MOTION TO DISMISS OR IN THE ALTERNATIVE 
FOR SUMMARY AFFIRMANCE DENIED:  July 22, 2008 
CBCA 1056 
SECOND STREET HOLDINGS LLC, 
Appellant, 
v. 
SECURITIES AND EXCHANGE COMMISSION, 
Respondent. 
Jerry L. Shulman, Gregory B. Craig, Ari S. Zymelman, and Thomas A. Craig of 
Williams & Connolly LLP, Washington, DC, counsel for Appellant. 
George C. Brown, John P. Sholar, and Paul Brockmeyer, Office of the General 
Counsel, Securities and Exchange Commission, Washington, DC, counsel for Respondent. 
Before Board Judges STERN , GOODMAN , and STEEL . 
GOODMAN , Board Judge. 
On January 24, 2008, appellant, Second Street Holdings, LLC, filed an appeal from 
a final decision, dated October 26, 2007, of a contracting officer for respondent, the 
Securities and Exchange Commission (SEC). Respondent has filed a motion to dismiss or, 
in the alternative, for summary affirmance. Various responses and replies to these motions 
have been filed by the parties.  We deny respondent’s motion. 

  
   
      
  
 
 
  
 
 
    
       
   
 
  
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Background 
The Lease, the Dispute, and the Contracting Officer’s Final Decision 
Appellant is a solely-owned subsidiary of Louis Dreyfus Property Group (LDPG) and 
the sole owner and lessor of the building known as Station Place Building One (the building), 
located at 100 F St., N.E., Washington, D.C.  Appellant is the successor to LDPG’s interest 
in the building and lease number SEC 003-DC (the lease), awarded to LDPG on May 29, 
2001.  Complaint ¶ 3.  At the time of lease award, the building had not been constructed.  Id . 
¶ 9. 
The lease stated that the building and the leased space were to be constructed to be 
accessible to the handicapped in accordance with the Americans with Disabilities Act 
Accessibility Guidelines and the Uniform Federal Accessibility Standards and where these 
standards conflict, the more stringent shall apply.  The lease contained various provisions 
detailing these requirements.  Appeal File, Exhibit 1 at 26.  We refer in this decision to these 
provisions of the lease as the “accessibility requirements.” 
LDPG constructed the building to lease it to the SEC as its new headquarters.  The 
building was constructed so that those entering the main atrium lobby must use stairs or a 
platform (wheelchair) lift in order to access the primary elevator bank.  There is no elevator 
or ramp serving the primary elevator bank from the atrium lobby.  Complaint ¶¶ 13-17. 
With regard to the preparation, finalization, and approval of the design of the main 
atrium lobby, appellant and respondent submit detailed conflicting explanations as to the 
individuals involved, the chronology of events that occurred, and the contractual 
responsibilities that governed.  Respondent’s Statement of Uncontested Facts at 2-4; 
Appellant’s Statement of Genuine Issues at 2-4. 
The SEC accepted the building and the lease term commenced on April 25, 2005. 
Complaint ¶ 17.  The SEC asserts that after the lease term commenced, employees and 
members of the public complained that handicapped individuals and others who are not able 
to use the stairs must then use the platform lift after entering the atrium lobby to access the 
main elevator bank.  Appeal File, Exhibit 22.  When the SEC informed LDPG as to these 
complaints, LDPG responded, asserting that the building complied with the accessibility 
requirements of the lease.  Appeal File, Exhibit 23. 
The SEC states that during summer 2006, the Department of Justice’s (DOJ) 
Disability Rights Section was consulted as to whether the atrium lobby and main elevator 
bank complied with the accessibility requirements of the lease. The DOJ performed an 

     
     
      
 
  
  
  
 
    
      
  
 
  
  
  
   
 
  
