PENROSE PARK ASSOCIATES, L.P. v. USA

Filing 8

REPORTED OPINION granting 5 Motion to Dismiss - Rule 12(b)(1). The Clerk's office is directed to enter final judgment DISMISSING plaintiff's complaint, for lack of subject-matter jurisdiction, without prejudice. Signed by Judge Patricia E. Campbell-Smith. (TQ) Service on parties made.

In the United States Court of Federal Claims
No. 19-1346C
(E-Filed: March 23, 2020)
PENROSE PARK ASSOCIATES, LP,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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Motion to Dismiss; Lack of SubjectMatter Jurisdiction; RCFC 12(b)(1).

Philip L. Hinerman, Philadelphia, PA, for plaintiff. Ronni Two, of counsel.
Stephen C. Tosini, Senior Trial Attorney, with whom were Joseph H. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Franklin E. White, Jr., Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant.
OPINION
CAMPBELL-SMITH, Judge.
Before the court is defendant’s motion to dismiss plaintiff’s complaint for lack of
subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States
Court of Federal Claims (RCFC). See ECF No. 5. In evaluating defendant’s motion, the
court considered: (1) plaintiff’s complaint, ECF No. 1; (3) defendant’s motion to
dismiss, ECF No. 5; (4) plaintiff’s response, ECF No. 6; and (5) defendant’s reply, ECF
No. 7. In its response to defendant’s motion to dismiss, plaintiff requested that the court
hold a hearing before deciding the motion. See ECF No. 6 at 8. The court found the
parties’ written submissions sufficient to assist the court in deciding the issues raised in
defendant’s motion, and therefore, denies plaintiff’s request for oral argument as
unnecessary. For the following reasons, defendant’s motion to dismiss, pursuant to
RCFC 12(b)(1), is GRANTED.

I.

Background

This case involves remediation efforts, ordered by the Pennsylvania Department of
Environmental Protection (PDEP), at a property called Siena Place located in
Philadelphia, Pennsylvania. See ECF No. 1 at 2-3. The Defense Logistics Agency
(DLA), an agency within the United States Department of Defense (DOD), “operated a
manufacturing and supply depot for [the] United States military for more than 100 years
on the site.” Id. at 3. In December 1999, the PDEP ordered the DLA to begin
remediation efforts to address the effects of a “naphthalene plume that developed in the
soil due to the improper disposal of petroleum-based products.” Id.
Plaintiff acquired the subject property in September 2007 from the Philadelphia
Housing Authority, and granted the DLA an easement to allow the DLA to continue
remediation efforts. Id. The easement required the DLA to “‘fund the cost for the
installation of vapor barriers underneath to-be-constructed residential or commercial
buildings on the [p]roperty.’” Id. (quoting the easement language). The easement also
specified that the contractors conducting the work be “fully-insured, licensed and
responsible,” among other requirements. Id. at 3-4. In addition, the easement relieved
plaintiff of any liability related to the work, and reflected an agreement between plaintiff
and DLA to litigate claims arising out of the easement in the Eastern District of
Pennsylvania. See id. at 4.
Following various alleged breaches on the DLA’s part, plaintiff filed suit in the
Eastern District of Pennsylvania. See id. Plaintiff alleged seven counts against the DLA
in its district court complaint, all of which the court dismissed for lack of subject-matter
jurisdiction on August 1, 2018. See Penrose Park Assocs., L.P. v. United States through
Def. Logistics Agency, Case No. 18-0730, 2018 WL 3642418, *1 (E.D. Pa. Aug. 1,
2018) (reciting the seven claims included in plaintiff’s district court complaint). The
district court held that this court has exclusive jurisdiction over plaintiff’s four contract
claims, see id. at *3, and dismissed the remaining counts on the basis that plaintiff had
failed to exhaust administrative remedies under the Federal Tort Claims Act, see id. at *5.
Plaintiff alleges that it “gave notice of a claim to the Department of the Army on
September 26, 2018,” but “[b]ecause the United States failed to respond to the claim, the
claims were deemed denied on March 26, 2019.” ECF No. 1 at 2.
On September 4, 2019, plaintiff filed its complaint with this court alleging that the
DLA injured plaintiff through its “failure to properly remediate the site pursuant to orders
from the Pennsylvania Department of Environmental Protection and its negligent
retention and supervision of a contractor.” Id. “Because DLA’s negligence caused injury
or harm to its property, [plaintiff] now seeks money damages.” Id. Plaintiff presents its
case in seven counts, which are substantially similar to the seven counts in its complaint
filed with the district court, including: (1) breach of contract, id. at 6-7; (2) breach of
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express warranty, id. at 7-8; (3) breach of implied warranty of merchantability, id. at 8-9;
(4) breach of implied warranty of fitness for a particular purpose, id. at 9-10; (5)
negligent retention of a contractor, id. at 10-11; (6) negligent supervision of a contractor,
id. at 12-13; and (7) failure to properly remediate the Siena Place property under the
Hazardous Sites Cleanup Act of 1988, a Pennsylvania state statute, id. at 13-14.
Compare Penrose Park, 2018 WL 3642418 at *1.
In its motion to dismiss, defendant argues that the court lacks subject-matter
jurisdiction over the entirety of plaintiff’s complaint. Specifically, defendant argues that
plaintiff’s first four counts are “subject to the Contract Disputes Act (CDA), 41 U.S.C. §
7101, et seq.,” but contends that plaintiff has “fail[ed] to satisfy the jurisdictional
certification precondition to suit” required for claims made pursuant to the CDA. Id.
And with regard to the remaining three counts, defendant claims that the court lacks
jurisdiction because the counts are “claims sounding in tort.” Id.
II.

