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No. 14-1213C FILED
Filed: August 19' 2015
AUG 19 zorl
U,S, COURT OF
* FEDERALCLATMS
DONALD A. WOODRUFF and THE . pro Se plaintiff; Breach of
DUCKEGROUPE, LLC, Co"tract; Motion to Dismiss;
plaintiffs. * Lack of Subject Matter
* Jurisdiction; Privity of Contract;
v. * Election of Forum; Statute of
* Limitations
UNITED STATES,
....o:":o:":...
Donald A. Woodruff, Bay Village, OH, plq se.
Amelia Lister-Sobotkin, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. for the defendant. With
her were Franklin E. White, Assistant Director, Robert E. Kircchman, Jr,, Director,
Commercial Litigation Division, Benjamin C. Mizer, Principal Deputy Assistant Attorney,
Civil Division, Washington, D.C. Of counsel, Lindsay C. Roop, Office of Regional
Counsel, Department of Veterans Affairs, Columbus, OH.
OPINION
HORN. J.
FINDINGS OF FACT
On January 20,2015, Donald A. Woodruff together with The DuckeGroupe, LLC,t
doing business as Haven House for Homeless Veterans, filed a transfer complaint against
the United States in the United States Court of Federal Claims, alleging a breach of
contract by the United States Department of Veterans Affairs and one of its affiliated
facilities. On April 18, 2014, plaintiffs had filed a complaint, the caption of which listed
them as "Haven House for Veterans (dba) The DuckGroupe, Donald A. Woodruff," in the
United States District Court for the Northern District of Ohio. The complaint listed "Louis
Stokes Veterans Adminishation. VA Healthcare Systems of Ohio," a facility operated by
1In his filings with this court, Mr. Woodruff refers to this entity as both "The DuckGroupe"
and "The Duck Groupe." Because it was used in the caption of the complaint with this
court, the court will use "DuckGroupe" throughout this Opinion.
the United States Department of Veterans Affairs (VA), and the Office of Acquisition and
Materiel Management, an agency of the VA as the defendants.2 In the April 18, 20'14
complaint submitted to the District Court, plaintiffs, with Mr. Woodruff acting pro g,
sought $47,000.00 in damages for slander and an alleged breach of a contract
DuckeGroupe entered into with the VA to provide housing and other services to homeless
veterans. Plaintiffs requested judicial review of a previous decision of the United States
Civilian Board of Contract Appeals (CBCA). On October 8,2014, an Order issued by the
District Court amended the caption of the case in the District Court to list Donald A.
Woodruff as the sole plaintiff, dismissed Mr. Woodruff's slander claim and request for
judicial review, and ordered that the remaining claim for breach of contract be transferred
to the United States Court of Federal Claims. See Woodruff v. Louis Stokes Veterans
Admin. VA Healthcare Svs. of Ohio, No. 1:14-CV-837 (N.D. Ohio Oct. 8,2014). As noted
above, a complaint was filed in this court on January 20, 2015 listing the plaintiffs as "THE
DUCKGROUPE, LLC., dba HAVEN HOUSE FOR HOMELESS VETERANS, Donald A.
Woodruff' and was signed by Mr. Woodruff. (capitallzation in original).
The genesis of the dispute arose in July 2010, when the Louis Stokes Cleveland
Department of Veterans Affairs Medical Center in Brecksville, Ohio issued a Request for
Quote (RFQ), number VA25010RQ0236, seeking a contractor to provide services to
veterans in its Health Care for Homeless Veterans program, in order to "remove homeless
Veterans from the street or habitation unfit for Veterans and place them in community-
based, residential environments with sufficient therapeutic services to meet the needs of
those Veterans." The services to be provided by the contractor sought in this RFQ
included room and board, meals, laundry services, and therapeutic and rehabilitative
services.
The RFQ stipulated that the contract would be "an indefinite delivery, indefinite
quantity contract because it is impossible to determine with any certainty the amount of
services that will be required under this contract." The solicitation further specified that
"no obligation will be incuned by the Department of Veterans Affairs except for services
rendered under this contract pursuant to referrals issued by the Department of Veterans
Affairs for residential treatment of specific beneficiaries." The RFQ also provided that the
contract period would include a base year, 2010-11, and four successive option years,
covering the years 201'l-12,2012-13,2013-14, and 2014-15, the exercise of which would
be left to the "sole discretion" of the VA. The solicitation further specified that the
maximum value of each yearly term would be calculated according to the formula "daily
rate x number of available beds x 365 davs."3
2The court notes that although a motion to proceed in forma pauperis in the suit in the
Northern District of Ohio was filed and granted, no additional application was filed in this
court following the transfer of this case to the United States Court of Federal Claims
pursuant to the District Court's October 8, 2014 transfer Order. The court, however,
continues to treat Mr. Woodruff as a pro se plaintiff.
DuckeGroupe, a limited liability company organized under the laws of the State of
Ohio, submitted a quote in response to the VA's RFQ on July 28, 2010, offering to provide
twelve beds for homeless veterans, at a rate beginning at $50.00 per veteran per day,
resulting in a maximum cost for the first year of $219,000.00. The quote also described
Mr. Woodruff as a "DIRECTOR" of the DuckeGroupe. (capitalization in original).
According to plaintiffs complaint in the District Court, after further discussions, the parties
agreed that DuckeGroupe would maintain the capacity to serve up to nine veterans at its
facility, Haven House, at a per-diem price of $60.00 per veteran per day, which computes
to a maximum cost for the first year of $ 197,100.00.4 The maximum occupancy figure and
per-diem rate described above were memorialized in the final contract, number VA250-
P-0592, which was executed by Mr. Woodruff as "MEMBER Ducke Groupe, LLC" on
September 22,2010, and by Dara Greene on behalf of the VA on September 23,2010.
The price-cost schedule attached to the executed contract guaranteed DuckeGroupe
neither a minimum payment nor a minimum level of occupancy. With respect to payment,
the price-cost schedule provided that payments made by the VA under the contract "shall
be made monthly and in arrears upon receipt of properly prepared invoice," which "will be
paid at the per diem rate for days of residential placement already completed with services
provided as described in the Statement of Work."
Problems in the contractual relationship allegedly began to arise at the end of the
base year. According to plaintiff's complaint in the District Court, sometime in September
or October 201 1 the Contracting Officer's Technical Representative informed
,
DuckeGroupe that, because the VA had not yet exercised its 2011-12 option, Haven
House had to send out any veterans then staying at the facility by November '1, 2011 and
direct them to a shelter located at 2100 Lakeside Avenue in Cleveland, Ohio. On October
1, 2011, the VA's Contracting Officer assigned to the contract, Glen Johnson, executed
an Amendment of Solicitation/Modification of Contract, which exercised the 2011-12
option year, retroactive to September 23, 2011. The document indicated that the per-diem
rate for veterans housed at DuckeGroupe's facility would remain at $60.00 per veteran
per day, and that "[a]ll other terms and conditions of the agreement shall remain the
same." According to plaintiff, however, this amended contract was not received by
DuckeGroupe until November 17, 2011, despite being executed by both parties as of
October 1,2011.
