Petition for Writ of Certiorari — Dano Resource Recovery, Inc. v. District of Columbia

FILED

97.248 JUL 28 197

No. ptCE-OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1996

DANO RESOURCE RECOVERY, INC.,

Petitioner,

versus

DISTRICT OF COLUMBIA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

Petition for Writ of Certiorari

Peter Paul Mitrano

6 Stevens Road

Hanover, New Hampshire 03755

(603) 643-0456

Counsel! for Petitioner

Question Presented for Review

Is the decision of the Contract Appeals

Board as to Dano’s breach of contract claims void

because the Contract Appeals Board did not have

jurisdiction?

ll

Parties to the Proceeding

The caption of this case in this Court

contains the names of all parties in United States

Court of Appeals for the District of Columbia

Circuit. !

I The petitioner, Dano Resource Recovery,

Inc. (Dano), entered into a joint venture with the

Williams Group Limited Partnership. The general

partner of the Williams Group Limited Partnership is

Williams Environmental Services, Inc., which is a

wholly-owned subsidiary company of Williams

Industries, Incorporated, a public company.

eerimeaemmeiiiaiiiiiiAD

il]

Table of Contents

Question Presented

ee a re ear ee i

te ny sail ]

oe ]

Statement ofthe Case ................... 2

a a 7

ee ig nw oon e 6 0k ow he ce 20

a A-1

Opinion of the United States

Court of Appeals for the

District of Columbia Circuit......... A-1

Opinion of the Trial Court.......... A-3

Order of the Trial Court........... A-21

Order of the United States

Court of Appeals for the

District of Columbia Circuit....._.. A-22

Table of Authorities

Bethlehem Steel Corporation v. Grace

Line, Inc., 135 U.S.App.D.C. 81,

416 F.2¢ 1096 (D.C Cir. 1968) ... 2 ce 14

Boswell’s Lessee v. Otis, 9 How.

300, SOG, iS LG. G4 (ISI cw. wk caves 16

Bowser v. Collins, Y.B.Mich. 22

Edw. IV, f. 30, pl. 11, 145 Eng.

Buea, Br Ge. Gh. PGs ke hs hae ees 15

Burnham v. Supenor Court of

California, County of Marin,

QOD US. Gt Ee oi ie es ov i ees 15

Case of the Marshalsea, 10 Coke

Rep. 68b, 77a, 77 Eng.Rep.

RUT, POE i CEE 6 6 eed hw kee Oe 16

Costello v. U.S., 365 U.S. 265 (1961)........ 19

Custis v. U.S., 114 S602. 1732 OSA ow oe xs 19

Dano Resource Recovery, Inc. v.

Barry, Appeal No. 87-1304

a OE os ce ee ve a wee ee 6

Dano Resource v. District of Columbia,

566 A.2d 483 (D.C. App. 1989) ......... >, 7,9

Dano Resource Recovery. Inc. v. District

of Columbia, 620 A.2d 1346 (D.C.),

cert. denied, 114 S.Ct. 343 (1993) ....... . 6, 20

District of Columbia v. Savoy Constr.

Co., 515 A.2d 698 (D.C. 1986)

Dunn v. Dunn, 4 Paige 425 (N.Y.Ch. 1834 ....

Dynes v. Hoover, 61 U.S. 65 (18S7)....

Ellis v. Dyson, 421 U.S. 426 $43. en

Evans v. Instine, 7 Ohio 273 (1835) ....

Fay v. Noia, 372 U.S. 39] [19G3) .. 22k

Frank v. Mangum, 237 U.S. 309 e915)...

General Dynamics Corporation v.

United States, 214 Ct.C 1. 607,

558 F.2d 985 (1977)................

Gosa v. Mayden, 413 U.S. 665 (397) ....

Grumon v. Raymond, 1 Conn. 40 (1814)

Gusik v. Schilder, 340 U.S. 128 (1950) ..

Jones & Artis Construction Co. v.

District of Columbia Contract Appeals

Board, 549 A.2d 315 (D.C.App. 1988) . .

Lumbermans Mutual Casualty Co.

v. District of Columbia, 566 A.2d

480 (D.C. App. 1989) .............. 9,11, 12

.. 13, 14

v1

Natkin & Co. v. Dano Resource

Recovery. Inc.. et. al., No. 83-832-A

(E.D. VA., January 13, 1984), affd,

No. 84-1197(L), 84-1618 (4th Cir.,

Aumet iS, Fee 6s ee eee ee . 4, 10

Picquet v. Swan, 19 F.Cas. 609

(No. 11,134) (CC Mass.1828) ............. 16

Schlesinger v. Councilman, 420 U.S.

TOO UESTOD 2 ccc kta eee 16, 17

Steel v. Smith, 7 Watts & Serg. 447

7m. 1B44) onc d ieee ee 16

United States v. Utah Construction

and Mining Company, 384 U.S.

a4 (19GG) iw eve ck een tee eee 14

Other Authorities:

District of Columbia Procurement

Practices Act of 1985, D.C. Code

Se t- L1G, OC OE. 06h u ss eee ees passim

Restatement of Judgments § 7 (1942).... 17-19

Opinion Below

The opinion the United States Court of

Appeals for the District of Columbia Circuit from

which petitioner seeks appears in the Appendix

hereto at page A-1. The subsequent Order issued

by the United States Court of Appeals for the

District of Columbia Circuit denying the

petitioner’s petition for rehearing appears in the

Appendix hereto at page A-22. The Opinion of the

trial court appears-in the Appendix hereto at page

A-3. The Judgment Order of the trial court

appears in the Appendix hereto at page A-21.

Jurisdiction

The judgment of the United States Court of

Appeals for the District of Columbia Circuit was

entered on February 27, 1997. A timely petition

for rehearing was filed on March 28, 1997; an

Order denying the petition for rehearing was

entered on April 29, 1997. This petition for writ

of certiorari was filed within ninety days of April

29, 1997. This Court’s jurisdiction is invoked

under 28 U.S.C., § 1254(1).

