APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED;
RESPONDENT’S MOTION FOR SUMMARY JUDGMENT GRANTED IN PART:
January 17, 2024
CBCA 7576
ABDUL MUTAKABER,
Appellant,
v.
DEPARTMENT OF STATE,
Respondent.
Enayat Qasimi and Shamsi Maqsoudi of Whiteford, Taylor & Preston LLP,
Washington, DC, counsel for Appellant.
Erin M. Kriynovich, Office of the Legal Adviser, Buildings and Acquisitions,
Department of State, Washington, DC, counsel for Respondent.
Before Board Judges VERGILIO, GOODMAN, and SULLIVAN.
SULLIVAN, Board Judge.
Abdul Mutakaber (Mutakaber or appellant) appealed the decision of the contracting
officer for the Department of State (DOS) on appellant’s claim arising from the termination
of lease contracts in Afghanistan following the withdrawal of United States forces.  In cross-
motions for summary judgment, the parties address whether the terminations were proper and
Mutakaber’s contention that DOS was required, but failed, to return physical control of the
properties upon termination of the lease.  Consistent with Hamidullah, Son of Mohammad
Rajab v. Department of State, CBCA 7502, et al. (Jan. 17, 2024), which involves parallel


CBCA 7576 2
issues, we hold that DOS terminated the leases for convenience and that DOS was not
obligated to return physical control of the property to Mutakaber.
Statement of Undisputed Facts
I. Lease Contracts and Their Relevant Provisions
Between 2016 and 2020, DOS entered into four leases with Mutakaber for residential
properties in Kabul, Afghanistan.  Appellant’s Statement of Undisputed Material Facts
¶¶ 1-4.  In September 2016, DOS entered into the first lease, for property referred to as the
Maryland house, for one year at an annual rent of $420,000.  Respondent’s Statement of
Undisputed Material Facts ¶¶ 1, 3, 5.  With several renewals, the lease term was extended
to September 1, 2025.  Id. ¶ 4.
DOS entered the second lease, for property referred to as the PA+CT house, for one
year beginning January 2017 at an annual rent of $1,020,000.  Respondent’s Statement of
Undisputed Material Facts ¶¶ 7, 9, 11.  With several renewals, the lease term was extended
to December 31, 2021.  Id. ¶ 10.
DOS entered the third lease, for property referred to as the Guam house, for one year
beginning February 2017 at an annual rent of $144,000.  Respondent’s Statement of
Undisputed Material Facts ¶¶ 13, 15, 17.  With several renewals, the lease term was extended
to January 31, 2022.  Id. ¶ 16.  The leases for the Maryland, PA+CT, and Guam houses were
renewable for additional periods, provided that DOS gave notice “at least 60 days prior to
the date” the lease term would otherwise expire.  Id. ¶¶ 3, 9, 15.
In April 2020, DOS entered the fourth lease, for property referred to as the
Champagne house, for five years at an annual rent of $168,000.  Respondent’s Statement of
Undisputed Material Facts ¶¶ 19, 21, 22.  The Champagne lease did not contain a renewal
provision and was to end on March 31, 2025.  Id. ¶ 21.
The leases contained two termination provisions that control the resolution of the
parties’ dispute.  The first provision, article 12, “Destruction of Premises,” was identical for
the Maryland, PA+CT, and Guam leases.  Article 12 gave DOS the right to immediately
terminate the lease should the property be rendered unfit for tenancy:
Whenever the Premises or any essential part thereof shall be destroyed or
rendered unfit for further tenancy through fire, vandalism, earthquake, flood,
storm, war, civil disturbance, Act of God, or other similar casualty, this Lease
shall, at the option of the TENANT, immediately terminate.  In case of partial
destruction or damage, this Lease may be terminated in whole or in part at the

