Appeals of

SHARON ROEDEL

Under Contract No. HCR 184EV

PSBCA Nos. 6347 and 6368

APPEARANCE FOR APPELLANT
Sharon Roedel

APPEARANCE FOR RESPONDENT
Eugenia A. Izmaylova, Esq.

OPINION OF THE BOARD
ON RESPONDENT’S MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, TO DISMISS

            Respondent, United States Postal Service, has filed a motion for summary judgment, asserting that because it was required by law to terminate a mail transportation contract with Appellant, Sharon Roedel, these appeals cannot afford Appellant relief.  In the alternative, Respondent requests that we dismiss these appeals for lack of jurisdiction.  In this regard, Respondent argues that a meeting of the minds between the parties did not occur, leaving them without a cognizable contract on which our Contract Disputes Act jurisdiction may be based.  We deny the motion.[1]

FACTUAL BACKGROUND

           On May 14, 2010, Respondent’s contracting officials suspended performance of a mail delivery contractor who had become hospitalized.  That day, Respondent solicited replacement service by telephone (Declaration of R. Alston (Alston Decl.) ¶¶ 2, 4; Declaration of R. Ledbetter (Ledbetter Decl.) ¶ 4).  Also on May 14, 2010, Respondent’s contract transportation specialist, Ms. Alston, and Ms. Roedel agreed by telephone that Appellant would perform a replacement contract for a six-month term at an agreed rate (Alston Decl. ¶ 5; Answer ¶ 1 (admitting Appellant was awarded the contract in May)).  Based on this May 14 oral agreement, and before a written contract was presented to Ms. Roedel, she began performing the service (Appeal File Tab (AF) 5 at 16; Ledbetter Decl. ¶ 7). 

           Respondent maintains that Ms. Alston informed Ms. Roedel during their May 14 discussions that the contract terms included a Postal Service right to terminate the contract upon 24 hours’ notice (Alston Decl. ¶ 5).  In contrast, Appellant maintains that Ms. Alston did not inform her that the Postal Service could terminate the contract.  To the contrary, Ms. Roedel asserts that before she agreed to the contract, she asked and was told specifically by Ms. Alston that the contract term would last six months “and no shorter,” and that “there was no way for the previous contractor to come back” before that six-month term had expired “no matter if the previous contractor was to leave the hospital” (S. Roedel Sworn Statement of Genuine Issues (Roedel Statement) ¶ 1). 

           On May 20, 2010, Respondent’s contracting officials were informed that the suspended contractor had been discharged from the hospital and was available to resume performance (Alston Decl. ¶ 7).  Respondent lifted the suspension of the prior contract effective May 22, 2010 (Ledbetter Decl. ¶ 7; Alston Decl. ¶ 7). 

           On May 20, 2010, Respondent transmitted a letter to Appellant, styled as a contracting officer’s final decision, informing Appellant that her contract was terminated without cost, effective close of business on May 21 (AF 3).  Appellant received the termination letter on May 22 (AF 5 at 78 (Track and Confirm print-out evidencing delivery, matching tracking number on termination notice)). 

           Appellant also received an unsigned written contract form from Respondent, which included the following provision,
           This contract may be terminated by the U.S. Postal Service upon notice of not less than 24 hours, or by the supplier upon not less than 15 days, and without the allowance of any indemnity or extra pay in lieu of indemnity to the supplier.

(AF 5 at 15).  However, the record does not reflect the date on which Appellant received the unsigned contract form.  Appellant signed the contract form on May 22, 2010 (Ledbetter Decl. ¶ 5; AF 5 at 17, 39, 51), notwithstanding its inclusion of the termination provision because she was told that she would not be paid for the time she had performed the contract if she did not do so (Roedel Statement ¶ 2).  Appellant felt compelled to sign because she had quit her full time job by that point (Roedel Statement ¶ 2; AF 5 at 50).

           On June 10, 2010, Respondent’s contracting officer signed the written contract (Ledbetter Decl. ¶ 5; AF 5 at 15, 17, 39, 43-44).  Respondent paid Appellant $785.76 for seven days of service she had performed (Ledbetter Decl. ¶ 7; AF 5 at 16). 

           On July 12, 2010, Appellant transmitted a notice of appeal letter to the contracting officer asserting that a termination right was not part of their agreement.  Appellant’s letter requested that she receive the “pay for the contract in full.” (AF 2).  The notice of appeal was forwarded to the Board, and docketed as PSBCA No. 6347.

           Respondent’s answer included a motion to dismiss for lack of jurisdiction asserting that Appellant had not submitted a monetary claim to the contracting officer.  The Board then issued an Order requiring Respondent to explain its contention that Appellant’s demand for Respondent to pay the contract in full was insufficient to constitute a monetary claim.  Rather than do so, Respondent informed the Board that the contracting officer intended to issue a final decision in response to Appellant’s July 12, 2010 letter (November 5, 2010 Order; Respondent’s December 10, 2010 Status Report), obviating the necessity of action in response to its motion to dismiss.  On December 13, 2010, Respondent’s contracting officer issued a final decision denying the monetary claim included in Appellant’s July 12 notice of appeal, and Appellant timely appealed.  The appeal was docketed as PSBCA No. 6368, and the appeals were consolidated (February 4, 2011 Order). 