—————e

Statement of the Case

Dano has been in a web of litigation over

the current contract since 1983. The original

issues in the underlying contract involved

relatively easy contract interpretation questions

as to whether or not the District of Columbia was

in breach of the contract in question. Dano is

still attempting to obtain justice in the matter.

The history of the matter dates back to the

seventies. By way of background, in 1979, Dano

contracted with the District of Columbia for

certain disposal of sludge and solid waste for the

respondent. In April, 1981, the respondent

terminated said contract for anticipatory breach

of contract. After the undersigned counsel first

filed suit in the United States District Court for

the District of Columbia (see Dano Resource

Recovery, Inc. v. District of Columbia, Civil Action

No. 81-02611, filed October 28, 1981) and then in

the Superior Court for the District of Columbia,

the petitioner and respondent settled said legal

action through the award of a contract in March

of 1982, that is the subject of the present action

before this Court. Over fourteen years ago, in

May of 1983, the respondent improperly

terminated the contract awarded in March, 1982

for the alleged default of Dano. The respondent

alleged that Dano had failed to remove certain

material from the site twenty-one days after said

certain material had arrived on said site.

Thereafter, Dano through the _ undersigned

counsel filed a complaint before the Government

of the District of Columbia Contract Appeals

Board on September 7, 1983, which was pending

while Dano through the undersigned counsel filed

a third-party action in the United States District

Court for the Eastern District of Virginia,

Alexandria Division, on September 19, 1983,

against the District of Columbia. The filing before

the District of Columbia Contract Appeals Board

on September 7, 1983, was a protective appeal

which was necessary to preserve petitioner’s

rights in the event the United States District

Court for the Eastern District of Virginia,

Alexandria Division, required Dano to pursue

administrative remedies. (Brief of the District of

Columbia, Respondent, in the Fourth Circuit

Natkin case, infra at page 4.) It is important to

understand that the alleged requirement to

proceed before the Government of the District of

Columbia Contract Appeals Board was solely a

creature of the contract and not otherwise

required by law. The Honorable Albert V. Bryan,

Jr., of the United States District Court for the

Eastern District of Virginia, Alexandria Division,

dismissed Dano’s action without prejudice. The

United States District Court for the Eastern

District of Virginia, Alexandria Division and

United States Court of Appeals for the Fourth

Circuit opinions, Natkin & Co. v. Dano Resource

Recovery. Inc.. et. al., No. 83-832-A (E.D. VA.,

January 13, 1984), aff'd, No. 84-1197(L), 84-1618

(4th Cir., August 15, 1985), and the parties’ briefs

clearly show that the only issue before said courts

was whether Dano had failed to exhaust its

contractually established administrative remedy

prior to seeking relief in the courts. The decisions

do not in any way address the merits of Dano’s

claims nor whether the claims in fact arise under

the contract. The United States District Court for

the Eastern District of Virginia, Alexandria

Division and United States Court of Appeals for

the Fourth Circuit merely required Dano to

exhaust its administrative remedies’ before

seeking relief in the courts.

uw

Thereafter, while the petitioner, Dano

Resource Recovery, Inc.'s appeal was still pending

after nearly four years before the Government of

the District of Columbia Contract Appeals Board,

the petitioner, Dano Resource Recovery, Inc.,

through the undersigned counsel filed an action

in the District of Columbia Superior Court

asserting a breach of the disputes clause of the

contract; the court dismissed said action without

prejudice. See Dano Resource v. District of

Columbia, 566 A.2d 483 (D.C. App. 1989),

wherein the Court held that the failure of the

Government of the District of Columbia Contract

Appeals Board to set a hearing date after nearly

four years did not establish the inadequacy of the

administrative remedy. The petitioner, Dano

Resource Recovery, Inc., through the undersigned

counsel also filed a petition for writ of mandamus

in the District of Columbia Court of Appeals

requesting that after nearly four years, the

Government of the District of Columbia Contract

Appeals Board set a date to hear the Dano’s

appeal before the Government of the District of

Columbia Contract Appeals Board. Said petition

was denied after the respondent agreed to

establish a schedule for a hearing. Dano Resource

Recovery. Inc. v. Barry, Appeal No. 87-1304

(March 4, 1988). Over seven years after Dano

had file its appeal concerning the contract that is

the subject of this action before the Government

of the District of Columbia Contract Appeals

Board, on December 10, 1990, the Government of

the District of Columbia Contract Appeals Board

issued its decision dated December 7, 1990, in

the matter. Thereafter, in 1993, the District of

Columbia Court of Appeals denied Dano’s

protective appeal of the Government of the

District of Columbia Contract Appeals Board’s

decision dated December 7, 1990. Dano Resource

Recovery, Inc. v. District of Columbia (620 A.2d

1346, cert. denied 114 S.Ct. 343 (1993)).

On March 18, 1991, Dano filed its

Complaint before the United States District Court

for the District of Columbia that is in issue in this

matter. Four years after the respondent filed its

first motion to dismiss (dated April 5, 1991), on

June 12, 1995, the respondent filed its second

motion to dismiss before the United States

District Court for the District of Columbia, which

the trial court granted.

N“

Argument

Dano respectfully requests this Supreme

Court to take a look at the fact that Dano is being

denied an opportunity to even have its case

heard. Dano recognizes the significance of the

action to date of the United States Court of

Appeals for the District of Columbia Circuit. The

United States District Court for the District of

Columbia (trial court) dismissed Dano’s action

without a hearing on the basis of Rule 12(b)(6).

Although Dano believes the trial court committed

reversible error in its order dismissing this action;

there are important constitution issues that are

the bases of Dano’s complaint filed in the trial

court that are being ignored.

It is imperative to focus on the error the

trial court committed in ruling the District of

Columbia Court of Appeals held that the District

of Columbia Procurement Practices Act (DCPPA)

applied to Dano’s breach of contract claims that

were filed in 1983. See Dano Resource v. District

of Columbia, 566 A.2d 483 (D.C. App. 1989). The

District of Columbia Court of Appeals only stated

at the time of said decision that the District of

Columbia Procurement Practices Act provided

that breach of contract claims are also subject to

administrative relief. The District of Columbia

Court of Appeals did not rule that the District of

Columbia Procurement Practices Act was

retroactive to the time that Dano had filed its

breach of contract claims in 1983. The trial court

stated on page 3 of its opinion (see A-6 and A-7 of

the Appendix hereto) that:

“In its opinion affirming the decision

of the Superior Court, the Court of

Appeals noted that the DCPPA

applied to plaintiffs contract with the

district, rejecting plaintiff’s

contention that the particular breach

alleged did not fall within the purview

of the DCPPA. Id. At485n.6.. .”

