Csx Transportation, Inc. v. United States

In the United States Court of Federal Claims

No. 14-1170C

(Filed: September 18, 2015)

)

CSX TRANSPORTATION, INC., )

) Subject Matter Jurisdiction;

Plaintiff, ) Breach of Contract; Contract

) Disputes Act; Procurement Contract;

v. ) Bailment Agreement; Certified Claim;

) Defective Certification

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

)

)

Christopher Jordan Merrick, Keenan Cohen & Merrick, P.C., Jenkintown, PA, for

plaintiff.

Kara Marie Westercamp, Trial Attorney, with whom were Benjamin C. Mizer, Pricipal

Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Steven J.

Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant.

OPINION AND ORDER

This breach of contract case is before the Court on the government’s motion to

dismiss pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”).

The government argues that the Court lacks subject matter jurisdiction because the

plaintiff, CSX Transportation, Inc. (“CSX”), did not file a certified claim with the

contracting officer, as required by the Contract Disputes Act (“CDA”), 41 U.S.C. § 7104

(2012). As explained below, the Court agrees, and therefore CSX’s complaint must be

DISMISSED.

BACKGROUND

CSX, an interstate rail carrier, owns a railway that passes near Fort Stewart,

Georgia, the location of the United States Garrison Command (“the Installation”). A spur

line connects the main railway to the Installation. See Def’s Mot. to Dismiss Ex. 1 at 9,

CSX Transp., Inc. v. United States, No. 4:13-cv-208 (S.D. Ga. Dec. 20, 2013), ECF No.

12 (diagramming the track intersection). The spur line runs parallel to the main railway

for a short distance before veering off towards the Installation. Id. This short stretch of

parallel track is called the “sidetrack.” Id. at 1.

On January 23, 2006, CSX, the Installation, and the Army Corps of Engineers

(“COE”) entered into a contract (the “Sidetrack Agreement”) concerning the use of the

sidetrack. See Compl. Ex. A. Under the contract, the Installation and the COE leased a

portion of the right-of-way along the sidetrack from CSX. See id. ¶¶ 6.1–6.5. The

parties also agreed that “when [a] railcar has been placed on [the sidetrack] . . . .

possession of the railcar and its contents shall be transferred to [the] Installation.” Id.

¶ 7.3. The Installation would then be “responsible for all railcars and their contents while

in Installation’s possession” and would “assume[] all responsibility for payment of all

damage to any railcar and its contents that may occur during that time, even if caused by

third parties.” Id. ¶ 7.4.

On or about October 8, 2010, CSX delivered forty-four railcars to the Installation

via the sidetrack.1 Am. Compl. ¶ 9. The railcars CSX provided to the Installation were

leased from TTX Company (“TTX”) and included tie-down and other equipment

necessary for their use and operation. Am. Compl. ¶ 11; see Def.’s Mot. to Dismiss

(“Def.’s Mot.”) App. at 15. The Army thereafter moved the railcars onto the base and

unloaded them within a fenced-in area. Am. Compl. ¶ 14. After unloading the railcars,

the Army moved them to unfenced rail sidings located outside the base: twenty-two were

moved to the “Shaw Road” siding and eleven to the “Beer Joint” siding. Id. ¶¶ 14–16.

On April 14, 2011, CSX discovered that third parties had vandalized and stolen

tie-down chains and related equipment from the thirty-three railcars. Def’s Mot. at 2. On

September 1, 2011, the owner and lessor of the railcars, TTX, submitted an

administrative claim to the Army in the amount of $262,042.16 for property damage to

the railcars. Def.’s Mot. App. at 17, 21–23.

The United States Army Claims Service (“USARCS”) denied TTX’s claim on

December 13, 2011. Id. at 44–48.2 TTX then billed CSX $267,238.14 for repairs and/or

replacement for the thirty-three railcars and eleven other railcars that sustained similar

damage. Id. at 17–18.

1

The contract governing the ordering of these railcars is not at issue in this case.

