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No. 15-581C
Filed: December 10, 2015
FILED
DEC t0 206
* * * * * * * * * * * * * * * l' * ** *
i.
U.S. COURT OF
FEDERAL CI-AIMS
VICTOR OGUNNIYI,
Plaintiff, Pro Se Plaintiff; Motion to
v,
Dismiss; Lack of Subject Matter
Jurisdiction; Breach of Contract;
UNITED STATES, Third-Party Benefi ciary.
Defendant.
* * :l * * * * * * * * + * * * * *
Victor Ogunniyi, p1q se, Lemon Grove, CA.
Reta E. Bezak, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her were Martin F'
Hockey, Jr., Assistant Director, Robert E. Kirschman, Jr., Director, Commercial
Litigation Branch, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, Washington, D.C. Stephen Tobin, Naval Litigation Office, Office of the
General Counsel, of counsel.
ORDER
HORN. J.
FINDINGS OF FACT
On June 8,2015, plaintiff Victor Ogunniyi filed a pro se complaint in the United
States Court of Federal Claims, in which he alleges a number of claims against the United
States arising from a contract between his company, Commissioning Solutions Global
LLC (CSG), and the United States Navy to provide lube oil flushing services. Plaintiff
seeks "general, special and incidental damages in the full value of the contract sum" with
interest, punitive damages, and declaratory relief for an alleged breach of contract and
various tortious acts, which plaintiff asserts caused financial and personal hardship.
According to the parties' submissions and the Armed Services Board of Contract
Appeals (ASBCA) decision issued on August 7, 2014, the Navy Southwest Regional
Maintenance Center (SWRMC) awarded Contract No. N55236-13-D-0001 to CSG on
November 1,2012 for hydraulic/lube oil flush services on Navy vessels located within a
50-mile radius of San Diego, California. The contract included one base year and four
one-year option periods with the period of performance to begin on the contract award
date, November 1,2012. The contract between the Navy and CSG was an indefinite-
quantity (la) type contract under which work would be ordered by the award of fixed-price
delivery orders in accordance with Federal Acquisition Regulation (FAR) 52.216-18,
Ordering (Oct. 1995); FAR 52.216-19, Ordering Limitations (Oct. 1995); and FAR 52.216-
22, Indefinite Quantity (Oct. 1995). Each of these clauses was incorporated in full text
into the contract. The guaranteed minimum amount on the contract was $3,000.00, and
could be met through the issuance of one or more delivery orders within five years of the
contract award. The contract clauses specifically stated that the government had no
obligation to issue delivery orders to CSG beyond the minimum contract guarantee
amount. Plaintiff has not alleged that defendant failed to meet the contract's $3,000.00
ordering requirement.
The parties' submissions show that this case has extensive procedural history. On
February 13,2014, CSG filed a certified claim with the SWRMC contracting officerfor lost
profits of $3,599,668.17, $1,000,000.00 to restore equipmentto original functionality, and
$5,000,000.00 for emotional stress, instability, and family reputation. The contracting
officer issued a final decision on April 4, 2014 denying CSG's claim in its entirety. CSG
appealed the contracting officer's final decision to the ASBCA on April 10, 2014.1 In its
appeal, CSG made numerous allegations concerning Contract No. N55236-13-D-0001
between CSG and the Navy, including that the contract was essentially a requirements
contract such that the Navy was required to order any hydraulic/lube oil flush services on
Navy vessels located within a S0-mile radius of San Diego, California from CSG and that
the Navy failed to comply with this obligation, which allegedly resulted in a myriad of
problems for plaintiff. In an August 7, 2014 decision, ASBCA Administrative Judge Lopes
dismissed CSG's appeal because it failed to state a claim upon which relief could be
granted. See Commissionino Solutions Global. LLC, A.S.B.C.A. No. 59254, 14-1 B.C.A.
1T 35,695, 2014 WL 4073074 (Aug 7, 2014). Judge Lopes held that, even assuming all
of plaintiff's allegations to be true, such facts still could not constitute a breach of contract
because the contract was an lQ type contract, the Navy was not prohibited from ordering
hydraulic/lube oil flush services from other parties, and the Navy had no contractual
obligation to order work from CSG so long as it satisfied the $3,000.00 minimum. See jg!.
Administrative Judge Lopes further held that the appropriate time for CSG to argue that
the contract should have been a requirements type contract was before the contract was
awarded, therefore, CSG's argument was untimely. See id.
