Opinion
No. 09-384 C.
April 6, 2010
Perry L. Brock d/b/a Machine Technologies, Lynchburg, TN, pro se plaintiff.
Armando A. Rodriguez-Feo, United States Department of Justice, with whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant Director, Washington, DC, for defendant.
OPINION
Now pending before the court is defendant's motion to dismiss, filed September 29, 2009. The motion has been fully briefed and is ripe for a decision by the court. Because the court lacks subject matter jurisdiction over plaintiff's claims, his suit must be dismissed pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC).
BACKGROUND
The facts recounted here are taken from the parties' filings, and appear to be undisputed for the purpose of resolving defendant's motion to dismiss. The court makes no findings of fact in this opinion.
Beginning in the spring of 2007, plaintiff became engaged in an ongoing dispute with the DCMA quality assurance representative (QAR) assigned to the contract. Following a meeting on April 6, 2007, the QAR informed Mr. Brock that his company's quality assurance manual did not meet the requirements of ISO 9002. Compl. Ex. K. Specifically, the QAR expressed his view that ISO 9002 required the designation of an employee whose sole function would be the management of the contractor's quality system. Id. Mr. Brock expressed his disagreement with the QAR's interpretation of the relevant ISO 9002 provision and requested comments from all concurring DCMA staff members regarding the purported nonconformity. Id. Within days of that incident, Mr. Brock requested the assignment of a new QAR for all of his contracts. Id. Ex. I. DCMA did not respond to that request.
The protracted dispute between plaintiff and DCMA ultimately culminated in the filing of a formal complaint by Mr. Brock with the Small Business Administration (SBA). Compl. Ex. A. Mr. Brock asserted that DCMA had caused hardship and financial difficulties to his company, Machine Technologies, due to a lack of proper oversight and training in the ISO 9002 standard, and then effected a "cover up." Id. Mr. Brock also raised several concerns in that regard with respect to this particular QAR and his supervisors. Id. Plaintiff asserted that the QAR falsely represented that an ISO auditor at DCMA had concurred with the QAR's interpretation of ISO 9002 requirements, and that the QAR's supervisors had supported those false statements without adequately investigating the matter. Id. at 1. Mr. Brock complained that this QAR had little or no training in the ISO 9002 standard and had misplaced Mr. Brock's ISO 9002 quality manual. Mr. Brock further claimed that DCMA's refusal to assign a new QAR after plaintiff had requested removal of the troublesome QAR resulted in reprisals from that QAR. Id. Plaintiff also claimed that the QAR and his supervisors unilaterally modified the quality requirements of an earlier contract without his knowledge. Id. at 2. The SBA requested that the commander of DCMA conduct an internal investigation of Mr. Brock's complaint. Id. Ex. B at 1 (referencing SBA request to DCMA).
In a letter to the SBA dated November 17, 2008, the commander of DCMA reported the outcome of his investigation. Compl. Ex. B at 2-3. The letter set forth the commander's belief that the disagreements between Mr. Brock and DCMA regarding the applicable quality requirements of the contract were being resolved. Id. at 2. The letter also acknowledged that the prior QAR, who had died in July of 2008, had temporarily misplaced Mr. Brock's quality assurance manual. Id. The letter explained that neither the QAR nor his supervisors possessed the authority to unilaterally modify any contract. Id. at 3. On the contrary, the referenced contract was modified by the administrative contracting officer (ACO) at the direction of the procuring contracting officer (PCO) in order to remedy an omission of a required quality clause in the original contract. Id. The letter closed with assurances that DCMA would continue its efforts to work with Mr. Brock and Machine Technologies. The SBA forwarded the commander's letter to plaintiff. Id at 1.
