Emiabata v. United States

0 IGIN
3Jn tbe Wniteb ~tates Qeourt of jfeberal Qelaitns
No. 17-447C
(Filed: August 29, 2018)
FILED
)
PHILIP EMIABATA, d/b/a ) AUG 29 2018
PHILEMA BROTHERS, ) U.S. COURT OF
) FEDERAL CLAIMS
Plaintiff, )
Contract; Wrongful Termination for
)
Default Claim; Motion for Summary
v. )
Judgment, RCFC 56.
)
THE UNITED STATES, )
)
Defendant. )
~~~~~~~~~ )

Philip Emiabata, Pflugerville, TX, pro se.

Alexander 0. Canizares, Trial Attorney, with whom were Chad A. Readier, Acting
Assistant Attorney General, Robert E. Kirschman, Jr., Director, Tara K. Hogan, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant. Shoshana 0. Epstein, United States Postal
Service, Washington, DC, of counsel.

OPINION

CAMPBELL-SMITH, Judge.

The court has before it defendant's motion for summary judgment, accompanied
by an appendix, which is brought pursuant to Rule 56 of the Rules of the United States
Court of Federal Claims (RCFC). See ECF No. 29. Subsequent briefing of the motion
includes: (1) defendant's proposed findings of uncontroverted fact, ECF No. 30;
(2) plaintiffs superseded response brief, and exhibits, ECF No. 40; (3) plaintiffs
corrected response brief, ECF No. 41; (4) plaintiffs response to defendant's proposed
findings of uncontroverted fact, and exhibits, ECF No. 42; and (5) defendant's reply
brief, accompanied by a supplemental appendix, ECF No. 43. For the reasons stated
below, defendant's motion is GRANTED.

7016 3010 DODO 4308 4997
I. Background

This is the second opinion issued in this case. Familiarity with Emiabata v. United
States, 135 Fed. CL 213 (2017) (Emiabata I), which provides the factual context for this
dispute, is presumed. The basic issue now before the court is whether plaintiff, a delivery
contractor for the United States Postal Service (USPS), was properly terminated for
default on Contract No. HCR 450D3. Philema Brothers, a sole proprietorship owned by
Mr. Philip Emiabata, performed the delivery services under the contract from February 5,
2016 through March 25, 2016. The contracting officer, Ms. Jewell R. Powell, terminated
the contract for default on March 23, 2016, effective close-of-business on March 25,
2016.

Defendant argues that five independent grounds justify the default termination,
either solely or in concert, as follows: (1) Philema Brothers failed to provide adequate
proof of insurance; (2) Philema Brothers failed to provide an adequate driving history for
Mr. Emiabata; (3) Ms. Powell reasonably concluded that Mr. Emiabata was a hazardous
driver; (4) Ms. Powell reasonably concluded that Mr. Emiabata was untrustworthy and
unreliable; and (5) Ms. Powell reasonably concluded that Mr. Emiabata had provided
false or deceptive information on his security clearance forms. These asserted grounds
for default provide an efficient framework for the analysis of defendant's motion for
summary judgment. The court now turns to the pertinent standard of review.

II. Standard of Review

A. Pro Se Litigants

The court aclmowledges that Mr. Emiabata is proceeding pro se, and is "not
expected to frame issues with the precision of a common law pleading." Roche v. U.S.
Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Prose plaintiffs are entitled to a
liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(requiring that allegations contained in a pro se complaint be held to "less stringent
standards than formal pleadings drafted by lawyers"). Accordingly, the court has
examined the complaint and plaintiffs briefs thoroughly to discern all of plaintiffs
claims and legal arguments. 1

As defendant notes, Mr. Emiabata previously contested a similar but distinct
default tennination by the USPS where failure to provide proof of insurance was an issue.
