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                                         No. 17-447C                      FILED
                                  (Filed November 11, 2017)
                                                                         NoV 17 20[


PHILIP EMIABATA, d/b/A                                                 #3;8o",u3t?^l'
PHILEMA BROTHERS,
                                                   Contract; Wrongful Termination for
                     Plaintiff,
                                                   Default Claim; No Jurisdiction Over
                                                   Breach and Tort Claims; Conversion
                                                   of RCFC 12(bX6) Motion to RCFC 56
                                                   Motion.
THE UNITED STATES,

                     Defendant.



Philip Emiabata, Pflugerville, TX, pro    se.


Emma E. Bond,r Trial Attorney, with whom were Chad A. Rcadler, Acting Assistant
Attomey General, Robert E. Kirschman. Jr., Director, Brian A. Mizoguchi, Assistant
Directoi, Commercial Litigation Branch, Civil Division, United States Department of
Justice, washington, DC, for defendant. Shoshana Epstein, United states Postal Service,
Washington, DC, of counsel.

                                    OPINION AND ORDER

CAMPBELL-SMITH, Judge.

       The court has before it defendant's motion to dismiss, filed June 26,2017, which
            -Claims to Rules
is brought pursuant            12(b)(l) and 12(b)(6) of the Rules ofthe united states court
of Federal          (RCFC). Def.'s Mot., ECF No. I1.2 After a response brief from
plaintiff and a reply brief from defendant were filed, the court permitted plaintiff to file a



I      A new attorney was recently assigned to this case for defendant: Alexander O.
Canizares.

2      All document referencesand page citations are to the electronic record preserved
in the court's Case Management/Electronic Case Files (CMI€CF) system'




                ?0I? I'r50 0000 13'{h           0814
sur-reply brief. ECFNos. 12, 13, 17. For the reasons stated below, defendant's motion
is GRANTED in part and DENIED in part.

I.     Factual Background3

       Plaintiff Philip Emiabata, doing business as Philema Brothers, competed for and
won a United States Postal Service (USPS) delivery contract, HCR450D3. Compl., ECF
No. I at 1. There is some ambiguity as to the contract award date. The award date for
the contract is alleged by the government to have been December 29, 20 1 5. Def.'s
App'x, ECF No. 11-1 at 17 , 51. Plaintiff acknowledges that he was given an informal
notice to proceed, orally, on December 14,2015, by a contract specialist, not the
contracting officer (CO). ECF No. I at l. The contract appears not to have been
executed by the CO, however, until January 8,2016. Def''s Supp. App'x' ECF No' 13-1
at 7-8. Plaintiff asserts that he delayed performance because he had not yet received an
"executed letter of Award of the contract by the contracting officer . . . as required by the
contract." ECF No. I fl 3.

        Performance ofthe contract did not begin until February 5,2016. Id. fl 4. The
delay in performance was later described by the CO as a delay of "thirty nine (39) days
after fcontract] award." ECF No. I l-l at 5l; see also Compl. Ex., ECF No. 1-l at 1'
Plaintiff attributes much of the delay to the unavailability of USPS personnel to complete
the procedures required for Philema Brothels to begin contract performance. ECF No. 1
                                                      as "permitting [plaintiff] time to
u 4. The CO, on the other hand, describes the delay
complete . . . vehicle inspection and an opportunity to meet other mandatory contract
submittals, inspection and compliance issues." ECF No. 1l-1 at 51.

        In any event, by March 23,2016, the CO cited a number of deficiencies in
plaintiff s compliance with the submission of documentation required at or neax the start
of contract oerforrnance:

       (l)     "[R]equired documentation for a security clearance and investigation has
               not yet been submitted."

