Balbach v. United States , 119 Fed. Cl. 681 ( 2015 )

3Tn tbe mlniteb ~tates ~ourt of jfeberal ~laims
No. 14-712C FILED
(Filed: January 9, 2015) JAN - 9 2015
************************************* U.S. COURT OF
FEDERAL CLAIMS
*
DAN BALBACH, * ' I •· •. '·> ·~ ,_..;.,,...
*
Plaintiff, ** Rule 83.l(a)(3); Corporation Must
v.
* be Represented by Counsel;
* Contract Disputes Act; One Year
Statute of Limitations.
THE UNITED STATES, *
*
Defendant. *
*
*************************************
Dan Balbach, Boise, Idaho, pro se Plaintiff.
Joshua D. Schnell, Trial Attorney, with whom were Joyce R. Branda, Acting Assistant
Attorney General, Robert E. Kirschman Jr., Director, Donald E. Kinner, Assistant
Director, Commercial Litigation Branch, U.S. Department of Justice, Washington, D.C.,
Heather R. Hinton-Taylor, Attorney, Office of the General Counsel, U.S. Department of
Agriculture, Of Counsel, for Defendant.
OPINION AND ORDER
WHEELER, Judge.
On October 16, 2014, the Government filed a motion to dismiss Plaintiff Dan
Balbach's complaint. Mr. Balbach had filed his complaint on August 6, 2014 on behalf
of his company, Treasure Valley Forest Products LLC, challenging the termination of
Treasure Valley's contract for cause on August 2, 2013 by the Department of Agriculture
Forest Service. The Government asserted in its motion that Mr. Balbach's complaint
should be dismissed because: (1) his pro se status precludes him from representing
Treasure Valley in this Court; and (2) the Court lacks subject matter jurisdiction under
Rule 12(b)(l) because his complaint is barred by the Contract Disputes Act's 12-month
statute of limitations. 41 U.S.C. § 7104(b)(3). Mr. Balbach did not file a response to the
Government's motion to dismiss despite being granted a time extension by the Court
until December 8, 2014. For the reasons stated below, the Court grants the Government's
motion on both of the grounds asserted.
Factual Background
On January 13, 2009, the United States Department of Agriculture Forest Service
awarded Contract No. AG-0256-C-09-9001 to Treasure Valley Forest Products, LLC
"for a Stewardship project in the Boise National Forest by the name of 'Mores South.' "
Pl.' s Compl. ii 7. Mr. Balbach is the owner and operator of Treasure Valley. Id. ii 1.
Under the contract, Treasure Valley was to remove timber and perform forest
management services, including "installation of culverts and decommissioning of roads;
thin[ing] the forests and reduc[ing] hazardous fuels and uncharacteristic fire behavior by
reducing conifer tree density and woody debris; improv[ing] desirable tree qualities,
species mix, and characteristics of the leave stand; and reduc[ing] the understory conifer
ladder fuels and remov[ing] the suppressed understory Douglas-fir and ponderosa pine."
Id. ii 8. The contract also called for periodic inspections by the contracting officer and
provided that Treasure Valley "was to maintain progress at a rate that [would] assure"
completion of the work within three years, by January 13, 2012. Id. iii! 13-14; Ex. A at 4.
Based upon documents accompanying Plaintiffs memorandum filed on August
12, 2014 shortly after the complaint, the Forest Service amended the contract seven
times, and in Amendment 6, it extended the completion date to October 31, 2013. Id. iii!
22-23; Ex. A at 4. The contracting officer, Brian Wharton, also requested Mr. Balbach to
submit a schedule in the "form of a progress chart" that would "indicate[] appropriately
the percentage of work scheduled for completion by any given date during the period."
Id. ii 23. On October 2, 2012, the contracting officer sent Mr. Balbach a Cure Notice
indicating that Treasure Valley would be terminated for default if it failed to complete the
contract by the October 31, 2013 date. Id. ii 24; Ex. B.