See Emiabata v. United States, 102 Fed. Cl. 787 (2012). The court found that there was
no genuine issue of material fact in that case regarding Mr. Emiabata's failure to meet the
contract requirement that he submit adequate proof of insurance to the contracting
officer. Id. at 792. Thus, even though Mr. Emiabata is proceeding prose, he has
familiarity with at least one of the legal issues presented by defendant's motion.

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 B. Motion Brought under RCFC 56

"[S]ummary judgment is a salutary method of disposition designed to secure the
just, speedy and inexpensive determination of every action." Sweats Fashions, Inc. v.
Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed. Cir. 1987) (internal quotations and
citations omitted). The party moving for summary judgment will prevail "ifthe movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter oflaw." RCFC 56(a). A genuine dispute of material fact is one that
could "affect the outcome" of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). "[A]ll evidence must be viewed in the light most favorable to the
nonmoving party, and all reasonable factual inferences should be drawn in favor of the
nonmoving party." Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed.
Cir. 1994) (citations omitted).

"The inquiry performed is the threshold inquiry of determining whether there is
the need for a trial-whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Anderson, 477 U.S. at 250. A nonmovant will not
defeat a motion for summary judgment "unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party." Id. at 249 (citation
omitted). If the evidence of the nonmovant is "merely colorable, or is not significantly
probative, summary judgment may be granted." Id. at 249-50 (citations omitted).

C. Wrongful Termination for Default Claims

When a default termination is challenged in this court, the government bears the
burden of justifying the termination. l..hg,_, Lisbon Contractors, Inc. v. United States, 828
F.2d 759, 765 (Fed. Cir. 1987). Once default has been established, plaintiff bears the
burden of establishing that the default was excused by fault of the government. See, e.g.,
Keeter Trading Co. v. United States, 79 Fed. Cl. 243, 253 (2007) ("If the government
succeeds in proving default, the plaintiff then must demonstrate 'that the default was
excusable under the terms of the contract."' (quoting Airport Indus. Park, Inc. v. United
States, 59 Fed. Cl. 332, 338 (2004))); see also Kennedy v. United States, 164 Ct. Cl. 507,
512 (1964) ("Ifwe hold that [the contractor] defaulted, we must determine whether the
default was or was not excusable."). The wrongful termination for default claim only
implicates the contractor's right to obtain termination for convenience costs. See Malone
v. United States, 849 F.2d 1441, 1445 (Fed. Cir.) ("If the default was improper, the
government is liable for the contractor's termination for convenience costs.") (citation
omitted), modified on other grounds, 857 F.2d 787 (Fed. Cir. 1988).

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III. Analysis

Before turning to the evidence submitted by the parties relevant to the default
termination, the court considers two threshold issues. First, the government argues that
default may be established not only by those problems noted by the agency at the time,
but also on the basis of other problems with performance that were not communicated to
the contractor and which might have been discovered after the contract was actually
terminated. ECF No. 29 at 12-13 (citing cases). Plaintiff argues that establishing default
in this manner is improper because it violates his due process rights. ECF No. 41 at 11
(suggesting that "trial, Discovery, interrogations, Evidentiary hearing, deposition et al."
are needed to respond to the contracting officer's assertion that Mr. Emiabata was
unreliable and untrustworthy). As the court has explained to plaintiff, however, his
opposition to defendant's motion for summary judgment must be presented through
briefing, and attached documentary evidence, not through a hearing or through
discovery. 2 See Order of April 11, 2018, ECF No. 38 at 1 (denying plaintiffs motion to
impeach a government witness and motion for an evidentiary hearing). Once the
government filed its motion for summary judgment, plaintiff had ample time, through the
extensions of time granted by the court and through the acceptance of his filings out of
time, to respond to all of the default grounds asserted by the government. See ECF Nos.
32, 38, 39. There was no denial of due process to plaintiff in this matter.