       (2)     "[Y]our temporary Commercial Driver License was valid only until March
               t4,2016;'
       (3)     "[Ylou provided false information in response to Question 22 on PS Form
               2025. While you stated that litigation was ongoing regarding    a   Virginia


3      The facts recited here are taken from the complaint and defendant's appendix of
exhibits, and are undisputed unless otherwise noted. The court also takes judicial notice
of plaintiff s February 25,2015 reckless driving conviction, which is also undisputed.
Sei Def.'s Supp. App'x, ECF No. l3-l at 5-6; Pl.'s Sur-Reply, ECF No' l7 at4-5'


                                               2
              reckless driving charge, it has come to the Postal Service's attention that, in
              fact, you were convicted of reckless driving in February 2015, in an
              accident that killed 2 people."

       (4)    "[O]ur inability to obtain from you the mandatory forms, specifically your
              [Motor Vehicle Record ("MVR")] dating back ftve years, your 3881 direct
              deposit form, the necessary insurance documents, and the name ofyour
              substitute driver" gives reason to terminate this contract.

Id. The CO then terminated the contract for default, as of March 25,2016. Id. The
termination letter noted Mr. Emiabata's right to "bring an action directly in the United
states court of Federal claims within twelve months from the date you receive this
decision." Id. at 52.

II.    ProceduralBackground

        Rather than file a claim with the co presenting any claim for monetary damages
related to the USPS's administration of the contract, Mr. Emiabata waited until March 24,
2017 to hle a complaint in this court.4 Plaintiffls motion to proceed in forma pauperis
was granted on May 22,2017. A few days before the govemment's response to the
.olnpluint was due, plaintiff filed a claim with the CO demanding the same monetary
relieithat is requested in his March 24,2017 complaint before this court. Compare ECF
No. I at S, wittr gCf No. I l-l   at66-67. Plaintiff reports that he has not received a final
decision from the co on the June 19, 2017 certified claim. See Pl.'s Resp., ECF No. l2
at 6 (stating that the "Contracting Officer. . . failed to issue her decision")'

       In this court, defendant's motion to dismiss was filed on June 26,2077. The
motion is focused largely on this court's jurisdiction over plaintiff s contract-basec
claims. The jurisdictional
              -of
                             challenge to the complaint is governed by the "presentment"
requirement       the contract Disputes Act of 1978 (CDA), which requires that written
contractor claims be presented to a contracting officer for final decision before such
claims may be litigated in this court. 4l u.s.c. $ 7103 (2012). The government also
argues thai plaintiif s complaint fails to state a claim for wrongful termination for default
beiause plaintiff falsified a submission to the USPS on the subject of his reckless driving
conviction in February 2015. The motion is fully briefed and ripe for a decision.




a       The complaint contains no mention of a certified claim submitted to the CO prior
to March 24,2017. To the extent that plaintiff s briefs attempt to informally amend the
complaint and present a new factual allegation regarding the submission to the CO_ of a
certified claim-before March24,20l7, those allegations are discussed in Section IV(B) of
this opinion.
III.   Standard of Review

       A.     Pro Se Litigants

        The court acknowledges 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). Pro se plaintiffs are entitled to a
liberal construction of their pleadings. See Haines v. Kemer, 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 plaintiff s briefs thoroughly to discem all of plaintiff s
claims and legal arguments.s

       B.     Motions Brought under RCFC l2(bXl)

        When reviewing a complaint to determine its jurisdiction over a plaintiff s claims,
this court must presume all undisputed factual allegations to be true and construe all
reasonable inferences in favor ofthe plaintiff. Scheuerv. Rhodes,4l6U'S' 232,236
(1974), abrogated on other grounds by Harlow v. Fitzgerald,45T U.S' 800' 814-15
(1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d
                                                                 '746'747 (Fed' Cir' 1988)
(citations omitted). However, plaintiff bears the burden of establishing subject matter
jurisdiction, Alder Terrace. Inc. v. United states, 161 F.3d 1372, 1377 (Fed. Cir. 1998)
                                                                               (1936)), and
iciting McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189
 must do so by a preponderance of the evidence, Reynolds, 846F.2d at 748 (citations
 omitted). tfjuriidiction is found to be lacking, this court must dismiss the action. RCFC
 12(hX3).