CBCA 7576 3
TENANT’s option.  Should the TENANT exercise its option, it shall provide
at least twenty days’ written notice to the LANDLORD, and no rent shall
accrue to the LANDLORD after such termination.
Respondent’s Statement of Undisputed Material Facts ¶¶ 36, 49, 62.  Article 12 requires the
landlord to “refund any advance rental payments in excess of rental liabilities accrued to the
date of termination” within forty-five days after termination.  Id.
Article 12 of the Champagne lease varies slightly from the other three leases but gave
DOS the same right to immediately terminate the lease should the property be rendered unfit
for tenancy:
Whenever the Premises or any essential part thereof shall be destroyed or
rendered unfit for further tenancy through fire, explosion, vandalism,
earthquake, flood, storm, war, act of terrorism, civil disturbance, Act of God,
or other similar casualty, this Lease shall, at the option of the TENANT,
immediately terminate upon provision of written notice to the LANDLORD. 
In the event of such termination, no rent shall accrue to the LANDLORD after
he/she/it receives the TENANT’s written notice.
Respondent’s Statement of Material Facts ¶ 74.  The provision also requires the landlord to
“refund any advance rental payments in excess of rental liabilities accrued to the date of
termination” within forty-five days after termination.  Id.
The second termination provision, article 14, Termination, was identical in the
Maryland, PA+CT, and Guam leases.  Article 14 allowed DOS to terminate the lease for its
convenience by giving sixty days’ notice of its intent to terminate:
The TENANT may, for its convenience, terminate this Lease in whole or in
part at any time, if it determines that such termination is in the best interests
of the TENANT, by giving written notice to the LANDLORD 60 days in
advance.  If the TENANT terminates this Lease in accordance with this clause,
the TENANT shall not be liable for any charges additional to those normally
incurred up to the date the Lease is terminated.
Respondent’s Statement of Undisputed Material Facts ¶¶ 37, 50, 63.  Article 14 required the
landlord to issue a “pro rata refund of any rent payments made for periods beyond the date”
DOS “surrender[ed]” the premises.  Id.  Article 14 of the Champagne lease was the same as
the other leases except that DOS was only required to provide thirty days’ notice of
termination.  Id. ¶ 75.

CBCA 7576 4
Article 8, Tenant Rights and Responsibilities, was also the same in the Maryland,
PA+CT, and Guam leases and relieved DOS of responsibility for damage to the property
caused by forces outside of its control:
The TENANT shall, unless specified to the contrary, maintain the said
Premises in good repair and Tenantable condition, including minor
maintenance such as trash removal and light bulb replacement, during the
continuance of this Lease, except for reasonable and ordinary wear and tear,
damage by the elements, or other circumstances not under the TENANT’s
control.  Any damage arising from the intentional acts or negligence of the
LANDLORD, its agents or employees, or any other third parties not under
LANDLORD’s or TENANT’s control, is similarly excepted.
Respondent’s Statement of Undisputed Material Facts ¶¶ 34, 47, 60.  Article 8 of the
Champagne lease similarly specified that DOS would “not be responsible for restoring the
Premises to any condition or for any changes or damages to the Premises.  The Premises are
leased in ‘as is’ condition and may be returned in the ‘as is’ condition as of the date of lease
expiry or termination.”  Id. ¶ 72.  In addition, article 8 of the Champagne lease permitted
DOS to alter the premises and permitted, but did not require, DOS to remove the alterations:
The TENANT shall have the right, during the existence of this Lease, to erect
new structures, additions, and annexes, install utility infrastructure, post signs,
make alterations, and attach fixtures in or upon the Premises.  This includes
the right to affix a flagstaff, a U.S. flag, a U.S. seal, and office signs and
insignia on the Premises leased.
Such fixtures, additions, annexes or structures placed in or upon or attached to
the said Premises shall be and remain the property of the TENANT and may
be removed before, at the time of, or within a reasonable time after the Lease
or any extension thereof expires or is terminated at TENANT’S discretion. 
TENANT may choose to leave the improvements for the LANDLORD and
there will be no requirement for the LANDLORD to pay any compensation.
Id.
All the leases contained provisions specifying that the leases are subject to the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018), and that the terms of the
lease would be construed in accordance with the laws of Afghanistan.  Respondent’s
Statement of Undisputed Material Facts ¶¶ 38-39, 51-52, 64-65, 76-77.