Further, defendant has correctly cited the governing caselaw regarding default
terminations. The government may justify its termination for default for all of the
reasons noted by the contracting officer at the time and also for any additional valid
reason. See, e.g., Kelso v. Kirk Bros. Mech. Contractors, 16 F .3d 1173, 1175 (Fed. Cir.
1994) (citing Joseph Morton Co. v. United States, 757 F.2d 1273, 1277 (Fed. Cir. 1985));
Pots Unlimited, Ltd. v. United States, 600 F.2d 790, 793 (Ct. Cl. 1979) (stating that "it is
settled law that a party can justify a termination if there existed at the time an adequate
cause, even ifthen unlmown") (citations omitted). Following this binding precedent, the
government's justification for the default termination is not limited to the grounds for
default enumerated in the contracting officer's letter of March 23, 2016.

2 To the extent that plaintiffs response briefmight be read to include an informal
motion to conduct discovery under RCFC 56(d), that motion would necessarily be
denied. All of the relevant information as to the contracting officer's rationale for
terminating the contract, and for establishing default, has been disclosed by defendant to
plaintiff. Inquiry into the contracting officer's subjective mental processes is irrelevant.
Further, the most relevant information concerning Mr. Emiabata' s reliability and
trustworthiness is either in his possession or manifested in the documentary evidence
submitted by the parties to the court.

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 The second threshold issue was raised by plaintiff. Plaintiff argues, somewhat
incongruously for a party asserting a contract claim, that no contract was ever formed
between the USPS and Philema Brothers. ECF No. 41at3, 14-15. As defendant notes in
its reply brief, the lack of a contract would necessitate the dismissal of this suit on
jurisdictional grounds. ECF No. 43 at 16-17. Plaintiffs "lack ofa contract" argument
would, if correct, prevent plaintiff from continuing to press his claims before this court,
which is not the result he seeks in the remainder of his opposition brief.

As defendant notes, however, the documentary evidence of contract formation is
well-established in the record. See ECF No. 43 at 16 (citing ECF No. 29-1at7, 70-71).
As defendant also notes, plaintiff did not contest the specific allegations of fact made by
the government in this regard. 3 Id. at 17. Instead, plaintiff generally argues that Philema
Brothers never received a signed copy of the contract, preventing contract formation.
ECF No. 41 at 3, 14-15; see also Declaration of Sylvia Emiabata, ECF No. 42-8 at 3
(stating that Philema Brothers demanded a copy of the award letter but never received
one).

On the record before the court, there is no reasonable inference that contract
formation did not occur, whether or not Philema Brothers received a signed copy of the
contract. There is no dispute that Mr. Emiabata signed a copy of the contract, which was
submitted to the contracting officer for approval. There is also no dispute that Ms.
Powell signed that contract, and a notice of acceptance, on January 8, 2016. It is
undisputed that contract performance began on February 5, 2016, and that Philema
Brothers received payments for some amount of performance on the contract. Thus,
there is no genuine issue of material fact as to contract formation here, and the parties are
bound by that contract and its terms. The court turns next to the government's
justification of the default termination.

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Plaintiff did not follow the instructions given by the court regarding plaintiffs
response to the government's proposed findings ofuncontroverted fact. See Emiabata I,
113 Fed. Cl. at 221 (requiring specific agreement or disagreement with each of
defendant's numbered paragraphs containing proposed findings ofuncontroverted fact);
Order of May 3, 2018, ECF No. 39 at 2-3 (noting that plaintiff did not tether his response
brief, ECF No. 42, to defendant's numbered paragraphs containing proposed findings of
uncontroverted fact). Instead, plaintiff ignored these instructions and crafted his own
factual allegations which obliquely addressed, perhaps, some of the government's
proposed findings ofuncontroverted fact, although the disorganization and incoherence
of this document were oflittle assistance to the court in the identification of the disputes
of fact in this case. See ECF No. 42 at 14 (explaining that plaintiff globally responded to
defendant's numbered paragraphs 4-47, rather than stating his disagreement or agreement
with each specific proposed finding ofuncontroverted fact, paragraph by paragraph).

