. Cert. Cl. at 4.
With respect to the element of commonality, “there is no evidence in the record that participation of employees of different agencies, statutes, regulations and policies would create the real potential of different questions of fact and law arising in the case.” Mot. Am. Cert. Cl. at 13 (internal quotation marks omitted). In addition, Plaintiffs disagree with Jones II-’s. reasoning that “[d]e-termining whether employees have already received the Sunday premium pay owed to them will differ depending on which agency employed them[,]” because the amounts disbursed by each federal agency “must be specifically identified as such in the electronic records” and “recoverable by standard computerized queries for a multitude of reasons,” including “federal and state taxes, retirement benefits, insurance, workers’ compensation.” Mot. Am. Cert. Cl. at 13-14. Moreover, “[i]n light of the Government-wide injury which was inflicted, this case simply cannot produce a different set of questions of fact and law if it applies to all federal agencies that employed eligible part-time employees, rather than just to the VA.” Mot. Am. Cert. Cl. at 20.
To support this contention, Plaintiffs proffer the Declaration of Daniel Kowalski, a human resources professional, with a 34-year career in the government, and experience as an instructor to other human resources professionals in various government agencies. Mot. Am. Cert. Cl. at 22. (citing 10/12/15 Kowalski Deck). Mr. Kowalski advised the court that “all agencies utilize electronic computerized payroll and time and attendance systems to compute such back pay and interest in the regular and ordinary course of business.” Mot. Am. Cert. Cl. at 22-24 (citing 10/12/15 Kowalski Decl. at 4-5). Therefore, the decision in Jones II, that employees from agencies other than the VA must be excluded from the class, because different federal agencies would have to order computerized searches of payroll records, is “inexplicable.” Mot. Am. Cert. Cl. at 22 (citing 10/12/15 Kowalski Deck at 22).
With respect to typicality, “by- definition, all part-time employees who worked scheduled non-overtime Sunday shifts suffered precisely the same monetary injury,” irrespective of the specific federal agency where *171each part-time employee worked. Mot. Am. Cert. Cl. at 11.
Finally, Plaintiffs argue that “restoring the inclusion in the certified class of eligible part-time employees of multiple federal agencies would be a clear demonstration of RCFC 23’s utility and fairness.” Mot. Am. Cert. Cl. at 24-25. Other federal agencies have demonstrated, by “identifying all eligible part-time employees who were scheduled to work on Sundays,” that “no significant problems [will] arise which will require this [c]ourt to refuse to include eligible part-time employees of such agencies — and all others— within the certified class.” Mot. Am. Cert. Cl. at 6, 25. Moreover, each agency will be able to document the details of payroll and scheduling relating to eligible part-time employees, because “the agencies have retained computerized files which unmistakably prove, or disprove, the validity of each employees’ entitlement to back pay.” Mot. Am. Cert. Cl. at 25.
2. The Government’s Response.
The Government responds that Plaintiffs fail to satisfy the predominant element of this commonality requirement, because the only common issue of law — whether part-time employees are entitled to Sunday premium pay, pursuant to 5 U.S.C. § 5546(a), has been resolved by the Federal Circuit in Fathauer. Gov’t Opp. at 10. The remaining issues involved in Plaintiffs’ claims are fact-specific inquiries unique to each agency. Gov’t Opp. at 10. Specifically, individualized factual inquiry is necessary for the court to identify part-time employees, because: (1) in 2006, payroll processing for Federal executive branch employees was handled by 26 providers; (2) “the payroll record for former employees generally are not maintained at the same location as the payroll providers”; and (3) “[p]ayroll records may contain some information about the class members, but it is necessary to identify class members before examining their pay records.” Gov’t Opp. at 10, 11. In addition, individualized inquiries are necessary to determine whether the putative class members have already received back pay, because although “payroll processing is now consolidated across most of the Government, each agency handles time-and-attendance independently. As a result, there is a wide variance of time-and-attendance systems across Government agencies.” Gov’t Opp. at 13.
In addition, the United States has not acted or refused to act on grounds generally applicable to the putative class, as required by RCFC 23(b)(2). Gov’t Opp. at 14-15. Instead, “[Plaintiffs rely solely on ... Fa-thauer ... justifying relief for the whole class retroactive to October 14, 2005,” but since Fathauer, “Government agencies have taken a variety of steps to identify potential eligible employees and to make payments of back pay and interest[,]” even though “the nature of the remedial measures varies by agency[.]” Gov’t Opp. at 14.
The Government also argues that Plaintiffs fail to satisfy the typicality requirement of RCFC 23(a)(3). Gov’t Opp. at 15-16 (citing Curry, 81 Fed.Cl. at 335; Geneva Rock Products, Inc. v. United States, 100 Fed.Cl. 778, 790 (2011)). In this case, “[P]laintiffs cite no evidence that the employees of other agencies have not been paid in accordance to OPM’s instructions” as named Plaintiffs in this case. Gov’t Opp. at 16. In addition, although “individualized damage determinations do not preclude class certification, the [issues] in this case extend beyond individualized damage[ determinations.]” Gov’t Opp. at 16. Therefore, Plaintiffs have not shown that their claims are typical of the claims of the proposed class. Gov’t Opp; at 17.
Finally, the Government adds that Plaintiffs have not established that an amended class action is superior to other available methods of adjudication. Gov’t Opp. at 17 (citing RCFC 23(b)(3)). In this case, “the [c]ourt would need to individually assess each potential class member’s entitlement to recovery in light of the different agency processes for implementing OPM’s Fathauer instructions and for processing administrative claims.” Gov’t Opp. at 19. Moreover, “[i]n its previous ruling on this issue[,] the [c]ourt held that ‘the cosi/benefit analysis tips decidedly against class certification[.]’” Gov’t Opp. at 18. In light of these factors, “the creation of a Government-wide class would be unmanageable.” Gov’t Opp. at 19.
*1723. Plaintiffs’ Reply.
As it relates to commonality, Plaintiffs reply that this court “carefully analyzed and rejected” the Government’s argument that the Fathauer decision resolved the common question of law at issue in this case. Pis. Reply at l.4 In addition, Plaintiffs argue that “the Government does not and cannot, dispute the unconverted proof that[,] until the Federal Circuit’s Fathauer decision on May 26, 2009,” OPM prohibited every federal agency from paying Sunday premium pay to all General Schedule (“GS”) and Wage System (“WG”) employees. Pis. Reply at 1-2. This is “clear proof that the United States acted ... on grounds generally applicable to the class.” Pis. Reply at 2. Moreover, the Government’s argument that “sophisticated computerized payroll systems are woefully inadequate to identify ... class members and ... to compute ... back pay” are “boilerplate objections [that] have been rejected again and again by this [c]ourt. [In fact, three other judges of the court] also joined [the primary assigning judge in this case] in rejecting these exaggerated objections in a plethora of class actions such as Adams, DeMons, Garcia, Filosa, Curry, Kandel, Athey, and Barnes [.]” Pis. Reply at 2-3. Moreover, “Plaintiffs have produced uncon-troverted evidence contained in the sworn Declaration of Mr. Daniel Kowalski” to support certification. Pis. Reply at 3.
With respect to typicality, Plaintiffs argue that “class action covers ... [e]very formerly employed part-time employee who worked on Sundays in the three and one-half years (3 and 1/2) prior to May 26, 2009[,] suffer[ing] precisely the same economic injury with respect to the loss of back pay and interest as did Plaintiffs.” Pis. Reply at 6. “The effect of the Fathauer decision, and OPM’s new regulations applicable to both GS and WG employees, unquestionably demonstrated that there was a systemic policy by every agency to deny premium pay to all part-time employees who worked on Sundays.” Pis. Reply at 6.
As to superiority, Plaintiffs argue that a class action is the most efficient and fairest method of resolution. Pis. Reply at 7. Even if the Government took internal remedial action within two of its agencies, “[t]he Government refuses to disclose the number of former (as well as currently employed) part-time employees who are eligible to receive back pay, but ... have not been paid damages.” Pis. Reply at 7. Moreover, OPM’s notice “placed the burden on the part-timers to produce all the evidence with respect to every Sunday they worked for the previous six years despite the fact that their agency had the computerized evidence^]” Pis. Reply at 7.
4. The Court’s Resolution.
For a Motion For Class Certification to be successful, the putative class representatives must demonstrate, by a preponderance of the evidence, that: (1) numerosity; (2) commonality; (3) typicality; (4) adequacy; and (6) superiority are satisfied. See Barnes, 68 Fed.Cl. at 494.
i. Whether The Proposed Class Satisfies The Numerosity Requirement.
The Government does not dispute that nu-merosity is satisfied. For this reason, this court is satisfied that the requirements of RCFC 23(a)(1) have been met.
ii. Whether The Proposed Class Satisfies The Commonality Requirement.
To find commonality, the court must determine whether: (a) there are questions of law or fact common to the class; (b) those common questions predominate over any questions affecting only individual members; and *173(c) the “United States has acted or refused to act on grounds generally applicable to the class.” RCFC 28(a)(2), (b)(2), (b)(3).
a. Whether A Question Of Law Or Fact Common To The Class Exists.
RCFC 23(a)(2) requires that questions of law or fact are common to the class. “[T]he common contention ... must be of such a nature that is capable of class-wide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). In this case, the Government concedes that the question of “whether part-time employees are entitled to Sunday premium pay pursuant to 5 U.S.C. § 5546(a),” is a common question of law, but because this issue was resolved in Fathauer, there remains no common question of law. Gov’t Opp. at 10.
For this reason, the court has determined that there is a common question of law applicable to the class,
b. Whether The Common Question Of Law Predominates Over Questions Affecting Individual Members.
In this case, there is a credible dispute as to whether individual questions of fact predominate over the common question of law. Although the court is cognizant of RCFC 23(c)(l)(A)’s directive to determine certification of a class “as soon as practicable,” in light of the evidence currently available, the court has determined that it is not now practicable to amend the class and make a certification determination. See 6 CHARLES Alan Wright & Arthur R. Miller, Federal PraCtice & Procedure § 1785.8 (3d ed.) (“[I]n some cases, even if a motion for class certification is made at an early stage, the determination under subdivision [RCFC] 23(c)(1) may have to be delayed substantially[,] because of an inability to determine whether class-action treatment is appropriate based on the currently available evidence^]”); see also Greenlee Cty. v. United States, 487 F.3d 871 (Fed.Cir.2007) (recognising that “there may be many valid reasons justifying the deferral” of a class certification decision); RadioShack Corp. v. United States, No. 06-28T, 2009 WL 514065, at *3 (Fed.Cl. Feb. 27, 2009) (finding that a class certification determination was not practicable because there was a need to engage in further discovery).
For these reasons, the court has determined that Plaintiffs have not met their burden of proof as to predominance, at this juncture, prior to the further development of the facts. At the close of trial, Plaintiffs may refile their Motion To Amend Certification, without prejudice.
IV. CONCLUSION.
For these reasons, the court denies Plaintiffs’ October 12, 2015 Motion To Amend Certification of Class Action, subject to further development of the facts.
IT IS SO ORDERED.
. The relevant facts were derived from: (1) Plaintiffs’ December 27, 2011 Amended Complaint ("Amend. Compl.”); and (2) Plaintiffs' October 12, 2015 Motion To Amend Certification Of Class Action ("Mot. Am. Cert. CL”).
. Section 5544(a) of the Sunday Premium Pay Statute, in relevant part, provides:
An employee subject to this subsection whose regular work schedule includes an 8-hour period of service a part of which is on Sunday is entitled to additional pay at the rate of 25 percent of his hourly rate of basic pay for each hour of work performed during that 8-hour period of service.
5 U.S.C. § 5544(a).
.Section 5546(a) of the Sunday Premium Pay Statute, in relevant part, provides:
An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work ... a part of which is performed on Sunday is entitled to pay for the entire period of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of basic pay.
5 U.S.C. § 5546(a).
. In the December 28, 2015 Reply, Plaintiffs explain that the court previously rejected the Government's current argument relating to commonality:
[I]n DeMons v. United States, 119 Fed.Cl. 345 (2014), the Government raised precisely the same argument on the ground that the court had decided the liability issue in Adams v. United States, 93 Fed.Cl. 563 (2010), and thus there was no common issue of law in DeMons [.] This court carefully analyzed and rejected the argument: 'But, the resolution of the legal question in Adams does not negate commonality in DeMons,' See also the same result in Garcia v. United States, Case No. 13-1024 (2015)[,] The court in Curry v. United States, 81 Fed.Cl. 328, 334 (2008) reached the same conclusion.
Pis. Reply at 1 (citations omitted). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218549/ | ORDER
SUSAN G. BRADEN, Judge
Pursuant to the April 6, 2016 mandate of the United States Court of Appeals for the Federal Circuit, the permanent injunction is dissolved. This case is transferred to the United States District Court for the Eastern District of Washington, as requested by Plaintiffs April 7, 2016 Motion to Transfer (ECF No. 64). Pursuant to 28 U.S.C. § 1631, this is a “disposition consistent with the [mandate].” See Hymas v. United States, 810 F.3d 1312, 1330 (Fed.Cir. 2016); see also id. at 1330 n. 10 (“Because the Claims Court does not possess jurisdiction ... we need not address its findings that the Service violated various federal procurement laws and the APA [Administrative Procedures Act.]”).
Accordingly, the Government’s April 7, 2016 Motion for Reconsideration and Motion to Dismiss (ECF No. 66) is denied as moot. The Clerk of Court will transfer the case.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218550/ | Pro Se Plaintiff; Lack of Subject Matter Jurisdiction; Breach of Contract; Collateral Estoppel; Third Party Beneficiary, ORDER
HORN, J.
FINDINGS OF FACT
This is pro se plaintiff Corey Lea’s third action initiated in the United States Court of Federal Claims arising from the same underlying facts filed within a two-year time period. Plaintiff alleges that, in November 2007, the now-dissolved company Corey Lea, Inc. obtained a loan from Farmers National Bank to purchase farm property.2 This loan was guaranteed by the United States Department *207of Agriculture (USDA) Farm Service Agency (FSA) through a loan guarantee agreement. As a result, Farmers National Bank held a first mortgage on 90 percent of the property, and the USDA FSA held a second mortgage on 10 percent of the property.3 ' Mr. Lea attached the loan guarantee agreement to the complaint filed in the current action, which identifies “COREY LEA, INC.” as the “Borrower,” and “FARMERS NATIONAL BANK” as the “Lender.” (capitalization in original). Although plaintiff did not provide a copy of the second mortgage held by the USDA FSA with his complaint, defendant provided a copy of this second mortgage as an attachment to its motion to dismiss. This second mortgage document identifies the mortgagor as “COREY LEA, INCORPORATED.” (capitalization in original).
Subsequently, in December 2007, plaintiff alleges that he secured a loan from Independence Bank to fund the construction of a new house on the property and to refinance the existing loan from Farmers National Bank.4 According to plaintiff, he requested a loan subordination from the USDA, however, the USDA denied the request after conducting an appraisal of the property and appraising the value of the property at $18,035.00 less than the amount of debt that plaintiff would incur with the new loan, if completed. Following this denial; plaintiff filed a complaint with the USDA Office of Civil Rights, which was received by the USDA on May 1, 2008, alleging that the denial of the loan resulted from racial discrimination. It is not clear from the record in the above-captioned case how these allegations were resolved.
In February 2009, Farmers National Bank initiated a foreclosure action on the farm property due to a failure to make payments for five months. Plaintiff alleges that, by July 28, 2009, the office of the USDA FSA responsible for adjudicating plaintiffs discrimination complaint had requested suspension of the foreclosure action. In October 2009, however, Farmers National Bank was granted a Judgment and Order of Sale as to the farm property. Thereafter, plaintiff filed multiple suits in the United States District Court for the Western District of Kentucky, and the United States Court of Federal Claims, “seeking an injunction against the farm’s foreclosure as well as damages for the USDA’s alleged earlier discrimination.”
In addition to the above-captioned case, which the court refers to as Lea TV, plaintiff, Corey Lea, has filed at least eleven separate actions within the federal judiciary system based on the same set of facts, including: Lea v. United States, No. 3:16-CV-00735 (M.D. Tenn. April 13, 2016) (ongoing); Lea v. Farmers Nat’l Bank, No. 3:15-CV-00595 (M.D.Tenn. May 27, 2015) (finding plaintiffs case “to be legally frivolous by reason of improper venue”); Lea v. United States, No. 14-44C, 2014 WL 2101367 (Fed.Cl. May 19, 2014) (Lea I), aff'd in part, vacated in part, 592 Fed.Appx. 930 (Fed.Cir.2014) (Lea II) (voluntarily dismissed); Lea v. United States, 120 Fed.Cl. 440 (Lea III) (granting defendant’s motion to dismiss); Lea v. United States, No. 14-CV-00040-TBR (W.D.Ky. May 29,2014) (dismissing plaintiffs complaint for violation of the sanctions against him); Lea v. United States, No. 13-CV-00110-JHM (W.D.Ky. Feb. 6, 2014) (finding plaintiffs claims frivolous and issuing sanctions enjoining plaintiff from filing related civil claims), aff'd, No. 14-5493 (6th Cir. Dec. 18, 2014), cert. denied, Case No. 14-8315 (April 6, 2015); Lea v. United States, No. 10-CV-00052-JHM (W.D.Ky. Jul. 11, 2013) (granting defendants’ motion to dismiss), aff'd, No. 14-5445 (6th Cir. Dee. 18, 2014), cert. denied, Case No. 14-8315 (April 6, 2015); Lea v. United States, 1:11-CV-00094-JHM (W.D.Ky. Aug. 26, 2011) (transferred to Sixth Circuit at plaintiffs request); Lea v. United States, No. 10-CV-00029-JHM (WD.Ky. Jan. 19, 2011) (granting defendants’ motion to dismiss), aff'd, No. 11-5969 (6th Cir. Aug. 7, 2013); Lea v. Kentucky, 1:09-CV-0056-*208TBR (W.D. Ky. April 20, 2010) (granting defendants’ motion to dismiss); Lea v. Farmers Nat’l Bank, 1:09-CV-00075-JHM-ERG (W.D.Ky. July 21, 2009) (granting defendants’ motion to dismiss and finding that pro se plaintiff Corey Lea cannot pursue claim on behalf of corporation, Corey Lea, Inc.).
A number of pro se, plaintiff Corey Lea’s prior complaints have been dismissed and found frivolous. For example, the United States District Court for the Western District of Kentucky specifically issued sanctions against plaintiff for his “submission of frivolous and duplicative lawsuits” and enjoined “Plaintiff Corey Lea” and his corporate affiliate, “Corey Lea, Inc.,” from, “filing any civil lawsuit in the United States District Court, Western District of Kentucky alleging or asserting factual or legal claims based upon or arising out of any of the legal or factual claims alleged” in plaintiffs previous actions. Lea v. United States, No. 13-CV-00110-JHM, EOF No. 64 (emphasis in original). The District Court explained:
Plaintiffs repeated filing of civil actions rehashing the same arguments is improper and harassing and clearly unwarranted. His submission of frivolous and duplicative lawsuits serves no legitimate purpose, places a tremendous burden on this Court’s limited .resources, and deprives other litigants with meritorious claims of the speedy resolution of their eases. The similarity of Plaintiffs actions and the timing evince his bad faith and improper purpose in filing the present action. As such, it is appropriate for this Court to impose sanctions upon Plaintiff.
Id,
The procedural history of plaintiffs two previous actions filed in the United States Court of Federal Claims, Lea I, ease no. 14-044 and Lea III, case no. 14-1070, has a significant impact on the above-captioned case currently under review. Plaintiffs complaint in the above-captioned case is largely repetitive of the very claims included in those two prior cases.5 In January 2014, plaintiff filed his first complaint in this trial court based on the same facts that are alleged in plaintiffs present complaint. See Lea I, 2014 WL 2101367. The Lea I complaint alleged numerous claims, including tortious interference, fraud, and breach of contract and sought monetary, declaratory, and injunctive relief. See id. 'at *3-5. In that case, Judge Allegra of this court initially granted defendant’s motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim and dismissed plaintiffs complaint. See id. Plaintiff appealed the decision to the United States Court of Appeals for the Federal Circuit, and, on November 7, 2014, in Lea II, the Federal Circuit affirmed the trial court’s dismissal of plaintiffs tort and fraud claims, but concluded, with regard to plaintiffs breach of contract claim, that the trial court had applied the incorrect legal standard for determining whether plaintiff was a third party beneficiary to a contract. See Lea II, 592 Fed.Appx. at 934. As a result, the Federal Circuit vacated Judge Allegra’s trial court decision with regard to plaintiffs breach of contract claim and remanded only plaintiffs breach of contract claim against the United States so that the trial court could address the breach of contract claim using the correct legal standard. See id.
Four days before the Federal Circuit issued its opinion, however, plaintiff initiated a second trial court action against the United States in the United States Court of Federal Claims, which was based on the same set of facts as the prior complaint. See Lea III, 120 Fed.Cl. 440. As noted above, this second new complaint, filed in this court on November 3, 2014,6 included the same third party beneficiary breach of contract claim put forth in plaintiffs first complaint filed in this court, Lea I, but also included some new legal theories and claims, including allegations *209rooted in the 5th and 14th Amendments to the United States Constitution. See id. at 443. As a result of plaintiffs duplicative filings, two judges of this court were concurrently adjudicating certain of plaintiffs allegations, Judge Allegra in the first trial court case, Lea I, and Judge Sweeney in the second trial court case, Lea III. In the first case; Lea I, remanded from the Federal Circuit, the only issue left for consideration was plaintiffs breach of contract claim based on a third party beneficiary theory. In Lea III, before Judge Sweeney, plaintiff raised new claims including regulatory and contractual takings, unjust enrichment, and violations of the 5th and 14th Amendments to the United States Constitution, in addition to plaintiffs previously asserted claims alleging breaches of express and implied-in-fact contracts. While Lea I was still on remand, in Lea III. Judge Sweeney granted defendant’s motion to dismiss for lack of subject matter jurisdiction on March 9, 2015, and, subsequently, denied plaintiffs motion for reconsideration on March 17, 2015. See id. at 445-47. Judge Sweeney’s March 9, 2015 decision concluded that the court lacked subject matter jurisdiction over plaintiffs noncontractual claims, including his claims based on a 5th Amendment taking, due process under the 6th and 14th Amendments to the United States Constitution, unjust enrichment, conspiracy, and an implied-in-fact contract. See id. at 445-46. Judge Sweeney also noted that, with regard to plaintiffs contractual claims, “plaintiff is already pursuing his claim that the United States breached the loan agreement in his earlier-filed ease,” (Lea I on remand) and that “[i]n both cases pending in this court, plaintiff asserts claims against the United States for breach of contract arising from the foreclosure of his property.” See id. at 446, 447. Accordingly, “to promote judicial economy and conserve the parties’ resources,” Judge Sweeney dismissed “the breach-of-contract claims set forth in plaintiffs second amended complaint [in Lea III ] without prejudice.” See id. at 447.
Three days after Judge Sweeney denied plaintiffs motion for reconsideration in Lea III, on March 20, 2015, plaintiff filed his complaint in the above-captioned case, which the court refers to as Lea IV.7 Three days later, having received Judge Sweeney’s decision in Lea III, and having filed a third action in this court, Lea IV, on March 23, 2015, plaintiff moved to voluntarily dismiss the Judge Allegra case, Lea I, before the remand issue was adjudicated. Judge Allegra, therefore, dismissed the case on March 24, 2015. Given plaintiffs overlapping and duplicative maneuvers, and mindful of the procedural history and prior adjudications, this court now reviews plaintiffs complaint in this, his third, filed trial court action on the same subject matter, Lea IV.
The pro se plaintiff characterizes the complaint in the above-captioned case as a “breach of contract claim” and Fifth Amendment “takings claim.” Applying a liberal and generous interpretation to plaintiffs, somewhat unclear and rambling pleadings, and giving plaintiff the benefit of liberal construction of his pleádings as a pro se plaintiff, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652, reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972), this court has understood plaintiffs complaint as alleging that the USDA: (1) performed “Regulatory” and “CONTRACTUAL” takings through foreclosure of the farm; (2) breached the loan guarantee contract to which he was a third party beneficiary; (3) breached an implied-in-fact contract by not obeying federal regulations concerning foreclosure procedures; (4)' racially discriminated against plaintiff in conducting the appraisal of the farm property;8 (5) purposefully devalued the farm property by denying Mr. Lea’s subordination claim, breaching the duty of good faith and fair dealing;9 (6) *210breached a fiduciary duty to plaintiff by not suspending Farmers National Bank’s foreclosure on the farm property;10 (7) breached the second mortgage contract; and (8) that the government was unjustly enriched, (emphasis and capitalization in original). Plaintiff alleges that this court has jurisdiction pursuant to the Contract Disputes Act11 and the Tucker Act, 28 U.S.C. § 1491 (2012). Plaintiff indicates in his complaint that he is entitled to “‘essential reliance’” damages, “incidental or collateral damages,” and that he is seeking $3,000,000.00 in damages. Additionally plaintiff requests that “all costs of this action be taxed to the [defendant,” and that the court provide any other relief “this court may find just and proper.”
After he filed his complaint in Lea IV, and before defendant had an opportunity to respond to the complaint, plaintiff filed a motion for partial summary judgment on April 16, 2015. In response, defendant moved to dismiss plaintiffs complaint for lack of subject matter jurisdiction, for failure to state a valid claim for relief, and on collateral estop-pel grounds. The parties have fully briefed both motions in the above-captioned case Lea IV.
DISCUSSION
Although plaintiff has been denied in forma pauperis status in this case, Lea TV, and he has paid the filing fee, plaintiff had received in forma pauperis status in previous cases. This court recognizes that plaintiff is proceeding pro se in this action. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. at 520-21, 92 S.Ct. 594 (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed.Cir.2014); Diamond v. United States, 115 Fed.Cl. 516, 524 (2014), aff'd, 603 Fed.Appx. 947 (Fed. Cir.). cert. denied, — U.S. -, 135 S.Ct. 1909, 191 L.Ed.2d 766 (2015). “However, ‘ “[t]here is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.” ’ ” Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975))); see also Bussie v. United States, 96 Fed.Cl. 89, 94, aff'd, 443 Fed.Appx. 542 (Fed.Cir.2011); Minehan v. United States, 75 Fed.Cl. 249, 253 (2007). ‘While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, *211bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States, 93 Fed.Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9, 101 S.Ct, 173 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.) (“Plaintiff bears the-burden of showing jurisdiction by a preponderance of the evidence”), reh’g and reh’g en banc denied (Fed.Cir.2002)); see also Shelkofsky v. United States, 119 Fed.Cl. 133, 139 (2014) (“[Wjhile the court may excuse ambiguities in a pro se plaintiffs complaint, the court ‘does not excuse [a complaint’s] failures.’ ” (quoting Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995))); Harris v. United States, 113 Fed.Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less stringent standard, such leniency “with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.’ ” (quoting Minehan v. United States, 75 Fed.Cl. at 253)).
As a threshold matter, this court first considers defendant’s motion to dismiss for lack of subject matter jurisdiction because the case may not proceed further if the court lacks jurisdiction. See PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed.Cir.2002); see also Booth v. United States, 990 F.2d 617, 620 (Fed.Cir.1993). If the court does not have subject matter jurisdiction to consider plaintiffs claims, then plaintiffs motion for partial summary judgment becomes moot. See Booth v. United States, 990 F.2d at 620; see also Estes Express Lines v. United States, 123 Fed.Cl. 538, 550 (2015) (dismissing parties’ cross motions for summary judgment as moot because the court did not possess jurisdiction to consider plaintiffs claim). It is well established that “ ‘subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices, Inc. v. OEA Inc., 269 F.3d 1340, 1342 (Fed.Cir.2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed.Cir.1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’I Med. Ctr., — U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235 (“The objection that a federal court lacks subject-matter jurisdiction .. ■. may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed.Cir.2012) (“An objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07, 126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.); and Fanning, Phillips & Molnar v. West, 160 *212F.3d 717, 720 (Fed.Cir.1998))) (Fed.Cir.2008); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed. Cir.2011). In fact, “[sjubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where ... neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.). cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006); see also Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed.Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue.”), reh’q and reh’q en banc denied, 614 F.3d 1330 (Fed.Cir.2010). cert. denied, 562 U.S. 1169, 131 S.Ct. 909, 178 L.Ed.2d 804 (2011).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007), cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999).
When deciding a case based on a lack of subject matter jurisdiction or for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. at 94, 127 S.Ct. 2197 (“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.”' (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)))).
The doctrine of res judicata “includes the two related concepts of claim preclusion and issue preclusion.” Nasalok Coating Corp. v. Nylok Corp., 522 F.3d 1320, 1323 (Fed.Cir.2008). As articulated by the United States Supreme Court, the rule of issue preclusion, or collateral estoppel, precludes a party from re-litigating an issue that was “litigated and resolved in a valid court determination essential to the prior judgment.” New Hampshire v. Maine, 532 U.S. 742, 748-49, 121 S.Ct. 1808, 149 L.Ed.2d 968, reh’g denied, 533 U.S. 968, 122 S.Ct. 10, 150 L.Ed.2d 793 (2001). In addition, “[u]nder collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); see also United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (“Under the judicially-developed doctrine of collateral es-toppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving *213a party to the prior litigation.”). “When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 26 L.Ed.2d 469 (1970). The United States Supreme Court has explained that issue preclusion guards against “the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 163-54, 99 S.Ct. 970, 69 L.Ed.2d 210 (1979) (footnote omitted). The Supreme Court indicated that:
Issue preclusion bars successive litigation of “an issue of fact or law” that “is actually litigated and determined by a valid and final judgment, and ... is essential to the judgment.” Restatement (Second) of Judgments § 27 (1980) (hereinafter Restatement). If a judgment does not depend on a given determination, relitigation of that determination is not precluded. Id, § 27, Comment h.
Bobby v. Bies, 666 U.S. 825, 834, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (2009). The Federal Circuit has explained that:
Issue preclusion bars a cause of action when four conditions are met: “(1) the issue is identical to one decided in the first action; (2) the issue was actually litigated in the first action; (3) resolution of the issue was essential to a final judgment in the first action; and (4) the plaintiff had a full and fair opportunity to litigate the issue in the first action.”
Laguna Hermosa Corp. v. United States, 671 F.3d 1284,1288 (Fed.Cir.2012) (quoting In re Freeman, 30 F.3d 1459, 1465 (Fed.Cir.1994)).
The Court of Appeals for the Federal Circuit has explained that principles of issue preclusion may apply to questions of jurisdiction. See Citizens Elecs. Co., Ltd. v. OSRAM GmBH, 225 Fed.Appx. 890, 893 (Fed.Cir.2007); see also Amgen Inc, v. United States Int’l Trade Comm’n, 902 F,2d 1532, 1536 n. 5 (Fed.Cir.1990) (“Dismissals for lack of jurisdiction may be given res judicata effect as to the jurisdictional issue.”) The United States Court of Federal Claims previously explained that, under the doctrine of issue preclusion, or collateral estoppel, this court may be precluded from exercising subject matter jurisdiction in an ongoing action when the same action, based on the same facts, has been previously dismissed on jurisdictional grounds and the jurisdictional flaw that necessitated dismissal on the first suit has not been cured. See Lowe United States, 79 Fed.Cl. 218, 228 (2007) (“It is beyond cavil that the issue of collateral es-toppel goes to subject matter jurisdiction, and may be pleaded as a 12(b)(1) motion.” (citing Schwasinger v. United States, 49 Fed.Appx. 888 (2002) (affirming lower court’s dismissal of a plaintiffs third complaint on the basis of collateral estoppel because plaintiffs two prior complaints were identical to the third complaint and had been dismissed for lack of subject matter jurisdiction))). Although “the mere dismissal of a claim for lack of subject matter jurisdiction does not operate as an adjudication of that claim on the merits,” a dismissal for lack of subject matter jurisdiction retains “some preclusive effect” unless, after the initial dismissal, a plaintiff has cured the jurisdictional deficiency identified in the first suit. See id. at 229 (emphasis in original); see also Vink v. Hendrikus Johannes Schiff Rolkan N.V., 839 F.2d 676, 677 (Fed.Cir.1988) (“A dismissal for lack of subject matter jurisdiction ... is not a disposition on the merits and thus permits a litigant to refile in an appropriate forum.”). “If [a] second-filed claim presents the same jurisdictional issue as raised in the first suit, the doctrine of res judicata bars the second claim,” unless “the second-filed claim contains new information which cures the jurisdictional defect fatal to the first-filed suit.” Goad v. United States, 46 Fed.Cl. 395, 398, appeal dismissed, 243 F.3d 553 (Fed.Cir.), cert. denied, 531 U.S. 1015, 121 S.Ct. 574, 148 L.Ed.2d 491 (2000). “If the alleged ‘cure’ is sufficient to repair the prior jurisdictional defect, collateral estoppel does not apply to the prior jurisdictional determination.” Lowe v. United States, 79 Fed.Cl. at 230.
In its motion to dismiss plaintiffs complaint in the above-captioned case, defendant argues, that-,“Mr. Lea is collaterally estopped from re-litigating a taking, unjust *214enrichment, and breach of an implied-in-fact contract claim, all of which were previously-dismissed by this Court for lack of subject matter jurisdiction.” Defendant asserts that plaintiffs claims asserting a taking, unjust enrichment, and breach of an implied-in-fact contract are identical to claims that plaintiff asserted-in a previous action filed in this court, which were dismissed either by this court or by the Court of Appeals for the Federal Circuit for lack of jurisdiction. Defendant further asserts that plaintiff has not cured the jurisdictional defects in his current complaint, Lea IV. Defendant is correct. Apart from a handful of minor, inconsequential variations, in the above-captioned case, plaintiffs claims for regulatory taking, contractual taking, unjust enrichment, and breach of an implied-in-fact contract are each the mirror image of the claims set forth in Judge Sweeney’s case, Lea III, which were previously dismissed for lack of subject matter jurisdiction. After denying plaintiffs motion to stay, a tactic used by plaintiff in the. above-captioned case as well, but before plaintiff had responded to defendant’s motion to dismiss, Judge Sweeney determined that this court lacked subject matter jurisdiction to consider plaintiffs “Fifth Amendment takings claim,” “claims under the Due Process Clauses of the Fifth and Fourteenth Amendments,” “claims of unjust enrichment,” and “plaintiffs implied-in-fact contract claim.” Lea III, 120 Fed.Cl. at 445-46. Plaintiff filed a substantive motion for reconsideration, to which Judge Sweenéy issued a decision finding that neither reconsideration nor relief from judgment was warranted. See Lea III, Case No. 14-1070C (Fed. Cl. Mar. 17, 2015).
