Contract to Remove a Tree Once Owned by Teddy Roosevelt Did Not Give Contractor a Property Right in the Tree; Looks Great Services, Inc. v. United States, COFC No. 19-937C

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Contractor’s claims for injunctive relief and an unconstitutional taking are dismissed. The contractor had a contract to remove a tree that had belonged to Theodore Roosevelt. The government terminated the contract and instructed another company to remove the tree and the original contractor wanted to enjoin the other company from doing so. The court found, however that the contractor could not obtain injunctive relief, as COFC can only grant equitable relief in bid protests and the claim at hand concerned contract administration. The contractor also alleged that the termination of its contract constituted an unconstitutional taking of the tree. But the court dismissed this claim, finding that the contractor had not established that it had a property right in the tree. Moreover, even if the contractor had a property right, the proper remedy lied in contract not a takings claim.

The National Park Service issued a solicitation for remove a beech tree at Sagamore Hill National Historic Site in New York. President Theodore Roosevelt had lived at Sagamore Hill for several years and had planted the beech tree. Looks Great Services submitted a $0.01 bid to remove the tree. It claimed that the tree had “historical and communal value” and that it would be “an honor” to remove the tree. The Park Service awarded Looks Great the contract.

Shortly thereafter, however, the Park Service told Looks Great that it could not remove the tree due to concerns with the disposition of tree materials. Looks Great wanted to resell wood from the tree for profit. The Park Service terminated Looks Great contact and engaged another company to remove the tree.

Looks Great then filed suit with COFC, asking the court to enjoin the Park Service from using another contractor to remove the tree. Looks Great also alleged the National Park Service had taken the tree without compensation in violation of the Fifth Amendment. The government moved to dismiss both counts.

The court found that injunctive relief was not an available remedy. The court reasoned that COFC can only grant an injunctive relief in two types of cases: (1) bid protests, and (2) where the claim for equitable relief is related to a claim for monetary damages. Looks Great construed its claim for equitable relief as bid protest. But Looks Great was really challenging the termination of its contract, which was a contract administration claim. A claim concerning contract administration is governed the Contract Disputes Act and is not a bid protest. Thus, Looks Great had not raised a valid, free-standing claim for injunctive relief.

Moreover, the court continued, even if Looks Great had brought the claim as breach of contract, COFC would still not have jurisdiction. Under the Contract Disputes Act, a contractor must submit a written claim to the contracting officer within six years of accrual. Here Looks Great had not yet taken the appropriate steps to perfect its claim.

The court also found that Looks Great could not maintain its takings claims. As an initial matter, Looks Great had not pleaded facts to show that it possessed a legally cognizable property interest in the tree. Looks Great had initially claimed that its desire to remove the tree was motivated by charitable intentions or a sense of national historic pride. It had not indicated that it intended to sell the wood. Accordingly, at the time it formed the contract, the government simply thought it was paying for removal of the tree. There was nothing in the pleadings to indicate that the parties had intended the contract for removal to create a property right.

Further, even if Looks Great had a property right, it could not maintain a takings claim. When a contract between a private party and the government creates a property right subject to a Fifth Amendment claim, the proper remedy for infringement of that right lies in contract, not taking. Looks Great had not alleged any facts to indicate that its claim to the tree existed independently of its contract. Accordingly, the court dismissed the takings claim.

The court dismissed the suit without prejudice to give Looks Great an opportunity to perfect its claims under the CDA and seek contract remedies.

Looks Great is represented by Lochlin B. Samples, Karl Dix, Jr., and Parker A. Lewton of Smith, Currie, & Hancock LLP. The government is represented by Daniel K. Greene, Joseph H. Hunt, Robert E. Kirschman, Jr., and L. Misha Preheim with the U.S. Department of Justice as well as Jim Weiner with the U.S. Department of the Interior.

COFC – Looks Great