CSG appealed the ASBCA's decision to the United States Court of Appeals for the
Federal Circuit. On December 2,2014, in a brief, non-precedential Order, the Federal
Circuit dismissed the appeal in accordance with Federal Circuit Rules 47 .3 and 52(aX1)
(2014) tor failure to file the required Entry of Appearance form by an attorney admitted to
the bar of the court, and failure to pay the docketing fee. See Commissionino Solutions
Global LLC v. Mabus, 14-1817 (Fed. Cir. Dec. 2,2014). CSG then submifted what was
1 Plaintiff's first submission to the ASBCA was dismissed without prejudice for failure to
state a sum certain. @ Commissioninq Solutions Global. LLC, A.S.B.C.A. No. 59007-
945, 14-1 B.C.A. fl 35,523, 2014 WL 641322 (Feb. 5, 2014). Plaintiff subsequently filed
a claim with a sum certain to the SWRMC contracting officer, which was denied, and
plaintiff appealed the contracting officer's final decision to the ASBCA.
construed as a motion for reconsideration of the court's earlier dismissal of plaintiffs
appeal. Again, in a brief, non-precedential Order, the Federal Circuit denied the motion
for reconsideration because CSG still had not filed an attorney's Entry of Appearance or
paid the docketing fee. See Commissioninq Solutions Global LLC v. Mabus, 14-1817
(Fed. Cir. March 19, 2015).
Subsequently, plaintiff filed a complaint in this court. Defendant filed a motion to
dismiss plaintiffls complaint pursuant to Rule 12(bX1) and Rule 12(bX6) of the Rules of
the United States Court of Federal Claims (RCFC) (2015). In a footnote, defendant
stated:
Mr. Ogunniyi names himself as plaintiff in this suit rather than CGS [sic].
This may be an attempt to avoid this Court's Rule 83.1 (a)(3), which prohibits
a pro se litigant from representing a corporation (the Federal Circuit cited
failure to abide by a similar rule as part of its decision to dismiss CSG's
appeal). Further, although Mr. Ogunniyi is the "Sole Owner" of CSG, the
contract he alleges the Government breached was between the Navy and
CSG. Accordingly, CSG is the proper plaintiff in this case.
(internal citations omitted). Defendant also argued that, "although Mr. Ogunniyi names
himself as plaintiff in the suit before this Court, his claims surround an alleged breach of
contract to which CSG and not Mr. Ogunniyi was a party." Thereafter, this court issued
an Order requiring the parties to address the issue of the proper party plaintiff, whether
Mr. Ogunniyi is in privity of contract with the United States, as required by the Tucker Act,
28 U.S.C. S 1491(aX1) (2012), and whether Mr. Ogunniyi was an intended third party
beneficiary to CSG's contract. In accordance with the Order, defendant submitted
additional briefing arguing that "Mr. Ogunniyi is not in privity of contract with the United
States: therefore, his claims of breach of contract on behalf of CSG should be dismissed."
Defendant further argued that Mr. Ogunniyi was not a third-party beneficiary. Plaintiff,
however, responded that "[t]he Plaintiff via his company (CSG) has expressed and
implied [sic] contract with the United States" thus he has "both direct privity and third-party
beneficiary status."
DISCUSSION
The court recognizes that plaintiff has expended a great deal of effort to develop
his lengthy complaint. Nonetheless, in order for his case to proceed in this court, he must
be able to establish that this court has jurisdiction. The court also recognizes that plaintiff
is proceeding pro se, without the assistance of counsel. When determining whether a
complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs
are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519,
520-21 (requiring that allegations contained in a p se complaint be held to "less
stringent standards than formal pleadings drafted by lawyers"), reh'q denied,405 U.S.
9aB (972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Huqhes v. Rowe,449
U.S.5,9-10 (1980); Estelle v. Gamble,429 U.S.97, 106 (1976), reh'q denied,429 U.S.
1066 (1977); Matthewsv. United States,750 F.3d 1320,1322 (Fed. Cir.20'14), Diamond
v. United States, 115 Fed. C|.516, 524,aft'd,603 F. App'x 947 (Fed. Cir.2015), cert.
denied 1 35 S. Ct. 1 909 (2015). "However, "'[t]here is no duty on the part of the trial court
to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.""' Lenqen
v. United States, 100 Fed. Cl.317,328(2011) (alterations in original) (quoting Scooin v.
