January 9, 1998
Appeal of
RICHARD R. WILSON
Under Contract No. HCR 33965
PSBCA No. 3469
APPEARANCE FOR APPELLANT:
Richard R. Wilson
APPEARANCE FOR RESPONDENT:
Larry D. Blanchard, Esq.
OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION
In Richard R. Wilson, PSBCA No. 3469, 96-2 BCA ¶ 28,366 (“Opinion”), the Board considered eight claims asserted by Appellant under his mail delivery contract with Respondent. Appellant claimed entitlement based on the directions of Respondent’s officials that he perform certain delivery services that the contract did not require him to perform. The Board decided one claim in Appellant’s favor and denied recovery on the remaining seven claims. Appellant filed a Motion for Reconsideration challenging the Board’s denial of three of his claims.
After the Motion was filed, it came to light that during discovery Respondent had failed to provide certain relevant documents that fell within discovery orders issued by the Board. The Board then required Respondent to make the original contract files available for Appellant’s review. Appellant was provided an opportunity to submit additional evidence in the record and to supplement his argument, which he did. Appellant’s supplemental material has been considered in deciding this Motion for Reconsideration.
During the pendency of the Motion for Reconsideration, Appellant filed a Second Motion for Summary Judgment,[1] seeking judgment in his favor based on Respondent’s discovery abuses. Ruling was reserved, and that motion will be addressed as part of this Opinion on reconsideration.
Motion for Reconsideration
Background
Appellant’s contract for the delivery of mail in LaBelle, Florida, required him to deliver the mail to the customers’ curbside mailboxes, which he could do from his car. Parcels too large to leave in the mailbox and accountable mail -- for which Appellant was required to obtain the addressee’s signature acknowledging receipt -- were to be delivered to the customer if the customer came to the mailbox. Otherwise, a notice was to be left informing the customer that the item could be picked up at the post office or redelivered. Shortly after Appellant’s contract was renewed in 1989, the LaBelle Postmaster began requiring Appellant to get out of his vehicle and walk to the door of residential customers and into business customers’ premises to deliver accountable mail and large parcels. Appellant promptly and repeatedly complained that his contract did not require him to perform such service and that requiring him to leave his vehicle to make deliveries exposed him to serious risk of harm because his route was in a dangerous neighborhood. Respondent’s officials never rescinded the requirement, and eventually Appellant stopped performing. Respondent terminated the contract for default effective October 28, 1992, but on April 13, 1993, the contracting officer converted the termination to one for the convenience of the Postal Service and paid Appellant the indemnity required by the contract.
The Board agreed with Appellant that Respondent had breached the contract by demanding that he perform delivery service not required under the terms of his contract and determined that Appellant was entitled to compensation for the extra-contractual delivery of large parcels and accountable mail. As entitlement only was in issue, calculation of the amount of damages was remanded to the parties.[2] The remaining claims were denied by the Board. Three of the denied claims, Claims 2, 3 and 5, are the subject of this Motion for Reconsideration.
Claims 2 and 5
According to Appellant, because of the improper delivery orders requiring the carrier to get out of his car to make deliveries in a dangerous neighborhood, anyone performing the route was exposed to a greater risk of harm. Appellant contends that because of that increased risk, he was unable to engage a relief driver, and, consequently, he had to drive the route personally every day. As a result, he was unable to devote sufficient attention to his personal financial affairs which, he contends, caused him to suffer financial losses for which he seeks to recover (Claim 2). Additionally, someone pulled a gun on Appellant while he was on the route and out of his car. He was not harmed, but he later read that a man was shot and killed a week later at approximately the same location. The resulting anxiety led to further stress and health problems that, according to Appellant, caused him to lose a second job that he had held for ten years. In Claim 5, Appellant seeks damages stemming from his loss of the second job.
