Docket No. PSBCA No. 6862

OPINION OF THE BOARD

This opinion addresses a claim of Philip Emiabata, doing business as Philema Brothers, for late-slip payments based on a contract that he had with the Postal Service. After we issued a decision disposing of all other monetary claims brought by Mr. Emiabata based on that contract, Philip Emiabata, d/b/a Philema Brothers, PSBCA No. 6862 (Jan. 31, 2024), the Postal Service moved for summary judgment on this claim.

Mr. Emiabata opposed the motion and moved for discovery on the already-resolved monetary claims, not the late-slip claim. For the reasons below, we deny Mr. Emiabata’s motion for discovery and grant the Postal Service’s motion for summary judgment.

FINDINGS OF FACT

Mr. Emiabata and the Postal Service were parties to Contract No. 450D3, which required him to transport and deliver mail between Cincinnati and Milford, Ohio. The contract was fixed price with monthly payments based on an annual rate “for services rendered.”

The contract also allowed for certain additional payments. For example, if the Postal Service caused any of Mr. Emiabata’s drivers to wait “over and above that which was called for in the contract,” Mr. Emiabata could submit a PS Form 5466, Late Slip, within 90 days of occurrence. That form had to be accompanied by a properly completed invoice, which was subject to verification or audit by the Postal Service. If his submission was approved, Mr. Emiabata would be entitled to additional payment at an hourly rate of $30.53. (Appeal File, Exhibit 1 at 1–2, 7–8, 27–28, 94). ¹

The contract also included a claims and disputes clause, which stated that the contract was subject to the Contract Disputes Act (CDA) and defined “claim” as “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.” That clause also required that a contractor claim be made in writing and submitted to the contracting officer for a written decision. (Id. at 39).

There is some ambiguity about the contract award date. Mr. Emiabata alleged that he was awarded the contract on or about December 29, 2015 (Compl. ¶ 2). But the contracting officer did not accept his proposal until January 8, 2016 (Exhibit 1 at 1–4). Contract performance did not begin until February 5, 2016 (Exhibit 5 at 70; Respondent’s Statement of Uncontested Facts ¶ 5, Feb. 16, 2024).

The Postal Service terminated the contract for default effective March 25, 2016 (Id.).

Thereafter, Mr. Emiabata lost access to the vehicle he used for the contract. According to Sylvia Emiabata, who was one of the business owners, the late slips at issue were left in that vehicle. (Appellant Brief Showing, Correction to its Claim dated June 19, 2017, States a Sum Certain, Oct. 18, 2022 (Appellant’s Sum Certain Brief); Sylvia Emiabata Decl., Oct. 18, 2022; Respondent’s Statement of Uncontested Facts ¶ 10, Feb. 16, 2024).

PROCEDURAL HISTORY

Mr. Emiabata unsuccessfully appealed his termination for default twice at both the Court of Federal Claims and the Federal Circuit. ² Emiabata v. United States, 2022 WL 1055435, at *4 (Fed. Cir. 2022) (Emiabata V); Emiabata v. United States, 792 Fed. App’x 931, 937–39 (Fed. Cir. 2019) (Emiabata III); Emiabata v. United States, 151 Fed. Cl. 610, 615–16 (2020) (Emiabata IV); Emiabata v. United States, 139 Fed. Cl. 418 (2018) (Emiabata II).

In the complaint for his first suit at the Court of Federal Claims, Mr. Emiabata also demanded $2.6 million based on various legal theories, which the court collectively referred to as the contract-based claims. Emiabata v. United States, 135 Fed. Cl. 213, 217–18 (2017) (Emiabata I). The court dismissed those claims for lack of jurisdiction because they had not first been presented to a contracting officer. Id. The Federal Circuit upheld the dismissal. Emiabata III, 792 Fed. App’x. at 936.

Between the filing of the above complaint and the court’s decision in Emiabata I, Mr. Emiabata submitted a monetary claim to the contracting officer. ³ In that claim, dated June 19, 2017, Mr. Emiabata listed six numbered bases, each with an amount. At the end of, but within, numbered item four, he stated: “All totaling $221,986.49 plus Late-Slip payments.” He did not otherwise refer to late-slip payments. (Exhibit 21 at 173–74).

The Postal Service failed to timely issue a contracting officer’s final decision, but Mr. Emiabata did not file an appeal based on a deemed denial. Instead, he waited three and a half years before sending a letter reminding the Postal Service of his claim. (Exhibit 26 at 226–27).

Two months later, the contracting officer issued a final decision denying Mr. Emiabata’s claim. The contracting officer stated he had “thoroughly reviewed” the claim but did not raise the lack of a sum certain for the late-slip claim. (Exhibit 27 at 230–32).

Mr. Emiabata timely filed a notice of appeal from that final decision, which we docketed as PSBCA No. 6862.