The cited authority for the above-quoted language

of the trial court, footnote numbered 6 (which is

quoted in its entirety for context), states:

“6 Appellant also resorts to

the now obsolete distinction between

disputes ‘arising under’ and those

‘relating to’ a contract in a further

attempt to avoid the administrative

route. Under prior law, breach of

contract claims were not subject to

the exhaustion doctrine if they merely

‘related to’ the agreement, while

claims ‘arising under’ a contract were

subject to exhaustion of

administrative remedies. See, e.g.,

Savoy, supra, 515 A.2d at 701-02.

Under the District of Columbia

Procurement Practices Act of 1985,

D.C. Code §§ 1-1181, et seg. (1987

Repl.), both kinds of causes are

committed to administrative relief

with limited judicial review. See

generally, Lumbermens Mutual

Casualty Co. v. District of Columbia,

D.C.C.A. No. 87-1436 slip op. (D.C.

Nov. 15, 1989), decided this day.”

Dano Resource v. District of Columbia,

supra, at 566 A.2d 485 n. 6.

Moreover, it is important to note that a decision

by the Director is required under the District of

Columbia Procurement Practices Act as noted on

page 2 of the trial court’s opinion:

“The DCPPA further provides that the

CAB is ‘the exclusive hearing tribunal

for’ any appeal by an aggrieved party

from a final decision by the Director.

D.C. Code Ann. § 1-1189.3 (1992

Repl.)”

Said referenced § 1-1189.3 clearly states

that the jurisdiction of the Contract Appeals

Board is limited to bid protests and final

decisions by the Director:

Ҥ1-1189.3 Jurisdiction of

Board.

‘abe

10

“The Board shall be the

exclusive hearing tribunal for, and

shall have jurisdiction to review and

determine de novo:

(1) Any protest of a solicitation

or award of a contract addressed to

the Board by any actual or

prospective bidder or offeror, or a

contractor who is_ aggrieved in

connection with the solicitation or

award of a contract; and

(2) Any appeal by an aggrieved

party from a final decision by the

Director which is authorized by this

chapter.”

Dano’s breach of contract claims arose from the

actions and inactions of the respondent and its

Contracting Officer’s Final Decision in 1983 that

were pending before the Government of the

District of Columbia Contract Appeals Board

(Contract Appeals Board)? in 1983. Dano’s

2 As Dano has previously emphasized, the

Honorable Albert V. Bryan, Jr., of the United States

District Court for the Eastern District of Virginia,

Alexandria Division, dismissed Dano's breach of

contract claims without prejudice. The opinions of

said Court and of the United States Court of Appeals

for the Fourth Circuit, Natkin & Co. v. Dano Resource

Recovery, Inc. et. al., No. 83-832-A (E.D. VA., January

13, 1984), affd, No. 84-1197(L), 84-1618 (4th Cir.,

August 15, 1985), and the parties’ briefs clearly show

1]

breach of contract claims were pending in the

Contract Appeals Board as a result of the prior

procedure whereby the appeal of the Contracting

Officer was directly to the Contract Appeals

Board. Accordingly, the District of Columbia

Procurement Practices Act was never applicable

to Dano’s breach of contract claims filed and

pending in 1983. In Lumbermans Mutual

Casualty Co.v. District of Columbia, 566 A.2d 480

(D.C. App. 1989), the court noted that it found

“no clear indication of whether the DCPPA was

intended to apply to contracts entered into before

the effective date of the Act.” The court only held

that the DCPPA required breach claims that

occurred after the DCPPA was enacted “to be

pursued administratively rather than in the

Superior Court” even though the parties entered

into acontract before the DCPPA was enacted.

that the only issue before said courts was whether

Dano should exhaust its contractually established

administrative remedy prior to seeking relief in the

courts for its breach of contract claims. The decisions

do not in any way address the merits of the Dano's

breach of contract claims nor whether the breach of

contract claims in fact arise under the contract; Dano

was merely required to exhaust its administrative

remedies before seeking relief in the courts for its

breach of contract claims.

12

The court did not rule that a breach of contract

claim that occurred prior to the enactment of the

DCPPA was subject to the DCPPA. In fact, the

court went on to state that: “The DCPPA became

effective on February 21, 1986, after appellant’s

[Lumbermans Mutual Casualty Co.] contracts

with the District were entered into but before any

alleged breach occurred.” Id., at 566 A.2d 482.

One of the critical facts is that Dano’s breach of

contract claims occurred prior to the enactment

of the DCPPA. The court then stated:

“The Act provides that ‘{ajll claims by

a contractor against the District

government arising under or relating

to a contract shall be in writing and

shall be submitted to the Director [of

the Department of Administrative

Services] for an informal hearing and

decision.’ Id. § 1-1188.5(a). A

contractor may appeal the decision of

the Director to the Contract Appeals

Board. . .” Id., Lumbermans at 566

A.2d 482.

Dano’s breach of contract claims were

already pending in the Contract Appeals Board

when the DCPPA was enacted and therefore had

passed the stage where a claim would be

submitted to the District of Columbia government

13

and then appealed to the Contract Appeals Board.

Note that in Jones & Artis Construction Co. v.

District of Columbia Contract Appeals Board, 549

A.2d 315, 322 (D.C.App. 1988), the District of

Columbia Court of Appeals stated that:

“

As a consequence of

incorporating the old Board as the

interim new Board under the 1985

Act, this order expanded the Board’s

jurisdiction to permit adjudication of

protest in addition to its pre-existing

jurisdiction limited to appeals. vs

(Footnote omitted.)

Thus, Dano’s breach of contract claims that

occurred in 1983 and had been filed and pending

before the Contract Appeals Board since 1983

were therefore pre-existing before the Contract

Appeals Board when the DCPPA became enacted.