In our original Opinion, we concluded that Appellant had been improperly required to perform services exceeding the requirements of his contract and determined that he was entitled to his cost of providing the extra services (Claim 1). However, the Board determined that the damages Appellant sought in Claims 2 and 5 were too remote to Respondent’s improper delivery directions to be a basis for recovery. Appellant’s damages for Respondent’s breach of contract are limited to the natural and probable consequences of the breach that were reasonably within the contemplation of the parties when the contract was made, Northern Helex Co. v. United States, 207 Ct. Cl. 862, 524 F.2d 707 (1975), cert. denied, 429 U.S. 866 (1976); Tutor-Saliba-Perini, PSBCA No. 1201, 87-2 BCA ¶ 19,775, and damages that only remotely result from the breach are not allowed, Ramsey v. United States, 121 Ct. Cl. 426, 433, 101 F. Supp. 353, 357 (1951), cert. denied, 343 U.S. 997 (1952); International Gunnery Range Services, Inc., ASBCA No. 34152, 96-2 BCA ¶ 28,497 at 142,306. Damages resulting from Appellant’s financial reverses and loss of a second job are simply too remote to the improper delivery requirements and were not shown to have been reasonably within the contemplation of the parties when the contract renewal was agreed to in 1989.
Appellant argues that the damages were not remote or consequential because he had placed Respondent’s officials on notice of the impropriety of the delivery directions he was given and that his safety was jeopardized by the new delivery requirements. While Appellant did raise safety concerns with Respondent, it has not been shown that he advised of the particular consequences he attributes to the delivery requirements in Claims 2 and 5, and the type of remote damages he seeks would not have been reasonably within the contemplation of the parties when the contract was entered into. Recovery on Claims 2 and 5 was properly denied. See San Carlos Irrigation and Drainage Dist. v. United States, 111 F.3d 1557, 1563 (Fed. Cir. 1997); AFTT, Inc., PSBCA No. 3717, 97-2 BCA ¶ 29,057; Edward K. Dilworth, ADA Contractors, Inc., PSBCA Nos. 1205, 1248, 84-2 BCA ¶ 17,346.
Claim 3
In Claim 3, Appellant sought to recover what he would have earned as wages for the remainder of the contract term, contending that had it not been for the improper delivery directions by Respondent’s official, he would have continued performing the contract through its expiration date, June 30, 1993. Claim 3 was denied because in it Appellant sought damages that stemmed from the termination of the contract, which damages are limited under the contract to the indemnity payment that Appellant received. Appellant contends that this conclusion is in error because Respondent acted in bad faith when it required him to leave his vehicle to deliver parcels and accountable mail.
In this Motion for Reconsideration, Appellant has offered additional evidence which he contends demonstrates Respondent’s bad faith. Appellant points to a “Service Review Checklist”[3] completed by the LaBelle Post Office at the request of the contracting officer just before renewal of the contract in 1989 which includes the handwritten notation, “Dismount for Parcels.”[4] From this entry on the Service Review Checklist, Appellant argues that before renewal, Respondent intended to breach the contract by requiring Appellant to divert from the route and make parcel deliveries to customers’ residences and businesses notwithstanding that the contract as written did not require him to do so. He argues that this circumstance demonstrates bad faith on Respondent’s part and urges this bad faith as a basis for granting his Motion for Reconsideration.
To demonstrate that Respondent’s officials acted in bad faith, Appellant must show that in awarding or administering the contract, they acted with an intent to cause Appellant harm. See Torncello v. United States, 231 Ct. Cl. 20, 681 F.2d 756, 771 (1982); Kalvar Corp. v. United States, 211 Ct. Cl. 192, 198-199, 543 F.2d 1298, 1301-1302 (1976), cert. denied, 434 U.S. 830 (1977); Joseph W. Morris v. United States, No. 92-590C, 1997 U.S. Claims LEXIS 197 at *17-18 (Fed. Cl., Sept. 23, 1997); Gregory Lumber Co. v. United States, 11 Cl. Ct. 489, 501-503 (1986). Requiring Appellant to make the extra-contractual deliveries, while a breach of contract, was not shown to have constituted bad faith, and even with the addition of the Service Review Checklist, admitted into evidence only after the Board’s Opinion, the evidence in the record does not demonstrate that Respondent’s officials acted with an intent to cause Appellant harm.