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 A. Proof of Insurance

The parties present two different chronologies regarding the insurance
documentation submitted by Philema Brothers to the USPS in its attempt to satisfy that
material requirement of the contract. The USPS relies on its contract file and the
declaration of two USPS employees, whereas plaintiff relies on its records and the
declaration of Ms. Sylvia Emiabata, who describes herself as "do[ing] the paper work"
for Philema Brothers. ECF No. 42-8 at 1. Having reviewed the documents and the
declarations submitted by the parties, the court concludes that the only chronology of
events that can reasonably be inferred from the record before the court is the one
presented by the USPS. Further, even ifthe chronology of events presented by plaintiff
could be credited, despite its lack of documentary support, that chronology also shows
that Philema Brothers was in default for failure to present adequate proof of insurance.

According to the USPS, Philema Brothers submitted insurance documentation in
December 2015 which was defective because it did not confirm that payment had been
made on the insurance contract, and which was redacted to obscure the name of the driver
insured under the contract. ECF No. 29-1 at 108, 117-20. These documents, a redacted
application for insurance and a temporary insurance card, contain a date stamp of
December 16, 2015, from a facsimile server. Id. at 117-20. Ms. Emiabata's declaration
states that insurance documentation was provided to the USPS, by email, on December
16, 2015, at 3:39 PM. ECF No. 42-8 at 2. According to Ms. Belle Gentry, a
Transportation and Supply Management Specialist for the USPS, Philema Brothers' first
attempt to satisfy the proof of insurance requirement, submitted in December 2015, was
ineffective. ECF No. 29 at 15; ECF No. 29-1at107-08.

Subsequently, according to the USPS, additional insurance documentation, with
the same insurance contract number and same December 2015 to December 2016
coverage period, was submitted by Philema Brothers. ECF No. 29-1at107-08, 122-26.
Some of these document pages contain the same facsimile date stamp of December 16,
2015, see id. at 125-26, and had been previously submitted, but other pages, including the
insurance card (no longer temporary), do not have the same date stamp, see id. at 122-24.
Comparing Philema Brothers' two insurance documentation submissions in the USPS
contract file, it is apparent that all of the insurance coverage documents therein reference
a driver other than Mr. Emiabata. Compare id. at 117 (redacting the driver name but not
the birth year of 1963), with id. at 118 (showing Mr. Emiabata's birth year as 1960), with
id. at 122 (showing a driver name of Roland Hunter), and id. at 126 (showing Mr.
Emiabata' s birth year of 1960).

The USPS cited the lack of adequate proof of insurance as a ground for default.
ECF No. 29-1 at 13. The contracting officer had been informed by Ms. Gentry that the
contract file did not contain adequate proof of insurance. Id. A specific flaw in those
insurance documents noted by the USPS was the fact that the insured driver on these

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forms was not Mr. Emiabata, the only driver for whom security clearance paperwork had
been submitted, and one of only two drivers (Philip and Sylvia Emiabata) identified by
Philema Brothers as drivers in its bid for the delivery contract. Id. at 8, 73, 107-08.
Thus, when either or both of the insurance document packets received from Philema
Brothers are considered, defendant concludes that the proof of insurance was inadequate
because the insured driver was not Mr. Emiabata who was the actual operator of the truck
for the contract services. ECF No. 43 at 7-10.

Plaintiff's chronology of events is much less detailed and contains internal
contradictions. See ECF No. 41at2 (referencing a "FAX TO ... Ms. Gentry on
December 16, 2015"); id. (referencing an email to Ms. Gentry sent by Progressive
Insurance on December 17, 2015); ECF No. 42-8 at 2 (declaration by Ms. Sylvia
Emiabata that Philema Brothers sent Ms. Gentry an email at 3:39 PM on December 16,
2015 containing insurance documentation). In essence, plaintiff suggests that its
December 2015 communications with the USPS contained sufficient proof of insurance.