Applying the facts currently before the court in Lea IV to the issue preclusion test as articulated by the United States Court of Appeals for the Federal Circuit, see Laguna Hermosa Corp. v. United States, 671 F.3d at 1288, it appears that this court already has ruled that this court does not have subject matter jurisdiction to hear plaintiffs claims for a taking, unjust enrichment, and breach of an implied-in-fact contract. Thus, plaintiff is precluded from re-litigating those issues unless he can demonstrate that he has cured the jurisdictional defects previously identified in his claims. With regard to the first and second factors of the issue preclusion test, the facts and issues alleged in the above-captioned case, Lea IV, regarding plaintiffs claims for a taking, unjust enrichment, and breach of an implied-in-fact contract are identical to the issues presented in Lea III, and the same parties, Mr. Lea and the United States, have had an opportunity to litigate the issues in Lea III. See Lea III, 120 Fed.Cl. at 445-46 (Judge Sweeney determined that this court lacked subject matter jurisdiction to consider plaintiffs “Fifth Amendment takings claim,” “claims under the Due Process Clauses of the Fifth and Fourteenth Amendments,” “claims of unjust enrichment,” and “plaintiffs implied-in-fact contract claim.”). As to the third factor of the issue preclusion test, resolution of the subject matter jurisdiction issue was essential to the resolution of Lea III because jurisdiction is a gateway determination that must be made before this court can consider the merits of plaintiffs claims. Indeed, this court cannot consider any action unless it has subject matter jurisdiction to do so. See Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235. In satisfaction of the fourth factor of the issue preclusion test, the record in Lea III demonstrates that, after consideration of plaintiffs complaint, Judge Sweeney issued a decision addressing the court’s jurisdiction over the merits of plaintiffs claims and also reviewed plaintiffs motion for reconsideration. “[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. at 434, 131 S.Ct. 1197; see also Gonzalez v. Thaler, 132 S.Ct. at 648 (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”) The issue of subject matter jurisdiction over many of plaintiffs claims listed above was resolved in Lea III, therefore, plaintiff, having been unsuccessful in the prior action, may not again command the resources of this court in order to re-*215litígate the same issues without demonstrating that the jurisdictional defects were cured, which plaintiff has not even marginally demonstrated in his complaint or filings before this court in Lea IV. See Lowe v. United States, 79 Fed.Cl. at 228.
In response to defendant’s allegation that plaintiff has not cured the jurisdictional defects in his complaint with regard to his claims for a taking, unjust enrichment, and breach of an implied-in-faet contract currently before the court, plaintiff demonstrates confusion about the procedural posture of his multiple actions in this court and about the boundaries of this court’s jurisdiction. Plaintiff responds that he “amended his complaint and that court stated that it was dismissed without prejudice. In other words, it could be brought back after the deficiency was cured.” Plaintiff appears to be caught in a web of his own creation. Although plaintiff voluntarily dismissed the remanded action over which Judge Allegra presided (Lea I), that dismissal occurred on March 23, 2015, approximately two weeks after Judge Sweeney issued her decision in Lea III dismissing plaintiffs claims alleging a taking, unjust enrichment, and breach of an implied-in-faet contract for lack of subject matter jurisdiction. Thus, despite plaintiffs apparent efforts to avoid the results of Judge Sweeney’s decision by voluntarily dismissing his case before Judge Allegra, Lea I, the elements of Judge Sweeney’s decision on jurisdiction in Lea III are binding on plaintiff. If plaintiff was dissatisfied with Judge Sweeney’s decision in Lea III, plaintiff was entitled to appeal that decision to the United States Court of Appeals for the Federal Circuit, just as he did in Lea I regarding Judge Allegra’s decision. Plaintiff may not, however, revisit the Lea III decision by filing yet another action in this court based on the same facts and including the same claims. Moreover, plaintiff cannot rely on his voluntary dismissal in Lea I to avoid the court’s decision in Lea III. Because plaintiff has failed to cure the deficiencies with regard to these claims, or even allege that the deficiencies have been cured, plaintiff is precluded from re-alleging his claims of a taking, unjust enrichment, and breach of an implied-in-fact contract in Lea TV, the case currently before this court.
The prior multiple adjudications of plaintiffs claims through this court and the United States Court of Appeals for the Federal Circuit narrow the issues remaining for possible review. By voluntarily dismissing the Lea I action before Judge Allegra could decide the breach of contract issue remanded by the Federal Circuit, plaintiff may have preserved his ability to initiate a later action alleging breach of contract. As explained above, in the Lea III decision, Judge Sweeney acknowledged that plaintiffs breach of contract claim was pending before Judge Allegra. Thus, she dismissed plaintiffs breach of contract claims in Lea III, without prejudice, “to promote judicial economy and conserve the parties’ resources,” perhaps assuming that the breach of contract claim would be resolved in the then-open Lea I remanded action. See Lea III, 120 Fed.Cl. at 447. Given the previous proceedings and decisions of this court in Lea I and Lea III, the only claims in plaintiffs complaint that could survive for this court’s consideration now in the above-captioned case, Lea TV, aré plaintiffs claims alleging that defendant (1) breached the loan guarantee contract to which he allegedly was a third party beneficiary; (2) purposefully devalued the farm property by denying his subordination claim, breaching the duty of good faith and fair dealing; (3) breached a fiduciary duty to plaintiff by not suspending Farmers National Bank’s foreclosure on the farm property; and (4) breached the second mortgage contract.
In his current complaint, plaintiff alleges multiple breach of contract claims. Plaintiff tries to rely on the loan guarantee agreement between the USDA and Farmers National Bank as the first express contract, to which he alleges he was a third party beneficiary, and the “second mortgage direct loan contract” as the second express contract between himself and defendant Pursuant to-the Tucker Act, 28 U.S.C. § 1491(a)(1), privity of contract between a plaintiff and the United States government is required to bring a cause of action in the United States Court of Federal Claims for express and implied contracts. See Cienega Gardens v. United States, 194 F.3d 1231, 1239 (Fed.Cir. 1998) (“Under the Tucker Act, the Court of *216Federal Claims has jurisdiction over claims based on ‘any express or implied contract with the United States.’ 28 U.S.C. § 1491(a)(1) (1994). We have stated that ‘[t]o maintain a cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between the plaintiff and the government.’ ” (quoting Ransom v. United States, 900 F.2d 242, 244 (Fed.Cir. 1990))), cert. denied, 528 U.S. 820, 120 S.Ct. 62, 145 L.Ed.2d 54 (1999); see also Estes Express Lines v. United States, 739 F.3d 689, 693 (Fed.Cir.2014); Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1265 (Fed.Cir. 2005) (The “government consents to be sued only by those with whom it has privity of contract.”); S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1328 (Fed. Cir.) (“A plaintiff must be in privity with the United States to have standing to sue the sovereign on a contract claim,” but noting exceptions to this general rule (citing Anderson v. United States, 344 F.3d 1343, 1352 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2003))); United States v. Algoma Lumber Co., 305 U.S. 415, 421, 59 S.Ct. 267, 83 L.Ed. 260 (1939). reh’g and reh’g en banc denied (Fed. Cir.2005), cert. denied, 548 U.S. 904, 126 S.Ct. 2967, 165 L.Ed.2d 950 (2006); Erickson Air Crane Co. of Wash. v. United States, 731 F.2d 810, 813 (Fed.Cir. 1984) (“The government consents to be sued only by those with whom it has privity of contract.”).
The United States Court of Appeals for the Federal Circuit “has recognized limited exceptions to [the privity rule] when a party standing outside of privity ‘stands in the shoes of a party within privity.’ ” See Sullivan v. United States, 625 F.3d 1378, 1380 (Fed.Cir.2010) (quoting First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed.Cir.1999), reh’g en banc denied (Fed.Cir.2000)). A party lacking privity with the United States may be able to sue the federal government if it can demonstrate that it is an intended third party beneficiary of a contract with the United States. See Sioux Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1056 (“A plaintiff lacking privity of contract can none- . theless sue for damages under that contract if it qualifies as an intended third-party beneficiary.”); see also Alpine Cnty., Cal. v. United States, 417 F.3d 1366, 1368 (Fed.Cir.2005) (“In order to sue for damages on a contract claim, a plaintiff must have either direct privity or third-party beneficiary status.”); Anderson v. United States, 344 F.3d at 1352 (“Without either direct privity or third-party beneficiary status, the Paul sons lack standing to sue the government and cannot therefore recover damages from the United States.”); Nelson Constr. Co. v. United States, 79 Fed.Cl. 81, 95 (2007); Entergy Nuclear Indian Point 2, LLC v. United States, 64 Fed.Cl. 515, 523 (2005) (“To have standing to bring a breach of contract claim, plaintiffs must also be in privity of contract with the government or a third party beneficiary of a contract with the government.”); O. Ahlborg & Sons, Inc. v. United States, 74 Fed.Cl. 178, 188 (2006) (“The third-party beneficiary exception exists to cover situations in which the subcontractor ‘stands in the shoes of a party with privity.’ ” (quoting First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d at 1289)). But see Chancellor Manor v. United States, 331 F.3d 891, 901 (Fed.Cir.2003) (holding that “Appellants could establish privity of contract if they are intended third-party beneficiaries of a contract with the United States....” (citing First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d at 1289)); Stockton E. Water Dist v. United States, 70 Fed.Cl. 615, 526 (2006) (“One method of ‘establishing] privity of contract [is] if [plaintiffs] are intended third-party beneficiaries of a contract with the United States_’” (quoting Chancellor Manor v. United States, 331 F.3d at 901)) (modifications in original), judgment entered, 75 Fed.Cl. 321, modifying in part, 76 Fed.Cl. 470, reconsideration denied 76 Fed.Cl. 497 (2007), rev’d on other grounds, 583 F.3d 1344 (Fed.Cir.2009), partial reh’g granted 638 F.3d 781 (Fed.Cir. 2011); Klamath Irrigation Dist. v. United States, 67 Fed.Cl. 504, 532 (“Such privity would exist if the irrigators are properly viewed as third-party beneficiaries to the district contracts.” (citing Chancellor Manor v. United States, 331 F.3d at 901, and First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d at 1289)), modifying *217order, 68 Fed.Cl. 119, denying certification of interlocutory appeal, 69 Fed.Cl. 160 (2005).
In the Federal Circuit’s decision in Lea II. which considered plaintiffs appeal of Judge Allegra’s decision in Lea I, the Federal Circuit explained that, following its decision in Montana v. United States, 124 F.3d 1269, 1273 (Fed.Cir.1997), “ [[i]n order to prove third-party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.’ ” Lea II, 592 Fed.Appx. at 934 (quoting Montana v. United States, 124 F.3d at 1273) (modification in original); see also Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.) (“In order to prove third party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.”), reh’g and reh’g en banc denied (Fed.Cir.), opinion amended on rehearing, 273 F.3d 1072 (Fed.Cir.2001). “Third party beneficiary status is an ‘exceptional privilege.’ ” Glass v. United States, 258 F.3d at 1354 (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912)).
Construing pro se plaintiffs pleadings liberally, it appears that plaintiff alleges several varying breaches of an express contract between the USDA and Farmers National Bank, to which plaintiff asserts he was a third party beneficiary, as well as the second mortgage agreement, allegedly between plaintiff and the USDA. Plaintiff alleges that the “United States Congress conferred third party beneficiary status to the guaranteed loan.” Although the parties do not dispute the existence of either contract, to establish third party beneficiary status, plaintiff, however, must demonstrate that the parties to a specific agreement intended for the agreement to directly benefit him. See Montana v. United States, 124 F.3d at 1273.
In the case currently before the court, Lea TV, the borrower identified on the guaranteed loan agreement was Corey Lea, Inc., the corporate entity, and not Mr. Lea personally. Similarly, the mortgagor identified on the second mortgage agreement was Corey Lea, Incorporated, and not Corey Lea. Corey Lea, the individual, was not indicated as the intended third party beneficiary to the loan guarantee agreement between the USDA and Farmers National Bank. Even if there could be any viable claims against defendant based on the facts in plaintiffs complaint, which this court does not reach or conclude, Mr. Lea, as a pro se plaintiff representing himself in his personal capacity, is the wrong party to assert those claims. Therefore, notwithstanding plaintiffs multiple and repetitive submissions to this court, it appears that Mr. Lea has not alleged or offered sufficient information to establish himself as the proper party plaintiff who may assert contractual claims against defendant United States. Plaintiff has not established that he was a third party beneficiary to either contract. Instead, Corey Lea, Inc., which is the named entity on both the loan guarantee agreement between the USDA and Farmers National Bank and the second mortgage agreement, is the only entity that may be eligible to allege contractual claims against defendant based on third party beneficiary status. Therefore, plaintiffs allegations do not establish subject matter jurisdiction for the breach of contract claims filed in the name of Corey Lea, the individual, because he cannot demonstrate privity between himself and defendant based on his status as a third party beneficiary.
Furthermore, Mr. Lea cannot pursue these breach of contract allegations on behalf of Corey Lea, Inc. without representation. According to RCFC 83.1(a)(3) an “individual who is not an attorney may represent oneself or a member of one’s immediate family, but may not represent a corporation, an entity, or any other person in any other proceeding before this court.” RCFC 83.1(a)(3) (2015); see also Talasila, Inc. v. United States, 240 F.3d 1064, 1066 (Fed.Cir.) (“[Plaintiff] must be represented by counsel in order to pursue its claim against the United States in the Court of Federal Claims.”), reh’g and reh’g en banc denied (Fed.Cir. 2001); Finast Metal Prods., Inc. v. United States, 12 Cl.Ct. 759, 761 (1987) (“[A] corpo*218rate ‘person’ can no more be represented in court by a non-lawyer — even its own president and sole shareholder — than can any individual.”); Affourtit v. United States, 79 Fed.Cl. 776, 779 (2008) (“A corporation appearing before the' United States Court of Federal Claims ... must be represented by an attorney ”) This rule applies despite possible financial hardship imposed on the plaintiff. See Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366, 1366 (Fed.Cir.1983) (holding that the plaintiffs “substantial financial hardship” did not waive the rule requiring corporations to be represented by counsel): Balbach v. United States, 119 Fed.Cl. 681, 683 (2015) (“A pro se plaintiff cannot represent a corporation ... The Court cannot waive this rule, even for cases of severe financial hardship.” (citing Affourtit v. United States, 79 Fed.Cl. at 780)). In accordance with RCFC 83.1(a)(3), plaintiff cannot represent the interests of Corey Lea, Inc. before this court because he is not an attorney admitted to the bar of this court. In his complaint and his subsequent submissions to the court, plaintiff confuses and conflates himself and his company, Corey Lea, Inc. Plaintiff, Corey Lea the individual, and Corey Lea, Inc., the corporate entity, however, are separate under the law. Plaintiff cannot cloak himself as Corey Lea, Inc. in order to assert a claim for damages against the United States. To the extent that Mr. Lea’s complaint is a veiled attempt to allow Corey Lea, the individual, to litigate on behalf of Corey Lea, Inc., under RCFC 83.1(a)(3), absent a notice of appearance filed by an attorney admitted to this court, plaintiffs complaint must be dismissed. Since no such notice of appearance has been filed, this court cannot proceed to adjudicate plaintiffs pro se contractual claims.12
Accordingly, for all of the reasons stated above, plaintiffs contractually-based claims alleging that defendant (1) breached the loan guarantee contract to which he was a third party beneficiary; (2) purposefully devalued the farm property by denying plaintiffs subordination claim, breaching the implied duty of good faith and fair dealing; (3) breached a fiduciary duty to plaintiff by not suspending Farmers National Bank’s foreclosure on the farm property; and (4) breached the second mortgage contract, are dismissed. This is pro se plaintiffs third' attempt, in a two-year period, to pursue the same claims in the United States Court of Federal Claims, and it should be his last filed in this, or any other, trial court. During the previous seven years, pro se plaintiff Corey Lea has relentlessly and frivolously taxed the limited resources of the federal judiciary by filing numerous, du-plicative complaints in this and other federal courts based on the same fundamental set of facts. Although plaintiff may consider this decision another unhappy ending, this decision should send a clear message to Mr. Lea.
CONCLUSION
For all the reasons discussed above, defendant’s motion to dismiss is GRANTED and plaintiffs complaint is DISMISSED. Plaintiffs motion for partial summary judgment and his motion for leave to conduct limited discovery and to stay the proceedings are DISMISSED as MOOT. Costs to defendant. The Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.
. The facts stated herein are derived from plaintiffs complaint in the above-captioned case as well as two previous decisions issued by two judges of this court in separate cases, and the decision issued by the United States Court of Appeals for the Federal Circuit, on appeal from plaintiffs first case filed in this court. Each of the decisions addressed several of the same claims that plaintiff again alleges in the above-captioned case. See Lea v. United States, No. 14-44C, 2014 WL 2101367 (Fed.Cl. May 19, 2014) (Lea I), aff'd in part, vacated in part, 592 Fed. Appx. 930 (Fed.Cir.2014) (Lea II); Lea v. United States, 120 Fed.Cl. 440 (2015) (Lea III) recons, denied (Fed.Cl. March 17, 2015).
. The USDA FSA offers a loan guarantee program designed to assist farmers to obtain funds for purchasing and operating farms through which private banks offer loans to individuals and the USDA FSA guarantees a portion of the loan. See 7 C.F.R. § 762 (2016).
. It is not clear from the parties' submissions to the court whether the' loan from Independence . Bank was obtained by plaintiff, Corey Lea, the individual, or Corey Lea, Inc., the corporate entity. The Independence Bank loan, however, is not relevant to this order.
. In Lea I, plaintiff asserted claims based on fraud, tortious interference, and breach of contract. In Lea III, plaintiff asserted the same breach of contract claim, as well as several other, new allegations including violations of the 5th and 14th Amendments to the Constitution of the United States, regulatory and contractual takings, and unjust enrichment. In Lea IV, the above-captioned case, plaintiff has asserted a combination of the claims in Lea I and Lea III.
. Plaintiff subsequently filed an amended complaint, and a second amended complaint. See Lea III, 120 Fed.Cl. at 443.
. The above-captioned case was reassigned several times before it was reassigned to'the undersigned on June 23, 2015.
. Although plaintiff does not specifically explain the legal basis for his racial discrimination claim, it is well-established that this court does not have jurisdiction over civil rights claims brought under Title VII of the Civil Rights Act of 1964 because Congress vested the district courts with exclusive jurisdiction over such claims. See 28 U.S.C. § 1343(a)(4) (2012).
.To the extent plaintiff attempts to re-allege tor-tious interference, such a claim also is precluded from moving forward in this court because, in *210Lea /, Judge Allegra previously dismissed plaintiff’s claim for tortious interference based on the same facts as those alleged in the complaint currently before the court in Lea IV. See Lea I, 2014 WL 2101367, at *2. Moreover, to the extent plaintiff is attempting to allege any tort claims against defendant, such claims must be dismissed for lack of subject matter jurisdiction because this court does not possess jurisdiction over claims that sound in tort. See 28 U.S.C. § 1491(a) ("The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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.”); see also Mew Am. Shipbuilders v. United States, 871 F.2d 1077, 1079 (Fed.Cir.1989) ("If the government misconduct alleged was tortious, jurisdiction is not granted the Claims Court under the Tucker Act”); Tree Farm Dev. Corp. v. United States, 218 Ct.Cl. 308, 316, 585 F.2d 493, 498 (1978) (noting that the Court of Claims "specifically lacks jurisdiction in cases sounding in tort” under the Tucker Act).
. See footnote 9.
. Although plaintiff appears to allege that this court has jurisdiction to hear his claims under the Contract Disputes Act, 41 U.S.C. § 7104 (2012), plaintiff has failed to allege facts sufficient for this court to exercise jurisdiction under the Contract Disputes Act. Specifically, plaintiff did not allege, nor is there any indication, that he submitted a certified claim to a contracting officer for a final decision.
. Plaintiff understands the difference between himself, Corey Lea, and Corey Lea, Inc. as he has previously filed actions as Corey Lea, Inc. See, e.g., Lea et al. v. United States, No. 10-CV-00029-JHM (Mr. Lea filed as two separate plaintiffs: Corey Lea, Inc. and Corey Lea). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218551/ | Takings; Judicial Takings Claim; Motion to Dismiss; Subject-Matter Jurisdiction.
OPINION
HORN, J.
The above captioned cases involve the government’s alleged taking in violation of the *370Fifth Amendment to the United States Constitution of ninety mineral servitudes underlying roughly 68,000 acres of the Kisatchie National Forest in Louisiana. Plaintiff alleges that the United States Court of Appeals for the Fifth Circuit took its property by holding that the mineral servitudes were subject to the Louisiana law of prescription. See Petro-Hunt, L.L.C. v. United States, 365 F.3d 386 (6th Cir.), cert. denied, 543 U.S. 1034, 125 S.Ct. 808, 160 L.Ed.2d 597 (2004). These eases are currently before this court on defendant’s motion to dismiss plaintiffs judicial takings claims and the parties’ cross motions for summary judgment on the judicial takings claims.2
FINDINGS OF FACT
Between 1932 and 1934, two companies, Bodcaw Lumber Company of Louisiana (Bodcaw) and Grant Timber & Manufacturing Company of Louisiana, Inc. (Grant), conveyed 96 mineral servitudes underlying approximately 180,000 acres of land to Good Pine Oil Company, Inc., a joint venture created by Bodcaw, Grant, and three other lumber companies.
In the early 1930s, the United States approached Bodcaw and Grant with an offer to purchase the surface land of the 180,000 acres. The United States intended to acquire this land pursuant to the Weeks Law, which authorized the government to purchase lands throughout the United States to establish national forests. See Weeks Law of 1911, ch. 186, 36 Stat. 961 (1911) (codified as amended at 16 U.S.C. §§ 515-519, 521, 552, 563 (2012)). Bodcaw and Grant expressed concern over the application of the Louisiana law of prescription, which states that mineral servitudes to the owner of the surface estate extinguish after ten years of nonuse. See La. Civil Code art. 789, 3546 (1870) (currently codified as amended at La.Rev.Stat. § 31:27 (2015)). On May 29, 1935, an Assistant Solicitor of the United States Department of Agriculture issued an opinion stating that the prescriptive provisions of the Louisiana Civil Code would not apply to lands sold to the United States for national forest purposes. The Forest Service delivered the 1935 opinion to Bodcaw and Grant to ease their fears that the land would prescribe to the United States. Between 1934 and 1937, the two companies conveyed the surface land of the 180,000 non-contiguous acres to the United States through several conveyances for the creation of the Kisatchie National Forest.3
In 1940, the Louisiana legislature enacted Act 315 of 1940 (Act 315), declaring that when the United States acquired land subject to the prior sale of the oil, gas or other mineral rights, the mineral rights were im-prescriptible.4 In 1948, the United States filed a quiet title action in the United States District Court for the Western District of Louisiana to determine the owner of a mineral servitude underlying approximately 800 acres of the 180,000 acres in dispute in these cases. The court held, relying on Act 315, that the Louisiana law of prescription did not apply and the servitude affecting the approx*371imately 800 acres remained in the hands of Petro-Hunt’s predecessor in interest, the Nebo Oil Company.5 See United States v. Nebo Oil Co., 90 F.Supp. at 84. Although Act 315 was passed four years after the sale of the land above the servitude affecting the approximately 800 acres, the Western District of Louisiana found that the law still applied because the conveyance occurred within ten years of Act 315. See id. at 81.
The holding of Nebo Oil came into question when the United States Supreme Court decided United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973). The Little Lake Misc.e case involved two parcels of land in Louisiana acquired by the United States in 1937 and 1939 in accordance with the Migratory Bird Conservation Act, with the express provision that the mineral rights associated with the land were reserved to Little Lake Misc.e for a period of 10 years, or longer if Little Lake Misc.e continued the production of minerals on the site. See id. at 582-83, 93 S.Ct. 2389. The Supreme Court determined that because the land acquisition was “one arising from and bearing heavily upon a federal regulatory program” and involved the United States as a party, the case should be interpreted according to federal law. See id. at 593-94, 93 S.Ct. 2389. The Supreme Court held that the retroactive application of Louisiana’s Act 315 was “plainly hostile to the interests of the' United States” and “[t]o permit state abrogation of the explicit terms of a federal land acquisition would deal a serious blow to the congressional scheme contemplated by the Migratory Bird Conservation Act and indeed all other federal land acquisition programs.” Id. at 596-97, 93 S.Ct. 2389. Accordingly, the Supreme Court held that the land in question had prescribed to the United States. See id. at 604, 93 S.Ct. 2389.
In 1991, the United States began granting mineral leases on some of the conveyed land at issue in these eases. In 1998, through various conveyances, Petro-Hunt became the record holder of a 64.3% undivided interest in the mineral servitudes once owned by Good Pine Oil Company, Inc. On February 18, 2000, Petro-Hunt, along with the co-owners of Petro-Hunt’s mineral estate, filed a quiet title action in the United States District Court for the Western District of Louisiana, seeking a declaration that they were the owners in perpetuity of the mineral servi-tudes. See Petro-Hunt, L.L.C. v. United States, No. 00-303 (W.D. La. filed Feb. 18, 2000). Their complaint requested a declaratory judgment quieting their title to the property, but alternatively asserted “that the actions of the United States in confiscating their mineral interests amounts to an unconstitutional taking in direct violation of the Fifth Amendment of the United States Constitution, for which Plaintiffs should be compensated.” In its June 5, 2000, response to this complaint, the United States asserted that the United States District Court for the Western District of Louisiana lacked jurisdiction to declare an unconstitutional takings and award compensation.
On August 24, 2000, Petro-Hunt filed a complaint in this court, Case No. 00-512L, alleging that the United States had breached its contract and the Fifth Amendment Takings Clause, by exercising ownership over the mineral servitudes. On November 2, 2000, the case in this court was stayed pending the resolution of the quiet title action in the United States District Court for the Western District of Louisiana. On December 18, 2001, the Western District of Louisiana held that the law of prescriptions did not apply and that Petro-Hunt retained title to the mineral servitudes. Petro-Hunt, L.L.C. v. United States, 179 F.Supp.2d 669 (W.D.La.2001). The United States Court of Appeals for the Fifth Circuit reversed, holding that the law of prescriptions did apply to Petro-Hunt’s mineral servitudes. See Petro-Hunt, L.L.C. v. United States, 365 F.3d at 399. In its ruling, the Fifth Circuit expressly relied upon the Little Lake Misere decision and a 2001 Fifth Circuit decision, Central Pines Land Co. v. United States, 274 F.3d 881 (5th Cir. 2001), cert. denied, 537 U.S. 822, 123 S.Ct. 101, 154 L.Ed.2d 30 (2002). See Petro-Hunt, L.L.C. v. United States, 365 F.3d at *372392-93 (discussing the two cases). Central Pirns held that “Act 315 cannot be borrowed as the rule of decision for application to pre-1940 transactions, because it is hostile to the interests of the United States.” Cent. Pines Land Co. v. United States, 274 F.3d at 886.6 Relying on Central Pines, the Fifth Circuit held that it was “prohibited from borrowing Act 315 as the federal rule of decision” and remanded the case United States District Court for the Western District of Louisiana to determine which of Petro-Hunt’s mineral servitudes had prescribed to the United States through nonuse. Petro Hunt, L.L.C. v. United States, 365 F.3d at 399.
In accordance with the Fifth Circuit decision, the quiet title action was remanded to the United States District Court for the Western District of Louisiana. Petro-Hunt filed a motion for trial on the issue of whether Act 315 applied to its mineral servitudes. See Petro-Hunt, L.L.C. v. United States, No. 00-0303 (W.D.La. Mar. 14, 2005). The court denied the motion, finding that the only issue to be determined was “which of the 95 servi-tudes not at issue in Nebo Oil ha[d] in fact prescribed for nonuse.” Order, Petro-Hunt, L.L.C. v. United States, No. 00-0303 (W.D.La. Nov. 21, 2005) (internal quotation marks omitted). On December 7, 2005, the United States District Court for the Western District of Louisiana held that Petro-Hunt remained the owner of six servitudes,7 underlying roughly 122,000 acres, with the remaining 90 having prescribed to the United States through nonuse. Petro-Hunt, L.L.C. v. United States, No. 00-0303 (W.D.La. Dec. 7, 2005).
Petro-Hunt appealed, arguing that the United States District Court for the Western District of Louisiana erred in denying its motion for trial, or in the alternative, that the Fifth Circuit’s 2004 mandate was clearly erroneous and should be withdrawn. See Petro-Hunt, L.L.C. v. United States, No. 06-30095, 2007 WL 715270, at *1 (5th Cir. Mar. 6, 2007), cert. denied, 552 U.S. 1242, 128 S.Ct. 1471, 170 L.Ed.2d 296 (2008). On March 6, 2007, the Fifth Circuit affirmed the denial of the motion for trial and denied plaintiffs request that the previous mandate be withdrawn. Id. at *3. On March 3, 2008, the Supreme Court denied plaintiffs petition for a writ of certiorari, rendering the Fifth Circuit’s decision final. See Petro-Hunt, L.L.C. v. United States, 552 U.S. 1242, 128 S.Ct. 1471, 170 L.Ed.2d 296 (2008).
On May 27, 2008, the stay in Case No. 00-512L in this court was lifted. On September 2, 2008, defendant filed a motion to dismiss, or, alternatively, for summary judgment. On November 6, 2009, Judge Allegra granted, in part, and denied, in part, defendant’s motion to dismiss. Petro-Hunt, L.L.C. v. United States, 90 Fed.Cl. 51. Judge Allegra dismissed plaintiffs contract claims, permanent takings claims, and certain of its temporary taking claims that were untimely, see id. at 64, 67, 68, but found that other temporary takings claims were timely. See id. at 71.
On September 16, 2010, plaintiff filed its second amended complaint, adding a claim that the Fifth Circuit’s decision in. the quiet title action constituted a judicial taking of *373plaintiffs mineral servitudes. On May 31, 2011, defendant filed a motion to dismiss asserting that plaintiffs prior filing of the district court action deprived the court of jurisdiction under 28 U.S.C. § 1500 (2006). On May 2, 2012, Judge Allegra dismissed plaintiffs temporary takings claims as barred by 28 U.S.O. § 1500, but denied the motion to dismiss as to the new judicial takings claim. See Petro-Hunt, L.L.C. v. United States, 105 Fed.Cl. 37.8 The judicial takings claim is all that remains in the above captioned cases.
After discovery was completed in 2015, defendant filed a motion to dismiss pursuant to Rules 12(b)(1), 12(c), and 12(h)(3) (2015) of the Rules of the United States Court of Federal Claims (RCFC), and a motion for summary judgment pursuant to RCFC 66 (2015). Defendant raises four main arguments in support of its motions. First, defendant argues that the United States Court of Federal Claims lacks jurisdiction over the judicial takings claim because it requires the court to scrutinize the decision of another federal court. Second, defendant argues that the appropriate remedy for a judicial takings claim is the invalidation of the offending court decision, and the Court of Federal Claims lacks jurisdiction to grant this remedy. Third, defendant asserts that plaintiffs claim is barred by res judicata, because plaintiff already litigated its claims in the Fifth Circuit. Finally, defendant asserts that it should succeed on the merits because the Fifth Circuit did not take an established property right from the plaintiff.
In response, plaintiff filed a cross-motion for summary judgment in addition to responding to the motion to dismiss, alleging that it did have an established property right that was taken by the Fifth Circuit’s 2007 decision. Regarding its judicial takings claims, plaintiff argues that “Petro-Hunt’s valid judicial takings claim is subject to this Court’s jurisdiction,” and citing to Smith v. United States, 709 F.3d 1114 (Fed.Cir.), cert. denied, — U.S. -, 134 S.Ct. 259, 187 L.Ed.2d 262 (2013) argues that “[t]he Federal Circuit has recognized that judicial action can give rise to claims for the taking of private property.”
DISCUSSION
Prior to addressing the cross-motions for summary judgment, the court first considers defendant’s motion to dismiss for lack of jurisdiction. It is well established that “ ‘subject-matter jurisdiction, because it involves'a court’s power to hear a case, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 ,(2012) (“When a requirement *374goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed.Cir.2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a - case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed.Cir.1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[Cjourts must always look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med. Ctr., — U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235 (“The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed.Cir.2012) (“An objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07, 126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed.Cir.2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed.Cir.2011). In fact, “[sjubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where ... neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006); see also Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed.Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 F.3d 1330 (Fed. Cir.2010), cert. denied, 562 U.S. 1169, 131 S.Ct. 909, 178 L.Ed.2d 804 (2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC’ 8(a)(1), (2) (2015); Fed.R.Civ.P. 8(a)(1), (2) (2016); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir,) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. ,1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed.Cir.1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Conelusory allegations of law and unwarranted inferences of fact do not *375suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n. 9 (Fed.Cir.2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). “A plaintiffs factual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’ ” Three S Consulting v. United States, 104 Fed.Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955), aff'd, 562 Fed.Appx. 964 (Fed.Cir.), reh’g denied (Fed.Cir.2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
When deciding a case based on a lack of subject matter jurisdiction or for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are trae and must draw all reasonable inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)))); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed.Cir.2006); Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed.Cir.2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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) (2012). .As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007), cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States....” United States v. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Smith v. United States, 709 F.3d at 1116; RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009); Rick’s Mushroom Serv., Inc. v. United *376States, 521 F.3d at 1343 (“[PJlaintiff must ... identify a substantive source of law that creates the right to recovery of money damages against the United States.”); Golden v. United States, 118 Fed.Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver.... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States, 178 Ct.Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [ (1967) ] (describing illegal exaction claims as claims “in which ‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 580 (1954))).... Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Id.; see also [United States v.] Testan, 424 U.S. [392,] 401-02 [96 S.Ct. 948, 47 L.Ed.2d 114 (1976)] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulation-does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself ... can fairly be inteipreted as mandating compensation by the Federal Government for the damage sustained'.’ ” (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money-mandating” statute.
Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed.Cir.2004); see also Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’ ” United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126; United States v. Mitchell, 463 U.S. at 217, 103 S.Ct. 2961; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.Cir.2008), cert. denied, 555 U.S. 1153, 129 S.Ct. 1038, 173 L.Ed.2d 468 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operatefs] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).”). “ ‘If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed.Cir.2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Peoples v. United States, 87 Fed.Cl. 553, 565-66 (2009).
The Takings Clause of the Fifth Amendment to the United States Constitution provides in pertinent part: “nor shall private property be taken for public use without just compensation.” U.S. Const, amend. V. The purpose of this Fifth Amendment provision is to prevent the government from “‘forcing some people alone to bear public burdens which, in all fairness and justice, should be *377borne by the public as a whole.’ ” Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1564 (1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska 2009); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24, 98 S.Ct. 2646, 67 L.Ed.2d 631, reh’g denied, 439 U.S. 883, 99 S.Ct. 226, 68 L.Ed.2d 198 (1978); Lingle v. Chevron U.S.A Inc., 644 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005); E. Enters, v. Apfel, 524 U.S. 498, 522, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998); Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1266 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2009), cert. denied, 559 U.S. 935, 130 S.Ct. 1501, 176 L.Ed.2d 109 (2010); Janowsky v. United States, 133 F.3d 888, 892 (Fed.Cir.1998); Res. Invs., Inc. v. United States, 85 Fed.Cl. 447, 469-70 (2009); Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166, 179, 20 L.Ed. 557 (1871) (citing to principles which 'establish that “private property may be taken for public uses when public necessity or utility requires” and that there is a “clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified”).
Therefore, “a claim for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” E. Enters, v. Apfel, 524 U.S. at 520, 118 S.Ct. 2131 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016—19, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)); see also Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1336 (Fed.Cir.2007); Morris v. United States, 392 F.3d 1372, 1375 (Fed.Cir.2004) (“Absent an express statutory grant of jurisdiction to the contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over takings claims for amounts greater than $10,000.”). The United States Supreme Court has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the [United States Court of Federal Claims] to hear and determine.” Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 12, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (quoting United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946)); see also Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1368 (Fed.Cir.2005); Narramore v. United States, 960 F.2d 1048, 1052 (Fed.Cir.1992); Perry v. United States, 28 Fed.Cl. 82, 84 (1993).
