Estes Express Lines v. United States

In the United States Court of Federal Claims

No. 11-597C

Filed September 29, 2015

)

ESTES EXPRESS LINES, )

)

Plaintiff, )

) Contract Disputes Act (41 U.S.C. §§

v. ) 7101-09); RCFC 12(b)(1); RCFC 56;

) Federal Acquisition Regulation; Certified

THE UNITED STATES, ) Claim; Sum Certain.

)

Defendant. )

)

Robert D. Moseley, Jr., Counsel of Record, Smith Moore Leatherwood LLP, Greenville,

S.C., for plaintiff.

Daniel B. Volk, Trial Attorney, Martin F. Hockey, Jr., Assistant Director, Robert E.

Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General,

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

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, Estes Express Lines, brought this action against the United States to recover

freight charges incurred by the Marine Corps Community Services pursuant to the Contract

Disputes Act, 41 U.S.C. §§ 7101-09 (2012). This matter is on remand from the United States

Court of Appeals for the Federal Circuit, Estes Express Lines v. United States, 108 Fed. Cl. 416

(2013), rev’d, 739 F.3d 689 (Fed. Cir. 2014), and on the parties’ cross-motions for summary

judgment and defendant’s motion to dismiss pursuant to Rules 12(b)(1) and 56 of the Rules of

the United States Court of Federal Claims (“RCFC”). For the reasons set forth below, the Court

GRANTS defendant’s motion to dismiss for lack of subject-matter jurisdiction and DENIES the

parties’ cross-motions for summary judgment.

II. PROCEDURAL AND FACTUAL BACKGROUND1

A. Factual Background

This matter involves a long-standing dispute over unpaid freight charges. On October 31,

2007, the Marine Corps Community Services (“MCCS”) awarded contract number H0107-D-

0005 to Salem Logistics, Inc. (“Salem”), a freight broker. Estes Express Lines v. United States,

739 F.3d 689, 691 (Fed. Cir. 2014). Pursuant to that contract, Salem provided MCCS with

certain transportation and freight management services, including coordinating the pick up,

transport and delivery of vendor products to and from various MCCS, Marine Corps Exchange

(“MCX”)2 and Navy Exchange locations. Id. Pursuant to the contract, Salem billed MCCS for

the services rendered and then paid the freight carriers that provided the transportation and

freight services. Id.

1. Estes’s Freight Services

Between June 2008 and February 2009, Salem arranged for Estes Express Lines (“Estes”)

to carry various shipments called for by the contract. Id. Although Estes did not execute a

written contract with Salem for these freight services, Estes handled the shipments under its

common carrier tariff. Id. Each shipment handled by Estes was identified by a bill of lading, a

freight bill and a delivery receipt. Id.

1

The facts recounted in this Memorandum Opinion and Order are taken from the United States Court of

Appeals for the Federal Circuit’s decision in Estes Express Lines v. United States, 739 F.3d 689, 691

(Fed. Cir. 2014), as well as from plaintiff’s complaint (“Compl. at ___”), plaintiff’s motion for summary

judgment (“Pl. Mot. at ___”), plaintiff’s memorandum in support of its motion for summary judgment

(“Pl. Mem. at ___”), defendant’s response to plaintiff’s motion and defendant’s motion to dismiss or, in

the alternative, cross-motion for summary judgment (“Def. Mot. at ___”), defendant’s appendix to its

motions (“Def. App’x at ___”), plaintiff’s response and reply (“Pl. Reply at ___”), plaintiff’s appendix to

its response and reply (“Pl. App’x at ___”), and defendant’s reply in support of its motions (“Def. Reply

at ___”). Except where otherwise noted, the facts recited here are undisputed.

2

MCCS is a government entity that includes the Marine Corps Exchange. Def. Mot. at 2. And so, the

Court refers to any communication by and between MCCS or MCX and plaintiff as communication by

and between MCCS and plaintiff.

2

Pursuant to the contract between Salem and MCCS, Estes invoiced the government care

of Salem for freight charges. Id. These invoices sought $66,283.68 in discounted freight and

transportation service charges. Compl. at ¶ 13.3

2. Dispute With Salem

Although MCCS paid Salem for some of the freight services performed by Estes, Salem

did not in turn pay Estes for these services. Def. App’x at 13; Compl. at ¶ 8. Estes alerted the

government to the fact that it had not received payment from Salem in March 2009. Def. Mot. at

4; Def. App’x at 84. Upon learning about the payment problem, MCCS began paying Estes

directly for freight services for which it had not yet paid Salem. Id. However, this arrangement

did not resolve Estes’s concerns about the outstanding payments due for services for which it had

not been paid. Pl. App’x at 1, 11-12; Def. App’x at 8-9, 23-30. Consequently, the government

and Estes exchanged a series of documents seeking to resolve these outstanding invoices. Id.