It is clear that plaintiff is referencing the same insurance contract as defendant, because
plaintiff identifies the insurance contract by contract number and coverage dates.
Compare ECF No. 41at3 (citing ECF No. 40-10 at 2-6), with ECF No. 29-1at117-20,
122-26.

In support of plaintiff's argument that Philema Brothers' proof of insurance was
adequate, plaintiff proffers an exhibit which comprises a redacted Philema Brothers'
email dated December 16, 2015, ECF No. 40-10 at 1, along with that email's purported
attachment, ECF No. 40-10 at 2-6, which is a duplicate of the insurance documentation
that the USPS asserts was received later, not on December 16, 2015, see ECF No. 29-1 at
122-26. The court notes that defendant has included in its supplemental appendix an
unredacted copy of the same Philema Brothers' email, date and time stamped December
16, 2015 at 3:39 PM, along with a different attachment, including the temporary
insurance card and a more heavily redacted page of the insurance application discussed
above. See ECF No. 43-1at23-25. The email and its purported attachment in
defendant's supplemental appendix are linked by the facsimile server pagination of a
letter sent by Mr. Emiabata to the USPS, whereas the redacted email and its purported
attachment in plaintiff's exhibit submitted to the court are not.

The court agrees with defendant's observation that there are puzzling
discrepancies in the documents that have been submitted by Philema Brothers to the
USPS and this court, whether the discrepancies relate to multiple layers of redactions
obscuring information or email attachments which exist in multiple (and quite different)
versions. ECF No. 43 at 9 & n.4. These discrepancies detract from the reasonable
inferences that can be drawn from plaintiff's chronology of its insurance documentation
submissions. Similarly, plaintiff's reference to a December 17, 2015 email from
Progressive Insurance to Ms. Gentry, ECF No. 41 at 2; ECF No. 42 at 3, is not supported
by plaintiff's exhibit, which only presents the December 16, 2015 email from Philema

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Brothers to Ms. Gentry, ECF No. 40-10 at 1. The court finds that plaintiffs chronology
of events cannot be reasonably inferred from the declaration and other exhibits presented
in support of that chronology. Although the court credits Ms. Emiabata's sworn
declaration that insurance documentation, of some type, was submitted to Ms. Gentry on
December 16, 2015 as an attachment to an email, ECF No. 42-8 at 2, it is not reasonable
to infer that the contents of that attachment are anything other than the documents in the
contract files maintained by Ms. Gentry. See, e.g., Butler v. Principi, 244 F.3d 1337,
1340 (Fed. Cir. 2001) (noting that a presumption of regularity attaches to agency records
unless these records are contradicted by clear evidence) (citations omitted).

In the end, however, the parties' dispute as to chronology is immaterial, because
the purported email attachment relied upon by plaintiff confirms that all of the insurance
documentation provided by Philema Brothers, whether in December 2015 or at some
later time, was inadequate. There was no proof of insurance that would cover Philip or
Sylvia Emiabata as drivers performing contract services. The contracting officer
reasonably decided that Philema Brothers was in default because its insurance
documentation offered no proof of the requisite protection of the interests of the USPS.

Further, plaintiff has not pointed to any government action which would excuse
this default. Plaintiffs wrongful termination claim fails for this reason, even if no other
ground for default existed. For the sake of completeness, the court will now turn to each
of the other grounds for default asserted by defendant.

B. Motor Vehicle Record (MVR)

The parties agree that Philema Brothers was required by the contract to submit a
five-year driving record (also referred to as an MVR) for Mr. Emiabata to the USPS, and
that this document could not have an issue date that was more than 30 days before the
MVR was provided to the USPS. The parties' agreement ends there. The court begins
with defendant's evidence that no MVR for Mr. Emiabata was ever submitted to the
USPS.