To succeed under the Fifth Amendment Takings Clause, a plaintiff must .show that the government took a private property interest for public use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.Cir.2004), cert. denied, 546 U.S. 811, 126 S.Ct. 330, 163 L.Ed.2d 43 (2005); Arbelaez v. United States, 94 Fed.Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed.Cl. 157, 162 (2006). “The issue of whether a taking has occurred is a question of law based on factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78 (Fed.Cir.), cert. denied, 555 U.S. 1045, 129 S.Ct. 626, 172 L.Ed.2d 608 (2008). The government must be operating in its sovereign rather than in its' proprietary capacity when it initiates a taking. See St. Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed.Cir.2008).
The United States Court of Appeals for the Federal Circuit has established a two-part test to determine whether government actions amount to a taking of private property under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.Cir.2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed.Cir.) (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.), cert. denied, 516 U.S. 808, 116 S.Ct. 53, 133 L.Ed.2d 18 (1995)), reh’g denied (Fed.Cir.2004), cert. denied, 545 U.S. 1139, 125 S.Ct. 2963, 162 L.Ed.2d 887 (2005). A court first determines whether a plaintiff possesses a cognizable property interest in the subject of the alleged takings. Then, the court must determine whether the government action is a “ ‘compensable taking of that property in*378terest.’” Huntleigh USA Corp. v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).
To establish a taking, a plaintiff must have a legally cognizable property interest, such as the right of possession, use, or disposal of the property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)); CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed.Cir.2010), cert. denied, 563 U.S. 989, 131 S.Ct. 2459, 179 L.Ed.2d 1211 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed.Cir.), reh’g denied and en banc suggestion denied (Fed.Cir.2000), cert. denied 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001). “ ‘It is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation.’ ” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001), cert. denied 535 U.S. 1077, 122 S.Ct. 1960, 152 L.Ed.2d 1021 (2002) and citing Cavin v. United States, 956 F.2d 1131, 1134 (Fed.Cir.1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d 1344, 1352 (Fed.Cir.2003) and M & J Coal Co. v. United States, 47 F.3d at 1154). The court does not address the second step “without first identifying a cognizable property interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed.Cir.) (citing Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States, 291 F.3d 1334, 1340 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2002), cert. denied 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003)), reh’g denied and reh’g en banc denied (Fed.Cir.2005). Only if there is to be a next step, “ ‘after having identified a valid property interest, the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest.’ ” Huntleigh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372).
Judicial Takings
The contours — and even the existence — of a judicial takings doctrine has been debated in federal courts and in legal scholarship. See generally Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010); Frederic Bloom & Christopher Serkin, “Suing Courts,” 79 U. Chi. L.Rev. 553, 555 (2012); Stacey L. Dogan & Ernest A. Young, “Judicial Takings and Collateral Attack on State Court Property Decisions,” 6 Duke J. Const. L. & Pub. Pol’y 107, 112-13 (2011); John D. Echeverría, “Stop the Beach Renourishment: Why the Judiciary is Different,” 35 Vt. L.Rev. 475 (2010); Daniel L. Siegel, “Why We Will Probably Never See a Judicial Takings Doctrine,” 35 Vt. L.Rev. 459 (2010); Barton H. Thompson, Jr., “Judicial Takings,” 76 Va. L.Rev. 1449 (1990).
The door to judicial takings claims was cracked ajar by the Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. See generally Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184. In Stop the Beach, a group of beachfront landowners from the city of Des-tín and Walton County, Florida, alleged that the Supreme Court of Florida took their property when it held that the Beach and Shore Preservation Act of 1961 did not unconstitutionally deprive landowners of their littoral rights without just compensation. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. at 709-12, 130 S.Ct. 2592. The eight justices who took part in the case9 held that the Florida Supreme Court’s decision did not constitute a violation of the Fifth Amendment Takings Clause “[b]ecause the Florida Supreme Court’s decision did not contravene the established property rights of petitioner’s Members.” Id at 733, 130 S.Ct. 2592 (ma*379jority opinion). Specifically, the majority opinion found that “[tjhere is no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral-property owners had rights to future accretions and contact with the water superior to the State’s right to fill in its submerged land.” Id. at 730,130 S.Ct. 2592.
The justices, however, did not agree on the definition of a judicial taking, or even whether judicial takings claims are cognizable in federal court. The plurality opinion by Justice Scalia, which was joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, asserted that courts can violate the Fifth Amendment through their actions, since “[t]he [Takings] Clause is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor.” Id. at 713-14, 130 S.Ct. 2592 (plurality opinion). The plurality determined that a successful judicial takings plaintiff “must prove the elimination of an established property right” by the judicial decision. See id. at 726, 130 S.Ct. 2592.
Justice Kennedy, joined by Justice Soto-mayor, would have decided the case under the Due Process Clause of the Fourteenth Amendment, rather than the Takings Clause, and stated that it was unnecessary “to determine whether, or when, a judicial decision determining the rights of property owners can violate the Takings Clause of the Fifth Amendment of the United States Constitution.” Id. at 733-37, 130 S.Ct. 2592 (Kennedy, J., concurring in part and concurring in the judgment). Justice Kennedy acknowledged that “[t]o announce that courts too can effect a taking when they decide cases involving property rights, would raise certain difficult questions.” Id. at 737, 130 S.Ct. 2592. Justice Kennedy feared that a judicial takings doctrine would give judges more power by allowing them to decide what property should or should not be taken and paid for by the government, a responsibility that the judiciary historically has not possessed. See id, at 738-39, 130 S.Ct. 2592. Additionally, “it may be unclear in certain situations how a party should properly raise a judicial takings claim” and what remedy courts are able to grant. See id. at 740-41, 130 S.Ct. 2592.
Justice Breyer’s concurrence, joined by Justice Ginsburg, found no unconstitutional taking had occurred and indicated it was unnecessary to decide whether courts could effect a taking or what would constitute a judicial taking. See id. at 742-44, 130 S.Ct. 2592 (Breyer, J., concurring in part and concurring in the judgment). Justice Breyer shared some of the concerns expressed by Justice Kennedy about establishing a judicial takings doctrine, since it “would invite a host of federal takings claims without the mature consideration of potential procedural or substantive legal principles that might limit federal interference in matters that are primarily the subject of state law.” Id. at 743, 130 S.Ct. 2592. In the end, a majority of the Supreme Court justices were only able to agree that if there could be such a thing as a judicial taking, the Florida Supreme Court decision under review was not one. See id. at 733, 130 S.Ct. 2592 (majority opinion).
Since the Stop the Beach decision, courts have varied in their treatment of judicial takings claims. Some courts, including the United States Court of Appeals for the Federal Circuit, have determined that judicial takings can exist, although without concluding that a judicial taking actually occurred. See Smith v. United States, 709 F.3d at 1116 (“In that case [Stop the Beach], the Court recognized that a takings claim can be based on the action of a court.”); Vandevere v. Lloyd, 644 F.3d 957, 964 n.4 (9th Cir.) (“[A]ny branch of state government could, in theory, effect a taking.” (citing Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. at 713-15, 130 S.Ct. 2592 (plurality opinion))), cert. denied, — U.S. -, 132 S.Ct. 850, 181 L.Ed.2d 550 (2011). . A number of courts faced with judicial takings claims have declined to address the question of whether a court can effect a taking, and have dismissed the claims on other grounds. See, e.g., Bettendorf v. St. Croix Cnty., 631 F.3d 421, 435 n. 5 (7th Cir.2011) (declining to decide “whether a court decision can effect a compensable taking of property”); Allustiarte v. United States, 256 F.3d 1349, 1352 (Fed.Cir.) (finding that the court lacked jurisdiction over a judicial takings claim), cert. denied, 534 U.S. 1042, 122 *380S.Ct. 619, 151 L.Ed.2d 541 (2001); Weigel v. Maryland, 950 F.Supp.2d 811, 837-38 (D.Md.2013) (“The Court need not determine whether ft judicial takings claim is constitutionally cognizable here, because the Plaintiffs have failed to show a clear likelihood of success on their claim that a ‘taking has occurred in the first place.”), appeal dismissed, (4th Cir.2014).
Two United States Court of Appeals for the Federal Circuit decisions indicate that a court could effect a taking in violation of the Fifth Amendment, at least in theory. First, Boise Cascade Corporation v. United States held that the Court of Federal Claims had jurisdiction to consider a claim that a district court injunction took plaintiffs property rights, although the court went on to dismiss the claim as unripe. Boise Cascade Corp. v. United States, 296 F.3d 1339, 1344, 1357 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003). More recently, the Federal Circuit in Smith v. United States stated that in Stop the Beach, “the Court recognized that a takings claim can be based on the action of a court” and that “it was recognized prior to Stop the Beach that judicial action could constitute a taking of property.” Smith v. United States, 709 F.3d at 1116-17. The Federal Circuit went on to dismiss the judicial takings claim for violating the statute of limitations. See id. at 1117. This court finds that it is not necessary to determine if plaintiffs judicial takings claim is cognizable in federal court because, even if it is, the United States Court of Federal Claims lacks jurisdiction to determine if a judicial taking occurred in these cases.
The Federal Circuit has repeatedly held that the Court of Federal Claims lacks jurisdiction over judicial takings claims that require the court to scrutinize the decisions of other tribunals for the same plaintiff given the same set of facts.10 See Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1352 (Fed.Cir.2015) (“Binding precedent establishes that the Court of Federal Claims has no jurisdiction to review the merits of a decision rendered by a federal district court.”); Innovair Aviation Ltd. v. United States, 632 F.3d 1336, 1344 (Fed.Cir.) (“[T]he Court of Federal Claims does not have jurisdiction to review the decision of district courts and cannot entertain a takingfs] claim that requires the court to scrutinize the actions of another tribunal.” (internal quotation marks omitted; brackets in original)), reh’g en banc denied, (Fed.Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 999, 181 L.Ed.2d 790 (2012); Vereda Ltda. v. United States, 271 F.3d 1367, 1375 (Fed.Cir.2001) (“[T]he Court of Federal Claims cannot entertain a taking claim that requires the court to scrutinize the actions of another tribunal.” (internal quotation marks omitted)); Allustiarte v. United States, 256 F.3d at 1352 (“ '[T]he Court of Federal Claims does not have jurisdiction to review the decisions of district courts.’ ” (quoting Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994))); see also Potter v. United States, 121 Fed.Cl. 168, 169 (2015); Martl v. United States,11 No. 09-*381299, 2010 WL 369212, at *2 (Fed.Cl. Jan. 29, 2010) (unpublished) (“[T]his court has no jurisdiction over takings claims that are founded on a challenge to the judgment of another federal court.”).
The most recent, precedential decision regarding judicial takings is Shinnecock Indian Nation v. United States decided by the United States Court of Appeals for the Federal Circuit in 2015. In Shinnecock, the Federal Circuit explained:
Permitting parties aggrieved by the decisions of Article III tribunals to challenge the merits of those decisions in the Court of Federal Claims would circumvent the statutorily defined appellate process and severely undercut the orderly resolution of claims. See 28 U.S.C. § 1291 (“The court of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.”); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (explaining that Article III “gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy”).
Shinnecock Indian Nation v. United States, 782 F.3d at 1353 (emphasis in original); see also Brace v. United States, 72 Fed.Cl. 337, 359 (2006) (finding that it would be “untenable” for the Court of Federal Claims to hear judicial takings claims because “it would constantly be called upon by disappointed litigants to act as a super appellate tribunal reviewing the decisions of other- courts to determine whether they represented substantial departures from prior decisional law”), aff'd, 250 Fed.Appx. 359 (Fed.Cir.2007), cert. denied, 552 U.S. 1258, 128 S.Ct. 1658, 170 L.Ed.2d 356 (2008).12 Often, a judicial takings claim is brought as a “collateral attack” on the judgment of another tribunal. See Shinnecock Indian Nation v. United States, 782 F.3d at 1353 (characterizing plaintiffs judicial takings claim as “an attempt to mount an improper collateral attack on the judgment of the district court”); Innovair Aviation Ltd. v. United States, 632 F.3d at 1344 (“[T]he trial court’s finding that the bond amount was not just compensation is a collateral attack on the Arizona Court’s approval of the bond amount.”); Allustiarte v. United States, 256 F.3d at 1352 (“To permit collateral attacks on bankruptcy court judgments would ‘seriously undercut[] the orderly process of the law.’ ” (quoting Celotex Corp. v. Edwards, 514 U.S. 300, 313, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995))).13 '
*382Based on these principles, the Court of Federal Claims and the Federal Circuit have rejected a variety of claims that required the court to review the decisions of another federal tribunal in a takings context. See, e.g., Shinnecock Indian Nation v. United States, 782 F.3d at 1348, 1352-53 (affirming a Court of Federal Claims decision, which barred plaintiff from amending its complaint to add a judicial takings claim because such a claim would be “futile”); Innovair Aviation Ltd. v. United States, 632 F.3d at 1344 (holding that the court lacked jurisdiction over plaintiffs “collateral attack” on an Arizona court’s approval of a res bond); Barth v. United States, 76 Fed.Appx. at 945-46 (ruling that the Court of Federal Claims lacked jurisdiction to determine whether a federal court’s decision not to abate a nuisance constituted a taking); Vereda, Ltda. v. United States, 271 F.3d at 1375 (holding that the Court of Federal Claims lacked jurisdiction to review an in rem administrative forfeiture of property); Allustiarte v. United States, 256 F.3d at 1352 (holding that the Court of Federal Claims lacked jurisdiction to determine if a bankruptcy court effected a taking of the plaintiffs property by approving the bankruptcy trustee’s alleged mishandling of assets); Joshua v. United States, 17 F.3d at 380 (affirming the dismissal of the plaintiffs claim that the dismissal of his earlier federal district court claim violated the Takings Clause); Martl v. United States, 2010 WL 369212, at *2 (dismissing for lack of jurisdiction where plaintiff claimed that a federal district court committed a taking when it issued a default judgment against her that required the sale of her property).
The case of Boise Cascade Corp. v. United States stands alone as the one case in which the Federal Circuit has found that the United States Court of Federal Claims did in fact have jurisdiction over a judicial takings claim. See Boise Cascade Corp. v. United States, 296 F.3d at 1344. .The plaintiff in Boise Cascade Corp. alleged that a federal district court took its property when the court issued an injunction preventing Boise from logging on its land unless it obtained an Incidental Take Permit pursuant to the Endangered Species Act. See id. at 1341-42. The Federal Circuit ultimately dismissed the claim as unripe, but first it determined that the Court of Federal Claims could exercise jurisdiction. The Federal Circuit in Boise acknowledged that “Article III forbids the Court of Federal Claims, an Article I tribunal, from reviewing the actions of an Article III court.” Id. at 1344 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. at 218-19, 115 S.Ct. 1447). The Federal Circuit found, however, that:
[Rjesolution of this case did not require the Court of Federal Claims to review the merits of the district court’s order enjoining Boise from logging without a permit. Boise has accepted the validity of the injunction, and only filed suit in the Court of Federal Claims to determine whether the Service’s assertion of jurisdiction over it by seeking and obtaining the injunction worked a taking of its property that requires compensation under the Takings Clause. Whether or not the government action took Boise’s property was not before the district court, nor could it have been. Because Boise seeks over $10,000 in compensation for this alleged taking, the Court *383of Federal Claims is the sole forum available to hear Boise’s claim. See 28 U.S.C. § 1346(a)(2) (2000). Because the takings claim does not require the trial court to review the district court’s actions, there is no constitutional defect in the Court of Federal Claims’ assertion of jurisdiction over this case.
Id. In addition to emphasizing that the Court of Federal Claims was not required to review the merits of the decision of the District Court, the Boise court sought to distinguish Boise’s claim from other cases in which the Federal Circuit found that the Court of Federal Claims lacked jurisdiction to scrutinize the decisions of other tribunals, with particular focus on Allustiarte v. United States, 256 F.3d 1349 and Vereda, Ltda. v. United States, 271 F.3d 1367. See Boise Cascade Corp. v. United States, 296 F.3d at 1344-45.
As noted above, in Allustiarte, several plaintiffs alleged that they suffered a taking at the hands of the bankruptcy courts in the Ninth Circuit. See Allustiarte v. United States, 256 F.3d at 1350-51. Specifically, they alleged that the court-appointed bankruptcy trustee had mishandled their assets, and the bankruptcy court wrongfully approved the trustee’s actions. See id. The Federal Circuit held that the Court of Federal Claims lacked jurisdiction over the plaintiffs’ claims because determining whether a judicial taking occurred “would require the court to scrutinize the actions of the bankruptcy trustees and courts,” which the Court of Federal Claims lacks jurisdiction to do. Id. at 1352 (citing Joshua v. United States, 17 F.3d at 380). In Vereda, the Federal Circuit similarly held that a mortgagee may not assert a Fifth Amendment taking claim in the Court of Federal Claims following the government’s in rem administrative forfeiture of the property securing its mortgage. See Vereda, Ltda. v. United States 271 F.3d at 1396, 1375.
The Boise court held that “unlike in Vere-da and Allustiarte, Boise’s takings claim is not based on the propriety of the district court’s decision, and the trial court therefore would not be called upon to review the merits of the district court’s decision in order to decide the merits of Boise’s claim.” Boise Cascade Corp. v. United States, 296 F.3d at 1345. Boise’s challenge was not to the validity of the district court’s injunction, but to the government’s use of the courts to enforce the provisions of the Endangered Species Act and restrict the use of its land. As the court noted, the fact that the government “chose to effectuate its mandate to enforce the ÉSA [Endangered Species Act] through a court action rather than through an 'agency cease and desist order, for instance, cannot insulate the United States from its duty to pay compensation that may be required by the Fifth Amendment.” Id.
In the above captioned cases, the court must determine if Petro-Hunt’s judicial takings claim requires the court to scrutinize the United States Court of Appeals for the Fifth Circuit’s decision, or, like Boise, can be decided without the need to scrutinize the ruling of another tribunal. ' This court finds that plaintiffs claim is not like Boise, and would require the court to scrutinize the decision of the Fifth Circuit. Plaintiffs claim does not attack the discretionary action of a government agency, which chose to exercise its authority through the courts. Instead, these cases are more like those that ask this court to review the decision of an “impartial judicial arbiter whose actions have been improperly appealed to the Court of Federal Claims.” Boise Cascade Corp. v. United States, 296 F.3d at 1345. Indeed, deciding Petro-Hunt’s current claim on the merits would require this court to determine if Pe-tro-Hunt had an established property right that was taken by the Fifth Circuit. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. at 715, 130 S.Ct. 2592 (plurality opinion). The only way to determine if Petro-Hunt had an established property right in the mineral servi-tudes is to decide whether the mineral servi-tudes had prescribed, as a matter of federal common law, to the United States prior to the Fifth Circuit’s 2007 decision. In other words, this court would have to determine if the Fifth Circuit was correct in its finding that Little Lake Misc.e and Central Pines established that lands sold to the United States before the enactment of Act 315, like the surface lands in question here, were sub*384ject to Louisiana’s ten-year prescription rule. See Petro-Hunt, L.L.C. v. United States, 365 F.3d at 392-93. If the Fifth Circuit was correct in this finding, then Petro-Hunt lost possession of its land long before the 2007 Fifth Circuit decision and it had no established property right that could have been taken by the court’s decision. If the Fifth Circuit was incorrect in its application of precedent, and actually created a new rule depriving Petro-Hunt of its previously established property, then the Fifth Circuit may have effected a compensable taking of Petro-Hunt’s mineral servitudes. This court lacks jurisdiction to determine whether or not the Fifth Circuit correctly interpreted its own precedent, and, therefore, lacks jurisdiction over plaintiffs judicial takings claim. See Shinnecock Indian Nation v. United States, 782 F.3d at 1348, 1352-53; Allustiarte v. United States, 256 F.3d at 1352.
In Stop the Beach, the majority of the Supreme Court made clear that “[t]here is no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral-property owners had rights to future accretions and contact with the water superior to the State’s right to fill in its submerged land.” Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. at 730, 130 S.Ct. 2592. In deciding whether the petitioner had an established property right, the Court analyzed the challenged decision and determined that the Florida Supreme Court had reached the correct conclusion. Id. at 730-33, 130 S.Ct. 2592 (majority opinion) (holding that the Florida Supreme Court decision was consistent with the state’s property law in finding that petitioner did not have the littoral rights). Similarly, this court would have to analyze the correctness of the Fifth Circuit decision to rule on plaintiffs claim. In Stop the Beach, the Supreme Court had the authority to scrutinize the decision of the Florida Supreme Court, as the case had properly been appealed to the Supreme Court for review. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 557 U.S. 903, 129 S.Ct. 2792, 174 L.Ed.2d 290 (2009) (granting certiorari). The Court of Federal Claims, however, has no appellate authority over decisions of the Fifth Circuit and cannot undertake the type of review that the Supreme Court exercised in Stop the Beach.
Petro-Hunt, like the plaintiffs in Allust-iarte and Marti, insists that the court does not have to scrutinize the decision of another tribunal, because plaintiff does not challenge whether or not the Fifth Circuit was correct. Before this court, plaintiff claims that “the Court does not have to examine the propriety of a court’s decision to resolve Petro-Hunt’s takings claim.” This language is similar to the Allustiarte plaintiffs’ argument before the Court of Federal Claims, in which the Allustiarte plaintiffs claimed that they were “not seeking to avoid, defeat, or evade any judgment of a bankruptcy court,” but only to obtain just compensation for the taking. Allustiarte v. United States, 46 Fed.Cl. 713 (2000), aff'd, 256 F.3d 1349 (Fed.Cir.), cert. denied, 534 U.S. 1042, 122 S.Ct. 619, 151 L.Ed.2d 541 (2001). Likewise in Martl. v. United States, the Marti plaintiff claimed that the case before the Court of Federal Claims was not a collateral attack against the district court judgment. The Marti court, however, found that “there is no other interpretation of her suit. Her complaint is replete with allegations of wrongdoing and errors of law committed by the district court to the exclusion of any other averred basis for relief.” Martl. v. United States, 2010 WL 369212, at *2.
Petro-Hunt’s own submissions undercut the argument that it is not challenging the propriety of the Fifth Circuit’s decision. For example, plaintiffs response to the motion to dismiss frames this court’s role as determining if the Fifth Circuit decisions “effectively transformed Petro-Hunt’s private property into public property,” and argues that the mineral servitudes were “imprescriptible” prior to the Fifth Circuit decision in 2007. Additionally, plaintiff argues that Nebo Oil should have controlled the outcome of the case, and argues that the Fifth Circuit’s decision was incorrect, and claims that “[t]he ultimate result of the QTA [quiet title action] was inconsistent with the'principles set forth in Nebo [Oil] and the other relevant principles applicable to Petro-Hunt’s established property right and deprived Petro-Hunt of its ownership of the mineral servitudes in *385perpetuity.” This court, however, cannot determine if plaintiffs mineral servitudes were “previously imprescriptible,” or “transformed” from private to public property, without determining whether the Fifth Circuit’s interpretation of precedent was correct. Because the court cannot determine whether the Fifth Circuit took plaintiffs property without scrutinizing the Fifth Circuit’s decision, the court lacks jurisdiction over plaintiffs claim. The court does not need to address the remaining arguments in defendant’s motion to dismiss or the parties’ cross motions for summary judgment.14
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is hereby GRANTED. Plaintiffs complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this opinion in Case No. 00-512L and Case No. 11-776L.
IT IS SO ORDERED.
. Judge Francis Allegra, the Judge previously assigned to these cases, issued seven earlier opinions in Case No. 00-512L. See Petro-Hunt, L.L.C. v. United States, 114 Fed.Cl. 143 (2013); Petro-Hunt, L.L.C. v. United States, 113 Fed.Cl. 80 (2013); Petro-Hunt, L.L.C. v. United States, 108 Fed.Cl. 398 (2013); Petro-Hunt, L.L.C. v. United States, 105 Fed.Cl. 132 (2012); Petro-Hunt, L.L.C. v. United States, 105 Fed.Cl. 37 (2012); Petro-Hunt, L.L.C. v. United States, 91 Fed.Cl. 447 (2010); Petro-Hunt, L.L.C. v. United States, 90 Fed.Cl. 51 (2009). The court includes only the findings of fact relevant to this opinion in order to address the pending motions.
. As Judge Allegra previously noted: “The eleven instruments of transfer all expressly excluded the mineral servitudes, which the grantors reserved for Good Pine Oil, a joint venture created by Bodcaw Lumber, Grant Timber, and three other lumber companies.” Petro-Hunt, L.L.C. v. United States, 105 Fed.Cl. at 40.
.The relevant part of Act 315 provides: "Be it enacted by the Legislature of Louisiana, That when land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America, or any of its subdivisions or agencies, from any person, firm or corporation, and by the act of acquisition conveyed subject to a prior sale or reservation of oil, gas, and/or other minerals or royalties, still in force and effect, said rights so reserved or previously sold shall be imprescriptible.” United States v. Nebo Oil Co., 90 F.Supp. 73, 80 (W.D.La.1950) (quoting Act 315 (codified as amended at La.Rev.Stat. Ann. § 31:149)), aff'd, 190 F.2d 1003 (5th Cir. 1951).
. In 1942, Nebo Oil Company acquired all of the mineral rights formerly held by Good Pine Oil Company, Inc.
. The Central Pines case addressed the seemingly contrary precedent of Nebo Oil, and determined that Nebo Oil's limited holding only addressed the constitutionality of Act 315 under the Contract Clause of the United States Constitution and the Due Process Clause of the Fourteenth Amendment. See Cent. Pines Land Co. v. United States, 274 F.3d at 889 ("Nebo Oil holds only that the mere hope’ or 'expectancy' in the prescription of mineral rights is not protected by the Contract Clause of the U.S. Constitution, and that the retroactive application of Act 315 does not violate the Due Process Clause of the Fourteenth Amendment or dispose of United States property in violation of Article IV, Section 3, clause 2.” (footnote omitted)). Therefore, Little Lake Misc.e’s holding that Act 315 could not be applied as a matter of federal common law did not necessarily overrule the constitutional analysis of Nebo Oil, although it did "reject!] the presumption in Nebo Oil that Louisiana law governed the terms of the transactions at issue.” Petro-Hunt, L.L.C. v. United States, 365 F.3d at 393 (citing Cent. Pines Land Co. v. United States, 274 F.3d at 889-90) (footnote omitted).
. This decision specifically addressed five servi-tudes, which had not prescribed because they had been maintained by drilling or production activities. The sixth servitude is the Nebo Oil servitude, which had not prescribed to the United States because of the res judicata effect of the Nebo Oil decision. See Petro-Hunt, L.L.C. v. United States, 365 F.3d at 397 (holding that the res judicata effect of Nebo Oil only extends to the particular servitudes at issue in that case).
. Judge Allegra's earlier decision did not address whether the court had jurisdiction to consider the plaintiffs judicial takings claims, only that the judicial takings claims were not barred by 28 U.S.C. § 1500. In his decision, Judge Allegra noted that:
The Fifth Circuit’s second decision was issued on March 6, 2007, and the Supreme Court’s denial of certiorari was on March 3, 2008. Because these events occurred after the filing of plaintiff’s original complaint, to the extent plaintiff’s most recent complaint raises a judicial takings issue, it must be viewed not as an amended complaint under RCFC 15(c), but rather as a supplemental complaint under RCFC 15(d).
Petro-Hunt, L.L.C. v. United States, 105 Fed.Cl. at 44. Judge Allegra also concluded that:
[I]t makes little sense to hold, as defendant essentially suggests, that plaintiff's judicial takings claim is barred by section 1500 because that new count was added to a suit filed when the district court action was pending, but would not be barred if plaintiff chose to file a new suit featuring that count and then moved to consolidate that suit with this case. Critically, plaintiff’s judicial takings claim rests upon "independent operative facts” that are not only unlike those in the first two complaints it filed in this case, but also unlike those that were operative in the claims that it originally pursued in the district court.
Petro-Hunt, L.L.C. v. United States, 105 Fed.Cl. at 45.
. Justice John Paul Stevens recused himself from tte case.
; In a non-presidential opinion, the Federal Circuit also has indicated that "[t]he appellant (Barth] asked the Court of Federal Claims to scrutinize the actions of coordinate federal courts to determine whether their actions effected a taking of his property. That was beyond the Court of Federal Claims’ jurisdiction.” Barth v. United States, 76 Fed.Appx. 944, 945-46 (Fed.Cir.), cert. denied, 540 U.S. 1049, 124 S.Ct. 820, 157 L.Ed.2d 697 (2003) (footnote omitted).
. The Marti case is related to a recent decision of the undersigned, Milgroom et al. v. United States, 122 Fed.Cl. 779 (2015), involving the , same underlying facts as the Marti case. In the Milgroom case, this court determined:
This court is without jurisdiction to review the alleged taking by the District Court, a judicial taking, see Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Protection et al., 560 U.S. 702 [130 S.Ct. 2592, 177 L.Ed.2d 184] (2010), because review in this case of such, a taking "would require the Court of Federal Claims to scrutinize the merits of the district court’s judgment, a task it is without authority to undertake.” Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1352 (Fed.Cir.2015); see also Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) ("[T]he Court of Federal Claims does not have jurisdiction to review the decisions of district courts or the clerks of district courts relating to proceedings before those courts.”). Just as the Court of Federal Claims does not have jurisdiction to review the decisions of the United States District Courts, the Court of Federal Claims also does not have jurisdiction to review decisions of the United States Bankruptcy Courts. See *381Allustiarte v. United States, 256 F.3d 1349, 1351 (Fed.Cir.2001) (holding that the Court of Federal Claims does not have jurisdiction to entertain judicial takings claims against federal bankruptcy courts because "[sjuch a determination would require the court to scrutinize the actions of the bankruptcy trustees and courts"), cert. denied, 534 U.S. 1042 [122 S.Ct. 619, 151 L.Ed.2d 541] (2001); Mora v. United States, 118 Fed.Cl. 713, 716 (2014) ("[T]his court does not have jurisdiction to review the decisions of state courts, federal bankruptcy courts, federal district courts, or federal circuit courts of appeals.”).
Milgroom et al. v. United States, 122 Fed.Cl. at 801-802.
. In an non-precedential decision, the United States Court of Appeals for the Federal Circuit also indicated;
The Court of Federal Claims is a court of limited jurisdiction. It is vested with jurisdiction under the Tucker Act to adjudicate monetary claims against the United States founded upon the Takings Clause of the United States Constitution, Acts of Congress, regulations, or contracts, and requires a money mandating act to confirm jurisdiction. 28 U.S.C. § 1491(a)(1); United States v. Mitchell, 463 U.S. 206, 215-218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The Court of Federal Claims “has no jurisdiction to adjudicate any claims whatsoever under the federal criminal code.” Joshua v. United States, 17 F.3d 378, 379 (Fed.Cir.1994). It does not have jurisdiction to review the judgments of the United States district courts or circuit courts. Shinnecock Indian Nation v. United States, 782 F.3d 1345, 1353 (Fed.Cir.2015). We thus find no error in the Court of Federal Claims’ conclusions that it lacks jurisdiction to review the judgments of the Eighth Circuit, and that Garcia has failed to allege a cause of action over which the court has subject matter jurisdiction.
Garcia v. United States, 629 Fed.Appx. 951, 952-53 (Fed.Cir.2015).
. The Federal Circuit in Shinnecock noted that
[t]he situation presented here parallels that presented in Allustiarte, 256 F.3d at 1351-53. There the plaintiffs brought suit in the Court of Federal Claims alleging that bankruptcy courts in the Ninth Circuit took their property without just compensation when they allowed the *382plaintiffs’ assets to be sold at less than fair value. Id. at 1350-51. The Court of Federal Claims dismissed the plaintiffs' suit for lack of jurisdiction and this court affirmed. We explained that the Court of Federal Claims was without authority to scrutinize the decisions of the bankruptcy courts (which are subordinate to Article III courts) and "to determine whether [the plaintiffs] suffered a categorical taking of their property at the hands of the ... courts.”
Shinnecock Indian Nation v. United States, 782 F.3d at 1352-53 (quoting Allustiarte v. United States, 256 F.3d at 1352). The Federal Circuit in Shinnecock noted that "[a] similar analysis applies here. The Nation alleges that in applying the doctrine of laches to bar its land claim, the district court improperly 'took away the Nation’s legal right to sue for compensation for its stolen land.' The Court of Federal Claims, however, is without authority to adjudicate the Nation's claim that it suffered a compensable taking at the hands of the district court.” Id. at 1353. The Federal Circuit concluded that "the Court [of Federal Claims] has no jurisdiction to review the decisions 'of district courts and cannot entertain a taking[s] claim that requires the court to scrutinize the actions of another tribunal.' ” Id. (quoting Innovair Aviation Ltd. v. United States, 632 F.3d at 1344).
. As conceded by plaintiff's counsel at oral argument, if the court grants defendant’s motion for a lack of jurisdiction as a result of the judicial taking, both of plaintiff's cases should be dismissed. Plaintiff's counsel stated, first "[i]f you rule against us on jurisdiction and the cause of action, then I would think you would dismiss both cases,” and in response to a question from the bench reiterated, "if you dismiss for either lack of jurisdiction or if you hold there’s no cause of action for a judicial taking, yes, you would dismiss both.” Plaintiff retains all appeal rights regarding Judge Allegra's earlier decisions, as well as the ability to appeal this decision. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218553/ | Rules of the United States Court of Federal Claims (“RCFC”) 16(a)(2) (Amended and Supplemental Pleadings).
MEMORÁNDUM OPINION AND FINAL ORDER REGARDING DAMAGES DUE FOR THE GOVERNMENT’S BREACH OF CONTRACT
BRADEN, Judge
On February 26, 2016, the court issued a Memorandum Opinion And Order Granting Plaintiffs’ Motion For Summary Judgment for breach of contract claims against the Government. See Hous. Auth. of the Cty. of Santa Clara et al. v. United States, 126 Fed.Cl. 557 (2016). Therein, pursuant to Rule 15(a)(2) of the Rules of the United States Court of Federal Claims, the court granted Plaintiffs leave to amend the March 30, 2012 Complaint to include breach of contract claims for 2013 and 2014, and ordered the parties to file a Joint Status Report on damages as to Count I and Count II within sixty days. See id. at 562 n. 12, 569.
' On March 30, 2016, Plaintiffs filed an Amended Complaint, adding breach of contract claims for 2013, 2014 and 2015 under Count II. Therein, Plaintiffs noted that the *451Government consented to the amending of Plaintiffs’ March 30, 2012 Complaint to in-elude a breach of contract claim for 2015.
On April 18, 2016, the Government filed an Answer.
On April 25, 2016, the parties filed a Joint Status Report regarding the damages due, pursuant to the method described in Exhibit C to the court’s February 25, 2016 Memorandum Opinion And Order. Pursuant to the court’s February 25, 2016 Memorandum Opinion And Order and the Joint Status Report, the Government is ordered to pay:
Count I Count II Total Amount Due for Counts I and II
Santa Clara: $6,400,647 $47,461,087 $53,861,734
San Jose: $4,314,535 $31,992,465 $36,307,000
The Clerk of the court is directed to enter judgment accordingly.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218555/ | ORDER AND FINAL JUDGMENT
SUSAN G. BRADEN, Judge
On June 6, 2016, the parties filed a Joint Status Report And Stipulation (EOF N.o. 101), requesting that the court revise the judgment entered on April 15, 2015, to reflect the cask loading costs amounts, as directed by the United States Court of Appeals for the Federal Circuit’s mandate. See System Fuels, Inc. v. United States, 818 F.3d 1302 (Fed. Cir. 2016).