Specifically, on March 27, 2009, MCCS sent Estes a letter stating that MCCS had

encountered problems with the Salem contract and was “trying to reconcile invoices, payments,

and non-payments to each carrier with the hope of paying outstanding undisputed invoices as

quickly as possible.” Def. App’x at 13-14. In that letter, MCCS requested that Estes send

MCCS “Excel spreadsheets of all open invoices for freight movements billed to Salem delivered

to MCX, MCCS or a vendor partner of MCX.” Id. at 13. Estes responded to MCCS’s letter by

email on March 27, 2009 and attached to that email “a list of all of the open bills” totaling

$66,650.61. Id. at 8-12. Subsequently, on May 6, 2009, Estes sent MCCS a past due notice

stating that if payment was not received, MCCS would owe Estes $177,588.54 in undiscounted

freight charges. Id. at 15-22. The past due notice also included a list of unpaid invoices in the

amount of $66,650.61. Id.; Pl. Reply at 3; Pl. App’x at 1-10.

3

Estes agreed to offer the government a discount rate for its services at a 70% reduction in price for

certain shipments. Pl. Mem. at 3. But, Estes maintains in this action that the government should pay the

undiscounted rate for these services because the outstanding invoices have not been timely paid. Id. And

so, in the complaint, Estes seeks to recover $147,645.33 as payment for its outstanding invoices. Compl.

at Prayer for Relief. This figure is, however, in some dispute. In its motion for summary judgment, Estes

seeks to recover of $94,344.20. Pl. Mot. at 1. And yet, in its reply brief, Estes seeks to recover

$91,844.20. Pl. Reply at 10.

3

On May 11, 2009, MCCS sent Estes an email seeking clarification of the amount Estes

was seeking from the government. Pl. App’x at 12. In particular, MCCS requested that Estes

clarify the discrepancy in the amount due, because Estes requested $177,588.54 in its May 6,

2009 email, but subsequently provided the government with invoices seeking $66,650.61. Id.

MCCS also states in this email that “[w]e will need a claim letter signed from you once final

numbers are agreed on.” Id.

Estes responded to MCCS by email on May 14, 2009. Id. at 11. In this email, Estes

provided the government with a chart summarizing its unpaid invoices. Id. The chart indicates

that the amount due is $66,650.61; but, the chart also provides that the “Amount in Dispute” is

$0.00. Id.

3. Payment Of Certain Invoices

On July 2, 2009, MCCS paid Estes $28,931.28 for freight services for which it had not

already paid Salem. Compl. at ¶ 14; Def. App’x at 47. On July 13, 2009, MCCS informed Estes

that it would not pay Estes “for amounts that MCCS has already paid to Salem Logistics.” Def.

App’x at 43. To date, Estes has not received payments for the freight services that it provided

for which the government had previously paid Salem. Id.

B. Procedural Background

On February 3, 2010, Estes commenced suit against several parties−including Salem,

M.J. Soffe, LLC, and the United States−in the United States District Court for the Middle

District of North Carolina, seeking to recover $147,645.33 in unpaid freight charges. Complaint,

Estes Express Lines v. Salem Logistics, Inc. et al., No. 10-102 (M.D.N.C. Feb. 3, 2010). On

July 8, 2011, the district court transferred Estes’s claim against the United States to this Court.

Order, Estes Express Lines, No. 10-102 (M.D.N.C. July 8, 2011).

Estes filed its complaint in this Court on October 17, 2011, seeking $147,645.33 from the

United States. Compl. at 4. On January 6, 2012, the government moved to dismiss the

complaint for lack of subject-matter jurisdiction and for failure to state a claim pursuant to RCFC

12(b)(1) and 12(b)(6). See generally, Def. Mot. Dismiss, dated Jan. 6, 2012. On January 15,

2013, the Court dismissed Estes’s complaint for lack of jurisdiction, holding that Estes failed to

show that there was privity of contract between Estes and the government with respect to the

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transportation and freight services that Estes provided. Estes Express Lines, 108 Fed. Cl. at 422

(Allegra, Judge).

On February 13, 2013, Estes appealed the Court’s decision to the United States Court of

Appeals for the Federal Circuit. Notice of Appeal, dated Feb. 13, 2013. On January 3, 2014, the

Federal Circuit reversed the Court’s decision and remanded the case. Estes Express Lines, 739

F.3d at 689. In its decision, the Federal Circuit held that the Court should not have dismissed the

complaint upon the ground that Estes had not established privity of contract, because the bills of

lading that Estes relied upon in the case were sufficient to establish privity of contract. Id. The

Federal Circuit did not “express any opinion regarding the merits of Estes’s claims and the issue

of ultimate liability.” Id. at 694.

