Ensley, Inc. v. United States

In the United States Court of Federal Claims

No. 11-682 C

(Filed February 25, 2014)

*********************

ENSLEY, INC., *

* Contract; Breach and Setoff;

Plaintiff, * Setoff of Repair Costs against

* Rent and Tax Payments Owed

v. * under Postal Service Lease.

*

THE UNITED STATES, *

*

Defendant. *

*********************

Lawrence M. Magdovitz, II, Cordova, TN, for plaintiff.

Matthew P. Roche, United States Department of Justice, with whom were

Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and

Martin F. Hockey, Jr., Assistant Director, Washington, DC, for defendant.

_________________________

OPINION

_________________________

BUSH, Senior Judge.

Now pending before the court is defendant’s motion for summary judgment

pursuant to Rule 56 of the Rules of the United States Court of Federal Claims

(RCFC). Defendant’s motion has been fully briefed and is ripe for a decision by

the court. Oral argument was neither requested by the parties nor required by the

court. For the reasons set forth below, the court grants defendant’s motion.

BACKGROUND 1

I. Factual Background

A. Lawrence Magdovitz and Ensley Station

During the time period relevant to this litigation, Lawrence Magdovitz, an

attorney, realtor, and residential contractor in Clarksdale, Mississippi, owned

and/or controlled several corporations which together own hundreds of properties

that are leased to the United States Postal Service (the Postal Service), including

the property which is the subject of this litigation. A117-18, 122, 127-28, 130-36. 2

That property, which is located at 700 18th Street in Birmingham, Alabama, and

which the parties refer to as “Ensley Station,” has been leased to the Postal Service

since 1965 for use as a post office. Compl. ¶ 2; see Def.’s Mot. at 2; Pl.’s Resp. at

1.

In February 2000, Kerin Motors, Inc. (Kerin Motors), which until December

2012 was owned either in whole or in part by Mr. Magdovitz, purchased Ensley

Station. A122-23, 127-28. That conveyance included a lease with the Postal

Service dated March 15, 1965. 3 A7-18 (lease agreement with amendments).

Mr. Magdovitz incorporated Ensley, Inc. (Ensley), the plaintiff in the instant

case, in 2005. A137. Mr. Magdovitz is the president of Ensley. A136. The sole

shareholders of Ensley are Lawrence M. Magdovitz, III and Noah Connor

1

/ The facts recounted in this opinion are taken from the complaint and the parties’

submissions in connection with defendant’s motion for summary judgment. Except where

otherwise noted, the facts recounted herein are undisputed.

2

/ All references in this opinion to “A____” are to the appendix to defendant’s motion for

summary judgment.

3

/ Although a “Certificate of Transfer of Title to Leased Property and Lease Assignment

and Assumption” dated July 17, 2005 refers to the lease as “dated March 20, 1965,” A159, the

lease itself states that it was “made and entered into this []15[th] day of March, 1965,” A7, and a

subsequent amendment to the lease likewise refers to the lease as an “instrument dated March 15,

1965,” A16. Despite this discrepancy, the precise date on which the lease was entered is not

material to the court’s resolution of defendant’s motion for summary judgment.

2

Magdovitz – Mr. Magdovitz’s grandsons. A133. On July 17, 2005, Kerin Motors

conveyed Ensley Station, and assigned the lease, to Ensley. A137, 159.

B. The Lease

The lease contains two provisions which set forth the lessor’s obligation to

maintain the premises as well as the tenant’s rights in the event that the lessor fails

to fulfill that obligation. Specifically, paragraph 7 of the lease states, in pertinent

part, that “[t]he Lessor shall . . . maintain the demised premises, including the

building and any and all equipment, fixtures, and appurtenances, whether severable

or non-severable, . . . in good repair and tenantable condition, except in case of

damage arising from the act or the negligence of the Government’s agents or

employees.” A8. Additionally, paragraph 10(c) of the lease provides as follows:

If any building or any part of it on the leased property

becomes unfit for use for the purposes leased, the lessor

shall put the same in a satisfactory condition, as

determined by the Post Office Department, for the

purposes leased. If the lessor does not do so with

reasonable diligence, the Post Office Department in its

discretion may cancel the lease. For any period said

building or any part thereof is unfit for the purposes

leased, the rent shall be abated in proportion to the area

determined by the Post Office Department to have been

rendered unavailable to the Post Office Department by

reason of such condition.

Id.

The lease also contains a “Tax Clause Rider” (the Tax Clause), which

provides in pertinent part as follows:

The lessor shall present to the Government the general

real estate bills of each taxing authority for taxes due and

payable on the land and buildings hereby demised when

said taxes apply to any year or part thereof within the

term of this lease. . . . After the presentation of said tax

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bills, the Government shall pay to the lessor, as

additional rent due hereunder, the net amount of said

taxes by check made payable to the lessor and the taxing

authority issuing said tax bill. The lessor shall thereafter

promptly indorse said check and turn the same over to

the said taxing authority.

A16.

C. The Leaky Roof at Ensley Station

In the fall of 2002, shortly after Kerin Motors had purchased Ensley Station

and assumed the lease with the Postal Service, the roof at Ensley Station

experienced leaks. See Pl.’s Statement of Undisputed Material Facts (PSUMF) ¶ 8.

On October 7, 2002, Kenneth Means, the manager of Ensley Station, notified Mr.

Magdovitz in writing that Ensley Station “HAS LEAKS ON THE ROOF IN . . .

TWO DIFFERENT PLACES” and emphasized that “IMMEDIATE ATTENTION

IS NEEDED AS SOON AS POSSIBLE.” A29. In response, Mr. Magdovitz sent

Joe Spencer, a plumber by trade who also performed various odd jobs for Mr.

Magdovitz, to repair the roof.4 A141-42, 146-47.

Despite Mr. Spencer’s efforts, the roof continued to leak. On March 21,

2003, Mr. Means again notified Mr. Magdovitz that “Ensley [S]tation has roof

leaks that need to be looked at.” A30. In response, Mr. Magdovitz sent Mr.

