ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
GLJ, Inc. ) ASBCA No. 62964
)
Under Lease No. DACA45-5-16-00059 )
APPEARANCE FOR THE APPELLANT: Gary L. James
Secretary/Treasurer
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Melissa M. Head, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Omaha
OPINION BY ADMINISTRATIVE JUDGE STINSON ON
APPELLANT’S MOTION FOR SUMMARY JUDGMENT
Appellant GLJ, Inc. (GLJ), appeals a contracting officer’s denial of its May 8,
2021, claim, in the amount of $18,810, alleging damages to GLJ’s property arising out of
the subject land lease with the government (R4, tabs 004-005). We have jurisdiction
pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. GLJ submitted
a motion for summary judgment, 1 and the government submitted a response in
0F
opposition. GLJ did not submit a reply brief. For the reasons stated below, the Board
denies GLJ’s motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On September 20, 2016, appellant entered into Land Lease No. DACA45-5-16-
00059 with the U.S. Army Engineer District, Omaha (R4, tab 001 at 000001). Pursuant
to the agreement, GLJ agreed to lease to the government land located in the Cottonwood
Hills Addition to LaGrange Township, Missouri Valley, Harrison County, Iowa (id.).
The purpose of the lease was stated as “Monitoring Wells,” which apparently included
1
Appellant submitted two, one-page documents in support of its motion. The first, dated
October 11, 2021, and entitled “MEMORANDUM IN SUPPORT OF (c)
Summary Judgment Motion,” set forth appellant’s Statement of Undisputed
Material Facts (app. mem.). The second, dated October 28, 2021, and entitled
“Rule 56. Summary Judgment,” set forth appellant’s position regarding the
government’s submission of certain pleadings to the Board (app. mot.).
the “placement and maintenance of environmental monitoring wells” (R4, tabs 001
at 000001, 005 at 000013). Section 3 of the lease stated that the term commenced May 1,
2016, and ran through April 30, 2017, but was to remain in force thereafter from year to
year, until April 30, 2021 (R4, tab 001 at 000001). 2 The yearly rent paid by the
1F
government to GLJ for the land lease was $3,120 (id.).
2. Section 8 of the lease, entitled “Alterations/Restoration,” provided the
government the right “to attach fixtures and erect structures or signs” on the leased
property, which the government also had the right to remove (id. at 000002). Section 8
of the lease granted GLJ the right, prior to termination of the lease, to “require restoration
of the leased premises” (id.). Upon such proper notice, “prior to the expiration or
termination of [the] lease, or prior to relinquishment of possession, whichever first
occurs,” the government, “at its sole election,” had the right to: “either (1) restore the
premises to the same condition as that existing at the time of entering into lease or; (2)
make appropriate settlement to the Lessor representing either the diminution in the fair
market value of the property due to the failure to restore, or the actual cost of restoration,
whichever is the lesser amount” (id.).
3. Section 8 of the lease also provided that the government:
shall not restore the premises, either physically or by payment
in lieu thereof, for damages as a result of reasonable and
ordinary wear and tear, the elements or circumstances over
which the Government has no control, or for alterations, or
damage thereto, which the Government installed at its
expense or the Lessor installed and was reimbursed by the
Government through payment thereof . . . .
(Id.) (bold in original)
4. Section 9 of the lease, entitled “Damages,” provided:
The Government shall be liable only for damage resulting
from negligence or misconduct of Government personnel or
its agents, contractors, or assigns. The Government shall not
be liable for any loss, destruction or damages to the premises
beyond the control and without the fault of negligence of the
Government, including, but not restricted to, acts of nature,
fire, lighting [sic], floods, or severe weather. The parties
2
The government appeal file (Rule 4 file) contains no documentation indicating why the
lease term commenced on May 1, 2016, prior to the date the parties signed the
lease (September 20, 2016).
2
agree that any settlement of damages by the Government, if
any, shall be done at termination of the lease.
(Id.) (bold in original)
5. Section 10 of the lease, entitled “Disputes,” provided that the “lease is subject
to the Contracts Disputes Act of 1978, as amended (41 U.S.C. § 7101 et. al.) and is
governed according to federal law” (id.).
6. By letter dated March 18, 2021, addressed to Heidi Durako, Project Manager,
Army Corps of Engineers, Omaha District, GLJ stated that “[a]ctions by the
Government’s employees or agents in the exercise of the Right-of-Entry have resulted in
damage to the real property,” and that “[t]he provisions of the contract dated April 6,
2017 allow the Owner to make a claim under applicable laws for any damages pursuant
to Right-of-Entry” (R4, tab 002). 3 GLJ alleged a loss of $18,810, based upon a reduction
2F
in crop production for the years 2018-2020 (id.).