Following the remand and the completion of discovery, Estes filed a motion for summary

judgment on April 7, 2015, seeking $94,344.20 in undiscounted freight charges from the

government. Pl. Mot. at 10. On May 8, 2015, the government responded to plaintiff’s motion

for summary judgment and also moved to dismiss the complaint or, in the alternative, for

summary judgment. See generally Def. Mot. In its motion to dismiss, the government argues

that the Court lacks jurisdiction to consider Estes’s claim, because Estes has not met the

jurisdictional requirements of the Contract Disputes Act (“CDA”). See Def. Mot. at 7-10.4 In

the alternative, the government also argues that Estes has not proven the existence of a

contractual obligation on the part of the United States that requires the government to make any

payments to Estes. Id. at 12. On May 26, 2015, plaintiff filed a reply in support of its motion for

summary judgment and a response to the government’s dispositive motion. See generally Pl.

Reply. The government subsequently filed a reply in support of its motion to dismiss or, in the

alternative, for summary judgment on June 12, 2015. See generally Def. Reply. These matters

having been fully briefed, the Court addresses the parties’ pending motions.

4

This jurisdictional issue has not been previously addressed by this Court or the Federal Circuit. See

generally 739 F.3d 689; Estes Express Lines, 108 Fed. Cl. at 416.

5

III. JURISDICTION AND LEGAL STANDARD

A. Jurisdiction, RCFC 12(b)(1)

It is well settled that subject-matter jurisdiction is a “threshold matter,” and that a case

may proceed no further if the Court lacks jurisdiction. Copar Pumice Co., Inc. v. United States,

112 Fed. Cl. 515, 527 (2013) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)).

Plaintiff carries the burden of establishing subject-matter jurisdiction by a preponderance of the

evidence. See, e.g., Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.

1988); see also McNutt v. GMAC, 298 U.S. 178, 189 (1936) (noting that the burden of proving

that the matter is properly before the Court should rest on the party seeking the Court’s

jurisdiction). When considering whether to dismiss an action for lack of subject-matter

jurisdiction, the Court “must assume all factual allegations to be true and draw all reasonable

inferences in the plaintiff’s favor.” Redondo v. United States, 542 F. App’x 908, 910 (Fed. Cir.

2013)

In addition, “federal 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, 562 U.S. 428, 434 (2011). In this regard, “[t]he objection that a federal court lacks

subject-matter jurisdiction . . . may be raised . . . at any stage in the litigation, even after trial and

the entry of judgment.” Arbaugh, 546 U.S. at 500. And so, if at any point the Court determines

that it does not have jurisdiction, the Court must dismiss the case. Id.; RCFC 12(b)(1); see

Copar Pumice Co., Inc., 112 Fed. Cl. at 527.

B. Summary Judgment, RCFC 56

Under Rule 56 of the Rules of the United States Court of Federal Claims, a party is

entitled to summary judgment when there is “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” RCFC 56; Anderson v. Liberty Lobby, 477

U.S. 242, 247 (1986). A fact is material if it might affect the outcome of a case. See Anderson,

477 U.S. at 248 (“Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment. Factual disputes that are

irrelevant or unnecessary will not be counted.”); see also Applied Med. Res. Corp. v. Tyco

Healthcare Grp. LP, 534 F.3d 972, 977 (Fed. Cir. 2013). An issue is genuine if a reasonable

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trier of fact could find for the non-moving party. Anderson, 477 U.S. at 250 (“The inquiry

performed is the threshold inquiry of determining whether there is the need for a trial–whether,

in other words, there are any genuine factual issues that properly can be resolved only by a finder

of fact because they may reasonably be resolved in favor of either party.”); see Frolow v. Wilson

Sporting Goods, 710 F.3d 1303, 1310 (Fed. Cir. 2013).

In resolving motions for summary judgment, the Court will not make credibility

determinations and will draw all inferences ‘“in the light most favorable to the party opposing

the motion.”’ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). In doing so, the Court

does not weigh the evidence presented, but instead must “determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249; Agosto v. INS, 436 U.S. 748, 756 (1978); see Am.

Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004). And so, the Court may only grant

summary judgment when “the record taken as a whole could not lead a rational trier of fact to

find for the nonmoving party . . . .” Matsushita, 475 U.S. at 587.

The above standard applies when the Court considers cross-motions for summary

judgment. Principal Life Ins. Co. & Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014);

see Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both parties

move for summary judgment, ‘“the court must evaluate each party’s motion on its own merits,

taking care in each instance to draw all reasonable inferences against the party whose motion is

under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting Mingus

Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

C. The Contract Disputes Act

The United States Court of Federal Claims is a court of limited jurisdiction and the Court

“possess[es] only that power authorized by Constitution and statute.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under the Tucker Act, the Court has limited

jurisdiction to adjudicate “any claim against the United States founded either upon the

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

express or implied contract with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2011).

