GLJ, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of - )

)

GLJ, Inc. ) ASBCA No. 62964

)

Under Lease No. DACA45-5-16-00059 )

APPEARANCE FOR THE APPELLANT: Mr. Gary L. James

Secretary/Treasurer

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

Engineer Chief Trial Attorney

Melissa M. Head, Esq.

Thomas J. Tracy, Esq.

Engineer Trial Attorneys

U.S. Army Engineer District, Omaha

OPINION BY ADMINISTRATIVE JUDGE STINSON ON

THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

Appellant GLJ, Inc. (GLJ), appealed a contracting officer’s denial of its claim

in the amount of $18,810, alleging damages to GLJ’s property arising out of a Land

Lease with the government (R4, tabs 4-5). 1 The United States Army Corps of

Engineers (USACE or government), requests summary judgment based upon a

settlement agreement entered between GLJ and the government after Alternative

Dispute Resolution (ADR) proceedings at the Board. We previously denied GLJ’s

motion for summary judgment by decision dated April 21, 2022, GLJ, Inc., ASBCA

No. 62964, 22-1 BCA ¶ 38,121, knowledge of which is presumed. For the reasons set

forth below, we grant the government’s motion.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

Parties Enter Into Land Lease Agreement

1. On September 20, 2016, GLJ entered Land Lease No. DACA45-5-16-00059

(the Land Lease) with the USACE Engineer District, Omaha (R4, tab 1 at 1). Pursuant

to that agreement, GLJ leased to the government land located in the Cottonwood Hills

Addition to LaGrange Township, Missouri Valley, Harrison County, Iowa (id.). The

purpose of the Land Lease was to allow the government access to 16 environmental

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The government numbered the tabs in the Rule 4 file, as well as the individual page

numbers, with leading zeros, e.g. “001,” and “00001.” For simplicity, we have

dropped the leading zeros.

“Monitoring Wells” (R4, tab 1 at 1, tab 5 at 13). The lease term commenced May 1,

2016, and ran through April 30, 2017, but was to remain in force thereafter from year

to year, until April 30, 2021 (R4, tab 1 at 1). The government agreed to pay GLJ

$3,120 per lease year (id.). Paragraph 10 of the Land Lease, entitled “DISPUTES,”

stated that “[t]his lease is subject to the Contracts Disputes Act of 1978 [CDA], as

amended (41 U.S.C. § 7101 et. al.) and is governed according to federal law” (id. at 2).

GLJ Claim Submission

2. By letter dated March 18, 2021, addressed to Heidi Durako, Project

Manager, Army Corps of Engineers, Omaha District, GLJ stated that “[a]ctions by the

Government’s employees or agents in the exercise of the Right-of-Entry have resulted

in damage to the real property,” and that “[t]he provisions of the contract dated

April 6, 2017 allow the Owner to make a claim under applicable laws for any damages

pursuant to Right-of-Entry” (R4, tab 2). GLJ alleged a loss of $18,810, based upon a

reduction in crop production for the years 2018-2020 (id.).

Government Issues Final Decision

3. By letter dated June 14, 2021, Amanda M. Simpson, Acting Chief, Real

Estate Division, Real Estate Contracting Officer, issued a final decision denying GLJ’s

claim (R4, tab 5). Ms. Simpson stated, in part:

We have reviewed your claim and find that the wells were

installed in the locations shown on the exhibit attached to

the lease and that the Government's operations and

activities were consistent with the normal operations

approved by the lease. Condition 9 of the Army Lease sets

forth the standard for establishing damages under the lease.

That condition specifically states the ‘The Government

shall be liable only for damage resulting from negligence

or misconduct of Government personnel or its agents,

contractors, or assigns.’ You have not alleged nor

provided any evidence of Government negligence or

misconduct so your claim is hereby denied.

(Id.)

With Land Lease Agreement About to Expire, Parties Enter Into New Right of

Entry Agreement

4. On March 23, 2021, GLJ and the USACE entered into a new agreement,

No. DACA45-9-21-00014, entitled “Department of the Army Right-Of-Entry for

Environmental Assessment and Response” (the “Right of Entry Agreement”) (R4,

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tab 7 2 at 1-2). Pursuant to the Right of Entry Agreement, GLJ granted the government

“an irrevocable and assignable right to enter in, over and across the land described

below, for a period not to exceed 60 months, beginning with the date of the signing of

this instrument” (R4, tab 7 at 1).