Occupancy in the Haven House facility remained low in the early months of the
2011-12 option year before reaching an average occupancy level of 6.7 out of g beds
filled per day in February 2012. According to Mr. Woodruffs complaint in the District
Court, however, his "efforts and program sustainability was challenged and jeopardized"
3 While 365 days were listed for the 20 1 0-1 1 base year and 2012-13,20'13-14, and 2014-
15 option years, the formula for the 2011-12 option year would include 366 days, reflecting
the fact that2012 was a leap year.
a The court notes that despite this calculation of the maximum cost of the contract
assuming full occupancy, the price-cost schedule attached to the executed contract states
that "[t]otal funding for this new program for FY 2010 is $177,390." No explanation has
been given for this discrepancy, nor have the parties referenced it in any of their filings.
by a unilateral change in policy, of which DuckeGroupe was informed in February 2012.
On February 10,2012, Nicole Wiley, an employee of the VA, emailed Mr. Woodruff to
confirm several changes to the intake and discharge procedures Haven House was to
follow under the parties' contract, namely that any veteran seeking admission to Haven
House must first be cleared though the 2100 Lakeside Avenue shelter's intake procedure
and "should have an exit plan before being admitted to Haven House." lt appears that Mr.
Woodruff expressed disagreement with the VA's intake process prior to Ms. Wiley's
February 10,2012 email, stating in a January 31 ,2012 email to Veronica Hawkins,
another VA employee, that "our contention is that there is a marked difference between
concerned screenings and the making of decisions in a vacuum without collaborative
discussion." Mr. Woodruff claims the policy changes outlined in Ms. Wiley's email
precipitated a sharp decline in Haven House's occupancy overthe remainder of the option
period.
Concerned aboutthe continued low occupancy rate at Haven House, Mr. Woodruff
met with Ms. Hawkins on or about March 3, 2012, to explain that DuckeGroupe was
running at a deficit, given that the occupancy of Haven House was below the level needed
to cover its fixed operating expenses. During this meeting, according to plaintiffs
complaint in the District Court, and again in a May 1 1,2012 email to Kathleen Penman,
another VA employee, Mr. Woodruff stated that Haven House needed to maintain an
occupancy rate of at least six out of the nine available beds in order for DuckeGroupe to
cover its operational expenses and ensure that it could continue to fulfill its contractual
obligations. According to Mr. Woodruffs accounting, Haven House's average daily
occupancy rate did not reach six out of nine beds filled in any month aftet F ebuary 2012.
On June 27,2012, Mr. Woodruff received what is described in the District Court
complaint as "the most disturbing communication of all," an email from Jaroslaw
Romaniuk, a VA employee, informing him that because "we had to deal with the fact that
in recent months we spent less money on our contract with Haven House that [sic] it was
anticipated," the number of beds requested under the contract would be reduced from
nine to five for the remainder of the option year. An email Mr. Woodruff received from Ms.
Wiley the following day, June 28,2012, however, explained that Mr. Romaniuk's email
had been the result of a "misunderstanding," and instructed Mr. Woodruff to disregard the
previous day's email and continue operating Haven House at the nine-bed capacity
stipulated in the contract.
On September 7, 2012, Mr. Woodruff was informed in an email from the
Contracting Officer, Mr. Johnson, that the VA had decided not to exercise the 2012-13
option in DuckeGroupe's contract, citing the department's changing organizational needs
as the reason for this decision. In his reply to Mr. Johnson, dated September 17, 2012,
Mr. Woodruff reiterated his concerns about the "serious financial deficit" in which
DuckeGroupe found itself due to the decline in occupancy rates, blaming the VA's actions,
including the delayed renewal of the 2011-12 option and unilateral policy changes
communicated to him in February 2Q12, with having "the net effect of creating an under-
utilization of Haven House as the primary resource intended in the contract." Also in that
correspondence, Mr. Woodruff requested that the VA "honor the terms of the contract by
reimbursing us [DuckeGroupe] the minimum cost of providing the services at Haven
House Residence," given that the occupancy level of Haven House averaged 4.3 beds
forthe2011-12 option year, belowthe six-bed break-even mark identified by Mr. Woodruff
as necessary for DuckeGroupe to cover its operating expenses.
Mr. Woodruff next emailed Mr. Johnson on October 11, 2012, requesting an
equitable adjustment in the sum of $47,440.00 to cover his operating deficit, a request
echoed in a follow-up email, apparently sent on October 15,2012,5 and another email to
Mr. Johnson which, Mr. Woodruff claims, was sent on November 1,2012. The Contracting
Officer formally denied Mr. Woodruff's claim in a decision dated January 9, 2013. In the
decision, Contracting Officer Johnson stated that the contract was established as one of
indefinite delivery and indefinite quantity and specified that the government would bear
no obligation except as to services rendered. The decision indicated that the government,
having timely paid all of the monthly invoices issued by Haven House, had satisfied its
contractual obligations and, therefore, "does not owe Haven House any additional
compensation for their services . . . ." The correspondence conveying this decision
concluded by informing Mr. Woodruff that he could appeal the decision either by sending
a notice of intent to appeal to the CBCA within ninety days of receiving the decision, or,
alternatively, by bringing an action before this court within twelve months of receiving the
decision. See 41 U.S.C. 57104 (20121.
On February 2,2013, DuckeGroupe timely filed a Notice of Intent to Appeal with
the CBCA, seeking review of its claim for $47,440.00 in reimbursement for its alleged
operating deficit, pursuant to CBCA's accelerated small-claims procedure under 48
C.F.R. S 6101 .52. DuckeGroupe claimed it was entitled to such reimbursement given its
reasonable reliance on the government's estimated need of nine beds in calculating the
$60.00 per-diem rate, which, it asserted, "was reasonably based on our assumption that
there would be approximately nine veterans occupying the facilities." In a June 24,2013
opinion, the CBCA denied DuckeGroupe's claim for reimbursement. The CBCA found
that the VA only was obligated to pay DuckGroupe at the per-diem rate for those veterans
actually referred to and served by Haven House, and that "[t]he contractor, not the
agency, bore the risk that beds would not be utilized fully over the base and option
periods." DuckeGroupe subsequently filed a request for reconsideration, which was
denied by the CBCA on October 28,2013. The CBCA concluded in its reconsideration
decision that "[t]he contractor has not provided a valid basis for reconsideration," because
"[t]he simple fact that the agency ordered fewer services during the first option year than
estimated at the time of the award does not demonstrate any inaccuracy in formulating
the estimates. " The CBCA also noted that DuckeGroupe "overlook[ed] the explicit
cautions in the solicitation and contract, wherein the agency noted that services to be
required could not be determined with any certainty, and that payment would be based
upon services ordered and rendered."
Following the CBCA's denial of DuckeGroupe's request for reconsideration, on
April 18, 2014, DuckeGroupe and Mr. Woodruff filed the 4 ge complaint, along with a
5The court notes that while no time-stamp appears with this email, the CBCA "Rule 4 File
Index," filed along with Mr. Woodruff's transfer complaint, describes this email
communication as having been sent on October 15,2012.
motion to proceed in forma pauoeris, in the United States District Court for the Northern
District of Ohio, in which the plaintiffs requested judicial review of the CBCA's decision,
alleged claims of breach of contract and slander, and sought relief in the amount of
$47,000.00 in damages and a "permanent injunction against the defendant from
performing certain acts in the future." In an October 8,2014 Order, as noted above, the
District Court removed DuckeGroupe from the caption of the case, granted Mr. Woodruffls
motion to proceed in forma pauperis, dismissed his slander claim and request for judicial
review of the CBCA decision, and ordered the transfer of his remaining breach-of-contract
claim to this court because plaintiff sought damages in excess of $10,000.00. See
Woodruff v. Louis Stokes Veterans Admin. VA Healthcare Svs. of Ohio, No. 1:14-CV-837.
