from the United States Court of Federal Claims in No.
1:12-cv-00759-MBH, Judge Marian Blank Horn.
Frederick W. Claybrook, Jr., Claybrook LLC, Washington, DC,
argued for plaintiff-appellant. Also represented by Brian
Tully McLaughlin, Crowell & Moring, LLP, Washington, DC;
Robert John Wagman, Jr., Bracewell LLP, Washington, DC.
Patricia M. McCarthy, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for defendant-cross-appellant. Also represented by
Chad A. Readler, Robert E. Kirschman, Jr., Russell James
Upton, Jeffrey Lowry; Jill Bucholz Rodriguez, Defense
Logistics Agency, Ft. Belvoir, VA.
Dyk, O'Malley, and Wallach, Circuit Judges.
International America, LLC ("Securi-force"), a
government contractor, filed suit in the Court of Federal
Claims ("Claims Court") under the Tucker Act, 28
U.S.C. § 1491, and the Contract Disputes Act of 1978
("CDA"), 41 U.S.C. §§ 7101-09. It sought
a declaration that its contract for fuel delivery was
improperly terminated by the Defense Logistics Agency
("DLA" or the "government")-in part for
the government's convenience and in part for default. The
Claims Court held that the CDA provided it with jurisdiction
over both terminations; that the termination for convenience
was improper; and that the termination for default was
proper. Securiforce Int'l Am., LLC v. United
States (Securiforce I), 125 Fed.Cl. 749 (2016).
The Claims Court also denied Securi-force's posttrial
sanctions motions. Securiforce Int'l Am., LLC v.
United States (Securiforce II), 127 Fed.Cl. 386
affirm the Claims Court's determinations except its
determination that it had jurisdiction to adjudicate an
affirmative, declaratory claim with respect to the
termination for convenience; on that one issue, we vacate the
judgment of the Claims Court and remand with directions to
September 2011, Securiforce entered into a requirements
contract with the government to deliver fuel to eight sites
in Iraq. Shortly after the contract was executed, on
September 26, the government terminated the contract for
convenience with respect to two of the eight sites (the
"termination for convenience"). Because Securiforce
intended to supply fuel from Kuwait, the government concluded
that delivery to those two sites without an appropriate
waiver would have violated the Trade Agreements Act of 1979
("TAA"), 19 U.S.C. §§ 2501-81, and that
obtaining a waiver would have taken too long.
in mid-October, the government placed oral orders for small
deliveries to two of the remaining sites, the deliveries to
occur by October 24. In the weeks that followed, however,
Securiforce informed the government that it would not be able
to deliver until, first, early and, then, late November.
Losing confidence that Securi-force would be able to make the
deliveries, the government sent Securiforce notice that it
should offer justifiable excuses for its delays or risk a
termination for default. Securiforce responded, contending
that various government breaches excused the late deliveries,
including the allegedly improper termination for convenience,
the failure to provide required security escorts, the small
size of the orders, and other alleged irregularities
attributable to the government. Unpersuaded, the government
terminated the remainder of the contract for default on
November 15 (the "termination for default").
filed its initial complaint in the Claims Court the following
year, on November 6, 2012, requesting declaratory relief that
the termination for default was improper. On November 16,
Securiforce sent the government a letter requesting a final
decision by the contracting officer ("CO") that the
termination for convenience was improper. On January 16,
2013, the CO denied Securiforce's request because it did
not seek damages in a sum certain, and on January 23
Securiforce amended its complaint in the Claims Court to
include an additional request for declaratory judgment that
the termination for convenience was improper.
a bench trial, the Claims Court issued its findings of fact
and conclusions of law. Securiforce I, 125 Fed.Cl.
749. The court found that it had jurisdiction to review
Securiforce's claims concerning both the termination for
convenience, id. at 764-81, and the termination for
default, id. at 788. Reaching the merits of the
termination-for-convenience claim, the court found the CO
abused her discretion in partially terminating the contract
for convenience and, in doing so, breached the
government's contract with Securiforce. Id. at
781-87. The court then found the termination for default
proper, rejecting Securiforce's claim that its
nonperformance could be excused by the government's
actions, id. at 787-99, and explaining that
Securiforce's failure to perform "was a product of
its own making, " because it had failed to make proper
and timely arrangements to acquire and deliver fuel,
id. at 793. In a follow-up opinion, the court denied
Securiforce's posttrial sanctions motions.