Spencer to Ensley Station to repair the roof a second time. A31; Pl.’s Resp. Ex. 3

(Magdovitz Dep. pt. 1) at 77-79.5 This second effort was similarly unfruitful,

4

/ Although Mr. Magdovitz asserted at his deposition that Mr. Spencer “had an electrical

and plumbing license,” he stated that he did not know whether Mr. Spencer possessed a roofing

license. A141-42. In the totality of the testimony concerning Mr. Spencer, there is nothing

indicating that he was a licensed roofer or, for that matter, that he possessed any roofing

experience whatsoever.

5

/ Defendant’s appendix includes a redacted version of the transcript of Mr. Magdovitz’s

deposition. Because the pertinent testimony in Mr. Magdovitz’s deposition is not confined to the

page ranges included in defendant’s appendix, the court is obliged to refer in certain portions of

this opinion to the un-redacted transcript of Mr. Magdovitz’s deposition attached as an exhibit to

plaintiff’s response to defendant’s motion for summary judgment.

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however. On April 23, 2003, Mr. Means wrote to Mr. Magdovitz yet again to

notify him that “THE BUILDING STILL HAS LEAKS ON THE ROOF IN . . .

TWO DIFFERENT PLACES.” A32. Mr. Means added that Mr. Spencer’s

“LAST VISIT DID NOT CORRECT THE PROBLEM,” and that “WE HAVE

LEAKS IN THE SAFE ROOM AND [IN THE] WOMEN[’]S BATHROOM.” Id.

The roof continued to leak in 2004 and 2005. See A38-52. On September 1,

2004, the Postal Service sent a letter to Mr. Magdovitz to “follow up [on] several

calls . . . [in] the past several months . . . regarding . . . need[ed] repairs at the

Birmingham Ensley Station post office facility.” A38. Among the “need[ed]

repairs” listed in the letter were “[r]epair roof leaks” and “[r]eplace ceiling tiles

stained from roof leaks.” Id.; see PSUMF ¶ 11. The letter concluded by stating

that “[s]hould [Kerin Motors] not take action to make the required repairs by

September 24, [2004,] the Postal Service will solicit proposals and award a

contract to have the work completed by a third party” and would seek to recover

the costs of such repairs “from rents due . . . under the terms and conditions of the

lease.” A38. On January 13, 2005, the Postal Service sent yet another letter to Mr.

Magdovitz concerning “outstanding deferred maintenance items” at various post

office locations, including Ensley Station. A39-40. Regarding the leaky roof at

Ensley Station, the letter stated that an “attempt [had been] made to repair leaks”

on October 11, 2004, but that leaks were “STILL IN EVIDENCE” – i.e., “RAIN IS

STILL COMING IN,” “CEILING TILES ARE FALLING,” and “FUNGUS [IS]

NOTED IN SOME AREAS.” A40.

In response to the Postal Service’s persistent complaints, Mr. Magdovitz

sent William Willis, the superintendent of operations for the Yazoo, Mississippi

Delta Levee Board who also performed various weekend projects for Mr.

Magdovitz, to repair the roof.6 A49-52; Pl.’s Resp. Ex. 4 (Magdovitz Dep. pt. 2)

at 107-08, 114-16. Mr. Willis visited Ensley Station twice to conduct repairs.

A187-88; PSUMF ¶¶ 12-13. During his initial visit in or about March 2005, Mr.

Willis spent approximately two hours replacing water-damaged ceiling tiles inside

6

/ Like Mr. Spencer, Mr. Willis was not a licensed roofer. Mr. Willis testified that his

job as operations superintendent entailed the performance of maintenance and repair work on the

Yazoo, Mississippi Delta Levee. Although he admitted that he possessed no professional

certifications, he claimed that he had obtained “[h]ands-on training” in sundry areas such as

“heavy equipment, welding, carpentry work, [and] roofing.” A161-62.

5

the building, applying concrete silicone to cracks around vents on the roof and to

cracks in the building’s external walls near the roof, and applying plastic cement to

cracks along the flashing of an overhang on the front of the building. A169-75.

Despite the repairs performed by Mr. Willis, the roof at Ensley Station

continued to leak. See A42-48. In an effort to stop the leaks, the Postal Service’s

maintenance personnel placed a plastic tarp over approximately one-third of the

roof and secured it with 3/8 inch staples. Compl. ¶ 11; A56. Later in March 2005,

Mr. Magdovitz sent Mr. Willis a second time to Ensley Station to perform

additional repairs to the roof. A152, 179-84. During that visit, Mr. Willis

discovered the tarp on the roof, removed it, and applied a layer of aluminum roof

coating called “silver coat” over the surface of the roof. A182-84, 187-88; PSUMF

¶¶ 14, 17-18. Mr. Willis did not inspect the subsurface of the roof before applying

the coating, nor did he verify whether the staples had actually punctured the

subsurface. A181-82.

The roof at Ensley Station continued to leak through the end of March 2005

and into April 2005. A47-48, 74. On April 4, 2005, Bryan Pease, the Real Estate

Manager for the Postal Service’s Southeast Facilities Service Office, sent a letter to

“Larry” Magdovitz – Mr. Magdovitz’s son and attorney – stating that Ensley

Station “has the attention of the District Manager” because workers at the station

were “complaining about having to work in wet conditions every time it rains.”

A56-57. Mr. Pease also stated that the Postal Service was “having a roofing

consultant examine the roof and provide us with an existing conditions survey and

recommendation for repair/replacement.” Id.

D. The House Report

On April 18, 2005, Charles House, an expert in commercial and residential

roofing systems and a registered roof observer for Thompson Engineering Inc.,

inspected Ensley Station’s roof and conducted a moisture survey. A58, 61-64, 66.

In his written report of the inspection, Mr. House noted that the roof consisted of

“multiple layers of a granulated modified bitumen surface material,” most likely a

material called “Ruberoid.” A59; see also A66. Mr. House also stated that, during

his inspection, he conducted a moisture survey of the roof using a “Tramex Leak

Seeker non-destructive moisture detection system.” A67. Mr. House explained

that “[t]he Leak Seeker is a solid state electronic capacitance meter especially

6

designed to locate trapped moisture in a roof system.” Id. According to Mr.

House, the moisture survey revealed “extremely high” levels of moisture “under

the roof membrane in all locations throughout the entire roof area with heavy

concentrations at the perimeter and locations around the metal flashing collars.”

A66-67.

