Ogunniyi v. United States

ORIG!E\IAI

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No. 15-581C

Filed: December 10, 2015

FILED

DEC t0 206

* * * * * * * * * * * * * * * l' * ** *

i.

U.S. COURT OF

FEDERAL CI-AIMS

VICTOR OGUNNIYI,

Plaintiff, Pro Se Plaintiff; Motion to

v,

Dismiss; Lack of Subject Matter

Jurisdiction; Breach of Contract;

UNITED STATES, Third-Party Benefi ciary.

Defendant.

* * :l * * * * * * * * + * * * * *

Victor Ogunniyi, p1q se, Lemon Grove, CA.

Reta E. Bezak, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With her were Martin F'

Hockey, Jr., Assistant Director, Robert E. Kirschman, Jr., Director, Commercial

Litigation Branch, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,

Civil Division, Washington, D.C. Stephen Tobin, Naval Litigation Office, Office of the

General Counsel, of counsel.

ORDER

HORN. J.

FINDINGS OF FACT

On June 8,2015, plaintiff Victor Ogunniyi filed a pro se complaint in the United

States Court of Federal Claims, in which he alleges a number of claims against the United

States arising from a contract between his company, Commissioning Solutions Global

LLC (CSG), and the United States Navy to provide lube oil flushing services. Plaintiff

seeks "general, special and incidental damages in the full value of the contract sum" with

interest, punitive damages, and declaratory relief for an alleged breach of contract and

various tortious acts, which plaintiff asserts caused financial and personal hardship.

According to the parties' submissions and the Armed Services Board of Contract

Appeals (ASBCA) decision issued on August 7, 2014, the Navy Southwest Regional

Maintenance Center (SWRMC) awarded Contract No. N55236-13-D-0001 to CSG on

November 1,2012 for hydraulic/lube oil flush services on Navy vessels located within a

50-mile radius of San Diego, California. The contract included one base year and four

one-year option periods with the period of performance to begin on the contract award

date, November 1,2012. The contract between the Navy and CSG was an indefinite-

quantity (la) type contract under which work would be ordered by the award of fixed-price

delivery orders in accordance with Federal Acquisition Regulation (FAR) 52.216-18,

Ordering (Oct. 1995); FAR 52.216-19, Ordering Limitations (Oct. 1995); and FAR 52.216-

22, Indefinite Quantity (Oct. 1995). Each of these clauses was incorporated in full text

into the contract. The guaranteed minimum amount on the contract was $3,000.00, and

could be met through the issuance of one or more delivery orders within five years of the

contract award. The contract clauses specifically stated that the government had no

obligation to issue delivery orders to CSG beyond the minimum contract guarantee

amount. Plaintiff has not alleged that defendant failed to meet the contract's $3,000.00

ordering requirement.

The parties' submissions show that this case has extensive procedural history. On

February 13,2014, CSG filed a certified claim with the SWRMC contracting officerfor lost

profits of $3,599,668.17, $1,000,000.00 to restore equipmentto original functionality, and

$5,000,000.00 for emotional stress, instability, and family reputation. The contracting

officer issued a final decision on April 4, 2014 denying CSG's claim in its entirety. CSG

appealed the contracting officer's final decision to the ASBCA on April 10, 2014.1 In its

appeal, CSG made numerous allegations concerning Contract No. N55236-13-D-0001

between CSG and the Navy, including that the contract was essentially a requirements

contract such that the Navy was required to order any hydraulic/lube oil flush services on

Navy vessels located within a S0-mile radius of San Diego, California from CSG and that

the Navy failed to comply with this obligation, which allegedly resulted in a myriad of

problems for plaintiff. In an August 7, 2014 decision, ASBCA Administrative Judge Lopes

dismissed CSG's appeal because it failed to state a claim upon which relief could be

granted. See Commissionino Solutions Global. LLC, A.S.B.C.A. No. 59254, 14-1 B.C.A.

1T 35,695, 2014 WL 4073074 (Aug 7, 2014). Judge Lopes held that, even assuming all

of plaintiff's allegations to be true, such facts still could not constitute a breach of contract

because the contract was an lQ type contract, the Navy was not prohibited from ordering

hydraulic/lube oil flush services from other parties, and the Navy had no contractual

obligation to order work from CSG so long as it satisfied the $3,000.00 minimum. See jg!.