Plaintiff subsequently submitted a second letter to the SBA, claiming that DCMA's response did not adequately address each of the allegations raised in his original complaint. Compl. Ex. C. The SBA once again referred the matter to the commander of DCMA for a response. Id. Ex. Z at 1 (referencing SBA request to DCMA). In his second letter to the SBA, dated December 19, 2008, the DCMA commander discussed the disagreement between plaintiff and the deceased QAR regarding the proper interpretation of ISO 9002. Id. at 2. The commander noted that the QAR had suggested alternative means of compliance with the contract requirements, which plaintiff had declined to adopt. Id. The commander also noted that Mr. Brock's most recent correspondence appeared to agree with the QAR's interpretation of ISO 9002, i.e., that it was difficult for a one-person business to comply with its requirements. Id. The letter explained that the PCO had directed the ACO to unilaterally modify one of Mr. Brock's earlier contracts to require compliance with ISO 9002. Id. The commander noted that plaintiff had complied with ISO 9002 in other contracts, and that the ISO 9002 requirement was subsequently removed from the contract in question by the PCO. Id. Thus, the commander opined that it was difficult to comprehend any resulting harm to plaintiff. The commander stated that he was unable to discern what relief, if any, plaintiff was seeking, and that DCMA did not have any authority to establish or modify the quality requirements in any particular contract. Id. at 2-3. The SBA forwarded the commander's second letter to plaintiff. Id. at 1.
Mr. Brock once again contacted the SBA to express his view that DCMA's internal investigation was inadequate and requested information regarding how to elevate consideration of his complaint above the level of the DCMA commander. Compl. Ex. M. For the third time, the SBA directed DCMA to respond to the allegations raised by plaintiff. Id. Ex. L (referring to SBA request to DCMA). Finally, in a short letter to the national ombudsman of the SBA, the commander of DCMA stated that
[a]fter much dialogue between the SBA, Machine Technologies and this command, Mr. Brock has been unable to articulate any harm his company has suffered, or assert what remedies he is seeking. It is evident from Mr. Brock's repeated correspondence that no matter what response is provided, he will not be satisfied. I do not believe it is productive to hold any more dialogue with Mr. Brock on this matter. Consequently, I consider this issue closed.Id. Plaintiff filed his complaint in this court on June 12, 2009.
DISCUSSION
I. Pro Se Litigants
Pro se plaintiffs are entitled to a liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiring that allegations contained in a pro se complaint be held to "less stringent standards than formal pleadings drafted by lawyers"). 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 pleading." 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. 1994)). Here, the court has thoroughly examined the complaint, the response to defendant's motion to dismiss and the surreply to defendant's reply, and has attempted to discern all of the legal arguments contained therein.II. Jurisdiction and Standard of Review
In rendering a decision on a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed factual allegations to be true and must construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds v. Army Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). The relevant issue in a motion to dismiss under RCFC 12(b)(1) "`is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Patton v. United States, 64 Fed. Cl. 768, 773 (2005) (quoting Scheuer, 416 U.S. at 236). The plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). Although "pro se plaintiffs are held to a lower standard of pleading than those represented by counsel, all those seeking to invoke this court's subject matter jurisdiction ultimately retain the burden of establishing that the jurisdictional requirements are met." See Searles v. United States, 88 Fed. Cl. 801, 803 (2009) (citing Keener v. United States, 551 F.3d 1358, 1361 (Fed. Cir. 2009)); Minehan v. United States, 75 Fed. Cl. 249, 253 (2007) ("[T]he leniency afforded to a pro se litigant with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.").
The court may look at evidence outside of the pleadings in order to determine its jurisdiction over a case. Martinez v. United States, 48 Fed. Cl. 851, 857 (2001) (citing RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461-62 (Fed. Cir. 1998); Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)), aff'd in relevant part, 281 F.3d 1376 (Fed. Cir. 2002). "Indeed, the court may, and often must, find facts on its own." Id. If jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).