In addition, Mr. House observed that the “side laps” and “end laps” of the

granulated modified bitumen surface material had been taped over and/or adhered

to the roof membrane using roof cement. A67, 69, 72. This condition, Mr. House

concluded, is indicative of “[p]oor sealing” of the surface material as well as “past

roof leaks.” A67; see also A69 (“Taping of the side laps would indicate separation

of the laps in the past.”), 72 (“The end laps of the modified cap sheet are also being

sealed with roof cement prior to the application of the new top coating. This form

of cement application is indicative of past roof leak problems.”). Mr. House also

noted that only seventy percent of the surface material was “turned down over the

existing perimeter metal drip edge and nailed,” while the remaining thirty percent

“terminated at the edge of the [perimeter] metal and turned slightly upward.” A67;

see also A73. Mr. House opined that this condition resulted in “water

accumulat[ing] on the roof surface . . . [and] run[ning] over the raised edge of the

modified sheet and into the roof system underneath.” A67; see also A70 (“In areas

where the cap sheet was not turned down over the drip edge water was running

back under the cap into the roof.”), 73 (“When water builds up on the roof surface

it runs over the outside edge of the cap and back under the open edge at the

[perimeter] metal. This condition allows a large amount of water into the roof

system.”). Additionally, Mr. House observed that the “metal flashing collars

installed to seal the penetration of the plumbing metal vents” on the roof “were not

sealed properly and were allowing water into the roof system.” A67; see also A71.

Finally, Mr. House noted that “[t]he metal drip edge has been moving at the end

lap joints due to poor nailing,” a condition which, in Mr. House’s opinion,

“cause[d] the membrane stripping to split and allow[ed] water to enter the [roof]

system at the perimeter.” A67; see also A72.

Based upon the results of the moisture survey and his observations regarding

the condition of the roof system, Mr. House concluded that “moisture has been

entering the roof system and building for some time” and that “[t]he concentration

of moisture is so large [that] a process of deterioration has begun that cannot be

stopped.” A67-68. Mr. House therefore recommended that “[t]he only solution to

7

this problem would be [the] complete removal of the roof membrane, roof

insulation, and perimeter metal. . . . [d]own to the roof deck” as well as

replacement of the entire roof system. A68.

E. The Postal Service Replaces the Roof and Offsets the Cost of

Replacement against Rents Owed under the Lease

On April 27, 2005, Mr. Pease sent Mr. House’s report to Mr. Magdovitz by

facsimile along with a cover sheet stating that the “REPORT RECOMMENDS

REPLACEMENT AS THE ONLY MEANS OF MAKING THE ROOF WATER

TIGHT.” A74. Mr. Pease requested that Mr. Magdovitz “ADVISE [THE

POSTAL SERVICE] OF PLANNED ACTION AND SCHEDULE AS SOON AS

POSSIBLE.” Id. Mr. Magdovitz responded on May 11, 2005, asserting that “[t]he

roof at Ensley [Station] is not leaking” and “[i]f water is trapped under the roofing,

it was caused by the thousands of staples penetrating the roof caused by [Postal

Service] employees.” A83.

On May 20, 2005, Mr. Pease sent another letter to Mr. Magdovitz stating

that the Postal Service would “proceed to have the roof replaced as soon as

practicable” and would seek reimbursement of the cost of replacing the roof or, in

the alternative, would “recapture [the cost] through rent reductions.” A84; see

PSUMF ¶ 19. On August 10, 2005, Mr. Pease sent yet another letter to Mr.

Magdovitz stating that “the leaks are still in evidence” and reiterating that the

Postal Service would complete the necessary repairs and seek to recover the cost of

such repairs “from rents due you under the terms and conditions of the Lease.”

A86.

Shortly thereafter, the Postal Service entered into a contract for the

replacement of the roof, which was completed on October 6, 2005 at a cost of

$55,296.14. Compl. ¶¶ 13-14; A90-106; PSUMF ¶ 20. On December 13, 2005,

Mr. Pease provided Mr. Magdovitz with copies of invoices for the roof

replacement and informed him that if the Postal Service did not receive

reimbursement by January 6, 2006, “the full cost of the roof replacement under this

lease may be recouped through rental deduction.” A105; see PSUMF ¶ 22.

The Postal Service never received reimbursement of the cost of replacing the

roof. A109. Accordingly, on October 15, 2010, contracting officer Jean Scholl

8

Berg issued a “final decision” authorizing the withholding of rent payments under

the lease as a setoff. A108-11; see PSUMF ¶ 21. Ms. Berg’s decision stated that,

unless payment was made in the full amount of $55,296.14 by January 1, 2012, the

Postal Service would begin to make monthly rent deductions beginning on that

date and ending in March 2015, for a total deduction of $12,982.02. A110. The

decision further stated that this would “leave[] a balance of $42,314.12[,] which

will be deducted from any other payments due under the lease or, if necessary,

collected through legal action.” Id.

On November 12, 2010, Ms. Berg sent another letter to Mr. Magdovitz

acknowledging Ensley’s request for payment of $3,410.77 in property taxes

pursuant to the Tax Clause contained in the lease. A112-13; see PSUMF ¶ 23.

This letter stated that the Postal Service “will not pay the additional rent otherwise

provided for in the Tax Clause,” but would instead offset the tax payments

requested by plaintiff against the cost of replacing the roof. A112-13.

II. Procedural History

Ensley filed a three-count complaint in this court on October 14, 2011. In

Count I, plaintiff alleges that the government breached the lease by “improperly

attempting to reimburse itself $55,296.14 for repairs to the roof” at Ensley Station.

Compl. ¶ 23. Plaintiff asserts that it “addressed the roof leak issues” and that the

Postal Service “replaced the roof unnecessarily.” Id. ¶ 24. Ensley also asserts, in

the alternative, that any “continued leaks after the Plaintiff’s repairs were the result

of the ‘acts or negligence’ of the Defendant’s agents or employees by making

thousands of staple punctures to the roof.” Id. ¶ 25; see also id. ¶ 15. With respect

to Count I, plaintiff asks the court to “find that the Defendant breached the Lease

Agreement by improperly charging and withholding from the rents the amount of

$55,296.14” and to “order the Defendant to refund all funds withheld by the

Defendant . . . [and] cease any future withholding.” Id. ¶ 28.

In Count II, plaintiff alleges that the government breached the lease by

refusing to pay property taxes it allegedly owed pursuant to the Tax Clause.