The government has moved to dismiss plaintiffs' complaint in the United States
Court of Federal Claims pursuant to Rules 12(bX1) (2015) and 12(bX6) (2015) of the
Rules of the United States Court of Federal Claims (RCFC), for lack of subject matter
jurisdiction and failure to state a claim for which relief may be granted, respectively. The
government claims that "[t]his Court lacks jurisdiction because Mr. Woodruff is not a party
to the underlying agreement and this matter has already been adjudicated in the Civilian
Board of Contract Appeals (CBCA),' which, citing the Contract Disputes Act (CDA) and
the election doctrine, "foreclosed plaintiffs ability to raise the same claims in this Court."
Moreover, according to defendant, even if this court otherwise had jurisdiction, Mr.
Woodruffls complaint must be dismissed as untimely, because he failed to file it within
twelve months of receiving the contracting ofiicers decision as required by the CDA,41
U.S.C S 7104(bX3). Further, according to defendant, "Mr. Woodruff has failed to allege
any facts which could constitute a breach of contract." According to defendant, the
agreement between the VA and DuckGroupe was "an illusory promise, and not a binding
contract," because it was a requirements contract that did not "contain a definite quantity,
a minimum quantity term, or require exclusivity." Defendant further states that while
"contractual obligations were created when VA actually referred veterans to Duck Group,
at which point VA was bound to pay for the services rendered those veterans," "Mr.
Woodruff has not alleged that VA failed to pay for any services actually provided to
veterans at the per diem rate."
In response, Mr. Woodruff filed a "Motion to Deny Dismissal Motion in order to
Proceed" in this court.6 While written in a somewhat unclear fashion, plaintiffs response
to defendant's motion to dismiss tries to respond to each of defendant's arguments in
favor of dismissal. With respect to defendant's claim that Mr. Woodruff is not privy to the
contract and, therefore, cannot assert a breach claim in this court, plaintiff appears to
claim privity based on the fact that "Plaintiff negotiated the terms of the contract with the
Defendant's Contracting Officer. Thus, according to plaintiff, his ability to act in this
manner constitutes "the doctine of apparent authority." (emphasis in original.) With
respect to Defendant's argument regarding the election doctrine, Mr. Woodruff states:
6As also discussed above, the caption of the transfer complaint filed in this court on
January 20, 2015 listed both Mr. Woodruff and DuckeGroupe as plaintiffs, however,
plaintiff's June 2, 2015 response motion listed only Mr. Woodruff in the caption.
The CBCA heard a case involving an LLC; [sic] Ihe DuckeGroupe vs The
Veterans Administration Plaintiff has subsequently brought a claim before
The United States District Court Northern District of Ohio Court in [sic'
behalf of Plaintiff in [sic] turn that Court 'transferred' the case to the Unitec
States Court of Federal Claim.." [sic] Since that time the Plaintiff has filed
all motions and pleadings in a timely manner.
(emphasis in original).
With regard to the timeliness of the filing, plaintiff cites two decisions by New York
State Courts for the proposition that "'untimely filing does not automatically wanant
dismissa/ where motion is meritorious and the opposing party may not be
prejudiced."' (emphasis in original). As for defendant's claim that plaintifi had failed to
state a valid claim for relief, plaintiff alleges that his complaint has set forth a plausible
factual basis for a breach-of-contract claim, based on what Mr. Woodruff characterizes
as Mr. Romaniuk's unilateral attempt to modify the terms of the contract in the June 27,
2012 email reducing the number of beds required from nine to five. Plaintiff alleges this
was a change only the Contracting Officer himself could effectuate, stating that:
"Whereas parties and
Plaintiff for the Contractor made chanqes in 'the terms and conditions of (the)
contract' a hreach has occurred." (emphasis in original). Additionally, plaintiff claims
the low occupancy of Haven House during the option year violated his reasonable
expectations, stating that "Iu]nder the doctrine of reasonable expectation /reasonable
interpretation if the Government requested approximately '9' beds. [sic] The Plaintiff
reasonably could rely on the fact that nine meant nine." (emphasis in original). This
expectation factored into his acceptance of the per-diem rate of $60.00 per veteran per
day agreed to in the contract. According to plaintiff's reply "[t]he Plaintiffs organization
accepted that proposal with the understanding that Government needed 'approximately
9 beds."'7
DISCUSSION
As a preliminary matter, the court addresses the issue of the plaintiffs listed in the
caption of the pro se transfer complaint filed in this case: "THE DUCKEGROUPE, LLC.,
dba HAVEN HOUSE FOR HOMELESS VETEMNS, Donald A. Woodruff." (capitalization
in original). While the District Court, in its Order dated October 8,2014, may or may not
have formally dismissed DuckeGroupe from the case filed in the Northern District of Ohio,
it amended the caption to list only "Donald A. Woodruff' as the plaintiff. See Woodruff v.
Louis Stokes Veterans Admin. VA Healthcare Svs. of Ohio, No. 1:14-CV-837, slip op. at
1. In a footnote in its Order, the District Court stated that "[a]lthough the complaint also
purports to be filed on behalf of Haven House for Veterans dba the DuckeGroupe,
7 Mr. Woodruff subsequently filed a document with the court titled "PLAINTIFF'S
RESPONSE TO DEFENDANT' REPONSE [sic] TO PLAINTIFF'S MOTION TO
PROCEED." (capitalization in original). This document does not contain any new
arguments not previously made in Mr. Woodruffs "Motion to Deny Dismissal Motion in
order to Proceed."
corporations and non-incorporated organizations cannot appeat pro se in any litigation
and are required to appear in court through an attorney." ![at 1 n.1 . The Rules of the
United States Court of Federal Claims similarly state that "[a]n individual who is not an
attorney may represent oneself or a member of one's immediate family, but may not
represent a corporation, an entity, or any other person in any proceeding before this
court." RCFC 83(a)(3) (2015). See also Talasila. Inc. v. United States,240 F.3d 1064,
1066 (Fed. Cir.) ("[Plaintiffl must be represented by counsel in order to pursue its claim
against the United States in the Court of Federal Claims."), reh'q and reh'q en banc denied
(Fed. Cir.2001); Finast Metal Prods.. lnc. v. United States,'12 Cl. Ct.759,761 (1987)
("[A] corporate 'person' can no more be represented in court by a non-lawyer---even its
own president and sole shareholder-than can any individual."); Affourtit v. United States,
79 Fed. Cl.776,779 (2006) ("A corporation appearing before the United States Court of
Federal Claims . must be represented by an attorney ") This rule applies despite
possible financial hardship imposed on the plaintiff, and despite the fact that Mr. Woodruff
has indicated he cannot afford an attorney in his motion to procceed in forma pauperis
filed with the District Court. See Richdel. Inc. v. Sunspool Corp.,699 F.2d 1366, 1366
(Fed. Cir. 1983) (holding that the plaintiffs "substantial financial hardship" did not waive
the rule requiring corporations to be represented by counsel); Balbach v. United States,
119 Fed. Cl. 681,683 (2015) ("A pro se plaintiff cannot represent a corporation . . . The
Court cannot waive this rule, even for cases of severe financial hardship." (citing Affourtit
v. United States, 79 Fed. Cl. at 780)). Therefore, because corporations may not appear
before the United States Court of Federal Claims without an attorney, DuckeGroupe must
be dismissed from this case, leaving Mr. Woodruff as the sole plaintiff before this court.