Administrative Judge Lopes further held that the appropriate time for CSG to argue that

the contract should have been a requirements type contract was before the contract was

awarded, therefore, CSG's argument was untimely. See id.

CSG appealed the ASBCA's decision to the United States Court of Appeals for the

Federal Circuit. On December 2,2014, in a brief, non-precedential Order, the Federal

Circuit dismissed the appeal in accordance with Federal Circuit Rules 47 .3 and 52(aX1)

(2014) tor failure to file the required Entry of Appearance form by an attorney admitted to

the bar of the court, and failure to pay the docketing fee. See Commissionino Solutions

Global LLC v. Mabus, 14-1817 (Fed. Cir. Dec. 2,2014). CSG then submifted what was

1 Plaintiff's first submission to the ASBCA was dismissed without prejudice for failure to

state a sum certain. @ Commissioninq Solutions Global. LLC, A.S.B.C.A. No. 59007-

945, 14-1 B.C.A. fl 35,523, 2014 WL 641322 (Feb. 5, 2014). Plaintiff subsequently filed

a claim with a sum certain to the SWRMC contracting officer, which was denied, and

plaintiff appealed the contracting officer's final decision to the ASBCA.

construed as a motion for reconsideration of the court's earlier dismissal of plaintiffs

appeal. Again, in a brief, non-precedential Order, the Federal Circuit denied the motion

for reconsideration because CSG still had not filed an attorney's Entry of Appearance or

paid the docketing fee. See Commissioninq Solutions Global LLC v. Mabus, 14-1817

(Fed. Cir. March 19, 2015).

Subsequently, plaintiff filed a complaint in this court. Defendant filed a motion to

dismiss plaintiffls complaint pursuant to Rule 12(bX1) and Rule 12(bX6) of the Rules of

the United States Court of Federal Claims (RCFC) (2015). In a footnote, defendant

stated:

Mr. Ogunniyi names himself as plaintiff in this suit rather than CGS [sic].

This may be an attempt to avoid this Court's Rule 83.1 (a)(3), which prohibits

a pro se litigant from representing a corporation (the Federal Circuit cited

failure to abide by a similar rule as part of its decision to dismiss CSG's

appeal). Further, although Mr. Ogunniyi is the "Sole Owner" of CSG, the

contract he alleges the Government breached was between the Navy and

CSG. Accordingly, CSG is the proper plaintiff in this case.

(internal citations omitted). Defendant also argued that, "although Mr. Ogunniyi names

himself as plaintiff in the suit before this Court, his claims surround an alleged breach of

contract to which CSG and not Mr. Ogunniyi was a party." Thereafter, this court issued

an Order requiring the parties to address the issue of the proper party plaintiff, whether

Mr. Ogunniyi is in privity of contract with the United States, as required by the Tucker Act,

28 U.S.C. S 1491(aX1) (2012), and whether Mr. Ogunniyi was an intended third party

beneficiary to CSG's contract. In accordance with the Order, defendant submitted

additional briefing arguing that "Mr. Ogunniyi is not in privity of contract with the United

States: therefore, his claims of breach of contract on behalf of CSG should be dismissed."

Defendant further argued that Mr. Ogunniyi was not a third-party beneficiary. Plaintiff,

however, responded that "[t]he Plaintiff via his company (CSG) has expressed and

implied [sic] contract with the United States" thus he has "both direct privity and third-party

beneficiary status."

DISCUSSION

The court recognizes that plaintiff has expended a great deal of effort to develop

his lengthy complaint. Nonetheless, in order for his case to proceed in this court, he must

be able to establish that this court has jurisdiction. The court also recognizes that plaintiff

is proceeding pro se, without the assistance of counsel. When determining whether a

complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se 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 p se complaint be held to "less

stringent standards than formal pleadings drafted by lawyers"), reh'q denied,405 U.S.

9aB (972); 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); Matthewsv. United States,750 F.3d 1320,1322 (Fed. Cir.20'14), Diamond

v. United States, 115 Fed. C|.516, 524,aft'd,603 F. App'x 947 (Fed. Cir.2015), cert.

denied 1 35 S. Ct. 1 909 (2015). "However, "'[t]here is no duty on the part of the trial court

to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.""' Lenqen

v. United States, 100 Fed. Cl.317,328(2011) (alterations in original) (quoting Scooin v.