Compl. ¶¶ 29-34. With respect to this count, Ensley “requests . . . that the

Defendant be ordered to forward a check for the amount of the taxes, including any

penalties, interest or other charges required to be paid.” Id. ¶ 34.

9

In Count III, plaintiff alleges that the government “has taken a substantially

unjustifiable position in this matter . . . based on the fact that the Lease Agreement

clearly states [that] the Defendant must provide payment of the real property taxes

upon being presented with the tax bill for the Property.” Compl. ¶ 36. Ensley

asserts that “[t]he Defendant’s actions were contrary to the facts presented to them

in written correspondence from the Plaintiff and [in] the Lease Agreement and

were done in bad faith.” Id. ¶ 37. Plaintiff therefore requests “reasonable

attorney’s fees in an amount to be shown in an [Equal Access to Justice Act]

application.” Id. ¶ 40.

Defendant filed a motion for summary judgment on August 29, 2013. In its

motion, defendant argues that there is no genuine issue of fact regarding plaintiff’s

failure to remedy the ongoing leaks in the Ensley Station roof, and that plaintiff

can produce no evidence demonstrating that such leaks were attributable to the

Postal Service’s act of stapling a plastic tarp to the roof. See Def.’s Mot. at 12-16;

Def.’s Reply at 9-12. Defendant therefore contends that plaintiff is responsible for

the cost of replacing the roof under paragraphs 7 and 10(c) of the lease. In

addition, defendant argues that the Postal Service is entitled to offset the cost of

replacing the roof against rent due under the lease, including by withholding tax

payments otherwise owed pursuant to the Tax Clause. See Def.’s Mot. at 11-12,

16-18; Def.’s Reply at 3-9, 12-14. Plaintiff filed its response on October 28, 2013,

and defendant filed its reply on November 26, 2013.

DISCUSSION

I. Standard of Review for RCFC 56 Motions for Summary Judgment

The availability of summary judgment helps a federal court “‘to secure the

just, speedy, and inexpensive determination of every action.’” Celotex Corp. v.

Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). Summary judgment

is appropriate where there is no genuine dispute as to any material fact and the

moving party is entitled to judgment as a matter of law. RCFC 56(a); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is material if it would

affect the outcome of the suit. Anderson, 477 U.S. at 248. A dispute of material

fact is genuine if a reasonable trier of fact could return a verdict for the nonmoving

party. Id. at 248, 256; Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986) (citation omitted) (stating that there is no genuine issue

10

“[w]here the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party”).

The moving party bears the burden of showing that there is an absence of

any genuine issue of material fact, and the court must view the evidence in the

light most favorable to the nonmovant and draw all reasonable inferences in favor

of that party. Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed.

Cir. 1994) (citations omitted). “The moving party, however, need not produce

evidence showing the absence of a genuine issue of material fact . . . .” Id. (citing

Celotex, 477 U.S. at 325). Rather, “when the non-moving party bears the burden

of proof on an issue, the moving party can simply point out the absence of

evidence creating a disputed issue of material fact” and thereby shift the burden to

the nonmoving party to produce evidence showing that there is such a disputed

factual issue in the case. Simanski v. Sec’y of Health & Human Servs., 671 F.3d

1368, 1379 (Fed. Cir. 2012) (citing Celotex, 477 U.S. at 325, and Dairyland, 16

F.3d at 1202).

A party opposing a properly supported motion for summary judgment “must

set forth specific facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 256. Mere allegations or denials, conclusory statements, or evidence

that is merely colorable or not significantly probative are not sufficient to preclude

summary judgment. Id. at 248-50, 256; see also Matsushita, 475 U.S. at 586

(“When the moving party has carried its burden under Rule 56(c), its opponent

must do more than simply show that there is some metaphysical doubt as to the

material facts.”) (citations omitted); Applied Cos. v. United States,144 F.3d 1470,

1475 (Fed. Cir. 1998) (“It is well settled that ‘a conclusory statement on the

ultimate issue does not create a genuine issue of fact.’” (quoting Imperial Tobacco

Ltd. v. Philip Morris, Inc., 899 F.2d 1575, 1581 (Fed. Cir. 1990))); Barmag

Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 835-36 (Fed.

Cir. 1984) (Barmag) (“With respect to whether there is a genuine issue, the court

may not simply accept a party’s statement that a fact is challenged. . . . Mere

denials or conclusory statements are insufficient.”) (citation omitted). “The party

opposing the motion must point to an evidentiary conflict created on the record by

at least a counter statement of a fact or facts set forth in detail in an affidavit by a

knowledgeable affiant.” Barmag, 731 F.2d at 836. Summary judgment must be

granted against a party who fails to make a showing sufficient to establish the

existence of an essential element to that party’s case and on which that party will

11

bear the burden of proof at trial. Dairyland, 16 F.3d at 1202 (citing Celotex, 477

U.S. at 323).

II. Analysis

A. Whether Ongoing Leaks at Ensley Station Were Attributable to

Plaintiff or the Postal Service

The government argues that there is no genuine issue of fact regarding

plaintiff’s failure to repair ongoing leaks in the Ensley Station roof, and that

plaintiff can produce no evidence demonstrating that the leaks were attributable to

the Postal Service’s act of stapling a plastic tarp to the roof. See Def.’s Mot. at 12-

16; Def.’s Reply at 4-6, 9-12. Defendant therefore contends that the Postal Service

“reasonably concluded that Ensley had breached the lessor’s obligations in

paragraphs 7 and 10(c) of the lease by failing to keep the roof in good repair and

tenable condition and by failing to put the roof ‘in a satisfactory condition.’”

Def.’s Reply at 4 (quoting lease paragraph 10(c) at A8); see also Def.’s Mot. at 16

(“Ensley cannot establish that the Government was responsible for the leaks or that

the Postal Service’s decision to replace the roof was unreasonable.”).

Plaintiff responds that it “fulfilled its maintenance obligation to the

Defendant when it repaired the roof on the leased property, but the Defendant’s

contractors put staple holes in the roof afterwards causing subsequent roof leaks.”