The Tucker Act provides in relevant part that 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) (2006). While the Tucker Act constitutes a limited waiver of the government's sovereign immunity, that statute "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." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part). In addition, "[n]ot every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act." United States v. Mitchell, 463 U.S. 206, 216 (1983). On the contrary,
[t]he claim must be one for money damages against the United States, see United States v. King, 395 U.S. 1, 2-3 (1969), and the claimant must demonstrate that the source of substantive law he relies upon "can be fairly interpreted as mandating compensation by the Federal Government for the damages sustained."Id. at 216-17 (quoting United States v. Testan, 424 U.S. 392, 400 (1976)) (internal quotations omitted). If the asserted constitutional or statutory basis of a claim does not mandate the payment of money by the government, the court must dismiss the action because "the absence of a money-mandating source [is] fatal to the court's jurisdiction under the Tucker Act." Fisher, 402 F.3d at 1173.
III. Plaintiffs Claims
Mr. Brock seeks both monetary and injunctive relief for the alleged violation of a number of constitutional, statutory and regulatory provisions. In his complaint, plaintiff provides a long list of alleged legal violations by defendant. First, Mr. Brock requests "just compensation" for the alleged denial of his due process rights under the Fifth Amendment and discrimination in violation of the Fourteenth Amendment. Compl. ¶ 1. Second, Mr. Brock seeks compensation for DCMA's alleged exercise of undue influence, fraud, bad faith, conspiracy, and gross negligence in violation of 18 U.S.C. §§ 241- 242, 245 (2006). Id. ¶ 2. Third, plaintiff requests an injunction enjoining the unnecessary application of ISO quality standards to individual contractors. Id. ¶ 3. Fourth, Mr. Brock seeks an injunction enjoining the use of arbitrary ISO standards by DCMA. Id. ¶ 4. Fifth, plaintiff seeks compensation for costs incurred as a result of misleading communications from DCMA to AMCOM and the Defense Logistics Agency related to a government delay of work. Id. ¶ 5. Sixth, Mr. Brock seeks compensation under the Fifth and Fourteenth Amendments for any illegal and unethical acts on the part of DCMA that he has not yet discovered. Id. ¶ 6. Seventh, plaintiff requests an injunction enjoining DCMA's exercise of regulatory authority in any areas in which it lacks the requisite expertise and qualifications. Id. ¶ 7. Eighth, Mr. Brock seeks an injunction removing the QAR function from within DCMA. Id. ¶ 8. Ninth, plaintiff requests an injunction requiring DCMA to comply with the "Government Service Code of Conduct" pursuant to 48 C.F.R. § 52.203-13 (2009). Id. ¶ 9. Tenth, Mr. Brock requests an injunction establishing a new division in the SBA devoted to the needs of individual contractors. Id. ¶ 10. Eleventh, Mr. Brock seeks an injunction requiring full transparency on the part of DCMA and the disclosure of any information on specific contractors provided by DCMA to other agencies. Id. ¶ 11. Finally, Mr. Brock seeks unspecified injunctive relief for instances where DCMA allegedly fails to properly screen "Spares Technical Data Packages" for outdated information, which results in a government delay of work. Id. ¶ 12.
In his response to defendant's motion to dismiss, Mr. Brock further alleges that the government violated the Commerce Clause, the Federal Acquisition Regulation (FAR), a decision of the United States Supreme Court, and a number of federal criminal and civil rights statutes. Pl.'s Resp. ¶¶ 3-5. Because the court lacks subject matter jurisdiction over all of the claims asserted by plaintiff, defendant's motion to dismiss the complaint must be granted. The court now turns to Mr. Brock's constitutional claims.
A. Constitutional Claims
Plaintiff first asserts that he is entitled to both monetary damages and injunctive relief under various provisions of the United States Constitution. In his complaint, Mr. Brock requests "just compensation" under the Fifth and Fourteenth Amendments for alleged discrimination and due process violations by defendant. Compl. ¶¶ 1-2, 5-6. In his response to defendant's motion to dismiss, Mr. Brock further claims that defendant violated the Commerce Clause. Pl.'s Resp. ¶ 3. Finally, Mr. Brock appears to make an implicit claim that he is entitled to relief under the Fourth Amendment. Id. ¶ 4 (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)). As discussed below, the court is without jurisdiction to address any of Mr. Brock's constitutional claims.