United States,33 Fed. C|.285,293 (1995) (quoting Clarkv. Nat'l Travelers Life lns. Co.,
518 F.2d 1167, 1'169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. Cl. 89,
94,aft'd,443 F. App'x 542 (Fed. Cir.2011); Minehan v. United States,75 Fed. Cl'249,
253 (2007). "While a pro se plaintiff is held to a less stringent standard than that of a
plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of
establishing the Court's jurisdiction by a preponderance of the evidence." Riles v. United
States, 93 Fed. Cl. 163, 165 (2010) (citing Huqhes v. Rowe, 449 U.S. at g and Tavlor v.
United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing
jurisdiction by a preponderance of the evidence."), reh'q and reh'o en banc denied (Fed.
Cir. 2002)); see also Shelkofskv v. United States, 119 Fed. Cl. 133, 139 (2014) ("[Wjhite
the court may excuse ambiguities in a pro se plaintiffs complaint, the court'does not
excuse [a complaint's] failures."'(quoting Henke v. United States, 60 F.3d 795, 799 (Fed.
Cir. 1995)); Hanis v. United States, 113 Fed. Cl.290, 292 (2013) ("Although plaintiffs
pleadings are held to a less stringent standard, such leniency 'with respect to mere
formalities does not relieve the burden to meet jurisdictional requirements."' (quoting
Minehan v. United States, 75 Fed. Cl. at 253).
As a threshold issue, RCFC 83.1(a)(3) provides that an "individual who is not an
attorney may represent oneself or a member of one's immediate family, but may not
represent a corporation, an entity, or any other person in any other proceeding before this
court." RCFC 83.1(a)(3) (2015). In his complaint, ptaintiff describes "Commissioning
Solutions Global LLC" as "a small engineering and technical services company."
Defendant argues that "to the extent that Mr. Ogunniyi does seek to represent CSG, this
Court's rules do not permit him to do so." The parties do not dispute that plaintiff is trying
to pursue his case in this court pro se or that csG is a corporate entity. In accordance
with RCFC 83.1(a)(3), plaintiff cannot represent the interests of CSG before this coun
because he is not an attorney admitted to the bar of this court. In his complaint and his
subsequent submissions to the court, plaintiff confuses and conflates himself and his
company, CSG. Plaintiff goes so far as to assert that "Victor Ogunniyi and Commissioning
Solutions Global/CSG are one in the same." Plaintiff and CSG, however, are separate
under the law, and plaintiff cannot cloak himself as csG in order to assert a claim for
damages against the United states. The court also notes that in plaintiffs prior appeals
to the ASBCA and the Federal circuit, csG was the named plaintiff. see commissioninq
Solutions Global, LLC, A.S.B.C.A. No. 59254, 14-1 B.C.A. 1l 35,695, 2014WL4073074.
To the extent that Mr. ogunniyi's complaint is a veiled attempt to allow him to argue on
behalf of csG and seek essentially a second appeal or review of the contracting officer's
decision against CSG, under RCFC 83.1 (a)(3), absent a notice of appearance filed by an
attorney admitted to this court, plaintiff's complaint must be dismissed. Since no such
notice of appearance has been filed, this court cannot proceed to adjudicate plaintiffs
case, which is in fact a claim for an alleged violation of the contract with CSG.
In addition, it is well established that "'subjeclmatter jurisdiction, because it
involves a court's power to hear a case, can never be forfeited or waived."' Arbauoh v. y
& H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 53S U.S. 625, 630
(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press." Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428 (20'11): see also Gonzalez v. Thaler, 132 S.
Ct. 641, 648 (2012) ("When a requirement goes to subjecfmatter jurisdiction, courts are
obligated to consider sua sponfe issues that the parties have disclaimed or have not
presented."); Hertz Corp. v. Friend, 559 U.S. 77 ,94 (2010) ("Courts have an independent
obligation to determine whether subject-matter jurisdiction exists, even when no party
challenges it." (citing Arbauqh v. Y & H Corp., 546 U.S. at 51a)); Soecial Devices, Inc. v.
OEA. |nc.,269 F.3d 1340,1342 (Fed. Cir. 2001) ('[A] court has a dutyto inquire into its
jurisdiction to hear and decide a case." (citing Johannsen v. Pav Less Druq Stores N.W..