Therefore, the Clerk of the Court is directed to vacate the judgment entered on April 15, 2015 and enter a Final Judgment in this case for Plaintiffs in the amount of $49,171,786.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218556/ | National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-l-34; Motion for Review; Autism; Influenza Vaccine
OPINION AND ORDER
YOCK, Senior Judge
This vaccine ease is before the court on petitioners’ motion for review of the decision *138of Special Master Corcoran, which denied petitioners’ claim for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq. (2012 ed.). After thorough review of the record in this case and the decision of Special Master Cor-coran, the court denies petitioners’ claim and affirms the special master’s decision.
I. BACKGROUND
A. Factual Background
Special Master Corcoran provided an exhaustive recitation of the facts of this case in his decision. Dec., ECF No. 160, at 2-12. Thus, the court refers readers to that decision for a comprehensive discussion of the facts. However, the court will provide a brief overview of the facts here for the convenience of the reader.
L.V. was bom at term by caesarean section on March 15, 2005. Pet’rs’ Ex. 1 at 7,15-16. Although L.V. was diagnosed with several ailments in his early months (i.e., acute naso-lacrimal stenosis, gastro-esophageal reflux, and onychia, among others), none of these diagnoses appeared to present any long-term health ramifications for L.V., well-child appointments found L.V. to be developing appropriately for his age, and L.V. was able to receive his vaccinations as necessary. Dec. at 2.
On November 8, 2006, L.V. was given his first dose of the flu vaccine (at approximately 20 months of age), and the second dose was administered on December 8, 2006. Pet’rs’ Ex. 3 at 125,128-29. Records from these two visits make no mention of any developmental problems or concerns from L.V.’s parents. On December 11, 2006, [E.V.] reported that L.V. was experiencing severe constipation but did not mention any other health concerns. Pet’rs’ Ex. 3 at 132. L.V. visited the doctor on December 13, 2006, and for the first time the pediatric records contained a concern with “speech delay.” On January 17, 2007, [R.V. and E.V.] obtained an initial early intervention assessment from Montgomery Country’s provider after requesting it on January 10th. See generally Pet’rs’ Ex. 13 at 1-11 and Ex. 30 at 475. This report placed L.V. (who was, at this time, approximately 22 months old) at eleven months for cognitive development, ten months for communication development, six months for social development, and sixteen months for fine motor/physical skills. Pet’rs’ Ex. 13 at 5-6. This report also contained references to L.V.’s having lost language and expressive abilities at around 18 months old. Id. at 5.
On January 23, 2007, Dr. James Coplan, M.D., of Neui'odevelopmental Pediatrics of the Main Line, P.C. in Rosemont, Pennsylvania, performed another early evaluation assessment of L.V. Dr. Coplan diagnosed L.V. with autism or autism spectrum disorder (“ASD”). Pet’rs’ Ex. 5 at 4-6. This was the first time L.V. had officially been diagnosed with autism or ASD. On May 21, 2007, Dr. Hillary Kruger, M.D., at the Children’s Hospital of Philadelphia evaluated L.V. and concurred with the earlier diagnosis of autism. See generally Pet’rs’ Ex. 6.
Seeking further information on L.V.’s condition and possible causes, [R.V. and E.V.] eventually obtained treatment beginning in August of 2008 from Dr. Richard Frye, a physician at the Child and Adolescent Neurology Clinic at the University of Texas Health Science center in Houston, Texas. Pet’rs’ Ex. 8 at 2, For the first time, Dr. Frye suggested that L.V. might have some sort of undiagnosed mitochondrial disorder that could have played a role in his autism or ASD. Id. A battery of tests were performed on L.V. over the course of the next two years, with the results on the whole suggesting that L.V. did not suffer from a mitochondrial disorder. See Dec. 9-10. On August 4, 2011, Dr. Frye diagnosed L.V. with a mitochondrial disorder according to a list of factors known as the Morava criteria. Pet’rs’ Ex. 72, Part 2 at 25-26. Specifically, Dr. Frye noted that L.V. exhibited three clinical signs consistent with a mitochondrial disorder (exercise intolerance, history of regression in skills, and gastrointestinal abnormalities), three metabolic indicators based on previous bloodwork (elevated lactate, urinary tricar-boxylic acid excretion, and ethylmalonic aci-duria), and abnormal mitochondrial morphology as viewed via electron microscopy. Dec. 11-12. Based on these factors, Dr. Frye *139scored L.V. a 9 on the Morava scale, indieat-ing a “definite” mitochondrial disease. Id.
B. Procedural Background
[R.V. and E.V.] filed their petition July 11, 2008. The petition was part of the Omnibus Autism Proceeding (“OAP”), a group of more than 5,400 test cases which claimed that certain vaccines caused autism that were joined for purposes of efficient resolution. From that group, six test eases were chosen and they presented two different theories regarding autism causation. Those theories were rejected in all six cases.2
Following this, [R.V. and E.V.] elected to remain in the Vaccine Program and filed an amended petition on April 9, 2012, alleging for the first time that L.V. had been diagnosed with a mitochondrial disease and that the influenza vaccine administered to L.V. on December 8, 2006, caused L.V.’s autism or ASD because of a susceptibility and vulnerability created by his mitochondrial disease. Am. Pet. at ¶33. Petitioners also claimed that the vaccine administered caused a regressive encephalophy resulting in L.V.’s physiological symptoms and developmental regression. Id. at ¶32. Petitioners filed a second amended petition on January 4, 2015. On April 13-14, the special master held a two-day entitlement hearing, in which the special master heard testimony from [E.V.], petitioners’ experts Drs. Kendall and Shafrir, and respondent’s expert Dr. Cohen,
On February 19, 2016, the special master issued his decision denying petitioners’ request for compensation. Petitioners’ filed the instant motion for review on March 21, 2016. Respondent filed its response on April 19, 2016. The matter is now ripe for disposition.
II. LEGAL STANDARDS
This court has jurisdiction to review a special master’s decision in a Vaccine Act case upon a properly filed petition for review. 42 U.S.C. § 300aa-12(e)(l). The court may set aside any of the special master’s findings of fact or conclusions of law if those determinations were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Id. at 12(e)(2)(B).
The court applies different standards to conclusions of law, findings of fact, and discretionary rulings. Masias v. Sec’y of Health & Human Servs., 634 F.3d 1283, 1287-88 (Fed. Cir. 2011)3; see also Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 871 n. 10 (Fed. Cir. 1992); Pafford v. Sec’y of Health and Human Servs., 64 Fed. Cl. 19, 27 (2005), aff'd, 451 F.3d 1352 (Fed. Cir. 2006). The 'court reviews conclusions of law under the “not in accordance with the law” standard,” findings of fact under the arbitrary and capricious standard, and discretionary rulings under the “abuse of discretion” standard. Saunders v. Sec’y of Health & Human Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994).
The arbitrary and capricious standard is “well understood to be the most deferential [standard] possible.” Munn, 970 F.2d at 870. “If the special master ‘has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.’ ” Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355, 1363 (Fed.Cir. 2012) (quoting Hines on Behalf of Sevier v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed Cir. 1991)). “Congress assigned to a group of specialists, the Special Masters within the Court of Federal Claims, the unenviable job of sorting through these painful cases and, based upon their accumulated expertise in the field, judging the merits of the individual claims.” Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d 1363, 1366 (Fed. Cir. 2013) (quoting Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (in ternal citations omitted)). It is not the role of this court to “reweigh the factual evidence,” “assess whether the special master correctly evaluated the evidence,” or “examine the pro*140bative value of the evidence or the credibility of the witnesses.” Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000).
III. DISCUSSION
In the motion for review, petitioners’ raise five objections to the special master’s decision. Petitioners claim that the special master acted arbitrarily, capriciously, and abused his discretion when he: (1) interpreted non-contemporaneous medical records and misconstrued contemporaneous medical records in finding that L.V.’s developmental delay predated his influenza vaccinations; (2) mis-characterized and credited non-contemporaneous medical records as contemporaneous in finding that L.V.’s developmental chronology showed onset of a developmental problem prior to administration of the influenza vaccines; (3) dismissed the medical diagnosis of L.V.’s treating physician and instead substituted an after-the-fact analysis improperly nullifying L.V.’s mitochondrial disease diagnosis; (4) failed to adequately consider evidence crediting the reliability of petitioners’ medical theory that vaccinations could impose a stress on the immune system of a child with a mitochondrial disorder, precipitating a developmental regression with autism-like symptoms; and (5) rejected the reliability of petition’s medical theory under Prong 1 of Althen, Mot. to Review at 2. The court shall discuss these objections in turn.
Petitioners’ first and second objections are similar and can substantially be understood thusly: petitioners believe it was arbitrary and capricious of the special master to credit retrospective evidence regarding L.V.’s condition over the contemporaneous medical record, which petitioners argue shows that L.V.’s development was normal and age-appropriate until the influenza vaccinations, given on November 8, 2006, and December 8, 2006, respectively, were administered.
In his decision, Special Master Corcoran noted that there were “numerous occasions on which [R.V. ahd E.V.] reported to ASD specialist treaters that they were aware of L.V.’s problems at 16-18 months, well before he received even the first flu vaccine,” which would have occurred when L.V. was approximately 20 months old. Dec. at 52. For example, the special master notes that [E.V.], in her testimony, admitted to having concerns about L.V.’s development prior to his receipt of the flu vaccine. Id. at 53. Furthermore, when faced with inconsistencies in the record, the special master was able to reconcile those inconsistencies in a way which would not discredit the entire record before him. Id. at 53 n. 85 (special master finding that the evidence suggested that Dr. Coplan’s assessment on L.V.’s self-feeding capabilities was closer to the truth than the contemporaneous pediatric record.).
In the view of the court, petitioners’ objections amount to nothing- more than mere disagreement with the special master’s decision. As stated previously, the court reviews a special master’s factual conclusions under the arbitrary and capricious standard, the most deferential standard of all. Munn, 970 F.2d at 870. After careful review of the case record and the special master’s decision, the court holds that the factual finding that L.V.’s developmental regression began prior to the administration of the influenza vaccine was not arbitrary and capricious. The decision reflects the special master’s careful review of all the evidence presented before him and details his thought process in weighing the evidence of the contemporaneous medical record prepared by L.V.’s treating pediatricians with the retrospective evidence prepared by experts such as Dr. Coplan. The special master’s factual finding was obviously based upon the evidence in the record. Because it is not the role of the court to reweigh the factual evidence, the court must afford the proper weight to the special master’s findings of fact.
Petitioners next contend that the special master erred when he concluded that L.V. did not have a mitochondrial disease or a mitochondrial dysfunction. At the hearing, the special master heard testimony from petitioners’ expert, Dr. Kendall, and respondent’s expert, Dr. Cohen regarding Dr. Frye’s diagnosis that L.V. had a “definite” mitochondrial disease under the Morava criteria. The special master rejected petitioners’ assertions that whether L.V. had a mitochon-*141cirial disease was simply a matter of decision whether the Morava scale’s point system was satisfied by the evidence. The special master instead chose to credit the testimony of Dr. Cohen, who noted that since the Morava scale was established, more up-to-date diagnostic guidelines had been developed to analyze symptoms. Dee. at 48. It was noted that L.V. lacked any of the clear “red flag” symptoms commonly associated with the most severe phenotypes of mitochondrial disease, such as MELAS or Leigh disease. Furthermore, L.V.’s muscle biopsy and genetic testing were negative for mitochondrial disease while biomarker test results were considered largely inconclusive. Id. at 49. Finally, of particular importance to the special master was the admitted testimony of Dr. Kendall, who acknowledged that L.V. did not have a primary mitochondrial disease based upon the lack of severity of other symptoms, and her struggles to point to any dramatic signs of post-vaccination regression. Id. Typically, the kind of dramatic regression that petitioners’ argue L.V. experienced would only occur to an individual suffering from one of these severe mitochondrial disorders. Id.
Once again, the court must afford the special master great deference on his factual findings and interpretation of the evidence presented and testimony given. In this case, it is clear that the special master thoroughly considered all of the relevant information placed before him, and ultimately considered respondent’s expert, Dr. Cohen, to be the more persuasive witness. Given the admitted inherent difficulty of diagnosing mitochondrial disorders, the special master chose to downplay the significance of Morava criteria because it gave too much weight to nonspecific findings by equating them with specific “réd-flag” criteria closely linked with known mitochondrial disease phenotypes. Indeed, even petitioners own expert, Dr. Kendall, admitted that Morava had “limited” application today given the development of more up-to-date criteria and testing procedures. Dec. at 32. Since the factual conclusion that L.V. did not suffer from a mitochondrial disorder is “based on evidence in the record that [is] not wholly implausible,” the court cannot find that the special master’s decision was arbitrary and capricious. Lampe, 219 F.3d at 1363.
Furthermore, to the extent that petitioners’ argue that the special master erred by not applying the proper weight to Dr. Frye’s diagnosis because he was one of L.V.’s treating physicians, that argument has no merit. It is well settled that the special master must consider all relevant medical and scientific evidence, as well as any diagnosis, conclusion, or medical judgment made regarding the nature, causation, and aggravation of an illness, “any such diagnosis, conclusion, judgment, test result, report, or summary shall not be binding on the special master or court.” 42 U.S.C. § 300aa-13(b)(l). Because the record of the case reflects that the special master did carefully consider all of the evidence and the record before him, the court cannot say it was erroneous of the special master to reach a conclusion contrary to one of L.V.’s treating physicians.
Finally, petitioners’ contend that the special master failed to adequately consider evidence crediting the reliability of petitioners’ medical theory that vaccinations could impose a stress on the immune system of a child with a mitochondrial disorder, precipitating a developmental regression with autism-like symptoms. This ties into their next objection: that the special master erred when he rejected petitioners’ medical theory under prong one of the Althen test. Overall, petitioners contend that “as a whole, the eviden-tiary record before the special master amply demonstrated that petitioners proffered a plausible and reliable medical theory.” Mot. at 35. Petitioners’ rely on Paluck v. Sec’y of HHS for the proposition a “vaccination can significantly aggravate an underlying mitochondrial condition predisposing a child to defects in cellular energy metabolism manifesting as a regressive encephalophy.” Id. (citing Paluck v. Sec’y of HHS, 104 Fed.Cl. 457 (Fed. Cl. 2012)). Once again, the court finds that petitioners’ argument has no moment because the special master did consider petitioners’ theory of causation.
In Althen, the Federal Circuit held that in order to establish entitlement to a vaccine Program award of compensation, a petitioner must satisfy three criteria: “(1) a medical *142theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.Cir.2005).
At the hearing, the special master heard testimony from Dr. Kendall that, in her opinion, a vaccine can cause oxidative stress in an individual with a mitochondrial disorder, resulting'in a developmental regression. Mot. at 35. In analyzing this testimony, the special master noted that Dr. Kendall’s testimony “primarily relied on case studies .,. that are limited in probative value since they describe only unrepresentative outlier instances that ultimately assume, without direct study or evidence, that vaccination could precipitate a chain of events resulting in regression.” Dec. at 55. After describing why the case studies were of limited value, the special master concluded that Dr. Kendall “generally failed to provide reliable evidence plausibly linking the flu vaccine to regression in individuals with mitochondrial diseases.” Id. Upon review, the court concludes that the special master did not err when he determined petitioners failed to satisfy the first Althen prong. Additionally, the special master distinguished Paluck from the instant case, noting that it involved different vaccines, a more obvious immediate reaction, and that most importantly, that the child’s mitochondrial disease was not a contested fact. Id. at 39. The court agrees that Paluck is factually distinct from the present case — each vaccine case is the result of its own specific set of facts. The fact that the Paluck court found plausible the theory that the Measles/Mumps/Rubella vaccine aggravated an underlying mitochondrial disorder does not mean that advancing a similar'theory under a different set of facts should satisfy Althen.
Overall, the special master’s assessment of the experts, medical records, and other evidence and conclusion that petitioners had failed to demonstrate a causal link between DAC’s vaccines and autism was not arbitrary or capricious. The record reflects that the special master carefully and thoroughly weighed the evidence before him and determined that petitioners' had not provided a legally probable theory of causation-in-fact. The special master appropriately evaluated the parties’ expert witnesses’ credibility, citing their credentials, mastery of DAC’s medical records, and ability to support their theories. Plaintiffs motion for reconsideration is, at its core, nothing more than a rehashing of arguments already raised and considered by the special master.
The court also notes that causation theories based on autism have been uniformly rejected. An initial round of test claims based on autism theories were brought and denied as part of an omnibus proceeding. Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. Sec’y of Health & Human Servs., 88 Fed.Cl. 706 (2009); Dwyer v. Sec’y of Health & Human Servs., No. 03-1202V, 2010 U.S. Claims LEXIS 86, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 201); King v. Sec’y of Health & Human Servs., No. 03-584V, 2010 U.S. Claims LEXIS 87, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar 12, 2010); Mead v. Sec’y of Health & Human Servs., No. 03-215V, 2010 U.S. Claims LEXIS 88, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). Subsequently, special masters have rejected numerous claims based on autism. See Canuto v. Sec’y of HHS, 2016 U.S. Claims LEXIS 368, at *12 n.7.
IV. CONCLUSION
For the reasons set forth above, petitioners’ MOTION for review is DENIED and the special master’s decision is affirmed. The Clerk is hereby directed to enter judgment according to the special master’s decision.
IT IS SO ORDERED.
. For a more in-depth look at this process, the court refers readers to the special master’s decision at page 12, footnote 32.
. "Under the Vaccine Act, [the Circuit] review[s] a decision of the special master under the same standard as the Court of Federal Claims.” Masias, 634 F.3d at 1287. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218557/ | Federal Tort Claims Act, 28 U.S.C. § 2672 (Administrative Adjustment of Claims); Maryland Wage Payment And Collection Law; Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (Jurisdiction); Tucker Act, 28 U.S.C. § 2501 (Statute of Limitations).
MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S MOTION TO DISMISS
BRADEN, Judge.
I. RELEVANT FACTUAL BACKGROUND. 1
Bryan O. Crane is a former civilian employee of the Naval Air Systems Command *171(“NAVAIR”). Compl. ¶ 2. On February 12, 2000, Mr. Crane was injured in a work-related accident. Compl. at 10,2 On February 3, 2003, Mr. Crane reported back to NAVAIR for work. Compl. at 11. On February 7, 2003, Mr. Crane informed NAVAIR that he could not continue working, because “agreed upon ergonomic accommodations were not provided ... [and] would not be forthcoming within a reasonable period of time.” Compl. at 11.
During the subsequent period when Mr. Crane was unable to report to work, he received workers’ compensation benefits. Compl. at 10-11. Between February 14, 2003 and April 13, 2005, however, the Defense Financial and Accounting Services (“DFAS”), NAVAIR’s payroll provider, also continued to pay Mr. Crane’s wages. Compl, Ex. 5, at 12.
On February 13, 2004 and January 3, 2006, to repay wages mistakenly made by DFAS, Mr. Crane sent DFAS two personal checks that totaled $16,837.06. Compl. Ex. 4, at 2; see also Compl. Ex. 7, at 1, 3. In addition, Mr. Crane returned five government cheeks in the total amount of $7,962.38, leaving an outstanding balance of $18,366.84 to be repaid. Compl. Ex. 4, at 2. DFAS also deducted $ 10,280.00 from offset amounts allowable by law.3 Compl. Ex. 4, at 2. These deductions left Mr. Crane with an outstanding balance of approximately $8,000.00. Compl. Ex. 4, at 2.
On July 3, 2006, Mr. Crane retired from federal service for medical reasons. Compl. Ex. 3, at 2. At the time of his retirement, DFAS estimated that Mr. Crane was entitled to a lump-sum of $9,755.00 for accrued annual leave. Compl. Ex. 22. Because of Mr. Crane’s outstanding balance, DFAS applied his annual leave due to eliminate the outstanding balance for overpaid wages. Compl. Ex. 4, at 2. Mr. Crane claimed that DFAS improperly “confiscated $9,755.00 of vacation pay to apply against [his] alleged and nonexistent debt.” Compl. at 13.
On March 19, 2008, Mr. Crane appealed DFAS’s actions to the Office of Personnel Management (“OPM”). Compl. Ex. 3, at 2. Mr. Crane disputed DFAS’s determination that he owed money for salary overpayment during the tax years 2003 through 2006 and requested reimbursement of the lump-sum annual leave payment that he did not receive. Compl. Ex. 3, at 2. On March 31, 2008, OPM informed Mr. Crane that he had to file a claim with the Department of Navy (“Navy”), before he could file a claim with OPM. Compl. Ex. 3, at 2. On March 31, 2008, Mr. Crane filed a claim with the Navy. Compl. Ex. 3, at 2.
On May 5, 2008, Mr. Crane again sent a letter to the Navy disputing the amount owed. Compl. Ex. 4, at 1. Mr. Crane also asked United States Senator Bill Nelson to intervene on his behalf. Compl. Ex, 4, at 1. On April 24, 2008, DFAS responded to Senator Nelson including an audit of Mr. Crane’s pay records that showed Mr. Crane was entitled to are fund of $1,8 86.51 that was paid. Compl. Ex. 3, at 3; Compl. Ex. 4, at -2. On September 15, 2009, Mr. Crane’s claim was denied. Compl. Ex. 3, at 2.
On October 9, 2009, Mr. Crane provided OPM with a copy of the denial letter. Compl. Ex. 3, at 2. On November 17, 2009, OPM accepted the claim and requested an agency administrative report (“AAR”) from the Navy. Compl. Ex. 4; Compl. Ex. 3, at 2. On December 7, 2009, the Navy provided OPM with an AAR, including a detailed Audit Summary of Mr. Crane’s pay records from 2003 through 2006. Compl. Ex, 4, at 1. The December 7, 2009 AAR stated that “[i]t is the position of the [Navy] that the DFAS response to Senator Nelson adequately and completely addresses all of the substantive issues raised by Mr. Crane regarding his salary overpayment and his claim should be disallowed.” Compl. Ex. 4, at 1.
On January 25, 2010, Mr. Crane responded that DFAS wrongfully applied his lump sum *172annual leave towards the balance he owed for wage overpayments. ■ Compl. Ex. 8, at 3.
On November 15, 2012, OPM issued a decision denying Mr. Crane’s claim, finding that he had failed to establish that “DFAS calculated his salary overpayment incorrectly.” Compl. Ex. 8, at 5.
II. PROCEDURAL HISTORY.
On April 29, 2015, Mr. Bryan O. Crane (“Plaintiff’) filed a Complaint (“Compl.”) in the United States Court of Federal Claims, under 28 U.S.C. § 26724 and the Maryland Wage Payment and Collection Law,5 alleging: $49,605.60 for unpaid “vacation and sick pay;” $37,284.18 for “lost investment income from unpaid vacation pay;” $18,540.05 for “lost investment income from unpaid sick pay;” $1,809.36 for unreimbursed travel expenses; and $5,880.42 for “lost investment income from unreimbursed travel expenses.” Compl. at 1. The Complaint also seeks $5,000,000 for “physical and mental damages.” Compl. at 17-18.
On June 29, 2015, the Government filed.a Motion To Dismiss (“Gov’t Mot.”), pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), On January 20, 2016, Plaintiff filed a Response (“PI. Resp.”). On February 16, 2016, the Government filed a Reply (“Gov’t Reply”).
III. DISCUSSION.
A. Jurisdiction.
The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. § 1491, “to render judgment upon 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, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages .,. [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).
To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir. 2005) (en banc) (“The Tucker Act ... does not create a substantive cause of action; .. a plaintiff must identify a separate source of substantive law that creates the right to money damages.... [T]hat source must be ‘money-mandating.’ ”). Specifically, a plaintiff must demonstrate that the source of substantive law upon which he relies “can fairly be interpreted as mandating compensation by the Federal Government[.]” Testan, 424 U.S. at 400, 96 S.Ct. 948. And, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (“[O]nce the *173[trial] court’s subject matter jurisdiction [is] put in question ... [the plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.”).
B. Standard Of Review For Pro Se Litigants.
Pro se plaintiffs’ pleadings are held to a less stringent standard than those of litigants ■ represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers”). This court traditionally examines the record “to see if [a pro se ] plaintiff has a cause of action somewhere displayed.” Ruderer v. United States, 188 Ct.Cl. 456, 468, 412 F.2d 1285 (1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs complaint, the court “does not excuse [a pro se complaint’s] failures.” Henke v. United States, 60 F.3d 795, 799 (Fed.Cir.1995).
C. The Government’s June 29, 2015 Motion To Dismiss.
The court is cognizant of its obligation liberally to construe a pro se plaintiffs pleadings. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that a “pro se document is to be liberally construed”). But, pro se plaintiffs must still “comply with the applicable rules of procedural and substantive law.” Walsh v. United States, 3 Cl.Ct. 539, 541 (1983).
1. Whether The Court Has Jurisdiction To Adjudicate The Claims Alleged In The April 29, 2015 Complaint.
a.The Government’s Argument.
The Government argues that the court does not have jurisdiction to adjudicate the claims alleged in the April 29, 2015 Complaint regarding violations of 28 U.S.C. § 2672 and request for physical and mental damages, because the court does not have jurisdiction to adjudicate tort claims. Gov’t Mot. at 6, 8. In addition, the claim regarding violations of the Maryland Wage Payment and Collection Law should be dismissed, because they exceed the court’s subject matter jurisdiction. Gov’t Mot. at 6. As for Plaintiffs claims for unpaid sick leave and unreim-bursed travel expenses, they are barred by the statute of limitations, because the April 29, 2015 Complaint was filed twelve years after his claims for unpaid sick leave and unreimbursed travel expenses accrued in February 2003. Gov’t Mot. at 7. Finally, claims for loss of future profits or missed opportunities for investment growth are not recoverable in these circumstances. Gov’t Mot. at 8.
b.Plaintiffs Response.
Plaintiff responds that he did not intend to file this ease relying on Maryland law, but in a prior case the Government stated the proper venue was the United States Court of Federal Claims. PI. Resp. at 1-2 (citing Crane v. Naval Air Systems Command, 2:04-CV-363-FTM-29SPC (D. FI. 2005).6 In addition, Plaintiff argues that there is no statute of limitations on wage issues and cites 28 U.S.C. § 2674 for the proposition that Plaintiff is seeking damages that the court can award since they are not punitive damages, PI. Resp. at 2-3.
c.The Court’s Resolution.
i. Whether The Court Has Jurisdiction To Adjudicate Tort Claims.
The April 29, 2015 Complaint cites 28 U.S.C. § 2672 as authorizing the head of any Federal agency to “consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property ... caused by the negligent or wrongful act ... of any employee of the agency.” 28 U.S.C. § 2672. But, that statute concerns tort claims. It is well-established that the United States Court of Federal Claims does not have jurisdiction to adjudicate tort claims, because the Tucker Act expressly *174withdraws those claims from the scope of the court’s jurisdiction. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States ... in cases not sounding in tort.” (emphasis added)); see also Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (“[T]ort cases are outside the jurisdiction of the [United States] Court of Federal Claims.”). Likewise, the United States Court of Federal Claims cannot adjudicate a claim for “physical and mental damages,” that is also founded in tort. See Garner v. United States, 230 Ct.Cl. 941, 943 (1982) (citing 28 U.S.C. § 1491) (“[Rjelief for mental distress and psychological damage is founded in tort”).
For these reasons, the court must dismiss the tort claims alleged in the April 29, 2015 Complaint.
ii. Whether The Court Has Jurisdiction To Adjudicate State Law Claims.
The April 29, 2015 Complaint seeks relief under the Maryland Wage Payment and Collection Law. Compl. at 1. The Maryland Wage Payment and Collection Law is a part of the Maryland Labor and Employment state laws that set forth the rights by which Maryland employees receive wages. See Md.Code Ann., Lab. & Empl. § 3-507.2(a) (2008 Repl.Vol., 2010 Supp.). Claims founded on state law, however, exceed the scope of jurisdiction of the United States Court of Federal Claims. See Souders v. South Carolina Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed.Cir.2007) (“Claims founded on state law are also outside the scope of the limited jurisdiction of the [United States] Court of Federal Claims.”).
For these reasons, the court must dismiss the claim alleged under the Maryland Wage Payment and Collection Law requested by the April 29, 2015 Complaint.
iii. Whether The April 29, 2015 Complaint’s Claim For Unpaid Sick Leave And Unreimbursed Travel Are Barred By The Statute Of Limitations.
The April 29, 2015 Complaint alleges that Plaintiff is entitled to unpaid sick leave, as of February 28, 2003, and unreim-bursed travel expenses that occurred on February 3, 2003. Compl. at 16-17. Section 2501 of the Tucker Act provides that “[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is. filed within six years after such claim first accrues.” 28 U.S.C. § 2501. The United States Supreme Court has interpreted this statute as setting “jurisdictional limits” and is not subject to equitable tolling. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Accordingly, the court cannot adjudicate claims that accrued outside the limitations period, “even if jurisdiction were other wise proper.” Wilder v. United States, 277 Fed.Appx. 999, 1000 (Fed.Cir.2008) (affirming dismissal of payment as time-barred under Section 2501 where the plaintiffs claim accrued ten years before the Complaint was filed.). It is well-established that a claim “accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all events have occurred to fix the Government’s alleged liability.’” Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003) (en banc)). The claims for unpaid sick leave and unreim-bursed travel expenses in this case accrued in February 2003, when the events occurred that fixed the Government’s alleged liability.7 Compl. at 1, 9,16,17. The Complaint in this case was not filed until April 2015, over twelve years after the claims for unpaid sick leave and unreimbursed travel expenses accrued.
For these reasons, the court must dismiss Plaintiffs claims for unpaid sick leave and *175unpaid travel expenses alleged in the April 29, 2015 Complaint as barred by the six-year statute of limitations.8
iv. Whether The Court Has Jurisdiction To Award Lost Investment Income.
The April 29, 2015 Complaint seeks an award of lost investment income on his unpaid vacation time, sick leave, and un-reimbursed travel expenses. Compl. at 17-18. Plaintiff argues that the court has jurisdiction to make such an award, pursuant to 28 U.S.C. § 2674, because these are not punitive damages. Compl. at 17-18. However, consequential damages, damages for the loss of future profits, or “lost investment income” are not recoverable, because they are too remote or speculative to qualify as compensa-ble damages. See Solar Turbines, Inc. v. United States, 16 Cl.Ct. 304, 316 (1989) (“[Recoverable damages] ... do not include damages that remotely or consequently re-suited from the breach, ie., damages that were too remote or speculative to qualify as compensable damages.”); see also Olin Jones Sand Co. v. United States, 225 Ct.Cl. 741, 744 (1980)) (observing that future profits rely on speculative and remote factors and cannot be rewarded).
For these reasons, the court must dismiss the claims for lost investment income alleged in the April 29, 2015 Complaint.
IV. CONCLUSION.
For these reasons, the Government’s June 29, 2015, Motion to Dismiss is granted. See RCFC 12(b)(1). The Clerk of Court is directed to dismiss the April 29, 2015 Complaint.
IT IS SO ORDERED.
COURT EXHIBIT A
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*187COURT EXHIBIT B
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*191COURT EXHIBIT C
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. The relevant facts were derived from Plaintiff’s April 29, 2015 Complaint ("Compl”) and exhib*171its attached thereto ("Compl. Exs, 1-28").
, Some portions of the April 29, 2015 Complaint have paragraph numbers; others do not. For those portions not within an enumerated paragraph, the court refers to the page number.
. These sources include state and federal taxes, as shown on Navy Audit Summaries from 2003 through 2006. Compl. Ex. 4, at 2-7.
. Section 2672 of the Federal Tort Claims Act provides:
The head of each Federal agency or his desig-nee .,. may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for ... loss of property ... under circumstances where the United States, if a private person, would be liable to claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 2672.
. Maryland Wage Payment and Collection Law, in relevant part, provides:
Notwithstanding any remedy available under § 3-507 of this subtitle, if an employer fails to pay an employee in accordance with § 3-502 or § 3-505 of this subtitle, after 2 weeks have elapsed from the date on which the employer is required to have paid the wages, the employee may bring an action against the employer to recover the unpaid wages.
Md.Code Ann., Lab. & Empl. § 3-507.2(a) (2008 Repl. Vol., 2010 Supp.).
. On May 28, 2004, Plaintiff filed a Complaint in the County Court of the Twentieth Judicial Circuit In and For Lee County, Florida. Court Exhibit A. On July 6, 2004, that case was removed to the United States District Court for the Middle District of Florida. Court Exhibit B. On January 19, 2005, Plaintiff filed a Motion To Dismiss Without Prejudice. Court Exhibit C.
. The April 29, 2015 Complaint alleges that Plaintiff did not file a claim for unpaid sick leave at the agency level or at OPM, as follows:
Since Plaintiff • was unable to obtain vacation pay owed to him, Plaintiff did not bother to pursue a claim for sick leave owed to him, until now, Plaintiff felt adding the sick leave issue to his claim was pointless, since Employer/DFAS/DON/OPM could not get his vacation claim straight, Plaintiff seemed it would only serve to further confuse them and accomplish nothing.
Compl. at 9.
. Even if Plaintiff were entitled to unpaid sick leave and unreimbursed travel expenses as of the date of his retirement, on July 3, 2006, those claims would still be barred by the six-year statute of limitations, because he filed the April 29, 2015 Complaint almost nine years after Plaintiff's retirement. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218558/ | Motion to dismiss,'RCFC 12(b)(1); bankruptcy trustee bonds, 11 U.S.C. § 322; no contract based on statutes and regulations; no jurisdiction over criminal matters; Joshua v. United States; RICO, 18 U.S.C. § 1961 et seq.; no money-mandating laws identified.
MEMORANDUM OPINION AND ORDER
VICTOR J. WOLSKI, Judge
Pending before the Court is defendant’s motion to dismiss this case. For the reasons set forth below, the Court finds that it lacks jurisdiction over plaintiffs claims. Defendant’s motion to dismiss the case is GRANTED.
I. BACKGROUND
Plaintiff Steven J. Stanwyck1 was a debtor in three Chapter 7 bankruptcy proceedings. Comp, at 2 (citing In re Stanwyck, 2:92-bk-22475-SB (Bankr. C.D. Cal. 2002); In re Stanwyck, 2:02-bk-25398-SB (Bankr. C.D. Cal. 2008); In re Stanwyck, 2:07-bk-19183-PC (Bankr. C.D. Cal. 2013)). Plaintiffs complaint 2 alleges that the Clerk of the Court of the United States Bankruptcy Court for the Central District of California improperly closed his prior bankruptcy proceedings. Compl. at 2. The closures were improper, plaintiff contends, because the bankruptcy trustees were allegedly acting without proper trustee bonds and, thus, could not lawfully discharge the bankruptcy actions. Id. Upon a close review of plaintiffs complaint and its attachment, plaintiffs claim seems to be that all bankruptcy judges and trustees have, since 1992, failed to satisfy the bonding requirements under 11 U.S.C. § 322(a) and have thus improperly received compensation for their services. Compl. Ex. 1 at 2. Based on this, Mr. Stanwyck seeks at least *311$200,000,000 in damages and any other equitable relief deemed appropriate by this Court. See Compl. at 6; Pl.’s Resp. to Def.’s Mot. to Dismiss (Pl.’s Resp.) at 7.