United States,33 Fed. C|.285,293 (1995) (quoting Clarkv. Nat'l Travelers Life lns. Co.,

518 F.2d 1167, 1'169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. Cl. 89,

94,aft'd,443 F. App'x 542 (Fed. Cir.2011); 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 g and Tavlor v.

United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing

jurisdiction by a preponderance of the evidence."), reh'q and reh'o en banc denied (Fed.

Cir. 2002)); see also Shelkofskv v. United States, 119 Fed. Cl. 133, 139 (2014) ("[Wjhite

the court may excuse ambiguities in a pro se plaintiffs complaint, the court'does not

excuse [a complaint's] failures."'(quoting Henke v. United States, 60 F.3d 795, 799 (Fed.

Cir. 1995)); Hanis 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).

As a threshold issue, RCFC 83.1(a)(3) provides that an "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 other proceeding before this

court." RCFC 83.1(a)(3) (2015). In his complaint, ptaintiff describes "Commissioning

Solutions Global LLC" as "a small engineering and technical services company."

Defendant argues that "to the extent that Mr. Ogunniyi does seek to represent CSG, this

Court's rules do not permit him to do so." The parties do not dispute that plaintiff is trying

to pursue his case in this court pro se or that csG is a corporate entity. In accordance

with RCFC 83.1(a)(3), plaintiff cannot represent the interests of CSG before this coun

because he is not an attorney admitted to the bar of this court. In his complaint and his

subsequent submissions to the court, plaintiff confuses and conflates himself and his

company, CSG. Plaintiff goes so far as to assert that "Victor Ogunniyi and Commissioning

Solutions Global/CSG are one in the same." Plaintiff and CSG, however, are separate

under the law, and plaintiff cannot cloak himself as csG in order to assert a claim for

damages against the United states. The court also notes that in plaintiffs prior appeals

to the ASBCA and the Federal circuit, csG was the named plaintiff. see commissioninq

Solutions Global, LLC, A.S.B.C.A. No. 59254, 14-1 B.C.A. 1l 35,695, 2014WL4073074.

To the extent that Mr. ogunniyi's complaint is a veiled attempt to allow him to argue on

behalf of csG and seek essentially a second appeal or review of the contracting officer's

decision against CSG, under RCFC 83.1 (a)(3), absent a notice of appearance filed by an

attorney admitted to this court, plaintiff's complaint must be dismissed. Since no such

notice of appearance has been filed, this court cannot proceed to adjudicate plaintiffs

case, which is in fact a claim for an alleged violation of the contract with CSG.

In addition, it is well established that "'subjeclmatter jurisdiction, because it

involves a court's power to hear a case, can never be forfeited or waived."' Arbauoh v. y

& H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 53S 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, 562 U.S. 428 (20'11): see also Gonzalez v. Thaler, 132 S.

Ct. 641, 648 (2012) ("When a requirement goes to subjecfmatter 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 51a)); Soecial Devices, Inc. v.

OEA. |nc.,269 F.3d 1340,1342 (Fed. Cir. 2001) ('[A] court has a dutyto inquire into its

jurisdiction to hear and decide a case." (citing Johannsen v. Pav Less Druq Stores N.W..

Inc.,918 F.2d 160, 161 (Fed. Cir. 1990)); View Eno'o. Inc. v. RoboticVision Svs., Inc.,

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 hibunal's subject-matter

jurisdiction overthe controversy." Sebelius v. Auburn Req'l Med. Ctr., 133 S. Ct.817,824

(2013); see also Arbauqh v. Y & H Coro., 546 U.S. at 506 ("The objection that a federal

court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its

own initiative, at any stage in the litigation, even after trial 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

Arbauqh v. Y & H Corp., 546 U.S. at 506-07)); Rick's Mushroom Serv.. lnc. v. United

States, 521 F.3d at 1346 ("[A]ny party may challenge, or the court may raise sua sponte,

subject matter jurisdiction at any time." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506;

