MOTION TO DISMISS DENIED: March 22, 2011 
CBCA 2127 
SAMUEL A. RUBINO, 
Appellant, 
v. 
AGENCY FOR INTERNATIONAL DEVELOPMENT, 
Respondent. 
Samuel A. Rubino, pro se, Linn Creek, MO. 
Jaime Areizaga-Soto, Office of General Counsel, Agency for International 
Development, Washington, DC, counsel for Respondent. 
Before Board Judges GILMORE, GOODMAN, and WALTERS. 
WALTERS, Board Judge. 
Respondent has filed a motion to dismiss the appeal, contending that appellant’s 
claims are “barred as a matter of law.” The motion is accompanied by and relies upon an 
affidavit, and is being treated as a motion for summary relief. For the reasons discussed 
below, the Board denies the motion. 
Background 
Appellant, Samuel A. Rubino (Rubino), was awarded a personal services contract by 
respondent, the United States Agency for International Development (USAID), under 
contract number 650-S-00-09-00008-00 on February 22, 2009. The contract called for 
Rubino to provide management/executive officer services at the USAID mission in Juba, 
Sudan for the six-month period, from March 15, 2009, through September 15, 2009. By 

 
        
      
      
     
      
       
     
      
      
        
    
      
       
      
     
        
      
      
          
       
       
       
    
        
      
         
      
    
     
   
         
     
    
        
2 CBCA 2127 
modification dated August 27, 2009, the contract term was extended for an additional 18­
month period through March 14, 2011. The parties are in agreement that, in January 2010, 
Rubino met with Mr. Peter Malnak (Malnak) , the USAID Deputy Mission Director (DMD) 
for Juba, at Malnak’s home and was advised by Malnak that USAID would be advertising 
the executive officer (EXO) position at Juba as a “direct hire” position. In other words, 
USAID was contemplating possibly converting Rubino’s position from a contract position 
to one held by a USAID employee. Malnak indicated that USAID was providing Rubino 
with this information in advance, so that he might start looking for another job.  
The parties are in complete agreement up to this point. In his complaint before this 
Board, however, Rubino alleges that, during that January 2010 meeting, Malnak further 
informed him that, although the timing of Rubino’s replacement was uncertain, it would not 
be before the end of August and could be later, and that September 2010 should be used as 
a target date for Rubino’s job search. In addition, the complaint asserts that Rubino 
specifically sought confirmation from Malnak that his position would be secure until at least 
August 2010. Rubino says that he explained to Malnak that he was in the process of 
acquiring a smaller home in the United States, one that he could better afford, in light of his 
post-divorce financial situation, and that he would not proceed with the purchase if there 
were any question about his contract being terminated prior to the end of August. According 
to Rubino’s complaint, Malnak confirmed the August 2010 date, not only during their 
January 2010 meeting, but also on several occasions thereafter, when purportedly Rubino 
was assured that he “had nothing to be concerned about and needed to stop worrying.” At 
one point, Rubino states, he sought to have Malnak provide him with “something in writing 
which included the Contracting Officer and the Sudan MD [Mission Director] as addressees, 
so there would be no question,” and “was informed that the Contracting Officer does not 
make the determination to terminate the contract early.” Further, according to Rubino, 
Malnak told him that “it is Mission Management which makes this type of decision and they 
simply instruct the Contracting Officer to carry out the necessary contracting action.” 
Moreover, Rubino alleges, Malnak stated to him that “since he and the Sudan MD had made 
the decision not to terminate [Rubino’s] contract before the end of August 2010, [he] could 
take that to the bank.”  
In its answer, USAID denies any and all of these additional allegations concerning 
assurances by Malnak regarding contract termination not being before the end of August. 
The answer does, however, implicitly concede the authenticity of e-mail messages between 
Rubino and Malnak dated April 25, 2010, which Rubino had appended to its complaint as 
Exhibit F, stating that “the referenced e-mail [i.e., that from Malnak to Rubino] is the best 
evidence of its contents.” Malnak’s April 25, 2010, e-mail message, responding to Rubino’s 
inquiry regarding an exploration of potential future job plans based on “the earliest I might 
be asked to leave Juba,” states as follows: 

     
      
      
  
    
        
 
   
     
      
        
       
     
   
      
    
      
        
  
    
  
       
     
    
          
    
     
   
     
  
     
      