The court first notes that the Fourteenth Amendment does not impose any substantive constraints upon the actions of the federal government. See U.S. Const. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") (emphasis added); Lowe v. United States, 76 Fed. Cl. 262, 266 (2007) (holding that this court does not possess jurisdiction over claims under the Due Process Clause of the Fourteenth Amendment). Because the Fourteenth Amendment applies only to state actors, the court does not have jurisdiction to address any alleged violation of that constitutional provision. See 28 U.S.C. § 1491(a)(1) (providing that the court "shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution") (emphasis added).
The court is similarly without jurisdiction over any claims arising under the Due Process Clause of the Fifth Amendment because that constitutional provision is not money-mandating. See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that this court has no jurisdiction over claims arising under the Due Process Clause); Carruth v. United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980) ("This court has no jurisdiction over claims based upon the Due Process and Equal Protection guarantees of the Fifth Amendment, because these constitutional provisions do not obligate the Federal Government to pay money damages.").
Although this court has subject matter jurisdiction over claims for just compensation under the Takings Clause of the Fifth Amendment, Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008) ("It is undisputed that the Takings Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker Act jurisdiction."), Mr. Brock has not alleged the taking of any protected property interest by defendant. Although the complaint asserts that plaintiff is entitled to "just compensation," the mere use of that term is insufficient to state a takings claim under the Fifth Amendment. Mr. Brock has not identified any specific private property interest that has been taken by the government. See RCFC 9(i) ("In pleading a claim for just compensation under the Fifth Amendment of the United States Constitution, a party must identify the specific property interest alleged to have been taken by the United States.").
In addition to allegations ostensibly based on the Fifth and Fourteenth Amendments, Mr. Brock further asserts that defendant violated the Commerce Clause. Pl.'s Resp. ¶ 3. He does not, however, explain how any of defendant's alleged conduct resulted in a violation of that constitutional provision. In any event, this court does not possess subject matter jurisdiction over claims arising under the Commerce Clause because that provision does not require the payment of money damages by the federal government.
Finally, Mr. Brock cites, without explanation, the United States Supreme Court's decision in Bivens. Pl.'s Resp. ¶ 4. In that case, the Supreme Court held that a plaintiff could recover monetary damages from several federal law enforcement agents in their individual capacities for their alleged violation of the Fourth Amendment's prohibition of unreasonable searches and seizures. Although Mr. Brock does not allege that he was the victim of an unreasonable search or seizure, it is clear that, in any event, the court would not possess subject matter jurisdiction over such a claim. See Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) ("Because monetary damages are not available for a Fourth Amendment violation, the Court of Federal Claims does not have jurisdiction over such a violation."); Stephanatos v. United States, 81 Fed. Cl. 440, 445 (2008) (holding that this court may not exercise jurisdiction over alleged violations of the Fourth Amendment).
B. Statutory and Regulatory Claims
In addition to his asserted constitutional claims, Mr. Brock argues that he is entitled to relief under a number of federal statutes as well. As discussed below, most of the statutes referenced by plaintiff do not confer subject matter jurisdiction upon this court, nor do they create a substantive right to monetary relief from the government.
First, Mr. Brock claims that defendant violated a number of federal criminal statutes. See Compl. ¶ 2 (citing 18 U.S.C. §§ 241- 242, 245 (2006)); Pl.'s Resp. ¶ 5 (citing 18 U.S.C. §§ 241- 242, 246, 286, 371, 443, 1001-1002, 1017-1018, 1038, 1361, 1514A, 2707-2708 (2006)). This court may not exercise subject matter jurisdiction over claims related to alleged criminal violations by the federal government. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994) (holding that this court "has no jurisdiction to adjudicate any claims whatsoever under the federal criminal code"); Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) ("This court lacks jurisdiction to adjudicate criminal claims."). Because this court lacks jurisdiction over alleged violations of federal criminal law, plaintiff cannot base his claims on any statute contained within Title 18 of the United States Code.