The court recognizes, however, that Mr. Woodruff is proceeding pro se, without
the assistance of counsel. When determining whether a complaint filed by a pp g plaintiff
is sufficient to invoke review by a court, pro ge plaintiffs are entitled to liberal construction
of their pleadings. See Haines v. Kerner, 404 U.S. 519,520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh'o denied, 405 U.S. 9a8 (1972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429
U.S. 97, 106 (1976), reh'q denied, 429 U.S. 1066 (1977); Matthews v. United States, 750
F.3d 1320, 1322(Fed.Cir.2014); Diamondv. UnitedStates, 115Fed. C|.516,524,affd,
603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However, "'[t]here is
no duty on the part of the trial court to create a claim which [the plaintiffl has not spelled
out in his [or her] pleading.""'Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scoqin v. United States,33 Fed. C|.285,293 (1995)
(quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 94, atf d,443 F. App'x 542 (Fed. Cn.20111;
Minehan v. United States, 75 Fed. Cl.249,253 (2007). "While a pro se plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing
Huqhes v. Rowe,449 U.S. at 9 and Tavlorv. United States, 303 F.3d 1357, 1359 (Fed.
Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh'o and reh'q en banc denied (Fed. Cir.2002)); see also Shelkofskv v.
United States, 119 Fed. Cl. 133, 139 (2014) ("[While the court may excuse ambiguities
in a pro se plaintiffls complaint, the court 'does not excuse [a complaint's] failures."'
(quoting Henke v. United States,60 F.3d 795,799 (Fed. Cir. 1995)); Harris v. United
States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiffs pleadings are held to a less
stringent standard, such leniency 'with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.
Cl. at 253)).
Even granting the more liberal construction afforded to pro se pleadings, Mr.
Woodruff's sometimes rambling and confusing pleadings fail to assert a valid basis for
this court's jurisdiction. lt is well established that "'subjectmatter jurisdiction, because it
involves a court's power to hear a case, can never be forfeited or waived."' Arbauqh v. Y
& H Coro.,546 U.S.500,514 (2006) (quoting United Statesv. Cotton,535 U.S.625,630
(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press." Henderson
ex rel. Henderson v. Shinseki, 1 31 S. Ct. 1 1 97, 1202 (201 1): see also Gonzalez v. Thaler,
132 S. Ct. 641, 648 (2012) ("When a requirement goes to subjeclmatter jurisdiction,
courts are obligated to consider sua sponfe issues that the parties have disclaimed or
have not presented."); Hertz Corp. v. Friend, 559 U.S.77,94 (2010) ("Courts have an
independent obligation to determine whether subject-matter jurisdiction exists, even when
no party challenges it." (citing Arbauqh v. Y & H Corp., 546 U.S. at 514)); Special Devices.
lnc. v. OEA. lnc.,269 F.3d 1340, 1342 (Fed. Cir.2001) ('tAl court has a dutyto inquire
into its jurisdiction to hear and decide a case." (citing Johannsen v. Pav Less Druq Stores
N.W.. 1nc.,918 F.2d 160, 161 (Fed. Cir. 1990))); View Eno'o. Inc. v. RoboticVision Svs..
lnc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction,
whether the parties raise the issue or not."). "Objections to a tribunal's jurisdiction can be
raised at any time, even by a party that once conceded the tribunal's subjeclmatter
jurisdiction over the controversy." Sebelius v. Auburn Req'l Med. Ctr., 133 S. CI.817,824
(2013); see also Arbauqh v. Y & H Corp., 546 U.S. at 506 ("The objection that a federal
court lacks subjeclmatter jurisdiction . . . may be raised by a party, or by a court on its
own initiative, at any stage in the litigation, even after hial and the entry of judgment.");
Cent. Pines Land Co.. L.L.C. v. United States,697 F.3d 1360, 1364 n.1 (Fed. Cir.2012)
("An objection to a court's subject matter jurisdiction can be raised by any party or the
court at any stage of litigation, including after trial and the entry of judgment." (citing
Arbauoh v. Y & H Corp., 546 U.S. at 506-07)); Rick's Mushroom Serv.. lnc. v. United
States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[Alny party may challenge, or the court
may raise sua sponte, subject matter jurisdiction at any time." (citing Arbauoh v. Y & H
Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'q
and reh's en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and
Fanninq. Phillips & Molnar v. West, 160 F.3d 717,720 (Fed. Cir. 1998))); Pikulin v. United
States, 97 Fed. Cl. 71,76, aooeal dismissed, 425 F. App'x 902 (Fed. Cir. 2011). In fact,
"[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponfe, even
where..'neitherpartyhasraisedthisissue.',
Holdinqs,370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods.. lnc. v. Mead Corp., 134
F.3d 1481, 1485 (Fed. Cir.), reh'q denied and en banc suqqestion declined (Fed. Cir.),
cert. denied,525 U.S.826 (1998)), reh'q and reh'q en bancdenied (Fed. Cir.2004), cert.
qranted in pgg sub. nom Lab. Corp. of Am. Holdinqs v. Metabolite Labs.. lnc., 546 U.S.
975 (2005), cert. dismissed as improvidentlv oranted, 548 U.S. 124 (2006); see also Avid
ldentification Svs., Inc. v. Crvstal lmport Corp., 603 F.3d 967,971 (Fed. Cir.) ("This court
must always determine for itself whether it has jurisdiction to hear the case before it, even
when the parties do not raise or contest the issue."), reh'o and reh'q en banc denied, 614
F.3d 1330 (Fed. Cir.2010), cert. denied, 131 S. Ct.909 (2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need
only state in the complaint "a short and plain statement of the grounds for the court's
jurisdiction," and "a short and plain statement of the claim showing that the pleader is
entitled to relief." RCFC 8(aX1), (2) (2015); Fed. R. Civ. P. 8(aXl), (2) (2015); see also
Ashcroft v. lqbal, 556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v. Twomblv, 550 U.S.
544,555-57,570 (2007)). "Determination of jurisdiction starts with the complaint, which
must be well-pleaded in that it must state the necessary elements of the plaintiffs claim,
independent of any defense that may be interposed." Hollev v. United States, 124 F.3d
1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1 (1983)), reh'q denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v.
United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaullev Inv. Grp.. lnc. v. United
States, 93 Fed. Cl. 710,7'13 (2010). "Conclusory allegations of law and unwarranted
inferences of fact do not suffice to support a claim." Bradlev v. Chiron Corp., 136 F.3d
1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Coro., 501 F.3d 1354' 1363
n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C Wright and
A. Miller, Federal Practice and Procedure S 1286 (3d ed.2004)). "A plaintiffs factual
allegations must'raise a right to relief above the speculative level' and cross'the line from
conceivable to plausible."' Three S Consultino v. United States, 104 Fed. Cl. 510' 523
(2012) (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964 (Fed.
cir.), reh'q denied (Fed. cir. 2014). As stated in Ashcroft v. lqbal, "[a] pleading that offers
'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will
not do.' 550 U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement."'Ashcroft v. lqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twomblv, 550 U.S. at 555).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) ("ln addition, when ruling on a defendant's motion to
Oismiss, a judge must accept as true all of the factual allegations contained in the
complaint." (citing Bell Atl. corp. v. Twomblv, 550 u.s. at 555-56 (citing Swierkiewicz v.