Relying on its contract file and the declarations of two USPS employees,
defendant contends that Philema Brothers was repeatedly advised that the USPS required
plaintiff to submit Mr. Emiabata's MVR, but Mr. Emiabata's MVR was never submitted.
ECF No. 29 at 17; ECF No. 29-1 at 97-98, 101-02, 106, 108. The requests for an MVR
were made both orally and in writing in December 2015, January 2016, and March 2016.
Id. No MVR is among the documents supplied to the court by the USPS; nor is any such
document among the exhibits submitted by plaintiff.

Plaintiff, on the other hand, contends that a valid MVR for Mr. Emiabata was
submitted to the USPS. Plaintiffs corrected response brief asserts that "Plaintiff gave ...
a driving history as required by the contract and specifically directed by USPS." ECF

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No. 41at2. According to plaintiff, an initial MVR was submitted on December 16,
2015, as an attachment to the 3:39 PM email, although it was not valid because of the
requirement for an MVR dated within the previous 30 days. ECF No. 42 at 8-9.
Although other purported elements of the attachment to the December 16, 2015 email are
among plaintiff's exhibits, the invalid MVR is not among them.

According to plaintiff, another MVR, allegedly a valid one, was then submitted to
the USPS in response to a March 10, 2016 letter from Ms. Virgena Wilson, a Network
Specialist for the USPS, who demanded that missing documentation be provided. Id. at
9. According to Ms. Emiabata's declaration, delivery of this MVR was made on March
14, 2016 to "one Tom" at the gate of the postal facility, and this "Tom" later confirmed,
by telephone, that he was going to give the MVR to Ms. Wilson. ECF No. 42-8 at 5. No
documentary evidence of the second MVR, or of the transaction that obtained the MVR
from the State of Texas, was supplied to the court.

As defendant observes, Ms. Emiabata's declaration as to the MVR issue is not
supported by any written documentation. The court notes, too, that none of the versions
of the December 16, 2015 email that are in the record list Mr. Emiabata's MVR as being
included in the attachment to that email, although four other types of documents are
specifically identified as being included in the 11-page attachment. See ECF No. 40-10
at l; ECF No. 42 (asserting that the attachment to the December 16, 2015 email included
eleven pages); ECF No. 43-1 at 23. Further, none of the versions of the attachments to
that email include an invalid MVR. See ECF No. 40-10 at 2-6; ECF No. 43-1at24-25.
Thus, as to the first, invalid MVR, the court has only the bare sworn assertion from Ms.
Emiabata that an invalid MVR was attached to the December 16, 2015 email. ECF No.
42-8 at 2.

As to the submission of a valid MVR, plaintiff has submitted two types of
evidence. First, there is Ms. Emiabata's sworn statement that a valid MVR was delivered
to "Tom" on March 14, 2016, and that "Tom" later confirmed, over the telephone, that he
was going to provide the valid MVR to Ms. Wilson. Id. at 5. This alleged delivery is not
supported by a copy of the MVR allegedly delivered to the USPS.

Second, there is a March 25, 2016 letter sent to the contracting officer by Mr.
Emiabata which responded to the default termination. ECF No. 40-3 at 1-5. Therein, Mr.
Emiabata noted that Ms. Wilson informed him that an MVR was only valid if it was
issued within thirty days of its submission to the USPS. Id. at 1. Mr. Emiabata then
asserted that "I have ordered [the MVR] and in Texas it takes 2-3 weeks." Id.

Thus, the record before the court includes a contemporaneous document authored
by Mr. Emiabata, later submitted by plaintiff to the court as an exhibit supporting his
contentions of fact, which states that, as of March 25, 2016, Mr. Emiabata had ordered an
MVR from the State of Texas and it would be forthcoming. The record also contains a

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sworn statement from Ms. Emiabata that Philema Brothers obtained an MVR from the
State of Texas and hand-delivered it on March 14, 2016. Plaintiff elsewhere contends
that the March 14, 2016 delivery of the MVR was in response to Ms. Wilson's March 10,
2016 letter. ECF No. 42 at 8-9.