Inc.,918 F.2d 160, 161 (Fed. Cir. 1990)); View Eno'o. Inc. v. RoboticVision Svs., Inc.,
115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction,
whether the parties raise the issue or not."). "Objections to a tribunal's jurisdiction can be
raised at any time, even by a party that once conceded the hibunal's subject-matter
jurisdiction overthe controversy." Sebelius v. Auburn Req'l Med. Ctr., 133 S. Ct.817,824
(2013); see also Arbauqh v. Y & H Coro., 546 U.S. at 506 ("The objection that a federal
court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its
own initiative, at any stage in the litigation, even after trial and the entry of judgment.");
Cent. Pines Land Co., L.L.C. v. United States,697 F.3d 1360, 1364 n.1 (Fed. Cir.2012)
("An objection to a court's subject matter jurisdiction can be raised by any party or the
court at any stage of litigation, including after trial and the entry of judgment." (citing
Arbauqh v. Y & H Corp., 546 U.S. at 506-07)); Rick's Mushroom Serv.. lnc. v. United
States, 521 F.3d at 1346 ("[A]ny party may challenge, or the court may raise sua sponte,
subject matter jurisdiction at any time." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506;
Folden v. United States, 379 F.3d 1344,1354 (Fed. Cir.); and Fanninq, Phillips & Molnar
v. West, 160 F.3d 717,720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. Cl.71,76,
appeal dismissed , 425 F . App'x 902 (Fed. Cir. 2011\. ln fact, "[s]ubject matter jurisdiction
is an inquiry that this court must raise sua sponte, even where . . . neither party has raised
this issue." Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdinqs,370 F.3d 1354, 1369
(Fed. Cir.) (citing Textile Prods.. Inc. v. Mead Corp., 134 F.3d 1481,1485 (Fed. Cir.),
reh'q denied and en banc suqqestion declined (Fed. Cir.), cert. denied,525 U.S.826
(1998)), reh'q and reh'o en bancdenied (Fed. Cn.2004), cert. qranted in partsub. nom
Lab. Corp. of Am. Holdinqs v. Metabolite Labs.. lnc., 546 U.S. 975 (2005), cert. dismissed
as improvidentlv qranted, 548 U.S. 124 (2006)i see also Avid ldentification Svs.. lnc. v.
Crystal lmport Corp.,603 F.3d 967,971 (Fed. Cir.) ("This court must always determine
for itself whether it has jurisdiction to hear the case before it, even when the parties do
not raise or contest the issue."), reh'q and reh'o en banc denied, 614 F.3d 1330 (Fed. Cir.
2010), cert. denied, 131 S. Ct.909 (2011).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. $ 1a91(a)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United States
(1) founded on an express or implied contract with the United States, (2) seeking a refund
from a prior payment made to the government, or (3) based on federal constitutional,
statutory, or regulatory law mandating compensation by the federal government for
damages sustained. See United States v. Navaio Nation, 556 U.S. 287, 289-90 (2009);
United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee Cntv., Ariz. v.
United States, 487 F.3d871,875 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir.
2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310,1314
(Fed. Cir. 1999).
Plaintiff asserts that this court has jurisdiction "to enter judgement [sic] in
government contract cases," and this jurisdiction "has empowered this court to hear the
Plaintiffls case as further described in 28 u.s.c. S 1491 . lt is also part of the Due process
to ensure that the contract Disputes Act (cDA) 41 u.s. code g [sic] is honored and
respected." (emphasis in original). In a later submission, plaintiff states: "[t]he Plaintiff's
case has been presented on the Tucker Act and not on cDA." plaintiff also states:
(Victor Ogunniyi) as Chief Executive Officer and president of CSG. and. as
Senior Officer and as individual, did in fact enter into an express and implied
Contract with the United States, by the execution of a CIS [Commercia
Industrial Servicesl Contract in October 2012; therefore, both Victor ano
CSG are DIRECT Beneficiaries to any Ruling and Judgment handed down
by this Honorable Court.
(capitalization in original). Plaintiffls statements as to the jurisdiction of this coun
demonstrate his confusion
Defendant argues that plaintiffls complaint should be dismissed for lack of subject
matter jurisdiction because Mr. Ogunniyi is not in privity of contract with the United States
and should not be allowed to assert his breach of contract claim. Defendant also asserts
that Mr. ogunniyi is not a third party beneficiary who can sue the United states for breach
of contract despite the absence of privity.