Pl.’s Resp. at 1. Plaintiff therefore contends that “[t]here is a genuine issue of

material fact as to the cause of the leaks at Ensley [Station].” Id. at 8; see also id.

at 9 (“[T]here exists a genuine issue of material fact as to whether the Defendant

contributed to the roof leaks by stapling plastic to the roof at Ensley thus causing

new leaks.”).

After careful consideration of the evidence and arguments presented by the

parties, the court agrees with defendant that there is no genuine dispute of fact

regarding plaintiff’s failure to remedy the ongoing leaks in the Ensley Station roof.

As a preliminary matter, the undisputed evidence demonstrates that leaks persisted

from 2002 through 2005 despite the Postal Service’s repeated complaints and Mr.

Spencer’s and Mr. Willis’s numerous repair attempts. The Postal Service first

notified Mr. Magdovitz of the leaks in October 2002. A29; PSUMF ¶ 8. Although

Mr. Magdovitz sent Mr. Spencer to make repairs to the roof shortly thereafter, the

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leaks reappeared in March 2003. A30, 141-42, 146-47. The Postal Service again

complained of leaks in April 2003, even after Mr. Magdovitz sent Mr. Spencer a

second time to repair the roof. A31-32; Pl.’s Resp. App. 3 (Magdovitz Dep. pt. 1)

at 77-79. Complaints of roof leaks continued in 2004 and 2005, even after Mr.

Magdovitz dispatched Mr. Willis twice to conduct repairs. A38-57, 74; PSUMF ¶

11.

Plaintiff concedes that “there were leaks” in the Ensley Station roof but

nevertheless asserts that such leaks were “repaired” by Mr. Spencer and Mr. Willis,

thereby fulfilling plaintiff’s obligations under paragraphs 7 and 10(c) of the lease.

See Pl.’s Resp. at 8; see also id. at 1 (“[T]he Plaintiff fulfilled its maintenance

obligation to the Defendant when it repaired the roof on the leased property . . . .”).

However, Ensley offers no evidence to support this claim, or to rebut the evidence

demonstrating that the Ensley Station roof continued to leak despite Mr. Spencer’s

and Mr. Willis’s efforts. As noted supra, mere denials, conclusory statements, or

evidence that is merely colorable or not significantly probative are not sufficient to

preclude summary judgment. See Anderson, 477 U.S. at 248-50, 256; Matsushita,

475 U.S. at 586; Barmag, 731 F.2d at 835-36. Under this binding authority,

plaintiff’s bald and unsupported assertion is plainly insufficient to demonstrate the

existence of a genuine issue of material fact regarding plaintiff’s failure to remedy

the ongoing leaks at Ensley Station.

Furthermore, the court agrees with the government that plaintiff has not

demonstrated a genuine issue of fact as to the cause of the leaks. As noted above,

the moisture survey conducted by Mr. House on April 18, 2005 revealed

“extremely high” levels of moisture “under the roof membrane in all locations

throughout the entire roof area.” A66-67. Such high moisture levels, Mr. House

concluded, signaled that water had been “entering the roof system and building for

some time.” A67 (emphasis added). Additionally, Mr. House observed

particularly high levels of moisture “at the perimeter [of the roof] and [in] locations

around the metal flashing collars.” A66. This condition, Mr. House concluded,

resulted from improper sealing of metal drip edges and flashing collars, as well as

improper installation and sealing of the granulated modified bitumen surface

material overlaying the roof. A67, 69-73.

Ensley offers nothing to challenge Mr. House’s credentials as an expert, and

proffers no rebuttal to Mr. House’s findings and conclusions other than to assert

13

that they are “directly contrary” to the testimony provided by Mr. Willis. 7 Pl.’s

Resp. at 9. Plaintiff relies specifically upon the portion of Mr. Willis’s deposition

testimony in which he stated that the surface material installed on the Ensley

Station roof “is about a sixteenth of an inch thick” and “wo[uldn’t] take a big

staple to go through it,” as well as his testimony that the roof “can’t do nothing but

leak” as a result of the 3/8 inch staples used by the Postal Service to secure the tarp

to the roof. A181; see Pl.’s Resp. at 9. Ensley contends that this testimony

demonstrates a “genuine issue of material fact as to whether and to what extent the

Defendant is responsible for the roof leaks at Ensley [Station]” because “1/16th of

an inch of roofing material is less than 3/8th of an inch of metal staple.” Pl.’s

Resp. at 9.

Undercutting plaintiff’s argument, however, are two factors. The first is Mr.

Willis’s lack of credentials as even a licensed roofer, let alone as an expert in

roofing. The second consideration is Mr. Willis’s own admission that he never

inspected underneath the surface of the Ensley Station roof and therefore did not

know the actual thickness of the roof or whether the staples had actually punctured

the roof. See A176, 181-82. To preclude summary judgment, Ensley must do

more than offer “[m]ere denials or conclusory statements”; it “must point to an

evidentiary conflict created on the record by at least a counter statement of a fact or

facts set forth in detail in an affidavit by a knowledgeable affiant.” Barmag, 731

F.2d at 836 (emphasis added). Under this standard, Mr. Willis’s purely speculative

statement that the roof “can’t do nothing but leak” as a result of the Postal

Service’s act of stapling a tarp to a portion of the roof cannot establish a genuine

issue of fact regarding the cause of the leaks at Ensley Station. Accordingly, the

court agrees with defendant that “Ensley does not meaningfully dispute the

findings and conclusions made by [Mr.] House regarding the roof’s condition,” and

therefore plaintiff has failed to establish a genuine dispute of fact as to the cause of

the ongoing leaks at Ensley Station as well as its failure to remedy those leaks. See

Def.’s Reply at 2.

7

/ Although Mr. Willis was shown photographs taken by Mr. House during his April 18,

2005 investigation, he was not asked to offer any opinion as to Mr. House’s findings and

conclusions with respect to the condition of the roof. See A185-86, 194-95.

14

B. Whether the Government Was Entitled to Replace the Roof and

Offset the Cost of Replacement against Rents Owed Plaintiff

under the Lease

The government next argues that the Postal Service “was well within its

rights [under the lease] to offset the amount that it owes [Ensley] in rents against

the cost of the roof as a setoff.” Def.’s Mot. at 11; see also Def.’s Reply at 3-4, 7-

9. The court agrees, for the following reasons.

“The right of setoff (also called ‘offset’) allows entities that owe each other

money to apply their mutual debts against each other, thereby avoiding the

absurdity of making A pay B when B owes A.” Citizens Bank of Md. v. Strumpf,

516 U.S. 16, 18 (1995) (citation and internal quotation marks omitted). “[S]etoff is

a device that facilitates the efficient reconciliation of competing claims between

the same parties.” J.G.B. Enters., Inc. v. United States, 497 F.3d 1259, 1261 (Fed.

