DENIED: August 24, 2017
CBCA 4079
ASHEVILLE JET CHARTER AND MANAGEMENT, INC.,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Frank G. Podesta of FGP Law, LLC, Roswell, GA, counsel for Appellant. 
John J. Hockberger, Jr., Office of the Solicitor, Department of the Interior, Boise, ID,
counsel for Respondent. 
Before Board Judges SOMERS, SULLIVAN, and LESTER.
SULLIVAN, Board Judge. 
In a previous decision, Asheville Jet Charter & Management, Inc. v. Department of
the Interior, CBCA 4079, 16-1 BCA ¶ 36,373, the Board determined that the contracting
officer of the Department of the Interior (DOI or agency) properly found that Asheville Jet
Charter and Management, Inc. (Asheville) was in default under its contract to provide flight
services to DOI.  We could not determine, based upon the record at the time, whether
Asheville had established a valid defense under the excusable delay clause, sufficient to have
us invalidate the contracting officer’s decision to terminate the contract for cause. 
Specifically, we could not evaluate the reasons for the resignations of its key personnel and
whether they were beyond Asheville’s control.  Id. at 177,303.  Based upon additional
discovery taken since that ruling, DOI has moved for summary relief, asserting that
Asheville has no evidence to support its contention that a strike or a similar labor action


CBCA 4079 2
occurred that was beyond its control and for which it should not be held responsible.1  For
the reasons that follow, the Board grants DOI’s motion and denies the appeal.  
 
Background
We presume familiarity with our previous decision, in which we set forth undisputed
facts regarding the contract and the events that led to the termination.  Since we issued that
decision, the parties have deposed the current and former owners of Asheville and
supplemented the appeal file.2  We set forth here additional facts alleged by Asheville in
opposition to DOI’s motion based upon this further evidence.  
The remaining focus of the parties’ dispute is whether the actions of Asheville’s
former personnel constituted a strike that renders Asheville’s failure to perform excusable. 
Three key personnel resigned from Asheville–its operations director, its chief pilot and its
maintenance chief.  Appellant’s Statement of Genuine Issues of Fact ¶¶ 42, 54.  Without
personnel in these three positions, Asheville was required to notify the Federal Aviation
Administration (FAA) of these resignations, and the FAA suspended Asheville’s license to
fly.  Id. ¶ 55.  Without this license, Asheville could not perform scheduled flights to and
from the Midway Islands.   Id. ¶ 57. 
Asheville contends that these key personnel resigned on the same day (June 14,
2014), in concert with one another and without any notice to any Asheville management. 
Appellant’s Statement of Genuine Issues of Fact ¶¶ 42-43.  Asheville first learned of the
1 DOI fashions its motion as one for reconsideration, asking the Board to
reconsider its decision that there are facts that need to be developed regarding the strike
issue before a decision can be reached.  Because the parties have undertaken discovery and
supplemented the record since the original summary relief briefing, the Board views DOI’s
motion as a new motion for summary relief on the issue of the excusability. 
2 DOI also submitted the declarations of the three former employees of
Asheville.  Asheville moved to strike these declarations because DOI did not identify these
individuals in response to an interrogatory seeking the names of all persons that “may have
knowledge of any facts or circumstances concerning any and all claims or defenses made in
this action.”  Appellant’s Motion to Strike, Attachment A.  Because the Board does not
consider these declarations in resolving DOI’s motion to strike, we deny the motion to strike
as moot.  