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Specifically, the Tucker Act provides that this Court “shall have jurisdiction to render

judgment upon any claim by or against, or dispute with, a contractor arising under section

7104(b)(1) of title 41 [the Contract Disputes Act], . . . on which a decision of the contracting

officer has been issued under section 6 of that Act.” 28 U.S.C. § 1491(a)(2). Thus, the key to

establishing jurisdiction pursuant to the Tucker Act is to demonstrate compliance with the

requirements of the CDA. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995); see

M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010) (The

CDA’s requirements are mandatory and are jurisdictional prerequisites before a contractor can

file suit in this Court.).

The CDA requires that all claims by a contractor against the government be in writing

and be submitted to the contracting officer for a decision. 41 U.S.C. § 7103(a). While the CDA

itself does not define the term, the Federal Acquisition Regulation (“FAR”) 2.101(b) defines a

“claim” as follows:

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

related to the contract.

FAR 2.101(b). In this regard, this Court has long recognized that to constitute a “written

demand,” a claim must be “for something due or believed to be due” and must “provide the

contracting officer with notice of the relief requested and the legal and factual basis for that

request.” Parker v. United States, 77 Fed. Cl. 279, 286 (2007) aff’d, 280 F. App’x 957 (Fed. Cir.

2008); see Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1997)

(The written demand must include “a clear and unequivocal statement that gives the contracting

officer adequate notice of the basis and amount of the claim.”).

The FAR also provides that:

A voucher, invoice, or other routine request for payment that is not in dispute

when submitted is not a claim. The submission may be converted to a claim, by

written notice to the contracting officer as provided in 33.206(a), if it is disputed,

either as to liability or amount or is not acted upon in a reasonable time.

FAR 2.101(b) (emphasis supplied); see Parsons Global Servs., Inc. v. McHugh, 677 F.3d 1166,

1170 (Fed. Cir. 2012); Reflectone, 60 F.3d at 1575-76. And so, under this definition, demands

for payment are classified as either “routine” or “non-routine.” Parsons, 677 F.3d at 1170

8

(Whether a request for payment is routine or nonroutine is a factual distinction, which depends

on the circumstances in which the requested costs arose.). In the case of “routine” demands,

there must be a preexisting dispute in order for the demand for payment to constitute a claim

under the CDA. Id. A “demand for compensation for unforeseen or unintended circumstances

cannot be characterized as ‘routine’” and is therefore nonroutine. Reflectone, 60 F.3d at 1577.

On the other hand, vouchers, invoices and similar requests for payment are “submitted for work

done or equipment delivered by the contractor in accordance with the expected or scheduled

progression of contract performance” and are therefore routine and do not constitute a claim

unless a preexisting dispute is shown. James M. Ellett Const. Co. v. United States, 93 F.3d 1537,

1542 (Fed. Cir. 1996) (quoting Reflectone, 60 F.3d at 1577).

Under the CDA, a claim must also include a request for a final decision from the

contracting officer. M. Maropakis, 609 F.3d at 1327-28; James M. Ellett, 93 F.3d at 1543 (“This

does not require an explicit request for a final decision; ‘as long as what the contractor desires by

its submissions is a final decision, that prong of the CDA claim test is met’” (internal citations

omitted)). In this regard, the CDA permits a contractor to file an action disputing the final

decision of a contracting officer in this Court within 12 months of receiving the decision on a

claim. 41 U.S.C. § 7104(b)(3). A contractor may also seek review in this Court if the

contracting officer fails to respond to a contractor’s claim within 60 days, as provided in the

CDA. 41 U.S.C. § 7103(f). As such, the predicate for jurisdiction under the CDA is bringing an

action directly to this Court after receiving a contracting officer’s final decision on a claim, or a

deemed denial of a claim. 41 U.S.C. § 7104(b); Kellogg Brown & Root Servs., Inc. v. United

States, 115 Fed. Cl. 46, 51–52 (2014).

In addition, a claim submitted pursuant to the CDA must seek a sum certain. See M.

Maropakis, 609 F.3d at 1327; see also K-Con Bldg. Sys. v. United States, 778 F.3d 1000, 1005

(Fed. Cir. 2015) (quoting Reflectone, 60 F.3d at 1576); FAR 52.233-1(c) (2015). To satisfy the

sum certain requirement, the contractor must provide a clear, unequivocal statement of the

amount of money it is requesting. CPS Mech. Contractors, Inc. v. United States, 59 Fed. Cl.

760, 764 (2004).