       C.     Motions Brought under RCFC 12(bX6)

       It is well-settled that complaint should be dismissed under RCFC 12(b)(6) "when
                                 a
the facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v
United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). when considering a motion to

5       Mr. Emiabata, proceeding pro se, filed three previous suits in this court alleging
wrongful termination of mail delivery contracts: Case Nos. 06-902C;07-653C; and
09-339C. These suits, two of which were consolidated, were dismissed on summary
judgment. see Emiabata v. United States, 102 Fed. cL.787 (2012); Emiabatav. United
Slalgc, SO Fed. Cl. 22 (2009). Mr. Emiabata, proceeding
                                                           pro se, has also brought a
 number of appeals before the Postal Service Board of contract Appeals premised on mail
 delivery contiact disputes. p4, Apoeals of Nova Express, PSBCA No' 5102' 08-l
 B.C.A. (CCH) nj3763 (Jan. 10, 2008). Mr. Emiabata, proceeding pro se, has brought a
 number of actions in federal district courts, as well. !4, Emiabata v. Marten Transp..
 Ltd.,5'74 F. Supp. 2d 912 (W.D. Wis. 2007)'
dismiss brought under RCFC l2(bX6), "the allegations ofthe complaint should be
construed favorably to the pleader." Scheuer, 416 U.S. at236. The court, however, must
not mistake legal conclusions presented in a complaint for factual allegations which are
entitled to favorable inferences. See. e.g., Paoasan v. Allain, 478 U.S. 265,286 (1986)
("[W]e are not bound to accept as true a legal conclusion couched as a factual
allegation.") (citations omitted). The allegations of the complaint must state a plausible
claim for relief to survive a motion to dismiss filed under Rule 12(bX6)' See. e.g.,
Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) ("To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face."'(quoting Bell Atl. Com. v. Twombly, 550 U.S. 544'
s7o (2007))).

IV.    Analysis

       A.     No CDA Jurisdiction over Plaintiff   s   Contract-Based Claims

        Plaintiff asserts that the CDA provides the jurisdictional support for his
contract-based claims.6 ECF No. l2 at 5 (citing 41 U.S.C. $$ 7103(a), 7104(b) (20\2)).
Defendant notes that the USPS has adopted CDA requirements through its own
regulations. See ECF No. 1l at 14 n.3. The contract states that it is subject to the cDA.
ECF No. 1 I - I at 3 8. The court, therefore, can only exercise its jurisdiction over
plaintiff s contract-based claims if the cDA presentment requirement is met. England v.
Swanson Grp.. Inc., 353 F.3d l3'75, 1379 (Fed. Cir. 2004) (Swanson) ("We have held'
based on the statutory provisions, that the jurisdiction over an appeal ofa contracting
officer's decision is lacking unless the contractor's claim is first presented to the
contracting officer and that officer renders a final decision on the claim'") (citation
omitted).

        Except for the wrongful termination for default claim, which has been the subject
of a final decision of the CO, see ECF No. l-l at 1-2, none of the claims set forth in the
complaint were presented to the CO for a final decision before plaintifffiled suit in this
court. The complaint is not easy to parse, but the prayer for relief clearly states a demand
for monetary damages in the amount of $2.6 million. ECF No. I at 5' The component


6      For the purposes of its analysis, the court, like the govemment, distinguishes
between the wrongful termination for default claim, which is founded on the termination
of the contract on March 23,2017 as expressed in the CO's termination letter, and all
other claims that might be discerned in the complaint arising out of the USPS's
administration of the mail delivery contract at issue, HCR 450D3. The court employs the
term "contract-based" claims to describe these claims -- whether they sound in contract,
breach of contract, tort, or any other any legal theory -- that are distinct from plaintiffs
wronsful termination for default claim.
parts ofthe claim appear to include total "invoice" amounts of$6601'86 ($5901.86 plus
$700) and total contract charges of5215,434.63 (559,280.77 plus S156,153.86). Id.
There is also a demand for "reliance" damages of$76,500. Id. Finally there are
unspecified amounts of damages claimed for "Late-slip payments," "Punitive Damages,
Expectation Damages[,] ... Compensatory Damages... [and] Consequential Damages."
Id.