     
3 CBCA 2127 
Hi Sam, 
Thanks for your message. I wish I had more answers for you, but I am not 
sure what timeframe the Mission might have in mind regarding your 
departure. It might be as we discussed, for example, when a new EXO 
arrives, or it may be after that. As I mentioned, I have already sent those 
questions to David Young, Bill Hammink, and Doug Arbuckle for their 
consideration as we had discussed a few weeks ago. I imagine that a new 
EXO will likely arrive in August, but again, I don’t know if we will require 
your position to be filled [i.e., if USAID would want Rubino to continue in 
his contract position thereafter alongside the new EXO] or if it will be 
converted to accommodate the new USDH [United States Direct Hire] EXO. 
I’ve copied Jeffrey Nedoroscik on this message so he can be in the loop about 
your question, and also follow up with the KRT [Khartoum] Front Office. 
Bill is currently away on leave, but perhaps Doug has some guidance so you 
can plan.  I do realize that you must look after your future job opportunities, 
so if you just give us a few more days, perhaps around the first week of May, 
I believe we can provide you with additional information. At that point, the 
Mission may be in a position to address your question more thoughtfully, 
while also providing you with about 3 months lead time in case your 
contract will be curtailed. That is much greater lead time than stipulated in 
your contract. . . .  (Emphasis supplied) 
The complaint proceeds to relate that, in reliance on Malnak’s repeated alleged 
assurances, Rubino went forward with the home acquisition in late February 2010 (taking 
on the burden of carrying mortgages on two houses) as well as with incurrence thereafter of 
substantial costs for repairs/modifications and appliances for the new home. Contrary to 
those alleged assurances, including the aforesaid April 25 e-mail assurance that Rubino 
would be given “about 3 months lead time” from the “first week of May,” to “look after 
future job opportunities,” “in case your contract will be curtailed,” Rubino shortly thereafter 
received notice via contract modification from the contracting officer that, effective May 5, 
2010, his contract was terminated for the convenience of the Government. The complaint 
seeks $59,857, which Rubino indicates would have been the total compensation he would 
have been paid for the period May 5, 2010, through August 31, 2010.
1 
1The termination notice, respondent states, was issued on May 5, 2010. Appeal File, 
Exhibit 19. Pursuant to the Termination provision of the contract, GP 16(a)(2), convenience 
terminations are to have fifteen days’ advance notice. Although the modification declares 

       
       
     
     
              
     
                
             
    
              
              
              
            
             
               
               
              
             
              
              
             
               
         
               
                  
               
   
     
  
        
      
4 CBCA 2127 
Discussion 
As noted above, respondent’s motion is accompanied by and relies upon an affidavit, 
that of Peter Malnak. It thus focuses on more than simply the adequacy or content of the 
pleadings. Under such circumstances, the Board will treat the motion to dismiss as a motion 
for summary relief. Tomas Olivas Ibarra v. Department of Homeland Security, CBCA 
1986, 10-2 BCA ¶ 34,573.  
Summary relief is appropriate only where there is no genuine issue as to any material 
fact (a fact that may affect the outcome of the litigation) and the moving party is entitled to 
relief as a matter of law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986); Walsh/Davis 
Joint Venture v. General Services Administration , CBCA 1460, 10-2 BCA ¶ 34,479. The 
moving party shoulders the burden of proving that no genuine issue of material fact exists. 
Patrick C. Sullivan v. General Services Administration , CBCA 936, 08-1 BCA ¶ 33,820. All 
justifiable inferences must be drawn in favor of the nonmovant. Celotex Corp. v. Catrett, 
477 U.S. 317 (1986). In this case, respondent has failed to meet its burden. 
Malnak, in his affidavit, denies having made any “representation” to Rubino “that his 
PSC [personal services contract] would not be terminated for convenience or that it would 
be maintained until August 2010.” The parties clearly are at odds with regard to what Malnak 
may or may not have told Rubino and, for purposes of evaluating a motion for summary 
relief, as noted previously, we must resolve this difference in favor of Rubino as the 
nonmovant. Respondent, in its motion, argues that, any statements Malnak may have made 
would not have been authorized and thus, the Government cannot be bound by them, via 
estoppel or otherwise. In this regard, respondent stresses that Malnak did not hold a 
contracting officer’s warrant: “Mr. Malnak was not a contract officer and had no authority 
to bind the Government.” Malnak, in his affidavit, affirms that, while in Sudan, he was 
“never appointed as a Head of Contracting Activities (HCAs), a Contracting Officer (CO), 
or as a Contracting Officer Representative (COR), whether pursuant to an SF 1402 or not.” 
Malnak states further that “[t]he only time in my life that I held a warrant was for a six-week 
period in the summer of 2007, while covering for the EXO [in Jordan] during her home 
leave.” 
the termination to be effective May 5, 2010, respondent, in its motion, identifies May 8, 
2010, as the effective date. Respondent’s answer, however, asserts that appellant “was 
properly compensated by USAID for all salary and benefits that were due to him through 
May 20, 2010.” The issuance and effective date of the termination and the sums paid 
appellant thus require further clarification. 