Finally, the CDA requires that if the claim made by the contractor exceeds $100,000, the

contractor must certify that the claim has been made in good faith, contains accurate and

9

complete data, accurately reflects the amount sought, and that the certifier has authority to make

such representations. 41 U.S.C. § 7103(b)(1); see FAR 33.207(c). In addition, all of the CDA’s

prerequisites must be satisfied before this Court can consider a contractor’s claim and this

“waiver of sovereign immunity must be strictly construed in favor of the sovereign.” Orff v.

United States, 545 U.S. 596, 601–02 (2005); M. Maropakis, 609 F.3d at 1329 (“For the Court of

Federal Claims to have jurisdiction under the CDA, the contractor must submit a proper claim—

a written demand that includes (1) adequate notice of the basis and amount of a claim and (2) a

request for a final decision.”) (citing James M. Ellett, 93 F.3d at 1541–42). For this reason, the

jurisdictional prerequisites of the CDA are mandatory and are intended to encourage parties to

resolve contract disputes outside of the judicial process when possible. M. Maropakis

Carpentry, Inc., 609 F.3d at 1331.

IV. ANALYSIS

The government has moved to dismiss this matter for lack of subject-matter jurisdiction,

because Estes has not met the jurisdictional prerequisites to bring its claim under the CDA. See

generally, Def. Mot.5 “The objection that a federal court lacks subject-matter jurisdiction . . .

may be raised at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh,

546 U.S. at 500. And so, if at any point the Court determines that it does not have jurisdiction,

the Court must dismiss the case. Id.; RCFC 12(b)(1); see Copar Pumice Co., Inc., 112 Fed. Cl.

at 527.

For the reasons discussed below, the uncontroverted facts in this case show that plaintiff

failed to submit a certified CDA claim to the contracting officer before commencing this action.

See generally Pl. Reply. And so, the Court must dismiss the complaint for lack of subject-matter

jurisdiction.

A. Estes Has Not Submitted A Claim To The Contracting Officer

It is well-settled that submitting a written claim to the contracting officer, that provides “a

clear and unequivocal statement that gives the contracting officer adequate notice of the basis

and amount of the claim,” is a prerequisite for bringing suit in this Court under the Contract

5

Plaintiff does not dispute that the CDA applies in this case. Pl. Reply at 1-2. Rather, plaintiff argues

that it has met the mandatory requirements of the CDA. Id.

10

Disputes Act. Contract Cleaning, 811 F.2d at 592. The government argues that the Court must

dismiss this matter because Estes has not identified any document that could constitute its claim

under the CDA. See generally Pl. Mem.; Pl. Reply. In its opposition to the government’s

motion to dismiss, Estes relies upon several documents to show that it has submitted a claim

under the CDA. Pl. Reply at 2-4. For the reasons discussed below, plaintiff’s reliance upon

these documents is misplaced.

1. The March 27, 2009 Email

As an initial matter, Estes incorrectly relies upon its March 27, 2009 email to the

government to show that it submitted a valid claim under the CDA. Pl. Reply at 2. In this

regard, Estes argues that the subject email is a nonroutine request for payment and that the email

requests a final decision from the contracting officer. Id. But, a plain reading of the subject

email makes clear that it is not a claim under the CDA. Def. App’x at 8.

First, the text of the March 27, 2009 email makes clear that this email is a routine request

for payment for services rendered under the Salem contract. The email provides in pertinent part

that:

[F]ollowing is a list of all of the open bills on the MCX c/o Salem Logistics

account for you[r] review. . . . Please let me know if you need any additional

information. I look forward to hearing from you soon and working with you to

resolve the past due balance.

Id. Estes does not dispute that it sent this email to the government to facilitate the payment of its

outstanding invoices. Pl. Reply at 2. Nonetheless, Estes argues that the March 27, 2009 email is

not a routine request for payment, because Estes submitted the request for payment contained in

this email directly to the government−rather than to Salem. Pl. Reply at 4.

Estes’s decision to submit its request for payment directly to the government does not,

however, alter the routine nature of its request. Volmar Const., Inc. v. United States, 32 Fed. Cl.

746, 753 (1995) (“The FAR restriction disables contractors from submitting only a ‘voucher,

invoice, or other routine request for payment’ and thereby purporting to assert a valid claim

under the CDA.” (citing FAR 33.201)). Rather, in order for this request to be nonroutine, there

must be some evidence of an unexpected or unforeseen action on the part of the government that

is related to the demand for payment. Parsons, 677 F.3d at 1170-71 (A nonroutine request for

payment generally includes “the presence of some unexpected or unforeseen action on the

government’s part that ties it to the demanded costs.”).

