July 2, 2002
Appeal of
LOYD V. LOVELL
Under Contract No. HCR 648AA
PSBCA Nos. 4766 and 4811
APPEARANCE FOR APPELLANT:
Loyd V. Lovell
APPEARANCE FOR RESPONDENT:
Robert P. Faust, Esq.
OPINION OF THE BOARD
Appellant, Loyd V. Lovell,[1] has appealed from a contracting officer's decision[2] denying his claim for money allegedly owed him by Respondent, United States Postal Service, in connection with the operation of a contract for the transportation of mail in Joplin, Missouri. At the election of the parties, these appeals are being decided on the record under 39 C.F.R. §965.12.
FINDINGS OF FACT
1. In September 1995, Appellant was awarded a mail transportation contract for the period of September 23, 1995, through June 30, 1999. The contract generally required Appellant to perform six round trips daily (except Sundays and holidays) between two locations in Joplin, Missouri. Appellant was scheduled to begin the first trip at 5:55 a.m., and run three trips in the morning and three in the afternoon. Through a number of service changes beginning in June 1999, the term of the contract was ultimately extended to October 22, 1999, when it expired. (Appeal File Tabs (AF) 1-4; Declaration of Richard L. Chancellor, dated November 16, 2001 (Chancellor Declaration)).
2. From on or about June 16, 1996, until on or about November 17, 1998, one of Respondent's customer services supervisors in Joplin directed Appellant to change the schedule of the service under his contract. The exact changes to the schedule are not clear, but included at least a requirement that Appellant run his first trip at approximately 4:00 a.m., instead of the specified 5:55 a.m. (AF 14-16).
3. In approximately March 1999, the contracting officer received a claim from Appellant in the amount of $52,122.85. Appellant claimed that he was entitled to compensation for service that he provided that was not in accordance with the contract schedule, and compensation for extra trips performed by Postal Service employees that Appellant contended should have been performed by him. (Chancellor Declaration, ¶6; AF 9, 11, 18).
4. In May 1999 the contracting officer directed Contract Transportation Specialist Steve Bryant to attempt to negotiate a settlement of Appellant's claim with him. Mr. Bryant and Appellant met at the Joplin Post Office on May 25 and/or ay 26, 1999.[3] (Chancellor Declaration; Declaration of Steve Bryant, dated November 19, 2001 (Bryant Declaration)).
5. During the course of negotiations, Mr. Bryant spoke with Appellant, with Appellant's wife and with Appellant's daughter. At one point during the discussions Mr. Bryant warned Appellant's daughter, who was a Postal Service employee, that she had an ethical obligation not to involve herself in the contract. (Bryant Declaration; Appellant's statement in rebuttal of Bryant and Chancellor Declarations, dated December 9, 2001 (Appellant's Rebuttal)).
6. On May 26, 1999, Mr. Bryant and Appellant reached an agreement with regard to Appellant's claim. The agreement was memorialized in a contract amendment, which read:
"The contractor agrees to a one-time lump sum payment in the amount of $8,677.68. This is for 744 extra trips performed from June 16, 1996, through November 17, 1998. The trips were performed at approximately 0400 a.m. This agreement satisfies all previous claims regarding extra service, out of schedule pay, and extra trips performed by clerks during the period June 16, 1996 through November 17, 1998. The contractor attests that this agreement was not signed or reached under duress. The lump sum is calculated as follows: …."[4]
Appellant signed the amendment on May 26, 1999. The contracting officer signed the amendment on June 7, 1999. (AF 16; Chancellor Declaration; Bryant Declaration).
7. By letter dated February 27, 2001, Appellant wrote to the Board and demanded the payment of the difference between what he had received in the settlement, $8,677.68, and the amount of his claim, which he stated was $54,119.75 or $60,666.37. In his letter, Appellant stated that as a result of the stress of the situation, his wife had had a stroke and he began to suffer from high blood pressure. He therefore demanded an additional $100,000 due to "mental and physical anguish." In an attachment to the letter, Appellant explained how the claim was calculated and stated that he was asking for an additional $250,000 and attorney fees in punitive damages because of the stroke suffered by his wife and because of his high blood pressure. Appellant's letter was docketed by the Board as PSBCA No. 4766 (see footnote 2, above). (Appellant's February 27, 2001 letter).
8. Thereafter, Appellant filed two letters dated June 5, 2001, with the contracting officer asserting that Respondent owed him $43,445.17, representing the difference between his $52,122.85 initial claim and the $8,677.68 settlement amount, plus $206,554.83 in "consequential damages and or punitive damages," for a total of $250,000. (AF 23, 24).