In the contract, Appellant agreed that his exclusive relief if the contract were terminated for Respondent’s convenience would be the indemnity payment provided under the contract, and that amount has been paid to him. Therefore, the Opinion correctly denied Claim 3 because Appellant has received the relief he is entitled to under the contract and, as he has failed to demonstrate that Respondent acted in bad faith, there is no basis for awarding any more or different damages, see Kenneth E. Hively, PSBCA No. 2856, 92-2 BCA ¶ 24,823.[5]
Proposed Additional Findings of Fact
As part of his Motion for Reconsideration, Appellant also offered a number of detailed findings of fact that he asked the Board to add to its findings in the Opinion. Except as they are already incorporated in the Board’s Findings of Fact or addressed in this decision, Appellant’s proposed findings are not necessary to the Board’s Opinion and are rejected.
Second Motion for Summary Judgment
We also consider Appellant’s Second Motion for Summary Judgment in which Appellant argues that the Board should find in his favor on Claims 1[6], 2, 3 and 5 because of Respondent’s failure to comply with his discovery requests and Board orders.[7] Respondent failed to produce documents that were within the scope of Board orders to disclose, but in order to overcome any prejudice resulting from that failure, Appellant was allowed further discovery after he had filed his Motion for Reconsideration. He was provided access to Respondent’s original files relating to his contract and was allowed to file additional documents with the Board. While we do not condone Respondent’s disregard of the Board’s orders, granting the appeal is too harsh a penalty for such violations, and the Second Motion for Summary Judgment is denied.
Document Fees
During discovery in this appeal, it was Respondent’s apparent practice to make copies of documents available to Appellant at no charge. However, correspondence filed by Appellant suggests that he was required to pay Respondent a fee in order to obtain certain contract-related documents under the Privacy Act and Freedom of Information Act. If Respondent had supplied all of the documents when appropriate during discovery, Appellant would have obtained his copies without cost. Therefore, Respondent is directed to reimburse any fees it required Appellant to pay for copies of documents related to his contract.
Conclusion
Appellant has not shown in this motion any factual or legal errors which would warrant changing our decision. See Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951. The Motion for Reconsideration is denied. Appellant’s Second Motion for Summary Judgment is denied. Respondent is to reimburse any fees paid by Appellant for access to contract documents.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur
David I. Brochstein
Administrative Judge
Vice Chairman
[1] Appellant had previously filed a motion for summary judgment long before the appeal was decided. That “first” motion for summary judgment was resolved by issuance of the Board’s Opinion.
[2] The parties failed to agree on the amount of damages due, and the quantum issue is now before the Board in PSBCA No. 4104.
[3] This document was not a part of the record for the Board’s Opinion. However, it was part of the supplemental evidence submitted by Appellant and received by the Board following the discovery Appellant was permitted to conduct after the reconsideration motion was filed.
[4] The Checklist asks for responses to a number of questions regarding whether the contract should be renewed with the incumbent contractor. The first question posed was, “Will the route be operated exactly as shown on the enclosed Statement of Service? (If not, please correct and attach.)” The responding official, the LaBelle Postmaster, marked the “No” column and wrote in, “Pg 4 #13E2. Dismount for Parcels”.
[5] In his Motion for Reconsideration, Appellant argues that under the terms of the applicable contract provisions, the convenience termination could only take effect 30 days after the contracting officer invoked the clause by converting the termination to a convenience termination. Thus, Appellant now argues that he is entitled to the wages he would have earned from the effective date of the termination for default, October 28, 1992, until May 13, 1993, 30 days after the contracting officer converted the termination to one for the convenience of the Postal Service. This is an argument that Appellant raises for the first time on reconsideration, and as the argument could have been raised at an earlier stage, it is not appropriate for consideration in connection with a motion for reconsideration. See Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951.
[6] Appellant has not challenged the Board’s holding regarding Claim 1 on which he prevailed, and we will not consider Appellant’s Second Motion for Summary Judgment as it relates to a claim that he prevailed on and a part of the Opinion he does not challenge.
[7] While Appellant characterizes his motion as one for summary judgment, what he seeks are sanctions against Respondent that, if granted, would result in deciding claims 2, 3 and 5 in Appellant’s favor.