In the complaint, plaintiff bases our court’s purported jurisdiction to hear the matter on the Fifth and Fourteenth Amendments to the United States Constitution; the Tucker Act (28 U.S.C. § 1491); unspecified contracts between plaintiff and the United States; various provisions under Chapters 3 and 7 of Title 11 of the U.S. Code; 28 U.S.C. §§ 159, 583, 586, and 1930; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 eí ser/.; and various Federal Rules of Bankruptcy Procedure. Compl. at 3-4. Specifically, plaintiff alleges that the judicial Administrative Office of the United States Courts has conspired with the U.S. Department of Justice’s Executive Office for U.S. Trustees (EOUST) to harm plaintiff. Compl. at 5. This allegedly constituted a RICO conspiracy that also involved violations of 18 U.S.C. §§ 1341, 1503, 152, 153, and 157(3). Compl. at 5.
The government moves to dismiss this case under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) for lack of subject-matter jurisdiction. Def.’s Mot. at 1. The government argues first, that this court lacks jurisdiction over plaintiffs criminal and civil RICO claims. Id. at 3-4. Second, the government contends that this court lacks jurisdiction over cases arising under bankruptcy laws and cannot review the decisions of a bankruptcy court or any other court. Id. at 5. Third, the government argues that this court lacks jurisdiction over plaintiffs claims under the Fifth and Fourteenth Amendments. Id. at 5-7. Defendant also claims that plaintiff has not identified how the provisions in title 28 create jurisdiction. Id. at 5-6. Fifth, the government states that there exists no evidence of “contracts between Stanwyck and the United States.” Id. at 5-7.
Alternatively, the government seeks to have this case dismissed under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted. Def.’s Mot. at 7-8. The government argues that plaintiff has failed to provide facts supporting his allegations to elevate his claims above the speculative level. Id. at 8.
Plaintiff, after a series of extensions due to health issues, responded and asserts that under 28 U.S.C. §§ 581-589a, he had an express or implied contract with the Executive Office for U.S. Trustees. Pl.’s Resp. at 3. Plaintiff cites several statutes to evidence the contractual obligations the EOUST allegedly owes him. Id. at 3-4. Mister Stanwyck clarifies that he is not bringing a claim under Title ll.3 Id. at 5. Plaintiff argues that the court has jurisdiction to hear his civil RICO claims, but seemingly concedes that his constitutional claims are beyond our jurisdiction. Id. at 6. Plaintiff also requests a variety of additional equitable relief, moves for leave to amend his complaint, requests that a conference be held by telephone, and, alternatively, moves for the transfer of his case to a U.S. district court. Id. at 7-8.4
The government replied and argues that no contract existed between the government and plaintiff and that while plaintiff listed several statutes, neither his complaint nor his response articulated how those statutes created a duty of the government. Def.’s Reply at 1-3. Defendant also argues that the court does not have jurisdiction over any civil RICO claims plaintiff seeks to bring. Id. at 4-5. The government also opposes the variety of other relief plaintiff sought. Id. at 5-7.
II. DISCUSSION
A. Legal Standards
Under RCFC 12(b)(1), this court must dismiss claims that do not fall within its subject-matter jurisdiction. When considering a motion to dismiss a case for lack of subject-matter jurisdiction, courts will accept as true all factual allegations the non-movant made and draw all reasonable inferences in *312the light most favorable to that party. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pixton v. B&B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter jurisdiction this court views “the alleged facts in the complaint as true, and if the facts reveal any reasonable basis upon which the non-movant may prevail, dismissal is inappropriate”); CBY Design; Builders v. United States, 105 Fed.Cl. 303, 325 (2012).
While a pro se plaintiffs filings are to be liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), this lenient standard cannot save claims which are outside this court’s jurisdiction from being dismissed. See, e.g., Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court’s jurisdiction bears the burden of establishing it and must ultimately do so by a preponderance of the evidence. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
B. Analysis
Even under a most liberal interpretation of the complaint, it fails to embrace matters falling under this court’s subject-matter jurisdiction. It appears that plaintiff misconstrues the jurisdiction Congress has given our court. Our general jurisdictional statute, 28 U.S.C. § 1491(a)(1), requires the presence of either a properly-pled contract with the federal government or the identification of a money-mandating law which was allegedly violated by the federal government.5 See United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Neither predicate for our jurisdiction has been properly alleged by Mr. Stan-wyck.
1. The Court Lacks Subject-Matter Jurisdiction over Plaintiffs Purported Contract Claims
Plaintiff is alleging that the trustees in his three closed Chapter 7 bankruptcies never filed the bond required under 11 U.S.C. § 322(b). Compl. at 2. Because the trustees were not bonded, Mr. Stanwyck contends they had neither power nor standing to oversee and close his bankruptcies. Id. As clarified in plaintiffs' response, Mr. Stanwyck is alleging that he is suing based on a contract with the U.S. Department of Justice.6 Pl.’s Resp. at 5. Plaintiff identifies a variety of statutes, regulations, provisions, and handbooks that allegedly created duties that the government, including the EOUST, owed to him, which it did not fulfill. Id. at 3.7
Plaintiff has not identified an express written contract he has entered into with the United States government. As a consequence, in order to properly base a cause of action on a contract with the United States government, plaintiff must allege (1) the mutual intent to contract; (2) an exchange of consideration; (3) an unambiguous offer and acceptance; and (4) the actual authority possessed by the government representative who made the contract. See Lewis v. United States, 70 F.3d 597, 600 (Fed. Cir. 1995). When a plaintiff fails to substantially allege the existence of an implied-in-fact contract, our court lacks subject-matter jurisdiction over the case. Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1344 *313(Fed. Cir. 2008). Insubstantial allegations concerning the elements of a contract do not establish a contract claim within our jurisdiction. See Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 110 (2012) (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)). Plaintiff has failed to substantially allege any of the four elements of an implied-in-fact contract with the government.
Mister Stanwyck’s citations to various statutes and regulations are unavailing. The government is correct that there is a presumption that “a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” See Nat'l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465-66, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985) (quoting Dodge v. Board of Education, 302 U.S. 74, 79, 58 S.Ct. 98, 82 L.Ed. 57 (1937)). Evaluating whether a plaintiff has overcome this presumption begins with examining the language of the statute. Id. Absent an adequate expression of actual intent, a court “will not lightly construe that which is undoubtedly a scheme of public regulation to be, in addition, a private contract to which the state is a party.” Id. at 466-67, 105 S.Ct. 1441. “The rule ... that jurisdiction under the Tucker Act cannot be premised on the asserted violation of regulations that specifically do not authorize awards of money damages — cannot be avoided simply by characterizing the applicable statute or regulation as creating an implied contract.” Baker v. United States, 50 Fed.Cl. 483, 489 (2001).
Plaintiff has not identified any language contained in any of the statutes, regulations, or other materials that he cites that even suggests that a contract is formed between the government and debtors in bankruptcy. Nor does a review of the statutes listed by Mr. Stanwyck, see Pl.’s Resp. at 3, reveal any language that supports the creation of such a contract. Plaintiffs theory seems to be that the regulation of the conduct of bankruptcy trustees amounts to a contractual duty promised to debtors in return for the payment of bankruptcy fees. But there is no textual support for such a notion, as the cited statutes and regulations do not make reference to any contractual intentions and do not mandate payment of money for any purported violations.8 Plaintiff has failed to identify a substantial basis to support any element of an implied-in-fact contract, much less all of them. Thus, the complaint does not contain a breach of contract claim against the United States falling within our subject-matter jurisdiction.
2. The Court Lacks Subject-Matter Jurisdiction over Civil RICO Claims or Criminal Charses
Plaintiff alleges that the United States and Chapter 7 trustees are jointly liable under the Racketeer Influenced and Corrupt Organizations Act (RICO), see Compl. at 5 (citing 18 U.S.C. §§ 1961(1)(C), 1961(4), 1961(5), and 1962(d)), and other provisions of the criminal code, id. (citing 18 U.S.C. §§ 152, 153, 157(3), 1341, and 1503), for harming Mr. Stanwyck in his business affairs. The government moved to dismiss this claim as our court cannot “adjudicate any claims whatsoever under the federal criminal code.” Def.’s Mot. at 4 (citing Meschkow v. United States, 109 Fed.Cl. 637, 646 (2013) (citing Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994))).
In his response, plaintiff asserts that our court has jurisdiction over his civil RICO claims and argues that Joshua v. United States, a Federal Circuit decision relied upon by our court in the opinion cited by the government, lacks any supporting authority for its proposition that our court cannot hear criminal matters. Pl.’s Resp. at 6. To be sure, the only discussion about criminal code matters in Joshua is contained in a quotation from the order issued by our court, see 17 F.3d at 379, and the corresponding holding of the Federal Circuit was merely that the *314“complaint did not identify any substantive right, founded upon either a money mandating statute or the Constitution, which might form the basis for his claim,” id. at 380. But the principle that we do not exercise jurisdiction over criminal claims has been universally and thoroughly well-established by decisions of our court, never once disturbed on appeal; See, e.g., Allen v. United States, 125 Fed.Cl. 138, 141 (2016); Emerson v. United States, 123 Fed.Cl. 126, 129-30 (2015); Hover v. United States, 113 Fed.Cl. 295, 296 (2013); Cooper v. United States, 104 Fed.Cl. 306, 312 (2012); Mendes v. United States, 88 Fed.Cl. 759, 762 (2009); Dumont v. United States, 85 Fed.Cl. 425, 430 (2009), aff'd, 345 Fed.Appx. 586, 593 (Fed. Cir. 2009); McCullough v. United States, 76 Fed.Cl. 1, 4 (2006); see also Kania v. United States, 650 F.2d 264, 268 (Cl. Ct. 1981) (“[T]he role of the judiciary in the high function of enforcing and policing the criminal law is assigned to the courts of general jurisdiction and not to this court.”). This persuasive authority includes criminal claims arising under RICO. See Matthews v. United States, 72 Fed.Cl. 274, 282 (2006) (“Claims under ... RICO are criminal claims. This court lacks jurisdiction to adjudicate criminal claims.”); Hufford v. United States, 87 Fed.Cl. 696, 702 (2009); Dumont, 85 Fed.Cl. at 430.
Perhaps this point has been considered too obvious to explain. But Congress, through the Tucker Act, has not placed every violation of federal law within our jurisdiction. See 28 U.S.C. § 1491(a). As the Supreme Court has explained:
Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States, see United States v. King, 395 U.S. 1, 2-3 [89 S.Ct. 1501, 23 L.Ed.2d 52] (1969), and the claimant must demonstrate that the source of substantive law he relies upon “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’” United States v. Testan, [424 U.S. 392, 400 [96 S.Ct. 948, 47 L.Ed.2d 114] (1976) ], quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967).
Mitchell, 463 U.S. at 216-17, 103 S.Ct. 2961 (footnotes omitted). A money-mandating law or regulation is one “that either entitles the plaintiff to a payment of money from the government, or places a duty upon the government, the breach of which gives the plaintiff a money damages remedy.” Contreras v. United States, 64 Fed.Cl. 583, 588 (2005), aff'd, 168 Fed.Appx. 938 (Fed. Cir. 2006). A further limitation on our jurisdiction is that the cases we have power to hear must be ones “not sounding in tort.” 28 U.S.C. § 1491(a).
Thus, for a statutory violation to be the basis for a claim in our court, the statute must require that the United States government pay money to an individual for non-tortious conduct. The prosecution of a federal crime satisfies none of these conditions. Violations do not result in money being paid by the government, but rather in fines being paid to the government. See, e. g., 18 U.S.C. §§ 152, 153(a), 157, 1341, 1503, 1963(a). The United States is not the defendant, but instead is the only party that may bring the action. See Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (“Generally, a private citizen has no authority to initiate a-federal criminal prosecution,”); 28 U.S.C. § 547(1) (requiring the U.S. Attorney to “prosecute for all offenses against the United Spates”). And criminal conduct, such as the fraud and conspiracy alleged by plaintiff, is typically tortious in nature. See Hornback v. United States, 56 Fed.Cl. 359, 365 (2003), aff'd, 91 Fed.Appx. 679, 683 (Fed. Cir. 2004); Cottrell v. United States, 42 Fed.Cl. 144, 149 (1998).9 Accordingly, criminal laws would not be the source of claims that may be brought in our court.
*315It is theoretically possible, one supposes, that Congress could place in Title 18 a civil law provision mandating money payments by the United States government to a party, specifying that a violation would not be considered a tort for purposes of the Tucker Act. Perhaps plaintiff suggests this is the ease with his RICO claims, which he now recasts as civil claims. The problem is that, far from creating a money-mandate that is payable in our court, RICO instead provides for a civil action within the exclusive federal jurisdiction of U.S. district courts, and not this court. See 18 U.S.C. § 1964(c); Tempelman v. United, States, No. 06-414T, 2007 WL 571110, 2007U.S. Claims LEXIS 452, at *11-12 (Jan. 9, 2007).10
Our court lacks jurisdiction over violations of criminal law, and plaintiff has not identified any civil statutes mandating the payment of money by the federal government. Accordingly, plaintiff’s claims based on RICO and other criminal code provisions are not within our subject-matter jurisdiction.
3, The Constitutional Claims
In the complaint, Mr. Stanwyck alleges that our jurisdiction over his claims may be based on the Fifth and Fourteenth Amendments. Compl. at 3. After the government, in moving to dismiss the case, correctly noted that the Federal Circuit has held that our court lacks jurisdiction over due process or equal protection claims brought under these provisions, see Def.’s Mot. at 5 (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)), plaintiff sensibly recognized that these claims “are well objected to.” Pl.’s Resp. at 6. It is clearly established that the Fifth Amendment’s Due Process Clause (including any equal protection component) is not money-mandating. See Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013).11 And the Fourteenth Amendment is neither money-mandating nor a limitation on the federal government. See id.; Coleman v. United States, No. 13-431C, 2014 WL 949984, at *3 (Fed. Cl. Mar. 7, 2014); U.S. Const. amend. XIV, § 1.
Insofar as plaintiff is attempting to state a claim under the Takings Clause of the Fifth Amendment, the government accurately identified Federal Circuit precedent that places scrutiny of the actions of bankruptcy courts beyond our jurisdiction. Def.’s Mot. at 6 (citing Allustiarte v. United States, 256 F.3d 1349, 1351-52 (Fed. Cir. 2001)). Because plaintiff maintains that the actions of the relevánt individuals were illegal, even criminal, the jurisdictional requirement that, to be the basis of a takings claim, these actions must be authorized and not ultra vires, would also require their dismissal. See id. at 7 (citing Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993)); see also Bailey v. United States, 78 Fed.Cl. 239, 253-56 (2007) (explaining the doctrine). On this point, Mr. Stanwyck concedes that he “has not ple[d] that the taking was valid,” but adds that “after discovery, he may be able to properly plead this claim.” Pl.’s Resp. at 6. But there will be no discovery, as plaintiff has not alleged a claim that comes within our court’s subject-matter jurisdiction.
J. Other Motions
Plaintiff also requests leave to amend his complaint based on his health problems that had already resulted in several extensions of the time in which to file his response. Pl.’s Resp. at 8. Mister Stanwyck, however, does not identify any additional factual allegations or legal authority that would place his matter within our court’s jurisdiction. Even though amendments of complaints are “freely” permitted “when justice so requires,” RCFC 15(a)(2), plaintiff has given the Court no reason to believe that his contemplated amendments would not be futile. Thus, plaintiffs motion to amend his complaint is DENIED. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
*316Mister Stanwyck also requests a 28 U.S.C. § 1631 transfer of his case to the United States District Court for the Central District of California. Pl.’s Resp. at 8. Under this provision, should the “court findf ] that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought.” 28 U.S.C. § 1631. The Court does not find that plaintiff could have brought his claims in the Central District of California. Plaintiff has failed to allege a contract claim. Plaintiff cannot prosecute his claims of criminal law violations. See 28 U.S.C. § 647. And both the district court and the Ninth Circuit have ruled that civil RICO claims cannot be brought against the government. See Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir, 1996); Graf v. Peoples, No. CV 07-4731-VAP (E), 2008 WL 4189667, at *4 (C.D. Cal., Sept. 4, 2008). Thus, plaintiffs motion to transfer the case is DENIED. See Spencer v. United States, 98 Fed.Cl. 349, 369 (2011).
III. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to dismiss this case for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(1). The Clerk shall close the case.
IT IS SO ORDERED.
. Although Mr. Stanwyck is proceeding in this case pro se, he was a member of tire California bar until his disbarment on February 11, 2012. See Attorney Profile, Steven Jay Stanwyck— #48728, The State Bar of California, http:// members.calbar.ca.gov/fal/Member/Detail/48728 (last visited July 5, 2016).
. Plaintiff purports to sue in his name and in the name of the United States, pursuant to Federal Rule of Bankruptcy Procedure (FRBP) 2010(b). While FRBP 2010(b) allows a proceeding to be brought "by any party in interest in the name of the United States,” such a proceeding on bond is only permitted within bankruptcy and district cotuts. See 28 U.S.C. § 1334(a); Capelouto v. United States, 99 Fed.Cl. 682, 691 (2011). Accordingly, the plaintiff in this matter is just Mr. Stanwyck and not "Steven Jay Stanwyck in the name of the United States.”
. As a consequence, the Court need not address defendant’s arguments regarding our jurisdiction over bankruptcy proceedings.
. The Court has determined that no hearing is necessary in this matter, and thus Mr. Stan-wyck's request that a hearing be held by telephone is DENIED.
.Plaintiff's complaint alleges improper action by "unnamed, non-government, co-conspirators, such as the fraudulently claiming power and standing ‘chapter 7' trustees." Compl. at 5. Because the subject-matter jurisdiction of this court is limited to suits against the United States, claims based upon wrongdoing by private actors must be dismissed pursuant to RCFC 12(b)(1). Capelouto v. United States, 99 Fed.Cl. 682, 688 (2011) (citing United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (noting our predecessor court was "without jurisdiction of any suit brought against private parties")). Any claim directed against individuals is dismissed.
. The government correctly notes in its reply that plaintiffs complaint did not clearly indicate such a claim. Def.’s Reply at 1-2.
. These include 28 U.S.C. §§ 583, 586, 589a, 589b, 1737, and 1930. Pl.’s Resp. at 3. The Court has reviewed these statutes and finds that none of them are money-mandating.
. Indeed, it appears that the proper response to the failure of a panel trustee or standing trustee to be properly bonded is that the United States trustee would suspend or terminate the assignment of future cases to the trustee. 28 C.F.R. § 58.6(a)(9). If that happens, the creditors may elect a person to fill that vacancy, and while that election is pending, the United States trustee may appoint an interim trustee. 11 U.S.C. § 703(a)-(b); 11 U.S.C. § 1104(d).
. There are, of course, the additional difficulties of construing federal officials' criminal offenses against the United States as somehow constituting authorized action that may be imputed to the United States, and implying a private cause of action in the face of the specified remedies of imprisonment and fine, see Alexander v. Sandoval, 532 U.S. 275, 290, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).
. An additional problem is the notion that the United States government can be civilly liable for allegedly having committed a crime against itself. See Wolf v. United States, 127 Fed.Appx. 499, 500-01 (Fed. Cir. 2005).
. Only in the limited circumstances of an alleged illegal exaction may a due process violation come within the jurisdiction of this court. See Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996); Coleman v. United States, No. 13-431C, 2014 WL 949984, at *3 (Fed. Cl. Mar. 7, 2014). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218559/ | Motion to Dismiss; Statute of Limitations; 28 U.S.C. § 2501; Breach of Contract; Attorney’s Fees; Indemnity Contract; State Court Proceedings.
OPINION
HORN, j.
FINDINGS OF FACT
In the two above-captioned eases, plaintiffs Lake Borgne Basin Levee District (Lake Borgne) and St. Bernard Parish Government (St. Bernard) allege breach of contract by, or, in the alternative, the existence of an indemnity agreement with, defendant United States, acting through the United States Army Corps of Engineers (Army Corps). Plaintiff St. Bernard is a political subdivision of the State of Louisiana, organized and existing under the laws of the State of Louisiana and with its principal place of business in St. Bernard Parish, Louisiana. Plaintiff Lake Borgne is a political subdivision of the State of Louisiana charged with the duty of overseeing and maintaining flood protection authorities in St. Bernard Parish.
The alleged contract at issue in the above captioned cases concerns the repair of certain levees (the LPV Levees) in St. Bernard Parish that are part of the Hurricane/Shore Protection Project for Lake Pontchartrain, *324Louisiana and Vicinity (the HSPP or the HSP Project), which levees were damaged by Hurricane Katrina. The construction of the HSPP was authorized by the Flood Control Act of 1965, based on the recommendations of the Secretary of the Army. See Pub. L. No. 89-298 (Oct. 27, 1965). Subsequent to the passage of the Flood Control Act of 1965, on August 16, 1966, St. Bernard and Lake Borgne signed an “Act of Assurance” (the 1966 Act of Assurance) in which the plaintiffs “assurefd] the Secretary of the Army of the United States” that they were “authorized and empowered to comply with all the required conditions of local cooperation” for the portions of the HSPP located in St. Bernard Parish, In particular, the plaintiffs stated that they would “jointly and severally, without cost to the United States ... [provide all lands, easements, and rights-of-way, including borrow and spoil-disposal areas necessary for construction, operation, and maintenance of the project.” The 1966 Act of Assurance signed by both St. Bernard and Lake Borgne states that it was executed in accordance with two separate resolutions adopted by St. Bernard and Lake Borgne on August 16,1966 and August 15,1966, respectively. In both the August 16, 1966 and August 15,1966 resolutions, plaintiffs state that their respective executives are “authorized, empowered and directed ... to acquire and make available, without cost to the United States, all lands, easements, and rights-of-way for that portion of the [HSP] project located in the Parish of St. Bernard.”
On April 11, 1967, June 6, 1967, and May 13, 1969, Lake Borgne adopted three additional resolutions appropriating interests in lands the Army Corps had requested as necessary for construction of the LPV Levees. In the first resolution, adopted April 11, 1967, Lake Borgne “appropriated” certain “levee rights of way and temporary soil easements for construction” of the LPV Levees requested by the Army Corps. The first resolution stated that the temporary spoil easement was to be used as a “temporary pond-ing area.” In the second resolution, adopted June 6,1967, Lake Borgne “appropriated” an “additional landside right of way for levy purposes” requested by the Army Corps. In the third resolution, adopted May 13, 1969, Lake Borgne “appropriated” certain “levee rights of way and temporary spoil easements for construction” of the LPV Levees requested by the Army Corps. Each of the resolutions also granted a right of entry to the Army Corps to the property appropriated and stated that the appropriations were made “without cost to the United States.”
On February 15, 1977, St. Bernard, Lake Borgne, and the Army Corps jointly executed an “Agreement between the United States of America and the Board of Commissioners of the Lake Borgne Basin Levee District and the St. Bernard Parish Police Jury for the Lake Pontehartrain and Vicinity, Louisiana Project.” (The 1977 Agreement), The 1977 Agreement was subsequently approved by the Secretary of the Army on December 7, 1977. The 1977 Agreement stated that St. Bernard and Lake Borgne “agree that they will, without cost to the United States ... [p]rovide all lands, easements, and rights-of-way, including borrow and spoil-disposal areas necessary for construction, operation, and maintenance of the [HSP] project.” The 1977 Agreement also stated that two additional resolutions, one adopted by St. Bernard on January 13, 1976 and the other adopted by Lake Borgne on April 20, 1976, were “annexed hereto and made a part hereof’ the 1977 Agreement. In the January 13, 1976 and April 20, 1976 resolutions, both of which were attached to the 1977 Agreement, St. Bernard and Lake Borgne each stated, in identical language, that it “agrees that it will, without cost to the United States ... [provide all lands, easements, and rights-of-way, including borrow and spoil-disposal areas necessary for construction, operation, and maintenance of the [HSP] project.”
On August 29, 2005, Hurricane Katrina struck the Gulf Coast, resulting in considerable damage to the LPV Levees in St. Bernard. On September 1, 2005, Henry Rodriguez, Jr., President of St. Bernard, issued an Executive Order exercising his emergency powers under the Louisiana Homeland Security. and Emergency Assistance and Disaster Act, La. Stat. Ann. § 29:721, et seq. Among the powers the Louisiana Homeland Security and Emergency Assistance and Disaster Act granted to parish presidents such as Mr. *325Rodriguez was the power to, “[s]ubject to any applicable requirements for compensation, commandeer or utilize any private property if he finds this necessary to cope with the local disaster.” La. Rev. Stat, Ann. 29:727(F)(4) (2015).1
On September 19, 2005, the Army Corps sent a letter to Lake Borgne proposing to perform repairs to a portion of the LPV Levees located in St. Bernard. The September 19, 2005 letter stated:
This LPV [Levee] repair work will require considerable earthen borrow material. A potential source for this material has been identified as a 200 foot-wide strip of land along the levee between the Bayou Bien-venue Control Structure and the southeast comer of the hurricane protection levee (Station 1007+91). This area which is described as a 300-ft. long strip of land measured from the edge of the existing levee right-of-way is shown on the enclosed map entitled “St. Bernard Borrow Area.” The top five (5) feet of this material will be removed and wasted as it is unsuitable for levee construction. The material will, be obtained by excavating the material to a depth of no more than an additional 15 feet.
The September 19,2005 letter continued with a request for a right of entry to the area it had identified, stating:
By this letter we are requesting your right of entry, including ingress and egress, to the 300-feet by 200-feet borrow area, as shown on the map entitled, “St. Bernard Borrow Area,” and along the hurricane protection levee from station 270 + 00 (Highway 510 Bridge) to station 1137+58 (Highway 46 crossing) to perform repairs to the portion of the levee located between stations 390 + 00 and 1054 + 00. This right of entry is required as soon as possible, but no later than September 21, 2005 and should remain valid until completion of construction.
The September 19, 2005 letter included a copy of an Executive Order passed by Jefferson Parish, Louisiana “granting the Parish President authority to commander or utilize private property during a'local disaster without permission of the property owner” and requested that, “[s]hould St. Bernard Parish find it necessary to pass a similar resolution in order to accommodate this request,” Lake Borgne should include a copy of the resolution with its right of entry.
Pursuant to this request by the Army Corps, on September 29, 2005, St. Bernard President Rodriguez issued an order entitled “Commandeering Property and Granting Irrevocable Right of Entry for Borrow, Access, and Construction (Repair and Rehabilitation) of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee, St. Bernard Parish” (the Commandeering Order), in which he used his emergency powers, in accordance with his September 1, 2005 Executive Order, to. “commandeer the use of certain private immovable property” the same property requested in the Army Corps’ September 19, 2005 letter, in order “to obtain borrow materials, gain access, and construct (repair and rehabilitate) the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee in St. Bernard Parish.” The Commandeering Order further “tender[ed] and grant[ed] an irrevocable right of entry to these lands to the Lake Borgne Basin Levee District,” and stated that Lake Borgne would follow suit by tendering an “Authorization for Entry” to the Army Corps to enter these properties “to repair and rehabilitate said levee.”
On September 30, 2005, Lake Borgne issued an “AUTHORIZATION FOR ENTRY FOR BORROW, ACCESS, and CONSTRUCTION (Repair and Rehabilitation)” (the Authorization for Entry) (capitalization in original), which stated that Lake Borgne had “acquired the real property interests required by the Department of the Army as requested via letter dated September 19, 2005” and that Lake Borgne was “otherwise vested with sufficient title and interest in lands, to support repair and rehabilitation of *326the Lake Ponchartrain Louisiana and Vicinity, Hurricane Protection Levee in its jurisdiction.” Lake Borgne further “authorize[d] the Department of the Army, its agents, employees, and contractors to enter upon these lands to obtain borrow, access, and construct (repair and rehabilitate) said levee” according to the Army Corps’ official plans.
On October 2, 2005, Lake Borgne, St. Bernard, and the Army Corps executed a “Cooperation Agreement,” which established the parties’ respective rights and obligations pertaining to the repair and rehabilitation of the LPV Levees. The October 2, 2005 Cooperation Agreement required plaintiffs to “provide all lands, easements and rights-of-way, including suitable borrow and dredged or excavated material disposal areas ... determined by the Government to be necessary for construction, operation, and maintenance of the Rehabilitation Effort and the HSPP.” On October 4, 2005, however, St. Bernard President Rodriguez submitted a “written request for rehabilitation assistance” to the Army Corps, requesting that the federal government assume responsibility for the “acquisition or funding ... of newly-acquired lands, easements, rights-of-way, relocations, and disposal areas”2 commandeered by St. Bernard. The following day, on October 5, 2005, Lake Borgne followed suit with a nearly identical request. Subsequent to these requests for rehabilitation assistance, on October 7, 2005, Steven L. Stockton, the Army Corps’ Deputy Director of Civil Works, submitted a formal memorandum to the Assistant Secretary of the Army for Civil Works recommending certain one-time policy deviations from Army Corps policies with respect to the post-Katrina rehabilitation efforts in New Orleans. On October 10, 2005, Mr. Stockton issued a Memorandum for Record stating that John Paul Woodley, the Assistant Secretary of the Army for Civil Works, had given verbal approval for certain policy deviations, including a waiver from the Army Corps’ general policy requiring that local project sponsors such as plaintiffs provide all lands, easements, rights of way and disposal or borrow areas at no cost to the federal government.
Following the approval of these deviations, on October 17, 2005, Lake Borgne, St. Bernard, and the Army Corps executed “Amendment No. 1, Cooperation Agreement” (the Amended Cooperation Agreement), which rescinded and replaced the October 2, 2005 Cooperation Agreement. The, Amended Cooperation Agreement begins with an ac-knowledgement that the HSPP was built by the federal government pursuant to the Flood Control Act of 1965, and is “governed by the Agreements of Local Assurance dated August 16, 1966 and February 15, 1977 ... which remain in full effect.” The Amended Cooperation Agreement refers to the Department of the Army as the “Government,” as represented by the Army Corps, and St. Bernard and Lake Borgne as the “Public Sponsors.” The obligations of the parties are spelled out in Article II of the Amended Cooperation Agreement, titled “OBLIGATIONS OF THE GOVERNMENT AND PUBLIC SPONSOR.” (capitalization in original). Article II.B of the Amended Cooperation Agreement states:
As further specified in Article III, the Public Sponsors shall provide right of entry to all lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas, determined by the Government to be necessary for construction, operation, and maintenance of the Rehabilitation Effort[3] and the HSPP.
Article II.B.l states, in relevant part:
As further specified in Article III, after receiving the Public Sponsors’ right of en*327try to the lands, easements, and rights of way, including suitable borrow and dredged or excavated material disposal areas (LERD) that are described in Article III.A.2. and III.A.3. of this Amendment, the Government, subject to the availability of appropriations, shall identify and pay just compensation to the owners of a com-pensable interest in the LERD described in Article III.A.2 of this Amendment.
Article III of the Amended Cooperation Agreement specifies the process to be used by the parties in fulfilling then.’ obligations related to LERD under Article II, stating, in relevant part:
A. The Government shall provide the Public Sponsors with a description of the anticipated real estate requirements and relocations for the Rehabilitation Effort. Thereafter, the Public Sponsors shall, at no cost to the Government provide right of entry, to all lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas (hereinafter LERD) as may be determined by the Government in that description, or in any subsequent description, to be necessary for the construction, operation, and maintenance of the Project and the Rehabilitation Effort, in the manner hereinafter discussed.
1. The. Public Sponsors shall provide right of entry to all LERD that they own, claim or control (hereinafter Public Sponsor LERD) in a manner that is free and clear of any liens, defects of title, or encumbrances, including the release or subordination to the Rehabilitation Effort of any third party interests, as determined by the Government to be necessary for the construction, operation and maintenance of the Rehabilitation Effort;
2. The Public Sponsors shall use their best efforts to provide right of entry to LERD that any other non-Federal governmental entity owns, claims, or controls (hereinafter Other Non-Federal Governmental LERD) in a manner that is free and clear of any liens, detects of title, or encumbrances, including the release or subordination to the Rehabilitation Effort of any third party interests within such LERD as determined by the Government to be necessary for the construction, operation and maintenance of the Rehabilitation Effort; and
3.The Public Sponsors shall provide right of entry to all other LERD not owned, claimed, or controlled by the Public Sponsors or Other Non-Federal Governmental Entities (hereinafter Private LERD as follows):
a. The Public Sponsors shall secure or cause to be secured an executive commandeering order or orders from the President of St. Bernard Parish, Louisiana, which said order or orders shall commandeer Private LERD, in accordance with powers set forth in La. R.S. 29:721, et seq., including all privately owned third party interests, as determined by the Government to be necessary for the construction, operation and maintenance of the Rehabilitation Effort;
b. In the event that the commandeering official is not the presiding official of the Public Sponsors, the Public Sponsors must secure a right of entry from the commandeering official to the Private LERD described in the Commandeering Order or Orders; and
c. The Public Sponsors shall tender a right of entry to the Government for the Private LERD.
B. The Government shall perform such relocations as it determines to be necessary for the construction, operation, and maintenance of the Rehabilitation *328Effort. In addition, the Government in the name of the Public Sponsors, identify [sic] and provide [sic] just compensation to the owners of. a compen-sable interest in the Private LERD and shall acquire the requisite interests in the Non-Federal Governmental LERD to which the Public Sponsors, despite their its [sic] best efforts, was [sic] unable to obtain a free and unencumbered right of entry....
1. The Government shall obtain a deed or servitude agreement, as appropriate, in the name of the Public Sponsors, for those interests described in the Commandeering Order or Orders referenced in Paragraph A.3.a. of this Article....
2. Where the Government is unable to obtain free and unencumbered title on the behalf of the Public Sponsors or to reach an agreement with the interest owners in the Private and Other Non-Federal Governmental LERD, the Government shall obtain such interests, in the name of the United States of America, through the exercise of its eminent domain authority.
The final provision of the Amended Cooperation Agreement relevant to the above-captioned cases is Article V which states in full: “The Public Sponsors shall not be entitled to receive a credit or reimbursement for any costs incurred by the Public Sponsors hereunder.”
Plaintiffs in the above-captioned cases allege that, among the property interests that were commandeered by St. Bernard in its September 29, 2005 Commandeering Order, and for which Lake Borgne subsequently provided a right of entry to the Army Corps in its September 30, 2005 Authorization for Entry, were properties owned by Borgne-mouth Realty Company, Ltd. (Borgnemouth) and Olivier Plantation, LLC, Park Investments, Ltd., and Morning Park, Inc. (the Olivier Plantation landowners). Plaintiffs further allege that “[s]oon after the [Army] Corps was granted access to the property identified in the Commandeering Order, the [Army] Corps, through its contractors, excavated borrow material” from the Borgne-mouth and the Olivier Plantation landowners’ properties. The plaintiffs allege:
The Corps solely determined the borrow areas required to repair the levees and requested a right of entry to this specific property. The Corps prepared the plans and specifications governing the project, and neither St. Bernard nor the [Lake Borgne Basin] Levee District were involved in the process. The Corps made all operational decisions on the project. St. Bernard and the Levee District did not excavate or participate in the excavation of borrow material....