9. By final decision dated July 17, 2001, the contracting officer denied Appellant's claim in its entirety, citing the earlier settlement agreement. In addition, the contracting officer stated that punitive and consequential damages were not recoverable under the contract. Finally, the contracting officer stated that the June 5, 2001 claim was untimely. (AF 21). Appellant filed a timely appeal, which was docketed as PSBCA No. 4811.
DECISION
With regard to his earlier $52,122.85 claim, Appellant takes the position that he should not be bound by the settlement document he signed. The basis for his position, in essence, is that the agreement was the product of duress on the part of the Postal Service representative who negotiated with him. Appellant cites three events in support of his position. First, he argues that the Postal Service representative threatened him with loss of his contract if he did not settle. Second, he argues that the representative threatened his daughter's job if she participated in the negotiation. Finally, Appellant argues that the Postal Service representative refused to allow him to take the proposed agreement home overnight to "sleep on it" before deciding to accept, but instead insisted that he make a decision on the spot.
With respect to the claim for "consequential damages or punitive damages," in his initial letter of February 27, 2001, Appellant stated that his wife suffered a stroke in April 1999 and he began to have high blood pressure problems. He states that he had not had problems with his blood pressure until "the Postal Service started messing with me and my livelihood." He submitted two letters from his doctor attesting to the fact that Appellant began to have significant blood pressure problems in May of 1999, but did not address the issue further in his brief or reply brief.
Respondent argues that the parties previously settled the initial claim and that Appellant's attempt to recover any additional amount is barred by the doctrine of accord and satisfaction. With regard to the consequential/punitive damages claim, Respondent argues that, in any event, the Board lacks jurisdiction because Appellant failed to certify the claim as required by the Contract Disputes Act. Respondent also argues that Appellant may not recover under this claim because the Board lacks authority to award such damages.
"The law strongly favors settlement of litigation, and there is a compelling public interest and policy in upholding and enforcing settlement agreements voluntarily entered into." Hemstreet v. Spiegel, Inc., 851 F.2d 348, 350 (Fed. Cir. 1988), citing Bergh, et al. v. Department of Transportation, 794 F.2d 1575, 1577 (Fed. Cir. 1986), cert. den. 479 U.S. 950 (1986). In order to avoid the settlement agreement that he entered into, Appellant bears the burden of proving his allegation that it was the product of duress inflicted by Postal Service officials. Aerospace Engineering & Support, Inc., ASBCA No. 45382, 95-2 BCA ¶ 27,648.
The requirements to establish duress are "exacting." Three elements must be found: (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party. Employers Ins. of Wausau v. United States, 764 F.2d 1572 (Fed. Cir. 1985), citing Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 62, 111 F. Supp. 945 (1953); Systems Technology Associates, Inc. v. United States, 699 F.2d 1383, 1387 (Fed. Cir. 1983).
In his declaration under penalty of perjury, the Postal Service representative categorically denied harassing, coercing, or pressuring Appellant into accepting the settlement. Appellant's evidence has not persuaded us that the Postal Service representative's statement was untrue.
Detracting significantly from the persuasiveness and credibility of Appellant's statements and other evidence is the fact that he waited 21 months after the events he complains of and 16 months after expiration of his contract before filing his first letter with the Board. See, e.g., Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002); Portable Water Supply Systems Co., Ltd., ASBCA No. 49813, 02-1 BCA ¶ 31,805; Inca Contracting Co., Inc., ASBCA No. 52697, 01-1 BCA ¶ 31,255. Appellant has offered no explanation for that lapse of time. Further, Appellant's statements which, notwithstanding the Board's warning, were not sworn, are uncorroborated by any contemporaneous evidence. Am-Pro Protective Agency, Inc. v. United States, supra; Starghill Alternative Energy Corp., ASBCA Nos. 49612, 49732, 98-1 BCA ¶ 29,708 at 147,232. Appellant did file the sworn statements of several other people, including his daughter. Those statements, however, related to the changes in mail processing and handling that brought about the change in Appellant's schedule, and did not address the question of duress in the course of negotiating the settlement.
With regard to the involvement of Appellant's daughter, Respondent's representative confirms that he did advise her that she had ethical obligations not to involve herself in the contract. Whether or not that advice was correct, there is no evidence that Appellant was pressured into accepting the settlement in order to save his daughter's job. In fact, in his rebuttal statement, Appellant states that the remark concerning his daughter's involvement was not made until he had already signed the settlement and the Postal Service representative had put the papers into his briefcase.