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on-site examination of the platform lift and atrium lobby and then provided a letter dated 
September 12, 2006 (Appeal File, Exhibit 24), which the SEC shared with appellant (Appeal 
File, Exhibit 25), containing its opinion
1 that use of a platform lift instead of an elevator or 
ramp to provide disability access between the atrium lobby and main elevator bank did not 
comply with accessibility requirements. 
The SEC obtained an additional assessment from Bill Hecker, AIA, an outside expert. 
Mr. Hecker also performed an on-site examination of the atrium lobby and provided an 
opinion dated November 22, 2006, which the SEC shared with appellant, that concluded that 
the platform lift was noncompliant with the accessibility requirements of the lease.  Appeal 
File, Exhibit 33; Complaint ¶ 21. Mr. Hecker provided a supplemental report dated May 25, 
2007, analyzing potential cures for the alleged noncompliance.  This report, which the SEC 
shared with appellant, concluded that only an elevator or ramp between the atrium lobby and 
main elevator bank would provide compliant access between the two levels.  Appeal File, 
Exhibits 32, 33; Complaint ¶ 21. 
The SEC contracting officer issued a letter entitled “Final Decision and Notice to 
Cure” dated October 27, 2007, in which she stated: 
The SEC began discussion with [LDPG] about potential steps to correct the 
situation; however when the SEC raised the issue of [LDPG’s] financial 
responsibility for any cure, [LDPG] stated that it was stopping work on 
corrective steps until the issue was resolved. 
Although [LDPG] has maintained that the platform lift is permitted under 
accessibility guidelines, it has never provided any authoritative support for this 
position.  As a result, the SEC undertook a study to determine whether the use 
of a platform lift in this location was acceptable under the accessibility 
requirements that apply to Building One under the Lease and applicable law. 
Appeal File, Exhibit 35. 
The contracting officer’s final decision then set forth the SEC’s interpretation of the 
lease’s accessibility requirements in conjunction with its study, including consultation with 
1 The letter characterizes the opinion contained therein as “technical assistance” and 
stated:  “As with all technical assistance, this letter does not bind the Department of Justice 
in any later legal dispute, investigation, matter, or litigation, including any interpretation of 
the applicability of statutory provisions.”  Appeal File, Exhibit 24 at 2. 

 
    
   
 
   
     
   
     
  
 
  
  
 
 
 
 
  
      
4 CBCA 1056 
the DOJ’s Disability Rights Section and Mr. Hecker,  and concluded that the platform lift did 
not comply with the accessibility requirements and that LDPG had a continuing obligation 
to bring the building into compliance.  Id .  Additionally, the contracting officer’s decision 
stated: 
[LDPG’s] use of a platform lift between the atrium lobby and the main 
elevator bank in [the building] is in violation of the Lease and applicable 
accessibility requirements.  [LDPG] is obligated at its sole expense to correct 
this breach. Accordingly, pursuant to Clause 15
[2]  of the [lease], [LDPG] is 
directed to implement the steps indicated below to cure this default within 
sixty (60) days of the date of this Contracting Officer’s Final decision. 
Potential cures of the current non-compliance may involve construction of an 
additional elevator to connect the atrium lobby with the main elevator bank on 
the ground level, or constructing a new building entrance on the lower level 
which will connect the Building One main elevator bank to the common 
connector corridor linking all three Station Place Buildings. 
Id. 
The contracting officer’s decision concluded by stating  appeal rights pursuant to the 
Contract Disputes Act and a direction to comply with the cure notice portions of the decision 
pursuant to the Disputes clause, clause 36 of the lease. 
3 Id. 
By letter dated November 16, 2007, Robert H. Braunholer, Regional Vice President 
of LDPG, responded to the contracting officer’s final decision, stating in part: 
2 Clause 15(b) of the lease reads in relevant part:  “If, during the Lease term, any 
physical element or condition either within or affecting tenantability of the Premises 
deteriorates or fails such that a capital repair or replacement is necessary, and if Lessor fails 
to repair or replace such element(s) or cure or correct the condition after the Government has 
provided Lessor with reasonable notice, then such failure shall constitute default under the 
lease.”  Appeal File, Exhibit 1 at 85. 
3 Clause 36 reads in relevant part:  “The Contractor shall proceed diligently with 
performance of this Contract, pending final resolution of any request, claim, appeal or action 
arising under the contract, and comply with any decision of the contracting officer.”  Appeal 
File, Exhibit 1 at 98. 

 
 
 
  
 
   
   
 
    
 
   
  