Mr. Brock further asserts that defendant violated 42 U.S.C. § 1983 (2006). The court is likewise without jurisdiction to hear claims alleging the violation of that statute. As a general matter, the court does not have jurisdiction over alleged violations of federal civil rights statutes. See Elkins v. United States, 229 Ct. Cl. 607 (1981) (holding that this court does "not have jurisdiction over claims based upon alleged violations of the civil rights laws"). In addition, section 1983 applies only to the actions of state and local officials and local governments; it does not apply to the activities of the federal government. See 42 U.S.C. § 1983 (creating a cause of action for deprivations of civil rights by those acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia") (emphasis added). Finally, Congress has vested exclusive jurisdiction over such claims within the federal district courts. See 28 U.S.C. § 1343 (2006); Modena v. Neff 91 Fed. Cl. 29, 34 (2010) (holding that "[e]xclusive jurisdiction to hear civil rights claims resides in the federal district courts"); Hufford, 87 Fed. Cl. at 702-03 (holding that "Congress has committed jurisdiction of § 1983 `constitutional tort' actions to the district courts").
Mr. Brock also states that this court may exercise federal question jurisdiction pursuant to 28 U.S.C. § 1331 (2006). Pl.'s Resp. ¶ 1. That jurisdictional statute, however, expressly provides that the "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 (emphasis added). Section 1331 does not confer jurisdiction on this court, nor does it create any substantive right to monetary damages from the federal government.
Mr. Brock further claims that he is entitled to relief under FAR 52.203-13, 48 C.F.R. § 52.203-13 (2009). Compl. ¶ 9. That provision is a mandatory FAR contract clause that requires contractors to adopt a code of business ethics and conduct and to ensure compliance with that code; it does not impose any affirmative requirements on the government.
Finally, Mr. Brock asserts that the court possesses jurisdiction over his contract claims pursuant to the Tucker Act and the Contract Disputes Act (CDA), 41 U.S.C. §§ 601- 613 (2006). Although the court may exercise jurisdiction over contract claims against the federal government under those statutes, the court concludes that it is without jurisdiction over Mr. Brock's contract claims in this case. The court addresses the contractual claims raised by plaintiff infra.
C. Tort Claims
Mr. Brock accuses defendant of gross negligence, Compl. ¶ 2, and states that defendant's conduct "gives rise to multiple torts but does not originate from tort." Pl.'s Resp. ¶ 6. The jurisdiction exercised by this court under the Tucker Act is expressly limited to claims "not sounding in tort." 28 U.S.C. § 1491(a)(1); see also Brown, 105 F.3d at 623-24 (noting that the court "lacks jurisdiction over tort actions against the United States"). The district courts are the proper fora for tort claims against the federal government. See Hall v. United States, No. 09-629C, 2010 WL 723779, at *7 (Fed. Cl. Feb. 23, 2010) ("The Federal Tort Claims Act (`FTCA') grants the United States district courts exclusive jurisdiction to hear tort claims against the United States, and, therefore, the proper forum for federal tort claims is a United States district court."); Brown v. United States, 74 Fed. Cl. 546, 549 (2006) (holding that "the FTCA grants exclusive jurisdiction to the United States federal district courts regarding tort claims against the United States Government").
D. Requests for Injunctive Relief
As remedies for the claims discussed above, Mr. Brock requests a number of injunctions enjoining the application of various technical specifications and inspection requirements contained in the contract, as well as the general administration of the contract by defendant. See Compl. ¶¶ 3-4, 7-12. However, the court is authorized to grant injunctive relief in only two limited circumstances. First, the court may award injunctive and declaratory relief in bid protest cases. 28 U.S.C. § 1491(b)(2) (2006). In addition, the court may award equitable relief when such relief is "an incident of and collateral to" a money judgment. James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998). Mr. Brock's requests for injunctive relief do not fall into either of those categories. Because Mr. Brock is not entitled to monetary damages, the court is unable to award the equitable relief he has requested. See Brown, 105 F.3d at 624 ("The Tucker Act does not provide independent jurisdiction over . . . claims for equitable relief.").