As stated in the Tucker Act, 28 U.s.c. g 1a9i (a)(1), privity of contract between a
plaintiff and the United states government is required to bring a cause of action in the
United States court of Federal claims for express and implied contracts. see cieneqa
Gardensv. united states, 194 F.3d 1231,1239 (Fed. cir. 1998) ("Undertneruckernct,
the court of Federal claims has jurisdiction over claims based on iany express or implied
contract with the united states.'28 u.s.c. g 1a91(a)(1) (i994). we have stated that ,1t1o
maintain a cause of action pursuant to the Tucker Act that is based on a contract, ihe
contract must be between the plaintiff and the government.' Ransom v. United states,
900 F 2d 242,244 (Fed. Cir. 1990)."), cert. denied, 528 U.S. AZO (teg9)., sCCalsgESICg
Exp. Lines v.United states. 739 F.3d 689,693 (Fed. cir. zot+); rtbxrao. lr.c. v. unitea
states, 424 F.3d 1254,1265 (Fed. cir. 2005) (The "government consents to be sued only
by those with whom it has privity of contract."); S. Cal. Fed. Sav. & Loan Ass'n v. United
states, 422 F.3d 1319, 1328 (Fed. cir.) ("A ptaintiff must be in privity wtftr ttre uniteo
States to have standing to sue the sovereign on a contract claim," but noting exceptions
to this general rule (citing Anderson v. United States,344 F.3d 1343, 1352 (Fed. Cir.),
reh'o and reh'q en banc denied (Fed. Cir. 2003))); United States v. Alqoma Lumber Co.,
305 U.S. 415, 421 (1939))), reh'q and reh'q en banc denied (Fed. Cir. 2005), cert. denied,
548 U.S. 904 (2006); Erickson Air Crane Co. of Wash. v. United States. 731 F.2d 810,
813 (Fed. Cir. 1984) ("The government consents to be sued only by those with whom it
has privity of contract.").2
Although plaintiff argues that there is an express and implied contract between
himself and defendant, plaintiffs allegations rest on his idea that he and CSG, as he
states, are "one in the same," a theory that is not viable in this court. The parties do not
disoute that there is a contract between the United States and CSG, however, as
previously noted, CSG is not a plaintiff in the above captioned case and Mr. Ogunniyi is
prohibited from representing CSG under RCFC 83.1(aX3). In entering into Contract No.
N55236-13-D-0001 for hydraulic/lube oil flush services, privity of contract was created
between CSG and the United States, not between Mr. Ogunniyi and the United States,
regardless of his role in the company. Accordingly, without privity of contract, plaintiffs
complaint must be dismissed unless plaintiff can demonstrate that he is a third party
beneficiary of the contract.
"This Court has recognized limited exceptions to [the privity rule] when a party
standing outside of privity'stands in the shoes of a pafi within privity."' See Sullivan v.
United States,625 F.3d 1378, 1380 (Fed. Cir.2010) (quoting First Hartford Corp. Pension
Plan & Trust v. United States, 194 F.3d 1279,1289 (Fed. Cir. 1999), reh'o en banc denied
(Fed. Cir. 2000)). A party lacking privity with the United States may be able to sue the
federal government, however, if it can demonstrate that it is an intended third-party
beneficiary of a contract with the United States. See Sioux Honev Ass'n v. Hartford Fire
lns. Co., 672F.3d at 1056 ("A plaintiff lacking privity of contract can nonetheless sue for
damages under that contract if it qualifies as an intended third-party beneficiary.); {lgile
Cntv.. Cal. v. United States,417 F.3d 1366, 1368 (Fed. Cir. 2005) ("ln order to sue for
damages on a contract claim, a plaintiff must have either direct privity or third-party
beneficiary status."); Anderson v. United States, 344 F.3d at 1352 ("Without either direct
privity or third-party beneficiary status, the Paul sons lack standing to sue the government
and cannot therefore recover damages from the United States."); Nelson Const. Co. v.
United States,79 Fed. Cl. 81, 95 (2007); Enterqy Nuclear Indian Point 2, LLC v. United
States, 64 Fed. Cl. 515, 523 (2005) ("To have standing to bring a breach of contract claim,
2
As stated in this court's August 21, 2015 Order, in order for this court to have jurisdiction
under the Tucker Act, the party seeking relief must be in privity of contract with the
government. SeeWinterv. FloorPro. lnc.,570 F.3d 1367,1372 (Fed. Cir.2009). Aparty
lacking privity with the United States may be able to sue the federal government, however,
if it can demonstrate that it is an intended third-party beneficiary of a contract with the
United States. See Sioux Honev Ass'n v. Hartford Fire Ins. Co.,672 F.3d 1041, 1056
(Fed. Cir.), cert. denied, 133 S. Ct. 126 (2012).
7
plaintiffs must also be in privity of contract with the government or a third party beneficiary
of a contract with the government."); O. Ahlboro & Sons, lnc. v. United States ,74 Fed. Cl.
178, 188 (2006) ("The third-party beneficiary exception exists to cover situations in which
the subcontractor 'stands in the shoes of a party with privity."' (quoting First Hartford Corp.
Pension Plan & Trust v. United States, 194 F.3d at 1289)). But see Chancellor Manor v.