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Estes puts forward no such evidence here. In fact, while there is no dispute that Salem

unexpectedly stopped paying Estes for services rendered under the Salem contract, there is no

evidence in the March 27, 2009 email−or elsewhere−to show that the government undertook any

unexpected or unforeseen action to cause Estes to send the March 27, 2009 email. See generally

Pl. Reply; Def. Mot.; Def. App’x at 8. Indeed, it is undisputed that, just prior to sending this

email, Estes received a letter from the government requesting that Estes provide information

about “all open invoices for freight movements billed to Salem delivered to MCX, MCCS or a

vendor partner of MCX.” Def. App’x at 13. Estes’s March 27, 2009 email simply provides the

government with the requested billing information. Def. App’x at 8, 13.

The submission of this kind of billing information to the government is a routine part of

the process for a government contractor to recover payment for services rendered See

Reflectone, 60 F.3d at 1575 (Invoices “submitted for work done or equipment delivered by the

contractor in accordance with the expected or scheduled progression of contract performance”

are routine. (citing FAR 2.101(b)); see also Parsons, 677 F.3d at 1170-71; Scan-Tech Sec.,

L.P. v. United States, 46 Fed. Cl. 326, 331 (2000) (“Examples of routine requests are invoices for

completed work, requests for scheduled progress payments, and vouchers for disbursement under

a cost-reimbursement contract.” (internal citations omitted)). And so, Estes’s routine request for

payment of its outstanding invoices cannot constitute its CDA claim in this case, absent evidence

of a preexisting dispute with the government. Reflectone, 60 F.3d at 1575.

Second, there is also no evidence of a preexisting dispute between Estes and the

government regarding the unpaid invoices referenced in the March 27, 2009 email. Def. App’x

at 8. Estes acknowledges that it did not even notify the government about these unpaid invoices

until March 2009. Def. App’x at 83-84 (Deposition of Wendy W. Belcher, Senior Manager at

Estes). And so, the March 27, 2009 email does not establish a preexisting dispute and this email

shows only that Estes and the government were starting to engage in negotiations to resolve the

outstanding invoices. Def. App’x at 8; Heyl & Patterson, Inc. v. O’Keefe, 986 F.2d 480, 485-86

(Fed. Cir. 1993) overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.

Cir. 1995) (Each of plaintiff’s submissions “suggests in one way or another that [plaintiff] and

the government were still negotiating. . . . None of the submissions requested a final decision,

explicitly or implicitly. . . . [Therefore,] no claim exists under the CDA as implemented by the

FAR.”); see Reflectone, 60 F.3d at 1578 (“[C]orrespondence suggesting disagreement during

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negotiations, while they may ultimately lead to a dispute, do not, for purposes of the Act, satisfy

the clear requirement that the request be in dispute.” (internal citations omitted)); Mayfair

Constr. Co. v. United States, 841 F.2d 1576, 1577 (Fed. Cir. 1988), cert. denied, 488 U.S. 980

(1988) (A “pre-dispute, negotiation posture” does not satisfy the requirements of the CDA).

In addition, Estes also incorrectly argues that the March 27, 2009 email satisfies the

CDA’s requirement to request a final decision from the contracting officer. 41 U.S.C.A. §

7103(a). In this regard, this Court has long recognized that to constitute a valid claim under the

CDA, a contractor must make a written demand for a final decision from the contracting officer.

Parker, 77 Fed. Cl. at 286; Contract Cleaning, 811 F.2d at 592. Estes does not dispute that this

email does not explicitly request a contracting officer final decision. Pl. Reply at 2.

Nonetheless, Estes argues that the statement “I look forward to hearing from you soon and

working with you to resolve past due balances” shows that Estes implicitly requested a final

decision. Id.

Este’s arguments are unavailing. A plain reading of the subject email shows that Estes is

seeking to have additional discussions with the government about its unpaid invoices. Def.

App’x at 8. There is simply no explicit−or implicit−request for a final decision from the

contracting officer in this email. Id. And so, Estes has not shown that this email satisfies the

CDA’s requirement to request a final decision from the contracting officer before commencing

this action. 41 U.S.C.A. § 7103(a).

2. The May 6, 2009 Notice

Estes is similarly misguided in arguing that its May 6, 2009 past due notice constitutes a

valid claim under the CDA. Pl. Reply at 3. This notice states in relevant part that:

This is notification that your account with Estes Express lines is past due. Failure

to remit payment in full within 20 days will result in the addition of forfeited

discount penalties and/or 30% penalty of undiscounted freight charges for the

total amount due of $177,588.54. . . . We would like to resolve any outstanding

bills on your account.

Def. App’x at 15. In addition, Estes attaches unpaid invoices in the amount of $66,650.61 to this

notice. Id. at 15-22.

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Estes’s past due notice is not a claim under the CDA. Similar to Estes’s March 27, 2009

email, there is no explicit, or implicit, request for a final decision from the contracting officer in

this notice, as required by the CDA. Def. App’x at 15; 41 U.S.C.A. § 7103(a).