E. Supplemental Jurisdiction
Mr. Brock argues that this court may exercise jurisdiction over all of his claims as long as it possesses original jurisdiction over any one of them. In support of that argument, Mr. Brock cites 28 U.S.C. § 1367 (2006). However, section 1367 merely provides that a district court may exercise supplemental jurisdiction over any claims that are part of the same case or controversy as a claim over which that court has original jurisdiction. The Court of Federal Claims, in contrast, may not exercise supplemental jurisdiction over claims that are beyond the scope of its original jurisdiction. See Hall v. United States, 69 Fed. Cl. 51, 57 (2005) (holding that section 1367 "does not confer any jurisdiction upon the United States Court of Federal Claims because only the United States District Courts are authorized to exercise supplemental jurisdiction").
F. Contractual Claims
To the extent Mr. Brock has any potential claims that are within this court's jurisdiction, those claims must be based upon the terms of his contract with the government. In his response to defendant's motion to dismiss, plaintiff characterizes his suit as a "CDA action." Pl.'s Resp. ¶¶ 1, 6-7, 9-11. As discussed below, however, the court does not have jurisdiction over Mr. Brock's asserted contract claims because he has failed to meet the mandatory exhaustion requirements of the CDA.
Under the Tucker Act, this court has subject matter jurisdiction over claims for monetary damages against the federal government based upon "any express or implied contract with the United States. . . ." 28 U.S.C. § 1491(a)(1). In addition, the Tucker Act further provides 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 10(a)(1) of the Contract Disputes Act of 1978, 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 that Act.28 U.S.C. § 1491(a)(2) (2006).
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. 41 U.S.C. § 605(a) (2006). Although the CDA does not specifically define the term "claim," the FAR describes a claim as "a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract." 48 C.F.R. § 2.101 (2009). The submission of a written claim to the contracting officer and a final decision on that claim are jurisdictional prerequisites to a suit in this court. See England v. Swanson Group, Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004) ("We have held, based on the statutory provisions [of the CDA], that the jurisdiction over an appeal of a contracting officer's decision is lacking unless the contractor's claim is first presented to the contracting officer and that officer renders a final decision on the claim.") (citing James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541-42 (Fed. Cir. 1996)); Omega World Travel, Inc. v. United States, 82 Fed. Cl. 452, 461-62 (2008) (holding that the submission of a written CDA claim with the contracting officer is a jurisdictional prerequisite to a CDA suit in this court).
Defendant argues that this suit must be dismissed for lack of jurisdiction because plaintiff has not submitted a claim to the contracting officer responsible for his contract. Def.'s Mot. at 6-7; Def.'s Reply at 1-3; Def.'s Sur-Reply at 1-2. In response, plaintiff first argues that he submitted an "administrative claim with AMCOM." Pl.'s Resp. ¶ 2. In addition, plaintiff states that his claim was denied by the commanding officer of DCMA-Atlanta. Pl.'s Sur-Reply ¶ 11. According to Mr. Brock, the commanding officer qualifies as a contracting officer for purposes of the CDA. Pl.'s Resp. ¶ 11. As discussed below, the court concludes that plaintiff has not met the exhaustion requirements of the CDA. For that reason, his contract claims must be dismissed for lack of jurisdiction.
Mr. Brock does not provide any evidence or documentation that a claim was submitted to the contracting officer at AMCOM. Although the court is generally required to accept all of the complaint's allegations as true in reviewing a motion to dismiss, the court may consider evidence outside of the pleadings when the jurisdictional facts alleged in the complaint have been challenged by the defendant. See Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003) ("A trial court may weigh relevant evidence when it considers a motion to dismiss that challenges the truth of jurisdictional facts alleged in a complaint. . . ."). Because Mr. Brock bears the burden of establishing subject matter jurisdiction, see Alder Terrace, 161 F.3d at 1377, his failure to provide any evidence that a claim was submitted to the contracting officer is fatal to his suit at this time.