On August 2, 2013, the Forest Service terminated Treasure Valley's Mores South
contract for cause, claiming that Treasure Valley had failed to make adequate progress on
the work required by the contract. Id. ii 31; Ex. C (Mr. Wharton alleged "Mr. Balbach's
performance was untimely because progress did not comply with the Revised Schedule"
which listed "August 2, 2013 as the date of completion for Unit 27"). According to
Plaintiff, Mr. Wharton also claimed that Treasure Valley's performance was deficient for
the following reasons: (1) Treasure Valley failed to cut and haul three loads per day; (2) it
was not in strict compliance with the number of required employees on site; (3) it did not
have specific equipment onsite in working order; (4) the company did not have a contract
to sell un-merchantable lumber; and (5) it failed to meet the original completion date. Id.
ii 33. Treasure Valley appealed to the United States Civilian Board of Contract Appeals
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("CBCA") on November 4, 2013 , but the appeal was dismissed as untimely because it
was filed more than 90 days after the termination notice was given. Id.~ 6; Def.'s Mot.
at 3. The CBCA determined that Mr. Balbach had received the termination notice on
August 2, 2013 by email, hand delivery, and certified mail. Treasure Valley Forest
Prods. v. Dep't of Agric., CBCA 3604, 14-1BCA~35,549, at 2.
Discussion
I. Rule83.l(a)(3)
Under Rule 83.l(a)(3), "[a] corporation appearing before the United States Court
of Federal Claims ... must be represented by an attorney." Affourtit v. United States, 79
Fed. Cl. 776, 779-80 (2008) (noting the Federal Circuit held that "policy determinations
could not overcome the long-standing rule ... that a corporation may appear in federal
court only [through] licensed counsel"); see also Talasila, Inc. v. United States, 240 F.3d
1064, 1066 (Fed. Cir. 2001 ). 1 Thus, a prose plaintiff cannot represent a corporation. See
Rule 83. l(a)(3) ("An individual who is not an attorney . . . may not represent a
corporation, an entity, or any other person in any proceeding before this court. The terms
counsel, attorney, and attorney of record include such individuals appearing pro se.").
The Court cannot waive this rule, even for cases of severe financial hardship. Affourtit,
79 Fed. Cl. at 780. If a corporation does not obtain counsel, "the ordinary remedy is to
dismiss [the] complaint for lack of prosecution." Alli v. United States, 93 Fed. Cl. 172,
177 (2010).
Here, the Forest Service entered into the Mores South contract with Treasure
Valley, a corporation. See Pl. 's Ex. A, Dkt. No. 3 (listing Treasure Valley Forest
Products, LLC as the contractor on the project); Def.'s Mot. at 2. The Forest Service did
not enter into the contract with Mr. Balbach in his individual capacity. Mr. Balbach is
not a lawyer, and thus, he cannot represent Treasure Valley in this Court on a pro se
basis. Treasure Valley is not represented by an attorney as required by Rule 83.l(a)(3).
Accordingly, Mr. Balbach' s complaint must be dismissed for lack of prosecution.
II. Standard of Review for a Motion to Dismiss
A litigant can challenge the Court's power to "adjudicate in specific areas of
substantive law" by bringing a Rule 12(b)(l) motion to dismiss. Affourtit, 79 Fed. Cl. at
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Affourtit v. United States, 79 Fed. Cl. 776, 779 (2008) and Talasila, Inc. v. United States, 240 F.3d
1064, 1066 (Fed. Cir. 2001), cite to Rule 8l(d)(8) and Rule 83 .l(c)(8), respectively. The Rules of the
Court of Federal Claims were amended in 2010, leading to the current renumbering of the rule as Rule
83.l(a)(3).
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778. When deciding whether to grant a motion to dismiss, the Court must "assume all
well-pled factual allegations are true and indulge in all reasonable inferences in favor of
the nonmovant." Anaheim Gardens v. United States, 444 F.3d 1309, 1314-15 (Fed. Cir.