Sorema N. A.,534 U.S.506,508 n.1 (2002)))); Scheuerv. Rhodes,416 U.S.232'236
(1974) ("Moreover, it is well established that, in passing on a motion to dismiss, whether
on the ground of lack of jurisdiction over the subject matter or for failure to state a cause
of action, the allegations of the complaint should be construed favorably to the pleader."),
abroqated on other qrounds by Harlow v. Fitzqerald, 457 U.S. 800 (1982), recoqnized by
Davis v. Scherer,468 U.S. 183, 190 (1984), reh'q denied,468 U.S. 1226 (1984); United
Pac. lns. Co. v. United States,464 F.3d 1325,1327-28 (Fed. Cir.2006); Samish lndian
Nation v. United States,419 F.3d 1355, 1364 (Fed. Cir.2005); Boise Casqadelorp. v.
Unit,ed States, 296 F.3d 1339, 1343 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir.
2002), cert. denied, 538 U.S. 906 (2003). lf a defendant or the court challenges jurisdiction
10
or plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the
complaint, but must instead bring forth relevant, competent proof to establish jurisdiction.
McNutt v. Gen. Motors Acceotance Corp. of lnd.. 298 U.S. 178, 189 (1 936); see also Land
v. Dollar, 330 U.S. 731 ,735 n. 4 (1947); Revnolds v. Armv & Air Force Exch. Serv.. 846
F.2d746,747 (Fed. Cir. 1988); Catellus Dev. Corp. v. United States.31 Fed. C|.399,
404-05 (1994).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States
or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S,C. S 1491(aX1) (2012). As interpreted bythe United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee
Cntv.. Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'q en banc denied
(Fed. Cir.2007), cert. denied,552 U.S. 1142(2008); Palmerv. United States, 168 F.3d
1310,1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States . . . ." United States v. Mitchell, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's Mushroom Serv.. lnc. v.
United States, 521 F.3d at 1343 ("[P]laintiff must . . . identify a substantive source of law
that creates the right to recovery of money damages against the United States."). In
Ontario Power Generation. Inc. v. United States, the United States Court of Appeals for
the Federal Circuit identified three types of monetary claims for which jurisdiction is
lodged in the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types. . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver. Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum."
Eastport S.S. lCorp. v. United States, 178 Ct. Cl. 599, 605-06,] 372F.2d
[1002,] 1 007-08 t(1967)l (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clapp v. United States , 127 Ct. Cl. 505, 1 17 F. Supp. 576, 580 (1 954)) . . . .
11
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum." ld.; see also lUnited States v. ITestan, 424 U.S
1392,1 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating"
statute.
Ontario PowerGeneration, Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004);
see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
Privitv of Contract with the United States
As a threshold matter, the court must decide whether Mr. Woodruff, the sote
remaining plaintiff in this case, was in privity of contract with the United States, as is
required to sue the federal government under the Tucker Act for breach of contract.
Contract claims against the United States are governed by the Tucker Act, which grants
jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. $ 1a91(a)(1) (2012). As interpreted bythe United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navaio Nat., 556 U.S. 287,289-
90 (2009); United States v. Mitchell,463 U.S. 206,215 (1983); see also Kam-Almaz v.
United States,682 F.3d at'1368; Greenlee Cntv.. Ariz. v. United States,487 F.3d871,
875 (Fed. Cir.), reh'q and reh'q en bancdenied (Fed. Ct.2007), cert. denied,552 U.S.
1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
As indicated by the Tucker Act, privity of contract between a plaintiff and the United
States government is required to bring a cause of action in the United States Court of
12
Federal Claims for express and implied contracts. See Cieneqa Gardens v. United States,
1 94 F.3d 1231 , 1239 (Fed. Cir. '1998) ("Under the Tucker Act, the Court of Federal Claims
has jurisdiction over claims based on 'any express or implied contract with the United
States.'28 U.S.C. $ 1491(a)(1) (1994); We have stated that'[t]o maintain a cause of
action pursuant to the Tucker Act that is based on a contract, the contract must be
between the plaintiff and the government.' Ransom v. United States. 900 F.2d 242,244
(Fed. Cir. 1990).'), cert. denied, 528 U.S. 820 (1999); see also Estes Exp. Lines v. United
States.739 F.3d 689,693 (Fed. Cir.2014); Flexfab. L.L.C. v. United States,424F.3d
1254, 1265 (Fed. Cir. 2005) (The "government consents to be sued only by those with
whom it has privity of contract."); S. Cal. Fed. Sav. & Loan Ass'n v. United States, 422
F.3d 1319, 1328 (Fed. Cir.) ("A plaintiff must be in privity with the United States to have
standing to sue the sovereign on a contract claim," but noting exceptions to this general
rule (citingAnderson v. United States,344 F.3d 1343, 1352 (Fed. Cir.2003)), reh'q and
reh'q en banc denied (Fed. Cir. 2005), cert. denied, 548 U.S. 90a (2006); United States
v. Alqoma Lumber Co., 305 U.S. 415, 421 (1939))); Erickson Air Crane Co. of Wash. v.
United States, 731 F .2d 810, 81 3 (Fed. Cir. 198a) ("The government consents to be sued
only by those with whom it has privity of contract.").
To have privity of contract with the government, and, therefore, invoke the
jurisdiction of the United States Court of Federal Claims for its breach of contract claim,
plaintiff "must show that either an express or implied-in-fact contract underlies [the] claim."
Trauma Serv. Grp. v. United States, 104 F.3d 1321 ,1325 (Fed. Cir. 1997). "Forthere to
be an express contract, the parties must have intended to be bound and must have
expressed their intention in a manner capable of understanding. A definite offer and an
unconditional acceptance must be established." Russell Corp. v. United States,210 Ct.
c|.596,6o6,537F'2d474,481(1976),"u,tdcn'"d@plied.in-
fact contracts are agreements ""'founded upon a meeting of the minds, which, although
not embodied in an express contract, is inferred, as a fact, from conduct of the parties
showing, in the light of the surrounding circumstances, their tacit understanding."',,
Trauma Serv. Grp. v. United States, 104 F.3d at1325 (quoting Hercules. Inc. v. United
States,516 U.S.417, 424 (1996) (quoting Batt. & Ohio R.R. Co. v. United States,261
U.S. 592, 597 (1923))); see also Kam-Almaz v. United States, 682 F.3d at 1368; Bank of
Guam v. United States,578 F.3d 1318, 1329 (Fed. Cir.2009) (citing Trauma Serv. Grp.
v. United States, 104 F.3d at 1326); Bav View, Inc. v. United States ,Z7B F.3d 1259, 1265-
66 (Fed. Cir.2001), reh'o and reh'q en banc denied,285 F.3d 1035 (Fed. Cir.), cert.
denied, 537 U.S. 826 (2002); Westlands Water Dist. v. United States, 109 Fed. Ct. 177,
203 (2013); Peninsula Grp. Capital Corp. v. United States, 93 Fed. C\.720,728 (2010)
(citing Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 597); Russell Corp. v. United
States, 210 Ct. Cl. at 609, 537 F.2dat482. Such an agreementwill not be implied "unless
the meeting of minds was indicated by some intelligible conduct, act or sign." Balt. & Ohio
R.R. Co. v. United States, 261 U.S. at 598; see also Russell Coro. v. United States, 210
Ct. Cl. at 609, 537 F.2d at 482.