The notice also does not request a sum certain, as required by the CDA. Def. App’x at

15; FAR 52.233-1(c). In this regard, the notice actually states that the amount shown as past due

is subject to change. Def. App’x at 15-22. This Court has long recognized that to satisfy the

sum certain requirement under the CDA, a contractor must provide a clear, unequivocal

statement of the amount of money it is requesting. K-Con, 778 F.3d at 1005; CPS Mech.

Contractors, 59 Fed. Cl. at 764; Reflectone, 60 F.3d at 1575. And so, plaintiff cannot rely upon

this notice to constitute its claim under the CDA.

3. The May 14, 2009 Email

Plaintiff also incorrectly argues that its May 14, 2009 email to MCCS, “providing yet

another summary of the outstanding invoices totaling $66,650.01,” constitutes a claim under the

CDA. Pl. Reply at 3. The subject email is devoid of any language to show that Estes is

requesting a final decision from the contracting officer. Pl. App’x at 11; 41 U.S.C.A. § 7103(a).

The email also does not seek a sum certain, as required by the CDA. Id.; FAR 52.233-1(c). In

fact, the email states that the “amount in dispute” is $0.00. Pl. App’x at 11. And so, like the

correspondence between Estes and the government discussed above, the May 14, 2009 email

constitutes a routine submission of its unpaid invoices for payment. Pl. App’x at 11; M.

Maropakis, 609 F.3d at 1327-28; Reflectone, 60 F.3d at 1575 (routine submissions for payment

are not a CDA claim).

4. The Package Containing All Bills Of Lading

Estes also incorrectly argues that a package of freight bills that it submitted to the

government on an unspecified date shows that it has submitted a CDA claim. Pl. Reply at 3.

Estes has not produced this package of bills in support of its opposition to the government’s

motion to dismiss. Id.; see generally, Pl. App’x; Pl. Reply. Nor has Estes shown how this

package of bills could contain a request for a final decision from the contracting officer as

required by the CDA. Pl. Reply at 3.

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It is well established that plaintiff bears the burden of showing it has satisfied all of the

jurisdictional prerequisites of the CDA. M. Maropakis, 609 F.3d at 1327 (“A plaintiff bears the

burden of establishing subject-matter jurisdiction by a preponderance of the evidence.” (citing

Reynolds, 846 F.2d at 748)). Because Estes has not shown how this package of bills could

comply with the requirements of the CDA, plaintiff cannot rely upon this package to constitute

its claim under the CDA.

5. The Email String Following The March 27, 2009 Email

Additionally, plaintiff mistakenly argues that a string of emails between Estes and the

government following its March 27, 2009 email are evidence of its claim. Pl. Rep. at 3. In this

regard, plaintiff contends that the email string shows “multiple other demands and inquiries

regarding the status of payment from the Government.” Pl. Reply at 3. But, the emails in

question make no reference to the unpaid invoices at issue in this case. Compl. at ¶¶ 14-15; Def.

App’x at 47. Rather, the subject emails pertain to invoices that the government has already paid

in July 2009. Id. And so, these emails cannot constitute Estes’s written demand for payment of

the invoices at issue in this case. Def. App’x at 23-30.

6. The July 13, 2009 Final Denial Letter

Finally, plaintiff erroneously argues that other documents−while not a claim−are

evidence of the fact that Estes submitted a claim to the government. Pl. Reply at 4. In this

regard, plaintiff points to a final denial letter sent by the government on July 13, 2009 and to a

Procurement Requisition Form 408 prepared by the government on June 4, 2009. Id. But, both

of these documents have been prepared by the government and neither the unsigned Procurement

Requisition Form nor the final denial letter establish that Estes has submitted a CDA claim. Def.

App’x at 43; Pl. App’x at 13-14. Moreover, with respect to the government’s July 13, 2009 final

denial letter, this Court has long recognized that a “contracting officer has no authority to issue a

final decision” if the contractor’s submission fails to meet all the requirements for a claim under

the CDA. M. Maropakis, 609 F.3d at 1328; D.L. Braughler Co., Inc., v. West, 127 F.3d 1476,

1480 (Fed. Cir. 1997) (“If a contractor’s submission fails to meet all of the above requirements,

it is not a ‘claim,’ and the contracting officer has no authority to issue a final decision on the

submission. As a result, any subsequent proceedings on the submission have no legal

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significance.” (citations omitted)). And so, these documents cannot establish that Estes

submitted a CDA claim to the government before bringing this action.

In sum, none of the documents relied upon by plaintiff satisfy the CDA’s mandatory

requirements that Estes submit a written claim to the government, requesting a final decision from

the contracting officer and seeking a sum certain. As a result, Estes has not met its burden to

show that the Court possess jurisdiction to consider its claim under the CDA. M. Maropakis, 609

F.3d at 1327. And so, the Court must dismiss this action. Copar Pumice Co., Inc., 112 Fed. Cl.

at 527; M. Maropakis, 609 F.3d at 1329.

