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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 868

## Text

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,

A-2

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

A-4

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

A-13

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

A-15

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

A-16

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

A-18

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

A-19

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

A-20

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

A-21

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

A-22

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1208%3A1. Public record. Not legal advice.