CBCA 4079 3
resignations from an individual at the Nature Conservancy and never received formal notice
from the individuals themselves.3  Id. ¶¶ 43, 45, 49.  
Asheville further contends that these individuals resigned as an attempt to wrest
control of the company out of the hands of the new management and restore the former
president of the company.  As evidence of this motive, Asheville points to the list of
requirements that was drafted during a phone call on June 19, 2014, after the employees
resigned, between the current owner of Asheville, the former owner of Asheville, and the
former director of operations to secure the return of these key employees.  Appellant’s
Statement of Genuine Issues of Fact ¶¶ 51, 79; Exhibit 135 at 21-22.  Based upon the
evidence in the record, it appears that the former owner represented that the key employees
would return to their positions if Asheville agreed to certain conditions, including removing
two of the current owners from control and returning the former owner as president.  Exhibit
100.  Asheville rejected this offer because it required the current owners to cede control. 
Appellant’s Statement of Genuine Issues of Fact ¶ 52.  
The chief mechanic and the chief pilot returned to work for Asheville two weeks
later.  The operations director never returned to Asheville.  Appellant’s Response at 2; see
also Notice of Appeal (two of the three individuals returned to work for Asheville two
weeks later).  Asheville does not allege that these employees made further demands to secure
their re-employment. 
Asheville acknowledges that a dispute arose between the current and former owners
of Asheville in the spring of 2014.  Appellant’s Statement of Genuine Issues ¶ 38.  This
dispute was resolved in September 2015, after the parties filed lawsuits against each other
in Georgia state court.  Exhibits 143B-D.  Asheville alleges that the three former employees
took the side of the former owner in the dispute.  Appellant’s Statement of Genuine Issues
¶ 40.  The current owners of Asheville also sued the former employees in Georgia state court
in June 2016, alleging tortiuous interference, breach of fiduciary duty, and conspiracy.  The
record is silent as to the status of that suit.4  Asheville did not have employment contracts
3 In addition to the contract at issue, Asheville held contracts with DOI and the
Nature Conservancy to provide flights to and from Palmyra Atoll.  Appeal File,
Exhibit 143E (all exhibits are found in the appeal file unless otherwise noted).    
4 The Board notes that the facts set forth in the complaint filed in a separate
lawsuit against the three former employees contain discrepancies regarding the timing and
the description of the events surrounding the employees’ resignations and subsequent
discussions regarding the conditions under which the employees would return to the
company.  Exhibit 143H.  

CBCA 4079 4
with these three individuals and considered them to be at-will employees.  Appellant’s
Supplemental Statement of Facts (Aug. 8, 2017).          
Discussion
I. Standard of Review
“Summary relief is appropriate when the moving party is entitled to judgment as a
matter of law, based the undisputed material facts.”  MLJ Brookside, LLC v. General
Services Administration, CBCA 3041, 15-1 BCA ¶ 35,935, at 175,622.  It is the moving
party’s burden to demonstrate the absence of genuine issues of material fact, and all
justiciable inferences must be drawn in favor of the non-moving party.  Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).  Only
those facts which might affect the outcome of a case are material, and “an ‘issue is genuine
if enough evidence exists such that the fact could reasonably be decided in favor of the non-
movant after a hearing.’”  MLJ Brookside, 15-1 BCA at 175,622 (quoting Fred M. Lyda v.
General Services Administration, CBCA 493, 07-2 BCA ¶ 33,631, at 166,571).  The moving
party may meet its burden by “‘showing’ . . . that there is an absence of evidence to support
the nonmoving party’s case.”  Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560,
1563 (Fed. Cir. 1987) (quoting Celotex, 477 U.S. at 325).     
“When the moving party has shown an absence of evidence supporting the non-
moving party’s case, the burden shifts to the other party to establish that there is a genuine
issue of material fact.”  Marine Metal, Inc. v. Department of Transportation, CBCA 537,
07-1 BCA ¶ 33,554, at 166,175-7 (citing Celotex, 477 U.S. at 324; Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986)).  “[M]ore than mere
allegations are necessary to defeat a properly supported motion for summary [relief].” 
Id. at 166,175.  The non-moving party must “go beyond the pleadings” and establish that
there is a genuine issue for trial based upon affidavits or other evidence.  Id. at 166,176.   
II. Asheville Cannot Establish That Its Failure To Perform Was Excusable
In our previous decision, we found that DOI’s finding that Asheville was in default
was proper.  As a result, Asheville now bears the burden to establish that its failure to
perform is excusable.  Asheville Jet Charter & Management, Inc., CBCA 4079, 16-1 BCA
at 177,299 (citing MLJ Brookside, 15-1 BCA at 175,623).  To establish that its failure
should be excused, Asheville must show, by a preponderance of the evidence, that its
inability to perform resulted from causes beyond its control and without its fault or
negligence.  1-A Construction & Fire, LLP v. Department of Agriculture, CBCA 2693, 15-1
BCA ¶ 35,913, at 175,553 (citing Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed. Cir.
2000)), appeal dismissed, No. 15-1623 (Fed. Cir. Jan. 28, 2016).