B. Estes Has Not Certified Its “Claim”

The undisputed facts also show that Estes has not complied with the CDA’s requirement

to certify its claim. Pl. Reply at 6. In this regard, the CDA requires that a contractor certify any

claim that exceeds $100,000. 41 U.S.C. § 7103(b)(1). “[A] lack of any certification before filing

cannot be waived and no cure will be allowed.” Envtl. Safety Consultants, Inc. v. United States,

97 Fed. Cl. 190, 202 (2011) (citations omitted); see 41 U.S.C. § 7103(b)(3). And so, failure to

certify a claim over $100,000 “operates as a bar to this court’s jurisdiction.” Williams v. United

States, 118 Fed. Cl. 533, 539 n.7 (2014); Scan–Tech, 46 Fed. Cl. at 339 (“[48 C.F.R. 33.201]

effectively prevents a contractor from completely circumventing the certification requirement by

asserting that its failure to certify merely constituted a defect in certification that should not

deprive the court of its jurisdiction.”).

In this case, it is undisputed that Estes seeks to recover $147,645.33 in monetary damages

from the government in its complaint.6 Compl. at Prayer for Relief (The complaint states “[t]hat

Judgment be entered in favor of Plaintiff against the United States in the net charge amount of

$37,352.40, together with a loss of discount of $110,292.93, for a total judgment of $147,645.33

due to the actions of MCX.”). Estes does not dispute that it has not certified this claim prior to

commencing this action. Pl. Reply at 6. Given this, the Court must also dismiss plaintiff’s

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The Court’s jurisdiction over this matter is determined based on the circumstances existing at the time

the complaint is filed. Northrop Grumman Computing Sys., Inc. v. United States, 101 Fed. Cl. 362, 363

(2011) (“Jurisdiction is assessed based on the circumstances existing at the time the complaint was filed.”

(citing Sharman Co., Inc. v. United States, 2 F.3d 1564, 1569 (Fed. Cir. 1993))).

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complaint because Estes has not satisfied the certification requirement of the CDA. Envtl. Safety

Consultants, Inc., 97 Fed. Cl. at 202.

C. The Parties’ Cross-Motions For Summary Judgment Are Moot

The parties have also filed cross-motions for summary judgment on the question of

whether the bills of lading that Estes relies upon to establish a contract with the government are

sufficient to support Estes’s claim to recover unpaid freight charges. See generally Pl. Mem.;

Def. Mot. Because the Court does not possess jurisdiction to consider Estes’s claim, the Court

need not reach the issues raised in the parties’ cross-motions for summary judgment. See

Booth v. United States, 990 F.2d 617, 620 (Fed. Cir. 1993) (“Without subject matter jurisdiction,

the trial court’s ruling on the Government’s motion for summary judgment is moot.”); see also

Lee v. United States, 41 Fed. Cl. 36, 40 (1998) (“Because plaintiff’s complaint is to be dismissed

because of a lack of subject matter jurisdiction, plaintiff’s motion for summary judgment is

moot.”). And so, the Court denies the parties’ cross-motions for summary judgment as moot.

V. CONCLUSION

In sum, the undisputed facts in this case show that Estes has not satisfied the CDA’s

mandatory requirements to submit a certified claim to the contracting officer before commencing

this action. Indeed, the documents relied upon by plaintiff to show that it has submitted such a

claim simply do not meet the requirements of the CDA. Rather, these documents show that

Estes and the government engaged in negotiations regarding Estes’s unpaid invoices prior to the

filing of the complaint.

In reaching the conclusion that it must dismiss the complaint, the Court acknowledges

that the dispute in this case has been longstanding. Nonetheless, this Court has an independent

duty to ensure that it has jurisdiction over a matter at every stage of litigation. Maropakis, 609

F.3d at 1329; RCFC 12(b)(1); see Copar Pumice Co., Inc., 112 Fed. Cl. at 527 (If at any point

the Court determines that it does not have jurisdiction, the Court must dismiss the case). Estes

also bears the burden to show that this Court possesses subject-matter jurisdiction to consider its

claim. See, e.g., Reynolds, 846 F.2d at 748; see also McNutt, 298 U.S. at 189 (noting that the

burden of proving that the matter is properly before the Court should rest on the party seeking

the Court’s jurisdiction). Estes has not met its burden here. And so, the Court must dismiss the

complaint.

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For the foregoing reasons, the Court:

1. GRANTS defendant’s motion to dismiss;

2. DENIES as moot plaintiff’s motion for summary judgment; and

3. DENIES as moot defendant’s motion for summary judgment.

The Clerk’s Office is directed to ENTER final judgment in favor of defendant,

DISMISSING the complaint. Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

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