On May 18, 2007, the Olivier Plantation landowners filed a complaint against St. Bernard and Lake Borgne in Louisiana state court, demanding just compensation for 590,-086 cubic yards of borrow material allegedly removed by the Army Corps from their property pursuant to St. Bernard’s September 29, 2005 Commandeering Order and Lake Borgne’s September 30, 2005 Authorization for Entry. See Olivier Plantation, LLC, Park Invs., Ltd., and Morning Park, Inc. v. Parish of St. Bernard, Lake Borgne Basin Levee District, 34th Judicial District Court, St. Bernard Parish, Dkt. 109-272. (May 18, 2007) (the Olivier Plantation case). On May 18, 2009, St. Bernard filed a third-party demand against the Army Corps, and on May 19, 2009, the case was removed to the United States District Court for the Eastern District of Louisiana (the District Court) at the request of the Army Corps. On September 23, 2010, the District Court severed and remanded to the state court the Olivier Plantation landowners’ claims against St. Bernard and Lake Borgne on the grounds that it lacked jurisdiction to hear them. See Olivier Plantation, LLC v. St. Bernard Parish, 744 F. Supp. 2d 575, 584, 589-90 (E.D. La. 2010). The District Court also dismissed and declined to transfer to the United States Court of Federal Claims St. Bernard’s third-party claims against the Army Corps, on the grounds that, although the Court of Federal Claims would be the proper venue, the claims were premature and ultimately depended on the resolution of the Olivier Plantation landowners’ suits against St. Bernard and Lake *329Borgne. See id. at 588-89, Thereafter, the Louisiana state trial court, in an amended judgment dated March 20, 2012, found St. Bernard and Lake Borgne liable, jointly and severally, for compensation in the amount of $2,449,930.00,4 and, on November 9, 2012, awarded the Olivier Plantation landowners an additional $832,318.65 in attorney's fees and costs. The Louisiana Court of Appeals affirmed the judgment on October 30, 2014. See Olivier Plantation, L.L.C. v. Parish of St. Bernard, 151 So. 3d 965 (La. Ct. App. 2014). On February 27, 2015, the Louisiana Supreme Court denied St. Bernard and Lake Borgne’s writs for review. See Olivier Plantation, L.L.C. v. Parish of St. Bernard, 160 So. 3d 173 (La. 2015). Plaintiffs allege that, on March 23, 2015, the Olivier Plantation landowners petitioned the Louisiana state trial court for a writ of mandamus, seeking to compel St. Bernard and Lake Borgne to satisfy the judgment against them. Plaintiffs further allege that St. Bernard and Lake Borgne have paid $50,500.00 each to the Olivier Plantation landowners “in return for a forbearance agreement whereby the Landowners have agreed to delay their mandamus proceedings against Plaintiffs” until the resolution of case number 15-518C filed in this court.
A similar suit was filed against St. Bernard and Lake Borgne by Borgnemouth in Louisiana state court on November 13, 2008, seeking compensation for 248,296 cubic yards of borrow material allegedly removed from its property by the Army Corps pursuant to St. Bernard’s September 29, 2005 Commandeering Order and the Lake Borgne’s September 30, 2005 Authorization for Entry. On June 20, 2013,5 the Louisiana state trial court entered a judgment holding St. Bernard and Lake Borgne liable, jointly and severally, for compensation in the amount of $1,241,480.00, plus attorney’s fees of $335,370.00, interest, and court costs. See Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 34th Judicial District Court, St. Bernard Parish, Dkt. 112— 833 (Nov. 13, 2008) (the Borgnemouth case). The judgment was affirmed by the Louisiana Court of Appeals on May 21, 2014. See Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 141 So.3d 891 (La. Ct. App. 2014). On September 26, 2014, the Louisiana Supreme Court denied St. Bernard and Lake Borgne’s writs for review. See Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 149 So.3d 266 (La. 2014). Plaintiffs allege that, on November 7, 2014, Borgnemouth petitioned the Louisiana state trial court for a writ of mandamus, seeking to compel St. Bernard and Lake Borgne to satisfy the judgment. St. Bernard and Lake Borgne further allege that they paid Borgnemouth $100,000.00 each to forestall execution of the judgment until the resolution of case number 15-103C filed in this court.
On February 3, 2015, Lake Borgne filed a complaint in the United States Court of Federal Claims, case number 15-103C, concerning the judgment in the Borgnemouth case. In the complaint, Lake Borgne alleges that defendant’s failure to compensate Borgne-mouth for the losses Borgnemouth sustained as a result of the Army Corps’ entry onto and excavation of borrow material from its property constitutes a breach of the Amended Cooperation Agreement. In particular, Lake Borgne alleges that Article II.B.l and/or Article III.B of the Amended Cooperation Agreement, which discuss the obligations of the parties regarding Private LERD, required the Army Corps to compensate the Borgnemouth for the losses it sustained. Lake Borgne also alleges, in the alternative, that “the language in the Amended Cooperation Agreement constitutes an agreement to indemnify” St. Bernard and Lake Borgne.6 The complaint seeks to require the *330defendant to “to pay all amounts owed to Borgnemouth in satisfaction of the Louisiana State Court Judgment,” including the attorney’s fees awarded to Borgnemouth and the accumulating interest. Further, in the alternative, the complaint requests that the court order the United States to indemnify Lake Borgne for its losses, in the same amounts. Lake Borgne also seeks an order requiring defendant to pay all of its attorney’s fees and costs in the state court Borgnemouth case, along with its attorney’s fees and costs in the present litigation in ease number 15-103C, and the $100,000.00 payment Lake Borgne made to Borgnemouth to forestall judgement.
On June 2, 2015, St. Bernard filed a motion for leave to file a complaint for intervention in case number 15-103C, and the motion was granted by the court on June 10, 2015. St. Bernard’s complaint for intervention is virtually, and in all relevant respects, identical to the complaint filed by Lake Borgne, but requests that the various remedies requested by Lake Borgne be awarded to St. Bernard, as well as to Lake Borgne.
St. Bernard and Lake Borgne filed an. additional complaint in case number 15-518C on May 20, 2015 and filed an amended complaint in case number 15-518C on June 19, 2015. The amended complaint is almost identical to the ones filed by St. Bernard and Lake Borgne in case number 15-103C, but concerns the property allegedly taken from the Olivier Plantation landowners and the state court judgment subsequently awarded against St. Bernard and Lake Borgne in the Olivier Plantation case.7 As in case number 15-103C, plaintiffs allege breach of contract or, in the alternative, the existence of an indemnity agreement between themselves and the Army Coips. Plaintiffs seek to require defendant to pay the Olivier Plantation landowners the full amount of the state court judgment, including attorney’s fees and interest, or in the alternative that defendant indemnify plaintiffs for the same amount. Plaintiffs also seek their attorney’s fees and costs in the state court and present litigation, as well as the $50,500.00 payment each plaintiff made to the Olivier Plantation landowners to forestall judgement. On June 10, 2015, the court, with the agreement of the parties, consolidated the two above-captioned cases.
Defendant filed motions to dismiss in both case number 15-103C and case number 15-518C. In its motion filed in case number 15-518C, defendant states that the
two cases are virtually identical, presenting the exact same legal arguments, based on the exact same contract, which is why they have been consolidated. The only difference between these two cases is the identity of the underlying landowners to whom the plaintiffs owe compensation for takings under the Louisiana constitution.
Defendant’s motion to dismiss case number 15-518C, therefore, “contains only a brief overview of the action and only addresses factual matters unique to the Olivier Planta *331tion matter, but otherwise incorporates our [defendant’s] briefs filed in case no. 15-103C.” Plaintiff filed a response to defendant’s motion to dismiss in case number 15-103C, and re-filed the same document as its response to defendant’s motion to dismiss in case number 15-518C, along with a note stating that defendant’s motions to dismiss in both cases “present[] the same questions and arguments.” Defendant filed a reply in support of its motion to dismiss in case number 16-103C.8 In both cases, the parties filed a Joint Stipulation of Facts and a Notice of Document Upload including all of the relevant Louisiana state court decisions.
DISCUSSION
Defendant seeks dismissal of the two consolidated cases under Rules 12(b)(1) (2015) and 12(b)(6) of the Rules of the Court of Federal Claims (RCFC), for lack of jurisdiction and for failure to state a claim for which relief may be granted, respectively. Defendant first argues that the court lacks jurisdiction to hear plaintiffs’ claims because they are barred by the applicable statute of limitations. Defendant then argues that the court lacks jurisdiction to award plaintiffs’ requests for the attorney’s fees awarded against them in the state court Borgnemouth and Olivier Plantation cases because such awards are barred by law. Assuming the court has jurisdiction to hear plaintiffs’ claims, defendant further argues that plaintiffs have failed to state a claim for breach of the Amended Cooperation Agreement because they cannot establish that defendant had a duty to pay compensation for the properties at issue. With regard to plaintiffs’ alternative claim alleging the existence of an indemnification agreement between the parties, defendant argues such an indemnification agreement is barred by law.
It is well established that ‘“subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v, Shinseki, 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S.-, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it,” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg'l Med. Ctr., — U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013); see also Arbaugh v. Y & H Corp., 646 U.S. at 506, 126 S.Ct. 1235 (“The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n. 1 (Fed. Cir. 2012) (“An objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation,'including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07,126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1346 (“[A]ny party *332may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir, 2004), cert. denied, 546 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Mata v. United States, 118 Fed.Cl. 92, 95-96 (2014), recons. denied, 2015 WL 1000820 (Fed. Cl. Mar. 4, 2015); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed. Cir. 2011). In fact, “[sjubject matter jurisdicr tion is an inquiry that this court must raise sua sponte, even where .., neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006); see also Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir,) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 F.3d 1330 (Fed. Cir. 2010), cert. denied, 562 U.S. 1169, 131 S.Ct. 909, 178 L.Ed.2d 804 (2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2015); Fed. R. Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n. 9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). “A plaintiffs factual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’ ” Three S Consulting v. United States, 104 Fed.Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955), aff'd, 562 Fed.Appx. 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
When deciding a case based on a lack of subject matter jurisdiction or for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n. 1, 122 *333S.Ct. 992, 152 L.Ed.2d 1 (2002)))); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003).
If a defendant or the court challenges jurisdiction or a plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Therefore, although the court must assume that the undisputed facts alleged in the complaint are true for the purposes of the motion to dismiss and draws all reasonable inferences in the plaintiffs’ favor, the facts alleged in the complaint must be plausible and not merely naked assertions devoid of a factual basis. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n. 9 (Fed. Cir. 2007) (mere allegations of law and conclusions of fact are insufficient to support a claim); SUFI Network Servs., Inc, v. United States, 102 Fed. Cl. 656, 660 (2012) (plaintiff “must provide more than mere ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’ ” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)))); Rack Room Shoes v. United States 718 F.3d 1370, 1376 (Fed. Cir.) reh’g and reh’g en banc denied, (Fed. Cir. 2013) cert. denied, — U.S. -, 134 S.Ct. 2287, 189 L.Ed.2d 172 (2014); Kam-Almaz v. United States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (“[A] court is ‘ “not bound to accept as true a legal conclusion couched as a factual allegation.” ’ ” (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)))).
Statute of Limitations
Initially, defendant argues that plaintiffs’ claims must be dismissed for lack of jurisdiction under RCFC 12(b)(1) because, according to the government, plaintiffs failed to assert their claims within the applicable six-year statute of limitations established in 28 U.S.C § 2501 (2012). According to 28 U.S.C. § 2501:
Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues,... A petition on the claim of a person under legal disability or beyond the seas at the time the claim accrues may be filed within three years after the disability ceases.
Id. “The six-year statute of limitations set forth in section 2501 is a jurisdictional requirement for a suit in the Court of Federal Claims.” John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006), aff'd, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). The United States Court of Appeals for the Federal Circuit has indicated that a claim accrues ‘““when all events have occurred to fix the Government’s-alleged liability, entitling the claimant to demand payment and sue here for his money.” ’ ” San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1358-59 (Fed. Cir.) (quoting Samish Indian Nation v. United States, 419 F.3d 1355, 1369 (Fed. Cir. 2005) (quoting Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003), cert. denied, 540 U.S. 1177, 124 *334S.Ct. 1404, 158 L.Ed.2d 76 (2004))), reh'g en banc denied (Fed. Cir. 2011); see also FloorPro, Inc. v. United States, 680 F.3d 1377, 1381 (Fed. Cir. 2012); Martinez v. United States, 333 F.3d at 1303 (“A cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are necessary, to enable the plaintiff to bring suit, ie., when ‘all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.’ ” (quoting Nager Elec. Co. v. United States, 177 Ct.Cl. 234, 240, 368 F.2d 847, 851 (1966), motion denied, 184 Ct.Cl. 390, 396 F.2d 977 (1968)); Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988); see also Brizuela v. United States, 103 Fed.Cl. 635, 639, aff'd, 492 Fed.Appx. 97 (Fed. Cir. 2012), cert. denied — U.S. -, 133 S.Ct. 1645, 185 L.Ed.2d 619 (2013); Parkwood Assocs. Ltd. P’ship v. United States, 97 Fed.Cl. 809, 813-14 (2011), aff'd, 465 Fed.Appx. 952 (Fed. Cir. 2012); Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. at 209 (citing Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998)). Accrual of a claim is “ ‘determined under an objective standard’ ” and plaintiff does not have to possess actual knowledge of all the relevant facts in order for a cause of action to accrue. See FloorPro, Inc. v. United States, 680 F.3d at 1381 (quoting Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied, 517 U.S. 1243, 116 S.Ct. 2496, 135 L.Ed.2d 189 (1996)).
However, “[i]t is too well established to require citation of authority that a claim does not accrue until the claimant has suffered damages.” Terteling v. United States, 167 Ct.Cl. 331, 338, 334 F.2d 250, 254 (1964). “A ‘breach of contract claim acerue[s] when [the plaintiff] should have known that it had been damaged by the government’s breach.’ ” SAB Const., Inc. v. United States, 66 Fed.Cl. 77, 87 (2005) (quoting Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d 874, 878 (Fed. Cir. 1998)), aff'd, 206 Fed.Appx. 992 (Fed. Cir. 2006) (brackets in original). As noted by the court in SAB Construction:
It is perhaps more common that the plaintiff is damaged at the time .of breach, but in some circumstances ... the plaintiff may not be damaged until much later. In such a case, the claim for breach of contract will not accrue for statute of limitations purposes until the damages are incurred.
Id. at 88.
In the cases currently before the court, Lake Borgne filed its complaint in case number 15-103C on February 3, 2015, St. Bernard filed its separate complaint in case number 15-103C on June 2, 2015, and St. Bernard and Lake Borgne filed their complaint in ease number 15-518C on May 20, 2015. According to defendant, because the Amended Cooperation Agreement explicitly excluded payment for Public Sponsor LERD, as soon as plaintiffs “became aware that a property owner within the Public Sponsor LERD made a claim, they would have instantly known the United States Government would not pay.” Thus, defendant argues, the “only question” determining when plaintiffs’ claims accrued is when they knew that Borgnemouth and the Olivier Plantation landowners were demanding compensation for the activities at issue in state court. According to defendant, with respect to case number 15-103C, plaintiffs must have known Borgnemouth was demanding compensation, and, thus, their cause of action, thus, accrued no later than, January 8, 2009, when Lake Borgne stated in its answer in the Borgne-mouth case in the state trial court that the Army Corps was a necessary party to that litigation. With respect to case number 15-518C, defendant argues that plaintiffs must have known the Olivier Plantation landowners were demanding compensation, and, thus, their cause of action must have accrued no later than, May 8, 2009, when St. Bernard moved for leave to file an amended answer and third-party complaint in the Olivier Plantation case in the state trial court, alleging that the Army Corps was required under the Amended Cooperation Agreement to compensate the Olivier Plantation landowners. According to defendant, Lake Borgne’s February 3, 2009 answer and St. Bernard’s May 8, 2009 third-party complaint in the state court proceedings establish that, at the moment these documents were filed, Lake Borgne and St. Bernard had knowledge of *335the takings at issue in the state court and the availability to them “of the very cause of action” for breach of contract that they present here. Because plaintiffs waited more than six years after these dates, February 3, 2009 and May 8, 2009, respectively, to file their present actions in this court, defendant argues that plaintiffs’ claims are untimely and should be dismissed.
Both plaintiffs respond that their claims for breach of contract and indemnification “did not arise until the obligation^] to the landowner[s] w[ere] established by the Louisiana state courts.” Plaintiffs also argue that defendant is barred by the doctrine of judicial estoppel from taking its current position that plaintiffs’ claims arose in 2009 because defendant allegedly took a contrary position when it argued that Lake Borgne’s indemnification claim was unripe in the removal proceedings in the United States District Court for the Eastern District of Louisiana.
The court rejects defendant’s argument that the plaintiffs’ causes of action accrued the moment plaintiffs knew that Borgne-mouth and the Olivier Plantation landowners were demanding compensation in Louisiana state court for the activities at issue. Although, at that time, plaintiffs were aware that Borgnemouth and the Olivier Plantation landowners had asserted claims in state court to be compensated for the takings of what St. Bernard and Lake Borgne allege was Private LERD, defendant has not shown that plaintiffs had suffered any damages as a result of an alleged breach, pending the outcome of the state court cases. Nor do the state court filings establish that plaintiffs understood they had, at that time, suffered damages. Lake Borgne’s answer in the Borgnemouth case simply stated that Borgnemouth had “failed to join a party needed for just adjudication.” Similarly, St. Bernard’s third-party complaint in the Olivier Plantation case alleged only that the Olivier Plantation landowners had been damaged by the Army Corps’ actions and that, under the terms of the Amended Cooperation Agreement, St. Bernard would be entitled to contribution from defendant United States “for any and all sums that [the Olivier Plantation] Plaintiffs may be awarded in this action.” (emphasis added).
Because damages are a necessary element of a claim for breach of contract, plaintiffs’ causes of action against defendant would not have accrued until plaintiffs had suffered such damages. See Terteling v. United States, 167 Ct.Cl. at 338, 334 F.2d 260. In Terteling v. United States, the government contracted to have gravel extracted from a certain gravel pit, which the government agreed to “furnish without cost.” Id. at 334, 334 F.2d 250. Unfortunately, the pit was actually owned by a private party who sued the contractors for unauthorized extraction. See id. at 335-37, 334 F.2d 250. Although the Terteling contractors were ultimately successful in defending the lawsuit, they incurred substantial litigation expenses, and sued the government for breach of contract, arguing that because of these expenses, the government had failed to provide the pit “without cost.” Id. at 332-33, 334 F.2d 250. The government sought to have the claims dismissed as untimely, arguing that the applicable statute of limitations had begun to run when the contractors’ work was completed and the contractual payment was made by the government. See id. at 337, 334 F.2d 250. The court rejected that position, reasoning that “at that point plaintiffs had not suffered any damages” and, thus, “it was impossible for the contractors at that time to set up a claim.” Id. at 338, 334 F.2d 250. Instead, the United States Court of Claims held that “[i]t was only when the litigation ended that the contractors could determine the total amount of the litigation expenses.” Id. According to the court, “these contractors had the right to wait until their full obligations were ascertainable before bringing suit.” Id. at 339, 334 F.2d 250 (citing United States v. Dickenson, 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947)).
Although the details of the contracts at issue in Terteling and the instant cases differ, the central teaching of the Terteling case is applicable here, i.e., plaintiffs have “the right to wait until their full obligations were ascertainable before bringing suit.” Id.; see also State of Ill. v. United States, 15 Cl.Ct. 399, 408 (1988) (holding that the statute of *336limitations did not begin to run until after a “final judicial determination” was made in a separate case in which such a determination “was a prerequisite to enable plaintiff to determine its rights and whether it had suffered damages because of defendant’s non-feasance”). In the cases before the court, St. Bernard and Lake Borgne were unable to ascertain if they had suffered any damages until after the conclusion of the two state court cases, including after the final possibility of appeal had been exhausted. See Terteling v. United States, 167 Ct.Cl. at 338, 334 F.2d 250 (“[T]he termination of the litigation was not until the Supreme Court denied cer-tiorari ....”); see also State of Ill. v. United States, 15 Cl.Ct. at 408 (holding that the statute of limitations ran from the time the relevant issue allowing plaintiff to determine its damages was “no longer subject to judicial change”). Thus, it was not until plaintiffs’ writs were denied by the Louisiana Supreme Court in the Borgnemouth and Olivier Plantation cases on September 26, 2014 and February 27, 2015, respectively, that the statute of limitations for plaintiffs’ claims began to run. St. Bernard and Lake Borgne filed their complaints in the case in this court arising from the state court Borgnemouth case, case number 15-103C, on June 2, 2015 and February 3, 2015, respectively, and their combined complaint in the case in this court arising from the state court Olivier Plantation case, case number 15-518C, on May 20, 2015. As such, plaintiffs’ claims fall well within the six year statute of limitations. This conclusion is supported by the decision of the District Court Judge’s decision in Olivier Plantation, LLC v. St. Bernard. Parish not to transfer the case to this court. See generally Olivier Plantation, LLC v. St. Bernard Parish, 744 F.Supp.2d 575. As noted above, the District Court Judge declined to transfer St. Bernard’s third-party claims against the Army Corps to the Court of Federal Claims even though she concluded that the Court of Federal Claims would be the proper venue because the claims were premature and ultimately depended on the resolution of the Olivier Plantation landowners’ suits against St. Bernard and Lake Borgne. See id. at 588-89.
Given that this court.has jurisdiction to entertain plaintiffs’ claims, plaintiffs’ defense that defendant’s arguments contradict defendant’s previously held position in the removal proceedings before the United States District Court for the Eastern District of Louisiana and, thus, defendant’s arguments are barred by the doctrine of judicial estoppel, need not be addressed.
Plaintiffs’ Request for Attorney’s Fees
Defendant next argues that this court lacks jurisdiction to grant plaintiffs’ request for the attorney’s fees awarded against St. Bernard and Lake Borgne in the state court Borgnemouth and Olivier Plantation eases. According to defendant, citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), the court lacks jurisdiction because the United States may not be sued without its consent absent a waiver of sovereign immunity; and there is no provision in the Amended Cooperation Agreement providing for such a waiver. Moreover, defendant argues that the language in Article V of the Amended Cooperation Agreement explicitly excludes payments for any costs incurred by the plaintiffs, including attorney’s fees awarded against the plaintiffs in state court actions. Finally, defendant argues that these attorney’s fees are an element of plaintiffs’ “Non-Existent” implied indemnification agreement and must be dismissed for the same reasons that plaintiffs’ alleged indemnity agreement argument must be rejected.
In response, plaintiffs argue that the attorney’s fees they seek were not incurred in the present action, but, instead, are “an inseparable component” of the just compensation awarded to Borgnemouth and the Olivier Plantation landowners by the Louisiana courts. Plaintiffs argue that, under Article II.B.l of the Amended Cooperation Agreement, the Army Corps agreed to pay “just compensation to the owners of a compensable interest in” Private Sponsor LERD. Plaintiffs further argue, citing the Louisiana Court of Appeals decision in Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 141 So.3d at 902-03, that attorney’s fees are a statutorily required component for just compensation due for a taking under Louisiana *337law. Thus, according to plaintiffs, defendant “is'liable under its contractual indemnification obligations for the entire amount awarded” in the state court litigations, including attorney’s fees.
As defendant notes, “[i]t is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. at 212, 103 S.Ct. 2961. With regard to breach of contract claims, “[t]he source of consent for such suits unmistakably lies in the Tucker Act.” Id. at 216, 103 S.Ct. 2961; see 28 U.S.C. § 1491(a)(1). “The Tucker Act’s waiver of sovereign immunity, however, does not extend to expenses incurred in litigating against the United States, because under the so-called ‘American Rule’ a specific waiver by Congress is required in order to recover attorney’s fees incurred in litigation with the Government.” Chevron U.S.A., Inc. v. United States, 71 Fed.Cl. 236, 268 (2006) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247, 96 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Texas Instruments v. United States, 991 F.2d 760, 763 (Fed. Cir. 1993) (“[I]t is [nevertheless] well-settled [that] in the absence of specific statutory authority, expenses incurred in litigation, whether legal, accounting, secretarial or other, are not award[ed against the United States].” (quoting Estate of Berg v. United States, 231 Ct.Cl. 466, 476, 687 F.2d 377 (1982)) (first alteration added)); Machinery Corp. of Am. v. Gullfiber AB, 774 F.2d 467, 471 (Fed. Cir. 1985); Piggly Wiggly Corp. v. United States, 112 Ct.Cl. 391, 432, 81 F.Supp. 819 (1949) (“[Attorneys fees are not allowed in suits against the United States in the absence of an express statutory provision allowing them....”).
Contrary to defendant’s apparent argument, however, there is no absolute bar against the award of any attorney’s fees against the United States. See Chevron U.S.A., Inc. v. United States, 71 Fed.Cl. at 268 (“The American Rule, however, is not a blanket prohibition against the recovery of attorney’s fees.” (citing Mass, Bay Trans. Authority v. United States, 129 F.3d 1226, 1230 (Fed. Cir. 1997)); Southern Cal. Fed. Savings & Loan Assoc. v. United States, 57 Fed.Cl. 598, 624 (2003), rev’d on other grounds, 422 F.3d 1319 (Fed. Cir. 2005)). Instead, attorney’s fees not incurred in litigation against the United States “are compen-sable if they are ‘a direct and foreseeable consequence’ of the Government’s ‘breach of its contractual undertakings.’” SUFI Network Servs., Inc. v. United States, 105 Fed. Cl. 184, 195 (2012) (quoting Mass. Bay Transp. Auth. v. United States, 129 F.3d at 1232-33), aff'd in part, vacated in part, 785 F.3d 585 (Fed. Cir. 2015). Such attorney’s fees have been awarded against the government in a variety of cases. See SUFI Network Servs., Inc. v. United States, 785 F.3d 585, 592 (Fed. Cir. 2015) (affirming trial court’s award of attorney’s ’fees incurred by plaintiff in preparing and submitting its claims to a contracting officer as result of government’s breach on the grounds that “[u]nder common law, damages for breach of contract are awarded to place the wronged party in the position it would have been in had the contract been fully performed” (citing Mass. Bay Trans. Auth. v. United States, 129 F.3d at 1232)); Mass. Bay Trans. Auth. v. United States, 129 F.3d at 1232-33 (holding that the United States was liable for plaintiffs state court attorney’s fees resulting from its breach of contract); Terteling v. United States, 167 Ct.Cl. at 340-41, 334 F.2d 250 (holding that, because the government breached an implied contract with plaintiff contractors to “do nothing which would result in any cost to the contractors,” the government was “liable for the resulting litigation expenses” incurred by the contractors in state court); Pratt v. United States, 50 Fed. Cl. 469, 482-83 (2001) (“[W]here legal fees incurred in an action by a third party are determined to be a direct and foreseeable consequence of defendant’s breach, they have been awarded.” (citing Terteling v. United States, 167 Ct.Cl. at 340, 334 F.2d 250)); Chevron U.S.A., Inc. v. United States, 71 Fed.Cl. at 270-71 (denying motion to dismiss plaintiffs request for attorney’s fees incurred participating in an “equity finalization process” because “they were not incurred in litigation against the United States”).
*338Massachusetts Bay Transportation Authority v. United States, a binding precedent not cited by defendant in its submissions to this court, appears to directly reject defendant’s argument. In Massachusetts Bay, the Massachusetts Bay Transportation Authority (MBTA) entered into a Construction Agreement with the Federal Railroad Administration (FRA) to renovate Boston’s South Station, which was owned by the MBTA. See Mass. Bay Trans. Auth. v. United States, 129 F.3d at 1228-29. Among the obligations the Construction Agreement imposed on the FRA was to secure insurance endorsements safeguarding the MBTA “against liability in the event of claims due to design errors, omissions, or acts of negligence” by the project’s architecVengineers, which the FRA failed to do. Id. at 1231-32. Due to design errors, the renovation was ultimately completed 956 days late and substantially over budget. See id. at 1230. The MBTA, therefore, brought a declaratory action against the project’s construction contractor in Massachusetts state court to resolve “various issues of liability and responsibility.” Id. The MBTA also filed suit against the FRA in the Court of Federal Claims for breach of contract, offering, among other allegations, that FRA had failed to secure the required insurance endorsements. See id. Among the damages sought by the MBTA were “the expenses of the Massachusetts litigation including attorney fees.” Id. at 1232. The FRA, using language almost identical to the defendant in the present case, argued that such a claim was barred. See id. at 1233. The Federal Circuit directly rejected this argument, stating:
FRA argues that MBTA’s claim to include attorney fees and consultant expenses as damages for breach of § 222(c) [which required the FRA to obtain the insurance endorsements] is barred because no statute has waived sovereign immunity for such recovery, citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) for the proposition that attorney fees are not recoverable in an action against the United States unless ejqpressly provided for by Congress. However, the recovery sought by MBTA is not for attorney fees in an action against the United States, but for damages for breach of a contract to obtain insurance. The damages are measured by the benefit MBTA would have received had FRA not breached its obligation under § 222(c), not the cost of MBTA’s action against the United States. Thus damages would include the Massachusetts litigation and settlement expenditures to the extent that they would have been covered by the insurance endorsements and thus would not have been incurred by MBTA
Mass, Bay Trans. Auth. v. United States, 129 F.3d at 1233.
In their complaints in the present actions, plaintiffs request that the court order defendant to pay “all amounts owed ... in satisfaction of the Louisiana State Court Judgment[s]” in the Borgnemouth and Olivier Plantation cases, including the attorney’s fees the state court awarded to Borgnemouth and the Olivier Plantation landowners. As the government itself points out in its motion to dismiss case number 15-103C, the United States was not a party to either of the state court Borgnemouth and Olivier Plantation cases. Thus, as in the Massachusetts Bay case, plaintiffs in the above-captioned cases do not seek to recover “attorney fees in an action against the United States,” but as damages for defendant’s alleged breach of contract or based on the alleged indemnity agreement. See id. The measure of such damages are the fees incurred because of the defendant’s alleged breach of contract, or the benefit to the plaintiffs from the parties’ alleged indemnity agreement, and not “the cost of [plaintiffs’] action against the United States.” Id. The court, thus, has jurisdiction to consider the attorney’s fees sought by plaintiffs.
Nor are the attorney’s fees sought by plaintiffs barred by Article V of the Amended Cooperation Agreement. Article V states, in full: “The Public Sponsors shall not be entitled to receive a credit or reimbursement for any costs incurred by the Public Sponsors hereunder.” The term “hereunder” indicates that the Article V is referring to costs incurred by the Public Sponsors in fulfillment of their obligations outlined in the Amended Cooperation Agreement. See *339Black’s Law Dictionary 844 “Hereunder,” (10th ed. 2014) (“2. In accordance with this document < notice hereunder must be provided within 30 days after the loss>.”). The attorney’s fees sought by plaintiffs were not incurred by the plaintiffs carrying out their obligations under the Amended Cooperation Agreement, but as part of court judgments that allegedly resulted from defendant’s breach of that the Amended Cooperation Agreement. The attorney’s fees, therefore, are not barred by Article V.
Finally, the court defers addressing defendant’s argument that the attorney’s fees sought by plaintiffs must be dismissed as an element of plaintiffs’ alleged indemnification agreement. As discussed below, the court is deferring ruling on whether plaintiff has adequately pled the existence of such an indemnification agreement.
Plaintiffs’ Claims for Breach of Contract
Defendant also argues that, if the court finds that jurisdiction exists, plaintiffs’ breach of contract claims should be dismissed for failure to state a claim under RCFC 12(b)(6). Defendant does not challenge the existence of a valid contract between the Army Corps and both plaintiffs in the form of the Amended Cooperation Agreement. Instead, defendant argues that plaintiffs have failed to establish that the Army Corps had a valid duty under the contract to pay compensation for the properties involved in the Borgnemouth and Olivier Plantation cases because the property interests involved allegedly constituted Public Sponsor LERD under Article III.A.1 of the Amended Cooperation Agreement.
Under the terms of the Amended Cooperation Agreement, the defendant’s obligations depended on whether the property interests at issue constituted Public Sponsor or Private LERD. Article III.A of the Amended Cooperation Agreement defines LERD as “lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas.” Article III.A.1 of the Amended Cooperation Agreement defines Public Sponsor LERD as “LERD that they [the Public Sponsors, i.e., St. Bernard and Lake Borgne] own, claim or control,” and Article III.A.3 defines Private LERD as “all other LERD not owned, claimed, or controlled by the Public Sponsors or Other Non-Federal Governmental Entities.”9 Both of these sections require the Public Sponsors to provide the Army Corps with a right of entry to LERD “determined by the Government to be necessary for the construction, operation and maintenance of the Rehabilitation Effort.” With regard to Private LERD, Article III.B of the Amended Cooperation Agreement requires that “the Government, in the name of the Public Sponsors, identify and provide just compensation to the owners of a compensable interest in the Private LERD.” No similar obligation to compensate the owners of the LERD is, however, included with regard to Public Sponsor LERD. That none was intended is made explicit in Article I.B of the Amended Cooperation Agreement’s definition of the term “Rehabilitation Effort costs,” which states that “[t]he term shall not include ... the costs of lands, easements, rights-of-way, borrow, or relocations that are owned, claimed, or controlled by the Public Sponsors.”
Although both defendant and plaintiffs present arguments, discussed below, as to whether the LERD at issue in the above-captioned cases was Public Sponsor or Private LERD, neither party attempts to define the exact property interests that constituted the LERD at issue in the cases before the court. Before discussing the parties’ arguments, the court, therefore, looks to the record to define the LERD at issue. Article III.A of the Amended Cooperation Agreement states:
The Government shall provide the Public Sponsors with a description of the anticipated real estate requirements and reloca-tions for the Rehabilitation Effort. Thereafter, the Public Sponsors shall, at no cost to the Government provide right of entry, to all lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas (herein*340after LERD) as may be determined by the Government in that description, or in any subsequent description, to be necessary for the construction, operation, and maintenance of the Project and the Rehabilitation Effort, in the manner hereinafter discussed.
(emphasis added). Similarly, Article III.A.1 of the Amended Cooperation Agreement states: “The Public Sponsors shall provide right of entry to all LERD that they own, claim or control (hereinafter Public Sponsor LERD) ... as determined by the Government to be necessary for the construction, operation and maintenance of the Rehabilitation Effort.” (emphasis added). The Amended Cooperation Agreement thus envisioned a two step process: 1) the Army Corps would provide plaintiffs with a description of the LERD it needed; and 2) the plaintiffs would provide the Army Corps with right -of entry to this LERD. The parties’ obligations under the Amended Cooperation Agreement, therefore, attached to the LERD included in the Army Corps’ description.
On September 19, 2006, the Army Corps sent a letter to Lake Borgne describing the LERD it would need, as follows:
This [LPV Levee] repair work will require considerable earthen borrow material. A potential source for this material has been identified as a 200 foot-wide strip of land along the levee between the Bayou Bien-venue Control Structure and the southeast corner of the hurricane protection levee (station 1007+91). This area which is described as a 300-ft. long strip of land measured from the edge of the existing levee right-or-way is shown on the enclosed map entitled “St. Bernard Borrow Area.” The top five (6) feet of this material will be removed and wasted as it is unsuitable for levee construction. The material will be obtained by excavating the material to a depth of no more than an additional 16 feet.