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We hereby request that you withdraw for reconsideration the Final Decision 
you issued on October 26, 2007, regarding the lobby access requirements of 
Station Place Building One.  We are not here arguing the merits of that Final 
Decision, although we reserve all rights of appeal on the matters dealt with 
therein.  Rather, we request your withdrawal for reconsideration because of a 
material procedural infirmity. 
Your Final Decision is styled as a Notice to Cure under Clause 15 . . . of the 
Lease. However, Clause 15 simply does not apply to disagreements such as 
this one, and its misapplication here is both clearly erroneous and materially 
detrimental to Second Street Holdings LLC (the “Lessor”). 
Clause 15 of the Lease is titled “Failure in Performance” and is . . . a “repair 
and deduct” provision which applies only to (a) a failure to provide contracted 
for services, utilities, or maintenance, and (b) a failure to repair or replace a 
physical element or condition of the property that has deteriorated or failed. 
The Clause is thus totally inapposite to the current dispute, which involves 
neither a failure to provide a service nor an issue of repair or replacement. . . . 
If you, as the Contracting Officer, conclude (incorrectly, in our view) that the 
Lessor has breached an obligation under the Lease because it has failed to 
comply with some legal standard regarding access, then the only applicable 
provision of the Lease would be Clause 18 (Compliance with Applicable 
Law). . . .  And, while Clause 15 expressly provides self-help remedies to the 
Tenant and requires the Lessor to implement steps to cure the perceived 
default within sixty days, Clause 18 contains none of these remedies. . . . 
If, in the alternative, you were to order the Lessor to undertake specific work 
as a “Change” to the premises under Clause 33 of . . . the Lease, you would 
then be required to provide materially more detail as to the Change to be 
effected and would be required to follow the procedures set out in that Clause; 
the Lessor then could make a demand for payment that could eventually be 
resolved in the usual manner. . . . 
Appeal File, Exhibit 36. 

 
 
   
 
 
   
        
 
 
 
     
     
 
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The contracting officer responded by letter dated December 12, 2007, which read in 
part: 
I disagree with your assertion that Clause 15 does not apply to the current 
dispute. . . .  Under Clause 15(b), when a “physical element or condition either 
within or affecting the tenantability of the Premises deteriorates or fails such 
that a capital repair or replacement is necessary” and Dreyfus does not “cure 
or correct the condition” (after notice from the Government and opportunity 
for  . . . cure) . . . failure becomes a default under the lease. 
Appeal File, Exhibit 38. 
Appellant’s Appeal and Complaint 
Appellant filed a notice of appeal with this Board on January 24, 2008, and a 
complaint on February 28, 2008.  In its complaint, appellant asserts that clause 15 of the lease 
is not the correct contractual clause for the SEC to use if the SEC believes the lobby does not 
meet the accessibility requirements and must be corrected.  Rather, the complaint asserts that 
clause 33 (Changes) of the lease would be the proper clause, and the contracting officer’s 
final decision was not sufficient direction to proceed pursuant to this clause. Complaint ¶ 26. 
The complaint also stated: 
On January 18, 2008, while retaining its rights to appeal the Contracting 
Officer’s decision to require a repair under Clause 15, appellant informed the 
SEC that it had retained an expert in the field and determined that, if a change 
were to be made in the configuration of the lobby, there were more efficient 
and cost effective solutions to the perceived . . . access problem then [sic] the 
lobby elevator proposed by the Contracting Officer.  Specifically, appellant 
determined that simply installing an additional platform lift on the opposite 
side of the main stairwell would meet the requirements of the applicable 
regulations as an “equivalent facilitation,” as that term is used in paragraph 2.2 
of the ADA Standards for Accessible Designs (the “two-lift solution”) and, 
further, that doing so would be much less expensive. . . .  Appellant met with 
the acting Contracting Officer to discuss those plans on January 20, 2008. . . . 
Appellant requested that the SEC approve implementation of the two-lift 
solution, and agree that it resolves whatever access problems the SEC 

  
 
   
    
  
 
       
     
  
   
  
 
       
           
     
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perceives.  Id. At the time of the filing of this complaint, Appellant has not 
received a response. . . . [4] 
Id. ¶¶ 29, 30. 
In the complaint’s prayer for relief, appellant asks the Board to: 
1.  Declare that Clause 15 [of the lease] is inapplicable to this dispute; 
2. Order that Appellant is not required to respond to the notice of cure or to 
proceed under that Clause 15, and is entitled to recoup all costs incurred in 
responding to the Final Decision; and 
3. Declare that if the Contracting Officer proceeds under the appropriate 
contract term to require Landlord to cure the alleged lack of compliance with 
the access regulation, that Appellant’s obligations are limited to the minimum 
necessary to address the lack of compliance. 
Complaint at 12. 
Appellant’s Response to the Final Decision and Notice of Cure 
After filing this appeal, appellant sent a letter dated March 7, 2008, to the contracting 
officer which stated in part: 
We continue to believe that your direction to us to install an elevator under 
Clause 15 is improper, and that it will make the government liable for the costs 
incurred by Louis Dreyfus in acting at your direction. . . .  [E]ven if Clause 15 
were applicable, it would require the SEC to install the elevator and then to 
seek to recover its cost from us, rather than authorizing the SEC to demand 
that the Landlord do so. Those issues currently are on appeal.  In the 
meantime, we do not believe it is in anyone’s interest to have the SEC proceed 
further under Clause 15, to declare a default, and then to be forced to wait 60 
days before it could begin installing an elevator as a form of self-help. 
4 DOJ responded by letter dated April 24, 2008 stating that “the proposal to add a 
second lift in lieu of an elevator at the main entrance to the building, which was built after 
the ADA new standards took effect, would not satisfy those requirements.”  Appeal File, 
Exhibit 43. 