        The legal theories underlying these claims for monetary damages are presented, in
broad strokes, throughout the complaint. A representative list of the legal theories to
which plaintiff alludes in the complaint is as follows: breach of contract, wrongful
discharge, undue influence, govemment-caused delay, fraudulent misrepresentation,
failure to exercise reasonable care, negligence, misconduct, wrongful interference with a
contract, breach of the duty ofgood faith and fair dealing, and the tortious infliction of
pain, suffering and emotional distress. See generally ECF No. 1. As defendant notes' the
only theory of recovery which is encompassed in the CO's final decision is wrongful
termination for default (which appears to be represented in the complaint as "wrongful
discharge"). ECF No. l l at 16-17. Separate and distinct claims, such as those based on
fraud, bieach of contract, unfair dealings, govemment-caused delay, negligence and other
torts, were not presented to the CO before plaintiff sought relief in this court. Id. For this
reason, defendant argues, the court lacks jurisdiction over -- and must dismiss -- every
claim in the complaint that is not a claim for wrongful termination for default. The court
agrees.

        The presentment requirement of the cDA is well-established. E.9., swanson, 353
F.3d at 1379. Belatedly submitting a certified claim to a co once a claim is in litigation
is not a cure for failing to present a claim to the co before filing suit in this court. see
 Sharman co. v. United States ,2F.3d 1564, 1572 (Fed. cir. 1993) (noting that once a
claim is in litigation, any action by a CO on a later-submitted claim is a "nullity" and
cannot establish jurisdiction over the claim in this court). Thus, the certified claim
prcsented to the co on June 19,2017, ECF No.       ll-l  at 66-67, cannot serve to establish
jurisdiction in this court over any of the claims filed in the complaint on March 24' 2017 .

        The govemment argues, and the court must agree, that the scope of plaintiff s
wrongful termination for default claim, over which this court has jurisdiction, does not
include the various contract-based claims expressed in the complaint. 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). When the co issued the termination letter, the contractor could challenge
that final decision as a wrongful termination for default; the sole remedy available under
the contract for such claim is termination for convenience costs. See ECF No. 1l at
 l8-19 (citing Securiforce Int'l Am.. LLC v. United States, 125 Fed. C|.749,775-76
(2016); M.E.S.. Inc. v. United States, 104 Fed. CL.620,636 (2012); Armour of Am. v.
United States, 69 Fed. Cl. 587, 590-91 (2006); Advanced Materials. Inc. v. United States,
46 Fed. Cl. 697 ,701 (2000)); see also ECF No. 1 l-l at 34 (Termination for Default
clause in the subject mail delivery contract, HCR 450D3).

        In other words, if plaintiff intended to file claims in this forum under mail delivery
contract HCR 450D3 requesting anything other than termination for convenience costs,
he was obliged to submit a certified claim for his contract-based claims to the CO before
filing suit on March 24,2017. See Daff v. United States, 78 F.3d 1566, 1575 (Fed. Cir.
 1996) (holding that a contractor's challenge to a termination for default properly
encompassed the contractor's claim for termination for convenience costs, but did not
include a separate contractor claim for the value of inventory remaining in the
govemment's possession). Because Mr. Emiabata did not take this prerequisite step, all
of his claims in the complaint, other than his wrongful termination for default claim, are
baned by the presentment requirement of the CDA. Swanson, 353 F.3d at 1379; DaI[' 78
F.3d at 1575;Malone, 849 F.2d at1445. The courttherefore GRANTS defendant's
motion to dismiss in part, because none of the claims that can be discerned from the
 complaint, except for the wrongful termination for default claim, fall within this court's
jurisdiction.

