United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant's motion to dismiss. Defendant
contends that, although styled as a tort claim,
Plaintiff's claim is based upon and relates to a
procurement contract with the United States, the exclusive
remedy for which is the Contract Disputes Act. According to
the United States, the Act provides a comprehensive statutory
scheme and does not confer jurisdiction upon the Court. The
parties filed responsive briefing, and it is now ripe for the
Court's consideration. Having fully reviewed the record
herein, the Court finds that the facts and legal arguments
are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding delay, and because
the Court conclusively finds that the decisional process
would not be significantly aided by oral argument, the motion
will be decided on the record before this Court and the
hearing set for October 31, 2018, will be vacated. Dist.
Idaho L. Rule 7.1(d). For the reasons that follow, the Court
finds it lacks jurisdiction and will grant Defendant's
motion to dismiss.
about September 12, 2016, the Bureau of Reclamation rented a
manlift from Sunbelt. Compl. ¶¶ 11-12, ECF No. 1.
Plaintiff alleges that “[o]n or about September 16,
2016 at approximately 3:00 P.M., Bureau of Reclamation
employees were transporting the Equipment, ” when
“the trailer, which was carrying the Equipment tipped
over.” Id. ¶¶ 13, 16. Plaintiff
later submitted a tort claim in the amount of $133, 089.00 to
the Bureau of Reclamation “to recover losses, per the
terms of the Rental Agreement between” Plaintiff and
the Bureau of Reclamation. Compl. ¶ 9; Decl. of Matthew
C. Watts, Ex. A.Both parties acknowledge that an express
agreement for the rental of the Equipment was reached. Compl.
¶ 11 (the Bureau of Reclamation “rented” the
Equipment); Ans. ¶ 11 (admitting the allegations in
¶ 11 of the Complaint.) The Office of the Solicitor for
the United States Department of the Interior denied
Sunbelt's claim on behalf of the Bureau of Reclamation on
February 28, 2017. Compl. ¶ 9. Plaintiff filed the
Complaint alleging a tort under the Federal Tort Claims Act.
(Compl., Dkt. 1.)
United States moves to dismiss Plaintiff's tort claim for
lack of jurisdiction, arguing that because Plaintiff's
claim is based upon and relates to a procurement contract
with the United States, the exclusive remedy is under the
Contract Disputes Act. The United States' motion is
predicated on a challenge to jurisdiction as a factual
matter. Plaintiff disagrees, arguing that it has asserted a
negligence claim against the United States, and its claim is
not a contract claim disguised as a tort claim. Plaintiff
contends this action is properly brought as a tort claim, and
therefore the Court has jurisdiction under the Federal Tort
Standard of Review
United States contends the Court lacks subject matter
jurisdiction as a factual matter under Fed. Rule Civ. P.
12(b)(1) and 12(b)(3). A motion to dismiss for lack of
subject matter jurisdiction may either attack the allegations
in the complaint or may be made as a “speaking
motion” attacking the existence of subject matter
jurisdiction in fact. Thornhill Pub. Co. v. Gen. Tel.
& Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When a Rule 12(b)(1) motion attacks the substance of a
complaint's jurisdictional allegations despite their
formal sufficiency, the trial court may rely on affidavits
and other evidence submitted in connection with the motion.
St. Clair v. City of Chico, 880 F.2d 199, 201 (9th
Cir. 1989) (citing Berardinelli v. Castle & Cooke
Inc., 587 F.2d 37, 39 (9th Cir. 1978)).
the issue in a factual attack under Rule 12(b)(1) is the
“trial court's jurisdiction-its very power to hear
the case-there is substantial authority that the trial court
is free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case. In short, no
presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1977). Plaintiff bears the burden of proving that
jurisdiction exists. Mortensen, 549 F.2d at 891.
is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). Statutes waiving
sovereign immunity must be strictly adhered to, and any
waiver must be strictly construed in favor of the United
States. Brady v. United States, 211 F.3d 499, 502
(9th Cir. 2000).
of the United States to suits in tort was waived upon the
enactment of the Federal Tort Claims Act in 1946, which
conferred on the district courts “exclusive
jurisdiction of civil actions on claims against the United
States, for money damages…for injury or loss of
property…caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant….” 28 U.S.C.
those cases not sounding in tort, the Tucker Act conferred
upon the United States Court of Federal Claims the power to
“render judgment upon any claim against the United
States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, or
upon any express or implied contract with the United States,
or for liquidated or unliquidated damages.” 28 U.S.C.
§ 1491(a). 28 U.S.C. § 1941(a)(2) further grants
the Court of Federal Claims “jurisdiction to render
judgment upon any claim by or against, or dispute with, a
contractor arising under” the Contract Disputes Act.
Summit Multi-Family Hous. Corp. v. United States,
124 Fed.Cl. 562, 569 (2015).
Contract Disputes Act (CDA), enacted in 1978,  covers any claim
based upon “any express or implied contract ... made by
an executive agency for-(1) the procurement of property,
other than real property in being; (2) the procurement of
services; (3) the procurement of construction, alteration,
repair, or maintenance of real property; or (4) the disposal
of personal property.” 41 U.S.C. § 7102(a). Under
the CDA, “procurement” means “the
acquisition by purchase, lease or barter, of property or
services for the direct benefit or use of the Federal
Government.” New Era Constr. v. United States,
890 F.2d 1152, 1157 (Fed. Cir. 1989) (quotation and emphasis
sets forth its own jurisdictional requirements. See M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d
1323, 1327-28 (Fed. Cir. 2010). Under the CDA, claims by a
government contractor against the United States must first be
the subject of a decision by the contracting officer, defined
as “any person who ... has the authority to enter into
and administer contracts and make determinations and findings
with respect thereto.” 41 U.S.C. §§ 601(3),
605(a). The decision by the contracting officer may be
appealed to an agency board of contract appeals or to the
United States Court of Federal Claims. 41 U.S.C. §§
607(d), 609(c). Further appeals from these bodies must be