2

TTX had asserted claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

2671–80, and the Military Claims Act (“MCA”), 10 U.S.C. § 2733, as implemented by

Chapter 3, Army Regulation (“AR”) 27-20. Def.’s Mot. App. at 44. The Army’s basis

for denying TTX’s FTCA claim was, first, that the individuals who stole TTX’s tie-down

equipment were not federal employees; and second, that, assuming TTX was an invitee,

“under Georgia law, there is no duty to protect invitees from the criminal acts of third

parties.” Id. The Army’s basis for denying TTX’s MCA claim was that TTX’s “cars

were not turned over to the Army for safekeeping and, thus, no bailment arose.” Id.

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Thereafter, on September 26, 2012, CSX executed a Standard Form 95, which is a

government-wide form approved by the Office of Management and Budget for use in

filing administrative claims under the Federal Tort Claims Act. Id. at 15–20; see 28

C.F.R. § 14.2. In the form and an attachment submitted along with the form, CSX sought

compensation from the Army in the amount of $267,238.14 “for injury to and loss of

property due to the negligence or wrongful act or omission of a civilian officer or

employee of . . . [t]he Army.” Def.’s Mot. App. at 15–20. In addition to citing the

Federal Tort Claims Act, CSX cited the Military Claims Act, 10 U.S.C. § 2733, “and

other applicable law” as the basis for its claim. It further stated in the claim that “[s]tate

law imposes duties and obligations on the Army as the bailee for these railcars.” Def.’s

Mot. App. at 18. Finally, CSX quoted paragraph 7.4 of the Sidetrack Agreement and

asserted that, “[a]pplying the standard of care contained in the agreement between the

parties the government should pay this claim to CSX.” Id. at 19.

CSX sent its claim via certified mail to various offices within the Army, including

USARCS, the Army Garrison Command at Fort Stewart and Hunter Army Airfield, the

Army Corps of Engineers, and the Army Installation Management Command in Fort Sam

Houston, Texas. The only Army agency that responded, however, was USARCS. In a

letter dated March 13, 2013, and signed by the chief of the Tort Claims Division,

USARCS denied the claim. Id. at 49–50. The letter explained that because CSX was a

subrogee of TTX, and “[as] subrogation rights arise from the substitution of one person in

place of another, [CSX’s] rights to recover are limited to the rights that TTX would have

to recover from the original claim.” Id. at 49. The letter further explained:

TTX had six months from the mailing date of the [letter denying its

claim] to file suit under the FTCA, and 60 days from receipt of that

same letter to file an appeal under the MCA. TTX’s right to recover

expired when both of those deadlines passed without action taken

by TTX. Accordingly, CSX’s subrogation rights have also expired.

Id.

After a failed appeal of the administrative claim, CSX filed suit in the United

States District Court for the Southern District of Georgia, alleging both tort and contract

claims. Am. Compl. at 1 n.1, CSX Transp., Inc. v. United States, No. 4:13-cv-208 (S.D.

Ga. Dec. 20, 2013), ECF No. 14. The government moved to dismiss that action for lack

of subject matter jurisdiction, arguing, among other things, that the dispute was one of

contract, rather than tort, and thus was under the exclusive jurisdiction of the Court of

Federal Claims. Transfer Order at 3, ECF No. 1-1. The district court agreed and

transferred CSX’s case to this Court. Id. at 12–13.

CSX filed an amended complaint in this Court on January 5, 2015, alleging

breach of the Sidetrack Agreement and requesting damages in the amount of

$267,238.14, plus interest. Am. Compl. at 2, 4, ECF No. 4. Thereafter, the government

filed the motion to dismiss that is currently before the Court.

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DISCUSSION

I. Legal Standards

A. Motion to Dismiss Under RCFC 12(b)(1)

Whether this Court has jurisdiction to decide a case is a threshold matter, and, if

no jurisdiction exists, the Court must order dismissal without proceeding further. See

PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007) (citing Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83 (1998)). In deciding a motion to dismiss for lack

of subject matter jurisdiction, the court accepts as true all undisputed facts in the

plaintiff’s complaint and draws all reasonable inferences in favor of the plaintiff. Trusted

Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). If subject matter

jurisdiction is challenged, however, the plaintiff cannot rely merely on allegations in the

complaint, but must instead bring forth relevant, competent proof to establish jurisdiction.