In sum, plaintiffs evidence regarding the submission of an MVR to the USPS is
highly contradictory. Either an MVR can be obtained in four days, between March 10,
2016, and March 14, 2016, or it takes two or three weeks. Either the USPS received an
MVR on March 14, 2016, or Mr. Emiabata was still waiting for one to be issued by the
State of Texas on March 25, 2016. Further, none of the factual allegations regarding the
submission of not one but two MVRs are supported by contemporaneous documentation;
indeed, these allegations are contradicted by contemporaneous documentation.

These evidentiary conflicts and the total lack of supporting contemporaneous
documentation are impossible to reconcile with plaintiffs allegations of fact. The court
cannot draw any reasonable inference that a valid MVR was submitted to the USPS
before the contract was terminated for default when it considers the totality of the
evidence submitted by plaintiff, even when viewing that evidence in the light most
favorable to plaintiff. Although the court does not weigh evidence or credibility at this
stage of proceedings, plaintiffs evidence is not of sufficient probative value to create a
genuine issue of material fact on the MVR issue.

Here, the evidence of default is so one-sided that defendant has justified its default
decision in this regard as a matter of law. See, e.g., Anderson, 4 77 U.S. at 251-52 (noting
that a court considering a summary judgment motion may find that the evidence "is so
one-sided that one party must prevail as a matter of law"). Nor has plaintiff pointed to
any fault on the part of the government which would excuse Philema Brothers' failure to
submit a valid MVR for Mr. Emiabata. Because the contracting officer reasonably
concluded that plaintiff was in default for failure to submit a valid driving history for Mr.
Emiabata, the default termination must be sustained on this ground as well.

C. Default Based on Mr. Emiabata's Driving History and Statements He Made
Regarding His Convictions for Traffic Violations

It is undisputed that Mr. Emiabata was involved in a serious accident in Virginia
on April 1, 2014, and that two people died as a result of that accident. ECF No. 30 at
9-10. Mr. Emiabata was convicted of reckless driving in connection with the accident,
and was assessed a $2000 fine. ECF No. 29-1at139-42. The conviction is dated
February 25, 2015. Id. at 141-42. A newspaper article from southwest Virginia that
related the details of the accident and Mr. Emiabata's reckless driving conviction came to
the attention of Ms. Gentry, and she showed this article to Ms. Powell on March 22,
2016. Id. at 80-81, 109. The contract was terminated for default the next day.

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 On two security clearance forms in the USPS contract file, one dated September
22, 2015, the other dated March 10, 2016, Mr. Emiabata answered a question regarding
his traffic violation convictions within the previous five years. The September 2015 form
stated "N/A" for traffic violation convictions within that period, despite the fact that Mr.
Emiabata had been convicted of reckless driving in February 2015. ECF No. 29-1 at 76.
The March 2016 form noted that he had been charged with reckless driving, and under
"action taken," stated "Still under Litigation," despite the fact that Mr. Emiabata had been
convicted of reckless driving in February 2015. Id. at 78.

While it is certainly true that the April 1, 2014 accident spawned a number of civil
suits involving the estates of deceased persons, Mr. and Mrs. Emiabata, various insurance
companies, and the firm that hired Mr. Emiabata's company to deliver the truckload on
the date in question, there is absolutely no evidence that, as of March 2016, any
post-conviction litigation was ongoing in the Virginia court that convicted Mr. Emiabata
of reckless driving. Nor is there any evidence that Mr. Emiabata appealed that reckless
driving conviction before March 2016. Thus, the statement on the security clearance
form that the charge of reckless driving was "Still under Litigation" was false.