CBCA 7576 5
II. Facts Leading to the Dispute
In February 2020, the United States signed the “Agreement for Bringing Peace to
Afghanistan between the Islamic Emirate of Afghanistan which is not recognized by the
United States as a state and is known as the Taliban and the United States of America,”
referred to as the “Doha Agreement.”  Respondent’s Statement of Undisputed Material Facts
¶ 79.  On August 15, 2020, the Taliban entered Kabul.  Id. ¶ 88.  Subsequently, the Ghani
administration, which led the Government of the Islamic Republic of Afghanistan, collapsed. 
Id.
In the period leading up to the Taliban advance, DOS evacuated properties peripheral
to the embassy, including those at issue here.  Respondent’s Statement of Undisputed
Material Facts ¶¶ 81, 86-87.  When it left the properties, DOS did not dismantle some of the
fixtures that it had installed.  Appellant’s Statement of Undisputed Material Facts ¶ 81.  On
August 31, 2021, the U.S. embassy suspended its operations in Kabul.  Id. ¶ 56.  After DOS
left the properties, Mutakaber’s representative made two attempts to access the properties,
but the Taliban prevented the representative from gaining access.  Respondent’s Statement
of Undisputed Material Facts ¶¶ 117-18.
Following suspension of the embassy mission, DOS discussed whether to maintain
or terminate its leases for properties in Kabul.  Respondent’s Statement of Undisputed
Material Facts ¶¶ 83-84.  For some properties, DOS entered an arrangement for Qatar to
serve as a protecting power for U.S. diplomatic and consular interests in Afghanistan. 
Appellant’s Statement of Undisputed Material Facts ¶¶ 59-61.  The four properties were not
included in this arrangement.  Id. ¶ 62.
On September 23, 2021, DOS issued termination notices for the leases, referencing
article 12 of the lease in each notice.  Appellant’s Statement of Undisputed Material Facts
¶¶ 65-68.  DOS did not explain why it was terminating the leases pursuant to article 12.  Id. 
For the Maryland lease, DOS had paid rent through September 1, 2021, and DOS did not
request the refund of any rent.  Id. ¶ 65.  For the PA+CT lease, DOS requested a refund of
$276,657.53 for the period September 24, 2021, the termination date, through December 31,
2021, the date through which DOS had paid rent in advance.  Id. ¶ 66.  For the Guam lease,
DOS requested a refund of $51,287.67 for the period September 24, 2021, through
January 31, 2022, the date through which DOS had paid rent in advance.  Id. ¶ 67.  For the
Champagne lease, DOS requested a refund of $86,991.78 for the period September 24, 2021,
through March 31, 2022, the date through which DOS had paid rent in advance.  Id. ¶ 68.
On June 8, 2022, Mutakaber filed a claim contesting the terminations of the leases and
DOS’s requests for refunds.  Respondent’s Statement of Undisputed Material Facts ¶ 126. 
The contracting officer denied the claim on August 8, 2022, and reiterated DOS’s demand