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998). The

party invoking a court’s jurisdiction bears the burden of establishing it, and must

ultimately do so by a preponderance of the evidence. Id.; Rocovich v. United States, 933

F.2d 991, 993 (Fed. Cir. 1991).

B. Tucker Act Jurisdiction

Pursuant to the Tucker Act, the United States Court of Federal Claims may

“render judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive department, or

upon any express or implied contract with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a) (2012).

Subsection (a)(2) of the Tucker Act further grants the Court of Federal Claims

“jurisdiction to render judgment upon any claim by or against, or dispute with, a

contractor arising under section 7104(b)(1) of title 41”—that is, the CDA—“including a

dispute concerning termination of a contract, rights in tangible or intangible property,

compliance with cost accounting standards, and other nonmonetary disputes on which a

decision of the contracting officer has been issued under section 6 of that Act.”

C. The Contract Disputes Act

The CDA covers any claims based upon “any express or implied contract . . .

made by an executive agency for—(1) the procurement of property, other than real

property in being; (2) the procurement of services; (3) the procurement of construction,

alteration, repair, or maintenance of real property; or (4) the disposal of personal

property.” 41 U.S.C. § 7102(a). Therefore, “the CDA does not apply to the provision of

services by the government, but only to the procurement of such services.” Fla. Power &

Light Co. v. United States, 307 F.3d 1364, 1371 (Fed. Cir. 2002). Under the CDA,

“procurement” means “the acquisition by purchase, lease or barter, of property or

services for the direct benefit or use of the Federal Government . . . .” New Era Constr.

v. United States, 890 F.2d 1152, 1157 (Fed. Cir. 1989) (emphasis omitted). Moreover,

the CDA applies even if procurement is only one aspect of a multi-purpose contract. See

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Bonneville Assocs. v. United States, 43 F.3d 649, 654–55 (Fed. Cir. 1994) (holding that

it would “be incongruous for the [B]oard [of Contract Appeals] to have jurisdiction to

construe one part of the contract, but not the other”); Forman v. United States, 767 F.2d

875, 879 (Fed. Cir. 1985).

The CDA sets forth its own jurisdictional requirements. See M. Maropakis

Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010). It states that a

contractor may bring an action de novo in federal court “within 12 months from the date

of receipt of a contracting officer’s decision.” 41 U.S.C. § 7104(b). Thus, the Federal

Circuit has held that, for the Court of Federal Claims to possess jurisdiction, the

contractor must have first submitted a valid claim to its contracting officer and received

the contracting officer’s final decision on that claim. M. Maropakis Carpentry, Inc., 609

F.3d at 1327.

The definition of “claim” for purposes of the CDA derives from the Federal

Acquisition Regulations (“FAR”), which implement the CDA. See id. FAR 2.101

provides, in pertinent part that “claim” means “a written demand or written assertion by

one of the contracting parties seeking, as a matter of right, the payment of money in a

sum certain, the adjustment or interpretation of contract terms, or other relief arising

under or relating to the contract.” Id., see also FAR 52.233-1 (setting forth, in a standard

contract clause, the same definition of “claim” as in FAR 2.101). The Federal Circuit,

interpreting this provision, has held that a valid CDA claim consists of three components:

“(1) a written demand, (2) seeking, as a matter of right, (3) the payment of money in a

sum certain.” Northrop Grumman Computing Sys., Inc. v. United States, 709 F.3d 1107,

1112 (Fed. Cir. 2013) (citing Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575–76 (Fed.

Cir. 1995)). The Federal Circuit has further explained that “[w]hile a valid claim under

the CDA must contain ‘a clear and unequivocal statement that gives the contracting

officer adequate notice of the basis and amount of the claim,’ the claim need not take any

particular form or use any particular wording.” Id. (quoting Contract Cleaning Maint.,

Inc. v. United States, 811 F.2d 586, 592 (Fed.Cir.1987)). “All that is required,” the

Federal Circuit has observed, “is that the contractor submit in writing to the contracting

officer a clear and unequivocal statement that gives the contracting officer adequate

notice of the basis and amount of the claim.” Id. (quoting Contract Cleaning Maint., Inc.,

811 F.2d at 592).

For claims seeking more than $100,000, FAR 2.101 additionally incorporates

within the definition of “claim” the CDA’s certification requirement, located at 41 U.S.C.