The Postal Service then filed combined motions for partial summary judgment and partial dismissal. It did not argue that Mr. Emiabata failed to state a sum certain even though it clearly acknowledged that he had asked for an unspecified amount for late slips. Based on legal precedent at the time, the Board asked the parties to address whether we lacked jurisdiction because Mr. Emiabata failed to state a sum certain (Order, Sept. 29, 2022).

In a brief filed in response to our order, Mr. Emiabata acknowledged that he had not stated a sum certain for the late-slip payments. He further responded that the amount sought for late slips was $4,216 (80 hours multiplied by $52.70). ⁴ In a declaration by Sylvia Emiabata that he attached to the brief, she explained that the late slips had been inside a vehicle that Mr. Emiabata lost because the Postal Service’s failure to pay for his services left him unable to pay vehicle fees. (Appellant’s Sum Certain Brief; Sylvia Emiabata Decl., Oct. 18, 2022).

We granted the Postal Service’s motions in part, resolving all of Mr. Emiabata’s claims except for the claim for late-slip payments. We found that the late-slip claim remained because the Postal Service had waived the contract’s requirement of a sum certain, but we allowed the parties to brief whether the late-slip claim is appropriate for summary judgment.

The Postal Service then moved for summary judgment for the late-slip claim. Mr.
Emiabata filed a brief opposing the motion and a “Motion for Rule 26 Motion.”

DECISION

Discovery
In his “Motion for Rule 26 Motion”—presumably referring to Rule 26 of the Federal Rules of Civil Procedure—Mr. Emiabata requested discovery before we rule on the Postal Service’s motion. He made a similar request in his opposition to the Postal Service’s motions for partial dismissal and partial summary judgment. As we stated in our decision on those motions, discovery may be allowed before ruling on a motion for summary judgment if the nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition. Fed. R. Civ. P. 56(d). Again, Mr. Emiabata did not provide an affidavit or declaration with his opposition.

Even if we were to treat Mr. Emiabata’s motion as an affidavit or declaration, the motion is essentially a general objection to our previous decision. And his discovery requests are for the claims that we have already decided, not the late-slip claim. For instance, he wants discovery about a check that the Postal Service issued and recalled. That claim was already resolved. Mr. Emiabata’s motion contains no reasons why he cannot present facts essential to his opposition to the late-slip claim. While we are mindful that he is proceeding as a self-represented litigant, we cannot grant his request without a specified reason relevant to the late-slip claim. Accordingly, we deny his motion.

Postal Service’s Motion for Summary Judgment
We now turn to the Postal Service’s motion for summary judgment, keeping in mind that self-represented litigants, such as Mr. Emiabata, are not required to frame issues with the precision of a common law pleading. Emiabata III, 792 Fed. App’x at 935; Emiabata IV, 151 Fed. Cl. at 615; Emiabata II, 139 Fed. Cl. at 420. Their pleadings should be liberally construed. Id.

In conducting a summary judgment inquiry, the Board is guided by the standards of Federal Rule of Civil Procedure 56(c). Monroe Const. Corp., PSBCA No. 1518, 86-3 BCA ¶ 19,274. We must determine “whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). We grant summary judgment when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Anderson, 477 U.S. at 250; Franklin Wilborn, PSBCA No. 6260, 10-2 BCA ¶ 34,608 (citing Vivid Tech., Inc. v. American Sci. & Eng’g, Inc., 200 F.3d 795, 806 (Fed. Cir. 1999)). All reasonable inferences and presumptions are resolved in favor of the non-moving party. Sammy’s Delivery Service, Inc., PSBCA No. 6431, 13 BCA ¶ 35,283.

Mr. Emiabata’s opposition to the Postal Service’s motion focuses on the claims disposed of in our prior decision, not the late-slip claim. He did not file a statement of genuine issues or otherwise contest the Postal Service’s statement of uncontested facts.

Summary disposition of the late-slip claim is appropriate because there are no material facts in dispute, and, as a matter of law, Mr. Emiabata is not entitled to the $4,216 he seeks. The contract required Mr. Emiabata to submit the late slips within 90 days of the occurrences, accompanied by properly completed invoices, to receive additional payment (Exhibit 1 at 28).

Regardless of the 90-day deadline, it is undisputed that Mr. Emiabata has not provided the required late slips or invoices. His claim therefore fails for lack of proof. Accordingly, as a matter of law, Mr. Emiabata is not entitled to additional payment.

The Postal Service also argued that the CDA’s statute of limitations bars Mr. Emiabata’s late-slip claim. Respondent’s Motion for Summary Judgment at 9 (Feb. 16, 2024). In view of our decision set forth above, we need not address that argument.⁵

ORDER

For the above reasons, Mr. Emiabata’s motion for discovery is denied, and the Postal Service’s motion for summary judgment is granted.