Folden v. United States, 379 F.3d 1344,1354 (Fed. Cir.); and Fanninq, Phillips & Molnar

v. West, 160 F.3d 717,720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. Cl.71,76,

appeal dismissed , 425 F . App'x 902 (Fed. Cir. 2011\. ln fact, "[s]ubject matter jurisdiction

is an inquiry that this court must raise sua sponte, even where . . . neither party has raised

this issue." Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdinqs,370 F.3d 1354, 1369

(Fed. Cir.) (citing Textile Prods.. Inc. 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'o en bancdenied (Fed. Cn.2004), cert. qranted in partsub. nom

Lab. Corp. of Am. Holdinqs v. Metabolite Labs.. lnc., 546 U.S. 975 (2005), cert. dismissed

as improvidentlv qranted, 548 U.S. 124 (2006)i see also Avid ldentification Svs.. lnc. v.

Crystal 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'q and reh'o en banc denied, 614 F.3d 1330 (Fed. Cir.

2010), cert. denied, 131 S. Ct.909 (2011).

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. $ 1a91(a)(1). As interpreted by the 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.3d871,875 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir.

2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310,1314

(Fed. Cir. 1999).

Plaintiff asserts that this court has jurisdiction "to enter judgement [sic] in

government contract cases," and this jurisdiction "has empowered this court to hear the

Plaintiffls case as further described in 28 u.s.c. S 1491 . lt is also part of the Due process

to ensure that the contract Disputes Act (cDA) 41 u.s. code g [sic] is honored and

respected." (emphasis in original). In a later submission, plaintiff states: "[t]he Plaintiff's

case has been presented on the Tucker Act and not on cDA." plaintiff also states:

(Victor Ogunniyi) as Chief Executive Officer and president of CSG. and. as

Senior Officer and as individual, did in fact enter into an express and implied

Contract with the United States, by the execution of a CIS [Commercia

Industrial Servicesl Contract in October 2012; therefore, both Victor ano

CSG are DIRECT Beneficiaries to any Ruling and Judgment handed down

by this Honorable Court.

(capitalization in original). Plaintiffls statements as to the jurisdiction of this coun

demonstrate his confusion

Defendant argues that plaintiffls complaint should be dismissed for lack of subject

matter jurisdiction because Mr. Ogunniyi is not in privity of contract with the United States

and should not be allowed to assert his breach of contract claim. Defendant also asserts

that Mr. ogunniyi is not a third party beneficiary who can sue the United states for breach

of contract despite the absence of privity.

As stated in the Tucker Act, 28 U.s.c. g 1a9i (a)(1), 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 Federal claims for express and implied contracts. see cieneqa

Gardensv. united states, 194 F.3d 1231,1239 (Fed. cir. 1998) ("Undertneruckernct,

the court of Federal claims has jurisdiction over claims based on iany express or implied

contract with the united states.'28 u.s.c. g 1a91(a)(1) (i994). we have stated that ,1t1o

maintain a cause of action pursuant to the Tucker Act that is based on a contract, ihe

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. AZO (teg9)., sCCalsgESICg

Exp. Lines v.United states. 739 F.3d 689,693 (Fed. cir. zot+); rtbxrao. lr.c. v. unitea

states, 424 F.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 ptaintiff must be in privity wtftr ttre uniteo

States to have standing to sue the sovereign on a contract claim," but noting exceptions

to this general rule (citing Anderson v. United States,344 F.3d 1343, 1352 (Fed. Cir.),

reh'o and reh'q en banc denied (Fed. Cir. 2003))); United States v. Alqoma Lumber Co.,

305 U.S. 415, 421 (1939))), reh'q and reh'q en banc denied (Fed. Cir. 2005), cert. denied,

548 U.S. 904 (2006); Erickson Air Crane Co. of Wash. v. United States. 731 F.2d 810,

813 (Fed. Cir. 1984) ("The government consents to be sued only by those with whom it

has privity of contract.").2

Although plaintiff argues that there is an express and implied contract between

himself and defendant, plaintiffs allegations rest on his idea that he and CSG, as he

states, are "one in the same," a theory that is not viable in this court. The parties do not

disoute that there is a contract between the United States and CSG, however, as

previously noted, CSG is not a plaintiff in the above captioned case and Mr. Ogunniyi is

prohibited from representing CSG under RCFC 83.1(aX3). In entering into Contract No.