Parties Agree to ADR

5. In June 2022, the parties requested mediation of their dispute under the Land

Lease pursuant to the Board’s ADR procedures (Agreement to Utilize the Mediation

Procedure Under Addendum II of the ASBCA dtd. Jun. 28, 2022). On August 3,

2022, the parties participated in an ADR mediation before an ASBCA administrative

judge (R4, tab 8 at 2).

Parties Agree to Settle Land Lease Claim and Enter into Settlement Agreement

6. Subsequent to ADR mediation, the parties entered into a written settlement

agreement “[f]or the purpose of disposing of the Parties’ appeals [sic], without any

further proceedings and without there being any further adjudication of any issue of

law or fact, and without constituting any admission of liability on the part of any

party” (R4, tab 8 at 1). The settlement agreement was signed by appellant on

August 24, 2022, and by the government on August 25, 2022 (R4, tab 8 at 7).

7. Regarding payment, the settlement agreement provided:

In full and complete satisfaction of the above-described

Appeals [sic], the Government agrees to pay in the amount

of Ten Thousand Dollars and 0/100 Cents ($10,000.00),

which includes all liquidated damages (the "Settlement

Amount"), which shall be paid no later than Forty-five (45)

days from the Effective Date of this Agreement.

(R4, tab 8 at 2)

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On February 14, 2022, the government submitted a Rule 4 supplement containing

one additional document – tab 7, titled “Photos of claimed damages dated

May 10, 2021.” On June 28, 2022, the government submitted a second Rule 4

supplement containing tabs 7-9, with a different document – the Right of Entry

Agreement – reproduced in tab 7. Our citations to tab 7 in this decision refer to

the Right of Entry Agreement.

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8. Regarding dismissal of this appeal, the settlement agreement provided:

GLJ consents to dismiss with prejudice ASBCA

No. 62964, and shall within Ten (10) days after payment in

full of the Settlement Amount file with the ASBCA a

motion for dismissal of the Appeal with prejudice. If such

request is not filed by GLJ within Ten (10) days of receipt

of payment in full of the Settlement Amount, the

Government may move to dismiss the appeals with

prejudice, and GLJ will not oppose such motion.

(R4, tab 8 at 2-3)

9. Regarding release of claims, the settlement agreement provided:

Upon execution of the Settlement, GLJ hereby releases,

irrevocably waives, and abandons all claims against the

United States, its political subdivisions, its officers, agents,

and employees, arising out of or related to the Lease,

whether known or unknown, regardless of whether they

were included in the claim or complaint, including but not

limited to any claims for costs, interest, expenses, attorney

fees under the Equal Access to Justice Act (EAJA) and

damages of any sort.

(R4, tab 8 at 3)

10. By letter dated September 28, 2022, entitled “RELEASE FORM,” the

government provided appellant a United States Treasurer’s Check dated September 20,

2022, “in the amount of $10,000.00, for your claim filed in March 2021,” noting that

“[t]he amount represents payment negotiated for settlement at the ADR on August 3,

2022” (R4, tab 9 at 1).

11. The September 28, 2022, letter, also included a provision entitled

“ACCEPTANCE BY CLAIMAINT,” which stated:

I hereby accept the within stated award, compromise, or

settlement as final and conclusive and agree that

acceptance constitutes a complete release by me of the

claim filed on March 18, 2021, against the United States

and against any employee of the Government whose act or

omission gave rise to the claim, by reason of the same

subject matter.

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(Id.) Mr. Gary James signed the ACCEPTANCE BY CLAIMANT provision on

September 29, 2022 (id.).

12. On January 24, 2024, the Board held a telephone conference with the

parties to discuss the status of the appeal. The government subsequently filed its

motion for summary judgment on February 21, 2024 (gov’t mot.). Appellant filed its

response in opposition to the government’s motion on March 1, 2024 (app. opp’n), and

the government filed its reply brief on April 22, 2024 (gov’t reply).