7. GLJ calculated its loss as follows:
Prior to the contract the crop production was 175 bales per
year with a value of $66 per bale. In the first year of the
contract (2017), that year also had crop production of 176
bales. However thereafter crop production dropped to a mere
33 in the following years. . . . This shows an average loss per
year of 143 bales valued at $9,460. However, we have
determined that part of this loss was due to sales of some of
the lots which accounts for 48 bales per year loss. (34.5 acres
with avg 1.38 bales per acre)[.] Leaving the net loss of 95
bales each year at $66 each (2018, 2019, 2020) valued at
$6,270 per year for total loss of $18,810 over the 3 years.
(Id.)
8. By letter dated April 16, 2021, Amanda M. Simpson, Acting Chief, Real Estate
Division, Real Estate Contracting Officer, acknowledged receipt of appellant’s March 18,
3
The Rule 4 file contains no copy of a “contract dated April 6, 2017” (R4, tab 002).
Because the record currently contains no other lease or contract, other than the one
identified in SOF ¶ 1, we assume, for purposes of deciding appellant’s motion, that
this represents simply a mistake as to the date of the lease. However, to the extent
appellant’s March 18, 2021, letter is referencing a different document, the parties
may add additional, relevant documents to the Rule 4 file, as litigation of this
appeal proceeds.
3
2021, letter, and requested that appellant “provide proof of the damages, to include
justification and verification such as pictures and/or receipts, etc[.] to prove your losses”
(R4, tab 003).
9. By letter dated May 8, 2021, GLJ responded to Ms. Simpson’s April 16, 2021,
letter, providing photographs of appellant’s land and a spreadsheet in support of its
claimed damages (R4, tabs 004, 007). Appellant stated:
In addressing the damages to the hay ground, the equipment
used for harvesting hay and the position of the wells are
incompatible. Laying down hay in the widest possible swath
speeds drying, improves quality and saves money on harvest.
It is impossible to cut close to the stakes around the wells on
the many lots. Harvest of this crop requires 3-4 cuttings per
year with crop losses from cutting around each well resulting
in the production numbers decreasing. In addition, the
equipment tracks from the contractor are digging deep ruts
which also hinder the harvest. Wide cutting swaths are the
single most important factor in maximizing drying rate and
preserving the quality of the hay.
(R4, tab 004)
10. By letter dated June 14, 2021, Ms. Simpson issued a final decision denying
GLJ’s claim (R4, tab 005). Ms. Simpson stated, in part:
We have reviewed your claim and find that the wells were
installed in the locations shown on the exhibit attached to the
lease and that the Government's operations and activities were
consistent with the normal operations approved by the lease.
Condition 9 of the Army Lease sets forth the standard for
establishing damages under the lease. That condition
specifically states the ‘The Government shall be liable only
for damage resulting from negligence or misconduct of
Government personnel or its agents, contractors, or assigns.’
You have not alleged nor provided any evidence of
Government negligence or misconduct so your claim is
hereby denied.
(Id.)
4
11. On June 25, 2021, GLJ submitted to the Board a notice of appeal. On July 6,
2021, the Board issued a Notice of Docketing, designating the appeal as ASBCA
No. 62964.
DECISION
GLJ, proceeding pro se, seeks compensation for a reduction in crop production
allegedly caused by actions of the government arising out of the lease. In its motion, GLJ
cites Section 9 of the lease, which provides “the Government shall be liable for damages
resulting from negligence or misconduct of Government personnel or its agents,
contractors, or assigns” (app. mem. at 1). Appellant’s two, one-page, summary judgment
submissions, however, offer no factual discussion detailing the government’s alleged
negligence or misconduct during the lease period, or any legal argument establishing that
GLJ is entitled to judgment as a matter of law. Instead, GLJ makes the following request:
“[w]e ask for a review by the Board, of the dates and times The Corp [sic] of Engineers
and their contractor’s presence on the properties that would shed light on the causes of
the damages claimed. The Corp [sic] of Engineers should be able to provide such
information for the 5-year period of the lease” (id.).
The government responds, stating that there exists a “dispute over the material
facts as to whether any crop losses actually occurred, let alone if those crop losses were
caused by the actions of the Government, its employees, or its contractor or agent”
(gov’t opp’n at 4). In support, the government notes that GLJ “essentially admits that it
does not know what the actual facts are related to the installation and operation of the
monitoring well,” that appellant “does not know what actions may have been taken by
Government employees, contractor employees, or agents, or whether those actions caused
damage to its property,” and that GLJ “has not provided any proof of alleged damages”
(gov’t opp’n at 4-5). The government concludes that material facts “preclude the grant of
summary judgment” (gov’t opp’n at 5).