The September 19, 2006 letter goes on to request that Lake Borgne provide the Army Corps with a right of entry to the identified “borrow area.” Lake Borgne ultimately provided the Army Corps with a right of entry to the LERD the Army Corps had requested in its September 30, 2006 Authorization for Entry, in which it authorized the Amy Corps “to enter upon these lands to obtain borrow, access, and construct (repair and rehabilitate) said [LPV] levee.” Plaintiffs allege that Borgnemouth’s and the Olivier Pla-nation landowners’ properties were among those identified in the Army Corps’ September 19, 2006 letter and Lake Borgne’s September 30, 2005 Authorization for Entry. While neither of the documents defines the term “borrow area,” both the Army Corps’ statement that it would excavate between five and twenty feet of soil from the borrow area and Lake Borgne’s statement that it authorized the Army Corps to “obtain borrow” from the requested properties, show that, at a minimum, the Army Corps was requesting the right to remove between five to twenty feet of soil for the purposes of the present motion, the LERD at issue in the above-captioned cases, thus, encompassed, at a minimum, the right to remove between five to twenty feet of subsurface material from portions of the properties owned by Borgne-mouth and the Olivier Plantation landowners for the purpose of repairing the LPV Levees.10
Defendant argues that' the Army Corps had no duty to compensate the owners of the LERD at issue in either of the above-captioned cases because it was Public Sponsor LERD. According to defendant, the property at issue in both of the above-captioned eases constituted Public Sponsor LERD because Lake Borgne and St. Bernard “had asserted for decades that [they] ‘owned, claimed, or controlled’ rights to ‘lands, easements, and rights-of-way, including borrow and spoil-dis*341posal areas necessary for construction, operation, and maintenance of the’ LPV project.” (footnote omitted). Defendant points to six documents it claims show that plaintiffs made such assertions: 1) the August 16, 1966 Act of Assurance concluded between St. Bernard, Lake Borgne and the Army Corps; 2) the August 15, 1966 Resolution adopted by Lake Borgne and incorporated into the 1966 Act of Assurance; 3) the August 15, 1966 Resolution adopted by St. Bernard and incorporated into the 1966 Act of Assurance; 4) the December 1, 1977 Agreement concluded between St. Bernard, Lake Borgne, and the Army Corps; 5) the January 13, 1976 Resolution adopted by St. Bernard and incorporated into the 1977 Agreement; and 6) the April 20, 1976 Resolution adopted by Lake Borgne and incorporated into the 1977 Agreement, all executed long before the 2005 Amended Cooperation Agreement signed by plaintiffs and defendant. Defendant also argues that the LERD at issue in both case numbers 15-103C and 15-518C constituted Public Sponsor LERD because both St. Bernard and Lake Borgne represented to the state courts in the Borgnemouth and Olivier Plantation cases that Lake Borgne possessed rights to remove borrow material from the Borgnemouth and the Olivier Plantation landowners land under the three appropriating resolutions passed by Lake Borgne on April 11, 1967, June 6, 1967, and May 13, 1969. In support of this claim, defendant points to the Louisiana Court of Appeals’ finding in the Borgnemouth case that St. Bernard and Lake Borgne had “primarily claimfed] that the [Lake Borgne] Levee District had already acquired the right to remove the borrow material by virtue of a preexisting extra-codal servitude, or a fm%~ser-vitude, which ... had been appropriated by the Levee District between 1967 and 1969.” Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 141 So.3d at 895 (footnotes omitted and underline added).11 Defendant claims that this indicates that the property interest at issue “constitutes Public Sponsor LERD since the Levee District has claimed that it possessed the rights to this property since at least 1967.”12
Plaintiffs argue that the LERD at issue was Private LERD on two grounds. First, plaintiffs argue, citing the decision of the Louisiana Court of Appeals in Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, that plaintiffs never had the right to excavate borrow material from these properties, and, therefore, the LERD at issue could not be Public Sponsor LERD (citing Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 141 So.3d at 897 (“To this point, it is clear that Borgnemouth would be the owner of the soil *342and clay under its tract of land and that it would be entitled to just compensation for the borrowing of its minerals by these political subdivisions.”))- Second, plaintiffs argue that the process by which a right of entry to the properties at issue was delivered to the Army Corps shows that it was Private LERD under the Amended Cooperation Agreement. In particular, plaintiffs argue that they followed the process outlined under Article III.A3 of the Amended Cooperation Agreement for providing right of entry to Private LERD when St. Bernard “commandeered” the LERD requested by the Army Corps from its private owners, St, Bernard transferred the right of .entry to the properties to Lake Borgne, and Lake Borgne then tendered the right of entry to the Army Corps. Therefore, according to plaintiffs, “[t]he land and borrow material at issue meets the definition of ‘Private LERD’ on all accounts.”
Defendant overstates the meaning of the language it quotes from the 1966 Act of Assurance, the 1977 Agreement between the parties, and the four resolutions issued by plaintiffs in 1966 and 1976. The August 16, 1966 Act of Assurance states that St. Bernard and Lake Borgne “will jointly and severally, without 'cost to the United States ... [pjrovide all lands, easements, and rights-of-way, including borrow and spoil-disposal areas necessary for construction, operation, and maintenance of the [HSP] project.” The December 1, 1977 Agreement between the parties states that St. Bernard and Lake Borgne “agree that they will, without cost to the United States ... [pjrovide all lands, easements, and rights-of-way, including borrow and spoil-disposal areas necessary for construction, operation, and maintenance of the [HSPj project.” The August, 16, 1966 Resolution issued by Lake Borgne states that the President of the ’Board of Commissioners of Lake Borgne is “authorized, empowered and directed ... to acquire and make available, without cost to the United States, all lands, easements, and rights-of-way for that portion of the [HSP] project located in the Parish of St. Bernard.” The August 16, 1966 Resolution issued by St. Bernard states that the President of St. Bernard is “authorized, empowered and directed” to do the same. The January 13, 1976 Resolution adopted by St. Bernard states that St. Bernard “agrees that it will, without cost to the United States ... [pjrovide all lands, easements, and rights-of-way, including borrow and spoil-disposal areas necessary for construction, operation, and maintenance of the [HSP] project.” The April 20, 1976 Resolution- adopted by Lake Borgne states that Lake Borgne agrees to do the same. In each of these documents, plaintiffs state either that they “will,” or that their executive is “authorized, empowered and directed” to, provide the United States “all lands, easements, and rights-of-way necessary” for the HSPP. Each document, thus, promises, at some unspecified future date, to provide the government with certain, unspecified, lands, easements, or rights-of-way. Such promises do not imply that Lake Borgne or St. Bernard owned, claimed, or controlled any particular lands, easements, or rights-of-way, at the time they were made, or anytime thereafter, let alone the specific LERD involved in the present litigation. The documents, therefore, do not provide evidence as to whether the LERD at issue in the above-captioned cases was Private or Public Sponsor LERD.
Defendant next argues that the LERD at issue was Public Sponsor LERD because St. Bernard and Lake Borgne represented in state court that they owned, claimed, or controlled the LERD at issue, including rights to borrow material, based on servitudes Lake Borgne had obtained through three appropriating resolutions it passed on April 11, 1967, June 6, 1967, and May 13, 1969. The court notes that Article II.B.l of the Amended Cooperation Agreement states: *343This language indicates that the Army Corps’ obligations with respect to any Private LERD attached when the Army Corps received the right of entry to the LERD from either St. Bernard or Lake Borgne. Further, there is no indication in the Amended Cooperation Agreement that any actions taken by either of the plaintiffs after offering the right of entry to the Army Corps could affect or modify the Army Corps’ obligations. Lake Borgne provided a right of entry to the Army Corps to the LERD at issue in both of the above-captioned cases with its September 30, 2005 Authorization for Entry. The state court Borgnemouth and Olivier Plantation cases began when the plaintiffs in those cases filed them complaints on November 13, 2008 and May 18, 2007, respectively. Any statements made by St. Bernard and Lake Borgne in the state court cases regarding the LERD at issue came years after the Army Corps had received a right of entry to that LERD. These statements could not have altered the obligations that the Army Corps may have had under the Amended Cooperation Agreement or transform Private LERD into Public Sponsor LERD. The plaintiffs’ statements in state court, therefore, are not dispositive as to whether Lake Borgne or St. Bernard have stated a claim for breach of contract in this court.
*342[Ajfter receiving the Public Sponsors’ right of entry to the lands, easements, and rights of way, including suitable borrow and dredged or excavated material disposal areas (LERD) that are described in Article III.A2. and III.A3 of this Amendment, the Government, subject to the availability of appropriations, shall identify and pay just compensation to the owners of a compensable interest in the LERD described in Article III.A3. of this Amendment.
*343Defendant also argues that the statements by the plaintiffs in the Borgnemouth and Olivier Plantation cases regarding the April 11, 1967, June 6, 1967, and May 13, 1969 resolutions issued by Lake Borgne indicate that Lake Borgne “claimed that it possessed the rights” to the LERD at issue “since at least 1967.” As noted above, the LERD at issue included the right to remove up to twenty feet of subsurface material from portions of Borgnemouth and the Olivier Plantation landowners’ properties for the purpose of repairing the LPV Levees. By contrast, in each of the April 11, 1967, June 6, 1967, and May 13, 1969 resolutions, Lake Borgne claims to have appropriated only “right[s] of way” and “temporary spoil easement[s]” in the properties requested by the Army Corps. As both parties note in their briefs, the Louisiana Court of Appeals ultimately found that, through this language, Lake Borgne had not obtained any rights under Louisiana State law to “excavate, exploit, mine, or otherwise remove the soil or clay” owned by Borgne-mouth or the Olivier Plantation landowners. See Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 141 So.3d at 896; see also Olivier Plantation, L.L.C. v. Parish of St. Bernard, 151 So.3d at 969 (holding that the holding in Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard was “dispositive of all the issues in this case” with the exception of attorney’s fees). The Louisiana Court of Appeals also found that, “[a]ll of the resolutions are silent about exploiting the land for soil or clay to construct the levee” and that nothing in the resolutions suggests an intent to appropriate such rights. Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 141 So.3d at 899. Such “silence” in the three resolutions about “exploiting” any properties for their soil or clay precludes a finding on defendant’s motion to dismiss that Lake Borgne had, through those three resolutions, claimed that it possessed the rights to the LERD at issue in the present cases, including a right to remove soil from the Borgnemouth and Olivier Plantation landowners’ properties. Defendant points to no reason why this finding by the Louisiana Court of Appeals was in error. Nor does the court see any reason, at this time, to second guess the findings of the Louisiana Court of Appeals, which were based on a thorough review of the April 11, 1967, June 6, 1967, and May 13, 1969 resolutions, related documents, and Louisiana law. Because there is no evidence in the record at this time that demonstrates that either of the plaintiffs ever owned, claimed or controlled the LERD at issue prior to commencement of the state court Borgnemouth and Olivier Plantation cases, the court finds that plaintiffs have sufficiently alleged that the LERD at issue was Private, rather than Public Sponsor LERD.13 Defendant’s motion to dis*344miss plaintiffs’ breach of contract claims in both of the above-captioned cases for failure to state a claim, therefore, fails.
Plaintiffs’ Claims for Indemnification
In their complaints, plaintiffs allege, in the alternative, that the language of the Amended Cooperation Agreement constitutes an indemnity agreement and, therefore, defendant is required to indemnify plaintiffs for the entire amount of the judgments in the Borgnemouth and Olivier Plantation cases. Defendant argues that plaintiffs’ indemnification claims allege the existence of an implied-in-fact contract, and that such an implied-in-fact contract is barred by law. As noted above, plaintiffs’ counsel, however, conceded at oral argument that no implied-in-fact contract exists in the above-captioned cases. Plaintiffs allege that the government previously, and in contradiction to its current arguments, characterized the Amended Cooperation Agreement as an indemnification agreement in its “Third-Party Defendant’s Memorandum on Jurisdiction” filed in the removal proceedings in the United States District Court for the Eastern District of Louisiana. Dkt. 60, Olivier Plantation, LLC, Park Invs., Ltd., and Morning Park, Inc. v. Parish of St. Bernard, Lake Borgne Basin Levee District, No. 09-3581 (E.D. La. June 3, 2010). According to the plaintiffs, “the Government is bound by its prior interpretation.” At the end of oral argument, plaintiffs also argued, for the first time, and without elaboration, that the Army Corps’ obligation in Article III.B of the Amended Cooperation Agreement to compensate the owners of Private LERD “in the name of the Public Sponsors” created an indemnification agreement. Although the complaints in both of the above-captioned cases state “the language in the Amended Cooperation Agreement constitutes an agreement to indemnify St. Bernard and the Levee District for those expenses,” neither party briefed the issue.
Initially, the court addresses plaintiffs’ argument that the government, in contradiction to its current position, characterized the Amended Cooperation Agreement as an indemnification agreement before the United States District Court for the Eastern District of Louisiana. An examination of the government’s “Third-Party Defendant’s Memorandum on Jurisdiction,” filed with the District Court for the Eastern District of Louisiana in Olivier Plantation, LLC v. St. Bernard Parish on June 3, 2010, which was attached to plaintiffs’ responses to defendant’s motions to dismiss in both of the above-captioned cases, indicates that the government did not, as plaintiffs allege, argue that the Amended Cooperation Agreement created an indemnity obligation in favor of the plaintiffs against the Government. Instead, the government’s Memorandum characterized St. Bernard’s third-party claim in the Olivier Plantation case against it as being one for indemnification, stating: “The Parish’s claim that the United States is obligated to reimburse it for payments that it becomes obligated to pay despite the fact that its contracting partner, the United States, allegedly agreed to make those payments, is essentially a claim for indemnification.” The government then proceeded to argue that such a claim properly should be filed in the United States Court of Federal Claims and, further, would be unripe because the underlying obligation had yet to be determined by the state court.14 Defendant, thus, did not, as plaintiffs claim, characterize the Amended Cooperation Agreement as an indemnification agreement in its filings with the District Court for the Eastern District of Louisiana.
The court cannot, however, at this time, decide defendant’s motion to dismiss with respect to plaintiffs alleged indemnity agreement. “Courts are rightfully loathe to allow a party to.raise an issue at oral argu*345ment for the first time because there is a lack of notice to the court and adversary.” Res. Recycling Corp. v. United States, 56 Fed.Cl. 612, 618 (2003) (citing Cubic Def. Sys. v. United States, 45 Fed.Cl. 450, 466-468 (1999)); see also L-3 Global Comms. Solutions, Inc. v. United States, 82 Fed.Cl. 604, 611 (2008) (“Plaintiff must not be allowed to advance new legal theories at oral argument, prejudicing defendant.” (citing Arakaki v. United States, 62 Fed.Cl. 244, 246 n. 9 (2004) (“The court will not consider arguments that were presented for the first time in a reply brief or after briefing was complete.” (citing Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002))))). Although plaintiffs allege in their complaints that “the language in the Amended Cooperation Agreement” constituted an indemnification agreement, they did not specify, either in their complaints or in their oppositions to defendant’s motion to dismiss, which language in the Amended Cooperation Agreement allegedly did so. Instead, plaintiffs waited until the very end of oral argument to even remotely discuss for the first time their argument that their alleged indemnification agreement was created by the statement in Article III.B of the Amended Cooperation Agreement that “the Government in the name of the Public Sponsors, identify [sic] and provide [sic] just compensation to the owners of a compensable interest in the Private LERD.” Not only should defendant should be afforded an opportunity to respond to this argument, but the plaintiffs should be held to the task of putting flesh on their argument to allow defendant to respond. The court, therefore, defers its decision on whether to dismiss plaintiffs’ indemnity claims pending further briefing by the parties, a schedule to be set by separate order.
CONCLUSION
In both of the above-captioned cases, defendant’s motions to dismiss plaintiffs’ complaints are DENIED IN PART and DEFERRED IN PART. The court finds that plaintiffs’ claims are timely and not barred by the statute of limitations. Additionally, the court finds that it has jurisdiction to award, if appropriate, the attorney’s fees sought by plaintiffs. The court also finds that plaintiffs have stated a claim for breach of contract in both of the above-captioned cases. With respect to plaintiffs’ claims for breach of contract, defendant’s motions to dismiss in both of the above-captioned cases are, therefore, DENIED. With respect to plaintiffs’ indemnification claims, defendant’s motions to dismiss in both of the above-captioned cases are DEFERRED pending further briefing by the parties.
IT IS SO ORDERED.
. The current version of the statute differs from the version in effect in 2005, notably by adding subsection X and renaming the "Military Department, office of homeland security and emergency preparedness”, as the "Governor’s Office of Homeland Security and Emergency Preparedness.” Subsection F, cited above, however, remains unchanged in the two versions.
. The Requests for Assistance refers to the "newly-acquired lands, easements, rights-of-way, relo-cations, and disposal areas” as "LERRDs.”
. Article I.A of the Amended Cooperation Agreement defines the "Rehabilitation Effort” as:
[T]he repair and rehabilitation of damaged areas and the replacement of particular features of that portion of the Lake Ponchartrain and Vicinity, Louisiana Project, Chalmette Area Plan that lies within St. Bernard Parish Louisiana to the authorized level of design protection, including over build, as appropriate, as constructed prior to the 2005 hurricane event, in accordance with the project authority therefor, as generally described in the "Project Information Report, PL 84-99, Rehabilitation of Damaged Flood Control Works, Lake Pontchartrain, La And Vicinity Hurricane Protection *327Project, Chalmette Area Plan, St. Bernard and Orleans Parishes, La", prepared by the District Engineer, U.S. Army Engineer District, New Orleans, dated October 1, 2005.
. The amended judgment of March 20, 2012 corrected the prior judgment of January 17, 2012, which had incorrectly stated, due to a mathematical error, that the amount of compensation due to the private landowners was $2,045,430.00.
. The court notes that the parties’ Joint Stipulation of Facts states that the state trial court judgment was entered in the Borgnemouth case on June 18, 2012, but it appears from the order submitted as an exhibit to filings in this court that the judgment was entered on June 20, 2013.
.In their complaints in both of the above-captioned cases, plaintiffs also allege the breach of an implied-in-fact contract between themselves and the Army Corps, stating the court has jurisdiction to hear their claims "founded upon an express contract, an implied-in-fact contract, or, in the alternative, an indemnify agreement” be*330tween, themselves and the United States, and that defendant breached "the express and/or implied terms of the Amended Cooperation Agreement” by failing to provide compensation to the Borgnemouth and Olivier Plantation plaintiffs. Such an implied-in-fact contract, however, was not mentioned in any of plaintiff's opposition to defendant's motion to dismiss, and, at oral argument, counsel for plaintiffs conceded that no separate implied-in-fact contract exists in either of the above-captioned cases. Nor could plaintiffs have argued otherwise. This court lacks jurisdiction to hear a claim based on an implied-in-fact contract when an express contract exists. See Rick's Mushroom Serv., Inc, v. United States, 521 F.3d 1338, 1344 (Fed. Cir. 2008) (dismissing plaintiff's implied-in-fact contract claim for lack of jurisdiction on the grounds that the United States Court of Federal Claims "may only find an implied-in-fact contract when there is no express contract" (citing Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997))). In the above-captioned cases there exists an express contract as a result of the Amended Cooperation Agreement that addresses the same subject matter as plaintiffs’ alleged implied-in-fact contract, namely the Army Corps’ obligations to compensate private landowners whose property was acquired in order to repair and rehabilitate the HSPP.
. The amended complaint in case number 15-518C also included several paragraphs related to plaintiffs’ meeting with John Paul Woodley regarding possible deviations from the Army Corps’ local sponsor requirements and Mr. Woodley’s subsequent approval of this waiver that were not included in the complaint for case number 15-103C. These details were, however, eventually stipulated to in the Joint Stipulation of Facts submitted to this court in both cases.
. Defendant did not file a separate reply in case number 15-518C.
. The term "Other Non-Federal Governmental Entities” is not defined in the Amended Cooperation Agreement. None of the parties, however, alleges that the LERD at issue in the present cases was owned by such entities.
. This conclusion is bolstered by the text of St. Bernard's September 29, 2005 Commandeering Order, in which St. Bernard allegedly ''commandeered," and granted Lake Borgne right of entry to, Borgnemouth’s and the Olivier Planation landowners’ properties. In the Commandeering Order, St. Bernard stated that it was obtaining "an assignable right and easement to clear, borrow, excavate and remove soil, dirt, and other materials from said private immovable property.” Thus, like Lake Borgne in the Authorization for Entry, St. Bernard apparently believed that the LERD the Army Corps had requested included the right to remove subsurface materials from Borgnemouth’s and the Olivier Planation landowners' properties.
. Review of the filings in the state court Olivier Plantation case, provided by the parties as part of a joint Notice of Document Upload filed with the court July 17, 2015, reveals that St. Bernard and Lake Borgne made a similar claim before the trial court in the Olivier Plantation case regarding the Olivier Plantation landowners’ property.
. Defendant also argues that Lake Borgne conceded in its complaint in case number 15-103C that the LERD at issue constituted Public Sponsor LERD, comparing Lake Borgne’s statement in its complaint that "St. Bernard and the Levee District have now exhausted all legal avenues to deliver the property at issue to the Corps, free and clear of costs" with the language in Article III.A.l of the Amended Cooperation Agreement that ”[t]he Public Sponsors shall provide right of entry to all LERD that they own, claim, or control ... in a manner that is free and clear of any liens, defects of title, or encumbrances.” The quoted statement from Lake Borgne's complaint comes immediately after four paragraphs in which Lake Borgne describes the bare outlines of the state court Borgnemouth case: Borgnemouth filed suit in state court seeking just compensation from St. Bernard and Lake Borgne for the borrow material removed by the Army Corps; the state court found St. Bernard and Lake Borgne jointly liable; St. Bernard and Lake Borgne unsuccessfully appealed this decision to the Louisiana Court of Appeal; and the Louisiana Court of Appeal denied St. Bernard’s and Lake Borgne’s writ applications. The portion of the complaint quoted by defendant is simply stating the facts, i.e., plaintiffs tried and failed to prove ownership over the LERD at issue in state court. Moreover, as discussed below, that plaintiffs made such an argument in state court does not change any obligations the Army Corps had under the Amended Cooperation Agreement with respect to the LERD at issue in the above-captioned cases. That Lake Borgne used the same "free and clear” phrase as was used in the Amended Cooperation Agreement with regard to Public Sponsor LERD is not enough to transform their statement of fact regarding the Borgnemouth case into an admission that the LERD at issue in that and the present case is Public Sponsor LERD, an as yet undetermined issue.
. Additionally, while not dispositive, the stipulated facts reveal, as plaintiffs argue, that Lake Borgne and St. Bernard’s actions in delivering the right of entry to the LERD at issue to the Army Corps were consistent with the process outlined in the in the Amended Cooperation Agreement for Private LERD. Under Article III. A.3 of the Amended Cooperation Agreement, the Public Sponsors were to provide right of entry to Private LERD by first "securing] or causing] to *344be secured an executive commandeering order or orders from the President of St. Bernard Parish, Louisiana, which said order or orders shall commander Private LERD, in accordance with powers set forth in La. R.S. 29:721, et.seq.,” and then "tenderling] a right of entry to the Government for the Private LERD.” As plaintiffs argue, this is the process plaintiffs followed when St. Bernard issued its September 29, 2005 Commandeering Order commandeering the LERD requested by the Army Corps and Lake Borgne its September 30, 2005 Authorization for Entry providing a right-of-entry to the Army Corps for that LERD.
. This was ultimately the conclusion arrived at by the District Court. See Olivier Plantation, LLC v. St. Bernard Parish, 744 F.Supp.2d at 588-89. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218560/ | Class Action; Post Traumatic Stress Disorder; Equal Access to Justice Act; Timeliness of Application for Fees, Expenses, and Costs; Final Judgment; Settlement Agreement.
OPINION AND ORDER
GEORGE W. MILLER, Judge
On October 10, 2012, plaintiffs filed an application for fees and costs under the Equal Access to Justice Act (“EAJA”) (docket entry 154). Defendant responded by filing a motion to dismiss plaintiffs petition for attorney fees and bill of costs (“Defi’s Mot.”) (docket entry 159, Dec. 5, 2012). Defendant’s motion challenges only the timeliness of plaintiffs’ application. Defendant does not at this time challenge whether plaintiffs are otherwise entitled to fees, expenses, and costs. Defendant instead requests, if the Court denies this motion, that the Court grant defendant an additional twenty-eight days after the Court files this Opinion to respond regarding plaintiffs’ entitlement to the fees, expenses, and costs they seek. On January 8, 2013, plaintiffs filed their response in opposition to defendant’s motion (“Pis.’ Opp’n”) (docket entry 164). Defendant filed a reply in support of its motion on February 11, 2013 (“Def.’s Reply”) (docket entry 169). The Court held oral argument on April 3, 2013. For the following reasons, the Court hereby DENIES defendant’s motion.
I. Background1
On December 17, 2008, plaintiffs filed a class action complaint (docket entry 1) seeking disability retirement pay and benefits plaintiffs claim they were owed upon separation from the military. Plaintiff class consists of men and women who served in the wars in Afghanistan and Iraq and who now suffer from Post Traumatic Stress Disorder (“PTSD”) as a result of active combat. First Am. Class Action Compl. (“FAC”) ¶ 136 (docket entry 25, Sept. 2, 2009). Plaintiffs were separated from the military based, at least in part, on a finding of unfitness to serve due to PTSD. Id, ¶ 136. Specifically, plaintiffs alleged that the United States Department of the Army, the United States Department of the Navy, and the United States Department of the Air Force (the “Service Branches”) failed to comply with applicable statutes and regulations when they separated plaintiffs from the military and assigned plaintiffs disability ratings of less than 50 percent for PTSD. Id. ¶¶ 2-3.
After several months of discussions between the parties, during which time the Court certified the class of plaintiffs (docket-entry 33, Sept. 21, 2009) and approved the parties’ proposed form of notice (docket entry 45, Dec. 18, 2009), the parties requested that the case be stayed for slightly more than one year to allow for expedited administrative proceedings. Joint Status Report & Req. for Stay (docket entry 46, Jan. 20, 2010), The Court stayed the case until February 3, 2011 and ordered the parties to file monthly status reports describing the status of the administrative review of plaintiffs’ military records (docket entry 47, Jan. 21,2010).
On January 28, 2011, plaintiffs filed a motion requesting that the Court lift the stay (docket entry 89) as well as a motion for summary judgment (docket entry 90). The Court granted plaintiffs motion to lift the *414stay (docket entry 93, Feb. 14, 2011). Before the Court could address plaintiffs’ motion for summary judgment, however, the parties requested that the Court once again stay the ease, this time so that the parties could negotiate a settlement. Joint Mot. to Stay (docket entry 99, Mar. 22, 2011). The Court stayed the case (docket entry 100, Mar. 24, 2011), and on July 15, 2011 the parties filed a settlement. agreement (the “Settlement Agreement”) (docket entry 113).
On December 22, 2011, the Court approved the Settlement Agreement between the United States and the class of plaintiffs in this case. 102 Fed.Cl. 619. The Settlement Agreement categorized class members to tailor relief to each group based on, among other factors, whether plaintiffs had received PTSD disability ratings, whether plaintiffs had received military review board decisions, and whether plaintiffs had been placed on the Temporary Disability Retirement List. Settlement Agreement ¶¶ 7-19. In general, the terms of the Settlement Agreement provide that the Service Branches will change class members’ .military records to reflect that they were assigned a 60 percent disability rating for PTSD. Id. ¶¶ 6,16,19.
The Settlement Agreement provides that the Court will maintain jurisdiction over each plaintiffs claim until that plaintiffs military records are corrected and his or her claim is dismissed:
The parties agree that the Court will maintain jurisdiction of the claims brought by claimants listed in Exhibits A and B until the parties submit to the Court a joint status report that lists (in filings made under seal) the names of those plaintiffs whose military records have been changed pursuant to the agreed upon terms above, and as set forth in the Exhibits to this agreement. By submitting the list of names to the court under cover of these joint status reports, the parties further agree that these plaintiffs’ claims can be dismissed from the case with prejudice, consistent with paragraph 2 of this agreement, and with a provision incorporating the terms of this Settlement Agreement in the order of dismissal.
Settlement Agreement ¶ 20. The Settlement Agreement requires the parties to file a joint status report within sixty days of the Court’s final approval of the agreement and every ninety days thereafter. Id.2 Additionally, the parties agreed that “[njothing in th[e] Settlement Agreement shall preclude Plaintiffs from making an application for fees or other applicable relief under [EAJA] nor from receiving an award pursuant to the EAJA and the government does not waive any defenses to any such EAJA application nor concede or admit any entitlement under EAJA, should such an application be made.” Settlement Agreement ¶ 2.
Plaintiffs filed their application for fees and costs under EAJA on October 10, 2012. Defendant asserts that the Court should “dismiss” plaintiffs’ application because it was filed more than thirty days after the Court approved the Settlement Agreement.
II. Analysis
EAJA requires the party seeking an award of fees to file its application within thirty days of final judgment. 28 U.S.C. § 2412(d)(1)(B). The parties dispute whether there has been any “final judgment” in this case. Plaintiffs argue that there has been no final judgment because their claims have not been dismissed. Pis.’ Opp’n 7-8, 10-11. Defendant responds that the Court will never be entering judgment because the remedy plaintiffs obtained in the Settlement Agreement is procedural rather than an immediate monetary award. Therefore, according to defendant’s argument, the Court’s approval of the Settlement Agreement was a final judgment for EAJA purposes. Def.’s Reply 7-8.
EAJA’s partial waiver of sovereign immunity must be “strictly construed.” Ardestani v. I.N.S., 502 U.S. 129, 137, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991). The technical aspects of the waiver, including the timing provisions, however, are “interpreted broadly” to avoid creating a “trap for the unwary.” *415Impresa Construzioni Geom. Domenico Garufi v. United States, 531 F.3d 1367, 1371 (Fed.Cir.2008) (quoting Myers v. Sullivan, 916 F.2d 659, 669 (11th Cir.1990)); accord H.R. Rep. No. 99-120(I), at 18 n.26 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 146 n.269.
EAJA defines “final judgment” as “a judgment that is final and not appealable, and includes an order of settlement.” 28 U.S.C. § 2412(d)(2)(G).3 The Settlement Agreement contemplates that the parties will submit to the Court lists of plaintiffs whose military-records have been corrected pursuant to the terms of the agreement. Settlement Agreement ¶ 20. The Court will then dismiss with prejudice the claims of those plaintiffs whose military records have been corrected. Id. Yet, at the time plaintiffs filed their application for fees, no such lists had been submitted to the Court. While the parties submitted their first such list on April 29, 2013, no plaintiffs claim has yet been dismissed. Accordingly, the parties’ only dispute is whether the Court’s Opinion approving the Settlement Agreement constitutes a “final judgment” for EAJA purposes or whether no such final judgment has yet been entered.
There appears to be no’prior case directly answering the question of when approval of a settlement agreement — while the court continues to maintain jurisdiction over the plaintiffs claims until they are dismissed pursuant to the terms of the agreement — is a final judgment for EAJA purposes.4 Both parties agree, however, that “final judgment turns on “whether any issues remain to be decided by the [C]ourt.’” Def.’s Reply 7 (quoting Pls.’s Resp. 10 (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945))).5
Issues of implementation of the Settlement Agreement remain to be decided by *416the Court. “[T]he parties agreed that this Court will retain jurisdiction over the claims [after approval of the Settlement Agreement] in order to address any issues that may arise regarding the settlement’s implementation.” 102 Fed.Cl. at 625 (emphasis added). Indeed, the parties have been negotiating implementation issues raised in two motions to enforce the Settlement Agreement plaintiffs have filed (docket entry 167, Feb. 6, 2013; docket entry 173, Mar. 14, 2013). At a minimum, the Settlement Agreement requires that the Court must still dismiss plaintiffs’ claims once those plaintiffs receive the relief required by the Settlement Agreement. Settlement Agreement ¶ 20.
Defendant’s proposed treatment of the Court’s approval of the Settlement Agreement as a final judgment would conflict with the general rule that dismissal of all claims is a prerequisite for a final judgment (for purposes of an appeal). Silicon Image, Inc. v. Genesis Microchip Inc., 395 F.3d 1358, 1363 (Fed.Cir.2005) (“[E]ven in a settled case, a final judgment must obtain. In order to satisfy this requirement, the trial court must dismiss, with or without prejudice, all of the claims as a predicate to a final judgment before appellate jurisdiction may lie to challenge any matter relating to the settlement.”). Accordingly, the fact that courts’ approvals of voluntary dismissal agreements constitute final judgments for EAJA purposes does not conflict with the conclusion that the Court’s approval of the Settlement Agreement in this case was not a final judgment. Defendant cites Bryan v. Office of Personnel Management, in which the Tenth Circuit held that the parties’ voluntary dismissal started the thirty-day EAJA clock running. 165 F.3d 1315, 1320-21 (10th Cir. 1999). Unlike in Bryan, the Settlement Agreement in this ease did not “terminate[ ] the civil action.” Id. at 1321. Rather, it set out a procedure for eventual dismissal, and that procedure has not yet been completed. Settlement Agreement ¶ 20.
The parties dispute the significance of cases from other forums finding the thirty-day EAJA filing clock starts to run upon approval of a settlement agreement or other similar agreement. See Jennings v. Brown, 7 Vet.App. 201 (1994); Application Under Holzbau, ASBCA No. 33185, 88-2 BCA ¶ 20,797. Yet these cases show only that approval of certain settlement agreements can constitute a § 2412(d)(2)(G) final judgment. In both eases, final judgment, or the equivalent, was entered contemporaneously with approval of the parties’ agreements. Jennings, 7 Yet. App. at 203; Holzbau, 88-2 BCA ¶ 20,797 (stating that “the Board’s decision sustaining the appeal[] thereby approved] the settlement, and finally disposed] of the appeal”). Here, in contrast, the Court did not enter judgment or dismiss any claims when it approved the Settlement Agreement.
While the Court did not remand this case, the Court’s conclusion that approval of the Settlement Agreement was not an EAJA final judgment is consistent with cases in which a court maintains jurisdiction during a remand to an agency. In Social Security disability benefits cases, the district court’s remand order is a final judgment when the remand requires the district court to relinquish jurisdiction, Shalala v. Schaefer, 509 U.S. 292, 300, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), but not when the district court maintains jurisdiction during the remand. Id. at 300 n.4, 113 S.Ct. 2625. That the Settlement Agreement was not a final judgment is therefore consistent with treatment of remand orders in such cases.
Moreover, treating the Settlement Agreement as a final judgment would frustrate the purpose of EAJA. “Congress enacted EAJA ... ‘to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.’ ” Scarborough v. Principi, 541 U.S. 401, 406, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (quoting H.R. Rep. No. 96-1005, at 9). If the Settlement Agreement were a final judgment, plaintiffs would be unable to recover fees that related to implementation of the settlement but occurred more than thirty days after the Court’s approval. Yet the Court has already retained jurisdiction well beyond that time period. A period of unavailable fees would frustrate Congress’s purpose of eliminating barriers to plaintiffs’ legal representa*417tion in vindication of their rights, Cf. Sullivan v. Hudson, 490 U.S. 877, 890, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) (“[W]e find it difficult to ascribe to Congress an intent to throw the ... claimant a lifeline that it knew was a foot short. Indeed, the incentive which such a system would create for attorneys to abandon claimants ... runs directly counter to long established ethical canons of the legal profession.”).
Finally, defendant argues that the Court’s conclusion that the Settlement Agreement ■was not a final judgment for EAJA purposes “effectively read[s] out the term ‘settlement order’ in the EAJA rule, which also would violate the canon of statutory construction that a statute should not be interpreted in a manner that would cause a term to become meaningless or ‘render one part inoperative.’ ” Def.’s Reply 2-3 n.2 (quoting Dep’t of Revenue of Or. v. ACF Indus., 510 U.S. 332, 333, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994)). EAJA’s definition of “final judgment” is “a judgment that is final and not appealable, and includes an order of settlement.” 28 U.S.C. § 2412(d)(2)(G). Of course, approvals of some settlement agreements satisfy EAJA’s definition of “final judgment.” But it is not true that approval of every settlement agreement is a final judgment. Hadad v. Scharfen, No. 08-22606, 2010 WL 625297, at *2 (S.D.Fla.2010) (“It is incorrect to state that an order of settlement is, by definition, a ‘final judgment’ under the EAJA The proper reading of 28 U.S.C. § 2412(d)(2)(G) is that an order of settlement can be a ‘final judgment’ under the EAJA, if it is otherwise final and not appealable.”). The Court only finds here that approval of the Settlement Agreement was not a final judgment, not that approval of other settlement agreements could never produce final judgments.