CBCA 7576 6
that Mutakaber refund DOS $384,306.84 for rent paid in advance past the termination date. 
Notice of Appeal, Attachment A at 6.  Mutakaber timely appealed the contracting officer’s
final decision to the Civilian Board of Contract Appeals on November 7, 2022.  Notice of
Appeal.
Discussion
I. The Lease Terminations Are Converted to Terminations for Convenience
A. DOS Fails to Establish That Termination Was Proper Under Article 12
DOS asserts that its terminations were proper because the Taliban takeover “was an
act of a third party, akin to war, civil disturbance, or similar casualty, that rendered the
premises unfit for further tenancy” per article 12 of the leases.  Respondent’s Motion for
Summary Judgment (Respondent’s Motion) at 8-9.  To decide this claim, the Board must
interpret the meaning of the article 12 language “unfit for further tenancy” and determine
whether the facts here fall within the circumstances contemplated in article 12 that would
justify the terminations.
We look first to the plain language of the lease contract.  Foley Co. v. United States,
11 F.3d 1032, 1034 (Fed. Cir. 1993).  “[P]rovisions of a contract must be so construed as to
effectuate its spirit and purpose . . . an interpretation which gives a reasonable meaning to
all of its parts will be preferred to one which leaves a portion of it useless, inexplicable,
inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical
result.”  Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991) (quoting Arizona
v. United States, 575 F.2d 855, 863 (Ct. Cl. 1978)).  Given that the clause provides for the
immediate cancellation of DOS’s obligation to pay rent, the termination is akin to a
termination for default, wherein the agency bears the burden to prove the termination was
justified.  See generally Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed.
Cir. 1987).
The clause in each of the leases gave DOS the right to terminate should some physical
event render the property itself destroyed or unfit for occupation.  The first indicator of this
construction is found in the title of the article 12 clause, “Destruction of Premises.”  This
title suggests that the type of event that would merit a termination under article 12 would
need to alter the habitability or physical use of the property.  The text of the article 12 clauses
supports this construction: “Whenever the Premises or any essential part thereof shall be
destroyed or rendered unfit for further tenancy through fire, explosion, vandalism,
earthquake, flood, storm, war, act of terrorism, civil disturbance, Act of God, or other similar
casualty, this Lease shall, at the option of the [tenant], immediately terminate.”  DOS’s right
to terminate arises when some kind of event occurs that affects the “[p]remises or any

CBCA 7576 7
essential part thereof,” clarifying that the impact of the events listed in the clause must be to
the physical premises or the environs.  The type of events contemplated that would destroy
or render the premises unfit for further tenancy, such as fires, explosions, earthquakes, and
floods, would all have an immediate and obvious destructive impact to properties.  Reading
the other listed events in this context, including the circumstances of war or civil disturbance
relied upon by DOS, makes clear that these events must cause some kind of similar
destructive impact to justify termination under the clause.  Finally, article 12 gives DOS the
option to terminate or partially terminate immediately the lease of the property or portion of
the property damaged by an event, which reinforces the idea that the damage to the premises
that would give DOS the right to terminate must be of a nature that requires DOS to
determine whether it can continue to use or inhabit the damaged properties.
DOS puts forth no material facts showing that the Taliban occupation destroyed the
premises or damaged them to such an extent that they were rendered unfit for further
tenancy.  Instead, DOS asserts that the Taliban takeover “created a dangerous security
situation that . . . [made] it impracticable for the U.S. Embassy to maintain operations in
Afghanistan.”  Respondent’s Motion at 9.  This assertion does not demonstrate that the
properties themselves were destroyed or rendered unfit for tenancy, as required by the clause. 
Instead, it appears that the Taliban takeover created a situation which affected DOS’s ability
to carry out its mission in Afghanistan and eliminated its need for the properties, rather than
any determination about the condition of the properties.
 
After it suspended embassy operations, DOS waited almost a month to terminate the
Maryland, PA+CT, Guam, and Champagne leases.  DOS did not claim that it discovered
some destruction or damage to the premises during those periods that influenced its decisions
to terminate.  Rather, DOS admits that it undertook discussions internally whether to
terminate its Afghanistan leases and that, for some leases, it entered into an agreement with
Qatar to protect its interests.  DOS’s decision to terminate the four leases did not arise from
any destruction or damage to any of the houses themselves.  DOS has not met its burden of
justifying its terminations pursuant to the requirements of article 12 in the leases.
B. Terminations Were Proper Under Article 14
DOS argues in the alternative that its terminations were proper pursuant to article 14
of the leases.  In considering this alternative argument, the Board looks to the judicial
doctrine of constructive termination.  “Constructive termination is applied when the basis
upon which a contract was actually terminated is legally inadequate to justify the action
taken.”  Maxima Corp. v. United States, 847 F.2d 1549, 1553 (Fed. Cir. 1988).  In such
cases, so long as the contract was actually terminated and contains a termination for
convenience clause, an improper termination “will not be considered a breach but rather a
convenience termination.”  Id. (quoting G.C. Casebolt Co. v. United States, 421 F.2d 710,