N55236-13-D-0001 for hydraulic/lube oil flush services, privity of contract was created

between CSG and the United States, not between Mr. Ogunniyi and the United States,

regardless of his role in the company. Accordingly, without privity of contract, plaintiffs

complaint must be dismissed unless plaintiff can demonstrate that he is a third party

beneficiary of the contract.

"This Court has recognized limited exceptions to [the privity rule] when a party

standing outside of privity'stands in the shoes of a pafi within privity."' See Sullivan v.

United States,625 F.3d 1378, 1380 (Fed. Cir.2010) (quoting First Hartford Corp. Pension

Plan & Trust v. United States, 194 F.3d 1279,1289 (Fed. Cir. 1999), reh'o en banc denied

(Fed. Cir. 2000)). 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 States. See Sioux Honev Ass'n v. Hartford Fire

lns. Co., 672F.3d at 1056 ("A plaintiff lacking privity of contract can nonetheless sue for

damages under that contract if it qualifies as an intended third-party beneficiary.); {lgile

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. Cl. 81, 95 (2007); Enterqy Nuclear Indian Point 2, LLC v. United

States, 64 Fed. Cl. 515, 523 (2005) ("To have standing to bring a breach of contract claim,

2

As stated in this court's August 21, 2015 Order, in order for this court to have jurisdiction

under the Tucker Act, the party seeking relief must be in privity of contract with the

government. SeeWinterv. FloorPro. lnc.,570 F.3d 1367,1372 (Fed. Cir.2009). Aparty

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 States. See Sioux Honev Ass'n v. Hartford Fire Ins. Co.,672 F.3d 1041, 1056

(Fed. Cir.), cert. denied, 133 S. Ct. 126 (2012).

7

plaintiffs must also be in privity of contract with the government or a third party beneficiary

of a contract with the government."); O. Ahlboro & Sons, lnc. v. United States ,74 Fed. Cl.

178, 188 (2006) ("The third-party beneficiary exception exists to cover situations in which

the subcontractor 'stands in the shoes of a party with privity."' (quoting First Hartford Corp.

Pension Plan & Trust v. United States, 194 F.3d at 1289)). But see 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 'establish[ing] privity of contract [is] if [plaintiffs] are intended third-party

beneficiaries of a contract with the United States . . . ."' (quoting Chancellor Manor v.

United States, 331 F.3d at 901)) (modifications in original), iudqment entered, 75 Fed. Cl.

321, modifvinq in part,76 Fed. C|.470, reconsideration denied,76 Fed. Cl.497 (2007),

rev'd on otherqrounds,5S3 F.3d 1344 (Fed. Cir.2009), partial reh'q qranted,638 F.3d

781 (Fed. Cu.2011); Klamath lrriqation Dist. v. United States,67 Fed. Cl. 504,532 ("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 1289)), modifuinq order,

68 Fed. Cl. 119, denvinq certification of interlocutorv appeal, 69 Fed. Cl. 160 (2005). "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." Glass v. United States, 258 F.3d 1349, 1354 (Fed.

Cir. 2001).

Defendant asserts that the "complaint does not allege any basis upon which any

benefit was owed to Mr. Ogunniyi, individually, under the contract, nor does any clause

of the contract reflect an intention to so benefit him." Defendant argues further that "any

benefit to Mr. Ogunniyi under the contract stems incidentally from his position as owner

of the contracting company, not as a separate beneficiary." Plaintiff, however, asserts

that defendant knew about the relationship between himself and CSG. Despite

defendant's alleged knowledge about the relationship between plaintiff and CSG, plaintiff

has failed to establish that there is any language in the contract that reflects an intention

to benefit Mr. Ogunniyi directly. The parties' submissions demonstrate that the contract

was entered into so that CSG would provide the services agreed to under the contract.

Accordingly, because plaintiff did not have privity of contract with the United States and

was not an intended third-party beneficiary of Contract No. N55236-13-D-0001 for

hydraulic/lube oil flush services, plaintiffs breach of contract allegations also must be

dismissed for lack of jurisdiction.