       B.     Informal Amendment of the Complaint

        The complaint contains no mention of a certified claim submitted to the CO prior
to March 24,2017. See supra note 4. Defendant, in its motion to dismiss, argued that
this failure to present a claim to the CO prior to filing suit barred most of plaintiff s
claims in this court. ECF No. 11 at l4-16. In plaintifls response brief, Mr. Emiabata
countered that a version of the certified claim had been presented to a contracting
specialist to forward to the CO before suit was commenced in this court. ECF No. 12 at


        Defendant, in its reply brief, argued that plaintiff s new allegation of fact was
unsupported by documentation or "any particularizing information (such as the date of
the alleged submission)." Def.'s Reply, ECF No. 13 at 5. In plaintiff s sur-reply brief,
Mr. Emiabata asserts that the certified claim allegedly supplied to the contracting
specialist was delivered on or about February 14,2017. Pl.'s Sur-Reply, ECF No. l7 at
2. In his submissions to the court, plaintiffhas repeatedly contended that he has the right
to amend his complaint. ECF No. I at 5; ECF No. 12 at 5;ECF No. 17 at2. Ln the two
briefs filed by plaintiff, he asserts his right to amend the complaint in the text
immediately adjacent to his allegations of fact as to the submission of a certified claim to
the CO prior to March 24,2017. See ECF No. 12 at 5; ECF No. 17 at 2.

       Plaintiff, although proceeding pro se, is an experienced litigant who has repeatedly
sued the USPS regarding his mail delivery contracts. See supra note 5. The court
therefore presumes that Mr. Emiabata is aware that representations made to the court
must be truthful and that sanctions under RCFC 11 would apply if a party misrepresented
facts to the court. Thus, the court finds that plaintiff, in his briefs filed on July 14, 2017
and August 31,2017, attempted to informally amend his complaint to include an
allegation that he supplied a certified claim to the USPS contracting specialist on or
around February 14,2017 for delivery to the CO. Construing the complaint to have been
so amended, for the purpose ofthe court's jurisdictional analysis, the court further finds
that the new factual allegation does not forestall the dismissal of plaintiff s contract-based
claims.

        The government argues that a naked assertion that Mr. Emiabata submitted a
certified claim to the USPS contracting specialist so that it would be forwarded to the CO
does not satisry plaintiffls burden to establish jurisdiction over his contract claims. ECF
No. 13 at 5. The court agrees with the govemment that a plaintiff who fails to present a
single document in support of his allegations that a certified cDA claim was submitted to
an agency has not carried his burden to establish this court's subject matter jurisdiction
over a CDA claim. See. e.e., Diversified Maint. Sys.. Inc. v. United States' 110 Fed. Cl.
 612,617 (2013) (dismissing a cDA claim for lack ofjurisdiction due to the lack ofany
evidence that the purponed claim was submitted to the contracting officer); Capelouto v.
United States, 99 Fed. Cl. 682,693 (2011) (dismissing a suit for lack ofjurisdiction
because the plaintiff in that case "failed to prove that he submitted a CDA claim to any
contracting officer responsible for his alleged contracts"); L.A' Ruiz Assocs.. Inc. v.
United States, 94 Fed. Cl. 768,772 (2010) (dismissing a CDA claim for lack of
jurisdiction because the "Plaintiff ha[d] not presented any evidence which would lead the
 Court to conclude that the letter was ever actually submitted to. or received by, the
 contracting officer for review."); cf. Anwar Alsabah Co., ASBCA No. 59737-957,l5-l
 B.C.A. (CCH) fl 35907 (Mar. 3, 2015) (dismissing appeal for lack ofjurisdiction because
 the contractor failed to provide evidence that he submitted a properly certified claim to
 the contracting officer). Here, defendant clearly disputed the allegation that plaintiff
 submitted a certified claim to the USPS before March 24,2017, and plaintiff, in response,
 has provided no evidence that shows that such a certified claim was indeed submitted on
 or about February 14,2017. In these circumstances, plaintiffhas failed to meet his
 burden to establish jurisdiction over his contract-based claims.