Legal Standards

Pursuant to the Tucker Act, the court has jurisdiction to consider “any claim
against the United States founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or implied contract with
the United States, or for liquidated or unliquidated damages in cases not sounding in
tort.” 28 U.S.C. § 1491(a)(1) (2012). To invoke the court’s jurisdiction, plaintiffs must
show that their claims are based upon the Constitution, a statute, or a regulation that “can
fairly be interpreted as mandating compensation by the Federal Government for the
damages sustained.” United States v. Mitchell, 463 U.S. 206, 216-17 (1983) (quoting
United States v. Testan, 424 U.S. 392, 400 (1976)). See also Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005) (stating that to fall within the scope of the Tucker Act
“a plaintiff must identify a separate source of substantive law that creates the right to
money damages”) (citations omitted).
Plaintiff bears the burden of establishing this court’s subject-matter jurisdiction by
a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988). To determine whether plaintiff has carried this burden,
the court accepts “as true all undisputed facts asserted in the plaintiff’s complaint and
draw[s] all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v.
United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United States, 60
F.3d 795, 797 (Fed. Cir. 1995)). If the court determines that it lacks subject-matter
jurisdiction, it must dismiss the complaint. See RCFC 12(h)(3).

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III.

Analysis
A.

The Court Lacks Jurisdiction over Plaintiff’s CDA Claims

The first four counts of plaintiff’s complaint allege: breach of contract (Count I),
breach of express warranty (Count II), breach of implied warranty of merchantability
(Count III), and breach of implied warranty of fitness for a particular purpose (Count IV).
See ECF No. 1 at 6-10. As an initial matter, the parties agree that plaintiff’s first four
counts are asserted pursuant to the CDA. See ECF No. 5 at 6 (defendant stating that
“[t]here also can be no dispute” that this case arises under the CDA); ECF No. 6 at 5-7
(plaintiff invoking the court’s CDA jurisdiction with regard to the first four counts of the
complaint, and arguing that it complied with the CDA requirements).
The parties also agree on the applicable standards for evaluating the court’s
jurisdiction over CDA claims, and cite the same authorities in support thereof. See ECF
No. 5 at 4-5; ECF No. 6 at 5. “A valid claim with the contracting officer . . . is necessary
for this Court to exercise jurisdiction under the CDA.” CSX Transp., Inc. v. United
States, 123 Fed. Cl. 244, 251 (2015); see also Northrop Grumman Computing Sys., Inc.
v. United States, 709 F.3d 1107, 1111-12 (Fed. Cir. 2013) (“A prerequisite for
jurisdiction of the Court of Federal Claims over a CDA claim is a final decision by a
contracting officer on a valid claim.”) (emphasis in original). To be valid, a claim must
include: “(1) a written demand, (2) seeking, as a matter of right, (3) the payment of
money in a sum certain.” Northop Grumman, 709 F.3d at 1112 (citation omitted). A
valid claim must also include a certification pursuant to 41 U.S.C. § 7103(b)(1), attesting
that: “(A) the claim is made in good faith; (B) the supporting data are accurate and
complete to the best of the contractor’s knowledge and belief; (C) the amount requested
accurately reflects the contract adjustment for which the contractor believes the Federal
Government is liable; and (D) the certifier is authorized to certify the claim on behalf of
the contractor.” 41 U.S.C. § 7103(b)(1) (2012). Both parties likewise acknowledge that
“technical compliance with certification is not a jurisdictional prerequisite to litigation of
a contractor’s claim under the CDA.” M. Maropakis Carpentry, Inc. v. United States,
609 F.3d 1323, 1329 (Fed. Cir. 2010).
The disagreement between the parties with regard to the court’s jurisdiction relates
to the individual who is properly able to certify the claim on behalf of the contractor
pursuant to 41 U.S.C. § 7103(b)(1)(D). In this case, plaintiff’s attorney certified the
claim. See ECF No. 6 at 6 (plaintiff acknowledging that its attorney, Mark J. Fanelli,
certified the claim at issue). In its motion to dismiss, defendant argues that the
certification of plaintiff’s claim—made by its attorney—was invalid because such
certification must come from the contractor, not the contractor’s agent. See ECF No. 5 at
5.