Cir. 2007) (citing Strumpf, 516 U.S. at 18).

The seminal case regarding the government’s right of setoff is United States

v. Munsey Trust Co. of Washington, D.C., 332 U.S. 234 (1947) (Munsey). In

Munsey, the government had retained percentages of progress payments owed to a

contractor on six contracts. 332 U.S. 234, 237. The contractor defaulted on a

subsequent contract, resulting in damages to the government which the government

offset against the retained progress payments. Id. In holding that the government

properly exercised its right of setoff, the United States Supreme Court stated that

“[t]he government has the same right which belongs to every creditor, to apply the

unappropriated moneys of his debtor, in his hands, in extinguishment of the debts

due to him.” Id. at 239 (citations and internal quotation marks omitted).

Following Munsey, the United States Court of Appeals for the Federal

Circuit and its predecessor, the Court of Claims, “have repeatedly recognized the

government’s right of set-off” as a matter of federal common law. Johnson v. All-

State Constr., Inc., 329 F.3d 848, 852 (Fed. Cir. 2003) (citing cases); see also

Applied Cos., 144 F.3d at 1476. Under this precedent, the government’s common

law setoff rights can be defeated or constricted only by “explicit contractual,

statutory, or regulatory language.” J.G.B., 497 F.3d at 1261 (citing Munsey, 332

U.S. at 239, and Applied Cos., 144 F.3d at 1476); see also Johnson, 329 F.3d at

15

853 (citations omitted); Cecile Indus., Inc. v. Cheney, 995 F.2d 1052, 1055 (Fed.

Cir. 1993).

Defendant points out that the lease contains no language expressly

prohibiting the Postal Service from making repairs and deducting the cost of such

repairs from rent due under the lease in the event of the lessor’s failure to maintain

the premises in accordance with paragraphs 7 and 10(c) of the lease. See Def.’s

Mot. at 11 (“Here, the lease contains ‘no prohibition against setoffs.’” (quoting

Applied Cos., 144 F.3d at 1476)). Defendant therefore contends that the lease does

not constrict the government’s common law setoff rights. Id. (citing Applied Cos.,

144 F.3d at 1476).

Applying the aforementioned authorities concerning the government’s right

of setoff, the court is compelled to agree with the government on the purely legal

issue of the availability of setoff as a remedy for the lessor’s failure to maintain the

premises in accordance with paragraphs 7 and 10(c) of the lease. Although the

parties frame this issue primarily as one of contract interpretation, the court notes

preliminarily that the government’s setoff rights are grounded in federal common

law, not in the terms of any contract. As noted supra, it is well established that the

government enjoys a right of setoff that can be defeated or constricted only by

“explicit contractual, statutory, or regulatory language.” J.G.B., 497 F.3d at 1261

(citations omitted). And, as previously stated, the lease at issue in this case

contains no language explicitly limiting the government’s setoff rights, including

the government’s right to make repairs and to deduct the cost of such repairs from

rent due under the lease.

Plaintiff nevertheless contends that the Postal Service was not entitled to

replace the roof at Ensley Station and deduct the cost of replacement from rent due

under the lease because paragraph 10(c) implicitly bars this remedy. See Pl.’s

Resp. at 7-8. Specifically, plaintiff relies upon a portion of paragraph 10(c) which

states that “[i]f any building or any part of it on the leased property becomes unfit

for use for the purposes leased, the lessor shall put the same in a satisfactory

condition,” and “[i]f the lessor does not do so with reasonable diligence, the Post

Office Department in its discretion may cancel the lease.” A8; see Pl.’s Resp. at 7-

8. Ensley argues that paragraph 10(c), by listing a particular remedy available to

the Postal Service in the event of Ensley’s breach (i.e., cancellation), implicitly

excludes all other remedies, including self-help repair and rent deduction. Pl.’s

16

Resp. at 7 (stating that paragraph 10(c) “is clear and unambiguous in providing the

Defendant with one remedy for the failure of the lessor to make necessary repairs:

cancel the lease”), 8 (“[T]he words of the Lease should be given the meaning

derived from it by a reasonable intelligent person acquainted with the

contemporaneous circumstances. Using that plain meaning, the Defendant only

had the option to cancel the Lease, not repair the roof and deduct the amount from

the rents.”) (citation omitted). 8

The short answer to plaintiff’s argument with respect to paragraph 10(c) is

that nothing in paragraph 10(c) expressly limits the government’s setoff rights or

precludes the government from making repairs and deducting the cost of such

repairs from rent due under the lease. As explained supra, the absence of any

explicit limitation on the government’s common law setoff rights is dispositive of

the issue of whether the government was entitled to replace the roof and deduct the

cost of such replacement from rent.

The court’s conclusion would be no different even if the court were to

assume that the Postal Service’s right to repair and deduct were a matter of

contract interpretation as to the exclusivity of the remedies enumerated in

paragraph 10(c) of the lease (i.e., cancellation). It is axiomatic that contract

interpretation begins with the plain language of the agreement. E.g., Barron

Bancshares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed. Cir. 2004) (citation

omitted). Paragraph 10(c) states that “[i]f any building or any part of it on the

leased property becomes unfit for use for the purposes leased, the lessor shall put

the same in a satisfactory condition.” A8. It then goes on to state that “[i]f the

lessor does not do so with reasonable diligence, the Post Office Department in its

discretion may cancel the lease.” Id. (emphasis added). This permissive language

clearly connotes non-exclusivity as to the remedies available to the Postal Service

in the event of the lessor’s failure to maintain the premises. The plain language of

8

/ Ensley also suggests that interpreting the lease to allow self-help repair and rent

deduction would “render portions of the [lease] meaningless,” thereby violating a basic canon of

contract interpretation. Pl.’s Resp. at 7 (citing Lockheed Martin IR Imaging Sys., Inc. v. West,

108 F.3d 319, 322 (Fed. Cir. 1997), McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434

(Fed. Cir. 1996), and Fortec Constructors v. United States, 760 F.2d 1288, 1292 (Fed. Cir.