2006). Although "the pleadings of a pro se [p ]laintiff are held to a less stringent standard
than those of litigants represented by counsel," Lewis v. United States, 99 Fed. Cl. 772,
777 (2011 ), "they must nonetheless ' affirmatively and distinctly' plead that the court has
subject matter jurisdiction," Del Rio v. United States, 87 Fed. Cl. 536, 538 (2009). "The
plaintiff bears the burden of establishing a court's subject matter jurisdiction." Record
Steel & Constr., Inc. v. United States, 62 Fed. Cl. 508, 513 (2004).
A. Subject Matter Jurisdiction
The Tucker Act gives the Court jurisdiction over "any claim by or against, or
dispute with, a contractor arising under section 10( a)(1) of the Contract Disputes Act
[("CDA")]. " Id. at 518 ; see also 41 U.S.C. § 7104(b)(l) ("a contractor may bring an
action directly on the claim in the United States Court of Federal Claims, notwithstanding
any contract provision, regulation, or rule of law to the contrary"). A claim under the
CDA is "a written demand or written assertion by one of the contracting parties seeking,
as a matter of right, the payment of money in a sum certain, the adjustment or
interpretation of contract terms, or other relief arising under or relating to this contract."
Record Steel, 62 Fed. Cl. at 518 (stating the word "claim" though not defined in the
CDA, is defined in FAR Part 52); see also Alliant Techsystems v. United States, 178 F.3d
1260, 1265 (Fed. Cir. 1999) ("the claim must be a demand for something due or believed
to be due").
Here, the Mores South contract incorporated the CDA, which Mr. Balbach cites as
giving the Court jurisdiction over his claims. See Pl. ' s Compl. iJ 5 ("[t]he Contract and
the [contracting officer' s] final decision incorporates the Contract[] Dispute[ s] Act of
1978 . .. providing this Court with jurisdiction over the matter"); Def.'s Mot at 5.
Through his complaint, Mr. Balbach makes a written demand for relief, claiming that he
is owed $60,000 for an improper termination for cause of his company ' s Mores South
contract. Pl.' s Compl. at 9.
B. Statute of Limitations
Although ordinarily the CDA would provide the Court with jurisdiction over Mr.
Balbach's complaint, a claim must be brought within the CDA's one year statute of
limitations. 41 U.S.C. § 7104(b)(3); Uniglobe Gen. Trading & Contracting Co. v. United
States, 115 Fed. Cl. 494, 505 (2014) (" [t]he one-year statute of limitations ... does not
begin to run . . . until the contractor has received from the contracting officer a final
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decision on its claim"). Treasure Valley received the final decision from the contracting
officer on August 2, 2013, when the termination notice was emailed and hand-delivered
to Mr. Balbach. See Pl.'s Compl. i-!i-15 , 31 , 35; Def.'s Mot. at 5 ("there is no dispute that
Treasure Valley received the contracting officer's final decision on August 2, 2013 ").
Accordingly, Mr. Balbach had until August 4, 2014 to bring his complaint. See Wood-
Ivey Sys. Corp. v. United States, 4 F.3d 961 , 964 (Fed. Cir. 1993) (holding that Rule 6
"applies to the computation of time for filing an action when the statutory filing period
ends on Saturday, Sunday, or a holiday"); see also Def.'s Mot. at 5 (August 2 and 3, 2014
were weekend days). Mr. Balbach, however, waited until August 6, 2014 to file a
complaint in the Court, two days after the statute of limitations had run. See Pl.' s Comp!
at 1. Accordingly, his claim was untimely and his case must be dismissed for lack of
subject matter jurisdiction.
Conclusion
For the foregoing reasons, the Government's motion to dismiss is GRANTED.
IT rs so ORDERED.
THOMAS C. WHEELER
Judge
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