As the party asserting the claim, GLJ has the burden of proof. Korea Eng’g
Consultants Corp., ASBCA No. 61724, 20-1 BCA ¶ 37,538 at 182,285 (citations
omitted). Specifically, GLJ “has the burden of proving the fundamental facts of liability
and damages de novo.” Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994)
(en banc)). GLJ must establish three necessary elements, “liability, causation, and
resultant injury.” Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir.
1991).
As the party requesting summary judgment, GLJ also “bears the burden of
establishing the absence of any genuine issue of material fact . . . .” Mingus Constructors
v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Board Rule 7(c), which sets forth
the procedures for filing a motion for summary judgment in this administrative body,
requires a party to “explicitly state and support by specific evidence all facts and legal
5
arguments necessary to sustain a party’s position” and that “[e]ach party should cite to
the record and attach any additional evidence upon which it relies . . . .” Board Rule
7(c)(2). Appellant’s summary judgment submissions fail to meet the requirements of our
rules. Indeed, appellant essentially seeks to place upon the government, and the Board,
the burden of establishing GLJ’s entitlement to damages, requesting “a review by the
Board, of the dates and times The Corp [sic] of Engineers and their contractor’s presence
on the properties that would shed light on the causes of the damages claimed,” and stating
that the “[t]he Corp [sic] of Engineers should be able to provide such information for the
5-year period of the lease” (app. mem. at 1).
We are mindful of “the long-held principle that pleadings drafted by pro se
litigants are generally held to ‘less stringent standards’ than pleadings filed by trained
attorneys.” Steffen v. United States, 995 F.3d 1377, 1380 (Fed. Cir. 2021) (quoting
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Although the Board accords pro se
litigants leeway administratively, we still must apply the same legal standards to all
parties. Atlantic Maint. Co., ASBCA No. 40454, 96-2 BCA ¶ 28,472 at 142,195.
Here, GLJ’s summary judgment filings allege, but fail to establish, entitlement to
its claim as a matter of law, or the absence of disputed material facts, including whether
government action caused the damages alleged. The current record is simply inadequate
to sustain a finding that actions by the government caused a reduction in GLJ’s crop
production. 4 Accordingly, we hold that appellant, who has the burden of proof, has
3F
failed to demonstrate the absence of any genuine issue of fact and failed to establish
entitlement to summary judgment as a matter of law. First Commerce Corp. v. United
States, 335 F.3d 1373, 1379 (Fed. Cir. 2003) (“Summary judgment is appropriate if there
is no genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law”); Ballistic Recovery Systems, Inc., ASBCA No. 61333, 19-1 BCA ¶
37,223 at 181,202 (“A grant of summary judgment is appropriate when a review of the
record demonstrates that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law”) (citations omitted).
GLJ identifies several instances where the Board directed the government to file
certain pleadings in this appeal, including the government’s answer to appellant’s
complaint, the Rule 4 file, and a response to appellant’s motion for summary judgment
(app. mot. at 1). Appellant requests that we “order the USACE to pay the reasonable
expenses, including attorneys incurred as a result” (id.). However, none of the alleged
failures of the government to timely file certain pleadings, as identified by appellant,
4
We have reviewed the documents contained in the Rule 4 file, and have found no
documents that establish GLJ’s entitlement, as a matter of law, to the damages it
seeks. Of course, appellant filed its motion for summary prior to the conducting of
discovery in this appeal. Presumably, the Rule 4 file will be supplemented with
additional documents produced once discovery is complete.
6
establish GLJ’s entitlement to payment of “reasonable expenses,” nor do they present a
proper basis upon which to grant appellant’s motion for summary judgment. Indeed, we
note that the government has complied with the Board’s orders, and filed the pleadings as
directed. Moreover, a request for attorney’s fees at this stage in the proceedings is
premature and not properly before the Board, as such requests are allowed pursuant to the
Equal Access to Justice Act, 5. U.S.C. § 504. 5 Maintenance Engineers, Inc., ASBCA
4F
No. 34431, 87-2 BCA ¶ 19,915; J.M.T. Machine Co., ASBCA No. 23928, et al., 86-2
BCA ¶ 18,928, aff’d, 826 F.2d 1042 (Fed. Cir. 1987).
CONCLUSION
For the reasons stated above, appellant’s motion for summary judgment is denied.
Dated: April 21, 2022
DAVID B. STINSON
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
5
The Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(2), provides, in pertinent
part, that “[a] party seeking an award of fees and other expenses shall, within
thirty days of a final disposition in the adversary adjudication, submit to the
agency an application which shows that the party is a prevailing party and is
eligible to receive an award under this section . . . .” If GLJ subsequently qualifies
as a prevailing party otherwise eligible under EAJA, it may file a proper
application.
7
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 62964, Appeal of GLJ, Inc.,
rendered in conformance with the Board’s Charter.
Dated: April 21, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
8