With regard to Appellant's contention that he was not allowed to consider the offer overnight, we note that the evidence from the parties is in direct contradiction. In his declaration, Respondent's representative states that he suggested that Appellant "sleep on" the settlement proposal overnight, and that Appellant returned to the post office and signed the agreement the next day. We need not resolve this conflict, since we do not consider the version of the events alleged by Appellant to constitute duress.
Finally, the credibility of Appellant's allegation that Respondent's representative threatened the loss of Appellant's contract is further weakened by the fact that, as of the end of May 1999, Appellant's contract in any event had only one month left before it was to expire.
Thus, Appellant has not proved that Postal Service personnel obtained an agreement through duress when they negotiated with him. Therefore, the settlement agreement which he entered into is binding and represents an accord and satisfaction with respect to the $52,122.85 claim he filed in 1999 and, again, in 2001. Accordingly, Appellant's appeals, as they relate to that claim, are denied.
With regard to the $206,554.83 portion of the June 5, 2001 claim letter (Finding 8),[5] we agree with Respondent that Appellant's failure to certify the claim as required by Section 605 of the Contract Disputes Act, 41 U.S.C. §605, precludes the Board from exercising jurisdiction. Although 41 U.S.C. §605(c)(6) allows a defective or incomplete certification to be corrected, a missing certification is not a defective certification and, therefore, may not be corrected. Eurostyle Incorporated, ASBCA No. 45934, 94-1 BCA ¶ 26,458. Therefore, the contracting officer's decision on this claim was not valid under the Contract Disputes Act and the Board lacks authority to rule on the resulting appeal. Skelly & Loy v. United States, 231 Ct. Cl. 370, 685 F.2d 414 (1982); Ebba Enterprises, ASBCA No. 31729, 86-1 BCA ¶ 18,679 at 93,928. Accordingly, Appellant's claim for consequential/punitive damages is dismissed without prejudice.[6]
Accordingly, as described above, the appeals are denied in part and dismissed in part.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] The contract at issue here was awarded to Loyd V. Lovell and Barbara J. Lovell. However, because Mr. Lovell filed, and has been prosecuting the appeal on behalf of both contractors, we refer to him as the contractor and Appellant in this Opinion.
[2] Appellant initially filed a letter dated February 27, 2001, and received by the Board on March 8, 2001, alleging that the Postal Service owed him additional money on an earlier claim which had been the subject of a settlement agreement. That letter was docketed as PSBCA No. 4766. Appellant later restated his claim and the contracting officer issued a final decision denying the claim. Appellant appealed that final decision, which appeal was docketed as PSBCA No. 4811.
[3] Mr. Bryant contends that they met on both days, while Appellant contends that they met only on May 26, 1999. It is not necessary to resolve this difference in order to decide the appeal.
[4] In determining the amount of the settlement, the parties first calculated the value of one additional trip each day for 744 days. That sum was $14,813.04. They then deducted half the value of 616 afternoon trips which, although scheduled, had not been run, or $6,132.28. This calculation yielded the amount set out in the contract amendment, or $8,677.68. (AF 16).
[5] We treat Appellant's claim for consequential/punitive damages as a separate claim inasmuch as it arose from different facts than did the original claim. The original claim was based on changes to Appellant's schedule from June 1996 through November 1998, whereas the claim for consequential/punitive damages arose solely out of the events surrounding the negotiation that led to the settlement agreement. See, e.g., C.B.C. Enterprises, Inc., ASBCA Nos. 43496 et al., 92-2 BCA ¶ 24,803.
[6] As we have no jurisdiction over this claim, we make no finding as to its validity. However, damages for emotional pain and suffering, damages arising from tort independent of the contract, and punitive or exemplary damages are generally not recoverable before contract appeals boards. See, e.g., Onice Ulmer, PSBCA No. 2938, 91-2 BCA ¶ 23,991 recon. denied 91-3 BCA ¶ 24,345; Roger Dean Barrett, PSBCA No. 2490, 89-3 BCA ¶ 22,220; Paul A. Mason, PSBCA No. 1473, 86-3 BCA ¶ 19,142; Bartel Kress, AGBCA No. 85-139-1, 91-3 BCA ¶ 24,366; Robert K. Adams, ASBCA No. 34519, 87-3 BCA ¶ 20,205; Alfred Bronder, ASBCA No. 29938, 86-3 BCA ¶ 19,102 aff'd 824 F.2d 980 (Fed. Cir. 1987)(Table).