CBCA 4079 5
 A strike is one of the activities that may excuse a failure to perform, provided it is
“beyond the reasonable control of the Contractor and without its fault or negligence.” 
48 CFR 52.212-4(f) (2014).  A strike is generally defined as follows:
An organized cessation or slowdown of work by employees to compel the
employer to meet the employees’ demands; a concerted refusal by employees
to work for their employer, or to work at their customary rate of speed, until
the employer grants the concessions that they seek.
Black’s Law Dictionary 1648 (10th ed. 2014).  The contractor seeking to establish that an
excusable delay resulted from conditions comparable to a strike must show the following:
(1) there was in fact a strike [or a comparable situation], (2) the strike directly
affected Appellant’s ability to perform the contract requirements, (3) the strike
was beyond Appellant’s control and did not result from Appellant’s fault or
negligence, and (4) . . . there was no other source than the [one] affected by
this strike from which Appellant could have [obtained and provided the
necessary services] in accordance with the contract.
Otis Elevator Co., Material Handling Division, VACAB 1157, 76-1 BCA ¶ 11,738, at
55,995.  
Asheville has failed to allege facts sufficient to establish that an excusable delay
resulted from a strike.  As we previously noted, Asheville alleges that these three employees
resigned in concert, without notice to Asheville.  As defined above, a strike is an action taken
by employees of a firm, who are otherwise obligated to work.  However, in this case, the
individuals resigned.  Asheville acknowledges that these employees were at-will employees
without employment contracts and, therefore, were free to resign when they wanted. 
Moreover, two of the employees returned to work for Asheville, and there is no evidence that
they extracted demands for their return after Asheville rejected the original terms for all three
to return.  In sum, Asheville has not alleged facts necessary to establish that this action was
a strike or a comparable situation.  
Asheville also has not alleged facts to show that the inability to perform was beyond
its control.  Although Asheville found the terms under which the former employees offered
to return to work for Asheville unacceptable, it made a choice not to accept them or to
negotiate further.  Asheville had control over the situation and made a choice to reject the
terms and default on the contract.  Asheville cannot demonstrate that the resignations of the
employees and their demands for conditions to return were beyond its control and without
its fault or negligence.  Carolina Security Patrol, Inc., GSBCA 5602, 81-1 BCA ¶ 15,040,
at 74,420.  Moreover, Asheville chose not to sign employment contracts with these

CBCA 4079 6
individuals to prevent these resignations and ensure the availability of these key personnel. 
KSC-TRI Systems, USA, Inc., ASBCA 54638, 06-1 BCA ¶ 33,145, at 164,260 (2005); Aero
Aircraft Manufacturing Co., ASBCA 19356, 75-1 BCA ¶ 11,038, at 52,540. 
In its briefing, Asheville appears to suggest that the Government was somehow at
fault for its employees’ resignations and that, as a result, the Government should be barred
from terminating the contract for default.  There is nothing to indicate that the Government
was involved in the resignations of these employees.  To shift the risk of loss of key
personnel to the Government, Asheville would have to show that the Government caused the
resignations of these employees.  The NTC Group, Inc., ASBCA 53720, et. al, 04-2 BCA
¶ 32,706, at 161,810; New England Tank Industries, Inc., ASBCA 6670, 61-2 BCA ¶ 3233,
at 16,761.  Asheville alleges that the contracting officer was aware of the resignations before
Asheville itself and continued to communicate with the former employees as well as the
owners of Asheville to determine whether the flight services could be performed.  Yet,
Asheville has not expressly alleged or submitted evidence in response to DOI’s summary
relief motion to suggest that the Government caused the resignations.  On this record, there
is no basis to shift the risk of the loss of key personnel to the Government by excusing
Asheville’s failure to perform.    
Decision
 
For the reasons discussed above, respondent’s motion for summary relief is granted. 
The appeal is DENIED.
_________________________
MARIAN E. SULLIVAN
Board Judge
We concur:
_________________________ _________________________
JERI KAYLENE SOMERS HAROLD D. LESTER, JR.
Board Judge Board Judge