Privity of contract with the government generally is required for a party to have
standing to sue the United States in this court for breach of contract. A party lacking privity
with the United States may be able to sue the federal government, however, if it can
demonstrate that it is an intended third-party beneficiary of a contract with the United
IJ
States. See Sioux Honev Ass'n v. Hartford Fire lns. Co.,672 F.3d 1041, 1056 (Fed. Cir.),
cert. denied, 133 S. Ct. 126 (2012) ("A plaintiff lacking privity of contract can nonetheless
sue for damages under that contract if it qualifies as an intended third-party beneficiary.");
Alpine Cntv.. Cal. v. United States,417 F.3d 1366, 1368 (Fed. Cir. 2005) ("ln order to sue
for damages on a contract claim, a plaintiff must have either direct privity or third-party
beneficiary status."); Anderson v. United States , 344 F .3d at 1352 ("Without either direct
privity or third-party beneficiary status, the Paul sons lack standing to sue the government
and cannot therefore recover damages from the United States."); Nelson Const. Co. v.
United States,79 Fed. C|.81,95 (2007); Enterqv Nuclear Indian Poinl 2, LLC v. United
States, 64 Fed. Cl. 515, 523 (2005) ("To have standing to bring a breach of contract claim,
plaintiffs must also be in privity of contract with the government or a third party beneficiary
of a contract with the government."); see also Sullivan v. United States, 625 F.3d 1378,
1380 (Fed. Cir. 2010) ("This Court has recognized limited exceptions to that general rule
when a party standing outside of privity 'stands in the shoes of a party within privity."'
(quoting First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279,1289
(Fed. Cir. 1999), reh'q en banc denied (Fed. Cir. 2000))); O. Ahlboro & Sons, Inc. v. United
States, 74 Fed. Cl. 178, 1 88 (2006) ("The third-party beneficiary exception exists to cover
situations in which the subconhactor 'stands in the shoes of a party with privity."' (quoting
First Hartford Corp. Pension Plan &Trustv. United States, 194 F.3d at 1289)). Butsee
Chancellor Manor v. United States, 331 F.3d 891, 901 (Fed. Cir. 2003) (holding that
"Appellants could establish privity of contract if they are intended third-party beneficiaries
of a contract with the united states . . . ." (citing First Hartford corp. pension plan & Trust
v. United States, 194 F.3d at 1289); Stockton E. Water Dist. v. United States, 70 Fed. Cl.
515, 526 (2006) ("one method of 'estabtish[ing] privity of contract [is] if [ptaintiffs] are
intended third-party beneficiaries of a contract with the United States . . . .," (quoting
chancellor Manorv. United states, 331 F.3d at 901)) (modifications in original), iudoment
gntered, 75 Fed. C|.321, modifuinq in part,76 Fed. Cl.470, reconsideration denied,76
Fed. Cl. 497 (2007), rev'd on otherorounds,5S3 F.3d 1344 (Fed. Cir.2009), partial reh,q
qranted,638 F.3d 781 (Fed. Cir.2011); Klamath lrriqation Dist. v. United States,67 Fed.
cl. 5041 532 ("such privity would exist if the irrigators are properly viewed as third-party
beneficiaries to the district contracts." (citing chancellor Manor v. United states, 331 F.3d
at 901 , and First Hartford corp. Pension Plan & Trust v. United states, 194 F.3d at 1299)),
modifvinq order, 68 Fed. cl. 1 19, denvinq certification of interlocutory apoeal, 6g Fed. cl.
160 (2005).
In order to sue the United States for breach of contract in this court, a corporate
officer or shareholder must show that the government breached a duty owed direcily and
personally to that person independent of those benefits conferred on the corporation with
which the officer or shareholder is affiliated. See First Annapolis Bancorp.. lnc. v. United
States,644 F.3d 1367, 1373 (Fed. Cr.2011) ("[A] shareholder, whetheran individuat or
a holding company, 'generally does not have standing to assert a breach of contract claim
on behalf of the corporation."'(quoting Fed. Deposit Ins. Corp. v. United States,342F.3d
1313, 1319 (Fed. Cir. 2003))); S. Cal. Fed. Sav. & Loan Ass'n v. United States,422F.gd
1319, 1332 (Fed. cir. 2005) ("This court has regularly acknowledged the tegal distinction
between a corporation and its shareholders and rejected claims by shareholders to assert
a breach of contract claim on behalf of the corporation." (citing First Hartford corp.
Pension Plan & Trust v. United States, 194 F.3d at 1289)), cert. denied sub nom. Martin
14
v. United States, 548 U.S. 90a (2006); Castle v. United States, 301 F.3d 1 328, 1339 (Fed.
Cir.) ("Castle and Harlan signed the [Regulatory Capital Maintenance Agreement
(RCMA)I in their individual capacities. They are direct parties to the RCMA. We therefore
hold that Castle and Harlan have standing to allege breach of contract based upon the
RCMA and the documents it allegedly incorporates . . . ."), reh'q and reh'q en banc denied
(Fed. Cir. 2002), cerl. denied, 539 U.S. 925 (2003); Glass v. United States, 258 F.3d
1349, 1 354 (Fed. Cir. 2001) ("ln order to prove third party beneficiary status, a party must
demonstrate that the contract not only reflects the express or implied intention to benefit
the party, but that it reflects an intention to benefit the party directly."); Affourtit v. United
States, 79 Fed. Cl. at 779 ("ln this case, lRl is the party that entered into a contract with
the Government . . . Therefore, Thomas D. Affourtit is not in privity with the Government,
and the court does not have jurisdiction to adjudicate the allegations set forth in the
Complaint."); Smith v. United States,58 Fed. CI.374,382 (2003) ("[T]he Smith ptaintiffs
will only be able to establish standing and maintain their claim against the government if
they demonstrate the government breached an express or implied duty owed to the
Smiths personally and independently of their status as shareholders of NCF."); Walker v.
united states, 231 ct. c1.761,763 (1982) ("officers and stockhotders (inctuding sote
owners) of a corporation that contracts with the United States are not considered the real
party in interest and have no standing to sue on the corporation's behalf.") (citinq Alqonac
Mfq. Co. v. United States, 192 Ct. C|.649, 662 (1970)); RoboWash, Inc. v. United States,
223 Ct. Cl. 693, 697 (1980) ("il1n order for a stockhotder to sue for direct injuries, the
wrong must amount to a breach of duty owed to the stockholder personally, and
independently of his or her status as a stockholder."); Alqonac Mfq. Co. v. United States,
192 ct. cl. at 662 (holding that a sole shareholder was not a party to his corporation's
contract with the United states and thus lacked privity to sue for alleged breach of
contract).
The September 23,2010 VA contract, on which Mr. Woodruffs breach of contract
claims in this court ate based, lists the
'DUCKE GROUPE" as
the
'CONTRACTOR/OFFEROR" and is signed by Donald A. Woodruff, in his capacity as
"MEMBER Ducke Groupe, LLC." (capitalization in original). Nowhere in the contract is Mr.
woodruffs name listed other than in his capacity as a DuckeGroupe member or director,
nor does VA express in the contract or imply an intent to confer any sort of benefit on
Donald A. woodruff as an individual, which suggests that the contract only established
obligations between the vA and DuckeGroupe, not with respect to Donald A. woodruff
as an individual. Therefore, Mr. woodruff lacks standing as either a person in privity with
the government or a third-party beneficiary of the contract. As such he may not biing a
breach of contract claim against the United States through the VA in this court.