§ 7103(b)(1). That requirement provides as follows:

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For claims of more than $100,000 made by a contractor, the

contractor shall certify that--

(A) the claim is made in good faith;

(B) the supporting data are accurate and complete to the best of

the contractor’s knowledge and belief;

(C) the amount requested accurately reflects the contract

adjustment for which the contractor believes the Federal

Government is liable; and

(D) the certifier is authorized to certify the claim on behalf of the

contractor.

Id.; see also FAR 33.207(c) (providing specific certification language, which includes the

language of § 7103(b)(1) nearly verbatim).

Section 7103(b)(3) clarifies, however, that contractors have an opportunity to

correct a certification that does not strictly adhere to the requirements of § 7103(b)(1).

Specifically, it provides that:

A defect in the certification of a claim does not deprive a court or an

agency board of jurisdiction over the claim. Prior to the entry of a

final judgment by a court or a decision by an agency board, the court

or agency board shall require a defective certification to be

corrected.

41 U.S.C. § 7103(b)(3). Thus, “[a]lthough certification of a claim is a jurisdictional

prerequisite to suing in this court under the CDA, if a contractor attempts to certify a

claim, but the certification is defective, the court retains jurisdiction over the claim, but

the contractor must correct the defect.” Sam Gray Enters., Inc. v. United States, 32 Fed.

Cl. 526, 529 (1995) (citing Hamza v. United States, 31 Fed. Cl. 315, 324 (1994)); see

also M. Maropakis Carpentry, Inc., 609 F.3d at 1329 (“[W]hile technical compliance with

certification is not a jurisdictional prerequisite to litigation of a contractor’s claim under

the CDA, it is a requirement to the maintenance of such an action.”).

II. Application of Standards

A. CSX’s claims fall under the CDA

As noted above, for purposes of the CDA, a “procurement” means “the

acquisition by purchase, lease or barter, of property or services for the direct benefit or

use of the Federal Government . . . .” New Era Constr., 890 F.2d at 1157. The Sidetrack

Agreement clearly falls within this category. Thus, as Section 1.1 provides, “[t]he

purpose of this Agreement is to detail the provisions of the maintenance and use of

Private Sidetrack Nos. A and B for the tender and receipt of rail freight traffic for the

account of Installation, and the granting of a lease over real property owned by Railroad

to COE.” Am Compl. Ex. A at 1 (emphasis added). Moreover, it provides:

The parties understand that the Installation uses the Sidetrack as a

critical link in a world-wide power projection platform to deploy and

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redeploy tanks, weapons and munitions required by a heavy infantry

division garrisoned on Installation to locations around the world for

wars, armed conflicts less than war and other national military

contingency operations as directed by the United States President,

United States Congress and the National Command Authority.

Id.

In short, the Sidetrack Agreement involves the lease (acquisition) of property

(side tracks) for the direct benefit and use of the government (to transport tanks, weapons,

and munitions). It therefore constitutes a contract for “procurement” within the meaning

of the CDA. CSX argues nonetheless that “[d]ue to the Georgia Court’s ruling, it is now

the law of the case that CSX’s cause of action is a breach of bailment claim under the

Tucker Act” and that “breach of bailment claims are not subject to the CDA.” Pl.’s

Mem. in Opp’n to Def’s Mot. to Dismiss at 7, ECF No. 8 (“Pl.’s Mem.”). These

arguments lack merit for a number of reasons.

First, irrespective of the law-of-the-case doctrine, “the Court of Federal Claims is

obligated to determine its own jurisdiction, even when it receives a matter by transfer

from a federal district court.” Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101,

107 (2012) (holding that, despite the transferor court’s characterization of plaintiff’s

claims as contract claims against the United States within the exclusive jurisdiction of the

Court of Federal Claims, plaintiff’s allegations that a contract existed were not sufficient

to establish subject matter jurisdiction). Second, the district court did not make any

determinations regarding CSX’s contract claim, other than a determination that it lacked

jurisdiction over that claim. It did not characterize the contract as a “bailment

agreement,” much less determine that the Tucker Act, but not the Contract Disputes Act,

would serve as the basis for the CFC’s jurisdiction over the transferred contract claim.