Accordingly, because Dano objected to the

Contract Appeals Board having jurisdiction over

Dano’s breach of contract claims, Dano contends

that the decision from said Contract Appeals

Board is void. The District of Columbia Court of

Appeals only has jurisdiction to hear appeals

directly from the Contract Appeals Board if the

DCPPA applies to the claims. See Jones & Artis

Construction Co. v. District of Columbia Contract

ie eet BRP ate ona

14

Appeals Board, supra at 549 A.2d 317-318. Both

the trial court and the District of Columbia Court

of Appeals recognize the dichotomy between

Dano’s breach of contract claims and Dano’s

claims under the contract. See United States v.

Utah Construction and Mining Company, 384 U.S.

394, 401-402 (1966); Bethlehem Steel Corporation

v. Grace Line. Inc., 135 U.S.App.D.C. 81, 416 F.2d

1096, 1101 (D.C.Cir. 1969); General Dynamics

Corporation v. United States, 214 Ct.Cl. 607, 558

F.2d 985 (1977) for the distinction between

claims that are under the contract versus claims

that are in breach of the contract. Hence, the

Contract Appeals Board did not have subject

matter jurisdiction to hear Dano’s breach of

contract claims. Accordingly, the judgment of the

Contract Appeals Board is void as to Dano’s

breach of contract claims.

The law is clear that a void judgment is not

subject to issue preclusion. Because Dano

objected to the Contract Appeals Board’s

jurisdiction of Dano’s breach of contract claims,

the decision of the Contract Appeals Board is void

as to Dano’s claims of breach of contract. In

1857, 140 years ago, in Dynes v. Hoover, 61 U.S.

15

65, 81 (1857), this Supreme Court of the United

States stated:

“Persons, then, belonging to the

army and the navy are not subject to

illegal or irresponsible courts martial

. In such cases, everything which

may be done is void--not voidable,

but void; and civil courts have never

failed, upon a proper suit, to give a

> party redress, who has been injured

by a void process or void judgment.

In England, it has been done by the

civil courts, ever since the passage of

the 1 Mutiny act of William and Mary,

ch. 5, 3d April, 1689.”

Contrary to the above-quoted language of 140

years ago from this Supreme Court of the United

States, the courts have failed to redress Dano’s

breach of contract claims to date.

In Burnham v. Superior Court of California,

County of Marin, 495 U.S. 604, 608-609, 110

S.Ct. 2105, 2109 (1990), this Supreme Court

restated that a judgment from a court without

jurisdiction is void:

“The proposition that the judgment of

a court lacking jurisdiction is void

traces back to the English Year

Books, see Bowser v._ Collins,

Y.B.Mich. 22 Edw. IV, f. 30, pl. 11,

145 Eng.Rep. 97 (Ex. Ch. 1482), and

16

was made settled law by Lord Coke in

Case of the Marshalsea, 10 Coke Rep.

68b, 77a, 77 Eng.Rep. 1027, 1041

(K.B. 1612). Traditionally that

proposition was embodied in the

phrase coram non judice, [495 U.S.

609] ‘before a person not a judge’--

meaning, in effect, that the

proceeding in question was not a

judicial proceeding because lawful

judicial authority was not present,

-and could therefore not yield a

judgment. American courts

invalidated, or denied recognition to,

judgments that _—-violated this

common-law principle long before the

Fourteenth Amendment was adopted.

See, e.g., Grumon v. Raymond, 1

Conn. 40 (1814); Picquet v. Swan, 19

F.Cas. 609 (No. 11,134) (CC

Mass.1828); Dunn v. Dunn, 4 Paige

425 (N.Y.Ch. 1834); Evans v. Instine,

7 Ohio 273 (1835); Steel v. Smith, 7

Watts & Serg. 447 (Pa.1844);

Boswell’s Lessee v. Otis, 9 How. 336,

350, 13 L.Ed. 164 (1850).”

In Schlesinger v. Councilman, 420 U.S. 738, 746-

747, 95 S.Ct. 1300, 1307 (1975), this Supreme

Court stated that void judgments are subject to

collateral attack:

ila iti ani Beli taste tice LO Adela athe WU DES ale.

“But this general rule carries with it

its own qualification--that the court-

martial’s acts be ‘within the scope of

its jurisdiction and duty.’ Collateral

17

attack seeks, as a necessary incident

to relief otherwise within the court’s

power to grant, a declaration that a

judgment is void. (Footnote omitted)

A judgment, however, is not rendered

void merely by error, nor does the

granting of collateral relief necessarily

mean that the judgment is invalid for

all purposes. (Footnote omitted) On

the contrary, it means only that for

purposes of the matter at hand the

judgment must be deemed without

res judicata effect: because of lack of

jurisdiction or some other equally

fundamental defect, the judgment

neither justifies nor bars relief from

its consequences.

“But, as the Court has recognized in

the past, there is no _ necessary

inconsistency between this and the

standard rule that void judgments,

although final for purposes of direct

review, may be impeached collaterally

in suits otherwise within a court's

subject-matter jurisdiction. (Footnote

omitted) In Gusik v. Schilder, 340

U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146

(1950)”

In Gosa v. Mayden, 413 U.S. 665, 702, fn. 7

(1973) this Supreme Court stated:

“Restatement of Judgments § 7

comment b, pp. 42--43 (1942):

—? Tee ee

ay

“There are many

situations in which a

court lacks competency

to render a judgment.

Thus, although a State

has jurisdiction to grant

a divorce of parties

domiciled within’ the

State, a decree of divorce

rendered by a_ court

which is not empowered

to entertain suits for

divorce is void. Similarly,

a judgment rendered by a

justice of the peace is

void if under the law of

the State such justices

are not empowered to

deal with the subject

matter of the action; as,

for example, where the

action is one for tort and

justices of the peace are

given no power except in

actions of contract. So

also, where a court is

given power to deal with

actions involving no more

than a designated

amount, the statute

limiting the amount is

ordinarily construed not

merely to make

erroneous a judgment

rendered by such a court

in excess of its power,

19

but to make such

judgment void.”’