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In support of this position, defendant cites W.H. Moseley Co., Inc. v. United
States, 677 F.2d 850, 852 (Ct. Cl. 1982), cert denied, 459 U.S. 836 (1982). In W.H.
Moseley, plaintiff argued that its claim, which was signed by an economist who had
conducted an economic analysis supporting the claim, met the CDA’s certification
requirement. See id. at 851. The court held that plaintiff’s purported certification was
invalid because the operative language was written by the economist rather than the
contractor. See id. at 852 (“Most significantly, the fact that the language, which is
supposed to indicate plaintiff’s belief that the amount requested accurately reflects the
contract adjustment, is written by Dr. Mitchell and not by the contractor invalidates any
claim to a proper certification.”). Defendant also cites to T.J.D. Servs., Inc. v. United
States, a case in which the court found that the claim letter at issue was “signed only by
the plaintiff’s attorney and, as such, cannot constitute a certified claim.” 6 Cl. Ct. 257,
261-62 (1984). In both W.H. Moseley and T.J.D. Services, the court dismissed the
claims for lack of subject-matter jurisdiction. See W.H. Moseley, 677 F.2d at 852
(“Since plaintiff failed to certify its claim as required by section 6(c)(1) of the Contract
Disputes Act of 1978, we are without jurisdiction to consider its direct appeal to this
court.”); T.J.D. Servs., 6 Cl. Ct. at 261-62 (holding that plaintiff’s certified claim, which
was “signed only by the plaintiff’s attorney and, as such, cannot constitute a certified
claim,” and concluding that the court lacked jurisdiction to consider the claim as a result).
According to plaintiff, its certification is sufficient, even if not technically
compliant. See ECF No. 6 at 5. First, plaintiff argues: “the case law is clear that the
certification can be executed by the plaintiff’s attorney.” Id. Plaintiff offers Flying
Horse v. United States, 49 Fed. Cl. 419 (2001) as the clear case law on this point, but the
case does not support plaintiff’s argument. In Flying Horse, defendant challenged the
validity of plaintiffs’ claim because plaintiffs’ attorney filed their claim with the
contracting officer. 49 Fed. Cl. at 428. The court disagreed, and held that the statute did
not specify who was required to file a claim. See id. The identity of the person filing the
claim, however, is not the issue now before the court; instead, here defendant challenges
the identity of the person certifying the claim on the contractor’s behalf. The court in
Flying Horse specifically noted that the certification requirement was not implicated
under the circumstances of that case, noting that “proper certification is, indeed, required
only for claims above $100,000.” Id. at 429. As such, the decision in Flying Horse is
inapplicable to the facts here.
Plaintiff next argues that improper certification is a technical matter that should
not prevent the court from exercising its jurisdiction. See ECF No. 6 at 6. Plaintiff
insists that because its attorney was acting in his representative capacity when he certified
the claim, the attorney’s certification, in substance, satisfies the requirement that the
claim be certified by an individual who “is authorized to certify the claim on behalf of the
contractor.” 41 U.S.C. § 7103(b)(1)(D). Although plaintiff’s argument has some logical
appeal, it is contrary to case law. This court has specifically held, on multiple occasions,
that a contractor’s attorney was ineligible to certify a claim on the contractor’s behalf.
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The court explained the reason for this rule in Romala Corp. v. United States, 12 Cl. Ct.
411, 412-13 (1987), as follows:
The certification requirement fulfills an important Congressional objective
of the Contract Disputes Act by discouraging the submission of unwarranted
contractor claims and encouraging settlement. S. Rep. No. 1118, 95th Cong.,
2d Sess. 5, reprinted in [1978] U.S. Code Cong. & Ad. News 5235, 5239;
Paul E. Lehman, Inc. v. United States, 230 Ct. Cl. 11, 14, 673 F.2d 352, 354
(1982). Additionally, “certification plays a serious role in the statutory
scheme because it triggers a contractor’s potential liability for a fraudulent
claim under section 604 of the Act.” Skelly and Loy v. United States, 231
Ct. Cl. 370, 376 n.11, 685 F.2d 414, 418 n.11 (1982); T.J.D. Services, Inc. v.
United States, 6 Cl. Ct. at 262.
This Court has consistently held that proper certification is a jurisdictional
prerequisite to a direct access action by a Government contractor in this Court
if the claim submitted exceeds $50,000.[1] Fredenburg v. United States, 10
Cl. Ct. at 218; T.J.D. Services, Inc. v. United States, 6 Cl. Ct. at 260;
Transamerica Ins. Co. v. United States, 6 Cl. Ct. 367, 370 (1984); W.H.
Moseley Co. v. United States, 230 Ct. Cl. 405, 407, 677 F.2d 850, 852, cert.
denied, 459 U.S. 836, 103 S. Ct. 81, 74 L.Ed.2d 77 (1982). Due to the
importance accorded certification as well as the potential liability stemming
from misrepresentation or fraud, the contractor must personally certify his
written claim for damages. A claim signed by an attorney without more is
not sufficient. T.J.D. Services, Inc. v. United States, 6 Cl. Ct. at 261.
Here, plaintiff has neither successfully distinguished its case from this line of decisions,
nor has it convinced the court that a departure from the court’s approach on this issue is
supported in this instance.
In the alternative, plaintiff requests that, should the court conclude that the
certification was insufficient, the court permit plaintiff “to submit an amended
certification since technical compliance with certification is not a jurisdictional
prerequisite.” ECF No. 6 at 6. For the reasons discussed above, the court finds that
certification by an authorized individual, as required by 41 U.S.C. § 7103(b)(1)(D), is not
a technical matter, and that plaintiff’s failure to comply with the requirement prevents the
court from exercising jurisdiction over its claims. The court, therefore, cannot grant this
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At the time that Romala Corp. v. United States, 12 Cl. Ct. 411 (1987) was decided, the
Contract Disputes Act required certification of claims exceeding $50,000. That amount was
increased to $100,000 in 1994. See Medina Const., Ltd. v. United States, 43 Fed. Cl. 537, 546
n.8 (1999).