United States,331 F.3d 891,901 (Fed. Cir.2003) (holding that "Appellants could
establish privity of contract if they are intended third-party beneficiaries of a contract with
the United States . . . ." (citing First Hartford Corp. Pension Plan & Trust v. United States,
194 F.3d at 1289)); Stockton E. Water Dist. v. United States, 70 Fed. Cl. 515, 526 (2006)
("One method of 'establish[ing] privity of contract [is] if [plaintiffs] are intended third-party
beneficiaries of a contract with the United States . . . ."' (quoting Chancellor Manor v.
United States, 331 F.3d at 901)) (modifications in original), iudqment entered, 75 Fed. Cl.
321, modifvinq in part,76 Fed. C|.470, reconsideration denied,76 Fed. Cl.497 (2007),
rev'd on otherqrounds,5S3 F.3d 1344 (Fed. Cir.2009), partial reh'q qranted,638 F.3d
781 (Fed. Cu.2011); Klamath lrriqation Dist. v. United States,67 Fed. Cl. 504,532 ("Such
privity would exist if the irrigators are properly viewed as third-party beneficiaries to the
district contracts." (citing Chancellor Manor v. United States, 331 F.3d at 901, and First
Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d at 1289)), modifuinq order,
68 Fed. Cl. 119, denvinq certification of interlocutorv appeal, 69 Fed. Cl. 160 (2005). "ln
order to prove third party beneficiary status, a party must demonstrate that the contract
not only reflects the express or implied intention to benefit the party, but that it reflects an
intention to benefit the party directly." Glass v. United States, 258 F.3d 1349, 1354 (Fed.
Cir. 2001).
Defendant asserts that the "complaint does not allege any basis upon which any
benefit was owed to Mr. Ogunniyi, individually, under the contract, nor does any clause
of the contract reflect an intention to so benefit him." Defendant argues further that "any
benefit to Mr. Ogunniyi under the contract stems incidentally from his position as owner
of the contracting company, not as a separate beneficiary." Plaintiff, however, asserts
that defendant knew about the relationship between himself and CSG. Despite
defendant's alleged knowledge about the relationship between plaintiff and CSG, plaintiff
has failed to establish that there is any language in the contract that reflects an intention
to benefit Mr. Ogunniyi directly. The parties' submissions demonstrate that the contract
was entered into so that CSG would provide the services agreed to under the contract.
Accordingly, because plaintiff did not have privity of contract with the United States and
was not an intended third-party beneficiary of Contract No. N55236-13-D-0001 for
hydraulic/lube oil flush services, plaintiffs breach of contract allegations also must be
dismissed for lack of jurisdiction.
Plaintiff makes a number of other allegations sounding in tort that stem from or are
related to the alleged breach of contract, including: potential fraud and conspiracy; unfair
competition and discrimination with gouging; intentional destruction of a small business
entity; reckless misuse of tax payers' money; intentional misrepresentation of facts;
compromising the Navy mission; and, destruction of property, staffing and heightened
stress. To the extent that these allegations in plaintiffs complaint are separate from
plaintiffs allegations of breach of contract, the allegations are dismissed because this
court does not possess jurisdiction over claims that sound in tort. See 28 U.S.C. g 1491(a)
("The United States Court of Federal Claims shall have jurisdiction to render judgment
upon any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in cases
not sounding in tort."); see also Keene Coro. v. United States, 508 U.S. 200, 214 (1993);
Rick's Mushroom Serv.. Inc. v. United States, 521 F.3d at 1343; Alves v. United States,
133 F.3d 1454,1459 (Fed. Cir. 't998); Brown v. United States, 105 F.3d 621, 623 (Fed.
Cir.), reh'q denied (Fed. Cir. 1997); Golden Pac. Bancorpv. United States, 15 F.3d 1066,
1070 n.8 (Fed. Cir.), reh'q denied, en banc suosestion declined (Fed. Cir.), cert. denied,
513 U.S. 961 (1994); Hamoel v. United States, 97 Fed. Cl. at 238; Woodson v. United
States, 89 Fed. Cl. 640, 650 (2009); McCullouqh v. United States, 76 Fed. Cl. 1, 3 (2006),
reh'q denied (Fed. Cir.) cert. denied, 552 U.S. 1050 (2007) ;Aqee v. United States, 72
Fed. Cl. 284,290 (2006); Zhenqxino v. United States,71 Fed. Cl.732,739, aff d,2O4 F.