Also see Ellis v. Dyson, 421 U.S. 426, 441, 95

S.Ct. 1691, 1699, n.6 (1975) (void judgments may

be collaterally impeached); Custis v. U.S., 114

S.Ct. 1732, 1737 (1994) (conviction pronounced

by a court without jurisdiction is void); Costello v.

U.S., 365 U.S. 265, 285, 81 S.Ct. 534, 544 (1961)

(lack of jurisdiction over subject matter renders a

judgment void and subject to collateral attack);

and, Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct.

822, 840-841 (1963) (void judgments may be

collaterally impeached). In fact, in Fay v. Noia,

372 U.S. 391, 423, 83 S.Ct. 822, 840 (1963), this

Supreme Court also stated that an appeal of a

void decision does not restore said void decision:

“As put by Mr. Justice Holmes in his

dissenting opinion in Frank v.

Mangum, supra, 237 U.S., at 348, 35

S.Ct., at 595: If the petition discloses

facts that amount to a loss of

jurisdiction in the trial’ court,

jurisdiction could not be restored by

any decision above.”

Hence, Dano’s appeal of the void decision of the

Contract Appeals Board to the District of

Columbia Court of Appeals did not restore said

Wl beaded? ROBO fee

ween rT ot rt CG nee iy) eh a ees bs dita adios

20

void decision of the Contract Appeals Board as to

Dano’s breach of contract claims. Once the

decision became void, it remained void.

The trial court’s decision by the Honorable

Stanley S. Harris is built upon the erroneous

finding that Dano is precluded from going forward

on Dano’s breach of contract claims. The fact

that the District of Columbia Court of Appeals

denied Dano’s motion to dismiss its protective

appeal does not resurrect the void judgment of

the Contract Appeals Board as to Dano’s breach

of contract claims. See Dano Resource Recovery.

Inc. v. District of Columbia, 620 A.2d 1346 (D.C.),

cert. denied, 114 S.Ct. 343 (1993).

Conclusion

It is completely unconscionable that the

respondent required Dano to invest millions of

dollars in building a plant for the respondent on

respondent’s property and that respondent has

been in material breach of the contract since

1983. The Contract Appeals Board was only a

creature of the contract between the parties;

Dano objected to the jurisdiction of the Contract

21

Appeals Board as to its breach of contract claims

and only proceeded therein as a _ protective

measure. With all due respect, the denial of this

petition will condone the actions of the

respondent. Thus, Dano Resource Recovery, Inc.

respectfully requests that this Honorable

Supreme Court grant the petition for writ of

certiorari to the United States Court of Appeals

for the District of Columbia Circuit.

Respectfully submitted,

Peter Paul Mitrano

6 Stevens Road

Hanover, New Hampshire 03755

(603) 643-0456

Attorney for Petitioner

Dano Resource Recovery, Inc.

July 28, 1997

APPENDIX

A-1

United States Court of Appeals

For The District of Columbia Circuit

No. 96-7100

DANO RESOURCE

RECOVERY, INC.,

Appellant

v.

DISTRICT OF COLUMBIA,

Appellee

UNITED STATES COURT

OF APPEALS FOR THE

DISTRICT OF COLUMBIA

CIRCUIT FILED FEB 27

1997 CLERK

BEFORE: Ginsburg, Sentelle, and

Henderson, Circuit Judges

ORDER

Upon consideration of the motion for

summary affirmance and the response thereto, it

is

ORDERED the motion for summary

affirmance be granted substantially for the

sibel SON Ves atk RNa Cr ch A

ES RR I Pt ai AA PERDANA IE fides Paces s ‘eas tice,

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reasons stated by the district court in its order

filed April 25, 1996. The merits of the parties’

positions are so clear as to warrant summary

action. See Taxpayers Watchdog, Inc. v. Stanley,

819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam);

Walker v. Washington, 627 F.2d 541, 545 (D.C.

Cir.) (per curiam), cert. denied, 449 U.S. 994

(1980).

The Clerk is directed to withhold issuance

of the mandate herein until seven days after

disposition of any timely petition for rehearing.

See D.C. Cir. Rule 41.

Per Curiam

/s/

/s/

/s/

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANO RESOURCE

RECOVERY, INC.,

)

Plaintiff, )

Vv. ) Civil Action No.

; ) 91-571 SSH

)

DISTRICT OF COLUMBIA, ) FILED

) APR 25 1996

Defendant. ) Clerk, U.S. District

Court District of

Columbia

OPINION

~ Before the Court are defendant’s motion to

dismiss and plaintiff's opposition thereto. Upon

consideration of the entire record, defendant’s

motion to dismiss is granted.

BACKGROUND

Because the past history of this case dictates its

outcome here, that history is reviewed in some

detail. On March 3, 1982, plaintiff Dano

Resource Recovery, Inc., (“Dano”) entered into a

contract with the District of Columbia to build

and operate a sludge and solid waste composting

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plant at the District’s Blue Plains waste treatment

facility. A standard dispute clause in the contract

provided that any dispute “arising under” the

contract would be decided by the Contracting

Officer of the District of Columbia, and that a

contractor could appeal the decision of the

Contracting Officer within 30 days to the Contract

Appeals Board (“CAB”). Pl.’s Compl., Ex. 1, ps.

16-17. Under the terms of the contract, the

decision of the CAB would be “final and

conclusive . . . subject to . . . review as may be

provided by law.” Id.

On April 11, 1983, the District notified

plaintiff of several concerns it had regarding

plaintiffs failure to perform in accordance with

certain contract specifications. On May 9, 1983,

after plaintiff had failed to remedy most or all of

its lapses, the District declared plaintiff to be in

default and terminated the contract. Plaintiff

appealed the District’s decision to the Contracting

Officer, and in September 1983, when its appeal

to the Contracting Officer proved unsuccessful,

plaintiff appealed the Contracting Officer’s

decision to the CAB.

—A-5

Relevant Procedural History

Between 1983, when plaintiff appealed to the

CAB, and 1990, when the CAB issued a lengthy

determination upholding the decision of the

Contracting Officer, several pertinent

developments occurred. First, in 1985, the

District of Columbia City Council passed the

District of Columbia Procurement Practices Act

(“DCPPA”), D.C. Code Ann. § 1-1181.1 et. seq.