1985)). Defendant is correct to point out, however, that Ensley “fails to identify what provision

of the lease, if any, is rendered meaningless” under the government’s proffered interpretation.

Def.’s Reply at 8. The court therefore rejects plaintiff’s perfunctory, and unsupported, argument.

17

paragraph 10(c) therefore undermines Ensley’s argument that the Postal Service’s

remedies were limited to cancellation of the lease.

Plaintiff’s argument with respect to paragraph 10(c) is also in conflict with

case law interpreting similar lease provisions. “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.” Ginsberg v.

Austin, 968 F.2d 1198, 1200 (Fed. Cir. 1992) (citing Prudential Ins. Co. of Am. v.

United States, 801 F.2d 1295, 1298 (Fed. Cir. 1986)). When federal law does not

answer the question presented, however, a court may “look to general property and

contract law principles as they are embodied in state law pronouncements.” Id.

(citations omitted).

The parties do not cite, and the court has not found, any decisions of the

Federal Circuit or this court (or their predecessors) involving similar lease

provisions or addressing the exclusivity of remedies enumerated in Postal Service

leases. Nevertheless, the court notes that at least two federal district courts, in

construing nearly identical provisions in Postal Service leases, have held that the

enumeration of particular remedies for the lessor’s failure to maintain the leased

premises did not render those remedies exclusive of all remedies otherwise

available to the Postal Service. See J&R Realty Co. v. United States, 418 F. Supp.

391, 394 (E.D. Pa. 1976) (in an action by a lessor for recovery of rent withheld by

the Postal Service as a setoff against the cost of repairs undertaken by the Postal

Service, holding that “the government was justified in withholding from its rental

payments the costs of . . . repairs determined to be necessary” notwithstanding a

lease provision similar to paragraph 10(c)); McClure v. United States, 382 F. Supp.

988, 991-92 (D. Kan. 1974) (construing a lease provision identical to paragraph

10(c) in an action by a lessor for recovery of rent withheld by the Postal Service,

and holding that the government “was not limited in remedies to an abatement of

the rent or cancellation but could elect to make the repairs and deduct the expense

from the rental payments”).

Likewise, as the government points out in its briefs, the Postal Service Board

of Contract Appeals, in construing similar lease provisions, has repeatedly held

that the Postal Service may make repairs to leased buildings upon the lessor’s

failure to make necessary repairs and may recover the cost of such repairs through

18

rent deductions. See, e.g., Spodek Nationwide Postal Mgmt. Lease Agreement,

PSBCA No. 4506, 02-1 BCA ¶ 31,733, 2001 WL 1647269 (Dec. 26, 2001)

(construing similar lease provisions and upholding a contracting officer’s decision

requiring a lessor to reimburse the Postal Service for the cost of replacing a roof

that persistently leaked despite previous repairs by the lessor because “those

repairs did not relieve [the lessor] of the responsibility under the lease to maintain

the facility (including the roof) in good repair and tenantable condition”), aff’d sub

nom Spodek v. Potter, 57 F. App’x 867 (Fed. Cir. 2003); Ester, PSBCA No. 3051,

93-3 BCA ¶ 25,960, 1993 WL 106905 (Mar. 31, 1993) (in an action to recover rent

withheld by the Postal Service under a lease requiring the lessor to maintain the

leased premises, holding that the Postal Service was entitled to be reimbursed for

the cost of repairs to the building’s heating system); M.R. Kaplan (Penner Fin.

Grp.) Lease Agreements, PSBCA No. 1147, 87-3 BCA ¶ 19,969, 1985 WL 17355

(Sept. 9, 1985) (in an action to recover rent withheld by the Postal Service under

leases containing similar provisions to those at issue here, holding that “the

absence of any lease provision restricting [the Postal Service’s] use of its federal

common law offset remedy to rentals due under the leases may be construed as

permitting that remedy”) (citation omitted); Def.’s Reply at 8.

The court also notes, as additional support for defendant’s position, that at

least two federal circuit courts of appeal, in construing state law, have held that

contract provisions listing particular remedies for breach do not render the

enumerated remedies exclusive absent an express limiting provision. See, e.g.,

Advanced Bodycare Solutions, LLC v. Thione Int’l, Inc., 615 F.3d 1352, 1362 (11th

Cir. 2010) (concluding, under Georgia law, that a provision of an installment

contract stating that the supplier could terminate or renegotiate the agreement if the

purchaser “fail[ed] to order and pay for at least the minimum dollar amount of

[p]roducts during any applicable period of time” did not effectively limit the

supplier’s remedies to the listed remedies because the contract did not clearly

express that the listed remedies were exclusive); Am. Nat’l Bank & Trust Co. of

Chicago v. K-Mart Corp., 717 F.2d 394, 398 (7th Cir. 1983) (applying Illinois law

to hold that “[t]he mere fact that a contract provides remedies a tenant may pursue

on breach of a landlord’s covenant does not necessarily limit the remedies

available”) (citation omitted); cf. United States v. Paddock, 178 F.2d 394, 396 (5th

Cir. 1949) (“It is a generally recognized principle of law that remedies provided in

a contract for breach of warranty are permissive only, and not exclusive unless so

provided in the contract either expressly or by necessary implication.”) (citations

19

omitted). While these federal courts’ interpretations of state law are not

dispositive, they are in harmony with both state law and respected treatises and,

accordingly, constitute additional persuasive authority in support of the

government’s position in this case. See, e.g., Marini v. Ireland, 56 N.J. 130, 146

(1970) (“If . . . a landlord fails to make repairs and replacements of vital facilities

necessary to maintain the premises in a livable condition for a period of time

adequate to accomplish such repair and replacements, the tenant may cause the

same to be done and deduct the cost thereof from future rents.”); 25 Richard A.

Lord, Williston on Contracts § 66:89, at 57 (4th ed. 2002) (citing various state

court decisions, as well as federal court decisions applying state law, for the

proposition that “[o]n the breach of a covenant by the landlord to repair, the tenant

may make the repairs himself or herself and recover the reasonable expense of

doing so”).