  
 
 
    
 
 
   
 
 
  
 
 
 
 
    
    
     
   
 
8 CBCA 1056 
Accordingly, at your direction, but without conceding your authority to do so 
or waiving any of our rights to recover the costs of the elevator, we will follow 
your direction and install an elevator in the Station Place Lobby in a timely 
fashion.  . . .  [B]y complying with this direction Louis Dreyfus is not waiving, 
and specifically reserves, any and all rights in its appeal currently pending 
before the Civilian Board of Contract Appeals . . . and any rights to file future 
claims and/or appeals as they mature with regard to this direction and this 
undertaking. 
Respondent’s Motion, Attachment 1. 
Thereafter, by letter dated March 14, 2008, to the contracting officer, appellant stated: 
On March 7, 2008, I wrote to inform you that, subject to the reservation of 
rights set out in my March 7th letter, we were complying with your March 1, 
2008 e-mail directing us to install an elevator in the Building 1 lobby.  In my 
letter, I informed you that we would provide a schedule for that work by today. 
I am now writing to provide that scheduling information insofar as information 
is currently available. . . . We have conferred with the project architect, . . . as 
well as our mechanical and structural engineers and our consulting contractor. 
We estimate that the entire project will take just under a year to complete.  The 
detailed drawings and plans for the project will take about eight weeks to 
prepare, in large part because the project requires a structural change to the 
building, and considerable structural and mechanical engineering analysis is 
required before the plans can be completed. Once the plans are complete, our 
contractor will be able to obtain final bids on the work and begin fabrication 
and other preparation for construction. From that point, the project will take 
approximately nine months to complete, including about six months of on-site 
demolition and construction.  Thus, assuming no unanticipated difficulties, and 
also that we are able to obtain approval of our plans in a timely fashion, the 
entire project should take between 11-12 months to complete. 
Respondent’s Motion, Attachment 2. 

 
  
 
  
 
 
     
    
     
 
 
 
 
 
      
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Discussion 
Respondent’s Motion to Dismiss 
Respondent bases its motion to dismiss on the assertion that appellant’s actions in 
response to the contracting officer’s final decision have rendered moot the specific prayers 
for relief in appellant’s complaint.  The motion reads in part: 
Significantly, after filing its Complaint, Appellant advised the Contracting 
Officer by letter dated March 7, 2008, that Appellant intends to follow the 
Contracting Officer’s Notice to Cure by installing an elevator as directed. . . . 
And, by letter dated March 14, 2008, Appellant stated that it would proceed to 
develop plans, put out bids, and construct the required elevator, and that the 
project would be completed in approximately one year. . . .  These 
developments eliminate any controversy over the three prayers for relief in 
Appellant’s Complaint. . . .  Accordingly, since Appellant is proceeding with 
the specific actions that its Complaint seeks to avoid, these prayers should be 
dismissed for failure to state a claim in actual controversy. Further, as to the 
subordinate element of Appellant’s second prayer for relief, that it is “entitled 
to recoup all costs incurred in responding to the Final Decision;” [footnote 
omitted] that too is appropriate for dismissal, as Appellant does not allege any 
written SEC amendment to the Lease removing Appellant’s obligation to 
comply with accessibility requirements.  Further, should the Board look 
beyond the failure of the Complaint to set forth matters in actual controversy 
or legally cognizable, the undisputed facts in the Complaint and Appeal File 
confirm the correctness of the Final Decision and Notice to Cure. 
Respondent’s Motion at 2-3. 
Respondent’s argument that the complaint is rendered moot by appellant’s actions in 
response to the contracting officer’s final decision lacks merit.  The contracting officer’s 
final decision stated a government claim for breach based upon a determination of 
noncompliance with the accessibility requirements of the lease, directed the appellant to 
correct the alleged noncompliance by performing certain work, and stated appeal rights. 
Appellant has appealed the final decision to this Board.  While appellant has indicated that 
it will perform the work as directed by the contracting officer, appellant emphasizes that it 
does so as required by the Disputes clause of the contract, which requires that the contractor 
shall comply with any decision of the contracting officer.  Appellant’s Opposition to 
Respondent’s Motion at 17-19. By complying with the decision of the contracting officer, 
the controversy is not rendered moot as respondent alleges, as appellant has specifically 