Defendant argues in its reply brief that plaintiffs’ application is premature and that the use of fees plaintiffs suggest may be barred by the Anti-Assignment Act. Def.’s Reply 8-10. These arguments were not raised in defendant’s motion, which asserted that plaintiffs filed their application after EAJA’s thirty-day deadline had expired. Def.’s Mot. 3-4. In its motion, however, defendant requested an extension of twenty-eight days after the Court files this Opinion to file “a detailed response addressing the merits of the Sabo plaintiffs’ application for fees and bill of costs.” Id. at 5. Defendant’s requested extension is GRANTED. The Court will address these arguments, if defendant chooses to pursue them, upon consideration of whether plaintiffs are entitled to the fees, expenses, and costs they seek.
CONCLUSION
Because there has been no final judgment in this case, plaintiffs’ application for fees, expenses, and costs was not filed after the expiration of the thirty-day deadline of § 2412(d)(1)(B). Defendant’s motion to dismiss is accordingly DENIED. The Court ORDERS defendant to file its response to plaintiffs’ application for fees and costs by Wednesday, May 29,2013.
IT IS SO ORDERED.
. For a complete recitation of the facts of this case, see Sabo v. United States, 102 Fed.Cl. 619, 621-26(2011).
. The parties began submitting these reports after the Court's approval of the Settlement Agreement. It was not until April 29, 2013, however, that the parties filed a status report (docket entry 184) that included a list of plaintiffs whose claims could be dismissed.
. EAJA does not further specify what settlement agreements do or do not constitute final judgments. The House Report accompanying a 1985 amendment to EAJA, however, adds: "If a settlement is reached and the fee award is not part of the settlement, then the thirty-day period would commence on the date when the proceeding is dismissed pursuant to the settlement or when the adjudicative officer approves the settlement.” H.R. Rep. No. 99-120(1), at 18 n.26. The parties dispute which of the two triggering events mentioned in the House Report — approval of the Settlement Agreement or dismissal of plaintiffs' claims pursuant to the Settlement Agreement— applies in this case.
. This is not, however, the first time that circumstances similar to this case have arisen. In Reich v. Walter W. King Plumbing & Heating Contractor, Inc., 98 F.3d 147, 150 (4th Cir.1996), the parties did not dispute the timeliness of the plaintiff's application for EAJA fees — including fees related to settled claims — filed eight months after partial settlement which required the court to retain jurisdiction over unsettled claims. In Dunn v. United States, the Third Circuit held that the EAJA clock started running upon entry of a consent judgment pursuant to which the court retained jurisdiction to enforce the terms of the agreed upon judgment. 775 F.2d 99, 105 (3d Cir. 1985). That agreement, however, was in the form of a consent judgment, not a settlement agreement contemplating dismissal of plaintiffs’ claims at a later date. Id. Additionally, the plaintiffs filed their fee petition within thirty days of the consent judgment. Id. at 104. Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1 (1st Cir.2011), also involved facts similar to those of this case. On September 18, 2008, the district court entered a "final approval order” of the parties' settlement agreement. Id. at 7. The agreement provided that the district court would "retain jurisdiction to hear and adjudicate noncompliance motions.” Id. The plaintiffs filed their motion for fees and costs on June 2, 2009. Brief of Defendants-Appellants, Hutchinson, 636 F.3d 1, (No. 10-1268), 2010 WL 5145936, at *12. The First Circuit treated 42 U.S.C. § 12205 — which, like EAJA, requires a final judgment — as the operative statute under which the plaintiffs applied for fees. 636 F,3d at 8 n.l. The defendants argued only that the application was too early, not too late, because the court’s approval order did not constitute a final judgment. Id. at 11.
.The issue in Catlin was whether a decision was a "final judgment” for purposes of appealability, not an EAJA "final judgment.” Appealability, however, also requires a "final judgment.” See Melkonyan v. Sullivan, 501 U.S. 89, 95, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991) (discussing the traditional usage of “final judgment” as one that is "final and appealable”); Rivera Sanchez v. Sec'y of Health & Human Servs., 786 F.Supp. 147, 148 (D.P.R.1992) (citing Melkonyan, 501 U.S. at 95, 111 S.Ct. 2157) ("'Final judgment' under the EAJA is a judgment rendered by a court that terminates the civil action for which EAJA fees may be received.”); Black's Law Dictionary 919 (9th ed. 2009) (defining "final judgment” as "[a] court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees)”). Of course, a judgment does not become final for EAJA puiposes until any appeal is also completed or the time for an appeal has run. Impresa, 531 F.3d at 1369. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218561/ | *3ORDER
ELAINE D. KAPLAN, Judge, U.S. Court of Federal Claims
Pending before the Court are two motions in limine: one filed by the government objecting on the basis of the attorney-client privilege and the work product doctrine to plaintiffs use of various exhibits and the other filed by plaintiff, (“WB”), requesting in camera review of the exhibits at issue in the government’s motion.
For the reasons set forth below, each party’s motion in limine is GRANTED IN PART and DENIED IN PART.
A. BACKGROUND
Weston/Bean Joint Venture (“WB”) entered into a contract with the US Army Corps of Engineers (“the government” or “Corps”) on April 29, 2004 to dredge the federal channel of the Miami River. Following performance of the contract, WBJV filed suit in this Court alleging that when it began to perform its work under the contract, the subsurface conditions it found were materially different from those indicated in the contracting documents. WB seeks an equitable adjustment of the contract amount, a time extension of 348 days, and $12,423,937.23 in damages, plus interest, costs, and attorney fees. Pl.’s Resp. 1-2.
Specifically, WB alleges that while the contract indicated that the sediments it would be required to dredge and process would consist of fine or coarse particles less than one to two inches in size, the actual sediments WB encountered contained significant amounts of large gravel, as well as cobbles and boulders. Compl. (No. 11-31) (hereinafter “Compl. 1”) ¶¶ 67-73, 96-98; Pl.’s Resp. 9-11. It further claims that these allegedly unforeseeable conditions required it to incur significant excess costs related to the processing and disposal of the sediments. Compl. 1 ¶¶ 106-113, 116-119; Compl. (No. 11-360) (hereinafter “Compl. 2”) ¶ 83; Pl.’s Resp. 11-13. WB also claims that certain work that the Army Corps of Engineers directed it to perform in connection with the project constituted a constructive change of the contract, that the government provided defective specifications for the project which resulted in damage to certain seawalls, that the government breached its implied duty to cooperate, that it unreasonably failed to grant extensions of time to complete the work, and that the government improperly retained or assessed liquidated damages. Compl. 1 ¶¶ 102-105, 118; Compl. 2 ¶¶ 70-74, 80, 102, 132-137; Pl.’s Resp. 11-75.
B. DISCUSSION
In its motion in limine and supporting memorandum filed under seal, -the government challenges the admissibility of PX 1261 1 PX 1262, PX 1280, PX 1333, PX 1335, PX 1337, PX 1363, PX 1370, PX 1371, PX 1405, PX 1422, and PX 1423 on the basis of the work product doctrine; and PX 1338, PX 1339, PX 1406, and PX 1424 on the basis of both the work product doctrine and the attorney-client privilege. With the exception of *4PX 1424, these documents consist of email discussions between Corps personnel regarding the investigation and analyses of WB’s administrative claims, draft versions of the Corps’ technical analyses, draft letters by agency employees addressing WB’s claims, and a summary of issues that were discussed both during and after a meeting between the Corps and WB in March 2010.
1. Work Product Doctrine
Pursuant to the work product doctrine, “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ... RCFC 26(b)(3)(A). The work product doctrine “promotes a fair and efficient adversarial system by protecting ‘the attorney’s thought processes and legal recommendations’ from the prying eyes of his or her opponent.” In re Echostar Commc’ns Corp., 448 F.3d 1294, 1301 (Fed.Cir.2006) (quoting Genentech, Inc. v. U.S. Int’l Trade Comm’n, 122 F.3d 1409, 1416 (Fed.Cir.1997)). “The attorney work-produet rule is indubitably applicable to government attorneys in litigation.” Yankee Atomic Elec. Co. v. United States, 54 Fed.Cl. 306, 316 (2002) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).
“In order to qualify as work product, the material or report must come into existence because of the litigation or some articulable claim has arisen that is likely to lead to litigation.” Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610, 614 (N.D.Ill.2000); accord Hickman v. Taylor, 329 U.S. 495, 497, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (work product doctrine protects against the discovery of “oral and written statements of witnesses, or other information,” produced “in the course of preparation for possible litigation after a claim has arisen.”). “[M]aterials prepared in anticipation of litigation by any representative of the client are protected, regardless of whether the representative is acting for the lawyer.” Caremark, 195 F.R.D. at 615; accord Advisory Committee’s Explanatory Statement Concerning Amendments of the Discovery Rules, 48 F.R.D. 487, 502 (1970) (“Subdivision (b)(3) reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf.”). “Thus, whether a document is protected depends on the motivation behind its preparation, rather than on the person who prepares it.” Caremark, 195 F.R.D. at 615.
As the Second Circuit observed in United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir.1998), “the formulation of the work-product rule used by the Wright & Miller treatise, and cited by the Third, Fourth, Seventh, Eighth and D.C. Circuits, is that documents should be deemed prepared ‘in anticipation of litigation,’ and thus within the scope of [Rule 26(b)(3)], if ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” (quoting Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024, at 343 (1994)) (emphasis added); see also Northrop Grumman Corp. v. United States, 80 Fed.Cl. 651, 654 (2008) (stating one approach to work product doctrine is whether or not the documents “would not have been prepared but for the prospect of litigation.”) (internal citations omitted).
In Northrop, applying these standards, Judge Horn held that the work product doctrine did not apply to claim research papers prepared by the government to assist the contracting officer in analyzing plaintiffs administrative claims and reaching a contracting officer’s final decision because the papers would have been prepared absent litigation. Northrop, 80 Fed.Cl. at 655. Similarly, in AAB Joint Venture v. United States, 75 Fed.Cl. 448, 455 (2007), Judge Damich rejected the government’s invocation of the work product doctrine where the government did no more than show that the analysis and evaluation of plaintiffs REA claims were done under the guidance of attorneys from the office of counsel in order to assist the contracting officer in performing his contract administration duties.
*5The Court finds the reasoning in Northrop and AAB Joint Venture persuasive and applicable here. The challenged documents addressed to the validity of the plaintiffs administrative claims would have been created whether or not the claims ultimately ended up in litigation and so were not prepared “because of’ anticipated litigation. Indeed, the government points out that the investigation itself was required by the Corps’ regulations governing the consideration of administrative claims by the contracting officer, Thus, under the Engineer FAR Supplement (EFARS):
A contract claim for which all certification requirements have been met shall be subject to a thorough fact finding investigation conducted by appropriate staff members, including an attorney from the Office of Counsel. During this investigation, the attorney will determine the scope of the review, evaluate the relevancy and materiality of the facts considered and take appropriate measures to preserve the documentation, including written statements and affidavits.
EFARS Appendix A, Part 3, A3-203(b) (“agency manual”), available at http://www. usace.army.mil/Portals/2/doeS/EFARS.pdf. As noted in Wright & Miller, similar “statements or reports obtained about an event are often regarded as part of the general business activity” as opposed to being considered attorney work product, “particularly if they are required by some legal authority.” 8 Federal Practice & Procedure § 2024.
The government argues that litigation was anticipated in this matter at the time that these documents were being generated as evidenced by the fact that counsel for the agency directed Corps employees to place litigation holds on documents on April 19, 2007. This contention does not persuade the Court that the work product doctrine is applicable. There is no doubt that a risk of litigation exists whenever an equitable adjustment that has been sought may be denied. Placing a litigation hold on documents in April 2007 was a prudent measure given the nature and size of the claims being asserted by WB. But it does not establish that the investigative documents generated would not have been created but for the prospect of future litigation.
In contrast, the Court concludes that PX 1424, a summary of the meeting between WB’s attorneys and the Corps, is subject to the work product doctrine. The document is attached to an email dated December 20, 2011. The document itself is dated December 9, 2011. The meeting was held and the document was generated several months after the contracting officer issued its final decision in the matter. The email also refers to the then-existing litigation and was prepared for and at the request of a USACE attorney. Accordingly, the Court GRANTS the government’s motion in limine as to PX 1424.
2. Attorney-Client Privilege
The attorney-client privilege protects “those attorney to client communications which would have a tendency to reveal the confidences of the client.” Avgoustis v. Shinseki, 639 F.3d 1340, 1344 (Fed.Cir.2011) (quoting Kenneth S. Broun, McCormick on Evidence § 89 (6th ed. 2006)). “The attorney-client privilege protects the confidentiality of communications between attorney and client made for the purpose of obtaining legal advice.” Genentech, 122 F.3d at 1415 (Fed.Cir.1997); see also Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) (“Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged.”). “The [attorney-client] privilege applies to communications ‘by the client to the attorney, whether incorporated into a communication by the client to the attorney or vice versa.’ ” Cencast Servs., L.P. v. United States, 91 Fed.Cl. 496, 502 (2010) (quoting Cities Serv. Helex, Inc. v. United States, 216 Ct.Cl. 470, 475 (1978) (en banc) (alteration omitted)). The privilege applies to attorney-to-client .communications if they “reveal, directly or indirectly, the substance of any confidential communication” from the client. Cencast, 91 Fed.Cl. at 502 (quoting Am. Standard Inc., v. Pfizer Inc., 828 F.2d 734, 745 (Fed.Cir.1987). “The attorney-client privilege does not shield all information that a client divulges to an attorney, or vice versa, but rather is limited to instances where legal advice is sought or rendered.” *6Northrop, 80 Fed.Cl. at 655 (internal quotation omitted).
The attorney-client privilege “en-courag[es] full and frank communication between attorneys and their clients” and “recognizes that sound legal advice ... depends upon the lawyer’s being fully informed by the client.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The privilege “belongs to the client, who alone may waive it,” In re Seagate Tech., LLC, 497 F.3d 1360, 1372 (Fed.Cir.2007) (en banc), and “covers confidential communications from agency personnel to an agency attorney for the purpose of seeking legal advice.” Cencast, 91 Fed.Cl. at 503; accord Deseret Mgmt. Corp. v. United States, 76 Fed.Cl. 88, 91 (2007) (“The attorney-client privilege applies not only to private individuals, but also to government employees. Communications by the Department of Justice to a client agency and by that agency’s own attorneys to non-attorney personnel seeking or being provided with legal advice are entitled to protection under the attorney-client privilege.”).
To assert the privilege here, the government must show that the person to whom the communication was made is a lawyer acting in that capacity and that the “communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (e) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.” AAB Joint Venture, 75 Fed.Cl. at 456 (2007) (quoting Energy Capital Corp. v. United States, 45 Fed.Cl. 481, 484-85 (2000)).
The government challenges PX 1338, PX 1339, PX 1406, and PX 1424 on the basis of attorney-client privilege. PX 1338 and 1339 involve email discussions between various Corps employees pursuant to preparation of technical analyses of WB’s claim. WB concedes that a sentence in PX 1338 regarding the Office of Counsel’s determination and the latest email in the PX 1339 chain should be redacted because they appear to reflect the legal advice of Elizabeth Oppenheimer Vavri-ea. After reviewing the document, the Court determines that the attorney-client privilege is properly invoked here as to the entire document. The first sentence of the email chain in PX 1338 and the latest email in PX 1339, which WB has already conceded are subject to the attorney client privilege, provide important context for the rest of the email discussion. The emails relate to counsel’s advice to agency’s personnel on plaintiffs REA claims and are all part of the same discussion.
PX 1406 is not subject to the attorney-client privilege. There is no evidence of communication with an attorney in the emails. Neither Elizabeth Oppenheimer Vav-rica nor Carolyn Fox (both counsels for the agency at this time) are copied on these emails. The email discussions involve communications with members of the Corps and relate to the investigation of WB’s claims. There is no indication that the subject of the discussion relates to legal advice from agency counsel or reveals client communications requesting such advice.
PX 1424 is subject to the attorney-client privilege. First it is an attachment to an email from agency counsel. In the email, counsel describes the attachment as “a detailed summary for me of our meeting with WBJV and them attorneys”. The document was prepared by an employee of the Corps for the purpose of helping the Corps secure assistance in legal proceedings instituted by WB.
C. CONCLUSION
For the foregoing reasons, the Court sustains the government’s objections to the following exhibits: PX 1338, PX 1339, and PX 1424 (attorney-client privilege as to all three, work product as to 1424). It overrules the government’s objections to the remaining exhibits and rejects the government’s request for a motion in limine as to those documents: PX 1261, PX 1262, PX 1280, PX 1333, PX 1335, PX 1337, PX 1363, PX 1370, PX 1371, PX 1405, PX 1406, and PX 1423. Accordingly, the government’s motion in limine and that *7of the plaintiff are GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.
. The order refers to WB’s exhibits by WB’s revised exhibit numbers, as WB has done in its motion in limine requesting review under seal of certain trial exhibits, filed on June 11, 2014, ECF No. 94. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218562/ | (Bid Protest)
Stay Pending Appeal; Rule 62(c); Pass-Fail Responsibility-type Evaluation Factors; Referral to Small Business Administration for Certifícate of Competency; Injunctive Relief.
OPINION AND ORDER DENYING INJUNCTION PENDING APPEAL
WILLIAMS, Judge.
Plaintiff Lawson Environmental Services, LLC (“Lawson”) seeks a stay of this Court’s judgment in Lawson Environmental Services, LLC v. United States, 126 Fed.Cl. 233 (2016), and an injunction pending appeal to stop the Environmental Protection Agency (“EPA”) from allowing Coastal-Enviroworks Joint Venture (“Coastal-Enviroworks”) to begin performing environmental remediation services in lead-contaminated residential properties in Washington County, Missouri. EPA initially solicited offers to perform these remediation services on July 8, 2014, and, after a series of protests and corrective action, awarded a contract to Coastal-Enviroworks on September 29, 2016. Plaintiff protested this award at the Small Business Administration (“SBA”) and the Government Accountability Office (“GAO”) before filing a complaint in this Court on December 18, 2015. At that time, EPA voluntarily agreed to stay performance until March 30, 2016.
The Court entered judgment in favor of the Government and denied Lawson’s motion for judgment upon the administrative record on March 26, 2016. The Court found that EPA correctly referred Coastal-Enviroworks to SBA for a Certificate of Competency (“COC”) instead of rejecting its proposal as nonresponsive, and that SBA acted reasonably in granting Coastal-Enviroworks a COC.
Almost two months later, on May 20, 2016, Plaintiff filed a notice of appeal to the United States Court of Appeals for the Federal Circuit, and on May 31, 2016, Plaintiff filed the subject motion for stay and injunction pending appeal.2 For the reasons set forth below, the Court denies Plaintiffs motion.
Discussion
Pursuant to Rule 62(c) of the Rules of the United States Court of Federal Claims, “[w]hile an appeal is pending from ... a final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Rule 62(c). Because Plaintiff in its complaint requested only declaratory relief, the Court did not technically deny an injunction. See Compl. 33; 126 Fed.Cl. at 236. Nevertheless, by declining to declare the award illegal, the Court refused to set aside the contract or grant what would have been *17tantamount to injunctive relief. As such, Rule 62(e) is the proper procedural vehicle for the relief Plaintiff now séeks.
An injunction pending appeal pursuant to Rule 62(c) is an extraordinary remedy, and the Court will not grant such an injunction lightly. RLB Contracting, Inc. v. United States, 120 Fed.Cl. 681, 682 (2015); see also Akima Intra-Data, LLC v. United States, 120 Fed.Cl. 25, 27 (2015); Acrow Corp. of Am. v. United States, 97 Fed.Cl. 182, 183 (2011). As with injunctions at other stages of an action, the movant carries the burden of persuasion. Akima Intra-Data, 120 Fed.Cl. at 27 (citing OAO Corp. v. United States, 49 Fed.Cl. 478, 480 (2001)).
Similar to the Court’s consideration of a request for a preliminary injunction, the Court will consider the following factors when determining whether to grant an injunction pending appeal: whether the movant has shown that (1) the movant is likely to prevail on the merits of the appeal; (2) the movant will be irreparably harmed absent an injunction; (3) the injunction will not substantially injure the other interested parties; and (4) issuance of an injunction is in the public interest. Int’l Res. Recovery, Inc. v. United States, 60 Fed.Cl. 1, 6 (2004) (citing FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993)); RLB Contracting, 120 Fed.Cl. at 682 (citing Acrow Corp. of Am., 97 Fed.Cl. at 184); Akima Intra-Data, 120 Fed.Cl. at 27-28 (citing Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 513 (Fed.Cir.1990)). The Court’s consideration of these four factors is “flexible”—no single factor is determinative, and the Court need not give each factor equal weight. Standard Havens Prods., 897 F.2d at 512; see also Akima Intra-Data, 120 Fed.Cl. at 28; Int’l Res. Recovery, 60 Fed.Cl. at 6.
Plaintiff Has Failed To Show It Has A Likelihood Of Success On The Merits Of Its Appeal
Plaintiff contends that it is likely to succeed on the merits of its appeal for three reasons:
(1) The Court erred in determining that Coastal-Enviroworks failed to meet a responsibility-type factor that was subject to referral to SBA, rather than a mandatory solicitation requirement that rendered Coastal-Enviroworks’ proposal nonresponsive;
(2) The Court incorrectly found that EPA acted reasonably in accepting an affidavit from one of Coastal-Enviroworks’ proposed key personnel; and
(3) The Court failed to fully review both EPA’s referral of Coastal-Enviroworks to SBA and SBA’s subsequent issuance of a COC.
“[Likelihood of success in the appeal is not a rigid concept.” Standard Havens Prods., 897 F.2d at 512 (citing Wash. Metro. Area Transit Comm’n v. Holiday Tours, 559 F.2d 841, 844 (D.C.Cir.1977)). For instance, where a movant presents legal issues of first impression, the likelihood of success on appeal is impossible to determine, and the Court may grant an injunction pending appeal so long as the remaining factors weigh sufficiently in the movant’s favor. Akima Intra-Data, 120 Fed.Cl. at 28 (citing Jacobson v. Lee, 1 F.3d 1251 (Fed.Cir.1993); see also Acrow Corp. of Am., 97 Fed.Cl. at 184 (“[T]he court may grant an injunction under RCFC 62(c) when the question raised is novel or close, especially when the case will be returned to the trial court should the movant prevail on appeal.”).3 However, where a mov-ant seeks to “relitigate several issues that the opinion addressed fully and resolved” or otherwise has failed to raise “issues with the opinion that are so novel as to merit the extraordinary remedy of injunctive relief pending appeal,” the Court will deny an injunction. Acrow Corp. of Am., 97 Fed.Cl. at 185.
In its current motion, Plaintiff recasts its previously raised arguments. Compare Pl.’s Mot. 5-18 with Pl.’s Mot. for J. on the AR 12-40. None of Plaintiffs arguments below implicated novel or close questions.
*18The gravamen of Plaintiffs motion is that the Court erred in upholding EPA’s referral of Coastal-Enviroworks to SBA for a COC determination. Plaintiff has not demonstrated this decision was erroneous, an issue of first impression, or a close question. Rather, this Court noted that Plaintiffs challenge to EPA’s referral to SBA for a COC “is not a gray area.” Lawson, 126 Fed.Cl. at 246.4 In the small business context, where the offeror fails a solicitation requirement that encompasses a traditional responsibility factor, the proper course is for the agency to refer the matter to SBA As the Court explained in its opinion:
“[W]here traditional responsibility factors are employed as technical evaluation criteria and the evaluation renders an offeror’s proposal flatly ineligible for award, the agency has effectively made a determination that the small business offeror is not a responsible contractor capable of performing the solicitation requirements.” Optimization Consulting, Inc. v. United States, 115 Fed.Cl. 78, 100 (2013) (internal citation and quotation marks omitted). In those circumstances, the agency must refer the matter of the firm’s responsibility to SBA for a Certificate of Competency determination. Id.; Planet Space, Inc. v. United States, 92 Fed.Cl. 520, 546 (2010) (finding that, where “responsibility-type concerns” result in an offeror’s exclusion from the competition, “a de facto non-responsibility determination has been made and, in the case of a small business, referral to the SBA is required”).
Lawson, 126 Fed.Cl. at 245.
, Here, the evaluation factor for Key Personnel fell within the realm of a responsibility determination and was a pass-fail factor, and failure would have rendered Coastal-Enviroworks ineligible, warranting referral to SBA.
In reiterating its argument that Coastal-Enviroworks’ proposal should have been rejected as nonresponsive, Plaintiff asserts that the Court misinterpreted Manus Medical, LLC v. United States, 115 Fed.Cl. 187 (2014). Pl.’s Mot. 7-9, 13. Plaintiffs argument lacks merit. As explained in the Court’s opinion:
Plaintiff relies on Manus Medical, LLC v. United States, 115 Fed.Cl. 187 (2014) to argue that Coastal-Enviroworks’ proposal should have been rejected as nonrespon-sive. In Manus, the agency eliminated the lowest-priee offeror from the competition because the offeror failed to submit a complete proposal and omitted information necessary for the evaluation of two technical factors. 115 Fed.Cl. at 192. As such, the agency could not make a determination on technical acceptability and rejected the proposal as deficient for omitting required information. Here, in contrast, the agency could and did evaluate Coastal-En-viroworks’ technical proposal on a responsibility-type factor and failed Coastal-En-viroworks for noncompliance, requiring a referral to SBA.
Lawson, 126 Fed.Cl. at 246 n.4.5
Because the EPA evaluation team disqualified Coastal-Enviroworks’ proposal from consideration on the basis of this responsibility-type factor, removing Coastal-Enviroworks from the competition, EPA properly referred its decision to SBA for a COC.
*19The Court has reviewed Plaintiffs other arguments in support of its motion and concludes that Plaintiff merely “seeks to litigate issues that the opinion fully addressed and resolved.” Acrow Corp. of Am., 97 Fed.Cl. at 185. Accordingly, Plaintiff has failed to show a likelihood of success on the merits of its appeal.
Other Factors Warrant Denial Of Injunc-tive Relief
In this Court’s view, Plaintiff has not demonstrated any likelihood of success on the merits. But even if it had, other factors militate against injunctive relief.
Plaintiff argues that it will be irreparably harmed absent an injunction pending appeal because, should Coastal-Enviroworks begin performance, Plaintiff will be precluded from obtaining meaningful relief. Pl.’s Mot. 18-19; see, e.g., Hosp. Klean of Tex., Inc. v. United States, 65 Fed.Cl. 618, 624 (2005). However, Plaintiffs claim of irreparable harm is belied by its lack of urgency in seeking this injunction. Plaintiff did not file its request for an injunction pending appeal until over two months after this Court issued its decision on March 25, 2016, and EPA’s voluntary stay expired. The challenged contract has now been actively ongoing for over three months.
In contrast, the injury to the Government should this Court issue an injunction is palpable. EPA issued the solicitation at issue nearly two years ago. The Washington County sites at which Coastal-Enviroworks is performing remedial actions were added to the National Priority List in 2011. Continued delay in this procurement for vital lead remediation services would impede EPA in its mission to protect human health and the environment pursuant to the Comprehensive Environmental Compensation and Liability Act, the National Oil and Hazardous Substances Pollution Contingency Plan, and other statutes.
Plaintiff asserts, without support, that EPA will suffer minimal injury because the agency may currently procure the necessary services through delivery orders issued under another contract. The record, however, establishes that reliance on this contract is misplaced because the scope of Plaintiffs cited contract covers a different geographical region, and the contract is funded through EPA’s “removal funds” which are separate from—and scarcer than—the agency’s “remediation funds,” which apply to the contract at issue. See Gunn Decl. ¶ 5; Buchholz Deck ¶¶ 2-4. Given the need for the procurement to proceed after having been delayed for over a year due to protests and appeals, the balance of harms weighs in favor of the Government and against issuance of an injunction.
The public interest also lies in allowing this procurement to proceed. Plaintiffs concern about the “overriding public interest in preserving the integrity of the procurement process by requiring the Government to follow its procurement regulations” is valid. Pl.’s Mot. 20 (quoting Bona Fide Conglomerate, Inc. v. United States, 96 Fed.Cl. 233, 242 (2010)). However, the evidence in this case shows that the Government did follow its procurement regulations. Further, the public has a heightened interest in continuing performance under this contract, as the contaminated soil, groundwater, surface water, and sediment at the Washington County sites have affected residences, schools, daycare centers, parks, playgrounds, and drinking water wells. Gunn Decl. ¶ 2. Continuing delay presents serious health risks to people, especially children-, who live in this area. Id. at ¶¶ 2, 7. Thus, the public interest militates against an injunction pending appeal.
Conclusion
This protest does not involve any novel or close legal questions. Plaintiff has failed to show a likelihood of success on the merits, and the balance of harms and the public interest support denying the requested in-junctive relief. Plaintiffs motion for stay and injunction pending appeal is DENIED.
. Plaintiff requests, in part, that the Court stay the execution of its judgment denying Plaintiff's request for declaratory relief. Plaintiff uses the term "stay" interchangeably with a request for an injunction pending appeal. The Court considers Plaintiffs request to stop performance as a request for an injunction pending appeal, consistent with Plaintiff's reference to Rule 62(c).
. This Court orally granted a stay pending appeal in a bid protest that raised an issue of first impression. Tr. at 32-40, CGI Fed. Inc. v. United States, No. 14-355C (Fed.Cl. Sept. 2, 2014), ECF No. 55; Order, CGI Fed. Inc. v. United States, No. 14-355C (Fed. Cl. Sept. 2, 2014), ECF No. 53.
. In a similar vein, this Court denied Plaintiffs evidentiary argument regarding consideration of the affidavit as "contrary to governing regulation.” Lawson Envtl. Servs., LLC v. United States, 126 Fed.Cl. 233, 248 (2016).
. Similarly, Plaintiff cites Centech Group, Inc. v. United States, 554 F.3d 1029 (Fed.Cir.2009) in support of its argument that Coastal-Enviro-works' proposal should have been rejected as nonresponsive. Centech is inapposite, as Centech’s proposal was properly deemed nonrespon-sive for failure to comply with the Limitation on Subcontracting clause. Centech did not involve a challenge to an agency's referral of a contractor to SBA for a responsibility assessment. Rather, Centech drove home the fundamental distinction between responsibility and responsiveness. Cen-tech instructed that whether an offeror could comply with a technical requirement is a matter of the contractor’s responsibility, whereas whether an offeror agreed in its proposal that it would comply with a technical requirement is a matter of the proposal’s responsiveness. Centech involved a quintessential example of a nonrespon-sive proposal, while this case presented a classic example of a small business offeror’s capability to meet a responsibility-type technical requirement. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218563/ | ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THOMAS C. WHEELER, Judge
Plaintiff Starr International Company, Inc. (“Starr”) commenced this lawsuit against the United States in November 2011, challenging the Government’s economic bailout and takeover of American International Group, Inc. (“AIG”) that began in September 2008. During the time periods relevant to this case, Starr was one of the largest shareholders of AIG common stock. Starr and its shareholder class members allege that the Government’s actions in acquiring control of AIG constituted a taking without just compensation and an illegal exaction in violation of the Fifth Amendment. They also allege that the Government imposed a “reverse stock split” on AIG’s shareholders, which had the effect of diluting stock ownership and giving the Government 80 percent control of the voting stock. Starr and its class seek damages from the Government in excess of $25 billion. A six-week trial is scheduled to commence on September 29, 2014.
On July 2, 2014, Defendant’s counsel filed a motion for summary judgment pursuant to Rule 56(a) of the' Rules of the United States Court of Federal Claims (“RCFC”). The motion is premised on the assertion that AIG and its directors voluntarily agreed to the Government’s proposed rescue- terms, that there is no evidence of any economic loss to the AIG shareholders, and that Starr’s illegal exaction claim is not sustainable. Regarding Starr’s “reverse stock split” claim, the Government argues that AIG proposed the stock split, its shareholders voted in favor of the split, and there is no government action on which a taking claim could be based. On July 30, 2014, Plaintiffs counsel filed a detailed and persuasive response, opposing with evi-dentiary support all of the underlying factual premises of Defendant’s motion, and refuting Defendant’s conclusions of law. On August 18, 2014, the Government filed an extensive reply.1 The issue presently before the Court is not to decide which party should prevail on the merits, but to determine whether the case can be resolved through summary judgment. The Court deems oral argument on the motion unnecessary.
Under Rule 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and *21the movant is entitled to judgment as a matter of law.” RCFC 56(a). The moving party-bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Sum-maiy judgment will not be granted if the “evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court’s function is not to weigh the evidence and determine the merits of the case presented, but to determine whether there is a genuine issue of material fact for trial. Id. at 249, 106 S.Ct. 2505.
Here, the Court commends both parties for submitting well-argued briefs supported with extensive appendices, but the bulk of the evidence presented serves to demonstrate the need for a trial. Indeed, Plaintiffs appendix to the response consisted of 151 exhibits and over 1,600 pages. Among these exhibits were excerpts from 28 depositions, underscoring a conclusion that oral testimony will be significant to the outcome of this case. For its part, the Government submitted 69 exhibits, including excerpts from 27 depositions and six expert reports. The sheer volume of material presented is a testament to the complexity of the issues before the Court. This is not a case where the parties have stipulated to an agreed set of facts and presented purely questions of law. The complexity of the submissions and the factual disagreements strongly point to the need for a trial.
The parties’ recent pretrial filings further support the Court’s conclusion that a trial is necessary. For example, the parties disputed many of each other’s proposed stipulations of fact. As the Court explained in an August 1, 2014 order (Dkt. No. 257), it is a party’s prerogative to reject proposed stipulations that it finds untrue or misleading. However, the Government’s outright rejection- of 660 of Starr’s proposed fact stipulations certainly suggests the existence of many significant factual issues. Moreover, the Government has served notice of objections to the vast majority of Plaintiffs 2,712 proposed trial exhibits. The Government’s 180-page chart of objections may reflect diligent trial preparation, but also shows further disagreement about the facts.
Finally, based upon a review of the briefs and .appendices, the Court finds that this is not a case to be decided on the papers without trial. While the motion and response have provided a useful summary of the parties’ positions, the Court needs to weigh the evidence, .make credibility determinations, and draw legitimate inferences from the facts. Likewise, the case involves complex financial and economic issues that warrant the analysis and testimony of qualified expert witnesses. Rather than deciding the case on a Rule 56 motion, the Court finds that the “better course would be to proceed to a full trial.” Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. Accordingly, the Government’s motion for summary judgment is DENIED, and trial will begin on Monday, September 29, 2014 as scheduled.
The final pretrial conference is set for Monday, September 15, 2014 at 10:00 AM in Washington, D.C. In this regard, the Court invites each party to file any proposed agenda items for this conference on or before September 8, 2015. The Court will have its own list of subjects for this conference, but will be pleased to address any additional items submitted by the parties.
IT IS SO ORDERED. .
. With the Court’s consent, and indicative of the complexity, each of the parties’ briefs exceeded the page limitations prescribed by the Court’s rules. RCFC 5.4(b) (40-page limit for opening brief, 20-page limit for reply brief). | 01-04-2023 | 07-25-2022 |
Subsets and Splits