In his response to defendant's motion to dismiss, Mr. Woodruff appears to argue
that his privity with the government, and, therefore, his standing to allege a breach of
contract in this court, arises from "the fact that the Plaintiff negotiated the terms of the
contract with the Defendant's contracting officer," and that "his ability to act in this
manner constitutes the 'doctrine of apparent authoity."' (emphasis in original). As
discussed above, however, this court has held that the position of a corporate officer or
shareholder alone does not endow them with standing to sue for breach of contract, and
that "[t]his rule includes officers who conducted contract negotiations on behalf of a
15
corporation." Pacetti v. United States, 50 Fed. Cl. 239, 2 5 QA01); see also First
Annapolis Bancorp., Inc. v. United States , 644 F.3d at 1373 ("[S]hareholders are not
allowed 'to rely on their involvement in the negotiation process or their role in funding a
transaction to alter their chosen legal status."' (quoting S. Cal. Fed. Sav. & Loan Ass'n v.
United States, 422 F .3d at 1332)). Regardless of Mr. Woodruffs authority to execute the
contract as a "MEMBER," whatever position in the corporate entity he might have held at
DuckeGroupe, the fact remains that he was neither a named party or named as an
intended third-party beneficiary of the agreement, and, therefore, plaintiff lacks standing
to sue the United States for breach of contract.
Election Doctrine
In addition to the fact that plaintiff is neither in privity with the United States, nor an
intended third-party beneficiary of DuckeGroupe's contract with the VA, and, therefore,
unable to pursue this suit in this court, DuckeGroupe's decision initially to appeal the
contracting officer's final decision, dated January 9,2013, to the CBCA foreclosed
Mr. woodruffs or DuckeGroupe's ability to bring a suit based on the same contract and
claim in this court according to the election dochine included in the cDA. see 41 U.s.c.
s 7104. The cDA established an exclusive dispute-resolution mechanEir for -any
express or implied contract . . . made by an executive agency" for four types of contracts,
including those made for "the procurement of services." 41 u.s.c. g7102(a)(2) (2012).
The cDA provides that a contractor making a claim against the federal government based
on a contract with the United States first shall submit its claim, in writing, to the Contracting
officer responsible for that contract. see 41 U.s.c. g 7103(a) (2012j.lf the conhacting
officer renders a final decision adverse to a contractor's claim, the contractor may appear
that decision to the relevant agency Board within ninety days of receiving it. see 41 u.s.c.
S 7104(a). Alternatively, "in lieu of appealing the decision of a contracting officer . . . to an
agency board, the aggrieved contractor may bring an action direcfly on the claim in the
United states court of Federat claims," 41 u.s.c. S 7104(b)(1), so iong as that action is
brought within twelve months of the contractor's receipt of the advirse contracting
Officer's final decision. See 41 U.S.C. S 7104 (bX3).
while the cDA offers contractors a choice of forums in which to appeal an aoverse
contracting officer's final decision, once a contractor has decided between appealing to
the relevant Board of contract Appeals or bringing a suit in this court, the conhactor is
precluded from bringing the same claim in the alternative forum, so long as the plaintiffs
choice was informed, knowing, and voluntary and the forum chosen has jurisdiction. see
Bonneville Assocs. v. United states, 43 F.3d 649, 6s5 (Fed. cir. 1994) (citing Mark smith
9onstr..co. v. united states, 10 ct. ct. s40, s44 (1986)). According to the 0nited Srates-
Court of Appeals for the Federal Circuit:
It is well established that, pursuant to the Contract Disputes Act, a
co-ntractor wishing to contest an adverse final decision by the contracting
officer either may appeal the contracting officer's adverse decision to the
appropriate board of contract appeals or may contest the contracting
officer's decision directly to the claims court [court of Federal claims]. This
16
choice has given rise to a body of jurisprudence known as the "Election
Doctrine."
Once a contractor makes a binding election under the Election Doctrine to
appeal the contracting officer's adverse decision to the appropriate board
of contract appeals, that election must stand and the contractor can no
longer pursue its claim in the alternate forum. Under the Election Doctrine,
the binding election of forums is an "either-or" alternative, and, as such,
does not provide a contractor with dual avenues for contesting a contracting
officer's diverse decision.
Nat'l Neiqhbors. |ffi, 839 F.2d 1s39, 1s41-42 (Fed. cir. 1988) (citing
fqttleM_hitg Constructors. Inc. v. United States,22ACt. C|.354,361,656 F.2d644,64i,
649 (1981)) (footnote omitted). This rule was reiterated in Texas Health choice. L.c. v.
Office of Personnel Manaoement, in which the Federal Circuit state*
The cDA provides arternative forums for challenging a [contracting ofiicer's]
final decision: a contractor may fire an appeal with fhe lppropriat6 board of
contract appeats, 41 U.S.C. S 606 (1999), or appeal direcfly to the Court of
Federal Claims, 41 U.S.C. g 609(a)(1) (Supp. V 1993). Courts have
consistently interpreted the cDA as providing the contractor with an either-
or choice of forum.
Texas Health choice. L.c. y. effige of pers. Mqmt., 400 F.3d 895, 899 (Fed. cir.), reh,o
gldtrhg en banc denied (Fed. cir. 2005); see atso patafox st. Assocs., L.p. v. UnitEl
States'No.13_247c,2015WL3777148,at-6(Fed.c@ttotne
election doctrine, once a contractor chooses the forum in which to lodge its appeat, the
contractor's choice is binding, and the contractor is no longer able to puisue its ippeal in
the alternate forum." (citing Nat'l.Neighbors. Inc. v. united states, 939 F.2d atis+z));
Eow_eF Lnv._Co v. United States, 104 Fed. Cl.246154 e.Cl1), atf d, 695 F.3d 13S0 (Fed.
cn.2012); Paradiom Learnino. Inc. v. United states, 93 Fed.'cl. 46s, 474 (2010) ("ihus,
if a contractor makes an informed, knowing, and voluntary decision to puriue its appear
in another forum with jurisdiction over the appeal, the court of Federal claims is required
to.dismiss a subsequently filed appeal concerning the same claim for lack of jurisdiction."
(citing Bgnteville Assocs. v., Un"ited states, 43 F.3d at 65s)); Am. Telecom corp. v. united
States,59Fed.C|.467,471(2004)(..The.in|ieuoftangua@
indicates that the contractor has a choice of forums but does not allow the contiactor to
pursue its claims before both forums." (citing TutfleAy'y'hite constructors. Inc. v. United
states, 228 ct. ct. at 361, 656 F.2d at 649)). For a comptainanfsihoiie oifoffi to bar
subject matter jurisdiction in the unselected forum, the reviewing forum must have had
tylsoi9Jio1 over the original claims. gee Bonneville Assocs., Ltd. p'shp. v. Banam, .165
F.3d 1360, 1362 (Fed. Cir.) (citing Bonneviile Assocs.@s3),
cert. denied, 528 U.S. 809 (1999).
17
The Contracting Officer's final decision, dated January 9,2013, informed Mr.