Plaintiff makes a number of other allegations sounding in tort that stem from or are

related to the alleged breach of contract, including: potential fraud and conspiracy; unfair

competition and discrimination with gouging; intentional destruction of a small business

entity; reckless misuse of tax payers' money; intentional misrepresentation of facts;

compromising the Navy mission; and, destruction of property, staffing and heightened

stress. To the extent that these allegations in plaintiffs complaint are separate from

plaintiffs allegations of breach of contract, the allegations are dismissed because this

court does not possess jurisdiction over claims that sound in tort. See 28 U.S.C. g 1491(a)

("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."); see also Keene Coro. v. United States, 508 U.S. 200, 214 (1993);

Rick's Mushroom Serv.. Inc. v. United States, 521 F.3d at 1343; Alves v. United States,

133 F.3d 1454,1459 (Fed. Cir. 't998); Brown v. United States, 105 F.3d 621, 623 (Fed.

Cir.), reh'q denied (Fed. Cir. 1997); Golden Pac. Bancorpv. United States, 15 F.3d 1066,

1070 n.8 (Fed. Cir.), reh'q denied, en banc suosestion declined (Fed. Cir.), cert. denied,

513 U.S. 961 (1994); Hamoel v. United States, 97 Fed. Cl. at 238; Woodson v. United

States, 89 Fed. Cl. 640, 650 (2009); McCullouqh v. United States, 76 Fed. Cl. 1, 3 (2006),

reh'q denied (Fed. Cir.) cert. denied, 552 U.S. 1050 (2007) ;Aqee v. United States, 72

Fed. Cl. 284,290 (2006); Zhenqxino v. United States,71 Fed. Cl.732,739, aff d,2O4 F.

App'x 885 (Fed. Cir.), reh'o denied (Fed. Cir. 2006). Therefore, to the extent any of

plaintiffs claims sound in tort, those claims must be dismissed.

Finally, in addition to the fact that plaintiff is not able to represent CSG p1q se,

plaintiff is not in privity with the United states, nor is plaintiff an intended third-party

beneficiary of CSG's contract with the Navy, and is, therefore, unable to pursue the aoove

captioned suit in this court, CSG's decision initially to appeal the contracting officer's April

4, 2014 final decision to the ASBCA foreclosed Mr. Ogunniyi's or CSG's ability to bring a

suit based on the same contract and claim in this court according to the election doctrine

included in the Contracts Disputes Act (CDA). See 41 U.S.C. S 7104 (2012). The CDA

established an exclusive dispute-resolution mechanism for "any express or implied

contract . . . made by an executive agency" for four types of contracts, including those

made for "the procurement of services." 4 l U. S. C. S 7 1 02(a)(2) (20 1 2). 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 ofiicer

responslble forthat contract. see 41 u.s.c. g 7103(a) (20i2). lf the contracting officer

renders a final decision adverse to a contractor's claim, the contractor may appeal that

decision to the relevant agency Board within ninety days of receiving it. See 41 U.S.C. S

710a@). 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 Federal claims," 41 u.s.c. S 7104(b)(j), so long as that action is

brought within twelve months of the contractor's receipt of the adverse contractino

officer's final decision. See 41 U.S.C. S 7104 (b)(3).

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 agency Board or bringing a suit in this court, the contractor is precluded fiom

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 Bowers Inv.

Co,. LLC v. United States, 695 F.3d 1380, 1383 (Fed. Cir. 2012), Bonneville Assocs. v.

United States, 43 F.3d 649, 655 (Fed. Cir. 1994) (citing Mark Smith Constr. Co. v. United

States, 10 Cl. Ct.540, 544 (1986)). According to the United States Court of Appeats for

the Federal Circuit:

It is well established that, pursuant to the Contract Disputes Act, a

contractor 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

choice has given rise to a body of jurisprudence known as the "Election

Dockine. "

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. Inc. v. United States, 839 F.2d 1539, 1541-42 (Fed. Cir. 1988) (citing

TuttleMhite Constructors. Inc. v. United States ,228 Cl. Cl. 354, 361 , 656 F .2d 644, 647 ,

649 (1981)) (footnote omitted). This rule was reiterated in Texas Health Choice. L.C. v.