DECISION

I. Standard of Review

“Summary judgment is appropriate if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” First

Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003); FED. R. CIV.

P. 56(a). “The moving party bears the burden of establishing the absence of any

genuine issue of material fact . . .” Bubble Room, Inc. v. United States, 159 F.3d 553,

561 (Fed. Cir. 1998). A party challenging a motion for summary judgment “must set

forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat'l Bank or Ariz. v. Cities Serv.

Co., 391 U.S. 253, 288 (1968)). “[A]ll significant doubt over factual issues must be

resolved in the opposing party’s favor.” Bubble Room, 159 F.3d at 561.

II. Contentions of the Parties

The government seeks summary judgment based upon the terms of its

settlement agreement with GLJ, as well as GLJ’s acceptance of a check in the amount

of $10,000 in settlement of its claims, and GLJ’s signed release of claims (gov’t mot.

at 4-5). Appellant does not challenge the government’s assertions regarding the

parties’ settlement agreement or appellant’s acceptance of a check in release of its

claims brought pursuant to the Land Lease (app. opp’n at 1). Instead, appellant asserts

that during the August 3, 2022, ADR, the parties also discussed “settlement regarding

hay production on land covered by ROE DACA45-9-21-0-00-114” – the Right of

Entry Agreement (app. opp’n at 1) (emphasis supplied by appellant). Appellant states

that “[t]he terms of this second agreement included a guaranteed payment of 4 large

bales per acre, with adjustments based upon actual production and USDA hay value,”

and that “[b]oth parties verbally agreed to this solution during the ADR meeting but

were [sic] never formalized into a written contract despite Mr. [Phillip] Jackman’s

commitment” (id.). 3 The government responds “[t]o the extent that GLJ, Inc., may

3

Phillip Jackman is a manager within the Army’s Formerly Used Defense Sites

Program (app. opp’n at 1-2).

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have alleged claims for crop losses or damages experienced under a later Right of

Entry, those claims cannot be pursued under the Contract Disputes Act, and the Board

does not have jurisdiction to consider them” (gov’t mot. at 4-5).

III. The Parties have Settled, and GLJ has Released, All Claims GLJ Asserted

Under the Land Lease

It is well established that “[a] settlement agreement is a contract, which we

interpret as a matter of law.” Supreme Foodservice GMBH, ASBCA No. 57884, et al.,

16-1 BCA ¶ 36,387 at 177,394 (citing Slattery v. Dep’t of Just., 590 F.3d 1345, 1347

(Fed. Cir. 2010) (additional citations omitted)). Here, the settlement agreement

included a release, which “is interpreted in the same manner as any other contract term

or provision.” Bell BCI Co. v. United States, 570 F.3d 1337, 1341 (Fed. Cir. 2009).

Where “a release’s terms are clear and unambiguous, we are to give them their plain

and ordinary meaning, without resort to extrinsic evidence.” Supreme Foodservice

GMBH, 16-1 BCA ¶ 36,387 at 177,394 (citations omitted).

The settlement agreement is unambiguous in its terms, releasing all appellant’s

claims arising under the Land Lease (SOF ¶ 9). The same is true regarding the

Release Form signed by Mr. Gary on September 29, 2022 (SOF ¶¶ 10-11). Appellant

does not contest the fact that it entered into a settlement agreement covering the claims

it asserted pursuant to the Land Lease (app. opp’n at 1) - which are the subject of this

appeal. GLJ’s opposition brief contains no challenge to the enforceability of the

settlement agreement or any argument that it is somehow inoperable. Indeed,

appellant signed the settlement agreement on August 24, 2022, 21 days after the

August 3, 2022, ADR proceedings and acquiesced to its terms (SOF ¶¶ 5-6).

Appellant also admits in its Statement of Undisputed Material Facts that it “readily

accepted” the $10,000 check in settlement of its claims (app. opp’n at 1). 4

Pursuant to the settlement agreement, GLJ consented “to dismiss with prejudice

ASBCA No. 62964” and to, within 10 days after payment of the settlement amount,

“file with the ASBCA a motion for dismissal of the Appeal with prejudice” (SOF ¶ 8).