C. Whether the Government Was Entitled to Offset the Cost of

Replacement against Real Estate Taxes Owed Pursuant to the Tax

Clause

With respect to Ensley’s allegation that the Postal Service breached the lease

by withholding property taxes required to be paid pursuant to the Tax Clause, the

government contends that “the terms of the [Tax Clause] unambiguously provide

that real estate taxes are payable to the lessor as rent,” and therefore “in exercising

the Government’s right to a setoff, the Postal Service did not breach the lease when

it chose to credit the real estate tax rent payments to offset the cost of the roof.”

Def.’s Mot. at 17. In addition, defendant argues that “even if the [Tax Clause] did

not state that the real estate taxes were payable as rent, the Postal Service still

would not have breached the lease because the lease does not preclude setoffs,”

including setoffs by means of withholding tax payments. Id.

In response, Ensley argues that the express terms of the Tax Clause prohibit

the government from offsetting the cost of repairs against property tax payments.

See Pl.’s Resp. at 9-11. The specific language upon which plaintiff relies is the

portion of the Tax Clause requiring the Postal Service to pay the lessor’s property

taxes “by check made payable to the lessor and the taxing authority” and requiring

the lessor to “indorse said check and turn the same over to the said taxing

authority.” A16; see Pl.’s Resp. at 9-10. Ensley suggests that the government is

precluded from setting off repair costs against tax payments because, pursuant to

20

the “clear language” of the Tax Clause, the taxing authority (not the lessor) “ends

up with the funds.” Pl.’s Resp. at 10. Additionally, and in the alternative, Ensley

invokes the rule of contra proferentem to argue that, to the extent that the Tax

Clause is found to be ambiguous, it “should be construed against the Defendant,

who drafted the [T]ax [C]lause,” because “the Plaintiff’s interpretation of the [T]ax

[C]lause is reasonable, and the Plaintiff has reasonably relied on its interpretation.”

Id. (citing cases).

The court finds Ensley’s arguments with respect to the Tax Clause to be

meritless, and agrees with defendant that the Postal Service was not precluded

from withholding tax payments as a setoff against the cost of replacing the roof at

Ensley Station. As an initial matter, the court has already determined that nothing

in the lease expressly limits the government’s setoff rights or precludes the

government from making repairs and deducting the cost of such repairs from rent

due under the lease. As defendant correctly notes, the Tax Clause requires the

Postal Service to pay the lessor’s property taxes as “additional rent due

hereunder.” A16 (emphasis added); see Def.’s Mot. at 17; Def.’s Reply at 13. By

expressly including property tax payments as part of the “rent due” under the lease,

the Tax Clause clearly permitted the government to offset the cost of repairs

against tax payments to the same extent as with any other forms of rent.

Additionally, the court rejects the notion, advanced by Ensley, that the

Postal Service was precluded from withholding tax payments as a setoff merely

because the taxing authority, not the lessor, ultimately received the payments.

Plaintiff offers no support for this argument other than to suggest that “[a]ll of the

cases cited by the Defendant concerning the right to setoff” are distinguishable

because, unlike in those cases, “[i]n this situation the lessor isn’t actually getting

the money.” Pl.’s Resp. at 10. Plaintiff fails to explain how this distinction makes

any difference with regard to the Postal Service’s ability to invoke its setoff rights.

Indeed, the plain terms of the lease undermine Ensley’s position. The Tax Clause

required the lessor to “present to the Government the general real estate tax bills . .

. for taxes due and payable on the land and buildings hereby demised” and required

the Postal Service to pay such bills “as additional rent.” A16. Regardless of the

ultimate recipient of the tax payments, this language plainly conferred a financial

benefit to the lessor, and imposed a corresponding financial obligation upon the

Postal Service, which could be offset against the cost of necessary repairs

undertaken by the Postal Service.

21

Finally, the court agrees with defendant that “Ensley’s invocation of the rule

of contra proferentem is misplaced.” Def.’s Reply at 14. As the Federal Circuit

has held, “contra proferentem is a rule of last resort that is applied only where

there is a genuine ambiguity and where, after examining the entire contract, the

relation of the parties and the circumstances under which they executed the

contract, the ambiguity remains unresolved.” Gardiner, Kamya & Assocs., P.C. v.

Jackson, 467 F.3d 1348, 1352 (Fed. Cir. 2006) (citation and internal quotation

marks omitted). A contract provision is ambiguous only if it is “susceptible to

more than one reasonable interpretation.” HPI/GSA-3C, LLC v. Perry, 364 F.3d

1327, 1334 (Fed. Cir. 2004) (citing Jowett, Inc. v. United States, 234 F.3d 1365,

1368 (Fed. Cir. 2000)). The court has already determined that the Tax Clause, by

expressly including property tax payments as part of the “rent due” under the lease,

unambiguously permitted the government to offset the cost of repairs against tax

payments to the same extent as with any other forms of rent. Ensley has failed to

demonstrate any ambiguity in the Tax Clause which would support the invocation

of contra proferentem.

CONCLUSION

For all of the foregoing reasons, the court concludes that Ensley has failed to

demonstrate a genuine issue of material fact as to the cause of the ongoing leaks at

Ensley Station as well as its failure to remedy those leaks. Furthermore, the court

concludes that, under the plain language of the lease, the Postal Service was

entitled to offset the cost of replacing the leaky roof against rent due Ensley under

the lease, including by withholding tax payments otherwise due under the Tax

Clause. Defendant is therefore entitled to summary judgment on each of plaintiff’s

claims. 9

Accordingly, it is hereby ORDERED that

9

/ With regard to Ensley’s request for an award of attorney fees in Count III of the

complaint, the court notes that attorney fees may be awarded under the Equal Access to Justice

Act only to a “prevailing party.” 28 U.S.C. § 2412(d)(1)(A) (2012); see, e.g., 360Training.com,

Inc. v. United States, 111 Fed. Cl. 356, 360 (2013) (citing Comm’r, Immigration &

Naturalization Serv. v. Jean, 496 U.S. 154, 158 (1990)).

22

(1) Defendant’s Motion for Summary Judgment, filed August 29, 2013, is

GRANTED;

(2) The Clerk’s Office is directed to ENTER final judgment in favor of

defendant DISMISSING the complaint with prejudice; and

(3) Each party shall bear its own costs.

/s/Lynn J. Bush

LYNN J. BUSH

Senior Judge

23