To the contrary, the district court declined to address the government’s argument that

CSX had not “exhausted its administrative remedies under the Contract Disputes Act,”

expressly leaving resolution of that issue to this Court. See Order at 1, 12, CSX Transp.,

Inc. v. United States, No. 4:13-cv-208 (S.D. Ga. Sept. 30. 2014), ECF No. 14.

In any event, as described above, the deciding factor in determining whether a

contract for the procurement of property or services is subject to the CDA is whether it

was “for the direct benefit or use of the Federal Government.” Thus, it is beside the point

that the CDA does not cover bailment agreements that are donative in nature (because

they do not involve procurements); bailments related to the transfer of property pursuant

to a lease (like any bailments created by the Sidetrack Agreement) are procurements and

therefore are subject to the CDA. See Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378–79

(Fed. Cir. 2006) (holding that a bailment agreement covering a prototype lent to the

Army for evaluation did not involve “procurement,” but that the Army’s subsequent

decision to purchase the prototype did); cf. Leonardo v. United States, 60 Fed. Cl. 126,

129 (2004) (government agreement to “solicit additional venues in Belgium and

elsewhere in Europe in which to exhibit plaintiff’s artwork,” to “store and keep safe all of

[plaintiff’s] artwork . . . at the American Cultural Center at all times when [her] artwork

was not being exhibited at additional venues,” and “to return her artwork to her in its

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original condition” was a ‘bailment agreement” and not a procurement subject to the

CDA); Telenor Satellite Servs., Inc. v. United States, 71 Fed. Cl. 114, 119 (2006)

(bailment agreement through which plaintiff provided computer terminals free of charge

for use by U.S. Agency for International Development in pilot project was not a

procurement and therefore not covered by the CDA).

In short, there is no merit to CSX’s claim that its dispute with the government

regarding the breach of the Sidetrack Agreement is not subject to the CDA because it

involves a “bailment agreement.” The Court now turns to the question of whether CSX

filed a valid claim with the contracting officer, as is necessary for this Court to exercise

jurisdiction under the CDA.

B. CSX’s administrative claim did not constitute a valid claim within

the meaning of the CDA

CSX argues, in the alternative, that “this Court would have jurisdiction over

CSX’s claims even if the Private Sidetrack and Lease Agreement were a procurement

contract subject to the requirements of the CDA.” Pl.’s Mem. at 10. CSX emphasizes

that, in addition to alleging tort causes of action, its administrative claim “specifically

identifie[d] the governing contract between the parties” and included the Sidetrack

Agreement as an attachment. Id. CSX also notes that its administrative claim

“request[ed] payment of a sum certain and request[ed] a final decision from the Army.”

Id. Further, CSX argues that its administrative claim satisfied the CDA’s certification

requirement because “a certified public accountant employed by CSX[] ‘certif[ied]’ the

substance of the claim.” Id. at 12.

CSX’s submission to the Army, although framed as a claim arising under the

FTCA and MCA, meets the basic requirements for a claim within the meaning of the

CDA as set forth in FAR 2.101. That is, it was “(1) a written demand, (2) seeking, as a

matter of right, (3) the payment of money in [the] sum certain” of $267,238.14. See

Northrop Grumman Computing Sys., 709 F.3d at 1112. Further, its demand for that sum

was “relat[ed] to the contract” in that it cited back to the provision of the Sidetrack

Agreement (subparagraph 7.4 at Am. Compl. Ex. A) that holds the Installation

responsible “for payment of all damage to any railcar and its contents . . . even if caused

by third parties.” See id. CSX also included a copy of the Sidetrack Agreement with the

claim. As such, the submission likely provided “adequate notice of the basis and amount

of the claim.” See id.; see also Colon v. United States, 35 Fed. Cl. 337, 341–42 (1996)

(“It is theoretically possible that an administrative tort claim could have a breakdown of

claimed damages and that some of these damages could in reality be contract-based. A

contracting officer may then be in a position to fairly evaluate the claim using

information provided in the administrative tort claim.”).