             
             
           
            
             
             
         
            
              
             
            
           
        
                
              
            
               
              
               
              
           
             
             
              
             
           
                
                 
     
      
    
     
   
      
 
      
     
5 CBCA 2127 
Whether or not Malnak was a contracting officer, however, may not be dispositive of 
whether he would have been acting within the scope of his authority when making 
representations to Rubino about the timing of the contemplated termination of Rubino’s 
contract. Although, ordinarily, a Government official other than a contracting officer may 
not enter into a contract or direct additional work and thus bind the Government 
contractually, see Winter v. Cath-Dr/Balti Joint Venture , 497 F.3d 1339 (Fed. Cir. 2007), our 
predecessor board, the General Services Administration Board of Contract Appeals 
(GSBCA) held that: “(i) where Government officials acting within the scope of their 
authority make statements to contractors, . . . (ii) the statements interpret and are not 
inconsistent with contract or solicitation provisions or with statute, and (iii) the recipients of 
these statements reasonably rely on them, the Government is estopped from acting contrary 
to its representations.” Kozak Micro Systems, Inc. v. General Services Administration , 
GSBCA 10519, 91-1 BCA ¶ 23,342 at 117,060 (1990) (citations omitted), reconsideration 
denied , 91-1 BCA ¶ 23,593, aff’d , 989 F.2d 1201 (Fed. Cir. 1993). This rule would prevail, 
regardless of whether the statements were made by a contracting officer or by some other 
Government official properly designated to provide guidance with respect to the contract. 
Id., 91-1 BCA ¶ 23,342 at 117,060, citing Max Drill, Inc. v. United States , 427 F.2d 1233, 
1243 (1970); see also Lublin Corp., t/a Century 21, Advantage Gold v. United States, No. 
07-206C, slip op. at 4 (Fed. Cl. Feb. 24, 2011), citing Winter v. Cath-Dr/Balti Joint Venture , 
497 F.3d at 1346 (“Authority to bind the government may be implied when it is an integral 
part of the duties assigned to the particular government employee.”). 
Here, Malnak, in his affidavit, states that, as Deputy Mission Director (DMD) in Juba, 
he “managed Mr. Sam Rubino, a Personal Services Contractor.” Rubino contends that, as 
DMD, Malnak was acting within the scope of his authority when providing guidance to him 
as to the Juba mission’s continuing needs and the timing of the contemplated contract 
termination. Although USAID contends otherwise, we cannot conclude that Rubino’s claims 
are barred as a matter of law. Rather, we find Malnak’s authority to make the alleged 
statements to be a genuine issue of material fact that is in dispute and that cannot be resolved 
by means of summary relief.
2 
2 According to a recent decision of the Court of Appeals for the Federal Circuit, 
equitable estoppel “requires: (1) misleading conduct, which may include not onlystatements 
and actions but silence and inaction, leading another to reasonably infer that rights will not 
be asserted against it; (2) reliance upon this conduct; and (3) due to this reliance, material 
prejudice if the delayed assertion of such rights is permitted.” Mabus v. General Dynamics 
C4 Systems, Inc., Nos. 2009-1550, et al., slip op. at 6 (Fed. Cir. Feb. 4, 2011).  Rubino, to 
invoke the doctrine of equitable estoppel, in addition to proving that the alleged statements 
were actually made, thus will have to establish by a preponderance of the evidence not only 

     
   
        
6 CBCA 2127 
Decision 
Respondent’s motion is DENIED. 
_________________________ 
RICHARD C. WALTERS 
Board Judge 
We concur: 
_________________________ 
BERYL S. GILMORE 
Board Judge 
_________________________ 
ALLAN H. GOODMAN 
Board Judge 
Malnak’s authority, but also that his statements were misleading (causing Rubino to believe 
reasonably that the Government would not assert its convenience termination rights under 
the contract prior to the end of August 2010) and that they were relied upon to Rubino’s 
material prejudice.