           On April 19, 2011, Respondent filed its second dispositive motion, the pending Motion for Summary Judgment, or in the Alternative, to Dismiss.  Appellant responded in the form of a Statement of Genuine Issues made under penalty of perjury, and Respondent filed a reply on July 15, 2011.

DECISION

           Summary judgment is proper where the moving party, here Respondent, demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.  See Franklin Wilborn, PSBCA No. 6260, 10-2 BCA ¶ 34,608.  In considering Respondent’s summary judgment motion, we do not resolve factual disputes, but rather ascertain whether material facts are in dispute.  See General Dynamics Corp., ASBCA Nos. 32660, 32661, 89-2 BCA ¶ 21,851.  In doing so, we must draw all reasonable inferences against Respondent as the moving party.  See Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987).  Further, in deciding a motion for summary judgment, we possess discretion, and will not grant the motion unless we are reasonably certain that judgment can be rendered without the necessity of a trial.  See D’s Nationwide Industrial Services, Inc., PSBCA No. 3071, 93-1 BCA ¶ 25,454.  Although we recognize that summary judgment can be a significant means of conserving judicial resources, it must carefully be employed, since “an improvident grant may deny a party a chance to prove a worthy case.”  See Monroe Construction Corp., PSBCA No. 1518, 86-3 BCA ¶ 19,274, quoting D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d 1144, 1146 (Fed. Cir. 1983). 

           In this case, drawing all reasonable inferences against Respondent, we find that disputed issues of material fact preclude summary judgment and require a trial to resolve.  Granting Respondent’s summary judgment motion would require us to find that the parties orally agreed during their May 14 discussions that Appellant would provide the service at issue subject to a no-cost termination right in favor of Respondent.  There are at least two fatal obstacles precluding such a conclusion. 

           First, Appellant has submitted testimony which disputes this issue of material fact.  In fact, Appellant’s testimony presents the starkest of contradictions to Respondent’s version of events.  A trial is needed to allow us to determine which version to accept. 

           Second, Respondent’s evidence in support of its motion does not include an assertion that its officials informed Appellant, or that the parties agreed, that any termination right would be without compensation to Appellant.  Accepting Respondent’s version of events, which we are precluded from doing at this point in the proceedings, could result only in a conclusion that it could terminate the contract, while the monetary consequences resulting from such a termination remain indeterminable.  In short, the factual dispute concerning the discussion and agreement or lack thereof about a termination right precludes entry of summary judgment.    

            Respondent argues that a statute, 39 U.S.C. § 5001, authorizes it to issue emergency mail transportation contracts, but limits such authority by requiring it to terminate those contracts when the emergency ceases.  Section 5001 provides in relevant part:

            [T]he Postal Service may make arrangements on a temporary basis for the transportation of mail when, as determined by the Postal Service, an emergency arises.  Such arrangements shall terminate when the emergency ceases and the Postal Service is promptly able to secure transportation service under other provisions of this title.

             The statute is silent as to whether an emergency contractor terminated pursuant thereto is entitled to costs or damages.  We are not aware of any precedent interpreting Section 5001 to preclude the award of costs or damages to the terminated contractor.[2]  Whether such a termination results in costs or damages to the contractor therefore depends on the terms of the contract, which as described above, requires additional factual development.

             In the alternative, Respondent moves to dismiss these appeals claiming that we lack jurisdiction because a dispute as to whether a no-cost termination provision was included in the contract between the parties demonstrates that they lacked a meeting of the minds as to a material element of the contract.  It argues that an enforceable contract therefore could not have come into existence, and that without such a contract we lack Contract Disputes Act jurisdiction.  Appellant, of course, argues that the parties orally agreed that the contract lacked a termination provision.  Further, she maintains that Respondent’s subsequent payment to her for the services she performed demonstrates that Respondent also believed that an enforceable contract existed.  Respondent’s reply submission argues that its payments to Appellant do not preclude this argument.  It further suggests the possibility that an oral contract may have been formed and its payment based thereon.

           As the Federal Circuit has instructed, “[w]hether a legally enforceable contract has been formed by a meeting of the minds depends upon the totality of the factual circumstances.”  Texas Instruments Inc. v. United States, 922 F.2d 810, 815 (Fed. Cir. 1990).  Here, as we have found the existence of disputed facts whose resolution will determine our jurisdiction to address the merits of Appellant's claim, we must deny the motion to dismiss.  See Judie Jackson, PSBCA No. 6180, 11-1 BCA ¶ 34,630.  A trial will be necessary to determine the totality of the factual circumstances implicated by Respondent’s meeting of the minds argument, even if applicable.  Scheduling of the hearing will be established by separate Order.

CONCLUSION

           Respondent’s motion for summary judgment, or in the alternative, to dismiss these appeals is denied. 

                                                                        Gary E. Shapiro
                                                                        Administrative Judge
                                                                        Board Member

I concur:                                                          I concur:
William A. Campbell                                     David I. Brochstein
Administrative Judge                                    Administrative Judge
Chairman                                                       Vice Chairman

[1] Factual conclusions herein are based on the record as it currently exists and are reached solely for purposes of deciding this motion.

[2] We do not understand Respondent’s references to internal guidelines concerning termination of emergency contracts to argue that the guidelines constitute binding regulations, or otherwise are binding upon Appellant, and accordingly we do not analyze such guidelines.