But notwithstanding that CSX’s claim satisfied these elemental requirements, it

clearly does not meet the certification requirement for claims exceeding $100,000 set

forth in § 7103(b) of the CDA and incorporated into FAR 2.101. As described above, a

certification must affirmatively state that the claim is made in good faith; that the

supporting data are accurate and complete to the best of the contractor’s knowledge and

8

belief; that the amount requested accurately reflects the contract adjustment for which the

contractor believes the Federal Government is liable; and that the certifier is authorized to

certify the claim on behalf of the contractor. 42 U.S.C. § 7103(b)(1). These

requirements are more than just a formality. Indeed, the Federal Circuit has held that

“the statutory mandate that all claims over [a specified amount] must be certified is one

of the most significant provisions of the CDA.” Fidelity Const. Co., 700 F.2d 1379, 1384

(Fed. Cir. 1983); see also Lehman v. United States, 673 F.2d 352, 354 (Ct. Cl. 1982)

(observing that Congress ascribed importance to the certification requirement as means of

averting fraud, discouraging the submission of unwarranted contractor claims, and

encouraging settlements).

In asserting that “a certified public accountant employed by CSX, ‘certif[ied]’ the

substance of the claim,” CSX refers to a box on Standard Form 95 beneath which appears

the signature of Mr. Edward Berlin. See Pl.’s Mem. at 12 (citing Def.’s Mot. App. at 15).

The box contains the following language: “I certify that the amount of a claim covers

only damages and injuries caused by the incident above and agree to accept said amount

in full satisfaction and final settlement of this claim.” Def.’s Mot. App. at 15.

Even assuming that this language could be read to affirm that “the amount

requested accurately reflects the contract adjustment for which the contractor believes the

Federal Government is liable,” it certainly does not affirm that “the claim is made in good

faith,” that “the supporting data are accurate and complete to the best of the contractor’s

knowledge and belief,” or that “the certifier is authorized to certify the claim on behalf of

the contractor”—all of which are required for a valid certification under the CDA. See

41 U.S.C. § 7103(b)(1).

There is no merit to CSX’s argument that if its certification is not adequate under

the CDA’s requirements, it should be considered a “defective certification” within the

meaning of 41 U.S.C. § 7103(b)(3). Pl.’s Resp. at 12. FAR 33.201 defines a “defective

certification” as “a certificate which alters or otherwise deviates from the language in

33.207(c) or which is not executed by a person authorized to bind the contractor with

respect to the claim.” Because “‘[a]lter’ and ‘deviate’ imply some relationship to the

original from which they depart,” Scan-Tech Sec., L.P. v. United States, 46 Fed. Cl. 326,

337 (2000), courts have interpreted this definition to require a defective certification to at

least “resemble the statutory language.” Sam Gray Enters., 32 Fed. Cl. 526 at 530.

Under these standards, the language cited by CSX fails to amount to a “defective

certification.” CSX relies on the certification language of Standard Form 95, which, as

noted above, “certif[ies] that the amount of [the] claim covers only damages and injuries

caused by the incident above and agree to accept said amount in full satisfaction and final

settlement of this claim.” Def.’s Mot. App. 1. This certification “does not simply ‘alter

or otherwise deviate from’ the standard certification language.” Scan-Tech, 46 Fed. Cl.

at 337. It bears no resemblance to the required CDA certification beyond including the

word “certify.” See id. (holding that “significant words” in the CDA certification beyond

“certify” include “best knowledge” and “belief”). Therefore, it must be treated as a

failure to certify the claim, not a defective certification. Because of this failure to certify,

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CSX’s claim is not valid within the meaning of the CDA, and this Court lacks subject

matter jurisdiction over CSX’s action for breach of contract.

CONCLUSION

For the foregoing reasons, the government’s motion to dismiss for lack of subject

matter jurisdiction is GRANTED and plaintiff’s complaint is DISMISSED without

prejudice. Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Judge

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