App'x 885 (Fed. Cir.), reh'o denied (Fed. Cir. 2006). Therefore, to the extent any of
plaintiffs claims sound in tort, those claims must be dismissed.
Finally, in addition to the fact that plaintiff is not able to represent CSG p1q se,
plaintiff is not in privity with the United states, nor is plaintiff an intended third-party
beneficiary of CSG's contract with the Navy, and is, therefore, unable to pursue the aoove
captioned suit in this court, CSG's decision initially to appeal the contracting officer's April
4, 2014 final decision to the ASBCA foreclosed Mr. Ogunniyi's or CSG's ability to bring a
suit based on the same contract and claim in this court according to the election doctrine
included in the Contracts Disputes Act (CDA). See 41 U.S.C. S 7104 (2012). The CDA
established an exclusive dispute-resolution mechanism for "any express or implied
contract . . . made by an executive agency" for four types of contracts, including those
made for "the procurement of services." 4 l U. S. C. S 7 1 02(a)(2) (20 1 2). The CDA provides
that a contractor making a claim against the federal government based on a contract with
the United states first shall submit its claim, in writing, to the contracting ofiicer
responslble forthat contract. see 41 u.s.c. g 7103(a) (20i2). lf the contracting officer
renders a final decision adverse to a contractor's claim, the contractor may appeal that
decision to the relevant agency Board within ninety days of receiving it. See 41 U.S.C. S
710a@). Alternatively, "in lieu of appealing the decision of a contracting officer . . . to an
agency board, the aggrieved contractor may bring an action direcfly on the claim in the
United states court of Federal claims," 41 u.s.c. S 7104(b)(j), so long as that action is
brought within twelve months of the contractor's receipt of the adverse contractino
officer's final decision. See 41 U.S.C. S 7104 (b)(3).
while the cDA offers contractors a choice of forums in which to appeal an aoverse
contracting officer's final decision, once a contractor has decided between appealing to
the relevant agency Board or bringing a suit in this court, the contractor is precluded fiom
bringing the same claim in the alternative forum, so long as the plaintiffs choice was
informed, knowing, and voluntary and the forum chosen has jurisdiction. see Bowers Inv.
Co,. LLC v. United States, 695 F.3d 1380, 1383 (Fed. Cir. 2012), Bonneville Assocs. v.
United States, 43 F.3d 649, 655 (Fed. Cir. 1994) (citing Mark Smith Constr. Co. v. United
States, 10 Cl. Ct.540, 544 (1986)). According to the United States Court of Appeats for
the Federal Circuit:
It is well established that, pursuant to the Contract Disputes Act, a
contractor wishing to contest an adverse final decision by the contracting
officer either may appeal the contracting officer's adverse decision to the
appropriate board of contract appeals or may contest the contracting
officer's decision directly to the Claims Court [Court of Federal Claims]. This
choice has given rise to a body of jurisprudence known as the "Election
Dockine. "
Once a contractor makes a binding election under the Election Doctrine to
appeal the contracting officer's adverse decision to the appropriate board
of contract appeals, that election must stand and the contractor can no
longer pursue its claim in the alternate forum. Under the Election Doctrine,
the binding election of forums is an "either-or" alternative, and, as such,
does not provide a contractor with dual avenues for contesting a contracting
officer's diverse decision.
Nat'l Neiqhbors. Inc. v. United States, 839 F.2d 1539, 1541-42 (Fed. Cir. 1988) (citing
TuttleMhite Constructors. Inc. v. United States ,228 Cl. Cl. 354, 361 , 656 F .2d 644, 647 ,
649 (1981)) (footnote omitted). This rule was reiterated in Texas Health Choice. L.C. v.
Office of Personnel Manaqement, in which the Federal Circuit stated:
The CDA provides alternative forums for challenging a [contracting officer's]
final decision: a contractor may file an appeal with the appropriate board of
contract appeals, 41 U.S.C. S 606 (1988), or appeal directly to the Court of
Federal Claims,41 U.S.C. S 609(aX1) (Supp. V 1993). Courts have
consistently interpreted the CDA as providing the contractor with an either-
or choice of forum.