       The submission of a certified claim on February 14,2017, moreover' would be of
no assistance to plaintiff. This suit was filed on March 24,2017. No deemed denial of a
claim submitted on February 14,2017 could occur before April 15,2017 , sixty days later.
See 4l U.S.C. $ 7103(0(2). This is so because a CDA suit filed less than sixty days after
the submission of a certified claim to the CO, upon which there has been no final
decision, cannot proceed on a "deemed denial" basis and is not within the jurisdiction of
the court. see, e.g., Kelloeg Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 46,
56 (2014) (explaining the preclusive effect of 4l U.S.C. $ 7103(f) on claims filed within
sixty days ofthe submission ofa claim to the contacting officer); Tidewater Contractors.
Inc. v. United States, 107 Fed. CL.779,783 (2012) (holding that "the court lacks subject
matter jurisdiction to decide the allegations in plaintiffs complaint because the
contracting officer had not yet issued a final decision at the time plaintiff filed its
complaint in this court" (citing 41 U.S.C. $ 7103(0(2)(8); Swanson, 353 F.3d at 1379))'
Thus, even ifplaintiffhad supplied evidence that a certified claim had been presented to
the CO on or about February 14, 2Ol7 , there still would be no jurisdiction in this court for
plaintiff s contract-based claims.

       C.     Failure to State a Claim under RCFC 12(bX6)

         The govemment argues that plaintiff "fails to dispute that he provided
false information regarding his reckless driving conviction" to the USPS. ECF No. l I at
22. The govemment contends, further, that this "false and incomplete information"
stated on a USPS form rendered Mr. Emiabata "ineligible to access the mails and unable
to personally perform the contract." ld. at24. Forthis reason, the govemment argues
ttrat the CO;siermination for default was proper and that plaintiff s wrongful termination
for default claim fails to state a plausible claim for relief. Id. at 22.

        In the court,s view, however, plaintiff disputes the govemment's allegation that
Mr. Emiabata's statements conceming his reckless driving conviction were false. See
ECF No. 17 at 4 (stating that "[t]o any [r]easonable persons will tell that plaintiff don't
conceal his [r]eckless diiving conviction"). For the dispute as to whether plaintiff
falsified th. tiport of his driving record, both parties rely on their interpretation ofa
document attached to defendant's reply brief, ECF No. l3-l at3-4, which was not
attached to the complaint. See ECF No. 13 at 9-10; ECF No. l7 at 4. The court cannot
consider materials outside of the pleadings when rendering a decision on a RCFC
 12(bX6) motion. RCFC 12(d). The proper procedure, in this instance, is that the parties
be given notice that the termination for default dispute should be briefed under RCFC
                                                                                            56
anJsummary judgment standards.T See id. ("All parties must be given a reasonable
opportunity io present all the material that is pertinent to the motion [for summary
                                                                   motion to dismiss' in part'
;udgment1.";. For this reason, the court DENIES defendant's
i..-uur. difendant's request that plaintiff s wrongful termination for default claim be
                                                                                    judgment.
 dismissed under RCFC 12(bX6) must be converted to a motion for summary

V.      Summary Judgment Proceedings

       The court sets forth here its directions for summary judgment proceedings, both
 substantive and procedural.