CBCA 7576 8
712 (Ct. Cl. 1970)).  When a court finds constructive termination the proper remedy, the
contractor will be entitled to the amount owed under a termination for convenience.  See
John Reiner & Co. v. United States, 325 F.2d 438, 444 (Ct. Cl. 1963).
DOS terminated the leases on September 23, 2021.  Because DOS had the right to
terminate the leases for convenience under article 14 on that date, we construe the
terminations to be terminations for convenience pursuant to article 14, with notice given on
the date that DOS issued the terminations.  Maxima, 847 F.2d at 1553-54.
In light of this conversion to terminations for convenience, what remains in dispute
is the amount of rent either owed to Mutakaber or to be refunded by Mutakaber to DOS
pursuant to article 14.  Reiner, 325 F.2d at 444.  We return the matter to the parties to
calculate the amounts owed with the following guidance.  Article 14 of the Maryland,
PA+CT, and Guam leases provided that DOS will pay rent for sixty days after the notice of
the termination for convenience while article 14 of the Champagne lease provided for thirty
days.
For the Maryland lease, because DOS paid rent only through September 1, 2021,
twenty-three days before the notice of termination, Mutakaber is entitled to an additional
eighty-three days’ rent.  The parties shall determine this amount.  Mutakaber is also entitled
to receive CDA interest on the determined amount, calculated from June 8, 2022, the date
Mutakaber filed the claim with DOS.
For the PA+CT lease, DOS sought a refund of $276,657.53.  Mutakaber is entitled to
rent for sixty days past the date of the termination notice.  The parties shall determine the
amount Mutakaber owes DOS, an amount that will include CDA interest starting on
August 8, 2022, the date the contracting officer issued the final decision asserting the right
to a refund.
For the Guam lease, DOS sought a refund of $51,287.67.  Mutakaber is entitled to rent
for sixty days past the date of the termination notice.  The parties shall determine the amount
Mutakaber owes DOS, along with CDA interest starting on August 8, 2022.
For the Champagne lease, DOS demanded a refund of $86,991.78.  Mutakaber is
entitled to rent for thirty days past the date of the termination notice.  The parties shall
determine the amount Mutakaber owes DOS, an amount that will include CDA interest
starting August 8, 2022.

CBCA 7576 9
II. DOS Was Not Required to Return Physical Control of the Houses After Termination 
Mutakaber contends that DOS did not terminate the leases because DOS failed to
return physical control of the properties.  We find the leases contained no such requirement.
Determination of this issue again requires us to first look to the plain language of the
contracts.  Foley, 11 F.3d at 1034; Gould, 935 F.2d at 1274.  When the provisions of the
contract are “clear and unambiguous, they must be given their plain and ordinary meaning,”
and the Board “may not resort to extrinsic evidence to interpret them.”  McAbee
Construction, Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996) (citations omitted).
Neither article 12 nor article 14 contained any language placing a duty on DOS to
return the property after termination.  Other clauses in the leases suggest that no such duty
existed.  Article 4 of the Maryland, PA+CT, and Guam leases (the Champagne lease does
not contain a renewal provision) stated the tenant must give sixty days’ notice of renewal or
“any renewal period would otherwise expire.”  Article 4 required no action from DOS for
turnover of the property at the end of the lease.  We cannot construe a requirement to
undertake an action upon termination for convenience that does not exist at the end of the
lease.  Similarly, article 8 in each of the leases permitted DOS to install fixtures and make
modifications to the property and allowed that such modifications “may be removed” at the
end of the lease.  “May” is permissive and therefore imparted no duty on DOS to alter the
property upon the end of the lease term.  Moreover, pursuant to article 8 of the Maryland,
PA+CT, and Guam leases, DOS is only responsible for damage that it caused, not for the
actions of third parties, including the Taliban.  See Ieyada M. Ahirir v. Department of State,
CBCA 6644, 22-1 BCA ¶ 38,044, at 184,752 (based upon similar lease provision, DOS
determined not to be responsible for damage to property that occurred during Libyan civil
war after DOS vacated the property).  Article 8 of the Champagne lease stated that DOS
would not be responsible for any damage to the property and the premises could be returned
in an “as is” condition.  These provisions belie Mutakaber’s contentions that DOS still
possesses the property because of the fixtures and equipment left behind or that DOS was
obligated to protect the property from the Taliban.
We will not read duties into the lease that do not exist.  Because the plain text of the
leases placed no turnover requirement on DOS, we need not look to the Afghan Civil Code
to supplement the terms of the lease.  McAbee Construction, 97 F.3d at 1435; cf. The Heirs
of Bahwouddin, Son of Neyaz Mohammad v. Department of State, CBCA 7135, 22-1 BCA
¶ 38,212, at 185,565.
Mutakaber cites to DOS’s Foreign Affairs Manual (FAM), which requires, in part,
that “[t]ermination of all leases must be executed in accordance with the specific terms of the
lease and local laws.”  Appellant’s Motion for Partial Summary Judgment (Appellant’s