Texas Health Choice. L.C. v. Office of Pers. Mqmt., 400 F.3d 895, 899 (Fed. Cir.), reh'q
and reh'q en banc denied (Fed. Cir.2005); see also Palafox St. Assocs.. L.P. v. United
States, 122 Fed. Cl. 18,26 (2015) ("Pursuant to the election doctrine, once a contractor
chooses the forum in which to lodge its appeal, the contractor's choice is binding, and the
contractor is no longer able to pursue its appeal in the alternate forum." (citing Nat'l
Neiqhbors. Inc. v. United States, 839 F.2d at 1542)); Bowers lnv. Co v. United States,
104 Fed. C|.246,254(2011), affd,695 F.3d 1380 (Fed. Cir.2012); Paradiqm Learninq,
lnc. v. United States, 93 Fed. Cl. 465, 474 (2010) ("Thus, if a contractor makes an
informed, knowing, and voluntary decision to pursue its appeal in another forum with
jurisdiction over the appeal, the Court of Federal Claims is required to dismiss a
subsequently filed appeal concerning the same claim for lack of jurisdiction." (citing
Bonneville Assocs. v. United States, 43 F.3d at 655)); Am. Telecom Corp. v. United
States, 59 Fed. Cl. 467,471 (2004) ("The'in lieu of language in section 609(a) clearly
indicates that the contractor has a choice of forums but does not allow the conkactor to
pursue its claims before both forums." (citing TuttleM/hite Constructors. Inc. v. United
States, 228 Ct. Cl. at 361, 656 F.2d at 649)). For a complainant's choice of forum to bar
subject matter jurisdiction in the unselected forum, the reviewing forum must have had
jurisdiction over the original claims. See Bonneville Assocs., Ltd. P'shp. v. Barram, 165
10
F.3d 1360, 1362 (Fed. Cir.) (citing BonnevilleAssocs. v. United States,43 F.3d at653),
cert. denied, 528 U.S. 809 (1999).
The contracting officer's final decision, dated April 4,2014, informed CSG and Mr.
Ogunniyi that he could choose to appeal the decision to the ASBCA within ninety days
or, in lieu of appealing the contracting officer's decision to the ASBCA, he could "bring an
action directly on the claim in the United States Court of Federal Claims." This
demonstrates that the subsequent decision by CSG to appeal to the ASBCA was
informed, knowing, and voluntary. See Bonneville Assocs. v. United States,43 F.3d at
655 (citing Bonneville Assocs. v. United States, 30 Fed. Cl. 85, 90 (1993)); Palafox St.
Assocs.. L.P. v. United States,114Fed.Cl.773,788(2014) (holdingthatthecontracting
officer's communication to the plaintiff of his options for appeal under the CDA supported
a finding that plaintiffs subsequent decision to appeal to the CBCA was informed,
knowing, and voluntary). CSG filed its appeal of the contracting officer's April 4,2014
decision on April 10, 2014 with the ASBCA. The ASBCA appropriately exercised its
jurisdiction over the appeal and issued a decision on August 7, 2014 denying CSG's
claim.
Separate lawsuits can only be maintained at the appropriate Board of Contract
Appeals and the court of Federal claims so long as the suits are based on different
claims. See Phillios/Mav Coro. v. United States, 524 F.3d 1264, 1272 (Fed. Cir. 2008)
("The presumption that claims arising out of the same contract constitute the same claim
for res judicata purposes may be overcome by showing that the claims are unrelated.',);
Placewav Const. Corp. v. United States,920 F.2d 903, 907 (Fed. Cir. 1990) (.To
determine whether two or more separate claims, or only a fragmented single claim, exists,
the court must assess whether or not the claims are based on a common or related set
of operative facts."); Affiliated Const. Grp. v. United States, 115 Fed. Cl. 607, 612 (201\;
BRC Lease Co. v. United States, 93 Fed. Cl. 67,72 (2010) (holding that if separate
contracting officer decisions were based on substantially the same facts, the election
doctrine barred their appeal to separate forums (citing Glenn v. United States, 85g F.2d
1277, 1280 (Fed. cir. 1988))). In the present case, it is evident that the claims advanced
by Mr. ogunniyi in this court are based on contract No. N55236-13-D-0001 , entered into
between csG and the Navy, and are substantially identical to those included in the appear
to the ASBCA. All of plaintiffls claims, before the ASBCA and this court, stem from the
same allegation that, under the contract, the Navy was required to order any
hydraulic/lube oil flush services on Navy vessels located within a SO-mile radius of San
Diego, California from CSG and, in failing to do so, the Navy allegedly breached the
contract. As the ASBCA already has considered and denied csG's appeal from the
contracting officer's final decision, this court is precluded from reconsidering the matter,
and Mr. Ogunniyi's claim in this court must be dismissed for this reason as well.
11
CONCLUSION
For all of the many reasons discussed above, defendant's motion to dismiss is
GRANTED. Plaintiffs complaint is not properly before this court and must be
DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.
MARIAN BLANK HOR
Judge
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