 ?       The court observes that similar disputes were resolved on summaryiudgment in
 olaintiff s earlier suits filed in this court. See suDra note 5.
      A.     Legal Issues

        There are two elements of proof relevant to plaintiffls wrongful termination for
default claim -- first, whether there is proof of contractor default, and, second, whether
there is proof of excusable contractor default. See. e.g., Kennedy v. United States, 164
Ct. Cl. 507, 512 (1964) ("If we hold that [the contractor] defaulted, we must determine
whether the default was or was not excusable."); Vansuaxd Constr.. Inc. v. United States,
 123 Fed. Cl. 130, 132 (2015) (noting that a termination for default may be converted to a
termination for convenience if the contractor's default is excused by government fault);
Keeter Trading Co. v. United States, 79 Fed. C1.243,253 (2007) ("If the govemment
succeeds in proving default, the plaintiff then must demonstrate 'that the default was
excusable under the terms ofthe contract."' (quoting Airport Indus. Park. Inc. v. United
States, 59 Fed. Cl. 332,338 (200a))); see also Malone,849 F.2d at 1445 (noting that
contractor default may in some cases be excused by government actions that materially
breached the contract). The parties should address in their briefs both ofthese elements
of proof.

        The rationale offered by the USPS for the termination for default is provided in the
co's termination letter, dated March 23,2016. Both parties should base their arguments
as to contractor default on evidence that either supports or refutes the allegations made in
that letter. Similarly, any allegations of excusable contractor default should be supported
by evidence of govemment action that excused the default.

       B.     ProceduralRequirements

       Because the government bears the initial burden to show contractor default, the
govemment shall file the initial summary judgment brief. Subsequent briefing shall
iollow pursuant to the rules of the court. The court notes that summary judgment
procedures are described in RCFC 56, and that motions for summary judgment are
governed generallY bY that rule.

       Nonetheless, the undersigned judge requires, in addition to adherence to the
procedural requirements set forth in RCFC 56(c), separately filed statements ofthe facts
lhut u." relied upon by the movant and non-movant. The parties' findings of fact must
meet the following requirements:

       (l)    In addition to its motion, the moving or cross-moving party must file a
              separate document titled Proposed Findings of Uncontroverted Fact
              which should contain:

              (A)    concise, separately numbered paragraphs setting forth all ofthe
                     material facts upon which the party bases its motion and as to which
                     the party believes there is no genuine dispute; and



                                             l0
              (B)    citations to the opposing party's pleadings or to documentary
                     evidence, such as affidavits or exhibits, filed with the motion or
                     otherwise part of the record before the court.

      (2)     In addition to its opposition, the opposing party must file a separate
              document titled Response to the Proposed Findings of Uncontroverted
              Fact which should contain, immediately below each finding:

              (A)    a statement  indicating whether the opposing party agrees or
                     disagrees with the frnding as written;
              (B)    the basis for any objection to the finding;
              (C)    a proposed revision ofthe finding; and
              (D)    any proposed findings of uncontroverted fact as to any relevant
                     matters not covered by the moving party'

       (3)    Stipulation in Lieu ofProposed Findings of Uncontroverted Fact' The
              parties need not file the documents identifred in numbered paragraphs (1)
              and (2) of this order if they file, no later than the time of the initial motion
              for summary judgment, a comprehensive stipulation of all the material facts
              upon which theY intend to relY.

         Thus, to ensure efhcient consideration of the parties' requests for summary
judgment, the parties must consult both the rules of this court and the requirements set
 forth in this order.

VI.    Conclusion

        For the reasons stated in this opinion, plaintiff s claims, except for his wrongful
termination for default claim, must be dismissed for lack of subject matter jurisdiction
,rno.r ncrc l2(bx1). Defendant's RcFc l2(bx6) challenge to plaintiff s wrongtul
termination for default claim, however, must be converted to a motion for summary
judgment under RCFC 56. Accordingly, defendant's motion to dismiss, ECF No' l l,
 filed June 26,2017, is GRANTED in part and DENIED in part'

      Defendant shall FILE its Motion for Summary Judgment and its separate
document titled Proposed Findings of Uncontroverted Fact on or before December 22,
2017. Subsequent briefing shall follow pursuant to the court's rules. All briefing shall
COMPLY with the instructions provided in Section V of this order'

       IT IS SO ORDERED.




                                               ll
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