In the event GLJ did not seek dismissal within 10 days of receipt of payment in full of

the settlement amount, the settlement agreement granted the government the right to

“move to dismiss the appeals [sic] with prejudice,” and stated that “GLJ will not

oppose such [a] motion” (id.). After receipt of payment, appellant did not seek

dismissal of the appeal and, accordingly, the government now seeks summary

judgment on GLJ’s Land Lease claims (gov’t mot. at 1, 3). The government’s motion

is a proper exercise of its right to dismiss the appeal pursuant to the terms of the

4

Appellant did not challenge (or even discuss) any of the factual assertions set forth in

the government’s Statement of Undisputed Material Facts set forth in the

government’s motion (see gov’t mot. at 1-3, ¶¶ 1-10; app. opp’n at 1-2).

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settlement agreement, a right which appellant expressly agreed not to oppose. Based

upon the above, we conclude that the government is entitled to summary judgment

here. Colorado River Materials, Inc., ASBCA No. 57751, 13-1 BCA ¶ 35,233

at 172,992 (granting summary judgment to the government based upon settlement

agreement’s release and accord and satisfaction); Supreme Foodservice GMBH, 16-1

BCA ¶ 36,387 at 177,394 (“An unambiguous release in a settlement agreement can be

amenable to summary judgment”) (citations omitted).

IV. The Board Lacks Jurisdiction to Adjudicate Any Claims Arising Out of the

Right of Entry Agreement or Enforce the Alleged Verbal Agreement

Discussed During ADR Proceedings

Appellant’s opposition brief requests that we issue an order “enforcing” a

verbal agreement regarding compensation for damages arising out of the Right of

Entry Agreement. Appellant alleges that a verbal agreement was reached during the

August 3, 2022, ADR proceedings. (App. opp’n at 1-2) As we discuss below, this

Board lacks jurisdiction to grant the relief appellant requests.

Our jurisdiction is governed by the CDA, 41 U.S.C. §§ 7101-7109. It is

undisputed that GLJ’s appeal, and our jurisdiction here, arises out of the Land Lease,

not the Right of Entry Agreement (SOF ¶ 1). The verbal agreement GLJ requests we

enforce here is based upon alleged damages arising out of the Right of Entry

Agreement, not the Land Lease (SOF ¶ 4).

Pursuant to the CDA, our jurisdiction is “dependent upon the contractor’s

submission of its claim to the [contracting officer] and a final decision on, or the

deemed denial of, the claim.” CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA

¶ 35,700 at 174,816 (citing 41 U.S.C. § 7103-7105; M. Maropakis Carpentry, Inc. v.

United States, 609 F.3d 1323, 1327-28 (Fed. Cir. 2010). “[W]here there is no claim,

there can be no effective decision from which to appeal.” Sweet Star Logistic Serv.,

ASBCA No. 62082, 20-1 BCA ¶ 37,704 at 183,045 (quoting Mawaraa AlBihar Co.,

ASBCA No. 58585, 13-1 BCA ¶ 35,426 at 173,783). Although GLJ alleges that a

verbal agreement was reached during ADR proceedings in this appeal, the demands or

assertions encompassed by that alleged agreement were never the subject of a CDA

claim submitted to a contracting officer for a final decision. As such, GLJ’s alleged

verbal agreement does not meet jurisdictional prerequisites of the CDA. Moreover, as

GLJ admits, the verbal agreement was “never formalized into a written contract” (app.

opp’n at 1). Accordingly, the verbal agreement does not provide an independent basis

upon which this Board would have jurisdiction to issue an order enforcing its terms.

Winter v. FloorPro, Inc., 570 F.3d 1367, 1370 (Fed. Cir. 2009) (ASBCA’s jurisdiction

is governed by the CDA, which is a waiver of sovereign immunity and must be strictly

construed).

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CONCLUSION

The government’s motion for summary judgment is granted and the appeal is

dismissed with prejudice.

Dated: May 7, 2024

DAVID B. STINSON

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

OWEN C. WILSON MICHAEL N. O’CONNELL

Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the

Armed Services Board of Contract Appeals in ASBCA No. 62964, Appeal of GLJ,

Inc., rendered in conformance with the Board’s Charter.

Dated: May 7, 2024

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

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