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request to amend. Defendant’s motion to dismiss the first four counts of plaintiff’s
complaint is granted.
B.

The Court Lacks Jurisdiction over Plaintiff’s Tort Claims

The final three counts of plaintiff’s complaint allege: negligent retention of a
contractor (Count V), negligent supervision of a contractor (Count VI), and failure to
properly remediate the Siena Place property under the Pennsylvania Hazardous Sites
Cleanup Act of 1988 (Count VII). See ECF No. 1 at 10-14. Defendant argues that all
three counts are tort claims outside this court’s jurisdiction, and that the final count is also
a claim brought pursuant to state law, which is likewise beyond the authority of this court
to review. See ECF No. 5 at 5-7. The court agrees.
Claims for negligence sound in tort. See Souders v. S.C. Pub. Serv. Auth., 497
F.3d 1303, 1307 & n.5 (Fed. Cir. 2007). And tort claims are expressly excluded from this
court’s jurisdiction under the Tucker Act. See 28 U.S.C. § 1491(a)(1) (giving the court
authority to consider claims against the United States “not sounding in tort”); see also
Aetna Cas. & Sur. Co. v. United States, 655 F.2d 1047, 1059 (Ct. Cl. 1981) (“Tort claims
. . . are expressly beyond our Tucker Act jurisdiction.”). As such, the court lacks the
authority to consider plaintiff’s tort claims.
To the extent that plaintiff’s final count, alleging a violation of Pennsylvania state
law, does not sound in tort, it remains outside this court’s jurisdiction. See Souders, 497
F.3d at 1307 (“Claims founded on state law are also outside the scope of the limited
jurisdiction of the Court of Federal Claims.”).
Plaintiff urges the court to exercise jurisdiction over the final three counts of its
complaint because defendant successfully moved to dismiss the previous iteration of this
case in district court, and plaintiff views defendant’s present motion to dismiss on
jurisdictional grounds as an attempt “to deprive Penrose Park of any opportunity to have
its day in any court.” ECF No. 6 at 7. Plaintiff argues that “Defendant should be bound
by its prior statements in the Eastern District Action arguing lack of jurisdiction.” Id.
Plaintiff’s argument is unavailing. This court’s jurisdiction is circumscribed by statute,
and the court is not empowered to exceed that statutory grant of authority even if it were
to view defendant’s litigation arguments as inconsistent or disingenuous. Defendant’s
motion to dismiss the final three counts of plaintiff’s complaint is granted.
IV.

Conclusion

For the foregoing reasons, the court lacks jurisdiction to consider plaintiff’s
complaint, and defendant’s motion to dismiss, ECF No. 5, is GRANTED. The clerk’s
office is directed to ENTER final judgment DISMISSING plaintiff’s complaint for lack
of subject-matter jurisdiction, without prejudice.
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IT IS SO ORDERED.

s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH,
Judge

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