(1992 Repl. & 1995 Supp.). The DCPPA provides

that “[ajll claims by a contractor against the

District government arising under or relating to” a

contract shall be submitted to the Director of the

Department of Administrative -Services

(hereinafter “Director”) for an informal hearing

and decision.! D.C. Code Ann. § 1-1188.5/(a).

The DCPPA further provides that the CAB is “the

exclusive hearing tribunal for” any appeal by an

aggrieved party from a final decision by the

Director. D.C. Code Ann. § 1-1189.3 (1992 Repl.)

In essence, the DCPPA did away with previous

l Pursuant to a Mayor's Order of March 2,

1984, the Director of Administrative Services is the

central procurement official of the city. See D.C. Code

Ann. §§ 1-1181.7(22), 1-1182.3.

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distinctions between claims “arising under” a

contract and claims “relating to” the contract.

See District of Columbia v. Savoy Constr. Co.,

515 A.2d 698 (D.C. 1986) (pre-DCPPA case,

holding that provision of dispute clause for

resolution of “any dispute arising under the

contract” by the Contracting Officer, with right of

appeal to the CAB, did not apply to claims for

breach of contract).

On July 6, 1987, while plaintiff's appeal to

the CAB was pending, plaintiff filed an action for

breach of contract against the District in the

Superior Court of the District of Columbia. The

Superior Court judge dismissed plaintiffs action

because plaintiff had failed to exhaust its

available administrative remedies, and on

November I5, 1989, the District of Columbia

Court of Appeals affirmed the dismissal. Dano

Resource Recovery v. District of Columbia, 566

A.2d 483, 487 n.8 (D.C. 1989) (Dano ])?. In its

2 Plaintiff also filed a third-party action

against the District in 1984, in the federal district

court for the Eastern District of Virginia, where

plaintiff was a defendant in a suit brought by a

subcontractor. The district court dismissed plaintiff's

third-party claim against the District, finding that

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opinion affirming the decision of the Superior

Court, the Court of Appeals noted that the DCPPA

applied to plaintiffs contract with the District,

rejecting plaintiffs contention that the particular

breach alleged did not fall within the purview of

the DCPPA. Id. at 485 n.6; see also Lumbermens

Mut. Casualty Co. v. District of Columbia, 566

A.2d 480 (D.C. 1989) (holding that the DCPPA

applied to contracts entered into prior to the date

of enactment of the DCPPA).3

On December 7, 1990, after years of

discovery and following an administrative hearing

which consumed 84 days the CAB issued a 73-

page decision upholding the contract termination,

plaintiff had not exhausted its administrative remedies

with respect to the District, and the United States

Court of Appeals for the Fourth Circuit affirmed the

lower court’s dismissal of plaintiff's third-party action.

See Dano I, 566 A.2d at 487 n.8.

3 After it filed its notice of appeal from the

dismissal, but before the Court of Appeals had heard

argument, plaintiff filed a petition for writ of

mandamus in the Court of Appeals, requesting that

the Court of Appeals order the CAB to set a date to

hear plaintiffs case. See Dano I, 566 A.2d at 484 n.4.

“After the District filed a memorandum explaining the

procedures that were being followed,” the Court of

Appeals denied plaintiffs petition. Id.

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sustaining the District’s claim for certain costs of

equipment removal and_ site clean-up, but

awarding Dano approximately $152,000

improperly withheld by the District. On January

9, 1991, plaintiff appealed the decision of the CAB

to the District of Columbia Court of Appeals,

pursuant to the DCPPA. See D.C. Code Ann. § 1-

1189.5(a).

In its notice of appeal from the CAB

decision, and in its concurrently-filed “Petition for

Review” of the CAB decision, plaintiff stated that

it was filing an appeal “solely as a protective

appeal,” and that it “contend[ed] that the [DCPPA]

is not applicable to this matter.” Suppl. Mem. in

Supp. of Def's [First] Mot. to Dismiss, Attachs. l,

2. On July 19, 1991, the District of Columbia

Court of Appeals issued an Order requiring the

parties to brief the issue whether the DCPPA

applied to plaintiff's appeal.

In response to that Order, on July 31,

1991, Dano filed a “motion to dismiss” its appeal.

Plaintiff argued in its brief that the DCPPA

conflicted with the District of Columbia Self-

Government and Governmental Reorganization

Act, D.C. Code Ann. §§ 1-201 to 1-299.7 (1992

a

A-9

Repl.) (“Self-Governnent Act”), because it allegedly

altered the jurisdiction of the District of Columbia

courts.* Therefore, plaintiff argued, the DCPPA

was unconstitutional. See Def.'s [Second] Mot. To

Dismiss, Ex. B, at 6-12. Dano also argued in its

motion to dismiss its appeal that the CAB “was

not the proper forum to hear Dano’s breach of

contract claims,” id. at 14, and that it “was

entitled to a trial de novo” on its breach of

contract claims, id. at 18.

Defendant filed an opposition to Dano’s

motion to dismiss its appeal responding to Dano’s

constitutional claims and its claims that the CAB

lacked jurisdiction to hear its appeal from the

adverse decision of the Contracting Officer. See

Def.’s [Second] Mot. To Dismiss, Ex. C. On

January 13, 1992, the Court of Appeals denied

Dano's motion to dismiss its appeal. On

February 23, 1993, the Court of Appeals issued

4 The Self-Government Act provides that

the Council of the District of Columbia has no

authority to, inter alia, “[e]nact any act, resolution, or

rule with respect to any provision of Title 11 (relating

to organization and jurisdiction of District of Columbia

courts).” D.C. Code Ann. § 1-233(a)(4) (1992 Repl.)

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an opinion affirming the decision of the CAB.