Mr. Emiabata's serious accident, his reckless driving conviction and his false
statement on the security clearance form were considered by the contracting officer to
give rise to three different types of default under the terms of the contract. The
contracting officer considered Mr. Emiabata to be a hazardous driver because he failed to
report a reckless driving conviction and "obscured a serious accident." ECF No. 29-1 at
14. Pursuant to the contract's terms, the contractor may be terminated for default ifthat
contractor "allows any employed individual to operate a vehicle in connection with this
contract who has a record indicating that it would be hazardous for that individual to do
so." Id. at 58. The court finds that Ms. Powell was not unreasonable to consider that Mr.
Emiabata was a hazardous driver because he concealed his reckless driving conviction
and, by doing so, concealed the facts of his serious accident, from the USPS. Default
termination is justified on this ground.

Similarly, the contract terms permit termination for default ifthe contracting
officer finds that the contractor is not reliable or trustworthy. Id. Ms. Powell noted Mr.
Emiabata's false answer on the security clearance forms, as well as his failure to submit
driving records and adequate proof of insurance, and concluded that he was not a reliable
or trustworthy contractor. Id. at 14-15. The court finds that Ms. Powell's conclusion in
this regard is not unreasonable, and that the default termination was justified on this
ground as well.

Finally, Ms. Powell cited a policy which allows the USPS to deny access to the
mail, and to deny an application for a security clearance, when "[i]ntentional false
statements, deception, or fraud [are present] in an application for [a security] clearance."
ECF No. 29-1at88. Because the contracting officer considered Mr. Emiabata's

11
statements to be deceptive and misleading, he could not be granted clearance to handle
the mail, and no driver other than Mr. Emiabata had been cleared to handle the mail. Id.
at 13-14. Because Philema Brothers could not continue to perform the contract services,
the contract was terminated for default. Id. at 14. The court finds that Ms. Powell was
not unreasonable when she concluded that the statement on the March 10, 2016 security
clearance form was, at best, misleading and deceptive, if not intentionally false, and that
this false statement was adequate reason to deny Mr. Emiabata access to the mail and to
terminate Philema Brothers' contract for default.

Plaintiff argues that civil litigation in Virginia and Wisconsin justified the notation
"Still under Litigation" on his March 10, 2016 security clearance form. ECF No. 42 at
13. The court, however, cannot construe the question as to traffic violation convictions to
encompass an inquiry into civil litigation. See ECF No. 29-1 at 78 ("In the Past 5 years,
Have You Been Convicted of any Traffic Violations (Other Than Parking) or Currently
have Charges Pending?"). Indeed, the security clearance form specifically asked for the
name of the court where the traffic violation charge was brought and/or adjudged. Id.
Nothing on this form indicates that the focus of the question encompasses civil litigation
in other courts as well as the disposition of the traffic violation charge in the court
identified by the driver. Viewing the evidence most favorably to Mr. Emiabata, he may
not have made an intentionally false statement, but he made a false and misleading
statement nonetheless. Because there is no genuine issue of material fact as to these three
grounds for default, and because plaintiff has not pointed to any government fault which
would excuse these particular grounds for default, the default termination is justified.4

IV. Conclusion

For the reasons stated in this opinion, defendant's motion for summary judgment,
ECF No. 29, filed February 5, 2018, is GRANTED. The clerk's office is directed to
ENTER final judgment in favor of defendant DISMISSING plaintiff's complaint, with
prejudice.

IT IS SO ORDERED.

4 Plaintiff has sharply criticized the USPS employees who were involved in the
administration and termination of the contract. None of plaintiff's factual allegations,
however, identify a government fault which could excuse Philema Brothers' failure to
provide required documentation to the USPS, or Mr. Emiabata's false statement on his
March 10, 2016 security clearance form. Further, plaintiff's contention that the USPS
was required to give notice before terminating the contract for default is not supported by
the terms of the contract governing default terminations. See ECF No. 29-1 at 52, 58.

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