Office of Personnel Manaqement, in which the Federal Circuit stated:

The CDA provides alternative forums for challenging a [contracting officer's]

final decision: a contractor may file an appeal with the appropriate board of

contract appeals, 41 U.S.C. S 606 (1988), or appeal directly to the Court of

Federal Claims,41 U.S.C. S 609(aX1) (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. v. Office of Pers. Mqmt., 400 F.3d 895, 899 (Fed. Cir.), reh'q

and reh'q en banc denied (Fed. Cir.2005); see also Palafox St. Assocs.. L.P. v. United

States, 122 Fed. Cl. 18,26 (2015) ("Pursuant to the election doctrine, once a contractor

chooses the forum in which to lodge its appeal, the contractor's choice is binding, and the

contractor is no longer able to pursue its appeal in the alternate forum." (citing Nat'l

Neiqhbors. Inc. v. United States, 839 F.2d at 1542)); Bowers lnv. Co v. United States,

104 Fed. C|.246,254(2011), affd,695 F.3d 1380 (Fed. Cir.2012); Paradiqm Learninq,

lnc. v. United States, 93 Fed. Cl. 465, 474 (2010) ("Thus, if a contractor makes an

informed, knowing, and voluntary decision to pursue its appeal 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

Bonneville Assocs. v. United States, 43 F.3d at 655)); Am. Telecom Corp. v. United

States, 59 Fed. Cl. 467,471 (2004) ("The'in lieu of language in section 609(a) clearly

indicates that the contractor has a choice of forums but does not allow the conkactor to

pursue its claims before both forums." (citing TuttleM/hite Constructors. Inc. v. United

States, 228 Ct. Cl. at 361, 656 F.2d at 649)). For a complainant's choice of forum to bar

subject matter jurisdiction in the unselected forum, the reviewing forum must have had

jurisdiction over the original claims. See Bonneville Assocs., Ltd. P'shp. v. Barram, 165

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F.3d 1360, 1362 (Fed. Cir.) (citing BonnevilleAssocs. v. United States,43 F.3d at653),

cert. denied, 528 U.S. 809 (1999).

The contracting officer's final decision, dated April 4,2014, informed CSG and Mr.

Ogunniyi that he could choose to appeal the decision to the ASBCA within ninety days

or, in lieu of appealing the contracting officer's decision to the ASBCA, he could "bring an

action directly on the claim in the United States Court of Federal Claims." This

demonstrates that the subsequent decision by CSG to appeal to the ASBCA 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,114Fed.Cl.773,788(2014) (holdingthatthecontracting

officer's communication to the plaintiff of his options for appeal under the CDA supported

a finding that plaintiffs subsequent decision to appeal to the CBCA was informed,

knowing, and voluntary). CSG filed its appeal of the contracting officer's April 4,2014

decision on April 10, 2014 with the ASBCA. The ASBCA appropriately exercised its

jurisdiction over the appeal and issued a decision on August 7, 2014 denying CSG's

claim.

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 Phillios/Mav Coro. v. United States, 524 F.3d 1264, 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,920 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. Grp. v. United States, 115 Fed. Cl. 607, 612 (201\;

BRC Lease Co. v. United States, 93 Fed. Cl. 67,72 (2010) (holding that if separate

contracting officer decisions were based on substantially the same facts, the election

doctrine barred their appeal to separate forums (citing Glenn v. United States, 85g F.2d

1277, 1280 (Fed. cir. 1988))). In the present case, it is evident that the claims advanced

by Mr. ogunniyi in this court are based on contract No. N55236-13-D-0001 , entered into

between csG and the Navy, and are substantially identical to those included in the appear

to the ASBCA. All of plaintiffls claims, before the ASBCA and this court, stem from the

same allegation that, under the contract, the Navy was required to order any

hydraulic/lube oil flush services on Navy vessels located within a SO-mile radius of San

Diego, California from CSG and, in failing to do so, the Navy allegedly breached the

contract. As the ASBCA already has considered and denied csG's appeal from the

contracting officer's final decision, this court is precluded from reconsidering the matter,

and Mr. Ogunniyi's claim in this court must be dismissed for this reason as well.

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CONCLUSION

For all of the many reasons discussed above, defendant's motion to dismiss is

GRANTED. Plaintiffs complaint is not properly before this court and must be

DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this Order.

IT IS SO ORDERED.

MARIAN BLANK HOR

Judge

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