   
  
  
   
  
 
          
    
  
 
  
   
 
 
 
10 CBCA 1056 
reserved its right to challenge the legal basis and factual basis of the government’s claim for 
breach of the lease as stated in the contracting officer’s decision, has requested compensation 
for performing the work, and has proceeded to do so in this appeal. 
The actions taken by appellant in response to the contracting officer’s final decision 
and notice of cure do not eliminate the controversy over the three prayers for relief.  The first 
prayer of the complaint challenges the applicability of clause 15 of the lease to the dispute. 
The actions of appellant in performing work do not resolve this issue, which itself is raised 
by the contracting officer’s final decision.  Appellant continues to contend that this clause 
is not the correct contractual provision to undertake the work it is performing. 
The second prayer of the complaint is that the Board is requested to “[o]rder that 
Appellant is not required to respond to the notice of cure or to proceed under that Clause 15, 
and is entitled to recoup all costs incurred in responding to the Final Decision.”  While 
appellant is proceeding to perform work in response to the final decision, the question 
remains as to whether appellant is required to do so at its own cost as alleged by respondent 
or whether appellant is entitled to be paid its cost for compliance as a change order pursuant 
to clause 33 of the lease.  Accordingly, the second prayer of the complaint is not moot. 
The third prayer of the complaint is a request that the Board “[d]eclare that if the 
Contracting Officer proceeds under the appropriate contract term to require Landlord to cure 
the alleged lack of compliance with the access regulation, that Appellant’s obligations are 
limited to the minimum necessary to address the lack of compliance.”  This prayer poses the 
issue of level of compliance, an issue raised in the contracting officer’s final decision and 
also by appellant’s proposed “two lift solution,” which was rejected by DOJ as non­
compliant.  Again, appellant’s performance of work does not resolve this issue, and the third 
prayer of the complaint is not moot. 
The motion to dismiss the complaint is denied. 
Respondent’s Motion for Summary Affirmance 
The purpose of summary relief is to resolve a matter on the law where there are no 
specific factual issues which could vary the result.  The Board does not weigh evidence when 
considering whether to grant summary relief.  Once the non-moving party offers enough 
evidence to establish that its position could prevail, summary relief must to be denied. 
Chanhassen Venture, Ltd. v. Department of Commerce , CBCA 789, 08-1 BCA ¶ 33,826. 
That is the case here. 

 
  
   
 
    
  
     
  
 
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11 CBCA 1056 
The initial issue which must be decided in this appeal is whether appellant has 
complied with the accessibility requirements of the lease.  It is evident to the Board that there 
is a significant disagreement as to whether the lobby of the building as built and accepted by 
the SEC was compliant with the accessibility requirements and the manner of any corrective 
action, if any, that must be undertaken.  Respondent has posited a letter of technical 
assistance from DOJ (with disclaimer language indicating that the opinions are not binding 
in litigation) as a basis of the contracting officer’s determination of non-compliance and has 
directed the contractor to undertake specific corrective action.  Appellant has countered with 
its own allegations of compliance and an expert’s allegations as to the level of any corrective 
action.  The determination of the existing lobby’s compliance or non-compliance with the 
accessibility requirements of the lease therefore cannot be resolved on summary relief, as 
conflicting issues of material fact exist on this issue. 
Additionally, the parties submit conflicting facts detailing the events involved in the 
design of the lobby.  These facts purport to place legal responsibilities on the parties with 
regard to the design’s compliance or non-compliance with the accessibility requirements. 
Because of the disagreement as to these material facts, the ultimate responsibility of the 
parties arising therefrom cannot be resolved on summary relief. 
Decision 
Respondent’s motion to dismiss, or in the alternative, for summary affirmance, is 
DENIED . 
ALLAN H. GOODMAN 
Board Judge 
We concur: 
JAMES L. STERN CANDIDA S. STEEL 
Board Judge Board Judge