As noted above, a claim is defined as a "written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract." 48 C.F.R. § 2.101. Plaintiff attached thirty exhibits to his complaint. The court has examined each of those exhibits and concludes that none of them constitutes a "claim" under the CDA. A brief discussion of those exhibits that might conceivably be argued to constitute a CDA claim follows.
First, none of the complaints filed by Mr. Brock with the SBA were "claims" within the meaning of the CDA because the national ombudsman of the SBA is not a contracting officer. Those complaints, moreover, do not seek payment of money in a sum certain, the adjustment or interpretation of contract terms, or any other specific relief arising under or related to the disputed contract. See Compl. Exs. A, C, M. Those complaints requested an investigation of alleged ethics violations and wrongdoing on the part of DCMA. Id.
Second, Mr. Brock's December 23, 2007 request for an equitable adjustment does not meet the requirements of a CDA claim for purposes of this suit. Although a request for an equitable adjustment may sometimes qualify as a claim under the CDA, see Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-78 (Fed. Cir. 1995) (holding that an equitable adjustment proposal was a claim under the CDA), the subject matter of the equitable adjustment requested by plaintiff is wholly unrelated to the issues raised in this suit. Mr. Brock's request for an equitable adjustment sought compensation for operating expenses, lost wages, and other costs attributable to a government delay of work, see Def.'s Mot. Ex. 4, unlike the requests for injunctive relief and claims for compensation under the Fifth and Fourteenth Amendments set forth in the complaint. Moreover, following the submission of Mr. Brock's equitable adjustment request, the parties reached an agreement on the request under which defendant paid Mr. Brock approximately $59,000. See Def.'s Mot. Ex. 5.
Third, the letter sent by Mr. Brock to various agencies on March 15, 2009 cannot be viewed as a claim as that term is defined in the FAR. While the letter threatens future legal action if it is ignored, it does not request payment of money in a sum certain or any other form of specific relief. See Compl. Ex. S. On the contrary, the letter indicates that Mr. Brock would be willing to discuss the issue of potential remedies with an official occupying a higher station than the commander of DCMA. Id.
Finally, Mr. Brock's letter of April 19, 2009 and the accompanying "constitutional claim" cannot provide the basis for jurisdiction in this court. Neither document requests any specific relief under the contract or sets forth a sum certain claimed by plaintiff. See Compl. Exs. X, Y. The constitutional claim merely challenges the constitutionality of ISO 9002 and expresses Mr. Brock's view that DCMA bears the burden of demonstrating that ISO 9002 does not violate the Constitution. Id. Ex. Y.
Mr. Brock has failed to prove that he submitted a CDA claim to the contracting officer responsible for his contract. Because there is no evidence that a claim for a sum certain or request for specific relief under the contract was ever submitted, the court need not address Mr. Brock's contention that the commanding officer of DCMA qualified as a contracting officer under the CDA. Because the submission of a CDA claim and a final decision on that claim by a contracting officer are jurisdictional prerequisites to suit in this court, the court must dismiss Mr. Brock's suit for lack of subject matter jurisdiction.
CONCLUSION
Most of the provisions cited by plaintiff fail to provide jurisdiction over the claims raised in his complaint. As to Mr. Brock's allegation that the CDA provides jurisdiction over his suit, he has not met his burden of demonstrating that a CDA claim has been submitted to the contracting officer. For those reasons, the complaint must be dismissed for lack of subject matter jurisdiction.
Accordingly, it is hereby ORDERED that
(1) Defendant's Motion to Dismiss, filed September 29, 2009, is GRANTED;
(2) The Clerk's Office is directed to ENTER final judgment in favor of defendant, DISMISSING the complaint for lack of jurisdiction, without prejudice; and
(3) No costs.