CBCA 7576 10
Motion) at 10-13 (citing 15 FAM 344).  As concluded above, the terminations were proper
under article 14 of the leases.  Mutakaber has not established that this DOS policy was
created for its benefit or that it provides a cause of action for Mutakaber.  Freightliner Corp.
v. Caldera, 225 F.3d 1361, 1365 (Fed. Cir. 2000) (citing Cessna Aircraft Co. v. Dalton, 126
F.3d 1442, 1451-52 (Fed. Cir. 1997)).  Therefore, the purported failure to follow this DOS
policy does not provide Mutakaber with a basis to overturn the terminations for convenience. 
Mutakaber also cites to language from a sample lease termination agreement within the FAM
that provides that “the Landlord hereby acknowledges that the Premises (and furnishings)
were returned by the Tenant to the Landlord on [date], in a condition acceptable to the
Landlord, free of any and all claims against the United States Government.”  Appellant’s
Motion at 11.  This language does not expand the requirements of the leases found
in article 8.
Finally, Mutakaber argues that the covenant of good faith and fair dealing created an
obligation that DOS protect and maintain the premises to ensure that the premises were
returned to the landlord following termination.  Mutakaber asserts that DOS breached this
duty when it failed to terminate the leases prior to the Taliban taking over Kabul or by not
placing the properties under the protection agreement DOS reached with Qatar.  The
covenant of good faith and fair dealing imposes a duty on both parties “not to act so as to
destroy the reasonable expectations of the other party regarding the fruits of the contract.” 
Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005).  However, the covenant
“cannot expand a party’s contractual duties beyond those in the express contract or create
duties inconsistent with the contract’s provisions.”  Metcalf Construction, Co. v. United
States, 742 F.3d 984, 991 (Fed. Cir. 2014) (quoting Precision Pine & Timber, Inc. v. United
States, 596 F.3d 817, 831 (Fed. Cir. 2010)).  Mutakaber’s argument fails because, as we have
determined, the lease contained no duty to return the property or protect the properties from
third parties.  Instead, article 8 specifically relieved DOS of responsibility for damages to the
properties caused by third parties not under DOS’s control.  Because there is no duty in the
express terms of the contract, we find no violation of the duty of good faith and fair dealing. 
Decision
Mutakaber’s motion for partial summary judgment is DENIED, and DOS’s motion
is GRANTED IN PART.  The Board will issue a separate order scheduling further
proceedings to determine the amounts owed based upon this decision.
   Marian E. Sullivan          
MARIAN E. SULLIVAN
Board Judge

CBCA 7576 11
We concur:
     Joseph A. Vergilio              Allan H. Goodman        
JOSEPH A. VERGILIO ALLAN H. GOODMAN
Board Judge Board Judge