Securi-force II, 127 Fed.Cl. 386.
timely appealed, and we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
review the legal conclusions of the Claims Court de novo and
its findings of fact for clear error. Rasmuson v. United
States, 807 F.3d 1343, 1345 (Fed. Cir. 2015).
first consider whether the Claims Court had subject-matter
jurisdiction to review the termination for convenience.
"Whether the Court of Federal Claims had jurisdiction
under the CDA is a question of law we decide de novo, "
K-Con Bldg. Sys., Inc. v. United States, 778 F.3d
1000, 1004 (Fed. Cir. 2015), but "we review the trial
court's findings of fact relating to jurisdictional
issues for clear error, " John R. Sand & Gravel
Co. v. United States, 457 F.3d 1345, 1353 (Fed. Cir.
2006), aff'd, 552 U.S. 130 (2008). The plaintiff
bears the burden of establishing jurisdiction by a
preponderance of the evidence. Brandt v. United
States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).
prerequisite for jurisdiction of the Court of Federal Claims
over a CDA claim is a final decision by a
contracting officer on a valid claim."
Northrop Grumman Computing Sys., Inc. v. United
States, 709 F.3d 1107, 1111-12 (Fed. Cir. 2013); see
also 28 U.S.C. § 1491(a)(2); 41 U.S.C. §
7104(b)(1). Because the CDA does not define "claim,
" we look to the Federal Acquisition Regulation
("FAR"), which defines a 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 th[e]
contract." FAR 52.233-1(c); see also J.A. 789
(incorporating this clause into Securiforce's contract).
We have explained that for monetary claims, the absence of a
sum certain is "fatal to jurisdiction under the
CDA." Northrop, 709 F.3d at 1112; accord M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d
1323, 1327-29 (Fed. Cir. 2010). Relatedly, "once a claim
is in litigation, the contracting officer may not rule on
it-even if the claim . . . was not properly submitted to and
denied by the contracting officer before it was placed in
litigation." K-Con, 778 F.3d at 1005.
government offers two alternative arguments against the
Claims Court's jurisdiction, both based on
Securiforce's purported failure to obtain a final
decision from the CO before bringing its claim into court.
First, the government contends that the filing of
Securiforce's initial complaint in the Claims Court
ousted the CO of authority to decide the claim presented in
Securiforce's subsequent letter. Second, the government
argues that even if the CO had authority to decide the claim,
Securi-force failed to state a sum certain in its letter to
the CO, as required by the CDA. Because we agree with the
government on the second of these points, we need not reach
noted above, Securiforce submitted a letter to the CO
concerning the termination for convenience on November 16,
2012, ten days after it filed its initial complaint in the
Claims Court. Securiforce's letter to the CO did not
state a sum certain but rather purported to seek only a
declaration that the termination for convenience constituted
a material breach of the contract. The Claims Court
determined that it had jurisdiction because this "letter
constituted a valid claim to the contracting officer for
non-monetary relief." Securiforce I, 125
Fed.Cl. at 775. We disagree.
contractors may in some circumstances properly seek only
declaratory relief without stating a sum certain, they may
not circumvent the general rule requiring a sum certain by
reframing monetary claims as non-monetary. In a related
context, we have been careful to recognize this distinction.
The Administrative Procedure Act ("APA") provides a
cause of action for nonmonetary claims against the
government, 5 U.S.C. § 702, so long as "there is no
other adequate remedy in a court, " id. §
704. The Tucker Act, however, provides exclusive jurisdiction
in the Claims Court for monetary claims exceeding $10, 000.
See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1).
The question in many of our prior cases, then, has been
whether a given claim is properly classified as monetary or
nonmonetary. We and other courts of appeals have consistently
held that litigants may not avoid the Claims ...