Woodruff he could choose to appeal the decision to the CBCA within ninety days or
"[i]nstead of appealing to the CBCA, you may bring an action directly in the United States
Court of Federal Claims . . . within 12 months of the date you receive this decision." This
demonstrates that the subsequent decision by DuckeGroupe to appeal to the CBCA was
informed, knowing, and voluntary. See Bonneville Assocs. v. United States, 43 F.3d at
655 (citing Bonneville Assocs. v. United States, 30 Fed. Cl. 85, 90 (1993)); Palafox St.
Assocs.. L.P. v. United States, 114 Fed. Cl.773,788 (2014) (hotding that the CO's
communication to the plaintiff of his options for appeal under the CDA supported a finding
that plaintiff's subsequent decision to appeal to the CBCA was informed, knowing, and
voluntary). DuckGroupe filed a timely notice of intent to appeal the Contracting Officer,s
final decision on February 2, 2013. The cBCA appropriately exercised its jurisdiction over
the appeal and issued a decision on June 24,2013 denying DuckeGroupe's claim for
reimbursement in its entirety.
Separate lawsuits can only be maintained at the appropriate Board of Contract
Appeals and the court of Federal claims so long as the suits are based on different
claims. See Phillips/May Corp. v. United States , 524 F.3d 't264, 1272 (Fed. Cir. 2008)
("The presumption that claims arising out of the same contract constitute the same claim
for res judicata purposes may be overcome by showing that the claims are unrelated.");
Placewav Const. Corp. v. United States, g20 F.2d 903, 907 (Fed. Cir. 1990) (,To
determine whether two or more separate claims, or only a fragmented single claim, exists,
the court must assess whether or not the claims are based on a common or related set
of operative facts."); Affiliated Const. Gro. v. United States. 1 ,1S Fed. Cl. 607, 612 (20'l\;
BRC Lease Co. v. United States, 93 Fed. Ct. 67,72 (2010) (hotding that if separare
contracting officer decisions were based on substantially the same fbcts, the election
doctrine barred their appeal to separate forums (citing Glenn v. United states, g5g F.2d
1277 , 1280 (Fed. cir. 1988))). In the present case, it is evident that the claims advanced
by Mr. Woodruff in this court are substantially identical to those included in the appeal to
lhe CBCA, namely that the VA's underutilization of the Haven House facility during the
2011-12 option year allegedly led DuckeGroupe to operate at a deficit, for which Mr.
woodruff alleges he or the company should be entifled to reimbursement in the amount
of approximately 947,000.00.8 Indeed, the complaint filed by Mr. Woodruff and
DuckGroupe in the Northern District of Ohio explicitly stated in the first cause of action
that review of the cBCA's adverse decision was sought. As the CBCA has already
considered and denied DuckeGroupe's appeal from the contracting office/s final
decision, this court is precluded from reconsidering the matter, and Mr. woodruffs claim
in this court must be dismissed. Plaintiffs apparent argument that the District court's
decision to transfer his breach-of-contract claim to this court renders the election doctrine
inapplicable to his case is unavailing. Although this court indeed has exclusive jurisdiction
in the federal court system over monetary claims against the united states in excess of
$10,000.00 under the Tucker Act, 28 u.s.c. S 1491, as also identified by the District
I The court notes that although the CBCA's decision states that the claim was for
$47,400.00, the complaint filed in the Northern District of Ohio only sought $47,000.00.
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Court, the election doctrine precludes this court from reviewing a contract claim based on
Contract No. VA250-P-0592 for the $47,000.00 Mr. Woodruff seeks.
Timeliness under the CDA Statute of Limitations
Furthermore, even absent plaintiffs lack of privity of contract and the knowing
election to proceed with an appeal of the Contracting Officer's final decision in the CBCA,
the complaint filed jointly by DuckeGroupe and Mr. Woodruff in the Northern District of
Ohio was filed more than twelve months after receipt of the Contracting Officer's final
decision, and was, therefore, untimely. The CDA provides that a contractor seeking
review of a Contracting Officer's final decision in the Court of Federal Claims must file suit
in the court "within 12 months from the date of receipt of a contracting officer's
decision." 41 U.S.C. S 7104(b)(3). While it is not clear exactly on which date Mr. Woodruff
received a copy of Contracting Officer Glen Johnson's final decision, dated January g,
2013, it is apparent that he received the document on or before February 2,2013,the
date he filed a Notice of Intent to Appeal with the CBCA. Therefore, to satisfy the statute
of limitations provided by41 U.S.C. S 7104(bX3), Mr. Woodruff would have had to file a
federal court complaint, alternative to filing at the CBCA, no later than February 1,2014.
The complaint submitted by DuckeGroupe and Mr. Woodruff to the United States District
Court was filed on April 18, 2014, and, therefore, even after transfer, must be considered
untimely.
In defending the untimeliness of his complaint under the CDA, plaintiff cites to two
decisions of New York state courts, Riddick v. Citv of New York, 4 A.D.3d 242,245 (N.y.
App. Div.2004), and Brown v. Noble. |nc.,920 N.Y.S.2d 239 (N.y. Super. Ct.2010),
which, Mr. Woodruff claims, stand for the proposition that untimely pleadings do not
automatically warrant dismissal if the filings are meritorious and do not cause prejudice
to the opposing party Neither of these state-court cases, however, assist plaintiff's
position. lt is well established that the decisions of state courts have no authority over
federal courts deciding issues of federal law. See, 4, Cieneqa Gardens. Inc. v. United
States, 33 Fed. Cl. 196,216 (1995) ("Precedents of the NewYork Court of Appeals, of
course, are not binding on the Court of Federal Claims."), vacated on other qrounds, 194
F.3d 1231 (Fed. cir. 1998). Additionally, the cDA's twelve month statute of limitations is
a jurisdictional rule, and as a result, may not be extended or waived for equitable
purposes. See Hart v. United States, 910 F.2d 815, 818-19 (Fed. Cir. 1990) ("The statute
of limitations is jurisdictional in nature and, as an express limitation on the waiver of
sovereign immunity, may not be waived. Courts are not free to engraft exceptions on the
statute of limitations."); Renda Marine. Inc. v. United States, 71 Fed. Cl.7A2,789 (2006)
("Absent congressional action, the court cannot read into the CDA 'exceptions' to the
specific statutory time limit for bringing actions under the cDA in this court." (citing united
States v. Kasler Elec. Co., 123 F.3d 341 ,346 (6th Cir.1997))); White Buffato Const.. lnc.
v. United States, 28 Fed. Cl. 145, 147 (1992) ("Because Congress legislatively mandated
the twelve-month time period, it cannot be extended out of sympathy for particular
litigants, even if this effects a seemingly harsh result."); Jones v. United States, g Cl. Ct.
292,295 (1985) ("[T]he statute of limitations is jurisdictional and the court cannot waive it
ongroundsof policyorequity."),affd,801 F.2d1334 (Fed.Cir. 1986),cert.denied,481
U.S. 1013 (1987). This court has no authority to extend the CDA's twelve month statute
19
of limitations for equitable or other reasons, meaning plaintiff's complaint is time-barred
and must be dismissed for want of subject matter jurisdiction.
coNcLusroN
For all of the reasons discussed above, defendant's motion to dismiss for lack of
subject matter jurisdiction is hereby GRANTED. Plaintiffs complaint is DISMISSED. The
Clerk of the Court shall enter JUDGMENT consistent with this Opinion.
IT IS SO ORDERED
ARIAN BLANK HORN
Judge
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