Dano Resource Recovery, Inc. Vv. District of

Columbia, 620 A.2d 1346 (D.C.), cert. denied. 114

S.Ct. 343 (1993) (“Dano II”). Plaintiff petitioned

the Supreme Court for a writ of certiorari to the

Court of Appeals. Plaintiff’s petition for writ of

certiorari presented the following question:

Whether the enactment by the

District of Columbia City Council of

the Procurement Practices Act of

1985, which purports to grant

exclusive jurisdiction over disputes

between contractors and the District

of Columbia to the District of

Columbia Contract Appeals Board,

and which thereby deprives the

District of Columbia trial courts of

jurisdiction over breach of contract

claims brought by contractors against

the District, was beyond the authority

delegated to the Council by the

District of Columbia Home Rule Act.

Def.’s [Second] Mot. To Dismiss, at 4. The

Supreme Court denied plaintiff's petition for a

writ of certiorari on October 18, 1993. See Dano

Resource Recovery. Inc. v. District_of Columbia,

114 S.Ct. 343 (1993).

The Current Action

On March 18, 1991, after plaintiff had

appealed the CAB decision to the District of

Columbia Court of Appeal, but before the Court of

Appeals had rendered its decision, plaintiff filed

this action. This Court stayed the case pending

resolution of plaintiffs appeal in the District of

Columbia Court of Appeals. Dano Resource

Recovery, Inc. v. District of Columbia, Civ. No. 91-

571 SSH (D.D.C. June 30, 1992). Although

plaintiff thereafter informed this Court of the

decisions of the Court of Appeals and of the

Supreme Court, neither party moved the Court to

lift the stay it had imposed in 1992. The Court

lifted the stay sua sponte on April 5, 1995. On

June 12, 1995, defendant filed a motion to

dismiss plaintiffs complaint; on June 26, 1995,

plaintiff filed an opposition. Most of plaintiff's

claims are barred by the doctrine of issue

preclusion, and the rest of plaintiffs claims are

devoid of merit. Accordingly, the Court grants

defendant’s motion to dismiss.

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DISCUSSION

Plaintiffs complaint contains seven counts.

In Count I, plaintiff requests the Court to issue a

declaratory judgment that the DCPPA conflicts

with the Self-Government Act, because it allegedly

alters the jurisdiction of the District of Columbia

courts. In Count Il, plaintiff claims that the

District breached its contract with plaintiff and

requests “a trial de novo for its breach of contract

claims” and “at least” $70 million in damages. In

Count II, plaintiff alleges that the findings of the

CAB in its 73 page decision were “fraudulent,

arbitrary, capricious, SO grossly erroneous as to

necessarily imply bad faith, or were not supported

by substantial evidence,” and plaintiff requests de

novo review of the decision of the CAB.

Count IV consists of a request for monies

allegedly owed plaintiff by the District. Count V

alleges that the District violated plaintiff's due

process rights, because the CAB did not set a

hearing date on plaintiff's appeal “from at least

the period of time between September 9, 1986

and early 1988,” and because the CAB's decision

did not issue until 1990. Count VI alleges that

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the District violated plaintiffs rights under the

Fourteenth Amendment and Count VI alleges that

the DCPPA unconstitutionally impaired plaintiffs

contract with the city. The Court will address

each of these Counts in order.

Count I: Plaintiff's Challenge to the Self-

Government Act

Plaintiffs contention that the DCPPA

violates the Self-Government Act is barred by the

doctrine of issue preclusion, or _ collateral

estoppel. “The doctrine of issue preclusion holds

that once an issue is actually and necessarily

determined by a court of competent jurisdiction

that determination is conclusive against a party

to the prior proceeding in a subsequent suit

based on a different claim.” Synanon Church v.

United States, 820 F.2d 421 (D.C. Cir. 1987)

(citing, inter alia, Montana v. United States, 440

U.S. 147, 153, 99 S.Ct. 970, 973 (1979)). Not

only did the District of Columbia Court of Appeals

in Dano I hold that the DCPPA applied to

plaintiffs claims, but in Dano II the parties fully

briefed the same constitutional issue plaintiff

persists in asserting here -- namely, that the Self-

Government Act renders the DCPPA

Se eT eee sata .

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unconstitutional. The Court of Appeals in Dano Il

rejected this contention and went on to affirm the

decision of the CAB. In so doing, it rendered its

decision on plaintiff's constitutional arguments

“necessary” to support the judgment in Dano Il.

See Synanon Church, 820 F.2d at 424. Plaintiff's

petition for a writ of certiorari asserted the same

constitutional question raised, briefed, and

resolved in Dano Il, and the Supreme Court

denied plaintiff’s petition. This Court will not

revisit such well-trodden ground. See Clark-

Cowlitz Joint Operating Agency V.- FERC, 826

F.2d 1074, 1079 (D.C. Cir. 1987) (noting that

“one who has actually litigated an issue should

not be allowed to relitigate it’) (quoting

Restatement (Second) of Judgments at 6 (1982)).

Counts II, Ill, and IV: Plaintiff's “Appeal” from the

CAB

Plaintiff attacks the decision of the CAB on

two different angles in Counts II and III of its

complaint. In Count Il, plaintiff requests the

Court to ignore the decision of the CAB (and

apparently that of the Court of Appeals affirming

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the CAB) and hold a trial de novo on plaintiff's

breach of contract claims.> In Count III, in

contrast, plaintiff requests the Court to review the

decision of the CAB (and apparently to ignore the

decision of the Court of Appeals) and find the

CAB decision, inter alia, “fraudulent” and

unsupported by the facts.

The Court will neither conduct a de novo

review of plaintiffs CAB appeal nor review it

according to the standard employed by the

District of Columbia Court of Appeals in plaintiffs

first (and proper) appeal to that court. Both

Counts II and III are precluded by the ruling in

the Court of Appeals in Dano Il. Plaintiff fully

briefed both its contention that the CAB was not

the proper forum for its appeal and its contention

> The Court of Appeals had not issued its

decision in Dano II when plaintiff filed its action in

this Court. In plaintiffs opposition to defendant's

second (1995) motion to dismiss, however, plaintiff

argues that the decision of the Court of Appeals “may

be void,” because the Court of Appeals did not have

“competent jurisdiction” to hear the appeal. This

argument is without merit. Because the DCPPA

applies to plaintiffs contract claims, the Court of

Appeals was the proper forum for plaintiffs appeal

from the CAB and therefore was a court of “competent

jurisdiction” for the purposes of its appeal.

voncdiatini

PE TRO ae nT ire Meme a

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that it was entitled to a trial de novo on its

contract claim, in its motion to dismiss its appeal

in Dano Il. The Court of Appeals denied plaintiff’s

motion to dismiss its appeal and went on to issue

an opinion upholding the decision of the CAB,

implicitly rejecting both plaintiffs request for a

trial de novo and its assertion that the CAB

lacked jurisdiction to hear plaintiff's appeal in the

first place.

The Court of Appeals has previously held that

plaintiffs contract with the District is governed by

the DCPPA. See Dano 1, 566 A.2d at 485 n.5; see

also Lumbermens Mutual, 566 A.2d at 480.

Because the contract is governed by the DCPPA,

plaintiff must follow the avenues of redress

prescribed in the DCPPA; that is, plaintiff must

take an appeal from the Director (now the

Contracting Officer) to the CAB, and subsequently

to the District of Columbia Court of Appeals. D.C.

Code Ann. §§ 11189.4-5(a). Plaintiff availed itself

of this route. When plaintiff's appeals proved

unsuccessful plaintiff additionally sought a writ of

certiorari from the Supreme Court of the United

States, and the Supreme Court denied plaintiff’s

petition. In effect, plaintiff is now attempting to

attack collaterally in this Court the series of well-

reasoned decisions from the CAB and the District

of Columbia Court of Appeals. Plaintiff's attempt

to relitigate its case is not grounded in reason or

law, and it therefore fails.

Count IV of plaintiffs complaint consists

only of a request for money allegedly owed

plaintiff by the District, though the information

plaintiff presents on this claim is far from

adequate. From what the Court can discern after

terminating its contract with plaintiff the District

withheld approximately $476,000 in funds due

and owing Dano, to recoup the cost of removing

Dano’s equipment and of disposing of almost

40,000 tons of compost material. The CAB found

that the District was entitled to _ receive

$323,767.00, and that the District owed Dano

$152,475, compounded at 4% interest from the

date the claim was received by the District. See

Suppl. Mem. in Supp. Of Def.'s [First] Mot. To

Dismiss, Attach. 3, at 72 (CAB decision). The

Internal Revenue _ Service .S”) apparently

asserted a tax lien against the joint venture of

which Dano was a part. Because the Court

herein disposes of any claims which could

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conceivably be termed “federal questions,” and

because Count IV presents (if anything) a

question regarding enforcement of the CAB

decision and the obligations of the District visa-

vis Dano, Count IV presents no cognizable federal

question. Nor will the Court assert supplemental

jurisdiction over this issue, if a justiciable issue it

is.

Counts V, VI, and VII: Plaintiff's Constitutional

Claims

Plaintiff's claims in Count V are barred by

the doctrines of issue preclusion and claim

preclusion. Plaintiffs first allegation -- that the

CAB violated its due process rights by taking

seven years to issue a decision -- was squarely

determined in Dano _l. 566 A.2d at 486-87

(holding that Dano had failed to show that the

CAB appeal process was inadequate or that resort

to the CAB was otherwise futile). Plaintiff's

suggestion that the low interest rate awarded it by

the CAB was a “taking of property” is precluded

under the doctrine of claim preclusion. S€e

Clark-Cowlitz, 826 F.2d at 1079 (“a party who

once has had a chance to litigate a claim before

an appropriate tribunal usually ought not to have

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another chance to do so”) (quoting Restatement

(Second) of Judgments at 6 (1982)). Plaintiff had

ample time and opportunity to contest this aspect

of the CAB's decision before the Court of Appeals,

and this Court will not entertain its untimely

challenge

Plaintiffs claim in Count VI is meritless,

because the Fourteenth Amendment does not

apply to the District of Columbia. See Bolling v.

Sharpe, 347 U.S. 497 (1954). Finally, plaintiff's

claim in Count VII that the DCPPA impaired its

contractual obligations was argued (and implicitly

rejected) in plaintiff's motion to dismiss its appeal

in the D.C. Court of Appeals. See Def.'s Mot. To

Dismiss, Attach. B, at 13-14. Accordingly, this

claim, too, is barred.

CONCLUSION

Had the Court an inkling in 1992, when it

issued its Order staying this case, that plaintiff

would persist in asserting claims clearly barred or

of no merit following the resolution of its appeal to

the District of Columbia Court of Appeals, the

Court would have dismissed this action without

——— CLL!

WER ed

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prejudice. Now, after years of litigation,

thousands of pages of transcripts and discovery,

and nearly a hundred pages of analysis from the

CAB and the Court of Appeals upholding the

District's decision to terminate its ill-fated

contract with plaintiff, plaintiff has the temerity to

suggest not only that all of its prior claims are

still justiciable by this Court, but that discovery

should be conducted as well. Pl.'s Opp. to Def.'s

[Second] Mot. To Dismiss at l. Plaintiff is in

error. Defendant's motion to dismiss is granted.

An appropriate Order accompanies this Opinion.

/s/

Stanley S. Harris

United States District Judge

Date: APR 25 1996

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANO RESOURCE

RECOVERY, INC.,

)

)

Plaintiff, )

Vv. ) Civil Action No.

) 91-571 SSH

)

DISTRICT OF COLUMBIA, ) FILED

) APR 25 1996

Defendant. ) Clerk, U.S. District

Court District of

Columbia

OPINION

For the reasons stated in the accompanying

Opinion, it hereby is

ORDERED, that defendant’s motion to

dismiss is granted.

SO ORDERED.

/s/

Stanley S. Harris

United States District Judge

Date: APR 25 1996

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United States Court of Appeals

For The District of Columbia Circuit

No. 96-7 100

DANO RESOURCE

RECOVERY, INC.,

Appellant

UNITED STATES COURT OF

v. APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

FILED APR 29 1997 CLERK

DISTRICT OF COLUMBIA,

Appellee

BEFORE: Ginsburg, Sentelle, and

Henderson, Circuit Judges

ORDER

Upon consideration of appellant’s petition

for rehearing filed March 28, 1997, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Robert A. Bonner

Deputy Clerk